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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   Thereafter, the Board framed  new  bye-laws known  as  Pune Cantonment (Building) Bye-laws,  1988  which superseded  the 1947 Bye-laws.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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                                                     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.          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                                                      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.      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                                                        14          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                                                        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.      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.                                                        17 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                                                        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

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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                                                        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 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,                                                        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,          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".                                                        21      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                                                        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.          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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