- (1.) Since the controversy involved in both the aforesaid writ petitions relates to selfsame property, both the writ petitions are being decided by this common judgment and order.
(2.) In order to understand the controversy, first of all let us see the factual aspect of the matters, as submitted by the respective parties before this Court.
(3.) According to the petitioners, petitioner No. 1 is a trust, whereas petitioner Nos. 2 and 3 are lessees thereof. In the Cantonment Area of Agra, there was a bungalow bearing No. 104-A, M.G Road, which was purchased by predecessor of petitioner No. 1 by registered sale-deed dated 28th November, 1873 as a free hold property measuring 12 bighas. The area of land underneath and included in the said bungalow is comprised in General Land Register (in short called as "GLR') Survey No. 260 area 5.811 acres (private land), GLR Survey No. 260-A area 1.162 acres (Class B-3 land on old grant) and GLR Survey No. 260-B area 504 square feet (Class-C land). The petitioners gave a notice dated 18th January, 2008 under Section 235 of the Cantonments Act, 2006 (in short called the "Act, 2006') to the Cantonment Board, Agra (hereinafter in short called as the "Board') to erect a new building of proposed hotel and shops over the land of Bungalow No. 104-A(GLR Survey No. 260 area 5.811 acres). As per Section 238(3) of the Act, 2006 the Board vide its Resolution No. 296 dated 31st January, 2008 referred the said notice and plan to the Defence Estate Officer, Agra Cantonment, Agra for ascertaining whether there is any objection on the part of the Government to such proposed erection of the building. The Defence Estate Officer, after obtaining comments from local military authorities and confirming willingness of the petitioners to pay requisite charges for change of purpose, did not raise any objection to the erection of proposed hotel and shopping complex on the land of GLR Survey No. 260 and vide its letter dated 30th April, 2008 communicated its decision to the Chief Executive Officer of the Board with three conditions that: (i) no approach road will be allowed on Gwalior Road through GLR Survey No. 259; (ii) height of proposed building will be according to the prescribed limit as per bye law; and (iii) in case of change of purpose, charges will be paid by the petitioners. On such conditions, the plan of the petitioners was sanctioned by the Board vide its Resolution No. 27 dated 9th May, 2008. However, before issuing sanction to the petitioners, the Chief Executive Officer again sought confirmation regarding private nature of land from the Defence Estate Officer, who, in turn, by letter dated 12th May, 2008 confirmed that GLR Survey No. 260 area 5.811 acres (over which area only the proposed constructions were to be raised) is a private land. Ultimately sanctioned plan was released to the petitioners requiring them to deposit processing fee and water charges, which the petitioners duly deposited. The Chief Executive Officer by letter dated 21st May, 2008 directed the petitioners to communicate the date of commencement and completion of construction as per Section 242 of the Act, 2006. Later on, the General Officer Commanding-in-Chief, Central Command, who is final and competent authority under Section 56 of the Act, 2006 to take a call on the military point of view, also appraised the construction of hotel and shop with the only condition of limiting the access to the proposed complex only from M.G. Road and not through defence land. This was communicated to the petitioners by letter dated 14th October, 2008. Ultimately, having received confirmation from all quarters, the petitioners by letter dated 15th July, 2009 communicated the Chief Executive Officer that construction will commence by 5th August, 2009 and required water connection. Other formalities including no objection from the Fire Fighting Authority etc. were also completed by the petitioners.;