Kasliwal, J. - (1.) All the above Special Leave Petitions by builders in 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 concluded by an earlier decision of the Division Bench dated 15-4-1987. Thus, no reasons have been recorded in the impugned order and in order to decide the controversy before us learned Counsel referred to the decision of the High Court dated 15-4-1987.
(2.) 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 disposing of all 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 raised' before us. In SLP No. 647 of 1992 The original owners submitted an application for conversion of the old grant site into freehold sites vide letter dated 19-11-1980. The Cantonment Board Pune - the respondent No. 1 (hereinafter referred to as 'the Cantonment 'Board') on 2-12-1980 passed a resolution suggesting the set backs and recommended that the area admeasuring about 10633 sq. feet be allowed to be converted on the terms and conditions of payment fixed 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 resolution as under:- "The following formalities to be observed to be communicated when the plans to be returned to the applicant. The sanction be made effective only when the present right over the land is converted into freehold by the competent authority and conversion cost be decided by the Government is deposited by the applicant and subject to clearance from competent authority ULC Pune. Government be requested to allow the party to proceed with construction after taking likely amount of freehold to avoid delay. Copy of the plan be given to the applicant for procuring the cement." 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 shall be surrendered, that was because of the set back suggested to which the petitioner agreed. The petitioner by telegram dated 21-3-1983 addressed to the Ministry of Law Justice and Company Affairs referred to his personal discussion and requested for payment of conversion cost in instalments. According to the petitioner this request was made on the basis of the policy of the Government of India declared vide letter dated 18-6-1982. The petitioner tendered two demand drafts of Rs. 75,000/- and Rs. 40,641.80 ps. on 22-4-1983 being 1/5th 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 petitioner by letter dated 2nd May, 1983 addressed to the Director General DL and C, Government 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 why the case of the petitioner alone was singled out and why he refused to accept the part payment, in spite of the policy of the Government to accept the conversion charges in instalments. The petitioner further submitted in the aforesaid letter that in any event, and without prejudice to the rights and contentions as aforesaid and in spite 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 Cantonment Executive Officer by his letter dated 23rd December, 1983 received by the petitioner in the first week of January, 1984, informed that the Cantonment Board vide their resolution No. 50 dated 21-10-1983 had resolved to reject the building plans which were not in conformity with the new scheme of the building restrictions. Since the building plans submitted by the petitioner were not in conformity with the new scheme of building restrictions, the same were rejected and returned. It was also mentioned in the letter that the petitioner is advised to resubmit the building applications 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 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 resolution No. 50 dated 21-10-1983 clearly stated 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 such building applications not in conformity with the new scheme of the building restrictions be rejected. Aggrieved by the action of the respondents 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. The petitioner in the Writ Petition inter alia prayed that the petitioner was entitled to construct the building as per plans duly sanctioned 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 were operative and the condition imposed viz, of obtaining the conversion was irrelevant and of no consequence and not binding on the petitioner. It was also prayed that the resolution No. 50 dated 21-10-1983 be declared invalid and inoperative in law and that the new scheme of building restrictions imposed by the GOC-in-Chief, Southern Command were inoperative in law and invalid and in any case the said conditions do not affect the petitioner's building plans sanctioned by the respondent in April, 1981. It 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 instalments 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. 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 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 communicated when the plans are to be returned to the applicant. The sanction be made effective only when the present right 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 competent authority ULC, Pune." According to the petitioners the above resolution was not communicated 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 sanction conversion plans, the petitioners would not demand any compensation. 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 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 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 conversion 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 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 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 21-1-1983 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 they were starting building constructions. On 7-2-1984 notice given by the Cantonment Board to the petitioners that as no sanction had been communicated 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 Board on 8-2-1984. The Board in the meantime vide resolution No. 50 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 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 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, and constructions made on the land. S.L.P. No. 647 of 1992 In this case though intimation of sanction for conversion into freehold was given on 2-3-1983 but not a single pie has been paid till date towards conversion charges and no constructions have been made by the petitioners. S.L.P. No. 648 of 1992 In this case according to the Cantonment Board the property is held by the petitioners on lease in Form A/Cantonment Code of 1899, under Condition No. 2 of the lease. The Cantonment Board is empowered to 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 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 Cantonment Board on 2nd March, 1983 expressed their inability to pay the revised rent and premium and requested for instalments. The petitioner as 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 December, 1982 when the first scheme of building restriction came into force. 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 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 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. 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 construction has been made. S.L.P. 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 9-3-1984 but have not paid the remaining three instalments. Final instalment ought to have been paid by 1-3-1987. No constructions 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 paid on 3-12-1991. Though final instalment ought to have been paid on or before 1-11-1984.
(3.) 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 made from time to time during the period in question.;