Case: Cantonment Board, Meerut Vs. Naraindas &amp; Anr

2. The respondent is the owner of shop No. 344 in Mohalla Bakri, Lal 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 construction 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 years prior to the institution of the suit, the owner of the shop put up a wooden kiosk over the stone projection and the same is being used as a pan shop. According to the finding of those courts 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 given to him on December 8, 1953. Thereafter the owner of the shop instituted the suit from which this appeal has arisen seeking 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 18 years prior to the issue of the notices referred to earlier, the Cantonment Board cannot compel its removal in view of Section 185 (1). This decision was reversed by the learned District 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 years prior to the date of the suit but yet according to him it was competent for the Cantonment Board to get the same removed under Section 187 (1). The learned District Judge opined that Section 185 (1) has no relevance to the facts of the case. In second appeal, the High Court agreed with the conclusion of the trial Court that Section 185 (1) is the Governing provision.3. 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 over the drain adjoining the road after obtaining the permission of the Cantonment Board. It cannot be disputed that the property in the road including the statutorily vests in the Cantonment Board.The permission, given by the Cantonment Board to the owner of the shop of put up the projection does not confer on him any proprietary right over the drain. It merely gives him a licence to use the projection. He cannot exclude the public from using that projection.The kiosk had been put up without obtaining the permission of the Cantonment Board.

Reasoning:
5.We are unable to agree with the High Court that this section applies to the facts of the present case. In our judgment that section applies only to cases where a building is erected or re-erected over a land belonging to someone other than the Cantonment Board. 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 this case were not given to the owner, lessee or occupier 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 Cantonment 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 Section 185 (1) are not attracted to the presentthe legislature does not want the Cantonment Board to demolish buildings erected on private lands after the period mentioned in Section 185 (1) but public interest requires that no such limitation should be placed on the Cantonment Board while acting under Section 187 (1). Otherwise our streets and roads may soon disappear.The High Court missed the distinction between Section 185 (1) and Section 187 (1). Quite clearly the present case falls within Section 187 (1).9. 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 to go into that controversy in the present case. The period of limitation prescribed for a suit of the type referred to earlier is 30 years. In the present case action under Section 187 (1) had been commenced with 18 years from the date of the encroachment.