JUDGMENT : R.K. Dash, J. - Town Surveyor of Berhampur Municipality being authorised by the Executive Officer filed complaint against the accused, respondent herein, alleging that the latter constructed a building in Gajapati Nagar in Ward No. 26 within Berhampur Municipality without obtaining permission as required under the Orissa Municipal Act (for short, 'Act'). He therefore prayed that the accused may be proceeded against for his having contravened the provisions of Section 264 and accordingly he be punished u/s 386-A of the Act. 2. When examined u/s 312, CrPC, accused admitting to have constructed building without approval of the Municipality, pleaded that in 1979 he applied to the Municipal authority for approval of his building plan and when approval was hot accorded, he constructed the building. 3. The complainant in order to substantiate the charge, examined two witnesses and the learned trial Court on an appraisal of the evidence acquited the accused mainly on the ground that the Town Surveyor was not duly delegated with power by the Executive Officer to launch prosecution. It is against this order of acquittal that the Executive Officer of Berhampur Municipality has come up to this Court by filing the present appeal. 4. Learned counsel appearing for the Municipality contended with vehemence that the findings of the trial Court are against the weight of evidence on record, inasmuch as Exts. 3 and 6 being the order of the competent authority authorising the Town Surveyor to file prosecution against the persons for unauthorised construction of houses u/s 347 of the Act and in view of the admission of the accused that he constructed house without approval of any plan, the only inescapable conclusion would have been that the accused was guilty of the offence with which he stood charged. Learned counsel for the accused, on the other hand, submitted that there having no delegation of power in favour of the Town Surveyor in accordance with the provisions of Section 99 of the Act, the case was not maintainable. He further urged that the case was barred by limitation inasmuch as it was not filed within the period prescribed u/s 347 of the Act. 5. For deciding the contentions raised by parties, at the out-set it would be apposite to refer to Section 99 which reads as under: "99(1). He further urged that the case was barred by limitation inasmuch as it was not filed within the period prescribed u/s 347 of the Act. 5. For deciding the contentions raised by parties, at the out-set it would be apposite to refer to Section 99 which reads as under: "99(1). The Executive Officer of municipality with the sanction of the Chairman may delegate by general or special order to a servant of the municipal council to exercise under his control any power conferred on or delegated to him under this Act. (2) An order by the Executive Officer under Sub-section (1) may specify any condition and impose any restriction in respect of the exercise of any power. (3) Any order passed by an officer or servant of the municipal council in exercise of power conferred on him under Sub-section (1) shall be liable to rescission or revision by the officer who conferred the power." A reading of the aforesaid provision reveals that the Executive Officer either by general or special order may delegate any of his powers conferred on or delegated to him, to any of the servants of a municipal council and white doing so, he may specify any condition or (sic) restriction for exercise of any such power. 6. Coming to the case on hand, prosecution brought in evidence Ext. 6, an attested copy of order regarding delegation of power by the Executive Officer in favour of the Town Surveyor authorising him to launch prosecution u/s 347 of the Act, and Ext. 6, a copy of the order of the Assistant Executive Officer directing the Town Surveyor to file prosecution. From Ext. 5 what transpires is that the Executive Officer delegated his power to the Town Surveyor with certain conditions and restrictions to initiate proceedings u/s 347 of the Act against those persons who unauthorisedly made any construction in violation of the provisions of the Act. The said delegation of power although is in terms of Section 99, but however, evidence is lacking as to whether the same was sanctioned by the Chairman as required under law. It is no doubt true that there finds mention in Ext. 5 that sanction was accorded by the District Magistrate while in charge of the Chairman, but it is difficult to accept it as valid and proper without there having any other corroborative evidence to support the same. It is no doubt true that there finds mention in Ext. 5 that sanction was accorded by the District Magistrate while in charge of the Chairman, but it is difficult to accept it as valid and proper without there having any other corroborative evidence to support the same. Delegation of power by the Executive Officer in accordance with requirement of Section 99 has to be proved like any other evidence. So order of the Chairman, if any, having not been brought on record it is difficult to hold that Ext. 5 is a valid order under which power to the Town Surveyor had been delegated to file complaint. Coming to Ext. 6, upon which the learned trial Court places such reliance, it appears that the Assistant Executive Officer confirmed certain provisional orders which he had passed earlier and then directed the Town Surveyor to file prosecution. From the aforesaid Ext. 6 it is not borne out as to whether the said order was passed concerning the accused or somebody else. So when power under Ext. 6 was delegated to the Town Surveyor with certain conditions inasmuch as he was authorised to file prosecution only with the written order of the Assistant Executive Officer or the Executive Officer and no acceptable evidence having been led that complaint against the accused was filed with any written order of any of those two officers, it cannot be said that the Town Surveyor was competent to file the complaint against the accused. 7. In addition to what has been stated above, there was also delay in making the complaint. In this context it is worthwhile to Section 347 of the Act which runs thus : "347. Save as otherwise expressly provided in this Act, no person shall be tried for any offence against the provisions of this Act, or of any rule, regulation or bye-laws made under it, unless a complaint is made by the police or the Executive Officer of a municipal council or by a person expressly authorised in this behalf by the municipal council or its Executive Officer within three months of the commission of the offence. But nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognisance of offences upon information received or upon their own knowledge or suspicion : Provided that failure to take out a licence or obtain permission under this Act shall, for the purposes of this section, be deemed a continuing offence until the expiration of the period, if any, for which the licence or permission in required, and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence." 8. The plea of the accused was that he got the plan of his building approved by the Town Planning Authority in. December, 1978 and then submitted to the Municipality and since then it is lying there awating approval. He waited for two years and then constructed his house (see Ext. 4). It is in the evidence of PW 1, Town Surveyor, that accused has already completed construction of his building. When being cross-examined, he denied having any knowledge when construction was completed. To the same effect is also the evidence of Amin of the Municipality, PW 2. It has been elicited during cross-examination that he had not visited D.I.C. Colony where the house in question is situate prior to 1984 and so he is not aware when the construction of the building was started and completed. That being the evidence of the prosecution and in view of the defence plea that accused constructed building two years after submission of the plan, that is, 1981, prosecution should have been launched within 12 months therefrom. Instead, the case was instituted against the accused in 1984, that is, after three years of commencement of the offence. Counsel for the Executive Officer would contend that the plea of limitation has been taken by the accused for the first time in this Court and therefore, the same should not be taken note of while deciding the legality of the impugned order of acquittal passed by the trial Court. I am not persuaded by such submission since filing of complaint within the prescribed period of limitation being question of law which goes to the root of the case can be agitated at any stage of the proceeding. 9. I am not persuaded by such submission since filing of complaint within the prescribed period of limitation being question of law which goes to the root of the case can be agitated at any stage of the proceeding. 9. In view of my discussions made above, l find no illegality in the impugned order of acquittal which warrants interference by this Court In the result, appeal fails and the same is dismissed. Final Result : Dismissed