Amarjeet Singh and Others vs Union of India and Others

Sunita Agarwal, J—Heard Sri Anoop Trivedi, learned counsel for the petitioners, Sri Ashok Mehta, learned Additional Solicitor General of India for respondent Nos. 1 & 2 and Sri S.K. Rai, learned counsel for respondent No. 3.

This writ petition is directed against the order dated 24.2.2015 passed on the recall application filed by the petitioner for recall of the order of the appellate authority passed under Section 274 of the Cantonments Act, 1924. Simultaneously, the order dated 14.12.2006 dismissing the appeal as also the communication dated 27.3.2002 sent by the Chief Executive Officer, Cantt. Board, Meerut are also under challenge.

Brief facts of the case giving rise to the present writ petition are that the petitioners claim to be occupiers and holders of Power of Attorney from the lease holder of Bungalow No. 304, Brook Street, Meerut Cantt., Meerut. It appears that they had raised certain constructions on account of which a show cause notice dated 17.1.2001 under proviso to sub-section (1) of Section 5-B of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was issued to them. Reply was submitted on 2.2.2001. It appears that the composition building plan was submitted by the petitioners for compounding of the constructions which has been termed as unauthorised. On the said plan, serious objections have been raised by the Defence Estate Officer whose report has been obtained under Section 181(3) of the Cantonments Act, 1924. The Board vide resolution No. 488 dated 11.3.2002 had rejected the composition plan. The information of the decision of the Board has been given vide communication dated 27.3.2002 sent by the Chief Executive Officer, Cantonment Board, Meerut. The petitioner had filed an appeal under Section 274 of the Cantonments Act, 1924 against rejection of the composition plan vide resolution No. 488 dated 11.3.2002 by the Cantonment Board. The grounds taken in the appeal were that the objections raised by the Defence Estate Officer, Meerut Circle on the composition plan were totally baseless and with mala fide intentions. The site in question was both residential as well as commercial and there has been no change whatsoever from the original plan of the building. The commercial activities were going on at the site in question and no written consent was required for using the same for the commercial purposes. Even if there was a change of purpose, it ought to have been regularised by compounding of the plan. There was no gross violation of the terms and conditions of the lease.

During the pendency of the appeal, it appears that an application dated 16th August, 2003 was filed before the Principal Director, Defence Estate Central Command with the prayer to issue an interim order during pendency of the appeal. It was stated therein that the Defence Estate Officer who gave opinion earlier, as an appellate authority at the relevant point of time, had deliberately not considered the purpose for which the bungalow was being used as per the G.L.R. entries. He was highly prejudiced and inimical to the petitioner and had raised objections to the compounding plan on irrelevant grounds.

The appeal was dismissed vide order dated 14.12.2006 wherein it was recorded that three dates were fixed for hearing of the appeal and the notices were sent to the appellant but he did not appear. After consideration of the grounds taken in the appeal filed on 8.4.2002, it was observed by the appellate authority that as per the terms and conditions of the lease dated 9.5.1936, the site has been leased out for the purpose of dwelling and guest house but now at the site these does not exist either a guest house or a dwelling house. There is gross violation of terms and conditions of the lease and hence the compounding plan has been rightly rejected by the Board.

An application for recall of the order dated 14.12.2006 was filed by the petitioner on 21.2.2007 on the ground that the order was ex-parte. In the recall application, allegations were made against the then appellate authority, who was earlier posted as Defence Estate Officer, on the ground that he had given opinion for rejection of the plan and therefore, could not have decided the Appeal. The petitioner has inimical relations with the appellate authority and for that matter, the Defence Estate Officer who was one and the same person. The recall application has been dismissed vide order dated 24.2.2015 on the ground that there is no provision under the Cantonments Act for recall/review of the order passed by the appellate authority which has attained finality under Section 344 of the Cantonments Act, 2006.

Challenging the order impugned, learned counsel for the petitioner strenuously argued that a categorical case of mala fide has been pleaded against the appellate authority who had rejected the appeal in the year 2006. The recall/review was a procedural review and therefore, respondent No. 2 has erred in rejecting the recall application on the ground that there is no provision. In view of the allegations of mala fide pleaded by the petitioner by filing a transfer application, the appeal could not have been heard by the same person who was earlier posted as Defence Estate Officer. He was not competent to decide the appeal.

On the other hand, learned counsels for the respondents submit that the petitioners are unauthorised occupants of the building. They are neither grantee nor legal occupier of the building. The G.L.R. entries, which are conclusive proof of the title of the occupier of a building under Old Grants, are in the name of the original lease holder i.e. Sri O.P. Boaz and his heirs. As unauthorised constructions have been raised by an illegal occupants, proceedings under P.P. Act, 1971 have been issued. The compounding cannot be claimed as a matter of right. With the moving of the compounding application, the applicants/petitioners have admitted that the constructions in question are unauthorised. There is no legal obligation upon the respondents to compound the unauthorised constructions and not to demolish them.

Having heard learned counsel for the parties and perused the record. There is no dispute about the fact that the petitioners are only power of attorney holders of the Grantee under Old Grants. Whether their names have been entered as occupiers in the G.L.R. or not is a subject matter of scrutiny in the proceedings pending under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

Present proceeding only pertains to rejection of the compounding plan by the competent authority. On the compounding plan, the Defence Estate Officer had submitted his report/objection as per Section 181(3) of the Cantonments Act, 1924. It is the Board which has rejected the plan after deliberations in its meeting held on 11.3.2002. The decision of the Board is a collective decision and was not dependent upon the opinion expressed by the Defence Estate Officer. No ground has been made out by the petitioner to challenge the decision taken by the Board.

So far as the order in appeal is concerned, the officer who was posted as an appellate authority and was competent to decide the appeal had considered the grounds taken by the petitioner in appeal, the resolution of the Board and the objections taken by the Defence Estate Officer and found that there was gross violation of the terms and conditions of lease and unauthorised constructions which are sought to be legalised by filing compounding application were at total variance from the original plan of the building. With these findings, the appeal was rejected.

The mala fide pleaded by learned counsel for the petitioner is without any basis. There is not a single instance of any personal enmity of the petitioners with the Defence Estate Officer. Merely because at one point of time, the officer gave his opinion on the compounding plan that does not mean that he was not competent to decide the matter that too after four years while holding the office as an appellate authority.

Merely because the petitioner moved the transfer application at one point of time, it would not take away the jurisdiction of the appellate authority to hear and decide the appeal. The recall application is also misconceived inasmuch as it does not reflect as to how the order in appeal was ex-parte. There is no averment in the recall application that the notices reference of which finds place in the appellate order, were not served upon the petitioners at any point of time.

The contention that it was a case of procedural review is not acceptable for the simple reason that no procedural infirmity could be pointed out by the petitioner in the order passed in Appeal. As there is no provision of review, the order rejecting the review application is perfectly justified.

In the totality of the facts and circumstances of this case, the Court finds that the compounding application has been rejected as early as in the year 2004 with the dismissal of the statutory appeal filed by the petitioner. There is no provision of review in the Cantonments Act, 1924. It is well settled that review is creature of statute and the authority which is not empowered by the statute to review its order, cannot entertain it.

Moreover, the respondents cannot be faulted for rejecting the compounding application on merits after examination of the compounding plan. The collective decision of the members of the Board was upheld by the appellate authority for the reasons given in the rejection order. There is sufficient compliance of the Principles of Natural Justice. The respondents are under no statutory obligation to accept the compounding plan.

In view of the above discussion, no interference is required in exercise of extraordinary powers under Article 226 of the Constitution of India.

The writ petition is devoid of merits and hence dismissed.