MOHANLAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is the owner of houses Nos. 14/73, 14/74 and 14/75, situated in Sadar Bazar Sagar. On 27th March 1973 a notice was issued by the Executive Officer, Cantonment Board, Sagar, purporting to be under Section 185 of the Cantonments Act, 1924 stating that the petitioner had made certain new constructions without permission and directing the petitioner to demolish these constructions within 15 days. The petitioner filed a reply to this notice on 2nd May 1973. The petitioner disputed the fact of making new construction. The petitioner's case in the reply was that he had only repaired his old houses. The Executive Officer then issued a notice on 3rd January 1974 purporting to be under Section 256 that the unauthorised construction will be demolished on 29th January 1974. In this notice no finding was recorded by the Executive Officer as to why the reply submitted by the petitioner that there was no new construction and that the petitioner had only repaired his old houses was wrong. It appears that nothing further was done in pursuance to this notice. The Executive Officer again, on 13th September, 1974 issued another notice under Section 185 stating that the petitioner had made unauthorised constructions and that the same be demolished. The petitioner replied to this notice on 30th October, 1974 reiterating that he had not made any new construction and that he had only repaired his old houses, A notice purporting to be under Section 256 then followed on 7th December 1974. In this notice also there was no finding as to why the petitioner's reply was wrong. Nothing further was done for some time. On 25th February, 1975 the Executive Officer issued a notice of composition of the unauthorised construction. This notice was issued without prejudice. In reply to the notice, the petitioner submitted his willingness to compound. The Executive Officer, however, did not pass any order on the question of compounding and on 28th August, 1975 a part of construction was demolished. The petitioner then came to this Court under Article 226 of the Constitution for restraining the respondent from proceeding with the demolition,

(2.) The Board under Section 185 can by notice direct the owner, lessee or occupier of any land in the Cantonment to alter or demolish a building erected or re-erected if the Board considers that the erection or re-erection of the building is an offence under Section 184. Although the section in terms does not provide for any enquiry, it stands to reason that before finally directing the demolition, the owner, lessee or occupier concerned must be heard in case he disputes that the erection or re-erection was an offence under Section 184 and the Board must pass a speaking order why the objections raised against alteration or demolition are not valid. The justice of the system of our law must supply the omission in Section 185 (1) in this matter. The way Section 185 can be worked in accordance with the principles of natural justice is that if the Board considers that the erection or re-erection of a building is an offence under Section 184, it may issue a notice within twelve months of the completion of such erection or re-erection to the person concerned proposing alteration or demolition as it thinks necessary. The person concerned will then reply to the notice why alteration or demolition cannot be ordered. In case the Board accepts the objection, the notice issued would be discharged. If the Board decides that the case for alteration or demolition is made out, it will pass a speaking order after such inquiry as it may think necessary directing alteration or demolition and a notice containing this direction would be served upon the person concerned who will have a right of appeal against this notice under Section 274 read with Schedule V of the Act, From the facts stated above it will be clear that there was no such final order or notice under Section 185. The petitioner objected to the preliminary notice issued to him under Section 185. The objections raised by the petitioner were not decided by any speaking order by the Executive Officer. All that the learned counsel for the respondents is able to point out is that the Board on 14th August, 1974 resolved to issue a notice under Section 256. The resolution was obviously passed without holding any enquiry and without deciding the objections raised by the petitioner. In Smt. O.N. Park (Wee) Morris v. Cantonment Executive Officer, Jabalpur, M. P. No. 715 of 1975, D/-26-10-1979 (M. P.), we stressed the need of a speaking order and observed that in the absence of any speaking order deciding the objections raised by the person concerned under Section 185, the Executive Officer was not entitled to take action under Section 256 to demolish the construction. The learned counsel for the respondents has drawn our attention to the reply submitted by the petitioner to the offer of composition made by the Executive Officer. It is argued that in this reply the petitioner admitted that the construction was unauthorised. The notice of composition issued by the Executive Officer was without prejudice. The reply given to this notice should also be understood to have been given without prejudice, The admission, if any, contained in the reply cannot be used against the petitioner,

(3.) The petition is allowed. The notices under Section 256 issued by the Executive Officer are quashed. The respondents are directed not to take any further action for demolition until a speaking order is passed under Section 185 after full consideration of the reply submitted by the petitioner and after holding an enquiry as it may be thought necessary under the circumstances. The petitioner will get costs of this petition from the Cantonment Board. Counsel's fee Rs. 100, if certified. Security amount be refunded to the petitioner.