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2020 Supreme(Bom) 861
IN THE HIGH COURT OF BOMBAY
Ujjal Bhuyan, Anuja Prabhudessai, JJ.
Meher Pheroze Sethna And Others - Appellant
Versus
Pune Cantonment Board And Another - Respondent
Writ Petition No. 765 of 2020, 632 of 2019
Decided On : 16-10-2020
Vineet B Naik, Advocate, Sukand Kulkarni, Advocate, G.P. Sharma, Advocate, R.S. Apte, Advocate, Pravartak Pathak, Advocate
The Cantonment Board was required to take a decision on the application for sanction to carry out repair and renovation of the bungalow within a period of 4 weeks from the date of receipt of a copy of the judgment and order. The Cantonment Board could not refuse to sanction the application on the ground that the land was proposed for resumption by the central government.
Headnote:
The Court held that the Cantonment Board was required to take a decision on the application for sanction to carry out repair and renovation of the bungalow within a period of 4 weeks from the date of receipt of a copy of the judgment and order. The Court also held that the Cantonment Board could not refuse to sanction the application on the ground that the land was proposed for resumption by the central government.
Fact of the Case:
The petitioners were the legal heirs of the original holder of occupancy rights in respect of a bungalow situated in a cantonment area. The bungalow was in a dilapidated condition and the petitioners had applied to the Cantonment Board for permission to carry out repair and renovation work. The Cantonment Board had not taken any decision on the application for more than two years. The petitioners filed a writ petition seeking a declaration that the application had been deemed to have been sanctioned in terms of section 238(6) of the Cantonments Act, 2006.
Finding of the Court:
The Court held that the Cantonment Board had failed to discharge its statutory duty by not taking a decision on the application for sanction within the time frame prescribed by law. The Court also held that the Cantonment Board could not refuse to sanction the application on the ground that the land was proposed for resumption by the central government.
Issues: Whether the Cantonment Board was required to take a decision on the application for sanction to carry out repair and renovation of the bungalow within a period of 4 weeks from the date of receipt of a copy of the judgment and order.
Ratio Decidendi: The Court held that the Cantonment Board was required to take a decision on the application for sanction to carry out repair and renovation of the bungalow within a period of 4 weeks from the date of receipt of a copy of the judgment and order. The Court also held that the Cantonment Board could not refuse to sanction the application on the ground that the land was proposed for resumption by the central government.
Final Decision: The Court allowed the writ petition and directed the Cantonment Board to accord sanction to the application of the petitioners dated 04.09.2017 within a period of 4 (four) weeks from the date of receipt of a copy of the present judgment and order.
JUDGMENT
Ujjal Bhuyan, J. - Facts and issues being identical and inter-related, both the writ petitions were heard together and are being disposed off by the present common judgment.
2. Writ Petition No.765 of 2020 was filed at an earlier point of time i.e., on 06.04.2018 but registered only in the year 2020. On the other hand, Writ Petition No.632 of 2019 was filed subsequently on 09.01.2019 but because of earlier registration it appears that it was filed earlier. However, learned counsel for the parties had made submissions centering on Writ Petition No.765 of 2020. Accordingly, Writ Petition No.765 of 2020 is taken as the lead case and all facts and references made in the judgment pertain to Writ Petition No.765 of 2020.
3. Heard Mr. Vineet B. Naik, learned senior counsel along with Mr. Sukand Kulkarni, learned counsel for the petitioners; Mr. G. P. Sharma, learned counsel for respondent Nos.1 and 2; and Mr. R. S. Apte, learned senior counsel instructed by Mr. Pravartak Pathak, learned counsel for respondent No.3.
4. The three petitioners are legal heirs of late Smt. Homai Nussarwanji Pudumjee, who was the holder of occupancy rights in respect of bungalow No.6, Maneckji Mehta Road, Pune (briefly 'the said bungalow'). The said bungalow is an old grant bungalow constructed in the year 1931. It is stated that the bungalow is located outside the notified civil area under the Cantonment Board, Pune. Thus, the area where the said bungalow is situated is under the administrative control of the Defence Estates Officer, Pune Cantonment Board.
5. The bungalow was in a dilapidated condition due to lack of maintenance and not safe to occupy. Power of attorney holder of the original holder of occupancy rights had commenced the work for carrying out necessary repairs of the said bungalow sometime in October, 2011. It is stated that in terms of the revised land policy dated 09.02.1995 prior permission of the respondents was not required for carrying out repair works. However, sometime in December, 2011, respondent No.2 i.e., Chief Executive Officer of Pune Cantonment Board issued a stop work notice. It was alleged that in the guise of repair the said bungalow was sought to be demolished and reconstructed. Ultimately, this led to issuance of notice on 27th March / 12th April, 2012 under section 248(1) of the Cantonments Act, 2006 alleging that erection / re-erection of building constituted an offence under section 247.
6. It is stated that a statutory appeal under section 340 of the Cantonments Act, 2006 was preferred against the aforesaid notice. During the pendency of the appeal, a request was made to respondent No.2 for composition and regularization. Respondents insisted on withdrawal of the appeal. In such circumstances, petitioners approached this Court by filing writ petition being Writ Petition No.6355 of 2013. By order dated 30.09.2013, this Court directed respondent Nos.1 and 2 to consider the request of the petitioners in respect of composition and regularization, at the same time recorded the undertaking of the petitioners to withdraw the appeal in case the composition and regularization proposal was accepted by the respondents.
7. Very belatedly on 14.09.2014, respondents in compliance to the order of this Court approved the composition and regularization subject to payment of certain fees which were paid by the petitioners. In conformity with the undertaking given before this Court, petitioners withdrew the statutory appeal.
8. After the composition and regularization, petitioners through the power of attorney holder applied before respondent No.2 on 03.11.2014 seeking permission for carrying out repair works in the bungalow. The application was later on corrected by another application dated 27.02.2015 mentioning the repair works to be carried out.
9. It may be mentioned that the application was forwarded to the Defence Estates Officer under section 238(3) on 20.03.2015 and later on forwarded to the Local Military Authority t
