Andhra HC (Pre-Telangana)
P. Gyan Chander vs Secunderabad Cantonment Board And Ors. on 26 August, 2003
Equivalent citations: 2003(6)ALD65
ORDER V.V.S. Rao, J.
1. The petitioner claims that he allegedly purchased plot No. 17, admeasuring 232 Sq. yards in S.No. 157/9 (New S.No. 157/ 10) situated at Thokatta Village, Secunderabad, by registered sale deed dated 16.8.1982. According to the petitioner plot No. 17 forms part of layout approved by Secunderabad Cantonment Board in favour of Government Press Employees Co-operative House Building Society Limited, Chanchalguda, Hyderabad (for short, the Society). The petitioner approached the first respondent by making an application on 18.12.1999 for construction of residential building. By letter dated 30.12.1999 first respondent rejected the request for building permission on the ground that the plot does not form part of the sanctioned layout. Assailing this order, present writ petition is filed.
2. The writ petition is opposed by first respondent by filing counter-affidavit. In the counter-affidavit filed by the Executive Officer of the Cantonment Board, it is stated that the layout in favour of the Society was sanctioned in 1987 and therefore the petitioner could not have purchased plot No. 17 in the lay out sanctioned in 1987 which has shown the same as owner's land and therefore the petitioner cannot claim any right over the land especially when civil suits are pending between petitioner and third respondent. Reliance is also placed on bye-law 14 of layout byelaws of the Cantonment Board.
3. Third respondent also filed a counter-affidavit alleging that he has purchased plot No. 12 from the Society and that plot No. 12 is none other than plot No. 17 and therefore the petitioner has no right over the plot. It is also stated that petitioner filed a suit against third respondent for perpetual injunction and counter suit filed by third respondent is also pending before Court of XI Additional Senior Civil Judge, City Civil Court, Secunderabad, being O.S. No. 1424 of 1999 filed by the third respondent and O.S. No. 1427 of 1999 filed by petitioner. Both the suits are still pending.
4. Learned Counsel for the petitioner Sri T.C. Dhanasekhar, submits that the Society submitted a layout which was approved on 12.12.1987. As per the layout plot No. 17 admeasuring 231.66 Sq. yards is also included in the lay out and therefore there cannot be any objection on that score. He would also submit that when the Society allegedly submitted a revised layout which was approved by the Cantonment Board on 27.2.1990, though the same was not assigned, the land has been kept apart of the lay out and therefore permission cannot be refused.
5. Learned Counsel for first respondent, Sri Ramanandam, and learned Counsel for third respondent, Sri Jyoti Prasad, however, refute the contention of the learned Counsel for the petitioner, Sri Dhanasekhar. They admit, that though lay out was approved on 12.12/1987 plot No. 17 was shown, the same was deleted in the revised lay out approved on 27.2.1990. Learned Counsel for the third respondent further submits that the land in question was sold by the Society to his client and petitioner has no right over the property. Learned Standing Counsel for Cantonment. Board also placed reliance on bye-law 14 of layout bye-laws and judgment of the Supreme Court in Poonam v. Municipal Coporation of Delhi, 2000 (5) Supreme 363.
6. Section 179 of the Cantonments Act, 1924 (for short, the Act) requires every person who intended to erect or re-erect any building in a cantonment to apply for sanction by giving notice in writing of his intention to construct the building. Under Section 181 of the Act it is competent for the Cantonment Board either to refuse to sanction erection or re-erection from sanction subject to such conditions as may be imposed. Section 181-A of the Act also empowers the Officer Commanding-in-Chief to impose restrictions on erection or re-erection of the building so as to prevent overcrowding or for the purpose of sanitation. A reading of Sub-section (1) of Section 181 would show that sanction of a building plan is subject to providing free passage, providing set back and ventilation to the building and provision of drains, latrines, urinals etc. Standards and norms with regard to these items are not specifically provided under Section 181(1) of the Act. However, power is conferred on the Board under Section 282 of the Act to make bye-laws inter alia for the purpose of laying out streets, regulation arid prohibition of erection of buildings without adequate provisions being made in the layout and location of streets. It is these bye-laws which essentially deal with norms and standards to be followed by every person intended to erect or re-erect building in the Cantonment Board area. In exercise of their powers under Sub-sections (19) and (39) of Section 282 read with Section 283 of the Act, the Cantonment Board has made Secunderabad Cantonment (Laying out of Streets, and Regulation and Prohibition of Erection of Buildings) Bye-laws, 1974, Bye-law 14 thereof reads as under:
14. Prior approval of the Cantonment Board :--No building notice under Section 179 of the Cantonment Act, 1924 (2 of 1924) shall be entertained until the layout is approved by the Cantonment Board, and streets, drains and water supply lines are laid to the satisfaction of the Executive Office at the cost of the applicant and handed over to the Cantonment Board by executing gift deed in favour of the Cantonment Board, Secunderabad, for maintenance. However, the Board may sanction building application in respect of such plots in a layout which are abutting on the existing main streets of Cantonment Board of Public Works Department or Military Engineering Services, if all other amenities are available.
7. A plain reading of the same would show that no person can give notice of construction under Section 170 of the Act unless and until the layout is approved by the Cantonment Board and streets, drains and water supply lines are laid to the satisfaction of the Executive Officer. In the case on hand, when the petitioner allegedly purchased the house site on 16.8.1982 under registered sale deed, admittedly the lay out was not approved. The layout was approved in 1987 which has shown plot No. 17 as well. In the revised layout which was approved in favour of the Society plot No. 17 stood deleted and it was shown as owner's land. When it is shown as owner's land, it cannot be treated as forming part of lay out. It is no doubt true that the petitioner may have suffered prejudice by one-sided action of the Society. To ventilate such grievance there are other remedies available, like filing suit against the Society and filing declaration. Indeed the petitioner also approached the XI Additional Senior Civil Judge, City Civil Court, Secunderabad, and filed a suit for injunction against third respondent, who also filed similar suit against petitioner. It is also brought to my notice that the petitioner obtained ad interim injunction against the third respondent from proceeding with any construction.
8. In Poonam 's case (supra) the Supreme Court considered similar question and observed as under:
The sanctioned revised layout plan which has been submitted to the Municipal Corporation of Delhi at this time is on record. To be remembered that by now Society had already carved out the additional plots and had sold them to various parties. By now the Municipal Corporation had refused permission to carve out more plots. Thus what had been sent by the Society was the revised layout plan which had been sanctioned in 1964 and on basis of which permission to construct had been granted in 1965. If the appellant's plot E-25 (new) existed it would have been shown in this layout; plan. This plan shows that in the revised layout plan there was no plot E-25 (New) .... In our view, from the above it is clear that in 1958 a layout containing 98 plots was sanctioned. There is no sanction for more than 98 plots. Including plot C-35 and C-36 there are already existing 98 plots in the Society. The Municipal Corporation of Delhi cannot be directed to create one more plot.
9. It was observed that unless and until the plot forms part of layout as sanctioned by municipal body, no permission can be granted to construct house. The petitioner therefore cannot maintain the writ petition. It is made clear that the Cantonment Board is not competent to sanction any layout unless and until the plot is part of approved layout. In that view of the matter, the impugned order is unassailable.
10. The writ petition is devoid of merits and is accordingly dismissed. No costs.