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2016 Supreme(UK) 409
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SUDHANSHU DHULIA, J.
Dharam Singh - Petitioner
Versus
Union of India & another - Respondents
Writ Petition (M/S) No. 1866, 1867 of 2014
Decided on : 16-08-2016
Advocate Appeared:
For the Petitioner:Mr. Sharad Sharma, Senior Advocate assisted by Ms. Vandana Singh, Advocate
For the Respondent:Mr. A.D. Tripathi, Advocate, Mr. Sanjay Bhatt, Advocate
The court emphasized the importance of legal rights to property and the validity of notices under the relevant Cantonments Acts.
Headnote:
Cantonment Board - Unauthorized Constructions - Cantonments Act, 1924, Section 256; Cantonments Act, 2006, Section 320
Fact of the Case:
The petitioners challenged the notice to demolish unauthorized constructions on property belonging to the Cantonment Board. The petitioners had no legal right to the property and failed to explain their right for construction. The notices were issued under Section 256 of the repealed Cantonments Act, 1924, but the Chief Executive Officer clarified that they should be read as notices under Section 320 of the Cantonments Act, 2006.
Finding of the Court:
The court found that the petitioners had no legal right to the property and the notices were valid under the new Cantonments Act, 2006. The petitions were dismissed, and the interim order was vacated.
Issues: Challenge to demolition notices, validity of notices under old and new Cantonments Acts
Ratio Decidendi: The court held that the petitioners had no legal right to the property and that the notices were valid under the new Cantonments Act, 2006.
Final Decision: The writ petitions were dismissed, and the interim order was vacated. Respondent authorities were directed to take action against the petitioners in accordance with the law.
In both these writ petitions, the petitioners have challenged the notice dated 02.06.2014 and 01.08.2014 passed by the Chief Executive Officer, Cantonment Board, Ranikhet which is to the effect of demolishing the unauthorized constructions which the petitioners have made on the property of Cantonment Board. The property admittedly belongs to the Cantonment Board, Ranikhet and the same was never allotted or given to the petitioners on lease by the Cantonment Board at any point of time. The only right they claim is the right for construction which was allegedly given to them by one Madan Mohan Khulbey who was the original lessee of the property. The lease deed given in favour of Mr. Madan Mohan Khulbey had expired long back in the year 1960 and since then it has not been renewed. What right the petitioners have for making the alleged constructions if at all they had, has not been explained by them anywhere.
2. In fact, learned Senior Counsel for the petitioners Mr. Sharad Sharma has not been able to satisfy this Court as to under what provision of law the petitioners could have raised the construction on the property, on which they had absolutely no right at all, at any point of time.
3. One technical question though has been raised on behalf of the petitioners, which is that the notices given to them on 02.06.2014 and 01.08.2014 are actually under Section 256 of the Cantonments Act, 1924, which has already been repealed. The old Cantonments Act, 1924 stood repealed by the Cantonments Act, 2006 and the repealing and saving clause of the new Act (i.e., the Cantonments Act, 2006) clearly states as under:-
“360. Repeals and savings.- (1) The Cantonments Act, 1924 (2 of 1924), is hereby repealed.
(2) Notwithstanding the repeal of the Cantonments Act, 1924 (2 of 1924),-
(a) any appointment, notification, order, scheme, rule, form, notice or bye-law made or issued, and any licence or permission granted under the Act shall, in so far as it is not inconsistent with the provisions of this Act continue in force and be deemed to have been made, issued or granted, under the provisions of this Act, unless and until it is superseded by any appointment, notification, order, scheme, rule, form, notice or bye-law made or issued or any licence or permission granted under the said provisions;
(b) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Board shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Board constituted under this Act;
(c) all budget estimates, assessments, valuations, measurements or divisions made by the Board shall in so far as they are not inconsistent with the provisions of this Act, continue in force and be deemed to have been made under the provisions of this Act unless and until they are superseded by any budget estimate, assessment, valuation, measurement or division made by the Board constituted under the said provisions;
(d) all properties, movable and immovable and all interests of whatsoever nature and kind therein, vested in the Board shall with all rights of whatsoever description, use, enjoyed or possessed by the said Board vest in the Board constituted under this Act;
(e) all rates, taxes, fees, rents and other sums of money due to the Board shall be deemed to be due to the Board constituted under this Act;
(f) all rates, taxes, fees, rents, fares and other charges shall, until and unless they are varied by the Board constituted under this Act, continue to be levied at the same rate at which they were being levied by the Board immediately before the commencement of this Act;
(g) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Board may be constituted or instituted by or against the Board constituted under this Act.”
4. It appears that the petitioners have been given notices by the Cantonment Board under the Cantonmen
