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PETITIONER: THE CANTONMENT BOARD, JABALPUR & ORS.

       Vs.

RESPONDENT: SRI S.N. AWASTHI & ORS.

DATE OF JUDGMENT02/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCC  Supl.  (4) 595 1995 SCALE  (6)462

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special  leave arises from the order of the High  Court of Madhya Pradesh dated March 2, 1992 passed in Misc. Petition NO. 2233 of 1991.      The Cantonment Board through its Resolution No.10 dated 30th March,  1990 had granted permission for construction of a  building   which  later   on  was  cancelled  by  another proceedings dated  July 5,  1991. Calling in question of the cancellation, the  respondents filed  the writ petition. The High Court allowed the writ petition on three grounds, viz., that the  sanction having  been granted  in  favour  of  the respondents,  cancellation   thereof   without   giving   an opportunity would  be in  violation  of  the  principles  of natural justice.  It was  also held  that the appellants had not specified  the distinction between the ’Military Estates Officer’ and the ’Defence Estates Officer’ for the latter to get power  to cancel the permission. Further, it was already held that  in equity,  since  the  respondents  had  started construction, the cancellation was not justified.      It is  not in in dispute and in fact cannot be disputed that the  land  is  situated  within  the  Cantonment  Area. Therefore, the  title in  the  land  stands  vested  in  the Cantonment Board.  What a  person in lawful possession would be entitled  to  enjoy  is  the  lease-hold  rights  thereon subject  to   the  conditions  mentioned  therein.  For  the erection or  re-erection of  a building,  a licence from the Cantonment Board  is required  as a  pre-condition under the Act. Section 181 of the Act in that behalf covers the field. Sub-s(3) thereof reads thus:-      "(3)  The  Board,  before  sanction  the      erection or re-erection of a building on      land which  is under  the management  of      the  Military   Estates  Officer,  shall      refer the  application to  the  Military      Estates Officer for ascertaining whether

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    there is  any objection  on the  part of      the Government  to such  erection or re-      erection;  and   the  Military   Estates      Officer  shall  return  the  application      together with  his report thereon to the      Board within  30 days  after it has been      received by him."      The Act was subsequently amended by Amendment Act No.16 of 1983  which  came  into  force  w.e.f.  October  1,  1983 substituting  for   the  words  "Military  Estate  Officer’, ’Defence Estates  Officer’. Thus,  as on October 1, 1983 the competent officer  to be  consulted as  a condition to grant permission by  the Cantonment  Board  for  erection  or  re- erection of  building by  the Board was the ’Defence Estates Officer’. Admittedly, prior permission was not obtained from him. It is also on record that G.O.C.-in-Chief had suspended the Resolution  by proceedings  dated June  22, 1991  and he passed  the   order  directing   the  Cantonment   Board  to reconsider the  matter and  pursuant thereto,  the Board had cancelled the  sanction. Since  the condition  precedent  of prior sanction  of Defence Estates Officer under sub-section (3) of  Section 181  had not been obtained, the sanction for construction of  the house  granted by  the Cantonment Board was per  se illegal. It is true that no prior notice, before cancellation by  the Board, was given to the respondents. In view of  the fact  that statutory  condition  has  not  been complied, we  do not like to have the proceedings delayed by directing the  Board to  give an  opportunity to  pass fresh order. Instead,  we think that the proper course would be to direct the respondents to make an application afresh and the same would  be considered  by the Board according to law and would be  disposed of.  The Board  would consider  the  same within one month from the date of the application and should make reference  within 15  days thereafter  to the  ’Defence Estates Officer’  for appropriate  sanction who  would  then take action  under Section  181 (3)  of the  Act within  one month. On return thereof, final order would be passed by the Cantonment Board  within one  month from the date of receipt of the  order passed  by the  Defence Estates Officer. It is needless to  mention that  in case  the Board or the Defence Estates Officer would inclined to reject the application for sanction, they should give reasons in support thereof. It is also needless  to mention  that along  with the application, the respondents  would be  at  liberty  to  file  all  their documents  in   support  of   their  claim   for   sanction. Construction made  in contravention  of law  would not  be a premium to  extend equity  so as  to facilitate violation of mandatory requirements  of law.  The High  Court, therefore, was not  justified in  extending equity  for  completion  of construction.      The appeal is disposed of accordingly. No costs.