Cantonment Board,Meerut . vs Afzal

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3814 OF 2019

Cantonment Board, Meerut & Anr. ...Appellants Versus Afzal ...Respondent

WITH

CIVIL APPEAL NOS. 3815/2019; 3816/2019; 3817/2019; 3818/2019; 3819/2019; 3820/2019; 3821/2019; 3822/2019; 3823/2019; 3824/2019; 3825/2019; 3826/2019; 3827/2019; 3828/2019; 3829/2019; 3830/2019; 3831/2019; 3832/2019; 3833/2019; 3834/2019; 3835/2019; 3836/2019; 3837/2019; 3838/2019; 3839/2019; 3840/2019; 3841/2019; 3842/2019; 3843/2019; 3844/2019; 3845/2019; 3846/2019; 3847/2019; 3848/2019; 3849/2019; 3850/2019; 3851/2019; 3852/2019; 3853/2019; 3854/2019; 3855/2019; 3856/2019; 3857/2019; 3858/2019; 3859/2019; 3860/2019; 3861/2019; 3862/2019; 3863/2019; 3864/2019; 3865/2019; 3866/2019; 3867/2019; 3868/2019; 3869/2019; 3870/2019; 3871/2019

J U D G M E N T

R. Subhash Reddy, J.

1. Signature Not Verified Digitally signed by

This batch of appeals, is filed by the Cantonment MADHU BALA Date: 2019.04.23 17:50:41 IST Reason:

Board, Meerut and others, aggrieved by the common order

1 C.A.Nos.3814 of 19 etc.

dated 19.12.2013 passed by the High Court of Allahabad

in Civil Misc. Writ Petition No.54929 of 2012 and batch.

All the appeals shall stand disposed of by this common

judgment.

2. In the writ petitions filed before the High Court,

respondents – original petitioners have prayed for

quashing of notices issued by the appellants under

Section 185 of the Cantonments Act, 1924 (for short,

‘the 1924 Act’) for stopping the alleged constructions

raised unauthorisedly by the respondents – original

petitioners as well as for quashing of the notices

issued for demolition of constructions so raised. The

respondents – writ petitioners have also prayed for

quashing of the appellate order passed by the appellate

authority dismissing the appeals preferred by them.

3. The law relating to administration of cantonments

was originally governed by the 1924 Act. The said Act

is repealed by virtue of Section 360 of the Cantonments

Act, 2006 (for short, ‘the 2006 Act’). The 2006 Act

came into force w.e.f. 18.12.2006.

4. Before the new Act has come into force, Cantonment

Executive Officer has initiated proceedings under

Sections 184 and 185 of the 1924 Act, on the ground that

2 C.A.Nos.3814 of 19 etc.

respondents have carried out unauthorised constructions

without prior permission within the area of cantonment

and has issued show cause notices to show cause why

legal action should not be taken against the

respondents. For the purpose of disposal, we would

refer to the notice issued to one Afzal who is the

respondent in Civil appeal No.3814 of 2019. The notice

issued to the said respondent reads as under :

“ Office of the Cantonment Board Meerut, dated 22nd Aug, 2006

To Afzal Ahmad S/o Faqruddin, 55/pt Ghosi Mohalla, B.I. Bazar, Meerut Cantt.

Subject : SHOW CAUSE NOTICE

It has been reported to me that you have carried out the following unauthorized constructions without prior permission in the Shop No.53-54 Ghosi Mohalla, B.I. Bazar, Meerut Cantt.

FIRST FLOOR

Room Measuring 12’-11” x 15’-7” is being constructed in Shop No.53-54, Ghosi Mohalla B.I. Bazar, Meerut Cantt.

As this is an offence punishable under Section 184/185 of the Cantonments Act, 1924 (amended), please show cause within 3 days from the receipt hereof, why legal action should not be taken against you under the provisions of the said Section of the Cantonments Act, 1924 (Amended).”

3 C.A.Nos.3814 of 19 etc.

5. In continuation of the show cause notice, further

notice is issued on 02.09.2006 under Section 185 of the

1924 Act to stop further construction and for demolition

of the unauthorised construction. Aggrieved by the

notice dated 02.09.2006 he has filed statutory appeal as

contemplated under Section 274 of the 1924 Act. Appeal

also ended in dismissal. In all the cases covered in

this group, identical and stereo type orders are passed

by the primary authority and appellate authority.

6. Challenging the notice issued under Section 185 of

the 1924 Act and order of the appellate authority,

respondents – original petitioners have filed writ

petitions before the High Court. The orders impugned in

the writ petitions before the High Court were challenged

mainly on the gorund that there is no authority to the

Executive Officer to issue such a notice and the notice

is without jurisdiction. The second ground is that the

notice for demolition has to be issued within a period

of 12 months from the date of the alleged constructions.

It was pleaded that date of construction was not

mentioned in the notice, as such, notice was barred by

limitation. Another ground before the High Court was

that notices were issued in a casual manner and inspite

4 C.A.Nos.3814 of 19 etc.

of submitting the reply to the show cause notices, the

primary authority has not considered the replies and

passed order, and even appellate authority has passed

stereo type orders without giving any opportunity and

fixing the date for hearing. First two grounds raised

by the respondents – writ petitioners were not accepted

but however High Court has held that reply filed by the

respondents – original petitioners was not considered

and no reasons were assigned for rejecting objections.

Further, it is also held that the appellate authority

has passed orders, which are more or less identical, and

passed in a pre-determined manner without giving any

opportunity of hearing. While quashing the impugned

orders, High Court by impugned order dated 19.12.2013

left open to the appellants to proceed afresh in the

light of observations made in the judgment.

7. We have heard the learned counsel Ms. Rekha Pandey

appearing for the appellants and also learned counsels

appearing for the respondents in this group of cases.

8. In these appeals, it is contended by learned

counsel for the appellants that when constructions are

made unauthorisedly without obtaining permission from

the competent authority, it is always open for the

5 C.A.Nos.3814 of 19 etc.

authorities to order for demolition of such

constructions, which are raised illegally. Further it

is submitted that inspite of giving several

opportunities, respondents – original petitioners have

not appeared before the appellate authority, as such,

appellate authority has considered the matter on merits

and passed the impugned order. It is further submitted

that even the primary authority has issued notice under

Section 185 of the 1924 Act after giving an opportunity

by way of show cause notice. It is submitted that

inspite of giving opportunity at the primary stage and

the appellate stage, the High Court erroneously recorded

the finding that orders are passed without giving

opportunity and quashed the impugned orders in the writ

petitions.

9. On the other hand learned counsel appearing for the

respondents have pleaded that either primary authority

or appellate authority have not considered the

objections raised by the appellants and impugned orders

are passed. It is submitted that inspite of filing

objections to the show cause notices, the Cantonment

Executive Officer has not referred to such objections

and issued notices under Section 185 of the 1924 Act for

6 C.A.Nos.3814 of 19 etc.

demolition. When appeals are preferred by availing the

statutory remedy, as contemplated under the Act, even

the appellate authority has not given an opportunity by

fixing the date of hearing and passed the impugned

stereo type orders rejecting the appeals preferred by

the respondents. It is further submitted that there is

no valid delegation to Cantonment Executive Officer at

all and the impugned notices are issued without any

jurisdiction.

10. Having heard learned counsel for the parties, we

have perused the impugned order passed by the High Court

and other materials placed on record.

11. At the outset, it is to be noticed that aggrieved

by the common order passed by the High Court, Cantonment

Board and others have filed appeals and there are no

appeals filed by the respondents herein aggrieved by any

of the findings recorded in the common impugned order.

The jurisdiction questioned by the respondents and the

authority of the appellants in issuing notice under

Section 185 of the 1924 Act is rejected by the High

Court. Similarly further plea of not taking action

within a period of 12 months from the date of

construction is also rejected by recording reasons. We

7 C.A.Nos.3814 of 19 etc.

do not find any error on such findings recorded by the

High Court, more particularly in absence of any appeals

preferred by the respondents – original petitioners. At

the same time, we are of the view, valid and cogent

reasons are recorded by the High Court for quashing the

notices issued under Section 185 of the 1924 Act and

orders by the appellate authority. Apart from the

reasons assigned in the impugned order we have also

verified the other material placed on record. So far as

Afzal who is respondent in Civil Appeal No. 3814 of 2019

is concerned, show cause notice dated 22.08.2006 is

issued alleging that he has constructed the shop no.53-

54 at Ghosi Mohalla, B.I. Bazar, Meerut Cantt., but same

is not even referred to in the final notice issued on

02.09.2006. It is the case of the respondents that

objections were filed, and their objections were also

not considered. Having issued the show cause notice, the

primary authority ought to have referred to such notice

and objections, if any, to such notice, while issuing

the final notice on 02.09.2006. It is clear that notices

are issued mechanically and in a casual manner. Even the

appellate authority, relying on the survey report dated

10.08.2006, has held that the respondent in Civil Appeal

8 C.A.Nos.3814 of 19 etc.

No.3814 of 2019 has raised unauthorised constructions on

the first floor of the shop without taking any

permission of the competent authority. Further, it is

stated that such survey/inspection report is not

furnished to the respondents at any point of time though

such report is relied on for rejecting the appeals

preferred by the respondents.

12. While quashing the notices in the impugned order in

the writ petitions filed before the High Court, High

Court has left it open to the appellants to issue fresh

notice and to pass appropriate orders by following

procedure contemplated under law. In that view of the

matter, while it is always open to the appellants to

initiate fresh proceedings by issuing fresh show cause

notices on the allegations made against the respondents,

but at the same time having regard to reasons recorded

in the impugned order passed by the High Court, we do

not find any error in the order passed by the High Court

so as to interfere with the same in these appeals.

13. These appeals are accordingly dismissed. However,

we make it clear that the liberty granted by the High

Court to initiate fresh proceedings for passing

appropriate orders is maintained. As the Cantonment

9 C.A.Nos.3814 of 19 etc.

Act, 2006 has come into force from 18.12.2006,

appellants to take fresh action only in accordance with

the provisions of the 2006 Act. Fresh show cause notice

issued shall be in continuation of the earlier show

cause notice issued to each of the respondents. While

issuing fresh show cause notice, the appellant shall

furnish copy of the Inspection Report to the respondents

and afford sufficient opportunity to each of the

respondents and pass order in accordance with law.

Further the constructions in question are unauthorised

or not, such issue is left open to be considered by the

authorities.

.................... J.

[R. Banumathi]

.................... J.

[R. Subhash Reddy] New Delhi;

April 23, 2019

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