MANU/UP/1934/2005
Equivalent/Neutral Citation: 2005(35)AIC 575, 2005 (61) ALR 84, 2006 1 AWC 62All
IN THE HIGH COURT OF ALLAHABAD
C.M.W.P. No. 16629 of 2001
Decided On: 13.07.2005
Subhash Yadava and Ors. Vs. Estate Officer and Ors.
Hon'ble Judges/Coram:
D.P. Singh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.C. Mandhyan, Adv.
For Respondents/Defendant: Mohd. Isa Khan, Adv. andS.C.
Case Note:
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Section 5A
(2)--Cantonment Land Administration Rules, 1937--Rule 3--Cantonments Act,
1924--Section 187--Public premises--Eviction of unauthorised occupants--
Land in dispute registered as class B-4 land under Rule 3 of Cantonment Land
Administration Rules--Petitioners constructed some shops over land--Show
cause notice under Section 5A (2) issued--Sufficient opportunity given to
petitioners before passing impugned order--Section 5A and Section 187 of
Cantonments Act operate in different fields--Petitioners failing to show any
authority under which they call legal occupiers--No merit in writ petition.
JUDGMENT
D.P. Singh, J.
1. Pleadings are complete and the counsel for the parties agree that the petition may be
finally disposed of under the Rules of the Court.
2. Heard counsel for the parties.
3 . This writ petition is directed against an order dated 12.4.2001, directing the
petitioners to remove the illegal constructions and structures from the public premises
namely Government class B4, part of survey No. 183/735 situated at BC, Bazar, Meerut
Cantt.
4 . General Land Register Survey No. 183/735 shows land admeasuring about 41.929
acres situated in the civil area of the Cantonment at Meerut is registered as a class B4
land under Rule 3 of the Cantonment Land Administration Rule, 1937. This land is
situated towards south side of House No. 144-1. Sri Krishna Murari Lal son of Sri
Jagdish Murari Lal was the alleged owner of property No. 144-1 which he sold to Smt.
Harjeet Kaur. It is alleged that Smt. Harjeet Kaur had already applied for conversion of
her old grant into free hold. As the petitioners had constructed some shops over the
land forming part of Survey No. 183/735, a show cause notice under Section 5A(2) of
Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was issued to them on
16.5.2000, asking them to remove the said illegal structures or to show cause why it
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should not be removed. The petitioners filed their reply stating that they are the
occupiers of the shops and the boundaries mentioned in the notice were incorrect and
thus the proceedings be dropped. By the impugned order dated 12.4.2001, the Estate
Officer held that the petitioners had encroached upon the public premises and have
raised illegal construction and as such has directed demolition of the said constructions.
5 . Learned counsel for the petitioner has firstly urged that no opportunity of hearing
was given to the petitioners or their counsel and thus the order is vitiated.
6. There is recital in the impugned order showing that the objection to the show cause
was considered and the petitioners were heard. In the counter-affidavit it is alleged that
the petitioners along with their counsel appeared before the Estate Officer on 27.5.2000
and sought adjournment which was granted and 3.6.2000 was fixed but the case could
not be taken up on 3.6.2000, thus it was fixed for 17.6.2000 when the counsel for the
petitioner again sought adjournment and it was fixed for 1.7.2000. On 1.7.2000, an
adjournment application again was moved which was rejected and 6.7.2000 was fixed
as last date for filing their evidence but no evidence was filed on behalf of the
petitioners and as such 12.7.2000 was fixed but as it could not be taken up, it was fixed
for 30.8.2000. Subsequently, when the matter was fixed for 8.9.2000 on the petitioner's
request, it was adjourned to 13.9.2000, when the petitioners filed their further
objection again another opportunity for filing objection was granted and it was fixed for
4.10.2000 which was adjourned on the petitioners request and subsequently it was
heard and orders were reserved on 12.4.2001 whereafter the impugned order was
passed. A copy of the order sheet is also annexed. These averments have not been
denied in the rejoinder-affidavit. Thus, in my opinion the petitioners were given
sufficient opportunity and which they availed and therefore the contention cannot be
sustained.
7. The next contention of the counsel for the petitioner is that after issuing notice under
Section 5A of the Act, another notice under Section 187 of the Cantonment Act, 1924
was served to the petitioners by the Cantonment Executive Officer on 14.6.2000,
against which he has filed an appeal before the G.O.C. in Chief Central Command,
Lucknow and no demolition can take place for awaiting the decision in the appeal. It is
alleged that two parallel proceedings could not go on simultaneously.
8 . To consider this argument it would be necessary to examine Section 187 of the
Cantonment Act, 1924, which is reproduced hereinbelow.
187. Projections and obstruction.--(1) No owner or occupier of any building in
a cantonment shall, without the permission in writing of the (Board) add to or
place against or in front of the building any projection or structure
overhanging, projecting into or encroaching on, any street or any drain, sewer
or aqueduct therein.
(2) The (Board) may, by notice in writing require the owner or occupier of any
such building to alter or remove any such projection or encroachment as
aforesaid :
Provided that, in the case of any projection or encroachment lawfully in
existence at the commencement of this Act, the (Board) shall make
compensation for any damage caused by the removal or alteration.
(3) The (Board) may, by order in writing give permission to the owners or
occupiers of buildings in any particular street to put up open verandahs,
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balconies or rooms projecting from any upper storey thereof to an extent
beyond the line of the plinth or basement wall at such height from the level
ground or street as may be specified in the order.
9 . A perusal of the said provisions shows that neither an owner or occupier of any
building legally constructed cannot erect any projection or structure encroaching on any
street, drain, sewer or aqueduct therein. It would also be necessary to take note of the
relevant part of Section 5A, which is quoted below :
5A. Power to remove unauthorized constructions etc.--
(1) No person shall--
(a) erect or place or raise any building or (any movable or
immovable structure or fixture).
(b) display or spread any goods.
(c) Bring or keep any cattle or other animal, on or against, or
in front of any public premises except which he was allowed to
occupy such premises.
A perusal of the said provisions shows that no person can erect or raise any building or
display any goods or bring any cattle in or in front of any public premises without the
permission of the authority.
10. From the reading of two provisions together, it is apparent that the two apply in
entirely different situation. While Section 187 restricts itself with regard to construction
in the nature of overhanging/projection etc. over any street, drain or sewer, whereas
Section 5A mitigates against any kind of constructions or display of goods or animals in
or in front of any public premises. Thus, the second argument of the learned Counsel
for the petitioner also cannot be sustained.
11. There is yet another facet to this case. The petitioners claim to be occupiers of the
disputed shop but neither in the writ petition nor in the objections filed before the
authority they have disclosed the nature of their occupation. They are neither grantees
of the estate nor lessees of the grantees. They have tried to mix up the issue of House
No. 144-1 which allegedly belongs to Smt. Harjeet Kaur but they do not contend that
their constructions are on the strength of the occupation of Harjeet Kaur. They have not
disclosed how they came into possession or under which authority they made
constructions. Even during the argument, the learned Counsel for the petitioner has
failed to demonstrate any authority under which they call themselves legal occupiers.
Thus, even on this short point, this petition cannot be maintained.
12. For the reasons given hereinabove, this petition fails and is dismissed with cost.
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