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2016 Supreme(Bom) 1164
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI & B.P. COLABAWALLA, JJ.
Provincial Housings and Property Ltd. - Petitioner
Vs.
Union of India and others - Respondents
WRIT PETITION NO. 772 OF 2014
Decided On : 08-09-2016
For the Petitioner: Mr. Chirag Balsara a/w Hamza Talati i/b M/s. Diamondwala & Company.
For the Respondent: Dr. G.R. Sharma a/w Mr. D.P. Singh.
The main legal point established in the judgment is that the restrictions imposed by the Notification and Condition No.55 were justified under the Works of Defence Act, 1903, and that past constructions and NOCs did not justify the Petitioner's actions.
Headnote:
Notification - Challenge under Article 226 of the Constitution of India - Works of Defence Act, 1903 - Section 3, Section 7(c) - The court discussed the Notification bearing No. SRO 150 dated 19th June, 1976 issued by the Government of India, Ministry of Defence and the restrictions imposed on the enjoyment of land in the State of Maharashtra. The court also examined the challenge against Condition No.55 imposed in the revised Letter of Intent dated 30th May, 2009 requiring the Petitioner to obtain the NOC of the Juhu Wireless Station. The legal provisions of the Works of Defence Act, 1903, particularly Section 3 and Section 7(c), were interpreted to determine the legality of the restrictions and the requirement for NOC.
Fact of the Case:
The Petitioner challenged a Notification and Condition No.55 imposed by the Government of India, Ministry of Defence, restricting the enjoyment of land in Maharashtra and requiring the Petitioner to obtain NOC for construction near the Juhu Wireless Station. The Petitioner contended that the restrictions were illegal and bad-in-law.
Finding of the Court:
The court found that the restrictions imposed by the Notification and Condition No.55 were justified under the Works of Defence Act, 1903. The court rejected the Petitioner's arguments that the Notification had become redundant and otiose, and that past constructions and NOCs justified the Petitioner's actions.
Issues: The issues revolved around the legality of the Notification and Condition No.55, the interpretation of the Works of Defence Act, 1903, and the relevance of past constructions and NOCs in justifying the Petitioner's actions.
Ratio Decidendi: The court held that the restrictions imposed by the Notification and Condition No.55 were in accordance with the Works of Defence Act, 1903, particularly Section 7(c), and that past constructions and NOCs did not justify the Petitioner's actions.
Final Decision: The court discharged the rule and dismissed the Writ Petition, finding no merit in the Petitioner's contentions.
B.P. Colabawalla, J.
1. Rule. By consent of parties, rule is made returnable forthwith and heard finally.
2. By this Writ Petition, filed under Article 226 of the Constitution of India, the Petitioner has challenged the Notification bearing No. SRO 150 dated 19th June, 1976 (for short, the “said Notification”) issued by the Government of India, Ministry of Defence (Respondent No.1). This Notification is issued in exercise of powers conferred by section 3 read with section 7(c) of the Works of Defence Act, 1903 (for short, the “said Act”). By virtue of this Notification, certain restrictions are imposed on the enjoyment of land in the State of Maharashtra and more particularly described in the Schedule thereto. Apart from challenging the said Notification, the Petitioner has also challenged Condition No.55 imposed in the revised Letter of Intent (“LOI”) dated 30th May, 2009 requiring the Petitioner to obtain the NOC of the Juhu Wireless Station, being a Division of Respondent No.2.
3. Some basic facts need to be narrated to decide the controversy in the present Petition. The Petitioner has been appointed as a Developer to implement the Slum Rehabilitation Scheme over a portion of non-agricultural land admeasuring 12,669 sq.mtrs. together with the structures standing thereon, bearing CTS No.11, Survey No.58B of Village Juhu, J.R. Mhatre Marg, Juhu, Mumbai 400 049 (for short, the “said property”). It is an admitted fact that the said property is lying within a distance of 500 yards from the crest of the outer parapet wall of the Juhu Wireless Station. According to the Petitioner, the said property is owned by the State of Maharashtra and is a censused slum.
4. It is averred in the Petition that in the year 1994, slum dwellers on the said property came together with the intention of redeveloping the said property and formed a proposed society known as Mora Saibaba Co-operative Housing Society Ltd. (Proposed). The said proposed society appointed the Petitioner as the Developer for redevelopment of the said property under the Slum Rehabilitation Scheme and accordingly, entered into a development agreement with the Petitioner on 11th October, 1994. It is the case of the Petitioner that since the said property was a censused slum, the same was capable of being developed under the Slum Rehabilitation Development (“SRD”) Scheme as applicable in the year 1995. This Scheme was approved on 16th April, 1996 and the Municipal Corporation of Greater Mumbai also issued a LOI on 11th May, 1996 and sanctioned the said Scheme as per the terms and conditions set out therein.
5. Thereafter, by a Notification dated 27th August 1996 and which was made final with effect from 15th October 1997, the State of Maharashtra gave an option for conversion of the SRD Scheme to the Slum Rehabilitation Authority (“SRA”) Scheme. In view thereof, in relation to the said property, the Petitioner made an application for conversion from the SRD Scheme to the SRA Scheme. Accordingly, sanction was granted and a revised LOI dated 6th July, 2006 was issued by the Competent Authority. It is the case of the Petitioner that under clause 40 of the said revised LOI dated 6th July 2006, Respondent No.3 allowed the Petitioner to construct buildings upto a height of 19.20 mtrs.
6. It is the case of the Petitioner that thereafter there was an increase in entitlement of the permanent alternate accommodation to be allotted to the slum dwellers (from 225 sq.ft to 269 sq.ft.) and accordingly, a revised LOI was issued to the Petitioner on 30th May, 2009 by Respondent No.3. In this revised LOI, Respondent No.3 imposed Condition No.55 requiring the Petitioner to obtain the consent/specific remark from Respondent No.2. Condition No.55 reads as under :-
“55. That as per the policy decision of Municipal Commissioner u/no. MCP/1355 dtd. 2/01/2009 as the plot under reference falls within the influence zone of military signal transmission station at Juhu. The specific remarks in this respe
