Allowed

M.Mohan Krishna, v. The Secunderabad Cantonment Board

Telangana HC16 Nov 2011WP/25856/2011

Case brief

AI extract

What is this about?

Writ petitions challenging the Secunderabad Cantonment Board's delay in granting building sanction due to pending clearance from Defence Estates. The Court directed the Board to decide applications within six weeks if plots abut public roads, to collect betterment charges, and ensure compliance with byelaws.

What did the court decide?

Directed the Board to dispose of building applications within six weeks, collect betterment charges, and ensure compliance with byelaws.

M.Mohan Krishna, Vs The Secunderabad Cantonment Board — Property and Title | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

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W.P.Nos.25856 and 25500 OF 2011

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COMMON ORDER:

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These two writ petitions can be conveniently dealt with and disposed of by this common order.

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The complaint in both these cases is directed against the action of the respondent Secunderabad Cantonment Board (henceforth referred to as ‘the Board’) in not entertaining and sanctioning or approving the proposal submitted for construction of buildings by the petitioners in, what they claim to be, open plots belonging to them in Trimulgherry Village of the Secunderabad Cantonment area. There is no serious controversy centering around the basic fact situation. The petitioners have submitted applications seeking sanction of building permissions over their respective plots of land, which are more than 750 square meters in area each. Though the respondent Board, in principle, was willing to consider such applications, but nonetheless, it sought for an

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opinion from the Directorate of Defence Estates, Southern Command, Pune, as to whether the building applications can be taken up for consideration and approval or not. In fact, necessary resolution in this regard has been passed at the meeting of the Board that took place on

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27-04-2010 at 11-00 hours. Notwithstanding 1 ½ years time elapsing, no such opinion has been forwarded by the Directorate of Defence Estates, Southern Command, Pune, and since, the said opinion was kept pending, the Board is not taking further action on the applications of the petitioners. Hence, they filed the present writ petitions.

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The Chief Executive Officer of the Board filed a detailed counter affidavit in the matter. It is stated that the plots of land, over which the buildings are sought to be constructed by the applicants, are not forming part of any approved layouts. Therefore, the Board had doubted as to whether a building permission can be accorded on a plot of land, which is not forming part of an approved layout. Hence, it sought for a clarification from the Directorate of Defence Estates, Southern Command, Pune, under whose overall administrative supervision

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the Defence Estates are administered. It is, further, brought to my notice by the learned Standing Counsel for the Board that few reminders were also sent up to the Directorate of Defence Estates, Southern Command, Pune, for furnishing their opinion in the matter, but however, the same is still awaited. Hence, the Board has not yet taken up for consideration the applications submitted for construction of buildings by the applicants. Heard Sri Vedula Srinivas and Sri V.V.N. Narayana Rao for the petitioners and Sri Y.V. Ravi Prasad, learned Standing Counsel for the respondent Board.

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Exercising the power available to it under Sections 282 and 283 of the Cantonment Act, 1924, the Board framed the Secunderabad Cantonment (Laying of Streets and Regulation and Prohibition of Erection of Building) Byelaws, 1974, after securing prior approval from the Central Government in accordance with Section 284 of the said Act. By virtue of Section 300 of the Cantonment Act, 2006, all such byelaws and rules framed in terms of the Cantonment Act, 1924, are saved, so long as they are not inconsistent with the provisions of the latter Act. Since, no such inconsistency was pointed, I proceed on the basis that the

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Byelaws are still holding the field.

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Byelaw - 3 thereof dealt with the manner of making applications for sanction of a layout. These byelaws have provided for; minimum size of each plot, width of the streets, marking of building lines, the open spaces to be left around the building and the provision of access to the existing streets, etcetera. Relevant for our consideration would be Byelaw - 14, which clearly specifies that no building notice shall be entertained until a layout is approved by the Board and streets, drains and water supply lines are laid to the satisfaction of the Executive Officer at the cost of the applicant and handed over to the Board by executing a gift deed in that regard, for further maintenance. However, it was made clear in the latter portion of the same byelaw that the Board may sanction building applications in respect of such plots in a layout, which are abutting any of the existing main streets of the Board or Public Works Department or Military Engineering Services, if all other amenities are available. This latter portion is capable of being understood both ways. As contended by Sri Vedula Srinivas, if an open plot is abutting an existing public road,

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either laid by the Board or belonging to the Public Works Department or laid by the Military Engineering Services, the Board has got the discretion to take up for sanction a building application provided the same is inconformity with the other requirements of the building byelaws. At the same time, the Board may also seek for sanction of an approval in the form of sanction of layout, as contended by Sri Y.V. Ravi Prasad. However, Sri Vedula Srinivas would urge that if there is already an open plot of more than 750 square meters available abutting a public street in the Cantonment area, the respondent Board is entitled to collect the betterment charges thereon, which is normally done while approving any layout. For a plot of land, which is already abutting the public road, there will not be any further necessity to form a separate road for it to gain any further access. This contention, to my mind, appears to be more rational and realistic. If an open plot of land of more than 750 square meters is abutting any of the public roads, the question of formation of a separate road for the purpose of gaining access to it would not arise, inasmuch as, access is readily available. Hence, there is no necessity for a formal sanction of layout to

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such a plot. But, at the same time, the other requirements of maintaining open spaces around the building proposed to be constructed in accordance with the building byelaws have got to be maintained. However, by collecting the betterment charges, the other amenities, such as, provision for water, drainage, electricity or telephone connections, can be provided for by the Board. In this view of the matter, I feel that the action of the Board in keeping the applications of the petitioners for sanction of building permissions pending only on the ground that the clearance / opinion from the Directorate of Defence Estates, Southern Command, Pune, has not been forthcoming, is not a fair or reasonable action on its part. The Board is the competent authority. It has to take an independent decision on its own. There may not be anything wrong in it’s seeking an opinion from the Directorate of Defence Estates, but it cannot keep the building applications pending for consideration for months together on the ground that the said opinion has not been furnished by the Directorate of Defence Estates. As a public body, it has to ensure that the residents of its locality should not be unduly penalized by

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delaying consideration of their building applications, as the cost of construction keeps on escalating with each season. Therefore, prompt action has got to be taken by the respondent Board by dealing with the building applications. Enormous and inexplicable delay on its part in that regard cannot be appreciated. Therefore, I consider it appropriate to dispose of both the writ petitions with the direction that follows now.

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Let the Board take expeditious steps for dealing with the applications submitted by the petitioners for sanction of building permission, provided such applications are inconformity within all other respects with the building byelaws and layout byelaws and also provided they are abutting any existing public road in the Secunderabad Cantonment Area, and pass appropriate orders thereon within a maximum period of six weeks from the date of receipt of a copy of this order. It shall be open to the respondent Board to collect from the applicants the betterment charges prior to sanctioning the building permission, since, the plots of land, over which the constructions sought to be made, are not forming part of any approved layout.

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With this, both the writ petitions are

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disposed of, however, there shall be no order as to costs.

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Nooty Ramamohana Rao, J

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mrk

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16^th November 2011

M.Mohan Krishna, v. The Secunderabad Cantonment Board

Case brief

What is this about?

What did the court decide?

M.Mohan Krishna, v. The Secunderabad Cantonment Board

Case brief

What is this about?

What did the court decide?

What the court decided

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