JUDGMENT

Sulaiman, C.J. - 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 u/s 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 In the corresponding section of the earlier Act the word "adjoining" was used, which has now been replaced by the words "adjacent to."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. u/s 180(5) it is incumbent on a person who has given notice u/s 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 u/s 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 u/s 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 u/s 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