CANTONMENT BOARD Vs. MOHANLAL

JUDGEMENT

(1.) THIS appeal by special leave arises from the order of the Division Bench of the Madhya Pradesh High Court in Miscellaneous Petition No. 2090 of 1975 passed on 5.11.1979, filed under Article 226 of the Constitution. The admitted facts are that the appellant had issued a notice on 27.3.1993 under section 85 of the Cantonments Act, 1924 (for short 'the Act') to the respondent for demolition of the construction made in the property now in controversy. The 1st respondent had received the notice on 2.5.1973, but he carried out further construction. However, notice under section 256 was issued on 3.1.1974 and second notice ultimately was issued for demolition on 13.9.1974 under section 185. The 1st respondent had submitted his reply on 30.10.1974. The area committee on 7.12.1974, passed resolution after considering the representation made by the 1st respondent to give 15 days' time for compliance of the notice dated 27.3.1973 and 13.9.1974 and in case he does not comply with the same it further resolved to have the structure demolished through the agency of the Board Calling this action in question the respondent had filed the above writ petition in the High Court. The Division Bench has held that though section 185 read with Fifth Schedule does not contemplate any enquiry being conducted or reasons to be recorded, principle, of natural justice require that the Board is to consider the representation since it is an offence under section 184 and principles of natural justice require that necessary notice and opportunity of hearing be given and after consideration of the representation speaking order is required to be passed. Since the speaking order had not been passed the action of the respondent was in violation of the law.

(2.) THE only question in this case is whether the view taken by the High Court is good in law. It is seen that the respondent in his reply had admitted that they constructed, as pointed out by the Cantonment Board in its notice dated 13.9.1974, and the previous notice. But he stated that he had done it bona fide and as he would not demolish it but requested the authority to reconsider the matter and withdraw the notice. In other words, he admitted that he had carried on illegal construction without compliance with law. So the question is whether enquiry in that behalf is required to be conducted. We are of the considered view that the High Court was not right in its conclusion that an independent enquiry requires to be held after the notice was issued and the reply thereof was given by the respondent.

(3.) HOWEVER , Shri Lekhi, learned counsel appearing for the appellants stated that the action taken by the respondent can be condoned provided he complies with the law. In view of the stand taken by the appellants, it would be open to the respondent to make a representation to the Board which would forward tile same to General Officer Commanding -in -Chief at Sagar who would pass an appropriate order according to law.