7. I, therefore, direct as under:-
(a) Unauthorised constructions, mentioned in the subject Notice of the Cantonment Board, Agra, be demolished.
(b) Cantonment Board, Agra to impose a fine of Rs.20,000/- on the Appellant.
(c) A monthly feed back be forwarded to the Appellate Authority, till implementation of above mentioned directions.
8. The Appeal is accordingly disposed of. This order also disposes of any other appeal against the Notices pertaining to said constructions."
I have heard Sri V.B. Upadhyay, learned Senior Cousnel for the petitioner assisted by Sri A.K. Goyal and Sri C.B. Gupta, learned counsel appearing for the respondent Cantonment Board.
Sri V.B. Upadhyay, learned Senior Counsel for the petitioner submitted that the impugned orders dated 13th June, 2007 and 9th April, 2009 deserve to be set aside. He submitted that the Board was required to consider the reply filed by the petitioner to the second notice before arriving at any conclusion that the petitioner had committed an offence under Section 247 of the Act but there is nothing on the record to indicate that the issue was actually determined by the Board as the notice issued to the petitioner under 4 Section 248(1) of the Act merely mentions that the Board had resolved that the petitioner must demolish/remove the constructions. It is his submission that proceedings under Section 248(1) of the Act could have been initiated against the petitioner only if it was established that offence under Section 247 of the Act has been made out, but the Board has not communicated any such order to the petitioner. His submission is that the notice under Section 248(1) of the Act has been issued in a mechanical manner on the presumption that offence under Section 247 of the Act has been made out. It is also his submission that the Appellate Authority has failed to take notice of the grounds raised by him and in a cursory manner without giving any reason has disposed of the Appeal.
On merits, he has contended that the Cantonment Board failed to bring anything on record to show the exact constructions existing on the site at the time of allotment and the construction existing on the date of inspection of the site because it is only on a comparison of the two that the Cantonment Board could have arrived at a conclusion that the petitioner had made any erection/re-erection or any additional construction. It is his submission that the petitioner was only carrying out repairs for which no permission was required from the Cantonment Board under the Act and since no document had been produced by the Cantonment Board to show that the petitioner had raised new constructions beyond the plinth area, the proceedings initiated under Section 248(1) of the Act were without any basis. He further submitted that despite the order dated 25th September, 2008 passed by the Appellate Authority, the Cantonment Board did not produce the building plan from the Defence Estate Officer which could have established whether the petitioner had made any erection/re-erection or any additional construction. It is also his submission that the plea of the petitioner for composition of the offence under Section 248 was not considered by the Appellate Authority.
Sri C.B. Gupta, learned counsel for the respondent, however, urged that the constructions had been raised by the petitioner in clear violation of the provisions of Section 235 of the Act and, therefore, the Cantonment Board was justified in issuing the order under Section 248(1) of the Act. It is also his submission that the Appellate Authority has given good and 5 sufficient reasons. He, therefore, submits that the impugned orders do not call for any interference under Article 226 of the Constitution.
I have carefully considered the submissions advanced by the learned counsel for the parties.
In order to appreciate the rival contentions, it would be appropriate to reproduce the relevant Sections namely Sections 234, 239(1), 247 and 248(1) of the Act which are as follows:-
"234. Sanction for building.--No person shall erect or re-erect a building on any land in a cantonment--
(a) in an are, 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.
.................
239. Order for stoppage of building or works in certain cases and disposal of things removed.--(1) Where the erection of any building or execution of any work has been commenced or is being carried on without or contrary to the sanction, but has not been completed, referred to in section 238 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any provision of this Act or bye-laws made thereunder, the Chief Executive Officer may in addition to any other action that may be taken under this Act, by order require the person at whose instance the building or the work has been commenced or is being carried on to stop the same forthwith.
.................
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, 6 shall be punishable with fine which may extend to fifty thousand rupees and the cost of sealing the illegal construction and its demolition.
248. Power to stop erection or re-erection or to demolish.--(1) The 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 sch 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."
It is, therefore, clear that under Section 234 of the Act, no person can erect or re-erect a building in an area of the Cantonment otherwise than in accordance with the provisions of Chapter X. Under Section 235 of the Act, whoever intends to erect or re-erect any building in a cantonment shall apply for sanction by giving notice in writing of his intention but a person shall be deemed to erect or re-erect a building if he makes any material alteration or enlargement of any building. Under Section 248(1) of the Act, the Board can order for demolition of the constructions raised if the Board considers that such erection or re-erection is an offence under Section 247 of the Act.
In the present case, the petitioner was served with a notice dated 14th March, 2007 under Section 239(1) of the Act mentioning therein that the petitioner was making unauthorised constructions attracting the provisions of Sections 235 and 238 of the Act. It was further mentioned that this also constituted an offence under Section 247 of the Act. The petitioner was, therefore, directed to stop the execution of the work. The petitioner submitted a reply denying that the provisions of Section 235 and 238 of the Act had been contravened and he also mentioned that he was only repairing the damaged structures of the bungalow.
The petitioner was also served with a notice dated 14th March, 2007 mentioning therein that he was raising unauthorised constructions attracting the provisions of the Section 235 of the Act which constituted an offence under Section 247 of the Act and, therefore, he was required to show cause why he should not be prosecuted under Section 247 of the Act and why action should not be taken for demolition of the said unauthorised constructions under Sections 247 and 320 of the Act. The petitioner also filed a reply dated 17th July, 2007 to this notice mentioning therein that the constructions raised by him did not attract the provisions of Section 247 of the Act and that he was only making repairs of the damaged structures of the bungalow and in fact he had earlier made a request for permitting him to repair the damaged structures of the bungalow.
Section 248(1) of the Act provides that if by raising of constructions, the provisions of Section 247 of the Act are attracted, then the Board can order for demolition/removal of such constructions. A finding was, therefore, required to be recorded by the Board that such erection or re- erection was an offence under Section 247 of the Act. As noticed, hereinabove, the notice dated 14th March, 2007 issued to the petitioner required him to show cause why he should not be prosecuted under Section 247 of the Act. The petitioner submitted a reply. It was, therefore, necessary for the Board to first consider whether the petitioner could be prosecuted under Section 247 of the Act. It is only thereafter that proceedings under Section 248(1) of the Act could have been initiated for demolition/removal of the unauthorised constructions.
In the present case, the communication dated 13th July, 2007 that has been sent to the petitioner by the Board under Section 248(1) of the Act, merely mentions that since the constructions raised was an offence under Section 247 of the Act, the Board in its meeting held on 15th May, 2007 had resolved that the petitioner should demolish/remove the constructions. The order, if any, of the Chief Executive Officer or the Board holding that the petitioner was liable to be prosecuted under Section 247 of the Act has not been placed before the Court.
The order for demolition/removal of constructions has grave consequences. It was, therefore, imperative for the Board to record a categorical finding that the constructions that had been raised were 8 unauthorised before ordering demolition/removal of the constructions. The issuance of a notice is not a mere formality. The reply submitted to the notice is required to be considered and the order must give the reasons as to why the constructions raised are unauthorised. The order dated 13th June, 2007 issued under Section 248(1) of the Act proceeds on the assumption that the provisions of Section 247 of the Act are attracted to the constructions raised by the petitioner. The proceedings under Section 248(1), therefore, are vitiated and cannot be sustained.
The Appellate Authority has also failed to consider this aspect of the matter. In fact the Appellate Authority after recording the submissions advanced by both the sides has merely mentioned that on perusal of the documents on record and oral arguments advanced by the parties, it was evident that the constructions mentioned in the notice were new and had been made without prior municipal sanction of the Cantonment Board. There is no consideration of the submissions or the documents placed forth by the parties. It is, therefore, also difficult to sustain the Appellate Order dated 9th April, 2009.
Thus, for all the reasons stated above, the notice dated 13th June, 2007 issued by the Cantonment Board, Agra under Section 248(1) of the Act and the order dated 9th April, 2009 disposing of the Appeal filed by the petitioner are set aside. It shall, however, be open to the respondents to pass an appropriate order in accordance with law in the light of the observations made above after giving opportunity to the petitioner. The submission of the learned Senior Counsel for the petitioner that the Board was obliged to consider the request made by the petitioner for composition may also be considered by the Board in accordance with law.
The writ petition is allowed to the extent indicated above. Date: 01.02.2010 GS