Calcutta High Court (Appellete Side)
The Commandant vs The Kolkata Municipal Corporation & Ors on 1 December, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
M.A.T. 1344 of 2022
The Commandant, Ordnance Depot, Alipore.
Vs
The Kolkata Municipal Corporation & Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellant : Mr. Nandlal Singhania, Sr. Adv.,
Mr. Vipul Kundalia, Adv.
Mr. Debu Chowdhury, Adv.
For the Respondent No. 5 : Mr. P. Chidambaram, Sr. Adv.
Mr. Arindam Banerjee, Sr. Adv,
Mr. A. Mitra, Sr. Adv.
Mr. Biswajit Kumar, Adv.
For the Respondent No. 6 : Mr. Anindya Kumar Mitra, Ld. Sr. Adv.,
Mr. Sourav Bhagat, Adv.
Ms. Shruti Swaika, Adv.
Mr. Deepan Sarkar, Adv.
Ms. Yukti Agarwal, Adv.
Mr. Ritwik Saha, Adv.
For UOI : Mr. Kumar Jyoti Tewari, Adv.
Mr. A. Majumdar, Adv.
For BSNL : Mr. Rajib Mukherjee, Adv.
Ms. Shreyasi Bhaduri, Adv.
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For K.M.C. : Mr. Achinta Banerjee, Adv.
Mr. Ranajit Chatterjee, Adv.
Judgment On : 01.12.2023
Arijit Banerjee, J. :-
1. This appeal is directed against a judgment and order dated July 8,
2022, whereby the appellant's writ petition being WPA no. 13756 of 2021
was dismissed along with two connected applications.
2. The appellant/ writ petitioner had approached the learned Single
Judge contending that Kolkata Municipal Corporation (in short 'KMC') ought
not to have sanctioned a building plan in favour of the respondent no. 5
DSK Real Estates Limited (in short 'DSK'), permitting construction of a G+40
storied building at premises no. 34, Diamond Harbor Road, Kolkata. The
ground urged by the writ petitioner before the learned Single Judge and also
before us, was and is, that construction of such a high rise in the immediate
vicinity of the Ordinance Depot situated at 40, Remount Road, Kolkata, is
prohibited by the relevant Circulars issued by the Ministry of Defence (in
short MOD) and, in any event, would breach/ jeopardize the safety and
security of such Depot. The prayers made before the learned Judge were for
a direction on KMC to cancel the building plan sanctioned by it and also to
direct KMC to issue restraint order upon DSK requiring it not to take further
steps in furtherance of the sanctioned plan.
3. The arguments advanced by the parties before the learned Single
Judge were essentially the same as have been made by the parties before us,
which I will shortly advert to. The learned Judge considered the relevant
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Circulars issued by the MOD and the applicable case law. The learned
Judge found that the restrictions imposed in the Circular of 2011, which
may have prohibited the subject construction, were substantially done away
with in the Circular of 2016. The learned Judge found that KMC had
sanctioned the concerned building plan in accordance with and not in
breach of the restrictions mentioned in the 2016 Circular. The concluding
observations of the learned Single Judge are as follows:-
"76. This Court can neither impute personal knowledge nor assess
the security hazards, as rightly pointed out by Mr. Singhania. The
matter is also pending before the Government of India for a further
review of the circular dated October 21, 2016. The decision of this
Court is restricted to the question whether any illegality has been
committed by the KMC, in granting a building permit to the
respondent no.5 and whether the sanction has been granted in
violation of the security restrictions imposed by the Government.
This court does not find that the KMC has failed to abide by the
security guidelines as laid down by the Ministry of Defence,
Government of India, in its circular dated October 21, 2016.
77. Moreover, by an order dated October 1, 2021, the Union of
India was specifically directed to answer in its affidavit and clarify
the position by giving its own interpretation of its guidelines.
78. The Court does not find that the UOI has supported the
contentions of the petitioner, in the affidavit. The relevant portions
of the affidavit are quoted below:-
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"7. That in the year 2016, Guidelines were once again
amended by Ministry of Defence vide their notification ID
11026/2/2011/D (lands) dated 21st October 2016, which
states as under.
".....Reference Circular of even number dated 18 May 2011
read with amendments issued vide Circulars of even number
dated 18 Mar 2015 and 17 Nov 2015 regarding grant of No
Objection Certificate (NOC) from the Local Military Authorities
(LMA) for construction of buildings in the vicinity of defence
establishments.
2. In view of the large number of representations received
from elected representatives to review the guidelines issued in
2011 as difficulties are being faced by public in constructing
buildings on their own land and pending finalization of
amendments to the Works of Defence Act 1903, the
Government has decided to amend guidelines issued under
Circular dated 18 Mar 2011 read with Circulars dated 18 Mar
2015 and 17 Nov 2015 in consultation with Services, in the
following manner.
a) Security restrictions in respect of Defence
establishments/installations located at 193 stations as listed
in Part A of Annexure to this circular shall apply upto 10
meters from the outer wall of such Defence establishments/
installations to maintain clear line of sight for effective
surveillance. Any construction or repair activity within such
5
restricted zone of 10 meters will require prior No Objection
Certificate (NOC) from the Local Military Authority
(LMA)/Defence establishments."
8. That the NOC Guidelines issued vide MOD Letter No.
11026/2/2011/D(Lands) dated 21.10.2016 are presently
under review."
79. The interpretation of the effect of the circular dated October
21, 2016 by the KMC and the respondent No. 5 & 6, is correct.
However, the Ministry of Defence and the Government of India are
always entitled to assess the security issue and further review the
guidelines of 2016 and issue necessary directives. This Court
sitting in judicial review, cannot go beyond the contents of the
policy/guidelines of 2016.
80. Admittedly, the circular dated October 21, 2016, is pending a
review before the Ministry of Defence. The Works of Defence Act,
1903 is also under review. Any decision taken by the competent
authority will prevail.
81. The decisions of the Kerala High Court, Bombay High Court
and the Delhi High Court, do have a persuasive value. It has been
stated in all the decisions that the mandatory restriction in respect
of Part A is only upto 10 metres and no further restriction has
been imposed by the circular dated October 21, 2016.
82. However, this Court for its own reasons, holds that the
submissions of the petitioner of an existing height restriction of
three storeys upto a distance of 500 metres from the outer wall of
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the defence establishments under Part A, is not a correct
interpretation. The amending circular of 2016 substituted
paragraphs 1(a) and 1(b) of the circular dated May 18, 2011.
Height restriction has been imposed for buildings to be
constructed within the vicinity of a separate class of defence
stations which are mostly near the border areas and listed under
Part B of the Annexure, to the guidelines of 2016. The KMC did not
err in granting the building permit. Such action was not in
violation of the security restrictions. The guidelines of 2016 will
prevail and no injunction can be granted by this Court, in respect
of the construction. This is not a case where the municipal laws
mandated consultation with the LMA, before grant of sanction. As
such, KMC was not required to seek the observations of the LMA,
on security implications under the guidelines of 2016."
4. The learned Judge thus dismissed the writ petition.
5. Hence this appeal by the writ petitioner.
6. We have heard learned Counsel for the parties at length. However, the
issue is very short.
7. The Ministry of Defence, Government of India, issued a Circular dated
May 18, 2011, indicating guidelines for issuance of 'No Objection Certificate'
(in short 'NOC') for building constructions. The Circular is set out
hereunder:
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"No. 11026/2/2011/D(Lands)
Government of India
Ministry of Defence
New Delhi, the 18th May, 2011
To,
The Chief of Army Staff
The Chief of Air Staff
The Chief of Naval Staff
New Delhi
Subject: Guidelines for issue of 'No Objection Certificate (NOC)' for
building constructions.
**************************
Of late, issue of NOC for construction on lands adjacent to Defence
Establishments has generated avoidable controversies particularly in two
recent cases viz., Sukna and Adarsh. Various issues involved in these two
cases were reviewed and the matter has been considered in detail in the
Govt. in consultation with the Services. It is felt that Works of Defence Act,
1903 which imposes restrictions upon use and enjoyment of land in
vicinity of Defence Establishments needs to be comprehensively amended
so as to take care of security concerns of defence forces. While the process
of amendment has been put in motion and may take some time, it was felt
necessary to issue instructions in the interim to regulate grant of NOC. The
objective of these instructions is to strike a balance between the security
concerns of the forces and the right of public to undertake the construction
activities on their land. Following guidelines are therefore laid down:-
(a) In places where local municipal laws require consultation with the
Station Commander before a building plan is approved, the Station
Commander may convey its views after seeking approval from next higher
authority not below the rank of Brigadier or equivalent within four months
of receipt of such requests or within the specified period, if any, required by
law. Objection/views/NOC will be conveyed only to State Government
agencies or to Municipal authorities, and under no circumstances shall be
conveyed to builders / private parties.
(b) Where the local municipal laws do not so require, yet the Station
Commander feels that any construction coming up within 100 meter (For
multistorey building of more than four storeys the distance shall be 500
meters) radius of defence establishment can be a security hazard, it should
refer the matter immediately to its next higher authority in the chain of its
command. In case the next higher authority is also so convinced, then the
Station Commander may convey its objection / views to the local
municipality or State Government agencies. In case the municipal
authority / State Government do not take cognizance of the said objection,
then the matter may be taken up with higher authorities, if need be
through AHQ / MOD.
(c) Objection / views / NOC shall not be given by any authority other than
Station Commander to the local municipality or State Government agencies
and shall not be given directly to private parties / builders under any
circumstances.
(d) NOC once issued will not be withdrawn without the approval of the
Service Hqrs.
2. These instructions will not apply where constructions are regulated by
the provisions of the existing acts / notification viz., Cantonments Act,
2006, Air Craft Act, MoCA, 1934, Gazette Notification SO 84(E) dated
14.01.2011 (as revised from time to time), Works of Defence Act, 1903, etc.
In such cases provisions of the concerned Act / Notification will continue to
prevail.
(Dr. A.K. Singh)
Director (L&C)
Copy to:
DGDE; DRDO; Coast Guard HQ;
CGDA; DGQA; OFB [through D(Fy-II]"
8. A modification was made to the aforesaid notification by the MOD, by
issuing a Circular dated March 18, 2015, which is not relevant for the
present purpose.
9. A further amendment was made to the 2011 guidelines by a Circular
dated November 17, 2015. This is also not relevant for our purpose.
10. Finally, a Circular dated October 21, 2016, was issued by MOD
amending guidelines issued by the Circular dated May 18, 2011, read with
the Circulars dated March 18, 2015, and November 17, 2015. This Circular
must be set out in its entirety:
"No. F.11026/2/2011/D(Lands)
Government of India
Ministry of Defence
New Delhi, the 21st October, 2016
To,
The Chief of Army Staff
The Chief of Air Staff
The Chief of Naval Staff
Subject: Guidelines for issue of 'No Objection Certificate (NOC) for building
constructions' - regarding
Reference Circular of even number dated 18.05.2011 read 'with
amendments issued vide Circulars of even number dated 18.03.2015 and
17.11.2015 regarding grant of No Objection Certificate (NOC) from the Local
Military Authorities (LMA) for construction of buildings in the vicinity of
defence establishments.
2. In view of the large number of representations received from elected
representatives to review the guidelines issued in 2011 as difficulties are
being faced by public in constructing buildings on their own land and
pending finalization of amendments to the Works of Defence Act, 1903, the
Government has decided to amend guidelines issued under Circular dated
18.05.2011 read with Circulars dated 18.03.2015 and 17.11.2015, in
consultation with Services, in the following manner:-
a) Security restrictions in respect of Defence establishments / installations
located at 193 stations as listed in Part A of Annexure to this circular shall
apply upto 10 meters from the outer wall of such Defence
establishments/installations to maintain clear line of sight for effective
surveillance. Any construction or repair activity within such restricted zone
of 10 meters will require prior No Objection Certificate (NOC) from the Local
Military Authority (LMA)/Defence establishments.
b) Security restrictions in respect of Defence establishments/installations
located at 149 stations as listed in Part B of Annexure to this circular shall
apply upto 100 meters from the outer wall of such Defence
establishments/installations to maintain clear line of sight for effective
surveillance. Any construction or repair activity shall not be permitted
within 50 meters. Further, a height restriction of 03 meters (one Storey)
shall be applicable for the distance from 50 meters to 100 meters. Any
construction or repair activity within such restricted zone between 50 to 100
meters will require prior No Objection Certificate (NoC) from the Local
Military Authority (LMA) /Defence establishments.
3. It is further provided that where local municipal laws require consultation
or approval or NoC from the LMA/Station Commander before a building
plan is approved, compliance to such statutory requirements shall continue
to be applicable.
4. The procedure for issuance of NOC shall be the same as contained in
Circular dated 18.05.2011.
Encl.: As above
Yours faithfully,
(G.C. Srivastava)
Deputy Director (Lands)
Copy to:
1. DG, DGDE, New Delhi
2. CC(R&D), DRDO, New Delhi
3. Coast Guard HQ,
4. Ordnance Factory Board (through D(Fy-II))
5. CGDA
6. DGQA"
11. Learned Advocate appearing for the appellant submitted that the
concerned Ordnance Depot is authorized to store several tons of armoury,
clothings, spares etc. Presently the Depot has huge inventory of all types of
war time equipments. Location of the Depot is vital from strategic, security
and logistic point of view.
12. He submitted that the Station Commander, Kolkata Military Station,
vide letter dated March 31, 2015, had informed the concerned respondents
that due to security concern, NOC cannot be issued for construction of the
building in question. However, when the construction of the building started
on the basis of plan sanctioned by KMC, the appellant through his
advocate's notice dated July 12, 2021, called upon the respondents to stop
the ongoing construction. However, DSK by its letter dated August 6, 2021,
replied that it was entitled to continue with the construction and there was
no requirement for obtaining NOC from the LMA.
13. Learned Counsel submitted that Flat owners/occupants of the
building in question will have a direct line of sight to the core depot catering
to the Indian Army in general and Eastern Command of the Indian Army in
particular. It was because of such security threat, that the LMA had refused
to issue NOC. Such security threat still remains and subsists as on date.
None of the subsequent security assessments returned a finding that the
already assessed security threat had ceased to exist. Therefore, mere
introduction of the 2016 guidelines, which are in any event clarificatory and
in addition to the 2011 guidelines, would not render nugatory the earlier
security assessment by the LMA.
14. Learned Advocate for the appellant then submitted that on a
combined reading of the Circulars dated May 18, 2011, March 18, 2015,
November 17, 2015 and October 21, 2016, it would appear that: (i) the
respondents misinterpreted the 2016 guidelines by reading the same in
isolation. The 2016 Circular was supplemental to the Circulars of 2011 and
2015. The guidelines of 2016 revisited the earlier guidelines only to the
extent of horizontal distance of the proposed construction from the outer
boundary wall of the Ordnance Depot. The 2016 guidelines do not deal with
height restrictions. Therefore, as far as the height restriction is concerned,
the guidelines of 2011 would be applicable. (ii) The 2016 guidelines were not
intended to supersede the 2011 guidelines which are still in force. (iii) The
guidelines of 2011 and 2016 have to be read harmoniously, keeping in mind
their real objective i.e., safety and security of military establishments in
close vicinity of high-rise buildings. (iv) The security threat which was
prevailing earlier cannot be said to have vanished due to issuance of the
2016 Circular. (v) The height restriction is necessary for clear line of sight
for effective surveillance.
15. Learned Advocate submitted that there is no concept of negative
euality. The fact that some builders were permitted to construct high-rise
buildings in the vicinity of the Depot does not mean that DSK must also be
permitted to raise a high-rise building in violation of the aforesaid Circulars.
16. It was then submitted that the Army is an expert in the filed of
national security. The entire Depot would be visible from the terrace / upper
storeys of the concerned building. Right to build/ develop property may be a
constitutional right or even a human right, but subject to the issue of
national security. In this connection learned Advocate relied on a decision of
the Bombay High Court in the case of Vikram Delite Co-op, Hsg. Soc. Ltd.,
a Co-operative Housing Society, through its Treasurer Vithal D. Patel
and Ors. v. Union of India, through its Secretary to the Ministry of
Defence and others, reported at 2022 SCC OnLine Bom 6700
(paragraphs 43,44,48, 51, 74, 75 and 93).
17. Learned Advocate emphasized that safety and security of the nation
and the Military establishment of the country is of paramount importance.
There is an inherent danger in allowing high-rise buildings being
constructed near military establishments in view of the potential threats to
the military units. With the advancement of modern technology and
sophisticated weaponry being available to the terrorists and anti-national
elements, permitting construction of high-rise buildings in close proximity to
military establishments/units may provide a 'billet' for perpetrators of anti
national activities. In this connection learned Advocate refer to the following
decisions:-
(i) Union of India, through the Indian Army v. State of Maharashtra
through the Secretary, Urban Development Department and Ors.,
reported at (2016) SCC OnLine 2570.
(ii) Unreported decision of Bombay High Court in the case of TCI
Industries Limited v. The Municipal Corporation of Greater Bombay in
writ petition no. 2859 of 2006.
(iii) Union of India & Ors. v. State of H.P. & Ors., reported at 2015 SCC
OnLine HP 1232.
(iv) Ex-Armymen's Protection Services Private Limited v. Union of India
& Ors., reported at (2014) 5 SCC 409.
(v) Digi Cable Network (India) Pvt. Ltd. & Ors. v. Union of India & Ors.,
reported at AIR 2019 SC 455.
(vi) K.S. Puttaswamy (Retired) & Anr. v. Union of India & Anr., reported
at (2019) 1 SCC 1.
I will revert to these decisions later in this judgment, if necessary.
18. Learned Advocate for the appellant finally submitted that there was no
delay on the part of the appellant in approaching the writ Court. As national
security is involved in the present case, it is not for the Court to decide
whether or not something is in the interest of the State. The decision must
be left to the executive. In a situation of the possibility of national security
being jeopardized, a party cannot insist on strict compliance of the
principles of natural justice. National interest must prevail over private
economic interest. Learned Advocate submitted that the appeal should be
allowed.
19. Mr. Mitra and Mr. Chidambaram learned Sr. Advocates appearing for
the respondents nos. 5 and 6 i.e., DSK and Tata Housing Development
Company Limited respectively, submitted that prior to issuance of the 2016
guidelines, DSK had applied for sanction of a building plan. In view of the
objection of the LMA and the 2011 guidelines, such application was not
allowed. After the 2016 guidelines came into being, on September 14, 2017,
DSK once again applied for sanction of building plan in view of the
relaxation of restrictions. On September 25, 2017, KMC sanctioned the
building plan. The sanction was granted taking into account the 2016
guidelines. The construction has been made strictly adhering to the
sanctioned building plan.
20. It was submitted that by the time the appellant approached the
learned Single Judge, 18 floors had already come up. The learned Judge by
order dated October 1, 2021, declined to pass an order of injunction.
However, the learned Judge directed by way of interim measure that no
construction be may beyond 20 floors. On November 9, 2021, the earlier
interim order passed in the writ petition was modified and construction was
allowed up to 23 floors.
21. Learned Sr. Advocates drew our attention to a letter dated February
27, 2017, addressed by the LMA to the Commissioner of KMC, enclosing the
2016 guidelines, and requesting KMC to adhere to the said guidelines whilst
granting sanction of plans. The relevant building plan was sanctioned by
KMC in accordance with the 2016 guidelines.
22. Learned Sr. Advocates then drew our attention to the affidavit affirmed
on behalf of the MOD on December 9, 2021, where in it is stated that the
2011 guidelines have been amended by the 2016 guidelines. Clause 2(a) of
the 2016 guidelines has been set out in such affidavit which is to the effect
that the restriction is applicable only for construction within 10 meters from
the outer wall of a defence establishment included in part - A. It is also
stated in the said affidavit that the 2016 Circular is under review by the
Government.
23. It was then pointed out that on December 9, 2021, a further order was
passed by the learned Single Judge directing that no further construction be
made beyond 23 floors till January 7, 2022. Aggrieved by that order, the
present appellant filed an appeal being MAT no. 1333 of 2021. The restraint
order dated December 9, 2021, expired by efflux of time on January 7, 2022.
On February 9, 2022, MAT 1333 of 2021 was disposed of by the Division
Bench observing that the appeal had become infractuous since the order
dated December 9, 2021, ceased to exist after January 7, 2022.
24. Learned Advocate submitted that at the time of admission of the
present appeal no interim relief was granted to the appellant. An affidavit
has been filed by DSK stating that the 43 storied building is complete except
for a small portion of the roof. On February 1, 2023, an order was passed by
this Court directing not to issue completion certificate in respect of the
concerned building without leave of the Court.
25. Learned Counsel submitted that it is not in dispute that the
concerned building plan is in conformity with the applicable law i.e., KMC
Act, 1980, and the Rules and Regulations framed thereunder. The 2016
guidelines have been made a part of the KMC law by way of Circular no. 6
dated January 2, 2017. Hence, KMC while sanctioning a building plan is
duty bound to ensure compliance with the said guidelines, which it has
done.
26. It was then submitted that the 2016 guidelines are an amendment to
the 2011 guidelines as modified from time to time. Once, the 2016
guidelines came into force, the restrictions prescribed under the 2011
guidelines, in so far as they were inconsistent with the 2016 guidelines,
ceased to exist. This was the intent of the MOD as would be evident from a
bare reading of Clauses 3 and 4 of the 2016 guidelines.
27. It was submitted that had the 2011 guidelines still been in vogue and
had the 2016 guidelines not in fact done away with the restrictions under
the 2011 guidelines, then and in that case, the question of reviewing the
2016 guidelines would not have arisen. Learned Counsel for the appellant
has repeatedly submitted that the 2016 guidelines are under review.
28. As regards the submission that the building in question is a potential
threat to national security, learned Advocate for DSK submitted that no
such case has been pleaded in the writ petition. There is no whisper of any
potential threat to national security or how the security of the nation has
been evaluated or assessed or threatened on account of the construction of
the concerned building.
29. It was then submitted that it is strange that the appellant which is an
organ of the Union of India and the Union of India are appearing through
separate sets of lawyers.
30. The Union of India in its affidavit filed before the learned Single Judge
did not state that there is any threat to national security by reason of the
concerned building. No such point was argued by the Union before the
learned Single Judge. The Union of India is estopped from arguing a new
case before the appeal Court. In this connection learned Sr. Advocate for
DSK relied on the decisions of the Hon'ble Supreme Court in the cases of (a)
Banarsi & Ors. v. Ram Phal reported at (2003) 9 SCC 606, (b) Chitra
Kumari (Smt.) v. Union of India & Ors. reported at (2001) 3 SCC 208.
31. Learned Sr. Advocate then submitted that there is no quarrel with the
proposition that national security is of paramount importance and the issue
of national security is a question of policy and not of law. It was submitted
that the 2016 guidelines constitute the current policy regulating the
construction of buildings in the vicinity of defence establishments. It was
submitted that on March 28, 2018, in response to an unstarred question
raised in Parliament regarding construction limitations, the MOD responded
by stating that the 2016 guidelines are the final amendment on this subject.
32. It was then submitted that the stance taken by the appellant on
alleged threat to national security is arbitrary and hence violative of Article
14 of the Constitution. At least 4 high-rise buildings known as Diamond
Tower (36 meters high), Siddhartha (42 meters high), Harbour Heights (42
meters high) and Belair (105 meters high) have been permitted to be
constructed within 12 to 364 meters from the outer wall of the concerned
Ordnance Depot. There is no justification for singling out the present project
and raising objection regarding the same.
33. Finally, learned Sr. Advocate submitted that even though the right to
property may no longer be a fundamental right, yet, it still remains a
constitutional right under Article 300A of the Constitution. If the
submissions of the appellant are accepted and sanction of the building plan
by KMC is annulled, the same would result in deprivation of DSK's right to
property without authority of law. DSK will be deprived of the user of the
premises and effectively would be deprived of the Rs. 105 Crore investment
made in constructing the building. In this connection reliance was placed on
the following decisions:- (a) Bishambhar Dayal Chandra Mohan & Ors. v.
State of U.P. & Ors., reported in (1982) 1 SCC 39. (b) State of UP & Ors.
v. Manohar, reported in (2005) 2 SCC 126. (c) Chairman, Indore Vikas
Pradikaran v. Pure Industrial Coke & Chemicals Ltd. & Ors., reported
in (2007) 8 SCC 705. (D) Sarita Gupta v. MCD, reported in 2019 SCC
OnLine Del 10123.
34. Learned Advocate for KMC submitted that the relevant building plan
was sanctioned keeping in view the 2016 Circular. It would appear from
that Circular that the restrictions which had been imposed earlier have been
removed and the restrictions are now limited up to 10 metres from the outer
boundary wall of the military establishment in question. The concerned
building has been constructed admittedly at a distance of 14 meters from
the outer boundary wall of the Ordnance Depot. There was no question of
obtaining any NOC from the LMA in view of relaxation of the restriction.
KMC sanctioned the building plan strictly in accordance with law and the
applicable Rules and Regulations. Learned Advocate referred to Sections 393
and 396 of the KMC Act, 1980 and Rules 3, 4, 7 and 16 of the KMC building
Rules, 2009, which pertain to sanction of building plans. It was also
submitted that Section 397 of the KMC Act, which authorizes the
Commissioner of KMC to cancel a sanctioned plan if it is found that such
sanction has been obtained by making misrepresentation or practicing
fraud, is not attracted to the facts and circumstances of this case. Learned
Advocate submitted that the order impugned in this appeal is well reasoned,
and in tune with the settled principles of law, warranting no interference in
appeal. The appeal should be dismissed.
35. I have given my anxious consideration to the rival contentions of the
parties.
36. There cannot possibly be any dispute with the proposition that in case
of a conflict between public and private interest, the former will prevail.
National security is of paramount importance and possibly represents the
most important public interest. Nothing should be permitted to be done by a
citizen which may even remotely tend to compromise or jeopardize the safety
and security of the nation. To this extent, all rights of a citizen - be it a
fundamental right under the Constitution, other Constitutional Right or any
Right under the law of the land - is subservient to the protection of national
safety and security. If exercise of any such right by a citizen is likely to
adversely affect the security of the nation, the citizen must be restrained
from exercising such right.
37. There cannot also be any quarrel with the proposition that the right to
property which would include the right to develop a property, although no
more a fundamental right, is still a Constitutional Right under Article 300A
of the Constitution and has also been recognized as a human right.
However, such right must stand abrogated if exercise of such right in any
manner tends to endanger the safety and security of the country. If
development of a property poses any kind of threat to national security,
such development must be stopped.
38. The question is, who decides as to whether or not a particular
development project is likely to jeopardize national safety and security? In
my view, it is the MOD, in consultation with the 3 Services i.e., the Army,
the Air Force and the Naval Force.
39. The Works of Defence Act is a very old legislation of 1903. The world
has moved on since then and 120 years have gone by. From the two
Circulars of 2011 and 2016 we find that the 1903 Act is in the process of
being amended as it was felt that the restrictions imposed in that Act upon
use an enjoyment of land in the vicinity of Defence establishments need to
be amended to take care of security concerns of Defence Forces. The 2011
Circular records that the process of amendment of the 1903 Act has been
put in motion but may take some time. Therefore, it is necessary to issue
instructions in the interim to regulate grant of No Objection Certificate
(NOC) for construction of buildings in the vicinity of Defence
Establishments. Accordingly, the MOD, in its wisdom, issued the 2011
guidelines for grant of NOC for constructions in close proximity to Defence
Establishments. The Circular contained stringent guidelines for grant of
NOC. There can be no doubt that the Executive is the proper authority for
assessing the national safety and security and ensuring that the same is not
compromised in any manner by any action on the part of any citizen of the
country. Hence, the MOD was completely justified in issuing the 2011
Circular containing interim guidelines pending finalization of amendment to
the Works of Defence Act.
40. However, in view of the strictness of the 2011 guidelines, it appears
that the Government received representations from members of the public
complaining that their right to property including their right to construct
was being unduly restricted or abrogated by the 2011.
41. Accordingly, the Government, in consultation with the Services
amended the 2011 Circular by issuing the 2016 Circular. It must be
presumed that the Government took such a step keeping in mind the safety
and security of the Nation and of the Defence Establishments. The security
of the Nation is undoubtedly a matter of Government policy. The
Government definitely would not have issued the 2016 guidelines if it
thought that the same would tend to compromise the safety and security of
the country. Hence, the Government guidelines of 2011 for grant of No
Objection Certificate for constructions in the vicinity of defence
establishments, stood amended by the 2016 guidelines.
42. Clause (a) of the 2011 guidelines pertained to a situation where local
Municipal laws required consultation with the Station Commander before a
building plan is approved by the sanctioning authority. This was not
relevant in the present case as the West Bengal Municipal Laws do not have
any such requirement. Clause (b) of the 2011 Circular contemplates a
situation where the local Municipal Laws do not require prior consultation
with the LMA for sanctioning a building plan. The guidelines provided that
even in such a case if the Station Commander felt that a building being
raised within 100 meters, or for a building having more than four storeys,
within 500 meters radius of the defence establishment can be a security
hazard, it should refer the matter to the next higher authority. If that
authority agreed with the Station Commander's view, then the Station
Commander could convey his objections/views to the local Municipality or
State Government agencies. If the Municipal Authorities or State
Government did not pay any heed to such objection, then the matter could
be taken up with higher authorities through AHQ / MOD.
43. In other words, the LMA could object to the construction of a building
of up to 4 storeys, if the same was being built within 100 meter radius of the
concerned Defence establishment. It could also object to the construction of
a building having more than 4 storeys if the same was proposed to be built
within 500 meter radius of the Defence establishment. In both cases, if the
Station Commander felt that the security of the concerned Defence
Establishment would be breached by the proposed construction, he could
record his objection to such construction and follow up the matter in the
manner provided in the 2011 Circular as I have briefly indicated above.
44. By issuing the 2016 Circular, the Government divided the Defence
establishments into two categories. In Part A of the annexure to the 2016
Circular, the Government listed 193 stations and provided that security
restrictions in case of those stations will apply up to ten meter from the
outer walls of such Defence establishments. Any construction or repairing
activity within 10 meter from the outer wall of such a defence establishment
would require prior NOC from the LMA. This would necessarily mean that as
per the said guidelines, any construction or repairing activity beyond the
restricted zone of ten meter from the outer wall of such a Defence
establishment would be permissible and would not require NOC from the
LMA.
45. However, in respect of 149 Defence establishments listed in part B of
the Annexure to the 2016 Circular, more stringent restrictions were
maintained. It was provided that security restrictions would apply up to 100
meter from the outer wall of such a Defence establishment. No construction
or repairing activity would be permitted within 50 meter from the outer wall
of such an establishment. Between 50 meter to 100 meter from the outer
wall of such an establishment, there would be a height restriction of 3 meter
(one storey). Any construction or repairing activity between 50 to 100 meters
from the outer wall of the establishment will require prior NOC from the
LMA.
46. From a juxtaposed reading of the two Circulars, it is clear that by
issuing the 2016 Circular, the Government limited the restrictions on
constructing buildings up to ten meter from the outer wall of a Defence
establishment listed in Part A of the Annexure to the 2016 Circular.
Admittedly, the Ordinance Depot with which we are concerned in this case,
is listed in Part A of the Annexure to the 2016 Circular. Hence, the security
restrictions would apply only upto a distance of 10 meter from the outer wall
of that Ordinance Depot. The construction objected to by the appellant is
admittedly at a distance of 14 meter from the outer wall of the said Defence
establishment. Hence, I am in full agreement with the learned Single Judge
that the permission granted by KMC for construction of the concerned
building having 42 storeys was in no manner contrary to or in violation of
the 2011 Circular as amended by the 2016 Circular.
47. An argument was made by learned Advocate for the appellant that the
2016 Circular only dealt with lateral distance from the outer wall of a
Defence establishment beyond which a construction can be made. That
Circular does not deal with the height of a building that may be constructed.
Hence, the restriction regarding height in the 2011 Circular i.e., no building
having more than 4 storeys within 500 meter radius of a Defence
establishment, continues to apply and to that extent the Circulars of 2011
and 2016 will have to be read together and harmoniously. I am unable to
accept such argument. It is incorrect to say that the 2016 Circular does not
deal with height restrictions at all. In so far as the Defence establishments
listed in Part B of the Annexure to the 2016 Circular are concerned, it is
provided that between 50 meter to 100 meter from the outer wall of such a
Defence establishment, there would be a height restriction of 3 meter (one
storey). Further, as noted above, no construction or repairing activity is
permitted within 50 meter from the outer wall of such an establishment.
48. In other words, while issuing the 2016 circular the government, in its
wisdom, in consultation with the respective Chiefs of the three Services, i.e.,
Army, Air Force and Navy, did away with all restrictions including height
restrictions for proposed buildings beyond ten meter from the outer walls of
the Defence establishments listed in Part A of the Annexure to the 2016
Circular. This is the understanding of the learned Single Judge and this is
how I also read the two Circulars of 2011 and 2016.
49. This is also the understanding of a Division Bench of the Delhi
High Court as would appear from the judgment in the case of Union of
India v. Government of NCT Delhi (LPA 693 of 2019). In that case also,
the Circulars of 2011 and 2016 fell for consideration of the Delhi High
Court. It was argued on behalf of the Union of India that the height
restrictions stipulated in the 2011 Circular were still in vogue and the 2016
guidelines, were not intended to supersede the 2011 guidelines. It was
further submitted, as was submitted in the present case, that the 2011 and
2016 guidelines have to be read together and harmoniously keeping in mind
the objective thereof i.e., the safety and security of military establishments
in close vicinity of high rise buildings. Referring to an order of the Hon'ble
Supreme Court passed on August 28, 2012 in IA 25265/2018, Saraf Infra
Projects Ltd. v. The State of West Bengal & Ors., the Delhi High Court
at paragraphs 9.3 to 11.0 of the judgment held as follows:-
"9.3 In this respect, suffice it to state that plain reading of guidelines
dated 21.10.2016 show that the same unambiguously mention that
pursuant to large number of representations received from the elected
representatives conveying the difficulties faced by the public in
construction of buildings on their own lands, review of the guidelines
dated 18.05.2011 was undertaken. And the Government decided to
amend the guidelines issued vide guidelines dated 18th May 2011, 18th
March 2015 and 17th November 2015. Let us again refer to Clause 2 (a)
of the said guidelines dated 21.10.2016 at the cost of repetition which
reads as under :
"a) Security restrictions in respect of Defence establishments /
installations located at 193 stations as listed in Part A of Annexure
to this circular shall apply upto 10 meters from the outer wall of
such Defence establishments / installations to maintain clear line
of sight for effective surveillance. Any construction or repair
activity within such restricted zone of 10 meters will require prior
No Objection Certificate (NoC) from the Local Military Authority
(LMA) / Defence establishments."
9.3.1 It is evident that no height restriction was imposed qua buildings
coming up near defence establishments specified in Annexure A.
Whereas, restriction of height was imposed with respect to construction
coming up in the vicinity of certain installations/defence
establishments specified in Annexure-B. Restriction of height was
prescribed with respect to certain buildings (in Annexure B) and not
with respect to others (in Annexure A). Thus, there is hardly any force
in the argument of Ld. counsel for the appellant that restriction as to
height as per 2011 guidelines has to be read even in respect of
buildings falling in Clause 2(a) of 2016 circular. Rather, from the
reading of Clause 2 (a), it is evident that the Government in its wisdom
and after considering various representations and taking into account
the security concerns, etc., did not contemplate any prior NOC from
LMA/DE with respect to any construction/repair activity beyond 10
meters of DE/installations located at 193 stations as listed in Part A of
Annexure to the said circular. As already noted that the DE, the
Ordnance Depot, Shakur Basti (as involved in the present case) is listed
at Serial No. 144 in Part A of the Annexure to the 2016 Circular. Thus,
the construction activity beyond 10 meters of the said defence
establishment is permissible, without any height restriction.
10.0 Ld. counsel for respondent no. 4 also referred to order dated
28.11.2018 of Hon'ble Supreme Court in Civil Appeal No.
4746/2017, titled as Saraf Infra Projects Ltd. vs. The State of
West Bengal & Ors., relevant portion of which is reads as under :
"The present I.A. is filed in view of certain recent Guidelines that
have been issued by the Central Government, in particular,
Guidelines dated 21.10.2016, in which it is stated that so long as
the construction is beyond 10 meters of the outer wall of a military
compound, there would be no objection by the military authorities
to such construction coming up in accordance with law.
Ld. counsel for the petitioner has shown us a recent circular
issued by the Kolkata Municipal Corporation dated 02.01.2017 in
which it has been directed by all concerned to follow the guidelines
dated 21.10.2016 issued by the Central Government.
In this view of the matter and in view of the fact that the
appellant alleges that their construction is beyond 10 meters of the
outer wall of the military compound concerned, we allow this I.A.
and direct the Respondent No.3 to issue an Occupation certificate,
as prayed for, in accordance with law."
10.1 In its counter affidavit dated 07.12.2019 to the present appeal, in
para 4 of Preliminary Objections, the respondent no. 4 has stated that
in the above case 11 storeyed building of Hotel Radisson Blue was
constructed at a distance of more than 10 meters from the boundary
wall of military establishment.
10.2 As per the above judgment, considering that the construction was
beyond 10 meters of the defence establishment, though stated to be 11
storeyed tall, the Occupation Certificate was directed to be issued by
the Apex Court.
11.0 Ld. counsel for the respondent no. 4 also submitted that even
otherwise, the Ordnance Deport, Shakur Basti is located in thickly
populated area of Delhi; and there are number of multi-storeyed
buildings already existing in its front side, namely Bhagwan Mahavir
Hospital (Government) with Staff Residence, which is of 35 meters
height; Keshav Mahavidyalaya in front of Ordnance Depot, Office of
Deputy Commissioner of Police, a Petrol Pump, Vardhman Shopping
Complex, Telephone Exchange, Magistic Mall, etc. No objection was
ever raised by the appellant at the time of construction of these
buildings. Ld. counsel further argued that even 10 storeyed hotel has
already come up adjacent to the wall of the Ordnance Depot, with
respect to which even Completion Certificate has been issued by the
DDA. These facts are not disputed. Ld. counsel for the respondent no. 4
argued that in view of these facts, apprehension expressed by the
appellant regarding security threat is absolutely unfounded."
50. Learned Advocate for the appellant argued that in the case before the
Delhi High Court, it was submitted that the Government had decided to
close down the concerned defence establishment and that is a
distinguishing feature. I cannot agree. The observations and findings of the
Delhi High Court are independent of the fact that the Defence establishment
involved in that case was going to be shut down. I am in respectful
agreement with the view of the Delhi High Court in the aforesaid case, as
regards the effect of the 2016 guidelines.
51. The Kerala High Court also has taken the same view in a judgment
and order dated February 8, 2018, passed in W.P.(C) no. 9798 of 2013.
52. On behalf of the respondent no. 5 it was also argued that the present
appellant/Writ petitioner does not have the locus standi or the authority to
maintain the present proceedings. The Circulars of 2011 and 2016 both lay
down the procedure for the Station Commander to proceed in the event he
has objection to any construction being raised in the vicinity of a Defence
establishment. In the present case, the Station Commander has not followed
such procedure and has purported to file the writ petition. He should have
reported the matter to higher authorities and the writ petition could have
been filed only by the Union of India through the Ministry of Defence.
Although there may be some substance in the aforesaid submission, I
need not go into the same since on merits I am of the considered view that
the writ petition was rightly dismissed by the learned Single Judge and this
appeal is accordingly liable to be dismissed.
53. Learned Counsel for the respondent no. 5 also argued that Union of
India which was added as a party respondent in the writ petition by the
learned Single Judge by order dated October 1, 2021, did not urge the point
of national security before the learned Single Judge. Referring to the
affidavit filed by the Union of India before the learned Single Judge, learned
Counsel submitted that there is not a whisper in the said affidavit about
threat to national security by reason of the construction in question. Hence,
Union of India ought not to be permitted to urge that point before the appeal
Court. In this connection learned Counsel relied on two Supreme Court's
decision in the cases of Banarsi & Ors. v. Ram Phal (supra), Chitra
Kumari (Smt.) v. Union of India & Ors. (supra).
Again, there is no need for me to go into the aforesaid issue since in
my view, on merits, the appellant/writ petitioner has no case.
54. As regards the submission of the respondent no. 5 that at least 4 high
rise buildings have been permitted to be constructed within 500 meters from
the outer wall of the Ordinance Depot in question, the same surely goes
some distance to support the case of the respondents as regards the
interpretation of the 2016 Circular. However, I need not dwell on such issue
as on an independent interpretation of the 2016 Circular in the back drop of
the 2011 Circular, I have found the appellant's case to be devoid on merits.
55. The other decisions cited by learned Counsel for the appellant are all
on the point that the safety and security of the nation and the defence
establishments of the Country are of utmost importance. The Army is an
expert in the field of national security which is a matter of policy and not an
issue of law. The policy laid down by the Defence Ministry in the interest of
national security is not justiciable.
56. There can be no dispute with the aforesaid propositions and hence to
avoid prolixity, I refrain from dealing with the said decisions relied upon by
the appellant.
57. I completely agree with the appellant's contention that nothing can be
more important than national safety and security. It is the duty of every
citizen of the country to ensure that under no circumstances national
security is compromised to any extent. No interest of an individual citizen or
even of a group of citizens can override national interest. Any right of a
citizen, whatever may be the source of such right, must stand abridged or
negated if national interest so requires.
58. However, in the present case, I find that the prevailing policy of the
Government as regards guidelines for issuance of NOC or permission for
construction of buildings in the vicinity of the Defence establishments, is
contained in the 2016 Circular issued by the MOD in consultation with the
heads of the three wings of the Military. The Government of India through
its MOD has in its wisdom thought it fit and proper, by issuing the 2016
guidelines, to relax the restrictions regarding construction of buildings in
the proximity of Defence establishments as were contained in the 2011
Circular. The Government is no doubt the best judge of what will or will not
be a threat to National Security or the safety and security of Defence
establishments. The Court is not in a position to adjudicate the prudence
behind issuance of the 2016 guidelines nor the Court has been called upon
to do so in the present proceedings. If the MOD, which is the appropriate
authority, is of the opinion that the 2016 guidelines need amendment for
better protection of the safety and security of the Defence establishments of
the nation as a whole, the same should definitely be done. However, as the
concerned Government Policy stands at the moment, reflected in the 2016
Circular, I find no merit in the objection raised by the appellant to the
construction of the building in question. KMC has not erred in any manner
to accord sanction for the said construction. Such permission is in no
manner in breach of the 2016 Circular.
59. In view of the aforesaid, I find no reason to interfere with the judgment
and order assailed in this appeal. The appeal is accordingly dismissed.
There will be no order as to costs. Interim order stands vacated.
60. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities
I agree.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
