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PETITIONER: CANTONMENT BOARD AND ANR.

       Vs.

RESPONDENT: MOHANLAL AND ANR.

DATE OF JUDGMENT:       02/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1586            1996 SCC  (2)  23  JT 1996 (1)    77        1996 SCALE  (1)153

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the order of the Division Bench of the Madhya Pradesh High Court in Misc. Petition No. 2090/75 passed on November 5, 1979, filed under Art. 226  of the  Constitution. The  admitted facts are that the appellant  had issued  a notice  on March 27, 1993 under Section 85  of the  Cantonment Act,  1924 (for  short,  ‘the Act’) to  the respondent  for demolition of the construction made in  the property now in controversy. The Ist respondent had received  the notice  on May 2, 1973, but he carried out further construction.  However, notice under Section 256 was issued on  January 3,  1974 and second notice ultimately was issued for  demolition on  September 13,  1974 under Section 185. The  Ist respondent  had submitted his reply on October 30, 1974.  The area  committee on  December 7,  1974, passed resolution after  considering the representation made by the Ist respondent  to give  15 days  time for compliance of the notice dated  March 27,  1973 and  September 13, 1974 and in case he does not comply with the same it further resolved to have the  structure demolished  through the  agency  of  the Board. Calling  this action  in question  the respondent had filed the  above  writ  petition  in  the  High  Court.  The Division Bench  has held  that though  Section 185 read with 5th  Schedule   does  not   contemplate  any  enquiry  being conducted or  reasons to  be recorded, principles of natural justice require  that necessary  notice and  opportunity  of hearing  be   given   and   after   consideration   of   the representation speaking  order is  required  to  be  passed. Since the  speaking order  had not been passed the action of the respondent was in violation of the law.      The only  question in  this case  is whether  the  view taken by  the High Court is good in law. It is seen that the respondent in  his reply had admitted that they constructed, as pointed  out by  the Cantonment Board in its notice dated September 13,  1974, and  the previous notice. But he stated

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that he  had done  it bona fide and as he would not demolish it but  requested the authority to reconsider the matter and withdraw the notice. In other words, he admitted that he had carried on illegal construction without compliance with law. So the  question  is  whether  enquiry  in  that  behalf  is required to be conducted. We are of the considered view that the High  Court was  not right  in its  conclusion  that  an independent enquiry requires to be held after the notice was issued and the reply thereof was given by the respondent.      It is seen that the Cantonment Board is an elected body represented by people themselves. When opportunity was given putting on  notice  of  illegal  construction  made  by  the respondent,  reply   thereof  was   given.  The   Board  had considered the representation and was not inclined to accede to the  request made  by the  respondent.  Accordingly,  the resolution passed  by the Cantonment Board cannot be faulted as violative of the principles of natural justice.      However, Shri  Lekhi, learned counsel appearing for the appellants stated  that the  action taken  by the respondent can be  candoned provided  he complies with the law. In view of the  stand taken  by the  appellants, it would be open to the respondent  to make  a representation to the Board which would forward  the same  to General  Officer  Commanding  in Chief at Sagar who would pass an appropriate order according to law.      The  appeal   is  accordingly   allowed.   No   costs.