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TMI Blog1992 (5) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 3. The original owners submitted an application for conversion of the old gram 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lumpsum. The Cantonment Executive officer by his letter dated 23rd December, 1983 received 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 the petitioner's advocate offered to supply the copies of the resolution No. 50 and the new scheme of the building restrictions on payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 980. 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. 7. 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 15.9.1989 forwarded the copy of the lands as desired for procuring cement and not for any execution of work and expressly stated that it cannot be deemed as sanction under Section 179 of the Act. On 2.2.1983 a notice was given by the petitioner to the Cantonment Board alleged to be under Section 181(6) of the Act. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication in the High Court for vacating the interim order and the same was vacated by order of 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. S.L.P. No. 647 of 1992 8. 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 9. In this case according to the Cantonment Board the property is held by the petitioners on lease in Form A/Cantonment Code of 1899, under Condition No. 2 of the lease. The Cantonment Board is empowered to sanction the erection of new building 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. 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 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: (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 SP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated April 30, 1988. These bye-laws have been framed in exercise of the powers conferred by Sections 186 and 283 of the Act after inviting objections and suggestions. Open space and height limitations in notified civil area and remaining areas in accordance with bye-law No. 21, 23, 24 and 25 now reads as under: APPENDIX 'H' (See Bye-law No. 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 Nalla 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 meters minimum for sites in area other than the civil area. Ghorpuri Village, Bazar areas and Bhairoba Nalla area. 3. No erection or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. 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 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 has 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 buildings in blatant disregard of the first scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct no sanction has been given to the building plans for construction. The Board in its resolution had made it clear that 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 also held that the new scheme formulated by the G.O.C.-in-Chief on December 24, 1982 was legislative in nature. 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 the conversion of a grant. Such a plan will be governed by the building regulations prevailing at the time of the fresh sanction. 21. 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 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. It appears from the record that the Union Ministry of Environment, State of Maharashtra, National Commission on Urbanization and expert working group of 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 rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of moral of the 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 maximum of ONE (1:1) in civil and bazar areas and to 0.5 in the bungalow areas, with a maximum height of 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. 26. 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 importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the laxity of such controls and regulations, is not to occur in other Cantonments. 27. 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. 28. 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. 29. The scheme 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 flo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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