PRITHVI RAJ, J.

( 1 ) THE petitioners who are the joint owners of free-hold land comprised in Khasra

No. 1066, Survey No. CB 34 (Old) situate in village Naraina through this writ petition

seek a declaration that the sanction applied for by them in their notice dated 29th

June, 1970 (Annexure No. I), under Section 179 of the Cantonments Act, 1924

(hereinafter to be called the Act) served on the Executive Officer of respondent No.

1 intimating the intention of the petitioners to erect cinema house on the land in

question, is deemed to have been unconditionally granted under Section 181 of the

Act and that resolution No. 32, dated the 7th October, 1970, Annexure 5, passed by

respondent No. 1 is illegal, unauthorised and without jurisdiction. A further

declaration is sought that respondent No. 1 is legally obliged to consider the

application dated the 12th August, 1971, Annexure No. 6, seeking extension of time

for construction of the cinema house as the statutory sanction for construction of

the building was deemed to have been accorded to the petitioners under Section

181 (6) of the Act which was valid for a period of one year which period expired on

16th August, 1971, as respondent No. 1 had neglected and omitted to consider the

said application, Annexure No. 6.

( 2 ) THE petitioners further pray that an order, direction or writ in the nature of a

writ of certiorari quashing resolution No. 32, dated 7th October, 1970, be issued and

a further order, direction or writ in the nature of mandamus directing respondent

No. 1 to consider in accordance with law petitioners application dated 12th August,

1971, for extension of period of time, is also sought to be issued.

( 3 ) THE case of the petitioners is that they applied to respondent No. 1 on 29th

June, 1970, by giving a valid notice in writing as envisaged under Section 180 of the

Act, Annexure No. 1, seeking sanction for construction of a cinema house on their

plot, referred to earlier; that respondent No. 1 received the said notice in its office

on the same date. e. , the 29th June, 1970; that respondent No. 1 was obliged to

consider the aforesaid notice within one month after its receipt and if the Board

neglected or omitted to consider the notice within one month after its receipt, the

plan submitted was deemed to have been sanctioned under the provisions of

Section 181 of the Act as the petitioners after serving the notice dated 29th June,

1970, sent by registered post to respondent No. 1, sent another notice dated 30th

July, 1970, Annexure No. 9, which was duly received in the office of respondent No.

1 on 31st July, 1970, copy of the postal acknowledgement being annexure No. 3,

calling attention of the Board to the neglect and omission and that despite the

receipt of that notice, the neglect and omission to make and deliver to the

petitioners order under Section 181 of the Act, continued for a further period of 15

days from the date of receipt of notice dated the 31st July, 1970. It is accordingly

averred by the petitioners that the consequence of the neglect and omission by

respondent No. 1 to make and deliver to the petitioners any order on the notice is

that respondent No. 1 was deemed to have unconditionally given sanction to the

erection of the cinema building applied for by the petitioners by notice in writing,

Annexure No. 1.

( 4 ) HOWEVER, the petitioners aver, sometime in the last week of October, 1970,

beyond the period of 15 days from the date of receipt of the registered

Acknowledgement Due communication by respondent No. 1, they received letter

dated 20th October, 1970, Annexure No. 4, intimating that notice for erection of

cinema was rejected by respondent No. 1 by resolution No. 32 dated 7th October,

1970. The petitioners accordingly contend that the aforesaid communication is

unauthorised, illegal, unwarranted and beyond the power and authority of

respondent No. 1 and that the petitioners are within their right to disregard the

above said resolution. Further submission of the petitioners is that every sanction for

erection or re-erection of building given or deemed to have been given by

respondent No. 1 is available for one year from the date on which it is given; that in

case of the petitioners the sanction was deemed to have been given on 17th

August, 1970, and the period of one year expired on the 16th August, 1971; that by

application dated 12th August, 1971, Annexure No. 6, the petitioners requested

respondent No. 1 to allow extension of that period of one year; that respondent No.

1 vide its letter dated 25th August, 1971, Annexure No. 7, in- formed the petitioners

that the petitioners letter dated 12th August, 1971, was "not understood" as notice

of the petitioners for construction of cinema stood already rejected by resolution No.

32 dated 7th October, 1970.

( 5 ) THE petitioners, therefore, aver that respondent No. 1 is in error and is legally

obliged to consider the application of the petitioners for extension of the period for

construction of the cinema house.

( 6 ) THE grievance of the petitioners is that in resolution No. 32, Annexure No. 5,

reasons for rejecting the notice are stated to be, (a) the land where the proposed

cinema house is to be constructed falls Within the limits for which the Delhi

Development Authority has already published notifications for acquisition of the land

under Sections 4 and 6 of the Land Acquisition Act, 1894, and (b) and M. E. O. ,

Delhi Cantt. , has also raised an objection that the land in question is required for

further expansion of C. O. D. , but respondent No. 1 had sanctioned the building

plans of other persons vide resolutions, Annexures Nos. 11 to 16 although the

notifications for acquisition of land under Ss. 4 and 6 of the Land Acquisition Act,

1894, and the inclusion of the land in question in the expansion of the C. O. D. are

applicable to may of them. In the circumstances, the petitioners allege that their

notice and the plan submitted for erection of a cinema house on the plot in question

have been rejected by respondent No. 1 on a totally irrelevant and extraneous

consideration. Accordingly the present writ petition has been filed seeking the

reliefs, as already stated in an earlier part of this judgment.

( 7 ) SHRI D. R. Paul, Cantonment Executive Officer, Delhi Cantonment filed reply affidavit on behalf of respondents Nos. 1 and 2 stating that in August, 1969, the

petitioners had given notice of their intention to erect a cinema building under

Section 179 of the Act which notice was not sanctioned by respondent No. 2 and the

plans were rejected vide resolution No. 8 dated 10th October, 1969; that from the

record it appeared that the petitioners had re-submitted the said plans which were

rejected along with a notice of intention to erect a building, vide application dated

22nd April, 1970, purporting to be under Section 179 of the Act; that on 10th June,

1970, the petitioners had sent a notice purporting to be under Section 181 of the

Act for delivery of the plans within 15 days; that the petitioners, vide communication

dated 18th June, 1970, Annexure a, were informed that the plans had already been

rejected in October, 1969, and that the petitioners should not proceed with any type

of construction on the said site; that having regard to Section 178-A to Section 186,

no valid notice of intention to erect a building was given to the Board; that if the

petitioners had any grievance against the refusal of the Board to sanction any

building plans, they ought to have had recourse to the provision of the Act for

appeal to the Competent Authority as provided in Section 274 of the Act.

( 8 ) SHRI Ram Murti, Military Estate Officer respondent No. 3 in his reply affidavit

has resisted the writ on the ground that the petition discloses no causes of action

against the said respondent and neither any relief is sought against him; that the

petitioner is precluded to invoke the extra-ordinary jurisdiction of this Court under

Article 226 of the Constitution of India having failed to avail of the remedy by way of

an appeal as envisaged under the provisions of the Act; that the land where the

proposed cinema is to be constructed falls within the limits of the notification made

under Sections 4 and 6 of the Land Acquisition Act; that it is incorrect on the part of

the petitioner to say that the user of the plot in question is not restricted; that land

is being acquired for the use of military authorities and the land in question along

with other land is earmarked for transfer to the military authorities for exercises/

manoeuvres of the armed forces and expansion of the Central Ordnance Depot for

which purpose the land in question is being acquired by respondent No. 4 and that

the land in question as shown in the Master Plan cannot be used for any purpose

other than the purpose earmarked in the said Master Plan.

( 9 ) A reply was filed by Shri H. N. Fotedar, Secretary, Delhi Development Authority,

respondent No. 4. It is alleged by the said respondent that since no relief is sought

against the answering respondent the writ petition against the answering

respondent be dismissed; that the land has been notified for acquisition by the Delhi

Administration who is necessary party to the said writ petition; that the zoning

regulations of the Master Plan provide that the cinemas be located only in District

Centres, Sub-District Centre or in Community Centre and have to form the part of

the comprehensive approved scheme duly sanctioned under the provisions of the

Master Plan as well as under the building bye-laws of the local body concerned; that

in the circumstances no haphazard construction of a cinema can be permitted on a

land notified for the planned development of Delhi; that the plan was rightly

rejected by the Delhi Cantonment Board because the land in question has been

notified for acquisition for the planned development of Delhi and plan submitted by

the petitioner was not located either in an area where a cinema could be permitted

nor does it form a part of any of the comprehensive schemes and that it is wrong on

the part of the petitioner to contend that the land in question has no use in the

Master Plan, on the contrary the use specified in the Master Plan is for Govt.

purposes and the specific purpose of the Government can be determined on a later

stage according to the needs of Government.

( 10 ) THE petitioners in their rejoinder affidavit have stated that the notice to erect

a cinema building in August, 1969 which is alleged to have been rejected by

Resolution No. 8 of October 10, 1969 is not the subject-matter of the petition and is

not relevant; that there is no bar against submission of a fresh plan; that. the

petitioners Were not able to begin the erection of building on account of the paucity

of the building material and also in view of the strange attitude adopted by the

Cantonment Board; that the building involved an expenditure of about Rs. 25 lacs

and further formalities under the Cinematographic Act and Rules made thereunder;

that it also involved application for power to the Delhi Electric Supply Undertaking

which it would not be possible to procure without first showing a sanction or even a

deemed sanction and in the circumstances it does not lie with respondents Nos. 1

and 2 to blame the petitioners for not starting the construction as such a huge

outlay or expenditure would not be done without first ensuring that it would not go

waste while the attitude of respondents Nos. 1 and 2 was, and is, that expenditure

should have gone waste.

( 11 ) MR. P. N. Lekhi, the learned counsel appearing for the petitioners vehemently

contended that the plan submitted by the petitioners for sanction for constructing a

cinema building vide notice dated June 29, 1970 is deemed to have been sanctioned

and in that view of the matter the petitioners are within their right to invoke the

extraordinary writ jurisdiction of this Court for seeking the reliefs sought in the writ

petition. The learned counsel further contended that it is obligatory on respondent

No. 2 Cantonment Executive Officer to allow an extension and that the petitioners

cannot be discriminated against arbitrarily due to the unjustifiable action of

respondents Nos. 1 and 2. In the circumstances, it was vehemently urged that

respondent No. 1 Cantonment Board, Delhi Cantonment, can be compelled to

consider the application of the petitioners for extension of time as the sanction

deemed to have been granted has not lapsed under the provisions of Section 183 of

the Act.

( 12 ) WITH a view to appreciate the contentions of the parties it would be relevant

here to refer to the various provisions of the Act. Sub-section (1) of Section 179 of

the Act enjoins that whoever intends to erect or re-erect any building in a

Cantonment shall apply for sanction by giving notice in writing of his intention to the

Board. Section 180 of the Act prescribes the condition of a valid notice. Sub-section

(1) of Section 180 prescribes that a person giving the notice required by Section 179

shall specify the purpose for which it is intended to use the building to which such

notice relates. According to sub-section (2) of the said section no notice shall be

valid until the information required under sub-section (1) and any further

information and plans which may be required under bye-laws made under the Act

have been furnished to the satisfaction of the Board along with the notice. Section

181 of the Act sets out the powers of the Board to sanction or refuse a plan. The

said section lays down that the Board may either refuse to sanction the erection or

re-erection, as the case may be, of the building, or may sanction it either absolutely

or subject to such directions as it thinks fit to make in writing in respect of all or any

of the matters enumerated in sub-section (1) of the said section. Sub-section (2) of

the said section empowers the Board to refuse to sanction the erection or reerection

of any building on grounds stated in the sub-section which are not relevant

for the -purpose of this petition. Sub-section (3) empowers the Board, before

sanctioning the erection or re-erection of a building on land which is under the

management of the Military Estates Officer to refer the application to the Military

Estates Officer for ascertaining whether there is any objection on the part of the

Government to such erection or re-erection; sub-section (5) enjoins that if the Board

decides to refuse to sanction the erection or re-erection of the building, it shall

communicate in writing the reasons for such refusal to the person by whom notice

was given. Sub-section (6) lays down that where the Board neglects or omits, for

one month after the receipt of a valid notice, to make and to deliver to the person

who has given the notice any order of any nature specified in Section 181, and such

person thereafter by a written communication sent by registered post to the Board

calls the attention of the Board to the neglect or omission, then, if such neglect or

omission continues for a further period of fifteen days from the date of such

communication the Board shall be deemed to have given sanction to the erection or

re-erection, as the case may be, unconditionally. Proviso to the sub-section,

however, prescribes that, in any case to which provisions of sub-section (3) apply,

the period of one month therein specified shall be reckoned from the date on which

the Board had received report, referred to in that sub-section.

( 13 ) MR. P. N. Lekhi, the learned counsel for the petitioners strongly relying upon

the provisions contained in sub-section (6) of Section 181 of the Act vehemently

urged that the petitioners applied to respondent No. 1 on June 29, 1970 by giving a

valid notice (annexure No. 1) in writing as required by Sections 179 and 180 of the

Act whereby the petitioners sought sanction for construction of cinema house on the

plot and since the said notice was received by respondent No. 1 in their office, on

the same date the said respondent was obliged to consider the aforesaid notice

within one month after its receipt. Since the respondent No. 1, it was urged,

neglected/ omitted to consider the notice within one month after its receipt the

petitioners sent another notice by registered post (annexure No. 2) dated 30th July,

1970 which was duly received in the office of the respondent No. 1 on 31st July,

1970 as is borne out from the copy of the postal acknowledgement receipt

(annexure No. 3) whereby the attention of respondent No. 1 was drawn to the

neglect/omission committed by it in not considering the notice annexure No. 1

within one month of its receipt and since neglect and omission on the part of

respondent No. 1 continued for a further period of 15 days from the date of the

receipt of the notice viz. on 31st July, 1970 the requisite sanction is to be deemed to

have been unconditionally given for the erection of the cinema building. In respect

of the above contention, the learned counsel for the petitioners relied on Smt. Kamla

Bhandari v. Chief Commr. , 1965 Delhi LT 331 in which case petitioner No. 2 applied

to respondents Nos. 2 to 4 for sanction of a layout plan but the same was not

sanctioned within the stipulated period of 60 days as provided in Section 313 of the

Delhi Municipal Act, 1957 which Section envisages that no person shall utilise, sell or

otherwise deal with any land or layout or make any new structure without or

otherwise than in conformity With the orders of the standing committee. Proviso to

the said Section, however, imposes an obligation on the concerned authority that

the passing of such orders shall not be in any case delayed for more than 60 days.

It was accordingly contended in that case that in terms of Section 313 and

particularly in terms of delay of more than 60 days on the part of respondent No. 3,

the petitioners cannot be stopped from utilizing or otherwise dealing with their

lands. The contention of the petitioner was upheld and it was observed. "there is no

doubt that the provision of law relied upon by the petitioners does support their

view point. "reliance was also placed on P. K. Ramaswamy v. Municipality of

Coimbatore, (1968) 1 Mad LJ 199. In that case the petitioner applied to Municipality

on 27th April, 1961, under Section 250 of the District Municipalities Act for

permission to install machinery for starting a flour mill in his premises. No order was

communicated to the petitioner within 30 days by the Municipality. Relying upon the

provision in Section 321 (11) of the District Municipalities Act, the petitioner

assumed that his application had been allowed and put up the machinery.

Subsequently on July 31, 1964, the concerned authorities passed orders rejecting

the application. The petitioner challenged that order. In that connection the Court

observed that in the circumstances of the case the petitioner was justified in

contending that his application must be deemed to have been granted by the

Municipality under Section 321 (11) of the Act. Reliance next was placed on

Municipal Committee, Hoshiarpur v. Darshan Lal. AIR 1946 Lah 413. In that case

respondent made an application on December 14, 1942 for necessary sanction to

erect a tharra and amanchas on his land. No orders were passed on his application

for more than 2 months. The application was, however, rejected by a Resolution

passed by the Municipal Committee on February 22, 1943. Not having received a

reply within the time prescribed by law, the respondent completed the construction.

The Municipal Committee gave a notice to the respondent to demolish the

construction erected after February 13, 1943. The respondent instituted a suit for an

injunction restraining the Municipal Committee from enforcing its notice taking the

plea that since his application was not rejected within the stipulated period, it is

presumed that the same was deemed to have been sanctioned. Dealing with the

contention the Court observed. ". . . . . . THERE is no doubt that the Municipal

Committee had no power left to issue a notice under Section 195, Punjab Municipal

Act, after a sanction to build was either given by it or is deemed to have been given

by the lapse of the statutory period of sixty days fixed by Section 193 (4), Punjab

Municipal Act. . . . . . . . . . . . After the expiry of that period the application must be

deemed to have been sanctioned. "

( 14 ) THE contention of the learned counsel for the petitioners that the plans

submitted by the petitioners were deemed to have been sanctioned appears to be

well founded and is fully supported by the provisions of sub-section (6) of the

Section 181 of the Act. The petitioners served a notice in terms of Section 179 of the

Act on June 29, 1970 (annexure No. 1) and the Board neglected to make or deliver

to the petitioners any order within one month after the receipt of the said notice.

The petitioners thereafter by a registered letter dated June 30, 1970 (annexure No.

2) called the attention of the Board to the neglect/ omission committed by the

Board. This written communication was received by the Board in its office on July

31, 1970 as is borne out from the copy of the acknowledgement receipt annexure

No. 3. The neglect/omission to make an order on the notice of the petitioners

(annexure No. 1) continued for a further period of 15 days from 31st July, 1970.

That being so the Board was deemed to have given sanction to the erection of the

cinema house in terms of sub-section (6) of Section 181. The Legislature in subsection (6) of Section 181 has designedly used the words "deemed to have given

sanction" if the neglect or omission continues for a further period of 15 days from

the date on which the attention of the Board is invited in writing to the

neglect/omission committed by the Board for not making an order within one month

of the receipt of notice from a party intimating his intention to erect or re-erect a

building. Since the words used in sub-section (6) of Section 181 are "deemed to

have given sanction" there is no option but to carry the deeming provision of the

law to its logical conclusion and hold that in the absence of any orders passed by

the Board rejecting the application within the statutory period, the sanction stood

granted by operation of law as is implicit in the language of sub-section (6) of

Section 181. This view finds support from the cases already noted above.

( 15 ) NO support can be drawn by the Board from the assertion made by it that

notice (annexure No. 2) is not forthcoming from its record. If the said notice has

been lost in the office of the Board, the petitioners cannot be penalised for it as

admittedly the notice was received in the office of the Board on July 31st, 1970 vide

annexure No. 3. In this connection all that respondent No. 1 in para 5 of its affidavit

has said is, "from the records relating to the building applications maintained in the

office of respondent No. 1, no notice dated July 30, 1970 is traceable and I am not

in a position to deal with the same". It may, however, be noted that the petitioners

in para 8 of their petition have categorically averred:". . . . . . THE petitioners

thereafter sent by registered post to it (respondent No. 1) notice dated July 30,

1970 true copy annexed is annexure No. 2 which was duly received in the office of

the said respondent on 31st July, 1970 true copy of the postal acknowledgement

copy whereof is annexure No. 3. The respondent has not denied that the said notice

was not received by it. All that respondent No. 1 has alleged is that the said notice is

not traceable from its record. For this lapse on the part of respondent No. 1, the

petitioners cannot be made to suffer. "

( 16 ) EQUALLY devoid of force is the other contention of the respondents to the

effect that in August, 1969, the petitioners had given notice of their intention to

erect the cinema building under Section 179 of the Cantonments Act, 1924, which

application was not sanctioned and the plans were rejected by Resolution No. 8 of

October 10, 1969 and that the petitioners had re-submitted the rejected plans along

with a notice of intention to erect the building Tide their application dated June 29,

1970, purporting to be under Section 179 of the Act; that on July 30, 1970 the

petitioners had sent a notice purporting to be under Section 181 (6) of the Act for

delivery of the plans within 15 days; although vide communication dated June 18,

1970, the petitioners had already been informed that the plans had been rejected in

October, 1969 and that after refusal of the Board to sanction the plans submitted by

the petitioners in August, 1969, re-submission of the same plans in 1970 is not valid.

The petitioners during the course of arguments placed on record letter No. 4/bp-

16/41 dated June 24, 1970 from Shri V. K. Budhiraja. Cantonment Executive Officer,

Delhi Cantonment sent under registered A. D. post to the petitioners, in which the

petitioners were informed that a part of the site for cinema falls within the proposed

widening of Ring Road by Delhi Development Authority who had instructed the

Cantonment Executive Officer that no construction within the proposed area to be

widened be sanctioned. The petitioners in view of the stand taken by the Delhi

Development Authority were informed in the abovesaid letter that the plans for

proposed cinema building be submitted afresh as the plans already submitted by the

petitioners had been returned to them by the Cantonment Officer in his letter No.

4/bp-16/40 dated June 18, 1970. Respondents in the above- said letter had asked

the petitioners to submit fresh plans for proposed cinema building and it was in

pursuance to the said advice that the petitioners gave notice on June 29, 1970. The

respondents have not placed any material on the record to show that the fresh plan

submitted was identical with the plan already submitted. Even if it was so the

respondent No. 1 was bound to take action on notice dated June 29, 1970 and if

respondent No. 1 considered that the plan submitted was exactly the same which

had been rejected earlier, it was incumbent on respondent No. 1 to pass an order

rejecting the plan within the stipulated period of one month from the receipt of

notice dated June 29, 1970 in terms of sub-section (6) of Section 181. Having failed

to do so and further in neglecting to take action within 15 days from 31st July, 1970

after the receipt of notice annexure No. 2, it is futile for the Board to contend that

no valid notice was served as the plan submitted with notice dated June 29, 1970

was the same which was rejected earlier by Resolution No. 8 dated October 10,

1969. There is equally no merit in the submission of the respondents that the

present petition cannot be entertained as the petitioners have not availed of the

remedy available to them by way of an appeal as was open to them under Section

274 of the Act because the petitioners submitted fresh plan along with notice under

Section 179 in pursuance to the letter No. 4/bp-16/41 dated June 24, 1970.

( 17 ) AS held in an earlier part of this judgment that the plan submitted by the

petitioners with their notice dated June 29, 1970 was deemed to have been

sanctioned on the expiry of 15 days after the receipt of notice annexure No. 2 the

petitioners were within their right to construct the cinema building within a period of

one year from 16th of August, 1970 which sanction lapsed on the expiry of one year

by August 16, 1971.

( 18 ) IT would be relevant here to refer to the provisions of Section 183 of the Act

which are as follows: "every sanction for the erection or re-erection of a building

given or deemed to have been given by the Board as herein-before provided shall

be available for one year from the date on which it is given, and if the building so

sanctioned is not begun by the person who has obtained the sanction or some one

lawfully claiming under him within that period, it shall not thereafter be begun

unless the Board on application made therefore has allowed an extension of that

period. "

( 19 ) NOW the contention of Mr. P. N. Lekhi, the learned counsel for the petitioners

is that it being open to the petitioners to make an application seeking an extension

of time for the construction of the cinema house as required by Section 183,

respondent No. 1 is obliged to consider on merits the application dated August 12,

1971 submitted by the petitioners for extension of time and that the said respondent

has on irrelevant considerations not considered the application of the petitioners for

extension of time.

( 20 ) I am afraid there is no force in this contention. The reasons for not

proceeding with the construction of the cinema building are given by the petitioners

in para 10 of their rejoinder affidavit in rebuttal to the reply affidavit filed by

respondents Nos. 1 and 2. The reasons given are as follows:"the petitioners were

not able to begin the erection of the building on account of the paucity of the

building material and also in view of the strange attitude adopted by the

Cantonment Board. It would be appreciated that the building involved an

expenditure of about Rs. 25 lacs and further formalities under the Cinematographic

Act and Rules made thereunder. It also involved application for power to the Delhi

Electric Supply Undertaking which it would not be possible to procure without first

showing a sanction or even a deemed sanction in view of Annexure No. 5 already

annexed to the petition. It does not lie with the answering respondents to blame the

petitioners for not starting the construction as such a huge outlay or expenditure

would not be done without first ensuring that it would not go waste and the attitude

of the answering respondents was, and is, that such expenditure should have gone

waste. "

( 21 ) FROM the above averment, it is evident that the main and probably the only

reason for not starting and completing construction of the building within the

stipulated period of one year from 16th August, 1970, the date when the plan of the

petitioners was deemed to have been sanctioned on account of the neglect/omission

committed by the Board in not rejecting the plan within the prescribed period, was

"because of the strange attitude adopted by the Cantonment Board" in considering

that the plan had already been rejected in October, 1969; although a feeble attempt

was also made by the petitioners to contend that they were not able to begin

construction on account of the paucity of the building material. It may be stated

here that no material has been placed on the record by the petitioners to prove that

despite their efforts they were not able to procure material for the construction of

the building on account of the paucity of the material in the market. If the

contention regarding the paucity of the building material for want of evidence is

ruled out then the only ground on which the petitioners desisted from starting the

construction was the "strange attitude adopted by the Cantonment Board". The

petitioners were very well aware that the sanction to construct the building was

deemed to have been given in terms of the provisions of sub-section (6) of Section

181 and that being the main plank of their argument in this writ petition it is not

open to the petitioners to blame the Cantonment Board for not starting the

construction in view of the alleged "strange attitude adopted by the Board. " The

petitioners having sat on the fence, not availed of the sanction deemed to have

been given, cannot now urge that a writ of mandamus be issued directing

respondent No. 1 to consider the application dated August 12, 1971 for the

extension of the period of time for putting up the cinema building. There is another

reason as well for not granting this relief. The Military Estates Officer, respondent

No. 3 in paras 31 and 32 of his reply affidavit has stated that the land in question

along with other land is earmarked for transfer to the military authorities for

exercises/ manoeuvres of the armed forces and expansion of the Central Ordnance

Depot and the land in question is being acquired by respondent No. 4. That being so

respondents Nos. 1 and 2 have rightly contended that the land in question has been

notified by the Delhi Development Authority for acquisition under Sections 4 and 6

of the Land Acquisition Act which acquisition is being sought for a public purpose. It

may be noted here that the petitioners had challenged the Notification under

Sections 4 and 6 of the Land Acquisition Act in Civil Writ No. 946 of 1970 which is

pending in this Court.

( 22 ) THERE is no merit in the contention of the learned counsel for the petitioners

that the mere fact that the land has been notified for acquisition under Sections 4

and 6 of the Land Acquisition Act is not a relevant consideration for not considering

the application of the petitioners dated August 12, 1971 (annexure 6) seeking

extension of time. The precise contention is that all that is required for the Board to

consider is whether the application (annexure 6) is in conformity with the

provisions of the Act or not. If the. said application conforms to the provisions of the

Act, goes the argument, there is ,no option for the Board but to grant extension of

time and that the petitioners undertaking the construction would be doing so at their

own peril because in case if the petitioners fail in the writ petition No. 946 of 1970

and Notifications issued under Sections 4 and 6 of the Land Acquisition Act in

respect of the land in question are sustained all that the authorities can do is to call

upon the petitioners to remove the structure set up on the land in dispute after the

date of Notification under Sections 4 and 6 and give possession of the area to the

Land Acquisition Collector. To adopt this course would be an exercise in futility.

There is no bar on the petitioners to apply afresh seeking permission of the Board

for erecting cinema house. If the contentions of the petitioner in Civil Writ Petition

No. 946 of 1970 are upheld and the Notification under Sections 4 and 6 of the Land

Acquisition Act are struck down, the land in question is released, the petitioners can

very well apply again for seeking permission to construct the cinema building.

( 23 ) ANOTHER contention of the petitioners is this according to the Master Plan

the triangular area in which the plot of the petitioners is situated is shown as "no

use". That being so, it is urged by the petitioners that the land being of no use to

the respondents it was proper to allow the petitioners to use the land by

constructing cinema on it. Respondent No. 4, Delhi Development Authority, in its

reply affidavit have submitted that the zoning regulations of the Master Plan provide

that the cinemas be located only in District Centre, Sub-District Centre or in

Community Centre and have to form the part of the comprehensive approved

scheme duly sanctioned under the provisions of the Master Plan and that no

haphazard construction of a cinema can be permitted on a land notified for the

planned development of Delhi. Further, the said respondent has stated that the plan

submitted by the petitioners was located neither in an area where a cinema could be

permitted nor does it form a part of any comprehensive approved scheme.

Moreover, it is further submitted by the respondent in para 38 of its reply that as

per Master Plan the use of the land in question is specified for Government purpose

and the specific purpose of the Government can be determined on a later stage

according to the needs of the Government.

( 24 ) IN view of the averments of the respondents as set out above, I am of the

opinion that the allegation of the petitioners that the use of the land in question is

shown as "no use" has no force and relevance. However, this is a question which

the petitioners have agitated in their writ petition No. 946 of 1970 wherein they

have challenged the Notifications issued under Sections 4 and 6 of the Land

Acquisition Act in respect of this land and the Court dealing with the said writ

petition in my opinion would be the proper forum for dealing with this contention.

( 25 ) FOR the reasons stated above, the writ petition is allowed to this extent that

the plan for construction of the cinema submitted with notice dated June 29, 1970

(Annexure No. 1) would be deemed to have been sanctioned on the expiry of 15

days with effect from July 31, 1971 on the receipt of notice (Annexure No. 2), and

Resolution No. 32 dated October 7, 1970 (Annexure No. 5) is quashed. However,

the writ is dismissed in respect of other prayers, In the circumstances of the case,

the parties shall bear their own costs.