Karnataka High Court
Smt. Haannurammabai Kalal (Deceased) ... vs Cantonment Board on 12 September, 2007
Equivalent citations: 2008(3)KARLJ528
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT V. Jagannathan, J.
1. The suit filed by the appellant for injunction restraining the respondent-Cantonment Board (the 'Board' in short) and also to declare the notices issued under Sections 185 and 256 of the Cantonments Act, 1924, as null and void, was dismissed by the Trial Court on the ground that the appellant ought to have sought the remedy under the Cantonments Act itself and also for not complying with the requirement of issuing notice to the Cantonment Board and following the dismissal of the suit, the appeal was preferred before the lower Appellate Court in R.A. No. 31 of 1994 and the appellant was unsuccessful as the Appellate Court also confirmed the judgment and decree passed by the Trial Court in O.S. No. 187 of 1988. Thus, the plaintiff is before this Court in this second appeal.
2. The brief facts of the case are to the effect that the appellant claiming to be the owner in possession of suit property bearing House No. 57, situated at High Street, Camp-Belgaum, and having her name entered in the GLR extract in respect of the suit property maintained by the Cantonment Board, sought permission of the Board to put up a new construction by making an application to the said effect on 16-5-1983. It is the case of the plaintiff that permission was accorded on 4-1-1984 and soon after the construction was over, she received a notice under Section 185(1) of the Cantonments Act, 1924, on 12-3-1984 (as per Ex. D. 2) and in the said notice, it was brought to the notice that construction was against the rules and extra construction has been done and hence the appellant was called upon to demolish the unauthorised construction within 30 days from the date of said notice. It is the case of the appellant that she replied to the said notice on 12-4-1984 and the explanation offered by her was accepted and no further steps were taken by the Board in pursuance to the notice issued under Section 185 of the Cantonments Act, 1924. All of a sudden, the appellant received notice under Section 256 of the Cantonments Act, 1924, as per Ex. P. 4, dated 2-3-1988 and as the appellant was directed to demolish the unauthorised construction within thirty days failing which the Board would take steps to get the demolition done on 15-3-1988, the appellant rushed to the Civil Court for the relief of injunction restraining the Board from going ahead with the demolition of the house. Amendment was also sought later on by seeking the additional prayer of declaring the notices issued under Section 185(1) and Section 256 of the Cantonments Act as null and void ab initio. The respondent-Board filed its objections by taking up the stand that there was no sanction accorded to the appellant for construction of new house and secondly she had violated the bye-laws by putting up unauthorised construction and before issuing notice under Section 256 of the Act, the appellant was given an opportunity on 30-9-1987 but the appellant did not prefer any appeal as provided under the Cantonments Act, 1924, and therefore, the present suit was not maintainable in the Civil Court as there was a specific bar in the Cantonments Act for seeking remedy in the Civil Court and thus, prayed for dismissal of the suit.
3. The learned Judge of the Trial Court based on the pleadings of the parties, framed as many as six issues and answered issue 4 and additional issue 2 in the affirmative and the rest in the negative and came to the conclusion that the appellant ought to have sought remedy under the Cantonments Act itself as there was a bar in approaching the Civil Court under the said Act and secondly, no notice as contemplated under Section 80 of the CPC was given to the Board and on these two reasonings, the suit of the appellant was dismissed. The lower Appellate Court concurred with the view taken by the Trial Court and the appeal preferred by the plaintiff was dismissed and this is how the plaintiff is before this Court in this second appeal.
4. I have heard the learned Counsel for the appellant. It is to be mentioned at the juncture that the learned Counsel for the respondent remained absent when the matter was heard yesterday and in the hope that the Counsel would turn up at least today, this Court heard the learned Counsel for the appellant further, but the Counsel for the respondent continued to remain absent and there was no representation either on his behalf. Hence, it is taken that there is no argument on behalf of the respondent. At the time of admission of this appeal, this Court had framed the following substantial question of law for consideration:
Whether a notice under Section 273 of the Cantonments Act, 1924 was required to be issued before institution of the suit?
5. The learned Counsel for the appellant-Sri R.D. Gokakar submitted that as could be seen from the evidence on record, the respondent-Board has admitted that the appellant was accorded sanction to put up new construction and secondly the appellant did appear before the respondent in response to the notice issued under Section 185(1) of the Cantonments Act, 1924 and the authorities took no steps there after wards. As the appellant did not receive any communication within thirty days of the notice issued under Section 185(1) of the Cantonments Act, 1924, she was under the impression that her explanation has been accepted as satisfactory. However, to her surprise, long after she gave her explanation and more than six months later, the Board issued the notice as per Ex. P. 4, under Section 256 of the Act once again directing the appellant to demolish unauthorised construction within thirty days. It was this notice which made the appellant to rush to the Court for injunction and it is his submission that the said notice was issued in violation of the statutory requirement of the provision of Cantonments Act, 1924. It was submitted that before issuing notice under Section 256, the appellant was not informed about the action to be taken for her explanation in this regard but the Board straightaway issued notice under Section 256 of the Cantonments Act and therefore, the said notice is void ab initio for non-compliance of requirement of Section 256 of the Act.
6. It was further submitted that when the appellant received no communication after her explanation was offered to the earlier notice issued under Section 185(1) of the Act and as there was a gap of more than four years from the first notice issued under Section 185(1) as per Ex. D. 2 and subsequent notice issued under Section 256 of the Act on 12-3-1988, the appellant was under the impression that her explanation has been accepted in respect of violations in the construction is concerned. Therefore, the subsequent notice issued under Section 256 of the Act came as a shock to her and as she was not given any opportunity to make her say and as the notice itself did not refer to the explanations given by her, the impugned order issued as per Ex. P. 4 cannot be termed as a speaking order and hence, it was void ab initio. As far as requirement of notice before filing the suit is concerned, it was submitted that suit was filed for injunction and as there is no bar for seeking injunction from the Trial Court in view of Section 273 of the Cantonments Act, 1924, the appellant sought amendment of the prayer by including the relief of declaration so that the injunction could be granted in her favour. Under the said circumstances, non-issuance of notice to the Board before instituting the suit cannot be a fatal infirmity. Both the Courts below erred in appreciating the evidence on record and also the provisions of law and the principles applicable in respect of bar of suits and therefore, the judgment and decree passed by the Courts below cannot be sustainable in law. In support of the said submission, he placed reliance on a decision of the Lucknow Bench of Allahabad High Court in Vishwanath Goyal (deceased) by L.Rs and Ors. v. Cantonment Board, Agra to submit that the jurisdiction of the Civil Court was not barred in giving relief to the appellant.
7. In the light of the submissions made as above, I proceed to answer the substantial questions of law as under:
8. The admitted facts as could be seen from the pleadings and evidence of the parties are that the appellant is the owner of suit schedule house and she sought for sanction to put up a new construction as per Ex. P. 11 and it is admitted by D.W. 1, an officer of the Board in the course of his cross-examination that sanction was accorded to the appellant to put up the new construction. In fact, at paragraph 4 of the cross-examination, D.W. 1, the Assistant Engineer of the Cantonment Board, has stated that the application submitted by the appellant as per Exs. P. 1 and P. 1(a) were considered and sanctioned by the Board. Ex. D. 1 is the sketch showing the unauthorised construction and the said sketch was drawn by one Sambrekar, draftsman, as per evidence of D.W. 1. Ex. D. 2 is the notice issued under Section 185(1) of the Cantonments Act and this notice is dated 12-4-1984. As p "is notice, the appellant was given 30 days' time to remove the authorised construction. The appellant gave reply to the said notice as per her letter dated 12-4-1984. The appellant received another notice as per Ex. P. 5, dated 15-9-1987 requiring her to appear before the Board on 30-9-1987. It has come in the evidence of the appellant that she did offer her explanation to the defendant-Board and she was informed that the Board would withdraw the notice issued to her. Later nothing happened for about six months. It was only on 2-3-1988, almost after six months that the Board issued notice under Section 256 of the Cantonments Act. The said notice which is at Ex. P. 4 reads thus:
Notice is hereby given that the works mentioned in the aforesaid notice will be demolished through the agency of the Cantonment Board on 15-3-1988 at 11-00 Hrs. in accordance with the provisions contained in Section 256 of the Cantonments Act, 1924 (II of 1924) and expenses incurred by the Cantonment Board on demolition work shall be recovered from you. Besides you are also liable for action under Section 268.
9. From the above narration of events, it is clear that after explanation was offered by the appellant both to the first notice issued on 12-4-1984 under Section 185(1) of the Cantonments Act and subsequent notice dated 15-9-1987, the Board did not take any action and as the earlier notice had prescribed a time-limit of thirty days for removal of unauthorised construction, the appellant therefore, was under the impression that as the period has expired and even after issue of letter as per Ex. P. 5, dated 15-9-1987, nothing transpired nor any action taken, the appellant had every reason to feel that her explanation had been accepted by the Board. However, the notice under Section 256 came to be issued once again fixing the time-limit of 30 days to remove the unauthorised construction and the said notice does not speak about the explanation offered by the appellant nor is there anything in the said notice to indicate that the Board was not satisfied with the explanation offered by the appellant.
10. Under the said circumstances, it cannot be said that the appellant cannot seek remedy from the Civil Court but has to approach the authorities under the Cantonments Act, 1924, by preferring an appeal. As the appeal period was over long back having regard to the notice issued under Section 185(1) of the Act as far back in the year 1984 itself and subsequent events also led to the appellant feeling assured of her explanation having been accepted by the Board and no action was taken for a long period of time and even after expiry of 30 days from 30-9-1987, the Board ought to have heard the appellant before issuing notice under Section 256 of the Act, as there was a long gap of more than six months between the date on which the appellant required to offer her explanation and issuance of notice under Section 256 of the Act.
11. Sub-section (4) of Section 273 of the Cantonments Act, 1924, reads as under:
Nothing in Sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit or proceeding.
12. It is therefore clear that the requirement of notice before instituting the suit is not required where the relief sought is an injunction. In the instant case, as the appellant was threatened with demolition of new construction, she has sought relief of injunction from the Trial Court and in order to ensure that she succeeds in getting the relief, she also sought for declaration that notice issued under Section 185(1) and Section 256 of the Act are void ab initio.
13. Since the appellant had sought the above relief from the Trial Court, and as Section 254(1) also contemplates requirement of issuing notice to the aggrieved persons before taking any action in respect of the demolition of any erection, the authorities ought to have complied with the said statutory requirement. Having accepted the explanation given by the appellant and the sanction having been accorded to her also confirming the construction, legal, it was incumbent on the part of the Board to have followed the statutory requirement. Therefore, it cannot be said that jurisdiction of the Civil Court is barred under such circumstances. The said view of mine also gets fortified by the observations of the Apex Court in the following cases.
14. In the case of Dhulabhai v. State of Madhya Pradesh and Anr. , the Apex Court has laid down the following principles regarding exercise of jurisdiction of the Civil Court:
(1) Where the statute gives a finality to the orders of the special Tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply: Case-law discussed.
15. In another decision, in the case of State of Tamil Nadu v. Ramalinga Samigal Madam , dealing with the question concerning the ouster of Civil Court's jurisdiction under Section 64-C of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (26 of 1948). The Supreme Court observed thus:
It is true that Section 64-C of the Act gives finality to the orders passed by the Government or other authorities in respect of the matters to be determined by them under the Act and Sub-section (2) thereof provides that no such orders shall be called in question in any Court of law. Even so, such a provision by itself is not decisive on the point of ouster of the Civil Court's jurisdiction and several other aspects like the scheme of the Act, adequacy and sufficiency of remedies provided by it etc., will have to be considered to ascertain the precise intendment of the Legislature. Further, having regard to the vital difference in between the two sets of provisions dealing with grant of ryotwari pattas to landholders on the one hand and ryots on the other different considerations may arise while deciding the issue of the ouster of Civil Court's jurisdiction to adjudicate upon the true nature or character of the concerned land. Approaching the question from this angle it will be seen in the first place that Section 64-C itself in terms provides that the finality to the orders passed by the authorities in respect of the matters to be determined by them under the Act is "for the purposes of this Act" and not generally nor for any other purpose. The main object and purpose of the Act is to abolish all the estates of the intermediaries like Zamindars, Inamdars, Jagirdars or under tenure holders etc., and to convert all landholdings in such estates into ryotwari settlements which operation in revenue parlance means conversion of alienated lands into non-alienated lands, that is to say, to deprive the intermediaries of their right to collect all the revenues in respect of such lands and vesting the same back in the Government. The enactment and its several provisions are thus intended to serve the revenue purposes of the Government, by way of securing to the Government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the Government and in that proceeds, if necessary, to deal with claims of occupants of lands, nature of the lands, etc., only incidentally in a summary manner and that too for identifying and registering persons in the revenue records from whom such recovery of revenue is to be made.
Further, even where the statute has given finality to the orders of the special Tribunal the Civil Court's jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. In other words, even where finality is accorded to the orders passed by the special Tribunal one will have to see whether such special Tribunal has powers to grant reliefs which Civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of Civil Court's jurisdiction. It lies within the power and the jurisdiction of the Settlement Officer merely to grant or refuse to grant the patta on the materials placed before him. But such a person even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Government's interference otherwise than in due course of law and surely before granting such relief the Civil Court may have to adjudicate upon the real nature or character of the land if the same is put in issue. In other words, since the Settlement Officer has no power to do what Civil Court would normally do in a suit it is difficult to imply ouster of Civil Court's jurisdiction simply because finality has been accorded to the Settlement Officer's order under Section 64-C of the Act.
16. Therefore, having regard to the above proposition of law laid down by the Apex Court, I am of the view that the facts and circumstances on hand left the appellant with no other remedy than to approach the Civil Court for the relief of injunction and as the limitation of 30 days prescribed in the notice issued under Section 185(1) of the Cantonments Act, 1924 was over and in view of the explanation given by the appellant pursuant to her appearance before the Board after 30-9-1987 was also over and long after these events, notice under Section 256 was issued almost after four years of the first notice issued under Section 185(1) of the Act, the appellant cannot be said to have been declared from seeking relief from the Civil Court where the main prayer sought was injunction and the validity of notice as void ab initio was projected in order to support the relief of injunction sought, and hence non-issuance of notice as required under Section 273(1) of the Act, therefore was not a serious infirmity nor can it be said contrary to the provisions of Cantonments Act when Section 273(4) dispenses with the requirement of notice where the relief of injunction is sought. The substantial question of law therefore raised is answered accordingly.
17. For the foregoing reasons, the judgment and decree passed by the Courts below cannot be sustained in law and they being contrary to the material on record and being contrary to the law laid down by the Apex Court referred to above, and also being contrary to the principles laid down in the case of Vishwanath, referred to by the appellants' Counsel, the appeal has to succeed and hence, I pass the following order:
ORDER The appeal is allowed. The judgment and decree of the Courts below stand set aside. The respondent-Board is at liberty to take fresh action if it deems fit to take and if it decides to do so, it shall follow the requirement of law as provided under the Cantonments Act and only after strict compliance of statutory provisions, the Board can take necessary action, as is opened to it in law. No costs.