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

The Bombay High Court directed BMC to process within four months the application for permission to reconstruct a three-storey house in Worli for Dainik Bhaskar director Girish Agarwal without requiring a No Objection Certificate from Naval authorities- due to the site’s proximity with naval missile battery base INS Trata.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...

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

Amisha Shrivastava

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