THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.27300 of 2007 Date : 21-2-2008 Between: M/s.Remcom Sales Services Pvt.Ltd. Represented by its Director Ashok Kumar Lodha s/o.Abhay Mal Lodha .. Petitioner And The Cantonment Board, Represented by its Chief Executive Officer, Court Compound, Secunderabad .. Respondent THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.27300 of 2007 ORDER:- 1. This Court ordered notice before admission on 27- 12-2007. 2. Heard the learned Counsel representing the Writ Petitioner and also the learned Counsel representing respondent. 3. The order made in W.P.No.12314/2007 dt.6-12- 2007 is placed before this Court and it is also stated that since the present Writ Petition also is similar, the same can be disposed of with similar directions. 4. The Writ Petition is filed for a Writ of Mandamus declaring the action of the respondent in not granting permission to erect the building in plot bearing No.147 in Sy.No.61 & 62 and GLR S.No.352, admeasuring 450 Sq.Yds. (376.24 Sq.Mts) situated at Sardar Vallabhai Patel Poor Class Cooperative Housing Colony, Trimulghery, Hasmathpet Road, Secunderabad as illegal, arbitrary and consequently direct the respondent to accord permission to erect the building in the aforesaid plot and to pass such other suitable orders. 5. It is stated in the affidavit filed in support of the Writ Petition that the petitioner had purchased the property plot bearing No.147 in S.Nos.61 and 62 and GLR S.No.352, admeasuring 450 Sq.Yds. (376.24 sq.mts.) situated at Sardar Vallabhai Patel Poor Class Cooperative Housing Colony, Trimulghery, Hasmathpet Road, Secunderabad on 28-11-2005 vide registered sale deed for valuable consideration in the name of petitioner company from one Sri N.Raghavan Nair, having acquired the same through a registered sale deed dt.9-11-1986 and also stated that the vendor of the petitioner vendor had purchased the said property under a registered sale deed dt.18-4-1959. It is also further stated that the petitioner is intending to construct a residential building in the aforesaid property for which he obtained No Objection Certificate from the Air Port Authority of India at Chennai Air Port on 17-11-2006 as required. The petitioner made an application on 17-2- 2007 in Form ‘A’ under Section 179 of the Cantonment Act, 1924 and the building bye-laws of the Secunderabad Cantonment Board to erect a building in the aforesaid property by submitting plan. The petitioner paid a sum of Rs.700/- towards fee to the respondent on 6-11-2007 by way of receipt No.Z 025446 and further made a representation to the respondent on 6-11-2007 requesting him to grant permission for construction of proposed residential building in the subject property. It is further stated that even though the petitioner submitted plan by paying required fees and any permission from Air Port Authority of India, the respondent did not accord the permission to construct the building. As there is no reply from the respondent for permission, the petitioner approached the respondent in the first week of December 2007 requesting him to accord permission since the petitioner made an application according to the rules in existence. It is also further stated that orally the authorities of the respondent informed the petitioner that the application of the petitioner cannot be considered as the society had not handed over 40% of common area through gift deed as per layout bye-laws in favour of the respondent. Further, it is informed that the Board had unanimously resolved by its resolution No.7 dated 28-10- 2006 that the entire issue of ungifted layout may be referred to competent authority for obtaining necessary directions, but the petitioner came to know that the authorities did not refer the said issue to the competent authority till date. It is also further stated that the respondent prepared layout bye-laws and the same was published in the Gazette of India dated 9-3-1974 and it is called as Secunderabad Cantonment (Layout of Streets and Regulation and Prohibitions Erection of Buildings) Bye Laws 1974. Originally, the property was purchased by the vendor of the petitioner’s vendor on 18-4-1959 from the society. As there are sale transactions taken place in the year 1959, the society is not in existence after the formation of Secunderabad Cantonment (Layout of Streets and Regulation and Prohibitions Erection of Buildings) Bye Laws 1974 muchless subsequent to the initial sale. It is further stated that by the time these bye laws came into force, there was no society in existence and all the roads and other amenities like drainage, water, electricity are in existence and it is a well developed colony. The existing roads, drainage system and other amenities are being maintained and looked after by the respondent Board. Therefore the handing over the land by way of gift to the respondent by the individual does not arise at present. The respondent ought to have noted that the layout of the subject land was approved by the competent authority as back as half a century. Moreover inasmuch as approximately 90% permissions were accorded, the action of the respondent amounts to discrimination and the Board is estopped to raise such objection at present. The action of the respondent in not granting permission to construct building in favour of the petitioner in the subject land on the ground that the society had not handed over 40% of the land to the respondent Board is illegal, arbitrary and violative of Article 300-A of the Constitution of India. It is further stated that it is learnt that unless there is an order from the Court of Law, the respondent authorities would not consider the application of the petitioner. In such circumstances, the petitioner approached this Court. 6. In the counter affidavit filed, certain averments had been denied. It is also stated that the petitioner gave a notice under Section 179 of the Cantonment Act 1924 for construction of building on Plot No.147 in Sy.Nos.61 and 62 and GLR S.No.352, admeasuring 450 sq. yards, situate at Sardar Vallabhai Patel Poor Class Co-operative Housing Colony, Trimulgherry, Hasmathpet Road, Secunderabad. The society did not execute the gift deed in favour of the Cantonment Board to handover 40% of the common area. The petitioner was also informed that under a resolution dated 28-10-2006, the Board referred such matters to the competent authority i.e., Director of Defence Estate, Pune for giving necessary instructions. It is further stated that as per the Lay Out Bye Laws, it is mandatory that the owners shall have to transfer 40% common area to the Cantonment Board under a registered gift deed. The petitioner company is aware of the fact that the society had not transferred common land to the Cantonment Board and hence estopped from questioning the action of the Cantonment Board in not entertaining the notice given under Section 179 of the Cantonment Act 1924 and the Writ Petition is therefore not maintainable both on question of facts and law and the same is liable to be dismissed. 7. In K.Satyanarayana V. The Cantonment Board (W.P.No.12314/2007) dt.6-12-2007 this Court observed in para 8 as hereunder:- “Here is a case where the writ petitioner approached this Court specifically averring that in relation to almost all the other plots, the owners had been granted permission long back and constructions also had come up. It is also pertinent to note that at a particular point of time, when an application had been made, the building permission in fact had been granted and this fresh condition which is being raised for the first time in pursuance of the resolution in the impugned order had been incorporated. For certain reasons, as explained by the writ petitioner, the petitioner could not further proceed with the construction and it appears another application had been made. The said application had been rejected specifying a fresh ground. In the light of the facts and circumstances, this Court is satisfied that the writ petitioner need not be driven to the alternative remedy of filing an Appeal especially in the peculiar facts and circumstances of the case since the self-same authority exercising the power granted sanction at a particular point of time and the conditions specified in the said order, it appears, had been complied with, but the writ petitioner was unable to further proceed with construction. Subsequent thereto when an application again had been made, for reasons best known, the respondent is raising such an objection. Having granted permission to almost all other persons similarly placed within the vicinity, this Court is of the considered opinion that respondent is not justified in making such an order of rejection on such untenable ground. This action of the respondent is both arbitrary and also discriminatory, definitely hit by Article 14 of the Constitution of India. Hence, the impugned order is hereby set aside and the Writ Petition is hereby allowed. Let the respondent take appropriate decision in this regard in the light of the views expressed by this Court at the earliest, preferably within a period of two weeks from the date of receipt of a copy of this order. No costs.” 8. Having granted permission to almost all persons within vicinity, the respondent is not justified in making such an order of rejection on such untenable ground and hence in view of the same, the action is arbitrary and also discriminatory hit by Article 14 of the Constitution of India. Accordingly, the impugned order is hereby set aside and the Writ Petition is hereby allowed. Let the respondent take appropriate decision in the light of the views expressed by this Court at the earliest, preferably within a period of two weeks from the date of receipt of a copy of this order. It is needless to say that this Court is inclined to dispose of the present Writ Petition also with the above directions as directed in W.P.No.12314 of 2007. No order as to costs. _________________ Justice P.S.Narayana 21st day of February, 2008 NOTE: CC in one week smr