R.L. Gulati, J.
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 application to the Cantonment Board for permission 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 re-commended 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 construction proposed by him had been sanctioned on payment of Rs. 103.75, In due course the payment was made and the construction was completed. It was later discovered 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 out the following deviations from the sanctioned plan :
Measurement asper sanctioned plan
Actualmeasurementsat site1.Width of overhead passageO6'_0'08'-7'2.Height of the over-head passage fromthe (lowest obstruction) level18'-6'12'-9'3.Purdah WallX01'- 3'on both left and right side of the overheadpassage.
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 e admitted minor deviations from the sanctioned plan and requested that thecase 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 September 15, 1964 which is obviously more than the period of one year mentioned in Section 185 was time barred.
4. His second contention is that Section 185 itself has no application to the facts of this case. His submission is that it is Section 187 which deals with projections on streets and that section has not been invoked by the Board. In support of this contention he has relied upon a decision of the Supreme Court in Cantonment Board, Meerut v. Narain Dass, 1970 All LJ 33 = (AIR 1970 SC 105).
5. After having heard learned counsel for the parties, I am of opinion that the second contention of Sri Khare is correct. Section 185 applies where any erection or re-erection is an offence under Section 184. Section 184 in turn refers to Section 181. None of the clauses of Section 181 apply to the facts of the present case. Section 187(1) reads:
'No owner or occupier of any building in a Cantonment shall, without the permission in writing of the Board, add to or place against or in front of the building any projection or structure overhanging projecting into, or encroaching on, any street or any drain, sewer or aqueduct therein.'
The instant case obviously falls under Section 187 because the construction complained of is a projection which stretches from east to west covering the entire street. It is in fact an over-head bridge over the street. As pointed out by the Supreme Court in the case referred to above, Section 185 applies to constructions over the land belonging to a private person, while Section 187 applies to constructions or projections over the land belonging to the Cantonment, like a public street.
6. One result that follows from this position is that whereas there is a period of one year prescribed in Section 185 for taking action against an unauthorised construction, there is no period prescribed for a similar action with regard to the unauthorised projections on a street. It follows therefore that the plea of limitation raised by the learned counsel for the petitioner is not open to him.
7. The Supreme Court in the case of 1970 All LJ 33 = (AIR 1970 SC 105) (Supra) has laid down this proposition and has observed that while there is a period of limitation with regard to the constructions raised upon private land, no period of limitation has been prescribed in cases involving encroachment upon the land belonging to the Cantonment for reasons of public policy.
8. The only other contention which remains to be disposed of is as to whether the impugned notice can be struck down and the Board can be restrained from taking any action against the petitioner for the demolition of the unauthorised constructions merely on the ground that the notice purports to have been issued under Section 185 and does not refer to Section 187.
9. It has not been disputed by the learned counsel for the petitioner that the Board is empowered to take action against an unauthorised construction falling under Section 187 of the Cantonments Act. It is trite law that 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. The validity of an order should be judged on a consideration of its substance and not of its form. The principle is that the Court must ascribe the act of a public servant to an actual existing authority under which it could act validly rather than to one under which it would be void. This proposition has been clearly laid down by the Supreme Court in Lekhraj Sathramdas Lalvani v. Dy. Custodian Bombay, AIR 1966 SC 334.
10. The balcony is not only at variance with the plan sanctioned by the Board but in fact the construction of the balcony which covers the entire width of the street is forbidden under bye-law No. 13 of the bye-laws framed by the Cantonment Board. That bye-law reads as under:--
'13. No balcony, varandah, chajja or other projections shall be allowed from any upper storey of a building over a street which has a width of less than 50 feet at any point in front of the existing line of buildings.'
In paragraph 20 of the counter-affidavit it has been stated that the width of the street is much less than 50 feet and thus the Cantonment Board was precluded from sanctioning the construction of the balcony. In these circumstances the construction of theoverhead passage or bridge is clearly unauthorised because the Board itself did not have any jurisdiction to grant permission for the construction of such an overhead passage.
11. That being the position, the action of the Board seeking to demolish the balcony is perfectly justified both on facts and in law.
12. The petition accordingly fails and is dismissed with costs.