HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP. no. 139/2002 Date of Decision: 26.08.2010 _________________________________________________ Harpal Singh and Ors Vs. Cantonment Board & Ors __________________________________________________ Coram: HON’BLE MR. JUSTICE SUNIL HALI, JUDGE. Appearing Counsel: For the Petitioner(s): Mr. D. S. Thakur, Advocate. For the Respondent(s) Mr. N. P. Kotwal, Advocate. Mr. R. Koul, Advocate. i) Whether to be reported in Press, Journal/Media : Yes ii/ Whether to be reported in Digest/Journal : Yes Petitioners have filed this writ petition as dealers of Indian Oil Corporation Limited. Prior to their appointment as dealer was preceded by purchase of land by the petitioners and consequently its leasing out to respondent no.3 by them. The construction of Retail Out Let was to be done by respondent no. 3. In order to install the Retail Out Let, respondent no.3 is stated to have applied for grant of No Objections Certificate to the Deputy Commissioner Jammu. After obtaining necessary clearance from the Police Department, Fire Services Department and the Revenue Department, finally issued the No Objection Certificate. The Out Let was shifted from Nagrota to Narwal Pain, R.S.Pura Road, Jammu , to be run under the name and style as M/S Durga Filling Station. After obtaining the NOC, the construction of the Petrol Pump was started by respondent no.3. It is also averred that No Objection Certificates were also obtained by respondent no.3 from various authorities under the Petroleum Act and Explosive Act. The paramount consideration for granting such no objection was done to ensure safety. It is also important to mention that said plot of land is stated to be within the Cantonment area and all activities regarding construction are to be done by adhering to the provisions of the Cantonment Act. After having obtained the requisite permission from the concerned authorities, petitioners seems to have forgotten that for purposes of raising construction within the Cantonment area, the permission of the Cantonment Board was also required to be had before raising such construction. As a result of which notice under Section 185 of the Cantonment Act, 1924 has been issued to the petitioners to demolish the said construction. It is this order of demolition which is the subject matter of challenge in the present writ petition. The contention of the petitioners is that, the order of demolition has been issued in terms of SRO 93 dated 22.05.2001 issued by the Ministry of Defence under the 'Works of Defence Act 1903”, which prohibits raising of any construction on any land within the limits of 900 meters from the crest of the outer parapet of Indian Air Force Aerodromes and installations. Alternatively the petitioners state that show cause notice issued is in fact the order of demolition for which no 2 opportunity has been given to the petitioner to defend the same. Lastly the petitioners have contended that while taking recourse to Section 185 of the Cantonment Act, the Board, while directing alteration or demolition of the structure raised, can also permit compounding such violation by charging appropriate compensation from the petitioners by invoking the proviso to Section 185 of the Act. On the other hand the stand of the respondents is that the petitioner has no locus to question the order as it is actually the Indian Oil Corporation Limited which has raised the construction. It is further revealed that before starting any construction in the area falling under the Cantonment Board, the petitioners were required to issue notice indicating their intention of raising the construction. The Board, thereafter, was to decide as to whether the construction could be permitted or not under Section 181 of the Cantonment Act. The petitioners have, without taking recourse to the provisions of the Act, started the construction without permission from the Board as a result of which the construction raised within the civil area is without authority of law. It is further pleaded that there is a specific provision under the Act that any person, who without giving notice under Section 179 and 180 of the Cantonment Act, or before the building has been sanctioned or is deemed to have been sanctioned or without complying with any direction made under sub-section (1) of Section 181, shall be punishable 3 with finer which may extend to Rs. 5000/-. In addition to that the construction so raised, without adhering to the provisions of the Cantonment Act, is also liable to be demolished. It is further contended that the sanction granted in favour of the petitioners has been subsequently withdrawn by the Deputy Commissioner on 16.01.2002 and that construction has been raised in contravention to SRO 93 dated 22.05.2001 issued by the Ministry of Defence under the 'Works of Defence Act 1903”, which prohibits raising of any construction on any land within the limits of 900 meters from the crest of the outer parapet of Indian Air Force Aerodromes and installations. I have heard the learned counsel for the parties. Regarding the plea that construction within 900 meters from the crest of the outer parapet of Indian Air Force Aerodromes and installations, is concerned, a proper mechanism and procedure is provided under the Act. As a matter of fact, this is not an issue directly involved in the present writ petition. For purposes of initiating action under the said Act, the procedure as envisaged, has not been initiated as yet and, as such, it should not detain this Court any more. Regarding the illegal construction raised, it is manifestly clear that petitioners have not obtained any permission as required under Section 179 and 180 of the Act, which provides for issuance of notice indicating the petitioners' intention to raise construction and power of the Board to grant sanction 4 there of. From the pleadings of the parties it no where emerges that petitioners have taken any steps under the aforesaid Act. The consequence of that would lead to imposition of fine up to Rs. 5000/- and also demolition of the structure raised. The impugned notice is strictly in consonance with law as the notice has been issued to the petitioners for raising the construction without complying with the provisions of Section 179 and 181 of the Cantonment Act, 1924, thus rendering them liable to action under Section 185 of the Act. In addition to this, the construction so raised is also required to be demolished, for which 30 days time has been granted to do the same. All that notice contemplates is to inform the petitioners as to whether they have informed the Board under Section 179 of the Act regarding their intention to raise the construction and consequent sanction granted to them by the Board. 30 days time granted in the notice clearly gives them a chance to inform the Board that they have complied with the provisions of Section 179 and 181 of the Act. Once the petitioners have not complied with the above mentioned provisions, there is no occasion to claim that they were required to be heard on the issue. The scope of inquiry envisaged under Section 185 of the Act is only to give opportunity to the petitioner to inform the Board of their having complied with the provisions of Section 179 and 180 of the Act. In case they have not done so, the 5 natural consequence is that their construction has to be demolished. After having said so, I am of the opinion that the petitioners have not complied with the requirement of law as envisaged hereinabove and have no cause to question the impugned notice. However, petitioners have laid stress on the issue that even if it is found that the petitioners have committed the violation, same could have been compounded by payment of compensation to the Board, which is what the proviso to Section 185 provides. Proviso to Section 185 of the Cantonment Act, 1924, for facility of reference is reproduced below:- “ 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.” After scanning the import of this proviso, it clearly emerges that the Board has an option to compound the violation and accept the compensation from the petitioners. I would, therefore, direct the respondents to consider the case of the petitioners for compounding the violation provided the violation is capable of being compounded in terms of norms and rules which may have been issued in this behalf by the respondent-Board. To say it candidly, if the violation is major and not permissible under rules, same should not be compounded. If the violation is found minor, respondent-Board 6 may accord consideration for compounding the same and accept the compensation from the petitioners. Let this exercise be undertaken within a period of six weeks from the date a copy of this order is served on the respondents. Respondents shall communicate the petitioners the decision within the said period. In case the respondents comes to a conclusion that violation cannot be compounded, than before issuing the order of demolition they will give petitioners one months time to re- locate their Out let. With these observations the writ petition is disposed of. (SUNIL HALI) Judge JAMMU: 26.08. 2010 Anil Raina, Secy. 7