Secunderabad Cantonment Board vs M/S. Mishra Construction And ...
2022 Latest Caselaw 289 Tel

             HON'BLE SMT. JUSTICE P.SREE SUDHA

                SECOND APPEAL No.658 of 2012

                            JUDGMENT

1. This Second Appeal is directed against the judgment and

decree dated 15.07.2010 in A.S.No.126 of 2005 on the file of the

Court of the XX Additional Chief Judge, City Civil Court,

Secunderabad, whereunder and whereby the appeal filed by

Secunderabad Cantonment Board represented by its Chief

Executive Officer challenging the judgment and decree dated

17.02.2005 in O.S.No.162 of 1997 on the file of the learned

III Senior Civil Judge, City Civil Court, Secunderabad, was

dismissed.

2. The appellant herein is the defendant and the respondent

herein is the plaintiff in O.S.No.162 of 1997. For the sake of

convenience, the parties hereinafter are referred to as they are

arrayed in the said suit.

3. At the time of admission of this appeal, the appellant is

permitted to serve personal notice to the respondent-plaintiff by

Registered Post with Acknowledgment Due. But, the postal

endorsement shows that the envelope was returned with an

endorsement 'unclaimed', which amounts to deemed service.

4. Heard the learned counsel for the appellant.

5. The following substantial questions of law are sought to be

raised by the appellant-defendant:

i) The plaintiff did not exhaust the remedy available within

the ambit of the Cantonment Act, 1924 (for short, 'the Act of 1924')

under Section 274 but approached the trial Court hastily and as

such the suit is liable to be dismissed. It was further contended

that the appellate Court erred in relying on the decision of this

Court in 3 ACES, HYDERABAD V/s. MUNICIPAL CORPORATION

OF HYDERABAD1 though it has no relevance to the case on hand.

ii) The appellate Court failed to appreciate Section 185 of

the Act of 1924 in true perspective and erred in decreeing the suit

against the Secunderabad Cantonment Board (for short, 'the

Board') defeating the very purpose of the Board with power and

authority to regularize construction and re-construction in public

interest.

iii) The respondent herein is only a General Power of

Attorney (GPA) Holder but not owner of the schedule property, but

it was not considered by both the Courts below.

iv) Respondent obtained for two separate plans but

constructed one building clubbing both the plans and violated the

building bye laws.

v) Though the Board issued notices to the respondent to

stop construction, it did not stop the construction and appeared

before the Board. Admittedly, the sanction was accorded only for

stilt, ground and two upper floors, but the respondent constructed

cellar, ground and three upper floors and as such the construction

of stilt and third floor is unauthorized. More over, the respondent

did not intimate about the commencement of construction or

AIR 1995 AP 17 (FB)

completion of the construction and it did not obtain plinth

checking certificate from the Board.

vi) D.W.1 admitted that they failed to maintain FSI as per

the sanction accorded by the Board and the said admission itself is

sufficient for dismissal of the suit. Further, D.W.1 also admitted

that stilt floor was converted into a regular floor and there was no

sanction for construction of the cellar and third floor and that the

respondent did not stop the construction activities in spite of

receiving the notices and proceeded with the construction.

vii) The appellate Court ought to have dismissed the suit

on the ground that the appellant is a civic body authorized to

check the unauthorized constructions within the cantonment and

the Board initiated proceedings in the interest of general public but

erred in holding that no deviations and does not call for resorting

to the extreme step of demolition.

6. The plaintiff filed O.S.No.162 of 1997 claiming that

Mrs.Sharada Srinivas and Mrs.Ranjani Rangarajan were joint

owners of the land admeasuring 1325 square yards in Sy. Nos.17

to 23 with a house bearing No.3-9-105, Krishna Bhavan,

Krishnapuri West Marredpally, Secunderabad, (hereinafter referred

to as 'suit schedule property'), having got the same by way of a

Memorandum of Settlement dated 16.07.1993 between Sri

B.K.Seshu and Smt.Sharada Srinivasan and Smt.Ranjani

Rangarajan. The plaintiff entered into a Development Agreement

with the joint owners on 20.10.1993 for development of the land by

constructing residential complex after demolishing the existing

structures. The joint owners also executed a General Power of

Attorney in favour of the plaintiff on 30.10.1993. They obtained

ULC Certificate dated 25.08.1980 from the Office of the Ministry of

Defence, New Delhi. They also applied for approval of the plans for

construction of multistoried complex under Section179 of the Act

of 1924. The Board sanctioned plans vide its Resolution No.28(4)

dated 04.12.1995 and Resolution No.40 dated 04.12.1995. The

sanctioned plan consists of stilt floor, ground, first and second

floors. As per the specifications mentioned in the plan, the plaintiff

constructed multistoried complex. While construction was going

on, the representative of the Board inspected the suit schedule

property for several times, but not raised any objection. Though

there are no deviations or alterations, the Board issued notice

under Section 185 of the Act of 1924 directing the plaintiff to

remove the unauthorized constructions only with an intention to

harass the plaintiff and by that time the plaintiff completed the

entire construction in the suit schedule property except the wiring

and plastering work in the second floor. The prospective

purchasers of the plots were also intended to join in their

respective plots. The plaintiff states that it commenced the

construction and completed the same within one year and

possession of flats were also delivered to the respective flat owners.

The plaintiff would aver that it did not violate the rules and

regulations or bye laws of the Board. In view of the notice issued

by the Board, it may resort to demolish the structures, in which

event the plaintiff would sustain great financial loss, and as such,

the plaintiff gave reply notice on 04.03.1997 for regularizing the

constructions. The plaintiff further aver that there is no necessity

to the Board to issue notice under Section 273 of the Act of 1924

and that the suit is filed only for mere injunction and requested

the Court to grant permanent injunction restraining the Board

from interfering with the peaceful possession in respect of the suit

schedule property or demolition of the structures.

7. In the written statement filed by the defendant, it is

contended that Mrs.Sharada Srinivas and Mrs.Ranjani Rangarajan

were joint owners. They gave building application for permission to

construct a residential complex. Plans were sanctioned on

04.12.1995 permitting them to construct multistoried building

consisting of stilt, ground, first and second floors. The total plot

area as per the sanctioned plan and title documents was 1175

square yards. Both of them obtained permission for construction of

their respective buildings under two separate sanctioned plans.

During routine site inspection, the concerned area Supervisor

Mr.M.Phani Kumar found that the plaintiff was constructing one

residential complex buy clubbing two sanctions and deviated from

the original sanctioned plan and when the construction was in

progress the representative of the Board inspected the suit

schedule property and raised an objection. The plaintiff

constructed RCC columns in the setback area, which is in gross

violation of the sanctioned plan and against the building byelaws.

The cellar floor was constructed unauthorisedly which was not

sanctioned and thus the Board treated it as unauthorized

construction and the owners are guilty of committing the offence

punishable under Section 184 of the Act of 1924. A preliminary

show cause notice was issued under Notice No.EB/House No.3-9-

105/M'pally/4597 dated 06.11.1996 directing the plaintiff to

remove the unauthorized construction. As the plaintiff did not stop

the construction in spite of receipt the said show cause notice, a

notice under Section 185 of the Act of 1924 was issued on

09.12.1996. The said notice was issued after passing resolution by

the elected representative of the people under Resolution CBR

No.3(2) dated 26.11.1996. The set backs are not provided and the

common areas are encroached. Cellar floor was unauthorisedly

constructed and construction was in gross violation of the building

byelaws. The photographs of the unauthorized construction were

filed as Document Nos.1 and 2, attested copy of the report of the

Supervisor filed as Document No.3, office copy of the notice under

Section 185 of the Act of 1924 was filed as Document No.4 and the

sanctioned plan is filed as Document No.5. It is further contended

that the plaintiff or the owners had the absolute right to prefer an

appeal before the Competent Authority under Section 274 of the

Act of 1924, but it did not choose to avail the said facility or the

remedy available to it under the statute. The plaintiff did not give

reply to the show cause notice. As the right of hearing was

provided and the plaintiff had an opportunity of preferring an

appeal against the proceedings under Section 185 of the Act of

1924, the suit is not maintainable and that the plaintiff

approached the Court seeking equitable relief of injunction but

suppressed the material facts and did not exhaust the remedy

available under the Act of 1924, and as such the suit is liable to be

dismissed. It is also stated that no statutory notice in terms of

Section 273 of the Act of 1924 was issued by the plaintiff and thus

the suit is bad in law for want of notice. Either in the plaint or in

the affidavit filed in support of the interlocutory application for

dispensing with the notice, no grounds are elucidated, and thus,

the suit is to be dismissed for non-issuance of mandatory notice. It

is also stated that the fact finding regarding deviations and the

unauthorized construction falls within the domain of the Board

and the Board has the required experts, and as such the suit is to

be dismissed. As the right of appeal was also provided to the

plaintiff under the Act of 1924, the proceedings under Section 185

of the Act of 1924 were initiated only after providing the reasonable

opportunity and after passing of the resolution by the elected

representative of the people, the suit is not maintainable. It is also

stated that the suit is filed by the plaintiff but not the true owners

of the property and as such the suit is bad for non-joinder of

necessary parties and thus requested to dismiss the suit.

8. Basing on the above pleadings, oral and documentary

available on record and the cross-examination of D.W.1, extracted

in page Nos.6 and 7 of the judgment, the trial Court observed that

the plaintiff made construction of the building within the area

owned by it and there is no complaint from the neighbours or

anybody. The trial Court relied upon a decision reported in

3 ACES, HYDERABAD's case (supra) in which it was held that if

the deviations made during the construction are not in public interest

or cause public nuisance or are hazardous or dangerous to public

safety including the residents there in and are minor, minimal or

trivial, which do not effect public at large, the Corporation will not

resort to demolition. The trial Court further observed that the main

objection of the defendant is that though the plaintiff obtained two

sanctioned plans, it constructed one multistoried building and that

itself cannot be considered as violation. The trial Court also

observed that the construction of the building was in accordance

with the sanctioned plan and thus it need not prefer an appeal

against the notice issued by the Board as the plaintiff filed only

suit for injunction simplicitor, it is maintainable and accordingly

granted permanent injunction.

9. Aggrieved by the above judgment, the defendant preferred an

appeal vide A.S.No.120 of 2005 and the appellate Court confirmed

the judgment of the trial Court on the ground that constructions

are not illegal and as per the sanctioned plans and that the

constructions are not in the public property and no nuisance was

caused to the public and no complaints were given by the public.

The appellate Court also observed that regularization can be done

by collecting compound fee as per the decision reported in 3 ACES,

HYDERABAD's case (supra). Aggrieved by the said judgment, the

defendant preferred this appeal.

10. The substantial question of law before this Court would be:

(1) Whether the plaintiff can approach this Court without preferring appeal before the Appellate Authority as per Section 274 of the Act of 1924?

2) Whether there are deviations and violations in constructing the building and thus Secunderabad Cantonment Board can demolish the structures?

11. A Cantonment Board is a civic administration body in India

under control of the Ministry of Defence. The board comprises

elected members besides ex-officio and nominated members as per

the Cantonments Act, 2006. The Board is bound by the provisions

of the Act of 1924, which was amended subsequently. Mrs.Sharada

Srinivas and Mrs.Ranjani Rangarajan were the joint owners of the

suit schedule property, entered into Development Agreement with

the plaintiff company and also executed general power of attorney

in favour of the plaintiff company. They obtained ULC from the

Ministry of Defence on 25.08.1980 and also obtained sanctioned

plans separately vide Cantonment Board Resolution No.28(4) and

40 dated 04.12.1995. The plaintiff company filed a suit for

permanent injunction.

11. The case of the appellant/defendant is that the plaintiff

company obtained two separate sanctioned plans, but constructed

one residential complex by clubbing two sanctioned plans and it

amounts to deviation from the original sanctioned plan. It is its

further case that when the construction was in progress, it issued

a notice and raised an objection. The plaintiff constructed RCC

columns in the setback area and that the stilt floor was

constructed unauthorisedly without any sanction, and thus, the

same is to be treated as unauthorized construction and the owners

are guilty of committing an offence under Section 184 of the Act of

1924. Therefore, the appellant/defendant issued a preliminary

show cause notice on 06.11.1996 to demolish the unauthorized

constructions. When the plaintiff failed to oblige the same after

resolution dated 26.11.1996, the appellant/defendant issued

another show cause notice dated 09.12.1996 under Section 185 of

the Act of 1924. The crux of the contention of the

appellant/defendant is that against the above said show cause

notice, the plaintiff has to prefer an appeal before the Competent

Authority under Section 274 of the Act of 1924, but it failed to do

so.

12. It is apposite to extract Section 274 of the Act of 1924, which

reads as under:

'274. Appeals from executive orders.--(1) Any person aggrieved by any order described in the third column of Sch.V may appeal to the authority specified in that behalf in the fourth column of the said schedule.

(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 provision of the Limitation Act, 1963 (36 of 1963), with respect to the computation of periods of limitation thereunder.'

13. As per Section 276 of the Act of 1924, on the admission of an

appeal, all the proceedings to enforce the order and all prosecutions

of any contravention thereof shall be held in abeyance and as per

Section 278 of the Act of 1924, every order of the appellate

Authority shall be final. If at all the plaintiff approached the

appellate Authority provided under the Act of 1924, the

appellant/defendant should have suspended the show cause

notice issued under Section 185 of the Act of 1924 after giving due

opportunity to the plaintiff. But the plaintiff, despite receipt of the

said show cause notice, did not give any reply and did not avail the

remedy of appeal under Section 274 of the Act of 1924, instead it

approached the Civil Court for permanent injunction. The

appellant/defendant in its written statement itself raised the above

issue before the trial Court, but the trial Court misinterpreted the

facts and section of law and held that the suit filed by the plaintiff

is maintainable.

Admittedly, there are deviations in the construction of the

building. P.W.1 during his cross-examination clearly admitted that

he made construction by clubbing two separate sanctioned plans.

Defendant accorded sanction for ground, first and second floors,

but he constructed cellar, ground plus three floors. Stilt

permission was accorded for parking purpose, but he constructed

cellar. In fact, stilt floor above the cellar floor was significantly

converted to regular floor. He failed to maintain FSI as per sanction

accorded by the Board. He also admitted that there is no sanction

for construction of cellar and third floors. He added that he

addressed a letter dated 04.03.1997 to grant permission for cellar,

but he did not receive any reply from the Board. He has not issued

commencement notice, not obtained plinth checking certificate and

not obtained completion certificate.

14. D.W.1 was the Supervisor of the appellant/defendant Board,

who deposed that a residential complex was constructed by

clubbing two different sanctioned plans. The plaintiff violated the

sanctioned plan by not maintaining the FSI 0.5 as per the sanction

accorded by the Board and it failed to maintain setbacks and

constructed RCC columns and common areas are encroached. The

plaintiff made cellar unauthorisedly and violated the sanctioned

plan by constructing the cellar and third floor unauthorisedly. The

plaintiff failed to submit any notice prior to the commencement

and failed to obtain any plinth checking certificates from the

Board. The plaintiff also constructed additional floors without

there being any sanction. The plaintiff did not stop construction

activities even after issuance of the preliminary show cause notice

and show cause notice and proceeded with the construction

unauthorisedly. In the notice issued under Section 185(1) of the

Act of 1924, the plaintiff was directed to remove the unauthorized

construction within thirty days and it has not preferred any appeal

provided under Section 274 of the Act of 1924 and willfully failed

to avail the remedy available under the statute, and thus it clearly

violated the building byelaws of the appellant-defendant and the

unauthorized construction cannot be compounded and it cannot

be regularized and that the plaintiff not even given completion

notice of the construction to the appellant-defendant. D.W.1 gave

report under Ex.B1. Basing on the said report, show cause notice

was issued under Ex.B2 and notice under Section 185(1) was

issued under Ex.B3 along with sanctioned building plan under

Ex.B4. D.W.1 worked in the said place till the middle of 1997 and

later one Mr.Iqbal was posted as incharge of the suit schedule

area.

15. Learned counsel for the appellant-defendant relied upon

case law reported in FRIENDS COLONY DEVELOOPMENT

COMMITTEE V/s. STATE OF ORISSA2 holding to the effect that

stringent actions by ruthlessly demolishing illegal constructions and

non-compoundable deviations is necessary. Unwary purchasers of

such buildings to be compensated. In DIPAK KUMAR

MUKHERJEE V/s. KOLKATA MUNICIPAL CORPORATION3, the

Hon'ble Apex Court held that illegal and unauthorized constructions

of buildings and other structures not only violate the municipal laws

and the concept of planned development of the particular area but

also affect various fundamental and constitutional rights of other

persons. The failure of the State apparatus to take prompt action to

demolish such illegal constructions has convinced the citizens that

AIR 2005 SUPREME COURT 1

AIR 2013 SUPREME COURT 927

planning laws are enforced only against poor and all compromises

are made by the State machinery when it is required to deal with

those who have money power or unholy nexus with the power

corridors. The builder conveniently walks away having pocketed the

money leaving behind the unfortunate occupants to face the music in

the event of unauthorized constructions being detected or exposed

and threatened with demolition. The unwary purchasers who shall

be the sufferers must be adequately compensated by the builder.

16. The plaintiff cannot justify his action on the ground that the

owners are joint owners and previously they have single

construction and as such though there are two separate

sanctioned plans, it can construct one multistoried residential

complex by clubbing both the plans. Merely because it entered into

a Development Agreement with the joint owners, it cannot alter the

sanctioned plans according to its convenience. In the process of

altering the sanctioned plans, it made several violations, it is

amply established by oral evidence of P.W.1 and D.W.1, and thus,

the appellant-defendant issued show cause notice directing it to

remove the unauthorized constructions. Instead of obliging the

same, the plaintiff proceeded with construction and also obtained

interim order from the civil Court without preferring an appeal

before the Appellate Authority under the Act of 1924. The plaintiff

stated that under Ex.A6 it addressed a letter to the appellant-

defendant to regularize the plan. In the said notice, the plaintiff

stated that on commencement of the construction its Engineer

advised it to join both the buildings together to provide more

spacious living areas and to save the costs considerably, and thus

it extended the slab, beams and columns slightly in to the setback

area. It further states that excavation for foundation it was

observed by the Engineer that the soil was extremely loose and not

conducive for foundation and since the neighbouring plot is lower

by about eight feet, the Engineer advised it to completely excavate

the property to avoid any structural problems and danger to the

building, and as such, the plaintiff requested for regularization of

the plans.

17. To the notice issued under Section 185 of the Act of 1924 on

09.12.1996, there is no date mentioned on the reply notice given

by the plaintiff, but the Secunderabad Cantonment Board received

it on 04.05.1997. The plaintiff filed the subject suit seeking

permanent injunction was on 30.04.1997. The argument of the

plaintiff is that in spite of issuance of reply notice under Ex.A6, the

appellant-defendant has not regularized the plan cannot be

countenanced as the plaintiff not only violated the sanctioned plan

but also made several deviations by discarding the show cause

notice. The appellant-defendant would contend that the plaintiff is

not the owner of the property and it is only a General Power of

Attorney Holder, but admittedly the joint owners of the suit

schedule property executed the General Power of Attorney in

favour of the plaintiff and authorized it to represent in any Court

cases and as such it cannot be said that the plaintiff is not

authorized to represent the true owners.

Section 273 notice under the Act of 1924 is on par with

Section 80 notice under CPC. It is argued by the learned counsel

for the appellant that without any proper reason, the said notice

was dispensed with, of course Board contested the injunction suit

and thus non-issuance of notice prior to the filing of plaintiff's suit

is not prejudicial to the rights of the Board. As per the judgment of

the Hon'ble Apex Court in SMT.HAANNURAMMABAI KALAL

(DECEASED) BY L.R. V/s. CANTONMENT BOARD, BELGAUM4, it

was held that the requirement of notice before instituting the suit is

not required where the relief sought is an injunction, and thus it

cannot be held as fatal to the suit.

18. During the course of arguments, learned counsel for the

appellant-defendant would submit that now the illegality

committed by the plaintiff cannot be compounded and the cellar

portion is to be kept only for parking purpose and the

unauthorized construction in the third floor is to be pulled down.

19. No doubt, the prospective purchasers who purchased the

property from the developer and residing in it from 1997 onwards

will sustain loss for no fault of them. Therefore, the said flat

owners are entitled for refund of the amount whatever they paid

towards purchase of flats along with interest from the builder.

20. On the above analysis, this second appeal is allowed. The

judgment and decree dated 15.07.2010 in A.S.No.126 of 2005 on

the file of the Court of the XX Additional Chief Judge, City Civil

Court, Secunderabad, and the judgment and decree dated

17.02.2005 in O.S.No.162 of 1997 on the file of the learned III

Senior Civil Judge, City Civil Court, Secunderabad, are hereby set

aside. There shall be no order as to costs.

2007 SCC OnLine Kar 416

21. Pending miscellaneous petitions, if any, shall also stand

closed in the light of this final judgment.

____________________ P.SREE SUDHA, J.

28th JANUARY, 2022.

PGS