The Cantonment Board by Its Executive Officer, Camp Belgaum Vs. Smt. Jeenath Begum Habibur Rahman Sheikh - Court Judgment

Excerpt:
- karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 126: [h.v.g. ramesh, j] applicability of the provisions of section 126 of the karnataka land reforms act, 1961 to the tenants holding lands in inam and other alienated villages or lands including the tenants referred to in section 8 of karnataka village offices abolition act, 1961 - held, irrespective of the fact that the land is a inamthi land and once it is said to be a tenanted land, the land tribunal has got jurisdiction to consider the same in accordance with law and there cannot be any exception by virtue of the special act like the village offices abolition act, 1961. though the land tribunal originally rejected the application of the husband of the petitioner for grant of occupancy rights, it was for want of clarification. but, in view of the clarification inserted by the amendment act of 1979, irrespective of the fact that the land is a inam land or in the regular course is a tenanted land over which there is tenancy claimed, the land tribunal has got jurisdiction to deal with the same. -- karnataka village offices abolition act, 1961.[k.a. no. 14/1961]. section 8: applicability of the provisions of section 126 of the karnataka land reforms act, 1961 to the tenants holding lands in inam and other alienated villages or lands including the tenants referred to in section 8 of karnataka village offices abolition act, 1961 - held, irrespective of the fact that the land is a inamthi land and once it is said to be a tenanted land, the land tribunal has got jurisdiction to consider the same in accordance with law and there cannot be any exception by virtue of the special act like the village offices abolition act, 1961. though the land tribunal originally rejected the application of the husband of the petitioner for grant of occupancy rights, it was for want of clarification. but, in view of the clarification inserted by the amendment act of 1979, irrespective of the fact that the land is a inam land or in the regular course is a tenanted land over which there is tenancy claimed, the land tribunal has got jurisdiction to deal with the same. - the appellate court, on the other hand, held that the notice dated 30-12-1986 was illegal, bad, ab initio and consequently the plaintiff is entitled to the injunction. 1 that the alleged unauthorised constructions in the suit property had been completed in 1984, especially when the plaintiff-respondent had failed to submit the completion report as required by section 74 of the cantonments act, 1924? 7. the contention raised by the appellant-defendant is that the suit is barred under section 274 of the cantonments act, 1924. the present order comes under schedule x, item 10. section 274 reads thus: it is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. --(1) a 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 the board considers that such erection or re-erection is an offence under section 184, and may in any such case 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, within 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:order1. the cantonment board by its executive officer is the appellant in this second appeal. the suit is for injunction restraining the defendant not to execute the order of demolition as stated in the notice dated 30-12-1986. the suit was dismissed by the trial court, but came to be decreed by the appellate court and hence the second appeal.2. the case of the plaintiff is as follows:the plaintiff smt. jeenat begum habibur rahiman shaikh filed the suit against the defendant restraining from executing the order of demolition of suit house no. 7, high street, belgaum, as per the notice dated 30-12-1986. it is the case of the plaintiff that the suit house stands in her name as a registered owner in the assessment register. the plaintiff is paying house tax, sanitary tax etc.,3. the defendant started alleging that the plaintiff unauthorisedly constructed the building without valid sanction of the cantonment board and directed to demolish the unauthorised construction and to stop further construction under its notice dated 31-8-1984 and 20-3-1985. the plaintiff has given a reply on 30-9-1985 to both the notices and submitted that she has not constructed any unauthorised construction. defendant without considering the reply issued another notice dated 24-11-1986 giving the plaintiff an opportunity of personal hearing. though the plaintiff gave details of construction as per the licence, defendant proceeded to issue demolition notice under section 256 of the cantonments act, dated 30-12-1986. the alleged unauthorised construction stated in the notice is not at all carried out or constructed. the contents of the said notice are false and baseless. the defendant presumed that the plaintiff has put up new construction unauthorisedly. but in fact no such construction has been put up as alleged. the building was existing being constructed as per the approved plan dated 24-12-1983. so the defendant cannot allege that the construction is unauthorised and liable to be demolished. if the defendant is allowed to execute the order as per the notice dated 30-12-1986 the plaintiff will be put into irreparable loss. the notice issued by the defendant is illegal and improper. the cause of action arose on 30-12-1986 when the defendant issued final notice directing the plaintiff to demolish the construction. hence, this suit.4. the contention of the defendant was that the land on which the building is constructed belongs to the government. the plaintiff violatedthe provisions of the cantonments act and the bye-laws thereunder applicable to the buildings in the cantonment area. the plaintiff neither submitted the plan and the building application to the local authority nor has she taken permission to alter or deviate from the original plan as required under law. the defendant after taking actual measurement and satisfying themselves issued two notices on 31-8-1984 and 30-3-1985 calling upon the plaintiff to demolish the unauthorised construction. the plaintiff did not care to reply the notices. further, it is false to say that plaintiff has put up construction in accordance with the sanctioned plan and specifications. the notice issued by the defendant under section 185 of the act is legal and valid. further, the plaintiff has not preferred any appeal to the appellate authority as provided under the cantonments act. plaintiff has no right to approach the court without exhausting remedies available under the cantonments act. plaintiff is not entitled to any relief since she has not preferred any appeal as against the executive order. the plaintiff in violation of the rules and bye-laws applicable to the buildings unauthorisedly constructed by encroaching upon the government land. further, the defendant justifying the issue of notice of demolition contended that the executive officer of the board had given a personal hearing to the plaintiff before issuing notice under section 256 of the cantonments act. such a notice has been given on 24-11-1986. further, defendant denying the other averments of the plaint contended that demolition notice dated 30-12-1986 is legal and such a notice has been issued after complying the provisions of law. the plaintiff has filed a vexatious suit.5. the trial court held that the notice dated 30-12-1986 is legal and valid and consequently the suit was dismissed. the appellate court, on the other hand, held that the notice dated 30-12-1986 was illegal, bad, ab initio and consequently the plaintiff is entitled to the injunction.6. the following substantial questions have been raised for consideration:(a) whether in view of the guidelines laid down by the supreme court in shiv kumar chadha v municipal corporation of delhi, the lower appellate court was right in holding that the suit was maintainable? (b) whether the lower appellate court was right in concluding on the basis of assumptions and presumptions and the lone testimony of p.w. 1 that the alleged unauthorised constructions in the suit property had been completed in 1984, especially when the plaintiff-respondent had failed to submit the completion report as required by section 74 of the cantonments act, 1924? 7. the contention raised by the appellant-defendant is that the suit is barred under section 274 of the cantonments act, 1924. the present order comes under schedule x, item 10. section 274 reads thus:'appeals from executive order.--(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 that 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 with respect to the computation of periods of limitation thereunder'. the dictum in shiv kumar chadha's ease, supra, is relied upon, which is as follows: 'it is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. there cannot be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. but at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the court. in some special cases where 'jurisdiction error on the part of the corporation is established, a suit shall be maintainable. according to us: (1) the court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the commissioner, in terms of section 343(1) of the corporation act. the court should direct the persons aggrieved to pursue the remedy before the appellate tribunal and then before the administrator in accordance with the provisions of the said act. (2) the court should entertain a suit questioning the validity of an order passed under section 343 of the act, only if the court is of prima facie opinion that the order is nullity in the eye of the law because of any 'jurisdictional error' in exercise of the power by the commissioner or that the order is outside the act'. 8. in view of the supreme court, the suit is not maintainable. however, the supreme court has observed that the plaintiff should be directed to go before the authority to find out the remedy provided for under the particular section. therefore, this question has to be answered in favour of the appellant and against the respondent.9. so far as question no. (b) is concerned, the view of the appellate court is prima facie wrong, in view of section 274 of the act, which is extracted above.10. admittedly, in this case no such certificate is given. therefore, even otherwise, the power under section 185 is not restricted to beexercised within the period of 12 months as is sought to be made out by the first appellate court. once it is found that under section 184 it is an offence, then it is open to the authorities to exercise power under section 185. sections 184 and 185 are quoted below:'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 available, or has been suspended by the officer commanding-in-chief, the command, under clause (b) of sub-section (1) of section 52'. section 185. power to stop erection or re-erection or to demolish.-- (1) a 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 the board considers that such erection or re-erection is an offence under section 184, and may in any such case 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, within 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 the 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'. 11. in view of the specific statutory provisions, the suit is not maintainable and the plaintiff is not entitled to injunction as has been rightly found by the trial court. the judgment and decree of the first appellate court is an error apparent on the face of the records and is not sustainable in view of the legal position mentioned, supra.12. therefore, the second appeal has to be allowed and the suit has to be dismissed. i am inclined to give a chance to the plaintiff to approach the authority and file an appeal within the provisions of the cantonments act. if such an appeal is filed within two months from the date of receipt of the certified copy of the judgment, then that appeal shall be entertained by the defendant and dispose of the same in accordance with law without insisting upon any period of limitation. if however no appeal is filed within that period, it is open to the authorities to take action in pursuance of the notice under section 184.

Judgment:
ORDER

1. The Cantonment Board by its Executive Officer is the appellant in this second appeal. The suit is for injunction restraining the defendant not to execute the order of demolition as stated in the notice dated 30-12-1986. The suit was dismissed by the Trial Court, but came to be decreed by the Appellate Court and hence the second appeal.

2. The case of the plaintiff is as follows:

The plaintiff Smt. Jeenat begum Habibur Rahiman Shaikh filed the suit against the defendant restraining from executing the order of demolition of suit House No. 7, High Street, Belgaum, as per the notice dated 30-12-1986. It is the case of the plaintiff that the suit house stands in her name as a registered owner in the assessment register. The plaintiff is paying house tax, sanitary tax etc.,

3. The defendant started alleging that the plaintiff unauthorisedly constructed the building without valid sanction of the Cantonment Board and directed to demolish the unauthorised construction and to stop further construction under its notice dated 31-8-1984 and 20-3-1985. The plaintiff has given a reply on 30-9-1985 to both the notices and submitted that she has not constructed any unauthorised construction. Defendant without considering the reply issued another notice dated 24-11-1986 giving the plaintiff an opportunity of personal hearing. Though the plaintiff gave details of construction as per the licence, defendant proceeded to issue demolition notice under Section 256 of the Cantonments Act, dated 30-12-1986. The alleged unauthorised construction stated in the notice is not at all carried out or constructed. The contents of the said notice are false and baseless. The defendant presumed that the plaintiff has put up new construction unauthorisedly. But in fact no such construction has been put up as alleged. The building was existing being constructed as per the approved plan dated 24-12-1983. So the defendant cannot allege that the construction is unauthorised and liable to be demolished. If the defendant is allowed to execute the order as per the notice dated 30-12-1986 the plaintiff will be put into irreparable loss. The notice issued by the defendant is illegal and improper. The cause of action arose on 30-12-1986 when the defendant issued final notice directing the plaintiff to demolish the construction. Hence, this suit.

4. The contention of the defendant was that the land on which the building is constructed belongs to the Government. The plaintiff violatedthe provisions of the Cantonments Act and the Bye-laws thereunder applicable to the buildings in the Cantonment area. The plaintiff neither submitted the plan and the building application to the local authority nor has she taken permission to alter or deviate from the original plan as required under law. The defendant after taking actual measurement and satisfying themselves issued two notices on 31-8-1984 and 30-3-1985 calling upon the plaintiff to demolish the unauthorised construction. The plaintiff did not care to reply the notices. Further, it is false to say that plaintiff has put up construction in accordance with the sanctioned plan and specifications. The notice issued by the defendant under Section 185 of the Act is legal and valid. Further, the plaintiff has not preferred any appeal to the Appellate Authority as provided under the Cantonments Act. Plaintiff has no right to approach the Court without exhausting remedies available under the Cantonments Act. Plaintiff is not entitled to any relief since she has not preferred any appeal as against the executive order. The plaintiff in violation of the rules and bye-laws applicable to the buildings unauthorisedly constructed by encroaching upon the Government land. Further, the defendant justifying the issue of notice of demolition contended that the Executive Officer of the Board had given a personal hearing to the plaintiff before issuing notice under Section 256 of the Cantonments Act. Such a notice has been given on 24-11-1986. Further, defendant denying the other averments of the plaint contended that demolition notice dated 30-12-1986 is legal and such a notice has been issued after complying the provisions of law. The plaintiff has filed a vexatious suit.

5. The Trial Court held that the notice dated 30-12-1986 is legal and valid and consequently the suit was dismissed. The Appellate Court, on the other hand, held that the notice dated 30-12-1986 was illegal, bad, ab initio and consequently the plaintiff is entitled to the injunction.

6. The following substantial questions have been raised for consideration:

(a) Whether in view of the guidelines laid down by the Supreme Court in Shiv Kumar Chadha v Municipal Corporation of Delhi, the lower Appellate Court was right in holding that the suit was maintainable?

(b) Whether the lower Appellate Court was right in concluding on the basis of assumptions and presumptions and the lone testimony of P.W. 1 that the alleged unauthorised constructions in the suit property had been completed in 1984, especially when the plaintiff-respondent had failed to submit the completion report as required by Section 74 of the Cantonments Act, 1924?

7. The contention raised by the appellant-defendant is that the suit is barred under Section 274 of the Cantonments Act, 1924. The present order comes under Schedule X, Item 10. Section 274 reads thus:

'Appeals from executive order.--(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 that 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 with respect to the computation of periods of limitation thereunder'.

The dictum in Shiv Kumar Chadha's ease, supra, is relied upon, which is as follows:

'It is well-known that in most of the Cities Building Regulations and Bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the Regulations and Bye-laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases where 'jurisdiction error on the part of the Corporation is established, a suit shall be maintainable. According to us:

(1) The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of Section 343(1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act.

(2) The Court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the Court is of prima facie opinion that the order is nullity in the eye of the law because of any 'jurisdictional error' in exercise of the power by the Commissioner or that the order is outside the Act'.

8. In view of the Supreme Court, the suit is not maintainable. However, the Supreme Court has observed that the plaintiff should be directed to go before the authority to find out the remedy provided for under the particular section. Therefore, this question has to be answered in favour of the appellant and against the respondent.

9. So far as question No. (b) is concerned, the view of the Appellate Court is prima facie wrong, in view of Section 274 of the Act, which is extracted above.

10. Admittedly, in this case no such certificate is given. Therefore, even otherwise, the power under Section 185 is not restricted to beexercised within the period of 12 months as is sought to be made out by the First Appellate Court. Once it is found that under Section 184 it is an offence, then it is open to the authorities to exercise power under Section 185. Sections 184 and 185 are quoted below:

'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 available, or has been suspended by the Officer Commanding-in-Chief, the Command, under clause (b) of sub-section (1) of Section 52'.

Section 185. Power to stop erection or re-erection or to demolish.-- (1) A 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 the Board considers that such erection or re-erection is an offence under Section 184, and may in any such case 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, within 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 the 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'.

11. In view of the specific statutory provisions, the suit is not maintainable and the plaintiff is not entitled to injunction as has been rightly found by the Trial Court. The judgment and decree of the First Appellate Court is an error apparent on the face of the records and is not sustainable in view of the legal position mentioned, supra.

12. Therefore, the second appeal has to be allowed and the suit has to be dismissed. I am inclined to give a chance to the plaintiff to approach the authority and file an appeal within the provisions of the Cantonments Act. If such an appeal is filed within two months from the date of receipt of the certified copy of the judgment, then that appeal shall be entertained by the defendant and dispose of the same in accordance with law without insisting upon any period of limitation. If however no appeal is filed within that period, it is open to the authorities to take action in pursuance of the notice under Section 184.