Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 22 (JHR)

Menon Ekka v. Union of India

2009-01-07

AJIT KUMAR SINHA

body2009
Order The present writ petition has been preferred for issuance of an appropriate writ, order or direction to quash the general notice issued by respondent no. 3, Deputy Commissioner, Ranchi, as published in the local vernacular "Hindustan" dated 20.12.2008, whereby and whereunder the petitioner alongwith others have bee noticed to remove their residential building by 30.12.2008 otherwise the same would be removed by force. 2. Learned counsel for the petitioner submits that the notification in issue as published in the daily newspaper "Hindustan" dated 20.12.2008 is violative of the statutory law, as 'provided under the Aircraft Act, 1934 and in particular Section 9-A(3). He has further referred to and relied upon Rules 3 to 6 of the Aircraft (Demolition of Obstructions caused by Buildings and Trees etc.) Rules, 1994, to support his contention. According to the learned counsel for the petitioner, before demolition a notice has to be issued and/or it has to be pasted at a specific place and then only the authorities can initiate action. Learned counsel further submits that the notification has been issued without any notice and, thus, the same is illegal and liable to be set aside. 3. Learned counsel for the petitioner has referred to and relied upon a judgment as reported in A. I. A. 2000 Andhra Pradesh 459 (Flag Officer, Commanding-in-Chief, Eastern Naval Command, Visakhapatnam & Ors. vs. Shri Vijaya Visakha Co-op. Milk Dairy, Visakhapatnam & Anr.) and in particular paragraph no. 29, which is quoted as under:- "29. In the result, the impugned order is set aside. The competent authority under the Aircraft Act applicable to the Visakhapatnam Aerodrome shall follow the procedure prescribed while passing the orders for demolition of any building as required under the relevant Rules and after affording an adequate opportunity to the petitioner for making his representation as required under the said Rules. It shall be open to the competent authority, at Visakhapatnam Airport to take steps to cancel the NOC after giving an opportunity of being heard to the petitioner" 4. Learned counsel for the respondent-State submits that the notification has been issued under Section 9-A by the Central Government, as provided under the Aircraft Act, 1934 and the State through the office of the Deputy Commissioner has published the notification. 5. Learned counsel for the respondent-State submits that the notification has been issued under Section 9-A by the Central Government, as provided under the Aircraft Act, 1934 and the State through the office of the Deputy Commissioner has published the notification. 5. The impugned notification, sought to be challenged in the present writ petition, was issued by the Central Government under Section 9-A of the Aircraft Act, 1934, as published in the daily newspaper "Hindustan" dated 20.12.2008. Section 9-A of the Aircraft Act, 1934 empowers the Central Government to prohibit or regulate construction of building, planting of trees etc. by issuance of a notification . in the official gazette and as per Section 9-A(3), wherein, a notification has been issued under. sub-section (1) of Section 9-A, too owner or the person under the control of any such building, tree etc., sought to be demolished, has to be served a copy of the notification. Thus, it will be evident that Section 9-A(3) of the Aircraft Act, 1934 comes into operation subsequent to issuance of the notification by. the Central Government and not prior to issuance of notification under Section 9-A(1) of the Aircraft Act, 1934. 6. The petitioner's contention that Rules 3, 4, 5 and 6 of the Aircraft (Demolition of Obstructions caused by Buildings and Trees etc.) Rules. 1994 have not been complied with, is fallacious and unsustainable. Rules 3, 4, 5 and 6 of the Aircraft (Demolition of Obstructions caused by Buildings and Trees etc.) Rules, 1994 prescribe the statutory procedures to be followed before demolition. Rule 3 comes into operation only after issuance of notification by the Central Government under sub-section (1) of Section 9-A of the Air craft Act, 1934 and the same is in accordance with sub-section (3) of Section 9-A of the Aircraft Act, 1934. 7. This Rule mandates that the Director General of Civil Aviation shall cause a copy of the notification referred to above to be served through the officer-in-charge of the Aerodrome on any owner or occupier of the building which is sought to be demolished on the ground that it endangers the safety of flights. 8. 7. This Rule mandates that the Director General of Civil Aviation shall cause a copy of the notification referred to above to be served through the officer-in-charge of the Aerodrome on any owner or occupier of the building which is sought to be demolished on the ground that it endangers the safety of flights. 8. Rule 4(1) of the Aircraft Rules mandates that while serving a copy of the notification on the person concerned it shall be accompanied by an order of the Director General of Civil Aviation, directing the owner to furnish to the officer-in-charge of the aerodrome within the specified period, a plan showing the location of the building or tree as the case may be, and also its dimensions or any other details specified in the order. 9. After following the statutory requirement, as provided under Rule 4(2) & Rule 5(2), Rule 6 empowers the Director General, Civil Aviation, to pass final orders and it will be evident that the aforesaid stage is yet to reach and till date no final order has been passed and, thus, the writ petition itself is premature. 10. The reliance to the Division Bench judgment, as reported in A.I.R. 2000 Andhra Pradesh 459 (supra), in the present case is misconceived and misplaced for the sale reason that this was a case where order of demolition had already been placed on 16.8.1996 without following the procedure and the statutory requirement of service of notice and without even affording adequate opportunity. Even the contention of the learned counsel for the petitioner that the impugned notification, as published in the daily newspaper on 20.12.2008, is an order of demolition is on the face of it erroneous, unsustainable and liable to be rejected. On a bare reading of the notification, as published, it will be evident that it clearly specifies through the notice to the owners to remove the illegal structure on their own volition till 30.12.2008, failing which the competent authorities will proceed in accordance with law as per the statutory Rules and, thus, there is nothing illegal about the same. 11. Considering the aforesaid facts and circumstances of the case, this writ premature is, accordingly, dismissed, but without any order as to costs.