Andhra HC (Pre-Telangana)
Mumtaz Khambati vs Secunderabad Cantonment Board And ... on 6 August, 1999
Equivalent citations: 1999(5)ALD369, 1999(5)ALT264
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER
Goda Raghuram, J
1. Mrs. Mumtaz T. Khambati has filed this appeal against the judgment dated 14-10-1987 in Writ Petition No.37589 of 1982. The appellant is the writ petitioner. Parties are referred to as arrayed in the writ petition.
2. The writ petition has been filed challenging the proceedings of the 1st respondent dated 15-10-1981 and that of the 3rd respondent dated 26-4-1982. The facts leading to the filing of the writ petition may briefly be stated as follows:
(a) By an application dated 19-9-1980 the petitioner submitted plans requesting sanction of the Cantonment Board (for short 'the Board') for construction of a multi-storied building after demolishing the existing old building. By another letter dated 11-11-1980 the petitioner addressed the Board stating that no communication has been received in respect of her request for sanction, that this intimation is being given under Section 181(6) of the Cantonments Act, 1924 (for short, 'the Act') and that if no intimation is received for a further period of 15 days, the Board shall be deemed to have given sanction unconditionally to the said erection as per the provisions of the Act. By another letter dated 2-3-1981 the petitioner addressed the Board informing that she is proceeding with the construction as per the plans submitted in view of having secured permission by efflux of time in the light of the earlier letter (termed as statutory notice dated 11-11-1980).
(b) The Board in its proceedings dated 6-2-1981 noted that the petitioner's site is an area classified as B-3 held on old grant terms under the management of the Military Estate Officer, A.P. Cirlce, Secunderabad, (MEO), that the MEO has vide his letter dated 27-10-1980 declined permission for reconstruction in the said land. By a notice dated 16-3-1981 the petitioner's Counsel addressed the Board acknowledging the return of the plans and intimation of the Board's resolution dated 6-2-1981 referred to above, but, however, stating that in view of the deemed sanction, the petitioner is proceeding with the construction.
(c) While so, the MEO filed OS. 1257 of 1981 on the file of VII Asst. Judge, City Civil Court, Hyderabad, seeking permanent injunction against the petitioner from making any construction and for a direction to demolish the constructions already made. The suit was dismissed on 5-10-1988 and the appeal AS 85 of 1989 filed against the said decision, was also dismissed.
(d) Meanwhile, the Board on 15-10-1981 issued a notice to the petitioner under Section 185(1) of the Act intimating the petitioner about the unauthorised construction and directing her to demolish and remove the unauthorised works within 30 days from the date of receipt of the notice and report compliance. The petitioner preferred an appeal to the 3rd respondent against the notice dated 15-10-1981, under Section 274 of the Act. This appeal was dismissed by the 3rd respondent by his orders dated 26-4-1982.
3. The writ petition and the developments thereafter:
(a) The petitioner filed the writ petition seeking invalidation of the 1st respondent's notice under Section 186(1) dated 15-10-1981, and the appellate orders dated 26-4-1982.
(b) The Board filed OS.459 of 1983 before the Additional Chief Judge, City Civil Court, seeking mandatory injunction on the petitioner to demolish and remove the unauthorised constructions and for a permanent injunction to restrain her from making any further constructions endangering the security and safety of aircraft operations.
(c) By the judgment under appeal dated 14-10-1987 the writ petition was disposed of. The learned single Judge concluded that the petitioner has not obtained, in law, any deemed unconditional sanction for the plans submitted by her by virtue of the provisions of the Act, in the circumstances recorded in the judgment, however according liberty to the petitioner to approach the Board for compounding in accordance with the provisions of Section 185 of the Act.
(d) By judgment dated 10-2-1995, OS.459 of 1983 instituted by the Board was dismissed. The civil Court noticed the judgment of this Court in the writ petition and on an analysis of the provisions of the Act held that the suit was not maintainable as the Board has statutory powers under the Act to take steps to remove the unauthorised constructions and to demolish the same.
(e) Against the said judgment and decree, the Board preferred CCA SR No.39120 of 1995 dated 7-8-1995, before this Court.
4. In CMP No.879 of 1997 the Board made an application in the above appeal for dispensing with the LS Memo and T and P charges. By the order of this Court dated 5-2-1997 the application was considered subject to the Board filing typed copies of the evidence and pleadings, after notice to the petitioner. On 23-3-1999 the Registry of this Court put up a note stating that the orders of this dated 5-2-1997 supra, have not been complied with by the Board. This Court recording the absence of the Counsel for the Board, on 23-2-1999 dismissed the CCCA for non-prosecution and directed the present appeal to be listed for hearing.
5. The learned single Judge after recording the chronology of events relating to the petitioner's application for sanction of permission and leading to its rejection by the Board's resolution dated 6-2-1981, the notice of demolition under Section. 185(1) of the Act, dated 15-10-1981 and the rejection of the appeal thereon by the proceedings of the 3rd respondent dated 26-4-1982, held that no deemed sanction in terms of Section 181(6) could be said to have" come into operation and that consequently the constructions made by the petitioner were unauthorised and illegal. Since we shall be dealing with this aspect of the matter in this appeal, further details of the learned single Judge's reasons are omitted in this narrative.
6. At the hearing of the appeal Sri Y. Ratnakar, learned Counsel for the petitioner assailed the proceedings impugned in the writ petition as also the judgment under appeal on the following three grounds:
(i) that there is no material to show that the land of the petitioner is under the management of MEO which fact alone would entitle the Board to refer the application and plans of the petitioner to the 2nd respondent;
(ii) that no notice has been issued to the petitioner before the matter has been referred to the 2nd respondent by the 1st respondent, that such a notice is impliedly warranted by the provisions of Section 181(3) of the Act having regard to the rights of the appellant to a deemed sanction under Section 181(6) of the Act;
(iii) that the interpretation put by the learned single Judge on Sections 179, 180 and 181 of the Act, are prejudicial to the rights of an applicant and render the salutary provisions (of deemed sanction) in Section 181(6) of the Act, nugatory.
7. The following points thus arise for consideration :
1. Whether the land of the petitioner is under the management of the MEO within the meaning of the provisions of Section 181 of the Act.
2. Whether a requirement of a notice to the petitioner prior to the referral of the petitioner's application to the MEO and a communication of the MEO's report thereon to the Board, to the petitioner is an implied requirement of the provisions of Section 181 of the Act.
3. Whether the petitioner is deemed to have been accorded an unconditional sanction for the erection of a building proposed by her by application dated 19-9-1980.
Point No. 1:
8. Respecting the contentions on the first aspect of the matter the factual substratum is as under:
The petitioner by a representation dated 7-12-1971 applied to the MEO seeking a lease in respect of the property in Sy.No.GLR Sy.663 (H.NO.211) Mudfort, Secunderabad, in an extent of 1392 Sq.Yds. In the said representation, stating that she holds the property on old grant terms, applied for a lease for residential/commercial purposes stating that the area if any, of which the Government may be prepared to grant a lease in Schedule VIII and the amount of premium and rent may please be communicated to her and that in the event of Government offering her a lease and her accepting the same, she was willing to surrender the present grant before execution of the lease. The said representation also duly noted the legal position as understood by the petitioner that the application does not carry with it any assurance that such a lease would be given or that a grant of the application would per se amount to sanction to erect a building and that any such sanction must be sought from the Board in accordance with the provisions of the Act. This application made to the MEO coupled with the entries in the General Land Register prepared in terms of Rule 3 of the Cantonment Land Administration Rules, 1937 (these Rules have been made in exercise of powers under Section 280 of the Act) (for short, 'the Rules') would indicate that the petitioner's property, (the constructions wherein are the subject-matter of this litigation) is classified as B3 land in terms of Rule 6 of the Rules. Recitals in the General Land Register also disclose that the properly is managed by the MEO. The petitioner also applied to the MEO by her letter dated 7-12-1971. Thus, the property falls within the management of the MEO. This position has not rationally be disputed in the present lis and at any rate cannot form the subject-matter of an adjudication under Article 226 of the Constitution involving as it does mixed questions of fact and law. In the circumstances the land of the petitioner needs to be held as land which is under the management of the MEO within the meaning of the provisions of Section 181 ofthe Act. The point is answered accordingly.
Point No,2:
9. We have already given the chronology of events from the petitioner's application dated 19-9-1980 to the rejection thereof by the Board's proceedings dated 6-2-1981, the notice under Section 185(1) of the Act dated 15-10-1980 and the rejection of the petitioner's appeal thereon by the 3rd respondent's proceedings dated 26-4-1982.
10. Learned Counsel for the appellant has contended at the hearing of the appeal that if requirement of a notice to the petitioner before the Board refers the application for sanction to the MEO to ascertain his objections for any erection or re-erection, is not implied as a requirement under Section 181(3) of the Act and further if it is not implied that the MEOs report to the Board made pursuant to such referal to him, ought to be communicated to the petitioner, the petitioner would be seriously prejudiced and the salutary provisions of Section 181(6) (deemed sanction) of the Act would be rendered nugatory. We find no force in the said submission. The power of the Board under Section 181(3) to refer the matter to the MEO in respect of the land which is under the latter's management, is a statutory power and is one coupled with a duty. Whenever, as in this case, the land is under the management of the MEO, the Board is mandated to refer an application for erection or re-erection of a building thereon to the MEO. Such referral shall have to be made by the Board within a reasonable time of the receipt by it of any such application. The Board cannot on the mere pretext of the absence of any prescription of time in the statute for the said purpose keep the application of the petitioner with itself for unreasonably long period of time without making such a referral. On such referral the provisions of Section 181(3) of the Act enjoin the MEO to return the application or the petitioner together with his report thereon to the Board within 30 days after it has been received by him. Section 181(5) ordains the Board, if it decides to refuse the sanction, to communicate in writing the reasons for such refusal to the petitioner.
11. The provisions of Section 181(6) of the Act are as under ;
"181.Power of Board to sanction or refuse :
..............................
(6) Where the Board neglects or omits, for one month after the receipt of a valid notice, to made and to deliver to the person who has given the notice any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or re-erection, as the case may be, unconditionally :
Provided that, in any case to which the provisions of the sub-section (3) apply, the period of one month herein specified shall be reckoned from the date on which the Board has received the report referred to in that sub-section."
12. On a holistic analysis of the provisions of the Act and in particular Sections 179 and 180 and the various subsections of Section 181, no deemed sanction in terms of Section 181(6) can be said to come into existence without reference to the enlargement of time contained in the proviso to Section 181(6). These provisions are, in our view, intended to safeguard the properties situate in a Cantonment area, in particular lands which are under the management of the MEO. The MEO performs under the provisions of the Act, crucial functions of applying his mind to any permission sought for erection or re-erection in the light of any objections to such proposal that the Government may have. Since the lands in the Cantonment area, in particular those which are under the management of the MEO, may have a potential of effecting defence operations or may be required for a plurality of emerging defence requirements (in the case on hand the constructions were determined as inconsistent with the safety requirements of the military air port), the deemed sanction and the time frame for the coming into operation of such a sanction vouchsafed in the provisions of Section 181(6) in respect of the lands otherwise than under the management of the MEO, cannot automatically be applied to lands under the management of the MEO, for which a special statutory provision has been made in proviso to Section 181(6). Such incovenience or prejudice as may ensure to the holders of any such lands is an inconvenience which is in the larger public interest, to wit, in the interest of safety and efficacy of the defence operations. Accommodating the possibility of such hardship of a private individual and putting a narrow construction on the provisions of Section 181 of the Act would besides rendering the statutory intent contained in Section 181(6) proviso obsolete, would be productive of immense and incalculable detriment to the public interest in general and the legitimate needs of the defence forces in particular. Applicable principles of statutory interpretation proscribe any such interpretation -- Jura Publica anteferanda privatis -- In the content we note the observations of Lord Reid in A.G. v. Tinus Newspapers Ltd., (1974) AC 274 at 296 --"There must be a balancing of relevant considerations." and of Lord Denning in Wallersteiner v. Moir, (1974) 1 WLR.991 at 1005 - "The most weighty consideration is the public interest."
13. We are of the considered view that to obviate any existing hardship to any application of permission for such erection or re-erection of building, the Board should be required to communicate the report of the MEO received by it, to the applicant of such permission, so as to enable the applicant to avail of the opportunity of making a written communication to the Board as envisaged in Section 181(6) of the Act. Since the phraseology of the statutory provisions does not in terms posit any such requirement and in the circumstances of no such requirement having been enunciated in any earlier decision, which has been brought to our notice, such a requirement shall be obligated on the respondent-Cantonment Board prospectively from the date of this decision. The petitioner, however, would not be entitled to claim any benefits from this requirement, particularly in the context of the fact that the petitioner has pursued the construction relentlessly despite the intimation to her of the rejection of the proposals by the Board, dated 6-2-1981 and despite the Board's communication dated 5-3-1981 returning the plans, as is evident from the petitioner's letter dated 16-3-1981. The further consideration, that by the letter dated 3-5-1982 the Regional Officer, Civil Aviation Department, Madras, stated that the construction is being taken up by the petitioner on the approach funnel of runway 27 whereas the no objection certificate was issued to a site which was shown in the map submitted by the petitioner disclosing the site to be outside the approach funnel (certified as such by the petitioner and her architect) and in respect of which specific area no 'NOC' has been obtained from the Civil Aviation Department, weighs heavily with us in declining any relief to the petitioner. The operation and safety requirements of the defence force and of the Civil Aviation Department are preponderant and paramount areas of public interest which cannot be sacrificed at the altar of private convenience. The conduct of the petitioner cannot be characterised, in the circumstances, as either reasonable or rational, and she is, therefore, not entitled to any equitable relief within the discretionary parameters of Article 226 of the Constitution.
14. Learned Counsel for the petitioner has sought to draw sustenance from the observations made by the Supreme Court in OLGA Tellis and others v. Vayyapuri Kuppusami and others, , for the proposition that the procedure established by law with reference to Article 21 must be a procedure that confirms the norms of justice and fair play and in the context of the principle that there can be no estoppel or waiver of fundamental rights, the petitioner's right to property which is integral to her right to life guaranteed under Article 21 of the Constitution and in its expansive connotation a right to decent livelihood, must- warrant an interpretation that the valuable right of her to a deemed unconditional sanction cannot be subverted by the absence of a procedural provision with regard to communication to her by the Board of the MEO's report. In the light of our analysis above, we do not consider that the petitioner is entitled to relief on the application of any such principle.
15. On behalf of the appellant reliance has also been placed on the decision of the Bombay High Court in Phimze Temulji Anklesaria v. H.C. Vashistha, , for contending that all land in the Cantonment area cannot be held to be outside private ownership and that on the facts of each case it has to be decided that a land in the Cantonment area belongs to the Government and whether there is evidence before the Court in regard to the actual tenure of the land. This decision, in our view, is of no assistance to the petitioner. The petitioner's property, as has already been noticed by us, has been reflected as belonging to B3 class in the General Land Register and the petitioner has also addressed the MEO for grant of lease. On the petitioner's own showing, the lands are thus within the management of MEO. In the circumstances, the referral of the petitioner's application for sanction to the MEO by the Board, in the absence of any challenge to the classification of the land by the petitioner in appropriate proceedings, cannot be held to be outside the purview of Section 181(3) of the Act.
16. Sri K. Subrahmanya Reddy learned senior Counsel appearing for the respondents placed reliance on the decision of the Supreme Court in Cantonment Board, Jabalpur and others., v. S.N. Awasthi and others, , to contend that the MEO had to be mandatorily consulted as a condition to the grant of permission by the Board and that the prior sanction of the MEO under Section 181(3) of the Act is a condition precedent for the grant of any permission by the Board. We find no difficulty in accepting the said contention. The statute itself is clear on this aspect of the matter and the judgment of the Supreme Court referred to puts the aspect beyond the pale of any argument.
17. The point is answered accordingly.
Point No. 3:
18. In the light of our decision in respect of Point No.2, this point is found against the petitioner. The petitioner cannot be said to have obtained any deemed sanction for the proposals for erection or any structures after demolition of the old structures pursuant to her application to the Board dated 19-9-1980, consequent upon the notice sent to the Board by her dated 11-11-1980 or the one dated 2-3-1981.
19. The learned single Judge has extended the petitioner liberty of making an application to the Board for considering unlawful constructions made by her for composition after imposition of any composition fees. The judgment ordains that such an application may be made by the petitioner within three months from the date of the judgment i.e., 14-10-1987. At the hearing of the appeal Sri K. Subrahmanya Reddy, learned senior Counsel appearing for the respondents, placed before us a letter Ref.No.EB/B211/UAC/2143, dated 10-5-1999, addressed to him by the Executive Officer of the respondent-Board. The said letter states that no application for composition of unauthorised constructions in respect of the premises comprising the petitioner's property was received by the Board's office. The petitioner does not dispute the fact that no such application has been made to the Board. The petitioner has consciously taken this decision not to avail of the opportunity afforded to her in the judgment under appeal. In the circumstances the conduct of the petitioner does not entitle any further grant of time by this Court for making any such application. The respondent-Board would however, be within its rights, should it so choose, to entertain any such application and dispose it of in accordance with law, if made by the petitioner.
18. In the result, we hold as follows:
(1) The proceedings of the 1st respondent dated 15-10-1981 and that of the 3rd respondent dated 26-4-1982, are valid.
(2) The constructions made by the petitioner pursuant to her application submitted on 19-9-1980 are all illegal and unauthorised and not supported by any deemed sanction.
(3) The respondents may entertain an application from the petitioner for considering the compounding the illegal constructions, if they so choose, notwithstanding the expiry of time therefor permitted by the learned single Judge.
19. In all the circumstances, we discern no error in the application of law or of discretion by the learned single Judge, warranting interference in appeal. The appeal is accordingly dismissed, but in the circumstances without costs.