Authorities must exercise their discretion properly and consider relevant evidence when making decisions under the Regulation of Building Operations Act, 1958.

A. N, Dikshita, J.

1. By means of this petition under Article 226 of the Constitution of India the petitioner has prayed for issuing a writ of certiorari for quashing the order dated 16-9-71 passed by the Prscribed Authority, Regulated Area, Nagar Mahapalika, Varanasi (hereinafter referred to as the Prescribed Authority), the order dated 15-6-1976 passed by the Commissioner, Varanasi Division/Chairman, Controlling Authority, Regulated Area, Nagar Mahapalika, Varanasi (hereinafter referred to as the Controlling Authority) and the order dated 16- 7-76 passed by the State Government marked as Annexure I, III and VI respectively to the writ petition.

2. In brief the controversy relates to a projection in premises No. D-15/53, Faridpur Varanasi. On an inspection by the Prescribed Authority it was found that certain constructions had been raised by the petitioner without necessary sanction or obtaining approval of the Prescribed Authority. A notice as contemplated under Section 10 of the Regulation of Building Operation Act (hereinafter referred to as the Act) was issued to the petitioner on 28-8-70 requiring him to show cause as to why the impugned constructions be not demolished. A reply to the show cause notice was submitted by the petitioner claiming that whatever constructions are found to be unauthorised or illegal may be compounded. The petitioner categorically submitted in the show cause notice that the projection which is the subject matter of the controversy in this writ petition was in existence from before. However, the Prescribed Authority not being satisfied with the explanation to show cause notice passed an order on 17- 1-71 calling upon the petitioner to remove the projection within 3 days. As regards other constructions which were alleged to be unauthorised and illegal the Prescribed Authority agreed for their being compounded.

Aggrieved by the order dated 17-9-71 the petitioner preferred an appeal to the Controlling Authority but the same was dismissed on 15-6-76 while holding that the projection mentioned in the order of the Prescribed Authority was newly erected and that such projection towards the road has created obstruction and must not be permitted particularly when it abuts the road.

3. Consequent to the dismissal of the appeal the petitioner preferred a revision to the State Government within the meaning of Section 41 sub-Clause (3) of the Act. The revision was also dismissed on 7-3-77 on the ground that the encroachment is on the road of the Nagar Mahapalika and shall not be compounded.

4. The case of the petitioner is that House No. B-15/53, Mohalla Faridpur, Varanasi city was constructed in the year 1946 by Sri Nityanand Rai, the vendor of the petitioner after getting the plan duly sanctioned by the Municipal Board, Varanasi which was in existence at the time. Certain repairs consequent to the purchase were carried by the petitioner and in view of the need for a room it was constructed on the 3rd storey. The petitioner received a notice under the provisions of the Act of 1958 for removing the projection which is in the nature of a verandah over the Chabutara. The duly sanctioned map of the Municipal Board was filed before the Prescribed Authority who still maintained in the order of the demolition that the projection is on road. It is further stated on behalf of the petitioner that the quinquennial assessment of the period 1961-67 shows the existence of a verandah as back as 1961. It is also set out in the petition that there was no evidence that the verandah or the projection had been newly constructed and the exparte report of the inspector was totally incorrect as it was not based on any material. In view of the orders of the authorities mentioned above the petitioner has approached this Court under Article 226 of the Constitution of India for quashing such orders.

A counter-affidavit repudiating the averments in the writ petition has been filed. A rejoinder-affidavit has also been filed. The