The Cantonment Board, Jabalpur & Ors Vs. Sri
S.N. Awasthi & Ors [1995] INSC 616 (2 November 1995)
Ramaswamy, K. Ramaswamy, K. Hansaria B.L. (J)
CITATION: 1995 SCC Supl. (4) 595 1995 SCALE
(6)462
ACT:
HEAD NOTE:
O R D E R
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 dated 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 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 to 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-s(3) thereof reads thus:- "(3) The
Board, before sanction the erection or re-erection of a 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 his
report thereon to the Board within 30 days after it has been received by
him." The Act was subsequently amended by Amendment Act No.16 of 1983
which came into force w.e.f. October 1, 1983 substituting for the words "Military
Estate Officer', 'Defence Estates Officer'. Thus, as on October 1, 1983 the competent officer
to 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 to
reconsider the matter and pursuant thereto, the 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. 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 Officer. It is
needless to mention that in case the Board or the Defence Estates Officer would
inclined to 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 claim for sanction.
Construction made in contravention of law would
not be a premium to extend equity so as to facilitate 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.
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