JUDGMENT Chamier, J. - This is an application for revision of an order passed by a Magistrate in the Etawah district convicting the applicant of an offence under section. 147 of the N.W.P. and Oudh Municipalities Act (I of 1900) and sentencing him to pay a fine of rupees ten. The facts are stated as follows by the Sessions Judge who refused to interfere with the Magistrate's order. In 1865 certain shopkeepers at Etawah entered into an agreement with the Municipal Commissioners of the town for the construction of a ganj, now known as Hume Ganj. The agreement provided that if the buildings were erected in contravention of the plans, the Municipal Commissioners would be entitled to interfere and would also be entitled to forbid the making of additions or changes in the buildings. On January 18th, 1909, the Municipal Board of Etawah issued a notice to the applicant under subsection (5) of section 87 of the Municipalities Act requiring him to remove a wall on the upper storey of his shop in the ganj on the ground that it had been erected without permission and contrary to the original plans. Similar notices were issued to Daya Ram and Kashi Ram, who are the applicants in Criminal Revisions Nos. 351 and 352. Prosecutions were instituted on the applicants failing to comply with the notices. It has been contended throughout that the Board had no power to issue the notices. 2. Both the courts below have declined to consider this plea, holding that if the applicants wished to challenge the legality of the notices they should have appealed u/s 152 of the Act. That section provides inter alia that any person aggrieved by notice from a Board under sub-section (5) of section 87 or sub-section (2) of section 88 requiring the alteration or demolition of a building may within a certain. That section provides inter alia that any person aggrieved by notice from a Board under sub-section (5) of section 87 or sub-section (2) of section 88 requiring the alteration or demolition of a building may within a certain. time appeal to a certain authority and "no such notice shall be liable to be called in question otherwise than by such appeal." In the case of Alopi Din v. The Municipal Board of Allahabad Weekly Notes, 1907, p. 2, where a Board had by a notice purporting to be issued u/s 88 of the Act required a person to remove a wall which the court found did not overhang, project into, or encroach on any street or into on or over any drain, sewer or aqueduct therein, the notice was challenged by suit and the court gave the plaintiff a declaration that the order was not within the competence of the Board and was invalid. Relying partly upon this decision I held in a case that came before me as Judicial Commissioner of Oudh that a conviction u/s 147 of the Act for disobeying a notice issued under sub-section (2) of section 88 could be challenged in revision on the ground that the notice was ultra vires of the Board. 3. It appears to me that precisely the same consideration arises in the case of a notice purporting to have been issued under subsection (5) of section 87 of the Act. If the Board have no power whatever to issue the notice it cannot be considered to be a notice under that section and the provisions of section 152 do not apply. In the case now before me it is abundantly clear that the Board had no power to issue the notices in question. The section applies to new buildings. Sub-section (1) provides that every person who intends to erect or re-erect any building of the kinds specified shall give notice to the Board. Under sub-section (2) the Board may require a person who has given such notice [i.e. notice under sub-section (1)]. to submit plans, etc. Sub-section (3) applies only to valid notices given under sub-section (1). Sub-section (1) provides that every person who intends to erect or re-erect any building of the kinds specified shall give notice to the Board. Under sub-section (2) the Board may require a person who has given such notice [i.e. notice under sub-section (1)]. to submit plans, etc. Sub-section (3) applies only to valid notices given under sub-section (1). Sub-section (4) determines the period for which sanction given, by the Board is to remain in force, and lastly sub-section (5) provides that should any such building be begun or erected without sanction or in contravention of the directions of the Board under sub-section (1) or after the sanction has elapsed, the Board may by notice require the building to be altered or demolished. It is quite clear that the words "such building" in sub-section (5) apply only to buildings of the kind referred to in the preceding sub sections, i.e. new buildings in respect of which notice should have been given under sub-section (1). It has been found that the walls referred to in the notices now in question were built many years ago. It is not suggested that they were built after the passing of the Act of 1900 or at a time when there was any rule or bye-law in force requiring the sanction of the Board to the building of the walls. That the walls were built in contravention of the agreement of 1865 is immaterial, for the Board cannot enforce the agreement by proceedings taken under the Act of 1900. Nor are the persons who built the walls liable to be punished u/s 147 of the Act for breaches of that agreement. It seems to me quite clear that section 87 was not intended to empower a Board to require a man to pull down his house, though the house may have been standing for 50 years or more. In this connection I may refer to the case of Hyam Vs. Corporation of Calcutta, (1906) ILR (Cal) 646 in which a similar question arose under the Calcutta Municipal Act. The Magistrate who tried these cases saw the absurdity of applying section 87 to such cases as these, for he declined to order the demolition of the walls, saying that the Board would have to go to the Civil Court to enforce the agreement of 1865. The Magistrate who tried these cases saw the absurdity of applying section 87 to such cases as these, for he declined to order the demolition of the walls, saying that the Board would have to go to the Civil Court to enforce the agreement of 1865. I allow this and the connected applications, set aside the orders of the Magistrate and direct that the fine, if paid, be refunded.