M KHAMBATI Vs. SECBAD CANTT BOARD

JUDGEMENT

(1.) The petitioner is the owner of the property in an extent of 1392square yards with a main building and out-house bearing H.No. 211, situated at Mudfort, Secunderabad contonment area. The property originally belonged to one Sorabjee Chenoy, who purchased it from his predo- cessor-in-title Nawab Laskar Jung Bahadur under a registered sale deed dated July 4,1889 and the petitioner purchased it under registered sale deed dated July 9, 1971. It is her case that she demolished the existing old structure. Then she made an application to the first respondent on September 19, 1980, as required under Section 179 of the Contonments Act (Act 11 of 1924), for short, "the Act" to grant permission to construct, which was revived on the same day but took no action thereon. As a result, the petitioner issued notice on November 11,1980 informing it of its neglect and omission to grant sanction on her application dated September 19, 1980 and sent it by registered post with acknowledgment due, which was received by the respondent on November 13, 1980. Till the expiry of fifteen days or thereafter, no action was taken. As a result, the petitioner had written another letter dated March 2, 1981, informing that the petitioner would proceed" to construct the building as per the plan submitted. The first res- pendent subsquently OB March 5, 1981 rejected the plans submitted by the petitioner purported to be in terms of resolution No. 24 dated February 6, 1981. A copy rhereof was not communicated to the petitioner. Therefore, as per law, the petitioner is entitled to construct the building. It is also further pleaded that the petitioner has obtained no objection certificate from the Aviation Authorities and the construction is as per law. There-after the 2nd respondent-Military Estate Officer filed O.S.No. 1257 of 81 on the file of the III Additional Judge, City Civil Court, Hyderabad for declaration of title and perpetual injunction against the petitioner and sought for ad-interim injunction in I.A.No. 1375/81, which was dismissed by the trial Court on June 27, 1981 and confirmed on appeal by the Chief Judge, City Civil Court, Hyderabad by judgment in C.M.A. 215 of 1981 dated September 18, 1981. Having allowed that to become final, now action was taken in the impugned resolution dated October 1, 1981, which was communicated to the petitioner through the impugned notice under Section 185 (1) of the Act, on October 15, 1981, calling upon the petitioner to demolish the building. Against the same petitioner has exercised the remedy of statutory appeal under Section 274 of the Act to the 3rd respondent, which was dismissed on April 26, 1982, resulting in the filing of the writ petition.

(2.) The petitioner is seeking the issue of a writ of mandamus declaring the action of the respondent to be illegal or alternatively to declare Section 181 (3) and the proviso to Section 181(6) of the Act as discriminatory and unconstitutional and to strike down the same and issue direction to the respondents to withdraw the notice or to quash the same. This application was resisted by the respondents contending that on receipt of the application filed by the petitioner, it was referred to the Military Estate Officer on October, 1, 1980 and the report was sent by the latter on October 27, 1980. The matter was considered by the Board and in its resolution dated February 6, 1981 rejecting the application. It was communicated to the petitioner on March 5, 1981. Therefore the construction of the building by the petitioner is in contravention of the provisions of the Act. It is also contended that as notice under Section 185 (3) was issued to the petitioner, the action is perfectly legal.

(3.) Sri M.R.K. Choudary, learned counsel for the petitioner contended that once the notice as required under Section 179 has been issued, the only power available to the respondents is to reject it if it is not in conformity with sub-section (1) of Section 181 of the Act. Otherwise it should be referred to the Military Estate Officer, if the land is in the Management of the latter, for a report and the report has to be submitted within thirty days time, as contemplated thereunder. If no action is taken within thirty days, the petitioner has got a right to issue notice under Section 181 (6) of the Act giving fifteen days' time informing the neglect or omission to grant or refuse to grant the permit. If no communication is received before the expiry of fifteen days, then the petitioner is free to proceed with the construction. Accordingly the construction is valid as per law and the demolition thereof is without authority of law. It is vehemently contended that if the thirty days period is to be computed in terms of proviso to sub-Section (6) of Section 181 of the Act from the date of receipt of the report from the Military Estates Officer it would be an arbitrary exercise of power. The Legislature thought it expedient that thirty days period will be reasonable period. Therefore thirty days period has to be computed from the date of the application duly made by the applicant and accordingly if the thirty days period computed in terms of proviso to sub-section (6) of Sec. 181 of the Act is contrued, it would be an arbitrary and discriminatory exercise of power offending Article 14 of the Constitution. These contentions have been repelled by Sri K. Subramanya Reddy, learned counsel appearing for the'respondents.