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2018 DIGILAW 320 (UTT)

Sanjay Narang v. Union of India

2018-06-18

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. A part of Hill Station Mussoorie in Uttarakhand falls in a cantonment area and is governed under the Cantonments Act, 2006. The construction activities in this area are regulated by a Board, which is known as Landour Cantonment Board (from hereinafter referred to as LCB). New constructions in cantonment areas, even their repair, etc. are regulated under the provisions of the Cantonments Act, 2006. 2. The petitioner sought permission for a new construction from the LCB on 21.10.2009. The application of the petitioner remained pending and since no orders were passed therein, the petitioner filed a suit for declaration as well as for mandatory injunction on the basis of Section 238(6) of the Cantonments Act, 2006. Section 238 (6) of the Cantonments Act, 2006 reads as under: “238. Power of Board to sanction or refuse.- (1) The Board may either refuse sanction the erection or re-erection, as the case may be, of the building, or may sanction it either absolutely or subject to such directions as it thinks fit to make in writing in respect of all or any of the following matters, namely: - (2)……. (3)……. (4)……. (5)……. (6) Where the Board neglects or omits, for one month after the receipt of a valid notice, to make and to deliver to the person who has given the notice any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or re-erection, as the case may be: Provided that, in any case to which the provisions of sub-section (3) apply, the period of one month herein specified shall be reckoned from the date on which the Board has received the report referred to in that sub-section.” 3. The suit of the petitioner was dismissed by the Trial Court on 26.05.2012, against which the petitioner preferred a first appeal before the learned District Judge, Dehradun. The first appeal was allowed and the suit was decreed by the learned District Judge, Dehradun vide judgment and decree dated 21.09.2012. The suit of the petitioner was dismissed by the Trial Court on 26.05.2012, against which the petitioner preferred a first appeal before the learned District Judge, Dehradun. The first appeal was allowed and the suit was decreed by the learned District Judge, Dehradun vide judgment and decree dated 21.09.2012. Against the said judgment and decree dated 21.09.2012, the LCB preferred a second appeal before this Court, which was allowed vide judgment and order dated 14.08.2013 and the judgment and decree dated 21.09.2012 was set aside. Para 19 of the judgment and order dated 14.08. 2013 passed by this Court reads as under: “19. Accordingly, the second appeal is allowed. Impugned judgment and decree dated 21.09.2012 passed by the District Judge, Dehradun, in Civil Appeal No. 57 of 2012, is set aside. The suit No. 249 of 2011, filed by the plaintiff before Civil Judge (Sr. Div.), Dehradun, stands dismissed with the observation that if the plaintiff submits fresh plan leaving fifty meters of distance from the crest of outer parapet of ITM, the same may be considered by the appellant and respondent no. 2 in accordance with law. However, no orders as to costs.” 4. Against the judgment and order dated 14.08.2013, the petitioner preferred an S.L.P. before the Hon’ble Apex Court, which was dismissed on 21.04.2014. Meanwhile since the appeal of the petitioner was dismissed uptill the Apex Court, demolition order dated 10.11.2014 was passed by the LCB, inasmuch as on the basis of deemed sanction, the petitioner had made a construction. Against the demolition order the petitioner preferred a writ petition before this Court being Writ Petition (M/S) No. 2609 of 2014, which was dismissed by this Court vide order dated 27.11.2014. Thereafter against the order dated 27.11.2014, the petitioner preferred a special appeal being SPA No. 645 of 2014 before a Division Bench of this Court, which was also dismissed vide judgment dated 05.09.2017. Against the order dated 05.09.2017, the petitioner preferred an S.L.P. before the Hon’ble Apex Court which was also dismissed vide order dated 18.09.2017. Thereafter, after dismissal of the S.L.P., the petitioner preferred a review petition before the Division Bench of this Court, wherein the Division Bench of this Court vide order dated 10.01.2018 partly allowed the review petition with the following observations: “8. Thereafter, after dismissal of the S.L.P., the petitioner preferred a review petition before the Division Bench of this Court, wherein the Division Bench of this Court vide order dated 10.01.2018 partly allowed the review petition with the following observations: “8. We are of the view that the review is to be partly allowed and the impugned notice (Annexure-2) in relation to Building No. 2 and structures, namely, Building No. 6 falling under Building No. 2 will stand quashed. This we do for the purpose of carrying out measurement from the Work under the Defence of India Rules. Respondent nos. 3 & 4 will carry out the measurement. If it is found that the structures are within 50 meters, they will be free to carry out the demolition as per the notice. In case, it is found that it is beyond 50 meters, then the respondent Authorities will wait for a period of three months and this is in view of the pendency of the challenge against the order setting aside the sanction order dated 30.06.2012.” 5. In the above case, the Division Bench has asked the authorities to wait for a period of three months for the reasons that meanwhile during the pendency of the review petition, the petitioner has filed a fresh writ petition where the petitioner’s case was that while the matter was pending before the Civil Court at Dehradun, the LCB had granted sanction on 30.06.2012. However, since the Chief Executive Officer of the Board has got powers to refer the matter to the Principal Director Defence Estate under Section 56(4) of the Cantonments Act, 2006, where he does not agree with the decision of the Board, such powers were exercised by the Chief Executive Officer and thereafter vide order dated 04.07.2012, the Chief Executive Officer referred the matter to the Principal Director Defence Estate. As per Section 56(5) of the Cantonments Act, 2006, the matter was referred to the General Officer Commanding-in-Chief, Central Command, who came to the conclusion that sanction cannot be given and upheld the order of the Chief Executive Officer, vide its order dated 16.11.2012. This order dated 16.11.2012 was again challenged by the petitioner before this Court by means of Writ Petition (M/S) No. 118 of 2013 on ground that before passing the order dated 16.11.2012, opportunity of hearing has not been given to the petitioner. This order dated 16.11.2012 was again challenged by the petitioner before this Court by means of Writ Petition (M/S) No. 118 of 2013 on ground that before passing the order dated 16.11.2012, opportunity of hearing has not been given to the petitioner. This Court vide order dated 11.06.2013 allowed the writ petition and remanded the matter to the General Officer Commanding-in-Chief of Central Command with direction to pass a fresh order after granting opportunity of hearing to the petitioner. Subsequently, vide order dated 18.05.2016, the General Officer Commanding-in-Chief after giving opportunity of hearing to the petitioner, uphold its earlier order dated 16.11.2012 holding that sanction cannot be granted. Against the order dated 18.05.2016, the petitioner filed a review petition under Section 57 of the Cantonments Act, 2006 before the Central Government, which has also been dismissed vide order dated 25.11.2016. Hence, the petitioner has filed the present writ petition. 6. At this juncture, it must be stated that principal contention of the defence authorities as well as the LCB was that since construction is within 50 meters of defence establishment, hence, it cannot be permitted. 7. A very serious objection has been raised by the counsel for the L.C.B., Mr. B.S. Adhikari, that the petitioner has not come with clean hands before this Court. In fact the petitioner has deliberately withheld the fact before the first appellate authority, inasmuch as the case of the petitioner that a sanction was given to him by the Cantonment Board on 30.06.2012 was never placed before the first appellate court. This fact was never brought to the notice of this Court in second appeal and earlier round of litigation. 8. During the course of argument, the learned counsel for the petitioner, Mr. Rohan Thawani has also argued that in order dated 25.11.2016 it has come that the petitioner was given personal hearing by the Defence Minister. In this regard, the case of the petitioner therefore would be that since the Defence Minister had partly heard the petitioner, the order ought to have been passed by the Defence Minister and not by the Deputy Director. What is the merit of such an argument has not been stated. The authority which was to hear the matter is not the Minister nor can the matter be heard by the Hon’ble Minister in person, but it is to be heard by the Secretary or the designated officer. What is the merit of such an argument has not been stated. The authority which was to hear the matter is not the Minister nor can the matter be heard by the Hon’ble Minister in person, but it is to be heard by the Secretary or the designated officer. This argument is totally misconceived. 9. There is a clear and categorical finding by the Cantonment authorities and also by this Court that a sanction to the map cannot be granted in view of Section 3 and 7 of the Works and Defence Act, 1903 since no construction is allowed within fifty meters from the Institute of Technology Management, Landour, which is a “defence establishment”. Moreover, if any, construction has been made by the petitioner, it has been done either on the basis of “deemed sanction”, or on the basis of sanction granted by the Board dated 30.06.2012, both of which are illegal, as such sanctions cannot be considered as “sanction” made by the authority under the law. In any case, this matter has been decided against the petitioner in civil proceedings initiated by him. Therefore, any construction which is made by the petitioner is totally illegal and is liable to be demolished. 10. In view of the above, writ petition fails and is hereby dismissed. 11. The fact that the petitioner has not approached this Court with clean hands is apparent. He continues to agitate a matter and keeps relying on one document or the other, when he should have been fair to the Court and placed all the relevant facts clearly initially when he had approached the court. The so called sanction on 30.06.2012 was never placed before the court below, or before this Court at the relevant time. The petitioner now continues to agitate the same by filing petition after petition. The petitioner has clearly abused the process of law. The writ petition is therefore dismissed with a cost of Rs. 1,00,000/- (Rupees One Lakh only) which shall be deposited by the petitioner in the Registry within four weeks from the date a certified copy of this order is produced.