Telangana High Court

Shri.M.Ashok vs The Sccunderabad Cantonment Board on 2 May, 2025

     THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

         CITY CIVIL COURT APPEAL No.221 OF 2019

JUDGMENT:

This is an appeal filed by the appellants, being aggrieved

by the judgment and decree, dated 26.10.2018 passed in

O.S.No.117 of 2012 by the learned I Additional Chief Judge, City

Civil Court, Secunderabad (for short "the trial Court").

2. The appellants herein are the plaintiffs and the respondent

is the defendant before the trial Court. The parties herein are

referred to as they were arrayed in the suit before the trial Court

for the sake of convenience and clarity.

3. The case of the plaintiffs before the trial Court is that

plaintiffs have entered into a Development Agreement - cum -

Irrevocable General Power of Attorney in favour of M/s.Maha

Laxmi Homes, represented by its proprietor Sri P.Srinivas in

respect of plot No.26, survey Nos.67 and 69 admeasuring 550

Sq.yards situated at LIC Colony, Boosareddyguda of Bholakpur

village, Secunderabad Cantonment vide document No.701 of

2011 dated 27.05.2011. It is further averred that there was an

error in the said development agreement and thus they got a

rectification deed registered vide document No.768 of 2011 dated ETD,J CCCA No.221_2019

09.06.2011 and that they intended to construct a residential

complex and obtained sanction from the defendant vide board

resolution No.16(38) dated 08.12.2009 for construction of Stilt,

Ground and two floors and after intimating the defendant they

commenced construction without any deviation or violation of

rules but that the defendant has issued a notice under section

248(1) of Cantonment Act (for short "the Act"), dated 28.08.2010

asking the plaintiffs to remove unauthorized construction within

a period of 30 days, saying that the constructions undertaken by

the plaintiffs are in contravention of Section 247 of the Act. It is

their case that the plaintiffs have preferred an appeal against the

said notice before the appellate authority, Pune and that the

same is pending. During the pendency of the said appeal, the

defendant had issued a final notice under Section 320 of the Act

on 10.05.2012 asking to demolish and remove the unauthorized

construction within eight days of the receipt of notice. Thus, the

plaintiffs have filed a suit stating that without giving any

opportunity to the plaintiffs for availing any remedy from the

appellate authority, the defendant has issued final notice and

that they have not committed any violation of the Act. It is

further contended by the plaintiff that if at all there are any

deviations, they can be condoned by collecting compounding fee ETD,J CCCA No.221_2019

by the cantonment authority. Hence, they filed a suit seeking

declaration of the notice issued under Section 320 of the Act to

be null and void and also for granting perpetual injunction

against the defendant.

4. The defendant has filed a written statement denying the

plaint averments. They contended that the suit is liable to be

rejected under Order VII rule 11 of CPC as it is filed during the

pendency of the appeal and that before instituting the suit the

plaintiffs have not issued notice under 339 of the Act to the

defendant and they did not adhere to any guidelines and that the

plaintiffs failed to maintain requisite setbacks and that they have

exceeded the permissible floor area and extended the

construction on all the sides and that the plaintiffs are

constructing apartments by obtaining permission for residential

flats and that after inspecting the premises, the defendant got

issued the show cause notice on 22.05.2010 to stop the

construction and that as the plaintiffs did not respond to the

same, they have issued another notice on 28.08.2010 and that

taking advantage of the appeal filed by them, the plaintiffs are

proceeding with the construction and the notice under challenge

in the appeal was not suspended by the appellate authority.

They further contended that the plaintiffs have filed the present ETD,J CCCA No.221_2019

suit with all false allegations suppressing the material facts. The

defendant has further alleged that there is a specific bar to file

suit under Section 250 of the Act and thus, the plaintiffs are

violating the guidelines while making constructions, they got

issued notice to the plaintiffs based on a complaint lodged by one

B.Gowri Shanker Yadav and that their officials were acting as per

the rules. The defendant by raising all these contentions has

prayed to dismiss the suit.

5. Based on the above pleadings, the trial Court has framed

the following points for consideration:

"1) Whether the plaintiffs are entitled for the relief of declaration of the notice issued under Section 320 of the Cantonment Board as null and void?

2) Whether the plaintiffs are entitled for grant of perpetual injunction, as prayed for?

3) To what relief?"

6. At the time of trial, plaintiffs got examined their GPA

holder as PW1 and got marked Exs.A1 to A9. On behalf of the

defendant, DW1 was examined and Exs.B1 to B6 were marked.

7. Considering the evidence on record, the trial Court has

dismissed the suit. Aggrieved by the said judgment and decree,

the present appeal is filed by the plaintiffs.

ETD,J CCCA No.221_2019

8. Heard the submissions of Sri Ch.Venu Kumar, learned

counsel for the appellants and Sri K.R.Koteswara Rao, learned

Standing Counsel for the respondent.

9. The learned appellants counsel has submitted that the

judgment of the trial Court is against the legal principles of

natural justice, good conscience and equity. He further

submitted that the trial Court has lost sight of the pleadings and

the evidence borne on record and has erroneously dismissed the

suit and that the trial Court failed to appreciate the evidence in

proper perspective. He further argued that the notice under

Ex.A8 is bound to be declared as null and void but the trial

Court failed to do so. He argued that the issuance of notice

under Ex.A8 while the appeal is pending is atrocious and that

the board has abused its power and did not follow the procedure

contemplated under the Act, 2006 and thus, questioning the

impugned notice under section 320 of the Act, 2006 is just and

sustainable. He therefore, submitted that the high handed

action of the cantonment authorities have to be curtailed and

therefore, the trial Court ought to have decreed the suit. He

therefore, prayed this court to set aside the judgment and decree

of the trial court by allowing this appeal.

ETD,J CCCA No.221_2019

10. The learned respondent counsel has submitted that the

appellants herein who are the plaintiffs before the trial court

have proceeded with construction with too many deviations and

it cannot be regularized, and that if there are minor deviations

they can be condoned by collecting a compound fee but when

there are too many deviations they cannot be regularized under

Section 248 of Cantonment Act. He argued that they have not

followed the guidelines with regard to the set back area and

violated the bylaws and also without any regularization they

constructed two more floors and instead of one unit in each floor

they constructed four units and against the permissible

construction of 7,420 sft they constructed 12,261 sft and he

further submitted that the regularization provided under Section

248 of cantonment board is not mandatory and that only if there

are minor deviations they can regulate but not otherwise.

11. The appellants contention is that many other buildings are

constructed with deviations and that the board with wide

discretion has condoned them by collecting compound fee but

the respondent counsel has argued that the violations are too

many in this case and thus, they are not inclined to regularize

the same.

ETD,J CCCA No.221_2019

11. Based on the above rival submissions, this Court frames

the following points for consideration:

1) Whether the notice issued by the defendant under Section 320 of the Act dated 10.05.2012 can be declared as null and void?

2) Whether the plaintiffs are entitled to permanent injunction restraining the defendant from demolishing the existing structures standing on the suit schedule property?

3) Whether the judgment and decree of the trial Court are sustainable under law and in the facts?

4) To what relief?

12. POINT NOs.1 AND 2:

a) The case of the plaintiffs is that they entered into a

development agreement and have obtained necessary permission

and have also intimated the defendant about their construction

and that they have proceeded with construction without any

deviations but the cantonment board has issued notice to them

stating that the construction undertaken by the plaintiffs are in

contravention of Section 247 of the Act.

b) To prove their case, the plaintiff relied upon Exs.A1 to A9.

Ex.A5 is the Xerox copy of the sanction plan dated 08.12.2009.

ETD,J CCCA No.221_2019

c) PW1 in his cross examination has admitted that they have

obtained sanction from the defendant board on 08.12.2009 for

construction of residential building consisting of stilt floor for

parking and ground, first and second floors are residential units

and that the plan obtained is on plot No.26 LIC colony and the

extent of plot is 550 sq.yards. He further admitted that as per

the plan, the plaintiffs were permitted to construct one

residential unit in each floor and the permissible floor area in

each floor from stilt to second floor is 1855 sft per floor and total

floor area of all the floors has to be 7420 sft. He also admitted

that the frontage of the building is 9.6 feet. He further admitted

that on western side of the plot major portion is shown as open

space and the same is not a part of built up area. He also

admitted that the building's sanction was obtained by plaintiff on

08.12.2009 which was released on 26.02.2010, whereas the

development agreement by plaintiff with PW1 was on 21.05.2000.

He further admitted that the sanction accorded by the defendant

vide CBR No.16 (38) dated 08.12.2009 is for a period of two years

from the date of sanction and as per the clause of the plan, if the

building is not completed within two years, the sanction will be

lapsed. He also admitted that subsequent to Ex.A1, dt.27.05.2011

the plaintiff did not make any application to the board to ETD,J CCCA No.221_2019

extend the sanction period for completion of the construction.

Thus, it is elicited through his evidence that the development

agreement was entered prior to obtaining sanction. It is also

elicited that the sanction will be only for a period of two years

and after the period getting lapsed they have not sought for any

further extension of sanction. He further admitted that as per

Clause-4 of the Development Agreement, the total extent of

construction proposed to raise is 12,576 sft having 50/50 ratio

between land owners and developers and that in each floor they

constructed four flats that is ground plus two floors and the total

number of flats in three floors are 12 flats and one pent house.

This admission of plaintiff falsifies his contention that their

construction is as per the sanction. He has admitted that as per

the sanctioned plan one unit per floor would be constructed and

also that total floor area construction would be 7,420 sft but that

their development agreement refers to a total area of construction

to the extent of 12576 sft and he also admitted that they have

constructed 12 flats + one pent house in three floors which is

totally against the sanction. Thus, these clauses in

Ex.A1/development agreement in comparison with that of the

sanction under Ex.A5 reveals the said deviations. It is further

elicited from him that they have not submitted any letter to ETD,J CCCA No.221_2019

cantonment board indicating the completion of construction by a

particular date with a request to issue an occupancy certificate to

induct the prospective purchasers into their respective flats. He

admitted that the cantonment board has issued criminal show

cause notice to the plaintiffs to stop construction in the stilt floor

and instructed to submit a written reply within three days and

that the plaintiffs have not issued any reply to the said show

cause notice dated 22.05.2010. PW1 says that he has no idea

whether the plaintiffs have proceeded with the further

construction from stilt floor. He is the GPA holder of the

plaintiffs and further his identity is revealed as the proprietor of

M/s.Mahalaxmi Homes and he is none other than the developer.

His answer stating that he has no idea whether the plaintiffs

have proceeded with further construction defeats the

genuineness of the plaintiffs case and it is also evident as per the

record that though notice was issued while the stilt floor was

under construction, the plaintiffs proceeded and completed the

construction. It is further elicited through him that there was a

status-quo order granted by the Court on 29.06.2012 and that as

on the said date Ex.A1 i.e. the development agreement is in force

which was executed on 27.05.2011 and that he proceeded with

construction during the pendency of the suit even though there ETD,J CCCA No.221_2019

was status-quo order in force. It is a fact borne out by record

that the plaintiffs proceeded with the construction and completed

it during the pendency of the suit. He further admitted that the

appeal before the appellate authority filed by them under Section

248(1) of the Act is still pending and that during the pendency of

the appeal they filed the present suit and also that they have not

obtained any interim suspension of the notice dated 28.08.2010.

He also admitted that just because they proceeded with

construction during the pendency of appeal the cantonment

board has issued final notice under Section 320 of the Act. He

admitted the photographs of the suit schedule property shown to

him and on his admission Exs.B1 to B3 were marked.

d) A perusal of the said photographs reveals that they pertain

to the constructions held in the suit schedule property. Thus,

the evidence of PW1 itself is enough to dislodge the case of the

plaintiffs. In order to seek the notice to be null and void, the

plaintiffs have to prove that the notice issued under Section 320

of the Act was not justified and that the plaintiffs have not

committed any violations of the sanction that is obtained by

them.

ETD,J CCCA No.221_2019

e) It is pertinent to refer to Section 320 of the Act and the

same is extracted hereunder:

"320. Powers of Board in case of non-compliance with notice, etc.--In the event of non-compliance with the terms of any notice, order or requisition issued to any person under this Act or any rule or bye-law made thereunder, requiring such person to execute any work or to do any act, it shall be lawful for the Board, or the civil area committee or the Chief Executive Officer at whose instance the notice, order or requisition has been issued whether or not the person in default is liable to punishment for such default or has been prosecuted or sentenced to any punishment therefor, after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the act or work required to be done or executed by him, and all the expenses incurred on such account shall be recoverable by the Chief Executive Officer on demand, and if not paid within ten days after such demand, shall be recoverable in the same manner as moneys recoverable by the Board under section 324: Provided that where the action or step relates to the demolition of any erection or re-erection under section 248 or the removal of any projection or encroachment under section 252, the Board or the civil 101 area committee or the Chief Executive Officer may request any police officer to render such assistance as considered necessary for the lawful exercise of any power in this regard and it shall be the duty of such police officer to render forthwith such assistance on such requisition".

f) Thus, under the Act the Cantonment Board is empowered

to issue notice under Section 320 of the Act, whenever a party

violates the sanction in any manner. In this case, PW1 himself

has clearly admitted that they have constructed by violating the

sanction and also that they proceeded with the construction

prior to obtaining sanction and that even after the lapse of

sanction they have not sought for extension of any sanction from

the Cantonment board. It is further elicited that during the

pendency of the suit also they proceeded with the construction ETD,J CCCA No.221_2019

inspite of a status-quo order. It is established that they

committed huge violations when compared to the sanction plan

and proceeded with the construction without any sanction. In

the cross examination of DW1 he admitted that he has not

obtained any signatures of plaintiffs on their inspection report as

well as any of the persons but he stated that the plaintiffs

representatives refused to sign on the inspection report.

However, this suggestion does not aid the plaintiffs in any way

because it is already elicited through PW1 and the Exs.A1 and

A5 that there were many violations in construction and the

objective of inspection is to check whether the construction is

within the sanctioned limits. Thus, the evidence on record

establishes that the plaintiffs have committed huge violations in

the sanctioned plan and that the notice issued under Section

320 of the Act by the defendant is a valid notice.

g) The appellants relied on the decision in K.V.Narasimha

Reddy v. Cantonment Board, Secunderabad rep. by its Chief

Executive Officer and others 1. The facts of the said case in

brief are that the writ petitioner has made construction with

certain deviations from the sanctioned plan to which the

Cantonment board has issued notice. Challenging the said

2024 (2) ALT 715 (S.B.) ETD,J CCCA No.221_2019

notice, he has filed an appeal which was dismissed. Thus, the

writ petition was filed to quash the proceedings and a Bench of

this High Court has dismissed the writ petition and confirmed

the orders passed by the appellate authority, in view of the

admitted violations indulged in by the petitioner, granting liberty

to the petitioner to approach the Cantonment Board with an

application for compounding the violations. Though the

appellant counsel has relied upon this judgment, the principle

underlining the judgment is contrary to his prayer. The quash

petition was dismissed confirming the decision of the appellate

authority in the said case, in view of the admitted violations

made in the construction. In the present case also, there are

deviations which are admitted by the plaintiffs and it is already

held in the preceding paragraphs that the notice issued by the

Cantonment Board is valid and that the appellants are not

entitled for any injunction. However, in the cited decision it was

a writ petition and a direction was given to the petitioner to

approach the Cantonment Board but since this is an appeal

against the suit filed by the plaintiffs seeking an injunction and

declaration of the notice to be null and void, only with regard to

the said questions, the appeal shall be entertained.

ETD,J CCCA No.221_2019

h) The learned counsel for the respondent has relied upon a

case in Friends Colony Development Committee v. State of

Orissa 2. The facts of the said case in brief are that the Friends

Colony Development Committee (appellant) made a

representation on 25.09.1994 to the concerned authority

complaining of the offending construction and submitting that

the deviations from the sanctioned plan damaged the

environment and endangered life and safety of not only the

occupants of the buildings but also of other inhabitants of the

locality. By an order dated 08.11.1994, the Authority directed

that the 5th floor of the building has to be demolished and also

unauthorized projections of 605 Sq.ft. on each floor to be

demolished. Pursuant to the said orders, the builder filed an

appeal before the appellate authority which granted interim stay

of demolition. The appellant has filed writ petition in public

interest in the High Court of Orissa and subsequently, the

appellate authority has dismissed the appeal filed by the builder.

Challenging the said order, the builder has filed a writ petition in

the High Court. The said Writ Petition was taken up for hearing

while the writ petition filed in public interest by the appellant

remained pending and finally the High Court has disposed of the

writ petition by directing that if the builder makes a fresh

2004(8) Supreme 256 ETD,J CCCA No.221_2019

application or submitted a revised plan for approval in respect of

construction already undertaken by it, the Authority should deal

with the same in accordance with law. Aggrieved by the said

judgment of the High Court, the Appellant has preferred SLP

before the Hon'ble Supreme Court. Then, the Apex Court has

held that "though the municipal laws permit deviations from

sanctioned constructions being regularized by compounding but that is

by way of exception. Unfortunately, the exception, with the lapse of

time and frequent exercise of the discretionary power conferred by such

exception, has become the rule. Only such deviations deserve to be

condoned as are bona fide or are attributable to some mis-

understanding or are such deviations as where the benefit gained by

demolition would be far less than the disadvantage suffered. Other

than these, deliberate deviations do not deserve to be condoned and

compounded. Compounding of deviations ought to be kept at a bare

minimum. The cases of professional builders stand on a different

footing from an individual constructing his own building. A professional

builder is supposed to understand the laws better and deviations by

such builders can safely be assumed to be deliberate and done with the

intention of earning profits and hence deserve to be dealt with sternly

so as to act as a deterrent for future. It is common knowledge that the

builders enter into under hand dealings. Be that as it may, the State

Governments should think of levying heavy penalties on such builders

and therefrom develop a welfare fund which can be utilized for

compensating and rehabilitating such innocent or unwary buyers who

are displaced on account of demolition of illegal constructions".

                                                                                       ETD,J
                                                                          CCCA No.221_2019





i)        A      Division       Bench        of     this      High        Court        in

P.Venkateshwarlu & anr v. Government of Andhra Pradesh

& Ors 3, has held that illegal and unauthorized constructions apart

from violating municipal laws and planned development, also infringe

the fundamental and Constitutional rights of other persons. Thus, the

Bench has held that said directions are to be dealt strictly to ensure the

rule of law and has ordered demolition of a building constructed in a

park.

j) Therefore, in the light of the above cited decisions and the

discussion held above, the plaintiffs are not entitled for any

injunction against the defendants and also the notice issued

under Section 320 of the Act is valid and cannot be declared to

be null and void. Point Nos.1 and 2 are answered accordingly.

13. POINT NO.3:

In view of the reasoned findings arrived at point Nos.1 and

2, it is held that the judgment and decree passed by the trial

Court are held to be sustainable in law and under the facts.

14. POINT NO.4:

In the result, the appeal is dismissed upholding the

judgment and decree, dated 26.10.2018 passed in O.S.No.117 of

W.P.No.12538 of 1999 and W.P.No.25738 of 1997 decided on 04.10.2023 ETD,J CCCA No.221_2019

2012 by the learned I Additional Chief Judge, City Civil Court,

Secunderabad. No costs.