Bombay High Court
Shivaji Nagar Shivkiran Co.Operative ... vs Maharashtra Housing And Area ... on 5 January, 2024
Author: Gs Patel
Bench: G.S.Patel
2024:BHC-OS:284-DB Shivaji Nagar CHSL v MHADA & Ors
907-oswp-1215-2023-F.doc
Wadhwa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1215 OF 2023
1. Shivaji Nagar Shivkiran
Co-operative Housing
Society Ltd,
a co-operative housing society duly
registered under the Maharashtra Co-
operative Societies Act, 1960 having
office at Bldg Nos 6 & 7, Shivaji
Nagar, Dr Annie Besant Road, Worli,
Mumbai-400 025.
2. Sugee Developers Pvt Ltd,
a company incorporated under the
Companies Act, 1956 and having its
office at 3rd Floor, Nirlon House, Opp
Sasmira College, Dr Annie Besant
Road, Worli, Mumbai - 400 030. ...Petitioners
~ versus ~
1. Maharashtra Housing And
Area Development
Authority,
a Statutory Authority constituted under
the provisions of the Maharashtra
Housing & Area Development Act,
1976 having office at Griha Nirman
Bhavan, Kala Nagar, Bandra (East),
Mumbai - 400 051.
Digitally
signed by
SANDHYA
SANDHYA BHAGU
BHAGU WADHWA
WADHWA Date: Page 1 of 15
2024.01.08
12:58:16
+0530 5th January 2024
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2. The Executive Engineer, BP
Cell, Greater Mumbai,
MHADA,
having office at Griha Nirman Bhavan,
Kala Nagar, Bandra (East), Mumbai -
400 051.
3. Union of India,
Ministry of Defence, through
(a) The Flag Officer
Commanding-In-Chief,
Western Naval Command.
(b) The Commander, Executive Officer,
INS Trata,
served through the Ministry of Law
& Justice, having its office at CGO
Building, Queens Road, Marine Lines,
Mumbai. ...Respondents
A PPEARANCES
for the petitioner Mr Ravindra Kadam, Senior
Advocate, with Rohan Kadam,
Sanjay Kadam, Sanjeel Kadam,
Soham Salvi, Netra Jagtap, i/b
Kadam & Co
for respondent no 1- Mr PG Lad, with Sayli Apte & Shreya
MHADA Shah.
for respondent no 3 Mr Devang Vyas, Senior Advocate,
with Amogh Singh, Rahul Arora
& Sheelang Shah
CORAM : G.S.Patel &
Kamal Khata, JJ.
DATED : 5th January 2024
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ORAL JUDGMENT (per GS Patel J):
1. Rule. By consent, returnable forthwith.
2. The Petition raises a question of public law to the limited
extent that it involves the actions of two public authorities, but that
question arises in the extremely peculiar and unique facts and
circumstances of this case. We have seen the prayers in the Petition
with Mr Kadam's assistance, and we find that there is no larger and
broader relief sought nor any challenge to the jurisdictional remit of
the public authorities in question. The entire relief is therefore
restricted to the Petitioner's project.
3. The area in question is the well-known and much sought after
Worli area. Specifically, the site is just to the east, on an internal
road from the Worli Sea Face. At the northern end of the Worli Sea
Face there is a defence installation known as Site-II of INS Trata.
From there to the northwest of Site-II is the main INS Trata
installation. A public road lies between the two locations and
traverses eastward to meet Dr Annie Besant Road.
4. The site may best be seen by a reproduction of the Google
Earth satellite image that Mr Kadam has provided us. A copy is
annexed to this order.
5. The Petitioners' project site is a proposed redevelopment
under Reg. 33(5) of the Development Control Regulations, 2034
("DCR"). The property is owned by Maharashtra Housing and
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Area Development Authority ("MHADA"). The whole of DCR 33
is a series of special provisions that create exemptions from the
otherwise universally applicable FSI norms. DCR 33(5) relates to
the development and redevelopment of housing schemes of
MHADA. It inter alia provides what additional FSI may be available
for such projects.
6. There is no controversy or issue about the provisions of DCR
33(5).
7. The essence of the Petitioners' case is that MHADA has
demanded that the Petitioners obtain a No Objection Certificate
("NOC") from the 3rd Respondent, the Union of India through its
Ministry of Defence, itself through the Flag Officer Commanding-
in-Chief, Western Naval Command, and the Commander, Executive
Officer of INS Trata. That Central Government NOC has been
refused. It is Mr Kadam's case, as we shall presently see, that no
such NOC was ever necessary; the two other special planning
authorities, namely the Municipal Corporation of Greater Mumbai
("MCGM") and the Slum Rehabilitation Authority ("SRA"), do
not insist on this; the state government has issued a notification or
direction to the MCGM and SRA (but not addressed to MHADA)
not to seek such an NOC; the Defence Circulars prescribing
distance restrictions were withdrawn or substituted by a much lower
distance restriction, which, though later said to be "in abeyance",
could not have had the effect of reviving the earlier distance
limitations.
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8. There are two Affidavits filed by the 3rd Respondent, the
Union of India. We will first briefly set out the relevant dates and
then proceed to the rival submissions. We do so bearing in mind that
there are undoubtedly concerns voiced by Mr Vyas, learned ASG for
the Union of India, that cannot readily or easily be brushed aside.
9. The plot in question is CTS No 999 of Shivaji Nagar and
relates to buildings Nos 6 and 7. These buildings have already been
demolished. There are as many as 96 families who are today out in
transit accommodation.
10. On 18th May 2011, the Defence Ministry issued guidelines
regarding NOCs to be granted for building construction. A
procedure was described in regard to multistorey buildings of more
than four floors within 500 meters of defence establishments. On
17th November 2015 there came to be issued a corrigendum, but the
details of this are not immediately important for our purposes today.
On 27th May 2019, MHADA submitted a proposal to the
Commander-in-chief for a defence NOC. The response was for a
Google map to identify the precise location. This was submitted.
Later in 2019, the Petitioners applied to MHADA for
redevelopment permission.
11. In August 2020, the MCGM classified both buildings in the
C-1 (dilapidated, dangerous and ruinous condition) category and
directed that the buildings be evacuated and demolished. In
September 2020, MHADA also classified the buildings as such.
Then on 4th November 2020, MHADA wrote to the 2md
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Respondent inviting comments on the proposed redevelopment. On
26th August 2021, the Executive Engineer of MHADA sanctioned
the plans for the proposed building and issued an Intimation of
Approval ("IoA"). On 6th October 2021, the Executive Engineer
commissioned a distance survey from the Institute of Remote
Sensing, Anna University ("IRS"). This report was forwarded to
the Flag Officer Commanding-in-Chief.
12. Meanwhile, the 96 families in these two buildings were
evacuated in April 2022 and shifted to transit. Until 12th August
2022, several months after the 2nd Respondent had sought
comments from the Defence, there being no reply, the 2nd
Respondent issued permission for shore piling. Then on 17th
October 2022, the 2nd Respondent issued a show cause notice to
the Petitioner. This was premised on the basis that the 2nd
Respondent had received a letter of 29th September 2020 from the
Station Commander INS Trata objecting to the redevelopment. The
objection specifically was that the project property was at the
distance of 470 meters of the boundary wall of Site-II. The Station
Commander claimed that this permission had been earlier refused
on 11th March 2021. There is some controversy about this 11th
March 2021 letter, but we prefer not to enter into that terrain
because it is quite unnecessary in our view.
13. On 21st October 2022, the Petitioners replied to the show
cause notice. They pointed out that the Defence Circular did not
apply since the IRS survey had reported the distance to be beyond
the 500 meters. There was nothing to show that the property was
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within the prescribed distance. The decision had in any case not
been taken within 4 months. On 16th November 2022, MHADA
wrote to the Commander-in-Chief intimating him of the IRS
findings and emphasizing that redevelopment was necessary
because 96 families had been dishoused.
14. On 23rd December 2022, the Defence Ministry issued fresh
guidelines for granting NOCs for buildings proposed their defence
establishments. These now set the distance limitations at 50 meters
from the boundary wall of the establishment. INS Trata is listed as
one of those establishments at page 114 of the Petition.
15. As a result of this, on 5th January 2023, the Petitioners asked
MHADA to grant a plinth NOC and this followed a few days later
on 13th January 2023. The Petitioners began work. Not long
thereafter, on 23rd February 2023 the Defence Ministry issued a
circular apparently keeping the new guidelines (with the revised 50
meter prohibition) in abeyance. On 3rd March 2023, the 2nd
Respondent, MHADA's Executive Engineer issued a stop work
notice to the Petitioners citing this 23rd February 2023 circular. In
March 2023, the Petitioners demanded that the stop work notice be
withdrawn but it was permitted only to construct to the plinth level
and on condition that the IoA permission granted by MHADA
would be held in abeyance pending a full permission from the 3rd
Respondent the Union of India. Hence this Petition.
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16. The first Affidavit in Reply is of the 3rd Respondent and is of
7th November 2003. Paragraphs 9 to 13 of this Affidavit at pages
208 to 211 read thus:
"9. I say that, with respect to para no. 4.20 to 4.24, in
spite of refusal of defence NOC being intimated way back
on 11th March 2021, Respondent No. 2, EE-BP Cell,
Greater Mumbai issued the shore pilling approval to the
petitioners vide letter dated 12th August 2022.
Accordingly, Petitioner No. 2 started the construction
work. When it was realised by INS Trata that the
construction has started on the subject property,
immediately an objection was raised against the ongoing
construction work vide INS Trata letter dated 29th
September 2022 wherein the EE-BP cell was directed to
issue a stop work notice to Petitioner No. 2.
10. I say that, the Ministry of Defence issued a New
Defence Circular dated 23rd December 2022 wherein it
was stated that defence NOC is not required, if a proposed
construction is located beyond 50 mtrs radius of the
defence establishments. In light of this New Defence
Circular, Petitioner No. 2 requested MHADA to grant
plinth CC which was issued by EE-BP Cell on 13th January
2023. The Defence Circular dated 23rd December 2022
was later kept in abeyance vide another Defence Circular
issued by the Ministry of Defence vide Defence Circular
No. F11026/20/2011/D dated 23rd February 2023. Thus,
in light of the latest circular dated 23rd February 2023, the
Commanding Officer, INS Trata again wrote to EE-BP cell
to issue the impugned Stop Work Notice which has been
accordingly issued on 3rd March 2023.
11. I say that, the denial of NOC dated 11th March 2021
was as per the guidelines mentioned in the Defence
Circulars dated 18th May 2011, 18th March 2015 and 17th
November 2015. Clearly, the proposed construction is at
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approximately 400 mtrs from the Defence Establishment, if
the distance is measured from Site-II of INS Trata. Further
more, the proposed construction site does not fall under the
shadow shield area and has a height of 198.7 mtrs and
consists of basement + ground floor +1st to 4th floor
podium parking +5th floor as amenities +40 floors of
residential apartments. Such a huge structure will have a
direct view of the operations of INS Trata which cannot be
permitted for security reasons. Hence, denial of NOC is
completely justifiable.
12. I say that, even though Maharashtra Regional &
Town Planning Act (MRTP ACT, 1966), Development
control Regulation for Greater Bombay (DCR) 1991,
Development Control & Promotion Regulation (DCPR)
2034 may not mention the requirement of defence NOC,
however as per Section 154 of the MRTP Act, the State
Government is authorised to issue directions to the
Planning Authority, and accordingly Urban Development
Department (UDD) has taken note of Ministry of Defence
orders and issued necessary directives to the planning
authorities. The Petitioner is not deprived of his
constitutional right under Article 300-A of the Constitution
as the ownership rights of the property remains with the
Petitioner. The Government is well within its right to
impose reasonable restrictions and the right to property as
envisaged in Article 300(A) is not absolute. No right is
absolute and all rights come with reasonable restrictions so
as not to impinge upon another's right of enjoyment or
security.
13. I say that, the issue of validity of circular as well as
the need for defence NOC from the Defence Establishment
has been deliberated in detail in UOI Vs State of
Maharashtra (Adarsh Case) as well as SSV Developers and
TCI's case, wherein the Hon'ble Court has held that NOC
from the Defence Establishment is necessary and in fact
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mandatory for the planning authority to insist whilst
considering the proposals for building purpose. State of
Maharashtra Circulars dated 04th February 2016 and 20th
April 2016, have reiterated/amplified Ministry of Defence
guidelines dated 18 March, 2015 and 17 November, 2015.
17. We believed that this Affidavit did not sufficiently address the
issues. Mr Vyas readily agreed to take instructions and to file a
further Affidavit. This was specifically on the basis of Mr Kadam's
argument that, as can be seen from the plan, there were several
projects much closer to the two INS Trata sites and in respect of
which either permissions have been granted or, at any rate had not
been refused. We believe this required an explanation.
18. This led to the filing of the further Affidavit in Reply. It is
dated 12th December 2023. We believe this Affidavit provides the
necessary factual context. In paragraph 3 there is a listing of 22
construction projects within the radial distance. The first of these
Harsiddhi Heights, is said to be one where an NOC has been issued
but in respect of which there is legal action. The one at item No2
has an NOC, but it is of 1st February 1995 before the two Defence
Circulars in question. Items 3, 4 and 5 have NOCs of 2009, 2017
and 2016, respectively. Item 5 in particular, Shandilya Terrace is of
2016 after the 2011 and 2015 circulars and is a ground and 24-storey
building which is closer in proximity even on the plan that is shown
to us than the Petitioners site. From items 6 to 21 there are various
projects mentioned, but the statement in the table is that the details
of the NOC are not available.
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19. Independently of the arguments before us today, we are
informed that the two Defence Circulars in question of 2011 have
been struck down by an order and judgment of a co-ordinate bench
of this court and that an SLP is pending.1 Dolby Builders v MCGM.
We only note this.
20. The important factor for our purposes is the substitution of
the 2011 and subsequent circulars with a 500-meter distance
restriction by the December 2022 circular at page 102 prescribing a
50-meter distance. If the December 2022 circular is in operation,
then there is no question of an NOC even being sought. The issue
arises because in February 2023, the December 2022 revised
circular was apparently held in abeyance. We do not see how this
holding in abeyance and that too for an indefinite period could serve
to revive an earlier restriction. Further this could only operate
prospectively and could not possibly affect a permission previously
granted. Yet that is precisely what seems to have happened in this
case and this is why we say that there are extremely peculiar facts
and circumstances of no wider or more general applicability.
21. In any event, the settled legal position would be that in the
time window between the December 2020 circular reducing the
distance requirement and the abeyance notification of 26th
December 2023, the Petitioners' rights had crystallized, and these
cannot now be undone. That aspect of the law is not contentious.
1 Dolby Builders Pvt Ltd v Municipal Corporation of Greater Mumbai & Ors,
2023 SCC OnLine Bom 2110.
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Goan Real Estate & Construction Limited & Anr v Union of India
Through Secretary, Ministry of Environment & Ors . 2
22. Indeed, and this may be the purest speculation on our part,
even if the December 2022 circular was now to be repealed it is still
doubtful whether a permission granted on the basis of December
2022 could be set at nought because that would operate the repeal
retrospectively.
23. As we noted, since there is an SLP pending, we are making no
observations in regard to the circulars of 2011 (all the subsequent
circulars of 2015, 2016 and 2022) which are part of the judgment in
Dolby Builders Pvt Ltd v Municipal Corporation of Greater Mumbai &
Ors.3
24. Importantly, on 3rd November 2023, the State Government
informed the MCGM and SRA that these Circulars of the Defence
can no longer be applied. This is in the Additional Affidavit of 2nd
December 2023 filed by the Petitioners at Exhibit 'A' at page 220. It
is indeed peculiar that two of the three authorities dealing with
building and real estate development do not think it is necessary to
seek the NOC but a third one does. We pose this question: suppose
the plot was not owned by MHADA or was not a DCR 33(5)
redevelopment at all, but the project as proposed was exactly the
same, then how could it come to pass that no such NOC was
required? The requirement of an NOC cannot possibly be linked to
2 (2010) 5 SCC 388.
3 2023 SCC OnLine Bom 2110.
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which authority is demanding it. If the NOC is required from the
Defence, it must be required irrespective of which authority makes
that requisition.
25. Third, and this is the other peculiarity and singularity of the
matter, is the precise location of the plot especially in the context of
the other projects and the further Affidavit that has been filed by the
Defence. As we have noted there is one significant project,
Shandilya Terrace, of ground and 24 for which there is a positive act
of the grant of an NOC. There are also other projects for which no
NOC has been required or given. The one which is in dispute, even
if ignored, will make no difference.
26. We do not think that it is possible to accept an argument that
in the application of a set of circulars there can be any pick-and-
choose approach. This would lead straightaway to an Article 14
challenge on the grounds of arbitrariness and discrimination and
would undoubtedly succeed.
27. There is also the aspect of the well-established doctrine of
proportionality which requires that a proper balance be struck
between competing needs, demands or equity.
28. We should not be misunderstood to have held that the
requirements of the defence are immaterial or irrelevant. Indeed,
they are not, and none can suggest otherwise. But it is not for a
court to suggest what should be the prescribed distance. That is a
matter solely within the remit of the executive of the Union of
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India. The reasons why a particular establishment is noted as
sensitive and as requiring a safety distance are also not justiciable
matters for a court to consider. It may well be that the Defence
believes that a particular installation requires greater safety and
security than another. Those are not reasons that lend themselves to
judicial review. But once those distances, limitations, restrictions,
and norms are prescribed, they must at least be applied uniformly.
That is all that we hold.
29. Accordingly, and confining ourselves to the peculiar facts and
circumstances of the case, we proceed to make Rule absolute in
terms of prayers clauses (a), (b) and (c). It goes without saying that
all permissions to be granted have to be in accordance with law and
in conformity with all applicable building regulations.
30. The Petition is disposed of in these terms. There will be no
orders as to costs.
(Kamal Khata, J) (G. S. Patel, J)
5th January 2024
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5th January 2024
