Court No. - 36
Case :- WRIT - C No. - 35962 of 2018 Petitioner :- Vicky Respondent :- Cantonment Board Meerut, Through Its Executive Officer And Another Counsel for Petitioner :- Sharad Kumar Pandey Counsel for Respondent :- Prashant Mathur
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties.
The present writ petition is directed against the orders passed by the Cantonment authorities in a proceeding for demolition undertaken under Section 248(1) of the Cantonments Act, 2006 (in short as "the Act").
A notice of demolition under Section 248(1) of the Act dated 3.11.2016 was issued to the petitioner, who according to the respondent is the occupier of the premises in Bungalow No. 213, Westend Road, Meerut Cantt. A specific assertion with regard to the offence committed by the petitioner under Section 247 of the Act has been narrated in the said notice. The detail of the construction at the first floor, allegedly raised by the petitioner in the aforesaid premises had been given therein.
The said notice was disputed by moving an application by the petitioner with the assertion that only repairs and plaster work was done by the petitioner on the exiting old walls and the constructions mentioned in the notice dated 3.11.2016 are not new constructions. The site inspection as allegedly made by the concerned authority has not been done properly and the notice was based on wrong information given to the Chief Executive Officer, Cantonment Board, Meerut Cantt.
An Appeal No. 3 of 2017 was filed by the petitioner against the demolition notice dated 3.11.2016. The appellate order dated 28th April, 2018 categorically records that the appellant/petitioner was given due opportunity of hearing by the appellate authority. The written arguments were submitted by the appellant/petitioner dated 9.8.2017 and he had also submitted his detailed arguments on 24.2.2018.
Having noticed the said fact, the appellate authority had addressed itself on the contention of the appellant on merits of the appeal. The grounds taken in the appeal regarding the General Land Register (GLR) entries and the nature of constructions have duly been considered by the appellate authority.
The objections taken by the petitioner to assail the notice dated 3.11.2016 had also been taken into consideration.
The findings returned by the appellate authority are that the demised premises is held under the Old Grants by the Holder of Occupancy Rights namely Smt. Kewati Devi wife of Sri Padam Singh. The land is classified as B-3 defence land under the management of the Defence Estates Officer (DEO), Meerut Circle. The appellant/petitioner herein has not been mentioned as Holder of Occupancy Rights (HOR) in the GLR and was not entitled to carry out construction of any kind in the said bungalow. The report dated 21st January, 2016 was submitted by the technical staff of the Cantonment Board to the effect that the occupier/petitioner was carrying out unauthorised constructions. The impugned notice dated 3.11.2016 is clear in detail with regard to the nature and extent of the constructions being raised by the petitioner in the demised premises.
As far as the notice is concerned, it is categorically recorded that the notice was drawn in detail on the basis of the technical report submitted by the inspecting authorities. There is no violation of the principles of natural justice as distinct from the opinion formed by this Court in the judgment of Afzal vs. Cantonment Board, Meerut and others reported in 2014 (1) ADJ 696, inasmuch as, the appellant/petitioner was having full opportunity to assail the contents of the notice.
As to the nature of constructions, description of which has been given in the notice, it is categorically recorded that the constructions being raised by the appellant/petitioner cannot be said to be in the nature of repairs rather it was erection or re-erection of a building. The photographs submitted by the respondents unequivocally establishes the constructions being new at the site in question. The appellant had failed to produce any document to substantiate his claim that the alleged constructions had already been in existence being old and only some repairs had been undertaken by him.
No documentary evidence had been filed by the appellant so as to substantiate this submission in appeal.
These findings of fact returned by the appellant authority are being challenged in the present petition with the assertion that the notice dated 3.11.2016 was not accompanied with the inspection report, which was the basis of the said notice. The demolition notice/order is, therefore, in violation of the law laid down in Afzal (supra).
It is further submitted by the learned counsel for the petitioner that due opportunity of hearing had not been provided to the petitioner/appellant and the appeal has been decided only on the basis of the written submissions filed by the appellant.
As to the merits of the appellate order, it is contended that the fact recorded in the order impugned regarding the nature of construction being new constructions and not being repairs, are incorrect.
Sri Prashant Mathur, learned counsel for the respondent nos. 1 and 2, on the other hand, substantiates the orders impugned for the findings given therein.
It is submitted by him that the notice dated 3.11.2016 is clear and categorical giving details of the constructions being raised by the petitioner who is simply an occupier of the demised premises. He is not even the lessee of the old grant and, therefore, was not permitted to raise construction. It is further submitted that the proceedings for cancellation/revocation of the old grant has also been undertaken against the original lessee Smt. Kewati Devi, separately.
Having considered these submissions of learned counsel for the parties and perused the record, the notice dated 3.11.2016, which is at page '25' of the paper book clearly speaks of the illegal construction, which reads as under:-
“Tel: 0121-2643400(c) No. MCB/BLDG/ENGG/93/123/1748 Fax: 0121-2644418 Office of the Chief Executive Officer, email: ebmeerut@dgest Org. Cantonment Board Govt Of India, Min of Def Meerut Cant (U.P.) Pin-250001 Dated: 03.11.2016 (TO DEMOLISH UNAUTHORIZED CONSTRUCTIONS) NOTICE UNDER SUB-SECTION (1) OF SECTION 248 OF CANTONMENTS ACTS, 2006 To, Shri Vicky S/o Kailash Chand Part of Bungalow no. 213 Westend Road, Meerut Cantt.
Where as the erection/re-erection being Carried on/completed of the building specified below (thereinafter referred to as the said building) owned/occupied/taken on lease by you, constitutes an offence under Section 247 of Cantonment Act, 2006.
Now, therefore, in exercise of the powers conferred by Sub-Section (1) of section 248 of the Cantonments Act, 2006, you are hereby given notice that the erection/re-erection, of the said building should be demolished within 30 days from the date of receipt of this notice failing which said erection/re-erection will be demolished by the authority in execution of this notice under section 320 of Cantonment Act, 2006.
Dated: 03.11.2016 (RAJEEV SHRIVASTAVA)I.D.E.S. CHIEF EXECUTIVE OFFICER MEERUT CANTT”
Reply of the petitioner to the said notice only states that the repairs and plaster was being done by the petitioner over the existing old wall. Though a dispute had been raised with regard to the site inspection report as mentioned in the notice dated 3.11.2016, however, nothing concrete has been brought on record to substantiate that one room at the first floor of the demised premises was already existing under the old plan. Admittedly, no permission whatsoever had been taken to carry out the repairs by the petitioner.
The submission of learned counsel for the petitioner is that no permission is required to carry out the repairs is not acceptable in view of the findings recorded by the appellate authority that it was not repairs rather new constructions.
Moreover, the grounds asserted by the petitioner in appeal are only on the merits of the notice dated 3.11.2016 with the assertion that the facts mentioned therein were incorrect. No material had been brought on record before the appellate authority to substantiate that the fact recorded in the notice regarding the construction of one room at the first floor being illegal construction, was incorrect.
It is admitted to the petitioner that no documentary evidence was brought on record.
The plea of violation of the principles of natural justice i.e. the appellate order being passed without granting due opportunity is not substantiated from the record, inasmuch as, the appellate authority has categorically recorded that the petitioner/appellant had submitted the written argument on 9.10.2017 and also extended his detail arguments on 24.2.2018.
For all the aforesaid reasons, no infirmity is found in the order impugned.
The present petition is found devoid of merits.
At this stage, learned counsel for the petitioner submits that there is a provision for compounding of offences under First proviso to sub-section (1) of Section 185 of the Act.
The submission is that the plea of the petitioner to compound the unauthorized constructions may be considered by the Cantonment authority before carrying out demolition as per the final notice issued under Section 320 of the Act.
In view of the said submission, it would be appropriate that the petitioner may move a representation/application before the competent authority within a period of two weeks alongwith certified copy of this order invoking its jurisdiction under First proviso to sub-section(1) of Section 185 of the Act.
In case, such representation/application is filed, the competent authority would be under obligation to pass a reasoned and speaking order, in accordance with law and the demolition under the final notice under Section 320 of the Act would be carried out, only thereafter.
Subject to the above, the present writ petition is disposed of.
Order Date :- 29.10.2018 Brijesh