Jharkhand High Court
Union Of India Through Captain Sushmita ... vs Ranchi Municipal Corporation on 21 March, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
-1- LPA Nos.327 & 328 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.327 of 2023
----
Union of India through Captain Sushmita Banerjee
Daughter of Mr. Shyamal Banerjee, authorised by
competent Authority of Defence Forces, currently posted
as Quartermaster, 523 ACS Battalaion, aged about 29
years, resident of Dipatoli Cantonment, P.O.-Dipatoli, P.S.-
Sadar, District-Ranchi ... ... Petitioner/Appellant
Versus
1. Ranchi Municipal Corporation, through its
commissioner officiating from his office at New RMC
Building, Opposite Office of the Commissioner, Kutchery
Chowk, P.O.-Kotwali, P.S.-G.P.O., District-Ranchi
2. Chalice Real Estate LLP, through its Managing
Partner, age not known the Appellant, having his residence
at Diamond Prestige, Level-I, Suite-113,, Taltala, 41A, P.O.
& P.S.-Acharya Jagadish Chandar Bose Road, District-
Kolkata, W.C. 700017... ... Respondents/Respondents
With
L.P.A. No.328 of 2023
----
Union of India through Captain Sushmita Banerjee
Daughter of Mr. Shyamal Banerjee, authorized by
competent Authority of Defence Forces, currently posted
as Quartermaster, 523 ACS Battalaion, aged about 29
years, resident of Dipatoli Cantonment, P.O.-Dipatoli, P.S.-
Sadar, District-Ranchi ... ... Petitioner/Appellant
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Ranchi, Kutchery Road,
Samaharnalya Block, Post GPO, Police Station Sadar,
District Ranchi
3. The Municipal Commissioner, Ranchi Municipal
Corporation, Kutchery Road, Deputy Para Ahirtoli, Post
GPO, Police Station Sadar, District Ranchi
-2- LPA Nos.327 & 328 of 2023
4. The Estate Officer, Ranchi Regional Development
Authority, Pragati Sadan, Kutchery Road, Post GPO, Police
Station Sadar, District Ranchi
5. NCC Urban Infrastructure Limited, Sector-4, Block-6,
1st Floor, NGHCKhelgaon, Hotwar, Post Hotwar, Police
Station Khelgaon, District Ranchi
... ... Respondents/Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
------
For the Appellant : Mr. Sunil Kumar, Advocate
Mr. Gautam Kr. Pandey, Advocate
(In both the cases)
For the Respondents: Mr. Sumeet Gadodia, Advocate
(In LPA. No.327/2023)
: Mr. Shailesh Kr. Singh, Advocate
: Mr. Deepak Kumar, Advocate
: Mr. Ravi Prakash Mishra, Advocate
(In LPA No.328/2023)
For the R.M.C. : Mr. L.C.N. Shahdeo, Advocate
(In both the cases)
--------
C.A.V. on 15.02.2024 Pronounced on 21.03.2024
Per Sujit Narayan Prasad, J.
1. Since the common order passed in W.P.(C) No.2573 of 2022 and W.P.(C) No.788 of 2022 by the learned Single Judge has been challenged in these appeals, therefore, the instant appeals are being disposed of by this common order. Prayer
2. The instant intra-court appeals preferred under Clause-10 of Letters Patent is directed against the order/judgment dated 05.04.2023 passed by the learned Single Judge of this Court in W.P.(C) No.2573 of 2022 & W.P.(C) No.788 of 2022, whereby and whereunder, while dismissing the writ petitions, it has been observed that none of the writ petitioners, has been able
-3- LPA Nos.327 & 328 of 2023 to demonstrate any irregularity nor any illegality in 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.
3. Since in both the appeals (L.P.A. 327 of 2023 and 328 of 2023 arising out of W.P.(C) No.2573 of 2022 & W.P.(C) No.788 of 2022 respectively) the factual aspects are different and hence, the same are being dealt with separately. Facts L.P.A. No.327 of 2023
4. The brief facts of the instant case, as per the pleading made in the writ petition being W.P.(C) No.2573 of 2022 is 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".
5. It has been averred that the military installation is crucial to the national security of the country as it houses several military personnel, vehicles, ammunitions and other equipment, the movement of which has to be kept confidential and the building shadows the military station.
6. 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
-4- LPA Nos.327 & 328 of 2023 troops and other officers. On account of such vulnerability and the imminent threat, 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 (NOC).
7. 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. 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.
8. It is the case of the petitioner that the grievances of the petitioner were brought to the knowledge of the respondents through several representations, which were not acted upon, therefore, the writ petition was preferred but the same was dismissed vide order dated 05.04.2023 by the learned single Judge of this Court. Hence, the instant appeal. L.P.A. No.328 of 2023
9. The brief facts of the instant case, as per the pleading made in the writ petition being W.P.(C) No.788 of 2022 is that
-5- LPA Nos.327 & 328 of 2023 the respondent no.5 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.
10. An information received to Station Head Quarter, Ranchi 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'.
11. A 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, hence, the writ petition was filed but the same was dismissed by the learned single Judge of this Court vide order dated 05.04.2023. Hence, the instant appeal.
12. The appellant of L.P.A. No.327 of 2023, preferred writ petition being W.P.(C) No.2573 of 2022 before this Court by invoking the jurisdiction conferred under Article 226 of the
-6- LPA Nos.327 & 328 of 2023 Constitution of India inter-alia for the following reliefs:-
(a) For the issuance of an appropriate writ(s), order(s) or direction(s) upon the Respondent(s) directing them to take appropriate steps for the demolition of the multi-storied building being constructed near the Gymkhana Club, Ranchi in close vicinity of Dipatoli Military Station as the same has been constructed in violation to the Works of Defence Act, 1903 as the Respondent No. 3 has failed to taken any No-Objection Certificate from the Petitioner as per Notification 11026/2/2011/D(Lands) No. dated 18th of May 2011, which has resulted in serious threat to the Army Establishment at Dipatoli, Ranchi.
(b) For the issuance of an appropriate writ(s), order(s) or direction(s) Respondent(s) upon the especially Respondent No. 3, to stop any further construction activity of the Building being constructed near Gymkhana Club, Ranchi in close vicinity of Dipatoli Military Station as the construction is being done in violation of the Works of Defence Act, 1903, as the same is being constructed in violation to the Works of Defence Act, 1903 in absence of any No- Objection Certificate from the Petitioner as per Notification No. 11026/2/2011/D(Lands) 18th of May 2011.
-7- LPA Nos.327 & 328 of 2023
(c) For the issuance of such other writ(s), order(s), or direction(s) as this Hon'ble Court may think just and proper in the facts and circumstances of the case doing conscionable justice to the petitioner.
13. The appellant of L.P.A. No.328 of 2023, preferred writ petition being W.P.(C) No.788 of 2022 before this Court by invoking the jurisdiction conferred under Article 226 of the Constitution of India inter-alia for the following reliefs:-
(a) For issuance of a Writ or in the nature of Mandamus commanding upon the respondents concern to immediately and forthwith stop the construction being made by the N.C.C Urban Limited at Khelgaon (Respondent No. 5) within vicinity of defence establishment without obtaining No Objection Certificate (NOC) as per defence Letter No. 11026/2/2011/D (Land) Dated 18/05/2011 issued under the provisions of The Works Of Defence Act, 1903 as the same is against the national security.
(b) For issuance of an appropriate Writ/Rule/Order/ Direction as Your Lordships may deem fit and proper to declare and hold, after calling the file concerning sanction of building plan of Khelgoan of Respondent No. 5, that building plan sanctioned by Ranchi Municipal Corporation for construction of multi-storeyed building within
-8- LPA Nos.327 & 328 of 2023 the vicinity of defence land/establishment without obtaining "No Objection Certificate" from Local Military Authority illegal and nullity in the eyes of law as the same is against the guidelines issued in defence Letter No. 11026/2/2011/D (Land) Dated 18/05/2011 issued under the provisions of The Works Of Defence Act, 1903.
(c) Pending final hearing of instant writ application construction being made by the respondent no 5, NCC Urban Infrastructure Limited, Khelgaon, Ranchi, be stopped, as the construction work is going on within 100 Meter radius of the defence land, and the same is security hazard.
(d) For any other appropriate relief/reliefs to which the petitioner is found to be entitled to in the facts and circumstances of instant case as conscionable justice to the petitioner.
14. The appellant/writ petitioner, in both the cases, has taken the following grounds: -
(i) That the Works of Defence of India Act, 1903 is the basic statutory provision to look into the security hazard of all the security whether it is Army, Air Force or the Naval, as would be evident from Section 3 read with Section 7 thereof.
(ii) The further ground was taken that 2016
-9- LPA Nos.327 & 328 of 2023 circular will not be applicable, rather, the guideline dated 18.05.2011 read with circular dated 17.11.2015 is to be implemented in view of the NOC guideline dated 06.10.2020. Since, the maps have been sanctioned by the local sanctioning authority is post 18.05.2011 or 18.03.2015 or 17.11.2015, hence, the NOC is required to be sought for from the Army Headquarter.
(iii) So far as the question of Right to Property, as available under Article 300-A is concerned, it was submitted before the learned writ Court that the individual right cannot be allowed to be prevailed upon the national interest particularly the security issue of the country.
15. Per contra, the following grounds have been taken by the respondents, so far as the writ petition being W.P.(C) No.2573 of 2022 is concerned, i.e.,
(i) The building in question, wherein, the objection has been made by the writ petitioner/appellant is absolutely without any authority and being not warranted under the provision of Jharkhand Municipal Act, 2011.
(ii) There is no requirement to have the NOC in view of the circular dated 21.10.2016, as was applicable the day when the map was sanctioned by the competent sanctioning authority, i.e., the Ranchi Municipal
- 10 - LPA Nos.327 & 328 of 2023 Corporation.
(iii) The fact about superseding effect of the circular dated 21.10.2016 has been taken note in the document dated 15.11.2022, whereby and whereunder, it has been clarified that the NOC be given only where required by municipal bye-laws as specified in Para-2(a).
(iv) It has been contended that under the applicable Jharkhand Municipal Act, 2011, there is no statutory provision for grant of NOC by the appellant concerned.
Subsequently, another circular has come on 23.12.2022 issued by the Government of India, Ministry of Defence addressed to the Chief of Army Staff, the Chief of Air Staff and the Chief of Naval Staff stipulating therein that the local municipal laws do not require, yet the Station Commander feels that any construction coming up within 50 meter radius of defense establishment which are listed at Annexure-A, is a security hazard, it should refer the matter immediately to its next higher authority in the chain of command.
(v) The ground has been taken that even accepting, NOC is required even in pursuant to the circular dated 23.12.2022 then also the building will not come under the fold of stipulation made under Para-2(ii) of
- 11 - LPA Nos.327 & 328 of 2023 the aforesaid circular, which according to the petitioner, is beyond the 50-meter radius of defence establishment and also having not crossing the barrier of height.
(vi) The ground has been taken that the learned Single Judge has accepted that when the circular dated 21.10.2016 issued by the Ministry of Defence, then the same will have the binding effect upon the instruction so issued by the Army Headquarter dated 06.10.2020. Since, the Ministry of Defence is the Nodal Ministry and hence, the decision of Nodal Ministry will prevail and not the Army Personnel or the Head of the Armed Forces.
(vii) The learned Single Judge, has also taken into consideration, the non-availability of Works of Defence Act, 1903, by virtue of the same, there is no reference of any barriers for construction said to be issued by the Ministry of Defence.
(viii) The ground has also been taken that the constitutional right conferred under Article 300-A of the Constitution of India, cannot be abrogated by virtue of the decision said to be taken for getting NOC in view of the document dated 06.10.2020 in absence of any declaration said to be issued in pursuant to the Works of Defence of India Act, 1903.
16. Learned Single Judge, on appreciation of the rival
- 12 - LPA Nos.327 & 328 of 2023 submissions, has dismissed both the writ petitions by holding therein that the case of the writ petitioner in W.P.(C) No.2573 of 2022 continued to be governed by the guideline dated 21.10.2016, since, the same was in operation when the plan for commercial structure and residential building were sanctioned in the year 2019 which did not require NOC from the Station Commander in absence of any provision thereto in the municipal laws, while, the direction as sought for in W.P.(C) No.788 of 2022, the same was also considered by answering the issue by coming to the conclusion that the building plans were sanctioned prior to coming into existence of the Guideline dated 18.05.2011. The respondent no.5 was also involved in phase wise construction but the writ petitioner had never raised any objection and/or ventilated its grievance to the authorities in the recent past.
17. The following grounds have been taken by the learned counsel appearing for the appellant/writ petitioner, so far as the issue pertains to W.P.(C) No.2573 of 2022 i.e., (I) The learned Single Judge, has not appreciated the fact of the very object and intent of the Works of Defence Act, 1903.
(II) It has been contended that the Works of Defence Act, 1903 primarily is with the object to provide security and take security measures for all defence unit whether, it is Army or Navy or Air Force, which would be evident from Section 3 read with Section 7 thereof.
- 13 - LPA Nos.327 & 328 of 2023 (III) The NOC is required, even though, there is no provision under the Local Municipal Act in view of the clarification as available in the document dated 06.10.2020, whereby and whereunder, the NOC guideline, as was required to be obtained, as available in guideline dated 18.05.2011 or 18.03.2015 or 17.11.2015 has been directed to be implemented. The construction, since is post 18.05.2011 or 18.03.2015 or 17.11.2015 since it is in the month of January, 2019 so far as it relates to W.P.(C) No.2573 of 2022 and as such, stipulation made in the aforesaid guideline dated 18.05.2011 or 18.03.2015 or 17.11.2015 will be applicable. (IV) The contention of applicability of the circular dated 21.10.2016 has been disputed on the ground that the same is by the Ministry of Defence and in contrary to the interest of the Armed Personnel whether the Indian Army or the Navy or the Air Force, the Ministry of Defence, on the basis of the representation received from the elected representatives in order to review the guidelines issued in 2011, has reviewed the earlier guidelines dated 18.05.2011 or 18.03.2015 or 17.11.2015 by carving out a list as under part-A by creating an exemption to have a NOC.
(V) The aforesaid circular cannot be said to be with
- 14 - LPA Nos.327 & 328 of 2023
application of mind, since the same is based upon the representation received from the elected representative, while the guidelines dated 18.05.2011 or 18.03.2015 or 17.11.2015 are the decision taken based upon the thoughtful consideration of the Army people who is the direct sufferer and concerned with the security theft perception.
18. The argument which has been advanced that the Right to Property, as under Article 300-A is concerned, there is no dispute that the right to hold the property as Constitutional right but the said right is to be considered based upon the national interest as the fact and issue involved in the present case.
19. Learned counsel for the appellant/writ petitioner has submitted that these facts have not been taken into consideration by the learned Single Judge in right perspective and merely has interpreted the circular, hence, the instant appeal for interfering with the impugned order passed by the learned Single Judge.
20. So far as the issue pertains to W.P.(C) No.788 of 2022 is concerned, learned counsel appearing for the appellant/writ petitioner, in addition to the above grounds, has also taken the ground that:-
(I) Admittedly, the maps were sanctioned prior to 2011 but as would be evident from the renewal application, the same since has been passed for renewal of the aforesaid sanction,
- 15 - LPA Nos.327 & 328 of 2023 hence, whatever ground has been stipulated, the same will also be applicable in the facts of the case.
(II) Even accepting that the map was sanctioned prior to 2011, but can the object and spirit of Works of Defence Act, 1903 be overlooked.
21. Learned counsel for the writ petitioners in both the cases, have raised the common ground so far as the legal issues are concerned.
Arguments advanced on behalf of respondents in LPA No.327/2023
22. However, learned counsel for the respondent in L.P.A. No.327 of 2023, in addition to the aforesaid ground, has raised the different grounds also, based upon the fact of the said appeal being LPA No.327 of 2023, i.e.,
(i) The learned Single Judge has well appreciated the fact regarding the applicability of the circular dated 21.10.2016 since the same has been issued by the Nodal Department, i.e., the Ministry of Defence and once the Ministry of Defence has come out with the decision carving out the parameter for construction of building adjacent to the military base or the cantonment, the Armed Personnel of the Army Headquarter even if takes any decision contrary to the decision of the Ministry of Defence, will not prevail, rather, the decision of the Ministry of Defence, will prevail.
(ii) The circular dated 18.05.2011 or 18.03.2015 or 17.11.2015 will be said to be superseded by circular dated
- 16 - LPA Nos.327 & 328 of 2023 21.10.2016, since the same is subsequent and has been issued by the Ministry of Defence on being consideration of the representation of the members of the parliament and as per the said circular, the building in question herein is not falling under the barrier in making construction, rather, the building in question which is being constructed in the place is squarely covered with the parameters for allowing the such construction to go.
(iii) A decision of the Ministry of Defence as taken in the circular dated 21.10.2016 has further been reiterated in the document dated 15.11.2022 and 23.12.2022 under which also the building in question, is under its purview.
(iv) The Right to Property as guaranteed under Article 300-A of the Constitution of India cannot be snatched away without any authority of law.
(v) The ground of parity has also been taken that in the same locality so many constructions are there but only by way of pick and choose policy, the objection is being made so far as the present building is concerned.
23. So far as the LPA No.328 of 2023 is concerned, in addition to the above ground, the grounds have been taken that:-
(i) The construction is old, based upon the sanction by the local authority, i.e., prior to 2011 circular and the present is only extension of the construction based upon the sanction already granted prior to circular dated 18.05.2011.
(ii) The respondent concerned herein is an Executing
- 17 - LPA Nos.327 & 328 of 2023 Agency and it is the State Government who was the applicant before the local authority for sanction of map and by virtue of the aforesaid sanction having been granted, the respondent concerned is only executing the same by investing huge money.
But due to such decision, the present respondent without any fault of his own is facing rigour.
Analysis
24. We have heard the learned counsel for the parties, perused the finding recorded by the learned Single Judge in the impugned order and gone across the pleading made by the respective parties in the affidavit.
25. This Court, before proceeding to examine the legality and propriety of the order, is required to consider the following issues:-
Issue No.I
(i) Whether the circular dated 18.05.2011, 18.03.2015, 17.11.2015, 21.10.2016, 23.12.2022 and 23.02.2023 can be said to be issued in view of the provision of Article 77(3) of the Constitution of India? If not then can it be construed to be circular or merely Guideline?
Issue No.II
(ii) The aforesaid so-called circular of the Ministry of Defence or the instruction issued by the Army Headquarter, can be said to be a binding effect upon the parties. Issue No.III
(iii) If the said circulars are not having binding effect,
- 18 - LPA Nos.327 & 328 of 2023 said not to be issued within the mandate of Section 3 read with Section 7 of the Works of Defence Act, 1903, the same can have its binding effect, said to be issued under the power of sub- delegation under the aforesaid provision. Issue No.IV
(iv) Whether the circular dated 18.05.2011 issued with the sole object of security threat perception by the Ministry of Defence or the circular dated 21.10.2016 also issued by the Ministry of Defence, keeping the object of the Works of Defence Act, 1903 then which circular is said to be rational and said to be acceptable?
Issue No.V
(v) Whether in absence of any declaration, said to be issued within the meaning of Section 3 of the Works of Defence Act, 1903, can this Court in exercise of power conferred under Article 226 of the Constitution of India confirmed the decision so taken by the authority, which is the subject matter of the instant appeal?
Issue No.VI
(vi) Whether putting restriction in using the land for the purpose of making construction over there within the permissible limit area, can be said to be the deprivation of his right to hold the property, as provided under Article 300-A of the Constitution of India.
Issue No.VII
(vii) Whether the statute enacted by the State is not
- 19 - LPA Nos.327 & 328 of 2023
consistent with the Central Legislation which will prevail over which?
Issue No.VIII
(viii) Whether Article 14 envisages negative equality?
26. The issues since pertain to legal one and as such, the same is dealt with for the purpose of appreciating the argument advanced on behalf of the parties, based upon the arguments/grounds, as referred hereinabove as also for the purpose of considering the legality and propriety of the order passed by the learned Single Judge.
27. Since, the issue nos.(I), (II), (III) & (IV) are interlinked, therefore, all these four issues are being taken up together.
28. This Court, before proceeding with the aforesaid issue, is of the view that the provision of Article 77 of the Constitution of India needs to be referred which reads as under:-
"77. Conduct of business of the Government of India (1) All executive actions of the Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, arid the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient transaction of the business of the
- 20 - LPA Nos.327 & 328 of 2023 Government of India, and for the allocation among Ministers of the said business."
29. It is evident from the stipulation made under Article 77 of the Constitution, whereby and whereunder, all executive action of the Government of India shall be expressed to be taken in the name of the President.
30. Further, orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. The President shall make rules for the more convenient transaction of the business of the Government of India, and for allocating amongst Ministers of the said premises.
31. A separate provision has been carved out for the State under Article 166(3), for ready reference, the same is also being referred as under:-
"(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion."
32. The provision as contained under Article 166(3) is pari materia to the provision as contained under Article 77(3) of the
- 21 - LPA Nos.327 & 328 of 2023 Constitution of India.
33. Thus, it is evident that all the actions either at the level of the Centre or the State is to be taken in the name of the President so far as the Union is concerned and in the name of the Governor so far as the State is concerned.
34. The President having conferred with the power to make rules for more convenient transaction of the business of the Government of India and for the allocation among the ministers of the said business, as per the provision of Article 77(3) and parametria provision as under Article 166(3) having been vested upon the Governor of the State.
35. We are living in the democratic set up wherein the President, so far as the Union is concerned, is the head of the executive and the Governor so far as the State is concerned, is the head of the State. Therefore, all the executive business which is to be performed, is to be in the name of either the President or the Governor, as the case may be.
36. The President or the Governor, as the case may, is to act upon the aid and advice of the council of minister or the Cabinet. Hence, whatever decision is being taken in the name of the President or the Governor, as the case may be, the same is with the approval of the council of ministers or the Cabinet of the Union or the State, as the case may be.
37. It is in this context, the President or the Governor or any individual either holding the post of President or the Prime Minister or the Chief Minister or any Departmental Minister is
- 22 - LPA Nos.327 & 328 of 2023 having no jurisdiction to take its own independent decision, rather, the decision is to be approved by the Cabinet and thereafter, it is to be sealed by the President or the Governor, as the case may be, for taking the shape of the order said to be issued in the name of the Union or the State.
38. The aforesaid issue has well been considered by the Constitution Bench of the Hon'ble Apex Court while interpreting the implication of rules of executive business in the case of Samsher Singh Vrs. State of Punjab & Anr., reported in (1974) 2 SCC 831, wherein, it has been held at paragraph- 48 & 57, which reads as under:-
"48. The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of a Minister or
- 23 - LPA Nos.327 & 328 of 2023 officer under the Rules of Business is the decision of the President or the Governor.
57. For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the Executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Services of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution."
39. In the light of the aforesaid provision, now it is to be seen as to whether, the so-called circular dated 18.05.2011, 18.03.2015, 17.11.2015, 21.10.2016, 23.12.2022 and 23.02.2023 can be said to be an executive instruction said to be issued in the light of the provision of Article 77(3) of the Constitution of India, as has been referred hereinabove by referring the provision of Article 77(3) of the Constitution of India, since, we are dealing with the issue of Union.
40. It is evident that issuance of any circular for the purpose of smooth running of the Administration is upon the President and if any decision is being taken with due approval of the Cabinet, then it must be in the name of the President of the Country and it is only then, such type of decision, will be said
- 24 - LPA Nos.327 & 328 of 2023 to be a circular issued by the Union.
41. It is also settled position of law that if any decision is being taken by any authority in individual capacity by its functionaries, the same cannot be said to be an order passed by the Union or the State, as the case may be.
42. This Court, therefore, is to examine the status of the contents of these documents, which is being referred by the learned counsel for the appellant/writ petitioner and the respondents as a circular.
43. Admittedly, theses circulars, i.e., circular dated 18.05.2011, 18.03.2015, 17.11.2015, 21.10.2016, 23.12.2022 and 23.02.2023, cannot be said to be circular issued in the light of the provision of Article 77(3) of the Constitution of India, since, it has been issued either by the functionaries of Ministry of Defence or by the functionaries of the Armed Forces, rather, if it would be seen, the same is by virtue of a guideline for issuance of no objection certificate for the building construction.
44. Now the question is that when these instructions are not executive instruction said to be issued in the light of the provision of Article 77(3) of the Constitution of India, what would be its binding effect?
45. So far as the issue no.(II) is concerned, we have come to the conclusion that the instruction, i.e., 18.05.2011, 18.03.2015, 17.11.2015, 21.10.2016, 23.12.2022 and 23.02.2023 are in the shape of the guideline issued by the
- 25 - LPA Nos.327 & 328 of 2023 Ministry of Defence, is not inconsonance with the constitutional mandate, as per the provision of Article 77(3) of the Constitution and as such, these guidelines are not by way of executive instruction, said to be applicable and hence, according to the considered view of this Court, the same is having no binding effect upon the parties.
46. So far as the issue no.(III) is concerned, if the said instruction is not having binding effect, not said to be issued within the mandate of Section 3 read with Section 7 of the Works of Defence Act, 1903, the same can have its binding effect and if issued, can it be said to be under the power of sub delegation under the aforesaid provision.
47. This Court, in order to answer the issue, is of the view that the reference of the Works of Defence Act, 1903 needs to be made herein.
48. The aforesaid Act has been enacted by virtue of Act No.7 of 1903 notified by virtue of notification dated 20th March, 1903.
49. The basic aim and object of the Act is to provide for imposing restrictions upon the use and enjoyment of land in the vicinity of work of defence in order that such land may be kept free from buildings and other obstructions, and for determining the amount of compensation to be made on account of such imposition.
50. The said Act has been called as 'Works of Defence Act, 1903' and it extends to the whole of India.
51. As per the definition of 'land' which includes benefits to
- 26 - LPA Nos.327 & 328 of 2023 arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.
52. Thus, it is evident that the definition of 'land' is inclusive meaning, whereby and whereunder, not only the land will be said to be within the meaning of 'land' but anything attached to the earth, will also come under the fold of the land either natural or artificial including the immovable property, if available over the land in question.
53. The Part-II of the Works of Defence Act, 1903 contains with the provision of imposition of restrictions.
54. Section 3 as under Part-II of Works of Defence Act, 1903 stipulates which reads as under:-
"3. Declaration and notice that restrictions will be imposed.--(1) Whenever it appears to the [Central Government] that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders. (2) The said declaration shall be published in the Official Gazette and shall state the district or other territorial division in which the land is situate and the place where a sketch plan of the land, which shall be prepared on a scale not smaller than six inches to the mile and shall distinguish the boundaries referred to in section 7, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality, (3) The said declaration shall be conclusive proof that it
- 27 - LPA Nos.327 & 328 of 2023 is necessary to keep the land free from buildings and other obstructions."
55. It is evident from Section 3 thereof that the power has been conferred upon the Central Government that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders.
56. Sub-section 2 of Section 3 provides that the said declaration shall be published in the Official Gazette and shall state the district or other territorial division in which the land is situate and the place where a sketch plan of the land, which shall be prepared on a scale not smaller than six inches to the mile and shall distinguish the boundaries referred to in section 7, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality.
57. Sub-section 3 provides that the said declaration shall be conclusive proof that it is necessary to keep the land free from buildings and other obstructions.
58. Section 4 of the Works of Defence Act, 1903 provides that the power to do preliminary Acts after publication of notice under section 3, sub-section (2). Section 5 provides the payment of damage.
- 28 - LPA Nos.327 & 328 of 2023
59. Section 7 deals with the restriction, for ready reference, Section 7 of the Works of Defence Act, 1903 is being referred as under:-
"7. Restrictions.--From and after the publication of the notice mentioned in section 3, sub-section (2), such of the following restrictions as the [Central Government] may in its discretion declare therein shall attach with reference to such land, namely:--
(a) Within an outer boundary which, except so far as is otherwise provided in section 39, sub-section (4), may extend to a distance of two thousand yards from the crest of the outer parapet of the work,--
(i) no variation shall be made in the ground-level, and no building, wall, bank or other construction above the ground shall be maintained, erected, added to or altered otherwise than with the written approval of the [General Officer Commanding the District], and on such conditions, as he may prescribe;
(ii) no wood, earth, stone, brick, gravel, sand or other material shall be stacked, stored or otherwise accumulated:
Provided that, with the written approval of the [General Officer Commanding the District] and on such conditions as he may prescribe, road-ballast, manure and agricultural produce may be exempted from the prohibition:
Provided also that any person having control of the land as owner, lessee or occupier shall be bound forthwith to remove such road-ballast, manure or agricultural produce, without compensation, on the requisition of the Commanding Officer;
(iii) no surveying operation shall be conducted otherwise than by or under the personal supervision of a public servant duly authorised in this behalf, in the case of land under the control of military authority, by the Commanding Officer and, in other cases, by the Collector with the concurrence of the Commanding Officer; and
- 29 - LPA Nos.327 & 328 of 2023
(iv) where any building, wall, bank or other construction above the ground has been permitted under clause (i) of this sub-section to be maintained, erected, added to or altered, repairs shall not, without the written approval of the [General Officer Commanding the District], be made with materials different in kind from those employed in the original building, wall, bank or other construction.
(b) Within a second boundary which may extend to a distance of one thousand yards from the crest of the outer parapet of the work, the restrictions enumerated in clause
(a) shall apply with the following additional limitations, namely:--
(i) [no building, wall, bank or other construction of permanent materials above the ground shall be maintained otherwise than with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe, and no such building, wall bank or other construction shall be erected:] Provided that, with the written approval of the [General Officer Commanding the District] and on such conditions as he may prescribe, huts, fences or other constructions of wood or other materials, easily destroyed or removed, may be maintained, erected, added to or altered:
Provided also, that any person having control of the land as owner, lessee or occupier shall be bound forthwith to destroy or remove such huts, fences or other constructions, without compensation, upon an order in writing signed by the [General Officer Commanding the District]; and
(ii) live hedges, rows or clumps or trees or orchards shall not be maintained, planted, added to or altered otherwise than with the written approval of the 1 [General Officer Commanding the District] and on such conditions as he may prescribe.
(c) Within a third boundary which may extend to a
- 30 - LPA Nos.327 & 328 of 2023 distance of five hundred yards from the crest of the outero parapet of the work, the restrictions enumerated in clauses
(a) and (b) shall apply with the following additional limitation, namely:--
no building or other construction on the surface, and no excavation, building or other construction below the surface, shall be maintained or erected :
Provided that, with the written approval of the Commanding Officer and on such conditions as he may prescribe, [a building or other construction on the surface may be maintained and] open railings and dry brush-wood fences may be exempted from this prohibition."
60. It is evident from the aforesaid section that from and after publication of the notice mentioned in section 3, sub-section (2), such of the following restrictions as the Central Government may in its discretion declare therein shall attach with reference to such land, namely:--
(a) Within an outer boundary which, except so far as is otherwise provided in section 39, sub-section (4), may extend to a distance of two thousand yards from the crest of the outer parapet of the work,--
(i) no variation shall be made in the ground-level, and no building, wall, bank or other construction above the ground shall be maintained, erected, added to or altered otherwise than with the written approval of the 2 [General Officer Commanding the District], and on such conditions, as he may prescribe;
(ii) no wood, earth, stone, brick, gravel, sand or other material shall be stacked, stored or otherwise accumulated:
(iii) no surveying operation shall be conducted otherwise than by or under the personal supervision of a public servant
- 31 - LPA Nos.327 & 328 of 2023 duly authorised in this behalf, in the case of land under the control of military authority, by the Commanding Officer and, in other cases, by the Collector with the concurrence of the Commanding Officer; and
(iv) where any building, wall, bank or other construction above the ground has been permitted under clause (i) of this sub-section to be maintained, erected, added to or altered, repairs shall not, without the written approval of the 2 [General Officer Commanding the District], be made with materials different in kind from those employed in the original building, wall, bank or other construction.
(b) Within a second boundary which may extend to a distance of one thousand yards from the crest of the outer parapet of the work, the restrictions enumerated in clause (a) shall apply with the following additional limitations, namely:--
(i) [no building, wall, bank or other construction of permanent materials above the ground shall be maintained otherwise than with the written approval of the General Officer Commanding the District and on such conditions as he may prescribe, and no such building, wall bank or other construction shall be erected:]
(ii) live hedges, rows or clumps or trees or orchards shall not be maintained, planted, added to or altered otherwise than with the written approval of the [General Officer Commanding the District] and on such conditions as he may prescribe.
(c) Within a third boundary which may extend to a
- 32 - LPA Nos.327 & 328 of 2023 distance of five hundred yards from the crest of the outero parapet of the work, the restrictions enumerated in clauses (a) and (b) shall apply with the following additional limitation, namely:--
no building or other construction on the surface, and no excavation, building or other construction below the surface, shall be maintained or erected.
61. It is evident from the condition stipulated under Section 7 as referred hereinabove that the various nature of restrictions is to be imposed on the basis of the declaration if issued under Section 3 of sub-section 2 of the Act, 1903.
62. The provision of Section 3, thus, confers power upon the Central Government to come out with the declaration under the signature of Secretary to such Government. The Act, 1903 is pre-independence Act conferring power upon the Central Government for the purpose of issuance of declaration under the signature of the Secretary to such Government.
63. The aforesaid Act has been saved in view of the provision of Article 13(1) of the Constitution of India being not in consistent with the constitutional mandate. As such, the meaning of 'Government' as under Section 3 of the Act, 1903 in our democratic system as per out constitutional mandate, wherein, the President will be the head of the Union and the Governor is the head of the State. Since our Constitution provides for collective system of government, wherein, the President or the Governor or any functionary of the State
- 33 - LPA Nos.327 & 328 of 2023 Government or the Central Government in individual capacity is not conferred with the power to take any decision, rather, the decision is to be based upon the collective principle of system having been signed by the head of the Centre or the State, i.e., the President or the Governor, as the case may be and then only, the decision will be said to be in the name of the Central Government or the State Government, as the case may be.
64. The word 'declaration' has been used under Section 3 which shall be published in the official gazette, as per sub- section 2 of Section 3 of the Act, 1903.
65. The declaration, if notified, in view of the provision of sub- section 2 of Section 3, the restrictions as referred under Section 7 thereof, may in its discretion declare therein shall attach with reference to such land, as has been referred hereinabove while referring the Section 7 of the Act, 1903.
66. The word 'declaration' to be notified in the official gazette by the Central Government, according to our considered view, will be said to be a policy decision of the State Government by way of executive instruction, said to be taken under the power conferred under Article 77 of the Constitution of India and then only, the same will be said to be the decision of the Union and as such, will be binding upon the parties.
67. Accordingly, Issue No.(I), (II), (III) & (IV) are being answered herein.
68. Issue No.(V), i.e., "Whether in absence of any declaration, said to be
- 34 - LPA Nos.327 & 328 of 2023 issued within the meaning of Section 3 of the Works of Defence Act, 1903, can this Court in exercise of power conferred under Article 226 of the Constitution of India confirmed the decision so taken by the authority, which is the subject matter of the instant appeal?"
69. This Court, before proceeding to examine the factual aspect, is of the view that the present issue also needs to be decided.
70. This Court, for the purpose of deciding the present issue, is again coming back to the very object of the Act, 1903 which has been enacted for imposing restrictions upon the use and enjoyment of land in the vicinity of works of defence in order that such land may be kept free from buildings and other obstructions, and for determining the amount of compensation to be made on account of such imposition.
71. Therefore, the very object of the Act, 1903 is for the purpose of imposing restrictions and in case, the restriction is being imposed, then to compensate the person concerned, upon whom, the restriction has been imposed.
72. Thus, it is evident that the very purpose of the Act, 1903 is to protect the defence service by imposing restrictions as per the list of restrictions, as provided under Section 7 of the Act, 1903.
73. The law is well settled regarding the purposive construction of an Act that if any act is being enacted or has
- 35 - LPA Nos.327 & 328 of 2023 been enacted, the same is to be taken into consideration on the basis of the object and intent of the Act then only, it will be said that the Act has achieved its purpose, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Balwant Singh Vrs. Jagdish Singh & Ors., (2010) 8 SCC 685 wherein at paragraph-32 it has been held as under
"32. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly."
74. Further, the Hon'ble Apex Court in the case of Edukanti Kistamma (Dead) through LRs & Ors. Vrs. S. Venkatareddy (dead) through LRs. & Ors [(2010) 1 SCC 756], at paragraph 26 held as under:
"26. ....... Interpretation of a beneficial legislation with a narrow pedantic approach is not justified. In case there is any doubt, the court should interpret a beneficial legislation in favour of the beneficiaries and not otherwise as it would be against the legislative intent. For the purpose of interpretation of a statute, the Act is to be read in its entirety. The purport and object of the Act must be given its full effect by applying the principles of purposive construction. The court must be strong against any construction which tends to reduce a statute's utility. The
- 36 - LPA Nos.327 & 328 of 2023 provisions of the statute must be construed so as to make it effective and operative and to further the ends of justice and not to frustrate the same. The court has the duty to construe the statute to promote the object of the statute and serve the purpose for which it has been enacted and should not efface its very purpose......"
75. Likewise, the Hon‟ble Apex Court in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) & Anr. Vs. Sri Seetaram Rice Mill [(2012) 2 SCC 108], at paragraph 46 and 49 has been pleased to hold as under:
"46. "Purposive construction" is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be overstated or overextended. Without being overextended or overstated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent.
49. Once the court decides that it has to take a purposive construction as opposed to textual construction, then the legislative purpose sought to be achieved by such an interpretation has to be kept in mind. ...".
76. It is equally settled position of law that the Act if enacted is required to be followed in its strict sense and there may not be any deviation from the same so as to achieve the purpose of
- 37 - LPA Nos.327 & 328 of 2023 enactment of such Act.
77. Herein, the main issue is "as to whether the construction so made within the vicinity of the defence area, can be allowed to go".
78. The rival submissions have been made regarding applicability of the guidelines by construing the same to be a circular on behalf of both the sides.
79. We have come to the conclusion that these instructions are not executive instruction said to have not been issued in exercise of power conferred under Article 77 of the Constitution of India and two guidelines have been issued by the Ministry of Defence amongst which the Headquarter of the Armed Forces is relying upon one which is nearer to achieve the object and intent of the Act, 1903, i.e., 18.05.2011.
80. We have considered the guideline dated 21.10.2016 issued by the Ministry of Defence under the signature of Deputy Director (Lands), Ministry of Defence, Govt. of India.
81. Admittedly, the said letter will be looked into, the same is not in the name of the President of India, rather, in the name of the functionary of the Ministry of Defence that too the same has been issued on the basis of the consideration of representations received by the members of parliament.
82. It is evident from the aforesaid guideline that certain parameters have been given by imposing restriction by carving out the relaxation from the guideline as referred in instruction dated 06.10.2020, i.e., the NOC guidelines dated 18.05.2011,
- 38 - LPA Nos.327 & 328 of 2023 18.03.2015 and 17.11.2015 for the purpose of implementation of guideline dated 18.05.2011 across all defence establishment pan India.
83. The guideline dated 21.10.2016 addressed to the Chief of Army Staff, the Chief of Air Staff and the Chief of Naval Staff by making reference of the guideline dated 18.05.2011 read with amendments issued vide instruction dated 18.03.2015 and 17.11.2015 regarding grant of No Objection Certificate from the Local Military Authorities for construction of buildings in the vicinity of defence establishments.
84. It would be evident from the Guideline dated 21.10.2016 upon which the respondents are placing reliance that the Ministry of Defence has taken decision in view of the large number of representations received from elected representatives to review the guideline dated 18.05.2011 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 and as such, 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 manner. The following manner has been provided in the Guideline dated 21.10.2016 making departure from the Guideline dated 18.05.2011, for ready reference, the same is being referred as under:-
(a) Security restrictions in respect of Defence establishments / installations located at 193 stations
- 39 - LPA Nos.327 & 328 of 2023 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 Obiection 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 10 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) shell 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.
85. In the guideline dated 21.10.2016, there is departure from the guideline dated 18.05.2011 which was issued by taking into consideration the two cases of Sukna and Adarsh and thereafter, the various issues involved in these two cases were
- 40 - LPA Nos.327 & 328 of 2023 reviewed. The matter has been considered in detail in the Govt. in consultation with the services. In consequence thereof, it has been felt that the 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.
86. The objective of the instruction dated 18.05.2011 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.
87. The guidelines have been formulated therein as under:-
(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.
- 41 - LPA Nos.327 & 328 of 2023
(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.
88. Thus, it is evident that the guideline dated 18.05.2011 issued by the Ministry of Defence under the signature of functionary, i.e., the Director (L&C) has been decided to be followed by the Armed Headquarter for the purpose of reason
- 42 - LPA Nos.327 & 328 of 2023 assigned in the guideline dated 18.05.2011, is to deal with the cases like Sukna and Adarsh where the country has faced, the militant attacks in the army base.
89. It is evident from the guideline dated 18.05.2011 that the very object of the Works of Defence Act, 1903 was the paramount consideration. But, in a highly surprise manner, the said guideline has been modified by carving out relaxation that too based upon large number of representations received from the elected representatives.
90. Although, the guideline dated 21.10.2016 or any of the guideline, is not under challenge but since we are dealing with the issue of perception of the security of the country and as such, this Court in exercise of power conferred under Article 226 of the Constitution of India needs to make herein the remark upon the functionary that they have not taken into consideration, while issuing guideline dated 21.10.2016 what has referred in the earlier guideline dated 18.05.2011, rather, the guideline dated 18.05.2011 has been modified mainly on the ground of large number of representations received from the elected representatives without discussing the perception of increasing threat upon the security of the country, in other words, is in the teeth of the intent and object of the Works of Defence Act, 1903.
91. The question of jurisdiction of Ministry of Defence, have already been answered but the paramount consideration of this Court is how to achieve the object and intent of the Act, 1903 in
- 43 - LPA Nos.327 & 328 of 2023 absence of a declaration said to be issued inconsonance with the provision of Section 3(2) read with Section 7 of the Works of Defence Act, 1903 by taking into consideration of purposive construction of an Act.
92. In the light of increasing the terrorist activities like Sukna and Adarsh, it needs to refer hereinafter the Guideline dated 18.05.2011 which was formulated taking into account Sukna & Adarsh episode, some of the occurrence of militants attack in the defence base, i.e., Militants attacked on security personnel at Pathankot where 7 security personnel were dead and 22 were injured, Four Gunmen burst into a brigade headquarters in the town of Uri (Kashmir) where 18 Indian Soldiers were killed, Militants attacked at Indian Army Camp, Baramulla, Kashmir, Militants attacked on Army Base at Nagrota near Jammu City where 7 security personnel were killed, incident of Pulwama Attack took place where 40 paramilitary forces were killed & Militants attacked on Army Post in Rajaouri where 3 soldiers were killed, so as to consider in exercise of power conferred under Article 226 of the Constitution of India, the reliance as has been made by the Armed Headquarter in Guideline dated 18.05.2011 and why not the Guideline dated 21.10.2016 which has also been issued by the Ministry of Defence, upon which, respondents are relying upon for the purpose of achieving the object of the Act, 1903.
93. This Court, based upon the discussion made hereinabove and the scope of Article 226 of the Constitution of India, in
- 44 - LPA Nos.327 & 328 of 2023 order to have the object of purposive construction of the Act, is of the view that in absence of any declaration said to be issued within the meaning of Section 3 of the Works of Defence Act, 1903, the reliance which is being put on behalf of the appellant upon the guideline dated 18.05.2011, is required to be approved and accordingly, the same is approved, hence, the Issue No.(V) Issue No.(VII), i.e. "Whether the statute enacted by the State is not consistent with the Central Legislation which will prevail over which?"
94. There is no dispute that under the local act, i.e., known as "Jharkhand Municipal Act, 2011", there is no provision of seeking NOC from any other functionary but the question herein is that if the State has come out with the Act known as "Jharkhand Municipal Act, 2011" and the Central Act is also there in the name of style of 'Works of Defence Act, 1903' and if there is any repugnancy or inconsistency in both the provision, then question would arise which will prevail.
95. The said issue is to be considered in the light of the provision of Article 254 of the Constitution of India, wherein, it has been provided about inconsistency between laws made by Parliament and laws made by the Legislatures of the States.
96. It is settled position that the law in relation to Article 254 of the Constitution of India attracts in cases where the law is enacted by the parliament and the State Legislature on the
- 45 - LPA Nos.327 & 328 of 2023 same subject, which falls in list III, concurrent list.
97. As per mandate of Article 254(1) if any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
98. While on the other hand, as per stipulation prescribed in Article 254(2) a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of M. Karunanidhi Vrs. Union of India & Anr., reported in (1979) 3 SCC 431, wherein, at paragraph-8, 24 & 25, it has been held as under:-
"8. It would be seen that so far as clause (1) of Article 254 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that
- 46 - LPA Nos.327 & 328 of 2023 made by Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the pro- visions of clause (2), the State law would be void to the extent of the repugnancy. This naturally means that where both the State and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act. In fact, the scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parliament and the State Legislatures. First, regarding the matters contained in List I, i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I. Secondly, so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II, i.e. the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. It is, therefore, obvious that in such matters repugnancy may result from the following circumstances:
1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
2. Where however a law passed by the State comes into collision with a law passed by
- 47 - LPA Nos.327 & 328 of 2023 Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.
So far as the present State Act is concerned we are called upon to consider the various shades of the constitutional validity of the same under Article 254(2) of the Constitution.
24. It is well settled that the presumption is always in favour of the constitutionality of a
- 48 - LPA Nos.327 & 328 of 2023 statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
1. That there is a clear and direct inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.
25. In Colin Howard's Australian Federal Constitutional Law, 2nd Edn. the author while describing the nature of inconsistency between the two enactments observed as follows:
"An obvious inconsistency arises when the two enactments produce different legal results when applied to the same facts."
99. Further, the similar view has been taken by the Hon'ble Apex Court in the case of Govt. of A.P. & Anr. Vrs. J.B. Educational Society & Anr., reported in (2005) 3 SCC 212 wherein, at paragraph-12, it has been held as under:-
"12. Thus, the question of repugnancy between the parliamentary legislation and the State legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and
- 49 - LPA Nos.327 & 328 of 2023 there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1). Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation."
100. Further, the Constitution Bench of the Hon'ble Apex Court has reiterated the same view in the Judgment rendered in the case of State of Kerala & Ors. Vrs. Mar Appraem Kuri Co. Ltd. & Anr., reported in (2012) 7 SCC 106, wherein, it has been held at paragraph-65 which reads as under:-
"65. Applying the above tests to the facts of the present case, on the enactment of the (Central) Chit Funds Act, 1982 on 19-8-1982, intending to occupy the entire field of chits under Entry 7 of List III, the State Legislature was denuded of its power to enact the Kerala Finance Act 7 of 2002. However, as held in numerous decisions of this Court, a law enacted by the State Legislature on a topic in the Concurrent List which is inconsistent with and repugnant to the law made by Parliament can be protected by obtaining the assent of the President under Article 254(2) and that the said assent would enable the State law to prevail in the State and override the provisions of the Central Act in its applicability to that State only."
101. Likewise, the Hon'ble Apex Court in the case of K.A. Annamma Vrs. Secretary, Cochin Coop. Hospital Society
- 50 - LPA Nos.327 & 328 of 2023 Ltd., reported in AIR 2018 SC 422, wherein, at paragraph-60 to 62, it has been held as under:-
"60. The law in relation to Article 254 of the Constitution and how it is applied in a particular case is fairly well settled by the series of decisions of this Court. This Article is attracted in cases where the law is enacted by Parliament and the State Legislature on the same subject, which falls in List III -- Concurrent List.
61. In such a situation arising in any case, if any inconsistency or/and repugnancy is noticed between the provisions of the Central and the State Act, which has resulted in their direct head on collusion with each other, which made it impossible to reconcile both the provisions to remain in operation inasmuch as if one provision is obeyed, the other would be disobeyed, the State Act, if it has received the assent of the President will prevail over the Central Act in the State concerned by virtue of Article 254(2) of the Constitution.
62. A fortiori, in such a situation, if the State Act has received the assent of the Governor then the Central Act would prevail over the State Act by virtue of Article 254(1) of the Constitution."
102. Admittedly in the instant case, the Jharkhand Municipal Act, 2011 has not been assented by the President of India, rather, it has been enacted with the assent of the Governor. Therefore, there is no question of applicability of the provision of Article 254(2) of the Constitution of India, rather, the Jharkhand Municipal Act, 2011 since has been assented by the Governor of the State, i.e., the State of Jharkhand, hence, in the facts of the case, the provision as contained under Article
- 51 - LPA Nos.327 & 328 of 2023 254(1) of the Constitution of India, will be applicable, meaning thereby, on the principle of repugnancy as also the object and intent of the Works of Defence Act, 1903 will prevail upon the Jharkhand Municipal Act, 2011. Even though, there is no provision under the Jharkhand Municipal Act for getting an objection from the Defence.
103. Although, it appears that the parties have not raised the issue but since we are dealing with the issue so as to answer the argument regarding the requirement of NOC since it is not provided under the Jharkhand Municipal Act, 2011, hence, we have decided the said issue.
104. Equally, the same principle is also applicable in a case of establishment of an airport wherein while granting sanction by the local bodies, the required NOC is to be obtained from the Ministry of Civil Aviation through the Airport Authority of India Limited.
105. The argument which has been advanced having been emphatically set that in absence of any provision under the Jharkhand Municipal Act, 2011, no objection is required to be obtained making it necessary within the meaning of 'Works of Defence Act, 1903, which according to our considered view, cannot be said to be acceptable due to the implication of the provision of Article 254(1) of the Constitution of India as also by taking into consideration the very object and intent of the Act, 1903.
106. Accordingly, the issue no.VII is answered against the
- 52 - LPA Nos.327 & 328 of 2023 respondents.
Issue No.(VI), i.e. "Whether putting restriction in using the land for the purpose of making construction over there within the permissible limit area, can be said to be the deprivation of his right to hold the property, as provided under Article 300-A of the Constitution of India?"
107. Here at this juncture, the right as claimed under Article 300-A of the Constitution of India has been made. Hence, the same is also required to be dealt with.
108. So far as Issue no.(VI), is concerned, this Court, in order to answer the aforesaid issue of violation of constitutional right as provided under Article 300-A as it is the ground taken by the writ petitioner, is of the view that the provision of Article 300-A is being referred as under:-
"300-A. Persons not to be deprived of property save by authority of law:-No person shall be deprived of his property save by authority of law."
109. It is evident from the provision as contained under Article 300-A, whereby and whereunder, no person shall be deprived of his property save by authority of law. The word 'deprive' as contained therein and for the purpose of depriving a person from the property right, the same can only be done under the authority of law.
110. Here, we are not dealing with the same and it is not the
- 53 - LPA Nos.327 & 328 of 2023 case of the respondent that they have been deprived from their right to hold the property, rather, the case in putting restriction for the purpose of protecting the interest of the security of the country. The right to hold property has been seized to be a fundamental right under the Constitution of India by virtue of the Constitutional 44th Amendment Act, 1978 making it a constitutional right to hold the property from which one or the other cannot be deprived of his property.
111. The deprivation can take place in various ways such as destruction or confiscation or revocation of the propriety right granted by a private proprietor or seizure of goods or immovable property from the possession of an individual or assumption or control of a business in exercise of police power of State.
112. The deprivation is to be distinguished from restriction of the rights following from ownership. The Hon'ble Apex Court in the case of State of Bombay Vrs. Bhanji Munji & Anr., reported in (1954) 2 SCC 386, wherein, it has been observed that substantial deprivation [is meant] the sort of deprivation that substantially robs a man of those attributes of enjoyment which normally accompany rights to, or an interest in, property. The form is unessential. It is the substance that [one] must seek, for the ready reference, paragraph-6 & 7 of the said judgment is being referred as under:-
"6. In State of W.B. v. Subodh Gopal Bose [State of W.B. v. Subodh Gopal Bose, (1953) 2 SCC 688 :
1954 SCR 587] and Dwarkadas
Shrinivas v. Sholapur Spg. & Wvg. Co.
- 54 - LPA Nos.327 & 328 of 2023
Ltd. [Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd., (1953) 2 SCC 791 : 1954 SCR 674] the majority of the Judges were agreed that Articles 19(1)(f) and 31 deal with different subjects and cover different fields. There was some disagreement about the nature and scope of the difference but all were agreed that there was no overlapping. We need not examine those differences here because it is enough to say that Article 19(1)(f) read with clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the article postulates the existence of property over which these rights can be exercised. In our opinion, this was decided in principle in Gopalan case [A.K. Gopalan v. State of Madras, 1950 SCC 228 : 1950 SCR 88] where it was held that the freedoms relating to the person of a citizen guaranteed by Article 19 assume the existence of a free citizen and can no longer be enjoyed if a citizen is deprived of his liberty by the law of preventive or punitive detention. In the same way, when there is a substantially total deprivation of property which is already held and enjoyed, one must turn to Article 31 to see how far that is justified.
7. It was argued as against this that this rule can only apply when there is a total deprivation of property and Article 19(1)(f) cannot be excluded if there is the slightest vestige of a right on which the article can operate. This has also been answered in
- 55 - LPA Nos.327 & 328 of 2023 substance in Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd. [Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd., (1953) 2 SCC 791 : 1954 SCR 674] These articles deal with substantial and substantive rights and not with illusory phantoms of title. When every form of enjoyment which normally accompanies an interest in this kind of property is taken away leaving the mere husk of title, Article 19(1)(f) is not attracted. As was said by one of us in Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd. [Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd., (1953) 2 SCC 791 : 1954 SCR 674] at SCC p. 831, para 44:
"44. ... By substantial deprivation [is meant] the sort of deprivation that substantially robs a man of those attributes of enjoyment which normally accompany rights to, or an interest in, property. The form is unessential. It is the substance that [one] must seek."
In the present case, the right to occupy the premises has gone as also the right to transfer, assign, let or sub-let. What is left is but the mere husk of title in the leasehold interest : a forlorn hope that the force of this law will somehow expend itself before the lease runs out."
113. It is, thus, evident that the admitted case of the respondents is grievance against the restriction to be imposed in view of the guideline dated 18.05.2011. They are also admitting the aforesaid restriction to be imposed but not on the basis of the guideline dated 18.05.2011, rather, on the basis of the guideline dated 21.10.2016. Hence, the argument advanced on behalf of the learned counsel for the respondents so far as it relates to depriving them from right to hold the property, is contrary to the pleading and the ground. Hence, both the guidelines speak about restriction and not about right to property.
- 56 - LPA Nos.327 & 328 of 2023
114. The applicability of the Constitutional right guaranteed under Article 300-A of the Constitution of India is only with respect to depriving the land holder from the land and if such deprivation will be there then as per the acquisition mechanism, such title holder will be entitled for compensation, as admissible.
115. The similar provision is also there in the Works of Defence Act, 1903, wherein, also in a case of depriving a person from utilization of the said land, the provision of compensation has been made. But, here the case is not of deprivation, rather, it is putting restriction and we have already discussed hereinabove that there is difference in between the deprivation from right to hold the property and the restriction to be inflicted.
116. Hence, the argument advanced on behalf of the learned counsel for the respondents so far as it relates to violation of the Constitutional right, as guaranteed under Article 300-A of the Constitution of India, is having no substance, therefore, the said argument is hereby, rejected.
117. Accordingly, the issue no.(VI) is answered. Issue No.(V), i.e. "Whether in absence of any declaration, said to be issued within the meaning of Section 3 of the Defence of India Act, 1903, can this Court in exercise of power conferred under Article 226 of the Constitution of India confirmed the decision so
- 57 - LPA Nos.327 & 328 of 2023 taken by the authority?"
118. We are dealing with the issue that as to whether in absence of any declaration, the High Court in exercise of power conferred under Article 226 of the Constitution of India is to sit idle or to issue command by way of order of restrainment taking into consideration the threat perception upon the defence so as to achieve the object and intent of the Act, 1903.
119. Further, merely because, a declaration has not been given by the Central Government under the power of sub- delegation as per the provision of Section 3(2) read with Section 7 of the Works of Defence Act, 1903, can the issue of threat perception be given go-by.
120. This Court, on the basis of the aforesaid legal premise, is of the considered view that even though, there is conflicting guidelines of the Ministry of Defence and the Armed Personnel and as such, it needs to be decided that which guideline is to be accepted for the purpose of securing the object and intent of the Act, 1903.
121. The Ministry of Defence has come out with guideline dated 18.05.2011, although, it is not under Article 77 of the Constitution of India, but according to our considered view, the said decision is on analyzing the various aspects of the matter as also awaiting for the outcome of the amendment to be made in the Works of Defence Act, 1903, has carved out the mechanism for the purpose of allowing such construction by getting NOC and the another guideline of the year, 2016, since
- 58 - LPA Nos.327 & 328 of 2023 has been issued without any application of mind, based upon the various objections of the representatives of the members of Parliament, which is without consideration of the local incidents taken across the country. Therefore, this Court is of the view that even though, the guideline dated 18.05.2011 cannot be said to be a declaration said to be issued in consonance with the provision of Section 3(2) of the Act, 1903 but the same is certainly said to be proper in achieving the object and intent of the Act.
122. The law is well settled that the power which is to be exercised under Article 226 of the Constitution of India, cannot be exercised in a place where the Act is there with its object and intent but herein there is no notification or no rule has been framed for the purpose of carrying out the object and intent of the said Act, so that, the very object and intent of the Act be achieved.
123. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Barium Chemicals Ltd. & Anr. Vrs. Company Law Board & Ors., reported in AIR 1967 SC 295, wherein, at paragraph-38, it has been held as under:-
"38. But the maxim "delegatus non potest delegare" must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by
- 59 - LPA Nos.327 & 328 of 2023 no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted."
124. It is, thus, evident that the power which is to be exercised by the High Court under Article 226 of the Constitution is by way of extraordinary jurisdiction in order to do the substantial justice and further, even under Article 226 of the Constitution, the relief can be moulded keeping the facts into consideration for getting the ends of justice, as has been held by the Hon'ble Apex Court in the case of State of Rajasthan Vrs. Hindustan Sugar Mills Ltd. & Ors., reported in AIR 1988 SC 1621, wherein, it has been laid down at paragraph-4 which reads as under:-
"4. ... ...The High Court was exercising high prerogative jurisdiction under Article 226 and could have moulded the relief in a just and fair manner as required by the demands of the situation. ... ..."
125. Further, the Hon'ble Apex Court in the case of Air India Statutory Corporation & Ors. Vrs. United Labour Union & Ors., reported in (1997) 9 SCC 377, wherein, it has been held at paragraph-59, which reads as under:-
"59. The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts. On finding that either the workmen
- 60 - LPA Nos.327 & 328 of 2023 were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour under Section 10(1), the High Court has, by judicial review as the basic structure, a constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by a catena of decisions of this Court starting from Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1 : AIR 1975 SC 2299] to Bommai case [(1994) 3 SCC 1]. It would, therefore, be necessary that instead of leaving the workmen in the lurch, the Court properly moulds the relief and grants the same in accordance with law."
126. Further, the Act, 1903 is to protect by way of adequate security measure from the security threat and in such circumstances in order to achieve the object and intent of the Act, 1903, the High Court can well exercise the extraordinary original jurisdiction in absence of any declaration if not issued as the facts of the present case.
127. Accordingly, the issue no.(V) is answered. Analysis of facts
128. This Court, after having discussed the legal issues and facts, is now coming to the factual aspects by taking into consideration the facts of the appeal being L.P.A. No.327 of 2023.
129. In the present appeal, the factual aspect is not in dispute that the area where the construction is going on, is within the vicinity of the Defence Establishment. The Defence Establishment is established in the District of Ranchi having
- 61 - LPA Nos.327 & 328 of 2023 been involved in the regular military operation/exercise.
130. The map of the building in question has been sanctioned by the Ranchi Municipal Corporation and when the construction started, the appellant/writ petitioner has raised the objection in making construction by taking aid of the guideline dated 18.05.2011 which has been reiterated in guideline dated 06.10.2020, there cannot be any construction if it is in the vicinity of the Armed Forces due to the threat perception which is increasing day by day.
131. The matter came to the High Court having been approached by the writ petitioner/appellant, wherein, the plea was taken by the respondents that the maps since has been sanctioned post 21.10.2016 and as per which, the building in question is within the parameter of the sanction of the map. Further, the ground was taken that if the provision of NOC is not available in the local laws made for the purpose of sanction of map, there cannot be any insistence by the other authority for making out a requirement of an NOC making it a condition precedent for the purpose of sanction of the map.
132. Further, we have already come to the conclusion while answering the issue that none of the guideline which is being said to be circular, if the circular in the eye of purport of Article 77 of the Constitution of India and hence, considering the object and intent of the Act, 1903, the guideline issued by the Ministry of Defence dated 18.05.2011 will have more rationality in comparison to that of guideline dated 21.10.2016.
- 62 - LPA Nos.327 & 328 of 2023
133. Further, as has been referred hereinabove that in absence of any provision under the Jharkhand Municipal Act, 2011, there is no occasion to have the NOC but as we have already come to the conclusion while deciding the issue no.VII that on the basis of the provision as contained under Article 254(1) of the Constitution of India, the Works of Defence Act, 1903 will prevail upon the Jharkhand Municipal Act, 2011, since, by virtue of the clause as under Article 13(1) of the Constitution of India, it is now constitutionally valid.
134. The facts of letters patent appeal being L.P.A. No.328 of 2023 arising out of W.P.(C) No.788 of 2022 that all the constructions were prior to 18.05.2011 but subsequently, the further extension in the construction is being carried out and at that juncture, the objection has been made by the appellant due to want of NOC.
135. The ground has been taken by the learned counsel for the concerned respondent in the present appeal that the construction was there on the basis of the maps sanctioned on behest of the State Government for the purpose of construction of Mega Sports Complex and only because the extension in the construction is being carried out for the purpose of extension of the complex, no NOC is required.
136. The admitted fact herein is that the map was sanctioned prior to 18.05.2011 and at that time, there was no objection by the appellant but the moment the extension in construction is being carried out, the objection has been made.
- 63 - LPA Nos.327 & 328 of 2023
137. The said extension in construction has been decided to be carried out, hence, in view of the decision of the Ministry of Defence dated 18.05.2011, since, the new construction by way of extension is required to be carried out, hence, the principle of having NOC as required in the writ petition being W.P.(C) No.2573 of 2022 is equally required in this case also for the reason as referred hereinabove.
Issue No.VIII, i.e., "whether Article 14 of the Constitution of India envisages negality equality?"
138. The ground of parity has been taken that without any NOC, the construction has been allowed in the local vicinity and hence, it has been argued that the pick and choose policy cannot be adopted.
139. This Court, since, has come to the conclusion on the basis of the requirement on consideration of Article 254(1) of the Constitution of India, as such, if any map has been sanctioned by the local bodies in contravention of the Works of Defence Act, 1903, the same cannot confer any right upon the respondent herein to seek parity.
140. The same is based upon the principle that there cannot be any negative equality since the Article 14 does not envisage the negative equality, reference in this regard may be made to the judgment rendered by this Court in the case of Somath Haldar Vrs. State of Jharkhand & Others, passed in W.P.(C) No. 4920 of 2016 dated 13.06.2019, wherein, at para-10,
- 64 - LPA Nos.327 & 328 of 2023 following observation has been made:
"10. The learned counsel for the petitioner however submits by taking aid of the statement made in the counter affidavit that the settlement made in favour of other persons of the reservoirs who have been allowed to continue with the settlement and the case of the petitioner is likewise, this factual aspect is not in dispute since the Circular No.4125 has been issued on 17.10.2013 basing upon the provision of Section 126 of the Jharkhand Municipal Act, 2011 but the question herein would be that if anything has been done by the State authority which dehores the rule on that ground no relief can be granted to the subsequent person on the basis of the settled position of law that any illegality cannot be allowed to be perpetuated and further Article 14 of the Constitution of India envisages positive equality and not the negative equality as has been held in the cases of Basawaraj and Anr. vs. Special Land Acquisition Officer, reported in (2013) 14 SCC 81 pr.8 and Chaman Lal vs. State of Punjab and Ors., reported in AIR 2014 SC 3640 pr.15, which reads hereunder as:-
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on 5 others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong
- 65 - LPA Nos.327 & 328 of 2023 order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible.
15. Moreso, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise it may not be a ground to grant similar relief to others. This Court in Basawaraj & Anr. vs. The Spl. Land Acquisition Officer, AIR 2014 SC 746 considered this issue and held as under: " It is settled legal proposition that Article 14 of the Constitution is not meant to.................................................administration impossible."
141. The word 'negative equality' has been defined that if any decision has been taken contrary to any statutory provision, then the same cannot be allowed to be taken by way of parity otherwise, if the parity will be allowed to be continued based upon the wrong decision or giving go-by to the object applicable Act, the same will amount to perpetuating the illegality.
142. It is the settled position of law that illegality cannot be allowed to be perpetuated and the moment it came to the notice of the State or the competent authority, the same is to be rectified, as has been held by Hon'ble Apex Court in Chaman Lal Vs. State of Punjab and Ors., (2014) 15 SCC 715, wherein the Hon'ble Apex Court taking reference of the case rendered in Basawaraj & Anr. Vs. Special Land Acquisition Officer [(2013) 14 SCC 81] at paragraph 16, held as under:
"16. More so, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise, it may not be a ground to grant similar relief to others. This Court in Basawaraj v. Land
- 66 - LPA Nos.327 & 328 of 2023 Acquisition Officer [Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81 : AIR 2014 SC 746] considered this issue and held as under: (SCC p. 85, para 8) "8.It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh [Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745] , Anand Buttons Ltd. v. State of Haryana [Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164] , K.K. Bhalla v. State of M.P. [K.K. Bhalla v. State of M.P., (2006) 3 SCC 581] and Fuljit Kaur v. State of Punjab [Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455] .)"
143. It is, thus, settled position of law that the Article 14 of the Constitution of India envisages positive equality not negative equality.
144. The argument has been advanced in this regard by claiming the parity that certain construction is there but even accepting that construction is there and if it is in defiance to the object and intent of the Act, 1903 then if the same will be allowed to be applied, which will be nothing but will be
- 67 - LPA Nos.327 & 328 of 2023 claiming parity on the basis of negative equality, since, 'negative equality' has been defined that if any decision has been taken contrary to any statutory provision then the same cannot be allowed to be taken by way of parity otherwise, if the parity will be allowed to be continued based upon the wrong decision or giving go-by to the object of the applicable Act then the same will lead to perpetuating the illegality and in that view of the matter, the same will be said to be negative equality, while the Article 14 of the Constitution of India envisages positive equality.
145. Therefore, this Court is of the view that the ground of parity which is being derived, is based upon the principle of negative equality if the construction in question in the near-by area, is in the teeth of guideline dated 18.05.2011.
146. Accordingly, the issue no.(VIII) is answered. Conclusion
147. This Court, after gathering the factual aspects, has found that on the one hand, the respondent has taken aid of guideline dated 21.10.2016, while on the other hand, the Armed Forces (HQ) has emphasized on the guideline dated 18.05.2011.
148. This Court has already discussed herein the force of both these guidelines by negating the argument of the learned counsel for the parties who were construing these two guidelines to be circular, as per the issue no.(I) to (IV), as has been answered hereinabove.
- 68 - LPA Nos.327 & 328 of 2023
149. This Court has also considered while answering the aforesaid issues regarding the scope of the Act, 1903, based upon which, the circular dated 18.05.2011 has been prepared, However, the same was subsequently been modified by the guideline dated 21.10.2016.
150. This Court has considered the guideline to be applied taking into consideration the very object and spirit of the Act, 1903 on the touchstone of the principle of purposive construction of the statute and has come to the conclusion, as per the discussion made hereinabove that the guideline dated 18.05.2011 was issued by taking into consideration the two militant attacks in Sukna and Adarsh but without considering the aforesaid militant activities which were occurred after the guideline dated 18.05.2011 as the instance has been given hereinabove, the guideline has been issued on 21.10.2016.
151. This Court, by adopting the principle of purposive construction and taking into consideration the object of the Act, 1903 which mainly deals with the security issue of the defence of the country, is of the view that the same has already expressed our view as above that the guideline dated 18.05.2011 is to be given emphasis over and above the guideline dated 21.10.2016.
152. This Court has also considered the argument advanced on behalf of the respondents regarding the non-availability of any provision in the Jharkhand Municipal Act, 2011 having not been provided therein the provision to seek NOC from the
- 69 - LPA Nos.327 & 328 of 2023 Armed Forces by taking into consideration the purport of Article 254(1) of the Constitution of India holding therein that the Central Act i.e., Works of Defence Act, 1903 will prevail, so far as its object is concerned, will have to be given weightage for the purpose of seeking NOC from the Armed Forces before granting sanction under local municipal laws.
153. This Court has also considered the argument of the learned counsel for the respondents regarding the Right to hold Property as enshrined under Article 300-A of the Constitution of India coming to the conclusion that on the fact, it is not a case of deprivation from the right to hold the property but only to impose restriction, as per the discussion made while answering the issue no.VI.
154. This Court, after having answered the said issue and considering the factual aspect as also by taking into consideration the order passed by the learned Single Judge as contained in the impugned order, is of the view that the ground, as has been taken by the Armed Forces since by putting reliance upon the Circular dated 18.05.2011, cannot be said to be unjust and proper, reason being that after the incident of Sukna and Adarsh, the country has witnessed so many militant attacks on the Armed Forces.
155. This Court, after having discussed the factual aspect along with the legal issue and coming back to the order passed by the learned Single Judge has found that:-
(i) The learned Single Judge has considered the
- 70 - LPA Nos.327 & 328 of 2023 guideline to be a circular, said to be issued within the meaning of Article 77(3) of the Constitution of India and as such, has taken into consideration the said circular to have the binding effect.
(ii) The implication of principle of repugnancy in between the Jharkhand Municipal Act, 2011 and the Works of Defence Act, 1903 has not been taken into consideration. Although, it appears that the parties have not raised the issue but since we are dealing with the issues so as to answer the argument regarding the no requirement of NOC since it is not provided under the Jharkhand Municipal Act, 2011, hence, we have decided the said issue. The same ought to have been taken into consideration, based upon the issue of applicability of Jharkhand Municipal Act, 2011 but while answering the issue by applying the provision of Jharkhand Municipal Act, 2011, the implication of Works of Defence Act, 1903 has not been appreciated.
(iii) Further the learned single Judge has also not taken into consideration that how the guideline dated 21.10.2016 has been issued and what is the basis that is based upon the representation of the members of Parliament which has been issued without considering the threat perception across
- 71 - LPA Nos.327 & 328 of 2023 the country as the instances referred as above, which is now increasing, for example, some of the incidents are being referred as under:-
(a) On 02.01.2016, Militants attacked on security personnel at Pathankot where 7 security personnel were dead and 22 were injured.
(b) In September, 2016, Four Gunmen burst into a brigade headquarters in the town of Uri (Kashmir) where 18 Indian Soldiers were killed.
(c) In October, 2016, Militants attacked at Indian Army Camp, Baramulla, Kashmir.
(d) In November, 2016, Militants attacked on Army Base at Nagrota near Jammu City where 7 security personnel were killed.
(e) In February, 2019, incident of Pulwama Attack took place where 44 paramilitary forces were killed.
(f) In January, 2023, Militants attacked on Army Post in Rajaouri where 3 soldiers were killed.
(iv) The learned Single Judge has also not appreciated the very object of the Act, 1903.
(v) The individual interest cannot be allowed to be prevailed over the national interest which herein
- 72 - LPA Nos.327 & 328 of 2023 relates to the security aspects of the nation.
(vi) Moreover, merely imposing restrictions if cannot be construed to be depriving the Right to Property as envisages under Article 300-A of the Constitution of India.
156. This Court, based upon the aforesaid reason and taking into consideration legal aspects as discussed above, is of the view that the order passed by the learned Single Judge needs to be interfered with.
157. Accordingly, the order/judgment dated 05.04.2023 passed by the learned Single Judge of this Court in W.P.(C) No.2573 of 2022 with W.P.(C) No.788 of 2022, is hereby quashed and set aside.
158. In the result, both the appeals stand allowed.
159. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) I agree (Arun Kumar Rai, J.) (Arun Kumar Rai, J.) A.F.R. Rohit/