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2011 SCC OnLine Bom 1671 : (2012) 2 AIR Bom R 278 : (2012) 5
Bom CR 353

In the High Court of Bombay

(BEFORE P.B. MAJMUDAR AND MRIDULA BHATKAR, JJ.)

TCI Industries Limited a public limited company

incorporated under the provisions of the
Companies Act, 1956 and having its registered
office at 1-7-293, Mahatma Gandhi Road,
Secunderabad-500 003 … Petitioner;
Versus
Municipal Corporation of Greater Bombay, statutory
Corporation incorporated under Bombay
Municipal Corporation Act, 1888 and having its
office at Mahapalika Marg, Mumbai and Others …
Respondents.
Writ Petition No. 2859 of 2006
Decided on December 19, 2011
Advocates who appeared in this case:
Mr. Rohit Kapadia, Senior Advocate, with Mr. Pravin Samdani, Senior
Advocate, along with Miss Bindi Dave, Mr. Kunal Vajani, Mr. Ankit
Virmani, Mr. Sameer Pandit and Mr. Ameya Malkan, instructed by M/s.
Wadia Ghandy & Co., for the petitioner.
Ms. P.A. Purandare for respondent No. 1.
Mr. D.J. Khambata, Additional Solicitor General, with Mr. Rui
Rodrigues and Mr. S.R. Rajguru for respondent No. 2.
Mr. M.D. Naik, Assistant Government Pleader, for respondent No. 3.
The Judgment of the Court was delivered by
P.B. MAJMUDAR, J.:— The petitioner is occupying land admeasuring
10.264 acres located in the Colaba area of the city of Mumbai. The
petitioner is occupying the said land as a lessee by virtue of the
leasehold rights. The petitioner obtained leasehold rights by virtue of an
Indenture of Assignment dated 6th August, 1979 executed between one
Tungabhadra Sugar Works and the petitioner. By virtue of the same,
the petitioner is occupying the said piece of land and is entitled to use
the aforesaid property. The ownership rights in respect of the said
property are duly reflected in the PR cards. In order to carry out
development work, the petitioner took steps for clearing the dues of the
workmen of the mill standing on the said property i.e. Mukesh Mills.
According to the petitioner, they incurred about Rs. 17 crores in this
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behalf.
2. In order to obtain development permission, the petitioner carried
out certain search and they came to know that Respondent No. 2, Union
of India, is asserting its rights over the property. The petitioner, in the
meanwhile also came across a newspaper article published by
Respondent No. 2 in the Times of India dated 2nd December, 2004,
stating that the said property was being acquired for constructing
helipad for civilian flights. According to the petitioner, respondent No.
2, therefore, wanted to acquire the said piece of land for the purpose of
constructing helipad and for expanding its naval base. In connection
with the development permission sought for by the petitioner from the
Municipal Corporation of greater Mumbai, respondent No. 2 addressed a
letter to respondent No. 1 pointing out that the said property is part of
defence land and is on lease to the erstwhile Colaba Land & Mill
Company. The Respondent No. 2, therefore, asked respondent No. 1 not
to grant development permission regarding construction over the said
piece of land. In the meanwhile, correspondence ensued between the
petitioner and respondent Nos. 1 and 2. According to the petitioner,
respondent No. 2 tried to assert its title over the suit property in view
of certain articles in the newspapers. In the meanwhile, the petitioner
sent a letter dated 5th September, 2006 to respondent No. 1 seeking
approval/permission in respect of the development of the said property.
The Respondent No. 1-Corporation informed the petitioner that
development permission is refused on the ground that as per letter
dated 27th July, 2006, no permission to develop the said property be
given without obtaining NOC from respondent No. 2. Since respondent
No. 1 refused to grant development permission to the petitioner on that
ground that unless no objection certificate from respondent No. 2 is
obtained, more particularly from the Indian Navy, development
permission cannot be granted. It is the aforesaid decision of the
Corporation in not granting development permission to the petitioner
that the petitioner has filed this petition challenging the said action.
The petitioner has prayed that appropriate writ, order or direction be
issued calling for the records pertaining to the property in question and
to set aside the decision of the Corporation in refusing development
permission by its letter dated 22nd September, 2006 in connection with
the proposed development of the said property which the petitioner
intended to do. The petitioner also prayed for issuance of a Fresh
Survey Section (City) Report by Respondent No. 1 in respect of the said
property. The petitioner further prayed for issuing appropriate writ or
order directing Respondent No. 2 to refrain from making any claims in
respect of the said property and/or interfering
with/obstructing/preventing the petitioner from developing the said
property.
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3. During the course of hearing, the learned Senior Counsel for the
petitioner states that the petitioner is not pressing prayer clauses (b)
as well as (d) as this Court cannot decide disputed questions of title in
a Writ Petition under Article 226 of the Constitution of India and would
assert its right in appropriate proceedings by way of filing suit or any
other remedy available to the petitioner in this behalf. Learned counsel
for the petitioner submitted that prayer clause (d) is not pressed in
view of the stand taken during the course of arguments by the learned
Additional Solicitor General that they are not asserting their ownership
rights in these proceedings and in view of the said submission prayer
clause (d) is not pressed. It is accordingly clarified that this Court is not
examined the question of title as to whether the Respondent No. 2 is
the owner of the property in question or whether the property in
question belongs to the State of Maharashtra. That question is kept
open for consideration in appropriate forum in future, if so required. In
these proceedings, therefore, the Court is only required to consider the
aspect as to whether Respondent No. 2 is entitled to object the
development permission which is to be granted by respondent No. 1 by
insisting that unless their NOC is obtained, such permission for
development cannot be granted.
4. As stated above, the land in question is located at the Victoria
Bunder Road, Colaba, Mumbai. The adjoining property belongs to
Defence Department and the Navy is having its Station known as INS
Shikra, which was earlier known as INS Kunjali. Since the Navy is
occupying the adjoining area, it has refused to grant NOC on the
ground of security and in view of the same, the respondent-Corporation
has not sanctioned permission to the petitioner to develop the said
property.
5. In order to find out the location of the property as well as to find
out whether under the relevant Rules and Regulations, the Defence
Department is entitled to prevent development activity in the adjoining
area, it is necessary to find out as to in which manner the petitioner has
come into possession of the said property. It is required to be noted
that under an Indenture of Lease dated 9th January, 1878, i.e. the
original lease, lease agreement was entered into between the Secretary
of State for India in Council (the lessor) on the one hand and Colaba
Co. Ltd., who was the original lessee. The said lease was registered on
24th January, 1878. As per the lease agreement, lease was granted for
999 years with effect from 1st January, 1874. Thereafter several
assignments of the leasehold interest had taken place by virtue of
which lessee was entitled to develop the said property. Ultimately,
under the Indenture of Assignment dated 6th August, 1979, one
Tungabhadra Sugar Works, who had come to acquire and hold the
leasehold rights in respect of the property, assigned to the petitioner all
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the leasehold rights, title and interest in respect of the said property.
According to the petitioner, the petitioner was thus entitled to develop
the said property as per the said assignment and was also entitled to
enjoy the said property for the remaining period of lease, which
according to the petitioner, would be about 871 years. Since a textile
mill was also located in the said portion i.e. Mukesh Mill, which was not
functioning, the petitioner, in order to develop the property also cleared
the dues of the workmen of the said mill and thereafter submitted an
application for developing the said property. It is required to be noted
that in the lease deed, the lessee was permitted to develop the said
property. Since it is agreed by both the sides that it is not necessary to
examine the title deeds and to decide as to whether after the
Independence and in view of the provisions of the Govt. of India Act,
Union of India has now become lesser or whether the State Government
has become lesser of the said property. In view of the fact that both the
sides have frankly stated that it is not necessary to examine the title
whether the property vests with the Defence Department or not, the
said point is not required to be adjudicated in this petition and, as
pointed out earlier, the only point which requires consideration is
whether the Navy which occupies the adjoining property having its
naval base is entitled to insist for their NOC for development of the
property in the adjoining area.
6. On behalf of the petitioner, it is submitted by the learned Senior
Counsel Mr. Kapadia that the petitioner is occupying part of the
property which was originally let out to Colaba Company Limited. It is
submitted that the remaining part of the said property is in possession
of other lessees, who have already carried out development in the
adjoining area. It is also submitted that there is a slum in the adjoining
portion of the land which the Navy is occupying. According to Mr.
Kapadia, the point of security raised by Navy is nothing but a bogey for
which there is no basis and foundation. According to the learned
Counsel, as per earlier press report published in Times of India by the
Defence Department in 2003, the Navy had already disclosed its stand
that they wanted to have private helipad landing facility in the area
which is in occupation of the petitioner for Pawan Hans helicopter
services. It is submitted by Mr. Kapadia that with a view to assign this
land for the purpose of private helicopter services that the Navy is
creating a story of defence which in his submission is not justified. It is
further submitted by Mr. Kapadia that out of the entire area of the
leased property, only one portion is in possession of the petitioner as a
lessee and, according to him, petitioner cannot be deprived to use its
property in the manner it wants to use. It is submitted that there is no
requirement under the Maharashtra Regional and Town Planning Act,
1966 (hereinafter referred to as “the MRTP Act”) or under the
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Development Control Regulations for Greater Mumbai, 1991

(hereinafter “the D.C. Regulations”) for getting NOC from the Navy and,
according to him, once the D.C. Regulation does not provide for such
NOC, the Corporation has committed an error in rejecting the
permission sought for by the petitioner. It is further submitted by Mr.
Kapadia that while granting development permission, the Corporation is
required to insist only those things which are provided under the MRTP
Act as well as under the D.C. Regulations and the Corporation cannot
travel beyond the said provisions and insist something which is not
provided under the MRTP Act or the Regulations. It is further submitted
by Mr. Kapadia that even otherwise looking to the location of the nearby
area, it is clear that the security aspect pressed into service by the
Navy is not justified as there are so many high rise buildings nearby
and there is also a slum which is located only just adjoining to Naval
base. It is submitted by Mr. Kapadia that under the Works of Defence
Act, 1903 (hereinafter “the Defence Act”), there is a provision under
Section (3) regarding issuing declaration pointing out that no
development activity may be provided in connection with the area qua
which declaration is issued under Section 3 of the Defence Act. Relying
on the same, it is submitted by Mr. Kapadia that if there is any security
aspect involved in the matter, the Defence Department could have
issued declaration under Section 3 of the said Act but since no such
declaration is issued, it is clear that the security point raised in the
present proceedings is without any basis as there is no threat of
security in any manner. It is further submitted by Mr. Kapadia that
even for the adjoining premises or even the slum, no such declaration
is issued even till today. It is further submitted by Mr. Kapadia that the
petitioners cannot be deprived of its right to use the property
permanently as on one hand Navy is not acquiring the property under
the provisions of the Act and on the other hand, petitioner is deprived
to develop the property indefinitely for years to come.
7. It is further submitted by Mr. Kapadia that if any administrative
order or circular is issued by the State of Maharashtra asking the
development authority not to sanction the development plan without
NOC from the Defence department, if the Defence Department is having
adjoining property, such administrative order or circular cannot have
any binding effect as it is not in consonance with the statutory
provisions contained in the MRTP Act and D.C. Regulations. Mr. Kapadia
has relied upon certain case laws which we will deal with in the latter
part of this judgment.
8. Mr. Khambata, learned Additional Solicitor General, appearing for
the Navy in his turn submitted that the provisions of the MRTP Act
cannot be construed narrowly and so far as the objection of the Navy is
concerned regarding security is most relevant as, according to him,
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looking to the location of the area which the petitioner occupies is just
touching the premises of Navy. It is submitted by Mr. Khambata that if
any high rise building is allowed to be constructed, it may affect the
security of INS Shikra. He further submits that there is a genuine
security risk and as such permission cannot be granted to the adjoining
owner for development. It is submitted by Mr. Khambata that so far as
Section 46 of the MRTP Act is concerned, it is only an enabling provision
and it cannot be read narrowly. It is submitted by Mr. Khambata that
even if there is no specific provision in the Development Control Rules,
yet as per Section 46 of the MRTP Act, the Planning Authority is
required to apply its mind and required to call for necessary documents
to find out as to whether development permission can be granted to the
property in question. It is submitted by Mr. Khambata that whether the
element of security is involved or not is a question which is required to
be left to the expert authority i.e. Navy and if, according to the Navy,
there is a threat of security if adjoining premises are allowed to be
developed, this Court in its extraordinary jurisdiction under Article 226
of the Constitution of India may not interfere with such decision. It is
submitted by Mr. Khambata that it is true that in the nearby vicinity
there are high rise buildings and adjoining area also there is a slum
located. According to him, if in the past the permission is granted
without insistence for NOC from the Navy, the Navy is not estopped
now from insisting for the same, looking to the present situation as
security aspect can always be reviewed by the authorities from time to
time. It is submitted by Mr. Khambata that even as per the provisions
of D.C. Regulations, the Planning Authority can insist for such NOC. It
is submitted by Mr. Khambata that simply in the past, some officers
had informed the press that area in question can be utilised for private
helicopter services, it cannot be said that it is binding even at all stages
and the authority cannot take a fresh decision in this behalf. It is also
submitted by Mr. Khambata that so far as slum is concerned, even
though there is apprehension of security, yet the apprehension is much
more, if on the adjoining premises high rise building is allowed to be
constructed as from the hight a terrorist can very well target a missile
or damage the naval basis. It is submitted by Mr. Khambata that it is
true that under Section 3 of the Defence Act, a declaration can be
issued but that is a very drastic provision which can be resorted to as a
last resort and without resorting the same, if under any other provision
the development work can be permitted, there is nothing wrong if the
authority takes less drastic measure. It is not the mandate of law that
unless notification is issued under Section 3 of the Defence Act, the
Respondents have no right whatsoever refusing NOC for development.
It is submitted by Mr. Khambata that the interest of the petitioner is a
commercial interest as against that there is a national interest
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regarding security of the country and between the two, the national
interest must prevail.
9. It is further submitted by Mr. Khambata that when expert body
like Navy is of the opinion that if high rise building is allowed to be
constructed in the adjoining area, there will be danger to the security
and in such eventuality, the decision of the expert body is required to
be accepted. It is submitted by Mr. Khambata that in any case it cannot
be said that the stand taken by the Navy is arbitrary or without any
basis or foundation. It is further submitted that the power of judicial
review in such a case is very limited and this Court cannot substitute
the say of the Navy by giving its own conclusion about the security
aspect. It is submitted by Mr. Khambata that subsequently the State
Government has also issued instructions by which the Planning
Authority is also directed to obtain NOC from the Defence Department
before granting development permission to the developer.
10. It is submitted by Mr. Khambata that even subsequently the
petitioner had also submitted its plan to the Corporation wherein the
petitioner, as per the plan, wanted to construct a five star hotel and
since the planning authority rejected the same, the petitioner filed an
appeal under Section 47 of the MRTP Act, which is pending before the
State Government. It is submitted by Mr. Khambata that so far as the
Naval base of the Navy is concerned, it is in full swing and operating so
many helicopters of the Navy which is coming every day and
helicopters of VVIPs are landing at the said place. Mr. Khambata
submitted that even recently the American President Mr. Barack Obama
was also landed at this very place. The said naval base is actively used
and in fact important armaments are also kept such as missiles and
there is also radar at the said place. It is submitted that the
apprehension of security aspect is not a bogey created but it is as such
in substance and reality. It is submitted that even regarding old
buildings which are in existence, if any development permission is
asked, Navy will definitely object to the same. It is submitted that the
area in question is a restricted and prohibited area and is governed by
the Official Secrets Act. It is further submitted that it is for the
Respondent Navy to exercise an option and simply because option
under Section 3 of the Defence Act is not exercised, yet other
provisions of the Act can be pressed into service, while refusing to give
NOC for development. It is submitted that under Section 154 of the
MRTP Act, the State Government is empowered to give necessary
direction to the planning authority and in this case in fact the same has
been given. It is submitted that by not granting no objection
certificate, the Navy Department is not taking away the property of the
petitioner in any manner and, therefore, reliance placed on Article 300-
A of the Constitution of India has no relevance whatsoever. Mr.
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Khambata has tried to distinguish the judgments cited by Mr. Kapadia

in this behalf.
11. In rejoinder, Mr. Kapadia has relied upon an unreported
judgment of a Division Bench of this Court in the case of Lok Holding
and Construction Ltd. v. Municipal Corpn. of Greater Mumbai1 as also
judgment of the Privy Council in the case of Nazir Ahmad v. King
Emperor2 . He also submitted that the provision in D.C. Regulation 16
regarding public interest cannot be construed in any other sense and
the said Regulation is to be interpreted by giving appropriate meaning
of public interest as mentioned in Regulation 16. According to Mr.
Kapadia the security aspect is not covered under D.C. Regulation 16
and, therefore, the same cannot be pressed into service.
12. We have heard the learned counsel appearing for the parties at
great length. We have also gone through the provisions of the MRTP
Act, the D.C. Regulations as well as the provisions of the Defence Act,
the Aircraft Act, 1934 and the Rules framed thereunder.
13. The principal question which requires to be decided in this
petition is as to whether the Respondent Corporation is justified in
insisting for NOC from the Defence Department in connection with the
development activity which the petitioner wants to carry out in their
premises. In order to consider this aspect, firstly it is necessary to
consider the location of the place in question. Both the sides have relied
upon various photographs regarding the exact location of the place. It
is of course not in dispute and it is an admitted fact that so far as Naval
base is concerned, wherein INS Shikra is established, the same is
adjacent to the property of the petitioner. There is also a common
compound wall between the premises of the Navy and the petitioner.
The area beyond the boundary wall belongs to the petitioner where the
substantial area is vacant area where some grass and some trees are
located. The premises in question are also touching the sea water. So
far as Navy premises is concerned, there is also constructed building
which according to Mr. Khambata is utilised for keeping armaments and
missiles. This is the factual position so far as the premises in question
are concerned.
14. It is no doubt true that at some distance there are some high
rise buildings. There is also a slum which is on the other side of the
premises of the Navy. On the basis of the aforesaid location, learned
Counsel Mr. Khambata tried to argue that since there is a common wall
between the premises of the petitioner and Navy, that it is all the more
necessary that no construction activity may be allowed to be carried out
in an area which is just adjacent to the Navy area as anybody can easily
climb and jump from one area to another. On the basis of the aforesaid
aspect, it is submitted by Mr. Khambata that the risk of danger is on
the higher side so far as the area of the Petitioner is concerned as
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compared to other high rise buildings, whose borders are not touching
the border of the premises of the Navy, as some buildings are located
at some reasonable distance, though the entire leasehold area originally
belonged to Colaba Company Ltd. In order to appreciate the rival
contentions, it is necessary to rely upon the statutory provisions
contained in various enactments.
15. So far as Municipal Corporation is concerned, the same is a
Planning Authority under the provisions of the MRTP Act, 1966. The
Planning Authority is required to process the development permission
as provided under Section 46 of the MRTP Act. Section 46 provides as
under:
“46. Provisions of Development plan to be considered before
granting permission.- The Planning Authority in considering
application for permission shall have due regard to the provisions of
any draft or final plan or proposals published by means of notice
submitted or sanctioned under this Act.”
15.1 Section 51 of the MRTP Act deals with power of revocation
and modification of permission to development. Section 154 provides
about the control by State Government which reads as under:
“154. Control by State Government.- (1) Every Regional Board,
Planning Authority and Development Authority shall carry out such
directions or instructions as may be issued from time to time by the
State Government for the efficient administration of this Act.
(2) If in, or his connection with, the exercise of its powers and
discharge of its functions by the Regional Board, Planning
Authority or Development Authority under this Act, any dispute
arises between the Regional Board, Planning Authority, and the
State Government, the decision of the State Government on such
dispute shall be final.”
15.2 So far as the Development Control Regulations for Greater
Mumbai, 1991 are concerned, the relevant provisions of Regulation
16 provide as under:
“16. No land shall be used as a site for the construction of
buildings.-
(a) if the Commissioner considers that the site is insanitary or that it
is dangerous to construct a building on it or no water supply is
likely to be available within a reasonable period of time.
…. …… ….
(e) If the use of the said site is for a purpose which in the
Commissioner's opinion may be a source of danger to the health
and safety of the inhabitants of the neighbourhood;
… …. ….
(n) If the proposed development is likely to involves damage to or
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have deleterious impact on or is against urban aesthetics or

environment or ecology and/or historical/architectural/aesthetical
buildings and precincts or is not in the public interest.”
15.3 Section 3 of the Works of Defence Act, 1903 provides as
under:
“3. Declaration and notice that restrictions will be imposed.- (1)
Whenever it appears to the Central Government that it is necessary
to impose restrictions upon the use and enjoyment of land in the
vicinity of any work of defence or of any site intended to be used to
be acquired for any such work, in order that such land may be kept
free from buildings and other obstructions, a declaration shall be
made to that effect under the signature of a Secretary to such
Government or of some officer duly authorised to certify its orders.
(2) The said declaration shall be published in the Official Gazette and
shall state the district or other territorial division in which the land
is situate and the place where a sketch plan of the land, which
shall be prepared on a scale not smaller than six inches to the
mile and shall distinguish the boundaries referred to in Sec. 7
may be inspected, and the Collector shall cause public notice of
the substance of the said declaration to be given at convenient
places in the locality.
(3) The said declaration shall be conclusive proof that it is necessary
to keep the land free from building and other obstructions.”
15.4 So far as helicopter is concerned, it is also considered as an
aircraft under the Aircraft Act, 1934. The Act also prescribes certain
provisions in connection with security of the Airport and aircraft.
Section 9A of the Aircraft Act, 1934 empowers the Central
Government to prohibit or regulate construction of buildings,
planting of trees, etc.
16. Relying on the aforesaid provisions, it is submitted by Mr.
Kapadia that unless there is a notification under Section 3 of the
Defence Act, the security aspect cannot be considered by the Planning
Authority and it is argued by him that even under the Aircraft Act, the
Central Government can prohibit or regulate construction and that
aspect has also not been done in the present case. We have considered
the aforesaid provisions of the MRTP Act and D.C. Regulations as well as
Section 3 of the Defence Act as well as the Aircraft Act.
17. So far as Section 46 of the MRTP Act is concerned, in our view, it
is not possible for us to give such a restricted meaning as canvassed by
the learned counsel for the petitioner. Under Section 46 of the MRTP
Act, the Planning Authority is required to examine the aspect about
granting development permission in an appropriate manner and by
considering the relevant aspects. While granting development
permission, one of the things which the Planning Authority is required
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to consider is to the provisions of the draft or final plan sanctioned

under the Act meaning thereby that if any provision in respect of
anything in the draft or final plan published by means of notice or same
is sanctioned under the Act, the Planning Authority cannot ignore the
same and it has to be taken into consideration. It is impossible for us to
accept the say of Mr. Kapadia that the Planning Authority cannot
consider any other thing except giving due regard to the provisions of
the draft or final plan as mentioned in Section 46 of the MRTP Act. In
our view, Section 46 of the MRTP Act cannot be given such a restricted
meaning and it cannot be said that under Section 46, the Planning
Authority cannot consider any other aspect such as security etc. It is
not possible for us to accept the submission of Mr. Kapadia that Section
46 of the MRTP Act is to be read in such a restrictive manner.
18. It is required to be noted that it is in fact the inherent duty of
the planning authority to apply its mind before giving development
permission and the planning authority is required to keep in mind the
pros and cons of such development permission. For example, if there is
a fire brigade station or refinery or any sensitive object is located at the
place nearby the area for which development permission is sought, the
planning authority cannot shut its eyes and is blindly give sanction only
on the basis that, except what is provided in Section 46, they are not
required to call for any other information. On the contrary, it is the duty
of the planning authority to call for such information otherwise they will
be failing in their duty and they are not required to sanction blindly by
shutting their eyes to the relevant aspect of the matter. In view of the
same, it is not possible for us to accept the submission of Mr. Kapadia
that except what is provided under the MRTP Act and the D.C.
Regulations, the planning authority is not empowered to call for any
other information and to straightaway grant permission and is not
required to call for any other information except the one provided under
Section 46 of the MRTP Act or under the D.C. Regulations.
19. In view of what is stated above, no fault can be found with the
Corporation in insisting for NOC from the Defence Department. Even as
per the D.C. Regulation 16(n), the Planning Authority may refuse to
grant permission of using the land if the proposed development is likely
to involve damage or to have a deleterious impact on or is against the
aesthetics or environment or ecology and/or
historical/architectural/aesthetical building and precincts or is not in
the public interest. In our view, public interest cannot be read in line of
what is mentioned under Regulation 16 regarding environment as
public interest have wide connotation and if any particular development
activity is found to be not in public interest, in a given case, the
development authority can refuse such permission. The public interest,
therefore, is to be read independently to the earlier part of the said
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Regulation i.e. ecology, architectural aspects etc. Reading the

provisions of Section 46 of the MRTP Act, it cannot be said that the
insistence of the planning authority of NOC of a particular department
which, according to the Planning Authority is in public interest, such
insistence cannot be said to be de hors the provisions of the Act and
the Regulations.
20. Section 3 of the Works of Defence Act, 1903 provides for
issuance of declaration and notice. As per the said provision, if the
Central Government is of the opinion to impose restriction upon use
and enjoyment of land in the vicinity, said land is to be kept free from
buildings and other obstructions, a declaration can be issued. It is,
however, required to be noted that in the instant case, the premises
which are in possession of the petitioner are concerned, there is some
construction which has already taken place since long, which is of
course not high rise building and the Respondent has not tried to insist
upon demolition of the same, the question for their NOC arose when
petitioner wanted to develop the property by constructing high rise
building. Under Section 3 of the said Act, even the Central Government
can acquire the property for national interest. In the instant case, the
defence has not thought it fit to issue such a declaration but has tried
to assert its right under the provisions of the MRTP Act and the
Development Control Regulations by which they have not agreed to
give NOC in view of the security reasons. It, therefore, cannot be said
that simply because no declaration under Section 3 of the Act is issued,
the defence was not entitled to insist for their NOC. It is not possible
for us to agree with Mr. Kapadia that unless notification under Section 3
of the Act is issued, the Respondents have no right whatsoever to
object for the development carried and/or for refusing to grant NOC. So
far as Section 3 of the Act is concerned, it has no relevancy so far as
insistence of the planning authority regarding no objection from the
Defence Department is concerned. In a given case, even if there is no
notification under Section 3 of the Defence Act, the planning authority
can always insist for NOC from the Defence Department, if the property
is located just adjacent to the premises of the petitioner. So far as
Section 3 of the Defence Act is concerned, the planning authority
nowhere figures in the picture and the petition has been filed against
the planning authority against their insistence of NOC from the Defence
Department. While considering the said aspect, it is not necessary to
place any reliance on the provisions of Section 3 of the Act as in future
if the Defence is of the opinion that if any declaration is issued for
acquiring the property, it can always proceed on that basis. In that
eventuality, the planning authority nowhere figures in the picture.
Today the dispute of the petitioner is against the planning authority as
according to the petitioner, the planning authority has no right
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whatsoever to insist for NOC from the Defence Department. While

considering the said aspect, it is not necessary that unless there is
declaration under Section 3 of the Act, the planning authority cannot
insist for any NOC or might even refuse to grant NOC on the ground of
public interest. It is not possible for us therefore to accept the
argument of Mr. Kapadia that unless there is a declaration under
Section 3 of the aforesaid Act, it is not open for the Navy to raise the
point of security which, according to him, is nothing but a bogey and
concocted version of the Navy.
21. A strong reliance has been placed by Mr. Kapadia on the
provisions of Article 300-A of the Constitution of India. In order to
substantiate his say that the property of the citizen cannot be taken
away without paying any compensation and that the action of Navy
therefore is in violation of Article 300-A of the Constitution of India. In
order to substantiate his say, Mr. Kapadia has relied upon the decision
of the Supreme Court in the case of Jilubhai Nanbhai Khachar v. State
of Gujarat1 . The Supreme Court has considered the provisions of Article
300-A of the Constitution of India. It has been held as under in
paragraphs 42 and 48 of the said judgment as under:
“42. Property in legal sense means an aggregate of rights which
are guaranteed and protected by law. It extends to every species of
valuable right and interest, more particularly, ownership and
exclusive right to a thing, the right to dispose of the thing in every
legal way, to possess it, to use it, and to exclude everyone else from
interfering with it. The dominion or indefinite right of use or
disposition which one may lawfully exercise over particular things or
subject is called property. The exclusive right of possessing,
enjoying, and disposing of a thing is property in legal parameters.
Therefore, the word ‘property’ connotes everything which is subject
of ownership, corporeal or incorporeal, tangible or intangible, visible
or invisible, real or personal; everything that has an exchangeable
value or which goes to make up wealth or estate or status. Property,
therefore, within the constitutional protection, denotes group of
rights inhering citizen's relation to physical thing, as right to
possess, use and dispose of it in accordance with law. In Ramanatha
Aiyar's The Law Lexicon, Reprint Ed. 1987 at p. 1031 it is stated that
the property is the most comprehensive of all terms which can be
used, inasmuch as it is indicative and descriptive of every possible
interest which the party can have. The term property has a most
extensive signification, and, according to its legal definition, consists
in free use, enjoyment, and disposition by a person of all his
acquisitions, without any control or diminution, save only by the laws
of the land, in Dwarkadas Srinivas's case this Court gave extended
meaning to the word property. Mines, minerals and quarries are
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property attracting Article 300A.

48. The word “property” used in Article 300A must be understood in
the context in which the sovereign power of eminent domain is
exercised by the State and Property expropriated. No abstract
principles could be laid. Each case must be considered in the light
of its own facts and setting. The Phrase ‘deprivation of the
property of a person’ must equally be considered in the fact
situation of a case. Deprivation connotes different concepts.
Article 300A gets attracted to an acquisition or taking possession
of private property, by necessary implication for public purpose, in
accordance with the law made by the Parliament or a State
legislature, a rule or a statutory order having force of law. It is
inherent in every sovereign State by exercising its power of
eminent domain to expropriate private property without owner's
consent. Prima facie, State would be the judge to decide whether
a purpose is a public purpose. But it is not the sole judge. This
will be subject to judicial review and it is the duty of the Court to
determine whether a particular purpose is a public purpose or not.
Public interest has always been considered to be an essential
ingredient of public purpose. But every public purpose does not
fall under Article 300A nor every exercise of eminent domain an
acquisition or taking possession under Article 300A. Generally
speaking preservation of public health or prevention of damage to
life and property are considered to be public purposes. Yet
deprivation of property for any such purpose would not amount to
acquisition or possession taken under Article 300A. It would be by
exercise of the Police power of the State. In other words, Article
300A only limits the powers of the State that no person shall be
deprived of his property save by authority of law. There has to be
no deprivation without any sanction of law. Deprivation by any
other mode is not acquisition or taking possession under Article
300A. In other words, if there is no law, there is no deprivation.
Acquisition of mines, minerals and quarries is deprivation under
Article 300A.”
22. The Supreme Court has held that deprivation of property for any
purpose would not amount to acquisition or possession under Article
300-A but only limits the powers of the State that no person shall be
deprived of his property save by authority of law. If there is no law,
there is no deprivation. Acquisition of mines, minerals and quarries is
deprivation under Article 300-A. So far as the facts of the present case
is concerned, it is required to be note that it cannot be said that the
petitioner is deprived of its property or its rights in the property in any
manner. The Navy Department has refused to grant no objection which
is within their power and on the basis of which the Corporation has not
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granted development permission as per the provisions of the MRTP Act

and D.C. Regulations. The petitioner is not deprived of the possession
or the same is not taken away without any authority of law. It is true
that the petitioner has been deprived of its right to develop the
property. But if that is permissible in law, it cannot be said that the
petitioner has been deprived of its property without any authority of law
in any manner. The only restriction is that by virtue of the aforesaid
order of the Corporation, the petitioner is not permitted to develop its
property and it can enjoy its property as it is as on today. In our view,
therefore, decision cited by Mr. Kapadia in Jilubhai's case cannot be
made applicable especially when the Corporation under the statutory
provision as refused the permission in view of no objection from the
Defence Department and the said Act, therefore, is completely in
consonance with the provisions of the MRTP Act and the D.C.
Regulations. In fact, when D.C. Regulations itself provide that in a
given case permission cannot be granted if it is in public interest and
when these Regulations are not under challenge the effect has to be to
the provisions of the said Regulation.
23. On behalf of the petitioner, reference is made to the Division
Bench judgment of this Court in the case of Sonam Properties v. State
of Maharashtra. The Division Bench in Writ Petition No. 4497 of 1990
vide its judgment dated 8th November, 1990 came to the conclusion
that under sub-section (1) of Section 154 of the MRTP Act, the planning
authority is required to carry out such directions and instructions as
may be issued by the State Government for the efficient administration
of the Act. However, the Division Bench was of the opinion that if any
instruction is given by the State Government which is in violation of the
provisions of the Act, the development permission cannot be refused on
the said ground. In the aforesaid case, development permission was
not granted on the ground that in the adjoining vicinity there is a
chemical industry and it may have deleterious effect. The Division
Bench of this Court held that such insistence was contrary to the
provisions of the MRTP Act and Rules framed thereunder and that the
Planning Authority should not have acted upon some oral instructions
issued by the State Government and allowed the writ petition and
directed the planning authority to process the development permission
as per the observations made in the judgment. It is, however, required
to be noted that, however, a review petition was filed against the said
judgment and the Division Bench of this Court in the case of Bayer
(India) Ltd. v. State of Maharashtra1 reviewed the said judgment and
gave certain directions. In para 93, the Division Bench observed as
under.
“93. In the result, the review petition succeeds and the rule is
made absolute in the following terms : -
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(a) The judgment and order dated 8-11-1990 in Writ Petition No.
4497 of 1990 is set aside and this necessarily implies that the
consequent orders passed in other petitions on the basis of this
judgment are also set aside.
(b) We refrain from directing that the building permissions granted
pursuant to those orders in respect of those of the buildings that
have been completed or that were under constructions as on the
date of the stay order passed by the Supreme Court on 8-1-1991
be revoked. We, however, clarify that no additions or
modifications shall be permitted in respect of any of these
buildings. We also clarify that in respect of those schemes where
permissions may have been granted but no actual construction
has been commenced as on the date of the Supreme Court order
i.e. 8-1-1991 that the prohibition in respect of a total ban on
further construction within the 1 Km. Radius from the chemical
units shall apply.”
24. Against the aforesaid judgment, the matter was taken up before
the Supreme Court and certain directions were given in clause (b). The
Supreme Court while disposing of the said matter in the case of S.P.
Taraporawala v. Bayer India2 gave certain directions as under in
paragraphs 6 and 7 which read as under.
“6. We, therefore, direct the constitution of an authority made
under Section 3(3) of the Act by the Central Government who shall
confer all the necessary powers under the Act on the authority,
which shall be constituted within one month from the receipt of this
order. The authority shall submit its report to the Central
Government within three months after examining and deciding all
the relevant issues including those mentioned by us. This would be
done by affording reasonable opportunity of hearing to the parties
concerned. Follow-up actions shall be taken by all concerned as per
the recommendations of the authority within reasonable time.
7. As the constitution and deliberation of the authority would take
time and its ultimate result cannot be foreseen at this stage, we
have thought it fit to direct the Bombay Municipal Corporation to
proceed further with the plans which had been submitted by the
appellants, some of which also came to be sanctioned. But then, as
sanctioning in some cases was about a decade back and as the
scenario and thinking on the subject has since then changed a lot, so
also the building bye-laws, we have thought it fit to direct the
Corporation to re-examine the question of grant of sanction on the
basis of the existing rules and bye-laws. The Corporation may
proceed with this exercise, but it would await the result of the report
of the aforesaid authority. We have desired the Corporation to
undertake this work at this stage itself because the matter has been
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delayed already and the authority's deliberation would not be

available for quite some time.”
25. It is required to be noted that the judgment given in the review
petition has not been reversed nor the law laid down by the Division
Bench in the said judgment is upset by the Supreme Court. In view of
certain directions the review petition was allowed to be withdrawn. Be
that as it may, in our view, the reliance placed by Mr. Kapadia on the
Division Bench judgment of this Court in the above writ petition cannot
have any binding effect in view of what is stated i.e. Reversal of the
said judgment and ultimate disposal of the petition by the Supreme
Court. In fact, direction has been given by the Supreme Court in that
review petition itself and on the basis of such direction, the review
petition was ultimately dismissed.
26. Mr. Kapadia thereafter relied upon the decision of the Madras
High Court in the matter of Indian National Trust for Art and Cultural
Heritage v. Chennai Metropolitan Development Authority1 . The said
judgment is in connection with Article 300-A of the Constitution of
India. The writ petition was filed before the Madras High Court to
restrain respondent No. 3 from exercising her right over her property.
The Madras High Court has held that in view of Article 300-A of the
Constitution, no person shall be deprived of his property except by
authority of law. The Madras High Court has considered the decision of
the Supreme Court in Jilubhai's case (supra) and rejected the writ
petition which was filed as a public interest litigation. The fact situation
in the present case, as discussed above by us, is entirely different.
27. Mr. Kapadia has relied upon another decision of the Madras High
Court in the case of PPM Thangaiah Nadar Firm v. Govt. of T.N.2 . It has
been held that merely because the right to property has been deleted
from the chapter of fundamental rights and has been recognised as a
constitutional right, it does not disentitle the Court to examine that
question. In the said judgment, reference is also made to Jilubhai's
case (supra). The Madras High Court held that the person cannot be
deprived of his property without authority of law in view of Article 300-
A.
28. Mr. Kapadia has relied upon another decision of the Division
Bench of this Court in the case of Bharti Tele-Ventures Ltd. v. State of
Maharashtra1 . The aforesaid matter was in connection with under
Section 4 of the Telegraph Act, regarding installation of cellular mobile
telecommunication system by the licensee. A demand notice in terms
of notification was held to be without authority of law under Section
154 of the MRTP Act.
29. Mr. Kapadia has relied upon the decision of the Supreme Court
in the case of KT Plantation (P) Ltd. v. State of Karnataka, (2011) 9
SCC 1 delivered in Civil Appeal No. 6520 of 2003 and other cognate
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matters. The Supreme Court has considered the provisions of Article

300-A of the Constitution of India and held as under:
“121. We find no apparent conflict with the words used in Entry
42 List III so as to infer that the payment of compensation is inbuilt
or inherent either in the words “acquisition and requisitioning” under
Entry 42 List III. Right to claim compensation is, therefore, cannot
be read into the legislative Entry 42 List III. Requirement of public
purpose, for deprivation of a person of his property under Article
300A, is a pre-condition, but no compensation or nil compensation or
its illusiveness has to be justified by the state on judicially
justiciable standards. Measures designed to achieve greater social
justice, may call for lesser compensation and such a limitation by
itself will not make legislation invalid or unconstitutional or
confiscatory. In other words, the right to claim compensation or the
obligation to pay, though not expressly included in Article 300A, it
can be inferred in that Article and it is for the State to justify its
stand on justifiable grounds which may depend upon the legislative
policy, object and purpose of the statute and host of other factors.
122. Article 300A would be equally violated if the provisions of
law authorizing deprivation of property have not been complied with.
While enacting Article 300A Parliament has only borrowed Article 31
(1) [the “Rule of law “doctrine] and not Article 31(2) [which had
embodied the doctrine of Eminent Domain]. Article 300A enables the
State to put restrictions on the right to property by law. That law has
to be reasonable. It must comply with other provisions of the
Constitution. The limitation or restriction should not be arbitrary or
excessive or what is beyond what is required in public interest. The
limitation or restriction must not be disproportionate to the situation
or excessive. The legislation providing for deprivation of property
under Article 300A must be “just, fair and reasonable” as understood
in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case,
courts will have to examine the scheme of the impugned Act, its
object, purpose as also the question whether payment of nil
compensation or nominal compensation would make the impugned
law unjust, unfair or unreasonable in terms of other provisions of the
Constitution as indicated above. At this stage, we may clarify that
there is a difference between “no” compensation and “nil”
compensation. A law seeking to acquire private property for public
purpose cannot say that “no compensation shall be paid”. However,
there could be a law awarding “nil” compensation in cases where the
State undertakes to discharge the liabilities charged on the property
under acquisition and onus is on the government to establish validity
of such law. In the latter case, the court in exercise of judicial review
will test such a law keeping in mind the above parameters.
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123. Right to property no more remains an overarching guarantee

in our Constitution, then is it the law, that such a legislation enacted
under the authority of law as provided in Article 300A is immune
from challenge before a Constitutional Court for violation of Articles
14, 21 or the overarching principle of Rule of Law, a basic feature of
our Constitution, especially when such a right is not specifically
incorporated in Article 300A, unlike Article 30(1A) and the 2nd
proviso to Article 31A.
142. Let the message, therefore, be loud and clear, that rule of
law exists in this country even when we interpret a statute, which
has the blessings of Article 300A. Deprivation of property may also
cause serious concern in the area of foreign investment, especially in
the context of International Law and international investment
agreements. Whenever, a foreign investor operates within the
territory of a host country the investor and its properties are subject
to the legislative control of the host country, along with the
international treaties or agreements. Even, if the foreign investor has
no fundamental right, let them know, that the rule of law prevails in
this country.”
30. Mr. Kapadia also relied upon the decision of Privy Council in the
case of Nazir Ahmad v. King Emperor1 . It has been observed in the said
order that when power is given to do a certain thing in a certain way,
the thing must be done in that way or not at all. Other method of
performance are necessarily forbidden. He has relied upon such passing
observations made at pg. 257 of the said judgment. He has also relied
upon another decision of the Supreme Court in the case of State of
Gujarat v. Shantilal Mangaldas2 . It has been observed in para 54 that
the land required for any of the purpose of a town planning scheme
cannot be acquired otherwise than under the Act, for it is a settled rule
of interpretation of statutes that when power is given under a statute to
do a certain thing in a certain way the thing must be done in that way
or not at all.
31. As pointed out earlier, the powers are exercised by the
Corporation as provided under the statute, MRTP Act and D.C.
Regulations. Mr. Kapadia has relied upon the decision of the Supreme
Court in the case of Ramchandra Keshav Adke v. Govind Joti Chavare
(1975) 1 SCC 559 : (1975) 1 SCC 559 : AIR 1975 SC 9151 wherein it
has been held that a a century ago in Taylor v. Taylor [1875] 1 Ch.D.
426 Jessel M.R. Adopted the rule that where a power is given to do a
certain thing in a certain way, the thing must be done in that way or
not at all and that other methods of performance are necessarily
forbidden. Reference is also made to Nazir Ahmad's case in the
aforesaid case.
32. Reference is also made to the decision of the Division Bench of
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this Court in the case of Lok Holding and Construction Ltd. v. Municipal
Corpn. of Greater Mumbai, which is an unreported decision dated 10th
August, 2011. In the aforesaid case, the Division Bench has held that if
notification under Section 3 is not issued, the Corporation should not
have relied upon the NOC from the Defence establishment. So far as
the facts of the said case are concerned, it is required to be noted that
IOD and OC were already issued in favour of the petitioner of that
petition for construction of building and the same were granted by the
Corporation after the petitioner therein produced a letter dated 23rd
January, 2009 signed by the Administrative Officer, Central Ordnance
Depot giving no objection to the sanction of the building plan
submitted by the petitioner. Subsequently it was pointed out that the
said letter was forged letter and the permission which was granted was
withdrawn. The action was challenged before this Court. The Division
Bench in its judgment has noted the fact that earlier a notification in
relation to the defence establishment was actually issued by the
Collector but it was subsequently cancelled. Observing the said aspect,
the Division Bench came to the conclusion that no notification,
therefore, was in existence which was earlier issued. The Division
Bench, therefor, e held that refusal of development permission on the
basis of the instructions given by the State Government to to grant
development permission without NOC from the defence is not just and
proper especially when statutory enactment is occupying the field i.e.
Works of Defence Act, the Government may not have the power to issue
such instructions in respect of the defence establishment wherein there
was no notification as contemplated by the provisions of the said Act.
The Division Bench gave certain directions after taking an overall view
of the matter. In the aforesaid case, no law has been laid down by the
Division Bench in its unreported judgment. In any case, on going
through the aforesaid judgment, we are of the opinion that no law has
been laid down by this Court nor provisions of Section 46 of the MRTP
Act nor D.C. Regulation 16 were under consideration of the Division
Bench. It, therefore, cannot be said that any law has been laid down by
the Division Bench while making certain passing observations in the
judgment. In the instant case, it is required to be noted that under
Section 154 of the MRTP Act, the State Government is authorised to
issue directions to the planning authority. The said provisions have
already been quoted above. On the basis of the same, the State has
issued instructions on 4th November, 2010 which read as under:
“Govt. Of Maharashtra
No. CRZ-2010/2634/C.N. 421/10/(Part-2)/UD-12
Urban Development Dept.
Mantralaya, Mumbai-400 032.
Date : 4th November, 2010
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To
The Commissioner of Mahapalika,
Brihanmumbai Mahanagarpalika,
Mumbai-400 001.
Sub : Regarding development permissions in the area of
Brihanmumbai Mahanagarpalika various Planning Authorities/Special
Planning Authority.
sanction by
Sir,
MMRDA, MIDC, SRA etc. Bodies are working as Planning
Authority/Special Planning Authority other than Brihanmumbai
Mahanagarpalika in the area of Brihanmumbai Mahanagarpalika. To
maintain uniformity in the said planning authority, the following
instructions are passed.
1. The sanctioned plans of CZMP in the area of Brihanmumbai
Mahanagarpalika shall be made available immediately upto
their field of activities to the concerned planning
authority/special planning authority. The said action should be
completed upto date 30/11/2010.
2. The xerox copies of circulars/orders received in view of CRZ
from Urban Development Department, Environment
Department of State Government, also Central & Forest
Environment Department may be made available immediately
to all Planning Authorities/Special Planning Authority working
in the area of Brihanmumabi Mahanagarpalika.
3. Before sanctioning any development permission in the area of
Brihanmumbai Mahanagarpalika, firstly obtain No Objection
certificate from them of Defence, Army, Navy or Security body
lying in that region or nearly region.
It is requested to you as per order given to me to do
implementation of said instructions urgently.
Sd/-
G.M. Wajpe,
Desk Officer.”
33. In our view, such direction can certainly be given under Section
154 of the MRTP Act and the State Government is empowered to give
such direction under the aforesaid provision and, therefore, it cannot be
said that such instruction is administrative instructions or executive fiat
and it is not binding on the planning authority.
34. Mr. Khambata, learned Additional Solicitor General, has relied
upon various decisions to substantiate his say. He has relied upon the
decision of the Supreme Court in the case of S.N. Rao v. State of
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Maharashtra1 . In paragraphs 7 and 8, it has been observed by the

Supreme Court as under:
“7. In allowing the appeal of the respondent No. 5 and directing
924 sanction of the development plan, the respondent No. 2
observed that in view of the clear provisions of sections 46 and 31(6)
of the Act and having regard to the position that in the sanctioned
plan of 1966, the said land was included in the residential zone and
no proposal to exclude it therefrom in the draft revised development
plan had been published, the Municipal Commissioner was not
justified in rejecting the application for approval of the plan
submitted by the respondent No. 5 on the ground that the Bombay
Municipal Corporation had decided to revise the 1966 Development
Plan. We have already referred to section 46 of the Act which
provides that the Planning Authority in considering the application
for permission shall have due regard to the provisions of any draft or
final plan or proposals published by means of notice submitted or
sanctioned under the Act. It seems that the respondent No. 2 was of
the view that the Planning Authority could only take into its
consideration any draft or final plan or proposal which had been
published by means of notice or sanctioned under the Act as
provided in section 46. There is, in our opinion, some force in the
contention made by Mr. Kalsekar, learned Counsel appearing on
behalf of the appellants, that the respondent No. 2 has
misunderstood the provisions of section 46. It is submitted by the
learned Counsel that the Municipal Corporation was entitled to take
into consideration other relevant facts including the contemplated
revision of the plan, apart from those mentioned in section 46. In
support of his contention, the learned Counsel has placed reliance on
an unreported decision of a learned Single Judge of the Bombay High
Court in Life Insurance Corporation of India v. Municipal Corporation
of Greater Bombay, Writ Petition No. 2944 of 1932 disposed of on
6.3.1984. In that case, a development application was rejected by
the Municipal Corporation on the ground that the property was
proposed to be reserved for public purposes or for recreational
ground in the draft revised development plan, and the High Court
repelled the challenge to the decision taking the view that even the
proposed revision could be taken into account as one of the relevant
factors.
8. There can be no doubt that if there be any other material or
relevant fact, section 46 does not stand in the way of such material
or fact being considered by the Municipal Corporation for the grant or
refusal to grant sanction of any development plan. In the unreported
decision of the High Court, the relevant fact that was taken into
consideration was the draft revised development plan, even though
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the plan was not published. In the instant case, however, at the time
the Municipal Commissioner rejected the plan submitted by the
respondent No. 5, there was no draft revised development plan in
existence. It was in contemplation. If there had been such a plan,
the Municipal Commissioner would be entitled to rely upon the same
in rejecting the plan submitted by the respondent No. 5. But, as
there was no such draft revised plan as has been stated before this
Court even by the Counsel for the Municipal Corporation, the
Municipal Commissioner was not justified in merely relying upon a
proposal for the preparation of a draft revised plan. An order
rejecting a development plan submitted by the owner of the land
should be supported by some concrete material. In the absence of
any such material, it will be improper to reject the plan on the
ground that there is a proposal for revision of the draft plan or that
such a revision is under contemplation. We are, therefore, of the
view that the ground for rejecting the plan submitted by the
respondent No. 5 was not tenable and the appellate authority was
justified in allowing the appeal.”
35. Mr. Khambata has also strongly relied upon the decision in the
case of Bayer India Ltd. (supra) which we have referred to above. He
submitted that in view of the same, the planning authority was justified
in calling for certain more information. He has also relied upon the
decision of the Supreme Court in the case of F.B. Taraporawala v. Bayer
India Ltd. (supra) and submits that since the review judgment has not
been disturbed, the same is binding on this Court.
36. Mr. Khambata also relied upon the decision of the Division Bench
of this Court in the case of Akbar Travel of India (P) Ltd. v. Union of
India delivered in Writ Petition (L) No. 656 of 2009. In paragraph 31,
the Division Bench has observed thus:
“31. We cannot transgress the limits of writ jurisdiction by sitting
in judgment over the actions of Intelligence Agencies. These
agencies are manned by experts, who are in the best position to
judge the security interests. Ultimately, sensitive and vital
installations have to be safeguarded and protected from entry of
persons who are considered to be undesirable and a security risk.
Precisely, such are the inputs in the reports which have been
received and if the Bureau has acted upon the same, then, we
cannot sit in judgment over their decision. The writ Court does not
possess any expertise in such cases. The Court cannot indulge in
guess work and hold that the inputs do not endanger the security of
the Airport nor public interest demand that the ground handling
operations of the petitioner be prohibited. These are matters which
are better left to the authorities in charge of security of the vital
installations as they are in charge of laying down standards and
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norms for protecting and safeguarding them. They act in public

interest and when no mala fides are alleged, their actions ought not
be interfered.”
37. Relying on the same, it is submitted by Mr. Khambata that once
the competent authority i.e. Navy has found that the apprehension of
security, this Court cannot sit in appeal over the judgment of the said
authority.
38. Mr. Khambata also relied upon a decision of the Delhi High Court
in the case of Federation of Indian Airlines v. Union of India delivered in
W.P (C) No. 8004 of 2010 on 4th March, 2011. In paragraph 93, the
Division Bench has observed thus:
“93. The contention of the learned counsel for the petitioners is
that the security facet has been introduced as a subterfuge to curtail
the commercial interests of the petitioners and gradually destroy
their existence. Per contra, the submission of the learned Solicitor
General is that strong steps have been taken to regulate, protect and
oversee the security measures regard being had to the global
phenomena and the security lapses that have taken place at the
airports. The factum of security cannot be gone into by court of law
and more so when specific aspects have been dwelled upon and
delved into by the Bureau of Civil Aviation Security. The security of a
country is paramount. It is in the interest of the nation. There is no
question of any kind of competition between the commercial interest
and the security spectrum. The plea that in the name of security the
commercial interest of the petitioners is infringed or abridged does
not merit consideration and in any case this Court cannot sit in
appeal over the same. The individual interests of the petitioners
must yield to the larger public interest. Judged by these parameters
and the authorities which we have referred to hereinabove that lay
down the test under Article 14 and the role of court while dealing
with policy decisions of the State, we do not remotely perceive the
same to be arbitrary or unreasonable. It cannot be said that it is not
based on well defined grounds. The very purpose of perceptible and
does not suffer from the vice of unreasonableness. Therefore, we
hold that the circular, as a policy decision, is not arbitrary and
unreasonable to invite the frown of the said limb of Article 14 of the
Constitution.”
I
39. Mr. Khambata also relied upon the decision of a Division Bench
of this Court in Writ Petition (L) No. 1105 of 2011 (Narangs
International Hotels (P) Ltd. v. Union of India), decided on 17th June,
2011 wherein this Court has observed in para 11 thus:
“11. Having considered the rival contentions, we are of the
opinion that this is a case where this Court cannot interfere with the
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impugned order which rejects the security clearance on the basis of

the report of the Intelligence Bureau. We have perused the report of
the Intelligence Bureau. We have no reason to disbelieve it. We
cannot sit in appeal over the said report. This case involves the
security of India and more particularly the security of the Airports.
Intelligence Bureau is an expert body. The petitioners have not
alleged any mala fides. It is impossible to say that any extraneous
reasons have persuaded the Intelligence Bureau to submit the report
or that Respondent 1's action is mala fide.”
40. Considering the case law cited by both the sides, we are of the
opinion that whether the security point raised by Navy is merely a
bogey or is a matter of substance is not a question which we can decide
in a petition under Article 226 of the Constitution of India and this
aspect should be squarely left to the defence authority. It is not for this
court to pronounce the aforesaid aspect as it is completely in the realm
of the defence department. It is also not for this Court to pronounce
upon the decision of the Navy that the point of defence raised by them
is justified or not. During the course of hearing Mr. Khambata has
pointed out that in the recent past Mumbai was attacked by terrorists
on 26th November, 2008 and from the said experience, there is nothing
wrong if the Department has become wiser by taking most stringent
security measures. It is submitted by Mr. Khambata that even if in the
past in the nearby area high rise buildings were permitted to come,
that cannot be taken into consideration as a basis for refusing
permission to the petitioner's development especially when petitioner's
property is just touching and adjoining the property of Navy wherein
important armaments and missiles are kept there. Even VVIPs
helicopters are landing at the said place. This Court cannot ignore all
these facts and cannot come to the conclusion that the theory of
security is nothing but an afterthought and that it should be ignored. If
element of security is involved and if there is a clash between
commercial interest and national interest, it is always the national
interest which should prevail and simply because the petitioner may
not be allowed to develop its property in a particular way, this Court
cannot strike down the decision of the planning authority by which they
have refused to grant permission to the petitioner. The instructions
given by the State Government cannot be ignored by the planning
authority, which we have incorporated above. The paramount interest is
the security of the country and the same cannot be ignored by anyone
including the planning authority, State Government or by any other
authority. Considering the submissions made by the counsel appearing
for the parties and considering the material on record, we are of the
view that the security aspect which is pressed into service by Navy
cannot be said to be a mere bogey or imaginary one, as appropriate
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material has been placed on record to buttress the stand of the Navy.
As pointed out earlier, there are various provisions in various
enactments which require that in a particular area certain high rise
buildings or developmental activities are not permitted, especially in
the vicinity of refinery or chemical industries which may affect health
hazards to the persons staying nearby. In the instant case simply
because construction activity is not permitted, it cannot be said that
such action is violative of Article 300-A of the Constitution of India.
Even at the cost of repetition, we may say that under D.C. Regulation
16, no development activity is permissible in certain eventuality which
includes public interest also. The said Regulation is not challenged
before us. Therefore, in our view, the Corporation has acted within its
authority and in view of that it cannot be said that the petitioner is
deprived of its property without any authority of law. Even the Supreme
Court, as pointed out earlier, in the case of S.N. Rao (supra) has clearly
held that there could be no doubt that if there be any other material or
relevant fact, Section 46 of the MRTP Act does not stand in the way of
such material or fact being considered by the Municipal Corporation for
the grant or refusal to grant sanction of any development plan. In view
of the same, the reliance placed on the Division Bench judgment of this
Court in the case of Lok Holding (supra) has no application to the facts
of the present case.
41. Considering all these aspects, we do not find any illegality in the
action of the Corporation in refusing development permission to the
petitioner in a sensitive area which is just located adjoining to INS
Shikra and which, according to the Corporation, cannot be allowed to be
developed without the permission of the Navy. When Navy has refused
No Objection on the ground of security aspect, this Court may not
interfere with such decision.
42. In view of what is stated above, we do not find any substance in
this petition. It is accordingly dismissed. Rule is discharged. No other
arguments are canvassed before us except the one which we have dealt
with. The interim orders/directions issued from time to time stand
vacated.
———
1 Decided on 10th August, 2011 in WP No. 840 of 2011

2 AIR 1936 PC 253 (2)

1 1995 Supp (1) SCC 596

1
(1994) 4 Bom CR 309

2 (1997) 2 Bom CR 159

1 (2003) 4 CTC 513

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2 (2007) 2 Mad LJ 685

1 (2007) 4 Mah LJ 105

1 AIR 1936 PC 253 (2)

2 (1969) 1 SCC 509 : (1969) 1 SCC 509 : AIR 1969 SC 634

1 (1975) 1 SCC 660 : AIR 1975 SC 919

1 (1988) 1 SCC 586 : (1988) 1 SCC 586 : AIR 1988 SC 712

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