Shri Indrachand Jaju vs The Sub-Divisional Officer and Another

K.N. Saikia, C.J.—The Petitioner challenges the eviction notice issued by the Sub-divisional Officer (Sadar), Jorhat dated 1.8.86 it, Encroachment Case No. ENC/Jor/(E) No. 10/86-87, stating that he had encroached upon 1/4 lessas of land of Toklai Stream by constricting a three storied building in dag No. 3766 (Unga) in Block No. 1, No. 2 Mouza of Jorhat town and requiring him to vacate the said land immediately on receipt of the notice falling which he would be evicted therefrom as per law. Against the aforesaid notice, the Petitioner preferred an appeal before the Assam Board of Revenue u/s 147 read with Section 151 of the Assam Land and Revenue Regulator, 1886. By the impugned judgment dated 23.7.87 his appeal was rejected and the order of Sub-divisional Officer (Sadar) Jorhat was upheld. The Petitioner impugns the appellate judgment also in this writ petition.

Mr. A.R. Barthakur, the learned Counsel for the Petitioner submits that Rule 18(2) of the settlement Rules was not applicable to the Petitioner''s case inasmuch as he has constructed his house on his land with due permission from the Jorhat Municipal Board and the ''Chajja'' of the house over-hanging the Toklai river covering 1/4 lessas of Toklai stream does not amount to encroachment and no notice could have been issued under Rule 18(2) of the settlement Rules. Besides, submits Mr. Barthakur, the Petitioner''s house along with tie said "Chajja" have been there for more than 40 years and the Petitioner has acquired the right over the space covered by the "Chajja".

Mr. P. Prasad, the learned Senior Government Advocate, Assam submits that the "Chajja" as has been found by the Board has encroached upon the air space above the Toklai stream and thus above the Government land, and it must be regarded as encroachment and Rule 18(2) appropriately applies in this case and if in fact it does not amount to encroachment it is open for the Petitioner to approach the Revenue authority to ascertain the fact and establish his right but not by way of this writ petition.

On perusal of the impugned judgment of the Board we find that before the Board it was argued that as the ''chajja'' was constructed not on the lard but it was only a projection over the land there was no obstruction whatsoever on the land and that the aerial encroachment could not be treated as an encroachment over the land. It was submitted by the learned Government Advocate before the Board that mere duration of occupation did not confer any light on the encroacher if the occupation was without any valid order and the "chajja" was not constructed with any valid permission and that the land meant the space over it also and if encroachment on space was not treated as encroachment it might lead to dangerous situation as the land over the public roads also might be encroached by projecting buildings from the sides of the roads. The learned Board accordingly held that encroachment of the space above the land was to be treated as encroachment if the encroacher had got no authority on the land over which the structures were projected. The Board further found from the Report of the Deputy Commissioner that Toklai Jan was a reserved land and the Petitioner encroached on Dag No. 3766 by constructing the ''chajja'' over that Dag which was a reserved Satkari land and in that view of the matter rejected the appeal.

Mr. Barthakur submits that the construction having been on his own land and even assuming that the ''chajja'' was over-hanging the Toklai stream he may be allowed to establish his civil right in an appropriate forum and till then his ''chajja'' may not be demolished. Mr. Barthakur also contends that tie ''chajja'' having not been standing over the land it could not be treated as a construction and encroachment upon the land.

The impugned notice has been issued in encroachment case. Encroachment means the unauthorised extension of the boundaries of land. Any unlawful gaining upon the possession of another is an encroachment. The Assam Land and Revenue Regulation 1886, shortly, ''the Regulation'' has not defined land. However the Assam Local Rates Regulation, 1879 in Section 2(1) gives the following definition:

2(1)-Land means land, whether covered with water or not, which is, or in the absence of some express exception would be assessable to land revenue.

Land, generally speaking, ''comprehended any soil, or earth whatsoever. It legally included also houses, and other buildings as well as water". The Law of Property Act, 1925 in England defined land to include land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege or benefit in, or over, or derived from land; but not an undivided share in kind. In the Assam Land and Revenue Regulation different kinds of rights that can be derived over land have been stated.

Legally speaking a piece of land, includes the following, elements: (1) A determinate portion of the earth''s surface; (2) The ground beneath the surface down to the centre of the world. In this sense all the pieces of land in the Country meet together in one terminable point at the earth''s centre; (3) The ground column of space above the surface ad infinitum. ''The earth'' has, in law, a great extent upwards, not only of water, but of air and all other things even upto heaven; for Cujus est solum, ejus est usque ad coelum. Whose is the soil, his it is up to the sky. He who owns the soil or surface of the ground, owns or has exclusive right to everything which is upon or above it to an indefinite height. Cujus est solum, ejus est usque ad coelum et ad inferos. To whomever the soil belongs, he owns also the sky and to the depths. The authenticity of this doctrine, however, is not wholly beyond dispute. It would prohibit as an actionable trespass all use of the air space above the appropriated surface of the earth, at whatever height this use took place, and however little it could affect the interests of the land owner. It may be that the law recognises no right of ownership in the distant airspace at all or at least no right of exclusive use but merely prohibits all acts which by their nature or their proximity interfere with the full enjoyment and use of the surface. Every unlawful entry by one person on land in the possession of another is a trespass and every expansion of one''s land above another will amount to encroachment. Insofar as land is concerned a person trespasses upon land if he wrongfully sets foot on, or rides or drives over it, or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it. Though one is the owner of the air space over his land interference with the air-space over land by things other than air-craft will be regarded as trespass and as an encroachment. The slightest entry into air-space over one''s land would be trespass. It means if one owns a portion of the earth''s surface, one also owns anything below or above that portion which is capable of being reduced into private ownership. A distinction has to be made between infusion into the air-space by things other than aircraft. Insofar as aircraft is concerned the intrusion is regulated by statute. If the injury is direct and immediate and the air space is in the Plaintiff''s possession the question arises how much of the air space is capable of ownership or possession. Several theories have been advanced. If, A projects anything into B''s area of ordinary user that will amount to encroachment. As regards the flight of an air-craft the Rule generally is that no action shall lie in respect of trespass or in respect of nuisance, by reason only of flight of an aircraft over any property at a height above the ground, which having regard to wind, weather, and all the circumstances of the case is reasonable, or the ordinary incidents of such flight.

Applying the above principles, the air space above the Toklai river, the river-bed having belonged to the Government, must also he regarded as having belonged to the Government and the Government has every right to fill that air space with contents as it likes, if the Petitioner by constructing "chajja" over-hanging the Toklai river has occupied a portion of that air space it will amount to encroachment and there is no reason why notice under Rule 18(2) or any other appropriate rule will not issue or will not be appropriate. Even assuming that there was adverse possession the question will also arise as to whether by adverse possession of the air space above the land one could claim adverse possession over the land itself.

As Mr. Barthakur has stated that the ''Chajja'' hanging from his house has been there for more than 40 years and the Petitioner claims to have acquired some right over that air space and this is a question of law which has to be determined on the basis of facts, it would be open for the Petitioner to approach the civil Court for establishing his right; and Mr. Barthakur has agreed to do so within a reasonable time.

Considering the facts and circumstances of the case, particularly the important questions of law likely to be involved, we accordingly allow the Petitioner to approach the appropriate Court within a period of 4 months. Status quo as regards the Petitioner''s house and the "Chajja" as of today shall be maintained, and it will ultimately abide by the decision of the Civil Court. It would be open for the Petitioner to obtain any appropriate interim order from the appropriate Court and such an order, if and when obtained, will replace this Status quo maintenance order.

In the result, with the above observations and directions this petition is disposed of.