Vikram Delite Co-op. Hsg. Soc. Ltd. v. Union of India

7. It is submitted that the guidelines dated 18th May, 2011 as modified on 17th November, 2015 clearly stated that if the proposed construction is in line (shadow) or behind (shield) of the existing four storied or more building within 500 meters, it is the prerogative of the Municipal/State Authority to approve the proposal for construction. He submitted that in this case, the modified proposal of the petitioners providing for (i) RCC Vision Cutting Louvers, (ii) No lift machine room and water tanks on the top floor, (iii) provision of slopping roof which is inaccessible by any stairs and (iv) no terrace, has been approved by the Corporation. The said guidelines further stated that in terms of the revised guidelines dated 17th November, 2015, the decision of the Corporation is final and binding on Navy.

8. It is submitted that the letter dated 4th April, 2016 of the then Defence Minister makes it clear that the terms “in line with or behind” are “by the shadow or shield” are meant to indicate construction proposed which is in line with or any shadow or shield of existing structures within 500 meters. The entire defence of Navy based on an unknown concept of existence of partial shadow and shield and absence of complete shadow and shield based on horizontal width from the proposed construction is not supported by the guidelines.

9. It is submitted that the guidelines have no force of statute and in fact as indicated in the first guidelines dated 18th May, 2011, there was a stop gap arrangement pending the proposed amendment to the Works of Defence Act, 1903. The decision making process is flawed and smacks arbitrariness. It is submitted that the only reason for refusing to grant NOC on the application made by the petitioners that the construction work had started before applying for NOC is absurd. In atleast four cases, the NOC had been granted post commencement certificate and after commencement of construction work.

10. It is submitted by the learned counsel that the plea raised by the Navy in the affidavit in reply alleging threat perception is totally untenable and contrary to the position of record. He submitted that in case of (i) New Taj Apartment with ground + 7 floors and having full line of sight of Naval Depot, is at distance of 60 meters with only LBS Road in between. (ii) a building with height of approximately 40 meters where SRA is the Planning Authority, is abutting the boundary of the Depot and has full line of sight of the Naval Depot even from the 2nd floor and (iii) that there are 22 NOCs that have been issued by the Naval Authorities for projects in Mumbai out which 4 NOCs have been issued to projects in Ghatkopar area. Each of the 4 projects in Ghatkopar have direct line of sight to the Naval Depot at Ghatkopar. He relied upon the photographs annexed at pages 660 to 663 of the affidavit in rejoinder filed by the petitioners.

11. It is submitted by the learned counsel that Naval Depot is surrounded on all 4 sides by high rise buildings higher than the petitioners buildings such as (i) Neelkant Dhara, (ii) Parvati Heritage,

(iii) Aaradhya Residency, (iv) Exocita & Premier by HDIL, (v) Slum

Building across the street from the Naval Depot, amongst many others. He also relied upon the google map at page 802 of the affidavit in rejoinder along with photographs.

12. It is submitted by the learned counsel that the impugned action does not satisfy the Wednesbury principle of reasonableness. He submitted that when a defence of partial shield/shadow unknown to the guidelines was raised by the respondents, the petitioners submitted a proposal which takes care of all apprehensions including deletion of terrace. The said apprehension was however rejected by raising a contention that from the terrace, there will be line of sight.

13. It is submitted that when vision cutters of Aluminum Composite Panels were proposed by the petitioner, it was opposed by the respondents on the ground that it may corrode. The permanent RCC Louvers Vision Cutters were proposed by the petitioners which were even approved by the Corporation. However, the Municipal Corporation rejected the said proposal on the same ground that the RCC Vision Cutters can also be removed.

14. It is submitted by the learned counsel that it is also the case of the Municipal Corporation that the Naval establishment at Worli is visible from some part of the building but NOC has been granted. The land of the petitioner society is a privately owned land and not a defence land. 66 members of the petitioner society are on the street from the year 2014, when all but 4 members had vacated. The developers had spent more than Rs.12.58 crores on payment of transit accommodation (Rent) excluding corpus. He submitted that about

44.14 crores have been already spent by the petitioners as of March

2022. He submitted that there is no public interest and/or the security concerns likely to be compromised even remotely.

15. Learned counsel for the petitioners invited our attention to the text of the speech of the learned Minister annexed to the affidavit in rejoinder and more particularly in paragraph (13). He submitted that even according to the said speech, any building if existed upto 500 sq.mtrs., there was no problem in granting permission.

16. Learned counsel for the petitioners tendered a compilation of judgments and the documents. He relied upon the following judgments:-

(i) The judgment of Division Bench of this Court in case of Tirandaz Subha Niketan Co-operative Housing Society Ltd. & Ors., vs. Union of India & Ors., (2019) 2 AIR Bom R 748 (paragraphs 2, 40 and 41);

(ii) The judgment of Division Bench of this Court in case of Runwal Constructions vs. Union of India & Ors., (2021) 4 Bom C.R. 57 (paragraphs 5, 11, 37, 109 and 121);

(iii) The judgment of Rajasthan High Court in case of

Union of India vs. M/s.S.R.Land Square Private Limited & Ors., 2018 SCC OnLine Raj 199 (paragraphs 8, 44 and 61);

(iv) The judgment of Delhi High Court in case of UOI vs. GNCT of Delhi & Ors. in Writ Petition (C) No. 6901 of 2017 and connected matter dated 11th January, 2019 (paragraphs 16 and 18);

(v) The judgment of Kerala High Court in case of

M.P.Hassan Kuhi vs. Union of India in Writ Petition (C) No. 9798 of 2013 (paragraphs 2 and 3);

(vi) The judgment of Kerala High Court in case of

Fathimathul Raseena D/o. Ummer vs. Kannur Municipality, Kannur & Ors., in WP(C) No. 14883 of 2013 (paragraphs 2 to 5).

(vii) The judgment of Division Bench of this Court in case of Sea Kunal Corporation Pvt. Ltd. vs. Municipal Corporation and others, (2019) 2 AIR Bom.R. 766 (paragraphs 7, 9 and 29).

17. It is lastly submitted by the learned counsel for the petitioners that the petitioners are ready and willing to allay all the fears of Navy at its own cost.

18. Mr.Anil Singh, learned Additional Solicitor General for the respondent nos.1, 5 and 6 on the other hand made following submissions:- (a) The Material Organization, Mumbai situated at Ghatkopar is a sensitive and vital unit of the Indian Navy. The proposed construction is at a distance of 421 mtrs. as per the petitioner and 375 mtrs. from the north east side as per the Navy from the boundary of the Material Organization. The proposed construction is of four wings A, B, C, D having the configuration as Basement + stilt + ground + 1st to 9th upper floors. The proposal to redevelop and issuance of Letter of Intent in favour of the petitioners are only in 2014 i.e. much after MRTP, DCR and the guidelines were already in force. The respondent nos. 5 and 6 were never approached for a NOC prior to grant of the limited permissions obtained by the petitioners. According to the petitioners, these facts are not disputed by the petitioners. (b) It is submitted that the right to develop is not an unconditional right but is a right subject to and depending upon the satisfaction of the terms and conditions contained in the letters of sanction, approval in that behalf so also the planning laws. The MRTP and DCR both required and obliged the consideration of the safety and security elements whilst considering the grant of development permissions.

(c) It is submitted that the guidelines dated 18th May, 2011 provides for the requirement for issuance of NOC for building constructions. The NOC of Defence Establishments is not only necessary but is in fact a mandatory duty of the Planning Authority to insist for NOC of Defence Establishment while considering proposal for building permissions.

(d) It is submitted that a Division Bench of this Court has considered and noted the importance and sensitive nature of the very same establishment i.e. the Material Organization, Ghatkopar in case of Sunbeam Enterprises vs. Municipal Corporation of Greater Mumbai, (2019) SCC OnLine Bom 1059. The said Material Organization, Ghatkopar would also qualify as a Naval establishment within the meaning of Naval establishment setout in section 3(12A) of the Navy Act, 1957. (e) It is submitted that before granting any NOC by the Local Military Authority, a detailed exercise is undertaken in each case based on its independent factors. Each construction or each proposal for NOC is viewed independently and separately. The individual factors are duly considered before granting or refusing a NOC. Local Military Authority conducts a physical investigation which involves not merely an inspection of the proposed site of construction but an investigation/inspection of the entire neighbourhood. (f) It is submitted that the detailed assessment/analysis/report are prepared by the Local Military Authority which reports are then placed for further consideration before the Headquarters Western Naval Command, which not only deliberates upon the same but if it deems fit/ necessary may even conduct a physical inspection itself to ascertain the factual position. It is only after this detailed analysis that the respondent evaluates the interest of national security vis-a-vis the defence establishment with respect to grant of NOC. (g) It is submitted by the learned Additional Solicitor General that the guidelines dated 17th November, 2015 issued by the Ministry of Defence for issue of No Objection Certificate for building construction near defence establishments was further clarified and confirmed by the erstwhile Defence Minister of India vide his letter dated 4th April, 2016 to the Chief Minister of Maharashtra. (h) It is submitted by the learned Additional Solicitor General that merely because one building which is for example of a height of 10 floor has been granted NOC, another building of 10 floors would automatically be entitled to an NOC would not be correct. He submitted that similarly it would not be appropriate to state that merely because 4 proposed constructions had been granted NOC’s, even the petitioners are entitled to such an NOC. Each NOC and each proposed construction is separate and independent. Various critical factors may differ between two constructions which may otherwise appear similar. All factors are taken into consideration before addressing the issue of grant or rejection of NOC.

(i) It is submitted that insofar as the plot of the petitioners is concerned, the said plot is admeasuring 3590.20 sq.mtrs. and is curved plot. The construction of the petitioners is coming up at a distance of 375 mtrs. from the North-East side of Material Organization, Mumbai. (j) It is submitted that there is no dispute that the NOC has been granted to the construction proposed on CTS No. 244 to 247 on or about 25th May, 2016. However, since then several acts breaching the security and safety measures are now considered necessary in wake of such incidents both within India and internationally, NOC was not granted in favour of the petitioners. It is submitted that the grant of NOC in the new scenario of heightened security is required to be considered on the present day, considering no construction has till date commenced on the said plot. The respondent no.6 is in process of revoking the grant of NOC to the construction proposed on CTS Nos. 244 to 247. (k) It is submitted that the petitioners though was obliged to apply for NOC from the Local Military Authority before commencing the constructions did not obtain such NOC and commenced the construction.

(l) It is submitted that upon detailed analysis of the site visit, it is found that the petitioners’ construction will have a direct line of sight to core Depot at Material Organization Mumbai. He submitted that even though the petitioners construction partially falls in shadow/shield of four buildings viz. Mukund Society, Neelkanth Dhara, Police Staff Buildings and New Taj Apartment, it is not entirely in the shadow/shield of any building. The proposed construction is partially in the shadow/shield not on the basis of height but on the basis of width. He submitted that the portion of the proposed construction was not in the shadow or shield of any building.

(m) It is submitted that even the proposed height is reduced from

32.55 mtrs. to 28.65 mtrs. claimed to be at par with New Taj Apartment, it would not be correct for the petitioners to canvas that the structure of the petitioners would be in the shadow or shield of said New Taj Apartment. (n) It is submitted that during the visit, the representative of the petitioner no.2 present at the site mentioned that the old building was comprising of 4 wings i.e. Wing ‘A’ comprised of ground +3 floors configuration, Wing ‘B’ comprised of ground + 4 floors configuration, Wing ‘C’ comprised of ground + 2 floors + part terrace and Wing ‘D’ comprised of stilt + 4 floors configuration had been demolished. The petitioner no.2 had proposed to construct a single building of four wings in the proposed configuration of basement + stilt + 1 to 9 upper floors configuration. (o) It is submitted that the defence authorities are experts to determine the threat perception to the security and safety of the nation. This Court cannot interfere with the refusal of the NOC by the respondent no.2 in favour of the petitioners. It is submitted by the learned Additional Solicitor General that the petitioners have deliberately obfuscated and manipulated certain documents attached to the writ petition and sought to contend that the same was an NOC granted to an adjoining plot of land and thereby urged that the Navy was being arbitrary. On this ground itself, the petitioners are not entitled to invoke discretionary power of this Court. (p) It is submitted that when the petitioners were issued Letter of Intent in the year 2014 or thereafter with the provisions of MRTP, DC Regulations were in force and were applicable. The petitioners have commenced work with a view to try and urge as if a fait accompli has taken place. The petitioners cannot be allowed to take advantage of its own wrong. (q) It is submitted that since the Indian Navy is expert in the field of safety and security, it would be within the sole domain of the Navy/Defence to determine the threat perceptions and the safety and security aspects. The question as to whether the proposed construction is within the shadow and/or shield of an existing building would be within the domain of the Navy. The petitioners have not alleged or pleaded or in any event demonstrated any malafide against the respondents. (r) It is submitted that the new proposal submitted by the petitioners was also considered afresh and after detailed analysis, it was found that the same still persisted safety and security threat and accordingly NOC could not be granted. (s) It is submitted that under the provisions of Works of Defence Act, there is a provision of payment of compensation and acquisition. The security threats prevail on one day, may be different on another day. The petitioners thus cannot allege any discrimination or bias on the part of the respondents while rejecting the NOC in favour of the petitioners. The defence has not objected to all construction as would be ended from the record. However the Navy cannot compromise on the safety and security of the nation. There is no negative equality provided in Article 14. It is for the petitioners to show as to how this construction is permissible despite the security threats. (t) Insofar as submission of the learned counsel for the petitioners that the new proposal submitted by the petitioners has been approved by the Municipal Corporation and thus the decision of the Municipal Corporation would be binding on the Navy is concerned, he submitted that even the said order passed by the Municipal Corporation is without prejudice to the rights and contentions of the parties. It is the duty of the planning authority to obtain the NOC of the Defence for the construction within the vicinity of the Defence establishment. The proposed construction is admittedly within the vicinity of the Defence establishment. (u) Learned Additional Solicitor General submitted a sealed envelop for consideration of this Court on the security aspect. Mr.Godbole, learned counsel for the petitioners made a statement that if this Court is of the opinion that the information made available in the sealed envelope is required to be considered, the Court has ample power to consider such material.

(v) It is submitted by the learned Additional Solicitor General that the restriction imposed for carrying out construction in the building of the petitioners is based on some intelligence report/record. The public interest has to be given importance as against the private interest. The alterations suggested by the petitioners cannot be considered. There has to be uniformity. The respondents have to conduct measures while considering keeping in mind the precautionary measures that have been to be taken while considering the proposal for carrying out (w) It is submitted that though there may be some hardship to the petitioners in view of the rejection of the NOC by the respondent no.2, the petitioners can construct the building outside the shadow and/or shields and within permissible heights. The petitioners did not challenge the validity of the circular immediately. It is not the case of the petitioners that the circular dated 18th May, 2011 does not apply.

(x) Learned Additional Solicitor General relied upon the following judgments in support of the aforesaid submissions:-

(i) The judgment of this Court in case of The Union of

India vs. State of Maharashtra & Ors., (2016) 4 Bom C.R. 549;

(ii) The judgment of this Court in case of M/s.Sunbeam

Enterprises vs. The Municipal Corporation of Greater Mumbai & Ors., in Writ Petition No. 229 of 2018 dated 21st June, 2019;

(iii) The judgment of this Court in case of Ravindra

Mutneja & Ors. vs. Bhavan Corporation & Ors., in Appeal From Order No. 281 of 2022 dated 27th February, 2003;

(iv) The judgment of this Court in case of TCI

Industries Limited vs. Municipal Corporation of Greater Bombay, 2011 SCC OnLine Bom 1671;

(v) The judgment of this Court in case of Hindustan

Petroleum Corporation Ltd. vs. Municipal Corporation of Greater Mumbai, 2012 SCC OnLine Bom 560;

(vi) The judgment of Supreme Court in case of Oswal

Agro Mills Limited vs. Hindustan Petroleum Corporation Limited & Ors., (2014) 2 SCC 491;

(vii) The judgment of this Court in case of Akbar Travel of India (Pvt) Ltd. vs. Union of India & Ors., in Writ Petition No. 656 of 2009 dated 10th June, 2009;

(viii) The judgment of this Court in case of Narangs

International Hotels Private Limited & Anr. vs. Union of India & Ors. in Writ Petition (L) No. 1105 of 2011 dated 17th June, 2011;

(ix) The judgment of Supreme Court in case of

S.P.Chengalvaraya Naidu (Dead) by LRS. vs. Jagannath (Dead) By LRs. & Ors., (1994) 1 SCC 1;

(x) The judgment of Supreme Court in case of Dalip

Singh vs. State of Uttar Pradesh & Ors., (2010) 2 SCC 114;

(xi) The judgment of Supreme Court in case of

Supertech Limited vs. Emerald Court Owner Resident Welfare Association & Ors. with connected matters, 2021 SCC OnLine SC 648;

(xii) The judgment of Calcutta High Court in case of

SKG Pulp & Paper Mills Pvt. Ltd. & Anr. vs. Assistant Provident Fund Commissioner (Compliance) & Ors., 2021 SCC OnLine Cal 436;

(xiii) The judgment of this Court in case of Procter and

Gamble India Ltd. & Anr. vs. Endolabs Limited & Ors., (2000) 3 Bom CR 136;

(xiv) The judgment of Supreme Court in case of Bharat

Singh & Ors. vs. State of Haryana & Ors. with connected matters, (1988) 4 SCC 534;

(xv) The judgment of this Court in case of

S.S.V.Developers & Ors. vs. Union of India & Ors., (2014)

(xvi) The judgment of this Court in case of Provincial

Housings & Property Ltd. vs. Union of India & Ors., (2016) 6 Bom CR 393; (y) Learned Additional Solicitor General also submitted a note to distinguish the judgments relied upon by the petitioners.

19. Mr.Sakhare, learned senior counsel for the Municipal Corporation submitted that the Corporation would leave to the discretion of the Court for passing appropriate order. He submitted that the alternate proposal submitted by the petitioners during the pendency of this petition has been approved by the Corporation subject to the NOC of Defence.

20. Mr.Godbole, learned counsel for the petitioners submitted that after 2011, the Central Government issued only guidelines and not the notification as and by way of pro tem arrangements. He submitted that each and every judgment relied upon by the learned Additional Solicitor General is distinguishable on facts. He submitted that the petitioners have alleged malafide in paragraph (37) of the writ petition. The respondent no.2 has granted NOC in respect of the another building similarly situated after rejection of NOC applied by the petitioners. He tendered a note distinguishing the judgments relied upon by the learned Additional Solicitor General.

21. Learned counsel relied upon the judgments of Supreme Court in case of Satwartna Co-op Housing Society Ltd. & Anr. vs. Bharat Petroleum Corporation Ltd. & Ors. in Civil Appeal No. 3185 of 2022 dated 26th April, 2022 and also judgment of Supreme Court delivered on 8th July, 2022 in case of The Commandant, Ordance Depot vs. The Kolkata Municipal Corporation & Ors., in W.P.A.NO. 13756 of 2021. He submitted that the judgment of this Court in case of Bharat Petroleum Corporation Ltd. vs. Municipal Corporation of Greater Mumbai & Ors. in Writ Petition No. 1515 of 2017 has been reversed by the Supreme Court in case of Satwartna Co-op Housing Society Ltd. & Anr. (supra).

22. It is submitted that the petitioners have demonstrated as to how the building of the petitioners was covered by the shadow and shield by four buildings. In view of the stand taken by the respondents, the petitioners had agreed to close the vision and to make it a part of the RCC structure. The petitioners did not have terrace. The Municipal Corporation has considered the proposal of the petitioners and approved the subject to the NOC of the Defence. There is a vision also from the other adjoining buildings which is totally ignored by the respondent no.2 while rejecting the NOC in favour of the petitioners. He submitted that transitory provisions cannot be for indefinite period.

23. Mr.Singh, learned Additional Solicitor General distinguished the judgment of Supreme Court in case of Satwartna Co-op Housing Society Ltd. & Anr. (supra) on the ground that in this case, the Defence has taken a decision not to grant NOC. He submitted that this Court while exercising the powers under Article 226 of the Constitution of India does not sit in appeal over the decision of the respondent no.2 refusing to grant NOC on the ground of security issue. He submitted that no violation of Article 300A has been committed by the respondents by refusing to grant NOC since the construction as proposed by the petitioners is not permissible in law. He submitted that no particulars of the malafides are given by the petitioners in writ petition. The Court has to see whether there is any illegality committed by the respondents in decision making process and not in the decision. He relied upon the judgment in case of The Union of India Vs. State of Maharashtra & Ors., 2016 SCC OnLine Bom 2570.

24. Insofar as the revised plan submitted by the petitioners is concerned, it is submitted by the learned Additional Solicitor General that the liberty was granted to the petitioners in view of the statement made by the petitioners and without prejudice to the rights and contentions of both the parties. The permission granted by the Municipal Corporation on the said revised plan is not binding on the defence. The security aspect has to be considered by the Defence. This Court has clarified the order granting such permission to the petitioners on 8th December, 2021 that the said decision of the Municipal Corporation was subject to the NOC of the Defence, if required.

REASONS AND CONCLUSIONS:

25. We shall first decide the issue as to whether the Guidelines dated 18/05/2011 or subsequent Guidelines issued by the Central Government have any force of statute or had no binding force and thus the Planning Authority could not have insisted on an NOC from the Defence Authorities before carrying out any construction in the near vicinity.

26. In our view, this Court will have to first find out whether there are any powers under the provisions of the MRTP Act or Development Control Regulations to issue such Guidelines or not.

27. 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 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.

28. 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.

29. 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.

30. 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.

31. 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).

32. We shall now decide the submissions made by learned counsel for the petitioners whether the writ property constructed by the petitioners was “in line with or behind” or “by the shadow or shield” of any existing structures within 500 meters and thus NOC of the Defence Authority was not required.

33. It is also the case of the petitioners that the Naval Depot is surrounded on all four sides by high rise buildings higher than the petitioners’ building. The petitioners have also placed reliance on the Google Map in the affidavit in rejoinder along with photographs.

34. Learned counsel for the petitioners could not dispute that the plot of the petitioners is a curved plot. The construction of the petitioners is coming up at a distance of 375 meters from the North-East side of the Material Organization, Mumbai. There is no dispute that the NOC has been granted to the construction proposed on CTS No.244 to 247 on or about 25/05/2016.

35. The respondents upon a detailed analysis and the site visit found that the construction carried out by the petitioners will have a direct line of sight to core Depot at Material Organization, Mumbai. The construction of the petitioners partially falls in the shadow/shield of four buildings viz. Mukund Society, Neelkanth Dhara, Police Staff Building and New Taj Apartment. However, it is not entirely in the shadow/shield of any building. The proposed construction is partially in the shadow/shield not on the basis of height, but on the basis of width.

36. Mr. Anil Singh, learned Additional Solicitor General made a statement that the petitioners can construct building with shadow/shield and within permissible height. The petitioners, however, did not challenge the validity of the circular dated 18/05/2011 immediately.

37. We are inclined to accept the submission of learned Additional Solicitor General that even if the proposed height is reduced from 32.55 meters to 28.65 meters at par with New Taj Apartment, it would not be correct for the petitioners to canvass that the structure of the petitioners would be in the shadow or shield of said New Taj Apartment. Rather, the factum of whether or not the proposed construction is within the shadow and/or shield of an existing building would be within the domain of the Navy. This Court cannot record any factual finding on this aspect. The Navy being an expert in the field of safety and security and to find out and assess the national security threat has come to the conclusion that the proposed construction is not within the shadow/shield of an existing building. The finding of conclusion drawn by the Navy Establishment cannot be interfered with by this Court.

38. It is the case of the petitioners that there is no threat perception on the ground and that in case of few buildings referred to in paragraph No.10 of this order, NOCs were already granted by the Municipal Corporation and/or the Naval Authorities in the Ghatkopar area, which had direct line of sight to the Naval Depot at Ghatkopar. It is also the case of the petitioners that the Naval Depot is surrounded on all four sides by high rise buildings higher than the petitioners’ building. In our view, Mr. Singh, learned Additional Solicitor General appearing for Union of India is right in his submission that before granting any NOC by any Local Military Authority, a detailed exercise is undertaken in each case based on independent factors. Each construction or each proposal for NOC is viewed independently and separately. The individual factors are duly considered before granting or refusing an NOC. Local Military Authority conducts a physical investigation, which involves not merely an inspection of the proposed site of construction, but an investigation / inspection of the entire neighbourhood.

39. Learned Additional Solicitor General rightly pointed out that the entire procedure has been followed by the authorities before considering whether NOC shall be granted or not to any party for carrying out development in the nearby vicinity, which may affect the security aspect. He rightly pointed out that a detailed assessment/analysis report is prepared by the Local Military Authority, such report is then placed for further consideration before the Headquarters, Western Naval Command, which not only deliberates upon the same but if it deems fit or necessary, may even conduct a physical inspection itself to ascertain the factual position. It is only after the detailed analysis that the Authority evaluates the interest of national security vis-à-vis the Defence Establishment with respect to grant of NOC.

40. We are inclined to accept the submission of learned Additional Solicitor General that only after carrying out a detailed investigation, so as to ascertain, whether permission if any, granted for construction would affect the national security or not, the Local Military Authority insisted for NOC to be obtained by the petitioners before carrying out any construction.

41. In our view, learned Additional Solicitor General is right in his submission that merely because one building, which was of the height of 10 floors had been granted NOC, another building of 10 floors would automatically be entitled to an NOC is not correct. It would not be appropriate to state that merely because four proposed constructions had been granted NOCs, the petitioners are entitled for such an NOC automatically. The respondents have to consider various critical factors on every proposal separately, which may differ between the two constructions, which may otherwise appear similar. We are inclined to accept the submission of learned Additional Solicitor General that all factors are required to be taken into consideration before issuance of grant or rejection of NOC, which would affect national security if such NOC is granted.

42. The respondents have stated to have insisted for NOC also on the ground that several acts breaching the security and safety measures were considered necessary in the wake of such incidents both within India and internationally. The security aspect has to be considered as per the status as on date, of considering the application for NOC and not based on the premise that in the past few other buildings in the nearby vicinity were granted permissions. We accept the statement made by learned Additional Solicitor General that respondent No.6 is in the process of revoking the grant of NOC to the construction proposed on CTS Nos.244 to 247.

43. Admittedly, the petitioners did not apply for any permission from the Local Military Authority before commencement of the construction and without any such permission, commenced

44. Learned counsel for the petitioners did not dispute that the old building was comprising of 4 wings i.e. Wing ‘A’ comprised of ground + 3 floors configuration, Wing ‘B’ comprised of ground + 4 floors configuration, Wing ‘C’ comprised of ground + 2 floors configuration + part terrace and Wing ‘D’ comprised of stilt + four floors configuration, were demolished by the petitioners and petitioner No.2 proposed to construct a single building of four wings in the proposed configuration of basement + stilt + 1 to 9 upper floors configuration. The petitioners were thus required to obtain NOC from the Defence Authority, having proposed to carry out construction beyond a particular height prescribed in the Guidelines/Circulars issued by the Central Government.

45. Mr. Godbole, learned counsel for the petitioners could not dispute that when the petitioners were issued Letter of Intent in the year 2014 or thereafter, the provisions of MRTP Act and Development Control Regulations were in force and were applicable. The petitioners cannot be allowed to take advantage of its own wrong.

46. Insofar as the new proposal submitted by the petitioners for consideration of the respondents is concerned, it is the case of the respondents that the said new proposal was also analyzed by the respondents and after detailed analysis, it was found that the said new proposal also could not be considered due to safety and security threat persisted even at that time.

47. The petitioners heavily placed reliance on the sanction granted by the Municipal Corporation to the new proposal submitted by the petitioners. The said new proposal was allowed to be submitted during the pendency of this petition without prejudice to the rights and contentions of the parties. The reliance thus cannot be placed on the said sanction granted by the Municipal Corporation. Learned counsel for the petitioners could not dispute that the proposed construction is within the vicinity of the Defence Establishment.

48. We are inclined to accept the submission made by learned Additional Solicitor General that the restrictions imposed for carrying out construction of the building of the petitioners are based on some intelligence report/record. The public interest has to be given importance as against the private interest and, thus, in case of any conflict between the public interest and private interest, the public interest would prevail.

49. Learned Additional Solicitor General is right in his submission that the respondents have to conduct measures, while considering the application for NOC keeping in mind the precautionary measures that have to be taken while considering the proposal for carrying out construction. The allegations of mala fides made by the petitioners in paragraph No.37 of the petition are totally vague and without particulars. The allegations of mala fides have to be specific and have to be established.

50. Learned Additional Solicitor General vehemently urged that the respondents could not consider the proposal of the petitioners to close the vision and to make it a part of the RCC structure to obviate any security threat. We are inclined to accept the submission made by learned Additional Solicitor General that closing of such vision would still persist the security threat and could not have been accepted as a permanent solution.

51. Be that as it may, the Defence Authorities are the experts to assess the national security threat and not the petitioners or this Court. The Defence Authorities are the experts in this field and once having formed such opinion based on material before it and intelligence report, the same cannot be substituted by another opinion by this Court by acting as an expert on the security aspect.

52. The suggestion of the petitioners to install Vision Cutters of Aluminium Composite Panels is rejected by the respondents on the ground that it may corrode. Similarly, as the permanent RCC Louvers Vision Cutters proposed by the petitioners are concerned, the Municipal Corporation rightly rejected the said proposal on the ground that the RCC Vision Cutters can also be removed. This Court cannot interfere with the security aspect considered by the respondents and having apprehended such security threats and on that basis rejection of the NOC, cannot be interfered by this Court by exercising discretionary power under Article 226 of the Constitution of India.

53. Insofar as the submission of learned counsel for the petitioners that the Developers have spent more than Rs.12.58 crores on payment of transit accommodation, including corpus and Rs.44.14 crores for construction as of March, 2022 is concerned, in our view, if the petitioners would have obtained permission of the Defence Authorities before carrying out construction or at the time of making application for sanction of the plan for construction of two towers, the petitioners would not have spent any such amount alleged to have spent on transit accommodation or for construction of the building. We are not expressing any view on the issue as to whether the petitioners should be entitled to claim any compensation in view of the respondents not having issued an NOC in favour of the petitioners.

54. In our view, the reliance placed by the petitioners, on the text of the speech of the learned Minister allegedly stating that any building, if existed upto 500 sq. meters, there was no problem in granting permission, is misplaced.

55. We are inclined to accept the submission of learned Additional Solicitor General that the Material Organization, Mumbai, situated at Ghatkopar, is a sensitive and vital unit of the Indian Navy and, thus, the NOC was rightly refused by the respondents in favour of the petitioners. The right to develop is not an unconditional right, but is a right subjected to and depending upon the satisfaction of the terms and conditions contained in the letters of sanction, approval in that behalf and also the planning laws. It was the duty of the Planning Authority to insist for NOC of Defence Establishment, which was required to be obtained by the petitioners at the time of sanctioning the plan submitted by the petitioners.

56. Learned counsel for the petitioners could not distinguish the judgment of this Court in the case of Sunbeam Enterprises (supra), which considered and noted the importance and sensitive nature of the Material Organization, Ghatkopar. The said Material Organization, Ghatkopar also qualifies as a Naval Establishment within the meaning of the term ‘Naval Establishment’ set out in Section 3(12A) of the Navy Act, 1957.

57. This Court cannot direct the defence authorities to compromise the safety and security of the nation. There is no negative equality provided in Article 14 of the Constitution of India. It is for the petitioners to show as to how this construction is permissible despite the security threats.

58. In our view, there is no substance in the submission of the learned 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.

59. 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

60. 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 D.C. Regulation 16 has not been challenged by the petitioners.

61. 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.

62. 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.

63. 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.

64. 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 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

65. 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).

66. Division bench of this Court in case of S.S.V. Developers and Ors. (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.

67. In our view, the reliance placed by the petitioners on the judgments of the Supreme Court in case of F.B. Taraporawala and Ors. Vs. Bayer India Ltd. & Ors. (supra), in case of B.K. Ravichandra & Ors. Vs. Union of India & Ors. (supra) and in case of Canara Bank Vs. N.G. Subbaraya Setty & Anr. (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.

68. This Court in case of Union of India Vs. State of Maharashtra and Ors. (Adarsh Co-operative Housing Society Ltd. case) (supra) had 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.

69. 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 and Ors. (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 Regulation 16 of the D.C. Regulations.

70. 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.

71. 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 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.

72. 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 Vs. State of Maharashtra and Ors. (Adarsh Co-operative Housing Society Ltd. case) (supra) are applicable to the facts of this case.

73. This Court in case of M/s.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.

74. 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 granting such permission.

75. We are of the view that this Court cannot lose sight of the fact that indeed the time has changed. Terrorism is on the rise and the State is no longer fighting a known enemy. 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. The assessment of such threats has heightened and accordingly the necessary precautionary measures have to be taken against them.

76. 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.

77. Insofar as the submission of the petitioners that the flat purchasers are affected because of NOC not having been granted by the respondents is concerned, this aspect has been considered by this Court in Adarsh Society (supra) and has been rejected. The petitioners are solely responsible for this situation and not the respondents.

78. The Supreme Court in case of Rai Sahib Jawaya Kapur & Ors. (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 carrying out of these laws.

79. The Supreme Court in case of M/s.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 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 when the building was constructed upto 19th floor was constructed.

80. Insofar as the judgment of the Supreme Court in case of Satwaratna Co.op Housing Society Ltd. & Anr. Vs. 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 Vs. 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. & Anr. Vs. 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.

81. The Supreme Court in case of Satwaratna Co.op Housing Society Ltd. & Anr. Vs. 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 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.

82. 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.

83. Insofar as the judgment of Calcutta High Court in the case of The Commandant, Ordinance Depot (supra) relied upon by Mr. Godbole, learned counsel for the petitioner is concerned, the facts before the Calcutta High Court were totally different. Various judgments of this Court and the Supreme Court relied upon by learned Additional Solicitor General in this matter were not cited before the Calcutta High Court. The provisions of the Calcutta Municipal Corporation Act and Calcutta Municipal Corporation Building Rules pressed into service by the parties were totally different. The said judgment is clearly distinguishable on facts and it does not advance the case of the petitioners.

84. Insofar as the judgment of this Court in the case of Sea Kunal Corporation Pvt. Ltd. (supra) relied upon by Mr. Godbole, learned counsel for the petitioners is concerned, a perusal of the said judgment indicates that the said judgment does not deal with the circular dated 18/03/2015. In this case, the Navy has specifically asserted that the proposed construction is not entirely within the shadow and/or shield of any existing building and, hence, is not entitled to seek any benefit of the said Circular dated 17/11/2015. The said judgment of this Court in the case of Sea Kunal Corporation Pvt. Ltd. (supra) has been distinguished by this Court in the case of Sun Beam Enterprises (supra).

85. Insofar as the judgment of this Court in Tirandaz Subha Niketan Co-operative Housing Society Limited (supra) is concerned, this Court in the said judgment has held that the Naval Housing Colony was not a sensitive Defence Establishment. The petitioners have not disputed that the Material Organization, Ghatkopar is a sensitive Defence Establishment. The said judgment of this Court is thus clearly distinguishable on facts.

86. Insofar 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.

87. In the present case, there is no notification under WODA. In a catena of decisions by this Court, it is already held that the notification under WODA is not the only source for issuing such directives in public interest. This Court also after considering the provisions of Section 46 of the MRTP Act and various provisions of the Development Control Regulations, which are applicable, had held that under those provisions, the Planning Authority could not have sanctioned the plan in absence of any NOC having been granted by the Defence Establishment.

88. Insofar as the judgment of the Rajasthan High Court in the case of S.R. Land Square Pvt. Ltd. (supra), relied upon by Mr. Godbole, learned counsel for the petitioners is concerned, the said judgment would not apply to the facts of this case. The facts considered by the Rajasthan High Court were totally different. In this case, the Navy has specifically found that the proposed construction would have a direct line of sight to the core depot at Material Organization, Ghatkopar and thus grant of NOC would be contrary to the Guidelines on national security thereat and would not be feasible.

89. Insofar as the judgment of the Delhi High Court in the case of GNCT of Delhi (supra) is concerned, in the said judgment, the Delhi High Court considered the case of Military Establishment. The said judgment was not dealing with a Naval Establishment. The Guidelines dated 21/10/2016 applies and enlists only army units. This Court has already held in Sun Beam Enterprises (supra) that the Guidelines dated 21/10/2016 would not apply to Naval Establishments.

90. Insofar as the judgment of the Kerala High Court in M.P. Hussain Kuhi (supra) relied upon by Mr. Godbole, learned counsel for the petitioners is concerned, in the said judgment the Kerala High Court dealt with a Military Establishment and not of Navy Establishment. This judgment is also distinguishable on the same ground on which the judgment of the Delhi High Court in GNCT of Delhi (supra) is distinguished.

91. Insofar as the judgment of Kerala High Court in Fathimathul Raseena (supra) relied upon by Mr. Godbole, learned counsel for the petitioners is concerned, in that matter, the defence had clarified before the High Court that on a subsequent assessment of the security requirements, the construction activities of the petitioner therein were found to be not objectionable. The said judgment was based on the concession made by the Defence Authorities as is obvious on a plain reading of the said judgment. The said judgment is thus clearly distinguishable on facts.

92. During the course of the argument, at the fag end, learned Additional Solicitor General tendered a sealed envelope stating that the said confidential report can be perused by this Court relating to security aspect in the present matter. Mr. Godbole, learned counsel for the petitioners fairly stated that such report can be perused by this Court if it deems fit.

93. We have accordingly perused the said confidential report, which indicates that if any such construction is permitted, it will have serious security threat to the Material Organization, Ghatkopar, considering the nature of activities being carried on in the said Depot.

94. For the reasons recorded aforesaid, we are of the view that there is no infirmity in the action on the part of the respondents in refusing the NOC in favour of the petitioners to carry out the proposed construction.

95. The powers of the writ court under Article 226 of the Constitution of India are limited to interfere with such decisions taken by the experts, who have to take a decision whether a particular NOC would be in public interest or would pose any national security threat or not.

96. We accordingly pass the following order:- O R D E R

(i) Writ petition is dismissed. Rule is discharged.

(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.