JUDGMENT : Narasimham, J. - This revision is against the appellate judgment of the Additional Sessions Judge, Puri, maintaining the conviction of the Petitioner u/s 385-A of the Orissa Municipal Act, 1950, passed by a First Class Magistrate of Khurda, but reducing the sentence of fine to Rs. 50/- and to a further fine of Rs. 2/- per day until the offending structure is removed. 2. The prosecution Case is that the Petitioner constructed a temporary shed 011 a site belonging to the Bhubaneswar Notified Area Committee without obtaining the permission of the authorities. This unauthorised structure was noticed by the Executive Officer of the Notified Area Committee who issued a notice to him on the 22nd February, 1954, directing him u/s 278-A of the Orissa Municipal Act to demolish the unauthorised construction by the 25th of that month. The Petitioner however sent a reply dated 25.2.54 stating that he had approached the Administrator of the New Capital, Bhubaneswar by a petition to permit him to keep the temporary shed for some time and requested the Executive Officer to drop the matter. But the Executive Officer rejected his request and sanctioned the prosecution of the Petitioner on 9-3-54. 3. The Overseer of the Bhubaneswar Notified Area Committee stated that on 20.2.54 he saw the temporary shed under construction. The shed was constructed partly with thatch and partly with G.C.I. sheets to serve as a roof. The roof was completed on 22-2-54 with thatch but subsequently G.C.I. sheets were used to cover up the thatch. This was done after the starting of the prosecution. 4. The Petitioner' main defence in the lower Courts was that he did not construct a new shed, but that there was an old shed at the spot belonging to one R.A. Kohili, which was purchased by the Petitioner from Kohili on 23-11-54, and that he subsequently repaired the shed for the purpose of using it temporarily for storing his goods until the erection of a permanent furniture shop later on. He led evidence to show his purchase of the structure from R.A. Kohili and has also examined some defence witnesses to show that R.A. Kohili constructed the temporary shed in 1949 and that as there was some damage to the shed, the Petitioner repaired the same. He led evidence to show his purchase of the structure from R.A. Kohili and has also examined some defence witnesses to show that R.A. Kohili constructed the temporary shed in 1949 and that as there was some damage to the shed, the Petitioner repaired the same. It is admitted that no permission of the Notified Area Committee was taken for altering or repairing the shed in question. 5. On these facts, Mr. A. Das on behalf of the Petitioner challenged the conviction and sentence on the following three grounds: (1) There is no evidence to establish affirmatively that the site on which the shed stands is within the Notified Area of Bhubaneswar. (2) The shed in question is admittedly a temporary shed and as the Notified area Committee has not declared it to be a 'hut' as defined in Section 3(14) of the Orissa "Municipal Act, permission of the Committee was not necessary for repairing or altering the shed. (3) In any view of the case, the sentence of daily fine till the removal of the unauthorised structure is illegal. 6. The first point was taken up before the lower appellate Court and was rightly rejected by that Court. It is true that the prosecution have not proved the Government Notification constituting the Notified Area of Bhubaneswar and describing its boundaries. But a perusal of the entire evidence on record would show that it was the admitted case of both parties that the shed in question is within the Notified Area. In the Petitioner's reply dated 5-2.54 addressed to the Executive Officer and in his petition to the Administrator of the New Capital, Bhubaneswar he practically admitted that the shed in question is within the Notified Area. Similarly the two prosecution witnesses were not cross-examined with a view to show that the disputed shed is outside the Notified Area. Doubtless, if at any stage there had been some indication that this point would be challenged, the prosecution would have prove the map showing the exact limits of the Notified Area of Bhubaneswar and also showing that the disputed shed lies within that area. The Petitioner cannot be permitted to agitate this question, which is essentially a question of fact, at this belated stage. 7. The Petitioner cannot be permitted to agitate this question, which is essentially a question of fact, at this belated stage. 7. To appreciate the second point, it is necessary to reproduce the definition of the expressions "building" and "hut" in the Orissa Municipal Act, 1950: 3(1) 'Building' includes a house, out-house, stable, latrine, shed, hut, wan (other than a boundary wall not exceeding ten feet in height) and any other such structure, whether of masonry, brick, wood, mud, metal or any other material whatsoever. 3(14).- 'Hut' means my building, which is constructed principally of wood, mud, leaves, grass or thatch and includes any temporary structure of whatever size, or any small building of whatever material made, which the council may declare to be a hut for purposes of this Act. 8. It will be noticed that the definition of "building" is wider than the definition of "hut". Any structure made of any material whatsoever other than a boundary wan not exceeding ten feet in height may be a building. A hut or a shed is also a building, but every building may not be a hut. The definition of "hut" consists of two parts, namely, (1) any building which is constructed principally of wood, mud, leaves, grass or thatch, and (2) any temporary structure of whatever size, or any small building of whatever material made, which the council may declare to be a hut for purposes of this Act. Hence if the structure is temporary, it may not be a hut unless the council declares it to be a hut for purposes of this Act, whatever may be the nature of the materials used for its construction. Mr. A. Das relied on the latter part of the definition of "hut" in Section 3(14) of the Orissa Municipal Act and urged that in view of the admitted case of the prosecution that the disputed structure is a temporary shed, it will not be a "hut" unless the council (herein the Notified Area Committee) declares it to be a hut for purposes of this Act. Even assuming this argument to be correct, it does not materially help the Petitioner. The structure in question may not be a "hut" within the meaning of Section 3(14) of the Orissa Municipal Act in the absence of a declaration to that effect by the Notified Area Committee. Even assuming this argument to be correct, it does not materially help the Petitioner. The structure in question may not be a "hut" within the meaning of Section 3(14) of the Orissa Municipal Act in the absence of a declaration to that effect by the Notified Area Committee. But I think, it clearly comes within the definition of "building" in Section 5(1) of the Orissa Municipal Act. It will be noticed that in construing the definition of a "building" the question as to whether it is temporary or permanent does not arise at all. Any structure whether intended to be occupied temporarily or not and of whatever material it may be constructed, would be a building if it is either a house, out-house, stable, latrine, shed or hut or any other similar structure. Hence I think, there can be no doubt that the structure in question is a building. The Petitioner had admitted that he constructed a "temporary shed". 9. The preliminary notice directing the Petitioner to demolish the shed was issued by the Executive Officer u/s 273-A of the Orissa Municipal Act. That Section says, (omitting immaterial portions) If the Executive Officer is satisfied: (i) that the construction or reconstruction of any has been commenced without obtaining the permission of the Executive Officer...he may make a provisional order requiring the owner or the builder to demolish the work done.... This section does not refer to a "hut" but only to a "building". Hence once it is held that the disputed structure is a building though it may not be a hut, it necessarily follows that the Executive Officer has jurisdiction u/s 273-A of the Orissa Municipal Act to direct its demolition, if its construction or reconstruction has been commenced without obtaining his permission. 10. It was however urged that it was not a new shed constructed by the Petitioner, but that he merely repaired an old shed of R.A. Kohili after purchasing the same. Such repair, on the admitted case of the Petitioner, would amount to "reconstruction" as contemplated in Section 273-A(1)(i) D. W. 3 admitted in his cross-examination that the thatch of the old structure of Kohili was damaged and' the wall also had been damaged at several places. The Petitioner reconstructed it by first putting straw thatching and subsequently G.C. 1. Sheets and also repairing the walls by "Jhatimati" and "Tati". The Petitioner reconstructed it by first putting straw thatching and subsequently G.C. 1. Sheets and also repairing the walls by "Jhatimati" and "Tati". Again the Petitioner admitted that the had no other alternative than to construct the temporary shed". Hence, even if I accept the Petitioner's case that he purchased an old shed of R.A. Kohili in 1953, it is well established that he reconstructed the shed on the dates in question. Such reconstruction would therefore be hit by the provisions of Section 273-A and the permission of the Executive Officer should have been taken. 11. The penal section is Section 385-A of the Orissa Municipal Act which says that if a person fails, to obey the direction given by the Executive Officer to demolish a building, he shall be liable on conviction to a fine which may extend in the case of a building to five hundred rupees and in the case of a well or hut to fifty rupees and to a further fine which may extend in the case of a building to one hundred rupees and in the case of a well or hut to ten rupees, for each day during which the offence is proved to have continued after the first day. In this penal provision, a distinction is made between a "building" and a "hut" and for the contravention in respect of a building a severe sentence of Rs. 500/- is provided, whereas if it is in respect of a hut, lesser sentence of Rs. 50/- is provided for such contravention. The two lower Courts thought that the structure in question was a hut and therefore imposed a sentence of Rs. 50/- only. I have already shown that the disputed structure may not come within the definition of a "hut" as it is a temporary structure and has not been declared as a "hut" by the Notified Area Committee. But this decision will not materially affect the sentence. By erroneously holding the disputed structure to be a "hut", the lower Courts have passed the lesser sentence on the Petitioner, whereas if they bad held it to be a "building" they would have imposed a larger amount of fine. The Petitioner is therefore benefited by this error committed by the lower Courts and he cannot make a grievance of it. The Petitioner is therefore benefited by this error committed by the lower Courts and he cannot make a grievance of it. Doubtless, if Section 273-A in terms had applied only to buts, then the order directing the Petitioner to demolish the structure might become invalid and the question of contravention of the order would not have arisen. But once it is clear that Section 273-A applies to all classes of buildings, 'whether they are huts or not, and it is further established that the disputed structure is a building, the Petitioner is liable for contravention of the order u/s 273-A and the benefit that was given to him by the lower Courts in thinking that the structure was a hut at the time of imposing the sentence, does not affect, the legality either of the conviction or of the sentence. 12. Section 385-A further says, "For each day during which the offence is proved to have continued after the first day, a daily fine may be imposed." The "first day" referred to here is the "first day" on which there was contravention of the order of the Executive Officer u/s 273-A requiring the Petitioner to demolish the building. Both the lower Courts therefore thought that it would be legal to sentence the Petitioner to a daily fine from 23-2-54 till the structure is actually removed. No evidence was however adduced before the lower Court to show that the structure existed on the date of the prosecution. It is now well settled that the imposition of a daily fine In anticipation of an offence being committed is illegal. I may refer to Harendra Nath Mukerji v. Chairman Birtlagar Municipality 1 C.L.J. 51, Ram Krishna Biswas 21. M. Nath Mozumdar ILR 27 Cal. 566 and Pancham Sao 21. The King Emperor 6 P.L.T. 204. Such imposition of daily fine amounts to adjudication in respect of an offence which was not proved to have been committed on the date on which the order was passed. It would be imposition of a sentence in anticipation of commission of an offence in future, which is clearly not authorised by law. The King Emperor 6 P.L.T. 204. Such imposition of daily fine amounts to adjudication in respect of an offence which was not proved to have been committed on the date on which the order was passed. It would be imposition of a sentence in anticipation of commission of an offence in future, which is clearly not authorised by law. Special emphasis may be laid on the words "during which the offence is proved to have continued" occurring in the last portion of Section 385-A. It is therefore the duty of the prosecution to prove beyond reasonable doubt that the offence of omission to demolish the building continued after the date of the first contravention, that is, after 23-2-54. There is practically no evidence on the point. P. Ws. 1 and 2 have not stated that they went to the spot on any subsequent occasion and saw the structure still standing there. 13. Mr. A. Das also invited my attention to some decisions where it was held that for the imposition of such a daily fine there ought to be a separate trial after conviction in the first trial. Thus, In re Limbaji Tulsiram and Ors. ILR 22 Bom where there was a contravention of Section 471 of the City of Bombay Municipal Act, it was held that for the imposition of a daily fine there ought to be a separate prosecution in which a charge must be laid for a specific contravention for a specific number of days. Again in Emperor 21. Wazir Ahmad ILR 24 All. 309, Emperor p. Kashmiri Lal ILR 43 All. 644 and Nanak Prasad v. Rai Bareli Municipality AIR 1943 SC 292, a similar view was held and it was observed that a second trial should be held to prove that the offender had persisted in the offence. Doubtless, those cases are distinguishable from the present case, because in all of them the penal section stated that the daily fine may e imposed "for every day after the date of the first conviction during which the offender is proved to have persisted in the offence." The use of the word "conviction" made it absolutely clear that there must be first a conviction for the initial offence of the contravention of the order and then a separate trial in respect of the period during which the offender persisted in continuing the offence after his first conviction. In the Orissa Municipal Act, however, the penal section does not say hat the daily fine may be imposed only for he days during which the offender continues the commission of the offence after his conviction. It only says that a daily fine may be imposed if the offender is proved to have continued the contravention after the first day. Therefore, a separate trial may not always be necessary to justify the imposition of a daily fine u/s 385-A of the Orissa Municipal Act, provided in the formal charge or accusation u/s 242 Code of Criminal Procedure made against the accused it is made absolutely clear that he is being prosecuted (1) for contravention of the order of the Executive Officer u/s 273-A directing him to demolish the hut, and (2) for continuing in his refusal to demolish the hut for a specified period after the first day of contravention. Doubtless, that 'Period must necessarily end with the date on which the prosecution case is opened. Because, a person Cannot be sentenced for an offence which he may commit in future after the date on which the trial has commenced as it cannot be included in the charge or accusation. Hence there would have been no illegality if it bad been made clear in the accusation made against the Petitioner at the commencement of the trial that he is being prosecuted in respect of both the aforesaid offences and if the period for which the daily fine is intended to be imposed had also been specified in the accusation. Unfortunately this was not done, nor was any evidence led to show whether the structure existed on the date on which the prosecution commenced its case. Similarly during his examination u/s 342 Code of Criminal Procedure also, he was not specifically asked as to whether he continued to keep the structure till a specified date. Hence the sentence of daily fine imposed must be set aside. It will be open to the authorities concerned to start a fresh case against the Petitioner or continuing to keep the structure on the site in contravention of the order for its demolition after specifying the exact number of days during which such contravention continued. 14. I would therefore maintain the conviction of the Petitioner u/s 385-A of the Orissa Municipal act and the sentence of fine of Rs. 14. I would therefore maintain the conviction of the Petitioner u/s 385-A of the Orissa Municipal act and the sentence of fine of Rs. 50/- passed for that offence, in default of which he should undergo S.I. for two weeks. That portion of the order directing the imposition of a daily fine is set aside. Order modified.