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2006 Supreme(AP) 172
Andhra Pradesh High Court
Judges : V.V.S.RAO
S.Vijaya Rama Rao - Appellant
Versus
Secunderabad Cantonment Board, Secunderabad - Respondent
Decided On : 02-13-06
Headnote:
Cantonments Act 1924 - Section 179, 185, 185 (1), 256 - Members of the Society - Deemed permission - Purpose of payment of property tax - respondent filed a counter- affidavit. It is stated that after receiving building application for sanction under section 179 of the Act, the respondent returned the same informing that a Court case is pending with regard to layout - Petitioner thereafter never represented the plan, but started construction - Therefore, a notice under Section 185 (1) of the Act was issued to remove the unauthorized construction on their own. Instead of complying with the same, the petitioners illegally made construction and completed the work of construction of ground floor, first and second floors. The same was detected and therefore a statutory notice was issued under Section 185 (1) of the Act. It is further alleged that no such application was made with regard to plot No. 26/3, but application was made only in respect of plot - In spite of the same, petitioners did not comply with the notice and therefore a final notice under section 256 of the Act was issued for demolition of the un-authorized construction - Held, No material is placed before this Court by the petitioner that he sent a notice after waiting for one month to claim the benefit under Section 181 (6) of the Act. Indeed, it is his case that he sent an application and the same was returned by the respondents - When the same was returned and in the absence of any communication calling the attention of the Board to the alleged omission or neglect, the petitioner cannot claim that the Board is deemed to have sanctioned the building permission - Therefore, Construction made by the petitioner, even after the application was returned, is illegal and unauthorized - Cantonment Board issued notice under Section 185 (1) of the Act to stop construction - Petitioner states that as the building permission is deemed to have been approved, the petitioner ignored the notice under Section 185 (1) of the Act. However, the cantonment Board could not take further action as the layout, in which the petitioners house sites were situated, was the subject-matter of a writ petition before this Court in W. P. - Same was ultimately dismissed and immediately thereafter the respondent issued the notice under section 256 of the Act - Factual background, it would not be possible to accept the submission of the learned Counsel for the petitioners that the proposed demolition is beyond twelve months - Writ petition is dismissed
( 2 ) THE respondent filed a counter- affidavit. It is stated that after receiving building application for sanction under section 179 of the Act, the respondent returned the same informing that a Court case is pending with regard to layout. The petitioner thereafter never represented the plan, but started construction. Therefore, on 25. 2. 1993 a notice under Section 185 (1) of the Act was issued to remove the unauthorized construction on their own. Instead of complying with the same, the petitioners illegally made construction and completed the work of construction of ground floor, first and second floors. The same was detected on 22. 10. 1992 and therefore a statutory notice was issued under Section 185 (1) of the Act. It is further alleged that no such application was made with regard to plot No. 26/3, but application was made only in respect of plot Nos. 26/1 and 26/2. In spite of the same, petitioners did not comply with the notice and therefore a final notice under section 256 of the Act was issued for demolition of the un-authorized construction.
( 3 ) THE learned Counsel for the petitioners submits that the respondent never rejected building plan and therefore the petitioners are entitled to proceed with the construction under Section 181 (6) of the act. Secondly, he would urge that in the absence of notice under Section 185 (1) of the Act, notice under Section 256 of the Act cannot be issued. The learned counsel also submits that the action of the respondent Cantonment Board in ordering demolition after expiry of a period of twelve months after completion of the building is illegal.
( 4 ) LEARNED Standing Counsel for the cantonment Board submits that the plan submitted by the petitioners was duly returned on 19. 9. 1992, but the same was not represented. Therefore, petitioners cannot take advantage of Section 181 (6) of the Act and make illegal construction under deemed permission, which is not available to the petitioners. Secondly he would submit that after noticing illegal construction a notice was issued on 31. 8. 2000 under Section 185 (1) of the Act, that petitioners also submitted explanation on 18. 9. 2000, and that even before waiting for any action thereon, present writ petition is filed suppress
