Cantonment Board, Ambala Cantt. vs S.S. Dass and another

This Regular Second Appeal is directed against the judgment and decree of the first Appellate Court partly reversing on appeal those of the trial Judge and decreeing the suit of the plaintiff-respondents for declaration that the notice, Exhibit P2, issued by the defendant-appellant was invalid regarding construction of the items mentioned at serial numbers 1, 2, 3 and 6 of the notice.

This judgment also disposes of the Cross-Objection No. 1C of 1980.

The facts:

The respondent-plaintiff (hereinafter the plaintiffs) owned Bungalow No. 102, situated on the Mall Road, Ambala Cantt. that the Cantonment Board, Ambala Cantt. (hereinafter, the defendant) issued notice dated August 19, 1967, Exhibit P2, directing the plaintiffs to demolish the unauthorised constructions; that another notice dated June 21, 1967 Exhibit PI, was issued to the plaintiffs for demolishing two bath rooms, and two latrines in the Bungalow; that the validity of these notices were challenged in the civil suit.

The case of the defendant-appellant has been that the Civil Court had no jurisdiction, that the suit was time barred and it was bad for not impleading Union of India which was a necessary party.

The suit was dismissed by the trial Court, but on appeal, the first Appellate court found that the notice, Exhibit P2, was invalid only regarding constructions of the items mentioned at Sr. Nos. 1, 2, 3 and 6 in the notice.

From the pleadings of the parties, the following issues were framed :--

Whether the suit is barred by time? OPD

Whether the civil Court has no jurisdiction to try the present suit?

Whether Union of India is a necessary party to the present suit and the suit is bad for non-joinder thereof? OPD

Whether the notices in question are illegal, void, without jurisdiction and mala fide? OPD

Relief.

Issue No. 1 was decided against the defendant and it was held that the suit was not barred by time; issues Nos. 2 and 4 were taken up together and it was held that the civil Court''s jurisdiction was barred yet the Civil Court could examine the decision of the Cantonment Board whether it had violated the principles of natural justice. Notices issued by the defendant were held to be not beyond jurisdiction; issue No. 3 was decided against the defendant and it was held that Union of India was not a necessary party and on ultimate analysis, the suit was dismissed.

The plaintiffs aggrieved against the judgment and decree of the trial Court assailed the same in first appeal. The First Apellate Court found that the Civil Court had jurisdiction to try the suit. It also found that notice Exhibit P2, was invalid so far as it relates to the constructions of the items mentioned at serial numbers 1, 2, 3 and 6, since these constructions were validlymade and were shown in the site plan, Exhibit D1, which was submitted by the plaintiffs and sanctioned by the defendant.

The plaintiffs aggrieved against the judgment and decree of the trial Judge to the extent to which the relief claimed by them was declined have assailed the same through Cross-Objections No. 1C of 1980.

Learned counsel for the defendant has challenged the judgment of the first appellate Court only on the ground that Civil Court had no jurisdiction to entertain the suit. The Cantonment Act, 1924 (for short, ''the Act'') was enacted to consolidate and amend the law relating to the administration of Cantonment. There is no provision in the statute expressly saying that the orders purporting to have been passed under the Act or action taken under the Act were not assailable in the Civil Court. Section 272 of the Act only says that no suit or prosecution shall be entertained in any Court against any Board or against any Officer Commanding a station or against any member of a Board, or against any officer or servant of a Board, for anything done in good faith or intended to be done, under this Act or any rule or bye-law made thereunder. Provisions of Section 272 of the Act are enacted to grant immunity to the Board and its functionaries mentioned in it regarding any action taken by it under the Act and the Rules in a bona fide manner. In other words, if it is proved that the action is mala fide, the Section does not prohibit action against the Board or its functionaries. This was precisely the ratio of the judgment rendered in The Jullundur Cantonment Board Vs. Firm Hindu Khandan Mushtarka Munshi Ram Sri Ram and Others, ). Learned counsel for the defendant, however, relies upon Wing Commander Sanwal Shah v. Cantonment Board, Ambala Canlt. (1976) 78 P&H LR 127. According to him, a contrary view was taken by a single Judge of this Court. In Wing Commander Sanwal Shah''s case (supra), the facts briefly were that notice dated May 1,1971 was served upon appellant No, 1 in second appeal informing him thai the unauthorised constructions raised in the house would be demolished on May 11, 1971. The validity of this notice was challenged in a civil suit and permanent injunction was claimed against the respondent in the suit restraining it from demolishing the constructions. The Cantonment Board maintained that notice was valid and that the constructions had been raised without obtaining sanction from it. The pleadings of the parties gave rise to the following issues in that suit.

Whether the notice in dispute is void. illegal and ultra vires? OPP

Whether the suit is bad for non-joinder of parties? OPD

Whether the notice u/s 185 of the Cantonment Act, 1924 was served on the plaintiffs on May 29, 1969? OPD

Whether the suit is within time? OPP

Whether this Court has no jurisdiction to entertain the present suit? OPD

Relief?

In that suit, the trial Judge answered issue No. 4 in favour of the plaintiffs and issue Nos. 2 and 5 against the defendant. Under issue No. 3, it was held that notice u/s 185 of the Act was served upon the appellant and on ultimate analysis, the suit was dismissed. The plaintiffs aggrieved against the judgment and decree of the trial Judge unsuccessfully assailed the same in first appeal. Aggrieved against the decision of the first Appellate Court, they came in second appeal to this Court. In second appeal, the decision revolved around the question whether the notice u/s 185 of the Act was valid and this Court upheld the validity of the notice. The trial Judge had held that the civil Court had jurisdiction. This finding was upheld by the first Appellate Court and the finding on this issue was never assailed in the second appeal by the Cantonment Board. This judgment is not an authority for the proposition whether the jurisdiction of the Civil Court is barred u/s 272 of the Act. The judgment is obviously distinguishable. Since the question of jurisdiction was never raised, it is not an authority for the proposition canvassed. The decision taken in The Jullundur Cantonment Board Vs. Firm Hindu Khandan Mushtarka Munshi Ram Sri Ram and Others, support the plaintiff''s contention that the Civil Court had the jurisdiction. The objection raised by the defendant that the Civil Court has no jurisdiction is untenable and is, thus, rejected.

The plaintiffs have challenged the correctness of the notice on the ground that the constructions were old constructions and were not unauthorised. Assuming what the Board says is correct, it is not disputed that the constructions are in existence for the last more titan 25 years. If any construction has been made without prior permission, the matter can be compounded. Accordingly, I direct the Board to compound the matter with the plaintiffs for the alleged unauthorised constructions mentioned in notices, Exhibits P-1 and P-2. The plaintiffs will deposit the composition fee, so determined by the Board, according to rules. The cross-objections are accordingly disposed of.

For the reasons aforesaid, the appeal filed by the defendant is dismissed. The cross-objections filed by the plaintiffs are disposed of in the light of the observations made above.

Appeal dismissed.