The main legal point established in the judgment is the requirement of issuing a notice of demolition under Section 185 of the Cantonments Act and the validity of construction completed before the expiry of the building permission.

1. This petition is directed against an order dated 18 June 2010 passed by the learned District Judge-5, Pune allowing the Miscellaneous Civil Appeal filed by respondent and thereby granting an interim injunction restraining the petitioner from demolishing the suit premises till the decision of the suit.

2. On 27 November 1996, the petitioner Pune Cantonment Board granted to the owners permission for construction of a building on the property bearing House No.2147, Modikhana, situated within its limits. In accordance with the said building permission, the owner/promoter commenced construction of a building and intimated to the petitioner (hereinafter referred to as “Cantonment Board”) that he had commenced the construction on or about 5 November 1997. According to the Cantonment Board, the building construction ought to have completed within a period of one year of the commencement. However, the construction was not so completed and was continued beyond the period of one year without seeking any extension after 5 November 1998. The Cantonment Board, therefore, issued a notice purporting to be a notice u/s.185(1) of the Cantonments Act, 1924 addressed to Mr.Rashiklal Nahar, the promoter, to stop erection/re-erection of the building. The noticee did not pay any heed to the notice and continued the construction. Consequently, the Cantonment Board issued another notice on 1 September 1999 purporting to be a notice u/s.256 of the Cantonment’s Act, 1924 intimating to him that the unauthorized construction would be removed on or after 10 days. It appears that Mr.Nahar then filed a suit against the Cantonment Board for an injunction restraining it from demolishing the construction. An interim relief was initially granted but the suit was dismissed on 15 December 2004 for non appearance of the plaintiff. It appears that thereafter the respondent no.1 who claims to have purchased 2 shops in the building filed another suit, bearing RCS No.548 of 2010, for an injunction restraining the Cantonment Board from demolishing his shops. By an order dated 4 May 2010, the trial Court dismissed the application for interim injunction. However, an appeal filed by the respondent was allowed by the District Court by an order dated 18 June 2010. The appellate Court granted an injunction restraining the Cantonment Board from demolishing the suit shops till the disposal of the suit. That order is impugned in this petition.

3. The case of the respondent is that his father had purchased the suit shops from the promoter/developer by an agreement dated 29 May 1997 executed under the provisions of Maharashtra Ownership Flats Act, 1963. On death of his father Motilal on 29 July 2008, the respondent had inherited the suit shops and was the owner thereof. He was carrying on business in the suit shops for more than 10 years since the death of his father. No notice whatsoever was served either on him or his father and the Cantonment Board has no authority to demolish the suit shops without notice to him.

4. Mr.Presswalla, learned counsel for the petitioner submitted that at the time when the notice u/s.185 of the Cantonments Act 1924 was issued, the respondent or his father was not the owner of the shop and therefore, it was not necessary to issue any notice to them. He submitted that on the date of the notice, building was under construction and therefore also, it was not necessary to issue notice to the respondent or his father who might have purchased the suit shops from the promoter. The notice issued only to the promoter was valid and no injunction could be granted restraining the Cantonment Board from demolishing the construction which was carried out unauthorisedly after expiry of the building permission.

5. The notice u/s.185 was preceded by a letter dated 31 May 1999 addressed to Mr.Nahar. The letter states that the site was inspected by officers of the Cantonment Board and it was noticed that the construction of RCC frame structure for basemen