{"id":7405,"date":"1996-08-09T00:00:00","date_gmt":"1996-08-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pune-cantonment-board-anr-vs-m-p-j-builders-anr-on-9-august-1996"},"modified":"2017-01-22T09:40:30","modified_gmt":"2017-01-22T04:10:30","slug":"pune-cantonment-board-anr-vs-m-p-j-builders-anr-on-9-august-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pune-cantonment-board-anr-vs-m-p-j-builders-anr-on-9-august-1996","title":{"rendered":"Pune Cantonment Board & Anr vs M.P.J. Builders & Anr on 9 August, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Pune Cantonment Board & Anr vs M.P.J. Builders & Anr on 9 August, 1996<\/div>\n
Equivalent citations: JT 1996 (7), 123\t 1996 SCALE (5)713<\/div>\n
Author: J S Verma<\/div>\n
Bench: Verma, Jagdish Saran (J)<\/div>\n
           PETITIONER:\nPUNE CANTONMENT BOARD & ANR.\n\n\tVs.\n\nRESPONDENT:\nM.P.J. BUILDERS & ANR.\n\nDATE OF JUDGMENT:\t09\/08\/1996\n\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nVENKATASWAMI K. (J)\n\nCITATION:\n JT 1996 (7)   123\t  1996 SCALE  (5)713\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\n     J.S. VERMA, J.\n<\/p>\n
     The dispute  relates to  the building sanction of House
\nNo.2, Sholapur Bazar Road, Pune, which falls within the area
\nof Pune\t Cantonment governed  by the  Cantonments Act,\t1924
\n(hereinafter referred to as ‘the act)
\n     The respondent  no.1 was  granted a  building  sanction
\nunder Section  181 of  the Act\ton 2.7.1981  effective\tfrom
\n6.7.1981.  The\t building  was\t intended  to  be  used\t for
\ncommercial residential\tpurposes, it was to be an RCC framed
\nstructure and  to consist  of ground  and five upper stories
\n(i.e. Stilt  + six  upper stories);  the nature\t of soil was
\n‘hard rock’;  the construction\twork  was  to  be  commenced
\nwithin one  year of  the sanction  i.e. before 6.7.1982; and
\nwas to\tbe completed  within 12\t months\t from  the  date  of
\ncommencement of\t the work. The building bye-laws existing at
\nthe time  of the  sanction did\tnot contain any restrictions
\nwith regard  to the  Floor Area\t Ratio (FAR)  or  number  of
\nfloors\tor  height  of\tthe  building.\tBy  a  letter  dated
\n3.7.1982, barely three days before expiry of the permissible
\nperiod for  commencement of  the work,\ta letter was sent by
\nthe  respondent\t No.  1\t stating  that\tthe  work  had\tbeen
\ncommenced on  that day.\t For the  purposes of this case, the
\nappellants did\tnot dispute  this claim\t of  the  respondent
\nno.1. According\t to the\t conditions of the building sanction
\nimposed\t under\t the  relevant\t statutory  provisions,\t the
\nconstruction of\t the building  had to be completed within 12
\ncalendar months\t from the  date of  commencement of the work
\ni.e. upto  3.7.1983. Admittedly,  the  construction  of\t the
\nbuilding was  neither completed\t nor was  extension of\ttime
\nsought within  that period.  The respondent  No. 1 claims to
\nhave made  an application  for extension of time to complete
\nthe construction  on 24.9.1983,\t after expiry  of  the\ttime
\nallowed. For the purposes of this case the appellants do not
\ndispute even  this claim.  The contents\t of that application
\nalleged to  have been  made by\tthe respondent\tno.1, are as
\nunder :\n<\/p>\n
     “MRJ: 9\/86\/736\t      24.9.1983
\n     The Executive Officers,
\n     Cantonment Board,
\n     Pune
\n     Sub: Extension of time.\n<\/p>\n
     Ref:  Your\t  sanction  No.\t 2\/SH\/B3
\n     dated 6.7.81,  for our  project  at
\n     No. 2, Sholapur Bazar road.\n<\/p>\n
     Sir,
\n     We have  commenced the  above  work
\n     with effect  from 3.7.82  and  your
\n     office  was  intimated  accordingly
\n     vide our  letter  No.  MPJ:MK\/7\/82,
\n     dated 3.7.1982.\n<\/p>\n
     It was not possible to complete the
\n     works within a span of one year due
\n     to the various following reasons:\n<\/p>\n
     1.Hard  rock   is\tmet   with   for
\n     basement foundation  which requires
\n     chiselling.\n<\/p>\n
     2.Non-availability\t  of\tbuilding
\n     materials.\n<\/p>\n
     3.Due to  change in  the strata now
\n     met  with,\t  structural   detailing
\n     requires some changes.\n<\/p>\n
     4.Due     to      various\t   other\n     difficulties.\n     We,  therefore,   request\tyou   to\n     kindly grant  us  an  extension  of\n     time for  a further  period  of  24\n     months and oblige.\n     Yours faithfully,\n     for MPJ Builders.\n     Sd\/-\n     (Ramesh Kumar More)\n     Partner.\"\n<\/pre>\n
     On 24.5.1984,  an\tengineer  of  the  Cantonment  Board
\ninspected the  site and\t submitted a report that no erection
\nwork of the building had been commenced till then; the owner
\nhad not\t made any  application for extension of time and the
\nsanction  had\tlapsed.\t The   making  of   this  report  is
\nundisputed. Thereafter, on 9.9.1985, an application, said to
\nbe the\tsecond application for extension of time was made by
\nthe respondent no.1. That application is as under :\n<\/p>\n
\t   “BY REGISTERED A.D
\n     HPJ\\RRH\\9\\85\\106\t  Sept. 9th 1985
\n     Executive Officer,
\n     Pune Cantonment Boards
\n     PUNE 411 OO1
\n     Ref. : (a) Your sanction No.2\/SH\/B-
\n     3 of  6\/7\/1981 for\t our project  at
\n     No.2 Sholapur Bazar road.\n<\/p><\/blockquote>\n
     (b)Our letter  No . HPJ\/MK\/7\/82\/343
\n     of 3.7.1982 regarding intimation of
\n     commencement.\n<\/p><\/blockquote>\n
     (c)Our letter No.MPJ\/9\/83\/736 of
\n     Sir,
\n     Due to  various unforeseen\t reasons
\n     and  difficulties,\t we  could  make
\n     substantial progress  with the work
\n     at our  site at  2\t Sholapur  Bazar
\n     Road.\n<\/p><\/blockquote>\n
     We request\t you to grant us further
\n     extension of 18 months and oblige.
\n     We assure\tyou that we will try our
\n     best  to\tcomplete  the\tbuilding
\n     within this extended period.
\n     Thanking you,
\n     For MPJ Builders,
\n     (Ramesh Kumar More)
\n     Partner.”<\/p><\/blockquote>\n
     On that  application,  a  report  dated  3.10.1985\t was
\nsubmitted by  an Officer  of the  Cantonment Board. Relevant
\npart of that report is as under :\n<\/p>\n
     “The  party  has  not  started  the
\n     construction  from\t  the  date   of
\n     sanction\tand    not   taken   any
\n     extension\t of   time   limit   for
\n     completion\t of   work   from   this
\n     office.\n<\/p><\/blockquote>\n
     On site  inspection,  it  is  found
\n     that the owner of this property had
\n     started excavation work. Which work
\n     is in progress.\n<\/p><\/blockquote>\n
     Submitted to your order’s pl.
\n\t\t    Sd\/-\n<\/p><\/blockquote>\n
\t\t    3.10.85″<\/p><\/blockquote>\n
     The Cantonment  Executive Officer, exercising the power
\nof the\tBoard, granted extension of time for a period of one
\nyear from the date of that order dated 2.5.1986 as under:\n<\/p>\n
\t      “02 May 1986
\n     From
\n     The Cantonment  Executive\tOfficer,
\n     Poona Cantonment Boards Poona.
\n     To
\n     Shri Ramesh  Kumar\t More,\tPartner,
\n     C\/o MPJ  Builders,\t Poona\tBottling
\n     Co.Ltd., 4101\/1, Bombay Poona Road,
\n     Dapodi, PUNE 411 012.\n<\/p><\/blockquote>\n
     ———————————–
\n     Subject :\tGrant  of  Extension  of
\n     time   for\t  completion   of   work
\n     H.No.2, sholapur Bazar, Pune Cantt.\n<\/p><\/blockquote>\n
     Reference\t :    Your   application\n     dt.09.9.1985\n     Dear Sir,\n<\/pre>\n
     Extension of time for completion of
\n     work for  a period\t of one\t year is
\n     hereby granted.\n<\/p><\/blockquote>\n
     Yours faithfully,
\n     Sd\/-\n<\/p><\/blockquote>\n
     CANTT. EXECUTIVE OFFICER.”<\/p><\/blockquote>\n
     Prior  to\tthe  grant  of\textension  of  time  by\t the
\nCantonment  Executive\tOfficer\t on  2.5.1986  or  even\t the
\n8application for  extension of\ttime dated 9.9.1985, certain
\nchanges had  been made\tin the\tbuilding  bye-laws  imposing
\nadditional restrictions.  All subsequent  building sanctions
\nhad to\tbe granted  thereafter subject\tto these  additional
\nrestrictions  also.  The  first\t set  of  restrictions\twere
\nimposed on  24.12.1982 under  which the\t maximum  number  of
\nstories which  could be\t constructed  were  reduced  to\t the
\nground floor  + two  upper stories i.e. in all three stories
\nincluding the  ground floor.  The  maximum  permissible\t FAR
\ncommonly known\tas FAR\twas two\t and the maximum permissible
\nbuilt up  area became 1\/3rd. These restrictions were imposed
\nunder Section  181(2) of  the Act which later became Section
\n181-A, in  the public  interest\t to  regulate  the  building
\nactivities in  the cantonment  area. More  restrictions were
\nimposed on  26.3.1984 under  which the\tpermissible FAR\t was
\nreduced from  two to  one. It  is to  be remembered that the
\nreport dated  24.5.1984 of  the Cantonment  Engineer clearly
\nmentioned the  admitted fact  that no erection work had been
\ncommenced by  the respondents  till then.  The\tquestion  of
\nextension of  time to make the construction according to the
\ninitially  sanctioned\tplan  had  to  be  decided  in\tthis
\nbackground taking  into account the fact that no erection of
\nthe  building  had  commenced  till  both  sets\t of  further
\nrestrictions  had   been  imposed;   and  according  to\t the
\nadditional restrictions,  the kind  of building construction
\nsanctioned on  2.7.1981\t could\tnot  be\t permitted,  if\t the
\nquestion of sanction was to be considered afresh.\n<\/p>\n
     The  GOC-in-Chief\tin  exercise  of  his  powers  under
\nSection 52(1)(b)  of the Act suspended the CEO’s order dated
\n2.5.1986 by  an order dated 2.1.1987 and issued a show cause
\nnotice to  the Cantonment  Board as  well as  the respondent
\nno.1 to\t show cause  why the  suspension order\tbe not\tmade
\nabsolute. After\t hearing the  parties, the  GOC-in-Chief, by
\norder  dated  14.2.1987\t under\tSection\t 52(2)(c)  made\t the
\nsuspension order  absolute. It appears that a portion of the
\nbuilding had  been constructed\tby then\t and  therefore,  on
\n14.3.1987 the  GOC-in-Chief made the consequential order for
\nits demolition.\n<\/p>\n
     A writ  petition was  then filed  on 27.3.1987  in\t the
\nBombay High  Court by the respondents which has been allowed
\nand the\t orders made by the GOC-in-Chief dated 14.2.1987 and
\n14.3.1987 have\tbeen set  aside. The High Court granted some
\nfurther\t time  to  complete  construction  of  the  building
\naccording to the initially sanctioned plan. Aggrieved by the
\nHigh Court’s  order, the  Pune Cantonment Board and the GOC-
\nin-Chief have preferred this appeal by special leave.\n<\/p>\n
     It was  common ground  before  us\tthat  the  stage  of
\nconstruction till  now is : the basement, a ground floor and
\nthe first  floor have  been constructed; the ground floor is
\nof an  extra height so as to accommodate  mezzanine although
\nthe mezzanine  floor has  not yet  been cast;  the mezzanine
\nfloor sanctioned  does not extend to the entire ground floor
\narea but only to a small portion thereof and the rest of the
\nground floor  has been\tleft  with  the\t extra\theight.\t The
\nconstruction made  so  far  is\talready\t in  excess  of\t the
\npermitted FAR  of one, being approximately 1.59. The learned
\nSolicitor  General,   appearing\t for   the  appellants,\t  on
\ninstructions, stated  that the\tappellants are\tprepared  to
\npermit the  respondent no 1 to retain the existing structure
\nand complete  the finishing  of the  existing structure with
\nthe mezzanine  according to  the initially  sanctioned\tPlan
\nsubject to  the condition  that no  additional slab would be
\nlaid anywhere  else.  This  offer  made\t on  behalf  of\t the
\nappellants at  the hearing  before us  is mentioned since to
\nthis extent the appellants consent to grant of relief to the
\nrespondents even if the appeal is allowed.\n<\/p>\n
     Mention may  also be made of another relevant fact. The
\nHigh Court  in the impugned judgment invoked the doctrine of
\nestoppel on  the ground that the builders had acted upon the
\norder of  extension and\t had  completed\t a  portion  of\t the
\nbuilding. Shri\tF.S.Nariman, learned  senior counsel for the
\nrespondents, frankly  conceded that he could not support the
\nHigh Court’s  order on\tthat ground. We need not, therefore,
\nconsider the applicability of the doctrine of estoppel which
\nis a clearly untenable plea in the present case.\n<\/p>\n
     At this  stages before we proceed to consider the rival
\ncontentions,  we   may\t notice\t  the\trelevant   statutory
\nprovisions:\n<\/p>\n
     “THE CANTONMENTS ACT, 1924
\n     52 Power  of Officer Commanding-in-
\n     Chief, the\t Command,  on  reference
\n     under Sec 51 or otherwise – (1) The
\n     Officer  Commanding-in-chief,   the
\n     Command, may at any time-\n<\/p><\/blockquote>\n
     (a)  xxx\t    xxx\t      xxx\n<\/p><\/blockquote>\n
     (b)direct the  suspension, for such
\n     period as\tmay  be\t stated\t in  the
\n     order of  action on any decision of
\n     a\tBoard,\tother  than  a\tdecision
\n     which  has\t been  referred\t to  him
\n     under sub-section\t(1) of\tSec. 51,
\n     and    thereafter\t   cancel    the
\n     suspension\t or   after  giving  the
\n     Board a  reasonable opportunity  of
\n     showing cause  why\t such  direction
\n     should not be made, direct that the
\n     decision shall  not be carried into
\n     effect, or that it shall be carried
\n     into effect with such modifications
\n     as he may specify.\n<\/p><\/blockquote>\n
     xxx       xxx\t  xxx
\n     180-A.  Powers   of   Board   under
\n     certain  sections\t exercisable  by
\n     Executive\tOfficer.-   The\t powers,
\n     duties and\t functions of  the Board
\n     under Sec.\t 181, sub-section (1) of
\n     Sec. 182,\tSec. 183Sec.  183-A  and
\n     Sec. 185  (excluding the proviso to
\n     sub-section (1)  and the proviso to
\n     sub-section (2) of the saidSec. 185
\n     shall be exercised or discharged in
\n     a\tcivil\tarea  by  the  Executive
\n     Officer)\n<\/p><\/blockquote>\n
     181. Power\t refuse –  (1) The Board
\n     may either\t refuse to  sanction the
\n     erection  or  re-erection,\t as  the
\n     case may  be, of  the building,  or
\n     may sanction  it either  absolutely
\n     or subject to such directions as it
\n     thinks fit\t to make  in writing  in
\n     respect  of   all\tor  any\t of  the
\n     following matters, namely :\n<\/p><\/blockquote>\n
      xxx\t xxx\t       xxx
\n     and  the  person  erecting\t or  re-
\n     erecting the  building  shall  obey
\n     all  such\t written  directions  in
\n     every particular.\n<\/p><\/blockquote>\n
     (2)  The\tBoard  may   refuse   to
\n     sanction  the   erection\tor   re-
\n     erection of  any  building\t on  any
\n     grounds sufficient\t in the\t opinion
\n     of\t  the\t Board\t affecting   the
\n     particular building
\n     Provided  that   the  Board   shall
\n     refuse  to\t  accord  sanction   the
\n     erection  or   re-erection\t of  any
\n     building if  such erection\t or  re-
\n     erection is  not in conformity with
\n     any general scheme sanctioned under
\n     Sec.181-A.\n<\/p><\/blockquote>\n
      xxx\t   xxx\t       xxx
\n     (5) If the Board decides to refuse-
\n     to sanction  the  erection\t or  re-
\n     erection of  the building, it shall
\n     communicate in  writing the reasons
\n     for such  refusal to  the person by
\n     whom notice was given.\n<\/p><\/blockquote>\n
      xxx\t xxx\t\t   xxx
\n     181-4. Power  to  sanction\t general
\n     scheme  for   prevention  of  over-
\n     crowding,\tetc.   –   The\t Officer
\n     Commanding-in-Chief the Command may
\n     sanction  a   general  scheme   for
\n     erection\t or    re-erection    of
\n     buildings within such limits as may
\n     be specified  in the  sanction  for
\n     the prevention  of over crowding or
\n     for purpose  of sanitation,  or  in
\n     the interest  of  persons\tresiding
\n     within  those  limits  or\tfor  any
\n     other   purpose,\t and   may,   in
\n     pursuance of  such\t scheme,  impose
\n     restrictions on the erection or re-
\n     erection of  buildings within those
\n     limits :\n<\/p><\/blockquote>\n
     Provided that  no such scheme shall
\n     be\t sanctioned   by   the\t officer
\n     commanding-in-chief,  the\tcommand,
\n     unless  an\t  opportunity  has  been
\n     given by  a  public  notice  to  be
\n     published locally\tby the Executive
\n     Officer requiring\tpersons affected
\n     or likely\tto be  affected\t by  the
\n     proposed  scheme,\t to  file  their
\n     objections or  suggestions\t in  the
\n     manner  specified\tin  the\t notice,
\n     within a  period of fifteen days of
\n     the publication of such notice, and
\n     after considering\tsuch  objections
\n     and suggestions,  if any,\treceived
\n     by the Executive Officer within the
\n     said period.\n<\/p><\/blockquote>\n
     xxx\t  xxx\t\t   xxx\n<\/p><\/blockquote>\n
     183.  Lapse  of  sanction\t–  Every
\n     sanction for  the erection\t or  re-
\n     erection of  a  building  given  or
\n     deemed to\thave been  given by  the
\n     Board  as\t herein-before\tprovided
\n     shall be  available  for  one  year
\n     from the date on which it is given,
\n     and, if  the building so sanctioned
\n     is not  begun by the person who has
\n     obtained the  sanction or\tsome one
\n     lawfully claiming\tunder him within
\n     that   period,    it   shall    not
\n     thereafter\t be   begun  unless  the
\n     Board    on     application    made
\n     therefore, has  allowedan extension
\n     of that period.\n<\/p><\/blockquote>\n
     183-A.  Period  for  completion  of
\n     building -A  Board when sanctioning
\n     the erection  or re-erection,  of a
\n     building as  herein-before provided
\n     shall specify  a reasonable  period
\n     after the work has commenced within
\n     which the\terection or  re-erection
\n     is to  be completed,  and,\t if  the
\n     erection  or   re-erection\t is  not
\n     completed\twithin\t the  period  so
\n     fixed, it\tshall not  be  continued
\n     thereafter without\t fresh\tsanction
\n     obtained  in   the\t manner\t herein-
\n     before provided,  unless the  Board
\n     on application  made  therefor  has
\n     allowed an extension of that period
\n     :\n<\/p><\/blockquote>\n
     Provided that  not\t more  than  two
\n     such extensions shall be allowed by
\n     the Board in any case.”<\/p><\/blockquote>\n
     The learned  Solicitor General  appearing on  behalf of
\nthe appellants advanced several arguments. He submitted that
\nno reasons  were given\tby the\tCantonment Executive Officer
\nfor extension  of time,\t on these facts, to justify grant of
\nthe extension. The relevant facts for this purpose were that
\nthe sanction  had expired  on 3.7.1983\teven  prior  to\t the
\nmaking of  the alleged\tfirst application  for extension  of
\ntime dated  24.9.1983, assuming\t that  the  application\t was
\nmade, no  construction of  the building\t had been  commenced
\nwithin the  time ailowed  or even  till 3.10.1985 as evident
\nfrom the  inspection note  of that date and much before that
\ndate additional\t restrictions had been imposed on 26.12.1982
\nand 26.3.1984  by amendments  made in  the building bye-laws
\nwhich did  not Permit  such a construction. It was contended
\nthat these  changed circumstances were of great significance
\nbut they  were not  considered by  the CEO and no reason was
\ngiven for  the extension  of time  granted  by\tthe  CEO  on
\n2.5.1986. The  learned Solicitor General also submitted that
\nthe only  ground mentioned in the application dated 9.9.1985
\nmade by\t the  respondent  no.1\tdid  not  justify  grant  of
\nextension of  time to make any construction in breach of the
\nrestrictions imposed  meanwhile in  1982 and  1984  when  no
\nconstruction of\t the building  had been\t commenced even till
\n3.10.1985 and  the sanction  had already lapsed on 3.7.1983.
\nIt was\turged that the exercise of power by the GOC-in-Chief
\nunder Section  52 to set aside the order made by the CEO was
\nvalid  for  the\t reasons  given\t by  him.  We  have  already
\nmentioned the offer made by the appellants to permit
\nretention of the existing structure even if the appeal
\nsucceeds.\n<\/p>\n
     In reply,\tShri F.S.Nariman, learned senior counsel for
\nthe respondents,  submitted that  the reasons  given in\t the
\norder of the GOC-in-Chief setting aside the order of the CEO
\nare  in\t  applicable   because\t the   additional   building
\nrestrictions imposed  in 1982  and 1984\t did not  apply to a
\nbuilding sanction  granted prior  to the imposition of those
\nadditional restrictions.  Shri Nariman\theavily relied\ton a
\nfoot-note dated 4.4.1984 clarifying this position at the end
\nof the\trelevant public\t notice quoted\tin the\tdecision  in
\nUsman Gani J.Khatri &. Ors. etc. vs. Cantonment Board & Ors.
\n, 1992 (3) SCC 455 at 464 as under :\n<\/p>\n
     “Note  –\tIt  is\t clarified   for
\n     information of  the general  public
\n     that  the\t above\torders\twill  be
\n     effective from the date the GOC-in-
\n     Chief, HQSC,  has signed  the above
\n     order  i.e.March  26,  1984.  These
\n     restrictions will apply only to the
\n     buildings\twhose\tplans  will   be
\n     considered\/  passed   on  or  after
\n     March  26,\t  1984.\t Building  plans
\n     passed prior  to March 26,1984 will
\n     be governed  by  the  FSI\texisting
\n     during that period.\n<\/p><\/blockquote>\n
     Dated April 4, 1984.\n<\/p><\/blockquote>\n
     Sd\/-  S.P. Nijhawan
\n     Cantonment Executive Officer, Pune”<\/p><\/blockquote>\n
     It is  not necsssary  to quote  in extenso\t the  public
\nnotices imposing  the additional  restrictions on 24.12.1982
\nand 26.3.1984,\twhich have  been summarised  earlier and are
\nnot disputed.  The other submission of Shri Nariman was that
\neven  though   the  delay  in  making  the  application\t for
\nextension of time after expiry of the period of sanction and
\nimposition   of\t  additional   restrictions   are   relevant
\ncircumstances to  be considered\t for granting  extension  of
\ntime yet  its non-  consideration is  not  a  jurisdictional
\ndefect to  denude the CEO of the power to grant extension of
\ntime, Shri  Nariman submitted  that  the  initial-  building
\nsanction granted  to the  respondent no.1 being prior to the
\nimposition  of\t the  additional   restrictions\t which\twere
\nprospective in\toperation the  further extension  of time to
\ncomplete the  earlier sanctioned  building would be governed
\nonly by\t the building bye-laws existing at the time of grant
\nof the initial sanction. Shri Nariman, therefore, argued for
\ndismissal of the appeal for these reasons.\n<\/p>\n
     Section  180-A   empowers\tthe   Executive\t Officer  to
\nexercise certain  powers, duties  and functions of the Board
\nwhich include  the Board’s power to sanction or to refuse to
\nsanction the  erection or  re-erection of the building under
\nSection 181,  and to  allow the\t extension of the period for
\ncompletion of the building. Extension of time granted by the
\nCEO in\tthe present  case was in exercise of this power. The
\nonly question  in the  present case pertains to the validity
\nof the\textension of  the period by the order dated 2.6.1985
\nmade by the CEO in exercise of the power under section 183-A
\n     Section 183  prescribes the period of one year from the
\ndate on\t which a  building sanction  has been given to begin
\nthe building  so  sanctioned,  failing\twhich  the  sanction
\nlapses unless the Board, on an application made therefor has
\nallowed an  extension of  that period.\tIn the present case,
\nthe compliance\tof this\t provision is not disputed since the
\nclaim of  respondent no. 1 by a letter dated 3.7.1982 is not
\ncontested. the significant provision is Section 183-A.\n<\/p>\n
     Section 183-A requires the period for completion of the
\nbuilding to be specified when the sanction is granted. It is
\nto be  a resonable  period after  the work has commenced. In
\nthe present  case the  period so specified was one year. The
\nfixation of  the period of one year as the reasonable period
\nfor completion\tof the\tbuilding after\tcommencement of\t the
\nwork was  not challenged. Thus, the work having commenced on
\n3.7.1982 as  claimed by\t the respondent no.1, the period for
\nits  completion\t according  to\tSection\t 183-A,\t expired  on
\n3.7.1983.  Section   183-A  further  provides  that  if\t the
\nerection of  the building is not completed within the period
\nso fixed, it shall not be continued thereafter without fresh
\nsanction obtained  in the manner herein-before provided i.e.
\nSection\t 181,  unless  the  Board  on  an  application\tmade
\ntherefor has  allowed  an  extension  of  that\tperiod.\t The
\nproviso then limits the power of the Board to allow not more
\nthan two such extensions.\n<\/p>\n
     In short,\tSection 183-A provides for the specification
\nof the\tperiod for  completion\tof  the\t building  when\t the
\nsanction  is   granted\tand   on  expiry   of  that   period
\nconstruction of\t the building  cannot be continued without a
\nfresh sanction,\t unless an extension of that period has been
\nallowed on  an application  made  therefor.  It\t means\tthat
\nunless the  Board has  allowed an  extension of\t the  period
\nspecified for  complotion of  the building on an application
\nmade therefor,\tthe sanction  lapses and the construction of
\nthe building  shall not\t be continued  thereafter without  a
\nfresh sanction.\t Section 183-A speaks of a fresh sanction on
\nexpiry of the period fixed for completion of the building as
\nwell as\t extension of  that period  on an  application\tmade
\ntherefor. Meaning  must, therefore,  be given  to  both\t the
\nprovisions, namely,  fresh sanction  and extension  of\tthat
\nperiod; and the two powers must be construed to be available
\nin two\tdifferent situations.  This is\tnecessary to exclude
\nany conflict  and arbitrariness\t in exercise  of the  choice
\nbetween the two powers in similar cases. It appears that the
\ntwo powers  are meant  to  be  exercised  in  two  different
\nsituations and the provision does not leave it to the option
\nof the\tauthority to deside which of the two powers is to be
\nexercised in  the case.\t This  means  that  unless  time  is
\nextended on  an application  made  before  its\texpiry,\t the
\nsanction lapses\t and the  erection of the building cannot be
\ncontinued thereafter without a fresh sanction.\n<\/p>\n
     Effect of\tthe proviso  in Section\t 183-A must  also be
\nkept in\t mind. Extension  of  time  allowed  has  to  be  in
\ncontinuity and\tit cannot  exceed the period fixed initially
\nfor  completion\t of  the  building.  The  limit\t is  of\t two
\nextensions. In\tthe present  case, the\tperiod fixed was one
\nyear and,  therefore, the  permissible two  extensions could
\nnot exceed two years because of the proviso. Thus, the total
\nextension of time could not be beyond two year from 3.7.1983
\n(upto which  date time was allowed for completion). In other
\nwords, time extended under Sec.183-A because of the proviso,
\nin the\tpresent case  could not be beyond 3.7.1983 since the
\nextension had  to be  in continuity. In the pesent case that
\napplication made  much later  on 9.9.1985 had to be rejected
\nby the\tCEO  for  this\treason\talone  and  the\t only  power
\navailable on  that  date  was  of  a  fresh  sanction.\tThis
\nobviously could\t not be\t granted in  view of  the additional
\nrestrictions imposed  meanwhile. Thus,\textension of time by
\nthe order  dated 2.5.1986  was clearly\twithout jurisdiction
\nfor this reason alone.\n<\/p>\n
     Even assuming  the power to allow extension of time was
\navailable, the\tfacts indicate that it could not be granted.
\nAs earlier  stated, the\t period fixed  for completion of the
\nbuilding under\tSection 183-A  was one year which expired on
\n3.7.1983. Admittedly,  no application  for extension of time
\nwas made  by the  respondent no.1  before the expiry of that
\nperiod and  such an application is alleged to have been made
\nonly  on   24.9.1983.  No  extension  was  granted  on\tthat
\napplication since  the Board  does not\tadmit receiving\t the
\nsame.  There   was  total  silence  till  almost  two  years
\nthereafter  and\t  then\ton   9.9.1985  the  application\t for
\nextension of  time was\tmade by respondent no. 1. The period
\nfixed for  completion of  the building when the sanction was
\ngranted had  expired more than two years earlier. The report
\nof the\tofficer of  the\t Cantonment  Board  dated  3.10.1985
\nclearly showed that the construction of the building had not
\ncommenced till\tthen  and  the\tonly  thing  done  was\tsome
\nexcavation work.  In spite  of this  report, the CEO granted
\nextension of  time for\tcompletion of  work  for  a  further
\nperiod of  one year  without assigning\tany reason  a in his
\norder  dated  2.5.1986\tmade  with  reference  only  to\t the
\napplication dated 9.9.1985.\n<\/p>\n
     It is  obvious that the exercise of the statutory power
\nof grant  of extension\tof time\t under Section\t183-A is not
\nmechanical or automatic and required a decision for be taken
\non application\tof mind with reference to the relevant facts
\nand  circumstances   of\t the   case.  The  CEO\tshould\thave
\nconsidered all\tthe relevant  facts and circumstances of the
\npresent\t case.\tThe  CEO  should  have\tconsidered  all\t the
\nrelevant facts\tand circumstances of the present case before
\nhe came\t to the conclusion that extension of that period was
\ncalled\tfor   particularly,  when  no  construction  of\t the
\nbuilding  had\tbeen  commenced\t till  then  and  additional
\nrestrictions had  been imposed\tmeanwhile according to which
\nsuch a\tbuilding sanction could not be granted if the matter
\nwere  to  be  considered  for  grant  of  a  fresh  sanction
\ncontemplated under  Section 183-A. Shri Nariman rightly does
\nnot dispute that even if the additional restrictions were to
\napply  prospectively  to  the  grant  of  a  fresh  sanction
\nthereafter,  this   was\t a   relevant  circumstance   to  be
\nconsidered while  deciding to grant extension of that period
\neven in\t this  case.  The  total  non-consideration  of\t any
\nrelevant fact by the CEO while granting extension of time by
\norder dated 2.5.1986 and the absence of any reason for grant
\nof the\tsanction is  alone sufficient  to vitiate  the CEO’s
\norder dated  2.5.1986. This conclusion is reached even if it
\nis assumed  that extension  of time  could be  granted on an
\napplication made  after expiry\tof the\tperiod\tallowed\t for
\ncompletion of  the  construction  and  the  embargo  in\t the
\nproviso is overlooked.\n<\/p>\n
     The validity  of the GOC-in-Chief’s order setting aside
\nthe order  of the  CEO granting\t extension of time has to be
\ndecided on  the above  conclusion reached by us. The GOC-in-
\nChief’s\t order\t refers,  inter\t  alia,\t to  the  additional
\nrestrictions imposed in the meantime as relevant factors for
\nconsideration. It  is rightly  not disputed  that this was a
\nrelevant, factor  to consider while deciding the question of
\nextending the  period. In  substance. the  GOC-in-Chief took
\nthe view that permitting the construction of such a building
\nwhich had  not till  then begun would flagrantly violate the
\nbuilding restrictions  which had  come into  force by  then.
\nThis reason  cannot be said to be arbitrary since it relates
\nto a  relevant fact  for the  grant of\textension of time. A
\nperusal\t of   the  application\t dated\t9.9.1985   made\t the
\nrespondent no.1\t indicates that\t no  fact  had\tbeen  stated
\ntherein to  make out  any ground for grant extension of time
\nand to\texplain the  inability to  even commence erection of
\nthe building  within the  time allowed.\t Even a reference to
\nthe earlier  application dated\t24.9.1983, assuming  it\t was
\nfiled, shows  that nothing significant was mentioned therein
\nexcept\tsome   vague,  general\tdifficulties  of  which\t the
\nrespondent no.1\t must have been aware even while seeking the
\ninitial sanction.  Thus neither\t any facts or cogent grounds
\nfor extension  of time were mentioned in the application for
\nextension of  time nor was any reason given by the CEO while
\ngranting extension  of time by order dated 2.5.1986. This is
\nsufficient to  indicate that  the grant of extension of time
\nby the\tCEO was an arbitrary exercise of tower under Section
\n183-A, even  if the  power was\tavailable. The\tGOC-in-Chief
\nwas,  therefore,  right\t in  setting  aside  that  order  in
\nexercise of his power under Section 52 of the Act.\n<\/p>\n
     In the  above view, the High Court was not justified in
\ninterfering with  the orders  made by  the  GOC-in-Chief  in
\nexercise of  his power under Section 52 of the Act. Exercise
\nof the\tpower under  Article 226  of the Constitution by the
\nHigh Court  in favour of the respondents in such a case was,
\ntherefore, clearly  unwarranted. The High Court’s order has,
\ntherefore, to be set aside.\n<\/p>\n
     Consequently,  the\t appeal\t is  allowed;  the  impugned
\njudgment of the High Court is set aside. However, in view of
\nthe offer  made\t on  behalf  of\t the  appellants  to  permit
\nretention of  the existing structure in the manner indicated
\nabove and  to permit  finishing of the existing structure in
\nthe manner  stated, we\tpermit retention  of the  same.\t The
\norders of  the GOC-in-Chief  would therefore, stand modified
\nto this\t extent only.  The respondents\tto pay Rs.5,000\/- as
\ncosts to the appellants.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Pune Cantonment Board & Anr vs M.P.J. Builders & Anr on 9 August, 1996 Equivalent citations: JT 1996 (7), 123 1996 SCALE (5)713 Author: J S Verma Bench: Verma, Jagdish Saran (J) PETITIONER: PUNE CANTONMENT BOARD & ANR. Vs. RESPONDENT: M.P.J. BUILDERS & ANR. DATE OF JUDGMENT: 09\/08\/1996 BENCH: VERMA, JAGDISH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-7405","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPune Cantonment Board & Anr vs M.P.J. 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