Sh. Anil Mittar vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1762 Del

JUDGMENT

Anil Kumar, J.

1. With the consent of the parties the matter is taken up for final hearing. learned Counsel for the parties contend that no further affidavits are to be filed.

2. The petitioner is an elected ex-member of Delhi Cantonment Board and is a resident of Delhi Cantt.

3. The petitioner has sought quashing of notification dated 23.8.2005 extending the term of the board up to 30.6.2006 and quashing of notification dated 25.10.2005 nominating respondent No. 3, Sh. Satish Kumar as a civilian member of Delhi Cantonment Board. The petitioner has also sought direction to respondents to hold election to constitute the Cantonment Board in terms of Section 13 of the Cantonment Act, 1924.

4. Brief facts to comprehend the controversies between the parties are that the petitioner is aggrieved by not holding the election under Section 13 of the Cantonment Act, 1924. The petitioner had been an elected member of the Delhi Cantonment Board.

5. According to the petitioner the administration of Cantonment is governed by Cantonments Act, 1924 and in terms of Section 10 every Cantonment is to have a Cantonment Board, which is to be constituted in terms of Section 13 or 14 of the Cantonments Act, 1924. Under Section 14 of the Cantonments Act, 1924 under special circumstances the Central Government is empowered to constitute a varied Board consisting of three persons out of which one member is civilian duly nominated by the Central Government in consultation with the officer Commanding-in-Chief.

6. Section 14 of the Delhi Cantonment Act, 1924 authorizes Central Government to have a varied board in special circumstances. The said section is as under:

14:- Power to vary Constitution of Boards in special circumstances:

(1) Not with standing anything contained in Section 13, if the Central Government is satisfied-

a) that, by reason of military operations, it is necessary, or

b) that, for the administration of the cantonment, it is desirable, to vary the constitution of the Board in any cantonment under this section, the Central Government may, by notification in the official gazette, make a declaration to that effect.

(2) Upon the making of the declaration under Sub-section (1), the Board in the cantonment shall consist of the following members, namely:

a) the Officer Commanding the station;

b) one military officer nominated by name by the officer Commanding the station by order in writing;

c) one member, not being a person in the service of the Government, nominated by the Central Government in consultation with the Officer Commanding-in-Chief, the Command.

(3) Every nomination of a member of a Board constituted under the section, and every vacancy in the membership thereof, shall be notified by the Central Government in the Official Gazette.

(4) The term of office of a Board constituted by a declaration under Sub-section (1) shall not ordinarily extend beyond one year; Provided that the Central Government may from time to time, by a like declaration, extend the term of office of such a Board by any period not exceeding one year at a time : Provided also that the Central Government shall forthwith direct that the term of office of such a Board shall cease if, in the opinion of the Central Government, the reasons stated in the declaration whereby such Board was constituted, or its term of office was extended, have ceased to exist.

(5) When the term of office of a Board constituted under this section has expired or ceased, the Board shall be replaced by the former Board which, but for the declaration under Sub-Section (1) would have continued to hold officer or, if the term of office of such former Board has expired, by a Board constituted under Section 13.

7. Ordinarily the constitution of the Cantonment Board is of 14 members out of which 7 members are elected under Section 13(3)(f) of the Act. Section 13 of the Delhi Cantonment Act, 1924 is as under:

13: Constitution of Cantonment Boards:

(1) Cantonments shall be divided into three classes, namely:

(i) Class I Cantonments, in which the civil population exceeds ten thousand;

(ii) Class II Cantonments, in which the civil population exceeds two thousand five hundred but does not exceed ten thousand; and

(iii) Class III Cantonments, in which the civil population does not exceed two thousand five hundred.

(2) For the purpose of Sub-section (1), the civil population shall be calculated in accordance with the latest official census, or, if the Central Government, by general or special order, so directs, in accordance with a special census taken for the purpose.

(3) In Class I Cantonments, the Board shall consist of the following members, namely:

a) The Officer Commanding the station or, if the Central Government so directs in respect of any cantonment, such other military officer as may be nominated in his place by the Officer Commanding-in-Chief, the Command;

b) an Executive Magistrate nominated by the District Magistrate;

c) the Health Officer;

d) the Executive Engineer;

e) four military officers nominated by name by the Officer Commanding the station by order in writing;

f) seven members elected under this Act.

(4) In Class II Cantonments, the Board shall consist of the following members, namely:

a) the Officer Commanding the station or, if the Central Government so directs in respect of any cantonment, such other military officer as may be nominated in his place by the Officer Commanding-in-Chief, the Command;

b) an Executive Magistrate nominated by the District Magistrate;

c) the Health Officer;

d) the Executive Engineer;

e) (i) in cantonments of which the civil population exceeds seven thousand five hundred, three military officers,

(ii) in cantonments of which the civil population exceeds five thousand, but does not exceed seven thousand five hundred, two military officers,

(iii) in cantonment of which the civil population does not exceed five thousand, one military officer, nominated by name by the Officer Commanding the station by order in writing;

f) such number of members elected under this Act as in equal to the number of members constituted or nominated by or under Clauses (b) to (e).

(5) In Class III Cantonments, the Board shall consist of the following members, namely:

a) the Officer Commanding the Station, or if the Central Government so directs in respect of any cantonment, such other military officer as may be nominated in his place by the Officer Commanding-in-Chief, the Command;

b) one military officer nominated by name by the Officer Commanding the station by order in writing;

c) one member elected under this Act.

(6) The Officer Commanding the station may, if he thinks fit, with the sanction of the Officer Commanding-in-Chief, the Command, nominate in place of any military officer whom he is empowered to nominate under Clause (e) of Sub-section (3), Clause (e) of Sub-section (4) or Clause (b) of Sub-section (5), any person, whether in the service of the Government or not, who is ordinarily resident in the cantonment or in the vicinity thereof.

(7) Every election or nomination of a member of a Board and every vacancy in the membership thereof shall be notified by the Central Government in the Official Gazette.

8. The petitioner asserted that in the year 1997 a Board was duly constituted under Section 13 of the Cantonment Act, however, the constitution was varied under Section 14(1) in March, 2003. The validity of the varied board was extended time and again and vide notification dated 3.3.2004 it was extended for a period of one year up to 2/3.3.2005. Later by subsequent notification dated 6.4.2005 the term of the varied board has been extended with effect from 3.3.2005 for a period of six months and after the constitution of varied board no civilian member was nominated till 25.10.2005. In these circumstances the petitioner sought quashing of notification dated 23.8.2005 and 25.10.2005 being malafide, illegal and violative of the directions of the Court order dated 21.9.2005 in W.P(C) No.8184/2005. The notifications were also challenged on the ground that the term of the board could not be extended retrospectively and notification dated 25.10.2005 could not be passed in absence of a fresh declaration under Section 14(1)(b) of the Act.

9. The petitioner has also relied on the order dated 28.11.2005 in LPA No.2244/2005 J. Pratap Reddy v. Union of India and Ors. whereby the notification issued under Section 14 retrospectively was held to be valid, however, the respondents were directed to constitute a Board under Section 13 of the Cantonment Act, 1924 as expeditiously as possible and not later than six months from the date of order dated 28.11.2005 and the respondents were directed to conclude the election of seven members under Section (f) of Section 13(3) of the Act.

10. The petition is opposed by the respondents. Respondent Nos. 1 and 2 filed the counter affidavit of Mr. R.P. Singh, Cantonment executive officer who contended that the petitioners have filed the petition on the basis of Judgment dated 21.9.2005 passed by the Court in W.P(C) No.8184/2005. The said order was challenged in a letters Patent Appeal which allowed the appeal of the respondents and the Judgment dated 21.9.2005 has been set aside. The dismissal of the petition was also sought on the ground that the constitution of the Board was varied in terms of Section 14(1) of the Cantonment Act, 1924 in March, 2003 and the term of the varied board has been extended from time to time. The petition is also contested on the ground that conducting of the election shall incur expenses and in case another Act, the Cantonment Act, 2006 is notified then the Board will again have to incur the financial as well as administrative burden. It was also contended that since the varied board consists of one President, one nominee of the military personnel and one civilian member, therefore, there is a proper representation of civilian public and no prejudice is to be caused to them and in the circumstances dismissal of the writ petition was sought.

11. The writ petition is also contested by respondent No. 3, Sh. Satish Kumar contending inter-alia that the petitioner has no vested right to contest the election or vote in the election. It was contended that the petition has been filed only to challenge the nomination of the respondent No. 3.

12. The averments made by the respondents were denied in the joinders filed by the petitioner to the counter affidavits of respondent Nos. 1 to 3.

13. I have heard the learned Counsel for the parties at length andhave also perused the petition, counter affidavits and the rejoinder affidavits. The learned senior counsel for the petitioner, Mr. R.K. Anand contended that he restricts the relief of the petitioner to prayer (iv) only in the petition whereby direction has been prayed against respondent to hold the election to constitute the Cantonment Board in terms of Section 13 of the Cantonment Act, 1924. Petitioner has placed reliance on the Judgment of the Division Bench of this Court in LPA No.2244/2005 decided on 28.11.2005 titled J. Pratap Reddy v. Union of India and Ors.

14. This is not disputed that a writ petition challenging the notification extending the term of the Cantonment Board, Secunderabad retrospectively was issued after the expiry of period for which the Board was constituted. The writ petition was allowed and the notification extending the term of the varied Board retrospectively was set aside. However, in the Letters Patent Appeal the appeal was allowed holding that there cannot be any gap in the administration of Cantonment Board and as holding election of seven members under Section 13(3) Sub-section (f) needs some time and during this time there cannot be any Cantonment Board at all. It was thus held that such an interpretation is to be eschewed and the notifications were upheld. Applying the same reasoning to the present notifications, it cannot be held that the notifications dated 23.8.2005 and 25.10.2005 are not vaild. In any case this prayer regarding quashing of these notifications has not been pressed by the learned Counsel for the petitioner.

15. The point for determination therefore, left is whether the respondents are liable to constitute the Cantonment Board by holding election of seven members as contemplated under Sub-clause (f) of Section 13(3) of the Act.

16. The plea of the respondent is that holding of election will incur expenses and in case the new Act, the Cantonment Act, 2006 shall be notified, the respondent shall again have to conduct election in terms of the provisions of the new Act and will have to incur substantial expenses.

17. The learned Counsel for the respondents were asked as to within how much time or till what date the new Act, the Cantonment Act, 2006 shall be notified. The learned Counsel for the respondents were unable to give any time frame within which the new Act may be notified so as to be applicable.

18. If that be so the respondents cannot deny their liability to conduct the election of seven members in terms of Sub-clause (f) of Section 13(3) of the Act in the facts and circumstances. Till the new act is notified, the respondents can not deny constitution of cantonment board in terms of Section 13 of the Cantonment Act, 1924. The Division Bench of this Court in Jai Pratap Reddy (Supra) had also held that a Board under Section 14 has to be created only in exceptional circumstances whereas in normal circumstances a Board under Section 13 of the Cantonment Act, 1924 must be constituted. No such exceptional circumstances have neither been pleaded nor contended during the arguments so as to avoid the liability of the respondents to constitute a Board as contemplated under Section 13 of the Cantonment Act, 1924. The fact that new cantonment act has been passed and not notified cannot also be an exceptional circumstance. The relevant observations of the Division Bench in the above-noted case is as under:

38: However, we cannot, but express our regret that a Board under Section 13 of the Act has not been created for Secunderabad since the year 2000. A Board under Section 14 is to be created only in exceptional circumstances, whereas in normal circumstances a Board under Section 13 must be constituted. It is regrettable that for five years no Board under Section 13(3) has been constituted by the authorities.

39: In the circumstances we direct that a Board under Section 13(3) of the Act be constituted for Secunderabad Cantonment as expeditiously as possiblepreferably not later than six months from today. Election of seven members under Sub-clause (f) of Section 13(3) of the Act should be concluded before this period.

19. Therefore, considering the facts and circumstances and the law laid down by this Court the rule is made absolute and the respondents are directed to constitute the Cantonment Board as contemplated under Section 13(3) and Sub-clause (f) of the Cantonment Act, 1924 as expeditiously as possible and preferably not later than six months from the date of this order. The respondents are also directed to hold the elections of seven members under Sub-clause (f) of Section 13(3) of the Act before the expiry of this period. With these observations the writ petition is disposed of and the parties are directed to bear their own cost.