HON’BLE SRI JUSTICE V.ESWARAIAH W.P.Nos.319 and 327 of 2002 Dt.13.8.2010 W.P.NO.319 OF 2002 Between: Rashmi Prabha ..Petitioner And Secunderabad Cantonment Board and another ..Respondents W.P.NO.327 OF 2002 Between: Rajkumar Gaggar and another ..Petitioners And Secunderabad Cantonment Boar and another ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH W.P.Nos.319 and 327 of 2002 ORDER: In these two writ petitions, similar questions are raised by the petitioners and therefore they are being disposed of by a common order. Petitioner in W.P.No.319 of 2002 is the owner and possessor of plot to an extent of 800 sq.yards in S.No.84 and 85 situate in Chinna Thokkata Village, Secunderabad Cantonment. The petitioner applied for permission for construction of multi-storied building consisting of stilt, ground first and second floors on the said land and obtained sanction from the Secunderabad Cantonment Board in CBR No.2 (8-3) dated 29.7.1998. The said sanction is valid for one year and the petitioner commenced construction pursuant to the said sanction. While so, the 1st respondent Cantonment Board issued a notice under Section 185(1) of the Cantonments Act, 1924 (for short, the Act) stating that the petitioner has erected the said building contrary to the construction undertaken by the petitioner and accordingly the unauthorized construction mentioned therein are sought to be removed within 30 days from the date of receipt of the said notice. It is stated that the said notice was issued under the authority of the Cantonment Board vide CBR No.2 (9) dated 13.2.1999. As against the said notice dated 2.6.1999, the petitioner filed an appeal in Appeal No.12 of 1999 before the 2nd respondent appellate authority under Section 274 of the Act. The appellate authority after hearing both the parties held that the petitioner has not only constructed the building without leaving side margins as required under byelaws, but also constructed the third floor and FSI consumed much more than the permissible limit of 0.50. The petitioner also pleaded before the appellate authority for regularization, but the same was opposed by the 1st respondent – Cantonment Board on the ground that the constructions are made in violation of FSI and building byelaws and it may not be possible for the Board to consider regularization of unauthorized construction even if the petitioner makes an application to the above affect. The contentions of the petitioner that unless the petitioner is liable to be prosecuted for violation under Section 184 of the Act, the notice for demolition cannot be issued under Section 185 of the Act and that the said notice is illegal and invalid are all rejected by the appellate authority by order dated 7.11.2001. Similarly, petitioners in W.P.No.327 of 2002 are the owners of plot to an extent of 800 sq.yards in S.No.84 and 85 situate in Chinna Thokkata Village, Secunderabad Cantonment and obtained sanction from the 1st respondent by the very same proceedings in CBR No.2(8-3) dated 29.7.1998. Similar notice dated 2.6.1999 was issued for demolition of unauthorized constructions. Against which, petitioners filed an appeal in Appeal No.13 of 1999 and the appellate authority dismissed the appeal by order dated 7.11.2001 rejecting all the contentions. Learned counsel appearing for the petitioners submits that admittedly the petitioners obtained sanction for erection of the building and therefore it cannot be said that the construction of the building is without any sanction by the Cantonment Board. If the Cantonment Board refused to sanction erection of any building and even if the sanction granted is suspended by the Officer Commanding-in-Chief under Section 52(1)(b) of the Act, the persons whoever, continues or completes the erection or re-erection of a building, shall be liable to be punished with fine which may extend to Rs.5,000/-. On the other hand, the learned counsel appearing for the Cantonment Board submits that in the instant case the Board has sanctioned in exercise of powers under Section 181 of the Act subject to certain terms and conditions and the petitioners have violated the conditions stipulated in the sanction and therefore for non-compliance of the directions made under sub-section (1) of Section 181 of the Act, such persons are also liable for punishment under Section 184 of the Act. Section 184 of the Act relates to the penal provision and Section 185 of the Act relates to the power of the Board for demolition part of the building, which was erected contrary to the sanctioned plan. Admittedly, the sanction was made which contains certain directions under Section 181 of the Act and if there are any deviations by not maintaining the side open space and if the third floor is constructed without any permission, it is open for the for the Cantonment Board to issue notice for removal or demolition of the third floor. In so far as the contention of the learned counsel for the petitioners that the so-called deviations of the cellar, ground, first and second floors with regard to side open space are concerned, though Section 185 of the Act does not contemplate prior notice, I am of the opinion that issuing notice which is in the form of final order is impermissible as the principles of natural justice are inherent under Section 185 of the Act. Learned counsel appearing for the respondents submits that a preliminary notice was issued on 12.1.1999 pointing out the unauthorized constructions and deviations. Thereafter, the matter was placed before the Board after issuing the preliminary show cause notice on 12.1.1999 and the Board vide resolution No.CBR 2(9) dated 13.2.1999 unanimously resolved to initiate proceedings under Sections 185 and 256 of the Act to proceed against the unauthorized constructions. Accordingly, notice under Section 185 of the Act was issued on 2.6.1999. No reply has been filed and therefore it cannot be said that the impugned notice issued by the Board is arbitrary and without giving any prior notice. In view of the aforesaid facts and circumstances of the case, I do not see any violation of the principles of natural justice in issuing notice under Section 185 of the Act, which was rightly upheld by the appellate authority. However, I am of the opinion that it is for the Cantonment Board whether to accept or reject the request of the petitioners for composition of the violations. The Cantonment Board is different from the Executive Officer, who opposed the request of the petitioners before the appellate authority. Therefore, I am of the opinion that it is for the Cantonment Board to take appropriate action. Accordingly, the petitioners are permitted to make a representation before the Cantonment Board for composition of the unauthorized constructions within two weeks from the date of receipt of a copy of this order. On receiving such representation, the 1st respondent Cantonment Board shall consider and dispose of the same in accordance with law. Till the representation is disposed of, status quo obtaining as on today may be continued. If no such representation is received within the said period, it is open for the Cantonment Board to take action pursuant to the impugned orders in the writ petitions. The impugned orders are accordingly confirmed and the writ petitions are disposed of with the aforesaid directions. No order as to costs. ________________ V.ESWARAIAH, J. 13.8.2010 kpr