Civil Revision No. 280 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 280 of 2007 (O&M) Date of decision: 05.08.2010 Deepak Kumar Jain ....Petitioner Versus Cantonment Board, Ferozepur Cantt. ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Mandeep Singh Sachdev, Advocate, for the petitioner. Mr. B.D. Sharma, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This revision petition, under Article 227 of the Constitution of India, has been moved to challenge the order dated 19.10.2006, passed by the learned Courts below, on an application moved by the plaintiff/petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The plaintiff/petitioner filed a suit pleading therein, that Dal Chand Jain was the owner of the property and after his death Khub Chand's son inherited the property alongwith heirs of Rajinder Prasad son of Tulsi Ram son of Dal Chand by way of decree passed by the Hon'ble Delhi High Court in civil suit No.68 of 1973. By way of decree passed by the Hon'ble Delhi High Court the award regarding partition was made rule of the court and house No.1 to 10/13 (Doubled storeyed) Church Road, Ferozpur Cantt, came to the share of the heirs of the petitioner along with other heirs of Rajinder Parsad. The property in question was said to have fallen to the share of the petitioner. The Civil Revision No. 280 of 2007 (O&M) -2- petitioner applied for permission to raise construction and his plan was approved vide resolution No.6(4) dated 11.12.1922. The case of the petitioner is, that sanction for construction was duly granted. It was also the case set up by the plaintiff/petitioner, that shops were 80/82 years old and with the passage of time the roofs developed cracks and leaking in the rainy season, therefore, the plaintiff/petitioner was interested in repair of the shops, and accordingly moved an application to the defendant-Board on 26.7.2000 for permission to carry out construction/renovation/repairs. The plaintiff/petitioner further claimed that under a bona fide belief that the plan has been sanctioned, he started repair of shops and changed the roofs of the said shops to avoid leaking of the shops in the rainy season. The petitioner, thus, claimed that no illegality was committed by him. The repair/construction was said to be six years old. The case of the plaintiff/petitioner further was, that instead of sanctioning the repair/construction, notice under Section 185 (1) of the Cantonments Act 1924 was issued on 6.5.2003, directing the petitioner to demolish the building or to re-erect the same in the manner specified in column (4) of the schedule mentioned in the notice. Section 185(1) of the Cantonments Act, 1924 reads as under: “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 Civil Revision No. 280 of 2007 (O&M) -3- the completion of such erection or re-erection in like manner direct the alteration or demolish 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; Provided further that the Board shall not without the previous concurrence of the Officer Commanding-in- Chief, the Command, accept any sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board.” The petitioner being aggrieved by the notice under Section 185(1) of the Cantonments Act, 1924 filed appeal under Section 274 of the Cantonments Act, 1924 before the Director Defence Estate Western Command, Chandigarh. The appeal filed by the petitioner stands admitted on 29.5.2003. The petitioner also moved an application under Section 276 of the Cantonments Act, 1924 for directing the Cantonment Board to keep all the proceedings in abeyance pending decision of the appeal. An offer was also made by the petitioner to pay composition fee as per the provisions of the Act and Policy of the Government. The case of the plaintiff/petitioner is, that information regarding pendency of the appeal and the application was given to the Chief Executive Officer of the Cantonment Board. A copy of the appeal has been attached as Annexure P/3 with this revision petition. Section 274 of the Cantonments Act, 1924 reads as under: - Civil Revision No. 280 of 2007 (O&M) -4- “274. Appeals from executive orders. - (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 the forth 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 (36 to 1963), with respect to the computation of period of limitation thereunder.” In spite of appeal and matter being subjudice before the appellate authority the respondent-Board issued notice under Section 256 of the Cantonments Act, 1924, directing the petitioner to demolish the unauthorised encroachment/construction within 15 days, failing which authority was given to Sh. Satish Kumar, J.E., CBE, to demolish the construction at the risk and cost of the petitioner i.e. to over-reach the proceedings pending before appellate authority. This order was challenged by the petitioner in civil suit. Along with the suit, the petitioner moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, restraining the Cantonment Board from acting on the notice issued under Section 256 of the Cantonments Act, 1924. The learned trial Court as well as the learned appellate Court have dismissed the application moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure on the ground, that as the respondent-Board was taking action in accordance with law, therefore, the petitioner was not entitled to injunction, as the civil court cannot issue instructions against exercise of statutory powers by the authorities under the Act. Civil Revision No. 280 of 2007 (O&M) -5- The learned counsel for the petitioner contends, that the learned trial Court was wrong in coming to the conclusion that the respondent-Board was acting under the statute, therefore, no injunction could be granted, whereas it has been proved that, in fact, the respondent-Board was acting in direct violation of the provisions of the Act to defeat the right of appeal under the Act. There is force in the contention raised by the learned counsel for the petitioner. The fact that the appeal filed by the petitioner stands admitted, leaves no manner of doubt that respondent-Board was debarred from proceeding further with the matter till the disposal of the appeal, as provisions of statute cannot be allowed to be violated. The learned counsel for the Cantonment Board on the other hand vehemently contended, that there is no automatic stay of the notice issued under Section 185 of the Cantonments Act, 1924. Learned counsel for the petitioner contended, that the learned Courts below wrongly came to the conclusion, that the respondent- Board was acting under the statute and, therefore, no injunction could be issued in favour of the petitioner. The contention of the learned counsel for the petitioner was, that under the provisions of Section 276 of the Cantonments Act, 1924, there is automatic stay on admission of appeal. The contention, therefore, was that once the appeal was admitted, there was no jurisdiction with the Cantonment Board to issue notice under Section 256 of the Act. The application is opposed by the learned counsel for the Civil Revision No. 280 of 2007 (O&M) -6- respondent on the plea, that in absence of stay order it was not possible for the petitioner to challenge the order under Section 256 of the Act, as remedy with the petitioner was either to get stay or demolish the building as per notice. The contention of the learned counsel for the petitioner deserves to be accepted. Once, it was not in dispute that the appeal stands admitted by the appellate authority, therefore, the Cantonment Board should have waited for the result of the notice. The contention of the learned counsel for the respondent, that the civil court had no jurisdiction to entertain any suit or proceedings against the action taken under the Act in view of Section 250 of the Cantonments Act, 2006 also cannot be sustained as in view of the deemed stay under Section 274 of the Cantonments Act, 1924. The contention raised by the learned counsel for the respondent cannot be accepted as in case of violation of statutory provisions of law the civil court gets jurisdiction to adjudicate upon the validity of the action taken. For the reasons stated above, this revision is allowed, the impugned order passed by the learned Courts below is set aside and the application moved by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure stands allowed, but with no order as to costs. (Vinod K. Sharma) Judge August 05, 2010 R.S.