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2014 Supreme(Del) 1489

High Court of Delhi
HIMA KOHLI, J.
Sanjeev Bhatiani
Versus
Union of India & Another
W.P. (C) Nos. 6643, 6644, 6646, 6647, 6648, 6649, 6655 & 6584 of 2013
Decided on: 26-05-2014

Advocate Appeared:
For the Petitioner:Shekhar Nanavaty, Advocate.
For the Respondents:R1, Himanshu Bajaj, R2, Sunil Satyarthi, Advocates.

Headnote:

Cantonments Act, 2006 - Sections 340, 248, 320 - Quashing - Erection of building - Notice - Opportunity of hearing - Petitions filed against the respondent No.1 (UOI) and the respondent No.2/DCB - Orders passed by the respondent No.2 on different dates in respect of the subject premises under Sections 340, 248 and 320 of the Cantonments Act - Prayer for quashing of the order - Petitioner is the occupant of the subject premises - CEO of the respondent No.2/DCB had directed the petitioner to stop any erection/re-erection at the subject property - In case the erection had been completed the same should be demolished - Requirement of an opportunity of hearing being given to the petitioner before an order of demolition was passed by the respondent No.2/Board was a prerequisite - Notices issued by the CEO had been communicated to the petitioner hardly leaving any scope for treating the same to be notices to show cause and not as orders - Impugned orders passed by the CEO under Section 248 (1) of the Act shall be treated as notices to show cause addressed to the petitioner - Petitioner shall file replies to the aforesaid notices within four weeks - After the replies a date of hearing is afforded to the petitioner - Competent authority shall pass appropriate orders in accordance with law - Orders passed by the appellate authority under Sections 340 and 320 of the Act are quashed - Petitions are disposed of.

Judgment

Hima Kohli, J.

1. By this common order, the Court proposes to dispose of eight petitions filed by the same petitioner against the respondent No.1/Union of India (UOI) and the respondent No.2/Delhi Cantonment Board (DCB), in respect of the same property, seeking the same relief.

2. The present petitions have been filed by the petitioner in respect of premises bearing No.III/1/2E, Shastri Bazar, situated in the Delhi Cantonment area praying inter alia that the orders passed by the respondent No.2/DCB on different dates in respect of the subject premises under Sections 340, 248 and 320 of the Cantonments Act, 2006 (hereinafter referred to as ‘the Act’), be quashed.

3. Briefly stated the facts of the case are that the petitioner is the occupant of the subject premises that is governed by the Act. Vide communication dated 13.7.2012, described as a “Notice”, the Chief Executive Officer of the respondent No.2/DCB, in exercise of the powers conferred upon him under Section 248 (1) of the Act, had directed the petitioner to stop any erection/re-erection at the subject property and further, in case the erection had been completed by him, it was directed that the same should be demolished within thirty days from the date of receipt of the said notice.

4. The aforesaid notice issued to the petitioner was followed up by similar notices subsequently issued to him at different stages of the construction, including notices dated 13.07.2012, 16.07.2012, 23.07.2012, 08.08.2012, 22.08.2012, 27.08.2013, 03.09.2012 and 14.09.2012. Each notice refers to the nature of the construction being undertaken by the petitioner in the subject premises. From a perusal of the above mentioned notices, it is apparent that between 13.7.2012 and 14.9.2012, the petitioner had cast the RCC columns at the subject premises, followed by raising of brick walls, undertaking excavation in the column footings, then erecting RCC slabs over the columns and raising brick walls, providing the RCC roof on the first floor, undertaking brick work on the first floor and further, casting a RCC roof on the first floor, for purposes of constructing a second floor.

5. Aggrieved by the aforesaid notice issued by the CEO of the respondent No.2/DCB under Section 248 (1) of the Act, the petitioner had preferred separate appeals under Section 340 of the Act before the appellate authority, namely, the Principle Director, Defence Estate, Western Command, Chandigarh.

6. Contemporaneously, the petitioner had filed a writ petition in this Court, registered as WP(C)No.3104/2013, seeking quashing of the notices issued by the CEO of the respondent No.2/DCB under Section 248 (1) of the Act. After taking note of the facts of the case and having regard to the fact that the petitioner had already preferred statutory appeals before the appellate authority well before filing the writ petition, the Court was of the opinion that it was not open for him to challenge the notices issued to him by the CEO of the respondent No.2/DCB in writ proceedings. It was also observed that only in the event the petitioner fails in the appeals filed by him, could he seek his legal remedies in a writ petition. As a result, vide order dated 13.5.2013, the writ petition was dismissed.

7. Thereafter, the petitioner continued to pursue the eight appeals that had been filed by him against the eight separate notices issued to him under Section 248(1) of the Act. The said appeals were decided by the appellate authority, namely, the Principle Director, Defence Estate, Western Command, Chandigarh, by passing eight separate orders, the first one dated 22.7.2013. Four of the appeals filed by the petitioner were disposed of by passing four orders, all dated 23.7.2013. Two appeals were disposed of by passing two orders, both dated 24.7.2013 and the last appeal was disposed of, vide order dated 6.8.2013 (Annexure P-5 colly).

8. By the aforesaid orders, the notices issued by the CEO of the respondent No.2/DCB under Section 248 (1)




















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