B KRISHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) .The petitioner has impugned the nomination of respondent No. 3, Mr. J. Pratap as a Civilian Member of the Cantonment Board of Secunderabad by respondent No. 1, Union of India. The challenge is based on the violation of statutory provisions of the Cantonment Act, 1924 ( hereinafter to be referred to as, `the said Act' ). Section 13 of the said Act provides for constitution of the Cantonment Boards and Section 14 deals with the power to vary the constitution of the Boards in special circumstances. The nomination/appointment of respondent No. 3 is in pursuance to the power exercised under Section 14(2)(c) of the said Act and over this, there is no dispute. The relevant Section 14 is as under: " 14. POWER TO VARY CONSTITUTION OF BOARDS IN SPECIAL CIRCUMSTANCES (1) Notwithstanding anything contained in Sec. 13, if the Central Government is satisfied- (a) that, by reason of military operations it is necessary, or (b) that, for the administration of the cantonment, it is desirable, to vary the constitution of the Board in any cantonment under this section, the Central Government may, by notification in the Official Gazette, make a declaration to that effect. ... ... ... ... (2) Upon the making of a declaration under sub- section (1), the Board in the cantonment shall consist of the following members namely: ... ... ... ... (c) one member, not being a person in the service of the Government, nominated by the Central Government in consultation with the Officer Commanding-in Chief, the Command. ... ... ... ..." 2)The short controversy, thus, for consideration is whether the nomination of respondent No. 3 by the Central Government has been done " in consultation with the Officer Commanding-in Chief, the Command". 3)The contention of the petitioner is that there has been no consultation with the said Officer, who is the persona designata under the statute. 4)It may be noticed that there is a background to the issue of nomination arising from the fact that the Cantonment Boards were functioning without the appointment of a Civilian Member and WP (C) No. 4369/2003 was filed aggrieved by such non-appointment/non- nomination, which was decided on 09.01.2004. The said writ petition was disposed of in view of the fact that the counsel for Union of India therein submitted that the process of nomination of a Civilian Member under Section 14(2)(c) of the said Act had already commenced and was expected to be completed within a period of six weeks from the date of the Order. The provisions of Section 14 had to be invoked in view of the fact that the term of the Board, which had been constituted under Section 13 of the said Act, had expired on 29.02.2003. This expiry date refers to even the extended period of time of the Board of one year as Section 15 of the Act envisages the life of the Board for five years with proviso for one year extension of elected members. The proviso is as under:- "15. TERM OF OFFICE OF MEMBERS- (1) Save as otherwise provided in this section the term of office of a member of a Board shall be five years and shall commence from the date of the notification of his election or nomination under sub-section (7) of Section 13, or from the date on which the vacancy has occurred in which he is elected or nominated, whichever date is later: Provided that the Central Government may, when satisfied that it is necessary in order to avoid administrative difficulty, extend the term of office of all the elected members of a Board by such period, not exceeding one year, as it thinks fit: Provided further that a member whose term of office has been so extended, shall cease to hold office on the date of the notification of the election of his successor under sub-section (7) of Section 13". 5)The counter affidavit filed by respondents No. 1 and 2 has specifically stated in para 6 that the GOC-in-C was consulted and only thereafter the Civilian Member was nominated by the Central Government. It is, however, stated that the recommendation of the Officer is not mandatory to be accepted by respondent No.1. 6)The affidavit of respondent No. 3 refers to the fact that a recommendation was made by the Colonel with approval of the Station Commander on 19.02.2003 and, thus, due process has been followed. It was further stated that respondent No. 3 had worked as a Vice- President of the Board from 1997-2003. It may be noticed that there are certain allegations made by the petitioner against respondent No. 3 in respect of the functioning of respondent No. 3, which are denied by respondent No.3. A copy of the letter dated 19.02.2003 has been placed on record showing the panel of names suggested in the order of preference for consideration of the GOC-in-C, which reads as under: " Tele: 2788 2006 Headquarters Andhra Sub Area Secunderabad-10 3873/1/Q31 19 Feb. 2003 GOC-in-C (Through Col Q(Wks/Lands) HQ Southern Comd. Pune. ELECTION OF THE CANTONMENT BOARDS / TERMS OF THE OFFICE OF ELECTED MEMEBRS 1. Ref. Principal Director Defence Estates Southern Comd Pune letter No. 530/GEN/VII/DE dt. 11 Feb 03 recd by this HQ on 14 Feb 03.

(2.) Civilian Member. The following panel of names is suggest in the order of preference for consideration of the GOC-in-C. For nomination as the civilian member to serve on the proposed varied board of Secunderabad Cantonment:- (a) Dr. Y. Madan Mohan Reddy. (b) Shri Pratap. (c) Smt. M. Bhaskara Lakshmi.

(3.) Their bio data alongwith willingness certificate are enclosed.