CANTONMENT BOARD BELGAUM Vs. ASIF ALIM SAIT

JUDGEMENT

(1.) THESE twoappeals are directed against a common order passed by the learned single Judge in Writ petition Nos. 25547 and 30905 of 1992. The facts of the case are within a very narrow compassinsofar as it is the case of the present appellants who are the Cantonment board, Belgium that the Respondents i; 2 and 3 who are the owners of a property situated at D. C. 178, Havelock Road, Belgaum had applied to the Board for carrying out of some repairs to the roof of the structure and that they were informed that no formal permission is required for such work but, it was also clarified to them that the. height of the roof was not to be raised under the guise of repairs and furthermore, that no additions or alterations are to be undertaken. The applicants were put on notice of the fact that if unauthorised construction work is carried out, that they will be dealt with in accordance with the provisions of the Cantonments Act, l924. According to the Board, the owners resorted to the usual ploy of not only carrying out the major alterations to the structure but, that they virtually reconstructed it. When this activity came to the notice of the Board, a notice under Section 185 of the Act was served on the owners calling upon them to stop the illegal construction and secondly to demolish the unauthorised structure. What transpired was something that invariably took place insofar as the Board kept issuing notice after notice repeatedly calling upon the owners to stop the construction and to demolish the unauthorised structure and the owners kept ignoring it. In sum and substance, the structure was completed but, as far as the notices were concerned as against the first set of notices, the owners resorted to the appellate remedy and on their appeals being dismissed, they approached the High Court through a writ petition. A slight difference as far as the second writ petition is concerned is that it covers the last set of notices wherein the appellate remedy has not been resorted to and consequently, the contention of the Board as far as the second writ petition is concerned was to the effect that the petition itself is not maintainable insofar as the petitioners had not exhausted the alternate statutory remedy available to them. Also, it was pointed out that the line of action followed by the owners was such that they defiantly continued with the construction until it was completed and at a late stage, they had started availing of the legal remedies and as far as the second Writ petition No. 30905/1992 was concerned, that it was liable to be dismissed on, the ground of delay and laches. The learned single Judge heard the parties and since the subject-matter of the dispute or the cause of action was virtually overlapping in the two petitions, the learned single Judge has decided the point of law through the common order without really entering into the grounds of objection vis-a-vis the second petition which in our considered view ought to have been dismissed on the basis of the objections that were raised by the Respondent-Board.

(2.) IT is necessary for us to summarise the contentions raised on behalf of the petitioners who are really the contesting respondents before us in these appeals. The main plank of challenge on which they had approached the High Court proceeds on the footing that the notices served on them are defective and that the line of action adopted by the Cantonment Board does not conform to the procedure prescribed by law or accepted by law and that consequently, the notices are liable to be quashed. To summarise the grounds of challenge, what is contended by the owners is that the notice served on them is a composite notice calling upon them to stop work and to demolish the unauthorised structure. The principal contention raised was that the order to demolish the structure is in the nature of a final order and even assuming such a course of action was ultimately found to be justified, that it is well settled law that before an order of demolition is passed, that the affected party must be afforded an opportunity of being heard. On the basis of the principles that govern the rules of natural justice, the petitioners contended that the notice in question conveys a final decision to demolish the structure which order can never have been passed without hearing them and that consequently, the notice is bad. The same contention was raised with regard to the first part of the notice served on the owners whereby it was contended that even the stoppage of work is a course of action that has civil and monetary consequences and that consequently, before such an order is passed that it is necessary to afford the party an opportunity to show cause. The last ground of attack was the obvious one viz. , that if the authority has for whatever reason arrived at a final decision, that the work has to be stopped and the structure has to be demolished, that then the rules of natural justice have in any case been infringed because no opportunity of a hearing has been afforded but more importantly, that the authority having arrived at a final decision, the opportunity to show cause even if afforded would be of no consequence because, the notice very clearly indicates that a final decision has been taken and even assuming a hearing is afforded, that it will be only for purposes of procedural compliance, with the result being already decided.

(3.) THE learned single Judge after hearing the parties examined the case law on the point and upheld all the contentions raised on behalf of the petitioners in other words, laid down the principle that before the petitioners can be required to conform to any orders passed by the Board, that it was first necessary to serve on them a notice to show cause, afford them a hearing and then take a decision. On behalf of the board, what was contended was that in this as also in several other analogous sections such as Sections 139 and 141, there is no prior notice that is contemplated and if the legislature has empowered the authority to take action without the service of a prior notice, that it is not competent for a Court to graft on something to the section or to read something into the section which has not been provided for by the legislature. While the Board defended its course of action it is necessary for us to amplify here that they did contend that the prior service of notice in cases relating to stoppage of work must be dispensed with for the obvious reason that otherwise it would virtually confer on the offending party an indirect license to delay through legal procedures such as the filing of replies, hearing etc. , and in the meanwhile to rush through with the illegal construction and complete it and to then present the authority with a fait accompli as is done in hundred out of hundred cases and that this is against public interest and this is virtually granting sanction to illegal constructions to continue and reach a point where the usual plea is put forward that a demolition of a completed structure would be too harsh, that some nominal or ridiculous sum of money be tendered as a so-called regularisation fee and whatever the rank, illegality that it be white-washed into a legality. We need to observe that this procedure has been the bane of every city in this state and unfortunately, everyone of the corporations and Municipalities with the active connivance and blessing of the State government has regularised every illegal construction under the guise that it is revenue earning and that has caused the type of planning problems that have now reached unmanageable proportions. Just one indication would suffice to illustrate the magnitude of the problem where a responsible survey carried out in the city of Bangalore as late as in the end of the year 2002, has indicated that in cent percent of the commercial constructions, the majority of the regulations have been breached particularly the FSI Regulations, zero provision has been made for access and parking of vehicles, that the basements have been converted into commercial areas and all of this has unfortunately been done after obtaining stay orders from the Courts with the active connivance of the other side viz. , the Corporation and the second stage of the litigation wherein a third party innocently comes forward and states that hard earned money was paid for a basement or other illegally constructed part of a building which unfortunately bears the rubber stamp of being part of the sanctioned plan and the argument being that the innocent third party should not be punished results in the so-called regularisation process. The limited reason why we have referred to these facts is because of the relevancy to the issue involved in the present case. As indicated earlier, the learned single Judge rejected the contentions put forward on behalf of the Board and allowed the writ petitions quashing the notices in question and affording the Respondents-Board the opportunity to serve the fresh notices on the respondents-owner if they so desired and to proceed according to law. The two appeals before us have been presented by the Board assailing the validity of the order passed by the learned single Judge.