Shri Neeraj Chhimwal v. The Cantonment Authority of Ranikhet Cantonment & Ors.

#1. Heard Ms. Janki Surya, Advocate for the petitioner and Mr. S.S. Chauhan, Advocate for respondent nos. 1 and 2.

#2. There is a property at Ranikhet known as Fredirik Villa at Ranikhet Cantonment which is under the purview and jurisdiction of cantonment authorities. The cantonment had given a lease in favour of one Mrs. M.G.F. Mathews for a period of 90 years, way back in the year 1931. There was a clause in the said deed wherein the original lease holder could transfer or assign the property to other person but subject to two conditions (cid:150) (i) to take prior written consent of the cantonment authorities and (ii) after the assignment to inform cantonment authority that such an assignment has been done.

#3. The original lessee of the said property was one Mrs. M.G.F. Mathews who transferred the said property as per the terms and conditions of the lease deed to one Lala Radha Krishna Kapoor and his brother Lala Gauri Shankar Kapoor in the year 1933. Lala Radha Krishna Kapoor had three sons, namely, Amarnath, Dewan Daulat Ram and Bal Kishan Kapoor and by virtue of a family settlement dated 30.9.1957 2 the said property came in the share of Amarnath, it is alleged. Again a family settlement took place in the family of Amarnath and the said property came in the share of Shashi Bahl. The property has since then devolved on one Sashi Bahl by virtue of family settlement, it has been stated. Sashi Bahl in turn assigned the property to present petitioner on

6.1.2003. Admittedly, no prior permission was taken by Smt. Sashi Bahl (or so it appears), from the cantonment authority regarding the transfer of the said property. Subsequently when an application for mutation was made by the present assignee/the petitioner, objections have been raised by the cantonment authority asking the petitioner vide order dated

26.12.2008 that since they have violated the condition of sale deed they have lost all rights on the said property and they should handover the peaceful possession of the property to the Defence Estates Officer. It is this order which has been challenged by the petitioner before this Court.

#4. The petitioner has relied upon letter dated 2.4.2003 which is from the Defence Estates Officer, Bareilly Cantt. to the petitioner asking certain information from the petitioner and second letter dated 14.7.2003 and other letters which have been addressed to the petitioner asking him to complete certain formalities. In other words, the contention of the petitioner is that the Defence Estates Officer, Bareilly Cantt. was already in communication to the petitioner seeking clarification from the petitioner and threfore it would be deemed that they have already granted an approval as contemplated under the lease deed i.e. (i) to take prior written consent of the cantonment authorities and (ii) after the assignment to inform cantonment authority that such an assignment has been done. 3

#5. The counsel for the respondents Sri S.S. Chauhan, on the other hand, contends that the conditions stipulated in condition no. 7 of the lease deed are two folds and are mandatory and may be complied with. Condition No. 7 of the lease deed on which reliance has been placed by the learned counsel for the respondent reads as under :- (cid:147)7. (Not to assign transfer or underlet the premises hereby demised or any part thereof without the consent in writing of the Cantonment Authority and) upon every assignment transfer or sublease of the premises hereby demised or any part thereof or within one calendar month thereafter to deliver a notice of such assignment transfer or sublease to the military Estates Officer setting forth the names and descriptions of the parties to every such assignment transfer or sub lease and particulars and effect thereof.(cid:148)

#6. Although there is strength in the contention of the respondents, this Court cannot loose sight of the fact the very cantonment authorities, including the very authority i.e. the Defence Estates Officer, Bareilly Cantt, was seeking clarification from the petitioner, which shows that the defence estates authority had knowledge that such an assignment has been done and by those letters they were seeking only certain information and clarification from the petitioner. Therefore, although the counsel for the petitioner fairly submits that there is no express approval of the Defence Estates Officer or the cantonment authorities but the letters on which reliance has been placed may be taken as implied approval, by the authority. 4

#7. Be that as it may, the fact is that the present order which is challenged before this Court is only a show cause notice. The respondents have not been able to show from the Cantonment Act that the petitioner has an alternative remedy for filing an appeal before any superior authority which is contemplated under Section 340 read with Schedule (V) of the Cantonment Act. Therefore, presently the petitioner has a remedy to explain and give reasons before the Defence Estates Officer, Bareilly Cantt. of the notice he have received. The petitioner as well as the original lessee are at liberty to move a representation before the Defence Estates Officer.

#8. Sri S.S. Chauhan learned counsel for the respondents fairly submits that he has no objection if this Court directs the authority to decide the representation of the petitioner as well as that of the original lessee, if it so filed.

#9. In view of the above, the writ petition is disposed of with the direction that if such a representation is made by the petitioner as well as the original lessee within a period of 8 weeks from today, the respondent authority shall dispose of the representation of the petitioner and that of the original lessee by passing a speaking order thereon as expeditiously as possible, but definitely within two months thereafter. It is, however, made clear that till such representation is disposed of no coercive method shall be adopted by the respondent.

#9. Interim order dated 18.5.2010 passed by this Court stands vacated.

#10. No order as to costs. Avneet (Sudhanshu Dhulia, J.)

29.8.2012