JUDGMENT : R.N. Misra, J. - This application in revision is against a conviction of the Petitioner u/s 385-A read with Section 273-A of the Orissa Municipal Act, 1950. He has been sentenced to pay a fine of Rs. 50/- or in default to suffer simple imprisonment for a week. 2. From the facts of the case it transpires that the Petitioner was the owner of an existing house on the Hatapada lane of Marwaripara within the Sambalpur Municipal limits. It was alleged that he carried on construction of addition and alteration in contravention of lawful orders of the Executive Officer of the Municipality. The material portion of the prosecution report stated thus: He has closed the windows of Sri Chhotelal Tewari though he was directed not to do so. The accused has forcibly started construction of a wall just close to the northern wall of Sri Chhotelal Tewari and closed the windows and prevented from light and air which are existed more than 40 years. He was served with a notice u/s 273-A of the Orissa Municipal Act, 1950 on 2-1-1967, but to no effect. The accused may be summoned to stand his trial u/s 273-A and 385A of the Orissa Municipal Act, 1950 for violation of the lawful orders of the Executive Officer, Sambalpur Municipality to demolish the construction unlawfully executed. 3. The defence taken in this case is available from the statement u/s 342, Code of Criminal Procedure. From the examination u/s 342, Code of Criminal Procedure of the accused-Petitioner, it is clear that he had stuck to the plan and there was no violation. He also stated that Chhotelal, the neighbour had no windows and the accused had not closed any such windows. 4. Prior to the prosecution of the Petitioner a notice had been issued to him which has also been placed before the Court. The notice, Ex. 1 is to the following effect: Provisional Order and Show Cause Notice u/s 273(a) of The Orissa Municipal Act. To Sri Kaniram Bagarti At-Dhobapara, Sambalpur. 4. Prior to the prosecution of the Petitioner a notice had been issued to him which has also been placed before the Court. The notice, Ex. 1 is to the following effect: Provisional Order and Show Cause Notice u/s 273(a) of The Orissa Municipal Act. To Sri Kaniram Bagarti At-Dhobapara, Sambalpur. Whereas the Executive Officer, Sambalpur Municipality is satisfied that you have carried on construction of addition and alteration to your holding No. 201 and 208 at Dhobapara otherwise than in accordance with the plan, in breach of the O.M. Act and the rules made thereunder, I serve on you this provisional order requiring you to demolish the construction unlawfully executed/to make such alteration as suggested below and further refrain from proceeding with the same. You are further called upon to show cause by 7-2-1967 of the receipt of this notice why the provisional order shall not be confirmed. Sd/-Illegible, Executive Officer, Sambalpur Municipality. You should open the windows of Sri Chhotelal Tewari by removing obstruction. 5. The learned Magistrate came to hold thus: Though Ext. A (the approved plan) does not contain any condition for giving space for the window of Chhotelal Tewari, still the Executive Officer can issue Ext. 1 u/s 273-A(1)(iii) of the said Act which is also permissible. In this particular case the Executive Officer has acted u/s 273-A(1)(iii) and Section 273-A(1)(i)(h), of the said Act. If the work of the accused is in accordance with Ex. A, the plan, the Executive Officer cannot proceed u/s 273-A(1)(i)(b), but he can proceed u/s 273-A(1)(iii) since the accused in his opinion has violated the, provision of Section 273 read with Rule 532 of Orissa Municipal Rules. The scope of enquiry and the nature of enquiry made by the Executive Officer before issuing Ex. 1 has not been challenged before me. The only challenge that was made is that the accused has worked in accordance with Ex. A and not beyond that. I find that even if the accused has worked according to Ex. A, still he has to remove obstructions if he had violated the Rules 532 of the Orissa Municipal Rules, which facts possibly could not be detected when Ex. A was approved. 6. Mr. Rath, learned Counsel appearing on behalf of the Petitioner contends that the order under Ext. 1 was not a lawful one. A, still he has to remove obstructions if he had violated the Rules 532 of the Orissa Municipal Rules, which facts possibly could not be detected when Ex. A was approved. 6. Mr. Rath, learned Counsel appearing on behalf of the Petitioner contends that the order under Ext. 1 was not a lawful one. Once it is found that there was no deviation from the approved plan (Ex.A), Mr. Rath contends, the direction contained in Ex. 1 for violation whereof the present prosecution has been launched is without any authority of law. As would appear from Ex. 1, the allegation against the Petitioner was that he "carried on construction of addition and alteration to his holding otherwise than in accordance with the plan, in breach of the Orissa Municipal Act and the rules made thereunder". It was not specifically indicated in the said notice Ext. 1 as to whether the construction was otherwise than in accordance with the plan or it was in breach of the Act or the rules made thereunder, but all the three clauses were incorporated. The notice seems to be a common printed form. At the bottom of it in handwriting the following was inserted: You should open the windows of Sri Chhotelal Tewari by removing obscuration. This endorsement in the background of what is printed in the notice is absolutely not meaningful. The Petitioner not having closed the windows of Chhotelal Tewari it is difficult for one to make any meaning out of this endorsement. The plan had already been approved and the construction on the finding of the learned magistrate was proceeding in accordance with the plan. It is not known whether the neighbour had a right to receive light and air through his windows which are said to be in existence. The 'prosecution in this case is not one for violation of any rule as the prosecution report does not show it. It is only for violation of the order Ext. 1. That order as I have just indicated cans upon the Petitioner to open the windows of Chhotelal by removing obstruction. The direction is absolutely not clear and in the circumstances there was sufficient room for the Petitioner to be misled. It is only for violation of the order Ext. 1. That order as I have just indicated cans upon the Petitioner to open the windows of Chhotelal by removing obstruction. The direction is absolutely not clear and in the circumstances there was sufficient room for the Petitioner to be misled. Since the consequences of such a notice are rather far reaching and on one hand entail criminal prosecution and on the other a forcible demolition of what may in many cases turn out to be valuable construction, the authority charged with the responsibility of issuing such a notice is bound to act with greater care and due caution so that the person who is called upon to comply with a direction of his must be in a position to know what he is called upon to perform. If the direction calling upon the citizen to perform a particular act is not clear and has in itself an element of confusion, it is indeed difficult to hurl up a citizen for violation of such a direction and sustain a prosecution upon the alleged basis of violation of such a direction. In the circumstances I find it difficult to hold on the basis of Ext. 1 that the Petitioner though called upon to do something positive by the municipal administration had failed to comply with it. 7. On my aforesaid finding the matter could have concluded here and I could proceed to record a judgment of acquittal. But Mr. Mohapatra, learned Counsel appearing for the Executive Officer of the Municipality has raised a serious aspect for consideration. He contends that once it is brought to the notice of the criminal Court that there has been a violation of an order, any challenge to the legality of the order is not open to he adjudicated upon in the criminal Court. The duty of the criminal Court in such an eventuality is only to proceed to convict the delinquent leaving no room for the Court to determine as to whether there is any basis for the prosecution and there is any justification for it and as to whether the ingredients of the offence have been made out. In support of his proposition, Mr. Mohapatra has placed before me some decisions. They are, Bassarmal Bhojrajmal Flour Mills v. The State AIR 1954 Ajmer 4, Budhu Mohan and Another Vs. Corporation of Calcutta and Another. In support of his proposition, Mr. Mohapatra has placed before me some decisions. They are, Bassarmal Bhojrajmal Flour Mills v. The State AIR 1954 Ajmer 4, Budhu Mohan and Another Vs. Corporation of Calcutta and Another. Dwarka Mahton Vs. Patna City Municipality. The Dargah Committee, Ajmer Vs. State of Rajasthan, and Nani Gopal Biswas Vs. The Municipality of Howrah. In the Calcutta case referred to above, Sen, J. who was in section of a revision application from a conviction under the Municipal Act and the accused in that case had disobeyed a notice under Rule 4(2) of the Rules made under the Calcutta Municipal Act asking a tenant to vacate the premises which had become dangerous for Occupation stated: Further I would point out that Section 511, Calcutta Municipal Act makes it additionally clear, that this question is one which is to be decided exclusively by the Corporation. Section 511 of the aforesaid Act provides that if any person is dissatisfied or objects to the issue of such notice his remedy lies in making an application to the Corporation within a certain period. The section also provides that the Corporation shall consider and decide the objection. It is thus clear that the statute has provided the tribunal to decide this question, that tribunal being the Corporation itself. In the circumstances I do not see how it can be argued that the question can be re-agitated before the Municipal Magistrate who is trying persons for disobeying a notice. 8. In the Patna case the prosecution was u/s 194(2) of the Bihar & Orissa Municipal Act, 1922 for failure to comply with a notice to demolish a certain building. A Division Bench of the Patna High Court took the view that the scheme of the Act is that it is for the Municipality to decide not only whether a building is in a ruinous condition or is dangerous to person or property, but also whether demolition is necessary or repairs would suffice. The decision of the Municipality is not one to be questioned in the Courts, but the rate-payer is not absolutely helpless for he has the alternative preferring an objection under Election 360. Hence a notice is not contrary to law even though it does not give the accused the choice between demolition and repair. The decision of the Municipality is not one to be questioned in the Courts, but the rate-payer is not absolutely helpless for he has the alternative preferring an objection under Election 360. Hence a notice is not contrary to law even though it does not give the accused the choice between demolition and repair. In another portion of the said judgment it was stated: To a charge u/s 194(2) for failure to comply with notice to demolish certain building, the accused cannot urge before the Court that the requisition for demolition was unnecessary. It is for the Municipal Commissioners to decide whether the issue of a requisition is necessary and the accused can prefer an objection to such notice u/s 360. 9. The next case cited by Mr. Mohapatra is of the Supreme Court in Nani Gopal Biswas Vs. The Municipality of Howrah Sinha, J, as he then was, stated: The contention now has narrowed down to this that the notice having been headed as u/s 299 of the Act, the conviction u/s 300 is illegal, because it is further argued, the requisition had not been 'lawfully made'. According to this argument the requisition would have been 'lawfully made', if the notice had been headed as u/s 300. Hence the label given to the notice makes all the difference between a requisition 'lawfully made' and a requisition not so made. In our opinion, this argument has only to be stated to be rejected. It is the substance and not the form of the notice that has to be regarded. The effective part of the notice quoted above, leaves no doubt in the mind of the parties concerned that the requisition is to remove the encroachment caused by the compound wan. As it has not been contended that the Appellant had not received the notice, and it is common ground that the Appellant, had not carried out the terms of the notice, there cannot be the least doubt that the Appellant has incurred the penalty u/s 488(1)(c), read with Section 300. It must, therefore, be held that notwithstanding the label given to the notice, the requisition had been lawfully made in the sense that the Appellant had made the encroachment complained of, and that the municipality was entitled to call upon him to remove the encroachment. Though Mr. It must, therefore, be held that notwithstanding the label given to the notice, the requisition had been lawfully made in the sense that the Appellant had made the encroachment complained of, and that the municipality was entitled to call upon him to remove the encroachment. Though Mr. Mohapatra cited this decision in support of his proposition in the ultimate analysis it goes contrary to his submission and supports the other view that the lawful nature of an order is open to examination. If the matter was not open to question the simple answer offered by their Lordships to reject the contention would have been what Mr. Mohapatra contends before me. On the other hand, their Lordships were prepared to examine the legality of the order and actually went into it, but found that the ground upon which the objection was raised was a frivolous one. 10. I would proceed to refer to the next decision cited by Mr. Mohapatra of the Supreme Court in The Dargah Committee, Ajmer Vs. State of Rajasthan. The prosecution in that case was under the Ajmer Merwara Municipalities Regulation (6 of 1925). The facts of that case as have been stated in the words of Mr. Justice Gajendragadkar (as he then was) are these: On June 13, 1950, the Municipal Committee, Ajmer, Respondent 2, issued a notice against the Appellant, the Dargah Committee, Ajmer, u/s 153 of the Ajmer-Merwara Municipalities Regulation, 1925 (VI of 1925)(hereafter called the Regulation) calling upon it to carry out certain repairs in the Jharla Wall which was in a dilapidated condition. The Appellant did not comply with the said requisition and so Respondent 2 served another notice on the Appellant u/s 220 of the Regulation intimating to it that the required repairs would be carried out at the expense of Respondent 2 and that the cost incurred by it would be recovered from the Appellant. This notice was served on July 3, 1950. Even so the Appellant took no steps to make the repairs and so Respondent 2 procedure to get the repair work done at its expense which amounted to Rs. 17,414/-. u/s 222(4) of the Regulation this sum became recoverable from the Appellant as a tax. This notice was served on July 3, 1950. Even so the Appellant took no steps to make the repairs and so Respondent 2 procedure to get the repair work done at its expense which amounted to Rs. 17,414/-. u/s 222(4) of the Regulation this sum became recoverable from the Appellant as a tax. A notice of demand in that behalf was issued on the Appellant an April 1, 1952, and in pursuance of the said notice Respondent 2 applied to the Additional Tehsildar and Magistrate, II Class, Ajmer, for the recovery of the said amount u/s 234 of the Regulation. Under Section 234 of the Regulation such amounts of expenses are recoverable as tax. The nature of the proceeding under that Act before the criminal Court is actually of a summary type and seems to be a process in execution. When certain pleas were raised before the learned Magistrate who came to be in seisin of the case the question for consideration arcse as to whether such pleas were tenable. Dealing with that matter, their Lordships held: Now looking at Section 234 it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings. All questions which may legitimately be raised against the validity of the notice served u/s 153 or against the validity of the claim made by the Committee u/s 222 can and ought to be raised in an appeal u/s 93(1), and if no appeal is preferred or an appeal is preferred and is dismissed then all those points are concluded u/s 234. That is why the nature of the enquiry contemplated by Section 234 is very limited and it prima facie partakes of the character of a ministerial enquiry rather than judicial enquiry. In any event it is difficult to hold that the Magistrate who entertains the application is an inferior criminal Court. The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the, tax by distress and sale of the movable property of the defaulter. If at 9011, this would at best be s proceeding of a civil nature and not criminal. The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the, tax by distress and sale of the movable property of the defaulter. If at 9011, this would at best be s proceeding of a civil nature and not criminal. That is why, we think whatever may be the character of the proceeding, whether it is purely ministerial or judicial or quasi-judicial, the Magistrate who entertains the application and holds the enquiry does so because he is designated in that behalf and so he must be treated as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure. If this is what their Lordships stated while examining a particular section of the Regulation, I do not think Mr. Mohapatra is entitled to draw any assistance for guidance in the present case from the aforesaid judgment of their Lordships of the Supreme Court. The position in the present esse seems to be very different. The Legislature in the present case seems to have clear indicated that the order of the Municipal authorities must be lawful and the Petitioner has now been prosecuted for violation of an allegedly "lawful order". If the Petitioner challenges the lawfulness of the order, it is necessary to examine and find first that the order alleged to have been violated is a lawful one. The scheme of the Municipal Act is not that the criminal Courts would abdicate their powers of determination to the Municipal authorities and in a prosecution under the Municipal Act the role to be played by the Court who is ultimately to punish, is to be dictated and guided by the Municipal authorities. 11. Mr. Mohapatra fairly brought to my notice some decisions which had taken a different view. Examining the position in this Court in a case reported in Rajballav Misra v. Executive Officer N.A.G. Bhubaneswar 22 C.L.T. 202, Narasimham, J. (as he then was) indicated that it was open to a Court to look into the legality of the order. In Kallianikutty Amma Vs. State of Kerala C.J., examined the matter on merits in a municipal prosecution and came to hold: I hold that the Municipality was not justified in peeking to proceed against the Petitioner u/s 338 for any unauthorised construction of a building or part thereof. 12. In Kallianikutty Amma Vs. State of Kerala C.J., examined the matter on merits in a municipal prosecution and came to hold: I hold that the Municipality was not justified in peeking to proceed against the Petitioner u/s 338 for any unauthorised construction of a building or part thereof. 12. In yet another case reported in Vyra Municipality Vs. Fulchand Ganpatlal Shah a Division Bench of that Court examined the merit of the prosecution case at length in a municipal offence. The invalidity of the municipal action was upheld by Mr. Justice Shah (as be then was) after examination of the details of the case. The Court held: Section 96A(1) contemplates those cases where consistently with the rules and bye-laws framed by the municipality an application is submitted for permission to construct or add to or alter a building by a house-owner and the municipality intends to refuse to grant the permission applied for. But the refusal by the Municipality can, by the express words used in Section 96A(1) of the Act, be valid only if the municipality passes a resolution proposing to acquire the land on which the Applicant desires to erect a building or to alter, add to or reconstruct any building situated on the land. If the municipality does not pass a resolution proposing to acquire the land and refuses permission which is applied for u/s 96(1), the refusal is invalid. In the present case, there is no evidence on the record to show that the Municipality of Vyara had passed any such resolution proposing to acquire the land on which the building of the Respondent stood. The refusal by the Municipality, is, therefore, in our judgment, invalid, and construction of a building in contravention of that refusal is not effectively penalised by Sub-section (5) of Section 96 of of the Act. 13. I find a Bench of this Court in the case of Special Officer, District Board Cuttack v. Paramananda Rath 20 C.L.T. 57 was also examining the validity of a prosecution under the Bihar & Orissa. Local Self Government Act for trading without licence. The condition precedent for obtaining a licence was payment of a fee and an excessive fee was being demanded. Local Self Government Act for trading without licence. The condition precedent for obtaining a licence was payment of a fee and an excessive fee was being demanded. This Court held: Therefore, in the circumstances of the present case the demand of the licence fee was a demand for taking out a licence for carrying on the trade in jute, which, as I have held, the District Board was not authorised to do, and as such, the prosecution was not competent. 14. On the aforesaid analysis of the matter I am not prepared to hold that in a prosecution of this type it is not open to the accused to resist the prosecution on the basis that there is no justification for it. If there is a valid order under the Municipal Act, violation whereof is punishable it must be shown that the order was valid and it was within jurisdiction. The moment it is found that the order was within jurisdiction and was a valid one, on the principle that the jurisdiction to make the order is based in a particular authority under the Act it may not be open to review. But the Court in seisin of a prosecution must be held to have the jurisdiction inhering in it to enquire and come to determine that there has been a lawful order. It is only on its finding that there is a lawful order that the Court would have further jurisdiction to proceed with the case. In the circumstances the conclusion on this aspect of the matter would be that the Court has power to examine the legality of the order breach whereof is the subject matter of prosecution. The case upon which Mr. Mohapatra wanted to rely were cases where the legality was not disputed or on the facts the Court came to hold that the order was within jurisdiction. If the proposition accepted in the decisions referred to by Mr. Mohapatra being of the High Courts of Calcutta, Patna and of the Judicial Commissioner of Ajmer is to the contrary, I must make it clear that I do not agree with it and I do not think such a position would correctly represent the law. 15. On my aforesaid analysis I would hold that the prosecution in this case is to fail and the conviction of the Petitioner is not warranted. This application is bound to succeed. 15. On my aforesaid analysis I would hold that the prosecution in this case is to fail and the conviction of the Petitioner is not warranted. This application is bound to succeed. 16. The Revision is allowed, the conviction is Bet aside and the Petitioner is acquitted. Fines if paid be refunded. Final Result : Allowed