# \' ~' " . CANTONMENT BOARD, MEERUT v. NARAINDAS & ANR

- **Citation:** [1970] 1 S.C.R. 240
- **Court:** Supreme Court of India
- **Decided:** 1970
- **Case number:** Civil Appeal- No. 747 of 1966
- **Bench:** S. M. S!Kri, R. S: Bachawat, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/cantonment-board-meerut-v-naraindas-anr-4743
- **Pages:** 4

## Headnote

B
·-
\
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Cantonments Act (2 of 1924), ss. 185 ·and 181-Kiosk Ol'er drain
· belonging to Cantonment Board-Direction for removal eighteen years
.after its construction-Competency of the Board.
·-------·
Section 185 of the C~ntoi:tments Act, 1924, deals with the erecticn
, o'r re-erection of buildings on private lands and the Cantonment Board
is given the power to direct the alteration or demolition of such a build·_
C
ing within . twelve months of the completion of erection or re-erectiori.
Section 187 deals with constructions, which are projections or structures,
encioaching on .ally street9 drain9 sewer or aqueduct.
The Cantonn1eot
Board has the right to direct the demolition of such~-structures under
:s. 187, within the period of limitation for suits for possession""' of public
streets or roads, that is, within ___ 3Q years from th~ date of en~oachmcnr.
, J ' . _
In the present case, the o\.\'·ner of a shop constructed a stone projecD
·' _ tion over the drain belonging to the Cantonment Board, after obtaining
- permission of the Cantonment Board, to facilitate approach to his shop.
But, without obtaining the pe'rmission of the Cantonment Board,.. he _put
up a kiosk on the stone projection, which thus encroached upon the
_ .drain belonging to the Cantonment Board.
The Board; eighteen yea:-s
)
after the construction,_directed the removal of the kiosk'under s. 187.
/
On the questi~n whether s. 185 or s. 187 applied.
HELD ' The act complained of fell within the scope
of
s.
187,
'because, the permission given by the Board to -put up the stone projection
did not confe'r on the owner- of the shop any proprietary -right over the
drain but merely -gave him a licence~ As the action of the Board \VJ.3
within 30 years from the date of encroachment. the Board was compete!lt ·
to get the kiosk removed. [242 A; 243 A-B,-E-F]
[\Vhether the Board could take action even after the period of- limitation of 30 years, left open]. [243 E]
. . .
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## Text

.\'
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CANTONMENT BOARD, MEERUT
v.
NARAINDAS & ANR.
_
,4pril 9, 1969
A
[S. M. S!KRI, R. S: BACHAWAT AND K. S. HEGDE, JJ.]
B
·-
\
!
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Cantonments Act (2 of 1924), ss. 185 ·and 181-Kiosk Ol'er drain
· belonging to Cantonment Board-Direction for removal eighteen years
.after its construction-Competency of the Board.
·-------·
Section 185 of the C~ntoi:tments Act, 1924, deals with the erecticn
, o'r re-erection of buildings on private lands and the Cantonment Board
is given the power to direct the alteration or demolition of such a build·_
C
ing within . twelve months of the completion of erection or re-erectiori.
Section 187 deals with constructions, which are projections or structures,
encioaching on .ally street9 drain9 sewer or aqueduct.
The Cantonn1eot
Board has the right to direct the demolition of such~-structures under
:s. 187, within the period of limitation for suits for possession""' of public
streets or roads, that is, within ___ 3Q years from th~ date of en~oachmcnr.
, J ' . _
In the present case, the o\.\'·ner of a shop constructed a stone projecD
·' _ tion over the drain belonging to the Cantonment Board, after obtaining
- permission of the Cantonment Board, to facilitate approach to his shop.
But, without obtaining the pe'rmission of the Cantonment Board,.. he _put
up a kiosk on the stone projection, which thus encroached upon the
_ .drain belonging to the Cantonment Board.
The Board; eighteen yea:-s
)
after the construction,_directed the removal of the kiosk'under s. 187.
/
On the questi~n whether s. 185 or s. 187 applied.
HELD ' The act complained of fell within the scope
of
s.
187,
'because, the permission given by the Board to -put up the stone projection
did not confe'r on the owner- of the shop any proprietary -right over the
drain but merely -gave him a licence~ As the action of the Board \VJ.3
within 30 years from the date of encroachment. the Board was compete!lt ·
to get the kiosk removed. [242 A; 243 A-B,-E-F]
[\Vhether the Board could take action even after the period of- limitation of 30 years, left open]. [243 E]
. . .
·
CIVIL APPELLATE JURISDICTION:
Civil Appeal- No. 747 of
1966 ..
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·Appeal by special leave from the judgment and order dated
G
February 2, 1~65 of the Allahabad High Court in Second Appeal
No. 2097 of 1958.
·
·
·
by
C. B. Agarwala and 0. P. Rana, for the appellant.
P. N. Bhardwaj, for respondent No. 2.
__
The Judgment ·of the Court was delivered by
H
Hegde J., The only question arising for decision in this appeal
special Leave is whether the notices iinpugned in these pro-
A
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CANTONMENT BOARD v. NARAINDAS (Hegde, J.)
241
ceedings are governed bys. 185(1) ors. 187(1) of the Cantonments Act, 1924. The trial court held that s. 185 (1) is the
aoveming provision.
The first appellate court differed from it
~nd held that s. 187 ( l) governs. The High Court in second
appe:1l has restored the decision of the trial court.
The respondent is the owner of shop No. 344 in Mohalla
Bakri, La!-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 constructiOll 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
year<: prior to the institution of the suit, the owner of the shop
put up a woockn kiosk over the stone projection and the same is
being used as a pan shop. According to the finding of those
couns 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
11-iven to him on December 8, 1953. Thereafter the owner of
the shop instituted the suit from which this appeal has arisen seekin~. 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 1S
years prior to the issue of the notices referred to earlier, the Cantonment Board cannot compel its removal in view of s. 185(1).
Thi<: decision was reversed by the learned
Dis~rict 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
year<, prior to the date of the suit but yet according to him it was
competent for the. Cantonment Board to get the same removed
undcr s. 187 (l). 'The learned District Judge opined that s.
185 ( I ) has no relevance to the facts of the case. In second
appeal. the High Court agreed with the conclusion of the trial
cour1 that s. 185 ( 1) is the governing provision.
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 O\'er the drain. adjoining the road after obtaining the permission of the Cantonment Boacd. It cannot be disputed that the
property in the road including the drain statutorily vests in
the
C3nlonment Board.
The permission. given by the Cantonment
Bc3rd to the owner of the shop to put up the projec-
L
242
SUP.REME COURT REPORT~
(1970] I S.C.R.
tioa does not confer on hiin any propriet~ry right over the drain.
A
It merely gives him a licence to use the projection'. He cannot
exclude the public from using that -m:_ojection, The kiosk had
been put up without obtaining the permissjon of the Cantonment
Board.
The "kiosk is a stnicture and it projects or en9roaches
upon the drain belonging 'to the Cantonment Board. It can even
be said that it •overhangs the drain. We have riow· to examine
B
the provision of Jaw applicable bearing in mind those. facts.
Sectioμ 18'5 (1 ) reads :
"A (Boa.rd) may, at any iime, by notice in writing
direct the owner, lessee or occupier of any' lan<l in the
cantonment to stop the erection or re-erection of a
building in any ca.se in which the (Board) considers
that such erection or re-erection is an offence under section 184, and may in su€h case (or'in any other case in
which the Board considers that the erection or re-erection of a building is an offence under
~- 184, within
(twelve months) of the completion of such erectic'l or
re-erection) "in like manner direct the
alteration
or
demolition as it thinks ~necessary, of the building or any
part thereof, so 'erected or re-erected."
We are unable to agree with the High Court that this section
applies to the facts of the present case. In our judgment
that
sectjon applies only to cases where a building is
erected or reerected over a land belonging to someone. other than the Cantonment B0ard. That is why that section says that a -notice
under
that section can be given "to a owner, lessee or occupier of any
land". A notice under that section cannot be given to any person
other than the owner or lessee or the occupier of the land over
which the building in question had been erected or re-erected.
The notices with which we are concerned in (his case were not
given to the owner, lessee or occupii;r of the land over which
kiosk is put up. As seen earlier the kiosk has been constructed
over the land under the ownership of the
C~ntonment Board.
Neither the owner of shop No. 344 ·or its occupier can be considered as a lessee of the land over which the projection was put
up. Hence the provisions contained in s, 185 (I) are not attracted to the present case.
This takes, us to s. 187 ( 1). It reads :
"No owner or occupier of any building in a cantonment shall, with0ui the permission in writin~ of the
the (Board) add to or place agains.t or in front of the
building any projection or structure overhanging, pro-
.iecting into, or encroaching on, any street or any drain,_
sewer or aqueduct therein',',
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A
B
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CANTONMENT BOARD v. N~RAINDAS (Hegde, J.)
243
This section deals with constructions which are projections
or structures overhanging, projecting into or encroaching on any
street or any drain, sewer or aqueduct. Undoubtedly the kiosk is
a structure. Further it is a projection into a drain. It also encroaches on the drain if it does not also overhang it. Therefore
the act complained of clearly falls within the scope of s. 187(1).
In other words s. 185 deals with erection or re-erection of
buildings on private lands whereas s. 187 deals with the construction of projections or structures overhanging, projecting into or
encroachmg on any street, any drain or aqueduct. The two provisions deal with different situations. One ha~ nothing to do with
the other. Obviously the legislature does not want the Cantonment Board to demolish buildings erected on private lands after
the period mentioned in s. 185(1) but public interest requires
that no such limitation should be placed on the Cantonment
Board while acting under s. 187 (1). Otherwise our streets and
roads may soon disappear. The High Court missed the distinction
between s. 185 (1) and s.· 187 (1). Quite clearly the present case
falls withins. 187(1).
Judicial opinion is divided on the question
whether local
Boards can take action under provisions similar to s. 187 even
after the period of limitation for filing suits by those bodies for
possession of public streets or roads or parts thereof or on which
they have discontinued their possession, expires. It is not necessary. t~ g? into tha! controversy _in the present case. The period
ot llm1tatton prescnbed for a smt of the type referred to earlier
is 30 years. In the present case action under s. 187 (!) had been
commenced within 18 years from the date of the encroachment.
For the reasons mentioned above this appeal is allowed and
decree of the High Court is set aside and that of the first appellate court restored.
'
Now coming to the question of costs, at the time of granting
special leave this Court had directed that the appellant shall pay
the costs of the respondent in any event. We incorporate that
order as a part of this judgment.
V.P.S.
Appeal allowed.
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