Karnataka High Court
Jambo Plastics Pvt. Ltd vs Chief Quality Assurance Establishment on 29 August, 2023
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST 2023
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.40510 OF 2017 (LB-BMP)
BETWEEN:
1. JAMBO PLASTICS PVT. LTD.,
HAVING ITS REGISTERED OFFICE AT
NO.11, 1ST CROSS, K.G. EXTN.,
OFF K.G. ROAD
BANGALORE - 560 009
REPRESENTED BY ITS DIRECTOR
MR. KIRAN KUMAR GADIA.
REPRESENTED BY ITS
POWER OF ATTORNEY HOLDER
MERUSHIKHAR INFRA LLP,
REPRESENTED BY ITS
DESIGNATED PARTNER
MR. KISHORE KUMAR.
2. MERUSHIKHAR INFRA LLP
A LIMITED LIABILITY PARTNERSHIP
'SOLUS', 11TH FLOOR,
NO.2, 1ST CROSS, J.C. ROAD,
BANGALORE - 560 027
REPRESENTED BY ITS
DESIGNATED PARTNER
MR. KISHORE KUMAR.
... PETITIONERS
(BY SRI YOVINI RAJESH ROHRA, ADVOCATE)
AND:
1. CHIEF QUALITY ASSURANCE ESTABLISHMENT
(WARSHIP EQUIPMENT)
2
MINISTRY OF DEFENCE (DGQA)
JALAHALLI CAMP ROAD
YESHWANTHPUR (PO)
BANGALORE - 560 022.
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGAR PALIKE,
HUDSON CIRCLE,
BANGALORE - 560 022.
3. JOINT DIRECTOR (TOWN PLANNING-SOUTH)
BRUHAT BENGALURU MAHANAGAR PALIKE
HUDSON CIRCLE
BANGALORE - 560 022.
...RESPONDENTS
(BY SRI UDAY HOLLA, SENIOR ADVOCATE FOR
SRI MANU K., ADVOCATE FOR R2;
SRI M.N. KUMAR, CGC FOR R1;
SMT. SUMANGALA SIMIMATH, ADVOCATE FOR R3 )
***
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF CONSTITUTION OF INDIA, PRAYING TO QUASHING THE
ENDORSEMENT BEARING NO.BBMP/ADDL.DIR/JD SOUTH/LP
0092/16-17 DATED 03.09.2016 ISSUED BY THE JOINT DIRECTOR
(TOWN PLANNING - SOUTH), BBMP, THE THIRD RESPONDENT
HEREIN (ANNEXURE-T) AND THE LETTER BEARING
NO.CQAE(WE)/WORKS/0720 DATED 15.07.2016 ISSUED BY THE
CHIEF QUALITY ASSURANCE ESTABLISHMENT (WARSHIP
EQUIPEMENT), MINISTRY OF DEFENCE (DGQA), THE FIRST
RESPONDENT HEREIN (ANNEXURE-S) AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 14.07.2023 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
S. SUNIL DUTT YADAV. J This Order has been divided into the following Sections to facilitate analysis:
BRIEF FACTS 4 ANALYSIS 10
A. Works of Defence Act, 1903 occupies the field 10 B. Authorities relied upon by the Respondents 26 C. Executive power cannot have the effect of abridging 28 rights under Article 300A and 19(1)(g) of the Constitution of India D. Whether the Guidelines could be construed to be an 34 exercise of power conferred under the Transaction of Business Rules and Allocation of Business Rules?
The present petition has been filed seeking for issuance of writ of certiorari to quash the endorsement at Annexure-'T' dated 03.09.2016 issued by the Joint Director (Town Planning-South) Bruhat Bengaluru Mahanagara Palike (BBMP) and has also sought for 4 setting aside of the letter dated 15.07.2016 issued by the Chief Quality Assurance Establishment (respondent No.1) at Annexure-'S'. The petitioner has also sought for issuance of writ of mandamus to direct respondent No.2 to consider the application submitted by the petitioners for issuance of building sanction plan without insisting for No Objection Certificate (NOC) from respondent No.1 in view of the Circular dated 21.10.2016 at Annexure-'V' issued by Ministry of Defence.
BRIEF FACTS:-
2. The petitioner No.1 is stated to be the owner of the land bearing Municipal No.70/1, BBMP, PID No. 2-172-70/1, Ward No.2, Tumkur Road, Bengaluru, morefully described in the Schedule. It is stated that the petitioner No.1 had entered into a Joint Development Agreement dated 08.09.2014 with petitioner No.2 for 5 the purpose of carrying out development of the residential project.
3. The petitioner No.2 had filed an application with respondent No.2-BBMP for sanction of residential plan on 19.06.2015. However, the respondent No.2 is stated to have issued an endorsement dated 29.03.2016 at Annexure-'M' directing the petitioner to obtain NOC from the Ministry of Defence in terms of the letter dated 14.01.2016 of the respondent No.1 [Chief Quality Assurance Officer, Ministry of Defence (DGQA), Government of India] and subsequently present the plan for sanction.
4. It is submitted that letter was addressed to the respondent No.2-BBMP to communicate with the respondent No.1 for issuance of NOC as regards the approval of building plan, that on 08.07.2016, letter was addressed to the respondent No.1 seeking for issuance of 6 NOC. On 15.07.2016, the respondent No.1 has addressed the letter stating that the construction put up by the petitioners is a potential security risk to the first respondent's Establishment and denied issuing of NOC, while relying on the letter dated 04.07.2016, issued by the Ministry of Defence.
5. It is stated that on the basis of number of representations received by the property owners and public regarding the difficulties faced, the Guideline/letter dated 18.05.2011 was revised and a new set of Guidelines dated 21.10.2016 (hereinafter referred to as 'the Guidelines') were issued.
6. After series of correspondences, the respondent No.1 is stated to have addressed a letter to the 'Additional DGQA (Naval),' Director of Quality Assurance (Naval), New Delhi seeking clarification with 7 regard to the issuance of NOC to the BBMP as regards approval of building plan submitted by the petitioners.
7. Accordingly, the petitioners having learnt that no reply had been sent by Additional DGQA (Naval) either to the first or second respondent clarifying the position with regard to issuance of NOC and accordingly, the present petition has been filed.
8. The statement of objections have been filed by respondent Nos.2 and 3 to the effect that in light of the endorsement at Annexure-'T' dated 03.09.2016, there was no discretion with the BBMP in terms of the letter dated 15.07.2016 of the Ministry of Defence.
9. It is further submitted that in terms of the communication dated 15.07.2016 addressed to the respondent No.2-BBMP, it was observed that the construction being a potential security risk, NOC cannot be given to the Establishment and that such stand was 8 reiterated by the higher Authority at the Head Quarters BQA(N) and the said issue has been taken up with the Ministry of Defence.
10. It is further submitted that despite the revised Guidelines, the petitioners are required to obtain NOC from respondent No.1.
11. The statement of objections has been filed by respondent No.1 on 05.03.2018 and subsequently additional objections were filed on 04.10.2021. The respondent No.1 has taken the stand that in terms of the Guidelines issued by the Ministry of Defence, NOC is to be obtained from the local Military Authority, while the construction is coming up within 100 Meters and in case of multistorey building of more than four storeys, then in such case, NOC is required where building is within a distance of 500 Meters from the compound wall of the Defence Establishment.9
12. It is submitted that the respondent No.1 is a Premier Quality Assurance Establishment under the Department of Defence Production and vital services are provided to the Defence Establishment and the proposed construction of the petitioners in the vicinity is a potential security risk. It is submitted that the Guidelines of 18.05.2011 is to be read alongwith the Guidelines of 17.11.2015.
13. It is further submitted that the endorsement is valid in law. Additional objections have been filed on 04.10.2021 contending that the Guidelines dated 18.05.2011 and 17.11.2015 are issued under the Government of India (Allocation of Business) Rules, 1961 and the said Guidelines amount to an Executive order.
14. It is further contended that there is no necessity to issue notification under Section 3 of the Works of Defence Act, 1903, as the petitioners are 10 permitted to construct a building subject to restrictions.
It is also asserted that other buildings in the vicinity do not violate applicable Guidelines.
ANALYSIS:-
A. WORKS OF DEFENCE ACT, 1903 OCCUPIES THE FIELD:-
15. The application of the petitioner for issue of sanction to the building plan has been kept in abeyance in terms of the endorsement at Annexure-'T' dated 03.09.2016 observing that the Authorities concerned with the Military Establishment, including the Ministry of Defence has refused to give NOC, as the proposed construction was a potential security risk.
16. The respondent No.2-BBMP while forwarding the request of the petitioner for issuance of NOC from the Chief Quality Assurance Establishment, Ministry of 11 Defence, has relied on the communication of respondent No.2-BBMP at Annexure-'R' dated 08.07.2016.
17. The respondent No.2-BBMP has relied on communication by Ministry of Defence (DGQA) Chief Quality Assurance Establishment (Warship Equipment), which had communicated that NOC cannot be given by the Office and same stand was reiterated by the Higher Authority, viz., Head Quarters (DQA)(N), which also has held that "construction is a security hazard and in turn had also raised the matter to MoD." It is further observed that the MoD, after perusal of the case has opined that the proposed construction is a potential security risk and construction should be stopped.
18. It is pertinent to note that insistence on NOC from the concerned Authorities of Defence Establishment is on the basis of the Guidelines for issue of 'No Objection Certificate' ('NOC') for building constructions 12 dated 18.05.2011, 18.03.2015, 17.11.2015 and Guidelines dated 21.10.2016 of the same nomenclature.
19. The entirety of the Guidelines collectively taken, seek to impose restriction regarding grant of sanction for building plans where constructions come up within the vicinity of Defence Establishment which are viewed as a security hazard and the obtaining of NOC from the specified Authority is deemed to be a pre-condition for sanction of building plan.
20. Sri Rajesh Chanderkumar, learned Senior Counsel appearing on behalf of petitioners has contended that the Guidelines referred to above collectively being in the nature of internal communication between the Ministry of Defence and the Chief of Army Staff, Chief of Navy Staff and the Chief of Air Force Staff cannot be interpreted to be an Executive instruction. It is further contended that the form in which such Guidelines exist 13 will not permit construing it to be a product of exercise of Executive power under The Government of India (Transaction of Business) Rules, 1961 nor under Government of India (Allocation of Business) Rules, 1961.
21. It is further contended that even if the same is in the nature of Executive instruction, it cannot have the effect of violating the right of petitioner No.2 under Article 19(1)(g) of the Constitution of India, which is a developer as also the right of the petitioner No.1 under Article 300A of the Constitution of India.
22. It is also contended that Works of Defence Act 1903, when occupies the field, there cannot be recourse to exercise of executive power in such field.
23. Before dealing with the contention raised by the petitioners, the context in which the Guidelines have been issued requires to be noted and the guidelines 14 themselves spell out as follows, "It is felt that Works of Defence Act, 1903 which imposes restrictions upon use and enjoyment of land in vicinity of Defence Establishments, needs to 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." 1
24. It is noticed that the Works of Defence Act, 1903 has been enacted with the object of providing for imposition of restrictions upon use and enjoyment of land in the vicinity of Works of Defence. Section 3 of the said Act provides for declaration regarding imposition of restrictions and Section 7 provides for restriction and is as follows:-
"3. Declaration and notice that restrictions will be imposed.--(1) Whenever it 1 An extract from Guideline dated 18.5.2011 (Annexure - P) and the same is reiterated in subsequent Guidelines.15
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 is necessary to keep the land free from buildings and other obstructions.16
"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, 17 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
(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. 18
(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 19 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 General Officer Commanding the District and on such conditions as he may prescribe.
(c) Within a third boundary which may extend to a distance of five hundred yards from the crest of the outer 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.20
25. The circumstances under which restrictions could be imposed and the nature of restrictions to be imposed upon enjoyment of property rights as regards proposed buildings in vicinity of the Defence Establishments under the Guidelines on one hand and the Works of Defence Act on the other are detailed as per the comparative Table hereinbelow:-
THE WORKS OF GUIDELINES FOR GUIDELINES FOR GUIDELINES FOR GUIDELINES FOR DEFENCE ACT, 1903 ISSUANCE OF NOC ISSUANCE OF NOC FOR ISSUANCE OF NOC FOR ISSUANCE OF NOC FOR FOR BUILDING BUILDING BUILDING BUILDING CONSTRUCTIONS CONSTRUCTIONS DATED CONSTRUCTIONS DATED CONSTRUCTIONS DATED DATED 18.05.2011 18.03.2015 17.11.2015 21.10.2016 Section 7 provides as While the process of These Guidelines detail a Amendments to guidelines The Central Government follows: amendment of the comprehensive review of by adding a second has amended guidelines Works of Defence the Guidelines dated proviso under para 1(b) of issued under Circular After publication of the Act, 1903 has been put 18.05.2011 so as to Circular of even number dated 18.05.2011 read notice as per section in motion, the address issues that had dated 18.05.2011 as with Circulars dated 3(2), such of the following instructions arisen from the follows: - 18.03.2015 and following restrictions as have been issued to implementation of the said 17.11.2015, in the Central Government regulate grant of Guidelines, which is as Wherever buildings/ consultation with may in its discretion NOC. follows:- structures of four storeys services, in the following declare therein shall Following guidelines or more already exist manner: -
attach with reference to are therefore laid The recommendations within 500 meters of the such land, namely- down: arising from the review periphery of any Defence a) Security restrictions in undertaken have been duly establishment and the respect of Defence
(a) Within an outer (a) in places where considered by the Ministry construction proposed is establishments/ boundary which, except local municipal laws and it has been decided to in line with or behind i.e., installations located at so far as is otherwise require consultation modify the in the shadow or shield of 193 stations as listed in provided in section 39, with the Station aforementioned circular such building/ structure, Part A of Annexure to sub-section (4), may Commander before a dated 18.05.2011 by the State Government/ this circular shall apply extend to a distance of building plan is adding a proviso under Municipal Corporation upto 10 meters from the two thousand yards approved, the Station para-1(b) to the effect that may, alter obtaining outer wall of such from the crest of the Commander may NOC from LMA/Defence comments from the LMA Defence establishments/ outer parapet of the convey its views after establishment would not and giving due installations 10 maintain work,-- seeking approval from be required in respect of a consideration to the same clear line of sight for next higher authority construction for which decide whether to approve effective surveillance.
(i) no variation shall be not below the rank of permission had been such proposal or not. Any construction or made in the ground- Brigadier or issued by a competent LMA shall give his repair activity within level, and no building, equivalent within four local municipal authority comments within a period such restricted zone of 10 wall, bank or other months of receipt of prior to 18.05.2011 (date of 30 days from the date meters will require prior 21 construction above the such requests or of circular). However, of receipt of a reference No Objection Certificate ground shall be within the specified this proviso shall not from the state (NoC) from the Local maintained, erected, period, if any, required apply to any amendment government/ Municipal Military Authority added to or altered by law. Objection/ to the said construction Corporation. This order (LMA) | Defence otherwise than with the views/ NOC will be permission with regard to will be implemented establishments.
written approval of the conveyed only to State height, if such amendment prospectively. 2 [General Officer Government agencies has been allowed after b) Security restrictions Commanding the or to Municipal 18.05.2011. In respect of proposals for in respect of Defence District], and on such authorities, and under construction between the establishments/ conditions, as he may no circumstances shall The other provisions of boundary of the Defence installations located at prescribe; be conveyed to the circular dated establishments and the 149 stations as listed in builders/private 18.05.2011 will remain existing structure as Part B of Annexure to
(ii) no wood, earth, parties. unchanged. indicated above and this circular shall apply stone, brick, gravel, within 500 meters of the upto 100 meters from the sand or other material (b) Where the local Defence establishments, outer wall of such shall be stacked, stored municipal laws do not the guidelines as indicated Defence establishments/ or otherwise so require, yet the above and within 500 installations to maintain accumulated: Station Commander meters of the Defence clear line of sight for feels that any establishments, the effective surveillance. Provided that, with the construction coming guidelines contained in Any construction or written approval of the up within 100 meter circular dated 18.05.2011 repair activity shall not 3 [General Officer (for multistorey with regard to NOC from be permitted within 50 Commanding the building of more than the LMA shall continue to meters. Further, a height District] and on such four storeys the apply. Other provisions of restriction of 03 meters conditions as he may distance shall be 500 the circular dated (one Storey) shall be prescribe, road-ballast, meters) radius of 18.05.2011 and applicable for the manure and agricultural defence establishment 18.03.2015 will also distance from 50 meters produce may be can be a security remain unchanged. to 100 meters. Any exempted from the hazard, it should refer construction or repair prohibition: the matter activity within such Provided also that any immediately to its next restricted zone between person having control higher authority in the 50 to 100 meters will of the land as owner, chain of its command. require prior No lessee or occupier shall In case the next higher Objection Certificate be bound forthwith to authority is also so (NoC) from the Local remove such road- convinced, then the Military Authority ballast, manure or Station Commander (LMA) / Defence agricultural produce, may convey its establishments. without compensation, objection/views to the on the requisition of the local municipality or 3. It is further provided Commanding Officer; State Government that where local agencies. In case the municipal laws require
(iii) no surveying municipal authority/ consultation or approval operation shall be State Government do or NoC from the LMA / conducted otherwise not take cognizance of Station Commander than by or under the the said objection, before a building plan is personal supervision of then the matter may be approved, compliance to a public servant duly taken up with higher such statutory authorized in this authorities, if need be requirements shall behalf, in the case of through AHQ/ MoD. continue to be land under the control applicable.
of military authority, by (c) Objection/ views/ the Commanding NOC shall not be 4. The procedure for Officer and, in other given by any authority issuance of NOC shall be cases, by the Collector other than Station the same as contained in 22 with the concurrence of Commander to the Circular dated the Commanding local municipality or 18.05.2011.
Officer; and State Government
agencies and shall not
(iv) where any be given directly to
building, wall, bank or private parties/
other construction builders under any
above the ground has circumstances.
been permitted under
clause (i) of this sub- (d) NOC once issued
section to be maintaind, will not be withdrawn
erected, added to or without the approval
altered, repairs shall of the Service Hqrs.
not, without the written
approval of the 2. These instructions
[General Officer will not apply where
Commanding the constructions are
District], be made with regulated by the
materials different in provisions of the
kind from those existing acts/
employed in the notification viz.,
original building, wall, Cantonments Act,
bank or other 2006, Air Craft Act,
construction MoCA, 1934, Gazette
Notification SO 84(E)
(b) Within a second dated 14.01.2011 (as
boundary which may revised from time to
extend to a distance of time), Works of
one thousand yards Defence Act, 1903,
from the crest of the etc. In such cases
outer parapet of the provisions of the
work, the restrictions concerned Act/
enumerated in clause Notification will
(a) shall apply with the continue to prevail.
following additional
limitations, namely:--
(i) 4 [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
23
1 [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 2 [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 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
24
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, 3
[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.
26. The question of resorting to exercise of Executive power where a statute passed in exercise of legislative power is in operation, does not arise. The Apex Court has observed in State of Sikkim v. Dorjee Tshering Bhutia2 as follows:
"15. The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity...."2
(1991) 4 SCC 243 25
27. Accordingly, when the legislative scheme contained in the Act provides for a methodology for imposition of restriction regarding proposed constructions in the vicinity of a Defence Establishment, there cannot be resort to exercise of Executive power for imposing of such restrictions.
28. As it is clear that Guidelines have been issued during the interregnum when steps are afoot to amend the Works of Defence Act, recourse to Guidelines during such period is impermissible. When power is required to be exercised under the statute in a particular manner, there cannot be recourse to achieve the same consequence in a different manner by recourse to exercise of Executive power.
26B. AUTHORITIES RELIED UPON BY THE RESPONDENTS
29. The Respondents have relied on the following judgments to substantiate their contentions, which are distinguished as follows:-
The decisions of Bombay High Court in Union of India v. State of Maharashtra and Others3, S.S.V. Developers and Hiral Dinesh Vora v. Union of India and Others4 and Hindustan Petroleum Corporation Ltd., v. The Municipal Corporation of Greater Mumbai5, rested heavily on the interpretation of Section 26 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), while observing that the said provision takes within its fold the power to consider other relevant material and accordingly upheld the insistence of NOC from the Defence Establishment.3
2016 (4) Bom CR 549 4 2014 (2) Bom CR 541 5 2012 (5) Bom CR 379 27 However, in the present case, no case is made out regarding existence of statutory provision under the Municipal law providing for obtaining of NOC.
In the case of Sea Kunal Corporation Pvt.
Ltd. v. Municipal Corporation of Greater Mumbai and Others6, the High Court of Bombay merely noticed the relaxation in the restriction as regards building permission granted prior to 18.05.2011.
Further, the contention that the Guideline was without statutory backing and hence could not infringe upon the right under Article 300A or under Article 19 of the Constitution of India and such infringement could be only by a statutory law was neither contended nor discussed.6
2019 (2) ABR 766 : 2020 (1) ALLMR 616 28 C. EXECUTIVE POWER CANNOT HAVE THE EFFECT OF ABRIDGING RIGHTS UNDER ARTICLE 300A AND 19(1)(g) OF THE CONSTITUTION OF INDIA
30. Insofar as the petitioner No.2 - Developer is concerned, the right to carry on occupation, trade or business including of developing property would be a right falling within Article 19(1)(g) of the Constitution of India and restriction to be imposed upon such right under Article 19(1)(g) would be only by a law under Article 19(6) which is by a legislative law and cannot be by an Executive action.
31. Article 13(2) of the Constitution of India stipulates that State shall not make any law which abridges right under Part-III which would include a right under Article 19. The Constitution Bench of Apex Court in State of Madhya Pradesh and Another v. Thakur Bharat Singh (Bench of 5 Judges)7 has considered the 7 AIR 1967 SC 1170 29 validity of an order made in exercise of power under Section 3 of the Madhya Pradesh Public Security Act, 1959, whereby restriction was placed on the movement of a citizen. As the order under Section 3 was an Executive order, it was contended that Article 19 restricts the power of the State to abridge rights by way of Executive instruction without legislative backing. The Apex Court while refusing to permit such Executive action to curtail rights abridging fundamental rights has observed as follows:-
"6... Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued.
7. We are therefore of the view that the order made by the State in exercise of the authority conferred by Section 3(1)(b) of the 30 Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Article 352 no immunity from the process of the Court could be claimed under Article 358, of the Constitution, since the order was not supported by any valid legislation."
32. In the facts of the case referred to above, the reference to rights refers to the fundamental rights under Article 19(1)(d) of the Constitution of India. Accordingly, an extension of the same logic would lead to the conclusion that the fundamental right under Article 19(1)(g) of the petitioner No.2 cannot be abridged by Executive action and must be only by legislative action.
33. The same legal position is reiterated by the Apex Court in Union of India v. Naveen Jindal8, where a flag code contained in an Executive instruction of the Central Government sought to impose restrictions on the fundamental right of 19(1)(a) and was struck down on 8 (2004) 2 SCC 510 31 the ground that the restriction on the right under 19(1)(a) could be only by a legislative law under Article 19(2) and law as contemplated would not include Executive instructions. The relevant observations made by the Apex Court are as follows:-
"28. Before we proceed further, it is necessary to deal with the question, whether Flag Code is "law"? Flag Code concededly contains the executive instructions of the Central Government. It is stated that the Ministry of Home Affairs, which is competent to issue the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed in terms of Article 77 of the Constitution of India. The question, however, is as to whether the said executive instruction is "law"
within the meaning of Article 13 of the Constitution of India. Article 13(3)(a) of the Constitution of India reads thus:
"13. (3)(a) 'law' includes any ordinance, order, bye-law, rule, regulation, notification, custom or 32 usage having in the territory of India the force of law;"
29. A bare perusal of the said provision would clearly go to show that executive instructions would not fall within the aforementioned category. Such executive instructions may have the force of law for some other purposes; as for example those instructions which are issued as a supplement to the legislative power in terms of clause (1) of Article 77 of the Constitution of India. The necessity as regards determination of the said question has arisen as Parliament has not chosen to enact a statute which would confer at least a statutory right upon a citizen of India to fly the National Flag. An executive instruction issued by the appellant herein can any time be replaced by another set of executive instructions and thus deprive Indian citizens from flying National Flag. Furthermore, such a question will also arise in the event if it be held that right to fly the National Flag is a fundamental or a natural right within the meaning of Article 19 of the Constitution of India; as for the purpose of regulating the exercise of right of freedom guaranteed under Articles 19(1)(a) to (e) and (g) a law must be made."
(emphasis supplied) 33
34. Insofar as restriction being imposed on the right to construct within the vicinity of a Defence Establishment including restrictions to construct buildings upto a certain height which may amount to infringement of the right under Article 300-A of the Constitution of India, the Apex Court speaking through a Constitutional Bench (5 Judges) in K.T. Plantation Private Limited and Another v. State of Karnataka9 has observed as follows:-
"168. Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression "property" in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law."9
(2011) 9 SCC 1 34 Accordingly, the right of the owner of the property, i.e. petitioner No.1 to obtain sanction of building plan which is a concomitant right of property cannot be abridged by an Executive fiat as in the nature of Guideline in the present case. Accordingly, the Guidelines would be illegal insofar as they infringe upon the right of the petitioner No.1 to enjoy his property. D. WHETHER THE GUIDELINES COULD BE CONSTRUED TO BE AN EXERCISE OF POWER CONFERRED UNDER THE TRANSACTION OF BUSINESS RULES AND ALLOCATION OF BUSINESS RULES?
35. A perusal of the Guidelines dated 18.05.2011, 17.11.2015 and 21.10.2016 would indicate that the said Guidelines are not issued in the name of the President.
36. Though it has been argued by learned Additional Solicitor General appearing for the respondent through Video Conference that the Guidelines have been passed in exercise of power conferred under the 35 Government of India (Transaction of Business) Rules, 1961 as well as Government Of India (Allocation of Business) Rules, 1961, the same cannot be accepted, as both the Rules having been framed under Article 77(3) of the Constitution of India are required to be in the name of the President. In the present case, none of the Guidelines are in the name of the President. Article 77(1) stipulates that all Executive action of Government of India shall be expressed to be taken in the name of the President and accordingly, Rules made by the President under Article 77(3) are also required to conform with the condition that exercise of Executive power must be in the name of the President.
37. The observations of the Apex Court in State of Uttaranchal and Another v. Sunil Kumar Vaish and Others10 has observed as follows:-
10
(2011) 8 SCC 670 36 "24. ... The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2)..."
38. Though the petitioner has not challenged the validity of the Guidelines, however, in light of finding recorded that Executive Guidelines have no place when field is occupied by Legislation, the Guidelines cannot be relied upon by the Union Government to impose restriction as long as the Works of Defence Act, 1903 is in operation and is not amended.
39. Accordingly, the endorsement issued by relying on such Guidelines are not backed by any legal foundation and accordingly, Annexure-'T' dated 03.09.2016 and Annexure-'S' dated 15.07.2016 are set aside and the respondent-BBMP to proceed with consideration of grant of sanction plan from the stage at 37 which it was kept in abeyance in accordance with the applicable laws and Rules without insisting for adherence to the Guidelines and complete the process as per law, within a period of three months.
Accordingly, the petition is disposed off.
Sd/-
JUDGE VGR