Cantonment Board, Bareilly and Another vs Jhankar Singh Yadav

O.P. Srivastava, J.—This is defendants second appeal against the judgment and decree dated 25.8.1988 passed by the 5th Additional District Judge, Bareilly whereby the first appeal of the defendant appellant was dismissed as not maintainable.

The plaintiff respondent was in the employment of the defendantappellant, Cantonment Board, Bareilly. Being aggrieved of an action of the defendant appellant Jhankar Singh Yadav filed a suit for permanent injunction restraining the defendant appellant from interfering in the working of the plaintiff respondents as Sanitary Inspector. The suit was contested. The trial Court after framing the issues arising out of the pleading of the parties and after considering the matter and evidence, decreed the suit.

The defendant appellant preferred the appeal before the District Judge, Bareilly, which was heard and decided by the learned 5th Additional District Judge. The appeal was dismissed on the ground that the same was not maintainable for the reason that the appeal was preferred without proper resolution of the Board. The learned first appellate Court did not go into other questions. It is against the said judgment and decree passed by the first appellate Court, the defendantappellant has come up in second appeal before this Court.

This appeal was admitted only on the following substantial question of law:

�Whether the appeal filed on behalf of the Cantonment Board, Bareilly in absence of any resolution of the Board was competent.�

The learned counsel for the appellant although admitted that initially the appeal was filed by the Executive Officer but argued that as later vakalatnama duly signed by the President was filed, defect, if any, in filing the appeal stood cured. In support of his contention he cited the decision in Shastri Yagnapur Das Ji v. Muldas Bhundaradas Vatshva and another, AIR 1966 SC 1119. He further argued that under Section 25 of the Cantonment Board Act, 1924 (hereinafter referred to as Act) the Executive Officer could file this appeal without resolution of the Board.

As against this the learned counsel for the respondents urged that according to Section 11 of the Cantonment Board Act, 1924, the Cantonment Board can sue and be sued in the name of the Board and that the matter of filing the appeal in a case is not covered by special power of the Executive Officer under Section 25 of the Act. He vehemently argued that unless there was a resolution of the Board to the effect that the appeal be filed, it was not within the competence of the Executive Officer or for that matter of the President alone to have filed the appeal. In support of his argument he also cited decision in Municipal Committee Bhatinda v. Sadhu Singh, AIR 1986 Punjab and Hariyana 294. The learned counsel argued that the defect in filing the appeal without the resolution of the Board cannot cure the defect even by a subsequent resolution as held in Secretary, Notified Area Committee v. Kedar Nath and others, AIR 1952 Lahore 388.

I have carefully gone through the relevant provisions of the Act, the judgment of the first appellate Court and the authorities relied upon on the either side.

As it appears from the judgment of the trial Court, the plaintiff respondents was appointed in the Cantonment Board on 4.1.1960 and after promotion to various posts, he was appointed as Sanitary Inspector vide resolution dated 28.6.1971. The plaintiff had filed the suit against the Board restraining them from interfering in plaintiff working as Sanitary Inspector.

Section 11 of the Act runs as follows:

�11.INCORPORATION OF CANTONMENT BOARD: Every Board, shall by the name of the place by reference to which the cantonment is known, be a body corporate having perpetual succession and a cantonment seal with power to acquire and hold property both moveable and immovable and to contract and shall, by the said name, sue and be sued.�

Section 11 provides that it is the Board which can and be sued in respect of the matter covered by the above provision. The matter of the plaintiff, who was appointed on the post in question by resolution of Board was covered by the above provision. Therefore it was the Cantonment Board which had power to file appeal against the decree of trial Court againat it but no resolution was passed by the Board taking the decision to file appeal.

The contention of the learned counsel is that under Section 25 of the Act Executive Officer has the power to file the appeal. Section 25 of the Act deals with the special power of the Executive Officer.

To facilitate the examination of this contention raised on behalf of the appellant, Section 25 of the Act, is extracted below.

�25. Special Power of the Executive Officer: The Executive Officer may, in cases of emergency, direct the execution of any work or the doing of any act which would ordinarily require the sanction of the �[Board]� and the immediate execution or doing of which is, in his opinion, necessary for the service or safety of the public, and may direct that the expense of executing such work or doing such act shall be paid from the cantonment fund. Provided that:

(a) he shall not act under this section without the previous sanction of the President or, in his absence, of the VicePresident.

(b) He shall not act under this section in contravention of any order of the �[Board]� prohibiting the execution of any particular work or the doing of any particular act; and

(c) He shall report forthwith the action taken under this section and the reasons therefore to the �[Board]�.

From the above provision it is clear that the Executive Officer has been authorized to take action in the case of emergency in regard to the immediate execution or doing of certain things as indicated in the section without necessary sanction of the Board.

Now, the question is whether the matter of filing of the appeal against the judgment of the trial court against the Board falls within the ambit of Section 25 of the Act or not. In my opinion, before filing of an appeal a conscious decision has to be taken by the Board by resolution. Filing of appeal is not covered by administrative function of the Executive Officer Section 25 of the Act gives only certain administrative powers to the Executive Officer under emergency. For filing the appeal, the matter has to be gone into and proper application of mind is necessary to the effect whether or not decree should be complied with or should be challenged in higher Court by filing an appeal. There is a limitation prescribed for filing an appeal and also for any given satisfactory reason, delay in filing the appeal can be condoned by the Court. Thus, firstly, neither the filing of appeal is so emergent matter as to attract Section 25 and secondly to me filing of the appeal does not fall within the administrative power of the Executive Officer covered by Section 25 of the Act. The Punjab and Hariyana High Court in Municipal Committee Bhatinda v. Sadhu Singh (supra) has observed that decision to file appeal on behalf of the Municipal Committee is not an administrative function and so the decision had to be taken by the Municipal Committee itself. The said principle of law is applicable to the case covered by the Act. Thus, I do not find any force in the argument of the learned counsel for the appellant that the Executive Officer could file appeal without the resolution of the Board.

The learned counsel for the appellant further argued that the appeal which was not competent at the time of institution, became competent by filing of the Vakalatnama by the President of the Board. However, the learned counsel could not show that there is provision in the Act to the effect that the President in individual capacity can take decision in the matter of filing the appeal. The plaintiff respondent was appointed by the Board. The decree was against the Board and therefore, only Board could decide by resolution whether appeal be filed or not. There is nothing on record even to show that the Board had ever delegated any power to the President in this regard. The decision in Shastri Yagnapurs Das Ji v. Muldas Bhundaradas Vaishva and another (supra) is not applicable to the facts of the case. In the said case since Vakalatnama was not signed by the proper person, the appeal was held to become competent after the Vakalatnama duly signed by proper person was filed. The matter in hand is entirely different from that. It is not a matter of filing the Vakalatnama by the competent person but of taking decision of filing the appeal which was possible only after proper decision of the Cantonment Board. Since the President was not authorized to file Vakalatnama without the resolution of the Board or to take decision in regard to the filing of the appeal, filing of the Vakalatnama by the President did not cure defect in filing the appeal. I, therefore, do not find any substance in this contention of the learned counsel for the appellant. The resolution of the Board was necessary before filing of the appeal.

In Municipal Committee case (supra) it has been held that in absence of the resolution the appeal by the Municipal Board is not competent. The same principle applies to the cases under the Cantonment Board Act also. Since it is the Board which has to take a conscious decision before the appeal is filed against the judgment and decree passed against it. The appeal is not competent in absence of any such resolution. The learned counsel could not show that any resolution was passed at any point of time i.e. either before or even after the filing of the first appeal by the Board to the effect that the appeal be filed. In this view of the matter, I am of the opinion that the first appellate Court did not commit any error in holding that the appeal was not maintainable.

Since there was no resolution of the Board for filing the appeal till its disposal, there is no need of going into the question whether resolution subsequent of filing of appeal could cure the initial defect in filing of the appeal.

In result appeal fails and has to be dismissed.

The appeal is dismissed with cost.

(Appeal dismissed)