Wing Commander Sanwal Shah and another vs Cantonment Board, Ambala Cantt

Muni Lal Verma, J.—This suit which culminated in this second appeal was instituted by the appellents, who are husband and wife, for perpetual injunction retraining the Respondent from demolishing certain constructions raised in bungalow No. and 1 -A (hereinafter called the house), situate within the limits of Ambala Cantt.

Their case was that the Respondent served notice dated May 1, 1971, on Appellant No. 1. informing him that the unuthorised constunctions railed in the house would be demolished on May 11, 1971, Challenging the said notice as illegal, the Appellants claimed injunction, referred to above, with the averment that the constructions complained of were not unauthorized he Respondent contented the suit raising various pleas, including that the constructions had been raised without its (Respondent''s sanction and notice in that respect u/s 185 of the Cantonments Act, 1924 (hereinafter called the Act) had been duly served on Appellant No. 1 on September 25, 1969. Since he did not comply with the said notice, notice u/s 256 of the Act to demolish and remove the aforesaid constructions had been issued to him (Appellant No. 1). The suit was, therefore, tried on the following issues:

Whether the notice in dispute is void, illegal and ultravires? 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.

The trial Court decided issue No. 4 in the affirmative and decided issue Nos. 2 and 5 against the Respondent It held under issue No. 3 that notice u/s 185 of the Act had been served on Appellant No. 1 and the said service was sufficient, and finding issue No. 1 against the Appellants it dismissed the suit with costs. Dissatisfied with the said result, the appellents carried appeal which was also dismissed with costs by the Additional District Judge, Ambala. Hence, they came to this Court in second appeal.

The submissions made by Shri D. N. Awasthy, Learned Counsel for the Appellants, have four dimensions:

(1) that notice u/s 185 of the Act was invalid because it was served on Sanwal Shah Appellant alone and had not been served on his wife-Smt. Charan Shah, Appellant No. 2;

(2) that it was not shown that the constructions raised in the house constituted ''erection'' or ''re-erection'' within the meaning of Section 179 of the Act ;

(3) that no inference of admission of Appellant No. 1 that he had raised the constructions in the house could be raised from the letters written by him to the Respondent; and

(4) that the old grant in favour of the original owner and the last sanctioned plan had not been produced by the Respondent, although it had been called upon to produce the same.

Shri Puran Chand, Learned Counsel for the Respondent, countered the said submissions and contended that notice u/s 185 or the Act had not been impeached by the Appellants in the plaint and, as such, attack against its validity etc. was beyond the pleadings and since the said notice was not challenged in the appeal provided under the Act it was not open to attack in civil action. For the reosons to be presently recorded, I am of the view that the submissions made by the Learned Counsel for the Appellants are not well-founded and there is merit in the contentions of the Learned Counsel for the Respondent. My giving notice u/s 179 of the Act on May, 15, 1969, Wing Commandar Sanwal Shah (Appellant No. 1) sought sanction from the Respondent to renovate the house with a view to provide residence for six inhabitants. Notice u/s 185 of the Act (copy of which is Exhibit D. 11) was issued by the Respondent to Appellant No. 1 on July 30, 1969, i.e , about 21/2 months after the notice given by Appellant No. 1 u/s 179 of the Act. It is mentioned in Exhibit D. II (i.e. notice u/s 185 of the Act) that Appellant No. 1 had erected or re-erected an annexe of two sets consisting of 4 rooms, 2 bed-rooms, 2 bath rooms and 2 kitchens and a 3rd set comprising 3 rooms, a kitchen and a bath-cum latrine without obtaining proper sanction. He (Appellant No. 1) admitted the receipt of the said notice issued u/s 185 of the Act in letter (Exhibit D. 8) addressed by him on October 17, 1969, to the Respondent. He did not deny therein (Exhibit D. 8) the erection or re-erection of the aforesaid 3 sets, referred to in the said notice (Exhibit D. 11), and simply requested for a personal hearing. It is, thus, evident, when Exhibits D. 2, D. 8 and D. 11 are read together, that Appellant No. 1 has raised constructions complained of some time between May 15, 1969 and July 33, 1969. Appellant No. 1 had admitted during cross-examination that he had written that letter (Exhibit D 8) to the Respondent. The said letter (Exhibit D. 8) contain express admission on his behalf that he had received notice u/s 185 of the Act and he did not raise any objection therein against the contents of that notice (Exhibit D. 11). It is incontrovertible that admission is a good piece of evidence against its maker. Appellant No. 1 did not show that the admission made by him in letter (Exhibit D. 8) was erroneous and it had never been his case that it (the said admission) was the result of any misrepresentation fraud or coercion. So, the aforesaid admission of Appellant No. 1 with regard to the receipt of notice issued u/s 185 of the Act (copy of which is Exhibit D. 11) stares at his face and he cannot get rid of it. Faced with that difficult situation, Shri Awasthy took the stand that service of the said notice was invalid because it had been served on Appellant No. 1 alone and was never served on Appellant No. 2. According to him both the Appellants were co-owners of the house and service of notice u/s 185 of the Act on one of them could not be considered valid. He relied on Bejoy Chand Mahatab Vs. Kali Prasanna Seal and Others, Town Area Mandha Vs. Mt. Manglo , Valiyaveettil Konnappan v. Mangot Velia Kunnivil Manikkam AIR 1968 Ker 229, and Ajit Kumar Roy and Others Vs. Sm. Satya Bala Dutt and Others, in support of his aforesaid contention. The facts of the said cases were, however, different. In Mt. Manglo''s case, she was the exclusive owner of the shop but the Town Area Committee had taken action against her husband and had also served notice to demolish the building on him. Therefore, she instituted a suit to obtain a declaration that the shop was her property and the same was not liable to be demolished. It was under these circumstances that it was held that notices or orders passed against her husband were not binding on her because she had never been a party to the proceedings before the Town Area Committee and the notices or orders served upon her husband could not bind her simply because she was his wife. The ratio of the judgments recorded in Bejoy Chand Mehatab''s case, Valivaveettil Konnappan''s case and Ajit Kumar Roy''s case is that in the case of tenants in common, there is always unity of possession and not unity of title and, therefore, in order to determine such a tenancy notices u/s 106, Transfer of Property Act, have to be issued to all the tenants and there can be no effective determination of the lease in the absence of notice to quit to any one of them since a lease cannot be determined piecemeal. But the case of co-owners is different from that of tenants in common. Whereas the tenants in common have unity of possession only, the co-owners have unity of title in addition to the unity of possession. Therefore, the principle governing the service of notice u/s 106, Transfer of Property Act, on all the tenants in common is not applicable to the case of co-onwers. According to Section 185 of the Act a Cantonment Board may, at any time, by notice in writing, direct the owner, lessee or occupier to stop the erection or re-erection of a building or direct demolition of any building or part thereof which has been erected or re-erected without obtaining necessary sanction from it. When the opening words of Sub-section (1) of Section 179 of the Act "whoever intends to erect or re-erect" are read with the language of Section 185 of the Act, it is reasonable and legitimate to infer that notice u/s 185 of the Act is to be, and can be, served on a person who has erected or re-erected the building without obtaining necessary sanction from the Cantonment Board irrespective of the fact whether he is owner, co owner, lessee or occupier. "Owner" as defined in Clause (xxvi) of Section 2 of the Act includes any person who is receiving or is entitled to receive the rent of any building or land whether on his own account or on behalf of himself and others or who would so receive the rent or be entitled to receive it if the building or land were let to a tenant. Admittedly, Appellant No. 1 being a co-owner was entitled to receive the rent of the house if it were let to a tenant. Therefore, for purposes of Section 185 of the Act, he could be considered as owner irrespective of the fact that Appellant No. 2 is also co-owner with him of the house. Further, as indicated above, he (Appellant No. 1) had alone sought sanction for renovation of the house for providing residence to six inhabitants and it was he who had given the reply (Exhibit D. 8) to the notice issued to him u/s 185 of the Act and he did not deny therein (Exhibit D. 8) that he had erected the rooms etc. mentioned in the said notice (Exhibit D. 11). In these circumstances, non-service of notice on Appellant No 2 cannot, in any way, render the service of notice u/s 185 of the Act on Appellant No 1 invalid. According to Sub-section (2) of Section 179 of the Act, a person shall be deemed to erect or re-erect building if he, (a) makes any material alteration therein, or (c) converts into more than one place for human habitation, or (g) makes any alteration which increases or diminishes the height of, or area covered by the building. "Building" as defined in Clause (iv) of Section 2 of the Act means a house, outhouse, latrine or other roofed structure and includes a wall other than a boundary wall. In notice Exhibit D 2 given by Appellant No. 1 to the Respondent u/s 179 of the Act while applying for sanction he had mentioned that he would be renovating the building with a view to use it as residence and to provide accommodation to six inhabitants. The details of the construction which had been raised by Appellant No. 1 without obtaining sanction of the Respondent, as given in Exhibit D. 11, leave no room for doubt that the said constructions were admittedly within the scope of erection or re-erection contemplated by Sub-section (2) of Section 179 of the Act.

It is noteworthy that in letter (Exhibit D. 5) addressed by Appellant No. 1 on February 20, 1970 to the Respondent, he (Appellant No. 1) admitted that he had carried out repairs etc. to the outhouse adjoining the house without prior permission of the Respondent with the intention of improving the condition of the area for the benefit of the tenants and when he came to know of the violation of the rules he had submitted plans after commencement of the renovations, though prior to the completion of the same Once again in appeal (Exhibit D.4) addressed by him on April 26, 1971, to the President of the Respondent, he admitted that he had carried out repairs constituting apparently unauthorised constructions in or about the month of January, 1969. So, the admissions made by Appellant No. 1 in the said letter (Exhibit D. 5) and appeal (Exhibit D.4) go a long way to point out that he had raised the unauthorized constructions in the house without prior sanction of the Respondent in or about the month of January, 1969, i.e. within 12 months prior to the issuance of the notice u/s 185 (Exhibit D. 11) by the Respondent to him, and that he was also conscious of the fact that in doing so he had violated the relevant rules. In presence of the said admissions and in view of the position of law and circumstances of the case, discussed above, I unhesitatingly find that Appellant No. 1 raised the constructions which constituted ''erection'' within the contemplation of Section 179 of the Act without the necessary sanction from the Respondent and, as such, it (the Respondent) was within its right and justified in issuing notice u/s 185 of the Act, requiring him to demolish the unauthorized constructions raised by him. In view of the aforesaid discussion and the conclusions arrived at, I do not think that the production of the old grant made by the Respondent in favour of the original owner or the last sanctioned plan could have rendered any help to the Appellants or could have changed the position. Therefore, I find no merit in the submissions made by the Learned Counsel for the Appellants and the same are overruled.

Nowhere in plaint the Appellants had challenged the validity of the notice (Exhibit D. 11) issued by the Respondent u/s 185 of the Act to Appellant No. 1. Therefore, attack against its validity is admittedly beyond the scope of pleadings.

Section 274 of the Act provides that any person aggrieved by any order prescribed in the second column of Schedule v. may appeal to the authority specified in that behalf in the third column thereof and no such appeal would be admitted if it is made after the expiry of the period specified in that behalf in the 4th column of the said Schedule. Schedule v. provides an appeal against the notice issued by the Respondent u/s 185 for demolishing a building to the Officer Commanding-in-chief and the limitation prescribed by the 4th column of the said schedule is 30 days from the service of notice. According to Section 278, every order passed by an appellate authority shall be final. It, therefore, appears, that the Act is a self-contained code, since it provides appeals against certain orders. Therefore, it is doubtful that the challenge against the validity of the notice issued by the Respondent u/s 185 of the Act to Appellant No. 1 could be raised in Civil Court. I am supported in this view by AIR 1955 81 (Nagpur)

The appeal, as appears from Exhibit D. 4 was addressed by Appellant No. 1 against the notice of Section 185 of the Act to the President of the Respondent on April 26, 19/1. Admittedly, notice u/s 185 of the Act had been served upon him on September 25, 1969. So, the said appeal was preferred by Appellant No. 1 beyond the prescribed period of thirty days from September 25, 1969. It was not shown that the President of the Respondent, to whom the aforesaid appeal was addressed, was the authorised authority to hear same. It is, thus, clear that Appellant No. 1 had failed to file the appeal against the notice issued u/s 185 of the Act in accordance with the provisions contained in Section 274 read with Schedule v. of the Act. Therefore, notice issued to Appellant No. 1 u/s 185 of the Act had become final. So, there appears force in the contentions raised by the Learned Counsel for the Respondent and the same should prevail.

It, thus, follows from the discussion above that the findings of the Courts below on issue No. 1 and 3 are impeccable and they were right in non suiting the Appellants. The conclusions arrived at by the Courts below are neither contrary to law nor suffer from any infirmity. From whatever angle the case of the Appellants may be viewed, they can have no luck and this appeal is bereft of any merit.

Consequently, I maintaining the judgment and decree of the lower Appellate Court dismiss this appeal with costs.