Bombay High Court
Techno Freshworld Llp vs Maharashtra Housing And Development … on 5 May, 2026
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
WPL-36387-25.DOC
2026:BHC-OS:11560-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L.) NO. 36387 OF 2025
WITH
INTERIM APPLICATION (L.) NO. 2186 OF 2026
Techno Freshworld LLP, )
A Limited Liability Partnership )...Petitioner
Vs
1. Maharashtra Housing and Area Development )
Authority )
2. Executive Engineer, Building Permission, MHADA )
3. Union of India, Ministry of Defence through )
(a) The Flag Officer, Commanding-in-Chief )
Western Naval Command. )
(b) The Commander, Executive Officer, )
INS Trata )
4. Prabhadevi Indraprastha Co-op. Housing )
Society Ltd. )...Respondents
_________
Mr. Ravi Kadam, Senior Advocate with Mr. Rohan Kadam, Mr. Sanjay Udeshi,
Mr. Aditya Udeshi and Mr. Rahul Sanghavi i/b. M/s. Sanjay Udeshi & Co. for
Petitioner.
Mr. P. G. Lad with Ms. Sayali Apte, Mr. Murlidharan Kalathil for Respondent
Nos.1 & 2/MHADA.
Mr. Rajshekar Govilkar, Senior Advocate with Mr. Krishnakant Deshmukh and
Ms. Shaba Khan for Respondent No.3.
Mr. Rohaan Cama with Mr. Shishir Joshi and Ms. Priti Shukla i/b. Ms. Priti Joshi
for Respondent No.4.
Cdr. Himanshu Sharma, INS Trata, Cdr. Archit Thorat, HQWNC and Cdr.
Aditya Deep Singh, HQWNC Officers are present in Court.
__________
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
RESERVED ON : 28 JANUARY 2026.
PRONOUNCED ON : 5 MAY, 2026
____________
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JUDGMENT (Per G. S. Kulkarni, J.).
1. This petition under Article 226 of the Constitution of India again
brings to the fore and resurrects the issue on a mandatory ‘NOC’ to be obtained
from the Naval Authorities (INS Trata, Worli), in the present case in regard to
construction of two buildings. The first building is a completed construction
which would rehabilitate 72 members of respondent No.4-society. The second
building is at the final stage of completion which is a sale building. The action
impugned in the present petition is of respondent No.1-Maharashtra Housing
and Area Development Authority (MHADA) issuing a stop work notice as also
denying Occupation Certificate for want of NOC from the defence / Navy in
undertaking such construction. Such issue has not reached the Court for the first
time, considering the decisions of this Court and view taken by this Court in a
series of judgments, not accepting the stand of the respondent-Navy, as also, the
Supreme Court confirming the decision of this Court in the case of Union of
India vs. The State of Maharashtra & Ors. 1 by rejecting the Special Leave
Petition.
2. This writ petition impugns the action of Respondent Nos.1 and 2 in
issuing the stop work notice dated 24 October 2025 (received by the Petitioner
on 28 October 2025), whereby, despite having granted development permissions
from time to time by the Planning Authority, such as MHADA, the petitioner has
been ordered to halt construction for want of submission of a Naval NOC from
1 Writ Petition No. 3145 of 2021 decided on 23 October, 2023
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respondent No.3, purportedly as a pre-condition for the construction.
3. The facts relevant to the adjudication of the present proceedings are:
The Petitioner is a Limited Liability Partnership incorporated under the
Limited Liability Partnership Act, 2008. Respondent Nos.1 to 3 are authorities
within the meaning of Article 12 of the Constitution of India and Respondent
No.4 is a co-operative housing society registered under the Maharashtra Co-
operative Societies Act, 1960 and is the lessee of the plot bearing C.S. No. 209
(Part) of Worli Division admeasuring 1601.25 sq. mtrs., which has been
redeveloped by the Petitioner.
4. The Brihanmumbai Municipal Corporation (for short “the BMC”) is the
owner of a larger piece of land bearing C.S. No. 209 of Worli Division situated at
the junction of Balaji Temkar Marg and New Prabhadevi Road, Worli, Mumbai
400030. The Maharashtra Housing and Area Development Authority
(MHADA) is the lessee of the said land. The Maharashtra Housing Board, the
MHADA’s predecessor developed a layout known as “Adarsh Nagar” on the said
larger piece of land. In the process, MHADA constructed a building on a portion
of the said larger land being C.S. No. 209 (Part) admeasuring 1601.25 sq. mtrs.
or thereabouts (hereinafter referred to as “the said Land”), which is known as
“Building No. 41” containing 72 residential units for accommodation of
industrial workers on tenancy basis (hereinafter referred to as “the said Old
Building”). The said Land and the said Old Building are collectively referred to as
“the said Property”.
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5. In the year 1981, MHADA’s tenants who were occupying the said Old
Building formed, Respondent No. 4 co-operative housing society, known as
“Prabhadevi Indraprastha Co-operative Housing Society Limited registered
under the provisions of the Maharashtra Co-operative Societies Act, 1960. By a
Deed of Sub-Lease dated 10 June 2009, MHADA granted sub-lease of the said
Land to Respondent No.4 for a period of 99 years commencing from 1 April
1980 and simultaneously, by a Deed of Sale of even date, sold the said Old
Building to Respondent No.4.
6. The said Old Building which was constructed in or about the year 1953,
had become dilapidated. Respondent No.4, considering the larger interest of 72
families residing therein, decided to undertake redevelopment of the said
Property under Regulation 33(5) of the Development Control and Promotion
Regulations for Greater Mumbai, 2034 (for short “DCPR-2034”) by appointing
the Petitioner as the developer. Accordingly, a Development Agreement dated 31
March 2022 and a Power of Attorney dated 11 April 2022 were executed
between the parties followed by a tripartite agreement dated 17 June 2022 with
MHADA granting redevelopment rights to the Petitioner.
7. The Petitioner obtained BMC DP Remarks dated 31 December 2020,
which indicated that the larger land bearing C.S No. 209 falls within Coastal
Regulation Zone (CRZ). As the remark pertained to the larger land which is
located at the landward side of the Mahim Bay, and not specifically to the said
Land, on the request of Respondent No. 1, the Petitioner approached the
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Institute of Remote Sensing, Anna University, Chennai (IRS Chennai) to get the
local level CRZ map prepared and thereby ascertain the shortest distance between
the High Tide Line (HTL) of the Mahim Bay and the said Land. Additionally,
the Petitioner also requested the IRS, Chennai to ascertain the distance of the said
Land from the Defence Establishments within the vicinity. Accordingly, by its
report dated 24 August 2021 IRS Chennai certified that the said Land is
completely outside CRZ, with a distance of 505.61 meters from the High Tide
Line, and further recorded that the said Property is situated at a distance of
528.82 meters from INS Trata, the Defence Establishment mentioned in the
New Defence Circular. The Petitioner submitted the said report with the
Executive Engineer Building Permission (EE-BP) Cell for its consideration, while
dealing with the Petitioner’s proposal. Also the IRS Chennai’s findings as
recorded in the said report were accepted by the EE- BP Cell, Respondent No. 2
herein.
8. On such conspectus, it is necessary to briefly set out the regulatory
position governing constructions in the vicinity of defence establishments which
has evolved over time. While the Works of Defence Act, 1903 provides for
imposition of statutory restrictions through notified declarations, in cases where
no such notifications exist, the Ministry of Defence issued executive guidelines
from time to time. Circular dated 18th May, 2011, as modified on 18th March,
2015 and 17th November, 2015, inter alia, prescribed a requirement of obtaining
NOC for constructions within specified distances, in certain cases up to 500
meters. These guidelines were later clarified by letter dated 4 th April, 2016 issued
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by the Hon’ble Defence Minister to the Hon’ble Chief Minister of Maharashtra,
stating that in the absence of a response from the Local Military Authority
(LMA), it shall be a deemed no objection, and that the final decision rests with
the State Government or municipal authority. The said guidelines were thereafter
superseded by circular dated 23 rd December, 2022, which restricted the NOC
requirement to constructions within 50 meters of specified defence
establishments. However, the said circular was kept in abeyance by a further
circular dated 23rd February, 2023. Consequently, it is contended that presently
no operative circular or executive guideline governs the requirement of NOC in
respect of constructions beyond the scope of statutory enactments.
9. Thereafter, the petitioner proposed to construct two buildings on the said
Land viz., a rehab building containing residential units for re-accommodation of
members of Respondent No. 4 – society and a “sale building” containing
residential/non-residential units for sale in the open market.
10. The Petitioner accordingly submitted its proposal dated 17 June 2022 to
the EE-BP Cell, which was approved and an Intimation of Approval (IOA) dated
26 July 2022 was granted. Thereafter, the Petitioner executed agreements with all
72 members of Respondent No.4, and shifted them to transit accommodation
between September, 2022 and November, 2022 by paying the agreed amount of
transit rent and other charges, and demolished the old building.
11. Upon compliance with IOA conditions, the Petitioner applied to the
Executive Engineer (EE), Building Permission Cell for Commencement
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Certificate (CC) and which was granted on 3 February 2023 to the petitioner to
carry out the work of shore piling.
12. It is contended by the petitioners that the Commencement Certificate did
not mandate obtaining permission from the Defence Establishment, as even
Respondent Nos.1 and 2 were aware that under the New Defence Circular, the
requirement of an NOC was only for construction within 50 meters, whereas the
construction in the present case, according to the petitioner, is beyond 50 meters
(it was at 528.02 meters). Respondent Nos.1 and 2, therefore, consciously and
knowingly did not impose any such condition for obtaining an NOC from the
Defence Establishment for construction on the said Land.
13. In the meanwhile, the Petitioner completed the shore piling work and the
Executive Engineer, Building Permission Cell, by his letter dated 12 April 2023,
granted Commencement Certificate for the work up to the top of stilt level for
the rehab building and up to the 6th level podium for the sale building. The
Petitioner completed the rehab building up to the top of stilt level in or around
the end of November, 2023 and thereafter, vide its architect’s application dated
29th November, 2023 submitted on 6th December, 2023, applied for further
Commencement Certificate upto the terrace top.
14. It is the petitioner’s case that the Executive Engineer, Building Permission
Cell, for no reason, abstained from processing the application as per the
procedure under Regulation No. 11(4) of the Development Control and
Promotion Regulations for Greater Mumbai, 2034 (for short ‘DCPR 2034’) and
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kept the same pending beyond the statutory period of 15 days despite follow-ups.
The petitioner contends that under Regulation No.11(4) of the DCPR 2034,
further Commencement Certificate was deemed to have been granted on 21st
December, 2023, upon expiry of 15 days from 6th December, 2023, and
accordingly, the Petitioner’s architect, by letter dated 21 December, 2023,
confirmed compliance and requested permission to proceed further.
15. It is thus the petitioner’s case that, a statutory right had accrued in the
Petitioner’s favour to carry on further work of the rehab building from 21
December 2023; however, to avoid any frictions and complexities, the petitioner
further awaited formal grant of a Commencement Certificate. As the work
remained standstill causing delay in rehabilitation of 72 families, Respondent
No.4, by letter dated 11th January, 2024 (served on 12th January, 2024),
requested early grant of further Commencement Certificate up to terrace top.
16. After keeping the application pending for more than two months, the
Executive Engineer, Building Permission Cell, on 9 th February, 2024, purported
to reject the further Commencement Certificate for the rehab building for
undisclosed reasons. It is contended by the petitioner that as the said rejection
note did not record any reasons, the same is non-est and of no effect in law in
view of Regulation No. 11(4).
17. The Petitioner, without prejudice to the rights under Regulation No.
11(4), submitted a fresh application on 12 th February, 2024 for further
Commencement Certificate for the rehab building, as recorded in the EE-BP
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Cell’s note-sheet dated 9th February, 2024. However, the EE-BP Cell neither
inspected the work nor communicated any decision within 15 days, and
accordingly, further Commencement Certificate stood deemed to have been
granted on 27th February, 2024.
18. The Petitioner in such circumstances on 5 March 2024, approached this
court by filing Writ Petition No. 1437 of 2024 praying for necessary directions.
In such proceedings, Respondent Nos.1 and 2 made a statement before this Court
that the Petitioner’s application shall be decided within 15 days from 20 March
2024 and accordingly the proceedings were posted to 15th April, 2024. Pursuant
thereto, Respondent Nos.1 and 2 processed the application and granted further
Commencement Certificate on 5 April, 2024, for full rehab construction, in view
of which the said petition was disposed of by an order dated 15th April, 2024. It
is the petitioner’s case that on none of these occasions did Respondent Nos.1 and
2 insist on obtaining any NOC from Naval authorities and in fact granted
permissions from time to time.
19. Thereafter, pursuant to the Petitioner’s application, further
Commencement Certificate up to the 21st floor of the sale building was granted
by Respondent No.1 by its letter dated 30 May 2024, and by a communication
dated 3rd October, 2024, Respondent No.1 approved the amended plan
submitted by the Petitioner. Respondent No.1 thereafter granted further
Commencement Certificate for undertaking construction of one additional floor
in the rehab building by its communication dated 23rd October, 2024, and on
the Petitioner’s application, an amended IOA was issued on 25th February, 2025.
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20. It is the petitioner’s case that Respondent No.2, however by a
communication dated 14th July, 2025, informed the Petitioner that the Naval
Officers had instructed Respondent No.1 to issue a “stop work notice” in respect
of the construction on the said land and called upon the Petitioner to furnish its
say.
21. The Petitioner, by its letter dated 14th July, 2025, responded to the said
communication, specifically pointing out, that at the time of grant of
Commencement Certificate (CC), the applicable new Defence Circular dated 23
December 2022 required permission only for construction within 50 meters of
the Defence Establishment and, as the present construction is beyond such
distance, no NOC from Naval authorities was required, and raised other
objections. Respondent No.1, being satisfied with the Petitioner’s response, issued
full Commencement Certificate on 11 th August, 2025 even for the sale building
without insisting on obtaining any NOC from Naval authorities.
22. Thereafter, the Petitioner completed construction of the entire rehab
building and made an application on 28th August, 2025 for grant of Occupation
Certificate. The said application came to be rejected on 10 th October, 2025 on
certain technical compliances, none of which pertained to any requirement of
obtaining a Naval NOC. The Petitioner complied with the said objections and
re-submitted the application on 16th October, 2025; however, on 29th October,
2025, for the first time, Respondent No.1 rejected the application on the ground
that an NOC from Naval authorities was required.
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23. However, despite the above, Respondent No.1, by its communication
dated 24th October, 2025 (a copy whereof was received by the Petitioner on 28
October 2025), issued the impugned communication on the ground that the
Petitioner had not obtained a Naval NOC. The said communication referred to a
letter dated 2nd September, 2025 addressed by Respondent No.3 to Respondent
No.1, however, although it was stated to be enclosed, the same was not furnished
to the Petitioner. The Petitioner was therefore constrained to immediately
respond by its letter dated 28th October, 2025, inter alia calling upon
Respondent No.1 to provide a copy of the said communication.
24. In response thereto, Respondent No.1 did not furnish a copy of the letter
dated 2nd September, 2025. The Petitioner was therefore constrained to obtain
the same under the provisions of the Right to Information Act, 2005.
Accordingly, the Petitioner made an application seeking copies of
communications exchanged between Respondent Nos.1 to 3 and obtained the
relevant documents from Respondent No.1.
25. On perusal of the said documents, the Petitioner learnt that Respondent
No.3 had, even prior to 2nd September, 2025, i.e. in or around November-
December 2023, objected to the construction activities and had called upon
Respondent No.1 to issue a stop work notice; however, Respondent No.1, by its
letter dated 18th December, 2023, refused to do so. It was further revealed that
pursuant to the communication dated 2 nd September, 2025, a joint meeting was
held between Respondent Nos.1 and 3 on 7 th October, 2025, wherein the Vice
President and the Chief Officer of respondent No.1 informed that issuance of a
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stop work notice would amount to contempt of this Court’s orders, nonetheless,
Respondent No.1 proceeded to issue the impugned communication.
26. It is the petitioner’s case that by issuance of the impugned stop work
notice, Respondent Nos.1 and 2 have clearly disclosed their intention not to
grant Occupation Certificate in respect of the rehab building and/or to process
any further development permissions for the sale building, rendering it futile for
the Petitioner to request the Respondents to act in accordance with law and
discharge their statutory duties under the Maharashtra Regional and Town
Planning Act, 1966 read with the Development Control Regulations, 2034.
27. In the aforesaid circumstances, the Petitioner has filed the present petition
praying for the following substantive reliefs:
“a. Issue a writ of Certiorari and/or a writ in the nature of
Certiorari and/or any other appropriate order, writ or direction under Article
226 of the Constitution of India, calling for the records leading upto the
issuance of the Impugned Stop Work Notice dated 24 October, 2025 (at
Exhibit W) and after examining its legality and/or propriety thereof, be
pleased to quash and set aside the same;
b. Issue a writ of mandamus and/or a writ in the nature of
mandamus and/or any other appropriate writ, order or direction directing the
Respondents, particularly Respondent Nos.1 and 2 to grant occupation
certificate in respect of the rehab building being constructed on the said land
and to further process, decide and grant all applications for planning
permission made by the Petitioners in respect of the said land without insisting
upon any permission or NOC from the Defence Authorities under the
Defence Circulars issued by the Ministry of Defence dated 18 May 2011
(Exhibit A), 18 March 2015 (Exhibit A-1), 17 November 2015 (Exhibit A-2)
and/or 23 December 2022 (Exhibit A-4), 4 April 2016 (Exhibit A-3) and 23
February 2023 (Exhibit A-5);
c. Declare that the circulars issued by the Ministry of Defence
dated 18 May 2011 (Exhibit A), 18 March 2015 (Exhibit A-1), 17 November
2015 (Exhibit A-2) and 23 December 2022 (Exhibit A-4), 4 April 2016
(Exhibit A-3), 23 February 2023 (Exhibit A-5) and impugned stop work
notice dated 24 October 2025 (Exhibit W) are ultra vires and unconstitutional
and violative of Articles 14, 19(1)(g), 73 and 300A of the Constitution of
India and to further quash and set aside the same.”Page 12 of 95
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Reply Affidavit on behalf of Respondent No.3 (Navy)
28. On behalf of respondent no.3/Navy, reply affidavit of Rear Admiral
Sundeep K. Verma is filed inter alia contending that Stop Work Notice issued by
MHADA has been rightly issued. It is contended that the objections raised by
the petitioner are misconceived, factually incorrect and legally not tenable. It is
next contended that the redevelopment of residential building no.41 of Worli
Adarsh Nagar, MHADA layout bearing C. S. No. 209 (Part), i.e. the project in
question, undertaken by the petitioner, was progressing without accord of NOC
from the Indian Navy, which was mandatory for any multistoried construction
within 500 metres of a Defence Establishment, namely, INS Trata. It is
contended that the requirement of Defence NOC was not discretionary but a
mandate under the DCPR 2034, Regulation No. 59 Appendix III at Serial no. 5,
which specifically lists “Ministry of Defence/Armed Forces – Near Defence
Area/Establishment” as requiring NOC.
29. It is next contended that the construction activity was undertaken by the
petitioner without obtaining such mandatory NOC, despite repeated objections
raised by LMA/INS Trata since 05 October 2023 and subsequent written
communications dated 06 November 2023 and 22 November 2023 addressed to
the MHADA. It is thus the case of the Navy that in the absence of NOC and in
view of continuing security violations, MHADA has correctly issued the Stop
Work Notice dated 24 October 2025 (received by the petitioner on 28 October,
2025). It is next contended that the refusal to process further permissions or
Occupation Certificate until security compliance is ensured is compelled by law,
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municipal regulations and national security consideration.
30. Insofar as the petitioner’s challenge to the constitutional validity of the
circulars issued by the Ministry of Defence (MoD) is concerned, it is submitted
that the challenge is not tenable, as the cases of granting NOC for construction
near defence establishments are governed by Government of India/Ministry of
Defence letter No. 11026/2/2011/D(Lands) dated 18 May 2011, 18 March 2015
and 17 November 2015. It is next contended that such circulars remain in force
since Government of India/MoD’s letter dated 23 December 2022 have been
held in abeyance by GoI/MoD’s letter dated 23 February 2023.
31. It is next contended that the Supreme Court by its order dated 22 January
2024 in SLP (C) No. 28519/2023 (Union of India vs. Dolby Builders), has
expressly restored the applicability of the MoD circulars dated 18 May 2011, 18
March 2015 and 17 November 2015. For such reasons, the petitioner’s
contention that the circulars are invalid, inapplicable or unconstitutional is
untenable.
32. It is submitted that the MoD circulars do not expropriate property, and
considering the significance of the defence establishment whichever conditions
are necessary and required may be imposed. It is contended that the MoD
circulars merely prescribe a requirement of NOC for security reasons in
proximity to defence establishments and that such circulars operate in tandem
with DCPR 2034, which independently mandate NOC from defence authorities
for constructions near defence areas. The petitioner’s fundamental rights under
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Articles 14, 19(1)(g) and 300A of the Constitution of India are not violated in
any manner.
33. It is next contended that Article 14 does not confer a right to parity in
illegality, and the petitioner cannot rely on any past constructions or permissions
granted without NOC to justify present non compliance. It is contended that
development permissions, including Commencement Certificates are expressly
conditional and revocable in case of misrepresentation or violation of statutory
requirements. It is also contended that earlier permissions do not create an
absolute right where construction is statutorily non compliant and within a
restricted security zone.
34. Insofar as the petitioner’s case that the project is beyond 500 metres is
stated to be factually not correct. The report of IRS Chennai contends that IRS
Chennai used coordinates from Site I of INS Trata and declared 528.82 meters as
the shortest distance at approx. 280 Mtrs. but failed to consider Site II, which is
the actual shortest point. It is contended that INS Trata/LMA had consistently
informed MHADA that the actual shortest distance from Site II is approximately
280 meters, bringing the project well within the 500 meter security radius. It is
hence contended that IRS Chennai is neither the competent authority nor an
expert in assessing security aspects as also is unaware of the geographical layout of
the Defence Establishment. For such reasons, it is contended that the report of
IRS Chennai is factually flawed and cannot bind Defence Authorities on security
matters. It is contended that once the correct distance is considered, the project
squarely falls within the mandatory NOC requirement under the MoD circulars.
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35. Respondent no.3 has next contended that the petitioner’s assertion that
the Stop Work Notice is arbitrary or contrary to earlier proceedings is also not
correct. It is stated that Writ Petition No. 1437 of 2024 was filed only because
MHADA did not grant further Commencement Certificate in time, and that the
Navy was never added as a respondent in the said petition. It is contended that
therefore, the reliefs, as prayed for in the said writ petition, did not relate to
respondent no.3 and/or in regard to Naval NOC or distance from INS Trata.
Thus, the disposal of the said writ petition does not create any legal bar against
MHADA or Defence Authorities acting on continuing security violations.
36. It is further contended that the petitioner has continued with the
construction, which according to respondent no.3 is unauthorized as the same is
undertaken being aware that no NOC is obtained as per law from defence
authorities and in this regard an explanation was sought in the month of July
2025 by MHADA.
37. Respondent no.3 has asserted that the requirement of obtaining a No
Objection Certificate (NOC) arises solely from the standpoint of national
security assessment. It is not a restriction on constitutional rights, nor does it
amount to any form of compulsory acquisition or deprivation of property. In
such context, it is contended that the purpose of the NOC mechanism is limited
and clearly defined to enable the competent security authorities, to examine
whether a proposed construction creates a direct line-of-sight issue, surveillance
vulnerability, or any other potential threat to a defence establishment. It is
contended that an NOC may be granted once the assessment concludes that the
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proposed building does not compromise the security of the defence installation
and in the event if the assessment identifies a genuine and demonstrable security
concern, the authorities are empowered to impose reasonable restrictions strictly
to the extent necessary to safeguard national security. Therefore, the Ministry of
Defence (MoD) circulars do not expropriate any individual of their property, nor
they do interfere with ownership or development rights beyond what is essential
for security. It is contended that the objective is not to regulate land use in
general, but to ensure that construction activities in the vicinity of sensitive
defence establishments do not create vulnerabilities that could compromise
national security interests. It is contended that the circulars operate as
precautionary, protective measures and must be understood in the limited
context. It is therefore contended that the Stop Work Notice dated 24 October
2025 (received by the petitioner on 28 October, 2025) is legal, valid and justified
as also the MoD circulars are constitutionally valid.
38. Insofar as the petitioner’s case that several other constructions existed
which are not being granted NOC by the Navy, the following averments are
made in paragraph 11.46 of the reply affidavit, the contents of which are required
to be noted which read thus:-
11.46. With reference to Ground II & JJ, I say and submit that the
petitioner has omitted mention of the year of construction or ongoing court
cases (Harisiddhi Heights). The high-rise buildings mentioned by the
petitioner existed prior to 2011, i.e., prior to issuance of the GoI/MoD
guidelines. GoI/MoD letter dated 18 March 2015 stipulates that NOC from
LMA/Defence Establishment is not required for constructions for which
permission had been issued by the competent municipal authority prior to 18
May 2011. Further, several of the high-rise buildings are well beyond 500 m
from the boundary wall of INS Trata. The petitioner has vaguely asserted that
these buildings were permitted without NOC. Article 14 does not confer a
right to parity in illegality. The petitioner is at liberty to submit an NOCPage 17 of 95
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WPL-36387-25.DOCproposal with revised configuration within extant guidelines. Therefore, the
petitioner’s fundamental right to equality under Article 14 of the Constitution
of India is nowhere violated.
Sr Name of Building Status
No..
01 Harsidhi Heights NOC not issued
02 Godrej bay NOC issued on 01 Feb 95
03 Amar Nagar CHS NOC issued vide HQWNC letter
WK/3039/44 dated 13 Nov 09
04 Prerna NOC issued vide HQWNC letter
WK/3031/NOC/57 dated 31 Oct 17
05 Shadlya Terrace Stilt NOC issued vide HQWNC letter
WK/3033-2/22 dated 14 Jun 16
06 Sea Face CHS
07 Surana Regency
08 New Sea Link CHS
09 Hermes house
10 Pratiksha
11 Redrose apartments Details of NOC not held.
12 Priya Building
13 Sportsfrild
14 Suraiya Apartment
15 Raheja Legends
16 Vrindavan CHS Ltd. NOC recommended by HQWNC on 11
CS No.207 & 208 (pt) Sep. 2007 for height 69.96mtr. And denied
for the height 148.13 meter by HQWNC 21
Aug 18. The builder re-approached for
NOC for amended height 183.6 m. which is
not recommended by the Unit as it would
have had direct line of sight to infrastructure
of INS Trata. As per the directives issued by
Chief Security during the CMLC
Conference, a bilateral discursion was
conducted between the official from BLC
and Indian Navy on 10 Jul 25 at 1500 hours
in the Chamber of Dy. Chief Eng. (BP) City
Office. During the meeting Chief Engineer,
BMC acknowledged the concerned raised by
IN side, but stated that he would need to
consult the BMC Commissioner again
before providing any further response. The
Unit reapproach BMC Wadala Office on 13
Nov. 25. However, the Executive Engineer
stated that the case has been sent to
Municipal Commissioner for remarks. BMC
will revert back to unit within 10 days. Reply
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WPL-36387-25.DOC
from BMC is still awaited.
17 Shiv Shashi CHS and NOC recommended by HQWNC on 05
Shiv Prerna CHS Aug 15 without mentioning height. The
CS No.999(pt) original height proposed by builders was of
single building having 2 wings i.e. Wing - A
of height 66.55 m. for rehabilitation and
Wing - B of height 58.17 m. for sale.
18. M/s.Dolby Builders NOC was accorded in Jan 24 for the
Plot No.49 CS No.775 reconstruction of G + 05 building with 15
mtr. Height as per Hon'ble Supreme Court
orders.
19 SRA Scheme Building SRA office vide its letter
Adarsh Nagar SRA/ENG/DESK/OW/GS/5960 dtd. 12
C.S.No.5(pt) & 15(pt) – Feb 25 indicated that it has commenced
Sagar Darshan work on the building as per height indicated
in the NOC letter issued by HQWNC letter
WK/3031/NOC/22/19 dated 03 Jun 17
20 Indraprastha CHSL NOC not recommended view building falls
Bldg.No.41 (Aakasa) within 500m of Trata and proposal for stop
CS No.209 (pt) work notice forwarded to MHADA. INS
Trata forwarded letters
624/WK/NOC/209(pt) dt. 23 Jun 25 Work
Notice and submitted. Hon’ble Supreme
Court order dated 22 Jun 24. A joint
meeting was held at MHADA office in the
Chairmanship of Hon’ble VP & CEO
MHADA on 7 Oct 25. No further
construction work at the site has been
observed and the unit is continuously work.
21 M/s.SSV Developers NOC not recommended view within 500m
CS No.208(pt) & of Trata by HQWNC on 29 Jan 19, no
209(pt) construction activity has been observed.
22 Shiv Kiran CHS NOC was not recommended view within
500m of Trata by HQWNC on 11 Mar 21,
and stop work notice was issued by
MHADA. However, Hon'ble High Court of
Bombay pronounced judgment in favour of
the building on 05 Jan 24.
23 Harsiddhi Heights NOC not recommended view within 500m
CS No.208 of Trata and no new activity has been
spotted.
24 Redevelopment of Revised NOC for 51.95 mtr. Height
College building 5(pt) regretted by HQWNC on 05 July 22. NOC
and 209(pt) has been given for the height of 25.10 mtr.
On 18 Jun 14.
25 Matruchhaya Bldg. Earlier NOC was regretted by HQWNC on
No.42, 15(pt) & 16(pt) 12 Jun 24. MHADA reapproached
HQWNC to continue NOC for existing
proposal on 23 July 25. INS Trata carried
out security assessment on directives of HqsPage 19 of 95
P. V. Rane
WPL-36387-25.DOC& NOC was not recommended i.a.w. extant
MoD guidelines
39. It is, however, submitted that the petition ought not to be entertained and
needs to be dismissed.
Submissions on behalf of the Petitioner
40. Mr. Ravi Kadam, learned Senior Counsel appearing for the petitioner has
made the following submissions:
i. At the outset, it is submitted that this petition impugns the stop
work notice dated 24 October 2025 issued by MHADA on the basis of
respondent No.3’s communication dated 23 June 2025 that the
petitioner’s development is within 500 meters of INS Trata II and the
petitioner is bound to apply for and obtain a defence NOC under the
Circulars dated 18 May 2011, 18 March 2015, 23 December 2022. It is
submitted that the petition needs to succeed on several grounds inasmuch
as the construction which has been undertaken by the petitioner is legal
and valid and after obtaining due permission from the municipal
corporation. It is submitted that the petitioner had applied for Occupation
Certificate for the rehabilitation unit which is a complete as also valid
construction and the sale wing is constructed upto 31/34 floors and which
is also substantially completed. It is submitted that on a totally untenable
premise the petitioner is foisted with the demand of obtaining NOC from
the defence authority. It is submitted that such insistence foisted on the
petitioner is also contrary to the circulars issued by respondent No.3.
Page 20 of 95
P. V. Rane
WPL-36387-25.DOCii. It is next submitted that the actions of respondent No.3 are
arbitrary looked from any angle for the reason that respondent No.3 is
guilty of “pick and choose” approach in implementing the 2011, 2015
Circulars that is arbitrary, capricious and violative of Article 14 of the
Constitution.
iii. It is submitted that respondent No.3’s demand for NOC is
premised on the erstwhile 2011, 2015 circulars which were superseded by
23 December 2023 circular, which no longer exist in the eyes of law
inasmuch as the petitioner’s rights to undertake constructions have stood
crystallized under the 2023 circular under which it has completed the
construction.
iv. In supporting such contentions, Mr. Kadam has submitted that this
Court by its order dated 8 December 2025 had directed respondent No.3
to file a reply setting out a clear statement in regard to the existing
building, the date of their construction, and whether any action has been
taken in respect of these buildings which are situated within 50 meters to
500 meters. However, respondent No.3, despite clear orders, has not
complied with the said direction to list out all existing buildings which are
situated within 50 meters to 500 meters radius as directed by the Court
and the details of the action taken against them.
v. Respondent No.3 has only answered the charge qua the non-
exhaustive list of buildings identified by the petitioner in Ground 11 (Page
Page 21 of 95
P. V. Rane
WPL-36387-25.DOC
66 of the Petition) and that too, answered the same only with respect to
some of the buildings mentioned in the list. It is thus submitted that an
adverse inference ought to be drawn against respondent No.3 that it
adopts a ‘pick and choose’ approach in enforcing the impugned circulars,
which is wholly arbitrary and capricious under Article 14 of the
Constitution. The adverse inference is further borne out by the factual
situation wherein the maps establish that several high-rise buildings have
come up around INS Trata. Referring to the circular dated 18 May 2011
relied upon by respondent No.3 it is stated that it lays down that the
Station Commander must take an objection, a position borne out from the
words “Where the local municipal laws do not so require, yet the Station
Commander feels……” It is therefore, submitted that the entire onus is on
the Station Commander to pro-actively enforce the circulars, and not the
other way around, irrespective of whether the distance of 50 mtrs. as per
the circular dated 23 December 2022 or 500 mtrs as per the circular dated
18 May 2011.
vi. In the context of the petitioner’s case on respondent No.3’s
approach of ‘pick and choose’, which according to the petitioner, has also
been noticed by this Court in the Shivaji Nagar Shivkiran Co-op. Hsg.
Society Ltd. & Anr. Vs. MHADA & Ors. 2, as decided by the co-ordinate
Bench of this Court which has attained finality since no challenge is
preferred to the same, needs to be considered as squarely applicable in the
2 Writ Petition No.1215 of 2023
Page 22 of 95
P. V. Rane
WPL-36387-25.DOC
present context. It is submitted that qua the non-exhaustive list of
buildings around INS Trata tabulated in Ground II of the Petition, would
stand admitted by respondent No.3 as having an arbitrary pick and choose
approach in giving NOC to some and not enforced the circulars against
others. In consequence thereto, it is clear that respondent No.3 objected to
some constructions constructions but did not object to others, despite all
of them being within the defence radius, and despite some buildings being
much closer than others. It is, hence, submitted that even the application
of the circulars was inconsistent and uneven. Further, respondent No. 3
has not even answered the petitioner’s case as to why one building, namely
“Shandilya Terrace” was granted an NOC despite being right next to INS
Trata. It is stated that the selective conduct of respondent No. 3 is further
buttressed by the petitioner having named buildings such as “Oberoi 360”
and “Marina Bay”, wherein the proposed construction was well over 30
floors, yet, respondent No. 3 has kept silent on these constructions in its
affidavit. It is submitted that this supports the petitioner’s contention that
respondent No.3 simply applies the circulars in a discriminatory fashion
and chooses to turn a blind eye to some.
vii. It is next submitted that this Court in Shivaji Nagar Shivkiran CHS
& Aut. v. MHADA & Ors. (supra) has itself taken a judicial notice of
respondent No. 3’s ‘pick and choose’ approach in implementing the
circulars in respect of construction carried out within 500 meters of INS
Trata. In such case respondent No.3 objected to the development qua
Page 23 of 95
P. V. Rane
WPL-36387-25.DOCproximity to INS Trata II. Even in that case, the Court identified a list of
buildings around INS Trata and in respect of which it held that
respondent No.3 had taken a ‘pick and choose’ approach which is violative
of Article 14. It is on such grounds, the Court was satisfied that respondent
No.3 had acted in an arbitrary and capricious manner and made the
petition absolute. Referring to the decision in B.K. Ravichandra & Ors.
vs. Union of India & Ors.3, it is contended that respondent No.3’s
arbitrary approach in implementation of the circulars is violative of Article
14 of the Constitution and applying the principles as laid down by the
Supreme Court, it would not be open to the State to claim that the law can
be ignored, or complied at its convenience.
viii. It is submitted that the case of respondent No.3 that the mandate
to obtain NOC flows from Regulation 59 of DCPR 2034 is fallacious and
incorrect, since the twin conditions for NOC laid down in Appendix III,
Sr.No.5 to its defence, are not satisfied. It is submitted that this Court has
already pronounced in Dolby Builders Private Limited vs. Municipal
Corporation of Greater Mumbai & Ors.4, on the validity of the circulars
which were quashed and set aside, which according to the petitioner, is
squarely applicable to the facts of this case. It is submitted that the ratio in
the said case was reaffirmed in the case of Union of India vs. State of
Maharashtra & Ors.5
3 (2021) 14 SCC 703 para 35)
4 (2023) 2 HCC (Bom.) 382
5 Writ Petition No. 3145 of 2021Page 24 of 95
P. V. Rane
WPL-36387-25.DOCix. It is next submitted that respondent No.3’s demand for NOC is
premised on the erstwhile 2011, 2015 Circulars which were superseded by
the 23 December 2022 Circular, and hence the said circulars on the basis
of which the demand for NOC is being made no longer exists in the eyes
of law. In such context it is submitted that respondent No.3’s contention
that the erstwhile 2011, 2015 and 2016 Circulars remain in force by virtue
of the 23 December 2022 Circular having been kept in abeyance by the
23 February 2023 circular, is untenable on several grounds. It is submitted
that the erstwhile circulars are the highest executive instructions which
could be substituted at any time and it is so happened in the case of the
said circulars of 2011, 2015 and 2016, as the December 2022 circular
expressly cited the erstwhile circulars and stated that it was issued in
supersession of the same. It is submitted that the supersession thus took
effect instantly upon the issuance of the December 2022 circular, and the
repeal/ supersession of the erstwhile circulars came into effect at once and
they thus no longer existed in the eyes of law. For such reason, the
supersession was also in force from 22 December 2022. It is submitted
that as a consequence thereto, the post facto abeyance of the 23 December
2022 circular, by the 23 February 2023 circular makes no difference since
the supersession/repeal of the erstwhile circulars had already taken effect
and hence, abeyance of a superseding circular does not revive the earlier
circular.
x. It is submitted that repeal/quashing of the December 2022
Page 25 of 95
P. V. Rane
WPL-36387-25.DOCcirculars much less an “abeyance” of the same will not revive the
repealed/superseded circulars. In supporting such contention, reliance is
placed on the decisions in the case State of Uttar Pradesh & Ors. vs.
Hirendra Pal Singh & Ors.6; Joint Action Committee of Air Line Pilots &
Ors. v DGCA & Ors.7; Brihanmumbai Mahanagarpalika & Ors. vs.
Secretary, Bar Council of Maharashtra and Goa & Anr. 8. It is hence
submitted that there is no question of respondent No.3 demanding NOC
basing on the circulars which no longer exist in law.
xi. Mr. Kadam would submit that independent of the aforesaid
position in law, the petitioner has a crystallized right under the 23
December 2022 circular to complete its construction. This for the reason
that the petitioner was granted a Commencement Certificate for shore
piling on 3 February 2023 whilst the 23 December 2022 circular was in
effect. It is submitted that this is also confirmed by the respondents in the
Minutes of Meeting dated 20 October 2025 wherein the discussion
recorded therein confirms that MHADA had issued the first
Commencement Certificate in view of the 23 December 2022 circular
being in force and which prescribed a radius of 50 meters from INS Trata
II. It is submitted that the effect of this grant entails a crystallisation of the
petitioner’s rights which now cannot be set at naught. Such submission is
supported by placing reliance on the decision of the Supreme Court in
6 (2011) 5 SCC 305
7 (2011) 5 SCC 435
8 (2012) 6 Mah LJ 407Page 26 of 95
P. V. Rane
WPL-36387-25.DOCGoan Real Estate and Construction Ltd. & Anr. vs. Union of India,
through Secretary, Ministry of Environment and Ors.9
xii. In such context it is submitted that in Shivaji Nagar Shivkiran Co-
operative Housing Society Ltd. & Anr. vs. Maharashtra Housing and Area
Development Authority & Ors.10, the Petitioners were also granted
development permission for plinth on 5 January 2023 whilst the regime
under the 23 December 2022 circular was in force. The Court in such case
has held that the petitioner’s rights stood crystallized in the window
between the 23 December 2022 Circular and it being kept in abeyance in
February 2023 and it is held that such rights being crystallized could not
now be undone. It is submitted that in the present case, the petitioner’s
crystallised right can also be appreciated from another perspective.
Respondent No.3 wrote two letters dated 5 October 2023 and 22
November 2023 to the MHADA objecting to the construction. It is
submitted that MHADA refuted these letters by a 18 December 2023
communication asserting that no NOC was required for the reasons
therein. It is submitted that respondent No.3 thereafter did nothing for
two years nor did it move the Court to enforce any claim. It is thus
submitted that by such conduct, respondent No.3 accepted MHADA’s
stand and kept silent, whilst MHADA went on to issue “five
Commencement Certificates” between 2023 to June 2025 and allowed
the construction to progress. It is hence submitted that it was only in June
9 (2010) 5 SC 388
10 Writ Petition No. 1215 of 2023 decided on 5 January, 2024Page 27 of 95
P. V. Rane
WPL-36387-25.DOC2025 that respondent No.3 chose to object again by a letter dated 21 June
2025. It is thus submitted that such facts clearly established that
respondent No.3 accepted MHADA’s stand and allowed the construction
to progress, rendering it disentitled in law from now challenging
petitioner’s construction.
xiii. Mr. Kadam would submit that all these facts would clearly establish
respondent No.3’s capricious approach of acting at its own convenience,
something deprecated in B. K. Ravichandra‘s case (supra).
xiv. The next submissions of Mr. Kadam is to the effect that respondent
No.3’s contention that the mandate to obtain its NOC flows from
Regulation 59 of the DCPR 2034, is fallacious and untenable. In such
context it is submitted that in paragraph 4 of the reply affidavit,
respondent No.3 has taken a stand that “the requirement of Defence
NOC is not discretionary but a mandate under DCPR 2034 Appendix III,
Regulation 59, Serial No.5 which specifically lists “Ministry of Defence/
Armed Forces – Near Defence Area / Establishment”. Such contention is
untenable, as according to the petitioner, the affiant has mischievously
paraphrased Appendix III Serial No.5 in a self-serving way and omitted
portions of the same, as if it operates to confer unilateral authority with
respondent no. 3 to grant a NOC.
xv. It is submitted that the words “as notified by Urban Development
Department, GoM” have been omitted in the reply. It is submitted that
Page 28 of 95
P. V. Rane
WPL-36387-25.DOCrespondent No.3 has not even established that INS Trata-II has been
notified by Urban Development Department, and hence this requirement
does not apply.
xvi. It is submitted that it is settled law that the right of property under
Article 300-A is a valuable right which cannot be blocked in an oblique
and indirect fashion, and the law of development or town planning should
be explicit about the nature and effect of the deprivation, expressing the
intention to do so, as held by the Supreme Court in B.K.Ravichandra Vs.
Union of India (supra). In such context it is submitted that Regulation 59
is a pointer to the legislative intent to be explicit on obtaining NOCs
‘where necessary’ qua defence that is where twin conditions are satisfied;
firstly, required by the Defence authority around the defence installation;
and secondly, as notified by Urban Development Department,
Government of Maharashtra. According to the petitioner, these two
conditions are cumulative since the law maker has used the conjunction
‘and’ instead of ‘or’. The second condition ‘as notified by the Urban
Development Department, GoM’
xvii. It is next submitted that the second condition as notified by the
“Urban Development Department, Government of Maharashtra ” has not
been shown to be satisfied by respondent No.3 and on this ground alone,
respondent No.3’s reliance on Regulation 59 must fail. It is submitted that
even the condition “Required by the Defence Authority around defence
installation” is also not made out. This is since INS Trata is not a notified
Page 29 of 95
P. V. Rane
WPL-36387-25.DOC“work of defence’ under the Works of Defence Act, 1903. It is submitted
that it is equally undisputed that the impugned circulars are not delegated
legislation under that statute and/or authorised by that statute and further,
the earlier circulars as impugned stand superseded by the Circular dated
23 December 2022. It is submitted that Regulation 59 is prefaced with
the words “wherever necessary”, thus, in other words, there must be a
mandatory obligation laid down by legislation and/or delegated legislation
to obtain such an NOC in the specific facts pertaining to a construction
site i.e. where required by law. This is further bolstered by the words in the
latter portion of the clause, ” ……all the requirements of special NOCs,
Laws and Regulations that are applicable from time to time. ” It is, hence,
submitted that there is no legal requirement on the petitioner under
Regulation 59 to obtain an NOC from Respondent No.3 in respect of
petitioner’s project.
xviii. In the aforesaid context, it is submitted that the contention as
alleged by respondent No. 3 across the bar that the requirement to obtain
an NOC falls within the ambit of clause 2(i) of the Circular dated 23
December 2022 since the municipal laws require the same is belied not
only from the record but on a perusal of the provisions of law itself. In
such case, it is submitted that, firstly, paragraph 2(i) of the 23 December
2022 circular commences with the words ” In places where local municipal
laws require consultation with the Station Commander… “. The submission
is that there is no provision in law which requires such consultation and
Page 30 of 95
P. V. Rane
WPL-36387-25.DOCtherefore, there is no question of the case of respondent No. 3 falling
within the ambit of paragraph 2(i) of the 23 December 2022 circular.
Further also paragraph 2(ii) refers to Defence establishments at Annexure
A wherein INS Trata appears at Sr. No. 10. Thus, the Defence Authority
thereunder accepts that INS Trata falls in paragraph 2(ii). It is not even
respondent No.3’s case on record that the requirement of obtaining an
NOC is as per clause 2(i) of the 23 December 2022 circular. This is also
evident from the Minutes of the Meeting held between respondent No. 3
and MHADA dated 20 October 2025 which records respondent No. 3’s
contention that “the previous circular is in effect for the project falls in
500 mtr. from Naval establishment shall have to obtain NOC from Naval
establishment”. It is the petitioner’s contention that this stand was also
echoed in the letter dated 22 November 2023 addressed by respondent
No. 3 to MHADA by virtue of which respondent No. 3 insists on issuance
of a Stop Work Notice on the ground that the construction is within 500
meters from INS Trata II.
xix. It is submitted that on a perusal of the circulars, it is evident that
the distance of 500 meters is found in clause 2(i) of the circular dated 18
May 2011 which was reduced to 50 meters in clause 2(ii) of the circular
dated 23 December 2022. It is submitted that even on facts, it is not
respondent No. 3’s case that the requirement to obtain an NOC is found
under clause 2(i) of the 18 May 2011 circular or the 23 December 2022
circular.
Page 31 of 95
P. V. Rane
WPL-36387-25.DOCxx. The next contention of Mr. Kadam is that the reasoning of this
Court in Dolby Builders & Anr. vs. MCGM (supra) which was affirmed in
Union of India vs. State of Maharashtra & Ors.(supra) is squarely
applicable to the facts of this case. In such context, it is submitted that in
Dolby Builders & Anr. Vs. MCGM, the Division Bench of this Court held
that the Impugned circulars of 18 May 2011, 18 March 2015, 17
November 2015 and 23 December 2022 circulars were ultra vires the
Works of Defence Act. It is submitted that the Court in decision has held
that the Works of Defence Act, 1903 was a complete code and that the
circulars being in the nature of ‘executive instructions’ could not
supplement the same. The Court held that such executive instructions are
not “law” within the meaning of Article 300-A for restricting the right to
property embedded therein. It is submitted that the Division Bench in the
said decision has distinguished the judgments of the earlier benches in
TCI Industries, SSV Developers and Sunbeam Enterprises by noting that
the same had not considered the binding ratio of the law laid down by the
Supreme Court in B.K. Ravichandra case (supra), Satwaratna Coop
Housing Society Ltd. v. BPCL11 and T. Vijayalakshmi v. BDA12 which
inter alia held that the right to develop property could not be indirectly
curtailed without legislation.
It is submitted that in the Dolby Builders & Anr. vs. MCGM (supra) the
Court has quashed and set aside the Circulars. Thus, it is submitted that
11 2022 SCC Online SC 703
12 (2006) 8 SCC 502Page 32 of 95
P. V. Rane
WPL-36387-25.DOCthe said decision is submitted to be applicable in the facts of the present
case and which would be one of the significant grounds on which the
petition needs to be allowed.
xxi. Mr. Kadam would next submit that respondent No.3’s self-serving
interpretation of the Supreme Court’s Order in Union of India vs. Dolby
Builders Pvt. Ltd.13 is unacceptable and in fact belied by the record. In
such context, respondent No.3’s submission that the impugned circulars
have been upheld by the Supreme Court of India in the matter of Union
of India v. Dolby Builders Pvt. Ltd. (supra) needs to be rejected, as the
Supreme Court has not, in fact, passed any such order. It is submitted that
the Court in said case partly allowed the Appeal in the peculiar facts of the
said case wherein the petitioners agreed not to press their plea qua the
legality of the Circulars on the condition that the respondents grant a no
objection to their redevelopment. It is submitted that it was on such basis
the Appeal stood partly allowed and the matter stood disposed of virtually
by consent. It is submitted that the Supreme Court did not delve on the
merits of the party’s case nor did it expressly overrule the judgment for
others. Referring to the decision of this Court in Indian Cork Mills Vs.
State of Maharashtra14, it is submitted that it would be necessary whether
the Supreme Court in the said case decided the issue of the vires of the
Impugned Circulars, whether they had force of law and/or the factum of
they being superseded, and for such reason the interpretation as made by
13 Civil appeal arising out of SLP(C) No. 28519 of 2023
14 2018 SCC Online Bom 1214Page 33 of 95
P. V. Rane
WPL-36387-25.DOCrespondent No.3 of the said decision needs to be rejected. It is thus
submitted that the Court needs to apply the reasoning laid down in Dolby
Builders Pvt. Ltd. (supra), which is sound in law and the reasoning in
Dolby Builders (supra) was re-affirmed by this Court and applied in
Union of India v. State & Ors. (supra). Further the decision in Kappa
Builders has attained finality as the Special Leave Petition against the said
decision of this Court was dismissed by the Supreme Court (SLP
No.13483 of 2024) dated 23 October 2023.
xxii. Mr. Kadam accordingly would submit that the project in question
was carried out in accordance with permissions granted by MHADA. It is
submitted that the Circulars being used against the petitioner are now
being superseded by the circular dated 23 December 2022. The petitioner
has a crystallised right under the 23 December 2022 Circular by virtue of
having been granted development permission and which cannot now be
undone. It is further evident that respondent No.3 has adopted an
arbitrary policy of ‘pick and choose’ and detailed submissions are made by
the petitioner in making out its case that the such policy is violative of
Article 14 of the Constitution.
xxiii. On merits it is submitted that the petitioner’s project is
substantially complete, with the rehab building awaiting grant of
Occupation Certificate and the sale building being at 31/34 floors. It is
submitted that it cannot be overlooked that there are tenants of 72
tenements languishing in transit accommodation for their redeveloped
Page 34 of 95
P. V. Rane
WPL-36387-25.DOCflats and nearly 70% of the flats in the sale project have been sold. It is
submitted that it is wholly inequitable for respondent No.3 to now object
to the development of petitioner by insisting on the NOC. Mr. Kadam
would submit that the petitioner has made out a strong case for grant of
relief as prayed for and the petition be accordingly allowed.
Submissions on behalf of Respondent No.3
41. Mr. Govilkar, learned senior counsel for respondent no. 3 has made the
following submissions:
At the outset, it is submitted that the construction of the petitioner on
CTS No. 209(pt.), Aadarsh Nagar Layout, Worli, falls within a defence-sensitive
zone of the Western Naval Command. It is submitted that the layout is in the
immediate vicinity of multiple operational naval installations, namely, INS Trata
(Site-II) active operational facilities where sensitive activities take place regularly.
It is next submitted that the plot of Building no. 41 (Indraprastha CHS), being
the site of the Cooperative Societies, lies within the broader security influence
zone applicable to multistorey buildings around naval establishments and creates
a direct and unobstructed line-of-sight into zones where defence-related activities
are carried out. It is submitted that a high rise structure at this location provides a
permanent elevated vantage point for visual surveillance, photography, electronic
reconnaissance and pattern-mapping. This building would create continuous
and perennial threat which cannot be neutralised.
42. It is next submitted that there are provisions under the Maharashtra
Regional Town Planning Act, 1966 (for short “MRTP Act”) governing
Page 35 of 95P. V. Rane
WPL-36387-25.DOCdevelopment permissions, under which Section 44-46 thereof, the Planning
Authoirty is required to consider the Development Plan, Development Control
Regulations, public interest and all statutory restrictions. It is submitted that the
public interest includes national security. It is submitted that Regulation 59 of
DCPR 2034 would cast a duty upon the owner and developer mandating special
purpose NOCs wherever necessary. It is submitted that Appendix-III thereof
lists the Defence Authority at Sr. No. 5. The wording therein being ” as required
by the Defence Authority around defence installations and as notified by the
Urban Development Department” are required to be read disjunctively, being
two limbs that independently trigger the requirement of a Defence NOC. It is
next submitted that the Ministry of Defence has issued several circulars
regulating construction near defence establishments. In such context, reference is
made to circular dated 18 May 2011, which lays down the guidelines for NOCs
for buildings within 500 metres of defence establishments and empowers Station
Commanders to object based on threat perception. It is submitted that circular
dated 18 March 2015 introduced the “shadow and shield” concept and clarified
treatment of pre-2011 permissions/construction. Further circular dated 17
November 2015 refined the guidelines without diluting the core principle that
defence authorities may object to constructions compromising security.
43. It is next submitted that a fresh circular dated 23 December 2022 was
later issued superseding the earlier circulars, in which according to respondent
no. 3, two different situations were contemplated, firstly, in the places where local
municipal laws requires consultation with Station Commander before approval of
Page 36 of 95
P. V. Rane
WPL-36387-25.DOCbuilding plan and secondly, where local municipal laws do not require yet Station
Commander feels that any construction coming up within 50 meter radius of
defence establishment would require NOC. These are two independent
circumstances and cannot be said to be overlapping. It is next submitted that the
circular of 2022 was placed “in abeyance” on 23 February 2023 as also this Court
in Dolby Builders vs. Union of India (supra) quashed the circulars, in case
involving reconstruction of a ground + 2 structure from the 1940. However the
said circular was brought back to life in the matter of UOI Vs. Dolby Builders
(supra) in which the Supreme Court gave a relief to Dolby builders in particular
and for others, the Court has left it open to challenge the vires of the said circular
and for such reason, the petitioner has challenged the vires of the said circular.
44. It is next submitted that once the superseding circular is placed in
abeyance, the earlier circulars revive by necessary implication. It is submitted that
in the event of circular being kept in abeyance, it is not just the contents of the
circular but also everything that flows from it including the supersession and its
effect. It is submitted that there cannot be any regulatory vacuum in regard to
national security, and there was none during the period of December 2022 to
February 2023. It is submitted that the MoD circulars are regulatory and not
adjudicatory as also the Supreme Court in UOI Vs. Dolby Builders (supra)
(supra) confirms that the circulars remain valid for all parties to challenge its vires
on subsequent date.
45. Insofar as the role of MHADA is concerned, it is submitted that the survey
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WPL-36387-25.DOCremarks dated 27 September 2021 for CTS No. 209 expressly record that if the
plot is affected by the safety clearance zone of an Army/Naval depot, specific
remarks shall be obtained from the competent authority, and “NOC from Naval
Dept.” is listed as a required clearance. It is submitted that such survey remarks
were communicated to the architect M/s Ketan Vaidya and Associates. It is
submitted that the developer cannot rely on private satellite imagery or remote-
sensing reports. It is submitted that the IRS report relied upon by the petitioner is
exclusively on maps and Google Earth 2011, without physical survey, which
ignores Site-II entirely. It is submitted that 528-metre distance from defence site
is misleading and the actual distance from Site-II is approximately 280 metres
which can be clearly seen from the map attached in the order passed by this Court
in Shivaji Nagar Shivkiran Co-operative Housing Society Ltd. Vs. MHADA &
ors.(supra)
46. It is submitted that the petitioner’s allegation of ‘pick and choose’ is
misconcieved and legally untenable. In such context, it is submitted that the
Navy examines proposals only when they are formally forwarded by the Planning
Authority (MCGM / MHADA) and that the Navy does not, and cannot, suo
motu survey civilian areas or directly interact with private developers. The reason
being its jurisdiction is triggered only upon receipt of a proposal through the
statutory channel. This institutional limitation is inherent in the development-
control framework under the MRTP Act and DCPR 2034. In such context, it is
submitted that in the same layout, propsoal of Building No. 42 was duly
forwarded by MHADA to the Navy, and the Navy refused NOC twice on
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security grounds. This according to respondent no. 3 demonstrates that whenever
a proposal is properly routed, the Navy applies uniform, consistent and security-
driven standards. It is submitted that insofar Building No. 41 is concerned, there
was no proposal forwarded by MHADA despite survey remarks mandating Naval
NOC. Any differential outcome arises solely from MHADA’s omission, not from
any selective conduct on the part of the Navy.
47. It is next submitted that the Navy cannot “go around taking action”
against developers. It is not a planning authority, nor does it have statutory power
to inspect, stop, or regulate construction unless a proposal is placed before it. It is
the exclusive responsibility of MHADA/MCGM to ensure that all mandatory
NOCs, including Naval NOC, are obtained before granting development
permission. For such reason, if MHADA fails to forward a proposal, the Navy
cannot be faulted for not issuing an objection earlier. The petitioner’s reliance on
the existence of other buildings in the vicinity to allege discrimination is not the
correct contention. Several buildings cited by the petitioner are pre-2011
structures, long predating the MoD Circular dated 18 May 2011. It is submitted
that under the 2011 Circular, no NOC is required for pre-existing structures, and
therefore the Navy had no occasion to examine or object to the same. In such
context, it is submitted that many other buildings cited by the petitioner were
granted NOC only because they satisfied the “Shadow and Shield” criteria,
meaning thereby that they did not create a direct line-of-sight into sensitive naval
assets. Such criterion has been consistently applied by Navy, which is expressly
recognised in the MoD Circular dated 18 March 2015. It is also not clear that on
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WPL-36387-25.DOCwhat grounds the petitioner is claiming parity when in the petition, no allegation
of hostile discrimination as against similarly placed entities is made. Thus, merely
naming few buildings without any allegations of wrongful grant of NOC is not
sustainable. Further, without giving an opportunity to examine the proposal of
the petitioner, the latter cannot allege the case of “pick and
choose/discrimination.” It is submitted that the Navy has, in fact, proactively
objected to several buildings in the Worli-INS Trata belt whenever a security
threat was perceived. However, in some cases, developers subsequently obtained
permissions from the High Court or Supreme Court and construction continued
pursuant to judicial orders (e.g., Dolby Builders). The Navy’s objections in those
cases were not withdrawn, they were overridden by judicial directions. Thus, the
existence of such buildings cannot be treated as evidence of selective
enforcement.
48. It is submitted that the Navy acts only when a proposal is forwarded, only
when a security threat is perceived, and only within the statutory framework. The
variation in outcomes is attributable to (i) MHADA’s failure to forward certain
proposals, (ii) pre-2011 legacy structures, (iii) buildings falling within “Shadow
and Shield” protection, and (iv) judicial orders permitting construction despite
Naval objections. None of these factors reflect arbitrariness on the part of the
Navy. In fact, the Navy’s conduct is consistent, uniform, and guided solely by
national security considerations.
49. It is next submitted that the construction permission (commencement
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certificates) were obtained in phases by the petitioner and substantial permissions
were obtained after judgment of the Supreme Court in the matter of UOI vs.
Dolby Builders (supra). In such context, it is submitted that the petitioner had
applied for and secured the foundational development permissions including the
DP Remarks dated 31 December 2020, the CRZ/distance certification dated 24
August 2021, and the Intimation of Approval dated 26 July 2022 at a time when
the earlier Ministry of Defence circulars of 2011, 2015 and the 2016 clarification
were in force, and well before the issuance of the MoD circular dated 23
December 2022. The Commencement Certificates thereafter were granted in
stages, beginning with the Commencement Certificate for shore piling on 3
February, 2023 and the further Commencement Certificate on 12 April, 2023,
both issued during the period when the 23 December, 2022 circular had been
kept in abeyance on 23 February, 2023. It is submitted that subsequent
Commencement Certificates including those dated 5 April, 2024, 30 May, 2024,
23 October, 2024 and 11 August, 2025 were all granted after the judgment of
the Supreme Court in UOI vs. Dolby (supra), by which the earlier MoD circulars
stood revived as it was made open to all the aggrieved person/entity to challenge
the vires of the said circulars. It is submitted that consequently, all post-Dolby
permissions necessarily attracted the requirement of a Naval NOC by operation
of law. The petitioner has not applied for NOC, therefore, there cannot be any
vested rights in favour of the petitioner to proceed with the construction. It is
submitted that in any event, irrespective of the timing of permissions, any
structure that provides a direct line-of-sight into a confidential defence
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installation constitutes a serious and legitimate security concern, which cannot be
diluted or taken lightly.
50. It is next submitted that there is no fault from the Navy, as Navy
constantly followed up with MHADA. It is clear from the record that the Navy
acted with consistency and diligence from the very outset. In such context, it is
submitted that beginning with its first communication dated 5 October 2023,
followed by further letters on 6 November 2023, 14 November 2023, and 22
November 2023, the Naval authorities repeatedly alerted MHADA to the
security concerns of the petitioner’s construction and informed that the
construction is ongoing without any NOC from Navy. In this regard, it is
submitted that continuous follow-up demonstrates that the Navy neither
remained passive nor allowed any lapse to occur. It is submitted that even in the
meeting held on 7 October, 2025, officers of Navy insisted that MHADA must
issue a stop-work notice. For such reason, no allegation of negligence, delay, or
dereliction of duty can be attributed to the Naval authorities, who have
consistently acted to safeguard national security. It is submitted that the
petitioner and MHADA, without performing their duties, cannot call upon
respondent no. 3 to act beyond the scope of its powers.
51. Insofar as the legal submissions are concerned, it is submitted that in
Vikram Delite Co-operative Housing Society Ltd. v. Union of India 15, this Court
had examined a redevelopment proposal situated approximately 375-421 metres
15 Writ Petition No. 3543 of 2018 decided on
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from a Naval Armament Depot. The Local Military Authority (LMA) had
refused NOC on the ground that the proposed structure created a direct line-of-
sight into sensitive operational infrastructure. The observations as made by this
Court that would go to show that the Navy is entitled to prevent any
construction that provides an elevated vantage point into defence installations
and that the right to property under Article 300A is subject to reasonable
restrictions in public interest, including national security.
52. Referring to the decision of Gorakhnath Shankar Nakhwa v. Municipal
Corporation of Greater Mumbai16 it is submitted that in the said case, the Court
considered objections raised by Mazagon Dock Shipbuilders Ltd., a defence PSU,
to high-rise construction in its vicinity, when it was held that planning authorities
cannot ignore defence objections where security concerns are raised and that it
would be appropriate to insist on defence clearance wherever defence sensitivity
is recorded and that The Works of Defence Act, 1903 was not the only source of
power for defence authorities, but the pending comprehensive amendments to
the Act, the Ministry of Defence guidelines continue to operate and can be relied
upon as observed in paragraph 120 of the judgment. Thus, the absence of a
formal Section 3 declaration does not dilute the Navy’s authority to object.
53. It is submitted that in Dolby Builders Pvt. Ltd. vs. Municipal Corporation
of Greater Mumbai,(supra), the Bombay High Court has quashed the MoD
circulars on the peculiar facts of the case, which involved reconstruction of a
16 Writ Petition No. 113 of 2019
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Ground + 2 structure that had existed since the year 1940. The reasoning of the
Court was on the petitioner’s reconstructing the same height structure and that
such decision would not apply to multi-storey buildings/redevelopment. It is
submitted tha the Supreme Court in Union of India vs. Dolby Builders Pvt. Ltd.
(supra) clarified that the High Court’s quashing of the circulars applies only inter
parties, i.e., only to Dolby and that the Supreme Court did not hold that the
circulars are invalid. The Supreme Court also did not affirm the High Court’s
reasoning , it merely limited the effect of the judgment to the parties before it.
For such reasoning, the MoD circulars remain valid and enforceable for all cases
except Dolby. Thus, the position in Dolby cannot be used by the petitioner to
assert that the Navy is barred from objecting to construction near defence
establishment in other cases.
54. In Union of India through the Indian Army vs. State of Maharashtra
through the Urban Development Department & Ors. (Adarsh case) 17, the
Bombay High Court has held that when national interest is pitted against private
interest, naturally, national interest must be protected as against private interest.
55. It is submitted that in Ravindra Mutenja & Ors. vs. Municipal
Corporation of Greater Mumbai & Ors. 18, this Court while relying on the
decision in Bombay Environmental Action Group vs. Bombay Municipal
Corporation19 in paragraph 38 held that illegalities will not be tolerated merely
17 2016 SCC OnLine Bom 2570
18 2003 SCC OnLine Bom 241
19 1995(2) Mh. L.J. 440
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because someone is willing to offer payment in lieu of violating the law. It is
therefore, submitted that the petition be dismissed.
Rejoinder submissions on behalf of the Petitioner
56. Mr. Kadam, learned senior counsel for the petitioner has made following
submissions in rejoinder. The contention of respondent no. 3 that the circulars
are legal, valid and binding is not correct, for the reason that the same are not
delegated legislation under the Works of Defence Act, 1903 nor do they have any
statutory force. At the highest, they are administrative instructions, which cannot
affect rights under Article 300A of the Constitution. In any event, it is the
petitioner’s case that the circulars stand superseded by the circular dated 23
December, 2022. It is next submitted that respondent no. 3’s contention that the
petition is premature is also not correct and is without merit, the reason being
that the building has already been completed, or in any event, is substantially
completed and at no time prior thereto was any NOC demanded from the
petitioner. It is submitted that where there is no legal requirement to obtain
NOC, the question of thereafter seeking such NOC does not arise. Further, as a
matter of fact, the record reflects that respondent no. 3 has already expressed its
mind that an NOC is not recommended from a security point of view. It is next
submitted that respondent nos. 3’s contention, namely, it is not for the defence
authorities to take objections but for applicants to approach them in each case, is
belied by the circular of 2011, which makes it incumbent upon the Station
Commander to object and for such reason, it is his obligation to do so. It is also
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denied that respondent no. 3’s contention that defence NOC is required under
Regulation 59 is also misconceived, on which submissions are already made by
the petitioner.
57. It is next submitted that the contention of respondent no. 3 that the
situation in the present case is covered by Clause 2(i) of the Circular dated 23
December, 2022 is also incorrect and has been addressed by the petitioner. It is
next submitted that respondent no. 3’s contention that keeping of a circular in
abeyance also keeps its supersession in abeyance is incorrect and contrary to law
as laid down by the Supreme Court in State of Uttar Pradesh & Ors. vs. Hirendra
Pal Singh & Ors. (supra), the decision in Joint Action Committee of Airline
Pilots Association of India & Ors. vs. D.G.C.A. & Ors. (supra) and in
Brihanmumbai Mahanagarpalika & Anr. vs. Secretary, Bar Council of
Maharashtra and Goa & Anr. (supra)
58. It is next submitted that the reliance on the decision in Gorakhnath
Nakhua and Vikram Delite (supra) is misconceived, as this judgment is clearly
distinguishable. Also such judgment having not considered the legal position as
laid down in B.K. Ravichandra vs. Union of India (supra) that the right to
property under Article 300-A is a valuable right which cannot be blocked in an
oblique and indirect fashion. Further, the law of development of town planning
should be explicit about the nature and effect of the deprivation, expressing the
intention to do so. Mr. Kadam, therefore, submitted that the petition needs to be
allowed on such clear case of the petitioner.
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Analysis and Conclusion
59. We have heard learned senior counsel for the parties. With their
assistance, we have perused the record.
60. At the outset, the questions which arise for consideration of this Court in
the present proceedings are to the following effect:-
i) Whether in the facts and circumstances of the case, the
insistence by respondent no. 3-Naval Authorities of a NOC in
regard to the petitioner’s construction is legal, valid and justified?
ii) Whether the action of MHADA in granting
Commencement Certificate from time to time permitting
completion of the entire construction by the petitioner was legal
and valid?
iii) Whether the impugned stopwork notice dated 24 October,
2025 and the impugned communication dated 29 October, 2025
rejecting the petitioner’s application for an Occupation Certificate
on the ground of petitioner having not obtained NOC from
respondent no. 3 are legal and valid?
61. To examine and answer the aforesaid questions, we refer to some of the
basic facts which are not in dispute.
62. The petition concerns the redevelopment of Building No.41 in
Maharashtra Housing and Area Development Authority (MHADA) layout at
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C.S.No.209 (part) admeasuring 1601.25 sq.meters at Adarsh Nagar, Worli,
which is owned by respondent No.4 – Prabhadevi Indraprastha Co-operative
Housing Society Ltd. (for short ‘the society’). The MHADA is the lessee of the
plot and the Municipal Corporation for Greater Mumbai (MCGM) is the owner
of the plot.
63. The said building No.41 was constructed in the year 1953 to house 72
occupants and their families. In the year 1981 on 10 June 2009 the MHADA
had executed a 99 year tenure sub-lease of the underlying land and a sale deed of
the building in favour of respondent No.4’s co-operative society.
64. By the year 2022, the age of the building was about 69 years and it had
become dilapidated by passage of time, hence, the building certainly required
redevelopment. Accordingly, on 31 March 2022 a development agreement was
entered between the petitioner and respondent No.4-society for redeveloping the
said building. Also a Power of Attorney is executed in favour of the petitioner by
respondent no.4 – co-operative society. On 26 June 2022 MHADA being a
planning authority under the Maharashtra Regional Town Planning Act, issued
an Intimation of Approval (IOA) on the plan submitted by the petitioner on one
rehabilitation building and one cess building.
65. After receipt of the IOA (supra) between September 2022 to November
2022, building No.41 in question was demolished and all 72 members of
respondent No.4 – co-operative society were shifted to transit accommodation.
As on date, that is almost after four years, 72 members of the society are still
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awaiting their rehabilitation. Thereafter, on 3 February 2023, the MHADA
granted first Commencement Certificate to the petitioner for shore pilling. In
pursuance thereto, the petitioner commenced the work on 12 April 2023, and
the consequent Commencement Certificate was granted by MHADA to the
petitioner in pursuance of which the petitioner completed the work of
rehabilitation building upto stilt and sixth level podium of the sale building.
66. Thereafter, the petitioner’s application for further Commencement
Certificate was not being decided by MHADA. The petitioner therefore
approached this Court on 5 March 2024 by filing Writ Petition No.1437 of 2024
seeking direction to the MHADA to decide the pending application for further
Commencement Certificate
67. On 20 March 2024, the MHADA made a statement before this Court that
the MHADA would consider the petitioner’s application for further
Commencement Certificate within fifteen days. Consequent thereto on 5 April
2022, the MHADA granted third Commencement Certificate to the petitioner
for construction of “full rehabilitation building”. Consequent thereto on 15 April
2024, Writ Petition No.1437 of 2024 was disposed of by this Court in view of
the MHADA’s compliance.
68. On such backdrop, on 30 May 2024 the MHADA granted the petitioner
the “fourth Commencement Certificate” for construction upto 21 st floor of the
“Sale building”. Thereafter, on 23 October 2024, the MHADA granted “fifth
Commencement Certificate” to the petitioner for construction of additional
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floors for the rehabilitation building. On 25 February 2025, the MHADA issued
an amended IOA in favour of the petitioner.
69. It is at this juncture, the issue in regard to the NOC of respondent No.3 –
Navy came to the light, as for the first time vide letter dated 14 July 2025
addressed by MHADA to the petitioner, the petitioner’s say was called for in
regard to the letter issued by respondent No.3 to the MHADA. The said letter
addressed by the Commander, Work Officer of respondent No.3 to the Chief
Engineer, MHADA is required to be noted which reads thus:
“INS Trata
Sir Pochkhanwala Road
Near RTO(E), Worli
Mumbai 400030Quoting: 624/WK/NOC/209(PT) dated 23 Jun 25
The Chief Engineer
MHADA
Griha Nimman Bhavan
Kalanagar, Bandra (East)
Mumbai 400051CONSTRUCTION ACTIVITY AT PROPERTY BEARING CS NO
209(PT) OF WORLI DIVISION SITUATED ON BALAJI TEMKAR
MARG AT WORLI, MUMBAI-4000030.
1 Refer to the following:-
1.1. MHADA/CE III letter MH/EE//B.P.)/GM/MHADA/ET-387/2023
DATED 118 Dec 2023
1.2. INS Trata letter 624/WK/NOC/209 (PT) dated 05 Oct 23, 06 Nov 23
and 19 Dec 23.
2 Background. This letter pertains to redevelopment of Municipal tenanted
acquired property bearing C.S. No 209 (PL) of Worli Division, situated on
Balaji Temkar Marg at Worli, Mumbai. INS Trata vide its letter dated 05 Oct
23 had intimated MHADA that the location of construction is about 300m
from INS Trata defense Land Site II and falls within 500m from Site II, III
and IV. Further, it was also intimated that the NOC for constructions within
500m of defence establishments is necessary law Ministry of Defence
guidelines for issue of NOC As no reply was received a follow up letter was
sent on 22 Nov 23 MHADA vide its letter quoted above dated 19 Dec 23
intimated the following:
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WPL-36387-25.DOC2.1. As per DP remarks the subjected property does not fall in vicinity
of Naval Establishment & as per survey reports submitted by IRS
Chennai, the shorter distance of subjected site & Naval INS Trata is
528.82 meters, i.e. the subjected site is beyond 500 mtrs from delence
establishment.
2.2. Circulars dated 18.05.2011, 18.03.2015, 17.11.2015 and
23.12.2022 are quashed and set aside by court.
2.3. Therefore, neither the 2011 guideline of the 2010 guideline can be
applied today.
3. Present Scenario. Following remarks are submitted in respect of the
abovementioned construction activity:
3.1 The distance submitted by IRS Chennai as mentioned in MHADA letter
dated 18 Dec 23 has been shown as 520.82m, however it is submitted that
this distance is from Site I of INS Trata. The closest distance between the
construction site and boundary wall of Site II of INS Trata is 280m. It is
reiterated that this fact has already been mentioned by INS Trata through the
letters quoted at Para 1 1 above.
3.2. Based on SLP filed by Indian Navy, The Hon’ble Supreme court has set
aside the Hon’ble Mumbai High Court judgement which had quashed the
MoD circulars of 18 May 11, 18 Mar 15, 17 Nov 15 and 23 Dec 22.
Therefore, the restriction with respect to obtaining NOC for any construction
within 500m of defence land still exists.
4. In view of the foregoing, following is requested:-
4.1. Forward details of Naval NOC if held/ available.
4.2. In case of NOC not available, NOC be sought as per extant regulations
and in the interim, Stop Work Notice be issued for the above-mentioned
construction.
(Kumar Gaulam)
Commander Works Officer for Commanding Officer
Copy to:-
The Flag Officer Commanding-in-Chief (for CWO/ SO (Land))
Headquarters, Western Naval Command
Mumbai 400001The Flag Officer Commanding
(for ALIO)
Headquarters Maharashtra Naval area
2 Floor, Manor House
SBS road, Mumbai 400023″
(emphasis supplied)
70. It is the petitioner’s case that the petitioner was not aware about any
correspondence whatsoever between respondent No.3 and MHADA in relation
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addressed to the petitioner seeking the petitioner’s say by the following letter:
“Building Permission Cell, Greater Mumbai / Mhada
(A designed Planning Authority for MHADA layout constituted as per
Government Regulation No.TPB4315/167/CR-51/2015/UD-II DT.23 May
2018)
No.EE/BP/Cell/GM/MHADA/Et-1164/2025
Date :- 14July 2025
To,
1. Developer, 2. Architect, Shri. Nilesh H.
M/s. Techno Fresh World LLP. Dholakia,
6, Narayan Mansion, Plot No.166A, M/s. Saachi Associates,
1st Floor, Dr. Babasaheb Ambedkar L-21, M. R. Society, Relief Road,
Marg, Santacruz (W), Mumbai-400054
Khodad Circle, Mumbai-14.
Sub.:- Proposed reconstruction of existing residential building No.41 known
as INDRAPRASTHA CHSL, Adarsh Nagar, MHADA Layout, bearing
C.S.No.209(pt), of Worli Division, at the junction of Balaji Temkar Marg &
New Prabhadevi Road, situated at G/S Ward, at Worli, Mumbai.
Ref:- 1. Letter received from Mr. Kumar Gautam, Commander, Works
Officer, for commanding officer, INS Trata letter No.624/WK/NOC/209(pt)
on dtd. 03.07.2025
2. Letter received from Himanshu Sharma, Lieutenant Commander,
Executive Officer (AOL), for commanding officer, INS Trata letter
No.624/WK/NOC/209(pt) on dtd. 03.07.2025.
Sir,
Adverting to above cited subject please find enclosed herewith the
letter under reference received from INS Trata. (i.e. Western Naval
Command/Navy)
Vide letter under references the Naval Officers has instructed this
office to issue Stop Work Notice for subjected work.
In view of the above you are requested to submit your say within 3
days so that this office will be able to answers the letter under references.
This is for your information & necessary action please.
Yours faithfully,
D.A. As above.
Executive Engineer (W.S.)
B.P. Cell/G.M./MHADA.
(emphasis supplied)
71. The petitioner replied to the MHADA letter by its letter dated 14 July
2025 which was received by MHADA on 15 July 2025, inter alia stating that its
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development permission was granted under the 23 December 2022 circular. It
was stated that the Navy authorities had relaxed the limit vide circular dated 23
December 2022 wherein the limit was reduced to 50 meters. In such letter it was
stated that the first Commencement Certificate was issued on 3 February 2023
which was after reduction of limit from 500 meters to 50 meters of all sites of
INS Trata as per circular dated 23 December 2022 (supra). It was recorded that
suddenly out of the blue, Navy issued another circular on 23 February 2023 that
the circular dated 23 December 2022 has been kept in abeyance till further
orders. It is recorded that the Navy cannot and has not withdrawn the circular
retrospectively. There was no mention of any such retrospective withdrawal of the
circular dated 23 December 2022. The petitioner has also recorded that further
Commencement Certificate was granted to the petitioner in compliance of the
orders passed by this Court in Writ Petition No. 1437 of 2024 and that the
MHADA had granted approval and issued further Commencement Certificate,
in alignment with its vision of timely delivery of houses to all the families of the
existing society members and the home buyers. It is also stated that further two
more Commencement Certificates have been granted on 30 May 2024 and 23
October 2024 and as on such date the petitioner had completed the
rehabilitation building upto 20 floors and in the sale building the petitioner has
completed construction upto 20 floors and has applied for further
Commencement Certificate. It is also stated that the petitioner had been 100%
compliant of all existing laws applicable at the time of obtaining approvals and
was also in process of applying for final Occupation Ceritifcate for rehab
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building. It was further stated that the rehab building has been completed in
record time of 26 months with the best of workmanship. Significantly it was
recorded that the Navy Authorities are unnecessarily raising the issue when the
first Commencement Certificate was granted in the intermediate period when
circular of 23 December 2022 was in force and Navy now cannot take the stand
to issue stop work notice. It was also pointed out that so many buildings have
been constructed in the vicinity which are at 120 meters and are in limit of 500
meters and are constructed even before Navy has reduced the limit to 50 meters
as per circular dated 23 December 2022. It was hence, submitted that the letters
issued by INS Trata are not just bad in law but also in spirit, whereby they are
unnecessarily trying to delay the rehabilitation of the 72 families of the existing
society members, who have been eagerly waiting to be rehoused in their dream
homes as well as the home buyers who have invested their hard earned money.
On such backdrop, it was requested that further Commencement Certificate be
issued for the sale building above 20th floor at the earliest.
72. After the aforesaid representation was made by the petitioner, dealing with
the contentions of respondent No.3 on granting of any Naval NOC, on 11
August 2025 the MHADA accepted the petitioner’s representation and granted
the petitioner a “sixth commencement certificate” for construction of the full sale
building.
73. Thereafter, on 28 August 2025 the petitioner had applied for an
Occupation certificates and again on 10 October 2025 a second application was
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made for Occupation Certificate. However, on both the occasions the
applications were returned for want of technical compliance. The petitioner again
applied after completing all technical formalities on 16 October 2025 for grant of
Occupation Certificate. However, the same was not being granted. It is the
petitioner’s case that on 20 October 2025 the MHADA and representative of
respondent No.3 had a joint meeting wherein they decided on a stop work
notice being issued to the petitioner to stop work on the development. In
pursuance thereto on 24 October 2025 the MHADA, in view of the letter
received from Himanshu Sharma, Lieutenant Commander, Executive Officer
(AOI), for Commanding Officer, INS Trata, issued to the petitioner, a stop work
notice till the submission of Naval NOC. The impugned communication dated
24 October 2025 is required to be noted which reads thus:-
“Building Permission Cell, Greater Mumbai / Mhada
(A designed Planning Authority for MHADA layout constituted as per
Government Regulation No.TPB4315/167/CR-51/2015/UD-II DT.23 May
2018)
No.EE/BP/Cell/GM/MHADA/Et-1595/2025
Date :- 24 October 2025
Stop Work NoticeTo,
1. Developer, 2. Architect, Shri. Nilesh H.
M/s. Techno Fresh World LLP. Dholakia,
6, Narayan Mansion, Plot No.166A, M/s. Saachi Associates,
1st Floor, Dr. Babasaheb Ambedkar L-21, M. R. Society, Relief Road,
Marg, Santacruz (W), Mumbai-400054
Khodad Circle, Mumbai-14.
Sub.:- Proposed reconstruction of existing residential building No.41 known
as INDRAPRASTHA CHSL, Adarsh Nagar, MHADA Layout, bearing
C.S.No.209(pt), of Worli Division, at the junction of Balaji Temkar Marg &
New Prabhadevi Road, situated at G/S Ward, at Worli, Mumbai.
Ref:- . Letter received from Himanshu Sharma, Lieutenant Commander,
Executive Offer (AOL), for commanding officer, INS Trata letter
No.624/WK/NOC/209(pt) on dtd. 02.09.2025.
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Sir,
Adverting to above cited subject please find enclosed herewith the letter
under reference received from INS Trata. (i.e. Lieutenant Commander,
Executive Offer (AOL))
In this letter the Naval Department mentioned that the construction
activity is still in progress at the subjected site. The Naval Department has
informed this office to issue stop work notice for subjected building.
Therefore, you are hereby instructed to Stop Work Notice of subjected
building till the submission of Naval NOC.
This is for your information & urgent action please.
Yours faithfully,
Executive Engineer (W.S.)
B.P. Cell/G.M./MHADA.”
(emphasis supplied)
74. The petitioner immediately on 29 October 2025 addressed a reply to the
stop work notice inter alia pointing out serious prejudice which is being caused to
the petitioner although the entire construction was carried out in accordance with
law and no requirement of NOC from Naval authorities was insisted during the
construction being undertaken, and now a stop work notice was issued when the
construction is already completed and the Occupation Certificate has been
applied, which is baseless and illegal. It was also pointed out that till the said date
almost Rs.40 crores have been paid as premiums to MHADA under various
heads and all permissions were granted without any whisper with respect to
requirement of any permission from Naval authorities. The petitioner’s
application for Occupation Certificate was rejected by MHADA on the ground
that the petitioner had not obtained NOC from respondent No.3-Navy. The
petitioner on such premise has contended that the petitioner has spent almost
Rs.200 crores in developing the property and Rs.40 crores being paid as
premiums to MHADA and the rehab building is completed and the sale building
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is substantially completed and in these circumstances, serious prejudice not only
to the 72 occupants / members of respondent No.4 society, but also to the
bonafide flat purchasers.
75. It is thus the petitioner’s case that the valuable property rights guaranteed
to the petitioner under Article 300A of the Constitution as also the rights
guaranteed under Article 14 of the Constitution have been breached by the
impugned actions of respondent Nos.1 and respondent No.3, more particularly,
when from time to time Commencement Certificates were granted and
construction of the rehabilitation building is complete and construction of the
sale building is almost complete.
76. Having noted the aforesaid undisputed facts, we find that the entire basis
for the MHADA to issue stop work notice dated 24 October 2025 as also the
impugned rejection of the petitioner’s application for Occupation Certificate
dated 29 October 2025 is on the basis of the petitioner not obtaining NOC from
respondent No.3 – Navy. In this regard, at the outset, it is clear from the record
that although the Intimation of Approval was issued to the petitioner on 26 June
2022 and thereafter, the Commencement Certificates were granted firstly on 3
February 2023, then second Commencement Certificate was granted on 12 April
2023, third Commencement Certificate was granted on 5 April 2024, fourth
Commencement Certificate was granted on 30 May 2024, and fifth
Commencement Certificate was granted on 23 October 2024, which all resulted
in the petitioner undertaking construction and completing full construction of
the rehabilitation building and almost having completed the “sale building”, the
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petitioner was never independently informed either by MHADA or respondent
No.3 that the petitioner’s project requires any NOC.
77. It is also significant that for the fist time a letter of MHADA addressed to
the petitioner dated 14 July 2025 was issued in regard to respondent No.3’s
writing to MHADA in regard to the petitioner’s project, and which was
responded by the petitioner by its letter dated 15 July 2025 that such NOC was
not the requirement and it is after such response, on 11 August 2025 a “sixth
Commencement Certificate” came to be granted to the petitioner and in
pursuance of which the construction now stands fully completed for
rehabilitation building and also almost complete in respect of the sale building.
Therefore, it is certainly a situation of the petitioner being taken by a surprise by
the MHADA in confronting the petitioner with such communication from
respondent No.3, that the petitioner was required to obtain NOC in respect of its
construction.
78. On such backdrop, we examine as to what is the policy of respondent
No.3 in regard to grant of NOC and as contained in the circulars as noted by us
hereinabove.
79. The first Circular dated 18 May, 2011 issued by Government of India,
Ministry of Defence as addressed to the Chief of the Defence staff on the subject
“Guidelines for issue of ‘No Objection Certificate (NOC) ‘ for building
constructions” recorded that the issue of NOC for construction on lands adjacent
to Defence Establishments had generated avoidable controversies and that
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various issues involved in regard to two cases, namely, Sukna and Adarsh were
reviewed and the matter was considered in detail by the Government in
consultation with the Services. It was felt that Works of Defence Act, 1903
which imposes restrictions upon use and enjoyment of land in vicinity of Defence
Establishments needs to be comprehensively amended so as to take care of
security concerns of defence forces. It was stated that while the process of
amendment has been put in motion and may take sometime, it was felt necessary
to issue instructions in the interim to regulate grant of NOC. The objective of
these instructions is to strike a balance between the security concerns of the forces
and the right of public to undertake the construction activities on their land.
Following guidelines were laid down:
“(a) 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 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 State Government
agencies or to Municipal authorities, and under no circumstances shall be
conveyed to builders/private parties.
(b) Where the local municipal laws do not so require, yet the Station
Commander feels that any construction coming up within 100 meter (for
multistorey building of more than four storeys the distance shall be 500
meters) radius of defence establishment can be a security hazard, It should
refer the matter immediately to its next higher authority in the chain of its
command. In case the next higher authority is also so convinced, then the
Station Commander may convey its objection/ views to the local
municipality or State Government agencies. In case the municipal
authority/State Government do not take cognizance of the said objection,
then the matter may be taken up with higher authorities, if need be through
AHQ/MoD.
(c) Objection/views/NOC shall not be given by any authority other than
Station Commander to the local municipality or State Government agencies
and shall not be given directly to private parties/builders under any
circumstances.
(d) NOC once issued will not be withdrawn without the approval of the
Service Hqrs.”
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80. On such backdrop, it appears that after the issuance of the aforesaid
guidelines dated 18 May, 2011, several representations were received with regard
to restrictions placed by the said guidelines on the building construction in the
vicinity of Defence Establishments. It was hence decided to undertake a
comprehensive review of the guidelines so as to address issues that had arisen
from the implementation of the said guidelines and accordingly, it was decided by
the Ministry of Defence to modify the Circular dated 18 May, 2011 by adding a
proviso under para 1(b) to the effect that NOC from LMA/Defence
Establishment would not be required in respect of a construction for which
permission had been issued by the competent local municipal authority prior to
18 May, 2011 (date of circular). However, this proviso shall not apply to any
amendment to the said construction permission with regard to height, if such
amendment has been allowed after 18 May, 2011. The Ministry of Defence
informed such modification by its communication dated 18 March, 2015
addressed to the Chief of Defence Staff.
81. On 17 November, 2015, the Ministry of Defence again addressed a
communication to the Chief of Defence Staff on the subject of ‘Guidelines for
issue of ‘No Objection Certificate’ for building construction thereby referring to
the original Circular dated 18 May, 2011, the content of which are to the
following effect:
No.F 11026/2/2011/D(Lands)
Government of India
Ministry of Defence
New Delhi,Page 60 of 95
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To,
The Chief of Army Staff
The Chief of Air Staff
The Chief of Naval StaffSubject: Guidelines for issue of No Objection Certificate (NOC) for
building constructions – regarding.
I am directed to refer to circular of even number dated 18.05.2011
vide which guidelines for issue of No Objection Certificate (NOC) for
building constructions; were Issued. Consequent to
representations/references received with regard to restrictions placed by
these guidelines on building construction in the vicinity of Defence
Establishment where high rise buildings/structures already exist within 500
metres of the periphery, it has been decided to issue following amendments
to guidelines by adding a second provisio under para 1(b) of Circular of
even number dated 18.05.2011 as follows:
“Wherever buildings/structures of four storeys or more already exist
within 500 metres of the periphery of any Defence establishment and the
construction proposed is in line with or behind i.e., In the shadow or shield
of such building/structure, the State Government/Municipal Corporation
may, after obtaining comments from the LMA and giving due
consideration to the same, decide whether to approve such proposals or
not. LMA shall give his comments within a period of 30 days from the date
of receipt of a reference from the State government/Municipal Corporation.
This order will be implemented prospectively.”
2. In respect of proposals for construction between the boundary of
the Defence establishments and the existing structure as indicated above
and within 500 metres of the Defence establishments, the guidelines
contained in Circular dated 18.05.2011 with regard to NOC from the LMA
shall continue to apply. Other provisions of the circular dated 18.05.2011
and 18.03.2015 will also remain unchanged.
(Surya Prakash)
Director(L&C)”
82. Thereafter, on 4 April, 2016, the Hon’ble Defence Minister, Government
of India, addressed a letter to the Hon’ble the Chief Minister of the State of
Maharashtra in the context of the guidelines dated 17 November, 2015 and on
which a clarification was sought by the Hon’ble the Chief Minister on the issue of
No Objection Certificate for building construction near Defence establishments
being issued by respondent no. 3. The point-wise clarifications as set out in the
said letter of the Ministry of Defence, Government of India was to the following
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“i) The phrases “in line with or behind” and “by the shadow or shield
of” is meant to indicate construction proposed which is in line with or in
shadow or shield of existing structure within 500 metres radius of the
Defence establishments. Therefore there appears to be no ambiguity.
However, I have directed the Department to examine the matter to remove
ambiguities if any.
ii) The timeframe of 30 days is stipulated so as to cast duty on LMA to
respond with his comments within the timeframe. In case no comments are
received within the time limit it is to be assumed that he has no comments to
offer. Similarly where LMA gives negative remarks it is for the State
Government or Municipal Authority to take a considered decision in the
matter.
iii) In such cases the comments of LMA are required to be obtained if
the permission is granted after 18.5.2011. However, in view of the
clarifications given at (ii) above I see no difficulty in asking such NOC.
iv) The height of the structure may be as per the applicable municipal
laws.
v) The issue of LMA issuing comprehensive guidelines for specific
areas instead of giving cases by case approvals as suggested by you, will be
examined separately.”
83. After almost six years, i.e., 23 December, 2022 in supersession of the
original Circular dated 18 May, 2011 notifying guidelines read with amendments
issued vide circular of even number dated 18 March, 2015 and 17 November,
2015 and NOC guidelines issued vide MoD letter dated 21 October, 2016
regarding grant of No Objection Certificate from the Local Military Authority
(LMA) for construction of buildings in vicinity of defence establishments, fresh
guidelines for issue of NOC came to be issued by the Ministry of Defence vide
circular dated 23 December, 2022 addressed to the Chief of Defence Staff. Fresh
guidelines are required to be noted, which reads thus:
No 11026/20/2011/D(Lands)
Government of India
Ministry of Defence
New Delhi,
Dated 23 December 2022Page 62 of 95
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The Chief of Army Staff
The Chief of Air Staff
The Chief of Naval StaffSubject: Guidelines for issue of ‘No Objection Certificate (NOC) for
building constructions’- regardingReference circular of even number dated 18.05.2011 read with
amendments issued vide circular of even number dated 18.03.2015 &
17.11.2015 and NoC guidelines issued vide MoD letter dated 21.10.2016
regarding grant of No Objection Certificate (NOC) from the Local Military
Authority (LMA) for construction of buildings in vicinity of defence
establishments.
2. In supersession of above guidelines, fresh guidelines for issue of
NOC for construction in vicinity of defence establishments are laid down as
under:-
i. 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
next higher authority not below the rank of Brigadier or equivalent
within tour months of receipt of such requests of within the specified
period, if any, required by law, Objection/views/NOC will be
conveyed only to State Government agencies or to Municipal
authorities, and under no circumstances shall be conveyed to
builders/private parties.
ii. Where the local municipal laws do not require yet the
Station Commander feels that any construction coming up within 50
meter radius of defence establishment which are listed at Annexure
A, is a security hazard, it should refer the matter immediately to its
next higher authority in the chain of its command. In case the next
higher authority is also so convinced, then the Station Commander
may convey its objection views to the local municipality or State
Government agencies. In case the Municipal Authority/State
Government do not take cognizance of the said objection, then the
matter may be taken up with the higher authorities, if need be
through AHQ/MoD. Provided that:-
a) For all other defence establishment not listed at Annexure A,
the said prescribed distance shall be 100 meter (for multistoried
building of more than four storey the distance shall be 500
meter) from the periphery.
b) In such defence establishments not listed at Annexure A,
wherever buildings / structure of four storeys or more already
exist within 500 metres of the periphery of any Defence
establishment and the construction proposed is in the line with
or behind i.e. in the shadow or shield of such building /
structure, the State Government / Municipal Corporation may,
after obtaining comments from the LMA and giving due
consideration to the same, decide whether to approve suchPage 63 of 95
P. V. Rane
WPL-36387-25.DOCproposals or not. LMA shall give his comments within a period
of 30 days from the date of receipt of a reference from the State
Government/Municipal Corporation.
iii. NOC from LMA/defence establishment would not be
required in respect of a construction for which permission had been
issued by the competent authority prior to 18.05.2011. However, this
proviso shall not apply to any amendment to said construction
permission with regard to height, if such amendment has been
allowed after 18.05.2011.
iv. Objection/views/NOC shall not be given by any authority
other than Station Commander to the local municipality or State
Government agencies and shall not be given directly to private
parties/builders under any circumstances.
v. NOC once issued will not be withdrawn without the
approval of the Service HQrs. However, MoD reserves the right to
review any NoC granted by the Station Commander and pass such
order thereon as deemed fit.
vi. These instructions will not apply where constructions are
regulated by the provisions of the existing acts/notification viz.,
Cantonments Act, 2006, Air Craft Act, MOGA, 1934, Gazette
Notification SO 54(E) dated 14.01.2011 (as revised from time to
time), Works of Defence Act, 1903, etc. In such cases provisions of
the concerned Act/Notification will continue to prevail.
(Sharmistha Maitra)
Dir (Lands)”
(emphasis supplied)
84. In the context of the said guidelines in the schedule of the defence
establishment in relation to Navy, following serial no. 5 was made:
“II. Defence establishments/installations under management of Navy,
where security restrictions shall apply upto 50 mtrs. from the outer wall of
such defence establishments/installationsS. No. Name of Station District State
1. …. .. ….
10. INS Trata (Site II, III & Mumbai Maharashtra
Site IV) Worli
85. Thus, the defence establishment in question was an establishment listed in
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Annexure A of the said Circular dated 23 December 2022
86. On 23 February, 2023, the Ministry of Defence addressed a
communication to the Chief of Defence Staff inter alia recording that it was
decided that MoD letter under reference (circular dated 23 December, 2022)
shall be kept in abeyance till further orders.
87. From the aforesaid position as brought about by the circulars, it appears to
be clearly not in dispute that by a Circular dated 23 December, 2022 issued by
Government of India, Ministry of Defence, the earlier guidelines notified by
Circular dated 18 May, 2011 with amendments made to the same vide Circular
dated 18 March, 2015, 17 November, 2015 and NOC guidelines issued vide
MoD letter dated 21 October, 2016 regarding grant of No Objection Certificate
from the Local Military Authority (LMA) for construction of buildings in vicinity
of defence establishments, had stood superseded and fresh guidelines were issued
in terms of what has been provided for in circular dated 23 December, 2022.
88. In its applicability to the project in question, it clearly appears that the
petitioner’s site would stand covered by first paragraph of 2(ii) of the said
circular, which provides that where the local municipal laws do not require yet
the Station Commander feels that any construction coming up within 50 meter
radius of defence establishment which are listed at Annexure A, is a security
hazard, it should refer the matter to the higher authority in the chain of its
command. In case the next higher authority is also so convinced, then the
Station Commander may convey its objection/views to the local municipality or
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State Government agencies. In the event, the Municipal Authority/State
Government do not take cognizance of the said objection, then the matter may
be taken up with the higher authorities, if need be through AHQ/MoD.
Provided that for all other defence establishment not listed at Annexure A, the
said prescribed distance shall be 100 meter (for multistoried building of more
than four storey, the distance shall be 500 meter) from the periphery. This is not
applicable to the petitioner, as the petitioner’s name is listed at Annexure A as
noted hereinabove.
89. Thus, what is clearly brought about is that only if the project of the
petitioner was to be within 50 mtrs. radius of defence establishment and being
listed in Annexure-A, it was necessary to obtain a NOC from respondent no. 3
under the regime of new guidelines dated 23 December, 2022. The petitioner’s
construction permission necessarily fell within the applicability of fresh
guidelines dated 23 December, 2022 inasmuch as, the 1 st Commencement
Certificate was granted to the petitioner on 3 February, 2023 and thereafter the
subsequent Commencement Certificate as noted hereinabove, however, on
respondent No.3’s showing it was about 280 meters from the defence
establishment which is way beyond the prescribed distance of 50 meters under
the latest Circular dated 23 December 2022.
90. Further, it appears that not only for respondent no. 3 but also for
MHADA, an uncertainty and ambiguity was created by MoD addressing a fresh
circular dated 23 February, 2023 whereby it informed the Chief of Defence Staff
that it was decided that the fresh guidelines notified by Circular dated 23
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December, 2022 shall be kept in abeyance till further orders.
91. There are two legal consequences which have arisen, firstly, as to what
would be the effect in the Ministry of Defence issuing the latest
communication /Circular dated 23 February, 2023 as applicable to the petitioner
project informing that the Circulars dated 23 December 2022 was kept in
abeyance and secondly, whether this would result in the regime prior to 23
December, 2022, i.e., original circular dated 18 May, 2011 read with amendments
(supra) being revived and would become applicable.
92. We analyze the legal effect which is brought about. Once by issuance of
fresh guidelines vide Circular dated 23 December, 2022 was notified superseding
the earlier guidelines notified by Circular dated 18 May, 2011, by virtue of such
supersession, the earlier guidelines dated 18 May, 2011 along with its
modification by subsequent circulars dated 18 March, 2015, 17 November, 2015
and 21 October, 2016 stand completely extinguished and/or obliterated. After 23
December, 2022, what would become applicable is to paragraph 2(ii) of the said
circular dated 23 December, 2022 which prescribed a distance of 50 meter radius
from the defence establishment in respect of constructions as listed in Annexure
A. The establishment of INS Trata being notified in ‘Annexure A’ of the said
circular brought about a situation that as the petitioner’s construction was beyond
the distance of more than 50 meters radius of defence establishment, by
applicability of Circular dated 23 December, 2022, NOC of the Naval
establishment was not required.
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93. Further, the effect of the fresh guidelines/circular dated 23 December,
2022 being ordered to be kept in abeyance vide Circular dated 23 February,
2023 issued by the Ministry of Defence, in our opinion, would not revive or
bring to life the already superseded circular dated 18 May, 2011 along with its
modifications. It would be an absurd proposition to hold that the earlier circular
which stood superseded by the subsequent circular would stand automatically
revived and more particularly, the regime under both the circular being totally
distinct. This also for the reason that it is not the case that the circular dated 23
December, 2022 issuing fresh guidelines was already acted upon and the parties
had changed their position like in the petitioner’s case where the petitioner
undertook the construction and has completed the same, in the rehabilitation
building as also majority of the construction for the sale building being
completed. In such context, the petitioner would be correct in their contention
in relying on the decisions in Goan Real Estate and Construction Ltd. & Anr. vs.
Union of India, through Secretary, Ministry of Environment and Ors. (supra);
Brihanmumbai Mahanagarpalika & Anr. vs. Secretary, Bar Council of
Maharashtra and Goa & Anr. (supra), State of Uttar Pradesh & Ors. vs. Hirendra
Pal Singh & Ors. (supra) wherein it appears to have been recognized to be a well-
settled position that the law would recognize the rights of the parties which
would stand crystallized, acting on a particular position in law, even in a case
where a particular notification is subsequently declared to be illegal by the Court,
however, the actions which were taken under the same when the same was held
to be valid. The Supreme Court has clearly held that such rights which stood
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crystallized, till the notification was declared illegal by the Court, all the actions
taken pursuant to the notification so declared illegal would not be affected in any
manner. The relevant observations of the Supreme Court in Goan Real Estate
and Construction Ltd. & Anr. (supra) in this context read thus:
“38. The contention raised on behalf of the respondents that the
construction already completed would not be affected in any manner by
decision of this Court in Indian Council for Enviro-Legal Action (supra) but
incomplete construction cannot be permitted to be completed is devoid of
merits. Two amendments made in the year1994 were declared to be illegal
vide judgment dated April 18, 1996. Till then, its operation was neither stayed
by this Court nor by the Government. Therefore, a citizen was entitled to act
as per the said notification. This Court finds that the rights of the parties were
crystallized by the amending notification till part of the same was declared to
be illegal by this Court. Therefore, notwithstanding the fact that part of the
amending notification was declared illegal by this Court, all orders passed
under the said notification and actions taken pursuant to the said notification
would not be affected in any manner whatsoever.”
94. Similar view was taken by the Division Bench of this Court in
Brihanmumbai Mahanagarpalika & Anr. (supra) in regard to the amendment
which was brought about to Rule 49 of the Bar Council of India Rules. The
Court in such context made the following observations:
“30. For these reasons, we have arrived at the conclusion that the deletion
of the second and third paragraphs of Rule 49 and the corresponding
deletion by the State Bar Council of the exception cannot be regarded as ultra
vires or unreasonable. Moreover, we must also take note of the position in
law that the Court cannot issue a writ of Mandamus to the legislature to enact
a law and similarly a Court cannot direct a subordinate legislative body to
enact a particular rule. In State of Tamil Nadu vs. K.Shyam Sunder, the
Supreme Court held that if an amending Act of the legislature is struck down
for want of legislative competence or on the ground that it is violative of the
fundamental rights in Part-III of the Constitution, it would be unenforceable
in view of Article 13(2) and the old Act would revive. But this proposition of
law, the Supreme Court held, is not applicable to subordinate legislation.
Hence, even if the Court were to strike down the amendment made to Rule
49, that would not result in a revival of Rule 49 in its original form. We must,
however, clarify that for the reasons that we have already indicated, we have
come to the conclusion that the deletion of the second and third paragraphs
of Rule 49 was valid.”
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95. In State of Uttar Pradesh & Ors. vs. Hirendra Pal Singh & Ors. (supra),
the Court was dealing with the distinction between repeal and suspension in the
context of U.P. Legal Remembrancer’s Manual, when the Court observed that the
the High Court vide the impugned interim orders stayed the operation of the
amended provisions of the LR Manual and had directed the State authorities to
consider the applications for renewal etc. when it was urged by the
appellant/State of U.P. that the clauses of the LR Manual which stood repealed do
not survive any more and no direction could have been issued by the High Court
to act upon the non-existing provision. It is in such context, the Supreme Court
held that there is a clear distinction between repeal and suspension of the
statutory provisions and the material difference between both is that repeal
removes the law entirely, when suspended, it still exists and has operation to
other respects except wherein it has been suspended. It was held that a repeal
puts an end to the law whereas a suspension holds it in abeyance. The relevant
observations as made by the Supreme Court are required to be noted, which read
thus:
“18. The High Court vide impugned interim orders stayed the operation of
the amended provisions of the L.R. Manual and directed the State authorities
to consider the applications for renewal etc. under the unamended provisions,
i.e., which stood repealed by the amendment dated 13.8.2008. The question
does arise as to whether such a course is permissible to the High Court for the
reason that it has been canvassed by Shri Patwalia that the clauses of the L.R.
Manual which stood repealed do not survive any more and no direction could
have been given by the High Court to act upon the non-existing provisions.….
24. Thus, there is a clear distinction between repeal and suspension of the
statutory provisions and the material difference between both is that repeal
removes the law entirely; when suspended, it still exists and has operation in
other respects except wherein it has been suspended. Thus, a repeal puts an end
to the law. A suspension holds it in abeyance.
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25. This Court in Bhagat Ram Sharma v. Union of India & Ors., AIR 1988 SC
740, explained the distinction between repeal and amendment observing that
amendment includes abrogation or deletion of a provision in an existing
statutes. If the amendment of an existing law is small, the Act prefaces to
amend; if it is extensive, it repeals and re-enacts it.
26. In fact, the amended provisions of the L.R. Manual are under
challenge before the High Court and the provisions repealed by the
Amendment dated 13.8.2008 are not in existence and it will be assumed that
the same had never been in existence. The Court while examining the validity
of the amended provisions may reach a conclusion that the said provisions are
ultra vires and unconstitutional and strike down the same but that may not
automatically revive the provisions which stood repealed by the said
amendment.
28. In Firm A.T.B. Mehtab Majid and Co. v. State of Madras & Anr., AIR
1963 SC 928, this Court while dealing with a similar issue held :
“20. …… Once the old rule has been substituted by the new rule, it
ceases to exist and it does not automatically get revived when the new
rule is held to be invalid.”
29. Therefore, it is evident that under certain circumstances, an Act which
stood repealed, may revive in case the substituted Act is declared ultra
vires/unconstitutional by the court on the ground of legislative competence
etc., however, the same shall not be the position in case of subordinate
legislation. In the instant case, the L.R. Manual is consisted of executive
instructions, which can be replaced any time by another set of executive
instructions.
30. Therefore, question of revival of the repealed clauses of L.R. Manual in
case the substituted clauses are struck down by the court, would not arise. In
view of this, the interim order would amount to substituting the legal policy by
the judicial order, and thus not sustainable.”
96. Thus, it is clear that there is no question of guidelines issued by the very
first Circular dated 18 May, 2011 getting revived although superseded and
becoming applicable in view of the fresh Circular dated 23 December, 2022
which also was kept in abeyance by Circular dated 23 February, 2023. The
position, in our opinion, is quite peculiar inasmuch as even the 50 meters radius
NOC as contemplated in paragraph 2(ii) of Circular dated 23 December, 2022
also appears to be not applicable, the same being kept in abeyance.
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97. In the aforesaid situation, we consider as to how respondent no. 3 could at
all insist and that too on the backdrop of said actions, which appear to be in the
teeth of Circular dated 23 December, 2022 and the subsequent Circular dated 23
February, 2023 keeping said guidelines in abeyance to insist for NOC. It appears
to be an action per se arbitrary, illegal apart from causing a very serious prejudice
to the petitioner. Thus, the impugned action would be required to be held to be
arbitrary and violative of the petitioner’s right under Article 14 of the
Constitution.
98. This apart, it cannot be overlooked that while the guidelines dated 23
December, 2022 were prevalent, the petitioner was granted the Commencement
Certificates in regard to its construction, which were acted upon and in pursuance
of the several Commencement Certificates thereafter unhesitatingly and
unequivocally issued by MHADA, the petitioner changed its position and
undertook the construction as noted above in respect of rehabilitation building
the construction of which stood completed and in respect of the sale building is
also almost complete. We do not find that there is any fault whatsoever on the
part of the petitioner of not adhering to any of the requirements of law inasmuch
as the petitioner made valid applications for sanction of plans and for grant of
Commencement Certificate, which came to be granted by the Planning Authority
-MHADA. The said permissions are never questioned by any of the authorities
much less by respondent no. 3 in the manner as the law would recognize except
for taking up the matter with the MHADA and merely insisting that the
petitioner applies for grant of NOC. It is, therefore, clear that if the petitioner’s
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construction was to be in any manner objectionable and/or a threat to the
security and safety of the defence establishment, respondent No.3 would have
prevailed upon the planning authority not to issue a single Commencement
Certificate and by exercising appropriate vigilance. However, this is a clear case
where respondent No.3 was never bothered even to take up the issue at the
appropriate time with respondent No.1- MHADA, resulting into the petitioner
obviously acting upon the permissions and completing the construction. It is also
not the stand of respondent No.3-Navy that it would reject and/or not grant
NOC to the petitioner. The insistence is only that the petitioner should apply.
This, in our opinion, is quite strange to say the least, when more particularly
respondent No.3 not only granted permission and/or not objected to the several
constructions in the vicinity as noted by us hereinabove, and as specifically
pleaded by the petitioner (supra). Even otherwise the Ministry of Defence has
thought it appropriate to confine the distance to 50 meters as seen from the
circular dated 23 December 2022. Thus, for structures of the nature which are
not within the parameters as contemplated by paragraph 2(ii) of the said circular
are not a security threat. For such reason respondent No.3 could not have taken
the impugned action against the petitioner’s construction.
99. Such approach of respondent No.3 in our opinion, is another
arbitrariness. It is not the case that respondent no. 3 and its officers are not aware
as to what are the requirements as prescribed by Circular dated 23 December,
2022. Insofar as the distance of the petitioner’s site is concerned, it cannot be
accepted that the officers of respondent no. 3 are not aware about the subsequent
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circular of the Ministry of Defence dated 23 February, 2023 keeping the fresh
guidelines dated 23 December, 2022 in abeyance. What surprises us is that in
the teeth of said circular, the impugned action has been taken, which is a clear
harassment to the petitioner for no rhyme and reason. In such context, in our
opinion, considering the large number of constructions which have come up in
respect of which details are also set out by the petitioner in the petition, which are
standing without NOC and in the vicinity of the INS Trata also depicts the
approach of respondent no. 7 of pick and choose. We, therefore, find much
substance in the arbitrariness of pick and choose being applied by respondent no.
3 apart from what we have observed hereinabove in regard to the applicability of
the fresh guidelines dated 23 December, 2022 and the same being kept in
abeyance vide Circular dated 23 February, 2023.
100. There is another facet of the matter, which also reflects the arbitrariness on
the part of MHADA i.e. MHADA from not only sanctioned the petitioner’s plan
but time to time issued Commencement Certificates, which were acted upon by
the petitioner in undertaking full construction under the said premises. What is
important is that even after the MHADA responded to respondent no. 3’s
communication dated 14 July, 2025, MHADA granted further Commencement
Certificate on 11 August, 2025. Thus, once the Planning Authority has
completely adhered to the requirement of the planning law on the petitioner
fulfilling all the statutory conditions as to on what basis merely acting on the
communication from respondent no. 3, an Occupation Certificate could be
denied to the petitioner and/or such stop work notice can be issued, cannot be
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understood.
101. In the aforesaid context, the petitioner would be correct in its contention
in placing reliance on the decision of the Division Bench of this Court in Shivaji
Nagar Shivkiran Co-operative Housing Society Ltd. & Anr. vs. Maharashtra
Housing and Area Development Authority & Ors. (supra) wherein in an
identical situation as in the present case, the Court while allowing the petition,
considered the effect of fresh guidelines notified by Circular dated 23 December,
2022 and the same being kept in abeyance vide Circular dated 23 February,
2023. The Court observed that holding the circular in abeyance and that too for
an indefinite period cannot revive an earlier restriction inasmuch as the rights of
the petitioner therein had stood crystallized. The relevant observations as made
by the Division Bench are required to be noted, which read thus:
“20. The important factor for our purposes is the substitution of the 2011
and subsequent circulars with a 500-meter distance restriction by the
December 2022 circular at page 102 prescribing a 50-meter distance. If the
December 2022 circular is in operation, then there is no question of an
NOC even being sought. The issue arises because in February 2023, the
December 2022 revised circular was apparently held in abeyance. We do
not see how this holding in abeyance and that too for an indefinite period
could serve to revive an earlier restriction. Further this could only operate
prospectively and could not possibly affect a permission previously granted.
Yet that is precisely what seems to have happened in this case and this is
why we say that there are extremely peculiar facts and circumstances of no
wider or more general applicability.
21. In any event, the settled legal position would be that in the time
window between the December 2020 circular reducing the distance
requirement and the abeyance notification of 26 th December 2023, the
Petitioners’ rights had crystallized, and these cannot now be undone. That
aspect of the law is not contentious.
23. As we noted, since there is an SLP pending, we are making no
observations in regard to the circulars of 2011 (all the subsequent circulars
of 2015, 2016 and 2022) which are part of the judgment in Dolby Builders
Pvt Ltd v Municipal Corporation of Greater Mumbai & Ors.
25. Third, and this is the other peculiarity and singularity of the matter, is
Page 75 of 95
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WPL-36387-25.DOCthe precise location of the plot especially in the context of the other
projects and the further Affidavit that has been filed by the Defence. As we
have noted there is one significant project, Shandilya Terrace, of ground
and 24 for which there is a positive act of the grant of an NOC. There are
also other projects for which no NOC has been required or given. The one
which is in dispute, even if ignored, will make no difference.
26. We do not think that it is possible to accept an argument that in the
application of a set of circulars there can be any pick-and-choose approach.
This would lead straightaway to an Article 14 challenge on the grounds of
arbitrariness and discrimination and would undoubtedly succeed.
27. There is also the aspect of the well-established doctrine of
proportionality which requires that a proper balance be struck between
competing needs, demands or equity.
28. We should not be misunderstood to have held that the requirements
of the defence are immaterial or irrelevant. Indeed, they are not, and none
can suggest otherwise. But it is not for a court to suggest what should be
the prescribed distance. That is a matter solely within the remit of the
executive of the Union of India. The reasons why a particular
establishment is noted as sensitive and as requiring a safety distance are also
not justiciable matters for a court to consider. It may well be that the
Defence believes that a particular installation requires greater safety and
security than another. Those are not reasons that lend themselves to judicial
review. But once those distances, limitations, restrictions, and norms are
prescribed, they must at least be applied uniformly. That is all that we
hold.”
102. We may also note two more decisions of the Division Bench of this Court.
Firstly, in the case of Dolby Builders Pvt. Ltd. & Anr. (supra), in which the Court
in fact had delved on the legality of the circulars to come to a conclusion that the
Circulars dated 18 May, 2011, 18 March, 2015, 17 November, 2015 and 23
December, 2022 are illegal and quashed and set aside the same on the ground
that restrictions on the right to property under Article 300A of the Constitution
cannot be imposed by a mere executive fiat and if at all they are to be imposed,
they must be imposed by following the procedure prescribed under the
legislation occupying the field and in the present case the Works of Defence Act
1903. The Division Bench made the following observations:
Page 76 of 95
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WPL-36387-25.DOC“33. It would be thus clear that the Act 1903 is a comprehensive
legislation and a complete Code, dealing with the restrictions to be imposed
upon the use and enjoyment of the land in the vicinity of work of defence,
the procedure to be followed for imposing the restrictions and
compensating the property owner for imposing restrictions upon his right to
property. Such being the nature of the Act 1903, it would be further clear
that it is an enactment completely occupying the field of curtailing right to
enjoy property of land-owners in the vicinity of Defence Establishments. It
then follows that if any restrictions are to be imposed for use and enjoyment
of the land in the vicinity of Defence Establishments, it must be done by
issuing a declaration imposing restrictions by following the procedure
prescribed in various provisions of Part-II, which also includes provision for
payment of compensation for the abridgment of right of the property owner
to use and enjoy his property. After-all, Act 1903, being a complete Code in
the matter of restrictions to be imposed upon right to enjoy property,
already occupies the field and, therefore, if any restrictions are to be
imposed, they must be in accordance with this law, which occupies the field.
34. In the case of Satwaratna Co-op. Housing Society Ltd. & Anr. Vs.
Bharat Petroleum Corporation Ltd. & Ors., the Apex Court has held that in
the absence of any law which provides for a buffer zone between a refinery
and the residential building, the owner of the land cannot be prevented
from the right to use the land effectively including the right to carry out
redevelopment and/or reconstruction in accordance with law and the rules
and regulations with regard to the construction of buildings. We have
already referred to the cases of B.K. Ravichandra and Ors. and T.
Vijayalakshmi (Supra), which have held that right to property, which
includes a right to construct a building, can be restricted only by reason of a
legislation. In this case, at the cost of repetition, we must say that a
comprehensive legislation governing the field of imposition of restrictions
on use and enjoyment of land in the vicinity of Defence and Naval
Establishments already occupies the field and, therefore, it has to be said
that if any restriction is to be imposed, it must be by following the
procedure prescribed under the legislation which occupies the field.
35. In the present case, the executive instructions issued in terms of the
impugned circulars do not follow the procedure prescribed under the Act
1903; in particular, the procedure as prescribed under Section 3 of the Act
1903. There is no declaration issued by following the said procedure
imposing restrictions upon use and enjoyment of land in the vicinity of INS
Trata and therefore, the impugned circulars are inconsistent with the
provisions of the Act 1903. Learned ASGI, however, submits that even the
impugned circulars, being in the nature of executive instructions, can be
relied upon pending consideration of intended amendments and/or
approval of those amendments to the Act 1903. He relies upon the cases of
S.S.V. Developers and Ors. Vs. Union of India, through Ministry of Defence
and Ors.1 , Sunbeam Enterprises Vs. Municipal Corporation of Greater
Mumbai and Ors. and TCI Industries Ltd. Vs. Municipal Corporation of
Greater Mumbai and Ors.
36. The submission of learned ASGI now would have to be considered
in the light of the law explaining the nature and effect of executive
instructions issued by the Central Government under Article 73 of the
Constitution of India or under Article 162 of the Constitution of India by
the State Government. In the case of P.H. Paul Manoj Pandian Vs. P.
Veldurai, it was held that there are two limitations; firstly, if any Act or lawPage 77 of 95
P. V. Rane
WPL-36387-25.DOChas been made by the State Legislature conferring any function on any
other authority, the Governor is not empowered to make any order in
regard to that matter in exercise of his executive power nor can the
Governor exercise such power in regard to that matter through officers
subordinate to him and, secondly, the vesting in the Governor with the
executive power of the State Government does not create any embargo for
the legislature of the State from making and/or enacting any law conferring
functions on any authority subordinate to the Governor. It was further held
that 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. It was also
held that it is well recognized that in the absence of any parliamentary
legislation on the subject, the State Government has the jurisdiction to act
and to make executive orders. It was further held that if any such orders
were issued because of absence of the legislation, such orders by themselves
would not offend the provisions of the Constitution, or any law, unless they
were contrary to any express provisions of the Constitution or were
repugnant to any enactment or the appropriate legislature. It was also held
that when any legislation would exist, still such executive power can be
exercised to fill in the gaps by issuing various departmental orders. Relevant
observations of the Supreme Court, as they appear in paras 46 and 48, are
reproduced thus :-
“46. Under Article 162 of the Constitution, the executive power of the
State extends to matters with respect to which the State Legislature has
power to make laws. Yet the limitations on the exercise of such
executive power by the government are two fold; first, if any Act or law
has been made by the State Legislature conferring any function on any
other authority, in that case the Governor is not empowered to make
any order in regard to that matter in exercise of his executive power
nor can the Governor exercise such power in regard to that matter
through officers subordinate to him. Secondly, the vesting in the
Governor with the executive power of the State Government does not
create any embargo for the legislature of the State from making and/or
enacting any law conferring functions on any authority subordinate to
the Governor.
48. The powers of the executive are not limited merely to the carrying
out of the laws. In a welfare State, the functions of the executive are
ever widening, which cover within their ambit various aspects of social
and economic activities. Therefore, the executive exercises power to fill
gaps by issuing various departmental orders. The executive power of
the State is coterminous with the legislative power of the State
Legislature. In other words, if the State Legislature has jurisdiction to
make law with respect to a subject, the State executive can make
regulations and issue government orders with respect to it, subject,
however, to the constitutional limitations. Such administrative rules
and/or orders shall be inoperative if the legislature has enacted a law
with respect to the subject. Thus, the High Court was not justified in
brushing aside the Government Order dated 16-11-1951 on the
ground that it contained administrative instructions.
39. In the cases of TCS Industries Ltd., S.S.V. Developers and Sunbeam
Enterprises, the view taken is that even if there is no notification issued
under Section 3 of the Act 1903, the Planning Authority can always insist
for NOC from the Defence Department if the property is situated justPage 78 of 95
P. V. Rane
WPL-36387-25.DOCadjacent to the Defence Establishment. In the case of S.S.V. Developers, it
has been held that the guidelines issued by the Ministry of Defence vide its
circular dated 18th May 2011 for issuance of NOC for building
constructions are not arbitrary as the authorities issuing the guidelines
found that the Works of Defence Act, 1903, which imposes restrictions
upon use and enjoyment of the lands in the vicinity of Defence
Establishments, needs to be comprehensively amended so as to take care of
security concerns of Defence Forces and the process of amendment, already
put in motion, may take some time and as such, in the interregnum,
guidelines providing for necessary safeguards vis-a-vis Defence
Establishments can be issued by the Ministry of Defence, which guidelines
include regulation of grant of NOC. It is further observed that the objective
of these instructions is to strike a balance between security concerns of the
Defence Forces and the right of public to undertake construction activities
on their lands and, therefore, even if the municipal laws do not so require,
yet the Station Commander feels that any construction coming up within
100 meter (for multistorey building of more than four storeys, the distance
shall be 500 meters) radius of defence establishment could be a security
hazard, he can, after seeking confirmation from his own higher authority in
the chain of his command, refuse to grant NOC for construction of such
building.
40. In our respectful submission, the view so taken in the afore-stated
cases of TCI Industries Ltd., S.S.V. Developers and Sunbeam Enterprises
does not take into consideration the law settled in this regard by the
Supreme Court in the cases discussed earlier, in particular the cases of P.H.
Paul Manoj Pandian and Bishambhar Dayal Chandra Mohan, which cases
have been followed by another Coordinate Bench of this court very recently
in the case of Runwal Constructions. Then there is also a body of law
subsequently developed by the Apex Court in the cases of B.K.
Ravichandra, Satwaratna Housing Society and T. Vijayalakshmi, which hold
the field today and lay down in no uncertain terms that in the absence of
any law providing for curtailment of right to enjoy the property, which is a
valuable right under Article 300A of the Constitution of India, no person
can be subjected to any restriction upon his right to construct a residential
house in the residential area. The meaning of the word “law” has been
explained in the case of Bishambhar Dayal Chandra Mohan, which we have
already discussed earlier, and it does not include a circular issued in exercise
of executive power of the Central Government or the State Government at
a time when the relevant legislation already occupies the field. This
subsequent body of law, together with the law settled by the Apex Court in
the cases discussed earlier, which were prior to the judgments in the cases of
TCS Industries Ltd., S.S.V. Developers and Sunbeam Enterprises, now
constitutes an authoritative pronouncement for a proposition that
restrictions upon use and enjoyment of land can be imposed only under an
authority of law and when a relevant law, like the Act 1903, is occupying
the field already, by device of executive instructions, no restrictions can be
imposed on use and enjoyment of the land, though by the executive
instructions only gaps in legislation can be filled. Therefore, we are of the
view that the said cases of TCS Industries Ltd., S.S.V. Developers and
Sunbeam Enterprises relied upon by respondent nos.3 to 6 would render no
assistance to them.
44. In the present case, we have already found that the impugned
Page 79 of 95
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WPL-36387-25.DOCcirculars have not been issued in accordance with the provisions made in
Section 3, read with Section 7, of the Act 1903 and there being already
occupation of the field by the Act 1903, no restrictions could have been
imposed upon use and enjoyment of the subject property by mere executive
instructions and, therefore, we find that the impugned circulars are ultra
vires the provisions of the Works of Defence Act, 1903 and as such are
invalid, deserving to be quashed and set aside by this court. The first
question, i.e. Whether the impugned circulars dated 18th May 2011, 18th
March 2015 and 17th November 2015 issued by Ministry of Defence are
ultra vires the Works of Defence Act, 1903, is answered accordingly.
48. In the present case, however, the comparison sought to be made by
learned Senior Advocate for the petitioners between proposed building of
the petitioners and the other taller buildings situated nearby or in the
vicinity of INS Trata so as to justify construction of a much shorter building
is uncalled for as there is no specific material available on record to enable
the court to find the distinction made by respondent nos.3 to 5 in these two
sets of buildings to be absurd. We are, therefore, of the opinion that reliance
placed by the petitioners upon the comparison between two sets of
buildings standing in the vicinity of INS Trata in order to justify their case
in incorrect.”
103. The other decision is in case of Union of India vs. The State of
Maharashtra & Ors. (supra) in which the Union of India challenged the
Commencement Certificate which was issued in favour of respondent no.3 –
Kappa Realtors LLP, being plots of land situated which are in close proximity to
the Unit of Southern Command Composite Signal Regiment inter alia praying
that said developer be restrained from carrying out any construction within 100
mtrs. from the boundary of the said defence establishment and also demolish the
construction as undertaken. It is in such context, the guidelines issued vide
circular dated 18 May, 2011 were pressed into service. The Court dismissing the
writ petition filed by the Defence, made pertinent observations including
referring to the decision of the Division Bench in Dolby Builders Pvt. Ltd. &
Anr. (supra) as also the settled position in law in regard to rights guaranteed
under Article 300A of the Constitution. Following observations were made by
the Court while dismissing the Writ Petition filed by the Union of India:
Page 80 of 95
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WPL-36387-25.DOC“30. There is one more perspective from which the controversy involved
in the present case is required to be examined. All the circulars above
referred to, which are issued by the Ministry of Defence, are in the nature
of guidelines and none of them appears to be issued in the name of the
“President”. 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”. Similar were the facts involved in
the case of Jambo Plastics Pvt. Ltd. and Anr. Vs. Chief Quality Assurance
Establishment (Warship Equipment), Ministry of Defence, Bangalore
and Ors., before the learned Single Judge of the Karnataka High Court,
where the circular in question, the same circulars dated 18 th May 2011,
17th November 2015 and 21 st October 2016, not issued in the name of
the President, were at issue. In that case, the question was as to whether
the circulars dated 18th May 2011, 17th November 2015 and 21 st October
2016 constituted an order affecting right of the parties or not? The
learned Single Judge, relying upon the decision of the Apex Court in the
State of Uttaranchal and Anr. Vs. Sunil Kumar Vaish and Ors., held that
these circulars or guidelines not having been issued in the name of the
President, as required under Article 77(1) of the Constitution of India,
could not be relied upon by the Union Government to impose any
restrictions as long as the Works of Defence Act, 1903 was in operation
and was not amended. The learned Single Judge in his judgment
reproduced the relevant observations of the Apex Court in the said case
of State of Uttaranchal (Supra), which read thus :-
“24. ….. The noting in the file or even a decision gets
culminated into an order affecting right of the parties only
when it is expressed in the name of the President or the
Governor, as the case may be, and authenticated in the
manner provided in Article 77(2) or Article 166(2)…”
31. Having regard to the aforestated observations of the Apex Court,
which have been followed by the learned Single Judge in the case of
Jambo Plastics Pvt. Ltd. (Supra), we have no hesitation to hold that all
the aforestated 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. These circulars, which have been relied
upon by the petitioner, would not, therefore, confer any right upon the
petitioner to seek any prohibition upon ongoing construction and even
demolition of the construction of the building already made.
31. There is yet another aspect of the matter which we must take into
consideration. In the case of Dolby Builders Pvt. Ltd. and Anr. Vs. The
Municipal Corporation of Greater Mumbai and Ors., the issue involved
was about power of the Union of India to curtail right to enjoy property
of land owners situated in the vicinity of Defence Establishments by
imposing restrictions thereupon by the executive instructions. This court,
while deciding the issue, took into consideration the nature of the right
to property, a constitutional and human right, as explained in the
following cases :
➢ B.K. Ravichandra and Ors. Vs. Union of India and Ors.
➢ Delhi Airtech Services Pvt. Ltd. Vs. State of U.P.
➢ State of Rajasthan Vs. Basant Nahata
➢ T. Vijayalakshmi and Ors. Vs. Town Planning Member andAnr.Page 81 of 95
P. V. Rane
WPL-36387-25.DOC➢ Hari Krishna Mandir Trust Vs. State of Maharashtra and Ors.
➢ Runwal Constructions Vs. Union of India, through Ministry of
Defence and Ors.
➢ Satwaratna Co-op. Housing Society Ltd. & Anr. Vs. Bharat
Petroleum Corporation Ltd. & Ors.
32. This court, considering the above referred law, 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. This court, following the law laid down by the Apex
Court in the case of Bishambhar Dayal Chandra Mohan and Ors. Vs.
State of Uttar Pradesh and Ors., along with connected matters1, held that
no person can be deprived of his property save by authority of law and
the deprivation of property must come under the authority of law and
that the word “law” in the context of Article 300A must mean an Act of
Parliament or of a State Legislature or a Rule or a Statutory Order having
the force of law, which is a State-made law or a positive law. This court
then held, considering the judgment of the Apex Court in the case of
P.H. Paul Manoj Pandian Vs. P. Veldurai, that 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.
33. This court, in Dolby Builders Pvt. Ltd. (Supra), also distinguished
the cases of S.S.V. Developers and Ors. Vs. Union of India, through
Ministry of Defence and Ors., Sunbeam Enterprises Vs. Municipal
Corporation of Greater Mumbai and Ors. and TCI Industries Ltd. Vs.
Municipal Corporation of Greater Mumbai and Ors.. relied upon by
Ministry of Defence and held that those cases would not be applicable to
the facts of the case in hand. These cases are also referred to by the
petitioner here. But, the situation of this case, on facts and law, being
substantially similar as that of Dolby (Supra), these cases would not be
applicable here for the same reasons as stated in Dolby (Supra).
34. There were some other cases which were relied upon in Dolby
(Supra). These cases are as under :-
➢ Hindustan Petroleum Corporation Ltd. Vs. Municipal
Corporation of Greater Mumbai.
➢ Oswal Agro Mills Ltd. Vs. Hindustan Petroleum Corporation
Ltd. and Ors.
➢ Gorakhnath Shankar Nakhwa and Ors. Vs. Municipal
Corporation of Greater Mumbai and Ors.
Page 82 of 95
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WPL-36387-25.DOC➢ Union of India, through Indian Army Vs. State of
Maharashtra, through Urban Development Department and
Ors.
➢ Vikram Delite Co-operative Housing Society and Ors. Vs.
Union of India, through the Ministry of Defence and Ors.
35. The aforestated cases are also relied upon by the petitioner in the
present case. These cases were found to be of not any assistance to the
Ministry of Defence in the case of Dolby (Supra) in view of the fact that
a Central Legislation was occupying the field and, therefore, curtailment
of right to property could not have come through the executive
instructions. Similar is the position here and, therefore, the said cases
would render no assistance to the petitioner here.
36. In Dolby (Supra), this court also considered the provisions of the
Works of Defence Act, 1903 and held that it was a comprehensive
legislation and a complete Code dealing with the restrictions to be
imposed upon the use and enjoyment of land in the vicinity of Works of
Defence Act and, therefore, the procedure, as prescribed therein for
imposing restrictions and also compensating the property owner for such
restrictions, must be followed and this cannot be done by any executive
instructions. The relevant observations of this court are to be found in
paragraph 38 of the judgment in Dolby Builders Pvt. Ltd. (Supra), which
paragraph is reproduced as below :-
“38. The sum and substance of the above referred discussion is that
now it is well settled law that when a Central or State legislation
occupies the field; in the present case, the field is of placing of
restrictions upon use and enjoyment of land or property situated in
the vicinity of Defence Establishments, including Naval
Establishments, such restrictions cannot be imposed by a mere
executive fiat and if at all they are to be imposed, they must be
imposed by following the procedure prescribed under the
legislation occupying the field; in the present case the Act 1903,
and that deprivation of right to property or curtailment of the right
to property, as envisaged under Article 300A of the Constitution of
India, can be done only under the authority of law and the word
“law”, in the context of Article 300A, must mean an Act of
Parliament or a State legislature, or a rule or a statutory order,
having the force of law, which, in other words, is a State-made law
or a Positive Law1 as per the theory of Legal Positivism
propounded by Scholars Jeremy Bentham and John Austin.”
37. In the present case, we have found that the afore-stated circulars of
the Ministry of Defence are not even in the nature of executive
instructions. Rather, they fall under a category of only departmental
circulars binding upon the officers of the department and not the
outsiders or third parties. This category is even below the category of
executive instructions of the Central Government, which instructions
would operate until otherwise provided by Parliament, as provided under
Article 73(2) of the Constitution of India. It would then follow that the
law applicable to the executive instructions in a case where the field is
already occupied by the Central Legislation, as in the present case, would
be applicable with even greater force to the office circulars which are not
issued in the name of the “President”, contrary to mandate of Article
77(1) of the Constitution of India. For this reason also, the aforestated
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circulars cannot be relied upon by the petitioner so as to make an attempt
to restrict the right of the petitioner to enjoy it’s property, which includes
right to make construction in accordance with the permission granted in
that regard by the Competent Authority, which permission is already
granted to the petitioner way back on 8 th August 2008.
38. We thus find that there is no merit in the petition. The petition
stands dismissed. The interim order dated 7th April 2021 is vacated.
Respondent No.2 is directed to issue occupancy certificate in accordance
with law within eight weeks from the date of the judgment”
(emphasis supplied)
104. The aforesaid decision of the Division Bench in Union of India vs. The
State of Maharashtra & Ors. (supra) was assailed by the Union of India before the
Supreme Court in the proceedings of Special Leave Petition (Civil) Diary No.
13483/2024. The said SLP was dismissed by the Supreme Court vide order
dated 27 September, 2024 wherein the Supreme Court categorically observed
that the Court had heard learned ASG for the petitioner and learned senior
counsel for respondent no. 3/caveator and had perused the material on record. It
was observed that having regard to the facts and circumstances of the case, the
Court was not inclined to interfere in the matter and accordingly dismissed the
SLP. The order dated 27 September, 2024 is required to be noted, which reads
thus:
” We have heard Ms. Aishwarya Bhati, learned ASG for the petitioner
and learned senior counsel for caveator/respondent no. 3 and perused the
material on record.
Having regard to the facts and cirumstances of this case, we are not
inclined to interfere in the matter. The Special Leave Petition is hence
dismissed.:
105. We may also observe that the decision in Dolby Builders Pvt. Ltd. & Anr.
(supra) was also assailed by the Union of India before the Supreme Court in the
proceedings of SLP(C) No. 28519/2023, which came to be disposed of in terms
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WPL-36387-25.DOCof consensual arrangement between the parties in terms of the order dated 22
January, 2024. The said order is required to be noted, which reads thus:
” Issue notice to the respondent.
Mr. Umesh Kumar Khaitan learned AOR accepts notice on behalf of
the respondents.
Leave granted.
We have heard learned Additional Solicitor General for the appellants,
learned senior counsel Mr. Mukul Rohatgi for respondent nos. 1 and 2 and
Mr. Maninder Singh for respondent nos.3 and 4 and learned counsel Mr.
Siddharth Dharmadhikari for the respondent-State.
The appellants are aggrieved by the impugned judgment of the division
bench of the Bombay High Court and particularly the operative portion
thereof which, for immediate reference, is extracted as under:
i. Petition is partly allowed.
ii. The Circulars dated 18th May, 2011, 18th March 2015, 17th
November 2015 and 23rd December 2022, issued by respondent nos.3
to 6 are quashed and set aside.
iii. The impugned letter dated 9th March, 2021 issued by respondent
nos.4-Flag Officer, Commanding-in-Chief, as a consequence, is also
quashed and set aside.
iv. Respondent no.1-MCGM is directed to process the application of the
petitioners dated 6th June, 2019, without the requirement of any NOC
from respondent nos.3 to 5, and take an appropriate decision thereon in
accordance with law within a period of four months from the date of the
order.
v. Petition is disposed of in the above terms.
Learned ASG appearing for the appellants submitted that
Direction no.2 by which the circulars dated 18th May, 2011, 18th March
2015, 17th November 2015 and 23rd December 2022 are quashed is a
direction in rem whereas the respondent-writ petitioner before the High
Court have assailed them only insofar as the said petitioners are concerned.
Therefore, the impugned order insofar as the second direction is concerned
being a direction in rem may be set aside in this appeal.
He further submitted that the other directions which have been
issued vis-a-vis the respondents-writ petitioners before the High Court are
concerned would seriously affect the security and defence and the
apprehensions expressed by the appellants herein being serious that portion of
the directions also may be stayed and set aside.
Per contra, learned senior counsel Mr. Mukul Rohatgi
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WPL-36387-25.DOCappearing for the respondents-writ petitioners before the High Court
submitted that the building which has now been demolished for the purpose
of reconstruction comprised of ground + two floors with a height of 12 metres
which was in existence since the mid of 1940s. That the petitioners herein
had no concern regarding security or any other concern vis-avis the old
building which was standing on the subject land. It is only now, when a new
building of a similar height and dimension which is sought to be built that the
appellants have sought to raise issues of security and defence etc. That all
along when the erstwhile building stood on the subject land, there was no
objection whatsoever raised by the appellant Naval Authorities. Therefore,
there is absolutely no reason whatsoever for declining the grant of no
objection to the respondent-writ petitioners before the High Court.
It was also submitted by learned senior counsel Mr. Mukul
Rohatgi that if the directions issued by the High Court vis-avis the
respondent-writ petitioners before the high Court are confined to these
respondents only and there is also compliance of the same then respondent-
writ petitioners before the High Court may not press their pleas regarding the
vires of the aforesaid Circulars. In other words, ‘no objection’ may be granted
to the respondent-writ petitioners before the High Court to develop the
subject land, having regard to the averments and pleas taken by them before
the High Court and on which basis relief has been granted to them. That the
respondent-writ petitioners before the High Court shall strictly abide by the
pleas taken by them before the High Court and on the factual matrix that has
been presented to the High Court.
Having regard to the submissions made at the Bar, we find that
the directions issued by the High Court vis-a-vis the relief sought for by the
respondent-writ petitioners before the High Court insofar as the issuance of
the ‘No Objection Certificate’ and other directions are concerned shall be
complied with by the appellants within a period of one month from today. On
such compliance being made it is recorded that the respondent writ
petitioners before the High Court shall not press their pleas with regard to the
vires of the aforesaid circulars and the same shall stand withdrawn.
Needless to observe that this submission made on behalf of the
respondent-writ petitioners before the High Court is with regard to the
compliance to be made by the appellants vis-a-vis only respondent-the writ
petitioners before the High Court.
It is further needless to observe that if any other party has
assailed the vires of the said Circulars before the High Court or this Court, the
said parties are at liberty to advance all arguments on the vires of the said
circulars in accordance with law.
With the aforesaid observations and directions, the appeal
stands partly allowed and disposed of.
Consequently, the impugned directions of the High Court stand
modified in the aforesaid terms.
Pending application(s), if any, shall also stand disposed of.”
(emphasis supplied)
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106. Having considered the legal position insofar the circulars issued by the
Ministry of Defence are concerned, we now advert to the contention as addressed
on behalf of the parties in regard to the applicability of Regulation 59 of the
DCPR-2034. We find ourselves in complete agreement with Mr. Kadam in
regard to the applicability of Regulation 59 of DCPR, 2034. Regulation 59
provides for “Special Purpose NOCs, which reads thus:
“59. Special Purpose NOCs – Wherever necessary, special purpose
NOCs shall be required to be submitted for the development of plot/s
depending upon the location & type of work as specified in these
Regulations. Observance of requirements of these and all other NOCs
shall be the responsibility of Owner/Developer/Project Proponent.
The Commissioner may grant permissions/approvals for development
based on an undertaking by the Owner/Developer/Project Proponent
that he shall comply with all the requirements of special NOCs, Laws,
and Regulations that are applicable from time to time. The illustrative
list of special purpose NOC’s is mentioned in Appendix III.”
107. The Special Purpose NOCs as provided in Appendix III at Sr. No. 5 reads
thus:
Sr.No. Authority Location
5. Defence Required by the Defence Authority around defence installation
and as notified by Urban Development Department, GoM.
108. It is thus clear from a reading of Regulation 59 (supra) that, wherever
necessary, special purpose NOCs are required to be submitted for the
development of plot/s, depending upon the location and type of work as
specified in the said Regulations. Further, the observance of requirements of
NOCs shall be the responsibility of Owner/Developer/Project Proponent. The
Commissioner may, however, grant permissions/approvals for development based
on an undertaking by the Owner/Developer/Project Proponent that all the
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requirements pertaining to special NOCs, Laws, and Regulations shall be duly
complied with, from time to time. Regulation 59 is required to be read in the
context of the illustrative list of special purpose NOC’s as set out in Appendix III,
in the present case, sr. no. 5 (supra).
109. Insofar as the defence NOC is concerned, such requirement as stipulated
in sr. no. 5 (Appendix III) (supra) is to the effect of a ” NOC required by Defence
Authority around defence installations and as notified by the Urban
Development Department, Government of Maharashtra”. It is composite in
nature, i.e., entails, firstly, a requirement of the Defence Authority in respect of
construction around the defence installation, and secondly, such requirement
must be notified to that effect by the Urban Development Department,
Government of Maharashtra. Thus, sr. no. 5 cannot be read disjunctively; it
must necessarily be read conjunctively inasmuch as the issue in regard to
planning and construction falls within the domain of the Urban Development
Department, Government of Maharashtra, being the principal authority under
the provisions of Maharashtra Regional and Town Planning Act, 1966 (“MRTP
Act”). The Planning Authority functions under the directives of the State
Government as per the scheme of the MRTP Act. Thus, the ultimate control
over the grant of building permission vests in the Planning Authority and under
the directives of the State Government.
110. The issuance of defence NOC is something which touches the building
permissions being granted under the MRTP Act, which is exclusively within the
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authority and domain of the State Authorities and not the defence authorities. It
is for such reason, sr. no. 5 of Appendix III (supra) in regard to defence NOC
cannot be read disjunctively, as it is required to have a dual effect on the defence
authorities being required to consider an application for NOC for the reason that
the construction is around the defence establishment and the same needs to be
accepted by the State Authorities, i.e., Urban Development Department.
111. If the word “and” in sr. no. 5 is to be read as “or”, in our opinion, it would
lead to an absurdity and lead to a chaotic situation, as invariably constructions at
the discretion of defence authority would require NOC and such unilateral
imposition of such condition without consultation with the State Government,
would give rise to an unwarranted situation in the matters of planning and
development permission. It is in such context, Hon’ble Chief Minister addressed
a letter dated 19 January, 2016 to the Hon’ble Defence Minister seeking
clarification in regard to the applicability for the Circulars. Further, as held by
the Division Bench of this Court in Dolby Builders Pvt. Ltd. (supra) as also
followed in Union of India vs. State of Maharashtra (supra), as upheld by the
Supreme Court, mere circulars issued by the Ministry of Defence cannot in any
manner become binding on the State Government or alter or obliterate the
operation of the provisions of the State law, namely, MRTP Act as also the
DCPR, 2034.
112. In this view of the matter, we are not inclined to accept Mr. Govilkar’s
submission on Regulation 59 being read in a manner as if it provides a carte
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blanche to the defence authorities to foist mandatory NOCs. Also, for such
reason, the petitioner could not have been unilaterally imposed of such
requirement of NOC and for such purpose, the impugned stop work notice as
also withholding of Occupation Certificate would be required to be held to be
arbitrary and illegal.
113. Now we discuss the decisions relied on behalf of respondent no. 3. Insofar
as reliance on behalf of respondent no. 3 to the decision in Gorakhnath Shankar
Nakhwa & Ors. (supra) as also to the decision of Vikram Delite Co-operative
Housing Society Ltd. (supra) are concerned, the same are not well-founded
inasmuch as these judgments do not concern the issue as arisen in the present
petition, namely, the fresh circular issued by MoD dated 23 December, 2022 and
the subsequent circular dated 23 February, 2023 keeping the same in abeyance.
As also considering the facts of the present case and our aforesaid discussion,
these decisions in no manner would assist respondent no. 3 as also for the reason
that 18 May, 2011 guidelines are no longer in existence and stood extinguished,
being suspended by Circular dated 23 December, 2022.
114. Also the decision in the case of Union of India through the Indian Army
vs. State of Maharashtra through the Urban Development Department & Ors.
(Adarsh case) (supra) would not assist respondent no. 3 in regard to the
observations which are in respect of concerns of security. The decision in Adarsh
case was completely in different set of facts, however, in view of the clear position
as brought about by Circular dated 23 December, 2022 and so far as the
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applicability to the petitioner’s project in terms of what has been described in
paragraph 2(ii) of the said guidelines, certainly such concerns as noted by the
Court in the case of Adarsh are not applicable. The reason also being that the
Ministry of Defence, itself taking a position of within 50 meters radius in relation
to construction as categorized in paragraph 2(ii) of the guidelines dated 23
December, 2022. Further, the consequence as brought about by Circular dated
23 February, 2023 keeping 23 December, 2022 in abeyance, has already been
discussed by us hereinabove.
115. Considering the above discussion, we do not find any substance in the
contentions as urged on behalf of the respondent to the effect that the guidelines
dated 18 May, 2011 were at all applicable and that it was necessary for the
petitioner to first obtain NOC from respondent no. 3 in regard to its construction
and much importantly considering the decision of the Division Bench in Union
of India vs. The State of Maharashtra & Ors. (supra), as held by the Supreme
Court in dismissal of the SLP No. 13483 of 2024 vide order dated 27 September,
2024.
116. While concluding, we may observe that the issues concerning the
insistence on a No Objection Certificate (NOC) from defence authorities require
an appropriate non-arbitrary, fair and reasonable approach by the concerned
authorities strictly as per the requirement of law. If the plea of the Defence
regarding security concerns and threat perception in reality has any basis, all steps
which the law would warrant are required to be taken at the very beginning of
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any construction activity. The Defence authorities taking a position that they
have no control on the civilian areas*, is no answer to any realistic threat/security
perception. There cannot be a casual approach in such matters and more
particularly, like in the present case, where construction has progressed
substantially in accordance with the sanctioned plans and the permission granted
by the planning authority. The Constitution under Article 300A guarantees the
right to property. Such right cannot be infringed or prejudiced in a manner not
recognized by law. It is, therefore, incumbent upon the Defence authorities, in
consultation with the planning authorities, to adopt a realistic and legally
sustainable approach to situations which are realistically objectionable in law. In
the present case, considering that in the vicinity of INS Trata, large number of
buildings already exist, some of which remain undisturbed which have even been
constructed without obtaining an NOC, some being granted NOC, we are of the
opinion that the requirement of NOC cannot be selectively insisted/foisted by
respondent no. 3. Furthermore, the prescribed distance norms, stand varied from
time to time, in the versions, the different circulars set out, which are purely
internal to the Ministry of Defence and which are being foisted on the Planning
Authority operating under the State laws.
117. We are, thus, of the clear opinion that, in respect of each Defence
establishment, if the law so permits, the need is to the effect that instead of
issuing general circulars, a clear and definite policy needs to be formulated strictly
in accordance with law, and not otherwise. This more particularly considering the
* (See reply affidavit on behalf of respondent No.3).
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provisions of Works of Defence Act, 1903 are available or for that matter, if any
other law is applicable. Insofar as INS Trata is concerned, considering the
surrounding habitation and the existence of several buildings in close proximity,
and further considering that the petitioner’s building is situated beyond the
prescribed norms as discussed hereinabove, the insistence on obtaining an NOC
at the final stage of construction as held by us was arbitrary. In fact this ought not
to be the approach in respect of any of such projects, that only when
constructions, which otherwise are legal are at the stage of completion, insistence
for NOC is being made, without realistic steps being taken at the right time, as
law would otherwise require, in the event perception of Defence is genuine and
realistic.
118. In the light of the aforesaid discussion, we answer the questions as framed
by us as under:
i) Answer to question no. 1 – In the facts and circumstances
of the case, the insistence by respondent no. 3 – Naval authorities
of a NOC in regard to the petitioner’s construction was illegal,
invalid and unjustified.
ii) Answer to question no. 2 – The action of MHADA in
granting Commencement Certificate to the petitioner from time
to time permitting completion of the entire construction by the
petitioner was legal and valid.
(iii) Answer to question no. 3 – The impugned stop work
notice dated 24 October, 2025 and the impugned
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WPL-36387-25.DOCcommunication dated 29 October, 2025 rejecting the petitioner’s
application for an Occupation Certificate on the ground of
petitioner having not obtained NOC from respondent no. 3 are
actions which are arbitrary and illegal. Respondent no. 3 was
under legal obligation to grant occupation certificate and it could
not issue the impugned stop work notice in the light of the
aforesaid discussion.
119. As a result, we are of the clear view that the petition needs to succeed. It is
accordingly allowed in terms of prayer clauses (a) and (b).
120. We clarify that considering the view taken by the Division Bench in the
case of Union of India vs. The State of Maharashtra & Ors. (supra), which has
been confirmed by the Supreme Court in dismissing the SLP (Civil) Diary No.
13483/2024 by order dated 27 September, 2024, we do not delve on prayer
clause (c) in which the petitioner has challenged the validity of the Circulars as
issued by MoD.
121. Rule is made absolute in the aforesaid terms. No costs.
122. In view of disposal of Writ Petition, Interim Application would not
survive and the same is accordingly disposed of.
123. At this stage, learned Counsel for Respondent No.3 has prayed for stay of
the operation of the judgment. The same is being opposed on behalf of the
petitioner, as also on behalf of 72 members of respondent No.4 Society, who are
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very anxiously awaiting for taking possession of their tenements. The request is
also opposed on behalf of the flat purchasers in the sale building. Considering
that the project is already delayed and the view we have taken, the request for stay
is rejected.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
Signed by: P.V.Rane Page 95 of 95
Designation: PS To Honourable Judge
Date: 05/05/2026 21:20:18 P. V. Rane
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