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Hari Narain Lal Sah (Dead) Ram Rati Devi and Others V/S Cantonment Board and Another.

    S.A. No. 175 of 1972

    Decided On, 02 August 1977

    At, High Court of Judicature at Patna

    By, THE HONORABLE JUSTICE: NAGENDRA PRASAD SINGH AND THE HONORABLE JUSTICE: P.S. SAHAY

   



Judgment Text


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 jurisdictio

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n 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 validity 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.

4. Sub-section (1) of Section 185 of the Act as amended by Act II of 1954 is as follows:

185 (1)A Board may, at any time by notice in writing, directed 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 any 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 Section 144, within twelve months of the completion of such erection or re-erection in like manner direct like the alteration or demolition as it thinks necessary, or building or any part thereof, so erected or re-erected:

Provided that the Board may, instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable:

Provided further that the Board shall not, without the previous concurrence of the Officer Commanding in-Chief, the Command, accept any sum by way of composition under the foregoing proviso in respect of any building on land which is not under the management of the Board.

On a plain reading this sub-section conceives two situations and vests two types of power in the Board. The Board may, at any time, by a notice In writing, direct the owner, lessee or occupier of any land to stop erection or re-erection of the building in any case in which the Board considers that such erection or re-erection is an offence under Section 184. The other part of that very sub-section vests power in the Board, if it considers such erection or re-erection of a building as an offence under Section 184, to direct alteration or demolition thereof within twelve months of the completion of such erection or re-erection. Now the question which needs to be answered is as to whether this power can be exercised only when the erection or re-erection is over the land, which the persons concerned is holding as owner, lessee or occupier or even in cases where the person concerned has erected or re-erected the building in question over someone else's land including that of the Board. In this connection, certain other sections have to be considered. Section 198A of the Act is as follows:

178A. No person shall erect or re-erect a building on any land in a cantonment, except with the previous sanction of the Board, nor otherwise than in accordance with the provisions of this Chapter and of the rules and bye-laws made under this Act relating to the erection and re-erection of building.
It provides a blanket ban over right of any person to erect or re-erect a building in a cantonment, except with the previous sanction of the Board. Section 179 defined as what will amount to erection or re-erection of a building. Clauses (a' to (g) of Sub-section (2' of Section 179 covers case of all material alteration or enlargement of any building which increases the area covered by it. Learned Counsel appearing for the appellant had to concede that the construction in question will be deemed to be erection or re-erection of the building within the meaning of this sub-section. In view of these provisions, there cannot be any doubt, that before making the constructions in question, the plaintiff was required to take previous sanction of the Board. It is an admitted position that a prayer for sanction for the construction was made on behalf of the plaintiff, which was rejected by the Board and the said rejection was communicated to the plaintiff on 11.8.1965. In such a situation, it has to be held that the construction in question had been made by the plaintiff without obtaining previous sanction of the Board, and as such, it was in contravention of Section 178A read with Section 179 of the Act.

5. Section 184 of the Act says that whoever begins, continues or completes the erection or re-erection of a building without having given a valid notice as required by Sections 179 and 180, or before the building has been sanctioned or is deemed to have been sanctioned, shall be punishable with fine which may extend to five hundred rupees. As the plaintiff had made the construction without there being a valid sanction he was liable to be punished under Section 184 of the Act. I have already pointed out that Sub-section (I) of Section 185 is applicable whenever any erection or re-erection is an offence under Section 184 of the Act In such a situation, in my opinion, the Board has perfectly within its jurisdiction in issuing the notice to the plaintiff.

6. In the courts below there was some dispute as to whether the notice had been given within twelve months of the completion of such construction. Both the courts have recorded a finding that it was so done. In view of that finding that the notice was given within 12 months of the completion of the construction in respect of erection or re-erection, which was an offence within the meaning of Section 184, a notice in accordance with second part of Section 185, directing the plaintiff to demolish that portion could have been validly given.

7. Learned Counsel appearing for the appellant in support of his contention that this power can be exercised, if the construction had been made without proper sanction over land of which the person concerned was owner, lessee or occupier and Section 185 of the Act is not applicable when the construction has been found to have been made over land belonging to the Board, placed reliance on an observation of the Supreme Court in the case of the Cantonment Board, Meerut v. Narain Dass (dead) and Anr: [1970]1SCR240 . The Supreme Court in the aforesaid judgment was considering the respective scope of two sections, Section 185 and Section 187 of the Act, and in that connection it was observed that while Section 185 deals with erection or re-erection of building on private lands Section 187 deals with construction of projections encroaching on any street or drain or aqueduct. In my opinion, the aforesaid decision is of no help to the appellant. Once any erection or re-erection has been found to have been made without prior sanction, in view of Sections 178A 179, and 184 of the Act, referred to above, it becomes an offence punishable in accordance with the provisions of the Act and under Sub-section (1) of Section 185, the Board can direct demolition or alteration within twelve months of the completion thereof. For that it is immaterial whether such erection or re-erection has been made over one's own land or over land belonging to someone, else. The words "A Board may at any time by notice in writing direct the owner, lessee or occupier of any land in the cantonment to stop erection or re-erection of a building "have to be construed to mean that the notice has to be given to owner, lessee or occupier of any land in the cantonment. The plaintiff is admittedly the owner of house No. 40 which is within the cantonment and he was making construction in that house which has encroached upon some portion of the land belonging to the Board. The steps under Section 184 are not primarily for removal of the encroachment, but for demolition or alteration of any erection or re-action which is not in accordance with the provisions of the Act. In this view of the matter, in my opinion, there is no substance in the contention of the Learned Counsel that Section 185 is not the provision for removal of the encroachment over the land belonging to the Board or to the Central Government.

8. Learned Counsel appearing for the appellant has also submitted that notice (Ext. C) was ambiguous and vague because it has recited all the three expressions, 'alter, demolish, remove.' This point was never urged before the courts below. Nonetheless, we have looked into the notice. It gives the details of the area over which the unauthorized construction stands and stated that it was a notice under Section 185(1) of the Act and the appellant should alter, demolish or remove the aforesaid illegal erection or re-erection within thirty days from the date of the receipt of the notice. In my view, there is no vagueness in that notice and perhaps that was the reason why the appellant never made any grievance about the same. He filed an appeal in accordance with the provisions of the Act, and thereafter, the present suit.

9. Learned Counsel appearing for the appellant then submitted that all unauthorised constructions need not be demolished and sometime a compassionate view can be taken and in this connection he referred to a Bench decision of Madras High Court reported in Commissioner, Pattukottai Municipality v. Chandrasekaran (minor) A.I.R. 1976 Mad. 50. In that case learned single Judge, who had heard the writ application, had restrained the Municipality from demolishing the building in question. In a Letters Patent Appeal against the judgment, their Lordships, while accepting the contention raised on behalf of the Municipality that it had power to direct demolition of the building in question, did not interfere with the exercise of the discretion by the learned single Judge because it was found that while constructing the building, rules had not been contravened. It was left open to the Government, which was the affected party, to take any suitable steps in the matter. In my view, that course is not open to us in this appeal. Proviso to Sub-section (1) of Section 185 itself provides that the Board may instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable. This is for the Board to consider and not for us.

10. Accordingly, I hold that there is no merit in this appeal, which is dismissed. In the circumstances of the case, however, there will be no order as to costs,

P.S. Sahay, J.

11. I agree
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