Bombay High Court
Provincial Housings And Property ... vs Union Of India And 4 Ors on 8 September, 2016
Bench: S.C. Dharmadhikari
WP772.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.772 OF 2014
Provincial Housings and Property Ltd. ... Petitioner
v/s
Union of India and others ... Respondents
Mr. Chirag Balsara a/w Hamza Talati i/b M/s. Diamondwala &
Company for the Petitioner.
Dr. G. R. Sharma a/w Mr. D. P. Singh for Respondent Nos.1 & 2.
CORAM : S.C. DHARMADHIKARI &
B.P. COLABAWALLA JJ.
RESERVED ON : 26th August, 2016
PRONOUNCED ON : 8th September, 2016
JUDGMENT [ Per B. P. Colabawalla J. ] :-
1. Rule. By consent of parties, rule is made returnable
forthwith and heard finally.
2. By this Writ Petition, filed under Article 226 of the
Constitution of India, the Petitioner has challenged the Notification
bearing No.SRO 150 dated 19th June, 1976 (for short, the "said
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Notification") issued by the Government of India, Ministry of
Defence (Respondent No.1). This Notification is issued in exercise
of powers conferred by section 3 read with section 7(c) of the
Works of Defence Act, 1903 (for short, the "said Act"). By virtue of
this Notification, certain restrictions are imposed on the enjoyment
of land in the State of Maharashtra and more particularly described
in the Schedule thereto. Apart from challenging the said
Notification, the Petitioner has also challenged Condition No.55
imposed in the revised Letter of Intent ("LOI") dated 30th May,
2009 requiring the Petitioner to obtain the NOC of the Juhu
Wireless Station, being a Division of Respondent No.2.
3. Some basic facts need to be narrated to decide the
controversy in the present Petition. The Petitioner has been
appointed as a Developer to implement the Slum Rehabilitation
Scheme over a portion of non-agricultural land admeasuring
12,669 sq.mtrs. together with the structures standing thereon,
bearing CTS No.11, Survey No.58B of Village Juhu, J.R. Mhatre
Marg, Juhu, Mumbai 400 049 (for short, the "said property"). It is
an admitted fact that the said property is lying within a distance of
500 yards from the crest of the outer parapet wall of the Juhu
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Wireless Station. According to the Petitioner, the said property is
owned by the State of Maharashtra and is a censused slum.
4. It is averred in the Petition that in the year 1994, slum
dwellers on the said property came together with the intention of
redeveloping the said property and formed a proposed society
known as Mora Saibaba Co-operative Housing Society Ltd.
(Proposed). The said proposed society appointed the Petitioner as
the Developer for redevelopment of the said property under the
Slum Rehabilitation Scheme and accordingly, entered into a
development agreement with the Petitioner on 11th October, 1994.
It is the case of the Petitioner that since the said property was a
censused slum, the same was capable of being developed under the
Slum Rehabilitation Development ("SRD") Scheme as applicable in
the year 1995. This Scheme was approved on 16th April, 1996 and
the Municipal Corporation of Greater Mumbai also issued a LOI on
11th May, 1996 and sanctioned the said Scheme as per the terms
and conditions set out therein.
5. Thereafter, by a Notification dated 27th August 1996
and which was made final with effect from 15th October 1997, the
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State of Maharashtra gave an option for conversion of the SRD
Scheme to the Slum Rehabilitation Authority ("SRA") Scheme. In
view thereof, in relation to the said property, the Petitioner made
an application for conversion from the SRD Scheme to the SRA
Scheme. Accordingly, sanction was granted and a revised LOI
dated 6th July, 2006 was issued by the Competent Authority. It is
the case of the Petitioner that under clause 40 of the said revised
LOI dated 6th July 2006, Respondent No.3 allowed the Petitioner to
construct buildings upto a height of 19.20 mtrs.
6. It is the case of the Petitioner that thereafter there was
an increase in entitlement of the permanent alternate
accommodation to be allotted to the slum dwellers (from 225 sq.ft
to 269 sq.ft.) and accordingly, a revised LOI was issued to the
Petitioner on 30th May, 2009 by Respondent No.3. In this revised
LOI, Respondent No.3 imposed Condition No.55 requiring the
Petitioner to obtain the consent / specific remark from Respondent
No.2. Condition No.55 reads as under :-
"55. That as per the policy decision of Municipal Commissioner
u/no.MCP/1355 dtd. 2/01/2009 as the plot under reference falls
within the influence zone of military signal transmission station at
Juhu. The specific remarks in this respect must be obtained from
concerned Defence Authority before asking C.C. / endorsement of
C.C. as per the amended plan."
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7. It is the Petitioner's contention that the Respondents
had in the past expressly permitted construction upto a height of
19.20 mtrs. within 500 yards of the Juhu Wireless Station without
any requirement of any NOC from Respondent No.2. It was
therefore the Petitioner's contention that driving the Petitioner to
get the NOC from Respondent No.2 for construction upto a height
19.20 mtrs. is illegal and bad-in-law. It is in these circumstances
that this Condition No.55 has been impugned in this Writ Petition.
Despite this, and prior to Condition No.55 being inserted in the
revised LOI dated 30th May, 2009, the Petitioner, by their letter
dated 4th July, 2005 approached Respondent No.2 with a
representation to relax the height restriction imposed by
Notification dated 19th June, 1976 and allow the Petitioner to
construct buildings upto a height of 48 mtrs. It is the case of the
Petitioner that even the Civil Aviation Authority had granted
permission for construction of buildings upto a height of 48 mtrs.
Thereafter, certain information was sought for by Respondent No.2
from the Petitioner, which according to the Petitioner, was supplied
to Respondent No.2.
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8. Be that as it may, the Petitioner commenced
construction on the said property after getting due approvals for
carrying out construction upto a height of 19.20 mtrs. as per the
sanctioned plan. However, on 5th September 2009, Respondent
No.2 brought to the attention of Respondent No.4 (Municipal
Corporation of Greater Mumbai) the said Notification dated 19th
June, 1976 and directed it to stop work of construction which was
being carried out by the Petitioner on the said property and also
requested Respondent No.4 to issue necessary instructions to
ensure that all construction activities on the said property were
stopped.
9. Since the Petitioner was not getting any response from
Respondent No.2 with reference to relaxation of the height for
construction of buildings upto 48 mtrs., the Petitioner, by their
various letters to Respondent No.2 (Exhs. T-1 to T-8 to the
Petition), requested that pending such consideration, NOC be
granted for construction of buildings upto 19.20 mtrs. as per the
sanctioned plan. Thereafter, Respondent No.2 addressed a letter
dated 3rd June, 2013 to the Petitioner and requested the Petitioner
to approach the Local Military Authority through Head Quarters,
Mumbai. It is the case of the Petitioner that pursuant to the
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aforesaid letter, the Petitioner met Col. P.K. Singh when the
Petitioner was informed that no construction could be allowed and
the NOC sought for, could not be granted.
10. Thereafter, further representations were made by the
Petitioner to Respondent No.3 for waiver of the impugned Condition
No.55 as set out in the revised LOI dated 30th May, 2009 without
any success. It is in these circumstances that the Petitioner has
been constrained to approach this Court under Article 226 of the
Constitution of India impugning the said Notification dated 19th
June, 1976 as well as Condition No.55 set out in the revised LOI
dated 30th May, 2009.
11. In this backdrop, Mr Balsara, learned counsel appearing
on behalf of the Petitioner, submitted that the actions of the
Respondents in restraining the Petitioner from carrying out
construction on the said property is wholly illegal and without the
authority of law. In this regard, he placed reliance on the
Notification dated 19th June, 1976 to contend that the Notification
itself contemplated that buildings on the said property could be
constructed upto a height of 15.24 mtrs. (now increased to 19.20
mtrs.) without requiring any NOC from Respondent No.2.
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According to Mr Balsara, this being the case, Condition No.55 as set
out in the revised LOI dated 30th May, 2009 was wholly illegal and
liable to be struck down by us. He submitted that this was also the
interpretation that was put on the said Notification by the
authorities themselves considering the fact that in the past,
Respondent Nos.3 and 4 had allowed redevelopment in the vicinity
of the Juhu Wireless Station without insisting on any NOC from
Respondent No.2. In this regard, Mr Balsara brought to our
attention the averments in paragraphs 43 to 45 of the Petition.
12. Mr Balsara further submitted that the Notification
dated 19th June 1976, with the passage of time and advancement of
science and technology, has been rendered redundant and otiose.
Traditional telecommunication devices had been replaced with
latest sophisticated devices. Hence, the height of nearby buildings
would not in any manner adversely affect the working of the Juhu
Wireless Station, was the submission. According to Mr Balsara, this
Notification did not serve any purpose any further and it illegally
interfered with the rights of a person around the area to develop
their property and better their living conditions. The slum
dwellers would be forced to live in slums on the said property
though others have developed their properties, was the submission
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of Mr Balsara. Hence, the said Notification, by the efflux of time,
had become otiose, arbitrary and unjust, violating Articles 14, 21
and 300A of the Constitution of India. Mr Balsara submitted that a
law may be valid when it was enacted, but due to passage of time it
could be rendered unconstitutional. He submitted that in the facts
of the present case, though the said Notification may have been
valid when issued in 1976, but due to scientific advancement and
development in the area, the Notification had rendered itself
arbitrary and unjust and was liable to be struck down. He
submitted that the restriction of height could not be justified any
further and hence the said Notification be quashed and set aside.
13. To further this argument, Mr. Balsara also contended
that there was no security threat to the said wireless station. He
submitted that the grounds within which the said wireless station is
located, is also given on contract basis for conducting parties and
marriages etc. The public in general has free access with no specific
restrictions imposed for ingress and egress into and out of the said
grounds, during such functions. He submitted that this would
clearly indicate that the said Wireless Station is not being used for
the purpose for which it was set up and in these circumstances also
the said Notification, by the efflux of time, has been rendered
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redundant and otiose and ought to be struck down by this Court.
For all the aforesaid reasons, he submitted that the Petitioner was
entitled to the reliefs as prayed for in the Writ Petition.
14. On the other hand, Mr Sharma, learned counsel
appearing on behalf of Respondent Nos.1 and 2, contended that the
reliefs sought for in the present Writ Petition were in gross violation
of the law and more particularly, the Works of Defence Act, 1903 as
well as the said Notification issued thereunder. In this regard, he
brought to our attention certain provisions of the said Act and more
particularly, the definition of the expressions "land" and "maintain"
more particularly set out in the said Act. He thereafter also
brought to our attention the provisions of section 7 which stipulate
certain restrictions imposed on the development of land covered
under the said Act.
15. With regard to the submission of the Petitioner that due
to the efflux of time and advancement of science and technology,
the Notification dated 19th June, 1976 has been rendered
redundant and otiose, Mr. Sharma submitted that this contention
was absolutely without any merit. He submitted that the Petitioner
does not have any knowledge of the functioning of the Wireless
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Station and the effects of the height of adjoining buildings thereon.
He submitted that this Wireless Station at Juhu was of strategic
importance and played a vital role in communication to defence
forces. He therefore submitted that such irresponsible submissions
were wholly misplaced and ought to be ignored. The advancement
in technology does not wipe out the said Notification and admittedly
it is not rescinded, was the submission of Mr Sharma.
16.
Mr Sharma further submitted that as provided in
section 7(c) of the said Act, the restrictions set out therein were
applicable with reference to the Wireless Station at Juhu and the
same had been duly notified vide SRO 150 dated 19th June, 1976.
He submitted that the responsibility of implementation of the said
Notification was that of the State Government agencies including
the Collector of Mumbai / MCGM / Revenue Department etc. He
submitted that even though in the past these authorities / agencies
had glossed over the said Notification, the same cannot be cited as a
rule for continuing this wrong practice and this wrong practice /
illegality cannot be allowed to be perpetuated. He submitted that
this is a serious security issue and merely because in the past some
illegality has gone unnoticed, the same cannot be allowed to
continue in the future. He submitted that with respect to issuance
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of NOCs in the past for construction of buildings within the
restricted zone of 500 yards, the same was deliberated till the
highest level and the competent authority thereafter, having
considered all the aspects, had already initiated a court of inquiry
to investigate the circumstances under which those NOCs were
issued and also for finding out who were the delinquents
responsible for the lapse.
17.
Placing reliance on the provisions of the said Act as well
as the Notification dated 19th June, 1976, Mr Sharma submitted
that these provisions make it abundantly clear that any
construction work being carried out in the restricted zone of 500
yards from the said Wireless Station would be illegal and it was
incumbent on Respondent Nos.1 and 2 to ensure that the said
Notification was not flouted and/or violated. He submitted that in
the present case, admittedly the construction of the Petitioner was
within the restricted zone of 500 yards and hence no NOC could be
granted for any construction.
18. Mr Sharma lastly contended that it is factually
incorrect that the grounds on which the said Wireless Station is
located is also given on contract basis for conducting parties and
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marriages etc. He stated that the area of the Wireless Station is
bounded by a concrete boundary and no functions and/or marriages
are held in the said premises. For all the aforesaid reasons, he
submitted that there is no merit in this Writ Petition and the same
ought to be dismissed with costs.
19. We have heard the learned counsel at length and
perused the papers and proceedings in the Writ Petition as well as
the annexures thereto. Before we deal with the rival contentions, it
would be apposite to refer to certain provisions of the Works of
Defence Act, 1903 and the purpose for which it was enacted. As the
preamble of the Act would reveal, the said Act was brought into
force to provide for imposing certain restrictions upon the use and
enjoyment of land in the vicinity of works of defence so that such
land may be kept free from buildings and other obstructions and for
incidental matters thereto. This Act was brought into force on 20th
March, 1903 and there have been several amendments to the said
Act thereafter. As it stands, it extends to the whole of India. In the
definitions clause, the expression "land" has been defined under
section 2(a) to include benefits that arise out of land and things
attached to the earth or permanently fastened to anything attached
to the earth. The expression "maintain" has also been defined in
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section 2(h) which reads as under:-
"2. Definitions.--In this Act, unless there is something
repugnant in the subject or context,--
(h) "maintain", with its grammatical variations and cognate
expressions, does not, when used in relation to a house or
other construction, include the doing of any act necessary
for keeping such house or construction, until the making of
the award referred to in Section 12 or until the exercise,
prior to the making of the award, of the powers of
demolition conferred, in case of emergency, by Section 6,
sub-sections (1) and (3) in the state in which it was at the
time of the publication of the notice referred to in Section
3, sub-section (2):"
20. Section 3 of the said Act provides for a declaration and
notice that restrictions will be imposed. It stipulates that whenever
it appears to the Central Government that it is necessary to impose
restrictions upon the use and enjoyment of land in the vicinity of
any work of defence or of any site intended to be used or to be
acquired for any such work, in order that such land may be kept
free from buildings and other obstructions, a declaration shall be
made to that effect under the signature of a Secretary to such
Government or of some officer duly authorised to certify its orders.
Thereafter, section 7 and which is germane for our purpose, lays
down certain restrictions. Section 7 reads thus:-
"7. Restrictions.--From and after the publication of the notice
mentioned in Section 3, sub-section (2), such of the following
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restrictions as the Central Government may in its discretion
declare therein shall attach with reference to such land, namely:--
(a) Within an outer boundary which, except so far as is otherwise
provided in Section 39, sub-section (4), may extend to a distance of
two thousand yards from the crest of the outer parapet of the
work,--
(i) no variation shall be made in the ground-level, and no
building, wall, bank or other construction above the ground
shall be maintained, erected, added to or altered otherwise
than with the written approval of the General Officer
Commanding the District, and on such conditions as he may
prescribe;
(ii) no wood, earth, stone, brick, gravel, sand or other
material shall be stacked, stored or otherwise accumulated :
Provided that, with the written approval of the General
Officer Commanding the District and on such conditions as
he may prescribe, road-ballast, manure and agricultural
produce may be exempted from the prohibition:
Provided also that any person having control of the land as
owner, lessee or occupier shall be bound forthwith to
remove such road-ballast, manure or agricultural produce,
without compensation, on the requisition of the
Commanding Officer;
(iii) no surveying operation shall be conducted otherwise
than by or under the personal supervision of a public
servant duly authorised in this behalf, in the case of land
under the control of military authority, by the Commanding
Officer and, in other cases, by the Collector with the
concurrence of the Commanding Officer; and
(iv) where any building, wall, bank or other construction
above the ground has been permitted under clause (i) of
this sub-section to be maintained, erected, added to or
altered, repairs shall not, without the written approval of
the 4 [General Officer Commanding the District], be made
with materials different in kind from those employed in the
original building, wall, bank or other construction.
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(b) Within a second boundary which may extend to a distance of
one thousand yards from the crest of the outer parapet of the
work, the restrictions enumerated in clause (a) shall apply with the
following additional limitations, namely :--
(i) no building, wall, bank or other construction of
permanent materials above the ground shall be maintained
otherwise than with the written approval of the General
Officer Commanding the District arid on such conditions as
he may prescribe, and no such building, wall, bank or other
construction shall be erected:
Provided that, with the written approval of the 6General
Officer Commanding the District] and on such conditions as
he may prescribe, huts, fences or other constructions of
wood or other materials, easily destroyed or removed, may
be maintained, erected, added to or altered :
Provided, also, that any person having control of the land as
owner, lessee or occupier shall be bound forthwith to
destroy or remove such huts, fences or other constructions,
without compensation, upon an order in writing signed by
the General Officer Commanding the District; and
(ii) live hedges, rows or clumps of trees or orchards shall not
be maintained, planted, added to or altered otherwise than
with the written approval of the General Officer
Commanding the District and on such conditions as he may
prescribe.
(c) Within a third boundary which may extend to a distance of five
hundred yards from the crest of the outer parapet of the work, the
restrictions enumerated in clauses (a) and (b) shall apply with the
following additional limitation, namely :--
no building or other construction on the surface, and no
excavation, building or other construction below the
surface, shall be maintained or erected :
Provided that, with the written approval of the
Commanding Officer and on such conditions as he may
prescribe, a building or other construction on the surface
may be maintained and open railings and dry brush-wood
fences may be exempted from this prohibition."
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(emphasis supplied)
21. As can be seen from the said provisions, after the
publication of the notice as mentioned in section 3(2), such of the
following restrictions as the Central Government may in its
discretion declare therein shall attach with reference to such land
as more particularly described in section 7. To put it in a nutshell,
when the land is within a distance of 2000 yards from the crest of
the outer parapet wall of the Wireless Station, then the restrictions
set out in section 7(a) would apply. Similarly, when such land is at
a distance of 1,000 yards from the crest of the outer parapet wall of
the Wireless Station, in addition to the restrictions mentioned in
section 7(a), additional restrictions as set out in section 7(b) would
apply. Thirdly, when such land is at a distance of 500 yards from
the crest of the outer parapet wall of the Wireless Station, in
addition to the restrictions enumerated in sections 7(a) and 7(b),
an additional limitation would apply viz. that no building or other
construction on the surface or any excavation, building or other
construction below the surface shall be maintained or erected. The
proviso to section 7(c) stipulates that with the written approval of
the Commanding Officer and on such conditions as he may
prescribe, a building or other construction on the surface may be
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maintained and open railings and dry brush-wood fences may be
exempted from this prohibition.
22. In the facts of the present case, it is an admitted fact
that the said property on which construction is sought to be carried
out by the Petitioner, falls within a distance of 500 yards from the
Juhu Wireless Station as contemplated under section 7(c) of the
said Act. This being the factual position, once a Notification has
been issued under section 7(c), no building or other construction on
the surface and no excavation, building or other construction below
the surface shall be maintained or erected. In the facts of the
present case, the impugned Notification dated 19th June, 1976
clearly stipulates that in exercise of the powers conferred by
section 3 of the said Act, the Central Government declares that it is
necessary to impose restrictions specified in clause (c) of section 7
of the Act upon the use and enjoyment of the land, more
particularly described in the Schedule thereto, being the land in the
vicinity of the Juhu Wireless Station and in order to ensure that
such land may be kept free from buildings and other constructions.
In these facts, we are clearly of the opinion that Condition No.55 as
imposed by Respondent No.3 in the revised LOI dated 30th May,
2009 was perfectly justified and does not suffer from any illegality.
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23. Faced with this situation, Mr Balsara submitted that the
proviso to the said Notification stipulates that the said restrictions
shall not apply to such permanent constructions beyond the
permissible height of 15.24 mtrs. which have already been
completed at the commencement of the said Notification. He laid
great emphasis on the words "beyond the permissible height of
15.24 mtrs." to contend that the Notification itself contemplated
that upto a height of 15.24 mtrs. (which according to the Petitioner
is now increased to 19.20 mtrs.) was not barred under the said
Notification and hence there was no question of obtaining any NOC
from Respondent Nos.1 and/or 2. We are afraid we are unable to
accept this submission. Firstly, the proviso clearly applies to
construction which has already been completed at the
commencement of the said Notification. We do not read this proviso
to mean that the same would also apply to constructions that are
now going to commence after this Notification. Secondly, section
7(c) clearly stipulates that when any property is within a distance
of 500 yards from the Wireless Station, then no building or other
construction on the surface and no excavation above or below the
surface can be erected. This is a complete prohibition, and unlike
section 7(a) and 7(b), this restriction cannot be relaxed with the
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approval of the General Officer commanding the Division. If we were
to read the Notification as sought to be contended by Mr Balsara,
the same would clearly be in violation of the clear language of
section 7(c) of the said Act. We therefore have no hesitation in
rejecting this argument.
24. Mr Balsara then contended that in the past several
buildings have come up within 500 yards of the Wireless Station
and which are having a height of 19.20 mtrs. or more. In this
regard, he brought to our attention the list of buildings annexed at
Exh.EE (Page 220 of the paper-book). He therefore submitted that
at least upto a height of 19.20 mtrs., the Petitioner be allowed to put
up construction on the said property. This argument is stated only
to be rejected. Firstly there are no details given as to when these
buildings / bungalows (described in Exh.EE of the paper-book) were
constructed. Secondly, even assuming that they were constructed
after the said Notification, merely because some buildings were
allowed to be constructed in breach of the provisions of law, the
same cannot give any right to the Petitioner to contend that they
too can commit this illegality and perpetuate it further by putting
up construction in contravention of the said Notification read with
section 7(c) of the Act. We cannot under Article 226 of the
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Constitution of India issue any direction permitting the Petitioner
to commit any illegality and that may or may not have been done in
the past by some other parties. We therefore find that this
argument is wholly without merit.
25. On this issue, Mr Balsara lastly contended that in the
past, Respondent Nos.1 and/or 2 had issued several NOCs for
construction within 500 yards of the Wireless Station to other
parties. In this regard, he brought to our attention Exh. "C" (pages
53 to 66 of the paper book). We find this argument also to be
without any substance. Firstly, there is nothing on record to
indicate that the NOCs issued with reference to the properties listed
in Exhibit "C" are within 500 yards of the Juhu Wireless Station.
Secondly, even assuming that they, or some of them, do fall within
500 yards of the Wireless Station, merely because some NOCs have
been given in the past, and which to our mind, at least prima facie,
would be contrary to the statutory provisions, cannot give a right to
the Petitioner to insist upon a NOC for its construction. In fact, it is
specifically mentioned in the affidavit in reply filed on behalf of the
Respondent Nos.1 and 2, that to inquire how these NOCs were
issued, the Competent Authority has already initiated a court of
inquiry to investigate into the matter. We therefore find that this
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argument does not carry the case of the Petitioner any further.
26. Mr Balsara's contention that the impugned Notification
is bad-in-law as the same, by efflux of time, had become redundant
and otiose, is also without any substance. In this regard, as
correctly submitted by Mr Sharma, it is not for the Petitioner to
decide whether the Juhu Wireless Station is required by
Respondent Nos.1 and/or 2 for the purpose of providing
communication to defence forces. As correctly submitted by Mr
Sharma, the Petitioner does not have the expertise or knowledge of
the functioning of the Wireless Station and the effects thereon in
view of the height of the adjoining buildings. At paragraph 6 of the
affidavit in reply, it is categorically averred that the Wireless
Station at Juhu is of strategic importance and plays a vital role in
providing communication to defence forces. Looking to all these
facts, we unhesitatingly reject the argument of Mr Balsara that the
Notification dated 19th June, 1976 has been rendered redundant
and/or otiose by efflux of time and therefore ought to be struck
down by this Court. Apart from making this bald assertion, nothing
else has been brought on record by the Petitioner to substantiate
this contention.
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27. For all the reasons set out earlier in this judgement, we
find no merit in this Writ Petition. Rule is accordingly discharged
and the Writ Petition dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
(B.P. COLABAWALLA, J.) (S.C.DHARMADHIKARI J.)
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