1 WP No.9547/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9547 of 2010 Pune Cantonment Board ... Petitioner versus Rakesh Motilal Sharma ... Respondent ... Mr. K.T. Presswalla with Mr.Khoshmukh Davier i/b M/s.Mulla & Mulla for the petitioner. CORAM : D.G. KARNIK, J DATED : 20th December 2010 ORAL ORDER 1. This petition is directed against an order dated 18 June 2010 passed by the learned District Judge-5, Pune allowing the Miscellaneous Civil Appeal filed by respondent and thereby granting an interim injunction restraining the petitioner from demolishing the suit premises till the decision of the suit. 2. On 27 November 1996, the petitioner Pune Cantonment Board granted to the owners permission for construction of a building on the property bearing House No.2147, Modikhana, 2 WP No.9547/10 situated within its limits. In accordance with the said building permission, the owner/promoter commenced construction of a building and intimated to the petitioner (hereinafter referred to as “Cantonment Board”) that he had commenced the construction on or about 5 November 1997. According to the Cantonment Board, the building construction ought to have completed within a period of one year of the commencement. However, the construction was not so completed and was continued beyond the period of one year without seeking any extension after 5 November 1998. The Cantonment Board, therefore, issued a notice purporting to be a notice u/s.185(1) of the Cantonments Act, 1924 addressed to Mr.Rashiklal Nahar, the promoter, to stop erection/re-erection of the building. The noticee did not pay any heed to the notice and continued the construction. Consequently, the Cantonment Board issued another notice on 1 September 1999 purporting to be a notice u/s.256 of the Cantonment’s Act, 1924 intimating to him that the unauthorized construction would be removed on or after 10 days. It appears that Mr.Nahar then filed a suit against the Cantonment Board for an injunction restraining it from demolishing the construction. An interim relief was initially granted but the suit was dismissed on 15 December 2004 for non appearance of the plaintiff. It appears that thereafter the respondent no.1 who claims to have purchased 2 shops in the building filed another suit, bearing RCS No.548 of 2010, for an injunction restraining the Cantonment Board from demolishing his shops. By an order dated 4 May 2010, the trial Court dismissed 3 WP No.9547/10 the application for interim injunction. However, an appeal filed by the respondent was allowed by the District Court by an order dated 18 June 2010. The appellate Court granted an injunction restraining the Cantonment Board from demolishing the suit shops till the disposal of the suit. That order is impugned in this petition. 3. The case of the respondent is that his father had purchased the suit shops from the promoter/developer by an agreement dated 29 May 1997 executed under the provisions of Maharashtra Ownership Flats Act, 1963. On death of his father Motilal on 29 July 2008, the respondent had inherited the suit shops and was the owner thereof. He was carrying on business in the suit shops for more than 10 years since the death of his father. No notice whatsoever was served either on him or his father and the Cantonment Board has no authority to demolish the suit shops without notice to him. 4. Mr.Presswalla, learned counsel for the petitioner submitted that at the time when the notice u/s.185 of the Cantonments Act 1924 was issued, the respondent or his father was not the owner of the shop and therefore, it was not necessary to issue any notice to them. He submitted that on the date of the notice, building was under construction and therefore also, it was not necessary to issue notice to the respondent or his father who might have purchased the suit shops from the promoter. The notice issued only to the promoter was valid and no injunction could be granted restraining 4 WP No.9547/10 the Cantonment Board from demolishing the construction which was carried out unauthorisedly after expiry of the building permission. 5. The notice u/s.185 was preceded by a letter dated 31 May 1999 addressed to Mr.Nahar. The letter states that the site was inspected by officers of the Cantonment Board and it was noticed that the construction of RCC frame structure for basement and ground floor area was completed and the work of casting of the RCC columns on the first floor was in progress. The notice u/s.185 also mentions that construction of RCC frame structures for basement and ground floor area admeasuring 46’ x 19.06 was completed and the work of casting of the RCC columns on the first floor was in progress. From the letter dated 31 May 2009 and the notice u/s.185 dated 7 June 1999, it appears that the work of construction of the basement and ground floor was substantially completed when the notice was issued. Prior to that, the promoter had agreed to sell the suit shops to the father of the respondent by an agreement dated 29 May 1997. The question therefore that arises for my consideration is whether it was necessary to issue notice of demolition to the respondent. 6. In Commissioner of Income Tax Vs. Fazalbhoy Investment Co.Pvt Ltd, the Division Bench of this Court had an occasion to consider who is an owner of the flats in a building where the building was constructed by a developer after entering into an 5 WP No.9547/10 agreement of sale with the flat holders. Therein, though the flat purchasers had executed the agreement of purchase and had even received the possession the sale deeds were not executed in their favour. Consequently, the Income Tax Department had sought to add the income from “house property” in the income of the developers/owners of the land and not in the hand of the flat purchasers. A Division Bench of this Court held that in India, the concept of dual ownership was well recognised and when a building or a flat was constructed by a promoter or developer after entering into an agreement of sale with the flat purchasers with the help of or using the money of the flat purchasers, the flat purchasers would be the owners of the respective flats. In the present case also, father of respondent entered into an agreement of purchase with the promoter on 29 May 1997 long prior to the construction of the suit shops. Prima facie, the suit shop appears to have been constructed by using the money paid by the father of the respondent 1. The father of the respondent was, therefore, prima facie the owner of the suit shops. Hence, in my view, respondent was entitled to a notice u/s.185 of the Cantonment’s Act, before commencing demolition of the suit shops. 7. Section 185 of the Cantonment Board Act reads thus: Power to stop erection or re-erection or to demolish (1) A Board may, at any time, by notice in writing, direct the owner, lessee or occupier of any 6 WP No.9547/10 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 184 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 184, 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 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. (2) A Board shall 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 order under section 7 WP No.9547/10 181 sanctioning the erection or re-erection has been suspended by the Officer Commanding-in-Chief, the Command, under clause (b) of sub-section (1) of section 52, and shall in any such case in like manner direct the demolition or alteration, as the case may be, of the building or any part thereof so erected or re-erected where the Officer Commanding-in-Chief, the Command, thereafter directs that the order of the Board sanctioning the erection or re-erection of the building shall not be carried into effect or shall be carried into effect with modifications specified by him: Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or alteration of any building which has been erected or re-erected prior to the date on which the order of the Officer Commanding-in-Chief, the Command, has been communicated to him. 8. When a construction is being done unauthorisedly on any land in a Cantonment area the Cantonment Board by a notice in writing is empowered to direct the owner, the lessee or the occupier of the land to stop the erection or re-erection. Since the respondent was prima facie the owner, the respondent Cantonment Board was required to issue a notice to him. It may 8 WP No.9547/10 also be noted that by the notice u/s.185, the respondent Cantonment Board had directed the promoter to stop further construction on the land. The construction of the basement and ground floor was completed before the notice and casting of the RCC column on the first floor was in progress. Admittedly, the building plans were passed on 27 November 1996 and even as per the notice of the Cantonment Board, plans were valid till 5 November 1998. The construction of the basement and ground floor which was completed prior to 5 November 1998 could not therefore be termed as an illegal construction as it was made in accordance with the sanctioned plans which were in force atleast till 5 November 1998 on the own admission of the Cantonment Board. The construction which was made prior to 5 November 1998 therefore cannot be demolished by the Cantonment Board. 9. In any event, the respondent had made out a prima facie case against the demolition of the suit shops on the ground floor. At the interim stage and till the evidence is adduced, it cannot be said that the shops were not completed till 5 November 1998. The Officer who had inspected the suit premises and submitted a report would be required to be examined as a witness in the Court to state what was the stage of construction and his evidence would be subject to the cross examination. Until this is done, it would not be appropriate to hold, at an interim stage, that the construction of the shops completed till 5 November 1998 was illegal and to refuse the interim injunction. This is especially so 9 WP No.9547/10 when on the averment of the respondent, he is carrying on business therein for more than 10 years after the death of his father. 10. Mr. Presswalla submitted that notice u/s.185 is required to be given only to the owner of the land and not to the owner of the structure. The contention would be required to be examined at trial. The District Court did not commit any error in law in protecting the suit shops till the final hearing and disposal of the suit. 10. No case for interference in exercise of an extra ordinary jurisdiction u/s.227 of the Constitution of India is made out. Writ Petition is accordingly rejected. (D.G.KARNIK, J)