TARAMANI DEVI Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ application under Articles 226 and 227 of the Constitution Srimati Taramani Devi, the petitioner, has challenged the validity of the notice dated the 19th of December, 1970 issued by the Cantonment Board, Dinapore, under Section 185 (2) of the Cantonments Act, 1924, hereinafter to be called "the Act" (Annexure 7) and the order dated the 22nd of July 1968, passed by the Officer Commanding-in Chief, Central Command (respondent No. 21 under Section 52 (1) (b) of the Act (Annexure 8).

(2.) THE petitioner resides in a house standing on survey plot Nos. 47/288 and 47/289 bearing holding Nos. 86 and 87 of Mahal I, Ward No. VI of the Dinapore Cantonment. In the month of November, 1967, the petitioner made an application before the Dinapore Cantonment Board (hereinafter to be called "the Board") under Section 179 of the Act for addition of two rooms with lavatory and bath room in the first floor of the building and submitted the plan. THE application of the petitioner was considered by the Board and by Resolution No. 2 dated the 30th of January, 1968, the sanction was accorded. According to the resolution the petitioner was required to start work within one year from the date of receipt of sanction and to complete the work within one year from the date of commencement of the work. As stated in paragraph 6 of the writ application, the petitioner on receipt of the sanction order immediately started construction in the first floor of the building and completed it in the month of April 1968. It appears that when the matter came to the notice of the Officer Commanding-in-Chief, Central Command (respondent No. 2), he in exercise of the powers vested in him under Section 52 (1) (b) of the Act suspended for three months the resolution of the Board according sanction to the petitioner. By a letter dated the 26th of April, 1968, a copy whereof has been made Annex. 'B' to the show cause filed on behalf of respondents 3 and 4, the Officer Commanding-in-chief, Central Command, intimated to the President of the Board the order of suspension of the resolution No. 2 of the Board for three months and asked him to show cause as to why the direction be not issued to the effect that the decision as contained in the resolution of the Board should not be carried into effect. On the 13th of May, 1968, the Executive Officer of Dinapore Cantonment intimated to the petitioner that the higher authorities had suspended the resolution of the Board under Section 52 of the Act as the sanction accorded by the Board was objectionable from land point of view and was contrary to the provisions of the letter of the Government of India. Ministry of Defence. THE petitioner was warned that any action taken on the resolution of the Board would be entirely at her risk and cost. A copy of that letter has been made Annexure '2' to the writ application. THE petitioner on receipt of this letter sent a reply on the 18th of May, 1968. In her reply the petitioner asserted that the sanction of the plan having not been cancelled by the Board, the construction of the structure as per the sanctioned plan was immediately taken up on receipt of the sanctioned plan and the construction was completed long time back. A copy of that letter has been made Annex. '3' to the writ application. When no reply was received from the Board by the Officer Commanding-in-Chief, Central Command, he by his order dated the 22nd of July. 1968 fAnnexure 8) directed under Section 52 (1) (b) of the Act that the resolution of the Board should not be carried into effect. A copy of that order has also been made Annexure 'E' to the show cause filed on behalf of respondents 3 and 4. Subsequently by a letter dated the 31st of October, 1968 (Annexure 'F' to the show cause filed on behalf of respondents 3 and 4), respondent No. 2 enquired from the President of the Board as to what action had been taken by him in the case of those houses in respect of which the Board's resolution sanctioning the plans had been set aside under the letter dated the 22nd of July, 1968. Earlier on the 14th of August. 1969, the Executive Officer of the Dinapore Cantonment had sent a notice to the petitioner to stop further construction of the building. A copy of that notice has been made Annexure '6' to the writ application. THE Board ultimately resolved by a majority of votes on 10-11-1970 that a notice under Section 185 (2) of the Act be served upon the petitioner for demolition of a portion of the first floor within a period of 30 davs as sanction for the same had been set aside by respondent No. 2 under Section 52 (11 (b) of the Act. THE elected members of the Board dissented from the above resolution. A copy of that resolution has been made Annexure 'G' to the show cause filed on behalf of respondents 3 and 4. In pursuance of that resolution the notice under Section 185 (2) of the Act was issued on the petitioner on the 19th of December, 1970 (Annexure 7). THE petitioner by that notice was asked to demolish the construction in the first floor of the building within thirty days of the receipt of the notice.

(3.) BEFORE dealing with the contentions which have been raised on behalf of the petitioner, I would indicate the stand which has been taken by the respondents in this writ application. In the show cause filed on behalf of respondents 3 and 4 as well as in the counter-affidavit filed on behalf of respondents 1 and 2 it has been asserted that survey plots Nos. 47/288 and 47/289 bearing holding Nos. 86 and 87 of Mahal I, Ward No. VI of the Dinapore Cantonment are class B (31 lands of which the Government of India is the landlord and which is managed by the Board and is held on the basis of old grant. On the lands of old grant character only the Government of India was competent to give approval. Accordingly, when the sanction of the plan by the Board was communicated to the petitioner, a letter dated the 2nd of March, 1968. was sent by the Cantonment Executive Officer to the petitioner to the effect that the sanction was not in conformity with the order of the higher authorities and the plan involved subdivision of site in the form of first storey A copy of that letter has been made Annexure 'A' to the show cause filed on behalf of respondents 3 and 4. The petitioner did not pay any heed to that letter and started construction. When the matter came to the notice of respondent No. 2. he suspended the resolution of the Board according sanction for three months as he found the sanction objec-tionable from land point of view and contrary to the provisions of Government of India. Ministry of Defence (Military Lands and Cantonments Directorate) letter dated the 9th of August. 1957. A copv of that letter has been made Annexure '1' to the counter-affidavit filed on behalf of respondents 1 and 2. The relevant portion of that letter reads as follows: "Government have been advised in another analogous case that the construction in place of single storey building of a new building consisting of more storeys and or enlargement of existing buildings to contain additional storeys or larger number of inhabitable tenements on sites held under Old Grant terms essentially entails variation in the terms of the grant and that such construction may be refused unless the grantee is prepared to execute on payment of full annual rental for the site and suitable premium." As stated in the show cause filed on behalf of respondents 3 and 4, the Board in according sanction of the building plan of the first storev of the house of the petitioner had acted contrary to the directions of the Command and the decision of the Board was rightly annulled by the Officer Commanding-in-Chief, Central Command. A CODV of the letter dated the 1st of May. 1967. containing the directions of the G. O. C.-in-Chief, Central Command, has been made Annexure '1' to the show cause filed on behalf of respondents 3 and 4. According to that letter whenever any building application is submitted requesting for construction of additional storeys on a distinct site held on old erant terms an objection should always be raised from land point of view and building plans should not be sanctioned. In case the holder of occupancy rights comes forward with a request for taking the site on lease the same should first be dealt with and after Government sanction is accorded to the lease of the site then only the building applications/plans should be entertained and considered. A copy of the letter of the Government of India dated the 23rd of March, 1968, in which instructions have been given has been made Annexure 'J' to the show cause filed on behalf of respondents 3 and 4. Thus, according to the stand taken by the respondents, as the sanction has been illegally given respon- dent No. 2 suspended the resolution of the Board and subsequentlv issued a direction that the resolution should not be carried into effect. As stated in the show cause . filed on behalf of respondents 3 and 4. the Board was bound to execute the order of the Command and accordingly the notice (Annexure 7) has been issued to the petitioner. It has been further stated in the show cause that the petitioner would be entitled to full compensation for the loss actually incurred in consequence of the demolition of any building which had been erected prior to the date on which the order of the Officer Commanding-in-Chief, Central Command, was communicated to her.