- (1.) Admittedly, the land in dispute is situate within the cantonment area of jabaipur and is owned by Union of India. As far back in 1920-21, a plot of land measuring 1.75 acres was leased to Mst. Noor Zenab and Sugra Bibi, Mohd. Yakoob and Mohd. Amin for the purpose of constructing building. The said lessees, accordingly, made construction over the said plot of land. After partition of the country, the lessees migrated to pakistan. With the result, the said superstructure became an evacuee property and was taken over by the custodian of evacuee property. The said superstructure was subsequently sold at an auction. The property in question changed hands several times and lastly the respondents herein purchased the said super-superstructure in 1983. On 12/04/1989 the respondents submitted an application under section 179 of the cantonment Act, 1924 (hereinafter referred to as the 'act') for permission to construct building after demolition of the superstructure. The executive officer, cantonment board rejected the application. The respondents filed an appeal against the order of the executive officer which was rejected. Thereafter, the respondents challenged the said order by filing a petition under Article 226 of the Constitution of India before the High Court of Madhya pradesh. Before the High Court, it was alleged by the respondents, who were the writ petitioners, that they have been treated by uneven hands by the cantonment board. Their case was that the cantonment board had sanctioned building plan submitted by M/s. Golchha brothers and M/s. Akash Ganga and whereas the application of the writ petitioner was arbitrarily rejected. The writ petitioners contended that they have been unreasonably discriminated. It is on this short ground, the High Court set aside the order passed by the cantonment board and directed the concerned authority to grant permission to the building plan submitted by the respondents. It is against the said order of the High Court, the cantonment board has preferred this appeal.
(2.) Learned counsel appearing for the appellant urged that the High Court without going into the question as to whether the respondents could have been granted sanction to construct the building on the land, issued a direction to sanction the map, which is erroneous. Learned counsel pointed out the following infirmities on which sanction for building plan submitted by the respondents could have been refused: 1) That the respondents only purchased the superstructure and right in the land on which the building stood; 2) That the petitioners had no proprietary right over the land; 3) That unless the respondents acquire freehold right, no permission can be granted for construction of the building; 4) That the custodian could not have given more right than the right acquired by them to the auction purchasers; 5) That sanction of building plan given to m/s. Golchha Brothers was in violation of law and inasmuch as the sanction granted to M/s. Akash Ganga has been revoked, against which the writ petition is pending in the High Court; and 6) That there is breach of terms of lease.
(3.) Learned counsel appearing for the respondents urged that the High Court has gone into the questions as pointed out by the appellant on earlier occasion and the High Court after having convinced that the respondents are entitled for sanction of building plan, issued the impugned order.;