HC strikes down MoD circulars imposing curbs on constructions near military bases

The Bombay High Court has struck down circulars issued by the Ministry of Defence, stating that the right to property cannot be curtailed by executive fiats. The court was hearing a petition filed by Dolby Builders, challenging the denial of a no-objection certificate by naval authorities for the reconstruction of a bungalow near a missile battery base. The court ruled that the circulars were invalid and directed the Brihanmumbai Municipal Corporation to decide on the builder's proposal within four months.

Strap: Bench asks BMC to decide within 4 months on builder’s plea for redeveloping plot near INS Trata in Worli

Mumbai, India - Oct. 3, 2023: INS Trata at Worli, in Mumbai, India, on Tuesday, October 3, 2023. (Photo by Anshuman Poyrekar/ Hindustan Times) (Hindustan Times)

The Bombay high court has struck down circulars issued by the ministry of defence which imposed restrictions on constructions around the defence establishments and said that the right to property cannot be curtailed by such executive fiats.

“Deprivation 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 – an act of parliament or a state legislature,” a division bench of justice Sunil Shukre and justice MW Chandwani said in its order last week.

The court was hearing a petition filed by Girish Agarwal, director of Dolby Builders Private Limited. The plea had challenged the denial of a no-objection certificate (NOC) by naval authorities for reconstruction of a ground-plus-two-storied bungalow in Worli, near INS Trata, a missile battery base of the Indian Navy.

The firm had in March 2012 applied to the Brihanmumbai Municipal Corporation (BMC) for redevelopment of their 1,648 square-metre plot in Worli by constructing a multi-storied building – in place of the old structure which was demolished in 2005. Since the property was in close vicinity of the naval establishment, the firm was asked to obtain an NOC from the navy.

However, the commanding officer of the Western Naval Command in July 2012 rejected its plea. The firm then changed its plan and in June 2019 applied to BMC for reconstruction of the ground-plus-two-storied structure – as it existed earlier, and also sought an NOC from naval authorities.

The plea was again rejected by the navy in March 2021 on the grounds that the proposed construction was adjacent to the compound wall of the missile battery base and as such posed a threat to it. As the NOC was denied in view of a circular issued by the defence ministry on December 23, 2022, which prohibited construction within 50 metres of outer walls of defence establishments, the firm challenged the validity of this circular and several other circulars issued on the matter.

The bench accepted the petitioner’s contention that the circulars in the form of executive fiats were invalid as they did not follow the procedure prescribed in the Works of Defence Act, 1903. The restrictions imposed by the circulars violated the firm’s right to use and enjoy the property in an unreasonable manner and thus rendered the property sterile, the court said.

The petitioner firm had also contended that the old ground-plus-two-storied structure was built way back in 1938 and did not pose any threat to the establishment, which was set up in 1991-92, but it became a threat when they sought to reconstruct it.

To this, the court said BMC was not justified in asking the firm to obtain an NOC from the navy for rebuilding the structure.

“It would be illogical and even absurd to say that the same building with the same height at the same place as the earlier building which existed in the vicinity of INS Trata would become a security hazard upon its construction,” the bench said. “What was not a hazardous structure from the security viewpoint would not become so only because it is being constructed anew without any increase in height.”

The court struck down the circulars and directed BMC to decide on the builder’s proposal for reconstructing the building within four months.