M. F. Saldanha, J.
1. These two appeals are directed against a common order passed by the learned single Judge in Writ Petition Nos. 25547 and 30905 of 1992. The facts of the case are within a very narrow compass insofar as it is the case of the present appellants who are the Cantonment Board, Belgaum that the Respondents 1, 2 and 3 who are the owners of a property situated at D. C. 178, Havelock Road, Belgaum had applied to the Board for carrying out of some repairs to the roof of the structure and that they were informed that no formal permission is required for such work but, it was also clarified to them that the height of the roof was not to be raised under the guise of repairs and furthermore, that no additions or alterations are to be undertaken. The applicants were put on notice of the fact that if unauthorised construction work is carried out, that they will be dealt with in accordance with the provisions of the Cantonments Act, 1924. According to the Board, the owners resorted to the usual ploy of not only carrying out the major alterations to the structure but, that they virtually reconstructed it. When this activity came to the notice of the Board, a notice under Section 185 of the Act was served on the owners calling upon them to stop the illegal construction and secondly to demolish the unauthorised structure. What transpired was something that invariably took place insofar as the Board kept issuing notice after notice repeatedly calling upon the owners to stop the construction and to demolish the unauthorised structure and the owners kept ignoring it. In sum and substance, the structure was completed but, as far as the notices were concerned as against the first set of notices, the owners resorted to the appellate remedy and on their appeals being dismissed, they approached the High Court through a writ petition. A slight difference as far as the second writ petition is concerned is that it covers the last set of notices wherein the appellate remedy has not been resorted to and consequently, the contention of the Board as far as the second writ petition is concerned was to the effect that the petition itself is not maintainable insofar as the petitioners had not exhausted the alternate statutory remedy available to them. Also, it was pointed out that the line of action followed by the owners was such that they defiantly continued with the construction until it was completed and at a late stage, they had started availing of the legal remedies and as far as the second Writ Petition No. 30905/1992 was concerned, that it was liable to be dismissed on the ground of delay and laches. The learned single Judge heard the parties and since the subject-matter of the dispute or the cause of action was virtually overlapping in the two petitions, the learned single Judge has decided the point of law through the common order without really entering into the grounds of objection vis-a-vis the second petition which in our considered view ought to have been dismissed on the basis of the objections that were raised by the Respondent-Board.
2. It is necessary for us to summarise the contentions raised on behalf of the petitioners who are really the contesting respondents before us in these appeals. The main plank of challenge on which they had approached the High Court proceeds on the footing that the notices served on them are defective and that the line of action adopted by the Cantonment Board does not conform to the procedure prescribed by law or accepted by law and that consequently, the notices are liable to be quashed. To summarise the grounds of challenge, what is contended by the owners is that the notice served on them is a composite notice calling upon them to stop work and to demolish the unauthorised structure. The principal contention raised was that the order to demolish the structure is in the nature of a final order and even assuming such a course of action was ultimately found to be justified, that it is well settled law that before an order of demolition is passed, that the affected party must be afforded an opportunity of being heard. On the basis of the principles that govern the rules of natural justice, the petitioners contended that the notice in question conveys a final decision to demolish the structure which order can never have been passed without hearing them and that consequently, the notice is bad. The same contention was raised with regard to the first part of the notice served on the owners whereby it was contended that even the stoppage of work is a course of action that has civil and monetary consequences and that consequently, before such an order is passed that it is necessary to afford the party an opportunity to show cause. The last ground of attack was the obvious one viz., that if the authority has for whatever reason arrived at a final decision, that the work has to be stopped and the structure has to be demolished, that then the rules of natural justice have in any case been infringed because no opportunity of a hearing has been afforded but more importantly, that the authority having arrived at a final decision, the opportunity to show cause even if afforded would be of no consequence because, the notice very clearly indicates that a final decision has been taken and even assuming a hearing is afforded, that it will be only for purposes of procedural compliance, with the result being already decided.
3. The learned single Judge after hearing the parties examined the case law on the point and upheld all the contentions raised on behalf of the petitioners in other words, laid down the principle that before the petitioners can be required to conform to any orders passed by the Board, that it was first necessary to serve on them a notice to show cause, afford them a hearing and then take a decision, On behalf of the Board, what was contended was that in this as also in several other analogous sections such as Sections 139 and 141, there is no prior notice that is contemplated and if the legislature has empowered the authority to take action without the service of a prior notice, that it is not competent for a Court to graft on something to the section or to read something into the section which has not been provided for by the legislature. While the Board defended its course of action it is necessary for us to amplify here that they did contend that the prior service of notice in cases relating to stoppage of work must be dispensed with for the obvious reason that otherwise it would virtually confer on the offending party an indirect license to delay through legal procedures such as the filing of replies, hearing etc., and in the meanwhile to rush through with the illegal construction and complete it and to then present the authority with a fait accompli as is done in hundred out of hundred cases and that this is against public interest and this is virtually granting sanction to illegal constructions to continue and reach a point where the usual plea is put forward that a demolition of a completed structure would be too harsh, that some nominal or ridiculous sum of money be tendered as a so-called regularisation fee and whatever the rank, illegality that it be white-washed into a legality. We need to observe that this procedure has been the bane of every city in this State and unfortunately, everyone of the Corporations and Municipalities with the active connivance and blessing of the State Government has regularised every illegal construction under the guise that it is revenue earning and that has caused the type of planning problems that have now reached unmanageable proportions. Just one indication would suffice to illustrate the magnitude of the problem where a responsible survey carried out in the city of Bangalore as late as in the end of the year 2002, has indicated that in cent percent of the commercial constructions, the majority of the regulations have been breached particularly the FSI Regulations, zero provision has been made for access and parking of vehicles, that the basements have been converted into commercial areas and all of this has unfortunately been done after obtaining stay orders from the Courts with the active connivance of the other side viz., the Corporation and the second stage of the litigation wherein a third party innocently comes forward and states that hard earned money was paid for a basement or other illegally constructed part of a building which unfortunately bears the rubber stamp of being part of the sanctioned plan and the argument being that the innocent third party should not be punished results in the so-called regularisation process. The limited reason why we have referred to these facts is because of the relevancy to the issue involved in the present case. As indicated earlier, the learned single Judge rejected the contentions put forward on behalf of the Board and allowed the writ petitions quashing the notices in question and affording the Respondents-Board the opportunity to serve the fresh notices on the respondents-owner if they so desired and to proceed according to law. The two appeals before us have been presented by the Board assailing the validity of the order passed by the learned single Judge.
4. The principal submission canvassed on behalf of the Board by its learned Counsel is to the effect that on facts, this case is indefensible. He has relied on the copy of the initial application made which was a very innocuous application requesting for permission to carry out repairs to the roof but, the Board was cautious in its reply as indicated by us earlier, and put the respondents on notice of the fact that they would be totally precluded in law from doing anything other than carrying out the roof repairs and despite this, the owners started demolishing and reconstructing the building. The learned Counsel submits that the service of notice to stop work in these circumstances was perfectly valid and justified and he submits further with a full sense of responsibility that the requirements of the rules of natural justice would only apply in certain situations and cannot be misapplied in others. His submission is that where an illegal activity which is against the public interest such as an unauthorised construction is being carried on, that it is a requirement of law and an issue of utmost necessity that the illegal activity in suspended forthwith. He submits that if the authority is required to issue a show cause notice, that the whole purpose of taking preventive action would be frustrated because, however fast the procedure is complied with, that the construction will have already been done and demolitions and removals are unpleasant, expensive and at times not even feasible. His submission therefore is that as far as the stoppage of work in relation to unauthorised constructions is concerned, that every Cantonment Board or the Corporation has the inherent power to order immediate stoppage and that to this extent the learned single Judge was totally in error in having held that the notice to stop work was liable to be quashed on the ground that prior notice was a requirement.
5. While this submission appears to be faultless and unanswerable, the respondents' learned Counsel did point out something to us which we need to take note of. His submission was that in cases where construction activity is being undertaken, that the party concerned goes through a lot of planning and expenditure and what he points out to us is that merely because somebody may complain or merely because an officer comes to the conclusion that the work is either unauthorised or exceeds what was sanctioned that a notice to stop work may follow and if the requirement of a prior notice to show cause is dispensed with, that serious prejudice could be caused to the citizen in all those cases where the notice is ultimately found to be, unjustified. The allied submission that was canvassed was that without making any personal allegations against any particular officer or authority, that the owners desired to advance the contention that having regard to the general manner in which the public authorities function, and the very serious integrity problems, that the Court must take cognizance of situations in which authorities misuse their powers or the authorities decide to use the powers in order to blackmail the citizen or the authorities act on the basis of motivated complaints or arrive at totally wrong conclusions, for a variety of reasons and that in all these situations, if the notice is required to he abruptly adhered to and complied with, that the damage will be done because construction activity involves not only raw-materials but several other factors which have to be hired and irrespective of the stage would involve abnormal economic loss. The submission canvassed was that in an emergent situation it is open to the authority to issue a show cause notice, afford the minimum possible time to the citizen and take a quick decision but, that this must always be done after affording the citizen the opportunity to show cause.
6. As far as this aspect of the law is concerned, the position is rather delicate but, we have no hesitation in laying down that in every one of these situations included under the Cantonment Boards Act that the Legislature has taken a conscious decision that there is absolutely no need or warrant to issue a prior show cause notice in cases where an illegal activity has been commenced and the authority orders the offending party to desist from proceeding further. We need to take serious cognizance of the consequences of importing the requirement of a prior show cause notice in such situations because, it would lead to a total state of havoc and advisedly therefore, it is necessary for this Court to clarify that in all cases where a public authority is prima facie satisfied with the activity being carried out is unauthorised or illegal, that it would be within its powers to serve an immediate notice to stop the work or to desist from carrying on with it and to enforce that notice. We have examined the relevant provisions and we are not concerned with the long term remedies such as prosecutions etc., but in our considered view, as the Courts have done while interpreting several other similar provisions, we will have to hold that the Court will have to read into the existing provisions, the inherent power vested in that authority to enforce its orders which within the scheme of the Act would mean that the enforcement can be done through police assistance. It is very much in the public interest that this view of the law be not only stated and restated, that it be clarified in the interest of not only the Cantonment Board in the present case but the Municipalities and Corporations in numerous other cases where these issues arise virtually day in and day out.
7. At the same time, we consider it necessary to lay down a few simple guidelines in order to safeguard the position of the citizen, the first of them being that if on receipt of a notice to stop the work, the party contends that the order to stop work is unjustified having regard to the special facts and circumstances of the case, then the authority shall immediately and without any undue delay examine the contentions and take a decision in order to ensure that no undue loss or damage is caused due to delay. In other instances, it would be desirable for the aggrieved party if it so desires, to represent against the order at the earliest available opportunity and to request for a reconsideration if there is valid ground for this in which case again, the authorities shall ensure that this process is completed without any undue delay. We specify this only to take care of those situations where the authority may have arrived at an incorrect conclusion or where the notice to stop work is otherwise demonstrated to be unjustified.
8. Coming to the main part of the notice viz., the order to demolish the structure, the appellants' learned Counsel vehemently submitted before us that on the facts of the present case where under the guise of carrying out that repairs, the building was reconstructed, that the structure itself is unauthorised and illegal and that therefore, everyone of the progressive notices served to demolish the illegal construction was 100% justified. He has advanced the submission that on the facts of the present case, there is virtually nothing that can be pleaded on behalf of the offending party and that this is not one of the situations wherein facts or files or plans are required to be examined for purposes of taking a fine decision as to whether any part of the construction is unauthorised, whether the plans have been deviated from or whether the construction carried out exceeds of offends the legal requirements and that consequently, the Board having issued the notice to demolish under these circumstances, was fully justified. The learned Counsel advanced an interesting rider to his arguments wherein he submits that if as contended by the respondents that they have something to say in their defence that nothing precluded them from coming forward to the authority pointing out their side of the case and requesting the authority to reconsider the contents of the notice. The learned Counsel's submission was that it is wrong to construe the present form of the notice as being a final order but, he defended it on the ground that this is one of the numerous situations in which an action is so very per se illegal that it justified a strict order for demolition.
9. The respondents learned Counsel drew our attention to two decisions reported in : AIR1980MP87 and a decision of the Supreme Court reported in 1992 Suppl (2) SCC 501 : (AIR 1992 SC 61) wherein effectively, the Courts have laid down well settled principle that in a serious action such as the demolition of a structure, that it is necessary to observe the rules of natural justice and that consequently, the order be preceded by the issuance of a show-cause notice. The submission canvassed therefore is that the legal position would hold good in every case because it is only after the examination of what is pointed out by the receiver of the notice, that a final decision can be arrived at regarding the legality or otherwise of the structure and that it would be too dangerous to sanction a situation whereby the authority be permitted to order a demolition on the basis of its own conclusions and to thereafter examine the correctness of that order. The challenge proceeds on a two-fold basis and in our considered view, it is well founded because it is pointed out that there could always be another side to the case which was not to the knowledge of the authority or which has been overlooked and more importantly, that if the order to demolish has been preceded by a final conclusion and is followed by necessary steps to enforce that order through coercive means that the damage would be irreparable to those of the instances where it can be demonstrated that the order was ' unjustified.
10. We do concede that as far as a notice to demolish is concerned, that the Courts themselves have laid down a well defined formula viz., that irrespective of whether the requisite sections or rules prescribe for it or not, that a notice to demolish must always be preceded by a show-cause notice. It is open to the authority to fix the minimum time and to enforce the time frame and to put down with a strong hand any delaying or dilatory tactics and we have already held that in all such cases, it shall be open to the authority as an interim measure to enforce the stoppage of work. Section 256 of the Act makes it quite clear that as far as the demolition order is concerned, that the authority has the power to enforce it even if necessary with the police assistance. To this extent therefore we need to uphold the contention raised on behalf of the owners as also the findings of the learned single Judge to the effect that in cases of demolition, a prior show-cause notice is a must.
11. The last question that falls for consideration is as to whether the notices issued by the Board to the respondents-owners are liable to be quashed for the reasons stated by us earlier and those which have been upheld by the learned single Judge. Undoubtedly, the notices are not happily worded. If the Board desired to issue a composite notice which it is entitled to do, the notice should have called upon the respondents-owners to forthwith stop the construction activity which was something within the powers of the Board and the notice could have proceeded to call upon the respondents to show-cause as to why they should not be directed to demolish the structure in question on the ground that it is an unauthorized/illegal construction. To this extent the notices are defective but, on the question as to whether they are so inherently bad that they are required to be quashed or whether notices in question can be saved, the respondents's learned Counsel submitted that once the Court upholds the view that if the main thrust of the notice viz., the direction to demolish with a prior show-cause notice is necessary, that the impugned notices must be quashed. He reiterates the submission that the second part of the notice is in the form of final order of demolition and that therefore, it cannot be saved. We have very carefully considered the submissions on both sides because the appellants' learned Counsel brings it to our notice that public authorities are invariably placed with the unhappy situation of being rendered helpless because of technicalities and what he demonstrates is, in the course of the litigation etc., that the respondents have got away by putting up an illegal and unauthorised structure and that this was completed several years back whereas Section 185 of this Act mandates that the notice in question even in the case of a demolition will have to be served within twelve months of the completion of the work and his submission is, because of the time factor, that the respondents-owners should not be permitted to get away. The learned Counsel's submission was that the first part of the notice would hardly be enforceable be-cause the question of stoppage of work does not arise but, his submission is that it is relevant for purposes of over-all decision insofar as the fact that the respondents-.owners defined a series of legal directions from the authority is a relevant aspect of the case while taking the final decision. The learned Counsel's suggestion to the Court was that the notices in question be construed as notices to show-cause as to why the structure should not be demolished and that the respondents be permitted to file their explanations or objections, that the Board will grant them a hearing and pass orders according to law, We are in agreement with this suggestion for the simple reason that we do not desire to go into the complexities of examining as to whether because of the pending proceedings, the period of one year or the limitation of one year prescribed under Section 185 shall be deemed to have been extended etc., and in order to obviate these complications, we direct that the notices in question shall be treated as notices to show-cause as to why the structure should not be demolished. The respondents shall be permitted to file their reply to the notices within an outer limit of six weeks from today, If no such replies are filed within the prescribed period, the authority shall be at liberty to pass appropriate orders. If the respondents show-cause through any such replies/objections then irrespective of whether they ask for a hearing or not, the authorities shall fix up a hearing, comply with the rules of natural justice and pass appropriate orders according to law. Having regard to the age of the case, the authorities shall ensure that such orders are passed with utmost expediency and we therefore direct having regard to the sad experience in the past that if the respondents adopt any delaying or dilatory tactics that the authorities shall not be required to show any undue indulgence as far as the hearing and passing of orders are concerned.
12. With these observations, the appeals which partially succeed are allowed. In the circumstances of the case, there shall be no order to costs. We clarify that in the facts and circumstances of the present case where we have saved the notices in question, that there is no bar within the provisions of Section 185 of the Act to the authority hearing the respondents within a reasonable period of time and passing appropriate orders according to law.