PUBLIC PROSECUTOR HIGH COURT OF A P HYDERABAD Vs. KATIA KNSHNAMURLHY

JUDGEMENT

(1.) This is an appeal by the State against acquittal of|therespondent. Tht respondent was prosecuted for an offence punishable under Section 340 (c) read with Section 211 of the Andhra Pradesh Municipalities Act, 1965 (hereinafter referred to as the Act) on the allegation that he has constructed a shop room afler demolishing the old building Door No. 7-3-29 without permission as provided under Section 211 of the Act. That without premission the respondent did the act complained of b not in dispute and that ii is an offence punishable as provided under Sec 340(c) of the Act also is not in dispute It is provided under Section 211 of the Act that the construction or reconstruction of a building shall not be begun unless and until the Commissioner has granted permission for the execution of the work. Provision is made under Section 340 of t c Act for penalty for unlawful building. It is provided under sub-section c) of Section 340 of the Act, that if any construction or reconstruction of any building or well is carried on or completed in breach of any provision contained in the Act the owner ot the building shall be liable on conviction to be fined which may extend in the case of a building to Rs. 500/- subject to a minimum of Rs. 50/-.

(2.) For the same unlawful construction, the respondent was already once prosecuted and convicted under Sec. 340 (c) and fined to pay a fine of Rs. 50/- and in default to suffer S.I. for a period of ten days. The present prosecution was agnn launched on the ground that the unlawful construction still continues and, therefore, it is a continuing offence. The lower court by coming to a conclusion that the alleged offence is not a continuing one, acquitted the respondent. To come to the conclusion that it is not a continuing offence, the learned Magistrate placed reliance on a decision of the Madras High Court in Palanippan v Commissioner of Salem Municipality (1) 1966 M.L.J. (Crl.) p. 595). In that case the prosecution was launched under Section 317 (c) of the Madras District Municipalities Act for failure to comply with a notice under Section 216 (3) of the said Act directing;the accused to remove an unauthorised construction. As provided under Section 347 of the Act, the complaint should be made within three months of the commission of the offence. The prosecution was launched after the expiry of the three months period. Under section 347 of the Act, there is a proviso that the failure to take out a licence, obtain permission or secure registration under the Act shall, for the purposes of xhat Section, be deemed a continuing offence until the expiration of the period, if any, for which the licence, permission or registration is required and if no period is specified, complaint may be made at any time within twelve months front the commencement of the offence. The Madras High Court came to the concusion that where there is H notice given under Section 216 of the Madras Act,dire-ting tie accused thereto to remove the constructions within 3 days of the receipt of the notice by him, the offence was complete on the failure of the accused to remove the constructioa within three days of the receipt of the notice as directed and to such a case the proviso to Section 347 has no application.

(3.) The argument of the learned Public Prosecutor is that the reconstruction of the shop room after demolishing the old one having been made by the respondent without the permission as provided under Section 211 of the Act, so long as that unauthorised construction remains, the offence continues and the respondent is liable foi prosecution more than once at any time so long as that unauthorisedjconstruction remains and not removed by him. Therefore, the question for consideration is whether the offence committed by the respondent in making the unauthorised construction continues so long as the uaauth jrised construction is kept in existence without removal.