Sanjay Narang vs Union of India and Others

Servesh Kumar Gupta, J.—Supplementary-affidavit filed today in the Court on behalf of the petitioner is taken on record and this Court has rendered hearing to learned Counsel for the petitioner as well as to learned Counsel for Cantonment Board/Chief Executive Officer, who are the respondent Nos. 3 and 4, on the question of admission. Petitioner Sanjay Narang has presented this petition through his power of attorney holder Mr. Nicholas Rodricks, praying to issue a writ, order or direction in the nature of certiorari for quashing of the demolition order dated 10.11.2014 (Annexure-2) passed by respondent No. 4 and Resolution No. 1 dated 8.11.2014 (Annexure-3) passed by respondent No. 4 and President Cantt. Board, Landour, Mussoorie as Well as the order dated 6.11.2014 (Annexure-4) passed by the General Officer Commanding in Chief, Headquarter Central Command, Lucknow.

Having heard the arguments for and against, it transpires that the matter, in controversy, pertains to a building at Survey No. 157, popularly known as Dahliya Bank, in the Cantonment area of Mussoorie. This property was purchased by Mr. Sanjay Narang on 23.1.2009 from one Mr. B.P. Singh. Further, the age old history of more than 150 years has been narrated in the judgment of this Court dated 14.8.2013, passed in Second Appeal No. 100 of 2012, which was rendered by the Hon''ble Justice Prafulla C. Pant, who now adorns the seat of Hon''ble the Apex Court. After such sale-deed, Mr. Narang applied for mutation before the concerned authorities. While mutation was still awaited, Mr. Narang applied for renovation/re-erection of this 150 years old building and submitted his ''lay out plan'' to the concerned authorities on 21.10.2009. Such plan remained lying in the office of the competent authority, so Mr. Narang sent reminders on 19.1.2011 and 14.2.2011 to the Cantonment Board for approval of such plan. The plan was, however, not sanctioned. So, Mr. Narang, taking shelter of sub-section (6) of section 238 of the Cantonments Act, 2006, assumed the ''deemed sanction'' of the plan in his favour and started the construction/re-erection work. When the Cantonment Board objected to such act, Mr. Narang filed the Original Suit No. 249 of 2011 in the Court of Civil Judge. No ad interim protection was granted to him and even, after the evidence of parties, the suit was dismissed by the Trial Court on 26.5.2012. With the result, the Cantonment Board did have every right to resist the construction raised by Mr. Narang, but despite such resistance, he continued to raise constructions and preferred the Civil Appeal No. 57 of 2012, which was allowed by the District Judge, Dehradun on 21.9.2012. So, the Cantonment Board came up before this Court in Second Appeal No. 100 of 2012, which was allowed on 14.8.2013 and the suit was decreed, as has been stated hereinabove by this Court.

It is also pertinent to mention here that after rejection of the ''lay out plan'', Mr. Narang preferred an appeal under the Cantonments Act and his appeal, after being heard on merits, was also dismissed by the competent officer viz. his ''lay out plan'' was never sanctioned and all the same, he continued to raise construction or re-erection work of the building under the guise of renovation.

It can significantly be noted that while admitting the Second Appeal No. 100 of 2012, this Court, on 11.10.2012, directed both the parties to maintain the status quo as on date, but it appears that instead of maintaining status quo, Mr. Narang continued the re-erection/re-construction work of the building, flouting the orders of this Court, as above. Ultimately, the said appeal was allowed deciding the substantial question No. 2 in favour of the Cantonment Board. Such substantial question was as follows:

"Whether the First Appellate Court has erred in law in not appreciating the mandatory provision of sections 3 and 7 of Works of Defence Act, 1903, which imposes restriction on any kind of construction/renovation in any building with a particular area of Defence establishment?"

This Court, while deciding the aforesaid substantial question, has held ''what matters in the present case is that if the construction is within the fifty metres of the crest of outer parapet of I.T.M. (a unit of DRDO), the same cannot be allowed to be raised. Section 7 of Works of Defence Act, 1903, requires even removal of existing buildings from such area. No deeming sanction under sub-section (6) of section 238 of the Act helps the plaintiff in the present case, as Works of Defence Act, 1903, is independent to Cantonments Act, 2006''.

The case laws cited by Mr. Narang were also considered by this Court while adjudicating the said appeal and it was found that in all the case laws, which were relied by Mr. Narang, the ongoing construction work was not over the area as notified under section 3 of the Works of Defence Act, 1903. However, in the controversy, in hand, the area where Mr. Narang has re-erected/re-constructed the building under the guise of renovation, is notified under section 3 of the said Act.

Learned Senior Counsel for Mr. Narang, in his supplementary-affidavit filed today, has drawn the attention of this Court towards the endorsement of the Chief Executive Officer, Landour (Mussoorie), wherein such Officer, in his handwriting, has certified that the ''construction is conforming to the building by-laws of Cantonment Board, Landour''. It cannot be overlooked that no such certification has ever been done by the Chief Executive Officer in the lay out plan which has been made the part of this writ petition. Moreover, he has not even put up his date appending to his signature making it clear as to on what date and basis, he has issued such a certificate. It appears that this certification has been procured from the Chief Executive Officer just overnight when yesterday, the Court declined to grant any ad interim stay against the demolition. Further, even if such certification is considered for a while, it is totally valueless for the reason that such certification cannot de hors the judgment of the High Court in the second appeal.

Learned Senior Counsel for Mr. Narang has drawn the attention of this Court towards the order dated 11.11.2013 passed by the Hon''ble Apex Court in Special Leave Petition Nos. 30518-30519 of 2013. It appears that on 11.11.2013, the Hon''ble Apex Court directed the parties to maintain the status quo as stood on that day in regard to the disputed property for a period of three weeks, and on dated 21.4.2014, the Hon''ble Apex Court was informed by the petitioner that the construction work has already been completed and he was doing only interior work in the house, already constructed. So, in light of the respective submissions of learned Counsel for the parties, the Hon''ble Apex Court observed that if the respondents seek a further direction in the matter, they are at liberty to move an application for the same.

Looking to the photographs which have been filed in Contempt Petition No. 336 of 2014, filed a day before the instant petition, and such file has been called up to appreciate the entire facts, it is abundantly clear that Mr. Narang did not show any regard towards his own undertaking and the judicial orders passed from time to time to maintain the status quo at the spot, and he kept on flouting the orders, not only of the Trial Judge but also upto the level of the High Court and perhaps even of the Hon''ble Apex Court. The fact cannot be over sighted that after the judgment of the second appeal on 14.8.2013, Mr. Narang also moved an application seeking review of the judgment passed by this Court, but the same, after having been heard, was rejected by this Court on 27.8.2013.

The argument of the learned Senior Counsel for the petitioner that the Chief Executive Officer of the Cantonment Board or the General Officer, Commanding in Chief of Central Command, Lucknow, did not have competence to pass the impugned orders, is totally baseless and unsubstantial and thus, rejected. In my considered view, this petition is bereft of any merit and is, accordingly, dismissed at the threshold.