Civil Writ Petition No.1959 of 2014

17th July, 2014.

Petitioner Counsel: Dr. VIRENDRA V. TULZAPURKAR, Mr. NIKHIL SAKHARDANDE, Ms. AYUSHI AGARWAL
Respondent Counsel: Shri K.J. PRESSWALA, Shri SANDEEP GOYAL

Cases Cited:
Ram Swaroop Gupta Vs. Cantonment Board Lucknow, AIR 1961 Allahabad 263 [Para 4,19]

JUDGMENT

A. S. CHANDURKAR, J. :- By this Petition under Article 226 of the Constitution of India the petitioner challenges notice dated 21st May, 2009 issued by respondent No.1 Pune Cantonment Board issued under Section 248 (1) of the Cantonments Act, 2006 (hereinafter referred to as "the said Act" for short), order dated 30th November, 2013 passed in Appeal preferred by the petitioner under Section 340 of the said Act and consequent notice dated 12th February, 2014 issued by the Board calling upon the petitioner to remove the unauthorized construction in question. Considering the nature of controversy, we have heard the learned Counsel for the parties at length. Hence, Rule. Heard finally with the consent of the learned counsel for the parties.

2. The petitioner who is an occupant of residential premises within the limits of the Cantonment Board had sought sanction of building plans by applying to the Board on 2nd August, 2007. On 6th May,2008 the Board accorded sanction to the building plans under Section 238 of the said Act. The petitioner thereafter commenced the work of construction. During the course of inspection on 23rd December, 2008 it was noticed by the technical staff of the Board that certain works were being carried out at the servant quarters without prior approval of the Board. It was noticed that there was demolition and reconstruction of the servant quarters. On being asked to stop the aforesaid work the petitioner informed the Chief Executive Officer that minor repairs were being undertaken and old GI sheets were being replaced. Thereafter on 21st May, 2009 the Chief Executive Officer of the Board issued a notice to the petitioner in exercise of power under Section 248 (1) of the said Act to demolish the work undertaken and stop further construction at the servants quarters.

3. The petitioner being aggrieved by the aforesaid notice preferred appeal under Section 340 of the said Act before the General Officer, Commanding in Chief Pune. The Appellate Authority after considering the material on record and after hearing the parties held that the petitioner had demolished and reconstructed the old servant quarters without sanction from the Board. The appeal preferred by the petitioner came to be dismissed. As a consequence thereof the Board issued a notice to the petitioner on 12th February 2014 asking him to comply with the initial notice dated 21st May, 2009. It is in this background that the petitioner has approached this Court and has challenged the action of the Board calling upon him to demolish the work undertaken by him.

4. Dr Virendra Tulzapurkar, learned Senior Counsel with Mr Nikhil Sakhardande and Ms Ayushi Agarwal submitted that the Board had initiated the entire action on a wrong premise. It was submitted that work in the nature of minor repairs to the roof was sought to be undertaken and such work did not require any previous sanction from the Board. It was submitted that as the old GI sheets on the roof were rusted resulting in leakage, the same were required to be replaced. This, the learned Senior Counsel urged did not amount to making any material alteration in the building and hence there was no occasion to invoke the provision of Section 235 (2) (a) of the said Act. Relying upon the decision of the Allahabad High Court in the case of Ram Swaroop Gupta Vs. Cantonment Board Lucknow reported in AIR 1961 Allahabad 263 it was submitted that replacing the roof with a view to prevent leakage did not amount to any material alteration to the premises. It was, thus, submitted that the entire action initiated by the Board was misconceived. It was further urged by the learned Senior Counsel that the impugned order dismissing the appeal preferred by the petitioner did not disclose proper application of mind to the relevant facts and the contentions as urged. In the absence of a detailed and reasoned order being passed by the Appellate Authority the same could not be sustained in law. It was, therefore, urged that the entire action initiated by the Board in the aforesaid matter was required to be quashed.

5. Shri K.J. Presswala, learned Counsel for the respondents along with Shri Sandeep Goyal, on the other hand, submitted that the entire action initiated by the Board was in accordance with law. It was submitted that though the building plans sanctioned by the Board were with regard to bungalow No.2, the petitioner had without any sanction demolished and reconstructed the servant quarters that were situated towards the southern side of the property. It was submitted that said action was initiated after site inspection of the property on 23rd December, 2008. It was further submitted that the petitioner had not merely undertaken the work of replacing the roof but had in fact demolished the mud walls of the servant quarters and had reconstructed them with bricks and mortar. It was, therefore, submitted that the work of reconstruction amounts to a material alteration of building. The learned Counsel relied upon the provision of Section 2 (d) of the said Act and submitted that in terms of provision of Section 235 (2) of the said Act, the petitioner was deemed to have reerected the building by making material alteration. The learned Counsel for the Board also relied upon the Revised Land Policy, 1995 and especially clause 3.1E thereof. He submitted that as per said provision, no reconstruction or addition to an out house was permitted. He further urged that the judgment relied upon by the learned Senior Counsel for the petitioner did not apply to the case in hand. Referring to the averments made in the appeal memo preferred by the petitioner, it was submitted that there was no dispute whatsoever that the petitioner had undertaken the work of reconstruction. He, therefore, submitted that the petitioner was not entitled to any relief whatsoever.

6. After the learned Counsel for the parties were heard at length on 2nd July,2014, the matter was closed for judgment. Thereafter, on 7th July,2014 at 11:00 a.m. the learned Counsel for the petitioner sought permission to place on record affidavitinrejoinder sworn on 13th March, 2014. We directed the learned Counsel for the petitioner to inform the learned Counsel for the respondents about aforesaid request. Thereafter, at 3:00 p.m. on the same day the learned Counsel for the petitioner informed the Court that the learned Counsel for the respondents had been informed about the aforesaid request being made by the petitioner. However, the learned Counsel for the respondents was not present before the Court at 3:00 p.m. on 7th July,2014. Accepting the aforesaid statement made by the learned Counsel for the petitioner, we have in the interests of justice permitted the affidavitinrejoinder to be placed on record.

7. In the affidavitinrejoinder the petitioner has denied breaking down the servants quarters and reconstituting it in bricks and mortar. It is reiterated that only repairs of the roof of the servants quarters has been carried out. It is further stated that the report of the Junior Engineer was not on the record of the Appellate Authority and being a fresh piece of evidence the same cannot be relied upon. Moreover, though a committee was constituted on 16th March, 2009 to inspect the property, such inspection was never carried out.

8. It would be necessary to refer to certain relevant provisions of the said Act. Section 2(d) of said Act defines the expression "building". Said provision reads as under :

"2 (d) "building" means a house, out house, stable, latrine, shed, hut or other roofed structure whether of masonry, brick, wood, mud, metal or other material, and any part thereof, and includes a well and a wall other than a boundary wall but does not include a tent or other portable and temporary shelter."

As it is the case of the Board that there has been a material alteration undertaken by the petitioner under provisions of Section 235 (2) (a), it would be necessary to refer to the said provision which reads thus:

"(2) For the purposes of this Act, a person shall be deemed to erect or reerect a building who

(a) makes any material alteration or enlargement of any building; or"

9. Perusal of aforesaid provision indicates that the expression "building" has been defined to mean a house or out house or other roofed structure whether of brick, wood, mud or other material or any part thereof and a wall other than a boundary wall. Under provisions of subsection (2) of Section 235 of the said Act a person shall be deemed to erect or reerect a building if he makes any material alteration or enlargement of any building. For the purposes of erecting or reerecting any building in a Cantonment a notice is required to be given in writing under provisions of Section 235 (1) of the said Act. If such erection or reerection of a building is without giving a valid notice under Section 235 the same is made punishable under the provisions of Section 247 of the said Act. Under Section 248 of the said Act, the Board has power to stop such erection or reerection of a building that has been commenced without any notice and it can also direct demolition of such building has so been erected or reerected.Thus, if some work is carried out in any building in a Cantonment without giving any notice and applying for sanction, it would be necessary for such person to show that work undertaken has not resulted in any material alteration or enlargement of any building as contemplated by Section 235 (2) (a) of the said Act so that provisions of Sections 247 and 248 are not attracted.

10. A perusal of the notice dated 21st May, 2009 issued by the Chief Executive Officer to the petitioner specifies the details of construction undertaken and the demolition to be done. The same read as under :

Details of construction as undertaken by the owner/occupier in contravention of section 248 of the Act, 2006.	Specification of demolition reconstruction of building.
Demolition and reconstruction of the servant quarter measuring 776"x30.8"x12" ht approx. in BB masonry wall enclosed with CGI sheet roof situated towards south side of the subject property.	BB masonry wall & CGI sheet roof.

11. In the appeal preferred by the petitioner, the case sought to be made out was that he had undertaken routine maintenance work of the out house as most of the tiles were broken and the roof was profusely leaking. It was further stated that repair work of the walls was sought to be done and they were strengthened by reenforcement, repairing of cracks and plastering. According to the petitioner, the repairs were necessary and the same were of such a nature that no permission was required. According to the petitioner, restoration of a dilapidated and / or collapsed wall did not require obtaining prior sanction by giving notice to the Board. It would be relevant to reproduce the stand taken by the petitioner in paragraph viii of the Appeal Memo. The relevant portion reads thus :

"The Appellant submits that even otherwise, the restoration of a dilapidated and/or collapsed wall does not fall within the definition of erection/reerection within the meaning of Section 235 (2) of the Cantonments Act and therefore do not warrant obtaining prior sanction by giving notice under the section."

12. Thus, according to the Petitioner the work of restoring a dilapidated and/or collapsed wall did not amount to erection / re-erection of the building. In view of the aforesaid averments in the memo of appeal preferred by the petitioner under Section 340 of the said Act, it is clear that there was no serious dispute with regard to the findings arrived at during the course of site inspection on 23rd December, 2008 which were reproduced in the notice dated 21st May, 2009 above referred. Reference to the stand taken by the petitioner in the affidavitinrejoinder as regards aforesaid inspection note will be made a little later.

13. The Appellate Authority after considering the material on record along with the submissions made by both the sides found that the petitioner had violated the provisions of the Revised Land Policy, 1995 and provisions of Sections 234 and 235 of the said Act. The appeal of the petitioner was, therefore, dismissed.

14. A perusal of the order passed by the Appellate Authority indicates that it has taken into account all the material on record including the inspection note dated 23rd December, 2008, the photographs filed on record by the Board, the provisions of the said Act as well as the provisions of Clause 3.1E of the Revised Land Policy, 1995. After considering the aforesaid material the Appellate Authority came to the conclusion that the petitioner had demolished and reconstructed the old servant quarters without sanction from the Board. On that basis the Appellate Authority proceeded to dismiss the appeal preferred by the petitioner. The impugned order in that regard reveals proper application of mind to the material facts and provisions in that regard. Though it is true that the order passed by the Appellate Authority is not a very detailed order, reading of the entire order indicates that he has arrived at the conclusion that the petitioner had demolished and reconstructed the old servant's quarter without sanction from the Board after taking into account the entire material on record.

The stand of the petitioner in the appeal memo that the restoration of the collapsed wall did not amount to erection/reerection of building would also have to be taken into account while considering the manner in which the Appellate Authority applied its mind and came to the ultimate conclusion. If it was the case of the petitioner that restoration of a dilapidated and/or collapsed wall did not amount to erection/reerection of a building and if on the basis of material on record the Appellate Authority found such stand untenable in the light of provisions of said Act and the Revised Land Policy, 1995 then merely because the Appellate Authority did not assign elaborate reasons to support its conclusion, the same by itself would not vitiate the impugned order. We are satisfied that the aforesaid conclusion was arrived at by the Appellate Authority after duly considering the entire material on record along with relevant provisions in that regard. The case of the petitioner that the stand as taken in the appeal memo had been torn out of context cannot be accepted as by said stand the petitioner sought to justify the restoration of a dilapidated and/or collapsed wall as not being an erection / reerection.Hence, the submission of the learned Senior Counsel that the order of the Appellate Authority stood vitiated on account of nonapplication of mind cannot be accepted.

15. As regards the inspection note dated 23rd December, 2008 is concerned, it is the case of the petitioner in his affidavitinrejoinder that the same was not on the record of the Appellate Authority and hence it cannot be relied upon. However, the respondents have specifically referred to the said inspection by the technical staff on 23rd December, 2008 in paragraph 1 of their reply before the Appellate Authority dated 14th October, 2009. Similarly, said inspection note finds reference in paragraph 24 of the impugned order. The notice of demolition issued to the petitioner on 21st May, 2009 itself records the findings of the technical staff after inspection. Hence, it would be futile on the part of the petitioner to contend that the inspection note dated 23rd December, 2008 who was not before the Appellate Authority. The record of the case indicates otherwise. Hence, said stand of the respondent cannot be accepted.

16. As the respondents have justified the impugned action on the basis of the Revised Land Policy, 1995 and Clause 3.1E of the same, it would be necessary to reproduce the said clause which reads thus as under :

"3.1E. The nature of construction permitted under the additional floor space not exceeding 10% of such authorized floor space will include only appurtenances viz; bathrooms and kitchens verandas but not additional rooms. No reconstruction or additions will be permitted to the outhouses and annexes, if any, routine maintenance of these structures may however be undertaken."

17. Perusal of the aforesaid clause clearly indicates that no reconstruction or addition to an out house is permissible except routine maintenance. It being the case of the petitioner that he had restored a dilapidated and / or collapsed wall of the out house, it is clear that the same would amount to reconstruction of the out house. It is not in dispute that the Revised Land Policy, 1995 is applicable to Cantonment areas and the Board was, therefore, bound to comply with said Policy.

18. Now, turning to the submission made on behalf of the petitioner that replacement of the roof would not amount to any material alteration, the same will have to be considered in the light of the actual work carried out by the petitioner. The inspection note and the notice issued to the petitioner on that basis refers to the demolition and reconstruction of the servant quarters. Along with the said work masonry wall with GI sheet roof was also laid. According to the petitioner as stated by him in his memo of appeal the dilapidated and/or collapsed wall was sought to be restored and the existing roof that was leaking was replaced. Thus, it is not a case of merely replacing the roof simplicitor. The nature of work undertaken has the effect of a collapsed mud wall being replaced by the B.B. Masonry wall. Thus, the roof structure of mud which was an out house and thus a "building" as defined by section 2 (d) of the said Act was sought to be restored with B.B. Masonry wall and GI sheet roof. This, therefore, had the effect of making material alteration to the existing structure that was a "building" as defined by Section 2 (d) of the said Act. As the same was without giving notice and there being no sanction of the Board, it was deemed that the petitioner had reerected a building by making material alteration in terms of provisions of Section 235 (2) (a) of the said Act. Thus, considering entire nature of work carried out as referred to in the inspection note to which there was no serious challenge coupled with the averments of the petitioner in the memo of appeal referred to above, in the facts of the present case it cannot be said that replacing the roof with GI sheets did not amount to material alteration as urged.

19. In so far as the decision of the Allahabad High Court in the case of Ram Swaroop Gupta (supra) is concerned it is to be noted that in the said case the roof was replaced with RCC slab and tin sheets were replaced by erecting a wall. The learned Judge of the Allahabad High Court observed that though such alterations added to the comfort and safety of the residents the same did not amount to any material alteration in terms of provision of Section 179 (2) (a) of the Cantonments Act, 1924. It may be noted that provisions of Section 179 (2) (a) of the Cantonments Act, 1924 are in pari materia with the provision of Section 235 (2) (a) of the said Act. However, while holding the act of replacing the roof with RCC slab or replacing the tin sheets with brick wall did not amount to any material alteration, the definition of the expression "building" has not been taken into account. There is no discussion as to how the conclusion has been arrived at that the work undertaken did not amount to any material alteration. The relevant discussion in that regard in paragraph 6 of the judgment reads thus :

"The only question is whether there has been any material alteration. It is true that, in replacing the roof with R.C.C. Slab or replacing the tin sheets constituting the eastern wall of the kitchen with a brick wall, alterations have been effected which would normally add to the comforts and safety of the residents.

It is also true that the new construction is more lasting and substantial, but in my opinion, they do not amount to any material alteration."

20. With utmost respect to the learned Single Judge of the Allahabad High Court, we find ourselves unable to subscribe to the said view as taken. In our considered opinion, in view of the definition of the expression "building" in Section 2 (a) of the said Act, in the facts of the present case there has been material alteration to the building in question.

21. Thus, considering the material on record, we do not find that the impugned action of the Board directing the demolition of the construction undertaken by the petitioner without notice and sanction of the Board is either illegal or contrary to the provisions of the said Act and the Revised Land Policy, 1995. We do not find that there is any scope for interference by this Court under Article 226 of the Constitution of India. Thus, there being no merit whatsoever in the writ petition, the same is dismissed with no order as to costs. Rule stands discharged accordingly.

22. As the impugned action requires the petitioner to demolish the structure in question and said action of demolition was restrained by an adinterim order dated 20th February, 2014, it is directed, in the facts of the present case that the aforesaid interim relief shall continue to operate for a period of eight weeks from today to enable the petitioner to take such further steps as advised. It is clarified that after expiry of the period of eight weeks the ad-interim order granted on 20th February, 2014 shall cease to operate automatically.

Petition dismissed.