Partner Of vs Union Of India
2013 Latest Caselaw 412 Bom

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                                                             wp646-13.doc

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             ORDINAEY ORIGINAL CIVILJURISDICTION




                                                                     
                 WRIT PETITION NO.646 OF 2013




                                             
    1]    S.S.V. Developers

    2]    Hiral Dinesh Vora




                                            
         Partner of petitioner No.1
    having his office at 54, Ground floor,
    Mhatre Pen Building, Senapati Bapat
    Marg, Dadar (West), Mumbai




                                     
    400 028                                       .. Petitioners

          Versus
                     
                    
    1]    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

    2]   Commanding Officer, Western





    Naval Command, Shaheed Bhagat
    Singh Road, Mumbai 400 023

    3]   Commander, INS Trata





    having his office at INS Trata,
    Worli, Mumbai 400 018

    4]   Flag Officer, Commanding
    In Chief, Western Naval Command,
    Shaheed Bhagat Singh Road,




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    Mumbai 400 023




                                                                      
    5]   Slum Rehabilitation Authority




                                              
    6]   CEO Slum Rehabilitation Authority

    7]   State of Maharashtra,




                                             
    8]  Secretary, Urban Development
    Department, Mantralaya, Mumbai

    9]   Mahakali SRA Coop.Housing




                                 
    Society, having its office at C-5,
    208 Worli Division, Ardikar Road, Worli
                     
    Mumbai 400 018
                    
    10) Mahakalinagar Rahivashi SRA
    Sangh, having its office at C-5, 208
    Worli Division, Ardikar Road, Worli
    Mumbai 400 018.                      .. Respondents
      
   



    Mr.Milind Sathe, Senior Advocate with Ms.Sonali Jain i/b.
    M/s.Khona and Kayser for petitioners

    Mr.Kevic Setalwad, Additional Solicitor General with Anish





    Kulkarni, Som Sinha for respondent No.4

    Mr.Vijay Patil for respondent Nos. 5 and 6





    Mr.A.B.Ketkar, AGP for respondent Nos. 7 and 8

    Ms.Mamta Sadh with Ms.Ashwini Purav i/b. Ashwini Purav
    for respondent Nos. 9 and 10




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                          CORAM : S.C.DHARMADHIKARI &




                                                                     
                                    R.Y.GANOO, JJ.

              Reserved on           : 12th December 2013

              Pronounced on         : 23rd December 2013.




                                            
    ORAL ORDER (Per Dharmadhikari, J)




                                  
    1]
                        

Rule. Respondents waive service. By consent rule is

made returnable forthwith. .

2] By this petition under Article 226 of the Constitution of

India, the petitioners are challenging the communication

dated 19th March 2011 issued by the Slum Rehabilitation

Authority (SRA for short), requiring the petitioners to obtain

No Objection Certificate (NOC for short) from the Naval

Authorities, the communication dated 4 th November 2010

issued by the State Government to the Municipal

Corporation prescribing condition of NOC, a communication

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dated 29th April 2011 was issued by the Government of

Maharashtra to SRA directing issuance of stop work notice

to the petitioners and finally stop work notice dated 30 th April

2011 issued by the SRA.

3] Since detailed arguments are canvassed and at the

stage of interim injunction/ relief, we have heard parties on

all issues and points canvassed before us.

4] The facts arising out of which these reliefs have been

sought are that the petitioner No.1 is a partnership firm inter

alia engaged in the business of real estate development.

The second petitioner is its partner. The Slum Rehabilitation

Project on the plot of land bearing C.T.S.No.208(pt), 209(pt)

off Lower Parel, Worli Division, Mumbai is the project which

is the subject matter of the petition. This development and

slum rehabilitation project is on this plot of land which

admeasures 5342.38 sq.mtrs. On this plot, there were 272

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slum dwellers. The petitioners state that the plot is not

reserved for any public purpose except for widening of road.

5] On 19th October 2004 a lettter was addressed by

Maharashgra Housing and Area Development Authority

MHADA to the Executive Engineer SRA giving the details of

the area of the subject plot as well as Annexure II. On 8 th

December

2004 the Municipal Corporation furnished the

development plan remarks in respect of the subject plot to

the petitioners Architect stating that the said plot was not

reserved for any public purpose. On 23 rd December 2004,

SRA issued a letter of intent to the petitioners' Architect in

respect of C.T.S.Nos. 208(pt) and 209(pt) for rehabilitation of

members of Mahakalinagar Rahivashi SRA Sangh. The

letter of intent indicated that 122 slum dwellers were to be

re-accommodated and 34 PAP tenements were to be

generated. On 7th January 2005, a letter was addressed by

MHADA to SRA giving their no objection for the

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redevelopment scheme under D.C. Regulation 33 (1) on

C.T.S.Nos. 208 (pt) and 209(pt). On 19 th March 2005, a

letter was addressed by the Government of Maharashtra to

slum Rehabilitation Authority granting their NOC for the

redevelopment of plots bearing C.T.S.Nos. 208(pt) and 209

(pt). On 10th May 2006, a revised letter of intent was issued

by SRA in respect of C.T.S. No.208(pt) and 209(pt) by

changing certain conditions relating to F.S.I.

6] On 11th May 2006, respondent No.10 was registered

as a cooperative housing society. On 17 th May 2006

respondent No.9 was registered as a cooperative housing

society. On 29th May 2006, SRA granted intimation of

disapproval to the petitioners for construction on C.T.S.Nos.

208(pt) and 209(pt) for composite building. The said

intimation of disapproval did not stipulate a condition as

regards any No Objection certificate from Naval Authorities

or any other authority. On 9th June 2006, a letter was

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addressed by SRA to the petitioners Architect for

amalgamation of the slum rehabilitation scheme of the

occupiers who represented respondent Nos. 9 and 10

societies and such approval was granted by the SRA. On

9th June 2006 the commencement certificate was issued by

the SRA for construction on C.T.S.No.208(pt) and 209(pt).

On 19th June 2006, the SRA issued intimation of disapproval

for building No.2 in respect of the subject plots bearing

C.T.S.Nos. 209=8(pt) and 209(pt). On 8 th January 2007, a

letter was addressed by Municipal Corporation to the

petitioners granting permission for removal/ transplanting of

trees. On 5th January 2007, commencement certificate was

granted by SRA for Sale Building No.2. On 16 th April 2009,

SRA addressed a letter to the petitioners Architect

sanctioning the amended plans for Building No.1. On 14 th

May 2010 an order was passed by the SRA as regards

eligibility of certain occupiers.

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7] It is then averred that on 1st March 2011, a letter was

addressed by the Commanding Officer, INS Trata to the

Principal Secretary, Urban Development Department and

SRA complaining that the petitioners' buildings under

construction were being constructed without NOC from the

Naval Authorities and hence, appropriate directions be

issued. Annexure I is a copy of this letter.

8] Naturally the petitioners were intimated about the

receipt of such letter by the SRA. It was pointed out to the

petitioners that the construction of the petitioners' six

storeyed building opposite site III was close to site I and V

and hence, NOC was necessary. The NOC is required to

be obtained because of the circular of the State Government

dated 4th November 2010. Annexure J is a copy of this letter

from SRA and Annexure K is a copy of the Government

circular/ direction of the Urban Development Department.

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9] It is in these circumstances that the petitioners

addressed a letter to the Naval Authority and pointed out

that they had approval for rehabilitation building (building

meant for rehabilitating all slum dwellers), styled as

Buildings A, B, C and D having ground plus six upper floors

and sale component building of ground plus ten upper

floors. Therefore, a request was made to the Naval

Authority to grant NOC. Annexure L is this letter.

Thereafter, a letter was addressed by SRA to the petitioners,

directing them to stop the work in the light of the

communication from Government of Maharashtra dated 29 th

April 2011 and fax message from Naval Authority dated 6 th

April 2011. Annexures M, N and O are the said letters/

messages.

10] The Commanding Works Officer, thereafter, addressed

a letter to the petitioner dated 16 th may 2011, informing them

that their application for grant of NOC would be processed

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with the Ministry of Defence only if the further work is

stopped. Annexure P is this letter.

11] We are, therefore, taken through the letters of 25 th

May 2011, 31st May 2011, 13th June 2011 and 16th June 2011

and the letters of July, August and November 2011 to bring

home the point that the petitioners were pursuing their

request.

The request was pursued by the petitioners and,

thereafter, their Advocates. However, their Advocate's

notice was replied by the Naval Authorities stating that the

matter was further examined at the Head Quarters. The

petitioners not being satisfied with this response, entered

into correspondence through their Advocates in the month

of February 2012 (Annexure Y) and they were

communicated by the communication dated 12 th March 2012

from the Command Works Officer that the NOC has been

denied in view of the security guidelines.

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12] Thereafter, the matter rested for some time and once

against correspondence commenced from July 2012 and

what the petitioners are purporting to rely upon is that a

communication dated 18th may 2011 from the Director,

Government of India, Ministry of Defence to Chief of Army

Staff, Air Staff and Naval Staff regarding guidelines for

issuance of NOC for buildings under construction came to

their Notice later on. The petitioners submit that the NOC

has been rejected in their case relying upon this

communication, although, several NOCs were issued to high

rise buildings in the vicinity of INS Trata.

13] It is in these circumstances, that the aforementioned

communications and letters are impugned in this petition.

14] Mr.Sathe, learned Senior Counsel appearing for

petitioners submitted that the construction work has already

commenced. The letters of intent and other permissions for

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development have already been obtained. In these

circumstances, directing the petitioners to stop work is

totally arbitrary, unreasonable, unfair and violative of the

mandate of Article 14 and 19(1)(g) of the Constitution of

India. It also violates mandate of Article 21 of the

Constitution of India because slum dwellers are awaiting

rehabilitation and the project has been stalled completely.

Mr.Sathe submits that the security risk/ concern is totally

vague inasmuch as, there is no statutory sanction or power

to issue the impugned guidelines. The guidelines that are

issued do not emanate from any statutory authority.

Therefore, in the absence of any power to issue such

guidelines and particularly requiring obtaining of NOC from

Naval Authority, then, all actions of the authorities impugned

in this petition and based on these guidelines are

unsustainable in law. Alternatively, Mr.Sathe submits that

there are no parameters and no guiding principles at all.

There is a arbitrary power to stop construction and

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development activity in a densely and thickly populated

residential area. There are several buildings and high rise

ones in the vicinity of INS Trata. In these circumstances,

Mr.Sathe submits that the circular issued or the guidelines of

the Government of India cannot be invoked to insist on the

work being stopped. Therefore, this court should quash the

communication and letters impugned in the petition on this

ground alone. Alternatively and assuming without admitting

that the guidelines though issued later on can be invoked

and applied, then, in this case the work has commenced

already. The permissions were granted prior to the

guidelines being brought into effect. Therefore, these

guidelines can be applied to only future cases or

permissions, namely, prospectively. They should not have

been applied to the case of present petitioners at all.

Further alternatively he submits that the guidelines and the

power conferred therein to withhold the NOC is arbitrary.

The grant of NOC ought to be based on some rational,

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reasonable and fair conditions having nexus with the object

sought to be achieved. If the object that is sought to be

achieved is to take care of the security risks and concerns,

then, there ought to be a definite connection as to what

guides the authorities to grant NOC or withhold it. The

parameters such as distance, location from strategic and

vital installations have to be indicated in precise and clear

terms. There cannot be any vague or general description or

yardstick or criteria. In the absence of such indication, the

power is being misused. These guidelines therefore confer

unguided, uncontrolled and untrammeled powers to withhold

the NOC. The right to property may not be fundamental but

it is constitutional and legal right guaranteed under Article

300A of the Constitution. That ought to be safeguarded by

exercising such powers reasonably and after complying with

principles of fairness, equity and justice. In the present

case, there are no reasons assigned. There is no hearing

given and straight away the impugned communications are

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addressed. For all these reasons, Mr.Sathe would submit

that this petition be allowed and the impugned

communications be quashed and set aside.

15] Mr.Sathe, in support of his submissions, places

reliance upon the judgement of the Division Bench of this

Court reported in 2012 (5) BCR 346 (Lok Housing and

Construction Ltd. and Ors. Vs. Municipal Corporation of

Gr.Mumbai and Ors.) and submits that the point is squarely

covered by this decision.

16] Mr.Kevic Setalwad, learned Additional Solicitor General

(ASG) appearing on behalf of the contesting respondents

namely respondent Nos. 1 to 4 would submit that the entire

petition is misconceived. There is no fundamental right to

property. The right to develop a property is also not

unconditional and absolute but subject to reasonable

restrictions. This right to enjoy and exploit the property as

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per the wishes and choice of the owner/ developer is

dependent upon compliances with Municipal rules and

regulations, planning laws and other related statutes. It can

never be claimed to be so uncontrolled that the planning

authorities and the Government cannot interfere with the

rights of the property owners in larger public interest. It is in

these circumstances, that the challenge must be seen and

decided. Ultimately, the concern for security of State and

matters of said nature are guided by a definite policy and it

is not disputed that a policy decision has been taken. The

policy decision cannot be challenged only because in the

opinion of the petitioners, there was no necessity for framing

a policy. These are matters which are best left to experts in

the field of defence of India and security of State. If the

Authorities in charge of the same deem it fit and proper not

to allow the development and construction of high rise

buildings in close vicinity of naval installations, then, the

petitioners cannot be heard to say that their fundamental

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right of equality or to carry on trade or business or

occupation of their choice or life and liberty are adversely

affected. It is clear that the Development Control

Regulations for Gr.Mumbai (D.C.Regulations) 1991

themselves provide for imposition of such conditions in

larger public interest. The property or land can be

developed only in terms of the permissions and approvals

from statutory authorities. The Statutory authority can in

larger public interest insist upon procurement of and

compliance of some permissions and conditions such as

obtaining NOC from the naval authority. Their insistence in

the present case cannot be questioned or challenged by the

petitioners in this petition. Further, there is nothing arbitrary,

unreasonable, unfair and unjust in these matters because

the authorities are guided by national security interests and

protection of life and property of citizens of this country. In

these circumstances, the NOC was always insisted upon

earlier as a matter of practice as the security risk certainly is

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an important and bonafide consideration. The source of

power to insist for such NOC from naval authority is to be

found in Regulation No.16(n) of the D.C.Regulations.

17] Mr.Setalwad also submitted that there is nothing

arbitrary or discriminatory in the insistence on obtaining

NOC in this case, because, the instances of Har-Siddhi

Apartment and "Godrej" are not on par with the case of the

present petitioners. In the matter of Har-Siddhi, the naval

authorities and the Union of India have approached this

court to stop the development and construction at site. The

building constructed by Godrej and stated to be in the

vicinity is a construction of 1995 and fairly old and,

therefore, no comparison can be drawn from these

instances. Apart therefrom, there are no instances and in

these circumstances, there is no merit in the contention of

the present petitioners.

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18] Mr.Setalwad has taken us through the affidavit filed in

reply by the respondents. In support of his submissions,

Mr.Setalwad relies upon a later decision of a division bench

of this court in TCI Industries Ltd. Vs. Municipal Corporation

of Gr.Bombay, reported in 2012 (5) BCR 353.

19] There is a rejoinder affidavit filed based on which

Mr.Sathe contended that the petitioners' allegations in the

petition have not been denied or disputed.

20] For properly appreciating the contentions of the

learned Counsel for either side, we have to note that the

petitioners do not dispute that they require sanction and

approvals so as to undertake project of this magnitude and

at several levels. The petitioners do not dispute that their

right to develop the property is depending upon the

satisfaction of the terms and conditions contained in the

letters of sanction, approval in that behalf so also the

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planning laws. That such terms and conditions can be

validly imposed by the planning authority and, therefore,

there could be no unconditional permission for development,

appears to be a undisputed position. There is no challenge

to any other condition, save and except the insistence of the

authorities on compliance with a letter dated 4 th November

2010 from the State of Maharashtra, which is addressed to

the Municipal Commissioner of Brihanmumbai Municipal

Corporation. This letter inter alia makes it obligatory for the

municipal corporation to insist upon a NOC from defence,

army, navy or such security agency within whose precincts

the municipal corporation is approving any lay out or

sanctioning or approving any plan for development. In

terms of the same, the slum rehabilitation authority called

upon the petitioners to approach the naval authority and

obtain their NOC. We do not find any merit in the

contentions of Mr.Sathe that the Government of India,

Ministry of Defence letter dated 18th may 2011 containing

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guidelines for issuance of NOC for building constructions

are arbitrary and do not provide for any safeguards. The

guidelines have been perused by us carefully and in their

entirety. These guidelines have been issued because the

authorities found that the Works of Defence Act, 2003 which

imposes restrictions upon use and enjoyment of the land in

the vicinity of defence establishment needs to be

comprehensively amended so as to take care of security

concerns of defence forces. The process of amendment

has been put in motion and may take some time.

Therefore, it was felt necessary to issue instructions in the

meantime to regulate grant of NOC. The objective of these

instructions is to strike a balance, between the security

concerns of the defence forces and the right of public to

undertake construction activities on their land. Therefore,

even if the Municipal Laws do not so require, yet, the Station

Commander of Navy feels that any construction coming up

within 100 meters (for multi-storey buildings of more than

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four storeys the distance shall be 500 meters) radius of

defence establishment can be a security hazard, he should

then refer the matter immediately to his next higher authority

in the chain of the command. In that event and if the next

higher authority is also so convinced, then the Station

Commander may convey his objection/views to the local

municipality or State Government agencies. In the event,

these views or the objectives are not taken cognisance of,

then, the matter may be taken up with higher authorities.

Therefore, we do not find any merit in the argument that

these guidelines or instructions confer arbitrary or

untrammeled powers to withhold NOC or to refuse it. The

criteria evolved is not vague because the distance is notified

so also the nature and height of construction. Therefore,

going by the distance criteria and depending upon the risk

involved, if the NOC is insisted, even if there is no provision

in the Municipal laws in that behalf, does not mean that the

powers conferred are so absolute and uncontrolled that

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invariably the NOC will not be granted. In an individual case

if these instructions are flouted or applied erroneously or

arbitrarily and without satisfaction of the authority

concerned, particularly about security matters, then,

depending upon other factors, such a refusal or order can

be challenged.

21] We need not refer to this aspect in any further details

because we are not convinced by Mr.Sathe's argument that

the Division Bench judgement of this Court in Lok Holding

(supra) lays down that so long as the Statute does not make

any provision, then, these guidelines would not have any

legal efficacy. We have found that these observations of the

Division Bench have been made in a matter where the

Division Bench was of the opinion that the order of the

Executive Engineer of BMC, challenged in that petition is

required to be set aside. That was passed cancelling the

IOD and CC., although a letter dated 23 rd January 2009

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signed by the Administrative Officer Central Ordinance

Depot giving no objection to the sanction of building plans

was submitted by the petitioners in that petition before this

Court. Therefore, finding that there was no justification for

cancellation of the IOD and CC that the observations relied

upon by Mr.Sathe have been made. Pertinently, the Division

Bench does not hold that insistence on such an NOC is

beyond the purview of the powers conferred in the planning

authority or the State Government. The Division Bench

does not hold that the State Government is powerless to

issue guidelines or directives in that behalf.

22] These aspects have been further clarified and in our

view the reliance by Mr.Sethalwad on a later Division Bench

judgement in the case of TCI Industries (supra) is apposite.

There, the controversy was directly dealt with and squarely

answered. The Division Bench heard the parties extensively

on the point. The point was whether a individual who

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occupies the adjoining property to the naval base is required

to obtain the NOC from naval authority for development of

his property. The arguments of the Counsel for developer

and builder were noted by the Division Bench and in reply

thereto the Division Bench in paras 13, 14, 15.1, 15.2, 15.3,

16 to 20 has held thus:-

"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 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.

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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."

"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

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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, 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

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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;

... .... ....

(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

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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.

(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

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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. 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

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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 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

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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 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,

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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 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

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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 nothing but a bogey and concocted version of the Navy."

23] In para 31 of this decision, the Division Bench

judgement Court on which Mr.Sathe places reliance has

been noted and it is held that the quoted decision does not

lay down any principle in law, but makes the observations

relied upon by Mr.Sathe in the passing. The relevant

observations regarding the same as contained in para 31

are as under:-

"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 10 th August 2011. ..........

"..........In the aforesaid case no law has been laid down by the Division Bench in its unreported judgement. In any case, on going

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through the aforesaid judgement, 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 judgement. In the

instant case, it is required to be 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."

In such circumstances, it would be contrary to judicial

discipline to rely upon earlier division bench judgement in

Lok Holding (supra). The decision in TCI is directly on the

issue. It answers the same relying upon the decisions of the

Supreme Court, construes the D.C.Regulations, 1991 and a

prior decision of this Court. When we agree with the view

and reasoning all the more it will be improper to ignore it.

23] In our view, therefore, not only the paragraphs

reproduced above but the further paragraphs of the decision

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in TCI case (supra) would demonstrate and denote that the

point raised before us is completely covered against the

petitioners in the present case. In view of this Division

Bench judgement, additionally, we find that there is no merit

in the argument of Mr.Sathe that TCI Industries judgement

(supra) must be seen in the backdrop of its facts and is

distinguishable because it is delivered in a case where the

property was immediately adjacent or adjoining to the

defence establishment.

24] Mr.Sathe would urge that the distance in the present

case is not such as would be affecting the naval

establishment. Once, we are of the view that it is the

experts who have resolved and decided that for reasons of

security and protection of defence and naval establishment

NOC should not be granted, then, it is not for us to

substitute our opinion with their views. We do not find that

the views are lacking in bonafides nor their actions can be

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termed as patently arbitrary and discriminatory. Their

actions are keeping in mind the security of the defence

installation. That has to be placed in forefront. We are

completely in agreement with Mr.Setalwad that such policy

decisions cannot be interfered with by us and so very lightly.

In fact, even prior to the guidelines being brought into force,

the concern on account of indiscriminate construction

activity within the vicinity of defence establishment was

raised. Way back in the year 2006, the issue of

unauthorised construction in the vicinity of defence

establishment without obtaining NOC from Navy was raised

by the Western Naval Command. Further, the Government

of Maharashtra had written to the Flag Officer, Commanding

in Chief, Western Naval Command that a meeting would be

convened by the Urban Development Department to decide

the issue and answer the concern of the defence

establishment. It is, thereafter, that the matter was taken up

at all levels. Even in the year 2004 in one of the matters

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NOC was refused by the Executive Engineer, (B.P.) of the

Municipal Corporation Gr.Mumbai relying upon the opinion

of the Commodore, Command Works Officer for Flag Officer

Commanding in Chief, HQ, Western Naval Command. As

far as the petitioners are concerned, they were throughout

aware that the naval authorities' NOC would be needed and

they cannot claim that the construction can go on unmindful

of their concern or disregarding their view and opinion. It is

futile to urge that the construction permission having been

given earlier and the guidelines being issued subsequently,

the LOI, IOD and CC are being virtually withdrawn by such

an exercise of insistence on NOC. That is not the position

because neither of the permissions have been refused or

withdrawn but all that the petitioners are informed is that the

construction cannot proceed without no objection certificate

from Indian Navy. Once the Division Bench has put the

matter on the pedestal of risk to the defence installations,

vital for national security, then, we are not in a position to

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hold that any rights of the petitioner in development and

construction are affected at this stage. In fact at page 193

of the paperbook there is a specific request from the

commanding officer INS Trata to the Flag Officer

Commanding HQ, expressing deep concern and voicing a

apprehension with regard to the petitioner's construction. In

these circumstances, it is not as if the location of naval

establishment was either unknown or that the petitioners

were taken by surprise. The annexures to the affidavit of

Rear Admiral Mathur have been rightly relied upon by

Mr.Setalwad.

25] In these circumstances, we do not find that the orders /

communications impugned by the petitioners are in any way

vitiated. We are satisfied from the explanation given in the

affidavit that there is no discrimination and it is not that the

petitioners project has been singled out for any different

treatment.

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26] As a result of the above discussion, we do not find that

the issuance of circular of UDD or Government of India is in

any way vitiated. We are also not in agreement with learned

Senior Counsel for petitioners that because the works at site

has commenced the guidelines will have no application to

the petitioners' construction or that it can proceed without

the NOC from Navy. We are also not in agreement with

Mr.Sathe that any arbitrary or untrammeled powers are

conferred on the authorities while considering the cases for

grant of NOC. As held by the Division Bench in the TCI case

(supra), no rights in the property much less any

constitutional right in that behalf is adversely affected. The

communications and particularly those impugned in this

petition are, therefore, not vitiated by any error of law

apparent on the face of record or perversity requiring

interference in our writ jurisdiction. The petition is devoid of

any merits and the same is dismissed. No costs. Rule is

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discharged.

27] At this stage, Mr.Shah appearing for respondent Nos. 9

and 10 urged that he represents the slum dwellers and

whose structures have been demolished for constructing the

rehabilitation building and as their permanent alternate

accommodation. If the petition is dismissed, then, these

slum dwellers who are languishing in transit accommodation

or making their own arrangement for residence will be

prejudicially affected and no permanent alternate

accommodation will be made available to them.

27] We are of the opinion that the petition is by the

developer and against an act of the Municipal Corporation

and State Authorities in insisting on obtaining NOC from the

naval authorities. The challenge to that insistence having

failed, it is for the slum dwellers and the developers to take

appropriate steps and in accordance with law in the event

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there is any cause of action for the slum dwellers against

the slum dwellers and the authorities. That cause of action

and the griervance based thereon will not be affected by our

order passed today on this petition.

(S.C.DHARMADHIKARI, J)

(R.Y.GANOO, J)