Gauhati High Court
Dr. N Sahewalla And Company Pvt Ltd vs The Union Of India And 4 Ors on 4 August, 2022
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/10
GAHC010121112022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4153/2022
DR. N SAHEWALLA AND COMPANY PVT LTD
A COMPANY REGISTERED UNDER THE COMPANIES ACT AND HAVING ITS
REGISTERED OFFICE AT BORDOLOI AVENUE, AMC ROAD, DIBRUGARH
(ASSAM) IS REPRESENTED BY SRI KAMAL JAIN, S/O LATE TR JALAN, R/O
SEUNI ALI, P.O. AND P.S.-JORHAT (ASSAM)
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENSE,
GOVERNMENT OF INDIA, NEW DELHI, INDIA
2:JORHAT DEVELOPMENT AUTHORITY
JORHAT
REPRESENTED BY THE CHAIRMAN (IN CHARGE)
AT ROAD
MALOW ALI
JORHAT
ASSAM
PIN-785001
3:THE CHAIRMAN
JORHAT DEVELOPMENT AUTHORITY
AT ROAD
MALOW ALI
JORHAT
ASSAM
PIN-785001
4:STATION COMMANDER (BRIGADIER) JORHAT MILITARY STATION
STATION CELL
HQ 41 SUB AREA
Page No.# 2/10
PIN-908641
C/O 99 APO
5:OFFICIATING ADMINISTRATIVE COMMANDANT (COLONEL) JORHAT
MILITARY STATION
STATION CELL
HQ 41 SUB AREA
PIN-908641
C/O 99 AP
For the Petitioner : Mr. G.N. Sahewalla, Sr. Adv.
Mr. P.K. Deka, Adv.
For the Respondent: Mr. S.K. Medhi, CGC.
Mr. S.C. Keyal, Adv..
THE HON'BLE MR. JUSTICE SUMAN SHYAM
Date of hearing : 04/08/2022.
Date of judgement : 04/08/2022.
JUDGEMENT AND ORDER (ORAL)
1. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. P.K. Deka, learned counsel for the writ petitioner. Also heard Mr. S.K. Medhi, learned CGC, appearing on behalf of the respondent nos. 1, 2, 4 and 5 and Mr. S.C. Keyal, leaned counsel representing the respondent no. 3.
2. This writ petition has been filed being aggrieved by the order dated 08/06/2022 (Annexure-VII) whereby, the respondent no. 3 had kept in abeyance the building 'NOC' earlier issued in favour of the petitioner company for construction of a G+4 building.
3. The facts of the case, in a nutshell, may be noticed as follows:-
4. The writ petitioner herein is a company registered under the Companies Act, 1956. The petitioner company had purchased a plot of land measuring 8 Bighas 17 Lechas in Jorhat Town within the Jorhat Municipal Board area, which is situated contiguous to the land and building identified as 'Jorhat-Lichubari Army Camp". The petitioner company had applied for 'NOC' from the Jorhat Development Authority for construction of a multistoried building for Page No.# 3/10 setting up a multi-specialty hospital and on consideration of such application made by the petitioner, the respondent no. 3 had also granted 'NOC' vide building permission dated 04/03/2022. Thereafter, the petitioner had commenced construction work and a boundary wall was also constructed. The construction of the multistoried building, was for the purpose of running a super specialty hospital in the name and style "M/s. Aditya Diagnostic and Hospital". However, when the construction of the building was under progress, the respondent no. 5 had written a letter dated 06/06/2022 to the respondent no. 3 with a request to cancel the 'NOC' by stating that the request for issuance of 'NOC' made to it by the writ petitioner had been rejected. Acting on the basis of the letter dated 06/06/2022 issued by the Army Authorities, the impugned order dated 08/06/2022 has been issued by the respondent no. 3 suspending the 'NOC'.
5. By referring to the materials available on record, Mr. Sahewalla, learned senior counsel for the petitioner submits that the petitioner company is seeking to raise permanent construction over its own land. As per the guidelines issued by the Ministry of Defence on 18/05/2011, it was laid down that for any construction coming up within 100 meters of a defence installation/establishment and 500 mtrs. in case of building more than 4 stories, the 'NOC' from the Station Commander would be required as the same might pose security hazard to such defence installation. However, subsequently submits Mr. Sahewalla, the notification dated 18/05/2011 has been modified by the notification dated 21/10/2016 issued by the Government of India, Ministry of Defence, whereby, the radius of such restriction in construction has been reduced to 10 mtrs. from the outer wall of such defence installation/establishment.
6. By referring to the documents available on record, Mr. Sahewalla further submits that the construction of the multistoried building raised by the petitioner company is at-least 70 mtrs. away from the defence installation and, therefore, under the existing circular dated 21/10/2016, there was no necessity for the writ petitioner to obtain any NOC from the respondent nos. 4 and 5. Laying heavy emphasis on clause 2(a) of the notification dated 21/10/2016, Mr. Sahewalla submits that the impugned order dated 08/06/2022 is wholly arbitrary and illegal and hence, liable to be set-aside by the Court. It is also the submission of Mr. Sahewalla that the Air Force has already granted 'NOC' to the petitioner and therefore, there was no justifiable ground for the respondent nos. 4 and 5 to raise such objection, more Page No.# 4/10 so, since there are no windows in the building of the respondents towards the side of the construction raised by the writ petitioner.
7. The learned senior counsel for the petitioner has also submitted that the respondent nos. 4 and 5 had earlier approached the Court of learned Civil Judge, Senior Division at Jorhat by filing Title Suit No. 45/2022 along with Misc. (J) Case No. 24/2022 seeking an order of temporary injunction but they have not succeed in getting any such order from the Civil Court. As such, if the construction of the hospital building sought to be raised by the petitioner is suspended, then the same would not only cause serious injury to the interest of the petitioner company but would also stand to deprive the public of that area from the facilities of a super specialty hospital.
8. Mr. Sahewalla has also invited the attention of this Court to the decision of the High Court of Judicature at Delhi, rendered in the case of Union of India Vs. Gnct of Delhi and others [W.P.(C) 6901/2017], wherein a similar issue had arisen for consideration of the Court. He submits that taking note of the notifications issued by the Ministry of Defence in the year 2011 as well as the subsequent notification issued on 21/10/2016, the Delhi High Court has held that the 'NOC' from defence authorities would be required only if the construction is raised within the limit of 10 mtrs. from the outer wall of the defence establishment.
9. Mr. S.K. Medhi, learned CGC, on the other hand, has strongly opposed the prayer made in the writ petition by contending that not only the building but even the boundary wall constructed by the writ petitioner was within 10 mtrs. of the defence installation/establishment and therefore, the same could not have been constructed without the 'NOC' from the respondent nos. 4 and 5. It is also the submission of Mr. Medhi that the Ministry of Defence is reviewing/reconsidering the limits prescribed by the notification dated 21/10/2016 confining the same to 10 mtrs. from the outer wall of the defence installation. Under the circumstances, this Court may hold that the notification dated 18/05/2011 is still holding the field in which event the restriction of 100 meters restriction will be applicable in this case.
10. By relying upon an order passed by the Rajasthan High Court in D.B. Spl. Appl. Writ No. 744/2018 (Union of India Vs. M/s. S.R. Land Square Private Ltd. & Ors.), Mr. Medhi submits that in that case also by the order dated 01/04/2022 the Division Bench of Page No.# 5/10 the Rajasthan High Court had directed strict adherence to the guidelines dated 18/05/2011.
11. To sum up his argument, Mr. Medhi has submitted that the defence installations throughout the country and more particularly, in the North Eastern Region have serious security concerns and, therefore, instructions issued by the Ministry of Defence for maintenance of safe distance with regard to constructions carried out in the vicinity of such defence installation must be strictly adhered to as any deviation in respect thereof would pose serious security threats to the defence installations.
12. Mr. S.C. Keyal, learned counsel for the respondent no. 3 submits that the permission (NOC) granted to the writ petitioner on 04/02/2022 was subject to the condition that they would obtain NOC from the Military Authorities within six months which the writ petitioner has failed to comply with and, therefore, there is no illegality in the impugned order issued by the respondent no. 3. Mr. Keyal has produced the records for perusal of this Court.
13. I have considered the submissions advanced by the learned counsel for the parties and have also gone through the materials available on record.
14. As would be apparent from the facts narrated above, the core issue involved in this proceeding is pertaining to the question as to whether, under the relevant guidelines issued by the Ministry of Defence, Government of India, for maintaining distance while carrying out construction within the vicinity of any defence installation, 'NOC' from the respondent nos. 4 and 5 would be required for carrying out the construction undertaken by the petitioner company. As such, the relevant clauses in the two notifications issued on 18/05/2011 and 21/10/2016 would be of utmost importance in this case. Clauses b, c & d of the notification dated 18/05/2011 are pertinent in this case and, therefore, are reproduced herein below for ready reference :-
"(b) where the local municipal laws do not so require, yet the Station Commander feels that any construction coming up within 100 meter (for multistory building of more than four storeys the distance shall be 500 meters) radius of defence establishment can be a security hazard, it should refer the matter immediately to its next higher authority in the chain of its command. In case the next higher authority is also so convinced, then the Station Commander may convey its objection/views to the local municipality or State Government agencies. In case the municipal authority/State Government do not Page No.# 6/10 take cognizance of the said objection, then the matter may be taken up with higher authorities, if need be through AHQ/MoD.
(c) Objection/views/NOC shall not be given by any authority other than Station Commander to the local municipality of State Government agencies and shall not be given directly to private parties/builders under any circumstances.
(d) NOC once issued will not be withdrawn without the approval of the Service Hqrs."
15. It appears that the restrictions of minimum 100 meters of clear radius from a defence installation had generated resentment amongst the public, which had led to filing of a large number of representations by the aggrieved persons through their elected representations with a request to review/reconsider the said notification as otherwise, difficulties were being faced by the public in construction of buildings on their own land. Taking note of such representations filed on behalf of the public, the Ministry of Defence, Government of India, through the Deputy Director (Land), had issued the guidelines dated 21/10/2016, altering the requirement of clear distance to be maintained while making constructions around the 193 defence stations, the names of which were included in the annexures, viz. Part- A and B of the said notifications. The defence installations at Jorhat, represented by the respondent nos. 4 and 5, finds place at Sl. No. 42 of Part-A of the said notification.
16. As per clause 2(a) of the notification dated 21/10/2016, the 'NOC' from the concerned military authority will be required if construction is sought to be raised within a radius of 10 meters from the outer wall of such defence installations/establishment. Clause 2(a) is reproduced herein below for ready reference :-
"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 for effective surveillance. Any construction or repair activity within such restricted zone of 10 meters will required prior No Objection Certificate (NoC) from the Local Military Authority (LMA)/Defence establishments."
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17. Clause 2(b) of the notification dated 21/10/2016 relates to defence installation in Part-B with which we are not concerned. From a careful reading of the relevant clauses of the notification dated 21/10/2016, it is apparent that the said notification supersedes the earlier notification dated 18/05/2011 in so far as the requirement for maintaining clear distance while raising construction in the vicinity of the defence installations/establishments is concerned. Although Mr. Medhi has argued that the notification dated 21/10/2016 has been kept in abeyance, yet, no convincing documentary evidence could be produced by the respondents in support of their above stand.
18. Be that as it may, in absence of any contrary materials available on record, this Court is of the opinion that the notification dated 21/10/2016 is holding the field as on date. If that be so, it is apparent that no construction can be raised within 10 meters of a defence installation/establishment without obtaining prior NOC from the local Military Authority/defence establishment. However, no such 'NOC' from the Defence Authority would be necessary if the construction is beyond 10 meters from the outer wall of the defence installation.
19. While interpreting the mandate of the notifications dated 18/05/2011 as well as 21/10/2016, the Delhi High Court, while dealing with an issue of similar nature, has made the following observations in paragraph 40 in the case of Union of India (Supra), which is reproduced herein below for ready reference :-
"40. Having noted the guidelines / instructions, I must state that the argument of Mr. Subramanium appears to be appealing on a first blush, but on a deeper consideration, it is seen that, the guidelines of October 21, 2016 have been issued because of representations received from the elected representatives to review the guidelines of 2011, as difficulties are being faced by public in constructing building on their own and pending amendments to works of Defence Act, 1903, the Government decided to amend the guidelines of May 18, 2011 read with letter dated March 18, 2015. So it is clear, that guidelines of October 21, 2016 were issued as amendment to the guidelines of 2011 / 2015. I may state here, the guidelines of 2011 inter alia stipulates any construction coming up within 100 mtrs (for multistory building of more than four storeys, the distance shall be 500 mtrs) requires NOC from the Station Page No.# 8/10 Commander. But in the guidelines of 2016, the words "for multistory building of more than four storeys the distance shall be 500 mtrs" are missing. The endevour of Mr. Subramanian is to contend that, by implication the said words must be read in 2(a) of the guidelines of 2016. I am afraid such a plea cannot be accepted. The Clause 2(a) of 2016 guidelines only stipulates a restriction of 10 mtrs with regard to installations located at 193 stations as listed in Part A of Annexure to the circular that too, to maintain a clear line of sight for effective surveillance. There is nothing in the circular to show any restriction has been put for construction beyond 10 mtrs. In other words, the words "for multistory building of more than four storeys the distance shall be 500 mtrs" have not been stipulated in the guidelines of 2016, which have been framed as amendment to 2011/2015 guidelines. Further the words 'Any construction or repair activity within such restricted zone of 10 mtrs will require prior No Objection Certificate (NOC) from the Local Military Authority (LMA) / Defence Establishments" also throw light, that construction activity beyond 10 mtrs without height restriction is permissible. If the Authority intended to put any restriction on the height, it would have specified so, as was done in Clause 2(b) of the guidelines dated October 21, 2016. The effect of the amendment is that it shall replace the old guidelines of 2011/2015 and shall continue to govern the issue of NOC for building construction, w.e.f October 21, 2016. So, the construction of building above four storeys beyond 10 mtrs. is permissible. In fact, this is how the Commandant has also, read the guidelines to mean. This I say so, as pointed by Mr. Nigam that, the Commandant has not objected to the construction of a Hotel, with nine floors of a height of 36 mtrs. The Commandant has given some justification as to what action he has taken on such construction. But the fact is, the Hotel is in place and a Completion Certificate has been issued to the Hotel. So, the plea of Mr. Balasubramanian is without any merit and is rejected."
20. After considering the facts of this case, I am also in respectful agreement with the above observations made by the learned Single Judge of the Delhi High Court holding that Page No.# 9/10 under the notification dated 21/10/2016, no 'NOC' from the Army Authority would be necessary in case of any construction carried out beyond the distance of 10 meters from the outer wall of any defence establishment included in the Annexure to the said notification.
21. In so far as the order of the Rajasthan High Court in the case of S.R. Land Square Private Ltd. (Supra) relied upon by Mr. Medhi is concerned, a perusal of the said order goes to show that the same relates to the guidelines of 18/05/2011. The Division Bench had taken note of the notification dated 18/05/2011 and passed the order. However, there is no mention of the guidelines issued subsequently on 21/10/2016. It is also not clear as to whether the notification dated 21/10/2016 containing the fresh guidelines were at all brought to the notice of the Bench before the order was passed in the said matter. Therefore, I am of the view that the order passed in the case of S.R. Land Square Private Ltd. (Supra) was rendered in the facts of that case and the same would be of no assistance to the respondent nos. 4 and 5, in the facts and circumstances of the present case.
22. Situated thus, I am not inclined to accept the stand of the respondents' counsel that the construction of multistoried building raised by the petitioner company beyond the limit of 10 meters from the outer wall of the defence installation/establishment could not have been raised without prior NOC from the respondent nos. 4 and 5.
23. As noticed above, this Court has already held that for the purpose of issuance of 'NOC' for raising constructions within the vicinity of Defence/Army installations, the notification dated 21/01/2016 will hold the field and, therefore, all such issues would have to be considered and resolved in the light of the said notification. I find from the communication dated 04/04/2022 issued by the respondent no. 3 addressed to the respondent no. 5 that the construction undertaken by the petitioner is in between 80 meters to 100 meters away from the boundary wall of the defence installation, represented by the respondent nos. 4 and 5. However, there is no indication as to whether the boundary wall constructed by the petitioner company did comply with the terms of the notification dated 21/10/2016. Therefore, a factual verification of the said aspect of the matter would be called for.
24. As such, while setting aside the impugned order dated 08/06/2022 (Annexure-VII), this writ petition is being disposed of by directing the respondent no. 3 to verify the necessary facts, in the light of the observations made herein before and thereafter, pass a fresh order pertaining to the building construction permission issued to the petitioner Page No.# 10/10 company. The said exercise be carried out and completed within a period of 7 (seven) days from the date of receipt of a certified copy of this order.
25. With the above observations, the writ petition stands disposed of.
There would be no order as to costs.
JUDGE Sukhamay Comparing Assistant