Board & Anr Vs. Mohanlal & Anr  INSC 7 (2 January 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 AIR 1586 1996 SCC (2) 23 JT 1996 (1) 77 1996 SCALE (1)153
O R D
appeal by special leave arises from the order of the Division Bench of the
Madhya Pradesh High Court in Misc. Petition No. 2090/75 passed on November 5, 1979, filed under Art. 226 of the
Constitution. The admitted facts are that the appellant had issued a notice on March 27, 1993 under Section 85 of the Cantonment
Act, 1924 (for short, `the Act') to the respondent for demolition of the
construction made in the property now in controversy. The Ist respondent had
received the notice on May
2, 1973, but he
carried out further construction. However, notice under Section 256 was issued
on January 3, 1974 and second notice ultimately was
issued for demolition on September
13, 1974 under Section
185. The Ist respondent had submitted his reply on October 30, 1974. The area committee on December 7, 1974, passed resolution after
considering the representation made by the Ist respondent to give 15 days time
for compliance of the notice dated March 27, 1973 and September 13, 1974 and in case he does not comply with the same it further
resolved to have the structure demolished through the agency of the Board.
Calling this action in question the respondent had filed the above writ
petition in the High Court. The Division Bench has held that though Section 185
read with 5th Schedule does not contemplate any enquiry being conducted or
reasons to be recorded, principles of natural justice require that necessary
notice and opportunity of hearing be given and after consideration of the
representation speaking order is required to be passed.
the speaking order had not been passed the action of the respondent was in
violation of the law.
only question in this case is whether the view taken by the High Court is good
in law. It is seen that the respondent in his reply had admitted that they
constructed, as pointed out by the Cantonment Board in its notice dated September 13, 1974, and the previous notice. But he
stated that he had done it bona fide and as he would not demolish it but
requested the authority to reconsider the matter and withdraw the notice. In
other words, he admitted that he had carried on illegal construction without
compliance with law.
question is whether enquiry in that behalf is required to be conducted. We are
of the considered view that the High Court was not right in its conclusion that
an independent enquiry requires to be held after the notice was issued and the
reply thereof was given by the respondent.
seen that the Cantonment Board is an elected body represented by people
themselves. When opportunity was given putting on notice of illegal
construction made by the respondent, reply thereof was given. The Board had
considered the representation and was not inclined to accede to the request
made by the respondent. Accordingly, the resolution passed by the Cantonment Board
cannot be faulted as violative of the principles of natural justice.
Shri Lekhi, learned counsel appearing for the appellants stated that the action
taken by the respondent can be candoned provided he complies with the law. In
view of the stand taken by the appellants, it would be open to the respondent
to make a representation to the Board which would forward the same to General
Officer Commanding in Chief at Sagar who would pass an appropriate order
according to law.
appeal is accordingly allowed. No costs.