Taramani Devi vs Union of India(UOI) and Others

S.N.P. Singh, J.—In this writ application under Articles 226 and 227 of the Constitution Srimati Taramani Devi, the petitioner, has challenged the validity of the notice dated the 19th of December, 1970 issued by the Cantonment Board, Dinapore, u/s 185 of the Cantonments Act, 1924, hereinafter to be called "the Act" (Annexure 7) and the order dated the 22nd of July 1968, passed by the Officer Commanding-in Chief, Central Command (respondent No. 21 u/s 52(1)(b) of the Act (Annexure 8).

The petitioner resides in a house standing on survey plot Nos. 47/288 and 47/289 bearing holding Nos. 86 and 87 of Mahal I, Ward No. VI of the Dinapore Cantonment. In the month of November, 1967, the petitioner made an application before the Dinapore Cantonment Board (hereinafter to be called "the Board") u/s 179 of the Act for addition of two rooms with lavatory and bath room in the first floor of the building and submitted the plan. The application of the petitioner was considered by the Board and by Resolution No. 2 dated the 30th of January, 1968, the sanction was accorded. According to the resolution the petitioner was required to start work within one year from the date of receipt of sanction and to complete the work within one year from the date of commencement of the work. As stated in paragraph 6 of the writ application, the petitioner on receipt of the sanction order immediately started construction in the first floor of the building and completed it in the month of April 1968. It appears that when the matter came to the notice of the Officer Commanding-in-Chief, Central Command (respondent No. 2), he in exercise of the powers vested in him u/s 52(1)(b) of the Act suspended for three months the resolution of the Board according sanction to the petitioner. By a letter dated the 26th of April, 1968, a copy whereof has been made Annex. ''B'' to the show cause filed on behalf of respondents 3 and 4, the Officer Commanding-in-chief, Central Command, intimated to the President of the Board the order of suspension of the resolution No. 2 of the Board for three months and asked him to show cause as to why the direction be not issued to the effect that the decision as contained in the resolution of the Board should not be carried into effect. On the 13th of May, 1968, the Executive Officer of Dinapore Cantonment intimated to the petitioner that the higher authorities had suspended the resolution of the Board u/s 52 of the Act as the sanction accorded by the Board was objectionable from land point of view and was contrary to the provisions of the letter of the Government of India. Ministry of Defence. The petitioner was warned that any action taken on the resolution of the Board would be entirely at her risk and cost. A copy of that letter has been made Annexure ''2'' to the writ application. The petitioner on receipt of this letter sent a reply on the 18th of May, 1968. In her reply the petitioner asserted that the sanction of the plan having not been cancelled by the Board, the construction of the structure as per the sanctioned plan was immediately taken up on receipt of the sanctioned plan and the construction was completed long time back. A copy of that letter has been made Annex. ''3'' to the writ application. When no reply was received from the Board by the Officer Commanding-in-Chief, Central Command, he by his order dated the 22nd of July. 1968 fAnnexure 8) directed u/s 52(1)(b) of the Act that the resolution of the Board should not be carried into effect. A copy of that order has also been made Annexure ''E'' to the show cause filed on behalf of respondents 3 and 4. Subsequently by a letter dated the 31st of October, 1968 (Annexure ''F'' to the show cause filed on behalf of respondents 3 and 4), respondent No. 2 enquired from the President of the Board as to what action had been taken by him in the case of those houses in respect of which the Board''s resolution sanctioning the plans had been set aside under the letter dated the 22nd of July, 1968. Earlier on the 14th of August. 1969, the Executive Officer of the Dinapore Cantonment had sent a notice to the petitioner to stop further construction of the building. A copy of that notice has been made Annexure ''6'' to the writ application. The Board ultimately resolved by a majority of votes on 10-11-1970 that a notice u/s 185(2) of the Act be served upon the petitioner for demolition of a portion of the first floor within a period of 30 davs as sanction for the same had been set aside by respondent No. 2 u/s 52(1)(b) of the Act. The elected members of the Board dissented from the above resolution. A copy of that resolution has been made Annexure ''G'' to the show cause filed on behalf of respondents 3 and 4. In pursuance of that resolution the notice u/s 185(2) of the Act was issued on the petitioner on the 19th of December, 1970 (Annexure 7). The petitioner by that notice was asked to demolish the construction in the first floor of the building within thirty days of the receipt of the notice.

Mr. Basudeva Prasad. learned counsel appearing for the petitioner, raised three contentions. In the first place, he submitted that the order (Annexure 8) is ultra vires Section 52(1)(b) of the Act and the notice (Annexure 7) is ultra vires Section 185(2) of the Act. Secondly, he urged that the order (Annexure 8) has been passed in contravention of the principles of natural justice because no notice was given to the peti-tioner by respondent No. 2 to show cause as to why the resolution of the Board according sanction of the plan be not carried into effect before passing the impugned order. Thirdly, he contended that Sections 52(1)(b) and 185(2) of the Act are ultra vires Articles 19(1)(f) and 14 of the Constitution.

Before dealing with the contentions which have been raised on behalf of the petitioner, I would indicate the stand which has been taken by the respondents in this writ application. In the show cause filed on behalf of respondents 3 and 4 as well as in the counter-affidavit filed on behalf of respondents 1 and 2 it has been asserted that survey plots Nos. 47/288 and 47/289 bearing holding Nos. 86 and 87 of Mahal I, Ward No. VI of the Dinapore Cantonment are class B (31 lands of which the Government of India is the landlord and which is managed by the Board and is held on the basis of old grant. On the lands of old grant character only the Government of India was competent to give approval. Accordingly, when the sanction of the plan by the Board was communicated to the petitioner, a letter dated the 2nd of March, 1968. was sent by the Cantonment Executive Officer to the petitioner to the effect that the sanction was not in conformity with the order of the higher authorities and the plan involved subdivision of site in the form of first storey A copy of that letter has been made Annexure ''A'' to the show cause filed on behalf of respondents 3 and 4. The petitioner did not pay any heed to that letter and started construction. When the matter came to the notice of respondent No. 2. he suspended the resolution of the Board according sanction for three months as he found the sanction objec-tionable from land point of view and contrary to the provisions of Government of India. Ministry of Defence (Military Lands and Cantonments Directorate) letter dated the 9th of August. 1957. A copv of that letter has been made Annexure ''1'' to the counter-affidavit filed on behalf of respondents 1 and 2. The relevant portion of that letter reads as follows:

"Government have been advised in another analogous case that the construction in place of single storey building of a new building consisting of more storeys and or enlargement of existing buildings to contain additional storeys or larger number of inhabitable tenements on sites held under Old Grant terms essentially entails variation in the terms of the grant and that such construction may be refused unless the grantee is prepared to execute on payment of full annual rental for the site and suitable premium." As stated in the show cause filed on behalf of respondents 3 and 4, the Board in according sanction of the building plan of the first storev of the house of the petitioner had acted contrary to the directions of the Command and the decision of the Board was rightly annulled by the Officer Commanding-in-Chief, Central Command. A CODV of the letter dated the 1st of May. 1967. containing the directions of the G. O. C.-in-Chief, Central Command, has been made Annexure ''1'' to the show cause filed on behalf of respondents 3 and 4. According to that letter whenever any building application is submitted requesting for construction of additional storeys on a distinct site held on old erant terms an objection should always be raised from land point of view and building plans should not be sanctioned. In case the holder of occupancy rights comes forward with a request for taking the site on lease the same should first be dealt with and after Government sanction is accorded to the lease of the site then only the building applications/plans should be entertained and considered. A copy of the letter of the Government of India dated the 23rd of March, 1968, in which instructions have been given has been made Annexure ''J'' to the show cause filed on behalf of respondents 3 and 4. Thus, according to the stand taken by the respondents, as the sanction has been illegally given respon- dent No. 2 suspended the resolution of the Board and subsequentlv issued a direction that the resolution should not be carried into effect. As stated in the show cause . filed on behalf of respondents 3 and 4. the Board was bound to execute the order of the Command and accordingly the notice (Annexure 7) has been issued to the petitioner. It has been further stated in the show cause that the petitioner would be entitled to full compensation for the loss actually incurred in consequence of the demolition of any building which had been erected prior to the date on which the order of the Officer Commanding-in-Chief, Central Command, was communicated to her.

In the rejoinders to the show cause filed by respondents 3 and 4 and the counter-affidavit filed on behalf of respondents 1 and 2 the petitioner has asserted that she is the actual owner of the land over which the building stands. She has denied the fact that the site of the building is on old grant. In my opinion, it is not necessary to go into the controversial question as to whether or not the site on which the building of the petitioner stands is on old grant.

Now I proceed to consider the Points which have been raised by Mr. Basudeva Prasad appearing for the petitioner. Section 52(1)(b) of the Act reads as follows:

(1) The Officer Commanding-in-Chief, the Command, may at any time

(a) .....

(b) direct the suspension, for such period as may be stated in the order, of action on any decision of a Board, other than a decision which has been referred to him under Sub-section (1) of Section 51, and thereafter cancel the suspension or after giving the Board a reasonable opportunity of showing cause why such direction should not be made, direct that the decision shall not be carried into effect or that it shall be carried into effect with such modifications as he may specify".

It is clear from the above provisions that very wide powers have been conferred on, the Officer Commanding-in-Chief, the Command. by an order he can direct the suspension of action on any decision of the Board other than a decision which has been referred to him under Sub-section (1) of Section 51. He can also direct that the decision of the Board shall not be carried into effect or that it shall be carried into effect with such modifications as he may specify. In the latter case, namely, where he directs that the decision of the Board shall not be carried into effect or it shall be carried into effect with modifications, he has to give the Board a reasonable opportunity of showing cause why such directions should not be made. In the instant case admittedly the decision of the Board had not been referred to him under Sub-section (1) of Section 51 of the Act and as such in terms of Section 52(1)(b) respondent No. 2 had the authority to pass the impugned order (Annexure 8) direct-ins that the decision as contained in the Board''s resolution according sanction to the building plan of the petitioner shall not be carried into effect.

Section 185(2) of the Act runs thus:

"185 (2) -- A Board shall 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 order u/s 181 sanctioning the erection or re-erection has been suspended by the Officer Commanding-in-Chief, the Command, under Clause (b) of Sub-section (1) of Section 52, and shall in any such case in like manner direct the demolition or alteration, as the case may be, of the building or any part thereof so erected or re-erected where the Officer Commanding-in-Chief, the Command, thereafter directs that the order of the Board sanctioning the erection or re-erection of the building shall not be carried into effect or shall be carried into effect with modifications specified by him:

Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or alteration of any building which has been erected or re-erected prior to the date on which the order of the Officer Com-mandins-in-Chief, the Command, has been communicated to him.'''' A plain reading of Sub-section (2) of Section 185 shows that in a case in which the order of sanction passed u/s 181 for erection or re-erection of a building has been suspended by the Officer Commanding-in-chief, the Command, under Clause (b) of Sub-section (1) of Section 52, the Board shall give a notice in writing directing the owner, lessee or occupier of the land to stop the erection or re-erection of the building as the case may be. In a case in which the Officer Commanding-in-Chief, the Command, gives a direction that the order of the Board sanctioning erection or re-erection of the building shall not be carried into effect, the Board shall give a notice in writing to the owner, lessee or occupier of the land directing him to demolish the building. The proviso to the section makes it clear that the Board has to pay compensation to the owner of the building for any loss incurred by him in consequence of the demolition of the building which had been erected prior to the date on which the order of the Officer Commanding-in-Chief, the Command, has been communicated to him. Mr. Basudeva Prasad submitted before us that the expression "the decision shall not be carried into effect" occurring in Section 52(1)(b) conveys the meaning that the order of the Board has not been fully implemented. Therefore, reading Sections 52(1)(b) and 185(2) harmoniously, only when the construction of the building is not completed an order u/s 52(1)(b) can be passed and a notice for the demolition can be given under Sub-section (2) of Section 185 of the Act. Thus, according to learned counsel, the Officer Commanding-in-Chief, the Command, had no authority to direct that the resolution of the Board sanctioning the plan to the petitioner shall not be carried into effect as the petitioner had completed the construction of the upper storey. Annexure 8 is, therefore, ultra vires Section 52(1)(b) of the Act. Similarly, the notice (Annexure 7) is also ultra vires Section 185(2) of the Act as such a notice cannot be given in respect of a building which has already been erected according to the sanctioned plan. It is difficult to accept the submission made by Mr. Basudeva Prasad. The expression "the decision shall not be carried into effect" occurring in Section 52(1)(b) does not convey the meaning that something has remained to be done in pursuance of the decision of the Board. It is clear from the provisions of Section 185(2) of the Act that the Board can direct the demolition of a building even when the erection is complete if the" Officer Commanding-in-chief, the Command, directs that the order of the Board sanctioning the erection shall not be carried into effect. In such circumstances the Board has only to pay full compensation to the owner of the building for the loss incurred by him.

For the foregoing reasons, I do not find any substance in the contention raised by Mr. Basudeva Prasad that Annexure ''8'' is ultra vires Section 52(1)(b) and the notice (Annexure 7) is ultra vires Section 185(2) of the Act.

Now I proceed to consider the second contention which has been raised by Mr. Basudeva Prasad. According to learned counsel, the petitioner was entitled to a reasonable opportunity of showing cause before the direction (Annexure 8) was given that the resolution of the Board sanctioning the building plan should not be carried into effect. There is substance in this contention. As provided u/s 52(1)(b) of the Act, only the Board is given a reasonable opportunity of showing cause why such a direction should not be made. In a case where the cancellation of the order or the resolution of the Board affects the right of a third Person, the order of the Officer Commanding-in-Chief. the Command, has to be made in a manner consonant with the rules of natural justice. It is a well-settled principle that even an administrative order, which involves civil consequences, must be made consistently with the rules of natural justice . A reference may be made to the case of State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, . In a recent decision of the Supreme Court in the case of State of Punjab Vs. K.R. Erry and Sobhag Rai Mehta, it has been observed as follows:

"With the proliferation of administrative decisions in the welfare State it is now further recognised by Courts both in England and in this country, (especially after the decision of House of Lords in 1964 AC 40) that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects individual rights or interests and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard."

In the instant case the petitioner was not given any opportunity of showing cause before the order (Annexure 8) was passed. Not only that, even the Board, to whom the notice to show cause was issued, did not file any show cause. The Board also did not give any opportunity to the petitioner to be heard before issuing the notice (Annexure 7). There can be no dispute that the petitioner''s right to property was seriously affected by the order of the Officer Commanding-in-Chief, the Command (Annexure 8) and the notice (Annexure 7) which was issued to the petitioner in pursuance of the order. The second contention, therefore, which has been raised on behalf of the petitioner must, be upheld and the order (Annexure 81 and the notice (Annexure 7) must be quashed on the simple ground of violation of the basic rules of natural justice.

It may be stated here that Mr. Tara Kant Jha made a submission to the effect that there is a provision for appeal against the notice of the Board to alter or demolish a building before the Officer Commanding-in-chief, the Command, and as such there was no violation of the principles of natural justice when no notice was given to the petitioner by respondent No. 2 before he passed the impugned order (Annex. 8). Section 274 of the Act provides that any person aggrieved by any order described in the second column of Schedule V may appeal to the authority specified in that behalf in the third column thereof. As provided in Schedule V. as against the notice of the Board to alter or demolish a building u/s 185 an appeal lies before the Officer Commanding-in-Chief, the Command, within thirty days from the service of notice. In my opinion, it is doubtful whether in an appeal against the notice issued u/s 185 of the Act, which lies before the same authority who has passed the order u/s 52(1)(b), namely, the Officer Commanding-in-Chief, the Command, the achieved person can question the validity of his order u/s 52(1)(b). In any view of the matter, the provision for appeal against the notice issued u/s 185 by the Board does not make any difference. The principles of natural justice require that before an order u/s 52(1)(b) is passed, a reasonable opportunity to show cause must be given to the person whose right is affected by the order.

Mr. Basudeva Prasad submitted in course of his argument that if his contention on the second point is upheld then it is not necessary to decide the question regarding the constitutional validity of Sections 52(1)(b) and 185(2) of the Act. Mr. Tara Kant Jha, learned counsel appearing on behalf of respondents 1 and 2, however, urged that the question regarding the validity of the two sections may also be decided. In my opinion, since this application must succeed on the second point it is not necessary to consider the third contention which has been raised on behalf of the petitioner. If and when an occasion arises in future the petitioner may raise the question regarding the validity of Sections 52(1)(b) and 185(2) of the Act.

In the result, the application is allowed and the order as contained in Annexure 8 and the notice as contained in Annexure 7 are quashed. There will be no order as to costs.

Needless to add that if advised, respondent No. 2 may pass a fresh order in accordance with law u/s 52(1)(b) of the Act after giving a reasonable opportunity to the petitioner to show cause and to be heard. I may also add that if a notice to show cause is given to the petitioner, it will be open to her to raise all such questions of fact and law which she may be advised to raise, before respondent No. 2.

S.P. Sinha, J.

I agree.