Court clarified that height restrictions in construction near military establishments are not applicable if the construction is beyond certain distances established in guidelines. No NOC is required under these circumstances.

JUDGMENT

Poonam A. Bamba, J.:

C.M.No. 48089/2019 in LPA No. 693/2019 & C.M.No. 48106/2019 in LPA No. 697/2019

(i) Vide these applications under section 5 of the Limitation Act read with section 151 of the Code of Civil Procedure, condonation of delay of 247 days in filing of the present appeals has been sought. It is submitted that the delay occurred due to administrative reasons i.e. the file had to be put up at various levels.

(ii) For the reasons stated in the applications, delay is condoned. Applications are disposed of accordingly.

LPA 693/2019

LPA 697/2019

1.0. Both the above appeals are preferred by the appellant Union of India ('UOI' in short) under Clause 10 of the Letters Patent (as applicable to the Delhi High Court), assailing the common judgment dated 11.01.2019 passed by the Ld. Single Judge ('impugned judgment' in short), whereby:

(i) the Writ Petition bearing No. 6901/2017 filed by Union of India, the appellant herein inter alia seeking directions for quashing of sanction accorded to Dr.Naryan Dutt Shrimali Foundation ("NDSF" in short)/the respondent no. 4 herein, for construction of building to house a hospital at site no. 2, Zone H-4/5, Facility Center, Pitampura, Delhi-110034 ("the site" in short), was dismissed; and

(ii) the writ petition filed by NDSF/the respondent no. 4 herein bearing WP (C) 9883 of 2017, was allowed declaring that the Commandant/ appellant herein could not insist on obtaining of NOC from defence establishment, by the respondent no. 4 herein for the said construction.

2.0. Vide LPA No. 693/2019, the appellant/Union of India has challenged the impugned judgment allowing WP(C) 9883/2017, filed by the respondent no. 4 herein.

2.1. Vide LPA No. 697/2019, the appellant/Union of India has challenged the impugned judgment dismissing the appellant's WP(C) No. 6901/2017.

3.0. At the outset, the facts relevant for disposal of the present appeals are extracted hereunder:

(i) NDSF/respondent no. 4 herein was allotted the site in the year 1996 to establish a charitable hospital for the benefit of public in Delhi. The NDSF/respondent no. 4 initially got sanctioned a building plan with 100 FAR with height of 33.5 meters vide letter dated 08.07.2013. NOC and permission for the project from Airport Authority of India (AAI) (w.r.t. height of the project vide letter dated 13.06.2012), Delhi Urban Arts Council (DUAC) and Chief Fire Officer, were obtained;

(ii) subsequently, pursuant to notification dated 23.09.2013, Ministry of Urban Development notifying increase in FAR from 100 to 375 for hospital land (plot of more than 2.5 hectares) in Delhi, NDSF/respondent no.4 applied for sanction of the revised building plan vide application dated 08.10.2015 for the height of 45 meters and FAR 150 meters (and 70 meter). During the course of arguments, Ld. counsel for the respondent no. 4/NDSF submitted that NDSF was willing to construct the hospital as per initial sanction plan i.e. 100 FAR with height of 33.5 meters;

(iii) the appellant herein raised objection, vide letters dated 10.12.2016 and 06.01.2017, that the sanction to the respondent no. 4 for construction of building/hospital was accorded by North DMC without any information to the military authorities; and that the said building/hospital was coming up at a distance of approximately 50 meters from vital Army establishment i.e. Ordnance Depot, Shakur Basti, located in A- 1, Defence Land, which will be a security concern; and the No Objection Certificate ("NOC" in short) could not have been given;

(iv) vide letter dated 10.12.2016, the appellant informed North DMC that in terms of para (1)(b) of Ministry of Defence, Government of India letter dated 18.05.2011, NOC cannot be given by the Station Commandant Delhi, for construction of hospital by NDSF/respondent no. 4, in the vicinity of Ordnance Depot, Shakur Basti;

(v) thereafter, North DMC vide letter dated 26.12.2016 requested the respondent no. 4 to obtain NOC from defence establishment/comply with di