C.A.Nos.3814 of 19 etc.

    REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3814 OF 2019

Cantonment Board, Meerut & Anr.        ...Appellants

Versus

Afzal          ...Respondent

WITH  

CIVIL APPEAL NOS.     3815/2019;  3816/2019; 3817/2019;

3818/2019;  3819/2019;  3820/2019;  3821/2019;  3822/2019;

3823/2019;  3824/2019;  3825/2019;  3826/2019;  3827/2019;

3828/2019;  3829/2019;  3830/2019;  3831/2019;  3832/2019;

3833/2019;  3834/2019;  3835/2019;  3836/2019;  3837/2019;

3838/2019;  3839/2019;  3840/2019;  3841/2019;  3842/2019;

3843/2019;  3844/2019;  3845/2019;  3846/2019;  3847/2019;

3848/2019;  3849/2019;  3850/2019;  3851/2019;  3852/2019;

3853/2019;  3854/2019;  3855/2019;  3856/2019;  3857/2019;

3858/2019;  3859/2019;  3860/2019;  3861/2019;  3862/2019;

3863/2019;  3864/2019;  3865/2019;  3866/2019;  3867/2019;

3868/2019;  3869/2019;  3870/2019; 3871/2019

J U D G M E N T

R. Subhash Reddy, J.

1. This batch of appeals, is filed by the Cantonment

Board, Meerut and others, aggrieved by the common order

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C.A.Nos.3814 of 19 etc.

dated 19.12.2013 passed by the High Court of Allahabad

in Civil Misc. Writ Petition No.54929 of 2012 and batch.

All the appeals shall stand disposed of by this common

judgment.

2. In the writ petitions filed before the High Court,

respondents  –  original  petitioners  have  prayed  for

quashing  of  notices  issued  by  the  appellants  under

Section 185 of the Cantonments Act, 1924 (for short,

‘the 1924 Act’) for stopping the alleged constructions

raised  unauthorisedly  by  the  respondents  –  original

petitioners  as  well  as  for  quashing  of  the  notices

issued for demolition of constructions so raised.  The

respondents  –  writ  petitioners  have  also  prayed  for

quashing of the appellate order passed by the appellate

authority dismissing the appeals preferred by them.

3. The law relating to administration of cantonments

was originally governed by the 1924 Act.  The said Act

is repealed by virtue of Section 360 of the Cantonments

Act, 2006 (for short, ‘the 2006 Act’).  The 2006 Act

came into force w.e.f. 18.12.2006.

4. Before the new Act has come into force, Cantonment

Executive  Officer  has  initiated  proceedings  under

Sections 184 and 185 of the 1924 Act, on the ground that

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C.A.Nos.3814 of 19 etc.

respondents have carried out unauthorised constructions

without prior permission within the area of cantonment

and  has  issued  show  cause  notices  to  show  cause  why

legal  action  should  not  be  taken  against  the

respondents.   For  the  purpose  of  disposal,  we  would

refer  to  the  notice  issued  to  one  Afzal  who  is  the

respondent in Civil appeal No.3814 of 2019.  The notice

issued to the said respondent reads as under :

“ Office of the Cantonment Board Meerut, dated 22nd Aug, 2006

To Afzal Ahmad S/o Faqruddin, 55/pt Ghosi Mohalla, B.I. Bazar, Meerut Cantt.

    Subject : SHOW CAUSE NOTICE

It  has  been  reported  to  me  that  you  have carried  out  the  following  unauthorized constructions without prior permission in the Shop No.53-54 Ghosi Mohalla, B.I. Bazar, Meerut Cantt.

FIRST FLOOR

Room  Measuring  12’-11”  x  15’-7”  is  being constructed  in  Shop  No.53-54,  Ghosi  Mohalla B.I. Bazar, Meerut Cantt.

As  this  is  an  offence  punishable  under Section  184/185  of  the  Cantonments  Act,  1924 (amended), please show cause within 3 days from the receipt hereof, why legal action should not be taken against you under the provisions of the said Section of the Cantonments Act, 1924 (Amended).”

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C.A.Nos.3814 of 19 etc.

5. In continuation of the show cause notice, further

notice is issued on 02.09.2006 under Section 185 of the

1924 Act to stop further construction and for demolition

of  the  unauthorised  construction.   Aggrieved  by  the

notice dated 02.09.2006 he has filed statutory appeal as

contemplated under Section 274 of the 1924 Act.  Appeal

also ended in dismissal.  In all the cases covered in

this group, identical and stereo type orders are passed

by the primary authority and appellate authority.

6. Challenging the notice issued under Section 185 of

the  1924  Act  and  order  of  the  appellate  authority,

respondents  –  original  petitioners  have  filed  writ

petitions before the High Court.  The orders impugned in

the writ petitions before the High Court were challenged

mainly on the gorund that there is no authority to the

Executive Officer to issue such a notice and the notice

is without jurisdiction.  The second ground is that the

notice for demolition has to be issued within a period

of 12 months from the date of the alleged constructions.

It  was  pleaded  that  date  of  construction  was  not

mentioned in the notice, as such, notice was barred by

limitation.  Another ground before the High Court was

that notices were issued in a casual manner and inspite

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C.A.Nos.3814 of 19 etc.

of submitting the reply to the show cause notices, the

primary  authority  has  not  considered  the  replies  and

passed order, and even appellate authority has passed

stereo type orders without giving any opportunity and

fixing the date for hearing.  First two grounds raised

by the respondents – writ petitioners were not accepted

but however High Court has held that reply filed by the

respondents  –  original  petitioners  was  not  considered

and no reasons were assigned for rejecting objections.

Further, it is also held that the appellate authority

has passed orders, which are more or less identical, and

passed  in  a  pre-determined  manner  without  giving  any

opportunity  of  hearing.   While  quashing  the  impugned

orders, High Court by impugned order dated 19.12.2013

left open to the appellants to proceed afresh in the

light of observations made in the judgment.  

7. We have heard the learned counsel Ms. Rekha Pandey

appearing for the appellants and also learned counsels

appearing for the respondents in this group of cases.

8. In  these  appeals,  it  is  contended  by  learned

counsel for the appellants that when constructions are

made  unauthorisedly  without  obtaining  permission  from

the  competent  authority,  it  is  always  open  for  the

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C.A.Nos.3814 of 19 etc.

authorities  to  order  for  demolition  of  such

constructions, which are raised illegally.  Further it

is  submitted  that  inspite  of  giving  several

opportunities, respondents – original petitioners have

not appeared before the appellate authority, as such,

appellate authority has considered the matter on merits

and passed the impugned order.  It is further submitted

that even the primary authority has issued notice under

Section 185 of the 1924 Act after giving an opportunity

by  way  of  show  cause  notice.   It  is  submitted  that

inspite of giving opportunity at the primary stage and

the appellate stage, the High Court erroneously recorded

the  finding  that  orders  are  passed  without  giving

opportunity and quashed the impugned orders in the writ

petitions.

9. On the other hand learned counsel appearing for the

respondents have pleaded that either primary authority

or  appellate  authority  have  not  considered  the

objections raised by the appellants and impugned orders

are  passed.   It  is  submitted  that  inspite  of  filing

objections  to  the  show  cause  notices,  the  Cantonment

Executive Officer has not referred to such objections

and issued notices under Section 185 of the 1924 Act for

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C.A.Nos.3814 of 19 etc.

demolition.  When appeals are preferred by availing the

statutory remedy, as contemplated under the Act, even

the appellate authority has not given an opportunity by

fixing  the  date  of  hearing  and  passed  the  impugned

stereo type orders rejecting the appeals preferred by

the respondents.  It is further submitted that there is

no valid delegation to Cantonment Executive Officer at

all  and  the  impugned  notices  are  issued  without  any

jurisdiction.

10. Having heard learned counsel for the parties, we

have perused the impugned order passed by the High Court

and other materials placed on record.

11. At the outset, it is to be noticed that aggrieved

by the common order passed by the High Court, Cantonment

Board and others have filed appeals and there are no

appeals filed by the respondents herein aggrieved by any

of the findings recorded in the common impugned order.

The jurisdiction questioned by the respondents and the

authority  of  the  appellants  in  issuing  notice  under

Section 185 of the 1924 Act is rejected by the High

Court.   Similarly  further  plea  of  not  taking  action

within  a  period  of  12  months  from  the  date  of

construction is also rejected by recording reasons.  We

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C.A.Nos.3814 of 19 etc.

do not find any error on such findings recorded by the

High Court, more particularly in absence of any appeals

preferred by the respondents – original petitioners. At

the same time, we are of the view, valid and cogent

reasons are recorded by the High Court for quashing the

notices issued under Section 185 of the 1924 Act and

orders  by  the  appellate  authority.  Apart  from  the

reasons  assigned  in  the  impugned  order  we  have  also

verified the other material placed on record.  So far as

Afzal who is respondent in Civil Appeal No. 3814 of 2019

is  concerned,  show  cause  notice  dated  22.08.2006  is

issued alleging that he has constructed the shop no.53-

54 at Ghosi Mohalla, B.I. Bazar, Meerut Cantt., but same

is not even referred to in the final notice issued on

02.09.2006.  It  is  the  case  of  the  respondents  that

objections were filed, and their objections were also

not considered. Having issued the show cause notice, the

primary authority ought to have referred to such notice

and objections, if any, to such notice, while issuing

the final notice on 02.09.2006. It is clear that notices

are issued mechanically and in a casual manner. Even the

appellate authority, relying on the survey report dated

10.08.2006, has held that the respondent in Civil Appeal

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C.A.Nos.3814 of 19 etc.

No.3814 of 2019 has raised unauthorised constructions on

the  first  floor  of  the  shop  without  taking  any

permission of the competent authority.  Further, it is

stated  that  such  survey/inspection  report  is  not

furnished to the respondents at any point of time though

such  report  is  relied  on  for  rejecting  the  appeals

preferred by the respondents.

12. While quashing the notices in the impugned order in

the writ petitions filed before the High Court, High

Court has left it open to the appellants to issue fresh

notice  and  to  pass  appropriate  orders  by  following

procedure contemplated under law.  In that view of the

matter, while it is always open to the appellants to

initiate fresh proceedings by issuing fresh show cause

notices on the allegations made against the respondents,

but at the same time having regard to reasons recorded

in the impugned order passed by the High Court, we do

not find any error in the order passed by the High Court

so as to interfere with the same in these appeals.

13. These appeals are accordingly dismissed.  However,

we make it clear that the liberty granted by the High

Court  to  initiate  fresh  proceedings  for  passing

appropriate  orders  is  maintained.   As  the  Cantonment

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C.A.Nos.3814 of 19 etc.

Act,  2006  has  come  into  force  from  18.12.2006,

appellants to take fresh action only in accordance with

the provisions of the 2006 Act. Fresh show cause notice

issued  shall  be  in  continuation  of  the  earlier  show

cause notice issued to each of the respondents.  While

issuing  fresh  show  cause  notice,  the  appellant  shall

furnish copy of the Inspection Report to the respondents

and  afford  sufficient  opportunity  to  each  of  the

respondents  and  pass  order  in  accordance  with  law.

Further the constructions in question are unauthorised

or not, such issue is left open to be considered by the

authorities.

.................... J. [R. Banumathi]

.................... J. [R. Subhash Reddy]

New Delhi; April 23, 2019

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