Court No. - 36
Case :- WRIT - C No. - 26001 of 2018 Petitioner :- Shri Avinash Chandra Agarwal Respondent :- The Principal Director, Defence Estates, Southern Command Pune And Another Counsel for Petitioner :- Abhay Krishna Agrawal,Sanjay Agrawal Counsel for Respondent :- Shashwat Kishore Chaturvedi
Hon'ble Mrs. Sunita Agarwal,J.
Supplementary affidavit filed today is taken on record.
There is no objection to the amendment application filed by the petitioner.
Necessary incorporation be made within the course of the day. Heard learned counsel for the parties.
The present writ petition is directed against the show cause notice dated 26.8.2015 as also the notice dated 6.11.2015 under Section 248 of the Cantonment Act, 2006 and the order dated 28.6.2017 in appeal no. JHS/06/2015 (Sri Avinash Chandra Agarwal vs. Chief Executive Officer, Cantonment Board, Jhansi). The final notices dated 31.7.2017 and 18.7.2018 wherein the petitioner has been called upon to remove unauthorized constructions or else the same shall be demolished are also under challenge.
Challenging these orders, submissions of learned counsel for the petitioner is that the categorical reply submitted by him to the show cause notice dated 6.11.2015 has not been considered while issuing the demolition notice dated 6.11.2015. Moreover, the appellate authority also did not consider the specific objection taken by the petitioner with regard to the nature of construction.
With reference to the averments in the memo of appeal (at page '53' of the paper book), it is submitted by the petitioner that the constructions, details of which has been given in the notices dated 26.8.2015 and 6.11.2015 are in fact old constructions. A room adjacent to the main wall of the boundary was existing since the year 1940-41. The old walls of the said room were in dilapidated state and as such, the petitioner had removed plaster of the existing wall and got it re-plastered. The old roof was replaced by new iron sheets. Laying of tin shed in place of Allahabad Tiles with brick wall does not amount to material alteration or enlargement of the building.
It is, thus, submitted that the report of the Chief Cantonment Engineer dated 26.8.2015 regarding new constructions being raised by the petitioner at the site in question is incorrect.
Learned counsel for the respondent, on the other hand, defends the order impugned for the reasoning given therein.
Considering the submissions of learned counsel for the petitioner and having perused the record, this Court finds that the details of constructions being raised by the petitioner in the year 2015 were reported by the inspection team comprising of the Chief Cantonment Engineer, Cantonment Board, Jhansi and the Junior Assistant, Cantonment Board, Jhansi.
A perusal of the inspection report dated 26.8.2015 submitted to the Chief Executive Officer, Cantonment Board, Jhansi (page '31' to the paper book) shows that the site was inspected by the above noted officers on 26.8.2015 at about 11:15 AM. The sketch map showing the alleged unauthorised constructions being raised by the petitioner is also appended with the said report. The report also gives a detail measurement of the constructions being raised by the petitioner in the year 2015.
In reply to the said notice, it was sought to be submitted by the petitioner that only existing walls were being repaired and no erection or re-erection on open land had been carried out. The same argument had been taken before the appellate authority but from a perusal of the material on record, it is more than apparent that the petitioner has not filed any material document either before the Chief Executive Officer, Cantonment Board or before the appellate authority to substantiate his assertion that the old constructions were being repaired by him.
Even otherwise, if it is accepted for a moment that the petitioner was making repairs of the old constructions, these repairs were not of minor nature. Any major repair which would amount to changing the existing room could only be done with the previous permission of the Cantonment Authority. At no point of time, the petitioner had moved any application before the Cantonment Board seeking its permission to make repairs of the alleged old existing room.
Even otherwise, the appellate authority has recorded a categorical finding that the inspection report and the photographs brought before the appellate authority proved that the new constructions were raised at the site in question.
In view of the said findings of fact recorded by the appellate authority and the fact that the notice issued to the petitioner in the year 2015 was based on an inspection report which categorically describes the details of constructions being raised by the petitioner, no interference can be made.
No infirmity is found in the action taken by the Chief Executive Officer, Cantonment Board in issuing notice to the petitioner for raising unauthorised construction.
At this juncture, learned counsel for the petitioner submits that the constructions raised by the petitioner may be compounded in accordance with the proviso to sub-section (1) of Section 248 of the Cantonment Act, 2006.
For the purpose, the petitioner would be at liberty to move an application placing on the record the details of constructions raised by him, the photographs of constructions alongwith the compounding map which would indicate the old constructions, the total area of open land appurtenant to the boundary wall including the constructions raised by the petitioner etc.
In case, such an application is moved, the respondent authority may proceed in accordance with law.
Subject to the above observations and directions, the writ petition is disposed of.
Order Date :- 21.8.2018 Brijesh