Bombay High Court
Gorakhnath Shankar Nakhwa And 4 ... vs The Municipal Commissioner Of ... on 9 December, 2022
Bench: R.D. Dhanuka, Kamal Khata
wp113-19.doc
vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KANCHAN Digitally signed by
KANCHAN VINOD ORDINARY ORIGINAL CIVIL JURISDICTION
VINOD MAYEKAR
Date: 2022.12.09
MAYEKAR 14:51:35 +0530
WRIT PETITION NO.113 OF 2019
1. Gorakhnath Shankar Nakhwa, age 46 years,
residing at 203, Tulip, Dosti Acres, Wadala
East, Mumbai - 400037.
2. Rakesh Bangera, age 46 years,
residing at Gaondevi Darshan, 309 - B,
2nd Mazgaon Koliwada, Dockyard Road,
Mumbai - 400 010.
3. Bertram Anthony Fernandes,age 46 years,
residing at 384B, Patel Terrace,
D Jijamata Road, Opp.Aghadi Nagar,
Andheri (East), Mumbai - 400 093.
4. Nimesh Rathod, age 37 years,
residing at 315, Kulsumabai Building,
Ground Floor, Flat No.1, D.B. Irani Wadi,
Mazgaon, Mumbai - 400 010.
5. Nakhwa and Jasol Developers LLP
A Limited Liability Partnership incorporated
under the provisions of Limited Liability
Partnership Act, 2008, having its address at 1
Ground Floor, Vidhilikhit Co-operative
Housing Society Limited, N.V. Nakhwa
Road, Mazgaon, Mumbai - 400 010. ...Petitioners
....Versus....
1. The Municipal Commissioner of Municipal
Corporation of Greater Mumbai, having
its office at Municipal Corporation Head
Office, Mahanagar Marg, Mumbai - 400 001.
2. Union of India, through Ministry of
Defence having its office at 130-E,
South Block, New Delhi - 110 011.
Also having its office at Maharshi
Karve Road,
1
wp113-19.doc
Churchgate,Mumbai, Maharashtra - 400 020.
3. State of Maharashtra through Ministry
of Urban Development having its office
at Mantralaya, Madam Cama Road,
Hutatma Rajguru Square, Nariman Point,
Mumbai - 400 032.
4. Maharashtra Housing And Area Development
Authority having its office at Grihanirman
Bhavan, Kalanagar, Bandra (East), Mumbai
400 051.
5. Maharashtra Real Estate Regulatory Authority
having its office at 3rd Floor, "A" Wing,
SRA Administrative Building, Anant Kanekar
Marg, Bandra (East), Mumbai,
Maharashtra - 400 051.
6. Mazgaon Dock Shipbuilders Limited,
having its office at Dockyard Road,
Mazagaon, Mumbai - 400 010. ...Respondents
WITH
INTERIM APPLICATION NO.2270 OF 2019
IN
WRIT PETITION NO.113 OF 2019
Shree Swami Samarth Co-op. Housing
Society (proposed),
Through its authorized representative
Mr.Prakash Mahadev Nevalkar,
Having address at Laxmi Niwas Building,
Building No.5, Ground Floor,
Bramhadev Khot Marg, Dockyard Road, Applicants/
Mazgaon, Mumbai - 400 010. Intervenors
IN THE MATTER OF :-
1. Gorakhnath Shankar Nakhwa, age 46 years,
residing at 203, Tulip, Dosti Acres, Wadala
East, Mumbai - 400037.
2
wp113-19.doc
2. Rakesh Bangera, age 46 years,
residing at Gaondevi Darshan, 309 - B,
2nd Mazgaon Koliwada, Dockyard Road,
Mumbai - 400 010.
3. Bertram Anthony Fernandes,age 46 years,
residing at 384B, Patel Terrace,
D Jijamata Road, Opp.Aghadi Nagar,
Andheri (East), Mumbai - 400 093.
4. Nimesh Rathod, age 37 years,
residing at 315, Kulsumabai Building,
Ground Floor, Flat No.1, D.B. Irani Wadi,
Mazgaon, Mumbai - 400 010.
5. Nakhwa and Jasol Developers LLP,
A Limited Liability Partnership incorporated
under the provisions of the Limited Liability
Partnership Act, 2008, having its address at 1
Ground Floor, Vidhilikhit Co-operative
Housing Society Limited, N.V. Nakhwa
Road, Mazgaon, Mumbai - 400 010. ...Petitioners
....Versus....
1. The Municipal Commissioner of Municipal
Corporation of Greater Mumbai, having
its office at Municipal Corporation Head
Office, Mahanagar Marg, Mumbai - 400 001.
2. Union of India, through Ministry of
Defence having its office at 130-E,
South Block, New Delhi - 110 011.
Also having its office at Maharshi
Karve Road,
Churchgate,Mumbai, Maharashtra - 400 020.
3. State of Maharashtra through Ministry
of Urban Development having its office
at Mantralaya, Madam Cama Road,
Hutatma Rajguru Square, Nariman Point,
Mumbai - 400 032.
4. Maharashtra Housing And Area Development
Authority having its office at Grihanirman
Bhavan, Kalanagar, Bandra (East), Mumbai
400 051.
3
wp113-19.doc
5. Maharashtra Real Estate Regulatory Authority
having its office at 3rd Floor, "A" Wing,
SRA Administrative Building, Anant Kanekar
Marg, Bandra (East), Mumbai,
Maharashtra - 400 051.
6. Mazgaon Dock Shipbuilders Limited,
having its office at Dockyard Road,
Mazgaon, Mumbai - 400 010. ...Respondents
Mr.Pravin Samdani, Senior Counsel with Mr.Sujit Lahoti, Mr.Ziayad
Madon, Mr.Parth P. Shah i/b M/s.Sujit Lahoti And Associates for the
Petitioners.
Mr.Chinmay Acharya for the Applicant.
Ms.Purnima Kantharia with Ms.Sheetal Metakari i/b Mr.Sunil
Sonawane for MCGM - Respondent No.1.
Mr.Anil Singh, ASG with Mr.Aditya Thakkar, Mr.Yogeshwar S. Bhate,
Ms.Savita Ganoo and Mr.Pavan Patil for the Respondent No.2.
Mr.Abhay L. Patki, Additional Government Pleader for the State -
Respondent No.3.
Ms.Sayli Apte with Ms.Shreya Shah i/b Mr.P.G. Lad for MHADA -
Respondent No.4.
Mr.Aseem Naphade with Ms.Shristi Shetty, Ms.Heena Shaikh and
Mr.Bhavesh Wadhwani i/b M/s.M.V. Kini & Co. for the Respondent
No.6.
CORAM : R.D. DHANUKA &
KAMAL KHATA, JJ.
DATE OF RESERVE : 20TH SEPTEMBER, 2022.
DATE OF PRONOUNCEMENT: 9TH DECEMBER, 2022.
JUDGMENT (Per R.D. Dhanuka, J.):-
1. By this petition filed under Article 226 of the Constitution of
India, the petitioners have prayed for a writ of certiorari for quashing
wp113-19.doc
and setting aside the impugned orders dated 18th April, 2018 and 4th
May, 2018 passed by the respondent no.1 Corporation. The
petitioners have also prayed for a writ of mandamus against the
respondent no.1 Corporation to issue a further / final commencement
certificate to the petitioners.
2. The petitioners have further prayed for a declaration that
the notification dated 28th July, 1987, guidelines dated 18th May,
2011, 18th March, 2015, 17th November, 2015, and 21st October,
2016, letter dated 27th February, 2020 and the internal note dated 9 th
August, 2017 are not applicable to the petitioners' project and for
quashing thereof.
3. By consent of parties, the writ petition is heard finally at the
admission stage. Some of the relevant facts for the purpose of
deciding this petition are as under :-
4. On 28th July, 1987, the Government of Maharashtra issued
a notification declaring the area of Mazagaon Dock Ltd. including 200
meters of water front area, as a 'prohibited place' under sub-clauses
(c) and (d) of section 2(8) of the Official Secrets Act, 1923. It is the
case of the petitioners that sometime in the year 2009, the
respondent no.6 learnt of high rise construction of Bomanji
Dhunjibhoy from a newspaper article.
5. It is the case of the respondent no. 6 that on 26th February,
wp113-19.doc
2009 it addressed a letter to the Municipal Commissioner opposing
the construction of Bomanji Dhunjibhoy's proposed project. On 30 th
November, 2009 the respondent no.6 addressed a letter to Bomanji
Dhunjibhoy Pvt.Ltd. intimating that the respondent no.6 had no
authority to grant permission to any project not situated on the land
under its jurisdiction, but that the Mazagaon Dock lands has been
declared as Prohibited place under the Official Secrets Act, 1923.
6. It is the case of the petitioners that on 23rd December,
2009, the respondent no.6 addressed a letter to the said Bomanji
Dhunjibhoy Pvt. Ltd. intimating that its lands did not fall under the
jurisdiction of respondent no.6. Sometime in the year 2011, the
petitioner nos. 1 to 4 formed the petitioner no.5 an LLP.
7. On 18th May, 2011, the respondent no.2 issued guidelines.
In paragraph 1(b) of the said guidelines, requirement of NOC for
building constructions within 100 meters of Defence Establishments
(500 meters for multistorey buildings) where the local municipal laws
did not require any such NOC was imposed.
8. On 4th September, 2012, this Court passed an order in Writ
Petition No. 1000 of 2012 in relation to the property of Bomanji
Dhunjibhoy Pvt. Ltd. This Court held that prior notice to be given to
the respondent no.6 before plans would be sanctioned by the
Municipal Corporation to permit them to file objections. In paragraph
wp113-19.doc
(11) of the said order, this Court held that there was no adjudication
on the objections of the respondent no.6 regarding the proposed
development. This Court made it clear that the respondent no.6 may
pursue such remedies as may be available to it.
9. On 10th May, 2013, the petitioners obtained No Objection
from the respondent no.4 for carrying out construction and
redevelopment of the property known as Laxmi Niwas situated at CS
No.220 and 221 of Mazgaon division bearing Cess No.E/6914-15
situated at 13-15-17, 1st Carpenter Street, Mazgaon, Mumbai - 400
010 (hereinafter referred to as "the writ property"). The said project
consists of ground plus 19 floors out of which 12 floors are meant for
rehabilitation of the existing tenants and the remaining for free sale.
Third party rights have already been created of the free sale area.
The said project is under section 33 (7) of the DCR and
contemplates housing 19 tenants on first 13 floors. Reducing the
height would make the project unviable and would adversely affect
the tenants as well as the third parties.
10. On 2nd June, 2014, the respondent no.6 addressed a letter
to the respondent no.1 opposing the construction of Bomanji
Dhunjibhoy's proposed project. On 18th March, 2015, the respondent
no.2 issued guidelines amending the guidelines dated 18th May, 2011
by adding a proviso to paragraph 1(b) thereto to the effect that the
wp113-19.doc
NOC from the Local Military Authority/Defence Establishment would
not be required in respect of construction for which permission had
been issued by the Local Military Authority prior to 18th May, 2011.
11. On 27th May, 2015, the respondent no.1 issued Intimation
of Disapproval issued by the respondent no.1 for the petitioners'
project. On 28th October, 2015 the respondent no.6 addressed a letter
to the respondent no.2 raising various objections regarding the said
project of the Bomanji Dhunjibhoy Pvt. Ltd.
12. On 17th November, 2015, the respondent no.2 issued
guidelines amending the guidelines dated 18th May, 2011 by adding a
second proviso to paragraph 1(b) of the said guidelines dated 18th
May, 2011 with respect to projects in the shadow of an existing
building. On 18th March, 2016, NOC was obtained by the petitioners
from the Maharashtra Coastal Zone Management Authority for
construction of the petitioners' project i.e. a building consisting of
ground plus 19 floors.
13. On 4th April, 2016, the respondent no.1 issued a
commencement certificate for the said project of the petitioners valid
upto 3rd April, 2017. On 17th June, 2016, the respondent no.4 issued
a revised No Objection Certificate.
14. On 21st October, 2016, the respondent no.2 issued
guidelines amending the guidelines under the circulars dated 18th May
wp113-19.doc
2011, 18th March 2015 and 17th November 2015 by imposing a
requirement of obtaining a prior No Objection Certificate from the
Local Military Authority/Defence Establishment with respect to 193
stations listed at Part A of the Annexure thereto. It is the case of the
petitioners that the premises of the respondent no.6 did not feature in
either part of the annexure to the said guidelines.
15. On 1st February, 2017 the commencement certificate came
to be endorsed upto plinth level in the said project valid upto 31 st
January, 2018. On 22nd February, 2017, the commencement
certificate came to be endorsed upto the 10th floor valid upto 2nd April,
2017.
16. On 9th August, 2017 the Ministry of Defence issued a
communication stating that the respondent no.6 being a Public Sector
Undertaking, was the Local Military Authority for its premises.
17. On 12th December, 2017, the respondent no.6 addressed a
letter to the respondent no.1 objecting to the petitioners' project and
forwarding certain documents in relation to the Bomanji Dhunjibhoy
Project. It is the case of the petitioners that the respondent no.6
objected to the petitioners' project for the first time. On 16 th January,
2018, the respondent no.1 addressed a letter to the petitioners
requesting to file its explanation in response to the letter dated 12th
December, 2017 addressed by the respondent no.6.
wp113-19.doc
18. On 24th January, 2018, the Minister of Defence addressed
a letter to Mr.Narendra K.Sawaikar, Member of Parliament informing
him that in light of the prevailing security scenario, issuance of NOCs
for redevelopment of cessed buildings on the plot of Mazagaon
Division, Mumbai could not be considered at that stage.
19. On 31st January, 2018, the licensed surveyor of the
petitioners addressed a letter to the respondent no.1 contending that
none of the papers/permissions issued so far mentions the
requirement of NOC of respondent no.6. There was no mention in
DCR 2034 that the petitioners' plot falls in defence public sector
undertaking. First 12 floors of the building were the rehab component
and the petitioners are paying heavy rent towards alternate
accommodation. The said plot was approximately 92.5 meters away
from the plot of the respondent no.6.
20. On 8th February, 2018, the Minister of Defence addressed
a letter to Mr.Shripad Naik, Minister of State (I/C), AYUSH informing
him that in the light of the prevailing security scenario, issuance of
NOCs for redevelopment of cessed buildings on the plot of Mazagaon
Division, Mumbai could not be considered at that stage.
21. On 23/02/2018, the Ministry of Defence addressed a letter
to respondent No.6 directing it not to issue any no objection certificate
for redevelopment of cessed buildings and to oppose approval of
wp113-19.doc
high-rise buildings in the vicinity before the concerned authorities.
22. On 27/02/2018, respondent No.1 addressed a letter to
respondent No.6 informing it about the letter dated 31/01/2018
addressed by the petitioners' architects and that no buffer zone exists
for Mazagon Docks, as the same are available only to Defence areas
across Mumbai, as per directions of the Ministry of Defence. On
20/03/2018, the licenced surveyor / architect of the petitioners
addressed a letter to respondent No.1 requesting for grant of the final
Commencement Certificate.
23. On 03/04/2018, the Executive Engineer (BP) City
addressed an internal letter to the Chief Engineer (DP) City,
requesting for approval for processing the further Commencement
Certificate. On the said letter, the Municipal Commissioner made a
noting on 18/04/2018 to 'stop work'. Respondent No.1 issued the
impugned order in accordance with the noting of the Municipal
Commissioner viz. to ensure whether the vicinity of 'Dock
Establishment' was mentioned in DP remarks or any other document
and to ask the architect not to proceed with further work on site and
also to examine the possibility of making the walls facing the dock
area as dead wall. On 04/05/2018, respondent No.1 issued the
impugned notice to the petitioners' architects, instructing them not to
proceed with any further work on site, till approval from the competent
wp113-19.doc
authority was obtained with regard to the objection raised by
respondent No.6.
24. On 09/05/2018, the Executive Engineer (BP) City
addressed an internal letter, requesting for the approval of the Chief
Engineer (BP) and the Municipal Commissioner for processing the file
for further Commencement Certificate by building dead walls and
vision cutters facing the Dock Yard. On the said internal letters, the
Chief Engineer (DP) made a noting on 14/05/2018 stating that
respondent No.6 has now objected to the construction of the building;
the Architect of the petitioners has proposed building a dead wall and
since there was no deterrent provision in the DCR/SRDP/DP 2034, it
is proposed to process further Commencement Certificate as
proposed by the Executive Engineer.
25. On 23/05/2018, the Municipal Commissioner made a
noting on the said letter dated 09/05/2018 instructing to write back
and ask them under which provision, this restriction is being sought.
It was further directed that, it should be made clear that such
haphazard demands for restrictions would offer them up for facing
allegations and also would have to face payment of compensation.
Respondent No.1 accordingly addressed a letter to respondent No.6
on 31/05/2018 asking it to specify under which law and policy, it had
sought such restriction. In response to the said letter dated
wp113-19.doc
31/05/2018, respondent No.6 responded on 06/06/2018.
26. On 24/07/2018, the Deputy Chief Engineer (BP) City
addressed a letter to the Municipal Commissioner and stated that
respondent No.6, by its letter in reply dated 06/06/2018, had placed
reliance on the letter dated 23/02/2018 issued by the Minister of
Defence. Respondent No.6 in its letter did not mention any
notification / policy / circular under which this restriction is sought, nor
did it mark any buffer zone. On 31/08/2018, the petitioners filed the
present writ petition for various reliefs.
27. On 24/07/2019, respondent No.1 granted approval for a
Municipal Hospital located 90 meters away from the premises of
respondent No.6. On 23/10/2019, respondent No.1 issued an NOC
for the proposed Cancer Hospital located 90 meters from the
premises of respondent No.6.
28. It is the case of the petitioners that the said proposed
Hospital premises would comprise of Ground plus 14 floors, with a
height of 58.64 meters. The petitioners have placed reliance on the
Scrutiny Report of Amended Plans for the proposed Cancer Hospital.
According to the petitioners, the proposed hospital building would
have an height of 69.95 meters.
29. On 22/01/2020, respondent No.6 addressed a letter to
respondent No.2 stating that it had examined the petitioners' proposal
wp113-19.doc
to build a dead wall with a three meter parapet over the terrace, but
was not in possession of any Government Guidelines on the basis of
which, the proposal could be evaluated. It further noted that
respondent No.2 had previously rejected a similar proposal made by
Bomanji Dhanjibhoy.
30. On 05/02/2020, respondent No.2 addressed a letter to
respondent No.6 in reply to its letter dated 12/12/2019 enclosing
therewith copies of the Guidelines dated 18/05/2011, 18/03/2015 and
17/11/2015, which were applicable pan India, including Mumbai.
31. On 13/02/2020, respondent No.6 addressed a letter to
respondent No.2 seeking clarifications on certain points, including
whether it was a Local Military Authority, and whether the Circulars
dated 18/05/2011, 18/03/2015, 17/11/2015 and 21/10/2016 were
applicable to it. It also requested respondent No.2 to examine the
petitioners' proposal, as sought by this Court.
32. On 14/02/2020, respondent No.2 addressed a letter to
respondent No.6, reiterating the direction issued on 23/02/2018 to
oppose approval to high-rise building in the vicinity of the shipyard
due to security concerns. On 17/02/2020, respondent No.2
addressed a letter to respondent No.6, requesting it to take action as
per the Guidelines dated 18/05/2011, 18/03/2015 and 17/11/2015 as
communicated vide letter dated 29/01/2020. On 09/03/2020, this
wp113-19.doc
Court passed an order directing respondent No.2 to examine the
petitioners' proposal on or before 26/03/2020.
33. On 19/03/2020, respondent No.2 addressed a letter to
respondent No.6 stating that it had examined the proposal of the
petitioners submitted to it by respondent No.6, but was unable to
consider the same due to the security scenario reported by security
agencies due to construction of high-rise buildings close to Defence
Public Sector Undertakings, as stated in the letters dated 23/02/2018
and 14/02/2020.
34. In the month of September, 2021, the petitioners amended
the writ petition (pursuant to order dated 31/08/2021) and challenged
the Notification dated 28/07/1987, the Guidelines dated 18/05/2011,
18/03/2015, 17/11/2015 and 21/10/2016 and Letter dated 17/02/2020
and the Internal Noting dated 09/08/2017.
35. Mr. Samdani, learned senior counsel for the petitioners
invited our attention to various exhibits annexed to the petition,
various averments made by his clients in the petition, the averments
made by the respondents in various affidavits and tendered a copy of
the compilation of judgments. He also tendered copies of the relevant
provisions of the Official Secrets Act, 1923, Work of Defence Act,
1903, Google Map, Home Department (Special) Order dated
29/08/1986 and Gazette Notification and Fax Message dated
wp113-19.doc
17/11/2016 sent by Dinesh K. Tripathi.
36. Learned senior counsel for the petitioners placed reliance
on Section 46 of the Maharashtra Regional Town Planning Act, 1966
(for short "MRTP Act") and submitted that the said provision does not
put any restriction under the Development Control Regulations (for
short "DCR") or under the Development Plan (for short "DP") of the
nature sought to be imposed by the impugned communication. The
impugned notice and the impugned stop work notice are without
authority of law and dehors the DP and the MRTP Act. The Municipal
Corporation did not impose a condition on the petitioners to obtain the
NOC from respondent No.6 nor did it reject or impose conditions on
development permission on the basis of proposed revision in policy.
37. It is submitted by learned senior counsel that the tenants of
the building in existence, prior to the demolition of the said building,
have already vacated. The said building was thereafter demolished.
The petitioners have acted upon the conditions in various permissions
and received thereafter commenced construction. The construction
has already been carried out upto 10th floor. The notice to stop work
had been issued by respondent No.2 at the instance of respondent
No.6 due to security issue. He submitted that respondent No.6 is a
Company registered under the Companies Act, 1956. The majority
shareholding of respondent No.6 is held by the Government of India.
wp113-19.doc
Respondent No.6 is also carrying out its private work and cannot be
considered as Defence Establishment under the provisions of Work of
Defence Act.
38. It is submitted that in respect to the protection of defence
land, there is a Central Act, a legislation occupying the field viz. Work
of Defence Act, 1903. If any protection is required in respect of any
Defence Establishment, such restriction can be imposed on
construction in the vicinity of Defence Establishments, by issuing a
notification under the provisions of the Works of Defence Act. He
submitted that no notification has been issued in respect of
respondent No.6.
39. It is submitted that unless an action is taken in accordance
with the provisions of the Works of Defence Act, such action would be
ultra vires the Constitution and the Works of Defence Act. He
submitted that if a law requires a particular thing to be done in a
particular manner, it has to be done in the same manner or not at all.
Consequently, an action required under the said enactment in a
particular manner, cannot be substituted by an executive instruction
or circular. The same are, otherwise, violative of Articles 19(1)(g) and
19(6) and 300A of the Constitution of India. He submitted that the
shares of respondent No.6 are listed on the Stock Exchange and
even if the Government of India is a majority shareholder, that does
wp113-19.doc
not make respondent No.6 to be a Defence Establishment. It is
submitted that for respondent no.6 to be a defence establishment, a
requisite notification under WOD Act was required to be issued.
40. It is submitted by the learned senior counsel that reliance
placed by the respondents on the notification dated 28/07/1987 under
the Official Secrets Act is completely misplaced. There is no power
for imposition of any kind of restriction on the construction activities in
the vicinity of the undertaking of respondent No.6. The said
notification has not been published in the gazette and is not in
accordance with the Official Secrets Act and is thus ultra vires the
same.
41. It is submitted by the learned senior counsel that the
impugned notices, the stop work notices and the circulars are in the
nature of executive instructions. Articles 19(1)(g) and 19(6) of the
Constitution do not permit the executive instructions to take the place
of law. He submitted that the right to an immoveable property has a
bundle of rights within it. Right to develop, right to construct and right
to exploit the full potential, be it a development and construction, are
part of the bundle of purported rights in a property.
42. It is submitted that any deprivation or interference with, or
restriction or imposition of any fetter on any of the rights mentioned
therein, in the absence of law, would be violative of Article 300A of
wp113-19.doc
the Constitution of India. He submitted that the rights of the
petitioners to property are interfered with, impacted and sought to be
taken away by the respondents. It is submitted by learned senior
counsel that the petitioners have already obtained all prior sanctions
and permissions as required by respondent No.1 and on the basis of
which, the petitioners were permitted to commence construction and
have constructed 10 floors.
43. It is submitted by the learned senior counsel for the
petitioners that the action on the part of the Municipal Commissioner
are clearly discriminatory. The respondents have already permitted a
tall hospital building to come up, consisting of Ground plus 17 floors,
with a height of 69.95 meters whereas, the construction of the
petitioners is comprising of Ground plus 19 floors with a height of
59.50 meters only. The respondents have, therefore, treated the
petitioners differently and thus, the action on the part of the
respondents is discriminatory and violative of Article 14 of the
Constitution of India.
44. It is submitted that the respondents have not taken any
defence under the provisions of the Works of Defence Act. The
building constructed by the petitioners is not on the front side.
Learned senior counsel placed reliance on the definition of the term
'munitions of war' under Section 2(5) and the term 'prohibited place'
wp113-19.doc
under Section 2(8) of the Official Secrets Act. He submitted that the
stop work notice could not have been issued by the Municipal
Corporation under Section 2(8)(c) and (d) of the Official Secrets Act.
45. Learned senior counsel for the petitioners placed reliance
on the Guidelines dated 18/05/2011 issued by the Ministry of Defence
recommending amendment to the provisions of Works of Defence
Act. He submitted that there is no amendment carried out by the
Central Government in the Works of Defence Act, as per the said
recommendation, till date.
46. It is submitted that so far as the Guidelines dated
18/03/2015 are concerned, the Developer is not required to obtain
any permission, if the permission is already granted prior to
18/05/2011. Respondent No.6 is not identified either under part 1(a)
or part 1(b) of the Circular. The respondents have not produced any
notified gazette, till date. He submitted that even if such notification is
in existence, there is no power to impose any restriction or bar in
carrying out construction in the vicinity.
47. It is submitted that the plot of the petitioners is outside the
boundary indicated by the respondents. Learned senior counsel for
the petitioners placed reliance on the definition of the term 'land'
under Section 2(a), definition of the term 'person interested' under
Section 2(b), definition of the term 'Central Officer Commanding the
wp113-19.doc
District' under Section 2(d) and definition of the term 'Commanding
Officer' under Section 2(e) of the Works of Defence Act.
48. Learned senior counsel for the petitioners placed reliance
on Sections 6 and 7 of the Works of Defence Act and submitted that
even if any further powers are required to be exercised by the Ministry
of Defence, the same can be done only after publication. If any right
of a party is interfered, such party becomes entitled to claim
compensation. No notification under Section 3(2) of the Works of
Defence Act is issued by the Central Government in respect of any
land within the vicinity of respondent No.6. He submitted that the
Local Military Authority is nominated by the Central Government only
on 09/08/2017.
49. In his alternate argument, he submitted that the Circulars
of 2017, 2018 and 2019 are not applicable to respondent No.6 till
09/08/2017 and consequently, can be applied only with prospective
effect. The petitioners were already granted IOD on 27/05/2015 and
the Commencement Certificate on 04/08/2015.
50. The respondents, in the absence of any provision in the
Development Plan or Development Control Regulation, cannot restrict
the construction of the petitioners on the basis of the letter of
respondent No.6. The Central Government thus could not have
issued any stop work notice. He submitted that no executive
wp113-19.doc
instructions could be issued under Article 73 or 162 of the
Constitution.
51. It is submitted that the right to property of a citizen of India
is a valuable Constitutional right under Article 300A of the Constitution
though is not a fundamental right. Under Article 300A of the
Constitution, no person can be deprived of property save and except
expressly provided in the said Article.
52. Learned senior counsel relied upon the following
judgments in support of the aforesaid contentions:
(a) F.B. Taraporawala & Ors. v. Bayer India Limited
& Ors. (1996) 6 SCC 58
(b) B.K. Ravichandra & Ors. v. Union of India & Ors.
2020 SCC Online SC 950
(c) Canara Bank v. N.G. Subbaraya Setty & Anr.
(2018) 16 SCC 228
53. Mr. Anil Singh, learned A.S.G. for respondent No.2
submitted that respondent No.6 is a Defence Establishment / Local
Military Authority and its protection is in national interest. Respondent
No.6 is a refinery. Security of Defence Establishment is a paramount
consideration. The Defence Authority is an expert to decide the
security of the nation. There are terrorist attacks increasing day by
day. Merely because inconvenience may be caused to the
wp113-19.doc
citizen/individual developer, such inconvenience cannot be
considered as against the national interest. The provisions of the
MRTP Act and DCR permit the Authorities to consider the security
aspect. The preference has to be given to the public interest as
against the private interest.
54. It is submitted by the learned A.S.G. that admittedly there
is no challenge to the provisions of MRTP Act or DCR, 1991 in this
petition. The Planning Authority is obligated to consider the 'security'
and 'public interest' under the provisions of the MRTP Act and DC
Regulations. It is the mandatory duty of the Planning Authority to
insist for NOC of Defence Establishment, while considering proposal
for building permissions.
55. The impugned notifications, guidelines and
communications are issued to protect the national interest and
security of the Defence Establishment and do not violate any
fundamental rights of the petitioners or any rights under Article 300A
of the Constitution. The NOC required to be obtained by the
petitioners from respondent No.2 before carrying out construction is
the requirement of law and the petitioners cannot seek to develop a
property without complying with the law.
56. It is submitted that respondent No.6 has always been
treated by respondent No.2 as a Local Military Authority. Respondent
wp113-19.doc
No.6 has expressed and clarified in various correspondence that the
construction of high-rise buildings close to the Defence Public Sector
Undertakings will adversely impact the effective surveillance and
security of these installations, in view of the reports of the security
agencies. Respondent No.6 has already been declared as a
'prohibited place' under Notification dated 28/07/1987 issued by
Government of Maharashtra under the provisions of Official Secrets
Act, 1923.
57. It is submitted that owing to the threat faced by respondent
No.6 and the nature of work carried out by it, it is imperative to protect
the premises of respondent No.6 in public / national interest. Any
construction taking place in the vicinity of respondent No.6 may pose
a threat to the security of respondent No.6. It would be necessary for
respondent No.1 to seek an NOC from respondent No.6.
58. It is submitted that respondent No.6 has already objected
to the construction put up by the petitioners on 12/12/2017.
Respondent No.1 has failed in its duty in securing NOC from
respondent No.6 prior to approving the plans of the petitioners.
59. It is submitted that the Ministry of Defence has already
clarified by its letter dated 17/02/2020 in response to the letter dated
13/02/2020 from respondent No.6 that respondent No.6 is a Local
Military Authority. The impugned guidelines are thus applicable to
wp113-19.doc
respondent No.6, being a Local Military Authority. The internal note
dated 09/08/2017 clarifies the same. He submitted that the Local
Military Authority other than the 342 Army Establishments mentioned
in guideline dated 21/10/2016 are covered by the impugned
guidelines.
60. Learned A.S.G. placed reliance on Section 46 of the
MRTP Act and Regulation 16(n) of the Development Control
Regulations, 1991. He submitted that Section 46 of the MRTP Act
assumes that the Planning Authority, while considering an application
for permission shall have due regard to the provisions of any draft or
final plan. It does not prescribe that the Planning Authority must only
consider the draft or final plan and nothing else. He submits that
Regulation 16(n) of the Development Control Regulations 1991
prescribes that the land shall not be permitted to be developed, if the
same is against public interest.
61. It is submitted by learned A.S.G. that there are no specific
grounds raised impugning or asserting a challenge to each guideline
separately or even addressing the clauses within the guidelines and
as to how they affect the fundamental rights of the petitioners. The
petitioners have not pointed out any specific case of violation in the
entire petition. He submitted that since the petitioners have not
challenged the provisions of the MRTP Act and the DCR, 1991, NOC
wp113-19.doc
of the Defence Establishment is necessary. It is the mandatory duty
of the Planning Authority to insist for NOC of the Defence
Establishment while considering proposal for building permission. He
submitted that the challenge to the guidelines is academic since NOC
is the requirement of the law and the petitioners cannot seek to
develop a property, without complying with the law.
62. It is submitted that the impugned guidelines dated
18/05/2011, 18/03/2015, 17/11/2015 and 21/10/2016 are mere
guidelines to guide the Defence Establishment to deal with the issue
of NOC, when they are approached for the same by the Planning
Authority. No fundamental rights of the petitioners under Article 19(1)
(g) of the Constitution have been violated. The executive
circulars/instructions can be issued to protect the national
interest/security interest of India.
63. It is submitted that the purpose and object of the impugned
guidelines dated 18/05/2011 is to strike a balance between the
security concerns of the forces and the right of the public to undertake
the construction activities on their land. The restriction to construct on
the land is placed primarily by the Planning Laws i.e. the MRTP Act
and Development Control Regulations.
64. It is submitted by learned A.S.G. that the impugned
notifications/guidelines and communications are issued to restrict the
wp113-19.doc
construction of the building, which is higher than four floors. There is
no bar on construction activity, per se. The restriction is on the height
of the structure. No fundamental rights of the petitioners are being
violated as sought to be canvassed by the petitioners.
65. It is submitted that Article 19(1)(g) of the Constitution
guarantees to a citizen the right to practice any profession or to carry
on any occupation, trade or business, which is subject to Article 19(6)
of the Constitution. Clause (6) of Article 19(1) is intended to strike a
balance between individual freedom and public interest.
66. It is submitted that reasonable restrictions are imposed by
the impugned guidelines in respect of construction activity in the
vicinity of Defence Establishment, including respondent No.6 in order
to protect the national interest of India. The petitioners thus cannot
contend that there is any violation of fundamental rights under Article
19(1)(g) or 19(6) of the Constitution of India. Learned A.S.G placed
reliance on Articles 53, 73 and 77 and 246 and 300A of the
Constitution.
67. It is submitted by learned A.S.G. that the Works of
Defence Act, 1903 is not the sole repository for regulating
construction activity in the vicinity of Defence Establishment. The
said Act is enacted to provide for imposing restrictions upon the use
and enjoyment of land in the vicinity of works of defence in order that
wp113-19.doc
such land may be kept free from buildings and other obstructions and
for determining the amount of compensation to be made on account
of such imposition. He relied upon Section 3 of the Works of Defence
Act and submitted that the declaration under the said provision is one
of the legislations, under which restrictions can be imposed 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. He submitted that the absence of the declaration under
Section 3 of the Works of Defence Act does not disentitle respondent
No.6 from insisting that their NOC must be obtained for any
construction activity which poses a security threat to India or its
Defence Establishments.
68. It is submitted that the action of respondent No.2 insisting
upon an NOC from respondent No.6 and issuance of communications
impugned in the present petition are in consonance with Section 46 of
the MRTP Act and Regulation 16(n) of the Development Control
Regulations and the same are not ultra vires the Constitution of India.
It is submitted that it is the mandatory duty of the Municipal
Corporation to seek NOC from respondent No.6 in view of the
security threat faced by respondent No.6.
69. It is submitted that respondent No.1 has failed in its duty in
wp113-19.doc
seeking an NOC from respondent No.6 prior to approving the plans of
the petitioners. In any event, such failure ought not to enure to the
benefit of the petitioners and jeopardize the security interest of India.
He also placed reliance on the judgment of this Court in the case of
Union of India through the Indian Army v. State of Maharashtra
through the Urban Development Department & Ors. ("Adarsh
Case") 2016 SCC OnLine Bom 2570.
70. It is submitted that this Court while exercising writ
jurisdiction, cannot be expected to adjudicate the issue of security
interest. Safety and security of respondent No.6 is a paramount
importance and is an issue of safety and security of the nation. The
Defence Establishment, such as respondent No.6, is an expert in the
field of safety and security of the nation and its opinion as to the
threat on the safety and security of the installation cannot be
challenged except on the grounds of manifest arbitrariness. The
petitioners have not produced any material nor have raised any such
ground in the writ petition.
71. Learned A.S.G. invited our attention to the internal note
dated 09/08/2017 and submitted that even in the internal note
annexed by the petitioners in the writ petition, it is clearly stated that
respondent No.6 Mazagaon Dock Limited, Mumbai, is a Defence
Public Sector Undertaking dealing with construction of warships and
wp113-19.doc
submarines for Indian Navy.
72. It is submitted by learned A.S.G. that under the provisions
of Official Secrets Act, 1923, there is no power for imposition of any
kind of restriction on the construction activities in the vicinity of the
undertaking of respondent No.6.
73. Respondent No.6 is India's leading Defence Public Sector
Undertaking Shipyard under the aegis of respondent No.2. After
respondent No.2 has taken over respondent No.6 in 1960,
respondent No.6 has become the leading manufacturer of
submarines and warships for Indian Navy. It is submitted by learned
A.S.G. that the functions of respondent No.6 includes and/or not
limited to (a) construction of stealth warships for Indian Navy and
Coast Guard, (b) construction of warships for Indian Navy and (c)
construction of submarines for Indian Navy. These activities are
undertaken by respondent No.6 by laying out sketches and model of
the said warship/submarines. Such activities are highly secretive and
sensitive to the security/sovereignty and integrity of India.
Respondent No.3 has accordingly exercised powers under Section
2(8)(c) and (d) of the Official Secrets Act and notified respondent
No.6 as a prohibited place.
74. It is submitted that considering the nature of work carried
out by respondent No.6, it is imperative to ensure that there is no
wp113-19.doc
recording, photography, publishing of any sketch/model or note of any
warship/submarines, which may be more than useful to any enemy
and disclosure likely to affect the sovereignty and integrity of India.
The notification dated 28/07/1987 thus came to be issued.
75. It is submitted that since the work of respondent No.6
bears national security implications, the construction proposed by the
petitioners cannot be permitted at the cost of national security. The
construction proposed by the petitioners is likely to be misused for
spying over the property of respondent No.6, which is an offence
under the provisions of the Official Secrets Act. He submitted that to
protect the national security interest, it is necessary that the
construction, which can aid spying over a prohibited place, cannot be
permitted.
76. Insofar as the submission of learned senior counsel for the
petitioners that the action on the part of the Municipal Corporation and
respondent No.6 in opposing the construction carried out by the
petitioners is discriminatory in nature, is concerned, learned A.S.G.
submitted that there is no concept of negative equality. Security
interest is required to be considered on a case to case basis. It is
submitted that the power under Article 226 of the Constitution of
India is discretionary and ought to be exercised only in furtherance of
interests of justice and not merely on the making out of a legal point.
wp113-19.doc
77. It is submitted by learned A.S.G. that the impugned
Guidelines, 2011 are in force since 18/05/2011. The permission was
obtained by the petitioners for carrying out construction in 2013. This
Court in the case of Adarsh Case (supra) had rejected the argument
of the petitioners that the construction was already started prior to
issuance of the Guidelines.
78. It is submitted by learned A.S.G. that merely because
some permission was granted to run a hospital in the same vicinity,
the same cannot be a ground to grant permission to the petitioners.
The building plan was submitted by the said hospital in the year 2019.
He submits that the security threats are to be considered day-to-day
and those previous permissions granted by the Municipal Corporation
or by respondent No.2 cannot be the basis for grant of permission in
every case. It is submitted that the enemy of this country target
certain establishments to destroy the peace. Respondent No.2 is not
against a particular builder.
79. Mr. Singh, learned A.S.G. submitted that the petitioners
had made a representation to respondent No.6 dated 30/12/2019,
which was forwarded by respondent No.6 to respondent No.3.
Respondent No.2 has already rejected the said representation made
by the petitioners, vide letter dated 19/03/2020. The petitioners have
not challenged the said rejection of the representation by letter dated
wp113-19.doc
19/03/2020. There is gross delay on the part of the petitioners in filing
this petition. The writ petition is liable to be dismissed on this ground
also. He relied upon the definition of 'Naval Establishment' under
Section 3(12)(A) of the Navy Act.
80. Learned A.S.G. relied upon the following judgments and
submitted that each and every grounds raised by the petitioners are
already negatived by this Court or the Supreme Court with identical
facts in hand. The submissions made by the petitioners are contrary
to the principles laid down by this Court and the Supreme Court in
those judgments.
(a) TCI Industries Limited v. Municipal Corporation
of Greater Bombay 2011 SCC OnLine Bom 1671
(b) Hindustan Petroleum Corporation Limited v.
Municipal Corporation of Greater Mumbai 2012
SCC OnLine Bom 560
(c) S.S.V. Developers & Ors. v. Union of India & Ors.
2013 SCC OnLine Bom 1602
(d) The Union of India v. State of Maharashtra &
Ors. (Adarsh Case) 2016 SCC OnLine Bom 2570
(e) M/s. Sunbeam Enterprises v. The Municipal
Corporation of Greater Mumbai & Ors Judgment
of Bombay High Court dated 21/06/2019 in Writ
Petition No.229 of 2018
(f) Amrit Banaspati Co. Ltd. v. Union of India & Ors.
AIR 1995 SC 1340
(g) Akbar Travel of India (Pvt.) Ltd. v. Union of India
wp113-19.doc
& Ors. Judgment of Bombay High Court dated
10/06/2009 in Writ Petition (L) 656 OF 2009
(h) Narangs International Hotels Pvt. Ltd. v. Union
of India & Ors. 2011 SCC OnLine Bom 727
(i) Oswal Agro Mills Limited v. Hindustan
Petroleum Corpn. Ltd. & Ors. (2014) 2 SCC 491
(j) Ravindra Mutenja & Ors. v. Bhavan Corporation
& Ors. 2003 SCC OnLine Bom 241 and
(k) Supertech Ltd. v. Emerald Court Owner Resident
Welfare Association & Ors. 2021) 10 SCC 1
81. Learned A.S.G. distinguished the judgments cited by Mr.
Samdani, learned senior counsel for the petitioners. He also
tendered additional note dealing with various contentions raised by
the petitioners. He relied upon Section 3 of the Navy Act.
82. Mr. Naphade learned counsel for respondent No.6 adopted
the submissions made by Mr. Singh, learned A.S.G. for respondent
No.2 and made additional submissions. It is submitted by learned
counsel that respondent No.6 is a Defence Public Sector Undertaking
and a leading manufacturer of warships and submarines for the
Indian Navy. The activities of respondent No.6 are highly secretive
and sensitive to the security and sovereignty of the country. The
premises of respondent No.6 are already declared as prohibited place
vide Notification dated 28/07/1987. The Indian Navy under the aegis
of the Ministry of Defence carries out the construction of stealth
warships and submarines from the premises of respondent No.6. Any
wp113-19.doc
recording, viewing and or noting of these activities has the potential of
being highly prejudicial to the interest of the nation.
83. It is submitted by learned counsel that in this case, the
building of the petitioners is about 92.5 meters away from the
premises of respondent No.6. Respondent No.1 thus should have
consulted respondent No.6 before hand. The Ministry of Defence by
letters dated 24/01/2018, 08/02/2018 and 23/02/2018 had directed
that NOC for redevelopment of cessed buildings near the premises of
respondent No.6 should be obtained from respondent No.6.
Respondent No.6 had raised similar concerns in respect of another
project.
84. Learned counsel for respondent No.6 placed reliance on
the order in the case of Saeed Shaikh v. MHADA, Order dated
14/09/2012 in Writ Petition No.1000 of 2012whereby this Court
directed that before the plans were sanctioned by the Municipal
Corporation, a prior notice be given to the competent authority of
respondent No.6, so as to place objections, if any. He submitted that
the Municipal Corporation, in this case, has not given any prior notice
to respondent No.6 while sanctioning the plan submitted by the
petitioners for the said project. He submitted that the plans submitted
by the Municipal Corporation are contrary to law laid down by this
Court in Saeed Shaikh (supra).
wp113-19.doc
85. Mr. Naphade, learned counsel for respondent No.6 placed
reliance on the judgments, which were relied upon by learned A.S.G.
and submitted brief written submissions. He also placed reliance on
the judgment of the Supreme Court in Rai Sahib Ram Jawaya Kapur
& Ors. v. State of Punjab 1955) 2 SCR 225 and M/s. Kasturi Lal
Lakshmi Reddy v. State of Jammu & Kashmir & Anr., 1980) 4
SCC 1 in particular paragraph No.14.
86. Learned counsel for respondent No.6 relied upon Articles
73, 256 and 257 of the Constitution and submitted that executive
instructions can be issued where power to issue notification exists.
He submitted that though no notification under Section 3 of the Works
of Defence Act is issued, Guidelines can still be issued by the
authorities. He submitted that the offence of spying is quite possible
in the facts of this case, if the petitioners are allowed to carry out the
balance constructions or is even allowed to occupy the construction
already carried out so far. The impugned guidelines are already in
existence from 2011 and merely because no notification under the
provisions of the Works of Defence Act is issued, that does not mean
that Guidelines, which are in the nature of executive instructions
cannot be issued.
87. It is submitted by learned senior counsel that respondent
No.6 had issued objections when the building was constructed upto
wp113-19.doc
7th floor. The Municipal Corporation, however, issued stop work
notice after 19th floor was constructed. He submitted that in
pursuance of the interim order passed by this Court on 04/02/2019, a
report submitted by respondent No.2 has been kept in a sealed cover.
88. Ms. Kantharia, learned counsel for the Municipal
Corporation adopts the submissions made by learned A.S.G. and
relied upon the averments made by the Municipal Corporation.
89. Mr. Samdani, learned senior counsel for the petitioners in
rejoinder to the arguments advanced by Mr. Naphade, learned
counsel for respondent No.6 submitted that the Official Secrets Act
does not contain any power to delegate the power conferred on the
authorities under the said Act. Neither any notification is published nor
gazetted under the provisions of Works of Defence Act.
90. The structures of the petitioners are on the rear side and
not affected by the notification, though not published and gazetted.
Article 19(1)(g) of the Constitution requires enactment of law and not
issuance of executive instructions. Similarly, Article 300A of the
Constitution also requires enactment of law and not executive
instructions. Learned senior counsel tendered additional note for
consideration of this Court.
91. It is submitted that there is an enactment under which the
expression 'Defence Establishment' is defined. The expression
wp113-19.doc
'Defence Establishment' is mentioned at several places in the Works
of Defence Act. He relied upon Section 3 of the Works of Defence
Act and submitted that if there is a notification issued in respect of the
Defence Property or the property intended to be used for Defence or
intended to be acquired for Defence, it can be defined as 'Defence
Establishment' by a notification. Since there is no notification issued
under Section 3 of the Works of Defence Act, respondent No.6 cannot
be termed as 'Defence Establishment'. He submitted that under the
provisions of the Official Secrets Act, 'Defence Establishment', is not
defined, but it is 'prohibited place' which is defined. It is submitted
that even if a 'Defence Establishment' is covered by issuance of a
notification under the Official Secrets Act, there will still not be any
restriction on construction in the vicinity, unless a notification under
Section 3 read with Sections 6 and 7 of the Works of Defence Act, is
issued.
92. It is submitted that even as late as on 13/02/2020,
respondent No.6 was clear that in this case, there was no Local
Military Establishment and that the guidelines do not apply. He
submitted that respondent No.2 by referring to the internal note dated
07/08/2017 stated that respondent No.6 has its own premises at
Mazgaon and it is a Public Sector Undertaking and is a Local Military
Establishment for its premises. There was no categorical assertion
wp113-19.doc
that respondent No.6 is a Defence Establishment.
93. It is submitted by learned senior counsel that respondent
No.6 is not a 'Defence Establishment' also for the reason that no
buffer zone was provided as was required under the provisions of
draft DCPR 2034, then circulated.
94. It is submitted by learned senior counsel that right to
property does not mean only a moveable property, which has bundle
of rights. Even if a fraction of right is deprived, it violates the citizen's
right to property under Article 300A of the Constitution. By virtue of
respondent No.2 not allowing full development potential to the
petitioners' property, it amounted to deprivation of right to property,
without authority of law. Article 300A of the Constitution is a
Constitutional right and is now recognized as a human right under
Article 21 of the Constitution, which is a part of the fundamental right.
95. It is submitted by the learned senior counsel for the
petitioners that the ground of security threat and perception raised by
respondent Nos.2 and 6 is required to be stated to be rejected. If an
action of the Union of India is under the authority of law, it can be
defended on the ground of security threat. In this case, there is no
authority of law nor any authorities have exercised under law or in
accordance with existing laws. He submitted that, since in the instant
case, the authority exercisable under law viz. Works of Defence Act
wp113-19.doc
has not exercised under the law and respondent No.6 is notified as
'Defence Establishment', this Court is competent to go into the matter.
96. It is submitted that the property of the petitioners is not
under any reservation in the development plan. The Planning
Authority is not bound to acquire the said property.
97. It is submitted that though under Regulation 16 of the DCR
1991, public health and safety in the context of construction was
covered, the security of the Defence Establishment was never
covered. He submitted that in any event, "public interest" in relation
to Regulation 16(n) is discontinued under the DCPR 2034. It is
submitted that putting an embargo or restriction by issuing a stop
work notice is equal to acquiring the petitioners' property or the
benefits thereto, which is contrary to Article 300A and Article 19(1)(g)
and Article 19(6) of the Constitution of India and even contrary to the
provisions of the MRTP Act.
98. Learned senior counsel for the petitioners submitted a note
to distinguish the judgments relied upon by Mr. Singh, learned A.S.G.
on facts of this case.
99. Learned senior counsel for the petitioners relied upon
additional judgments along with the said additional note as under:
(a) Babu Verghese & Ors. v. Bar Council of Kerala &
Ors. (1993) 3 SCC 422,
wp113-19.doc
(b) S.N. Rao & Ors. v. State of Maharashtra, (1988) 1
SCC 586,
(c) Bishambhar Dayal Chandra Mohan & Ors. v.
State of Uttar Pradesh (1982) 1 SCC 39,
(d) Hindustan Times & Ors. v. State of U.P. & Anr.
(2003) 1 SCC 591,
(e) State of W.B. & Ors. vs. Sujit Kumar Rana (2004) 4
SCC 129,
(f) Hari Krishna Mandir Trust v. State Maharashtra &
Anr. (2020) 9 SCC 356,
(g) State of Bihar & Ors. v. Project Unchcha Vidya,
Sikshak Sangh & Ors. (2006) 2 SCC 545,
(h) P.H. Paul Manoj Pandian v. P. Veldurai (2011) 5
SCC 214,
(i) Association of International Schools & Principals
Foundation & Anr. v. State of Maharashtra & Ors.
(2010) 6 Mh.L.J. 816,
(j) Runwal Constructions v. Union of India & Ors.
(2021) SCC OnLine Bom. 668,
(k) Manohar Lal Sharma v. Union of India & Ors.
wp113-19.doc
(2021) SCC OnLine SC 985,
(l) Sukh Datta Ratra & Anr. v. State of Himachal
Pradesh & Ors. (2022) 7 SCC 508,
(m) Pharmacy Council of India v. Rajeev College of
Pharmacy & Ors. (2022) SCC OnLine 1224,
(n) Satwaratna Co-Operative Housing Society
Limited & Anr. v. Bharat Petroleum Corporation
Ltd. & Ors. (Special Leave Petition (C) No.3185 of
2022, dated 26th April, 2022 and
(o) Bharat Petroleum Corporation Ltd. v. Municipal
Corporation of Gr. Mumbai & Ors. (Writ Petition
no.1515 of 2017, dated 25th April, 2019.
100. Learned senior counsel for the petitioners placed reliance
on the judgments of the Supreme Court in the case of Satwaratna
Co-operative Housing Society Limited & Anr. v. Bharat
Petroleum Corporation Limited & Ors. Judgment dated 26/04/2022
in Civil Appeal No.3185 of 2022 and submitted that the judgment of
this Court in the case of Bharat Petroleum Corporation Limited v.
Municipal Corporation of Greater Mumbai & Ors., Judgment dated
25/04/2019 in Writ Petition No.1515 of 2017which has been referred
to and relied upon in the subsequent judgments of this Court, which
wp113-19.doc
are pressed into service by the respondents, has been set aside by
the Supreme Court in the said judgment in Civil Appeal No.3185 of
2022.
101. Mr. Singh, learned A.S.G. distinguished the said judgment
of the Supreme Court in Satwaratna Co-op. Housing Society
Limited (supra) on the ground that the facts in the said matter before
the Supreme Court were totally different.
REASONS AND CONCLUSIONS :-
102. We shall first deal with the issue raised by the learned
senior counsel for the petitioners that the impugned notices are
without authority of law and de hors the development plan and the
provisions of the MRTP Act. It is vehemently urged by the learned
senior counsel for the petitioners that Section 46 of the MRTP does
not impose any restriction on the Development Control Regulation or
on the Development Plan.
103. The aforesaid issue raised by the petitioners has been
dealt with by a Division Bench of this Court at length in case of TCI
Industries Limited (supra). This Court held that under Section 46
of the MRTP Act, the Planning Authority is required to examine the
aspect of granting development permission in an appropriate manner
and by considering the relevant aspects. While granting development
permission, one of the things which the Planning Authority is required
wp113-19.doc
to consider is to the provisions of the draft or final plan sanctioned
under the Act meaning thereby that if any provision in respect of
anything in the draft or final plan published by means of notice or
same is sanctioned under the Act, the Planning Authority cannot
ignore the same and it has to be taken into consideration.
104. This Court held in the said judgment that it is impossible to
accept the say of the petitioner therein that the Planning Authority
cannot consider any other thing except giving due regard to the
provisions of the draft or final plan as mentioned in Section 46 of the
MRTP Act. Section 46 of the MRTP Act cannot be given such a
restricted meaning and it cannot be said that under Section 46, the
Planning Authority cannot consider any other aspect such as security
etc.
105. After rejecting the identical submission made by the
petitioners in that case, this Court held that it is the inherent duty of
the planning authority to apply its mind before giving development
permission and has to keep in mind the pros and cons of such
development permission. This Court gave an example in paragraph
18 of the said judgment that if there is a fire brigade station or
refinery or any sensitive object located at the place nearby the area
for which development permission is sought, the planning authority
cannot shut its eyes and blindly give sanction only on the basis that,
wp113-19.doc
except what is provided in Section 46, they are not required to call for
any other information. Per contra, it is the duty of the planning
authority to call for such information otherwise they will be failing in
their duty. This Court rejected the contention of the petitioners that
the planning authority is not empowered to call for any other
information and to straightaway grant permission and is not required
to call for any other information except the one provided under
Section 46 of the MRTP Act or under the D.C. Regulations.
106. This Court in the said judgment thereafter held that no
fault can be found with the Corporation in insisting for NOC from the
Defence Department. This Court considered the D.C. Regulation 16
(n) and held that the Planning Authority may refuse to grant
permission for using the land if the proposed development is likely to
involve damage or to have a deleterious impact on or is against the
aesthetics or environment or ecology and / or
historical/architectural/aesthetical building and precincts or is not in
the public interest. This Court held that public interest has wide
connotation and if any particular development activity is found to be
not in public interest, in a given case, the development authority can
refuse such permission. The public interest has to be read
independently to the earlier part of the said Regulation i.e. ecology,
architectural aspects etc.
wp113-19.doc
107. This Court held that insistence on the part of the planning
authority for NOC from a particular department cannot be said to be
de hors the provisions of the Act and the Regulations. In our view,
the provisions of Section 46 of the MRTP Act has to be read with
Regulation 16(n) of the D.C. Regulations and not in isolation. The
submission of the learned senior counsel for the petitioners that the
impugned notices are beyond the powers or the jurisdiction of the
respondents or contrary to the provisions of Section 46 of the MRTP
Act is ex facie illegal and contrary to the Section 46 of the MRTP Act
read with Regulation 16(n) of the D.C. Regulations and is
accordingly rejected. It is also contrary to the principles of law laid
down by the Supreme Court in case of TCI Industries Limited
(supra).
108. We shall now consider the submission of the learned
senior counsel for the petitioners that since no notification under
Section 3 of the Works of Defence Act, 1903 (for short 'WODA') has
been issued by the Central Government regarding protection in
respect of any defence establishment, the action initiated by the
respondents whether is ultra virus the Constitution of India and
WODA or action is violative of the Articles 19(1)(g), 19(6) and 300A
of the Constitution of India.
109. It is also vehemently urged by the learned senior counsel
wp113-19.doc
for the petitioners that if a particular thing has to be done in a
particular manner prescribed under the Act, such action has to be
conducted only in such a manner as prescribed and no other
manner. This Court in case of TCI Industries Limited (supra)
has dealt with this issue also at length and has held that simply
because no declaration under Section 3 of the WODA is issued, it
cannot be said that the defence was not entitled to insist for their
NOC. It is held that in Section 3 of the Act, it has no relevancy so far
as insistence of the planning authority regarding no objection from the
Defence Department is concerned. In a given case, even if there is no
notification under Section 3 of the Defence Act, the planning authority
can always insist for NOC from the Defence Department, if the
property is located just adjacent to the premises of the petitioner. The
planning authority nowhere figures in the picture and the petition has
been filed against the planning authority against their insistence of
NOC from the Defence Department in so far as Section 3 of the
WODA is concerned.
110. This Court held that under Section 3 of the WODA, even
the Central Government can acquire the property for national interest.
In that case, the defence had not thought it fit to issue such a
declaration but has tried to assert its right under the provisions of the
MRTP Act and the Development Control Regulations by which they
wp113-19.doc
have not agreed to give NOC in view of the security reasons.
111. In the facts of this case also, no notification under Section
3 of the WODA was issued by the Central Government in so far as
the property in the vicinity of the property of the respondent no.6 is
concerned and invoked the provisions of the MRTP Act and D.C.
Regulations and insisted for NOC of the respondents obtained by
the petitioners. We do not find any infirmity in the action taken by
the respondents in insisting its NOC or insistence on the part of the
Municipal Corporation to the petitioners to obtain NOC from the
respondents as contrary to Section 3 of the WODA or otherwise.
The security aspect can be considered while insistence for NOC from
the developers or from the owners for carrying out development in
nearby vicinity which would have the security threats irrespective of
whether the notification under Section 3 of the WODA has been
issued by the Central Government or not.
112. Similarly the submission of the learned senior counsel for
the petitioners that executive instructions could not have been issued
in absence of Notification under Section 3 of the WODA has no merit.
113. In our view, there is no substance in the submission of
the learned senior counsel for the petitioners that the circulars
issued by the Central Government are in the nature of executive
instructions or are in violation of Article 19(1)(g) or Article 19(6) of the
wp113-19.doc
Constitution of India. The petitioners have placed reliance on Articles
73 and 162 of the Constitution of India in support of the submission
that the circulars are in the nature of executive instruction. In our
view, the guidelines issued by the Central Government are to guide
the Defence establishment to deal with the issue of NOC when
approached by the Planning Authority. There is no violation of
fundamental rights of the petitioners.
114. The purpose and object is to strike the balance.
Restriction on construction activities is primarily part of the planning
laws i.e. MRTP Act and D.C. Regulation. The guidelines issued by
the Central Government are to restrict the construction activities
higher than 4th floor. A perusal of guidelines clearly indicates that
there is no complete bar on the construction. No fundamental rights
of the petitioners are thus violated. Be that as it may, the
fundamental rights claimed by the petitioners under Article 19(1) (g)
are subject to the restrictions under Article 19(6) of the Constitution of
India.
115. In so far as the submission of the learned senior counsel
for the petitioners that the impugned action is also in violation of
Article 300A of the Constitution of India is concerned, this aspect
has been dealt with by this Court in case of TCI Industries Limited
(supra) and has held that simply because, the construction activity is
wp113-19.doc
not permitted, it cannot be said that such action is violative of Article
300A of the Constitution of India. This Court held that under D.C.
Regulation 16, no development activity is permissible in certain
eventuality which includes public interest also. The validity of Section
16 has not been challenged by the petitioners. This Court accordingly
held that the Corporation had acted within its authority and it could not
be said that the petitioner is deprived of its property without any
authority of law. This Court also rejected the argument that the
security aspect which was pressed into service by Navy was a bogey
or imaginary one, as appropriate material has been placed on record
to buttress the stand of the Navy. There is thus no substance in this
submission made by the leaned senior counsel for the petitioners.
116. This Court in case of Hindustan Petroleum Corporation
Ltd. (HPCL) (supra) allowed a writ petition filed by HPCL impugning
the approval and permission granted by some of the authorities in
favour of the developers in the vicinity of the petitioner therein on
the ground of security reason. This Court, after adverting to various
judgments of the Supreme Court and this Court, held that even if the
relaxation in respect of the dimensions in case of hardship, can be
granted by the Municipal Commissioner, Municipal Commissioner is
prohibited from granting such relaxations if such relaxation affects
health, safety, fire safety, structural safety and public safety of the
wp113-19.doc
inhabitants of the building and the neighbourhood.
117. This Court categorically rejected the submission made by
the developers that the security aspect should not have been
considered at all by the Municipal Commissioner while sanctioning
the plan for development or while permitting the change of user under
any of the provisions of the D.C. Regulations or Mumbai Municipal
Corporation Act or Maharashtra Regional Town Planning Act. This
Court held that it is not only the power but also duty of the Municipal
Commissioner to consider the security aspect in public interest before
granting permission to develop any land as well as permitting change
of user from one zone to another zone. This Court considered the
Regulation 16(a), (e), (n) read with Regulation 64(b) read with section
46 of the M.R.T.P. Act while rejecting the submission of the
developers that there was no enabling provision under the present
D.C. Regulations or any other provisions to consider security and
health aspect before sanctioning the plan or before permitting change
of user by the Municipal Commissioner.
118. This Court after adverting to the judgment in case of TCI
Industries Limited (supra) held that the security and health aspect
in respect of public at large is a part of planning which the authorities
ought to have considered as a mandatory duty before sanctioning any
plan or permitting development or before permitting change of user. It
wp113-19.doc
is held that security as well as health aspects are crucial and are of
equal concern and are of fundamental necessity that the Planning
Authorities, the Government and the Public bodies, who are entrusted
with the task of deciding on the location of residential areas, must be
alive to these very real and basic necessities at all times. The Court
cannot permit any compromise or leniency on these issues by public
body or even individuals. This Court also rejected the arguments in
that matter that the action on the part of the petitioner therein was in
violation of Article 300A of the Constitution of India.
119. The Supreme Court has rejected the Special Leave
Petition (SLP) converted into civil appeal arising out of the said
judgment of this Court in case of Hindustan Petroleum Corporation
Ltd. (supra). The Supreme Court in case of Oswal Agro Mills
Limited (supra), after considering the provisions of Regulations 16
(a), (e) and (n) and various other provisions, held that this power is
coupled with the duty to give paramount importance to safety. In our
view, the submissions advanced by the learned senior counsel for
the petitioners are contrary to the principles of law laid down by the
Supreme Court in case of Oswal Agro Mills Limited (supra).
120. Division bench of this Court in case of S.S.V. Developers
and Ors. (supra) has followed the principles of law laid down by
this Court in case of TCI Industries Limited (supra). This Court
wp113-19.doc
rejected the submission of the petitioner therein that the guidelines
issued by the Government of India, Ministry of Defence dated 18 th
May 2011 for issuance of NOC for building construction are arbitrary
and did not provide for any safeguard. This Court held that those
guidelines were issued because the authorities found that the said
WODA which imposes restrictions upon use and enjoyment of the
land in the vicinity of defence establishment needs to be
comprehensively amended so as to take care of security concerns of
defence forces. The process of amendment has been put in motion
and may take some time. This Court held that the objective of these
instructions is to strike a balance, between the security concerns of
the defence forces and the right of public to undertake construction
activities on their land. The principles of law laid down by this Court
in the said judgment apply to the facts of this case.
121. In our view, the reliance placed by the petitioners on the
judgments of the Supreme Court in case of F.B. Taraporawala and
Ors. Vs. Bayer India Ltd. & Ors. (supra), in case of B.K.
Ravichandra & Ors. Vs. Union of India & Ors. (supra) and in
case of Canara Bank Vs. N.G. Subbaraya Setty & Anr. (supra) in
so far as the submission of the petitioners that the impugned notice
violates Article 300A of the Constitution of India has no merit. There
is no dispute about the proposition of law laid down by the Supreme
wp113-19.doc
Court in the above referred three judgments. However since there is
no violation of the Article 300A of the Constitution of India, those
judgments would not assist the case of the petitioners.
122. This Court in case of Union of India Vs. State of
Maharashtra and Ors. (Adarsh Co-operative Housing Society
Ltd. case) (supra) had considered the submissions of both the
parties including the submission of the Union of India that Adarsh
building poses a serious threat to the security of the Colaba Military
Station. This Court held that section 46 of the MRTP Act indicates
that while considering the application for permission, the planning
authority shall have due regard to the provisions of any draft or final
plan or proposals published by means of notice submitted or
sanctioned under the said Act.
123. This Court held that NOC of Defence Establishment is
necessary and in fact it is a mandatory duty of the planning Authority
to insist for NOC of Defence Establishment while considering
proposal for building permissions. This Court after adverting to the
judgments of this Court in case of TCI Industries Limited (supra), in
case of S.S.V. Developers and Ors. (supra), in case of Hindustan
Petroleum Corporation Ltd. (HPCL) (supra) and also the decision
of the Supreme Court in case of Oswal Agro Mills Limited (supra)
held that it is a mandatory duty of the planning Authority to insist for
wp113-19.doc
NOC of Defence Establishment. This Court held that simply because
no declaration under Section 3 of the Act is issued, it cannot be said
that the Defence Establishment was not entitled to insist for their
NOC. This Court further held that the provisions of WODA are not the
sole repository for prohibiting construction activities near Defence
Establishment and the Central Government can certainly invoke
Section 46 and DC Regulation 16.
124. In the said judgment, this Court also considered the
argument that there are several high-rise buildings in the near vicinity
which are totally overlooking into the MG & G Area and Army and
Navy area in Colaba and held that sensitive and vital installations
have to be safeguarded and protected from entry of persons who are
considered to be undesirable and a security risk. The writ court does
not possess any expertise in such cases. The Court cannot indulge in
guess work and hold that the security concern expressed by the
petitioner is not bonafide.
125. This Court held that in that case, security of CMS was
involved and thus this Court was not prepared to accept that for any
extraneous reason the present petition is instituted. This Court also
observed that the fact that the nature of threat to the security of
nation has undergone a vast change over the last decade with
terrorism emerging as a source of major and unconventional danger
wp113-19.doc
need not be over emphasized. The assessment of such threats has
heightened and the precautionary measures taken against them are
expanded. This Court also considered that in the year 2007, blast in
local train in Mumbai occurred. On 26.11.2008 a terror attack
occurred in Mumbai. Times have changed. People have changed.
Technology has advanced. New techniques are employed. Increase
of terrorism is an accepted international phenomenon.
126. This Court has also held in the said judgment that when
national interest is pitted against private interest, naturally national
interest must be protected as against the private interest. Technical
objections of delay and laches will not come in the way of the court in
exercising its extra ordinary jurisdiction under Article 226 which is
undoubtedly equitable jurisdiction and the Court will grant relief for
protecting national as well as public interest. This Court accordingly
held that petition could not be dismissed on the ground of gross delay
and laches. The principles of law laid down by the Supreme Court in
case of Union of India Vs. State of Maharashtra and Ors. (Adarsh
Co-operative Housing Society Ltd. case) (supra) are applicable to
the facts of this case.
127. This Court in case of M/s.Sunbeam Enterprises (supra)
considered the arguments similar to the arguments raised by the
petitioners in this case. This Court also considered the guidelines
wp113-19.doc
issued by the Central Government and held that in principle, this
Circular contemplates that 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 the 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 the State Government agencies or to
Municipal Authorities.
128. It is held that the Station Commander may refer the matter
immediately to its next higher authority in the chain of its command.
Then the Station Commander may convey its objection/views to the
local municipality or State Government agencies. This Court
considered the clarificatory Circulars dated 18th March, 2015 and
21st October, 2016 and also Regulation 16(e) and 16 (n) of the D.C.
Regulations in the said judgment and held that the security aspect is
a fundamental necessity and that the Planning Authority and the
public bodies who are entrusted with the task of deciding on the
location of residential areas, must be alive to at all times. The Court
cannot permit any compromise or leniency on these issues, especially
with reference to security by any of the public bodies or even
individuals. It is held that taking into consideration the aspect of
wp113-19.doc
security of our Naval Establishments and that of the public is a
mandatory duty of the MCGM (the Planning Authority) before
sanctioning any plan or permitting any development. The Municipal
Corporation has to apply its mind before giving development
permission and to keep in mind the pros and cons of such permission.
129. In so far as the powers of the writ Court to entertain the
writ petition in these circumstances is concerned, this Court held that
the issue of security raised by the Navy is merely a bogey or a matter
of substance, is not a question which can be decided under Article
226 of the Constitution of India. This aspect has to be left squarely to
the discretion of the Defence Authorities. It is not for this Court to
pronounce on the aforesaid aspect as it is completely in the realm of
the Defence Establishments. It is held by this Court that the issue of
security and safety of the nation is left best to the experts in that field
and it is neither the petitioners nor the Planning Authority and least of
all this Court that would give any finding in that regard.
130. We are not inclined to accept the submission made by the
learned senior counsel for the petitioners that the issue of security
threats raised by the respondents is a bogey or harsh. The issue of
security threats has to be considered by the authority of the Central
Government who is an expert in that field and to consider the
perception of security threats and seriousness thereof in the present
wp113-19.doc
day or in future and cannot be substituted by another view on such
aspect by this Court. The Writ Court does not possess any expertise
on the security threat perceived by the defence authority and if this
Court interferes with the security threats perceived by the authority
which security threats is considered in public interest, this Court
would exceed its jurisdiction by embarking on this exercise.
131. This Court in the said judgment also observed that this
Court cannot lose sight of the fact that indeed the times have
changed. Terrorism is on the rise and the State is no longer fighting a
known enemy. The nature of threat to the security of the nation has
undergone a vast change over the last decade with terrorism
emerging as source of major and unconventional danger. The
assessment of such threats has heightened and accordingly the
necessary precautionary measures have to be taken against them.
132. In so far as the issue raised by the petitioners that there
are other places in nearby vicinity for which permission or NOC by
the Defence Authority are granted prior to the buildings under
construction or after refusing the NOC in favour of the petitioners is
concerned, a similar argument was advanced by the petitioners in
case of M/s.Sunbeam Enterprises (supra). This Court held that the
said argument is wholly misconceived and misplaced. There was
nothing on record to show that when those buildings came up and
wp113-19.doc
when the development permissions were granted for the same. There
were security threats. This Court held that one must not lose sight of
the fact that it is quite possible that the threat perception at the time
when these permissions may have been granted by the Planning
Authority were quite different from the current state of affairs. No
reliance on these vague allegations would be placed.
133. In our view, even if some permissions are granted by the
Planning Authority in past for carrying out construction in the same
vicinity, the same cannot give any right to the petitioners. This Court
has held that even if the Planning Authority has granted some
permission in dereliction of their duty, the Navy cannot be penalized
and punished for the same. The petitioners cannot be allowed to take
advantage of any alleged wrong done by the Planning Authority in the
past. Two wrongs do not make a right and thus this Court under
Article 226 of the Constitution of India cannot issue a mandate or a
direction to perpetuate the wrong any further.
134. In our view Mr.Singh, learned Additional Solicitor General
is right in his submission that the aspect of security threats has to be
considered day to day considering the prevailing situation and not on
the basis that no untoward incident took place since the date of
granting permission carrying out development to the other building in
nearby vicinity. The respondents also have to consider the security
wp113-19.doc
aspect for future.
135. Thought the learned senior counsel for the petitioners
argued that the impugned action on the part of the respondents is
malafide, learned senior counsel could not demonstrate any
malafides on the part of the respondents in initiating action against
the petitioners. The allegations of malafides have to be clearly
pointed out in the pleadings and have to be demonstrated as
correct. The vague allegations of malafides, if any, cannot be looked
into by the Court to render a finding that the action on the part of the
respondents is malafide.
136. This Court in case of Narangs International Hotels
Private Limited (supra) has held that the examination of security
threat is an ongoing process. It is held that whether there is any real,
apparent and imminent danger emanating from the report can be
decided by the Intelligence Bureau. Threat perception falls in the
domain of Intelligence Bureau. The Court is unable to draw any
conclusions in that behalf.
137. The Supreme Court in case of Bharat Singh & Ors.
(supra) has held that when a point which is ostensibly a point of
law is required to be substantiated by facts, the party raising the
point, if he is the writ petitioner, must plead and prove such facts
by evidence which must appear from the writ petition and if he is
wp113-19.doc
the respondent from the counter affidavit. If the facts are not
pleaded or the evidence in support of such facts is not annexed to
the writ petition or to the counter-affidavit, as the case may be, the
Court will not entertain the point. There is a distinction between a
pleading under the Code of Civil Procedure and a writ petition or
a counter affidavit. While in a pleading, that is, a plaint or a
written statement, the facts and not evidence are required to be
pleaded, in a writ petition or in the counter affidavit not only the
facts but also the evidence in proof of such facts have to be pleaded
and annexed to it. We do not find any serious allegation of malafides
raised by the petitioners in the writ petition. The principles of law
laid down by the Supreme Court in case of Bharat Singh & Ors.
(supra) apply to the facts of this case.
138. In our view, the submission of the learned senior counsel
for the petitioners that the tenants of the petitioners had already
vacated the building and construction was carried out upto 10 th floor
after demolishing the building and thus the respondents could not
have insisted for NOC from the Defece Establishment is devoid of
merit. Though the guidelines were issued as far back as on 18 th May
2011, the petitioners without obtaining NOC from the Defence
Establishment obtained permission from the Municipal Corporation for
carrying out construction in the year 2013 without prior NOC from
wp113-19.doc
the Defence Establishment. This submission of the learned senior
counsel is already rejected by this Court in identical facts in case of
Adarsh Co-operative Housing Society Ltd. case (supra). There is
no merit in the submission of the learned senior counsel for the
petitioners that the respondent no.6 is not a Defence Establishment
under WODA and thus no objection from the respondent no.6 was
warranted.
139. We are inclined to accept the submission made by the
learned Additional Solicitor General and Mr. Naphade, learned
counsel for the respondent no.6 that the respondent no.2 is always
treated as respondent no.6 as local military authority. The
respondent no.6 has raised an objection about the construction of
building from time to time. The respondent no.6 has already been
declared as a 'Prohibited Place' under Notification dated 28 th July
1987 by the State Government. The respondent no.6 had objected to
the construction on 12th December 2017. The Ministry of Defence
vide communication dated 17th February 2020 has clarified that the
respondent no. 6 is a local military authority. In our view, the
impugned guidelines are thus applicable to the respondent no.6 and
the petitioners. The petitioners itself has placed reliance on internal
note annexed to the writ petition which clarifies this position. The local
military authority other than the 342 Army Establishments mentioned
wp113-19.doc
in guideline dated 21st October 2016 are covered by the impugned
guidelines.
140. In our view, there is no merit in the submission of the
learned senior counsel for the petitioners that Notification dated 28 th
July 1987 under the Official Secrets Act is without authority. The
respondent no.3 has exercised powers under sub-clauses (c) and
(d) of Section 2(8) of the Official Secrets Act and notified the
respondent no.6 as a 'Prohibited Place.'
141. Learned senior counsel for the petitioners does not
dispute that the Respondent No.6 is India's leading Defence Public
Sector Undertaking Shipyard under the aegis of respondent no.2.
After respondent No.2 has taken over respondent no.6 in 1960,
respondent no.6 has become the leading manufacturer of submarines
and warships for Indian Navy. The functions of respondent no.6
includes and/or not limited to (a) construction of stealth warships for
Indian Navy and Coast Guard, (b) construction of warships for Indian
Navy and (c) construction of submarines for Indian Navy. These
activities are undertaken by respondent no.6 by laying out sketches
and model of the said warship/submarines. Such activities are highly
secretive and sensitive to the security/sovereignty and integrity of
India. Respondent No.3 has accordingly exercised powers under
sub-clauses (c) and (d) of Section 2(8) of the Official Secrets Act
wp113-19.doc
and notified respondent no.6 as a 'Prohibited Place.'
142. After considering the nature of work carried out by
respondent No.6, this Court is of the view that it is imperative to
ensure that there is no recording, photography, sharing, transferring
or transmitting of secured data with sensitive information which may
be possible on account of advance technology and gadgets coupled
with the proximity to Defence Establishments that would be more than
useful to any enemy and its disclosure is likely to affect the
sovereignty and integrity of India. In our view, construction activities
cannot be permitted at the cost of national security. The construction
proposed by the respondents is likely to be misused for spying over
the property and activities of respondent No.6, which is an offence
under the provisions of the Official Secrets Act.
143. There is no merit in the submission of the learned senior
counsel for the petitioners that the developer was not required to
obtain NOC if the permission was already granted prior to 18th May
2011 or that the plot of the petitioners is outside the boundary
indicated by the respondents. In our view, since notification under
Section 3 of the WODA was not necessary for the action initiated by
the respondents, question of publication of such notification did not
arise. There is no merit in the submission of the learned senior
counsel for the petitioners that the circulars are not applicable till 9 th
wp113-19.doc
August 2019. In our view, individual inconvenience alleged to have
been canvassed by the petitioners cannot prevail over the national
interest. The public interest would prevail over the private interest.
The petitioners had not challenged the provisions of the MRTP Act or
D.C. Regulations in this petition.
144. Supreme Court in case of Rai Sahib Jawaya Kapur &
Ors. (supra) has held that a perusal of Article 154 of the Constitution
of India indicates that it does not follow that in order to enable the
executive to function, there must be a law already in existence and
that the powers of executive are limited merely to, the implementation
of those laws.
145. Supreme Court in case of M/s.Kasturi Lal Lakshmi
Reddy (supra) has held that one basic principle which must guide
the Court in arriving at its determination is that there is always a
presumption that the Government action is reasonable and in
public interest and it is for the party challenging its validity to show
that it lacks in reasonableness or is not in conformity with public
interest. This burden is a heavy one and it has to be discharged to
the satisfaction of the Court by proper and adequate material. We
are inclined to accept the submission made by Mr.Naphade, learned
counsel for the respondent no.6 that though the respondent no.3 had
raised an objection when the building was constructed upto 7th floor,
wp113-19.doc
the Municipal Corporation had issued stop work notice only when the
building was constructed upto 19th floor was constructed with a view
to nullify the objection.
146. In so far as the judgment of the Supreme Court in case of
F.B. Taraporawala & Ors. (supra) relied upon by Mr.Samdani,
learned senior counsel for the petitioners is concerned, the said
judgment does not apply to the facts of this case even remotely.
147. In so far as the order passed by the Supreme Court on 9th
April 2012 in case of TCI Industries Limited vs. Municipal
Corporation of Greater Bombay in Special Leave to Appeal (C)
No.10381 of 2012 arising out the judgment delivered by this Court is
concerned, Supreme Court has granted leave in the said SLP. The
judgment of this Court is however has not stayed by the Supreme
Court.
148. In so far as the judgment of the Supreme Court in case of
Canara Bank Vs. N.G. Subbaraya Setty & Anr. (supra) relied upon
by Mr.Samdhani, learned senior counsel for the petitioners is
concerned, the said judgment also does not apply to the facts of this
case even remotely.
149. In so far as the judgment of the Supreme Court in case of
Satwaratna Co.op Housing Society Ltd. & Anr. Vs. BPCL (supra)
relied upon by the learned senior counsel for the petitioners in support
wp113-19.doc
of the submissions that the judgment of this Court in case of BPCL
Vs. Municipal Corporation of Greater Mumbai delivered on 25 th April
2019 is reversed by the Supreme Court is concerned, a perusal of the
said judgment of the Supreme Court in case of Satwaratna Co.op
Housing Society Ltd. & Anr. Vs. BPCL (supra) indicates that the
earlier judgment of the Supreme Court has not been brought to the
notice of the Supreme Court on the similar issue. Be that as it may,
the facts before the Supreme Court in the said judgment are different
from the facts before this case.
150. The Supreme Court in case of Satwaratna Co.op
Housing Society Ltd. & Anr. Vs. BPCL (supra) has held that when
acting under Article 226 of the Constitution of India, High Court does
not act as a Court of Appeal and hence would not be entitled to
interfere with exercise of discretion by an Officer except in cases of
violation of a law, rule or regulations. In this case, higher authority of
Defence Establishment after considering the security aspect
perceived by it had insisted for NOC. The NOC from Defence
Establishment was mandatory before carrying out any construction in
the nearby vicinity within the close proximity. In our view, the said
judgment would support the case of the respondents and not the
petitioners. The Defence Establishment having considered the
security aspect being an expert, this Court cannot interfere with the
wp113-19.doc
decision of the said expert while exercising powers under Article
226 of the Constitution of India. The guidelines dated 18 th May 2011
read with amendment were not considered in that case. The said
judgment does not deal with interpretation of MRTP Act and D.C.
Regulation with reference to the safety and security of Defence
Establishment which has been considered in large number of
judgments delivered prior to the judgment in case of HPCL (supra).
The Supreme Court in the said judgment was considering an issue
as to whether a buffer zone could be created around a refinery.
There is no such issue in this case. In our view, the writ petition is
devoid of merit.
151. In so far as the judgment of the Supreme Court in case of
Babu Verghese & Ors. (supra) is concerned, Supreme Court has
held 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. There
is no dispute about propositions of law laid down by the Supreme
Court in the said judgment. In our view, none of the respondents
have committed any act contrary to the manner of doing such act
provided under any of the statutes. The said judgment in case of
Babu Verghese & Ors. (supra) thus would not assist the case of the
petitioner.
152. In so far as the Judgment of the Supreme Court in case of
wp113-19.doc
S.N. Rao & Ors. v. State of Maharashtra (supra) relied upon by the
petitioner is concerned, the said judgment would not apply to the
facts of this case even remotely. The circulars issued by the Union of
India are not beyond their powers or contrary to Articles 73 or 162 of
the Constitution of India. The said judgment thus would not assist the
case of the petitioner.
153. The Supreme Court in the case of Bishambhar Dayal
Chandramohan V/s State of Uttar Pradesh has held that "the State
in exercise of its executive power is charged with the duty and the
responsibility of carrying on the general administration of the State.
So long as the State Government does not go against the provisions
of the Constitution or any law, the width and amplitude of its executive
power cannot be circumscribed. If there is no enactment covering a
particular aspect, certainly the Government can carry on the
administration by issuing administrative directions or instructions until
the legislature makes a law in that behalf. Otherwise, the
administration would come to a standstill." In the present case the
guidelines existed prior to the proposal for development being
submitted by the petitioners. Further, the MDL was also declared an
LMA on 9th August 2017, and these facts and circumstances cannot
be ignored since the same have to be seen in the public interest as
opposed to private interest.
wp113-19.doc
154. In so far as the judgment of the Supreme Court in case of
Hindustan Times & Ors. v. State of U.P. & Anr. is concerned, in
our view, since the respondents have not taken away the property of
the petitioner, the judgment of Supreme Court would not apply and is
clearly distinguishable on facts of this case. Similarly, the judgments
of the Supreme Court in cases of State of W.B. & Ors. Vs. Sujit
Kumar Rana (supra), Hari Krishna Mandir Trust v. State
Maharashtra & Anr. (supra), B.K. Ravichandra & Ors. Vs. Union
of India (supra) & Sukh Dutt Ratra & Anr. vs. State of Himachal
Pradesh & Ors. (supra) would not apply to the facts of this case for
the similar reasons.
155. In so far as the judgment of the Supreme Court in case of
State of Bihar & Ors. v. Project Unchcha Vidya, Sikshak Sangh &
Ors. (supra) is concerned, Supreme Court has held that the
requirement of law for the purpose of clause (6) of Article 19 of the
Constitution of India can by no stretch of imagination be achieved by
issuing a circular or a policy decision in terms of Article 162 of the
Constitution of India or otherwise. Such a law, it is trite, must be one
enacted by legislature. There is no dispute about the proposition of
law laid down by the Supreme Court in the said judgment. In
our view, the said executive instructions issued by the respondents
by way of circulars are not beyond the powers of the Central
wp113-19.doc
Government and thus the said judgment would not apply to the facts
of this case.
156. In so far as the judgment of the Supreme Court in case of
P.H. Paul Manoj Pandian v. P. Veldurai (supra) relied upon by the
learned senior counsel for the petitioner is concerned, Supreme Court
in the said judgment has dealt with Article 162 of the Constitution of
India and has held that the executive power of the State extends to
matters with respect to which the State Legislature has power to
make laws. 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. Central Government in this case has issued such circulars
considering its powers also under Section 46 of the MRTP Act and
Regulation 16(n) of the Development Control Regulations, 1991
which has to be read together and not in isolation.
157. In so far as the judgment of this Court in case of
Association of International Schools & Principals Foundation &
Anr. v. State of Maharashtra & Ors. (supra) relied upon by
Mr.Samdhani, learned senior counsel for the petitioners is
concerned, in support of the submission that right to manage an
institution is also a right to property is misplaced. The respondents
have taken away properties of the petitioners. Ownership of the
wp113-19.doc
petitioners in the said writ property continues even today.
158. In so far as the judgment in the case of Runwal
Constructions (supra) relied upon by Mr. Godbole, learned counsel
for the petitioners is concerned, the construction of the petitioners
therein was at a distance of approximately 500 meters from the
Helipad. There were two notifications under WODA, which imposed
restrictions upto a distance of 100 mtrs. This Court in the facts of that
case observed that the reliance on Guidelines by the respondents
was not justified in view of the fact that there was already a
notification under WODA.
159. This Court has held that in almost all the decisions (supra)
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. There is no dispute
about the propositions of law laid down by the said judgment.
However, in this case, the Central Government has not taken away
the property rights of the petitioners. The said judgment is clearly
distinguishable on facts of this case.
160. In so far as the judgment of the Division Bench of this
Court in case of Manohar Lal Sharma v. Union of India & Ors.
(supra) relied upon by the learned senior counsel for the petitioners
wp113-19.doc
is concerned, this Court has held that the respondents Union of India
may decline to provide information when constitutional considerations
exist, such as those pertaining to the security of the State, or when
there is a specific immunity under a specific statute. However, it is
incumbent on the State to not only specifically plead such
constitutional concern or statutory immunity but they must also prove
and justify the same in Court on affidavit. In this case, the
respondents have sufficiently brought on record the security
concerns in not granting NOC to the petitioners to carry out
development of the writ property. The said judgment in case of
Manohar Lal Sharma v. Union of India & Ors. (supra) thus would
not assist the case of the petitioners.
161. If Central Government once having satisfied this Court
about the security concern, this Court cannot substitute security
threat of the Central Government perceived by the Central
Government and substitute its perception by another view.
162. In so far as the judgment of Supreme Court in case of
Pharmacy Council of India Vs. Rajeev College of Pharmacy &
Ors. (supra) relied upon by the learned senior counsel for the
petitioners is concerned, Supreme Court in the said judgment has
held that a citizen cannot be deprived of the right under Article 19 (1)
(g) except in accordance with law. It is held that the requirement of
wp113-19.doc
law for the purpose of clause (6) of Article 19 of the Constitution can
by no stretch of imagination be achieved by issuing a circular or a
policy decision in terms of Article 162 of the Constitution or otherwise.
Such a law, it is trite, must be one enacted by the legislature. These
powers of the Central Government has been upheld not only by this
Court but also by the Supreme Court. The said judgment is clearly
distinguishable on facts and would not assist the case of the
petitioners.
163. We accordingly pass the following order :-
(i) Writ petition is dismissed. Rule is discharged. Interim
application pending, if any, stands disposed off.
(ii) This Court has not expressed any views on the issue
whether the petitioners would be entitled to seek any compensation
from the respondents for the loss, if any, suffered by the petitioners
in view of the notices issued by the respondents. The said issue is
kept open.
(iii) No order as to costs.
(KAMAL KHATA, J.) (R.D. DHANUKA, J.)
