Cantonment Board Agra Cantt And Another vs Smt. Pushpa Rani And Others on 26 May, 2020

[Cites 59, Cited by 0]

Allahabad High Court

Cantonment Board Agra Cantt And Another vs Smt. Pushpa Rani And Others on 26 May, 2020

Bench: Ajay Bhanot





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
In Chamber
 

 
Case :- SECOND APPEAL No. - 904 of 2003
 
Appellant :- Cantonment Board Agra Cantt And Another
 
Respondent :- Smt. Pushpa Rani And Others
 
Counsel for Appellant :- C.B. Gupta
 

 
Hon'ble Ajay Bhanot,J.

1. The instant second appeal arises out of the judgment and decree dated 28.03.2003 entered by the learned Additional District and Sessions Judge, Court No. 17, in Civil Appeal No. 159 of 1999 (Cantonment Board, Agra Cantt. Vs. Smt. Pushpa Rani Gupta and Others), which has affirmed the judgment and decree dated 29.04.1999, rendered by the learned IInd Additional Civil Judge (Senior Division), Agra, in Original Suit No. 1300 of 1984, Sri Chiman Lal (since deceased) Through L.Rs. Vs. Cantonment Board, Agra and Others), granting an injunction in favour of the plaintiff.

2. This appeal has been instituted by the Cantonment Board, Agra, arrayed as defendant no. 1, in the Original Suit No. 1300 of 1984, Sri Chiman Lal (since deceased) Through L.Rs. Vs. Cantonment Board, Agra and others).

3. On orders passed by this Court on 05.03.2019 notices were issued to the respondents, by ordinary process as well as by RPAD. The service report on notice sent by RPAD records, "neither undelivered cover nor AD received back after service as yet". The report of the process server regarding service of notice upon respondents 1 to 9, endorsed the remark "refused to accept".

4. In view of the service reports mentioned above, the service upon the respondents is sufficient. No one has appeared on behalf of respondent nos. 1 to 9, despite service of notices. The Court proceeded to hear the matter on merits.

5. Civil action was brought by the plaintiff, by instituting Original Suit No. 1300 of 1984, Sri Chiman Lal Gupta (since deceased) through L.Rs. Vs Cantonment Board, Agra and others before the learned IInd Additional Civil Judge (Senior Division), Agra. The plaintiff prayed for permanently injuncting the defendant no. 1/Cantonment Board from demolishing or damaging any part of the suit property. The description of the property as given at the foot of the plaint is, 90 Grand Parade Road, Agra Cantt, Agra. The L.Rs. of the plaintiff Chiman Lal (since deceased) were duly substituted on 14.07.1987 in the court below.

6. According to the plaint, the plaintiff-respondents sought requisite sanction from the competent authority of the Cantonment Board, Agra, for renovation and reconstruction of the disputed property. The sanction was not granted by the competent authority. The plaintiff, however, started reconstruction of the disputed property. The defendant no. 1-appellant took out proceedings under the Cantonments Act, 1924 (as amended from time to time) against the plaintiffs, for erecting constructions/re-erection of constructions without requisite permission from the competent authority under the Cantonments Act, 1924 (as amended from time to time). The defendant no. 1-appellant noticed the plaintiffs on 05.12.1984, to show cause as to why the newly erected constructions be not demolished, for want of sanction and having been made in violation of the provisions of the Cantonments Act, 1924 (as amended from time to time). The cause of action for the suit, according to the plaint, arose when the defendant no.1-appellant issued a notice dated 05.12.1984, for demolition of the aforesaid constructions raised by the plaintiffs on the disputed property.

7. The defendant no. 1-appellant entered a written statement in opposition to the plaint. The written statement asserted that the construction was unauthorised, and was liable to be demolished under the provisions of the Cantonments Act, 1924 (as amended from time to time). The defendant no. 1-appellant took a specific plea of lack of jurisdiction of the trial court.

8. According to the written statement, the suit was premature since no demolition order was passed against the appellants.

9. The Cantonment Board also took out other notices dated 03.12.1984 (Paper no. 66-ga) 04.12.1984, (Paper no. 68-ga), 05.12.1984 (Paper no. 11-ga, 11.12.1984 (Paper no. 75-ga) issued under Section 179 read with Section 184 of the Cantonments Act, 1924 (as amended from time to time). The notice dated 03.12.1984 directed the plaintiff to show cause, as to why he should not be prosecuted under Section 184 of the Cantonments Act, 1924 (as amended from time to time), and why action be not taken for demolition of the unauthorised constructions under Section 185 read with Section 256 of the Cantonments Act, 1924 (as amended from time to time).

10. Various communications sent by the Cantonment Board, (which are in the record), required the plaintiff to furnish information regarding the building plan in triplicate, together with one copy of tracing cloth showing the plinth area of the constructions. These communications also reveal that the building plan submitted by the appellant was rejected, and forwarded to the Cantonment Board for formal rejection.

11. The learned trial court in its judgment and decree entered on 29.04.1999, found that the suit was not barred, and the jurisdiction of the civil court was not ousted. The suit was for an injunction, to restrain the defendants from demolishing the property in dispute. There was no requirement to give any notice under Section 273 of the Cantonments Act, 1924 (as amended from time to time). Consequently failure to give any notice under Section 273 of the Cantonments Act, 1924 (as amended from time to time) did not vitiate the suit proceedings. By the said judgment and decree the learned trial court found for the plaintiffs/respondents, and permanently injuncted the defendant no. 1-appellant from demolishing the property in dispute.

12. The defendant no. 1-appellant took the judgment and decree of the learned trial court in appeal, by instituting Civil Appeal No. 159 of 1999 (Cantonment Board, Agra Cantt. Vs Smt. Pushpa Rani Gupta and others). The appellate court in its judgment and decree dated 28.03.2003, agreed with the findings of the learned trial court, and held that the civil court was possessed of the jurisdiction to try the suit. The injunction granted in favour of the plaintiff-respondents was upheld.

13. Sri C.B. Gupta, learned counsel for the appellant contends that the suit was premature, as no cause of action had arisen. The notice under Section 179 read with Section 184 and Section 185 of the Cantonments Act, 1924 (as amended from time to time), only required the plaintiff to show cause on the issue of illegal constructions. The competent authority did not finally adjudicate the matter.

14. It is also submitted that the Cantonments Act, 1924 (as amended from time to time) is a complete code. The jurisdiction of the trial court stands impliedly barred in view of provisions of Section 9 of CPC, read with the relevant provisions of the Cantonments Act, 1924 (as amended from time to time).

15. Sri C.B. Gupta, learned counsel for the appellant agrees, that following substantial questions of law arise for determination in the instant second appeal;

(I) Whether the learned courts below lacked the jurisdiction to try the suit? If yes, the consequences thereof ?

(II). Whether in view of the fact that the plaintiff not replied to the show cause notices issued by the competent authority, under Section 179 read with Section 184 and Section 185 of the Cantonments Act, 1924 (as amended from time to time), and the proceedings pursuant to the show cause notices had not culminated in any final order, the suit was premature and was liable to be dismissed as such and the learned courts below erred in law by injuncting the defendant no.1-appellant from demolishing or interfering with the disputed construction ?

16. The facts found by the courts below, which relevant to this appeal are these. Notices dated 03.12.1984/04.12.1984, 05.12.1984 and 11.12.1984 under Section 179 read with Section 184 and read with Section 185 of the Cantonments Act, 1924 (as amended from time to time) were issued to the plaintiffs/respondents. The said notices, required the plaintiffs-respondents to show cause against acts of unauthorised constructions and encroachment of cantonment lands.

17. Deemed approval of the building plan was found in favour of the plaintiffs-respondents. Pertinently however, the rejection application of the plaintiffs-respondents for sanction of the building plan, by the Cantonment Board, remained undisputed. The other notices dated 03.12.1984 (Paper no. 66-ga) 04.12.1984, (Paper no. 68-ga), 05.12.1984 (Paper no. 11-ga, 11.12.1984 (Paper no. 75-ga) under the like provisions of the Cantonments Act, 1924 (as amended from time to time), and bear the same content are in the record. The notice dated 04.12.1984 also referenced the unauthorised constructions made on the disputed premises, and recites the documents relied upon by the Cantonment Board.

18. In this narrow compass of established facts, the substantial questions of law shall be decided.

19. The narrative will now be taken forward with assistance of authorities, on implied ouster of jurisdiction of civil courts.

20. Upon an exhaustive survey of authorities holding the field, the Hon'ble Supreme Court in Dhulabhai Vs State of Madhya Pradesh and another, reported at AIR 1969 SC 78, laid down the following broad principles regarding the exclusion of jurisdiction of the civil court:

" The result of this inquiry into the diverse views expressed in this Court may be stated as follows :-

(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 Courts 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 ques- tions 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 the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."

21. Whether statutes providing for specific remedies to be sought from a particular forum in a prescribed manner caused the ouster of jurisdiction of the civil court, was posed for consideration before the Hon'ble Supreme Court in Munshi Ram and others Vs Municipal Committee, Chheharta reported at 1979 (3) SCR 463. After considering the scheme of the Punjab Municipal Act, in particular Sections 84 and 86, which provide for hearing and determination of objections to the levy of provisional tax under the said Act, law was laid down by the Hon'ble Supreme Court in the following terms:

" From a conjoint reading of Sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. The Act further provides a particular forum and a specific mode of having this remedy which is analogous to that provided in Section 66(2) of the Indian Income tax Act, 1922 Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.

It is well-recognised that there a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in a particular form in a particular way it must be sought in that form and in that manner, and all other forums and modes of seeking it are excluded. Construed in the light of this principle, it is clear that Sections 84 and 86 of the Municipal Act bar, by inevitable implication, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment: under this Act."

22. The rights created by the statute and the existence of machinery for enforcement of such rights, are germane considerations in an enquiry into the issue of implied ouster of jurisdiction of civil courts, according to following holding of the Hon'ble Supreme Court in Raja Ram Kumar Bhargava (dead) by L.Rs. Vs Union of India reported at AIR 1988 SC 752:

" Generally speaking the broad guiding considerations with regard to institution of suits are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provides a machinery for the enforcement of the right, both the right and the remedy having been created uno-flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts' jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, with out expressly excluding the Civil Courts' jurisdiction, then both the common law and the statutory remedy might become concurrent remedies leaving open an element. Of election to the persons of inherence."

23. This Court in Atul Kumar Jain Vs Cantonment Board, Meerut Cantt reported at 2007 (3) ALJ 282 held a suit against the Cantoment authorities to be incompetent, on account of existence of an internal remedy of appeal provided by the Cantonments Act, 1924 under Section 274, by holding thus:

" As regards the bar of suit under section 41(h) of the Specific Relief Act, it is quite obvious that since service of notice upon the appellant is held to be sufficient, he had every opportunity and occasion to file appeal as provided under section 274 of the Cantonment Act and if he has not availed of the said remedy before coming to the Civil Court for the relief of permanent injunction, the suit cannot be held to be competent for the grant of such relief. The findings recorded in this regard by the Courts below are also wholly justified."

24. In Premier Automobiles Ltd. Vs Kamlekar Shantaram Wadke of Bombay and others reported at 1976 (1) SCC 496, the jurisdiction of the civil court to entertain labour disputes arose for consideration, in the context of the rights created and the remedies offered by the Industrial Disputes Act. The Hon'ble Supreme Court in Premier Automobiles Ltd. (supra) relied upon the well established and cogently enunciated principles of law laid down by the English courts:

" The decision of the House of Lords in the case of Barraclough v. Brown and other(1) is very much to the point. The special statute under consideration there gave a right to recover expenses in a court of Summary Jurisdiction from a person who was not otherwise liable at common law. It was held that there was no right to come to the High Court for a declaration that the applicant had a right to recover the expenses in a court of Summary Jurisdiction. He could take proceedings only in the latter court. Lord Herschell after referring to the right conferred under the statue "to recover such expenses from the owner of such vessel in a court of summary Jurisdiction" said at page 620.

"I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone confers the right."

Lord Watson said at page 622:

"The right and the remedy are given uno flatu, and the one cannot be dissociated from the other."

In other words if a statute confers a right and in the same breach provides for a remedy for enforcement of such right the remedy provided by the statute is an exclusive one. But as noticed by Lord Simonds in Cutler v. Wandsworth Stadium Ltd. (supra) at page 408 from the earlier English cases, the scope and purpose of a statute and in particular for whose benefit it is intended has got to be considered. If a statute:

"intended to compel mine owners to make due provision for the safety of the man working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger,"

there arises at common law:

"a co-relative right in those persons who may be injured by its contravention."

Such a type of case was under consideration before Lord Goddard, C.J. in the case of Solomons v. R. Gertzenstain Ltd. and other vide page 831. Lord Denning M. R. relied upon the principles enunciated by Lord Tenterden in Doe v. Bridges approved in Pasmore's case (supra) at page 743 in the case of Southwark London Borough Council v. Williams and another(2). The celebrated and learned Master of the Rolls said at page 743.

"Likewise here in the case of temporary accommodation for those in need. It cannot have been intended by Parliament that every person who was in need of temporary accommodation should be able to sue the local authority for it: or to take the law into his own hands for the purpose."

25. Thereafter reliance was also placed on a Full Bench judgment of the Lahore High Court in Municipal Committee, Montgomery Vs Master Sant Singh reported at AIR 1940 Lah 377, wherein the consequences of a special piece of legislation creating particular rights, and providing special remedies was considered in the following passage:

"If therefore a demand made by a Committee is not authorised by the Act and the person affected thereby objects to the payment on the ground that in making the demand the Committee was exercising a jurisdiction not vested in it by law, it can, by no stretch of language, be said that he is objecting to his liability to be taxed under the Act. Any special piece of legislation may provide special remedies arising therefrom and may debar a subject from having recourse to any other remedies, but that bar will be confined to matters covered by the legislation and not to any extraneous matter."

26. Finally the Hon'ble Supreme Court in Premier Automobiles Ltd. (supra) held thus:

"31. On the facts of this case it is all the more clear that the civil court has no jurisdiction to try it. The manner of voluntary reference of industrial disputes to arbitration is provided in section 10A of the Act. The reference to arbitration has to be on the basis of a written agreement between the employer and the workman. As provided in sub-section (5) nothing in the Arbitration Act, 1940 shall apply to arbitrations under section 10A of the Act. There is no provision in the Act to compel a party to the agreement to nominate another arbitrator if its nominee has withdrawn from arbitration. The company had terminated the agreement dated the 14th March, 1968 under section 19(2) of the Act. On the authority of this Court in Sought South Indian Bank Ltd. V A.R. Chacko, Mr. Iyer endeavoured to argue that in spite of the termination of the agreement it still continued to be in force. Apart from the fact that the decision of this Court was with reference to the termination of the award under section 19, it is clear that the termination of the agreement in this case was accepted by the union. It sought to challenge it by the institution of a suit. It is clear that the suit was in relation to the enforcement of a right created under the Act. The remedy in Civil Court was barred. The only remedy available to the workmen concerned was the raising of an industrial dispute. It was actually raised, and, as a matter of fact, shortly after the institution of the suit the disputes were referred by the Government to the Industrial Tribunal in I.T. No. 33 of 1972 on the 25th January, 1972.

32. For the reasons stated above both the appeals are allowed, the judgments and orders of the courts below are set aside. But in the circumstances we shall make no order as to costs in either of the appeals."

27. In State of Kerala Vs N. Ramaswami Iyer and Sons reported at AIR 1966 SC 1738, in the context of the Travancore-Cochin General Sales Tax Act the Hon'ble Supreme Court, applied principle of implied ouster of the civil court on the foot, that the legislature had set up a special tribunal, to determine the question relating to rights or liabilities which had been created by the statute.

28. The consistent propositions of law which can be distilled from the preceding authorities, are that the courts will not readily presume ouster of jurisdiction of the civil court. A statute may explicitly oust the jurisdiction of the civil courts. In cases where no express ouster of jurisdiction is made by an explicit command of legislature, the jurisdiction of the civil courts may be excluded by application of doctrine of implied ouster.

29. To decide the issue of implied ouster of jurisdiction of civil courts, the courts have to make an enquiry on the following lines. The enquiry will commence with the determination of the legislative intent, or the mischief sought to be cured by the legislature while enacting the statute. This line of enquiry shall be pursued by examining the scheme of the statute. The courts shall consider, whether the rights claimed are common law rights, or statutory rights. In case the rights are exclusively created and fully regulated by the statute, it will strengthen the presumption of implied ouster of jurisdiction of civil courts. However, the enquiry shall not cease just yet. The courts shall scrutinize the procedure and mechanism of adjudication of such statutory rights. The efficacy and finality of statutory remedies of appeals against the adjudicatory orders, under the statute will then be searchingly tested. The result of this enquiry will enable the court, to determine whether the jurisdiction of the civil court has been impliedly ousted or not. Affirmative answers to such enquiries will tilt the judicial opinion in favour of ouster of jurisdiction of civil courts.

30. The Cantonments Act, 1924 (as amended from time to time), does not expressly oust the jurisdiction of the civil courts, in regard to matters of erection of unauthorized constructions. It has to be enquired, whether the jurisdiction of civil courts is impliedly ousted in such issues.

31. The survey of the provisions of the Cantonments Act, 1924 (as amended from time to time), will be foregrounded with insights into the establishment of cantonments, and development of laws in regard to the lands and properties comprised therein.

32. The lands comprised in the cantonments throughout the country were originally acquired by the British Government in India (the predecessor of the Government of India) for military purposes, either by right of conquest or by treaty arrangements with a Ruling Chief / ruling of the day, or by payment of compensation. The cantonments were established for military facilities, and quartering military personnel. (Ref: Cantonment Laws by J.P. Mitthal)

33. The nature of the rights of the inhabitants of such areas acquired or ceded, to the British Government in India fell for determination before the Privy Council in Vajesingji Joravarsingji Nayak vs The Secretary of State For India, reported at AIR 1924 PC 21. After summarising the law on the point, the Privy Council held thus:

"But a summary of the matter is this: when a territory is acquired by a sovereign state for the first time that is an Act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto nnoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can only make good in the municipal Courts established by the new sovereign such rights as the sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is. stipulated that certain inhabitants should enjoy certain rights, that does not give a title to these inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the High Contracting Parties.

34. The Privy Council judgment in Vajesingji Joravarsingji Nayak (supra) was followed in Raja Rajinder Chand vs Sukhi, reported at AIR 1957 SC 286.

35. After the acquisition of lands and inception of the cantonments the lands comprising the cantonment areas were vested in the Government of India. Right of private ownership of such lands situated within the cantonments did not exist.

36. From time to time, the lands and permission to erect constructions thereon were granted by the Government of India /cantonment authorities to private individuals. The allotment of land to erect houses in the Cantonment, did not confer the allottee with proprietary rights on the land. The rights of such individuals were confined only to the ownership of the buildings erected on the cantonment lands. The land continued to be the property of the Government, and was resumable at the pleasure of the Government according to the prescribed conditions.

37. The tenure under which permission was given to occupy government land in the Cantonments, for constructions of bungalows, came to be known as "Old Grant". Such grants of land and permission for constructions, was always guided and strictly controlled by Government policy, and the military/cantonment authorities administering the cantonment area.

38. The summation of land rights in cantonments is this. The rights of ownership of land and proprietary rights in the soil in cantonment lands, always vested exclusively in the Government of India. The right of ownership of land was not conferred upon in any individual allottee. Right of construction of buildings in cantonments has always been granted, restricted and controlled by the Government authorities/cantonment authorities. The common law rule that whatever is affixed to the soil, belongs to the soil was not made applicable to lands in cantonment areas. Rights of individuals over cantonment lands are not rights at common law. The right of private individuals to erect constructions on land in cantonment areas, is not a right existing from time immemorial.

39. The right of residents of cantonment areas to construct buildings thereon, was thus always conferred and controlled by cantonment authority / government authority since the inception of cantonments as are understood in this country. Various legal instruments of the day were employed by cantonment/Government authority, to create, regulate and restrict the right to erect constructions in the cantonment areas.

40. These factors militate against construing the right of erection of a fresh building, or repairing of an old building in a cantonment area, as preexisting common law rights. These are not common law rights. The authorities and the courts cannot be shackled, by common law doctrines, in regard to the aforesaid rights. It is evident now, and the subsequent discussion will fully confirm, that the right to erect fresh constructions or repair old constructions in cantonment lands is a statutory right.

41. The pre-existing restrictions on the right to raise constructions in the cantonment lands, and the power vested in the authorities to regulate such restrictions were consolidated and formalised in the Cantonments Act, 1924 (as amended from time to time).

42. The Cantonments Act, 1924, (as amended from time to time) was brought into being, to consolidate and amend the law relating to the administration of cantonments. The cantonments which are covered by the Cantonments Act, 1924 (as amended from time to time), are areas where military garrisons and establishments are located, along side habitations of civilian populations. Serving military personnel and their families are quartered in the cantonments. Sensitive military assets and installations, are also situated in the cantonment areas.

43. The cantonment areas by there very nature have a direct bearing on national security. The Cantonments Act,1924 (as amended from time to time) read with Rules created thereunder, form a complete code. The Cantonments Act, 1924 (as amended from time to time) provides a comprehensive blueprint of administration of cantonments areas. The legislature has very neatly balanced the imperatives of national security, with the demands of individual rights. Under the Cantonments Act,1924 (as amended from time to time) the rights of the civilian populations, are not overborne or overridden only in the name of the national security. Various statutory rights have been conferred upon the civilian population, under the Cantonments Act, 1924 (as amended from time to time).

44. Provisions of the Cantonments Act, 1924 (as amended from time to time), relevant to the controversy are discussed hereinunder:

45. Chapter II and III of the Cantonments Act, 1924 (as amended from time to time) provide for the definition and delimitation of the cantonments. Section 3 of the Cantonments Act, 1924 (as amended from time to time) contemplates that the Central Government may by a notification, define the limits of the cantonment. The cantonment is a place as declared in the notification, in which any part of the defence forces are quartered, or places are in the vicinity of any such place, or are required for the service of such forces to be a cantonment for the purposes of the Cantonments Act, 1924 (as amended from time to time).

46. The administration of the cantonment is managed by the Cantonment Board created under Chapter III. Chapter III also provides for constitution of the Cantonment Boards. The provisions of Chapter III contemplate elections for members of the Cantonment Board. The municipal governance of Cantonments is carried out by the Cantonment Boards constituted under Section 13 of the Cantonments Act, 1924 (as amended from time to time). The members of the Cantonment Boards, are elected by the electoral college composed of the persons who are enrolled as Electors, under the Cantonments Act, 1924 (as amended from time to time). In this regard reference may be made to Sections 26 to 28 of the Cantonments Act, 1924 (as amended from time to time). Procedures for meetings of the Cantonment Board are also provided under various provisions of Chapter III.

47. The Cantonment Board is vested with powers of taxation under Chapter V. The powers for suppression of nuisances are contemplated in provisions contained in Chapter IX. Sanitation and the measures for prevention and treatment of diseases are visualized in provisions of Chapter X of the Cantonments Act, 1924 (as amended from time to time).

48. Chapter XII and provisions contained therein contemplate markets, slaughter-houses, trades and occupations and regulation thereof. Provisions regarding water-supply, drainage system and lighting are contained in Chapter XIII of the Cantonments Act, 1924 (as amended from time to time). The provisions as discussed above reveals that the Cantonment Board virtually functions like an autonomous local body.

49. The control over building constructions, streets, boundaries, trees etc. in the cantonment premises, are vested in the competent authorities of the cantonment, by virtue of provisions of Chapter XI of the Cantonments Act, 1924 (as amended from time to time).

50. Chapter XI commences with the heading "Control Over Buildings, Streets, Boundaries, Trees, etc."

51. Section 178-A provides for sanction for building:

"Sanction for building.- No person shall erect or re-erect a building on any land in a cantonment-

(a) in an area, other than the civil area, except with the previous sanction of the Board,

(b) in a civil area, except with the previous sanction of the Executive Officer, nor otherwise than in accordance with the provisions of this Chapter and of the rules and bye-laws made under this Act relating to the erection and re-erection of buildings."

52. Section 179 contemplates a written notice of intent to erect or re-erect any building in the Cantonment:

"179. Notice of new buildings.- Whoever intends to erect or re-erect any building in a cantonment shall [apply for sanction by giving notice] in writing of his intention to the [Board].

(2) For the purposes of this Act, a person shall be deemed to erect or re-erect a building who-

(a) makes any material alteration or enlargement of any building, or

(b) converts into a place for human habitation any building not originally constructed for that purpose, or

(c) converts into more than one place for human habitation a building originally constructed as one such place, or

(d) converts two or more places of human habitation into a greater number of such places, or

(e) converts into a stable, cattle-shed or cowhides any building originally constructed for human habitation, or

(f) makes any alteration which there is reason to believe is likely to affect prejudicial the stability or safety of any building or the condition of any building in respect of drainage, sanitation or hygiene, or

(g) makes any alteration to any building which increases or diminishes the height of, or area covered by, or the cubic capacity of, the building, or which reduces the cubic capacity of any room in the building below the minimum prescribed by any bye-law made under this Act."

53. Section 180 provides for the conditions of a valid notice:

"180. Conditions of valid notice.-(1) A person giving the notice required by section 179 shall specify the purpose for which it is intended to use the building to which such notice relates.

(2) No notice shall be valid until the information required under sub-section (1) and any further information and plans which may be required under bye-laws made under this Act have been furnished to the satisfaction of the [Board].along with the notice"

54. Certain powers of the Board in regard to constructions are exercisable by the Executive Officer under Section 180-A:

"180-A: Powers of Board under certain sections exercisable by Executive Officer- The powers, duties and functions of the Board under section 181, sub-section (1) of section 182, section 183, section 183-A and section 185 [excluding the provisos to sub-section (1) and the proviso to sub-section (2) of the said section 185] shall be exercised or discharged in a civil area by the Executive Officer."

55. The power to grant or refuse the sanction of erection or re-erection, is vested in the Board by virtue of Section 181 and 181-A:

"181. Power of Board to sanction of refuse.- (1) The [Board] may either refuse to sanction the erection or re-erection, as the case may be, of the building, or may sanction it either absolutely or subject to such directions as it thinks fit to make in writing in respect of all or any of the following matters, namely:-

(a) the free passage or way to be left in front of the building;

(b) the space to be left about the building to secure free circulation of air and facilitate scavenging and the prevention of fire;

(c) the ventilation of the building, the minimum cubic area of the rooms and the number and height of the storyes of which the building may consist;

(d) the provision and position of drains, latrines, urinals, cesspools or other receptacles for filth;

(e) the level and width of the foundation, the level of the lowest floor and the stability of the structure;

(f) the line of frontage with neighbouring buildings if the building abuts on a street;

(g) the means to be provided for agrees from the building in case of fire;

(h) the materials and method of construction to be used for external and party walls for rooms, floors, fire-places and chimneys;

(i) the height and slope of the roof above the uppermost floor upon which human beings are to live or cooking operations are to be carried on; and

(j) any other matter affecting the ventilation and sanitation of the buildings;

and the person erecting or re-erecting the building shall obey all such written directions in every particular.

[(2) The Board may refuse to sanction the erection or re-erection of any building, either on grounds sufficient in the opinion of the Board affecting the particular building, or in pursuance of a general scheme sanctioned by the Officer Commanding-in-Chief, the Command, restricting the erection or re-erection of buildings within specified limits for the prevention of over-crowding or in the interests of persons residing within such limits or for any other public purpose.

(3) The Board, before sanctioning the erection or re-erection of a building on land which is under the management of the Military Estates Officer, shall refer the application to the Military Estates Officer for ascertaining whether there is any objection on the part of Government to such erection or re-erection; and the Military Estates Officer shall return the application together with his report thereon to the Board within thirty days after it has been received by him.

(4) The Board may refuse to sanction the erection or re-erection of any building-

(a) when the land on which it is proposed to erect or re-erect the building is held on a lease from the Government, if the erection or re-erection constitutes a breach of the terms of the lease, or

(b) when the land on which it is proposed to erect on re-erect the building is not held on a lease from the Government, if the right to build on such land is in dispute between the person applying for sanction and the Government.

(5) If the Board decides to refuse to sanction the erection or re-erection of the building, it shall communicate in writing the reason for such refusal to the person by whom notice was given.

(6) 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 this 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 further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or re-erection, 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 the report referred to in that sub-section.]"

"[181A. Power to sanction general scheme for prevention, of overcrowding, etc The Officer Commanding-in-Chief, the Command may sanction a general scheme of erection or re-erection of buildings within such limits as may be specified in the sanction for the prevention of over-crowding or for purpose of sanitation, or in the interest of persons residing within those limits or for any other purpose, and may, in pursuance of such scheme, impose restrictions on the erection or re-erection of buildings within those limits:

Provided that no such scheme shall be sanctioned by the Officer Commanding-in-chief, the Command, unless an opportunity has given by a public notice to be published locally by the Executive Officer requiring persons affected or likely to be affected by the proposed scheme, to file their objections or suggestions in the manner specified in the notice, within a period of fifteen days of the publication of such notice, and after considering such objections and suggestions, if any, received by the Executive Officer within the said period.]"

56. Section 183 provides for lapse of sanction:

"Section 183 - Lapse of sanction Every sanction for the erection or re-erection of a building given or deemed to have been given by the1[Board] as hereinbefore provided shall be available for one year from the date on which it is given, and, if the building so sanctioned is not begun by the person who has obtained the sanction or some one lawfully claiming under him within that period, it shall not thereafter be begun2[unless the Board on application made therefore has allowed an extension of that period]."

57. Section 183-B contemplates the submission of a completion notice, to be given in writing to the Board or Executive Officer:

"183B. Completing notice Every person to whom sanction for the erection or re-erection of any building in any area in a cantonment has been given or deemed to have been given under section 181 by the Board or the Executive Officer, as the case may be, shall, within thirty days after completion of the erection or re-erection of the building give a notice of completion in writing to the Board or the Executive Officer, as the case may be, and the Board or the Executive Officer shall on receipt of such notice cause the building to be inspected in order to ensure that the building has been completed in accordance with the sanction given by the Board of the Executive Officer, as the case may be.]"

58. Section 184 provides for penal consequences of illegal erection or re-erection:

"Section 184 - Illegal erection and re-erection Whoever begins, continues or completes the erection or re-erection of a building--

(a) without having 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 sub-section (1) of section 181, or

(c) when sanction has been refused, or has ceased to be available1[or has been suspended by the Officer Commanding-in-Chief, the Command, under clause (b) of sub-section (1) of section 52], shall be punishable with fine which may extend to2[five thousand rupees]."

59. Section 185 provides for the power to stop the erection or re-erection or to demolish unauthorized constructions, and also makes illegal erection or re-erection an offence:

"Section 185 - Power to stop erection or re-erection or to demolish 1[(1)]2[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 the2[Board] considers that such erection or re-erection is an offence under section 184, and may in any such case3[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, within4[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 the2[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:

5[Provided further that the Board shall not, without the previous concurrence of the Officer Commanding-in-Chief, the Command, 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 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 order under section 181 sanctioning the erection or re-erection has been suspended by the Officer Commanding-in-chief, the Command, under clause (b) of sub-section (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 Officer Commanding-in-chief, the Command, thereafter directs that the order of 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 Officer Commanding-in-Chief, the Command, has been communicated to him.]"

60. Section 186 of the Cantonments Act, 1924 contains the power to make rules in regard to raising constructions and matters allied thereto:

186. Power to make bye laws- "1[Board] may make bye-laws prescribing-

(a) the manner in which notice of the intention to erect or re-erect a building in the cantonment shall be given to the2[Board or the Executive Officer, as the case may be,] and the information and plans to be furnished with the notice;

3[(aa) the manner in which and the form in which a notice of completion of erection or re-erection of any building in the cantonment shall be given to the Board or the Executive Officer, as the case may be, and the information and plans to be furnished with the notice;]

(b) the type or description of buildings which may or may not, and the purpose for which a building may or may not, be erected or re-erected in the cantonment or any part thereof];

(d) the fees payable on provision by the1[Board] of plans or specifications of the type of buildings which may be erected in the cantonment or any part thereof;

5[(e) the circumstances in which a mosque, temple or church or other sacred building may be erected or re-erected; and

(f) with reference to the erection or re-erection of buildings, or of any class of building, all or any of the following matters, namely :--

(i) the line of frontage where the building abuts on a street;

(ii) the space to be left about the building to secure free circulation of air and facilities for scavenging and for the prevention of fire;

(iii) the materials and method of construction to be used for external and party-walls, roofs and floors;

(iv) the position, the material and the method of construction of6[staircases, fire places], chimneys, drains, latrines, privies, urinals and cesspools;

(v) height and slope of the roof above the uppermost floor upon which human beings are to live or cooking operations are to be carried on;

(vi) the level and width of the foundation, the level of the lowest floor7[, the stability of the structure and the protection of building from dampness arising from sub-soil];

(vii) the number and height of the storeys of which the building may consist;

(viii) the means to be provided for egress from the building in case of fire;

(ix) the safeguarding of wells from pollution; or

(x) the materials and method of construction to be used for god owns intended for the storage of food grains in excess of8[eighteen quintals] in order to render them rat proof.]"

61. The powers of the Board in case of non compliance with the notices, are stated in Section 256 of the Cantonments Act, 1924 (as amended from time to time):

256. In the event of non-compliance with the terms of any notice, order or requisition issued to any person under this Act, or any rule or bye-law made thereunder, requiring such person to execute any work or to any act, it shall be lawful for the [Board] [or the civil area committee or the Executive Officer at whose instance the notice, order or requisition has been issued], whether or not the person in default is liable to punishment for such default or has been prosecuted or sentenced to any punishment therefore, after giving notice in writing to such person, to take such action or such steps as may be necessary for the completion of the act or work required to be done or executed by him, and all the expenses incurred on such account shall be [recoverable by the Executive Officer on demand, and if not paid within ten days after such demand, shall be recoverable in the same manner as moneys recoverable by the Board under section 259:

Provided that where action or step relates to the demolition of any erection or re-erection under section 185 or the removal of any projection or encroachment under section 187, the Board or the civil area committee or the Executive Officer may request any police officer to render such assistance as considered necessary for the lawful exercise of any power in this regard and it shall be the duty of such police officer to render forthwith such assistance on such requisition.

62. Chapter XV provides for a comprehensive system of appeals, penalties and procedures. Appeals from executive orders are provided under Section 274 of the Cantonments Act, 1924 (as amended from time to time). The provisions has a bearing on, and the dispute is reproduced here under:-

"274. Appeals from executive orders. -

(1) Any person aggrieved by any order described in the [third column] of Schedule V may appeal to the authority specified in that behalf in the [fourth column] thereof.

(2) No such appeal shall be admitted if it is made after the expiry of the period specified in that behalf in the [fifth column] of the said Schedule.

(3) The period specified as aforesaid shall be computed in accordance with the provisions of the [Limitation Act, 1963 (36 of 1963)], with respect to the computation of periods of limitation thereunder"

63. The relevant columns of Schedule V states thus:-

S.No. Section Executive Order Appellate Authority Time allowed for appeal 9 181

(a) Refusal to sanction the erection or re-erection of a building in a civil area.

(b) Refusal to sanction the erection or re-erection of a building in a cantonment (other than a civil area).

Board Officer Commanding -in-Chief, the Command, or other authority authorised in this behalf by the Central Government.

Thirty days from service of communication.

10 185

(a) Notice to stop erection or re-erection of, or to alter or demolish, a building in a civil area.

(b) Notice to stop erection or re-erection of, or to alter or demolish, a building in a cantonment (other than a civil area) Board Officer Commanding -in-Chief, the Command, or other authority authorised in this behalf by the Central Government.

Thirty days from service of communication.

64. The procedure for appeal is provided under Section 275 of Cantonments Act, 1924 (as amended from time to time).

275. Petition of appeal.-(1) Every appeal under section 274 shall be made by petition in writing accompanied by a copy of the order appealed against.

(2) Any such petition may be presented to the authority which made the order against which the appeal is made, and that authority shall be bound be bound to forward it to the appellate authority, and may attach thereto any report which it may desire to make by way of explanation.

65. Section 276 vests the appellate authority, with the power of suspending of any action, while an appeal is pending before it. Section 276 states thus:-

"[276. Suspension of action pending appeal. -On the admission of an appeal from an order, other than an order contained in a notice issued under section 140, section 176, section 181, section 206 or section 23 8, where the appellate authority so directs, all proceedings to enforce the order and all prosecutions for any contravention thereof shall be held in abeyance pending the decision of the appeal, and, if the order is set aside on appeal, disobedience thereto shall not be deemed to be an offence.]"

66. Section 279 discloses the legislative intent to ensure that the provisions of appeal provides for a fair opportunity of hearing. Section 279 is reproduced below:-

"279. Right of appellant to be heard. -No appeal shall be decided under this Chapter unless the appellant has been heard, or has had a reasonable opportunity of being heard in person or through a legal practitioner."

67. Section 278 accords finality to appellate orders. Section 278 reads as under:-

"278. Finality of appellate orders. -Save as otherwise provided in section 277, every order of an appellate authority shall be final."

68. The scheme of the Cantonments Act, 1924 relating to erection and re-erection of constructions, reveals that the provisions in regard to grant of sanction for construction contain the word "shall". Illegal erection and re-erection are offences under the Cantonments Act, 1924 (as amended from time to time). Specific provisions provide for the penal consequences of illegal constructions. The presence of word "shall", the provisions creating the offences for illegal constructions, and imposition of penalty for violating the provisions for sanction of constructions, disclose the imperative intent of the legislature. The provisions are clearly mandatory in character, according to settled canons of statutory interpretation. Reference to some good authorities can be profitably made to fortify this conclusion. (Haryana Vs. Raghubir Dayal, (1995) 1 SCC 133, N.K. Chauhan Vs. State of Gujarat and others, (1977) 1 SCC 308, P.T. Rajan Vs. T.P.M. Sahir and others, (2003) 8 SCC 498, Sharif-Ud-Din Vs. Abdul Gani Lone, (1980) 1 SCC 403, Vikas Trivedi Vs. State of U.P. and others, (2013) 2 UPLBEC 1193, Karnal Improvement Trust, Karnal Vs. Smt. Parkash Wanti (Dead) and another, (1995) 5 SCC 159, State of Haryana Vs. P.C. Wadhwa, IPS, Inspector General of Police and another, (1987) 2 SCC 602, Regional Provident Fund Commissioner Vs. K.T. Rolling Mills Pvt. Ltd. (1995) 1 SCC 181.)

69. The right of erecting fresh constructions or re-erecting or repairing old constructions in cantonments, is a right exclusively conferred, strictly controlled, and meticulously regulated by the Cantonments Act, 1924 (as amended from time to time). The right of constructions of fresh building or repairing of old buildings in cantonment areas is thus a statutory right.

70. The reasons for creation of statutory rights of erecting or re-erecting buildings, and also the strict regulation of such rights under the Cantonments Act, 1924 (as amended from time to time) are not far to seek. Unauthorised and illegal constructions are a bane of cantonment administrations. Unauthorized constructions can pose direct and imminent danger to national security. Treating these rights of erecting constructions as exclusively statutory rights, is in accord with the legislative intent and scheme of the Cantonments Act, 1924.

71. However, the second facet of the legislative intent now requires attention. The civilian population under the Cantonments Act, 1924 (as amended from time to time), is not denuded of its rights of raising constructions. But the rights are clearly defined and well regulated. It is this scheme of the Act, both vesting and regulating the right to make constructions, which has to be implemented to achieve the intent of the legislature.

72. The Cantonments Act, 1924 (as amended from time to time) creates a statutory authority, to decide matters relating to grant of constructions or raising unauthorised constructions. The adjudications have to be preceded by a show cause notice. An opportunity to the noticee to tender his defence, has to be granted before a final order is passed. The legislature has ensured full procedural safeguards, which are in conformity with principles of natural justice.

73. The appeal against such orders, will lie to an authority superior to the adjudicating authority. Orders passed in appeal are final in nature. Adjudication in appeals is according to a prescribed procedure, which is consistent with principles of natural justice, good conscience, equity and fair play.

74. Providing for fair adjudicatory system, and creation of an independent appellate system in statutes has been a legislative innovation. The purpose of a complete code for grievance redressal, and adjudication of statutory rights, is to dispense impartial and fair justice in an expeditious time frame. Such adjudicatory authorities and appellate tribunals, are not constrained by cumbersome procedures, leading to long drawn trials. The legislature was clearly cognizant of interminable delays, caused by such cumbersome procedures. The legislation seeks to curb the mischief.

75. The alternative grievance redressal and adjudication system created by the legislature, can be given effect to by reposing faith in it. Many unscrupulous litigants resort to civil courts, to defeat or preempt an early adjudication by the statutory authorities. In such cases, law can be upheld by relegating parties to the statutory remedies. The lawful statutory adjudication has to run its course, and cannot be prematurely interdicted.

76. To sum up, the right of erecting or re-erecting the constructions in a cantonment area, is conferred solely by statute and is strictly regulated by it. A fair adjudicatory mechanism has been provided to deal with disputes, arising out of such matters. An independent appellate system has been created, in which faith can be reposed for dispensing fair and expeditious justice. Finality has been accorded to orders of the appellate authority. The legislature went the whole length to expedite the decision making, without diluting the demands of fair justice. The Cantonments Act, 1924 (as amended from time to time), and the provisions in regard to erecting or re-erecting constructions in the cantonment areas constitute a complete code.

77. In light of this discussion, this Court concludes that the jurisdiction of the civil court stood impliedly ousted by the provisions of the Cantonments Act, 1924 (as amended from time to time). The courts below acted in excess of jurisdiction, by entering their respective judgments and decrees.

78. At this stage, reference may also be made to Section 273 of the Cantonments Act, 1924, the provision is extracted hereinunder:

"Section 273 - Notice to be given of suits (1) No suit shall be instituted against any1[Board] or against any member of a Board, or against any officer or servant of a1[Board], in respect of any act done, or purporting to have been done, in pursuance of this Act or of any rule or bye-law made thereunder, until the expiration of two months after notice in writing has been left at the office of the1[Board], and, in the case of such member, officer or servant, unless notice in writing has also been delivered to him or left at his office or place of abode, and unless such notice states explicitly the case of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and unless the plaint contains a statement that such notice has been so delivered or left.

(2) If the1[Board], member, officer or servant has, before the suit is instituted, tendered sufficient amounts to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, and shall also pay all costs incurred by the defendant after such tender.

(3) No suit, such as is described in sub-section (1), shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.

(4) 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."

79. Section 274 carves out an exception to the matters covered by Section 273. An alternative justice delivery system has been created by the statute, only in regard to matters falling within the ambit of Section 274. Matters falling within the ambit of Section 274, are clearly excepted from the ambit of Section 273. The case at hand falls within the ambit of Schedule 5 under Section 274, being a matter relating to erection/reerection of buildings. It is beyond the scope of Section 273 of the Cantonments Act, 1924. Reliance by the courts below upon Section 273 of the Cantonments Act, 1924, was misconceived and vitiates both the impugned judgments.

80. Learned counsel for the appellant rightly distinguished the judgment rendered by this Court in The Cantonment Board, Meerut Vs Chandra Prakash Jain and others, 1979 ALJ 1000. In the case of Chandra Prakash Jain (supra), a challenged was laid to the notice under Section 185 before the trial court. The notice under Section 185 was directly in issue. The courts below found that the notice was void. The suit was held to be maintainable on the ground of challenge to the aforesaid notice. In the instant case no challenge to the notice has been laid. Further the judgment of this Court in Chandra Prakash Jain (supra), with due respect does not consider the complete scheme of the Act and authorities in point, while deciding the issue of jurisdiction.

81. The first substantial question of law is answered as follows:

"Courts below did not have the jurisdiction to try Original Suit No. 1300 of 1984, Sri Chiman Lal (since deceased) Through L.Rs. Vs. Cantonment Board, Agra Cantt. and others) and Civil Appeal No. 159 of 1999 (Cantonment Board, Agra Cantt. Vs. Smt. Pushpa Rani Gupta and others) respectively. The judgments and decrees dated 29.04.1999 and 28.03.2003 rendered by the respective courts below are nullities being beyond jurisdiction."

82. The show cause notices issued under the provisions of the Cantonments Act, 1924 (as amended from time to time) contain full material particulars of the violations, allegedly made by the plaintiffs-respondents, while erecting unauthorized constructions. The said notices are issued in exercise of powers under Section 179 read with Section 184 and Section 185, of the Cantonments Act, 1924 (as amended from time to time). No defect in the proceedings so taken out under the Cantonments Act, 1924 (as amended from time to time), could be pointed out by the plaintiffs-respondents, which went to the root of the aforesaid proceedings. There is no jurisdictional error in the action taken by the cantonment authorities, which gave rise to the cause of action of the suit. No infirmity in the notices issued under the provisions of the Cantonments Act, 1924 (as amended from time to time) and the consequent proceedings taken out under the Cantonments Act, 1924 (as amended from time to time) could be established. The notices issued under the provisions of the Cantonments Act, 1924 (as amended from time to time) are upheld as valid, lawful and within the jurisdiction of the noticing authority.

83. The plaintiffs-respondents did not contest the proceedings on merit, by showing cause to the competent authority. The suit was brought even while the adjudication proceeding before the competent authority, was pending. No final order of demolition, or any final decision on the unauthorized constructions, was rendered by the competent authority in the said proceedings.

84. The institution of the suit was clearly to preempt, and prevent adjudication by the competent authority in law. The suit was prematurely filed.

85. By injuncting defendant no. 1-appellant from demolishing the constructions in dispute, the learned courts below have illegally imposed a prior restraint upon the authorities. The impugned judgments and decrees prematurely, and without legal basis interdicted lawful statutory proceedings, and prevented adjudication of the issue of illegal constructions by the competent statutory authority. The impugned judgments and decrees of the learned courts below, unlawfully issued an injunction against lawful proceedings, taken out by the competent authority having jurisdiction, under the Cantonments Act, 1924 (as amended from to time). The suit was clearly premature, and was liable to be dismissed on this ground alone.

86. Before parting, a few words on a residual issue would complete the picture and help in concluding the controversy. Deemed sanction of the construction plan was defence of the plaintiff.

87. The findings of the courts below on the issue of deemed sanction are vitiated and unsustainable. The fact of the rejection of the construction plan of the plaintiff by the cantonment authority, was construed by learned courts below in a perverse and unlawful manner. I will not say any further. This matter is liable to be determined independently by the competent statutory authority. Any finding at this stage, would unfairly influence the statutory authority or worse prematurely interdict the statutory proceedings.

88. The second substantial question of law is answered as follows:

"The suit instituted by the plaintiffs-respondents was premature and was liable to be dismissed as such, and the learned courts below erred in law by respectively rendering the impugned judgments and decrees injuncting the defendant no. 1-appellant from demolishing the disputed construction."

89. The judgment and decree dated 29.04.1999 passed by IInd Additional Civil Judge (Senior Division), Agra in Original Suit No. 1300 of 1984 (Sri Chiman Lal (since deceased) Through L.Rs. Vs. Cantonment Board, Agra Cantt. and others) and the judgment and decree dated 28.03.2003 passed by the Additional District and Sessions Judge, Court No. 17, Agra in Civil Appeal No. 159 of 1999 (Cantonment Board, Agra Cantt. Vs. Smt. Pushpa Rani Gupta and others), are quashed.

90. The notices and the proceedings taken out by the cantonment authorities, regarding illegal constructions have been upheld as lawful. The proceedings have to run their course. Long years have passed since the proceedings were stalled, by interdicts of the courts. In view of the holding of this Court, following directions are issued to the appellant/competent authority:

I. The appellant/competent authority shall proceed with the adjudication of the controversy, in pursuance of the said notices issued to the plaintiffs-respondents under various provisions of the Cantonments Act, 1924 (as amended from time to time).

II. Fresh copies of the said notices shall be issued to the plaintiffs-respondents, within a period of four months from the date of receipt of a certified copy of this order.

III. The plaintiffs-respondents shall be granted six weeks time to tender their reply to the said notices.

IV. The competent appellant/cantonment authority shall thereafter decide the controversy on its merits by a reasoned and speaking order, to be passed within a period of three months, from the date of receipt of the reply of the plaintiffs-defendants.

V. In case the plaintiffs-respondents do not respond to the aforesaid notices or fail to tender their reply to the same, the appellant/competent authority, shall be at full liberty to proceed against them in accordance with law.

91. The appeal is allowed.

Order Date :- 26.05.2020 Pravin

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