Authorities cannot refuse permissible residential construction on a subsisting lease based solely on speculative future resumption.

The petitioners were leaseholders of separate plots forming part of Survey No. 30, Queen’s Garden, Pune Cantonment. The original lease was granted in 1944 for a dwelling house and was successively transferred, subdivided and renewed. The leases were ultimately renewed up to 30 November 2033, with construction requiring prior permission of the competent defence authority.

In Writ Petition No. 9218 of 2025, the petitioners applied on 10 July 2020 for permission to construct a residential bungalow for personal use. In Writ Petition No. 9220 of 2025, the petitioner applied on 13 September 2022 for permission to construct a residential dwelling. The applications remained pending for substantial periods.

The Defence Estate authorities declined consent, citing the impending expiry of the leases, proposed future use of the land for defence purposes, possible financial liability arising from compensation for authorised construction, audit objections concerning an adjoining plot, and security and operational concerns.

The Pune Cantonment Board consequently rejected the applications, stating that the Government had raised an objection under Section 238(3) of the Cantonments Act, 2006.

The petitioners challenged the rejection communications and sought directions requiring the respondents to sanction the building plans. They also gave undertakings that the constructions would be used only as personal residences, would not be commercialised or transferred to third parties, and would not create equities or compensation claims upon expiry or non-renewal of the leases.

1. Whether the writ petitions were maintainable despite the statutory appellate remedy under Section 340 read with Schedule V of the Cantonments Act, 2006?

2. Whether the respondents could refuse permission for residential construction on the ground that the leases would expire in 2033 and that the land might thereafter be required for defence purposes?

3. Whether the refusal was based on relevant and legally sustainable considerations under Section 238 of the Cantonments Act, the lease conditions and applicable defence-land policies?

4. Whether denial of permission, despite permission having been granted for construction on similarly situated adjoining plots, amounted to unequal treatment under Article 14 of the Constitution?

5. Whether the petitioners’ undertakings could sufficiently safeguard the respondents’ concerns regarding future resumption, third-party rights, commercial use and compensation?

The Court applied Sections 235 and 238(3)–(5) of the Cantonments Act, 2006, under which building applications in cantonment areas may require consideration of Government objections and must be dealt with through a legally sustainable decision-making process.

Section 340 read with Schedule V provides an appellate remedy against decisions under Section 238.

The Court also applied the lease conditions under Schedule VIII of the Cantonment Land Administration Rules, 1937, particularly the requirement of prior permission for erection of buildings, while noting that residential dwelling construction was not prohibited as such.

Clause 2(II)(a) of the Land Policy in Cantonments recognises continuation of existing leasehold sites during the lease term and provides for ex gratia compensation in specified cases where authorised constructions vest in the Government upon non-renewal.

Judicial review under Article 226 examines the legality, relevance and rationality of the decision-making process and does not permit administrative power to be exercised arbitrarily; the Court referred to Tata Cellular v. Union of India, (1994) 6 SCC 651, on judicial restraint and review of the decision-making process.

The Court also considered the principle under Article 14 that differential treatment must be supported by a rational and intelligible basis, and the principle that reasons subsequently supplied in affidavits cannot cure an otherwise defective decision-making process.

The Court held that the proposed construction was limited to residential bungalows for the petitioners’ personal use and was not intended to alter the defence character of the land, commercialise it or create a development inconsistent with the lease.

Although the lease required prior permission, that requirement did not confer an unfettered power to prohibit construction on grounds unrelated to the present application.

The respondents’ objections were founded principally on apprehensions that construction might complicate future resumption, create third-party interests or result in compensation liability.

The Court found that no concrete defence project, sanctioned plan, identified commencement date or immediate operational requirement for these particular plots had been demonstrated, despite similar assertions having been made for many years.

The subsisting leases could not be treated as though they had already expired merely because only approximately seven years remained.

The respondents could decide in accordance with law and the policy prevailing in 2033 whether to renew or resume the land, but that future decision did not, by itself, extinguish the petitioners’ present leasehold rights.

The petitioners’ undertakings substantially addressed the concerns regarding personal use, non-commercialisation, non-creation of third-party rights, non-claim of equities and compliance with the legal consequences of expiry or non-renewal.

The Court further found that the respondents had not satisfactorily explained why similarly situated holders of adjoining plots had been permitted to construct buildings while the petitioners were refused permission, particularly when the leases were stated to expire on the same date.

The later audit objection concerning Plot 5-D did not adequately establish a rational basis for the distinction.

Accordingly, the refusal was held to be unsupported by relevant considerations and legally unsustainable.

Both writ petitions were allowed in terms of the prayers, and the respondents were directed to issue the appropriate permissions within 30 days, after the petitioners submitted individual affidavits incorporating the eight existing undertakings and the two additional conditions imposed by the Court.

The additional conditions prohibited the petitioners from creating, directly or indirectly, any rights in favour of builders, developers or promoters; any violation would be illegal and non est and would create no enforceable equity in favour of such third parties.

The Court clarified that permission to construct did not confer any right to renewal beyond 30 November 2033, did not restrict the Government’s power to resume the land for defence purposes, and would not entitle the petitioners to claim equity merely because construction had been permitted.

Rule was made absolute in those terms.