H.N. Seth, J.
1. By this petition under Article 226 of the Constitution Jai Ram Lal questions the validity of the order dated 26th August, 1977 (Annexure 2 to the writ petition) passed by the Controlling Authority, Rehand Region, Mirzapur, rejecting petitioner's request for compounding the offence under the U.P. Regulations of Building Operation Act, if any, committed by him and directing that certain constructions set up by the petitioner be demolished. The petitioner has also questioned the validity of the order of the State Government dated 17th December, 1977, dismissing his revision application directed against Controlling Authority's order dated 26 August, 1977.
2. The petitioner was constructing a room in the shape of open varandah 10' x 9' on the first floor of his house. One Sarwar Ali moved an application dated 5th March, 1975 before the prescribed Authority, Rehand, through the Secretary, Corruption Eradication Samiti, Rotaertsganj alleging that the petitioner had after illegally encroaching upon his land constructed a barza which interfer-ed with has privacy and free ingress and egress for the ladies of the house The Prescribed Authority called for a report from the Inspector who inter alia reported that the petitioner was erecting the verandah 10' x 9' cat the first floor of his house without permission of the Prescribed Authority and that a door therein opened towards the house of Sarwar Ali which too was contrary to rules. The Prescribed Authority issued a notice dated 1st April, 1975, to the petitioner under Section 10 of the U.P. Regulations of Building Operation Act, 1958, (hereinafter referred to as the Act) requiring him to show cause why the said room in the shape of an open verandah 10' x 9' which he was erecting on the first floor of his house, be not directed to foe demolished. The petitioner contested the said notice by filing an objection dated 10th July, 1975 on the ground that the said construction was in accordance with the plan already sanctioned by the Prescribed Authority. IN paragraph 5 of Ms objection (Annexure-C A-3 to the counter-affidavit of Sarwar Ali) he mentioned that the said construction bad, by inadvertence, been omitted to be shown in the copy of the plan which had been submitted to the Prescribed Authority for sanction. He also claimed that he did not commit any mistake deliberately. In Paragraph 5 of the objection, the petitioner went, on to state that in any case the present one was a fit case for being compounded. In the proceedings (which?), had been initiated on the application filed on behalf of Sarwar Ali wherein it was claimed that the petitioner had encroached upon his land, the petitioner obtained orders from the Prescribed Authority for a fresh inspection of his constructions. This, time the Inspector submitted a report dated 27th October, 1976, to the effect that petitioner's construction stood on the area in respect of which his plan had been sanctioned but then it encroached upon a strip of land 2'-6'' in width which, did not belong either to the petitioner or to Sarwar Ali to the extent of 8.4'. According, to the Inspector the said strip of land belonged to Nazul Department and both Sarwar Ali and the petitioner had agreed to construct a wall running in the centre of the said strip of land. Sarwar Ali had further agreed not to set up any construction under petitioner's barza.
3. Subsequently the petitioner moved an application dated 24th January, 1977 before the Commissioner Varanasi Division (Controlling Authority): praying, that in case it was found that the construction set up by him was unauthorised the case may, on payment of composition fees, be compounded, Afore-said prayer made by the petitioner was resisted by Smt. Budhni, mother of Sarwar Ali, who claimed that the matter should not be compounded as petitioner's construction encroached upon her land to the extent of 4'. The Controlling Authority called upon the Prescribed Authority submit its report. The Prescribed Authority vide its report dated 22nd August, 1977, reported that as the construction of the petitioner was an old one, it was not apt in these proceedings to investigate Smt. Budhni's (Sarwar Ali's mother) claim that the petitioner had encroached upon 4' broad strip of land; but then 2'-6' broad Barza constructed by the petitioner projected to the extent of 1'-8' on the land of Smt Budhni,
4. The Controlling Authority, after hearing counsel for the parties and perusing the report submitted by the Prescribed Authority, vide its order dated 26th August, 1977, decided that the illegal construction set up by the petitioner on the first floor should be demolished as it, in contravention of the Rules, opened towards the Courtyard of another person and had been set up on a barza which projected to the extent of 1'-8' on the land of Smt. Budhni. The Controlling Authority, therefore, directed that the barza should also be demolished and observed that even if as stated by the petitioner the barza stood over nazul land, it still was unanthorised and it was not possible to regularise the same after accepting composition fees. In the result it dismissed the application for composition made by the petitioner and directed that if after examining the records of ownership it is found that the remaining construction of the petitioner did not stand on his land, appropriate proceedings for getting the same demolished should also be initiated.
5. Aggrieved the petitioner went up in revision before the State Government which affirmed the order passed by the Controlling Authority and observed that as the constructions set up by the petitioner were unauthorised and contrary to Rules, it was not proper to accept his request for compounding the case. In the result it dismissed the revision application filed by the petitioner vide its order dated 17th December, 1977.
6. It may also be noticed at this stage that according to the counter-affidavit filed on behalf of the Prescribed Authority, after the Controlling Authority had passed the order dated 26th August, 1977, the matter was taken up for consideration by the Prescribed Authority on 29th August, 1977. As the Controlling Authority had rejected petitioner's prayer for composition, the Pre-scribed Authority held that the construction in respect of which it had issued the show cause notice to the petitioner under Section 10 of the Act, was illegal and directed it to be demolished. It further directed that formal notice for the purpose should now be issued to the petitioner. Learned counsel for the petitioner, however, claims that the said notice has not been served upon him and he never became aware of the said order and that is why he could not make any reference to it in the writ petition filed by him when he filed the revision application before the State Government which revision application was ultimately dismissed on 17th December, 1977.
7. The petitioner has now approached this Court for relief under Article 226 of the Constitution. He contends that the authorities constituted under the Act have, while considering the question as to whether the construction set up by him should be directed to be demolished and whether his request for compounding the offence should be accepted, been swayed by irrelevant consideration and as such the impugned orders deserve to be quashed.
8. A perusal of the reply (Annexure X. A. 3 to the counter affidavit filed by Sarwar Ali) given by the petitioner to the show cause notice dated 1st April, 1975, issued by the Prescribed Authority, shows that after offering an explanation with regard to the circumstances in which he had proceeded to make the construction objected to in the notice, he went on to pray that in case the construction is found to be illegal it should be compounded and that he was prepared to do so. It appears that the petitioner made a request for compounding under the impression that in case the authorities accepted the same and charged him the composition fees, any illegality in setting up the constructions objected to in the notice would be cured and the said construction would stand regularized and that in such an event no question of directing its demolition would remain. Indeed learned counsel for the petitioner also proceeded to make a submission before me on the said basis. It appears that the Controlling Authority as well as the State Government, as is evident from Annexures 4 and 6 to the writ petition, also proceeded to deal with the matter on the basis that the effect of compounding would be to regularise the illegal construction set up by the petitioner. In my opinion, the petitioner as well as the authorities under the Act have, in this regard, been labouring under a misconception.
9. The scheme underlying the Act is that once an area has been declared to be regulated area, any development of the site or erection, re-erection or any substantial change in any building within the area is to take place only in accordance with the Regulations made under the Act and that too after obtaining permission of the Prescribed Authority. Any person who constructs a building either in contravention of the regulations framed under the Act or without obtaining permission of the Prescribed Authority or in derogation of the conditions mentioned in such permission, exposes himself to following types of action:--
1. Criminal prosecution under Section 9 of the Act which lays down that any person who undertakes or carries out development of any site or erects, re-erects or makes any material change in any building or makes or extends any excavation or lays out any means of access to a road 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, or in violation of any action taken under Sub-section (2) of Section 10 to stop the erection or re-erection of any building or the execution of any work shall be punishable with fine which may extent to ten thousand rupees and in the case of continuing offence, with a further fine which may extent to five hundred rupees for every day during which such offence continues after conviction for the first commission of the offence, and
2. Proceedings for demolition of such construction under Section 10 (1) of the Act which 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 fit 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',
10. It is apparent that aforementioned provisions for two classes of actions have been made with a view to achieve two different objects and they operate in different and distinct fields. Whereas the object underlying the provisions contained in Section 9 of the Act is to punish the persons for making constructions in the regulated area either without obtaining permission of the Prescribed Authority or in contravention of the Regulations framed under the Act, that underlying Section 10 is to have such objectionable constructions actually removed. In my opinion the Act does not contemplate either of the two classes of proceedings to have any direct effect on the other end that the two proceedings operate in different fields and are to take place independently of each other The prosecution envisaged by Section 9 of the Act can as laid down in Section 12 of the Act take place only with the previous sanction of the Prescribed Authority. 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 without prejudice to the provisions contained in Section 9 of the Act make an order directing that such erection or re-erection be demolished. Both Section 9 and Section 10 of the Act give a certain amount of discretion to the Prescribed Authority. There can be cases where the Prescribed Authority may not sanction prosecution but it may direct demolition of objectionable constructions and vice versa. Likewise in certain cases where prescribed Authority finds the breach to be of a very technical nature, it ma neither sanction prosecution nor direct demolitation of the objectionable construction.
11. Section 12(2) of the Act when it provides that the prescribed Authority may and if required by the Controlling Authority shall compound any offence punishable under the Act either before or after the institution of the prosecution, on such terms (which may include payment of a sum of money by way of composition for the offence) as it or the Controlling Authority, as the case may be, thinks fit, operates in the same field in which the provisions contained in Section 9 of the Act operate. The effect of composition of an offence under Section 12(2) merely is that the concerned person is absolved of his criminal liability. It has no direct bearing in respect of or on the proceedings under Section 10 of the Act. The request made by the petitioner for composition of the offence under Section 12(2) of the Act and the cause shown by him for not taking any actions by way of demolition of the constructions objected to by the Prescribed Authority, had, therefore, to be dealt with by it separately. It may be that in a particular case somewhat similar consideration may weight with the authorities in sanctioning or not sanctioning the prosecution, compounding or not compounding the offence or in accepting or rejecting plea of the concerned person for not taking steps to demolish the objectionable construction, but then it does not as a matter of law, follow that merely because the authorities decided not to sanction the prosecution and to compound the offence under Section 12 of the Act, the objectionable constructions get authomatically regularised and no action in respect thereof can be taken under Section 10 of the Act. Likewise merely because the authorities decide to prosecute and are unable to see their way to compound the offence, it does not follow that they are bound to reject the cause shown by the concerned person against the notice for demolition issued under Section 10 of the Act.
12. Although, both under Sections 12 and 10 of the Act certain amount of discretion has been given to the authorities regarding sanctioning of prosecutions, composition of offences and issuing of directions for demolition of objectionable constructions yet the said discretion is not arbitrary. It is well settled that said discretion will have to be exercised by the concerned authorities in the light of the object of the enactment.
13. Coming now to the contrversy in the instant case, I find that petitioner had vide his appliation dated 24th January, 1977 (Annexure-3 to the counter-affidavit filed on behalf of the Prescribed Authority) requested the Controlling Authority in case it came to the conclusion that the petitioner had committed an offence under the Act, compound the same. A perusal of the order passed by the Controlling Authority dated 26th August, 1977 (Annexure-2 to the Writ Petition) show that it rejected petitioner's request for compounding the offence and decided to have petitioner's contructions demolished for following reasons:--
1. The constructions set up by the petitioner on the first floor of the house deserved to be demolished as it, in contravention of the Rules opened towards the land of Smt. Budhni.
2. The said contructions stood over a barza which illegally overhang the land of Smt. Budhni to the extent of 1'-8' and had, therefore, to be demolished.
3. Even if the contruction, as claimed by the petitioner, stood on nazul land it still would be illegal and will have to be demolished as it will not be possible to regularise the same by accepting composition fees.
The authority further observed that the papers produced in the case showed that the objectionable contructions did not stand on petitioner's own land and that appropriate proceedings to have the same demolished should be taken.
14. The order dated 26th August, 1977 passed by the Controlling Authority, in my opinion, cannot be sustained. In the first place it appears that the Controlling Authority has dealt with the prayer made by the petitioner on the foorting that acceptance of the petitioner's plea with regard to compounding of the of-fence would result in automatically regularising the objectionable construction set up by the petitioner. As already explained, the Controlling Authority is clearly in the wrong in taking this view. Even if the Controlling Authority had permitted compounding of the offence it would not have direct1y affected any proceedings that were being taken by the Prescribed Authority under Section 10, of the Act. The Controlling Authority did not apply its mind to the question whether having regand to the object sought to be achieved by the enactment the nature of the offence committed by the petitioner was such that it will not be desirable to launch a criminal prosecution against him. One of the grounds mentioned in the order for not permitting compounding of the offence, if any, committed by the petitioner was that the objectionable constructions, in contravention of the Rules opened towards the land of Smt. Budhni. Learned counsel for the respondents could not bring to my notice any rule or regulation which prohibits setting up of construction in a regulated area that opens towards the land of someone else. This reason given by the Controlling Authority for not considering petitioner's prayer for compounding the offence, therefore, does not appear to be apt.
15. So far as Controlling Authority's direction in respect of the barza which according to it, overhangs the land of Smt. Budhni to the extent of 1'-8' is con-cerned, it is significant to note that under Section 10 of the Act the praceed-ings for demolition of an objectionable construction are to be taken by the Prescribed Authority and not by the Controlling Authority. The Controlling Authority cannot, while (dealing with an application praying for a direction to the Prescribed Authority to compound an offence, exercise any power under Section 10 of the Act and direct damolition of any construction which in its opinion is not authorised. Moreover, the Controlling Authority could not have any jurisdiction to direct demolition of the barza specially when the petitioner was at no stage called upon to show cause why the same may not be directed to be demolisted. The observation made by the Controlling Authority that the said constructions were illegal as even according to petitioner's own case they stood on nazul land also does not appear to be justified. The case of the petitioner throughout has been that the said construction stood on his own land. Any submission made by him that Budhni could not object to compounding of the offence as the objectionable construction, if at all, stood on nazul land, does not mean that the petitioner had admitted that they encroached upon nazul land. Likewise the direction made by the Controlling Authority for taking praceedings for demolition of existing constructions of the petitioner also appears to he without jursidiction.
16. I may at this stage point out that the Act inowhere tenables the authorities under the Act to investigate any dispute between private parties with regard to the land over which the constructions stand or sure to be sanctioned or permitted. Any application moved for seeking permission for setting up of construction in a regulated area has to be dealt with under Section 7 of the Act Sub-section (2-A) of Section 7 lists as many as seven grounds (enumerated as (a) to (g)) on which alone the Prescribed Authority can refuse permission for erection or re-erection of a building, whereas Clause (d) of Sub-section (2-A) lays down that erection of proposed building shall not he sanctioned if its construction would result in encroachment upon any public premises as defined in U. P. Public Premises (Eviction of Unauthorised Occupants) Act. 1972, it nowhere lays down that any such application is to be rejected for the reason that such construction would result in encroachment upon land be-longing to some private person. It may be that in view of the provisions contained in Clause (d) of Sub-section (2-A) of Section 7 of the Act the concerned authority can enquire into and adjudicate on the question whether the objectionable (Construction stands on nazul land, but than it has not been tenateled to de-cide or adjudicate upon private disputes with regard to title in respect of the land on which the objectiaonable construction stands. A fortiari the authorities constituted under the Act will also, not be able to direct demolition of petitioner's constructions merely for the reason that they stand on land belonging to some other private individual.
17. While passing orders dated 17th Dec., 1977, (Annexure-4 to the writ petition), rejecting petitioner's revision-application the State Government has adopted the entire reasoning of the Controlling Authority. The said order, therefore, suffers from the same defects with which the order dated 26th August, 1977 (Annexure-2 to the writ petition) passed by the Controlling Authority suffers.
18. By its order dated 29th August, 1977 (Annexure-5 to the counter affidavit filed on behalf of the Prescribed Authority) the Prescribed Authority has rejected the cause shown by the petitioner to the notice for demolition issued by it under Section 10 of the Act on 1st of April, 1975, merely on the ground that his request for compounding the offence has already been rejected by the Controlling Authority, As already explained, the Prescribed Authority is clearly wrong in taking this view and notwithstanding the fact that petitioner's request for compounding of the offence committed by him had been rejected the Prescribed Authority had to consider the cause shown by the petitioner on merits and to decide for itself as to whether having regard to the objects sought to be achieved by the enactment the present one was a fit case wherein it would exercise its discretion either in directing or in not directing demolition of the objectionable constructions. The order dated 29th August, 1977, passed by the Prescribed Authority, therefore, stands vitiated.
19. I find that the order dated 17th December, 1977, passed by the State Government indicates that the petitioner had already submitted a revised plan for construction of the room on the first floor for being sanctioned by the Prescribed Authority. In case petitioner' request for sanctioning the revised plan containing the objectionable constructions on the first floor is accepted, that would certainly be a very material factor to be taken into consideration by the Prescribed Authority in exercising Its discretion not to direct its demolition. Of course in case petitioner's request to sanction the revised plan is legally rejected, the Prescribed Authority can legitimately exercise its discretion to direct its demolition.
20. In the result I find that neither has the request made by the petitioner to the Controlling Authority, seeking a direction to the Prescribed Authority to compound the offence, if any, committed by him, nor has the cause shown by him in response to the notice dated 1st April, 1975 issued to him by the Prescribed Authority under Section 10 of the Act been properly dealt with by the Controlling and the Prescribed Authority.
21. I, therefore, allow this petition and quash the order dated 26th August, 1977, passed by the Controlling Authority as also that dated 17th December, 1977, passed by the State Government. I also quash the order dated 29th August, 1977, passed by the Prescribed Authority and direct the Prescribed Authority to consider the cause shown by the petitioner in respect to the notice dated 1st April. 1975 issued by it under Section 10 of the Act as also the Controlling Authority to deal with petitioner's application dated 24th January, 1977 afresh and in accordance with law. In the circumstances of the case I direct the parties to bear their own costs.