S L SETH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners herein are said to be the persons, who have obtained the lease on transfer from the original lessee and are aggrieved by the action of the respondents, rejecting their application for grant of building permission. During the pendency of the writ petition certain members of the family have died and substitution of legal representatives has been ordered. Brief facts giving rise to filing of present writ petition are that the land measuring 2.60 acres known as Bungalow No. 5 situated at Theater Road bearing survey No. 13, Cantonment, Jabalpur, was allotted way back on 28-3-1930 to the erstwhile lessee Shri C.F. Billby. The terms and conditions mentioned in the said lease is available on record as Annexure P-1. Later on the said property was purchased by registered sale deed by Shri J.N. Seth and the petitioners herein Shri S.L. Seth, Shri K.K. Seth and Shri V.K. Seth (since deceased) and other members of family namely Shri J.M. Seth, Shri K.L. Seth and late Smt. Indira Devi Seth. Apparently such purchase was made with the sanction of the competent authority of respondents, therefore the names of these persons were duly mutated in the General Land Register (hereinafter referred to as 'GLR'). It appears that the original purchaser Smt. Indira Devi Seth had died and the property fallen in her share has been inherited by petitioner No. 5, Kamal Kumar Seth.

(2.) Some time in the year 1973, the partition took placed in the family and a registered partition deed was executed. An area admeasuring 19080 Sq. feet was allotted to Dr. J.N. Seth in the said partition and the remaining area was held by the members of the family jointly. The letter was issued accepting such partition by the Military Estates Officer on 21-5-1974 saying that subject to the terms and conditions of the original lease in Schedule VIII dated 28-3-1930, the assignment is accepted and that being so, in fact virtually sub division of leased land was accepted saying that assigned portion on the plot will continue to be governed by the original lease dated 28-3-1930. Yet another letter was issued on 14th October 1974 which refers to the aforesaid partition deed by the Military Estates Officer saying that the registered partition deed confers on each members independent and absolute right on the plot of land under the provisions of the original lease deed therefore, it be treated as sub lease of the original deed. It was reiterated that the terms and conditions of the original lease shall be applicable to this sub lease also and any contravention of the terms of the lease by any other previous co-sharer shall have no effect of default on the family members. On 4th November, 1975 specific area as demonstrated by the members of the family through another application was recorded with the consent of the Cantonment Authority and thereby in fact the partition amongst the family members was duly accepted by the Military Estates Officer. Again the same condition was reiterated with respect to the application of the same terms and conditions of the original deed dated 28-3-1930.

(3.) The family members of the petitioners then decided to have their separate residential portions in the said land and for the said purposes after making of the plan of construction they submitted applications before the respondents. As during the said period certain deaths have taken place in the family, applications were made by persons like petitioner No. 5 for mutation of his name on the share so obtained by the original family member late Smt. Indira Devi Seth. It appears that persons like petitioners were in need of NOC from the concerned authorities before making the application under the provisions of the Cantonment Act, 1924 seeking building permission, therefore such an application was made by the persons like petitioners. Such application when was submitted, the matter was referred to the Defence Estates Officer, Jabalpur, Circle, by the Cantonment Executive Officer. Certain spot inspection was done, reports were submitted and NOCs were issued by the competent authorities. However, later on the matter was proceeded and certain guidance was sought from the Director, Defence Estates, Central Command. Despite issuance of the NOC, it was said that matter was required to be re-examined with reference to the letter dated 19-4-2006 and separate lease deeds were required to be executed in respect of each lessee of sub divided portion. This exercise be initiated and then only application may be considered. With reference to the aforesaid, the impugned communication was issued on 1st May, 2007 and ultimately the claim made by the petitioners was rejected, against which they filed an appeal but the said appeal have been dismissed, therefore, the writ petition is required to be filed.