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2016 DIGILAW 473 (UTT)

Dharam Singh v. Union of India

2016-08-16

SUDHANSHU DHULIA

body2016
JUDGMENT : In both these writ petitions, the petitioners have challenged the notice dated 02.06.2014 and 01.08.2014 passed by the Chief Executive Officer, Cantonment Board, Ranikhet which is to the effect of demolishing the unauthorized constructions which the petitioners have made on the property of Cantonment Board. The property admittedly belongs to the Cantonment Board, Ranikhet and the same was never allotted or given to the petitioners on lease by the Cantonment Board at any point of time. The only right they claim is the right for construction which was allegedly given to them by one Madan Mohan Khulbey who was the original lessee of the property. The lease deed given in favour of Mr. Madan Mohan Khulbey had expired long back in the year 1960 and since then it has not been renewed. What right the petitioners have for making the alleged constructions if at all they had, has not been explained by them anywhere. 2. In fact, learned Senior Counsel for the petitioners Mr. Sharad Sharma has not been able to satisfy this Court as to under what provision of law the petitioners could have raised the construction on the property, on which they had absolutely no right at all, at any point of time. 3. One technical question though has been raised on behalf of the petitioners, which is that the notices given to them on 02.06.2014 and 01.08.2014 are actually under Section 256 of the Cantonments Act, 1924, which has already been repealed. The old Cantonments Act, 1924 stood repealed by the Cantonments Act, 2006 and the repealing and saving clause of the new Act (i.e., the Cantonments Act, 2006) clearly states as under:- “360. Repeals and savings.- (1) The Cantonments Act, 1924 (2 of 1924), is hereby repealed. The old Cantonments Act, 1924 stood repealed by the Cantonments Act, 2006 and the repealing and saving clause of the new Act (i.e., the Cantonments Act, 2006) clearly states as under:- “360. Repeals and savings.- (1) The Cantonments Act, 1924 (2 of 1924), is hereby repealed. (2) Notwithstanding the repeal of the Cantonments Act, 1924 (2 of 1924),- (a) any appointment, notification, order, scheme, rule, form, notice or bye-law made or issued, and any licence or permission granted under the Act shall, in so far as it is not inconsistent with the provisions of this Act continue in force and be deemed to have been made, issued or granted, under the provisions of this Act, unless and until it is superseded by any appointment, notification, order, scheme, rule, form, notice or bye-law made or issued or any licence or permission granted under the said provisions; (b) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Board shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Board constituted under this Act; (c) all budget estimates, assessments, valuations, measurements or divisions made by the Board shall in so far as they are not inconsistent with the provisions of this Act, continue in force and be deemed to have been made under the provisions of this Act unless and until they are superseded by any budget estimate, assessment, valuation, measurement or division made by the Board constituted under the said provisions; (d) all properties, movable and immovable and all interests of whatsoever nature and kind therein, vested in the Board shall with all rights of whatsoever description, use, enjoyed or possessed by the said Board vest in the Board constituted under this Act; (e) all rates, taxes, fees, rents and other sums of money due to the Board shall be deemed to be due to the Board constituted under this Act; (f) all rates, taxes, fees, rents, fares and other charges shall, until and unless they are varied by the Board constituted under this Act, continue to be levied at the same rate at which they were being levied by the Board immediately before the commencement of this Act; (g) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Board may be constituted or instituted by or against the Board constituted under this Act.” 4. It appears that the petitioners have been given notices by the Cantonment Board under the Cantonments Act, 1924 which was not in force. It is for this reason, that reference of Section 256 of the Cantonments Act, 1924 has been given in the notices dated 02.06.2014 and 01.08.2014. 5. Section 256 of the Cantonments Act, 1924 reads as under:- “Section 256. Powers of Board in case of non-compliance with notice, etc.- In the event of non-compliance with the terms of any notice, order or requisition issued to any person under this Act, or any rule or bye-law made thereunder, requiring such person to execute any work or to any act, it shall be lawful for the Board or the civil area committee or the Executive Officer at whose instance the notice, order or requisition has been issued, whether or not the person in default is liable to punishment for such default or has been prosecuted or sentenced to any punishment therefore, after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the act or work required to be done or executed by him, and all the expenses incurred on such account shall be recoverable by the Executive Officer on demand, and if not paid within ten days after such demand, shall be recoverable in the same manner as moneys recoverable by the Board under section 259: Provided that where action or step relates to the demolition of any erection or re-erection under section 185 or the removal of any projection or encroachment under section 187, the Board or the civil area committee or the Executive Officer may request any police officer to render such assistance as considered necessary for the lawful exercise of any power in this regard and it shall be the duty of such police officer to render forthwith such assistance on such requisition.” 6. Under the Cantonments Act, 2006, a similar provision has been contained under Section 320 which reads as under:- “Section 320. Under the Cantonments Act, 2006, a similar provision has been contained under Section 320 which reads as under:- “Section 320. Powers of Board in case of non-compliance with notice, etc.- In the event of non-compliance with the terms of any notice, order or requisition issued to any person under this Act or any rule or bye-law made thereunder, requiring such person to execute any work or to do any act, it shall be lawful for the Board, or the civil area committee or the Chief Executive Officer at whose instance the notice, order or requisition has been issued whether or not the person in default is liable to punishment for such default or has been prosecuted or sentenced to any punishment therefore, after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the act or work required to be done or executed by him, and all the expenses incurred on such account shall be recoverable by the Chief Executive Officer on demand, and if not paid within ten days after such demand, shall be recoverable in the same manner as moneys recoverable by the Board under section 324: Provided that where the action or step relates to the demolition of any erection or re-erection under section 248 or the removal of any projection or encroachment under section 252, the Board or the civil area committee or the Chief Executive Officer may request any police officer to render such assistance as considered necessary for the lawful exercise of any power in this regard and it shall be the duty of such police officer to render forthwith such assistance on such requisition.” 7. For abundant precaution, the Chief Executive Officer of the Cantonment Board has clearly stated that the notice which was earlier given under Section 256 of the Cantonments Act, 1924 should now be read as notice given under Section 320 of the Cantonments Act, 2006. As such there is no anomaly, much less any technical flaw in the notices as alleged by the learned Senior Counsel for the petitioners. 8. As such there is no anomaly, much less any technical flaw in the notices as alleged by the learned Senior Counsel for the petitioners. 8. Another argument of the learned Senior Counsel for the petitioners is that under the Cantonments Act, 1924, notice under Section 256 of the old Act can only be given after a resolution of the Board whereas under the new Cantonments Act, 2006 notice has to be given only by the Chief Executive Officer. 9. This contention of the petitioners appears to be incorrect inasmuch as language of Section 320 of the Cantonments Act, 2006 clearly states that a notice under Section 320 can be given by the Board as well as by the Chief Executive Officer. Therefore, there is absolutely no anomaly in the orders dated 02.06.2014 and 01.08.2014. 10. The writ petitions have no merit and are hereby dismissed. Interim order dated 12.08.2014 stands vacated. Respondent authorities are hereby directed to take an action against the petitioners in accordance with law.