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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, V.G. BISHT, JJ.
M/s. Runwal Constructions – Petitioner
Versus
Union of India through its Ministry of Defence, New Delhi – Respondent
Writ Petition No. 2711 of 2020
Decided On : 06-05-2021
Constitution of India, 1950 - Article 226 - Indian Partnership Act, 1932 - Works of Defence Act, 1903 - Sections 3, 7 and 8 - MR & TP Act, 1966 - Sections 46 and 47 - Development Control and Promotion Regulations for Maharashtra State - Regulation 16(n) - Notification - Business of real estate development - Agreement - Challenging Communications issued by respondent no.2 refusing to grant of NOC to it for construction of their building, letter issued by respondent no. 5-Thane Municipal Corporation ( “TMC”) directing petitioner to obtain NOC from Indian Air Force Station - Restrictions on use of lands within 100 meters of Indian Air Force Station at Thane - TMC imposed a condition on petitioner to obtain NOC from Air Force Department, in case petitioner intends to construct over four floors contrary to prevailing law - Whether respondent-TMC though granted sanction of development of subject plot is justified in insisting for NOC from Defence Department prior to issuance of CC (Condition No. 10) vide Amended Permission Certificate.
Finding of the Court:
TMC could not have imposed a condition for development permission on basis of statement made by Defence Authorities that their proposal regarding restriction on construction upto 750 meters is under consideration before Defence formation - Thus decisions of UDD are clearly without any authority and powers available under MRTP Act or DCR - There was no equivalent DCR in case of TMC equal to regulation 16(n) of DCR 1991 applicable in Mumbai - Property of petitioner in present case is situated in Thane which is governed by unified Development Control and Promotion Regulations for Maharashtra State- DCR promulgated by State of Maharashtra under Section 31 of MRTP Act - Development Control and Promotion Regulations for Maharashtra State - Approximately 6923.40 sq. meters (16%) of said plot is within “No Development Zone.” Balance 35630 sq. meters (84%) of plot is outside “No Development Zone” and on said portion of plot, there are no restriction on Development other than those provided by sanctioned development plan and DCR - Competent Authority will have to ascertain and determine part of subject land which is directly affected by restrictions imposed by notifications under scheme of Defence Act which is complete code in itself - Condition of development permission requiring the petitioner to obtain NOC from Defence Authority prior to carrying out any construction is quashed and set aside - Direction issued.
Result: Order accordingly.
JUDGMENT :
V.G. BISHT, J.
1. Rule. Respondents waive service. By consent of parties, Petition is heard finally.
2. By this Petition under Article 226 of Constitution of India, the petitioner is challenging the Communications dated 14th March, 2017, June 2018, 6th July, 2018 and 5th October, 2018 issued by the respondent no. 2 refusing to grant of NOC to it for construction of their building, letter dated 27th August, 2019 issued by the respondent no. 5-Thane Municipal Corporation (herein-after referred to as “TMC”) directing the petitioner to obtain NOC from the Indian Air Force Station, Thane.
3. Brief facts are as under:
4. By and under an Agreement for Development dated 29th December, 2005 made between the Bombay Wire Ropes Limited, Warden Synplast Private Limited and M/s Runwal Constructions i.e. the petitioner in respect of the property at Kolshet Road, Thane admeasuring 1,55,697.71 square meters and the same was registered with the Sub-Registrar of Assurances at Thane on 28th June, 2006. Subsequently the Bombay Wire Ropes Limited executed a Power of Attorney on 28th June, 2006 in favour of the petitioner. The petitioner has received development permissions from the TMC from time to time.
5. According to the petitioner, since the proposed residential building as per sanctioned plans is located at a distance of more than 100 meters from the Indian Air Force Station at Thane and as such in law there is no restriction to develop the lands from a defence point of view. On 14th February, 2007 the Government of India issued a notification (Exh.B) under Sections 3 and 7 of the Works of Defence Act, 1903 (for short “Defence Act”) imposing the development restrictions in the areas to the extent of 100 meters from the Air Force Station at Thane.
6. On 13th January, 2010 a further notification (Exh.C) was issued by the Union of India under the provisions of Sections 3 and 7 of the Defence Act continuing the restrictions on the use of lands within 100 meters of the Indian Air Force Station at Thane. It is the case of the petitioner that from reading of the notifications dated 14th February, 2007 and 13th January, 2010, it is evident that the only restrictions imposed are to a distance of 100 meters from the Air Force Stations at Thane. In absence of any other notification under the Defence Act no other restrictions can be imposed for land use near the notified Air Force Station.
7. According to petitioner, on 18th May, 2011 a Circular (Exh.D) was issued by Ministry of Defence to Chief of Army, Navy and Air Force prescribing thereby a requirement of NOC for construction of building in the vicinity of Defence Establishment. The said circular mandates an NOC from the Defence Authority for construction of multi storey (more than four floors) building within 500 meters of any Defence Establishment. This circular unambiguously clarifies that the directions in the circular is only applicable to areas which are not regulated by the provisions and/or notifications under the Defene Act. The property in question is governed by the notification dated 14th February, 2007 and 13th January, 2010 issued under Section 3 and 7 of the Defence Act. In such circumstances, the circular dated 18th May, 2011 is not applicable to the property in question with regards to the restrictions imposed on construction for security reasons of Air Force Station Thane.
8. Further, on 1st September, 2011, respondent no. 4 erroneously relying upon the said circular dated 18th May, 2011 informed the respondent no. 7 that in addition to the restriction as prescribed vide notification dated 13th January, 2010 there is a requirement of seeking special clearance for constructing multi storeyed buildings (having more than four floors) within 500 meters of Defence Establishment a
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