HARI NARAIN LAL SAH Vs. CANTONMENT BOARD

JUDGEMENT

(1.) Plaintiff is the appellant in this second appeal. He filed a title suit in the court of learned Munsif Second Court Patna on the allegation that he is the owner of House No. 40 in Mahal No. 2 Ward No. 6 within Dinapore Cantonment, details whereof have been mentioned in schedule of the plaint. It is his further case that on the back portion of the said house there was a platform about 3 feet in height from the western ground level having a thatched osara which was being used as latrine In May and June, 1965, after demolishing the old structure, the plaintiff claimed to have reconstructed the walls over the aforesaid platform for his use. The plaintiff received a notice dated 16.6.1966 in connection with the alleged construction on the platform issued by the Cantonment Board, Dinapore Cantonment (hereinafter to be referred to as the 'Board') constituted under the provisions of the Cantonments Act, 1924 (hereinafter to be referred to as the 'Act') asking the plaintiff to demolish the construction in question. According to the plaintiff, that notice (Ext. C) was served on him on 26.6.1966. The plaintiff filed an appeal against the aforesaid order before the Officer Commanding-in-Chief, Central Command, Lucknow. The appeal was, however, dismissed. Thereafter, the aforesaid suit was filed for a declaration that the Board has no jurisdiction to issue the impugned notice asking the plaintiff to demolish the constructions in question. A prayer for permanent injunction was also made against the defendants restraining them from demolishing the construction in question.

(2.) Learned Munsif, on a consideration of the materials on the record, held that the notice given under Section 185(1) of the Act was a valid notice in view of the fact that the plaintiff had made the constructions without prior sanction and over the land belonging to the Board. On the aforesaid findings, the suit of the plaintiff was dismissed. The appeal filed on behalf of the plaintiff was also dismissed by learned Additional Subordinate Judge, Patna, who affirmed the findings of the trial court; hence this second appeal.

(3.) Learned Counsel appearing on behalf of the appellant has challenged the validily of notice dated 16.6. 1966 which had been issued in purported exercise of the power conferred on the Board under Sub-section (1) of Section 185 of the Act. According ?o the appellant, the power under Sub-section (1) of Section 185 of the Act can be exercised by the Board if any unauthorized construction is made by the owner, lessee, or occupier of any land within the Cantonment area. As in the instant case, the encroachment and construction has been held to have been made on the land belonging to the Board, the provisions of Section 185 are not attracted. It has been further submitted that this case will not be covered even by Section 187 of the Act which is applicable only in cases where owner or occupier of any building in Cantonment without the permission in writing of the Board makes any projection over street or drain. It is true that the court of appeal below has recorded a finding in paragraph 12 of its judgment that the illegal construction which had been made by the plaintiff was on the land of defendant No. 1, i. e., the Board, and Learned Counsel appearing for the Board has also admitted that the constructions had been made on land of which the appeal and was neither the owner, lessee or occupier. But, the question is as to whether merely because of this the jurisdiction of the Board is outside to issue notice in purported exercise of the power conferred on it by Section 185 of the Act.