Sanjay Narang vs Cantonment Board
2021 Latest Caselaw 340 UK

                                               Reserved Judgment



  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

         Writ Petition (M/S) No.725 of 2019


Sanjay Narang S/o Sri Manohar Lal Narang R/o
Rokeby Manor, Survey No.47, Landour Cantonment,
Mussoorie, District Dehradun (Uttarakhand) through
Power of Attorney Holder Neeraj Parihar S/o Sri S.S.
Parihar R/o Village Takula, Tahsil & District Nainital
                                                     ......Petitioner
                               Versus

1. Cantonment Board, Landour, Through its Chief
   Executive Officer, Landour Cantonment, Mussoorie,
   District Dehradun
2. Defence Estates Officer, Meerut Circile, Meerut
   Cantonment Meerut (Uttar Pradesh)
3. Union of India through the Secretary, Ministry of
   Defence North Block, New Delhi-110001
                                                  ....Respondents
PRESENT:

Mr. Aditya Singh, Advocate for the petitioner
Mr. B.S. Adhikari, Advocate for respondent no.1
Mr. Sanjay Bhatt, Standing Counsel for respondent nos.2 and 3/Union of
India



                           JUDGMENT

Hon'ble Lok Pal Singh, J.

By means of present writ petition, petitioner has sought the following relief:-

(i) Issue a writ of certiorari and quash the impugned letter no.13/157/VOL.V/CBL/03 dated 20.02.2019 and Cantonment Board Resolution No.17 dated 16.02.2019 by which the respondent no.1 has rejected the petitioner's application dated 10.1.2019 under Section 234 and 235 of the Cantonments Act, 2006 for sanction of

construction of a residential building at Dahlia Bank, Survey No.157, Landour Cantonment, Mussooriee, Uttarakhand, contained as Annexure No.1 to the writ petition.

2. Factual matrix of the case is that on 27.04.2009 petitioner purchased the property Dahlia Bank, Survey No.157, Landour Cantonment, Mussoorie, Uttarakhand, from the erstwhile owner Mr. B.P. Singh vide registered sale deed dated 27.04.2009. Before it, the Central Government through Respondent no.3 had issued a Notification dated 30.08.2005 notifying the Institute of Technology Management (ITM), situated in Landour Cantonment, Mussoorie, under the provisions of Section 3 of the Works of Defence Act, 1903 and prohibiting any construction within 50 meters of the outer crest of the parapet of the ITM. Since the property had a 150 years old building over it and the same was in a severely dilapidated condition, the petitioner applied for erection/re-erection of the building vide application dated 21.10.2009. According to the appellant, he became entitled to the benefit of deemed sanction under Section 238(6) of the Cantonments Act, 2006 (hereinafter to be referred as the Act). He thus filed Original Suit No. 249 of 2011 seeking a decree of perpetual injunction. According to the petitioner, initially the Cantonment Board sanctioned the construction on 30.06.2012 but this sanction was dissented by the then CEO and referred to the then GOC-in-C, who ultimately revoked the sanction.

3. The trial court dismissed the suit of the petitioner on 26.05.2012 against which he filed first

appeal before the District Judge, Dehradun. The first appeal was allowed and the suit was decreed vide judgment and decree dated 21.09.2012. Being aggrieved by said judgment and decree, the Cantonment Board preferred Second Appeal No. 100 of 2012. The appeal was allowed by judgment and order dated 14.08.2013 with the following observation and directions:-

"19. Accordingly, the second appeal is allowed. Impugned judgment and decreed dated 21.09.2012, passed by the District Judge, Dehradun, in Civil Appeal No. 57 of 2012, is set aside. The suit No. 249 of 2011, filed by the plaintiff before Civil Judge (Sr. Div.), Dehradun, stands dismissed with the observation that if the plaintiff submits fresh plan leaving fifty meters of distance from the crest of outer parapet of ITM, the same may be considered by the appellant and respondent no. 2 in accordance with law. However, no orders as to costs.

4. The judgment and order dated 14.08.2013 was challenged by the petitioner before the Hon'ble Apex Court by way of S.L.P. By judgment dated 21.04.2014 S.L.P. preferred by the petitioner was dismissed. Meanwhile, the petitioner filed a writ petition being WPMS No.2962 of 2017 challenging the Notification dated 30.08.2005. On 10.11.2014, the CEO of the Cantonment Board issued the demolition notice to the petitioner. Against the demolition notice, the petitioner preferred the writ petition being WPMS NO.2609 of 2014, which was dismissed by this Court vide order dated 27.11.2014, against which special appeal no.645 of 2014 was filed before the Division Bench, which was also dismissed vide judgment dated 05.09.2017. Thereafter, the petitioner approached the

Hon'ble Apex Court and filed the SLP, which also stood dismissed.

5. Meanwhile, the petitioner filed a review petition against the judgment dated 5.9.2017 passed in SPA No.645 of 2014. The review petition was partly allowed by the Division Bench vide order dated 10.01.2018 thereby restraining the demolition of building no.2 and part of building no.6 which was below building no.2 for a period of three months in view of a pending writ petition. In the review petition, the Division Bench also directed the Cantonment Board to carry out a measurement of Dahlia Bank from the boundary of ITM to determine the extent of the 50 meters restriction.

6. In the interregnum, as the demolition notice had attained finality upto the Apex Court, the Cantonment Board demolished the substantial part of the property. Subsequently, the remaining portion was also demolished.

7. On 03.08.2018, the Cantonment Board issued a demolition notice to the petitioner alleging unauthorized construction of underground godown/plant room, under water tank, guard room and stair way to underground godown/plant room. Being aggrieved by the said notice, the petitioner preferred an appeal to the GOC-in-C u/s 340 of the Act.

8. Pursuant to the liberty granted by the judgment dated 14.08.2013, on 10.01.2019 petitioner submitted application to the Cantonment Board seeking sanction of fresh plans for construction of a

residential building at Dahlia Bank, Survey No.157, under Sections 234(a) and 235(1)(a) of the Act. Chief Executive Officer, Cantonment Board, Landour, vide its order dated 20.02.2019, rejected the application moved by the petitioner.

9. I have heard learned counsel for the parties and perused the material brought on record.

10. Learned counsel for the petitioner would submit that the impugned order has been passed in violation of principles of natural justice inasmuch as petitioner was not afforded any opportunity of hearing before rejecting his application. He would further submit that the respondent no.1 has illegally rejected the petitioner's application as the building now proposed to be constructed is located beyond the 50 metres line demarked by the Cantonment Board itself on 20.03.2018.

11. On the other hand, learned counsel appearing for the respondent no.1 would raise objection to the maintainability of the writ petition and would submit that there is availability of a remedy by way of an appeal under Section 340 of the Cantonments Act, 2006, against the impugned order, but the petitioner, without following the due procedure, has straightaway approached this Court. To this, learned counsel for the petitioner would submit that admittedly against the impugned order, an appeal lies to the GOC-in-C. He would submit that the Cantonment Board as well as the appellate authority all function under the Ministry of Defence and an appeal to the GOC-in-C from an order of the Cantonment Board is virtually an appeal to the same

authorities who rejected the application in the first place, thus, it would be a futile exercise to prefer the appeal before the appellate authority.

12. A perusal of impugned resolution no.17 dated 16.02.2019 would reveal that the application moved by the petitioner for fresh building plan has been rejected by the Cantonment Board, Landour due to following reasons:-

a. Earlier the unauthorized construction has been demolished by the Board with the order of Hon'ble High Court of Uttarakhand.

b. The land is under the management of Defence Estate Officer Meerut Circle, Meerut Cantt and the same has not been mutated in his name in the record of DEO, Meerut Cantt.

c. NOC for construction from land point of view from ITM Landour Cantt has not been obtained. d. The resumption proceeding of Survey No.157, Landour Cantt have already been started by HQ Uttarakhand Sub Area, Dehradun e. The Board has issued a notice under Section 248 of the Cantonments Act, 2006 vide No.13/157/Godown/CBL/16 dated 03.08.2018 for unauthorized constructed Godown/Power Plant at the premises and matter is pending with GOC-in-C, Central Command, Lucknow.

13. It is also recorded in the impugned resolution that the CEO has intimated that there is no change in circumstances from earlier rejection of building plan at Survey No.157 Landour Cantt and the petitioner was intimated vide letter dated 03.10.2017

to fulfill the conditions to sanction the building plan which he has not complied with.

14. A perusal of impugned resolution makes it abundantly clear that the application of the petitioner has been rejected on account of non-compliance of certain conditions. Admittedly, against the impugned order, there is statutory remedy of appeal available to the petitioner under Section 340 of the Act which reads as under:-

"340. Appeals from executive orders. (1) Any person aggrieved by any order described in the third column of Schedule V may appeal to the appellate authority specified in that behalf in the fourth column of the said Schedule.

(2) The Central Government may, for the purposes of expeditious disposal of the pending appeals, by notification in the Official Gazette, amend Schedule V so as to designate additional appellate authority in the fourth column of the said Schedule.

(3) No such appeal shall be admitted it if is made after the expiry of the period specified in that behalf in the fifth column of the said Schedule.

(4) The period specified as aforesaid shall be computed in accordance with the provisions of the Limitation Act, 1963 (36 of 1963) with respect to the computation of periods of limitation thereunder."

15. It is trite that where there is another remedy provided, the Court must refrain itself from exercising the jurisdiction under Article 226 of the Constitution.

16. The Hon'ble Apex Court in the case of Chanan Singh and Sons v. Collector, Central Excise and Ors., (1999) 9 SCC 17, has held in para-2 as follows :-

"The High Court simply said that the appellant had a statutory alternative remedy and the appellant had to avail that statutory remedy instead of filing writ petition. Accordingly, the High Court dismissed the writ petition. The appellant instead of challenging the order of the Tribunal by availing the statutory alternative remedy has filed this appeal by special leave challenging, the order of the High Court. We are of the view that the High Court was right in dismissing the writ petition directing the appellant to avail the statutory alternative remedy."

17. In Punjab National Bank v. O.C.

Krishnan and Ors., AIR 2001 SCW 2993, Hon'ble Apex Court while considering the issue of alternative remedy observed as under :-

"The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast tract procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions.

This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."

18. In Kerala State Electricity Board and Anr. v. Kurien E. Kalathil and Ors., (2000) 6 SCC 293, while dealing with a similar issue, the Supreme Court held that the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy.

19. In A Venkateshwaiah Naidu v. S.

Chellappan and Ors., (2000) 7 SCC 695, the Supreme Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. In para 22, the Court observed as under :-

"Though no hurdle can be put against the exercise of Constitutional powers of the High Court, it is a well recognised principle which gives judicial recognition that the High Court should direct the party to avail himself of such remedy, one or other, before he resorts to a Constitutional remedy."

20. In view of the foregoing discussion, the writ petition is dismissed on the ground of alternative remedy.

21. No order as to costs.

(Lok Pal Singh, J.)

12.02.2021 Rajni