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Allahabad High Court · body

2005 DIGILAW 1561 (ALL)

KAMLESH DEVI v. CANTONMENT BOARD, meerut CANTT

2005-08-23

D.P.SINGH

body2005
( 1 ) PLEADINGS are complete and the counsel for the parties agree that this petition may be disposed off under the Rules of the Court. ( 2 ) HEARD Sri Utpal Chatterji, learned counsel for the petitioner and Sri Mohd. Isa khan, learned counsel for the respondent no. 1. ( 3 ) THIS writ petition is directed against concurrent orders dated 12th August, 1999 and l8 th September, 2003 by which a temporary injunction application filed in a suit for permanent injunction has been rejected by both the Courts below. ( 4 ) IT appears that the plaintiff petitioner allegedly purchased eastern portion of bunglow No. 70-A, Alimpura in Meerut cantonment vide sale deed dated 21-11-1994 having a total area of 263. 05 sq. meters including built up area of about 141. 03 sq. meters. It is contended that since the transferred constructions were very old, therefore, she repaired the same. However, the respondent claiming that new constructions were made, it issued notice under Section 256 of the Cantonment Act to her husband, who filed his reply which was rejected. The husband of the petitioner thereafter preferred an appeal under Section 274 of the act which was also rejected. Fearing eminent demolition she filed suit No. 726 of 1999 for permanent injunction along with an application for temporary injunction wherein both the impugned orders have been passed. ( 5 ) LEARNED counsel for the petitioner has urged that no notice was ever issued or served upon the petitioner and as such the proceedings for demolition were against law and thus both the Courts below erred in holding that the petitioner had sufficient knowledge of the proceedings. ( 6 ) THE case as set up by the petitioner in the plaint and also in the application for temporary injunction was that she bought the eastern portion of bunglow No. 70-A, bearing survey No. 379/1 vide registered sale deed dated 21-11-1994 which included a built up area of about 141. 03 sq. meters. Though the Union of India was the owner of the land her vendors were its lessees and, therefore, she was absolute owner in possession of the super-structures. It was alleged that since the building was old she renovated it but made no new constructions. 03 sq. meters. Though the Union of India was the owner of the land her vendors were its lessees and, therefore, she was absolute owner in possession of the super-structures. It was alleged that since the building was old she renovated it but made no new constructions. However, the defendant No. 1 issued notice to defendant No. 2 her husband, but without any notice to the petitioner they could not take steps for demolition treating the construction as new and illegal. The cantonment Board contested the suit, inter alia, starting that the disputed land is under the management of the Defence Estate Officer, meerut Circle and the Union of India is the landlord. The lease executed in favour of Sri j. D. Singhal had expired on 30-6-1992. During inspection of the disputed land, it was found that the husband of the petitioner, sri Satya Prakash, was making new constructions without obtaining any permission, thus, a show cause notice dated 13-10-1995 was issued to her husband who filed his reply dated 5-11-1995. After consideration of the reply the board issued a notice under Section 185 of the Cantonment act, 1924 on 24-4-1996 which was served on the son of the petitioner and her husband filed an appeal against the aforesaid order which was rejected vide order and judgment dated 17-12-1998. After rejection of the appeal, a notice under Section 356 of the Act was served on the husband of the petitioner on 25-6-1999. Nevertheless, now the petitioner has filed the suit for injunction after exhausting the remedy under the act. ( 7 ) FROM a perusal of the record and the pleadings of the parties, it is apparent that the petitioner and her husband both stay together in the disputed premises. In the proceedings before the Board or before the appellate Authority her husband took active part but at no point of time he raised any objections that in fact the owner of the premises was his wife. After failing in the proceedings under the Act, the petitioner has raised the question of notice in the suit. It is admitted to the parties that notice in fact was served on her husband and on one occasion it was also served on their sbn. There is no allegation that the relations between the two were strained or they were living separately or there was any clash of interest between them. It is admitted to the parties that notice in fact was served on her husband and on one occasion it was also served on their sbn. There is no allegation that the relations between the two were strained or they were living separately or there was any clash of interest between them. Both the Courts have recorded categorical findings of fact that the petitioner had sufficient notice of the proceedings. the purpose and object of a notice is to provide an opportunity to the party to take part in the proceedings and disclose his stand. Even if no notice is served personally but if a party has sufficient knowledge about the proceedings and purposely does not take part therein, he cannot later raise the bogey of notice. Therefore, in my opinion, the contention of the learned counsel for the petitioner cannot be accepted and the Courts below were justified in holding that the petitioner had sufficient notice. ( 8 ) IT has then been urged that the burden lay upon the Cantonment Board to prove that the buildings were illegal and the Courts below have wrongly placed the burden on the petitioner and thus the order is liable to be quashed. ( 9 ) FROM a perusal of the record, it is apparent that the petitioner has filed the suit with the allegation that she has only renovated the house and has not made any new constructions meaning thereby that the constructions were legal. It is admitted to the parties that no constructions can be made in a Cantonment area without first obtaining the permission of the board. The specific case in the notice and also before the courts below was that the petitioner has constructed two shops having dimension of 16 x 2" x 16 x 6 and another 16. 2" x 7. 7" together with a hall of 20 x 19. The petitioners filed no sanction for the aforesaid constructions. The burden of proving that she had only made renovation in the existing legal construction lay on her and she had to file the sanctioned plan of the existing constructions to show that no deviation has been made. In my opinion, both the courts below were fully justified in holding that the petitioner could not prove that only renovation of existing constructions was made. In my opinion, both the courts below were fully justified in holding that the petitioner could not prove that only renovation of existing constructions was made. ( 10 ) EVEN during arguments, the counsel for the petitioner failed to produce any sanctioned map for constructions over the disputed land especially so when the details of the constructions purchased has not been given in the sale deed. On the facts of this case, I do not find that this is a fit case for interference under Article 226 of the constitution of India. Rejected. However, no orders as to costs. Petition dismissed. .