CANTONMENT BOARD MEERUT Vs. NARAINDAS

JUDGEMENT

(1.) The only question arising for decision in this appeal by special leave is whether the notices impugned in these proceedings are governed by S. 185 (1) or Section 187 (1) of the Cantonments Act, 1924. The trial Court held that Section 185 (1) is the governing provision. The first appellate court different from it and held that Section 187 (1) governs. The High Court in second appeal has restored the decision of the trial Court.

(2.) 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 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 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 Section 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 Section 187 (1). The learned District Judge opined that Section 185 (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 Section 185 (1) is the Governing provision.

(3.) 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 statutorily vests in the Cantonment Board. The permission, given by the Cantonment Board to the owner of the shop of 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 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 not to examine the provision of law applicable bearing in mind those facts.