Noc: Post-Adarsh Circular for Defence NOC confers no right to stop ongoing, already made constructions: HC | India News
MUMBAI: The Bombay high court has held that defence ministry’s no objection certificate (NOC) was not essential under a 2011 circular and others issued later, post-Adarsh case, before construction nod could have been given by the Pune Municipal Corporation (PMC) to a builder at Lohegaon near Unit of Southern Command Composite Signal Regiment (SCCSR).
The HC said, “these circulars,’’ do not confer any right upon the Centre to seek any prohibition upon ongoing construction and even demolition of the construction of the building already made, held the bench of Justices S B Shukre and M W Chandwani and dismissed a petition filed by the Centre against the permissions granted by PMC in 2008 for the highrise.
The builder was making a 49 meter –over 160 feet high or a roughly 15-storeyed–commercial high-rise called ‘Ganga Trueno’ near the boundary of the Military establishment, a cause for concern argued the Ministry’s counsel, former additional solicitor general Anil Singh.
The Centre filed the petition only in 2021, after a huge delay and after the Occupancy Certificate (OC) was ready to be issued for the building, said the Builder’s senior counsel Milind Sathe. The HC which had stayed the OC issuance, now directed the PMC to issue it in eight weeks.
On merits, the HC held that the 2011 defence circular and its subsequent modified iterations of 2015, do not affect the construction of ‘Ganga Trueno’’ in any manner. The judgment pronounced on October 23 was uploaded to the HC website on Thursday.
The HC held that these circulars are “not even in nature of executive instructions’’ but rather fall under the category of “only departmental circulars binding on the officers of the department and not outsiders or third parties’’ and hence cannot be relied on by the Centre to attempt to restrict the rights–including right to construct on its land based on permissions granted by competent authorities.
In a separate interim plea argued by senior counsel G S Godbole, intervenors who purchased some of the commercial premises in the building sought orders to protect their rights.
The HC said the circular would show that “the exemption granted to the buildings constructed or being constructed as per the permission granted before 18th May 2011 shall continue to operate.’’ Hence, “even under the circulars dated 17th November 2015 and 21st October 2016, no NOC is required where development permission is granted before 18th May 2011,’’ held the HC.
The builder was already granted permission in 2008 with commencement certificate issued on August 8, 2008, observed the HC and said hence clearly the work on the high rise is unaffected by the Central Circulars.
The 2011 guidelines for issuance of NOC for building constructions said, “Of-late, issue of NOC for construction on lands adjacent to Defence Establishments has generated avoidable controversies, particularly in two recent cases, –Sukna and Adarsh.’’ The guidelines called for a NOC to “strike a balance between security concerns of the forces and the right of the public to construct on their land.
The circular required a Station Commander to refer a matter to his immediate higher authority if he felt that any construction coming up within 100 mtrs. (for multi-storey buildings of more than four storeys, the distance shall be 500 meters) radius of Defence Establishment could be a security hazard.
The Defence Ministry’s grievance was that the PMC had permitted Kappa Realtors to construct at Lohegaon in close proximity to SCCSR and sought orders to restrain the builder from any construction within 100 metres of the defence structure’s boundary.
The builder opposed citing delay in filing of petition. The HC said since violation of Defence Ministry circulars is of public importance the matter required to be decided on merits.
On merits, the HC added, that all the circulars “are in the nature of guidelines and none of them appears to be issued in the name of the “President”.’’ The HC noted that Article 77(1) of the Constitution of India mandates that all executive actions of the Government of India shall be expressed to be taken in the name of the “President”.
The HC added, “we have no hesitation to hold that all the afore stated circulars, which have been relied upon by the petitioner, not having been issued in the name of the President, as mandated by Article 77(1) of the Constitution of India, have not culminated into an order affecting right of the petitioner to enjoy his property as per his free will, subject to limitations of law.’’
Elucidating on the aspect of right to property, the bench said that the Bombay HC had “held that right to property under Article 300A of the Constitution of India is a valuable right, equated with a human right, and it enables a property owner to enjoy his property as per his free will, though within the limits of law operating in the field. This court further took the view, in deference to the said case law, that right to property under Article 300A of the Constitution of India includes right to construct a building and if any restrictions are to be imposed upon the same, it can be done only by authority of the law.’’
It also said, “when a Central or a State Legislation occupies the field, the field of placing restrictions upon right to enjoy land or property situated in the vicinity of Defence Establishments, no restrictions can be imposed upon right to enjoy property by a mere executive instruction and if at all they are to be imposed, they must be imposed by following the procedure prescribed in the legislation occupying the field.’’
The HC said, “these circulars,’’ do not confer any right upon the Centre to seek any prohibition upon ongoing construction and even demolition of the construction of the building already made, held the bench of Justices S B Shukre and M W Chandwani and dismissed a petition filed by the Centre against the permissions granted by PMC in 2008 for the highrise.
The builder was making a 49 meter –over 160 feet high or a roughly 15-storeyed–commercial high-rise called ‘Ganga Trueno’ near the boundary of the Military establishment, a cause for concern argued the Ministry’s counsel, former additional solicitor general Anil Singh.
The Centre filed the petition only in 2021, after a huge delay and after the Occupancy Certificate (OC) was ready to be issued for the building, said the Builder’s senior counsel Milind Sathe. The HC which had stayed the OC issuance, now directed the PMC to issue it in eight weeks.
On merits, the HC held that the 2011 defence circular and its subsequent modified iterations of 2015, do not affect the construction of ‘Ganga Trueno’’ in any manner. The judgment pronounced on October 23 was uploaded to the HC website on Thursday.
The HC held that these circulars are “not even in nature of executive instructions’’ but rather fall under the category of “only departmental circulars binding on the officers of the department and not outsiders or third parties’’ and hence cannot be relied on by the Centre to attempt to restrict the rights–including right to construct on its land based on permissions granted by competent authorities.
In a separate interim plea argued by senior counsel G S Godbole, intervenors who purchased some of the commercial premises in the building sought orders to protect their rights.
The HC said the circular would show that “the exemption granted to the buildings constructed or being constructed as per the permission granted before 18th May 2011 shall continue to operate.’’ Hence, “even under the circulars dated 17th November 2015 and 21st October 2016, no NOC is required where development permission is granted before 18th May 2011,’’ held the HC.
The builder was already granted permission in 2008 with commencement certificate issued on August 8, 2008, observed the HC and said hence clearly the work on the high rise is unaffected by the Central Circulars.
The 2011 guidelines for issuance of NOC for building constructions said, “Of-late, issue of NOC for construction on lands adjacent to Defence Establishments has generated avoidable controversies, particularly in two recent cases, –Sukna and Adarsh.’’ The guidelines called for a NOC to “strike a balance between security concerns of the forces and the right of the public to construct on their land.
The circular required a Station Commander to refer a matter to his immediate higher authority if he felt that any construction coming up within 100 mtrs. (for multi-storey buildings of more than four storeys, the distance shall be 500 meters) radius of Defence Establishment could be a security hazard.
The Defence Ministry’s grievance was that the PMC had permitted Kappa Realtors to construct at Lohegaon in close proximity to SCCSR and sought orders to restrain the builder from any construction within 100 metres of the defence structure’s boundary.
The builder opposed citing delay in filing of petition. The HC said since violation of Defence Ministry circulars is of public importance the matter required to be decided on merits.
On merits, the HC added, that all the circulars “are in the nature of guidelines and none of them appears to be issued in the name of the “President”.’’ The HC noted that Article 77(1) of the Constitution of India mandates that all executive actions of the Government of India shall be expressed to be taken in the name of the “President”.
The HC added, “we have no hesitation to hold that all the afore stated circulars, which have been relied upon by the petitioner, not having been issued in the name of the President, as mandated by Article 77(1) of the Constitution of India, have not culminated into an order affecting right of the petitioner to enjoy his property as per his free will, subject to limitations of law.’’
Elucidating on the aspect of right to property, the bench said that the Bombay HC had “held that right to property under Article 300A of the Constitution of India is a valuable right, equated with a human right, and it enables a property owner to enjoy his property as per his free will, though within the limits of law operating in the field. This court further took the view, in deference to the said case law, that right to property under Article 300A of the Constitution of India includes right to construct a building and if any restrictions are to be imposed upon the same, it can be done only by authority of the law.’’
It also said, “when a Central or a State Legislation occupies the field, the field of placing restrictions upon right to enjoy land or property situated in the vicinity of Defence Establishments, no restrictions can be imposed upon right to enjoy property by a mere executive instruction and if at all they are to be imposed, they must be imposed by following the procedure prescribed in the legislation occupying the field.’’
