1. This is a petition invoking the jurisdiction of this Court under Article 226 of the Constitution seeking to quash an order of the Cantonment Board, Secunderabad, dated 25-7-1957, levying a composition fee of Rs. 1,000/- for certain unauthorised constructions carried out by the petitioner in his premises or in default to demolish and remove the said unauthorised construction.
2. The facts relevant for this enquiry are as under; The petitioner Sri P. V. Jaya Bao is a pensioner of the erstwhile Hyderabad Government. He is the owner of a building and land appurtenant thereto, bearing Survey Nos. 47/6, 47/7 and 47/8 in the village of Busareddiguda, Baghat Ta-luq, Hyderabad District. He applied to the Cantonment Board under Section 179 of the Cantonments Act II of 1924 on 21-5-1954 for permission to build outhouses consisting of three rooms and a verandah and servant's quarters consisting of two rooms and a verandah, one to the south-east and the other to the north-west in the compound of Bungalow No. 223, Maredapalli Road.
The plan submitted by the petitioner for the said constructions was sanctioned by the Cantonment Board by its resolution dated 10-9-1954. While the construction was going on, the Cantonment authorities inspected the constructions and found that the said constructions were not in accordance with the sanctioned plan. As against the sanction accorded for construction of two blocks, the petitioner had combined both the blocks and constructed the same at the south-east comer of his residential house.
As a result of combining the two blocks into one, there was a change in the number and position of doors and windows. The Cantonment authorities, therefore, directed the petitioner by a letter dated 5-2-1955 to stop further construction. Thereupon the petitioner submitted revised plans showing the deviations made. The Board duly considered the revised plan submitted by the peti-tioner and passed an order on 14-4-1955 to the effect that the unauthorised construction might be allowed to stand on payment of a composition fee of Rs. 1,000/- subject to the concurrence of the statutory authority, the G. O. C. in Chief, Southern Command.
The said resolution of the Board was passed under Section 185 of the Cantonments Act. The petitioner applied to the G. O. C.-in-chief, Southern Command, Poona, for rescinding the order. The application of the petitioner was rejected on 14th July, 1955 and the result thereof was communicated to the petitioner through the Cantonment Board's letter dated 26th July, 1955. On a further reference by the petitioner, the Board by its order dated 25-7-1957 affirmed its decision for the levy of composition fee and required compliance with the same. Thereafter, the petitioner has applied to this Court, seeking the removal of the Board's order on certiorari.
3. The petitioner has alleged that the Cantonment Board has no jurisdiction over his property in Busareddiguda as the notification dated 28-8-1906, issued in exercise of the powers conferred by Section 4 of the Cantonments Act (XIII of 1889) had declared that Busareddiguda and 12 other villages were transferred to the Secundera-bad Cantonment solely for the purpose of exercising Criminal and Police jurisdiction. The residents of the said villages were governed by the laws in force in Hyderabad in Other matters and not by the Cantonments Act.
After the coming into force of the Constitution, the petitioner has the fundamental right to enjoy his property in the manner he liked. The Board' had no right to impose restrictions on him for putting up constructions in his site and imposing composition fee. Alternatively, the petitioner averred that the composition fee was excessive and that he was not given an opportunity of hearing before the G. O. C-in-Chief, Southern Command. The petitioner alleged further that he had no other remedy, whereby he could challenge the Cantonment Board's orders and obtain redress.
4. The Cantonment Board filed an elaborate-counter stating the facts leading to this writ petition and repudiating the allegations that the Cantonment Board was not vested with any authority under the Cantonments Act over Busareddiguda. The Cantonment Board alleged in particular that the notification dated 28-8-1906 was superseded by a subsequent notification dated 12-12-1956 duly published in the Gazette of India dated 22-12-1956 by and under which the Cantonment Board, Secunderabad could impose taxes for conservancy, water and vehicles in Busareddiguda and 11 other villages, included within the limits of the Secundera-bad Cantonment.
It was pointed out that the Cantonment Board was vested with jurisdiction to regulate and control the construction of buildings within the Cantonment area, as is evident from the Notification issued by H. E. H. Nizam, who was then supreme, dated! 12-2-1893 (24th Rajjab, 1310 Hijri). There was a subsequent notification by II. E. H. the Nizam dated 4-10-1904 recognising the powers conferred on the Cantonment Committee in regard to the construction of buildings in the villages ceded to the Cantonment proper. This power was also affirmed by H. E. H, the Nizam by a Notification in the Jarida dated 3-5-1943.
Further thereto, the Military Governor, acting for and on behalf of H. E. H. the Nizam, issued a Notification dated 23-10-1948, by and under which it was declared that the Cantonment of Secunderabad would be administered in accordance with the Cantonments Act (H) of 1924 as applied to Secunderabad Cantonment prior and upto 14th August, 1947. The Cantonment Board has, therefore, power to enforce the provisions of the Cantonment Act (II) of 1924 in respect of the premises of the petitioner, situated in Busareddiguda. Further, the petitioner who had submitted to the jurisdiction of the Cantonment Board, is precluded from challenging the jurisdiction of the Board. There is no provision for an appeal against the order of the Cantonment Board levying composition; and as such the petitioner could not make a grievance of the fact that he was not given a hearing.
5. There is no controversy with regard to the facts which have been set out as leading to this writ petition. It is apparent that the dispute has resolved itself to one of alleged assumption of jurisdiction by the Cantonment Board without legal sanction over the petitioner's property, situated in Busareddiguda village. Whereas the petitioner alleged that the Cantonment Board could not exercise powers under the Cantonment Act, the Cantonment Board has referred to the several notifications by the Nizam, by the Military Governor and by the Government of India as repudiating the plea of want of jurisdiction.
6. Thus we have to address ourselves to the short question, whether the Cantonment Board has powers under the Cantonment Act (II) of 1924 over Busareddiguda village. We now proceed to peruse the relevant notifications. We may commence our scrutiny with the notification dated 28-8-1906, as the petitioner mainly relies on this, as defining the limits within which the Cantonment Board could exercise jurisdiction over Busareddiguda and other villages, which were included in the limits of the Secunderabad Cantonment. The notification in so far as it is material, may be set out:
''In exercise of the power conferred by Section 4 of the Cantonments Act, 1889 (XIII of 1889), as applied to the Cantonment of Secunderabad, the Resident at Hyderabad, with the previous sanction of the Governor General in Council and with the concurrence of His Highness' Government, is pleased to declare that solely with a view to enable the Resident to exercise the Criminal and Police jurisdiction ..... in the thirteen villages, hereinafter named (whose limits shall be the limits fixed by the Revenue Department of His Highness' Government) viz ..... Busateddiguda etc. shall be held to be included in the limits of the Cantonment of Secunderabad ..... and all rights and privileges heretofore exercised Or enjoyed by His Highness' Government or the Jagirdars, owners or occupiers of land in the aforesaid villages ...... shall continue to be exercised
7. No comment is necessary, as the terms of the notification are clear that the Cantonment authorities could exercise Criminal and Police jurisdiction only, and the Nizam continued to exercise all other powers.
8. But, it will be presently seen that there were other Notifications by H. E. H. the Nizam, showing the delegation of powers to control constructions or buildings in Busareddiguda and other villages, situated within the Cantonment area. The earliest document placed before Us in this regard is the notification issued by the Nizam dated 12th February, 1892. The notification reads thus:--
'The Resident requests that ......no buildingof any kind should be constructed within quarter of a mile of the limits of the Secunderabad and Borarum Cantonments, so that the Cantonment may be kept in a proper sanitary condition. Accordingly the houses and huts which had been previously erected within the quarter mile zone were removed. Notwithstanding this, new houses have been erected in the locality mentioned, and there has been no proper supervision by owners of land and officials in this matter. The officials, jagirdars, and residents in the places surrounding the cantonments are therefore informed that no official or jagirdar should allow any one to build in his jurisdictionwithin quarter of a mile from the Cantonment limits.The patels and patwaris should be directed to sea that no one is allowed to build without permission. Whatever thatched huts there may be standing at present should be removed at once, and the pucca built houses should not be allowed to he repaired in future. If these orders ore disobeyed, the local officials will be held responsible and serious notice will be taken of the case, and the building erected will be demolished without any enquiry or notice.'
Next there is reference to this notification as the result of an agreement between the Nizam and the British Government in the Government Revenue Secretariat's Circular letter dated the 29th May, 1939. The subject is referred to as 'General prohibition of construction of and repairs to buildings within the quarter mile zone from the Cantonment limits.' The Circular states;
'According to the Agreement of 1893 arrived at between H. E. H. the Nizam's Government and the British Government, only retiling of and repairs to old and pucca buildings is permitted within the quarter mile zone from the Cantonment limits..... No fresh construction even within the old limits will be permitted without the consultation of the Cantonment Authorities.'
We may next make a reference to the notified ion of the Nizam's Government dated 4-10-1904. The relevant part of it is as under:
'Within the limits of the Cantonment of Secunderabad not only the Khalsa villages but also the Sarf-i-khas, Paigah and other Jagir villages are situated.....it is considered necessary that for the future the granting of permission to construe and repair and enlarge the buildings within the limits of the Cantonment of Secunderabad shall rest with the Secunderabad Cantonment Committee instead of with the Khalsa, Sarfe-i-Khas or Jagir officials and in accordance with the commands of H. E. H. the Nizam, orders are hereby issued that no official belonging to the Khalsa, Sarf-i-khas, Paigah or other Jagirs shall be competent to grant permission for the construction of or repairs to or the enlargement of buildings situated in the villages within the Cantonment of Secunderabad. In the future the granting of permission like the above shall rest with the Cantonment Committee instead of with the officials of the said villages.'.
The next document which may be read in this context is the Nizam's notification dated the 3rd May, 1943 relating to the construction within the quarter mile zone of the Cantonment area. The material part of it is the following:--
'In accordance with previous orders contained in the Revenue Secretariat letter dated the 17th Azur 14 Fasli (22-10-1904), the Cantonment authorities are competent to grant permit for construction of new buildings and repairs to old houses within their jurisdiction. But from the sanitation view point, the said authorities have objection to the construction or establishment of 'Bhattian' inside the Cantonment areas and also within a quarter mile zone from the Secunderabad Cantonment Ilaqa ..... Hence, it is hereby ordered that no 'Bhatti' of any kind should in future be constructed or established within the Secunderabad Cantonment areas........'
Reading the said notification, it is absolutely clear that the Cantonment authorities have been exercising powers in regard to the constructions in the villages within the Cantonment area by delegation referable to an express agreement or 1895 referred to expressly in the Government's Circular dated 25-9-1939.
9. It is obvious that these powers were exercised by the Cantonment authorities without any derogation by virtue of the notification dated 28-8-1906 relied on by the petitioner. The only reasonable inference we may draw is that the powers referred to supra, referable to an agreement of 1893, were left untouched by the notification of the year 1906 and continued to be so exercised.
10. Next, reference may be made to the notification by the Military Governor, Hyderabad dated 23-10-1948. The notification runs thus:
'The Military Governor, Hyderabad, hereby declares that the Cantonment of Secunderabad will be administered in accordance with the Cantonment Act II o 1924 as applied to Secunderabad Cantonment prior and upto 14th August 1947 and the construction of the Cantonment will he a Corporation Sole, administered by the Officer Commanding the Station'.
We pause to notice here that the Military Governor was representing the Nizam, who was supreme and constituted the head of the erstwhile Hyderabad Government. The notification as such has to be read as a notification by the local Government within the meaning of the Cantonments Act.
11. We may next notice the notification appearing in the Gazette of India dated 12th December 1956- The notification runs thus:
'S. R. O. 451 dated 12th December, 1956. In exercise of the powers conferred by Section 60 of the Cantonment Act, 1924 (2 of 1924) and in supersession of the Hyderabad Residency Orders Notification No. 41 dated 28th August 1906, the Cantonment Board, Secunderabad, with the previous sanction of the Central Government hereby imposes in the 12 undermentioned villages included within the limits of the Secunderabad Cantonment the taxes as detailed below which are already in force in the rest of the Cantonment:
List of 12 villages
List of taxes........'
The last mentioned notification in the Gazette of India expressly refers to the notification dated 28-8-1906, relied on by the petitioner and purports to have been issued in supersession thereof.
12. A reading of these notifications inclines US to the view that the notification dated 28-8-1906, relied on by the petitioner, was not conclusive in relation to the matter in dispute till the notification was expressly superseded in 1956.
13. It emorges on a scrutiny of the notifications placed before us by the learned counsel for the Cantonment Board that the powers relatingto the construction and remodelling of constructions within the cantonment area were delegated by the Nizam under an agreement of 1893. These powers were recognised by the Nizam's Government as exercisable by the Cantonment authorities all these years without any curtailment by reason of the notification dated 28-8-1906, now relied on by the petitioner, which does not seem to have been intended to affect the powers of the Cantonment in regard to the construction of houses. It transpires that the notification conferring only Criminal and Police jurisdiction was superseded in 1956 and consequently full control passed to the Cantonment Board.
14. The fact that the petitioner himself had applied for sanction shows that the petitioner was fully aware of the control exercised by the Cantonment Board and that he submitted to its jurisdiction with a full awareness. We would, therefore, find on the point posed for our adjudication that the Cantonment Board was vested with powers under the Cantonment Act II of 1924 over Busareddiguda village, wherein the petitioner's building is located at all material times. The petitioner, (therefore, fails on the question of jurisdiction of the Cantonment Board raised before us,
15. The petitioner also fails in his grievance that he was not given a hearing by the G. O. C-in-Chief, Southern Command, as it would appear that the order levying a compensation fee is not an appealable order under Section 185 of the Cantonments Act. Section 279 of the Cantonments Act, relied on by the petitioner for a reasonable opportunity of being heard in person or through a legal practitioner, comes into play only if an appeal is provided under the Act and not otherwise.
16. Thus the petitioner has failed to make out any ground for the interference of this Court with the order in question passed by the Cantonment authourtities levying composition fee. The petition is dismissed with costs. Advocate's fee Rs. 100/-.