# Narendra Giri Mahant v. Union of India & Ors

- **Citation:** (2020) 1 ILRA 1281
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Writ C No. 65211 of 2009
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-giri-mahant-v-union-of-india-ors-45171
- **Pages:** 24

## Headnote

A. Sanction - Cantonments Act, 2006 - No
development activity in the form of
erection or re-erection of the building,
even in respect of area in occupation of
civilian if the land falls in the cantonment
area, can be carried out except with the
prior sanction of competent authority.

This implies that even in cases where there are
temples in the defence area and are in
occupancy of civilian or math or mahant for
that matter, such math or mahant or civilian
cannot carry out or undertake any exercise of
erection or re-erection of the temple structure
eve within the temple premises except with
prior sanction of the competent authority under
the Cantonment Act, 2006. The permission so
granted in the present case in the year 2004
will automatically deemed to have seized with
enforcement of the Cantonment Act, 2006.
(Para 43 and 47)
Editor's note
The High Court has settled the legal position
with respect to the right of an individual private
person to raise construction over the land or in
respect of building which is recorded in the GLR
as a private land/building in occupation of a
private individual either under lease or grant or
mere occupancy before and after coming into
force of Cantonments Act, 2006. Prior to the
enforcement of Act of 2006, erection or reerection of building in civil area requires
sanction by the Cantonment Board, otherwise
penal consequences follow (Sections 178A and
179 of Act of 1924). Pursuant to which vide
letter dated 06.03.2004 the Board has granted
permission/sanction to the Mahant of temple to
carry out renovation or repair works only. The
letter dated 06.03.2004 which is only a onetime measure cannot be read as to include the
permission/sanction by the Board to raise new
structures in the temple premises.
The Act of 2006 has widened the powers of the
Board and authority designated thereunder.
Now, the building erection or re-erection
includes
any
material
alterations
or
enlargement of any building and its existing
structure. The Board has power to sanction the
work of erection or re-erection which shall be
valid for 2 years only from the date of sanction,
extended only upon sanction by the Board.
Penal consequences will be attracted in case of
1 All. Narendra Giri Mahant Vs. Union of India & Ors.
1283
illegal erection or re-erection. This implies that
even in respect of area in occupation of civilian
if the land falls in the cantonment area then no
development activity in the form of erection or
re-erection of the building can be carried out
except with prior sanction of the competent
authority.
That even though the Board via letter dated
06.03.2004 has granted permission/sanction to
repair and renovate the temple and not to raise
new structures in it thereby invalidating all the
permanent
or
temporary
structures
built
beyond the temple premises (4335 Sq.Ft. as
given in GLR and verified by spot inspection) ,
automatically becomes inoperative after the
enforcement of Act of 2006.
Writ Petition disposed of. (E-10)
List of cases cited: -

## Text

_Characters 0–39,815 of 77,709. This is a partial read: ask again with offset=39815 for what follows._

1282 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It is also pertinent to mention
here that the petitioner is not entitle to any
parity with the case of Khajan Singh as the
principle of parity is not applicable where
the benefit has been extended contrary to
the law. There are no pleadings to the
effect that the aforesaid Khajan Singh was
given
the
benefit
of
the
aforesaid
Government Order as per law.

14. In view of the aforesaid facts and
circumstances, we do not find any merit in
this
petition
for
exercising
the
discretionary jurisdiction not even for
directing to consider the representation of
the petitioner.

15. Accordingly, the writ petition is
dismissed with liberty to the petitioner to pursue
his remedy before the appropriate authority.
----------
(2020)1ILR 1281

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 65211 of 2009

Narendra Giri Mahant ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nisheeth Yadav, Sri C.B. Yadav, Sri
Anand Kumar Yadav

Counsel for the Respondents:
A.S.G.I., Sri Pramod Kumar Singh, Sri
Prashant Mathur, Sri Vinod Kumar Shukla,
Sri Satish Kumar Rai

A. Sanction - Cantonments Act, 2006 - No
development activity in the form of
erection or re-erection of the building,
even in respect of area in occupation of
civilian if the land falls in the cantonment
area, can be carried out except with the
prior sanction of competent authority.

This implies that even in cases where there are
temples in the defence area and are in
occupancy of civilian or math or mahant for
that matter, such math or mahant or civilian
cannot carry out or undertake any exercise of
erection or re-erection of the temple structure
eve within the temple premises except with
prior sanction of the competent authority under
the Cantonment Act, 2006. The permission so
granted in the present case in the year 2004
will automatically deemed to have seized with
enforcement of the Cantonment Act, 2006.
(Para 43 and 47)
Editor's note
The High Court has settled the legal position
with respect to the right of an individual private
person to raise construction over the land or in
respect of building which is recorded in the GLR
as a private land/building in occupation of a
private individual either under lease or grant or
mere occupancy before and after coming into
force of Cantonments Act, 2006. Prior to the
enforcement of Act of 2006, erection or reerection of building in civil area requires
sanction by the Cantonment Board, otherwise
penal consequences follow (Sections 178A and
179 of Act of 1924). Pursuant to which vide
letter dated 06.03.2004 the Board has granted
permission/sanction to the Mahant of temple to
carry out renovation or repair works only. The
letter dated 06.03.2004 which is only a onetime measure cannot be read as to include the
permission/sanction by the Board to raise new
structures in the temple premises.
The Act of 2006 has widened the powers of the
Board and authority designated thereunder.
Now, the building erection or re-erection
includes
any
material
alterations
or
enlargement of any building and its existing
structure. The Board has power to sanction the
work of erection or re-erection which shall be
valid for 2 years only from the date of sanction,
extended only upon sanction by the Board.
Penal consequences will be attracted in case of
1 All. Narendra Giri Mahant Vs. Union of India & Ors.
1283
illegal erection or re-erection. This implies that
even in respect of area in occupation of civilian
if the land falls in the cantonment area then no
development activity in the form of erection or
re-erection of the building can be carried out
except with prior sanction of the competent
authority.
That even though the Board via letter dated
06.03.2004 has granted permission/sanction to
repair and renovate the temple and not to raise
new structures in it thereby invalidating all the
permanent
or
temporary
structures
built
beyond the temple premises (4335 Sq.Ft. as
given in GLR and verified by spot inspection) ,
automatically becomes inoperative after the
enforcement of Act of 2006.
Writ Petition disposed of. (E-10)
List of cases cited: -

1. Chief Executive Officer Vs. Surendra Kumar
Vakil and ors (1993) SCC 555

(Delivered by Hon'ble Ramesh Sinha, J.
Hon'ble Ajit Kumar, J.)

1. Heard Sri C.B.Yadav, learned Senior
Advocate assisted by Sri Nisheeth Yadav,
learned counsel for the petitioner, Sri Parashant
Mathur,
learned
counsel
appearing
for
respondent no. 4, Sri S.K.Rai, learned counsel
for respondent no. 3 and Sri P.K.Singh, learned
counsel for respondent 1,2,5 and 6. and Sri
Ajay Singh, learned Advocate who has placed
before us the report and the survey map
prepared by Prayagraj Development Authority
today in a sealed cover. We have opened the
sealed cover in Court and have perused.
Survey map and report of measurement are
taken on record. Sri Vikas Budhwar learned
Advocate Commissioner who has submitted
joint report with Mr. Kunal Shah, learned
Advocate as directed by us, is also present.

2. The petitioner Narendra Giri
before this Court claims to be Mahant of
Sri Bare Hanuman Jee Temple just below
the bandh and in close proximity of OD
Fort, Allahabad, has approached this Court
by means of this writ petition under
Article 226 of the Constitution against the
order dated 19th November, 2009 issued
by the Defence Estate Officer Allahabad
Circle wherein direction has been issued to
Mahant
Narendra
Giri
to
remove
encroachment
consisting
of
RCC
foundation and Plinth Beam encroaching
the Defence land measuring 2404.50 Sq.
ft. within five days of the receipt of the
notice/letter/order
,
failing
which,
necessary action is to be taken against the
Mahant at his own risk and cost.

3. A detailed counter affidavit,
supplementary counter affidavit have been
filed by respondent no. 3, namely,
Deference Estate Officer, Allahabad Circle
and Chief Executive Officer, Allahabad
respectively and rejoinder affidavit and
supplementary rejoinder affidavit have
also come to be filed by the petitioner and
thus, pleadings have been exchanged in
the matter.

4. Since, encroachment was seriously
disputed by the Mahant, the rival parties have
come up with their own measurement report of
the alleged encroachment and the area in
which temple situates, this Court passed a
detailed order on 12.10.2019 directing for
survey
and
measurement
exercise
and
submission of report thereof in the presence of
the independent Advocates Commissioners, by
the Prayagraj Development Authority with the
consent of the parties. The order dated
10.12.2019 passed by us is reproduced
hereunder:

"1.
Supplementary
rejoinder
affidavit has been filed today by Sri
Nisheeth Yadav, learned counsel for the
petitioners, which is taken on record.
1284 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard Sri C. B. Yadav,
learned Senior Advocate assisted by Sri
Nisheeth Yadav, learned counsel for the
petitioner, Sri Prashant Mathur, learned
counsel for the respondent No.4 and Sri
Pramod Kumar Singh, learned counsel
appearing for respondent Nos.5 and 6.

3. In this petition, the petitioners
are
aggrieved
against
the
action
undertaken by the respondent Nos.3 and 4
by putting them to notice to remove certain
encroachments/constructions around the
main temple of Lord Mahabir (Hanuman)
in the close vicinity of the fort, on the
ground that these constructions are
unauthorized one and have been carried
out in an area which belongs to the
defence force.

4. Assailing the notice, the
argument advanced by learned counsel for
the petitioner is that it is the respondents
themselves
who
had
sanctioned
for
construction vide letter dated 06.03.2004
addressed to the Divisional Commissioner
in which the total area for which the
construction was permitted stood as 6270
sq. feet as a land belonging to the temple
and, therefore, the constructions that have
been undertaken under the authority
issued by the Defence Officer himself, the
petitioner cannot be charged for raising
any unauthorized constructions over the
defence land.

5. A counter affidavit has been
filed
in
the
matter
in
which
the
respondents have admitted vide Annexure
CA-1 issued by the Chief Executive Officer
in which qua Survey No.94/71 the total
area ad-measuring 4335 sq. feet have been
shown to be belonging to the temple of
Lord Mahabir (Hanuman) and termed as a
private land vide G.L.R. No.94.

6. The counsel appearing for the
respondents submits that the letter issued
by the authority that is being relied upon
by the petitioner was not issued by the
competent authority to grant permission to
carry
out
constructions
and,
it
is
contended, as per the Government's
United
Provinces
Notifications
dated
26.07.2016 it is the General Officer
Commanding the Division, who can grant
such sanctions. He has further taken us to
the paragraph 15 in which it has been
stated that unauthorized constructions
have come up involving an area of 619.31
sq. feet on a land comprising Survey No.93
as well which, however, has been disputed
by the petitioner in their rejoinder
affidavit.

7. Both the rival parties have
brought before this Court their own survey
map on the basis of which they claim their
respective stand to be correct. Since both
the parties have annexed the map
prepared by their own agency or authority
and they stand contrary to each other, no
definite conclusion can be drawn about the
exact area in which the temple is situate
and the area which is claimed or alleged
to be having unauthorized constructions at
the end of those who are taking care of the
temple or are managing the affairs of the
temple. In such a situation, therefore, to
arrive at a definite conclusion as to
whether the constructions have really been
carried out in violation of the Rules and
are liable to go for want of due sanction
and further to ensure as to whether
disputed constructions/encroachment is
over an area beyond 4335 sq. feet that
includes main temple, it is necessary that
in the presence of both the rival parties
and two Advocates to be nominated by this
Court,
a
survey
with
accurate
measurement of the land in question is
carried out by an independent Government
agency or its instrumentality.

8. At this stage, both the parties
agreed
for
the
survey
and
the
1 All. Narendra Giri Mahant Vs. Union of India & Ors.
1285
measurement exercise of the land in
question to be carried out by the
Prayagraj
Development
Authority
in
presence of both the parties and also the
two learned Advocates, namely, Sri Vikas
Budhwar and Sri Kunal Shah.

9. In view of the above, we are
issuing following directions:

(a) The Prayagraj Development
Authority shall undertake to carry out
measurement work through their skilled
officers, of the main temple premises
where Lord Mahabir (Hanuman) rests and
shall prepare a map accordingly.

(b) The measurement shall be
separately conducted of the area towards
the east and west of the main temple
including the constructed area with
separate details of constructed area and
the walls surrounding the open space as
well and will prepare a map with accurate
measurement accordingly.

(c) The survey and measurement
exercise will also be carried out in respect
of any temporary or permanent structure
around the temple and its premises and a
separate map thereof shall be prepared.

(d)
The
measurement
shall
clearly demarcate the main temple area,
open
area around
the
temple and
constructed area around the temple.

(e) The entire constructions
whether permanent or temporary around
the main temple and the vacant land will
be taken as disputed land except the main
temple, so as to facilitate the measurement
exercise.

(f) The map will clearly outline
the limits of 4335 sq. feet area including
the main temple and its structure in the
centre of it.

(g) The report so prepared shall
be duly signed by the authority preparing,
official who carry out measurement
exercise on the spot, the two learned
Advocates appointed by the High Court
and Officer of the respondent duly
authorized for the said purpose as well as
an authorized person of the petitioner in
that behalf as well.

(h) The measurement will be
carried out by 16.12.2019 as directed
herein above from 02:00 p.m. onwards
and report prepared by the officials of the
Development Authority shall be submitted
to this Court on or before 19.12.2019 in a
sealed cover. The expenses shall be borne
by the petitioner of the agency who shall
carry out the measurement and the survey
of the area as per our directions contained
herein above.

(i) The temple will remain closed
during measurement and survey. The
District Magistrate as well as Inspector
General of Police, Prayagraj Zone are
directed to provide adequate security on
the spot so that the measurement and
survey work is carried out peacefully
without any interference by a third party
and the general people except the
contesting parties, namely, the petitioner
and the respondents, shall be kept away
from the premises where the measurement
exercise will be carried out as directed
herein above.

(j) Learned Advocates Sri Vikash
Budhwar and Sri Kunal Shah shall
prepare a separate joint report under their
signatures about the conduct of survey in
their presence and the manner and method
in which it has been carried out.

(k) The District Administration
shall also ensure that learned Advocates
Sri Vikas Budhwar and Sri Kunal Shah are
escorted to the place in question for the
exercise and are escorted back to their
respective places and for that it will
contact learned counsels through the
Registrar (Protocol), High Court.
1286 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The Registrar General is
directed to supply a complete set of entire
pleadings of this case to both the learned
Counsels
within
48
hours
and
to
communicate this order to the Secretary,
Prayagraj Development Authority, District
Magistrate,
Prayagraj
and
Inspector
General of Police, Prayagraj Zone within
48 hours to ensure the compliance. A copy
of this order shall also be supplied to the
learned Advocates Sri Vikas Budhwar and
Sri Kunal Shah within 48 hours.

11. Put up this matter on 19th
December, 2019."

5. In compliance of the aforesaid
order, measurement exercise has been
carried out by Prayargraj Development
Authority with the help of their skilled
men and in the presence of the Advocate
Commissioners.
The
Advocate
Commissioners have also submitted their
report to this Court today and so also the
Prayagraj Development Authority has
submitted a detailed report and maps
prepared by them on the scale given
thereunder. We have shown map and
records to the counsels of the respective
parties and since map and report was
prepared by the officials of the Prayagraj
Development Authority in the presence of
the authorized representatives of the
parties, they have not disputed the same
and admitted it to be correct report and
agreed that Court may decide the matter
taking judicial notice of the report and
survey map.

6. Sri C.B.Yadav, learned Senior
Advocate has agreed with report and
submitted that area that have been shown
in the map is in access to the area over
which temple of Bade Hanuman Jee
known as Mahavir Jee recorded in the
General Land Register as Survey No. 71,
as he has not disputed also CA-1 to the
counter affidavit filed by respondent no. 3,
wherein area of the temple recorded is
4335 Sq.ft. as a private land and the
occupancy has been shown of the then
Mahant Purushottam Giri.

7. The facts and controversy
involved in the present case can be drawn
in a narrow compass like this that temple
of Mahavir Jee (Bade Hanuman Jee) is
continued to be recorded as private land in
the Defence area as Survey No. 71 in the
General Land Register maintained by the
Cantonment Board, Allahabad. The temple
situates with Hanuman Jee resting under it
(hereinafter referred to as temple) and the
structure to that effect is not disputed. It so
happened that one Arun Khanna, Army
Colonel, it appears acting on behalf of the
then Commander of the area, issued some
letter to the Commissioner Allahabad
Division, Allahabad on 06th March, 2004
according permission for renovation /
repair of the Temple with condition that no
new structure should be constructed and
no construction should be done outside the
area measuring 6270 Sq.ft. of GLR No.
94, Survey No. 71 recorded as land
belonging to temple. It is claimed by
Mahant that it is on account of this
permission
accorded
on
behalf
of
Commander that constructions have come.
However,
it
appears
that
when
constructions were in progress as late as in
the year 2009 that notice was issued to the
Mahant on 12th November, 2009 by the
Administrative Officers for the Command
that an unauthorized construction was
being carried out near the temple in
question and the land where constructions
were being raised, was claimed to be
Defence Land as per U.P. State Gazette
Notification dated 28th July, 1916.
1 All. Narendra Giri Mahant Vs. Union of India & Ors.
1287

8. The notice was replied through
Advocate by the Mahant vide letter dated
15.11.2009 claiming legal rights for
carrying out constructions in the form of
repair and renovation as per permission
granted under the letter dated 6th March,
2004 by the then Colonel Arun Khanna.
The reply was responded by the Colonel
Pradeep Arora of the Command that
permission granted was restricted to area
of circle shown as Red in the map
appended and the constructions that were
being carried out were in fact in the area of
the Defence land. Moreover, it was stated
in the reply that permission was one time
sanction for such an activity in the year
2004 and not to operate in perpetuity or
ad-infinitum and it is thereafter finally
order has come to be passed on 19th
November, 2009, which is impugned in
the present writ petition.

9. Thus issue involved in the present
case is three fold: firstly:- whether the
permission granted under the letter dated
06h March, 2004 can be said to be
permission to raise new construction
around temple area and was to operate in
perpetuity; secondly:- (i) What exactly is
the area of temple premises to be called as
such and the exact area of main temple
and; (ii) whether the constructions in
dispute fall within the area of temple
premises ? and thirdly any construction
over a private land so registered/recorded
in the GLR notified under the Cantonment
Board, can be raised without prior sanction
of
the
Cantonment
Board
or
any
competent authority in that behalf.

10. In so far as first and second
issues are concerned, they are related to
each other and so have to be dealt with
together. From perusal of pleadings, we
find that the permission that was accorded
on behalf of Commander was specifically
for renovation/repair of the temple with
strict conditions that no new structure
should be constructed and no constructions
should be done outside the 6270 Sq.ft. area
of the GLR No. 94, Survey No. 71 as a
land belonging to the temple.

11. In order to find answer to the
first
issue
whether
the
permission
accorded under the letter dated 06th
March, 2004, can be construed as only one
time measurement and for a limited
purpose or permission in perpetuity, it is
necessary to appreciate the permission
quoted under the letter dated 6th March,
2004 that runs as under:

"2. Permission is hereby accorded for
renovation/repair of Hanuman Temple at
Sangam with conditions that no new structure
should be constructed and no construction
should be done outside the 6270 Sq. ft area of
GLR 94, Survey No. 71, the land belonging to the
temple, and no portion of the renovation temple
including the flag pole on top of the temple
should be more than 52 ft from ground level. "

12. From the words and expressions
as have come up in the aforesaid letter, it
is clearly deducible that permission was
limited to the extent of renovation/repair
of Hanuman temple with no permission for
new structure and also no permission
beyond the area 6270 Sq.ft. This letter is
admitted to the petitioner and it is claimed
that the constructions whatever have come
up in the year 2009 were saved being
within
four
corners
of
conditions
mentioned in the letter. A bare reading of
the aforesaid letter clearly shows that :

a.
the
permission
was
for
renovation or repair of Hanuman Temple
only;
1288 INDIAN LAW REPORTS ALLAHABAD SERIES

b.
no
new
structure
was
permitted to be constructed; and.

c. no construction should be
done outside the area 6270 Sq.ft.

13. The words and expression "no
construction should be done outside the
6270 Sq.ft and no new structure should be
constructed"
are
to
be
reached
in
conjunction
with
permission
for
renovation
and
repair
of
Hanuman
Temple. Thus, the permission accorded
was to carry out renovation and repair
work only qua Hanuman Temple structure
and then any such renovation and repair
work should not be done beyond the area
of 6270 Sq.ft. provided their existed any
such structure of the Hanuman Temple
upto that area.

14. We have held in the preceding
paragraph that it is difficult to find answer
as to how new construction permanent in
nature can be claimed to be permitted
under the letter and in any view of the fact,
no new construction was permitted, rather
it was renovation and repair work only of
Hanuman Temple was to be done and, for
which, permission was accorded.

15. It appears that when petitioner
started raising new constructions that the
encroachment notice was issued on 12th
November, 2009 and then in reply to that
had been submitted by the petitioner on
15.11.2009, but we do not find any
whisper in any of the paragraphs of the
reply that construction was carried out in
the form of repair or renovation work of
Hanuman Temple. All that is claimed is
that the activity was carried out per
permission accorded under the letter dated
6th March, 2004 in the area surrounding
the Hanuman Temple. Paragraph 1 to 7 of
the
reply
of
the
petitioner
dated
15.11.2009 (in the form of the notice) to
letter dated 12th November, 2009 of
administrative
officer,
is
reproduced
hereunder:

"1.
That
the
Lord
Bada
Hanuman Temple a renounced Temple in
religious field of the world. My client is
seer of Lord Bada Hanuman Temple and
is managing the entire affairs of the
Temple. The Temple of Lord bada
Hanuman is very much old, which history
is not traceable. The Temple, aforestated,
is situated in the bank of Triveni
"SANGAM". Under the U.P. State Gazette
Notification referred in the letter dated
12.11.2009
the
construction
is
not
permissible on the Defence land.

2. That in order to manage the
affairs of the Temple and to allow the
devotees to perform their rituals in around
the Temple an area of 6270 Sq. ft. of GLR
94, Survey No. 71 has been carved out
where temporary construction has already
been made since long back.

3. That on account of huge rush
of devotees, temporary structure was
required to be repaired/renovated, and as
such, permission of the same was
accorded by the Head Quarter, Sub Area,
Allahabad on 6.3.2004 by Sri Arun
Khanna,
Colonel
by
asking
the
Commissioner,
Allahabad
Division,
Allahabad, Sri Dev Dutt. A copy of the
letter dated 6.3.2004 is being enclosed
with this notice as Annexure No. 1.

4. That on account of money
crisis
the
renovation/repair
of
the
surrounding of the Temple could not be
done.
However,
devotees
of
Lord
Hanuman finally donated certain money,
for which my client has not thinks over the
issue of the renovation/repair of the
structures standing thereon.
1 All. Narendra Giri Mahant Vs. Union of India & Ors.
1289

5. That unfortunately even in
religious
place
Cantonment
Board,
Allahabad
has
reported
about
unauthorized construction, factually which
is not correct. Without examining the
factors of construction, without taking into
account the letter/permission accorded by
Head Quarter of Sub Area, Allahabad
about beatification of area of SANGAM
and
Re-construction
of
HANUMAN
Temple, you, Naveen Thapa, Lt. Colonel
issued
this
restrained
order
dated
12.11.2009 .A copy of the letter/restrained
order dated 12.11.2009 is being enclosed
with this notice as Annexure No. 2.

6. That my client has not
violated
any
terms
and
conditions,
referred in U.P. State Gazette Notification
dated 28th July, 2016 as referred in the
letter dated 12.11.2009. My client is
intended to renovate/repair of the Lord
Hanuman
Temple
and
surrounding
thereto, which is within the area of 6270
Sq. ft. of GLR 94, Survey No. 71 and not
beyond that. For this renovation/repair of
the
Lord
Hanuman
Temple
and
surrounding
thereto,
permission
has
already been accorded on 6.3.2004 by
Head Quarter, Sub Area, Allahabad. No
construction
beyond
the
permission
accorded therein is being done by my
client, but in the garb of the false report
submission by Cantonment, Allahabad
about unauthorized construction at Lord
Hanuman Temple, the letter/restrained
order has been issued on 12.11.2009.

7. That since no construction
beyond the sanction accorded on 6.3.1994
is being done by my client, therefore, in
view of the facts and circumstances as well
as taking into account the religious field of
the devotees visiting the Lord Bada
Hanuman Temple everyday regularly and
for their performance of Pooja etc. , you
are hereby requested to kindly withdraw
the
restrained
order/letter
dated
12.11.2009 bearing no. 111185/Gen/Adm.
And allow my client to start the
renovation/repairing work of the Lord
Hanuman Temple and surrounding thereto
as per sanction accorded on 6.3.2004 and
further be pleased to accept the blessing of
the Lord Hanuman for yourself and family
and also for the Nation."

16. We find above answer given to
the effect that permission was only for the
renovation and repair of the Hanuman
Temple and not of any structure in any
area surrounding the temple where it could
have been claimed that there existed
structure that also needed repair or
renovation. It is also not the case of the
petitioner in the pleadings raised in the
writ petition either.

17. Thus the answer to the first issue
is that the contents of the letter only
establish
a
case
of
permission
for
repair/renovation as one time measure.
The general rule in matters of sanction of
map for new construction is also time
bound. Even otherwise if structure has
reached to a stage to be called as
dilapidated, its renovation will always be a
time bound activity and once a building is
renovated/repaired, it may require only
regular maintenance. This issue will be
answered, partly with the third issue as
well, later in this judgment.

18. In order to find answer to the
second issue, we have to first determine
part (i) of it, as to what is the exact area of
the temple recorded as Survey No. 71 in
the General Land Register maintained by
the Cantonment Board. Annexure-CA-1 to
the counter affidavit filed by respondent
no. 3 shows the area of temple as 4335
Sq.ft. described as a temple of Mahabir,
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
classified as a private land in the
occupancy
of
the
then
Mahant
Purushottam Giri. So it is an occupancy
right qua temple land and only to the
extent of an area of 4335 Sq.ft.

19. This Annexure CA-1 has come to
be referred to in paragraph 4 of the counter
affidavit and in pleadings in support
thereof have been further raised in
paragraph 5 and 6. Paragraphs 4,5 and 6
are quoted as under:

"4(CA). That at the out set it is
submitted that the present petition filed by
the petitioner is not maintainable as a
bare perusal of GLR No. 94, Survey No.
71 reveals that the Mahant Purshottam
Giri is holder of occupancy right of temple
of Mahavir of 4335 Sq. fr. Area. The
objection regarding mutation of the
petitioner
are
already
on
record.
Photostate copy of the GLR No. 94, Survey
No. 71 is annexed herewith and marked as
Annexure CA-01

5. That a bare perusal of the
notice dated 19.11.2009 as issued from the
office of Defence Estate Office and the
notice issued from the Cantt. Board dated
18.11.2009 would reveal that the said
encroachment is made on the defence land
is on G.L.R. Survey No. 93 Fort Cantt.
Allahabad which is classified B-4 land
measuring about 76.65 Acres which in fact
is an offence U/s 247 of the Cantt Act,
2006 and as such a show cause notice was
issued from the office of Cantt. Board for
the said alleged encroachment. Photostat
copy of the notice No. E/Fort/BH/20092010/570 dated 18.11.2009 is annexed
herewith and marked as Annexure CA-2.

A perusal of document filed in
support of the claim of the petitioner
reveals that a reference of GLR No. 94,
Survey No. 71 is made by the petitioner, in
fact as per the GLR entry of Survey No. 93
maintained with the Defence Estates
Officer the same is classified as B-4 land
consisting of area 76.65 acres of vacant
(agricultural
land)owned
by
the
Government of India and is under the
management of Military Estates Officer
now known as Defence Estate Officer.
Photostat copy of the GLR No. 93
including the site plan map of the
encroached site is annexed herewith and
marked as Annexure CA-3.

From
the
submission
made
above, it is thus abundantly clear that the
present encroachment by way of pucca
construction which is sought to be carried
out by the petitioner is on Survey No. 93
for which suitable action was initiated by
the deponent being Chief Executive
Officer, Cantt. Board, Allahabad and not
on GLR No. 94 Survey No. 71 as
mentioned by the petitioner in the petition
and in the supporting document.

6. That from the submission
made above it is clear that the petitioner
has no legal enforceable right to make any
construction in the name of erection or reerection of survey No. 94/71 and 93 as
prayed through the present petition. The
alleged permission dated 6.3.2004 on the
basis of which the claim of the petitioner
has been made is also about GLR No. 94
Survey No. 71 and not the GLR No. 93 for
which the action for encroachment as
contemplated under the Rules have been
initiated by the respondent. The claim of
the petitioner is thus devoid of any merits."

20. In the rejoinder affidavit in
paragraph 3, it has been claimed in reply
to the paragraph 4, that petitioner
succeeded the earlier Mahant but the reply
relevant to the issue is given in paragraph
4 of rejoinder affidavit. In said paragraph,
it has been pleaded that temple area of
1 All. Narendra Giri Mahant Vs. Union of India & Ors.
1291
Bade Hanuman Jee is 6270 Sq. ft. as per
the sanction accorded under the letter
dated 06th March, 2004 and it is claimed
that no construction has been raised
beyond the area measuring 6270 Sq. ft. at
any point of time by the management of
the temple in question, so there is no
encroachment as such. Paragraph 4 of the
rejoinder
affidavit
is
reproduced
hereunder:

"4.
That
the
contents
of
paragraph nos. 5 and 6 of the Counter
Affidavit are total misconceived and the
same stand denied. In reply thereto, it is
submitted that the total area for part of
GLR No. 94/71, recorded in the name of
Bade Hanuman Ji Temple is 6270 Sq. Ft,
and therefore, when the permission was
sought by the Commissioner, Allahabad
Division, Allahabad in order to beautify
the area of Sangam and beautification of
Hanuman
Temple,
permission
was
accorded on 06.03.2004 by Colonel Arun
Khanna,
indicating
that
no
new
construction could be constructed and no
construction could be turned down outside
6270 Sq. ft. area of GLR Survey No. 71/94,
the land belonging to the the temple. Thus,
the entire allegation as referred in
paragraphs of the Counter Affidavit that
the land of Hanuman Temple is only 4335
Sq.ft., which is factually incorrect. As per
permission no construction beyond 6270
Sq.ft has been acted upon at any point of
time by the Management of Lord hanuman
Temple. There is no encroachment at any
point of time at present also. Therefore,
the notice issued by the authorities without
making
proper
inspection
and
measurement is factually illegal."

21. This paragraph 4 has been sworn
on the basis of personal knowledge so
naturally the personal knowledge is based
only upon letter dated 06th March, 2004. It
is a question to be enquired into on what
ground this letter showed area of the
temple as 6270 Sq.ft. against the area
recorded in the GLR No. 94, Survey No.
71 as 4335 Sq.ft only. A short counter
affidavit has come to be filed in the matter,
this time on behalf of respondent no. 4,
namely,
Chief
Executive
Officer,
Cantonment Board, Allahabad, in which
vide paragraph 10, it has been stated that
the permission dated 6th March, 2004
cannot constitute a legal permission as
power to permit erection or re-erection lies
with competent authority only, even in
respect of property in occupancy of a
civilian. It has been further reiterated that
the area as recorded in the GLR No. 94,
Survey No. 71 is not as claimed by the
petitioner and so the permission granted
under the letter dated 6th March, 2004 was
not
a
permission
either
under
the
Cantonments Act nor, an exercise of
power conferred upon the Defence Estate
officer in that regard.

22. Reliance has been further placed
in the counter affidavit (vide paragraph 11)
upon
the
General
Administration
Department notification issued by the then
Government of United Provinces on 26th
July, 1916 that restrains any construction
activity in the vicinity of the OD Fort in
the Allahabad District within 1000 yards
but for the permission to be accorded in
writing with approval of the General
Officer Commanding. The relevant clause
2 of the notification (supra) in its entirety
is reproduced hereunder:

"In
exercise
of
the
power
conveyed by section 3, sub section (1) of
the Indian Works of Defence Act, 1903
(VII of 1903), His Honour the Lieutenant-
Governor of he United Provinces of Agra
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
and Oudh is hereby pleaded to declare
that it is necessary to impose restrictions
upon the use and enjoyment of the lands in
the vicinity of Allahabad Fort in the
Allahabad district and which are more
particularly set forth in the sketch plant of
the land referred to, a copy of which has
been deposited in the office of the
Collector of the Allahabad district.

2. that, from and after the
publication
of
the
public
notice
mentioned in section 3, sub-section (2) of
the said Act, the restrictions mentioned in
section 7(a) and 7(b) of the said Act shall
attach to the land within the said zone,
lying within 1,000 yards from the orest of
the glaois of the said fort, viz:-

(I) No verification shall be
made in the ground level and no
building,
wall,
bank,
or
other
construction of permanent materials
above the ground, shall be maintained, or
erected, added to, or altered.

Provided that, with the written
approval
of
the
General
Officer
Commanding the Division, and on such
conditions as he may prescribe, variation
in ground level, huts, fences and other
constructions of wood, or other materials,
casily destroyed, or removal, may be
maintained, erected, added to , or altered.

Provided that, with the general
permission
of
the
General
Officer
Commanding the Division, the railway
authorities
are
exempted
from
this
prohibition in respect of their beng
allowed to load, unload and stak ovr the
whole area such ballash, bricks, sleepers,
or other materials as may be required
from time to time for the construction or
maintenance of the railway.

Provided, also, that any person
having control of lands as owner, lessee,
or occupier hall be bound forthwith to
destroy or remove such huts, fences, or
other constructions without compensation
upon the order in writing signed by the
General
Officer
Commanding
the
Division.

(ii) No wood, earth, stone, brick,
gravel, sand, or other material shall be
stacked, stored or otherwise accumulated.

Provided that, with the written
approval
of
the
General
officer
Commanding the Division and on such
conditions as he may prescribed, road
ballast, manure, and agricultural produce,
may be erected from the prohibition.

Provided, also, that any person
having control of the land as owner,
lessee, or occupier shall be bound
forthwith to remove such road ballast,
manure or agricultural produce without
compensation on the requisition of the
General
Officer
Commanding
the
Division.

(iii) Live hedges, rows or clumps
of trees, or orchards shall not be
maintained places added to, or altered
otherwise than with the written approval
of the General Officer Commanding the
Division and on such conditions as he may
prescribe.

(iv) No surveying operations
shall be conducted otherwise than by or
under the personal supervision of a public
servant duly authorisied in this behalf by
the General Officer Commanding the
Division, and

(v) where any building, wall,
bank, or other construction above the
ground has been permitted under this
notification to be maintained, erected,
added to, or altered, repairs shall not.
Without the written approval of the
General
Officer
Commanding
the
Division, be made with materials different
in kind from those employed in the
original building, wall, bank or other
construction.
1 All. Narendra Giri Mahant Vs. Union of India & Ors.
1293

Provide further that nothing in
this notification shall apply to existing
buildings,
entered
in
schedule
"B"
attached to the plan mentioned in
paragraph 1 hereof, or to variations of
ground level, banks, hedges, etc, so long
as these remain unaltered as they exist on
the date of this notification. "
(emphasis added)

23. In reply to the said paragraph in
the supplementary rejoinder affidavit what
has been stated is that there is no
encroachment beyond the area shown in
the GLR. Paragraph 10 of the short
counter affidavit and reply thereof in
paragraph 11 of the short rejoinder
affidavit are reproduced hereunder:

"10 (SCA):- That in reply to the
contents of para no. 8 of the rejoinder
affidavit, the content of Para no. 11, 12
and13 of the counter affidavit are
reiterated. The respondent most humbly
submits that the contents of para under
reply are with the sole intent to mislead to
this Hon'ble Court in the light of the fact
that the general officer commanding the
division has not authority whatsoever
vested in his offices to grant any
permission whatsoever ."

"11. (SRA) That the contents of
paragraph no. 7,8,9 and 10 of the
Supplementary counter affidavit filed by
respondent no. 4 are not admitted, in the
manner, as stated, hence denied. It is
submitted that the petitioner has not
encroached the land either of Defence or
Cantonment Board or any GLR beyond
the private land allotted to the petitioner's
temple rather the map, which has been
filed
alongwith
the
order
dated
06.03.2004
clearly
demonstrates
the
correct facts. Bhajan-Pravachan Hall
already is in existence in 2004, in which
much hue and cry has been made by the
respondent no. 4 for fresh construction. It
is factually incorrect, and therefore, the
same is denied."
(emphasis added)

24. From the above discussions with
reference to the pleadings of the respective
parties, the admitted position comes to be
that the land recorded in the GLR No. 94,
survey no. 71 is taken to be the land over
which temple in question is recorded with
total area of 4335 Sq.ft. The petitioners
have not come up with any such evidence
to disprove that entry, rather they have
come to admit the area recorded as
property of temple and are only banking
upon permission accorded under the letter
dated 06th March, 2004 qua their rights to
the extent of 6270 square meter.

25.