Pt. Rama Shanker Mishra Trust And ... vs Union Of India & Another
2011 Latest Caselaw 4909 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										    AFR
 
										Reserved
 
	Civil Misc. Writ Petition No. 32082 of 2010.
 
Pt. Rama Shanker Mishra Trust and others.	 ........      Petitioners.
 
					Versus
 
Union of India and another.			        ........      Respondents.
 
				      Connected with:
 
	Civil Misc. Writ Petition No. 68479 of 2009.
 
Pt. Rama Shanker Mishra Trust and others.	.........	Petitioners.
 
					Versus 
 
The Cantonment Board, Agra and others.	..........	Respondents.
 
					----------

Present:

(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava)

Appearance:

For the Petitioners : Mr. Kesari Nath Tripathi, Sr. Advocate.

Mr. P.C. Jain.

For the Respondents : Mr. B.D. Mandhyan, Sr. Advocate,

Mr. C.B. Gupta, &

Mr. M.I. Khan.

--------

Amitava Lala, J.-- Since the controversy involved in both the aforesaid writ petitions relates to selfsame property, both the writ petitions are being decided by this common judgement and order.

In order to understand the controversy, first of all let us see the factual aspect of the matters, as submitted by the respective parties before this Court.

According to the petitioners, petitioner no. 1 is a trust, whereas petitioner nos. 2 and 3 are lessees thereof. In the Cantonment Area of Agra, there was a bungalow bearing No. 104-A, M.G. Road, which was purchased by predecessor of petitioner no. 1 by registered sale deed dated 28th November, 1873 as a free hold property measuring 12 bighas. The area of land underneath and included in the said bungalow is comprised in General Land Register (in short called as ''GLR') Survey No. 260 area 5.811 acres (private land), GLR Survey No. 260-A area 1.162 acres (Class B-3 land on old grant) and GLR Survey No. 260-B area 504 square feet (Class-C land). The petitioners gave a notice dated 18th January, 2008 under Section 235 of the Cantonments Act, 2006 (in short called the ''Act, 2006') to the Cantonment Board, Agra (hereinafter in short called as the ''Board') to erect a new building of proposed hotel and shops over the land of Bungalow No. 104-A (GLR Survey No. 260 area 5.811 acres). As per Section 238 (3) of the Act, 2006 the Board vide its Resolution No. 296 dated 31st January, 2008 referred the said notice and plan to the Defence Estate Officer, Agra Cantonment, Agra for ascertaining whether there is any objection on the part of the Government to such proposed erection of the building. The Defence Estate Officer, after obtaining comments from local military authorities and confirming willingness of the petitioners to pay requisite charges for change of purpose, did not raise any objection to the erection of proposed hotel and shopping complex on the land of GLR Survey No. 260 and vide its letter dated 30th April, 2008 communicated its decision to the Chief Executive Officer of the Board with three conditions that: (i) no approach road will be allowed on Gwalior Road through GLR Survey No. 259; (ii) height of proposed building will be according to the prescribed limit as per bye law; and (iii) in case of change of purpose, charges will be paid by the petitioners. On such conditions, the plan of the petitioners was sanctioned by the Board vide its Resolution No. 27 dated 09th May, 2008. However, before issuing sanction to the petitioners, the Chief Executive Officer again sought confirmation regarding private nature of land from the Defence Estate Officer, who, in turn, by letter dated 12th May, 2008 confirmed that GLR Survey No. 260 area 5.811 acres (over which area only the proposed constructions were to be raised) is a private land. Ultimately sanctioned plan was released to the petitioners requiring them to deposit processing fee and water charges, which the petitioners duly deposited. The Chief Executive Officer by letter dated 21st May, 2008 directed the petitioners to communicate the date of commencement and completion of construction as per Section 242 of the Act, 2006. Later on, the General Officer Commanding-in-Chief, Central Command, who is final and competent authority under Section 56 of the Act, 2006 to take a call on the military point of view, also approved the construction of hotel and shop with the only condition of limiting the access to the proposed complex only from M.G. Road and not through defence land. This was communicated to the petitioners by letter dated 14th October, 2008. Ultimately, having received confirmation from all quarters, the petitioners by letter dated 15th July, 2009 communicated the Chief Executive Officer that construction will commence by 05th August, 2009 and required water connection. Other formalities including no objection from the Fire Fighting Authority etc. were also completed by the petitioners.

However, subsequently some military authorities proposed the petitioners for construction of a residential complex for group housing on the land in question instead of hotel. The petitioners were called to negotiate and the matter was discussed with the Local Military Authorities at length in the meetings dated 28th August, 2009 and 03rd October, 2009, in which construction of residential complex having height about 92 feet was agreed, as the Board has power to relax the rule. This was also informed to the petitioners vide letter dated 06th October, 2009. In this background, the petitioners suspended construction of hotel and waited for required approval of residential complex and when no approval was communicated within thirty days, petitioners sent a reminder dated 24th November, 2009 to expedite the matter within ten days, otherwise the petitioners will be free to commence the construction work of hotel as per sanctioned map. Despite that when petitioners received no response, they on 07th and 08th December, 2009 commenced the construction of hotel and shop, but the local military personnel came on the spot and forcefully stopped the work and when the petitioners tried to contact the officers, they refused to co-operate. In such circumstances, the petitioners approached this Court by means of Civil Misc. Writ Petition No. 68479 of 2009 (Pt. Rama Shanker Mishra Trust and others Vs. The Cantonment Board, Agra and others) seeking directions upon the respondents not to obstruct and interfere in the construction of hotel and shops as per approved plan and also to take a decision in regard to the residential complex as per their offer dated 06th October, 2009, within such reasonable time before irreversible stage of construction process of the hotel.

During pendency of such writ petition, Deputy Secretary, Ministry of Defence, Government of India issued show cause notice dated 16th April, 2010 to the President of the Board purporting to be under Section 57 of the Act, 2006 to show cause as to why the decision of the Board being Resolution No. 27 dated 09th May, 2008 be not modified or revoked, as the sanction of building plan for construction of a hotel and shops amounts to change of purpose. Subsequent to aforesaid notice, in order to be able to give reply, the Board took a resolution dated 06th May, 2010, wherein on the basis of report of Defence Estate Officer dated 05th May, 2010 (which was sought and given on the same day) resolved that GLR Survey No. 260 was for residential purpose and sanction of building plan for hotel and shops amounts to change the purpose and thereby, recommended to revoke the decision of the Board. Ultimately, the Government of India by its order dated 08th October, 2010 in exercise of powers under Section 57 of the Act, 2006 set aside the decision of the Board as contained in Resolution No. 27 dated 09th May, 2008. It is against this background that the petitioners have filed Civil Misc. Writ Petition No. 32082 of 2010 (Pt. Rama Shanker Mishra Trust and others Vs. Union of India and another) challenging the show cause notice dated 16th April, 2010 issued to the President of the Board, resolution dated 06th May, 2010 and order dated 08th October, 2010. Thus, both the writ petitions are clubbed together for analogous hearing.

When the earlier writ petition was filed before this Court due to apparent high-handedness of local military personnel, there was no occasion for the authority under the Government of India to sit on it and issue show cause notice upon the Board and decide the fate of the persons in connection with the immovable property, who were not before them. This action is per se arbitrary. It is not expected from any authority under Government of India. Had it been so urgent, the respondents could have approached the writ Court for appropriate order or to obtain leave to proceed against the petitioners. But it had no business to subscribe the illegal act of local military personnel to stop the work. Negotiation, if any, can not rule out or frustrate the original purpose of sanctioning plan unless the negotiation arrived at a final consensus. By this cause alone the litigation is multiplied and valuable judicial time has been consumed. The local military personnel, who had shown high-handedness, are required to be identified and penalised for the cause of indiscipline.

Moreover, it is unbelievable state of affairs that all the Defence Authorities inclusive of authority under the Union of India were unaware that the petitioners' private plot of land, if any, was recorded for residential purpose. Had it been so, there was no occasion for putting condition upon the petitioners for sanction of plan on paying requisite charges for change of purpose. As per the Act, 2006, the Government has right to raise objection under Section 238(3) at the threshold before the Board proceeds to consider the sanction of plan, but in the present case at that time the Government did not raise any objection and now after a gap of about two years wanted to review the order under Section 57 of the Act, 2006 taking advantage of the words ''at any time' therein. Dictionarically it means grant of time without limit but legally period of time is ''limited by circumstances' or it means ''within reasonable time'. Therefore, when the law is silent on that score, principle of law made for the purpose will be applied to fill up the vacuum. In case of review, law of limitation speaks that period of limitation is thirty days from the date of the order. Moreover, Section 238(3) of the Act, 2006 contemplates objection, if any, before sanction of plan regarding erection or re-erection of a building by the Board on land under the management of Defence Estate Officer and the same will be ascertained from the Government within thirty days after receipt. Even to satisfy the test of reasonable time judgement reported in AIR 1977 All. 204 (Jaswant Singh Vs. Cantonment Board, Meerut and others) has been placed, wherein shortly after sanction of the plan i.e. within six weeks the authority concerned interfered with the decision to recall the same unlike the present case where not only earlier order was wanted to be reviewed not only after a period of about two years of sanction but also after partial construction in connection thereto. The power under Section 57 of the Act, 2006 can be utilized sparingly in the exceptional circumstances but not in a routine manner when other provisions are available, otherwise it has to be construed as misuse of power. Generally, the process of review stands within narrow compass. So far as Section 57 of the Act, 2006 is concerned, virtually it is an interdepartmental review, where there is no scope of affected person to represent his case. Therefore, in that way, such process of review is further narrower, which will definitely be applicable in the exceptional circumstances and where no other provisions are contemplated. A show cause notice was issued by the Deputy Secretary, Government of India to the President of the Board and on 06th May, 2010 the Board resolved that status of the land is classified as ''B-3' i.e. under the management of MEO (Military Estates Officer) and the landlord is the Government of India and only holder of occupancy right of bungalow is with the trust for the residential purpose. If a property is held absolutely on private title, landlord thereof will not be the Government of India and will not be classified as ''B-3'. Since in GLR Survey No. 260 description of Bungalow No. 104-A is for residential purpose, therefore, sanction of any building plan for hotel or shops amounts to change of purpose. Hence, the Board unanimously resolved that the Government of India be apprised about the reply of the Board and the Government of India may modify or revoke the decision earlier taken by the Board on 09th May, 2008. In this backdrop, the Government of India reviewed the earlier resolution of the Board and communicated to the President of the Board by order dated 08th October, 2010 that the site of Bungalow No. 104-A, Agra Cantonment comprises of GLR Survey Nos. 260 and 260-A measuring 5.811 acres and 1.162 acres described as ''Bungalow No. 104-A' and ''Abdullah Bagh part of Bungalow No. 104-A' respectively classified as ''B-3' land and is placed under the management of the Defence Estate Officer. Landlord of both the survey numbers is the Government of India and the Secretary, Pandit Ram Shankar Trust is described as holder of occupancy rights. Nature of holder of occupancy rights is shown as ''private' in respect of GLR Survey No. 260 and ''Old Grant' in respect of Survey No. 260-A. The remarks column in respect of GLR Survey No. 260 describes it as ''partly private being granted by Mahrattas as Abdulla Bagh 10 Bighas private 2.25 Bighas Government'. It is further mentioned in the order that certain acts of omission and commission in the sanction of the building application for construction of a hotel and shops in the premises of Bungalow No. 104-A were noticed by the Government and it was held as change of purpose. Since the Board has taken a decision unanimously to revoke the decision dated 09th May, 2008, ultimately the Government of India set aside the said decision in exercise of the powers conferred under Section 57 of the Act, 2006.

On the other hand, petitioners' contention is that earlier entire area of Bungalow No. 104-A was recorded as single Plot No. 260 under Class ''B-3' as ''Old Grant'. But subsequently correction was made in the said entry dividing the plot into three plots i.e. Plot Nos. 260 area 5.811 acres, 260-A area 1.162 acres and 260-B area 504 square feet recording as ''private', ''old grant' and ''vested in cantonment' respectively. Plot Nos. 260-A and 260-B were re-written as under Class ''B-3' and ''C'. However, the originally written Class ''B-3' for the unamended entry of entire area was inadvertently not scored out and the same is now being illegally attributed to amended Plot No. 260. No land, which is held as ''private' can fall under Class ''B-3'. Both these entries are contradictory and can not exist simultaneously for the same land. If both the Plots i.e. Plot Nos. 260 and 260-A were land of Class B-3 and were held on "Old Grant", there was no reason or logic to assign them separate numbers and record separately in the same GLR.

At the time of sanction of plan, the provisions of Section 238 of the Act, 2006 will be available to the Board, provided the land is under the management of the Defence Estate Officer. Power to stop erection or re-erection or to demolish any construction is available to the Board under Section 248 of the Act, 2006. Both the above provisions contemplate hearing of the parties unlike Section 57 of the Act, 2006. The authority has to ascertain the class of the land at first. Respective document/s annexed to the writ petitions show that the land in question is private land. Admittedly, it has been used for residential purpose. Even if management lies with the Defence Estate Officer, then only the working of the authority will be limited to sanction of plan or refusal thereto like any other Development Authority or Municipal Corporation. Moreover, when permission for construction is granted subject to payment of certain charges for change of use, it implies that original use of the land and/or premises was known to everyone. Hence, subsequent decision to rule out earlier decision based on purported change of use is unsustainable in nature. Belated interference of the respondent authority to suit the personal purpose of some overenthusiastic influential military personnel is also without due process of law. Issuance of authoritative directions, if any, and to pursue the petitioners to convert the building from hotel and/or shop to group housing residential accommodations are two distinct and different purposes. As because their proposal was not accepted by the petitioners, the authority can not act arbitrarily. The authority has misused the power. Moreover, the action is in violation of Article 14 and 19 of the Constitution of India.

Section 57 of the Act, 2006 arises to review the decision or order of the Board etc. by the Central Government giving opportunity to the Cantonment Board to give reply to show cause. The Board, instead of giving reply, itself took a resolution and thereby revoked the earlier order sanctioning the plan without affording any opportunity of hearing to the petitioners and communicated to the Central Government, therefore, nothing remained to be reviewed by the Central Government but to put their seal and signature upon such decision of the Board. On the other hand, by such action opportunity of hearing to the petitioners as available under Chapter X read with Chapter XV and Schedule V under Section 340 of the Act, 2006 was also frustrated because after seal and signature of the Central Government, no authority will be able to take a decision contrary thereto. According to us, the entire process, which has been adopted by the authority, is wholly unjustified, arbitrary, malafide and unfair.

Hence, the show cause notice dated 16th April, 2010, resolution dated 06th May, 2010 and the order dated 08th October, 2010, which are impugned in Civil Misc. Writ Petition No. 32082 of 2010, are quashed. The petitioners are at liberty to carry out the construction works as per the plan sanctioned on 09th May, 2008. The respondents are restrained from interfering with the construction work. In view of this, no further order is required to be passed in the earlier writ petition i.e. Civil Misc. Writ Petition No. 68479 of 2009. The order passed herein will govern both the writ petitions.

Accordingly, both the writ petitions are allowed, however, without imposing any cost.

(Justice Amitava Lala)

I agree.

(Justice Ashok Srivastava)

Dated: 29th September, 2011.

SKT/MAA/-

Hon'ble Amitava Lala, J.

Hon'ble Ashok Srivastava, J.

Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 10.00 A.M. in the Court upon notice to the parties.

The writ petition is allowed, however, without imposing any cost.

Dt./- 29.09.2011.

SKT/-

For judgement and order, see order of the date passed on the separate sheets (ten pages).

Dt./-29.09.2011.

SKT/-