AFZAL Vs. CANTONMENT BOARD, MEERUT

JUDGEMENT

(1.) In this group of petitions, the petitioners have prayed for the quashing of the notices issued under Section 248(1) of the Cantonments Act, 2006 (hereinafter referred to as 'the Act') for stopping the constructions raised unauthorisedly by the petitioners as well as for the quashing of the notices issued for demolition of the constructions so raised. The petitioners have also prayed for the quashing of the appellate order passed under Section 340 of the Act. Similar orders and notices have been issued under the Cantonments Act, 1924 (hereinafter referred to as the "old Act").

(2.) The basic grievance of the petitioners in these writ petitions is, that the notice issued by the Chief Executive Officer was without jurisdiction, inasmuch as, the said officer had no jurisdiction to issue a notice under Section 248(1) of the Act either for stopping the constructions or for demolition of the constructions so allegedly raised and that the power could only be exercised by the Cantonment Board and that the said power has not been delegated under Section 237 of the Act. Further grievance is, that the reply to the show cause notice was not considered and that no specific order was passed rejecting the petitioner's reply. On the other hand, the respondents have proceeded to mechanically pass an order for demolition. The challenge is also on the ground, that the notice issued under Section 248 (1) of the Act, either for stopping the construction or for demolition does not indicate that the erection or re-erection is an offence under Section 247 of the Act, and consequently, in the absence of any finding that such erection or re-erection is an offence under Section 247 of the Act, the notice issued under Section 248(1) of the Act was wholly illegal and liable to be quashed. It was further contended that the notice issued under Section 248 of the Act did not indicate the date of construction, inasmuch as, Section 248 of the Act provides that a notice has to be issued within 12 months from the date of the alleged construction. It was therefore urged that since the date of construction was not mentioned, the notice was barred by limitation.

(3.) Heard Sri K.K.Arora, Sri Sumit Daga, Sri P.K.Jain, the learned Senior Counsel and Sri Akhtar Ali for the petitioners and Sri S.K.Rai, Sri Mohd. Isa Khan and Sri Prashant Mathur and Sri S.B.Singh for the Cantonment Board.