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Dr. Brij Behari Lal Vs. Emperor Through Municipal Board - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1943All123
AppellantDr. Brij Behari Lal
RespondentEmperor Through Municipal Board
Excerpt:
- - a, which he failed to comply with. section 185 reads :whoever begins, continues or completes the erection or re-erection of, or any material alteration in, a building or part of a building or the construction or enlargement of a well without giving the notice required by section 178, or in contravention of the provisions of section 180, sub-section (5) or of an order of the board refusing sanction or any written directions made by the board under section 180 or any bye-law, shall be liable upon conviction to a fine which may extend to five hundred rupees. 7. section 186 provides :the board may at any time by written notice direct the owner or occupier of any land the erection, re-erection or alteration of a building or part of a building or the construction or enlargement of a well.....collister, j.1. this is a reference by the sessions judge of saharanpur, which arises out of the applicant's conviction under section 307, municipalities act (2 of 1916). the history of the events which led upto the applicant's prosecution under the aforesaid section makes sorry reading. the applicant is dr. brij behari lal and he owns a compound within the municipal limits of saharanpur. on 1st december 1930 he applied for permission to erect a building consisting of 48 apartments; and apparently he began to collect materials or do something of that kind, for we find that on 12th february of that year the executive officer submitted a report the substance of which was that the applicant should be informed that the matter was under consideration and that he should not start building until.....
Judgment:

Collister, J.

1. This is a reference by the Sessions Judge of Saharanpur, which arises out of the applicant's conviction under Section 307, Municipalities Act (2 of 1916). The history of the events which led upto the applicant's prosecution under the aforesaid section makes sorry reading. The applicant is Dr. Brij Behari Lal and he owns a compound within the municipal limits of Saharanpur. On 1st December 1930 he applied for permission to erect a building consisting of 48 apartments; and apparently he began to collect materials or do something of that kind, for we find that on 12th February of that year the executive officer submitted a report the substance of which was that the applicant should be informed that the matter was under consideration and that he should not start building until he obtained sanction; and it was further mentioned that upon a report by the sanitary inspector the applicant had been served with a notice under Section 186 of the Act. Three days later the applicant sent a reply in the following terms :

I have ordered the contractors to stop construction for a period of 15 days. If no sanction is forthcoming, after that time the work will be resumed.

2. On 18th February 1931 the applicant was again directed to stop construction until he obtained formal sanction; but on 24th March 1931 the executive officer issued an order to the effect that the latrine should be built according to the rules, but that in other respects sanction had been granted by the Chairman on condition that the applicant paid a penalty of Rs. 50 for starting to build without permission. This led to correspondence between the parties and on 23rd May 1932 the fine was reduced to Rs. 30 and this was paid on 4th July 1932. The order of sanction however was apparently not prepared and sent to the applicant until 19th July 1934: and we have no explanation of this remarkable delay. Thereafter the applicant proceeded with the construction of his building; but on 10th June 1935 the executive officer served a notice upon the applicant, in which it was said that the latter had built a temple and a circular platform without permission and contrary to the sanctioned plan, and the applicant was directed to demolish these constructions within a week on pain of being prosecuted under Section 307 of the Act. Prom this notice the applicant appealed to the municipal board under the provisions of Section 61, read with Schedule 2 of the Act; and on 24th August 1935 it was resolved at a meeting of the board that the Chairman--a gentleman named Mr. Khub Chand--should inspect and report. Mr. Khub Chand accordingly went and saw the temple and on 3rd November 1935 he made a report in the following terms:

I suspect that it was not built according to sanction. It is within the compound and meant only for the occupants of the houses therein. No member of the public goes there for worship. No infringement of the building bye-law has been committed as there does not exist any mosque all round within 200 yards of this temple; rather within a greater distance. In my opinion the temple may be retained and shown in the plan. As the construction has been made without permission, I impose a penalty of Rs. 50. Lay before the board.

3. On 20th November 1935, the matter was laid before the board, but as the elections were about to take place, it was adjourned and was referred to the new board. Accordingly on 25th February 1936 the matter came up for consideration before the new board, of which the Chairman was a gentleman named Mr. Fazlur Rahman; but it was again adjourned. It was taken up on 3rd March 1936 and on that date by a resolution of the board a committee was appointed to investigate and report about the matter. The convener of this committee, however, withdrew and the committee had to be re-constituted. The convener of the re-constituted committee was the Rev. S.N. Talibuddin and he made a local inspection and submitted a report, which bears no date. In this report he said:

Although it -- that is to say the temple -- does lie within less than 200 yards of a mosque, yet from all inquiries it appears that it is a private and domestic place of worship used by Dr. Brij Beharilal's family and friends. Hence bye-law No. 5 of the municipal board does not apply in this instance. Inasmuch as the plan of buildings heretofore submitted to the municipality does not include the temple, hence this ought to be interpreted as an erection without permission. In view of the above I recommend that a penalty be imposed on the gentleman concerned and the original plan be modified accordingly.

4. This report was laid before the committee on 2nd February 1938. Two of the members turned up and supported the recommendation of Rev. Section N. Talibuddin; but when the matter came before the board on 10th May 1938 a member named Sheikh Abdul Salam proposed that 'as the construction was carried out in bold defiance of the executive officer's notice dated 10th February 1931 and as the erection of the temple is against our bye-laws being within 200 yards of a recognised mosque, the board cannot allow it and that the file be submitted to the District Magistrate for information;' and this resolution was carried by a majority of 10 to 3. Thus the applicant's appeal was disallowed by the Board. I have not been able to ascertain what particular notice was issued on 10th February 1931; but nothing turns on this. Thereafter the applicant appealed to the District Magistrate under Section 818 of the Act, but his appeal was dismissed on the ground that he had never obtained any sanction to build this temple. On 26th June 1940 the Board preferred a complaint against the applicant under Section 307 of the Act for non-compliance with the notice of 10th June 1935; and on 22nd August 1940, the applicant was convicted and was sentenced to pay a fine of Rs. 50. It will be seen from a perusal of pages 7 and 8 of our paper-book that in his defence the applicant wanted to show that the temple was consecrated to the Almighty and that he had appointed trustees for its management and it was, therefore, not in his power to demolish the building, but that it was open to the Board to effect the demolition itself. The Court, however, refused to entertain these pleas. In his judgment the Magistrate says :

The accused has admitted having received the notice Ex. A, which he failed to comply with. He has given certain reasons for not complying with the notice and wanted to produce evidence in support of such reasons. The reasons given are unsatisfactory and irrelevant and consequently the evidence which he sought to produce in support of such reasons was considered irrelevant.

5. The applicant then went in revision to Sessions Judge, who formed the opinion that the conviction should be quashed. The learned Judge says :

In my opinion the pleas taken by the applicant were quite relevant and the order of the learned Magistrate disallowing defence evidence was not justified. I am also of the opinion that the conviction of the applicant cannot be maintained. It is an admitted fact that the building to be demolished is a temple and it had been consecrated before the notice dated 10th June 1935, on which the prosecution is founded, was given to the accused. The notice itself mentions the building as a temple. The temple is a trust property and the founder has no more control over it than an ordinary worshipper. He has no power to demolish it.

6. The reference came before Ganga Nath J. who in an order dated 8th January 1942, expressed the opinion that, owing to a conflict of judicial opinion in this Court as to the affect of Sections 318 and 321 of the Act, the matter should be referred to a Pull Bench; and ultimately it has been referred to this Bench of five Judges. The first plea taken on behalf of the applicant is that, even if everything else be assumed against him, Section 321 of the Act is inapplicable for the reason that Section 186 of the Act -- under which the notice of 10th June 1935 purports to have been issued -- is only concerned with offences which fall under Section 185, and that what the applicant did was not an offence under the last-named section. He says that he acted within the terms of the sanction. It seems to me that this plea rather begs the main question which falls for our consideration, namely, whether the validity of a notice under Section 186 can be challenged otherwise than by appeal to the District Magistrate, and it is somewhat difficult to see how it can be dissociated from that general question. However, I will deal with it on its special merits and as though it stood in vacuo, so to speak. Section 185 reads :

Whoever begins, continues or completes the erection or re-erection of, or any material alteration in, a building or part of a building or the construction or enlargement of a well without giving the notice required by Section 178, or in contravention of the provisions of Section 180, Sub-section (5) or of an order of the board refusing sanction or any written directions made by the board under Section 180 or any bye-law, shall be liable upon conviction to a fine which may extend to five hundred rupees.

7. Section 186 provides :

The board may at any time by written notice direct the owner or occupier of any land the erection, re-erection or alteration of a building or part of a building or the construction or enlargement of a well thereon in any case where the board considers that such erection, re-erection, alteration, construction or enlargement is an offence under Section 185 and may, in like manner, direct the alteration or demolition as it deems necessary of the building, part of a building, or the well, as the case may be.

8. What learned Counsel pleads is that the applicant obtained sanction to build a house -- or tenement building, as it may perhaps be more correctly styled -- and all that he did was to construct a temple in one of the apartments; and counsel says that the board is not concerned with structural alterations inside a room. In this connexion he refers us to Powell v. Municipal Board of Mussoorie (1900) 22 All. 123. In that case a lady obtained permission from the Municipal Board of Mussorrie to raise the roof of her kitchen. Her kitchen was part of a block containing servants' quarters and perhaps a store-room as well as the kitchen itself; and she proceeded not only to raise the roof, but also to convert the servants' quarters into bed rooms and bath rooms. She was convicted for violation of bye-law No. 19 made by the municipal board under Section 55 of Act 15 of 1883, which made it an offence to erect or alter any building or structure within municipal limits without the sanction of the board in writing or except under such conditions as the board may prescribe. A Bench of this Court held that there had been no breach of the bye law. At p. 42 the learned Judges say :

Whatever internal alterations were made, they do not in our opinion fall within the scope of municipal authority. No corporation can interfere with the uses of a room. We can all of us turn our dining room into an oratory or into a bath room without thereby committing any offences against any rules passed by the corporation within the limits of its powers.

9. From the applicant's sanctioned map in the case before us it will be seen that the building was to contain 48 apartments, each consisting of a room, a courtyard, a verandah and latrine. In his appellate judgment dated 23rd November 1938 the District Magistrate says :

I visited the locality this morning and inspected the temple. It is constructed in the shape of a temple and has a spire on top and a bell and apparatus for pujah and worship inside. In outward shape it is exactly the same as the ordinary Hindu temple.

10. We do not know with any certainty whether the applicant built a temple instead of an apartment or whether he afterwards converted an apartment into a temple; but this makes no difference. The fact remains that ultimately instead of an apartment there was a Hindu temple with a circular platform; and this is a very different matter from converting a room for one purpose to another, as in the case relied upon by learned Counsel for the applicant. It is, I think, obvious that the structural appearance of what was built by the applicant must differ essentially from what was contemplated in the plan. Whether the temple was an original construction or whether it be regarded as a 'material alteration' within the meaning of Section 185, there was clearly no sanction for it and the temple was built without the necessary notice under Section 178. The position is simply this : The applicant obtained sanction to build an apartment and he either built a temple instead of an apartment or else he afterwards converted the apartment into a temple. In either case, it cannot be said that what he has constructed is the thing for which he obtained sanction. This plea does not find place among the pleas which the applicant advanced in the proceedings under Section 307; but even assuming that it is a plea which he was competent to advance in that Court, I am of opinion that it is without force.

11. Before leaving this part of the case, I may mention that learned Counsel for the opposite party has cited a current bye-law passed under Section 298 List 1, A Building, (g) of the Act, according to which the plan must show the purpose for which it is intended to use the building; but he has not been able to satisfy me that any such bye-law existed at the material date or dates. The next contention on behalf of the applicant is that Section 321 did not bar him from pleading and establishing at his trial under Section 307 that the notice was invalid against him for the reasons which he alleged and wanted to establish. Section 318(1) provides :

Any person aggrieved by any order or direction made by a board under the powers conferred upon it by Sections 180 (1), 186, 205 (1), 208, 211, 222 (6), 241 (2), 245, 278, 285, or under a bye-law made under heading G of Section 298, may within thirty days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officer as the Local Government may appoint for the purpose of hearing such, appeals or any of them, or failing such appointment, to the District Magistrate :

Provided that if, in the latter case, the District Magistrate be himself a member of the Board, the appeal shall lie to the Commissioner.

12. Section 321 enacts :

(1) No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein.

(2) The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final :Provided that it shall be lawful for the appellate authority, upon application, and after giving notice to the other party, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.

13. It is a matter of admission that the Executive Officer had power to issue a notice under Section 180, that the notice issued on 10th June 1935 purported to be under that section and that an appeal lay under Section 61(1)(a) read with Schedule 2 to the Board. Section 60(1) (d) makes it clear that in any municipality in which there is an Executive Officer the power to issue notices under Section 186 is exercisable by such officer 'and not otherwise.' Thus, it is the Executive Officer alone who is empowered to issue notices under that section; the board has no such power in a municipality where there is an Executive Officer. Learned Counsel for the applicant argues that, although an appeal was in fact preferred to the District Magistrate from the appellate order of the board, it was incompetent; he says that where there is an Executive Officer, an appeal lies only to the board and the appeals contemplated by Section 318 are appeals from an original order or direction of the Board and therefore the bar of Section 321 has no application in such a case. This is a matter which I shall deal with at a later stage; for the present I propose to consider the various authorities which have been cited before us in respect to the proposition that Section 321 does not bar a person who is on his trial under Section 307 from impugning the validity of the notice which was served upon him.

14. Learned Counsel for the applicant has begun by referring us to certain decisions of this Court of the time when the previous Act (Act No. 1 of 1900) was in force. These are Bhairon Nath v. Municipal Board of Benares ('01) 1901 A.W.N. 56, Mahimaranjan Roy v. Municipal Board of Benares ('04) 1 A. L. J. 377, Alopi Din v. Municipal Board of Allahabad ('07) 4 A. L. J. 8, Ram Dayal v. Emperor ('11) 33 All. 147 : 8 I. C. 569 and Emperor v. Piare Lal ('14) 1 A.I.R. 1914 All. 41. The foregoing decisions do undoubtedly afford authority for the proposition that the validity of a notice issued under the provisions of Act 1 of 1900 was impeachable in a civil or criminal proceeding. Learned Counsel for the applicant pleads that the relevant sections of that Act do not materially differ from the corresponding sections of the Act now in force; but we find that there is a material difference between the language of Section 147 of that Act and the corresponding Section--Section 307 of the Act now current, as will appear at a later stage of this judgment. In the circumstances I do not consider it necessary to discuss the above-mentioned decision; it is enough to say that the applicant is entitled to draw from them such advantage as they afford to him as regards the view then taken by this Court under the provisions of Act 1 of 1900. I now turn to the decisions of this Court after the passing of Act 2 of 1916, some of which relate to criminal and others to civil proceedings; and I think it will be appropriate to deal with them chronologically. In Kashmiri Lal v. Emperor ('21) 8 A.I.R. 1921 All. 267, the committee of a notified area issued a notice under Section 267(b) to one Kashmiri Lal. The latter did not comply and was prosecuted under Section 307. Upon the pleas raised the Magistrate held that it was not for him to question the reasonableness of the notice and he convicted the accused. The District Magistrate took a different view and referred the matter to this Court; but the conviction was upheld by Walsh J. Dealing with Section 321, the learned Judge says at p. 544:

'Question' to my mind clearly means 'called in question as regards its reasonableness or practicability.' It cannot mean in the context in which it is used, 'challenging its legality.' The scheme of the Act is clear that, except as provided in the case of specified orders which may be appealed to the District Magistrate, no order or direction or requirement made by a municipality, or a committee of this kind, can be questioned on the merits, provided that it is a requirement or an order or a direction made within the powers conferred upon the authority, but its legality can undoubtedly be questioned in any Court in which penal proceedings are brought for breach of the order, if it can be shown that it is an order, requirement or direction which the Board could not make or, to use an expression familiar in judicial proceedings, an order made outside its jurisdiction.

15. It will be seen that the observation as regards the right to challenge the validity of a notice are obiter. The next case is Banarsi Das v. Municipal Board of Amroha : AIR1925All234 . There notice was issued under Section 211 to a man named Banarsi Das to remove a cornice. He refused to comply and instituted a suit against the board, which ultimately came in appeal before this Court. It was held by Mukerji J. that the projection was over a street and that the suit was, therefore, barred by Section 321 of the Act; but the learned Judge also considered what the position would have been if the cornice had not projected over a 'street' as contemplated by the Act. He says :

As an abstract question of law, therefore, I hold that the suit would be maintainable, provided the lane over which the projection hangs be not a street or public street within the meaning of Section 2, Municipalities Act.

16. In Jorhawan v. Municipal Board, Gorakhpur : AIR1926All18 , a board had refused under Section 180(1) to sanction the building of certain constructions, but conditionally allowed the building of a well. The individual concerned appealed to the District Magistrate under Section 318, but his appeal was dismissed. He then sued the board, and at p. 20 there is the following observation by Sulaiman J.:

It is obvious that the scheme of the Act is that even if the order passed by the Municipal Board is illegal, the only remedy of the person aggrieved is to move the appellate Court. If the appellate Court refers the matter to the High Court, it would abide by its decision, but if no such reference is made and an order is passed by the appellate Court, that order is final and cannot be questioned in any other manner or by any other authority. It seems to me that the order passed on appeal by the District Magistrate was, therefore, a final order which a civil Court has no jurisdiction now to question.

17. We now come to two decisions by Dalai J., which are relied upon by learned Counsel for the applicant. The first of these is Amin Ullah v. Emperor : AIR1928All95 . In that case the executive officer had issued a notice under Section 211 to a lessee to remove his stall from a plot of land adjoining a road; and the lessee was subsequently prosecuted under Section 307. It was held that, as the person concerned was the lessee of the municipality according to law and not a trespasser, the notice was illegal and that there could be no prosecution under Section 307 of the Act as a consequence of breach of that notice. The other decision of Dalai J., is Bhan Deb v. Emperor : AIR1928All696 . A certain person was convicted under Section 307 of the Act for making material alterations without the board's permission in his building, which was divided from a public road by a canal and a wall and there was nothing to show that the canal was vested in the Notified Area; and it was held by the learned Judge that the conviction was bad. In neither of the last mentioned two cases was there any discussion of Section 318 or Section 321 and no authorities are mentioned.

18. In Sheo Ram v. Sone Lal : AIR1929All912 , it was held by Sulaiman and Pullan JJ., in a civil appeal that the order or direction made under Section 318 is final and cannot be questioned by a civil Court in view of the express provisions of Section 321(1), Municipalities Act. We now come to the year 1932, when judicial opinion in this Court--with occasional exceptions and with modifications and reservations in certain judgments which are otherwise against the applicant--began to crystallise in favour of the proposition that the validity of a notice under Section 186 and cognate sections of the Act can only be questioned by an appeal to the District Magistrate. We first come to Har Prasad v. Emperor : AIR1932All673 . In that case a person was prosecuted under Section 307 of the Act for failure to comply with two notices issued by the board under Sections 196 and 211 directing him to remove a construction which was encroaching upon a public drain. The notices were served, but were not complied with. At the trial, the accused maintained that he had made no encroachment over the public drain and that the board, therefore, had no jurisdiction to issue the notices. It was held by King and Thorn JJ., that Section 318 gave to the accused a remedy by way of appeal to the District Magistrate to challenge the legality or validity of the notices under Sections 186 and 211 and as he failed to avail himself of that remedy, the criminal Court was precluded by Section 321 from questioning the legality or validity of the notices. At p. 580 King J., who delivered the judgment says:

The accused neglected to avail himself of the remedy prescribed by statute. It appears to us that, in these circumstances, the Magistrate was perfectly right in holding that under the provisions of Section 321 he was precluded from questioning the legality or validity of the notices.

19. Further on the learned Judge says :

Section 321 clearly shows that this is the only method by which the person served with a notice can challenge the validity of that notice and, if he fails to do so, no other authority such as a criminal Court can question the validity of the notice.

20. At p. 581 the learned Judge discusses the difference in language between Section 147 of Act 1 of 1900 and Section 307 of the Act now in force and he says:

It will be noticed that in the present Section 307 the word 'lawfully' has been omitted. There is nothing in the language of Section 307 which indicates that it is the duty of the Court to satisfy itself that the notice was 'lawfully' issued by the Municipal Board; probably this change of language was intentional in order that it should be consistent with the provisions of Section 321, which prohibits any authority, other than the appellate authority specified in Section 318, from questioning the validity of the notice.

21. The next case is a decision by Kendall J. in Cantonment Board, Agra v. Kashi Ram : AIR1933All486 and it is relied upon by the applicant. A man named Kashi Ram was directed to demolish a construction for the building of which he had in fact been accorded sanction. He did not comply with the notice and was prosecuted under Section 187 read with Section 268, Cantonments Act, but was acquitted. The Cantonment Board came in revision to this Court, but the application was dismissed. At p. 488 the learned Judge says:

I do not believe that it has ever been held or that it ever could be held that a person is bound to comply with any notice whatever, however illegal or peremptory, merely because it was issued to him by a Municipal Board or a cantonment authority, and that if he fails to comply with it, he renders himself liable to a fine under the Act.

22. We now come to a Full Bench decision of the Chief Court of Oudh reported in Emperor v. Mumtaz Husain ('35) 22 A.I.R. 1935 Oudh 337. In that case the board had issued a notice to respondent 1 under Section 186 of the Act. The respondent appealed to the District Magistrate, but his appeal was dismissed; and thereafter he was prosecuted under Section 307. At the trial he pleaded inter alia that the notice was unreasonable and illegal, and he was acquitted by the Court. The Government appealed against the acquittal and a Pull Bench was constituted to try the following question of law :

Whether a criminal Court can, in a prosecution under Section 307, Municipalities Act, for failure to obey a notice issued by a Municipal Board under Section 186, Municipalities Act, go into the question of the legality, validity and reasonableness of the notice?

23. It was held by two out of the three learned Judges that the criminal Court was not competent to consider the question of the legality, validity or reasonableness of the notice, but it was held that the matter could be taken into consideration for the purpose of passing sentence. The Judges who took this view were King C. J. and Srivastava J., Zia-ul-Hasan J. dissenting. At p. 338 there is the following observation by King J. :

It must be noted that it is for the board to decide whether the erection of the building is an offence under Section 185. The board may be right or wrong in its decision, but if it considers that the erection of the building amounts to an offence under Section 185, then it is competent to issue a notice under Section 186. In the present case, therefore, it appears to me that the board was clearly acting within the scope of its authority in issuing the notice because it clearly considered the erection of the building to be an offence under Section 185.

24. Further on the learned Judge says :

In other words the trying Magistrate was precluded by Section 321 from trying the question which had been finally decided by the District Magistrate under Section 318 and was bound to treat that decision as conclusive just as if the trial had been barred by the principle of res judicata.

25. On the next page he says :

I think there is an important difference between the language of Section 147, U.P. Municipalities Act, 1900, and the corresponding Section 307, Municipalities Act, 1916. Under the former Act Section 147 provided a penalty for disobedience of any lawful direction given by the Board or any notice lawfully issued by it. Section 307 of the Act of 1916 provides a penalty for failing to comply with a notice 'given under the provisions of this Act.' It has been contended that the law has not really been changed, because if a notice has been given under the provisions of the Act, it must have been 'lawfully' given. I am not prepared to accept this contention. The Legislature when enacting Section 307 of the Act of 1916 deliberately omitted the words 'lawful' and 'lawfully' which were contained in the corresponding section of the previous Act. It must be presumed that this deliberate omission was intended to effect some change of meaning, and it would be most astonishing if it were held that the omission of such important words left the meaning of the section unchanged. I think it is possible for the Board to give a notice under Section 186 legally or illegally.

26. On page 340 however the learned Judge makes an exception and expresses the opinion that it is open to the Magistrate trying the case under Section 307 to find

that the notice was void ab initio, a mere nullity which is devoid of any legal consequences, and therefore that it is not a notice which has been given under Section 186 and therefore failure to comply with it does not constitute an offence under Section 307.

27. By way of illustration the learned Judge cites the case where a notice may be issued by an official not empowered to do so on behalf of the board or where the notice may have been issued in respect to a building which is outside municipal limits, and he observes :

So if it is pleaded that the notice is a nullity, or that it is not a notice which has been given by the Board under Section 186, then I think that the trying Magistrate can try and decide that question, if it has not already been decided by the District Magistrate under Section 318. If the trying Magistrate finds that the notice is not a nullity, then he is precluded by Section 321 from trying its legality, validity or reasonableness.

28. At page 343 this learned Judge gave the following answer to the reference :

In my opinion the answer to the question formulated for our decision depends on whether the District Magistrate has or has not made an appellate order under Section 318. If he has, then the answer to the question is in the negative. If he has not, then the trying Magistrate may decide (if the question is raised) whether the notice is a notice which has been given by the Board under Section 186 or a nullity. If he finds that the notice was given by the Board under Section 186, then he is precluded from trying its legality, validity or reasonableness.

29. Srivastava J. agreed that the question should be answered as proposed by King C.J. At page 344 this learned Judge says :

Clause (2) of Section 321 provides that the order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final. There would be no finality in the order if it could be questioned either in the civil Court or in the criminal Court. The provision is tantamount to this: that the District Magistrate as a Court of appeal is given exclusive jurisdiction to deal with the legality or propriety of orders of the Board in matters provided for in Section 318.

30. Further on he says :

The language of Section 321 appears to me to be so plain and unambiguous that it can admit of but one meaning and except by straining it we cannot adopt a different construction.

31. Then again he says :

The words 'under the provisions of this Act' in this section (that is to say in Section 307) must be construed consistently with the provisions of Section 321. They should not be construed so as to nullify the provisions of the latter section and enable an accused to question the order otherwise than as provided under Section 318 or to affect the finality of the order of the appellate authority.

32. The learned Judge then however went on to express the opinion that if the accused were able to show that the notice given to him could not in the eye of law be regarded as a notice at all under the provisions of the Act, then Section 307 would have no application and there could be no conviction under that section. In Parshottam Kandu v. Emperor : AIR1935All986 , a man named Parshottam Kandu applied to the board under Section 178 of the Act for permission to make certain constructions, and a conditional sanction was accorded. The applicant made the constructions, but ignored the conditions which had been imposed. The board then served him with a notice under Section 186, but this notice was not complied with and there, after the applicant was prosecuted under Sections 185 and 307 and he was duly convicted. He had not availed himself of his right under Section 318 to appeal to the District Magistrate. A reference was made to this Court by the Sessions Judge and the case came before my brother Bajpai, who referred it to a Bench. In his referring order my brother Bajpai held that the conditions imposed upon the applicant were illegal and he said:

In the case of a prosecution under Section 307 once again it was the duty of the prosecution to prove that a notice, the violation of which gave rise to the prosecution, was under the provisions of this Act and if therefore the notice that was alleged to be given under Section 186 was not a valid notice given under the provisions of this Act inasmuch as the act of the citizen was not an offence under Section 185, the prosecution has failed to discharge its burden. The accused is only asking the prosecution to prove its case and is not questioning the order or direction referred to in Section 318.

33. At the end of his referring order the learned Judge specifically differed from the view expressed in Har Prasad v. Emperor : AIR1932All673 . The decision by the Bench--Sulaiman C. J. and Bennet J. -- is not important for the purposes of the ease with which we are dealing inasmuch as the question of law referred to them was left open; the case was decided with reference to its facts. Har Prasad v. Emperor : AIR1932All673 was, however, fully considered and followed by Sulaiman C. J. and Mulla J. in Baijnath Ram v. Emperor ('36) 23 A.I.R. 1936 All. At p. 1265 the learned Judges held that the accused person had committed no offence under Section 185 and that no notice asking him to stop further construction could validly be issued to him under Section 186; but they nevertheless held that the applicant was not entitled to question the validity of the notice in a prosecution under Section 307. At p. 1266 the learned Judges say :

The contention on behalf of the applicant is that this view does not take into account the full effect of the words 'under the provisions of the Act' at the very beginning of Section 307 which ought to be interpreted to mean that the notice in question should not merely profess to be under the Act, but should have been given in compliance with the provisions of the Act. We have no hesitation in holding that this interpretation is correct, but we find that it does not necessarily lead to the conclusion that the view taken by the learned Judges in 1932 A. L. J. 579 is open to any doubt. It must be noted that Section 307 embodies a general provision in respect of any notice given under the provisions of the Act or under a rule or bye-law to a person requiring him to execute a work in respect of any property, moveable or immovable, public or private, or to provide or do or refrain from doing anything within a prescribed time. As a rule, therefore, a criminal Court trying a charge under Section 307 would be entitled to satisfy itself that the notice in question has been given in compliance with the provisions of the Act or some rule or bye-law. Section 318, however, lays down a special provision in the case of certain notices specified therein and has the effect of withdrawing them from the ambit of Section 307. It provides certain exceptions to the general rule laid down in Section 307 and must consequently control that provisions of that section. It would follow, therefore, that where a notice which is the subject of the charge under Section 307 happens to fall within one of the exceptions provided in S.'318, the criminal Court is prevented from entering into the question of its legality by virtue of the special provisions of the latter section. Now Section 318 clearly provides that the legality of a notice falling within its purview can be challenged by way of an appeal to the District Magistrate or to some officer specially appointed by the Local Government for that purpose. The fact that the legality of a notice falling within the purview of Section 318 can be challenged in appeal is quite evident from Section 319. . .

34. At p. 1267 the learned Judges observe :

The only possible interpretation of this section is that the Legislature, having provided a complete remedy to the aggrieved person under Sections 318 and 319, deliberately ousted the jurisdiction of any other Court or tribunal. We may also note here that Section 321 gives a further chance to the aggrieved person to apply for a review of the order passed by the appellate authority if it happens to be adverse to him. Having regard to all these provisions, we have arrived at the same conclusion as the learned Judges who decided the case in Har Prasad v. Emperor : AIR1932All673 that the only method by which a person aggrieved by a notice falling within the purview of Section 318 can challenge the validity of that notice is by way of an appeal to the District Magistrate or other special officer, appointed by the Local Government, and if he fails to avail himself of that remedy, no other authority such as a criminal Court trying a case under Section 307 can question the validity of the notice.

35. This decision goes the whole way in favour of the proposition that the validity of a notice under Section 186 cannot be questioned in a criminal proceeding under Section 307 on any grounds whatsoever otherwise than by an appeal under Section 318 of the Act: there are modifications or reservations. A similar view was taken by Allsop J., in Ambica Prasad v. Emperor : AIR1936All693 ; but no authorities are discussed in the judgment. In Municipal Board, Moradabad v. Shiam Lal ('37) 24 A. I .R. 1937 All. 298, which was a second appeal in a civil suit; Sulaiman C. J. and Bennet J. followed the decisions in Har Prasad v. Emperor : AIR1932All673 and in Ambica Prasad v. Emperor : AIR1936All693 , the suit was for a perpetual injunction against the municipal board and this Court held that the suit was not maintainable. At page 182 the learned Judges say :

It is noteworthy that the section (meaning Section 186) is not confined to the case where an offence under 3. 185 has been actually committed in the opinion of any Court but merely refers to the case where the board 'considers' that such erection is an offence under Section 185. If the board is satisfied that there has been such a contravention and considers that an offence has been committed, it is empowered by the section to issue a written notice to the owner. It can hardly be contended that where the board is satisfied that there has been such a contravention and considers that the offence under Section 185 has been committed and therefore issues notice under the section, it is acting without any jurisdiction if later it turns out that the offence had not in fact been committed. The board has jurisdiction and power to issue notice where it considers that there has been such a contravention irrespective of the question whether the board's opinion is right or wrong.

36. In this same volume at p. 401 there is a decision, Municipal Board, Jhansi v. Bhajan : AIR1937All444 by Sulaiman C. J. and Bennet J. in another second appeal in which it was held that Section 321(1) of the Act, specifically bars the questioning of an order under Section 186 by any other authority than that provided in Section 318 and that this section prevents the civil Court from having any jurisdiction to interfere in the matter. At page 403 the learned Judges say :

It is to be noticed that Section 186 makes the board the authority who is to decide the matter as to whether there is or there is not an offence under Section 185. These decisions of the board no doubt are subject to the appeal provided in Section 318. But Section 321 (1) specifically bars the questioning of such orders by any other authority and this section is a section which prevents the civil Court having any jurisdiction to interfere in these matters.

37. In Municipal Board, Moradabad v. Hafiz Banne Section A. No. 314 of 1935 decided on 23rd December 1938 by Bennet J. and my brother Verma, a notice had been issued by the executive officer under Section 186 and other sections. It does not appear that there was any appeal to the board, but a few months later the board began to have the plaintiff's construction demolished with the assistance of the police. The plaintiff then sued the board for a perpetual injunction and his suit was decreed except in respect to a slight encroachment. It was held by this Court that since an appeal lay to the board under Section 61(1), no appeal lay under Section 318 and therefore Section 321 did not operate as a bar. Our attention has been drawn to an obiter dictum by Bennet J. upon a question which I shall have to consider later on. The learned Judge says :

For the appellant it is pointed out that, if the plaintiff had appealed to the board under Section 61 and the board had passed an order on the appeal, then an appeal would have lain under Section 318 against the appellate order of the board and the jurisdiction of the civil Court would have been barred under Section 321. This is correct.

38. My brother Verma was silent in respect to this matter, which was irrelevant in that particular case. Then we have a reported decision by these same two learned Judges in Municipal Board, Moradabad v. Habib Ullah : AIR1939All383 . In that case the board, acting under instructions from the Collector, issued a notice -- purporting to be under Sections 186 and 211 of the Act--for demolition of a building; and thereupon the plaintiff sued the board for a perpetual injunction. It was found that the plaintiff had not committed any offence under Section 185 of the Act and that the notice under Sections 186 and 211 being unauthorised and ultra vires, the plaintiff's suit was competent and was not barred by Section 321 of the Act inasmuch as the order or direction made by the board was not under the powers conferred upon it by Section 186 or Section 211 of the Act. The next is a criminal case decided by Mulla J., Moti Lal v. Emperor : AIR1939All701 , reported at p. 703 of the same volume. The learned Judge adhered to his previous view; but he held--and I mention this because the question will have to be considered at a later stage of this judgment -- that the order or direction referred to in Section 318 does not refer to an order passed by the board upon an appeal from a notice issued by the executive officer. We have also been referred to an un-reported decision by Allsop and Hamilton JJ. in Surjoo Bai v. Municipal Board, Jhansi : AIR1943All112 , dated 23rd October 1942, and our attention has been drawn to the following observation by Allsop J.:

I have no doubt that the civil Court can go into the question whether an order which purports to be under Section 186, Municipalities Act, is in fact an order under that section.

39. Learned Counsel for the applicant has also referred us to certain decisions of this and other Courts arising out of taxation matters; but, in such cases, different considerations may arise, though reference may, I think, be pertinently made to Municipal Committee, Montgomery v. Master Sant Singh ('40) 27 A. I. R. 1940 Lah. 377. From the authorities which I have cited, it will be seen that there is a conflict of judicial opinion--and, in some instances, a sharp conflict, especially between the later and the earlier decisions of this Court -- as to whether and to what extent and in what circumstances the validity or legality of a notice issued under Section 186 of the Act can be questioned in (a) a criminal prosecution under Section 307 and (b) a civil action; but, in recent years, the preponderance of authority appears to incline in favour of the proposition that the validity of such a notice cannot be questioned in a criminal Court otherwise than by appeal to the District Magistrate. No question of law has been referred to this Full Bench for decision; the case itself has been referred to us for our decision. I shall therefore endeavour to confine myself to a statement of the law as I see it with reference to a prosecution under Section 307 of the Act and particularly with reference to the facts of the case which is before us.

40. At the outset I may mention one point of difference between this case and the reported decisions; in none of the last-mentioned eases had there been an appeal from the order of the executive officer to the board--as here--before an appeal was preferred to the District Magistrate. Learned Counsel for the applicant contends that the appellate order of the board was not an 'order or direction made by the board under the powers conferred on it by Section 186' as contemplated in Section 318. This view was taken by Mulla J. in : AIR1939All701 but in the judgment of Bennet J. in Section A. No. 314 of 1935, decided on 23rd December 1938 and also apparently by Allsop J. in Emperor v. Mathura Prasad ('42) 29 A. I. R. 1942 All. 441 at p. 592 a contrary view was expressed.

41. Section 186 invests the board with the power to issue notices to stop the erection of buildings and to demolish buildings. Section 318 gives the right of appeal to the District Magistrate to a person aggrieved by an order or direction made by the board under the powers conferred upon it by various sections, including Section 186. Section 60 (d) read with Schedule 2 provides that, where there is an executive officer appointed under Section 57 or Section 65, the power to issue a notice under Section 186 is exercisable by such officer and not otherwise; and it is therefore argued that, where there is an executive officer, the power to issue notice under Section 186 is conferred exclusively on that officer and not on the board. Section 61(a) provides for an appeal to the board from an order of the executive officer and the Act does not expressly provide for a second appeal to the District Magistrate and therefore it is contended that an appellate order by the board confirming an order of the executive officer is not an order made under the powers conferred on the board and is therefore not appealable under the provisions of Section 318. The point is not without difficulty, but, I am inclined to hold that the plea is not well-founded. The power to issue notices is vested in the board under Section 186, but the exercise of that power is conferred on the executive officer where one exists. When an appeal is preferred against an order of the executive officer, the right to exercise the power reverts to the board and therefore I think that an appellate order by the board confirming an order of the executive officer must be regarded as an order made by the board under the powers conferred upon it by Section 186.

42. Having decided this point, I will now deal with the main question which falls for our consideration, namely whether a person who has been prosecuted under Section 307 of the Act is or is not entitled to challenge by way of defence the validity of the notice issued to him. tinder Section 186 for the violation whereof he has been put on his trial. I may say at the outset that at first I was strongly impressed by the reasoning of the learned Judges in Baijnath Ram v. Emperor ('36) 23 A.I.R. 1936 All.; and I still think that either we must go the whole way with those two learned Judges or else we must disagree with that view altogether and must hold that a plea of invalidity, based upon and referable to the terms of Section 186 is entertainable in a proceeding under Section 307. I have finally reached the conclusion that the latter view is correct. It is an elementary principle of law that a statutory body cannot exceed the jurisdiction which has been conferred by statute upon it. At the same time the language of Section 321 is clear and full effect must undoubtedly be given to whatever significance it may be found to have. It is also necessary to consider the language of Section 307(b) which provides :

If a notice has been given under the provisions of this Act or under a rule or bye-law to a person requiring him to execute a work in private, or to provide or do or refrain from doing anything within a time specified in the notice, and if such a person fails to comply with such a notice, then (b) the said person shall be liable, on conviction before a Magistrate, to a fine which may extend to five hundred rupees, and in ease of a continuing breach to a further fine which may extend to five rupees for every day after the date of the first conviction during which the offender is proved to have persisted in the offence.

43. The word 'lawfully' which appeared in Section 187 of Act 1 of 1900 is now omitted and it is contended on behalf of the opposite party that this was intentionally done with the object of precluding a person to whom notice has been issued from questioning its validity or legality in any manner whatsoever, except by appeal to the District Magistrate; and this is the view which was definitely taken by Sulaiman C. J. and Mulla J. in Baijnath Ram v. Emperor ('36) 23 A.I.R. 1936 All. For the applicant, however, it is contended that there is something abhorrent in a provision of law which precludes an accused person, who must be presumed innocent until proved guilty by the prosecution, from setting up whatever defence may otherwise be available to him. Against this, it may be said that the person concerned has a right of appeal to the District Magistrate, in whose Court he can raise every kind of plea; and, if any question of. law arises, it is open to the District Magistrate to make a reference to this Court under Section 319. It is also pointed out on behalf of the opposite party that the proviso to Section 307 gives a further right of review. It is urged on behalf of the applicant that it can never have been the intention of the Legislature to bind the conscience of the Magistrate trying a case under Section 307 by prohibiting him from hearing a plea as regards the validity of a notice or direction which has been served upon the accused; but against this it has been held that the conscience of the Court is bound as regards a plea relating to the reasonableness or propriety of the notice and therefore it can be pleaded that there is nothing very outrageous in the fact of its conscience being bound as regards the validity or legality of the notice. The criterion, as it seems to me, is whether the notice was or was not in conformity with the terms and requirements of Section 186. Section 321 provides :

(1) No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein. (2) The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final.

44. One of the orders or directions referred to in Section 318 is an order or direction made by the board under the powers conferred on it by Section 186. The power conferred on the board or on the executive officer, as the case may be, (vide the definition in Section 2), is to issue a notice in writing to the owner or occupier of land to stop an erection, etc., or to demolish a building in any case where the board considers that the person concerned has committed an offence under Section 185. Thus no power is conferred on a board to give a direction under Section 186 otherwise than in writing or to a person who is not the owner or occupier of the land in respect to which the notice is issued--and land means land within the municipal limits--or to issue a notice where it does not consider, that an offence has been committed under Section 185. Therefore, if a person is prosecuted under Section 307, it is I think, open to him to show that the notice was not a notice under the provisions of the Act within the meaning of Section 307 in the sense that it was not a notice issued under the powers conferred on the board under Section 186 within the meaning of Section 318; it is open to him to plead and establish that the notice was not in writing that the land is not within municipal limits, that he is not the owner or occupier within the meaning of the Act and that the person purporting to have signed the notice as chairman or executive officer was in fact not the chairman or executive officer, but an impersonator. I am also of opinion that he is at liberty to prove the existence of circumstances from which the only reasonable inference to be drawn is that the chairman or the executive officer cannot possibly have considered that an offence had been committed under Section 185. In the Pull Bench case of the Chief Court of Oudh, A.I.R. 1935 Oudh 337, already referred to, King J. at p. 341 says :

It will be observed that the learned Judge seems to hold that the board is required to consider 'in good faith' that the construction constituted an offence under Section 185. The statute itself, however, does not require the municipal board to consider 'in good faith.' Probably it was not contemplated that a municipal board would act otherwise than in good faith, but as the law stands the board is given complete discretion and if it acts in bad faith, its proceedings are not vitiated for that reason.

45. It seems to me that 'to consider' must mean 'to consider in good faith,' for I do not see how a board can consider a fact to exist if it either knows that it does not exist or has reason to doubt its existence. For instance a person may have had a house for 50 years within the municipal limits and may suddenly be served with a notice to demolish it; and in such circumstances it would be for the board to show that it really 'considered' that an offence had been committed under Section 185. Other instances can be given but it is unnecessary to do so. In many cases it may be difficult and perhaps impossible for the accused to prove circumstances from which the only reasonable inference to be drawn is that the board did not 'consider' that an offence had been committed under Section 185; but I am nevertheless of the opinion that the accused has the right to advance this plea of bad faith and to adduce evidence in order to substantiate it. A notice which is not in conformity with one or more of the requirements of Section 186 will not be a direction made under the powers conferred on the board under Section 186 as contemplated in Section 318. The Legislature does not confer upon the board a right to issue a notice or direction under Section 186 where the requirements of that section are not satisfied and, in my opinion, a direction issued under this section must be a direction in compliance with the terms and requirements of the section; a direction which merely purports to be under that section but does not satisfy its terms, is not a direction made by the board under the powers conferred on it by Section 186 and is not a notice 'given under the provisions of this Act' within the meaning of Section 307. In my opinion, therefore, a person who is being prosecuted under Section 307 is competent to challenge the validity of a notice or direction under Section 186 on the ground that it fails to satisfy one or more of the requirements of that section; in other words, he can challenge the validity of the direction upon any ground which is immediately referable to the terms of Section 186. But he cannot impeach the validity of the notice or direction on any other ground; e.g., on the ground of propriety or reasonableness or on any legal ground if any might arise, not directly referable to the terms of Section 186. In the case of orders or directions other than those mentioned in Section 318, the accused can plead at large; but when the order is contained in a notice under Section 186 the plea of invalidity must be directly referable to the terms and requirements of that section. Whatever the intention of the Legislature may have been in omitting the word 'lawfully' when Section 307 was enacted, I cannot accept that the power has been conferred upon a board to issue notices which, though they purport to be under Section 186, are in violation of its terms, e.g. a notice to a person who is not the owner or occupier, or a notice in respect to land which does not fall within municipal limits; and a direction contained in any such notice or any other direction which is not in conformity with the terms and requirements of Section 186 will not be a direction made by the board under the powers conferred upon it and will not be a notice 'under the provisions of this Act.'

46. The result of my findings on this part of the case is that it is open to a person who is being prosecuted under Section 307 of the Act to impeach the validity of a notice or direction under Section 186 upon any ground which may be strictly referable to the terms and requirements of Section 186, but not otherwise. The applicant pleads that, having divested himself of title in favour of the Almighty, he was no longer the owner of the temple and had no power to comply with the notice. In Ambica Prasad v. Emperor : AIR1936All693 the accused person had transferred a building by a deed of sale during the period when an appeal against the notice was pending before the board and therefore, when the appeal was decided against him, he was no longer in a position to comply with the order. In connexion with this matter Allsop J. says :

The learned Judge has said that nobody can be punished for not complying with an order if he is not in a position to comply with it. I think that the proper answer to the suggestion is that a person to whom a notice is issued, if he cannot comply with it, should appeal under the provisions o Section 318, Municipalities Act. If he does not appeal, then it is not open to him to question the validity of the order upon the ground that he was not the proper person to carry out the order of the board.

47. In : AIR1939All701 Mulla J. observes:

I am prepared to concede that the language of Section 307 necessarily implies that the person who Jails to comply and thus renders himself liable to the penalty provided by law must have the power to comply. It would obviously be highly unreasonable in my judgment to hold a person guilty of not complying with the notice when under the law he has not the power to do so.

48. The plea in respect to which this observation is made was founded on the allegation that by reason of an order of a civil Court the person concerned had been deprived of the capacity to comply with the notice. It may be accepted that the temple with which we are concerned is a consecrated building and probably the applicant had no power to carry oat the notice; and for the reasons which I have already given I am of opinion that he ought to have been allowed to establish that he was not the owner within the meaning of Section 186. Whether, after the temple had been consecrated to the Almighty, the applicant still remained the owner of the 'land' is a matter which might be arguable, but it cannot be investigated here. It is a matter of admission that he does not live on the premises and therefore he cannot be regarded as the occupier; and he was not allowed to show that he was not the owner. Moreover, it was no longer in his power to comply with the notice, which had become a brutum fulmen, so to speak. It is true that this was his' own doing, but having regard to the history of this case I should not be disposed to send it down for further inquiry as to his ownership of the site. I would accept the reference.

Bajpai J.

49. In this case the learned Sessions Judge of Saharanpur has sent the record to this Court with the recommendation that the conviction of Dr. Brij Behari Lal under Section 307, U. P. Municipalities Act, (Local Act 2 of 1916) be set aside. When the matter came before a Single Judge of this Court, he directed that 'the case be laid before the Hon'ble the Chief Justice for referring it to a larger Bench' and in due course the matter has come before a Bench of five Judges. (After stating the facts of the case his Lordship proceeded). The learned Magistrate in the course of his judgment observed as follows :

Dr. Brij Behari Lal has given certain reasons for not complying with the notice and wanted to produce evidence in support of such reasons. The reasons given are unsatisfactory and irrelevant, and consequently the evidence which he sought to produce in support of such reasons was considered irrelevant.

50. The learned Sessions Judge in his referring order observed as follows :

The trial was under summary procedure. When the accused was examined on 20th August 1940 his plea before the Magistrate was that he was not able to comply with the notice because : '(1) Being a Hindu he could not demolish the building in question which is a temple and had been consecrated and given as an offering to the Lord Lakchhmi Narain and Shiva, whom he worships as God Almighty : (2) In such cases the municipal law provides that municipality can itself demolish the building : and (3) He had gifted this building to Lakchhmi Narain and Siva and trustees had been appointed on his behalf and so he has no authority to demolish the building under the law.'

The applicant also stated that he could produce defence to substantiate his pleas. The learned Magistrate did not allow him to produce his defence. . .

In my opinion the pleas taken by the applicant were quite relevant and the order of the learned Magistrate disallowing defence evidence was not justified. I am also of the opinion that the conviction of the applicant cannot be maintained. It is an admitted fact that the building to be demolished is a temple and it had been consecrated before the notice dated 10th June 1935 .... The temple is a trust property and the founder has no more control over it than an ordinary worshipper. He has no power to demolish it.

51. With these observations the learned Sessions Judge recommended that the conviction should be set aside. The learned Magistrate in his explanation which was called for by the learned Sessions Judge observed that there was abundant authority in support of the contention that the question about the validity of a notice issued under the Municipal Act from which an appeal lay under Section 318 'of the said Act could not be raised in any form before the criminal Court trying the case under Section 307 of the Act. And the learned single Judge of this Court, when he directed that the matter be laid before a larger Bench, said that the applicant had raised a plea before the trial Court as regards the invalidity of the notice issued to him and trial Court did not enter into this question because of certain authorities, but the matter was one of general importance and merited consideration before a larger Bench.

52. I propose to consider the question in the first instance, without reference to any authority because, as a member of this Bench, I am not bound by any previous decision of this Court as none of them are by a Bench larger than that of two Judges. Under Section 178 of the Act a person has, before erecting a new building within a municipality to give notice of his intention to the board, and under Section 179 it is laid down that where a bye-law has been made prescribing and requiring any information and plans in addition to a notice, no notice under Section 178 shall be considered to be valid until the information, if any, required by such bye-law has been furnished to the satisfaction of the board. The board then under Section 180 may either refuse to sanction any work of which notice has been given or may sanction it absolutely or subject to certain written directions, and under Sub-section (5) no person shall commence any work of which notice has been given under Section 178 until sanction has been given or deemed to have been given. Under Section 185 it is said that whoever begins the erection of a building or part of a building without giving the notice required by Section 178, or in contravention of the provisions of Section 180, Sub-section (5) shall be liable upon conviction to a fine which may extend to Rs. 500. Under Section 186 it is provided that the board may at any time by written notice direct the owner or occupier of any land to stop the erection of a building in any ease where the board considers that such erection is an offence under Section 185 and may in like manner direct the demolition as it deems necessary of the building, part of a building etc.

53. It was under Section 186 of the Act that the notice was issued by the executive officer, By Section 60 it is provided that in any municipality where there is an executive officer certain powers of the board shall be exercised by such officer and not otherwise, and amongst those powers is a power to issue notice under Section 186, if we look at Schedule 2. The notice issued by the executive officer was, therefore, within his powers. As I said before, there was an appeal to the board, and I am of the opinion that the appeal was under Section 61 of the Act which speaks of right of appeal from orders of executive officer. The appeal was rejected, and, in my view, the appeal was rejected not under the provisions of Section 318 of the Act but under the provisions of Section 61 of the Act. That being so, the order of the board cannot be said to be under an order or direction made by the board under the powers conferred upon it by Section 186 within the meaning of Section 818 of the Act, and an appeal did not lie to the District Magistrate although, as a matter of fact such an appeal was preferred by Dr. Brij Behari Lal. If I am right in this view, the two bars laid down in Section 321 of the Act do not come into play. There was in this case no order or direction by the board referred to in Section 318 which 'shall not he questioned in any other manner or by any other authority than is provided therein,' nor there is any valid order of an appellate authority confirming such an order which might be said to be final. The notice issued by the executive officer cannot be said to be a notice issued by the board. It is true that in Section 2, Sub-section (1) :

'Board', unless there is something repugnant in the subject or context, means a municipal board and shall include, in any case where a power is expressed as being conferred or a duty as being imposed on a board, a committee appointed by a board and any member, officer or servant of a board authorized or required by or under this Act to exercise the power or perform the duty.

54. If the notice of the executive officer can be interpreted as a notice by the board under Section 318 when the board has rejected the appeal against the order of the executive officer there would, to my mind, be a clear repugnancy, and we must take it, on the facts of the present case, that the notice was issued by the executive officer under Section 60 that the appeal was heard by the entire board under Section 61 and the bar laid down by Section 321 did not apply and the learned Magistrate was in error in shutting out evidence that was sought to be tendered by the applicant. In this view of the matter I am of the opinion that the applicant has been seriously prejudiced inasmuch as his evidence has been shut out and he would be entitled to a retrial which under the circumstances of the present case would not be desirable by reason of the great lapse of time, and I would direct that the conviction be set aside.

55. The matter has been agitated before us from other standpoints as well, and I propose to consider them briefly. It is conceded that the applicant gave a notice under Section 178 for the construction of forty eight rooms, and although he may have been guilty in the initial stages inasmuch as he started constructions before obtaining the necessary permission yet that offence was condoned by the imposition and the payment of a penalty, and his present offence seems to be that he constructed one room out of the forty eight in the form of a temple. What this exactly means is not quite clear because all that we have is an observation in the order of the District Magistrate to the effect that the construction is in the shape of a temple and has a spire on top and a bell and apparatus for pujah and worship inside. With the rituals, the bells and the apparatus inside we are not concerned, and the only question is whether the spire at the top is in contravention of the building application or the sanction. The building application or the sanction does not in any way show the structure at the top, and no objection was ever taken by the municipal board that the map or the plan submitted by Dr. Brij Behari Lal did not show the form of the roof of any room, and I have grave doubts whether the construction of the spire can be said] to be in contravention of the sanction.

56. The question then arises whether there is any bye-law which prohibits the construction of a spire or even the building of a temple. No relevant bye-law--by this I mean the bye-laws of the Saharanpur Municipality of the year 1930 or 1931--has been placed before us by learned Counsel for the Crown, and, in a criminal prosecution, I am not prepared to look at the bye-laws of subsequent years and to assume that there were such bye-laws in the former years. Even assuming that the bye-laws required a mention by the applicant in his application of the use to which the building was to be put and a mention that there was no mosque within a distance of 200 yards, I am of the opinion that the duty of making a mention of the use would have lain on the applicant if the building was predominantly a temple and not if the entire building was predominantly meant for residential purposes and one of the rooms was set apart by the applicant for private worship.

57. The question whether the so-called, temple was within a distance of 200 yards from a mosque is also not quite clear. We have the report of Mr. Khub Chand, Chairman in 1935 that it is beyond a distance of 200 yards from any mosque and we have the later report of Rev. Section N. Talib Uddin in 1938 that it is within a distance of 200 yards, from a mosque. The contention of the applicant is that when this room was constructed there was no mosque within 200 yards and the mosque referred to by Mr. Talib Uddin came into existence afterwards. This matter was also not investigated and was not permitted to be investigated because of the alleged bar of Section 321 of the Act, but I have already held that the bar is not applicable inasmuch as the notice was not by the Board but by the Executive Officer and the bar is applicable only when the notice is by the Board. Here again, the doctor can legitimately say that he was prejudiced by the shutting out of evidence.

58. It was also contended that the temple was consecrated before the notice dated 10th June 1935, and the learned Sessions Judge seems to hold the view that it was an admitted fact that the temple was so consecrated and therefore it was not possible for Dr. Brij Behari Lal to have complied with the notice and that a person cannot be held guilty of not complying with a notice when he has no power to do so. There is some authority of this Court for this proposition, but, as I said before, I am considering the case not with reference to any authority but on a plain reading of the statute. Apart from this, after consecration, Dr. Brij Behari Lal cannot be said to be the owner or occupier of the temple and Section 186 of the Act, contemplates that the notice should be issued to the owner or occupier. The real question in connexion with Section 307 of the Act is that a person can be convicted only for failure to comply with a notice given under the provisions of this Act and, to my mind, it is necessary for the prosecution to establish when the accused pleads not guilty, that the notice was under the provisions of the Act in this connexion, I can do no better than quote my own observations in Parshottam Kandu v. Emperor : AIR1935All986 when I referred the case to a larger Bench. I said :

Irrespective of the case law it seems to me that the contention of the Municipal Board is difficult to accept. A man is being prosecuted in a criminal Court and he is able to satisfy the Court that the condition precedent on which the prosecution is based has not been satisfied and yet the criminal Courts have no option but to convict the accused by reason of a certain legislation. It is not necessary for the accused to plead anything except that he is not utility and the burden is upon the prosecution to satisfy the criminal Courts that the accused has committed an offence. In order to obtain a conviction it is the obvious duty of the prosecution in a case like this to establish that the accused has begun, continued or completed the erection or re-erection of or any material alteration in a building or part of a building, etc., etc., in contravention of the written directions made by the Board under Section 180 or any bye-law, and this obviously implies that the directions must be such as could be given under Section 180, and it was conceded in the present case by the Chairman of the Board in the Court below that the directions were such as the Municipal Board was not competent to impose. In the case of a prosecution under S.307 once again it was the duty of the prosecution to prove that a notice, the violation of which gave rise to the prosecution, was under the provisions of this Act and if therefore the notice that was alleged to be given under Section 186 was not a valid notice given under the provisions of this Act, inasmuch as the act of the citizen was not an offence under Section 185, the prosecution has failed to discharge its burden. The accused is only asking the prosecution to prove its case and is not questioning the order or direction referred to in Section 318.

59. It is contended on behalf of the Crown that the Municipalities Act has provided a self-contained Code for the redress of wrongs and a citizen has to look to the Code alone for the redress of his wrongs. The submission is that he can go in the ultimate instance to the District Magistrate for the redress of his wrongs and if he cannot satisfy the District Magistrate there is an end of the controversy. The difficulty, however, is that the Act authorises the Municipal Board to launch a prosecution in the regular criminal Courts. If the contention of the Municipal Board is to be accepted, the conscience of the criminal Court has to be coerced and the criminal Court cannot go into the question of the validity of the notice although it is provided in Section 307, that the notice ought to be under the provisions of the Act. The Magistrate concerned, however, according to the Crown contention, has to assume that the notice was under the provisions of the Act and needs must shut out all evidence which an accused wishes to tender in order to satisfy the Court that the notice was invalid. This state of affairs to me appears to be shocking and anomalous. I have not thought fit to burden my judgment with the consideration of the various authorities that were cited before us at the bar because, as I said before, I am not bound by any one of them and because, I understand they are being noticed by my learned brethren. I would, therefore, accept the recommendation of the learned Sessions Judge and set aside the conviction of Brij Behari Lal for, as I stated earlier, this is not a fit case in which after this considerable delay there should be a retrial. I would further direct that the fine, if paid, be refunded.

Verma, J.

60. This is a report by the learned Sessions Judge of Saharanpur under Section 438, Criminal P. C, recommending that the conviction of one Dr. Brij Behari Lall by a Magistrate of the first class be set aside. Dr. Brij Behari Lal was prosecuted by the Municipal Board of Saharanpur under Section 307 (b), U. P. Municipalities Act (2 of 1916) on the allegation that he had failed to comply with a notice issued to him under Section 186 of the Act. He was convicted by the Magistrate and sentenced to pay a fine of Rs. 50, or to undergo simple imprisonment for one month if he failed to pay the fine. He filed an application for revision in the Court of the Sessions Judge. On examining the record of the proceeding, the learned Judge came to the conclusion that the conviction of the applicant could not be maintained and accordingly, made this report, containing the recommendation mentioned above, for the orders of this Court. The material facts, about which there is no controversy, are these. On 1st December 1930, Dr. Brij Behari Lal made an application to the Municipal Board of Saharanpur under Section 178, Municipalities Act, for permission to construct a building containing 48 quarters or apartments, each consisting of a room, a verandah, a courtyard and a latrine, upon land belonging to him. The requirements of Section 179 of the Act were also complied with by Brij Behari Lal. There was delay on the part of the Municipal Board in passing orders on the application and, on 11th February 1931, Brij Behari Lal addressed a communication to the Board which he probably intended to be one under Section 180(3) of the Act.

61. Thereafter a controversy ensued between Brij Behari Lal and the Board, the latter asserting that Brij Behari Lal had started the work of construction without waiting for the orders of the Board on his application. It is not necessary to go into the details of this controversy. It is sufficient to state that ultimately, on 24th March 1981, sanction to build was granted to Brij Behari Lal on condition that he paid the sum of Rs. 50 as penalty for having started the construction before sanction had been given. He was further directed to see to it that the latrines which he proposed to build were constructed in accordance with the views of the Health Officer and in accordance with the rules'. Brij Behari Lal objected to the penalty demanded and further correspondence took place. The Board ultimately agreed, on 23rd May 1932, to accept a sum of Rs. 30 as penalty. This sum of Rs. 30 was paid by Brij Behari Lal on 4th July 1932. On 10th June 1935, a notice purporting to be under Section 186 of the Act, was issued to Brij Behari Lal by the executive officer, this being a municipality in which there is an Executive Officer. The material portion of this notice is as follows :.you are hereby informed to carry out the directions given below within a week from the receipt of this notice, otherwise in case of default, after expiry of the above-mentioned period, a ease under Section 307, Act 2 of 1916, will be brought against you for disobeying the orders of the board. Detail of directions to be carried out regarding which this notice is given. Whereas you have, without obtaining permission, constructed a temple and a round platform contrary to the plan, you are hereby informed to demolish the platform and the temple within the period noted above from the date of receipt of this notice, otherwise, after expiry of the period, proceedings under Section 307, Act 2 of 1916, will be taken against you.

62. Brij Behari Lal preferred an appeal to the board against the order of the executive officer contained in this notice, such appeal being allowed by Section 61(1)(a), read with Schedule 2 of the Act. The appeal must have been filed within ten days of the service of the notice on Brij Behari Lal -- vide Sub-section (2) of Section 61. I do not consider it necessary to describe the vicissitudes through which this appeal had to pass before it was decided by the board. It is sufficient to state that it was not until 10th of May 1938 that a resolution was passed by the board the effect of which was that the appeal stood rejected. An appeal was taken by Brij Behari Lal against this appellate order of the board to the District Magistrate. That appeal was also dismissed on 23rd November 1938. Nineteen months later, on 26th June 1940, a complaint was filed on behalf of the municipal board in the Court of a Magistrate of the first class charging Brij Behari Lal with an offence under Section 307, Municipalities Act. Brij Behari Lal, when he appeared before the Magistrate on 20th August 1940, admitted that the notice of 10th June 1935 had been served on him on 21st June 1935 and that he had not complied with it. He pleaded that the temple in question had been consecrated and trustees had been, appointed and that consequently he was not in a position to comply with the notice by demolishing the temple. He also said that under the law the board could itself demolish it. He further stated that he would produce evidence to substantiate the facts stated by him. The learned Magistrate thereupon passed the following orders:

I consider the evidence which the accused intends to produce in defence irrelevant and consequently disallow such evidence.

63. On 22nd August 1940, the learned Magistrate pronounced his judgment holding that the guilt of the accused was established and convicting and sentencing him as already stated. The basis of the Magistrate's decision is contained in the following passage of his judgment:

The accused has admitted having received the notice Exhibit A which he failed to comply with. He has given certain reasons for not complying with the notice, and wanted to produce evidence in support of such reasons. The reasons given are unsatisfactory and irrelevant, and consequently the evidence which he sought to produce in support of such reasons was considered irrelevant. Since the accused has admitted failure to comply with the notice, and has given no satisfactory reason for non-compliance I must convict.

64. The learned Sessions Judge has expressed the opinion that the pleas taken by the accused were relevant and that the order of the learned Magistrate, disallowing defence evidence, was not justified. He has further made the following observations:

It is an admitted fact that the building to be demolished is a temple and it had been consecrated before the notice dated 10th June 1935, on which the prosecution is founded, was given to the accused. The notice itself mentions the building as a temple. The temple is trust property and the founder has no more control over it than an ordinary worshipper.

65. The matter came up for hearing in the usual course before a learned single Judge of this Court. Being of the opinion that a question of law of general importance, on which there were conflicting decisions, was involved in the case, he referred it to a larger Bench and, in the course of his referring order, made the following observations :

The applicant raised a plea before the trial Court as regards the invalidity of the notice issued to him. The trial Court did not enter into the question of the validity of the notice... The question is, what is the force of the notice given by the executive officer? It has been held in several cases that a notice issued by a municipal board against which an appeal lies to the District Magistrate under Section 318 is final and its validity cannot be questioned in any other way in any Court. There are some cases in which it has been held that a notice issued by an executive officer does not stand on the same footing as a notice issued by a board, because an appeal against a notice by an executive officer lies to the board while an appeal against a notice issued by a board lies to the District Magistrate and Section 321 relates to a case where the appeal lies to the District Magistrate.

66. The case was then laid before a Bench of three Judges who referred it to a Bench of five Judges with the following observations :

The question raised in this case is one of great general importance and it is bound to arise in numerous cases. The decisions of this Court on the question of Jaw involved are conflicting.

67. It will be noticed that this Bench has not been asked to decide any particular question or questions, but the whole case has been referred to it. Consequently, the arguments have ranged over a wide field and a variety of questions have been raised and debated, I propose however to confine myself only to two questions. The first question is the one which, in the opinion of the Single Judge as well as of the Bench of three Judges, was of such importance as to necessitate the reference of the case to this Bench. That question is this. Is a notice issued under Section 186, Municipalities Act, by the executive officer, by virtue of the authority vested in him -- and him alone--by Section 60(1)(d), such a notice as can be held to come within Section 318(1) and cannot therefore 'be questioned in any other manner or by any other authority than is provided therein' (Section 321)? The relevant portion of Section 318(1) is as follows :

Any person aggrieved by any order or direction made by a board under the powers conferred upon it by Sections... 186... may... appeal to such officer as the Local Government may appoint for the purpose of hearing such appeals or any of them, or failing such appointment, to the District Magistrate:

Provided that if, in the latter case, the District Magistrate be himself a member of the board, the appeal shall lie to the commissioner.

68. Those portions of Section 186 which are necessary for our present purpose may be quoted as follows :

The board may at any time by written notice direct the owner or occupier of any land to stop the erection, re-erection or alteration of a building or part of a building . . . thereon in any case where the board considers that such erection, re-erection, alteration ... is an offence under Section 185 and may, in like manner, direct the alteration or demolition as it deems necessary of the building, part of a building...

69. The combined effect of Section 60 (1) (d) and Schedule 2 is that, in a municipality where there is an executive officer appointed under the provisions of the Act, the board's power to issue a notice under Section 186 has to be exercised by the executive officer, and by the executive officer alone; in other words, in such a municipality the board has no power to issue a notice under Section 186. It rests entirely with the executive officer to issue or not to issue such a notice. If an executive officer chooses in any given case not to issue the notice, the board -- howsoever wrong in its opinion the executive officer may be in his decision not to issue the notice--can do nothing. If however the executive officer does issue a notice which contains an order directing the alteration or demolition of a building, or part of a building, an appeal against that order of the executive officer lies to the board under Section 61(1)(a), read with Schedule 2 of the Act.

70. There is no section in the Act which lays down in detail what the board has power to do when such an appeal is preferred to it; in other words, the Municipalities Act does not contain any section on the lines of Section 107, Civil P. C, or of Sections 423, 427 and 428, Criminal P. C. It is, however, clear in my opinion, that, where a statute permits an appeal from the order of one authority to another authority, it necessarily empowers the appellate authority at least to allow the appeal and so set aside the order of the lower authority or to dismiss the appeal and thus affirm the order appealed from. Thus, there can be no doubt that in a matter of the kind which we are considering the original order is passed by the executive officer and if an appeal is preferred to the board against that order, the board must be taken to have the power at least to allow the appeal and set aside the order of the executive officer or to dismiss the appeal and thus let his order stand. The reason why the Legislature did not consider it necessary to enact a section in the Municipalities Act defining the appellate powers of the board is not far to seek. The procedure of Courts of law is regulated by statute and the Courts are bound strictly to observe the provisions of the various statutes which deal with the procedure which has to be followed by them. Such is not the case with a municipal board. It can do any of the things mentioned in Section 107, Civil P. C., or in the sections of the Criminal Procedure Code mentioned above, according to the requirements of any given case. For example, it can, if it so chooses, remit a matter to the executive officer for further enquiry, or can call for a report on any point that it considers necessary, without any specific statutory provision in that behalf. In the ease of Courts of law, however, the jurisdiction to take the various steps which it may be necessary for an appellate tribunal to take had to be conferred by specific statutory provision. It appears to me, therefore, that the absence of a section or sections in the Municipalities Act laying down the appellate powers of the board is of no consequence and that the board, when hearing an appeal, has the power to take every such step as may be necessary for the satisfactory disposal of the appeal.

71. It has been argued by Mr. Ishaq Ahmad on behalf of the municipal board that a notice under Section 186 of the Act issued by an executive officer must be deemed to be a notice issued by the board, and therefore, to be within Sections 318 and 321. I do not find it possible to accept this contention. This very argument was put forward in Municipal Board, Moradabad v. Hafiz Banne Second Appeal No. 314 of 1935, decided by Bennet J., and myself on 23rd December 1938, and was not accepted. Bennet J. agreed with me in holding that where, in a municipality in which there is an executive officer, a notice under Section 186 is issued by the executive officer that notice cannot be considered to be a notice issued by the board so as to come within Sections 318 and 321. It was pointed out by Bennet J. in this judgment that, if the argument were accepted, it would lead to the conclusion that a person aggrieved by an order contained in a notice, issued by an executive officer under Section 186, directing alteration or demolition of a building or part of a building, can appeal to the District Magistrate. That, however, is an untenable position, for the Act specifically provides that an appeal against such an order of the executive officer would lie to the Board (Section 61), and it cannot be argued that the person aggrieved by such an order has the option of appealing either to the Board or to the District Magistrate. It was pointed out by me in my judgment in that case that the fact that an appeal against such an order of the executive officer was allowed to the Board showed that the order of the executive officer could not be the order of the Board, for otherwise, there would be the impossible position that the Board hears an appeal against its own order. Reliance has been placed by Mr. Ishaq Ahmad on the definition of 'Board' in Section 2 of the Act, as was done by the counsel for the Municipal Board of Moradabad in the case mentioned above. That argument was dealt with by Bennet J. in his judgment. It was also rejected. The definition relied upon is as follows :

In this Act, unless there is something repugnant in the subject or context, 'Board' means a municipal board and shall include in any case where a power is expressed as being conferred or a duty as being imposed on a board a committee appointed by a board and any member, officer or servant of a board authorised or required by or under this Act to exercise the power or perform the duty.

72. After quoting this definition, Bennet J., made the following observations in his judgment :

Now it is to be noticed that the definition refers only to where power is expressed or duty is imposed. A section providing for appeal does not come under either of those two heads and therefore this definition of 'Board' will not apply to Section 318 which does not deal with powers or duties but merely with a right of appeal. Clearly, the right of appeal is a matter repugnant to the definition in question and it is further repugnant in that there is already a provision in Section 61 for an appeal from an executive officer.

73. It may further be pointed out that the definition is subject to the important reservation that there is nothing repugnant in the subject or context and, if the argument of Mr. Ishaq Ahmad is accepted, a repugnancy would clearly arise, for, as pointed out above, it would have to be held that the Board, when hearing the appeal mentioned in Section 61(1)(a), hears an appeal against its own order. I am, therefore, clearly of the opinion that a notice under Section 186 issued by an executive officer is not a notice issued by the board and that consequently any order or direction contained in such a notice is not an 'order or direction made by a board under the powers conferred upon it by Section 186 ' That being so, such a notice does not, in my opinion, come within Sections 318 and 321. I do not, with great respect, agree with the rulings in which the contrary opinion has been expressed. It has then been argued by learned Counsel for the Municipal Board, that when a board dismisses an appeal preferred to it under Section 61 against an order or direction of an executive officer contained in a notice issued by him under Section 186, there comes into existence an order or direction made by the Board under the power conferred upon it by Section 186, as is required by Section 318. It is contended that the power to issue a notice under Section 186 is primarily conferred upon the Board and that Section 60 merely lays down that, where there is an executive officer, that power of the Board is to be exercised by the executive officer. It is suggested that the absence of a section in the Act, defining the appellate powers of a board, when it hears an appeal from an order of the executive officer contained in a notice issued by him under Section 186, leads to the conclusion that, when the Board upholds the order of the executive officer, it really exercises the power conferred upon a board, by Section 186.

74. Having carefully considered the arguments that have been advanced, I have come to the conclusion that this contention also cannot be accepted. I have already dealt with the question whether the absence of a section in the Act specifically defining the appellate powers of a board is of any consequence, and have held that it is not. It may be pointed out, at the risk of repetition, that whatever the Board does when it hears such an appeal is done by it only because an appeal to it is allowed by the statute; if no such appeal had been allowed, it would have had no jurisdiction to do anything in the matter. Thus, the power to pass any order upon such an appeal is derived from the section which permits an appeal and not from the section which confers the power to make the original order; in other words, the order in appeal is passed under the powers conferred upon the Board by Section 61 and is not made under the powers conferred upon it by Section 186. It may be-assumed, for the purposes of the point under consideration, that, generally speaking, all appellate authorities have the same powers as the authorities having original jurisdiction. They have these powers, however, only because an appeal is allowed to them, and only when an appeal is preferred to them. Whatever powers the appellate authorities enjoy must, therefore, in my opinion, be held to be conferred upon them by the section of the statute which permits an appeal and not by the section which deals with the making of the order or direction in original jurisdiction. The fact that the power of issuing a notice under Section 186 is primarily conferred upon the board is, in my opinion, of no consequence because, by reason of another section of the Act, namely, Section 60, where the board is one that has an executive officer, the board has no power to issue the notice. In other words, such a board has no power to make any order or direction conferred upon it by Section 186. My conclusion, therefore, is that an order passed by a board, upon an appeal preferred to it under Section 61 of the Act, cannot be an order under Section 186, and does not, consequently, come within Sections 318 and 321.

75. It follows from what I have said above that, in my opinion, Section 318 does not permit an appeal to the District Magistrate from the appellate order of a municipal board passed by it by virtue of the powers conferred upon it by Section 61. It is true that in Section A. No. 314 of 1935, mentioned above, Bennet J., in the course of his judgment, said that the argument of the counsel for the municipal board that an appeal lay to the District Magistrate from an appellate order of the board was correct. That however, was wholly obiter, for the point did not arise in that case at all. I refrained from, expressing any opinion on that point in my judgment in that case. I am satisfied that no such appeal lies. That being so, the appeal preferred by Brij Behari Lal to the District Magistrate against the appellate order of the board was an incompetent appeal. That, however, is of no consequence so far as the decision of the case before us is concerned. For the reasons given above, my conclusion is that the Magistrate was wrong in holding that Brij Behari Lal was debarred from questioning the validity of the notice issued to him. In view of all the circumstances, however, this is not a case which should be sent down for a fresh trial, and the only proper course, in my opinion, is to quash the proceedings.

76. The second question on which I propose to express an opinion is the one which forms the basis of the learned Sessions Judges recommendation. It appears to me that there is a finding of fact by the learned Sessions Judge that the building which Brij Behari Lal was asked to demolish had been consecrated before the notice of 10th June 1935 was issued and that it was not within the power of Brij Behari Lal to comply with the direction contained in that notice. I have no hesitation in agreeing with the view that if a notice under Section 186 is issued to a person who has no power to comply with it, he commits no offence by failing to comply with it. My conclusion, therefore, is that the re-commendation contained in the report of the learned Sessions Judge should be accepted.

Dar, J.

77. This is a reference under Section 438, Criminal P. C. (5 of 1898) by the Sessions Judge of Saharanpur, dated 8th August 1941, recommending that the conviction of Dr. Brij Behari Lal, a medical practitioner at Saharanpur, under Section 307, U. P. Municipalities Act (2 of 1916) may be set aside. (After stating the facts, his Lordship proceeded.) On account of certain conflict of authority which exists on the interpretation of Section 307, U. P. Municipalities Act, and of the right of the accused to challenge the legality of the notice at the trial this case has been referred to this Bench.

78. In the Courts below, the only defence of the accused was that he was not in a position to comply with the notice as he was not the owner or occupier of the property which was sought to be demolished. Before us, his counsel has raised a further contention that he was not bound to obey the notice as the temple was constructed with the permission of the Board and the Municipal Board had no power to order demolition of a building which had been erected with its sanction. Whether the temple building was erected with the sanction of the Board or without sanction is a pure question of fact which falls to be determined on the evidence in the case. In the Courts below, no challenge was made of the assertion by the Crown that the temple building had been erected without sanction of the Board and contrary to the plan submitted by the accused to the Board before the erection of the building on which sanction was granted. The case in the Courts below throughout proceeded on the assumption that the temple building had been erected without permission, and the only matter which was the subject of controversy in the Courts below was whether the accused not being in a position to comply with the notice did or did not commit an offence under Section 307 of the Act. I am clear in my mind that this new plea which the counsel for the accused wishes to raise in this reference is not open to him. But as some doubt was expressed in this matter by some of my brothers who are sitting with me in this Bench, I propose to examine this plea shortly on its merits.

79. On 1st December 1930, Dr. Brij Behari Lal made an application to the Municipal Board, Saharanpur, for permission to erect a building consisting of fifty residential quarters. On 9th January 1931, he submitted a plan showing the nature and situation of these quarters. The plan represents that each quarter would consist of a room with a verandah and a courtyard in front and a latrine at the end of the courtyard. The measurement and size of the room is not delineated in the plan, but one gets a fairly accurate idea of the kind of building which he wanted to erect and the dominant impression left on one's mind is that he wanted to erect self-contained residential quarters which might be let out on small rent to small and poor families in that locality. On 23rd March 1931, the proposed building was sanctioned by the Chairman of the Municipal Board on condition of payment of a penalty. This penalty was not paid till the year 1934 and the final sanction of the Board was made and issued to Dr. Brij Behari Lal on 19th July 1934 and the sanction was to construct rooms, verandah, latrine and staircase according to the plan submitted by him.

80. The Municipalities Act of 1916 provides that a new building abutting on or adjoining a public street cannot be erected without a notice to the Board. It further provides that the Municipal Board can frame bye-laws by which this notice may apply to all buildings wherever constructed irrespective of the condition of their abutting on or adjoining a public street, and it further provides that the Board by its bye-laws can insist on a plan of the building being submitted to the Board and can also insist on such other information as it may require before sanctioning the proposed building. The bye-laws of the Municipal Board of Saharanpur require a notice with regard to all buildings regardless of the fact whether they adjoin or abut on a public street. The bye-laws also require submission of a plan of the proposed building and the specification of 'the purpose for which it is intended to use the building': The bye-laws also require 'information' in case of a sacred or religious building, its relative position to any other sacred or religious building within 200 yards, and it forbids the erection of a new mosque, temple, church or other sacred or religious building/within a distance of 200 yards from any part of any other sacred or religious building of different denominations.' It is not disputed that the bye-laws relating to the necessity of notice with regard to all buildings irrespective of the question whether they abut on or adjoin a public street and the bye-laws requiring the submission of plan have been in force in this municipality at all material times. But the counsel for Dr. Brij Behari Lal has disputed before us that the present bye-laws relating to the erection of temple and to the specification of the purpose of the building were not in existence at the time when the building was erected in 1934 and 1935, and the Crown has not produced before us the relevant bye-laws and we cannot say whether those bye-laws were in force or not.

81. It is contended on behalf of the accused that it is open to the owner or occupier of a building or a house to make any use he likes of the building or house and he can, if he is so minded turn his house into a place of worship and if he does so it cannot be an offence against building regulations of the municipality. I agree. It is further contended on behalf of the accused that it is open to a person who has erected a house or residential building in accordance with the permission of the municipal board with the object of using it as a place of residence to change his mind and to use the erected building or house as a place of worship and if he does so the use of the building erected according to sanction may be an offence against some municipal bye-laws, but it is not an offence against the building regulations of the municipality. Here again, I agree. It is further contended on behalf of the accused that it is open to a person who has applied for permission to build residential quarters comprising of a room with a verandah and courtyard in front and a latrine attached to it and has obtained sanction for the same to vary the size and shape of his room and verandah because the municipal bye-laws do not insist upon the measurement and size of the rooms. This again may be assumed in his favour.

82. The counsel for the accused now contends that if in place of one of the quarters he had constructed a room with a spiral roof and with bells hanging from the roof and had placed idols inside the room and built a chabutra round the temple he had done nothing more than varied the shape and size of the room which he was entitled to do. With this I entirely disagree. The variation in form and shapes of the building may be permissible so long as the building retains its essential characteristics and is not taken away from one class and description of building and is placed in another class and description of building. But the variation in form and shape of the building cannot be permitted so as to convert one class of building into another class of building. Now, to my mind a residential quarter comprising of a room with a verandah and a courtyard in front and latrine attached to it is a class of building which is totally distinct from a temple with a spiral roof and a chabutra all round and a sanction applied for and obtained for a residential quarter in the circumstances mentioned above cannot cover the case of a temple building.

83. The executive officer who issued the notice, the municipal board who heard the appeal against notice and the District Magistrate who heard the appeal against the resolution of the board all have concurrently found that the temple building is radically different from the remaining buildings and has been erected without sanction and contrary to the plan. These findings are based on local inspection made by these authorities. In a case where the conflict is between one type and class of building and another type and class of building and controversy is whether variation in form and shape made in a building is of such a nature as to place one class of building into another class of building, the finding based upon local inspection of persons whose bona fide is not in question is almost conclusive. But, in this case, the evidence is all one way and there is nothing to displace these finding. I must, therefore, hold that the temple with the chabutra was erected without sanction by Dr. Brij Behari Lal and as such he committed an offence under Section 185, Municipalities Act.

84. But the charge against Dr. Brij Behari Lal is not that he has committed an offence under Section 185, Municipalities Act, but that he has committed an offence under Section 307 of the said Act. Section 307, Municipalities Act, makes the disobedience of a notice given under the provisions of the Municipalities Act an offence punishable with the same fine as an offence under Section 185 of the Act. But the essential elements which go to constitute the said two offences under the said two sections are radically different. In order to secure a conviction under Section 307, Municipalities Act, the Grown must establish that the notice which has been disobeyed was given under the provisions of the Act and if the notice does not comply with the provisions of the Act no prosecution and conviction can be founded upon its disobedience.

85. In this case before me, the notice to Dr. Brij Behari Lal was given under Section 186 of the Act and there are two vital conditions laid down in the statute subject to which notice can be issued under Section 186. One is that the notice must be addressed to the owner or occupier of the land on which the erected building which is sought to be demolished stands and the second is that the notice can only be issued after the board has 'considered' that the erection of the building which is sought to be demolished is an offence under Section 185 of the Act. It is, therefore, necessary that the person to whom notice is issued under Section 186 of the Act must be the owner or occupier of the land on which the erected building stands, and if at the moment when the notice is issued the person to whom it is issued is not the owner or occupier of the land on which the building which is sought to be demolished stands, then the notice to him cannot be issued under the provisions of Section 186 of the Act. It is also s necessary that before issuing notice the board should consider whether the erection of the building which is sought to be demolished is an offence under Section 185 of the Act and if the board does not consider this matter or does not duly and properly consider this matter as required by law, then it has no power to issue notice and such a notice does not comply with the provisions of Section 186 of the Act and cannot be said to have been given under the provisions of the Act. The Sessions Judge has found in substance that Dr. Brij Behari Lal at the time when the notice was issued to him was neither the owner nor occupier of the land on which the temple had been erected, and though the finding is not as satisfactory and as full as it might have been, some of my brothers who are sitting with me in this Bench consider it to be sufficient and I am not prepared in the circumstances of this case to take a different view.

86. In Ambica Prasad v. Emperor : AIR1936All693 notice was issued under Section 186 to the owner or occupier of the land, but he transferred his rights during the pendency of the appeal against the notice at a time when the notice was in suspension, and, on a question being raised about the legality of this notice, Allsop J. held that its legality could not be questioned. In : AIR1939All701 the person to whom notice was issued under Section 211, U. P. Municipalities Act, was dispossessed of the property by an order of the civil Court and on a contention being raised that he was not in a position to comply with the notice Mulla J. observed:

I am prepared to concede that the language of Section 307 necessarily implies that the person who fails to comply and thus renders himself liable to the penalty provided by the law must have the power to comply. It would obviously be highly unreasonable in my judgment to hold a person guilty of not complying with the notice when under the law he has not the power to do so.

87. In neither of these cases the question was considered and decided whether under Section 186, U. P. Municipalities Act, notice could be validly issued to a person who is neither the owner nor occupier of the land on which the erected building which is sought to be demolished stands. In the case decided by Mulla J. the notice was under Section 211 and not under Section 186 and, in the case decided by Allsop J., though the notice was under Section 186 the case against the accused was decided on the ground that he should have taken an appeal against the notice to the District Magistrate and the legality of the notice could not be questioned in a criminal Court, which ground requires a separate consideration and I shall presently consider it. The contention of the Crown is that by the Municipalities Act (2 of 1916) certain statutory powers have been granted to the municipal board and certain liabilities have been created and with regard to ten different kinds of powers granted to the board and liabilities thus created a right is given to the person aggrieved from the order of the board to take an appeal to the District Magistrate under Section 318 of the Act, and by Section 321 of the Act finality is given to the orders of the board when affirmed by the District Magistrate and. it is further provided that the said orders of the board in regard to those ten matters shall not be questioned by any other authority in any other manner and a notice issued by the board under Section 186 of the Act is one of those orders against which a right of appeal is given under Section 318 and finality is given under Section 321.

88. The Crown, therefore, contends that the true effect of Sections 318 and 321 of the Act is that a special and exclusive tribunal has been created by the statute for determination of the validity of the notice either in law or on facts and the only remedy which is open to a person who is aggrieved with an order of the board under Section 186 of the Act is to appeal to the District Magistrate and if such an appeal is not taken or is decided adversely to the person on whom the notice has been served, the criminal Court in a criminal trial relating to an offence of disobedience of notice must accept the notice as legally correct and as having been given under the provisions of the Act and the accused has no right to question the legality of the notice on any ground whatsoever including the want of jurisdiction. The contention of the defence is that the appeal which is given under Section 318 and the finality which is given under Section 321 applies to the orders of the board passed under the powers conferred under Section 186 and nine other sections of the Act. But an order passed by the municipal board in an appeal from a notice of the executive officer issued under Section 186 of the Act is not an order passed by the board with regard to the powers conferred on it under Section 186 of the Act and such appellate order of the board cannot be made the subject of an appeal to the District Magistrate and no, finality attaches to it under Section 321 of the Act.

89. By Section 186, U. P. Municipalities Act, the power of issuing notice of demolition is vested in the board and it is a power which is expressly conferred on the board by that section. By the definition clause Section 2(1) 'board' includes 'an officer of a board authorized or required by or under this Act to exercise the power or perform the duty.' By Section 60(1)(d) and Section 61 (a) read with Schedule 2 the power of issuing notice of demolition which is vested in the board under Section 186 is to be exercised by the executive officer of the board and not otherwise, and an appeal lies against the issue of notice to the board. The powers of the board as a tribunal hearing an appeal from the executive officer have not been specified in the statute but if a jurisdiction is conferred upon the board to hear an appeal, it is a legitimate argument that all powers necessary to give effect to that jurisdiction should be presumed. The contention of the defence is that when the board in hearing an appeal against a notice of demolition issued by the executive officer passes an order confirming or cancelling the notice the order of the board is under the implied powers of the board sitting as a Court of appeal and it is not an order passed by virtue of powers vested in the board under Section 186 of the Act, and because it is not an order passed by the board under the powers conferred by Section 186 of the Act no appeal lies to the District Magistrate under Section 318 of the Act, and if an appeal has been made and heard and decided by the District Magistrate it is without jurisdiction and it carries no legal effect and no finality can attach to an order of the District Magistrate, thus passed within the meaning of Section 321 of the Act.

90. The contention of the Crown is that, though powers under Section 186 are vested solely and exclusively in the board and though by Section 60(1) certain powers of the board which includes power of issuing notices in four matters specified in Section 318, Municipalities Act, and one of them is a notice of demolition under Section 186 are to be exercised by the executive officer of the board in those municipalities where an executive officer exists, the effect of Sections 60 and Section 61 read together is not to divest the board of its powers under Section 186 and to invest them in the executive officer but only to permit the exercise of those powers initially by the executive officer and in appeal by the board, and, therefore, when an order is passed by the board in appeal against a notice of the executive officer affirming the notice issued by the executive officer the order made by the board is under the powers conferred by Section 186 of the Act and as such is open to appeal under Section 318 of the Act to the District Magistrate and any order passed by the District Magistrate in appeal is given finality by Section 321 of the Act.

91. The controversy in the case is whether the order of the board passed in appeal against a notice issued by the executive officer in a matter relating to Section 186 of the Act should be referred to the powers of the board which are expressly conferred by Section 186 of the Act and which have never been taken away from the board though their exercise is given initially to the executive officer and in appeal to the board, or whether the order of the board should be referred to the implied powers which may be assumed in their favour as a Court of appeal. In my opinion the sounder rule of construction is that if an order can be referred to both express or implied powers then the order should be referred to the express powers and not to the implied powers and the order of the board in appeal must be taken to be an order made by the board under powers conferred upon it by Section 318 of the Act and as such it is appealable to the District Magistrate. It is not disputed that in all smaller municipalities where executive officers do not and cannot exist notices are and can only be issued by the board and appeal lies to the District Magistrate.

92. The policy behind Section 318 is that in certain matters relating to public health and sanitation--and building regulations are one of them--disputes arising between a citizen and the municipal board should be summarily and speedily decided by a special tribunal in the nature of arbitration and municipal funds should not be wasted in protracted civil litigation. If a special tribunal is prescribed for smaller municipalities there is no reason to think why a special tribunal would not be provided for larger municipalities where there would be many more building disputes than in smaller municipalities and it is difficult to conceive that the Legislature would not give a right of appeal and would not create special tribunal in larger municipalities. It will also be noticed that under Section 318 an appeal is given not against a notice of the board but against an order of the board and the word 'order,' in my opinion, is wide enough to include a case in which a notice was initially issued by the executive officer and was confirmed by the board in appeal by an order of confirmation.

93. In Municipal Board, Moradabad v. Hafiz Banne Second Appeal No. 314 of 1935 decided on 23rd December 1938 by Bennet and Verma JJ. it was held by Sir Edward Bennet that an appeal would lie under Section 318 from an appellate order of the board and the same view was taken by Allsop J. in Surjoo Bai v. Municipal Board, Jhansi : AIR1943All112 , decided by Allsop and Hamilton JJ., on 23rd October 1942; on the other hand, in : AIR1939All701 Mulla J. without discussing the matter has expressed the view that no appeal would lie. 'With this latter decision, with great respect, I cannot agree.

94. The argument of the counsel for the Crown that the legality of the notice issued by the board under Section 186 cannot be called in question in a criminal trial because the only remedy open to the person aggrieved was to make an appeal to the District Magistrate and if he has not made an appeal or if the appeal has been decided adversely to him the notice has become final proceeds upon a misapprehension. Dr. Brij Behari Lal has not raised an action in civil Court to test the legality of a notice issued by the board and the question does not arise whether by reason of the existence of a special tribunal and the exclusive remedy, the jurisdiction of civil Court is wholly or partially ousted. Dr. Brij Behari Lal is charged with a criminal offence under Section 307, Municipalities Act, and he has been tried for this offence in a Court of competent and exclusive jurisdiction and there is no question of ousting the jurisdiction of a criminal Court. Now the essence of the offence under Section 307 of the Act is disobedience of a notice issued by the board under the provisions of the Act and not the dis-obedience of a notice issued by the board, The notice in question was issued under Section 186 of the Act which provides inter alia that a notice can only be issued to owner or occupier of a land over which the building stands which is sought to be demolished and this notice can only be issued after the board has considered that the erection of the building sought to be demolished is an offence under Section 185. If the accused in answer to a charge under Section 307 read with Section 186 pleads that the notice was not issued under the provisions of the Act or pleads that he was not the owner or occupier of the land over which the building which is sought to be demolished stands, or if he pleads that the notice was issued by the board without considering whether an offence under S.185 had been committed, the prosecution will have to establish the existence of one or other of these conditions which is in dispute and the legality of the notice will have to be decided with reference to these matters upon the evidence in the case.

95. Sections 318 and 321, Municipalities Act, no doubt set up a special tribunal and give exclusive remedy and also give finality to the decision of the special tribunal and these sections may be sufficient to oust the jurisdiction of civil Court and to bar an enquiry into the legality of the notice in a civil Court, but they are not sufficient to bar an enquiry in a criminal trial whether an offence has been committed or not and if the legality of the notice is an ingredient of an offence these sections cannot bar an enquiry, into the legality of the notice. These sections do not lay down a rule of evidence to the effect that if a notice issued by the board is not challenged or if it is affirmed when challenged this shall be taken as a conclusive proof of the validity of the notice. Nor do these sections lay down a rule of res judicata to the effect that a finding by the special tribunal that an offence has been committed or that a valid notice had been issued will be binding in a criminal trial and the Magistrates and the criminal Courts will have to register conviction on the findings of special tribunal. Nor do these sections lay down a rule of procedure that if a person has not appealed against a notice of the board to the special tribunal, he would be barred from testing the legality of the notice in a charge of criminal offence. So long as the offence consists of disobedience of a notice issued under the provisions of the Act and so long as there is not an express rule in the 'statute providing that the notice issued by the board shall be taken to be notice issued under the provisions of the Act in certain circumstances--and those circumstances being specified in the statute --the criminal Courts whose duty it is before recording a conviction to satisfy themselves whether the offence has been committed or not cannot be divested of their jurisdiction to examine and determine whether the notice was issued under the provisions of the Act, and the fact that the accused did not appeal to the special tribunal or if he did and the special tribunal found that the notice was valid is to my mind wholly irrelevant in a criminal trial. If the notice was not issued under the provisions of the Act, then the act of tie board was without jurisdiction and no amount of consent or waiver by the accused in not making an appeal to the special tribunal and no amount of finding by the special tribunal can covert the act of the board which is without jurisdiction into an act within jurisdiction and the criminal Courts are not only entitled to but they should declare such an act as nullity and refuse to record a conviction on its basis.

96. It is further contended that under Section 186 the board is empowered to issue notice in any case where it considers that the erection of a building is an offence under Section 185 of the Act, and the power to issue notice is given when the board considers that an offence has been committed and not only when, in fact, an offence has been committed, and it is contended that the board has an absolute discretion to consider and decide whether an offence has or has not been committed. In my opinion, Section 186 of the Act is subject to certain limitations and one of them is that a notice can only be issued to the owner or occupier of the land over which the building stands which is sought to be demolished. The second is that it can only be issued in a case where the board considers that an offence has been committed under Section 185 and before the board can consider that an offence under Section 185 has been committed there must be a case to which Section 185 can apply and if the board in a case to which Section 185 cannot possibly apply by wrongly finding facts assumes jurisdiction and issues a notice such a notice is not within Section 186 of the Act. Take a simple case --suppose a person has not erected any building at all or the building has been in existence from long before the Act came into force and the board issues a notice for its demolition under Section 186 of the Act finding that the building had been newly erected or the person who had erected no building has erected it and on that finding assumes jurisdiction, that would be a case to which Section 185 has no application at all and the board cannot under Section 186 assume jurisdiction with regard to such a matter. In an often quoted passage the law on this subject was laid down so far back as the year 1853 in the Exchequer Chamber by Coleridge J. in Bunbury, Bart v. Fuller (1853) 9 Ex. 111 at p. 35 in these words :

Now, it is a general rule that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars making up together that subject-matter which, if true, is within its jurisdiction, and however necessary in many cases it may be for it to make a preliminary inquiry, whether some collateral matter be or be not within the limits, yet upon this preliminary question its decision must always be open to inquiry in the superior Court. Then, to take the simplest case--suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits. On its being presented, the Judge must not immediately forbear to proceed, but must inquire into that preliminary fact and for the time decide it, and either proceed or not with the principal subject-matter according as he finds on that point; but this decision must be open to question and if he has improperly either forborne or proceeded on the main matter in consequence of an error on this, the Court of Queen's Bench will issue its mandamus or prohibition to correct his mistake.

97. There is yet another limitation in Section 186 under which notices can be issued and that limitation is that the board should consider that an offence has been committed under Section 185. This 'consideration', in my opinion, means a judicial, fair and reasonable consideration of the matter in accordance with law and not an arbitrary, whimsical and unreasonable consideration in contravention of law or a consideration based on extraneous considerations which are foreign to the purpose for which the building regulations have been enacted in the Municipalities Act. If the board after the sanction had been given and the building had been erected, capriciously or unfairly issues a notice for demolition or if the board after, giving sanction and the erections of the building in furtherance of some claim with regard to the title of the property sought to be demolished issues a notice for demolition such a notice cannot be said to have been issued after a proper consideration by the board and the legality of such notice on the ground that the board has not properly considered the matter can-be called in question in criminal trial. It may be that the distinction between an erroneous consideration of a matter and failure to consider it according to law is some times very fine, but the cases on this subject show that distinction exists and this distinction has been explained by Wills J., in Reg v. Cotham (1808) 1 Q. B. 802 in a passage which was reproduced with approval by Vaughan Williams L. J., in Rex v. Woodhouse (1906) 2 K.B. 501 at p. 520 in the Court of appeal in these words :

As pointed out by Wills J. in (1898) 1 Q.B. 802, 'There is a distinction between an erroneous decision of justices and a failure to hear and determine. The line was often very thin, and cases near the line on each side may be found, but the leading principle is this that, if the justices have confined themselves to the sections and the points properly to be considered in relation thereto, it does not matter how erroneously they determined, for their decision in such a case cannot be reviewed by a mandamus, but certainly, when it appears by direct evidence that they have taken into consideration matters wholly outside what they should properly consider, the mandamus may go. In the ease I have referred to a mandamus was held to lie because they had taken into consideration matters foreign to the points properly left to them. Such a thing in the present case is not directly stated in the affidavits, but if the fact was demonstrated by what had taken place the result is the same. Here the justices have granted a licence to a person intending to keep an inn, but not one belonging to a person 'theretofore keeping' it. They must, therefore, have entered upon some extraneous considerations. The rule for a mandamus must be made absolute'.

98. In my opinion, the. Indian statute also requires a 'consideration' by the board and it will be a question of fact in each case whether the notice issued by the board under Section 186 is a result of erroneous consideration or of no consideration at all as known to law. On the interpretation of Sections 318 and 321, Municipalities Act, there is undoubtedly conflict of judicial authority and this conflict centres round the question whether by these sections the jurisdiction of civil Courts is excluded or of criminal Courts also and whether the ouster of jurisdiction is partial or absolute. It further centres round the question whether the finality to orders applies to all orders of the board under Section 318 irrespective of the fact whether they were made the subject of appeal or not, or it only applies to the orders which were the subject of appeal and affirmed in appeal. It further centres round the question whether this finality applies to the orders made by the board or also to the orders made by the executive officer irrespective of. the fact whether they were affirmed in appeal by the board or not. In Har Prasad v. Emperor : AIR1932All673 King and Thom JJ., and in Baijnath Ram v. Emperor ('36) 23 A.I.R. 1936 All. Sulaiman C.J., and Mulla J., hold that the legality of a notice, in the former case issued by the board and in the latter case issued by the executive officer and both of which were not made the subject of an appeal to the District Magistrate, could not be questioned in a criminal Court. In Emperor v. Mumtaz Husain ('35) 22 A.I.R. 1935 Oudh 337 King C. J. and Srivastava J., Ziaul Hasan J. dissenting, held that a notice by the board and affirmed in appeal by the District Magistrate could not be questioned, but at p. 132, King C.J. expressed the view that if the notice had not been taken in appeal to the District Magistrate, its legality at least to a limited extent could be questioned in the criminal Court. In : AIR1939All701 Mulla J., held that a notice issued by the executive officer even though not the subject of an appeal to the District Magistrate could not be questioned in criminal Court and in Emperor v. Mathura Prasad ('42) 29 A. I. R. 1942 All. 441 and in Second Appeal NO. 1145 of 1938 decided on 23rd October 1942 Allsop J. held that a notice issued by the executive officer whether appealed against or not was final and its legality could not be questioned either in criminal Court or in civil Court. In Municipal Board, Moradabad v. Habib Ullah : AIR1939All383 and in Municipal Board, Moradabad v. Hafiz Banne Second Appeal No. 314 of 1935 Bonnet and Verma JJ., held that the legality of a notice of an executive officer if not made the subject of an appeal to the board and to the District Magistrate could be questioned in a civil Court.

99. In Municipal Board, Moradabad v. Shiam Lal : AIR1937All298 and in Municipal Board, Jhansi v. Bhajan : AIR1937All444 Sulaiman C. J., and Bonnet J. held that the legality of the notice issued by the board could not be questioned in a civil Court, but in Surjoo Bai v. Municipal Board, Jhansi : AIR1943All112 decided on 23rd October 1942 Allsop J., expressed the view that the legality of the notice could be questioned in civil Court on the ground of want of jurisdiction. The earlier authority of this Court prior to the year 1932 favoured the view that ultra vires notices could be questioned both in civil Court and criminal Court: see Ram Partab v. Emperor ('20) 7 A. I. R. 1920 All. 103, Amin Ullah v. Emperor : AIR1928All95 and Bhan Deb v. Emperor : AIR1928All696 for criminal cases, and Banarsi Das v. Municipal Board of Amroha : AIR1925All234 and Ata Karim v. Municipal Board, Fatehpur : AIR1929All756 for civil cases. The authorities which hold that the legality of the notice issued by the board cannot be questioned in a criminal trial do not proceed upon any uniform principle. Sir Carleton Moss King with whom the current began in this Court in favour of exclusion of enquiry about the legality of notice in criminal Court in his last view, as expressed in Emperor v. Mumtaz Husain ('35) 22 A.I.R. 1935 Oudh 337 has put the exclusion upon the ground of some kind of res judicata and has not excluded enquiry in a case where the District Magistrate has not recorded a finding in appeal. Sir Shah Sulaiman and Mulla and Allsop JJ., have put it on the ground that a special remedy has been provided for the accused and if he does not avail or if he avails of it and the decision goes against him he is barred, but they have not stated on what ground he is barred, whether he is barred by reason of exclusive tribunal and exclusive remedy or he is barred by some rule of procedure or estoppel. With great respect I cannot follow any one of these decisions which bar an enquiry as to the legality of a notice which is the ingredient of an offence in a criminal Court, and for the reasons which I have given above.

100. It is not necessary for the purpose of this case to decide whether the legality of a notice issued by the board could or could not be questioned in a civil Court. Law is well settled that if a statutory authority is created, and it is armed with statutory powers and in the exercise of those powers any person receives an injury and the statute provides a special tribunal and an exclusive remedy for the redress of this wrong, then the person aggrieved must seek that remedy and no other and to that extent the jurisdiction of the civil Court to grant redress for wrongs committed against a person or his property is ousted. But it is also well settled that notwithstanding the exclusiveness of the special jurisdiction and special remedy and notwithstanding the finality to its orders given by the statute this finality only operates for acts of the statutory bodies within jurisdiction and acts without jurisdiction notwithstanding the finality and exclusive clauses can be challenged in civil Courts. In a well-known passage in Colonial Bank of Australasia v. Willan (1874) 1874 L. R. 5 P. C. 417 at page 442 Sir James Colvile in delivering the judgment of the Privy Council has stated the law on this subject as follows :

Their Lordships are, therefore, of opinion that winding-up orders must be taken to be within the scope of Section 244 of the Act, and that the power to remove the proceedings relating to them into the Supreme Court has been taken away by statute.

It is, however, scarcely necessary to observe that the effect of this is not absolutely to deprive the Supreme Court of its power to issue a writ of certiovari to bring up the proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen's Bench will grant a certiorari; but some of those authorities establish and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it..And as these two points, want of jurisdiction in the Judge, and fraud in the party procuring the order, are essentially distinct, it will be well to consider them separately.

In order to determine the first it is necessary to have a clear apprehension of what is meant by the term 'want of jurisdiction.' There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes. Objections founded on the personal in-competency of the judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously in most cases depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter, he properly entered upon the inquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the functions of a Court of appeal, and the power to re-try a question which the Judge was competent to decide.

101. And this statement of law by Sir James Colvile was again recently affirmed by Lord Thankerton in Secretary of State v. Mask & Co in delivering the judgment of the board in these words :

It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

102. The boundary line which divides the eases of absence of jurisdiction from eases of illegal exercise of jurisdiction is sometimes thin and it is a matter of considerable difficulty in some cases to say whether the ease falls on this side of the line or on that. But a distinction has been preserved for generations and it exists and the law is well settled that the finality given to the acts of bodies and tribunals in special jurisdiction only operates with regard to the acts within jurisdiction and the civil Court in the last resort remains the arbiter to decide whether the act of a body or a tribunal of special jurisdiction was within special jurisdiction or not in any case of dispute about the exercise of special jurisdiction. On the ground that the notice issued to Dr. Brij Behari Lal was issued to a person who was not the owner or occupier of the land over which the temple and chabutra had been erected which was sought to be demolished, I would hold that the notice was ultra vires and I would accept this reference and set aside the conviction and sentence of Dr. Brij Behari Lal for an offence under Section 307, U. P. Municipalities Act (2 of 1916), and would direct that fine of Rs. 50 if paid by him be refunded.

Mathur, J.

103. The present case has come 'before the Full Bench as a result of a reference made by the learned Sessions Judge of Saharanpur recommending that the conviction of Dr. Brij Behari Lal under Section 307, U.P. Municipalities Act (Act 2 of 1916) be set aside. The facts necessary to be known for the purposes of this case are that on 1st December 1930, Dr. Brij Behari Lal submitted an application to the Municipal Board of Saharanpur purporting to be under Section 178, U.P. Municipalities Act, for permission to construct a building consisting of 48 rooms according to a plan attached. The sanction was granted on 23rd March 1931 but it was not issued till the year 1934 as some dispute and correspondence wore going on between Dr. Brij Behari Lal and the municipal board. On 10th June 1935, a notice purporting to be under Section 186, Municipalities Act, was issued by the executive officer of the municipal board in the following words :

Whereas you have, without obtaining permission, constructed a temple and a round platform contrary to the plan you are hereby informed to demolish the platform and the temple within the period noted above from the date of receipt of this notice, otherwise after expiry of the period proceedings under Section 307, Act 2 of 1916, will be taken against you.

104. On the receipt of this notice, Dr. Brij Behari Lal filed an appeal under Section 61 read with Schedule 2 of the said Act. This petition of appeal is not dated and so it cannot be ascertained whether it was preferred within the period of ten days as provided in Section 61. The board, however, deputed the then chairman, Mr. Khub Chand for inspection of the locality and the latter reported that a private temple was constructed, primarily meant for the occupiers of the quarters, but a, as no mosque existed within a distance of 200 yards there was no infringement of any bye-law. He, however, suggested that as the construction has been made without permission a penalty of Rs. 50 should be imposed. When this report was placed before the board on 20th November 1935, it was resolved that as a new board was to come into existence very shortly the matter may be laid before that board. Subsequently when the matter came before the new board a committee was appointed consisting of five members to go into the matter. One of the members, Rev. Mr. S.N. Talib Uddin, again inspected the locality and he then found that the temple alleged to have been built by Dr. Brij Behari Lal lay within less than 200 yards of the mosque but he was also of opinion that it was a private and domestic place of worship and, therefore, bye-law No. 5 which laid down that no fresh place of worship be built within 200 yards of one already in existence and belonging to a different religion, did not apply. He, however, gave his opinion that as in the plan submitted by Dr. Brij Behari Lal there was no mention of a temple hence it should be interpreted that his action was without per mission. On 10th May 1938 the matter came up before the board for decision of the appeal preferred by Dr. Brij Behari Lal and the following resolution embodying the decision of the board was recorded :

Shah Abdul Salam seconded by Ch. Rashid Ahmad proposed that as the construction was carried out in bold defiance of executive officer's notice dated 10-2-1981 and as the erection of the temple is against our bye-laws, being within 200 yards of a recognised mosque, the board cannot allow it and that the file be submitted to District Magistrate for information.

105. It may be noted that this resolution was carried by a majority of votes. Dr. Brij Behari Lal then filed an appeal before the District Magistrate of Saharanpur. It was urged on behalf of Dr. Brij Behari Lal that what was considered to be a temple was not a temple at all but it was one of the 48 rooms for which he obtained permission and was used for prayer and meditation. It was further contended on his behalf that when he built the alleged temple there was no mosque in existence within 200 yards and the one that was in existence was subsequently built. The learned District Magistrate, however, brushed off all these pleas in the following words:

I am, however, unable to regard it as relevant in evidence as to whether or not the mosque is older than the temple or not. I am also not concerned with whether the temple is a temple or not. All I am concerned with is the fact that it is a building which has been constructed without permission, and the municipal board have by majority refused to allow it to remain. I am merely to decide whether or not the board's decision is legal. That it is legal there is no doubt whatever.

106. And he dismissed the appeal. This was on 23rd November 1938. More than 18 months after the dismissal of the appeal by the District Magistrate, the municipal board lodged a complaint under Section 307, Municipalities Act, on 26th June 1940. Dr. Brij Behari Lal tried to show before the Magistrate, who tried the case, that the notice served on him was not legal and reasonable and that as he had dedicated the temple and appointed certain persons as trustees before the issue of the notice, he was not in a position to comply with it. The Magistrate, however, thought that the reasons given were unsatisfactory and irrelevant, and consequently the evidence which he sought to produce in support of such reasons was shut off. As a result Dr. Brij Behari Lal was convicted and sentenced to a fine of Rs. 50 and in default of payment of such fine to undergo one month's simple imprisonment. The matter was then carried to the learned Sessions Judge of Saharanpur in revision and he has by his order dated 8th August 1941 made the reference which is now before this Court. The reference was laid in the first instance before Hon'ble Ganga Nath J. who stated that the point involved was 'what is the force of the notice given by the executive officer' and that as there was a conflict of authority on that point he requested the Hon'ble Chief Justice that it may be referred to a larger Bench. The case was then put up before a Bench of three Judges who referred it to a larger Bench.

107. The arguments in this ease were not confined to the point mentioned by Ganga Nath J. but they have covered the entire field directly or indirectly related to it and they may be formulated in the shape of the following questions : (1) Does Section 321, Municipalities Act, completely oust the jurisdiction of civil and criminal Courts (2) Does Section 321 afford the same protection, if the notice as mentioned in Section 186, is given by the executive officer of the board (3) Was the notice dated 10th June 1935 issued by the executive officer to Dr. Brij Behari Lal, legal and valid (i) Was Dr. Brij Behari Lal entitled to raise a defence that he was not in a position to comply with the notice and would that be an effective defence

108. Point 1--Section 321, Municipalities Act, runs thus :

(1) No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein;

(2) The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final.

109. It has been contended that in view of the provisions of this section the jurisdiction of both the civil and criminal Courts is completely ousted. In my opinion different considerations arise in the case of actions brought against the municipal board in a civil Court and in criminal cases lodged by the municipal board itself under Section 307, Municipalities Act. As we are not directly concerned with civil cases in the present reference I shall deal with the matter very briefly. On the ground that when a special tribunal is provided by statute the jurisdiction of all other Courts is barred, it was consistently held that civil Court had no jurisdiction. I may in this connexion refer to Municipal Board, Moradabad v. Shiam Lal : AIR1937All298 which was a case decided by Sulaiman C. J. and Bennet J. But the rigidity of this rule barring the jurisdiction of civil Courts appears to have been subsequently watered down. In the unreported case, Surjoo Bai v. Municipal Board, Jhansi : AIR1943All112 , decided by Allsop and Hamilton JJ., on 23rd October 1942, the following remarks occur in the judgment of Allsop J. :

On the other hand, I have no doubt that the civil Court can go into the question whether an order which purports to be made under Section 186, Municipalities Act, is in fact an order under that section. The nature of a transaction cannot be changed merely by giving it a name which does not properly apply to it. A transfer which has all the characteristics of a mortgage, for instance, does not become a sale merely because the parties choose to describe it as a sale. In the same way an order which does not come within the provisions of Section 186 does not become an order under that section merely because the board or any servant of the board chooses to describe it as an order under that section. There may be an order such as that described in Municipal Board, Moradabad v. Habib Ullah : AIR1939All383 which though purporting to be under Section 186 is not in fact within the province of that section. That was a case in which the board had allowed a person to erect a building and it was obvious that he committed no offence under Section 185 when he erected it. The board did not purport to consider that he had committed an offence. It is possible that there may be cases where it is so obvious that there was no offence under Section 185 that nobody could possibly hold that the board really considered that there had been an offence.

110. In Moradabad v. Habib Ullah : AIR1939All383 referred to by Allsop J., Verma J. delivered the judgment and made the following remarks :

The next argument advanced by the learned Counsel for the appellant is that the suit is barred by the provisions of Section 321, Municipalities Act. In order that that section of the Act may be applicable, it is necessary that the Order or direction made by a board should be under the powers conferred upon it by Section 186 or by Section 211. As we have pointed out above, the order or direction in this case is not in accordance with the powers conferred upon the board either by Section 186 or by Section 211. The suit cannot, therefore, be barred by Section 321.

111. It will be seen that the inflexible rule which was once laid that the civil Courts can have no jurisdiction with reference to order or direction referred to in Section 318 and. that Section 321 was a complete bar no longer exists. It has been conceded that in extreme cases where it is shown that the order which purports to have been passed under Section 186 or other similar sections was not under those sections the civil Court could step in and enquire into the allegations. I will leave it at this. Coming to the jurisdiction of criminal Courts, I think the matter stands on a different footing. The rule that where a special tribunal is provided by statute the jurisdiction of criminal Courts would be ousted does not apply because Section 307 itself permits submission by the board to ordinary criminal Courts. I am not at all prepared to lay down that Section 307 is also governed by Section 321. It is no doubt true that Section 321 occurs later than Section 307 and should ordinarily govern the latter, but it seems to me that the question of trial by an ordinary criminal Court under Section 307 has been added as a supplementary provision, Section 307 runs thus:

If a notice has been given under the provisions of this Act or under a rule or bye-law to a person, requiring him to execute a work in respect of any property, movable or immovable, public or private, or to provide or do or refrain from doing anything within a time, specified in the notice, and if such a person fails to comply with such a notice then -- (a) the board may cause such work to be executed or such thing to be provided or done, and may recover all expenses incurred by it on such account from the said person in the manner provided by Chap. 6; and further, (b) the said person shall be liable, on conviction before a Magistrate, to a fine which may extend to five hundred rupees, and in ease of a continuing breach, to a further fine which may extend to five rupees for every day, after the date of the first conviction, during which the offender is proved to have persisted in the offence.

112. It will be seen that the scheme of the Act would have been complete with Clause (a) and in that case the person concerned could not question in any other manner or by any other authority the order or direction referred to in Section 318; but by Clause (b) a further and a more drastic step is provided for the municipal board and it cannot be said with any justification that in the latter case Section 321 would be a bar. My learned brother Bajpai J., in Ms reference order in Parshottam Kandu v. Emperor : AIR1935All986 , has very tersely referred to this point in the following words:

Irrespective of case law it seems to me that the contention of the municipal board is difficult to accept. A man is being prosecuted in a criminal Court and he is able to satisfy the Court that the condition precedent on which the prosecution is based has not been satisfied and yet the criminal Courts have no option but to convict the accused by reason of a certain legislation. It is not necessary for the accused to plead anything except that he is not guilty and the burden is upon the prosecution to satisfy the criminal Courts that the accused has committed an offence.

113. The next case in favour of the municipal board is that of 1932 A.L.J. 579 decided by King and Thorn JJ. in which it has been dogmatically held that the criminal Court was, under Section S21, Municipalities Act, precluded from questioning the legality or validity of the notices and that it was not the duty of the Court under Section 307 to satisfy itself that notice was lawfully issued by the municipal board. The judgment of the case was delivered by King J. and it appears that while the municipal board was represented there was nobody to represent the accused. In a Pull Bench case from Lucknow, 11 Luck. 123 to which King J. was a party as Chief Judge of that Court, he appears to have slightly modified his view. He has laid down that if an appeal has been made to the District Magistrate under Section 318, the criminal Court in a prosecution under Section 307, could not go into the question of legality, validity and reasonableness of the notice, but if no appeal is made then the trying Magistrate could go into that question.

114. With utmost respect, I must say that the distinction does not appear to me warranted by the language of Section 321. The section only lays down that no order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein. It does not say that Section 321 will be a bar only in a ease where an appeal has been taken to the authority mentioned in Section 318. If this interpretation were accepted, it will be possible to make Section 321 nugatory; and in every case in which a person is served with an order or direction referred to in Section 318 he could not go in appeal to the District Magistrate and would only question that order on being prosecuted and then go to the highest Court in revision. This case in Har Prasad v. Emperor : AIR1932All673 was considered in the case in Parshottam Kandu v. Emperor : AIR1935All986 but the question involved was not decided. In the judgment delivered by Sulaiman C. J. the following passage occurs:

Even in the new Section 307 the words 'if a notice has been given under the provisions of this Act' occur at the very beginning of the section which the criminal Court cannot ignore. It may, therefore, be a question whether these words merely mean that when a notice has been given professedly by the board under the Act, the section applies, or that the section applies only where a notice has been given in compliance with the provisions of this Act. It is not necessary to express any final opinion on this question because in our opinion this is not a fit case in which it can be said that the notice issued was in reality not under the provisions of this Act.

115. In Baijnath Ram v. Emperor ('36) 23 A.I.R. 1936 All., the case in Har Prasad v. Emperor : AIR1932All673 was, however, approved by Sulaiman C. J. and Mulla J. In this case it was stated:

The contention on behalf of the applicant is that this view does not take into account the full effect of the words 'under the provisions of the Act' at the very beginning of Section 307 which ought to be interpreted to mean that the notice in question should not merely profess to be under the Act but should have been given in compliance with the provisions of the Act. We have no hesitation in holding that this interpretation is correct, but we find that it does not necessarily lead to the conclusion that the view taken by the learned Judges in Har Prasad v. Emperor : AIR1932All673 is open to any doubt.

116. It seems to me that their Lordships were very much impressed by the fact that the legality of the notice falling within the purview of Section 318 could be challenged in appeal and further that the District Magistrate if he had any doubt about the legality of the prohibition, direction, notice or order, was authorised to make a reference to the High Court. Their Lordships have stated :

It is clear... that a person aggrieved by a notice covered by Section 318 has been provided by the law with a complete opportunity of challenging the legality of that notice first in appeal before the District Magistrate or other special officer appointed by the Local Government and again by way of reference to the highest Court. There is consequently nothing anomalous or shocking to the sense of justice in the provision made by Section 321....

117. With greatest respect I must point out that it was probably not fully considered that it was at the discretion of the District Magistrate or the special officer to make a reference and the person aggrieved could not avail of that remedy if the District Magistrate did not so desire. In this way it will, in my opinion, be not correct to say that a complete opportunity of challenging the legality of the notice has been provided first in an appeal before the District Magistrate and again by way of reference to the highest Court. The case in hand presents an instance in point. In this case although Dr. Brij Behari Lal took objections that there was no mosque in existence within 200 yards when he built the temple and that was one of the reasons given by the board for ordering demolition and issuing notice, yet the learned District Magistrate remarked :

I am however unable to regard it as relevant in evidence as to whether or not the mosque is older than the temple or not. I am also not concerned with whether the temple is a temple or not. All I am concerned with is the fact that it is a building which has been constructed without permission and the municipal board have by majority refused to allow it to remain. I am merely to decide whether or not the board's the decision is legal. That it is legal there is no doubt whatever.

118. I believe the pleas taken by Dr. Brij Behari Lal concerned the validity of the notice and if the District Magistrate had considered those points it may have been possible for him to make a reference to the High Court but he thought they were all irrelevant. With that attitude of the District Magistrate it was not possible for Dr. Brij Behari Lal to urge that a reference ought to be made. I presume that Section 319 has been, mostly, a dead letter. In Ambica Prasad v. Emperor : AIR1936All693 decided by Allsop J., it was distinctly laid down that

an order issued under Section 186 can be questioned only by the appellate authority mentioned in Section 318 and it cannot be questioned in a criminal Court.

119. But in the course of the judgment, what looks like somewhat conceding in favour of the other view appears in the following words:

I can imagine extreme cases where the board purports to issue an order, say, under Section 186 or any other section mentioned in Section 318 and it is obvious that the section did not apply and in such circumstances it might perhaps be argued that the order was really not an order issued under that section under which the board purported to issue it.

120. In Surjoo Bai v. Municipal Board, Jhansi : AIR1943All112 Allsop J., amplified this point and laid down :

On the other hand, I have no doubt that the civil Court can go into the question whether an order which purports to be under Section 186, Municipalities Act is in fact an order under that section.

121. This was, of course, in a civil suit. In 1939 A. L. J. 703, Mulla J., stuck to his view expressed in 1935 A. L. J. 1260. The balance of authority is no doubt in favour of the municipal board but as the matter is now before the Pull Bench for reasons indicated above I would hold that the criminal Court trying a case under Section 307, Municipalities Act, was not debarred from going into the question of the legality of the notice on account of the bar laid down by Section 321, Municipalities Act.

122. Point 2. -- I have had the advantage of going through the judgment composed by my learned brother, Bajpai J. and I am in complete agreement with him in holding that the notice issued by the executive officer cannot be said to be a notice, order or direction referred to in Section 318 and therefore Section 321 will not be a bar. In an unreported case, Second Appeal No. 314 of 1935, Bennet J. sitting with Verma J., held that a notice issued by the executive officer was not appealable under Section 318 and therefore the bar laid down in Section 321 would not apply. He has given his reasons for that view with which I entirely agree. In the course of his judgment however the following passage occurs:

For the appellant it is pointed out that if the plaintiff had appealed to the board under Section 61, and the board had passed an order on the appeal, then an appeal would have lain under Section 318 against the appellate order of the board, and the jurisdiction of the civil Court would have been barred under Section 321. This is correct.

123. This is an obiter by Bennet J., with which I do not find myself in agreement. As I read the Municipalities Act I find that no second appeal is provided against the appellate order of the board passed under Section 61 of the Act. It is contended that after passing of the appellate order it should be taken that the notice issued under Section 186 was issued by the board itself and therefore an appeal 'shall lie under Section 818. If that view were correct every order of the trial Court when merged in the order of the first appellate Court could be taken as an order of the appellate Court and a second appeal would lie. Thus, it seems quite clear to me that an order passed under Section 61 on appeal is not an order or direction under Section 186 and no appeal would lie. Reliance was placed on behalf of the respondent on the definition of the word 'board' as given in Section 2(1) of the said Act and it is argued on its authority that in every place where the words 'executive officer' occur, the word 'board' could be substituted. The point has been discussed by Bennet J. in Municipal Board, Moradabad v. Hafiz Banne Section A. No. 314 of 1935 and I do not think I can profitably add anything to it. In Emperor v. Mathura Prasad ('42) 29 A. I. R. 1942 All. 441, Allsop J. has remarked

and it follows, therefore, that the executive officer is the board within the meaning of Section 211. It is true that his order is subject to appeal to the whole board but if no appeal is made or if the appeal being made is rejected then the order of the executive officer stands and this is an order by the board. The result is that an appeal lies from an order under Section 318, Municipalities Act, but if no appeal lay Section 321 says nothing about appeals.

124. The argument given in Section A. No. 314 of 1935, in my opinion, completely meets these arguments and I may reproduce them :

It may also be pointed out that if the Act intended that an appeal would lie under Section 318 from the order or direction of the executive officer, that section would have stated 'any order or direction made by a board or by an executive officer' and there would have been no provision in Section 61 for appeals from orders or directions of the executive officer to the board. Another point is that if the word 'board' is to include 'executive officer' for the appeal sections, that would imply that under Section 61 the executive officer would hear an appeal from the order of a medical officer of Health.

125. I hold, therefore, that a notice given by the executive officer under Section 186, Municipalities Act, would not have the same protection of Section 321 and that it was open to the criminal Courts to go into the question of the validity, legality and reasonableness of the notice which the Magistrate failed to do.

126. Point 3. -- On this point again, I am in agreement with the view expressed by my learned brother, Bajpai J. Dr. Brij Behari Lal asked permission to build 48 rooms giving their measurements and showing the positions in which they were to be placed along with the verandahs, privies and courtyards attached to them. There was nothing in the plan to show what the shape of the structure of the roofs would be, whether they would be flat or spiral or whether they would be in the form of domes. Sanction was given and a copy of the plan was attached to that sanction. Now it is not contended that one room which is said to be the temple was not built according to the measurements given or was not in the same position as it was shown in the plan but all that is contended is that it looks like a temple on account of having a spiral roof and therefore, it was not in accordance with the permission given. I may also add that in the notice given by the executive officer on 10th June 1935, there was a mention that a round platform was made by Dr. Brij Behari Lal contrary to the plan. But in all subsequent proceedings including the resolution, dated 10th May 1938 a reference to the chabutra was omitted.

127. It was alleged on behalf of the municipal board that there was some bye-law by which a person was prohibited from building within 200 yards of a temple, mosque or church another religious building of another denomination. It was merely in this light that the case was considered by the board and the District Magistrate. The matter that Dr. Brij Behari Lal contravened that bye-law was never gone into by the District Magistrate and was left out and so we have to see whether he had made any building in contravention of the sanction given to him. I am of opinion that merely by making the roof spiral he has not in any way gone against the permission given to him. I am fortified in this view by the ruling in 1900 A. W. N. 41. In that case the Mussoorie Municipality had granted permission to raise the roof of the kitchen attached to the house of the applicant. The kitchen was part of a block containing, besides the actual kitchen, certain servants' houses. The applicant raised the roof of the whole block by three feet and converted that portion which had formerly been servants' quarters into bed rooms and bath rooms. The applicant was thereupon prosecuted by the municipal board and was convicted but in revision the conviction was set aside and Blair and Burkitt JJ., made the following remarks :

No corporation can interfere with the uses of a room. We can all of us turn our dining room into an oratory or into a bath room without thereby committing any offences against any rules passed by the corporation within the limits of its powers.

128. I think therefore that the notice given to Dr. Brij Behari Lal was not a valid one and was vitiated by the fact that it was taken for granted that he could not build a spiral roof and make the use of the room as a temple.

129. Point 4. -- It was also a point urged by Dr. Brij Behari Lal that the temple was consecrated before the notice, dated 10th June 1935, reached him and therefore it was not possible for him to comply with it. It was urged that in those circumstances he could not be held to be guilty, but the criminal Court thought that it was not within its competence to go into that point. In my opinion, this is a point which too ought to have been considered by the criminal Court. The remarks of Mulla J. in : AIR1939All701 favour that view. He stated :

I am prepared to concede that the language of Section 307 necessarily implies that the person who fails to comply and thus renders himself liable to the penalty provided by the law must have the power to comply. It would obviously be highly unreasonable in my judgment to hold a person guilty of not complying with the notice when under the law he has not the power to do so.

130. In my judgment this is the correct exposition of the law. I therefore hold that Dr. Brij Behari Lal was entitled to show that he was not in a position to comply with the notice and his evidence was wrongly shut out. I would therefore pass the order proposed by my learned brother, Bajpai J. accepting the recommendation of the learned Sessions Judge for setting aside the conviction of Dr. Brij Behari Lal.

131. The result of our findings is that we accept this reference and set aside the conviction of the applicant and the sentence which has been imposed upon him. The fine, if paid, will be refunded.


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