P.G. DOWIE AND Vs. UNION OF INDIA (UOI) REPRESENTED BY ITS SECRETARY MINISTRY OF DEFENCE, NEW DELHI AND ORS.

JUDGEMENT

(1.) THE first petitioner is Lessee of the property and the second petitioner is the wife of the first petitioner. The property in dispute belonged to the Central Government and is controlled by the Cantonment Executive Officer namely the 5th respondent herein and the 4th respondent. Originally on 1.4.21 the property to an extent of 0.51 acres bearing No.388/246/BA and 388/247 was leased for a period of 30 years; that the lease was subject to renewal for a period of the option of the lessee; that the said period of renewal was granted in three stages or phases at an interval of 30 years; that the first renewal of lease of the lands and building was granted to the petitioners with effect from 1.4.59 upto 31.3.89; that the petitioners have applied for second renewal for a further period of 30 years with effect from 1.4.89; that the Board passed a resolution recommending the renewal of the lease and forwarded the same to the General Officer, Commanding -in -chief, Pune, who had approved the renewal subject to some modification of treating the lands as both residential and commercial and for enhancement of rent and directed the third respondent execute the renewal of the lease deed and in spite of the same, the third respondent had not done so. Meanwhile, the petitioner also submits that minor repairs have been effected by him to mai building and improve its condition. Since a notice under Section 185(i) of the Cantonment Act was issued to the petitioners, the petitioners accordingly had submitted a letter dated 24.6.92 to the Board in response to the notice served under Section. 185(i) of the Ca /274 Pallavaram classified as B3 land; that the Cantonment Committee in its meeting held in October 1992 had passed a resolute for regularisation of the unauthorised construction; that the said recommendation, when placed before the General Officer, Commander -in - chief, Southern Command, the same had been rejected and it was also not communicated to them; that the Cantonment Board is empowered to accept by way of Compensation and the petitioners are prepared to pay the compensation to the Board for unauthorised construction namely 10% of the value put up in accordance with the Cantonment Act. respondent passed an order under Section (1) of Section 5(B) of Public Premises (Eviction of unauthorised Occupants) Act 1924 (hereinafter referred to as 'the Act'); that against the said order an appeal was filed before the District Judge, Chengelput in C.M.A.No.94 of 1992; that the learned District Judge had dismissed the Civil Miscellaneous appeal. Against the said appeal, the present writ petition has been filed by the petitioners, praying for a Writ of Certiorarified Mandamus to quash the impugned order dated 30.8.94 in C.M.A.No.94 of 1992 on the file of the second respondent confirming the in reference No.N/329 -11/95 on the file of the third respondent and some other reliefs which are not relevant for the present .

(2.) IN the counter filed by the third respondent on behalf of the other respondents, it is stated that the petitioners were given the lands on lease under Schedule VI of CLA Rules 1925 for a period of 30 years for residential purpose, renewable for an aggregate term of 90 years at 30 years interval; that as per the lease terms, the lessee must use the land only for dwelling house, but the petitioner has let out the same to the third party to run a Hotel including boarding and lodging, which amounts to violation of lease conditions and consequently, the lease was not renewed; that further the petitioners become unauthorised occupants; that they are liable to be evicted under the Act and that accordingly, they have issued a notice to the petitioners under Section 5B of the Act, after giving reasonable opportunity. In the counter, it is also stated that on 18.2.92, the petitioners had sent a letter to the third respondent stating that the unauthorised construction has been removed, but even in that letter, it has not been stated that they have not been given reasonable opportunity stated in their affidavit; that the petitioners in their letter dated 24.6.92 have admitted that they have effected unauthori in response to the notice issued by the 5th respondent under Section 18 5 of the cantonment Act. This clearly proves that the terms of the lease have been violated. The learned Senior counsel Mr. G. Subramaniam referred to Sub Section (1) of Section 5(B) of the Act which prescribes the procedure for demolition of unauthorised construction. He also re proviso to this section which prescribes that no order under this sub - section shall be made unless the person concerned has been given, by means of a notice of not less than seven days served in the prescribed manner. The learned counsel also took me through Rule 4, which prescribes the manner in which service of notices and orders should be made and that according to this a notice under Section 5(A)........ Section 5B......, shall be served by delivering or tendering a copy of the notice or order, as the case may be, to the person for whom it is intended or to any adult member of his family, or by sending it by registered post acknowledgment due in a letter addressed to that person at his usual or last known place of residence or business. The counsel also pointed out the provisions of Sub Rule (2) to Rule 4, which prescribes that where a copy of the notice of the order as the case may be under Sub Rule (1) is delivered or tendered, the signature of the person to whom the copy is so delivered or tendered should be obtained in token of acknowledgment of the service.

(3.) PER contra, the learned counsel appearing on behalf of the respondents argued that the notice as contemplated under Rule 4(1) has been effected. Though notice dated 20.7.92 does not specifically mention that the notice was sent under Rule 5B, yet the cont letter would indicate clearly that it is a notice sent under Section 5B. He added that the Supreme Court in various judgments have referred that only the substance of the notice has to be considered. A mere quoting of the wrong provision or quoting provisions which are not applicable in excess, does not ipso facto makes the notice in valid. Therefore, the counsel argued that a notice dated 20.7.92 is a valid notice given under Rule 5B.