Mehrotra, J. - (1.) This is an application under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the order passed by the Kanpur Development Board and the Scheme Secretary, Zone No. 4 of the said Development Board, dated 21-12-1955 purporting to be under Section 186 of the Municipalities Act, and further praying that a writ of mandamus commanding the opposite parties not to demolish the construction made by the Petitioner on plot No. 37, Block E of Nachghar Scheme, in accordance with the final plan submitted by her on 25-6-1955.
(2.) The petitioner owned house No. 58/95 in Nilwali Gali, Kanpur. After establishment of the Kanpur Development Board the site of the house and the adjoining house were acquired by the Municipal Board. The new plots were carved out and the site acquired by the Kanpur Development Board was renumbered as plot No. 37, Block E in Nachghar Scheme No. 24 and each plot was given to people on lease for building purposes. The petitioner also desired to build a construction on this plot and in April, 1955, submitted a plan to the Kanpur Development Board in accordance with the provisions of Section 178 of the Municipalities Act, On 23-6-55 she received from the Scheme Secretary of the Kanpur Development Board certain objections to the plan submitted by her. Thereupon, she again filed a reply to the objections raised by the Board. Thereafter she received no reply from the Board and she waited for more than two months and then on 7-9-55 served on the Kanpur Development Board a notice under Section 180(3) of the Municipalities Act, calling upon the Board to remove its omissions and neglect in sanctioning the plan according to law, and also gave notice to the Board that if no objection will be received by her within the next 15 days, she will presume that the Board had been pleased to sanction the proposed plan. Annexure I to the petition is the copy of the notice that she gave under Section 180(3) of the Municipalities Act. The petitioner then waited but no reply was received from the Board. Thereafter she started making constructions according to the plan. The petitioner then received a letter from the Scheme Secretary purporting to be a notice under Section 186 of the Municipalities Act, to the effect that the constructions contravened the bye-laws of the Board. On 20-10-1955 the Petitioner sent a reply to the notice of the Board and stated therein that after the expiry of the statutory period she had begun to make constructions and had completed part of the constructions, and the objections could not be raised. Thereafter on 21-12-1955 a notice was issued against the petitioner under Section 186 of the Municipalities Act asking her to demolish within seven days of the receipt of the notice two rooms of the ground floor and two rooms of the first floor. It is the validity of this notice which has been challenged by means of this writ petition.
(3.) Three points have been raised by the petitioner. Firstly, that the notice was illegal inasmuch as a notice under Section 186 of the Municipalities Act could have been issued only if the constructions made by the Petitioner were an offence under Section 185 of the Act, and as the sanction will be deemed to have been granted by virtue of Section 180(3) of the Municipalities Act after the expiry of the statutory period of notice, it cannot be said that the constructions amounted to any offence within the meaning of Section 185, Municipalities Act. Secondly, it was contended that the notice could only be issued by the Board. In the present case the notice has been issued by the Scheme Secretary. Lastly it was contended that even on the facts of the case there was no violation of any of the bye-laws of the Board, and as such the notice was invalid.;