J. Khatri of Bombay Vs. Cantonment Board & Ors
 INSC 142 (1 May
Kasliwal, N.M. (J) Kasliwal, N.M. (J) Ramaswamy, K.
1994 AIR 233 1992 SCR (3) 1 1992 SCC (3) 455 JT 1992 (4) 539 1992 SCALE (1)1068
Cantonment (Building) Bye-Laws, 1988:
of building restrictions and bye-laws- Superseding the earlier bye-laws-Brought
into force in larger public interest-Applicability of-Condition that building
plans could be sanctioned on conversion of land into freehold site-Non-payment
of conversion charges in full-Effect of-Refusal to sanction plan-Validity of-
Sanction-To be made in accordance with building regulations prevailing at the
time of sanction-Whether any legal right accrues before the plan gets final
for regulating the erection and re-erection of buildings within the area of the
Respondent Board were made in 1947. Since these bye-laws did not contain
adequate provisions to prevent overcrowding as a result of haphazard and
high-rise constructions, the Respondent Board issued a new scheme of
restrictions by its order dated 24.12.1982 laying down the minimum space
required to be left open and floor space index to be adhered to in the matter
of new constructions. Subsequently, in 1984 the Board modified its earlier
order and issued the second scheme of restrictions on 26-3-1984. Thereafter, the Board framed new bye-laws known as Pune
Cantonment (Building) Bye-laws, 1988 which superseded the 1947 Bye-laws. The
new bye-laws, approved the second scheme of building restrictions which
restricted the height of buildings to 18 metres and maximum number of storeys
to ground plus two.
petitioners submitted their building plans before the First Scheme of building
restrictions was brought into force. The Respondent-Board intimated the
petitioners that their plans could be sanctioned only after conversion of the
old grants into freehold tenure and subject to payment of conversion charges by
them. The Respondent took notice of the fact that some of the petitioners
started constructing buildings ignoring the First Scheme of restrictions and
without making full payment of conversion charges. The petitioners were
required to re-submit the plans 2 in accordance with the new scheme. The Board
also made it clear that any sanction made was valid only for procuring cement
and not for execution of work and so no construction should be started till
final sanction for conversion was received from Government.
aggrieved by the said decision of the Respondent- Board, the petitioners filed
Writ Petitions before the High Court, and the same were dismissed. The High
Court held that the condition of conversion was not severable from the sanction
to the plan and was in fact a condition precedent and foundation of the
sanction. It also held that the new scheme of regulations was legislative in
nature and was not in conflict with the bye-laws. The High Court further held
that the Respondent-Board would have to sanction a plan afresh after conversion
and such plan would be governed by the building regulations prevailing at the
time of the fresh sanction by the Board.
the said judgment of the High Court, the petitioners have preferred the present
Special Leave Petitions.
petitioners contended that the Second Scheme of restrictions and the 1988
bye-laws were not applicable to them and that they were willing to abide by the
First Scheme of restrictions, and that the construction already made during the
period of stay granted by the High Court or otherwise, may be allowed to stand.
the petitions, this Court,
schemes of building restrictions made on 24.12.1982 and 26.3.1984 and amended
bye-laws in 1988 putting restrictions and reducing the height and floor space
index in respect of multi-storeyed buildings, have been made in larger public
interest and for the benefit of the entire population of the city of Pune. The validity of such schemes or bye-laws have not
been challenged before this Court. The slogan of the builders and land owners
of utilising the maximum area for construction of high-rise buildings for
fulfilling the need of houses in big urban cities should always be subservient
to the building restrictions and regulations made in the larger interest of the
whole inhabitants and keeping in view the influx of population, environment
hazards, sanitation, provision for supply of water, electricity and other
amenities. [21 B-D] 3
This Court cannot be oblivious to the fact of thrust of population in all the Urban
cities in our country and the problem of basic amenities to be made available
to the residents of the cities. All planning is to be done on a long-term basis
taking note of the growth of industries and overcrowding of population causing
environmental and pollution problems in the cities. Growing awareness of these
problems has activated the Government as well as the various social activists
in taking notice of this menacing problem which is posing a danger to the very
survival and existence of human race. [17 E,E]
petitioners did not acquire any legal right in respect of building plans until
the same were sanctioned in their favour after having paid the total amount of
conversion charges in lump sum or in terms of sanctioned installments and
getting conversion of their land in free hold tenure. The first scheme of
restrictions was brought into force long back on 24th December, 1982 and the second on 26th March, 1984. The petitioners did not submit any fresh building plans in
accordance with the first or the second scheme of restrictions. Many of the
petitioners have not paid a single pie towards the conversion charges, some of
them have paid only few installments and the others though have paid the
installments have not made it according to the schedule. In any case the High
Court was right in taking the view that the building plans can only be
sanctioned according to the building regulations prevailing at the time of
sanctioning of such building plans. At present the statutory bye-laws published
on 30th April, 1988 are in force and the fresh building
plans to be submitted by the petitioners, if any, shall now be governed by
these bye-laws and not be any bye-laws or schemes which are no longer in force
now. [17 H; 18 A-C]
APPELLATE JURISDICTION : Special Leave Petition (C) No. 647 of 1992 etc. etc.
the Judgment and Order dated 18.10.1991 of the Bombay High Court in W.P. No.
908 of 1984.
J. Sorabjee, S. Ganesh, R.F. Nariman and R.N. Keshwani for the Petitioners.
T.R. Andhiyarjuna, K.J. Presswala, D.J. Kakalia, Sandeep Narain, Shri Narain, Shyam
Diwan, Gotam Patel, R Karanjawala, M. Karanjawala 4 and Ms. Aditi Gore for the
of the Court was delivered by KASLIWAL, J. All the above Special Leave
Petitions by builders in the city of Pune
are directed against the judgement of the Division Bench of the Bombay High
Court dated 18.10.1991 dismissing the writ petitions filed by the petitioners.
The Learned Judges in their order dated 18.10.1991 stated that the controversy
raised in the petition before them stood concluded by an earlier decision of
the Division Bench dated 15.4.1987. Thus, no reasons have been recorded in the
impugned order and in order to decide the controversy before us Learned Counsel
referred to the decision of the High Court dated 15.4.1987.
factual matrix of the above cases may be slightly different, but the legal
controversies are common to all the cases and as such we are disposing of all
the matters by one common order. It was pointed out during the course of
arguments that many more cases are pending in the various courts at different
stages and the fate of those cases also hinges on the decision of these cases.
In order to appreciate the controversies raised in these cases, we would
narrate the facts of SLP No. 647 of 1992 and 985 of 1992 which in our view
would cover the entire spectrum of the questions raised before us.
No. 647 of 1992 The original owners submitted an application for conversion of
the old grant site into freehold sites vide letter dated 19.11.1980. The
Cantonment Board Pune - the respondent No. 1 (hereinafter referred to as `the
Cantonment Board') on 2.12.1980 passed a resolution suggesting the set backs
and recommended that the area admeasuring about 10633 sq. feet be allowed to be
converted on the terms and conditions of payment fixed by the higher
authorities. The petitioner through his architect's letter dated 16.12.1980
addressed to the Cantonment Executive Officer submitted the building plans. The
Cantonment Board vide resolution No. 30 dated nil month April, 1981 resolved
that the plans be sanctioned under Section 181 of the Cantonments Act, 1924
(hereinafter referred to as `the Act') subject to AHO's No Objection. It was
clearly mentioned in the aforesaid resolution as under:- 5 "The following
formalities to be observed to be communicated when the plans to be returned to
the applicant. The sanction be made effective only when the present rights over
the land is converted into freehold by the competent authority and conversion cost
be decided by the Government is deposited by the applicant and subject to
clearance from competent authority ULC Pune.
be requested to allow the party to proceed with construction after taking
likely amount of freehold to avoid delay. Copy of the plan be given to the
applicant for procuring the cement." The Military Estate Officer by his
letter dated 2.3.1983 conveyed sanction of the Government of India for
conversion to freehold on payment of conversion charges of Rs. 5,78,109 on
account of transfer value of the land. A condition was also put that the area
of 2,167.44 sq. feet of land shall be surrendered, that was because of the set
back suggested to which the petitioner agreed. The petitioner by telegram dated
21.3.1983 addressed to the Ministry of Law, Justice and Company Affairs
referred to his personal discussion and requested for payment of conversion
cost in instalments. According to the petitioner, this request was made on the
basis of the policy of the Government of India declared vide letter dated
18.6.1982. The petitioner tendered two demand drafts of Rs. 75,000 and Rs.40,641.80
ps. on 22.4.1983 being 1/5th of the amount of conversion charges. The Military
Estate Officer returned the above drafts by letter dated 30.4.1983 on the ground
that the aforesaid payments were only part payments of the conversion cost and
refused to accept the drafts. The petitioner by letter dated 2nd May, 1983
addressed to the Director General DL&C, Government of India, Ministry of Defence,
New Delhi submitted that the action of the Military Estate Officer was not
proper and there was no reason as to why the case of the petitioner alone was
singled out and why he refused to accept the part payment, inspite of the
policy of the Government to accept the conversion charges in installments.
petitioner further submitted in the aforesaid letter that in any event, and
without prejudice to the rights and contentions as aforesaid and inspite of
paying the said conversion cost in installments he is, however, ready and
willing to pay the entire amount of Rs.5,78,109 in lump sum.
Cantonment Executive Officer by his letter dated 23rd December, 1983 received 6
by the petitioner in the first week of January, 1984, informed that the
Cantonment Board vide their resolution No. 50 dated 21.10.1983 had resolved to
reject the building plans which were not in conformity with the new scheme of
the building restrictions. Since the building plans submitted by the petitioner
were not in conformity with the new scheme of building restrictions, the same
were rejected and returned. It was also mentioned in the letter that the
petitioner is advised to resubmit the building applications in accordance with
existing building restrictions which would be considered duly on merit. The petitioner
through his Advocate's letter dated 25.1.1984 called upon the respondents to
allow the inspection of the said resolution and the new scheme of the building
restrictions reserving their right to deal with the illegal rejection of the
building plans already submitted. The Cantonment Executive Officer by letter
dated 7.2.1984 addressed to the petitioner's advocate offered to supply the
copies of the resolution No. 50 and the new scheme of the building restrictions
on payment of Rs.40. The resolution No.50 dated 21.10.1983 clearly stated that
in view of the new scheme of building restrictions imposed by the GOC-in-Chief,
Southern Command w.e.f.24.12.1982 the same will be made applicable to all the
building applications which have not been sanctioned. The resolution further
stated that where the sanctions were given for conversion into freehold rights
and where such conversions had not taken effect before 24.12.1982 such
conditional sanctions were invalid and all such building applications not in
conformity with the new scheme of the building restrictions be rejected.
Aggrieved by the action of the respondents rejecting the building plans on the
basis of the aforesaid resolution passed by the Cantonment Board, the
petitioner preferred a Writ Petition No. 908 of 1984 in the High Court.
petitioner in the Writ Petition inter alia prayed that the petitioner was
entitled to construct the building as per plans duly sanctioned by the Board
and the said plans were valid and subsisting. It was further prayed that it may
be declared that the plans of the building submitted by the petitioner and duly
sanctioned by the Board in April, 1981 were operative and the condition imposed
viz., of obtaining the conversion was irrelevant and of no consequence and not
binding on the petitioner. It was also prayed that the resolution No.50 dated
21.10.1983 be declared invalid and inoperative in law and that the new scheme
of building restriction imposed by the GOC-in Chief, Souther Command were
inoperative in law and invalid and in any case the said conditions do not
affect the 7 petitioner's building plans sanctioned by the respondent in April,
1981. It was also prayed that an appropriate writ, direction or order be issued
directing the respondents to accept the amount of conversion charges of Rs. 5,78,109
in equal installments of five years or in any other installments as directed
and laid down by the policy of the Government in their letter dated 18.6.1982
or in such other manner as Hon'ble Court may be pleased to direct.
No. 985 of 1992 The petitioners applied on 1.4.1980 for conversion of the land
from old grant terms into freehold. The Cantonment Board vide resolution No.7(5)
dated 28.6.1980 recommended the conversion of land to freehold. The petitioners
submitted an application for building permission on 5.7.1980. The Cantonment
Board on 4.8.1980 passed a resolution which inter alia stated as under:-
"The following formalities required to be observed and to be communicated
when the plans are to be returned to the applicant. The sanction be made
effective only when the present rights over the land is converted into freehold
by the competent authority and conversion cost as decided by the Government is
deposited by the applicant and subject to clearance from competent authority
ULC, Pune." According to the petitioners, the above resolution was not
communicated to them. The petitioners' architect on 18.8.1980 forwarded two
sets of plans to get them certified by the Cantonment Board for cement purposes
only and assured the Board that if the Government did not sanction conversion
plans, the petitioners would not demand any compensation.
Cantonment Board by letter dated 15.9.1980 forwarded the copy of the plans as
desired for procuring cement and not for any execution of work and expressly
stated that it cannot be deemed as sanction under Section 179 of the Act.
2.2.1983 a notice was given by the petitioners to the Cantonment Board alleged
to be under Section 181 (6) of the Act. The said notice stated that the Board had
failed to communicate the sanctioned plans to the petitioners and that if such
negligence/omission continued for 15 days after the receipt of the notice by
the Board the plans shall be deemed to have been sanctioned. The Contonment
Executive 8 Officer sent a reply on 4.2.1983 stating that the property was held
on old grant terms; that there was no neglect or ommission by the Board and the
building plans would be released only after receipt of sanction for conversion
into freehold rights. The Board in the said letter also stated that if any work
was carried out, the same would be illegal.
Cantonment Board vide its resolution dated 5.2.1983 approved the reply sent by
Cantonment Executive Officer dated 4.2.1983. Again the Board vide letter dated
16.2.1983 warned the petitioners that any threatened work would be illegal. The
petitioners filed an appeal on 5.3.1983 under Section 274 of the Act against
the Board's letters dated 5.2.1983 and 16.2.1983. The Military Estate Officer
by letter dated 2.8.1983 informed the petitioners that the Government had
granted sanction to the conversion of the land into freehold and the payment
was to be made on or before 15.8.1983. On 2.11.1982 the petitioners were
granted permission by the defence Estates Officer to pay the conversion charges
in five equal installments of Rs.1,03,338 each. On 30.1.1984 the petitioners
gave notice to the Board that they were starting building constructions. On
7.2.1984 notice given by the Cantonment Board to the petitioners that as no
sanction had been communicated by the Board to the petitioners that as no
sanction had been communicated by the Board to them, any construction raised by
the petitioners would be illegal. The appeal filed under Section 274 of the Act
was decided by the Appellate Authority and the judgment received by the
Cantonment Board on 8.2.1984. The Board in the meantime vide resolution No.50
dated 21.10.1983 rejected the plans and conveyed the same vide letter dated
10.2.1984. The letter dated 22.2.1984 by which the plans were sought to be
returned was not accepted by the petitioners. The petitioners filed Writ
Petition No. 868/84 in the High Court and obtained an ex parte interim order on
28.2.1984. In February, 1986, it was noticed by Junior Engineer of the
Cantonment Board that the existing building was demolished and excavation work
had commenced by the petitioners. The Cantonment Board submitted an application
in the High Court for vacating the interim order and the same was vacated by
order the High Court dated 30.4.1986. The petitioners raised considerable
constructions between 28.2.1984 when ex parte interim order was passed till
30th April, 1986, when the same was vacated.
regarding sanction to freehold, deposit of construction charges, and
constructions made on the land.
S.L.P. No.647 of 1992 In this case though intimation of sanction for conversion
into freehold was given on 2.3.1983 but not a single pie has been paid till
date towards conversion charges and no constructions have been made by the
No 648 of 1992 In this case according to the Cantonment Board the property is
held by the petitioners on lease in Form A/Cantonment Code of 1899, under
Condition No.2 of the lease. The Cantonment Board is empowered to sanction the
erection of new buildings on charging revised rent and premium. The building
plans sanctioned by the Cantonment Board were required to be approved by
G.O.C.-in-Chief (Director Defence Lands and Cantonments). The Plans were
sanctioned by the Cantonment Board and concurrence of GOC- in- Chief was
obtained. The G.O.C.-in-Chief while giving his concurrence directed the
Cantonment Board to charge full market rent and premium for commercial purpose
vide letter dated 19th October, 1982 called upon the petitioners to pay the revised
rent and premium. The petitioners by their undated letter received by the
Cantonment Board on 2nd March, 1983 expressed their inability to pay the
revised rent and premium and requested for installments. The petitioner as such
has not paid any amount towards rent and premium and the plans which were
sanctioned ceased to be valid as the sanction has not been communicated nor the
same can be said to be into force on 24th December, 1982 when the first scheme
of building restriction came into force. Even otherwise the sanctioned plans
were valid only for a period of one year as per Section 183 of the Act. Thus in
this case not a single pie has been paid towards the revised rent and premium
nor any construction has been made.
No.908 of 1992 In this case vide letter dated 21.1.1984 intimation of sanction
for conversion was given to the petitioner. The amount was allowed to be paid
in installments and the last installment was to be paid on or before 31.8.1985
but the final installment was paid on 30th March, 1990. The petitioners have
made constructions consisting of basement, mezzanine and four upper storeys
with RCC work.
S.L.P. No.969 of 1992 In this case the intimation of sanction for conversion
was conveyed on 15.12.1982 and full price of conversion has been paid and no
construction has been made.
No 976 of 1992 In this case the intimation of sanction for conversion was given
on 12.11.1982. The petitioners paid the first installment on 1.3.1983, second
installment on 9.3.1984 but have not paid the remaining three installments.
Final installment ought to have been paid by 1.3.1987. No constructions have
been made on this plot of land.
No.985 of 1992 In this case the sanction for conversion was intimated on
2.8.83. The first installment was paid on 2.11.1983 and the 5th and final
installment was paid on 3.12.1991. Though final installment ought to have been
paid on or before 1.11.1984.
dealing with the contentions raised before us we deem it proper to set out the
legislative history of the relevant orders and bye-laws made from time to time
during the period in question.
Cantonment is governed by the Cantonments Act, 1924. Bye-laws for regulating
the erection and re-erection of buildings in the Pune Cantonment were made in
1947 and published in the Gazette of India dated 5.4.1947.
GOC-in-Chief, Southern Command issued an order dated 24.12.1982 in exercise of
power under sub-section (2) of Section 181 of the Act. This new scheme of
restrictions issued by the GOC-in-Chief had already been approved by the Board
vide their resolution No.30 dated 9th December, 1982 laying down the minimum
space required to be left open and floor space index to be adhered to in the
matter of new constructions. The scheme of restrictions was made to come into
force with immediate effect. This order dated 24.12.1982 laid down the floor
area ratio as under:- 11 (a) FLOOR AREA RATIO The permissible FAR shall be 1.5
for purely residential building and 2.00 for building with a mixed residential and
commercial user subject maximum tenement density of 250 T/Ha. provided in a
building with mixed residential and commercial user the commercial user will be
permitted only on the ground floor and the residential user and commercial user
shall not exceed FAR 1.5 and 0.5 respectively.
FRONT OPEN SPACES The minimum set back from existing or proposed road shall be
as under:- (i) For Streets 4 m and above............width 1.5 m.
areas where shops/commercial user exist/proposed 2.25 m." Second scheme of
restrictions dated 26.3.1984 modifying the earlier order dated 24.12.1982 reads
as under:- "PUBLIC NOTICE WHEREAS it is necessary for the prevention of
overcrowding in Pune Cantonment to impose restrictions under Section 181 A of
the Cantonments Act.
WHEREAS public notice inviting objections has been issued in this behalf.
WHEREAS I have carefully considered all the objections received in reply to the
WHEREAS I am satisfied that such a scheme of restrictions is necessary to
prevent overcrowding in Pune Cantonment.
THEREFORE in exercise of the powers vested in me ` 12 under Section 181 A of
the Cantonments Act 1924, I hereby sanction the following scheme of
restrictions:- (a) The permissible Floor Space Index shall be 1 in the civil
area notified under Section 43 A of the Cantonments Act and bazar areas
notified under Rule 2(b) of the Cantonment Land Administration Rules,1937 and
0.5 in the remaining areas of Pune Cantonment.
Marginal open space alone the periphery of land or plot shall be 4.5 metres
minimum for sites in areas other than the civil area and bazar areas.
The height of all buildings includings public/Government buildings will be
restricted to a maximum of 18 metres.
The Maximum number of storeys permissible shall be ground plus two floors in
all areas of the Cantonment.
order will come into force with immediate effect.
earlier order issued under Headquarters Southern Command letter No.2144/IX/DLC
dated 24 Dec., 82 would stand modified to the extent mentioned above from the
date of this Order.
OBEROI Dated 26th March, 1984 Lieutenant General GENERAL OFFICER
COMMANDING-IN-CHIEF NOTE:- It is clarified for information of the general
public that the above orders will be effective from the date the GOC-in C,
HQSC, has signed the above order i.e. 26th March, 1984.
restrictions will apply only to the buildings whose plans will be
considered/passed on or after 26.3.84. Building plans passed prior to 26.3.84
will be governed by the FSI existing during that period.
4th April, 1984 Sd/-SP NIJHAWAN CANTONMENT EXECUTIVE OFFICER PUNE" 13 Pune
Cantonment (Building) Bye-Laws 1988 published in the Gazette dated April 30,
1988. These bye-laws have been framed in exercise of the powers conferred by
Section 186 and 283 of the Act after inviting objections and suggestions. Open
space and height limitations in notified civil area, bazar area and remaining
areas in accordance with byelaw No. 21, 23, 24 and 25 now reads as under:-
"APPENDIX 'H' (See Byelaw Nos. 21, 23, 24 and 25) OPEN SPACE AND HEIGHT
LIMITATIONS IN NOTIFIED CIVIL AREA BAZAR, BAZAR AREA AND REMAINING AREAS.
permissible floor area ratio shall be as per details given below:-
permissible F.A.R shall be 100 in the civil area notified under Section 43-A of
the Cantonments Act, 1924 and bazar area notified under Rule 2-B of Cantonment
Land Administration Rules, 1937 and in Ghorpuri Village and Bhairoba Nallan
area, the land of which area is under the management of the Collector, Pune
District within the limits of the Cantonment, but owned by private individuals.
The F.A.R in area other than mentioned above shall be 50.
open space along the periphery of land or plot shall be 4.5 metres minimum for
sites in area other than the civil area. Ghorpuri Village, Bazar areas and Bhairoba
erection or re-erection of a building shall be permissible beyond the set-back
line, which shall be determined by adding one metre to the existing width of the
street or in accordance with the road widening scheme of the Board, whichever
is more, in notified civil area or notified Bazar Area, Ghorpuri Village and Bhairoba
demolition and re-construction scheme of a property in these areas, if the
number of existing tenements exceeds 250 per hectare and the existing FAR of
the property is more than 14 125, the FAR for such scheme may be permitted upto
25 per cent above the permissible FAR of 100.
height of all buildings will be restricted to a maximum of 18 metres.
maximum number of storeys permissible shall be ground plus two floors in all
areas of the Cantonment.
No. 12/15//C/L&C/73] G.S. SOHAI, Cantonment Executive Officer" A
common feature of all the above cases is that the petitioners were relying on
the building plans submitted before the first scheme of building restrictions
was brought into force on 24.12.1982. The petitioners were intimated that their
plans could be sanctioned only after conversion of the old grants into freehold
tenure and subject to the payment of conversion charges by them. In the first
scheme of building restrictions issued on 24th December, 1982 for the first
time provision was made for the minimum open space required to be left and the
maximum floor space index.
to this scheme the permissible F.A.R was kept as
purely residential buildings and 2.00 for buildings with a mixed residential
and commercial user subject to maximum tenement density of 250 T/Hs provided in
a building with mixed residential and commercial user. The commercial user will
be permitted only on the ground floor and the residential user and commercial
user shall not exceed F.A.R
0.5 respectively. None of the petitioners were willing to accept the aforesaid
scheme and did not submit fresh building plans in accordance with the first
scheme of restriction of 24th December, 1982. In view of the fact that there
was no such restriction in the Pune Cantonment Building Bye Laws, 1947, the
petitioners were taking the stand that the building plans already submitted by
them before 24-12-1982 should be approved. It is no longer in dispute on behalf
of the petitioners that the respondents had right to put a condition of old
grants to be converted into freehold but their stand was that the scheme of
restrictions issued by the G.O.C.-in-Chief dated 24.12.1982 should not be made
applicable in their cases.
other hand, the Cantonment Board had taken a clear stand that in or about the
late 1970's and early 1980,s a large number of builders in order to take
advantage of the lenient building regulations in the 15 Cantonment of Pune had
come forward and had started building activities. However, the G.O.C-in-Chief
took notice of the fact that the existing bye-laws did not contain adequate
provisions to prevent over crowding as a result of haphazard and high-rise
constructions. The Cantonment Board, Pune had also prepared a scheme laying
down the minimum open space required to be left open when new constructions
were undertaken and also laying down the maximum floor space under resolution
dated 9th December, 1982. The Government also decided as a policy matter that
the building plans be sanctioned after converting the land from old grant to
freehold tenure. According to the Cantonment Board, some of the builders had
started constructing building in blatant disregard of the first scheme of
restriction dated 24th
December, 1982 and
also without making the full payment of conversion charges. The Board had also
passed a resolution No. 50 dated 21st October, 1983 to reject the building plans which
were not in conformity with the new scheme of the building restrictions and the
same were rejected and returned. It was also intimated to the petitioners to
re- submit the building applications in accordance with the new scheme of
building restrictions and the same would be considered and disposed of on
merit. It may be further noted that the Cantonment Board by its resolution of
October 30, 1981 had resolved that the sanction was valid only for procuring
cement and not for execution of work and no construction should be started till
final sanction for conversion was received from the Government. On November 17, 1981 the Cantonment Board forwarded a
copy of the Plan to the petitioners for procuring cement only and in clear
terms stating that it should not be deemed to have been sanctioned under
Section 179 of the Act. In spite of this, some of the petitioners demolished
the structure with a view to construct a new building.
aggrieved by the aforesaid action taken by the Cantonment Board, the
petitioners filed writ petitions in the High Court. A Division Bench of the
High Court comprising of Justice Sawant (as he then was) and Justice Kantharia
gave a detailed Judgment in W.P. Nos.2236 and 2237 of 1983 vide order dated
15.4.1987. As already mentioned above the impugned orders dated 18.10.1991 in
the case of the present petitioners, have followed the earlier decision dated
15.4.1987. The High Court in its Judgment dated 15.4.1987 held that till the
conversion was granted, the application for construction was to be refused
under Section 181 (4)(b) of the Act on the ground that there was dispute within
the meaning of the said provisions. It was also held that till all the
formalities required by the 16 grantee of the conversion including the payment
in full of the cost of the conversion was completed by him the conversion was
not to be deemed to have been made and, therefore, the plans could not be
sanctioned by the Board till that time. No plan for construction could have
been sanctioned till the conversion was accepted by the petitioners themselves
on the terms it was granted and payment of the cost of conversion was made. It
was also held that in fact no sanction has been given to the building plans for
construction. The Board in its resolution had made it clear the the plans would
not be effective till the conversion was granted and the amount was deposited
as directed by the Government. The condition of conversion was not severable
from the sanction to the plan. It was on the other hand a condition precedent
and foundation of the sanction. It was not in conflict with the bye-laws. And
even if that be so, the scheme being later in point of time will prevail over
the bye-laws when there will be a conflict between the two. It was further held
by the High Court that the Board will have to sanction a plan afresh after
conversion of a grant. Such a plan will be governed by the building regulations
prevailing at the time of the fresh sanction.
further important to note that the petitioners in the writ petitions were
seeking a relief to give a direction to the respondents to allow the
petitioners to make constructions on the basis of the building plans submitted
by them prior to 24.12.1982 and not be apply the restrictions imposed in the
scheme of restrictions brought into force on 24th December, 1982. Thereafter
the G.O.C-in- Chief issued the second scheme of restrictions on 26th March, 1984 in exercise of the powers vested in
him under Section 181A of the Act whereby further restrictions were put in the
matter of floor space index as well as in the height of the buildings.
According to this second scheme of restrictions, the height of the building was
restricted to a maximum of 18 metres. The maximum number of storeys permissible
shall be ground plus two floors in all areas of the Cantonment and the
permissible F.A.R was reduced to 1.0 in the civil/bazar areas. It may be
further noted that the earlier bye-laws of 1947 have been superseded by the Pune
Cantonment (building) bye-laws 1988 made in exercise of the powers conferred
under Section 186 and 283 of the Act and the new bye-laws of 1988 have been
published in the Gazette of April 30, 1988.
These bye-laws of 1988 have approved the second scheme of building restrictions
dated 26.3.1984 in the matter to open spaces, area and height.
limitations of the buildings in the Cantonment of Pune.
now contended before us on behalf of the petitioners that they are willing to
abide by the first scheme of restrictions of 24th December, 1982 and the
petitioners may be permitted to furnish building plans in accordance with the
said scheme and it may be held that the second scheme of restrictions dated
26.3.1984 and the bye- laws of 1988 are not applicable in their case. In case
of the petitioners in S.L.P. Nos.908/92 and 985/92 it has been further
contended that they have already raised constructions and as such so far as
these two cases are concerned the constructions already raised may be allowed
to be kept intact. It has been submitted that so far as the petitioner in
S.L.P. No.985 of 1992 is concerned no constructions were made in illegal manner
but the same were made between 28.2.1984 and 30.4.1986 during which period the
stay order passed by the High Court remained in force.
have considered the arguments advanced before us and we are clearly of the view
that there is no force in any of these special leave petitions. The builders
are playing the game of hide and seek and did not come in a straight forward
manner accepting the first scheme of restrictions on buildings brought into
force as back as on 24th December, 1982 and went on insisting that the said
scheme of restrictions was not binding on them. We cannot be oblivious to the
fact of thrust of population in all the Urban cities in our country and the
problem of basic amenities to be made available to the residents of the cities
including Pune. We are already in the last decade of the 20th century and all
planning is to be done on a long term basis taking note of the growth of
industries and over crowding of population causing environmental and pollution
problems in the cities. Growing awareness of these problems has activated the
Government as well as the various social activists in taking notice of this
menacing problem which is posing a danger to the very survival and existence of
appears from the record that the Union Ministry of Environment, State of Maharashtra, National Commission on
Urbanization and expert working group on Cantonment areas took notice of this
problem in the city of Pune and suggested schemes which took
the shape of orders issued by the G.O.C.-in-Chief, Southern Command and
amendments in the bye-laws by the Cantonment Board. The petitioners did not acquire
any legal right in respect of building plans until the same were sanctioned in
their favour 18 after having paid the total amount of conversion charges in
lump sum or in terms of sanctioned installments and getting conversion of their
land in free-hold tenure. The first scheme of restrictions was brought into
force long back on 24th
December, 1982 and the
second on 26th March,
1984. The petitioners
did not submit any fresh building plans in accordance with the first or the
second scheme of restrictions. Many of the petitioners have not paid a single
pie towards the conversion charges, some of them have paid only few
installments and the others though have paid the installments but not according
to the schedule. In any case, the High Court is right in taking the view that
the building plans can only be sanctioned according to the building regulations
prevailing at the time of sanctioning of such building plans. At present the
statutory bye-laws published on 30th April, 1988 are in force and the fresh building
plans to be submitted by the petitioners, if any, shall now be governed by
these bye-laws and not by any other bye-laws or schemes which are no longer in
force now. If we consider a reverse case where building regulations are amended
more favourably to the builders before sanctioning of building plans already
submitted, the builders would certainly claim and get the advantage of the
regulations amended to their benefit.
National Commission on Urbanization appointed by the Government of India has submitted
its report in August, 1988. In its report at points 12.6.18 and 12.6.19 it has
recommended for the Cantonment Board Pune as under:- "12.6.18 Pune is a
recent example of how an unbridled Cantonment Board promoted development on a
vastly larger scale than prevailed in the adjoining municipal areas,
effectively abolished ceilings on FAR for commercial constructions and even
permitted the sale of land to private parties on a free-hold basis for
residential and commercial development. The impact on the rest of the city in
terms of congestion and civic services was disastrous, especially since the
cantonment land involved happened to be in the heart of Pune.
Realising the destructive effect of such developments on the character of
cantonment towns, (a character which, the Defence Authorities are unanimously
agreed, is imperative to preserve from the point of view of morale of the 19
armed forces and congeniality of surroundings) the Ministry of Environment has
accepted in 1986 the recommendations of the Report of the Working Group on
Cantonment Areas set up jointly by the Department of Environment and the
Ministry of Defence proposing uniform norms for urban development and
conservation in all Cantonment areas in the Southern Command. Among the recommendations
was the urgent suggestion that FAR in cantonments must be reduced to a maximum
of ONE (1:1) in civil and bazar areas and to 0.5 in the bungalow areas, with a
maximum height to 18m and a maximum of ground plus two storeys. This was based
on the experience of Pune and is the norm for all the 15 cantonments in the
Southern Command. It should be tailored downwards for smaller cantonments such
working group appointed by the Government of India, Department of Environment
by order dated July 12,
1984 to formulate
environmental guidelines for the planning of military station has also made the
following recommendations. The relevant recommendations for the Cantonment
Board, Pune are reproduced as under:
this connection, the working Group would like to stress the importance and
necessity for effective building controls and regulations without which any
plan for urban renewal of Cantonments cannot be effectively pursued. The group
had occasion to visit Poona Cantonment and study the building restrictions in
vogue in the light of a number of representations received from a Bombay- based environmental group. In Poona
Cantonment Area the spurt in building activities began in 1976 when Government liberalised
the land policy to allow the conversion of old grant sites in civil areas of
the Cantonment into free-hold. The intention was basically to help those
families who live in the Cantonment where housing was inadequate. Prior to
December, 1982, the building bye-laws of Poona Cantonment Board did not provide
for any restrictions on floor space index (FSI) or height of buildings. Owing
to non-existence of FSI restrictions, high-rise building came up in the densely
populated civil area of the Cantonment. In order to prevent over-crowding and
congestions and ensure sanitation, 20 it became necessary for the GOC-in-C, the
command to intervene in exercise of the powers vested in him under Section
181-A of the Cantonments Act, 1924 and impose a scheme of restriction in March,
The FSI was restricted to 1 in the 'civil' and 'bazar' areas and 0.5 in the 'bangalow'
height of buildings was stipulated as 18 mtrs.
number of storeys is to be ground plus 2.
Cantonment Board has initiated amendments to the building bye-laws
incorporating the above restrictions which are stated to be under the
consideration of Government. The possibility of land speculators and builders
taking advantage of they policy to permit conversion of old grant sites into
free hold, as pointed out above, lies at one end of the spectrum. At the other
end is the inability of the urban-dwellers to build new houses in place of the
dilapidated house or tenement or bungalow. Even where the Government has
resumed the bungalows it is not in a position to reconstruct them for want of
resources. The working Group is of the view that the land policy of the
Government in regard to the civil areas of the Cantonment should be more
liberal so as to contribute to urban renewal. However it would be required to
tighten building controls and regulations, if environmental degradation, as it
has taken place in Poona Cantonment on account of the laxity of such controls
and regulations, is not to occur in other Cantonments." One of the
suggestions and recommendations reads as under:- "The group has observed
that building bye-laws particularly the FSI restrictions are now being enforced
in 15 cantonments falling under the Southern Command. Building regulations are
essential to control the quality of built environment. It is recommended that
similar steps should be taken in all cantonments through out the country and
rigidly enforced to stop commercial building activities within the limits of
military establishments, as had occurred in Pune Cantonment".
None of the petitioners have submitted fresh building plans according to the
scheme of building restrictions in force at the relevant time and no sanction
was accorded in favour of any of the petitioners to the building plans
submitted originally. In case, petitioners shall submit fresh building plans
now the same would be governed by the new bye-laws which have already come into
force on 30.4.1988.
schemes of building restrictions made by GOC-in- Chief dated 24.12.1982 and
26.3.1984 and amended bye-laws in 1988 putting restrictions and reducing the
height and floor space index in respect of multi-storeyed buildings have been
made in larger public interest and for the benefit of the entire population of
the city of Pune. No argument challenging the
validity of such schemes or bye-laws have been addressed before us. The slogan
of the builders and land owners of utilising the maximum area for construction
of high-rise buildings for fulfilling the need of houses in big urban cities
should always be subservient to the building restrictions and regulations made
in the larger interest of the whole inhabitants of Pune and keeping in view the
influx of population, environment hazards, sanitation, provision for supply of
water, electricity and other amenities.
couplet in Telugu translated in English is quoted:- "I will not stop
cutting down trees, Though there is life in them.
not stop plucking out leaves, Though they make nature beautiful.
not stop hacking off branches, Though they are the arms of a tree.
- I need a hut." It was also contended on behalf of the petitioners that
this Court by an order dated 23rd February, 1990 in Shoriar Baharam Irani & Ors. v. Pune Cantonment Board & Ors.
in civil Appeal No. 2184 of 1987 filed against the judgment of the High Court
dated 15.4.1987, have allowed the appellants of that case to make constructions
in accordance with the building plan as sanctioned by the Cantonment Board
subject to the restrictions imposed by the order of the GOC-in-Chief dated
24.12.1982. It is submitted that the cases of the petitioners are identical and
as such they are also entitled to a similar order as passed in the above
mentioned 22 case. We find no force in this contention. In the order dated
23.2.1990 referred to above, it was clearly observed as under:- "It is
stated before us that a number of petitions are pending before the Bombay High
Court challenging the validity of various building plans sanctioned by the
Cantonment Board, Pune, in respect of other parties. We accordingly make it
clear that this order will not effect the questions raised in those petitions,
as we express no opinion on the merit of the contentions raised by the parties.
However, we direct that the Writ Petition No. 156/87 and Writ Petition No.
1547/87 pending before the Bombay High Court against the appellants will stand
disposed of in terms of this order.
appeals are accordingly disposed of without expressing any opinion on the
contentions raised by the parties or on the questions decided by the High Court,
under appeal." A perusal of the observations made in the above order leave
no manner of doubt that this Court had clearly mentioned that it was not
expressing any opinion on the contentions raised by the parties nor on the
questions decided by the High Court. Thus, the above decision cannot be
considered as a precedent for the cases in hand before us and no help can be
sought by the petitioners on the questions now raised before us and decided by
giving detailed reasons as mentioned above.
result, we find no force in these petitions and the same are dismissed with no
order as to costs.