1. This is a reference by the Additional Sessions Judge of Ghazipur recommending that the convictions of Parshottam Kandu under Sections 185 and 307, Municipalities Act, be set aside. The reference proceeded on the assumption that a mistake had been committed by the chairman of the Municipal Board in granting a conditional sanction to the applicant for re-erecting a wall of his house which was close to a lane, and that the chairman had no power to direct that the applicant before rebuilding his wall should leave a space of 9 feet to the south-west of the wall. The case came up before a learned Single Judge of this Court who was inclined to take the same view, but in view of certain conflict of opinion in this Court referred it to a Division Bench.
2. If we were to assume in favour of the applicant that he was trying to erect an old wall and not erect any building, then there might have possibly been something to be said in his favour, as Section 178 requires a notice in case of the erection of a building or part of a building, and in the case of a re-erection of a building only. But the Criminal Court has found that the accused constructed new wall in contravention of the plan and order of the Municipal Board, and not that he re-erected an old wall; and the Additional Sessions Judge is inclined to the same view. In any case it is an admitted fact that the applicant before making the construction did in fact send notice under Section 178, Municipalities Act. Such notice under Sub-section (2) of that Act is necessary where the building is adjacent to a public street or place. In the corresponding section of the earlier Act the word 'adjoining' was used, which has now been replaced by the words 'adjacent to.' Obviously '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.' There is no doubt that the construction in dispute actually abuts on the lane and is near it.
3. Under Section 180(5) it is incumbent on a person who has given notice under Section 178, not to commence any work of which notice has been given until sanction has been given or deemed to have been given by the board. This sub-section does not require that the notice under Section 178 must be such notice as was absolutely necessary to be given. Where the notice has been given under that section, Sub-section (5) is applicable.
4. It is not necessary to decide in this case whether the chairman of the Municipal Board acted beyond his powers in laying down the condition that a space of 9 feet should be left to the south-west of the proposed wall. But we would like to point out in order that it may not be understood that we necessarily agree with that view, that there is a possibility that the board would have authority to issue written directions under Section 180(1), under list A(h)(i) given below Section 298, prescribing the method of construction to be used for external walls. Again, it is equally possible that a case may fall under Section 180(1)(b) authorising the board to issue written directions requiring the setting back of a part of a building to the regular line of a street so as to leave a continuous line of frontage all along. As these questions have not been gone into, we express no opinion on them. As sufficient materials have not been laid before the Court, it is impossible to say that the chairman acted beyond his authority and that his order was illegal.
5. There is another more serious difficulty in the way of the applicant. Even if the direction were without authority, the fact remains that the sanction was given conditionally and allowed the applicant to erect the wall at a different place from that at which it has been built. There was accordingly no sanction given to the applicant to build the wall at the place where it has been actually constructed. The case therefore fell within the scope of Sub-section (5) of Section 180, and the applicant commenced his work without having obtained a proper sanction. When the chairman had laid down a condition that the wall should be constructed leaving a space of 9 feet, it cannot be suggested that an implied sanction must be deemed to have been given to construct a wall without leaving such space. The applicant therefore contravened the provisions of Section 180(5) in constructing the wall. That being so, Section 185 of the Act is applicable to him because he began, continued and completed the erection or re-erection of a part of the building 'in contravention of the provisions of Section 180(5),' and was therefore liable upon conviction to a fine. It follows accordingly that the board had a perfect right under Section 186 of the Act to issue a written notice directing him to stop the crection or re-erection of a part of his building as well as to direct the demolition of a part of the building as was considered necessary. It is impossible for the applicant to contend that the notice issued under Section 186, when he had contravened the provisions of Section 180(5), was in any way illegal. The conviction of the applicant under Section 185 of the Act was therefore perfectly right and cannot be impugned.
6. The next question is whether his conviction under Section 307 can be sustained. The learned Assistant Government Advocate urges before us that under Section 321 of the Act 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, i.e., in Section 318. It would seem prima facie that the orders passed under Section 318 are absolutely final and cannot be questioned afterwards. In this respect the language of section 321 is somewhat different1 from that employed in Section 164 where the provision is that the liability of a person cannot be questioned in any other manner or by any other authority 'than is provided in this Act' Kashi Prasad v. Municipal Board, Benares 1935 All. 28. It is also the fact that the language of Section 307 has been amended, and in place of the words in Section 147 to the effect 'any lawful direction given by the Board by public notice under the powers conferred upon it by this chapter, etc., etc.,' we now have the words: 'If a notice has been given under the provision of this Act or under a rule or byelaw to a person, etc.' In several cases of this Court, decided by Single Judges, the opinion has been expressed that if the action of the Board was without authority and was in direct contravention of the Municipalities Act, then its illegality and its ultra vires nature can he questioned before the Criminal Court which is called upon to convict the accused. We may refer to Ram Partap Marwari v. Debi Prasad 1920 All. 192; Municipal Board, Etawah v. Debi Prasad 1920 All. 485 and Kashmiri Lal v. Emperor 1921 All. 267. The earlier case reported in Emperor v. Piare Lal 1914 All. 41, is not in point, because it was decided under the former Act. On the other hand, a Bench, of this Court in Har Prasad v. Emperor 1932 All. 673 has expressly held that it is not open, to the Criminal Court hearing a case under Section 307 of the Act to enquire, into the legality or otherwise of the notice issued by the Board. We understand that the majority of the Full Bench of the Oudh Chief Court apparently overruling their previous decisions in Ram Charan v. Improvement Trust, Lucknow 1925 Oudh. 546 and Yusuf Husain v. Emperor 1932 Oudh. 306 have decided that the legality of the notice cannot be gone into under Section 307 of the Act. There is however one consideration which does not appear to have been strongly pressed at the bar. 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. As already pointed out by us, section 186 was directly applicable because the accused had contravened the provisions of Section 185 inasmuch as he had commenced the construction without a previous sanction in defiance of Section 180(5). We therefore do not think that this is a fit case in which this question should be considered.
7. It may however be pointed out that the Magistrate has not only convicted the accused and fined him but has also imposed a continuing fine of Re. 1 pier day with effect from the expiry of three days allowed for the demolition of the wall. Section 307(b) is applicable only to a case of a continuing breach, where the offender is proved to have persisted in the offence. Obviously the conviction for such an offence must be on account of an offence which has already been committed. For such an offence therefore a second prosecution would be necessary.
8. We accordingly accept the reference in part and set aside the order of the Magistrate relating to the imposition of the continuing fine, and uphold the convictions of the accused under Sections 185 and 307 and maintain the sentences of Rs. 30 and Rs. 5 passed on him under those sections.