2025:UHC:3402-DB HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE JUSTICE SRI MANOJ KUMAR TIWARI AND HON’BLE JUSTICE SRI ASHISH NAITHANI Special Appeal No. 280 of 2016 Rajendra Singh and another -Appellants Versus Union of India and another --Respondents -------------------------------------------------------------------- Presence:- Mr. Aditya Singh, Advocate for the appellants Mr. Sanjay Bhatt, Advocate for the Cantonment Board/respondent No. 2 Mr. A.D. Tripathi, Advocate for the intervener -------------------------------------------------------------------- The Court made the following: JUDGMENT: (per Hon’ble Justice Sri Manoj Kumar Tiwari) 1. Appellants filed Writ Petition (M/S) No. 1866 of 2014, challenging notices issued by Chief Executive Officer, Cantonment Board, Ranikhet on 02.06.2014 and 01.08.2014. By the said notices, they were asked to remove unauthorized construction, raised by them in building No. 102, situate in Deolikhet, Ranikhet, District Almora. The writ petition was dismissed by the learned Single Judge vide judgment dated 16.08.2016, which is impugned in this writ petition. Relevant extract of the impugned judgment is reproduced below:- “7. For abundant precaution, the Chief Executive Officer of the Cantonment Board has clearly stated that the notice which was earlier given under Section 256 of the Cantonments Act, 1924 should now be read as notice given under Section 320 of the Cantonments Act, 2006. As such there is no anomaly, much less any technical flaw in the notices as alleged by the learned Senior Counsel for the petitioners. 8. Another argument of the learned Senior Counsel for the petitioners is that under the Cantonments Act, 1924, notice under Section 256 of the old Act can only be given after a resolution of the Board whereas under the new Cantonments Act, 2006 notice has to be given only by the Chief Executive Officer. 1 2025:UHC:3402-DB 9. This contention of the petitioners appears to be incorrect inasmuch as language of Section 320 of the Cantonments Act, 2006 clearly states that a notice under Section 320 can be given by the Board as well as by the Chief Executive Officer. Therefore, there is absolutely no anomaly in the orders dated 02.06.2014 and 01.08.2014. 10. The writ petitions have no merit and are hereby dismissed. Interim order dated 12.08.2014 stands vacated. Respondent authorities are hereby directed to take an action against the petitioners in accordance with law.” 2. Appellants have challenged the said judgment mainly on the ground that the notices were issued in exercise of power under Section 256 of Cantonments Act, 1924, while Section 256 was not existing in the statute book after repeal of Cantonments Act, 1924. 3. Learned counsel appearing for Cantonment Board has drawn our attention to the impugned notice. In para 2 thereof, there is reference to Section 320 of Cantonments Act, 2006, which has replaced the Cantonments Act, 1924. Section 320 of 2006 Act enables the Board, Civil Area Committee or the Chief Executive Officer of a Cantonment to take necessary action, in the event of non-compliance of the terms of any notice, order or requisition, issued to any person under the Act. 4. Since the power which was available under Section 256 of Cantonments Act, 1924 is still available under Section 320 of 2006 Act, and there is reference to Section 320 of Act No. 41 of 2006, therefore, first ground of challenge, raised on behalf of the appellants is without any substance. 5. Learned counsel for the appellants then submits that impugned notices were issued by Chief Executive 2 2025:UHC:3402-DB Officer of the Cantonment Board while as per law, the competent authority to issue the notice is the Board. Learned Single Judge has dealt with this contention in para 9 of the impugned judgment. 6. Section 320 of Act No. 41 of 2006 provides that in the event of non-compliance with the terms of any notice, order or requisition made under the Act, Rule or Bye-law, the Board, Civil Area Committee or the Chief Executive Officer may take such action, as may be necessary, after giving notice in writing to a person against whom any action is proposed to be taken. Thus, we concur with the view taken by learned Single Judge that Chief Executive Officer is also competent to issue notice before taking any action under Section 320 of Act No. 41 of 2006. 7. From perusal of the record, it is revealed that the property in question was originally leased out by the Secretary of State for India in Council in favour of one Mr. Khuda Bux on 21.06.1915 and thereafter, one Mr. Mandan Mohan Khulbe became lessee of the aforesaid property. It is also revealed from perusal of the record that writ petitioners/appellants, by trespassing upon the aforesaid property unauthorizedly raised construction, for which, demolition notices were issued to them from time to time since 19.08.2000. 8. Mr. Madan Mohan Khulbe, the lessee, also filed Writ Petition (M/S) No. 1683 of 2009, raising the issue of illegal construction, raised by writ petitioners/appellants over the property in question. The said writ petition was disposed of vide order dated 3 2025:UHC:3402-DB 13.05.2014 by recording the statement made by learned counsel appearing for the Cantonment Board that decision on the question of renewal of lease shall be taken within ninety days and the illegal/unauthorized construction, if found to be raised on the property in question, shall also be appropriately dealt with. The impugned notices appear to have been issued to the writ petitioners/appellants in terms of the statement made on behalf of Cantonment Board before Writ Court. 9. Mr. A.D. Tripathi, learned counsel appearing for the intervener, submits that due to unauthorized construction forcibly raised by writ petitioners/ appellants over the property in question, the competent authority is not considering intervener’s prayer for renewal of the lease. He submits that whatever structure has been raised by the appellants over the property in question is without any authority of law as neither the lease-holder nor the owner of the property has permitted the appellants to raise such structures. 10. When asked about the authority under which appellants had raised construction over the property in question, learned counsel for the appellants could not show any document to show that appellant had any right, title or interest over the property in question. 11. Thus, the only inference which could be gathered is that petitioners were trespassers over the property in question who have failed to remove their unauthorized construction, even after repeated notices given to them by the competent authority. 4 2025:UHC:3402-DB 12. Learned Single Judge has given valid reasons for dismissing the writ petition, wherein writ petitioners challenged the notices issued to them by Cantonment Board. Thus, any interference with the impugned judgment would not be warranted. 13. In such view of the matter, the Special Appeal fails and is dismissed. _______________________________ MANOJ KUMAR TIWARI, J. __________________________ ASHISH NAITHANI, J. Dt: 2nd May, 2025 Shiksha 5 SHIKSHA BINJOLA Digitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2 c24b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A5 42D7FF0A9BED00E67B5283D205F18FE29BDF 5DD9, cn=SHIKSHA BINJOLA Date: 2025.05.05 17:33:38 +05'30'