Case Note & Summary
The petitioner, Lekha Ali Shaikh, owned a plot of land in Dehu Road Cantonment, Pune. In 2009, she constructed a 750 sq.ft structure without obtaining any prior permission from the Cantonment Board. In 2010, she applied for approval of repairs and additional construction, but the Board did not respond within one month. The petitioner claimed deemed sanction under Section 238(6) of the Cantonments Act, 2006 and proceeded to construct a larger 1500 sq.ft building. In June 2013, the Board rejected her application and ordered demolition. The petitioner appealed under Section 340 of the Act, but the appeal was dismissed on 12 January 2015. She then filed a writ petition challenging the order. The High Court found that the initial construction was illegal, and the petitioner had suppressed the fact that the Board had asked her to pay processing fees, which she failed to do. The court held that deemed sanction was not available because the petitioner did not comply with the procedural requirements and the construction was in a Red Zone where no construction is permitted. The petition was dismissed, and the demolition order was upheld.
Headnote
A) Cantonment Law - Unauthorised Construction - Deemed Sanction - Section 238(6) Cantonments Act, 2006 - The petitioner constructed a 750 sq.ft structure in 2009 without permission and later applied for repairs and additional construction. The Board did not respond within one month, but the petitioner failed to comply with the requirement of paying processing fees and did not send a follow-up communication as required under Section 238(6). The court held that deemed sanction cannot be claimed where the initial construction was illegal and the application was not validly pursued. (Paras 13-18)
B) Cantonment Law - Red Zone - Construction Prohibition - Works of Defence Act, 1903 - The property was located in a Red Zone where no construction is permitted. The petitioner's argument that the area was not Red Zone at the time of initial construction was rejected because the subsequent construction was also illegal and the area remains a Red Zone. The court held that no construction can be permitted in a Red Zone. (Paras 20-21)
C) Civil Procedure - Suppression of Material Facts - Discretionary Relief - The petitioner suppressed the fact that the Board had asked her to pay processing fees and that she failed to do so, which led to the application not being processed. The court held that suppression of material facts is a ground to dismiss the petition. (Paras 18-19)
Issue of Consideration
Whether the petitioner was entitled to deemed sanction under Section 238(6) of the Cantonments Act, 2006 for construction on a plot in a Red Zone, and whether the order of demolition was justified.
Final Decision
The High Court dismissed the writ petition, upholding the order dated 12 January 2015 and the demolition of the unauthorised construction. The court held that the petitioner was not entitled to deemed sanction, had suppressed material facts, and the construction was in a Red Zone where no construction is permitted.
Law Points
- Deemed sanction under Section 238(6) Cantonments Act
- 2006 requires valid notice and compliance with procedural requirements
- illegal construction cannot be regularised by subsequent application for repairs
- suppression of material facts disentitles petitioner to discretionary relief
- construction in Red Zone under Works of Defence Act
- 1903 cannot be permitted.
Case Details
2024 LawText (BOM) (09) 2721
WRIT PETITION NO. 12316 OF 2015
Ms Jyoti Chavan, with Namrata Pangam & Atharva Jagtap (for Petitioner); Mr Ashok B Tajane (for Respondent)
Lekha Ali Shaikh w/o Ali M Shaikh
Chief Executive Officer, Office of the Cantonment Board, Dehu Road, Pune
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Nature of Litigation
Writ petition challenging order of demolition of unauthorised construction and seeking quashing of order dated 12 January 2015.
Remedy Sought
Writ of mandamus to quash and set aside the order dated 12th January 2015 issued by the Chief Executive Officer of the Cantonment Board, Pune, and to prevent demolition of the petitioner's construction.
Filing Reason
The petitioner claimed deemed sanction under Section 238(6) of the Cantonments Act, 2006 for construction on her private land, but the Board rejected her application and ordered demolition.
Previous Decisions
The Chief Executive Officer of the Cantonment Board issued an order dated 12 January 2015 dismissing the petitioner's appeal under Section 340 of the Cantonments Act, 2006 and confirming the demolition order.
Issues
Whether the petitioner was entitled to deemed sanction under Section 238(6) of the Cantonments Act, 2006.
Whether the construction in a Red Zone under the Works of Defence Act, 1903 can be permitted.
Whether the petitioner suppressed material facts disentitling her to discretionary relief.
Submissions/Arguments
The petitioner argued that she had applied for approval of repairs and additional construction, and the Board's failure to respond within one month resulted in deemed sanction under Section 238(6) of the Cantonments Act, 2006.
The petitioner contended that the initial construction was before the area was declared a Red Zone, and thus the Board could not order demolition.
The respondent Board argued that the initial construction was illegal, the application was not validly pursued, and the construction was in a Red Zone where no construction is permitted.
Ratio Decidendi
Deemed sanction under Section 238(6) of the Cantonments Act, 2006 requires a valid notice and compliance with procedural requirements, including payment of processing fees. Where the initial construction is illegal and the applicant fails to pursue the application diligently, deemed sanction cannot be claimed. Suppression of material facts disentitles a petitioner to discretionary relief. Construction in a Red Zone under the Works of Defence Act, 1903 cannot be permitted.
Judgment Excerpts
The Petitioner could not have legalised the structure, which was illegal since its inception, by applying for sanctions for repairs and some additional reconstruction.
The Petitioner has completely suppressed this critical fact. As such, this fact is pertinent and significant. It shows that failing to pay the processing charges resulted in the sanction not being granted.
The building is located within the Red Zone under the Works of Defence Act 1903, as declared by the Collector of Pune.
Procedural History
The petitioner constructed a 750 sq.ft structure in 2009 without permission. In 2010, she applied for approval of repairs and additional construction. The Board did not respond within one month. The petitioner constructed a 1500 sq.ft building by January 2013. In June 2013, the Board rejected the application and ordered demolition. The petitioner appealed under Section 340 of the Cantonments Act, 2006, which was dismissed on 12 January 2015. The petitioner then filed the present writ petition in 2015, which was dismissed on 27 September 2024.
Acts & Sections
- Cantonments Act, 2006: Section 238(6), Section 248(1), Section 340
- Works of Defence Act, 1903:
