Himachal Pradesh High Court
Date Of Decision: 19.12.2024 vs Union Of India & Ors on 19 December, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:15222
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.8296 of 2023
Date of Decision: 19.12.2024
_____________________________________________________________________
Rakesh Singla & Anr.
.........Petitioners
Versus
Union of India & Ors.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioners: Mr. Sunil Mohan Goel, Senior Advocate, with
Mr. Paras Dhaulta, Advocate.
For the respondents: Mr. Shashi Shirshoo, Central Government
Counsel.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated
20.03.2023 (Annexure P-9), whereby direction came to be issued to
seal the unauthorized construction allegedly carried out by the
petitioners in the property comprised in Survey No. 67 and shop No. 4
measuring 6392 sq. feet, petitioners have approached this Court in the
instant proceedings filed under Article 226 of the Constitution of India,
praying therein for the following main reliefs:
“(a) That Hon’ble Court may be pleased to issue writ of
certiorari quashing the impugned order No. CBS/9/4-Out/77
dated 20.03.2023 under Sections 249, 305 read with Section
309 and 311 of the Cantonment Act, 2006 whereby the property
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2024:HHC:15222of the petitioners have been illegally ordered to be sealed by
respondent No.2.
(b) That this Hon’ble Court may further be pleased to issue
writ of certiorari quashing impugned notice dated 21.03.2023
issued under Section 248 of the Cantonment Act, 2006 by
respondent No. 2.
(c) That this Hon’ble Court in the alternative may be pleased
to issue writ of mandamus directing the respondent No. 3 to
decide the appeal filed by the petitioners under Section 3 of the
Cantonment Act, 2006 pending before General Commanding in
Chief, Western Command, Chandimandir, Panchkula, Haryana
titled Rakesh Singla & Anr. Vs. Cantonment Board Subathu.”
2. Pursuant to notices issued in the instant proceedings,
respondents have filed reply, wherein specific objection with regard to
maintainability of present petition has been raised. Since the
petitioners herein have already filed an appeal under Section 185 of
Cantonment Act, 1994 (now Section 346 of the Cantonments Act,
2006) before Appellate Authority i.e. General Commanding in Chief,
Western Command, Chandimandir, Panchkula, Haryana, and such
appeal is pending, prayer has been made to dismiss the petition.
3. While fairly acknowledging factum with regard filing of
appeal against the order impugned in the instant proceedings, Mr.
Sunil Mohan Goel, learned Senior Counsel representing petitioners,
states that appeal was filed on 17.04.2023, but till date same has not
been disposed of, as a result thereof, petitioners are suffering
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endlessly. He further states that since bare perusal of reply filed by the
respondents itself suggests that petitioners herein have allegedly
unauthorizedly raised the height of the roof, coupled with the fact that
such unauthorized construction raised by the petitioners has already
been removed, this Court with a view to cut short the controversy may
direct CEO, Cantonment Board, Subathu i.e. respondent No. 2 to
reinspect the site and in case, he is satisfied that unauthorized
construction allegedly made by the petitioners stands removed, show
cause notice, thereby ordering sealing of property may be revoked by
him.
4. While responding to aforesaid submission made by
learned Senior Counsel for the petitioners, Mr. Shashi Shirshoo,
learned Central Government Counsel, states that since petitioners
have already laid challenge to order impugned in the instant
proceedings before Appellate Authority, it may not be appropriate for
CEO, Cantonment Board, Subathu, to re-look into the matter, rather
in that regard, specific orders are required to be passed by the
appellate authority, which is otherwise seized of the matter.
5. Having heard learned counsel for the parties and perused
material available on record, this Court finds that petitioners herein,
who are lease holders of occupancy rights qua property comprised in
Survey No. 67 have allegedly raised height of their roof without taking
necessary permission from the competent authority. Though careful
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2024:HHC:15222
perusal of documents adduced on record reveals that petitioners
herein had applied for repair/conversion of existing wooden planks,
rafters/wooden roof into RCC slab, but before such prayer of them
could be considered, they proceeded to raise the height of the roof, as
a result thereof, respondent No. 2 had no option, but to order sealing
of unauthorized construction. Though petitioners herein being
aggrieved with the order of sealing of property have already filed an
appeal before Appellate Authority, but since same is not being decided
expeditiously, prayer has been made on their behalf to direct CEO,
Cantonment Board, Subathu, to reinspect the site so that factum with
regard to removal of unauthorized construction is ascertained.
6. Since petitioners have nowhere disputed factum with
regard to raising of unauthorized construction of the roof and they
have already removed such unauthorized construction, coupled with
the fact that rest of unauthorized construction, if any, raised, can be
regularized in terms of letter dated 10.12.2019, this Court finds no
impediment in issuing direction to CEO, Cantonment Board, Subathu,
to reinspect the premises so that factum of removal of unauthorized
construction is ascertained. Since final decision, if any, with regard to
removal of unauthorized construction is to be taken by the CEO of the
respective cantonment, pendency of appeal filed at the behest of the
petitioners herein may not be of much consequences, rather same can
subsequently be withdrawn by the petitioners, if they are able to show
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2024:HHC:15222
to the CEO, Cantonment Board, Subathu, that they have removed the
unauthorized construction.
7. Consequently, in view of above, present petition is
disposed of with a direction to CEO, Contonment Board Subathu to
reinspect the premises of the petitioners and in case, he is satisfied
that unauthorized construction has been removed, he may proceed to
withdraw the sealing order. Needless to say, CEO, Contonment Board,
Subathu, would withdraw the sealing order, only in case he is satisfied
that unauthorized construction on the spot has been removed, failing
which, afore authority would be at liberty to take action in accordance
with law. Pending application, if any, stand disposed of.
December 19, 2024 (Sandeep Sharma), (Sunil) Judge
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