2005 PLP 177 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

State Life Insurance Corporation of Pakistan is constructing a State Life Building in the Cantonment area of Dera Ismail. Khan, the building plan whereof had been approved by the Cantonment Board vide letter No.4-14/ii/506, dated 22-9-1994. For numerous reasons alleged, the construction could not be completed and thus the corporation sought two extensions, granted by the Board; each for a period of one year. The last extension was to commence from 23-9-1996 and to expire on 22-9-1997. The construction still could not be completed and thus the Board proceeded against the Corporation purportedly under section 185 of the Cantonment Act 1924 requiring the Corporation to deposit a sum of rupees one million as amount of compensation. Such notice/notices were challenged by the Corporation before Peshawar High Court, under Article 199 of the Constitution. Vide judgment dated 31-5-2000, the aforesaid petition was partially accepted, to the effect, that the notice dated 19-2-1999 of the stoppage of construction was declared to be null and void but composition on payment of rupees one million was held to be valid. State Life Insurance Corporation seeks leave to appeal against the said judgment.

2. We have heard at length the learned counsel for the petitioners and learned caveator for the respondents and have examined the record with their assistance.

3. The scheme under which the buildings etc. are controlled by the Cantonment Board is governed by Chapter XI of the Cantonment Act 1924. The relevant over view would be proper to comprehend.

4. Section 178-A of the Act provides that all buildings are to be erected or re-erected, firstly with the prior sanction of the Board and, secondly not otherwise than in accordance with the conditions or restrictions given in the Chapter. In the instant case, admittedly, the erection had been resorted to with prior sanction of the Board, the notice whereof under section 179 of the Act had already been given by the Corporation fulfilling the purpose/purposes underlying subsection (2) of section 179.

5. The grant or refusal of sanction by the Board for erection or re erection, is done by keeping in view various conditions, and circumstances enumerated in section 181 of the Act. It is nowhere the case of the Board that the Corporation has ever violated any terms or conditions aforesaid because, as we would be reverting thereto, the cause of trouble is altogether different.

6. Sanction granted under section 178-A for erection/re-erection is to remain operative for a period of one year within Which the construction is to be commenced and thereafter no construction can be begun unless, on the application of the party concerned, the sanction to begin construction is extended by the Board. This section deals with the non-commencement of construction and excludes the application thereof in cases where non - completion within specified period is involved. The latter issue and also the one in hand, is -covered by section 183-A of the Act providing for the specification of reasonable period by the Board for the completion of construction from the date of commencement. After expiry of such period, no construction can be continued unless the period is extended, by not more than two extensions, in any case.

7. What the non-completion of erection or re-erection within a specified period or further periods entails upon, is highlighted in section 184 of the Act that runs as follows:

"

184. Illegal erection and re-erection.

Whoever begins, continues or completes the erection or re-erection of a building:

(a) without haling given a valid notice as required by sections 179 and 180, or before the building has been sanctioned or is deemed to have been sanctioned; or (b) without complying with any, direction made under subsection (1) of section 181; or (c) when sanction has been refused, or has ceased to be available, or has been suspended by the Competent Authority under clause (b) of subsection (1) of section 52; shall be punishable with fine which may extend to five hundred rupees."

8. In the instant case, the continuance of erection objected to by the Board does not fall within the ambit of sub-clauses (a), (b) or second part of (c) (referable to section 52 of the Act) of section 184 above, but falls under first part of sub clause (c) thereof. This violation is punishable with fine which may extend to five hundred rupees.

9. Next comes the section that deals materially with powers of the Board to tackle with the illegal erections and re-erections. Being directly relevant, section 185 of Act is reproduced:-- "

185. Power to stop erection or re-erection or to demolish.

(1) A Board may, at any time, by notice in writing, direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board considers that such erection or re-erection is an offence under section 184, and may in any such case or in any other case in which the Board considers that the erection or re erection of a building is an offence under section 184 within twelve months of the completion of such erection or re-erection in like manner direct the alteration or demolition, as it thinks necessary, of the building, or any part- thereof, so erected or re erected: Provided that the Board may, instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable: Provided further that the Board shall not, without the previous concurrence of the Competent Authority accept any sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board. (2) A Board shall by notice in written direct the owner, leasee or occupier of any land in the Cantonment to stop the erection or re-erection of a building in any case in which he order under section 181 sanctioning the erection or re-erection has been suspended by the Competent Authority under, clause (b) of subsection (1) of section 52, and shall in any such case in like manner direct the demolition or alteration, as the case may be; of the building or any part thereof so erected or re-erected where the Competent Authority thereafter directs that the order .to the Board sanctioning the erection or re-erection of the building shall not be carried into effect or shall be carried into effect with modifications specified by him: Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or alteration of any building which has been erected or re-erected prior to the date on which the order of the Competent Authority has been communicated to him. ..

10. The Board exercises powers to stop erection or re-erection or to demolish the building in any case in which the Board considers that such construction is an offence under section 184 of the Act, it can, within 12 months of the completion of such construction, direct the alteration or demolition, of the building or any part thereof, as it thinks, necessary. Even a plain reading of subsection (1) above would indicate that the word "may" is used by the lawmaker, not rendering action thereunder to be mandatory. It is a matter of discretion which, by all functionaries of the State, is required to be exercised judiciously as well as with reasonable care and prudence. The repeated use of "may" is a deliberate use when juxtaposed to the repeated use of word "shall" in the immediately following subsection (2) of the same section.

11. This brings us to the logical interpretation that the terminologies aforesaid in one and the same section are resorted to by the legislature keeping in view the gravity of the different situations involved. Why such distinction? It also has a wisdom behind, in that, the action proposed is related to various conditions laid down under section 184 of the Act, which most certainly differ from each other in gravity, in implications and in repercussions.

12. The illegality referred to in clauses (a) and (b) of section 184 is considerably serious because it refers to a construction which through and. through is in violation of sections 179, 180 and 181 of the Cantonment Act. It is completely an unauthorized construction and hence is either to be demolished, wholly or partly, as the case may, be, or compounded within the meanings of first proviso to section 185(1) of the Act. Clause (c) refers to three situations. The first is, while construction is done when the very sanction is refused. It almost equals the illegality mentioned in clause (a) and (b) and hence requires a serious action to be taken against. The second situation is regarding construction when the sanction ceases to be available, while the third is related to the suspension of sanction under section 52(1)(b) of the Act. None of the conditions mentioned in clauses (a), (b) and (c) of section 184 apply to the present case because, admittedly, no construction in hand is violative of the sections mentioned therein. The petitioners have not at all made a construction beyond that sanctioned by the Board. At the most, it sounds like continuance of sanctioned and lawful construction beyond the time in which it was to be completed.

13. The above irregularity (the one in hand) is not as serious as the rest of them are. Here no unauthorized construction is resorted to. No violation of the approved plan is done. No rights of the neighbouring locality are violated. No impediments have been caused to the environment, sewerage or hygiene of the surroundings. This one is the situation where public functionaries, with reference to the word "may" used, are required to exercise their discretion judiciously, reasonably and with prudence; and also, as to whether, the discretion be at all exercised, especially, when the consequences of such irregularities are provided in the section itself.

14. In our view, with the above background, the action taken by tote Board was harsh as well as unwarranted. Where the construction in dispute is neither unauthorized, nor violative of the provisions of sections 179, 180, 181 and 52 of the Cantonment Act 1924, no demolition can be ordered under section 185 of the Act and hence nothing exists to be compounded under first proviso to section 185(1) of the Act. It can be compounded only when some unauthorized construction is done by the owner, lessee or occupier. In that case the Board may, instead of resorting to demolition of the whole or part thereof, as the case may be, accept by way of composition such sum as it thinks reasonable. In the circumstances strictly of the present case and in the nature of not illegal commission but of negligible omission, the Board could not resort to demolition of what is not unauthorized at all and resultantly the composition is simply out of place.

15. Coming to first proviso to section 185(1) of the Act, for the sake of interpretation, we cannot lose sight of the fact that law contemplates the acceptance of composition in terms of money not arbitrarily but with reasonableness. The learned High Court is of the view that reasonableness of the sum cannot be gone into by the Court. We find ourselves to be totally in disagreement with such findings. When the statute specifically requires a public functionary to act in a particular manner, it must act in that manner and the Courts have all the power to see as to whether it acted in that manner or not. Reasonability or otherwise of an act is a question of fact which, at times, requires to be decided on the basis of evidence but in certain cases even the evidence is not required. Instant one is a case where all the facts are almost admitted and hence the High Court could very well have assessed the reasonableness of the action involved.

16. As discussed earlier, the Corporation has never resorted, admittedly, to any unauthorized construction either wholly or in part. It never violated any other bye-laws affecting the rights of vicinity or neighbourhood. It never caused a loss of single penny to the Board and thus there was nothing to be demolished. When once nothing, was there to be demolished, obviously, the very composition would be out rightly out of place. In these circumstances, the demand of Rs.10,00,000 as composition money is not only highly unreasonable but illegal. The reasonability or otherwise can well be appreciated in view of the admitted facts of present case. It is, therefore, held that demolition and consequent composition can only be resorted to when the construction is unauthorized and violative of sections 179, 180, 181 and 5 of the Cantonment Act. Any other omission, like one in hand at all, can lead to consequences provided by section 184 itself.

17. The Law maker was rather judicious as well as benevolent in enacting proviso to subsection (2) of section 185 of the Act which provides that in cases covered by section 52(1)(b) demolition of a building or portion erected prior to the date on which the order of the competent authority is communicated, shall be compensated by the Board towards any loss actually incurred. Purpose of the act has never been to permit exploitation of a given situation, particularly when that other proceeded against, is equally a Government Controlled body. Such state of affairs can only lead to creation of bad blood among people and the Government departments or among two departments controlled by the Government, and hence to a bad Governance.

18. Our point of view is further fortified by the fact that the learned High Court in. its subconscious mind was convinced of the fact that nothing unlawful has been resorted to by the Corporation. On the one hand it disallowed the stoppage of construction and, on the other, allowed the composition of Rs.10,00,

000. The permission to continue construction clearly meant that the construction was not otherwise illegal or unauthorized. In these circumstances the permission to compound on payment of Rs.10,00,000 was self-contradictory and both conclusions were destructive of each other.

19. While referring to one of the dispatches, the learned counsel for the respondents argued that at one time the Corporation itself had agreed to accept composition and that hence it was estopped to plead otherwise. This argument can be rejected on two grounds. Firstly, that the question of composition as such, is a question of law and there exists no estoppel in law. Secondly, the Corporation might have contemplated some reasonable amount of composition which, it did not turn out to be, in consequence.

20. Consequently, the petition, after conversion into appeal, is hereby accepted, the impugned judgment dated 31-5-2000 of the learned High Court is set aside and the composition as well as the quantum thereof is hereby declared to be illegal, void and without jurisdiction. M.H./S-56/S Appeal dismissed.