RAM NARAYAN LAL SHAW Vs. DINAPORE CANTONMENT BOARD

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for a writ in the nature of certiorari and prohibition to quash the order dated 7th March 1955, on the ground of illegality and lack of jurisdiction. By virtue of the power vested in it under Section 126 of the Cantonments Act, 1924, the Cantonment Board, Dinapore, served the petitioner with a notice dated 20th August 1953, asking him to remove his bungalow No. 24, Mahal No. 1, Ward No. 4 of the Dinapore Cantonment on the ground that it was in a ruinous state on the pain of his prosecution under Section 268 of the said Act. From this order the petitioner took an appeal on 18th September 1953, to the appellate authority under Section 274 of the Act. Twice dates were fixed for the hearing of the appeal, but the petitioner did not appear on one ground or the other. Eventually, this application was heard in his absence. The officer empowered to hear the appeal also held local inspections and examined the records of the entire case, and on being satisfied that the bungalow was in a ruinous state, he by his order dated 7th March 1955, maintained the notice of removal served upon the petitioner. Then, the present application was filed.

(2.) Mr. Chhatrapati Kumar Sinha, appearing for the petitioner contended that the order of the Cantonment Board and of the appellate authority directing removal of his building was ultra vires and without jurisdiction. This contention is based upon the provisions of Section 126 of the Cantonments Act. He urged that this section did not empower the Board to direct removal of any building solely on the ground that it was in a ruinous state. Apart from being in a ruinous state, the building must also be a nuisance or dangerous to persons passing by or dwelling or working in the neighbourhood. If it was not either a nuisance or dangerous to persons, Section 126 did not grant the Board an authority to remove or demolish any building even though in a ruinous state. In my opinion, this contention has no force and cannot prevail. The plain wording of Section 126 does not warrant such a construction. It reads as follows:--

(3.) It was next contended by him that the order to demolish the entire building was illegal, because only the southern portion of the building was out of repairs. He referred to his application and contended that the petitioner's averment that the building was partially ruinous was not controverted by the other side. It will be noticed that the order of the appellate authority is based not only upon records and evidence before it but also upon local inspection which disclosed that the building as a whole was in a ruinous state. There was, therefore, sufficient refutation of this allegation in the record, and there is no further proof of the building being only partially out of repairs. Apart from this, partial damage to the building may afreet the whole building and render the entire building uninhabitable or dangerous to the people living in the vicinity. After all, it is a question of subjective satisfaction of the Cantonment Board. It is for the Board to consider whether in its opinion the building was in a ruinous state, and if the Board has formed the opinion that the building is in a ruinous state, then in the absence of sufficient material on the record it is difficult to say that that opinion is based upon no evidence so as to deprive the Board of its jurisdiction to order removal. In my opinion, there is no substance in this contention either.