RAJESH AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is the third round of litigation involving the Petitioner and the Respondents pertaining to sanction of the building plans submitted by the Petitioner for development of the property at Bungalow No. 167, Chapel Street, Meerut Cantonment.

(2.) EARLIER the Petitioner filed Writ Petition (Civil) No. 1056 of 2009 challenging an order dated 20th February 2009 whereby in exercise of its power to review under Section 57 of the Cantonments Act, 2006 (,,CA 2006) the Government of India (,,GOI) in the Ministry of Defence (MoD) (Respondent No.1) set aside a decision dated 4th January 2008 of the Cantonment Board (,,CB), Meerut (Respondent No. 3) sanctioning the building plans submitted by the Petitioner. By its decision dated 16th February 2010, this Court allowed the said writ petition and set aside the said order dated 20th February 2009 of the GOI, as communicated to the CEO, CB Meerut on 25th February 2009, essentially on the ground that it had been passed without affording the Petitioner an opportunity of being heard. The case was remanded to the GOI for a fresh consideration of the entire matter and giving the Petitioner an opportunity of being heard. Pursuant to the above remand, on 4th May 2010 the MoD again passed a speaking order which was challenged by the Petitioner in Writ Petition (Civil) No. 3971 of 2010 in this Court. On 19th October 2010 the said writ petition was disposed of by this Court by the following order:

(3.) THE facts of the present case, which will be set out in some detail hereafter, and the issues arising for determination, necessitate an examination of the relevant statutory provisions. THE Cantonments Act, 1924 (,,CA 1924) was enacted to consolidate and amend the law relating to administration of cantonments. Section 10 CA 1924 states that for every cantonment there is to be a CB. Section 24 CA 1924 provides for the appointment of an Executive Officer (,,EO) who shall be the Secretary of the CB. Section 24A CA 1924 prescribes the duties to be performed by the EO which includes the duty of exercising supervision and control over the acts and proceedings of the CB and being responsible for custody of all the records of the CB. Section 43-A was inserted in the CA in 1936. THEre is no definition of the expression "bazaar area". THE common dictionary meaning of a bazaar area is a place where goods are bought and sold. Rule 2 (b) of the Cantonment Land Administration Rules, 1937 (,,CLAR) enforced with effect from 20th November 1947 defines a bazaar area as an area declared under Section 43-A CA 1924. Rule 3 provides for the preparation of a general lands register (,,GLR) for all lands in the cantonment inside the bazaar and outside the bazaar. Rule 10 provides for maintenance of the GLR. Rule 43 provides that the Military Estate Officer (,,MEO) should supply to the CB the extract of the GLR prepared under Rule 3 in respect of all lands in the bazaar the management of which has been entrusted to or vests in the CB. Rule 45 CLAR requires the maintenance of GLR to be performed by the CB in respect of land in the bazaar and the management of which has been entrusted to, or vests in the CB. By way of an amendment to Section 43-A in 1954, the expression "bazaar area" was substituted by the expression "civil area". Under Section 2 (vii-a) a civil area means an area declared to be a civil area by the Central Government under Section 43-A. From the documents pertaining to the years prior to the substitution of "bazaar area" with "civil area" it appears that residential areas continued to be called as such although they were interspersed with a market or bazaar or commercial areas meant for the residents living in a residential area. It also appears from the entries in the GLR that the word ,,bungalow was used to describe both a residential plot as well as a plot for residential and commercial use. THE CA 1924 did not provide for any clear demarcation between residential and commercial areas as found in the urban development statutes. THE above scheme of the CA 1924 by and large remains unchanged in the CA 2006. THE CB and in some matters its CEO have been given wide powers to decide on land use as well administration of the lands in a cantonment area. It is the CB which maintains the GLR as well. Further, in terms of the provisions of the CLAR, the GLR is meant to record the categories of lands, their ownership and/or occupation and incidentally also the land use. In Maman Singh v. Emperor AIR 1935 Lahore 588 it was observed that if the GLR was not carefully prepared, it was not possible to place reliance upon it without corroborating evidence from other records of the CB. With the above broad overview of the applicable legal provisions, the facts of the case may now be examined.