1. This is a reference by the District Magistrate of Cawnpore under the following circumstances. A written notice was served on one Piare Lal by the Municipal Board of Cawnpore ordering him to pull down a chhajja recently built by him on the eastern side of his house and also to demolish a do-manzila on the western side within one week. He did not do so and was charged in consequence under Section 147 of the Municipalities Act 1 of 1900. He admitted receipt of this notice, but stated that he had not constructed any building without permission but that he had made ordinary repairs. No further evidence was tendered on behalf of the prosecution. The Bench trying the case held no offence had been proved against the accused and discharged him. The District Magistrate moved this Court suggesting that the validity of the notice issued by the Board was one which could only be questioned under Section 152 of the Municipalities Act and that not having been so questioned it was not open to the accused to attack its validity in a criminal Court in defence of a charge under S. 147.
2. What he was exactly charged with in this case was disobedience of a written notice lawfully issued by the Municipal Board under the powers conferred upon it by Chap. 7 of the Act. It seems to us that before anyone can be convicted of an offence under this section the Court must be satisfied that what he had disobeyed was a notice lawfully issued by the Board under the powers conferred upon it by the Act. This was held in Chhote v. Municipal Board of Lucknow (1) by one of us. It seems also to be in conformity with the principle laid down by a Bench of this Court in Empress v. Josoda Nand (2).
3. Let the papers be returned.
G.P/R.K
4. Reference not accepted.