A.Malyadri v. Secunderabad Cantonment Board & Anr.

23-01-2012 Between: A.Malyadri ..Petitioner

Secunderabad Cantonment Board and another ..Respondents The Court made the following Order:

THE HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA W.P.No.27477 of 2010 Oral order: The petitioner prays that directions be issued to the respondents not to demolish the property bearing H.No.1-10-286, admeasuring 50 sq. yards situated at Camsoory Bazar, Pedda Thokatta, New Bowenpally, Secunderabad without due process of law. It is averred that petitioner is the absolute owner and possessor of the abovementioned property having purchased the same from Sri B.Gyan Prakash through an agreement of sale dated 23-12-2002 and since then he is residing in the said house. While so, on 01-11-2010 the employees of the respondent—Board came to the house and asked to remove the articles stating that they have to demolish the house property. It is also averred that the property in question was in existence prior to the petitioner’s purchase and he is continuing the same without making any alterations. It is further averred that before undertaking demolition the respondent—Board has to issue notice either under Section 247 or 248 of the Cantonment Act, 2006.

The petitioner apprehends that the employees of the respondent—Board may come at any time and may resort to remove his house property. Hence, the writ petition. The respondent—Board filed a counter affidavit stating that the construction made by Sri B.Gyan Prakash, the vendor of the petitioner, was found to be an unauthorised construction under the provisions of the Cantonment Act, 1924 (for short “the Act”) and notice under Section 185 of the Act was issued as early as on 17-03-2001, which was followed by final notice under Section 256 of the Act on 21-06-2001. It is also stated that B.Gyan Prakash filed civil suit—O.S.No.1011 of 2001 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad for permanent injunction against the Cantonment—Board, which was dismissed on 28-03-2006. B.Gyan Prakash carried the matter in appeal—AS (SR) No.11164 of 2006 wherein I.A.No.4143 of 2006 was filed for condonation of delay of 148 days in filing the appeal.

The said application was also dismissed. Against which Gyan Prakash filed C.R.P.No.5064 of 2007, which was also dismissed by the High Court on 22- 01-2010. Thus, the judgment and decree passed by the trial court in O.S.No.1011 of 2001 has become final. It is further stated that Board has initiated appropriate proceedings for demolishing the property in question. Heard the learned counsel for the petitioner and Sri Depak Bhatacharji, learned standing counsel for the respondent—Board. Learned counsel for the petitioner vehemently contends that before demolishing the property in question, no notice as such was issued to the petitioner. Hence, the respondents may be estopped to demolish the house property. Learned standing counsel for the respondent—Board submits that the proceedings under Sections 185 and 256 of the Act were initiated and the proceedings initiated under the Repeal Act (Cantonment Act, 1924) were saved by operation of Section 360 of the Cantonment Act, 2006.

Therefore, the allegation of the petitioner that fresh proceedings under the Cantonment Act, 2006 have to be initiated is not tenable. Learned standing counsel also submits that the Cantonment Board being a civil body is entrusted with the responsibility of monitoring the construction and reconstruction in the entire Cantonment and hence, preventing the Board from exercising its power under the provisions of the Cantonment Act, 2006 will be against public interest. Admittedly, the Board had already issued proceedings under Sections 185 and 256 of the Act for removal of unauthorized construction made by the vendor of the petitioner. By operation of Section 360 of the Cantonment Act, 2006 all the proceedings initiated under the Cantonment Act, 1924 were saved. Therefore, the petitioner cannot question the proceedings initiated by the Board. The writ petition fails and it is accordingly dismissed. No order as to costs. ___________________ ASHUTOSH MOHUNTA, J. 23-01-2012 Murthy