Rajesh Aggarwal vs Union Of India & Ors.
2010 Latest Caselaw 872 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) No. 10156 of 2009

                                              Reserved on: January 27th, 2010
                                              Decision on: February 16th, 2010

 RAJESH AGARWAL                                           ..... Petitioner
                              Through: Mr. Arvind K. Nigam, Senior Advocate
                              with Mr. R. Sudhinder and Mr. Shivram,
                              Advocates.

                  versus


 UNION OF INDIA & ORS.                         ..... Respondents
                    Through: Ms. Manisha Dhir with
                    Mr. K.P.S. Kohli, Advocate for R-1 & R-2.
                    Ms. Rekha Pandey with
                    Ms. Rashmi Pandey, Advocate for R-5 & R-6.


         CORAM: HON'BLE MR. JUSTICE S. MURALIDHAR

         1.       Whether Reporters of local papers may be
                  allowed to see the judgment?                    No
         2.       To be referred to the Reporter or not?          Yes
         3.       Whether the judgment should be reported         Yes
                  in Digest?


                              JUDGMENT

W.P.(C) No. 10156 of 2009 & CM No.8613 of 2009 (for direction)

1. The challenge in this petition is to an order dated 25th February 2009 passed

by the Central Government in exercise of its power to review under Section

57 of the Cantonments Act, 2006 („Act‟) whereby the decision dated 4th

January 2008 of the Cantonment Board („Board‟) sanctioning the plans

submitted by the Petitioner in respect of the Bungalow No. 167, Chappel

Street, Meerut Cantonment (hereinafter „the property‟) was set aside.

2. The Petitioner inherited the property in question which belonged originally W.P.(C) No. 10156 of 2009 page 1 of 12 to his grandfather. In 1932 the Petitioner‟s grandfather had constructed a

cinema hall and shops in the property after obtaining sanction from the

Cantonment authorities. The cinema hall, known as Palace Cinema,

underwent additions and alterations from time to time. It is claimed that the

usage of the property was always commercial. Resolutions dated 15 th January

1952 and 14th June 1997 of the Board recorded that the Petitioner‟s

grandfather had made applications for permission to carry out additions and

alterations to the property. Inter alia it was recorded that the property which

was held on "old grant terms" was located "within the bazaar area." This

assumes significance because it is now sought to be contended by the

Respondents that the area in question was always residential and, therefore,

no cinema hall can be constructed thereon.

3. The Petitioner submitted a building application with a notice under Section

179 of the Cantonments Act, 1924 on 15th February 2003 to the Board

proposing the demolition of the 70-year old structure and erecting new

structures in its place. The building plans were returned to the Petitioner by

the Chief Executive Officer („CEO‟) of the Board (Respondent No.5 herein)

asking him to get the mutation done in his favour before submitting the plan.

The Petitioner on 22nd February 2006 applied for correction of the entries in

the general land register („GLR‟) to show the property as commercial i.e.

shops and cinemas instead of bungalows as the property had in fact been used

for a commercial purpose for over 70 years.

4. On 27th February 2006 the Principal Director Defence Estates, Lucknow

Cantonment (Respondent No.4 herein) wrote to the Director General Defence

W.P.(C) No. 10156 of 2009 page 2 of 12 Estates, Government of India („Respondent No.3 herein) forwarding a letter

dated 20th March 2006 of the CEO of the Board regarding the Board‟s

proposal for regularization of the change of purpose relating to the property.

In the said letter, after presenting the history, it was mentioned in paragraph 5

that "the change of purpose has already been approved by the Board as plans

for shops and Cinema Hall were sanctioned by the Board vide its CBR No.

01, dated 5th February 1952 and CBR No. 1(19), dated 14th June 1957

respectively." Copies of these Resolutions were enclosed with the letter. The

CEO, Meerut had further reported that the cinema hall which existed at the

site was not in a running condition but that the shops therein were still

operational. It was stated in the letter that in terms of the instructions issued

on 17th May 2000 by the Respondent No.3 and those dated 16th November

2002 of the Union of India, Ministry of Defence („MOD‟) Respondent No.1

herein, the building plan submitted by the Petitioner could not be approved by

the Board without prior approval of Respondent No.1 since the change of

purpose was involved. It was stated that "since the Cantonment Board had

sanctioned the plan on 14th June 1957 for granting permission to use the

premises for purposes other than residential before the said instructions were

issued by the GOI, MOD (DGDE), the change of purpose from Bungalow to

Cinema Hall and Shops is required to be regularised." In the meanwhile on

7th August 2005 mutation was effected in the Petitioner‟s name in respect of

the property. It was mentioned therein that the Petitioner had "purchased the

building and not the land which belongs to the Government of India."

5. The petitioner, on 7th December 2007 again applied to Respondent No.5 by

giving a written statutory notice under Section 235 of the Cantonments Act,

W.P.(C) No. 10156 of 2009 page 3 of 12 2006 (which replaced the Cantonments Act, 1924). The said application was

considered by the Board and by its resolution dated 4 th January 2008 the plan

was sanctioned. However the no objection certificate („NOC‟) from the „fire

point of view‟ was asked to be obtained by the Petitioner from the Chief Fire

Officer. The Board required the Petitioner to deposit Rs.53,223/- towards

charges for sanctioning the building plan. The amount was paid by the

Petitioner on 16th January 2008 and the building plans were duly sanctioned

on that day.

6. On the basis of the sanctioned building plan, the Petitioner commenced

reconstruction and redevelopment of the property. The old structure was

demolished. In the second week of January 2009 the Petitioner was surprised

to come across a news item in the local newspaper that the sanctioned

building plans of the Petitioner had been put on hold by the Board by the

instructions of Respondent No.3. The Petitioner then made representations on

9th, 12th and 19th February to the senior official asking them a personal hearing

before any decision was taken. On 25th February 2009, Respondent No.3

informed Respondent No.5 (CEO of the Board) that the Government of India

had set aside the Resolution dated 4th January 2008 of the Board. Thereafter,

the Petitioner received a letter dated 16th March 2009 from the Board

informing him that the MOD had by its order dated 20 th February 2009 set

aside the Board‟s Resolution dated 4th January 2008. The letter also referred

to a Resolution dated 12th March 2009 of the Board whereby it was decided to

keep a strict watch to ensure that no unauthorised construction took place.

7. The said letter also referred to a letter dated 18th September 2008 of the

W.P.(C) No. 10156 of 2009 page 4 of 12 Board which according to the Petitioner was never received by him. After the

Petitioner made enquiries for the reasons for the sanction being set aside, it

was revealed that one Mr. Om Pal on 8th February 2009 sent a complaint to

Respondent No.3. The copy of the said complaint was furnished to the

Petitioner pursuant to an application made by him under the Right to

Information Act, 2005 („RTI act‟). Interestingly, in its letter dated 20th

February 2008, the Board informed Respondent No.4, inter alia, that no

person named Om Pal resided at the given address therefore the complaint

was bogus. Further on 5th March 2008, the Board wrote to Respondent No.4

stating that Respondent No.3 had spoken to the CEO of the Board and advised

him that sanction of a shop and cinema hall in the property did not constitute

any change of use of land as the Board had already sanctioned the building of

the cinema hall and shops more than 50 years ago. It was pointed out that the

Board was the competent authority to permit change of use of any land or

building and that in the instant case, the sanction accorded by the Board was

only a reiteration of the old sanction.

8. In the counter affidavit dated 20th February 2009 of the Respondents, three

reasons have been cited for cancelling the sanction accorded to the

Petitioner‟s building plan. The first is that the Board had sanctioned the

building plan without waiting for the response of the Central Government to

the proposal for amendment of GLR in respect of the property changing its

description from residential to that of shops and cinema theatre. Secondly, in

terms of the land policy dated 9th February 1995, the authorised floor space

was 37,650 sq. feet whereas the space approved by the Board was 57,383 sq.

feet comprising ground floor plus two floors. Thirdly, the regulations

W.P.(C) No. 10156 of 2009 page 5 of 12 concerning the cost of reconstruction of the building were not followed with

an underlying motive to commercialise the use of the Government land

contrary to the original grant terms. The response of the Petitioner is that the

property has always been used as a commercial property and taxes were also

paid on that basis for more than 50 years. The change of land use was

approved by the Board way back in 1957. Therefore, there was no need for

the Petitioner to apply afresh for recording the change of land use. Secondly,

under para 4.1A of the Building Bye-Laws which applied to buildings in the

notified civil areas and held on old grant terms the Board was permitted to

sanction additions and alterations. Moreover, as per the long standing

practice in Meerut Cantonment, the term "authorised floor space" has always

been interpreted as "authorised plinth area" with number of storeys as per the

building bye-laws i.e. ground plus two storeys. Bye-law 8 expressly provides

that the number of storeys should not exceed three. Thirdly, the cost

calculated was on floor area and not on plinth area and since the commercial

use of the land had already been tacitly approved by the Board. Consequently,

there was no basis for alleging that the Petitioner was commercialising the use

of land contrary to the original grand terms.

9. Mr. Arvind Nigam, learned Senior counsel appearing for the Petitioner

submitted that first and foremost the impugned order was passed by the

Respondent No.1 without even a show cause notice being issued to the

Petitioner. It is plainly a violation of the principles of natural justice. In fact,

the Petitioner had made three representations asking for a personal hearing

prior to the order being passed. These were ignored. Secondly, it is submitted

that reasons given for recalling the sanction of the building plan was

W.P.(C) No. 10156 of 2009 page 6 of 12 untenable both in law and facts. By a Resolution dated 28 th February 2007 the

Board had regularised the land use of the property as cinema/shop and this

Resolution had not been set aside by Respondent No.1. After the Petitioner‟s

building plans were duly sanctioned on 4th January 2008, he had demolished

the existing 70-year old structure and, therefore, had acted to his detriment on

the basis of the said decision which was valid. Consequently, Respondent

No.1 was estopped from reversing the said decision, that too on untenable

grounds.

10. Mr. Nigam, points out that the impugned order came to be passed only

because of an anonymous complaint by Om Pal Singh, a fictitious person. He

refers to the instructions dated 29th June 2009 of the Central Vigilance

Commission („CVC‟) which were reiterated on 31st January 2002 that no

investigation is to be commenced or action initiated on the basis of an

anonymous complaint. Since the very basis of the impugned order was an

anonymous complaint, it should be quashed. It is denied that the letter dated

18th September 2008 of the Board suspending the building plan was never

communicated to the Petitioner. Significantly, it does not find mention in the

reply dated 1st January 2009 of the Board to the show cause notice of

Respondent No.1.

11. Mr.Nigam contests the preliminary objection of the Respondents that an

appeal ought to have been filed against the Board‟s order dated 16th March

2009. It is submitted that the Board‟s order dated 16 th March 2009 is merely

consequential upon the order dated 20th February 2009 of the Respondent

No.1 which is challenged in the present petition. It is further submitted that in

W.P.(C) No. 10156 of 2009 page 7 of 12 terms of the Schedule 5 of the Act read with Section 340, the Appellate

Authority was the Principal Director and it is the same Principal Director who

sought sanction for regularisation from the Central Government. The

Principal Director was directly functioning under the Central Government,

therefore, an appeal to the Principal Director would be futile. Finally it is

submitted that the matter ought to be sent back to Respondent No.1 with a

direction to comply with the principles of natural justice. The Petitioner

should be heard and thereafter a reasoned order passed in accordance with law

within a time-bound schedule. Pending such determination the Petitioner

should be permitted to recommence construction on the basis of the earlier

approved plan at least to the permissible extent of 37,650 sq. ft.

12. A short reply has been filed on behalf of Respondents 5 and 6. A

preliminary objection is taken as to the maintainability of the petition on the

ground that the Petitioner has no locus to challenge the order dated 20th

February 2009 passed by Respondent No.1 which reviewed the decision of

the Board dated 4th January 2008. An objection is taken to the maintainability

of the writ petition even on the basis of the territorial jurisdiction of this Court

since the offices of the Respondents 5 and 6 as well as the property in

question are located in Meerut. It is contended that a letter dated 18th

September 2008 had been written to the Petitioner asking him not to

commence any building activity of any kind on the basis of the sanction

granted by the Board since that had been reviewed. It is claimed that although

the letter was sought to be served „by hand‟ but on reaching the suit property

it was learnt that the Petitioner was living in Delhi and since on enquiry no

other address of the Petitioner could be found, the said letter dated 18 th

W.P.(C) No. 10156 of 2009 page 8 of 12 September 2008 was pasted on the main gate of the suit premises. No

parawise reply was given to the petition to deny some of the facts mentioned

therein and which have been set out hereinbefore.

13. Ms. Manisha Dhir, learned counsel appearing for the Respondents

reiterated that the Petitioner ought to have filed an appeal to challenge the

decision of the Board instead of filing the present writ petition. She referred

to Clause 3.2 of the policy dated 9th February 1995 of the MOD regarding

addition, alteration, renovation or reconstruction of the private buildings in

Cantonments which stipulated that "there shall be no change of purpose in the

proposed construction or in the use of building." She points out that the older

building was constructed with ground floor only whereas the new plan is for

57,283 sq. feet. The policy also indicated that the cost of reconstruction of

the building "shall not exceed the cost of construction as per the approved

plinth area rates as per the MESSSR." The said stipulation was not complied

with by the Board in sanctioning the plan. Ms. Dhir claims that a show cause

notice had been issued by the MoD to Respondents 5 and 6 on 21 st November

2008 but no reply had been received from the Board within the time stipulated

therein and, therefore, the MoD passed the order dated 20 th February 2009 in

terms of Section 57 of the Act. It is submitted that the Petitioner has not been

singled out as steps have also been taken against Bungalow Nos. 176, 182 and

284 which were found to have unauthorised construction.

14. The objections as to the territorial jurisdiction of this court to entertain this

petition require to be dealt with first. The impugned decision dated 20th

February 2009 was obviously taken by Respondent No.1 in Delhi. Therefore a

W.P.(C) No. 10156 of 2009 page 9 of 12 substantial part of the cause of action has arisen in Delhi. Notwithstanding

that the property and Respondents 5 and 6 are located in Meerut, it cannot be

said that this Court has no jurisdiction to deal with the subject matter of the

petition. The preliminary objection on this ground is, therefore, rejected.

15. The second objection is about the availability of a remedy by way of an

appeal under Section 238 read with Section 340 of the Cantonments Act,

2006. Section 340 in turn refers to Schedule V under which an appeal against

the decision of the Board lies to the Principal Director. In the instant case, the

decision of the Board itself is merely consequential upon the decision dated

20th February 2009 of Respondent No.1. The Board has not independently

applied its mind to arrive at the decision to withdraw the sanction granted to

the Petitioner‟s building plan. The Principal Director, in fact, is an officer

who himself wrote to the Respondent No.1 seeking its prior approval for

change of use. There can be no doubt that the Principal Director acts under

the control and authority of Respondent No.1. Where the decision dated 20th

February 2009 of Respondent No.1 is sought to be challenged, an appeal to

the Principal Director in terms of Section 340 of the Cantonments Act, 2006

would be futile. Therefore, there is no merit in this objection of the

Respondents either.

16. The principal ground of challenge in this petition is that the impugned

order dated 20th February 2009 has been passed without even as much as a

show cause notice being issued to the Petitioner. There is no defence to this

ground at all. It is not denied that no such show cause notice was issued and

that the Petitioner was not given any opportunity of being heard. It is not as if

W.P.(C) No. 10156 of 2009 page 10 of 12 Respondent No.1 was unaware that the Petitioner was going to be adversely

affected by the decision to cancel the sanctioned building plan. The Petitioner

himself made representations on three dates in February 2009 prior to the

decision being taken by Respondent No.1. The Respondents did not care to

reply to any of these letters.

17. Inasmuch as the impugned order dated 20th February 2009 passed by

Respondent No.1 has adversely affected the Petitioner, the decision could not

have been made without affording him an opportunity of being heard. It is a

well-settled that an order having adverse civil consequences cannot be made

by a statutory authority without affording the person affected an opportunity

of being heard. On this ground alone, the impugned order dated 20th February

2009 of Respondent No.1 cannot be countenanced and is hereby set aside.

Consequently, the further orders of the Board communicating the said

decision to the Petitioner are hereby also set aside.

18. The next question is whether this Court itself should deal with the merits

of the contentions of the Petitioner which have been recorded hereinbefore.

The better course is for the Respondent No.1 to consider each of the above

points, after giving the Petitioner a hearing and then pass a reasoned order in

accordance with law. Every point urged in this petition and before this Court

as noted hereinbefore will be considered by Respondent No.1 and it will give

a reasoned decision thereon. Consequently, this Court refrains from opining

on any of the contentions on merits of either parties at this stage. These are

left open to be agitated by the petitioner, in accordance with law, if aggrieved

by the decision of Respondent No.1. As regards the prayer of the Petitioner to

W.P.(C) No. 10156 of 2009 page 11 of 12 be permitted to construct up to 37,650 sq. ft. pending the decision afresh of

Respondent No.1, it is open to Respondent No.1 to consider take a decision

thereon in accordance with law. This point is also left open to be agitated by

the Petitioner if aggrieved by the decision of Respondent No.1. The

petitioner‟s claim for compensation for the loss suffered on account of not

being able to proceed with the construction of the new building in accordance

with the sanctioned building plan is also left open to be agitated by him at the

appropriate stage in accordance with law.

19. It is directed that within a period of two weeks from today, Respondent

No.1 will communicate to the Petitioner the date on which it proposes to give

him a hearing. It will be open to the Petitioner by that day to file any further

documents or statement that he wishes to. Within four weeks of the hearing,

the Respondent No.1 will pass a reasoned order and communicate it to the

Petitioner within a period of one week thereafter. The petitioner is at liberty,

if aggrieved by the decision of Respondent No.1, to seek further remedies in

accordance with law.

20. The petition is accordingly allowed with costs of Rs.5,000/- which will be

paid by Respondent No.1 to the Petitioner within a period of four weeks from

today. The application is disposed of.

S. MURALIDHAR, J.

     th
16 FEBRUARY 2010
dn




W.P.(C) No. 10156 of 2009                                           page 12 of 12