1

Court No. - 1

AFR

Case :- WRIT - C No. - 65211 of 2009

Petitioner :- Narendra Giri Mahant Of Bade Hanuman Ji Temple

Respondent :- Union Of India And Others

Counsel for Petitioner :- Nisheeth Yadav,C.B. Yadav

Counsel for Respondent :- A.S.G.I.,Pramod Kumar

Singh,Prashant Mathur,Satish Kumar Rai,Vinod Kumar Shukla

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 19

th

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,

2

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.

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

3

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

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

4

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.

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

5

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 06

th

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 12

th

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.

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 6

th

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 19

th

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

6

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 06

th

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 6

th

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;

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

7

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 12

th

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 6

th

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 12

th

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.

8

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.

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 28

th

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

9

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, 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/2009-2010/570 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 re-erection 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.”

10

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 Bade Hanuman Jee is 6270 Sq. ft. as per the

sanction accorded under the letter dated 06

th

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 06

th

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 6

th

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 6

th

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.

11

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

26

th

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

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

12

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.

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 06

th

March, 2004

qua their rights to the extent of 6270 square meter.

13

25.From the legal provisions relied upon by the respondent as

quoted hereinabove, it goes without saying that there has to be

sanction of the Commander but sanction has to be read in respect

of an area recorded in the GLR because sanction is given to

civilian occupant in a defence area qua the property so recorded.

The Hanuman Temple is recorded as private property in the

occupancy of the then Mahant possibly from whom the present

Mahant is claiming to be a descent. So there could not be any

permission but for an area recorded in the occupation of civilian.

This Court does not find any document to corroborate the area

described under the letter dated 06

th

March, 2004 and fail to find

any justification for mentioning the area as 6270 Sq.ft to carry

out repair/renovation of temple as per GLR No. 94, survey no. 71

as a land belonging to the temple, opposed to the one recorded in

the GLR. In the absence of any such record to corroborate the

area under the sanction letter, the sanction granted under the

order dated 06

th

March, 2004 cannot be said to be legal one qua

an area beyond 4335 Sq.ft. Merely because sanction has been

granted qua a particular mentioned area and which does not find

support from the land register on which basis right is claimed,

one cannot establish his rights or title, even in terms of

possessory / occupancy rights on the basis of such letter or

sanction. So therefore, we conclude and hold that temple

premises is the area mentioned in the GLR and the petitioner

could not have raised any construction temporary or permanent

beyond the area of 4335 Sq.ft recorded as survey no. 71 of GLR

No. 94 as temple in occupation of Mahant.

26.Coming to the part (ii) of the second issue qua the disputed

constructions we proceed to examine whether the disputed

constructions can be said to have come up beyond the area of the

temple recorded in the GLR and whether constructions in question

are in fact in the surrounding area within 4335 Sq.ft. or beyond

that surrounding area of the temple. It is, therefore, also

necessary to get the exact area of the temple and its structure.

Since, now we have received survey map and measurement

report conducted and prepared by the Prayagraj Development

Authority in the presence of the respective parties and the

Advocates Commissioner and that has not been disputed, it is

this report that will give answer to the above issue.

14

27.Before, we proceed to examine the report, we would like to

refer the Advocate Commissioners report submitted by Sri Vikas

Budhwaar and Sri Kunal Shah, learned Advocates, in which, it has

been stated that the survey exercise and measurement was

concluded as per our order dated 6.12.2019. A hand written

report which bears signatures of Pawan Kumar Shukla

representative of Narendra Giri, Sri Amit Kumar Singh, Chief

Executive Officer Cantonment Board, Sri Prashant Mathur,

Advocate for Cantonment Board, Sri Rajiv Kumar Shukla, Sub

Divisional Officer-II, Defence Estate Officer Allahabad Circle, Sri

Pramod Kumar Singh, Ministry of Defence, Sri S.Thapa and

Punjab Singh, representatives of OD Fort has been appended to

the report of Advocate Commissioners dated 16.12.2019 that

runs as under:.

“Spot Inspection Report dated 16.12.2019

In compliance of the order dated 10.12.2019 passed by

Hon'ble High Court in Civil Misc. Writ Petition NO. 65211 of 2019

(Narendra Giri Mahant of Bade Hanuman Ji Temple Vs. U.O.I. &

Others)

We Vikas Budhwar, Advocate and Kunal Shah in the capacity

of Court appointed Advocate Commissioner reached the site being

the Temple at 1:50 P.M. On 16.12.2019.

At the site when the survey/measurement activity was to be

carried out Sri Pawan Kumar Shukla who was identified by the

(petitioner-Mahant namely Shri Narendra Giri) and nominated as his

representative for survey, Sri Amit Kumar Mane Chief Executive

Officer, Cantonment Board along with his counsel Sri Prashant

Mathur, Advocate for Cantonment Board were also present. Also

present were Sri Rajiv Kumar Shukla Sub Divisional Officer-II

Defence Estate Officer, Allahabad Circle, Advocate Pramod Kumar

Singh for Ministry of Defence, Sri S. Thapa along with Punjab Singh

for OD Fort were also present.

To carry out the measurement/survey activity the following

officers of the Prayagraj Development Authority were present.

i. Sri Dayanand Prasad Secretary PDA

ii. Sri. S.D.Sharma ` Executive Engineer PDA

iii. Sri T.P.Sngh Town Planner PDA

iv. Smt. Archana Ojha Tehsildar PDA

v. Sri R.S. Verma L.O. PDA

The measurement activity was commenced at 2:30 P.M. In

compliance of the order of the High Court.

Firstly, the measurement of Main Temple premise was

undertaken. The measurement were arrived at and

reported/recorded in presence of concerned party by P.D.A.

Thereafter, the measurment of the area towards the east of

the temple was carried out and the details of the measurements

were recorded/reported in the presence of the concerned party by

PDA

15

The measurement of temporary/permanent structure towards

the east of the temple were carried out separately in presence of

parties.

Thereafter the measurement of the area towards the west of

the main temple was carried and details of permanent and

temporary existing towards the west of the temple was recorded by

the official of P.D.A. in presence of concerned party.

Likewise, measurement towards the north & the south of the

temple was also carried out in the presence of parties by P.D.A.

The survey exercise/measurement was concluded at 3:55 P.M.

The entire exercise of measurement was carried out in a peaceful

environment. No dispute of any nature arose from any of the

fraction. The parties were satisfied with the measurement/survey.

The District Administration had provided adequate security at

the site which ensured peaceful execution of measurement/survey.

In compliance of the order dated 10.12.2019 passed by the

Hon'ble High Court the undersigned has prepared this joint spot

inspection report detailing the manner in which the survey activity

was carried out.

Further with the consent of the parties the measurement so

recorded by the PDA on 16.12.2019 has been forwarded for

computerized development i.e. Map etc. detailing the measurement,

construction existing at the spot to PDA which will develop the same

by tomorrow i.e. 17.12.2019 as due to paucity of time instant

development cannot be done.

The joint inspection report will be followed by a typed and

detail report by the Advocate Commissioner.”

28.Now the detailed typed joint report of the Advocate

Commissioners that runs in seven paragraphs is reproduced

hereunder:

“1. That as per the order dated 16.12.2019 passed in w.p.

no. 65211 of 2009 being Narendra Giri Vs. Union of India and other

the spot inspection was conducted on 16.12.2019 in the presence of

the following parties.

I. Pawan Kumar Shukla (representaive of Narendra Giri),

ii. Sri Amit Kumar Mane (Chief Executive Officer Cantonment

Board);

iii. Sri Prashant Mathur (Advocate for Cantonment Board);

iv. Sri Rajiv Kumar Shukla (Sub Divisional Officer-II Defence

Estate Officer, Allahabad Circle);

v. Sri Pramod Kumar Singh (Ministry of Defence);

vi. Sri. S. Thapa; and

vii. Punjab Singh (representtive of OD Fort).

The measurement was carried out by the following officials of

Prayagraj Development Authority:

1. Sri Dayanand Prasad (Secretary PDA);

ii. Sri S.D. Sharma (Executive Engineer PDA);

iii. Sri T.P.Singh (Town Planner PDA);

iv. Smt. Archana Ojha (Tehsildar PDA); and

v. Sri R.S. Verma (Law Officer PDA)

2. That the measurement activity commenced on 2:30 P.M. And

concluded at 3:55 P.M. On 16.12.2019.

3. That the measurement activity commenced in the following

16

manner.

a. Firstly, the measurement of Main Temple premise was

undertaken. The measurement were arrived at and

reported/recorded in presence of concerned party by P.D.A.

b. Thereafter, the measurement of the area towards the east

of the temple was carried out and the details of the

measurement were recorded/reported in the presence of the

concerned party by P.D.A.

c. The measurement of temporary/permanent structure

towards the east of the temple were carried out separately in

presence of parties.

d. Thereafter the measurement of the area towards the west

of the main temple was carried and details of permanent and

temporary existing towards the west of the temple was

recorded by the official of P.D.A in presence of concerned

party.

e. Thereafter measurement towards the north and the south

of the temple was also carried out in the presence of parties

by P.D.A.

4. That the entire exercise of measurement was carried out

in a peaceful environment. No dispute of any nature arose

from any of the fraction. The parties were satisfied with the

measurement/survey.

5. That after the completion of the measurement/survey

when the stage of preparation of the map giving the outline

with regard to the area/measurement and the

temporary/permanent construction so existing was to be

reflected in the map which was to be prepared then the

officials of P.D.A. Apprized the parties including the advocate

commissioner's so appointed by the Hon'ble High Court of

Judicature at Allahabad that it is not possible to make the

map immediately on the site in question as it will require

sufficient time to sketch the map and to identify the

permanent and temporary constructions including the

measurement so recorded therein.

6. That accordingly the officers of the P.D.A. Apprised the

parties including the Advocate Commissioner's that the map

will be provided by 17.12.2019.

7. That a specific query was raised by the advocate

commissioner before the parties concerned as to whether

they have any objection to the same that the map will be

prepared subsequently and it cannot be prepared over the

site in question, then the respective parties including their

representatives and counsels apprised the advocate

commissioner that they have no objection as the

measurements were taken in their presence and they were

satisfied with the measurement which had been recorded.

8. That the said fact which transpired during the entire

exercise conducted on 16.12.2019 was recorded in the spot

inspection report dated 16.12.2019 which was signed by the

respective parties and their representatives.

9. That on 16.12.2019 the officials of the PDA assured that they

will provide the map containing the measurements and the nature of

the constructions existing on the site in question by 17.12.2019 but

the same has not been provided . Thus the map is not being

appended alongwith the compliance affidavit.

10. That for the kind perusal of this Hon'ble Court the following

documents are being submitted before the Hon'ble Court in

purported compliance of the order dated 10.12.2019 passed in W.P.

No. 65211 of 2009 which are as under:

I. (Hand Writing) Spot Inspection Report dated 16.12.2019

17

(containing 3 pages);

ii. Typed copy of spot Inspection Report dated 16.12.2019

(containing 4 pages); and

11.That the present spot inspection report along with the

annexures are being filed before this Hon'ble Court in compliance of

the order dated 10.12.2019 passed in the aforesaid writ petition the

same may be kept and be treated as part of the record.”

(emphasis added)

29.Now, we proceed to examine the survey report of Prayagraj

Development Authority placed before us in sealed cover by

learned counsel appearing for Prayagraj Development Authority.

As we go through the survey report, we find that the area which

has been outlined with dotted dash shown in the 'legend' as

outline of the area of the main temple and surrounding in total as

4335 Sq.ft. with width shown to be 15 meters and the length as

26.85 mt, totaling to 402.75 Sq.mt. (approx 4335 Sq.ft.),

wherein a part of the back of the varandah on western south is

within the area of 4335 Sq.ft. and so also part of the office area

on western north is also shown inside the temple premises. The

permanent structure that have been shown with red shaded lines

are disputed permanent constructions and mostly beyond the

area of 4335 Sq.ft. This constructed area includes the flower

center area 85.18 Sq.Mt. (approx 916.366 square ft.) and office

and shops area 86.30 Sq.mt. (approx 928.95 Sq.ft.) with

exception to certain area of varandah and office referred to

above. Sri Ram Janki Temple area 59.57 Sq.mt. (approx 642,25

Sq.ft.) then further construction have been carried out of another

Sri Hanuman Jee temple with an area to the tune 5.42 Sq.mt.

(approx 578.88 Sq.ft.)

30.The temporary structure (shown with green shaded lines)

as Hawan Kund Shed area to the extent of 48.36 square meter

(approx 520.30 Sq.ft.) and 53.99. square meter (approx 580.82

Sq.ft.) towards north east of the temple premises. Yet another

shed has come up in the south as 115.16 square meters (approx

10238.89 Sq.ft.) south. All these structures are shown as green

shaded area and are referred to as temporary structure.

31.None of the respective parties have disputed this above

measurement exercise nor, put any objection to the survey map

and measurement report prepared by P.D.A.

32.The scanned print of the map with measurement details

submitted by PDA and referred to above is reproduced hereunder:

18

19

20

21

33.Since above measurement report and the map have not

been disputed by any of the counsels of the respective parties, it

is taken to be admitted. Thus the report is found prepared on the

spot without any dispute and objection. Accordingly, the ultimate

and inevitable conclusion drawn by us is as under:

a. The main temple area where Hanuman Jee rests and

structure above stands is 113,91 Sq.mt. (approx 1,225.44 Sq.ft.)

b. Temple premises is the area that includes temple

structure ( 113,91 Sq.mt.) and the surroundings is 4335 Sq.ft

(approx 402.75 Sq. mt.)

c. Except for a part of area of office (west north corner) and

part of Verandah (west south corner) of temple premises, the

entire constructions shown with red shaded lines are

unauthorized constructions.

(i) Part of office area inside premises is 14.143 square

meter (approximately 152.152 Sq.ft).

(ii) Part of varandah with additional temporary structure

inside the premises is 16.062 Sq.mt. (approximately

172.81 Sq.ft.)

d. Since permission under the letter dated 6

th

March, 2004

was only for renovation and repair of temple, it would mean only

the main temple and the surrounding, shown in the survey map/

report prepared by the PDA, with dotted lines were open space is

available and should continue to remain open space upto the

extent of 4335 Sq.ft..

e. the words renovation and repair in the letter dated

06.03.2004 can only mean improvement upon and retaining the

existing structure and not a permission for creating any new

structure.

f. there is no pleading by the petitioner that there existed

any structure permanent or temporary except main temple

within an area of 4335 Sq.ft. described as Temple of Mahbir Jee

in the GLR.

34.Learned counsel for the petitioner has also not sought any

time to raise any objection and rather has made a request that

after measurement exercise was carried out on the spot in the

presence of representatives of Mahant of temple on 16

th

22

December, 2019 and since the permanent structure shown with

red shaded lines has been found beyond the area shown in the

GLR as 4335 Sq.ft. the Mahant has applied to the Ministry of

Defence, Government of India on 18.12.2019 to regularize the

constructions that have come up beyond the area 4335 Sq.ft. and

so the structure that have already come up over the land which

is a Defence land quite beyond the area of the private land of the

temple, may not be demolished until decision is taken by the

Government of India.

35However, no such letter has been placed before this Court,

so it can be safely concluded with the admission of respective

parties that except for certain area of the office and verandah and

office towards west-south and the west north respectively of the

temple premises, the entire constructions that are permanent in

nature, beyond the temple premises (4335 Sq.ft.) are upon the

Defence land and as such constructions, therefore, are liable to

go. Except for transfer of land by Ministry of Defence,

Government of India to the temple management, the

constructions cannot be taken/deemed to be regularized and

since as on date there is no such permission accorded qua

permanent constructions beyond the area of 4335 Sq. ft. of the

Hanuman Temple and its premises, such constructions deserve to

be demolished.

36.Now, we take up the third issue which is regarding rights

of an individual private person to raise construction over the land

or in respect of the building which is recorded in the GLR as a

private land/ building in occupation of a private individual either

under lease or grant or a mere occupancy prior to the coming into

force of Cantonments Act, 2006. Till 14.09.2006, the

Cantonments Act, 1924 was in promulgation with regard to the

development activity in the area notified as an cantonment area.

It is the authority created under the Cantonments Act and the

Board constituted thereunder exercise same power as by a

municipality in a civil municipal area.

37.Section 178-A provides for sanction of the construction in

the name of erection or re-erection of a building in a civil area

only. There is previous sanction of the Executive Officer and then

any exercise of erection or re-erection without sanction has been

23

described as punishable offence in view of section 179 of the Act

of 1924. Section 178 A and 179 of the Act of 1924 are reproduced

hereunder:

“CHAPTER XI

Control Over Building, Streets, Boundaries, Trees, Etc.

Buildings

178-A. Sanction for building:-

No person shall erect or re-erect a building on any land in a

cantonment-

(a) in an area, other than the civil area, except with the

previous sanction of the Board,

(b) in a civil area, except with the previous sanction of

the Executive Officer,

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 buildings.

179. Notice of new buildings-

:-1. Whoever intends to erect or re -erect any building in a

cantonment shall apply for sanction by giving notice] in writing of

his intention,-

a). Where such erection or re-erection is in an area, other

than the civil area, to the Board;

b). Where such erection or re-erection is in a civil area

to the Executive Officer:)

(2) For the purposes of this Act, a person shall be deemed to erect

or re-erect a building who-

(a) makes any material alteration or enlargement of

any building, or

(b) converts into a place for human habitation any building

not originally constructed for that purpose, or

(c) converts into more than one place for human habitation a

building originally constructed as one such place, or

(d)converts two or more places of human habitation into a

greater number of such places, or

(e) converts into a stable, cattle-shed or cowhides any

building originally constructed for human habitation, or

(ee) convets into a dispensary, stall, shop, warehouse,

godown, factory or garage any building originally constructed

for human habitation, or

(f) makes any alteration which there is reason to

believe is likely to affect prejudicial the stability or

safety of any building or the condition of any building

in respect of drainage, sanitation or hygiene, or

(g) makes any alteration to any building which

increases or diminishes the height of, or area covered

by, or the cubic capacity of, the building, or which

reduces the cubic capacity of any room in the building

below the minimum prescribed by any bye-law made

under this Act.

180A -SECTION 180A: POWER OF BOARD UNDER CERTAIN

SECTIONS EXERCISABLE BY EXECUTIVE OFFICER:-

– The powers, duties and functions of the Board under section

181, sub-section ( 1 ) of section 182, section 183-A and section 185

(excluding the proviso to sub-section (1) and the proviso to sub-

24

section (2) of the said section 185) shall be exercised or discharged

in a civil area by the Executive Officer.”

(emphasis added)

38.In the present case the issue is of sanction quoted in the

year 2004 as no erection or re-erection could have been carried

out without sanction and so to the extent of renovation/repair

permission so granted under the letter dated 6

th

March, 2004

could have been pressed into service as one time measure. Now

with enforcement of the Cantonments Act, 2006 with its

publication on 14.09.2006 any development activity in respect of

civil occupancy building or land, the provisions of 2006 Act would

be applicable and so also in the present case as notice is qua

constructions carried in the year 2009.

39.We find that notice was issued in the year 2009 and,

therefore, it has to be seen as to whether respondent had any

authority to carry out any development activity in the form of

raising permanent structure or construction over and above the

land inclusive of the temple premises without prior sanction of the

competent authority.

40.From the reading of the various provisions of Chapter IX,X

and XI of the Cantonments Act, 2006, we find that the powers of

the Cantonment Board and authority designated thereunder have

been quite widened and are more akin to the municipal functions.

Chapter (X) deals with town planning and control over the

building etc. Section 233 provides for preparation of plan for the

land use in the cantonment area and Section 233 provides for

sanction of building. Section 235 provides for notice by the

person who wants to erect or re-erect or repair the building.

Section 233 requires a person to notify the purpose and then

powers lies with the Board / Authority to sanction or refuse

sanction and the Board reserves the right to order stoppage of

building work in certain cases; then Section 242 provides for

completion of erection or re-erection of the building and to give

completion notice and then Section 243 provides for prescribed

period of limitation for sanction to follow and if within the

prescribed period of 2 years, no construction/ re-erection has

taken place, a further application for extension of time shall be

given to the competent authority, namely, Board or executive

officer as the case may be. The Board also reserves power under

25

Section 245 to prescribe a reasonable period within which work

has to be completed then completion certificate is issued under

Section 246 and under Section 247 notice is given where illegal

erection or re-erection of building is carried out and then Section

248 gives power to stop the work and even order for

demolition .Section 249 also provides for to seal an unauthorized

construction and then Section 250 bars the jurisdiction of Civil

Court in such matters.

Section 235 of the Cantonments Act, 2006 defines erection

or re-erection vide sub-section 2 as under:

"(2) For the purposes of this Act, a person shall be deemed to erect

or re- erect a building who-

(a) makes any material alteration or enlargement of any

building; or

(b) converts into a place for human habitation any building not

originally constructed for human habitation; or

(c) converts into more than one place for human habitation a

building originally constructed as one such place; or

(d) converts two or more places of human habitation into a greater

number of such places; or

(e) converts into a stable, cattle- shed or cow- house any building

originally constructed for human habitation; or

(f) converts into a dispensary, stall, shops, warehouse, godown,

factory or garage any building originally constructed for human

habitation; or

(g) makes any alteration which there is reason to believe is

likely to affect prejudicially the stability or safety of any

building or the condition of any building in respect of

drainage, sanitation or hygiene; or

(h) makes any alteration to any building which increases or

diminishes the height of, or area covered by, or the cubic

capacity of, the building, or which reduces the cubic capacity

of any room in the building below the minimum prescribed by

any bye- law made under this Act.”

(emphasis added)

41.From perusal of the above, therefore, it is clear that

building erection or re-erection will include any material alteration

or enlargement of any building and its existing structure. Then we

find that Section 243 provides that sanction of erection or re-

erection of building shall be only for 2 years from the date of

sanction and if work is not carried out during this period, one can

apply to the Board or executive officer as the case may be, and in

case if construction of building has been started but could not be

completed within specified reasonable period as may be provided

by executive officer or the board then such construction work will

not be continued unless prior sanction is obtained.

42.Section 247 provides for punishment against the person

who continues or completes erection or re-erection of the building

26

without giving any valid notice as required by Section 235 and

236 or before any sanction has been issued or without complying

with direction as contained under Section 238 and also in cases

where sanction has been refused and yet construction work is

being carried out. Section 247 and Section 248 and 249 relevant

for the purpose, are reproduced hereunder:

“247. Illegal erection and re-erection- Whoever begins,

continues or completes the erection or re-erection of a building-

(a) without having given a valid notice as required by

sections 235 and 236, or before the building has been

sanctioned or is deemed to have been sanctioned; or

(b) without complying with any direction made under sub-

section (1) of section 238; or

(c)when sanction has been refused, or has ceased to be

available or has been suspended by the General Officer

Commanding-in-Chief, the Command, under clause (b) of sub-

section (1) of section 58,

shall be punishable with fine which may extend to fifty thousand

rupees and the cost of sealing the illegal construction and its

demolition.

248. Power to stop erection or re-erection or to demolish:-

(1) A Board may, at any time, by notice in writing, direct 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 247 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 247, within twelve months of the completion of such

erection or re-erection in like manner, direct the alteration or

demolition, as it thinks necessary, of the building, or any part

t hereof, 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 General Officer Commanding-in-Chief, the

Command, accept any sum by way of composition under the

foregoing proviso in respect of any building OR land which is not

under the management of the Board.

(2)A Board shall by notice in writing direct 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

order under section 238 sanctioning the erection or re-

erection has been suspended by the General Officer

Commanding-in-Chief, the Command, under clause (b) of

sub-section (1) of section 58, and shall in any such case in

like manner direct the demolition or alteration, as the case

may be, of the building or any part thereof so erected or re-

erected where the General Officer Commanding-in-Chief, the

Command, thereafter directs that the order of the Board

sanctioning the erection or re-erection of the building shall

not be carried into effect or shall be carried into effect with

modifications specified by him:

Provided that the Board shall pay to the owner of the building

compensation for any loss actually incurred by him in consequence

27

of the demolition or alteration of any building which has been

erected or re-erected prior to the date on which the order of the

General Officer Commanding-in-Chief, the Command, has been

communicated to him.

249. Power to seal unauthorized constructions:-(1) It shall

be lawful for the Chief Executive Officer, at any time, before

or after making an order of demolition under section 248 or

of the stoppage of erection of any building, or execution of

any work, to make an order directing the sealing of such

erection or work or of the premises in which such erection or

work is being carried on or has been completed at the cost of

the offender in such manner as may be prescribed by rules

for the purpose of carrying out the provisions of this Act or

for preventing any dispute as to the nature and extent of

such erection or work.

(2) Where any erection or work or any premises in which any

erection or work is being carried on, has or, has been sealed, the

Chief Executive Officer may, for the purpose of demolishing such

erection or work in accordance with the provisions of this Act, order

such seal to be removed.

(3) No person shall remove such seal except--

(a) under an order made by the Chief Executive Officer under sub-

section (2); or

(b) under an order of an appellate authority in an appeal made

under this Act.

(4) Any person who contravenes the provisions contained in sub-

section (3) shall be punishable with imprisonment which may extend

to six months or with fine which may extend to twenty thousand

rupees, or with both.”

(emphasis added)

43.From reading of the above provisions, it is absolutely clear

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. So 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 even

within temple premises except with prior sanction of the

competent authority under the Cantonments Act, 2006. The

permission so granted in the present case in the year 2004 will

automatically deemed to have seized with enforcement of

28

Cantonments Act, 2006 and any construction in the name of

erection or re-erection of the temple structure even in the temple

premises could not have been carried out except with prior

sanction and permission of the competent authority under the

Cantonments Act, 2006.

44.Besides above the Cantonments Act, 2006 does not abolish

or repeal the notification of the Government of United Provinces

dated 26

th

July, 1916 that is a special notification restraining

construction activity in the vicinity of the ordinance depot fort,

Allahabad to wit, within 1000 yards except with prior sanction of

the General Officer Commanding of the Division.

45In the present case, we do not find that any such sanction

has been accorded to the petitioner to raise new construction or

raise any permanent structure removing old one within the area

of the 1000 yards from the wall of the OD Fort except direction/

letter dated 6

th

March, 2004 for repair or renovation. So answer

to the 3

rd

question is that no construction and no development

activity in the name of raising construction or re-erection of a

building as defined under Section 235 (2) (a)(g)(h) can be carried

out except with prior sanction of the competent authority under

Cantonments Act, 2006 and that too in the close vicinity of the

fort i.e. 1000 yards from the fort wall as per notification of 1916

(supra). The survey map and report ( supra) submitted in this

case clearly shows that permanent structures/constructions have

come up in various forms within 1000 yards of the Fort.

46.The survey report and the discussions held above give

ample answer to the second querry because there is no

permission accorded by the competent authority of the

Cantonment Board to raise constructions over and above the

Defence land at all. The permission under the letter dated 6

th

March, 2004 cannot be read as permission to raise construction

over and above the Defence land.

47.In the present case, we find that area where temple situate

is a Defence land, the Mahant of Hanuman temple is a mere

occupant of the temple which is recorded as private land. Any

development activity, therefore, in and around the temple within

the temple premises will be in the nature of altering the structure

and if to be carried out, it necessarily requires prior permission

29

from the competent authority of the Cantonment Board. As far as

notification of the Government of United Provinces referred to in

the counter affidavit dated 26

th

July, 1916 appended with

counter affidavit is concerned, it clearly goes to demonstrate that

no such activity can be carried out within 1000 yards from the

orest of the glaois of the OD Fort.

48. The measurement that has been carried out and the map

prepared clearly show that the constructions have been carried

out only within the limit of 1000 yards of the Fort wall and

therefore, constructions are held to be illegal for want of sanction

of the competent authority.

49.The Apex Court in the case of Chief Executive Officer v.

Surendra Kumar Vakil and Others (1993) SCC 555 has

clearly held that even in respect of private land of which civilian

could be a grantee or a lessee any construction can be carried out

only with prior sanction of the competent authority and if no such

sanction has been obtained, such authority is well within its right

not only to question the same but order for removal /demolition

and if occupier does not demolish such constructions voluntarily,

the authority can get that demolished at the cost of the occupant.

50.At this stage, learned Senior Advocate appearing for the

petitioner Sri C.B.Yadav submits that since constructions have

been found to be beyond area of 4335 Sq.ft. recorded in the GLR

No. 94 and Survey No. 71 as per the measurement exercise

carried out by the Prayagraj Development Authority in the

presence of the representatives of the petitioner and the officers

concerned, and the report has been prepared to that count,

Mahant has applied on 18.12.2019 for grant of sanction/

regularization of the existing structure and the Magh Mela is

shortly to be organized in the area, some reasonable time may be

allowed to remove the standing constructions in questions shown

as red shaded, beyond the area of 4335 Sq.ft recorded as private

land of Hanuman Temple premises in question.

51.To the above request, learned counsel for the respondents

has no objection and we also find that since Magh Mela is shortly

to begin, it would be in the public interest to grant sufficient time

to the petitioner to remove unauthorized constructions.

52.In view of above, therefore, we hereby direct that petitioner

30

shall remove all the constructions permanent and temporary

beyond the area 4335 Sq.ft.. shown in the map prepared by the

Prayagraj Development Authority (supra) within a period of three

months from today and positively by 19

th

of March, 2020, failing

which it would be open for the respondent to carry out necessary

exercise for removal of the unauthorized constructions.

53.Writ petition thus stands disposed of with the aforesaid

observations and directions.

54.The registry is directed to supply certified copy of the

survey map and the report to the respective parties, if they apply

for the same.

55.However, before we part with the case, we may record our

appreciation for the tremendous task undertaken by the Advocate

Commissioners in rendering their assistance in the matter by

preparing spot inspection report quite meticulously in respect of

the inspection carried out by the Prayagraj Development

Authority.

Order Date :- 19.12.2019

Sanjeev

(Ajit Kumar,J.) (Ramesh Sinha,J.)