Taru Rani Choudhary vs Cantonment Board, Dinapore and Others

M.P. Varma, J.—Since there were two appeals in the court below filed by two different sets of the defendants, these two appeals have been filed in this Court against the one and the same judgment, and this judgment will govern both the appeals, filed in this Court.

The suit was for a declaration that the defendants have no right to demolish any portion of the construction over holding No. 80 (old No. 79), Mahal No. 4 in Ward No. 5 within Dinapore Cantonment Board and for permanently restraining the Cantonment Board, Dinapore (defendant No. 1) and the Executive Officer of the said Board (defendant No. 2) from demolishing the construction.

Briefly stated the plaintiff instituted the suit against the defendants alleging that she is the absolute owner of the suit house through purchase and as some of the portions of the said house were in dilapidated condition she got them thoroughly repaired. The Dinapore Municipal Board had served notice on the plaintiff for demolition. At the instance of the plaintiff the Cantonment Board recommended for regularisation of the alleged offence in payment of Rs. 50/- as compensation fee. The said resolution of defendant 1 was forwarded to defendant No. 3, the Military Estate Officer for onward transmission but instead defendant No. 5 asked the plaintiff under instruction for defendant No. 5 to submit a registered acknowledgment deed admitting Government''s title over the land comprising the suit house. On refusal by plaintiff the above recommendation of the Board was turned down and another notice for demolition was issued which was challenged as illegal by the plaintiff through the present suit.

In the suit the plaintiff impleaded five defendants, who were Cantonment Board (defendant No. 1) Sri M.K. Sen Gupta, Cantonment Executive Officer (defendant No. 2) Sri A. Fanseca, Military Estate Officer (defendant No. 3), Dy. Director of Military Lands Cantonment, Central Command, Lucknow Cantonment (defendant No. 4) and the Union of India, Ministry of Defence, New Delhi (defendant No. 5).

The lower appellate court has disposed of the appeals on one question alone, namely, the application of the rigours of Section 80 of the CPC (hereinafter referred to as ''the Code'').

A plain look at the averments in the plaint clearly indicates that the relief sought are mainly against defendants Nos. l and 2, i. e. the Cantonment Board and the Executive Officer of the Board. The learned Court below on application of the provisions of Section 80 of the Code dismissed the suit. It has rejected the whole plaint on that count by a reference to a Bench decision of this Hon''ble Court in the case of The State of Bihar and Another Vs. Jiwan Das Arya, I have examined the said decision, which lays down that Section 80 of the Code consists of two parts, one with regard to the institution of the suit against the Government and the other against the public officers. It also lays down that inhibition contained in the section as to the institution of the suit against the Government is unqualified and in that view of the matter, I am in full agreement with the submission advanced by Sri Aftab Alam, appearing for the Union that on the findings of the lower appellate court the plaint has to be rejected as against the Union of India (defendant No. 5). The contention of Sri Radha Raman appearing for the plaintiff is therefore not tenable.

But the question which falls in for our consideration is whether on that account, the plaintiff should be non-suited altogether. The same said Bench decision has also laid down that in a suit filed against a public officer, notice is mandatory only when it is in respect of any act purporting to be done by such public officer in his official capacity. If the act is not one purporting to be done by such public officer in his official capacity, no such notice is necessary. Section 273 of the Cantonments Act provides for a notice before instituting such a suit against the Cantonment Board or its officers and the language of the section is in pari materia with the provisions contained in Section 80 of the Code relating to the suit against public officers, which makes the notice mandatory only if the suit is intended to be filed in respect of any act purporting to be done by such public officer in his official capacity. Applying the said ratio to the facts giving rise to the present appeals, there is no doubt that the plaintiff has alleged illegal threatened action against her by the officers of the Board in taking steps for demolition of the construction raised by her. As it appears from the suit that entire relief claimed therein is against the defendants 1 and 2, who are the Cantonment Board and the Executive Officer, as indicated above, the bar against institution of the suit against them is not unqualified either by application to provisions contained in Section 80 of the Code or those contained in Section 273 of the Cantonment Act. Defendants 4 and 5 in my opinion, for the purpose of the suit are nominal parties and as it appears from the plaint itself, the main relief is sought against defendants 1 and 2 only. Either of the two sections referred to does not constitute absolute bar as discussed above and hence, I hope that the court below cannot reject the whole plaint on the hypothesis that the provisions of Section 80 (2nd part) of the Code and those of Section 273 of the Cantonment Act has constituted absolute bar.

The lower appellate court has misconstrued the law laid down in the Bench decision aforesaid and has fallen into error on that wrong assumption, which was never laid down therein. However, it could only reject the plaint as against the Union of India.

In the result, the findings of the lower appellate Court rejecting the whole plaint, as aforesaid are set aside, the appeal is allowed in part and the same is remanded for fresh disposal as regards defendants Nos. l and 4 are concerned, in accordance with law. In view of the special situation arising in the case on account of the interpretation of law laid down by this Court, I do not propose to pass orders for costs. Appeal allowed in part.

S. Ali Ahmad, J.

I agree to the order passed.