No Legal Right To Seek De-Sealing Of Property By Cantonment Board, When Building Plan Not Been Sanctioned: Supreme Court

The Supreme Court has held that a property sealed by Cantonment Board alleging unauthorized construction cannot be requested to be ‘de-sealed’, while the building plan of that Property has not yet been sanctioned by the Cantonment.

The Delhi Cantonment Board (DCB) issued notice to Petitioner for demolition of unauthorized structures in its property situated in Cantonment area. On the request of Petitioner, the Court directed the Cantonment Board to consider his building plan. While no sanction of the building plan was yet done, the Petitioner approached the Supreme Court seeking de-sealing of the subject property.

The Bench comprising of Justice C.T. Ravikumar and Justice Sanjay Kumar, while adjudicating an appeal filed in Ram Kishan (Deceased) through Legal Representatives & Anr. v Manish Kumar & Anr., has observed that, “We have already noted that the writ petitioner himself got no case that the building plan submitted by him was sanctioned. When it was not sanctioned and the direction to the DCB under Annexure P-3 order dated 25.09.2020 was only to consider the application for sanction of the building plan in accordance with the prevailing building regulations and bye laws, the writ petitioner cannot be allowed, now, to contend that the DCB got an obligation to de-seal the property of the writ petitioner.”

BACKGROUND FACTS

Mr. Ram Kishan (“Appellant”) owned a residential property situated in Delhi Cantonment area (“Suit Property”). The Delhi Cantonment Board (“DCB”) issued a Demolition Notice to the Appellant, alleging that he had carried out unauthorized construction without submitting building plans for sanction. The Appellant contended that the Suit Property did not fall within the jurisdiction of DCB.

The neighbour of the Appellant, namely Mr. Manish Kumar (“Respondent”) filed a civil suit in 2018 seeking injunction against the Appellant and sealing of the Suit Property.

After the demise of the Appellant, his son Mr. Parveen Kumar pursued the litigations as his legal heir. In 2020, Mr. Parveen filed a Special Leave Petition and a Writ Petition before the Supreme Court, which were clubbed together. Mr. Parveen had also filed an interim application in the said proceedings, in which one of the prayers was to ‘direct the DCB to de-seal the Suit Property after DCB sanctions the building plan for the same’.

When Mr. Parveen unconditionally accepted that Delhi Cantonment Board has jurisdiction over the Suit Property, the Supreme Court on 25.09.2020 permitted him to submit a building plan to DCB and DCB was directed to consider the same and pass an order.

Thereafter, Mr. Parveen filed an application under Section 151 of the Code of Civil Procedure, 1908 (“CPC”) seeking dismissal of the said Civil Suit and the application was dismissed vide order dated 13.04.2021. Mr. Parveen then filed a petition under Article 227 of the Constitution of India assailing the Order dated 13.04.2021. On 11.11.2021, the High Court dismissed the petition and confirmed the Trial Court’s order.

Manish Kumar (Respondent) filed an application under Order XIV Rule 5 of CPC in the Civil Suit, requesting deletion of Issue Nos.1 and 2 framed by Trial Court, under which it was to be decided whether Suit Property falls within jurisdiction of DCB. Since Mr. Parveen had admitted DCB’s jurisdiction, the Trial Court on 10.04.2023 deleted the Issue No. 1 and 2. Mr. Parveen challenged the order dated 10.04.2023 before the High Court and the latter upheld the Trial Court’s order.

Mr. Parveen (as Legal Heir) filed an appeal before the Supreme Court challenging the orders dated 11.11.2021 and 10.04.2023. A writ petition was also filed under Article 32 of the Constitution of India seeking issuance of writ of mandamus to Delhi Cantonment Board to de seal the Suit Property. The matters have been heard together.

SUPREME COURT VERDICT

The Bench perused the Section 250 of Cantonments Act, 2006 which provides that no proceedings arising out of notice/order under Cantonments Act can be entertained by Courts. It was opined that since no notice or order was issued against Mr. Manish to attract application of Section 250. Thus, the civil suit is not barred by Section 250.

“Going by the aforesaid provision the bar would apply in respect of any order or notice unless an appeal under Section 340 of the said Act is preferred and the same is disposed of by the Appellate Authority under sub-section 3 of Section 343 of the Act. The factual finding of the Trial Court is that no notice or order was issued against the first respondent herein/the plaintiff so as to attract the bar under Section 250 of the Act. This factual finding based on the provisions under Section 250 has been confirmed by the High Court as per the impugned judgment dated 10.04.2023.”

Accordingly, the Civil Appeals have been dismissed and deletion of the two issues is upheld.

No legal right to seek de-sealing of property when building plan has not been sanctioned

With regards to the writ petition, the Bench observed that in the writ proceedings before the High Court, the Mr. Parveen had filed an interim application seeking direction to DCB to “de-seal the property of the Petitioner, on the approval of the Petitioners’ building plan”. Further, Mr. Parveen had also unconditionally accepted that it comes under the jurisdiction of DCB.

There was nothing to show that the DCB has sanctioned the building plan submitted by Mr. Parveen, hence, the DCB is not obligated to de-seal the property.

“We have already noted that the writ petitioner himself got no case that the building plan submitted by him was sanctioned. When it was not sanctioned and the direction to the DCB under Annexure P-3 order dated 25.09.2020 was only to consider the application for sanction of the building plan in accordance with the prevailing building regulations and bye laws, the writ petitioner cannot be allowed, now, to contend that the DCB got an obligation to de-seal the property of the writ petitioner” the Bench held.

The Bench observed that the writ petition before the High Court was disposed of with a mere direction to DCB for considering Mr. Parveen’s application for sanction of Building Plan. As no legal right vests in Mr. Parveen to seek de-sealing, the writ of mandamus cannot be issued to DCB.

“There cannot be any doubt with respect to the fact that the question of de-sealing is also a matter which is intertwined with the issues arising for consideration in the pending Civil Suit, in view of the attendant circumstances. At any rate, in the light of Annexure P-3 order dated 25.09.2020, the writ petitioner is not legally entitled to seek such a prayer at this stage. In the said circumstances, the Writ Petition has to fail as the prayer sought for therein is not grantable at this stage.”

The writ petition has been dismissed.

Case Title: Ram Kishan (Deceased) through Legal Representatives & Anr. v Manish Kumar & Anr.

Citation: 2023 LiveLaw (SC) 568; 2023 INSC 640

Counsel for Appellants: Mr. Abhishek Sharma

Counsel for Respondents: Mrs. Avnish Ahlawat

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