CANTONMENT BOARD, MEERUT & ANR. versus AFZAL on 23 April 2019

1. This batch of appeals, is filed by the Cantonment Board, Meerutand others, aggrieved by the common order dated 19.12.2013 passed bythe High Court of Allahabad in Civil Misc. Writ Petition No.54929 of2012 and batch. All the appeals shall stand disposed of by this commonjudgment.

2. In the writ petitions filed before the High Court, respondents –original petitioners have prayed for quashing of notices issued by theappellants under Section 185 of the Cantonments Act, 1924 (for short,‘the 1924 Act’) for stopping the alleged constructions raisedunauthorisedly by the respondents – original petitioners as well as forquashing of the notices issued for demolition of constructions so raised.The respondents – writ petitioners have also prayed for quashing of theappellate order passed by the appellate authority dismissing the appealspreferred by them.

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A3. The law relating to administration of cantonments was originallygoverned by the 1924 Act. The said Act is repealed by virtue of Section360 of the Cantonments Act, 2006 (for short, ‘the 2006 Act’). The 2006Act came into force w.e.f. 18.12.2006.

4. Before the new Act has come into force, Cantonment ExecutiveBOfficer has initiated proceedings under Sections 184 and 185 of the1924 Act, on the ground that respondents have carried out unauthorisedconstructions without prior permission within the area of cantonmentand has issued show cause notices to show cause why legal action shouldnot be taken against the respondents. For the purpose of disposal, wewould refer to the notice issued to one Afzal who is the respondent inCCivil appeal No.3814 of 2019. The notice issued to the said respondentreads as under :

“Office of the Cantonment Board

Meerut, dated 22[nd] Aug, 2006

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To Afzal Ahmad S/o Faqruddin,

55/pt Ghosi Mohalla,

B.I. Bazar,

EMeerut Cantt.

Subject : SHOW CAUSE NOTICE

It has been reported to me that you have carried out the followingunauthorized constructions without prior permission in the ShopNo.53-54 Ghosi Mohalla, B.I. Bazar, Meerut Cantt.

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FIRST FLOOR

Room Measuring 12’-11" x 15’-7" is being constructed in ShopNo.53-54, Ghosi Mohalla B.I. Bazar, Meerut Cantt.

As this is an offence punishable under Section 184/185of the Cantonments Act, 1924 (amended), please show causewithin 3 days from the receipt hereof, why legal action should notbe taken against you under the provisions of the said Section ofthe Cantonments Act, 1924 (Amended).”

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5. In continuation of the show cause notice, further notice is issuedon 02.09.2006 under Section 185 of the 1924 Act to stop furtherconstruction and for demolition of the unauthorised construction.Aggrieved by the notice dated 02.09.2006 he has filed statutory appealas contemplated under Section 274 of the 1924 Act. Appeal also endedin dismissal. In all the cases covered in this group, identical and stereotype orders are passed by the primary authority and appellate authority.

6. Challenging the notice issued under Section 185 of the 1924Act and order of the appellate authority, respondents – original petitionershave filed writ petitions before the High Court. The orders impugned inthe writ petitions before the High Court were challenged mainly on thegorund that there is no authority to the Executive Officer to issue such anotice and the notice is without jurisdiction. The second ground is thatthe notice for demolition has to be issued within a period of 12 monthsfrom the date of the alleged constructions. It was pleaded that date ofconstruction was not mentioned in the notice, as such, notice was barredby limitation. Another ground before the High Court was that noticeswere issued in a casual manner and inspite of submitting the reply to theshow cause notices, the primary authority has not considered the repliesand passed order, and even appellate authority has passed stereo typeorders without giving any opportunity and fixing the date for hearing.First two grounds raised by the respondents – writ petitioners were notaccepted but however High Court has held that reply filed by therespondents – original petitioners was not considered and no reasonswere assigned for rejecting objections. Further, it is also held that theappellate authority has passed orders, which are more or less identical,and passed in a pre-determined manner without giving any opportunityof hearing. While quashing the impugned orders, High Court by impugnedorder dated 19.12.2013 left open to the appellants to proceed afresh inthe light of observations made in the judgment.

7. We have heard the learned counsel Ms. Rekha Pandeyappearing for the appellants and also learned counsels appearing for therespondents in this group of cases.

8. In these appeals, it is contended by learned counsel for theappellants that when constructions are made unauthorisedly withoutobtaining permission from the competent authority, it is always open forthe authorities to order for demolition of such constructions, which are AB

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Araised illegally. Further it is submitted that inspite of giving severalopportunities, respondents – original petitioners have not appeared beforethe appellate authority, as such, appellate authority has considered thematter on merits and passed the impugned order. It is further submittedthat even the primary authority has issued notice under Section 185 ofthe 1924 Act after giving an opportunity by way of show cause notice.BIt is submitted that inspite of giving opportunity at the primary stage andthe appellate stage, the High Court erroneously recorded the finding thatorders are passed without giving opportunity and quashed the impugnedorders in the writ petitions.

9. On the other hand learned counsel appearing for the respondentsChave pleaded that either primary authority or appellate authority havenot considered the objections raised by the appellants and impugnedorders are passed. It is submitted that inspite of filing objections to theshow cause notices, the Cantonment Executive Officer has not referredto such objections and issued notices under Section 185 of the 1924 ActDfor demolition. When appeals are preferred by availing the statutoryremedy, as contemplated under the Act, even the appellate authority hasnot given an opportunity by fixing the date of hearing and passed theimpugned stereo type orders rejecting the appeals preferred by therespondents. It is further submitted that there is no valid delegation toCantonment Executive Officer at all and the impugned notices are issuedEwithout any jurisdiction.

10. Having heard learned counsel for the parties, we have perusedthe impugned order passed by the High Court and other materials placedon record.

F11. At the outset, it is to be noticed that aggrieved by the commonorder passed by the High Court, Cantonment Board and others havefiled appeals and there are no appeals filed by the respondents hereinaggrieved by any of the findings recorded in the common impugnedorder. The jurisdiction questioned by the respondents and the authorityof the appellants in issuing notice under Section 185 of the 1924 Act isGrejected by the High Court. Similarly further plea of not taking actionwithin a period of 12 months from the date of construction is also rejectedby recording reasons. We do not find any error on such findings recordedby the High Court, more particularly in absence of any appeals preferredby the respondents – original petitioners. At the same time, we are of H

the view, valid and cogent reasons are recorded by the High Court forquashing the notices issued under Section 185 of the 1924 Act and ordersby the appellate authority. Apart from the reasons assigned in theimpugned 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 isconcerned, show cause notice dated 22.08.2006 is issued alleging thathe 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 issuedon 02.09.2006. It is the case of the respondents that objections werefiled, and their objections were also not considered. Having issued theshow cause notice, the primary authority ought to have referred to suchnotice and objections, if any, to such notice, while issuing the final noticeon 02.09.2006. It is clear that notices are issued mechanically and in acasual manner. Even the appellate authority, relying on the survey reportdated 10.08.2006, has held that the respondent in Civil Appeal No.3814of 2019 has raised unauthorised constructions on the first floor of theshop without taking any permission of the competent authority. Further,it is stated that such survey/inspection report is not furnished to therespondents at any point of time though such report is relied on forrejecting the appeals preferred by the respondents.

12. While quashing the notices in the impugned order in the writpetitions filed before the High Court, High Court has left it open to theappellants to issue fresh notice and to pass appropriate orders by followingprocedure contemplated under law. In that view of the matter, while it isalways open to the appellants to initiate fresh proceedings by issuingfresh show cause notices on the allegations made against the respondents,but at the same time having regard to reasons recorded in the impugnedorder passed by the High Court, we do not find any error in the orderpassed by the High Court so as to interfere with the same in theseappeals.

13. These appeals are accordingly dismissed. However, we makeit clear that the liberty granted by the High Court to initiate freshproceedings for passing appropriate orders is maintained. As theCantonment Act, 2006 has come into force from 18.12.2006, appellantsto take fresh action only in accordance with the provisions of the 2006Act. Fresh show cause notice issued shall be in continuation of the earliershow cause notice issued to each of the respondents. While issuing AB

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282SUPREME COURT REPORTS

[2019] 6 S.C.R.

Afresh show cause notice, the appellant shall furnish copy of the InspectionReport to the respondents and afford sufficient opportunity to each ofthe respondents and pass order in accordance with law. Further theconstructions in question are unauthorised or not, such issue is left opento be considered by the authorities.

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Nidhi Jain

Appeal dismissed.

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