- (1.) THE petitioner, S. M. Murad Ali Qureshi, is the owner of three houses in Sadar Bazar, Varanasi, within the territorial limits of the Cantonment Board, Varanasi. Houses Nos. 113 and 114 which appear to be adjacent to each other are on the east side of the Cantonment Road in Sadar Bazar while the third house No. 147 is situated on the west side just opposite the two houses in the east. He made an appli cation to the Cantonment Board for permis sion to connect House No. 147 with House No. 113 over the road by construction of a balcony stretching from one house to the other. The request of the petitioner was recommended by the Civil Area Committee of the Cantonment Board. The resolution of the Civil Area Committee was confirmed by the Cantonment Board. The petitioner was informed by a letter dated August 6, 1963, sent by the Executive Officer, Cantonment Board, that the con struction proposed by him had been sanc tioned on payment of Es. 103.75. In due course the payment was made and the con struction was completed. It was later dis covered by the Board that the construction set up by the petitioner was materially different from that sanctioned by the Board. Accordingly the Board issued a notice dated September 15, 1964, to the petitioner which pointed put the following deviations from the .sanctioned plan: Particulars Measurement Actual as per sanction- measurements ed plan at site 1. Width of over head passage 2. Height of the over-head pas sage from the (lowest ob struction) level 3. Purdah Wall O6' 0" 13'- 6" 08'-7" 01'-S" On both left and right side of the over, head passage. The petitioner was required by that notice which purported to be under Sec tion 185 of the Cantonments Act, 1924 to demolish the unauthorised constructions within 85 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 Command ing-in-chief, Central Command, Lucknow. That representation was treated to be an appeal and was rejected as being time bar red. 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 nouse 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 ap plication on February 21, 1966 in which Be 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 it 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 und 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 1 issued directing the respondents not interfere or demolish the balcony in dispute. (c) That such other writ, order direction be issued as the petitioner in la be entitled." Sri S. C. Khare, learned counsel for the petitioner, has urged the grounds in support of this petition. The first ground is that the notice under Section 185 of the Cantonments Act is barn by time. In paragraph 6 of the petition has been averred that the construction the balcony was completed in August 196 while the notice dated September 15, 19( which is obviously more than the period of one year mentioned in Section 185 w time barred.
(3.) HIS second contention is the Section 185 itself has no application to the facts of this case. His submission is the it is Section 187 which deals with projections on streets and that section has n been invoked by the Board. In support this contention he has relied upon a decision of the Supreme Court in Cantonment Board, Meerut v. Narain Dass, 1970 LLJ 33 = (AIR 1970 SC 105).;