Cantonment Board, Meerut Vs. Naraindas
& ANR  INSC 106 (9 April 1969)
09/04/1969 HEGDE, K.S.
CITATION: 1970 AIR 105 1970 SCR (1) 240 1969
SCC (2) 125
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.
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
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
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
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]
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
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 there from. 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 projection 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
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 (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, 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.