Holding

The condition of converting the land to freehold and paying the conversion charges is a condition precedent to plan sanction, and the newer building restriction schemes and 1988 Bye‑Laws are valid and govern any fresh plans, leaving the petitioners without any enforceable right to their pre‑1982 plans.

Summary

The petitioners, builders in Pune Cantonment, sought to have building plans submitted before the 1982 scheme of building restrictions sanctioned, arguing that the condition of converting their land to freehold and paying conversion charges was not a prerequisite. The Cantonment Board required conversion and full payment before sanction, and later introduced stricter building restrictions in 1982, 1984 and the 1988 Bye‑Laws, which superseded earlier regulations. The High Court held that the conversion condition was a condition precedent and that the newer schemes were legislative and applicable. The Supreme Court affirmed this view, holding that no legal right to the plans arose until the conversion was completed and the plans were sanctioned under the prevailing regulations, and that the 1988 Bye‑Laws now govern any fresh applications. Consequently, the petitioners' special leave petitions were dismissed.

Issues considered

The conversion of old‑grant land to freehold and payment of conversion charges is a condition precedent to the sanction of building plans.
Whether the building restriction schemes of 24‑Dec‑1982, 26‑Mar‑1984 and the 1988 Bye‑Laws apply to plans submitted before their commencement.
Whether the petitioners acquired any legal right in their building plans prior to final sanction.
Whether the High Court’s decision and the earlier Supreme Court order in Shoriar Baharam Irani case are binding precedents for the present petitions.

Legislation cited

Cantonments Act, 1924s. 179, s. 181, s. 181(4)(b), s. 183, s. 186, s. 274, s. 283, s. A

Subjects

building bye‑lawsconversion to freeholdcondition precedentCantonments Actfloor space indexpublic interestspecial leave petitionurban planningovercrowding

Judgment

USMAN GANI J. KHATRI OF BOMBAY ETC. ETC. A

CANTONMENT BOARD AND ORS. ETC. ETC.

MAY l, 1992

[N.M. KASLIWAL AND K. RAMASWAMY, JJ.) B

Pune Cantonment "(Building) Bye-Laws, 1988:

Scheme of building restrictions and bye-laws-Superseding the earlier
bye-laws-Brought into force in larger public interest-Applicability of-Con- C

- dition that building plans could be sanctioned on conversion of land into
freehold site-Non-payment of conversion charges in full--Effect of-Refusal
to sanction plan--¥a/idity of-Sanction-To be made in accordance with
building regulations prevailing at the ,time of sanction-Whether any legal.right
accrues be/ore the plan gets final sanction.
D
Bye-laws for regulating the erection and re-erection of buildings
within the area of the Respondent Board were made in 1947. Since these
bye-laws did not contain adequate provisions to prevent overcrowding as
a result of haphazard and high-rise constructions, the Respondent Board
issued a new scheme of restrictions by its order dated 24.12.1982 laying E
down the minimum space required to be left open and floor space index
to be adhered to in the matter of new constructions. Subsequendy, in 1984
the Board modified its earlier order and issued the second scheme or
restrictions on 26-3-1984. Thereafter, the Board framed new bye-laws
known as Pone Cantonment (Building) Bye-laws, 1988 which superseded
the 1947 Bye-laws. The new bye-laws, approved the second scheme of F
building restrictions which restricted the height of buildings to 18 metres
and the maximum number or storeys to ground plus two.·

The petitioners submitted their building plans before the First
Scheme of building restrictions was brought into force. The Respondent·
Board intimated the petitioners that their plans-could be sanctioned only G
after conversion of the old grants .into freehold tenure and subject to
payment of conversion charges by them. The Respondent took notice of the
fact that some of the petitioners started constructing buildings ignoring
the Fist Scheme of restrictions and without making full payment or
conversion charges. The petitioners were required to re·submit the plans H
1
2 SUPREME COURT REPORTS [1992)3 S.C.R.

A in accordance wtih the new scheme. The Board also made it clear that any ~
sanction made was valid only for procuring cement and not for execution
of work and so no construction should be started till final sanction for
conversion was received from Government.

Being aggrieved by the said decision of the Respondent-Board, ·the
B petitioners r.led Writ Petitions before the High Court, and the same were
dismissed. The High Court held that the condition of conversion was not
severable from the sanction to the plan and was in fact a condition
precedent and foundation of the sanction. It also held that the new scheme
of regulations was legislative in nature and was not in conftict with the
C bye-laws. The High Court further held that the Respondent-Board would
have to sanction a plan afftsh after conversion and such plan would be
governed by the building regulations prevailing at the time of the fresh
sanqion by the Board•
--
.D Against the said judgm.:41t of the High Court, the petition~rs have
preferred the present Special Leate P~titions.

The petitioners contended that the Second Scheme of restrictions
and the 1988 bye-laws Were not applicable to them and that they were
willing to abide by the First Scheme of restrictions, and that the construc-
E tion already made during the period of stay granted by the High Court or
otherwise, may be allowed to stand.

Dismissing the petitions, this Court,

F HELD: 1. The schemes of building restrictions made on 24.12.1982
and 26.3.1984 and amended bye-laws in 1988 putting restrictions and
reducing the height and Door space· index in respect of multi-storeyed
buildings, have been made in larger public interest and for the benefit of
the entire population of the city of Pone. The validity of such schemes or
bye-laws have not been challenged before this Court. The slogan of the
G builders and land owners of utilising the maximum area for construction
of high rise buildings for fulfilling the need of houses in big urban cities
should always be subservient to the building restrictions and regulations
made in the larger interest of the whole inhabitants and keeping in view
the inftux of population, environment hazards, sanitation, provision for
H supply of water, electricity and other amenities. (21 B-DJ
USMAN KHATRI v. CANTONMENT BOARD 3

· 2. This Court cannot be oblivious to the fact of thrust of population A
in all the Urban cities in our country and the problem of basic amenities
to be made available to the residents of the cities. All planning is to be
done on a long term basis taking note of the growth of industries and
overcrowding of population causing environmental and pollution
problems in the cities. Growing awareness of these problems has activated B
the Government as well as the various social activists in taking notice of
this menacing problem which is posing a danger to the very survival and
existence of human race. [17 E,F]

3. The petitioners did not acquire any legal right in respect of
building plans until the same were sanctioned in their favour after having C
paid the total amount of conversion charges in lump sum er in terms of
sanctioned instalments and getting conversion of their land in free hold
tenure. The first scheme of restrictions was brought into force long back
on 24th December, 1982 and the second on 26th March, 1984. The
petitioners did not submit any fresh building plans in accordance with the D
first or the second scheme of restrictions. Many of the petitioners have not
paid a single p!e towards the conversion charges, some of thelil have paid
only few instalments and the others though have paid tite instalments have
not made it according to the schedule. In any case the High Court was
right in taking the view that the building plans can only be sanctioned
according to the building regulations prevailing at the time of sanctioning E
of such building plans. At present the statutory bye-laws published on 30th
April, 1988 are in force and the fresh building plans to be submitted by

- the petitioners, if any, shall now be governed by these bye-laws and not by
any other bye-laws or schemes which are no longer in force now.
[17 H; 18 A-CJ F

·_1.. CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
No. 647 of 1992 etc. etc.

From the Judgment and Order dated 18.10.1991 of the Bombay High
Court in W.P. No. 908 of 1984.
G
Soli J. Sorabjee, S. Ganesh, R.F. Nariman and R.N. Keshwani for the
Petitioners.

T.R. Anclhiyarjuna, KJ. Presswala, DJ. Kakalia, Sandeep Narain;
SbriNarain, Shyam Diwan, Gotam Patel, R. Karanjawala, M. Karanjawala H
4 SUPREME COURT REPORTS (1992) 3 S.C.R.

A and Ms. Aditi Gore for the Respondents.
The Judgment of the Court was delivered by

KASLIWAL, J. All the above Special Leave Petitions by builders in
B the city of Pune are directed against the judgment of the Division Bench
of the Bombay High Court dated 18.10.1991 dismissing the writ petitions
filed by the petitioners. The Learned Judges in their order dated 18.10.1991
stated that the Controversy raised in the petition before them stood con-
cluded by an earlier decision of the Divisioa Bench dated 15.4.1987. Thus,
no reasons have been recorded in the impugned order and in order to
C . decide the controve~sy before wi Learned Counsel referred to the decision
of the High Court dated 15.4.1987.

The factual matrix of the above cases may be slightly different, but
the legal controversies are common to all the cases and as such we are .i. -
D disposing of all the matters by one common order. It was pointed out
during the course of arguments that many more cases are pending in the
various courts at different stages and the fate of those cases also hinges on
the decision of these cases. In order to appreciate the controversies raised
in these cases, we would narrate the facts of SLP No. 647 of 1992 and 985
of 1992 which in our view would cover the entire spectrum of the questions
E raised before us.

In SLP No.647 of 1992

The original owners submitted an application for conversion of the
F old grant site into freehold sites vide letter dated 19.11.1980. The Canton-
ment Board Pune - the respondent No.1 (hereinafter referred to as 'the
Cantonment Board') on 2.12.1980 passed a resolution suggesting the set
b1;tcks and recommended that the area admeasuring about 10633 sq. feet
be allowed to be converted on the terms and conditions of payment fixed
G by the higher authorities. The petitioner through his architecht's letter
dated 16.12.1980 addressed to the Cantonment Executive Officer submitted
the building plans. The Cantonment Board vide resolution No.30 dated nil
month April, 1981 resolved that the plans be sanctioned under Section 181
of the Cantonments Act, 1924 (hereinafter referred to as 'the Act') subject
to AHO's No Objection. It was clearly mentioned in the aforesaid resolu-
H tion as under: -
,_ USMAN KHA1RI v. CANTONMENT BOARD [KASLIWAL, J.) 5

-,)-.. "The following formalities to be observed to be communicated A
when the plans to be. returned to the applicant. The sanction
be made effective only when the present rights over the land is
converted into freehold by the competent authority and con-
version cost be decided by the Government is deposited by the
applicant and subject to. clearance from competent authority
ULC Pune.
B

Government be requested to allow the party to proceed with
construction after talcing likely amount ~f freehold to avoid
delay. Copy of the plan be given to the applicant for procuring
the cement." c
The Military Estate Officer by his letter dated 2.3.1983 conveyed
sanction of the Government of India for conversion to freehold on payment
~>-.
of conversion charges of Rs.5,78,109 on account of transfer value of the
land. A condition was also put that the area of 2,167.44 sq. feet of land D
shall be surrendered, that was because of the set back suggested to which
the petitioner agreed. The petitioner by telegram dated 213.1983 adressed
to the Ministry of Law Justice and Company Affairs referred to his
personal discussion and requested for payment of conversion cost in ins-
talments. According to the petitioner this request was made on the basis
of the policy of the Government of India -declared vide letter dated E
18.6.1982. The petitioner tendered two demand drafts of Rs.75,000 and
Rs.40,641.80 ps. 011: 22.4.1983 being 1J5th of the amount of conversion
charges. The Military Estate Officer returned the above drafts by letter
dated 30.4.1983 on the ground that the aforesaid payments were only part
payments of the conversion cost and refused to accept the drafts. The F
...i. petitioner by letter dated 2nd May, 1983 addressed to the Director General
DL&C, Gove~ent of India, Ministry of Defence, New Delhi submitted
that the action of the Military Estate Officer was not proper and there was
no reason as to wbf the case of the petitioner alone was singled out and
why he refused to accept.the part payment, inspite of the policy of the
Government to accept the conversion char.ges in instalments. The G

...---
---
petitioner further submitted in the aforesaid letter that in any event, and
without prejudice to the rights and contentions as aforesaid and inspite of
paying the said conversion cost in instalments he is, however, ready and
willing to pay the entire amount of Rs.5,78,109 in lump sum. The Canton-
ment Executive Officer by his letter dated 23rd December, 1983 received H
6 SUPREME COURT REPORTS (1992) 3 S.C.R.

A by the petitioner in the first week of January, 1984, informed that the
Cantonment Board vide their resolution No.SO dated 21.10.1983 had
resolved to reject the building plans which were not inr~nformity with the
new scheme of the building restrictions. Since the building plans submitted
by the petitioner were not in confirmity with the new scheme of building
restrictions, the same were rejected and returned. It was also mentioned
B in the letter that the petitioner is advised to resubmit the building applica-
tions in accordance with existing· building restrictions which would be
considered duly on merit. The petitioner through his Advocate's letter
dated 25.1.1984 called upon the respondents to allow the inspection of the
said resolution and the new scheme of the building restrictions reserving
C their right to deal with the illegal rejection of the building plans already
submitted. The Cantonment Executive Officer by letter dated 7.2.1984
addressed to the petitioner's advocate offered to supply the Copies of the
resolution No.50 and the new scheme of the building restrictions on
payment of Rs.40. The resoluation No.SO dated 21.10.1983 clearly stated
D ·that in view of the new scheme of building restrictions imposed by the
GOC-in-Chief, Southern Command w.e.f. 24.12.1982 the same will be made
applicable to all the building applications which have not been sanctioned.
The resolution further stated that where the sanctions were given for
conversion into freehold rights and where such conversions had not taken
effect before 24.12.1982 such conditional sanctions were invalid and all
E such building applications not in conformity with the new scheme of the ' A.
building restrictions be rejected. Aggrieved by the action of the respon-
dents rejecting the.building plans on the basis of the aforesaid resolution
passed by the Cantonment Board, the petitioner preferred a Writ Petition
No.908 of 1984 in the High Court.
F
The petitioner -in the Writ Petition inter alia prayed that the
petitioner was entitled to construct the building as per plans duly sanc-
tioned by the Board and the said plans were valid and subsisting. It was
further: prayed that it may be declared that the plans of the building
submitted by the petitioner and duly sanctioned by the Board in April, 1981
G were operative and the condition imposed viz., of obtaining the conversion
was irrelevant and cf no consequence and not binding on the petitioner. It
was also prayed that th.e resolution No.SO dated 21.10.1983 be declared /a·
---..
invalid an10, inoperative)ifia~ and thavtJle n~w scheme ~f building restric-
tions imposed by the GOC-in- Chief, Soutb.,tfu Command were inoperative
H in law and invalid and in any case the said conditions do not affect the
USMAN KHATRI v. CANTONMENT BOARD [KASLIWAL, J.) 7

petitioner's building plans sanctioned by the respondent in April, 1981. It A
was also prayed that an appropriate writ, direction or order be issued
directing the respondents to accept the amount of conversion charges of
Rs.5,78,109 in equal instahnents of five years or in any other instalments as
directed and laid down by the policy of the Government in their letter
dated 18.6.1982 or in such other manner as Hon'ble Court may be pleased
to direct.
B

-J, In SLP No.985 of 1992

The petitioners applied on 1.4.1980 for conversion of the land from
old grant terms into freehold. The Cantonment Board vide resolution C
No.7(5) dated 28.6.1980 recommended the conversion of land to freehold.
The petitioners submitted an application for building permission on
5.7.1980. The Cantonment Board on 4.8.1980 passed a resolution which
inter alia stated as under:-

"The following formalities required to be observed and to be D
communicated when the plans are to be returned to the ap-
plicant. The sanction be made effective only when the present
rights over the land is converted into freehold by the competent
authority and conversion cost as decided by the Government
is deposited by the applicant and subject to clearance from E
competent authority ULC, Pune."

According to the petitioners the above resolution was not communi-
cated to them. The petitioners' architect on 18.8.1980 forwarded two sets
of plans to get them certified by the Cantonment Board for cement
purposes only and assured the Board that if the Government did not
F

---
I
sanction conversion plans, the petitioners would not demand any compen-
sation. The Cantonment Board by letter dated 15.9.1980 forwarded· the
copy of the plans as desired for procuring cement and not for any execution
of work and expressly stated that it cannot be deemed as sanction under
Section 179 of the Act. On 2.2.1983 a notice was given by the petitioners G
to the Cantonment Board alleged to be under Section 181 (6) of the Act.
The said notice stated that the Board had failed to communicate the
sanctioned plans to the petitioners and that if such negligence/omission
continued for 15 days after the receipt of the notice by the Board the plans
shall be deemed to have been sanctioned. The Cantonment Executive H
8 SUPREME COURT REPORTS [1992) 3 S.C.R.

A Officer sent a reply on 4.2.1983 stating that the property was held on old
grant terms; that· there was no neglect or omission by the Board and the
building plans would be released only after receipt of sanction for conver-
sion into freehold rights. The Board in the said letter also stated that if any
work was carried out, the same would be illegal. The Cantonment Board
B vide its resolution dated 5.2.1983 approved the reply sent by Cantonment
Executive Officer dated 4.2.1983. Again the Board vide letter dated
16.2.1983 warned the petitioners that any threatened work would be illegal.
The petitioners filed an appeal on 5.3.1983 under Section 274 of the Act
against the Board's letters dated 5.2.1983 and 16.2.1983. The Military
C Estate Officer by letter dated 2.8.1983 informed the petitioners that the
Government had granted sanction to the conversion of the land into
freehold and the payment was to be made on or before 15.8.1983. On
2.11.1982 the petitioners were granted permission by the defence Estates
Officer to pay the conversion charges in five equal instalments ·_of
---
Rs.1,03,338 each. On 30.1.1984 the petitioners gave notice to the Board that
D they were starting building constructions. On 7.2.1984 notice given by the
Cantonment Board to the petitioners that as no sanction had been com-
municated by the Board to them, any construction raised by the petitioners
would be illegal. The appeal filed under Section 274 of the Act was decided
by the Appellate Authority and the judgment received by the Cantonment
E Board on 8.2.1984. The Board in the meantime vide resolution No.SO dated
21.10.1983 rejected the plans and conveyed the same vide letter dated
10.2.1984. The letter dated 22.2.1984 by which the plans were sought to be
returned was not accepted by the petitioners. The petitioners filed Writ
Petition No. 868/84 in the High Court and obtained an ex parte interim
F order on 28.2.1984. In February, 1986, it was noticed by Junior Engineer
of the Cantonment Board that the existing building was demolished and
excavation work had commenced by the petitioners. The Cantonment
Board submitted an application in the High Court for vacating the interim
order and the same was vacated by order of the High Court dated
G 30.4.1986. The petitioners raised considerable constructions between
28.2.1984 when ex parte interim order was passed till 30th April, 1986,.when
the same was vacated.

Facts regarding sanction to freehold, deposit of construction charges,
H and constructions made on the land.
USMAN KHATRI v. CANTONMENT BOARD [KASLIWAL, J.] 9

S.L.P. No.647 of 1992 A
In this case though intimation of sanction for. conversion into
freehold was given on 2.3.1983 but not a single pie has ~een paid till date
towards conversion charges and no constructions have ~been made by the
petitioners.
B
S.L.P. No. 648 of 1992

J.. In this case according to the Cantonment Board the property is held
by the petitioners on lease in Form NCantonment Code of 1899, under
Condition No.2 of the lease. The Cantonment Board is empowered to C
sanction the erection of new buildings on charging revised rent and
premium. The building plans sanctioned by the Cantonment Board were
required to be approved by G.O.C.-in-Chief (Director Defence Lands and
Cantonments). The plans were sanctioned by the Cantonment Board and
concurrence of GOC-in- Chief was obtained. The G.O.C.-in-Chief while
giving his concurrence directed the Cantonment Board to charge full D
market rent and premium for commercial purpose vide letter dated 19th
October, 1982 called upon the petitioners to pay the revised rent and
premium. The petitioners by their undated letter received by the Canton-
ment Board on 2nd March, 1983 expressed their inability to pay the
revised rent and premium and requested for instalments. The petitioner as E
such has not paid any amount towards rent and premium and the plans
which were sanctioned ceased to be valid as the sanction has not been
communicated nor the same can be said to be into force on 24th Decem-
ber, 1982 when the first scheme of building restriction came into force.
0

Even otherwise the sanctioned plans were valid only for a period of one
year as per Section 183 of the Act. Thus in this case not a single pie has F
been paid towards the revised rent and premium nor any construction has
been made.

S.L.P. No.908 of 1992

In this case vide letter dated 21.1.1984 intimation of sanction for G
conversion was given to the petitioner. The amount was allowed to be paid
in instalments and the last instalment was to be paid on or before 31.8.1985
but the final instalment was paid on 30th March, 1990. The petitioners have
made constructions consisting of basement, mezzanine and four upper
storeys with RCC work. H
10 SUPREME COURT REPORTS (1992) 3 S.C.R.

A S.L.P. No.969 of 1992

In this case the intimation of sanction for conversion was conveyed
on 15.12.1982 and full price of conversion has been paid and no construc-
tion has been made.

B S.LP. No. 976 of 1992

In this case the intimation of sanction for conversion was given on
12.11.1982. The petitioners paid the first instalment on 1.3.1983, second
instalment on 93.1984 but have not paid the remaining three instalments~
Final instalment ought to have been paid by 1.3.1987.. No constructions
C have been made on this plot of land.

S.L.P. No.985 of 1992

In this case the sanction for conversion was intimated on 2.8.83. The _),
first instalment was paid on 2.11.1983 and the 5th and final instalment was
D paid on 3.12.1991. Though final instalment ought to have been paid on or
before 1.11.1984.

Before dealing· with the contentions raised before us we deem it
proper to set out the legislative.history of the relevant orders and bye-laws
E made from time to time during the period in question.. ,...A.

The Pune Cantonment is governed by the Cantonments Act, 1924.
Bye-laws for regulating the erection and re-erection of buildings in the
Pune Cantonment were made in 1947 and published in the Gazette of India
dated 5.4.1947.
F
The GOC-in-Chief, Southern Command issued an order dated
24.12.1982 in exercise of power under sub-section (2) of Section 181 of the
Act. This new scheme of restrictions issued by the GOC-in-Chief had
already been approved by the Board vide their resolution No30 dated 9th
G December, 1982 laying down the minimum space required to be left open
and floor space index to be adhered to in the matter of new constructions. ·
The scheme of restrictions was made to come into force with immediate
effect. This order dated 24.12.1982 laid down the floor area ratio as
under:-
USMAN KHATRI v. CANTONMENT BOARD [KASLIWAL, J.] 11
"
•
~ (a) FLOOR AREA RATIO A
The permic;sible FAR shall be 1.5 for purely residential building
and 2.00 for building with a mixed residential and commercial
user subject maximum tenement density of 250 T/Ha. provided
in a building with mixed residential and commercial user the
commercial riser will be permitted only on the ground floor and B
the residential user and commercial user shall not exceed FAR
_J, 1.5 and 0.5 respectively.

(b) FRONT OPEN SPACES

The minimum set back from existing or proposed road shall be c
as under:-

(i) For Streets

4 m and above ...........................width 1.5 m.
D
(ii) and areas where shops/commercial user exist/proposed 2.25
m."

Second scheme of restrictions dated 26.3.1984 modifying the
earlier order dated 24.12.1982 reads as under: -
~- E
"PUBLIC NOTICE

WHEREAS it is necessary for the prevention of overcrowding
in Pune Cantonment to impose restrictions under Section 181
A of the Cantonments Act. F
AND WHEREAS public notice inviting objections has been
issued in this behalf.

AND WHEREAS I have carefully considered all the objections
received in reply to the public notice. G
AND WHEREAS I am satisfied that such a scheme of restric·
-_,
tions is necessary to prevent overcrowding in Pune Canton-
ment.
NOW THEREFORE in exercise of the powers vested in me H
12 SUPREME COURT REPORTS (1992) 3 S.C.R.
'
•
A under Section 181 A of the Cantonments Act 1924, I hereby ;i..__
sanction the following scheme of restrictions: -

(a) The permissible Floor Space Index shall be 1 in the civil
area notified under Section 43 A of the Cantonments Act
and bazar areas notified under Rule 2(b) of the Cantonment
B Larid Administration Rules, 1937 and 0.5 in the remaining
areas of Pune Cantonment.

(b) Marginal open space alone the periphery of land or plot
shall be 4.5 metres minimum for sites in areas other than
c the civil area and bazar areas.

(c) The height of all buildings includings public/Government
buildings will be restricted to a maximum of 18 metres.

(d) The maximum number of storeys permissible shall be --
D ground plus two floors in all areas of the Cantonment.

This order will come into force with immediate effect. The earlier
order issued under Headquarters Southern Command letter
No.2144/IX/DLC dated 24 Dec., 82 would stand modified to the extent
E mentioned above from the date of this Order.

PUNE

Sci/- TS OBEROI
Dated 26th March, 1984 Lieutenant General
F GENERAL OFFICER COMMANDING-IN-CHIEF

NOTE: - It is clarified for information of the general public
that the above orders will be effective from the date the GOC-in
C, HQSC, has signed the above order i.e. 26th March, 1984.
These restrictions will apply only to the buildings whose plans
G will be considered/passed on or after 26.3.84. Building plans
passed prior to 26.3.84 will be governed by the FSI existing
during that period.

Dt. 4th April, 1984 Sci/- SP NIJHAWAN
H CANTONMENT EXECUTIVE OFFICER PUNE"
'
USMAN KHATRI v. CANTONMENT BOARD [KASLIWAL, J.] 13

Pune Cantonment (Building) Bye-Laws 1988 published in the A
Gazette dated April 30, 1988. These bye-laws have been framed in exercise
of the powers conferred by Section 186 and 283 of the Act after inviting
objections and suggestions. Open space and height limitations in notified
civil area, bazar area and remaining areas in accordance with byelaw No. ·
21, 23, 24 and 25 now reads as under: -
B
"APPENDIX 'H'
(See Byelaw Nos. 2~, 23, 24 and 25)

OPEN SPACE AND HEIGHT LIMITATIONS IN
NOTIFIED CIVIL AREA BAZAR, BAZAR AREA AND C

-- REMAINING AREAS.

The permissible floor area ratio shall be as per details given
below:-

1. The permissible F.A.R. shall be 100 in the civil area notified D
under Section 43-A of the Cantonments Act, 1924 and bazar
area notified under Rule 2-B of Cantonment Land Administra-
tion Rules, 1937 and in Ghorpuri Village and Bhairoba Nallan
area, the land of which area is under the management of the
Collector, Pune District within the limits of the Cantonment, E
but owned by private individuals. The F.A.R. in area other than
mentioned above shall be 50.

2. Marginal open space along the periphery of land or plot shall
be 4.5 metres minimum for sites in area other than the civil
area. Ghorpuri Village, Bazar areas and Bhairoba Nalla area. F

3. No erection or re-erection of a building shall be permissible
beyond the set-back line, which shall be determined by adding
one meter to the existing width of the street or in accordance
with the road widening scheme of the Board, whichever is more, G
in notified civil area or notified Bazar Area, Ghorpuri Village
and Bhairoba Nalla area.

In the demolition and re-construction scheme of a property in
these areas, if the number of existing tenements exceeds 250
per hectare and the existing FAR of the property is more than H
14 SUPREME COURT REPORTS [1992] 3 S.C.R.

A 125; the FAR for such scheme may be permitted upto 25 per
cent above the permissible FAR of 100.

4. The height of all buildings will be restrict~d to a maximum
of 18 metres.

B 5. The maximum number of storeys permissible shall be ground
plus two floors in all areas of the Cantonment.

[File No. 12/15/C/L&Cn3] _>---
G.S. SOHAI, Contonment Executtve Officer"
c A common feature of all the above cases is that the petitioners were
relying on the building plans submitted before the first scheme of building
restrictions was brought into force on 24.12.1982. The petitioners were
-
intimated that their plans could be sanctioned only after conversion of the I

old grants into freehold tenure and subject to the payment of conversion .---...J
D charges by them. In the first scheme of building restrictions issued on 24th
December, 1982 for the first time provision was made for the minimum
open space required to be left and the ~aximum floor space index.
According to this scheme the permissible F.A.R. was kept as 1.5 for purely
residential buildings and 2.00 for buildings with a mixed residential and
commercial user subject to maximum tenement density of 250 T/Hs
E provide.cl in a building with mixed residential and commercial user. The / ......
commercial user will be permitted only on the ground floor and the
residential user and commercial user shall not exceed F.A.R. 1.5 and 0.5
respectively. None of the petitioners were willing to accept the aforesaid
scheme and did not submit fresh building plans in accordance with the first --
F scheme of restriction of 24th December,-1982: In view of the fact that there
was no such restriction in the Pune Cantonment Building Bye Laws, 1947,
).._
the petitioners were taking the stand that the building plans already sub-
mitted by them before 24.12.1982 should be approved. It is no longer in
dispute on behalf of the petitioners that the respondents had right to put
G a condition of old grants to be converted into freehold but their stand was
that the scheme of restrictions issued by the G.O.C.-in-Chief dated
24.12.1982 should not be made applicable in their cases.
~
On the other hand the Cantonment Board had taken a clear stand
that in or about the late 1970's and early 1980's a large number of builders
H in order to take advantage of the lenient• building regulations in the
USMAN KHATRI v. CANTONMENT BOARD (KASLIWAL, J.] 15

Cantonment of Pune had come forward and had started building activities. A
However, the G.O.C.-in-Chief took notice of the fact that the existing
bye-laws did not contain adequate provisions to prevent over crowding as
a result of haphazard and high rise con5tructions. The Cantonment Board,
Pune had also prepared a scheme laying down the minimum open space
required to be left open when new constructions were undertaken and also E
laying down the maximum floor space under resolution dated 9th Decem-
ber, 1982. The Government also decided as a policy matter that the
building plans be sanctioned after converting the land from old grant to
freehold tenure. According to the Cantonment Board some of the builders
had started constructing buildings in blatant disregard of the first scheme
of restriction dated 24th December, 1982 and also without making the full C
payment of conversion charges. The Board had also passed a resolution
No.SO dated 21st October, 1983 to reject the building plans which were not
in conformity with the new scheme of the building restrictions and the same
were rejected and returned. It was also intimated to the petitioners to
re-submit the building applications in accordance with the new scheme of D
building restrictions and the same would be considered and disposed of on
merit. It may be further noted that the Cantonment Board by its resolution
of October 30, 1981 had resolved that the sanction was valid only for
procuring cement .and not for execution of work and no construction
should be started till final sanction for conversion was received from the
Government. On November 17, 1981 the Cantonment Board forwarded a. E
copy of the Plan to the petitioners for procuring cement only and in clear
terms stating that it should not be deemed to have been sanctioned under
Section 179 of the Act. In spite of this some of the petitioners demolished
. the structure with a view to construct a new building.
F
Being aggrieved by the aforesaid action taken by the Cantonment
Board, the petitioners filed writ petitions in the High Court. A Division
Bench of the High Court comprising of Justice Sawant (as he then was)
and Justice Kantharia gave ,a detailed Judgment in W.P. Nos.2236 and 2137
of 1983 vide order dated 15.4.1987. As already mentioned above the
impugned orders dated 18.10.1991 in the case of the. present petitioners, G
have followed the earlier decision dated 15.4.1987. The High Court in its
Judgment dated 15.4.1987 held that till .the conversion was gr~ted, the
application for construction wa5 to be refused under Section 181 (4)(b) of
the Act on the ground that there was dispute within the meaning of the
said provisions. It was also held that till all the formalities required by the H
16 SUPREME COURT REPORTS [1992) 3 S.C.R.

A grantee of the conversion including the payment in full of the cost of the
conversion was completed by him the conversion was not to be deemed to
have been made and, therefore, the plans could not be sanctioned by the
Board till that time. No plan for construction could have been sanctioned
till the conversion was accepted by the petitioners themselves on the terms
B it was granted and payment of the cost of conversion was made. It was also
held that in fact no sanction has been given to the building plans for
COD!itruction. The Board in its resolution had made it clear that the plans
would not be effective till the conversion was granted and the amount was
deposited as directed. by the Government. The condition of conversion was
not severable from the sanction to the plan. It was on the other hand a
C condition precedent and_ foundation of the sanction. It was also held that
the new scheme formulated by.the G.O.C.-in-Chief on December24, 1982
was legislative in nature. It "!'as not in conflict with the bye-laws. And even
-
if that be so, the scheme being later in point of time will prevail over the
-1.._
bye-la~ When there will be a conflict between the two. It was further held
D by the High Court that the Board will have to sanction a plan afresh after
conversion of a grant. Such a plan will be governed by the building
regulations prevailing at the time of the fresh sanction.

· It is further important to note that the petitioners in the writ petitions
were seeking a relief to give a direction to the respondents to allow the
E petitioners to make constructions on the basis of the building plans sub-
mitted by them prior to 24.12.1982 and not be apply the restrictions
imposed in the scheme. of restrictions brought into force on 24th Decem-
ber, 1982. Thereafter the G.O.C.-in-Chief issued the second scheme of
restrictions on 26th March, 1984 in exercise of the powers vested in him
F under Section 181A of the Act Whereby further restrictions were put in the
matter of floor space index as well a5 in the height of the buildings.
According to this second scheme of restrictions the height or' the building
was restricted to a maximum of 18 metres. The maximum number of storeys
permissible shall be ground plus two floors in all areas of the Cantonment
and the pelll)issible F.A.R. was reduced to 1.0 in the civil/bazar areas. It
G may be further noted that the earlier bye-laws of 1947 have been super-
..seded by the PlUle Cantonment (building) bye-laws 1988 made in exercise
.of the powers conferred under Sections 186 and 283 of the ~ct and the
new b}re-laws of 1988 have been published in the Gazette of April 30, 1988.
These bye-laws of 1988 have approved the second scheme of building
ll restrictions dated 263.1984 in the matter to opep spaces, area and height
USMAN KHATRI v. CANTONMENT BOARD (KASLIWAL, J.] 17

limitations of the buildings in the Cantonment of Pune. A

It was now contended before us on behalf of the petitioners that they
are willing to abide by the first scheme of restrictions of 24th December,
1982 and the petitioners may be permitted to furnish building plans in
accordance with the said scheme and it may be held that the second
scheme of restrictions dated 26.3.1984 and the bye-laws of 1988 are not B
applicable in their case. In case of the petitioners in S.L.P. Nos.908/92 and
985192 it has been further contended that they have already raised con-
structions and as such so far as these two cases are concerned the con-
structions already raised may be allowed to be kept in tact. It has been
submitted that so far as the petitioner in S.L.P. No.985 of 1992 is concerned C
no constructions were made in illegal manner but the same were made
between 28.2.1984 and 30.4.1986 during which period the stay order passed
by the High Court remained in force.

We have considered the arguments advanced before us and we are D
clearly of the view that there is no force in any of these special leave
petitions. The builders are playing the game of hide and seek and did not
come in a straight forward manner accepting the first scheme of restrictions
on buildings brought into force as back as on 24th December, 1982 and
we~t on insisting that the said scheme of restrictions Wet$ not binding on
them. We cannot be oblivious to the fact of thrust of population in all the E
Urban cities in our country and the problem of basic amenities to be made
available to the residents of the cities inluding Pune. We are already in the
last decade of the 20th century and all planning is to be done on a long
term basis taking note of the growth of industries and over crowding of
population causing environmental and pollution problems in the cities. F
Growing awareness of these problems has activated the Government as
well as the various social activists in taking notice of this menacing problem
which is posing a danger to the very survival and existence of human race.

It appears from the record that the Union Ministry of Environment,
State of Maharashtra, National Commission on Urbanization and expert G
working group on Cantonment areas took notice of this problem in the city
of Pone and suggested schemes which took the shape of orders issued by
the G.O.C.·in-Chief, Sourthern Command and amendments in the bye-laws
by the Cantonment Board. The petitioners did not acquire any legal right
in respect of building plans until the same were sanctioned in their favour H
,.i

18 SUPREME COURT REPORTS [1992] 3 S.C.R.

A after having paid the total amount of conversion charges in lump sum or
in terms of sanctioned instalments and getting conversion of their land in
free hold tenure. The first scheme of restrictions was brought into force
long back on 24th December_, 1982 and the second on 26th March, 1984.
The petitionrs did not submit any fresh building plans in accordance with
the first or the second scheme of restrictions. Many of the petitioners have
B not paid a single pie towards the conversion charges, some of them have
paid only few instalments and the others though have paid the instalments
but not according to the schedule. In any case the High Court is right in
taking the view that the building plans can only be sanctioned according to
the building regulations prevailing at the time of sanctioning of such
c
-
building plans. At present the statutory bye-laws published on 30th April,
1988 are in force and the fresh building plans to be submitted by the
petitioners, if any, shall now be governed by these bye-laws and not by any
other bye-laws or schemes which are no longer in force now. If we consider
a reverse case where building regulations are amended more favourably to
D the builders before sanctioning of ~uilding plans already submitted, the
builders would certainly claim and get the advantage of the regulations
amended to their benefit. ·

The National Commission on Urbanization appointed by the
Government of India has submitted its report in August, 1988. In its report
E at points 12.6.18 and 12.6.19 it has recommended for the Cantonment ,.),
Board Pune as under: -

"12.6.18 Pune is a recent example of how an unbridled
Cantonment Board promoted development on a vastly larger
F scale than prevailed in the adjoining municipal areas, affectively
abolished ceilings on FAR for commercial constructions and
even permitted the sale of land to private parties on a free-hold
b~sis for residential and commercial development. The impact
on the rest of the city in terms of congestion and civic services
was disastrous, especially since the cantonment land involved
G happened to be in the heart of Pune.

12.6.19 Realising the destructive effect of such develop-
ments on the character of cantonment towns, (a character
which, the Defence Authorities are unanimously agreed, is
H imperative to preserve from the point of view of morale of the
USMAN KHATRI v. CANTONMENT BOARD [KASLIWAL, J.] 19

armed forces and congeniality of surroundings) the Ministry of A
Environment has accepted in 1986 the recommendations of the
Report of the Working Group on Cantonment Areas set up
jointly by the Department of Environment and the Ministry of
Defence proposing uniform norms for urban development and
conservation in all Cantonment areas in the Southern Com-
mand. Among the recommendations was the urgent suggestion
B
that FAR in cantonments must be reduced to a maximum of
ONE (1:1) in civil and bazar areas and to 0.5 in the bungalow
areas, with a maximum height of 18m and a maximum of ground
plus two storeys. This was based on the experience of Pune and
is the norm for all the 15 cantonments in the Southern Com- C
mand. It should be tailored downwards for smaller cantonments
such as Wellington.

__>-- The working group appointed by the Government of India, Depart-
ment of Environment by order~dated July 12, 1984 to formulate environ- D
mental guidelines for the planning of military station has also made the
following recommendations. The relevant recommrndations for the Can-
tonment Board, Pune are reproduced as under:

"In this connection, the working Group would like to stress the
J.. importance and necessity for effective building controls and E
regulations without which any plan for urban renewal of Can-
tonments cannot be effectively pursued. The group had occas-
sion to visit Poona Cantonment and study the building
restrictions in vogue in the light of a number of representations
received from a Bombay-based environmental group. In Poona F
Cantonment Arca the spurt in building activities began in 1976
when Government liberalised the land policy to allow the
conversion of old grant sites in civil areas of the Cantonment
into free-hold. The intention was basically to help those families
who live in the Cantonment where housing was inadequate.
Prior to December, 1982, the building bye-laws of Poona Can- G
tonment Board did not provide for any restrictions on floor
space in.dex (FSI) or height of buildings. Owing to non-exist-
ence of FSI restrictions, high-rise building came up in the
densely populated civil area of the Cantonment. In order to
prevent over-crowding and congestions and ensure sanitation, H
,i

20 SUPREME COURT REPORTS [1992) 3 S.C.R.

A it became necessary for the GOC-in-C, the command to inter-
vene in exercise of the powers vested in him under Section A
181-A of the Cantonments Act, 1924 and impose a scheme of
I
restriction in March, 1984. ~

(a) The FSI was restricted to 1 in the 'civil' and 'bazar' areas
B and 0.5 in the 'bangalow'areas.

(b) maximum height of buildings was stipulated as 18 mtrs.
>--
(c) maximum number_of storeys is to be ground plus 2.
c The Cantonment Board has initiated amendments to the
~
building bye-laws incorporating the above restrictions which
are stated to be under the consideration of Government. The \.
possibility of land speculators and builders taking advantage of
the policy to permit conversion of old grant sites into free hold, -'..._,
D as pointed out above, lies at one end of the spectrum. At the
other end is the inability of the urban-dwellers to build new
houses in place of the dilapidated house or tenement or bun-
galow. Even where the Government has resumed the bungalows
it is not in a position to reconstruct them for want of resources.
The working Group is of the view that the land policy of the
E ;.,.
Government in regard to .the civil areas of the Cantonment
should be more liberal so as to contribute to. urban renewal.
However it would be required toi tighten building controls and
regulations, if environmental degradation, as it has taken place
in Poona Cantonment on account of the laxity of such controls ·~
F and regulations, is not to occur in other Cantonments".

One of the suggestions and recommendations reads as under: - >--
"The group has observed that bull~ bye-laws particularly the
FSI restricitons are now being enforced in 15 cantonments
G ·falling under the Southern Command. Building regulations are
essential to control the quality of built environment. It is recom~
mended that similar steps should be taken in all cantonments
through out the country and rigidly e¢orccd to stop commer-
cial building activities within the limits of military estab-
H lishments, as had occurred in Pune Cantonment".
USMAN KHATRI v. CANTONMENT BOARD [KASLIWAL, J.] 21

,A None of the petitioners have submitted fresh building plans accord- A
ing to the scheme of building restrictions in force at the relevant time and
no sanction was accorded in favour ofaily of the petitioners to the building
plans submitted orginally. In. case petitioners shall submit fresh building
plans now the same would be governed by the .new bye-laws which have
already come into force on 30.4.1988.
B
The schemes of building restrictions made by GOC-in-Chief dated
---'. 24.12.1982 and 26.3.1984 and amended bye-laws in 1988 putting restrictions
and reducing the height and floor space index in respect of multi-storeyed
buildings have been made in larger public interest and for the benefit of
the entire population of the city of Pune. No argument challenging the c
validity of such schemes or bye-laws have been addressed before us. The
slogan of the builders and land owners of utilising the maximum area for
construction of high rise buildings for fulfilling the need of houses in big
_>- urban cities should always be subservient to the building restrktions and
regulations made in the larger interest of the whole inhabitants of Pune
and keeping in view the influx of population, environment hazards, sanita- D
tion, provision for supply of water, electricity c..nd other amenities.

A couplet in Telugu translated in English is quoted:-

"I will not stop cutting down trees,
> .. Though there is life in them.
E
I will not stop plucking out leaves,
Though they make nature beautiful.
I will not stop hacking off branches,
Though they are the arms of a tree.
Because. - F
I need a hut."
~

It was also contended on behalf of the petitioners that this Court by
an order dated 23rd February, 1990 in Shoriar Baharam Irani & Ors. v.
Pune Cantonment Board & Ors. in. civil Appeal No. 2184 of 1987 filed
against the judgment of the High Court dated 15.4.1987, have allowed the G
_...,
----=--
appellants of that case to make constructions in accordance with the
building p~an as sanctioned by the Cantonment Board subject to the
restrictions imposed by the order of the GOC-in-Chief dated 24.12.1982.
It is submitted that the cases of the petitioners are identical and as such
they are also entitled to a similar order as passed in the above mentioned H
22 SUPREME COURT REPORTS (1992] 3 S.C.R.

A case. We find no force in this contention. In the order dated 23.2.1990
referred to above, it was clearly observed as under: -

"It is stated before us that a number of petitions are pending
before the Bombay High Court challenging the validity of
various building plans sanctioned by the Cantonment Board,
B Pune, in respect of other parties. We accordingly make it clear
that this order will not effect the questions raised in those
petitions, as we express no opinion on the merit of the conten-
tions raised by the parties. However, we direct that the Writ >--
Petition No.156/87 and Writ Petition No. 1547/87 pending
c before the Bombay High Court against the appellants will stand
disposed of in terms of this order.

The appeals are accordingly disposed of without expressing any
opinion on the contentions raised by the parties or on the
questions decided by the High Court, under appeal."
D
A perusal of the observations made in the above order leave no
manner of doubt that this Court had clearly mentioned that it was not
expressing any opinion on the contentions raised by the parties nor on the
questions decided by the High Court. Thus, the above decision cannot be
considered as a precedent for the cases in hand before us and no help can
E be sought by the petitioners on the questions now raised before us and
decided by giving detailed reasons as mentioned above.

In .the result, we find no force in these petitions and the same are
dismissed with no order as to costs.

G.N. Petitions dismissed .

.

-