Bombay High Court
M/S. Runwal Constructions ... vs Union Of India Through Ministry Of ... on 6 May, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2711 OF 2020
M/s. Runwal Constructions
A registered Partnership Firm,
duly registered under the provisions
of the relevant provisions of the Indian
Partnership Act, 1932, acting through
Its partner Sanjay Daga having its
registered office at 5th Floor,
Runwal & Omkar Esquare,
Opp. Sion Chunabhatti Signal,
Sion (East), Mumbai 400 022. ... Petitioner.
Versus
1. Union of India
Through its Ministry of Defence
Room No. 234 - South Block,
Ministry of Defence, New Delhi
Through, Office of Union of India
Aayakar Bhavan, Maharshi Karve Road,
Churchgate, Mumbai,
Maharashtra 400 020.
2. Group Captain
Airforce Station, Sandoz Baugh (Post)
Kolshet Road, Thane (West)-400607
Through, Office of Union of India
Aayakar Bhavan, Maharshi Karve Road,
Churchgate, Mumbai,
Maharashtra 400 020.
3. Station Commander
Airforce Station, Sandoz Baugh (Post)
Kolshet Road, Thane (West)-400607
Through, Office of Union of India
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Aayakar Bhavan, Maharshi Karve Road,
Churchgate, Mumbai,
Maharashtra 400 020.
4. Wing Commander
Airforce Station, Sandoz Baugh (Post)
Kolshet Road, Thane (West)-400607
Through, Office of Union of India
Aayakar Bhavan, Maharshi Karve Road,
Churchgate, Mumbai,
Maharashtra 400 020.
5. Thane Municipal Corporation
a statutory body, registered under
the provisions of Maharashtra
Municipal Corporation Act, 1949,
having its office at
New Administrative Building,
Mahapalika Bhavan, Almeda Road,
Chandan Wadi, Pachpakhadi,
Thane West, Thane,
Maharashtra 400 602.
6. State of Maharashtra
Through its Secretary,
Urban Development Department,
having his office at 1st Floor,
Mantralaya, Mumbai 400 032.
Through the Office of Government
Pleader, Appellate Side,
High Court, Bombay.
7. The Municipal Commissioner of
TMC, having his office at
New Administrative Building,
Mahapalika Bhavan, Almeda Road,
Chandan Wadi, Pachpakhadi,
Thane West, Thane,
Maharashtra 400 602.
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8. Executive Engineer,
TMC, Zilla Parishad Office,
Station Road, Talav Pali,
Opp. Thane West, Thane,
Maharashtra 400 601.
9. Ministry of Civil Aviation,
Corporate Headquarters,
Rajiv Gandhi Bhavan,
Safdarjung Airport,
Block - A, New Delhi - 110 003.
Also at:
Aayakar Bhavan, 2nd Floor,
Maharshi Karve Road,
New Marine Lines,
Mumbai - 400 020.
...
Mr. Pravin K. Samdhani, Senior Counsel with Mr. Saket Mone, Ms.
Jayshree Ramchandran and Mr. Abhishek Salian i/b VIDHI
Partners, for the Petitioner.
Mr. Y. R. Mishra a/w Mr. N. R. Bubna, for Respondent Nos. 1 to 4
and 9.
Mr. R. S. Apte, Senior Counsel a/w Mr. N. R. Bubna, for Respondent
Nos. 5, 7 and 8.
Mr. Rajan S. Pawar, AGP, for Respondent No. 6.
...
CORAM : R. D. DHANUKA &
V. G. BISHT, JJ.
Reserved on : 5th April, 2021.
Pronounced on : 6th May, 2021
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JUDGMENT (PER : V. G. BISHT, J.)
Rule. Respondents waive service. By consent of parties,
Petition is heard finally.
2 By this Petition under Article 226 of Constitution of India, the
petitioner is challenging the Communications dated 14 th March,
2017, June 2018, 6th July, 2018 and 5th October, 2018 issued by the
respondent no.2 refusing to grant of NOC to it for construction of
their building, letter dated 27th August, 2019 issued by the
respondent no.5-Thane Municipal Corporation (herein-after
referred to as "TMC") directing the petitioner to obtain NOC from
the Indian Air Force Station, Thane.
3 Brief facts are as under:-
The petitioner is a partnership concern, registered under the
provisions of the Indian Partnership Act, 1932. The petitioner is
engaged in the business of real estate development in the city of
Mumbai and Thane.
4 By and under an Agreement for Development dated 29th
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December, 2005 made between the Bombay Wire Ropes Limited,
Warden Synplast Private Limited and M/s Runwal Constructions
i.e. the petitioner in respect of the property at Kolshet Road, Thane
admeasuring 1,55,697.71 square meters and the same was
registered with the Sub-Registrar of Assurances at Thane on 28 th
June, 2006. Subsequently the Bombay Wire Ropes Limited
executed a Power of Attorney on 28 th June, 2006 in favour of the
petitioner. The petitioner has received development permissions
from the TMC from time to time.
5 According to the petitioner, since the proposed residential
building as per sanctioned plans is located at a distance of more
than 100 meters from the Indian Air Force Station at Thane and as
such in law there is no restriction to develop the lands from a
defence point of view. On 14th February, 2007 the Government of
India issued a notification (Exh. B) under Sections 3 and 7 of the
Works of Defence Act, 1903 (for short "Defence Act") imposing the
development restrictions in the areas to the extent of 100 meters
from the Air Force Station at Thane.
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6 On 13th January, 2010 a further notification (Exh. C) was
issued by the Union of India under the provisions of Sections 3 and
7 of the Defence Act continuing the restrictions on the use of lands
within 100 meters of the Indian Air Force Station at Thane. It is
the case of the petitioner that from reading of the notifications
dated 14th February, 2007 and 13th January, 2010, it is evident that
the only restrictions imposed are to a distance of 100 meters from
the Air Force Stations at Thane. In absence of any other notification
under the Defence Act no other restrictions can be imposed for land
use near the notified Air Force Station.
7 According to petitioner, on 18th May, 2011 a Circular (Exh. D)
was issued by Ministry of Defence to Chief of Army, Navy and Air
Force prescribing thereby a requirement of NOC for construction of
building in the vicinity of Defence Establishment. The said circular
mandates an NOC from the Defence Authority for construction of
multi storey (more than four floors) building within 500 meters of
any Defence Establishment. This circular unambiguously clarifies
that the directions in the circular is only applicable to areas which
are not regulated by the provisions and/or notifications under the
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Defene Act. The property in question is governed by the
notification dated 14th February, 2007 and 13th January, 2010
issued under Section 3 and 7 of the Defence Act. In such
circumstances, the circular dated 18th May, 2011 is not applicable to
the property in question with regards to the restrictions imposed on
construction for security reasons of Air Force Station Thane.
8 Further, on 1st September, 2011, respondent no.4 erroneously
relying upon the said circular dated 18 th May, 2011 informed the
respondent no.7 that in addition to the restriction as prescribed
vide notification dated 13th January, 2010 there is a requirement of
seeking special clearance for constructing multi storeyed buildings
(having more than four floors) within 500 meters of Defence
Establishment as specified in para (b) of the said circular dated 18 th
May, 2011. It is the case of the petitioner that though the condition
for NOC for height is illegal and arbitrary, the petitioner without
prejudice to its rights and conditions applied for NOC. On 7 th
August, 2013, the respondent no.2 was pleaded to grant NOC
(Exh.F) for construction of upto Ground + 7 floor. Whilst granting
the NOC it was observed that such NOC was granted in accordance
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with letter of Air Head Quarter dated 13th July, 2013.
9 The petitioner further contends that after August, 2013 it
decided to carry out some amendments in the proposed residential
building as the land of the petitioner was clearly developable under
the then prevailing Development Control Regulation of Thane. The
petitioner thus decided to add 3 floors to the existing proposed
building. Therefore, on 21st November, 2013 the petitioner had
without prejudice requested the TMC to obtain NOC from the Air
Force Authority on their behalf due to change in plans.
10 On 21st February, 2015 the respondent no.1 issued a circular
providing guidelines with respect to the restrictions on construction
activity in the vicinity of Defence Establishment. By the said
circular, respondent no.1 clearly stated that in areas where
construction activity was regulated by the Defence Act, the circular
dated 18th May, 2011 shall not be applicable.
11 In the meantime, on 17th November, 2015 (Exh. K), the TMC
approved the plans of the petitioner for ground + 10 floors and
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granted permission to the petitioner for construction on the said
property. For the purposes of the permission so granted, the TMC
also sought charges towards development charges and accordingly
the petitioner in good faith deposited such amount, believing that
construction can commence after such payments are made but the
TMC has not allowed the petitioner to commence construction till
date, even after accepting such moneys.
12 It is the case of the petitioner that the TMC, however,
imposed a condition on the petitioner to obtain NOC from the Air
Force Department, in case petitioner intends to construct over four
floors contrary to the prevailing law. According to the petitioner,
the petitioner is not required to obtain such NOC in view of
notifications dated 14th February, 2007 and 13th January, 2010
issued under Sections 3 and 7 of the Defence Act.
13 On 29th June, 2016 the respondent no.2 issued a
Communication (Exh. M)to the TMC clarifying that there is no
restriction or requirement of NOC from the Air Force Authority for
any construction to be undertaken beyond 100 meters from Air
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Force Station Thane. According to the petitioner though the
proposed development by the petitioner is beyond 100 meters, no
restriction was applicable, contrary to the correspondence dated
29th June, 2016, on 19th March, 2017 (Exh. N), respondent no.2
illegally laid additional restriction on the development of land
beyond notification dated 14th February, 2007 and 13th January,
2010. The purported reason for laying down such illegal
restriction was that the Air Force Station, Thane witnesses regular
operations and the helipad at the Air Force Station, Thane which is
earmarked for Prime Minister / other VVIP movements in Thane
AOR.
14 The respondent no.2 further clarified that as per policy, a
clear straight approach and take off path of upto 750 meters is
required to be maintained for safe conduct of operations by
helicopters. To ensure this operation, no constructions should be
permitted in the straight line of approach and take off funnel. The
respondent no.2 further mentioned that the respondent no.1 has
approached higher authorities for clarification regarding restriction
on new construction based on necessary horizontal and vertical
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clearance and till the time clarifications are not provided, the TMC
was directed not to grant further NOC. The TMC was accordingly
informed (Exh. U) by respondent no.2 vide its letter dated June,
2018.
15 On 6th July, 2018 (Exh.W) the respondent no. 2 issued a
clarification in response to the letter dated 30th June, 2018 of the
TMC (Exh. V) informing that though Air Force Station, Thane falls
within 100 meters restricted zone, as per policy (CASO Volume-III)
a clear straight approach and take off path upto 750 meters is
required to be maintained, however, the said policy is contrary to
the Defence Act and the notifications issued therein and thus,
ought to be set aside to the extent that it completely contradicts the
notifications.
16 The petitioner then further contends that a joint meeting was
held in Mantralaya on 5th June, 2019 and it was discussed and
finalized in the said meeting that the petitioner was to submit a
copy of the final set of maps for issuance of amended permission.
The petitioner accordingly submitted the final set of maps via letter
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dated 7th August, 2019.
17 Another meeting came to be held on 5th July, 2019 between
the respondent no.2, respondent no.3, respondent no.6, respondent
no.7, respondent no.8, other Officers and the petitioner. In the said
meeting, the Urban Development Department, Government of
Maharashtra held that till date, no notification had been issued by
the Defence authorities imposing restrictions on construction
activity in the helipad funnel zone. Furthermore, it was held that
until the time the Defence Department issues notification with
regards restriction on construction activity in the helipad funnel
zone area, the TMC may grant development permission after taking
necessary undertaking from the developer. However, the
commencement certificate for such construction can be issued only
after an NOC is obtained from the Defence Department. This
decision, according to petitioner, is contrary to the scheme of
Defence Act, more particularly, the notifications issued under
Section 3 read with Section 7 of the Defence Act dated 14 th
February, 2007 and 13th January, 2010.
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18 According to the petitioner, it is worthwhile to mention that
part of the land of the petitioner is affected by the restrictions
imposed by the notifications dated 14th February, 2007 and 13th
January, 2010 under the scheme of the Defence Act. The petitioner
is entitled to receive compensation for the part of the land which is
directly affected by the aforesaid two notifications.
19 Finally, on 27th August, 2019 (Exh.CC), the TMC was pleased
to issue sanction of development permission for amended plans. To
the utmost shock of the petitioner, condition No. 10 of the aforesaid
sanction required the petitioner to obtain NOC from Defence
Authority before carrying out construction work on the said
property, which otherwise in law the petitioner is not required to
take as the land of the petitioner does not fall within 100 meters
which is prescribed limits as per notifications dated 14 th February,
2007 and 13th January, 2010 issued by the Government of India
under Defence Act.
20 The petitioner lastly contends that in the circumstances, the
petitioner is unable to develop the said land. The illegal and
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arbitrary condition imposed by the TMC vide letter dated 27th
August, 2019 appear to flow from the letters/circulars/directions
dated 14th March, 2017, June 2018, 6th July, 2018 and 5th October,
2018 issued by the respondent no.2 to the TMC, which are
completely contrary to the notifications dated 14 th February, 2007
and 13th January, 2010. Therefore, the present Petition.
21 The TMC vide its affidavit-in-reply submits that the Ministry
of Defence in exercise of the powers conferred under Sections 3
and 7 of the Defence Act has imposed restrictions upon
construction of building and other structures within the limit of
100 meters from the crest of the outer parapet/boundary wall of
Air Force Stations and installations vide Government of India
Gazette Notification S.R.O.4 dated 13th January, 2010. Similarly,
live hedges, tress/rows or clumps of trees or orchards shall not be
maintained, planted added to or altered within the 100 meters
restricted zone.
22 The plot under question falls partly within 100 meters
boundary from the outer parapet of Air Force Station, Thane.
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Approximately 6923.40 sq. meters (16%) of the plot area is within
100 meters No Development Zone. Balance 35630 Sq. meters
(84%) of plot is outside the No Development Zone and on the said
portion of plot, there are no restrictions on Development other than
those development provided by the sanctioned development plan
and DCR and Planning Authority i.e. TMC has sanctioned building
permission on the unrestricted portion of land for allowed user as
per the procedure laid down by MR & TP Act, 1966 and sanctioned
DC Rules.
23 It is next contended that, however, vide letter Ref. No. 26W/S
515/1/WKs dated 14th March, 2017 (Annexture 'B'), the Station
Commander, Air Force Station, Thane informed that Air Force
Station Thane falls within Mumbai Air Space and the helipad at
Air Force Station, Thane witnesses regular operations. Moreover,
this helipad is earmarked for Prime Minister and other VVIP and
VIP movements in Thane AOR. As per policy, a clear straight
approach and take off path upto 750 meters is required for safe
conduct of operations by helicopters. Therefore, to ensure safe
helicopter operations of this base, no construction should be
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permitted in the approach and take off funnel.
24 According to TMC, the Chief Secretary convened a joint
meeting on 5th July, 2019 with Air Force Authorities to resolve the
issue of restriction of development and as decided in the meeting,
the petitioner filed an affidavit with the office of TMC stating that it
will abide to submit NOC from Defence Department before seeking
commencement Certificate for his construction project.
Considering the affidavit of the petitioner, the TMC issued the
permission for development vide permission No.
TMC/TDD/3166/19 dated 27/08/2019 with a condition to obtain
NOC from the Defence Department before Commencement
Certificate vide condition No. 10.
25 The respondent-TMC lastly contends that the petitioner has
filed present petition inter-alia challenging the imposition of
condition No. 10 requiring NOC from Defence Department for
constructions buildings which are within funnel zone. Section 47
of MR & TP Act provides for Appeal if an applicant is aggrieved by
condition subject to which development permission is granted.
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Since the petitioner has not taken recourse to file any Appeal, the
same has become time barred. Moreover, there is no case on merits
and therefore, present Petition is liable to be dismissed.
26 It appears from the record that the petitioner then filed the
limited affidavit-in-rejoinder to the affidavit-in-reply filed by the
TMC contending that in no manner giving an undertaking to the
TMC at the behest of the petitioner amounts to the petitioner
giving up its right to agitate that such NOC is not required to be
obtained as per extant law.
27 The respondent nos. 1 to 4 vide their affidavit-in-reply
contend that the present Petition is not maintainable as the
petitioner has efficacious alternate remedy to challenge the
condition imposed while granting the development permission by
the TMC. According to them, the plot in question is within 500
meters from the Air Force Station, Thane where Indian Air Force is
operating a helipad which is fit for operation by all classes of
helicopters. This helipad is extensively used for military operations,
training purposes and is also earmarked for VIP/VVIP movements.
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28 It is contended that this helipad is also used for rescue
purposes in the event of natural calamities. Thus, any construction
within 750 meters of approach/take off path diverging by 15
degrees from both sides from the edges of the helipad will
adversely affect the operation of helipad of Air Force Station,
Thane. To ensure safe helicopter operations, it is mandatory that no
construction should be permitted in the approach and take off
funnel up to 750 meters. Accordingly, the said requirement has
been intimated to the TMC as well as the petitioner. It is further
contended that in view of the several helicopters meeting with
accidents due to obstructions while landing, the Government of
Maharashtra issued guidelines emphasizing a clear radius around a
helipad vide G.R. dated 25th January, 2018 (Exh. A).
29 It is further contended that the notifications/letters/circulars
(of the Defence Minstry and Air Force Authority) which are
questioned by the petitioner, cannot be ignored by the Planning
Authority and even if no declaration as alleged under Section 3 of
the Defence Act was issued, the same would not disentitle the Air
Force Authorities from insisting that their NOC be obtained for any
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construction activity within their vicinity. Since there is no
substance in the Petition, the same deserves to be dismissed with
costs in the interest of justice.
30 It then appears from the record that respondent nos. 1 to 4
again filed affidavit-in-reply on 9 th October, 2020. According to
them, Thane region has several strategically important and
sensitive establishments including Bhabha Atomic Research Centre,
Tarapur Atomic Power Station, Bombay High Oil Fields, Oil Rigs,
Power Grids etc. which are very important from the point of view of
national security. To deal with any national security contingency,
Air Force Station, Thane is a critical military establishment.
31 The operation of heavy helicopters require flight path to be
clear of any obstruction upto 750 meters and a mandated glide
slope of 3 degree on approach would provide height of 39.3 meters
above the ground at a distance of 750 meters from helipad landing
point. The safety requirement warrants that there should be a
safety margin of 50 meters between any obstruction and the
mandated glide slope. Therefore, to ensure safe flying of
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helicopters no construction can be permitted in the flight path of
heliport operational at Air Force Station Thane. The substantial
part of petitioner's plot comes within flight take off and landing
path of heliport at Air Force Station Thane.
32 The respondents then contend that the heliport at Air Force
Station Thane is registered as heliport with Indian Air Force but has
not yet been registered as heliport with Ministry of Civil Aviation.
Though a distance of 100 meters is required to be maintained from
any Defence Establishment but the same is not sufficient for a
heliport. GR dated 25th January, 2018 shows that civilian
helicopters with much less load also require larger obstruction free
area around them.
33 According to the respondents, to ensure safety of aircrafts,
the Government of India has prohibited construction of building or
structures in the vicinity of aerodromes in exercise of power under
Section 9A of Aircraft Act, 1934 (for short "Aircraft Act"). The
proposal to notify heliport at Air Force Station Thane is pending
with Ministry of Civil Aviation and the said heliport is likely to be
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notified soon. On issuance of notifications, restrictions including
those stated herein-above will apply and it will not be possible to
carry out any construction as is sought by the petitioner. If any
construction is permitted, as is prayed by the petitioner, the
heliport operational at Air Force Station Thane shall be rendered
dysfunctional and security of region shall be adversely affected.
34 The respondent nos. 1 to 4 again filed third affidavit-in-reply
dated 1st December, 2020 in furtherance to earlier affidavits and
contended that restriction of 750 meter flight path clear of all
obstructions imposed by them is on account of Civil Aviation
Requirements issued by Department of Civil Aviation under the
provisions of Aircraft Act and Rules framed thereunder. The land
affected by this restriction will also include the land affected under
notifications issued under Defence Act. No other restriction
affecting land of petitioner is imposed by them.
35 They have further contended that pursuant to order passed
by this Court, the Officer of Air Force Station Thane have measured
affected land on Google Earth application and found that
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approximately 111086.11 sq. meters area out of total plot of land
owned by petitioner is affected because of restriction of 750 meters
flight path of heliport operational at Air Force Station Thane. This
calculation will be required to be verified by the Officer of Revenue
and Survey Department of Government of Maharashtra in
conjunction with the TMC after following applicable statutory
procedure. After reiterating the contentions of the earlier
affidavits, the respondents contended that there is no substance in
the petition and the same deserves to be dismissed with costs in the
interest of justice.
36 The petitioner by way of affidavit-in-rejoinder contends that
the Aircraft Act does not contemplate a blanket restriction of 750
meters . Unless a notification is issued under Section 9(A) of the
Aircraft Act by the Competent Authority after following all the
mandatory procedure as stipulated under the said Act, no
restriction of 750 meters or any other area can be imposed. It is
also admitted position that the Air Force Station, Thane as on date
is not registered or declared as heliport under the Aircraft Act.
Further, no notification under the Aircraft Act has been issued with
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regard to Air Force Station Thane. Therefore, no restriction can be
imposed by respondent nos. 1 to 4 with respect to Air Force Station
Thane. They are insisting for keeping clear area of 750 meters
apparently without any authority of law as there exists no
Notification under the provisions of Section 9(A) of the Aircraft
Act.
37 Furthermore, it is worthwhile to mention that between the
helipad and the property of the petitioner, there exists a thickly
populated slum on the Defence land for which no action of
whatsoever nature has been initiated by the respondent nos. 1 to 4
which clearly shows the arbitrary and unreasonableness on their
part to single out the petitioner and also shows that the alleged
threat of security risk is nothing but clearly a figment of
imagination of the respondent authorities. Lastly, according to
petitioner, there exists a road namely Akbar Camp Road between
the helipad and the property of the petitioner. The width of the
road is approximately 40 meters and is used by heavy truck and
trolleys on day today basis. Pointing out from the affidavit dated
October, 2020 of the respondents at para 3 wherein it is stated a
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mandated glide slope of 3 degrees at a distance of 750 meters
maximum height permissible is 39.3 meters, the petitioner
contends that the road which is adjacent to the Defence
Establishment and the vehicles plying thereon are falling within the
first degree impact and therefore contention so raised is clearly
fallacious.
38 After the submissions of both the parties were heard by this
Court, the learned counsel for respondent nos. 1 to 4 and for
respondent no. 9 filed affidavit-in-reply of respondent no.9 -
Ministry of Civil Aviation alongwith annextures. Since other side
has no objection, the same were taken on record.
39 According to respondent no.9, Section 9(A) of the Aircraft Act
empowers Central Government to prohibit or regulate construction
of buildings, planting of trees etc. for the safety of aircraft
operations by issuing directions through publication in the Official
Gazette of India. Accordingly, Ministry of Civil Aviation (Height
Restrictions for Safeguarding of Aircraft Operations) Rules, 2015
published vide G.S.R. 751(E) dated 30 th September, 2015 as
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amended vide Notifications No. 610(E) dated 14th June, 2016 and
No. 770(E) dated 18th December, 2020 ( hereinafter referred as
'Height Rules') have been issued to regulate the height of the
buildings or structures around aerodromes.
40 The respondent no. 9 then contends that the request of IAF/
MoD for inclusion of Airfields/Helifields in Schedule V of GSR
751(E) was examined and AAI pointed out that the Rules laid
down in GSR 751(E) have been drafted for fixed wing Aircraft
based on the provisions of OLS contained in ICAO Annex 14,
Volume-I. However, OLS for Heliports are altogether different and
laid down in ICAO Annex 14, Volume-II. In view of this, the
helipads were not included in Schedule V of GSR 751(E).
41 It is further contended that the security requirement of
different IAF helipads may be different. Hence, as per clause 5(2)
of Height Rules, NOC in respect of Defence aerodromes shall be
issued by the Authorized Officer in accordance with the said rules,
subject to such other conditions as the said authorized officer may
deem fit. If required, IAF/MoD may issue a separate notification
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for their helipads. Amendment to Height Rules were published
through 770(E) dated 18th December, 2020 and is available in
public domain. MoCA vide letter No. AV-24011/28/2017 dated
08th February, 2021 has also informed MoD that the helipads
proposed by IAF could not be included in Schedule-V of GSR
751(E).
42 Mr. Samdhani, learned senior counsel for the petitioner,
submits that the TMC without application of mind is insisting upon
an NOC from Defence Authority as a prerequisite before carrying
out any construction in the said property of the petitioner albeit in
law as stipulated in notifications dated 14th February, 2007 and 13th
January, 2010 issued under Defence Act. The petitioner is not
required to obtain such NOC. This action on the part of the TMC is
arbitrary, illegal and without authority of law. According to
learned counsel area of the petitioner falls partly within 100 meters
boundary from the outer parapet of Air Force Station, Thane which
is notified by the Central Government under Annexture A of the
Circular dated 14th February, 2007 and 13th January, 2010. The
aforesaid notifications categorically state that all areas falling
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around Air Force Station Thane notified in Annexture A need to
maintain restriction only 100 meters from the boundary of the
Defence Establishment. Therefore, as the proposed residential
building of the petitioner is beyond 100 meters from Defence
Establishment, TMC's requirement of an Air Force NOC for the
petitioner is contrary to the Notification dated 14th February, 2007
and 13th January, 2010.
43 The learned senior counsel then would submit that the
proposed construction of the petitioner is about approximately
about 500 meters away from the helipad and governed by the
MRTP Act and Development Control Regulations (for short, 'DCR').
In the course of correspondence exchanged between the petitioner,
the respondent Defence Authorities, took various inconsistent
stand. On 01/09/2011 the Defence Authorities issued a
communication to the TMC stating that as per the Defence circular
dated 18th May, 2011, NOC will be required for carrying out
construction within 500 meters, in addition to the 100 meters
restrictions imposed by the notifications, whereas on 29/06/2016,
the respondent Defence Authorities stated that there is no need of
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NOC to be obtained for carrying out construction activities beyond
100 meters from the Air Force Station, Thane.
44 On 14/03/2017 the respondent Authorities imposed
restriction upto 750 meters in the flight path at Air Force Station,
Thane, however, the letter does not mention under which Act,
Rules or Regulations the restriction of 750 meters in the flight path
is imposed. In the month of June 2018, the Defence Authorities
referring to a letter of the TMC, informed that the matter regarding
imposing of restriction of 750 meters is pending with the Higher
Authority and appropriate decision will be taken with regard to the
same whereas on 06/07/2018 the respondent Defence Authority
reiterated restriction of 750 meters by referring to the CASO policy
and lastly, on 14/09/2020, 09/10/2020. On 01/12/2020 the
respondent Defence Authorities filed affidavits in the present
matter wherein they have sought to initially rely on the policy of
the State of Maharashtra dated 20th January, 2018 and
subsequently have solely relied upon the provisions of the Aircraft
Act i.e. Section 9(A) purportedly justifying the imposition of
restriction.
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45 The learned senior counsel then vehemently submitted that
none of the aforesaid letters and the stand taken by the respondent
Defence Authorities refer to any primary legislation and/or
delegated piece of legislation disclosing source of power or
authority to impose such restriction. Needless to say, the entire act
of imposing restriction by the Defence Authorities beyond 100
meters is clearly without any authority of law. Interestingly,
according to the learned senior counsel, in the course of filing of
the affidavits (all the three affidavits) the Defence Authorities have
given up stand taken earlier and have placed sole reliance on 750
meters restrictions under the Aircraft Act. They have not placed
reliance on any of the circulars and admittedly there is no
notification issued under Section 9(A) of the Aircraft Act.
46 The learned senior counsel would submit that the planning
authority cannot reject and/or impose condition on development
permission on the basis of proposed revision in policy and to
buttress his submission, the learned senior counsel placed reliance
in S.N. Rao and Ors. Vs. State of Maharashtra 1 and more
1 (1988) 1 SCC 586
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particularly para 8 of the judgment. Since it is the case of the
respondent-Defence Authorities that restriction of 750 meters is
being imposed on account of Civil Aviation requirement but then
admittedly the Air Force Station Thane, as on date, is not notified
as a Heliport by the Civil Aviation Ministry and no notification
under Section 9(A) of the Aircraft Act has been issued. Therefore,
no restrictions can be imposed on the said property relying on the
Aircraft Act, 1934.
47 The learned senior counsel then invited our attention to the
provisions contained in Part-II, III IV and V of the Defence Act and
would submit that reasonable restrictions can be imposed on a
citizens rights guaranteed under Article 19(1)(g) and 300-A only
by enacted law. Defence Act is a central legislation enacted for the
purpose of imposing restriction upon the land in the vicinity of
Defence Establishment and for determining compensation in cases
where such restrictions are imposed. Thus, Defence Act occupies
the field and is a Code in itself which deals with restriction,
computation, reference, compensation and ultimately the payment
of the compensation.
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48 It is submitted by the learned senior counsel that only way to
impose restrictions on enjoyment of the property in the vicinity of
Defence Establishment is by invoking powers under the Defence
Act. Further, in the present case the Defence Authorities have
imposed restrictions of 100 meters by issuing notifications dated
14th February, 2007 and 13th January, 2010. Thus, imposition of
750 meters by writing letters in the form of executive instructions is
ultra-vires the Defence Act and without any notification under the
Defence Act. If the law requires a thing to be done in a particular
manner, it must be done in that manner or not done at all. To
buttress his point of view, the learned senior counsel placed
reliance in Babu Varghese and Ors. Vs. Bar Council of Kerela and
Ors.2 and more particularly paragraph 31 and 32 of the judgment.
49 Elaborating further, the learned senior counsel would submit
that the impugned communications and insistence of the Defence
Authorities requiring their NOC for development by the petitioner
and imposition of 750 meters of flight path from the helipad,
affecting and impacting the petitioner's entire property is plainly
2 (1999) 3 SCC 422
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without the authority of law and violative of Article 19(1)(g) and
300-A of the Constitution of India. The impugned communications
are in the nature of executive instructions and Article 19(1)(g) and
19(6) do not permit executive instructions to take place of law.
The requirement is of an enacted law occupying the field. To
substantiate this, the learned senior counsel placed his reliance in
Bishambhar Dayal Chandra Mohan Vs State of Uttar Pradesh and
Ors.3 and more particularly paragraph 20, 22, 26, 27 and 41,
Hindustan Time and Ors. Vs. State of UP and Anr. 4 and more
particularly paragraph 21 to 24, State of Bihar and Ors. Vs.
Project Uchcha Vidya5 and more particularly paragraph 67 to 71
and Paul Monoj Pandian Vs. P. Veldurai 6 and more particularly
paragraph 46, 47 and 48.
50 The learned senior counsel then would submit that an
immovable property has a bundle of rights within it. Right to
develop, right to construct and right to exploit the full potential by
development and construction are a part of the bundle of rights in
3 (1982) 1 SCC 39 para 20,22,26,27 and 41
4 (2003) 1 SCC 591
5 Appeal(Civil) 6626-6675 of 2001 dt. 03/01/2006
6 (2011)5 SCC 214
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a property and vested in the owner. Any deprivation or
interference with or restriction or imposition of any fetter on any of
the rights mentioned above, in the absence of law (enacted
legislation) would be violative of Article 300-A of the Constitution
of India. The impugned communications are executive instructions
and not enacted law.
51 It is submitted that by the impugned communications the
petitioner's rights to property are interfered with, impacted and
sought to be taken away. The impugned communications, in these
circumstances, are plainly and clearly violative of Article 300-A of
the Constitution of India and are thus liable to set aside and or
quashed. To further his submission, the learned senior counsel has
placed reliance on Hari Krishna Mandir Trust Vs. State of
Maharashtra7 (para 96), B.K. Ravichandra and Ors. Vs. Union of
India8 (paras 21-28), State of West Bengal and Ors. Vs. Sunit
Kumar Rana9 (para 25) and Kailash Prasad Yadav & Anr. Vs. State
of Jharkhand and Anr.10 (paras 7-10).
7 2020 SCC Online 631
8 Civil Appeal No. 1460 of 2010 order dated 24/11/2020
9 (2004) 4 SCC 129
10 (2007) 3 SCC 769
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52 The learned senior counsel then lastly would submit that the
impugned communications be set aside directing the TMC not to
impose any restriction beyond 100 meters covered by the Defence
Act or under the MRTP and DCR and further the Defence
Authorities be directed to take steps towards ascertaining the
compensation in respect of the lands affected under the Defence
Act by virtue of notifications dated 14th February, 2007 and 13th
January, 2010.
53 Mr. Mishra, learned counsel for the respondent nos. 1 to 4
and 9, at the very threshold submits that the petitioner has
efficacious alternate remedy under Section 47 of the Maharashtra
Regional Town Planning Act, 1966 (for short, 'MRTP Act') to
challenge conditions imposed while granting development
permission.
54 The learned counsel then submits that IAF is using concerned
helipad since last 50 years for military operations, training
purposes, VIP/VVIP movements and for rescue purposes in the
event of natural calamities. In order to ensure safe helicopter
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operations, it is mandatory that no construction should be
permitted in the approach and take off funnel upto 750 meters and
this restriction is imposed after expert evaluation since the
concerned plot is within 500 meters from the Air Force Station,
Thane where Indian Air Force is operating helipad. Any
construction within 750 meters of approach/take off path diverging
by 15 degrees from both sides from the edges of the helipad will
adversely affect the operation of Air Force Station Thane. The
respondents have withheld NOC for only that building which is
directly within flight path and is likely to create security hazard.
55 The learned counsel then would submit that the TMC being
the Planning Authority has rightly asked the petitioner to obtain
NOC from the Defence Establishment. The inherent duty of the
Planning Authority is to apply its mind before giving development
permission and to keep in mind the pros and cons of such
permission. Whilst imposing any condition, it cannot ignore
aspects of such security etc. and may refuse to grant permission for
use of land if the proposed development is not in "public interest".
The learned counsel then pointed out Section 46 of the MRTP Act
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and would submit that Section 46 of the MRTP Act read with DCR
1994 and New Unified Development Control Regulation, it would
be clear that not only the Planning Authority has the power but
also a duty to consider all aspects and especially the aspect of
safety and security before granting any development permission.
56 In support of his submission, the learned counsel has placed
reliance in Sunbeam Enterprises Vs. Municipal Corporation of
Greater Mumbai and others,11 wherein it is held that MRTP Act
1966 and DCR Rules authorizes the Planning Authority to ask the
builders and developers to get NOC from the Defence Authority, if
the construction is to be carried out in the vicinity of Defence area
and/or Defence installation. It is mandatory on the part of the
Planning Authority to insist on the NOC of the Defence
Establishment while considering the proposal of building
permission. In this regard, the learned counsel further placed
reliance in TCI Industries Ltd Vs. Municipal Corporation of Greater
Mumbai12 and referred paras 15 to 19 to the effect that a restricted
meaning cannot be given to Section 46 of the MRTP Act so as to
11 2019 SCC Online Bom 1059
12 2011 SCC Online Bom 1671
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divest the Planning Authority of its power to consider any other
aspect such as security etc. and has to restrict itself to the
provisions of the draft or final regional or development plan
sanctioned under the Act. 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 all the relevant aspects.
57 The learned counsel further placed reliance in SSV
Developers Vs Union of India13 wherein it is held that the decision
to grant or withhold NOC taken by experts, who have resolved and
decided that for reasons of security and protection of defence and
naval establishment NOC should not be granted. It is not for the
Court to substitute its opinion with their views.
58 The learned counsel then would submit that in the present
case distance is fixed by experts at 750 meters. The steps are being
taken by the concerned Air Force Authorities to issue notification to
that effect. Since the Defence Authorities have acted lawfully in
13 2013 SCC Online Bom 1602
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denying the NOC, it is submitted that the petitioner has no case on
merits and therefore, the petition is liable to be dismissed with
costs.
59 In his rejoinder argument, Mr. Samdhani, the learned senior
counsel for the petitioner, reiterated his earlier submissions and
pointedly assailed the stand taken by the respondents of their
experts having fixed distance of 750 meters without any
justification. According to learned senior counsel, none of the
Senior Authorities relevant for the purposes has filed his/her
affidavit on record justifying the basis and source for imposing
distance of 750 meters restriction on any construction within 750
meters from the edges of the helipad. According to learned senior
counsel, admittedly there is no notification till date issued under
Section 9 (A) of the Aircraft Act and hence under such
circumstances it would be meaningless to say that the steps are
being taken for issuance of notification to that effect. As and when
any such notification is published, the same will be dealt with
appropriately by the petitioner.
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60 As far as Section 46 of the MRTP Act is concerned, the
learned senior counsel would submit that the TMC being Planning
Authority is bound by the MRTP Act as well as DCR. In the instant
case, the Government of Maharashtra legislated unified regulations
dated 2nd December, 2020 which inter-alia provided in Regulation
No. 10.2.5(iii) and 10.2.5(iv), a ban on construction upto 750
meters in the approach and take off funnel zone Air Force Station
Thane. However, by a corrigendum dated 9 th December, 2020, the
aforesaid two provisions have been deleted. This being so, with
regards the said land, there is no restriction of whatsoever nature
as per the MRTP Act or DCR. Thus, the TMC cannot impose the
condition on the petitioner to obtain NOC from the Defence
Establishment prior to issuance of commencement certificate.
61 Mr. Apte, learned senior counsel for respondent nos. 5, 7 and
8, has advanced the submissions in consonance with the affidavit-
in-reply filed on behalf of the said respondents.
REASONS AND CONCLUSION
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62 The short question that falls for consideration is whether the
respondent-TMC though granted sanction of development of
subject plot is justified in insisting for NOC from the Defence
Department prior to issuance of CC (Condition No.10) vide
Amended Permission Certificate VIP No. S05/0096/15-TMC/ TDD/
3166/19 dated 27th August, 2019?
63 Before we analyze, appreciate and assess the contentions of
rival parties, certain admitted facts need to be highlighted. It is
apparent from the contents of para-5 of the affidavit-in-reply of the
TMC that subject plot partly falls within 100 meters boundary from
the outer parapet of Air Force Station, Thane. Approximately
6923.40 sq. meters (16%) of the said plot is within "No
Development Zone". Balance 35630 Sq. meters (84%) of plot is
outside the "No Development Zone" and on the said portion of plot,
there are no restrictions on Development other than those
provided by the sanctioned development plan and DCR. It is also
an admitted fact that the TMC has sanctioned amended building
permission consisting of ground and 23/24 upper floors on 27 th
August, 2019 with a condition, which is impugned, to obtain NOC
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of the Defence Authorities. As far as certain portion of subject plot
i.e. 6923.40 sq. meters (16%) of total plot falling within 100
meters from the outer parapet of Air Force Station Thane is
concerned, we would be dealing with that in the later part of our
discussion.
64 Similarly, there is no quarrel from the side of respondent nos.
1 to 4 and 9 about a notification dated 14 th February, 2007 issued
under Sections 3 and 7 of the Defence Act whereby the land
surrounding the Thane helipad upto the distance of 100 meters
from the outer parapet are put under "No Development Zone".
Again this position was reiterated and maintained by another
notification dated 13th January, 2010.
65 According to the petitioner, the proposed construction is
about approximately 500 meters away from the helipad and is
governed by the provisions of MRTP Act and DCR. The learned
senior counsel for the petitioner during the course of argument
invited our attention to various correspondences exchanged
between the petitioner and the respondent-Defence Authorities and
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tried to impress upon us a hostile and inconsistent stand adopted
against petitioner by the Defence Authorities vis-a-vis their own
notifications. We propose to go through those communications.
66 First communication in the line of correspondence is a letter
dated 1st September, 2011 written by Wing Commander, Chief
Administrative Officer of Air Force Station Thane stating that as per
the Defence circular dated 18th May, 2011 NOC will be required for
carrying out construction within 500 meters, in addition to the 100
meters restrictions imposed by the notifications dated 14th February,
2007 and 13th January, 2010.
67 The said circular (Exh.D) dated 18th May, 2011 is on record.
We have carefully perused the said letter written by Director ( L &
C), Government of India, Ministry of Defence to Chief of Army
Staff, Chief of Air Staff and Chief of Naval Staff, New Delhi. This
letter reads as under:-
No. 11026/2/2011/D(Lands)
Government of India,
Ministry of Defence,
New Delhi, the 18th May, 2011.
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To,
Chief of Army Staff
Chief of Air Staff
Chief of Naval Staff
New Delhi.
Subject : Guidelines for issue of "No Objection Certificate
Certificate (NOC)" for building constructions.
Of late, issue of NOC for construction on lands adjacent to
Defence Establishments has generated avoidable controversies
particularly in two recent cases, viz., Sukna and Adarsh.
Various issues involved in these two cases were reviewad and
the matter has been considered in detail in the Govt. in
consultation with the Services. It is felt that Works of Defence
Act, 1903 which imposes restrictions upon use and enjoyment
of land in vicinity of Defence Establishments needs to be
comprehensively amended so as to take care of security
concerns of defence forces. While the process of amendment
has been put in motion and may take some time. It was felt
necessary to issue instructions in the interim to regulate grant
of NOC. The objective of these instructions is to strike a
balance between the security concerns of the forces and the
right of public to undertake the construction activities on their
land. Following guidelines are therefore laid down.
(a) In places where local municipal laws require
consultation with the Station Commander before a
building plan is approved, the Station Commander
may convey its views after seeking approval from
next higher authority not below the rank of
Brigadier or equivalent within four months of
receipt of such requests or within the specified
period, if any, required by law. Objection/views/
NOC will be conveyed only to State Government
agencies or to Municipal authorities, and under no
circumstances shall be conveyed to builders/
private parties.
(b) Where the local municipal laws do not so require,
yet the Station Commander feels that any
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construction coming up within 100 meter (for
multistory building of more than four storeys the
distance shall be 500 meters) radius of defence
establishment can be a security hazard, it
should refer the matter immediately to its next
higher authority in the chain of its command. In
case the next higher authority is also so
convinced, then the Station Commander may
convey its objection/views to the local
municipality or State Government agencies. In
case the municipal authority/State Government
do not take cognizance of the said objection, then
the matter may be taken up with higher
authorities, if need be through AHQ/MoD.
(c) Objections/views/NOC shall not be given by
any authority other than Station Commander to
the local municipality or State Government
agencies and shall not be given directly to
private parties/builders under any
circumstances.
(d) NOC once issued will not be withdrawn
without the approval of the Service Hqrs.
2. These instructions will not apply where constructions are
regulated by the provisions of the existing acts/notification viz.
Cantonments Act, 2006, Air Craft Act, MoCA, 1934, Gazettee
Notification SO 84(E) dated 14.01.2011 ( as revised from time to
time), Works of Defence Act, 1903, etc. In such cases provisions of
the concerned Act/Notification will continue to prevail.
Sd/-
(Dr. A. K. Singh)
Director ( L & C )
Copy to :
DGDE; DRDO; Coast Guard HQ;
DGDA; DGQA; OFB [ through D(Fy-II)]"
68 The learned senior counsel for the petitioner makes an
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eminent sense when he argues that this communication dated 18 th
May, 2011 has no application in respect of land covered by the
notification issued under Sections 3 and 7 of the Defence Act. We
are in total agreement with the learned senior counsel. If this
communication is read carefully then it provides various guidelines
to be followed while granting "No Objection Certificate"(NOC) for
building constructions, coming up within 100 meters (for
multistorey building of more than four storeys the distance shall be
500 meters) radius of Defence Establishment inasmuch as the same
may pose a security hazard.
69 If the instruction at Sr. No.2 are read carefully then there
remains no manner of doubt as is argued by learned senior counsel
for the petitioner, that the instructions contained in the said
communication shall not apply to the constructions where those
constructions are regulated by the provisions of existing
acts/notifications viz. Cantonments Act, 2006, Air Craft Act, MoCA,
1934, Gazettee Notification SO 84(E) dated 14.01.2011 (as revised
from time to time), Works of Defence Act, 1903, etc. It further
clarifies that in such cases provisions of the concerned
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Act/Notifications will continue to prevail. Here we remind
ourselves that there is already notification of 100 meters issued
under Sections 3 and 7 of the Defence Act and this being so
unarguably will prevail over this correspondence dated 18 th May,
2011.
70 We are very much clear in our mind that while issuing the
communication dated 1st September, 2011 (Exh.E) by the Wing
Commander, Chief Administrative Officer, Air Force Station Thane
to the TMC, it failed to convey the correct interpretation and
requirement of the instructions/guidelines contained in the letter
dated 18th May, 2011 as analyzed by us herein-above. Therefore, in
our considered opinion, this circular had no bearing or relevance to
the case of petitioner.
71 The next communication is dated 29th June, 2016 written by
Group Captain, Station Commander, Air Force Station Thane to the
TMC informing that as per the Government notification dated 13 th
January, 2010, no construction should be permitted within the
restricted zone of 100 meters from the outer parapet of Air Force
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boundary and beyond the notified zone of 100 meters, no
restriction is required to be imposed as per the Defence Act. This
letter further requested the TMC that cases for construction beyond
100 meters henceforth are not required to be sent to their office for
issue of NOC and the same be dealt at their end as per the laws of
land. Thus, this letter was perfectly in-tune with the notification
dated 14th February, 2007 and 13th January, 2010 issued under the
Defence Act.
72 Now, we come across the impugned communication (Exh. N)
dated 14th March, 2017. The impugned communication runs as
follows:
" Exhibit-N
Tele : 25868501/7202
Fax : 022-25868089
Air Force Station Thane
Kolshet Road,
Sandoz Baug (PO)
Thane (W) - 400 607.
14 Mar 17
26W/S 515/1/Wks
The Municipal Commissioner,
Thane Municipal Commission
Thane.
ISSUE OF NOC WITHIN RESTRICTED ZONE AIR
FORCE STATION THANE
1. Reference is made to our letter No. 26w/s 515/1/
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Wks dated 29 June 16.
2. AF Stn Thane falls within Mumbai Air Space and the
helipad at Air Force Station, Thane witnesses regular
operations. Moreover, this helipad is earmarked for
Prime Minister/other VVIP/VIP movements in Thane
AOR. As per policy, a clear straight approach and take
off path upto 750 meters is required for safe conduct of
operations by helicopters. To ensure safe helicopter
operations at this base, no construction should be
permitted in the approach and take off funnel.
3. This Station has approached higher formations for
clarifications regarding restrictions for new construction
based on necessary horizontal as well as vertical
clearance. Till such time, no further NOCs may be
granted. Latest clarifications will be communicated as
soon as the same are received from higher formations.
4. This is for your information and further necessary
action, please.
Sd/-
(Manu Kapoor)
Group Captain,
Station Commander,
Air Force Station, Thane.
Copy to : DC, Thane
Executive Engineer, TMC
Asstt Director Town Planning, TMC."
73 By virtue of above impugned communication intriguingly
enough, the respondent no.2 took a somersault and informed the
TMC that since Air Force Station Thane falls within Mumbai Air
Space and the helipad at Air Force Station, Thane witnesses regular
operations and further that since it is earmarked for Prime
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Minister/other VVIP/VIP movements, as per policy, a clear straight
approach and take off path upto 750 meters is required for safe
conduct of operations by helicopters. This being so and in order to
ensure safe helicopter operations at its base, no construction should
be permitted in the approach and take off funnel. Second part of
the impugned communication shows that the concerned Air Force
Station Thane had approached higher formations for clarifications
regarding restrictions for new construction based on necessary
horizontal as well as vertical clearance and informed the TMC that
till such time, no further NOCs should be granted.
74 Two significant and salient aspects from the above
communication can be quickly noted. First, Air Force Station
Thane at its end was of the opinion that since Air Force Station
Thane is earmarked for Prime Minister/other VVIP/VIP movements
and as there is a policy which requires a clear straight approach
and take off path upto 750 meters for safe conduct of operations by
helicopters, no construction should be permitted in the approach
and take off funnel. Second, to get clearance of restrictions
required to be imposed on the construction activity upto 750
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meters from the approach and take off funnel of the helicopter
operations, they sought clarification from the higher authorities
that is to say the stamp of approval of higher authorities to impose
said restrictions.
75 The learned senior counsel for petitioner argued with
splendid precision that there is no source of power or authority
disclosing and supporting the claim thereby freezing the
construction activity till 750 meters from the helipad. According to
him it is also not made clear as to under which
Act/Rule/Regulation/Notification or Circular, 750 meters long
flight path is claimed.
76 If this communication is read in its proper perspective then
one does not get much foresight to understand that there was no
Act or Notification which will regulate and restrict the construction
activity upto 750 meters from helipad. Rather, it shows the absence
of Notification, Regulation or existence of any Act so empowering
the Defence Authorities to put restrictions. That is why the defence
authority stipulated in all the communications that clarifications
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are being sought by them from the higher formations. We find
much substance in the contention of learned senior counsel that the
respondent no.2 was not within its right to issue such a
communication to the TMC.
77 It then appears from the record that vide letter dated 22 nd
May, 2018 addressed to The Station Commander, Air Force Station,
Thane, the TMC sought clarification as to the need of NOC. The
respondent-Authorities vide letters (impugned) dated June, 2018
and 6th July, 2018 reiterated the same stand i.e. no construction is
permissible upto 750 meters from the helipad. The impugned
communications (Exh. U and W) read as under:
Exhibit -U
Air Force Station Thane
Kolshet Road, Sandoz Baug
Thane (W) - 400607.
7 June 18
AFSW/S 515/1/12/Wks
Municipal Commissioner
Thane
ISSUANCE OF NOC WITHIN RESTRICTED ZONE AIR
FORCE STATION THANE
Sir,
1. Reference is made to our letter of even reference
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dated 14 Mar 17 and your letter No. TMC/TDD/775 dated
22 May 18.
2. The case for restriction on construction within the
approach and take off path upto 750m for safe conduct of
operation by IAF helicopters has been taken up with higher
formation. The decision is still under consideration.
3. In view of the above, till any decision is arrived no
NOCs may be granted for construction of any building
within the approach and take off path upto 750m.
4. Your cooperation in this regard is highly solicited.
Yours faithfully,
Sd/-
Group Captain
Chief Administrative Officer
Air Force Station, Thane.
Annexure: As stated.
Copy to : Asstt Director Town Planning Chief Planner
HQ SWAC (C Wks O).
..........
Exhibit -W
Tele : 25868501/201
Fax : 022-25868089
Air Force Station Thane
PO Sandouz Baugh
Kolshet Road,
Thane (W) - 400 607.
06 Jul 18
26W/S 515/1/12/Wks
Municipal Commissioner,
Thane.
ISSUE OF NOC WITHIN RESTRICTED ZONE OF AIR
FORCE STATION, THANE
1. Reference is made to your letter No.TMC/TDD/1522
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dated 30 Jun 18.
2. The points brought out in your above quoted letter
was deliberated at this office. It is intimated that as per
published in Part-II Section 4 of Gazette Notification
dated 23 Jan 10, Air Force Station Thane falls within the
100 mtr restriction zone. As per notification, no
construction is permitted within the restricted zone of
100 mtr from the outer parapet of Air Force boundary.
However, as per policy (CASO Volume-III) a clear
straight approach and take off path upto 750 mtr is
required for safe conduct of operations by IAF
helicopters. To ensure safe helicopter operations at this
base, no construction should be permitted in the
approach and take off funnel higher than the specified
height.
3. On the basis of above a letter was sent to your office
vide our letter 26W/S 515/1/Wks dated 14 Mar 17, for
non grant of permission for construction of any building
within the approach and take off path upto 750 mtr.
The case has been taken up with higher authorities for
clarification on the subject.
4. In view of the above, no permission be granted
within the restricted zone mentioned in para 2 and 3
above.
5. Your cooperation in this regards will be highly
solicited.
Yours' sincerely,
sd/-
(Jose Mathai)
Group Captain
Station Commander
Air Force Station,Thane.
Copy to :
Assistant Director of Town Planning, TMC Thane
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Air HQ (SO to DG (Wks)
HQ SWAC IAF (C Wks O).
......
78 It appears from the communication (Exh. U) of June 18 that
the TMC was informed about the pendency of the decision in
respect of restriction on construction within the approach and take
off path upto 750 meters before higher formations.
79 On the other hand, if the communication (Exh.W) dated 6th
July, 2018 is to be seen then it would be seen that the Defence
Authorities by giving reference to CASO policy claimed that within
a length of 750 meters from the helipad no construction should be
permitted and that the case has been taken up with higher
authorities for clarification on the subject.
80 Thus, for the first time the respondent- Authorities took
recourse to CASO policy which was not disclosed on record and
secondly, the higher authorities were still seized of the matter on
the date of said communication. It is quite interesting to note here
that the said CASO policy which was taken recourse of by the
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Defence Authorities was conveniently given up by them by filing
their second affidavit dated 9th October, 2020 inasmuch as the said
affidavit-in-reply nowhere even remotely refers the said CASO
policy. On the contrary, it avers that to ensure safety of aircrafts,
the Government of India has prohibited construction of building or
structures in the vicinity of aerodromes in exercise of power under
Section 9A of Aircraft Act. The affidavit-in-reply further avers that
the proposal to notify heliport at Air Force Station Thane is pending
with Ministry of Civil Aviation and is likely to be notified soon.
81 From the impugned communication as well as the averments
so extracted from the second affidavit-in-reply, which is more than
clear that every thing was in air or vacuum. Even on the date of
filing of affidavit, Air Force Station, Thane regarding which much
hype and hoopla is made concerning security hazard was yet to be
registered with Indian Air Force by the Ministry of Civil Aviation.
Needless to say everything was in abstract.
82 It is also interesting to note from the third affidavit-in-reply
dated 1st December, 2020 that they found that 111086.11 sq.
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meters of petitioner's land is affected by restriction of 750 meters
flight path which includes the land covered by notification by 100
meters under the Defence Act. It also gave up the alleged CASO
policy and circular issued by Government of Maharashtra dated
20th January, 2018 which was referred by them in their first
affidavit-in-reply. They categorically averred that restriction of 750
meters flight path clear of all obstructions imposed by them is on
account of Civil Aviation Requirements issued by Department of
Civil Aviation under the provisions of the Aircraft Act and Rules
framed thereunder. The land affected by this restriction will also
include land affected under notifications issued under the Defence
Act. No other restriction affecting land of petitioner is imposed by
them.
83 The sum and substance of third affidavit-in-reply is that the
Defence Authorities want to cover the case of petitioner under
Section 9A of the Aircraft Act apart from the notification issued
under the Defence Act.
84 We do not find any difficulty in holding that the respondent-
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Defence Authorities have not placed reliance on any of the circulars
and admittedly there is no notification under Section 9A of the
Aircraft Act in order to justify their claim. We have already pointed
out herein-above from the affidavit-in-reply of respondent-
Authorities that heliport at Air Force Station Thane is yet to be
registered as heliport with Civil Aviation. Therefore, we are not in
agreement with learned counsel for respondent-Authorities that
under Section 9A of the Aircraft Act the respondent-Authorities are
well within their right to prohibit the proposed construction activity
of the petitioner.
85 Even otherwise, we are satisfied that none of the letters /
correspondence (quoted and referred extensively herein-above)
refer to any primary legislation and/or delegated piece of
legislation on disclosing their source of power or authority to
impose such restriction (of 750 meters). The respondent- Defence
Authoritie's fervent plea to impose restriction beyond 100 meters,
needless to say, is clearly without any authority of law.
86 Here it is also relevant to note Sections 3 and 7 of the
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Defence Act. Section 3 of the Defence Act reads as under:-
Section 3. Declaration and notice that restrictions will be
imposed -
(1) Whenever it appears to the a[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.
(2) The said declaration shall be published in the b[Official
Gazette] and shall state the district or other territorial
division in which the land is situate and the place where a
sketch plan of the land, which shall be prepared on a scale
not smaller than six inches to the mile and shall distinguish
the boundaries referred to in section 7, may be inspected;
and the Collector shall cause public notice of the substance
of the said declaration to be given at convenient places in
the locality,
(3) The said declaration shall be conclusive proof that it is
necessary to keep the land free from buildings and other
obstructions.
[a] Substituted for the words "Local Government" by A.O. 1937(1-4-1937).
[b] Substituted for the words "Local Gazette"ibid.
Section 7 of the Defence Act reads as under:
Section 7. Restrictions -
From and after the publication of the notice mentioned in
section 3, sub-section (2), such of the following restrictions
as the a[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, -
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(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 b[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
e
[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 b[General Officer Commanding the
District], be made with materials different in
kind from those employed in the original
building, wall, bank or other construction.
(b) Within a second boundary which may extend to a
distance of one thousand yards from the crest of the
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outer parapet of the work, the restrictions
enumerated in clause (a) shall apply with the
following additional limitations, namely:--
(i)d[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 and
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
a[General 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 6[General Officer Commanding the
District]; and
(ii) live hedges, rows or clumps or trees or orchards
shall not be maintained, planted, added to or altered
otherwise than with the written approval of the
b[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
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prescribe, 7[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.
[a] Substituted for the words "Local Government" and "General
Officer Commanding the Division" by A.O. 1937, (1-4-1937)
[b] Substituted for the words "General Officer Commanding the
Division" by the Indian Works of Defence (Amendment) Act, 1921
(11 of 1921), S.3.
[c] Substituted for the words "General Officer Commanding the
Division, District or Brigade", ibid.
[d] Substituted for the words, "no building wall bank of other
construction of permanent materials above the ground shall be
maintained or erected" by the Indian Works of Defence (Amendment)
Act, 1940 (28 of 1940), S.2 (27-11-1940).
[e] Inserted, ibid.
87 There is no dispute to the fact that the Government of India,
Ministry of defence duly published the notifications (Exh. B) dated
14th February, 2007 and 13th January, 2010 under Sections 3 and 7
of the Defence Act. The aforesaid two notifications categorically
state that all areas falling around Air Force Station Thane notified
(Annexture A) need to maintain restriction only for a distance of
100 meters from the boundary of the Defence Establishment.
88 As per Section 7 of the Defence Act, from and after the
publication of the Notice mentioned in Section 3(2), restrictions as
mentioned in the said Section may be imposed by the Central
Government. Such restrictions may include as per clause (a) no
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variation on the ground level or restriction on a construction,
erection, alteration etc. to any building wall etc. otherwise than
with the written approval of the General Officer Commanding of
the District and on such conditions as he may prescribe within an
outer boundary extending upto a distance of 2000 yards from the
crest of the outer parapet of Defence Work.
89 Similarly, as per clause (b) within a second boundary which
may extend to a distance of 1000 yards from the crest of the outer
parapet of the Defence Work, in addition to the restrictions
enumerated under clause (a) above, certain other restrictions will
apply, as such, no building, wall or other construction of the
permanent materials above the ground level shall be maintained,
otherwise than with the written approval of the General Officer
Commanding of the District and on such conditions as he may
prescribe.
90 Similarly, further as per clause (c) within a third boundary
which may extend to a distance of 500 yards from the crest of the
outer parapet of the Defence Work, in addition to the restrictions
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enumerated in clause (a) and (b) and additional limitation will
apply i.e. no building or other constructions on the surface and no
excavation, building or other construction below the surface shall
be maintained or erected; with the written approval of the General
Officer Commanding 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 wet fences may be exempted from
this prohibition.
91 The combined reading of Sections 3 and 7 would make it
clear that the Defence Authorities exercised their right of restriction
by issuing notifications dated 14th February, 2007 and 13th January,
2010 by clearly specifying that all areas falling around Air Force
Station need to maintain restriction only 100 meters from the
boundary of the Defence Establishment. It is relevant to note here
that the notifications came to be issued after considering all
relevant factors pertaining usage of the Air Force Station after
following due process as prescribed under the provisions of the
Defence Act. The said notification still hold field or any restriction
or requirement imposed which are contrary and in addition to the
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said notifications dated 14th February, 2007 and 13th January, 2010
are illegal and contrary to law and those are beyond the scope of
the Defence Act.
92 This being so and the fact that the proposed residential
building of the petitioner is beyond 100 meters from the Defence
Establishment, the respondents' requirement of an Air Force NOC
from the petitioner is contrary to the notifications dated 14 th
February, 2007 and 13th January, 2010.
93 In our view, the reasonable restrictions can be imposed on a
citizens rights guaranteed under Article 19(1)(g) and Section 300A
only by enacted law. The Defence Act is a central legislation
enacted for the purpose of imposing restriction upon the land in
the vicinity of Defence Establishment and for determining
compensation in cases where such restrictions are imposed. The
Defence Act occupies the field and it deals with restriction,
computation, reference, compensation and ultimately the payment
of the compensation. The only way to impose restrictions on
enjoyment of the property in the vicinity of Defence Establishment
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is by invoking powers under the Defence Act.
94 In case of Babu Verghese and Others (Supra) the Hon'ble
Apex Court at para 31 observed that it is the basic principle of law
long settled that if the manner of doing a particular act is
prescribed under any statute, the act must be done in that manner
or not at all. The Hon'ble Apex Court traced the origin of his
decision in Taylor V. Taylor14 which was followed by Lord Roche in
Nazir Ahmad V. King Emperor15, who stated as under:
"[W]here a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all."
95 In the present case, the Defence Authorities have imposed
restrictions of 100 meters by issuing notifications dated 14 th
February, 2007 and 13th January, 2010. Thus, imposition of
restriction of 750 meters by writing letters is not more than the
executive instruction and is thus ultra-vires the Defence Act and
without any notification under the Defence Act or for that matter
the Aircraft Act. The imposition of the restriction is not in the
manner prescribed under Section 9A of the Aircraft Act and is in
14 (1875) 1 Ch D 426 : 45 LJCh 373
15 (1936) 63 IA 372 : AIR 1936 PC 253
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violation of the principles laid down by the Hon'ble Apex Court in
case of Babu Verghese (Supra). In our view, it quite clear that if
law requires doing of an act in and under particular manner, it
must be done in that manner or not at all.
96 The learned senior counsel also took great pains in criticizing
the impugned communications and insistence of the Defence
Authorities requiring their NOC for development by the petitioners
and imposition of restriction of 750 meters of flight path from the
helipad, affecting and impacting the petitioner's entire property
which is plainly without the authority of law and violative of Article
19(1)(g) and 300A of the Constitution of India. According to
learned senior counsel, the impugned communications are in the
nature of executive instructions and that Article 19(1)(g) and
19(6) do not permit executive instructions to take place of law.
The learned senior counsel advanced his submissions in the light of
ratio laid down in Bhishambhar Dayal Chandra Mohan and Others
V. State of Uttar Pradesh and Others (Supra), Hindustan Times and
Others V. State of U.P. and Another (Supra), State of Bihar and
Others V. Project Uchcha Vidya (Supra) and P. H. Paul Manoj Padian
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V. P. Veldurai (Supra).
97 At paragraph 17 in the case of Bhishambhar Dayal Chandra
Mohan and Others V. State of Uttar Pradesh and Others (Supra),
the Hon'ble Apex Court observed that the quintessence of our
Constitution is the rule of law. The State or its executive officers
cannot interfere with the rights of others unless they can point to
some specific rule of law which authorises their acts.
98 In State of M.P. v. Thakur Bharat Singh16 the Hon'ble Apex
Court repelled the contention that by virtue of Article 162, the
State or its officers may, in the exercise of executive authority,
without any legislation in support thereof, infringe the rights of
citizens merely because the legislature of the State has power to
legislate in regard to the subject on which the executive order is
issued. It was observed:
"Every act done by the Government or by its officers must, if
it is to operate to the prejudice of any person, be supported
by some legislative authority."
16 AIR 1967 SC 1170
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99 In paragraph 41 the Hon'ble Apex Court further observed that
the State Government cannot while taking recourse to the
executive power of the State under Article 162, deprive a person of
his property. Such power can be exercised only by authority of law
and not by a mere executive fiat or order. Article 162, as is clear
from the opening words, is subject to other provisions of the
Constitution. It is, therefore, necessarily subject to Article 300-A.
The word "law" in the context of Article-300A must mean an Act of
Parliament or of a State legislature, a rule, or a statutory order,
having the force of law. It also referred the judgment given in
Bhishambhar Dayal Chandra Mohan and Others V. State of Uttar
Pradesh and Others (Supra). In State of Bihar and Others v. Project
Uchcha (Supra), at paragraph 67 the Hon'ble Apex Court again
referred the judgment given in Bishambhar Dayal (Supra).
100 In P.H. Paul Manoj Pandian v. P. Veldurai (Supra), the Hon'ble
Apex Court held as under:
"Para- 46
Under Article 162 of the Constitution, the executive power of
the State extends to matters with respect to which the State
Legislature has power to make laws. Yet the limitations of the
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exercise of such executive power by the Government are two
fold; first, if any Act or Law has been made by the State
Legislature conferring any function on any other authority - in
that case the Governor is not empowered to make any order in
regard to that matter in exercise of his executive power nor can
the Governor exercise such power in regard to that matter
through officers subordinate to him. Secondly, the vesting in the
Governor with the executive power of the State Government
does not create any embargo for the Legislature of the State
from making and/or enacting any law conferring functions on
any authority subordinate to the Governor."
Para-47
Once a law occupies the field, it will not be open to the State
Government in exercise of its executive power under Article 162
of the Constitution to prescribe in the same field by an executive
order. However, it is well recognized that in matters relating to a
particular subject in absence of any parliamentary legislation on
the said subject, the State Government has the jurisdiction to
act and to make executive orders. The executive power of the
State would, in the absence of legislation, extend to making
rules or orders regulating the action of the Executive. But, such
orders cannot offend the provisions of the Constitution and
should not be repugnant to any enactment of the appropriate
Legislature. Subject to these limitations, such rules or orders
may relate to matters of policy, may make classification and may
determine the conditions of eligibility for receiving any
advantage, privilege or aid from the State.
Para-48
The powers of the executive are not limited merely to the
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carrying out of the laws. In a welfare state the functions of
Executive are ever widening, which cover within their ambit
various aspects of social and economic activities. Therefore, the
executive exercises power to fill gaps by issuing various
departmental orders. The executive power of the State is
coterminus with the legislative power of the State Legislature.
In other words, if the State Legislature has jurisdiction to make
law with respect to a subject, the State Executive can make
regulations and issue Government Orders with respect to it,
subject, however, to the constitutional limitations. Such
administrative rules and/or orders shall be inoperative if the
Legislature has enacted a law with respect to the subject. Thus,
the High Court was not justified in brushing aside the
Government Order dated November 16, 1951 on the ground
that it contained administrative instructions."
101 From the above pronouncement, it does not take much
prescience to understand that once a law occupies the field, it will
not be open to the State Government or Central Government, as
the case may be, to prescribe in the same field by an executive
order. Quint essentially, the requirement is of enacted law
occupying the field. In the case in hand, at the cost of repetition,
there is notification issued under the Defence Act occupying the
field and therefore, by no stretch of imagination or under the garb
of executive powers, the Defence Authorities could have ventured
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to impose restrictions of 750 meters by indulging into unwarranted
various correspondence.
102 We have carefully gone through the decisions of the Hon'ble
Apex Court in case of Harikrishna Mandir Trust v. State of
Maharashtra and Others (Supra), B.K. Ravichandra and Ors. V.
Union of India and Ors. (Supra). In almost all the decisions
(Supra), it has been held by the Hon'ble Apex Court that the right
to property may not be fundamental right any longer, but it is still a
constitutional right under Article 300A and a human right and in
view of the mandate of Article 300A, no person is to be deprived of
his property save by authority of law. In other words, we may say
that the right to property though may not be a basic feature of the
Constitution or a fundamental right but has now come to be
considered to be not only a constitutional or statutory right, but
also a human right. Viewed thus, we hold that the impugned
communications are plainly executive instructions and not enacted
by law. This has directly resulted into interference with the
petitioner's right to property without authority of law. The
impugned communications, in the circumstances, are plainly and
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clearly violative of Article 300A of the Constitution of India.
103 It appears from the record that on 5th June, 2019, a joint
meeting under the chairmanship of Chief Secretary of Government
of Maharashtra was held with respect to the restriction of
development by Air Force Authorities. The said meeting was
attended by Principal Secretary, Urban Development Department,
Chief Administrative Officer of Air Force Station Thane and
Director of petitioner-company. The minutes of the meeting would
show that as no notification was issued by the concerned authority
in respect of limitation of construction within the proposed funnel
zone, it was found to be not proper to reject the development
proposal received by the TMC. It was further noted that, however,
in view of the planning of helipad funnel zone necessary from the
point of view of the Defence Department, the TMC should not be
held responsible and there is no objection for giving approval to the
petitioner subject to execution of indemnity bond by the petitioner.
But the commencement certificate will be issued after the NOC is
received from the department.
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104 Similarly, another meeting was held on 5th July, 2019 under
the chairmanship of the Chief Secretary and the said persons
attended the said meeting. The minutes of the meeting would
show that until the notification is issued by the Defence
Department regarding helipad funnel zone, the proposal of
development in respect of land in the said areas should be
sanctioned subject to the indemnity bond of the developer.
However, the commencement certificate of such construction
proposal will be issued after the NOC is obtained from the Defence
Department.
105 The above noted minutes of the meetings are also assailed by
the petitioner in the present petition. According to learned senior
counsel for the petitioner, an undertaking was given under a hope
that the Defence Authorities would be reasonable in issuing NOC in
the absence of any power to freeze construction. Since the Defence
Authorities have been unreasonable or without authority or power
withheld the NOC or insisted on NOC the petitioner was
constrained to challenge the minutes of the said meetings as the
UDD has no power or authority under the MRTP Act to impose any
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such condition unless the same exists in the development plan. We
have already pointed out during the earlier part of our discussion
that how the proposed restriction of 750 meters on account of Civil
Aviation requirement is in the vacuum or air.
106 In the instant case, at the time the TMC put the rider while
approving the final building plan there was no draft policy (of 750
meters) in existence. It was at the most in contemplation as was
canvassed throughout by respondent nos. 1 to 4 and 9. If there had
been such a concrete policy, the TMC would be entitled to rely
upon the same and ought to have rejected the plan submitted by
the petitioner. But as there was no such policy, as repeatedly raised
by respondent nos. 1 to 4 and 9, the TMC was not justified in
putting riders merely relying upon a would be proposal for the
drawing of a draft policy prohibiting construction of 750 meters in
the approach and take off funnel (of operations by helicopters.
107 Section 46 of the MRTP Act stipulats the factors which are
required to be considered prior to granting development
permission. The TMC being a planning authority is bound by the
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MRTP Act as well as the DCR. We may note that in the present
case the Government of Maharashtra, initially legislated unified
regulations dated 2nd December, 2020 which inter-alia provided in
Regulation No. 10.2.5(iii) and 10.2.5(iv), a ban on construction
upto 750 meters in the approach and take off funnel zone Air Force
Station Thane. However, by a corrigendum dated 9 th December,
2020, the aforesaid two provisions came to be deleted. This being
so, with regards to the subject plot there is no restriction of
whatsoever nature of MRTP Act or the DCR. This being so, any
instructions issued or power exercised which is not empowered
under the DCR is ultra-vires the MRTP Act as well as the DCR.
108 In this regard, the learned senior counsel for the petitioner
has placed reliance in the case of S.N. Rao and Ors. (Supra)
wherein the Hon'ble Apex Court at para 8 observed that:
"Para-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
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plan was not published. In the instant case, however, at the
time the Municipal Commissioner rejected the plan
submitted by the respondent No. 5, there was no draft
revised development plan in existence. It was in
contemplation. If there had been such a plan, the Municipal
Commissioner would be entitled to rely upon the same in
rejecting the plan submitted by the respondent No. 5. But,
as there was no such draft revised plan as has been stated
before this Court even by the Counsel for the Municipal
Corporation, the Municipal Commissioner was not justified
in merely relying upon a proposal for the preparation of a
draft revised plan. An order rejecting a development plan
submitted by the owner of the land should be supported by
some concrete material. In the absence of any such material,
it will be improper to reject the plan on the ground that
there is a proposal for revision of the draft plan or that such
a revision is under contemplation. We are, therefore, of the
view that the ground for rejecting the plan submitted by the
respondent No. 5 was not tenable and the appellate
authority was justified in allowing the appeal."
109 We have repeatedly pointed out that as on the date of taking
undertaking from the petitioner or for that matter asking the
petitioner to furnish NOC from the respondent-Defence Authorities
there was nothing on record to show that there was ban on
construction upto 750 meters in the approach and take off funnel
zone of Air Force Station Thane. In our considered opinion, the
TMC could not have imposed a condition (Condition No. 10) for
development permission on the basis of statement made by the
Defence Authorities that their proposal regarding restriction on
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construction upto 750 meters is under consideration before the
Defence formation. Thus, the decisions of the UDD dated 5 th June,
2019 and 5th July, 2019 are clearly without any authority and
powers available under the MRTP Act or the DCR.
110 Mr. Mishra, learned counsel for the respondent-Defence
Authorities, strenuously attempted to justify the imposition of the
condition by the TMC by placing reliance on three judgments,
namely, TCI Industries Limited (Supra), S.S.V. Developers and Ors.
(Supra) and Sunbeam Enterprises (Supra). In the case of TCS
Industries Limited (Supra) this Court held that 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. 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. This Court further noted the DC Regulation 16(n), and
held that in the light of this Regulation the Planning Authority may
refuse to grant permission of using the land if the proposed
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development is likely to involve damage or to have a deleterious
impact on or is against the aesthetics or environment or ecology
and/or historical or architectural or aesthetical building and
precincts or is not in the public interest. This judgment was also
followed by this Court in the case of S.S.V. Developers and Ors.
(Supra) and Sunbeam Enterprises (Supra).
111 We have carefully gone through the judgments relied upon by
the learned counsel for the respondent-Defence Authorities and in
our considered opinion the said judgments will not bail out the
respondent-Defence Authorities for the following reasons.
112 There was no notification, like in the present case, under the
Defence Act holding the field. Similarly, there was no equivalent
DCR in the case of TMC equal to regulation 16(n) of DCR 1991
applicable in Mumbai. On the contrary, the property of the
petitioner in the present case is situated in Thane which is
governed by unified Development Control and Promotion
Regulations for Maharashtra Stat ("unified DCR") promulgated
by the State of Maharashtra under Section 31 of the MRTP Act.
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Initially, which is not disputed by the learned counsel for the
respondent that the unified DCR in regulation 10.2.5(iii) and (iv)
provided for restriction of 750 meters in the approach and take off
path for safe operations of helicopter which was subsequently
deleted by corrigendum dated 9th December, 2020. A copy thereof
is very much available on record for perusal.
113 It may be seen from the unified DCR filed on record by
learned senior counsel for the petitioner that regulation 3.1.11
provides for restrictions on carrying out construction in areas
where notification under the Defence Act is in force. Regulation
3.1.1 also provides for certain restrictions for carrying out
construction, however, there is no restriction for Thane District as
provided under regulation 16(n) which was applicable to the city
of Mumbai.
114 Apart from above, in the case of TCI (supra) a circular under
Section 154 of MRTP Act was relied upon which was not
challenged and admittedly there was no challenge in that case to
any of the circulars or communications. In the case in hand,
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however, various correspondence/circulars have been challenged
by the petitioner herein. The learned counsel for respondent-
Defence Authorities, therefore, cannot fly against the material on
record and similarly, the Defence Authorities cannot vindicate their
claim under the garb of ratio laid down in the decisions (Supra)
relied on by them which is clearly not applicable to the case in
hand.
115 Lastly, by way of feeble attempt, Mr. Mishra, learned counsel
for respondent nos. 1 to 4 and 9, during the course of argument
submitted that the petitioner has efficacious alternative remedy
under Section 47 of MRTP Act to challenge conditions imposed
while granting development permission. Therefore, on this ground
alone the petition should not be entertained and ought to be
rejected. This submission of Mr. Mishra, learned counsel for
respondent-Defence Authorities, is seriously contested by Mr.
Samdhani, learned senior counsel for the petitioner, by submitting
that the Appeal under Section 47 of the MRTP Act is neither
alternative nor efficacious inasmuch as the relief of challenge to the
communications issued by Defence Authorities and to the decision
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of the UDD is unavailable by way of appeal. This counter of learned
senior counsel can't be easily outwitted. We refuse to buy the
submission of learned counsel for respondent-Defence Authorities
for the reasons to follow hereinafter.
116 Section 47 of the MRTP Act provides that any applicant
aggrieved by an order granting permission on conditions or
refusing permission under Section 45 may, within 40 days of the
date of communication of the order to him, prefer an appeal to the
State Government or to an officer appointed by the State
Government in this behalf.
117 The discussion made by us so far would demonstrably show
that the imposition of condition by the TMC was based on the
outcome of meetings held by Chief Secretary, Government of
Maharashtra which were attended by all concerned including the
petitioner. Also the condition (10) was imposed in the backdrop of
various communications issued by respondent-Defence Authorities
from time to time. We have in the earlier part of our discussion
minutely gone through those communications and concluded that
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those communication do not stand to judicial scrutiny and
consequently failed to muster our stamp of approval.
118 In this premise, there was no legal foundation at all to impose
any sort of condition by the TMC much less the condition no.10.
This being clear obtaining situation there was no remedy but to
challenge those communications and the condition (10) imposed
by the TMC flowing therefrom by the petitioner. The petitioner has
precisely done that and therefore, cannot be shown door under the
pretentious defence of efficacious alternate remedy under Section
47 of MRTP Act, which in the facts and circumstances of the case is
far fetched and is not available. We, therefore, reject this
submission.
119 Mr. Samdhani, learned senior counsel for the petitioner, lastly
submitted that respondent nos. 1 to 4 and 6 be directed to initiate
action under Section 8 to 17 of the Defence Act and pay
compensation to the petitioner under the provisions of Defence Act
with respect to the subject plot affected by the 100 meters
restriction vide Notifications dated 14th February, 2007 and 23rd
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January, 2010.
120 At the very beginning we had pointed it out from the
affidavit-in-reply of the TMC that subject plot partly falls within
100 meters from the outer parapet of Air Force Station Thane.
Approximately 6923.40 sq. meters (16%) of the said plot is within
the "No Development Zone". Balance 35630 sq. meters (84%) of
plot is outside the "No Development Zone" and on the said portion
of plot, there are no restriction on Development other than those
provided by the sanctioned development plan and DCR. Needless
to say the Competent Authority will have to ascertain and
determine the part of subject land which is directly affected by the
restrictions imposed by notifications dated 14th February, 2007 and
13th January, 2010 under the scheme of the Defence Act which is
the complete code in itself. We find merit in the submission of
learned senior counsel that the petitioner is entitled to receive
compensation for the part of land which is directly affected by the
aforesaid two notifications. Needless to say, the scheme of
acquisition of compensation is provided under the Defence Act
from Section 8 to 17 and further Reference to Court from Section
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18 to 28. The respondent nos. 1 to 4 and 6 will have to undertake
an exercise in this regard.
121 In the result, we pass the following order.
ORDER
i) The impugned Communications dated 14th March,
2017, June 2018 and 6th July, 2018 passed by the
Defence Authority are quashed and set aside.
ii) It is declared that restrictions imposed on the
basis of the policy CASO Volume-III is contrary to
Notifications dated 14th February, 2007 and 13th
January, 2010 issued under the Works of Defence Act,
1903.
iii) Decisions dated 5th June, 2019 and 5th July, 2019
taken by Urban Development Department,
Government of Maharashtra are quashed and set
aside.
iv) Condition No.10 of development permission
dated 27th August, 2019 requiring the petitioner to
obtain NOC from the Defence Authority prior to
carrying out any construction is quashed and set
aside.
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v) Respondent Nos. 5, 7 and 8 are hereby directed to
process and sanction of planning permission for
construction in respect of subject property without
insisting the NOC from Respondent Nos. 1 to 4 and 6
within eight weeks from the date of receipt of
authenticated copy of this Judgment.
vi) Respondent nos. 1 to 4 and 6 are further
directed to initiate action under Section 8 of the
Works of Defence Act, 1903 and to pay compensation
to the petitioner under the provisions of the Works of
Defence Act, 1903 in respect of the part of the subject
property which is affected by the Notifications dated
14th February, 2007 and 13th January, 2010.
vii) Rule is made absolute in aforesaid terms.
viii) There shall be no order as to costs.
(V. G. BISHT, J.) ( R. D. DHANUKA, J.)
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