# Cantonment Board, Agra v. Smt. Pushpa Rani Gupta & Ors

- **Citation:** (2020) 9 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-26
- **Case number:** Second Appeal No. 904 of 2003
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/cantonment-board-agra-v-smt-pushpa-rani-gupta-ors-45933
- **Pages:** 23

## Headnote

--

Right of erecting or re-erecting the
constructions in a cantonment area-solely
conferred by statute-strictly regulatedcivil court simply ousted-Court below
acted in excess of its jurisdiction.

Held, The plaintiffs respondents did not contest
the proceedings on merit, by showing cause to
the competent authority. The suit was brought
even while the adjudication proceeding before
the competent authority, was pending. No final
order of demolition, or any final decision on the
unauthorized constructions, was rendered by
the competent authority in the said proceedings.
(Para 83)

The institution of the suit was clearly to
preempt, and prevent adjudication by the
9 All. Cantonment Board, Agra Vs. Smt. Pushpa Rani Gupta & Ors.
233
competent authority in law. The suit was
prematurely filed. (Para 84)

By injuncting defendant no. 1 -appellant from
demolishing the construction in dispute,the
learned courts below have illegally imposed a
prior restraint upon the authorities.(para 85)
(E-9)

Cases referred: -

## Text

_Characters 0–39,900 of 76,503. This is a partial read: ask again with offset=39900 for what follows._

232 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Looking to the history of Section 14,
we find that initially it provided a period of
three years from the date of marriage. It was
amended in 1976 and period of three years was
reduced to one year. Proviso to Section 14 is
intended to relax one year's limit though in very
exceptional cases. It, however, enables Court to
exercise discretion to grant leave to present such
petition before expiry of one year's limit in case
of exceptional hardship to petitioner or
exceptional depravity of respondent. Court
while considering application to grant leave for
entertaining application within one year, must
not act in a casual pedantic manner but should
look into the objective, intention and spirit of
Legislation. In deciding an application to leave,
no elaborate enquiry is required. It does not
require to be considered as a preliminary trial.
In our view, Court in exercise of discretion to
grant leave, should take into consideration the
petition and objection, if any.

13. In the present case, application
was filed by both the parties and there was
no objection. It is not the case that any fact
was concealed by parties or whatever they
had stated in the application was incorrect.
In these facts and circumstances, the
manner in which application has been dealt
with by Court below, appears to be unfair,
illegal and unreasonable. In fact, from the
order which we have quoted above, we
could not discern any application of mind
and valid reason on the part of Court below
for declining to grant leave.

14. The point for determination,
formulated above, therefore, is answered in
favour of appellant. Impugned judgment
and order dated 10.05.2019 is accordingly
held unsustainable.

15. In the result, appeal is allowed.
Judgment and order dated 10.05.2019
passed by Principal Judge, Family Court,
Ghaziabad in Petition No 188 of 2019 is
hereby set aside.

16. Matter is remanded to Family
Court to reconsider application dated
09.05.2019 and pass appropriate order in
the light of discussions made above and in
accordance with law, expeditiously.

17. No costs.
----------
(2020)09ILR A232
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2020

BEFORE
THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 904 of 2003

Cantonment Board, Agra ...Appellant
Versus
Smt. Pushpa Rani Gupta & Ors.
 ...Respondents

Counsel for the Appellant:
Sri C.B. Gupta

Counsel for the Respondents:
--

Right of erecting or re-erecting the
constructions in a cantonment area-solely
conferred by statute-strictly regulatedcivil court simply ousted-Court below
acted in excess of its jurisdiction.

Held, The plaintiffs respondents did not contest
the proceedings on merit, by showing cause to
the competent authority. The suit was brought
even while the adjudication proceeding before
the competent authority, was pending. No final
order of demolition, or any final decision on the
unauthorized constructions, was rendered by
the competent authority in the said proceedings.
(Para 83)

The institution of the suit was clearly to
preempt, and prevent adjudication by the
9 All. Cantonment Board, Agra Vs. Smt. Pushpa Rani Gupta & Ors.
233
competent authority in law. The suit was
prematurely filed. (Para 84)

By injuncting defendant no. 1 -appellant from
demolishing the construction in dispute,the
learned courts below have illegally imposed a
prior restraint upon the authorities.(para 85)
(E-9)

Cases referred: -

1. Dhulabhai Vs St. of M.P. & ors., reported at
AIR 1969 SC 78

2. Munshi Ram & ors. Vs Municipal Committee,
Chheharta reported at 1979 (3) SCR 463

3.Raja Ram Kumar Bhargava (dead) by L.Rs. Vs
U.O.I. reported at AIR 1988 SC 752

4.Atul Kumar Jain Vs Cantonment Board, Meerut
Cantt reported at 2007 (3) ALJ 282

5.Premier
Automobiles
Ltd.
Vs
Kamlekar
Shantaram Wadke of Bombay & ors. reported at
1976 (1) SCC 496,

6. Municipal Committee, Montgomery Vs Master
Sant Singh reported at AIR 1940 Lah 377

7.State of Kerala Vs N. Ramaswami Iyer & Sons
reported at AIR 1966 SC 1738

8.Vajesingji
Joravarsingji
Nayak
vs
The
Secretary of State For India, reported at AIR
1924 PC 21.

9. Raja Rajinder Chand Vs Sukhi,reported at AIR
1957 SC 286.

10. Haryana Vs Raghubir Dayal, (1995) 1 SCC 133

11. N.K. Chauhan Vs St. of Gujarat & ors.,
(1977) 1 SCC 308

12.P.T. Rajan Vs T.P.M. Sahir & ors., (2003) 8
SCC 498

13. Sharif Ud Din Vs Abdul Gani Lone, (1980) 1
SCC 403

14.Vikas Trivedi Vs St. of U.P. & ors., (2013) 2
UPLBEC 1193,
15.Karnal Improvement Trust, Karnal Vs Smt.
Parkash Wanti (Dead) & anr., (1995) 5 SCC 159

16. St. of Haryana Vs P.C. Wadhwa, IPS, 26
Inspector General of Police & anr., (1987) 2 SCC 602

17.Regional Provident Fund Commissioner Vs
K.T. Rolling Mills Pvt. Ltd. (1995) 1 SCC 181.

18. The Cantonment Board, Meerut Vs Chandra
Prakash Jain & ors., 1979 ALJ 1000.

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The instant second appeal arises out
of the judgment and decree dated 28.03.2003
entered by the learned Additional District and
Sessions Judge, Court No. 17, in Civil Appeal
No. 159 of 1999 (Cantonment Board, Agra
Cantt. Vs. Smt. Pushpa Rani Gupta and
Others), which has affirmed the judgment and
decree dated 29.04.1999, rendered by the
learned IInd Additional Civil Judge (Senior
Division), Agra, in Original Suit No. 1300 of
1984, Sri Chiman Lal (since deceased)
Through L.Rs. Vs. Cantonment Board, Agra
and Others), granting an injunction in favour
of the plaintiff.

2. This appeal has been instituted by
the Cantonment Board, Agra, arrayed as
defendant no. 1, in the Original Suit No.
1300 of 1984, Sri Chiman Lal (since
deceased) Through L.Rs. Vs. Cantonment
Board, Agra and others).

3. On orders passed by this Court on
05.03.2019 notices were issued to the
respondents, by ordinary process as well as
by RPAD. The service report on notice sent
by RPAD records, "neither undelivered
cover nor AD received back after service as
yet". The report of the process server
regarding
service
of
notice
upon
respondents 1 to 9, endorsed the remark
"refused to accept".
234 INDIAN LAW REPORTS ALLAHABAD SERIES

4. In view of the service reports
mentioned above, the service upon the
respondents is sufficient. No one has
appeared on behalf of respondent nos. 1 to
9, despite service of notices. The Court
proceeded to hear the matter on merits.

5. Civil action was brought by the
plaintiff, by instituting Original Suit No.
1300 of 1984, Sri Chiman Lal Gupta (since
deceased) through L.Rs. Vs Cantonment
Board, Agra and others before the learned
IInd
Additional
Civil
Judge
(Senior
Division), Agra. The plaintiff prayed for
permanently injuncting the defendant no.
1/Cantonment Board from demolishing or
damaging any part of the suit property. The
description of the property as given at the
foot of the plaint is, 90 Grand Parade Road,
Agra Cantt, Agra. The L.Rs. of the plaintiff
Chiman Lal (since deceased) were duly
substituted on 14.07.1987 in the court
below.

6. According to the plaint, the
plaintiff-respondents
sought
requisite
sanction from the competent authority of
the
Cantonment
Board,
Agra,
for
renovation and reconstruction
of the
disputed property. The sanction was not
granted by the competent authority. The
plaintiff, however, started reconstruction of
the disputed property. The defendant no. 1appellant took out proceedings under the
Cantonments Act, 1924 (as amended from
time to time) against the plaintiffs, for
erecting
constructions/re-erection
of
constructions without requisite permission
from the competent authority under the
Cantonments Act, 1924 (as amended from
time to time). The defendant no. 1appellant
noticed
the
plaintiffs
on
05.12.1984, to show cause as to why the
newly
erected
constructions
be
not
demolished, for want of sanction and
having been made in violation of the
provisions of the Cantonments Act, 1924
(as amended from time to time). The cause
of action for the suit, according to the
plaint, arose when the defendant no.1appellant issued a notice dated 05.12.1984,
for
demolition
of
the
aforesaid
constructions raised by the plaintiffs on the
disputed property.

7. The defendant no. 1-appellant
entered a written statement in opposition to
the plaint. The written statement asserted
that the construction was unauthorised, and
was liable to be demolished under the
provisions of the Cantonments Act, 1924
(as amended from time to time). The
defendant no. 1-appellant took a specific
plea of lack of jurisdiction of the trial court.

8. According to the written statement,
the suit was premature since no demolition
order was passed against the appellants.

9. The Cantonment Board also took
out other notices dated 03.12.1984 (Paper
no. 66-ga) 04.12.1984, (Paper no. 68-ga),
05.12.1984 (Paper no. 11-ga, 11.12.1984
(Paper no. 75-ga) issued under Section 179
read with Section 184 of the Cantonments
Act, 1924 (as amended from time to time).
The notice dated 03.12.1984 directed the
plaintiff to show cause, as to why he should
not be prosecuted under Section 184 of the
Cantonments Act, 1924 (as amended from
time to time), and why action be not taken
for
demolition
of
the
unauthorised
constructions under Section 185 read with
Section 256 of the Cantonments Act, 1924
(as amended from time to time).

10. Various communications sent by
the Cantonment Board, (which are in the
record), required the plaintiff to furnish
information regarding the building plan in
9 All. Cantonment Board, Agra Vs. Smt. Pushpa Rani Gupta & Ors.
235
triplicate, together with one copy of tracing
cloth showing the plinth area of the
constructions. These communications also
reveal that the building plan submitted by
the appellant was rejected, and forwarded
to the Cantonment Board for formal
rejection.

11. The learned trial court in its
judgment
and
decree
entered
on
29.04.1999, found that the suit was not
barred, and the jurisdiction of the civil
court was not ousted. The suit was for an
injunction, to restrain the defendants from
demolishing the property in dispute. There
was no requirement to give any notice
under Section 273 of the Cantonments Act,
1924 (as amended from time to time).
Consequently failure to give any notice
under Section 273 of the Cantonments Act,
1924 (as amended from time to time) did
not vitiate the suit proceedings. By the said
judgment and decree the learned trial court
found for the plaintiffs/respondents, and
permanently injuncted the defendant no. 1appellant from demolishing the property in
dispute.

12. The defendant no. 1-appellant
took the judgment and decree of the learned
trial court in appeal, by instituting Civil
Appeal No. 159 of 1999 (Cantonment
Board, Agra Cantt. Vs Smt. Pushpa Rani
Gupta and others). The appellate court in its
judgment and decree dated 28.03.2003,
agreed with the findings of the learned trial
court, and held that the civil court was
possessed of the jurisdiction to try the suit.
The injunction granted in favour of the
plaintiff-respondents was upheld.

13. Sri C.B. Gupta, learned counsel
for the appellant contends that the suit was
premature, as no cause of action had arisen.
The notice under Section 179 read with
Section 184 and Section 185 of the
Cantonments Act, 1924 (as amended from
time to time), only required the plaintiff to
show cause on the issue of illegal
constructions. The competent authority did
not finally adjudicate the matter.

14. It is also submitted that the
Cantonments Act, 1924 (as amended from
time to time) is a complete code. The
jurisdiction of the trial court stands
impliedly barred in view of provisions of
Section 9 of CPC, read with the relevant
provisions of the Cantonments Act, 1924
(as amended from time to time).

15. Sri C.B. Gupta, learned counsel
for the appellant agrees, that following
substantial questions of law arise for
determination in the instant second appeal;

(I) Whether the learned courts
below lacked the jurisdiction to try the suit?
If yes, the consequences thereof ?

(II). Whether in view of the fact
that the plaintiff not replied to the show
cause notices issued by the competent
authority, under Section 179 read with
Section 184 and Section 185 of the
Cantonments Act, 1924 (as amended from
time to time), and the proceedings pursuant
to the show cause notices had not
culminated in any final order, the suit was
premature and was liable to be dismissed as
such and the learned courts below erred in
law by injuncting the defendant no.1appellant from demolishing or interfering
with the disputed construction ?

16. The facts found by the courts
below, which relevant to this appeal are
these.
Notices
dated
03.12.1984/04.12.1984,
05.12.1984
and
11.12.1984 under Section 179 read with
Section 184 and read with Section 185 of
236 INDIAN LAW REPORTS ALLAHABAD SERIES
the Cantonments Act, 1924 (as amended
from time to time) were issued to the
plaintiffs/respondents. The said notices,
required the plaintiffs-respondents to show
cause
against
acts
of
unauthorised
constructions
and
encroachment
of
cantonment lands.

17. Deemed approval of the building
plan was found in favour of the plaintiffsrespondents.
Pertinently
however,
the
rejection
application
of
the
plaintiffsrespondents for sanction of the building plan,
by
the
Cantonment
Board,
remained
undisputed.
The
other
notices
dated
03.12.1984 (Paper no. 66-ga) 04.12.1984,
(Paper no. 68-ga), 05.12.1984 (Paper no. 11ga, 11.12.1984 (Paper no. 75-ga) under the
like provisions of the Cantonments Act, 1924
(as amended from time to time), and bear the
same content are in the record. The notice
dated
04.12.1984
also
referenced
the
unauthorised constructions made on the
disputed premises, and recites the documents
relied upon by the Cantonment Board.

18. In this narrow compass of
established facts, the substantial questions
of law shall be decided.

19. The narrative will now be taken
forward with assistance of authorities, on
implied ouster of jurisdiction of civil courts.

20. Upon an exhaustive survey of
authorities holding the field, the Hon'ble
Supreme Court in Dhulabhai Vs State of
Madhya Pradesh and another, reported at
AIR 1969 SC 78, laid down the following
broad principles regarding the exclusion of
jurisdiction of the civil court:

" The result of this inquiry into
the diverse views expressed in this Court
may be stated as follows :-

(1) Where the statute gives a finality
to the orders of the special tribunals the Civil
Courts' jurisdiction must be held to be excluded
if there is adequate remedy to do what the Civil
Courts would normally do in a suit. Such
provision, however, does not exclude those
cases where the provisions of the particular Act
have not been complied with or the statutory
tribunal has not acted in conformity with the
fundamental principles of judicial procedure.

(2) Where there is an express bar of
the jurisdiction of the court, an examination of
the scheme of the particular Act to find the
adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to
sustain the jurisdiction of the civil court.

Where there is no express exclusion
the examination of the remedies and the scheme
of the particular Act to find out the intendment
becomes necessary and the result of the inquiry
may be decisive. In the latter case it is necessary
to see if the statute creates a special right or a
liability and provides for the determination of the
right or liability and further lays down that all
ques- tions about the said right and liability shall
be determined by the tribunals so constituted,
and whether remedies normally associated with
actions in Civil Courts are prescribed by the said
statute or not.

(3) Challenge to the provisions of
the particular Act as ultra vires cannot be
brought before Tribunals constituted under
that Act. Even the High Court cannot go
into that question on a revision or reference
from the decision of the Tribunals.

(4) When a provision is already
declared
unconstitutional.
or
the
constitutionality of any provision is to be
challenged, a suit is open. A writ of
certiorari may include a direction for
refund if the claim is clearly within the time
prescribed by the Limitation Act but it is
not a compulsory remedy to replace a suit.

(5) Where the particular Act
contains no machinery for refund' of tax
9 All. Cantonment Board, Agra Vs. Smt. Pushpa Rani Gupta & Ors.
237
collected in excess of constitutional limits
or illegally collected a suit lies.

(6) Questions of the correctness
of
the
assessment
apart
from
its
constitutionality are for. the decision of the
authorities and a civil suit does not lie if
the orders of the authorities are declared to
be final or there is an express prohibition in
the particular Act. In either case the
scheme of the particular Act must be
examined because it is a relevant enquiry.

(7)
An
exclusion
of
the
jurisdiction of the Civil Court is not readily
to be inferred unless the conditions above
set down apply."

21. Whether statutes providing for
specific remedies to be sought from a
particular forum in a prescribed manner
caused the ouster of jurisdiction of the civil
court, was posed for consideration before
the Hon'ble Supreme Court in Munshi
Ram
and
others
Vs
Municipal
Committee, Chheharta reported at 1979
(3) SCR 463. After considering the scheme
of the Punjab Municipal Act, in particular
Sections 84 and 86, which provide for
hearing and determination of objections to
the levy of provisional tax under the said
Act, law was laid down by the Hon'ble
Supreme Court in the following terms:

" From a conjoint reading of
Sections 84 and 86, it is plain that the
Municipal Act, gives a special and
particular remedy for the person aggrieved
by an assessment of tax under this Act,
irrespective of whether the grievance
relates to the rate or quantum of tax or the
principle of assessment. The Act further
provides a particular forum and a specific
mode of having this remedy which is
analogous to that provided in Section 66(2)
of the Indian Income tax Act, 1922 Section
86 forbids in clear terms the person
aggrieved by an assessment from seeking
his remedy in any other forum or in any
other manner than that provided in the
Municipal Act.

It is well-recognised that there a
Revenue Statute provides for a person
aggrieved by an assessment thereunder, a
particular remedy to be sought in a
particular forum, in a particular way, it
must be sought in a particular form in a
particular way it must be sought in that
form and in that manner, and all other
forums and modes of seeking it are
excluded. Construed in the light of this
principle, it is clear that Sections 84 and 86
of the Municipal Act bar, by inevitable
implication, the jurisdiction of the Civil
Court where the grievance of the party
relates to an assessment or the principle of
assessment: under this Act."

22. The rights created by the statute
and the existence of machinery for
enforcement of such rights, are germane
considerations in an enquiry into the issue
of implied ouster of jurisdiction of civil
courts, according to following holding of
the Hon'ble Supreme Court in Raja Ram
Kumar Bhargava (dead) by L.Rs. Vs
Union of India reported at AIR 1988 SC
752:

" Generally speaking the broad
guiding considerations with regard to
institution of suits are that wherever a
right, not pre-existing in common law, is
created by a statute and that statute itself
provides a machinery for the enforcement
of the right, both the right and the remedy
having been created uno-flatu and a finality
is intended to the result of the statutory
proceedings, then, even in the absence of
an exclusionary provision the civil courts'
jurisdiction is impliedly barred. If, however,
a right pre-existing in common law is
238 INDIAN LAW REPORTS ALLAHABAD SERIES
recognised by the statute and a new
statutory remedy for its enforcement
provided, with out expressly excluding the
Civil Courts' jurisdiction, then both the
common law and the statutory remedy
might become concurrent remedies leaving
open an element. Of election to the persons
of inherence."

23. This Court in Atul Kumar Jain
Vs Cantonment Board, Meerut Cantt
reported at 2007 (3) ALJ 282 held a suit
against the Cantoment authorities to be
incompetent, on account of existence of an
internal remedy of appeal provided by the
Cantonments Act, 1924 under Section 274,
by holding thus:

" As regards the bar of suit under
section 41(h) of the Specific Relief Act, it is
quite obvious that since service of notice
upon the appellant is held to be sufficient,
he had every opportunity and occasion to
file appeal as provided under section 274 of
the Cantonment Act and if he has not
availed of the said remedy before coming to
the Civil Court for the relief of permanent
injunction, the suit cannot be held to be
competent for the grant of such relief. The
findings recorded in this regard by the
Courts below are also wholly justified."

24. In Premier Automobiles Ltd. Vs
Kamlekar Shantaram Wadke of Bombay
and others reported at 1976 (1) SCC 496,
the jurisdiction of the civil court to
entertain
labour
disputes
arose
for
consideration, in the context of the rights
created and the remedies offered by the
Industrial Disputes Act. The Hon'ble
Supreme Court in Premier Automobiles
Ltd.
(supra)
relied
upon
the
well
established
and
cogently
enunciated
principles of law laid down by the English
courts:

" The decision of the House of
Lords in the case of Barraclough v. Brown
and other(1) is very much to the point. The
special statute under consideration there
gave a right to recover expenses in a court
of Summary Jurisdiction from a person who
was not otherwise liable at common law. It
was held that there was no right to come to
the High Court for a declaration that the
applicant had a right to recover the
expenses
in
a
court
of
Summary
Jurisdiction. He could take proceedings
only in the latter court. Lord Herschell
after referring to the right conferred under
the statue "to recover such expenses from
the owner of such vessel in a court of
summary Jurisdiction" said at page 620.

"I do not think the appellant can
claim to recover by virtue of the statute,
and at the same time insist upon doing so
by means other than those prescribed by
the statute which alone confers the right."

Lord Watson said at page 622:

"The right and the remedy are
given uno flatu, and the one cannot be
dissociated from the other."

In other words if a statute confers
a right and in the same breach provides for
a remedy for enforcement of such right the
remedy provided by the statute is an
exclusive one. But as noticed by Lord
Simonds in Cutler v. Wandsworth Stadium
Ltd. (supra) at page 408 from the earlier
English cases, the scope and purpose of a
statute and in particular for whose benefit
it is intended has got to be considered. If a
statute:

"intended to compel mine owners
to make due provision for the safety of the
man working in their mines, and the
persons for whose benefit all these rules
are to be enforced are the persons exposed
to danger,"

there arises at common law:
9 All. Cantonment Board, Agra Vs. Smt. Pushpa Rani Gupta & Ors.
239

"a co-relative right in those
persons who may be injured by its
contravention."

Such a type of case was under
consideration before Lord Goddard, C.J. in
the case of Solomons v. R. Gertzenstain Ltd.
and other vide page 831. Lord Denning M.
R. relied upon the principles enunciated by
Lord Tenterden in Doe v. Bridges approved
in Pasmore's case (supra) at page 743 in
the case of Southwark London Borough
Council v. Williams and another(2). The
celebrated and learned Master of the Rolls
said at page 743.

"Likewise here in the case of
temporary accommodation for those in
need. It cannot have been intended by
Parliament that every person who was in
need of temporary accommodation should
be able to sue the local authority for it: or
to take the law into his own hands for the
purpose."

25. Thereafter reliance was also
placed on a Full Bench judgment of the
Lahore
High
Court
in
Municipal
Committee, Montgomery Vs Master Sant
Singh reported at AIR 1940 Lah 377,
wherein the consequences of a special
piece of legislation creating particular
rights, and providing special remedies was
considered in the following passage:

"If therefore a demand made by a
Committee is not authorised by the Act and
the person affected thereby objects to the
payment on the ground that in making the
demand the Committee was exercising a
jurisdiction not vested in it by law, it can,
by no stretch of language, be said that he is
objecting to his liability to be taxed under
the Act. Any special piece of legislation
may provide special remedies arising
therefrom and may debar a subject from
having recourse to any other remedies, but
that bar will be confined to matters covered
by the legislation and not to any extraneous
matter."

26. Finally the Hon'ble Supreme
Court in Premier Automobiles Ltd.
(supra) held thus:

"31. On the facts of this case it is
all the more clear that the civil court has no
jurisdiction to try it. The manner of
voluntary reference of industrial disputes to
arbitration is provided in section 10A of the
Act. The reference to arbitration has to be
on the basis of a written agreement between
the employer and the workman. As
provided in sub-section (5) nothing in the
Arbitration Act, 1940 shall apply to
arbitrations under section 10A of the Act.
There is no provision in the Act to compel a
party to the agreement to nominate another
arbitrator if its nominee has withdrawn
from
arbitration.
The
company
had
terminated the agreement dated the 14th
March, 1968 under section 19(2) of the Act.
On the authority of this Court in Sought
South Indian Bank Ltd. V A.R. Chacko, Mr.
Iyer endeavoured to argue that in spite of
the termination of the agreement it still
continued to be in force. Apart from the fact
that the decision of this Court was with
reference to the termination of the award
under section 19, it is clear that the
termination of the agreement in this case
was accepted by the union. It sought to
challenge it by the institution of a suit. It is
clear that the suit was in relation to the
enforcement of a right created under the
Act. The remedy in Civil Court was barred.
The only remedy available to the workmen
concerned was the raising of an industrial
dispute. It was actually raised, and, as a
matter of fact, shortly after the institution
of the suit the disputes were referred by the
Government to the Industrial Tribunal in
240 INDIAN LAW REPORTS ALLAHABAD SERIES
I.T. No. 33 of 1972 on the 25th January,
1972.

32. For the reasons stated above
both
the
appeals
are
allowed,
the
judgments and orders of the courts below
are set aside. But in the circumstances we
shall make no order as to costs in either of
the appeals."

27. In State of Kerala Vs N.
Ramaswami Iyer and Sons reported at
AIR 1966 SC 1738, in the context of the
Travancore-Cochin General Sales Tax Act
the
Hon'ble
Supreme
Court,
applied
principle of implied ouster of the civil court
on the foot, that the legislature had set up a
special tribunal, to determine the question
relating to rights or liabilities which had
been created by the statute.

28. The consistent propositions of law
which can be distilled from the preceding
authorities, are that the courts will not
readily presume ouster of jurisdiction of the
civil court. A statute may explicitly oust the
jurisdiction of the civil courts. In cases
where no express ouster of jurisdiction is
made
by
an
explicit
command
of
legislature, the jurisdiction of the civil
courts may be excluded by application of
doctrine of implied ouster.

29. To decide the issue of implied
ouster of jurisdiction of civil courts, the
courts have to make an enquiry on the
following
lines.
The
enquiry
will
commence with the determination of the
legislative intent, or the mischief sought to
be cured by the legislature while enacting
the statute. This line of enquiry shall be
pursued by examining the scheme of the
statute. The courts shall consider, whether
the rights claimed are common law rights,
or statutory rights. In case the rights are
exclusively created and fully regulated by
the
statute,
it
will
strengthen
the
presumption
of
implied
ouster
of
jurisdiction of civil courts. However, the
enquiry shall not cease just yet. The courts
shall
scrutinize
the
procedure
and
mechanism
of
adjudication
of
such
statutory rights. The efficacy and finality of
statutory remedies of appeals against the
adjudicatory orders, under the statute will
then be searchingly tested. The result of
this enquiry will enable the court, to
determine whether the jurisdiction of the
civil court has been impliedly ousted or
not. Affirmative answers to such enquiries
will tilt the judicial opinion in favour of
ouster of jurisdiction of civil courts.

30. The Cantonments Act, 1924 (as
amended from time to time), does not
expressly oust the jurisdiction of the civil
courts, in regard to matters of erection of
unauthorized constructions. It has to be
enquired, whether the jurisdiction of civil
courts is impliedly ousted in such issues.

31. The survey of the provisions of
the Cantonments Act, 1924 (as amended
from time to time), will be foregrounded
with insights into the establishment of
cantonments, and development of laws in
regard
to
the
lands
and
properties
comprised therein.

32. The lands comprised in the
cantonments throughout the country were
originally
acquired
by
the
British
Government in India (the predecessor of
the Government of India) for military
purposes, either by right of conquest or by
treaty arrangements with a Ruling Chief /
ruling of the day, or by payment of
compensation.
The
cantonments
were
established for military facilities, and
quartering
military
personnel.
(Ref:
Cantonment Laws by J.P. Mitthal)
9 All. Cantonment Board, Agra Vs. Smt. Pushpa Rani Gupta & Ors.
241

33. The nature of the rights of the
inhabitants of such areas acquired or ceded,
to the British Government in India fell for
determination before the Privy Council in
Vajesingji Joravarsingji Nayak vs The
Secretary of State For India, reported at
AIR 1924 PC 21. After summarising the
law on the point, the Privy Council held
thus:

"But a summary of the matter is this:
when a territory is acquired by a sovereign state
for the first time that is an Act of State. It
matters not how the acquisition has been
brought about. It may be by conquest, it may be
by cession following on treaty, it may be by
occupation of territory hitherto nnoccupied by a
recognized ruler. In all cases the result is the
same. Any inhabitant of the territory can only
make good in the municipal Courts established
by the new sovereign such rights as the
sovereign has, through his officers, recognised.
Such rights as he had under the rule of
predecessors avail him nothing. Nay more, even
if in a treaty of cession it is. stipulated that
certain inhabitants should enjoy certain rights,
that does not give a title to these inhabitants to
enforce these stipulations in the municipal
Courts. The right to enforce remains only with
the High Contracting Parties.

34. The Privy Council judgment in
Vajesingji Joravarsingji Nayak (supra)
was followed in Raja Rajinder Chand vs
Sukhi, reported at AIR 1957 SC 286.

35. After the acquisition of lands and
inception of the cantonments the lands
comprising the cantonment areas were
vested in the Government of India. Right of
private ownership of such lands situated
within the cantonments did not exist.

36. From time to time, the lands and
permission to erect constructions thereon
were granted by the Government of India
/cantonment
authorities
to
private
individuals. The allotment of land to erect
houses in the Cantonment, did not confer
the allottee with proprietary rights on the
land. The rights of such individuals were
confined only to the ownership of the
buildings erected on the cantonment lands.
The land continued to be the property of
the Government, and was resumable at the
pleasure of the Government according to
the prescribed conditions.

37. The tenure under which permission
was given to occupy government land in the
Cantonments,
for
constructions
of
bungalows, came to be known as "Old
Grant". Such grants of land and permission
for constructions, was always guided and
strictly controlled by Government policy, and
the
military/cantonment
authorities
administering the cantonment area.

38. The summation of land rights in
cantonments is this. The rights of ownership of
land and proprietary rights in the soil in
cantonment lands, always vested exclusively
in the Government of India. The right of
ownership of land was not conferred upon in
any individual allottee. Right of construction
of buildings in cantonments has always been
granted, restricted and controlled by the
Government
authorities/cantonment
authorities. The common law rule that
whatever is affixed to the soil, belongs to the
soil was not made applicable to lands in
cantonment areas. Rights of individuals over
cantonment lands are not rights at common
law. The right of private individuals to erect
constructions on land in cantonment areas, is
not a right existing from time immemorial.

39. The right of residents of
cantonment areas to construct buildings
thereon, was thus always conferred and
242 INDIAN LAW REPORTS ALLAHABAD SERIES
controlled
by
cantonment
authority
/
government authority since the inception of
cantonments as are understood in this
country. Various legal instruments of the day
were employed by cantonment/Government
authority, to create, regulate and restrict the
right to erect constructions in the cantonment
areas.

40. These factors militate against
construing the right of erection of a fresh
building, or repairing of an old building in
a cantonment area, as preexisting common
law rights. These are not common law
rights. The authorities and the courts cannot
be shackled, by common law doctrines, in
regard to the aforesaid rights. It is evident
now, and the subsequent discussion will
fully confirm, that the right to erect fresh
constructions or repair old constructions in
cantonment lands is a statutory right.

41. The pre-existing restrictions on the
right to raise constructions in the cantonment
lands, and the power vested in the authorities to
regulate such restrictions were consolidated and
formalised in the Cantonments Act, 1924 (as
amended from time to time).

42. The Cantonments Act, 1924, (as
amended from time to time) was brought into
being, to consolidate and amend the law
relating to the administration of cantonments.
The cantonments which are covered by the
Cantonments Act, 1924 (as amended from
time to time), are areas where military
garrisons and establishments are located,
along side habitations of civilian populations.
Serving military personnel and their families
are quartered in the cantonments. Sensitive
military assets and installations, are also
situated in the cantonment areas.

43. The cantonment areas by there
very nature have a direct bearing on
national
security.
The
Cantonments
Act,1924 (as amended from time to time)
read with Rules created thereunder, form a
complete code. The Cantonments Act, 1924
(as amended from time to time) provides a
comprehensive blueprint of administration
of cantonments areas. The legislature has
very neatly balanced the imperatives of
national security, with the demands of
individual rights. Under the Cantonments
Act,1924 (as amended from time to time)
the rights of the civilian populations, are
not overborne or overridden only in the
name of the national security. Various
statutory rights have been conferred upon
the
civilian
population,
under
the
Cantonments Act, 1924 (as amended from
time to time).

44. Provisions of the Cantonments
Act, 1924 (as amended from time to time),
relevant to the controversy are discussed
hereinunder:

45. Chapter II and III of the
Cantonments Act, 1924 (as amended from
time to time) provide for the definition and
delimitation of the cantonments. Section 3
of the Cantonments Act, 1924 (as amended
from time to time) contemplates that the
Central Government may by a notification,
define the limits of the cantonment. The
cantonment is a place as declared in the
notification, in which any part of the
defence forces are quartered, or places are
in the vicinity of any such place, or are
required for the service of such forces to be
a cantonment for the purposes of the
Cantonments Act, 1924 (as amended from
time to time).

46. The administration of the
cantonment is managed by the Cantonment
Board created under Chapter III. Chapter
III also provides for constitution of the
9 All. Cantonment Board, Agra Vs. Smt. Pushpa Rani Gupta & Ors.
243
Cantonment Boards. The provisions of
Chapter III contemplate elections for
members of the Cantonment Board. The
municipal governance of Cantonments is
carried out by the Cantonment Boards
constituted under Section 13 of the
Cantonments Act, 1924 (as amended from
time to time). The members of the
Cantonment Boards, are elected by the
electoral college composed of the persons
who are enrolled as Electors, under the
Cantonments Act, 1924 (as amended from
time to time). In this regard reference may
be made to Sections 26 to 28 of the
Cantonments Act, 1924 (as amended from
time to time). Procedures for meetings of
the Cantonment Board are also provided
under various provisions of Chapter III.

47. The Cantonment Board is vested
with powers of taxation under Chapter V.
The powers for suppression of nuisances
are contemplated in provisions contained in
Chapter IX. Sanitation and the measures for
prevention and treatment of diseases are
visualized in provisions of Chapter X of the
Cantonments Act, 1924 (as amended from
time to time).

48. Chapter XII and provisions
contained therein contemplate markets,
slaughter-houses, trades and occupations
and
regulation
thereof.
Provisions
regarding water-supply, drainage system
and lighting are contained in Chapter XIII
of the Cantonments Act, 1924 (as amended
from time to time). The provisions as
discussed
above
reveals
that
the
Cantonment Board virtually functions like
an autonomous local body.

49. The control over building
constructions, streets, boundaries, trees etc.
in the cantonment premises, are vested in
the
competent
authorities
of
the
cantonment, by virtue of provisions of
Chapter XI of the Cantonments Act, 1924
(as amended from time to time).

50. Chapter XI commences with the
heading "Control Over Buildings, Streets,
Boundaries, Trees, etc."

51. Section 178-A provides for
sanction for building:

"Sanction
for
building.-
No
person shall erect or re-erect a building on
any land in a cantonment-

(a) in an area, other than the civil
area, except with the previous sanction of
the Board,

(b) in a civil area, except with the
previous sanction of the Executive Officer,

nor otherwise than in accordance
with the provisions of this Chapter and of
the rules and bye-laws made under this Act
relating to the erection and re-erection of
buildings."

52. Section 179 contemplates a
written notice of intent to erect or re-erect
any building in the Cantonment:

"179. Notice of new buildings.-
Whoever intends to erect or re-erect any
building in a cantonment shall [apply for
sanction by giving notice] in writing of his
intention to the [Board].

(2) For the purposes of this Act, a
person shall be deemed to erect or re-erect
a building who-

(a) makes any material alteration
or enlargement of any building, or