Case Note & Summary
The dispute arose from a building permission granted by the Cantonment Board, Jabalpur, and its subsequent cancellation, leading to a writ petition before the Madhya Pradesh High Court and an appeal by special leave to the Supreme Court. The respondents, Sri S.N. Awasthi and others, had obtained permission from the Cantonment Board through Resolution No. 10 dated 30 March 1990 to construct a building on land situated within the cantonment area. The land was vested in the Cantonment Board, and the respondents possessed leasehold rights subject to conditions. Under Section 181 of the Cantonments Act, 1924, a licence from the Board was required for erection or re-erection of a building. Sub-section (3) mandated that before sanctioning such construction on land under the management of the Military Estates Officer, the Board must refer the application to that officer for any government objection, and the officer had to return the application with a report within 30 days. By Amendment Act No. 16 of 1983, effective 1 October 1983, the term 'Military Estates Officer' was replaced by 'Defence Estates Officer'. It was admitted that the Cantonment Board had not obtained prior permission from the Defence Estates Officer before granting the sanction. Subsequently, the G.O.C.-in-Chief suspended the resolution by proceedings dated 22 June 1991 and directed the Board to reconsider the matter, after which the Board cancelled the sanction on 5 July 1991. The respondents challenged the cancellation in the High Court, which allowed the writ petition on three grounds: violation of natural justice due to lack of opportunity, failure to distinguish between Military Estates Officer and Defence Estates Officer, and equity in favour of the respondents who had started construction. The Supreme Court examined the statutory scheme and held that the condition precedent of prior sanction from the Defence Estates Officer under Section 181(3) had not been obtained, rendering the sanction per se illegal. The Court acknowledged that no prior notice was given before cancellation but declined to remand the matter for that purpose, as the mandatory statutory requirement had not been fulfilled and further delay was not warranted. Instead, the Court directed the respondents to file a fresh application, which the Board was to consider within one month, refer to the Defence Estates Officer within 15 days, who would then act under Section 181(3) within one month, and the Board would pass a final order within one month of receiving the Defence Estates Officer's order. The Court further directed that if either authority inclined to reject the application, reasons must be given, and the respondents were at liberty to file all supporting documents. The Supreme Court held that construction in contravention of law could not be a basis to extend equity, and the High Court was not justified in extending equity for completion of construction. The appeal was disposed of accordingly with no order as to costs.
Headnote
A) Cantonment Law - Building Sanction - Mandatory prior consultation with Defence Estates Officer under Section 181(3) Cantonments Act, 1924 - Cantonment Board's sanction for construction on land under management of Military/Defence Estates Officer was illegal absent prior reference to Defence Estates Officer - The Board's resolution granting permission was cancelled after G.O.C.-in-Chief suspended the resolution; Supreme Court held that since the mandatory statutory condition under Section 181(3) was not complied with, the sanction was per se illegal and the High Court erred in quashing cancellation - Held that fresh application should be made and considered according to law (Para 1). B) Natural Justice - Cancellation without notice - Principles of natural justice - Supreme Court acknowledged no prior notice was given before cancellation but declined to remand for that reason because statutory condition was not fulfilled - Held that where a mandatory statutory requirement has not been complied with, delay for opportunity is not warranted; directed fresh consideration with reasons if rejected (Para 1). C) Equity - Construction in contravention of law - Equity cannot facilitate violation of mandatory requirements - High Court had extended equity because respondents started construction; Supreme Court held construction in contravention of law is not a premium to extend equity; equity cannot override mandatory law - Held that High Court was not justified in extending equity for completion of construction (Para 1).
Issue of Consideration
Whether the High Court was justified in quashing the cancellation of a building sanction when the mandatory prior reference to the Defence Estates Officer under Section 181(3) of the Cantonments Act, 1924 was not obtained by the Cantonment Board.
Final Decision
Appeal disposed of; High Court order set aside; respondents directed to make fresh application; Board to consider within one month, refer to Defence Estates Officer within 15 days, Defence Estates Officer to act within one month, Board to pass final order within one month thereafter; if rejecting, reasons must be given; no costs.
Law Points
- Mandatory prior consultation with Defence Estates Officer under Section 181(3) of Cantonments Act
- 1924 is a condition precedent for building sanction
- non-compliance renders sanction per se illegal
- construction in contravention of law does not warrant equitable relief
- equity cannot facilitate violation of mandatory statutory requirements
- High Court cannot extend equity to cure non-compliance with mandatory law.
