Javid Ahad War v. Defence & Ors.

Through: Mr. T. M. Shamsi, DSGI with Ms. Bisma Ali, Adv. CORAM: HON’BLE MS JUSTICE SINDHU SHARMA, JUDGE

O R D E R 09.10.2024

Petitioner seeks quashing of Notice under Section 320 of the Cantonment Act, 2006 (41 2006) No. 4/16/4277/CB/BB/289/430 dated 24.08.2024.

The contention of the petitioner is that he is residing in a rented accommodation at Sonwar Bagh, Srinagar. The respondents 2 and 3 at the instance of some of his neighbours have been issuing notices to him for demolition of construction raised over the two storeyed residential house.

The petitioner submits that he does not own the said property nor is raising any construction on spot. The respondents have issued the impugned notice to harass the petitioner without following principles of natural justice in a mechanical manner. 1 WP(C) No. 2278/2024 CM No. 6117/2024

The petitioner, thus, seeks quashing of impugned notice with a further direction to respondents not to issue any demolition notice with regard to property owned by some other person.

Notice under Section 320 of Cantonment Act, 2006, was issued to petitioner for non-compliance of notice issued by the Badambagh Cantonment Board. Perusal of notice reflects that the petitioner had failed to comply notice under Section 248 of the Cantonment Act, for demolition of unauthorized construction. Therefore, notice dated

24.08.2024 under Section 320 of the Cantonment Act, has been issued to petitioner to demolish unauthorized construction within 10 days’, failing which the same would be completed at your own cost.

This petition has been filed nearly one and half month after the issuance of notice. Section 248 of the Act, provided for power to stop erection of re-erection to demolish which reads as under: “248. Power to stop erection or re-erection or to demolish.- (1) The Board may, at any time, by notice in writing, direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board considers that such erection or re-erection is an offence under section 247 and may, in any such case or in any other case in which the Board considers that the erection or re-erection of a building is an offence under section 247, within twelve months of the completion of such erection or re-erection in like manner, direct the alteration or demolition, as it thinks necessary, of the building, or any part thereof, so erected or re-erected: Provided that the Board may, instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable: Provided further that the Board shall not, without the previous concurrence of the General Officer Commanding-in-Chief, the Command, accept any sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board.

Thus, notice for demolish erection or re-erection can be issued to the owner, lessee or occupier where the Board considers it as an offence. The non-compliance of notice under Section 248 led to issuance of notice under Section 320 to the petitioner.

The petitioner admittedly is a tenant, i.e. occupier of the building for which the notice has been issued, as such, had to avail the remedy available to him for the show cause notice which he has failed.

Learned counsel for the petitioner was asked about the name of the owner but he submitted that he has no knowledge. There is no mention of the same in the petition. The petitioner having failed to avail the remedy against the notice under Section 248 and considering the delay qua the notice, coupled with the fact that nothing has been placed on record to show that petitioner is not acting against the provisions of the Act. The petitioner delay’s the compliance of order.