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PETITIONER: CANTONMENT BOARD, MEERUT

       Vs.

RESPONDENT: NARAINDAS & ANR.

DATE OF JUDGMENT: 09/04/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1970 AIR  105            1970 SCR  (1) 240  1969 SCC  (2) 125

ACT: Cantonments  Act  (2 of 1924), ss. 185  and  187-Kiosk  over drain  belonging to Cantonment Board-Direction  for  removal eighteen  years  after its  construction-Competency  of  the Board.

HEADNOTE: Section  185  of the Cantonments Act, 1924, deals  with  the erection  or re-erection of buildings on private  lands  and the  Cantonment  Board  is given the  power  to  direct  the alteration  or demolition of such a building  within  twelve months  of  the  completion  of  erection  or   re-erection. Section 187 deals with constructions, which are  projections or  structures, encroaching on any street, drain,  sewer  or aqueduct.  The Cantonment Board has the right to direct  the demolition  of  such  structures under s.  187,  within  the period  of  limitation for suits for  possession  of  public streets or roads, that is, within 30 years from the date  of encroachment. In the present case, the owner of a shop constructed a stone projection over the drain belonging to the Cantonment Board, after  obtaining  permission  of the  Cantonment  Board,  to facilitate approach to his shop.  But, without obtaining the permission of the Cantonment Board, he put up a kiosk on the stone  projection  , which thus encroached  upon  the  drain belonging  to  the Cantonment Board.   The  Board,  eighteen years  after the construction, directed the removal  of  the kiosk under S. 187. On the question whether s. 185 or s. 187 applied. HELD  :  The act complained of fell within the scope  of  s. 187,  because, the permission given by the Board to  put  up the stone projection did not confer on the owner of the shop any  proprietary right over the drain but merely gave him  a licence.   As  the action of the Board was within  30  years from  the date of encroachment, the Board was  competent  to get the kiosk removed. [242 A; 243 A-B, E-F] [Whether  the Board could take action even after the  period of limitation of 30 years, left open]. [243 E]

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JUDGMENT: CIVIL APPELLATE JURISDICTION.- Civil Appeal No. 747 of 1966. Appeal  by special leave from the judgment and  order  dated February  2,  1965  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 Hegde  J.,, The only question arising for decision  in  this appeal  by special leave is whether the notices impugned  in these pro- 241 ceedings  are  governed  by s. 185(1) or s.  187(1)  of  the Cantonments Act, 1924.  The trial court held that s. 185 (1) is  the  governing  provision.  The  first  appellate  court differed from it. and held that s. 187(1) governs.  The High Court  in  second appeal has restored the  decision  of  the trial court. The  respondent  is  the owner of shop No.  344  in  Mohalla Bakri, Lal-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  construction of that shop permission was obtained  from the Cantonment Board to put up, a stone projection over  the drain  by  the  side of the Toad 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 years prior to  the institution  of  the suit, the owner of the shop, put  up  a wooden kiosk over the stone projection and the same is being used  as  a  pan shop.  According to the  finding  of  those courts  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 -given to him on December 8,  1953. Thereafter  the owner of’ the shop instituted the suit  from which this appeal has arisen seeking 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  18  years prior  to the issue of the notices referred to earlier,  the Cantonment  Board  cannot compel its removal in view  of  s. 185(1).  This decision was reversed by the learned  District 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, years prior to the date of  the  suit but yet according to him it was competent for the Cantonment Board to get the same removed under s. 187(1).  The  learned District Judge opined that s. 1 85 (1 ) has no relevance  to the  facts  of the case.  In second appeal. the  High  Court agreed  with  the  conclusion of the trial.  court  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 constructed   over  the  drain  adjoining  the  road   after obtaining the permission of the Cantonment Board.  It cannot be  disputed  that the. property in the road  including  the drain  statutorily  vests  in  the  Cantonment  Board.   The permission,  given by the Cantonment Board to the  owner  of the shop to put up the projec-

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242 tion  does not confer on him any proprietary right over  the drain. It merely gives him a licence to use the  projection. He  cannot  exclude the public from using  that  projection. The  kiosk had been put up without obtaining the  permission of  the Cantonment Board.  The kiosk is a structure  and  it projects  or  encroaches  upon the drain  belonging  to  the Cantonment  Board.  It can even .be said that  it  overhangs the  drain.   We have now to examine ,the provision  of  law applicable bearing in mind those facts. Section 185(1) reads :               "A  (Board)  may, at any time,  by  notice  in               writing  direct the owner, 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 (Board) considers that  such               erection  or re-erection is an  offence  under               section  184, and may in such case (or in  any               other  case in which the Board considers  that               the  erection or re-erection of a building  is               an  offence  under  S.  184,  within   (twelve               months) of the completion of such erection  or               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  section  applies  only to cases where  a  building  is erected or reerected over a land belonging to someone  other than  the Cantonment Board.  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 this case  were  not given  to  the owner, lessee or occupier 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 Cantonment Board.  Neither the owner of shop No. 344 or  its occupier  can  be considered as a lessee of  the  land  over which  the  projection was put -up.   Hence  the  provisions contained  in  s. 185(1) are not attracted  to  the  present case.               This’ takes us to s. 187(1).  It reads               "  No owner or occupier of any building  in  a               cantonment  shall, without the  permission  in               writing of the               the  (Board)  add to or place  against  or  in               front  of  the  building  any  projection   or               structure  overhanging,  projecting  into,  or               encroaching on, any street or any drain, sewer               or aqueduct therein".                             243 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  structure.   Further it is a  projection  into  a drain.  It also encroaches 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 construction  of  projections  or  structures   overhanging,

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projecting  into or encroaching on any street, any drain  or aqueduct.      The     two     provisions     deal      with different.situations. One ha$ nothing to do with the  other. Obviously the legislature does not want the Cantonment 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 within s. 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 necessary to go  into  that controversy  in the present case.  The period of  limitation prescribed for a suit of the type referred to earlier is  30 years.   In  the  present case action under  s.  187(1)  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 appellate 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. "I V.P.S.                       Appeal allowed. 244