Javid Ahad War Vs U.O.I Th.Secretary Ministry of Defenc and Ors. — J&K HC (2024) — LawSathi Research

Javid Ahad War Vs U.O.I Th.Secretary Ministry of Defenc and Ors. — J&K HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

None to the petitioner; respondents given liberty to proceed in the matter strictly in accordance with law.

Issue for consideration

Whether the notice dated 24.08.2024 issued under Section 320 of the Cantonment Act, 2006, calling upon the petitioner to demolish alleged unauthorised construction, should be quashed, together with a direction restraining the respondents from issuing any demolition notice with regard to property owned by some other person. +2 more

Court's answer

A notice for demolition of erection or re-erection regarded by the Board as an offence may, under Section 248 of the Cantonment Act, 2006, be issued to the owner, lessee or occupier; accordingly, non-compliance with the Section 248 notice properly led to issuance of the notice under Section 320 to the petitioner.

Ratio / Principle

As the petitioner admittedly is the tenant, i.e. occupier, of the building for which the notice was issued, he had to avail the remedy available against the show-cause notice, which he failed to do; hence he cannot obtain quashing of the subsequent notice in writ jurisdiction.

Key takeaways

The name of the owner was neither known to learned counsel nor mentioned in the petition, and nothing was placed on record to show that the petitioner was not acting against the provisions of the Act; the petitioner thereby delayed compliance of the order.ratio¶32
The instant writ petition, filed nearly one and a half months after issuance of the notice, appears to have been instituted to delay implementation of the impugned notice.ratio¶33
The writ petition, being without any merit, is dismissed; the respondents are at liberty to proceed in the matter strictly in accordance with law.

Detailed headnote1 paragraphs

Writ Petition dismissed — Cantonment Act, 2006, Ss. 248, 320 — Demolition of unauthorised construction. Petitioner, a tenant occupying premises at Sonwar Bagh, Srinagar, sought quashing of a notice dated 24.08.2024 issued under S.320 of the Cantonment Act, 2006 (issued consequent to his non-compliance with an earlier S.248 notice of the Badambagh Cantonment Board requiring demolition of unauthorised construction), together with restraint on future demolition notices over property owned by another person. Held: S.248 permits a demolition/alteration notice to be issued to the owner, lessee or occupier where the Board treats the erection or re-erection as an offence; the petitioner admittedly being the occupier was required to avail the remedy available against the show-cause notice, which he failed to do; with the petition filed about one and a half months after the notice, no owner identified, and nothing on record showing he was not acting against the Act, the petition appeared designed merely to delay implementation of the notice. Writ petition dismissed as devoid of merit; respondents at liberty to proceed strictly in accordance with law. (Sindhu Sharma, J.; 09.10.2024.)

S. No. 98 Suppl. Cause List

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

WP(C) No. 2278/2024 CM No. 6117/2024

Javid Ahad War

…Appellant/Petitioner(s)

Through: Mr. Yawar Khan, Adv.

Vs.

Union of India through Secretary Ministry of Defence and Ors.

...Respondent(s)

Through: Mr. T. M. Shamsi, DSGI with Ms. Bisma Ali, Adv.

CORAM:

HON’BLE MS JUSTICE SINDHU SHARMA, JUDGE

O R D E R 09.10.2024

Petitioner seeks quashing of Notice under Section 320 of the Cantonment Act, 2006 (41 of 2006) vide No.

4/16/4277/CB/BB/289/430 dated 24.08.2024.

The contention of the petitioner is that he is residing in a rented accommodation at Sonwar Bagh, Srinagar. The respondents 2 and 3 at the instance of some of his neighbours have been issuing notices to him for demolition of construction raised over the two storeyed residential house.

The petitioner submits that he does not own the said property nor is raising any construction on spot. The respondents have issued the impugned notice to harass the petitioner without following principles of natural justice in a mechanical manner.

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The petitioner, thus, seeks quashing of impugned notice with a further direction to respondents not to issue any demolition notice with regard to property owned by some other person.

Notice under Section 320 of Cantonment Act, 2006, was issued to petitioner for non-compliance of notice issued by the Badambagh Cantonment Board. Perusal of notice reflects that the petitioner had failed to comply notice under Section 248 of the Cantonment Act, for demolition of unauthorized construction. Therefore, notice dated 24.08.2024 under Section 320 of the Cantonment Act, has been issued to petitioner to demolish unauthorized construction within 10 days’, failing which the same would be completed at your own cost.

This petition has been filed nearly one and half month after the issuance of notice. Section 248 of the Act, provided for power to stop erection of re-erection to demolish which reads as under:

“ 248. Power to stop erection or re-erection or to demolish .(1) The Board may, at any time, by notice in writing, direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board considers that such erection or re-erection is an offence under section 247 and may, in any such case or in any other case in which the Board considers that the erection or re-erection of a building is an offence under section 247, within twelve months of the completion of such erection or re-erection in like manner, direct the alteration or demolition, as it thinks necessary, of the building, or any part thereof, so erected or re-erected:

Provided that the Board may, instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable: Provided further that the Board shall not, without the previous concurrence of the General Officer Commanding-in-Chief, the Command, accept any sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board.

(2) A Board shall by notice in writing direct the owner, lessee or occupier of any land in the cantonment to stop the erection or reerection of a building in any case in which the order under section 238 sanctioning the erection or re-erection has been suspended by the General Officer Commanding-in-Chief, the Command, under clause (b) of sub-section (1) of section 58, and shall in any such case in like manner direct the demolition or alteration, as the case may

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be, of the building or any part thereof so erected or re-erected where the General Officer Commanding-in-Chief, the Command, thereafter directs that the order of the Board sanctioning the erection or reerection of the building shall not be carried into effect or shall be carried into effect with modifications specified by him:

Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or alteration of any building which has been erected or re-erected prior to the date on which the order of the General Officer Commanding-in-Chief, the Command, has been communicated to him”.

Thus, notice for demolish erection or re-erection can be issued to the owner, lessee or occupier where the Board considers it as an offence. The non-compliance of notice under Section 248 led to issuance of notice under Section 320 to the petitioner.

The petitioner admittedly is a tenant, i.e. occupier of the building for which the notice has been issued, as such, had to avail the remedy available to him for the show cause notice which he has failed.

Learned counsel for the petitioner was asked about the name of the owner but he submitted that he has no knowledge. There is no mention of the same in the petition. The petitioner having failed to avail the remedy against the notice under Section 248 and considering the delay qua the notice, coupled with the fact that nothing has been placed on record to show that petitioner is not acting against the provisions of the Act. The petitioner delay’s the compliance of order.

In this view of the matter, it appears that petitioner has filed instant writ petition to delay the implementation of impugned notice. Therefore, this writ petition is dismissed being without any merit. The respondents are at liberty to proceed in the matter strictly in accordance with law.

(SINDHU SHARMA) JUDGE

SRINAGAR

09.10.2024 Manzoor

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Manzoor Ul Hassan Dar I attest to the accuracy and authenticity of this document Srinagar 22.10.2024 09:51

WP(C) No. 2278/2024 CM No. 6117/2024