JUDGMENT :

ARIJIT BANERJEE, J.

1. This appeal is directed against a judgment and order dated July 8, 2022, whereby the appellant’s writ petition being WPA No. 13756 of 2021 was dismissed along with two connected applications.

2. The appellant/writ petitioner had approached the learned Single Judge contending that Kolkata Municipal Corporation (in short ‘KMC’) ought not to have sanctioned a building plan in favour of the respondent no. 5 DSK Real Estates Limited (in short ‘DSK’), permitting construction of a G+40 storied building at premises no. 34, Diamond Harbor Road, Kolkata. The ground urged by the writ petitioner before the learned Single Judge and also before us, was and is, that construction of such a high rise in the immediate vicinity of the Ordinance Depot situated at 40, Remount Road, Kolkata, is prohibited by the relevant Circulars issued by the Ministry of Defence (in short MOD) and, in any event, would breach/jeopardize the safety and security of such Depot. The prayers made before the learned Judge were for a direction on KMC to cancel the building plan sanctioned by it and also to direct KMC to issue restraint order upon DSK requiring it not to take further steps in furtherance of the sanctioned plan.

3. The arguments advanced by the parties before the learned Single Judge were essentially the same as have been made by the parties before us, which I will shortly advert to. The learned Judge considered the relevant Circulars issued by the MOD and the applicable case law. The learned Judge found that the restrictions imposed in the Circular of 2011, which may have prohibited the subject construction, were substantially done away with in the Circular of 2016. The learned Judge found that KMC had sanctioned the concerned building plan in accordance with and not in breach of the restrictions mentioned in the 2016 Circular. The concluding observations of the learned Single Judge are as follows:-

“76. This Court can neither impute personal knowledge nor assess the security hazards, as rightly pointed out by Mr. Singhania. The matter is also pending before the Government of India for a further review of the circular dated October 21, 2016. The decision of this Court is restricted to the question whether any illegality has been committed by the KMC, in granting a building permit to the respondent no.5 and whether the sanction has been granted in violation of the security restrictions imposed by the Government. This court does not find that the KMC has failed to abide by the security guidelines as laid down by the Ministry of Defence, Government of India, in its circular dated October 21, 2016.

77. Moreover, by an order dated October 1, 2021, the Union of India was specifically directed to answer in its affidavit and clarify the position by giving its own interpretation of its guidelines.

78. The Court does not find that the UOI has supported the contentions of the petitioner, in the affidavit. The relevant portions of the affidavit are quoted below:-

“7. That in the year 2016, Guidelines were once again amended by Ministry of Defence vide their notification ID 11026/2/2011/D (lands) dated 21st October 2016, which states as under.

".....Reference Circular of even number dated 18 May 2011 read with amendments issued vide Circulars of even number dated 18 Mar 2015 and 17 Nov 2015 regarding grant of No Objection Certificate (NOC) from the Local Military Authorities (LMA) for construction of buildings in the vicinity of defence establishments.

2. In view of the large number of representations received from elected representatives to review the guidelines issued in 2011 as difficulties are being faced by public in constructing buildings on their own land and pending finalization of amendments to the Works of Defence Act 1903, the Government has decided to amend guidelines issued under Circular dated 18 Mar 2011 read with Circulars dated 18 Mar 2015 and 17 Nov 2015 in consultation with Services, in the following manner.

a) Security restri