Punjab-Haryana High Court
Basdev Mittal (Deceased) And Ors. vs Cantonment Board on 19 February, 1990
Equivalent citations: (1990)98PLR16
JUDGMENT A.L. Bahri, J.
1. This appeal was filed by Basdev Mittal, the plaintiff, whose suit was dismissed by the trial Court and further appeal was dismissed by Additional District Judge. Suit was filed for perpetual injunction restraining the defendant Cantonment Board from demolishing portion, shown red in the site plan attached with the plaint of House No. 4, Mohalla No. 2, Jalandhar Cantt. The plaintiff claimed to be owner of the house in dispute wherein he wanted to add one room alongwith a projection He submitted the plan to the Board for sanction on April 15, 1971 Having received no reply he wrote a letter to the Borard on March 15 1972 The letter was sent under postal certificate. 15 days time was given to the Board to grant the permission to construct the building Since no intimation was received in response to the aforesaid letter the plaintiff treated silence on the part of the Board as implied permission He started construction. However, he was served with a notice dated July 24, 19 72 issued by the Board asking him to stop the construction This followed by other notices issued under Sections 185 and 187 of the Cantonment Act In the suit for injunction the plaintiff challenged these notices It may further be stated that before filing the suit the plaintiff filed an appeal challenging the notices which was dismissed by Deputy Director, Military Lands and Cantonments, Western Command Smile on July 23, 1974 and the suit was filed on August 13, 1974.
2. The Cantonment Board contested the suit taking up different pleas inter alia alleging that the suit was barred by time, notices issued ware legal, and Jurisdiction of the Court to entertain the suit was also challenged. The suit was tried on the following issues:
1. Whether the plaintiff is the owner of the house in dispute ? OPP.
2. Whether the notices issued by the defendant are illegal, arbitrary, malafide, capracious and unconstitutional as alleged in para 8 of the plaint ? OPP.
3. Whether the suit is time barred ? OPP.
4. Whether the Civil Court has got no jurisdiction to try the suit ? OPP.
5. Whether the plaintiff is entitled to the injunction prayed for ? OPP.
6. Relief.
3. The trial Court on issue No. 1 held the plaintiff to be the owner of the house in dispute. Under issue No. 2 notices issued by the Board were held to be legal. Under issue No. 2 the suit was held to be time barred. Under issue No. 4 the civil Court was held to have the jurisdiction, Under issue No. 5 the plaintiff was held not entitled to the injunction prayed for and the suit was dismissed. As stated above appeal filed by the plaintiff was dismissed by the Additional District Judge and now he has approached this Court.
4. The approach of both the Courts below holding the suits to be barred by time is not correct. The Courts below were of the opinion that the cause of action accured when initially the Board issued notices to the plaintiff on December 4, 1972. Exhibits P. 7 and P. 8 and the present suit having been filed beyond six months was barred by time The contention of counsel for the appellant is that a statutory appeal was provided to challenge those notices and the plaintiff availed of the said remedy and it was on July 23, 1974 that when his appeal was finally dismissed by the Deputy Director Military Lands and Cantonments, Western Command, Simla, that cause of action accured to him to challenge the said order and the notices for filing the civil suit and the present suit having been filed within six months therefrom is within intime. There is force in this contention. Section 274 of the Act provides that any person aggrieved by any order described in the 3rd column of Schedule-V could appeal to the Authorities specified in that behalf in the 4th column of the said Schedule. Schedule V attached to the Act mentions that when Board issues notice to alter or demolish building under Section 185 of the Act, the appeal could be filed before the Appellate Authority (Officer Commanding-in Chief, the Cammandant, or other authority authorised in this behalf by the Central Government) within 30 days from service of notice. The suit could be filed within six months as required under Section 273(3) of the Act. Since a notice was required to be served giving two months time as required under Section 273(1) such a suit could be filed within eight months in all from the date of accrual of cause of action. Where the plaintiff availed the remedy of statutory appeal as provided under Section 274 of the Act against notice issued by (he Board under Section 185 of the Act for demolishing the building, the cause of action for filing suit under Section 273 arose on the dismissal of the appeal not on the date of issuing notice under Section 185 of the Act. As already stated above, notice under Section 185 of the Act Exhibit P. 8 was issued to the plaintiff on December 4, 1972 and the plaintiff availed of the statutory remedy of appeal as above which was finally decided on July 23, 1974. The present suit having been filed within six months of dismissal of appeal is held to be within time.
5. The learned Additional District Judge relied upon decison of Punjab High Court in Cantonment Board, Ferozepur Cantt. through Executive Officer v. Bajrana Singh S/o Babu Singh, A.I.R. 1961 Pb. 460, to hold that cause of action for challenging order of dismissel of employee of Cantonment Board accrued on the date of passing of dismissal order, and not from the decision of the appeal. Reliance was placed on the decision of the Supreme Court in Sita Ram Goel v. The Municipal Board, Kanpur, A.I R. 1958 S.C. 1036, wherein the aforesaid proposition was laid down. Recently, the Supreme Court in S. S. Rathore v. State of Madhya Pradesh, A.I.R 1990 S.C. 10, has overruled the decision in Sita Ram Goel's case (supra) holding that in service disputes, cause of action does not accrue on date of original adverse order but on the date of higher authority entertaining statutory remedy.
6. The next question argued in the appeal is that there was implied sanction of the plan submitted by the appellant for construction of the additional accommodation as no action was taken by the Board either on the submission of such plans or subsequently when a letter was written to the Board The relevant facts again be recapitulated for determining this point. Application for sanctioning of the plan and permission to construct was made on 15-4-1971 to the Board. It was expected of the Board to communicate the decision thereon within a period of one month. The plaintiff wrote a letter to the Board sent through post (under postal certificate) on March 15,1972 giving fifteen days to the Board to take a decision on his previous application for permission to sanction. No reply to the same was received within fifteen days. However, as already stated above, notice dated July 24, 1972 was issued to the plaintiff to stop the construction and thereafter to demolish it. Under Section 181 of the Act, the Board was required to take a decision either to refuse to sanction the erection or re erection or to sanction it. Sub-section (6) of Section 181 of the Act reads as under :--
"Where the Board neglects or omits, for one month after the receipt of a valid notice, to make and to deliver to the person who has given the notice any order of any nature specified in the section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or - omission, then, if such neglect or omission continues for a farther period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or reelection, as the case may be, unconditionally :
Provided that, in any case to which the provisions of Sub-section (3) apply, the period of one month herein specified shall be reckoned from the date on which the Board has received report referred to in that sub-section."
7. The aforesaid provision reveals that the Board required to j take a decision within one month of submitting of the application for |sanction for constructions or re-construction of a building end if no action was taken within the said period, the person concerted could by a written communication send by registered post to the Board calling the attention of the Board to the neglect or omission and allowing fifteen days time. It is persumed, if no action is taken that there was deemed sanction for construction of re-construction as asked for. The proviso added to sub-Section (6) further makes it clear that if on receipt of original application of sanction, report had been called as required under sub-Section (3), the period of one month would be reckoned from receipt of the sail report.
8. As far as sub-mitting of the original application for the grant of sanction for construction is concerned, though originally this averment was denied, however subsequently, it was admitted that such an application, was received by the Board. As far as the written communication alleged to have been sent through post (under postal certificate), the same was denied on behalf of the Board in the written statement. The said letter, Exhibit, P. 4, was sent under certificate of posting, copy of which is Exhibit P. 4. Immediately on receipt of notice, Exhibit P. 5, the appellant replied to the same vide letter dated August 18, 1972, copy Exhibit P. 6 specifically mentioning therein that he bad sent the letter on March 17, 1972 under Section 181(6) of the Act and that he had not made any breach of the provisions of Section 179 of the Act Subsequently, be sent copy of his letter dated March 15, 1972 Ex. P 4 to the Board along with his letter dated December 20, 1972, copy Annexure P. 9. Thereafter he was called by the Executive Officer of the Board to bring all the documentary and oral evidence in support of his objections. The said notice is Exhibit P. 10 During pendency of the suit, an application for production of documents was filed by the plaintiff. In para 4 of the application, it was submitted that the plan was submitted for sanction on 13/15th April, 1971 and a letter under certificate of posting was sent on March 15, 1972. Notice of this application dated January 27, 1975 was given to the Board, Similar application was again made on May 12, 1975 notice of which was also given to the Board. in reply submitted on behalf of the Board, it was admitted that the original plan was submitted for sanction. However, receipt of the second letter was denied. It was further stated that even if any such letter was proved to have been despatched, it never reached the office and it was not according to law on the subject it had no relevancy. It has been argued on behalf of the appellants that when it has been established and a letter dated March 15,1972 Exhibit P. 4 was sent by post to the Board and as par evidence of the plaintiff it was sent under postal certificate a presumption should be drawn under Article 114 of the Evidence Act that the said letter reached the office of the Board with the result that the Board having not taken any action within fifteen days from the receipt of the said letter, there was deemed sanction of the plan for construction under Section 181(6) of the Act On the other hand, learned counsel for the Board while referring to sub- Section (6) of Section 181 of the Act, as reproduced above, has argued that since there is no evidence that the letter giving fifteen days notice was seat through registered post, no such presumption can be drawn that the plan stood deemed to have been sanctioned I have given due consideration to these arguments. The intention of the Legislature providing service of notice by registered post under Section 181(6) of the Act was to draw the attention of the Board that a plan submitted for sanction for construction was pending in the Board requiring its action and even if within fifteen days after receipt of the notice, no action is taken, then presumption could be drawn that such a plan stood sanctioned. The intention was to rule out pleas of sending letter by ordinary post, proof of posting of such letters being subject to doubt If a letter is sent by registered post, it is required of the postal authorities also to verify delivery of the said latter at the destination or its return. To some extent, the certificate of posting supports the case that such a latter was posted and rest remains on the evidence to be established that such a letter was not received back undelivered. If that evidence is available, then of course a presumption can be drawn that the said letter reached its destination. Thus, in both cases, where a letter is sent by registered post or posted under a certificate, a presumption can be drawn. P. W. 2 Vas Dev stated; that after he had sent a plan along with his application dated 15-3-1971. Having received no reply, he sent letter dated 15th April, 1972 under certificate of posting. He proved the copy of the said letter as well as acknowledgment receipt, as referred to above On this point, the only cross-examination conducted was that he did not consider it proper to send the letter by registered post and he thought it fit that sending the letter the postal certificate was sufficient. D. W. 1 Pritam Singh Overseer, appeared on behalf of the Board and stated that he had not brought the receipt register He went to the length of even denying the receipt of the original plan for sanction. There was no evidence produced that the letter sent under certificate of posting was received back. As stated above, the Receipt Register of the Board was not produced by D. W, 1 which would have indicated the receipt of such a letter. As already noticed above, even the stand of the Board with respect to the submitting of the plans had been that the same were not received but subsequently this fact was admitted In the peculiar circumstances stated above, presumption under Section 114 of the Evidence Act could legitimately be raised that the letter sent under certificate of posting reached the destination i. e. the Roard. In Vishwanath Goyal (deceased by L. Rs.) and Ors. v Cantonment Board, Agra, A.I.R. 1987 Allahabad 4, after noticing that the Board had not called for the report of the M. E. O. on submission of the plans for sanction for construction and there was omission and neglect on the part of the Board even on subsequent communications sent to the Board, a presumption was drawn under Section 181(6) of the act that on account of omission or neglect on the put of the Board during the requisite period, there would be deemed sanction of the plan for construction. On the same lines is judgment of Delhi High Court in Ram Narain and Ors. v. Cantonment Board Delhi and Ors., A.I.R. 1973 Delhi 84, Learned counsel for the Board tried to distinguish the judgment of Delhi High Court on the ground that in that case, notice in fact was sent by registered post. As discussed above, serving of the notice by other post was not prohibited by the statute. The plan is deemed to have been sanctioned with the result that notices for demolition of the additional building constructed would obviously be illegal.
9. There is another aspect of the matter which needs to be noticed. After the plaintiff had constructed the building in accordance with the plan, the Board assessed water charges and house tax charges on its value. On behalf of the plaintiff, such documents were produced in evidence. Exhibit P. 12 is the receipt for deposit of Rs. 42/-towards house tax and water tax for the year 1969-70 for the house in dispute and Exhibit P. 11 is the bill submitted by the Board in this respect. Likewise, Exhibit P. 15 is the bill submitted by the Board amounting to Rs. 15/- for consumption of water for the period April, 1971 to June, 1971 and receipt of the same is Exhibit P. 16. When the Board recognised the construction in the present case in the form of additional construction of one room and one projection, it would otherwise be deemed to have condoned the fault of the plaintiff, if any. The type of construction is not such that has violated any rules regulations or bye-laws of the Board as no evidence has been produced by the Board in this respect. As already staled above, report of the M. E. O. was not called which further indicates that the plan submitted by the plaintiff was in accordance with the rules and regulations, otherwise the Engineering Department could have pointed out those defects, if any. Even though, technically, acceptance of water tax or house tax may not legally amount to acquiescence on the part of the Board in raising unlawful or dangerous construction, however, as stated above, since the alleged construction has not been proved to be against the rules or bye-laws, it will not be proper now to get the same demolished.
10. For the reasons recorded above, this appeal is allowed with no order as to costs Consequently, the judgment and decree of the Courts below are set aside and the suit filed by plaintiff restraining the Board from demolishing the disputed construction of the building is decreed.