Cantonment Board, Meerut v. Chandra Prakash Jain — 1979 DIGILAW 522 (ALL)

ORDER A.N. Varma, J. - These two Revisions are being disposed of by a common order as the question involved in both the Revisions is identical. The Revisions are directed against orders passed by the court below disposing of a preliminary issue, the issue being whether the court has jurisdiction to try the suit. 2. Briefly stated the relevant facts are these. Plaintiff-opposite-parties have filed two suits for an injunction restraining the defendant-applicant from demolishing certain constructions made by the plaintiff-opposite-parties on the ground that the notice issued by the defendant-applicant for demolition of the construction, is null and void. The plaintiff-opposite-parties filed the two suits on the assertion that the disputed construction had been made by the plaintiff-opposite-parties in accordance with the provisions of sub-section (6) of Section 181 of the Cantonments Act, 1924, and that the Board having neglected and omitted for more than one month after receipt of a valid notice given by the plaintiff-opposite-parties to the Board under Section 179 of the aforesaid Act to pass any order sanctioning or refusing to sanction the proposed construction, it would be deemed to have given the sanction to the erection of the building unconditionally under subsection (6) of Section 181, and consequently, the construction of the building in question was perfectly lawful. That being so, the Board had no power to give any notice under Section 185 of the aforesaid Act and the notice impugned by the suits is a complete nullity. On these assertions, the plaintiff-opposite-parties prayed for the relief of injunction restraining the Board from demolishing the construction. 3. The applicant Board filed a written statement and alleged that the plaintiff having filed an appeal against the impugned notice to the appropriate authority and the said authority having dismissed the appeal of the plaintiff-opposite-parties, the order passed by the appellate authority became final under Section 278 of the aforesaid Act, and consequently, the suits were barred by the provision of Section 278. In both the suits, a preliminary issue was framed to the effect whether the suit was barred by Section 278 of the Cantonments Board Act, 1924. The court below has answered the issue in favour of the plaintiffs-opposite-parties and against the defendant-applicant and hence the Revision. 4. In both the suits, a preliminary issue was framed to the effect whether the suit was barred by Section 278 of the Cantonments Board Act, 1924. The court below has answered the issue in favour of the plaintiffs-opposite-parties and against the defendant-applicant and hence the Revision. 4. The court below has taken the view that inasmuch as the plaintiff-opposite-parties have challenged the notice impugned in the suit as a complete nullity on the ground that the notice is void ab initio, the bar of Section 278 of the aforesaid Act is not applicable, and in such a case, the jurisdiction of the civil court is not ousted. The court below has taken the view that the civil court has jurisdiction to adjudicate on the validity of the impugned notice as distinct from its correctness or propriety. 5. Learned counsel for the applicant has challenged the validity of the view taken by the court below and has urged that the language of Section 278 of the Act is explicit and unambiguous. The orders passed by the appellate court having been made final under Section 278 of the Act. It could not be called in question before a civil court and the suit is, therefore, incompetent. 6. Having heard learned counsel for the parties, I am clearly of the opinion that there is no force in this Revision and that the view taken by the court below is correct. 7. In order to appreciate the submission of the learned counsel for the parties, it will be necessary to reproduce some of the provisions of the aforesaid Act having a bearing on the issue involved. Section 184 of the aforesaid Act in so far as it is relevant is as follows: - "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) and (c) .......... shall be punishable with fine which may extend to five hundred rupees." 8. Section 185 to the extent relevant for our purposes is as follows: - "185. shall be punishable with fine which may extend to five hundred rupees." 8. Section 185 to the extent relevant for our purposes is as follows: - "185. The 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 the 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, except by way of composition such sum as it thinks reasonable". 9. Section 274 provides for appeals against any order described in the second column of the 5th Schedule of the Act to the authority in that behalf mentioned in the third column thereof. In the 5th Schedule under column No. 2 orders or notice against which appeal lies have been mentioned. One of the orders or notices mentioned under column No. 2 Boards notice to alter or demolish a building under Section 185. It is thus clear that the appeal is provided against an order described in the second column, which include a notice issued under Section 185 of the aforesaid Act to demolish a building. 10. In my view, the appeals which are provided under Section 274 are appeals against orders or notices passed by the Board which are valid orders or notices and not orders or notices which are challenged as complete nullities. Where the challenge is that the notice issued under Section 185 is completely void, it should be open to the aggrieved person to ignore that order, or to have it adjudged void by a Civil Court. For the invalidity or the nullity of a notice could not be cured even if such a notice is confirmed in appeal. Where the challenge is that the notice issued under Section 185 is completely void, it should be open to the aggrieved person to ignore that order, or to have it adjudged void by a Civil Court. For the invalidity or the nullity of a notice could not be cured even if such a notice is confirmed in appeal. The finality which is attached to an order passed by the appellate court under Section 278 of the aforesaid Act is the finality given to valid orders or notices passed or issued under the Act and not to orders or notices which are a complete nullity. 11. Learned counsel for the opposite parties had placed on the decision in the case of Ram Swarup v. Shikar Chand reported in AIR 1966 SC 893 , Katikara Chintamani Dora v. Guatreddi Annamanaidu reported in AIR 1974 SC 1069 ; Abad Cotton Mfg. Co. Ltd. v. Union of India reported in AIR 1977 Guj. 113 (FB) (para 13) and AIR 1969 SC 78 . So far as Supreme Court is concerned, it has repeatedly held that notwithstanding the fact that certain orders are declared to be final under a statute it is always open to Civil Court to entertain a suit where the challenge is that the order in question is a complete nullity, having been passed in breach of the provisions of the Statute or by an authority having no power to pass the same or it having been passed in violation of the fundamental principles of judicial procedure. The above principle has been reiterated in all the decisions of the Supreme Court, the citation of which has been given above. In the case of Abad Cotton Mfg. Co. The above principle has been reiterated in all the decisions of the Supreme Court, the citation of which has been given above. In the case of Abad Cotton Mfg. Co. Ltd. v. Union of India (supra) a Full Bench of the Gujarat High Court, was considering the question of the bar created by Article 226 (3) of the Constitution of India and after an exhaustive discussion of the entire law on the subject, held that the bar of Article 226 (3) of the Constitution would not apply to orders which are mere "purported orders" under the Act i. e. the bar would not apply in cases where the impugned orders are a nullity on the ground of being ex facie without jurisdiction or having been passed in non-compliance with the provisions of the Act and that in such cases a remedy by way of appeal would be of no avail as the defect of the order cannot be cured even if the appeal confirms the original order which has the vice of nullity. Where, therefore, a plaintiff challenges the order on the ground that it only purports to have been issued under that enactment, though in truth and substance it is a nullity, the Civil Court's jurisdiction to entertain the suit is not barred. The view of the court below, therefore, that inasmuch as the plaintiff has challenged the impugned notices as being void, the bar of Section 278 would not apply is, therefore, correct in law. 12. The assertion of the plaintiffs-opposite-parties is that they had served a valid notice of intention to erect the building on the Cantonment Board under Section 179 of the aforesaid Act, and that the Board having neglected to pass any orders thereon within fifteen days of the date of communication of such a notice, the Board will be deemed to have given sanction to the erection of the building, and that being so, the plaintiffs cannot be said to have commenced or completed the constructions without a proper sanction, and consequently, the erection of the building was not an offence under Section 184 of the Act. The action of plaintiffs not. being an offence under Section 184, the Board had no power to issue a notice under Section 185 of the Act. This was, therefore, a case where the notice impugned in the suit was being challenged as completely void ab initio. The action of plaintiffs not. being an offence under Section 184, the Board had no power to issue a notice under Section 185 of the Act. This was, therefore, a case where the notice impugned in the suit was being challenged as completely void ab initio. Under these circumstances, the court below has rightly held that the Civil Courts jurisdiction is not barred. 13. The view taken by the court below is completely in accordance with the judicial pronouncements of their Lordships of the Supreme Court and of this court in regard to the extent of the jurisdiction of the civil court to entertain a suit of the nature with which we are concerned. In my view, the orders passed by .the court below on the preliminary issue are correct. 14. In the result, the Revisions fail and are dismissed with costs.