(1.) This First Appeal No. 54 of 1964 coming up quarter of a century after the action commenced on Oct. 6, 1959 wherein, as is not unusual, the suitor has not survived, is another grim reminder to crying need for urgent judicial reform in the system. To apportion blame is not the object; this is the resultant of a cumulative set of factors - the various actors having different role to Play.

(2.) One Jyoti Prasad Upadhyaya was the owner of house No. 18 The Mall, Agra Cantonment, Agra. Land is freehold covered under old grant. There was partition by a Civil Court decree - the division was by metes and boundSection Govind Behari Lal held, by purchase made on 15th Feb., 1941, 1/4th share (which was separated) and shown as house No. 18/1 in the Cantonment Board record. On his death his son Jai Raj Behari Lal and the widow made transfer of house No. 18/1 by registered sale deed dated 2nd Dec., 1957, in favour of Vishwanath Goyal and his wife for consideration. The vendees intended to renovate and raise certain new constructions on the land purchased. For this, Vishwanath Goyal applied to the Cantonment Board for sanction by giving notice required under SECTION 179 of the Cantonments Act, 1924 (hereinafter referred to as the) on July 14, 1958. A written communication was sent by him thereafter on 18th Oct., 1958, since, according to the plaintiff, there was no order received from the Board on his application. This was under SECTION 181(6) of the. It was followed by a series of such communications to which I shall revert later, but there being no response from the other side, the plaintiff began to raise constructions on assumption of deemed sanction from the Board. The Board reacted by giving notice dated March 18, 1959, under SECTION 185(1) directing the plaintiff to stop unauthorised construction. Due allegedly to non-compliance to this notice, the Board followed it up by an order under SECTION 256 of the to demolish the impugned construction. This was given by notice in writing dated 31st Aug., 1959. Vishwanath Goyal instituted the suit with these allegations seeking relief of permanent injunction to restrain the Cantonment Board from demolishing the constructions contending that the notice issued by the Board is illegal, inoperative and void.

(3.) In defence the Board took the stand that the plan received from the plaintiff on 14th July, 1958, was returned to him for correction and re-submission because it was incomplete, defective and against the bye-laws, The plan was however, not re-submitted. It is denied that the Board was served with notice under SECTION 181(6) at any stage. According to the Board there was no basis to proceed on assumption of deemed sanction. The constructions being un-authorised those could be demolished as resolved by the Board under SECTION 256 of the. It is pleaded also that the suit is barred by SSection 274/278 of the.

(4.) Learned Civil Judge, Agra dismissed, the suit on Dec. 14, 1962, being of opinion that the plan submitted by the plaintiff with the notice seeking sanction for construction had been returned to him. It was observed that there are discrepancies between the construction proposed to be raised as appearing from that plan and the building actually constructed. He found it unnecessary to decide whether there was written communication made by the plaintiff to the Cantonment Board and observed that it is immaterial whether or not the Cantonment Board neglected or failed to accord sanction within the prescribed period whereby deemed sanction may be inferred in accordance with SECTION 181(6) of the. The suit was also held to be barred in view of SSection 274/278 of thesince there was no appeal filed by the plaintiff in the matter. Aggrieved the plaintiff preferred this appeal and since he died on Nov. 24, 1968, his legal representatives have been substituted.

(5.) Upon the appeal coming up for hearing on March 19, 1979, Sri J.N. Tewari, learned counsel for the Cantonment Board, (respondent) urged that the area wherein the building in question is situate lies under the management of the Military Estates Officer (for short the MEO) Agra and not the Cantonment Board. It was conceded that no such plea had been raised in the written-statement filed on Nov. 16, 1959, or the additional written-statement submitted on Feb. 11, 1963. D. W. SECTION K. Bhatnagar, Technical Assistant, MEO, stated, however, in his deposition that the management in the area was of the MEO. On this basis the Division Bench, hearing the appeal, thought it appropriate to frame an additional issue for the finding being recorded by the trial Court and subsequently amended that on Dec. 9, 1983. The issue runs as under :- "Whether Bungalow No. 18/1 situated in Shehzadimandi Bazar, Cantonment Agra, was at the relevant time administered by the MEO . After taking additional evidence the trial Judge recorded the finding dt. Feb. 23, 1984, on this additional issue in the negative. Against this the respondent has filed objection.

(6.) The other point raised in the appeal for decision is :-

"Whether on the facts and in the circumstances of the case sanction of the Cantonment Board could be deemed to exist under SECTION 181(6) of the If so, or not, its effect ".

(7.) In view of the subsequent amendment in the Rules of Court, the appeal came up before me for hearing. I have heard learned counsel on both sides, including on the objection raised against the finding dated Feb. 23, 1984, and have perused the record.

(8.) Taking up the additional issue first, reference may be made in brief at the out-set to certain relevant provisionSection Section 43A(1) of thewas inserted by the Cantonment (Amendment) Act 1936 (Act 24 of 1936) with effect from 7th Nov., 1936. This reads as under :-

"43A. Committees for BazarSection (1) Every Board constituted under SECTION 13 in a Class I cantonment or Class II cantonment shall appoint a committee consisting of the elected members of the Board, the Health Officer and the Executive Engineer for the administration of such areas in the cantonment as the Governor General in Council may, by notification in the Gazette of India, declare to be bazar areas, and may delegate its powers and duties to such committee in the manner provided in cl. (e) of Sub-SECTION (1) of SECTION 44. (2) The Vice-President of the Board shall be the Chairman of the committee appointed under Sub-SECTION (1)".

(9.) By SECTION 11 of the Cantonment (Amendment) Act, 1953 (Act 2 of 1954) with effect from Jan. 4, 1954, in Sub-SECTION (1) of SECTION 43A of the Principal Act for the words "bazar areas" the words "civil areas" were substituted. The expression "civil area" was defined under SECTION 2(d) by the Cantonments (Amendment) Act, 1983 (Act 15 of 1983) with effect from Aug. 20, 1983, as meaning an area declared to be a civil area by the Central Government under SECTION 43A.

(10.) In exercise of powers under SECTION 280 of the the Central Government framed the Cantonment Land Administration Rules, 1937. Rule 3(1) enjoins upon the MEO to prepare in the prescribed form a General Land Register of all land in the Cantonment (a) inside bazars and (b) outside bazarSection Rule 4(a) classifies land in the Cantonment into two classes, namely - Class A, which is required or reserved for specific military purposes, and Class B land, which is not so required or reserved, but, which is retained in the Cantonment for the effective discharge of the duties of the Central Government in. respect of military administration. Class B land is sub-divided under R.6. Sub-Division (iii) provides that Class B(3) land comprises of land which is held by any private person under the provisions of these Rules subject to conditions under which the Central Government reserve or have reserved to themselves the proprietary rights in the soil. Rule 9(5) provides that the management of all Class B(3) land shall ordinarily be entrusted to the MEO though the Central Government is empowered under the proviso to entrust the management of any such land to the Board. Maintenance of the General Land Register, referred to above, is left to the MEO in accordance with R.10.

(11.) Sri J.N. Tewari, learned counsel appearing for the Cantonment Board (respondent), urged that the land comprising the building in dispute is outside the bazar (now civil) area. He refers in this connection to the gazette notification published under SECTION 43A(1) of the by the Central Government on Nov. 27, 1937. The submission made is that the description of the boundaries of the bazar areas in the Agra Cantt. as appearing in this notification is suggestive that in so far as Shehzadimandi Bazar relevant for our purposes is concerned, the land in question is situate outside the same. The boundaries given in this notification concerning this particular bazar are as under :- SHEHZADI MANDI BAZAR North :- Gwalior Road and the Bungalows NoSection 18 and 19, Survey NoSection 212 and 213 respectively. South :- Taj Road. East :- Public Garden, Survey No. 361. West :- Bungalows NoSection 30, 46, 48 and 49, Survey NoSection 218, 225, 226 and 228 respectively.

(12.) He argued that whatever is referred to in the boundaries falls outside the limits of the Shehzadimandi Bazar. We are concerned herein with the boundary towards north which mentions the Gwalior Road and the Bungalows NoSection 18 and 19, Survey NoSection 212 and 213 respectively. It is not in dispute that Bungalow No. 18 earlier included also what is now described as 18/1 and that this entire structure lies upon the survey plot No. 212. Sri J. Swarup referred to a note appearing in Bouviers Law Dictionary Vol. I, Page 384, which says that the term boundary is applied to include the objects placed or existing at the angles of the bounding lines, as well as those which extend along the lines of separation. In Corpus Juris Secondum (Vol. XI) page 541 the observation is that the word "to", "from", "by", "on" and "between" when used in a description of boundaries, are to be understood as terms of exclusion, unless there is something in the connection which makes it manifest that there were used in a different sense. There cannot be a hard and fast rule laid down as to thiSection This has to vary according to the context. In Halsburys Laws of England page 354 it is pointed that whether a boundary is, or is not, included in the property which is described as bounding depends upon the circumstances of each case. The reference to highways on two sides of the boundary we are concerned with in this case is, in the absence of anything to the contrary, suggestive that the description given is of exclusion that is to say, the limits of the Shahzadimandi Bazar extend up to what is the southern limit of the Gwalior Road and likewise they end to the north of the Taj road. The survey plot No. 212, as shown in the plan governing the extract of the General Land Register maintained by the MEO, lies to the south of the Mall Road. Survey Plot No. 212 being itself outside the bazar area towards the north, it follows that the Mall Road situate to its further north is also outside the bazar area. An argument was also raised for the appellant to the effect that the respondent had not placed on record notification under SECTION 43-A issued subsequent to Jan. 4, 1954, when the Amendment Act 2 of 1954 came into force and wherein the Civil area may have been declared. In this connection there was a reference made to the statement of D. W. R. SECTION Mehta, Overseer, Cantonment Board, and therefrom it has been sought to be inferred that such a notification relevant to the area came into being. In my opinion it is not possible to draw such an inference. A perusal of his statement shows that he lacks personal knowledge on the subject. It is conceded by him that he did not see such notification himself. He seems merely to be guessing when he says that a notification like this will have been issued. The absence of any such notification from the record is moreover of no consequence - the reason being that by SECTION 11 of the Amendment Act 1954 all that was done was that the nomenclature of bazar area was replaced by civil area; there was, in other words, a mere substitution in name and as a result whatever had been notified prior to this as bazar area came to be described later as civil area. The question remains whether prior to this Amendment Act this area was declared as comprised in bazar area and to this my answer is in the negative for reasons discussed above. In my opinion the topography admitted in relation to area in question read alongside with the contents of the notification dated 27th Nov., 1937, leaves no room to doubt that the land, wherein the plot in dispute is situate, lies outside the limits of the Shehzadimandi Bazar area and, therefore, the management thereof would be taken to be that of the MEO.

(13.) Assuming as contended by Sri J. Swarup, learned counsel for the appellant, that the land in question is within the limits of the aforementioned bazar area, it may not be overlooked that in view of R.9(5) this shall still be taken to be managed by the MEO. The reason is that this is land falling within the description given to Class B(3) land as defined in R.6(iii) and R.9(5) lays down that the management of all Class B(3) land shall ordinarily be entrusted to the MEO. It is not the case of the appellant that the Central Government entrusted the management of this land to the Board instead under the proviso to R.9(5) at any stage. As to what is the effect of the management of the land vesting in the MEO I shall consider when I pass on to the other issue.

(14.) Taking up then for consideration the other point, which constitutes the principal issue, it will be noticed that SSection 178A to 190 of the deal with the control of the Board over buildingSection No person can erect or re-erect a building on any land of cantonment except with the previous sanction of the Board, nor otherwise than in accordance with the provisions of Chap. IX and of the rules and bye-laws made under the relating to the erection and re-erection of buildingSection (SECTION 178A). A person intending to erect or re-erect any building in a Cantonment has to apply for sanction in accordance with SECTION 179 by giving notice in writing of his intention to the Board. The expression erection or re-erection of a building is given a very wide meaning under Sub-Sec. (2) and that covers also the making of any material alteration or enlargement of any building. SECTION 180(2) provides that the notice shall be accompanied with plans, which may be required under bye-laws made under the. The Board may, according to SECTION 181(1), either refuse sanction to the erection or re-erection, as the case may be, of the building or may sanction it either absolutely or subject to such directions, as it thinks fit to make in writing, in respect of matters enumerated therein, which are not necessary to be reproduced. Sub-SSection (3) and (6) of SECTION 181 are material and they read as under :- (3) The Board, before sanctioning the erection or re-erection of a building on land which is under the management of the Military Estates Officer shall refer the application to the Military Estates Officer for ascertaining whether there is any objection on the part of Government to such erection or re-erection; and the Military Estates Officer shall return the application together with his report thereon to the Board within thirty days after it has been received by him. (6) Where the Board neglects or omits, for one month after the receipt of a valid notice, to make and 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; Provided that, in any case to which the provisions of Sub-SECTION (3) apply, the period of one month herein specified shall be reckoned from the date on which the Board has received report referred to in that Sub-Section.

(15.) According to SECTION 184 it is an offence to begin, continue or complete the erection or re-erection of a building without having given a valid notice as required by SECTION 179/180 or before the building has been sanctioned or deemed to have been sanctioned and such offence is punishable with fine. Power is given to the Board under SECTION 185(1) to direct, by notice in writing, the owner or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board considers that such erection or re-erection is an offence under SECTION 184. The Board may also direct thereunder within twelve months of the completion of the construction or reconstruction that the same be demolished. In case of noncompliance to the requirement under such notice, the Board may, after giving notice in writing to the concerned person, take such action or such steps, as may be necessary, for the completion of the act or work required to be done or executed by him.

(16.) Admittedly, the plaintiff in this case applied on July 14, 1958, by notice in writing for sanction to the Board. The receipt issued by the official of the Board on that date itself signifies that the plaintiff had submitted a plan of the building No. 18A with three copies of blue-print and one copy of original along with three copies of the site-plan and the Forms A and B. The appellants case is that since nothing was heard from the Board on the subject, the plaintiff followed it by a written communication sent under registered cover on Oct. 18, 1958. Reference was made therein to the notice dated July 14, 1958, and the enclosures thereto and it was said that despite repeated requests and personal call on the Executive Officer, Board had neither communicated sanction nor intimated to the plaintiff if he had any objection to the plan and that he only kept promising to expedite the sanction. The plaintiff further gave out that if a reply or objection was not received within fifteen days of the receipt of the subsequent notice dated Oct. 18, 1958, it would be taken that the Board had no objection to the proposed constructions according to the land and the application submitted by the plaintiff on July 14, 1958, shall be deemed to have been duly sanctioned. The plaintiff, it appears, pursued the matter vigorously thereafter, as is revealed clearly by the successive communications in writing under registered post sent by him to the Executive Officer, Cantonment Board, on Jan. 12, 1959, Feb. 19, 1959 and Feb. 26, 1959. The communication dated Jan 12, 1959, was by way of reminder; in the letter dated Feb. 19, 1959, it was given out that this was to be taken as the fresh notice contemplated under SECTION 181(6) and to the same effect is the subject-matter of the letter dated Feb. 26, 1959. The plaintiff also placed on record the acknowledgements received in respect of these communications sent to the correct address under registered post. A perusal of these notices/letters reveals that in each one of them the plaintiff made reference to his notice dated July 14, 1958, accompanied with the plan etcetera and significantly he maintained that the plan was with the Board still, but there was neither sanction expressly recorded nor an objection relating thereto communicated. In reply, as appears from paras 5 to 8 of the written statement, the Board found it convenient to say simply that no such communication was received. Vishwanath Goyal, the plaintiff, entered the witness-box before the trial court. He testified on personal knowledge to these communications having been sent by him in the normal course under registered covers to the correct address and he also testified that in Sept., 1959, he saw the Executive Officer personally, but then, too there was no objection relating to the proposal conveyed to him. Every time the communication given was that action was being expedited. The trial court has unfortunately lost the significance of the evidence existing on the record in this behalf. It observed that whether or not the defendant neglected or omitted to communicate its order disapproving the plans submitted by the plaintiff is immaterial. It was also said that the plaintiff had asserted that he had definitely sent such communications to the defendant whereas the latter averred that no such communication had been sent. But that it was not necessary to deal with the controversy of the parties in this behalf or to deal with the question whether any such written communication had been sent by the plaintiff or not. The plaintiff had expressly placed reliance upon SECTION 181(6) of the right from the stage of his pleading. His case throughout had been that sanction is to be deemed as accorded since despite the communications sent by him as contemplated under this provision, the Board had chosen not to respond within the prescribed period. There could be no adjudication made in regard to this vital controversy without finding whether there was neglect or omission on the part of the Board. This is, in my opinion, manifest from the material placed on the record; taking into account the long history of this litigation it is neither prudent nor expedient to remand the matter to the court below for a finding on this aspect being recorded.

(17.) Sri Tewari made reference to letters dated Aug. 4, 1958, June 4, 1959 and Oct. 17, 1959 alleged to have been issued from the Board. It was argued that the Board has made a return of the plan, as stated in the letter dated Aug. 4, 1958, and subsequently. The probabilities of the case strongly stand against this averment. In case the plan had been returned to the notice giver with any sort of objection raised, there could be no occasion for the plaintiff to have gone on writing successively as he did under registered cover on Oct. 18, 1958, and Feb. 26, 1959. To these letters, as such, there was no reply, it may be noted, given from the side of the Board. There was no denial promptly made in reply to these letters from the side of the Board that the plan was not retained in the office of the Board or that there had been a return made of the same to the plaintiff with certain objectionSection Instead the Board proceeded to give notice under SECTION 185(1) of the straightway on March 18, 1959 requiring the plaintiff to stop construction forthwith to which also the plaintiff lost no time in replying, as he did on April 2, 1959 , and it is only thereafter that the Board came up with the letter dated June 4, 1949, saying that the plan had been returned earlier on Aug. 4, 1958. The pursuit, which the plaintiff was making in the matter, and his conduct in this behalf are strong pointers in the direction that no such return was made. It is not only that the plaintiff had been writing successively to the Board, he had met the Executive Officer personally also. The trial court was not right in having drawn an inference against the plaintiff on the footing of his letter dated Sept. 21, 1959, which is exhibit 38. In this letter the plaintiff gave history of the previous communications addressed by him. It was reiterated that there was no reply received by him to any of those communications ranging between Oct. 18, 1958, to Feb. 26, 1959. In para 6 the narration is that on April 2, 1959, there was notice received purporting to be under SECTION 185(1) directing the plaintiff to stop construction. Thereafter in para 9 he proceeds to say that himself being in the legal profession he did not wish to displease the authorities and he was, therefore, "without prejudice" resubmitting, as desired, the plan for, formal sanction. The re-submission of the plan by the plaintiff along with this letter was, therefore, along with all that he recited therein earlier and expressly without prejudice. On the basis thereof it was wrong to have assumed that since the plan was submitted over again, the plaintiff must have received back the plan, which he had originally submitted to the Board on July 14, 1958, and such inference is entirely unwarranted and unjustified both from the contents of this letter as well as the other evidence. As will presently appear moreover, the objection alleged to have been raised for the Board in returning the plan is not such as may bear scrutiny, nor could it lead the plaintiff to fight shy of facing the same or of taking to any concealment of material factSection

(18.) Sri Tewari, learned counsel, then contended that because the area in question is under the management of the MEO, the provisions relating to deemed sanction contained in SECTION 181(6) of the are inapplicable. I am unable to accede to this submission. A perusal of Sub-SSection (3) and (6) of SECTION 181 makes it clear that even where the management is of the MEO, the sanction is to be accorded or declined, as the case may be, by the Board. This is manifest also from the language of Sub-SECTION (3) wherein it is stated that before sanctioning erection or re-erection of a building on land which is under the management of the MEO the Board shall refer the application to the MEO to ascertain whether there is any objection on part of the Government to such erection or re-erection. The person intending to erect or re-erect a building in the cantonment does not have to apply to the MEO directly for the purpose. The notice in writing is to be given by him under SECTION 179 to the Board; it is up to the Board, according to SECTION 181(3), to seek a report from the MEO in a case where the management vests in the MEO, as in the present case. The only difference created on this account is that where the management is of the Board directly there is no question of the Board calling for a report from the MEO. But if instead, the management vests in the MEO, there may be no sanction accorded except on obtaining report relating to objection, if any, from the MEO. Since it was up to the Board to have sought for such report, the omission on its part to do so is neglect or failure within the meaning of Sub-SECTION (6). In that event too the person seeking the sanction becomes entitled to assume the existence of deemed sanction relying upon neglect or omission of the Board to do the needful. The record shows that on Feb. 1, 1959, the MEO wrote to the Board saying that construction was being raised on this land and enquiring in regard to the action taken, if any, vide exhibit A 10; the plaintiff had admittedly applied under SECTION 171 long before on July 14, 1958. But even up to Feb. 1, 1959, there had been no action taken by the Board to obtain report from the MEO. Sri Tewari laid stress on the proviso to Sub-SECTION (6) of SECTION 181 and argued that in view thereof sanction may not be deemed where the management vests in the MEO. No such inference can be drawn. The only effect of the proviso is that in case where the management is of the MEO the period of one month from the receipt of notice under SECTION 179 shall stand substituted by the period of one month from the receipt of report of the MEO. In other words if we take in the proviso to the main body of Sub-SECTION (6), it will, in so far as material, read as under :-

"Where the Board neglects or omits, for one month after the date on which the Board has received report referred to in Sub-SECTION (3), to make and to deliver to the person who has given the notice any order of any nature specified in this section."

18-A. To my mind, therefore, there is no justification to contend that the deemed sanction may not be said to arise where the management vests in the MEO instead of the Board.

(19.) The contention of Sri Tewari has been that since the plan submitted by the plaintiff on July 14, 1958, was not in order, the Board could not have obtained report from the MEO. It is not necessary to revert back to evidence discussed above showing that the plan was not returned to the plaintiff on or about Aug. 4, 1958, by the Board with any sort of objection raised in this connection. This apart, the only shortcoming alleged in relation to that plan from the side of the Board is that the structure existing in building No. 18 had not been shown. D.W.K.K. Rajwanshi, the official of the Board, who examined the plan, states accordingly that the plan contained existing structure of house No. 18/1 only and not the entire building No. 18 and hence it was not in order. It is argued that since in the General Land Register the building recorded is No. 18 as a whole, it was incumbent upon the plaintiff to have shown in the plan the existing structure of this entire building and not of marked as 18/1 only. It is not possible to agree to this contention. In this extract of the register as well there is a reference to 1/4 of the building having been made purchase of by Govind Behari Lal. From the bye-laws it is clear that the existing construction required to be shown was only in relation to such land with respect to which sanction was sought. Bye-law No. 1 notified on Oct. 24, 1942, to which the respondents counsel refers says that a person intending to erect or re-erect a building shall apply for sanction by giving notice in writing to the Board under SECTION 179 in Form A and submit also :- (a) a site-plan of the land on which it is intended to erect or re-erect the building and (b) a plan of the building which it is proposed to erect or re-erect together with the plan of existing building, if any. Reading these clauses (a) and (b) together there can be no other reasonable inference drawn, in my view, except that the existing building required to be shown is such as is there, if any, on the land on which it is intended to erect or re-erect. There is no controversy that the plaintiff had abstained from showing existing building on the demarcated and recorded as No. 18/1. This constituted a distinct entity, including in the cantonment recordSection In support thereof the plaintiff referred also to the mutation and the assessment during the period of 1958-59 to 1961-62. Tax was paid throughout on the basis of this assessment; the bill received from the Board for payment of tax dated July 3, 1958, is also on the record, which suggests that even prior to July 14, 1958, when the plaintiff sought the sanction, there had been entry made of this distinct entity (exhibit 52). The requirement under bye-law No. 1 had, therefore, been complied with, there was no occasion for the plan being returned on the basis thereof nor could be plaintiff have given reason in such an event to sit tight over the matter or to abstain from showing even the building existing as No. 18 in the plan, if he had been in fact communicated such objection from the side of the Board.

(20.) The trial court observed also that the construction which the plaintiff raised was not according to plan submitted by him. This impression is incorrect. Bye-law No. 7 dated Oct. 24, 1942, requires that in case of buildings consisting of more than one storey the height of each storey shall not be less than twelve feet in case of ground floor and ten feet in the case of first and second floor. In case of single storey the height shall not be less than twelve feet. The court below observed that, according to the report submitted by the Commissioner dated March 28, 1960, the height of the verandah of the main building was 15 9" to 16 7" whereas, according to the plan it should have been twelve feet only. The elevation plan reveals that the foundation proposed was shown as of three feet, the plinth two feet and the height mentioned as twelve feet. This, in any case, would not be less than twelve feet and hence too there is no breach of bye-law No. 7 involved. The court below said also that the height of the ground floor was found by the Commissioner to be ten feet whereas it should have been twelve feet. It is overlooked that in so far as the completed structure was concerned the height was not less than twelve feet even according to the Commissioner and it is only in respect of certain part which was not complete up to the time the Commissioner visited the site that the height was noticed to be less than twelve feet. It could not be maintained, therefore, on this basis that the plaintiff had not adhered to the plan submitted by him or that he breached bye-law No. 7.

(21.) For the reasons stated above, I find that, on the facts and circumstances of the case, sanction of the Board is to be deemed to exist under SECTION 181(6) and, therefore, on this account there could be no action taken under SSection 185/256 of the.

(22.) In so far as the plea concerning the bar of SSection 274/278 of theis concerned this need not detain us long. Erection or re-erection of a building is illegal within the meaning of SECTION 184(a) where it is begun, continued or completed without having given a valid notice as required by SSection 179/180 or before the building has been sanctioned or is deemed to have bean sanctioned. SECTION 185(1) is attracted where there is contravention of SECTION 184 and the action under SECTION 256 is contemplated where the notice given under SECTION 185(1) is not complied with. These are, therefore, inter-linked in this manner. In the present case there was deemed sanction within the meaning of SECTION 181(6) as discussed above. This means, in other words, that the erection or re-erection was not illegal within the meaning of SECTION 184(a); the notice dated March 18, 1959, given by the Board purporting to be under SECTION 185(1) was consequently illegal, inoperative and void. The plaintiff came to the Court with these avermentSection The law is settled that where a liability is not existing at common law and is created by a statute, which at the same time gives special and particular remedy to enforce it, the remedy provided by the statute must be followed. To this there is, however, a well recognised exception to the effect that notwithstanding the fact that certain orders are declared to be final under a statute it is always open to civil court to entertain a suit where the challenge is that the order in question is a complete nullity, having been passed in breach of the provisions of the statute or by an authority having no power to pass the same or it having been passed in violation of the fundamental, principles of judicial procedure vide Ram Swarup v. Shikher Chand; K.C. Dora AIR 1974 SC 1069 [LQ/SC/1973/389] ; Bata Shoe Co. Ltd. v. Jabalpur Corporation AIR 1977 SC 955 [LQ/SC/1977/127] . In the Cantonment Board, Meerut v. Chandra Prakash Jain 1979 All LJ 1000 the question raised directly was whether SSection 274/278 could be invoked as a bar to the civil proceeding where the notice issued under SECTION 185 was allegedly a nullity. This was answered in the negative. The notice being void ab initio the bar of this provision did not apply and in such a case, it was held, the jurisdiction of the civil court is not ousted. The Court retains the jurisdiction to adjudicate on the validity of the impugned notice as distinct from its correctness or propriety. I am in respectful agreement with this view. In Dhulabhai v. State of M. P. AIR 1969 SC 78 [LQ/SC/1968/102] , the first proposition laid down is that a provision in a statute giving finality to the orders of the special tribunal (such as SECTION 278 of the) 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. Several other aspects like the scheme of the, adequacy and sufficiency of remedies provided by it etc. have to be considered to ascertain the precise intendment of the Legislature : State of Tamil Nadu v. Ramalinga Samigul Madam (1985) 4 SCC 10 [LQ/SC/1985/164] . A perusal of Schedule V to the shows that there is no appeal provided against action of the Board purporting to fall under SECTION 256 of the. Where as in this case the notice issued on 18th March, 1959, purporting to be under SECTION 185 is replied to by the plaintiff pleading deemed sanction but without making a probe into this the Board proceeds to invoke SECTION 256 on Aug. 31, 1959, and in the meantime the limitation of thirty days from the service of notice under SECTION 185 laid down in the Schedule V is over, the provisions cannot be said to be intended to debar the plaintiff of his ordinary remedy of approaching the Civil Court wherein the challenge primarily is against the validity of the notice itself on ground that this was ab initio void. In Cantonment Board, Kamptee v. Burjorjee Dada Bhoy Zal, AIR 1955 Nag 81 cited for the respondent the facts were distinct. Therein the respondent challenged the refusal to accord sanction on ground that the reason given in support thereof was not correct. The objection raised was that by the construction was observed that if the respondent failed in the matter the position could be clarified by him during the appellate proceedings before the case was heard. This, therefore, did not pertain to a case where there is deemed sanction under SECTION 181(6) and in consequence the non-application of SSection 184/185. The jurisdiction of the civil court in the matter was, therefore, not barred in my opinion.

(23.) For the discussion made in the above, the appeal succeeds and is accordingly allowed. The judgement and decree of the court below dated 14th Dec. 1963, are set aside. The suit shall stand decreed for permanent injunction restraining the respondent (defendant) from demolishing the impugned constructions by themselves, their servants or agentSection In the circumstances, the parties shall bear their own costs throughout. Appeal allowed.