Executive Guidelines Cannot Supersede Works Of Defence Act For Building Permissions Around Military Establishments: Karnataka High Court

The Karnataka High Court has held that authorities cannot rely on executive guidelines for issue of NOC for regulating building constructions around Defence establishments, as long as the Works of Defence Act, 1903 is in operation.

A single bench of Justice S Sunil Dutt Yadav allowed the petition filed by Jambo Plastics Pvt Ltd and directed BBMP to consider sanctioning the former's plan, which is kept in abeyance, without insisting for adherence to the Guidelines dated 21-10-2016. It said,

“Executive Guidelines have no place when the field is occupied by Legislation, the Guidelines cannot be relied upon by the Union Government to impose restriction as long as the Works of Defence Act, 1903 is in operation and is not amended."

The petitioner's application for sanction of residential plan was rejected by BBMP with an endorsement to obtain NOC from the Ministry of Defence, in terms of a letter issued by the Chief Quality Assurance Officer of the Ministry.

The petitioners submitted that when Works of Defence Act 1903 occupies the field, there cannot be recourse to exercise of executive power in such a field.

Chief Quality Assurance Officer contended that NOC is to be obtained from the local Military Authority where the proposed construction is within 100 Meters and in case of multi-storey building of more than four storeys, NOC is required where building is within a distance of 500 Meters from the compound wall of the Defence Establishment.

Findings:

The bench noted that the Works of Defence Act, 1903 has been enacted with the object of providing for imposition of restrictions upon use and enjoyment of land in the vicinity of Works of Defence. Section 3 of the said Act provides for declaration regarding imposition of restrictions and Section 7 provides for restriction.

Referring to the provisions of the Act and the Guidelines, the bench said, “The question of resorting to exercise of Executive power where a statute passed in exercise of legislative power is in operation, does not arise.”

It added, “When the legislative scheme contained in the Act provides for a methodology for imposition of restriction regarding proposed constructions in the vicinity of a Defence Establishment, there cannot be resort to exercise of Executive power for imposing such restrictions.”

Court observed that when power is required to be exercised under the statute in a particular manner, there cannot be recourse to achieve the same consequence in a different manner by recourse to exercise of Executive power.

It also held that so far as the Developer is concerned, the right to carry on occupation, trade or business including of developing property would be a right falling within Article 19(1)(g) of the Constitution of India and restriction to be imposed upon such right under Article 19(1)(g) would be only by a law under Article 19(6) which is by a legislative law and cannot be by an Executive action.

It relied on Apex court's decision in Union of India v. Naveen Jindal (2004) and noted that restriction being imposed on the right to construct within the vicinity of a Defence Establishment including restrictions to construct buildings upto a certain height may amount to infringement of the right under Article 300-A of the Constitution of India.

It held, “The right of the owner of the property, i.e. petitioner No.1 to obtain sanction of building plan which is a concomitant right of property cannot be abridged by an Executive fiat as in the nature of Guideline in the present case. Accordingly, the Guidelines would be illegal insofar as they infringe upon the right of the petitioner No.1 to enjoy his property.”

On perusing the guidelines the court expressed that the said Guidelines are not issued in the name of the President. Rejecting the contention of the Ministry that the Guidelines have been passed in exercise of power conferred under the 35 Government of India (Transaction of Business) Rules, 1961 as well as Government Of India (Allocation of Business) Rules, 1961, Court held,

“In the present case, none of the Guidelines are in the name of the President. Article 77(1) stipulates that all Executive action of Government of India shall be expressed to be taken in the name of the President and accordingly, Rules made by the President under Article 77(3) are also required to conform with the condition that exercise of Executive power must be in the name of the President.”

Accordingly it allowed the petition.

Case Title: Jambo Plastics Pvt. Ltd & Others AND Chief Quality Assurance Establishment & Others.

Case No: Writ Petition No.40510 OF 2017

Citation: 2023 LiveLaw (Kar) 336

Date of Order: 29-08-2023

Appearance: Senior Advocate Rajesh Chander Kumar for Advocates Yovini Rajesh Rohra, PS Deeparani and Sakhee Mehta for Petitioner.

Senior Advocate Uday Holla for Advocate Manu K FOR P2.

CGC M.N. Kumar for R1.

Advocate Sumangala Simmath for R3

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