A.N. Dikshita, J.@mdashBy 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 Prescribed 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, HI 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 u/s 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 Prescribed1 Authority agreed for their being compounded.
3. 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.
4. 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.
5. 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 duty 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.
6. A counter-affidavit repudiating the averments in the writ petition has been filed. A rejoinder-affidavit has also been filed. The case of the
Respondents is that the constructions on the ground-floor, first-floor and second-floor has been raised without necessary sanction or permission of
the authorities. In paragraph 6 of the counter-affidavit it has been mentioned that projection is over the road of Nagar Mahapalika hence the same
cannot be compounded. It has also been alleged that the plan submitted by the petitioner before the Prescribed Authority was not a sanctioned
plan and as such could not be relied upon.
7. Heard counsel for the parties.
8. Learned Counsel for the petitioner has submitted that the Respondents misappreciated the facts and manifestly erred in law inasmuch as the plan
related to the period 1946 when Nagar Mahapalika was not in existence. Further the Respondents misconstrued that the projection is on the road.
The other constructions of the petitioner though unauthorised are sought to be compounded. A perusal of the order of the Controlling Authority
reveals that the projection towards the road has created obstruction and must not be permitted particularly when that abuts the road- In the
counter-affidavit it is stated in para 6 reproduced above that the projection is over the road of Nagar Mahapalika hence the same cannot be
compounded.
9. Learned Counsel for the petitioner during hearing produced two photographs of the building which were filed as annexures to the supplementary
affidavit. Learned Standing Counsel submitted that he has not to file any counter-affidavit. The scheme underlying the Act is that once an area has
been declared to be a regulated area any erection or re-erection or substantial change in any building is to take place in accordance with the.
regulations made under the Act and that too after obtaining the permission of the Prescribed Authority and in the event of any construction being
made without obtaining permission, or in derogation of the conditions mentioned in such condition suitable action has to be taken by the authorities,
Section 10(1) of the Act runs thus;
10. (1) Where the erection or re-erection on or material change in any building has been commenced or is being carried on or has been completed
in contravention of any regulation made under this Act or without the permission referred to in Section 6 or in contravention of any condition
subject to which such permission has been granted, the Prescribed Authority may, without prejudice to the provision of Section 9 make an order
directing that such erection, re-erection or material change it shall be demolished by the owner thereof within such period not exceeding two
months as may be specified in the order, and on the failure of the owner to comply with the order the Prescribed Authority may itself through the
local authority concerned or through such other agency as it thinks St cause the erection, re-erection or material change to be demolished and the
expenses of such demolition shall be recoverable from the owner in the same manner as an arrears of land revenue. Provided that no such order
shall be made unless the owner has been given an opportunity of being heard.
It is thus clear that Section 10 of the Act provides that when an erection or re-erection of a building is carried out in contravention of the Regulation
or without or in contravention of the conditions of the permission, the Prescribed Authority may make an order directing such erection or re-
erection to bs demolished.
10. Section 12(2) of the Act provides that the Prescribed Authority By and if required by the Controlling Authority shall compound any offence
punishable under the the Act on such terms inclusive of the payment of sum of money by way of compounding fee. The powers u/s 12 as well as
u/s 10 are distinct with each other. However, it is well-settled that both u/s 12 and Section 10 of the Act certain amount of discretion has been
given to the authorities. Such a discretion has to be exercised in the light of the subject of the enactment. The Prescribed Authority as well as the
Controlling Authority and the State Government have failed to exercise discretion so as to achieve the intent of the Legislation. Reasons have been
set forth by the authorities concerned which are at variance with each other. There is no iota of evidence that such projections towards the road
had created obstructions and particularly when it abuts, the road. This view of the Controlling authority is untenable in view of the evidence on
record. Likewise the State Government in the absence of any cogent evidence came to the conclusion that the illegal constructions are on the road
of Nagar Mahapalika and as such cannot be compounded.
11. During the bearing no cogent reason has. been given repelling the contention of the petitioner that the projection was not in existence earlier in
the teeth of the plan that was placed before the Respondents. A perusal of the photograph clearly indicates that neither the projection abuts the
road nor does it cause any obstruction. Adjacent houses also bear similar projection but whether any action has been taken against them is not
revealing.
12. In view of the above the petition deserves to succeed and the impugned orders are liable to be quashed.
13. In the result the petition is allowed and the orders dated 16-9-71, 15-6-76 and 16-7-76 passed by the Prescribed Authority, Commissioner,
Varanasi Division/Chairman, Controlling Authority, Regulated Area and the State Government respectively are hereby quashed. Costs are made
easy.