Full Judgment Text
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PETITIONER:
USMAN GANI J. KHATRI OF BOMBAY ETC. ETC.
Vs.
RESPONDENT:
CANTONMENT BOARD AND ORS. ETC. ETC.
DATE OF JUDGMENT01/05/1992
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
RAMASWAMY, K.
CITATION:
1994 AIR 233 1992 SCR (3) 1
1992 SCC (3) 455 JT 1992 (4) 539
1992 SCALE (1)1068
ACT:
Pune Cantonment (Building) Bye-Laws, 1988:
Scheme 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 sanction.
HEADNOTE:
Bye-laws 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superseded the 1947 Bye-laws.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.
The 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
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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.
Being 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.
Against the said judgment of the High Court, the
petitioners have preferred the present Special Leave
Petitions.
The 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.
Dismissing the petitions, this Court,
HELD: 1. The 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
2. 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]
3. The 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
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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]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Special Leave Petition
(C) No. 647 of 1992 etc. etc.
From the Judgment and Order dated 18.10.1991 of the
Bombay High Court in W.P. No. 908 of 1984.
Soli 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 Respondents.
The Judgement 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.
The 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.
In SLP 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:-
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"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.
Government 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.
The 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.
The 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
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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.
The 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
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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.
In SLP 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.
The Cantonment Board by letter dated 15.9.1980 forwarded the
copy of the plans as desired for procuring cement and not
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for any execution of work and expressly stated that it
cannot be deemed as sanction under Section 179 of the Act.
On 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.
The 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.
Facts regarding sanction to freehold, deposit of
construction charges, and constructions made on the land.
9
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
petitioners.
S.L.P. No 648 of 1992
In this case according to the Cantonment Board the
property is held by the petitioners on lease in Form
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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.
S.L.P. 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.
10
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.
S.L.P. 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.
S.L.P. 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.
Before 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.
The Pune 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.
The 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
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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.
(b) 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.
(ii) and 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.
AND WHEREAS public notice inviting objections has
been issued in this behalf.
AND WHEREAS I have carefully considered all the
objections received in reply to the public notice.
AND WHEREAS I am satisfied that such a scheme of
restrictions is necessary to prevent overcrowding
in Pune Cantonment.
NOW 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.
(b) 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.
(c) The height of all buildings includings
public/Government buildings will be restricted to a
maximum of 18 metres.
(d) The Maximum number of storeys permissible shall
be ground plus two floors in all areas of the
Cantonment.
This order will come into force with immediate effect.
The 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.
PUNE
Sd/-TS OBEROI
Dated 26th March, 1984 Lieutenant General
GENERAL OFFICER COMMANDING-IN-CHIEF
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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.
These 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.
Dt. 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.
The permissible floor area ratio shall be as per
details given below:-
1. The 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.
2.Marginal 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 Nalla area.
3.No 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 Nalla area.
In the 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
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125, the FAR for such scheme may be permitted upto
25 per cent above the permissible FAR of 100.
4. The height of all buildings will be restricted
to a maximum of 18 metres.
5. The maximum number of storeys permissible shall
be ground plus two floors in all areas of the
Cantonment.
[File 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
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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.
According to this scheme the permissible F.A.R was kept as
1.5 for 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
1.5 and 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.
On the 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.
Being aggrieved by the aforesaid action taken by the
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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
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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.
It is 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.
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limitations of the buildings in the Cantonment of Pune.
It was now contended before us on behalf of the
petitioners that they are willing to abide by the first
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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.
We 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 human
race.
It 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
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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
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of building plans already submitted, the builders would
certainly claim and get the advantage of the regulations
amended to their benefit.
The 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.
12.6.19 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
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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 as Wellington.
The 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:
"In 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
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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,
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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,
1984.
(a) The FSI was restricted to 1 in the
’civil’ and ’bazar’ areas and 0.5 in the
’bangalow’ areas.
(b) maximum height of buildings was
stipulated as 18 mtrs.
(c) maximum number of storeys is to be ground
plus 2.
The 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".
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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.
The 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
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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.
A couplet in Telugu translated in English is quoted:-
"I will not stop cutting down trees,
Though there is life in them.
I will not stop plucking out leaves,
Though they make nature beautiful.
I will not stop hacking off branches,
Though they are the arms of a tree.
Because -
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
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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.
The 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.
In the result, we find no force in these petitions and
the same are dismissed with no order as to costs.
G.N. Petitions dismissed.
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