Uttarakhand High Court
Sanjay Narang vs Union Of India And Others on 5 September, 2017
Equivalent citations: AIR 2018 UTTARAKHAND 61
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 645 of 2014
Sanjay Narang ............ Appellant
Versus
Union of India and others ............. Respondents
Mr. Sharad Sharma, Senior Advocate assisted by Ms. Indu Sharma and Mr.
Rohan Thawani, Advocate for the appellant.
Mr. Manoj Tiwari, Senior Advocate assisted by Mr. B.S. Adhikari, Advocate for
respondent nos. 3 and 4.
Mr. P.S. Bisht, Standing Counsel for the Union of India.
Dated : 05.09.2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. JOSEPH, C.J.
This appeal is filed against the order passed in Writ Petition No. 2609 of 2016.
2. Appellant is the writ petitioner. The writ petition was filed challenging Annexure No. 4 dated 06.11.2014 passed by respondent no. 2-GOC revoking Annexure No. 18 dated 24.09.2013 and directing that notice under Section 248 of the Cantonment Act, 2006 (hereinafter referred to as "the Act") be issued to the appellant by the Cantonment Board, Landour (hereinafter referred to as "the Board") for demolition of the unauthorized construction put up by the appellant. Appellant also put in issue Annexure No. 3 Board Resolution No. 1 dated 08.11.2014, by which it was resolved by the Board to issue notice under Section 248 of the Act to demolish the entire 2 unauthorized construction amounting to 28045.57 Sq. Ft. carried out by the appellant. Annexure No. 2 dated 10.11.2014 is called in question by the appellant and it purports to be styled under sub section (2) of Section 248 of the Act at the top of the page, purporting to exercise powers under sub section (1) of Section 248 and giving notice for demolition of the building.
3. The case of the appellant, as discerned from the pleadings in the writ petition appears to be as follows:
Appellant purchased vide Annexure No. 8 document dated 27.04.2009, property in Survey No. 157 known as Dahlia Bank, Landour Cantonment, which had a 150 years old building over it. The property was mutated; the appellant started paying taxes (Annexure No. 9). He applied for erection/re-erection of the building vide Annexure No. 10 application dated 21.10.2009. Though, it was recommended, it was not sanctioned. According to the appellant, he became entitled to the benefit of deemed sanction under Section 238(6) of the Act. He filed Original Suit No. 249 of 2011 on 06.05.2011 praying for injunction. The trial court dismissed the suit on 26.05.2012. The first appeal filed by the appellant as Civil Appeal No. 57 of 2012 was allowed on 21.09.2012. The respondent-Board filed second appeal being Second Appeal No. 100 of 2012. The appeal was allowed on 14.08.2013. The judgment of the First Appellate Court was set aside and the following was the direction given by the Second Appellate Court:
"19. Accordingly, the second appeal is allowed. Impugned judgment and decreed dated 21.09.2012, passed by the District Judge, Dehradun, in Civil 3 Appeal No. 57 of 2012, is set aside. The suit No. 249 of 2011, filed by the plaintiff before Civil Judge (Sr. Div.), Dehradun, stands dismissed with the observation that if the plaintiff submits fresh plan leaving fifty meters of distance from the crest of outer parapet of ITM, the same may be considered by the appellant and respondent no. 2 in accordance with law. However, no orders as to costs. "
4. Though, two Special Leave Petitions were carried before the Hon'ble Apex Court, the judgment of the Second Appellate Court was confirmed but certain observations were made and we will advert to the same later.
5. The respondent-Board passed Resolution No. 6 on 20.03.2012 (Annexure No. 11) granting sanction to carry out repair work in the Tennis Court located in the appellant's property. According to the appellant, he filed another application dated 18.06.2012 along with the proposed plan, as submitted earlier(Annexure No. 12). On the same, the Board passed Annexure No. 13 Resolution dated 30.06.2012 permitting construction. It is stated that the members submitted a written application dated 23.08.2012, signed by the Vice President and five other elected members for carrying out rectification in the Board Resolution dated 30.06.2012. The Board on 18.09.2012 by majority vote clarified that in the meeting held on 30.06.2012, they have sanctioned entire building plan placed before the Board and it was also supported by the President, Cantonment Board (hereinafter referred to as "PCB"). The Resolution dated 30.06.2012 was revoked vide order dated 16.11.2012. The same was, however, set aside by this Court in Writ Petition (M/S) No. 118 of 2013 4 vide order dated 11.06.2013 and the matter was remanded back to the second respondent to pass orders afresh. Respondent No. 4- Chief Executive Officer, Cantonment Board, Landour Cantonment issued notice dated 17.08.2013, in which it was stated that the appellant had stored necessary material for plastering, wood work and steel work, without having sanction of construction in the extent of 317.66 Sq. Mtrs. Notice was issued as to why action should not be taken under Section 247 and 248 of the Act against the appellant (Annexure No. 15). Appellant sent Annexure No. 16 letter seeking to withdraw the said notice after referring to the Board Resolutions dated 20.03.2012, 30.06.2012 and 18.09.2012. It is alleged that the appellant issued notice dated 23.09.2013 and intimated completion of erection/re-erection of the building to the CEO, who received the same on 24.09.2013. Annexure No. 18 purports to be the Resolution dated 24.09.2013, by which Annexure, the majority decided against issuing notice under Section 248 to the appellant. On the basis of intimation of the appellant, it is the case of the appellant that the President Cantonment Board sent its team of officers. They carried out inspection on 18.10.2013 and gave finding that construction of the building externally is complete up to the roof level. Respondent no. 4 did not issue the completion certificate. Inspection Report dated 18.10.2013 is produced as Annexure No. 19. It is alleged that demolition notice was issued and the appellant sent its reply vide Annexure No. 20. The learned Single Judge had dismissed the writ petition. 5
6. Heard Mr. Sharad Sharma, learned Senior Counsel on behalf of the appellant and Mr. Manoj Tiwari, learned Senior Counsel assisted by Mr. B.S. Adhikari, Advocate on behalf of the respondent-Board.
7. The learned senior counsel for the appellant would contend that no notice was given to the appellant before issuance of the impugned decisions. He would contend that construction was carried out, which is subject matter of the impugned notice and decisions on the basis of Resolution dated 30.06.2012. The construction continued from 01.07.2012 till 10.10.2012. On 11.10.2012, order of status-quo was passed in the second appeal, which litigation we have adverted to. The second appeal was finally disposed of on 14.08.2013. It is his contention that the Chief Executive Officer has not been authorized to take action. It is contended that the area of property of the appellant falls in an area outside the civil area and in respect of such areas, under Section 234 of the Act, the power to grant sanction is vested with the Board. With reference to Section 237, it is submitted that there is no power available to the Chief Executive Officer. He reiterates that principles of natural justice were violated, insofar as no opportunity was afforded to the appellant before the decision was taken. Next, he would contend that under Section 248(1), action could have been taken within 12 months only of the completion of construction. In this case, having regard to the fact that construction of the building was completed well before one year, before the date of issuance of the notice, the action is barred by limitation. He would rely on Section 44 of the Act 6 and would contend that the action was unauthorised. He would also point out that though reference was made to the notice dated 17.08.2013, which speaks about the joint inspection revealing that the appellant had made unauthorized construction of 317.66 Sq. Mtrs, without making the appellant a party, a joint inspection was made and the report obtained, according to which the construction has been shown as more than 28,000 Sq. Ft. Thus, without issuing any notice and without the appellant having been made a party to the inspection, the extent of unauthorized construction is illegally arrived at. He would next contend that the notice issued under Section 248(1) of the Act is illegal for the reason that Section 248(1) is attracted only when an offence has been committed under Section 247. With reference to Section 247, it is the appellant's case that no offence has been committed, as the construction carried out was done on the basis of sanction, as already referred to, namely, Resolutions dated 30.06.2012 and 18.09.2012. He would also point out that there is power of composition available under Section 248(1) and he would invoke it. He would rely on the following judgments to contend that the action against the appellant is barred by limitation:
i. Commissioner of Customs and Central Excise Vs. Hongo India Private Limited and another, reported in (2009)(5) SCC 791.
ii. Chattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission and others, reported in (2010) 5 SCC 23.
7
iii. Hukumdev Narain Yadav Vs. Lalit Narain Mishra, reported in (1974) 2 SCC 133.
iv. Union of India Vs. Popular Construction Co., reported in (2001) 8 SCC 470.
8. He would also refer to the following judgments to contend that principles of natural justice has been violated:
i. Cantonment Board, Dinapore and others Vs. Taramani Devi, reported in 1992 Supp (2) SCC 501.
ii. Lord Shiva Birajman in H.B. Yogalaya and another Vs. State of U.P. and others, reported in (2004) 13 SCC 518.
9. Per contra, Mr. Manoj Tiwari, learned senior counsel appearing on behalf of the Board would contend that the construction, in this case, has been made without there being any sanction. He would contend that the construction was made within the prohibited distance as contemplated in the Works of Defence Act, 1903. The finding in this regard by the Civil Court has become final. It is, in fact, pointed out, as already noticed that an application was made by the appellant in the year 2009, which was rejected on 06.07.2011. Against this order, the matter was carried in appeal by the appellant, which was rejected vide decision dated 15.02.2012. He would contend that though the Resolution was passed on 30.06.2012, the same has been set aside by the GOC and secondly, he would contend that the Resolution was not communicated as such. It is not open to the appellant to draw support from the Resolution to salvage the illegal construction done by him. He drew our 8 attention to Section 245 of the Act, which contemplates action to make a Resolution effective and such action has not taken place and therefore, he would submit that requirement of Section 248(1) was satisfied. As far as principles of natural justice are concerned, he would contend that there is no need to issue notice to the appellant before Annexure No. 18 Resolution dated 23.09.2012 was set aside by the Commanding Officer. Under Section 58 of the Act, opportunity was afforded to the Board as contemplated in law to make a representation. It was the Board's Resolution, which was being rescinded. Appellant may be the beneficiary under the same. Principles of natural justice stood fulfilled upon opportunity being afforded to the Board. Regarding the period of limitation, it is submitted that Annexure No. 18 Resolution was passed on 23.09.2012 and the action was taken on the very next day. Learned senior counsel for the respondents would submit that reliance placed by the appellant on the power of composition is unwarranted and it cannot be granted.
10. In the meantime, there was an order of status-quo in the second appeal dated 11.10.2012. There was a development in the form of undertaking recorded before the Hon'ble Apex Court in the Special Leave Petitions filed by the appellant. The said order reads as follows:
"The counsel for the respondent-Cantonment Board submitted that the petitioner under the garb of renovation of some portion of the building ultimately wanted to reconstruct the whole building which was objected to and deemed approval of the plan was treated as deemed rejection / withdrawal of the approval of the plan.9
The counsel for the respondent further submitted that it has no intention of demolishing the building of the petitioner but it cannot approve the reconstruction under the garb of renovation.
The counsel for the respondent-Cantonment Board is directed to file a specific affidavit in this regard within two weeks indicating that it has no intention to demolish the building although it has objection to reconstruction which had been made by the petitioner.
The parties shall maintain status quo, as obtaining today, in regard to the disputed property for a period of three weeks."
11. In this case, there was a Resolution by the Board and notice was issued on the basis of the said Resolution to take action under Section 248 (1) of the Act. So, it is not correct to contend that Chief Executive Officer was not entitled to do so.
12. Mr. Sharad Sharma learned senior counsel would contend that it may be true that the second appeal was decided against the appellant and the Special Leave Petition was dismissed but he reminds the Court that the Hon'ble Apex Court has left open challenge to the alleged notification based on the Works of Defence Act, 1903. A writ petition is pending in this regard. He would also point out the following conduct of the respondents:
The Chief Executive Officer had by order dated 06.07.2011 rejected the application dated 21.10.2009. The reason is as follows :
"NO. 13/157/CBL/42 Office of the Cantonment Board Landour. (Mussoorie) Dated: 06 July, 2011 10 To, Shri Sanjay Narang Dahlia bank Landour Cantt. Mussoorie SUB: RE-ERECTION OF BUILDING KNOWN AS DAHLIA BANK, SURVEY NO. 157/1 LANDOUR CANTT.
Reference your application dated 21-10-09.
2. The ITM Landour Cantt has not accorded their NOC from restricted notified area point of view as required vide para 3 of their letter No.ITM/2117/Wks dated 25-8-2008 issued to the owner of Dahlia Bank read with section 3,6,7 of Wks Defence Act, 1903 and Sub- Section 3 of Section 238 of Cantonment Act, 2006. Therefore, your building plan is returned herewith duly rejected as the Building comes under restricted notified area.
CHIEF EXECUTIVE OFFICER CANTONMENT BOARD, LANDOUR Encl As Above."
13. The appeal against the same was disposed of on 15.02.2012 in the following manner :-
"13. In light of the discussion, analysis and conclusion drawn, I, the Appellate Authority, under the powers vested in me vide section 340 of the Cantonment Act, 2006, decide that :-
(a) The impugned Notice 13/157/CBL/42 DT 06 JUL 2011 issued by the Cantonment Board Landour is legally in order.
(b) As per Gazette of India notification dated September 11-17,2005 SRO 106 dated 30 Aug 2005, for any kind of construction/renovation by the occupants of the building lying within the distance of approximately fifty meters from the crest of the outer parapet of the ITM, Landour Cantt, 11 they are required to obtain NOC from ITM for the purpose.
(c) Therefore, Appellant should obtain NOC from the ITM, Landour Cantt and thereafter submit his renovation plan to the Cantt. Board alongwith NOC for consideration with complete details.
(d) In case of any court case pending on the subject matter the implementation of this order be kept pending till disposal of the same by the Civil Court.
(e) In view of the above, the appeal preferred by the Appellant is without merit and substance and, thus dismissed herewith.
14. It is pointed out that by letter dated 14.03.2012, the appellant stood informed on behalf of the Director, Government of India, Ministry of Defence that the permission to accord NOC for the property in question is the prerogative of the DEO Meerut Circle and further the appellant was asked to approach the DEO Meerut Circle, Meerut Cantonment and the respondent-Cantonment Board. It was further stated that the copies of the applications of the appellant had been forwarded to the DEO Meerut Circle Meerut Cantonment for necessary action.
15. Learned senior counsel for the appellant then relied on letter dated 13.04.2012, which shows that appellant has not approached the DEO Meerut Circle but has approached the DEO of the respondent-Board. The said request reads as follows :-
"Dahlia Bank 12 Landour Cantt Mussoorie Uttarakhand CANTT/SN/sm/31 April 13, 2012 C.E.O. Landour Cantt HAND DELIVERY Mussoorie Sub: Our property at Dahlia Bank, Survey No. 157, Landour Cantt, Mussoorie, Uttarakhand.
Dear Sir, With reference to your letter no. 13/157/42 dated 06.07.11 (Annex 1) wherein our building plans submitted were returned stating that the NOC from the ITM Landour Cantt was not received.
Kindly find attached the letter no. ITM/2117Wks dated 14.03.2012(Annex 2) received by us from the ITM which clearly states that the NOC from them is not required, as it is the prerogative of the DEO Meerut Circle/Cantt Board Landour under whose management this property vests.
Accordingly they have requested us to follow up the matter with you directly.
In accordance with their advise, we are once again submitting the same set of plans (Annex 3) which were submitted to you earlier and approved at the Landour Cantt Board Meeting on 05.12.09.
May we now request you to kindly approve these plans and withdraw your order dated 06.07.11 at the earliest, as no NOC is required.
Thanking you, Yours faithfully, Sanjay Narang 13 Encl : as above Cc : Major General Ranvir yadav, VSM President Cantt Board & GOC Sub Area Headquarters Dehradun Defence Estates Officer Meerut Circle Meerut Cantt Meerut 260 001 (UP)
16. Thereafter, on 30.04.2012, a reminder was sent by the appellant to the Chief Executive Officer of the Cantonment Board. It reads as follows :
"Dahlia Bank Landour Cantt Mussoorie Uttarakhand CANTT/SN/sm/41 April 30, 2012 C.E.O. Landour Cantt HAND DELIVERY Mussoorie Sub: Our property at Dahlia Bank, Survey No. 157, Landour Cantt, Mussoorie, Uttarakhand. Dear Sir, Further to our letter no. CANTT/SN/sm/31 dated April 13.2012, we request you to kindly put up our case for consideration at the next Landour Cantt Board meeting along with this letter (and the attachments herein).
With reference to the ITM letter no. ITM/2117/Works dated April 11, 2012 addressed to the District Magistrate and others, kindly find 14 attached our pointwise reply enclosed for your kind perusal (Annex 1).
We further clarify and undertake that upon approval of the renovation plans being granted, all the litigations filed with the Civil Judge, Dehradun, shall be withdrawn by us immediately.
Your prompt action and favourable response shall be appreciated.
Thanking you, Yours faithfully, Sanjay Narang Encl : as above Cc : Major General Ranvir yadav, VSM President Cantt Board & GOC Sub Area Headquarters Dehradun Defence Estates Officer Meerut Circle Meerut Cantt Meerut 260 001 (UP)
17. On 08.05.2012, it is pointed out that the CEO wrote the following communication to the appellant:
"NO. 13/157/CBL/Vol II/74 Office of the Cantonment Board Landour. (Mussoorie) Dated: 08 May, 2012 To, Shri Sanjay Narang Dahlia bank Landour Cantt.
Mussoorie
15
SUB: RE-ERECTION OF BUILDING KNOWN AS
DAHLIA BANK, SURVEY NO. 157
LANDOUR CANTT.
Reference your letter dated CANTT/SN/sm/31 dated 13.04.2012.
2. The building application dated 13.04.2012 alongwith building plan submitted by you is returned herewith. Please re-submit the same with definite NOC from ITM Landour Cantt. The ITM letter No. ITM/2117/Wks dated 14.03.2012 quoted by you is not a definite NOC. Also as per the instructions issued by the Government of India, Ministry of Defence, New Delhi vide their letter No. 11026/2/2011/D(Lands) dated 18.05.2011, NOC is required from LMA and DEO also.
3. In addition to above, the Board vide its resolution No.20 dtaed 10.10.2011 copy already sent to you vide this Office letter No.46/Restricted Area/CBL dated 25 October, 2011 has decided that any construction within the distance of approximately Fifty meters from the crest of the outer parapet of the Institute of Technology Management (ITM) Landour Cantt. Mussoorie, NOC is to be obtained from ITM.
4. Further, the Appellate Authority/GOC-in-Chief, HQ Central Command, Lucknow vide his order dated 15.02.2012 is para 13(c) directed that "Appellant should obtain NOC from the ITM Landour Cantt and thereafter submit his renovation plan to the Cantt. Board alongwith NOC for consideration with complete details.
Chief Executive Officer Cantonment Board, Landour"
18. On 14.05.2012, the Director writes to the Executive Officer of the respondent-cantonment as follows :
16
"No. ITM/2117/Dahlia/Works 14 May 2012 To, The Cantonment Executive Officer Landour Cantt, MUSSOORIE, (UTTARAKHAND) Sub: ORDER PASSED BY HONOURABLE SESSION COURT, DEHRADUN IN RESPECT OF DAHLIA BANK.
Reference your letter No. 13/157/CBL/VOL-II/72 dated 07 May 2012.
1. Please confirm actions taken or contemplated in respect of the Honorable Session Court order, copy also available with your office.
2. You may also refer Gol, Ministry of Defence letter No. 11026/2011/D(Lands) dated 18 May 2011 vide para (c), in which it is reiterated that NOC shall not be given by ay authority other than Station Commander.
3. ITM/DRDO has strictly adhered to such Govt. instructions/guidelines and Works of Defense Act 1903 in all cases.
4. However provision of Works of Defense Act 1903 is being violated on ground and you are requested to initiate suitable action in respect of Dahlia Bank (Survey No. 157/1).
(Om Kumar Munakhia) TO "D"
O I/c Works For Director Copy to:
The Defence Estate Officer (DEO) Meerut Cantt, -For information please MEERUT N.O.O.
1. The Chief Construction Engineer 17 Chandraya Gutta Keshavgiripost HYDERABAD
2. The Director Dte of Civil Works & Estate 'A' Wing, DRDO Bhawan Rajaji Marg NEW DELHI - 110011"
19. It is, therefore, contended that the letter dated 14.05.2012 wherein it was indicated that the competent person concerned as per the Government of India decision is the Station Commander. The said decision was not communicated to the appellant and it is obtained only much later in the month of October, 2013 under the Right to Information Act. Appellant again sent a reminder on 18.05.2012.
20. There is also reference to letter dated 23.05.2012, which reads as under :
"No. 13/157/CBL/Vol II/90 Office of the Cantonment Board Landour. (Mussoorie) Dated: 23 May, 2012 To, Shri Sanjay Narang R/o Dahlia bank Landour Cantt, Mussoorie SUB: RE-ERECTION OF BUILDING KNOWN AS DAHLIA BANK, SURVEY NO. 157 LANDOUR CANTT.
Reference your letter dated CANTT/SN/sm/47 dated 18 May, 2012.18
2. In this connection it is intimated that there is no change in circumstances from the date of earlier rejection of building plan of Dahlia Bank GLR Survey No. 157. Therefore, the plan is returned herewith unactioned.
3. Further the ITM letter No.ITM/2117/Dahlia/Works dated 22 May 2012 is also enclosed herewith wherein they have clarified that the ITM has not issued NOC for construction of Dahlia Bank GLR Survey No. 157.
Chief Executive Officer Cantonment Board, Landour"
21. On 08.06.2012, the Chief Executive Officer of the respondent-Board communicated to the appellant, which reads as follows:
"No. 13/157/CBL/Vol II/97 Office of the Cantonment Board Landour. (Mussoorie) Dated: 08 June, 2012 To, Shri Sanjay Narang Dahlia bank Landour Cantt Mussoorie SUB: RE-ERECTION OF BUILDING KNOWN AS DAHLIA BANK, SURVEY NO. 157 LANDOUR CANTT.
Reference your letter No. CANTT/SN/sm/49 dated 25 May, 2012 and this Office
(i) Letter No. 13/157/CBL/42 dated06.07.2011,
(ii) Letter No. 13/157/CBL/53 dated 13.12.11
(iii) Letter o. 13/157/CBL/Vol.II/90 dated 23.05.2012.19
2. In view of the circumstances intimated to you vide this Office letter under reference, your request cannot be acceded.
3. The building plan re-submitted by you is again returned herewith un-actioned.
4. This is also disposal of your letter No. Cantt SN/sm/41 dated 30.04.2012, No. Cantt/SN/sm/47 dated 18.05.2012, No. Cantt/SN/sm/48 dated 25.05.2012 and No. Cantt/SN/sm/51 dated 31.05.2012.
Chief Executive Officer Cantonment Board, Landour"
22. The building plan resubmitted was returned. Thereupon, the appellant sent two communications. The main communication, which apparently forms the basis for the Resolution dated 30.06.2012 being relevant, we extract the same:
"Dahlia Bank Landour Cantt Mussoorie Uttarakhand CANTT/SN/sm/56 June 18, 2012 C.E.O. Landour Cant Mussoorie HAND DELIVERY Sub: Our property at Dahlia Bank, Survey No. 157, Landour Cantt, Mussoorie, Uttarakhand.
Dear Sir,
20
This has reference to your letter no.
/13/157/CBL/VOLL.II/97 which is dated 08.06.2012, but hand delivered to us on 11.06.2012. Our para wise response to this is as below:
2. You have stated that our request to consider our plans for approval cannot be acceded to, for the reasons stated in your letters no. /13/157/CBL/42 dated 06.07.2011, no. /13/157/CBL/53 dated 13.12.11 and no. /13/157/CBL/VOL II/90 dated 23.05.12. However this statement itself is completely wrong, as we have already responded to each of your abovementioned letters, and have attached documents in support of all of our responses / clarifications as sought by you.
For your information we once again clarify as below:
a. Your letter dated 06.07.11 deals with the ITM NOC, which we have clarified in detail vide our letter dated 18.05.2012. However we have not received a point wise response from you to our letter.
b. Your letter dated 13.12.11 deals with the DEO's NOC rejection, which was based on his erroneously assuming that our plot was on SY No. 157/1. We have clarified hat our plot is not SY No. 157/1 but is located on SY No. 157. Subsequently the DEO has put up our case to Jt. Director PDDE for approval vide his letter no. 275/LM/IV dated 25.05.12.
c. Your letter dated 23.05.12 states that there is no change in circumstances, whereas we have clarified in writing the substantial changes in circumstances which warrant reconsideration of our application. These are once again summarized below for your kind information.
- Earlier the DEO erroneously assumed that Dahlia Bank is on SY No. 157/1 instead of SY No.
157. This has been brought to the DEO's notice 21 vide our letter no. CANTT/SN/sm/21 dated 12.01.12.
- Subsequent to your rejection letter, the ITM have permitted us to carryout structural repairs to the tennis court building, vide the Cantt Board Resolution dated 20.03.12. Therefore, it is only logical that they should have no objection to carrying out repairs on the other 150 yr old dilapidated and dangerous structures on the property.
- Woodstock School, whose staff quarters are located immediately below Dahlia Bank, have written to us asking us to ensure that the Dahlia Bank structures directly above the School, are repaired forthwith, to avoid them failing down and causing damage/injury/death to the occupants of the houses directly below. This is a very serious concern not only for the occupants of the houses immediately below Dahlia Bank but also the public road known as Tehri Road, which lies directly below. Photographs showing the dangerous condition of the structure located on the edge of Dahlia Bank have also been forwarded to you.
- It is most important to note that the Jt. Director PDDE has clearly stated in his letter dated 23.11.11 that if our property is SY No. 157, then the case should be processed as per procedure, and in accordance with this we have asked you to put up our case to the Cantt Board for consideration.
- We further add that only building No. 1, as shown the plans for approval submitted by us lies within the 50 mtrs restricted area. The area of Dahlia Bank shaded in blue in the plan attached as Annex 1, lies beyond 50 mtrs from the ITM boundary, hence these structures ((building No. 2 and No. 6 which are located beyond 50 mtrs) do not require ITM's NOC for reconstruction.22
Therefore there is absolutely no reason or basis for the Cantt Board to withhold approval for the reconstruction of these structures.
It appears that you have not considered all of the above facts, which have been repeatedly brought to your notice, and have once again wrong fully rejected our plans, without even bothering to respond to any of our factual submissions.
3. The set of plans are once again resubmitted for consideration at the next Board Meeting of the Landour Cant (attached as Annex 2).
4. You are requested to kindly provide a point wise reply to our letter nos. CANTT/SN/sm/41, 47, 48, 49, 51, and to not repeatedly and arbitrarily dismiss the same by ignoring all the fact/submissions therein.
As the CEO of the Landour Cantonment it is your responsibility to ensure the safety of the public within the Cantonment area and you are acing in a grossly negligent manner by ignoring this responsibility, as well as the safety of the occupants of Woodstock School, which lie directly below the dilapidated and dangerous structure located on the edge of Dahlia Bank. We once again reiterate that we shall not be held responsible and only you shall be liable in case of any damage/injury to persons, property arising out of the collapse of the dilapidated structures at Dahlia Bank.
We once again urge you to treat us in a fair and transparent manner, by following the due process as laid by the Cantonments Act 2006 and to not act against us in such a prejudicial manner.
With regards,
SANJAY NARANG
Encl : as above
23
Cc : Defence Estates Officer )
Meerut Cicle )
Meerut Cantt )For information
Meerut 260001 (UP) )"
23. With reference to letter dated 18.06.2012, when it is pointed out to the learned senior counsel for the appellant that it was stated as follows :
"We further add that only building No. 1, as shown the plans for approval submitted by us lies within the 50 mtrs restricted area. The area of Dahlia Bank shaded in blue in the plan attached as Annex 1, lies beyond 50 mtrs from the ITM boundary, hence these structures ((building No. 2 and No. 6 which are located beyond 50 mtrs) do not require ITM's NOC for reconstruction. Therefore there is absolutely no reason or basis for the Cantt Board to withhold approval for the reconstruction of these structures.
It appears that you have not considered all of the above facts, which have been repeatedly brought to your notice, and have once again wrong fully rejected our plans, without even bothering to respond to any of our factual submissions."
learned senior counsel for the appellant would submit actually the plan, as sanctioned was the original plan submitted in the year 2009 and this was what was intended by the majority of the Board and the discrepancy in the Resolution dated 30.06.2012 stood rectified by passing of the Resolution dated 18.09.2012 and therefore, the appellant did have sanction for the construction and there was no offence under Section 247 of the Act and no action could be taken under Section 248 (1) of the Act. He would also submit that even the Chief Executive Officer, when he wrote to the GOC seeking to revoke the 24 Resolution dated 30.06.2012, has stated vide communication dated 04.07.2012 inter alia stated as follows:
"8. The Cantonment Board meeting was held on 30.06.2012 and the undersigned has circulated the agenda mentioning 17 points for consideration of Board (Copy enclosed as Annexure 'M'). After concluding the said Agenda wherein the Vice-President with the permission of PCB Cantt Board Landour insisted to include the application of Shri Sanjay Narang regarding building application dated 18.05.2012 and 25.05.2012 (Copy enclosed as Annexure 'N' and 18.06.2012 (Copy enclosed as Annexure 'O') as additional agenda point inspite of my best efforts to prevent considering of application of Shri Sanjay Narang for repair/re-construction plan of Dahlia Bank main Building, Cottages and other structure situated on Survey No. 157 as passing of the same will be against the rules, regulations, guidelines and also hamper the Government interest. I also clearly stated that Shri Sanjay Narang has already demolished the old structure and permission for minor repair is not required. Even then the President Cantt Board insisted the undersigned to take it additional point and passed the resolution for repair/re- construction by majority (PCB & all six Elected Members) (Copy of Additional Agenda Point No. 1 dated 30.06.2012 enclosed Annexure 'P') which is self explanatory. Lt.Col. Dinesh Gaur, GE (R&D), Raipur Dehradun an Col. S.S. Dhillon, Nominated Member of ITM Landour Cantt and the undersigned have opposed stating that, the decision of the Board is against the provision of the Act, Rules, Regulations and the general guidelines issued by the Central Government from time to time in this regard. Shri Sanjay Narang is misleading the concerned authorities by giving different facts in i.e. 25 some time map of main building and sometime of cottage."
24. Learned senior counsel for the appellant would thus submit that it may not be correct for the learned senior counsel for the respondent to contend that there is no sanction under the Resolution dated 30.06.2012 as the said sanction was in fact, rescinded under Section 58 of the Act.
25. It is necessary to refer to Section 248 of the Act. It reads as follows:
"248. Power to stop erection or re-erection or to demolish.--(1) A Board may, at any time, by notice in writing, direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board considers that such erection or re- erection is an offence under section 247 and may, in any such case or in any other case in which the Board considers that the erection or re-erection of a building is an offence under section 247, within twelve months of the completion of such erection or re-erection in like manner, direct the alteration or demolition, as it thinks necessary, of the building, or any part thereof, so erected or re-erected:
Provided that the Board may, instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable:
Provided further that the Board shall not, without the previous concurrence of the General Officer Commanding-in-Chief, the Command, accept any sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board.
(2) A Board shall by notice in writing direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the order under 26 section 238 sanctioning the erection or re-erection has been suspended by the General Officer Commanding-in-Chief, the Command, under clause
(b) of sub-section (1) of section 58, and shall in any such case in like manner direct the demolition or alteration, as the case may be, of the building or any part thereof so erected or re-erected where the General Officer Commanding-in-Chief, the Command, thereafter directs that the order of the Board sanctioning the erection or re-erection of the building shall not be carried into effect or shall be carried into effect with modifications specified by him:
Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or alteration of any building which has been erected or 81 re-erected prior to the date on which the order of the General Officer Commanding-in-Chief, the Command, has been communicated to him."
26. It is equally necessary in view of Section 248(1) that we also advert to Section 247. It reads as follows:
"247. Illegal erection and re-erection.-- Whoever begins, continues or completes the erection or re-erection of a building--
(a) without having given a valid notice as required by sections 235 and 236, or before the building has been sanctioned or is deemed to have been sanctioned; or
(b) without complying with any direction made under sub-section (1) of section 238; or
(c) when sanction has been refused, or has ceased to be available or has been suspended by the General Officer Commanding-in-Chief, the Command, under clause (b) of sub-section (1) of section 58, 27 shall be punishable with fine which may extend to fifty thousand rupees and the cost of sealing the illegal construction and its demolition.
27. We also would proceed on the basis that the sanction has to be given by the Board, as Section 234 provides for sanction in respect of "area other than the civil area" and the provision contemplates previous sanction of the Board. Section 234 reads as follows:
"234. Sanction for building.--No person shall erect or re-erect a building on any land in a cantonment--
(a) in an area, other than the civil area, except with the previous sanction of the Board;
(b) in a civil area, except with the previous sanction of the Chief Executive Officer, nor otherwise than in accordance with the provisions of this Chapter and of the rules and bye-
laws made under this Act relating to the erection and re-erection of buildings:
Provided that if an erected or re-erected building is meant for public purposes, then it shall be made accessible to and barrier free for the persons with disabilities.
28. Section 238 of the Act deals with the power to sanction or refuse sanction.
29. Section 242 of the Act deals with completion of notice. It reads as follows:
"242. Completion notice.--Every person to whom sanction for the erection or re-erection of any building in any area in a cantonment has been given under section 237 or section 238 by the Chief Executive Officer or, as the case may be, by the Board shall, within thirty days after completion of 28 the erection or re-erection of the building give a notice of completion in writing to the Chief Executive Officer or the Board, as the case may be, and the Chief Executive Officer or the Board shall on receipt of such notice cause the building to be inspected in order to ensure that the building has been completed in accordance with the sanction given by the Chief Executive Officer or the Board, as the case may be."
30. We deem it appropriate to refer to Section 245 and 246 of the Act dealing with the period of completion of the building and completion certificate, respectively:
"245. Period for completion of building.--A Board, when sanctioning the erection or re-erection of a building as hereinbefore provided, shall specify a reasonable period after the work has commenced within which the erection or re-erection is to be completed, and, if the erection or re-erection is not completed within the period so fixed, it shall not be continued thereafter without fresh sanction obtained in the manner hereinbefore provided, unless the Board on application made therefor has allowed an extension of that period:
Provided that not more than two such extensions, each for not more than one year, shall be allowed in any case.
246. Completion certificate.--The Chief Executive Officer shall on receipt of the notice under section 242 of this Act cause the building to be inspected either by himself or by the officer authorised by him in his behalf in order to ensure that the building has been completed in accordance with the sanction given and issue completion certificate provided that the person seeking the completion certificate shall assist the Chief Executive Officer in inspection of such building:
Provided that the building shall not be occupied for habitation unless a certificate is issued 29 by the Chief Executive Officer or an officer authorised by him in this behalf:
Provided further that if the Chief Executive Officer fails within a period of thirty days after the receipt of the notice of completion, to communicate his refusal to issue such certificate, such certificate shall be deemed to have been granted."
31. On perusal of all these provisions, we would come to the following conclusions:
32. The Act contemplates that by Section 235 of the Act, whoever intends erection or re-erection of any building in a cantonment shall apply for sanction by giving notice in writing. The Board has to either refuse or grant sanction. Section 248(1) of the Act contemplates power with the Board to give notice in writing by directing the owner, lessee or occupier of any land in the Cantonment to order demolition of a building, if such erection or re-erection of a building is an offence under Section 247 of the Act. Action has to be taken within 12 months of the completion of such erection/re-erection in like manner. It is also open to the authority to direct alteration. It is also open to the Board to accept such sum, as it thinks reasonable by way of composition.
33. Therefore, power under Section 248 (1) can be exercised only if there is an offence within the meaning of Section 247 of the Act. The next condition is that the action should be taken within twelve months of completion of the building. Section 248(2) deals with a different situation. It provides that the Board shall issue a notice directing the owner, lessee or 30 occupier of any land to stop erection or re-erection of the building in any case, in which the order under Section 238 of the Act sanctioning erection or re-erection is suspended under Section 58 of the Act. It further provides that the Board shall, in the same manner, direct the demolition or alteration of the building or any part where the GOC-in-Chief directs that the sanction given by the Board for erection or re-erection is not to be carried into effect or is to be carried into effect with modifications. Thus, Section 248(2) of the Act deals with a situation where demolition or alteration is to be ordered when sanction was given by the Board for erection or re-erection of the building and the GOC directs action under Section 58 of the Act. In this connection, we must notice the two relevant Sections in the Act.
34. Section 56 of the Act deals with the power to override the decision of the Board. We are concerned with Sub Section 4 of Section 56 of the Act, which reads as follows:
"56. Power to override decision of Board.
4. If the Chief Executive Officer considers any decision of the Board taken at a meeting, to be in contravention of the provisions of this Act, rules, regulations or bye-laws made there under and the general guidelines issued by the Central Government from time to time in this regard, he may, for reasons to be recorded in writing and after informing the President in this behalf, forthwith refer the matter to the Principal Director who shall if considered appropriate direct the suspension of action on the said decision for a period not exceeding one month."
35. Thereafter, Section 58 of the Act reads as follows: 31
"58. Power of General Officer Commanding-in- Chief, the Command, on reference under section 56 or otherwise.--(1) The General Officer Commanding-in-Chief, the Command, may at any time--
(a) direct that any matter or any specific proposal other than one which has been referred to the Central Government under sub-section (2) of section 56 be considered or reconsidered by the Board; or
(b) direct the suspension, for such period as may be stated in the order, of action on any decision of a Board, other than a decision which has been referred to him under sub-section (1) of section 56, and thereafter cancel the suspension or after giving the Board a reasonable opportunity of show in cause why such direction should not be made, direct that the decision shall not be carried into effect or that it shall be carried into effect with such modifications as he may specify.
(2) When any decision of a Board has been referred to him under sub-sections (1) and (4) of section 56, the General Officer Commanding-in- Chief, the Command, may, by order in writing,--
(a) cancel the order given by the President directing the suspension of action; or
(b) extend the duration of the order for such period as he thinks fit; or
(c) after giving the Board a reasonable opportunity of showing cause why such direction should not be made, direct that the decision shall not be carried into effect or that it shall be carried into effect by the Board with such modifications as he may specify.
36. Thus, under Section 58(2)(c) of the Act, we find that after giving the Board an opportunity of showing cause why such a direction should not be made, the GOC in Chief may direct that the decision shall not be carried into effect or it is to be carried into effect with such modifications, as he may specify. 32
37. Therefore, Section 248(2) of the Act should be read in conjunction with Sections 56 and 58 of the Act and it will yield the following result:
A person may get the sanction from the Board. The matter may receive consideration at the hands of the GOC under Section 58 of the Act. It is open to the GOC to direct that the Board's decision is not to be carried out. A person acting on the strength of the sanction given by the Board may have in the meantime carried out constructions. When the GOC, acting under Section 58(2)(c) of the Act, directs that the decision of the Board shall not be put into effect, the Legislature under Section 248 (2) of the Act has provided for the said contingency and obliges the Board to issue a notice under Section 248 (2) of the Act to direct demolition or alteration of the building, which was erected or re-erected, acting on the basis of the sanction given by the Board. For Section 248 (2) of the Act to apply, there must be a sanction obtained from the Board. Section 248 (2) of the Act also vests a duty with the Board to stop the construction being carried out on the strength of the sanction given by the Board, which has been suspended by the GOC acting under Section 58 of the Act. Thus, it is clear that Section 248 (1) and Section 248 (2) of the Act operates in two mutually exclusive situations. In this case, Annexure No. 2 notice is issued under Section 248 (2) of the Act. But a perusal of the body of the notice would show that it makes reference to ingredients of Section 247(1). In fact, the stand of the respondents appears to be also that this is a clear case, where there is no sanction obtained and, therefore, Section 248(1) read with Section 247 of the Act is attracted.33
38. In this case, we will have to further examine the case under Section 248(1) of the Act in a greater detail. As already noticed, the two indispensable requirements appear to be that there should be an offence committed under Section 247 of the Act and notice should be issued within twelve months of completion of erection or re-erection.
39. There are two arguments, which have been addressed on behalf of the respondents. One, qua the elements of Section 247 being absent and the other is regarding the period of limitation. As far as the question of sanction is concerned, it is the case of Mr. Manoj Tiwari, learned senior counsel for the respondents that there is no valid sanction within the meaning of Section 247 and Section 248 (1) of the Act for the reason that all that happened was on 30.06.2012 though the Resolution was passed by the majority; it was not communicated to the appellant. The second argument is that under Section 245, which provision we have already noticed, the Board when sanctioning the erection or re-erection of the building, has to specify a reasonable period after the work has commenced, within which the erection or re- erection is to be completed. It further provides that if it is not completed within the said period, it shall not be continued without fresh sanction, unless on an application, there is an extension. The provision also contemplates only two extensions, each of which is not to be more than for one year.
40. Mr. Sharad Sharma, learned senior counsel for the appellant, on the other hand, would submit that this is a duty 34 to be performed by the Board and if this period is not mentioned, it cannot amount to a case where there is no sanction. Furthermore, he draws our attention to the communication made by the Secretary, which is dated 04.07.2012, addressed to the Principal Director requesting that the matter be forwarded under Section 56(4) of the Act to get the Resolution dated 30.06.2012 rescinded/expunged. Therein, the Chief Executive Officer would say that the decision of the Board is against the provision of the Act, Rules, Regulations and the Guidelines. We have already noticed Section 56 and 58 of the Act. Still further, a perusal of Section 238 of the Act would show that the Board may either grant or refuse sanction. The Board may either act unanimously or it may, in a given case, decide the matter by a majority. Therefore, it cannot be said that the decision of the Board, if it is one sanctioning though by a majority, cannot amount to a sanction within the meaning of Section 238 of the Act. What Section 247 of the Act contemplates is that the activities are carried out, as contemplated therein, before the work is sanctioned or is deemed to have been sanctioned. Therefore, it cannot be treated to be a case where sanction has been refused nor can it be said to be a case where sanction given has ceased to be available. The words "ceased to be available" is relatable to Section 243 of the Act, which contemplates lapse of sanction upon expiry of two years, inter alia. Even what Section 235 of the Act contemplates is an extension of the principle in Section 243. No case is built around that the sanction being suspended as such though indeed it has been suspended, but it is to be noticed that the case of the appellant is that the construction was begun on 35 the strength of the Resolution dated 30.06.2012 and continued till 10.10.2012. It is undisputed that there was a status-quo order passed on 11.10.2012.
41. We must, in this regard, also notice that Section 238(6) contemplates the grant of a deemed sanction. Can it be said that in such a case deemed sanction would not operate in the manner contemplated in Sub Section 6 and if a person carries out construction, it would not be a case of deemed sanction where there is no action under Section 245 of the Act? We would think no.
42. We may also notice that undoubtedly on 04.07.2012, the appellant wrote to the Chief Executive Officer seeking that the copy of the Resolution dated 30.06.2012 be handed over. Undoubtedly, it was stated therein that it is required for handing over the same to the Court. There is no dispute that the Resolution in such circumstances was made over to the appellant, as evident from the communication dated 07.07.2012.
43. It is quite clear as Section 248 (1) and (2) of the Act deals with two mutually exclusive situations and Section 248(1) of the Act presupposes either there being no sanction or the sanction become lapsed or being suspended or ceasing to operate. Section 248 (2) of the Act contemplates essentially the demolition or alteration in a case where there is exercise of power under Section 58(2)(c).
36
44. There is another aspect of the matter and that is as to when exactly the construction begun and when it was completed. This has two implications. The first goes to the question as to whether the construction was done on the sanction given under Resolutions dated 30.06.2012 or 18.09.2012. The further dimension of this aspect would be on the period of twelve months within which the notice should be issued under Section 248 (1) of the Act. On the one hand, the case of the appellant is that the construction was completed by 10.10.2012, as the structure was in place and what remained was only finishing and interior works. According to the respondents, on the other hand the construction was going on during the pendency of the proceedings in the Civil Court and they would point out to the impossibility of putting up the structure having regard to the nature of structure put up within a short period between 01.07.2012 and 10.10.2012. It is pointed that even according to the appellant, it is only the structure alone which was completed and the interior works were admittedly going on. It is noted that it contemplates a situation whether there is a sanction under Sections 237 or 238 of the Act. In such a case, if the erection or re-erection of the building is completed, the person to whom the sanction is given is obliged to give a notice of completion in writing to the Officer or to the Board. On receipt of the same, he has to conduct inspection of the building. The inspection is to ensure that the construction is in accordance with the sanction. Section 246 of the Act contemplates the grant of a completion certificate upon the inspection being completed and apparently it is found that the completion is in accordance with the sanction. Section 246 of 37 the Act further provides for issuance of a certificate by the Chief Executive Officer or an Officer authorised by him that the building can be occupied, apparently described in various laws in this regard as an occupancy certificate. In this case, the case set up by the appellant in paragraph no. 15 of the writ petition is that the appellant sent letter dated 23.09.2013 under Section 242 of the Act and intimated completion of the erection/re- erection of the building along with the photographs. It is to be noted that if the construction was completed on 10.11.2012, under Section 242 of the Act, a notice is to be given within thirty days. The case set up is not compatible with the construction being completed by 10.11.2012, as the notice, though it states that the construction was completed long back, was given only on 23.09.2013.
45. It is noticed that there is a communication dated 27.07.2012 issued by the Chief Executive Officer to the appellant wherein it is stated under heading 'unauthorized construction' inter alia that the appellant had started construction of the building without prior sanction of the Board under Section 238 of the Act. The extent therein mentioned is 317.66 Sq. Mtrs. The said communication was responded by the appellant expressing surprise and further pointing out the prior sanction in the form of Resolution dated 30.06.2012. It is pointed out that the construction is being carried out within the plinth area, as per the plans submitted by them and approved by the Board. The order of status-quo admittedly continued from 11.10.2012 to 14.08.2013.
38
46. As regards the point relating to bar of twelve months, within which notice must be issued under Section 248 (1) of the Act is concerned, we are of the view that in the state of pleadings and material before us and having regard to the nature of the proceedings, we may not be justified in finding that the impugned action is not within the one year period of limitation, within which the notice has to be issued. Photographs are also made available by the respondents, based on which, it is contended that construction clearly went on beyond 10.11.2012, which we cannot ignore. No doubt photographs were made available by the appellant also. But having regard to the totality of facts, here, we may also notice another dimension, which is the contents of the order of the Hon'ble Supreme Court dismissing the Special Leave Petition, wherein, the Court took the view that the reconstruction was done on the basis of deemed sanction, we must hold against the appellant.
Orders passed by the various Courts in various proceedings restraining construction being carried out.
47. On 11.10.2012 an order of status-quo was passed that continued till the disposal of the second appeal. An application was moved by the appellant for modification of the interim order dated 11.10.2012 whereby the Court had directed maintenance of status-quo. We notice that from the order passed by this Court on 23.04.2013, appellant sought to modify the order and he undertook also to remove the construction, if the appeal is allowed. It was further contended that he be allowed to do the interior works in the building standing at the spot. This was apparently opposed, as it was pointed out that 39 the plan was rejected by the authority and the Appeal was also dismissed and there is no question of the deeming clause. The Court expressed disinclination to modify the interim order. The appeal was listed for final hearing after a period of two months. This was by order dated 23.04.2013. In paragraph no. 3 of the said order, the learned Single Judge noticed that the plan was not sanctioned. Strangely the appellant did not lay store by the Resolution dated 30.06.2012 or the further Resolution dated 18.09.2012. Even though, we notice that applications were of the year 2012, there was no argument also addressed, based on the sanction based on the aforesaid Resolutions at that stage. Thus, the interim order continued and the order of status-quo must be treated as having continued till the second appeal came to be allowed on 14.08.2013. Therefore, possibly the appellant could not have carried out any construction during that period. This Court also notes the conduct of the appellant in not seeking to place the Resolutions dated 30.06.2012 or 18.09.2012 before the Second Appellate Court. As already noticed, the second appeal was allowed and decree of the trial court was restored with the observation that if the appellant submits a fresh plan leaving fifty meters of distance from the crest of outer parapet of ITM, the same may be considered. The judgment nowhere reflects any argument based on Resolution dated 30.06.2012 or Resolution dated 18.09.2012. The appellant also filed a review application in the Second Appeal, which was dismissed on 27.08.2013. Even in the same, there is no reference to the Resolution dated 30.06.2012 or Resolution dated 18.09.2012. The appellant also filed Writ Petition (M/S) No. 118 of 2013 and the same was disposed of by 40 one of us (V.K. Bist, J.) vide judgment dated 11.06.2013. Therein, the Court was dealing with the issue relating to the order dated 16.11.2012 passed by the General Officer, Commanding-in- Chief without affording an opportunity of hearing to the appellant.
48. We notice that the learned Single Judge took note of the pendency of the second appeal and the order of status-quo. Therein, the Court further made clear that the order passed by the learned Single Judge does not permit the appellant to raise construction and the respondents were also interdicted from demolishing the constructed portion of the building. The parties were directed to obey the orders passed in the Second Appeal No. 100 of 2012. The respondents were interdicted or prevented from demolishing the constructed portion. This judgment is of 11.06.2013.
49. The further stage of litigation is before the Hon'ble Supreme Court. In the Supreme Court on 11.11.2013, the Court noted the submission of the respondents that it has no intention to demolish the building but could not approve the reconstruction done under the garb of renovation. The Board was directed to file an affidavit in this regard. More importantly, the parties were directed to maintain status-quo as obtaining on that day, for a period of three weeks and the matter stood posted to 29.11.2013. Further, we notice the order dated 21.04.2014; the Court directed that the matter be listed for final disposal on a non-miscellaneous day; the respondent- Board pointed out that the order of status-quo had expired, yet 41 the appellant is raising construction. This statement was refuted by the counsel for the petitioner, who submitted that there is no construction going on, as the construction work was already completed and the petitioner is only doing some interior work.
50. The appellant contended that the Resolution dated 30.06.2012 was revoked by the GOC originally on 16.11.2012. Subsequently, the same was challenged in a writ petition, which was disposed of, as already noticed by one of us (V.K. Bist, J.) with a direction to afford an opportunity of hearing to the appellant and take a fresh decision. According to the appellant, the appellant had issued notice under Section 242 of the Act dated 23.09.2013 signifying completion of the construction vide Annexure No. 17 to the writ petition. Therein, the appellant refers to the Resolutions dated 30.06.2012 and 18.09.2013. The further statement is that the appellant had long back completed the building reconstruction work and now only the interior work and some landscaping remains to be done. This was, in fact, stated to be with reference to the application of the appellant dated 18.06.2012 and the Resolutions, which we have already noticed. The stand taken by the appellant was as follows:
"Being given to understand that a meeting of the Cantonment Board has been called on 24.09.2013, wherein the judgment of the Hon'ble Uttarakhand High Court dated 14.08.2013 is stated to be discussed, it is necessary to bring to the notice of the Board that I have filed a Special Leave Petition against this judgment in the Hon'ble Supreme Court of India being SLP Diary No.29853 of 2013.42
It will therefore not be proper for the Board to discuss this mater whilst it is subjudice before the Hon'ble Supreme Court of India.
It is also necessary to point out that the judgment of the Hon'ble Uttarkhand High Court dated 14.08.2013 (Second Appeal No. 100 of 2012) arises in a suit relating to the 'deemed sanction' provision, and not relating to the proceedings arising out of the above mentioned Cantonment Board Landour resolutions, which remain undisturbed in view of the Hon'ble Uttarakhand High Court Order dated 11.06.2013 (Writ Petition No.118 of 2013).
51. As already noticed, the appellant had instituted a suit for injunction. This is on the basis that the appellant had the deemed sanction under Section 238(6) of the Act. In the said suit, the Court framed various issues and inter alia framed the following:
"4. Whether, the Appellant property comes under Work of Defence Act, 1903. Therefore, reconstruction on existing structure is prohibited. Therefore, the Respondents have right to interfere."
52. Answering the issue nos. 2, 3, 4 and 5, the trial court took the view that the matter, in fact, came under the deemed sanction but the application of the appellant was rejected. The trial court found that the appellant had not completed the construction/redevelopment on the basis of the plan and therefore, in the present circumstances, it will be treated as cancelled/rejected, and therefore, the appellant cannot construct or redevelop on the assumption of deemed sanction. The further findings is as follows:-
43
"It is also clear, that the disputed property attract the provisions of "Work of Defence Act, 1903".
According, to section3 of said act the disputed property is covered under the notified prohibited area. In such circumstances, till the no objection is not received from the Respondent No.1 the Defence Estate Officer, Meerut Circle, Meerut Cant, the applicant's matter will not attract the provision of 238(6) of the Cantonment Act, 2006. Because the powers to issue no objection on the disputed property is under the jurisdiction of The Defence Estate Officer, Meerut Circle, Meerut Cant as per the "Work of Defence Act, 2003". Therefore, the directions/order passed by the CEO Cantonment Board, Mussoorie datd 6.7.2011 and by the Defence Estate Officer, Meerut dated 8.12.2012 are according to the law.
There is no dispute or controversy about this fact that the provisions of "Work of Defence Act, 1903"
are applicable and the disputed property comes under the "Work of Defence Act, 1903". This court does not agree with the argument of respondent that in the cantonment area the construction is totally prohibited. The provisions of "Work of Defence Act, 1903" are applicable only when the new construction is done. In the present matter, the existed construction is 150 years old and in dilapidated condition and applicants matter relates to the redevelopment existing construction.
Based on, aforesaid argument the court is of the opinion that the disputed property is in dilapidated condition and applicants proposed construction and proposed plan are deemed sanction as per the provisions of section 238(6) of the Cantonment Act, 2006 inspite of that based on those plans applicant is not free to construct or redevelop since these plans were rejected/cancelled by the Cantonment Board on 13.12.2011 and Cantonment Board has every rights to reject/cancel the plans submitted by the applicants. The applicant's property attract the provision of "Work of Defence Act, 1903" therefore, 44 the directions/order passed by the CEO Cantonment Mussoorie dated 6.7.2011 and by The Defence Estate Officer, Meerut dated 8.12.2011 are according to the law."
53. The judgment of the trial court was passed on 26.05.2012. The appeal filed was successful but in the further appeal before this Court in Second Appeal No. 100 of 2012, the learned Single Judge refers to the rejection of the plan of the appellant. The issues were noted and two substantial questions were noted. The second substantial question of law noticed was whether the first appellate court has erred in law in not appreciating the mandatory provision of section 3 and 7 of Works of Defence Act, 1903, which imposes a restriction of any kind of construction/renovation in any building within a particular area of defence establishment. The second appeal was disposed of. In answer to the said question, the learned Single Judge held as follows :
"15. What is argued on behalf of the plaintiff/ respondent no. 1 is that correspondence made by the Cantonment Board and Defence Estate Officer suggests that a confusion has been created in respect of the fact whether the disputed construction is being raised in plot no. 157 of 157 (1). In this connection, it is further submitted that plaintiff's building is being re-constructed over plot no. 157 and it has nothing to do with plot no. 157/1.
In the opinion of this Court it hardly matters whether the construction is on plot no. 157 or plot no. 157/1 for the purposes of this case. What matters in the present case is that if the construction is within fifty meters of the crest of outer parapet of ITM (a unit of DRDO), the same cannot be allowed to be raised. Section 7 of Works of Defence Act, 1903 requires even removal of existing buildings from 45 such area. No deeming sanction under Sub-section (6) of Section 238 of the Act helps the plaintiff in the present case, as Works of Defence Act, 1903, is independent to Cantonments Act, 2006.
16. On behalf of respondent no. 1 (plaintiff) reference was made to M/s Live Oak Resort Pvt. Ltd. vs. Panchgani Hills AIR 2001 SC 3478, Hero Vinoth vs. Seshammal 2006 (2) ARC 535 and Vishwanath Goyal vs Cantonment Board AIR 1987 All. 4, and it is contended that since deemed sanction exists in favour of the plaintiff under Section 238 (6) Cantonments Act 2006, as such the defendants including the appellant has no right to stop the re-construction work. I have gone through the aforesaid case laws. In the above mentioned referred cases there was no issue relating to the construction over the are notified under section 3 of Works of Defence Act, 1903, as such the same are of little help to the plaintiff in the present case.
17. Substantial question of law no. 2 stands answered accordingly in favour of the appellant (defendant no. 1).
Thereafter, the appellant was permitted to give a fresh plan leaving 50 meters of distance from the crest of outer parapet of ITM.
54. As already noticed, the review application filed against the same was dismissed.
55. The Hon'ble Apex Court disposed of the Special Leave Petitions as follows:
"In view of the extensive hearing that has taken place we have considered it necessary to support our reasons to dismiss the Special Leave Petition with adequate reasons.46
The petitioner before this Court is the plaintiff in Suit No. 249 of 2011 seeking the relief of permanent injunction in a situation where he had reconstructed the premises in question by assuming that the failure of the concerned Authority to sanction the building plan within the stipulated time amounted to a deemed sanction of such plan. Though the building permission was rejected subsequently and such rejection was brought on record by an amendment of the plaint, no relief of declaration in respect of the rejection of the building plan was sought.
The Cantonment Board in the written statement took a specific plea that the property in question was covered by Notification issued under Section 3 of the Works of Defence Act, 2003 which prohibited construction within fifty (50) meters from the crest of outer parapet of Institute of Technology Management, Landour Cantonment, Mussoorie in the State of Uttarakhand.
In view of the specific case of the Cantonment Board as taken in Paragraph 21 of the written statement, it was obligatory on the part of the plaintiff to plead and establish that the suit property was not within the prohibited zone as contemplated by the aforesaid Notification under Section 3 of the Works of Defence Act, 2003. There is no pleading much less any evidence or material to the aforesaid effect. In the absence of such pleadings and/or evidence to prove that the suit property did not come within the ambit of the Notification in question the relief of permanent injunction which would enable the plaintiff to go ahead with the reconstruction was rightly refused by the High Court in Second Appeal.
Though a number of other contentions have been advanced on behalf of the petitioner plaintiff including the ambiguity in the description of the suit property i.e. Plot No. 157 or 157/1 in some of the correspondences, we are of the view that the core issue in the case being what has been indicated above, the aforesaid arguments advanced on behalf of the petitioner is inconsequential and insignificant 47 to require any specific answer by the Court. We, therefore, dismiss the Special Leave Petitions.
We are told that the petitioner has challenged the Notification under Section 3 of the Works of Defence Act, 1903 before the High Court on the ground that the said Notification had lapsed. Naturally, the dismissal of the present Special Leave Petitions will not come in the way of the adjudication of the Writ Petition(s) filed by the petitioner in accordance with law.
In view of the fact that the Special Leave Petitions are disposed of, all interim orders/undertakings etc. shall stand discharged."
56. It is clear that after 10.11.2012, even according to the appellant's showing, appellant was disabled from carrying out construction by virtue of the order dated 10.11.2012 passed in the second appeal. Equally, the appellant could not possibly have continued with the construction, having regard to the cancellation of the order passed by the GOC on 16.11.2012. Still further, the appellant was disabled from carrying out construction in view of the order passed by the learned Single Judge of this Court, one of us (V.K. Bist, J.), vide judgment dated 11.06.2013 in Writ Petition (M/S) No. 118 of 2013.
57. From this, it is crystal clear that the finding has become final that the construction, which has been carried out by the appellant is in the teeth of the prohibition contained in the Works of Defence Act, 1903. We must also notice that though it is a case where the Special Leave Petition was rejected, it was supported by reasons. The order shows that the appellant was described as a plaintiff in a suit for injunction in a situation where he had reconstructed the premises in question by 48 assuming that the failure of the concerned authority to sanction the plan within the stipulated time amounted to a deemed sanction of such plan. Thus, the case of the appellant, as shown in the order of the Hon'ble Supreme Court is that he has reconstructed the premises on the basis of the deemed sanction. This is clearly inconsistent with the case of the appellant that the reconstruction was done on the basis of sanction in terms of the Resolutions dated 30.06.2012 and 18.09.2012. No doubt, the learned senior counsel for the appellant did draw our attention to the Resolution dated 30.06.2012 to contend that it would show that the site was vacant as on the date of the Resolution and, therefore, it probabilize the case of the appellant that the construction took place based on the Resolution dated 30.06.2012.
58. In view of this, we find it difficult to enter finding that appellant had indeed begun, continued and completed construction, as canvassed by him by commencing the construction, in July 2012 and completing it in October, 2012. It is to be noted that in the Writ Petition, appellant has produced the joint inspection report. In the joint inspection report also, among other things, it is mentioned that the Board had physically measured the distance of reconstruction of site from the boundary of ITM Mussoorie, which was found to be 32.8 meters. In regard to the said inspection report, what is stated by the appellant in paragraph no. 17 of the writ petition is as follows:
"17. That in compliance of the intimation given by the Petitioner, the President Cantt. Board has sent its team which consists of presiding 49 officer and members, who have inspected the building on 18.10.2013 and given finding that construction of the building externally is complete up to roof level. But the respondent no. 4 has not issued completion certificate as required under Section 242 of the Cantonment Act, 2006. A true copy of inspection report dated 18.10.2013 carried out U/S 242 of the Act along with photographs are being filed herewith and marked as Annexure-19.
59. No doubt, in the said inspection report, it is also mentioned that the construction of the building externally is completed up to the roof top. This inspection was carried out on 18.10.2013. What is significant is that in the writ petition, the appellant does not question the correctness of the finding in the inspection report that the construction is found to be 32.8 meters and therefore is within 50 meters of the boundary of the ITM, Mussoorie. The appellant, in the writ petition, does not expressly challenge the finding, in the inspection report, that it is within 32.8 meters. It is, no doubt, true that in the appeal, the appellant sought to contend that construction was beyond 50 meters. In fact, the appellant was even prepared to take out the commission. No doubt, the appellant also has a case that the extent of the unauthorized construction has also been enhanced without basis. We do not think that the appellant should be permitted to take such a contention, particularly, having regard to the litigation culminating in the order of the Hon'ble Supreme Court and the following circumstances:
60. The respondents have filed counter affidavit in the Appeal. Therein, it is, inter alia, stated on the one hand that the 50 photographs along with the reports of Junior Engineer of the Cantonment Board filed in the second appellate stage as well as in the civil contempt is showing that the illegal construction activity was started on 19.03.2012 which continued even till the orders were passed in the contempt petition no. 336 of 2014 on 25.11.2014. It is further stated that the complete illegal construction was done by the present appellant in gross violation of law and courts order which comes in total 28045.57 Sq. Ft. as constructed area, whereas the plan submitted by him and forwarded by the then CEO to the competent authorities for getting NOC was only for 8607.43 Sq. Ft. (see paragraph no.4)
61. We also, however, see the following:
"Further, after the judgment of Hon'ble High Court passed in second appeal which is also confirmed by the Hon'ble Supreme Court with the strict findings regarding the property in question, these resolutions have no legal effect. Further more it is needful to clarify here that the letter dated 18.06.2012 given by the appellant on the basis of which resolution dated 30.06.2012 and 18.09.2012 came into existence, itself shows admission on the part of appellant that his building No. 1 (Main Building) is within the 50 metres of the restricted area under Works of Defence Act. Further in the garb of this letter as well as consequential resolutions above mentioned he raised a very huge illegal construction which is the suit property also and comes within the restricted area. A copy of the letter dated 18.06.2012 as well as resolution dated 30.06.2012 is filed here as Annexure - CA11 and CA12 to this application. Resolution dated 18.09.2012 is already enclosed with appeal."
(see paragraph no. 24) 51
62. A reading of Section 247 and Section 248 would show that under Section 247, it is an offence to begin, continue or complete the erection or re-erection of a building without giving a valid notice under Section 235 and Section 236 or before the building has been sanctioned or is deemed to have been sanctioned. As far as the case based on deemed sanction is concerned, we need not be detained by it in view of the orders passed emanating from the Civil Suit filed by the appellant. There is a definite case for the respondents that the illegal construction activity was started on 19.03.2012 and it continued till the orders were passed in the contempt petition no. 336 of 2014 on 25.11.2014. We have also noticed the further case of the respondents that under the garb of the letter dated 18.06.2012 as well as the Resolutions dated 30.06.2012 and 18.09.2012, the appellant has raised a very huge illegal construction and the same comes within the restricted area.
63. On the other hand, the case of the appellant is that the construction was commenced only on the basis of the Resolution dated 30.06.2012 and the structure was complete by 10.11.2012. Apparently, the appellant is referring to the construction having ended on 10.11.2012 as an order of status- quo was passed on 11.11.2012. We may also notice that in the counter affidavit of the respondents, in fact, it is submitted that the appellant obtained interim injunction only for a total of 31 days in two segments i.e. firstly from 26.03.2012 till 04.04.2012 and secondly from 21.09.2012 till 11.10.2012. We may also notice, no doubt, that the appellant does seek to draw support from the statement in the Resolution dated 30.06.2012 that the 52 site was vacant and this is done to contend apparently, having regard to the effect of Section 247, which makes it an offence to begin or continue besides, of course, complete any construction or reconstruction without either applying for sanction or without actually getting the sanction. It would, therefore, be an offence even if the appellant had begun the construction even before the sanction dated 30.06.2012 was given.
64. In the layout plan produced by appellant, for which, apparently, sanction was sought, the existing plinth area was shown as 8635.52. Sq. ft. The main house was shown as building no. 1; the second building was shown as the cottage; the third building was shown as the cook house; the fourth building was shown as the store, which is shown as demolished; the fifth building is shown as the latrine and the sixth building is shown as the servants quarters below. In the same, the main house was shown as having 4498.37 Sq. ft.; the cottage was shown as having 844.06 Sq. ft.; the cook house was shown as having 105.14 Sq. ft.; the store was shown as having 117.80 Sq. ft.; the latrine was shown as having 120.29 Sq. ft. and the servants quarters below was shown as having 2949.86 Sq. ft.
65. In Annexure no. 2 notice issued under Section 248, the total unauthorized construction undertaken by the occupier in contravention of Section 247 is shown as follows:
Details of unauthorized construction undertaken by occupier in contravention of Section 247 of the Act (in Sq.ft.) A-Buildings
1. Main Building (Building No. 1) 12189.58 (Basement + G.F. + F.F)
2. Cottage (Building No. 2) 2381.97 (Basement + 53 G.F. + F.F)
3. Cook House (Building No. 3) 809.02 (G.F.)
4. Temp. Toilet (Building No. 5) 80.00 (G.F.)
5. Servant Quarter (Building No. 6) 3061.93 Total 18522.50 B- Additional Construction work excluding buildings
1. Swimming Pool 1103.42
2. Zig Zag Pond / Pool Designer Shape 478.56 (South-East to cook house)
3. Pond/Pool 463.23 RCC Wall covered adjacent parallel to North wall of Servant Qtr.
Total 2015.21 C- Rooms Developed below Tennis Court
1. Rooms Developed below Tennis 7477.86 Court (Basement + G.F.) G/Total (A+B+C) 28045.57
66. No doubt, the learned senior counsel for the appellant has a case that the building plans are sanctioned, which is the area of the building at the ground level and after the construction, there is no increase in the same. It is their case that the plinth area is exactly as per the plans and the permitted basement; ground floor and first floor are also shown as per the sanctioned plan. But, we think that the method adopted by the cantonment board in calculating the area cannot be faulted with. Therefore, there is excess construction.
67. Further, a perusal of Annexure No. 11 Resolution dated 20.03.2012 shows that it provided as follows:
"REPAIR OF TENNIS COURT To consider the application of Shri Sanjay Narang regarding basic repair of Tennis Court of Dhalia Bank comprising GLR Survey No. 157, Landour Cantt.54
The application is placed on the table.
RESOLUTION Considered and matter discussed in detail it was highlighted that only basic repair of existing structure of Tennis Court can be carried out so that there is no danger to the passerby. However, dissenting view was given by Shri C.P. Baloni, Vice-President, Cantt. Board, Landour & Smt. Munni Devi, Member, Cantt. Board, Landour. However, for re-erection, renovation, addition/alteration of existing building cannot be allowed without NOC from DEO Meerut, ITM Landour Cantt. LMA, was clarified by the CEO.
The subject point was put to vote, the CEO, GE (R&D), Nominate Member and 3 Elected Members voted in faovur of permitting only basic repair of Tennis Court. Shri C.P.Baloni, Vice-President, Cantt. Board, Landour and Smt. Munni Devi, Member, Cantt. Board, Landour voted against it. The agenda point was therefore passed by the majority."
68. However, a perusal of Annexure No. 2 notice shows that under the head 'Rooms Developed below Tennis Court', the extent of unauthorized construction comes as 7477.86 Sq. Ft. i.e. basement plus ground floor.
69. A perusal of Annexure No. 11 Resolution dated 20.03.2012 would show that the subject was, in fact, regarding basic repair of Tennis Court and the same was put to Board and the agenda point was passed by majority. The view of the majority would appear to be that the CEO, GE (R&D), Nominate Member and 3 Elected Members voted in favour and permitted only basic repair of Tennis Court, whereas, Shri C.P. 55 Baloni, Vice President, Cantonment Board, Landour and Smt. Munni Devi, Member, Cantonment Board voted against it and, as noted, the agenda point was passed by majority. The case set up by the appellant in paragraph no. 7 of the writ petition would appear to be that all the proposed plan for erection/re- erection submitted by the petitioner was passed by majority vote. This case of the appellant cannot, at all, be accepted. If that is so, it is quite clear that the construction in respect of the rooms under the Tennis Court was carried out without any sanction and it was unauthorized. It is not clearly stated as to when the construction of the portion below the Tennis Court, which is shown as unauthorized is completed.
70. In regard to the Tennis Court, we notice that in Annexure 20 reply to the writ petition, it is stated as follows:
"C- Room Developed below Tennis Court 7,477.86 sq.ft. The Tennis Court structure is of exactly the same dimension in length, width and height, as the old existing tennis court structure, which has been shown on the joint measurement survey plan/report carried out by DEO Meerut and CEO Landour on 06.02.2010. The room below the structure is also shown on both the joint survey plan of the old tennis court structure, as well as the sanctioned plan by the CEO Cantonment Board Landour."
There is no case, as to when the construction was made. No case of limitation is raised in the reply.
71. We may also remind ourselves that in the letter dated 18.06.2012, which is the basis for the Resolution dated 30.06.2012 and 18.09.2012, the appellant has categorically stated "we further add that only building no. 1, as shown in the plan 56 for approval submitted by us lies within the 50 meters restricted area. The area of Dahlia Bank shaded in blue in the plan attached as Annexure 1, lies beyond 50 mtrs from the ITM boundary, hence these structures (i.e. building No. 2 and No. 6 which are located beyond 50 mtrs) do not require ITM's NOC for reconstruction. Therefore there is absolutely no reason or basis for the Cantonment Board to withhold approval for the reconstruction of these structures." Therefore, we cannot possibly find that it is beyond 50 meters. Therefore, the case of the appellant would appear to be that portion shown as building no. 2 cottage and building no. 6 servant quarters, which is located below the main house was beyond 50 meters. It is to be noted that actually from the layout plan, the cottage and the servant quarters are shown as part of the main building as per the proposed plan.
72. From the orders of the Hon'ble Apex Court, what is gathered is that the appellate court has understood the case of the appellant that he has reconstructed the building on the basis of the deemed sanction. It is to be noted that, originally, the Resolution was passed on 30.06.2012, wherein the subject point was the building plan submitted dated 18.06.2012. 73 In regard to the swimming pools and ponds, the case set up in Annexure No. 20 is that the ponds existed prior to the re- erection and they do not fall under Section 82 or Section 235 of the Act, as they are located within the ground. In regard to the additional construction work excluding the building shown in Annexure no. 2, we have noticed the stand of the appellant, 57 namely, that it does not fall under Section 82 of Section 235 of the Act, apparently, meaning thereby that it is not a building. Building is defined in the Act as follows:
"2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,--
(a) ........
(b) ........
(c) ........
(d) "building" means a house, outhouse, stable, latrine, shed, hut or other roofed structure whether of masonry, brick, wood, mud, metal or other material, and any part thereof, and includes a well and a wall other than a boundary wall but does not include a tent or other portable and temporary shelter."
74. No doubt, incidentally, we may notice Section 249(1) of the Act, which provides as follows:
"249. Power to seal unauthorised constructions.--
(1) It shall be lawful for the Chief Executive Officer, at any time, before or after making an order of demolition under section 248 or of the stoppage of erection of any building, or execution of any work, to make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried on or has been completed at the cost of the offender in such manner as may be prescribed by rules for the purpose of carrying out the provisions of this Act or for preventing any dispute as to the nature and extent of such erection or work."
75. Equally, under Section 239 of the Act, the Legislature has provided for stoppage of building or works. In fact, under Section 238, which deals with the power of the Board to refuse or sanction, with conditions in respect of matters including free passage or way to be left in front of the building; the space to be left about the building; the provision and position of drains, latrines, urinals, cesspools or other receptacles for filth and any 58 other matter affecting the ventilation and sanitation of the buildings. But when it comes to Section 248, it is the word 'building' which is used and there is no reference to works and any work which is mentioned in Section 239 and 249 also.
76. We would think that, admittedly, the plan (Annexure No. 10 to the writ petition) did not contain any mention even of the pond or the swimming pool. Therefore, it is clear that there is no sanction for these structures. From a perusal of the expression 'building', prima facie, we would think that while it includes a house, outhouse, stable, latrine, shed, hut or other roofed structure of whatever material as provided therein, it also provides any part thereof would qualify as a building. In regard to the pond and swimming pool, we are not in a position to find whether it is a part of the building as such. We also notice that in Annexure No. 2 notice, they are described under the heading structures other than buildings. We would think that in regard to these structures, if they are put up beyond 50 meters of the prohibited distance under the Works of Defence Act, 1903, the matter may require reconsideration. Therefore, the impugned decision, only to the extent that it relates to the structures shown as ponds and swimming pools having shown total extent of 2015.21 Sq.Ft., must be redone.
77. No doubt, as far as building nos. 2 and 6 are concerned, the appellant did have a case in letter dated 18.06.2012 that they are beyond 50 meters structures under the Works of Defence Act, 1903. We have noticed from the plan that building no. 2 is a cottage; it is a part of the main building, the servant quarters 59 are also located below the main building. In regard to building nos. 2 and 6, we cannot find that the construction of the same has been completed pursuant to the Resolution dated 30.06.2012. It is also to be noted that, originally, the sanction dated 30.6.2012 was understood as not a complete sanction, as applied for. It is only on 18.09.2012, on the request of five elected members and the Vice President dated 23.08.2012 for rectification of the Resolution, that the Resolution dated 18.09.2012 came to be passed, wherein we notice it was stated as follows:
"The PCB said that in view of the HQ Central Command letter No. 260502/Landour/B No157/Q3L dated 30 Aug 12 issue needs to be discussed as PCB I can allow this point to be discussed in the meeting. Then Shri C.P. Baloni, Vice-President raised issue that their letter dated 23.08.2012 be placed before the Board. The Elected Member stated that we have passed Additional Agenda No. 1 dated 30.06.2012 including Main Building and PCB supported their views. Thus resolution was passed by majority.
CEO, Col.S.S Dhillon Nominated Member, Shri Ramjisharan Sharma, SDM Mussoorie, Nominated Member dissented from the view of Elected Member and PCB. CEO informed the President and the Board that he is sending his dissent under Section 56(4) of the Cantonments Act, 2006."
78. Can it be said that the construction, which was allegedly commenced based on Resolution dated 30.06.2012, could relate to matters, which were not covered by the Resolution dated 30.06.2012. This is besides the case seemingly set up before the Hon'ble Supreme Court, namely, that the building was reconstructed based on the deemed sanctions. No case based on the sanctions dated 30.06.2012 and 18.09.2012, as is sought to be 60 set up before us, is seen set up before the Hon'ble Supreme Court. Therefore, we cannot find that the action taken under Section 248(1) is liable to be interfered with
79. We have already noticed the findings of the Civil Court right up to the Hon'ble Apex Court. Power under Article 226 of the Constitution of India is discretionary.
80. The appellant originally filed an application purporting to be under Section 235 of the Act seeking sanction under Section 238 of the Act accompanied by various plans allegedly. Eliciting no response either by way of sanctioning or rejecting and contending that there was deemed sanction under Section 238(6) of the Act, the appellant filed a civil suit. It is while so that the appellant writes letter dated 18.06.2012 along with plans. In the said plan, the appellant refers to the blue shaded portion. That plan has been produced along with the list of documents produced by the appellant before us. It was the said plan that led to the Resolution dated 30.06.2012. It was stated in the letter dated 18.06.2012, which is the foundation for the Resolutions dated 30.06.2012 and 18.09.2012, that area of the property shaded in blue in the plan attached as Annexure 1 lies beyond 50 meters from the ITM boundary. It was specifically stated that therefore, these structures, namely, Building no. 2 and Building no. 6, which are located beyond 50 meters, do not require ITM's NOC for reconstruction. It was further stated that therefore, there is absolutely no reason or basis for the Board to withhold approval for the reconstruction of these structures.
61
81. It is, thereafter, that a Resolution was passed on 30.06.2012 wherein we notice that PCB, who is none other than the Commanding Officer, Officer In Charge of the Board took the stand that the portion of Survey No. 157 i.e. Cottage no. 2 of the building outside 50 meters of the ITM, is dangerous to Woodstock School and people walking in Tehri Road and may be allowed to be repaired. It is further stated that the PCB said only the Cottage outside restricted area may be allowed to be repaired and further it is stated that six elected members voted in favour and the Resolution was passed.
82. It is thereafter, that six elected members pointed out that they had apparently approved the repair/reconstruction plan, as applied for in the year 2009; whereas, it is wrongly written that the Board had approved only the plan in regard to Cottage No. 2. No doubt, it is stated that the elected members stated that they had passed the Resolution including the main building. From the Resolution, we also, no doubt, find in fact, that the PCB supported their views and the Resolution was passed by a majority. It is to be noted that this is at the time when the judgment of the trial court was holding the field. The First Appellate Court's judgment was pronounced on 21.09.2012.
83. There is a case based on Section 237 of the Act, in that, there is no power with the Chief Executive Officer to issue the notice. (apparently, Annexure no. 2). Section 237 of the Act reads as follows:
62
"237. Powers of Board under certain sections exercisable by Chief Executive Officer.--The powers, duties and functions of the Board under section 238, sub- section (1) of section 241 section 243, section 245 and section 248 excluding the provisions to sub-section (1) and the proviso to sub-section (2) of the said section 248 shall be exercised or discharged in a civil area by the Chief Executive Officer."
84. We have already referred to Section 234 of the Act, out of deference to the contention that being an area other than the civil area, the sanction is to be that of the Board. As far as Section 237 of the Act is concerned, no doubt it refers to powers of the Board under Section 248(1) not being available to the Chief Executive Officer. However, it is clear on a perusal of Annexure No. 3 that the Board had considered and resolved to issue notices under Section 248(1) for demolishing the unauthorized construction. The Board decision is dated 08.11.2014. The C.E.O., only issued Annexure no. 2 notice dated 10.11.2014 apparently acting on the basis of the decision of the Board. Therefore, there is absolutely no merit in the contention based on Section 237 of the Act.
85. The case based on Section 44 of the Act, which provides that meetings of the Board shall be open to the public unless in any case the person presiding over the meeting, for reasons to be recorded in the minutes, otherwise directs, clearly does not appeal to us as sufficient to interfere in the matter.
86. We also notice the fact that in the Second Appeal, the Court found that the provisions relating to Works of Defence Act, 1903 were indeed attracted and the appellant was in fact, 63 left free to put up the building without violating the Act. The findings in the Second Appeal admittedly bind the appellant. So also the order of Hon'ble Supreme Court.
87. Allowing the appellant to succeed in Article 226 of the Constitution of India, in the background of these facts may not be apposite, having regard to the discretion involved in the nature of the jurisdiction. It is to be mentioned that the appellant did not bring the Resolution dated 30.06.2012 or the Resolution dated 18.09.2012 to the notice of the Second Appellate Court. It is true that the suit was one for injunction but appellant cannot extricate himself from the findings that the construction falls foul of the Works of Defence Act, 1903.
88. It may be true that before issuing notices, the appellant was not heard. Ordinarily, we may have gone into the matter, but in the facts of this case, as we have found that at least, as per construction, which is found to be in violation of the Works of Defence Act, 1903, it certainly cannot be allowed to continue and compliance of principles of natural justice was not required. Furthermore, the matter was heard fairly elaborately before this Court. Also, we have dealt with the case of unauthorized construction, as found in Annexure No. 2 with reference to appellant's case as set up in letter dated 18.06.2012 as also Annexure No. 20 reply besides the orders of the Courts including the Hon'ble Supreme Court.
89. Therefore, in the facts of this case, it is quite clear that the matter relating to violation of Works of Defence Act, 1903 has become final, subject, no doubt, to the matter being left open by 64 the Hon'ble Apex Court itself in the further writ petition filed by the appellant. We have also noticed the findings of the Hon'ble Apex Court. We also reiterate that we cannot find that the appellant has been able to establish that the constructions were made, as contended by him after 30.06.2012 and by 10.11.2012. It must be remembered that Section 247 of the Act makes it an offence to commence, continue or complete construction, inter alia, without sanction.
90. In such circumstances, the appeal will stand partly allowed as follows:
(i) The impugned decisions to the extent, it relates to the structures shown as pools and ponds in Annexure no. 2 notice will stand quashed. In regard to the same, after affording an opportunity of hearing to the appellant, a decision will be taken in accordance with law, bearing in mind the observations made by us.
(ii) We also make it clear that this judgment will not stand in the way of the appellant making application in terms of the observations contained in the judgment dated 14.08.2013 passed in Second Appeal No. 100 of 2012.
In regard to all other matters, the appeal will stand dismissed without any order as to cost.
(V.K. Bist, J.) (K.M. Joseph, C. J.)
05.09.2017 05.09.2017
Rahul