Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: July 01, 2019
+ W.P.(C) 3989/2018 & CM. No 15715/2018
DR. RAJESH KAPOOR
..... Petitioner
Through: Mr. Vikas Dhawan and Ms. Kreeti
Joshi, Advs.
versus
DELHI CANTONMENT BOARD AND
ANR.
..... Respondents
Through: Mr. Ankur Mishra and Mr. Tarveen
Singh Nanda, Advs. with Mr. Alkesh
Sharma, Officiating Executive
Engineer for Delhi Cantonment Board.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
J U D G M E N T
V. KAMESWAR RAO, J
1. The present petition has been filed by the petitioner with
the following prayers:
“The petitioner respectfully prays that this
Hon’ble Court may be pleased to:
I. issue appropriate writ(s), order(s) or
direction(s) in the nature o Certiorari calling for
the records pertaining to, and quash, the order
No.DCB/4/UC/RK/SH.Bazar/2017-18 dated
07.03.2018;
II. consequently issue appropriate writ(s),
W.P.(C) No. 3989/2018 Page 1 of 11
order(s) or direction(s) in the nature of
Mandamus directing respondent No.1 to de-seal
the petitioner’s property bearing No.IV/1/73
(forming part of survey No.52/15), Gopi Nath
Bazar, Delhi Cantonment;
III. award costs of this writ petition to the
petitioner; and
IV. grant such further or other relief as this
Hon’ble Court may deem fit in the facts and
circumstances of this case.”
2. In substance the challenge in the writ petition is to the
communication dated March 07, 2018 by which the respondents
have sealed the shop at ground floor of premises bearing
No.IV/1/73, Gopi Nath Bazar, Delhi Cantonment on the ground
that addition / alternation / modifications are being carried out
unauthorisedly in contravention to the provisions of the
Cantonments Act, 2006 (“Act of 2006” in short).
3. It was the submission of Mr. Vikas Dhawan, learned
counsel for the petitioner that the impugned order under section
249(1) of the Act is in violation of the principle of natural justice,
inasmuch as the petitioner has not been given notice / hearing
before the property has been sealed. According to him as per
whatsapp messages exchanged between the CEO of the Board
and the Junior Engineer, it is clear that the petitioner was carrying
out the work of plastering, repairs and change of electrical
wiring. So, a notice / hearing is pre-requisite before the sealing is
effected as the petitioner could have clarified the position that
there is no alteration / additions / modification, the grounds on
which the respondents effected the sealing. In fact, it was his
submission that the CEO, himself directed the Junior Engineer to
W.P.(C) No. 3989/2018 Page 2 of 11
give notice to the petitioner before effecting the sealing.
Unfortunately, no notice has been given to the petitioner. That
apart, it was his submission that the power to seal unauthorized
construction under Section 249(1) of the Act of 2006 is pursuant
to an order of demolition under Section 248(1) or stoppage of
erection of any building or execution of any work, and such
power is exercisable only within 12 years of such erection or re-
erection, which in this case was in the year 2004. Hence, the
impugned order is liable to be set aside on this ground as well.
4. That apart, he also submitted that order dated March 07,
2018 has been signed by one Mr. Alkesh Sharma, who is
Executive Engineer and as such not authorized under the Act to
sign or authenticate the order. According to him, the power
under the Act is statutorily vested in President of the Board or
Chief Executive Officer or Members of any Committee specially
authorized by the Board and hence the order is bad.
5. That apart, it was his submission, that when a statutory
functionary makes an order based on certain grounds its validity
must be judged by the reasons so mentioned and cannot be
supplemented by the fresh reasoning in the shape of affidavit or
otherwise. In this regard, he submitted that the validity of the
impugned order must be judged only by the reasons so mentioned
in the order and cannot be supplemented by the fresh reasoning in
the shape of affidavit or otherwise, as in the affidavit, the
respondents sought to justify the sealing by stating; (i) the
construction is on land earmarked for grassland / ornamental
ground; (ii) in 2004 the petitioner had constructed building
W.P.(C) No. 3989/2018 Page 3 of 11
without approval as per building Bye-laws for which notices were
issued and the petitioner has preferred an appeal which is pending
before the Competent Authority. He would rely on the judgment
in the case of Pancham Chand v. State of H.P., (2008) 7 SCC
117 in support of his contention.
6. Counter affidavit has been filed by the respondents
wherein the following has been stated:
“5.a. That an area admeasuring 3.89 acres
comprising of Sy. No. 52/15, Shastri bazaar, Delhi
Cantt. was leased out to Sh. L. Gopinath, vide lease
deed dated 30.07.1937 for a period of 30 years,
renewable at the option of lessee upto 90 years
w.e.f 09.06.1932. The said lease was granted for
the purpose of shops, dwelling house and
ornamental garden. Cop of the lease deed has
been annexed as Annexure A2.
b. In 1939 the Respondent had sanctioned
building plan in respect to fSy. No. 52/15, wherein
11 shops and 7 residential quarters were
sanctioned and rest of the area was shown as grass
lawn / ornamental garden.
c. The entire leased area of Sy. No.52/15 is
recorded in favour of Sh. Ajay Gupta. In the year
1990, Sh. Ajay Gupta had sold the lease hold rights
of the entire built up area to 36 persons and
submitted the list of purchasers of leasehold rights
in Sy.No.52/15 to Respondent vide letter dated
26.04.2000. The said list also included the portion
held by Sh. Rajesh Kapoor and Ranjan Kapoor i.e
IV/1/73 and IV/1/73A respectively.
d. That in the year 2004 Sh. Vinod Kumar Bakshi
submitted a copy of General Power of Attorney and
Memorandum of understanding cum agreement of
sell dated 24.01.2004 executed by Sh. Ajay Gupta
W.P.(C) No. 3989/2018 Page 4 of 11
in his favour the property No. IV/1/73. Thus, the
Respondent has not taken any action for mutation
in the said property No., despite the request from
both the parties.
e. It is pertinent to mention that Sh. Ajay Gupta
had not sought prior permission from the
competent authority before transferring the lease
hold rights in the said Property, which is in
contravention of the lease condition 1(8) of the
lease deed.
f. That vide letter dated 29.10.2002, Director, DE,
Western Command had issued specific directions
that no case were unauthorized construction has
been done on ornamental garden should be
proposed for mutation or execution of lease. Copy
of the said letter dated 29.10.2002 has been
annexed as Annexure A3.
g. In the year 2016, 25 cases were initiated for
obtaining sanction for condonation of lease
condition 1(8) and allotment of subsidiary Sy.
Number in the favour of purchasers. Copy of letter
dated 03.08.2016 for condonation and the sanction
letter dated 16.01.2018 have been annexued as
Annexure A4 and Annexure A5.
h. It is pertinent to mention the board vide its
resolution contained in CBR No.01 dated
21.12.2016, resolved to determine the lease of land
reserved for development of ornamental garden
admeasuring 2.10 acres approximately in Sy. No.
52/15. And, the proposal for determination of
lease hold rights in respect of land reserved for
ornamental garden in Sy. No. 52/15 has bene
forwarded to Principal Director vide letter dated
31.01.2017. Copy of CBR No.1 dated 21.12.2016
and Copy of letter dated 31.01.2017 has been
annexed as Annexure A6 and Annexure A7.
W.P.(C) No. 3989/2018 Page 5 of 11
i. The petitioner has not come up with clean hands
as the Petitioner has not disclosed the fact that in
2004 the petitioner had constructed three storey
building comprising of Ground Floor, Second
Floor and Third Floor over an area measuring
21’6”x (11’+ 9’)/2 without approval of building
plans and obtaining sanction of the competent
authority as required u/s 178A/179 of Cantonment
Act, 1924 on the site earmarked as green land in
the sanctioned plan. The illegal construction was
reported to the competent authority by the Junior
Engineer (JE) vide its inspection report dated
24.02.2004, 28.02.2004 and 15.06.2004. Copy of
the JE’s report has been annexed as Annexure A8.
j. Notice u/s 185 of the Cantonments Act, 1924 was
issued to the Petitioner on 15.03.2004 and
16.06.2004 against which he has preferred appeal
before the competent authority. The appeal is
pending for disposal. Similarly, prosecution cases
have also been lodged U/s 184 of the Cantonments
Act, 1924 in which the Petitioner has pleased guilty
before the concerned M.M. and was convicted with
a fine of Rs.5,000/- and Rs.2,000/. Copy of the
Notices u/s 185 has been annexed as Annexure A9.
k. That despite pleading guilty and the appeal
pending against order passed U/s 185 of the
Cantonments Act, 1924 before the competent
authority; the petitioner was again found carrying
out unauthorized construction work in said
premises which is a blatant violation of law. This
fact was reported to the competent authority by the
concerned JE’s. That based on the report of JE an
order U/s 249 was issued by the executive engineer
on behalf of the Chief Executive Officer.”
7. Learned counsel for the respondents has justified the
impugned action, by stating in terms of Section 249(1) of the Act
W.P.(C) No. 3989/2018 Page 6 of 11
of 2006 no notice is required to be given as the property is
already booked for unauthorized construction under Section
248(1) of the Act of 2006. That apart, he stated that the
impugned order has been issued by the Executive Engineer
pursuant to the orders of the Chief Executive Officer of the
Board, who is the competent authority in terms of the Section
249(1) to direct sealing of the property. He also submitted the
plea of Mr. Dhawan that the sealing cannot be carried out after 12
years from the date of notice shall not be applicable in an action
under Section 249(1) of the Act of 2006.
8. Having heard the learned counsel for the parties, and
perused the photocopy of the relevant record placed before me I
deem it appropriate to, first deal with the submission made by
Mr. Vikas Dhawan that Section 249 being in aid of Section 248
which refers to the powers of the Board to demolish / stay of
erection or re-erection, the power of sealing has to be exercised
within 12 years, is concerned, the same is fallacious for the
reason the limitation period of 12 years is only stipulated in
Section 248(1). The same is conspicuous of its absence in
Section 249(1) of the Act of 2006. So on a literal construction of
Section 249(1), the period of 12 years cannot be read in the said
Section. Otherwise, it would amount to reading in Section 249(1)
the period of 12 years which is not even thought of by the
Parliament.
9. Insofar as the plea of Mr. Dhawan that the impugned
order having been signed by the Executive Engineer, who is not
the authority mentioned under Section 317 to sign or authenticate
W.P.(C) No. 3989/2018 Page 7 of 11
the order and as such the order is bad is concerned, this argument
is also fallacious as Section 317 of the Act of 2006 on which the
reliance was placed by Mr. Dhawan contemplates all notices,
orders or requisition issued by the Board under the Act or any
rule or byelaw made thereunder shall be signed either by the
President of the Board or by the Chief Executive Officer or by
the Members of the Committee specially authorized by the Board
in that behalf. But in the case in hand, the petitioner is not
concerned with a notice, order or requisition issued by the Board,
but as noted from Section 249(1) of the Act of 2006 itself that the
authority concerned to seal unauthorized constructions is the
Chief Executive Officer, who is an authority other than the Board
and I have not been shown any provision that any order issued
pursuant to the decision of the Chief Executive Officer need to be
communicated by the Chief Executive Officer only. So, it
follows the Executive Engineer has only conveyed the decision of
the Chief Executive Officer to the petitioner. It is also not the
case of Mr. Dhawan that there is no decision of the Chief
Executive Officer of sealing. So, this submission of Mr. Dhawan
is also liable to be rejected.
10. One submission of Mr. Dhawan was that the respondents
were required to follow the principles of natural justice of at least
giving notice / hearing to the petitioner before passing the sealing
order. There is no dispute that the action of sealing under Section
249(1) of the Act of 2006 can follow action of stoppage of
erection or re-erection or demolition taken by the Board. It is a
settled position of law in terms of the judgment of the Division
W.P.(C) No. 3989/2018 Page 8 of 11
Bench of this Court in the case of Danish Infratech Private
Limited v. Delhi Cantonment Board, W.P. (C) 7139/2014,
decided on November 19, 2014 wherein an issue arose whether
Section 248(1) of the Cantonment Act, 2006 is unconstitutional
and ultra vires the scheme of the Constitution of India as Section
248(1) does not contemplate any hearing being given before the
notice to stop work. The question was decided in the negative.
This decision of the Division Bench was also for the reason that
there is a remedy of appeal provided against the said action of the
Board under Section 340 read with Schedule 5 of the Act, and in
view of Section 342 during the pendency of the appeal no action
of demolition is taken. If that be so, that whether on account of
Section 249(1) sealing of the property can be taken without
issuance of a notice / hearing to the owner / occupier. The
answer to this question has to be in the negative, for various
reasons, which includes (i) in view of the fact that during the
pendency of the appeal under Section 340 of the Act against an
order under Section 248(1) of the Act the respondents do not take
any action to demolish the property in question. In other words,
the owner / occupier enjoys the property to the fullest extent
during the pendency of the appeal, (ii) but with the order of
sealing under section 249(1) the enjoyment of the property is
interdicted.
11. In view of drastic consequence, even though Section
249(1) does not contemplate any notice / hearing to be given to
the owner / occupier, the same must be read into the said
provision as the sealing of the property causes grave prejudice to
W.P.(C) No. 3989/2018 Page 9 of 11
the owner / occupier. In his regard, it is apt to refer to the
judgment of the Supreme Court in the case of Haryana
Financial Corporation v. Kailash Chandra Ahuja, (2008) 9
SCC 31 wherein the Supreme Court has applied the test of
prejudice and it was held that if there is no prejudice the action
cannot be set aside merely on the ground that no hearing was
accorded before taking a decision by the authority. Further
prejudice is also caused in an action under Section 249(1) unlike
Section 248(1) of the Act as there is no remedy of appeal against
the order passed under Section 249(1) of the Act as is seen from
Schedule 5 of the Act, and also unlike under Section 248(1) when
an appeal is pending no precipitative action is being taken till the
hearing of the appeal which is not the case under Section 249(1)
as the action of sealing is acted upon. No doubt, Section 248(1)
stipulates passing of a sealing order before or after making an
order of demolition under Section 248(1) or stoppage of erection
of any building or executing of any work, but as no appeal is
provided against the order under Section 249(1) and the order has
the effect of sealing the property. So, it is necessarily follows
that in both the eventuality it becomes imperative a notice is
issued seeking reply of the owner / occupier and considering the
same before passing an order. It must be clarified, that the notice
is only to the extent of sealing. In this case also as no notice was
issued to the petitioner, the impugned order dated March 07,
2018 is liable to be set aside. It is ordered accordingly. Liberty
is with the respondents to issue notice to the petitioner and take
further action after considering the reply to be filed by the
W.P.(C) No. 3989/2018 Page 10 of 11
petitioner to the notice. If any order is passed to the prejudice of
the petitioner, he is within his right to seek such remedy as
available in law.
CM. No 15715/2018
Dismissed as infructuous.
V. KAMESWAR RAO, J
JULY 01, 2019 /aky
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