1995 PLP 883 (MLD)

The reading of the plaint leads to an irresistible conclusion that the plaintiffs in fact sought a declaration that by operation of law sanction was deemed to have been given by the Board; that QMG or the Military Authorities do not figure in the Cantonments Act and that the plaintiffs were being discriminated against. The prayer no doubt was deftly worded to make the suit as a suit for injunction, but that was done simply to thwart invocation of provisions of section 273 of the Act. It may also be pointed out that injunction can be sought against violation or threatened violation of established rights and not of supposed rights. The plaintiffs sought relief by asking that by operation of law a specific right was acquired by them, but whether they had acquired the same or not needed a declaration that they, in fact, had. Word "deem" is commonly used to create legal fiction and introduces an artificial conception. A right deemed to have been acquired is not an established right and it requires recognition. The suit filed by the plaintiffs was in essence a suit for a declaration that their acquisition of right under the deeming clause be accepted. As such, the plaintiffs suit was a declaratory suit and they were required to have communicated a notice to the Cantonment Board under section 273 of Cantonments Act, 1924 which they did not. The precedent relied upon by the plaintiffs PLD 1976 SC 785 is distinguishable on facts. In that case an encroachment or supposed encroachment was sought to be removed and the so‑called encroacher's stand was that he had not encroached at all on the Cantonment property but was occupying a stall as tenant. So question of any declaration as to title of the plaintiff was not involved nor any right under a deeming clause was claimed by him. The present suit proceeded on different facts and was for all intents and purposes a declaratory suit. The findings of the learned Additional District Judge on issue No.l were thus not based on correct appreciation of the law or the facts of the case, and hence are set aside.

9. The claim of the plaintiffs was that they submitted a plan for erection of additional floors and as the Board failed to take any action they served a notice under section 181(6) of Cantonments Act and after the expiry of fifteen days from service of notice, sanction of the Board to the building plans would be deemed to have been given; and that the Military Authorities do not figure in this scheme of sanctioning of building plans, therefore, obtaining of no objection‑certificate from the G.H.Q. or the Quartermaster‑General was not required. Section 2(viii) of the Cantonments Act defines "Competent Authority" as meaning the Chief of the Army Staff or any other officer appointed by the Federal Government to be the competent Authority in respect of one or more Cantonments or class of Cantonments. Every Board managing the affairs of a Cantonment is required under section 45‑A of the Act to submit a yearly report to the Government through the Officer Commanding‑in‑Chief regarding administration of the Cantonment; under section 47 Officer Commanding‑in‑Chief may order inspection of record of the Board; under section 48 the same officer can call for any book or document in the possession of the Board; section 49 of the Act empowers the Officer Commanding‑in‑Chief to direct the Board. for performance of its duty or execution of work; section 51 of the Act empowers the aforesaid officer to override decision of the Board and section 52 of the Act confers power on Officer Commanding‑in‑Chief‑to give direction to Board to reconsider its decision; to suspend or cancel the decision of the Board. As far as erection of buildings is concerned, the‑powers of the Board to sanction any plan in this regard, have been made subservient to Officer Commanding‑in‑Chief under section 181(2) and section 185(2) of the Act. Section 181(2) reads as:‑‑ "The Board may refuse to sanction the erection or re‑erection of any building either on grounds sufficient in the opinion of the Board affecting the particular building, or in pursuance of a general scheme sanctioned by the Officer Commanding‑in‑Chief, the Command, restricting the erection or re‑erection of buildings within specified limits for the prevention of over‑crowding or in the interests of persons residing within such limits or for any other public purpose." Section 185(2) "A Board shall by notice in writing direct the owners, lessee or occupier of any land in the cantonment to stop the erection or re -erection of a building in any case in which the order under section 181 sanctioning the erection or re‑erection has been suspended by the Officer Commanding‑in‑Chief, the Command, under clause (b) of subsection (1) of section 52, and shall in any such case in like manner direct the demolition of alteration, as the case may be, of the building or any part thereof so erected or re‑erected where the Officer Commanding‑in‑Chief, the Commander, thereafter directs that the Board sanctioning the erection or re‑erection of the building shall not be carried into effect or shall be carried into effect with modifications specified by him: Provided that the Board shall pay to the owner of the building compensation for any loss actually incurred by him in consequence of the demolition or alteration of any building which has been erected or re‑erected prior to the date on which the order of the Officer Commanding‑in‑Chief, the Command, has been communicated to him." The scope of powers conferred on the Officer under the above provisions has been examined in certain judicial pronouncements from the Indian jurisdiction. Case of Taramani Devi v. Union of India and others AIR 1974 Pat. 216 reads as:‑‑ "Where after a building was built and completed in pursuance of the sanction accorded by the Cantonment Board, the Commanding Officer cancelled the sanction, and the Board therefore, ordered the demolition of the building it was held that the words "the decision shall not be carried into effect" in section 52(1)(b) do not convey the meaning that something has remained to be done in pursuance the decision of the Board. It is clear from the provisions of section 184(2) that the Board can direct the demolition of a building even when the erection is complete if the Officer Commanding‑in‑Chief directing that the order of the Board sanctioning the erection shall not be carried into effect. In such circumstances the Board has only to pay full compensation to the owner of the building for the loss incurred by him. The order of the Commanding Officer cancelling the sanction is pot ultra vires section 52(1)(b) and the order of the Board ordering demolition is not ultra vires section 185(2)." The above discussion would show that the Military Authorities have the final say in the matter of erection or re‑erection of buildings and any decision by, the Board would not attain finality unless approved by these authorities. Thus, approval of the Officer Commanding or his delegatee would be a sine qua non for considering any building plan as having been finally approved, and unless the Military Authorities endorse the plan by giving their blessings by approving the same or by giving a no‑objection‑certificate, the plan would remain unsanctioned. The observations of the learned Additional District Judge on page 12 of the judgment "under the above it is not out of place to observe that in the entire Cantonment Act there is no express provision which makes the approval of Q.M.G. necessary for erection of additional floors" are totally misconceived and based on ignorance of the relevant provisions of law.

10. The commercialization of the property of the plaintiffs was allowed by the Government Headquarters, Q.M.G: s Branch vide letter dated 12‑10‑1982 (Exh.D‑16) relevant part of which reads as:‑‑ "G.H.Q. have no objection to the commercialization of the said Plot No.4, the Mall, Rawalpindi Cantt. (2) A minimum of 25 ft: wide parking space will be left by the lessee and the building plan will be submitted to G.H.Q. for clearance from military point of view." Thus the very foundation of the building sought to be erected was dependent upon authorization by G.H.Q. The plaintiffs thereafter got permission to erect a three‑storey building (basement + 2 floors) under the mandate of G.H‑Q (Exh.D‑14) and it would be preposterous to assume that after construction of the building the terms of authorization underwent a change and G.H‑Q washed its hands off the matter. The plaintiffs appear to have completed construction of the 3‑storey building not in accordance with approval plans and the Cantonment. Board issued them a notice on 25‑4‑1988 which went unanswered. Thereafter, the plaintiffs submitted on 21‑12‑1988 a revised plan of the building alongwith notice under section 179 of the Cantonments Act, 1924 which was returned on 28‑12‑1988 by the Board with the following remarks:‑‑ (i) You have not complied with this office notice No.B‑4/The Mall/L/5363 dated 25‑4‑1988; (ii) The site plan does not tally with the existing approval plan; (iii) The plan has not been drawn according to scale 1" = 8' as per building bye‑laws of the Cantt. Board. (iv) The plan has not been attested by Cantt. Boards' approved architect. (Exh.D‑2). The plaintiffs re‑submitted the plan on 31‑12‑1988 and the Board referred the notice, dated 21‑12‑1988 to the Military Estate Officer for action on their part under section 181(3) of the Act. The M.E.O. returned the plan on 22‑2‑1989 (Exh.P.6). The General Headquarter in the meanwhile took notice of the unauthorized construction being carried out by the plaintiffs and the Station Headquarter on G.H.Q: s advice asked the Military Estate Officer vide letter, dated 30‑11‑1990 (Exh.D‑6) not to allow any construction on the site and to withhold processing of revised plan and to "please ensure that additional construction is not allowed without obtaining prior N.O.C. as well as clearance of the plan from this H.Q. and G.H.Q." After issuance of this warning the plaintiffs wrote a letter to the Board on 16‑5‑1990 (Exh.P.W.l/1, Exh.D‑5) which reads as:‑‑ The Board informed the Military Estate Officer on 27‑5‑1990 (Exh.D‑7):‑‑ "The lessee of the subject property has requested to this officer vide application, dated 16‑5‑1990 (Copy enclosed) that after grant of N.O.C. for the construction of the storeyed building, he shall submit revised plan for approval and offence, of unauthorised construction regulation on payment of composition fee. In view of the application, it is requested that necessary N.O.C. may please be obtained from Military point of view." The G.H.Q. also asked the Station Headquarter on 14‑7‑1990 (Exh.D‑8) not to approve any revised plan whereby any addition (2 x storey) is involved without having clearance from this H.Q. The plaintiffs however kept quiet and did nothing to obtain N.O.C. from the General Headquarter as advised by the Military Estate Officer, in his letter dated 22‑2‑1989 and as stated by them in their letter to the Board (Exh.P.W.l/1). Later on, 25‑4‑1991 they gave a notice to the Cantonment Board and after fifteen days, the plaintiffs assumed that sanction of their plans submitted on 31‑12‑1988 was deemed to have been given. Now, the word "deem" has a special connotation in law. Employment of this word would result in assumption of existence of a scenario which in fact does not exist. It was held in Mehreen Zaibun Nisa v. Land Commissioner PLD 1975 .SC 397 (434). When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist but by a legal fiction we are to assume as if it did exist. Where the statute says that you must imagine that state of affairs it does not say that having done you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that affairs. At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the legislature has created the fiction. When a statute erects that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. "Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan 1993 SCMR 1905 (1924). Deeming clause‑effect‑when a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction court has to assume as if it did exist." The deeming clause has to be construed strictly since the legislature employs it for a limited purpose.

11. The question would arise whether the material on record would substantiate plaintiffs claim that notice served by them was a valid one or that in pursuance to a valid notice given by plaintiffs their pans were deemed to be sanctioned. Section 180 of the Act prescribes, conditions of valid notice and reads as under:‑‑ "(1) A person giving the notice required by section 179 shall specify the purpose for which it is intended to use the building to which such notice relates. (2) No notice shall be valid until the information required under subsection (1) and any further information and plan which may be required under bye‑laws made under this Act have been furnished to the satisfaction of the (Board) alongwith the notice." Then under section 181 of the Act, the Cantonment Board may either refuse to sanction or may sanction erection or re‑erection of a building conditionally or absolutely. The plans for erection and re‑erection of a building, have to cross the threshold of section 181(2) as well as section 181(3) of the Act, in that the plans have to be in conformity with a general scheme sanctioned by Officer Commanding‑in‑Chief and besides that the Military Estate Officer should also raise no objection qua the plans. As noted above, the plans submitted by the plaintiffs were sent by the Board to the Military Estate Officer who returned the same by letter dated 22‑2‑1989 (Exh.P‑6). The Military Estate Officer though signalled "No Objections" from land's point of view but stated in para 2:‑‑ "The notice dated 21‑12‑1988 under section 179 of the Cantonments Act, 1924 and building plan received with your letter under reference are returned herewith which should be considered after clearance from Q.M.G. from Military point of view as directed by them vide para. 2 of their letter No.3641/145/49/QMG, dated 12‑10‑1982, a copy whereof is enclosed for perusal and record." The. M.E.O., it would be seen, had also not given categorical approval and had asked the Cantonment Board to consider the plan after No‑Objection Certificate is issued by the Military Authorities. The plaintiffs apparently did not attempt to obtain N.O.C. from the Military authorities but later by letter, dated 16‑5‑1990 (Exh.P.W.l/1 and Exh.D‑5) stated that they had submitted plans for erection of 10 storeys of Al‑Amin Plaza and that after getting N.O.C. from the Station Headquarters, they would submit revised plans. Admittedly till the time of giving of notice, the plaintiffs did not submit any revised plans. Here another factor may be taken note of. The suit was set down for arguments before the lower Court when the plaintiffs moved an application on 12‑2‑1994 to admit a document which was a letter No.31/15/Lands/ML&C/80/162/D‑12 dated 11 January, 1994 and may be reproduced for ready reference. To The Cantt. Executive Officer, Rawalpindi Cantonment. Sub: RAWALPINDI CANTT. CONSTRUCTION OF AL‑AMIN PLAZA THE MALL Reference your letter No.B.4/The Mall/L/356, dated 31‑10‑1993. The case has been considered by the Government of Pakistan in the Ministry of Defence. I am directed to advise to compromise the case under provisions of rules and clear the building plans of the applicant if these conform to the building bye‑laws and subject of the following conditions:‑‑ (a) that, the structural soundness of the building to take the load of additional floors may be examined and certified by qualified engineers; (b) to ensure that car parking as suggested by the lessee in his application on 4th floor is duly provided; (c) that the lessee shall notify to the Board completion of every floor for inspection before proceeding with further construction. (d) that the lessee shall render an undertaking to the effect that the areas specified for parking purposes will not be used for any other purpose. (Sd.) (Nazir Ahmad Nasim), Section Officer, Government of Pakistan Tel. 568975/RWP Copy to Sh. Muhammad Saeed with reference to his application dated 9‑9‑1993. A perusal of this letter would reveal that almost till conclusion of hearing of the suit, the plaintiffs, had not submitted revised plans of the building conforming to various bye‑laws of the Board. The authorization given by the G.H.Q. for commercialization of the plot (Exh.D.16) would show that the plans had to be approved by the G.H.Q. and in the absence of a certificate from the Military Authorities, the Cantonment Board could not have proceeded with the matter.

12. In view of the foregoing discussion, it is held that the plaintiffs themselves undertook to submit revised plans and also to obtain N.O.C. from the Military Authorities but they never did that. The land was held by them on lease from the Cantonment and they were required to show under section 181(2) (by getting an N.O.C. from G.H.Q.) that the building plans were not violative of the scheme sanctioned in this behalf by the Officer Commanding -in‑Chief, but despite having undertaken to do that, they never obtained N.O.C. from the Military Authorities. The Military Estate Officer had also not given a clear certificate under section 181(3) of the Cantonment Act, 1924. As such notice given by the plaintiffs on 25‑4‑1991 without complying with all requirements of the law and without meeting their undertakings was not a valid notice and question of any sanction as deemed to have been given in pursuance to an invalid notice did not arise at all. The learned Additional District Judge had not considered the material on record in true perspective and had mis-appreciated and misapplied the law on the subject.

13. The plaintiffs had asserted that a N.O.C. from the Military Authorities was not required for sanctioning of their plans. But the original authorization dated 12‑10‑1982 (Exh.D‑16) and subsequent directives of the G.H.Q. or the Station Headquarters Exh.D‑6, D‑8, D‑9 and D‑19, whereby the M.E.O. or the Cantonment Board were asked not to process the case of the plaintiffs, were never challenged by the plaintiffs nor any injunction was sought against the Military Authorities. If the plaintiffs had succeeded in raising any construction under the so‑called "deemed sanction", the Military authorities would have been fully competent to invoke the provision of sections 52 and 185(2) of the Cantonment Act, 1924 to demolish the construction raised without their approval. Under the Cantonments Act, the Military authorities are the final arbiters in matter of erection/re‑erection of the buildings. They are competent to frame a general scheme of buildings or roads to be built in Cantt. Areas keeping the defence needs in view. The competent authority is fully empowered to see that any particular building to be constructed conforms to the general scheme so framed and the Act also empowers the competent authority to enforce its writ in this regard and this extends to demolishing a construction which has not been duly authorised by the competent authority. The learned Additional District Judge failed to examine and note the true scope of powers of the Military authorities and over‑simplified the matter by considering that they do not figure in the entire scheme of things relating to sanction or disapproval of building plans. This view obviously is not correct. The appellate judgment proceeded on wrong assumption of facts and total misconception of the law and accordingly findings of appellate Court on Issues Nos. 3 and 4 are set aside.

14. For the foregoing reasons, the civil revision petition is accepted arid judgment and decree passed by Additional District Judge, Rawalpindi are set aside. Suit filed by the plaintiffs would, resultantly, stand dismissed. The parties shall bear their own costs in view of the judgment of Courts below being at variance. A.A./C-50 Revision accepted.