Madhya Pradesh High Court
Uma Devi Kapoor vs Union Of India on 4 January, 2023
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 4 th OF JANUARY, 2023
WRIT PETITION No. 17436 of 2020
BETWEEN:-
UMA DEVI KAPOOR, W/O LATE SHRI SANTOSH KAPOOR, AGED
ABOUT 68 YEARS, 81 CANTT, JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PANKAJ DUBEY AND SHRI AKSHAY KHANDELWAL - ADVOCATES)
AND
1. UNION OF INDIA, THROUGH SECRETARY, DEFENSE, CGO
COMPLEX, NEW DELHI (DELHI)
2. CANTONMENT BOARD, THROUGH EXECUTIVE OFFICER,
JABALPUR (MADHYA PRADESH)
3. THE DIRECTOR, DEFENSE ESTATES, CENTRAL
CANTONMENT, LUCKNOW (UTTAR PRADESH)
4. DEFENSE ESTATE OFFICER CANTT. JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI VIKRAM SINGH - ADVOCATE FOR RESPONDENT NO.2)
T h i s petition coming on for orders this day, Hon'ble Shri Justice Ravi
Malimath, Chief Justice passed the following:
ORDER
Signature Not Verified
This petition is filed seeking the following reliefs:-
SAN
Digitally signed by PREM SHANKAR
"1. To direct the respondent Cantonment Board: to comply with the order
MISHRA
Date: 2023.01.05 17:12:21 IST dated 16.07.2007 passed in W.A. No.115/2006 (common order) 'Zia Banu
Malak versus Union of India and others'
2. To issue a writ quashing the impugned action of the respondent CEO
and the board resolution dated 19.07.2018.
3. To grant any other relief to grant the cost."
2. In terms of the order dated 16.07.2007, passed in W.A. No.115 of 2006, the
Hon'ble Division Bench held in paragraphs 9, 10, 11 and 12 as follows:-
"9. Mr. Haq and Mr. Manoj Sharma, learned counsel submitted that even
bereft of status and sans title the Cantonment Board cannot demolish the
structure without taking recourse to appropriate procedure of law. Mr. L.S.
Singh, learned senior counsel submitted that Salimbhai has moved an
application for mutation before the Defence Estate Officer for the correction
of records in the General Land Records on the basis of the judgment passed
by the Civil Court which has been attained finality having been sustained by
the Apex Court. On a question posed to Mr. Nair, learned counsel whether the
Cantonment Board would demolish the construction without following due
procedure of law, Mr. Nair very fairly stated that the same cannot be done as
the demolition can take place only after following due process of law.
10. In view of the aforesaid we would only modify the order of the learned
single Judge to the extent that the structure that stands on the disputed land
whoever may have the right, title and interest will not be demolished without
following due procedure as contemplated under the 1924 Act. The appellants
may establish their title by approaching the appropriate legal forum.
11. At this juncture we may note that the Cantonment Act, 2006 has been
brought into force. Section 360 of the Act deals with repeals and savings. By
virtue of the aforesaid provision there can be no shadow of doubt that the
proceeding can continue. The appellants would be at liberty to file their show
cause within a period of 8 weeks and after affording an opportunity of
hearing the Cantonment Board can take appropriate action. By taking such
action the Board, needless to emphasize can take into consideration all
subsequent facts. We may further add that as some rights have accrued in
favour of the interveners with regard to the suit property they shall be heard
and as undertaken by Mr. Nair, learned counsel it shall fix a date which shall
be notified to all concerned.
12. Till the matter is finalized by the Cantonment Board status quo
existing as on today shall be maintained. Needless to emphasize the Board
shall pass a reasoned and cogent order taking into consideration all the
aspects."
Signature Not Verified
SAN
3. Thereafter the matter was moved before the Cantonment Board. By the resolution
dated 19.07.2018, the application of the petitioner for compounding was rejected. It was
Digitally signed by PREM SHANKAR
MISHRA
Date: 2023.01.05 17:12:21 IST
considered by a detailed order while coming to the conclusion that it would not be
correct to compound the unauthorized construction. Thereafter the instant writ petition is
filed after a lapse of two years.
4. So far as the first prayer with regard to directing the respondent - Cantonment
Board to comply with the order passed by the Division Bench of this Court is
concerned, we do not think it is appropriate for this Court to pass any orders on the
same. Even otherwise, what was observed by the learned Division Bench therein, is only
to the effect that without following the due procedure of law, the demolition cannot take
place. Therefore, we fail to understand as to how such an order could be sought to be
implemented by such a prayer. Hence, the plea of the petitioner, for the first prayer, is
rejected.
5.(a) The second prayer is for issuance of a writ to quash the impugned action of
respondent - CEO and the Board resolution dated 19.07.2018.
(b) We have considered the Board resolution. The prayer indicates that the impugned
action of the respondent - CEO requires to be quashed. We do not find any action of the
respondent - CEO. It is only the Board resolution that is on record. In terms of the Board
resolution it was held as follows:-
"The Chief Executive Officer is of considered opinion that
applicants/HOR's has violated terms of the building sanction by not
depositing complete sanction fee to this office as well as suppressed above
mentioned material facts regarding order passed by Hon'ble Supreme Court
of India on issue of title of property bearing B.No.33 Sy. No.132. The
applicants/HOR's is also suppressed this material facts that all they have
applied before District Judge Nagpur for deleting the entries of property in
question from register of trust/Waqf properties under which the property in
question is recorded as Mehdi Bagh Waqf Property. Hence it will not be
correct to compound the unauthorised construction erected by
applicants/HOR's because if the competent court would deny the title of
applicant/HOR's they may claim compensation for sanctioned construction
from the Board."
Signature Not Verified
SAN
(c) The finding recorded by the Board is based on facts. It is narrated therein that with
Digitally signed by PREM SHANKAR
MISHRA
Date: 2023.01.05 17:12:21 IST
regard to title there has been suppression of material facts even including the order
passed by the Hon'ble Supreme Court on the issue of title of the property. There has also
been suppression by the applicants therein that they have applied before the District
Judge, Nagpur for deleting the entries of the property in question which was shown to
stand in the name of "Mehdi Bagh Waqf Property". Therefore, when there is a title
dispute, it would not be correct to compound the unauthorised construction in view of
the fact that in case the competent court would deny the title of the applicants, they are
always entitled to claim compensation for the sanctioned construction from the Board.
6. Under these circumstances, we do not find any ground to entertain this petition. The
matter is pending consideration before the Waqf Tribunal at Nagpur. Until and unless the
title is decided, the question of compounding or any other matter does not arise for
consideration. Even the questions of title have also been considered in the series of
orders that have already been passed. In these circumstances, we are of the view that the
petition is frivolous and lacks any basic material. There is no question of compounding
when the title itself is in dispute.
7. Hence, for all these reasons, we do not find any ground to entertain this petition.
8. Consequently, the petition being devoid of merit, is dismissed.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
psm
Signature Not Verified
SAN
Digitally signed by PREM SHANKAR
MISHRA
Date: 2023.01.05 17:12:21 IST
