HAANNURAMMABAI KALAL Vs. CANOTMENT BOARD BELGAUM

JUDGEMENT

(1.) THE suit filed by the appellant for injunction restraining the respondent-Cantonment Board (the 'board' in short) and also to declare the notices issued under Sections 185 and 256 of the cantonment Act, 1924, as null and void, was dismissed by the trial Court on the ground that the appellant ought to have sought the remedy under the Cantonment Act itself and also for not complying with the requirement of issuing notice to the Cantonment Board and following the dismissal of the suit, the appeal was preferred before the lower Appellate Court in r. A. No. 31/1994 and the appellant was unsuccessful as the Appellate Court also confirmed the judgment and decree passed by the trial Court in O. S. No. 187/1988. Thus, the plaintiff is before this Court in this second appeal.

(2.) THE brief facts of the case are to the effect that the appellant claiming to be the owner in possession of suit property bearing house No. 57, situated at High Street, Camp-Belgaum, and having her name entered in the GLR extract in respect of the suit property maintained by the Cantonment board, sought permission of the Board to put up a new construction by making an application to the said effect on 16-5-1983. It is the case of the plaintiff that permission was accorded on 4-1-1984 and soon after the construction was over, she received a notice under Section 185 (1) of the cantonment Act, 1924, on 12-3-1984 (as per Ex. D2) and in the said notice, it was brought to the notice that construction was against the rules and extra construction has been done and hence the appellant was called upon to demolish the unauthorised construction within 30 days from the date of said notice. It is the case of the appellant that she replied to the said notice on 12-4-1984 and the explanation offered by her was accepted and no further steps were taken by the Board in pursuance to the notice issued under Section 185 of the Cantonment Act,1924. All of a sudden, the appellant received notice under Section 256 of the Cantonment Act, 1924, as per Ex. P4 dated 2-3-1988 and as the appellant was directed to demolish the unauthorised construction within thirty days failing which the board would take steps to get the demolition done on 15-3-1988, the appellant rushed to the Civil Court for the relief of injunction restraining the Board from going ahead with the demolition of the house. Amendment was also sought later on by seeking the additional prayer of declaring the notices issued under Section 185 (1) and Section 256 of the Cantonment Act as null and void ab-initio. The respondent-Board filed its objections by taking up the stand that there was no sanction accorded to the appellant for construction of new house and secondly she had violated the bye-laws by putting up unauthorised construction and before issuing notice under section 256 of the Act, the appellant was given an opportunity on 30-9-1987 but the appellant did not prefer any appeal as provided under the cantonment Act, 1924, and therefore, the present suit was not maintainable in the Civil Court as there was a specific bar in the cantonment Act for seeking remedy in the Civil Court and thus, prayed for dismissal of the suit.

(3.) THE learned Judge of the Civil Court based on the pleadings of the parties, framed as many as six issues and answered issues 4 and additional issue No. 2 in the affirmative and the rest in the negative and came to the conclusion that the appellant ought to have sought remedy under the cantonment Act itself as there was a bar in approaching the Civil Court under the said Act and secondly, no notice as contemplated under Section 80 of CPC was given to the Board and on these two reasonings, the suit of the appellant was dismissed. The lower Appellate Court concurred with the view taken by the trial Court and the appeal preferred by the plaintiff was dismissed and this is how the plaintiff is before this Court in this second appeal.