Gorakhnath Shankar Nakhwa v. Municipal Corpn. of Greater Mumbai, 2022 SCC OnLine Bom 6703

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2022 SCC OnLine Bom 6703 : (2023) 3 AIR Bom R 788
In the High Court of Bombay

(BEFORE R.D. DHANUKA AND KAMAL KHATA, JJ.)
Writ Petition No. 113 of 2019

Gorakhnath Shankar Nakhwa and Others …
Petitioners;
Versus
Municipal Commissioner of Municipal Corporation of
Greater Mumbai and Others … Respondents.
With
Interim Application No. 2270 of 2019
In
Shree Swami Samarth Co-op. Housing Society
(proposed), Through its authorized
representative Prakash Mahadev Nevalkar …
Applicants/Intervenors;
In the Matter of:
Gorakhnath Shankar Nakhwa and Others …
Petitioners;
Versus
Municipal Commissioner of Municipal Corporation of
Greater Mumbai and Others … Respondents.
Writ Petition No. 113 of 2019 and Interim Application No. 2270 of
2019
Decided on December 9, 2022, [Date of Reserve : 20th September,
2022]
Advocates who appeared in this case :
Mr. Pravin Samdani, Senior Counsel with Mr. Sujit Lahoti, Mr. Ziayad
Madon, Mr. Parth P. Shah i/b M/s. Sujit Lahoti And Associates for the
Petitioners.
Mr. Chinmay Acharya for the Applicant.
Ms. Purnima Kantharia with Ms. Sheetal Metakari i/b Mr. Sunil
Sonawane for MCGM - Respondent No. 1.
Mr. Anil Singh, ASG with Mr. Aditya Thakkar, Mr. Yogeshwar S.
Bhate, Ms. Savita Ganoo and Mr. Pavan Patil for the Respondent No. 2.
Mr. Abhay L. Patki, Additional Government Pleader for the State -
Respondent No. 3.
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Ms. Sayli Apte with Ms. Shreya Shah i/b Mr. P.G. Lad for MHADA -
Respondent No. 4.
Mr. Aseem Naphade with Ms. Shristi Shetty, Ms. Heena Shaikh and
Mr. Bhavesh Wadhwani i/b M/s. M.V. Kini & Co. for the Respondent No.
6.
The Judgment of the Court was delivered by
R.D. DHANUKA, J.:— By this petition filed under Article 226 of the
Constitution of India, the petitioners have prayed for a writ of certiorari
for quashing and setting aside the impugned orders dated 18th April,
2018 and 4th May, 2018 passed by the respondent no. 1 Corporation.
The petitioners have also prayed for a writ of mandamus against the
respondent no. 1 Corporation to issue a further/final commencement
certificate to the petitioners.
2. The petitioners have further prayed for a declaration that the
notification dated 28th July, 1987, guidelines dated 18th May, 2011, 18th
March, 2015, 17th November, 2015, and 21st October, 2016, letter
dated 27th February, 2020 and the internal note dated 9th August, 2017
are not applicable to the petitioners' project and for quashing thereof.
3. By consent of parties, the writ petition is heard finally at the
admission stage. Some of the relevant facts for the purpose of deciding
this petition are as under:—
4. On 28th July, 1987, the Government of Maharashtra issued a
notification declaring the area of Mazagaon Dock Ltd. including 200
meters of water front area, as a ‘prohibited place’ under sub-clauses (c)
and (d) of section 2(8) of the Official Secrets Act, 1923. It is the case
of the petitioners that sometime in the year 2009, the respondent no. 6
learnt of high rise construction of Bomanji Dhunjibhoy from a
newspaper article.
5. It is the case of the respondent no. 6 that on 26th February, 2009
it addressed a letter to the Municipal Commissioner opposing the
construction of Bomanji Dhunjibhoy's proposed project. On 30th
November, 2009 the respondent no. 6 addressed a letter to Bomanji
Dhunjibhoy Pvt. Ltd. intimating that the respondent no. 6 had no
authority to grant permission to any project not situated on the land
under its jurisdiction, but that the Mazagaon Dock lands has been
declared as Prohibited place under the Official Secrets Act, 1923.
6. It is the case of the petitioners that on 23rd December, 2009, the
respondent no. 6 addressed a letter to the said Bomanji Dhunjibhoy
Pvt. Ltd. intimating that its lands did not fall under the jurisdiction of
respondent no. 6. Sometime in the year 2011, the petitioner nos. 1 to 4
formed the petitioner no. 5 an LLP.
7. On 18th May, 2011, the respondent no. 2 issued guidelines. In
paragraph 1(b) of the said guidelines, requirement of NOC for building
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constructions within 100 meters of Defence Establishments (500

meters for multistorey buildings) where the local municipal laws did not
require any such NOC was imposed.
8. On 4th September, 2012, this Court passed an order in Writ
Petition No. 1000 of 2012 in relation to the property of Bomanji
Dhunjibhoy Pvt. Ltd. This Court held that prior notice to be given to the
respondent no. 6 before plans would be sanctioned by the Municipal
Corporation to permit them to file objections. In paragraph (11) of the
said order, this Court held that there was no adjudication on the
objections of the respondent no. 6 regarding the proposed
development. This Court made it clear that the respondent no. 6 may
pursue such remedies as may be available to it.
9. On 10th May, 2013, the petitioners obtained No Objection from the
respondent no. 4 for carrying out construction and redevelopment of
the property known as Laxmi Niwas situated at CS No. 220 and 221 of
Mazgaon division bearing Cess No. E/6914-15 situated at 13-15-17, 1st
Carpenter Street, Mazgaon, Mumbai - 400 010 (hereinafter referred to
as “the writ property”). The said project consists of ground plus 19
floors out of which 12 floors are meant for rehabilitation of the existing
tenants and the remaining for free sale. Third party rights have already
been created of the free sale area. The said project is under section 33
(7) of the DCR and contemplates housing 19 tenants on first 13 floors.
Reducing the height would make the project unviable and would
adversely affect the tenants as well as the third parties.
10. On 2nd June, 2014, the respondent no. 6 addressed a letter to
the respondent no. 1 opposing the construction of Bomanji
Dhunjibhoy's proposed project. On 18th March, 2015, the respondent
no. 2 issued guidelines amending the guidelines dated 18th May, 2011
by adding a proviso to paragraph 1(b) thereto to the effect that the
NOC from the Local Military Authority/Defence Establishment would not
be required in respect of construction for which permission had been
issued by the Local Military Authority prior to 18th May, 2011.
11. On 27th May, 2015, the respondent no. 1 issued Intimation of
Disapproval issued by the respondent no. 1 for the petitioners' project.
On 28th October, 2015 the respondent no. 6 addressed a letter to the
respondent no. 2 raising various objections regarding the said project of
the Bomanji Dhunjibhoy Pvt. Ltd.
12. On 17th November, 2015, the respondent no. 2 issued guidelines
amending the guidelines dated 18th May, 2011 by adding a second
proviso to paragraph 1(b) of the said guidelines dated 18th May, 2011
with respect to projects in the shadow of an existing building. On 18th
March, 2016, NOC was obtained by the petitioners from the
Maharashtra Coastal Zone Management Authority for construction of the
petitioners' project i.e. a building consisting of ground plus 19 floors.
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13. On 4th April, 2016, the respondent no. 1 issued a

commencement certificate for the said project of the petitioners valid
upto 3rd April, 2017. On 17th June, 2016, the respondent no. 4 issued a
revised No Objection Certificate.
14. On 21st October, 2016, the respondent no. 2 issued guidelines
amending the guidelines under the circulars dated 18th May 2011, 18th
March 2015 and 17th November 2015 by imposing a requirement of
obtaining a prior No Objection Certificate from the Local Military
Authority/Defence Establishment with respect to 193 stations listed at
Part A of the Annexure thereto. It is the case of the petitioners that the
premises of the respondent no. 6 did not feature in either part of the
annexure to the said guidelines.
15. On 1st February, 2017 the commencement certificate came to be
endorsed upto plinth level in the said project valid upto 31st January,
2018. On 22nd February, 2017, the commencement certificate came to
be endorsed upto the 10th floor valid upto 2nd April, 2017.
16. On 9th August, 2017 the Ministry of Defence issued a
communication stating that the respondent no. 6 being a Public Sector
Undertaking, was the Local Military Authority for its premises.
17. On 12th December, 2017, the respondent no. 6 addressed a
letter to the respondent no. 1 objecting to the petitioners' project and
forwarding certain documents in relation to the Bomanji Dhunjibhoy
Project. It is the case of the petitioners that the respondent no. 6
objected to the petitioners' project for the first time. On 16th January,
2018, the respondent no. 1 addressed a letter to the petitioners
requesting to file its explanation in response to the letter dated 12th
December, 2017 addressed by the respondent no. 6.
18. On 24th January, 2018, the Minister of Defence addressed a letter
to Mr. Narendra K. Sawaikar, Member of Parliament informing him that
in light of the prevailing security scenario, issuance of NOCs for
redevelopment of cessed buildings on the plot of Mazagaon Division,
Mumbai could not be considered at that stage.
19. On 31st January, 2018, the licensed surveyor of the petitioners
addressed a letter to the respondent no. 1 contending that none of the
papers/permissions issued so far mentions the requirement of NOC of
respondent no. 6. There was no mention in DCR 2034 that the
petitioners' plot falls in defence public sector undertaking. First 12
floors of the building were the rehab component and the petitioners are
paying heavy rent towards alternate accommodation. The said plot was
approximately 92.5 meters away from the plot of the respondent no. 6.
20. On 8th February, 2018, the Minister of Defence addressed a letter
to Mr. Shripad Naik, Minister of State (I/C), AYUSH informing him that
in the light of the prevailing security scenario, issuance of NOCs for
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redevelopment of cessed buildings on the plot of Mazagaon Division,

Mumbai could not be considered at that stage.
21. On 23/02/2018, the Ministry of Defence addressed a letter to
respondent No. 6 directing it not to issue any no objection certificate for
redevelopment of cessed buildings and to oppose approval of high-rise
buildings in the vicinity before the concerned authorities.
22. On 27/02/2018, respondent No. 1 addressed a letter to
respondent No. 6 informing it about the letter dated 31/01/2018
addressed by the petitioners' architects and that no buffer zone exists
for Mazagon Docks, as the same are available only to Defence areas
across Mumbai, as per directions of the Ministry of Defence. On
20/03/2018, the licenced surveyor/architect of the petitioners
addressed a letter to respondent No. 1 requesting for grant of the final
Commencement Certificate.
23. On 03/04/2018, the Executive Engineer (BP) City addressed an
internal letter to the Chief Engineer (DP) City, requesting for approval
for processing the further Commencement Certificate. On the said
letter, the Municipal Commissioner made a noting on 18/04/2018 to
‘stop work’. Respondent No. 1 issued the impugned order in accordance
with the noting of the Municipal Commissioner viz. to ensure whether
the vicinity of ‘Dock Establishment’ was mentioned in DP remarks or
any other document and to ask the architect not to proceed with further
work on site and also to examine the possibility of making the walls
facing the dock area as dead wall. On 04/05/2018, respondent No. 1
issued the impugned notice to the petitioners' architects, instructing
them not to proceed with any further work on site, till approval from
the competent authority was obtained with regard to the objection
raised by respondent No. 6.
24. On 09/05/2018, the Executive Engineer (BP) City addressed an
internal letter, requesting for the approval of the Chief Engineer (BP)
and the Municipal Commissioner for processing the file for further
Commencement Certificate by building dead walls and vision cutters
facing the Dock Yard. On the said internal letters, the Chief Engineer
(DP) made a noting on 14/05/2018 stating that respondent No. 6 has
now objected to the construction of the building; the Architect of the
petitioners has proposed building a dead wall and since there was no
deterrent provision in the DCR/SRDP/DP 2034, it is proposed to process
further Commencement Certificate as proposed by the Executive
Engineer.
25. On 23/05/2018, the Municipal Commissioner made a noting on
the said letter dated 09/05/2018 instructing to write back and ask
them under which provision, this restriction is being sought. It was
further directed that, it should be made clear that such haphazard
demands for restrictions would offer them up for facing allegations and
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also would have to face payment of compensation. Respondent No. 1

accordingly addressed a letter to respondent No. 6 on 31/05/2018
asking it to specify under which law and policy, it had sought such
restriction. In response to the said letter dated 31/05/2018, respondent
No. 6 responded on 06/06/2018.
26. On 24/07/2018, the Deputy Chief Engineer (BP) City addressed
a letter to the Municipal Commissioner and stated that respondent No.
6, by its letter in reply dated 06/06/2018, had placed reliance on the
letter dated 23/02/2018 issued by the Minister of Defence. Respondent
No. 6 in its letter did not mention any notification/policy/circular under
which this restriction is sought, nor did it mark any buffer zone. On
31/08/2018, the petitioners filed the present writ petition for various
reliefs.
27. On 24/07/2019, respondent No. 1 granted approval for a
Municipal Hospital located 90 meters away from the premises of
respondent No. 6. On 23/10/2019, respondent No. 1 issued an NOC for
the proposed Cancer Hospital located 90 meters from the premises of
respondent No. 6.
28. It is the case of the petitioners that the said proposed Hospital
premises would comprise of Ground plus 14 floors, with a height of
58.64 meters. The petitioners have placed reliance on the Scrutiny
Report of Amended Plans for the proposed Cancer Hospital. According
to the petitioners, the proposed hospital building would have an height
of 69.95 meters.
respondent No. 2 stating that it had examined the petitioners' proposal
to build a dead wall with a three meter parapet over the terrace, but
was not in possession of any Government Guidelines on the basis of
which, the proposal could be evaluated. It further noted that
respondent No. 2 had previously rejected a similar proposal made by
Bomanji Dhanjibhoy.
respondent No. 6 in reply to its letter dated 12/12/2019 enclosing
therewith copies of the Guidelines dated 18/05/2011, 18/03/2015 and
17/11/2015, which were applicable pan India, including Mumbai.
respondent No. 2 seeking clarifications on certain points, including
whether it was a Local Military Authority, and whether the Circulars
dated 18/05/2011, 18/03/2015, 17/11/2015 and 21/10/2016 were
applicable to it. It also requested respondent No. 2 to examine the
petitioners' proposal, as sought by this Court.
respondent No. 6, reiterating the direction issued on 23/02/2018 to
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oppose approval to high-rise building in the vicinity of the shipyard due

to security concerns. On 17/02/2020, respondent No. 2 addressed a
letter to respondent No. 6, requesting it to take action as per the
Guidelines dated 18/05/2011, 18/03/2015 and 17/11/2015 as
communicated vide letter dated 29/01/2020. On 09/03/2020, this
Court passed an order directing respondent No. 2 to examine the
petitioners' proposal on or before 26/03/2020.
respondent No. 6 stating that it had examined the proposal of the
petitioners submitted to it by respondent No. 6, but was unable to
consider the same due to the security scenario reported by security
agencies due to construction of high-rise buildings close to Defence
Public Sector Undertakings, as stated in the letters dated 23/02/2018
and 14/02/2020.
34. In the month of September, 2021, the petitioners amended the
writ petition (pursuant to order dated 31/08/2021) and challenged the
Notification dated 28/07/1987, the Guidelines dated 18/05/2011,
18/03/2015, 17/11/2015 and 21/10/2016 and Letter dated
17/02/2020 and the Internal Noting dated 09/08/2017.
35. Mr. Samdani, learned senior counsel for the petitioners invited
our attention to various exhibits annexed to the petition, various
averments made by his clients in the petition, the averments made by
the respondents in various affidavits and tendered a copy of the
compilation of judgments. He also tendered copies of the relevant
provisions of the Official Secrets Act, 1923, Work of Defence Act, 1903,
Google Map, Home Department (Special) Order dated 29/08/1986 and
Gazette Notification and Fax Message dated 17/11/2016 sent by Dinesh
K. Tripathi.
36. Learned senior counsel for the petitioners placed reliance on
Section 46 of the Maharashtra Regional Town Planning Act, 1966 (for
short “MRTP Act”) and submitted that the said provision does not put
any restriction under the Development Control Regulations (for short
“DCR”) or under the Development Plan (for short “DP”) of the nature
sought to be imposed by the impugned communication. The impugned
notice and the impugned stop work notice are without authority of law
and dehors the DP and the MRTP Act. The Municipal Corporation did not
impose a condition on the petitioners to obtain the NOC from
respondent No. 6 nor did it reject or impose conditions on development
permission on the basis of proposed revision in policy.
37. It is submitted by learned senior counsel that the tenants of the
building in existence, prior to the demolition of the said building, have
already vacated. The said building was thereafter demolished. The
petitioners have acted upon the conditions in various permissions and
received thereafter commenced construction. The construction has
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already been carried out upto 10th floor. The notice to stop work had
been issued by respondent No. 2 at the instance of respondent No. 6
due to security issue. He submitted that respondent No. 6 is a
Company registered under the Companies Act, 1956. The majority
shareholding of respondent No. 6 is held by the Government of India.
Respondent No. 6 is also carrying out its private work and cannot be
considered as Defence Establishment under the provisions of Work of
Defence Act.
38. It is submitted that in respect to the protection of defence land,
there is a Central Act, a legislation occupying the field viz. Work of
Defence Act, 1903. If any protection is required in respect of any
Defence Establishment, such restriction can be imposed on construction
in the vicinity of Defence Establishments, by issuing a notification
under the provisions of the Works of Defence Act. He submitted that no
notification has been issued in respect of respondent No. 6.
39. It is submitted that unless an action is taken in accordance with
the provisions of the Works of Defence Act, such action would be ultra
vires the Constitution and the Works of Defence Act. He submitted that
if a law requires a particular thing to be done in a particular manner, it
has to be done in the same manner or not at all. Consequently, an
action required under the said enactment in a particular manner,
cannot be substituted by an executive instruction or circular. The same
are, otherwise, violative of Articles 19(1)(g) and 19(6) and 300A of the
Constitution of India. He submitted that the shares of respondent No. 6
are listed on the Stock Exchange and even if the Government of India is
a majority shareholder, that does not make respondent No. 6 to be a
Defence Establishment. It is submitted that for respondent no. 6 to be
a defence establishment, a requisite notification under WOD Act was
required to be issued.
40. It is submitted by the learned senior counsel that reliance placed
by the respondents on the notification dated 28/07/1987 under the
Official Secrets Act is completely misplaced. There is no power for
imposition of any kind of restriction on the construction activities in the
vicinity of the undertaking of respondent No. 6. The said notification
has not been published in the gazette and is not in accordance with the
Official Secrets Act and is thus ultra vires the same.
41. It is submitted by the learned senior counsel that the impugned
notices, the stop work notices and the circulars are in the nature of
executive instructions. Articles 19(1)(g) and 19(6) of the Constitution
do not permit the executive instructions to take the place of law. He
submitted that the right to an immoveable property has a bundle of
rights within it. Right to develop, right to construct and right to exploit
the full potential, be it a development and construction, are part of the
bundle of purported rights in a property.
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42. It is submitted that any deprivation or interference with, or

restriction or imposition of any fetter on any of the rights mentioned
therein, in the absence of law, would be violative of Article 300A of the
Constitution of India. He submitted that the rights of the petitioners to
property are interfered with, impacted and sought to be taken away by
the respondents. It is submitted by learned senior counsel that the
petitioners have already obtained all prior sanctions and permissions as
required by respondent No. 1 and on the basis of which, the petitioners
were permitted to commence construction and have constructed 10
floors.
43. It is submitted by the learned senior counsel for the petitioners
that the action on the part of the Municipal Commissioner are clearly
discriminatory. The respondents have already permitted a tall hospital
building to come up, consisting of Ground plus 17 floors, with a height
of 69.95 meters whereas, the construction of the petitioners is
comprising of Ground plus 19 floors with a height of 59.50 meters only.
The respondents have, therefore, treated the petitioners differently and
thus, the action on the part of the respondents is discriminatory and
violative of Article 14 of the Constitution of India.
44. It is submitted that the respondents have not taken any defence
under the provisions of the Works of Defence Act. The building
constructed by the petitioners is not on the front side. Learned senior
counsel placed reliance on the definition of the term ‘munitions of war’
under Section 2(5) and the term ‘prohibited place’ under Section 2(8)
of the Official Secrets Act. He submitted that the stop work notice could
not have been issued by the Municipal Corporation under Section 2(8)
(c) and (d) of the Official Secrets Act.
45. Learned senior counsel for the petitioners placed reliance on the
Guidelines dated 18/05/2011 issued by the Ministry of Defence
recommending amendment to the provisions of Works of Defence Act.
He submitted that there is no amendment carried out by the Central
Government in the Works of Defence Act, as per the said
recommendation, till date.
46. It is submitted that so far as the Guidelines dated 18/03/2015
are concerned, the Developer is not required to obtain any permission,
if the permission is already granted prior to 18/05/2011. Respondent
No. 6 is not identified either under part 1(a) or part 1(b) of the Circular.
The respondents have not produced any notified gazette, till date. He
submitted that even if such notification is in existence, there is no
power to impose any restriction or bar in carrying out construction in
the vicinity.
47. It is submitted that the plot of the petitioners is outside the
boundary indicated by the respondents. Learned senior counsel for the
petitioners placed reliance on the definition of the term ‘land’ under
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Section 2(a), definition of the term ‘person interested’ under Section 2

(b), definition of the term ‘Central Officer Commanding the District’
under Section 2(d) and definition of the term ‘Commanding Officer’
under Section 2(e) of the Works of Defence Act.
Sections 6 and 7 of the Works of Defence Act and submitted that even
if any further powers are required to be exercised by the Ministry of
Defence, the same can be done only after publication. If any right of a
party is interfered, such party becomes entitled to claim compensation.
No notification under Section 3(2) of the Works of Defence Act is issued
by the Central Government in respect of any land within the vicinity of
respondent No. 6. He submitted that the Local Military Authority is
nominated by the Central Government only on 09/08/2017.
49. In his alternate argument, he submitted that the Circulars of
2017, 2018 and 2019 are not applicable to respondent No. 6 till
09/08/2017 and consequently, can be applied only with prospective
effect. The petitioners were already granted IOD on 27/05/2015 and
the Commencement Certificate on 04/08/2015.
50. The respondents, in the absence of any provision in the
Development Plan or Development Control Regulation, cannot restrict
the construction of the petitioners on the basis of the letter of
respondent No. 6. The Central Government thus could not have issued
any stop work notice. He submitted that no executive instructions could
be issued under Article 73 or 162 of the Constitution.
51. It is submitted that the right to property of a citizen of India is a
valuable Constitutional right under Article 300A of the Constitution
though is not a fundamental right. Under Article 300A of the
Constitution, no person can be deprived of property save and except
expressly provided in the said Article.
52. Learned senior counsel relied upon the following judgments in
support of the aforesaid contentions:
(a) F.B. Taraporawala v. Bayer India Limited(1996) 6 SCC 58
(b) B.K. Ravichandra v. Union of India, 2020 SCC OnLine SC 950
(c) Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC 228
53. Mr. Anil Singh, learned A.S.G. for respondent No. 2 submitted
that respondent No. 6 is a Defence Establishment/Local Military
Authority and its protection is in national interest. Respondent No. 6 is
a refinery. Security of Defence Establishment is a paramount
consideration. The Defence Authority is an expert to decide the security
of the nation. There are terrorist attacks increasing day by day. Merely
because inconvenience may be caused to the citizen/individual
developer, such inconvenience cannot be considered as against the
national interest. The provisions of the MRTP Act and DCR permit the
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Authorities to consider the security aspect. The preference has to be

given to the public interest as against the private interest.
54. It is submitted by the learned A.S.G. that admittedly there is no
challenge to the provisions of MRTP Act or DCR, 1991 in this petition.
The Planning Authority is obligated to consider the ‘security’ and ‘public
interest’ under the provisions of the MRTP Act and DC Regulations. It is
the mandatory duty of the Planning Authority to insist for NOC of
Defence Establishment, while considering proposal for building
permissions.
55. The impugned notifications, guidelines and communications are
issued to protect the national interest and security of the Defence
Establishment and do not violate any fundamental rights of the
petitioners or any rights under Article 300A of the Constitution. The
NOC required to be obtained by the petitioners from respondent No. 2
before carrying out construction is the requirement of law and the
petitioners cannot seek to develop a property without complying with
the law.
56. It is submitted that respondent No. 6 has always been treated
by respondent No. 2 as a Local Military Authority. Respondent No. 6 has
expressed and clarified in various correspondence that the construction
of high-rise buildings close to the Defence Public Sector Undertakings
will adversely impact the effective surveillance and security of these
installations, in view of the reports of the security agencies. Respondent
No. 6 has already been declared as a ‘prohibited place’ under
Notification dated 28/07/1987 issued by Government of Maharashtra
under the provisions of Official Secrets Act, 1923.
57. It is submitted that owing to the threat faced by respondent No.
6 and the nature of work carried out by it, it is imperative to protect the
premises of respondent No. 6 in public/national interest. Any
construction taking place in the vicinity of respondent No. 6 may pose a
threat to the security of respondent No. 6. It would be necessary for
respondent No. 1 to seek an NOC from respondent No. 6.
58. It is submitted that respondent No. 6 has already objected to
the construction put up by the petitioners on 12/12/2017. Respondent
No. 1 has failed in its duty in securing NOC from respondent No. 6 prior
to approving the plans of the petitioners.
59. It is submitted that the Ministry of Defence has already clarified
by its letter dated 17/02/2020 in response to the letter dated
13/02/2020 from respondent No. 6 that respondent No. 6 is a Local
Military Authority. The impugned guidelines are thus applicable to
respondent No. 6, being a Local Military Authority. The internal note
dated 09/08/2017 clarifies the same. He submitted that the Local
Military Authority other than the 342 Army Establishments mentioned
in guideline dated 21/10/2016 are covered by the impugned
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guidelines.
60. Learned A.S.G. placed reliance on Section 46 of the MRTP Act
and Regulation 16(n) of the Development Control Regulations, 1991.
He submitted that Section 46 of the MRTP Act assumes that the
Planning Authority, while considering an application for permission shall
have due regard to the provisions of any draft or final plan. It does not
prescribe that the Planning Authority must only consider the draft or
final plan and nothing else. He submits that Regulation 16(n) of the
Development Control Regulations 1991 prescribes that the land shall
not be permitted to be developed, if the same is against public interest.
61. It is submitted by learned A.S.G. that there are no specific
grounds raised impugning or asserting a challenge to each guideline
separately or even addressing the clauses within the guidelines and as
to how they affect the fundamental rights of the petitioners. The
petitioners have not pointed out any specific case of violation in the
entire petition. He submitted that since the petitioners have not
challenged the provisions of the MRTP Act and the DCR, 1991, NOC of
the Defence Establishment is necessary. It is the mandatory duty of the
Planning Authority to insist for NOC of the Defence Establishment while
considering proposal for building permission. He submitted that the
challenge to the guidelines is academic since NOC is the requirement of
the law and the petitioners cannot seek to develop a property, without
complying with the law.
62. It is submitted that the impugned guidelines dated 18/05/2011,
18/03/2015, 17/11/2015 and 21/10/2016 are mere guidelines to guide
the Defence Establishment to deal with the issue of NOC, when they are
approached for the same by the Planning Authority. No fundamental
rights of the petitioners under Article 19(1) (g) of the Constitution have
been violated. The executive circulars/instructions can be issued to
protect the national interest/security interest of India.
63. It is submitted that the purpose and object of the impugned
guidelines dated 18/05/2011 is to strike a balance between the security
concerns of the forces and the right of the public to undertake the
construction activities on their land. The restriction to construct on the
land is placed primarily by the Planning Laws i.e. the MRTP Act and
Development Control Regulations.
64. It is submitted by learned A.S.G. that the impugned
notifications/guidelines and communications are issued to restrict the
construction of the building, which is higher than four floors. There is
no bar on construction activity, per se. The restriction is on the height
of the structure. No fundamental rights of the petitioners are being
violated as sought to be canvassed by the petitioners.
65. It is submitted that Article 19(1)(g) of the Constitution
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guarantees to a citizen the right to practice any profession or to carry

on any occupation, trade or business, which is subject to Article 19(6)
of the Constitution. Clause (6) of Article 19(1) is intended to strike a
balance between individual freedom and public interest.
66. It is submitted that reasonable restrictions are imposed by the
impugned guidelines in respect of construction activity in the vicinity of
Defence Establishment, including respondent No. 6 in order to protect
the national interest of India. The petitioners thus cannot contend that
there is any violation of fundamental rights under Article 19(1)(g) or 19
(6) of the Constitution of India. Learned A.S.G placed reliance on
Articles 53, 73 and 77 and 246 and 300A of the Constitution.
67. It is submitted by learned A.S.G. that the Works of Defence Act,
1903 is not the sole repository for regulating construction activity in the
vicinity of Defence Establishment. The said Act is enacted to provide for
imposing restrictions upon the use and enjoyment of land in the vicinity
of works of defence in order that such land may be kept free from
buildings and other obstructions and for determining the amount of
compensation to be made on account of such imposition. He relied
upon Section 3 of the Works of Defence Act and submitted that the
declaration under the said provision is one of the legislations, under
which restrictions can be imposed upon the use and enjoyment of land
in the vicinity of any work of defence or of any site intended to be used
or to be acquired for any such work, in order that such land may be
kept free from buildings and other obstructions. He submitted that the
absence of the declaration under Section 3 of the Works of Defence Act
does not disentitle respondent No. 6 from insisting that their NOC must
be obtained for any construction activity which poses a security threat
to India or its Defence Establishments.
68. It is submitted that the action of respondent No. 2 insisting
upon an NOC from respondent No. 6 and issuance of communications
impugned in the present petition are in consonance with Section 46 of
the MRTP Act and Regulation 16(n) of the Development Control
Regulations and the same are not ultra vires the Constitution of India.
It is submitted that it is the mandatory duty of the Municipal
Corporation to seek NOC from respondent No. 6 in view of the security
threat faced by respondent No. 6.
69. It is submitted that respondent No. 1 has failed in its duty in
seeking an NOC from respondent No. 6 prior to approving the plans of
the petitioners. In any event, such failure ought not to enure to the
benefit of the petitioners and jeopardize the security interest of India.
He also placed reliance on the judgment of this Court in the case of
Union of India through the Indian Army v. State of Maharashtra through
the Urban Development Department (“Adarsh Case”) 2016 SCC OnLine
Bom 2570.
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70. It is submitted that this Court while exercising writ jurisdiction,

cannot be expected to adjudicate the issue of security interest. Safety
and security of respondent No. 6 is a paramount importance and is an
issue of safety and security of the nation. The Defence Establishment,
such as respondent No. 6, is an expert in the field of safety and security
of the nation and its opinion as to the threat on the safety and security
of the installation cannot be challenged except on the grounds of
manifest arbitrariness. The petitioners have not produced any material
nor have raised any such ground in the writ petition.
71. Learned A.S.G. invited our attention to the internal note dated
09/08/2017 and submitted that even in the internal note annexed by
the petitioners in the writ petition, it is clearly stated that respondent
No. 6 Mazagaon Dock Limited, Mumbai, is a Defence Public Sector
Undertaking dealing with construction of warships and submarines and
warships for Indian Navy.
72. It is submitted by learned A.S.G. that under the provisions of
Official Secrets Act, 1923, there is no power for imposition of any kind
of restriction on the construction activities in the vicinity of the
undertaking of respondent No. 6.
73. Respondent No. 6 is India's leading Defence Public Sector
Undertaking Shipyard under the aegis of respondent No. 2. After
respondent No. 2 has taken over respondent No. 6 in 1960, respondent
No. 6 has become the leading manufacturer of submarines and
warships for Indian Navy. It is submitted by learned A.S.G. that the
functions of respondent No. 6 includes and/or not limited to (a)
construction of stealth warships for Indian Navy and Coast Guard, (b)
construction of warships for Indian Navy and (c) construction of
submarines for Indian Navy. These activities are undertaken by
respondent No. 6 by laying out sketches and model of the said
warship/submarines. Such activities are highly secretive and sensitive
to the security/sovereignty and integrity of India. Respondent No. 3 has
accordingly exercised powers under Section 2(8)(c) and (d) of the
Official Secrets Act and notified respondent No. 6 as a prohibited place.
74. It is submitted that considering the nature of work carried out
by respondent No. 6, it is imperative to ensure that there is no
recording, photography, publishing of any sketch/model or note of any
warship/submarines, which may be more than useful to any enemy and
disclosure likely to affect the sovereignty and integrity of India. The
notification dated 28/07/1987 thus came to be issued.
75. It is submitted that since the work of respondent No. 6 bears
national security implications, the construction proposed by the
petitioners cannot be permitted at the cost of national security. The
construction proposed by the petitioners is likely to be misused for
spying over the property of respondent No. 6, which is an offence under
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the provisions of the Official Secrets Act. He submitted that to protect

the national security interest, it is necessary that the construction,
which can aid spying over a prohibited place, cannot be permitted.
76. Insofar as the submission of learned senior counsel for the
petitioners that the action on the part of the Municipal Corporation and
respondent No. 6 in opposing the construction carried out by the
petitioners is discriminatory in nature, is concerned, learned A.S.G.
submitted that there is no concept of negative equality. Security
interest is required to be considered on a case to case basis. It is
submitted that the power under Article 226 of the Constitution of India
is discretionary and ought to be exercised only in furtherance of
interests of justice and not merely on the making out of a legal point.
77. It is submitted by learned A.S.G. that the impugned Guidelines,
2011 are in force since 18/05/2011. The permission was obtained by
the petitioners for carrying out construction in 2013. This Court in the
case of Adarsh Case (supra) had rejected the argument of the
petitioners that the construction was already started prior to issuance of
the Guidelines.
78. It is submitted by learned A.S.G. that merely because some
permission was granted to run a hospital in the same vicinity, the same
cannot be a ground to grant permission to the petitioners. The building
plan was submitted by the said hospital in the year 2019. He submits
that the security threats are to be considered day-to-day and those
previous permissions granted by the Municipal Corporation or by
respondent No. 2 cannot be the basis for grant of permission in every
case. It is submitted that the enemy of this country target certain
establishments to destroy the peace. Respondent No. 2 is not against a
particular builder.
79. Mr. Singh, learned A.S.G. submitted that the petitioners had
made a representation to respondent No. 6 dated 30/12/2019, which
was forwarded by respondent No. 6 to respondent No. 3. Respondent
No. 2 has already rejected the said representation made by the
petitioners, vide letter dated 19/03/2020. The petitioners have not
challenged the said rejection of the representation by letter dated
19/03/2020. There is gross delay on the part of the petitioners in filing
this petition. The writ petition is liable to be dismissed on this ground
also. He relied upon the definition of ‘Naval Establishment’ under
Section 3(12)(A) of the Navy Act.
80. Learned A.S.G. relied upon the following judgments and
submitted that each and every grounds raised by the petitioners are
already negatived by this Court or the Supreme Court with identical
facts in hand. The submissions made by the petitioners are contrary to
the principles laid down by this Court and the Supreme Court in those
judgments.
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(a) TCI Industries Limited v. Municipal Corporation of Greater

Bombay2011 SCC OnLine Bom 1671
(b) Hindustan Petroleum Corporation Limited v. Municipal
Corporation of Greater Mumbai, 2012 SCC OnLine Bom 560
(c) S.S.V. Developers v. Union of India, 2013 SCC OnLine Bom 1602
(d) The Union of India v. State of Maharashtra (Adarsh Case) 2016
SCC OnLine Bom 2570
(e) Sunbeam Enterprises v. The Municipal Corporation of Greater
Mumbai Judgment of Bombay High Court dated 21/06/2019 in
(f) Amrit Banaspati Co. Ltd. v. Union of India, (1995) 3 SCC 335 :
AIR 1995 SC 1340
(g) Akbar Travel of India (Pvt.) Ltd. v. Union of India Judgment of
Bombay High Court dated 10/06/2009 in Writ Petition (L) 656 OF
2009
(h) Narangs International Hotels Pvt. Ltd. v. Union of India, 2011
SCC OnLine Bom 727
(i) Oswal Agro Mills Limited v. Hindustan Petroleum Corpn. Ltd.,
(2014) 2 SCC 491
(j) Ravindra Mutenja v. Bhavan Corporation, 2003 SCC OnLine Bom
241 and
(k) Supertech Ltd. v. Emerald Court Owner Resident Welfare
Association, (2021) 10 SCC 1
81. Learned A.S.G. distinguished the judgments cited by Mr.
Samdani, learned senior counsel for the petitioners. He also tendered
additional note dealing with various contentions raised by the
petitioners. He relied upon Section 3 of the Navy Act.
82. Mr. Naphade learned counsel for respondent No. 6 adopted the
submissions made by Mr. Singh, learned A.S.G. for respondent No. 2
and made additional submissions. It is submitted by learned counsel
that respondent No. 6 is a Defence Public Sector Undertaking and a
leading manufacturer of warships and submarines for the Indian Navy.
The activities of respondent No. 6 are highly secretive and sensitive to
the security and sovereignty of the country. The premises of respondent
No. 6 are already declared as prohibited place vide Notification dated
28/07/1987. The Indian Navy under the aegis of the Ministry of
Defence carries out the construction of stealth warships and submarines
from the premises of respondent No. 6. Any recording, viewing and or
noting of these activities has the potential of being highly prejudicial to
the interest of the nation.
83. It is submitted by learned counsel that in this case, the building
of the petitioners is about 92.5 meters away from the premises of
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respondent No. 6. Respondent No. 1 thus should have consulted

respondent No. 6 before hand. The Ministry of Defence by letters dated
24/01/2018, 08/02/2018 and 23/02/2018 had directed that NOC for
redevelopment of cessed buildings near the premises of respondent No.
6 should be obtained from respondent No. 6. Respondent No. 6 had
raised similar concerns in respect of another project.
84. Learned counsel for respondent No. 6 placed reliance on the
order in the case of Saeed Shaikh v. MHADA, Order dated 14/09/2012
in Writ Petition No. 1000 of 2012 whereby this Court directed that
before the plans were sanctioned by the Municipal Corporation, a prior
notice be given to the competent authority of respondent No. 6, so as
to place objections, if any. He submitted that the Municipal Corporation,
in this case, has not given any prior notice to respondent No. 6 while
sanctioning the plan submitted by the petitioners for the said project.
He submitted that the plans submitted by the Municipal Corporation are
contrary to law laid down by this Court in Saeed Shaikh (supra).
85. Mr. Naphade, learned counsel for respondent No. 6 placed
reliance on the judgments, which were relied upon by learned A.S.G.
and submitted brief written submissions. He also placed reliance on the
judgment of the Supreme Court in Rai Sahib Ram Jawaya Kapur v.
State of Punjab, (1955) 2 SCR 225 and Kasturi Lal Lakshmi Reddy v.
State of Jammu & Kashmir, (1980) 4 SCC 1 in particular paragraph No.
14.
86. Learned counsel for respondent No. 6 relied upon Articles 73,
256 and 257 of the Constitution and submitted that executive
instructions can be issued where power to issue notification exists. He
submitted that though no notification under Section 3 of the Works of
Defence Act is issued, Guidelines can still be issued by the authorities.
He submitted that the offence of spying is quite possible in the facts of
this case, if the petitioners are allowed to carry out the balance
constructions or is even allowed to occupy the construction already
carried out so far. The impugned guidelines are already in existence
from 2011 and merely because no notification under the provisions of
the Works of Defence Act is issued, that does not mean that Guidelines,
which are in the nature of executive instructions cannot be issued.
87. It is submitted by learned senior counsel that respondent No. 6
had issued objections when the building was constructed upto 7th floor.
The Municipal Corporation, however, issued stop work notice after 19th
floor was constructed. He submitted that in pursuance of the interim
order passed by this Court on 04/02/2019, a report submitted by
respondent No. 2 has been kept in a sealed cover.
88. Ms. Kantharia, learned counsel for the Municipal Corporation
adopts the submissions made by learned A.S.G. and relied upon the
averments made by the Municipal Corporation.
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89. Mr. Samdani, learned senior counsel for the petitioners in

rejoinder to the arguments advanced by Mr. Naphade, learned counsel
for respondent No. 6 submitted that the Official Secrets Act does not
contain any power to delegate the power conferred on the authorities
under the said Act. Neither any notification is published nor gazetted
under the provisions of Works of Defence Act.
90. The structures of the petitioners are on the rear side and not
affected by the notification, though not published and gazetted. Article
19(1)(g) of the Constitution requires enactment of law and not
issuance of executive instructions. Similarly, Article 300A of the
Constitution also requires enactment of law and not executive
instructions. Learned senior counsel tendered additional note for
consideration of this Court.
91. It is submitted that there is an enactment under which the
expression ‘Defence Establishment’ is defined. The expression ‘Defence
Establishment’ is mentioned at several places in the Works of Defence
Act. He relied upon Section 3 of the Works of Defence Act and
submitted that if there is a notification issued in respect of the Defence
Property or the property intended to be used for Defence or intended to
be acquired for Defence, it can be defined as ‘Defence Establishment’
by a notification. Since there is no notification issued under Section 3 of
the Works of Defence Act, respondent No. 6 cannot be termed as
‘Defence Establishment’. He submitted that under the provisions of the
Official Secrets Act, ‘Defence Establishment’, is not defined, but it is
‘prohibited place’ which is defined. It is submitted that even if a
‘Defence Establishment’ is covered by issuance of a notification under
the Official Secrets Act, there will still not be any restriction on
construction in the vicinity, unless a notification under Section 3 read
with Sections 6 and 7 of the Works of Defence Act, is issued.
92. It is submitted that even as late as on 13/02/2020, respondent
No. 6 was clear that in this case, there was no Local Military
Establishment and that the guidelines do not apply. He submitted that
respondent No. 2 by referring to the internal note dated 07/08/2017
stated that respondent No. 6 has its own premises at Mazgaon and it is
a Public Sector Undertaking and is a Local Military Establishment for its
premises. There was no categorical assertion that respondent No.6 is a
Defence Establishment.
93. It is submitted by learned senior counsel that respondent No. 6
is not a ‘Defence Establishment’ also for the reason that no buffer zone
was provided as was required under the provisions of draft DCPR 2034,
then circulated.
94. It is submitted by learned senior counsel that right to property
does not mean only a moveable property, which has bundle of rights.
Even if a fraction of right is deprived, it violates the citizen's right to
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property under Article 300A of the Constitution. By virtue of respondent

No. 2 not allowing full development potential to the petitioners'
property, it amounted to deprivation of right to property, without
authority of law. Article 300A of the Constitution is a Constitutional
right and is now recognized as a human right under Article 21 of the
Constitution, which is a part of the fundamental right.
95. It is submitted by the learned senior counsel for the petitioners
that the ground of security threat and perception raised by respondent
Nos. 2 and 6 is required to be stated to be rejected. If an action of the
Union of India is under the authority of law, it can be defended on the
ground of security threat. In this case, there is no authority of law nor
any authorities have exercised under law or in accordance with existing
laws. He submitted that, since in the instant case, the authority
exercisable under law viz. Works of Defence Act has not exercised
under the law and respondent No. 6 is notified as ‘Defence
Establishment’, this Court is competent to go into the matter.
96. It is submitted that the property of the petitioners is not under
any reservation in the development plan. The Planning Authority is not
bound to acquire the said property.
97. It is submitted that though under Regulation 16 of the DCR
1991, public health and safety in the context of construction was
covered, the security of the Defence Establishment was never covered.
He submitted that in any event, “public interest” in relation to
Regulation 16(n) is discontinued under the DCPR 2034. It is submitted
that putting an embargo or restriction by issuing a stop work notice is
equal to acquiring the petitioners' property or the benefits thereto,
which is contrary to Article 300A and Article 19(1)(g) and Article 19(6)
of the Constitution of India and even contrary to the provisions of the
MRTP Act.
98. Learned senior counsel for the petitioners submitted a note to
distinguish the judgments relied upon by Mr. Singh, learned A.S.G. on
facts of this case.
99. Learned senior counsel for the petitioners relied upon additional
judgments along with the said additional note as under:
(a) Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422,
(b) S.N. Rao v. State of Maharashtra, (1988) 1 SCC 586,
(c) Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh,
(1982) 1 SCC 39,
(d) Hindustan Times v. State of U.P., (2003) 1 SCC 591,
(e) State of W.B. v. Sujit Kumar Rana, (2004) 4 SCC 129,
(f) Hari Krishna Mandir Trust v. State Maharashtra, (2020) 9 SCC
356,
(g) State of Bihar v. Project Unchcha Vidya, Sikshak Sangh, (2006) 2
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SCC 545,
(h) P.H. Paul Manoj Pandian v. P. Veldurai, (2011) 5 SCC 214,
(i) Association of International Schools & Principals Foundation v.
State of Maharashtra, (2010) 6 Mah LJ 816,
(j) Runwal Constructions v. Union of India, 2021 SCC OnLine Bom
668,
(k) Manohar Lal Sharma v. Union of India
(l) Sukh Datta Ratra v. State of Himachal Pradesh, (2022) 7 SCC
508,
(m) Pharmacy Council of India v. Rajeev College of Pharmacy, 2022
SCC OnLine SC 1224,
(n) Satwaratna Co-Operative Housing Society Limited v. Bharat
Petroleum Corporation Ltd. (Special Leave Petition (C) No. 3185 of
2022, dated 26th April, 2022 and
(o) Bharat Petroleum Corporation Ltd. v. Municipal Corporation of Gr.
Mumbai (Writ Petition no. 1515 of 2017, dated 25th April, 2019.
the judgments of the Supreme Court in the case of Satwaratna Co-
operative Housing Society Limited v. Bharat Petroleum Corporation
Limited Judgment dated 26/04/2022 in Civil Appeal No. 3185 of 2022
and submitted that the judgment of this Court in the case of Bharat
Petroleum Corporation Limited v. Municipal Corporation of Greater
Mumbai, Judgment dated 25/04/2019 in Writ Petition No. 1515 of 2017
which has been referred to and relied upon in the subsequent
judgments of this Court, which 2021 SCC OnLine SC 985, are pressed
into service by the respondents, has been set aside by the Supreme
Court in the said judgment in Civil Appeal No. 3185 of 2022.
101. Mr. Singh, learned A.S.G. distinguished the said judgment of
the Supreme Court in Satwaratna Co-op. Housing Society Limited
(supra) on the ground that the facts in the said matter before the
Supreme Court were totally different.
REASONS AND CONCLUSIONS:—
102. We shall first deal with the issue raised by the learned senior
counsel for the petitioners that the impugned notices are without
authority of law and de hors the development plan and the provisions of
the MRTP Act. It is vehemently urged by the learned senior counsel for
the petitioners that Section 46 of the MRTP does not impose any
restriction on the Development Control Regulation or on the
Development Plan.
103. The aforesaid issue raised by the petitioners has been dealt
with by a Division Bench of this Court at length in case of TCI
Industries Limited (supra). This Court held that under Section 46 of the
MRTP Act, the Planning Authority is required to examine the aspect of
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granting development permission in an appropriate manner and by

considering the relevant aspects. While granting development
permission, one of the things which the Planning Authority is required
to consider is to the provisions of the draft or final plan sanctioned
under the Act meaning thereby that if any provision in respect of
anything in the draft or final plan published by means of notice or same
is sanctioned under the Act, the Planning Authority cannot ignore the
same and it has to be taken into consideration.
104. This Court held in the said judgment that it is impossible to
accept the say of the petitioner therein that the Planning Authority
cannot consider any other thing except giving due regard to the
provisions of the draft or final plan as mentioned in Section 46 of the
MRTP Act. Section 46 of the MRTP Act cannot be given such a restricted
meaning and it cannot be said that under Section 46, the Planning
Authority cannot consider any other aspect such as security etc.
105. After rejecting the identical submission made by the petitioners
in that case, this Court held that it is the inherent duty of the planning
authority to apply its mind before giving development permission and
has to keep in mind the pros and cons of such development permission.
This Court gave an example in paragraph 18 of the said judgment that
if there is a fire brigade station or refinery or any sensitive object
located at the place nearby the area for which development permission
is sought, the planning authority cannot shut its eyes and blindly give
sanction only on the basis that, except what is provided in Section 46,
they are not required to call for any other information. Per contra, it is
the duty of the planning authority to call for such information otherwise
they will be failing in their duty. This Court rejected the contention of
the petitioners that the planning authority is not empowered to call for
any other information and to straightaway grant permission and is not
required to call for any other information except the one provided under
Section 46 of the MRTP Act or under the D.C. Regulations.
106. This Court in the said judgment thereafter held that no fault
can be found with the Corporation in insisting for NOC from the Defence
Department. This Court considered the D.C. Regulation 16 (n) and held
that the Planning Authority may refuse to grant permission for using
the land if the proposed development is likely to involve damage or to
have a deleterious impact on or is against the aesthetics or
environment or ecology and/or historical/architectural/aesthetical
building and precincts or is not in the public interest. This Court held
that public interest has wide connotation and if any particular
development activity is found to be not in public interest, in a given
case, the development authority can refuse such permission. The public
interest has to be read independently to the earlier part of the said
Regulation i.e. ecology, architectural aspects etc.
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107. This Court held that insistence on the part of the planning
authority for NOC from a particular department cannot be said to be de
hors the provisions of the Act and the Regulations. In our view, the
provisions of Section 46 of the MRTP Act has to be read with Regulation
16(n) of the D.C. Regulations and not in isolation. The submission of
the learned senior counsel for the petitioners that the impugned notices
are beyond the powers or the jurisdiction of the respondents or contrary
to the provisions of Section 46 of the MRTP Act is ex facie illegal and
contrary to the Section 46 of the MRTP Act read with Regulation 16(n)
of the D.C. Regulations and is accordingly rejected. It is also contrary to
the principles of law laid down by the Supreme Court in case of TCI
Industries Limited (supra).
108. We shall now consider the submission of the learned senior
counsel for the petitioners that since no notification under Section 3 of
the Works of Defence Act, 1903 (for short ‘WODA’) has been issued by
the Central Government regarding protection in respect of any defence
establishment, the action initiated by the respondents whether is ultra
virus the Constitution of India and WODA or action is violative of the
Articles 19(1)(g), 19(6) and 300A of the Constitution of India.
109. It is also vehemently urged by the learned senior counsel for
the petitioners that if a particular thing has to be done in a particular
manner prescribed under the Act, such action has to be conducted only
in such a manner as prescribed and no other manner. This Court in case
of TCI Industries Limited (supra) has dealt with this issue also at length
and has held that simply because no declaration under Section 3 of the
WODA is issued, it cannot be said that the defence was not entitled to
insist for their NOC. It is held that in Section 3 of the Act, it has no
relevancy so far as insistence of the planning authority regarding no
objection from the Defence Department is concerned. In a given case,
even if there is no notification under Section 3 of the Defence Act, the
planning authority can always insist for NOC from the Defence
Department, if the property is located just adjacent to the premises of
the petitioner. The planning authority nowhere figures in the picture
and the petition has been filed against the planning authority against
their insistence of NOC from the Defence Department in so far as
Section 3 of the WODA is concerned.
110. This Court held that under Section 3 of the WODA, even the
Central Government can acquire the property for national interest. In
that case, the defence had not thought it fit to issue such a declaration
but has tried to assert its right under the provisions of the MRTP Act
and the Development Control Regulations by which they have not
agreed to give NOC in view of the security reasons.
111. In the facts of this case also, no notification under Section 3 of
the WODA was issued by the Central Government in so far as the
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property in the vicinity of the property of the respondent no. 6 is

concerned and invoked the provisions of the MRTP Act and D.C.
Regulations and insisted for NOC of the respondents obtained by the
petitioners. We do not find any infirmity in the action taken by the
respondents in insisting its NOC or insistence on the part of the
Municipal Corporation to the petitioners to obtain NOC from the
respondents as contrary to Section 3 of the WODA or otherwise. The
security aspect can be considered while insistence for NOC from the
developers or from the owners for carrying out development in nearby
vicinity which would have the security threats irrespective of whether
the notification under Section 3 of the WODA has been issued by the
Central Government or not.
112. Similarly the submission of the learned senior counsel for the
petitioners that executive instructions could not have been issued in
absence of Notification under Section 3 of the WODA has no merit.
113. In our view, there is no substance in the submission of the
learned senior counsel for the petitioners that the circulars issued by
the Central Government are in the nature of executive instructions or
are in violation of Article 19(1)(g) or Article 19(6) of the Constitution of
India. The petitioners have placed reliance on Articles 73 and 162 of
the Constitution of India in support of the submission that the circulars
are in the nature of executive instruction. In our view, the guidelines
issued by the Central Government are to guide the Defence
establishment to deal with the issue of NOC when approached by the
Planning Authority. There is no violation of fundamental rights of the
petitioners.
114. The purpose and object is to strike the balance. Restriction on
construction activities is primarily part of the planning laws i.e. MRTP
Act and D.C. Regulation. The guidelines issued by the Central
Government are to restrict the construction activities higher than 4th
floor. A perusal of guidelines clearly indicates that there is no complete
bar on the construction. No fundamental rights of the petitioners are
thus violated. Be that as it may, the fundamental rights claimed by the
petitioners under Article 19(1) (g) are subject to the restrictions under
Article 19(6) of the Constitution of India.
115. In so far as the submission of the learned senior counsel for the
petitioners that the impugned action is also in violation of Article 300A
of the Constitution of India is concerned, this aspect has been dealt
with by this Court in case of TCI Industries Limited (supra) and has
held that simply because, the construction activity is not permitted, it
cannot be said that such action is violative of Article 300A of the
Constitution of India. This Court held that under D.C. Regulation 16, no
development activity is permissible in certain eventuality which
includes public interest also. The validity of Section 16 has not been
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challenged by the petitioners. This Court accordingly held that the

Corporation had acted within its authority and it could not be said that
the petitioner is deprived of its property without any authority of law.
This Court also rejected the argument that the security aspect which
was pressed into service by Navy was a bogey or imaginary one, as
appropriate material has been placed on record to buttress the stand of
the Navy. There is thus no substance in this submission made by the
leaned senior counsel for the petitioners.
116. This Court in case of Hindustan Petroleum Corporation Ltd.
(HPCL) (supra) allowed a writ petition filed by HPCL impugning the
approval and permission granted by some of the authorities in favour of
the developers in the vicinity of the petitioner therein on the ground of
security reason. This Court, after adverting to various judgments of the
Supreme Court and this Court, held that even if the relaxation in
respect of the dimensions in case of hardship, can be granted by the
Municipal Commissioner, Municipal Commissioner is prohibited from
granting such relaxations if such relaxation affects health, safety, fire
safety, structural safety and public safety of the inhabitants of the
building and the neighbourhood.
117. This Court categorically rejected the submission made by the
developers that the security aspect should not have been considered at
all by the Municipal Commissioner while sanctioning the plan for
development or while permitting the change of user under any of the
provisions of the D.C. Regulations or Mumbai Municipal Corporation Act
or Maharashtra Regional Town Planning Act. This Court held that it is
not only the power but also duty of the Municipal Commissioner to
consider the security aspect in public interest before granting
permission to develop any land as well as permitting change of user
from one zone to another zone. This Court considered the Regulation 16
(a), (e), (n) read with Regulation 64(b) read with section 46 of the
M.R.T.P. Act while rejecting the submission of the developers that there
was no enabling provision under the present D.C. Regulations or any
other provisions to consider security and health aspect before
sanctioning the plan or before permitting change of user by the
Municipal Commissioner.
118. This Court after adverting to the judgment in case of TCI
Industries Limited (supra) held that the security and health aspect in
respect of public at large is a part of planning which the authorities
ought to have considered as a mandatory duty before sanctioning any
plan or permitting development or before permitting change of user. It
is held that security as well as health aspects are crucial and are of
equal concern and are of fundamental necessity that the Planning
Authorities, the Government and the Public bodies, who are entrusted
with the task of deciding on the location of residential areas, must be
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alive to these very real and basic necessities at all times. The Court
cannot permit any compromise or leniency on these issues by public
body or even individuals. This Court also rejected the arguments in that
matter that the action on the part of the petitioner therein was in
violation of Article 300A of the Constitution of India.
119. The Supreme Court has rejected the Special Leave Petition
(SLP) converted into civil appeal arising out of the said judgment of this
Court in case of Hindustan Petroleum Corporation Ltd. (supra). The
Supreme Court in case of Oswal Agro Mills Limited (supra), after
considering the provisions of Regulations 16(a), (e) and (n) and various
other provisions, held that this power is coupled with the duty to give
paramount importance to safety. In our view, the submissions
advanced by the learned senior counsel for the petitioners are contrary
to the principles of law laid down by the Supreme Court in case of
Oswal Agro Mills Limited (supra).
120. Division bench of this Court in case of S.S.V. Developers
(supra) has followed the principles of law laid down by this Court in
case of TCI Industries Limited (supra). This Court rejected the
submission of the petitioner therein that the guidelines issued by the
Government of India, Ministry of Defence dated 18th May 2011 for
issuance of NOC for building construction are arbitrary and did not
provide for any safeguard. This Court held that those guidelines were
issued because the authorities found that the said WODA which
imposes restrictions upon use and enjoyment of the land in the vicinity
of defence establishment needs to be comprehensively amended so as
to take care of security concerns of defence forces. The process of
amendment has been put in motion and may take some time. This
Court held that the objective of these instructions is to strike a balance,
between the security concerns of the defence forces and the right of
public to undertake construction activities on their land. The principles
of law laid down by this Court in the said judgment apply to the facts of
this case.
121. In our view, the reliance placed by the petitioners on the
judgments of the Supreme Court in case of F.B. Taraporawala v. Bayer
India Ltd. (supra), in case of B.K. Ravichandra v. Union of India (supra)
and in case of Canara Bank v. N.G. Subbaraya Setty (supra) in so far as
the submission of the petitioners that the impugned notice violates
Article 300A of the Constitution of India has no merit. There is no
dispute about the proposition of law laid down by the Supreme Court in
the above referred three judgments. However since there is no violation
of the Article 300A of the Constitution of India, those judgments would
not assist the case of the petitioners.
122. This Court in case of Union of India v. State of Maharashtra
(Adarsh Co-operative Housing Society Ltd. case) (supra) had
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considered the submissions of both the parties including the

submission of the Union of India that Adarsh building poses a serious
threat to the security of the Colaba Military Station. This Court held that
section 46 of the MRTP Act indicates that while considering the
application for permission, the planning authority shall have due regard
to the provisions of any draft or final plan or proposals published by
means of notice submitted or sanctioned under the said Act.
123. This Court held that NOC of Defence Establishment is necessary
and in fact it is a mandatory duty of the planning Authority to insist for
NOC of Defence Establishment while considering proposal for building
permissions. This Court after adverting to the judgments of this Court
in case of TCI Industries Limited (supra), in case of S.S.V. Developers
(supra), in case of Hindustan Petroleum Corporation Ltd. (HPCL)
(supra) and also the decision of the Supreme Court in case of Oswal
Agro Mills Limited (supra) held that it is a mandatory duty of the
planning Authority to insist for NOC of Defence Establishment. This
Court held that simply because no declaration under Section 3 of the
Act is issued, it cannot be said that the Defence Establishment was not
entitled to insist for their NOC. This Court further held that the
provisions of WODA are not the sole repository for prohibiting
construction activities near Defence Establishment and the Central
Government can certainly invoke Section 46 and DC Regulation 16.
124. In the said judgment, this Court also considered the argument
that there are several high-rise buildings in the near vicinity which are
totally overlooking into the MG & G Area and Army and Navy area in
Colaba and held that sensitive and vital installations have to be
safeguarded and protected from entry of persons who are considered to
be undesirable and a security risk. The writ court does not possess any
expertise in such cases. The Court cannot indulge in guess work and
hold that the security concern expressed by the petitioner is not
bonafide.
125. This Court held that in that case, security of CMS was involved
and thus this Court was not prepared to accept that for any extraneous
reason the present petition is instituted. This Court also observed that
the fact that the nature of threat to the security of nation has
undergone a vast change over the last decade with terrorism emerging
as a source of major and unconventional danger need not be over
emphasized. The assessment of such threats has heightened and the
precautionary measures taken against them are expanded. This Court
also considered that in the year 2007, blast in local train in Mumbai
occurred. On 26.11.2008 a terror attack occurred in Mumbai. Times
have changed. People have changed. Technology has advanced. New
techniques are employed. Increase of terrorism is an accepted
international phenomenon.
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126. This Court has also held in the said judgment that when
national interest is pitted against private interest, naturally national
interest must be protected as against the private interest. Technical
objections of delay and laches will not come in the way of the court in
exercising its extra ordinary jurisdiction under Article 226 which is
undoubtedly equitable jurisdiction and the Court will grant relief for
protecting national as well as public interest. This Court accordingly
held that petition could not be dismissed on the ground of gross delay
and laches. The principles of law laid down by the Supreme Court in
case of Union of India v. State of Maharashtra (Adarsh Co-operative
Housing Society Ltd. case) (supra) are applicable to the facts of this
case.
127. This Court in case of Sunbeam Enterprises (supra) considered
the arguments similar to the arguments raised by the petitioners in this
case. This Court also considered the guidelines issued by the Central
Government and held that in principle, this Circular contemplates that
in places where local Municipal Laws require consultation with the
Station Commander before a building plan is approved, the Station
Commander may convey its views after seeking approval from the next
higher authority not below the rank of Brigadier or equivalent within
four months of receipt of such requests or within the specified period, if
any, required by law. Objection/views/NOC will be conveyed only to the
State Government agencies or to Municipal Authorities.
128. It is held that the Station Commander may refer the matter
immediately to its next higher authority in the chain of its command.
Then the Station Commander may convey its objection/views to the
local municipality or State Government agencies. This Court considered
the clarificatory Circulars dated 18th March, 2015 and 21st October,
2016 and also Regulation 16(e) and 16 (n) of the D.C. Regulations in
the said judgment and held that the security aspect is a fundamental
necessity and that the Planning Authority and the public bodies who are
entrusted with the task of deciding on the location of residential areas,
must be alive to at all times. The Court cannot permit any compromise
or leniency on these issues, especially with reference to security by any
of the public bodies or even individuals. It is held that taking into
consideration the aspect of security of our Naval Establishments and
that of the public is a mandatory duty of the MCGM (the Planning
Authority) before sanctioning any plan or permitting any development.
The Municipal Corporation has to apply its mind before giving
development permission and to keep in mind the pros and cons of such
permission.
129. In so far as the powers of the writ Court to entertain the writ
petition in these circumstances is concerned, this Court held that the
issue of security raised by the Navy is merely a bogey or a matter of
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substance, is not a question which can be decided under Article 226 of

the Constitution of India. This aspect has to be left squarely to the
discretion of the Defence Authorities. It is not for this Court to
pronounce on the aforesaid aspect as it is completely in the realm of
the Defence Establishments. It is held by this Court that the issue of
security and safety of the nation is left best to the experts in that field
and it is neither the petitioners nor the Planning Authority and least of
all this Court that would give any finding in that regard.
130. We are not inclined to accept the submission made by the
learned senior counsel for the petitioners that the issue of security
threats raised by the respondents is a bogey or harsh. The issue of
security threats has to be considered by the authority of the Central
Government who is an expert in that field and to consider the
perception of security threats and seriousness thereof in the present
day or in future and cannot be substituted by another view on such
aspect by this Court. The Writ Court does not possess any expertise on
the security threat perceived by the defence authority and if this Court
interferes with the security threats perceived by the authority which
security threats is considered in public interest, this Court would
exceed its jurisdiction by embarking on this exercise.
131. This Court in the said judgment also observed that this Court
cannot lose sight of the fact that indeed the times have changed.
Terrorism is on the rise and the State is no longer fighting a known
enemy. The nature of threat to the security of the nation has undergone
a vast change over the last decade with terrorism emerging as source
of major and unconventional danger. The assessment of such threats
has heightened and accordingly the necessary precautionary measures
have to be taken against them.
132. In so far as the issue raised by the petitioners that there are
other places in nearby vicinity for which permission or NOC by the
Defence Authority are granted prior to the buildings under construction
or after refusing the NOC in favour of the petitioners is concerned, a
similar argument was advanced by the petitioners in case of Sunbeam
Enterprises (supra). This Court held that the said argument is wholly
misconceived and misplaced. There was nothing on record to show that
when those buildings came up and when the development permissions
were granted for the same. There were security threats. This Court held
that one must not lose sight of the fact that it is quite possible that the
threat perception at the time when these permissions may have been
granted by the Planning Authority were quite different from the current
state of affairs. No reliance on these vague allegations would be placed.
133. In our view, even if some permissions are granted by the
Planning Authority in past for carrying out construction in the same
vicinity, the same cannot give any right to the petitioners. This Court
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has held that even if the Planning Authority has granted some
permission in dereliction of their duty, the Navy cannot be penalized
and punished for the same. The petitioners cannot be allowed to take
advantage of any alleged wrong done by the Planning Authority in the
past. Two wrongs do not make a right and thus this Court under Article
226 of the Constitution of India cannot issue a mandate or a direction
to perpetuate the wrong any further.
134. In our view Mr. Singh, learned Additional Solicitor General is
right in his submission that the aspect of security threats has to be
considered day to day considering the prevailing situation and not on
the basis that no untoward incident took place since the date of
granting permission carrying out development to the other building in
nearby vicinity. The respondents also have to consider the security
aspect for future.
135. Thought the learned senior counsel for the petitioners argued
that the impugned action on the part of the respondents is malafide,
learned senior counsel could not demonstrate any malafides on the part
of the respondents in initiating action against the petitioners. The
allegations of malafides have to be clearly pointed out in the pleadings
and have to be demonstrated as correct. The vague allegations of
malafides, if any, cannot be looked into by the Court to render a finding
that the action on the part of the respondents is malafide.
136. This Court in case of Narangs International Hotels Private
Limited (supra) has held that the examination of security threat is an
ongoing process. It is held that whether there is any real, apparent and
imminent danger emanating from the report can be decided by the
Intelligence Bureau. Threat perception falls in the domain of
Intelligence Bureau. The Court is unable to draw any conclusions in that
behalf.
137. The Supreme Court in case of Bharat Singh (supra) has held
that when a point which is ostensibly a point of law is required to be
substantiated by facts, the party raising the point, if he is the writ
petitioner, must plead and prove such facts by evidence which must
appear from the writ petition and if he is the respondent from the
counter affidavit. If the facts are not pleaded or the evidence in support
of such facts is not annexed to the writ petition or to the counter-
affidavit, as the case may be, the Court will not entertain the point.
There is a distinction between a pleading under the Code of Civil
Procedure and a writ petition or a counter affidavit. While in a pleading,
that is, a plaint or a written statement, the facts and not evidence are
required to be pleaded, in a writ petition or in the counter affidavit not
only the facts but also the evidence in proof of such facts have to be
pleaded and annexed to it. We do not find any serious allegation of
malafides raised by the petitioners in the writ petition. The principles of
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law laid down by the Supreme Court in case of Bharat Singh (supra)
apply to the facts of this case.
138. In our view, the submission of the learned senior counsel for
the petitioners that the tenants of the petitioners had already vacated
the building and construction was carried out upto 10th floor after
demolishing the building and thus the respondents could not have
insisted for NOC from the Defece Establishment is devoid of merit.
Though the guidelines were issued as far back as on 18th May 2011, the
petitioners without obtaining NOC from the Defence Establishment
obtained permission from the Municipal Corporation for carrying out
construction in the year 2013 without prior NOC from the Defence
Establishment. This submission of the learned senior counsel is already
rejected by this Court in identical facts in case of Adarsh Co-operative
Housing Society Ltd. case (supra). There is no merit in the submission
of the learned senior counsel for the petitioners that the respondent no.
6 is not a Defence Establishment under WODA and thus no objection
from the respondent no. 6 was warranted.
139. We are inclined to accept the submission made by the learned
Additional Solicitor General and Mr. Naphade, learned counsel for the
respondent no. 6 that the respondent no. 2 is always treated as
respondent no. 6 as local military authority. The respondent no. 6 has
raised an objection about the construction of building from time to
time. The respondent no. 6 has already been declared as a ‘Prohibited
Place’ under Notification dated 28th July 1987 by the State Government.
The respondent no. 6 had objected to the construction on 12th
December 2017. The Ministry of Defence vide communication dated 17th
February 2020 has clarified that the respondent no. 6 is a local military
authority. In our view, the impugned guidelines are thus applicable to
the respondent no. 6 and the petitioners. The petitioners itself has
placed reliance on internal note annexed to the writ petition which
clarifies this position. The local military authority other than the 342
Army Establishments mentioned in guideline dated 21st October 2016
are covered by the impugned guidelines.
140. In our view, there is no merit in the submission of the learned
senior counsel for the petitioners that Notification dated 28th July 1987
under the Official Secrets Act is without authority. The respondent no. 3
has exercised powers under sub-clauses (c) and (d) of Section 2(8) of
the Official Secrets Act and notified the respondent no. 6 as a
‘Prohibited Place.’
141. Learned senior counsel for the petitioners does not dispute that
the Respondent No. 6 is India's leading Defence Public Sector
Undertaking Shipyard under the aegis of respondent no. 2. After
respondent No. 2 has taken over respondent no. 6 in 1960, respondent
no. 6 has become the leading manufacturer of submarines and
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warships for Indian Navy. The functions of respondent no. 6 includes

and/or not limited to (a) construction of stealth warships for Indian
Navy and Coast Guard, (b) construction of warships for Indian Navy
and (c) construction of submarines for Indian Navy. These activities are
undertaken by respondent no. 6 by laying out sketches and model of
the said warship/submarines. Such activities are highly secretive and
sensitive to the security/sovereignty and integrity of India. Respondent
No. 3 has accordingly exercised powers under sub-clauses (c) and (d)
of Section 2(8) of the Official Secrets Act and notified respondent no. 6
as a ‘Prohibited Place.’
142. After considering the nature of work carried out by respondent
No. 6, this Court is of the view that it is imperative to ensure that there
is no recording, photography, sharing, transferring or transmitting of
secured data with sensitive information which may be possible on
account of advance technology and gadgets coupled with the proximity
to Defence Establishments that would be more than useful to any
enemy and its disclosure is likely to affect the sovereignty and integrity
of India. In our view, construction activities cannot be permitted at the
cost of national security. The construction proposed by the respondents
is likely to be misused for spying over the property and activities of
respondent No. 6, which is an offence under the provisions of the
Official Secrets Act.
143. There is no merit in the submission of the learned senior
counsel for the petitioners that the developer was not required to obtain
NOC if the permission was already granted prior to 18th May 2011 or
that the plot of the petitioners is outside the boundary indicated by the
respondents. In our view, since notification under Section 3 of the
WODA was not necessary for the action initiated by the respondents,
question of publication of such notification did not arise. There is no
merit in the submission of the learned senior counsel for the petitioners
that the circulars are not applicable till 9th August 2019. In our view,
individual inconvenience alleged to have been canvassed by the
petitioners cannot prevail over the national interest. The public interest
would prevail over the private interest. The petitioners had not
challenged the provisions of the MRTP Act or D.C. Regulations in this
petition.
144. Supreme Court in case of Rai Sahib Jawaya Kapur (supra) has
held that a perusal of Article 154 of the Constitution of India indicates
that it does not follow that in order to enable the executive to function,
there must be a law already in existence and that the powers of
executive are limited merely to, the implementation of those laws.
145. Supreme Court in case of Kasturi Lal Lakshmi Reddy (supra)
has held that one basic principle which must guide the Court in arriving
at its determination is that there is always a presumption that the
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Government action is reasonable and in public interest and it is for the

party challenging its validity to show that it lacks in reasonableness or
is not in conformity with public interest. This burden is a heavy one and
it has to be discharged to the satisfaction of the Court by proper and
adequate material. We are inclined to accept the submission made by
Mr. Naphade, learned counsel for the respondent no. 6 that though the
respondent no. 3 had raised an objection when the building was
constructed upto 7th floor, the Municipal Corporation had issued stop
work notice only when the building was constructed upto 19th floor was
constructed with a view to nullify the objection.
146. In so far as the judgment of the Supreme Court in case of F.B.
Taraporawala (supra) relied upon by Mr. Samdani, learned senior
counsel for the petitioners is concerned, the said judgment does not
apply to the facts of this case even remotely.
147. In so far as the order passed by the Supreme Court on 9th April
2012 in case of TCI Industries Limited v. Municipal Corporation of
Greater Bombay in Special Leave to Appeal (C) No. 10381 of 2012
arising out the judgment delivered by this Court is concerned, Supreme
Court has granted leave in the said SLP. The judgment of this Court is
however has not stayed by the Supreme Court.
148. In so far as the judgment of the Supreme Court in case of
Canara Bank v. N.G. Subbaraya Setty (supra) relied upon by Mr.
Samdhani, learned senior counsel for the petitioners is concerned, the
said judgment also does not apply to the facts of this case even
remotely.
Satwaratna Co.op Housing Society Ltd. v. BPCL (supra) relied upon by
the learned senior counsel for the petitioners in support of the
submissions that the judgment of this Court in case of BPCL v.
Municipal Corporation of Greater Mumbai delivered on 25th April 2019 is
reversed by the Supreme Court is concerned, a perusal of the said
judgment of the Supreme Court in case of Satwaratna Co.op Housing
Society Ltd. v. BPCL (supra) indicates that the earlier judgment of the
Supreme Court has not been brought to the notice of the Supreme
Court on the similar issue. Be that as it may, the facts before the
Supreme Court in the said judgment are different from the facts before
this case.
150. The Supreme Court in case of Satwaratna Co.op Housing
Society Ltd. v. BPCL (supra) has held that when acting under Article
226 of the Constitution of India, High Court does not act as a Court of
Appeal and hence would not be entitled to interfere with exercise of
discretion by an Officer except in cases of violation of a law, rule or
regulations. In this case, higher authority of Defence Establishment
after considering the security aspect perceived by it had insisted for
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NOC. The NOC from Defence Establishment was mandatory before

carrying out any construction in the nearby vicinity within the close
proximity. In our view, the said judgment would support the case of
the respondents and not the petitioners. The Defence Establishment
having considered the security aspect being an expert, this Court
cannot interfere with the decision of the said expert while exercising
powers under Article 226 of the Constitution of India. The guidelines
dated 18th May 2011 read with amendment were not considered in that
case. The said judgment does not deal with interpretation of MRTP Act
and D.C. Regulation with reference to the safety and security of
Defence Establishment which has been considered in large number of
judgments delivered prior to the judgment in case of HPCL (supra). The
Supreme Court in the said judgment was considering an issue as to
whether a buffer zone could be created around a refinery. There is no
such issue in this case. In our view, the writ petition is devoid of merit.
151. In so far as the judgment of the Supreme Court in case of Babu
Verghese (supra) is concerned, Supreme Court has held that if the
manner of doing a particular act is prescribed under any Statute, the
act must be done in that manner or not at all. There is no dispute about
propositions of law laid down by the Supreme Court in the said
judgment. In our view, none of the respondents have committed any
act contrary to the manner of doing such act provided under any of the
statutes. The said judgment in case of Babu Verghese (supra) thus
would not assist the case of the petitioner.
152. In so far as the Judgment of the Supreme Court in case of S.N.
Rao v. State of Maharashtra (supra) relied upon by the petitioner is
concerned, the said judgment would not apply to the facts of this case
even remotely. The circulars issued by the Union of India are not
beyond their powers or contrary to Articles 73 or 162 of the
Constitution of India. The said judgment thus would not assist the case
of the petitioner.
153. The Supreme Court in the case of Bishambhar Dayal
Chandramohan v. State of Uttar Pradesh has held that “the State in
exercise of its executive power is charged with the duty and the
responsibility of carrying on the general administration of the State. So
long as the State Government does not go against the provisions of the
Constitution or any law, the width and amplitude of its executive power
cannot be circumscribed. If there is no enactment covering a particular
aspect, certainly the Government can carry on the administration by
issuing administrative directions or instructions until the legislature
makes a law in that behalf. Otherwise, the administration would come
to a standstill.” In the present case the guidelines existed prior to the
proposal for development being submitted by the petitioners. Further,
the MDL was also declared an LMA on 9th August 2017, and these facts
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and circumstances cannot be ignored since the same have to be seen in

the public interest as opposed to private interest.
Hindustan Times v. State of U.P. is concerned, in our view, since the
respondents have not taken away the property of the petitioner, the
judgment of Supreme Court would not apply and is clearly
distinguishable on facts of this case. Similarly, the judgments of the
Supreme Court in cases of State of W.B. v. Sujit Kumar Rana (supra),
Hari Krishna Mandir Trust v. State Maharashtra (supra), B.K.
Ravichandra v. Union of India (supra) & Sukh Dutt Ratra v. State of
Himachal Pradesh (supra) would not apply to the facts of this case for
the similar reasons.
State of Bihar v. Project Unchcha Vidya, Sikshak Sangh (supra) is
concerned, Supreme Court has held that the requirement of law for the
purpose of clause (6) of Article 19 of the Constitution of India can by no
stretch of imagination be achieved by issuing a circular or a policy
decision in terms of Article 162 of the Constitution of India or
otherwise. Such a law, it is trite, must be one enacted by legislature.
There is no dispute about the proposition of law laid down by the
Supreme Court in the said judgment. In our view, the said executive
instructions issued by the respondents by way of circulars are not
beyond the powers of the Central Government and thus the said
judgment would not apply to the facts of this case.
156. In so far as the judgment of the Supreme Court in case of P.H.
Paul Manoj Pandian v. P. Veldurai (supra) relied upon by the learned
senior counsel for the petitioner is concerned, Supreme Court in the
said judgment has dealt with Article 162 of the Constitution of India
and has held that the executive power of the State extends to matters
with respect to which the State Legislature has power to make laws.
Once a law occupies the field, it will not be open to the State
Government in exercise of its executive power under Article 162 of the
Constitution to prescribe in the same field by an executive order.
Central Government in this case has issued such circulars considering
its powers also under Section 46 of the MRTP Act and Regulation 16(n)
of the Development Control Regulations, 1991 which has to be read
together and not in isolation.
157. In so far as the judgment of this Court in case of Association of
International Schools & Principals Foundation v. State of Maharashtra
(supra) relied upon by Mr. Samdhani, learned senior counsel for the
petitioners is concerned, in support of the submission that right to
manage an institution is also a right to property is misplaced. The
respondents have taken away properties of the petitioners. Ownership
of the petitioners in the said writ property continues even today.
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158. In so far as the judgment in the case of Runwal Constructions

(supra) relied upon by Mr. Godbole, learned counsel for the petitioners
is concerned, the construction of the petitioners therein was at a
distance of approximately 500 meters from the Helipad. There were two
notifications under WODA, which imposed restrictions upto a distance
of 100 mtrs. This Court in the facts of that case observed that the
reliance on Guidelines by the respondents was not justified in view of
the fact that there was already a notification under WODA.
159. This Court has held that in almost all the decisions (supra) that
the right to property may not be fundamental right any longer, but it is
still a constitutional right under Article 300A and a human right and in
view of the mandate of Article 300A, no person is to be deprived of his
property save by authority of law. There is no dispute about the
propositions of law laid down by the said judgment. However, in this
case, the Central Government has not taken away the property rights of
the petitioners. The said judgment is clearly distinguishable on facts of
this case.
160. In so far as the judgment of the Division Bench of this Court in
case of Manohar Lal Sharma v. Union of India (supra) relied upon by the
learned senior counsel for the petitioners is concerned, this Court has
held that the respondents Union of India may decline to provide
information when constitutional considerations exist, such as those
pertaining to the security of the State, or when there is a specific
immunity under a specific statute. However, it is incumbent on the
State to not only specifically plead such constitutional concern or
statutory immunity but they must also prove and justify the same in
Court on affidavit. In this case, the respondents have sufficiently
brought on record the security concerns in not granting NOC to the
petitioners to carry out development of the writ property. The said
judgment in case of Manohar Lal Sharma v. Union of India (supra) thus
would not assist the case of the petitioners.
161. If Central Government once having satisfied this Court about
the security concern, this Court cannot substitute security threat of the
Central Government perceived by the Central Government and
substitute its perception by another view.
162. In so far as the judgment of Supreme Court in case of
Pharmacy Council of India v. Rajeev College of Pharmacy (supra) relied
upon by the learned senior counsel for the petitioners is concerned,
Supreme Court in the said judgment has held that a citizen cannot be
deprived of the right under Article 19 (1) (g) except in accordance with
law. It is held that the requirement of law for the purpose of clause (6)
of Article 19 of the Constitution can by no stretch of imagination be
achieved by issuing a circular or a policy decision in terms of Article
162 of the Constitution or otherwise. Such a law, it is trite, must be one
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enacted by the legislature. These powers of the Central Government

has been upheld not only by this Court but also by the Supreme Court.
The said judgment is clearly distinguishable on facts and would not
assist the case of the petitioners.
163. We accordingly pass the following order:—
(i) Writ petition is dismissed. Rule is discharged. Interim application
pending, if any, stands disposed off.
(ii) This Court has not expressed any views on the issue whether the
petitioners would be entitled to seek any compensation from the
respondents for the loss, if any, suffered by the petitioners in view
of the notices issued by the respondents. The said issue is kept
open.
(iii) No order as to costs.
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Gorakhnath Shankar Nakhwa v. Municipal Corpn. of Greater Mumbai, 2022 SCC OnLine Bom 6703

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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Tuesday, May 28, 2024

2022 SCC OnLine Bom 6703 : (2023) 3 AIR Bom R 788

In the High Court of Bombay

Writ Petition No. 113 of 2019

constructions within 100 meters of Defence Establishments (500

13. On 4th April, 2016, the respondent no. 1 issued a

redevelopment of cessed buildings on the plot of Mazagaon Division,

also would have to face payment of compensation. Respondent No. 1

oppose approval to high-rise building in the vicinity of the shipyard due

42. It is submitted that any deprivation or interference with, or

Section 2(a), definition of the term ‘person interested’ under Section 2

Authorities to consider the security aspect. The preference has to be

guarantees to a citizen the right to practice any profession or to carry

70. It is submitted that this Court while exercising writ jurisdiction,

the provisions of the Official Secrets Act. He submitted that to protect

(a) TCI Industries Limited v. Municipal Corporation of Greater

respondent No. 6. Respondent No. 1 thus should have consulted

89. Mr. Samdani, learned senior counsel for the petitioners in

property under Article 300A of the Constitution. By virtue of respondent

granting development permission in an appropriate manner and by

property in the vicinity of the property of the respondent no. 6 is

challenged by the petitioners. This Court accordingly held that the

considered the submissions of both the parties including the

substance, is not a question which can be decided under Article 226 of

warships for Indian Navy. The functions of respondent no. 6 includes

Government action is reasonable and in public interest and it is for the

NOC. The NOC from Defence Establishment was mandatory before

and circumstances cannot be ignored since the same have to be seen in

158. In so far as the judgment in the case of Runwal Constructions

enacted by the legislature. These powers of the Central Government

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