Delhi High Court
Uoi vs Gnct Of Delhi And Ors on 11 January, 2019
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: January 11, 2019
+ W.P.(C) 6901/2017, CM No. 28665/2017
UOI
..... Petitioner
Through: Mr. R. Balasubramanian, Adv. and Mr.
Santosh Kumar, Adv.
versus
GNCT OF DELHI AND ORS
..... Respondents
Through: Mr. Ajjay Aroraa, Adv. for NDMC
Mr. Arvind K. Nigam, Sr. Adv. with
Mr. Ajay Kumar, Adv. and Mr. Mikhil
Sharda, Adv. for R4
AND
+ W.P.(C) 9883/2017, CM Nos. 40283/2017
NARYAN DUTT SHRIMALI FOUNDATION INTERNATIONAL
CHARITABLE TRUST SOCIETY
..... Petitioner
Through: Mr. Arvind K. Nigam, Sr. Adv. with
Mr. Ajay Kumar, Adv.
versus
UNION OF INDIA AND ORS
..... Respondents
Through: Mr. Jasmeet Singh, CGSC for UOI
Mr. Shlok Chandra, Adv. for DDA
Mr. Rakesh Mittal, Standing
Counsel with Mr. Maklesh
Anand and Ms Yamini Mittal,
Advs. for R2/NDMC
W.P.(C) No. 6901/2017 and connected matter Page 1 of 45
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. As these two writ petitions involve identical issues with
regard to the construction made on the same plot, they are being
decided by this common order. The facts of each of the writ
petitions are being narrated separately, and the parties shall be
referred to by their names.
Facts in W.P.(C) 6901/2017:-
2. This petition has been filed by the UOI (Commandant
Ordnance Depot) ("Commandant" in short) with the following
prayers:-
"It is therefore, most humbly prayed that this Hon'ble
Court may graciously be pleased to:-
(a) Issue a writ of certiorari and or such other
writ, order or direction calling upon Respondents 1 to
3 to produce the complete record leading to the
issuance of sanction accorded to the Respondent no.4
for construction of building to house a hospital at Site
No.2, Zone H-4/5, Facility Center, Pitampura, Delhi-
110034;
(b) Issue a writ of certiorari and or such other
writ, order or direction quashing sanction accorded to
the Respondent No.4 for construction of a high rise
building to house a hospital at Site No.2, Zone H-4/5,
Facility Center, Pitampura, Delhi-110034;
(c) Issue a writ of mandamus and or such other
writ, order or direction calling upon Respondents 1 to
3 to restrain permanently Respondent No.4 for
construction of high rise building to house a hospital at
Site No.2, Zone H-4/5, Facility Center, Pitampura,
Delhi-110034;
(d) Issue any other Writ/direction as this Hon'ble
Court may deem fit in the facts and circumstances of
the case."
3. It is their case, NDSF (writ petitioner in
W.P.(C) 9883/2017) approached the Station Commander, Delhi
Cantt. seeking NOC as regards height of the proposed hospital
vide letter dated September 05, 2016. In the said letter, NDSF
clearly stated that the location of the hospital is falling across the
500 meters green belt and 45 meters wide road i.e. road No.45,
opposite the Ordnance Depot and sought permission of the Local
Military Authority for construction of a building with a height of
70 meters. It was averred that NDSF had stated that building
plans were sanctioned by the Nr. DMC and the construction is
going as per the sanctioned plans but it has submitted revised
building plans for approval.
4. It is the case of the Commandant that Indian Army has a
vital establishment known as Ordinance Depot, Shakurbasti,
located in A-1-Defence Land in an area approximately 367.7
acres of land. Presently the Depot has huge inventory of all types
of war like stores supplied to approximately 700 field formations
/ units of the Indian Army as well as units proceeding on duty
abroad on UN missions.
5. It is the case of the Commandant that Dr. Narayan Dutt
Shrimali Foundation (NDSF) is carrying out construction of a
charitable hospital complex at site No.2, Zone H-4/5, Facility
Centre, Pitampura contrary to the Rules and Regulations, with
(NCTD/Nr.DMC). The site is north of the Ordnance Depot
(across road No.43) on a land allotted to the Trust by the Delhi
Development Authority. The inter-se distance between the
boundary of the Ordnance Depot and the building that is coming
up as a hospital is approximately 50 meters. It is the case of the
Commandant that sanction was accorded by Nr. DMC in the year
2013 for construction of building, but no information was given,
to the Military authorities.
6. The Commandant took up the matter with various local
Authorities of NCTD / Nr. DMC and also Chairman, NDMC vide
letters dated December 10, 2016 and January 06, 2017 and
expressed security reservations about the proposed hospital
coming up with a height of 70 meters in close vicinity of
Ordnance Depot, Shakur Basti which will be serious security
concern, and because of which NOC could not be given.
7. It is the case of the Commandant, by letter dated January
13, 2017, Nr. DMC wrote to the Station Commander, Delhi
Cantt. intimating that the NDSF wrote a letter dated December
29, 2016 to it stating that as per new guidelines for NOC, issued
by Ministry of Defence, Govt. of India dated October 21, 2016,
any construction or repair activity within restricted area of 10
meters would require NOC from local Military Authority and
since the hospital site is 100 meters away from the Depot
boundary wall and main approach road is 45 meters in front of
project boundary wall, no NOC is required. Nr. DMC also
informed the Station Commander that while NDSF has sought
NOC for 70 meters height, the building sanctioned plans were
only for 45 meters as per record. NDSF again approached HQ,
Delhi Area (Lands Branch) vide letter dated February 01, 2017
and requested for issue of NOC in favour of Nr.DMC.
8. It is the case of the Commandant that from letter dated
September 27, 2016 issued by Nr. DMC, it transpired that in fact
only Delhi Urban Arts Council (DAUC in short) had approved
the building plan of NDSF vide letter dated September 07, 2016,
whereas NOC from other local civil authorities like DFS,
Defence Establishment, AAI, DMA/NMA, DJB, NDPL was still
awaited. It was further stated by Nr. DMC that complete
compliance of I/N dated October 19, 2015, November 10, 2015
and reminders sent on various dates to NDSF had not been done
so far. It was also stated by Nr. DMC that UBBL-2016 has come
into force in Delhi and therefore the building plan should be
modified as per UBBL-2016 and in case proposal is changed
from earlier proposal prepared as per BBL-1983, revised
proposal, if any, had to be approved by external agencies.
9. That in the meantime, the local military authority
convened a Board of Officers and vide order dated February 07,
2017 they came to the conclusion that the high rise building, if
allowed to be constructed, will pose a security threat to the
Depot. The proceedings were submitted to the GOC, Delhi Area
who directed, vide directions dated March 28, 2017, that in view
of security implications NOC cannot be given. It is their case
that the construction of the building is still going on without
approval of various agencies of NCTD/ Nr. DMC as required
under law and further construction will pose a serious threat to
the safety and security of the Ordnance Depot, Shakur Basti.
10. Counter affidavit has been filed by Nr. DMC wherein it is
stated that initially, in the year 2013, the building plans for
construction of Ayurvedic Hospital were sanctioned / released
after obtaining comments from T.P. Deptt. & Health Deptt., Nr.
DMC, as well as obtaining NOCs from various Deptts. like DFS,
DUAC, AAI etc. The Building Plans were processed and
sanctioned in accordance with BBL-1983/MPD-2021. It is their
case that during the meeting held on March 08, 2016 in the
MoUD, Govt. of India on "Ease of Doing Business", the matter
relating to providing details and maps of areas where restrictions
have been imposed under the Works of Defence Act and other
Acts to Local Municipal Authorities was raised. The guidelines
for issuance of NOC for building constructions, issued by
Ministry of Defence vide letter dated May 18, 2011 were
received by respondent / North DMC as Annexure to letter of
Col. Yogesh Dungrakoti, dated March 14, 2016, alongwith the
maps demarcating area of 100/500 mtrs around Defence areas
including map of OD Shakur Basti. Vide this letter dated March
14, 2016, it was informed, for the first time, that the clause as
provided in the above mentioned letter and provided in the Work
of Defence Act 1903 are to be borne in mind, while giving
clearance for construction of any kind in vicinity of Defence land
and further that intimation be given to the Local Military
Authority to obtain NOC. These guidelines/instructions of
Ministry of Defence were circulated in respondent's office vide
letter dated March 17, 2016 for taking necessary action and
ensuring strict compliance of the same. It is their case since the
plans had already been sanctioned as explained above and
another application for revised sanction plans had been moved by
the NDSF, which were still pending on the date of circulation of
letter dated March 17, 2016, the NDSF was asked to get the NOC
from the Defence Establishment vide letter dated May 04, 2016.
It is Nr. DMC's case that later, UBBL-2016 got implemented in
North DMC w.e.f June-2016. Accordingly, vide letter dated
September 27, 2016, the petitioner was asked to bring the
proposal of revised building plans of the proposed hospital
building within the ambit of UBBL-2016 as the same was earlier
submitted as per BBL-1983. The earlier instructions for getting
the NOC from External Agencies like DFS, Defence
Establishment, AAI etc were also reiterated in the said letter. It is
their case that the Station Commander, Delhi Cantt. vide letter
dated December 10, 2016 informed the North DMC that the
hospital under construction will be a security hazard for
Ordnance Depot, Shakur Basti and hence no objection certificate
cannot be given by the Station Commander Delhi Area in terms
of provision of para 1 (b) of Ministry of Defence, Govt. of India
letter dated May 18, 2011. The Station Commander further
requested that the intended construction of the Hospital by NDSF
be not allowed to be undertaken at the site in close vicinity of
Ordnance Depot Shakur Basti. The said letter dated December
10, 2016 of Station Commander was forwarded to Zonal Building
Deptt.-I / Rohini Zone of Nr. DMC for taking necessary action in
the matter following due process of law. It is further their case,
from the said letter dated December 10, 2016 of Station
Commander, it was also revealed that the owner had asked NOC
for 70 mtr. height of proposed hospital building (15-16 storey),
whereas the proposal of revised building plan submitted by the
petitioner was only for 45 meters (approx). Therefore, vide letter
dated December 26, 2016, NDSF was requested to get the NOC
from Defence establishment for 45 met. (approx) height of the
proposed building as per the proposal submitted with respondent /
North DMC and also to comply with the directions issued by the
Station Commander vide letter dated December 10, 2016.
11. It is the case of the Nr. DMC that in response to the said
letter, the NDSF vide letter dated December 29, 2016 informed
that Ministry of Defence, vide its letter dated October 21, 2016
has already issued the new guidelines for issuance of NOC. The
Station /OD Shakur Basti is listed at Sr. No. 144 in Part-A of
Annexure and as per Point No. (a) of the new guidelines
"Security restrictions in respect of Defence establishments /
installations located at 193 stations as listed in Part A of
Annexure to this circular shall apply up to 10 meters from the
outer wall of such Defence establishments / installations to
maintain clear line of sight for effective surveillance. Any
construction / repair /activity within such restricted zone of 10.0
mtrs. will require prior No Objection Certificate (NO C) from the
Local Military Authority (LMA) / Defence Establishment".
NDSF further submitted that their site is 100 mtrs. away from the
Shakur Basti, Defence boundary wall and main approach road is
45.0 mtrs. in front of the project boundary wall. Hence, no NOC
was required as per their stand. Accordingly, Nr. DMC vide its
letter dated January 13, 2017, requested the Station Commander
to offer comments and confirmation of denial/rejection already
issued vide letter dated December 10, 2016 in the light of the new
circular / guidelines dated October 21, 2016 of Ministry of
Defence and for the 45.0 mtrs (approx) height of the building as
per the revised proposal submitted with the North DMC. It is
their stand, notwithstanding the response from the Commandant,
the Zonal Building Deptt.-IIRZ vide their letter dated January 17,
2017 and February 20, 2017 asked the NDSF to stop the
construction work till the procurement of NOC from Ordnance
Depot, Shakur Basti. In response to the letter dated January 13,
2017 of North DMC, the Station Commander vide his letter dated
February 10, 2017 again denied the NOC with the remarks that
the hospital building even upto height of 45.0 mtr. will be a
security hazard for OD Shakur Basti and therefore, No Objection
Certificate for construction of such a building cannot be given to
them. Thereafter, in consultation with CLO / North DMC, the
Respondent / Building HQ, North DMC vide its letters dated May
12, 2017, June 01, .2017 and July 31, 2017 sought clarification
from the Dy. Director (Lands), Ministry of Defence (the issuing
authority of guidelines for NOC) and the Station Commander,
Station HQ, Delhi Cantt. with respect to veracity and genuineness
of the said MoD circular dated October 21, 2016 as well as its
applicability in the instant case. However, no reply / clarification
to these letters of Building HQ, North DMC has been received so
far from the concerned authority of Ministry of Defence/ Station
Commander.
12. Insofar as revised building plan is concerned, it is the case
of Nr. DMC that at present the case of revised building plans
submitted by the NDSF vide file No. 63/B/HQNDMC/2015 dated
October 13, 2015 for the proposed hospital building of 45.0 mtr.
Height (approx) is pending / held up mainly due to rejection of
NOC by the Defence Authorities i.e Station Commander, Station
HQ, Delhi Cantt and pending clarification to the letters dated
May 12, 2017, June 01, 2017 and July 31, 2017 of the North
DMC.
13. Insofar as construction at site is concerned, it is the case
of the Nr. DMC, that vide their status report dated January 03,
2018, the Zonal Building Deptt.-I/K.P. Zone has reported that the
impugned site has again been inspected on January 03, 2018 and
no ongoing construction work was found at site. The existing
construction consist of basement only and no construction
activity has been carried out after issuance of work stop notice in
the month of February, 2017. It is the case of Nr. DMC that in
view of the fact that the Nr. DMC has not sanctioned the revised
sanction plan due to pending NOC from the Commandant and
has not permitted raising of any further construction under the
earlier approved plan, in view of the objection taken by the
Commandant, nothing survives against the Nr. DMC in the
instant writ petition and seeks the dismissal of the writ petition.
14. No rejoinder to the counter affidavit filed by Nr. DMC,
has been filed by the petitioner/commandant.
Facts in W.P.(C) 9883/2017:-
15. The present petition has been filed by NDSF with the
following prayers:-
"It is therefore most respectfully prayed that this
Hon'ble Court may graciously be pleased to issue:-
a) Writ order or direction in the nature of mandamus,
thereby directing the respondent No.2 to sanction the
revised building plans of the petitioner with respect to
its proposed hospital to be constructed at site No.2,
Zone-H-4/5, Facility Centre, Pitampura, Delhi-
110034, without insisting or compelling the petitioner
to obtain NOC from the respondent no.1 and 3 as per
its letter dated September 27, 2016;
b) To pass such other or further order which this
Hon'ble Court may deem fit and proper in the
circumstances of the case, in favour of the petitioner
and against the respondent."
16. The NDSF was allotted a plot by DDA vide Perpetual
Lease Deed dated June 02, 2015 with effect from June 26, 1996.
As per the zonal layout plan of the area, the plot in question is
meant for Hospital only. It is the case of the NDSF that it
obtained all requisite permissions for construction of hospital i.e
height clearance from AAI, DUAC, NOC from fire department,
electricity, water connection, sewage scheme, store water
drainage by Delhi Jal Board. NDSF applied for sanction of
Building plans for construction of charitable hospital with Nr.
DMC on March 13, 2012. Petitioner got sanction of plans by Nr.
DMC with 100 FAR, height of 33.5 mtrs vide letter dated July
08, 2013. It is the case of the NDSF that vide notification dated
September 23, 2013, the Ministry of Urban Development, Govt.
of India, notified the increase in the FAR from 100 to 375 for
hospital land in Delhi, in cases wherein, the area of hospital plot
is more than 2.5 ha. The NDSF after having the knowledge of
this increase in FAR, applicable to the hospital building, applied
for revised building plans vide its application dated October 08,
2015, with the Nr.DMC after paying the requisite charges of
Rs.9,68,000/-, for the height 45 mtr (although the FAR available
to the petitioner as per the notification dated September 23, 2013
was 375, without restriction of height). The NDSF applied for
the height of 45 mtr and FAR 150 in the revised drawings for the
limited purpose to avail the benefits of revised FAR only to the
extent that, it can avail the benefits thereof within its financial
resources available with it. It is the case of the NDSF that it
again applied for requisite permission for height clearance with
Airports Authority of India but with the height of 70 mtr
considering its future expansion plans, which was allowed by
Airports Authority of India vide its letter dated September 29,
2016. The NDSF obtained the approval of its revised building
plan from DUAC on September 07, 2016, and from CFO (Chief
Fire Officer) on February 10, 2017. NDSF further applied for
NOC for its proposed hospital with the Station Commander,
Delhi Cantt., which request was rejected vide letter dated
December 10, 2016 on the ground that hospital will be a security
hazard for Ordnance Depot, Shakur Basti. It is the case of the
NDSF that as per guidelines issued by Ministry of Defence dated
October 21, 2016 NDSF was not required to take prior NOC from
local Military Authorities, in case the proposed building is
located more than 10 mtrs away. Here hospital to be constructed
by the NDSF was at a distance of approximately 100 mtr. from
the outer wall of the Ordnance Depot. The NDSF wrote another
letter dated December 29, 2016 to the Nr. DMC informing about
the rejection of NOC, to which Nr. DMC vide its letter dated
January 13, 2017 forwarded the petitioner's contention before the
Commandant. The NDSF made a similar request to Ministry of
Defence dated January 20, 2017 requesting the Station
Commander and Col. (Lands) to issue NOC in favour of Nr.
DMC as distance between proposed hospital site and Shakur
Basti Depot is almost 100 mtrs. In reply to this letter,
Commandant vide letter dated February 10, 2017 again stated
that hospital building will be a security hazard for Ordnance
Depot, Shakur Basti, therefore NOC cannot be given and directed
Nr. DMC to stop illegal construction of hospital by the NDSF.
The NDSF also made similar requests on different dates to
different authorities and after long correspondence, vide letter
dated May 12, 2017 requested Ministry of Defence for
clarification with respect to denial of NOC for construction of the
petitioner's hospital in light of circular dated October 21, 2016.
The said letter has not been replied to by the Ministry of Defence
/Commandant till date. It is the case of the NDSF that adjacent to
the Ordnance Depot, a twelve storey hotel has already been
constructed in which the issue related to NOC was not raised by
the Commandant. The proposed hospital and the Ordnance Depot
are located in highly dense residential area and entire area is
surrounded by commercial buildings, hospitals, colleges etc,
which are much closer to the Ordnance Depot than the proposed
site for hospital. It is further the case of the NDSF that as per
Delhi Building Byelaws 6.7, Nr. DMC is duty bound to either
sanction or refuse the plans of the NDSF within 60 days of the
receipt of notice under Byelaws 6.1., and on failure, the same
shall be deemed to have been sanctioned. Therefore, in the
present case, the revised building plans which have been withheld
by the Nr. DMC without any logic / justification shall be deemed
to have been sanctioned as per Delhi Building Byelaws 6.7.
17. The stand of the North DMC in the counter affidavit is
similar to one already referred to above under W.P.(C) No.
6901/2017 and the same is not repeated for the sake of brevity.
18. It is the case of the Commandant in the counter affidavit
that the NDSF is constructing a high rise hospital consisting of
more than 10 floors illegally and without authority. The building
is planned to be raised up to a height of 70 mtr. and the distance
between the boundary of the Ordnance Depot, Shakurbasti and
the site of construction is a mere 47.06 mtr., perennially
endangering the safety and security of the military establishment.
Therefore, the NOC for the construction of such a building was
never given to the NDSF.
19. It is the case of the Commandant that as per clause
2.18.1.1 of the UBBL 2016, all building plans shall be submitted
to the building sanctioning authority / concerned local body. The
said body shall issue the sanction after receiving all requisite
documents within the time limit stipulated in chapters 2 and 3 for
various categories of buildings specified therein or within 30
days, whichever is less.
20. It is further submitted by the Commandant that since the
UBBL Delhi 2016 has come into force, the building in question
cannot be constructed without conforming to the relevant
necessary provisions of the same. It is further submitted that
according to the letters dated September 27, 2016 and January 13,
2017 issued by the Executive Engineer Building, Nr. DMC it is
evident that only the DUAC had approved the building plan of
the NDSF vide letter dated September 07, 2016, whereas NOC
from other local civic authorities like DFS, Defence
Establishment, AAI, DMC/MMA, DJB, NDPL are still awaited.
It is further submitted that despite being issued notices to
complete compliances by the Executive Engineer Building vide
I/N dated October 19, 2015 and November 10, 2015 and further
reminders having been sent on various subsequent dates the
compliances had not been done so far. It was also stated by
respondent No.2 that UBBL 2016 have come into force in Delhi
and therefore, the building plan should be modified and revised
proposal, if any, to be got approved from the external agencies.
21. It is the case of the Commandant that even though Nr.
DMC had granted sanction for construction of the building back
in 2013, no details or intimation of the same was given to the
local military authorities. The station commander took up the
matter with various local Authorities vide letter dated December
10, 2016 and expressed serious security concern and reservations
about the proposed hospital coming up with a height of 70 mtrs.,
in close vicinity of Ordnance Depot, Shakurbasti and therefore
recommended that NOC being sought by the NDSF be not
granted.
22. It is the case of the Commandant that the NDSF
approached his office in September 2016, when the Ministry of
Defence policy letter dated May 18, 2011 was in vogue and
applicable, and which stipulated that construction of buildings
coming up within a radius of 500 mtr. for buildings of more than
four storeys and a radius of 100 meters for other buildings from a
defence establishment, if deemed to be a security hazard by the
Station Commander, then even if the local municipal laws do not
so require, yet the matter shall be referred to a higher authority
for objections/views which will then be conveyed to the local
municipal or State Government agencies.
23. It is the case of the Commandant that the building being
constructed is being planned to be raised upto a height of 70 mtrs.
and the distance being 47.06 mrt. it comes within the restriction
zone and therefore, requires prior NOC from the local military
authority / defence establishment. The Commandant has also
stated that the Municipal Authorities have given clearances for
construction of only a building of up to 45 mtrs., the petitioner
intend to carry construction of a 70 mtrs. high building, thereby
going ahead with construction illegally and without authority.
24. It is the case of the Commandant that he / Station
Commander vide letter dated January 06, 2017 to the
Commissioner Nr. DMC emphasized that the building will be a
security hazard and be not allowed. The NDSF vide letter dated
February 01, 2017 approached the headquarter, Delhi Area (Land
Branch) requesting for issuance of NOC in favour of Nr.DMC.
Board of Officers vide order dated February 07, 2017 came to the
conclusion that the high rise building if allowed to be constructed
will pose a security threat to the Ordnance Depot. Furthermore,
the proceedings were submitted to the GOC, Delhi Area, who
vide directions dated March 28, 2017 held that NOC cannot be
given.
25. The DDA has also filed a counter affidavit stating that the
land admeasuring 3.0 Ha in Zone 4 and 5 facility centre
Pitampura was allotted to the NDSF vide letter dated May 22,
1996 and physical possession of the same was handed over to the
NDSF on June 26, 1996. As per the Zonal Development plan, the
plot in question is earmarked for Hospital.
26. No rejoinder affidavit has been filed by the NDSF to any
of the counter affidavits.
Submissions
27. Mr. R. Balasubramanian, learned counsel for the
Commandant apart from reiterating the stand taken in the writ
petition / counter affidavit, insofar as serious security
implications are concerned, submitted that the proposed high rise
hospital building is in very close vicinity and proximity to the
Ordnance Depot, Shakurbasti, a Military Establishment, and
would perennially endanger the latter's safety and security. He
submitted, national security and safety of the country and its
military establishments is of paramount importance. In the
prevailing security scenario especially, in view of the fact that
terrorists try to attack vital army establishments/ units with a
view to spread panic and terror amongst the populace, although
such attacks are successfully repulsed, there is an inherent danger
in allowing buildings including high rise buildings to come up
near military establishments in view of their potential threats to
the Units. Resultantly, such building(s) if allowed to exist/come
up unhindered without due regard to safety and security of the
military establishments, the same will be detrimental to larger
public interest. He submitted that with the advancement of
modern technology and sophisticated weaponry available to the
terrorists and anti national elements, allowing high rise buildings
to come up in close vicinity near military units may provide a
'billet' for perpetrators of anti national activities. Not only that it
may expose the Unit(s) to inherent danger from outside its
perimeter fence both vertically and horizontally, but it may also
facilitate deep surveillance/ intrusion into activities being carried
out inside the Unit from vantage points of such high rise
buildings. He submitted that Ordnance Depot, Shakur Basti is one
of the vital logistic installations catering the Indian Army in
general and the Western Command of the Indian Army in
particular. Due to security reasons the petitioner is unable to
place it on record the type of war like stores held by it in its
inventory. But suffice to state that it caters to logistic needs of
war like stores required by army about 700 Formations and Units
both in times of War and Peace. With such high risk inventory on
its stock, both in terms of volume and intensity, the petitioner can
ill afford to be lax in ensuring its safety and security both from
within the premises and outside its perimeter fencing. The
construction of high rise building if allowed to be completed, it
may facilitate security threat and direct observance of inside
activities of the Depot from vantage points of the building. He
submitted that the Commandant (petitioner in 6901/2017) has
already carried out a security audit of threat perceptions emerging
from such high rise buildings coming up in near vicinity. The
building is being constructed within 50 meters distance of the
boundary wall of the Depot.
28. On the aspect of guidelines issued by Ministry of
Defence, Government of India dated May 18, 2011, March 18,
2015 and October 21, 2016, he submitted, in terms of paragraph 1
(b) of the Guidelines issued by the Govt. of India, Ministry of
Defence dated May 18, 2011 where the Station Commander feels
that any construction coming up within 100 meter radius of a
defence establishment can be a security hazard, the Station
Commander may convey his views/objections to the local
municipality/State Government. The said guidelines dated May
18, 2011 further stipulate that in case of multistory building of
more than four storeys, the distance is extended to 500 meters
radius of the military establishment. Therefore, in the present
case, the proposed hospital building is admittedly more than four
storeys and hence the objections of Station Commander were
conveyed to the NCTD/ Nr. DMC. This position has been
reiterated by the Govt. of India, Ministry of Defence vide its
subsequent letter dated March 18, 2015. He submitted, in the
present case, admittedly initial sanction was accorded by GNCTD
/ Nr. DMC on July 08, 2013 and the revised plan sanction was
submitted by NDSF on October 08, 2015. Therefore, the
guidelines dated May 18, 2011 read with letter dated March 18,
2015 are fully attracted and applicable in present case. He
submitted, the contention of NDSF that by subsequent letter
dated October 01, 2016 the Govt. of India, Ministry of Defence
has relaxed the norms for grant of NOC and therefore, the earlier
guidelines dated May 18, 2011 stand amended and consequently
the NOC cannot be insisted upon is misconceived and
misleading. He submitted that the guidelines dated May 18, 2011
have not been superseded by subsequent letter dated October 21,
2016. In fact the letter dated October 21, 2016 makes reference
in first para itself to earlier letters on the subject issued by
Ministry of Defence, Govt. of India, including the guidelines
dated May 18, 2011. He submitted that the guidelines dated May
18, 2011 and subsequent letter dated October 21, 2016 have to be
read together and harmoniously construed keeping their objective
in mind i.e., safety and security of military establishments in
close vicinity of high rise buildings. It was further his
submission, the letter dated October 21, 2016 has only re-visited
the distance part of restrictions ie., horizontal distance from the
outer wall of the defence establishment from proposed
constructions in close vicinity. The letter dated October 21, 2016
has amended erstwhile distance from 100 meters to 10 meters in
so far as stations listed in Part A of the Annexure to the said
letter. However, the height restriction for multi-storied building
imposed vide guidelines dated May 18, 2011 has not at all been
interfered with by subsequent letter dated October 21, 2016 in so
far as stations listed in Part A of the Annexure.
29. It was the submission of the learned counsel for the
Commandant that the height restriction of the building shall apply
with effect from May 18, 2011 as clarified by subsequent letter
dated March 18, 2015 and at the time of grant of original sanction
on July 08, 2013 by respondent Nos. 1 to 3 as well as at the time
of submission of revised sanction plan by NDSF on October 08,
2015, the guidelines dated May 18, 2011 were very much in
force. Hence the NOC was required from Station Commander.
This is without prejudice to the submission that even by
subsequent letter dated October 21, 2016 the height restriction for
multistoried building of more than 4 storeys has not been taken
away. To contend that the communication dated October 21,
2016 has absolutely taken away the height restriction for building
beyond 10 meters in respect of stations listed in Part A of the
Annexure will lead to anomalous and inconsistent interpretation.
30. In so far as existence of other high rise buildings like one
high rise hotel building LA in close vicinity of Ordnance Depot,
Shakur Basti is concerned, learned counsel for the Commandant
submitted that the Commandant has filed its affidavit in
connected Writ Petition No. 9883 of 2017 explaining in detail the
steps taken by the army authorities objecting to construction of
Hotel LA coming up and the correspondence exchanged with
Govt of NCT and its agencies have been placed on record. It was
his submission, vide letters dated April 01, 2016, October 25,
2016, December 03, 2016 and February 04, 2017, the Municipal
Authorities were requested to intervene and direct the owner of
the Hotel to stop construction immediately as it was a serious
security threat. The matter was also reported to SHO PS,
Mangolpuri by OD Shakurbasti vide letter dated April 07, 2017
drawing the attention to prevalent security situation and security
threats and the police was requested to lodge an FIR for stopping
the construction work. That the army authorities also came to
know that the Police registered FIR No. 2887 on April 08, 2017
and that the construction work was stopped. That in the
meantime, the North Delhi Municipal Corporation vide its letter
dated May 16, 2017 intimated that Delhi Development Authority
is the custodian in the case as the land had been allotted to the
Hotel as well as the building plans were approved by the DDA.
Therefore, the DDA was approached by the Unit vide letter dated
May 31, 2017 to stop the construction work including
construction of road by the Hotel since it involved security of
military installation. That the DDA through its Deputy Director
(Building) intimated the Unit OD Shakurbasti vide letter dated
June 21, 2017 forwarding building plan of the Hotel and also
stated that the issue of completion certificate is on going process
and in case the Unit has any objection regarding issue of
completion certificate the same may be intimated. The DDA was
also requested vide letter dated June 24, 2017 not to issue
completion certificate to the Hotel LA.
31. As far as closing of Ordnance Depot is concerned,
learned counsel for the Commandant submitted that during the
course of hearing it was also submitted on behalf of NDSF that a
decision has been taken by the Govt. of India to close down some
of the Ordnance Depots including Ordnance Depot, Shakurbasti.
He submitted that no doubt some decision in principle has been
taken after filing of the writ petition to close down some Depots
including Ordnance Depot Shakurbasti. But that decision is yet to
fructify and it is still at initial stage. The decision is still at a
preliminary stage and it would be premature at this stage to say
anything in this regard. Therefore, the NDSF cannot contend at
this stage that the NOC cannot be insisted upon from army
authorities. In the end, it was his submission that the petitioner
(Commandant), at every stage had taken up the matter with
municipal authorities not to allow construction of high rise Hotel
building in close proximity of the defence unit. The petitioner has
followed uniform stand in the matter of taking action to safeguard
the safety and security of OD Shakurbasti from the security threat
from such high rise buildings in vicinity of the Unit. He seeks
the reliefs as prayed for in W.P.(C) 6901/2017
32. Mr. Arvind Nigam, learned Senior Counsel for the NDSF,
had submitted that NDSF with an intention to establish a
charitable hospital for the benefit of public in Delhi was allotted
the plot in question in the year 1996. The perpetual lease was
executed on June 02, 2015. As per the Zonal Development Plan,
the plot is meant for Hospital only. He submitted that the NDSF
had applied and got sewage / water / electricity connections.
Even NOC has been granted by the AAI with respect to height of
its project vide letter dated June 13, 2012. That apart, according
to him even DUAC granted permission for the project, so also the
Chief Fire Officer. The petitioner got sanction of building plan
with 100 FAR and height of 33.5 mtrs vide letter dated July 08,
2013 of Nr. DMC. According to him, vide notification dated
September 23, 2013, the Ministry of Urban Development notified
increase in the FAR from 100 to 375 for hospital land in Delhi,
wherein the area of the Hospital plot is more than 2.5 ha. The
NDSF had applied for sanction of revised building plans vide its
application dated October 08, 2015 for height of 45 mtrs and
FAR 150, (and 70 mtr considering its future expansion plans) but
the petitioner (NDSF) is now willing to construct the Hospital as
per sanctioned plans i.e 100 FAR with height of 33.5 mtr. He
also, by drawing my attention to the guidelines of 2011 and 2016,
submitted, that the guidelines of the year 2016 superseded the
guidelines of 2011 with regard to grant of NOC for building
construction. As per the guidelines of 2016, construction in
vicinity of Defence establishment / installations listed in Part A,
(Shakurbasti is at Serial No.144) shall require NOC from local
military authorities, if the subject construction is within 10 mtrs.
from the outer wall of such Defence establishment. According to
him, since the Hospital land in question is at a distance of
approximately 100 mtrs from the outer wall of the Ordnance
Depot, no NOC is required. He submitted that in one case of a
hotel building constructed by M/s LA Hotel and Retreats Pvt.
Ltd. at plot No. 43, Pitampura Delhi, the Completion Certificate
has been granted by the DDA. It was his submission that the
Hotel building is just adjacent to the Ordnance Depot, there is no
reason to deny NOC to the NDSF for construction of a Hospital
across the 45.0 mtrs. main approach road, between hospital and
boundary wall of the Ordnance Depot.
33. Mr. Nigam has also drawn my attention to a news item,
appeared in the Economic Times dated April 03, 2018, to contend
that a decision has been taken to shut down the Ordnance Depot
at Shakurbasti. The plea of the Commandant that, the
construction of a Hospital building shall be a security risk, shall
no more be valid. He stated that, the very basis for denying
NOC, shall cease to exist. It was also his submission, that the
Zonal Development Plan shows the site to be meant for Hospital,
and it is the Hospital only which can come up there. So, it shall
be appropriate that the NDSF is allowed to construct the Hospital,
which shall be in the larger public interest. In any case, the
Ordnance Depot deals with general clothing for the personnel and
as such the plea of breach of security shall be unsustainable. He
prays for grant of relief in W.P.(C) 9883/2017.
34. Mr. Ajjay Aroraa, learned counsel for the Nr. DMC has
reiterated the stand taken by the Corporation in its counter
affidavit.
35. Having heard the learned counsel for the parties, the
prayers sought for by the parties in these two writ petitions are,
diametrically opposite to each other, inasmuch as in W.P.(C)
6901/2017 the Commandant has sought for quashing of the
sanction accorded to the NDSF for construction of building at site
H-4/5, Facility Centre, Pitampura, Delhi and also a permanent
restraint order against NDSF from constructing a high rise
building. On the other hand, the prayer of NDSF in its writ
petition is for according a sanction of the revised Building Plans
at the same site without insisting or compelling the NDSF to
obtain NOC from the Commandant.
36. On facts, there is no dispute that the NDSF initially got
sanction of the plan with 100 FAR with height of 33.5 mtrs vide
letter dated July 08, 2013. It may be necessary to state here, that
it is the case of the Commandant, that in terms of the guidelines
of May 18, 2011, any construction of building of more than four
storeys coming up within a radius of 500 mtrs of the defence
establishment, the matter shall be referred to a higher authority by
the Station Commander for objection / views which will be then
conveyed to the State Government / Municipality. It is also the
case of the Commandant that the site of construction is a mere
47.06 mtrs from the boundary of the Ordnance Depot and
therefore, a prior NOC is required to be taken from local military
authority / defence establishment. It is also averred that no such
NOC, was taken from the Commandant when sanction of plans of
2013 were granted by Nr. DMC. The aforesaid stand of the
Commandant, appears to be right, as nothing has been placed on
record to show that NOC was granted / taken. In terms of the
guidelines of May 18, 2011 the requirement of NOC was in terms
of the following stipulation
(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.
37. In fact, it is the stand of the NDSF that the subject
building is 100 mtrs (letter dated April 03, 2017) away from the
Ordnance Depot. It is not the case of NDSF, that the building is
less than four storeys. So it follows, the NOC was required to be
taken by the Nr. DMC, before sanctioning the plans of NDSF.
38. Having said that, I note, it is pursuant to the notification
dated September 23, 2013 of the Ministry of Urban Development,
Govt. of India whereby the FAR was increased from 100 to 375
for Hospitals in Delhi, where the Hospital plot is more than 2.5
ha, the NDSF had applied for revised building plans vide its
application dated October 08, 2015. The NDSF had applied for
the height of 45 mtrs and FAR 150 in the revised drawings and
had applied for height clearance from AAI with a height
clearance of 70 mtr considering its future expansion plans. It is a
fact that NOC for the proposed hospital was declined by the
Commandant vide its letter dated December 10, 2016 on the
ground that it is a security hazard for Ordnance Depot,
Shakurbasti. It is to be seen whether this denial of NOC for
revised plans by the Commandant is justified. The parties have
referred to the guidelines of 2011, 2015 and 2016. Mr. Nigam
has stated that in terms of guidelines of 2016, which superseded
2011 guidelines the NDSF requires NOC, if the construction is
within 10 mtrs of the defence establishment and in this case since
the construction is beyond 10 mtrs, no NOC is required. Whereas
Mr. Balasubramanian's case is, guidelines of May 18, 2011, letter
of March 18, 2015 and guidelines of October 21, 2016 have to be
read together, as the height restriction as existed in the guidelines
of 2011 has not been interfered with / amended. In other words,
in the guidelines of 2016, the height restriction of four storeys has
not been taken away, and the building beyond four storeys cannot
come up within a radius of 500 mtrs.
39. In order to appreciate the submission, it is necessary to
reproduce the guidelines of 2011, contents of letter dated March
18, 2015 and the guidelines of 2016.
"New Delhi, dated 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 Commandar to the local
municipality or State Government agencies and shall
be given directly to private parties/builders under any
circumstances.
(d) NOC once issued will not be withdrawn without
the approval of the Service.
2. These instructions will not apply where
constructions are regulated by the of the existing
acts/notification viz., Cantonments Act, 2006, Air Craft
Act 1934, Gazette Notification SO 84(E) dated
14.01.2011 (as revised from time to works of Defence
Act 1SG3. etc. in such cases provisions of the
concerned (Notification) will continue to prevail."
"New Delhi, dated 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."
"New Delhi, dated 18th March 2015
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'.
I am directed to refer to circular of even number dated
18.05.2011 vide which guidelines for issue of 'No
Objection Certificate (NOC) for building
constructions' were issued. Following the issue of the
guidelines representations and references have been
received with regard to restrictions placed by these
guidelines on building construction in the vicinity of
Defence Establishments. It was therefore decided to
undertake a comprehensive review of the guidelines so
as to address issues that had arisen from the
implementation of the guidelines.
2. The recommendations arising from the review
undertaken have been duly considered by the Ministry
and it has been decided to modify the aforementioned
Circular dated 18.05.2011 by adding a proviso under
para 1(b) to the effect that NOC from LMA/Defence
Establishment would not be required in respect of a
construction for which permission had been issued by
the competent local municipal authority prior to
18.05.2011 (date of circular). However, this proviso
shall not apply to any amendment to the said
construction permission with regard to height, if such
amendment has been allowed after 18.05.2011.
3. The other provisions of the circular dated
18.05.2011 will remain unchanged."
40. Having noted the guidelines / instructions, I must state
that the argument of Mr. Subramanium appears to be appealing
on a first blush, but on a deeper consideration, it is seen that, the
guidelines of October 21, 2016 have been issued because of
representations received from the elected representatives to
review the guidelines of 2011, as difficulties are being faced by
public in constructing building on their own and pending
amendments to works of Defence Act, 1903, the Government
decided to amend the guidelines of May 18, 2011 read with letter
dated March 18, 2015. So it is clear, that guidelines of October
21, 2016 were issued as amendment to the guidelines of 2011 /
2015. I may state here, the guidelines of 2011 inter alia stipulates
any construction coming up within 100 mtrs (for multistory
building of more than four storeys, the distance shall be 500 mtrs)
requires NOC from the Station Commander. But in the
guidelines of 2016, the words "for multistory building of more
than four storeys the distance shall be 500 mtrs" are missing.
The endevour of Mr. Subramanian is to contend that, by
implication the said words must be read in 2(a) of the guidelines
of 2016. I am afraid such a plea cannot be accepted. The Clause
2(a) of 2016 guidelines only stipulates a restriction of 10 mtrs
with regard to installations located at 193 stations as listed in Part
A of Annexure to the circular that too, to maintain a clear line of
sight for effective surveillance. There is nothing in the circular to
show any restriction has been put for construction beyond 10
mtrs. In other words, the words "for multistory building of more
than four storeys the distance shall be 500 mtrs" have not been
stipulated in the guidelines of 2016, which have been framed as
amendment to 2011/2015 guidelines. Further the words 'Any
construction or repair activity within such restricted zone of 10
mtrs will require prior No Objection Certificate (NOC) from the
Local Military Authority (LMA) / Defence Establishments" also
throw light, that construction activity beyond 10 mtrs without
height restriction is permissible. If the Authority intended to put
any restriction on the height, it would have specified so, as was
done in Clause 2(b) of the guidelines dated October 21, 2016.
The effect of the amendment is that it shall replace the old
guidelines of 2011/2015 and shall continue to govern the issue of
NOC for building construction, w.e.f October 21, 2016. So, the
construction of building above four storeys beyond 10 mtrs. is
permissible. In fact, this is how the Commandant has also, read
the guidelines to mean. This I say so, as pointed by Mr. Nigam
that, the Commandant has not objected to the construction of a
Hotel, with nine floors of a height of 36 mtrs. The Commandant
has given some justification as to what action he has taken on
such construction. But the fact is, the Hotel is in place and a
Completion Certificate has been issued to the Hotel. So, the plea
of Mr. Balasubramanian is without any merit and is rejected.
41. That apart, during the course of his submissions, Mr.
Nigam had submitted that a decision has been taken by the
Authority concerned to close down the Ordnance Depot, Shakur
Basti. In other words, the very basis for not allowing the NDSF
to make the construction of the building would no more exist.
42. On the other hand, Mr. Subramanian conceded to the fact
that some decision has been taken in principle after the filing of
the writ petition to close down some depots including the
Ordnance Depot, Shakur Basti. The said decision is yet to
fructify and it is still at initial stage. In other words, it is
premature at this stage to say anything in that regard.
43. From the submission of Mr. Subramanian, it is clear that
such a move is on in the Ministry of Defence. In any case, the
said plea would not be necessary to be gone into, in view of my
above finding on the guidelines of 2016.
44. I may clarify here that the sanctioning of plans by Nr.
DMC in 2013 even though was not in accordance with the
guidelines of 2011 as the construction of building in question has
to be more than four storeys and construction of building beyond
four storeys within 500 mtrs was impermissible but in view of the
later amendment of the said guidelines in the year 2016 without
such a stipulation, today the relief as sought for by the
Commandant challenging the sanction plans by Nr. DMC shall be
unsustainable and as such the relief prayed for in W.P.(C)
6901/2017 cannot be granted. The writ petition is liable to be
dismissed. Ordered accordingly. The W.P.(C) 9883/2017 is
allowed by declaring the Commandant cannot insist on NOC be
taken from defence establishment by NDSF for making
construction of building at Site No.2, Zone H-4/5, Facility
Center, Pitampura, Delhi-110034.
No costs.
CM No. 28665/2017 (for stay) in W.P.(C) 6901/2017
CM Nos. 40283/2017 (for interim directions) in W.P.(C) 9883/2017
Dismissed as infructuous.
V. KAMESWAR RAO, J
JANUARY 11, 2019/jg/ak
