Point of Law: provisions of Section 5A. Sub-section (1) of Section 5A contains a prohibition on any person erecting or placing or raising any building or any movable or immovable structure or fixture; displaying or spreading any goods or bringing or keeping any cattle or other animal on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises.

JUDGMENT :

1. Heard Sri Sumit Daga, learned counsel for the petitioner, Sri Chandra Preshrank Yadav for respondent nos. 1 and 3 and Sri Satish Kumar Rai for respondent no. 2.

2. This petition is directed against a notice dated 4.8.2016 and the consequential order dated 28.2.2020 (Annexures-1 and 3 to the writ petition), whereby alleged constructions raised by the petitioner has been directed to be demolished. This order has been passed invoking the provisions contained in Section 5A(2) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the Act of 1971). The order records that petitioner is an unauthorised occupant and has no semblance of right to remain in possession and, therefore, the constructions raised by him are unlawful.

3. The writ petition was heard on 6.10.2020 and following orders were passed:-

“One of the ground urged on behalf of petitioner is that in view of repeal of the Cantonments Act,1924, the provisions of Public Premises Act itself will not be attracted upon the Cantonment property, inasmuch as by virtue of Section 2(e)(2)(viii) of the Act, the only property covered within the definition of Public Premises is one belonging to Cantonment Board under 1924 Act. Learned counsel for the parties require further time to examine this aspect of the matter.

Put up on 8.10.2020 in the additional cause list.”

4. Sri S.K. Rai, learned counsel appearing for the Cantonment Board has invited attention of the Court to Section 360 of the Cantonments Act, 2006 (hereinafter referred to as the Act of 2006), which contains the repeal and savings clause in the Act of 2006. Sub-section 2 (a) of Section 360 of the Act of 2006 provides that notwithstanding the repeal of the Cantonment Act,1924, any appointment made or notification issued there under in so far as it is not inconsistent with the provisions of the Act of 2006 shall continue to remain in force and be deemed to have been made under the provisions of the Act of 2006. With reference to Section 3 of the 2006 Act learned counsel submits that cantonment with its boundary is specified by way of a notification, issued in the official gazette by the Central Government. A co-joint reading of the above two provisions, according to Sri Rai, makes it explicit that cantonment having been constituted by way of a notification issued under the Cantonment Act, 1924 it shall continue and would not stand repealed even under the Act of 2006. Reliance is placed upon para-17 of the Supreme Court judgment in Cantonment Board and another Vs. Church of North India, reported in (2012) 12 SCC 573, which is reproduced herein after:-

“Section 2(e) of the Public Premises Act defines "public premises." This section is split into two sub-sections. Sub-section (1) covers thereunder any premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government. Sub-section (2) deals with premises belonging to or taken on lease or on behalf of various entities such as Government Companies, Universities, Major Ports etc. which are mentioned in that sub-section, and Cantonment Boards have come to be covered under sub-section (viii) by amendment with effect from 1.6.1994. The case of the respondent has been that the premises belong to Union of India, and, therefore, are public premises. The Estate Officer did have the jurisdiction over such premises. It is another matter that the premises of Cantonment Boards have also come under the definition of public premises since 1.6.1994. It cannot mean that the premises of Union of India which were always under the Public Premises Act, but under the Management of a Cantonment Board, since prior to this amendment, would not be covered under the Public Premises Act. This has been the plea of the appellants right from the beginning.”

5. A division bench judgment of Delhi High Court in Jagat Singh Vs. The Estate Officer, Delhi is also relied upon to submit that the property in the management of cantonment