Bombay High Court Paves Way For Reconstruction Of Dainik Bhaskar Director’s House Near INS Trata Without NOC From Naval Authorities

A division bench Justice Sunil B Shukre and Justice MW Chandwani observed –

“the facts of this case are so glaring that it would be illogical and even absurd to say that same building with same height at the same place as the earlier building which existed in the vicinity of INS Trata would become a security hazard upon its construction. What was not a hazardous structure from security view point would not become so only because it is constructed anew without any increase in height.”

The Ministry of Defence had cited the 2008 terrorist attack in Mumbai as the reason for changed security requirements, including NOC from the Naval authorities for the construction.

The court also quashed four Defence Ministry circulars dated May 18, 2011, March 18, 2015, November 17, 2015 and December 23, 2022 imposing certain restrictions on use of land near “Defence Establishments” such as INS Trata.

The 1648.85 square meters property owned by BMC in the Ponchkhanwala Road area includes a building known as "Summit", consisting of a Ground and Two upper floors. It changed hands over the years and eventually came into the possession of the petitioner, Dolby Builders Pvt. Ltd, who is the lessee of BMC. The petitioner sought to reconstruct the Summit building, which was demolished in 2005, in the same configuration, i.e., a Ground + Two storeys, for the personal use of Agarwal, one of the shareholders of the company, and his family.

Before granting development permission, BMC required the petitioners to obtain a No Objection Certificate (NOC) from the authorities of INS Trata, who refused citing security concerns as the proposed structure will have a direct line of sight to INS Trata.

Thus, the petitioners approached the High Court challenging the requirement of NOCs. The petitioners also challenged the validity of various circulars issued by the Ministry of Defence imposing restrictions on constructions near Defence Establishments.

The Ministry of Defence has issued several notifications, guidelines and circulars, regulating construction near Defence establishments. In December 2022, new guidelines were issued that prohibit development within 50 meters of the outer wall of Defence Establishments like INS Trata.

Senior Advocate Milind Sathe for the petitioners contended that the circulars issued by the Ministry of Defence are ultra vires the Works of Defence Act, 1903 (Act of 1903) as they have been issued without adhering to the procedural requirements mandated by the Act. Further, Sathe claimed that imposing restrictions on land use under the Act necessitates compensation to the landowner, which has not been provided in this case. He contended that executive instructions, as contained in the impugned circulars, should only fill legislative gaps and not bypass established legislation.

Sathe pointed out that Regulation 18 of the Development Control and Promotion Regulations for Greater Mumbai, 2034 (DCPR 2034), which deals with "Requirement of Site," omits the phrase "or is not in the public interest". According to Sathe, this means that the BMC should grant development permission to the petitioners based on the factors outlined in Section 46 of the Maharashtra Regional & Town Planning Act, 1966, (MRTP Act) and DCPR 2034, which do not mandate an NOC from Defence Authorities.

Sathe argued that the circulars infringe upon the petitioners' right under Article 300A of the Constitution to construct a residential house in a residential area without due legal process. Sathe also contended that if the old structure, with the same height as the proposed one, was not considered a security hazard as it stood, insistence by BMC for an NOC or the refusal of NOC by the Naval authorities is manifestly arbitrary.

Additional Solicitor General of India (ASGI), for the Ministry of Defence contended that security for Naval Establishments supersede other considerations as larger public interest can be well served only when the country’s Defence Establishments remain safe. He submitted that the petitioners' proposed construction poses a security risk due to its proximity to the boundary wall of the Naval authorities and its direct line of sight to the operational infrastructure of INS Trata, which is not the case with other structures near INS Trata.

The ASGI pointed out that the right to property is not absolute and is subject to reasonable restrictions, contending that the impugned circulars constitute reasonable restrictions that safeguard public interest. He submitted that the changed security scenario following the 2008 Mumbai terrorist attack necessitates stricter controls near Defence establishments.

The court noted that the impugned circulars are executive instructions issued by the Ministry of Defence under Article 73 of the Constitution. The court observed that no person can be deprived of his property except by authority of law.

The court noted that the Act of 1903 is a comprehensive legislation that governs the use of land near Defence Establishments. Any restrictions and compensation in this regard should follow the procedure outlined in the Act, the court held.

“Act 1903, being a complete Code in the matter of restrictions to be imposed upon right to enjoy property, already occupies the field and, therefore, if any restrictions are to be imposed, they must be in accordance with this law, which occupies the field”, the court held.

The court relied on Supreme Court judgment in Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, stating that the term "law" in the context of Article 300A of the Constitution refers to positive or State-made law. Executive orders or circulars, in this context, do not meet the criteria of "law", said the court.

The court concluded that the four circulars were not issued in accordance with the Act of 1903, and since this Act already governs such matters, executive instructions cannot impose additional restrictions.

Section 46 of the MRTP Act outlines factors for the Planning Authority to consider when considering development permissions. The court noted that while DCPR 2034 does not explicitly mention an NOC from defence authorities, it does allow for additional factors to be considered if they are relevant to ensure safe and secure development. Therefore, the need for an NOC depends on the relevance of security concerns raised by defence establishments in each specific case, said the court.

The court applied the Wednesbury principle of unreasonableness, and concluded that requiring an NOC for a building of the same height as the previous one, which did not pose security risks, is unreasonable.

Thus, the court partially allowed the petition, quashing the four circulars and directing BMC to process the application without requiring an NOC from defence authorities. The court also rejected the request for a stay on this judgment.

Senior Advocate Milind Sathe along with Advocates Saket Mone and Abhishek Salian of Vidhii Partners represented the Petitioners.

Advocates Aditya Thakkar and DP Singh represented the Defence Ministry and Naval authorities.

Case Title: Dolby Builders Private Ltd & other vs Municipal Corporation of Greater Mumbai & others [Writ Petition No.2724 Of 2021]

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