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DELITE CINEMA versus CANTONMENT BOARD KANPUR THRU' ADHISHASHI ADHIKARI

High Court of Judicature at Allahabad

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Delite Cinema v. Cantonment Board Kanpur Thru' Adhishashi Adhikari - SECOND APPEAL No. - 352 of 2005 [2007] RD-AH 15855 (21 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 352 of 2005

Delite Cinema Vs. Cantonment Board Kanpur

~~~~

Hon. Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge, Court No.1, Kanpur Nagar by which the Civil Appeal, that had been filed by the plaintiff, was dismissed.

The Original Suit had been filed for permanent injunction to restrain the defendant Cantonment Board, Kanpur Nagar from interfering with the peaceful possession of land measuring 52'x10'x6" on which the cycle stand existed. A further relief was also sought for restraining the defendant from making any construction. It was alleged that the plaintiff demanded land from the Cantonment Board for operating the cycle stand and thereafter a resolution was passed by the Cantonment Board in favour of the plaintiff for utilizing the said land as a cycle stand on a monthly licence fee of Rs. 15/-. The plaintiff thereafter put a slab on the drain and a cycle stand was constructed but the defendant on 25.9.1975 demolished the pillars of the cycle stand.

A written-statement was filed on behalf of the Cantonment Board. It was denied that any permission had been granted to the plaintiff to cover the drain. It was also stated that the plaintiff had been allowed to keep the cycle stand on a temporary basis and not for raising any constructions. The defendant had no right to continue in the legal occupation of the land after 30.9.1975 and it was not in public interest to permit him to continue to operate the cycle stand as it was causing obstruction and hindrance to the normal flow of the traffic.

The Trial Court dismissed the Suit and the Civil Appeal that had been filed by the plaintiff was also dismissed. Both the Courts below have found that the licence had been granted by the Cantonment Board to use the land in dispute for operating the cycle stand only up to 30.9.1975. The contention of the plaintiff that a permanent licence had been granted to him, was rejected as on the own showing of the plaintiff, it was only by way of oral permission. The Courts below have also found that the plaintiff had raised unauthorised constructions by covering the drain which constructions were demolished by the Cantonment Board in accordance with law.

Learned counsel for the appellant submitted that a permanent licence had been granted to the plaintiff and, therefore, the Cantonment Board was not justified in demolishing the pillars raised by the plaintiff. This contention of the learned counsel for the appellant cannot be accepted as the plaintiff had not filed any document which could show that a permanent licence had been granted. The plaintiff had covered the drain and had raised unauthorised constructions. The Cantonment Board was, therefore, justified in removing the unauthorised constructions particularly when they were causing obstruction and hindrance to the normal flow of traffic. There is, therefore, no infirmity in the judgment of the Lower Appellate Court. The Second Appeal is, therefore, liable to be dismissed at the admission stage as no substantial question of law arises for consideration.

The Second Appeal is, accordingly, dismissed.

Dt/-21.9.2007

Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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