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2024 Supreme(Online)(Bom) 7994
HIGH COURT OF BOMBAY
Bharati Dangre, Abhay J. Mantri, JJ
Station HQ Kamptee – Appellant
Versus
Nagpur Municipal Corporation – Respondent
WRIT PETITION NO. 5172 OF 2024
For the Appellants/Petitioners: Ms.Mugdha Chandurkar
For the Respondents: Mr.Surendra Mishra, Mr.Deven Chavan, Shri Sunil V Manohar, Shri Atharv S. Manohar
Executive guidelines issued without legislative backing do not constitute 'law' and cannot infringe upon the constitutional right to property. Restrictions on land use must follow the procedure established by a valid legislative enactment and cannot be imposed through mere administrative fiat.
Headnote:(A) Works of Defence Act, 1903 - Constitutional Law - Article 77(1) - Article 300A - Right to property - Executive circulars and guidelines concerning security restrictions near defence establishments lack statutory force unless issued in the name of the Head of State - Such administrative instructions cannot curtail the constitutional right to property without following the procedure prescribed by a valid legislative enactment - An executive fiat cannot substitute for a notification issued under the prevailing statutory framework. (Paras 36, 48)
(B) Development Control Regulations - Construction permissions - Requirement of 'No Objection Certificate' (NOC) from military authorities - In absence of a specific statutory notification under the relevant Defence Act restricting land use, a local planning authority is not empowered to insist upon an NOC from such authorities merely based on administrative guidelines - Right to property cannot be restricted by executive circulars that do not possess the force of law. (Paras 40, 49)
(C) Appellate Jurisdiction - Judicial review - A court should not interfere with construction approvals once the project has been completed and occupied based on belated challenges derived from non-statutory guidelines, unless specific illegality or perversity is demonstrated. (Paras 43, 46)
Facts of the case:
A government entity sought to restrain a developer from completing a high-rise building situated in the vicinity of a military establishment, citing security concerns and the absence of a 'No Objection Certificate' as purportedly required by several administrative circulars. The developer argued that all necessary municipal permissions and safety clearances had been obtained. By the time the petition reached the final hearing stage, the construction was complete and an occupation certificate had been issued.
Findings of Court:
The court held that the guidelines issued by the Ministry of Defence are executive instructions and not statutory law. Following precedent that such guidelines are not issued in the name of the President, the court declared they do not confer the power to prohibit construction or order demolition. Restrictions on land use must be imposed through the specific procedure defined under the governing statute, which was not followed in this case. The court further noted that the petition was belated and the building was already occupied, making the requested relief of demolition unreasonable and without merit.
Issues: Whether administrative guidelines issued by a department can impose mandatory restrictions on land use and require an NOC without a corresponding statutory notification, and whether a court should direct the demolition of a fully occupied building based on executive instructions.
Ratio Decidendi: Executive circulars cannot override statutory law or curtail constitutional property rights. In the absence of a notification issued under the procedure of the primary Act, an administrative guideline lacks the force of law required to restrict the use and enjoyment of private property. Consequently, the planning authority's decision to grant permissions without a military NOC was consistent with the law.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. initiation of writ petition for demolition of high-rise near defence land. (Para 1 , 2 , 3 , 4 , 5) |
| 2. reliance on work of defence act (woda) and prior correspondence regarding permissions. (Para 6 , 7 , 8 , 9) |
| 3. chronological evolution of ministry of defence noc guidelines and policy changes. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 4. applicability of specific mod guidelines to construction permits at relevant timeframes. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32) |
| 5. impact of previous court rulings on the validity of defence department circulars. (Para 33 , 34 , 35 , 36 , 37) |
| 6. assessment of petitioner's late objection and reasonableness of security hazard claims. (Para 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46) |
| 7. limits of executive fiat: importance of statutory authority over non-statutory circulars. (Para 47 , 48 , 49 , 50) |
JUDGMENT (Per Bharati Dangre, J):-
1. The present petition is filed by the Station HQ, Kamptee, through its Station Commander, seeking issuance of writ of mandamus or any other appropriate writ, order or direction against the respondents and in specific, the respondent no.3, M/s.Kukreja Infrastructure, to forthwith stop the construction of its building on plot no.2, Kh. No.178/1 Mouza Sitabuldi, bearing Corporation House No.7, City Survey No. 1704, Circle 21, Ward No.39, Commercial Road, Civil Lines, Nagpur, as it is being constructed without a ‘No Objection Certificate’ (NOC) from the petitioner, since the upcoming construction is situated near to the periphery wall of its Establishment, which is a Defence Establishment.
In addition to the primary relief, direction is also sought to the Nagpur Municipal Corporation, respondent no.1, not to grant any Development/ Building permissions, completion certificate or occupancy certificate to the building of respondent no.3 in respect of the aforesaid construction.
Another prayer in the petition is a direction against the respondents to forthwith vacate/demolish the building or in the alternative, reduce its height to 8 storey, as per the shadow shield clause incorporated in the NOC Guidelines, 2011 along with its amendment dated 17/11/2015, since according to the petitioner, the upcoming structure is detrimental to the Security of Defence Establishment, which is one of the vital defence establishments of Indian Army.
2. Upon the notice being issued in the aforesaid petition on 10/9/2024, on 24/9/2024, Mr.Sunil Manohar, the learned Senior counsel marked his presence on part of respondent no.2 and raised a preliminary objection about maintainability of the petition, by submitting that the construction of the subject building is over long back and on receipt of the occupation certificate on 25/8/2023, the building is already occupied and also on the ground that the guidelines/circulars on the basis of which the relief is sought by the petitioner, do not apply to the building constructed by the respondent no.3.
We permitted affidavit in reply to be filed by respondent no.3 before the date of our next hearing.
Upon the pleadings being completed as the petitioner also filed rejoinder, we directed listing of the Writ Petition for hearing.
3. We have heard Ms.Mugdha Chandurkar, the learned counsel for the petitioner, Mr.Surendra Mishra, Senior counsel for the Nagpur Municipal Corporation, Mr.Deven Chavan, Senior Advocate and Government Pleader for the Collector/District Magistrate i.e. respondent no.2 and Mr.Sunil Manohar, learned Senior counsel representing respondent no.3.
In the wake of the pleadings being completed, since the respective counsels agreed for hearing of the petition finally, we issue ‘Rule’ , which is made returnable forthwith.
By consent of the parties, petition is taken up for final hearing.
4. The petitioner, Station H.Q. Kamptee is the head of the area of jurisdiction of Kamptee and Nagpur, and is aggrieved by the act on part of the respondents in carrying out construction of ‘Kukreja Inf
