K.N. Seth, J.
1. This is an appeal by the Municipal Board, Sikandarabad. against the order of acquittal of the respondent, who was put up for trial for offences punishable under Sections 185/ 210 of the U. P. Municipalities Act. 1916. The case of the prosecution was that the respondent had constructed a four storeyed building without obtaining proper sanction from the Municipal Board.
2. The respondent made an application on 20-3-1964 for sanction of a plan of a two storeyed building and he was accorded the necessary sanction by the Board by an order dated 6-6-1966. On 22-9-1967 a report was made by the Overseer that the constructions were made not according to the plan sanctioned by the Board and further that the respondent had built two additional storeys on the same building. In pursuance of that report the Board sent a notice dated 26-10-1967, under Section 184/211 of the U. P. Municipalities Act, to the respondent asking for his explanation and to show cause why action be not taken against him according to law. The respondent replied to theforesaid notice which was received in the office of the Board on 14-11-1967 and took up the stand that he had constructed two storeys with the sanction of the Board and the remaining two storeys were constructed in anticipation of the sanction as he had, about a year back, made an application for grant of the necessary sanction which had not been received till then. It was also alleged that the projection etc. existed in the old building and no difference arose because of the projection in the newly constructed building. It appears that the office put up a report on this reply of the respondent to the effect that the building which had been constructed was not according to the sanctioned plan and that no application had been made for constructing the third and fourth storeys and projections etc. were also made without the necessary sanction. It was recommended that action should be taken against the respondent under Sections 185/210 of the U.P. Municipalities Act as the explanation submitted by him was not satisfactory. On this report it was directed that the necessary complaint be filed which was done and this has given rise to the present appeal by the Board.
3. The learned Tahsildar Magistrate by his order dated 30-12-1968 acquitted the respondent on the finding that the Board had failed to specify by positive evidence as to what were the material changes not covered by the approved site plan in respect of the first two storeys of the buildirg. As regards the third and fourth storeys, the view taken by the learned Magistrate was that they had been constructed in anticipation of the permission for which, according to the respondent, he had made an application. On the question whether such an application had actually been made or not, the learned Magistrate came to the conclusion that the prosecution witnesses had given evasive and indefinite statements to the effect that they did not know about it. The learned Magistrate was further of the opinion that under Section 178 (1) of the U. P. Municipalities Act only in those cases where the construction is adjacent or abuts on the public lane or property that the sanction is essential and since the third and fourth storeys did not touch the public lane at any place, no sanction was necessary for construction of the third and fourth storeys.
4. The learned Counsel appearing for the appellant has fairly conceded before me that he does not press the appeal in respect of the changes made in the two storeys building against the sanctioned plan. The only question that,therefore, remains is whether the respondent was entitled to construct third and fourth storeys without obtaining the necessary sanction of the Board.
5. Section 178. of the U. P. Municipalities Act requires that (a) to erec a new building or new part of a building.or (b) to re-erect, or make a material alteration in a building, or (c) to make or enlarge a wall, a person shall give notice of his intention to the Board. Sub-section (2) of Section 178, however. lays down that no notice Would be required in case of a building unless the building abuts on or is adjacent to a public street or property vested in Government, or in the Board unless it is so required by the bye-laws applicable to the area in which the building is situated. In the present case the respondent had made an application for the grant of the necessary sanction when he wanted to construct the present building and the necessary sanction was granted to him for the construction of a double storeyed building. This indicates that under the bye-laws framed by the Board, a person was required to give the necessary notice before he could make the construction.
6. Learned counsel for the respondent relied on Sub-section (3) of Section 180, which reads as follows:'(3) Should the board neglect or omit for one month after the receipt of a valid notice under Section 178 to make and deliver to the person who has given such notice an order of the nature specified in Sub-section (1) in respect thereof, such person may by a written communication call the attention of the board to the omission or neglect, and if such omission or neglect continues for a further period of fifteen days, the board shall be deemed to have sanctioned the proposal work absolutely.'A plain reading of the sub-section indicates that when a valid notice under Section 178 is given to the Board and the Board omits or neglects to pass an order of the nature specified under Sub-section (1) of Section 180, the applicant has to send a written communication drawing the attention of the Board to the omission or neglect and in, case the Board fails to pass the necessary orders within a further period of fifteen days, the Board would be deemed to have sanctioned the proposed work absolutely. Before a person can take advantage of this provision of the Act, it has to be established that he made an application for the grant of the sanction and then on the failure of the Board to pass necessary orders within a period of one month. he drew the attention of the Board to its omission or neglect by awritten communication and it was only, after the second notice was given and the Board still failed to pass the necessary orders within a period of fifteen days that the sanction would be deemed to have been granted by the Board.
7. In the present case the respondent, except for alleging in his reply that he made an application for sanctioning the construction of the third and fourth storeys, has placed no material on the record which would entitle him to the benefit conferred by Sub-section (3) of Section 180. No copy of the alleged notice or a receipt or an acknowledgement by the Board has been produced. There is not even a suggestion that a notice drawing the attention of the Board to its omission or neglect was sent by the respondent. The Executive Officer. Sir Satish Chandra (P. W.). stated in cross-examination that to his knowledge the respondent had made no such application. Of course, he submitted that on receipt of the reply he did not make a search for the application alleged to have been sent by the respondent. On the basis of the evidence on record it has to be held that the respondent has miserably failed to establish that he had become entitled to make the disputed constructions even without the formal sanction of the Board. Assuming that an application for sanctioning the disputed constructions had been made, there is not even an assertion that a written communication had been sent inviting the attention of the Board to its omission or neglect and unless this further communication had been made, the respondent could not take any advantage of the neglect or omission on the part of the Board.
8. Learned counsel for the respondent relied on Briinandan Prosad v. Emperor. : AIR1945All232 wherein it has been laid down that the failure of the Board to pass a suitable order within a month of the receipt of the notice under Section 178 entitled the applicant to make the construction and that the Board in such a situation would be deemed to have sanctioned the proposed work. It does not appear from the facts of the aforesaid case, as narrated in the judgment, whether a written communication as contemplated under Sub-section (3) of Section 180 calling the attention of the Board to its omission or neglect had or had not been given. There is no discussion about this point in the case. In the present case the attention of the Board was not drawn to its omission or neglect to pass an order as specified under Sub-section (1) of Section 180. In the circumstances, the respondent1972was not entitled to construct the third and fourh storeys of the building as the Board could not be deemed to have sanctioned the proposed work.
9. The reasoning of the learned Magistrate that as the third and fourth storeys did not touch the public place or the public lane at any place and the distance of the third and fourth storeys from the public lane was substantial, no notice under Section 178 (1) of the Municipalities Act was necessary, is without any merits, Sub-section (2) of Section 178 provides that in the case of a building. the notice referred to in Sub-section (1) would only be necessary if the building abuts on. or is adjacent to, a public street or property vested in Government, or in the Board. It would. however be necessary in respect of all buildings if a bye-law in respect. of the area in which the building is situated provides for it. In the case of Emperor v. Parshottam : AIR1935All986 a Bench of this Court held that 'adjoining a public street or place,' would mean 'actually touching the public street or place' whereas 'adjacent to such street' merely means 'near such street.' In the present case there was no dispute that the building was near the public lane. It is meaningless to contend that the third and fourth storeys did not touch the public lane.
10. The appeal is accordingly allowed. The order of the court below dated 30-12-1968 acquitting the respondent is set aside. He is convicted under Sections 185/210 of the Municipalities Act and sentenced to a fine of Rs. 500/-.Appeal allowed.