Pune: The Bombay High Court has directed the defence estates and Southern Command authorities to allow construction of residential bungalows on two long-term leasehold plots in Pune Cantonment, ruling that a general apprehension that the defence ministry may require the land in future cannot override the contractual and statutory rights of existing leaseholders.A division bench comprising acting chief justice Ravindra V. Ghuge and Justice Gautam A. Ankhad, in a judgement pronounced on Sept 7, allowed two writ petitions challenging the rejection of building permissions for plots forming part of the Old Bungalow No. 5 property in the Pune Cantonment.The court directed the authorities to issue the requisite construction permissions within 30 days, subject to compliance with the conditions imposed in the judgement. The petitions have been listed for compliance on Oct 23.The defence authorities had opposed the proposed construction, contending that the land remained defence property and could be required in the future for military purposes, including married accommodation for officers.The high court, however, observed that no concrete project, sanctioned plan, or identified commencement date had been placed before it to establish an immediate requirement for these specific plots. The court held that a mere possibility of future defence use could not be treated as an immediate operational necessity so as to deny construction during the subsistence of a valid lease.Leases valid till 2033The two plots are held under leases valid until Nov 30, 2033. The court noted that the proposed construction was residential and that the authorities had not identified any provision in the subsisting leases or applicable building regulations that prohibited such construction. The judgement, however, makes it clear that the permission to construct does not create any right to a renewal of the leases after 2033. The govt will remain free to decide whether to renew them.Court questions differential treatmentThe court also took note of the petitioners’ contention that similarly placed leaseholders within the same larger property had previously been permitted to construct buildings, even though their leases were due to expire on the same date. The authorities failed to satisfactorily explain this differential treatment, the court observed. It clarified that a previous permission granted erroneously does not automatically confer a right to another person. However, when unequal treatment is alleged, the State must demonstrate a “rational and intelligible basis” for the distinction. The authorities had relied, among other things, on a subsequent audit objection concerning Plot 5-D. The court found that this audit objection did not, by itself, provide an adequate basis for denying construction permission to the present petitioners.Safeguards against commercial developmentThe construction clearance comes with strict safeguards. The petitioners had undertaken that the proposed structures would be used only as their personal residences and would not be converted into apartments, high-rise clusters, or commercial establishments. They also agreed not to create third-party rights and not to claim ex gratia compensation for the construction if the leases were not renewed after 2033 and the property vested with the government. The High Court added that the petitioners cannot create any direct or indirect rights in favor of builders, developers, or promoters. Any such transaction would be treated as illegal and non est, with no enforceable rights accruing to the developer or any other entity. Each petitioner has been directed to file an individual affidavit incorporating the stipulated undertakings. Original affidavits are to be submitted to the Pune Cantonment Board and the General Officer Commanding-in-Chief, while notarized copies are to be filed before the court within 15 days. Meanwhile, the Defence Estates Officer, Vikash Kumar, told TOI, “We are exploring legal options to challenge the order. We are working on it. We can’t divulge information on the matter at this juncture.”
