B.AMIT STHALEKAR,J. - (1.) The appellant in the second appeal is the Cantonment Board, Kanpur and has laid challenge to the judgement and decree of the I Addl. Sessions Judge, Kanpur dated 18.1.1993 dismissing the first appeal No. 650 of 1989 (Cantonment Board v. Smt. Shakuntala Devi) arising out of original suit no. 277 of 1977 .
(2.) Briefly stated the facts of the case are that the respondents were granted lease of House No. 35, Cariappa Road, Cantonment Board, Kanpur. The original suit no. 277 of 1977 was filed by the Cantonment Board, Kanpur for permanent injunction restraining the respondents from making unauthorised construction in the said premises. It was stated that the Area Overseer had submitted a report that the respondents had collected construction material and were going to lay foundation and make construction in the said premises in an unauthorised manner. The case was contested by the then respondents no. 1 and 2. Two written statements were filed by the respondents and it was denied that any unauthorised construction was being made by them in the premises i.e. House No. 35 Cariappa Road, Kanpur. What was stated was that they were only carrying out maintenance and repairs and whatever construction was being made was being made in an authorised manner. It was denied that the existing construction had been demolished and thereafter new construction was being carried out. The case of the defendant-respondents was that the Cantonment Board had itself written to them on 31.5.1965 that the said House No. 35 was not in a habitable condition and that its condition was deteriorating day by day and a part of it had also fallen, as a result of which the defendant-respondents had no other place to go. Considering all these facts the respondents then submitted an application under Schedule V in reply to the notice given by the Board under section 185 of the Cantonment Act, 1924 (the Act, 1924) to stop erection or re-erection. There were also talks between the Cantonment Board-lessor and the respondents-lessee. The respondent no. 2 in her written statement stated that she has carried out repairs in the building within her own rights and in accordance with law, information of which along with Map/Plan was also submitted to the Cantonment Board on 24.3.1969 but the Cantonment Board did not thereafter give any information to the lessee respondents as to whether the Plan had been sanctioned or not and, therefore, on the expiry of 15 days from the submission of the Plan there was a deemed presumption that the Plan had been sanctioned. It is stated that sub section (6) of Section 181 of the Act, 1924 provides that where the Board neglects or omits for one month after a receipt of a valid notice calling the attention of the Board to deliver to the person who has given the notice any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or re erection, as the case may be, unconditionally. In spite of this the respondents, to avoid any litigation deposited a sum of Rs. 10,000/- with the Cantonment Board on 30.7.1984 through Bank Draft No. 727202 towards compounding charges in terms of the Cantonment Board resolution dated 11.5.1984. The respondent no. 2 in her written statement made a counter claim for a declaration that sanction be deemed to have been granted by virtue of sub section (6) of Section 181 of the Act, 1924 and the construction made in the House No. 35 Cariappa Road, Cantt. Kanpur should be deemed to be as per Rules and Regulations of the Cantonment Act, 1924 and the construction should be deemed to have been regularised by the plaintiff Cantonment Board as per the Plan submitted and the plaintiff's resolution no. 11 dated 11.5.1984. Further relief of declaration was sought declaring that the plaintiff has no authority whatsoever to issue any notice of demolition of the building No.35 Cariappa Road, Cantt. Kanpur. The trial court framed following 7 issues:- (i) whether the respondent has any authority to make construction in the premises in question without sanction of the competent authority; (ii) whether the suit was maintainable; (iii) whether the suit was barred by limitation; (iv) whether the plaintiff is entitled to any relief and if so, what; (v) whether the Plan submitted by the respondents on 24.3.1969 would be deemed to have been sanctioned; (vi) whether the plaintiff vide its resolution dated 11.5.1984 has compounded the construction made by the respondents; (vii) whether the respondent no. 2 is entitled to any relief as claimed by him in his counter claim.
(3.) On behalf of the plaintiff one John Robert appeared as P.W. 1 and stated that he was the Overseer of the Board since 1964 and he had seen unauthorised construction being carried out in House No. 35 Cariappa Road and, therefore, he submitted his report in writing. In cross examination this witness admitted that on 24.3.1969, the respondents had submitted a Plan to the Cantonment Board which was duly received in the Cantonment Board though he denied having any knowledge whether any reminder was submitted by the respondents defendant on 26.7.1969. This witness further admitted that the Plan was forwarded to the Military Estate Officer (M.E.O) which was returned on 13.6.1969 and information of this was also given to the defendant. It was stated that this information was sent through Form B. This witness further stated that in column 12 of Form B there is a mention that the defendant respondent had submitted a reminder on 26.7.1969 under sub-section (6) of Section 181 of the Cantonment Act, 1924 which was received in the Cantonment Board on 29.6.1969. The witness further stated that in this Form B there is nowhere any mention that the Plan had been returned to the defendant respondents or on what date it had been returned. The witness also stated that there is a practise that Plan which are accepted are duly returned to the authority concerned and, therefore, he is presuming that the Plan was returned to the defendant. He also stated that the Map/Plan was returned to the defendant respondents and the signature of the daughter of the defendant respondent was taken in the Peon Book. This witness also admitted that the constructions made by the defendant respondent had been compounded and compounding fee of Rs. 10,000/- had been deposited by the defendant. The witness also admitted that in column 11 of Form B which requires the date of return of map to be mentioned, no date has been mentioned and this column is blank. The witness also admitted that the construction was made by the defendants strictly as per the construction Bye laws. He also admitted that in the Map/Plan it has been mentioned anywhere that it has been rejected and is, therefore, being returned to the defendant.;