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1998 Supreme(Kar) 641
Karnataka High Court
CANTONMENT BOARD - Appellant
Versus
JEENATH BEGUM HABIBUR RAHMAN SHEIKH - Respondent
Decided On : 09-22-98
R.S.A. : 10 of 1996
K.ANANTHARAMAN, R.B.DESHPANDE
The main legal point established in the judgment is that the plaintiff must exhaust remedies available under the Cantonments Act before approaching the court, and the suit was not maintainable under the Act.
Headnote:
Cantonment Board - Injunction - Cantonments Act, 1924, Section 256, Section 185, Section 184 - The court discussed the provisions of the Cantonments Act, particularly Sections 256, 185, and 184, and their applicability to the unauthorized construction of a building. The court emphasized that the suit was not maintainable under the Act and directed the plaintiff to pursue remedies available under the Cantonments Act.
Fact of the Case:
The plaintiff filed a suit seeking injunction against the defendant's order of demolition for unauthorized construction of a building. The Trial Court dismissed the suit, but the Appellate Court decreed in favor of the plaintiff, leading to the second appeal.
Finding of the Court:
The Trial Court found the demolition notice legal and valid, dismissing the suit. The Appellate Court, however, deemed the notice illegal and granted injunction in favor of the plaintiff.
Issues: The substantial questions raised included the maintainability of the suit in light of Supreme Court guidelines and the validity of the alleged unauthorized constructions. The defendant contended that the suit was barred under Section 274 of the Cantonments Act, 1924.
Ratio Decidendi: The court held that the suit was not maintainable under the Cantonments Act, emphasizing the need for the plaintiff to exhaust remedies available under the Act before approaching the court.
Final Decision: The second appeal was allowed, and the suit was dismissed. The plaintiff was given the opportunity to file an appeal within two months under the provisions of the Cantonments Act.
( 1 ) THE Cantonment Board by its Executive Officer is the appellant in this second appeal. The suit is for injunction restraining the defendant not tu 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. Jeenatbegum 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 violated the 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
