Point of Law : No such 'NOC' from Defence Authority would be necessary if construction is beyond 10 meters from outer wall of defence installation.

JUDGMENT :

1. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. P.K. Deka, learned counsel for the writ petitioner. Also heard Mr. S.K. Medhi, learned CGC, appearing on behalf of the respondent nos. 1, 2, 4 and 5 and Mr. S.C. Keyal, leaned counsel representing the respondent no. 3.

2. This writ petition has been filed being aggrieved by the order dated 08/06/2022 (Annexure-VII) whereby, the respondent no. 3 had kept in abeyance the building ‘NOC’ earlier issued in favour of the petitioner company for construction of a G+4 building.

3. The facts of the case, in a nutshell, may be noticed as follows:-

4. The writ petitioner herein is a company registered under the Companies Act, 1956. The petitioner company had purchased a plot of land measuring 8 Bighas 17 Lechas in Jorhat Town within the Jorhat Municipal Board area, which is situated contiguous to the land and building identified as ‘Jorhat-Lichubari Army Camp”. The petitioner company had applied for ‘NOC’ from the Jorhat Development Authority for construction of a multistoried building for setting up a multi-specialty hospital and on consideration of such application made by the petitioner, the respondent no. 3 had also granted ‘NOC’ vide building permission dated 04/03/2022. Thereafter, the petitioner had commenced construction work and a boundary wall was also constructed. The construction of the multistoried building, was for the purpose of running a super specialty hospital in the name and style “M/s. Aditya Diagnostic and Hospital”. However, when the construction of the building was under progress, the respondent no. 5 had written a letter dated 06/06/2022 to the respondent no. 3 with a request to cancel the ‘NOC’ by stating that the request for issuance of ‘NOC’ made to it by the writ petitioner had been rejected. Acting on the basis of the letter dated 06/06/2022 issued by the Army Authorities, the impugned order dated 08/06/2022 has been issued by the respondent no. 3 suspending the ‘NOC’.

5. By referring to the materials available on record, Mr. Sahewalla, learned senior counsel for the petitioner submits that the petitioner company is seeking to raise permanent construction over its own land. As per the guidelines issued by the Ministry of Defence on 18/05/2011, it was laid down that for any construction coming up within 100 meters of a defence installation/establishment and 500 mtrs. in case of building more than 4 stories, the ‘NOC’ from the Station Commander would be required as the same might pose security hazard to such defence installation. However, subsequently submits Mr. Sahewalla, the notification dated 18/05/2011 has been modified by the notification dated 21/10/2016 issued by the Government of India, Ministry of Defence, whereby, the radius of such restriction in construction has been reduced to 10 mtrs. from the outer wall of such defence installation/establishment.

6. By referring to the documents available on record, Mr. Sahewalla further submits that the construction of the multistoried building raised by the petitioner company is at-least 70 mtrs. away from the defence installation and, therefore, under the existing circular dated 21/10/2016, there was no necessity for the writ petitioner to obtain any NOC from the respondent nos. 4 and 5. Laying heavy emphasis on clause 2(a) of the notification dated 21/10/2016, Mr. Sahewalla submits that the impugned order dated 08/06/2022 is wholly arbitrary and illegal and hence, liable to be set-aside by the Court. It is also the submission of Mr. Sahewalla that the Air Force has already granted ‘NOC’ to the petitioner and therefore, there was no justifiable ground for the respondent nos. 4 and 5 to raise such objection, more so, since there are no windows in the building of the respondents towards the side of the construction raised by the writ petitioner.

7. The learned senior counsel for the petitioner has also submitted that the respondent nos. 4 and 5 had earlier approached the Court of learned Civ