Supreme Court of India

THE CANTONMENT BOARD. JABALPLIR AND ORS.versusSRI S.N. AWASTHI AND ORS.

Citation: 1995 INSC 680
Decided: 2 November 1995
Disposal: Disposed off
Bench: K RAMASWAMYB L HANSARIA

Holding

The sanction granted without prior approval of the Defence Estates Officer under Section 181(3) was per se illegal, making the Board’s cancellation valid, and the respondents must seek a fresh sanction complying with the statutory condition.

Summary

The Jabalpur Cantonment Board had initially granted permission to S.N. Awasthi and others to construct a building, but later cancelled it. The respondents challenged the cancellation before the High Court, which set aside the cancellation on grounds of natural justice, lack of distinction between the Military Estates Officer and Defence Estates Officer, and equity. On appeal, the Supreme Court held that under Section 181(3) of the Jabalpur Cantonment Board Act, any erection of a building requires prior approval from the Defence Estates Officer, a condition that was never fulfilled, rendering the original sanction illegal. Consequently, the Board’s cancellation was valid, but the Court directed the respondents to file a fresh application complying with the statutory requirement. No prior notice before cancellation was required given the illegality of the original sanction, and the Court emphasized that construction in violation of law cannot be protected by equity.

Issues considered

The legality of the Cantonment Board's cancellation of the construction permission without prior notice.
Whether the original sanction was valid without prior approval of the Defence Estates Officer under Section 181(3).
The applicability of natural justice principles in cancelling the permission.
The appropriate remedy for the respondents after the cancellation.

Legislation cited

Subjects

Cantonment BoardConstruction permissionSection 181Defence Estates OfficerNatural justiceStatutory conditionCancellationFresh application

Judgment

THE CANTONMENT BOARD. JABALPLIR AND ORS. A
\',.

SRI S.N. AWASTHI AND ORS.

NOVEMBER 2, 199.1

[K. RAMASWAMY AND B.L. HANSARIA, .I.I.[ B

la/Jaipur ('antonn1enl Board At! :

S.181 (3)-Permission to cons/met building grallted by the Board-Later
on pennission 1vas cancelled-Since c"ondition 11recedent not sati.\jled viz. C
sanclion of Defence Eslalcs Officer not obtained-Held : Sanction accorded
earlier was jJer se illegal-Since no vppo1tunity was afforded before cance/la-
tfrJn pa1ty directed to jllc a fresh application and Board to consider the sanie
and pass order.

The appellant-Board had granted permission to the Respondents for D
construction of a building, but later on cancelled the same. Challenging
the cancellation the respondents filed a writ petition in the High Court,
which was allo\.l'ed on three grounds, viz. (i) that sanction having been
granted its cancellation llithout giving an opportunity was in violation of
the principles of natural justice; (ii) that the appellants had not specified E
the distinction bet\veen '~lilitary Estates Oflicer' and 'Defence Estates
Otlicer' for the latter to get pcnver to cancel the per1nission; and that since
the respondents had started construction, on principles of ec1uity, tht'
cancellation \\'as not justilied. Hence this appeal.

Disposing of the appeal, lhi~ l:ourt F

HELD : 1. The land b situated \\ithin the Cantonment Area. There-
fore, the title in the land stands vested in the Cantonment Board. What a
person in la\l1'ul po.ssession \vould be entitled to enjoy is the lease-hold
rights thereon subject to the conditions mentioned therein. For the erec-
lion or re-erection of a building, a licence from the Cantoruncnt Board is G
rec1uired as a pre-condition under the Act. Section 181 of the Jabalpur
Cantonment Board Act in that behalf cover~ tht fitld. Thl· At.:t \\'ii~ ~1111~
St'l(Utntly antt'nded substituting liH· lht: "·ords "l'vlilitary Est all' ( lllicer',
'Defence Estates ()flicer'. Thus, as on ()ctoher 1, 1983 thl:' ton1pt·tt·11t ~1tfictT
to be consulted as a condition tu grant )Jern1ission by the t'antonn1t:nl lJ
73'J
740 SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A Board for erection or re-erection of building by the Board was the 'Defence
Estates ()tlicer'. Admittecll)', prior·permission was not obtained from him.
It is also on record that G.O.C. in Chief had suspended the Resolution by
proceedings dated June 22, 1991 and he passed the order directing the
Cantonment Board to reconsider the matter and pursuant thereto, the
Board had cancelled the sanction. Since the condition precedent of prior
B sanction of Defence Estates Officer under sub-section (3) of Section 181
had not been obtained, the sanction for construction of the house granted
by the Cantonment Board was per se illegal. [741-F, 742-B-C]

2. No prior notice, before cancellation by the Board, was given to the
C respondents. In view of the fact that statutory condition has not been
complied, this Court does not like to have the proceedings delayed by
directing the Board to give an opportunity to pass fresh order. The proper
course would be to direct the respondents to make an application afresh
and the same would be considered by the Board according to law and
D would be disposed of. The Board would consider the same within one
month from the date of the application and should make reference within
15 days thereafter to the 'Defonce Estates Ollicer' for appropriate sanc-
tion, who would then take action under Section 181 (3) of the Act within
one month. On return thereof, final order would be passed by the Canton-
inent Board within one month from the date of receipt of the order passed
E by the Defence Estates Officer. [742-D-E]

3. In case the Board or the Defence Estate Officer would be inclined
to reject the application for sanction, they should give reasons in support
thereof. Along with the application, the respondents would be at liberty to
F file all their documents in support of their claim for sanction. [742-F)

4. Construction made in contravention of law would not be a
premium to extend equity so as to fecilitate violation of mandatory require-
ments of law. The High Court, therefore, was not justified in extending
equity for completion of construction. [742-G]
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10281 of
1995.

From the Judgment and Order dated 2.3.94 of the Madhya Pradesh
H High Court in M.P. No. 2233 of 1991.

•
CANTONMENT BOARD v. S.N. AWASTHI 741

V.R. Reddy, Additional Solicitor General, P.S. Nair and T.G. N. A
Nair, for the Appellants.

U.R. Lalit and AK. Chitale and Niraj Sharma for the Respondents.

The following Order of the Court was delivered :
B
Leave granted.

This appeal by special leave arises from the order of the High Court
of Madhya Pradesh dated.March 2, 1992 passed in Misc. Petition No. 2233
of 1991.
c
The Cantonment Board through its Resolution No. 10 dated 30th
March, 1990 had granted permission for construction of a building which
later on was cancelled by another proceedings dat•d July 5, 1991. Calling
in question of the cancellation, the respondents filed the writ petition. The
High Court allowed the writ petition on three grounds, viz., that the
sanction having been granted in favour of the respondents, cancellation
.D
thereof without giving an opportunity would be in violation of the principles
of natural justice. It was also held that the appellants had not specified the
distinction between the 'Military Estates Officer' and the 'Defence Estates
Officer' for the latter to get power to cancel the permission. Further, it was
already held that in equity, since the respondents had started construction, E
the cancellation was not justified.

It is not in dispute and in fact cannot be disputed that the land is
situated within the Cantonment Area. Therefore, the title in the land stands
vested in the Cantonment Board. What a person in lawful possession would
be entitled to enjoy is the lease-hold rights thereon subject lo the condi- F
tions mentioned therein. For the erection or re-erection of a building, a
licence from the Cantonment Board is required as a pre-condition under
the Act. Section 181 of the Act in that behalf covers the field. Sub-section
(3) thereof reads thus :

"(3) The Board, before sanction the erection or re' erection of a G
building on land which is under the management of the Military
Estates Officer, shall refer the application to the Military Estates
Officer for ascertaining whether there is any objection on the part
of the Government to such erection or re-erection; and the
Military Estates Officer shall retUrn the application together with H
742 SUPREME COURT REPORTS J1995] SUPP. 4 S.C.R.

A his report thereon to the Board within .>O days after it has hccn
receivl'd by hin1."

The Act \Vas subsequently an1cndcd by A1ncnd111cnt AcL No. Hi of
1983 \vhich can1t.; into force vv.c.f. (Jctober 1, l'J83 substituting fl)r the \Von.Is
'Military Estate ()fficer' 1 'Defence Estates ()fficc:r'. Thus, as on ()ctobcr :I,
B 1983 the competent officer lo be consulted as a condition to grant permis-
sion by the Cantonment Board for erection or re-erection of building by
the Board was the 'Defence Estates Officer'. Admittedly, prior permission
was not obtained from him. It is also on record that G.O.C.-in-Chief had
suspended the Resolution by proceedings dated June 22, 1991 and he
passed the order directing the Cantonment Board lo reconsider the matter
c and "pursuant thereto, the Board had cancelled the sanction. Since the
condition precedent of prior sanction of Defence Estate Oflicer under
suh-sec\ion (3) of Section 181 had not been obtained, the sanction for
construction of the house granted by the Cantonment Board was per se
illegal. It is true that no prior notice, before cancellation by the board, was
D given to the respondents. In view of the fact that statutory condition has
not been complied, we do not like to have the proceedings delayed by
directing the Board to give an opportunity to pass fresh order. Instead, we
think that the proper course would be to direct the respondents to make
an application afresh and the same would be considered by the Board
according to law and would be disposed of. The Board would consider the
E same within one month from the date of the application and should make
reference within 15 days thereafter to the 'Defence Estates Officer' for
appropriate sanction who would then take action under Section 181 (3) of
the Act within one month. On return thereof, final order would be passed
by the Cantonment Board within one month from the date of receipt of
the order passed by the Defence Estates ()fficer. lt is needless to mention
F that in case the Board or the Defence Estates Officer would he inclined
lo reject the application for sanction, they should give reasons in support
thereof. It is also needless to mention that along with the application, the
respondents would be at liberty to file all their documents in support of
their clain1 for sanction. Construction made in contravention of la\v would
G not be a premium to extend equity so as to fecilitate violation of mandatory
requirements of law. The High Court, therefore, was not justified in
extending equity for completion of construction.

The appeal is disposed of accordingly. No costs.

G.N. Appeal disposed of.

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