KALPATARU BUILDERS PUNE Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition invoking Article 226 of the constitution is filed by the assignees of the original lessees of a property owned by the Union of India situated in the Pune Cantonment Board area. It seeks a writ of certiorari, mandamus and prohibition against the respondents concerning the refusal of the respondents to sanction the building plans submitted by the petitioners. Amongst others, the petitioners seek to challenge the resolution of the Cantonment Board dated 11th October 1996 rejecting the building plans of a commercial complex submitted by the petitioners in view of the objection raised by the Respondent No. 3 - Defence Estate Officer under section 181 (3) of the Cantonments Act, 1924 (hereinafter referred to as "the Act" ). Respondents Nos. 1 to 3 and 6 to this petition are the Union of india, Director of Defence Estate, Pune, Defence Estate Officer (Pune Circle)and the General Officer, Commanding-in-Chief, Southern Command having his Head Office at Pune. Respondents Nos. 5 and 4 to the petition are the pune Cantonment Board and its Executive Officer respectively. The cantonment Board is the planning authority for the areas covered by it under the scheme of the Act.

(2.) SHORTLY stated the submissions of the Petitioners are two-fold. Firstly, that in view of the inordinate delay on the part of the Respondents (as claimed by the Petitioners) in taking the decision within the statutory period on their application for carrying out the construction, the sanction of the Cantonment board is deemed to be granted under section 181 (6) of the Act. The second and alternative submission is that in view of the Respondents not giving any reasons for their impugned refusal, their decision is void and bad in law and is arbitrary and deserves to be set aside. It is submitted that in the area nearby this property, construction for commercial purposes is permitted. Therefore, the prayer for the writ of certiorari to quash the decision of the respondents and for mandamus directing them to grant the necessary sanction and also the writ of prohibition not to act thereon.

(3.) AS against this case of the Petitioners, the Respondents submit that granting of any such building permission would be violative of the terms of the lease under which the land was leased out to the original lessees since a prior written consent of GOC-in-C was necessary thereunder. Therefore, the cantonment Board could have refused to sanction the building plan at the outset under section 181 (4) (a) of the Act. Alternatively, it is submitted that in any case the proposal of the Petitioners was forwarded by the Board to the defence Estate Officer and on receiving his report, the decision has been conveyed to the Petitioners immediately and, therefore, there was no occasion to invoke the deeming provision under section 181 (6) of the Act. Thirdly, in any case, it is submitted on merits that the authorities of the Defence Ministry have explained that the land was required to be utilised for married officers' accommodation and hence the plans could not be approved. Thus there is a complete explanation in law and on facts.