M. P. Saxena, J. - (1.) THE Nagar Palika, Chitrakut Dham Karvi has filed this appeal against the order dated 27-3-1976 passed by the Judicial Magistrate, Karwi, in Criminal Case No. 131/75 dropping the proceedings under Section 307 (b) of the U. P. Municipalities Act against Mahadeo Prasad respondent.
(2.) ADMITTEDLY Mahadeo Prasad respondent had made certain unauthorised constructions on the Nagar Palika land on or about 10-12-1972. He was served with a notice under section 186 of the U. P. Municipalities Act to remove those constructions but he did not do so. A. complaint under Sections 185/211/307 of the Municipalities Act was filed against him on 19-2-1974. The Tahsildar Magistrate convicted him and sentenced him to a fine of Rs. 250/- and directed him to remove the constructions forthwith failing which imposed a fine of Rs. 25/- per day till the order was complied with. The respondent filed an appeal before the learned Sessions Judge who by his order dated 8-5-1974 maintained the conviction and fine of Rs. 250/- but set aside the order oi' demolition and fine for continuing breach. As regards demolition he observed : "The order of the Tahsildar Magistrate directing the appellant to remove the construction in this very order and judgment is illegal. It was the work of the Nagar Palika and not that of the Magistrate-------under these circumstances the learned Tahsildar Magistrate was not justified in ordering the appellant to remove the new construction.'' As regards daily fine for continuing breach he observed that there being no order for demolition of the new constructions this question did not arise. Neither party filed an appeal or revision against it and the order became final. On 2-2-1975 the Nagar Palika filed another complaint alleging that Mahadeo Prasad had not demolished the constructions inspite of his conviction and was liable to be punished for continuing breach under section 307 (b). On 3-6-1975 the respondent raised a preliminary objection by means of an application that the complaint was barred by section 300 CrPC. The application was rejected on 31-1-1976 by the following order :: "Heard the parties. In view of the provisions of Section 307 (b) of the U. P. Municipalities Act the present conditions for the imposition of fine for the breach of every day since the date of first conviction upto the date of complaint would not be barred by the provisions of Section 300 CrPC. Therefore, the application stands rejected."
(3.) THEREAFTER the complaint came up for hearing and it was held to be not maintainable. Firstly, that in the absence of compliance of Section 307 (a) proceedings under Section 307 (b) could not be initiated. Secondly that the complaint was vague inasmuch as it did not disclose from which date the damages for continuing breach were claimed. The proceedings were accordingly dropped and the Nagar Palika has now come up in appeal to this Court. Three main points have arisen far determination in this appeal. The first question is whether the order regarding: continuing breach should have been passed in the order of conviction or a separate complaint was maintainable. In Emperor v. Purshottam Kandu, AIR 1935 Allahabad 986 it has been held that separate prosecution is necessary for continuing breach. In Jagannath Achari v. The Municipal Board, Faizabad, 1950 ALJ 592 also a second complaint was filed in respect of continuing breach after the first complaint had resulted in conviction under section 185/307 of the Municipalities Act. Therefore, there can be no manner of doubt that the order regarding continuing breach could not be passed in the first information and the courts had taken a correct view in the first case.;