922-WP.9218 & 9220.2025+1.odt

PDP.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 9218 OF 2025

1. Nikhil Vithal Jhaveri }

Adult/53 years, Indian Inhabitant }

through Mr. Ashok Becharay, }

Power of Attorney Holder, }

Bahar, 25 Vishwamitra Colony, }

Off. Law College Road, Pune }

Maharashtra – 411004 }

2. Kirti V. Jhaveri alias }

Adult/63 years, Indian Inhabitant }

through Mr. Ashok Beharay }

Power of Attorney Holder, }

Bahar, 25 Vishwamitra Colony, }

Off. Law College Road, Pune }

Maharashtra – 411004 } Petitioners

Versus

1. Chief Executive Officer, }

Pune Cantonment Board, }

Golibar Maidan, Pune 411 001 }

}

2. Defense Estate Office, Pune Circle, }

Pune, B No.16, Rajendrasinghji }

Road, Pune 411001 Maharashtra }

}

3. General Officer Commanding-in-Chief }

(GOC-in-C) of the Headquarters Sub }

Area (HQSC), Pune Cantonment Board, }

Head Quarters, Southern Command, }

Pune 411001 }

}

4. Principal Director, Defense Estates, }

Pune Cantonment Board, }

Southern Command, Pune 411001 } Respondents

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WITH

WRIT PETITION NO. 9220 OF 2025

Mamta Jain }

Age 52 years, Indian Inhabitant }

11, Napier Road, Near Pulgate Bus Stop, }

Camp, Pune 411 001 } Petitioner

Versus

1. Chief Executive Officer, }

Pune Cantonment Board, }

Golibar Maidan, Pune 411 001 }

}

2. Defense Estate Office, Pune Circle, }

Pune, B No.16, Rajendrasinghji }

Road, Pune 411001 Maharashtra }

}

3. General Officer Commanding-in-Chief }

(GOC-in-C) of the Headquarters Sub }

Area (HQSC), Pune Cantonment Board, }

Head Quarters, Southern Command, }

Pune 411001 }

}

4. Principal Director, Defense Estates, }

Pune Cantonment Board, }

Southern Command, Pune 411001 } Respondents

Dr. Birendra Saraf, Senior Advocate with Mr. Bhushan

Deshmukh, Mr. Abinash Pradhan, Ms. Garima Agrawal and

Mr.Yash Dedhia i/b. Wadia Ghandy & Co., for the Petitioners in

both Petitions.

Mr. K. J. Presswalla with Mr. Tushad Kakalia and Mr. Sandeep

Goyal i/b. Mulla & Mulla & Craigie Blunt & Caroe, for

Respondent No. 1.

Mr. A. S. Khandeparkar, Senior Advocate with Ms. Shehnaz V.

Bharucha and Mr. Mohamedali M. Chunawalla, for Respondent

Nos. 2, 3 & 4.

Captain Harkaran Singh, Officer present.

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CORAM :RAVINDRA V. GHUGE, ACJ. &

GAUTAM A. ANKHAD, J.

RESERVED ON :2

nd

SEPTEMBER, 2026

PRONOUNCED ON : 7

th

SEPTEMBER, 2026

JUDGMENT : (Per, Ravindra V. Ghuge, ACJ.)

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The Petitioners in Writ Petition No.9218 of 2025 have put-forth

the following prayers: -

“a) that this Hon'ble Court be pleased to issue a writ of certiorari or

a writ in the nature of certiorari or any other appropriate writ,

order or direction calling for the records and proceedings

culminating into the issuance of the Impugned Communication

dated 20

th

March 2025 (Exhibit 'A' hereto) by which

Respondents have purported to reject the Petitioners' application

dated 10

th

July 2020 (Exhibit 'I' hereto) for planning permission

and after going through the legality, validity and proprietary

thereof, quash and set aside the same;

b) that this Hon'ble Court be pleased to issue a writ of mandamus

or a writ in the nature of mandamus or any other appropriate

writ, order or direction directing the Respondents to forthwith

sanction the plans for proposed construction on the subject Land

in terms of the Petitioners' application dated 10

th

July 2020

(Exhibit 'I' hereto) by taking into consideration only the town

planning norms;”

3. The Petitioner in Writ Petition No.9220 of 2025 has put-forth

the following prayers: -

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“a) that this Hon'ble Court be pleased to issue a writ of certiorari or

a writ in the nature of certiorari or any other appropriate writ,

order or direction calling for the records and proceedings

culminating into the issuance of the Impugned Communication

dated 20

th

March 2025 (Exhibit 'A' hereto) by which

Respondents have purported to reject the Petitioner's application

dated 13

th

September 2022 (Exhibit 'F' hereto) for planning

permission and after going through the legality, validity and

proprietary thereof, quash and set aside the same;

b) that this Hon'ble Court be pleased to issue a writ of mandamus

or a writ in the nature of mandamus or any other appropriate

writ, order or direction directing the Respondents to forthwith

sanction the plans for proposed construction on the subject Land

in terms of the Petitioner's application dated 13

th

September

2022 (Exhibit 'F' hereto) by taking into consideration only the

town planning norms;”

4. The dates and sequence of events in the first Petition no.

9218

Of 2025 (Nikhil Vithal Jhaveri and Ms. Kirti V. Jhaveri), are summarized as

under: -

a) By and under an Indenture of Lease dated 31.01.1944, executed

between the then President of India (Lessor) and Mr. Khan Saheb M.H.

Moledina (Lessee), Khan Saheb was granted lease of the land admeasuring

3.10 acres situated at Poona Cantonment, which is recorded in the General

Land Register of the Cantonment bearing Survey No.30, Bungalow No.5,

Queens Garden (Larger Land) for a period of 30 years, and renewable upto a

period of 90 years.

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b) The yearly rent was Re. 1/-, which was renewable for a period

of 90 years (Head Lease).

c) Under the Head Lease, the lessee could not erect any building

on any part of the Larger Land, except the existing building, without the

previous consent of the Officer Commander-in-Chief. The said parcel of

land should not be used for any purpose other than for a dwelling house.

d) On 23.03.1944, Khan Saheb transferred his leasehold rights in

the Larger Land to H.H. Maharani Chimnabai Gaekwad of Baroda (the

Maharani).

e) After the demise of the Maharani, intestate, Letters of

Administration were granted to Prince Khanderao Raje Gaekwad and

Princess Usha Raje Ranisaheb, (Administrators) by the Hon’ble High Court,

on 20.03.1959, to administer all assets and property of the late Maharani.

f) On 29.09.1962, the Administrators sold the leasehold rights of

the Larger Land to Shri Tulsidas Chaturbhuj Gandhi.

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g) Under the orders of this Court, a Deed of Assignment dated

15.07.1963 was executed by the Administrators for the transfer of leasehold

rights in the Larger Land in favour of the nominees of Shri Tulsidas, viz.

Mrs. Madhukanta Tulsidas Gandhi, Mr. Vishnu Gopal Kanetkar and Mrs.

Usha D. Sathe.

h) By a judgment and decree dated 24.10.1972, delivered in a Suit

filed by Vishnu Gopal Kanetkar for partition of the Larger Land, the said

land was sub-divided into four plots which were numbered as 5-A, 5-B, 5-C

and 5-D, each admeasuring 0.725 Acre. The Plot No. 5-B came to the share

of Vishnu Gopal Kanetkar.

i) On 22.08.1974, Vishnu Gopal Kanetkar sold his leasehold rights

on Plot No.5-B, to Mrs. Charulata Jhaveri.

j) On 03.07.1976, the lease of the Larger Land was renewed for a

second term of 30 years from 01.12.1973 to 30.11.2003.

k) On 22.04.1993, the Government of India sanctioned the sub-

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division of the Larger Land into four parts, 5-A to 5-D, on the following

conditions:

“i) That the then lessees of the sub-divided plots of the

Larger Land will surrender their then existing lease to the

Government of India;

ii) That the then lessees of the sub-divided plots of the

Larger Land will enter into four separate lease deeds for the

unexpired portion of the surrendered lease;

iii) No building/structure to be constructed on the sub-

divided premises without prior sanction of the GOC-in-Chief

of the Command.”

l) After the death of Mrs. Charulata Jhaveri in 1992, by virtue of

her bequest, the Petitioners became the owners of the leasehold rights of the

subject land.

m) On 13.11.1993, the Petitioners executed a Surrender Deed in

favour of the President of India, thereby surrendering their leasehold rights

in the subject land in favour of the President of India.

n) On 13.11.1993, the President of India simultaneously executed a

Lease Deed in favour of the Petitioners for renewal of the lease of the subject

land for a period of 10 years from 01.11.1993 till 30.11.2003.

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o) On 19.04.2006, the Petitioners, through their Power of Attorney

Holder, requested the Defence Estate Officer/Respondent No.2, for renewal

of the lease for a further term of 30 years, till 2033. The Petitioners also

conveyed through the same letter that they desired to undertake construction

for residential purpose on the subject land for which, building plans were

under preparation and were planned to be submitted shortly.

p) After several reminders to the Defence Estate Office, on

18.05.2007, the President of India renewed the lease for the last term of 30

years (the last portion of the 90 years lease), from 01.12.2003 to 30.11.2033.

q) On 26.06.2007, the Petitioners addressed a letter to the Director

General, Director of Defence Estates, seeking permission to construct two

buildings comprising of four dwelling units on the subject land. A reminder

was sent on 05.10.2007. One more letter was issued on 19.11.2007, seeking

permission to construct two residential structures as per FSI Rules and

Building Bye-laws. Despite several reminders, there was no response.

r) On 10.07.2020, the Petitioners submitted another Application

along with the plan for construction of a residential bungalow consisting of a

ground floor, under Section 235 of the Cantonments Act, 2006.

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s) One more letter was sent by the Petitioners on 07.09.2020

confirming to Respondent No.2 that they are aware of the lease on the

subject land which would expire on 30.11.2033, and yet they would like to

continue to build their home, at the earliest.

t) On 09.09.2020, Respondent No.2 responded to the Application

of the Petitioners stating that their request was under consideration with the

Principal Director, Defence Estates, Southern Command, Pune and sought

certain clarifications, as follows:

“You have informed that the building plan has been

submitted by POAH Sh Ashok S. Beharay. It is requested to

examine the POA and ascertain whether it is operative as on

date and whether Sh. Ashok S. Beharay is authorized to

submit the building plan. A copy of POA along with your

recommendations may be submitted.”

t is also requested to ascertain whether the lessee(s)

are alive and they may be informed that the lease renewed

for last and final term of 30 years in possession of the land

will be taken over by the Govt. on 01.12.2033. As such,

whether they are still willing to invest for construction on

Govt. land merely for remaining 13 years.”

u) On 15.09.2020, the Petitioners submitted an affidavit declaring

and confirming that the POA was still valid and the Petitioners desired to

build a home at the earliest, in full compliance of all conditions of the

Defence Estate Office, applicable at the time of the expiry of lease.

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v) On 15.02.2023, the Petitioners addressed a letter to the Minister

of State for Defence praying for permission to construct the residential

bungalow.

w) In October, 2024, as Respondent No.2 failed to provide any

response to the Petitioners’ Application, Petitioner No.1 filed a Writ Petition

(C) No.15364 of 2024 before the Delhi High Court.

x) On 20.03.2025, Respondent No.1 issued the impugned

communication informing the Petitioners that the Application dated

10.07.2020 was rejected vide communication dated 27.01.2025. The

endorsement is that ‘

An objection is raised on behalf of Government under

Section 238(3) of the CA 2006 to proposed constructions

”.

5. In the second

Writ Petition No. 9220 of 2025 (Mrs. Mamta

Jain), the dates and events are more or less similar. As such, the distinct

dates and events in this case, in addition to the entire history from 1944

recorded herein above with reference to the first Writ Petition, read as

under:-

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(a) The subject land Plot No.5-A was allotted by

Vishnu Gopal Kanetkar to Mrs. Madhukanta Tulsidas Gandhi.

(b) Mrs. Madhukanta expired on 02.07.2005, leaving

behind a last Will and Testament dated 11.11.1991, under which all her

rights, claims and interests in the subject land were bequeathed to Mr. Chirag

Gandhi.

(c) Between 2012 to 2022, Chirag Gandhi (Predecessor-in-

title of the Petitioner) also sent several letters to the concerned authorities for

renewal of lease.

(d) Akin to the facts as narrated herein above with reference

to the first Petition, the President of India granted a lease in favour of Chirag

Gandhi for a period of 30 years, until 30.11.2033.

(e) On 20.03.2025, after a period of two and half years, the

Petitioner’s Application dated 13.09.2022 was rejected by the authorities by

order dated 06.03.2025.

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SUBMISSIONS ON BEHALF OF THE PETITIONERS

6. The learned Senior Advocate, Dr. Birendra Saraf, has tendered

his written notes of submissions. The silent features of his oral and written

submissions are as under: -

7. Re: Maintainability

a) The contention regarding alternate remedy is baseless and has no merit

for the mere fact that admittedly, the Impugned Communication has been

issued by Respondent No. 1 solely on the basis of the aforesaid purported 6th

March 2025 order and 13th March Letter. Thus, when Respondent No. 3,

who is the Appellate Authority under the Cantonments Act, has already made

up its mind and refused to grant consent qua the Petitioner's Application

under its 6th March 2025 order, no fruitful purpose would be served by

relegating the Petitioner to avail the alternate remedy and it would be an

empty formality. Thus, this statutory appeal provision, however, is not

efficacious and is rather redundant [Para 31/Pg. 22].

b) Even otherwise, the availability of an alternative remedy is a self-

imposed restriction and does not operate as an absolute bar to the

‘maintainability’ of a Writ Petition under Article 226 of the Constitution of

India before this Hon'ble Court. The power to issue prerogative Writs under

Article 226, is plenary in nature. Article 226 does not cast any fetters on

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High Courts whilst exercising their power to issue Writs, and the mere fact

that the Petitioners have not pursued an alternative and/or efficacious

remedy, cannot mechanically be construed as a ground for dismissal. The

rule, which requires a party to pursue the alternative remedy provided by a

statute, is a rule of policy, convenience and discretion, rather than a rule of

law.

c) Following the principles laid down in Whirlpool Corporation v.

Registrar of Trademarks, Mumbai & Ors., (1998) 8 SCC 1, where a Writ

Petition seeks enforcement of any of the fundamental rights or where there is

a violation of principles of natural justice, as is in the facts of the present

case, a Writ Petition is certainly maintainable and ought to be entertained.

8.Re: Legality of the alleged Reasons

a. The alleged Reasons contained in the collateral 6th March

202 Letter, are extraneous to Section 238 (4) of the Cantonment Act. None of

the reasons mentioned in the purported 6th March 2025 order, fall under any

of the grounds contained in Section 238 of the Cantonment Act.

b. Respondent No. 3 has provided the alleged Reasons

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(under its 6th March 2025 order) after an inordinate and unexplained delay

of 2.5 years from the Petitioner's Application dated 13.09.2022, and the same

has been disclosed to the Petitioner for the very first time only through the

said Reply, thereby clearly demonstrating the arbitrary and unfair conduct of

Respondent No. 3. The Respondents cannot be allowed to take advantage of

their own wrong.

c. Even otherwise, the reasons for which Respondent No. 3

has ‘not consented’ to the Petitioner's Application for construction of a

residential bungalow on the subject Land for her personal use, are ex facie

illegal, arbitrary, unjust, untenable, unreasonable and mala fide. The alleged

Reasons are wholly irrelevant and / or have no causal connection to the

purposes for which Respondent No. 3's consent is required

d. Admittedly, the lease of the subject Land in favour of the

Petitioner is subsisting as on date and is valid till 30.11.2033. The lease

contemplates erection of building on the subject Land. Moreover, Petitioner's

Application is in conformity with the terms and conditions of the Head Lease

and the applicable building regulations. Neither the 6th March 2025 order/13

March Letter nor the said Affidavit even remotely state that the Petitioner's

Application is faulty, defective and/or in breach/violation of the Head Lease

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and the applicable building regulations. Given this, there is absolutely no

reason for the Respondents to reject the Petitioner's Application and not

grant sanction thereof

e. In such circumstances, merely because the lease expires

on 30.11.2033 and granting building permission would purportedly

jeopardise the Respondents' efforts to determine the subject Land, and that

the resumption process post construction would entail paying the escalated

costs of the building which would allegedly be a colossal loss to the

exchequer, cannot be a valid reason for the Respondents to reject the

proposal of the Petitioner. Seven years prior to the scheduled expiry of lease,

the Respondents cannot refuse permission to the Petitioner on the basis of

any pre-emptive unreasonable grounds and withhold consent when there is a

valid, binding and subsisting lease in favour of the Petitioner.

f. The Petitioner in the captioned Petition has already given

an undertaking on oath that the Petitioner undertakes to comply with all legal

consequences upon the expiry of the lease and abide by the applicable laws

in that regard. In view thereof, the Respondents' aforesaid

apprehension/contention stands adequately safeguarded and addressed.

Accordingly, the Petitioner's undertaking to this Hon'ble Court is sufficient

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and complete protection, and no further objection and/or reservation survives

on that count [Ground M/Pg. 18].

g. The Respondents cannot be permitted to deprive/defeat

the valuable rights of the Petitioner in such a circuitous manner, and frustrate

the Petitioner's valid, subsisting and binding lease in respect of the subject

Land and present the Petitioner with a

‘fait accompli’. The Respondents

cannot be permitted to be derelict in their statutory duties and act in a mala

fide manner in this fashion.

h. Respondent No. 1 has granted permission to the lessee of

Plot No. 5-D, Survey No. 30/4 for construction of a building consisting of 2

residential bungalows. The said plot and the said Land are a part of the same

layout, and the lease for both the plots would expire on 30.11.2033.

Respondent No. 1 has sought to single out the Petitioner and rejected the

application without any reason. The same is in violation of Article 14 of

Constitution (Ground B/Pg. 14].

9. In addition to the above grounds, the Petitioners in both these

Petitions have given certain undertakings thereby agreeing to bind

themselves to such conditions which were stated before this Court and which

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were recorded in the order dated 20.01.2026, which are reproduced

hereunder: -

“

a. The construction, if permitted, shall be used only as a

home by the Petitioners for personal residential purposes.

b. The bungalows shall not be apartments or a multi-storeyed

high-rise cluster of flats.

c. No third party rights or encumbrances would be created

on such bungalows.

d. These bungalows would not be used for commercial

purposes.

e. The Petitioners would enjoy the said bungalow property as

a family-dwelling.

f. If the lease is not extended after 2033 and the property

vests in the Government, the Petitioners shall not claim ex

gratia compensation as provided under Clause 2(II)(a) of the

Land Policy in Cantonments.

g. If the building is permitted to be constructed, it will

enable the parties to at least enjoy their newly constructed

homes for around 8 years, the Petitioners would abide by the

policy as may be applicable in 2033 with regard to vesting of

the bungalow either with the Government or if the

authorities insists.

h. If the Petitioners are aggrieved by non-continuation of the

lease and if the Petitioners have any right to assail such a

decision, the same would be exercised, but the construction

of the bungalow and the bungalow standing on the leased

land would not be a ground to be canvassed for claiming

equities and such a decision of non-renewal would be

assailed only on the basis of the policy then in force and on

such grounds of parity as may be available, if others are

granted extension.”

SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 2 TO 4

10. The learned Senior Advocate, Shri Abhay Khandeparkar, has

tendered his written submissions in extenso. He has reiterated that the land

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is a defence land and the ownership vests absolutely in the Union of India.

The Petitioners are merely leaseholders possessing limited and conditional

rights governed under the terms of grant (Schedule VIII), Cantonment Land

Policy and applicable statutory Regulations. It is canvassed that a lessee of

Government land cannot claim vested or proprietory right inconsistent with

the defence interest or organization purposes. The lease documents in

question which is of paramount importance (Schedule VIII) is expressly a

building lease. A plain reading of the lease shows that it pertains to an

existing building and the land appurtenant thereto. The adjoining land is also

incidental to the enjoyment of the building and may be treated as a lawn,

garden or open space forming part and parcel of the residential premises.

11. It is further canvassed in the written notes that the subject

property forms part of defence land originally leased in 1944 for a limited

tenure extendable upto 90 years. Defence bungalows in India were

originally built during the British era for military officers under Cantonment

Act. Some civilians occupied a few bungalows through old British era

leases, long term lease agreements or special permissions. But this was

always an exception. After independence, the Ministry of Defence continues

to reserve lease bungalows for serving and retired officials and the laws like

Cantonments Act, 2006 strictly prevents civilian residential use except where

authorised lease exists.

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12. Condition 6 of the Lease Deed determines the reason for which

the lease was granted. This condition demonstrates that there existed a

building and the lease was restricted from altering the structure and/or the

elevation. In other words, the intention was to retain the existing structure

in the same form. Condition 5 of the Lease Deed restricts the inherent right

of a lessee to erect any structure in the leased premises, other than the

existing bungalow. In an event the lessee desires to construct, he has to

secure permission from the lessor. Such permission was strictly within the

domain of the lessor. Over the time, any civilian occupation has mostly been

due to legacy leases or Court’s sanctioned arrangement.

13. It is further canvassed that the leasehold rights have undergone

multiple changes over decades. The lease dated 31.01.1944 is a building

lease and not a lease of open land for development. The land mentioned in

the lease is attached to the government building only for its proper use and

enjoyment. Ownership of the land remains with the Government. The lease

clearly states that no new building can be constructed and no structural

changes can be made, without prior written permission of the competent

authority. The title of the lease (Schedule VIII) itself belies the contention of

the Petitioners, it being a 'Building Lease' and not a property lease, thereby

signifying the nature of the property which entails enjoyment of the existing

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bungalow, with upkeep and renovation within the scope of the lease, but not

new construction except with the express consent of the competent authority

(being GOC-in-C).

14. Notwithstanding such transfers, ownership has, at all times,

remained with the Government of India and the land continues to retain its

Defence character.

15. Since the early 1990s, Defence authorities have consistently

examined proposals for resumption and utilisation of the entire Bungalow

No. 5 for Defence purposes, particularly for Officers' Married

Accommodation and related infrastructure. Pune Cantonment is a land-

deficient military station, and long-term operational planning necessitates

preservation of compact Defence land parcels. In matters involving

competing private leasehold interests and national security considerations,

public interest and Defence preparedness must prevail. The Competent

authorities are legally entitled to refuse permissions that may prejudice

future Defence utilisation.

16. Pune is a strategically important station in an evolving security

environment, and the ongoing process of integration of the three services at

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the theatre level makes this compact block of land operationally significant

for tri-services requirements. Pune Cantonment is a land-deficient station,

particularly for Officers' Married Accommodation, as already pointed out in

affidavits filed in the present writ proceedings.

17. The Petitioners have offered undertakings before the Court that

they will use the proposed constructions only as their own residential houses,

will not put them to commercial use, will not convert them into apartments

or high-rise clusters, will not create third-party rights or encumbrances, will

not claim ex gratia compensation, and, if they challenge non-renewal of the

lease in future, they will not rely on the existence of construction to claim

equity but only on applicable policy and parity. To this effect, both the

Petitioners have also filed an affidavit declaring that if they are aggrieved by

non-continuation of the lease, then they will exercise their respective right to

assail only as per policy in force, equities or on parity and not on the grounds

of construction of bungalow on lease land. Thus, the petitioners are not

giving up their right to challenge non-renewal of the lease.

18. Further, the undertakings in affidavits do not fully address the

core concerns as once construction is permitted and the structures are

erected, subsequent transfers, intra-family arrangements, grounds of parity,

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or changes in policy may materially alter the nature of occupation and

control before effective action can be taken. Therefore, there is a real and

foreseeable risk/ contingency that, upon non-renewal of the leases in 2033,

the resumption of the land for Defence purposes would be delayed or

frustrated, resulting in continued non-utilisation of a strategically located

Defence asset, thereby affecting the military and strategic objectives in the

highly sensitive global security scenario.). Further, the construction of new

structures of residential nature may create further unforeseeable grounds for

challenge or perceived rights in the eyes of the petitioners, which for all the

wisdom of the present litigants and parties involved, are not yet seen, but

may nevertheless delay, frustrate or embroil the parties in litigation at the

pertinent moment.

19. It would be necessary to consider with respect, that during the

entire tenure of 90 years around 84 years the lessee rightly understood that

the plot was to be used only as a garden. The requirement of Defence is well

spelt out and that therefore, it is respectfully submitted that permitting any

construction on the leased land would embroil the Defence in further

litigation which would be contrary to the interest of the security of the

country, especially taking into consideration the volatile situations existing in

and around the security of the Country. It is respectfully submitted that the

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nature of warfare has changed and hence, with the triple services required to

work in co-ordination with each other, the countries interests would be left to

the Defence to exercise its discretion in the manner in which the land is

required to be put to use.

20. It is canvassed by Respondent No.2 that the GOC-in-C has

considered the defence requirements, audit objections, long term strategic

planning, the limited subsisting tenure of the lease upto 2033 and the legal

implications of permitting permanent construction on the defence land. The

impugned decision is reasoned and founded strictly upon organizational

requirement. It is settled law that judicial review under Article 226 does not

entail substitution of administrative wisdom with judicial opinion.

21. Respondent No.2 has placed reliance upon Chief Executive

Officer v. Surendra Kumar Vakil & Ors., (1999) 3 SCC 555, wherein the

Hon’ble Supreme Court has held that occupants of old grant properties

posses only limited rights. Relinace is placed on Tata Cellular v. Union of

India, (1994) 6 SCC 651, wherein the Hon’ble Supreme Court has held that

Courts should practice judicial restraint while reviewing the decision making

process, not the merits of the decision itself and interference is warranted

only where the decision is arbitrary, mala fide or contrary to the statute.

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22. It is further submitted that, once permanent private

constructions/structures arise, resumption of land becomes practically

difficult, financially burdensome, and prone to litigation, thereby causing

serious impediments in the resumption of the lands. In the case of Survey

No. 30/4 (Plot 5-D), the permission was given for construction improperly

without approval of the General Officer Commanding-in-Chief, and the

leasehold rights, were ultimately passed on to ‘Kumar Builders’, who is a

private builder. This transaction and the consequential loss of effective

Defence control over valuable B-3 land has been adversely commented upon

by Audit Authorities and culminating in observation that, due to oversight,

Defence land of significant value has effectively passed into the hands of a

private builder and that the feasibility of regaining the land after the lease

period is remote and may actual delay in resumption, as the land is likely to

become embroiled in litigation upon expiry of the lease in 2033. In these

circumstances, the earlier grant of permission in respect of Plot 5D, which

was criticised by Comptroller and Auditor General (CAG), cannot be treated

as a precedence to follow. Thus, negative parity cannot be claimed as a right.

23. According to the lease agreement itself, it is amply clear that the

lease was a covenant for the already existing building and any Structure

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(only non commercial, residential being allowed in the first place) requires

express consent of the GOC-in-C. Earlier permission granted on Plot 5-D

was severely criticised in Performance Audit proceedings, noting that

Defence land of substantial value, was effectively passed onto a private

builder. The audit observations underscore the obligation of Defence

authorities to prevent further dilution of Government ownership and to

safeguard public property. Administrative decisions must conform to

standards of financial propriety, and repetition of an earlier error cannot be

compelled through judicial review.

24. It is further canvassed that the lease expires in 2033, leaving

only a short residual tenure. Construction of permanent structures at heavy

cost for a limited remaining period is commercially and administratively

impractical and indicates an attempt to create equities that may later obstruct

lawful resumption. It is a settled principle and only consistent with fairness

that creation of equities against the Government on expiring leases, cannot

be encouraged.

25. It is then canvassed, that the undertakings proposed by the

Petitioners do not mitigate the legal and practical risks arising from

construction, Administrative authorities cannot dilute statutory powers or

future sovereign rights through private undertakings. Enforcement of such

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undertakings would require continuous monitoring and would not prevent

future transfers, indirect commercialization, or litigation upon non-renewal

of lease. And permission granted at this stage may create unforeseen rights

which may or may not be prejudicial by the undertaking, leading to

ambiguity and prolonged litigation.

SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1

26. The Pune Cantonment Board, Respondent No.1, has filed an

affidavit in reply dated 06.10.2025. The first objection raised by Respondent

No.1 is that the Writ Petition is not maintainable. The Impugned Order has

been passed under Section 238 of the Cantonments Act, 200 (Cantonments

Act). Under Section 340, read with the fourth column of Schedule V of the

Cantonments Act. An appeal against a decision under Section 238, lies to the

General Officer Commanding-in-Chief of the Command (GOC-in-C). The

Impugned Order has admittedly been passed by Respondent No. 1 and not

the GOC in C. It is not the Petitioner's case that the GOC-in-C is personally

biased or otherwise not competent to entertain the Petitioner's appeal against

the Impugned Order. The Petitioner's contention that no purpose would be

served by filing an appeal from the Impugned Order is, therefore. misplaced.

In the circumstances, given that the Petitioner has an efficacious alternate

remedy in the form of an appeal under Section 340 of the Cantonments Act,

the present Petition is not maintainable and ought to be dismissed by this

Hon'ble Court at the threshold.

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27. In the light of the provisions of the Head Lease (which, it is

reiterated, are applicable to the Petitioners by virtue of the provisions of the

Lease Renewal), the consent of the General Officer Commanding-in-Chief of

the army is required for the purpose of erecting any building other than the

buildings already existing on the said Land. In the present case, it is an

admitted position that the said Land is vacant and that the Petitioner seeks to

erect an entirely new bungalow.

28. Further, under Section 238(3) of the Cantonments Act, the

Respondent No. 1, before sanctioning the erection or re-erection of a

building on land which is under the management of the Defence Estates

Officer (DEO), is required to refer the application to the DEO for

ascertaining whether there is any objection on the part of the Government to

such erection or re-erection and the DEO is required to return the application

together with his report thereon to the Respondent No. 1.

29. Since the said Land falls under the management of Respondent

No. 2, i.e. DEO, Respondent No. 1, in accordance with Section 238(3) and in

light of the provisions of the Head Lease, duly forwarded the Petitioner's

building application to Respondent Nos. 2 to 4 in order to ascertain if the

Government had any objections thereto.

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30. By a letter dated 13th March 2025, Respondent No. 4

communicated to Respondent No. 1, the fact that by a letter dated 27th

January 2025, the Headquarters, Southern Command had, after noting the

provisions of the Head Lease requiring the prior consent in writing of the

GOC-in-C, Respondent No. 3, stated that the it had not consented to the

erection of a building on the said Land. Respondent No. I was instructed to

take further necessary action regarding the building plans.

31. Respondent No. 1, by the Impugned Order, informed the

Petitioners that the building application had not been consented to by

Respondent No. 3. Respondent No. 1 further pointed out that an objection

had been raised on behalf of the government to the proposed construction

under Section 238(3) of the Cantonments Act. Respondent No. 1

accordingly, by the Impugned Order, informed the Petitioners that the

building application had been rejected. The Impugned Order explicitly sets

out the reason for refusal i.e. the objection raised by the government under

Section 238(3) of the Cantonments Act. Thus, there is a substantial

compliance of Section 238(5) of the Cantonments Act. For Respondent No.

1, the reason for its inability to sanction the Petitioner's building plan is the

lack of prior consent of the government (as provided for under the Head

Lease) and the objection raised by the government, as more particularly set

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out above. In the circumstances, there is no infirmity whatsoever with the

Impugned Order. The Petitioner's challenge thereto is wholly misplaced.

32. An affidavit in reply has also been filed by Lieutenant Colonel

Naveen Chauhan on behalf of the Union of India. No where in the said

affidavit in reply dated 12.01.2026, is it mentioned as to which Respondent

is represented by Shri Naveen Chauhan. There is no verification affidavit in

support of the said affidavit in reply. It is canvassed that the Petitioner has

failed to exhaust the statutory appeal remedy under the Cantonment Act,

2006.

33. It is also submitted that the subject land on which construction

is proposed is at a close proximity to Headquarters of the Southern

Command (within 200 meters), which served as a staging area during

conduct of Operation Sindoor, operational readiness and operational footing,

wherein all co-ordination and planning was conducted by senior officers.

Further, it is also submitted that in the present day and age of advanced

drone warfare, such physical proximity also results in constant security

concern of surveillance and attack, over Headquarters of a Command

(especially, Southern Command). Although full trust and faith is extended to

all citizens of the nation, inimical elements working through other,

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technology and proximity dependent means have to be taken into

consideration.

34. In response to the averments in paragraph 8 of the Petition, it is

submitted as follows:

(a) Vital Defence Interests & Land Scarcity. The subject

property (B3 property at Queen's Garden, Survey No 30/01, 30/02, and

30/03) is critical to the operational and administrative requirements of the

Army

(b) Land Deficiency: Pune Cantonment faces a land deficiency

of approximately 600 Acres. There is a 43% deficiency in Officer Married

Accommodation, due to non-availability of land.

(c) Zonal Planning: The property at Queens Garden is

specifically zoned for Officer Married Accommodation in the Zonal Plan.

Determination of this B3 property is essential to meet this military

administrative requirement.

(d) Lease Expiry: The lease of the complete property expires on

30 November 2033. Currently, the pockets of land under Survey Nos. 30/01,

30/02, and 30/03, are vacant. It is the intent of the Local Military Authority

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(LMA) to determine the property in 2033 upon expiry, ensuring no cost to

the exchequer.

(e) Audit Observations: A Draft Para (DP-85/2010-11) issued

by the Director of Audit Defence Services highlighted that the failure to

resume this land resulted in prime defence land being transferred to private

builders for commercial exploitation, leading to a private gain of Rs 1.65

Crore.

(f) Loss to Exchequer: Granting the Petitioner sanction to

construct on vacant land when the lease expires in 2033 would jeopardize the

determination process and cause a colossal loss to the exchequer, as the

Government would be liable to pay escalated building costs upon eventual

resumption.

OUR ANALYSIS AND CONCLUSIONS

35. We have considered the submissions of the parties, in details, as

is evident from the foregoing paragraphs.

36. These plots are in the Pune Cantonment, which is said to be a

prime location and the cost of the land has skyrocketed to unimaginable

proportions. Each plot measures approximately 0.725 acres, forming part of

a single parcel of land admeasuring 3.10 acres, recorded in the General Land

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Register of the Cantonment at Survey No. 30. These plots are identified as

Plot 5-A in Survey No. 30/1 and Plot 5-B in Survey No. 30/2.

37. The Petitioners have applied for permission to construct

residential bungalows/dwellings as is otherwise permissible under Condition

1(5) under Schedule VIII of the Cantonment Land Administration Rules,

1937. As such, it is not an anathema to construct a dwelling house. The

embargo is on erection of any building other than a dwelling house.

38. The Petitioners in the first petition, seek permission to construct

a bungalow for personal residential use. The Petitioners in the second

Petition desire to construct a two-floor building comprising eight rooms.

Such applications were made in 2020. The lease, as per the present

extension, subsists until 2033, and it is undisputed that, depending upon the

policy and the Rules, a further extension is permissible. The authorities can

also conclude the lease agreement and resume the land.

39. By these Petitions, the Petitioners have assailed the reports of

Respondent Nos. 2 and 3, thereby refusing to grant permission for

construction, and the subsequent rejection by the Pune Cantonment Board

relying upon the objections raised by Respondent Nos. 2 and 3. Vide the

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pleadings and the written submissions, it is conveyed to us that since the

lease is to expire in 2033, there remains a period of only seven years. Under

Clause 2(II)(a) of the Land Policy in Cantonments, which was shown to us, a

lessee who has a standing immovable property on the leased land, can claim

ex-gratia compensation equal to 50% of the value of the authorized

constructions, if the lease is not renewed, resulting in the constructions

vesting in the Government.

40. It is in the above backdrop that the learned Senior Advocate

representing the Petitioners, points out that adjacent plot holders bearing

Nos. 5-C and 5-D have been granted permission to construct and that their

buildings are standing. Whereas, the Petitioners are denied permission for

reasons based only upon apprehensions of the Respondents,

41. We have perused the Order dated 30/09/2005 passed in Writ

Petition No. 5069 of 1997 on 30/09/2005. Though Respondent Nos. 2 and 3,

had taken the ground that there was a requirement of land for construction of

Married Officers’ Accommodation, not a single such accommodation has

been constructed thereafter, till today. Further, even in 2005, when the

judgment was delivered, permission to construct was granted to the plot

holder of Plot 5-D.

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42. Under Chapter XIV of the Land Policy in Cantonments under

the Cantonment Laws, Clause 2 (II) (a), it is provided as under: -

II. Leases not containing resumption provision :

(a) The existing lease hold sites held on non-

resumable tenure would be continued on the existing terms

during the tenure of the lease, and fresh lease granted

thereafter on the normal terms unless the sites/property is

required for Defence purposes. Where, in the event of

refusal to renew the lease the constructions vest in Govt.,

ex-gratia compensation equal to 50% of the value of the

authorised construction will be paid to the holder.

43. It is, thus, apparent that Respondent Nos.2 to 4 and the

Cantonment apprehend the following eventualities : -

(a) The Petitioners would first construct bungalows on the said

plots purportedly to be used as their personal dwelling.

(b) After such bungalows are constructed, these Petitioners would

utilize the said bungalows as residential houses, initially, and then would

start renting out the same to close relatives, kith and kin and close friends for

earning revenue.

(c) At the time of the decision making as to whether the lease

should be extended or not, these Petitioners would create third party interests

in favour of builders/promoters/developers, as was done by the lease plot

holder of Plot No.5-D. This would create innumerable legal complications

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and such property developers would construct multi-storeyed tower

buildings and would keep the Respondents involved in litigation for decades

to come.

(d) If tower buildings are constructed, the security of the defence

installations around would be compromised. Considering the immense

progress made in the technology of warfare, the cantonment areas would be

under a grave security threat.

(e) Even if the Respondents succeed in regaining the lands by not

extending the lease period from 01.12.2033 and resume the lands, these

Petitioners would claim ex-gratia compensation equal to 50% of the value of

the authorized construction in the light of Clause 2(II)(a) of the Land Policy

in Cantonments and the Cantonment Laws.

44. The question in this petition is whether the statutory and

administrative power has been properly exercised by the Respondents and

whether the impugned rejection is based on relevant considerations of the

present case.

45. In the present case, the Petitioners do not seek to alter the

character of the land, use it for a commercial purpose or create a

development of a nature inconsistent with the residential character of the

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lease. What is proposed is the construction of a dwelling house for personal

residential use. The Respondents have not pointed out any provision of the

subsisting lease, or any applicable building regulation, which prohibits such

construction for residential and personal use. The objection of Respondent

Nos.2 and 3 proceeds upon a purported apprehension that the construction

may make future resumption difficult, or rather impossible. In our view, such

an apprehension, however, cannot by itself justify defeating a presently

subsisting contractual and statutory right. That apart, the Petitioners have

expressly undertaken to abide by the consequences of the expiry or non-

renewal of the lease including handing over of the constructed portions and

not claiming any compensation from the Respondents.

46. We also clarify that granting permission to construct a

residential house today does not confer upon the Petitioners any right to

renewal in 2033. Nor does it prevent the Government from taking an

independent decision, in accordance with the applicable law and policy

prevailing at the relevant time, to resume the land if it is genuinely required

for defence purposes. The Petitioners have expressly accepted this position

before us vide their Undertaking.

47. We are conscious that matters concerning defence land require a

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degree of institutional deference and that this Court would be slow to

interfere. We are examining whether the decision impugned before us has

been taken upon relevant material, whether the reasons bear a rational

connection with the decision, and whether the Petitioners’ subsisting rights

have been denied on the basis of a legally sustainable consideration or

apprehensions. On that limited scrutiny, the impugned decision cannot be

sustained. The material placed before us does not demonstrate that the

proposed construction would interfere with any identified defence activity.

48. The Respondents have undoubtedly asserted that the land may

be required in future for Officers’ Married Accommodation and other

defence purposes. However, the record does not disclose any concrete

project, sanctioned plan, identified commencement date or immediate

utilisation of these particular plots for such purpose. A general assertion of

future requirement cannot be treated or accepted as an immediate operational

requirement, more so, when such a requirement is being voiced since the last

two decades.

49. Equally significant is the fact that the proposed construction is

not being sought with a view to defeating or circumventing the

Government’s title. The Petitioners accept that the land belongs to the

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Government and that their interest is confined to the subsisting leasehold

rights. They seek only to enjoy the leased premises in accordance with the

permissible residential use during the subsistence of the lease. The

Government’s ownership is, therefore, not diluted merely because

permission to construct is granted. The character of the land as defence land,

remains unaffected. If the Respondents consider that any further or particular

safeguards are necessary, then those safeguards can be incorporated as

conditions while granting permissions. But the Respondents cannot reject a

permissible residential construction merely because there may be a policy

change in the future. Such an approach would convert every regulatory

power into a power to prohibit, which is not the legislative scheme.

50. The lease is renewed until 30.11.2033. The Respondents cannot,

during the subsistence of that term, treat the lease as though it were already

at an end. The fact that only about seven years remain is a consequence of

the contractual term itself and cannot, today, extinguish rights which the

lease otherwise permits. If the competent authority intended that no

construction whatsoever should be permitted during the residual period of

the lease, such a prohibition would have been incorporated in the document.

The Respondents cannot introduce the same indirectly through an

administrative objection.

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51. The Respondents have not satisfactorily explained why

similarly situated lessees forming part of the same larger parcel, were

permitted to construct, while the present Petitioners have been denied

permission, although the tenure of the leases is stated to expire on the same

date. We are not holding that an erroneous permission granted to another

person creates an indefeasible right in favour of the Petitioners. However,

once a claim of unequal treatment is specifically raised, the State is required

to furnish a rational and intelligible basis for the distinction. Mere reference

to a subsequent audit objection concerning Plot 5-D does not adequately

explain the differential treatment. In these circumstances, we are of the view

that the refusal of permission is unwarranted. We may also observe that the

decision making process must be tested on the reasons which actually

informed the decision. The elaboration of reasons in affidavits filed before

this Court cannot cure an otherwise infirm decision-making process.

52. For all the above reason, the impugned communications/orders

refusing permission to the Petitioners to construct the proposed residential

bungalows cannot be sustained and are liable to be quashed and set aside.

Needless to state, permission to construct shall not confer upon the

Petitioners any right to renewal of the lease beyond 30.11.2033, nor shall the

Petitioners be entitled to claim any equity merely on account of the

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construction. Any decision concerning renewal, continuation or resumption

after expiry of the present lease shall remain open to the competent authority

and shall be governed by the law and policy applicable at the relevant time.

53. We do appreciate the serious apprehensions voiced by the

Respondents. If any of the said apprehensions happen to be true, the

Respondents would be in a difficulty. However, we find that the

Respondents’ apprehensions have already been put to rest completely, by the

Petitioners, vide their statement made to the Court, which was recorded in

the order dated 20.01.2026. These undertakings are reproduced in paragraph

7 of this judgment, for reference. A single glance at the eight statements

made by the Petitioners would indicate that the entire apprehensions of the

Respondents would not survive.

In addition to the same, we deem it proper to impose two more

conditions on the Petitioners, while granting them the permission to

construct, as follows: -

(a) As like lease land holder of Plot No.5-D, who created third party

rights in favour of Kumar Builder, these Petitioners would not create any

such right in favour of any builder/developer/promoter, etc., directly or

indirectly;

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(b) If these Petitioners create any such rights, in violation of the

undertakings or the directions of this Court, such acts would be rendered

illegal and

non est and no equities or enforceable rights would be created in

favour of such property developer/entity, etc., and;

Notwithstanding the undertaking given by the Petitioners, which

is recorded in our order dated 20.01.2026, each of the Petitioners would

submit their individual affidavits containing all the eight conditions set out in

the order dated 20.01.2026, as well as the above stated two directions, and

such affidavit undertakings in original form would be tendered to

Respondent No.1 and Respondent No.3. A Notarized copy of the original

affidavit undertakings shall be filed in this Court, within 15 days from today.

54. Considering the above and the directions being issued,

both

these Writ Petitions are allowed in terms of prayer Clause (a) and (b),

reproduced above. The Respondents would issue the appropriate

permissions, only after compliance of the above directions, within 30 days.

To ensure proper compliance, we are listing these Petitions on 23

rd

October,

2026 in the ‘Urgent Supplementary Board’ for recording compliance.

55. Rule is made absolute in the above terms.

[GAUTAM A. ANKHAD, J.] [ACTING CHIEF JUSTICE]

41

PRAVIN

DASHARATH

PANDIT

Digitally signed

by PRAVIN

DASHARATH

PANDIT

Date:

2026.09.07

12:13:02 +0530