Pune Cantonment Board vs Rakesh Motilal Sharma
2010 Latest Caselaw 309 Bom

                                      1                            WP No.9547/10

     mpt
             IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                         CIVIL APPELLATE JURISDICTION
                        WRIT PETITION NO.9547 of 2010




                                                    
     Pune Cantonment Board                           ...     Petitioner 




                                                   
       versus
     Rakesh Motilal Sharma                           ...     Respondent




                                         
                                           ...

Mr. K.T. Presswalla with Mr.Khoshmukh Davier i/b M/s.Mulla & Mulla for the petitioner.

CORAM : D.G. KARNIK, J DATED : 20th December 2010

ORAL ORDER

1. This petition is directed against an order dated 18 June 2010

passed by the learned District Judge-5, Pune allowing the Miscellaneous Civil Appeal filed by respondent and thereby granting an interim injunction restraining the petitioner from

demolishing the suit premises till the decision of the suit.

2. On 27 November 1996, the petitioner Pune Cantonment Board granted to the owners permission for construction of a building on the property bearing House No.2147, Modikhana,

situated within its limits. In accordance with the said building permission, the owner/promoter commenced construction of a

building and intimated to the petitioner (hereinafter referred to as "Cantonment Board") that he had commenced the construction

on or about 5 November 1997. According to the Cantonment Board, the building construction ought to have completed within a

period of one year of the commencement. However, the construction was not so completed and was continued beyond the period of one year without seeking any extension after 5

November 1998. The Cantonment Board, therefore, issued a

notice purporting to be a notice u/s.185(1) of the Cantonments Act, 1924 addressed to Mr.Rashiklal Nahar, the promoter, to stop

erection/re-erection of the building. The noticee did not pay any heed to the notice and continued the construction. Consequently, the Cantonment Board issued another notice on 1 September 1999

purporting to be a notice u/s.256 of the Cantonment's Act, 1924

intimating to him that the unauthorized construction would be removed on or after 10 days. It appears that Mr.Nahar then filed a

suit against the Cantonment Board for an injunction restraining it from demolishing the construction. An interim relief was initially granted but the suit was dismissed on 15 December 2004 for non

appearance of the plaintiff. It appears that thereafter the respondent no.1 who claims to have purchased 2 shops in the building filed another suit, bearing RCS No.548 of 2010, for an injunction restraining the Cantonment Board from demolishing his shops. By an order dated 4 May 2010, the trial Court dismissed

the application for interim injunction. However, an appeal filed by the respondent was allowed by the District Court by an order

dated 18 June 2010. The appellate Court granted an injunction restraining the Cantonment Board from demolishing the suit shops

till the disposal of the suit. That order is impugned in this petition.

3. The case of the respondent is that his father had purchased the suit shops from the promoter/developer by an agreement dated 29 May 1997 executed under the provisions of Maharashtra

Ownership Flats Act, 1963. On death of his father Motilal on 29

July 2008, the respondent had inherited the suit shops and was the owner thereof. He was carrying on business in the suit shops for

more than 10 years since the death of his father. No notice whatsoever was served either on him or his father and the Cantonment Board has no authority to demolish the suit shops

without notice to him.

4. Mr.Presswalla, learned counsel for the petitioner submitted

that at the time when the notice u/s.185 of the Cantonments Act 1924 was issued, the respondent or his father was not the owner of the shop and therefore, it was not necessary to issue any notice

to them. He submitted that on the date of the notice, building was under construction and therefore also, it was not necessary to issue notice to the respondent or his father who might have purchased the suit shops from the promoter. The notice issued only to the promoter was valid and no injunction could be granted restraining

the Cantonment Board from demolishing the construction which was carried out unauthorisedly after expiry of the building

permission.

5. The notice u/s.185 was preceded by a letter dated 31 May 1999 addressed to Mr.Nahar. The letter states that the site was

inspected by officers of the Cantonment Board and it was noticed that the construction of RCC frame structure for basement and ground floor area was completed and the work of casting of the

RCC columns on the first floor was in progress. The notice u/s.185

also mentions that construction of RCC frame structures for basement and ground floor area admeasuring 46' x 19.06 was

completed and the work of casting of the RCC columns on the first floor was in progress. From the letter dated 31 May 2009 and the notice u/s.185 dated 7 June 1999, it appears that the work of

construction of the basement and ground floor was substantially

completed when the notice was issued. Prior to that, the promoter had agreed to sell the suit shops to the father of the respondent by

an agreement dated 29 May 1997. The question therefore that arises for my consideration is whether it was necessary to issue notice of demolition to the respondent.

6. In Commissioner of Income Tax Vs. Fazalbhoy Investment Co.Pvt Ltd, the Division Bench of this Court had an occasion to consider who is an owner of the flats in a building where the building was constructed by a developer after entering into an

agreement of sale with the flat holders. Therein, though the flat purchasers had executed the agreement of purchase and had even

received the possession the sale deeds were not executed in their favour. Consequently, the Income Tax Department had sought to

add the income from "house property" in the income of the developers/owners of the land and not in the hand of the flat

purchasers. A Division Bench of this Court held that in India, the concept of dual ownership was well recognised and when a building or a flat was constructed by a promoter or developer after

entering into an agreement of sale with the flat purchasers with

the help of or using the money of the flat purchasers, the flat purchasers would be the owners of the respective flats. In the

present case also, father of respondent entered into an agreement of purchase with the promoter on 29 May 1997 long prior to the construction of the suit shops. Prima facie, the suit shop appears

to have been constructed by using the money paid by the father of

the respondent 1. The father of the respondent was, therefore, prima facie the owner of the suit shops. Hence, in my view,

respondent was entitled to a notice u/s.185 of the Cantonment's Act, before commencing demolition of the suit shops.

7. Section 185 of the Cantonment Board Act reads thus:

Power to stop erection or re-erection or to demolish (1) A Board may, at any time, by notice in writing, direct the owner, lessee or occupier of any

land in the cantonment to stop the erection or re-

erection of a building in any case in which the Board

considers that such erection or re-erection is an offence under section 184 and may in any such case

or in any other case in which the Board considers that the erection or re-erection of a building is an

offence under section 184, within twelve months of the completion of such erection or re-erection, in like manner direct the alteration or demolition, as it

thinks necessary, of the building, or any part thereof,

so erected or re-erected:

Provided that the Board may, instead of requiring the

alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable:

Provided further that the Board shall not, without

the previous concurrence of the Officer commanding-in-Chief, the Command, accept any

sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board.

     (2)    A   Board   shall   by   notice   in   writing   direct   the 
     owner,     lessee   or   occupier   of   any   land   in   the 

cantonment to stop the erection or re-erection of a building in any case in which the order under section

181 sanctioning the erection or re-erection has been suspended by the Officer Commanding-in-Chief, the

Command, under clause (b) of sub-section (1) of section 52, and shall in any such case in like manner

direct the demolition or alteration, as the case may be, of the building or any part thereof so erected or

re-erected where the Officer Commanding-in-Chief, the Command, thereafter directs that the order of the Board sanctioning the erection or re-erection of

the building shall not be carried into effect or shall

be carried into effect with modifications specified by him:

Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or

alteration of any building which has been erected or

re-erected prior to the date on which the order of the Officer Commanding-in-Chief, the Command, has

been communicated to him.

8. When a construction is being done unauthorisedly on any

land in a Cantonment area the Cantonment Board by a notice in writing is empowered to direct the owner, the lessee or the occupier of the land to stop the erection or re-erection. Since the respondent was prima facie the owner, the respondent Cantonment Board was required to issue a notice to him. It may

also be noted that by the notice u/s.185, the respondent Cantonment Board had directed the promoter to stop further

construction on the land. The construction of the basement and ground floor was completed before the notice and casting of the

RCC column on the first floor was in progress. Admittedly, the building plans were passed on 27 November 1996 and even as per

the notice of the Cantonment Board, plans were valid till 5 November 1998. The construction of the basement and ground floor which was completed prior to 5 November 1998 could not

therefore be termed as an illegal construction as it was made in

accordance with the sanctioned plans which were in force atleast till 5 November 1998 on the own admission of the Cantonment

Board. The construction which was made prior to 5 November 1998 therefore cannot be demolished by the Cantonment Board.

9. In any event, the respondent had made out a prima facie

case against the demolition of the suit shops on the ground floor. At the interim stage and till the evidence is adduced, it cannot be

said that the shops were not completed till 5 November 1998. The Officer who had inspected the suit premises and submitted a report would be required to be examined as a witness in the Court

to state what was the stage of construction and his evidence would be subject to the cross examination. Until this is done, it would not be appropriate to hold, at an interim stage, that the construction of the shops completed till 5 November 1998 was illegal and to refuse the interim injunction. This is especially so

when on the averment of the respondent, he is carrying on business therein for more than 10 years after the death of his

father.

10. Mr. Presswalla submitted that notice u/s.185 is required to be given only to the owner of the land and not to the owner of the

structure. The contention would be required to be examined at trial. The District Court did not commit any error in law in protecting the suit shops till the final hearing and disposal of the

suit.

10. No case for interference in exercise of an extra ordinary

jurisdiction u/s.227 of the Constitution of India is made out. Writ Petition is accordingly rejected.

(D.G.KARNIK, J)