Holding

The CEO's extension of time was arbitrary and invalid as it was granted without applying mind to the relevant facts, thereby justifying the GOC‑in‑Chief's suspension and setting aside of that order, and the High Court's interference was unwarranted.

Summary

The Supreme Court examined a dispute where M.P.J. Builders had been granted a building sanction under the Cantonments Act, 1924, but failed to commence construction within the stipulated period and later sought extensions of time after the sanction had lapsed and after new building bye‑law restrictions were imposed. The Cantonment Executive Officer (CEO) granted a one‑year extension in May 1986 without recording any reasons or considering the fact that no work had been done and that the new restrictions made the original sanction untenable. The General Officer‑in‑Chief (GOC‑in‑Chief) suspended and later made absolute the CEO’s order under Section 52 of the Act; the Bombay High Court set aside the GOC‑in‑Chief’s orders. The Supreme Court held that the CEO’s extension was an arbitrary exercise of power because it was granted without applying mind to relevant facts, and therefore the GOC‑in‑Chief was justified in setting it aside; the High Court’s interference under Article 226 was unwarranted. The appeal was allowed, the High Court judgment set aside, and the GOC‑in‑Chief’s orders were upheld, modified only to permit retention of the existing structure, with costs awarded to the appellants.

Issues considered

The validity of the CEO's grant of extension of time under Section 183‑A without considering relevant facts or giving reasons.
Whether the GOC‑in‑Chief was empowered to suspend and set aside the CEO's order under Section 52 of the Cantonments Act.
The propriety of the High Court's interference with the GOC‑in‑Chief's order under Article 226 of the Constitution.
The interpretation of Section 183‑A regarding the need for fresh sanction versus extension, and the limitation of extensions to two periods not exceeding two years.
The effect of subsequent building bye‑law restrictions on the grant of an extension of time.

Legislation cited

Cantonments Act, 1924s. 180-A, s. 181, s. 181-A, s. 183, s. 183-A, s. 52

Subjects

Cantonments ActSection 183-Aextension of timebuilding sanctionGOC-in-Chiefadministrative discretionarbitrarinessArticle 226fresh sanctionbuilding bye‑laws

Judgment

A PUNE CANTONMENT BOARD AND ANR.
v.
M.P.J. BUILDERS AND ANR.

AUGUST 9, 1996

B [J.S. VERMA AND K. VENKATASWAMI, JJ.]

Cantonments Act, 1924 :

Sections 52 and 183-A-Co11stn1ctio11 of building-Peiiod of comple-
C tio11--E.xtension of-Granted by Board-GOC-i11-Chief suspe11ded Board's
decisio11 absolutely-High Court allowed petitio11 filed by builder-Held:
Board should grant extension after application of mind having regard to
relevant facts-Board took decision mecha11ical/y and arbitraiily-Hence,
GOC-in-Chief was justified in suspending decision taken by Board-High
Court not justified in ime1fering with order of GOC-in Chief-Constitutio11 of
D India, 1950, A11icle 226.

Section 183-A-Peiiod for completion of co11stiuction of build-
in[j-Specified by Board-No11-completion withi11 that period-Effect )
of-Held: sanction lapsed-Fresh sanction required for continuing constnic-
E tion unless extensio11 of period was granted by Board.

Section 183-A provisr:r-Effect of-Constniction of bui/din[j-Saizction
of-Period of completion of building-Extension of-Held: must be in con-
tinuity of sanctioned period-Could not be granted more than twice-PelTllis-
sible two extensions could not exceed two years because of proviso-Thus
F total extension of time could not be beyond two year:.-Application for
exte11sion made after two years liable to be rejected-Only course ope11 in such
situation was to seek fresh sanction-Even this fresh sa11ction could not be
granted if additional restrictions regarding co11stn1ction of building were im-.
posed meanwhile.

G The respondent was granted sanction for construction of a building,
under Section 181 of the Cantonments Act, 1924. The period for completion
of the building was fixed as one year. The construction of the building was
neither completed nor was any extension of time sought within that period.
Two years later the respondent made an application for extension of time.
H The report of the officer of the Cantonment Board clearly showed that the
512
PUNE CANTONMENT BD. '" M.P J. BUILDERS 513

construction of the building had not commenced till than and the only A
thing done was some excavation work. In the meantime certain changes
had been made in the building bye-laws imposing additional restrictions.
All subsequent building sanctions had to be granted thereafter subject to
these additional restrictions. In spite of these restrictions the Cantonment
Executive Officer (CEO) b'l"anted extension of time for completion of work
B
for a further period of one year without assigning any reason. the GOC-
in-Chief in exercise of his powers under Section 52(l)(b) of the Act
suspended the CEO's order and issued a show cause notice to the Canton-
ment Board as well as to the respondent to show cause why the suspension
order be not made absolute. After hearing the parties, the GOC-in-Chief,
by order under Section 52(2)(c) of the Act made the suspension order C
absolute. The GOC-in-Chiel' took the view that permitting the construction
of a building which had not till then begun would flagrantly violate the
building restrictions which had come into force by then.

A writ petition filed by the respondent was allowed by the High Court D
setting aside the order of the GOC-in-Chief. Aggrieved by the High Court's
judgment the appellants preferred the present appeal.

Allowing the appeal, this Court

HELD : 1. The exercise of the statutory power of grant of extension E
of time under Section 183-A of the Cantonments Act, 1924 is not mechani-
cal or automatic and requires a decision to be taken on application of mind
with reference to the relevant facts and circumstances of the case. The
Cantonment Executive Officer (CEO) should have considered all the
relevant facts and circumstances of the present case before he came to the F
conclusion that extension of that period was called for particularly, when
no construction of the building hat! been commenced till then and addi-
tional restrictions had been imposed meanwhile according to which such
a building sanction could not be granted if the matter were to be CtJn-
sidered for grant of a fresh sanction contemplated under Section 183-A.
Even if the additional restrictions were to apply prospectively to the grant G
of a fresh sanction thereafter, this was a relevant circumstance to be
considered while deciding to grant extension of that period even in this
case. The total non-consideration of any relevant fact by the CEO while
granting extension of time and the absence of any reason for grant of the
sanction is alone suflicient to vitiate the CEO's order. This conclusion is H
514 SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R.

A reached even if it is assumed that extension of time could be granted on
an application made after expiry of the period allowed for completion of
the construction and the embargo in the proviso to Section 183-A is
overlooked. (527-F-H; 528-A]

Usman Ganj J. Khatri & Ors. Etc. v. Cantonmem Board and Ors.,
B [1992] 3 sec 455, referred to.

2.1. The validity of the GOC-in-Chiers order setting aside the order
of the CEO granting extension of time has to be decided on the above
conclusion. Neither any facts and cogent grounds for extension of time were
C mentioned in the application for extension of time nor was any reason given
by the CEO while granting extension of time. This is sufficient to indicate
that the grant of extension of time by the CEO was an arbitrary exercise of
power under Section 183-A, even if the power was available. The GOC-in-
Chief was, therefore, right in setting aside that order in exercise of his
power under Section 52 of the Act. The reason for passing the order by the
D GOC-in-Chief cannot be said to be arbitrary since it relates to a relevant
fact for the grant of extension of time. (528-C-F]

2.2. The High Court was not justified in interfering with the orders
made by the GOC-in-Chief in exercise of bis power under Section 52 of the
Act. Exercise of the power under Article 226 of the Constitution by the High
E Court in favour of the respondents in such a case was, therefore, clearly
unwarranted. The High Court's order has, therefore, to be set aside.
[528-G-H]
. 3.1. Under Section 183-A of the Act unless the Board has allowed an
extension of the period specified for completion of. the building on an
F application made therefor, the sanction lapses and the construction of the
building shall not be continued thereafter without a fresh sanction. Section
183-A speaks of a fresh sanction on expiry of the period fixed for completion
of the building as well as extension of that period on an application made
therefor. Meaning must, therefore, be given to both the provisions, namely,
fresh sanction and extension of that period; and the two powers must be
G construed to be available in two different situations. This is necessary to
exclude any conflict and arbitrariness in exercise of the choice between the
two powers in similar case. The two powers are meant to be exercised in two
different situations and the provision does not leave it to the option of the
authority to decide which of the two powers is to be exercised in ihe case.
H This means that unless time is extended on an application made before its
PUNE CANTONMENT BD. v. M.P J. BUILDERS [J.S. VERMA, J.] 515

expiry, the sanction lapses and the erection of the building cannot be A
continued thereafter without a fresh sanction. [526·D·F]

3.2. Effect of the proviso to Section 183-A must also be kept in mind,
Extension of time allowed has to be in continuity and it cannot exceed the
period fixed initially for completion of the building. The limit is of two
extensions. In the present case, the period fixed was one year and, there- B
fore, the permissible two extensions could not exceed two years, because of
the proviso. Thus, the total extension of time could not be beyond two
years. Application for extension of time made after two years had to be
rejected. The only power available on that date was issue of a fresh
sanction. Even this fresh sanction could not be granted in view of the c
additional restrictions imposed meanwhile. (526-G-H; 527-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9390 of
1996.

From the Judgment and Order dated 22.12.94 of the Bombay High D
Court in W.P. No. 1710 of 1987.

D.P. Gupta, Dhruv Aggarwal, N.P. Bhog and I. Ahmad for the
Appellants.

F.S. Nariman, S. Ganesh and P.H. Parekh for the Respondents.
E

l.G. Shah, M.D. Adkar, S.D. Singh, P.H. Parekh and Ms. Indu
Malhotra for the Respondent No. 1.

The Judgment of the Court was delivered by F
J.S. VERMA, J. The dispute relates to the building sanction of House
No. 2, Sholapur Bazar Road, Pune, which falls within the area of Pune
Cantonment governed by the Cantonments Act, 1924 (hereinafter referred
to as 'the Act').
G
The respondent no. 1 was granted a building sanction under Section
181 of the Act on 2 7.1981 effective from 6.7.1981. The building was
intended to be used for commercial/residential purposes; it was to be an
RCC framed structure and to consist of ground and five upper stories (i.e.
stilt + six upper stories); the nature of soil was 'hard rock'; the construe- H
516 SUPREME COURT REPORTS (1996] SUPP. 4S.C.R.

A tion work was to be commenced within one year of the sanction i.e. before
6.7.1982; and was to be completed within 12 months from the date of
commencement of the work. The building bye-Jaws existing at the time of
the sanction did not contain any restrictions with regard to the Floor Area
Ratio (FAR) or number of floors or height of the building. By a letter
B dated 3.7.1982, barely three days before expiry of the permissible period
for commencement of the work, a letter was sent by the respondent No. 1
stating that the work had been commenced on that day. For the purposes
of this case, the appellants did not dispute this claim of the respondent no.
1. According to the conditions of the building sanction imposed under the
relevant statutory provisions, the construction of the building had to be
c completed within 12 calendar months from the date of commencement of
the work i.e. upto 3.7.1983. Admittedly, the construction of the building
was neither completed nor was any extension of time sought within that
period. The respondent No. 1 claims to have made an application for
extension of time to complete the construction on 24.9.1983, after expiry of
D the time allowed. For the purposes of this case the appellants do not
dispute even this claim. The contents of that application alleged to have
been made by the respondent no. 1, are as under :

"MRJ: 9/86n36 24.9.1983
E
The Executive Officer,
Cantonment Board,
Pune.

Sub : Extension of time.
F
Ref: Your sanction No. 2/SH/B3 dated 6.7.81, for our project. at
No. 2, Sholapur Bazar Road.

Sir,

G We have commenced the above work with effect from 3.7.82 and
your office was intimated accordingly vide our letter No. MPJ:
MK/7/82, dated 3.7.1982.

It was not possible to complete the works within a span of one
H year due to the various following reasons:
PUNECANTONMENTBD. v. M.PJ. BUILDERS [J.S.VERMA,J.] 517

1. Hard rock is met with for basement foundation which requires A
chiselling.

2. Non-availability of building materials.

3. Due to change in the strata now met with, structural detailing
requires some changes. B

4. Due to various other difficulties.

We, therefore, request you to kindly grant us an extension of time
for a further period of 24 months and oblige.
c
Your faithfully,
for MPJ Builders.

Sd/-
(Ramesh Kumar More) D
Partner."

On 24.5.1984, an engineer of the Cantonment Board inspected the site and
submitted a report that no erection work of the building had been com-
menced till then; the owner had not made any application for extension of
time; and the sanction had lapsed. The making of this report is undisputed. E
Thereafter, on 9.9.1985, an application, said to be the second application
for extension of time was made by the respondent no. 1. That application
is as under :

"BY REGISTERED A.D.
F
HPJ\RRH\9\85\106 September 9th 1985

Executive Officer,
Pune Cantonn1cnt Board,
PUNE 411001 .G
Ref. : (a) Your sanction No. 2/SH/B-3 of 6/7/1981 for our project
at No. 2 Sholapur Bazar Road.

(b) Our letter No. HPJ/MKl?/821343 of 3.7.1982 regarding intima-
tion of commencement. H
518 SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A (c) Our letter No. MPJ/9/83/736 of 24/9/1983.

Sir,

Due to various unforeseen reasons and difficulties, we could make
substantial progress with the work at our site at 2 Sholapur Bazar
B Road.

We request you to grant us fourth extension of 18 months and
oblige.

We assure you that we will try our best to complete the building
c within this extended period.

Thanking you.
For MPJ Builders,

(Ramesh Kumar More)
D Partner11

On that application, a report dated 3.10.1985 was submitted by an officer
of the Cantonment Board. Relevant Part of that report is as under :

"The party has not started the construction from the date of
E sanction and not taken any extension of time limit for completion
of work from this office.

On site inspection, it is found that the owner of this property
had started excavation work. Which work is in progress.

F Submitted to your order's pl.

sd/-
3.10.85"

The Cantonment Executive Officer, exercISmg the power of the
G Board, granted extension of time for a period of one year from the date of
that order dated 2.5.1986 as under :

"02May1986

From
H The Cantonment Executive Officer,
PUNE CANTONMENT BD. v. M.P J. BUILDERS [J.S. VERMA,J.] 519

Poona Cantonment Board, A
Poona.

To
Shri Ramesh Kumar More,
Partner,
Clo MPJ Builders, B
Poona Bottling Co. Ltd.,
4101/1, Bombay Poona Road, Dapodi,
PUNE 411 012.

Subject : Grant of Extension of time for completion of work - C
H.No. 2, Sholapur Bazar, Pune Cantt.

Reference : Your application dt.09.9.1985

Dear Sir,

Extension of time for completion of work for a period of one year D
is hereby granted.

Yours faithfully,
sd/-
CANTT. EXECUTIVE OFFICER."
E
Prior to the grant of extension of time by the Cantonment Executive
Officer on 2.5.1986 or even tl:e application for extension of time dated
9.9.1985, certain changes had been made in the building bye-laws imposing
additional restrictions. All subsequent building sanctions had ro be granted
thereafter subject to these additional restrictions also. The first set of F
restrictions were imposed on 24.12.1982 under which the maximum number
of stories which could be constructed were reduced to the ground floor +
two upper stories i.e. in all three stories including the ground floor. The
maximum permissible FAR commonly known as FSI was two and the
maximum permissible built up area became 1/3rd. These res\rictions were G
imposed under Section 181(2) of the Act which later became Section
181-A, in the public· interest to regulate the building activities in the
cantonment area. More restrictions were imposed on 26.3.1984 under
which the permissible FSI was reduced from two to one. It is to be
remembered that the report dated 24.5.1984 of the Cantonment Engineer
clearly mentioned the admitted fact that no erection work had been com- H
520 SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A menced by the respondents till then. The question of extension of time to
make the construction according to the initially sanctioned plan had to be
decided in this background taking into account the fact that no erection of
the building had commenced till both sets of further restrictions had been
imposed; and according to the additional restrictions, the kind of building
construction sanctioned on 2.7.1981 could not be permitted, if the question
B of sanction was to be considered afresh.

The GOC-in-Chicf in exercise of his powers under Section 52(1)(b)
of the Act suspended the CEO's order dated 2.5.1986 by an order dated
2.1.1987 and issued a show cause notice to the cantonment Board as well
C as the respondent no. 1 lo show cause why the suspension order be not
made absolute. After hearing the parties, the GOC-in-Chief, by order
dated 14.2.1987 under Section 52(2)(c) made the suspension order ab-
solute. It appears that a portion of the building had been constructed by
then and therefore, on 14.3.1987 the GOC-in-Chief made the consequential
order for its demolition.
D
A writ petition was then filed on 27.3.1987 in the Bombay High Court
by the respondents which has been allowed and the orders made by the
GOC-in-Chief dated 14.2.1987 and 14.3.1987 have been set aside. The High
Court granted some further time lo complete construction of building
E according to the initially sanctioned plan. Aggrieved by the High Court's
order, the Pu~e Cantonment Board and the GOC-in-Chief have preferred
this appeal by special leave.

It was common ground before us that the stage of construction till
F now is : the basement, a ground floor and the first floor have been
constructed; the ground floor is of an extra height so as to accommodate
a mezzanine although the mezzanine floor has not yet been cast; the
mezzanine floor sanctioned does not extend to the entire ground floor area
but only to a small portion thereof and the rest of the ground floor has
been left with the extra height. The construction made so far is already in
G excess of the permitted FSI of one, being approximately 1.59. The learned
Solicitor General, appearing for the appellants, on instructions, stated that
the appellants are prepared to permit the respondent no.1 to retain the
existing structure and complete the finishing of the existing structure with
the mezzanine according to the initially sanctioned plan subject to the
H condition that no additional slab would be laid anywhere else. This offer
, •
PUNE CANTONMENT BD. v. M.P j_ BUILDERS [J.S. VERMA, J.]

made on behalf of the appellants at the hearing before us is mentioned
521

since to this extent the appellants consent to grant of relief to the respon-
A

dents even if the appeal is allowed.

Mention may also be made of another relevant fact. The High Court
in the impugned judgment invoked the doctrine of estoppel on the ground
that the builders had acted upon the order of extension and had completed B
a portion of the building. Shri F.S. Nariman, learned senior counsel for the
respondent,, frankly conceded that he could not support the High Court's
order on that ground. We need not, therefore, consider the applicability of
the doctrine of estoppel which is a clearly untenable plea in the present
case. c
At this stage, before we proceed to consider the rival contentions,
we may notice the relevant statutory provisions:

"THE CANTONMENTS ACT, 1924
D
52. Power of Officer Commanding-in-Chief, the command, on
reference under Sec.51 or othenvise - (I) The Officer Commanding-
in-Chief, the Command, may at any time -

(a) xxxxx xxxxx xxxxx xxxxx
E
(b) direct the suspension, for such period as may be stated in the
order of action on any decision of a Board, other than a decision
which has been referred to him under sub-section (1) of Sec. 51,
and thereafter cancel the suspension or after giving the Board a
reasonable opportunity of showing cause why such direction should
not be made, direct that the decision shall not be carried into F
effect, or that it shall be carried into effect with such modifications
as he may specify.

xxxxx xxxxx xxxxx xxxxx

180-A. Powers of Board under ce11ain sections exercisable by Execu- G
tive Officer. - The powers, duties and functions of the Board under
Sec. 181, sub-section (1) of Sec. 182, Sec, 183, Sec 183-A and Sec.
185 (excluding the proviso to sub-section (1) and the proviso to
sub-section (2) of the said Sec. 185 shall be exercised or discharged
in a civil area by the Executive Officer). H
522 SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R.

A 181. Power of Board to sa11ctio11 or refuse - (1) The Board may
either refuse to sanction the erection or re-erection, as the case
may be, of the building, or may sanction it either absolutely or
subject to such directions as it thinks fit to make in writing in
respect of all or any of the following matters, namely:

B xxxxx xxxxx xxxxx

and the person erecting or re-erecting the building shall obey all
such written directions in every particular.

(2) The Board may refuse to sanction the erection of re-erection
c of any building on any grounds sufficient in the opinion of the
Board affecting the particular building:

Provided that the Board shall refuse to accord sanction the erec-
tion or re-erection of any building if such erection or re-erection
D is not in conformity with any general scheme sanctioned under Sec.
181-A.

xxxxx xxxxx

(5) If the Board decides to refuse to sanction the erection or
E · re-erection of the building, it shall communicate in writing the
reasons for such refusal to the person by whom notice was given.

xxxxx xxxxx xxxxx

181-A. Power to sa11ctio11 ge11eral scheme for preve11tion of over-
F crowdi11g etc. - The officer Commending-in-Chief, the Command
may sanction a general scheme for erection or re-erection of
buildings within such limits as may be specified in the sanction for
the prevention of over-crowding or for purpose of sanitation, or
in the interest of persons residing within those limits or for any
other purpose, and may, in pursuance of such scheme, impose
G
restrictions on the erection or re-erection of buildings .within those
limits:

Provided that no such scheme shall be sanctioned by' the officer
commanding-in-chief, the command, unless an opportunity has
H been given by a public notice to be published locally by the
PUNE CANTONMENT BD. v. M.P J. BUILDERS [J.S. VERMA, J.] 523

Executive Officer requiring persons affected or likely to be af· A
fected by the proposed scheme, to file their objections or sugges·
tions in the manner specified in the notice, within a period of
fifteen days oft~ publication of such notice and after considering
such objections and suggestions, if any, received by the Executive
Officer within the said period.
B
xxxxx xxxxx xxxxx

183. Lapse of sa11ctio11 · Every sanction for the erection or re-erec·
tion of a building given or deemed to have been given by the Board
as herein-before provided shall be available for one year from the
date on which it is given, and, if the building so sanctioned is µot
c
begun by the person who has obtained the sanction or some dne
lawfully claiming under him within that period, it shall not there·
after be begun unless the Board on application made therefore has
allowed an extension of that period.
D
183-A. Pedod fbr completio11 of b11ildi11g · A Board, when sanction·
ing the erection or re-erection of a building as herein-before
provided shall specify a reasonable period after the work has
commenced within which the erection or re-erection is to be
completed, and, if the erection or re-erection is not completed E
within the. period so fixed, it shall not be continued thereafter
without fresh sanction obtained in the manner herein-before
• provided, unless the Board on application made therefor has
allowed an extension of that period :

Provided that not more than two such extensions shall be allowed F
by the Board in any case."

The learned Solicitor General appearing on behalf of the appellants ad·
vanced several arguments. He submitted that no reasons were given by the
Cantonment Executive Officer for extension of time, on these facts, to
justify grant of the extension. The relevant facts for this purpose were that G
the sanction had expired on 3.7.1983 even prior to the making of the alleged
first application for extension of time date 24.9.1983, assuming that the
application was made; no construction of the building had been com·
menced within the time allowed or even till 3.10.1985 as evident from the ··
inspection note of that date; and much before that date additional rcstric· H
SUPREME COURT REPORTS [1996} SUPP. 4 S.C.R.

A tions had been imposed on 26.12.1982 and 26.3.1984 by amendments made
in the building bye-laws which did not permit such a construction. It was
contended that these changed circumstances were of great significance but
they were not considered by the CEO and no .reason was given for the
extension of time granted by the CEO on 2.5.1986. The learned Solicitor
General also submitted that the only ground mentioned in the application
B dated 9.9.1985 made by the respondent no. 1 did not justify grant of
extension of time to make any construction in breach of the restrictions
imposed meanwhile in 1982 and 1984 when no construction of the building
had been commenced even till 3.10.1985 and the sanction had already
lapsed on 3.7.1983. It was urged that the exercise of power by the GOC-
C in-Chief under Section 52 to set aside the order made by the CEO was
valid for the reasons given by him. We have already mentioned the offer
made by the appellants to permit retention of the existing structure even if
the appeal succeeds.

In reply, Shri F.S. Nariman, learned senior counsel for the respon-
D dents, submitted that the reasons given in the order of the ·GOC-in-Chief
setting aside the order of the CEO are inapplicable because the additional
building restrictions imposed in 1982 and 1984 did not apply to a building
sanction granted prior to the imposition of those additional restrictions.
Shri Nariman heavily relied on a foot-note dated 4.4.1984 clarifying this
E position at the end of the relevant public notice quoted in the deci;ion in
Usman Gani J. Khatri and Ors. Etc. v. Cantonmelll Board and Ors., [1992}
3 sec 455 at 464 as under :
•
"Note - It is clarified for information of the general public that the
above orders will be effective from the date the GOC-in-Chief,
F HQSC, has signed the above order i.e. March 26, 1984. These
restrictions will apply only to the buildings whose plans will be
considered/passed on or after March 26, 1984. Building plans
passed prior to March 26, 1984 will be governed by the FSI existing
during that period.
G
Dated April 4, 1984.

sd/- S.P. Nijhawan
Cantonment Executive Officer, Pune"

H It is not necessary to quote in extenso the public notices imposing the
PUNECANTONMENTBD. v; M.PJ.BUILDERS[J.S.VERMA,J.) 525

additional restrictions on 24.12.1982 and 26.3.1984, which have been sum- A
marised earlier and are not disputed. The other submission of Shri
Nariman was that even though the delay in making the application for
extension of time after expiry of the period of sanction and imposition of
additional restrictions are relevant circumstances to be considered for
granting extension of time yet its non-consideration is not a jurisdictional
B
defect to denude the CEO of the power to grant extension of time. Shri
Nariman submitted that the initial building sanction granted to the respon-
dent no. 1 being prior to the imposition of the additional restrictions which
were prospective in operation, the further extension of time to complete
the earlier sanctioned building would be governed only by the building
bye-laws existing at the time of grant of the initial sanction. Shri Nariman, c
therefore, argued for dismissal of the appeal for these reasons.

Section 180-A empowers the Executive Officer to exercise certain
powers, duties and functions of the Board which include the Boards power
to sanction or to refuse to sanction the erection or re-erection of the
building under Section 181, and to allow the extension of the period for
D
completion of the building. Extension of time granted by the CEO in the
present case was in exercise of this power. The only question in the present
case pertains to the validity of the extension of that period by the order
dated 2.6.1985 made by the CEO in exercise of the power nnder Section
183-A. E

Section 183 prescribes the period of one year from the date on which
a building sanction has been given to begin the building so sanctioned,
failing which the sanction lapses unless the Board, on an application made
therefor has allowed an extension of that period. In the present case, the
F
compliance of this provision is not disputed since the claim of respondent
no. 1. by a letter dated 3.7.1982 is not contested. The significant provision
is Section 183-A.

Section 183-A requires the period for completion of the building to
be specified when the sanction is granted. It is to be a reasonable period G
after the work has commenced. In the present case the period so specified
was one year. The f=tion of the period of one year as the reasonable
period for completion of the building after commencement of the work was
not challenged. Thus, the work having commenced on 3.7.1982 as claimed
by the respondent No.1, the period for its completion according to Section H
526 SUPREME COURT REPORTS [1996) SUPP.4 S.C.R.

A 183-A, expired on 3.7.1983. Section 183-A further provides that if the
erection of the building is not completed within the period so fixed, it shall
not be continued thereafter without fresh sanction obtained in the manner
herein-before provided i.e. Section 181, unless the Board on an application .
made therefor has allowed an extension of that period. The proviso then
B limits the power of the Board to allow not more than two such extensions.

In short, Section 183-A provides for the specification of the period
for completion of the building when the sanction is granted; and on expiry
of that period construction of the building cannot be continued without a
fresh sanction, unless an extension of that period has been allowed on an
C application made therefor. It means that unless the Board has allowed an
extension of the period specified for completion of the building on an
application made therefor, the sanction lapses and the construction of the
building shall not be continued thereafter without a fresh sanction. Section
183-A speaks of a fresh sanction on expiry of the period fixed for comple-
D tion of the building as well as extension of that period on an application
made therefor. Meaning must, therefore, be given to both the provisions,
namely, fresh sanction and extension of that period; and the two powers
must be construed to be available in two different situations. This is
necessary to exclude any conflict and arbitrariness in exercise of the choice
E between the two powers in similar cases. It appears that the two powers
are meant to be exercised in two different situations and the provision does
not leave it to the option of the authority to decide which of the two powers
is to be exercised in the case. This means that unless time is extended on
an application made before its expiry, the sanction lapses and the erection
of. the building cannot be continued thereafter without a fresh sanction.
F
Effect of the proviso in Section 183-A must also be kept in mind.
Extension of time allowed has to be in continuity and it cannot exceed the
period fixed initially for completion of the building. The limit is of two
extensions. In the present case, the period fixed was one year and, there-
G fore, the permissible two extensions could not exceed two years because of
the proviso. Thus, the total extension of time could not be beyond two years
from 3.7.1983 (upto which date time was allowed for completion). In other
words, time extended under Sec. 183-A because of the proviso, in the
present case could not be beyond 3.7.1985 since the extension had to be in
H continuity. Jn the present case that application made much later on 9.9.1985
PUNE CANTONMENT BD. v. M.P J. BUILDERS iJ.S. VERMA, J.] 527

had to be rejected by the CEO for this reason alone and the only power A
available on that date was of a iresh sanction. This obviously could not be
granted in view of the additional restrictions imposed meanwhile. Thus,
extension of time by the order dated 2.5.1986 was clearly without jurisdic-
tion for this reason alone.
B
Even assuming, the power to allow extension of time was available,
the facts indicate that it could not be granted. As earlier stated, the period
fixed for completion of the building under Section 183-A was one year
which expired on 3.7.1983. Admittedly, no application for extension of time
was made by the respondent no.l before the expiry of that period and such
an application is alleged to have been made only on 24.9.1983. No extension C
was granted on that application since the Board does not admit receiving
the same. There was total silence till almost two years thereafter and then
on 9.9.1985 the application for extension of time was made by respondent
no. 1 The period fixed for completion of the building when the sanction
was granted had expired more than two years earlier. The report of the D
officer of the Cantonment Board dated 3.10.1985 clearly showed that the
construction of the building had not commenced till then and the only thing
done was some excavation work. In spite of this report, the CEO· granted
extension of time for completion of work for a further period of one year
without assigning any reason in his order dated 2.5.1986 made with refer-
ence only to the application dated 9.9.1985. E

It is obvious that the exercise of the statutory power of grant of
extension of time under Section 183-A is not mechanical or automatic and
requires a decision to be taken on application of mind with reference to
the relevant facts and circumstances of the case. The CEO should have F
considered all the relevant facts and circumstances of the present case
before he came to the conclusion that extension of that period was called
for particularly, when no construction of the building had been commenced
till then and additional restrictions had been imposed meanwhile according
to which such a building sanction could not be granted if the matter were
to be considered for grant of a fresh sanction contemplated under Section G
183-A. Shri Nariman rightly does not dispute that even if the additional
restrictions were to apply prospectively to the grant of a fresh sanction
thereafter, this was a relevant circumstance to be considered while deciding
to grant extension of that period even in this case. The total non-considera·
tion of any relevant fact by the CEO while granting extension of time by H
528 SUPREME COURT REPORTS [19961SUPP.4 S.C.R.

A order dated 2.5.1986 and the absence of any reason for grant of the
sanction is alone sufficient to vitiate the CEO's order dated 2.5.1986. This
conclusion is reached even if it is assumed that extension of time could be
granted on an application made after expiry of the period allowed for
completion of the construction and the embargo in the proviso is over-
looked.
B
The validity of the GOC-in-Chiefs order setti11g aside order of the
CEO granting extension of time has to be decided on the above conclusion
reached by us. The GOC-in-Chiefs order refers, inter alia, to the addition-
al restrictions imposed in the meantime as relevant factors for considera-
C tion. It is rightly not disputed that this was a relevant factor to consider
while deciding the question of extending the period. In substance, the
GOC-in-Chicf took the view that permitting the construction of such a
building which had not till then begun would flagrantly violate the building
restrictions which had come into force by then. This reason cannot be said
D to be arbitrary since it relates to a relevant fact for the grant of extension
of time. A perusal of the application dated 9.9.1985 made by the respon-
dent no. 1 indicates that no fact had been stated therein to make out any
ground for grant of extension of time and to explain the inability to even
commence erection of the building within the time allowed. Even a refer-
ence to the earlier application dated 24.9.1983, assuming it was filed, shows
E that nothing significant was mentioned therein except some vague, general
difficulties of which the respondent no. 1 must have been aware even while
seeking the initial sanction. Thus, neither any facts or cogent grounds for
extension of time were mentioned in the application for extension of time
nor was any reason given by the CEO while granting extension of Lime by
F order dated 2.5. 1986. This is sufficient to indicate that the grant of
extension of time by the CEO was an arbitrary exercise of power under
Section 183-A, even if the power was available. The GOC-in-Chief was,
therefore, right in setting aside that order in exercise of his power under
Section 52 of the Act.

G In the above view, the High Court was not justified in interfering with
the orders made by the GOC-in-Chief in exercise of his power under
Section 52 of the Act. Exercise of the power under Article 226 of the
Constitution by the High Court in favour of the respondents in such a case
was, therefore, clearly unwarranted. The High Court's order has, therefore,
H to be set aside.
PUNE CANTONMENT BD. v. M.P J. BUILDERS [J.S. VERMA, J.j 529

Consequently, the appeal is allowed; the impugned judgment of the A
High Court is set aside. However, in view of the offer made on behalf of
the appellants to permit retention of the existing structure in the manner
indicated above and to permit finishing of the existing structure in the
manner stated, we permit retention of the same. The orders of the GOC-
in-Chief would, therefore, stand modified to this extent only. The respon-
I
dents to pay Rs. 5,000 as costs to the appellants.

v.s.s. Appeal allowed.