Telangana High Court
The Union Of India vs The State Of Telangana on 4 June, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition Nos.5357, 16252, 16875, 18780, 18781 and 20587 of 2023 and
4175, 4222, 4230, 4277, 4326, 4342, 6801, 6841, 6967,
7014, 7065, 7070, 7083, 7090, 7099, 7101, 7107, 7111,
7121, 7122, 7126, 7148 & 7581 of 2024
COMMON ORDER:
Since the issue involved in all these Writ Petitions is one and the same, they are being disposed of by this common order.
2. Heard learned Deputy Solicitor General of India appearing for the petitioners in all these Writ Petitions; learned Government Pleader for Municipal Administration and Urban Development; learned Standing Counsel appearing for Hyderabad Metropolitan Development Authority; learned Standing Counsel for Greater Hyderabad Municipal Corporation; Sri Abhay Kumar Sagar, learned Standing Counsel for Municipality; Sri K.Raghuveer Reddy, learned counsel appearing on behalf of respondent No.5 in W.P.Nos.5357 and 20587 of 2023; Sri Koda Satyanarayana Rao learned counsel appearing for respondent No.4 and Sri M.Dhananjay Reddy, learned counsel appearing for on behalf of respondent No.5 in W.P.No.4222 of 2024; and Sri K.Ramchandra, learned counsel appearing on behalf of the unofficial respondent in W.P.Nos.6967 and 7070 of 2024 and perused the record.
2A. Though notice is ordered to the unofficial respondents in this batch of Writ Petitions some of the notices are returned unserved. However, in view of the manner of disposal and the nature of lis involved, this Court is of the view that the matters can be disposed of without having the audience of the said respondents.
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3. For ease of reference, the facts as stated in W.P.No.4222 of 2024 are taken as basis for disposal of all these Writ Petitions.
4. This batch of Writ Petitions are filed by the Union of India assailing the action of the respondents-Municipal Corporation in not initiating appropriate action against the constructions being made by the unofficial respondents without obtaining No Objection Certificate (NOC) from the defence authorities in the land adjacent to such defence establishments.
5. It is the contention of the petitioners that originally G.O.Ms.No.168 Municipal Administration and Urban Development (M) Department dt.07.04.2012 provided for obtaining NOC from the concerned defence authorities mandatory, while applying and obtaining building permission from the concerned municipal authorities; that the said condition has been deleted/amended by the respondent-authorities under G.O.Ms.No.7 Municipal Administration and Urban Development (M1) Department dt.05.01.2016 without the consent or concurrence of the concerned defence authorities; that removal of condition of requirement of obtaining NOC from the concerned defence authorities is contrary to the Guidelines dt.18.05.2011 issued by the Ministry of Defence, Government of India, New Delhi; and that allowing such constructions immediately adjacent to the defence establishments, is contrary to the provisions of the Works of Defence Act, 1903 (for short, 'the WODA').
6. It is the further case of the petitioners that on account of the respondent-municipal authorities granting building permission without 3 insisting on obtaining NOC from the concerned Local Military Authority (LMA)/defence authorities, and the unofficial respondents are undertaking constructions on the basis of such permissions granted by the respondent- authorities in the vicinity of defence establishments without maintaining the minimum distance from the boundary of defence establishments as prescribed Guidelines dt.18.05.2011, call for initiation of action against the said constructions by the respondent-authorities, as the same is contrary to the prescription of requirement to maintain the distance of 100 meters from the boundary wall of defence establishment, thus, in contravention of WODA.
7. It is also contended on behalf of the petitioners that as per Guidelines dt.18.05.2011, NOC is required to be obtained, if any construction is coming up within 100 meters radius of defence establishment (for multistoried building of more than four storeys, the distance shall be 500 meters) and only upon issuance of such NOC by the LMA/defence authorities, the respondent-authorities are required to grant permissions/building approvals.
8. Petitioners further contend that though Guidelines dt.18.05.2011 were superseded/amended by proceedings dt.21.10.2016, as the same are not in accordance with the provisions of the WODA, the same were not given effect to. Therefore, the authorities were directed to follow the Guidelines dt.18.05.2011 only.
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9. Petitioners further contend that, on the LMA noticing the respondent - authorities have deleted/omitted the condition of requiring to obtain NOC for grant of building permission by amending G.O.Ms.No.168 dt.07.04.2012, vide G.O.Ms.No.7 dt.05.01.2016, the petitioners have addressed letters to the respondent-authorities by bringing to their notice regarding the security threat to military establishments/installations and requested to make necessary amendments to G.O.Ms.No.7 dt.05.01.2016 by ensuring that the condition of obtaining prior NOC for grant of building permission is restored. It is contended that in spite of numerous communications addressed by the LMA to respondent-authorities to issue necessary instructions to the municipal authorities directing them to not approve the building plans for four floors and above, which are within 500 meters distance from the defence boundary wall without obtaining NOC/security clearance from the LMA as per the guidelines dt.18.05.2011 as amended from time to time, no action has been taken thereon and on the other hand, permissions are being granted thereby exposing the defence establishment to security threat.
10. On behalf of the petitioners, it is also contended that the Guidelines dt.18.05.2011, which prescribe the requirement of maintaining minimum 100/500 meters distance from the defence establishment boundary wall at any point of time were not under challenge and therefore, the unofficial respondents also cannot claim that either their fundamental right is being affected on account of such restriction or that the same is in violation of 5 Article 300-A of the Constitution of India as the guidelines only require the owner of the land to obtain NOC from the LMA before approaching the respondent-authorities to obtain a building permission, whereupon the LMA could assess the security threat/perception by causing inspection of the site for issuing NOC.
11. It is also contended on behalf of the petitioners that the unofficial respondents are undertaking development/construction immediately within the vicinity of defence establishment and if such constructions are permitted by the respondent-authorities, the same would expose the activities of defence personnel to security risk; and that since, the guidelines dt.18.05.2011 are issued in exercise of powers conferred under Section 44 of the WODA, the same are binding on the respondent - authorities for granting permissions.
12. On behalf of the petitioners, it is also contended that the guidelines issued by the Ministry of Defence would have to be given importance and are required to be enforced as they are directly proportional to the Nation's security, as held by the the Hon'ble Supreme Court in the case of Gorakhnath Shankar Nakhw a v/ s. the M unicipal Com m issioner of M unicipal Corporation of Greater M um bai and others 1 and the Bombay High Court in the case of Vikram Delite Co-operative Housing Society Ltd., a Co-operative Housing Society, through its 1 Special Leave to Appal (C) Nos.3112/2023 dt.20.02.2023 6 Treasurer Vithal D. P atel and Ors. v/ s. Union of I ndia, through its Secretary to the M inistry of Defence and others 2 .
13. Per contra, learned Government Pleader for MA&UD appearing on behalf of the respective respondents in the Writ Petitions would submit that, in the meeting held by the representatives of CREDAI with official of State Government, Chaired by Chief Secretary on 28.08.2015, a request was made to relax the condition of insisting of obtaining NOC from the defence authorities for granting of building permission for ease of doing business in the State; and that based on the aforesaid request received from the CREDAI representatives, the State Government prepared a note proposing to dispense with the condition of requiring to obtain NOC from the defence authorities for applying to building permission, vide Note File dt.18.12.2015 and had circulated the same for approval of the Cabinet of the State Government and on being approval by the Cabinet on 02.01.2016, G.O.Ms.No.7 was issued on 05.01.2016 amending the condition in G.O.Ms.No.168 dt.18.04.2012.
14. Learned Government Pleader would further submit that the condition to obtain NOC for applying for building permission was incorporated under G.O.Ms.No.168 by the said authorities themselves, and in view of the request received from the representatives of CREDAI, the said condition was deleted. Learned Government Pleader, however, would 2 2022 SCC Online Bombay 6700 7 submit that though the condition of obtaining NOC from LMA was omitted in the Building Rules, it has been made clear while granting permissions/approvals that it would be the responsibility of the applicant to follow the applicable rules as prescribed by the defence authorities in their rules.
15. Learned Government Pleader further submits that insofar as grant of building permission is concerned, the petitioners cannot insist that the condition to insist for obtaining NOC from LMA is required to be incorporated in the Building Rules of the State and it is for the petitioners to take steps to enforce the provisions of WODA by themselves.
16. Learned Government Pleader further submits that if only there is inconsistency between the provisions of the Central Act with that of the State Act, the Central Act would prevail, and inasmuch the provisions of the GHMC/Municipalities Act are not inconsistent with the WODA and the power to enact laws with regard to the municipalities being State subject, the petitioners cannot insist that the respondent - State is required to make/enact laws in accordance with the requirement of the petitioners.
17. Learned Government Pleader further submits that either as per WODA or the Rules and Guidelines issued thereunder, if any restriction is imposed for allowing or not allowing construction in sites abutting to defence establishments, it is for the said authority to take steps for enforcing the same and it is for the said reason, the respondents- 8 authorities, while granting building permission, have amply made it clear that the building permission is being granted subject to the applicant taking up the responsibility to follow the applicable rules as prescribed by the defence authorities in their rules, and the petitioners cannot seek for implementation/enforcement of rules framed by the petitioners through the respondents-authorities.
18. Learned Government Pleader would further submit that the respondents-authorities by the Building Rules notified by it, vide G.O.Ms.No.168 dt.07.04.2012, had prescribed the distance from boundary of Defence Area/Military establishment as 500 meters for seeking clearance of Defence Authority, notwithstanding that the Guidelines dt.18.05.2011 issued by the petitioners prescribe, 100 meters from the radius of defence establishment (for multistoried building of more than four storeys the distance shall be 500 meters) which guidelines were amended by the petitioners themselves by guidelines dt.21.10.2016, whereby the requirement of maintaining distance of 100 meters (500 meters for multistoried of more than four storeys) of the boundary of defence establishments has been reduced to 10 meter in respect of defence establishments mentioned in Annexures A and 100 meters for defence establishment mentioned in Annexure B of the said guidelines.
19. Learned Government Pleader would further submit that merely on account of amendment issued to Building Rules, 2012, in particular to Rule 3 vide G.O.Ms.No.7 MA&UD dt.05.01.2016 for not insisting to obtain NOC 9 from the defence authorities for grant of building permission would not obliviate the responsibility of the person obtaining building permission to comply with the rules prescribed by the defence authorities for undertaking construction in any site abutting to defence establishments.
20. Learned Government Pleader thus submits that the petitioners are required to take action on their own for implementation/enforcement of the WODA and the Rules made thereunder and as such, the action of the respondents-State in amending its building Rules cannot be said as either being inconsistent with the provisions of the Central Act, for the said Act to prevail over the State Act or the petitioners to feel aggrieved to approach this Court by filing the present Writ Petition.
21. Sri K.Siddharth Rao, learned Standing Counsel for GHMC, appearing on behalf of the respective respondents in all these Writ Petitions states that the cases of the petitioners can be divided into two categories viz., pre-2016 and post-2016; that prior to issuance of G.O.Ms.No.7 dt.05.01.2016, since, the building permissions that were to be granted were governed by the building rules issued vide G.O.Ms.No.168 dt.07.04.2012, which contained condition relating to the requirement of obtaining prior clearance of defence authority in case of sites within 500 meter distance from the boundary of the defence area/military establishment the respondents-authorities were duly insisting for obtaining such NOC.
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22. Learned Standing Counsel would further submit that subsequent to the amendment of Building Rules notified vide G.O.Ms.No.7 dt.05.01.2016, building permissions were granted without insisting for obtaining of NOC from defence authorities. However, the responsibility was fastened on the applicants to follow the applicable rules as prescribed by the defence authorities in their rules, for undertaking construction in sites abutting to defence establishments, and granting of permission by the municipal authorities would not automatically entitle the applicant to undertake construction without complying with the conditions stipulated under the other laws, be it State or Central.
23. Learned Standing Counsel further submits that in most of the cases being complained by the petitioners of not taking any action by the respondent corporation, the constructions are made by private individuals without obtaining any permission or sanction from the respondent corporation; that in respect of such constructions made unauthorizedly on being brought to their notice, the respondents-authorities have initiated action by issuing show cause notice dt.29.11.2021 and also passing Speaking Order thereafter, holding the said constructions to be unauthorized and illegal constructions; and that the authorities would take steps for enforcing the said Speaking Order.
24. Learned Standing Counsel would further submit that amendment made to the building rules is only in relation to obtaining building permission from the respondent - corporation as per the building rules in 11 force to ensure that the construction complies with the conditions/rules as prescribed thereunder; and that in some of the cases being complained of by the petitioners, the identification of such constructions is pending and once such unauthorized constructions are identified by the respondents- authorities, the authorities would take further action in terms of the provisions of the GHMC Act.
25. It is also contended by the learned Standing Counsel appearing for the respective respondents that the term 'defence establishment' has not been defined, and the respondents-authorities were granting permissions by considering the distance from the location of the defence establishment within the defence area, as vast extent of land abutting to the defence establishment is under occupation of defence authorities.
26. Learned Standing Counsel further submits that post-2016, the guidelines issued by the petitioners themselves mention the required distance to be only 10 meters from the outer wall of such defence establishment/ installation for the restriction of requiring to obtain NOC, the petitioners cannot claim of the respondents granting building permission in violation of guidelines dt.18.05.2011; and that the guidelines issued by the petitioners do not have any binding effect on the respondent corporation of the State, much less the same having been issued under any statutory provision for it to be implemented by the respondent - corporation.
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27. Sri M.Dhananjay Reddy, learned counsel appearing on behalf of respondent No.5 in W.P.No.4222 of 2024 would contend that it had obtained layout sanction in respect of land admeasuring Acs.63.39 guntas in Sy.No.346 from HMDA authorities on 18.03.2020 and is only selling open plots in the layout to intending buyers and is not undertaking any construction therein.
28. Learned counsel would further submit that while the 5th respondent is taking development activities in respect of the layout permission granted to it, (putting on hold the permission granted to it), it has received notice dt.15.12.2021 from the petitioners addressed to the HMDA and municipal authorities with a copy marked to the 5th respondent herein pursuant to which, the HMDA authorities have issued letter dt.21.02.2022 informing the petitioners that the layout permission granted to it, vide proceedings dt.08.03.2020 is kept on hold and directed the respondents to obtain NOC from the defence authorities.
29. Learned counsel further submits that upon the 5th respondent submitting its explanation, the HMDA authorities had revoked the letter dt.21.02.2022; and that the aforesaid proceeding issued by the HMDA authorities revoking the withhold letter dt.21.02.2022 and restoring the layout permission dt.08.03.2020 granted in its favour, was not challenged by the petitioners even though a copy of the same was marked to the learned counsel, who had initially issued the notice to HMDA authority with a copy of the same being marked to the petitioners. 13
30. Learned counsel further submits that the petitioners by suppressing the proceedings dt.04.04.2022 and the guidelines issued vide circular dt.21.10.2016 have filed the Writ Petition in the year 2024; that the provisions of WODA on the basis of which petitioners are claiming that the respondent-authority is required to insist for obtaining NOC from the defence authorities/LMA while granting permission is similar to Land Acquisition Act and the petitioners without initiating proceeding by issuing notification under Section 3 of the WODA cannot claim that no development/construction can be made in lands adjacent to the boundary of the defence establishment/installation and such claim is in violation of Article 300-A of the Constitution of India.
31. On behalf of the 5th respondent, it is further contended that the guidelines dt.18.05.2011, or for that matter, guidelines dt.21.10.2016, do not specify that NOC is required in respect of all properties adjoining the boundaries of the defence area and since, the defence area includes vast extent of land within which such defence establishment is situated, the petitioners cannot insist that no development/construction can be undertaken adjacent to the boundary of the defence lands.
32. It is further contended on behalf of the 5th respondent that as per the guidelines dt.21.10.2016 issued by the Government of India, Ministry of Defence for issuing NOC for building constructions in the vicinity of defence establishments/installations, such establishments/installations have been divided into two parts, namely Part A and Part B; that as per 14 Part A of Annexure to the aforesaid guidelines, in respect of 193 stations as listed therein, security restrictions shall apply up to 10 meters from the outer wall of such defence establishments/installations in order to maintain clear line of sight for effective surveillance and any construction or repair activity within such restricted zone of 10 meters will only require prior NOC from LMA/defence authority; that insofar as 149 stations as listed in Part B of Annexure to the aforesaid guidelines, security restrictions in respect of defence establishments/installations shall apply up to 100 meters from the outer wall of such defence establishments/installations to maintain clear line of sight for effective surveillance and no construction or repair activity shall be permitted within 50 meters and height restriction of 03 meters (one storey) shall be applicable for the distance from 50 meters to 100 meters and any constructions or repair activity within such restricted zone between 50 to 100 meters will require prior NOC from the LMA/defence authorities.
33. Learned counsel further submits that the petitioners' property does not fall/located under any of the station/establishment mentioned at serial No.32 of Annexure A of the guidelines issued under the said circular and as such, the petitioners cannot insist for approaching the defence authorities for obtaining NOC to undertake development activity, having obtained layout permission for making plots from the concerned authorities; that the guidelines be it dt.18.05.2011 or dt.21.10.2016, cannot be given the status of a statute or Rules having been framed in 15 accordance with Section 44 of the WODA for them to have any binding effect.
34. In support of the aforesaid submissions, reliance has been placed on the decision of the Delhi High Court dt.11.01.2019, Bombay High Court, Madras High Court dt.02.09.2023 and that of the Apex Court in Babaji K ondaji Garad and others v/ s. Nasik M erchants Cooperative Bank Lim ited, Nasik and others 3 .
35. Sri K.Raghuveer Reddy, learned counsel appearing on behalf of respondent No.5 in W.P.No.5357 of 2023 would contend that the respondent had made construction of the building consisting of cellar + stilt + five upper floors in Plot No.75 Northern Part and 76 in Sy.No.24 situated at Peerancheruvu by obtaining permission from the concerned municipal authorities on 19.06.2021; that the aforesaid construction undertaken by the 5th respondent is 150 meters away from the military establishment; that the aforesaid construction made by the 5th respondent is governed by 2016 guidelines, which prescribes, security restrictions of 10 meters from outer wall of such defence establishment/installation; that it has not been issued with any notice mentioning violation, for the petitioners to file the Writ Petition against it nor any notice is received from the concerned municipality which had granted building permission in 3 AIR 1984 SC 192 16 his/its favour alleging any violation while proceeding with the construction for the petitioners to approach this Court.
36. Learned counsel would further submit that since the WODA being a special enactment, the said Act is required to be implemented in terms of provisions contained thereunder and the petitioners cannot seek the assistance of the respondents-authorities for alleged violation, if any under the said Act; that if there is any alleged violation under the Act, the petitioners are required to take action in terms of Section 37 of the Act and for the said reason also, the Writ Petition as filed by the petitioners is liable to be dismissed.
37. Insofar as W.P.No.20587 of 2023 is concerned, learned counsel would contend that the unofficial respondent therein had obtained building permission dt.16.05.2022 for construction of cellar + stilt + four upper floors in Plot No.152 and had made construction in accordance with the sanction plan and that the distance between the construction and the defence establishment is 250 meters and as such, the petitioners cannot maintain the present Writ Petition on the basis of the notice dt.29.08.2022 and thus, seeks for dismissal of the same.
38. Sri K.Ramchandra, learned counsel appearing on behalf of the unofficial respondents in W.P.No.6967 and 7070 of 2024 would submit that the unofficial respondents' houses in both the Writ Petitions were in existence since long, while unofficial respondent in W.P.No.6967 of 2024 17 had constructed house consisting of four floors in the year 2010, the house of the unofficial respondent in W.P.No.7074 of 2024 is only consisting of ground floor and in both the cases, no defence land is involved and as such, the petitioners cannot maintain the present Writ Petitions against unofficial respondent in both the Writ Petitions.
39. I have taken note of the respective contentions urged.
40. Before proceeding to consider as to whether the petitioners can raise an objection to the respondent - State amending its building rules notified vide G.O.Ms.No.168 dt.07.04.2012 under G.O.Ms.No.7 dt.21.10.2016 taking away the requirement of obtaining NOC from the defence authorities/LMA for grant of building permission is concerned, it is pertinent to examine the effect of guidelines issued by the petitioners.
41. Ministry of Defence, Government of India, has issued guidelines for issuance of NOC for building construction vide communication dt.18.05.2011 addressed to Chief of Army Staff, Chief of Air Staff and Chief of Naval Staff. In the said communication, it is noted that WODA imposes restrictions upon use and enjoyment of land in the vicinity of defence establishments and in view of two recent cases viz., Sukna and Adarsh, the same needs to be comprehensively amended, for which it is noted that process is put in motion and in the meantime, the guidelines are to be followed while issuing NOC for construction. 18
42. Though by the aforesaid communication, it is stated as amendment to WODA is put in motion to address security concern, admittedly, no amendment has been notified. In the meantime, Government of India, MoD has issued another circular/communication specifying the guidelines for issue of NOC for building constructions.
43. Both the guidelines issued vide circular dt.18.05.2011 and 21.10.2016, were subject matter of consideration before Division Bench of Delhi High Court in the case of Union of India v/ s. Governm ent of NCT Delhi 4 , wherein the Division Bench of Delhi High Court had noted that the "guidelines dt.21.10.2016 mentions that large number of representations have been received from elected representatives to review the guidelines issued in 2011 as difficulties are being faced by public in constructing buildings on their own lands, review of the guidelines dt.18.05.2011 was undertaken and the Government has decided to amend the guidelines issued vide guidelines dt.18.05.2011, 18.03.2015 and 17.11.2015." (underlining supplied by this Court)
44. The Delhi High Court by noting as above, considered clause 2(a) of the guidelines dt.21.10.2016, as under:
"2(a) Security restrictions in respect of Defence establishments/ installations located at 193 stations as listed in Part A of Annexure to this circular shall apply upto 10 meters from the outer wall of such Defence establishments/ installations to maintain clear line of sight 4 MANU/DE/3308/2022 19 for effective surveillance. Any construction or repair activity within such restricted zone of 10 meters will require prior No Objection Certificate (NoC) from the Local Military Authority (LMA)/Defence establishments."
45. Since, the Division Bench of Delhi High Court had held that Guidelines issued, vide circular dt.21.10.2016 to be an amendment to Guidelines dt.18.05.2011, the submission made on behalf of the petitioners that the same were not given effect to and the authorities were directed to follow the guidelines dt.18.05.2011 in absence of any further circular to the said effect, does not merit consideration.
46. Further, the issue of permission for construction within the vicinity of defence establishment has been subject matter of consideration before the Kerala High Court in W.C.No.9799 dt.08.02.2018; Madhya Pradesh High Court in M unna @ R am esh Yadav v/ s. Union of I ndia 5 ; Bombay High Court in Vikram Delite Cooperating Housing Society Lim ited 's case (1 supra); and High Court of Calcutta in the case of Com m andant, Ordnance Depot v/ s. the K olkata M unicipal Corporation 6.
47. In the above decisions rendered, the respective High Courts have analyzed the guidelines issued by the Ministry of Defence dt.18.05.2011 and guidelines dt.21.10.2016. The Calcutta High Court in the case of Com m andant, Ordnance Depot (6 supra), had an occasion to consider 5 W.P.No.16946 of 2016 dt.02.09.2023 6 MANU/WB/1005/2022 20 the effect of guidelines issued on 21.10.2016, over the guidelines dt.18.05.2011 which decision of the learned Single Judge of the Calcutta High Court was also affirmed by a Division Bench of the said High Court.
48. Without burdening this order with the findings recorded in the aforesaid decisions by the respective High Courts, it would suffice it to state that in all the aforesaid decisions, it has been consistently held that the guidelines issued vide circular dt.18.05.2011 specifying the restricted area from the defence establishment/installation stood amended, by guidelines issued vide circular dt.21.10.2016 and the said guidelines would apply in respect of building permissions obtained subsequent thereto.
49. The only case wherein a different view was taken is by the High Court of Jharkhand at Ranchi in the case of Union of I ndia v/ s. R anchi M unicipal Corporation and others 7 wherein the Division Bench, by applying the principle of purposive construction of the statute and also taking into consideration the militant attacks in Sukna and Adarsh, had held that the guidelines dt.18.05.2011 need to be given emphasis over the guidelines dt.21.10.2016.
50. The aforesaid divergent views expressed by High Courts in some cases, are subject matter of consideration before the Hon'ble Apex Court in S.L.P.(C) appeals.
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51. At this stage, it is pertinent to note that in a recent judgment, the Hon'ble Apex Court in the case of M / s.Goya R esorts P rivate Lim ited v/ s. Union of I ndia 8 , had an occasion to consider the scope of the WODA.
52. The Hon'ble Supreme Court in the aforesaid decision by considering the provisions of the WODA, had held that:
"14.... the 1903 Act is in the interest of the national security and defence but at the same time, under its guise the citizens cannot be deprived of or denied the use of their property illegally and in violation of the statutory provisions. There has to be a balance between the purpose and object of the 1903 Act and the legal right of the citizens to use and enjoy their property. The 1903 Act in its scheme does provide that balancing factor to be carried out by the authorities to take appropriate steps by giving show cause notice considering the claims, making an enquiry, making an award, and determining the compensation for the loss suffered." (underlining supplied by this Court)
53. The Apex Court by observing as above, while quashing the declaration and the notices impugned in the aforesaid civil appeals issued under Section 3 of the Act, however kept the aforesaid proceedings in abeyance till 31.05.2025 by granting liberty to the Central Government to publish a fresh declaration under Section 3 of the Act within the above time as stipulated.
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54. Having regard to the aforesaid decision of the Hon'ble Supreme Court, it is to be noted that in the facts of the present case, though on behalf of the petitioners it is contended that the Guidelines dt.18.05.2011, continue to operate requiring to obtain NOC in respect of constructions in sites adjacent to defence establishments, notwithstanding the issuance guidelines dt.21.10.2016, as noted hereinabove, since, both the aforesaid guidelines, were subject matter of consideration before various High Courts and in particular before the Delhi High Court and Division Bench of Calcutta High Court, this Court is in agreement with the view taken therein and holds that by Guidelines issued vide Circular dt.21.10.2016, the guidelines issued earlier on 18.05.2011 stood amended.
55. Another aspect of the guidelines issued is that the same are issued in the form of circulars addressed to the Chiefs of Army, Air and Naval Staff. It is not notified for general public to be aware or bound by the same. The effect of the said circulars issued is that, in case any construction is made within the vicinity or adjacent to defence establishment/installation, the authorities are required to take action as per WODA by acquiring the land/site or paying compensation to the owner for not allowing him to enjoy his property absolutely. Further, it is settled position of law that circulars issued do not have any statutory force and binds only authorities.
56. Though on behalf of the petitioners, it is vehemently contended that the respondent - State by doing away with the condition of requiring 23 to obtain NOC from defence authorities/LMA while obtaining building permission in respect of areas in the vicinity of defence establishments, is exposing the defence establishment to security risk and in spite of the petitioners raising objection for such omission, the same has not been considered by the respondents, it is to be noted that the building rules are framed by the respondent - State in exercise of powers conferred under the respective State enactments, namely Municipalities Act or GHMC Act, 1955, referable to Entry 5 of List II of 7th Schedule to Constitution of India. It is settled position of law that only when there is a conflict between an enactment made by the Union and the State, the law made by the Union would prevail and not otherwise (see R am avilas Tobacco Com pany v/ s. The Secretary 9 and Hoechst P harm aceuticals Ltd. v/ s. State of Bihar 10).
57. Since, the State in order to give impetus to infrastructural growth under its policy of ease of doing business, having amended the building rules, doing away with the requirement of obtaining NOC from defence authorities/LMA, for obtaining building permission in sites adjacent or in the vicinity of defence establishment/installation and on the other hand, imposing responsibility on the applicant seeking building permission to comply with the rules of the defence authorities, this Court is of the considered view that the petitioners can neither plead as not having a 9 1985 Suppl. SCC 476 10 1983 (4) SCC 45 24 restriction in the building rules of the respondents is contrary to the provision of WODA nor the respondent authorities granting building permission is contrary to WODA.
58. Further, WODA having been enacted in the year 1903, by the Parliament and being a Central Legislation, it is for the petitioners who are the authorities under the said Act to take action for its implementation on its own by initiating action thereunder rather than seeking for its enforcement through the respondents.
59. In the facts of the present case, though on behalf of the petitioners, it is contended that if guidelines dt.18.05.2011 were adhered to by the respondent authorities while granting building permissions, the same would result in the unofficial respondents requiring to obtain NOC from the LMA/defence authority, the respondents on the other hand contend that the State having taken a decision not to insist for obtaining NOC from the defence authorities for grant of building permission by them, however, having imposed condition in the building permission granted by them, that the person obtaining building permission is required to comply with the Rules of the defence authorities, if the site of construction is adjacent to defence establishment, it is for the petitioners to initiate action, if there is any violation.
60. As noted herein, since, both the Acts, viz., WODA and Municipalities Act are separate, if there is any violation of the respective enactment or 25 Rules made thereunder, it is only the authorities under the said Act can initiate action and it is not for the authority under other enactment to take any action for alleged violation.
61. Though on behalf of the petitioners, it is contended of building permission being granted in the vicinity of defence establishments/installations and construction made being contrary to the provisions of WODA, it is not shown to this Court of petitioners initiating any action against such constructions, by exercising powers under WODA or having taken steps by issuing notification/declaration under Section 3 and further action culminating in passing of Award under Section 12 by paying compensation.
62. Though on behalf of unofficial respondents who have undertaken construction/development, it is contended that since guidelines issued vide circular dt.21.10.2016 have categorized the defence establishments into Part A and Part B specifying that in respect of the establishments listed in Part A, the security restriction being only 10 meters and since all their constructions are beyond 10 meters, neither the petitioners nor the respondents can insist for obtaining NOC by approaching the LMA/defence authorities; and that at Serial No.32 in Part A of the guidelines dt.21.10.2016 issued by the Union of India wherein it mentions the defence establishment of Secunderabad in Ranga Reddy District of Telangana State consists of areas of Maredpalli, Lal Bazaar, Alwal, Amuguda, Mehdipatnam, Langar House, Kanchan Bagh, Golconda, 26 Ibrahim Bagh and Makaidarwaja, the security restriction up to 10 meters from outer wall can only be made applicable to those establishments mentioned therein and not other establishments, it cannot be said that defence establishment/installations mentioned therein Part A numbering to 193 stations and Part B are 149 stations only defence establishments/ installations, and there exists no other establishment, to which these security restrictions would apply and there is no other defence establishment/installation to which no restrictions are applicable.
63. On the other hand, if there is any other defence establishment/ installation which does not find mention either in Part A or Part B of Annexure to the guidelines to which the restriction of 10 meter or up to 100 meter, as the case may be applicable, in such cases, the restriction as may be notified by a specific notification or as specified in Section 7 of WODA would continue to apply.
64. Though On behalf of the unofficial respondents in W.P.No.4222 of 2024, it is further contended that since, the distance from the wall of the defence establishment is more or that the development being undertaken does not include construction and is only making a layout, firstly, it is to be seen as per the provisions of WODA, the same is applicable to any land adjacent or in the vicinity of defence establishment/installation from being put to use by the owner, the authorities are required to take action by issuing declaration/notification preventing such use by paying compensation. Thus, the claim of the unofficial respondents that it is only 27 making a layout of plots and selling them to intending purchasers would mean the unofficial respondent using the land, which the authorities under the WODA can restrict by following the procedure prescribed thereunder. Thus, the claim of the unofficial respondents in this regard does not merit consideration.
65. Even though on behalf of the petitioners and respondents, it is not shown to this Court of the areas covered by the present Writ Petitions being covered either by air force or under the army establishment at Secunderabad, however, judicial notice can be taken of the fact that there have been notifications issued from time to time concerning the Air Force Station, Hakimpet, Air Force Station Dindigal, in the State of Telangana, vide SRO No.12 dt.14.02.2007 which notification has been renewed on 13.01.2010.
66. Similarly, this Court has also come across notifications vide SRO Nos.136, 137 dt.19.05.1976 in respect of area in the vicinity of DRDL, Chandrayanagutta, and DMRL, Kanchanbagh, SRO No.49 dt.07.04.2006, in respect of the area in the vicinity of RCI, Vignyana Kancha Post Office, Hyderabad, SRO No.74 dt.22.10.2007 in respect of Advance system, laboratory, Kanchanbagh, Hyderabad, and SRO No.58 dt.04.06.2008, in respect of area in the vicinity of DLRL security restrictions have been notified. Thus, the claim of the unofficial respondents that it is only the 193 stations of defence establishments/installations which are required to 28 have security restrictions and not other, does not appeal to this Court for being accepted.
67. On the other hand, if any station is not mentioned either in Part A or Part B of Annexure to guidelines dt.21.10.2016, in respect of such stations, the restriction as specified in Section 7 of WODA would continue to apply subject to publication of notice under Section 3 of the WODA. Further, in respect of the stations which find mention in Part A of the Annexures to the guidelines dt.21.10.2016 are concerned, though the same mentions the army establishment as 'Secunderabad' under which various stations are mentioned, the area of coverage of the respective stations would be as per the operation jurisdictional activities of the defence authorities and is not based on local municipal jurisdiction.
68. The same can be explained by way of illustration - Ibrahimbagh Station of Secunderabad defence establishment is spread over the areas of Ibrahimbagh and also in the neighbourhood like the area of Bandlaguda Jagir and other areas, under the administrative control of the said station, would have to be considered as unit of the said station. Similar, such situation may also exist in case of Maredpalli/Alwal stations, if there exist separate unit in such locations under the respective stations. Thus, the contention of the unofficial respondents that the places whereat the constructions/developments have been undertaken by them are not mentioned in Serial No.32 of Part A of annexure to the guidelines dt.21.10.2016, the authorities cannot enforce guidelines of even security 29 restriction of 10 meter, in the considered view of this Court cannot be accepted as valid claim.
69. Further, it is to be noted that though various notifications have been issued by the Ministry of Defence, Government of India, notifying the areas within the vicinity of defence establishments for which the security restrictions would apply, no material is placed before this Court to show that the authorities having issued a declaration under Section 3 of the Act, and having taken further action, as contemplated thereunder, in order to claim that they being entitled to enforce restrictions imposed in terms of notification issued.
70. The Hon'ble Supreme Court in M / s.Goya R esorts P rivate Lim ited 's case (8 supra) had held that post issuance of notification under Section 3 of the Act, further steps in terms of the Act including causing enquiry and passing of award in terms of Section 12 being required to be undertaken within the time prescribed under the Act, failing which, the notification issued would stand lapsed, the Union cannot claim to continue with the declaration under Section 3 of the Act perpetually which not only is impermissible in law but arbitrary, unjust and unreasonable.
71. In the facts of the present case, the petitioners as well as the unofficial respondents having not placed any material before this Court as to the areas of the defence establishment of Secunderabad and its units mentioned therein, the Court cannot pass an order in vacuum accepting 30 either the claim of the petitioners or that of the unofficial respondents herein, as to the said area being covered or not covered by Annexure A attracting or not attracting the security restrictions.
72. Further, if any, notification is issued and the said notification being in force, the petitioners are required to take further steps in terms of the Act as held by the Apex Court in M / s.Goya R esorts P rivate Lim ited 's case (8 supra) in order to claim the restrictions in terms of Section 7 of the WODA or as specified under the specific notification are applicable. However, taking note of the fact that even before the Hon'ble Supreme Court since, it was pleaded that no further steps having been taken after issuing declaration/notification under Section 3 of the WODA, and the Hon'ble Supreme Court having granted the Union of India six months time to issue fresh declaration/notification under Section 3 of the WODA, by setting aside the declaration issued earlier, and taking note that security interest of the nation are of paramount importance, particularly the recent Pahalgam incident, this Court is of the view that personal interest should pave way for public interest. As noted herein above since, it is not shown to this Court of any notification having been issued under Section 3 of WODA and further, steps having been taken as specified thereunder within the time period prescribed thereunder, even in the present cases this Court is of the view that the following directions are to be given:
i) The petitioners are given time till 31.12.2025 to publish notification/declaration under Section 3 of the WODA, if not already issued 31 and implemented, after which, the notification/declaration shall come into force from the date of its publication.
ii) The petitioners shall not take any action on the basis of guidelines dt.18.05.2011 in respect of building permissions that have been obtained post 21.10.2016, whereby the security restrictions in respect of defence establishment and its stations notified in Part A of Annexure have been notified as 10 meters from the boundary wall of the defence establishment.
iii) The unofficial respondents herein are also restrained from undertaking any construction in the meantime till fresh notification/declaration are issued.
iv) The petitioners are directed to proceed strictly in accordance with the WODA after issuing fresh declaration/notification under Section 3 of the WODA.
73. Insofar as constructions made without obtaining any building permission from the respondent - municipal authorities, notwithstanding as to whether such construction is within the security restriction area or not, the concerned municipal authorities shall take action is accordingly with the provisions of the respective enactments expeditiously, as continuance of such poses threat to internal security of the Nation.
74. Subject to above observations and directions, the Writ Petitions are disposed of. No order as to costs.
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75. Miscellaneous petitions, if any, pending in these writ petitions shall stand closed.
___________________ T. VINOD KUMAR, J Date: 04.06.2025 GJ 33 THE HON'BLE SRI JUSTICE T. VINOD KUMAR Writ Petition Nos.5357, 16252, 16875, 18780, 18781 and 20587 of 2023 and 4175, 4222, 4230, 4277, 4326, 4342, 6801, 6841, 6967, 7014, 7065, 7070, 7083, 7090, 7099, 7101, 7107, 7111, 7121, 7122, 7126, 7148 and 7581 of 2024 04.06.2025 GJ