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1971 Supreme(All) 44
Allahbad High Court
R.L.GULATI
S.M. Murad Ali Qureshi - Appellant
Versus
Cantonment Board, Varanasi - Respondent
Decided On : 02/05/1971
S.C. Khare and Sidhashwari Pd., for Petitioner; Standing Counsel, K.P. Srivastava and S.N. Kacker, for Respondents.
Headnote:
CANTONMENTS ACT, 1924 - SECTIONS 185, 187 - UNAUTHORISED CONSTRUCTION - NOTICE UNDER SECTION 185 - LIMITATION - APPLICABILITY OF SECTION 187 - VALIDITY OF ORDER PASSED UNDER WRONG PROVISION - BYE-LAW 13 OF CANTONMENT BOARD BYE-LAWS - CONSTRUCTION OF BALCONY OVER STREET - PROHIBITION.
Fact of the Case:
Petitioner constructed a balcony over a street connecting three of his houses in Sadar Bazar, Varanasi, which deviated from the plan sanctioned by the Cantonment Board. The Board issued a notice under Section 185 of the Cantonments Act, 1924, requiring the petitioner to demolish the unauthorized construction within 35 days, failing which action under Section 256 of the Act would be taken. The petitioner challenged the notice, arguing that it was barred by time and that Section 185 did not apply to the case.
Finding of the Court:
The court held that Section 185 was not applicable to the case as the construction of the balcony fell under Section 187 of the Act, which deals with projections on streets. The court further held that the plea of limitation raised by the petitioner was not open to him as there was no period of limitation prescribed for unauthorized projections on a street. The court also held that the notice could not be struck down merely because it purported to be issued under Section 185 instead of Section 187, as the Board had the power to take action against the unauthorized construction under Section 187.
Issues: 1. Whether the notice under Section 185 of the Cantonments Act was barred by time. 2. Whether Section 185 applied to the facts of the case. 3. Whether the impugned notice could be struck down and the Board restrained from taking action against the petitioner merely because the notice purported to have been issued under Section 185 and not Section 187.
Ratio Decidendi: 1. Section 185 applies to constructions over land belonging to a private person, while Section 187 applies to constructions or projections over land belonging to the Cantonment, like a public street. 2. There is a period of limitation of one year prescribed in Section 185 for taking action against an unauthorized construction, but no period of limitation is prescribed for similar action with regard to unauthorized projections on a street. 3. An order passed by a competent authority cannot fail merely because it purports to be made under a wrong provision, if it can be shown to be within its power to pass such an order under any other rule or provision.
Final Decision: The petition was dismissed with costs.
Particulars Measurement as per sanctioned plan Actual measurements at site
1. Width of over-head passage 06'- 0" 08'- 7"
2. Height of the over-head passage from the (lowest obstruction) level
13'-6" 12'-9"
3. Purdah Wall X 01'-3" On both left and right side of the over-head passage.
The petitioner was required by that notice which purported to be under Section 185 of the Cantonments Act, 1924 to demolish the unauthorised constructions within 35 days of the receipt of the notice failing which action under Section 256 of the Act was threatened. The petitioner made a representation against the notice which was finally rejected. The petitioner then sent a representation dated October 11, 1965, to the General Officer Commanding-in-chief, Central Command, Lucknow. That representation was treated to be an appeal and was rejected as being time barred. The petitioner thereafter submitted another application which too was rejected by the General Officer Commanding by his order dated January 15, 1966. Finally the Cantonment Board issued a notice dated February 14, 1966 reading as under :
"As decided by the Board under its Resolution No. 15 dated 1-2-1966 please demolish the unauthorised construction of overhanging projection over the street connecting house Nos. 147, 113 and 114 in Sadar Bazar, Varanasi Cantt. which varies from the sanctioned plan. In case the said unauthorised construction is not demolished by you by 25-2-1966 at the latest the same will be demolished through the agency of the Cantt. Board at your risk and costs".
2. The petitioner then made an application on February 21, 1966 in which he admitted minor deviations from the sanctioned plan and requested that the case be compounded. This request of the petitioner was also turned down by the Board. The petitioner has now filed this petition under Article 226 of the Constitution with the following prayers :-
"(a) that a writ in the nature of certiorari be issued quashing the notice under Sections 185 and 256 of the Cantonments Act as well as the resolutions of the Cantonment Board.
(b) That a writ of mandamus, order or direction in the nature of mandamus be issued directing the respondents not to interfere or demolish the balcony in dispute.
(c) That such other writ, order or direction be issued as the petitioner in law be entitled."
3. Sri S. C. Khare, learned counsel for the petitioner, has urged three grounds in support of this petition. The first ground is that the notice under Section 185 of the Cantonments Act is barred by time. In paragraph 6 of the petition it has been averred that the construction of the balcony was completed in August 1963, while the notice dated Septem
