Bombay High Court
Union Of India Through The Indian ... vs The State Of Maharashtra And Ors on 29 April, 2016
Bench: Ranjit More
Tapadia RR 1 / 98 WP/452/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 452 OF 2012
The Union of India,
through the Indian Army,
HQ, MG&G Area, through the
GOC, MG&G Area,
having his address at
headquarters Maharashtra
Gujarat & Goa Area, Colaba,
Mumbai-400005 Petitioner.
Vs
1. State of Maharashtra
through the Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. The Mumbai Municipal
Corporation, a body ... through
the Municipal Commissioner,
3. The Mumbai Metropolitan
Regional Development Authority
through its Metropolitan
Commissioner, having his office
at E-Block, MMRDA Building BKC,
Bandra (E), Mumbai-400051.
4. Adarsh Co-operative Housing
Society Ltd, having its address at
CTS No.652, Block VI, Colaba Division,
Capt. Prakash Pethe Marg, Colaba,
Mumbai-400005. Respondents.
Mr. Daraius J. Khambata, Senior Advocate a/w Mr. M.I.Sethna,
Senior Advocate a/w Dhiren Shah, A.M.Sethna, Mr. Phiroz Mehta,
Mr. Anket U Nikam, Ms R. Thakkar i/b Dhiren Shah, Advocates for
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Petitioner.
Mr. Shailesh Shah, Senior Advocate a/w Mr. B.H.Mehta, A.G.P for
Respondent no.1-State.
None for Respondent no.2-BMC.
Ms Kiran Bagalia, Advocate for Respondent no.3-MMRDA.
Mr. Navroz Seervai, Senior Advocate, a/w Manish Desai, Saket
Mone, Vishesh Kalra, S. Chakraborti i/b Vidhi Partners, Advocates
for Respondent no.4.
CORAM : RANJIT MORE & R.G.KETKAR,JJ.
Reserved on : 02 /12/2015
Pronounced on : ig 29/04/2016.
JUDGMENT : (PER R.G.KETKAR,J.)
1. By an Administrative Order dated 25.8.2015 passed by the
Honourable Chief Justice, this Special Bench was reconstituted for
hearing of the above petition and other connected matters from
the Division Benches available at Original/Appellate Side of this
Court. In pursuance thereof, we have heard Mr. Daraius
Khambata, learned senior counsel for the petitioner, Mr.Shailesh
Shah, learned senior counsel for respondent no.1, Ms. Kiran
Bhagalia, learned counsel for respondent no.3 and Mr. Navroz
Seervai, learned senior counsel for respondent no.4 at length.
Rule. Learned counsel for the respective respondents waive
service. At the request and by consent of the parties, Rule is
made returnable forthwith and the petition is taken up for final
3 / 98 WP/452/2012
hearing.
2. This Petition under Article 226 of the Constitution of India is
instituted by the Union of India through the Indian Army, Head
Quarters, Maharashtra Gujarat and Goa Area through the General
Officer Commanding (for short, 'GOC'), Maharashtra, Gujarat &
Goa Area (MG&G Area) against respondent no.1-State of
Maharashtra through the Secretary, Urban Development
Department, (UDD), respondent no.2-The Municipal Corporation
of Greater Mumbai (for short, 'Corporation') through
ig the
Municipal Commissioner, respondent no.3- The Mumbai
Metropolitan Regional Development Authority (for short,
'MMRDA') through its Metropolitan Commissioner and respondent
no.4-Adarsh Co-operative Housing Society Ltd (for short, 'Adarsh
Society').
3. By this petition, the petitioner has prayed for writ of
mandamus restraining respondents no. 1 to 3 from granting any
building/development permissions in the vicinity of and/or within
the Colaba Military Station (CMS) without an No Objection
Certificate (NOC) from Army Authorities and from granting any
development permissions, Completion Certificate or Occupation
Certificate to the 4th respondent or in respect of Adarsh Building
on the land on which it stands; directing respondents no. 1 to 3
to forthwith demolish the building of the Society and pending
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demolition, not to permit any occupation thereof. Pending the
hearing and final disposal of the petition, the petitioner has
prayed for interim relief directing respondents no. 1 to 3 (i) to
forthwith cease and desist from granting any development
permissions or an Occupation or Completion Certificate in respect
of the said building, situate near Plot No.87-C, now allotted CTS
No.652 in Backbay Reclamation Block-VI on Captain Prakash
Pethe Marg also known as 'Cuffe Parade Road', Colaba, Mumbai
(for short, 'subject plot') or on the land on which it stands, to
the 4th respondent society; (ii) to forthwith cease and desist from
granting in respect of the said building to the 4 th respondent any
sanction, certificate permission or any benefit or status of the
authorised building. The relevant and material facts giving rise to
filing of the present writ petition, briefly stated, are as under.
4. On 21.9.1999, respondent no.4 society addressed a letter
to the Chief Minister of Maharashtra requesting allotment of a
particular plot of land (Adarsh plot). It was set out therein that
about 15 years back, the Government of Maharashtra proposed
widening of Cuffe Parade Road, and joining the same to a 60
meter wide road known as 'Colaba-Uran Road'. However, after
this proposal, the Government banned the reclamation of sea
and the proposal came to be left on the back burner. In view of
the above, it was submitted that there was no need now to widen
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the Cuffe Parade Road beyond BEST Depot in the Back-way as
military area starts from that point. In any case, the proposal was
to terminate the said widening at the junction of plot-VI and VII of
the Colaba Division. It was further set out therein that "our
proposed plot is exactly located at that very junction where
military area begins and there is no proposal of any such
widening in the military area and, therefore, with little changes in
the Development Plan, which is still pending for approval with the
Ministry of Urban Development, our project can be cleared and
Your Lordship be kind enough to allot the same to us which is
free from encroachment and is presently with the Local Army
Authorities for construction of houses".
5. On 13.1.2000, respondent no.4-society addressed a letter
to Shri Ashok S. Chavan, the then Minister of Revenue and
Forests, reiterating the contents of the letter dated 21.9.1999.
On 2.6.2000, the society addressed a letter to the Chief Minister
of Maharashtra stating therein that the allotment of 3758
sq.meters of government land forming part of Block VI of Colaba
Division will be a kind gesture towards serving and retired offices
of Defence Services, more particularly to "our heroes who
bravely and successfully participated in Kargil operation". It was
further stated therein that possession of this piece of land is
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already with Army for the last 25-30 years who have already
issued their willingness in favour of the society to Collector,
Mumbai. Mr Khambata submitted that there are in all 103
members of the society and out of this, only 34 members are
from defence and not a single Kargil hero is a member of the
society.
6. On 29.3.2000, the Collector, Mumbai addressed a letter to
GOC, Headquarters, Maharashtra Gujarat and Goa Area,
requesting the latter to confirm that there is no objection to allot
land situate near plot no.6, Block-VI to the proposed society of
the service personnel by the Government of Maharashtra. This
was on the basis of the site inspection carried out on 27.3.2000
where it was revealed that the Military Department has
constructed a wall to the said plot and hence the Government
land protected from encroachment. The same land is applied by
the proposed society. On 30.3.2000, HQ, MG&G Area addressed
a letter to the Defence Estate Officer, Mumbai (for short, DEO') to
confirm the status of the land situate near plot no.6, Block VI by
1.4.2000, i.e. whether its a State Government or Defence land.
On the same day, DEO Mumbai Circle, gave reply setting out
therein that "it is verified from our records that the land in
question forms part of Block VI of Colaba Division (Back Bay
Reclamation Scheme-VI) which belongs to the Government of
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Maharashtra and falls outside the Defence Boundary". On
5.4.2000, a letter was addressed by HQ, MG & G Area to
Collector, Mumbai informing him that the requested land falls in
Block-VI of Colaba Division (Back Bay Reclamation Scheme-VI)
which fell outside the Defence Boundary. Necessary action may
be taken as deemed fit for the welfare of service personnel/Ex-
servicemen/ their widows. Mr. Khambata submitted that
respondent no.4-society in its affidavit in reply has claimed that
this is an NOC from the Defence Department from a security
point of view. In fact, this letter was not an NOC from a security
point of view and DEO would not be appropriate authority in that
regard. This letter only pertained to the query of the Collector
dated 29.3.2000 in connection with no objection for allotment of
the requested land to respondent no.4 society.
7. On 18.1.2003, Revenue and Forests Department of
Government of Maharashtra issued Letter of Intent (LOI) subject
to conditions stipulated therein. It was noted therein that the land
was in possession of the Defence Department. On 16.6.2003,
DEO, Mumbai Circle addressed a letter to Shri Pradeep Vyas, IAS,
Collector Mumbai setting out therein that "at present the
requested plot/Adarsh plot is a garden with many trees under
management of Local Military Authority. The GOC, M&G Area
Maj. Gen. B.A.Cariappa inaugurated an ecopark here on
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27.10.1996 on the Infantry Day. The park is surrounded by
Military Engineering Service and the same is adjacent and
contiguous to Army Unit. How for is it proper to change the
purpose of a plot from a park to a residential complex may be
reviewed also. As far as the title of the land is concerned, there
is some ambiguity in its status. As far as Survey of India Map of
Colaba, certain buildings of Engineering Services group of the
Army have been shown in the same area. The said issue also
needs to be addressed through a proper joint survey of the area.
The State Government has never made any claims over the land
even after the inauguration of a park there by the Army in 1996
and a multistoryed high-rise of private individual in that plot
would dominate entire area of Army and Navy Area and other
sensitive installation like TIFR. Thus, suitability of privately owned
high rise may invite security implications in the longer run." In
view thereof, a request was made to take note of all the above
points before arriving at a decision in this regards. A further
request was made for sending information which is desired by
higher authorities of Ministry of defence.
8. On 29.9.2004, HQ, Southern Command, Pune addressed a
letter to HQ, MG&G Area seeking comments on security
implications by 1.10.2004 as regards transfer of a plot of land
measuring 2000-2500 sq.meters at Block-VI, Colaba to
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respondent no.4 society. On 30.9.2004, HQ, MG&G Area asked
for comments of HQ, Mumbai Sub Area (Station Cell) on the
security concerns raised by Director General Defence Estates
(DGDE) today itself. On the same day, ie. 30.9.2004, HQ,
Mumbai Sub Area (Station Cell) replied to HQ MG&G Area stating
therein that the land in question has a big slum called Ganesh
Murti Nagar on one side and on another side Back Bay Bus
Depot. Hence there is no security implication for the military
cantonment. On the same day, i.e. 30.9.2004, HQ, MG&G Area
replied to HQ, Southern Command Pune, stating therein that
there were no security implications as regards transfer of plot of
defence land to respondent no.4 society. On 4.10.2004,
possession of Adarsh plot was handed over by the Collector,
Mumbai to respondent no.4-society. On 22.11.2004, for the first
time the Adarsh plot was recorded in the Government of
Maharashtra, Land Revenue records.
9. On 11.7.2005, MMRDA addressed a letter to Team One
Architects (I) Pvt Ltd, the Architects of respondent no.4 society
informing the deficiencies in the proposal. One of them was :
"v. The plot under reference is very close to the Defence
area known as Navy Nagar and the proposed height of
the building is 54.9 meters. Hence, the clearance from
the Defence Department (Navy Department) be obtained
from security point of view and the same is not
submitted."
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10. On 13.7.2005, the Architects gave reply to MMRDA and
paragraph 5 thereof reads thus:
"5. Defence NOC: The plot falls in the block VI of Colaba
Division, where Defence Department owns no land.
There are already high rise buildings in the vicinity like
IDBI towers, World Trade Centre etc in the light of this
NOC from Defence Authorities should not be insisted
upon. However, the NOC from Defence Department is
enclosed as desired by you."
11. Enclosures to this letter are letters dated 30.3.2000 and
5.4.2000. Mr Khambata submitted that the alleged NOC in
question was only qua allotment of Adarsh plot and was not from
a security point of view. Clearance/NOC from Defence
Department as required under letter dated 11.7.2005 has neither
been obtained nor being applied by respondent no.4 society.
Letters dated 30.3.2000 and 5.4.2000 alleged by society to be
the NOCs qua security, cannot in any event constitute
compliance with condition (v) imposed in 2005. The alleged NOC
relied on by the society was obtained in 2000, i.e prior to
MMRDA's letter dated 11.7.2005 and consequently there could
not have been actual or substantial compliance by the society of
requirement of obtaining NOC from the Defence Department
from a security point of view.
12. On 6.9.2005, MMRDA addressed a letter to the Executive
Engineer, Building Proposals, Corporation, and gave permission
for construction upto the plinth level only and enclosed along
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with this Commencement Certificate in duplicate. Condition no.
5 is to the following effect:
"5. NOC from the Army Department shall be obtained
before seeking approval above the plinth level."
13. Mr. Khambata submitted that the society neither applied
nor obtained NOC from Army Department. On 12.11.2005, HQ,
MG&G Area addressed a letter to the Collector, Mumbai asserting
therein that since the high rise building on the Adarsh plot will be
overlooking important Army units its location has security
implications and requested a list of office bearers and members
of the society at the earliest to enable necessary verification by
the Army to eliminate the possibility of particular security risk to
Army units/installation. HQ, Western Naval Command (HQ WNC)
vide several letters dated 27.8.2009, 15.3.2010, 15.4.200,
14.5.010 raised security concerns over the upcoming Adarsh
building due to its location in the immediate proximity of
strategic defence units and office/residential buildings of defence
personnel. HQ,WNC also called upon society and Dy Registrar
of societies to provide details of members of the society. On
25.5.2010, respondent no.4 society wrote to HQ WNC stating
therein that a complete list of its members would be sent to it
once all the names of its members were approved. On 8.6.2010,
HQ WNC addressed a letter to the Chief Secretary, Government
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of Maharashtra raising security concerns in the light of the
increased threat perception pursuant to 26.11.2008 attacks. It
was stated therein that no occupation certificate, partial or
otherwise, should be issued by the State government to society
pending security clearance from HQ, WNC. On 25.6.2010, HQ
WNC addressed a letter to (i) Chief Secretary, Government of
Maharashtra; (ii) Municipal Commissioner, Corporation, (iii)
Principal Secretary , UDD, reiterating the contents of letter dated
8.6.2010 and called upon the authorities to provide information
about members of society for the purpose of security screening.
It was further stated therein that the State Government should
take immediate steps to issue a directive under section 154 of
the Maharashtra Regional And Town Planning Act, 1966 (for short,
MR&TP Act) mandating that no Occupation Certificate be
granted to the society till the requested information was provided
by it and vetted by HQ, WNC.
14. In view of letter dated 25.6.2010, the Executive Engineer
(Building Proposals), Corporation, addressed a letter dated
19.7.2010 to MMRDA, being the special Planning Authority for
Back Bay Reclamation for taking appropriate steps in that regard.
On 29.7.2010, HQ, Mumbai Sub Area (Station Cell) addressed a
letter to the Chief Secretary, Maharashtra, raising security
concerns about the Adarsh building. A request was made that
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"no Occupation Certificate, partial or otherwise, be issued by the
State Government Authorities to the said society pending a full
security audit and screening by the Army and Naval Authorities".
On 4.8.2010, meeting of MLAs of Mumbai regarding slum
dwellers of Geeta Nagar under the Chairmanship of Secretary,
Housing Department was convened. A decision was taken in
that meeting to rehabilitate the slum dwellers of Geeta Nagar
situate in Colaba on Defence land in view of the risk to security
involved due to the proximity of its location to strategically
important defence installations. On 5.8.2010, HQ, MG&G Area
addressed a letter to the Chief Secretary, Maharashtra stating
therein that:
". The under construction building of Adarsh Co-operative
housing Society is the most dominating building in
Colaba which over looks almost entire Colaba
Military Station. Occupation of this building by anti
national elements can pose serious security threat to
Colaba Military Station".
15. On 16.9.2010, MMRDA issued Occupation Certificate to
respondent no.4-society. Revocation of Occupation Certificate
issued by MMRDA to society was sought. On 30.10.2010, MMRDA
revoked the Occupation certificate issued to Society. On
2.11.2010 Bombay Electricity Supply Transport (BEST) and the
Corporation disconnected electric and water connections
respectively to Adarsh building. On 4.11.2010 directive was
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issued by UDD, Government of Maharashtra to the Planning
Authorities including Corporation and MMRDA mandating that :
"3. Before sanctioning any development permission in
the area of Brihanmumbai Mahanagarpalika, firstly
obtain No Objection Certificate from Defence, Army ,
Navy or Security Body lying in that region or nearby
region."
16. On 18.5.2011, Ministry of Defence, Government of India
issued guidelines in respect of the security concerns of the
defence forces for issuing of NOC for building constructions.
17.
In June 2011, Survey Report was carried out and report of
Defence installations/structures in close vicinity of and with
visibility from Adarsh building showing some
structures/installations between 27 meters to 200 meters of
Adarsh. Mr. Khambata invited out attention to Survey Report at
Exhibit A page 47 and photographs from pages 48 to 57 taken
from various floors of Adarsh showing defence
installations/structures etc. On 10.6.2011, HQ, MG&G Area
addressed a letter to the Municipal Commissioner requesting him
to pass suitable orders for demolition of Adarsh building to
safeguard the security of CMS. Various factors that made the
Adarsh building a security threat were referred therein. This was
replied by MMRDA on 30.6.2011 stating therein that the matter
of Adarsh being sub-judice, MMRDA could take actions only on
15 / 98 WP/452/2012
receipt of specific directions from this Court or from the
Government. On 29.11.2011, HQ, MG&G Area addressed a letter
to the Secretary, Environment Department, Government of
Maharashtra seeking implementation of the demolition order
passed by Ministry of Environment and Forests (MoEF) as the
Adarsh building was a threat to the security of CMS. On 2.1.2012,
Government of Maharashtra addressed a letter to HQ, MG&G
Area requesting it to take up the issue viz implementation of
MOEF's demolition order with MOEF directly. In February 2012,
present petition is instituted in this Court. On 21.2.2015,
Government of Maharashtra issued Circular laying down
Guidelines for controlling the construction work around the
establishment of Defence Department, inter alia, replacing the
Circular dated 4.11.2010 and referring to Ministry of Defence
Guidelines for NOC dated 18.5.2011. Planning bodies are
directed to forward building Plans of buildings in vicinity of
Defence Establishments to the concerned defence establishment.
If no objection within 30 days is issued then NOC shall be
deemed to have been issued. On 18.3.2015 first proviso to
paragraph 1(b) of the Circular dated 18.5.2011 does not bar any
Local Military Authority/Defence Establishment from raising
security concerns in respect of any particular building with the
Town planning or the Local Authority to prevent its erection or
16 / 98 WP/452/2012
occupation. The proviso only does away with the requirement of
an NOC. On 17.11.2015, Ministry of Defence issued Circular
adding second proviso to para 1(b) of Circular dated 18.5.2011.
approve such proposal or not. LMA shall give his comments
within a period of 30days from the date of receipt of a reference
from the State Government/Municipal Corporation. This order will
be implemented prospectively."
18. Mr. Khambata submitted that Adarsh building is neither
within the 'shadow' nor within the 'shield' of any other existing
building/structure between it and CMS. No approval can be given
to it under paragraph 1(b) and none has been sought by
respondent no.4 society.
19. Mr. R.C.Thakur, the authorized representative of
respondent no.4-society, has made affidavit dated 31.7.2014
opposing the petition. It is, inter-alia, contended that the petition
suffers from delay and laches and is liable to be dismissed on
that count alone. The petitioner has not made out sufficient
cause and the gross delay and laches is unexplained. Respondent
no.4 has also referred to provisions of the Works of Defence Act,
1903 (for short, 'said Act') and in particular sections 3 and 7.
Reference is also made to two huge slums known as Ganesh
Murti Nagar and Geeta Nagar which occupies approximately
17 / 98 WP/452/2012
50,000 persons which are located in close proximity to CMS.
Reliance is placed on photographs Exhibit A Collectively and Exh.
B Collectively. In paragraph 9, it is asserted that Ministry of
Defence is a State within the meaning of Article 12 of the
Constitution of India and has to act within the four corners of law.
The action of the petitioner to target the building of 4 th
respondent alone is not only arbitrary or capricious but is also
violative of Article 14 of the Constitution of India. It is further
asserted that in the absence of any material placed by the
petitioner on record to show that why only respondent no.4's
building may pose a security threat and not other buildings, the
petition is liable to be dismissed with costs, being thoroughly
misplaced. Respondent no.4 also relied upon correspondence
from 31.12.1958 to 25.11.2010 in paragraph 10(i) to XLii.
Respondent no.4 contended that one Vice Admiral Sanjeev
Bhasin, the then FOC-in-C, WNC vide his letter dated 5.7.2010
decided to form Adarsh-II Project near Oyster and Dolphin and
had sought written help from the society. The request was
refused by respondent no.4, as a result of fiasco, he created
problem in the name of security and wrote several letters to
respondent no.1 to force respondent no.4 for screening the
society members clearance through Navy. It is further contended
that respondent no.4 has obtained all the requisite permissions
18 / 98 WP/452/2012
from the concerned Planning Authorities after allotment of land
by the State Government in exercise of powers under section 40
of the Maharashtra Land Revenue Code, 1966 and the Rules
framed thereunder. Respondent no.4 has also obtained
environment clearance from the concerned authorities. The
petitioner has not challenged any of these building permissions
and they are valid and subsisting till date, save and except
Occupation Certificate which is revoked without following due
process of law. Respondent no.4 consists of most of members
from Army and Navy and Air Force and some of them are from
civil services. Apart from that, respondent no.4 has obtained NOC
from Defence Authorities as is evident from communications
dated 29.3.2000, 30.3.2000 and 5.4.2000. Respondent no.3
MMRDA being satisfied with the compliance, granted various
permissions in the form of Commence Certificate from time to
time to the building of the 4th respondent and the construction
carried out by the 4th respondent is strictly in compliance with
the permissions granted by the 3rd respondent.
20. Respondent no.4 further contended that it is inconceivable
to even think that high ranking officers of Army from 1999 till
2010 being enrolled as members of the society, would
compromise on a security concern. Officers referred in
paragraph 20(j) had unblemished career and had distinguished
19 / 98 WP/452/2012
services. Even higher formation of Army from Head Quarters
Southern Command, Pune and Army Head Quarters/Defence
Ministry, New Delhi have been visiting Mumbai frequently, when
the construction was in progress for over six years and they were
in complete picture of Adarsh society building is being
constructed. It is after almost 10 years, that the petitioner has
woken up with the issues of security threat and now is trying to
rope in its high ranked officers, who have retired from their
positions in a distinguished career so as to show that they were
hand-in-glove with the society for its construction and did not
raise any issue of security concern in lieu of a flat in the society.
21. The petitioner has filed affidavit in rejoinder dated
18.11.2015 of Major General Rajiv Edwards. Along with the
affidavit, (a) guidelines issued by the Ministry of Defence dated
18.5.2011, (b) Circular dated 21.2.2015 issued by the first
respondent, (c) a Chart giving the details of all buildings
mentioned in paragraph 7 of the affidavit-in-reply of respondent
no.4 and the factum of the difference between the said buildings
vis-a-vis the Adarsh building, qua location from the security point
of view, (d) correspondence exchanged by the Defence
Authorities as also Naval Authorities with Government of
Maharashtra, is enclosed. In the Chart annexed at Exhibit-C to
the rejoinder, the petitioner has also given remarks qua each
20 / 98 WP/452/2012
building referred in paragraph 7 of the affidavit-in-reply of the
fourth respondent. In paragraph 13 of the rejoinder, it is stated
that successive GOCs of the MG & G Area from 1999 to July 2010
have been allocated flats in the Adarsh building and it is for that
reason that all the said GOCs did not take any objection to the
construction of the said building.
22. In support of this Petition, Mr. Khambata strenuously
contended that the nature of threat to the security of nation has
undergone a vast change over the last decade with terrorism
emerging as a source of major and unconventional danger. The
assessment of such threats has heightened and the
precautionary measures taken against them have expanded. In
2007 blasts in local train in Mumbai occurred and on 26.11.2008
a terror attack occurred in Mumbai that resulted in death of 164
people, injuring to at least 300 people and damage to property
worth crores of rupees. The terrorists entered Mumbai through
Machhimarnagar in Mumbai Cuffe Parade road. Safeguarding
high value targets, which include the CMS (which includes within
its borders the Headquarters Maharashtra, Gujarat an Goa Area),
the Headquarters Mumbai Sub-Area and various other
installations and buildings within the CMS, has assumed great
importance. It is also important not to underestimate the
21 / 98 WP/452/2012
significance of safeguarding the wives and families of serving
officers, who reside within the CMS.
23. He submitted that Adarsh building poses a serious threat to
the security of the CMS as borne out from the following factors
which are not exhaustive:
(i) Adarsh building is the tallest building in the vicinity of the
CMS, standing 31 storeys tall, and can facilitate complete
observation of military equipment, vehicles and personnel
moving into and out of the area.
(ii) Being located on the 'neck', joining Colaba island, one can
observe the sea on either side of Colaba island, providing the
opportunity for strategically advantageous observation.
(iii) HQ MG&G Area and HQ MSA, which operate as command
posts and nerve centres of activity in case of operational
necessity, are located in close proximity to the Adarsh building
and can be seriously crippled by small arms hand held weapons.
Additionally, the entire top decision making echelons of the Army
are situate in HQ MG&G Area, and can be eliminated with sniper
rifles wielded from the Adarsh building.
(iv) Important installations are located within 350 meters of the
Adarsh building, as is set out in paragraph 7 of the petition and
are well within the ranges of various small arm hand held
weapons (some of which have a range of over 1000 meters). This
22 / 98 WP/452/2012
is evident from pages 7 to 9, which is reproduced below:
Installations Distance from Adarsh Building
(In Meters)
4. Infantry Officers Mess 61
5. Fuel, Oil and Lubricants Dept 27
7. Sagarika Transit
9. Tata Institute of
Fundamental Research 1148
10. Naval Victualling Yard ig 329
11. Naval Officers Residential
(ii) Sensitive installations that stand in close proximity to, and
can be targeted from, the Adarsh building include the Station
Workshop, Storage and Disbursal Depot for POL (petrol, oil and
lubricants), Army Supply Depot, Navy Supply Depot and MES
Pumping station. He invited our attention to photographs at
Exhibit B, pages 47 to 57, and submitted that these photographs
make it amply clear that it is possible to inflict damage to these
critical and sensitive facilities.
(iii) Enhanced surveillance technologies, which are available to
terrorists, could be used from to spy on and transmit live feeds of
the activities within the CMS.
(iv) The Naval Officers's Residential Ara is within close range of
23 / 98 WP/452/2012
the Adarsh building.
(v) It is possible that potential residents of Adarsh society may
invite guests who are foreign nationals.
24. Mr. Khambata submitted that the specific assertions made
in paragraphs 3(iii) to (v) are not disputed by the 4 th respondent.
However, respondent no.4, inter alia, contended that:
(i) the issue of security is a "dynamic issue" and that in the
modern era of improved surveillance capabilities, security can be
provided by denying a particular space physically or otherwise to
those who are undesirable;
(ii) the petitioner's perception that 'it is only this building of 4 th
respondent which can pose a security threat to the Army
installations in the Colaba area, is misconceived for the fact that
there are other buildings which are much closer than the building
of the 4th respondent.
(iii) However, it is only the building of the 4th respondent of
which most of the members are from Army, navy and Air Force as
well as some of them are from civil services, pose a security
threat to the CMS.
(iv) The Colaba area was surrounded by slums.
(v) Colaba is purely a residential area, where no strategic
targets are located and officers of Army, Navy and Air force
reside there with their families.
24 / 98 WP/452/2012
(vi) Most operational locations are located outside Colaba save
a helipad which is surrounded by slums.
(vii) There are three Military Clubs and a Parsi civilian club
which hosts social functions;
(viii) Despite all this only the Adarsh building was being singled
out.
He submitted that significantly there is no real dispute that
Adarsh building is indeed a security threat.
25. Mr. Khambata submitted that the photographs taken from
various storeys of the Adarsh building show that it is the best
vantage point from which the CMS and various parts of it can be
surveyed and monitored. This itself makes it unique in terms of
the security hazard. Although ostensibly respondent no.4 was
formed to provide housing to serving and retired personnel, their
widows and Kargil heroes, only 34 out of 103 members of the
Adarsh Society are from the Defence Services and not a single
member is a Kargil War hero. In other words, it is a 'private'
housing society located at the entrance to the CMS. He further
submitted that from the material on record, it is evident that
respondent no.4 has never obtained NOC/clearance from the
Defence Authorities from security point of view. That apart, on
6.9.2005, MMRDA, while giving permission for construction upto
the plinth level, specifically imposed condition no.5 on
25 / 98 WP/452/2012
respondent no.4, namely, that NOC from the Army Department
shall be obtained before seeking approval above the plinth level.
In the first place, respondent no.4 neither applied nor obtained
NOC from the Army Department. Secondly, respondent no. 4
nevertheless misrepresented that it had an NOC from the
Defence Department by relying upon communications dated
29.3.2000, 30.3.2000 and 5.4.2000.
26. Mr. Khambata submitted that the Army Authorities have
taken into consideration various factors in assessing the security
threat posed by Adarsh building and the same have been placed
before this Court to satisfy the conscious of this Court that
bonafide assessment of the security threat has been made by
the petitioner and not to submit the determination of that
security threat to judicial review. In support of this submission,
he relied upon:
(1) TCI Industries Limited Vs. M.C.G.M, 2012 (5) Bom C.R.
353. In this case, the Division Bench of this Court considered
issues that were almost identical to the issues that arise in this
petition. The Division bench held that Section 46 of the MR&TP
Act cannot be given a restricted meaning and it cannot be said
that under Section 46, a Planning Authority cannot consider
aspects such as security. Indeed, it was the inherent duty of the
Planning Authority to apply its mind before giving development
26 / 98 WP/452/2012
permission and the Planning Authority is required to keep in mind
the pros and cons of such development permission.
27. As per Regulation 16 of the Development Control
Regulations for Greater Mumbai, 1991 (for short, '1991 DCR'),
the Planning Authority may refuse to grant permission for use of
land if the proposed development is not in the public interest, a
term which has a very wide connotation.
28. Even if no notification is issued under section 3 of the said
Act, the Planning Authority could always insist on an NOC from
the Defence Department. The Division Bench further held that
whether a security threat raised by Defence Authorities is a
bogey or a matter of substance is not a question that could be
decided in a petition under Article 226 of the Constitution of India
and it is not for a court to pronounce upon whether the factor of
security raised was justified or not.
29. Mr. Khambata relied upon Intervention Application No.2 of
2014 filed by respondent no.4-society in SLP (Civil) No.10381 of
2012 filed by TCI Industries before the Apex Court. In paragraph
13 of that application, respondent no.4 asserted that the
decision by this Hon'ble Court (Apex Court) on the validity of
directions/circulars/orders issued by the respondents as also the
interpretation of the various provisions of law and the reasons
given in the impugned order dated 19.11.2011 will have a direct
27 / 98 WP/452/2012
bearing on the Writ Petition no.452 of 2012 and its outcome.
Therefore, the decision to be rendered by this Hon'ble Court in
the instant Special Leave Petition in respect of these issues will
have a direct bearing on Writ Petition no.452 of 2012 filed
against the applicant herein. As such, the issues/contentions
arising in the instant Special Leave Petition are identical to the
issues/contentions in Writ Petition No.452 of 2012.
30. Mr. Khambata also relied upon the decision of this Court in
Akbar Travel of India (Pvt) Ltd Vs. Union of India and Ors, W.P.(L)
No.656 of 2009, (Coram: Swantra Kumar C.J. and
S.C.Dharmadhikari, J.) decided on 10.6.2009 and in particular
paragraph 31 thereof. He further submitted that a court should
only sit in appeal over such determinations only when there are
malafides that have been proved against the determining
authority. He relied upon decision in the case of Narangs
International Hotels Pvt Ltd Vs. Union of India and Ors, 2011
(supp) Bom C.R. 585. He submitted that in the present case, no
plea of malafides has been raised, much less established. The
existence of the security risk is not disputed by the 4 th
respondent. The contention advanced by respondent no.4 is one
of the alleged singling out of the Adarsh building.
31. Mr. Khambata submitted that Section 46 of the MR & TP
Act lays down that the Planning Authority in considering
28 / 98 WP/452/2012
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 said Act. In the case of
S.N.Rao Vs. State of Maharashtra, AIR 1988 SC 712, the Apex
Court held that scope of Section 46 of the MR&TP Act was wide
and that the planning authorities were at liberty to take into
consideration any fact relevant or material for the grant or
refusal to grant sanction of any development plan. He relied
upon paragraphs 7 and 8 of that decision.
32. Mr. Khambata submitted that in the case of Hindustan
Petroleum Corporation Ltd, Mumbai Vs. MCGM, 2012 Vol. 114(3)
Bom.L.R 1383, the Division Bench of this Court followed TCI
Industries (supra) and held at paras 49 and 50 that it is not only
the power but also the duty of planning authorities to consider
the security aspect in public interest before granting
development permissions as security is a crucial aspect which
public bodies, entrusted with the task of regulating development,
must take into consideration at all times. The Apex Court in
Oswal Agro Mills Ltd Vs. Hindustan Petroleum Corporation Ltd,
(2014) 2 SCC 491 affirmed the decision of this Court in
Hindustan Petroleum Corporation. In paragraph 27, the majority
judgment noted the relevance of the threat to security. Even the
dissent judgment of Hon'ble Mr. Justice G.S.Singhvi while
29 / 98 WP/452/2012
remitting the matter to this Court, required this Court to take
into consideration the issue of security threat.
33. Mr. Khambata submitted that in TCI Industries (supra), the
Division bench of this Court held that it is inherent duty of
planning authorities to apply its mind and take into consideration
all relevant aspects before granting development permission.
The same decision is followed by another Division Bench of this
Court in S.S.V.Developers Vs. Union of India, (2014) 2 Bom.C.R.
541. Mr. Khambata also relied upon Regulation 16(a),(e), (n) of
1991 DCR. Mr. Khambata further submitted that Development
Control Rules of 1967 (1967 DCR) apply for the purpose of the
CRZ Notification as held by the Apex Court in the case of Suresh
Estate V Municipal Corporation of Greater Mumbai (2007)14 SCC
439, the 1991 DCR will otherwise be applicable and this is the
stand taken by respondent no.3 -MMRDA, the Planning Authority.
Even assuming for the same of argument without conceding that
1991 DCR are not applicable, under section 46 of the MR&TP
Act, the planning authorities are obliged to consider security
aspect while considering building proposals. He further
submitted that the duty imposed upon the planning authority to
take these concerns into consideration while granting building
permissions is independent of and not determinant on the raising
of such concerns by Defence Authorities as these responsibilities
30 / 98 WP/452/2012
pertain to public interest and the security of the nation. He
submitted that there was complete dereliction of the duty by
MMRDA while issuing occupation certificate despite the several
requests made by the Defence Authorities to it.
34. Mr. Khambata submitted that on 16.6.2003 Shri Saurav
Ray, DEO addressed a letter to Collector, Mumbai raising security
concerns in allotting the requested land to Adarsh. Even in the
note dated 8.3.2004 Director General Defence Estate (for short,
'DGDE') raised security concerns regarding Adarsh building. On
12.11.2005, HQ, MG&G Area addressed a letter to Collector
Mumbai to the effect that the high rise building of respondent
no.4 will be overlooking important army units, its location as
security implications. He submitted that respondent no.4 ensured
that each successive GOC of MG&G Area or their family
members was made a member of Adarsh society and was
allotted a flat. GOCs between 1999 and 13.7.2010 were: (1)
Maj.General A. R. Kumar (2) Maj.General V.S.Yadav, (3) Maj.
General T.K.Kaul, (4) Maj. General Tejinder Singh, (5) Maj.General
R.K.Hooda. Each of them or their family members were allotted
a flat in Adarsh building. Thus, from 1999 till 13.7.2010 all GOCs
of MH&G Area became members of Adarsh society. During that
period, there was no objection to Adarsh building on the basis of
that it was not perceived as a security threat nor there was any
31 / 98 WP/452/2012
objection for transfer of land under occupation or owned by Army
to Adarsh society. He submitted that HQ, Western Naval
Command, raised security concerns over the upcoming Adarsh
building due to its location in the immediate proximity of
strategic defence units and /or office residential building/defence
personnel vide several letters dated 27.8.2009, 15.3.2010,
15.4.2010 and 14.5.2010. The building of the 4 th respondent is
the most dominated building in the area and has an overlooking
view of the entire CMS. ig Thus, it is evident that the Defence
Authorities have raised security concerns regarding the Adarsh
building on numerous occasions and have even sought
implementation of demolition orders passed by the MOEF.
35. Mr. Khambata submitted that by imposing condition on
6.9.2005, MMRDA did not consider (1) letters dated 29.3.2000
from Collector, Mumbai to GOC, HQ, MG&G Area (2) 30.3.2000
from HQ, MG&G Area to DEO and (3) 30.3.2000 from DEO to HQ,
MG&G Area and (4) 5.4.2000 from HQ, MG&G Area to Collector
Mumbai to constitute NOC from Defence Department or Army
from security point of view. Alternatively, he submitted that
letter dated 11.7.2005 of MMRDA required NOC from security
point of view from Navy Department. The alleged NOC
propounded by respondent no.4-society in compliance of that
condition are letters from Army and not from Navy. In other
32 / 98 WP/452/2012
words, respondent no.4 has not produced any NOC from Navy
Department from security point of view. Even assuming that
respondent no.4 had produced a fresh NOC in 2005 from Defence
Authorities from a security point of view in compliance with
condition imposed by MMRDA, he submitted that the said NOC
could not have been propounded as applying to 31 st storeys
building as it stands today as in 2005 the Commencement
Certificate was issued to Adarsh society only for a 14 storey
construction. He further submitted that assessment of threat
posed by a proposed building of unknown height in 2000 to a 14
story building in 2005 and 31 story building in 2011 would
necessarily be different.
36. Mr. Khambata submitted that respondent no.4 society has
contended that the petition suffers from gross delay and laches.
He submitted that even where matters of public interest and
national security were not involved, Courts have entertained writ
petitions after long period of time. It is settled principles of law
that issuance of writs is a matter of court's discretion although
delay and laches are factors to be taken into consideration they
are not absolute bar to relief. He relied upon the decision of the
Apex Court in the case of
(1) P.B.Roy Vs. Union of India, AIR 1972 SC 908 and in
particular paragraph 8;
33 / 98 WP/452/2012
(2) State of Karnataka Vs. Y. Moideen Kunhi (dead) by LRs and
Ors, (2009) 13 SCC 192 and in particular paragraphs 15 to 17;
(3) State of M.P. Vs. Nandlal, AIR 1987 SC 251 and in particular
paragraph 24, where the Apex Court observed that even there is
delay and the creation of third party rights, the High Court may
still exercise its discretion and grant relief to a writ petitioner as
ultimately the Court's discretion must be exercised fairly and
justly so as to promote justice and not to defeat it.
37. Respondent no.4 also alleged that the assessment made by
the petitioner that Adarsh building poses a security threat, is
malafide and in support of this proposition, relied upon following
decisions:
(1) Narmada Bachao Andolan Vs State of Madhya Pradesh,
(2011) 7 SCC 639 and in particular paragraph 17;
(2) Chennai Metropolitan Water Supply and Sewarage Board
and Ors Vs. T.T. Murali Babu, (2014)) 4 Supreme Court Cases 108
and in particular paragraph 13;
(3) State of M.P. Vs. Nandlal Jaiswal, (1986) 4 Supreme Court
Cases 566 and in particular paragraph 24 thereof.
38. In this behalf, he submitted that respondent no.4 does not
dispute that security risk emanates from Adarsh building.
Security generally and more particularly the security risk posed
by Adarsh building is a continuing risk and concerns and
34 / 98 WP/452/2012
therefore there is no question of delay in raising such concerns
and imposing duty on planning authority. There was change in
threat perception after terror attack in Mumbai in 2008. The
threat perception was not only heightened but perception of
nature and types of threat posed security also changed. When
the security of nation and arm forces are at risk, the defence
authority is not precluded from raising bonafide national security
issues in the future in the interest of public and the security of
the nation. Delay is not a factor that can override public interest
particularly national security concern.
39. Respondent no.4 has also contended that there is inaction
on the part of the defence authorities against other constructions
that allegedly posed security concerns to CMS. He submitted that
other high-rise buildings, referred to by Adarsh society only
offered limited view of CMS. The other high-rise buildings are not
in as close proximity to the CMS as Adarsh building is. The
height and proximity of Adarsh building provides an
incomparable overview of the CMS. He has invited our attention
to affidavit in rejoinder filed by the petitioner and annexure 'C' to
indicate differences between Adarsh building and other buildings.
Merely because other constructions have been permitted cannot
justify permitting one more construction and further dereliction
of duty by the planning authority. As far as slums of Ganesh
35 / 98 WP/452/2012
Murti Nagar and Geeta Nagar are concerned, the defence
authorities in conjunction with the State Government, have
continued to make attempts to relocate and/or rehabilitate the
slum dwellers located in the vicinity of CMS. He also invited our
attention to affidavit dated 1.4.2011 made by Vice Admiral
Bhasin in Writ Petition No.2407 of 2010 wherein he denied the
allegations made against him by respondent no.4 and asserted
that the documents relied upon by respondent no.4 are false and
fabricated documents. Respondent no.4 has not refuted these
assertions.
40. Mr. Khambata relied upon decision of the Apex Court in the
case of Ratnagiri Gas and Power Pvt Ltd Vs RDS Projects Ltd,
(2013) 1 SCC 524 to contend that the law casts a heavy burden
on the person alleging malafides to prove the same on the basis
of facts that are either admitted or satisfactorily established
and/or logical inferences deducible therefrom. He further
contended that reliance placed by respondent no.4 on the
decision of the Apex Court in the case of All India State Bank
Officers Federation Vs. Union of India, (1997) 9 SCC 151 to
contend that such allegations against individuals should not be
taken into consideration by the Court when those individuals
have not been made parties to the proceedings before it. He
submitted that the petitioner has only placed material facts
36 / 98 WP/452/2012
pertaining to persons who occupied the position of GOC of HQ
MG&G Area from 1999 to 2010 and these GOCs became
members of the Adarsh society.
41. Mr. Khambata also invited our attention to the Guidelines
issued on 18.5.2011 read with Circulars dated 18.3.2015 and
17.11.2015 and submitted that these circulars are merely
administrative guidelines as to how applications for NOC made to
Defence establishments are to be dealt with. These circulars do
not bar any Defence establishment from raising security
concerns in respect of any particular building with the town
planning or local authorities to prevent erection or occupation. It
is only the requirement of NOC that is done away with. In any
case, these circulars do not and cannot in law limit the powers of
the authorities concerned with the security of the nation to
object to the planning authorities or to file proceedings before
this Court. In any event, power of this Court under Article 226 is
not curtailed by these circulars.
42. Mr. Khambata submitted that respondent no.4 has relied
upon the said Act and in particular Sections 3 and 7 thereof as
also relied upon the following decisions:
(1) Lok Holding & Construction Ltd Vs. Municipal Corporation of
Greater Mumbai, 2012(5) Bom.C.R. 346;
(2) Anurag Agarwal Vs. State of Assam, Manu/GH/0257/2012,
37 / 98 WP/452/2012
learned Single Judge of Gauhati High Court;
(3) Union of India Vs. State of Karnataka, Writ Petition
No.14387 of 2013, decided on 24.2.2014 by learned Single Judge
of Karnataka High Court.
He submitted that the said argument was dealt with and
specifically negatived by the Division Benches of this Court,
firstly, in TCI Industries (supra) and secondly in S.S.V.Devleopers
(supra). Both these decisions have categorically held that the
decision of Lok Holding and Construction Ltd (supra) does not lay
down any law. Even otherwise, the said Act entitles the Central
Government to acquire land in the vicinity of Defence
Establishment. It does not concern the duties of planning
authorities to take security into account as a relevant factor
while permitting development. The provisions of the said Act and
Section 46 of the MR&TP Act operate in entirely different fields.
One does not exclude or override the other.
43. Mr. Khambata submitted that respondent no.4 contended
that NOC is obtained from Defence Authority and on account of
inaction on the part of Army Authorities, promissory estoppel
operates against them. Respondent no.4 has relied upon a
decision of the Apex Court in the case of Motilal Padampat Sugar
Mills Vs. State of Uttar Pradesh, (1979) 2 SCC 409. He submitted
that the principle of promissory estoppel applies to those cases
38 / 98 WP/452/2012
where there is a clear and categorical promise which is intended
to be binding and acted upon and is in fact acted on. NOC
propounded by respondent no.4 cannot be said to be a promise
at all, much less a clear and categorical one.
44. He further submitted that in paragraph 24 in Motilal
Padampat Sugar Mills case the Apex Court observed that the
doctrine of promissory estoppel is an equitable doctrine.
Respondent no.4 had never obtained an NOC/clearance from the
Defence Authority from a security point of view but nevertheless
misrepresented that it had an NOC from the Army and obtained
benefits and proceeded to construct its building. Assuming for
the sake of argument that the doctrine of promissory estoppel is
applicable, great prejudice would be caused to the public
interest in allowing the Adarsh building to stand as the security
of the nation would be adversely affected and public interest
would be prejudiced.
45. Mr.Khambata further submitted that respondent no.4
contended that CMS is a 'peace station' and not an active war
station. He submitted that the highest echelons of the Army
Authorities who would be actively and exceedingly involved in
war-time activities at the highest level, have their offices in the
CMS (including the GOC, who is the head of MG&G Area, whose
office window directly faces the Adarsh building) and the
39 / 98 WP/452/2012
presence of the families of serving officers also heightens the
need to maintain high security. Lastly, he submitted that
respondent no.4 has contended that the petitioner has not
challenged various building permissions granted by MMRDA. He
submitted that respondent no.3-Planning Authority had imposed
condition of obtaining NOC from Defence Establishment and
rather misrepresenting MMRDA that respondent no.4 had
obtained NOC, it has carried out construction. In other words,
respondent no.4 has willfully violated the conditions imposed by
the Planning Authority. The Planning Authority is vested with
Powers to demolish structures under sections 52 and 53 of
MR&TP Act. In support of this proposition, he relied upon a
decision of the Apex Court in the case of M.I. Builders Private Ltd
Vs. Radhey Shyam Sahu, AIR 1999 SC 2468. For all these
reasons, he submitted that petition deserves to be allowed and
the reliefs prayed for deserve to be granted.
46. Ms. Kiran Bhagalia appearing on behalf of respondent no.3
MMRDA submitted that the MMRDA being Planning Authority
had granted all building permissions in accordance with 1991
DCR as also directives issued by the State Government from time
to time. She submitted that between 2003 and 2010 Defence
Establishment did not raise any security concern. In other words,
there was total in action on the part of Defence Establishment in
40 / 98 WP/452/2012
so far as the security threats are concerned. It is not a duty of
the Planning Authority to consider safety aspect. She submitted
that by not objecting to the construction of the building, by
conduct, Defence Establishment has impliedly given NOC. In fact,
if at all the petitioner has genuine concern over the security
establishment, it should have raised objections at the threshold
when the query was made for allotment of Adarsh plot to the 4 th
respondent. She further submitted that communication dated
30.3.2000 addressed by DEO confirming
ig that Adarsh plot fell
outside defence boundary as also communication dated 5.4.2000
from HQ MG&G Area to Collector constitute NOC. She further
submitted that no malafides are attributed to officers of MMRDA
or to MMRDA. She further submitted that at the highest there is
mistake on the part of MMRDA in construing communications
dated 30.3.2000 and 5.4.2000 as NOC. The petition also suffers
from cross delay and laches. She invited our attention to
paragraph 19 of the petition to contend that the assertions made
therein also constitute NOC of Defence Establishment. She made
it clear that MMRDA is not opposing any prayers in the petition
and is also not supporting respondent no.4. She further
submitted that as far as the proposal to reduce width of Capt.
Prakash Pethe Marg (Cuffe Parade Road) was not initiated by
MMRDA under section 37 of MR&TP Act. The proposal was
41 / 98 WP/452/2012
initiated by the State Government under section 37(1A). She
further submitted that officials of the MMRDA are not
beneficiaries and nobody is member of respondent no.4. She
further submitted that condition no.5 in the permission to
construct upto plinth level dated 6.9.2004, is not necessarily
from security point of view but NOC is required as the land was in
possession of defence. Condition no.5 does not talk from
security point of view. She submitted that judgments relied by
the petitioner do not mandate that the Planning Authority must
insist NOC of defence from security point of view. She submitted
that for the first time in June 2011 the petitioner addressed a
letter and till that time the petitioner did nothing. She further
submitted that the Circular dated 18.5.2011 is prospective. She
submitted that appropriate orders may be passed.
47. On the other hand, Mr. Seervai submitted that the petition
is filed seeking demolition of the building constructed by
respondent no.4-society. The petitioner has portrayed the
building as posing a security threat to the Defence
Establishment. However, the record shows that from 2003 to
2011 the only objection raised by the petitioner was as regards
the personnel who would become the members of the society.
Admittedly and undisputedly, from 2003 to 2011 the petitioner
only wanted to verify the antecedents and credentials of the
42 / 98 WP/452/2012
members of the society. In fact, it never raised the slightest
objection to the construction of the building which was taking
place in front of their very eyes. The petitioner never raised any
objection to the construction of the said building because in fact
it had none. Though the petitioner is seeking writ of mandamus
under Article 226 directing demolition of the building, it has not
challenged the valid and subsisting permissions which have been
granted by the third respondent, the Planning Authority pursuant
to which respondent no.4 has constructed a building. It is thus
clear that the actions of the petitioner are clearly arbitrary,
malafide and without any basis much less any justification. The
actions of the petitioner are also violating Article 14 for targeting
only the building of the 4th respondent in an area which is
completely developed with high-rise buildings and also occupied
by slums which are in close proximity to the Defence
Establishment. The petitioner has not given any justification,
much less any explanation, as to how the only building of the 4 th
respondent poses a security threat to the Defence Establishment.
48. Mr. Seervai submitted that on 29.3.2000, Collector Mumbai
addressed a letter to GOC, HQ, MG&G Area requesting him to
confirm that there is no objection to allot land to respondent no.4
by Government of Maharashtra. This was obviously in connection
with carrying out construction. On 30.3.2000 Mr. B.S.Rao,
43 / 98 WP/452/2012
addressed a letter to DEO, Mumbai enclosing copy of letter of
Collector dated 29.3.2000 and requested the DEO to confirm the
status of the land by 1.4.2000. On 30.3.2000 DEO Mr.
Guruswamy who is not a member of the 4 th respondent
addressed a letter to HQ MG&G Area stating that the land in
question which was applied for by the 4 th respondent forms part
of Block-VI of Colaba Division (Back Bay Reclamation Scheme-VI)
which belongs to Government of Maharashtra and the same falls
outside the defence boundary. ig On 31.3.2000, HQ Munbai Sub
Area (Station Cell) addressed a letter to HQ MG&G Area stating
therein that as per records available, the Army land does not fall
in Block-VI of Colaba Division. It is further stated that the army
land in Colaba forms part of Block-VII and Block-VIII and Colaba
promontory.
49. On 5.4.2000, HQ M&G Area addressed a letter to Collector
Mumbai stating therein that "the land falls in Block -VI of Colaba
Division, (Back Bay Reclamation scheme-VI) which falls outside
the defence boundary. Necessary action at your end may be
taken as deemed fit for the welfare of service personnel/Ex-
servicemen/their widows". Thus, on a plain reading of letter
dated 5.4.2000 which is addressed by HQ M&G Area, is a NOC
issued by Defence Establishment for construction of the building
on the land to be allotted by the Government of Maharashtra to
44 / 98 WP/452/2012
the 4th respondent. None of the personnel who wrote the
aforesaid letters either in the HQ, M&G Area or the Defence
Estate, are members of the 4th respondent and have given their
inputs based on record which were available with the office of
the petitioner.
50. Mr. Seervai submitted that the communication dated
5.4.2000 written by HQ M&G area has been treated as NOC not
only by the Corporation, MMRDA, Collector, Registrar of Societies,
besides the State of Maharashtra but even more significantly the
petitioner and office of DGDE also treated it as NOC while
preparing note dated 8.3.2004 based on the reference of Chief
Vigilance Officer dated 26.2.2004. In sub paragraph 1(d), DGDE
note dated 8.3.2004 referred the security implications by the
building of the 4th respondent. Based on sub-paragraph 2(d) of
DGDE note, the HQ, Southern Command, Pune on 29.9.2004
wrote letter to HQ MG&G Area, Colaba Mumbai, seeking
comments of the security implications. The said comments were
to be given by 1.10.2004.
51. On 30.9.2004 HQ MG&G Area wrote a letter to HQ Mumbai
Sub Area (Station cell) requesting it to forward comments on the
security implications in terms of paragraph 2(d) of DGDE Note.
On the same day, i.e. 30.9.2004 HQ Mumbai Sub Area (Station
Cell) informed HQ MG&G Area that the Adarsh plot has a big slum
45 / 98 WP/452/2012
called Ganesh Murti Nagar on one side and on another side Back
Bay BEST Bus Depot. Hence, there is no security implications for
the Military Cantonment. On the same day, HQ MG&G Area
based on the inputs given by HQ Mumbai Sub Area (Station Cell )
informed HQ Southern Command (Q/L) that the plot in question
is located in the slum colony called Ganesh Murti Nagar on one
side and a BEST Depot called Back Bay Depot on the other side
along with Capt Prakash Pethe Road and therefore there are no
security implications. The said letters were written based on the
factual position as well as based on record which categorically
stated that there would be no security implications to Defence
Establishment if the building is constructed by the 4 th respondent
on the land to be allotted by the Government of Maharashtra.
Thus, on a plain reading of letter dated 5.4.2000, as also
correspondence subsequently ensued between HQ Southern
Command, Pune and HQ MG&G Area, it is crystal clear that the
building of the 4th respondent does not pose any security threat
and that it was issued a valid NOC on 5.4.2000 by the Defence
Establishment.
52. Mr. Seervai submitted that on 11.7.2005, MMRDA
addressed a letter to Architects of the 4th respondent. Clause (5)
thereof required respondent no.4 to obtain clearance from the
Defence Department (Navy Department) from security point of
46 / 98 WP/452/2012
view as the proposed height of the building is 54.9 meters. On
13.7.2005, respondent no.4's Architects gave reply stating
therein that the plot falls in Block VI of Colaba Division where
Defence Department owns no land. There are already high-rise
buildings in vicinity like IDBI towers, World Trade Centre, etc. In
the light of this, NOC from Defence Authority should not be
insisted upon. However, NOC from Defence Department is
enclosed as desired. On 6.9.2005 MMRDA gave permission for
construction upto plinth level. One of the conditions therein was
to obtain NOC from Army Department before seeking approval
upto plinth level. Along with that, Commence Certificate was also
enclosed. Mr Seervai submitted that the petitioner has
inadvertently or otherwise lost sight of significance of the letter
dated 20.11.2006 addressed by Architects of the 4 th respondent
to the Chief Town and Country Planning MMRDA. In paragraph 5
of that letter, it is specifically stated that condition of obtaining
NOC from Army Department has been complied with vide letter
dated 13.7.2005, i.e. NOC dated 5.4.2000. He submitted that
respondent no.3 was satisfied with the compliance made by the
4th respondent and did not insist upon a further NOC from the
Defence Department. In view thereof, respondent no.3 did not
insert that condition in any of the further permissions granted by
it to the 4th respondent. It is thus clear that the authorities more
47 / 98 WP/452/2012
particularly MMRDA as well as defence Department having been
satisfied with the NOC did not raise any such issue from the
years 2003 to 2011. Even the Occupation Certificate dated
16.9.2010 was issued by respondent no.3. It is, therefore evident
that respondent no.3 having applied its mind to the matter
exercised its discretion, the same cannot be faulted by the
petitioner as having been wrongly exercised. At no point of time
Defence Establishment raised any objection as regards letter
dated 5.4.2000 having been construed as NOC in favour of the
4th respondent nor did Defence Department ever raise any
objection to the construction of the building which was going on
almost six years in front of their eyes.
53. Mr. Seervai submitted that before starting construction,
respondent no.4 had issued public notice in Daily Newspaper on
19.10.2005 thereby informing public at large that it had been
granted building permission by the planning Authority and it
proposes to start construction in compliance with the same, the
petitioner did not raise any objection to the aforesaid notice. He,
therefore, submitted that it is not open to the petitioner now to
contend that letter dated 5.4.2000 is not an NOC or that the said
letter is NOC for the purpose of allotment of land and not for
construction of a multi storeyed building or that NOC of 5.4.2000
cannot be construed to be NOC from security angle. The said
48 / 98 WP/452/2012
contention is dis-engineers, dishonest and absurd. The petitioner
very well knew that the plot was being allotted to the 4 th
respondent for specific purpose of construction of a multi-
storyed building. NOC was, therefore, obviously given from the
security angle. Respondent no.4 having obtained a valid and
subsisting NOC as well as other building permissions from
respondent no.3 and Corporation has constructed building on the
said land by investing huge sum of monies and has altered its
position to its detriment. The members of the 4 th respondent had
invested their life savings in getting the flats and it is not open to
the petitioner to contend or even suggest after 7-8 years that
the letter dated 5.4.2000 is not an NOC or that it is not a valid
NOC.
54. Mr. Seervai has taken us through correspondence during
the period from 2003 to 2011. All this correspondence centers
around membership of the society as also about their credentials
and antecedents. He submitted that perusal of this
correspondence clearly shows that the petitioner or even HQ,
WNC, was seeking details of members including their
antecedents and credentials so that occupants of the building do
not pose any security threat to Defence Establishment. The only
perception of the security threat of the petitioner as well as HQ,
WNC was that the foreign national or some antisocial elements
49 / 98 WP/452/2012
should not occupy the building so as to pose security threat to
Defence Establishment. He further submitted that respondent
no.4 did not withhold any information either from the petitioner
or HQ, WNC.
55. Mr. Seervai submitted that the petitioner has relied upon
the letter dated 16.6.2003, addressed by Mr. Saurav Ray, the
then DEO, to suggest that security concern was raised in 2003, ie
prior to allotment of land in favour of the 4 th respondent. On the
other hand, the petitioner has submitted that DEO has nothing
to do with actual security implications of Defence Establishment.
The issue of security does not come within the purview of the
office of Defence Estate. He relied upon the Acquisition, Custody
and Relinquishment Rules 1944. He submitted that the
management of defence land in CMS is with Local Military
Authority and not the DEO. As per Rule 4, request for acquisition
of land for Army purposes is to be initiated at the request of said
Local Military Authority. As per Rule 7, the request for acquisition
of land for defence purposes after initiation by LMA the proposal
is to be sent through Army Headquarters through proper channel
before initiating any acquisition proceedings. Only after receipt of
approval from Defence Ministry, local DEO is to be requested to
initiate proceedings for acquisition of land required by Defence.
None of these steps have been initiated by LMAs for
50 / 98 WP/452/2012
acquisition/transfer of land for Block-VI of Colaba Division and,
therefore, DEO has no role to play in writing letters raising an
issue of the alleged security threat.
56. He submitted that the said DEO was in fact reprimanded
by his immediate superior, i.e. Principal Director, Defence Estate,
in his letter dated 5.8.2003 addressed to DGDE, copy whereof
was sent to Mr. Saurav Ray wherein he was directed not to take
immediate and unilateral action without consulting the higher
authorities of sensitive issue of this nature. The initiation of Mr.
Saurav Ray to write such letter is clear from the letter dated
6.8.2003 addressed by Brigadier Pravinder Singh to Addl. Director
General (Quarter Master General Branch), wherein in
paragraphs 6 and 7 he has categorically stated that Mr Saurav
Ray applied for membership of respondent no.4 and the same
having been refused, he raised issues which were not within his
jurisdiction. The said letter also states that DEO, who has not
been able to obtain membership of the 4 th respondent, had
resorted to mischievous methods of planting anonymous letter
raising issues which were not within his jurisdiction. The same
fact is also reiterated in the letter dated 25.5.2004 addressed by
HQ, Southern Command, to the Addl. Director General (Quarter
Master General Branch). Thus, it is apparent that Mr Saurav Ray
has personal agenda and an axe to grind against respondent
51 / 98 WP/452/2012
no.4.
57. Mr. Seervai submitted that suddenly on 10.6.2011 the
petitioner, for the first time, wrote letter to Metropolitan
Commissioner of MMRDA seeking demolition of the building on
the ground that the building itself constituted a security threat.
This was replied by the MMRDA stating that the matter is sub-
judice in this Court and respondent no.3 shall take action on
receipt of specific directions either from the High Court or the
Government. The petitioner thereafter wrote a letter dated
29.11.2011 to Environmental Department, Government of
Maharashtra, seeking demolition of the building of the 4 th
respondent. The Environment Department, in turn, addressed a
letter dated 2.1.2012 to the petitioner to directly approach MOEF
for appropriate orders of demolition.
58. Mr. Seervai submitted that the petition suffers from gross
delay and laches and the delay is justified on the ground that the
petitioner bonafide believed that it would not have to file a
separate proceedings to challenge the construction of building on
the ground of it being security threat in view of the order dated
14.1.2011 passed by MOEF ordering demolition of building. The
petitioner has further justified filing of the petition belatedly on
the ground that as the matter challenging the order of demolition
of MOEF did not progress, the petitioner thought it fit to file
52 / 98 WP/452/2012
present petition without any further delay. The said plea ought to
be disbelieved and discountenanced by this Court. If the
petitioner was serious about national security, there was no
question of waiting for the building to be demolished under the
MOEF order dated 14.1.2011. The petitioner has belatedly
targeted a stand alone building in an area which is completely
developed after the building was constructed, completed and
was granted Occupation Certificate.
59. He further submitted that while exercising powers under
Article 226 of the Constitution of India, the Court is required to
weigh the explanation offered for the delay and laches and
consider if the explanation offered is credible or believable. Such
consideration would include:
(i) Whether the delay and laches has caused irreparable
harm and prejudice to other side;
(ii) The extent of delay;
(iii) The credibility and plausibility of the explanation
given for the delay.
In support of this proposition, he relied upon following
decisions:
(i) Chennai Metropolitan Water Supply and Sewarage
Board (supra) and in particular paragraphs 13 to 17;
(ii) State of M.P. (supra) and in particular paragraphs 19
53 / 98 WP/452/2012
to 25.
(iii) Narmada Bachao Andolan case (supra) and in
particular paragraphs 17 to 20.
60. Mr.Seervai submitted that in order to justify gross delay and
laches in filing the petition, the petitioner has levelled allegations
of malafides against five GOCs, namely (i) Maj.General
A.R.Kumar, (ii) Maj General V.S.Yadav, (iii) Maj.General T.K.Kaul,
(iv) Maj.General Tejinder Singh and (v) Maj. General R.K.Hooda
without making them parties to the present petition.
ig These
officers have been deprived of an opportunity to defend
themselves and answer the allegations of malafides levelled
against them. This is legally impermissible. They are high
ranking Army Officers with a highly decorated service career who
have given their lives to the nation. The petitioner has made
loose allegations of malafides and has insinuated these officers
who have compromised national security for securing a flat in the
building of the 4th respondent. The petitioner has indirectly
portrayed their actions as if they are traitors. To add insult to
injury, these allegations are bare and bald allegations,
unsubstantiated with any particulars, details or materials, let
alone a jot or iota of documentary evidence.
61. He submitted that respondent no.4 has dealt with these
allegations in paragraph 20(j) and still the petition is not
54 / 98 WP/452/2012
amended so as to implead these five officers as party
respondents. He submitted that mere assertions or a vague or
bald statement is not sufficient. It must be demonstrated either
by admitted or proved facts and circumstances obtainable in a
given case. The burden of proving malafides is on the person
making the allegations and the burden is very heavy. The
allegations of malafides are often more easily made than made
out and the very seriousness of such allegations demand proof of
a high degree of credibility. ig He submitted that a judicial
pronouncement declaring an action to be malafides is a serious
indictment of the person concerned that can lead to adverse civil
consequences against him. The Courts have, therefore, to be
slow in drawing conclusions when it comes to holding allegations
of malafides to be proved and only in cases where based on the
material placed before the court or facts that are admitted
leading to inevitable inferences supporting the charge of
malafides that the Court should record a finding in the process
ensuring that while it does so, it also hears the person who is
likely to be affected by such a finding. In support of this
submission, he relied upon following decisions:
1. Ratnagiri Gas and Power Pvt Ltd case (supra) and in
particular paragraphs 25 to 29;
2. All India State Bank Officers Federation case (supra) and in
55 / 98 WP/452/2012
particular paragraphs 20 to 22 and 31 to 40.
62. Mr. Seervai submitted that as opposed to the Army having
a Peace Station in Colaba Defence Establishment, the Navy in
fact, operates a War Station which is also located in Colaba
Defence Establishment. Till the year 2009, the Navy did not
write a single letter raising an issue of security threat posed by
the 4th respondent as the case of Navy is far away from the
building of respondent no.4 to pose a security threat. Except Vice
Admiral Madanjit Singh, none other high ranking officer of Navy
in Colaba Defence Establishment are member of the 4th
respondent. Navy has not chosen to file the petition.
63. Mr. Seervai submitted that in the present case, admittedly
Colaba has not been declared/modified as Works of Defennce nor
any procedure as envisaged under the said Act has been
undertaken by the petitioner. In the absence of such procedure
under the said Act, action of the petitioner at such belated stage
is an arbitrary and unreasonable exercise of powers and should
not be countenanced. He relied upon Sections 3 and 7 of the said
Act as also following decisions.
(i) Lok Holding & Construction Ltd (supra) and in particular
paragraphs 4 and 5;
(2) Anurag Agarwal (supra) and in particular paragraphs 82 to
85;
56 / 98 WP/452/2012
(3) Union of India Vs. State of Karnataka, Writ Petition
No.14387 of 2013 decided on 24.2.2014 by learned Single Judge
of Karnataka High Court and in particular paragraphs 15 to 17.
64. Mr. Seervai submitted that apart from the building of the
4th respondent, there are several high-rise buildings, namely,
Daulat Shireen, Buena Vista, Connaught Barracks, Usha Sadan,
Shangrila and Windmere and many others which are totally
overlooking into the MG & G Area and Army and Navy area in
Colaba. Durgamata Towers, a 32 storey (approximately 112
meters) building constructed in the year 2006 totally occupied by
the civilians is dominating the Army and navy military stations.
The petitioner has never objected in respect of the said buildings
except the building of the 4th respondent. The Navy's Western
Fleet is located adjacent to the gateway of India and is
dominated by Taj Mahal Hotel where foreigners come and stay as
also various other buildings, located in that area, directly viewing
the Western Fleet of the Navy. Similarly, Bombay Stock
Exchange and Reserve Bank of India buildings overlook the entire
Naval areas. Two high rise buildings known as Oyster and
Dolphin owned by Pilot Bunder CHS Ltd (located within Colaba
Military Station), which are allotted to retired service officers and
civilians, are occupied by civilians including foreigners for which
the approach road and water supply has been provided by the
57 / 98 WP/452/2012
Army staff and which pertinently does not pose any concern of
security threat whereas only the building of the 4 th respondent
which is actually located outside the defence boundary is
purportedly posing a security threat to the petitioner's area in
Colaba. Apart from that, two slums known as Ganesh Murti
Nagar and Geeta Nagar where approximately 50000 persons are
residing are located in close proximity to CMS. No action
whatsoever is taken against them by the petitioner. He has
invited our attention to Chart which is part of Sur-rejoinder at
page 582 which is to the following effect :-
Building Distance
1. Usha Sadan 30-40 mtrs from the gate of Mumbai Sub- area.
2. Bakhtavar 30-40 mtrs from the gate of Mumbai Sub-area.
3. Cannaught
Mansion 10-20 mtrs from the gate of Mumbai Sub- area.
4. VeenaTower 50-60 mtrs from the gate of Mumbai Sub-area.
5.Sneh Sadan 40-50 mtrs from the gate of Mumbai Sub area.
6.Daulat Shireen Shares the common boundary wall with Mumbai
Sub Area.
7.Beauna Vista Shares the common boundary wall with Mumbai
Sub Area.
8.Shangrila 30-40 mtrs from the gate of Mumbai Sub- area.
9.Wind Mere Shares a common boundary wall with Station
Work Shopand HQ Mumbai Sub Area.
10.Oyster and
Dolphin Within Colaba Defence Station.
11.World Trade
Centre 100-150 mtrs from the gate of Station Work
Shop.
12.DSK
Durgamata 150-160 mtrs from the gate of Mumbai Sub
area
13.IDBI Tower 100-150 mtrs from Naval ships and residence of
FOC-in-C (Flat officer Commanding-in-Chief),
58 / 98 WP/452/2012
Western Naval Command.
14.BSE 100-150 mtrs from Western Naval Fleet.
Thus, the action of the petitioner in instituting petition only
against the building of the 4 th respondent is both arbitrary and
discriminatory which is violative of Article 14 of the Constitution
of India.
65. He submitted that though the building of the 4 th respondent
is alleged to be a security threat, the said building is vacant and
unguarded for the past 5 years. ig No efforts are made by the
petitioner or the Navy to secure the building from the security
point of view. Apart from this, the plot next to that of 4 th
respondent is now reserved by the Mumbai Metro for
construction of a Metro Station where the public will embark and
get inside and have an easy access to the Colaba Defence
Establishment area. However, to the best of the information and
belief of the 4th respondent, no objection has been raised as
regards the security threat posed by the said Metro Station by
the petitioner.
66. Mr. Seervai submitted that the Circulars/Guidelines are
issued by the State Government as well as Ministry of Defence on
4.11.2010, 18.5.2011, 21.2.2015, 18.3.2015 and 17.11.2015. All
these Circulars have been issued after the completion of the
construction of the building and none of them apply to the
59 / 98 WP/452/2012
building as those Circulars/Guidelines will apply prospectively.
67. Mr. Seervai also distinguished the decisions relied by the
petitioner in (1) TCI Industries Limited, (2) SSV Developers and
(3) Oswal Agro Mills. He submits that these judgments will have
to be considered in the light of the facts obtaining in those cases.
A little difference in the facts or additional facts makes a
significant difference to the precendiary value. In support of
this proposition, he relied upon the following decisions.
(1)Union of India Vs. Dhanwanti Devi, (1996) 6 SCC 44 and in
particular paragraphs 9 and 10 thereof.
(2)State of M.P. Vs. Narmada Bachao Andolan (supra) and in
particular paragraphs 64 thereof.
He submitted that the decisions in TCI Industries Limited, SSV
Developers and Oswal Agro Mills do not constitute binding
precedent since the facts and circumstances of those cases are
entirely different in material aspect from those in the present
case.
68. He submitted that both in TCI Industries Limited and SSV
Developers, the Navy which operates a war station in Mumbai,
namely the Western Naval Command, had at the very outset and
from the very beginning raised objections to the proposed
construction by the concerned developers adjacent to/in the
immediate vicinity of INS Shikra at Colaba (active war station for
60 / 98 WP/452/2012
operation of Helicopters 365 days) and INS Trata at Worli. The
Navy was alert and acted with all promptitude and seriousness to
prevent any constructions once it genuinely perceived a security
threat that would be caused by the proposed construction.
Similar was the case in Oswal Agro Mills where HPCL also
persistently objected from the inception on grounds of security.
69. In TCI Industries Limited (supra) and SSV Developers
(supra), the Navy insisted with the Corporation to ensure that the
developer sought from the Navy a NOC. The Navy refused to
grant an NOC on security grounds. In both these cases the
developers challenged the refusal to give NOC. In fact, in the
present case, the Defence Establishment had issued NOC on
5.4.2000 which was acted upon by the Planning Authority who in
turn granted permissions to the 4th respondent and the 4th
respondent constructed and completed a 31 storey building to
the knowledge of the Army and without any objection or dissent
from the Army. The Army and Navy never objected to the
construction of the building over a period of 5 years since they
never perceived it as a security threat. There was no protest and
no complaint made either with the planning authority, the State
Government or the 4th respondent. Between 2003 and 2011 the
only aspect of security that was concerned to the Navy and the
Army was as to the genuineness of the credentials and
61 / 98 WP/452/2012
antecedents of members of the 4 th respondent and the flats
should not be permitted to be let out to foreign nationals.He
further submitted that whereas in Writ Petition No.369 of 2011,
the petitioner contended that 1967 DCR are applicable, in the
present case they are relying upon 1991 DCR.
70. Without prejudice to the above submissions, Mr. Seervai
submitted that this Court in TCI Industries Limited and SSV
Developers has erroneously interpreted the powers of the
Planning Authority under DCR 16(a), (e) (n).
ig These Judgments
also erroneously interpreted the provisions of the said Act when
holding that invocation of the provisions of that Act was not the
only method by which security could be ensured in and around
works of defence. These judgments erroneously distinguished
the binding decision of the Division Bench of this Court in Lok
Holding and Construction Ltd (supra) on the ground that the said
decision did not lay down any law.
71. Mr. Seervai submitted that the petitioner by its act and
representation is estopped from seeking demolition of building
on the ground that it constitutes a security threat or to even
contend that it constitutes a security threat. The record before
this Court unmistakably shows that the petitioner, fully
conscious and aware of ongoing construction over a period of five
years, led respondent no.4 to believe that it has no objection on
62 / 98 WP/452/2012
security grounds or otherwise to the construction of a 31 multi-
storey building, both by its conduct or its representation.
Respondent no.4 and their members altered their position by
investing crores of rupees as well as by taking loans from
financial institutions. The situation has become irreversible due
to the conduct of the petitioner. He, therefore, submitted that the
petition being thoroughly misconceived is liable to dismissed.
CONSIDERATION
72. We have recorded the above submissions in great details,
lest, we are accused of not correctly depicting the submissions as
they were canvassed before us. We have carefully considered
the rival submissions advanced by the learned counsel appearing
for the parties. We have also carefully perused the material on
record. In our opinion, following questions fall for our
determination.
(i) Whether, in the facts and circumstances of the case,
NOC of Defence Establishment is necessary?
(ii) Whether communication dated 5.4.2000 addressed
by HQ, MG&G Area to Collector Mumbai at Exhibit 'T' page
334, constitutes NOC of Defence Establishment?
(iii) Whether it is mandatory duty of respondent no.3-
MMRDA being the Planning Authority to impose condition of
obtaining NOC from Defence Establishment?
63 / 98 WP/452/2012
(iv) Whether Respondent no.3-MMRDA could have waived
condition (v) in communication dated 11.7.2005 and
condition no.5 in communication dated 6.9.2005 granting
permission to carry out construction upto plinth level only
and in fact waived those conditions?
(v) Whether the petitioner is to necessarily invoke the
provisions of the Works of Defence Act,1903 or whether
they can invoke provisions of MR&TP Act, and 1991 DCR?
(vi) Whether the building constructed by respondent no.4
poses a security threat to Defence Establishment?
(vii) Whether the Petition is liable to be dismissed on the
ground of gross delay and laches?
73. The discussion on questions no.(i) and (iii) will be
overlapping and, therefore, these questions are answered
together
Re: Questions No.(i) and (iii)
In the facts and circumstances of the case,
(i) Whether NOC of Defence Establishment is necessary?
(iii) Whether it is mandatory duty of respondent no.3-
MMRDA being the Planning Authority to impose condition of
obtaining NOC from Defence Establishment?
In order to consider these questions, it is necessary to deal with
the correspondence exchanged between the parties in that
64 / 98 WP/452/2012
regard.
74. On 29.3.2000, Collector, Mumbai addressed a letter to
GOC, HQ, MG&G Area Colaba setting out therein that the Chief
Promoter of the society requested to the Government for
allotment of land situate near plot no.6, Block-VI for residents of
staff members of Defence Service Personnel. On 27.3.2000, at
the time of site inspection it was revealed that the Military
Department had constructed a wall to the above plot and hence
the government land is protected from encroachment. The same
land is applied by the society. A request was, therefore, made to
confirm that there is no objection to allot the land to the
proposed society of service personnel by the Government
of Maharashtra.
(emphasis supplied)
75. On 30.3.2000, HQ, MG&G Area addressed a letter to DEO
Mumbai enclosing therewith communication dated 29.3.2000
addressed by Collector, Mumbai by GOC, HQ MG&G Area and
requested DEO to confirm the status of the said land,
i.e.whether the State Government or Defence land by
1.4.2000. (i.e. hardly in 2 days)
(emphasis supplied)
76. On the same day, i.e. on 30.3.2000, Mr. M.G.Guruswamy,
DEO, Mumbai Circle addressed a letter to HQ, MG&G Area
65 / 98 WP/452/2012
referring the letter dated 30.3.2000 and it was stated that "it is
verified from our records that the land in question forms part of
Block-VI of Colaba Division (Back Bay Reclamation Scheme-VI)
which belongs to the Government of Maharashtra and
falls outside defence boundary.
(emphasis supplied)
77. Again on the same day, i.e. on 30.3.2000, HQ Mumbai Sub
Area (Station Cell) addressed a letter to HQ, M&G Area setting
out therein that "as per records available with this office, the
Army land does not fall in Block-VI of Colaba Division. The DEO
vide their letter no.BEO/STATS/100-A-XIV/130 dated 7.11.1997
has intimated that a piece of State Government land is in
occupation of Army in the form of garden at Block-VI (copy Att.).
It is also submitted that Army land in Colaba forms part of Block-
VI, Block VIII and Colaba promontory.
78. On 5.4.2000, HQ, M&G Area informed Collector, Mumbai
that the land falls in Block VI of Colaba Division (Back Bay
Reclamation Scheme-VI) which falls outside the Defence
Boundary. Necessary action at your end maybe taken as
deemed fit for the welfare of service personnel/Ex-
servicemen/their widows."
(emphasis supplied)
79. Mr.Khambata relied upon Section 46 of MR&TP Act as also
66 / 98 WP/452/2012
regulations 16(a), (e) and (n) and also decisions in (1) TCI
Industries Limited (supra), (2) Hindustan Petroleum Corporation
Ltd (supra), (3) SSV Developers (supra) and (4) Oswal Agro Mills
(supra). He submitted that respondent no.4 society has admitted
that decision of this Court in TCI Industries Limited (supra)
squarely applies to the present case. He relied upon the
assertions made by respondent no.4 in Intervention Application
No.2 of 2014 filed by it in SLP (Civil) No.10381 of 2012. In the
case of Hindustan Petroleum Corporation Ltd (supra), the
Division Bench of this Court has held in paragraphs 48, 55 and 56
thus:
"48. .. We are of the opinion that it is not only the power but
also duty of the Municipal Commissioner to consider
the security aspect in public interest before granting
permission to develop any land.
55. In our view security as well as health aspects are
crucial and are of equal concern and are of fundamental
necessity that the Planning Authorities, the Government and
the Public bodies, who are entrusted with the task of
deciding on the location of residential areas, must be alive
to these very read and basic necessities at all times. We
are of the view that the court cannot permit any
compromise or leniency on these issues by public
body or even individuals. ... "
56. In our view, the security and health aspect in respect
of public at large is a part of planning which the authorities
ought to have considered as a mandatory duty before
sanctioning any plan or permitting development."
(emphasis supplied)
80. In TCI Industries Limited the Division Bench also dealt with
67 / 98 WP/452/2012
Section 46 of the MR&TP Act and observed in paragraphs 15,
17,18 and 19 thus:
"15. .. .. 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 .. .. "
"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. 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 contrary, it is the
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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. ... .... 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."
81. The decision of TCI Industries Limited (supra) was followed
by the Division Bench of this Court in SSV Developers (supra)
and in particular paragraph 22 thereof. In paragraph 23, the
Division Bench extracted paragraph 31 of TCI Industries case
wherein the Division Bench in TCI Industries referred to a decision
of the Division Bench of this Court in the case of Lok Holding and
Construction Ltd and thereafter observed thus:
"In such circumstances, it would be contrary to judicial
discipline to rely upon earlier Division Bench judgment 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."
We will deal with decision of Lok Holding and Construction Ltd a
little later.
69 / 98 WP/452/2012
82. In paragraph 22 of Oswal Agro Mills Ltd (supra), the Apex
Court referred DCR 16. DCR 16 (a), (e) , (n) read thus:
"16. Requirements of Sites
No land shall be used as a site for the construction of
buildings-
(a) if the Commissioner considers that the site
is in-sanitary 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;
(b)...(d)
(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;
(f)...(m)
(n) if the proposed development is likely to
involve damage to or have deleterious impact
on or is against urban aesthetics or
environment or ecology and/or on
historical/architectural/aesthetical buildings
and precincts or is not in the public interest."
83. Mr. Seervai distinguished the decisions. He submitted that
a little difference in the facts or additional facts makes a
significant difference to the precendiary value of the decision.
He relied upon (1) Dhanvantari Devi case (supra) and in
particular paragraphs 9 and 12 and (2) Narmada Bachao Andolan
case (supra) and in particular paragraph 64 thereof. He
submitted that in the case of TCI Industries Limited (supra) and
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SSV Developers,(supra) the Navy was alert and at the very
outset had raised objection to the proposed construction by the
concerned developers. Similar was the case in Oswal Agro Mills
Ltd (supra) where HPCl persistently objected the proposed
construction from inception on the ground of security. In the
cases of TCI Industries Limited and SSV Developers, the
corporation refused to grant NOC on security grounds which
were challenged by the petitioner. He submitted that in the
present case, NOC is issued by Defence Establishment on
5.4.2000 and in any case, the condition imposed in
Commencement Certificate dated 6.9.2005 was complied by
respondent no.4 and, therefore, respondent no.3 did not
incorporate the said condition in subsequent permissions. In the
present case after obtaining all development permissions from
the Planning Authorities, respondent no.4 has put up
construction whereas in the case of TCI Industries Ltd, SSV
Developers and Oswal Agro Mill, the construction was not
substantially progressed.
Section 46 of the MR&TP Act reads thus:
"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."
71 / 98 WP/452/2012
Perusal of Section 46 extracted herein above shows that while
considering the application for permission, the Planning Authority
has to have due regard to the provisions of any draft or final
plan or proposal published by means of notice submitted or
sanctioned under the Act. Scope of Section 46 was considered by
the Apex Court in the case of S.N.Rao (supra). In paragraph 8, it
was observed thus:
"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 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 appellant
authority was justified in allowing the appeal."
84. Thus, the Apex Court has categorically held that if there is
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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 grant or refusal to grant sanction of any
development. We have already extracted paragraphs 17 and 18
of TCI Industries Judgment. The said decision was quoted with
approval in SSV Developers (supra) as also in paragraph 49 of
HPCL Ltd (supra). The decision of this Court in HPCL is
confirmed by the Apex Court in Oswal Agro Mill Limited (supra).
85 In view of the aforesaid pronouncement, we are firmly of
the view that NOC of Defence Establishment is necessary and in
fact it is mandatory duty of the planning Authority to insist for
NOC of Defence Establishment while considering proposal for
building permissions. Questions no.(i) and (iii) are answered
accordingly.
Re: Questions No.(ii)
Wether communication dated 5.4.2000 addressed by HQ,
MG&G Area to Collector Mumbai at Exhibit 'T' page 334,
constitutes NOC of Defence Establishment?
86. We have already extracted in detail the relevant
correspondence. Perusal of the correspondence clearly shows
that the correspondence was exchanged with a view to
ascertaining ownership of the subject land, namely whether it
belongs to the State Government or Defence Establishment as
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also for allotment of land. In fact, from that point of view,
correspondence for no objection for allotment of the land to
respondent no.4 was made. The letters dated 30.3.2000 at page
332 and 5.4.2000 at page 334 clearly show that DEO and HQ,
MG&G Area confirmed that the subject land belongs to the
Government of Maharashtra and fell outside the Defence
Boundary. NOC was not sought for by Collector Mumbai from the
security point of view. The reading of correspondence extracted
herein above clearly shows that the NOC was sought from
Defence Establishment for allotment of land and not from
security point of view and therefore it does not constitute NOC of
Defence Establishment from security point of view. That apart,
on 21.6.2005, Team One Architects of respondent no.4 submitted
proposal to respondent no.3 for construction of building and
enclosed documents 1 to 18 enumerated therein. Perusal of this
letter shows that respondent no.4 did not enclose NOC from
Defence Establishment. After examining the proposal, on
11.7.2005 respondent no.3 MMRDA communicated deficiencies in
the proposal submitted by respondent no.4. By clause (v), it was
informed to the Architects of respondent no.4 that plot under
reference is very close to the defence area known as Navy Nagar
and the proposed height of the building is 54.9 meters. Hence
clearance from Defence Department (Navy Department) be
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obtained from security point of view and the same is not
submitted.
87. On 13.7.2005, respondent no.4 replied the said letter. It
was submitted that the plot falls in Block VI of Colaba Division
where Defence Department owns no land. There are already
high-rise buildings in the vicinity like IDBI towers, World Trade
Center etc. In the light of this, NOC from Defence Authority
should not be insisted upon. However, the NOC from Defence
Authority is enclosed as desired by MMRDA.
88. It is not in dispute that along with this letter, Architects of
respondent no.4 enclosed communication dated 5.4.2000. We
have already held that said communication does not constitute
NOC of Defence Establishment. In fact, on 6.9.2005 while
granting permission for construction upto plinth level specifically
imposed condition no.5 calling upon Architects of respondent
no.4 to obtain NOC from Army Department before seeking
approval above the plinth level.
89. It is, therefore, material to note that in the first place,
respondent no.3-MMRDA was not satisfied with the response
dated 13.7.2005 given by the Architects of respondent no.4 to
the effect that the NOC from Defence Establishment need not be
insisted upon and the case of respondent no.4 that
communication dated 5.4.2000 NOC from Defence Department
75 / 98 WP/452/2012
was not accepted by respondent no.3-MMRDA. Secondlym it is
material to note that at no point of time respondent no.4 made
grievance about imposition of that condition by MMRDA in
Commencement Certificate dated 6.9.2005 on the ground that
respondent no.4 had already obtained NOC from Defence
Establishment on 5.4.2000 and, therefore the said condition may
be deleted.
90. Mr. Seervai relied upon the letter dated 20.11.2006
addressed by Architects of respondent no.4 and in particular
clause (v) thereof wherein it is stated that NOC from Army
Department (Defence) has been complied with vide letter dated
13.7.2005. Respondent no.3 treated communication dated
5.4.2000 as NOC from Defence Establishment. Communication
dated 16.12.2006 of the corporation records that Architects of
the 4th respondent has complied with most of the conditions
except no.1 NOC from E.E.T.C. for parking purpose and about
debris management plan. In other words, the Corporation also
treated the communication dated 5.4.2000 constituting NOC of
Defence. We find no merit in this submission. In the light of this
discussion, question no.(ii) is answered to the effect that the
communication dated 5.4.2000 does not constitute NOC.
Re: Questions No.(iv)
Whether Respondent no.3-MMRDA could have waived
76 / 98 WP/452/2012
condition (v) in communication dated 11.7.2005 and
condition no.5 in communication dated 6.9.2005 granting
permission to carry out construction upto plinth level only
and in fact waived those conditions?
91. We have also perused files tendered by Ms Bhagalia
dealing with the condition imposed by MMRDA for obtaining NOC
from the Defence Establishment for finding out whether
respondent no.3 has in fact waived the said condition.
92. In the first place, in the light of the decisions of this Court
in TCI Industries Limited, SSV Developers, HPCL as also the
decision of the Apex Court in Oswal Agro Mills, we have held that
it is the mandatory duty of the Planning Authority to insist upon
NOC from the Defence Establishment. In other words, MMRDA
could not have waived that condition. In fact, as noted earlier, on
11.7.2005 and 6.9.2005 MMRDA specifically imposed that
condition. What is relevant to note is that while granting
permission on 6.9.2005 to carry out construction upto plinth
level, respondent no.3 specifically called upon the Architects of
respondent no.4 to obtain NOC from Defence Establishment
before seeking approval above plinth level. In other words, on
the basis of permission dated 6.9.2005, respondent no.4 was
permitted to carry out construction only upto plinth level.
Respondent no.4 was thereafter expected to obtain NOC from
Defence Establishment and thereafter only proceed with
77 / 98 WP/452/2012
construction above the plaint level. Perusal of the original files
does not indicate that respondent no.3 MMRDA has factually
waived that condition. This, in law, respondent no.3 could not
have waived that condition and on facts also did not waive the
said condition. Question no. (iv) is answered accordingly.
Re: Questions No.(v)
Whether the petitioner is to necessarily invoke the
provisions of the Works of Defence Act,1903 or whether they
can invoke provisions of MR&TP Act, and 1991 DCR?
93.
This aspect was also considered by the Division Bench of
this Court in TCI Industries Limited (supra). In paragraph 20, it
was observed thus:
"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
78 / 98 WP/452/2012
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 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."
94. In paragraph 31, the Division Bench referred to the
decision of this Court in the case of Lok Holding and
Construction Limited (supra) and observed thus;
"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
79 / 98 WP/452/2012
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 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."
95. Now, we will deal with the decision of Lok Holding and
Construction Ltd (supra) to which one of us (R.G.Ketkar, J.) was a
80 / 98 WP/452/2012
party. Mr. Seervai submitted that the Division Bench in TCI
Industries Limited wrongly held that no law has been laid down
by the Division Bench in that case. We do not agree with this
submission for more than one reason. In the case of Lok Holding
and Construction Ltd (supra), IOD and Commencement
Certificate were cancelled by the Corporation, principally, on two
grounds, namely, firstly, access to the plot of the petitioner was
not available and secondly, objection was raised by the Defence
Authority for raising construction on the plot on
ig security
grounds. As far as the first ground is concerned, the petitioner
relied upon the decree passed by Competent Court in their
favour granting access to the petitioner's plot where
construction was proposed to be made. As far as the second
ground is concerned, in paragraph 4, the Division Bench
observed thus:
"In our opinion, as there is a statutory enactment occupying
the field, viz. The Works of Defence Act, 1903, the
government may not have the power to issue such
instructions in respect of defence establishment in
relation to which there is no Notification as
contemplated by the provisions of the said Act."
(emphasis supplied.
Perusal of the extracted portion shows that this Court did not
record positive finding that in the absence of Notification under
the said Act, the Government has no power to issue instructions
contained in letter dated 4.11.2010. It was observed that
81 / 98 WP/452/2012
"Government may not have power to issue such instructions in
respect of Defence Establishment in relation to which there is no
Notification as contemplated by the provisions of the said Act."
Secondly, provisions of Section 46 and DCR 16 were also not
brought to the notice of this Court. We, therefore, respectfully
agree that the observations made in paragraph 31 by the
Division Bench in TCI Industries Ltd that the said decision does
not lay down any law as also the provisions of Section 46 of the
MR&TP Act and DCR 16 were not brought to the notice of the
Division Bench in that case.
96. In the light of the aforesaid decisions, we are clearly of the
opinion that the provisions of the Defence of Works Act are not
sole repository for prohibiting construction activities near
Defence Establishment and the petitioner can certainly invoke
Section 46 and DCR 16. Question no.(v) is answered accordingly.
Re: Questions No.(vi)
Whether the building constructed by respondent no.4 poses
a security threat to Defence Establishment?
97. We have carefully gone through assertions in paragraphs
3(iii), (iv),(v),(a) to (h) as also the photographs annexed at
Exhibit-B Collectively (Pages 48 to 57 of Writ Petition).
98. In the case of TCI Industries Ltd, the Division Bench of this
Court observed in paragraph 37 as under :
82 / 98 WP/452/2012
"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... .."
99. In the case of Akbar Travel of India (Pvt) Ltd (supra), the
Division Bench has observed in paragraph 31 thus :
"31. We cannot transgress the limits of writ jurisdiction by
sitting in judgment over the actions of Intelligence Agencies.
These agencies manned by experts, who are in the best are
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 malafides are alleged, their
actions ought not be interfered. "
In the case of Narangs International Hotels Pvt Ltd (supra), the
Division Bench of this Court observed in paragraph 11 thus:-
"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
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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
malafides. 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 malafide."
100. Perusal of the photographs at Exhibit-B Collectively clearly
shows that the building of the 4th respondent is located on the
'neck' joining Colaba Island and is the tallest building in the
vicinity of CMS. The photographs taken from various storeys of
Adarsha building show that it is the best vantage point from
which CMS and various parts of it can be surveyed and
monitored. From this building, complete observation of military
equipments, vehicles and personnel moving into and out of the
area can be facilitated.
101. Important installations are located within 350 meters of the
Adarsh building and are well within the ranges of various small
arm hand held weapons. Sensitive installations that stand in
close proximity and can be targeted to Adarsh building including
Storage and Disbursal Depot for petrol, oil and lubricants, Army
supply depot, Navy Supply Depot and MES Pumping station.
Enhanced surveillance technologies which are available to
terrorists could be used from the spy on and transmit live feeds
of the activities within the CMS. HQ MG&G Area and HQ MSA ,
84 / 98 WP/452/2012
which operate as command posts and nerve centres of activity
in case of operational necessity, are located in close proximity to
the Adarsh building. They can be seriously crippled by small
arms hand held weapons. The entire top decision making
echelons of the Army are situate in HQ MG&G Area, and can be
eliminated with sniper rifles wielded from the Adarsh building.
102. We find that this is a bonafide perception of the Army
Authorities. As against this, respondent no.4 contended that the
construction of the building was taking place in front of eyes of
officers of the petitioner. They never raised any objection to the
construction of the building. In fact, public notice was issued in
daily newspaper on 19.10.2005 thereby informing public at large
that it can be granted building permission by the Planning
Authority and it proposes to start construction in compliance with
the same. The petitioner did not raise any objection to the
aforesaid notice. The record shows that from 2003 to 2011 the
only objection raised by the petitioner was as regards the
personnel who would become members of the society. The
petitioner only wanted to verify the antecedents and credentials
of the members of the society. He submitted that Army is having
a peace station in Colaba Defence Establishment. There are
several high-rise buildings, namely, Daulat Shireen, Buena Vista,
Connaught Barracks, Usha Sadan, Shangrila and Windmere and
85 / 98 WP/452/2012
many others which are totally overlooking into the MG&G Area
and Army and Navy area in Colaba. Durgamata Towers, a 32
storey (approximately 112 meters) building constructed in the
year 2006 totally occupied by civilians and is dominating the
Army and Navy Military stations. The Navy's Western Fleet is
located adjacent to the Gateway of India and is dominated by Taj
Mahal Hotel which is visited by foreigners. Similarly, Bombay
Stock Exchange and Reserve Bank of India buildings overlook the
entire Naval areas. Two high rise buildings known as Oyster and
Dolphin owned are located within CMS.
103. In our opinion, respondent no.4-Society has not seriously
disputed that Adarsh building poses a security threat. What is
contended is that other high rise buildings are located in the
proximity of CMS and they also similarly pose security threat to
CMS. However, the petitioner has not made complaint against
those buildings. The petitioner has only singled out the building
of the 4th respondent. From the data placed on record by the
petitioner, we are satisfied that having regard to location of the
building of the 4th respondent, it poses security threat to CMS.
The arguments advanced by the 4 th respondent are peripheral
and do not touch the heart of the matter, namely that the
building of the 4th respondent society poses the security threat.
104. As held by the Division Bench of this Court in TCI Industries
86 / 98 WP/452/2012
(supra) and Akbar Travel of India (Pvt) Ltd (supra) as also
Nagangs International Hotels Pvt Ltd (supra) whether the
security point raised by the petitioner is merely a bogey or a
matter of substance is not a question which the Court can decide
in a petition under Article 226 of the Constitution of India. 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. 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. The writ court does not possess
any expertise in such cases. The Court cannot indulge in guess
work and hold that the security concern expressed by the
petitioner is not bonafide. In the present case, security of CMS
is involved and we are not prepared to accept that for any
extraneous reason the present petition is instituted.
105. It has come on record and is not disputed that Oyster and
Dolphin buildings came up in late 1960. Both buildings are 12
storeyed high rise buildings. Earlier these buildings were
occupied by military personnel and today they are occupied by
civilians. The fact that the nature of threat to the security of
nation has undergone a vast change over the last decade with
terrorism emerging as a source of major and unconventional
87 / 98 WP/452/2012
danger need not be over emphasized. The assessment of such
threats has heightened and the precautionary measures taken
against them are expanded. In 2007 blast in local train in
Mumbai occurred. On 26.11.2008 a terror attack occurred in
Mumbai. Times have changed. People have changed. Technology
has advanced. New techniques are employed. Increase of
terrorism is accepted international phenomenon. Respondent
no.4 has also not seriously disputed the specific assertions made
in paragraphs 3(iii) to (v). The photographs at Exhibit
collectively produced on record substantiates the perception
expressed by the petitioner. Having regard to location of the
Adarsh building, we are satisfied that the building constructed by
respondent no.4 poses a security threat to the Defence
Establishment. Point no. (vi) is answered accordingly.
Re: Question No.(vii)
Whether the Petition is liable to be dismissed on the ground
of gross delay and laches?
106. Mr.Khambata submitted that even where matters of public
interest and national security are not involved, the Courts have
entertained writ petitions after long periods of time. It is settled
principles of law that issuance of writs is a matter court's
discretion, although delay and laches are factors to be taken into
consideration and they are not absolute bars to relief. He relied
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upon decisions in (1) P.B.Roy (supra), (2) State of Karnataka
(supra) and State of M.P. (supra).
107. On the other hand, Mr. Seervai submitted that the
petitioner has belatedly targeted a stand alone building in an
area which is completely developed after the building was
constructed, completed and was granted Occupation Certificate.
He further submitted that while exercising powers under Article
226 of the Constitution of India, the Court is required to weigh
the explanation offered for the delay and laches and consider if
the explanation offered is credible or believable. He relied upon
decisions:
(i) Chennai Metropolitan Water Supply and Sewarage
Board (supra) and in particular paragraphs 13 to 17;
(ii) State of M.P. (supra) and in particular paragraphs 19
to 25.
(iii) Narmada Bachao Andolan case (supra) and in
particular paragraphs 17 to 20.
108. In the case of P.B.Roy (supra), the Apex Court referred to
decision of the majority of Full Bench of of the Punjab High Court
in S. Gurmej Singh V. Election Tribunal, Gurdaspur, AIR 1964
Punjab 337 (FB), wherein it is held that the delay in filing the
petition was overlooked on the ground that after the admission of
a writ petition and hearing of arguments, the rule that delay may
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defeat the rights of a party is relaxed and need not be applied if
his case is "positively good".
109. In the case of State of Karnataka (supra), the Apex Court
considered the decision inf State (NCT of Delhi) Vs. Ahmed Jaan
(2008) 14 SCC 582. In paragraph 11 of that report, it was
observed that decisions are taken by officers/agencies
proverbially at slow pace and encumbered process of pushing the
files from table to table and keeping it on table for considerable
time causing delay, intentional or otherwise, is a routine. If the
appeals brought by the State are lost for such default no person
is individually affected but what in the ultimate analysis suffers,
is public interest. In paragraph 15, after considering other
decisions, it was noted that adoption of strict standard of proof
sometimes fail to protect public justice and it would result in
public mischief by skillful management of delay in the process of
filing an appeal.
110. Mr. Seervai relied upon paragraphs 13 to 17 of of Chennai
Metropolitan Water Supply and Sewerage Board (supra). In that
case, the respondent was appointed as a Surveyor in the Board.
He was promoted as Jr. Engineer in the year 1989. From
28.8.1995 he remained continuously absent from duty without
any intimation to the employer and did not respond to the
repeated memoranda/reminders requiring him to explain his
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unauthorised absence from duty and to rejoin duty. On 11.9.1996
chargesheet was issued to him. On 1.4.1997 he reported to duty
with medical certificate for his absence from duty for the period
commencement from 28.8.1995 to 31.3.1997. The inquiry was
conducted against him and the inquiry officer found charges
levelled against the respondent proved. The order of dismissal
was passed on 16.4.1998. The Appeal preferred by the
respondent was rejected by the Board on 30.6.1998. Aggrieved
by the order of dismissal the respondent instituted writ petition in
the High Court of Judicature of Madras. The learned Single Judge
directed reconsideration of the appeal solely on the ground that
the Managing Director who was disciplinary authority had taken
part in the proceedings of the Board which decided the appeal.
The Appellate Authority thereafter dismissed the appeal on
1.7.2003. The respondent instituted Writ Petition No.25673 of
2007 on 7.7.2007. The learned Single Judge allowed the writ
petition and order reinstatement with continuity of service
without back wages. The Division Bench dismissed the writ
appeal preferred by the appellant. It is against these decisions,
the appellant moved the Apex Court.
111. In paragraph 13, the Apex Court referred to paragraph of
Balwant Regular Motor Service AIR 1969 SC 329 wherein it is
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observed that "But in every case, if an argument against relief,
which otherwise would be just, is founded upon mere delay, that
delay of course not amounting to a bar by any statute of
limitations, the validity of that defence must be tried upon
principles of substantially equitable. Two circumstances, always
important in such cases are, the length of the delay and the
nature of the acts done during interval, which might affect either
party and cause a balance of justice or injustice in taking the one
course or other in so far as it relates to the remedy. The Apex
Court also referred to the decision of State of M.P Vs. Nandlal
Jaiswal (supra). In paragraph 16, it was further observed that "in
certain circumstances delay and laches may not be fatal but in
most circumstances inordinate delay would only invite disaster
for the litigant who knocks at the doors of the court. Delay
reflects inactivity and inaction on the part of a litigant - a litigant
who has forgotten the basic norms, namely, "procrastination is
the greatest thief of time" and second, law does not permit one
to sleep and rise like a phoenix.
112. Mr. Seervai relied upon paragraphs 17 to 20 of State of M.P.
Vs. Nabarada Bachao Andolan (supra). In paragraph 17 of that
case, the Apex Court noted that construction of dam started in
October 2002 was completed in 2006. No objection had ever
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been raised by NBA at any stage. The Narmada Development
Authority gave permission by order dated 28.3.2007 to National
Hydraulic Development Corporation to raise the water level of
the Dam to 189 meter upon showing that rehabilitation of
oustees of five villages adversely affected at 189 meter had
already been completed. The Apex Court held that the
petitioner was guilty of laches in not approaching the Court at
earlier point of time.
113. In the present case, it has come on record that on
16.6.2003 letter was addressed by DEO Mumbai Circle to Sri
Pradeep Vyas, IAS, Collector Mumbai wherein it was stated that a
multy-storeyed high rise of private individual in the subject plot
would dominate entire area of Army and Navy Area and other
sensitive installations like TIFR. Thus, suitability of privately
owned high rise may invite security implications in the longer
run. That apart, on 11.7.2005 MMRDA has imposed condition (v)
calling upon Architects of respondent no.4-society to obtain
clearance from Defence Department (Navy Department)
from security point of view and the same is not submitted.
On 6.9.2005, while granting permission for construction upto
plinth level, condition no (v) was imposed by MMRDA requiring
respondent no.4-society to obtain NOC from Army department
before seeking approval upto plinth level. We have already held
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that respondent no.4 has not obtained NOC and in fact and in
law, MMRDA did not and could not have waived that condition.
114. Mr.Seervai relied upon the decision in State of M.P. Vs.
Nandlal Jaiswal, (supra) and in particular paragraphs 19 to 25. In
that case, the Sub-Committee, inter-alia, made
recommendations, namely:
(A) Transfer of ownership of distilleries;
(B)Allotment of lands for construction of distilleries at new
places;
(C) Letter of Intent, for grant of D.2 Licences;
(D) Construction of lagoon, etc., for making arrangement
for passing water from distilleries;
(E) Construction of laboratories for liquor test;
(F) Arrangement for manufacturing liquor from mahuwa;
(G) Period of D.2 licences;
(H) Fixation of liquor price;
(I) Control of Excise Department on the distilleries.
115. The Finance Department submitted a report raising certain
points against the recommendations made in the report of
Cabinet Sub- Committee. Cabinet Committee in its meeting held
on 30.12.1984 endorsed recommendations of Cabinet Sub-
Committee. Pursuant to the policy decision dated 30.12.1984, a
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LOI dated 1.2.1985 was issued. This was followed by a Deed of
Agreement dated 2.2.1985 executed by and between the
Governor of Madhya Pradesh acting through the Excise
Commissioner and each of respondents 5 to 11. Pursuant to the
Letter of Intent and the Deed of Agreement, each of respondents
5 to 11 selected with the approval of the State Government the
new site at which the distillery should be located, purchased land
at such new site, started constructing buildings for housing the
distillery and placed orders for purchase of plant and machinery
to be installed in the distillery. The Apex Court considered the
question of laches and delay in filing the writ petitions from
paragraphs 23 onwards and it was observed that the petitioners
were guilty of gross delay in filing writ petitions with the result
that by the time the writ petitions came to be filed, respondents
5 to 11 had, pursuant to the policy decision dated 30.12.1984,
altered their position by incurring huge expenditure towards
setting up the distilleries.
116. In paragraph 24, it was observed that if there is inordinate
delay on the part of the petitioner in filing a writ petition and
such delay is not satisfactorily explained, the High Court may
decline to intervene and grant relief in the exercise of its
writ jurisdiction. The evolution of this rule of laches or delay is
premised upon a number of factors. The rule of laches or
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delay is not a rigid rule which can be cast in a strait-
jacket formula, for there may be cases where despite
delay and creation of third party rights the High Court
may still in the exercise of its discretion interfere and
grant relief to the petitioner. But, such cases where the
demand of justice is so compelling that the High Court
would be inclined to interfere inspite of delay or creation
of third party rights would by their very nature be few
and far between. Ultimately it would be a matter within
the discretion of the Court; ex hypothesis every discretion
must be exercised fairly and justly so as to promote
justice and not to defeat it.
(emphasis supplied)
117. In the present case, the petitioner has raised a very
serious issue about security threat posed by the building of the
4th respondent. When national interest is pitted against private
interest, naturally national interest must be protected as against
the private interest. Technical objections of delay and latches will
not come in the way of the court in exercising its extra ordinary
jurisdiction under Article 226 which is undoubtedly equitable
jurisdiction and the Court will grant relief for protecting national
as well as public interest. We, therefore, hold that petition
cannot be dismissed on the ground of gross delay and laches.
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Question no.(vi) is answered accordingly.
118. Before parting with this matter, it is also necessary to issue
direction to the Ministry of Defence. As noted earlier, building of
the 4th respondent is on the neck joining Colaba Island. The
petitioner has contended that GOCs between 1999 and
13.7.2010 and their family members were allotted flats in Adarsh
building. We do not intend to comment on the role of these
officers as they are not made party to the petition. It is, however
necessary to find out as to why the petition was not instituted at
the earliest available opportunity. Ministry of Defence is,
therefore, directed to hold an in-depth inquiry for finding out
lapses or reasons on the part of its officers for not instituting writ
petition at the earliest available opportunity as also finding out
whether these GOCs compromised with security of CMS in lieu of
allotment of flats in the building of the 4th respondent-society.
119. In the light of the aforesaid discussion, we prohibit
respondents no. 1 to 3, namely (1) State of Maharashtra through
Secretary, Urban Development Department, (2) The Mumbai
Municipal Corporation of Greater Mumbai, through Municipal
Commissioner, (3) The Mumbai Metropolitan Regional
Development Authority, through its Metropolitan Commissioner)
from granting any building/development permissions in the
vicinity of and/or within the Colaba Military Station without an
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NOC from the Army Authorities.
120. We further direct respondents no.1 to 3 to forthwith
demolish the building of the fourth respondent-Adarsh Co-
operative Housing Society Ltd.
121. We also direct Ministry of Defence to hold an in-depth
inquiry for finding out the lapses or reasons on the part of its
Officers for not instituting writ petition at the earliest available
opportunity as also for finding out whether the GOCs between
1999 and 13.7.2010, namely, (1) Maj.General
ig A.R.Kumar (2)
Maj.General V.S.Yadav, (3) Maj. General T.K.Kaul, (4) Maj. General
Tejinder Singh, (5) Maj.General R.K.Hooda compromised with
security of CMS in lieu of allotment of flats in the building of the
fourth respondent-Adarsh Co-operative Housing Society.
122. Rule is made absolute in the aforesaid terms. In the
circumstances of the case, there shall be no order as to costs.
123. At this stage, Mr. Seervai orally applies for stay of this order
for the period of 12 weeks from today. Learned counsel for
petitioner opposed this application.
124. Having regard to the fact that the petition is pending in this
Court since the year 2012 and respondent no.4 intends to
challenge this order in the higher court, we find that request
made by Mr. Seervai is reasonable. Hence, this order shall
remain stayed for a period of 12 weeks from today subject to
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clear understanding that no further request for extension of time
shall be entertained.
(R.G.KETKAR,J.) (RANJIT MORE,J.)
