Case Note & Summary
The dispute arose when the Pune Cantonment Board sought to demolish shops in a building constructed on property bearing House No.2147, Modikhana, within cantonment limits. The Board had granted building permission on 27 November 1996; construction commenced on 5 November 1997 and was to be completed within one year, but continued beyond 5 November 1998 without extension. The Board issued a notice under Section 185(1) of the Cantonments Act, 1924 to the promoter, Rashiklal Nahar, to stop erection, followed by a demolition notice under Section 256. The promoter filed a suit which was dismissed for non-prosecution in 2004. Subsequently, the respondent, who claimed to have purchased two shops from the promoter through his father via an agreement dated 29 May 1997 under the Maharashtra Ownership Flats Act, 1963, and who had been carrying on business there for over ten years, filed a suit for injunction. The trial court dismissed his interim injunction application, but the District Court allowed his appeal and restrained demolition. The Cantonment Board challenged that order. The High Court considered whether notice under Section 185 was required to be served on the respondent. The Board argued that notice was only necessary for the owner of the land (the promoter) and not for the shop purchaser. The respondent contended that he was the owner and no notice had been given to him. The Court, relying on the concept of dual ownership recognized in Commissioner of Income Tax Vs. Fazalbhoy Investment Co.Pvt Ltd, held that a flat purchaser under an agreement is prima facie the owner and thus entitled to notice under Section 185. Moreover, since the construction of the basement and ground floor was completed before the expiry of the building permission on 5 November 1998, it could not be treated as illegal. The Court found that the respondent had made out a prima facie case for injunction and that the witness testimony regarding the stage of construction was required. Consequently, the writ petition was dismissed, and the interim injunction was upheld.
Headnote
A) Property Law - Mandatory Notice Before Demolition - Section 185, Cantonments Act, 1924 - The Cantonment Board issued notice under Section 185 only to the promoter, not to the respondent shop purchaser. Court held that since respondent was prima facie owner under agreement of sale, notice was required to be served on him before demolition of his shops, consistent with the statutory requirement to direct owner, lessee or occupier. (Paras 5-6, 8). B) Property Law - Dual Ownership in Flat Purchases - Section 185, Cantonments Act, 1924 - Applying Commissioner of Income Tax Vs. Fazalbhoy Investment Co.Pvt Ltd, the court recognized the concept of dual ownership, holding that a flat purchaser under an agreement of sale with the promoter, who had paid consideration, is prima facie the owner, thus entitled to notice under Section 185. (Paras 6, 8). C) Building Regulations - Unauthorised Construction - Sections 184, 185, Cantonments Act, 1924 - The Cantonment Board sought to demolish construction carried out after expiry of building permission. However, the construction of basement and ground floor was completed while the permission was valid (till 5 November 1998), and thus could not be termed illegal; the question of which portion was erected unauthorisedly could only be determined after evidence. (Paras 8-9).
Issue of Consideration
Whether notice of demolition under Section 185 of the Cantonments Act, 1924 is required to be served on a purchaser of a shop in a building before demolition, when the original building permission had expired and the construction was allegedly unauthorised.
Final Decision
The writ petition is dismissed. No case for interference under Article 227 of the Constitution is made out. The interim injunction restraining demolition of the suit shops till the decision of the suit is upheld.
Law Points
- notice under Section 185 of the Cantonments Act required to owner
- lessee or occupier
- flat purchaser under agreement of sale is prima facie owner
- dual ownership concept recognised
- construction completed during validity of building permission cannot be demolished
- interim injunction appropriate when prima facie case exists
