Bombay High Court
Tci Industries Limited vs The Municipal Corporation Of ... on 19 December, 2011
Bench: P. B. Majmudar, Mridula Bhatkar
KPP -1- WP No. 2859 of 2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2859 OF 2006
TCI Industries Limited )
a public limited company incorporated under the )
provisions of the Companies Act, 1956 and having its )
registered office at 1-7-293, Mahatma Gandhi Road, )
Secunderabad-500 003 )...Petitioner
versus
1. The Municipal Corporation of Greater Bombay,
statutory Corporation incorporated under Bombay
)
)
Municipal Corporation Act, 1888 and having its office )
at Mahapalika Marg, Mumbai-400 001 )
2. Union of India through the Secretary, )
Ministry of Defence and through the Defence Estate )
Officer, Ministry of Defence having its office at Mumbai )
Circle, Near Afghan Church, Colaba, Mumbai-400 005 )
3. State of Maharashtra, through Collector of Mumbai City, )
having its office at Old Custom House, Mumbai. )..Respondents
Mr. Rohit Kapadia, Senior Advocate, with Mr. Pravin Samdani, Senior Advocate,
along with Miss Bindi Dave, Mr. Kunal Vajani, Mr. Ankit Virmani, Mr. Sameer
Pandit and Mr. Ameya Malkan, instructed by M/s. Wadia Ghandy & Co., for the
petitioner.
Ms. P.A. Purandare for respondent No.1.
Mr. D.J. Khambata, Additional Solicitor General, with Mr. Rui Rodrigues and Mr.
S.R. Rajguru for respondent No.2.
Mr. M.D. Naik, Assistant Government Pleader, for respondent No.3.
CORAM: P.B. MAJMUDAR &
MRS. MRIDULA BHATKAR,
JJ.
DATE: DECEMBER 19, 2011.
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ORAL JUDGMENT: (Per P.B. Majmudar, J.)
The petitioner is occupying land admeasuring 10.264 acres located
in the Colaba area of the city of Mumbai. The petitioner is occupying the said
land as a lessee by virtue of the leasehold rights. The petitioner obtained
leasehold rights by virtue of an Indenture of Assignment dated 6th August, 1979
executed between one Tungabhadra Sugar Works and the petitioner. By virtue
of the same, the petitioner is occupying the said piece of land and is entitled to
use the aforesaid property. The ownership rights in respect of the said property
are duly reflected in the PR cards. In order to carry out development work, the
petitioner took steps for clearing the dues of the workmen of the mill standing
on the said property i.e. Mukesh Mills. According to the petitioner, they
incurred about Rs. 17 crores in this behalf.
2. In order to obtain development permission, the petitioner carried
out certain search and they came to know that Respondent No.2, Union of
India, is asserting its rights over the property. The petitioner, in the meanwhile
also came across a newspaper article published by Respondent No.2 in the
Times of India dated 2nd December, 2004, stating that the said property was
being acquired for constructing helipad for civilian flights. According to the
petitioner, respondent No.2, therefore, wanted to acquire the said piece of land
for the purpose of constructing helipad and for expanding its naval base. In
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connection with the development permission sought for by the petitioner from
the Municipal Corporation of greater Mumbai, respondent No.2 addressed a
letter to respondent No. 1 pointing out that the said property is part of defence
land and is on lease to the erstwhile Colaba Land & Mill Company. The
Respondent No.2, therefore, asked respondent No.1 not to grant development
permission regarding construction over the said piece of land. In the
meanwhile, correspondence ensued between the petitioner and respondent Nos.
1 and 2. According to the petitioner, respondent No.2 tried to assert its title
over the suit property in view of certain articles in the newspapers. In the
meanwhile, the petitioner sent a letter dated 5th September, 2006 to respondent
No.1 seeking approval/permission in respect of the development of the said
property. The Respondent No.1-Corporation informed the petitioner that
development permission is refused on the ground that as per letter dated 27th
July, 2006, no permission to develop the said property be given without
obtaining NOC from respondent No.2. Since respondent No.1 refused to grant
development permission to the petitioner on that ground that unless no
objection certificate from respondent No.2 is obtained, more particularly from
the Indian Navy, development permission cannot be granted. It is the aforesaid
decision of the Corporation in not granting development permission to the
petitioner that the petitioner has filed this petition challenging the said action.
The petitioner has prayed that appropriate writ, order or direction be issued
calling for the records pertaining to the property in question and to set aside the
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decision of the Corporation in refusing development permission by its letter
dated 22nd September, 2006 in connection with the proposed development of
the said property which the petitioner intended to do. The petitioner also
prayed for issuance of a Fresh Survey Section (City) Report by Respondent No.1
in respect of the said property. The petitioner further prayed for issuing
appropriate writ or order directing Respondent No.2 to refrain from making
any claims in respect of the said property and/or interfering
with/obstructing/preventing the petitioner from developing the said property.
3. During the course of hearing, the learned Senior Counsel for the
petitioner states that the petitioner is not pressing prayer clauses (b) as well as
(d) as this Court cannot decide disputed questions of title in a Writ Petition
under Article 226 of the Constitution of India and would assert its right in
appropriate proceedings by way of filing suit or any other remedy available to
the petitioner in this behalf. Learned counsel for the petitioner submitted that
prayer clause (d) is not pressed in view of the stand taken during the course of
arguments by the learned Additional Solicitor General that they are not
asserting their ownership rights in these proceedings and in view of the said
submission prayer clause (d) is not pressed. It is accordingly clarified that this
Court is not examined the question of title as to whether the Respondent No.2
is the owner of the property in question or whether the property in question
belongs to the State of Maharashtra. That question is kept open for
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consideration in appropriate forum in future, if so required. In these
proceedings, therefore, the Court is only required to consider the aspect as to
whether Respondent No.2 is entitled to object the development permission
which is to be granted by respondent No.1 by insisting that unless their NOC is
obtained, such permission for development cannot be granted.
4. As stated above, the land in question is located at the Victoria
Bunder Road, Colaba, Mumbai. The adjoining property belongs to Defence
Department and the Navy is having its Station known as INS Shikra, which was
earlier known as INS Kunjali. Since the Navy is occupying the adjoining area,
it has refused to grant NOC on the ground of security and in view of the same,
the respondent-Corporation has not sanctioned permission to the petitioner to
develop the said property.
5. In order to find out the location of the property as well as to find out
whether under the relevant Rules and Regulations, the Defence Department is
entitled to prevent development activity in the adjoining area, it is necessary to
find out as to in which manner the petitioner has come into possession of the
said property. It is required to be noted that under an Indenture of Lease dated
9th January, 1878, i.e. the original lease, lease agreement was entered into
between the Secretary of State for India in Council (the lessor) on the one hand
and Colaba Co. Ltd., who was the original lessee. The said lease was registered
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on 24th January, 1878. As per the lease agreement, lease was granted for 999
years with effect from 1st January, 1874. Thereafter several assignments of the
leasehold interest had taken place by virtue of which lessee was entitled to
develop the said property. Ultimately, under the Indenture of Assignment dated
6th August, 1979, one Tungabhadra Sugar Works, who had come to acquire and
hold the leasehold rights in respect of the property, assigned to the petitioner
all the leasehold rights, title and interest in respect of the said property.
According to the petitioner, the petitioner was thus entitled to develop the said
property as per the said assignment and was also entitled to enjoy the said
property for the remaining period of lease, which according to the petitioner,
would be about 871 years. Since a textile mill was also located in the said
portion i.e. Mukesh Mill, which was not functioning, the petitioner, in order to
develop the property also cleared the dues of the workmen of the said mill and
thereafter submitted an application for developing the said property. It is
required to be noted that in the lease deed, the lessee was permitted to develop
the said property. Since it is agreed by both the sides that it is not necessary to
examine the title deeds and to decide as to whether after the Independence and
in view of the provisions of the Govt. of India Act, Union of India has now
become lesser or whether the State Government has become lesser of the said
property. In view of the fact that both the sides have frankly stated that it is not
necessary to examine the title whether the property vests with the Defence
Department or not, the said point is not required to be adjudicated in this
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petition and, as pointed out earlier, the only point which requires consideration
is whether the Navy which occupies the adjoining property having its naval base
is entitled to insist for their NOC for development of the property in the
adjoining area.
6. On behalf of the petitioner, it is submitted by the learned Senior
Counsel Mr. Kapadia that the petitioner is occupying part of the property which
was originally let out to Colaba Company Limited. It is submitted that the
remaining part of the said property is in possession of other lessees, who have
already carried out development in the adjoining area. It is also submitted that
there is a slum in the adjoining portion of the land which the Navy is occupying.
According to Mr. Kapadia, the point of security raised by Navy is nothing but a
bogey for which there is no basis and foundation. According to the learned
Counsel, as per earlier press report published in Times of India by the Defence
Department in 2003, the Navy had already disclosed its stand that they wanted
to have private helipad landing facility in the area which is in occupation of the
petitioner for Pawan Hans helicopter services. It is submitted by Mr. Kapadia
that with a view to assign this land for the purpose of private helicopter services
that the Navy is creating a story of defence which in his submission is not
justified. It is further submitted by Mr. Kapadia that out of the entire area of the
leased property, only one portion is in possession of the petitioner as a lessee
and, according to him, petitioner cannot be deprived to use its property in the
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manner it wants to use. It is submitted that there is no requirement under the
Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as
"the MRTP Act") or under the Development Control Regulations for Greater
Mumbai, 1991 (hereinafter "the D.C. Regulations") for getting NOC from the
Navy and, according to him, once the D.C. Regulation does not provide for such
NOC, the Corporation has committed an error in rejecting the permission
sought for by the petitioner. It is further submitted by Mr. Kapadia that while
granting development permission, the Corporation is required to insist only
those things which are provided under the MRTP Act as well as under the D.C.
Regulations and the Corporation cannot travel beyond the said provisions and
insist something which is not provided under the MRTP Act or the Regulations.
It is further submitted by Mr. Kapadia that even otherwise looking to the
location of the nearby area, it is clear that the security aspect pressed into
service by the Navy is not justified as there are so many high rise buildings
nearby and there is also a slum which is located only just adjoining to Naval
base. It is submitted by Mr. Kapadia that under the Works of Defence Act, 1903
(hereinafter "the Defence Act"), there is a provision under Section (3) regarding
issuing declaration pointing out that no development activity may be provided
in connection with the area qua which declaration is issued under Section 3 of
the Defence Act. Relying on the same, it is submitted by Mr. Kapadia that if
there is any security aspect involved in the matter, the Defence Department
could have issued declaration under Section 3 of the said Act but since no such
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declaration is issued, it is clear that the security point raised in the present
proceedings is without any basis as there is no threat of security in any manner.
It is further submitted by Mr. Kapadia that even for the adjoining premises or
even the slum, no such declaration is issued even till today. It is further
submitted by Mr. Kapadia that the petitioners cannot be deprived of its right to
use the property permanently as on one hand Navy is not acquiring the property
under the provisions of the Act and on the other hand, petitioner is deprived to
develop the property indefinitely for years to come.
8. It is further submitted by Mr. Kapadia that if any administrative
order or circular is issued by the State of Maharashtra asking the development
authority not to sanction the development plan without NOC from the Defence
department, if the Defence Department is having adjoining property, such
administrative order or circular cannot have any binding effect as it is not in
consonance with the statutory provisions contained in the MRTP Act and D.C.
Regulations. Mr. Kapadia has relied upon certain case laws which we will deal
with in the latter part of this judgment.
9. Mr. Khambata, learned Additional Solicitor General, appearing for
the Navy in his turn submitted that the provisions of the MRTP Act cannot be
construed narrowly and so far as the objection of the Navy is concerned
regarding security is most relevant as, according to him, looking to the location
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of the area which the petitioner occupies is just touching the premises of Navy.
It is submitted by Mr. Khambata that if any high rise building is allowed to be
constructed, it may affect the security of INS Shikra. He further submits that
there is a genuine security risk and as such permission cannot be granted to the
adjoining owner for development. It is submitted by Mr. Khambata that so far as
Section 46 of the MRTP Act is concerned, it is only an enabling provision and it
cannot be read narrowly. It is submitted by Mr. Khambata that even if there is
no specific provision in the Development Control Rules, yet as per Section 46 of
the MRTP Act, the Planning Authority is required to apply its mind and required
to call for necessary documents to find out as to whether development
permission can be granted to the property in question. It is submitted by Mr.
Khambata that whether the element of security is involved or not is a question
which is required to be left to the expert authority i.e. Navy and if, according to
the Navy, there is a threat of security if adjoining premises are allowed to be
developed, this Court in its extraordinary jurisdiction under Article 226 of the
Constitution of India may not interfere with such decision. It is submitted by Mr.
Khambata that it is true that in the nearby vicinity there are high rise buildings
and adjoining area also there is a slum located. According to him, if in the past
the permission is granted without insistence for NOC from the Navy, the Navy is
not estopped now from insisting for the same, looking to the present situation
as security aspect can always be reviewed by the authorities from time to time.
It is submitted by Mr. Khambata that even as per the provisions of D.C.
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Regulations, the Planning Authority can insist for such NOC. It is submitted by
Mr. Khambata that simply in the past, some officers had informed the press that
area in question can be utilised for private helicopter services, it cannot be said
that it is binding even at all stages and the authority cannot take a fresh decision
in this behalf. It is also submitted by Mr. Khambata that so far as slum is
concerned, even though there is apprehension of security, yet the apprehension
is much more, if on the adjoining premises high rise building is allowed to be
constructed as from the hight a terrorist can very well target a missile or
damage the naval basis. It is submitted by Mr. Khambata that it is true that
under Section 3 of the Defence Act, a declaration can be issued but that is a very
drastic provision which can be resorted to as a last resort and without resorting
the same, if under any other provision the development work can be permitted,
there is nothing wrong if the authority takes less drastic measure. It is not the
mandate of law that unless notification is issued under Section 3 of the Defence
Act, the Respondents have no right whatsoever refusing NOC for development.
It is submitted by Mr. Khambata that the interest of the petitioner is a
commercial interest as against that there is a national interest regarding security
of the country and between the two, the national interest must prevail.
10. It is further submitted by Mr. Khambata that when expert body like
Navy is of the opinion that if high rise building is allowed to be constructed in
the adjoining area, there will be danger to the security and in such eventuality,
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the decision of the expert body is required to be accepted. It is submitted by Mr.
Khambata that in any case it cannot be said that the stand taken by the Navy is
arbitrary or without any basis or foundation. It is further submitted that the
power of judicial review in such a case is very limited and this Court cannot
substitute the say of the Navy by giving its own conclusion about the security
aspect. It is submitted by Mr. Khambata that subsequently the State
Government has also issued instructions by which the Planning Authority is also
directed to obtain NOC from the Defence Department before granting
development permission to the developer.
10. It is submitted by Mr. Khambata that even subsequently the
petitioner had also submitted its plan to the Corporation wherein the petitioner,
as per the plan, wanted to construct a five star hotel and since the planning
authority rejected the same, the petitioner filed an appeal under Section 47 of
the MRTP Act, which is pending before the State Government. It is submitted
by Mr. Khambata that so far as the Naval base of the Navy is concerned, it is in
full swing and operating so many helicopters of the Navy which is coming every
day and helicopters of VVIPs are landing at the said place. Mr. Khambata
submitted that even recently the American President Mr. Barack Obama was
also landed at this very place. The said naval base is actively used and in fact
important armaments are also kept such as missiles and there is also radar at
the said place. It is submitted that the apprehension of security aspect is not a
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bogey created but it is as such in substance and reality. It is submitted that even
regarding old buildings which are in existence, if any development permission is
asked, Navy will definitely object to the same. It is submitted that the area in
question is a restricted and prohibited area and is governed by the Official
Secrets Act. It is further submitted that it is for the Respondent Navy to exercise
an option and simply because option under Section 3 of the Defence Act is not
exercised, yet other provisions of the Act can be pressed into service, while
refusing to give NOC for development. It is submitted that under Section 154 of
the MRTP Act, the State Government is empowered to give necessary direction
to the planning authority and in this case in fact the same has been given. It is
submitted that by not granting no objection certificate, the Navy Department is
not taking away the property of the petitioner in any manner and, therefore,
reliance placed on Article 300-A of the Constitution of India has no relevance
whatsoever. Mr. Khambata has tried to distinguish the judgments cited by Mr.
Kapadia in this behalf.
11. In rejoinder, Mr. Kapadia has relied upon an unreported judgment
of a Division Bench of this Court in the case of Lok Holding and Construction Ltd.
and others vs. The Municipal Corporation of Greater Mumbai and others1 as also
judgment of the Privy Council in the case of Nazir Ahmad vs. King Emperor2. He
also submitted that the provision in D.C. Regulation 16 regarding public interest
1 Decided on 10th August, 2011 in WP No. 840 of 2011
2 AIR 1936 Privy Council 253 (2)
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cannot be construed in any other sense and the said Regulation is to be
interpreted by giving appropriate meaning of public interest as mentioned in
Regulation 16. According to Mr. Kapadia the security aspect is not covered
under D.C. Regulation 16 and, therefore, the same cannot be pressed into
service.
12. We have heard the learned counsel appearing for the parties at great
length. We have also gone through the provisions of the MRTP Act, the D.C.
Regulations as well as the provisions of the Defence Act, the Aircraft Act, 1934
and the Rules framed thereunder.
13. The principal question which requires to be decided in this petition
is as to whether the Respondent Corporation is justified in insisting for NOC
from the Defence Department in connection with the development activity
which the petitioner wants to carry out in their premises. In order to consider
this aspect, firstly it is necessary to consider the location of the place in question.
Both the sides have relied upon various photographs regarding the exact
location of the place. It is of course not in dispute and it is an admitted fact that
so far as Naval base is concerned, wherein INS Shikra is established, the same is
adjacent to the property of the petitioner. There is also a common compound
wall between the premises of the Navy and the petitioner. The area beyond the
boundary wall belongs to the petitioner where the substantial area is vacant
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area where some grass and some trees are located. The premises in question are
also touching the sea water. So far as Navy premises is concerned, there is also
constructed building which according to Mr. Khambata is utilised for keeping
armaments and missiles. This is the factual position so far as the premises in
question are concerned.
14. It is no doubt true that at some distance there are some high rise
buildings. There is also a slum which is on the other side of the premises of the
Navy. On the basis of the aforesaid location, learned Counsel Mr. Khambata
tried to argue that since there is a common wall between the premises of the
petitioner and Navy, that it is all the more necessary that no construction
activity may be allowed to be carried out in an area which is just adjacent to the
Navy area as anybody can easily climb and jump from one area to another.
On the basis of the aforesaid aspect, it is submitted by Mr. Khambata that the
risk of danger is on the higher side so far as the area of the Petitioner is
concerned as compared to other high rise buildings, whose borders are not
touching the border of the premises of the Navy, as some buildings are located
at some reasonable distance, though the entire leasehold area originally
belonged to Colaba Company Ltd. In order to appreciate the rival contentions,
it is necessary to rely upon the statutory provisions contained in various
enactments.
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15. So far as Municipal Corporation is concerned, the same is a Planning
Authority under the provisions of the MRTP Act, 1966. The Planning Authority
is required to process the development permission as provided under Section 46
of the MRTP Act. Section 46 provides as under:
"46. Provisions of Development plan to be considered before
granting permission.- The Planning Authority in considering
application for permission shall have due regard to the provisions
of any draft or final plan or proposals published by means of
notice submitted or sanctioned under this Act."
15.1 Section 51 of the MRTP Act deals with power of revocation and
modification of permission to development. Section 154 provides about the
control by State Government which reads as under:
"154. Control by State Government.- (1) Every Regional Board,
Planning Authority and Development Authority shall carry out
such directions or instructions as may be issued from time to time
by the State Government for the efficient administration of this
Act.
(2) If in, or his connection with, the exercise of its powers and
discharge of its functions by the Regional Board, Planning
Authority or Development Authority under this Act, any dispute
arises between the Regional Board, Planning Authority, and the
State Government, the decision of the State Government on such
dispute shall be final."
15.2 So far as the Development Control Regulations for Greater Mumbai,
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1991 are concerned, the relevant provisions of Regulation 16 provide as under:
"16. No land shall be used as a site for the construction of
buildings.-
(a) if the Commissioner considers that the site is insanitary or
that it is dangerous to construct a building on it or no water
supply is likely to be available within a reasonable period of time.
.... ...... ....
(e) If the use of the said site is for a purpose which in the
Commissioner's opinion may be a source of danger to the health
and safety of the inhabitants of the neighbourhood;
...
ig .... ....
(n) If the proposed development is likely to involves damage to
or have deleterious impact on or is against urban aesthetics or
environment or ecology and/or historical/architectural/aesthetical
buildings and precincts or is not in the public interest."
15.3 Section 3 of the Works of Defence Act, 1903 provides as under:
"3. Declaration and notice that restrictions will be imposed.- (1)
Whenever it appears to the Central Government that it is
necessary to impose restrictions upon the use and enjoyment of
land in the vicinity of any work of defence or of any site intended
to be used to be acquired for any such work, in order that such
land may be kept free from buildings and other obstructions, a
declaration shall be made to that effect under the signature of a
Secretary to such Government or of some officer duly authorised
to certify its orders.
(2) The said declaration shall be published in the Official Gazette
and shall state the district or other territorial division in which the
land is situate and the place where a sketch plan of the land,
which shall be prepared on a scale not smaller than six inches to
the mile and shall distinguish the boundaries referred to in Sec. 7
may be inspected, and the Collector shall cause public notice of
the substance of the said declaration to be given at convenient
places in the locality.
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(3) The said declaration shall be conclusive proof that it is
necessary to keep the land free from building and other
obstructions."
15.4 So far as helicopter is concerned, it is also considered as an aircraft
under the Aircraft Act, 1934. The Act also prescribes certain provisions in
connection with security of the Airport and aircraft. Section 9A of the Aircraft
Act, 1934 empowers the Central Government to prohibit or regulate
construction of buildings, planting of trees, etc.
16. Relying on the aforesaid provisions, it is submitted by Mr. Kapadia
that unless there is a notification under Section 3 of the Defence Act, the security
aspect cannot be considered by the Planning Authority and it is argued by him
that even under the Aircraft Act, the Central Government can prohibit or
regulate construction and that aspect has also not been done in the present case.
We have considered the aforesaid provisions of the MRTP Act and D.C.
Regulations as well as Section 3 of the Defence Act as well as the Aircraft Act.
17. So far as Section 46 of the MRTP Act is concerned, in our view, it is
not possible for us to give such a restricted meaning as canvassed by the learned
counsel for the petitioner. Under Section 46 of the MRTP Act, the Planning
Authority is required to examine the aspect about granting development
permission in an appropriate manner and by considering the relevant aspects.
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While granting development permission, one of the things which the Planning
Authority is required to consider is to the provisions of the draft or final plan
sanctioned under the Act meaning thereby that if any provision in respect of
anything in the draft or final plan published by means of notice or same is
sanctioned under the Act, the Planning Authority cannot ignore the same and it
has to be taken into consideration. It is impossible for us to accept the say of
Mr. Kapadia that the Planning Authority cannot consider any other thing except
giving due regard to the provisions of the draft or final plan as mentioned in
Section 46 of the MRTP Act. In our view, Section 46 of the MRTP Act cannot be
given such a restricted meaning and it cannot be said that under Section 46, the
Planning Authority cannot consider any other aspect such as security etc. It is
not possible for us to accept the submission of Mr. Kapadia that Section 46 of
the MRTP Act is to be read in such a restrictive manner.
18. It is required to be noted that it is in fact the inherent duty of the
planning authority to apply its mind before giving development permission and
the planning authority is required to keep in mind the pros and cons of such
development permission. For example, if there is a fire brigade station or refinery
or any sensitive object is located at the place nearby the area for which
development permission is sought, the planning authority cannot shut its eyes
and is blindly give sanction only on the basis that, except what is provided in
Section 46, they are not required to call for any other information. On the
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contrary, it is the duty of the planning authority to call for such information
otherwise they will be failing in their duty and they are not required to sanction
blindly by shutting their eyes to the relevant aspect of the matter. In view of the
same, it is not possible for us to accept the submission of Mr. Kapadia that except
what is provided under the MRTP Act and the D.C. Regulations, the planning
authority is not empowered to call for any other information and to straightaway
grant permission and is not required to call for any other information except the
one provided under Section 46 of the MRTP Act or under the D.C. Regulations.
19. In view of what is stated above, no fault can be found with the
Corporation in insisting for NOC from the Defence Department. Even as per the
D.C. Regulation 16 (n), the Planning Authority may refuse to grant permission of
using the land if the proposed development is likely to involve damage or to
have a deleterious impact on or is against the aesthetics or environment or
ecology and/or historical/architectural/aesthetical building and precincts or is
not in the public interest. In our view, public interest cannot be read in line of
what is mentioned under Regulation 16 regarding environment as public interest
have wide connotation and if any particular development activity is found to be
not in public interest, in a given case, the development authority can refuse such
permission. The public interest, therefore, is to be read independently to the
earlier part of the said Regulation i.e. ecology, architectural aspects etc. Reading
the provisions of Section 46 of the MRTP Act, it cannot be said that the
KPP -21- WP No. 2859 of 2006
insistence of the planning authority of NOC of a particular department which,
according to the Planning Authority is in public interest, such insistence cannot
be said to be de hors the provisions of the Act and the Regulations.
20. Section 3 of the Works of Defence Act, 1903 provides for issuance of
declaration and notice. As per the said provision, if the Central Government is
of the opinion to impose restriction upon use and enjoyment of land in the
vicinity, said land is to be kept free from buildings and other obstructions, a
declaration can be issued. It is, however, required to be noted that in the instant
case, the premises which are in possession of the petitioner are concerned, there
is some construction which has already taken place since long, which is of course
not high rise building and the Respondent has not tried to insist upon demolition
of the same, the question for their NOC arose when petitioner wanted to develop
the property by constructing high rise building. Under Section 3 of the said Act,
even the Central Government can acquire the property for national interest. In
the instant case, the defence has not thought it fit to issue such a declaration but
has tried to assert its right under the provisions of the MRTP Act and the
Development Control Regulations by which they have not agreed to give NOC in
view of the security reasons. It, therefore, cannot be said that simply because no
declaration under Section 3 of the Act is issued, the defence was not entitled to
insist for their NOC. It is not possible for us to agree with Mr. Kapadia that
unless notification under Section 3 of the Act is issued, the Respondents have
KPP -22- WP No. 2859 of 2006
no right whatsoever to object for the development carried and/or for refusing to
grant NOC. So far as Section 3 of the Act is concerned, it has no relevancy so
far as insistence of the planning authority regarding no objection from the
Defence Department is concerned. In a given case, even if there is no
notification under Section 3 of the Defence Act, the planning authority can
always insist for NOC from the Defence Department, if the property is located
just adjacent to the premises of the petitioner. So far as Section 3 of the
Defence Act is concerned, the planning authority nowhere figures in the picture
and the petition has been filed against the planning authority against their
insistence of NOC from the Defence Department. While considering the said
aspect, it is not necessary to place any reliance on the provisions of Section 3 of
the Act as in future if the Defence is of the opinion that if any declaration is
issued for acquiring the property, it can always proceed on that basis. In that
eventuality, the planning authority nowhere figures in the picture. Today the
dispute of the petitioner is against the planning authority as according to the
petitioner, the planning authority has no right whatsoever to insist for NOC from
the Defence Department. While considering the said aspect, it is not necessary
that unless there is declaration under Section 3 of the Act, the planning authority
cannot insist for any NOC or might even refuse to grant NOC on the ground of
public interest. It is not possible for us therefore to accept the argument of Mr.
Kapadia that unless there is a declaration under Section 3 of the aforesaid Act, it
is not open for the Navy to raise the point of security which, according to him, is
KPP -23- WP No. 2859 of 2006
nothing but a bogey and concocted version of the Navy.
21. A strong reliance has been placed by Mr. Kapadia on the provisions
of Article 300-A of the Constitution of India. In order to substantiate his say that
the property of the citizen cannot be taken away without paying any
compensation and that the action of Navy therefore is in violation of Article 300-
A of the Constitution of India. In order to substantiate his say, Mr. Kapadia has
relied upon the decision of the Supreme Court in the case of Jilubhai Nanbhai
Khachar and others. Vs. State of Gujarat and another1. The Supreme Court has
considered the provisions of Article 300-A of the Constitution of India. It has
been held as under in paragraphs 42 and 48 of the said judgment as under:
"42. Property in legal sense means an aggregate of rights
which are guaranteed and protected by law. It extends to
every species of valuable right and interest, more particularly,
ownership and exclusive right to a thing, the right to dispose of
the thing in every legal way, to possess it, to use it, and to
exclude everyone else from interfering with it. The dominion
or indefinite right of use or disposition which one may lawfully
exercise over particular things or subject is called property.
The exclusive right of possessing, enjoying, and disposing of a
thing is property in legal parameters. Therefore, the word
'property' connotes everything which is subject of ownership,
corporeal or incorporeal, tangible or intangible, visible or
invisible, real or personal; everything that has an exchangeable
value or which goes to make up wealth or estate or status.
Property, therefore, within the constitutional protection,
denotes group of rights inhering citizen's relation to physical
thing, as right to possess, use and dispose of it in accordance
with law. In Ramanatha Aiyar's The Law Lexicon, Reprint Ed.
1987 at p. 1031 it is stated that the property is the most
1 1995 Supp (1) SCC 596
KPP -24- WP No. 2859 of 2006
comprehensive of all terms which can be used, inasmuch as it
is indicative and descriptive of every possible interest which the
party can have. The term property has a most extensive
signification, and, according to its legal definition, consists in
free use, enjoyment, and disposition by a person of all his
acquisitions, without any control or diminution, save only by
the laws of the land, in Dwarkadas Srinivas's case this Court
gave extended meaning to the word property. Mines, minerals
and quarries are property attracting Article 300A.
48. The word "property" used in Article 300A must be
understood in the context in which the sovereign power of
eminent domain is exercised by the State and Property
expropriated. No abstract principles could be laid. Each case
must be considered in the light of its own facts and setting. The
Phrase 'deprivation of the property of a person' must equally be
considered in the fact situation of a case. Deprivation connotes
different concepts. Article 300A gets attracted to an acquisition
or taking possession of private property, by necessary
implication for public purpose, in accordance with the law
made by the Parliament or a State legislature, a rule or a
statutory order having force of law. It is inherent in every
sovereign State by exercising its power of eminent domain to
expropriate private property without owner's consent. Prima
facie, State would be the judge to decide whether a purpose is
a public purpose. But it is not the sole judge. This will be
subject to judicial review and it is the duty of the Court to
determine whether a particular purpose is a public purpose or
not. Public interest has always been considered to be an
essential ingredient of public purpose. But every public purpose
does not fall under Article 300A nor every exercise of eminent
domain an acquisition or taking possession under Article 300A.
Generally speaking preservation of public health or prevention
of damage to life and property are considered to be public
purposes. Yet deprivation of property for any such purpose
would not amount to acquisition or possession taken under
Article 300A. It would be by exercise of the Police power of the
State. In other words, Article 300A only limits the powers of
the State that no person shall be deprived of his property save
by authority of law. There has to be no deprivation without any
sanction of law. Deprivation by any other mode is not
acquisition or taking possession under Article 300A. In other
words, if there is no law, there is no deprivation. Acquisition of
mines, minerals and quarries is deprivation under Article
KPP -25- WP No. 2859 of 2006
300A."
The Supreme Court has held that deprivation of property for any purpose
would not amount to acquisition or possession under Article 300-A but only
limits the powers of the State that no person shall be deprived of his property
save by authority of law. If there is no law, there is no deprivation. Acquisition of
mines, minerals and quarries is deprivation under Article 300-A. So far as the
facts of the present case is concerned, it is required to be note that it cannot be
said that the petitioner is deprived of its property or its rights in the property in
any manner. The Navy Department has refused to grant no objection which is
within their power and on the basis of which the Corporation has not granted
development permission as per the provisions of the MRTP Act and D.C.
Regulations. The petitioner is not deprived of the possession or the same is not
taken away without any authority of law. It is true that the petitioner has been
deprived of its right to develop the property. But if that is permissible in law, it
cannot be said that the petitioner has been deprived of its property without any
authority of law in any manner. The only restriction is that by virtue of the
aforesaid order of the Corporation, the petitioner is not permitted to develop its
property and it can enjoy its property as it is as on today. In our view, therefore,
decision cited by Mr. Kapadia in Jilubhai's case cannot be made applicable
especially when the Corporation under the statutory provision as refused the
permission in view of no objection from the Defence Department and the said
KPP -26- WP No. 2859 of 2006
Act, therefore, is completely in consonance with the provisions of the MRTP Act
and the D.C. Regulations. In fact, when D.C. Regulations itself provide that in a
given case permission cannot be granted if it is in public interest and when these
Regulations are not under challenge the effect has to be to the provisions of the
said Regulation.
22. On behalf of the petitioner, reference is made to the Division Bench
judgment of this Court in the case of Sonam Properties vs. State of Maharashtra.
The Division Bench in Writ Petition No. 4497 of 1990 vide its judgment dated 8th
November, 1990 came to the conclusion that under sub-section (1) of Section
154 of the MRTP Act, the planning authority is required to carry out such
directions and instructions as may be issued by the State Government for the
efficient administration of the Act. However, the Division Bench was of the
opinion that if any instruction is given by the State Government which is in
violation of the provisions of the Act, the development permission cannot be
refused on the said ground. In the aforesaid case, development permission was
not granted on the ground that in the adjoining vicinity there is a chemical
industry and it may have deleterious effect. The Division Bench of this Court held
that such insistence was contrary to the provisions of the MRTP Act and Rules
framed thereunder and that the Planning Authority should not have acted upon
some oral instructions issued by the State Government and allowed the writ
petition and directed the planning authority to process the development
KPP -27- WP No. 2859 of 2006
permission as per the observations made in the judgment. It is, however,
required to be noted that, however, a review petition was filed against the said
judgment and the Division Bench of this Court in the case of Bayer (India) Ltd.
And others vs. State of Maharashtra and others1 reviewed the said judgment and
gave certain directions. In para 93, the Division Bench observed as under.
"93. In the result, the review petition succeeds and the rule is
made absolute in the following terms:-
(a) The judgment and order dated 8-11-1990 in Writ Petition
No. 4497 of 1990 is set aside and this necessarily implies that
the consequent orders passed in other petitions on the basis of
this judgment are also set aside.
(b) We refrain from directing that the building permissions
granted pursuant to those orders in respect of those of the
buildings that have been completed or that were under
constructions as on the date of the stay order passed by the
Supreme Court on 8-1-1991 be revoked. We, however, clarify
that no additions or modifications shall be permitted in respect
of any of these buildings. We also clarify that in respect of those
schemes where permissions may have been granted but no
actual construction has been commenced as on the date of the
Supreme Court order i.e. 8-1-1991 that the prohibition in
respect of a total ban on further construction within the 1 Km.
Radius from the chemical units shall apply."
23. Against the aforesaid judgment, the matter was taken up before the
Supreme Court and certain directions were given in clause (b). The Supreme
Court while disposing of the said matter in the case of S.P. Taraporawala vs.
Bayer India2 gave certain directions as under in paragraphs 6 and 7 which read
as under.
1 1994 (4) Bombay C.R. 309
2 1997 (2) Bom . C.R., 159
KPP -28- WP No. 2859 of 2006
"6. We, therefore, direct the constitution of an authority made
under Section 3 (3) of the Act by the Central Government who
shall confer all the necessary powers under the Act on the
authority, which shall be constituted within one month from
the receipt of this order. The authority shall submit its report to
the Central Government within three months after examining
and deciding all the relevant issues including those mentioned
by us. This would be done by affording reasonable opportunity
of hearing to the parties concerned. Follow-up actions shall be
taken by all concerned as per the recommendations of the
authority within reasonable time.
7. As the constitution and deliberation of the authority would
take time and its ultimate result cannot be foreseen at this
stage, we have thought it fit to direct the Bombay Municipal
Corporation to proceed further with the plans which had been
submitted by the appellants, some of which also came to be
sanctioned. But then, as sanctioning in some cases was about a
decade back and as the scenario and thinking on the subject
has since then changed a lot, so also the building bye-laws, we
have thought it fit to direct the Corporation to re-examine the
question of grant of sanction on the basis of the existing rules
and bye-laws. The Corporation may proceed with this exercise,
but it would await the result of the report of the aforesaid
authority. We have desired the Corporation to undertake this
work at this stage itself because the matter has been delayed
already and the authority's deliberation would not be available
for quite some time."
24. It is required to be noted that the judgment given in the review
petition has not been reversed nor the law laid down by the Division Bench in
the said judgment is upset by the Supreme Court. In view of certain directions
the review petition was allowed to be withdrawn. Be that as it may, in our view,
the reliance placed by Mr. Kapadia on the Division Bench judgment of this Court
in the above writ petition cannot have any binding effect in view of what is
KPP -29- WP No. 2859 of 2006
stated i.e. Reversal of the said judgment and ultimate disposal of the petition by
the Supreme Court. In fact, direction has been given by the Supreme Court in
that review petition itself and on the basis of such direction, the review petition
was ultimately dismissed.
25. Mr. Kapadia thereafter relied upon the decision of the Madras High
Court in the matter of Indian National Trust for Art and Cultural Heritage vs.
Chennai Metropolitan Development Authority1. The said judgment is in connection
with Article 300-A of the Constitution of India. The writ petition was filed before
the Madras High Court to restrain respondent No.3 from exercising her right
over her property. The Madras High Court has held that in view of Article 300-A
of the Constitution, no person shall be deprived of his property except by
authority of law. The Madras High Court has considered the decision of the
Supreme Court in Jilubhai's case (supra) and rejected the writ petition which
was filed as a public interest litigation. The fact situation in the present case, as
discussed above by us, is entirely different.
26. Mr. Kapadia has relied upon another decision of the Madras High
Court in the case of P.P.M. Thangaiah Nadar Firm vs. The Govt. of Tamil Nadu2. It
has been held that merely because the right to property has been deleted from
the chapter of fundamental rights and has been recognised as a constitutional
1 2003 (4) CTC 513
2 (2007) 2 MLJ 685
KPP -30- WP No. 2859 of 2006
right, it does not disentitle the Court to examine that question. In the said
judgment, reference is also made to Jilubhai's case (supra). The Madras High
Court held that the person cannot be deprived of his property without authority
of law in view of Article 300-A.
27. Mr. Kapadia has relied upon another decision of the Division Bench
of this Court in the case of Bharti Tele-Ventures Ltd. and another vs. State of
Maharashtra and another1. The aforesaid matter was in connection with under
Section 4 of the Telegraph Act, regarding installation of cellular mobile
telecommunication system by the licensee. A demand notice in terms of
notification was held to be without authority of law under Section 154 of the
MRTP Act.
28. Mr. Kapadia has relied upon the decision of the Supreme Court in
the case of K.T. Plantation vs. State of Karnataka delivered in Civil Appeal No.
6520 of 2003 and other cognate matters. The Supreme Court has considered the
provisions of Article 300-A of the Constitution of India and held as under:
"121. We find no apparent conflict with the words used in Entry
42 List III so as to infer that the payment of compensation is
inbuilt or inherent either in the words "acquisition and
requisitioning" under Entry 42 List III. Right to claim
compensation is, therefore, cannot be read into the legislative
Entry 42 List III. Requirement of public purpose, for deprivation
of a person of his property under Article 300A, is a pre-condition,
1 2007 (4) Mh. L.J. 105
KPP -31- WP No. 2859 of 2006
but no compensation or nil compensation or its illusiveness has
to be justified by the state on judicially justiciable standards.
Measures designed to achieve greater social justice, may call for
lesser compensation and such a limitation by itself will not make
legislation invalid or unconstitutional or confiscatory. In other
words, the right to claim compensation or the obligation to pay,
though not expressly included in Article 300A, it can be inferred
in that Article and it is for the State to justify its stand on
justifiable grounds which may depend upon the legislative policy,
object and purpose of the statute and host of other factors.
122. Article 300A would be equally violated if the provisions of
law authorizing deprivation of property have not been complied
with. While enacting Article 300A Parliament has only borrowed
Article 31(1) [the "Rule of law " doctrine] and not Article 31(2)
[which had embodied the doctrine of Eminent Domain]. Article
300A enables the State to put restrictions on the right to property
by law. That law has to be reasonable. It must comply with other
provisions of the Constitution. The limitation or restriction
should not be arbitrary or excessive or what is beyond what is
required in public interest. The limitation or restriction must not
be disproportionate to the situation or excessive. The legislation
providing for deprivation of property under Article 300A must be
"just, fair and reasonable" as understood in terms of Articles 14,
19(1)(g), 26(b), 301, etc. Thus in each case, courts will have to
examine the scheme of the impugned Act, its object, purpose as
also the question whether payment of nil compensation or
nominal compensation would make the impugned law unjust,
unfair or unreasonable in terms of other provisions of the
Constitution as indicated above. At this stage, we may clarify that
there is a difference between "no" compensation and "nil"
compensation. A law seeking to acquire private property for
public purpose cannot say that "no compensation shall be paid".
However, there could be a law awarding "nil" compensation in
cases where the State undertakes to discharge the liabilities
charged on the property under acquisition and onus is on the
government to establish validity of such law. In the latter case,
the court in exercise of judicial review will test such a law
keeping in mind the above parameters.
123. Right to property no more remains an overarching
guarantee in our Constitution, then is it the law, that such a
legislation enacted under the authority of law as provided in
Article 300A is immune from challenge before a Constitutional
KPP -32- WP No. 2859 of 2006
Court for violation of Articles 14, 21 or the overarching principle
of Rule of Law, a basic feature of our Constitution, especially
when such a right is not specifically incorporated in Article 300A,
unlike Article 30(1A) and the 2nd proviso to Article 31A.
142.Let the message, therefore, be loud and clear, that rule of
law exists in this country even when we interpret a statute,
which has the blessings of Article 300A. Deprivation of property
may also cause serious concern in the area of foreign investment,
especially in the context of International Law and international
investment agreements. Whenever, a foreign investor operates
within the territory of a host country the investor and its
properties are subject to the legislative control of the host
country, along with the international treaties or agreements.
Even, if the foreign investor has no fundamental right, let them
know, that the rule of law prevails in this country."
29. Mr. Kapadia also relied upon the decision of Privy Council in the case
of Nazir Ahmad vs. King Emperor1. It has been observed in the said order that
when power is given to do a certain thing in a certain way, the thing must be
done in that way or not at all. Other method of performance are necessarily
forbidden. He has relied upon such passing observations made at pg. 257 of the
said judgment. He has also relied upon another decision of the Supreme Court in
the case of State of Gujarat vs. Shantilal Mangaldas and others2. It has been
observed in para 54 that the land required for any of the purpose of a town
planning scheme cannot be acquired otherwise than under the Act, for it is a
settled rule of interpretation of statutes that when power is given under a
statute to do a certain thing in a certain way the thing must be done in that way
or not at all.
1 AIR 1936 Privy Council 253 (2)
2 AIR 1969 SC 634
KPP -33- WP No. 2859 of 2006
30. As pointed out earlier, the powers are exercised by the Corporation
as provided under the statute, MRTP Act and D.C. Regulations. Mr. Kapadia has
relied upon the decision of the Supreme Court in the case of Ramchandra
Keshav Adke (dead) by Lrs. vs. Govind Joti Chavare and others1 wherein it has
been held that a a century ago in Taylor v. Taylor (1875) 1 Ch D 426 Jessel M.R.
Adopted the rule that where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all and that other methods of
performance are necessarily forbidden. Reference is also made to Nazir Ahmad's
case in the aforesaid case.
31. Reference is also made to the decision of the Division Bench of this
Court in the case of Lok Holding and Construction Limited vs. Municipal
Corporation of Gr. Bombay and others, which is an unreported decision dated
10th August, 2011. In the aforesaid case, the Division Bench has held that if
notification under Section 3 is not issued, the Corporation should not have relied
upon the NOC from the Defence establishment. So far as the facts of the said
case are concerned, it is required to be noted that IOD and OC were already
issued in favour of the petitioner of that petition for construction of building and
the same were granted by the Corporation after the petitioner therein produced
a letter dated 23rd January, 2009 signed by the Administrative Officer, Central
1 AIR 1975 SC 919
KPP -34- WP No. 2859 of 2006
Ordnance Depot giving no objection to the sanction of the building plan
submitted by the petitioner. Subsequently it was pointed out that the said letter
was forged letter and the permission which was granted was withdrawn. The
action was challenged before this Court. The Division Bench in its judgment has
noted the fact that earlier a notification in relation to the defence establishment
was actually issued by the Collector but it was subsequently cancelled.
Observing the said aspect, the Division Bench came to the conclusion that no
notification, therefore, was in existence which was earlier issued. The Division
Bench, therefor,e held that refusal of development permission on the basis of the
instructions given by the State Government to to grant development permission
without NOC from the defence is not just and proper especially when statutory
enactment is occupying the field i.e. Works of Defence Act, the Government may
not have the power to issue such instructions in respect of the defence
establishment wherein there was no notification as contemplated by the
provisions of the said Act. The Division Bench gave certain directions after taking
an overall view of the matter. In the aforesaid case, no law has been laid down
by the Division Bench in its unreported judgment. In any case, on going through
the aforesaid judgment, we are of the opinion that no law has been laid down
by this Court nor provisions of Section 46 of the MRTP Act nor D.C. Regulation
16 were under consideration of the Division Bench. It, therefore, cannot be said
that any law has been laid down by the Division Bench while making certain
passing observations in the judgment. In the instant case, it is required to be
KPP -35- WP No. 2859 of 2006
noted that under Section 154 of the MRTP Act, the State Government is
authorised to issue directions to the planning authority. The said provisions
have already been quoted above. On the basis of the same, the State has issued
instructions on 4th November, 2010 which read as under:
" Govt. Of Maharashtra
No. CRZ-2010/2634/C.N. 421/10/
(Part-2)/UD-12
Urban Development Dept.
Mantralaya, Mumbai-400 032.
Date: 4th November, 2010
To
The Commissioner of Mahapalika,
Brihanmumbai Mahanagarpalika,
Mumbai-400 001.
Sub: Regarding development permissions
sanction in the area of Brihanmumbai Mahanagarpalika
by various Planning Authorities/Special Planning
Authority.
Sir,
MMRDA, MIDC, SRA etc. Bodies are working as
Planning Authority/Special Planning Authority other than
Brihanmumbai Mahanagarpalika in the area of
Brihanmumbai Mahanagarpalika. To maintain uniformity in
the said planning authority, the following instructions are
passed.
1. The sanctioned plans of CZMP in the area of
Brihanmumbai Mahanagarpalika shall be made
available immediately upto their field of activities to
the concerned planning authority/special planning
authority. The said action should be completed upto
date 30/11/2010.
KPP -36- WP No. 2859 of 2006
2. The xerox copies of circulars/orders received in view
of CRZ from Urban Development Department,
Environment Department of State Government, also
Central & Forest Environment Department may be
made available immediately to all Planning
Authorities/Special Planning Authority working in
the area of Brihanmumabi Mahanagarpalika.
3. Before sanctioning any development permission in
the area of Brihanmumbai Mahanagarpalika, firstly
obtain No Objection certificate from them of
Defence, Army, Navy or Security body lying in that
region or nearly region.
It is requested to you as per order given to me
to do implementation of said instructions urgently.
ig Sd/-
G.M. Wajpe,
Desk Officer."
In our view, such direction can certainly be given under Section 154 of the
MRTP Act and the State Government is empowered to give such direction under
the aforesaid provision and, therefore, it cannot be said that such instruction is
administrative instructions or executive fiat and it is not binding on the planning
authority.
32. Mr. Khambata, learned Additional Solicitor General, has relied upon
various decisions to substantiate his say. He has relied upon the decision of the
Supreme Court in the case of S.N. Rao and others vs. State of Maharashtra and
others1. In paragraphs 7 and 8, it has been observed by the Supreme Court as
under:
1 AIR 1988 SC 712
KPP -37- WP No. 2859 of 2006
"7. In allowing the appeal of the respondent No. 5 and
directing 924 sanction of the development plan, the respondent
No. 2 observed that in view of the clear provisions of sections
46 and 31(6) of the Act and having regard to the position that
in the sanctioned plan of 1966, the said land was included in
the residential zone and no proposal to exclude it therefrom in
the draft revised development plan had been published, the
Municipal Commissioner was not justified in rejecting the
application for approval of the plan submitted by the
respondent No. 5 on the ground that the Bombay Municipal
Corporation had decided to revise the 1966 Development Plan.
We have already referred to section 46 of the Act which
provides that the Planning Authority in considering the
application for permission shall have due regard to the
provisions of any draft or final plan or proposals published by
means of notice submitted or sanctioned under the Act. It
seems that the respondent No. 2 was of the view that the
Planning Authority could only take into its consideration any
draft or final plan or proposal which had been published by
means of notice or sanctioned under the Act as provided in
section 46. There is, in our opinion, some force in the
contention made by Mr. Kalsekar, learned Counsel appearing
on behalf of the appellants, that the respondent No. 2 has
misunderstood the provisions of section 46. It is submitted by
the learned Counsel that the Municipal Corporation was
entitled to take into consideration other relevant facts including
the contemplated revision of the plan, apart from those
mentioned in section 46. In support of his contention, the
learned Counsel has placed reliance on an unreported decision
of a learned Single Judge of the Bombay High Court in Life
Insurance Corporation of India and Another v. Municipal
Corporation of Greater Bombay and Others, Writ Petition No.
2944 of 1932 disposed of on 6.3.1984. In that case, a
development application was rejected by the Municipal
Corporation on the ground that the property was proposed to
be reserved for public purposes or for recreational ground in
the draft revised development plan, and the High Court
repelled the challenge to the decision taking the view that even
the proposed revision could be taken into account as one of the
relevant factors.
8. There can be no doubt that if there be any other material
or relevant fact, section 46 does not stand in the way of such
material or fact being considered by the Municipal Corporation
for the grant or refusal to grant sanction of any development
KPP -38- WP No. 2859 of 2006
plan. In the unreported decision of the High Court, the relevant
fact that was taken into consideration was the draft revised
development plan, even though the plan was not published. In
the instant case, however, at the time the Municipal
Commissioner rejected the plan submitted by the respondent
No. 5, there was no draft revised development plan in
existence. It was in contemplation. If there had been such a
plan, the Municipal Commissioner would be entitled to rely
upon the same in rejecting the plan submitted by the
respondent No.5. But, as there was no such draft revised plan
as has been stated before this Court even by the Counsel for the
Municipal Corporation, the Municipal Commissioner was not
justified in merely relying upon a proposal for the preparation
of a draft revised plan. An order rejecting a development plan
submitted by the owner of the land should be supported by
some concrete material. In the absence of any such material, it
will be improper to reject the plan on the ground that there is a
proposal for revision of the draft plan or that such a revision is
under contemplation. We are, therefore, of the view that the
ground for rejecting the plan submitted by the respondent No.
5 was not tenable and the appellate authority was justified in
allowing the appeal."
33. Mr. Khambata has also strongly relied upon the decision in the case
of Bayer India Ltd. (supra) which we have referred to above. He submitted that
in view of the same, the planning authority was justified in calling for certain
more information. He has also relied upon the decision of the Supreme Court in
the case of F.B. Taraporawala and others vs. Bayer India Ltd. (supra) and
submits that since the review judgment has not been disturbed , the same is
binding on this Court.
34. Mr. Khambata also relied upon the decision of the Division Bench of
KPP -39- WP No. 2859 of 2006
this Court in the case of Akbar Travel of India (Pvt.) Ltd. vs. Union of India and
others delivered in Writ Petition (L) No. 656 of 2009. In paragraph 31, the
Division Bench has observed thus:
"31. We cannot transgress the limits of writ jurisdiction by sitting
in judgment over the actions of Intelligence Agencies. These
agencies are manned by experts, who are in the best position to
judge the security interests. Ultimately, sensitive and vital
installations have to be safeguarded and protected from entry of
persons who are considered to be undesirable and a security risk.
Precisely, such are the inputs in the reports which have been
received and if the Bureau has acted upon the same, then, we
cannot sit in judgment over their decision. The writ Court does
not possess any expertise in such cases. The Court cannot indulge
in guess work and hold that the inputs do not endanger the
security of the Airport nor public interest demand that the
ground handling operations of the petitioner be prohibited.
These are matters which are better left to the authorities in
charge of security of the vital installations as they are in charge
of laying down standards and norms for protecting and
safeguarding them. They act in public interest and when no mala
fides are alleged, their actions ought not be interfered."
Relying on the same, it is submitted by Mr. Khambata that once the competent
authority i.e. Navy has found that the apprehension of security, this Court
cannot sit in appeal over the judgment of the said authority.
35. Mr. Khambata also relied upon a decision of the Delhi High Court in
the case of Federation of Indian Airlines and others vs. Union of India delivered in
W.P (C) No. 8004 of 2010 on 4th March, 2011. In paragraph 93, the Division
Bench has observed thus:
KPP -40- WP No. 2859 of 2006
" 93. The contention of the learned counsel for the petitioners
is that the security facet has been introduced as a subterfuge to
curtail the commercial interests of the petitioners and gradually
destroy their existence. Per contra, the submission of the learned
Solicitor General is that strong steps have been taken to regulate,
protect and oversee the security measures regard being had to
the global phenomena and the security lapses that have taken
place at the airports. The factum of security cannot be gone into
by court of law and more so when specific aspects have been
dwelled upon and delved into by the Bureau of Civil Aviation
Security. The security of a country is paramount. It is in the
interest of the nation. There is no question of any kind of
competition between the commercial interest and the security
spectrum. The plea that in the name of security the commercial
interest of the petitioners is infringed or abridged does not merit
consideration and in any case this Court cannot sit in appeal over
the same. The individual interests of the petitioners must yield to
the larger public interest. Judged by these parameters and the
authorities which we have referred to hereinabove that lay down
the test under Article 14 and the role of court while dealing with
policy decisions of the State, we do not remotely perceive the
same to be arbitrary or unreasonable. It cannot be said that it is
not based on well defined grounds. The very purpose of
perceptible and does not suffer from the vice of
unreasonableness. Therefore, we hold that the circular, as a
policy decision, is not arbitrary and unreasonable to invite the
frown of the said limb of Article 14 of the Constitution."
I
36. Mr. Khambata also relied upon the decision of a Division Bench of
this Court in Writ Petition (L) No. 1105 of 2011 (Narangs International Hotels
Pvt. Ltd. vs. Union of India and others), decided on 17th June, 2011 wherein this
Court has observed in para 11 thus:
KPP -41- WP No. 2859 of 2006
" 11. Having considered the rival contentions, we are of the
opinion that this is a case where this Court cannot interfere with
the impugned order which rejects the security clearance on the
basis of the report of the Intelligence Bureau. We have perused
the report of the Intelligence Bureau. We have no reason to
disbelieve it. We cannot sit in appeal over the said report. This
case involves the security of India and more particularly the
security of the Airports. Intelligence Bureau is an expert body.
The petitioners have not alleged any mala fides. It is impossible
to say that any extraneous reasons have persuaded the
Intelligence Bureau to submit the report or that Respondent 1's
action is mala fide."
37.
Considering the case law cited by both the sides, we are of the
opinion that whether the security point raised by Navy is merely a bogey or is a
matter of substance is not a question which we can decide in a petition under
Article 226 of the Constitution of India and this aspect should be squarely left to
the defence authority. It is not for this court to pronounce the aforesaid aspect as
it is completely in the realm of the defence department. It is also not for this
Court to pronounce upon the decision of the Navy that the point of defence
raised by them is justified or not. During the course of hearing Mr. Khambata
has pointed out that in the recent past Mumbai was attacked by terrorists on 26th
November, 2008 and from the said experience, there is nothing wrong if the
Department has become wiser by taking most stringent security measures. It is
submitted by Mr. Khambata that even if in the past in the nearby area high rise
buildings were permitted to come, that cannot be taken into consideration as a
basis for refusing permission to the petitioner's development especially when
petitioner's property is just touching and adjoining the property of Navy wherein
KPP -42- WP No. 2859 of 2006
important armaments and missiles are kept there. Even VVIPs helicopters are
landing at the said place. This Court cannot ignore all these facts and cannot
come to the conclusion that the theory of security is nothing but an afterthought
and that it should be ignored. If element of security is involved and if there is a
clash between commercial interest and national interest, it is always the
national interest which should prevail and simply because the petitioner may
not be allowed to develop its property in a particular way, this Court cannot
strike down the decision of the planning authority by which they have refused to
grant permission to the petitioner. The instructions given by the State
Government cannot be ignored by the planning authority, which we have
incorporated above. The paramount interest is the security of the country and
the same cannot be ignored by anyone including the planning authority, State
Government or by any other authority. Considering the submissions made by
the counsel appearing for the parties and considering the material on record, we
are of the view that the security aspect which is pressed into service by Navy
cannot be said to be a mere bogey or imaginary one, as appropriate material has
been placed on record to buttress the stand of the Navy. As pointed out earlier,
there are various provisions in various enactments which require that in a
particular area certain high rise buildings or developmental activities are not
permitted, especially in the vicinity of refinery or chemical industries which may
affect health hazards to the persons staying nearby. In the instant case simply
because construction activity is not permitted, it cannot be said that such action
KPP -43- WP No. 2859 of 2006
is violative of Article 300-A of the Constitution of India. Even at the cost of
repetition, we may say that under D.C. Regulation 16, no development activity
is permissible in certain eventuality which includes public interest also. The said
Regulation is not challenged before us. Therefore, in our view, the Corporation
has acted within its authority and in view of that it cannot be said that the
petitioner is deprived of its property without any authority of law. Even the
Supreme Court, as pointed out earlier, in the case of S.N. Rao (supra) has clearly
held that there could be no doubt that if there be any other material or relevant
fact, Section 46 of the MRTP Act does not stand in the way of such material or
fact being considered by the Municipal Corporation for the grant or refusal to
grant sanction of any development plan. In view of the same, the reliance placed
on the Division Bench judgment of this Court in the case of Lok Holding (supra)
has no application to the facts of the present case.
38. Considering all these aspects, we do not find any illegality in the
action of the Corporation in refusing development permission to the petitioner
in a sensitive area which is just located adjoining to INS Shikra and which,
according to the Corporation, cannot be allowed to be developed without the
permission of the Navy. When Navy has refused No Objection on the ground of
security aspect, this Court may not interfere with such decision.
39. In view of what is stated above, we do not find any substance in this
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petition. It is accordingly dismissed. Rule is discharged. No other arguments are
canvassed before us except the one which we have dealt with. The interim
orders/directions issued from time to time stand vacated.
P. B. MAJMUDAR, J.
MRS. MRIDULA BHATKAR, J.
