High Court
Case Details
Court No. - 10 Case :- WRIT - C No. - 4357 of 2001 Petitioner :- Shri Ajay Laxmi Gupta @ Ajay Gupta And Another Respondent :- Iind. A.D.J. And Others Counsel for Petitioner :- Pramod Jain,Anoop Trivedi,Virkam Nath Counsel for Respondent :- C.S.C,Rakesh Tewari,S.Chaturvedi,S.N. Srivastava,Subodh Kumar,Vipin Sinha Hon'ble Rohit Ranjan Agarwal,J. 1. Heard Sri Romeshwari Prasad, learned counsel for the petitioners and Sri Subodh Kumar, learned counsel for respondent nos. 2 and 3. 2. This writ petition has been filed assailing the order dated 13.01.1995 passed by Estate Officer, Meerut Circle, Meerut Cantonment and order dated 02.02.2001 passed by respondent no. 1. 3. Facts in nutshell, are that dispute relates to a Bunglow No. 237 situated at Westend Road, Meerut Cant. Originally, the bunglow was occupied by one Dewan Badri Nath and Asha Nand Sehgal. They transferred the bunglow
Legal Reasoning
through sale-deed dated 17.07.1985 in favour of Sri Ajay Laxmi, Sri Alankar Laxmi, Smt. Veena Madan and Smt. Raj Kumari. Smt. Raj Kumari and Smt. Veena Madan filed a Partition Suit No. 1389 of 1990 against Ajay Laxmi and Alankar Laxmi. The suit was decreed on 23.07.1993 and Smt. Raj Kumari and Smt. Veena Madan became owner of half portion of bunglow and remaining half portion came into the share of Ajay Laxmi and Alankar Laxmi. Another suit being Suit No. 1229 of 1993 was filed by Ajay Laxmi and his wife Smt. Aneeta Gupta against Sri Alankar Laxmi seeking declaration to the effect that they are owner in possession to the property to the extent specified in the map. The suit was decreed vide judgment dated 06.12.1993. On the basis of the judgment, mutation application was moved before the Defence Estate Officer, Meerut Cant., which remained pending. 4. According to petitioner, a proposed map in respect of the building was submitted under Section 179 of the Cantonment Act, 1924 on 04.12.1993. The map remained unsanctioned and a reminder was submitted on 05.01.1994 and thereafter on 11.01.1994. As the map was not sanctioned, petitioners proceeded to make constructions on the assumption that the proposed plan deemed sanctioned in view of Section 181(6) of the Cantonment Act, 1924. The Executive Officer referred the application to the Defence Estate Officer which was returned to the Executive Officer on 03.02.1994 and thereafter the Cantonment Board passed resolution on 08.02.1994 and the map was returned on 21.02.1994. 5. The Defence Estate Officer furnished a report to the Estate Officer regarding unauthorised construction being carried out in the disputed property, subsequently, a notice under Section 5-B of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter called as "Act of 1971") was issued by the Estate Officer which was replied by the petitioners. The Estate Officer by the order dated 13.01.1995 held the construction to be unauthorised and it was to be removed within seven days. Against the said order, petitioners preferred an appeal under Section 9 of the Act of 1971 which was numbered as Misc. Appeal No. 29 of 1995. 6. In the meantime, Executive Officer of the Cantonment Board had issued five notices under Section 185 of the Cantonment Act, 1924. Petitioners filed five appeals under Section 274 of the Act before the appellate authority being Appeal No. 20, 21, 22, 23 and 24 of 1995. One more appeal was filed which was numbered as Appeal No. 65 of 1995. The appellate authority dismissed the five appeals except Appeal No. 65 of 1995 vide order dated 27.12.1995, 27.01.1996, 08.03.1996, 29.03.1996 and 24.04.1996. Appeal No. 65 of 1995 was decided by the appellate authority, Director, Defence Estate Central Command with the observation, "The plan will be deemed sanctioned if there is no clear violation of New Land Policy, there is clear sub-division of site, provisions of Land Ceiling Act is not attracted, the building plan submitted were as per the bye-laws of the Cantonment Board and there is no encroachment of old or vacanct land". The appeal was decided on 31.05.1999. 7. In the meantime, petitioners had also filed Original Suit No. 176 of 1996 before Ist Additional Civil Judge (Senior Division), Meerut and Civil Suit No. 688 of 1996. In the meantime, respondent no. 1 proceeded and decided Appeal No. 29 of 1995 which was filed against the order dated 13.01.1995, and vide judgment and order dated 02.02.2001 dismissed the same. Hence, the present petition. 8. Learned counsel for the petitioner submitted that the lower appellate court failed to consider that Section 181(6) of the Cantonment Act, 1924 which is pari materia to Section 238 of the Cantonment Act, 2006, in case of the non sanction of the map within time specified in sub-section (3) of Section 238 and 181(6), it would amount to deemed sanction and in the present case, as map was not processed in time, the constructions made by the petitioners were per the deemed sanctioning of the map. He further contended that no fresh constructions were made and only repair work was carried out and the appellate authority on 31.05.1999 had partly allowed the appeal and held the map to be deemed sanctioned. 9. Per contra, Sri Subodh Kumar, learned counsel appearing for respondent nos. 2 and 3 submitted that prior permission as required under Rule 15 of the Cantonment Law Administration Rules, 1937 was not taken from the Central Government by the petitioners before the land was transferred from occupier, Dewan Badri Nath and Asha Nand Sehgal to the petitioners. According to him, if the permission was not accorded, the status of petitioner is deemed to be of an unauthorised person. He then contended that petitioner had not approached the Court with clean hands and on the same ground, a Writ Petition No. 22148 of 1996 was filed by petitioner no. 2, wife of petitioner no. 1 challenging the order
Decision
passed by the appellate authority and the writ petition was dismissed by this Court vide judgment dated 16.07.1996. According to him, in the earlier round of litigation, the Court had taken note of the provisions of Section 181(6) of the Cantonment Act, 1924 and Court found that petitioners had made unauthorised construction in cantonment area, the writ petition was dismissed. Copies of the entire writ petition and the order has been appended as Annexure- 1 and 2 to counter affidavit. 10. I have heard respective counsels for the parties and perused the material on record. 11. The short question for consideration is whether the map submitted by the petitioners before the defence authorities was sanctioned or not, and also whether in view of deeming provisions of Section 181(6) of the old Act which is pari materia to Section 238 of the new Act, the map stood sanctioned after 30 days. Petitioner no. 2 before this Court had already approached this Court through Writ Petition No. 22148 of 1996 raising a similar plea that benefit of Section 181(6) to be accorded to the petitioners. The Court after consideration found that proviso to Section 181(6) of the Act of 1924 envisages that one month time is to be counted after the report of the Defence Estate Officer under Section 181(3) is received by the Board. As there was no mention as and when the report was received by the Board, the Court declined to accept the contention of the petitioner and dismissed the writ petition, finding that unauthorised constructions were made in the cantonment area. In the instant writ petition, there is no disclosure from the petitioners side about the dismissal of the earlier writ petition in the year 1996. 12. However, the lower appellate court considered all the issues raised by the petitioner in its appeal and recorded categorical finding that constructions have been carried out without sanction of map and proceedings under Section 5-B was maintainable. The grounds raised by the petitioners before the appellate court are as under:- "I. Because the disputed premises is not covered by the provisions of P.P.E. Act and notice Under Section 5-B of the P.P. Act, 1971 is illegal. II. Because the GLR and GLR Plan relied upon by the Lower Court are in- admissible in evidence without any corroborative value. III. Because only repairs have been carried out and the sanction was not required in the matter. IV. Because proper opportunity was not provided. V. Because the constructions had been made within the plint area. VI. Because the map was submitted before the Cantonment Board Under Section- 179 of Cantonment Act and it will be deemed to have been sanctioned. VII. Because the Defence Estate Officer has not mutated the name of the appellants, hence the proceedings Under Section- 58 of the Act are wrong and the case was denied exparte and the proceedings can be taken against the authorised occupant and not the unauthorised occupant and the Defence Estate Officer should decide the question of title first. VIII. Because the judgment has been passed without considering the material available on record and no oral evidence was recorded by the lower court from the side of the complainant, and therefore, the order passed by the Lower Court is illegal." 13. The lower appellate court recorded a categorical finding that according to GGO No. 179 of 1936 all lands situated in Meerut Cantonment is public land within the meaning of Public Premises Act. The Act creates absolute bar in regard to construction of the land covered by the said GGO No. 179, without obtaining permission and approval of map as per the provisions of Cantonment Act and land policy. The lower appellate court also considered and discussed the impact of the order dated 31.05.1999 passed by the Director, Defence Estate Central Command, Lucknow. The lower appellate court while dismissing appeal of the petitioners had recorded categorical finding as to the opportunity provided to the petitioners as well as to the maintainability of proceedings under Section 5-B of the Act of 1971. 14. Considering the facts and circumstances of the case and after hearing the counsels for the parties, I find that no case for interference is made out in the order passed in the appellate proceedings, and also the petitioners who had earlier approached this Court challenging the appellate order passed in the year 1996 having been confirmed by the writ Court and their writ petition having been dismissed, no case is made out. 15. The writ petition fails and is hereby dismissed. Order Date :- 25.1.2023 V.S.Singh Digitally signed by :- VIDYA SAGAR SINGH High Court of Judicature at Allahabad