Bombay High Court
Vikram Delite Co-Operative Housing ... vs Union Of India And 6 Ors on 9 December, 2022
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KANCHAN Digitally signed by
KANCHAN
ORDINARY ORIGINAL CIVIL JURISDICTION
VINOD VINOD MAYEKAR
Date: 2022.12.09
MAYEKAR 14:38:00 +0530
WRIT PETITION NO. 3543 OF 2018
1. Vikram Delite Co-op. Hsg. Soc. Ltd., )
a Co-operative Housing Society, )
registered under the Maharashtra )
Co-operative Housing Societies Act, 1961, )
having its Registered address at New )
Maneklal Estate, Behind Ramleela )
Ground, L.B.S. Marg, Ghatkopar(W), )
Mumbai 400 086 through its Treasurer )
Vithal D. Patel. )
)
2. Shree Ramkrishn Enterprises, )
a registered Partnership Firm, )
having its office at Office No. 503 )
th
5 floor, Wing-B, Lords Building , )
Above Croma Showroom, Sector 15, )
CBD Belapur, Navi Mumbai 400 614. )
)
3. Parikshit Miglani, )
one of the Partners of the Petitioner No. 2 )
having his office at Mulji House, )
P.D'Mello Road, Mumbai 400 009. )...Petitioners.
V/s.
1. Union of India, )
through its Secretary to the )
Ministry of Defence, having its address )
at South Block, New Delhi. )
Copy for Respondent No. 1 to be served )
on the Standing Counsel for the )
Government of India, Ministry of Law )
and Judiciary having office at New Aaykar )
Bhavan, Maharshi Karve Road, )
Churchgate, Mumbai 400020. )
)
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2. The State of Maharashtra, )
through its Secretary to the Ministry )
for Urban Development having its )
address at Mantralaya, Mumbai 400 023. )
Copy of Respondent No. 2 to be served on )
Government Pleader, Bombay High Court, )
Original Civil Jurisdiction, Mumbai. )
)
3. Municipal Corporation of Greater Mumbai, )
a statutory body constituted under the )
provisions of Mumbai Municipal Act, 1888,)
having its office at Mahapalika Building, )
Mahapalika Marg, Mumbai 400 001 )
through its Municipal Commissioner. )
)
4. Municipal Commissioner of Greater Mumbai,)
having his office at Mahapalika Building, )
Mahapalika Marg, Mumbai 400 001 )
)
5. Chief of Naval Staff, )
having his office at Integrated Head )
Quarters, Ministry of Defence(Navy), )
New Delhi 110 011. )
)
6. Flag Officer, Commanding in Chief, )
Head Quarters, Western Naval Command, )
Shahid Bhagat Singh Marg, )
Mumbai 400 023. )
)
7. Executive Engineer, Building Proposal II, )
Municipal Corporation of Greater Mumbai, )
Raj Legacy Bldg., Paper Mill Compound, )
L.B.S. Marg, Vikhroli, Mumbai 400 083. )...Respondents.
Mr. Girish Godbole a/w. Mr. Prantik Majumdar i/b. Mr. Mark Dmello
and Shaun Pinto, for the Petitioners.
Mr. Anil Singh, Additional Solicitor General and Mr. Aditya Thakar,
Mr. D.P. Singh alongwith Ms. Carina Xavier and Ms. Smita Thakur, for
Respondent Nos. 1, 5 and 6.
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Mr. Himanshu Takke, AGP, with Mr. S.B. Gore, AGP for Respondent
No. 2 State.
Mr. A.Y. Sakhare, Sr. Advocate a/w. Ms. Madhuri More and Ms. Oorja
Dhond i/b. Mr. Sunil K. Sonawane, for Respondent Nos. 3, 4 and 7-
MCGM.
CORAM : R.D. DHANUKA &
KAMAL KHATA, JJ.
RESERVED ON : 3rd OCTOBER, 2022
PRONOUNCED ON : 9th DECEMBER, 2022
Judgment (Per R.D. Dhanuka, J.) :-
. By this Petition filed under Article 226 of the Constitution of
India, the Petitioners seek a Writ of Certiorari for quashing and setting
aside the impugned letter dated 17/11/2016 and 30/11/2016 issued by
the Flag Officer Commanding in Chief, Western Naval Command
(Respondent no.6 herein). The Petitioners also seek a Writ of
Mandamus against the Respondent No. 6 herein to forthwith withdraw
and/or cancel the impugned letters and seek direction against the
Respondent Nos. 3, 4 and 7 to forthwith withdraw and/or cancel the
impugned Condition No. 8 from the amended Development/ Building
Permission dated 23rd November, 2017.
2. The Petitioners also seek a Writ of Mandamus against the
respondent No. 3 through the Respondent No.4 to issue further
building permissions including the full Commencement Certificate in
respect of the Writ Plot without insisting for a NOC from the Naval
authorities in terms of the IOD dated 4th January, 2016.
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3. In alternative to prayer clauses (a) to (g), the petitioners also seek
a Writ of Certiorari for quashing or setting aside the impugned
communication dated 21st January, 2022 issued by the Rear Admiral
Sanjeev Sharma and seek a Writ of Mandamus to forthwith process and
issue a formal NOC in respect of the Writ Plot to respondent No. 3.
4. Some of the relevant facts for the purpose of deciding this Writ
Petition are as under :
(a) On 18th May, 2011, the Ministry of Defence of Union of
India issued non statutory executive instructions regarding the
guidelines for the issuance of a NOC for the construction of the
buildings on lands adjacent to Defence Establishments. It is the case
of the Petitioners that those guidelines do not have a force of statutes
since it recorded that it was necessary to amend the works of Defence
Act, 1903 and pending such amendment it was necessary to issue
instructions in the interim with an objective to strike a balance between
the security concerns of the forces and the rights of public to undertake
the construction activities on their lands.
(b) On 25th April, 2014, Petitioner No. 1 Society decided to proceed
with the redevelopment of its old buildings which were in a dilapidated
condition, and appointed the Petitioner No. 2 as the Developer. On
25th April, 2014, the Letter of Intent was issued in favour of the
Developer. The members of the Petitioner No. 1 Society vacated their
respective flats between July to September, 2014 and were being paid
compensation for the temporary alternate accommodation by Petitioner
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No. 2.
(c) On 18th March, 2015, the Ministry of Defence Union of India
modified the earlier Circular dated 18th May, 2011. It was directed that
the guidelines dated 18th May, 2011 will not apply for the buildings
where permissions were granted prior to 18th May, 2011.
(d) On 6th October, 2015, the Airport Authority of India granted a
height NOC of 32.66 meters with a top elevation of 49.41 meters in
respect of the said project.
(e) On 17th November, 2015 the Ministry of Defence, Union of India
issued a Circular amending the guidelines dated 18 th May, 2011 and
added a proviso under para 1-B of the Circular dated 18th May, 2011.
(f) It is the case of the petitioners that on 21st November, 2015 the
Municipal Corporation prepared a detailed scrutiny report of the
proposed redevelopment, since the proposed construction was more
than 375 meters away from the Naval Establishment and since there
were several buildings having height of more than four floors and
there was no reference about the NOC from the Navy, since the said
NOC was not required.
(g) On 4th January, 2016, the Municipal Corporation issued an IOD
under section 346 of the Mumbai Municipal Corporation Act, 1888
(MMC Act) approving the construction of the building having four
Wings with basement, stilt and nine upper floors and a top elevation of
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32.55 meters. It is the case of the Petitioners that the said IOD was
granted considering the height permitted by the Airport Authority of
India.
(h) On 4th April, 2016, the then Defence Minster of Union of India
addressed a letter to the then Chief Minister of State of Maharashtra
stating that the height of the structure may be as per the applicable
municipal laws.
(i) On 21st October, 2016, the Ministry of Defence of Union of India
issued a Circular amending the earlier Circular dated 18 th May, 2011
and Circulars dated 18th March, 2015 and 17th November, 2015. The
said circular was addressed to the Chief of Naval Staff.
(j) It is the case of the Petitioners that Part-A of the Annexure to the
Circular enlists 193 Defence Establishments where the security
restrictions were reduced only upto 10 meters. In respect of 149
stations listed in Part-B of the Annexure, the distance was reduced to
100 meters. It is the case of the Petitioners that almost all
establishments in Part-B are in the border areas abutting Pakistan and
China where the threat perception is very high comparatively.
(k) On 7th November, 2016, the Urban Development Department
(UDD) of State of Maharashtra issued a Circular regarding the
procedure to be followed for a NOC of the Defence Department based
on the letter dated 21st October, 2016.
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(l) On 17th November, 2016 the Navy issued a FAX Message
contending that the directives of the Ministry of Defence of
Government of India were applicable only to the Army Establishments
and not to the Naval Establishments. On 30th November, 2016, the
Western Naval Command of Navy addressed a letter to the Principal
Secretary, Urban Development Department, Government of
Maharashtra stating that the Circular dated 21st October, 2016 of the
Ministry of Defence of Government of India was not applicable to the
Naval Establishments but applicable only to the Army Establishments.
(m) On 10th December, 2016, the Municipal Corporation issued a
notice under section 354 of the MMC Act, 1888 for the demolition of
the building since it was dilapidated. The Technical Advisory
Committee of the Municipal Corporation confirmed the category of
building of the Petitioners as C-1 category on 21st June, 2017.
(n) On 15th August, 2017, the Petitioner No. 1 executed a
Development Agreement in favour of the Petitioner No. 2. Petitioner
No. 2 developer purchased full TDR of approx. 2053 sq. mt. by
spending Rs. 5,54,82,103/-. In pursuance to the directions issued by the
Municipal Corporation, one building was vacated by the Petitioners.
On 17th October, 2017 Municipal Corporation issued a Commencement
Certificate upto plinth level. According to the Petitioners, no condition
for obtaining a NOC from the Navy was incorporated. The Petitioners
thus had no occasion to assume that such a NOC would be required.
(o) On 20th November, 2017 the Executive Engineer(Building
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Proposal) addressed a letter to the Navy and requested for the grant of a
NOC. On 23rd November, 2017, the Municipal Corporation imposed a
condition No. 8 demanding the submission of a NOC of the Naval
Department before applying for a full Commencement Certificate in
response to the application of the Petitioners for the sanctioning of the
amended plans.
(p) On 22nd December, 2017, the Executive Engineer (Building
Proposal) submitted a note to the Municipal Commissioner. It was
mentioned that within 500 meters of the Ghatkopar Naval base, there
were 19 projects in N Ward and 23 projects in L Ward for which
occupation certificate was granted and 148 projects in N Ward and 32
projects in L Ward where the projects were under construction. It was
recorded that there was no notification under the Works of Defence
Act, 1903. The directions were sought in view of the stand of the Navy
that circular applied dated 20th October, 2016 applies only to Army
establishment. The Municipal Commissioner passed an order to call a
joint meeting and in the meantime directed not to process the proposal
till the NOC of Navy is received.
(q) On 2nd January, 2018, the Navy passed the first impugned order
and rejected the request for grant of NOC on the sole ground that it was
sought after work has commenced on ground upto basement top slab
level. The Navy requested that NOCs be sought prior to issue of
commencement certificate in the future. On 23rd May, 2018, the
Executive Engineer, Building Proposal again submitted a proposal to
the Municipal Commissioner indicating that according to the various
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circulars, it was for the Municipal/State Authority to take a final
decision and recommended grant of amended plans, commencement
certificate and further commencement certificate.
(r) The Municipal Commissioner passed an order on the said
proposal on 30th August, 2018 asking the Executive Engineer to send a
detailed letter to Navy on that issue. It was also directed to inform the
Navy that the Corporation would wait for one month for a response,
failing which the Corporation would process the proposal as per the
Rules and as per approved plans.
(s) It is the case of the petitioners that the petitioner no.2 has paid
the monetary compensation to the members of the petitioner no.1 as
per the chart at page 430. On 19th June, 2018, the Architect of the
petitioners made a representation showing requisite drawings and
photographs, showing existence of buildings between project of the
petitioners and Navy boundary wall justifying that Naval NOC was not
required. The said representation of the architect was forwarded by the
Municipal Corporation to the Navy on 22nd June, 2018 contending that
there existed four multi storied buildings directly located between the
projects of the petitioners and Naval Depot boundary.
(t) On 4th September, 2018, the Navy passed another impugned
order refusing to grant NOC without assigning any reasons for such
refusal. On 3rd October, 2018, the petitioner no.1 submitted a
representation to the Corporation requesting for deletion of impugned
condition no.8 contending that there was no security hazard and also to
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consider the plight of 66 members of society who were out of their
homes.
(u) During the pendency of this petition, the petitioners filed
additional affidavit on 10th January, 2019 to place on record the
documents indicating grant of NOC by Navy to several other projects
after commencement of construction. He submitted that some of the
NOCs were signed by Mr.Pradeep Joshi, Rear Admiral who had
himself signed the impugned orders refusing to grant NOC to the
petitioners on the ground that construction had started prior to the grant
of NOC and there was no provision in the guidelines to do so. It is the
case of the petitioners that even according to the Municipal
Corporation, the project of the petitioners is about 421 meters from the
outer boundary wall of the Naval establishments.
(v) On 8th December, 2019, Navy filed further affidavit of Rear
Admiral Mr.S.S.Suriaraj pointing out that NOC for CTS No.244-247
was not of New Taj Building but was for the adjoining land. The
counsel for the petitioners agreed to submit the revised proposal
providing for RCC Vertical Louver Vision Type Cutters, there will be
no terraces, a slopping roof without any access to the roof will be
provided. This Court directed submission of such plan and its
consideration by the Corporation.
(w) On 6th December, 2021, the Architect of the petitioners submitted
revised proposal. On 27th December, 2021 and 4th January, 2022, the
Corporation approved the proposal after verifying that the revised plans
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are of approvable nature. The Municipal Corporation also approved
the same. On 21st January, 2022, the Navy once again declined to grant
NOC and contended that the Naval Depot would be visible from the
terrace of the proposed building.
(x) The said letter of Navy was forwarded by the Assistant Engineer,
Building Proposal, Municipal Corporation vide letter dated 4 th
February, 2022. The petitioners accordingly applied for the amendment
in the writ petition so as to impugn the decision of Navy dated 21 st
January, 2022 by adding prayers H1 and H2. On 25th February, 2022,
Navy filed additional affidavit in reply to the amended petition
contending that even the alternate proposal was not acceptable for four
unsustainable reasons.
5. Mr.Godbole, learned counsel for the petitioners invited our
attention to various documents annexed to the writ petition and the
pleadings filed by the respondents. He tendered synopsis and written
submissions for consideration of this Court along with compilation of
judgments. It is submitted that the modified guidelines issued by the
Ministry of Defence, Government of India dated 21st October, 2016 are
applicable to all Defence Establishments since they are issued to the
Chiefs of Army, Air and Naval Staff.
6. It is submitted that Part A of the Annexure thereby covers
various establishments in Mumbai at item nos. 19 and 20. He submitted
that Part B of the Annexure in fact covered 149 establishments, all of
which are in sensitive border areas on the Pakistan and China Borders.
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He submitted that the said circular has been accepted by the
Government of Maharashtra by circular dated 7th November, 2016. He
submitted that the stand taken by the respondents that the amended
guidelines dated 21st October, 2016 are applicable only for Army units,
is unsustainable and is in fact absurd.
7. It is submitted that the guidelines dated 18 th May, 2011 as
modified on 17th November, 2015 clearly stated that if the proposed
construction is in line (shadow) or behind (shield) of the existing four
storied or more building within 500 meters, it is the prerogative of the
Municipal/State Authority to approve the proposal for construction. He
submitted that in this case, the modified proposal of the petitioners
providing for (i) RCC Vision Cutting Louvers, (ii) No lift machine
room and water tanks on the top floor, (iii) provision of slopping roof
which is inaccessible by any stairs and (iv) no terrace, has been
approved by the Corporation. The said guidelines further stated that in
terms of the revised guidelines dated 17th November, 2015, the decision
of the Corporation is final and binding on Navy.
8. It is submitted that the letter dated 4th April, 2016 of the then
Defence Minister makes it clear that the terms "in line with or behind"
are "by the shadow or shield" are meant to indicate construction
proposed which is in line with or any shadow or shield of existing
structures within 500 meters. The entire defence of Navy based on an
unknown concept of existence of partial shadow and shield and
absence of complete shadow and shield based on horizontal width from
the proposed construction is not supported by the guidelines.
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9. It is submitted that the guidelines have no force of statute and in
fact as indicated in the first guidelines dated 18 th May, 2011, there was
a stop gap arrangement pending the proposed amendment to the Works
of Defence Act, 1903. The decision making process is flawed and
smacks arbitrariness. It is submitted that the only reason for refusing to
grant NOC on the application made by the petitioners that the
construction work had started before applying for NOC is absurd. In
atleast four cases, the NOC had been granted post commencement
certificate and after commencement of construction work.
10. It is submitted by the learned counsel that the plea raised by the
Navy in the affidavit in reply alleging threat perception is totally
untenable and contrary to the position of record. He submitted that in
case of (i) New Taj Apartment with ground + 7 floors and having full
line of sight of Naval Depot, is at distance of 60 meters with only LBS
Road in between. (ii) a building with height of approximately 40
meters where SRA is the Planning Authority, is abutting the boundary
of the Depot and has full line of sight of the Naval Depot even from the
2nd floor and (iii) that there are 22 NOCs that have been issued by the
Naval Authorities for projects in Mumbai out which 4 NOCs have been
issued to projects in Ghatkopar area. Each of the 4 projects in
Ghatkopar have direct line of sight to the Naval Depot at Ghatkopar.
He relied upon the photographs annexed at pages 660 to 663 of the
affidavit in rejoinder filed by the petitioners.
11. It is submitted by the learned counsel that Naval Depot is
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surrounded on all 4 sides by high rise buildings higher than the
petitioners buildings such as (i) Neelkant Dhara, (ii) Parvati Heritage,
(iii) Aaradhya Residency, (iv) Exocita & Premier by HDIL, (v) Slum
Building across the street from the Naval Depot, amongst many others.
He also relied upon the google map at page 802 of the affidavit in
rejoinder along with photographs.
12. It is submitted by the learned counsel that the impugned action
does not satisfy the Wednesbury principle of reasonableness. He
submitted that when a defence of partial shield/shadow unknown to the
guidelines was raised by the respondents, the petitioners submitted a
proposal which takes care of all apprehensions including deletion of
terrace. The said apprehension was however rejected by raising a
contention that from the terrace, there will be line of sight.
13. It is submitted that when vision cutters of Aluminum Composite
Panels were proposed by the petitioner, it was opposed by the
respondents on the ground that it may corrode. The permanent RCC
Louvers Vision Cutters were proposed by the petitioners which were
even approved by the Corporation. However, the Municipal
Corporation rejected the said proposal on the same ground that the
RCC Vision Cutters can also be removed.
14. It is submitted by the learned counsel that it is also the case of
the Municipal Corporation that the Naval establishment at Worli is
visible from some part of the building but NOC has been granted. The
land of the petitioner society is a privately owned land and not a
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defence land. 66 members of the petitioner society are on the street
from the year 2014, when all but 4 members had vacated. The
developers had spent more than Rs.12.58 crores on payment of transit
accommodation (Rent) excluding corpus. He submitted that about
44.14 crores have been already spent by the petitioners as of March
2022. He submitted that there is no public interest and/or the security
concerns likely to be compromised even remotely.
15. Learned counsel for the petitioners invited our attention to the
text of the speech of the learned Minister annexed to the affidavit in
rejoinder and more particularly in paragraph (13). He submitted that
even according to the said speech, any building if existed upto 500
sq.mtrs., there was no problem in granting permission.
16. Learned counsel for the petitioners tendered a compilation of
judgments and the documents. He relied upon the following
judgments:-
(i) The judgment of Division Bench of this Court in
case of Tirandaz Subha Niketan Co-operative Housing
Society Ltd. & Ors., vs. Union of India & Ors., (2019) 2
AIR Bom R 748 (paragraphs 2, 40 and 41);
(ii) The judgment of Division Bench of this Court in
case of Runwal Constructions vs. Union of India & Ors.,
(2021) 4 Bom C.R. 57 (paragraphs 5, 11, 37, 109 and
121);
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(iii) The judgment of Rajasthan High Court in case of
Union of India vs. M/s.S.R.Land Square Private Limited
& Ors., 2018 SCC OnLine Raj 199 (paragraphs 8, 44 and
61);
(iv) The judgment of Delhi High Court in case of UOI
vs. GNCT of Delhi & Ors. in Writ Petition (C) No. 6901
of 2017 and connected matter dated 11th January, 2019
(paragraphs 16 and 18);
(v) The judgment of Kerala High Court in case of
M.P.Hassan Kuhi vs. Union of India in Writ Petition (C)
No. 9798 of 2013 (paragraphs 2 and 3);
(vi) The judgment of Kerala High Court in case of
Fathimathul Raseena D/o. Ummer vs. Kannur
Municipality, Kannur & Ors., in WP(C) No. 14883 of
2013 (paragraphs 2 to 5).
(vii) The judgment of Division Bench of this Court in
case of Sea Kunal Corporation Pvt. Ltd. vs. Municipal
Corporation and others, (2019) 2 AIR Bom.R. 766
(paragraphs 7, 9 and 29).
17. It is lastly submitted by the learned counsel for the petitioners
that the petitioners are ready and willing to allay all the fears of Navy
at its own cost.
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18. Mr.Anil Singh, learned Additional Solicitor General for the
respondent nos.1, 5 and 6 on the other hand made following
submissions :-
(a) The Material Organization, Mumbai situated at Ghatkopar is a
sensitive and vital unit of the Indian Navy. The proposed construction
is at a distance of 421 mtrs. as per the petitioner and 375 mtrs. from the
north east side as per the Navy from the boundary of the Material
Organization. The proposed construction is of four wings A, B, C, D
having the configuration as Basement + stilt + ground + 1 st to 9th upper
floors. The proposal to redevelop and issuance of Letter of Intent in
favour of the petitioners are only in 2014 i.e. much after MRTP, DCR
and the guidelines were already in force. The respondent nos. 5 and 6
were never approached for a NOC prior to grant of the limited
permissions obtained by the petitioners. According to the petitioners,
these facts are not disputed by the petitioners.
(b) It is submitted that the right to develop is not an unconditional
right but is a right subject to and depending upon the satisfaction of the
terms and conditions contained in the letters of sanction, approval in
that behalf so also the planning laws. The MRTP and DCR both
required and obliged the consideration of the safety and security
elements whilst considering the grant of development permissions.
(c) It is submitted that the guidelines dated 18th May, 2011 provides
for the requirement for issuance of NOC for building constructions.
The NOC of Defence Establishments is not only necessary but is in
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fact a mandatory duty of the Planning Authority to insist for NOC of
Defence Establishment while considering proposal for building
permissions.
(d) It is submitted that a Division Bench of this Court has
considered and noted the importance and sensitive nature of the very
same establishment i.e. the Material Organization, Ghatkopar in case
of Sunbeam Enterprises vs. Municipal Corporation of Greater
Mumbai, (2019) SCC OnLine Bom 1059. The said Material
Organization, Ghatkopar would also qualify as a Naval establishment
within the meaning of Naval establishment setout in section 3(12A) of
the Navy Act, 1957.
(e) It is submitted that before granting any NOC by the Local
Military Authority, a detailed exercise is undertaken in each case based
on its independent factors. Each construction or each proposal for
NOC is viewed independently and separately. The individual factors
are duly considered before granting or refusing a NOC. Local Military
Authority conducts a physical investigation which involves not merely
an inspection of the proposed site of construction but an
investigation/inspection of the entire neighbourhood.
(f) It is submitted that the detailed assessment/analysis/report are
prepared by the Local Military Authority which reports are then placed
for further consideration before the Headquarters Western Naval
Command, which not only deliberates upon the same but if it deems fit/
necessary may even conduct a physical inspection itself to ascertain the
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factual position. It is only after this detailed analysis that the
respondent evaluates the interest of national security vis-a-vis the
defence establishment with respect to grant of NOC.
(g) It is submitted by the learned Additional Solicitor General that
the guidelines dated 17th November, 2015 issued by the Ministry of
Defence for issue of No Objection Certificate for building construction
near defence establishments was further clarified and confirmed by the
erstwhile Defence Minister of India vide his letter dated 4th April, 2016
to the Chief Minister of Maharashtra.
(h) It is submitted by the learned Additional Solicitor General that
merely because one building which is for example of a height of 10
floor has been granted NOC, another building of 10 floors would
automatically be entitled to an NOC would not be correct. He
submitted that similarly it would not be appropriate to state that merely
because 4 proposed constructions had been granted NOC's, even the
petitioners are entitled to such an NOC. Each NOC and each proposed
construction is separate and independent. Various critical factors may
differ between two constructions which may otherwise appear similar.
All factors are taken into consideration before addressing the issue of
grant or rejection of NOC.
(i) It is submitted that insofar as the plot of the petitioners is
concerned, the said plot is admeasuring 3590.20 sq.mtrs. and is curved
plot. The construction of the petitioners is coming up at a distance of
375 mtrs. from the North-East side of Material Organization, Mumbai.
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(j) It is submitted that there is no dispute that the NOC has been
granted to the construction proposed on CTS No. 244 to 247 on or
about 25th May, 2016. However, since then several acts breaching the
security and safety measures are now considered necessary in wake of
such incidents both within India and internationally, NOC was not
granted in favour of the petitioners. It is submitted that the grant of
NOC in the new scenario of heightened security is required to be
considered on the present day, considering no construction has till date
commenced on the said plot. The respondent no.6 is in process of
revoking the grant of NOC to the construction proposed on CTS Nos.
244 to 247.
(k) It is submitted that the petitioners though was obliged to apply
for NOC from the Local Military Authority before commencing the
constructions did not obtain such NOC and commenced the
construction.
(l) It is submitted that upon detailed analysis of the site visit, it is
found that the petitioners' construction will have a direct line of sight to
core Depot at Material Organization Mumbai. He submitted that even
though the petitioners construction partially falls in shadow/shield of
four buildings viz. Mukund Society, Neelkanth Dhara, Police Staff
Buildings and New Taj Apartment, it is not entirely in the
shadow/shield of any building. The proposed construction is partially
in the shadow/shield not on the basis of height but on the basis of
width. He submitted that the portion of the proposed construction was
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not in the shadow or shield of any building.
(m) It is submitted that even the proposed height is reduced from
32.55 mtrs. to 28.65 mtrs. claimed to be at par with New Taj
Apartment, it would not be correct for the petitioners to canvas that the
structure of the petitioners would be in the shadow or shield of said
New Taj Apartment.
(n) It is submitted that during the visit, the representative of the
petitioner no.2 present at the site mentioned that the old building was
comprising of 4 wings i.e. Wing 'A' comprised of ground +3 floors
configuration, Wing 'B' comprised of ground + 4 floors configuration,
Wing 'C' comprised of ground + 2 floors + part terrace and Wing 'D'
comprised of stilt + 4 floors configuration had been demolished. The
petitioner no.2 had proposed to construct a single building of four
wings in the proposed configuration of basement + stilt + 1 to 9 upper
floors configuration.
(o) It is submitted that the defence authorities are experts to
determine the threat perception to the security and safety of the nation.
This Court cannot interfere with the refusal of the NOC by the
respondent no.2 in favour of the petitioners. It is submitted by the
learned Additional Solicitor General that the petitioners have
deliberately obfuscated and manipulated certain documents attached to
the writ petition and sought to contend that the same was an NOC
granted to an adjoining plot of land and thereby urged that the Navy
was being arbitrary. On this ground itself, the petitioners are not
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entitled to invoke discretionary power of this Court.
(p) It is submitted that when the petitioners were issued Letter of
Intent in the year 2014 or thereafter with the provisions of MRTP, DC
Regulations were in force and were applicable. The petitioners have
commenced work with a view to try and urge as if a fait accompli has
taken place. The petitioners cannot be allowed to take advantage of its
own wrong.
(q) It is submitted that since the Indian Navy is expert in the field of
safety and security, it would be within the sole domain of the
Navy/Defence to determine the threat perceptions and the safety and
security aspects. The question as to whether the proposed construction
is within the shadow and/or shield of an existing building would be
within the domain of the Navy. The petitioners have not alleged or
pleaded or in any event demonstrated any malafide against the
respondents.
(r) It is submitted that the new proposal submitted by the petitioners
was also considered afresh and after detailed analysis, it was found
that the same still persisted safety and security threat and accordingly
NOC could not be granted.
(s) It is submitted that under the provisions of Works of Defence
Act, there is a provision of payment of compensation and acquisition.
The security threats prevail on one day, may be different on another
day. The petitioners thus cannot allege any discrimination or bias on
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the part of the respondents while rejecting the NOC in favour of the
petitioners. The defence has not objected to all construction as would
be ended from the record. However the Navy cannot compromise on
the safety and security of the nation. There is no negative equality
provided in Article 14. It is for the petitioners to show as to how this
construction is permissible despite the security threats.
(t) Insofar as submission of the learned counsel for the petitioners
that the new proposal submitted by the petitioners has been approved
by the Municipal Corporation and thus the decision of the Municipal
Corporation would be binding on the Navy is concerned, he submitted
that even the said order passed by the Municipal Corporation is without
prejudice to the rights and contentions of the parties. It is the duty of
the planning authority to obtain the NOC of the Defence for the
construction within the vicinity of the Defence establishment. The
proposed construction is admittedly within the vicinity of the Defence
establishment.
(u) Learned Additional Solicitor General submitted a sealed envelop
for consideration of this Court on the security aspect. Mr.Godbole,
learned counsel for the petitioners made a statement that if this Court is
of the opinion that the information made available in the sealed
envelope is required to be considered, the Court has ample power to
consider such material.
(v) It is submitted by the learned Additional Solicitor General that
the restriction imposed for carrying out construction in the building of
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24
the petitioners is based on some intelligence report/record. The public
interest has to be given importance as against the private interest. The
alterations suggested by the petitioners cannot be considered. There
has to be uniformity. The respondents have to conduct measures while
considering keeping in mind the precautionary measures that have been
to be taken while considering the proposal for carrying out
construction.
(w) It is submitted that though there may be some hardship to the
petitioners in view of the rejection of the NOC by the respondent no.2,
the petitioners can construct the building outside the shadow and/or
shields and within permissible heights. The petitioners did not
challenge the validity of the circular immediately. It is not the case of
the petitioners that the circular dated 18th May, 2011 does not apply.
(x) Learned Additional Solicitor General relied upon the following
judgments in support of the aforesaid submissions :-
(i) The judgment of this Court in case of The Union of
India vs. State of Maharashtra & Ors., (2016) 4 Bom C.R.
549;
(ii) The judgment of this Court in case of M/s.Sunbeam
Enterprises vs. The Municipal Corporation of Greater
Mumbai & Ors., in Writ Petition No. 229 of 2018 dated 21st
June, 2019;
(iii) The judgment of this Court in case of Ravindra
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Mutneja & Ors. vs. Bhavan Corporation & Ors., in Appeal
From Order No. 281 of 2022 dated 27th February, 2003;
(iv) The judgment of this Court in case of TCI
Industries Limited vs. Municipal Corporation of Greater
Bombay, 2011 SCC OnLine Bom 1671;
(v) The judgment of this Court in case of Hindustan
Petroleum Corporation Ltd. vs. Municipal Corporation of
Greater Mumbai, 2012 SCC OnLine Bom 560;
(vi) The judgment of Supreme Court in case of Oswal
Agro Mills Limited vs. Hindustan Petroleum Corporation
Limited & Ors., (2014) 2 SCC 491;
(vii) The judgment of this Court in case of Akbar Travel
of India (Pvt) Ltd. vs. Union of India & Ors., in Writ
Petition No. 656 of 2009 dated 10th June, 2009;
(viii) The judgment of this Court in case of Narangs
International Hotels Private Limited & Anr. vs. Union of
India & Ors. in Writ Petition (L) No. 1105 of 2011 dated
17th June, 2011;
(ix) The judgment of Supreme Court in case of
S.P.Chengalvaraya Naidu (Dead) by LRS. vs. Jagannath
(Dead) By LRs. & Ors., (1994) 1 SCC 1;
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(x) The judgment of Supreme Court in case of Dalip
Singh vs. State of Uttar Pradesh & Ors., (2010) 2 SCC
114;
(xi) The judgment of Supreme Court in case of
Supertech Limited vs. Emerald Court Owner Resident
Welfare Association & Ors. with connected matters, 2021
SCC OnLine SC 648;
(xii) The judgment of Calcutta High Court in case of
SKG Pulp & Paper Mills Pvt. Ltd. & Anr. vs. Assistant
Provident Fund Commissioner (Compliance) & Ors., 2021
SCC OnLine Cal 436;
(xiii) The judgment of this Court in case of Procter and
Gamble India Ltd. & Anr. vs. Endolabs Limited & Ors.,
(2000) 3 Bom CR 136;
(xiv) The judgment of Supreme Court in case of Bharat
Singh & Ors. vs. State of Haryana & Ors. with connected
matters, (1988) 4 SCC 534;
(xv) The judgment of this Court in case of
S.S.V.Developers & Ors. vs. Union of India & Ors., (2014)
2 Bom CR 541;
(xvi) The judgment of this Court in case of Provincial
Housings & Property Ltd. vs. Union of India & Ors.,
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(2016) 6 Bom CR 393;
(y) Learned Additional Solicitor General also submitted a note to
distinguish the judgments relied upon by the petitioners.
19. Mr.Sakhare, learned senior counsel for the Municipal
Corporation submitted that the Corporation would leave to the
discretion of the Court for passing appropriate order. He submitted that
the alternate proposal submitted by the petitioners during the pendency
of this petition has been approved by the Corporation subject to the
NOC of Defence.
20. Mr.Godbole, learned counsel for the petitioners submitted that
after 2011, the Central Government issued only guidelines and not the
notification as and by way of pro tem arrangements. He submitted that
each and every judgment relied upon by the learned Additional
Solicitor General is distinguishable on facts. He submitted that the
petitioners have alleged malafide in paragraph (37) of the writ petition.
The respondent no.2 has granted NOC in respect of the another
building similarly situated after rejection of NOC applied by the
petitioners. He tendered a note distinguishing the judgments relied
upon by the learned Additional Solicitor General.
21. Learned counsel relied upon the judgments of Supreme Court in
case of Satwartna Co-op Housing Society Ltd. & Anr. vs. Bharat
Petroleum Corporation Ltd. & Ors. in Civil Appeal No. 3185 of 2022
dated 26th April, 2022 and also judgment of Supreme Court delivered
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on 8th July, 2022 in case of The Commandant, Ordance Depot vs. The
Kolkata Municipal Corporation & Ors., in W.P.A.NO. 13756 of 2021.
He submitted that the judgment of this Court in case of Bharat
Petroleum Corporation Ltd. vs. Municipal Corporation of Greater
Mumbai & Ors. in Writ Petition No. 1515 of 2017 has been reversed
by the Supreme Court in case of Satwartna Co-op Housing Society
Ltd. & Anr. (supra).
22. It is submitted that the petitioners have demonstrated as to how
the building of the petitioners was covered by the shadow and shield by
four buildings. In view of the stand taken by the respondents, the
petitioners had agreed to close the vision and to make it a part of the
RCC structure. The petitioners did not have terrace. The Municipal
Corporation has considered the proposal of the petitioners and
approved the subject to the NOC of the Defence. There is a vision also
from the other adjoining buildings which is totally ignored by the
respondent no.2 while rejecting the NOC in favour of the petitioners.
He submitted that transitory provisions cannot be for indefinite period.
23. Mr.Singh, learned Additional Solicitor General distinguished the
judgment of Supreme Court in case of Satwartna Co-op Housing
Society Ltd. & Anr. (supra) on the ground that in this case, the Defence
has taken a decision not to grant NOC. He submitted that this Court
while exercising the powers under Article 226 of the Constitution of
India does not sit in appeal over the decision of the respondent no.2
refusing to grant NOC on the ground of security issue. He submitted
that no violation of Article 300A has been committed by the
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29
respondents by refusing to grant NOC since the construction as
proposed by the petitioners is not permissible in law. He submitted that
no particulars of the malafides are given by the petitioners in writ
petition. The Court has to see whether there is any illegality committed
by the respondents in decision making process and not in the decision.
He relied upon the judgment in case of The Union of India Vs. State of
Maharashtra & Ors., 2016 SCC OnLine Bom 2570.
24. Insofar as the revised plan submitted by the petitioners is
concerned, it is submitted by the learned Additional Solicitor General
that the liberty was granted to the petitioners in view of the statement
made by the petitioners and without prejudice to the rights and
contentions of both the parties. The permission granted by the
Municipal Corporation on the said revised plan is not binding on the
defence. The security aspect has to be considered by the Defence.
This Court has clarified the order granting such permission to the
petitioners on 8th December, 2021 that the said decision of the
Municipal Corporation was subject to the NOC of the Defence, if
required.
REASONS AND CONCLUSIONS:
25. We shall first decide the issue as to whether the Guidelines
dated 18/05/2011 or subsequent Guidelines issued by the Central
Government have any force of statute or had no binding force and
thus the Planning Authority could not have insisted on an NOC
from the Defence Authorities before carrying out any construction
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30
in the near vicinity.
26. In our view, this Court will have to first find out whether
there are any powers under the provisions of the MRTP Act or
Development Control Regulations to issue such Guidelines or not.
27. The aforesaid issue raised by the petitioners has been dealt
with by a Division Bench of this Court at length in case of TCI
Industries Limited (supra). This Court held that under Section
46 of the MRTP Act, the Planning Authority is required to
examine the aspect of granting development permission in an
appropriate manner and by considering the relevant aspects. While
granting development permission, one of the things which the
Planning Authority is required to consider is to the provisions of
the draft or final plan sanctioned under the Act meaning thereby
that if any provision in respect of anything in the draft or final
plan published by means of notice or same is sanctioned under the
Act, the Planning Authority cannot ignore the same and it has to
be taken into consideration.
28. This Court held in the said judgment that it is impossible to
accept the say of the petitioner therein that the Planning Authority
cannot consider any other thing except giving due regard to the
provisions of the draft or final plan as mentioned in Section 46 of
the MRTP Act. Section 46 of the MRTP Act cannot be given such
WP-3543.2018 (j).doc
31
a restricted meaning and it cannot be said that under Section 46,
the Planning Authority cannot consider any other aspect such as
security etc.
29. After rejecting the identical submission made by the
petitioners in that case, this Court held that it is the inherent duty
of the planning authority to apply its mind before giving
development permission and has to keep in mind the pros and
cons of such development permission. This Court gave an
example in paragraph 18 of the said judgment that if there is a
fire brigade station or refinery or any sensitive object located at
the place nearby the area for which development permission is
sought, the planning authority cannot shut its eyes and blindly
give sanction only on the basis that, except what is provided in
Section 46, they are not required to call for any other information.
Per contra, it is the duty of the planning authority to call for such
information otherwise they will be failing in their duty. This
Court rejected the contention of the petitioners that the planning
authority is not empowered to call for any other information and
to straightaway grant permission and is not required to call for any
other information except the one provided under Section 46 of the
MRTP Act or under the D.C. Regulations.
30. This Court in the said judgment thereafter held that no fault
can be found with the Corporation in insisting for NOC from the
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32
Defence Department. This Court considered the D.C. Regulation
16 (n) and held that the Planning Authority may refuse to grant
permission for using the land if the proposed development is likely
to involve damage or to have a deleterious impact on or is against
the aesthetics or environment or ecology and/or
historical/architectural/aesthetical building and precincts or is not
in the public interest. This Court held that public interest has wide
connotation and if any particular development activity is found to
be not in public interest, in a given case, the development
authority can refuse such permission. The public interest has to be
read independently to the earlier part of the said Regulation i.e.
ecology, architectural aspects etc.
31. This Court held that insistence on the part of the planning
authority for NOC from a particular department cannot be said to
be de hors the provisions of the Act and the Regulations. In our
view, the provisions of Section 46 of the MRTP Act has to be
read with Regulation 16(n) of the D.C. Regulations and not in
isolation. The submission of the learned senior counsel for the
petitioners that the impugned notices are beyond the powers or the
jurisdiction of the respondents or contrary to the provisions of
Section 46 of the MRTP Act is ex facie illegal and contrary to the
Section 46 of the MRTP Act read with Regulation 16(n) of the
D.C. Regulations and is accordingly rejected. It is also contrary
to the principles of law laid down by the Supreme Court in case of
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TCI Industries Limited (supra).
32. We shall now decide the submissions made by learned
counsel for the petitioners whether the writ property constructed
by the petitioners was "in line with or behind" or "by the shadow
or shield" of any existing structures within 500 meters and thus
NOC of the Defence Authority was not required.
33. It is also the case of the petitioners that the Naval Depot is
surrounded on all four sides by high rise buildings higher than the
petitioners' building. The petitioners have also placed reliance on
the Google Map in the affidavit in rejoinder along with
photographs.
34. Learned counsel for the petitioners could not dispute that the
plot of the petitioners is a curved plot. The construction of the
petitioners is coming up at a distance of 375 meters from the
North-East side of the Material Organization, Mumbai. There is
no dispute that the NOC has been granted to the construction
proposed on CTS No.244 to 247 on or about 25/05/2016.
35. The respondents upon a detailed analysis and the site visit
found that the construction carried out by the petitioners will have
a direct line of sight to core Depot at Material Organization,
Mumbai. The construction of the petitioners partially falls in the
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34
shadow/shield of four buildings viz. Mukund Society, Neelkanth
Dhara, Police Staff Building and New Taj Apartment. However, it
is not entirely in the shadow/shield of any building. The proposed
construction is partially in the shadow/shield not on the basis of
height, but on the basis of width.
36. Mr. Anil Singh, learned Additional Solicitor General made a
statement that the petitioners can construct building with
shadow/shield and within permissible height. The petitioners,
however, did not challenge the validity of the circular dated
18/05/2011 immediately.
37. We are inclined to accept the submission of learned
Additional Solicitor General that even if the proposed height is
reduced from 32.55 meters to 28.65 meters at par with New Taj
Apartment, it would not be correct for the petitioners to canvass
that the structure of the petitioners would be in the shadow or
shield of said New Taj Apartment. Rather, the factum of whether
or not the proposed construction is within the shadow and/or
shield of an existing building would be within the domain of the
Navy. This Court cannot record any factual finding on this aspect.
The Navy being an expert in the field of safety and security and to
find out and assess the national security threat has come to the
conclusion that the proposed construction is not within the
shadow/shield of an existing building. The finding of conclusion
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35
drawn by the Navy Establishment cannot be interfered with by this
Court.
38. It is the case of the petitioners that there is no threat
perception on the ground and that in case of few buildings referred
to in paragraph No.10 of this order, NOCs were already granted by
the Municipal Corporation and/or the Naval Authorities in the
Ghatkopar area, which had direct line of sight to the Naval Depot
at Ghatkopar. It is also the case of the petitioners that the Naval
Depot is surrounded on all four sides by high rise buildings higher
than the petitioners' building. In our view, Mr. Singh, learned
Additional Solicitor General appearing for Union of India is right
in his submission that before granting any NOC by any Local
Military Authority, a detailed exercise is undertaken in each case
based on independent factors. Each construction or each proposal
for NOC is viewed independently and separately. The individual
factors are duly considered before granting or refusing an NOC.
Local Military Authority conducts a physical investigation, which
involves not merely an inspection of the proposed site of
construction, but an investigation / inspection of the entire
neighbourhood.
39. Learned Additional Solicitor General rightly pointed out that
the entire procedure has been followed by the authorities before
considering whether NOC shall be granted or not to any party for
WP-3543.2018 (j).doc
36
carrying out development in the nearby vicinity, which may affect
the security aspect. He rightly pointed out that a detailed
assessment/analysis report is prepared by the Local Military
Authority, such report is then placed for further consideration
before the Headquarters, Western Naval Command, which not
only deliberates upon the same but if it deems fit or necessary,
may even conduct a physical inspection itself to ascertain the
factual position. It is only after the detailed analysis that the
Authority evaluates the interest of national security vis-à-vis the
Defence Establishment with respect to grant of NOC.
40. We are inclined to accept the submission of learned
Additional Solicitor General that only after carrying out a detailed
investigation, so as to ascertain, whether permission if any,
granted for construction would affect the national security or not,
the Local Military Authority insisted for NOC to be obtained by
the petitioners before carrying out any construction.
41. In our view, learned Additional Solicitor General is right in
his submission that merely because one building, which was of the
height of 10 floors had been granted NOC, another building of 10
floors would automatically be entitled to an NOC is not correct. It
would not be appropriate to state that merely because four
proposed constructions had been granted NOCs, the petitioners are
entitled for such an NOC automatically. The respondents have to
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37
consider various critical factors on every proposal separately,
which may differ between the two constructions, which may
otherwise appear similar. We are inclined to accept the
submission of learned Additional Solicitor General that all factors
are required to be taken into consideration before issuance of grant
or rejection of NOC, which would affect national security if such
NOC is granted.
42. The respondents have stated to have insisted for NOC also
on the ground that several acts breaching the security and safety
measures were considered necessary in the wake of such incidents
both within India and internationally. The security aspect has to
be considered as per the status as on date, of considering the
application for NOC and not based on the premise that in the past
few other buildings in the nearby vicinity were granted
permissions. We accept the statement made by learned Additional
Solicitor General that respondent No.6 is in the process of
revoking the grant of NOC to the construction proposed on CTS
Nos.244 to 247.
43. Admittedly, the petitioners did not apply for any permission
from the Local Military Authority before commencement of the
construction and without any such permission, commenced
construction.
WP-3543.2018 (j).doc
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44. Learned counsel for the petitioners did not dispute that the
old building was comprising of 4 wings i.e. Wing 'A' comprised of
ground + 3 floors configuration, Wing 'B' comprised of ground +
4 floors configuration, Wing 'C' comprised of ground + 2 floors
configuration + part terrace and Wing 'D' comprised of stilt + four
floors configuration, were demolished by the petitioners and
petitioner No.2 proposed to construct a single building of four
wings in the proposed configuration of basement + stilt + 1 to 9
upper floors configuration. The petitioners were thus required to
obtain NOC from the Defence Authority, having proposed to carry
out construction beyond a particular height prescribed in the
Guidelines/Circulars issued by the Central Government.
45. Mr. Godbole, learned counsel for the petitioners could not
dispute that when the petitioners were issued Letter of Intent in the
year 2014 or thereafter, the provisions of MRTP Act and
Development Control Regulations were in force and were
applicable. The petitioners cannot be allowed to take advantage of
its own wrong.
46. Insofar as the new proposal submitted by the petitioners for
consideration of the respondents is concerned, it is the case of the
respondents that the said new proposal was also analyzed by the
respondents and after detailed analysis, it was found that the said
new proposal also could not be considered due to safety and
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39
security threat persisted even at that time.
47. The petitioners heavily placed reliance on the sanction
granted by the Municipal Corporation to the new proposal
submitted by the petitioners. The said new proposal was allowed
to be submitted during the pendency of this petition without
prejudice to the rights and contentions of the parties. The reliance
thus cannot be placed on the said sanction granted by the
Municipal Corporation. Learned counsel for the petitioners could
not dispute that the proposed construction is within the vicinity of
the Defence Establishment.
48. We are inclined to accept the submission made by learned
Additional Solicitor General that the restrictions imposed for
carrying out construction of the building of the petitioners are
based on some intelligence report/record. The public interest has
to be given importance as against the private interest and, thus, in
case of any conflict between the public interest and private
interest, the public interest would prevail.
49. Learned Additional Solicitor General is right in his
submission that the respondents have to conduct measures, while
considering the application for NOC keeping in mind the
precautionary measures that have to be taken while considering
the proposal for carrying out construction. The allegations of
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mala fides made by the petitioners in paragraph No.37 of the
petition are totally vague and without particulars. The allegations
of mala fides have to be specific and have to be established.
50. Learned Additional Solicitor General vehemently urged that
the respondents could not consider the proposal of the petitioners
to close the vision and to make it a part of the RCC structure to
obviate any security threat. We are inclined to accept the
submission made by learned Additional Solicitor General that
closing of such vision would still persist the security threat and
could not have been accepted as a permanent solution.
51. Be that as it may, the Defence Authorities are the experts to
assess the national security threat and not the petitioners or this
Court. The Defence Authorities are the experts in this field and
once having formed such opinion based on material before it and
intelligence report, the same cannot be substituted by another
opinion by this Court by acting as an expert on the security aspect.
52. The suggestion of the petitioners to install Vision Cutters of
Aluminium Composite Panels is rejected by the respondents on
the ground that it may corrode. Similarly, as the permanent RCC
Louvers Vision Cutters proposed by the petitioners are concerned,
the Municipal Corporation rightly rejected the said proposal on the
ground that the RCC Vision Cutters can also be removed. This
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Court cannot interfere with the security aspect considered by the
respondents and having apprehended such security threats and on
that basis rejection of the NOC, cannot be interfered by this Court
by exercising discretionary power under Article 226 of the
Constitution of India.
53. Insofar as the submission of learned counsel for the
petitioners that the Developers have spent more than Rs.12.58
crores on payment of transit accommodation, including corpus and
Rs.44.14 crores for construction as of March, 2022 is concerned,
in our view, if the petitioners would have obtained permission of
the Defence Authorities before carrying out construction or at the
time of making application for sanction of the plan for
construction of two towers, the petitioners would not have spent
any such amount alleged to have spent on transit accommodation
or for construction of the building. We are not expressing any
view on the issue as to whether the petitioners should be entitled
to claim any compensation in view of the respondents not having
issued an NOC in favour of the petitioners.
54. In our view, the reliance placed by the petitioners, on the
text of the speech of the learned Minister allegedly stating that any
building, if existed upto 500 sq. meters, there was no problem in
granting permission, is misplaced.
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55. We are inclined to accept the submission of learned
Additional Solicitor General that the Material Organization,
Mumbai, situated at Ghatkopar, is a sensitive and vital unit of the
Indian Navy and, thus, the NOC was rightly refused by the
respondents in favour of the petitioners. The right to develop is
not an unconditional right, but is a right subjected to and
depending upon the satisfaction of the terms and conditions
contained in the letters of sanction, approval in that behalf and
also the planning laws. It was the duty of the Planning Authority
to insist for NOC of Defence Establishment, which was required
to be obtained by the petitioners at the time of sanctioning the plan
submitted by the petitioners.
56. Learned counsel for the petitioners could not distinguish the
judgment of this Court in the case of Sunbeam Enterprises
(supra), which considered and noted the importance and sensitive
nature of the Material Organization, Ghatkopar. The said Material
Organization, Ghatkopar also qualifies as a Naval Establishment
within the meaning of the term 'Naval Establishment' set out in
Section 3(12A) of the Navy Act, 1957.
57. This Court cannot direct the defence authorities to
compromise the safety and security of the nation. There is no
negative equality provided in Article 14 of the Constitution of
India. It is for the petitioners to show as to how this construction
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43
is permissible despite the security threats.
58. In our view, there is no substance in the submission of the
learned counsel for the petitioners that the circulars issued by
the Central Government are in the nature of executive instructions
or are in violation of Article 19(1)(g) or Article 19(6) of the
Constitution of India. The petitioners have placed reliance on
Articles 73 and 162 of the Constitution of India in support of the
submission that the circulars are in the nature of executive
instruction. In our view, the guidelines issued by the Central
Government are to guide the Defence establishment to deal with
the issue of NOC when approached by the Planning Authority.
There is no violation of fundamental rights of the petitioners.
59. The purpose and object is to strike the balance. Restriction
on construction activities is primarily part of the planning laws
i.e. MRTP Act and D.C. Regulation. The guidelines issued by
the Central Government are to restrict the construction activities
higher than 4th floor. A perusal of guidelines clearly indicates that
there is no complete bar on the construction. No fundamental
rights of the petitioners are thus violated. Be that as it may, the
fundamental rights claimed by the petitioners under Article 19(1)
(g) are subject to the restrictions under Article 19(6) of the
Constitution of India.
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60. In so far as the submission of the learned senior counsel for
the petitioners that the impugned action is also in violation of
Article 300A of the Constitution of India is concerned, this
aspect has been dealt with by this Court in case of TCI
Industries Limited (supra) and has held that simply because, the
construction activity is not permitted, it cannot be said that such
action is violative of Article 300A of the Constitution of India.
This Court held that under D.C. Regulation 16, no development
activity is permissible in certain eventuality which includes public
interest also. The validity of D.C. Regulation 16 has not been
challenged by the petitioners.
61. This Court accordingly held that the Corporation had acted
within its authority and it could not be said that the petitioner is
deprived of its property without any authority of law. This Court
also rejected the argument that the security aspect which was
pressed into service by Navy was a bogey or imaginary one, as
appropriate material has been placed on record to buttress the
stand of the Navy. There is thus no substance in this submission
made by the leaned senior counsel for the petitioners.
62. This Court in case of Hindustan Petroleum Corporation
Ltd. (HPCL) (supra) allowed a writ petition filed by HPCL
impugning the approval and permission granted by some of the
authorities in favour of the developers in the vicinity of the
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45
petitioner therein on the ground of security reason. This Court,
after adverting to various judgments of the Supreme Court and
this Court, held that even if the relaxation in respect of the
dimensions in case of hardship, can be granted by the Municipal
Commissioner, Municipal Commissioner is prohibited from
granting such relaxations if such relaxation affects health, safety,
fire safety, structural safety and public safety of the inhabitants of
the building and the neighbourhood.
63. This Court categorically rejected the submission made by
the developers that the security aspect should not have been
considered at all by the Municipal Commissioner while
sanctioning the plan for development or while permitting the
change of user under any of the provisions of the D.C. Regulations
or Mumbai Municipal Corporation Act or Maharashtra Regional
Town Planning Act. This Court held that it is not only the power
but also duty of the Municipal Commissioner to consider the
security aspect in public interest before granting permission to
develop any land as well as permitting change of user from one
zone to another zone. This Court considered the Regulation 16(a),
(e), (n) read with Regulation 64(b) read with section 46 of the
M.R.T.P. Act while rejecting the submission of the developers that
there was no enabling provision under the present D.C.
Regulations or any other provisions to consider security and health
aspect before sanctioning the plan or before permitting change of
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user by the Municipal Commissioner.
64. This Court after adverting to the judgment in case of TCI
Industries Limited (supra) held that the security and health
aspect in respect of public at large is a part of planning which the
authorities ought to have considered as a mandatory duty before
sanctioning any plan or permitting development or before
permitting change of user. It is held that security as well as health
aspects are crucial and are of equal concern and are of
fundamental necessity that the Planning Authorities, the
Government and the Public bodies, who are entrusted with the
task of deciding on the location of residential areas, must be alive
to these very real and basic necessities at all times. The Court
cannot permit any compromise or leniency on these issues by
public body or even individuals. This Court also rejected the
arguments in that matter that the action on the part of the
petitioner therein was in violation of Article 300A of the
Constitution of India.
65. The Supreme Court has rejected the Special Leave Petition
(SLP) converted into civil appeal arising out of the said judgment
of this Court in case of Hindustan Petroleum Corporation Ltd.
(supra). The Supreme Court in case of Oswal Agro Mills
Limited (supra), after considering the provisions of Regulations
16 (a), (e) and (n) and various other provisions, held that this
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power is coupled with the duty to give paramount importance to
safety. In our view, the submissions advanced by the learned
senior counsel for the petitioners are contrary to the principles of
law laid down by the Supreme Court in case of Oswal Agro Mills
Limited (supra).
66. Division bench of this Court in case of S.S.V. Developers
and Ors. (supra) has followed the principles of law laid down by
this Court in case of TCI Industries Limited (supra). This
Court rejected the submission of the petitioner therein that the
guidelines issued by the Government of India, Ministry of
Defence dated 18th May 2011 for issuance of NOC for building
construction are arbitrary and did not provide for any safeguard.
This Court held that those guidelines were issued because the
authorities found that the said WODA which imposes restrictions
upon use and enjoyment of the land in the vicinity of defence
establishment needs to be comprehensively amended so as to take
care of security concerns of defence forces. The process of
amendment has been put in motion and may take some time. This
Court held that the objective of these instructions is to strike a
balance, between the security concerns of the defence forces and
the right of public to undertake construction activities on their
land. The principles of law laid down by this Court in the said
judgment apply to the facts of this case.
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67. In our view, the reliance placed by the petitioners on the
judgments of the Supreme Court in case of F.B. Taraporawala
and Ors. Vs. Bayer India Ltd. & Ors. (supra), in case of B.K.
Ravichandra & Ors. Vs. Union of India & Ors. (supra) and in
case of Canara Bank Vs. N.G. Subbaraya Setty & Anr. (supra)
in so far as the submission of the petitioners that the impugned
notice violates Article 300A of the Constitution of India has no
merit. There is no dispute about the proposition of law laid down
by the Supreme Court in the above referred three judgments.
However, since there is no violation of the Article 300A of the
Constitution of India, those judgments would not assist the case
of the petitioners.
68. This Court in case of Union of India Vs. State of
Maharashtra and Ors. (Adarsh Co-operative Housing Society
Ltd. case) (supra) had considered the submissions of both the
parties including the submission of the Union of India that
Adarsh building poses a serious threat to the security of the
Colaba Military Station. This Court held that section 46 of the
MRTP Act indicates that while considering the application for
permission, the planning authority shall have due regard to the
provisions of any draft or final plan or proposals published by
means of notice submitted or sanctioned under the said Act.
69. This Court held that NOC of Defence Establishment is
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necessary and in fact it is a mandatory duty of the planning
Authority to insist for NOC of Defence Establishment while
considering proposal for building permissions. This Court after
adverting to the judgments of this Court in case of TCI Industries
Limited (supra), in case of S.S.V. Developers and Ors. (supra), in
case of Hindustan Petroleum Corporation Ltd. (HPCL) (supra)
and also the decision of the Supreme Court in case of Oswal Agro
Mills Limited (supra) held that it is a mandatory duty of the
planning Authority to insist for NOC of Defence Establishment.
This Court held that simply because no declaration under Section
3 of the Act is issued, it cannot be said that the defence
establishment was not entitled to insist for their NOC. This Court
further held that the provisions of WODA are not the sole
repository for prohibiting construction activities near Defence
Establishment and the Central Government can certainly invoke
Section 46 and Regulation 16 of the D.C. Regulations.
70. In the said judgment, this Court also considered the
argument that there are several high-rise buildings in the near
vicinity which are totally overlooking into the MG & G Area and
Army and Navy area in Colaba and held that sensitive and vital
installations have to be safeguarded and protected from entry of
persons who are considered to be undesirable and a security risk.
The writ court does not possess any expertise in such cases. The
Court cannot indulge in guess work and hold that the security
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concern expressed by the petitioner is not bonafide.
71. This Court held that in that case, security of CMS was
involved and thus this Court was not prepared to accept that for
any extraneous reason the present petition is instituted. This Court
also observed the fact that the nature of threat to the security of
nation has undergone a vast change over the last decade with
terrorism emerging as a source of major and unconventional
danger need not be over emphasized. The assessment of such
threats has heightened and the precautionary measures taken
against them are expanded. This Court also considered that in the
year 2007, blast in local train in Mumbai occurred. On 26.11.2008
a terror attack occurred in Mumbai. Times have changed. People
have changed. Technology has advanced. New techniques are
employed. Increase of terrorism is an accepted international
phenomenon.
72. This Court has also held in the said judgment that when
national interest is pitted against private interest, naturally national
interest must be protected as against the private interest. Technical
objections of delay and laches will not come in the way of the
court in exercising its extra ordinary jurisdiction under Article 226
which is undoubtedly equitable jurisdiction and the Court will
grant relief for protecting national as well as public interest. This
Court accordingly held that petition could not be dismissed on the
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ground of gross delay and laches. The principles of law laid down
by the Supreme Court in case of Union of India Vs. State of
Maharashtra and Ors. (Adarsh Co-operative Housing Society
Ltd. case) (supra) are applicable to the facts of this case.
73. This Court in case of M/s.Sunbeam Enterprises (supra)
considered the arguments similar to the arguments raised by the
petitioners in this case. This Court also considered the guidelines
issued by the Central Government and held that in principle, this
Circular contemplates that 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 the 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
the State Government agencies or to Municipal Authorities.
74. It is held that the Station Commander may refer the matter
immediately to its next higher authority in the chain of its
command. Then the Station Commander may convey its objection/
views to the local municipality or State Government agencies.
This Court considered the clarificatory Circulars dated 18th
March, 2015 and 21st October, 2016 and also Regulation 16(e)
and 16 (n) of the D.C. Regulations in the said judgment and held
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that the security aspect is a fundamental necessity and that the
Planning Authority and the public bodies who are entrusted with
the task of deciding on the location of residential areas, must be
alive to at all times. The Court cannot permit any compromise or
leniency on these issues, especially with reference to security by
any of the public bodies or even individuals. It is held that taking
into consideration the aspect of security of our Naval
Establishments and that of the public is a mandatory duty of the
MCGM (the Planning Authority) before sanctioning any plan or
permitting any development. The Municipal Corporation has to
apply its mind before giving development permission and to keep
in mind the pros and cons of granting such permission.
75. We are of the view that this Court cannot lose sight of the
fact that indeed the time has changed. Terrorism is on the rise and
the State is no longer fighting a known enemy. The nature of
threat to the security of nation has undergone a vast change over
the last decade with terrorism emerging as a source of major and
unconventional danger. The assessment of such threats has
heightened and accordingly the necessary precautionary measures
have to be taken against them.
76. This Court in case of Narangs International Hotels Private
Limited (supra) has held that the examination of security threat is
an ongoing process. It is held that whether there is any real,
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apparent and imminent danger emanating from the report can be
decided by the Intelligence Bureau. Threat perception falls in the
domain of Intelligence Bureau. The Court is unable to draw any
conclusions in that behalf.
77. Insofar as the submission of the petitioners that the flat
purchasers are affected because of NOC not having been granted
by the respondents is concerned, this aspect has been considered
by this Court in Adarsh Society (supra) and has been rejected.
The petitioners are solely responsible for this situation and not the
respondents.
78. The Supreme Court in case of Rai Sahib Jawaya Kapur &
Ors. (supra) has held that a perusal of Article 154 of the
Constitution of India indicates that it does not follow, that in order
to enable the executive to function, there must be a law already in
existence and that the powers of executive are limited merely to
the carrying out of these laws.
79. The Supreme Court in case of M/s.Kasturi Lal Lakshmi
Reddy (supra) has held that one basic principle which must guide
the Court in arriving at its determination is that there is always a
presumption that the Government action is reasonable and in
public interest and it is for the party challenging its validity to
show that it lacks in reasonableness or is not in conformity with
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public interest. This burden is a heavy one and it has to be
discharged to the satisfaction of the Court by proper and
adequate material. We are inclined to accept the submission made
by Mr.Naphade, learned counsel for the respondent no.6 that
though the respondent no.3 had raised an objection when the
building was constructed upto 7th floor, the Municipal
Corporation had issued stop work notice when the building was
constructed upto 19th floor was constructed.
80. Insofar as the judgment of the Supreme Court in case of
Satwaratna Co.op Housing Society Ltd. & Anr. Vs. BPCL
(supra) relied upon by the learned senior counsel for the
petitioners in support of the submissions that the judgment of this
Court in case of BPCL Vs. Municipal Corporation of Greater
Mumbai delivered on 25th April 2019 is reversed by the Supreme
Court is concerned, a perusal of the said judgment of the Supreme
Court in case of Satwaratna Co.op Housing Society Ltd. & Anr.
Vs. BPCL (supra) indicates that the earlier judgment of the
Supreme Court has not been brought to the notice of the Supreme
Court on the similar issue. Be that as it may, the facts before the
Supreme Court in the said judgment are different from the facts
before this case.
81. The Supreme Court in case of Satwaratna Co.op Housing
Society Ltd. & Anr. Vs. BPCL (supra) has held that when acting
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under Article 226 of the Constitution of India, High Court does
not act as a Court of Appeal and hence would not be entitled to
interfere with exercise of discretion by an Officer except in cases
of violation of a law, rule or regulations. In this case, higher
authority of Defence Establishment after considering the security
aspect perceived by it had insisted for NOC. The NOC from
Defence Establishment was mandatory before carrying out any
construction in the nearby vicinity within the close proximity. In
our view, the said judgment would support the case of the
respondents and not the petitioners. The Defence Establishment
having considered the security aspect being an expert, this Court
cannot interfere with the decision of the said expert while
exercising powers under Article 226 of the Constitution of India.
The guidelines dated 18th May 2011 read with amendment were
not considered in that case.
82. The said judgment does not deal with interpretation of
MRTP Act and D.C. Regulation with reference to the safety and
security of Defence Establishment which has been considered in
large number of judgments delivered prior to the judgment in case
of HPCL (supra). The Supreme Court in the said judgment was
considering an issue as to whether a buffer zone could be created
around a refinery. There is no such issue in this case. In our
view, the writ petition is devoid of merit.
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83. Insofar as the judgment of Calcutta High Court in the case of
The Commandant, Ordinance Depot (supra) relied upon by Mr.
Godbole, learned counsel for the petitioner is concerned, the facts
before the Calcutta High Court were totally different. Various
judgments of this Court and the Supreme Court relied upon by
learned Additional Solicitor General in this matter were not cited
before the Calcutta High Court. The provisions of the Calcutta
Municipal Corporation Act and Calcutta Municipal Corporation
Building Rules pressed into service by the parties were totally
different. The said judgment is clearly distinguishable on facts
and it does not advance the case of the petitioners.
84. Insofar as the judgment of this Court in the case of Sea
Kunal Corporation Pvt. Ltd. (supra) relied upon by Mr. Godbole,
learned counsel for the petitioners is concerned, a perusal of the
said judgment indicates that the said judgment does not deal with
the circular dated 18/03/2015. In this case, the Navy has
specifically asserted that the proposed construction is not entirely
within the shadow and/or shield of any existing building and,
hence, is not entitled to seek any benefit of the said Circular dated
17/11/2015. The said judgment of this Court in the case of Sea
Kunal Corporation Pvt. Ltd. (supra) has been distinguished by
this Court in the case of Sun Beam Enterprises (supra).
85. Insofar as the judgment of this Court in Tirandaz Subha
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Niketan Co-operative Housing Society Limited (supra) is
concerned, this Court in the said judgment has held that the Naval
Housing Colony was not a sensitive Defence Establishment. The
petitioners have not disputed that the Material Organization,
Ghatkopar is a sensitive Defence Establishment. The said
judgment of this Court is thus clearly distinguishable on facts.
86. Insofar as the judgment in the case of Runwal
Constructions (supra) relied upon by Mr. Godbole, learned
counsel for the petitioners is concerned, the construction of the
petitioners therein was at a distance of approximately 500 meters
from the Helipad. There were two notifications under WODA,
which imposed restrictions upto a distance of 100 mtrs. This
Court in the facts of that case observed that the reliance on
Guidelines by the respondents was not justified in view of the fact
that there was already a notification under WODA.
87. In the present case, there is no notification under WODA. In
a catena of decisions by this Court, it is already held that the
notification under WODA is not the only source for issuing such
directives in public interest. This Court also after considering the
provisions of Section 46 of the MRTP Act and various provisions
of the Development Control Regulations, which are applicable,
had held that under those provisions, the Planning Authority could
not have sanctioned the plan in absence of any NOC having been
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granted by the Defence Establishment.
88. Insofar as the judgment of the Rajasthan High Court in the
case of S.R. Land Square Pvt. Ltd. (supra), relied upon by Mr.
Godbole, learned counsel for the petitioners is concerned, the said
judgment would not apply to the facts of this case. The facts
considered by the Rajasthan High Court were totally different. In
this case, the Navy has specifically found that the proposed
construction would have a direct line of sight to the core depot at
Material Organization, Ghatkopar and thus grant of NOC would
be contrary to the Guidelines on national security thereat and
would not be feasible.
89. Insofar as the judgment of the Delhi High Court in the case
of GNCT of Delhi (supra) is concerned, in the said judgment, the
Delhi High Court considered the case of Military Establishment.
The said judgment was not dealing with a Naval Establishment.
The Guidelines dated 21/10/2016 applies and enlists only army
units. This Court has already held in Sun Beam Enterprises
(supra) that the Guidelines dated 21/10/2016 would not apply to
Naval Establishments.
90. Insofar as the judgment of the Kerala High Court in M.P.
Hussain Kuhi (supra) relied upon by Mr. Godbole, learned
counsel for the petitioners is concerned, in the said judgment the
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Kerala High Court dealt with a Military Establishment and not of
Navy Establishment. This judgment is also distinguishable on the
same ground on which the judgment of the Delhi High Court in
GNCT of Delhi (supra) is distinguished.
91. Insofar as the judgment of Kerala High Court in
Fathimathul Raseena (supra) relied upon by Mr. Godbole,
learned counsel for the petitioners is concerned, in that matter, the
defence had clarified before the High Court that on a subsequent
assessment of the security requirements, the construction activities
of the petitioner therein were found to be not objectionable. The
said judgment was based on the concession made by the Defence
Authorities as is obvious on a plain reading of the said judgment.
The said judgment is thus clearly distinguishable on facts.
92. During the course of the argument, at the fag end, learned
Additional Solicitor General tendered a sealed envelope stating
that the said confidential report can be perused by this Court
relating to security aspect in the present matter. Mr. Godbole,
learned counsel for the petitioners fairly stated that such report can
be perused by this Court if it deems fit.
93. We have accordingly perused the said confidential report,
which indicates that if any such construction is permitted, it will
have serious security threat to the Material Organization,
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Ghatkopar, considering the nature of activities being carried on in
the said Depot.
94. For the reasons recorded aforesaid, we are of the view that
there is no infirmity in the action on the part of the respondents in
refusing the NOC in favour of the petitioners to carry out the
proposed construction.
95. The powers of the writ court under Article 226 of the
Constitution of India are limited to interfere with such decisions
taken by the experts, who have to take a decision whether a
particular NOC would be in public interest or would pose any
national security threat or not.
96. We accordingly pass the following order:-
ORDER
(i) Writ petition is dismissed. Rule is discharged. Interim application pending, if any, stands disposed off.
(ii) This Court has not expressed any views on the issue whether the petitioners would be entitled to seek any compensation from the respondents for the loss, if any, suffered by the petitioners in view WP-3543.2018 (j).doc 61 of the notices issued by the respondents. The said issue is kept open.
(iii) No order as to costs.
(KAMAL KHATA, J.) (R.D. DHANUKA ,J)