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2020 Supreme(Bom) 1254
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
UJJAL BHUYAN, ANUJA PRABHUDESSAI, JJ.
Meher Pheroze Sethna & Others – Appellant
Versus
Pune Cantonment Board & Another – Respondent
Writ Petition Nos. 765 of 2020 & 632 of 2019
Decided On : 16-10-2020
For the Petitioners:Vineet B. Naik, Senior Advocate a/w. Sukand Kulkarni, Advocate.
For the Respondents:R1 & R2, G.P. Sharma, R3, R.S. Apte, Senior Advocate i/b. Pravartak Pathak, Advocates.
Headnote:
CANTONMENTS ACT - SECTION 238(6) - DEEMED SANCTION - APPLICATION FOR REPAIR AND RENOVATION OF BUNGALOW - DELAY IN ACCORDING SANCTION - NEGLECT AND OMISSION - DEEMED SANCTION INVOCATION - OBJECTIONS RAISED BY RESPONDENTS - REJECTION OF APPLICATION - VALIDITY - RESUMPTION OF LAND BY GOVERNMENT - EFFECT - ROLE OF LOCAL MILITARY AUTHORITY - REVISED LAND POLICY - INTERPRETATION - APPLICABILITY.
Fact of the Case:
Petitioners, legal heirs of the original holder of occupancy rights in respect of a bungalow situated in a cantonment area, applied for permission to carry out repair and renovation works. The application was forwarded to the Defence Estates Officer (DEO) under section 238(3) of the Cantonments Act, 2006, as the bungalow was located outside the notified civil area. The DEO sought the views of the Local Military Authority (LMA), though not required under the Act. The LMA raised objections, including a proposal for resumption of the land by the government. The petitioners invoked the deeming provision under section 238(6) of the Act, contending that the application was pending beyond the statutory period. The respondents denied neglect or omission and asserted that the application was rejected due to the proposed resumption of the land.
Finding of the Court:
The Court held that the application for repair and renovation of the bungalow did not require relocation of the site and, therefore, seeking the views of the LMA was unwarranted. The Court clarified that the proposal for resumption of the land by the government could not be a ground for rejection of the application, as the DEO had already clarified that it was not a valid reason for denial of sanction. The Court further held that the respondents had failed to discharge their statutory duty by not taking a decision on the application within the prescribed time frame, resulting in neglect and omission. The Court directed the respondents to accord sanction to the application within four weeks from the date of receipt of the judgment.
Issues: 1. Whether the respondents were justified in rejecting the petitioners' application for repair and renovation of the bungalow? 2. Whether the proposal for resumption of the land by the government was a valid ground for rejection of the application? 3. Whether the respondents had neglected or omitted to take a decision on the application within the prescribed time frame, resulting in invocation of the deeming provision under section 238(6) of the Cantonments Act, 2006?
Ratio Decidendi: 1. The Court held that the respondents were not justified in rejecting the petitioners' application for repair and renovation of the bungalow, as the application did not require relocation of the site and seeking the views of the LMA was unwarranted. The Court further held that the proposal for resumption of the land by the government could not be a valid ground for rejection of the application, as the DEO had already clarified that it was not a valid reason for denial of sanction. 2. The Court held that the respondents had neglected or omitted to take a decision on the application within the prescribed time frame, resulting in invocation of the deeming provision under section 238(6) of the Cantonments Act, 2006. The Court noted that the respondents had failed to discharge their statutory duty by not taking a decision on the application within the prescribed time frame.
Final Decision: The Court allowed the writ petition and directed the respondents to accord sanction to the petitioners' application for repair and renovation of the bungalow within four weeks from the date of receipt of the judgment.
JUDGMENT :
Ujjal Bhuyan, J.
1. 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 though
