Case: Usman Gani J. Khatri of Bombay Etc Vs. Cantonment Board and Others Etc

in the Cantonment where housing was inadequate. Prior to December, 1982, the building bye-laws of Poona Cantonment Board did not provide for an y restrictions on floor space index (FSI) or height of buildings. Owing to non-existence 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, it became necessary for the GOC-in-C, the command to intervene in exercise of the powers vested in him under Section 181-A of the Cantonments Act, 1924 and impose a scheme of restriction in March, 1984. (a) The FSI was restricted to 1 in the civil and bazar areas 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. 27. 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 they policy to permit conversion of old grant sites into free hold, 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 bungalow. 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 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 to tighten building controls and regulations, if environmental degradation, as it has taken place in Poona Cantonment on account of the laxity of such controls and regulations, is not to occur in other Cantonments."One of the suggestions and recommendations reads as under:- "The group has observed that building bye-laws particularly the FSI restrictions are now being enforced in 15 cantonments falling under the Southern Command. Building regulations are essential to control the quality of built environment. It is recommended that similar steps should be taken in all cantonments through out the country and rigidly enforced to stop commercial building activities within the limits of military establishments, as had occurred in Pune Cantonment". 28. None of the petitioners have submitted fresh building plans according to the scheme of building restrictions in force at the relevant time and no sanction was accorded in favour of any of the petitioners to the building plans submitted originally. 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. 29. The schemes of building restrictions made by GOC-in- Chief dated 24.12.1982 and 26.3.19 84 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 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 restrictions and regulations made in the larger interest of the whole inhabitants of Pune and keeping in view the influx of population, environment hazards, sanitation, provision for supply of water, electricity and other amenities.A couplet in Telugu translated in English is quoted:- "I will not stop cutting down trees, Though there is life in them. 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 - I need a hut." 30. 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 appellants of that case to make constructions in accordance with the building plan 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 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, 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 contentions raised by the parties. However, we direct that the Writ Petition No. 156/87 and Writ Petition No. 1547/87 pending 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." 31. 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 be sought by the petitioners on the questions now raised before us and decided by giving detailed reasons as mentioned above.32.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We have considered the arguments advanced before us and we are 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 went on insisting that the said scheme of restrictions was not binding on them. We cannot be oblivious to the fact of thrust of population in all the Urban cities in our country and the problem of basic amenities to be made available to the residents of the cities including 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. 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 humanappears from the record that the Union Ministry of Environment, State of Maharashtra, National Commission on Urbanization and expert working group on Cantonment areas took notice of this problem in the city of Pune and suggested schemes which took the shape of orders issued by the G.O.C .-in-Chief, Southern 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 after having paid the total amount of conversion charges in lump sum or in terms of sanctioned installments 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 first or the second scheme of restrictions. Many of the petitioners have not paid a single pie towards the conversion charges, some of them have paid only few installments and the others though have paid the installments but not according to the schedule. In any case, the High Court is right in taking the view that the building plans ca n only be sanctioned according to the building regulations prevailing at the time of sanctioning 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. If we consider a reverse case where building regulations are amended more favourably to the builders be fore sanctioning of building 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,of the petitioners have submitted fresh building plans according to the scheme of building restrictions in force at the relevant time and no sanction was accorded in favour of any of the petitioners to the building plans submitted originally. 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 onfind no force in this contention. In the order dated 23.2.1990 referred to above, it was clearly observed asis 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, 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 contentions raised by the parties. However, we direct that the Writ Petition No. 156/87 and Writ Petition No. 1547/87 pending 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."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 be sought by the petitioners on the questions now raised before us and decided by giving detailed reasons as mentioned above.