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IN THE HIGH COURT OF KARNATAKA
S. Sunil Dutt Yadav, J.
Jambo Plastics Pvt. Ltd. – Appellant
Versus
Chief Quality Assurance Establishment – Respondent
Writ Petition No. 40510 of 2017 (LB-BMP)
Decided On : 29-08-2023
WORKS OF DEFENCE ACT - Building Sanction and NOC Requirements - Sections 3, 7 of the Works of Defence Act, 1903 - The court analyzed the applicability of the Works of Defence Act, 1903, particularly Sections 3 and 7, which impose restrictions on land use near defense establishments. The court interpreted these provisions as establishing a legislative framework that must be adhered to, overriding any executive guidelines that lack statutory backing. The insistence on obtaining a No Objection Certificate (NOC) from the Ministry of Defence was deemed invalid as it infringed upon the petitioners' rights under Articles 19(1)(g) and 300A of the Constitution of India.
Fact of the Case:
The petitioners, owners of land in Bengaluru, sought to quash an endorsement requiring a No Objection Certificate (NOC) from the Ministry of Defence for a building sanction plan. They argued that the insistence on the NOC was based on guidelines that lacked statutory authority and infringed their property rights.
Finding of the Court:
The court found that the Works of Defence Act, 1903, occupies the field regarding restrictions on land use near defense establishments. The guidelines issued by the Ministry of Defence were not legally binding as they did not have the force of law and could not infringe upon the petitioners' constitutional rights.
Issues: Whether the insistence on obtaining an NOC from the Ministry of Defence was valid under the Works of Defence Act, 1903, and whether the guidelines issued by the Ministry had the force of law.
Ratio Decidendi: The court held that executive guidelines cannot override statutory provisions. The Works of Defence Act, 1903 provides a clear legislative framework for imposing restrictions on land use near defense establishments, and any executive action contrary to this framework is invalid.
Final Decision: The court set aside the endorsements requiring the NOC and directed the BBMP to consider the building sanction application without insisting on the NOC, in accordance with applicable laws.
JUDGMENT
S.SUNIL DUTT YADAV, J. - The present petition has been filed seeking for issuance of writ of certiorari to quash the endorsement at Annexure-'T' dtd. 3/9/2016 issued by the Joint Director (Town Planning-South) Bruhat Bengaluru Mahanagara Palike (BBMP) and has also sought for setting aside of the letter dtd. 15/7/2016 issued by the Chief Quality Assurance Establishment (respondent No.1) at Annexure-'S'. The petitioner has also sought for issuance of writ of mandamus to direct respondent No.2 to consider the application submitted by the petitioners for issuance of building sanction plan without insisting for No Objection Certificate (NOC) from respondent No.1 in view of the Circular dtd. 21/10/2016 at Annexure-'V' issued by Ministry of Defence.
BRIEF FACTS:-
2. The petitioner No.1 is stated to be the owner of the land bearing Municipal No.70/1, BBMP, PID No. 2-172-70/1, Ward No.2, Tumkur Road, Bengaluru, morefully described in the Schedule. It is stated that the petitioner No.1 had entered into a Joint Development Agreement dtd. 8/9/2014 with petitioner No.2 for the purpose of carrying out development of the residential project.
3. The petitioner No.2 had filed an application with respondent No.2-BBMP for sanction of residential plan on 19/6/2015. However, the respondent No.2 is stated to have issued an endorsement dtd. 29/3/2016 at Annexure-'M' directing the petitioner to obtain NOC from the Ministry of Defence in terms of the letter dtd. 14/1/2016 of the respondent No.1 [Chief Quality Assurance Officer, Ministry of Defence (DGQA), Government of India] and subsequently present the plan for sanction.
4. It is submitted that letter was addressed to the respondent No.2-BBMP to communicate with the respondent No.1 for issuance of NOC as regards the approval of building plan, that on 8/7/2016, letter was addressed to the respondent No.1 seeking for issuance of NOC. On 15/7/2016, the respondent No.1 has addressed the letter stating that the construction put up by the petitioners is a potential security risk to the first respondent's Establishment and denied issuing of NOC, while relying on the letter dtd. 4/7/2016, issued by the Ministry of Defence.
5. It is stated that on the basis of number of representations received by the property owners and public regarding the difficulties faced, the Guideline/letter dtd. 18/5/2011 was revised and a new set of Guidelines dtd. 21/10/2016 (hereinafter referred to as 'the Guidelines') were issued.
6. After series of correspondences, the respondent No.1 is stated to have addressed a letter to the 'Additional DGQA (Naval), ' Director of Quality Assurance (Naval), New Delhi seeking clarification with regard to the issuance of NOC to the BBMP as regards approval of building plan submitted by the petitioners.
7. Accordingly, the petitioners having learnt that no reply had been sent by Additional DGQA (Naval) either to the first or second respondent clarifying the position with regard to issuance of NOC and accordingly, the present petition has been filed.
8. The statement of objections have been filed by respondent Nos.2 and 3 to the effect that in light of the endorsement at Annexure-'T' dtd. 3/9/2016, there was no discretion with the BBMP in terms of the letter dtd. 15/7/2016 of the Ministry of Defence.
9. It is further submitted that in terms of the communication dtd. 15/7/2016 addressed to the respondent No.2-BBMP, it was observed that the construction being a potential security risk, NOC cannot be given to the Establishment and that such stand was reiterated by the higher Authority at the Head Quarters BQA(N) and the said issue has been taken up with the Ministry of Defence.
10. It is further submitted that despite the revised Guidelines, the petitioners are required to obtain NOC from respondent No.1.
11. The statement of objections has been filed by respondent No.1 on 5/3/2018 and subsequently additional objections were filed on 4/10/2021. The respondent No.1 has taken the stand that in
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