IMPORTANT POINT
The court established that existing permanent constructions completed before the issuance of a restrictive Notification under the Works of Defence Act are exempt from such restrictions, permitting their redevelopment within specified height limits.

JUDGMENT/ORDER

FIRDOSH P.POONIWALLA, J. - By earlier Orders passed by this Court, this Writ Petition was directed to be heard finally at the admission stage. Rule. Rule made returnable forthwith and the Petition is heard finally by consent of the parties.

2. The Petitioner is the owner of land admeasuring 3, 627.90 sq. metres bearing Plot No.9-A, CTS No. 37 and 38A at Village Juhu, Taluka Andheri, in Juhu Vile Parle Development Scheme, Mumbai ("the said land").

3. In 1973, a structure having a built-up area of 18, 982.06 sq.ft. was constructed on the said land ("the said structure"). The same was used as a Cinema Hall named Chandan Cinema. The said structure had a height of 16.913 metres. The Completion Certificate in respect of the said structure was granted on 1/12/1973.

4. In 2017, the Municipal Corporation of Greater Mumbai ( Respondent No. 3) issued a Notice dtd. 23/3/2017, under Sec. 354 of the Mumbai Municipal Corporation Act 1888, to the Petitioner, stating that the said structure was in a ruinous condition, was likely to fall and was dangerous to any person occupying the same or passing by the same, and calling upon the Petitioner to repair/pull down the said structure within a period of thirty days from the date of receipt of the said Notice.

5. The Petitioner stopped operating a Cinema Theatre in the said structure. Being desirous of demolishing the said structure and reconstructing the same, the Petitioner prepared plans for proposed building of basement, ground plus 11 upper floors, with a height of 50.70 metres above ground level, by consuming FSI of 12, 722.22 sq. mrts.

6. The Petitioner made an Application dtd. 30/3/2018 to the Airport Authority of India seeking its No Objection Certificate ("NOC") for construction of such a building on the said land. By a letter dtd. 20/5/2018, the Airport Authority of India issued its NOC subject to the terms and conditions stated therein.

7. The Petitioner also applied and obtained Development Plan Remarks ("DP Remarks") from Respondent No.3 for the said land, as per Development Plan 2034, on 28/2/2019. The said DP Remarks stated that the said land is situated in a residential zone, is affected by the existing amenity of a Cinema Theatre and that it falls within the Coastal Regulation Zone (CRZ) II. The DP remarks did not contain any condition to the effect that any NOC would be required from either Respondent No.1 or Respondent No.2 for redevelopment of the said structure.

8. It is the case of the Petitioner that, in 2019, when the Petitioner proceeded to apply to Respondent No.3 for approvals for redevelopment of the said structure on the said land, the Petitioner was advised by its Licensed Surveyor that NOC of Respondent No.2 would be required in view of the Notification dtd. 19/6/1976 (the "said Notification") as there was a Signal Transmitting Station of Respondent No.1 in the vicinity of the said land. It is also the case of the Petitioner that the said Notification was clarified by a Clarification dtd. 14/11/2012 (the "said Clarification"). By the said Clarification, it was clarified that the outer parapet, in relation to any military installation where the Works of Defence Act, 1903 (the "WoD Act") has been imposed, referred to the boundary/ railing built along the entire plot and that the restrictions would apply from the outer boundary wall of the Juhu Military Station and not from the area where the tower was located per se.

9. It is further the case of the Petitioner that the said land is situated at a distance of 144.39 mtrs from the closest boundary of the Signal Transmitting Station of Respondent No.1 at Juhu. It is also the case of the Petitioner that, since he was advised by his architect that permission for development of the said land would not be processed by Respondent No.3, without the NOC of Respondent No.2, and to avoid further delay and loss to him, as a matter of abundant caution, on 23/5/2019, the Petitioner, through its Licensed Surveyor, M/s. Spa