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2019 Supreme(Bom) 1136
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Dharmadhikari, B.P. Colabawalla, JJ.
Sunbeam Enterprises – Appellant
Versus
Municipal Corporation of Greater Mumbai — Respondent
Writ Petition No. 229 of 2018, 3303 of 2018
Decided On : 21-06-2019
Denzil Dmello, Adv., Yashodeep Deshmukh, Adv., Vandana Mahadik, Adv., Anil C Singh, Adv., A.S. Khandeparkar, Adv., Aditya Thakkar, Adv., Geetika Gandhi, Adv., Pranil Sonawane, Adv., Prasad K Dhakephalkar, Adv., Kalpesh Joshi, Adv., Nisha Shah, Adv., Kalpesh Joshi & Associates, Adv., Parag Vyas, Adv., Abhay L Patki, Adv.
Headnote:
Constitution of India,1950 – Article 226- Works of Defence Act, 1903 – Section 3 - Mumbai Municipal Corporation Act, 1888 – Section 346 and 356A - Maharashtra Regional and Town Planning Act,1966 – Section 46 and 51 – Land - Occupancy certificate - Subject-matter of this writ petition is piece and parcel of land - Petitioner claims to be the owner and holder of development rights in respect of the said land - Petitioner has obtained ownership and development rights in respect of said land has been set out of the petition - On the said land, petitioner had applied for and obtained approvals from MCGM from time to time for construction of a new multi-storied building called "Laburnum" comprising of stilts plus ground - According to the petitioner, it has complied with all terms and conditions of approvals granted by MCGM to petitioner from time to time and has since completed construction of entire new building "Laburnum" in accordance with plans approved from time to time by respondent Nos. 1 to 3 and has provided all essential utilities that were to be provided by petitioner in the said building - Once this building was completed, petitioner through its architect submitted building completion certificate to Assistant Engineer of MCGM and made an application to issue the occupancy certificate in respect of the said building - According to the petitioner, at this juncture and for first time, MCGM has arbitrarily, extraneously and illegally imposed an unreasonable condition requiring the petitioner to check whether said land and the said building falls within 500 metres from the National Armaments Depot boundary and accordingly obtain from NAD a NOC - MCGM would not issue the occupancy certificate in respect of said building without the aforesaid NOC – Held, As far as the decision in Sea Corporation Pvt. Ltd. (supra) is concerned, same was dealing with Colaba Military Station - According to the Petitioner, this Military Station did not form part of list of defence establishments to which Ministry of Defence had imposed any restrictions vide its Circular - Furthermore, Division Bench held that Circular issued by the Ministry of Defence clarified that conditions contained in its earlier Circular were not to be made applicable to those permissions granted prior to said date -Court are afraid that even this decision does not in any way support the case of the petitioners before court - It is nobody case that the construction of the petitioners before court had been approved and there were no amendments to said approval/plans - In fact, as narrated in the facts above, permission for development granted to petitioners was much after Circular date - This being the case, relaxation granted by the Circular would not apply in the facts of the present case, and reliance placed even on this decision is wholly misconceived and does not carry the case of the petitioners any further - In view of the detailed discussion in this judgment and for all the reasons stated herein, court find no merit in either of the petitions - Rule is accordingly discharged and writ petitions are dismissed.
JUDGMENT :
B.P. Colabawalla, J.
Rule. Respondents waive service. By consent of parties, rule made returnable forthwith and heard finally.
2. The grievance raised in the above writ petitions is the insistence of the Municipal Corporation of Greater Mumbai (for short the "MCGM" or the "Planning Authority") [respondent Nos.1 to 3 in WP 229/2018 and respondent Nos.5 & 6 in WP 3303/2018] to obtain a No Objection Certificate ("NOC") from the Indian Navy before granting the occupancy certificate or granting development permission for the construction carried out/to be carried out by the petitioners. The reliefs sought in Writ Petition No. 229/2018 read thus:-
"(a) That this Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order in exercise of its powers under Article 226 of the Constitution of India and after calling for the records and proceedings relating to the present case and after considering the same, this Hon'ble Court may be pleased to quash and set aside the impugned condition issued by the respondent Nos. 1 to 3 (Exhibit "G" to the petition) after considering the validity and propriety thereof;
(b) That this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, direction or order in exercise of its power under Article 226 of the Constitution of India and thereby direct Respondents Nos. 1 to 3 to issue the Occupancy Certificate in respect of the New Building known as "Laburnum" without insisting on the Petitioner complying with the impugned condition issued by the Respondents (Exhibit - "G" to the petition), for obtaining NOC from NAD, Ghatkopar;
(c) That this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, direction or order in exercise of its power under Article 226 of the Constitution of India and thereby direct Respondents Nos. 1 to 3 to accept the Building Certificate in respect of the New Building known as "Laburnum" without insisting on the Petitioner complying with the Impugned condition issued by the Respondents (Exhibit- "G" to the petition), for obtaining NOC from NAD, Ghatkopar;"
3. As far as Writ Petition No. 3303/2018 is concerned, the reliefs sought therein are as under:-
"(a) That this Hon'ble Court be pleased to issue a writ of mandamus and/or any other writ, order or direction in the nature of mandamus and thereby be pleased to direct Respondent Nos. 5 and 6 to process and sanction all planning permission for construction of the composite development on the said Property bearing CTS No. 135 of Kurla-2 without insisting on a No Objection Certificate from Respondent Nos. 1 to 3 in accordance with the provision of MRTP Act 1966 and the prevailing Development Control Regulations;
(b) That this Hon'ble Court be pleased to issue a writ of certiorari and/or any other writ, order or direction in the nature of certiorari calling for the records and proceedings in respect of issuance of letters dated 23 October 2017 by Material Superintendent of Material Organization Ghatkopar West and letter dated 2 January 2018 issued by Respondent No. 3 refusing to grant NOC in favour of the Petitioner for construction of composite building on the said Property bearing CTS No. 135 of Kurla - 2 and after going through the legality, validity and propriety thereof be pleased to quash and set aside the same;
(c) That this Hon'ble Court be pleased to issue a writ of mandamus and/or any other writ, order or direction in nature of mandamus directing Respondent Nos. 1 to 2 to issue a formal No Objection Certificate for construction at the said Property bearing CTS No.135 of Kurla-2 in favour of the Petitioner to Respondent numbers 5 to 7;"
4. Though the facts in both the writ petitions are slightly different, since common
