# Sri Atul Kumar Jain Plaintiff v. Cantonment Board, Meerut Cantt

- **Citation:** (2007) 2 ILRA 454
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-02-09
- **Case number:** Second Appeal No. 108 of 2007
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-atul-kumar-jain-plaintiff-v-cantonment-board-meerut-cantt-40942
- **Pages:** 3

## Headnote

(A) Cantonments Act 1924-Section 185Notice-before
demolition
of
unauthorized construction-Notice served
upon the wife and not upon appellantheld-sufficient-construction erected by
plaintiff and his wife-No legal obligation
of separate service.

Held: Para 5

In
the
allegedly
unauthorised
constructions erected by the plaintiff his
wife is also one of the occupiers and if
the notice has been served upon her that
notice can rightly be treated as sufficient
service and no legal objection in respect
thereto is entertainable at all. Therefore,
the findings recorded by the court below
with regard to the service of the notice
as sufficient, are wholly justified and do
not require any interference in this
second appeal.

(B) Specific Relief Act-Section 41 (h)-
maintainability of suit for injunctionorder of demolition passed by the Board-
2 All] Sri Atul Kumar Jain V. Cantt. Board, Meerut Cantt.
455
under
section
185-Appealabe
under
section 274-but not availed-held-suit not
competent.

Held: Para 6

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.

## Text

454 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
there
was
no
Regulation
such
as
Regulation 101 providing for obtaining
prior approval of the DIOS to the
appointments of class IV employees at the
institution. This aspect of the matter was
considered by the Division Bench of this
Court in case of Om Prakash Vs. DIOS,
Budaun [1982 UPLBEC 232] and it was
clearly held that the appointment of class
IV employees i.e. of Chaukidar made by
the Principal of the institution requires no
approval of the DIOS as there is no
provisions to this effect and, therefore,
such appointees are entitled for salary.
The aforesaid decision has duly been
followed by the another decision of this
Court in case of Mool Chandra Maurya
vs DIOS, Jaunpur [1991 (1) UPLBEC
50]. Therefore, no approval by the DIOS
was
necessary
to
the
petitioner's
appointment.

9. Apart from the above the U.P.
High Schools and Intermediate Colleges
(Payment of Salaries of Teachers and
other employees) Act 1971, which has
been enforced w.e.f 1st August 1971 vide
Section 3 of the said Act provides that the
salary of a teacher or other employee of
an institution after 31st day of March
1971 shall be paid to him on monthly
basis by the office of DIOS on submission
of bills by the management of recognized
institution. In view of the above it is a
primary responsibility of the DIOS to pay
salary
to
the
petitioner
when
his
appointment is not in any way unlawful.

10. In view of the above, the writ
petition is allowed and the District
Inspector
of
School,
Allahabad
(respondent No.1) is directed to make
payment of salary to the petitioner w.e.f
the date of his appointment which
happens
to
be
17.5.1989 with
all
consequential
benefits.
The
salary
received by the petitioner in pursuance of
the interim order of the High Court shall
duly adjusted.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2007

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Second Appeal No. 108 of 2007

Sri Atul Kumar Jain ...Plaintiff-Appellant
Versus
Cantonment Board, Meerut Cantt.

 ...Defendant/Opp.Party

Counsel for the Appellant:
Sri Siddhartha

Counsel for the Opposite Party:

(A) Cantonments Act 1924-Section 185Notice-before
demolition
of
unauthorized construction-Notice served
upon the wife and not upon appellantheld-sufficient-construction erected by
plaintiff and his wife-No legal obligation
of separate service.

Held: Para 5

In
the
allegedly
unauthorised
constructions erected by the plaintiff his
wife is also one of the occupiers and if
the notice has been served upon her that
notice can rightly be treated as sufficient
service and no legal objection in respect
thereto is entertainable at all. Therefore,
the findings recorded by the court below
with regard to the service of the notice
as sufficient, are wholly justified and do
not require any interference in this
second appeal.

(B) Specific Relief Act-Section 41 (h)-
maintainability of suit for injunctionorder of demolition passed by the Board-
2 All] Sri Atul Kumar Jain V. Cantt. Board, Meerut Cantt.
455
under
section
185-Appealabe
under
section 274-but not availed-held-suit not
competent.

Held: Para 6

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.

(Delivered by Hon'ble Umeshwar Pandey, J.)

Heard the learned counsel for the
appellant.

1. The plaintiff-appellant challenged
the order passed by the Cantonment
Board
under
Section
256
of
the
Cantonments Act 1924 (hereinafter called
as the Act) stating that no notice as
required under Section 185 of the said Act
was ever served upon him and the
direction for demolition of the building
erected by him is wholly illegal and
uncalled for, therefore, the prayer for the
relief of permanent injunction.

2. This suit was contested from the
side of the Cantonment Board advancing
the pleadings that the notice under Section
185 of the Act was duly served upon the
wife of the plaintiff Smt. Babita Jain and
when no compliance of the said notice
was made nor any appeal was filed as
provided under Section 274 of the Act,
the orders under Section 256 of the Act
were passed. The contention of the plaint
regarding no service of the notice was
specifically refuted by the respondentdefendant. It has also been pleaded that
the suit was incompetent and barred under
section 41 of the Specific Relief Act and
the alternative remedy of appeal as
provided under Section 274 of the Act
was not availed.

3. The courts below recording
concurrent findings have held that the
service of notice upon the wife of the
plaintiff-appellant was sufficient and she
had received the same and in its
acknowledgement had put her signatures
on the counter foil of the said notice. The
courts below also found that the suit was
not competent as the remedy of appeal
provided under Section 274 of the Act
was not availed of. Accordingly, the trial
court dismissed the suit and plaintiff's
appeal before the lower appellate court
was also dismissed.

4. The learned counsel appearing for
the appellant submits that since the
service of the notice as claimed by the
defendant in its pleading is not in the
manner as provided under Section 254 of
the Cantonment act there could not be a
legal presumption as to the said alleged
service by the court. It is submitted that
under sub-section (1) of Section 254 of
the Act if the addressee of the notice is
not found at the place the notice should be
served by giving or tendering the same to
any adult male member or servant of the
family and since the wife of the appellant
is not a male member of the family, the
delivery of the notice made to her should
not be treated as sufficient service. The
learned counsel has further submitted that
since the notice under Section 185 of the
Act was not served upon the plaintiffappellant, occasion for filing the appeal as
456 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
provided under Section 274 of the Act did
not arise and the suit as such cannot be
said to be barred by Section 41 of the
Specific Relief Act.

5. On perusal of the judgements of
the courts below and other documents
filed with the paper-book it is found that
the specific plea in the defence taken by
the respondent Cantonment Board is that
the service of the notice under Section
185 of the Act was done upon the wife of
the appellant and in an acknowledgement
to that she appended her signature on the
counter foil. This plea has been duly
substantiated and proved in the statement
of the defendant's witness who filed his
affidavit and specifically stated that the
notice was delivered at the residence to
the plaintiff's wife, who was also residing
and occupying the same building having
unauthorised construction. This witness of
the defendant has also been subjected to
through
cross-examination
by
the
plaintiff's counsel, but no challenge at any
place, even in the least, has been made
regarding the fact deposed by the witness
relating to the service of the notice upon
plaintiff's wife. There is no suggestion to
this witness from the side of the plaintiff
that the notice was not taken at the
address given and that it was not handedover to plaintiff's wife. Sub-section (2) of
Section 254 of the Cantonment Act
provides that the notice can be also served
by giving or tendering the same upon one
of the occupiers also if there are more
than one. In the allegedly unauthorised
constructions erected by the plaintiff his
wife is also one of the occupiers and if the
notice has been served upon her that
notice can rightly be treated as sufficient
service and no legal objection in respect
thereto is entertainable at all. Therefore,
the findings recorded by the court below
with regard to the service of the notice as
sufficient, are wholly justified and do not
require any interference in this second
appeal.

6. 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.

7. In the result, the appeal appears to
be without substance and merits and it
accordingly fails and is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2006

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.27313 of 1993

Sardar Kulwant Singh
...Petitioner
Versus
The
VIth
Additional
District
Judge,
Saharanpur and others ...Respondents

Counsel for the Petitioner:
Sri R.S.D. Misra
Sri Ravi Kiran Jain

Counsel for the Respondents:
Sri Atul Dayal
Sri S.N. Misra