Cantonment Board, Meerut v. Naraindas & Anr.

Hegde J., The only question arising for decision in this appeal by special Leave is whether the notices iinpugned in these pro-ceedings are governed bys. 185(1) ors. 187(1) of the Canton-ments Act, 1924. The trial court held that s. 185 (1) is the aoveming provision. The first appellate court differed from it ~nd held that s. 187 ( l) governs. The High Court in second appe:1l has restored the decision of the trial court.

13 The respondent is the owner of shop No. 344 in Mohalla

Bakri, La!-Kurti Bazar, Meerut Cantt. The shop in question was constructed about 20 years before the institution of the suit from which this appeal arises. At about the time of the construc-tiOll of that shop permission was obtained from the Cantonment Board to put up a stone projection over the drain by the side of the road in front of the shop to facilitate ingress into the shop and egress therefrom. The first appellate court has found and that finding has been accepted by the High Court that about 18 year<: prior to the institution of the suit, the owner of the shop put up a woockn kiosk over the stone projection and the same is being used as a pan shop. According to the finding of those couns the kiosk in question was put up without obtaining the permission of the Cantonment Board. On November 9, 1953, the Cantonment Board issued a notice to the occupier of shop No. 344 under s. 187, requiring him to demolish and remove the kiosk within 7 days from the receipt of that notice. As that demand was not complied with, a final notice under s. 187 was 11-iven to him on December 8, 1953. Thereafter the owner of the shop instituted the suit from which this appeal has arisen seek-in~. a perpetual injunction restraining the Cantonment Board from getting the kiosk removed. As mentioned earlier, the trial court decreed the suit holding that as the kiosk had been put up 1S years prior to the issue of the notices referred to earlier, the Can-tonment Board cannot compel its removal in view of s. 185(1). Thi<: decision was reversed by the learned Dis~rict Judge in appeal. The learned District Judge accepted the finding of the trial court that the kiosk in question had been put up about 18 year<, prior to the date of the suit but yet according to him it was competent for the. Cantonment Board to get the same removed undcr s. 187 (l). 'The learned District Judge opined that s. 185 ( I ) has no relevance to the facts of the case. In second appeal. the High Court agreed with the conclusion of the trial cour1 that s. 185 ( 1) is the governing provision.

The established facts are :-Shop No. 344 was constructed on the land belonging to the respondent. Cantonment Board had no right in or over that land. The stone projection was construct-ed O\'er the drain. adjoining the road after obtaining the permis-sion of the Cantonment Boacd. It cannot be disputed that the property in the road including the drain statutorily vests in the C3nlonment Board. The permission. given by the Cantonment Bc3rd to the owner of the shop to put up the projec-tioa does not confer on hiin any propriet~ry right over the drain. It merely gives him a licence to use the projection'. He cannot exclude the public from using that -m:_ojection, The kiosk had been put up without obtaining the permissjon of the Cantonment Board. The "kiosk is a stnicture and it projects or en9roaches upon the drain belonging 'to the Cantonment Board. It can even be said that it •overhangs the drain. We have riow· to examine the provision of Jaw applicable bearing in mind those. facts.

Sectioµ 18'5 (1 ) reads :

"A (Boa.rd) may, at any iime, by notice in writing direct the owner, lessee or occupier of any' lan<l in the cantonment to stop the erection or re-erection of a building in any ca.se in which the (Board) considers that such erection or re-erection is an offence under sec-tion 184, and may in su€h case (or'in any other case in I which the Board considers that the erection or re-erec-tion of a building is an offence under ~- 184, within (twelve months) of the completion of such erectic'l or J re-erection) "in like manner direct the alteration or demolition as it thinks ~necessary, of the building or any part thereof, so 'erected or re-erected."

We are unable to agree with the High Court that this section applies to the facts of the present case. In our judgment that I sectjon applies only to cases where a building is erected or re-erected over a land belonging to someone. other than the Canton-j ment B0ard. That is why that section says that a -notice under that section can be given "to a owner, lessee or occupier of any land". A notice under that section cannot be given to any person other than the owner or lessee or the occupier of the land over which the building in question had been erected or re-erected. The notices with which we are concerned in (his case were not given to the owner, lessee or occupii;r of the land over which kiosk is put up. As seen earlier the kiosk has been constructed over the land under the ownership of the C~ntonment Board. Neither the owner of shop No. 344 ·or its occupier can be con-sidered as a lessee of the land over which the projection was put up. Hence the provisions contained in s, 185 (I) are not attract-ed to the present case.

This takes, us to s. 187 ( 1). It reads : j

"No owner or occupier of any building in a canton-ment shall, with0ui the permission in writin~ of the the (Board) add to or place agains.t or in front of the building any projection or structure overhanging, pro- .iecting into, or encroaching on, any street or any drain,_ sewer or aqueduct therein',',

This section deals with constructions which are projections or structures overhanging, projecting into or encroaching on any street or any drain, sewer or aqueduct. Undoubtedly the kiosk is a structure. Further it is a projection into a drain. It also en-croaches on the drain if it does not also overhang it. Therefore the act complained of clearly falls within the scope of s. 187(1).

In other words s. 185 deals with erection or re-erection of buildings on private lands whereas s. 187 deals with the construc-tion of projections or structures overhanging, projecting into or encroachmg on any street, any drain or aqueduct. The two pro-visions deal with different situations. One ha~ nothing to do with the other. Obviously the legislature does not want the Canton-ment Board to demolish buildings erected on private lands after the period mentioned in s. 185(1) but public interest requires that no such limitation should be placed on the Cantonment Board while acting under s. 187 (1). Otherwise our streets and roads may soon disappear. The High Court missed the distinction between s. 185 (1) and s.· 187 (1). Quite clearly the present case falls withins. 187(1).

Judicial opinion is divided on the question whether local Boards can take action under provisions similar to s. 187 even after the period of limitation for filing suits by those bodies for possession of public streets or roads or parts thereof or on which they have discontinued their possession, expires. It is not neces-sary. t~ g? into tha! controversy _in the present case. The period ot llm1tatton prescnbed for a smt of the type referred to earlier is 30 years. In the present case action under s. 187 (!) had been commenced within 18 years from the date of the encroachment.

For the reasons mentioned above this appeal is allowed and decree of the High Court is set aside and that of the first appel-late court restored. '

Now coming to the question of costs, at the time of granting special leave this Court had directed that the appellant shall pay the costs of the respondent in any event. We incorporate that order as a part of this judgment.

CIVIL APPELLATE JURISDICTION: Civil Appeal-No. 747 of 1966 ..

·Appeal by special leave from the judgment and order dated February 2, 1~65 of the Allahabad High Court in Second Appeal No. 2097 of 1958. · · ·

C. B. Agarwala and 0. P. Rana, for the appellant.

P. N. Bhardwaj, for respondent No. 2. __ The Judgment ·of the Court was delivered by