Telangana High Court
Shri.M.Ashok vs The Sccunderabad Cantonment Board on 2 May, 2025
THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA
CITY CIVIL COURT APPEAL No.221 OF 2019
JUDGMENT:
This is an appeal filed by the appellants, being aggrieved by the judgment and decree, dated 26.10.2018 passed in O.S.No.117 of 2012 by the learned I Additional Chief Judge, City Civil Court, Secunderabad (for short "the trial Court").
2. The appellants herein are the plaintiffs and the respondent is the defendant before the trial Court. The parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.
3. The case of the plaintiffs before the trial Court is that plaintiffs have entered into a Development Agreement - cum - Irrevocable General Power of Attorney in favour of M/s.Maha Laxmi Homes, represented by its proprietor Sri P.Srinivas in respect of plot No.26, survey Nos.67 and 69 admeasuring 550 Sq.yards situated at LIC Colony, Boosareddyguda of Bholakpur village, Secunderabad Cantonment vide document No.701 of 2011 dated 27.05.2011. It is further averred that there was an error in the said development agreement and thus they got a rectification deed registered vide document No.768 of 2011 dated ETD,J CCCA No.221_2019 2 09.06.2011 and that they intended to construct a residential complex and obtained sanction from the defendant vide board resolution No.16(38) dated 08.12.2009 for construction of Stilt, Ground and two floors and after intimating the defendant they commenced construction without any deviation or violation of rules but that the defendant has issued a notice under section 248(1) of Cantonment Act (for short "the Act"), dated 28.08.2010 asking the plaintiffs to remove unauthorized construction within a period of 30 days, saying that the constructions undertaken by the plaintiffs are in contravention of Section 247 of the Act. It is their case that the plaintiffs have preferred an appeal against the said notice before the appellate authority, Pune and that the same is pending. During the pendency of the said appeal, the defendant had issued a final notice under Section 320 of the Act on 10.05.2012 asking to demolish and remove the unauthorized construction within eight days of the receipt of notice. Thus, the plaintiffs have filed a suit stating that without giving any opportunity to the plaintiffs for availing any remedy from the appellate authority, the defendant has issued final notice and that they have not committed any violation of the Act. It is further contended by the plaintiff that if at all there are any deviations, they can be condoned by collecting compounding fee ETD,J CCCA No.221_2019 3 by the cantonment authority. Hence, they filed a suit seeking declaration of the notice issued under Section 320 of the Act to be null and void and also for granting perpetual injunction against the defendant.
4. The defendant has filed a written statement denying the plaint averments. They contended that the suit is liable to be rejected under Order VII rule 11 of CPC as it is filed during the pendency of the appeal and that before instituting the suit the plaintiffs have not issued notice under 339 of the Act to the defendant and they did not adhere to any guidelines and that the plaintiffs failed to maintain requisite setbacks and that they have exceeded the permissible floor area and extended the construction on all the sides and that the plaintiffs are constructing apartments by obtaining permission for residential flats and that after inspecting the premises, the defendant got issued the show cause notice on 22.05.2010 to stop the construction and that as the plaintiffs did not respond to the same, they have issued another notice on 28.08.2010 and that taking advantage of the appeal filed by them, the plaintiffs are proceeding with the construction and the notice under challenge in the appeal was not suspended by the appellate authority. They further contended that the plaintiffs have filed the present ETD,J CCCA No.221_2019 4 suit with all false allegations suppressing the material facts. The defendant has further alleged that there is a specific bar to file suit under Section 250 of the Act and thus, the plaintiffs are violating the guidelines while making constructions, they got issued notice to the plaintiffs based on a complaint lodged by one B.Gowri Shanker Yadav and that their officials were acting as per the rules. The defendant by raising all these contentions has prayed to dismiss the suit.
5. Based on the above pleadings, the trial Court has framed the following points for consideration:
"1) Whether the plaintiffs are entitled for the relief of declaration of the notice issued under Section 320 of the Cantonment Board as null and void?
2) Whether the plaintiffs are entitled for grant of perpetual injunction, as prayed for?
3) To what relief?"
6. At the time of trial, plaintiffs got examined their GPA holder as PW1 and got marked Exs.A1 to A9. On behalf of the defendant, DW1 was examined and Exs.B1 to B6 were marked.
7. Considering the evidence on record, the trial Court has dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed by the plaintiffs.
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8. Heard the submissions of Sri Ch.Venu Kumar, learned counsel for the appellants and Sri K.R.Koteswara Rao, learned Standing Counsel for the respondent.
9. The learned appellants counsel has submitted that the judgment of the trial Court is against the legal principles of natural justice, good conscience and equity. He further submitted that the trial Court has lost sight of the pleadings and the evidence borne on record and has erroneously dismissed the suit and that the trial Court failed to appreciate the evidence in proper perspective. He further argued that the notice under Ex.A8 is bound to be declared as null and void but the trial Court failed to do so. He argued that the issuance of notice under Ex.A8 while the appeal is pending is atrocious and that the board has abused its power and did not follow the procedure contemplated under the Act, 2006 and thus, questioning the impugned notice under section 320 of the Act, 2006 is just and sustainable. He therefore, submitted that the high handed action of the cantonment authorities have to be curtailed and therefore, the trial Court ought to have decreed the suit. He therefore, prayed this court to set aside the judgment and decree of the trial court by allowing this appeal.
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10. The learned respondent counsel has submitted that the appellants herein who are the plaintiffs before the trial court have proceeded with construction with too many deviations and it cannot be regularized, and that if there are minor deviations they can be condoned by collecting a compound fee but when there are too many deviations they cannot be regularized under Section 248 of Cantonment Act. He argued that they have not followed the guidelines with regard to the set back area and violated the bylaws and also without any regularization they constructed two more floors and instead of one unit in each floor they constructed four units and against the permissible construction of 7,420 sft they constructed 12,261 sft and he further submitted that the regularization provided under Section 248 of cantonment board is not mandatory and that only if there are minor deviations they can regulate but not otherwise.
11. The appellants contention is that many other buildings are constructed with deviations and that the board with wide discretion has condoned them by collecting compound fee but the respondent counsel has argued that the violations are too many in this case and thus, they are not inclined to regularize the same.
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11. Based on the above rival submissions, this Court frames the following points for consideration:
1) Whether the notice issued by the defendant under Section 320 of the Act dated 10.05.2012 can be declared as null and void?
2) Whether the plaintiffs are entitled to permanent injunction restraining the defendant from demolishing the existing structures standing on the suit schedule property?
3) Whether the judgment and decree of the trial Court are sustainable under law and in the facts?
4) To what relief?
12. POINT NOs.1 AND 2:
a) The case of the plaintiffs is that they entered into a development agreement and have obtained necessary permission and have also intimated the defendant about their construction and that they have proceeded with construction without any deviations but the cantonment board has issued notice to them stating that the construction undertaken by the plaintiffs are in contravention of Section 247 of the Act.
b) To prove their case, the plaintiff relied upon Exs.A1 to A9.
Ex.A5 is the Xerox copy of the sanction plan dated 08.12.2009.
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c) PW1 in his cross examination has admitted that they have obtained sanction from the defendant board on 08.12.2009 for construction of residential building consisting of stilt floor for parking and ground, first and second floors are residential units and that the plan obtained is on plot No.26 LIC colony and the extent of plot is 550 sq.yards. He further admitted that as per the plan, the plaintiffs were permitted to construct one residential unit in each floor and the permissible floor area in each floor from stilt to second floor is 1855 sft per floor and total floor area of all the floors has to be 7420 sft. He also admitted that the frontage of the building is 9.6 feet. He further admitted that on western side of the plot major portion is shown as open space and the same is not a part of built up area. He also admitted that the building's sanction was obtained by plaintiff on 08.12.2009 which was released on 26.02.2010, whereas the development agreement by plaintiff with PW1 was on 21.05.2000. He further admitted that the sanction accorded by the defendant vide CBR No.16 (38) dated 08.12.2009 is for a period of two years from the date of sanction and as per the clause of the plan, if the building is not completed within two years, the sanction will be lapsed. He also admitted that subsequent to Ex.A1, dt.27.05.2011 the plaintiff did not make any application to the board to ETD,J CCCA No.221_2019 9 extend the sanction period for completion of the construction. Thus, it is elicited through his evidence that the development agreement was entered prior to obtaining sanction. It is also elicited that the sanction will be only for a period of two years and after the period getting lapsed they have not sought for any further extension of sanction. He further admitted that as per Clause-4 of the Development Agreement, the total extent of construction proposed to raise is 12,576 sft having 50/50 ratio between land owners and developers and that in each floor they constructed four flats that is ground plus two floors and the total number of flats in three floors are 12 flats and one pent house. This admission of plaintiff falsifies his contention that their construction is as per the sanction. He has admitted that as per the sanctioned plan one unit per floor would be constructed and also that total floor area construction would be 7,420 sft but that their development agreement refers to a total area of construction to the extent of 12576 sft and he also admitted that they have constructed 12 flats + one pent house in three floors which is totally against the sanction. Thus, these clauses in Ex.A1/development agreement in comparison with that of the sanction under Ex.A5 reveals the said deviations. It is further elicited from him that they have not submitted any letter to ETD,J CCCA No.221_2019 10 cantonment board indicating the completion of construction by a particular date with a request to issue an occupancy certificate to induct the prospective purchasers into their respective flats. He admitted that the cantonment board has issued criminal show cause notice to the plaintiffs to stop construction in the stilt floor and instructed to submit a written reply within three days and that the plaintiffs have not issued any reply to the said show cause notice dated 22.05.2010. PW1 says that he has no idea whether the plaintiffs have proceeded with the further construction from stilt floor. He is the GPA holder of the plaintiffs and further his identity is revealed as the proprietor of M/s.Mahalaxmi Homes and he is none other than the developer. His answer stating that he has no idea whether the plaintiffs have proceeded with further construction defeats the genuineness of the plaintiffs case and it is also evident as per the record that though notice was issued while the stilt floor was under construction, the plaintiffs proceeded and completed the construction. It is further elicited through him that there was a status-quo order granted by the Court on 29.06.2012 and that as on the said date Ex.A1 i.e. the development agreement is in force which was executed on 27.05.2011 and that he proceeded with construction during the pendency of the suit even though there ETD,J CCCA No.221_2019 11 was status-quo order in force. It is a fact borne out by record that the plaintiffs proceeded with the construction and completed it during the pendency of the suit. He further admitted that the appeal before the appellate authority filed by them under Section 248(1) of the Act is still pending and that during the pendency of the appeal they filed the present suit and also that they have not obtained any interim suspension of the notice dated 28.08.2010. He also admitted that just because they proceeded with construction during the pendency of appeal the cantonment board has issued final notice under Section 320 of the Act. He admitted the photographs of the suit schedule property shown to him and on his admission Exs.B1 to B3 were marked.
d) A perusal of the said photographs reveals that they pertain to the constructions held in the suit schedule property. Thus, the evidence of PW1 itself is enough to dislodge the case of the plaintiffs. In order to seek the notice to be null and void, the plaintiffs have to prove that the notice issued under Section 320 of the Act was not justified and that the plaintiffs have not committed any violations of the sanction that is obtained by them.
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e) It is pertinent to refer to Section 320 of the Act and the same is extracted hereunder:
"320. Powers of Board in case of non-compliance with notice, etc.--In the event of non-compliance with the terms of any notice, order or requisition issued to any person under this Act or any rule or bye-law made thereunder, requiring such person to execute any work or to do any act, it shall be lawful for the Board, or the civil area committee or the Chief Executive Officer at whose instance the notice, order or requisition has been issued whether or not the person in default is liable to punishment for such default or has been prosecuted or sentenced to any punishment therefor, after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the act or work required to be done or executed by him, and all the expenses incurred on such account shall be recoverable by the Chief Executive Officer on demand, and if not paid within ten days after such demand, shall be recoverable in the same manner as moneys recoverable by the Board under section 324: Provided that where the action or step relates to the demolition of any erection or re-erection under section 248 or the removal of any projection or encroachment under section 252, the Board or the civil 101 area committee or the Chief Executive Officer may request any police officer to render such assistance as considered necessary for the lawful exercise of any power in this regard and it shall be the duty of such police officer to render forthwith such assistance on such requisition".
f) Thus, under the Act the Cantonment Board is empowered to issue notice under Section 320 of the Act, whenever a party violates the sanction in any manner. In this case, PW1 himself has clearly admitted that they have constructed by violating the sanction and also that they proceeded with the construction prior to obtaining sanction and that even after the lapse of sanction they have not sought for extension of any sanction from the Cantonment board. It is further elicited that during the pendency of the suit also they proceeded with the construction ETD,J CCCA No.221_2019 13 inspite of a status-quo order. It is established that they committed huge violations when compared to the sanction plan and proceeded with the construction without any sanction. In the cross examination of DW1 he admitted that he has not obtained any signatures of plaintiffs on their inspection report as well as any of the persons but he stated that the plaintiffs representatives refused to sign on the inspection report. However, this suggestion does not aid the plaintiffs in any way because it is already elicited through PW1 and the Exs.A1 and A5 that there were many violations in construction and the objective of inspection is to check whether the construction is within the sanctioned limits. Thus, the evidence on record establishes that the plaintiffs have committed huge violations in the sanctioned plan and that the notice issued under Section 320 of the Act by the defendant is a valid notice.
g) The appellants relied on the decision in K.V.Narasimha Reddy v. Cantonment Board, Secunderabad rep. by its Chief Executive Officer and others 1. The facts of the said case in brief are that the writ petitioner has made construction with certain deviations from the sanctioned plan to which the Cantonment board has issued notice. Challenging the said 1 2024 (2) ALT 715 (S.B.) ETD,J CCCA No.221_2019 14 notice, he has filed an appeal which was dismissed. Thus, the writ petition was filed to quash the proceedings and a Bench of this High Court has dismissed the writ petition and confirmed the orders passed by the appellate authority, in view of the admitted violations indulged in by the petitioner, granting liberty to the petitioner to approach the Cantonment Board with an application for compounding the violations. Though the appellant counsel has relied upon this judgment, the principle underlining the judgment is contrary to his prayer. The quash petition was dismissed confirming the decision of the appellate authority in the said case, in view of the admitted violations made in the construction. In the present case also, there are deviations which are admitted by the plaintiffs and it is already held in the preceding paragraphs that the notice issued by the Cantonment Board is valid and that the appellants are not entitled for any injunction. However, in the cited decision it was a writ petition and a direction was given to the petitioner to approach the Cantonment Board but since this is an appeal against the suit filed by the plaintiffs seeking an injunction and declaration of the notice to be null and void, only with regard to the said questions, the appeal shall be entertained.
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h) The learned counsel for the respondent has relied upon a case in Friends Colony Development Committee v. State of Orissa 2. The facts of the said case in brief are that the Friends Colony Development Committee (appellant) made a representation on 25.09.1994 to the concerned authority complaining of the offending construction and submitting that the deviations from the sanctioned plan damaged the environment and endangered life and safety of not only the occupants of the buildings but also of other inhabitants of the locality. By an order dated 08.11.1994, the Authority directed that the 5th floor of the building has to be demolished and also unauthorized projections of 605 Sq.ft. on each floor to be demolished. Pursuant to the said orders, the builder filed an appeal before the appellate authority which granted interim stay of demolition. The appellant has filed writ petition in public interest in the High Court of Orissa and subsequently, the appellate authority has dismissed the appeal filed by the builder. Challenging the said order, the builder has filed a writ petition in the High Court. The said Writ Petition was taken up for hearing while the writ petition filed in public interest by the appellant remained pending and finally the High Court has disposed of the writ petition by directing that if the builder makes a fresh 2 2004(8) Supreme 256 ETD,J CCCA No.221_2019 16 application or submitted a revised plan for approval in respect of construction already undertaken by it, the Authority should deal with the same in accordance with law. Aggrieved by the said judgment of the High Court, the Appellant has preferred SLP before the Hon'ble Supreme Court. Then, the Apex Court has held that "though the municipal laws permit deviations from sanctioned constructions being regularized by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some mis- understanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into under hand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions".
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i) A Division Bench of this High Court in
P.Venkateshwarlu & anr v. Government of Andhra Pradesh & Ors 3, has held that illegal and unauthorized constructions apart from violating municipal laws and planned development, also infringe the fundamental and Constitutional rights of other persons. Thus, the Bench has held that said directions are to be dealt strictly to ensure the rule of law and has ordered demolition of a building constructed in a park.
j) Therefore, in the light of the above cited decisions and the discussion held above, the plaintiffs are not entitled for any injunction against the defendants and also the notice issued under Section 320 of the Act is valid and cannot be declared to be null and void. Point Nos.1 and 2 are answered accordingly.
13. POINT NO.3:
In view of the reasoned findings arrived at point Nos.1 and 2, it is held that the judgment and decree passed by the trial Court are held to be sustainable in law and under the facts.
14. POINT NO.4:
In the result, the appeal is dismissed upholding the judgment and decree, dated 26.10.2018 passed in O.S.No.117 of 3 W.P.No.12538 of 1999 and W.P.No.25738 of 1997 decided on 04.10.2023 ETD,J CCCA No.221_2019 18 2012 by the learned I Additional Chief Judge, City Civil Court, Secunderabad. No costs.
Miscellaneous Applications, if any, pending in this appeal shall stand closed.
___________________________ TIRUMALA DEVI EADA, J Date: 02.05.2025 ns