Jharkhand High Court
Union Of India Through Major ... vs Ranchi Municipal Corporation ... on 5 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.C. No. 2573 of 2022
----
Union of India through Major Bhupesh Bairagi .....Petitioner
Versus
1. Ranchi Municipal Corporation through its Commissioner, officiating from his
office at New RMC Building, opposite office of the Commissioner, Kotwali,
Ranchi.
2. Chalice Real Estate LLP, through its Managing Partner having his residence
at Diamond Prestige, Leverl-1, Suite-113, Taltala, 41A, P.O. P.S Acharya
Jagdish Chandra Bose Road, Dist-Kolkatta W.B.-700017.
....Respondents
With
W.P.C. No.788 of 2022
Union of India, Ministry of Defence represented through Capt. Ravi Kumar.
............Petitioner
Versus
1. The State of Jharkhand.
2. The Deputy Commissioner, Ranchi.
3. The Municipal Commissioner, Ranchi Municipal Corporation, Kutchery Road,
Ranchi.
4. The Estate Officer, Ranchi Regional Development Authority, Kutchery Road,
Ranchi.
5. NCC Urban Infrastructure Limited, Sector-4, Block-6, 1st floor, NGHC
Khelgaon, Hotwar, Ranchi.
.........Respondents
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Coram: THE HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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In WPC No. 2573 of 2022
For the Petitioner : Mr. Anil Kumar, Addl.SGI
: Mr. Prabhat Kumar Sinha, Advocate
For the State : Mr. Sachin Kumar, AAG-II
For the Respondent No. 1 : Mr. L.C.N. Sahdeo, Advocate
For the Respondent No. 2 : Mr. Sumeet Gadodia, Advocate
In WPC No. 788 of 2022
For the Petitioner : Mr. Anil Kumar, Addl.SGI
: Mr. Prabhat Kumar Sinha, Advocate
For the State : Mr. Sachin Kumar, AAG-II
For Respondent No. 3 : Mr. L.C.N. Sahdeo, Advocate
For Respondent no. 4 : Mr. Soumitra Baroi, Advocate
For Respondent no. 5 : Mr. Shailesh Kumar Singh, Advocate
--------
09/5/04.2023 Heard Mr. Anil Kumar, learned Additional Solicitor General of India,
assisted by Mr. Prabhat Kumar Sinha, learned Central Govt. Counsel for the
petitioner in both the cases, Mr. Sachin Kumar, learned AAG-II, Mr. Sumeet
Gadodia, learned counsel appearing for the Respondent No. 2 and Mr. L.C.N.
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WPC No. 788 of 2022
Sahdeo, learned counsel appearing for the respondent no. 1 in WPC No. 2573
of 2022 as well as Mr. Sachin Kumar, learned AAG-II for the Respondent Nos. 1
and 2, Mr. L.C.N. Sahdeo, learned counsel for the respondent no. 3, Mr.
Soumitra Baroi, learned counsel for the respondent no. 4 and Mr. Shailesh
Kumar Singh, learned counsel appearing for the respondent no. 5 in WPC No.
788 2022.
2. Since in both these writ petitions, a common question of law is involved,
the same are being disposed of by this common order.
3. In WPC No. 2753 of 2022, the petitioner has prayed for an appropriate
writ upon the respondents directing them to take steps for the demolition of the
multistoried building being constructed near Gymkhana Club, Ranchi in close
vicinity of Dipatoli Military Station as the same has been constructed in violation
of the Works of Defence Act, 1903 as the respondent no. 2 has failed to take any
No Objection Certificate from the petitioner as per Notification
No.11026/2/2011/D(Lands) dated 18.5.2011, which has resulted in a serious
threat to the army establishment at Dipatoli, Ranchi. The petitioner has further
prayed for a direction upon respondent no. 2 to stop any further construction
activity of the building being constructed near Gymkhana Club, Ranchi in close
vicinity of Dipatoli Military Station.
4. The factual aspects of WPC No. 2753 of 2022 reveal that respondent
no. 2 is currently engaged in the construction of a multistoried building near
Gymkhana Club, Ranchi. The said building is located near 500 meters of the
military installation "Dipatoli Military Station". It has been averred that the military
installation is crucial to the national security of the country as it houses several
military personnel, vehicles, munitions and other equipments, the movement of
which has to be kept confidential and the building shadows the military station.
The building being constructed by the respondent no. 2 directly overlooks the
military station thus making it susceptible to spying as well as endangering the
life of the troops and other officers. On account of such vulnerability and the
imminent threat it possesses the petitioner had come out with a Notification
bearing no. 11026/2/2011/D(Lands) dated 18.5.2011 wherein it was envisaged
that no construction activity could be undertaken within 100 meters from the
boundary wall of the defence area and from 100 meters to 500 meters structures
of more than four storied can be constructed after obtaining No Objection
Certificate. This Guideline was subjected to modification vide Guideline dated
21.10.2016 wherein it was decided that No Objection Certificate would be
required when the structure is less than 10 meters from the military installation
but this recommendation was placed under review vide Guideline dated
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WPC No. 788 of 2022
20.2.2020. It has been stated that vide Guideline No. 35243/85/Land(Policy and
AMC) dated 6.10.2020 it was decided that until such time, a decision is taken
the earlier Guideline i.e. Guideline dated 18.5.2011 along with the corrigendum
dated 17.11.2015 shall be effective.
5. The grievance of the petitioner was brought to the knowledge of the
respondent no.1 through several representations which were not acted upon and
which constrained the petitioner to approach this Court in its writ jurisdiction.
6. In the counter affidavit filed by the respondent no. 2, it has been stated
that the respondent no. 2 had purchased 950.37 decimals of land vide Sale Deed
no. 6344 dated 14.9.2016, Sale Deed no. 5248 dated 5.8.2016 and Sale Deed
no. 3709 dated 8.6.2016 and the lands were mutated in the name of respondent
no. 2. After purchasing the land, sanction was granted by the respondent no. 1
(Ranchi Municipal Corporation) for construction of a four storied commercial
building vide order contained in Memo No. RMC/BP/0015/W06/2017 dated
4.2.1990. For the residential building, sanction plan for 13 storied building was
approved by the respondent no. 1 vide order as contained in Memo No. R
MC/BP/0124/W06/2018 dated 2.2.2019. It has been claimed that an amount of
Rs.168 crores has been invested by the respondent no. 2 in the construction of
commercial and residential building apart from obtaining loan from the
nationalized banks to the tune of Rs.116 crores. It has been stated that the
respondent no. 2 had also entered into an agreement for sale with prospective
buyers and has also received some amounts as advance. So far as the
commercial building is concerned, advances have been taken from reputed
brands who are inclined in setting up shops.
7. It is the case of the respondent no. 2 that Dipatoli Military Station is
enlisted in Part 'A' of the annexure of the Guideline dated 21.10.2016 vide serial
no. 181 and it does not provide for any restriction or requirement of obtaining
NOC from the local Military Authority if the construction is made beyond 10
meters from the outer wall of such military installation.
8. In WPC No. 788 of 2022, the petitioner has prayed for a direction upon
the respondent concerned to immediately and forthwith stop the construction
being made by the respondent no.5 at Khelgaon within the vicinity of defence
establishment without obtaining No Objection Certificate as per defence letter
No. 11026/2/2011/D (Land) dated 18.5.2011 issued under the provisions of the
Works of Defence Act, 1903 as the same is against the national security. A further
direction has been sought for to hold and declare the building plan sanctioned
by the respondent no. 3 as illegal and a nullity in the eye of law.
9. It has been stated in WPC No. 788 of 2022 that the respondent no. 5
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WPC No. 788 of 2022
has started construction of multi storied residential building in the vicinity of
Dipatoli Cantonment, which is in violation of the Govt. Guideline as contained in
letter no. 11026/2/2011/D(Lands) dated 18.5.2011. On an information received
from the Watch and Ward Unit 523 ASC Battalion that the respondent no. 5 has
started clearance work near the parameter fencing of Dipatoli Cantonment
between Botanical Garden and Cockerel Officers Institute, the representative of
the defence unit visited the office of respondent no. 5 and the respondent no. 5
had intimated that the firm has an agreement with Government of Jharkhand to
construct a residential complex at Khelgaon. Communication was made to the
respondent no. 2 to issue suitable instruction to respondent no. 5 to stop
construction activity and obtain a No Objection Certificate from the local military
authority. In spite of repeated correspondences being made by the Watch and
Ward Unit 523 ASC Battalion and Local Military Authority to respondent nos. 2,
3 and 5 the unauthorized construction was not stopped by the respondent no. 5
thus prompting the writ petitioner to prefer the present writ petition.
10. In the counter affidavit filed on behalf of respondent no. 5, it has been
stated that for preparation of 34th National Games, 2007, which was to be hosted
at Ranchi by the State Government, a modern self-contained township was to
be constructed at Ranchi with private sector participation on commercial format.
This was named as National Games Housing Complex (NGHC), which was to
be located on a 56 acres site near National Highway 33 at Hotwar in close
proximity to Dipatoli Cantonment. The Secretary, Department of Arts, Culture,
Sports & Youth Affairs, Govt. of Jharkhand, Ranchi vide letter dated 22.02.06
handed over approximately 56 acres of land for the said purpose to the
respondent no. 5. The map was approved by RRDA for the entire area and as
per respondent no. 5, the required number of housing complex was successfully
completed. The rest part of the developed area is still to be completed in a phase
wise manner and for which construction work has been undertaken in
accordance with the approved plan. Mention has also been made about the
numerous communications between various stakeholders for resolving the
issue.
11. Mr. Anil Kumar, learned Additional Solicitor General of India, has
primarily based his submission on the various
Circulars/Notifications/Instructions/Guidelines issued from time to time by the
Govt. of India and the construction activities carried on by the respondent no. 2
in WPC No. 2573 of 2022 and respondent no. 5 in WPC No. 788 of 2022 are
dehors such Circulars/Notifications/Instructions/Guidelines. It has been
submitted that instructions have been issued from time to time in order to prevent
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WPC No. 788 of 2022
construction activity near the periphery of the defence establishment. He has
referred to the Guidelines dated 18.5.2011 specially clause (b) which lays down
the steps to be taken for any construction coming up within 100 meters and for
multi storied building of more than four storeyes, the distance of 500 meters
which can be a security hazard for the defence establishment. Learned ASGI
has submitted that the Guidelines dated 18.5.2011 was amended to the effect
that No Objection Certificate shall not be required if permission for construction
has already been issued by the local municipal authority prior to 18.5.2011. He
has submitted that a fresh Guideline was issued on 21.10.2016, in which two
categories were created, Part 'A' and Part 'B' in respect to defence
establishment/installation and Part 'A' contained 193 military stations which
includes Ranchi Military Station at serial no. 181 and Part 'A' provides for
requirement of NOC for carrying out construction activities within ten meters from
the outer wall of the defence establishment. Mr. Anil Kumar has also submitted
that subsequently the same was clarified on 6.10.2020 as the Guideline of 21.10.
2016 had not been accepted by the Army as the same had been issued by the
Ministry of Defence without taking security concerns of the Army into account
thus reviewing the Guidelines dated 18.5.2011. Another Guideline was issued
on 23.12.2022 in supersession of the Guideline dated 18.5.2011 and 21.10.2016
though the same has been subsequently kept in abeyance by virtue of
communication dated 23.2.2023. According to Mr. Anil Kumar, the Guideline
dated 18.5.2011 read with the Guideline dated 21.10.2016 shall prevail and in
both the writ petitions since the respondent. 2 and 5 are carrying on their
construction activity within a distance of 100 meters from the defence
establishment, a No Objection Certificate is a mandatory requirement and thus
such construction activity is not under a valid sanctity of law.
12. The submissions advanced by the learned ASGI has been separately
countered by the learned counsels for the respondent no. 2 and respondent no.
5 in their respective writ petitions.
13. Mr. Sumeet Gadodia, learned counsel appearing for the respondent
no. 2 in WPC No. 2573 of 2022 has submitted that as per the Guideline dated
18.5.2011 which contemplates two situations, the case of the respondent no. 2
falls within the second zone, which does not mandate NOC from the Station
Commander as in the Municipal Act of 2011 there is no provision, which requires
consultation with the Station Commander of a Military Station before a building
plan is approved. Submission has been advanced that the petitioner neither has
filed any document or has averred in the writ petition to substantiate the security
hazard contemplated on account of the upcoming construction activity. He has
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WPC No. 788 of 2022
also submitted that several establishments/complexes have sprung up near the
vicinity of the defence establishment which though has evoked no response from
the petitioner. Mr. Gadodia has submitted that the Guideline dated 18.5.2011 has
subsequently been amended vide Guideline dated 21.10.2016 wherein a No
Objection Certificate for carrying out construction activity in the vicinity of the
Military Stations enlisted in part A of the Annexure-2 to the Guideline dated
21.10.2016, which also includes Ranchi Military Station has been restricted up
to 10 meters. On 20.2.2020, the Ministry of Defence had issued clarification that
the Guideline dated 21.10.2016 is under review. The building plan was
sanctioned by the Ranchi Municipal Corporation in favour of respondent no. 2
on 4.2.2019 while the plan for the residential building was sanctioned on
2.2.2019 which were during the period when the Guideline dated 21.10.2016
was in operation. It has been submitted that by virtue of the issuance of the
Guideline dated 21.10.2016, the earlier guideline dated 18.5.2011 stands
amended and the requirement of No Objection Certificate was restricted to within
10 meters of the boundary wall of the defence establishment. So far as the
Guideline dated 23.12.2022 is concerned the same according to Mr. Gadodia is
prospective in nature and shall have no capability to obliterate the act which has
already been undertaken. Mr. Gadodia has also submitted that even if it is
assumed that the Guideline dated 23.12.2022 is applicable, the same would also
not frustrate the endeavor of respondent no. 2 as the building being constructed
is beyond 50 meters of the outer wall of the Military Establishment. He therefore
submits that in either of the situation the writ petitioner do not have a case for
interference.
14. Mr. Shailesh Kumar Singh, learned counsel appearing for the
respondent no. 5 in WPC No. 788 of 2022 has apart from the various Guidelines
issued from time to time also referred to the relevant provisions of the Works of
Defence Act, 1903, more notably to section 3 and section 7 while submitting that
the petitioner has failed to bring on record the gazette notification, which is
mandated when restrictions are imposed as per the provisions of the said Act.
The claim of the petitioner as per Mr. Singh is predominantly based on the
Guideline dated 18.5.2011 being oblivious to the fact that the said Guideline has
been watered down considerably by virtue of issuance of Guideline dated
21.10.2016. Mr. Singh has further submitted that the sanction of the building plan
was granted by the competent authority in the year 2007 much prior to the
existence of the Guideline dated 18.5.2011 and the buildings have been
constructed by the respondent no. 5 for the National Games without there being
any objection from any corner whatsoever.
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WPC No. 788 of 2022
15. The other necessary parties to the writ petition have also been heard.
16. The entire imbroglio seems to be on account of the initial Guideline
dated 18.5.2011 and its amendment by the subsequent Guideline dated
21.10.2016. The petitioner has canvassed its case by stressing on the joint
applicability of the Guidelines dated 18.5.2011 as well as 21.10.2016. To
decipher the extent and purport of both the Guidelines, the same are given a
visit by the Court. In the Guideline dated 18.5.2011, issued by the Ministry of
Defence the same contemplates two circumstances for issuance of No Objection
Certificate for building construction. Clause (a) of the said Guideline
concentrates on a situation where local municipal laws require consultation with
the Station Commander before the building plan is approved and the
fundamentals which has to be followed in such circumstances. Clause (b) whose
applicability in both the writ petitions has been sought to be generated, deals
with the circumstances when the local municipal laws does not mandate
consultation with the Station Commander. Even in such cases, if the Station
Commander feels that any construction coming up within 100 meters (for
constructing building of more than four stories, the distance shall be 500 meters),
of the radius of the defence establishment can be a security hazard it should
refer the matter immediately to the next higher authority in the chain of
command. In case the next higher authority is also so convinced the Station
Commander may convey its objection/views to the local municipality or State
Govt. agencies and if the municipal authority/State Govt. do not take cognizance
the matter can thereafter be taken up with the higher authority. As per clause (c)
Objection/Views/NOC shall not be given by any authority other than the Station
Commander to the local municipality or the State Govt. agencies and shall not
be given directly to private parties/builders under any circumstances. The
Guideline dated 18.5.2011, has subsequently been modified on 18.3.2015 by
adding a proviso to para 1 (b) of non-requirement of NOC from LMA/Defence
Establishment in respect of a construction for which permission has been issued
by the competent local municipal authority prior to 18.5.2011. The Guideline of
18.5.2011 was once again amended by adding a second proviso under para 1(b)
vide Communication dated 17.11.2015.
17. Since difficulties were being faced by the public in constructing
buildings on their own land and in view of the large number of representations
received from elected representatives the same caused issuance of a Guideline
dated 21.10.2016 incorporating therein the reasons for such amendment and
clause (a) and (b) reads as follows:-
a) Security restrictions in respect of Defence
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WPC No. 788 of 2022
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."
18. In the said Guideline, the defence Establishment/installation have been
categorized into two parts, Part A and Part B. The Annexure as at Part A to the
Guidelines incorporates Ranchi Military Station at serial no. 181. Therefore only
clause (a) would be applicable to the facts of the present case. The requirement
of a No Objection Certificate in case of a construction activity carried on would
arise only when such construction or repair activity is being done within the
restricted area of 10 meters. The restriction of 100 meters as per Guideline dated
18.5.2011 was tempered down to 10 meters as per the fresh Guidelines. Though
clause (b) imposes a height restriction but no such restriction is contemplated in
clause (a) of the said Guideline. Admittedly the respondent no. 2 and 5 are
carrying on their construction activity beyond 10 meters from the outer wall of
the Defence establishment i.e. Ranchi Military Station.
19. In the case of The Commandant, Ordnance Depot Vs. The Kolkata
Municipal Corporation and others in WPA No. 13756 of 2021 a similar issue
was under consideration and the conflicts between Guidelines dated 18.5.2011
and 21.10.2006 created was also considered and it has been held as follows:-
"74. If the intention of the Ministry of Defence was to continue with the
height restrictions of three storeys upto 500 metres, in that case, like
the other provision of Paragraph 1(a) of 2011 circular which have been
specifically incorporated in the circular dated October 21, 2016 under
paragraphs 3 and 4 thereof, the said height restriction, would have
also been incorporated. The intention of the Ministry of Defence was
to substitute the entire circular dated May 18, 2011, along with the
amendments and formulate new guidelines upon review of the entire
issue, afresh. The object was to temper down the earlier restriction in
order to enable the public to enjoy their property which were situated
within close proximity of defence establishments. The guidelines of
2011 was reviewed on public demand.
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
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WPC No. 788 of 2022
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.
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 the defence
establishments under Part A, is not a correct interpretation. The
amending circular of 2016 46 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."
20. In Union of India Vs. GNCT of Delhi and others reported in 2019
SCC OnLine Del 6477, it has been held as follows:-
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
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WPC No. 788 of 2022
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.
21. The view taken by the Delhi High Court has been followed by the
Gauhati High Court in the case of Dr. N. Sahewalla and Company Pvt. Ltd. Vs.
The Union of India & Others in WP© No. 4153 of 2022 wherein it has been
held as follows:-
"22. Situated thus, I am not inclined to accept the stand of the
respondents' counsel that the construction of multistoried building
raised by the petitioner company beyond the limit of 10 meters from
the outer wall of the defence installation/establishment could not have
been raised without prior NOC from the respondent nos. 4 and 5."
22. Mr. Gadodia in course of his submission has referred to the case of
Union of India Vs. Glaxo India Limited and Another reported in (2011) 6 SCC
668 wherein it has been held as follows:-
"45. In Syed Mustafa Mohamed Ghouse v. State of Mysore, the Sugar
(Movement Control) Order, 1959 of 6-11-1959 was passed in
supersession of the Sugar (Movement Control) Order, 1959, dated 27-
7-1959. It was held that in law "supersession" has not the same effect
as repeal and proceedings of a superseded order can be commenced.
In R.S. Anand Behari Lal v. United Provinces Govt, it was held that in
case of supersession of a notification, the objections and liabilities
accrued and incurred under the earlier notification remain unaffected,
since the supersession will be effected from the date of second
notification and not retrospectively, so as to abrogate the earlier
notification from the date of its commencement".
23. The reliance placed by Mr. Gadodia in the aforesaid judgment was in
response to the Guideline dated 23.12.2022 and its applicability/non applicability
from a retrospective date which has been answered in the said judgement.
Irrespective of the presence of the Guideline dated 23.12.2022, the case of the
respondent no. 2 in WPC No. 2573 of 2022 shall be governed by the Guideline
dated 21.10.2016. In Union of India Vs. G & CT of Delhi & Others (Supra), it has
already been noticed that the effect of amendment will be replacing the old
Guideline of 2011/2015 and the issue of NOC for building construction shall be
governed by the Guideline dated 21.10.2016 with effect from 21.10.2016.
24. The respondent no. 2 in WPC No. 2573 of 2022 continued to be
governed by the Guideline dated 21.10.2016, which was in operation when the
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WPC No. 788 of 2022
plan for commercial structure and residential building were sanctioned in the
year 2019 which also did not require a No Objection Certificate from the Station
Commander in absence of any provision thereto in the municipal laws and it also
did not envisage any height restriction since Ranchi Military Station was enlisted
in Part A of the Annexure to the Guideline dated 21.10.2016.
25. So far as the respondent no. 5 in WPC No. 788 of 2022 is concerned,
the building plans were sanctioned prior to coming into existence of the Guideline
dated 18.5.2011 and the respondent no. 5 was also involved in phase wise
construction but the petitioner had never raised any objection and /or ventilated
its grievance to the authorities in the recent past.
26. In neither of the writ petitions the petitioner has been able to
demonstrate any irregularity or illegality in the grant of sanction for commercial
and building construction by the concerned authority to the respondent no. 2 and
respondent no. 5 in their respective writ petitions in the backdrop of the
Guidelines issued from time to time especially Guideline dated 21.10.2016 and
consequently having found no merit in these writ petitions, the same are hereby
dismissed.
Pending I.As, if any, stand disposed of.
(Rongon Mukhopadhyay,J)
Rakesh/-
