THE CANTONMENT BOARD. JABALPLIR AND ORS.

\',.

SRI S.N. AWASTHI AND ORS.

NOVEMBER 2, 199.1

[K. RAMASWAMY AND B.L. HANSARIA, .I.I.[ B

la/Jaipur ('antonn1enl Board At! :

S.181 ( 3 )-Permission to cons/met building grallted by the Board-Later on pennission 1vas cancelled-Since c"ondition 11recedent not sati.\jled viz.

C sanclion of Defence Eslalcs Officer not obtained-Held : Sanction accorded earlier was jJer se illegal-Since no vppo1tunity was afforded before cance/latfrJn pa1ty directed to jllc a fresh application and Board to consider the sanie and pass order.

The appellant-Board had granted permission to the Respondents for D construction of a building, but later on cancelled the same. Challenging the cancellation the respondents filed a writ petition in the High Court, which was allo\.l'ed on three grounds, viz. (i) that sanction having been granted its cancellation llithout giving an opportunity was in violation of the principles of natural justice; (ii) that the appellants had not specified E the distinction bet\veen 'lilitary Estates Oflicer' and 'Defence Estates Otlicer' for the latter to get pcnver to cancel the per1nission; and that since the respondents had started construction, on principles of ec1uity, tht' cancellation \\'as not justilied. Hence this appeal.

Disposing of the appeal, lhi~ l:ourt

HELD : 1. The land b situated \\ithin the Cantonment Area. Therefore, the title in the land stands vested in the Cantonment Board. What a person in la\l1'ul po.ssession \vould be entitled to enjoy is the lease-hold rights thereon subject to the conditions mentioned therein. For the ereclion or re-erection of a building, a licence from the Cantoruncnt Board is rec1uired as a pre-condition under the Act. Section 181 of the Jabalpur Cantonment Board Act in that behalf cover~ tht fitld. Thl At.:t \\'ii~ ~1111~ St'l(Utntly antt'nded substituting liH lht: "ords "l'vlilitary Est all' ( lllicer', 'Defence Estates ()flicer'. Thus, as on ()ctoher 1, 1983 thl:' ton1pttt11t ~1tfictT

to be consulted as a condition tu grant )Jern1ission by the t'antonn1t:nl l J

73'J

A Board for erection or re-erection of building by the Board was the 'Defence Estates ()tlicer'. Admittecll)', priorpermission was not obtained from him.

It is also on record that G.O.C. in Chief had suspended the Resolution by proceedings dated June 22, 1991 and he passed the order directing the Cantonment Board to reconsider the matter and pursuant thereto, the

B Board had cancelled the sanction. Since the condition precedent of prior sanction of Defence Estates Officer under sub-section (3) of Section 181 had not been obtained, the sanction for construction of the house granted by the Cantonment Board was per se illegal. [741-F, 742-B-C]

2. No prior notice, before cancellation by the Board, was given to the C respondents. In view of the fact that statutory condition has not been

complied, this Court does not like to have the proceedings delayed by directing the Board to give an opportunity to pass fresh order. The proper course would be to direct the respondents to make an application afresh and the same would be considered by the Board according to law and D would be disposed of. The Board would consider the same within one month from the date of the application and should make reference within 15 days thereafter to the 'Defonce Estates Ollicer' for appropriate sanction, who would then take action under Section 181 (3) of the Act within one month. On return thereof, final order would be passed by the Cantoninent Board within one month from the date of receipt of the order passed E by the Defence Estates Officer. [742-D-E]

3. In case the Board or the Defence Estate Officer would be inclined to reject the application for sanction, they should give reasons in support thereof. Along with the application, the respondents would be at liberty to F file all their documents in support of their claim for sanction. [742-F)

4. Construction made in contravention of law would not be a premium to extend equity so as to fecilitate violation of mandatory requirements of law. The High Court, therefore, was not justified in extending equity for completion of construction. [742-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10281 of 1995.

From the Judgment and Order dated 2.3.94 of the Madhya Pradesh H High Court in M.P. No. 2233 of 1991.

CANTONMENT BOARD v. S.N. A WASTHI 741

V.R. Reddy, Additional Solicitor General, P.S. Nair and T.G. N. A Nair, for the Appellants.

U.R. Lalit and AK. Chitale and Niraj Sharma for the Respondents.

The following Order of the Court was delivered :

Leave granted.

This appeal by special leave arises from the order of the High Court of Madhya Pradesh dated.March 2, 1992 passed in Misc. Petition No. 2233 of 1991.

The Cantonment Board through its Resolution No. 10 dated 30th March, 1990 had granted permission for construction of a building which later on was cancelled by another proceedings dat•d July 5, 1991. Calling in question of the cancellation, the respondents filed the writ petition. The High Court allowed the writ petition on three grounds, viz., that the sanction having been granted in favour of the respondents, cancellation thereof without giving an opportunity would be in violation of the principles of natural justice. It was also held that the appellants had not specified the distinction between the 'Military Estates Officer' and the 'Defence Estates Officer' for the latter to get power to cancel the permission. Further, it was already held that in equity, since the respondents had started construction, the cancellation was not justified.

It is not in dispute and in fact cannot be disputed that the land is situated within the Cantonment Area. Therefore, the title in the land stands vested in the Cantonment Board. What a person in lawful possession would be entitled to enjoy is the lease-hold rights thereon subject lo the conditions mentioned therein. For the erection or re-erection of a building, a licence from the Cantonment Board is required as a pre-condition under the Act. Section 181 of the Act in that behalf covers the field. Sub-section

(3) thereof reads thus :

"(3) The Board, before sanction the erection or re' erection of a G building on land which is under the management of the Military Estates Officer, shall refer the application to the Military Estates Officer for ascertaining whether there is any objection on the part of the Government to such erection or re-erection; and the Military Estates Officer shall retUrn the application together with H

his report thereon to the Board within .>O days after it has hccn receivl'd by hin1."

The Act \Vas subsequently an1cndcd by A1ncnd111cnt AcL No. Hi of 1983 \vhich can1t.; into force vv.c.f. (Jctober 1, l'J83 substituting fl)r the \Von.Is 'Military Estate ()fficer' 1 'Defence Estates ()fficc:r'. Thus, as on ()ctobcr :I,

1983 the competent officer lo be consulted as a condition to grant permission by the Cantonment Board for erection or re-erection of building by the Board was the 'Defence Estates Officer'. Admittedly, prior permission was not obtained from him. It is also on record that G.O.C.-in-Chief had suspended the Resolution by proceedings dated June 22, 1991 and he passed the order directing the Cantonment Board lo reconsider the matter and "pursuant thereto, the Board had cancelled the sanction. Since the condition precedent of prior sanction of Defence Estate Oflicer under suh-sec\ion (3) of Section 181 had not been obtained, the sanction for construction of the house granted by the Cantonment Board was per se illegal. It is true that no prior notice, before cancellation by the board, was given to the respondents. In view of the fact that statutory condition has not been complied, we do not like to have the proceedings delayed by directing the Board to give an opportunity to pass fresh order. Instead, we think that the proper course would be to direct the respondents to make an application afresh and the same would be considered by the Board according to law and would be disposed of. The Board would consider the same within one month from the date of the application and should make reference within 15 days thereafter to the 'Defence Estates Officer' for appropriate sanction who would then take action under Section 181 (3) of the Act within one month. On return thereof, final order would be passed by the Cantonment Board within one month from the date of receipt of the order passed by the Defence Estates ()fficer. lt is needless to mention that in case the Board or the Defence Estates Officer would he inclined lo reject the application for sanction, they should give reasons in support thereof. It is also needless to mention that along with the application, the respondents would be at liberty to file all their documents in support of their clain1 for sanction. Construction made in contravention of la\v would not be a premium to extend equity so as to fecilitate violation of mandatory requirements of law. The High Court, therefore, was not justified in extending equity for completion of construction.

The appeal is disposed of accordingly. No costs.

G.N.

Appeal disposed of.