Gorakhnath Shankar Nakhwa & Ors. v. The Municipal Commissioner of Municipal Corporation of Greater Mumbai & Ors.

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 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 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.

29. On 22/01/2020, respondent No.6 addressed a letter to 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.

30. On 05/02/2020, respondent No.2 addressed a letter to 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.

31. On 13/02/2020, respondent No.6 addressed a letter to 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.

32. On 14/02/2020, respondent No.2 addressed a letter to respondent No.6, reiterating the direction issued on 23/02/2018 to 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.

33. On 19/03/2020, respondent No.2 addressed a letter to 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 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.

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 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.

48. Learned senior counsel for the petitioners placed reliance on 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 & Ors. v. Bayer India Limited & Ors. (1996) 6 SCC 58 (b) B.K. Ravichandra & Ors. v. Union of India & Ors.

(c) Canara Bank v. N.G. Subbaraya Setty & Anr.

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 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 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 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 & Ors. (“Adarsh Case”) 2016 SCC OnLine Bom 2570.

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 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 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. (a) TCI Industries Limited v. Municipal Corporation of Greater Bombay 2011 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 & Ors. v. Union of India & Ors.

(d) The Union of India v. State of Maharashtra &

Ors. (Adarsh Case) 2016 SCC OnLine Bom 2570 (e) M/s. Sunbeam Enterprises v. The Municipal Corporation of Greater Mumbai & Ors Judgment of Bombay High Court dated 21/06/2019 in Writ (f) Amrit Banaspati Co. Ltd. v. Union of India & Ors. AIR 1995 SC 1340 (g) Akbar Travel of India (Pvt.) Ltd. v. Union of India & Ors. 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 & Ors. 2011 SCC OnLine Bom 727

(i) Oswal Agro Mills Limited v. Hindustan

Petroleum Corpn. Ltd. & Ors. (2014) 2 SCC 491 (j) Ravindra Mutenja & Ors. v. Bhavan Corporation & Ors. 2003 SCC OnLine Bom 241 and (k) Supertech Ltd. v. Emerald Court Owner Resident Welfare Association & Ors. 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 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 2012whereby 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 & Ors. v. State of Punjab 1955) 2 SCR 225 and M/s. Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir & Anr., 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.

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 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 & Ors. v. Bar Council of Kerala & Ors. (1993) 3 SCC 422, (b) S.N. Rao & Ors. v. State of Maharashtra, (1988) 1 SCC 586,

(c) Bishambhar Dayal Chandra Mohan & Ors. v.

(d) Hindustan Times & Ors. v. State of U.P. & Anr.

(e) State of W.B. & Ors. vs. Sujit Kumar Rana (2004) 4 SCC 129, (f) Hari Krishna Mandir Trust v. State Maharashtra & Anr. (2020) 9 SCC 356, (g) State of Bihar & Ors. v. Project Unchcha Vidya, Sikshak Sangh & Ors. (2006) 2 SCC 545, (h) P.H. Paul Manoj Pandian v. P. Veldurai (2011) 5 SCC 214,

(i) Association of International Schools & Principals

(l) Sukh Datta Ratra & Anr. v. State of Himachal

(m) Pharmacy Council of India v. Rajeev College of

Pharmacy & Ors. (2022) SCC OnLine 1224, (n) Satwaratna Co-Operative Housing Society Limited & Anr. v. Bharat Petroleum Corporation Ltd. & Ors. (Special Leave Petition (C) No.3185 of 2022, dated 26th April, 2022 and (o) Bharat Petroleum Corporation Ltd. v. Municipal Corporation of Gr. Mumbai & Ors. (Writ Petition no.1515 of 2017, dated 25th April, 2019.

100. Learned senior counsel for the petitioners placed reliance on the judgments of the Supreme Court in the case of Satwaratna Co-operative Housing Society Limited & Anr. v. Bharat Petroleum Corporation Limited & Ors. 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 & Ors., Judgment dated 25/04/2019 in Writ Petition No.1515 of 2017which has been referred to and relied upon in the subsequent judgments of this Court, which 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 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.

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 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 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 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 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.

121. 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.

122. 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.

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 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 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.

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

127. 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.

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 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 M/s.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 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 & Ors. (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 law laid down by the Supreme Court in case of Bharat Singh & Ors. (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 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 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 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 & 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 implementation of those laws.

145. 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 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 & Ors. (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 vs. 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 Vs. N.G. Subbaraya Setty & Anr. (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.

149. In so far 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.

150. 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. 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 & Ors. (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 & Ors. (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 & Ors. 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/s 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 and circumstances cannot be ignored since the same have to be seen in the public interest as opposed to private interest.

154. In so far as the judgment of the Supreme Court in case of Hindustan Times & Ors. v. State of U.P. & Anr. 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. & Ors. Vs. Sujit Kumar Rana (supra), Hari Krishna Mandir Trust v. State Maharashtra & Anr. (supra), B.K. Ravichandra & Ors. Vs. Union of India (supra) & Sukh Dutt Ratra & Anr. vs. State of Himachal Pradesh & Ors. (supra) would not apply to the facts of this case for the similar reasons.

155. In so far as the judgment of the Supreme Court in case of State of Bihar & Ors. v. Project Unchcha Vidya, Sikshak Sangh & Ors. (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 & Anr. v. State of Maharashtra & Ors. (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.

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 & Ors. (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 & Ors. (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 Vs. Rajeev College of Pharmacy & Ors. (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 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.