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2022 SCC OnLine Bom 6700 : (2023) 2 Bom CR 903

In the High Court of Bombay

(BEFORE R.D. DHANUKA AND KAMAL KHATA, JJ.)

Vikram Delite Co-op. Hsg. Soc. Ltd., a Co-operative

Housing Society, through its Treasurer Vithal D.
Patel and Others … Petitioners;
Versus
Union of India, through its Secretary to the Ministry
of Defence and Others … Respondents.
Writ Petition No. 3543 of 2018
Decided on December 9, 2022, [Reserved On : 3rd October, 2022]
Advocates who appeared in this case :
Mr. Girish Godbole a/w. Mr. Prantik Majumdar i/b. Mr. Mark Dmello
and Shaun Pinto, for the Petitioners.
Mr. Anil Singh, Additional Solicitor General and Mr. Aditya Thakar,
Mr. D.P. Singh alongwith Ms. Carina Xavier and Ms. Smita Thakur, for
Respondent Nos. 1, 5 and 6.
Mr. Himanshu Takke, AGP, with Mr. S.B. Gore, AGP for Respondent
No. 2 State.
Mr. A.Y. Sakhare, Sr. Advocate a/w. Ms. Madhuri More and Ms. Oorja
Dhond i/b. Mr. Sunil K. Sonawane, for Respondent Nos. 3, 4 and 7-
MCGM.
The Judgment of the Court was delivered by
R.D. DHANUKA, J.:— By this Petition filed under Article 226 of the
Constitution of India, the Petitioners seek a Writ of Certiorari for
quashing and setting aside the impugned letter dated 17/11/2016 and
30/11/2016 issued by the Flag Officer Commanding in Chief, Western
Naval Command (Respondent no. 6 herein). The Petitioners also seek a
Writ of Mandamus against the Respondent No. 6 herein to forthwith
withdraw and/or cancel the impugned letters and seek direction against
the Respondent Nos. 3, 4 and 7 to forthwith withdraw and/or cancel the
impugned Condition No. 8 from the amended Development/Building
Permission dated 23rd November, 2017.
2. The Petitioners also seek a Writ of Mandamus against the
respondent No. 3 through the Respondent No. 4 to issue further
building permissions including the full Commencement Certificate in
respect of the Writ Plot without insisting for a NOC from the Naval
authorities in terms of the IOD dated 4th January, 2016.
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3. In alternative to prayer clauses (a) to (g), the petitioners also

seek a Writ of Certiorari for quashing or setting aside the impugned
st
communication dated 21 January, 2022 issued by the Rear Admiral
Sanjeev Sharma and seek a Writ of Mandamus to forthwith process and
issue a formal NOC in respect of the Writ Plot to respondent No. 3.
4. Some of the relevant facts for the purpose of deciding this Writ
Petition are as under:
(a) On 18th May, 2011, the Ministry of Defence of Union of India
issued non statutory executive instructions regarding the
guidelines for the issuance of a NOC for the construction of the
buildings on lands adjacent to Defence Establishments. It is the
case of the Petitioners that those guidelines do not have a force of
statutes since it recorded that it was necessary to amend the
Works of Defence Act, 1903 and pending such amendment it was
necessary to issue instructions in the interim with an objective to
strike a balance between the security concerns of the forces and
the rights of public to undertake the construction activities on
their lands.
th
(b) On 25 April, 2014, Petitioner No. 1 Society decided to proceed
with the redevelopment of its old buildings which were in a
dilapidated condition, and appointed the Petitioner No. 2 as the
Developer. On 25th April, 2014, the Letter of Intent was issued in
favour of the Developer. The members of the Petitioner No. 1
Society vacated their respective flats between July to September,
2014 and were being paid compensation for the temporary
alternate accommodation by Petitioner
(c) On 18th March, 2015, the Ministry of Defence Union of India
th
modified the earlier Circular dated 18 May, 2011. It was directed
th
that the guidelines dated 18 May, 2011 will not apply for the
th
buildings where permissions were granted prior to 18 May,
2011.
th
(d) On 6 October, 2015, the Airport Authority of India granted a
height NOC of 32.66 meters with a top elevation of 49.41 meters
in respect of the said project.
(e) On 17th November, 2015 the Ministry of Defence, Union of India
th
issued a Circular amending the guidelines dated 18 May, 2011
and added a proviso under para 1-B of the Circular dated 18th
May, 2011.
(f) It is the case of the petitioners that on 21st November, 2015 the
Municipal Corporation prepared a detailed scrutiny report of the
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proposed redevelopment, since the proposed construction was

more than 375 meters away from the Naval Establishment and
since there were several buildings having height of more than four
floors and there was no reference about the NOC from the Navy,
since the said NOC was not required.
(g) On 4th January, 2016, the Municipal Corporation issued an IOD
under section 346 of the Mumbai Municipal Corporation Act, 1888
(MMC Act) approving the construction of the building having four
Wings with basement, stilt and nine upper floors and a top
elevation of No. 2. 32.55 meters. It is the case of the Petitioners
that the said IOD was granted considering the height permitted
by the Airport Authority of India.
th
(h) On 4 April, 2016, the then Defence Minster of Union of India
addressed a letter to the then Chief Minister of State of
Maharashtra stating that the height of the structure may be as per
the applicable municipal laws.
st
(i) On 21 October, 2016, the Ministry of Defence of Union of India
issued a Circular amending the earlier Circular dated 18th May,
th th
2011 and Circulars dated 18 March, 2015 and 17 November,
2015. The said circular was addressed to the Chief of Naval Staff.
(j) It is the case of the Petitioners that Part-A of the Annexure to the
Circular enlists 193 Defence Establishments where the security
restrictions were reduced only upto 10 meters. In respect of 149
stations listed in Part-B of the Annexure, the distance was
reduced to 100 meters. It is the case of the Petitioners that
almost all establishments in Part-B are in the border areas
abutting Pakistan and China where the threat perception is very
high comparatively.
(k) On 7th November, 2016, the Urban Development Department
(UDD) of State of Maharashtra issued a Circular regarding the
procedure to be followed for a NOC of the Defence Department
st
based on the letter dated 21 October, 2016.
th
(l) On 17 November, 2016 the Navy issued a FAX Message
contending that the directives of the Ministry of Defence of
Government of India were applicable only to the Army
th
Establishments and not to the Naval Establishments. On 30
November, 2016, the Western Naval Command of Navy addressed
a letter to the Principal Secretary, Urban Development
Department, Government of Maharashtra stating that the Circular
dated 21st October, 2016 of the Ministry of Defence of
Government of India was not applicable to the Naval
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Establishments but applicable only to the Army Establishments.

(m) On 10th December, 2016, the Municipal Corporation issued a
notice under section 354 of the MMC Act, 1888 for the demolition
of the building since it was dilapidated. The Technical Advisory
Committee of the Municipal Corporation confirmed the category of
st
building of the Petitioners as C-1 category on 21 June, 2017.
th
(n) On 15 August, 2017, the Petitioner No. 1 executed a
Development Agreement in favour of the Petitioner No. 2.
Petitioner No. 2 developer purchased full TDR of approx. 2053 sq.
mt. by spending Rs. 5,54,82,103/-. In pursuance to the directions
issued by the Municipal Corporation, one building was vacated by
the Petitioners. On 17th October, 2017 Municipal Corporation
issued a Commencement Certificate upto plinth level. According
to the Petitioners, no condition for obtaining a NOC from the Navy
was incorporated. The Petitioners thus had no occasion to assume
that such a NOC would be required.
th
(o) On 20 November, 2017 the Executive Engineer(Building
Proposal) addressed a letter to the Navy and requested for the
grant of a NOC. On 23rd November, 2017, the Municipal
Corporation imposed a condition No. 8 demanding the submission
of a NOC of the Naval Department before applying for a full
Commencement Certificate in response to the application of the
Petitioners for the sanctioning of the amended plans.
(p) On 22nd December, 2017, the Executive Engineer (Building
Proposal) submitted a note to the Municipal Commissioner. It was
mentioned that within 500 meters of the Ghatkopar Naval base,
there were 19 projects in N Ward and 23 projects in L Ward for
which occupation certificate was granted and 148 projects in N
Ward and 32 projects in L Ward where the projects were under
construction. It was recorded that there was no notification under
the Works of Defence Act, 1903. The directions were sought in
th
view of the stand of the Navy that circular applied dated 20
October, 2016 applies only to Army establishment. The Municipal
Commissioner passed an order to call a joint meeting and in the
meantime directed not to process the proposal till the NOC of
Navy is received.
nd
(q) On 2 January, 2018, the Navy passed the first impugned order
and rejected the request for grant of NOC on the sole ground that
it was sought after work has commenced on ground upto
basement top slab level. The Navy requested that NOCs be sought
prior to issue of commencement certificate in the future. On 23rd
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May, 2018, the Executive Engineer, Building Proposal again

submitted a proposal to the Municipal Commissioner indicating
that according to the various circulars, it was for the
Municipal/State Authority to take a final decision and
recommended grant of amended plans, commencement certificate
and further commencement certificate.
(r) The Municipal Commissioner passed an order on the said proposal
th
on 30 August, 2018 asking the Executive Engineer to send a
detailed letter to Navy on that issue. It was also directed to
inform the Navy that the Corporation would wait for one month for
a response, failing which the Corporation would process the
proposal as per the Rules and as per approved plans.
(s) It is the case of the petitioners that the petitioner no. 2 has paid
the monetary compensation to the members of the petitioner no.
th
1 as per the chart at page 430. On 19 June, 2018, the Architect
of the petitioners made a representation showing requisite
drawings and photographs, showing existence of buildings
between project of the petitioners and Navy boundary wall
justifying that Naval NOC was not required. The said
representation of the architect was forwarded by the Municipal
Corporation to the Navy on 22nd June, 2018 contending that there
existed four multi storied buildings directly located between the
projects of the petitioners and Naval Depot boundary.
(t) On 4th September, 2018, the Navy passed another impugned
order refusing to grant NOC without assigning any reasons for
rd
such refusal. On 3 October, 2018, the petitioner no. 1 submitted
a representation to the Corporation requesting for deletion of
impugned condition no. 8 contending that there was no security
hazard and also to consider the plight of 66 members of society
who were out of their homes.
(u) During the pendency of this petition, the petitioners filed
additional affidavit on 10th January, 2019 to place on record the
documents indicating grant of NOC by Navy to several other
projects after commencement of construction. He submitted that
some of the NOCs were signed by Mr. Pradeep Joshi, Rear Admiral
who had himself signed the impugned orders refusing to grant
NOC to the petitioners on the ground that construction had
started prior to the grant of NOC and there was no provision in the
guidelines to do so. It is the case of the petitioners that even
according to the Municipal Corporation, the project of the
petitioners is about 421 meters from the outer boundary wall of
the Naval establishments.
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(v) On 8th December, 2019, Navy filed further affidavit of Rear

Admiral Mr. S.S. Suriaraj pointing out that NOC for CTS No. 244-
247 was not of New Taj Building but was for the adjoining land.
The counsel for the petitioners agreed to submit the revised
proposal providing for RCC Vertical Louver Vision Type Cutters,
there will be no terraces, a slopping roof without any access to the
roof will be provided. This Court directed submission of such plan
and its consideration by the Corporation.
(w) On 6th December, 2021, the Architect of the petitioners
th th
submitted revised proposal. On 27 December, 2021 and 4
January, 2022, the Corporation approved the proposal after
verifying that the revised plans are of approvable nature. The
Municipal Corporation also approved the same. On 21st January,
2022, the Navy once again declined to grant NOC and contended
that the Naval Depot would be visible from the terrace of the
proposed building.
(x) The said letter of Navy was forwarded by the Assistant Engineer,
th
Building Proposal, Municipal Corporation vide letter dated 4
February, 2022. The petitioners accordingly applied for the
amendment in the writ petition so as to impugn the decision of
Navy dated 21st January, 2022 by adding prayers H1 and H2. On
th
25 February, 2022, Navy filed additional affidavit in reply to the
amended petition contending that even the alternate proposal was
not acceptable for four unsustainable reasons.
5. Mr. Godbole, learned counsel for the petitioners invited our
attention to various documents annexed to the writ petition and the
pleadings filed by the respondents. He tendered synopsis and written
submissions for consideration of this Court along with compilation of
judgments. It is submitted that the modified guidelines issued by the
st
Ministry of Defence, Government of India dated 21 October, 2016 are
applicable to all Defence Establishments since they are issued to the
Chiefs of Army, Air and Naval Staff.
6. It is submitted that Part A of the Annexure thereby covers various
establishments in Mumbai at item nos. 19 and 20. He submitted that
Part B of the Annexure in fact covered 149 establishments, all of which
are in sensitive border areas on the Pakistan and China Borders. He
submitted that the said circular has been accepted by the Government
th
of Maharashtra by circular dated 7 November, 2016. He submitted
that the stand taken by the respondents that the amended guidelines
dated 21st October, 2016 are applicable only for Army units, is
unsustainable and is in fact absurd.
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th
7. It is submitted that the guidelines dated 18 May, 2011 as
th
modified on 17 November, 2015 clearly stated that if the proposed
construction is in line (shadow) or behind (shield) of the existing four
storied or more building within 500 meters, it is the prerogative of the
Municipal/State Authority to approve the proposal for construction. He
submitted that in this case, the modified proposal of the petitioners
providing for (i) RCC Vision Cutting Louvers, (ii) No lift machine room
and water tanks on the top floor, (iii) provision of slopping roof which is
inaccessible by any stairs and (iv) no terrace, has been approved by the
Corporation. The said guidelines further stated that in terms of the
th
revised guidelines dated 17 November, 2015, the decision of the
Corporation is final and binding on Navy.
th
8. It is submitted that the letter dated 4 April, 2016 of the then
Defence Minister makes it clear that the terms “in line with or behind”
are “by the shadow or shield” are meant to indicate construction
proposed which is in line with or any shadow or shield of existing
structures within 500 meters. The entire defence of Navy based on an
unknown concept of existence of partial shadow and shield and absence
of complete shadow and shield based on horizontal width from the
proposed construction is not supported by the guidelines.
9. It is submitted that the guidelines have no force of statute and in
th
fact as indicated in the first guidelines dated 18 May, 2011, there was
a stop gap arrangement pending the proposed amendment to the
Works of Defence Act, 1903. The decision making process is flawed and
smacks arbitrariness. It is submitted that the only reason for refusing
to grant NOC on the application made by the petitioners that the
construction work had started before applying for NOC is absurd. In
atleast four cases, the NOC had been granted post commencement
certificate and after commencement of construction work.
10. It is submitted by the learned counsel that the plea raised by
the Navy in the affidavit in reply alleging threat perception is totally
untenable and contrary to the position of record. He submitted that in
case of (i) New Taj Apartment with ground + 7 floors and having full
line of sight of Naval Depot, is at distance of 60 meters with only LBS
Road in between. (ii) a building with height of approximately 40 meters
where SRA is the Planning Authority, is abutting the boundary of the
Depot and has full line of sight of the Naval Depot even from the 2nd
floor and (iii) that there are 22 NOCs that have been issued by the
Naval Authorities for projects in Mumbai out which 4 NOCs have been
issued to projects in Ghatkopar area. Each of the 4 projects in
Ghatkopar have direct line of sight to the Naval Depot at Ghatkopar. He
relied upon the photographs annexed at pages 660 to 663 of the
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affidavit in rejoinder filed by the petitioners.

11. It is submitted by the learned counsel that Naval Depot is
surrounded on all 4 sides by high rise buildings higher than the
petitioners buildings such as (i) Neelkant Dhara, (ii) Parvati Heritage,
(iii) Aaradhya Residency, (iv) Exocita & Premier by HDIL, (v) Slum
Building across the street from the Naval Depot, amongst many others.
He also relied upon the google map at page 802 of the affidavit in
rejoinder along with photographs.
12. It is submitted by the learned counsel that the impugned action
does not satisfy the Wednesbury principle of reasonableness. He
submitted that when a defence of partial shield/shadow unknown to the
guidelines was raised by the respondents, the petitioners submitted a
proposal which takes care of all apprehensions including deletion of
terrace. The said apprehension was however rejected by raising a
contention that from the terrace, there will be line of sight.
13. It is submitted that when vision cutters of Aluminum Composite
Panels were proposed by the petitioner, it was opposed by the
respondents on the ground that it may corrode. The permanent RCC
Louvers Vision Cutters were proposed by the petitioners which were
even approved by the Corporation. However, the Municipal Corporation
rejected the said proposal on the same ground that the RCC Vision
Cutters can also be removed.
14. It is submitted by the learned counsel that it is also the case of
the Municipal Corporation that the Naval establishment at Worli is
visible from some part of the building but NOC has been granted. The
land of the petitioner society is a privately owned land and not a
defence land. 66 members of the petitioner society are on the street
from the year 2014, when all but 4 members had vacated. The
developers had spent more than Rs. 12.58 crores on payment of transit
accommodation (Rent) excluding corpus. He submitted that about
44.14 crores have been already spent by the petitioners as of March
2022. He submitted that there is no public interest and/or the security
concerns likely to be compromised even remotely.
15. Learned counsel for the petitioners invited our attention to the
text of the speech of the learned Minister annexed to the affidavit in
rejoinder and more particularly in paragraph (13). He submitted that
even according to the said speech, any building if existed upto 500
sq.mtrs., there was no problem in granting permission.
16. Learned counsel for the petitioners tendered a compilation of
judgments and the documents. He relied upon the following
judgments:—
(i) The judgment of Division Bench of this Court in case of Tirandaz
Subha Niketan Co-operative Housing Society Ltd. v. Union of
India, (2019) 2 AIR Bom R 748 (paragraphs 2, 40 and 41);
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(ii) The judgment of Division Bench of this Court in case of Runwal

Constructions v. Union of India, (2021) 4 Bom CR 57 (paragraphs
5, 11, 37, 109 and 121);
(iii) The judgment of Rajasthan High Court in case of Union of India
v. S.R. Land Square Private Limited, 2018 SCC OnLine Raj 199
(paragraphs 8, 44 and 61);
(iv) The judgment of Delhi High Court in case of UOI v. GNCT of
Delhi in Writ Petition (C) No. 6901 of 2017 and connected matter
dated 11th January, 2019 (paragraphs 16 and 18);
(v) The judgment of Kerala High Court in case of M.P. Hassan Kuhi v.
Union of India in Writ Petition (C) No. 9798 of 2013 (paragraphs 2
and 3);
(vi) The judgment of Kerala High Court in case of Fathimathul
Raseena D/o. Ummer v. Kannur Municipality, Kannur, in WP(C)
No. 14883 of 2013 (paragraphs 2 to 5).
(vii) The judgment of Division Bench of this Court in case of Sea
Kunal Corporation Pvt. Ltd. v. Municipal Corporation, (2019) 2 AIR
Bom R 766
(paragraphs 7, 9 and 29).
17. It is lastly submitted by the learned counsel for the petitioners
that the petitioners are ready and willing to allay all the fears of Navy at
its own cost.
18. Mr. Anil Singh, learned Additional Solicitor General for the
respondent nos. 1, 5 and 6 on the other hand made following
submissions:—
(a) The Material Organization, Mumbai situated at Ghatkopar is a
sensitive and vital unit of the Indian Navy. The proposed
construction is at a distance of 421 mtrs. as per the petitioner and
375 mtrs. from the north east side as per the Navy from the
boundary of the Material Organization. The proposed construction
is of four wings A, B, C, D having the configuration as Basement +
stilt + ground + 1st to 9th upper floors. The proposal to redevelop
and issuance of Letter of Intent in favour of the petitioners are
only in 2014 i.e. much after MRTP, DCR and the guidelines were
already in force. The respondent nos. 5 and 6 were never
approached for a NOC prior to grant of the limited permissions
obtained by the petitioners. According to the petitioners, these
facts are not disputed by the petitioners.
(b) It is submitted that the right to develop is not an unconditional
right but is a right subject to and depending upon the satisfaction
of the terms and conditions contained in the letters of sanction,
approval in that behalf so also the planning laws. The MRTP and
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DCR both required and obliged the consideration of the safety and
security elements whilst considering the grant of development
permissions.
(c) It is submitted that the guidelines dated 18th May, 2011 provides
for the requirement for issuance of NOC for building constructions.
The NOC of Defence Establishments is not only necessary but is in
fact a mandatory duty of the Planning Authority to insist for NOC
of Defence Establishment while considering proposal for building
permissions.
(d) It is submitted that a Division Bench of this Court has considered
and noted the importance and sensitive nature of the very same
establishment i.e. the Material Organization, Ghatkopar in case of
Sunbeam Enterprises v. Municipal Corporation of Greater Mumbai,
2019 SCC OnLine Bom 1059. The said Material Organization,
Ghatkopar would also qualify as a Naval establishment within the
meaning of Naval establishment setout in section 3(12A) of the
Navy Act, 1957.
(e) It is submitted that before granting any NOC by the Local Military
Authority, a detailed exercise is undertaken in each case based on
its independent factors. Each construction or each proposal for
NOC is viewed independently and separately. The individual
factors are duly considered before granting or refusing a NOC.
Local Military Authority conducts a physical investigation which
involves not merely an inspection of the proposed site of
construction but an investigation/inspection of the entire
neighbourhood.
(f) It is submitted that the detailed assessment/analysis/report are
prepared by the Local Military Authority which reports are then
placed for further consideration before the Headquarters Western
Naval Command, which not only deliberates upon the same but if
it deems fit/necessary may even conduct a physical inspection
itself to ascertain the factual position. It is only after this detailed
analysis that the respondent evaluates the interest of national
security vis-a-vis the defence establishment with respect to grant
of NOC.
(g) It is submitted by the learned Additional Solicitor General that
the guidelines dated 17th November, 2015 issued by the Ministry
of Defence for issue of No Objection Certificate for building
construction near defence establishments was further clarified and
confirmed by the erstwhile Defence Minister of India vide his
th
letter dated 4 April, 2016 to the Chief Minister of Maharashtra.
(h) It is submitted by the learned Additional Solicitor General that
merely because one building which is for example of a height of
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10 floor has been granted NOC, another building of 10 floors

would automatically be entitled to an NOC would not be correct.
He submitted that similarly it would not be appropriate to state
that merely because 4 proposed constructions had been granted
NOC's, even the petitioners are entitled to such an NOC. Each
NOC and each proposed construction is separate and independent.
Various critical factors may differ between two constructions
which may otherwise appear similar. All factors are taken into
consideration before addressing the issue of grant or rejection of
NOC.
(i) It is submitted that insofar as the plot of the petitioners is
concerned, the said plot is admeasuring 3590.20 sq.mtrs. and is
curved plot. The construction of the petitioners is coming up at a
distance of 375 mtrs. from the North-East side of Material
Organization, Mumbai.
(j) It is submitted that there is no dispute that the NOC has been
granted to the construction proposed on CTS No. 244 to 247 on or
about 25th May, 2016. However, since then several acts breaching
the security and safety measures are now considered necessary in
wake of such incidents both within India and internationally, NOC
was not granted in favour of the petitioners. It is submitted that
the grant of NOC in the new scenario of heightened security is
required to be considered on the present day, considering no
construction has till date commenced on the said plot. The
respondent no. 6 is in process of revoking the grant of NOC to the
construction proposed on CTS Nos. 244 to 247.
(k) It is submitted that the petitioners though was obliged to apply
for NOC from the Local Military Authority before commencing the
constructions did not obtain such NOC and commenced the
construction.
(l) It is submitted that upon detailed analysis of the site visit, it is
found that the petitioners' construction will have a direct line of
sight to core Depot at Material Organization Mumbai. He
submitted that even though the petitioners construction partially
falls in shadow/shield of four buildings viz. Mukund Society,
Neelkanth Dhara, Police Staff Buildings and New Taj Apartment, it
is not entirely in the shadow/shield of any building. The proposed
construction is partially in the shadow/shield not on the basis of
height but on the basis of width. He submitted that the portion of
the proposed construction was not in the shadow or shield of any
building.
(m) It is submitted that even the proposed height is reduced from
32.55 mtrs. to 28.65 mtrs. claimed to be at par with New Taj
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Apartment, it would not be correct for the petitioners to canvas

that the structure of the petitioners would be in the shadow or
shield of said New Taj Apartment.
(n) It is submitted that during the visit, the representative of the
petitioner no. 2 present at the site mentioned that the old
building was comprising of 4 wings i.e. Wing ‘A’ comprised of
ground +3 floors configuration, Wing ‘B’ comprised of ground + 4
floors configuration, Wing ‘C’ comprised of ground + 2 floors +
part terrace and Wing ‘D’ comprised of stilt + 4 floors
configuration had been demolished. The petitioner no. 2 had
proposed to construct a single building of four wings in the
proposed configuration of basement + stilt + 1 to 9 upper floors
configuration.
(o) It is submitted that the defence authorities are experts to
determine the threat perception to the security and safety of the
nation. This Court cannot interfere with the refusal of the NOC by
the respondent no. 2 in favour of the petitioners. It is submitted
by the learned Additional Solicitor General that the petitioners
have deliberately obfuscated and manipulated certain documents
attached to the writ petition and sought to contend that the same
was an NOC granted to an adjoining plot of land and thereby
urged that the Navy was being arbitrary. On this ground itself, the
petitioners are not entitled to invoke discretionary power of this
Court.
(p) It is submitted that when the petitioners were issued Letter of
Intent in the year 2014 or thereafter with the provisions of MRTP,
DC Regulations were in force and were applicable. The petitioners
have commenced work with a view to try and urge as if a fait
accompli has taken place. The petitioners cannot be allowed to
take advantage of its own wrong.
(q) It is submitted that since the Indian Navy is expert in the field of
safety and security, it would be within the sole domain of the
Navy/Defence to determine the threat perceptions and the safety
and security aspects. The question as to whether the proposed
construction is within the shadow and/or shield of an existing
building would be within the domain of the Navy. The petitioners
have not alleged or pleaded or in any event demonstrated any
malafide against the respondents.
(r) It is submitted that the new proposal submitted by the
petitioners was also considered afresh and after detailed analysis,
it was found that the same still persisted safety and security
threat and accordingly NOC could not be granted.
(s) It is submitted that under the provisions of Works of Defence
Act, there is a provision of payment of compensation and
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acquisition. The security threats prevail on one day, may be

different on another day. The petitioners thus cannot allege any
discrimination or bias on the part of the respondents while
rejecting the NOC in favour of the petitioners. The defence has not
objected to all construction as would be ended from the record.
However the Navy cannot compromise on the safety and security
of the nation. There is no negative equality provided in Article 14.
It is for the petitioners to show as to how this construction is
permissible despite the security threats.
(t) Insofar as submission of the learned counsel for the petitioners
that the new proposal submitted by the petitioners has been
approved by the Municipal Corporation and thus the decision of
the Municipal Corporation would be binding on the Navy is
concerned, he submitted that even the said order passed by the
Municipal Corporation is without prejudice to the rights and
contentions of the parties. It is the duty of the planning authority
to obtain the NOC of the Defence for the construction within the
vicinity of the Defence establishment. The proposed construction
is admittedly within the vicinity of the Defence establishment.
(u) Learned Additional Solicitor General submitted a sealed envelop
for consideration of this Court on the security aspect. Mr. Godbole,
learned counsel for the petitioners made a statement that if this
Court is of the opinion that the information made available in the
sealed envelope is required to be considered, the Court has ample
power to consider such material.
(v) It is submitted by the learned Additional Solicitor General that
the restriction imposed for carrying out construction in the
building of the petitioners is based on some intelligence
report/record. The public interest has to be given importance as
against the private interest. The alterations suggested by the
petitioners cannot be considered. There has to be uniformity. The
respondents have to conduct measures while considering keeping
in mind the precautionary measures that have been to be taken
while considering the proposal for carrying out construction.
(w) It is submitted that though there may be some hardship to the
petitioners in view of the rejection of the NOC by the respondent
no. 2, the petitioners can construct the building outside the
shadow and/or shields and within permissible heights. The
petitioners did not challenge the validity of the circular
immediately. It is not the case of the petitioners that the circular
dated 18th May, 2011 does not apply.
(x) Learned Additional Solicitor General relied upon the following
judgments in support of the aforesaid submissions:—
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(i) The judgment of this Court in case of The Union of India v.

State of Maharashtra, (2016) 4 Bom CR 549;
(ii) The judgment of this Court in case of Sunbeam Enterprises v.
The Municipal Corporation of Greater Mumbai, in Writ Petition
st
No. 229 of 2018 dated 21 June, 2019;
(iii) The judgment of this Court in case of Ravindra Mutneja v.
Bhavan Corporation, in Appeal From Order No. 281 of 2022
th
dated 27 February, 2003;
(iv) The judgment of this Court in case of TCI Industries Limited
v. Municipal Corporation of Greater Bombay, 2011 SCC OnLine
Bom 1671;
(v) The judgment of this Court in case of Hindustan Petroleum
Corporation Ltd. v. Municipal Corporation of Greater Mumbai,
2012 SCC OnLine Bom 560;
(vi) The judgment of Supreme Court in case of Oswal Agro Mills
Limited v. Hindustan Petroleum Corporation Limited, (2014) 2
SCC 491;
(vii) The judgment of this Court in case of Akbar Travel of India
(Pvt) Ltd. v. Union of India, in Writ Petition No. 656 of 2009
dated 10th June, 2009;
(viii) The judgment of this Court in case of Narangs International
Hotels Private Limited v. Union of India in Writ Petition (L) No.
1105 of 2011 dated 17th June, 2011;
(ix) The judgment of Supreme Court in case of S.P.
Chengalvaraya Naidu (Dead) by LRS. v. Jagannath (Dead) By
LRs., (1994) 1 SCC 1;
(x) The judgment of Supreme Court in case of Dalip Singh v.
State of Uttar Pradesh, (2010) 2 SCC 114;
(xi) The judgment of Supreme Court in case of Supertech Limited
v. Emerald Court Owner Resident Welfare Association with
connected matters, 2021 SCC OnLine SC 648;
(xii) The judgment of Calcutta High Court in case of SKG Pulp &
Paper Mills Pvt. Ltd. v. Assistant Provident Fund Commissioner
(Compliance), 2021 SCC OnLine Cal 436;
(xiii) The judgment of this Court in case of Procter and Gamble
India Ltd. v. Endolabs Limited, (2000) 3 Bom CR 136;
(xiv) The judgment of Supreme Court in case of Bharat Singh v.
State of Haryana with connected matters, (1988) 4 SCC 534;
(xv) The judgment of this Court in case of S.S.V. Developers v.
Union of India, (2014) 2 Bom CR 541;
(xvi) The judgment of this Court in case of Provincial Housings &
Property Ltd. v. Union of India, (2016) 6 Bom CR 393;
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(y) Learned Additional Solicitor General also submitted a note to

distinguish the judgments relied upon by the petitioners.
19. Mr. Sakhare, learned senior counsel for the Municipal Corporation
submitted that the Corporation would leave to the discretion of the
Court for passing appropriate order. He submitted that the alternate
proposal submitted by the petitioners during the pendency of this
petition has been approved by the Corporation subject to the NOC of
Defence.
20. Mr. Godbole, learned counsel for the petitioners submitted that
after 2011, the Central Government issued only guidelines and not the
notification as and by way of pro tem arrangements. He submitted that
each and every judgment relied upon by the learned Additional Solicitor
General is distinguishable on facts. He submitted that the petitioners
have alleged malafide in paragraph (37) of the writ petition. The
respondent no. 2 has granted NOC in respect of the another building
similarly situated after rejection of NOC applied by the petitioners. He
tendered a note distinguishing the judgments relied upon by the
learned Additional Solicitor General.
21. Learned counsel relied upon the judgments of Supreme Court in
case of Satwartna Co-op Housing Society Ltd. v. Bharat Petroleum
th
Corporation Ltd. in Civil Appeal No. 3185 of 2022 dated 26 April, 2022
th
and also judgment of Supreme Court delivered on 8 July, 2022 in case
of The Commandant, Ordance Depot v. The Kolkata Municipal
Corporation, in W.P.A. NO. 13756 of 2021. He submitted that the
judgment of this Court in case of Bharat Petroleum Corporation Ltd. v.
Municipal Corporation of Greater Mumbai in Writ Petition No. 1515 of
2017 has been reversed by the Supreme Court in case of Satwartna Co-
op Housing Society Ltd. (supra).
22. It is submitted that the petitioners have demonstrated as to how
the building of the petitioners was covered by the shadow and shield by
four buildings. In view of the stand taken by the respondents, the
petitioners had agreed to close the vision and to make it a part of the
RCC structure. The petitioners did not have terrace. The Municipal
Corporation has considered the proposal of the petitioners and
approved the subject to the NOC of the Defence. There is a vision also
from the other adjoining buildings which is totally ignored by the
respondent no. 2 while rejecting the NOC in favour of the petitioners.
He submitted that transitory provisions cannot be for indefinite period.
23. Mr. Singh, learned Additional Solicitor General distinguished the
judgment of Supreme Court in case of Satwartna Co-op Housing
Society Ltd. (supra) on the ground that in this case, the Defence has
taken a decision not to grant NOC. He submitted that this Court while
exercising the powers under Article 226 of the Constitution of India
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does not sit in appeal over the decision of the respondent no. 2 refusing
to grant NOC on the ground of security issue. He submitted that no
violation of Article 300A has been committed by the respondents by
refusing to grant NOC since the construction as proposed by the
petitioners is not permissible in law. He submitted that no particulars of
the malafides are given by the petitioners in writ petition. The Court
has to see whether there is any illegality committed by the respondents
in decision making process and not in the decision. He relied upon the
judgment in case of The Union of India v. State of Maharashtra, 2016
SCC OnLine Bom 2570.
24. Insofar as the revised plan submitted by the petitioners is
concerned, it is submitted by the learned Additional Solicitor General
that the liberty was granted to the petitioners in view of the statement
made by the petitioners and without prejudice to the rights and
contentions of both the parties. The permission granted by the
Municipal Corporation on the said revised plan is not binding on the
defence. The security aspect has to be considered by the Defence. This
Court has clarified the order granting such permission to the petitioners
th
on 8 December, 2021 that the said decision of the Municipal
Corporation was subject to the NOC of the Defence, if required.
REASONS AND CONCLUSIONS:
25. We shall first decide the issue as to whether the Guidelines
dated 18/05/2011 or subsequent Guidelines issued by the Central
Government have any force of statute or had no binding force and thus
the Planning Authority could not have insisted on an NOC from the
Defence Authorities before carrying out any construction in the near
vicinity.
26. In our view, this Court will have to first find out whether there
are any powers under the provisions of the MRTP Act or Development
Control Regulations to issue such Guidelines or not.
27. The aforesaid issue raised by the petitioners has been dealt with
by a Division Bench of this Court at length in case of TCI Industries
Limited (supra). This Court held that under Section 46 of the MRTP Act,
the Planning Authority is required to examine the aspect of granting
development permission in an appropriate manner and by considering
the relevant aspects. While granting development permission, one of
the things which the Planning Authority is required to consider is to the
provisions of the draft or final plan sanctioned under the Act meaning
thereby that if any provision in respect of anything in the draft or final
plan published by means of notice or same is sanctioned under the Act,
the Planning Authority cannot ignore the same and it has to be taken
into consideration.
28. This Court held in the said judgment that it is impossible to
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accept the say of the petitioner therein that the Planning Authority
cannot consider any other thing except giving due regard to the
provisions of the draft or final plan as mentioned in Section 46 of the
MRTP Act. Section 46 of the MRTP Act cannot be given such a restricted
meaning and it cannot be said that under Section 46, the Planning
Authority cannot consider any other aspect such as security etc.
29. After rejecting the identical submission made by the petitioners
in that case, this Court held that it is the inherent duty of the planning
authority to apply its mind before giving development permission and
has to keep in mind the pros and cons of such development permission.
This Court gave an example in paragraph 18 of the said judgment that
if there is a fire brigade station or refinery or any sensitive object
located at the place nearby the area for which development permission
is sought, the planning authority cannot shut its eyes and blindly give
sanction only on the basis that, except what is provided in Section 46,
they are not required to call for any other information. Per contra, it is
the duty of the planning authority to call for such information otherwise
they will be failing in their duty. This Court rejected the contention of
the petitioners that the planning authority is not empowered to call for
any other information and to straightaway grant permission and is not
required to call for any other information except the one provided under
Section 46 of the MRTP Act or under the D.C. Regulations.
30. This Court in the said judgment thereafter held that no fault can
be found with the Corporation in insisting for NOC from the Defence
Department. This Court considered the D.C. Regulation 16 (n) and held
that the Planning Authority may refuse to grant permission for using
the land if the proposed development is likely to involve damage or to
have a deleterious impact on or is against the aesthetics or
environment or ecology and/or historical/architectural/aesthetical
building and precincts or is not in the public interest. This Court held
that public interest has wide connotation and if any particular
development activity is found to be not in public interest, in a given
case, the development authority can refuse such permission. The public
interest has to be read independently to the earlier part of the said
Regulation i.e. ecology, architectural aspects etc.
31. This Court held that insistence on the part of the planning
authority for NOC from a particular department cannot be said to be de
hors the provisions of the Act and the Regulations. In our view, the
provisions of Section 46 of the MRTP Act has to be read with Regulation
16(n) of the D.C. Regulations and not in isolation. The submission of
the learned senior counsel for the petitioners that the impugned notices
are beyond the powers or the jurisdiction of the respondents or contrary
to the provisions of Section 46 of the MRTP Act is ex facie illegal and
contrary to the Section 46 of the MRTP Act read with Regulation 16(n)
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of the D.C. Regulations and is accordingly rejected. It is also contrary to

the principles of law laid down by the Supreme Court in case of TCI
Industries Limited (supra).
32. We shall now decide the submissions made by learned counsel
for the petitioners whether the writ property constructed by the
petitioners was “in line with or behind” or “by the shadow or shield” of
any existing structures within 500 meters and thus NOC of the Defence
Authority was not required.
33. It is also the case of the petitioners that the Naval Depot is
surrounded on all four sides by high rise buildings higher than the
petitioners' building. The petitioners have also placed reliance on the
Google Map in the affidavit in rejoinder along with photographs.
34. Learned counsel for the petitioners could not dispute that the
plot of the petitioners is a curved plot. The construction of the
petitioners is coming up at a distance of 375 meters from the North-
East side of the Material Organization, Mumbai. There is no dispute that
the NOC has been granted to the construction proposed on CTS No. 244
to 247 on or about 25/05/2016.
35. The respondents upon a detailed analysis and the site visit found
that the construction carried out by the petitioners will have a direct
line of sight to core Depot at Material Organization, Mumbai. The
construction of the petitioners partially falls in the shadow/shield of four
buildings viz. Mukund Society, Neelkanth Dhara, Police Staff Building
and New Taj Apartment. However, it is not entirely in the
shadow/shield of any building. The proposed construction is partially in
the shadow/shield not on the basis of height, but on the basis of width.
36. Mr. Anil Singh, learned Additional Solicitor General made a
statement that the petitioners can construct building with
shadow/shield and within permissible height. The petitioners, however,
did not challenge the validity of the circular dated 18/05/2011
immediately.
37. We are inclined to accept the submission of learned Additional
Solicitor General that even if the proposed height is reduced from 32.55
meters to 28.65 meters at par with New Taj Apartment, it would not be
correct for the petitioners to canvass that the structure of the
petitioners would be in the shadow or shield of said New Taj Apartment.
Rather, the factum of whether or not the proposed construction is
within the shadow and/or shield of an existing building would be within
the domain of the Navy. This Court cannot record any factual finding on
this aspect. The Navy being an expert in the field of safety and security
and to find out and assess the national security threat has come to the
conclusion that the proposed construction is not within the
shadow/shield of an existing building. The finding of conclusion drawn
by the Navy Establishment cannot be interfered with by this Court.
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38. It is the case of the petitioners that there is no threat perception

on the ground and that in case of few buildings referred to in paragraph
No. 10 of this order, NOCs were already granted by the Municipal
Corporation and/or the Naval Authorities in the Ghatkopar area, which
had direct line of sight to the Naval Depot at Ghatkopar. It is also the
case of the petitioners that the Naval Depot is surrounded on all four
sides by high rise buildings higher than the petitioners' building. In our
view, Mr. Singh, learned Additional Solicitor General appearing for
Union of India is right in his submission that before granting any NOC
by any Local Military Authority, a detailed exercise is undertaken in
each case based on independent factors. Each construction or each
proposal for NOC is viewed independently and separately. The
individual factors are duly considered before granting or refusing an
NOC. Local Military Authority conducts a physical investigation, which
involves not merely an inspection of the proposed site of construction,
but an investigation/inspection of the entire neighbourhood.
39. Learned Additional Solicitor General rightly pointed out that the
entire procedure has been followed by the authorities before
considering whether NOC shall be granted or not to any party for
carrying out development in the nearby vicinity, which may affect the
security aspect. He rightly pointed out that a detailed
assessment/analysis report is prepared by the Local Military Authority,
such report is then placed for further consideration before the
Headquarters, Western Naval Command, which not only deliberates
upon the same but if it deems fit or necessary, may even conduct a
physical inspection itself to ascertain the factual position. It is only
after the detailed analysis that the Authority evaluates the interest of
national security vis-à-vis the Defence Establishment with respect to
grant of NOC.
40. We are inclined to accept the submission of learned Additional
Solicitor General that only after carrying out a detailed investigation, so
as to ascertain, whether permission if any, granted for construction
would affect the national security or not, the Local Military Authority
insisted for NOC to be obtained by the petitioners before carrying out
any construction.
41. In our view, learned Additional Solicitor General is right in his
submission that merely because one building, which was of the height
of 10 floors had been granted NOC, another building of 10 floors would
automatically be entitled to an NOC is not correct. It would not be
appropriate to state that merely because four proposed constructions
had been granted NOCs, the petitioners are entitled for such an NOC
automatically. The respondents have to consider various critical factors
on every proposal separately, which may differ between the two
constructions, which may otherwise appear similar. We are inclined to
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accept the submission of learned Additional Solicitor General that all

factors are required to be taken into consideration before issuance of
grant or rejection of NOC, which would affect national security if such
NOC is granted.
42. The respondents have stated to have insisted for NOC also on
the ground that several acts breaching the security and safety
measures were considered necessary in the wake of such incidents both
within India and internationally. The security aspect has to be
considered as per the status as on date, of considering the application
for NOC and not based on the premise that in the past few other
buildings in the nearby vicinity were granted permissions. We accept
the statement made by learned Additional Solicitor General that
respondent No. 6 is in the process of revoking the grant of NOC to the
construction proposed on CTS Nos. 244 to 247.
43. Admittedly, the petitioners did not apply for any permission from
the Local Military Authority before commencement of the construction
and without any such permission, commenced construction.
44. Learned counsel for the petitioners did not dispute that the old
building was comprising of 4 wings i.e. Wing ‘A’ comprised of ground +
3 floors configuration, Wing ‘B’ comprised of ground + 4 floors
configuration, Wing ‘C’ comprised of ground + 2 floors configuration +
part terrace and Wing ‘D’ comprised of stilt + four floors configuration,
were demolished by the petitioners and petitioner No. 2 proposed to
construct a single building of four wings in the proposed configuration
of basement + stilt + 1 to 9 upper floors configuration. The petitioners
were thus required to obtain NOC from the Defence Authority, having
proposed to carry out construction beyond a particular height
prescribed in the Guidelines/Circulars issued by the Central
Government.
45. Mr. Godbole, learned counsel for the petitioners could not
dispute that when the petitioners were issued Letter of Intent in the
year 2014 or thereafter, the provisions of MRTP Act and Development
Control Regulations were in force and were applicable. The petitioners
cannot be allowed to take advantage of its own wrong.
46. Insofar as the new proposal submitted by the petitioners for
consideration of the respondents is concerned, it is the case of the
respondents that the said new proposal was also analyzed by the
respondents and after detailed analysis, it was found that the said new
proposal also could not be considered due to safety and security threat
persisted even at that time.
47. The petitioners heavily placed reliance on the sanction granted
by the Municipal Corporation to the new proposal submitted by the
petitioners. The said new proposal was allowed to be submitted during
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the pendency of this petition without prejudice to the rights and

contentions of the parties. The reliance thus cannot be placed on the
said sanction granted by the Municipal Corporation. Learned counsel for
the petitioners could not dispute that the proposed construction is
within the vicinity of the Defence Establishment.
48. We are inclined to accept the submission made by learned
Additional Solicitor General that the restrictions imposed for carrying
out construction of the building of the petitioners are based on some
intelligence report/record. The public interest has to be given
importance as against the private interest and, thus, in case of any
conflict between the public interest and private interest, the public
interest would prevail.
49. Learned Additional Solicitor General is right in his submission
that the respondents have to conduct measures, while considering the
application for NOC keeping in mind the precautionary measures that
have to be taken while considering the proposal for carrying out
construction. The allegations of mala fides made by the petitioners in
paragraph No. 37 of the petition are totally vague and without
particulars. The allegations of mala fides have to be specific and have to
be established.
50. Learned Additional Solicitor General vehemently urged that the
respondents could not consider the proposal of the petitioners to close
the vision and to make it a part of the RCC structure to obviate any
security threat. We are inclined to accept the submission made by
learned Additional Solicitor General that closing of such vision would
still persist the security threat and could not have been accepted as a
permanent solution.
51. Be that as it may, the Defence Authorities are the experts to
assess the national security threat and not the petitioners or this Court.
The Defence Authorities are the experts in this field and once having
formed such opinion based on material before it and intelligence report,
the same cannot be substituted by another opinion by this Court by
acting as an expert on the security aspect.
52. The suggestion of the petitioners to install Vision Cutters of
Aluminium Composite Panels is rejected by the respondents on the
ground that it may corrode. Similarly, as the permanent RCC Louvers
Vision Cutters proposed by the petitioners are concerned, the Municipal
Corporation rightly rejected the said proposal on the ground that the
RCC Vision Cutters can also be removed. This Court cannot interfere
with the security aspect considered by the respondents and having
apprehended such security threats and on that basis rejection of the
NOC, cannot be interfered by this Court by exercising discretionary
power under Article 226 of the Constitution of India.
53. Insofar as the submission of learned counsel for the petitioners
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that the Developers have spent more than Rs. 12.58 crores on payment
of transit accommodation, including corpus and Rs. 44.14 crores for
construction as of March, 2022 is concerned, in our view, if the
petitioners would have obtained permission of the Defence Authorities
before carrying out construction or at the time of making application for
sanction of the plan for construction of two towers, the petitioners
would not have spent any such amount alleged to have spent on transit
accommodation or for construction of the building. We are not
expressing any view on the issue as to whether the petitioners should
be entitled to claim any compensation in view of the respondents not
having issued an NOC in favour of the petitioners.
54. In our view, the reliance placed by the petitioners, on the text of
the speech of the learned Minister allegedly stating that any building, if
existed upto 500 sq. meters, there was no problem in granting
permission, is misplaced.
55. We are inclined to accept the submission of learned Additional
Solicitor General that the Material Organization, Mumbai, situated at
Ghatkopar, is a sensitive and vital unit of the Indian Navy and, thus,
the NOC was rightly refused by the respondents in favour of the
petitioners. The right to develop is not an unconditional right, but is a
right subjected to and depending upon the satisfaction of the terms
and conditions contained in the letters of sanction, approval in that
behalf and also the planning laws. It was the duty of the Planning
Authority to insist for NOC of Defence Establishment, which was
required to be obtained by the petitioners at the time of sanctioning the
plan submitted by the petitioners.
56. Learned counsel for the petitioners could not distinguish the
judgment of this Court in the case of Sunbeam Enterprises (supra),
which considered and noted the importance and sensitive nature of the
Material Organization, Ghatkopar. The said Material Organization,
Ghatkopar also qualifies as a Naval Establishment within the meaning
of the term ‘Naval Establishment’ set out in Section 3(12A) of the Navy
Act, 1957.
57. This Court cannot direct the defence authorities to compromise
the safety and security of the nation. There is no negative equality
provided in Article 14 of the Constitution of India. It is for the
petitioners to show as to how this construction is permissible despite
the security threats.
58. In our view, there is no substance in the submission of the
learned counsel for the petitioners that the circulars issued by the
Central Government are in the nature of executive instructions or are in
violation of Article 19(1)(g) or Article 19(6) of the Constitution of India.
The petitioners have placed reliance on Articles 73 and 162 of the
Constitution of India in support of the submission that the circulars are
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in the nature of executive instruction. In our view, the guidelines issued

by the Central Government are to guide the Defence establishment to
deal with the issue of NOC when approached by the Planning Authority.
There is no violation of fundamental rights of the petitioners.
59. The purpose and object is to strike the balance. Restriction on
construction activities is primarily part of the planning laws i.e. MRTP
Act and D.C. Regulation. The guidelines issued by the Central
th
Government are to restrict the construction activities higher than 4
floor. A perusal of guidelines clearly indicates that there is no complete
bar on the construction. No fundamental rights of the petitioners are
thus violated. Be that as it may, the fundamental rights claimed by the
petitioners under Article 19(1) (g) are subject to the restrictions under
Article 19(6) of the Constitution of India.
60. In so far as the submission of the learned senior counsel for the
petitioners that the impugned action is also in violation of Article 300A
of the Constitution of India is concerned, this aspect has been dealt
with by this Court in case of TCI Industries Limited (supra) and has
held that simply because, the construction activity is not permitted, it
cannot be said that such action is violative of Article 300A of the
Constitution of India. This Court held that under D.C. Regulation 16, no
development activity is permissible in certain eventuality which
includes public interest also. The validity of D.C. Regulation 16 has not
been challenged by the petitioners.
61. This Court accordingly held that the Corporation had acted
within its authority and it could not be said that the petitioner is
deprived of its property without any authority of law. This Court also
rejected the argument that the security aspect which was pressed into
service by Navy was a bogey or imaginary one, as appropriate material
has been placed on record to buttress the stand of the Navy. There is
thus no substance in this submission made by the leaned senior
counsel for the petitioners.
62. This Court in case of Hindustan Petroleum Corporation Ltd.
(HPCL) (supra) allowed a writ petition filed by HPCL impugning the
approval and permission granted by some of the authorities in favour of
the developers in the vicinity of the petitioner therein on the ground of
security reason. This Court, after adverting to various judgments of the
Supreme Court and this Court, held that even if the relaxation in
respect of the dimensions in case of hardship, can be granted by the
Municipal Commissioner, Municipal Commissioner is prohibited from
granting such relaxations if such relaxation affects health, safety, fire
safety, structural safety and public safety of the inhabitants of the
building and the neighbourhood.
63. This Court categorically rejected the submission made by the
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developers that the security aspect should not have been considered at
all by the Municipal Commissioner while sanctioning the plan for
development or while permitting the change of user under any of the
provisions of the D.C. Regulations or Mumbai Municipal Corporation Act
or Maharashtra Regional Town Planning Act. This Court held that it is
not only the power but also duty of the Municipal Commissioner to
consider the security aspect in public interest before granting
permission to develop any land as well as permitting change of user
from one zone to another zone. This Court considered the Regulation 16
(a), (e), (n) read with Regulation 64(b) read with section 46 of the
M.R.T.P. Act while rejecting the submission of the developers that there
was no enabling provision under the present D.C. Regulations or any
other provisions to consider security and health aspect before
sanctioning the plan or before permitting change of user by the
Municipal Commissioner.
64. This Court after adverting to the judgment in case of TCI
Industries Limited (supra) held that the security and health aspect in
respect of public at large is a part of planning which the authorities
ought to have considered as a mandatory duty before sanctioning any
plan or permitting development or before permitting change of user. It
is held that security as well as health aspects are crucial and are of
equal concern and are of fundamental necessity that the Planning
Authorities, the Government and the Public bodies, who are entrusted
with the task of deciding on the location of residential areas, must be
alive to these very real and basic necessities at all times. The Court
cannot permit any compromise or leniency on these issues by public
body or even individuals. This Court also rejected the arguments in that
matter that the action on the part of the petitioner therein was in
violation of Article 300A of the Constitution of India.
65. The Supreme Court has rejected the Special Leave Petition (SLP)
converted into civil appeal arising out of the said judgment of this Court
in case of Hindustan Petroleum Corporation Ltd. (supra). The Supreme
Court in case of Oswal Agro Mills Limited (supra), after considering the
provisions of Regulations 16 (a), (e) and (n) and various other
provisions, held that this power is coupled with the duty to give
paramount importance to safety. In our view, the submissions
advanced by the learned senior counsel for the petitioners are contrary
to the principles of law laid down by the Supreme Court in case of
Oswal Agro Mills Limited (supra).
66. Division bench of this Court in case of S.S.V. Developers (supra)
has followed the principles of law laid down by this Court in case of TCI
Industries Limited (supra). This Court rejected the submission of the
petitioner therein that the guidelines issued by the Government of
th
India, Ministry of Defence dated 18 May 2011 for issuance of NOC for
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building construction are arbitrary and did not provide for any
safeguard. This Court held that those guidelines were issued because
the authorities found that the said WODA which imposes restrictions
upon use and enjoyment of the land in the vicinity of defence
establishment needs to be comprehensively amended so as to take care
of security concerns of defence forces. The process of amendment has
been put in motion and may take some time. This Court held that the
objective of these instructions is to strike a balance, between the
security concerns of the defence forces and the right of public to
undertake construction activities on their land. The principles of law laid
down by this Court in the said judgment apply to the facts of this case.
67. In our view, the reliance placed by the petitioners on the
judgments of the Supreme Court in case of F.B. Taraporawala v. Bayer
India Ltd. (supra), in case of B.K. Ravichandra v. Union of India (supra)
and in case of Canara Bank v. N.G. Subbaraya Setty (supra) in so far as
the submission of the petitioners that the impugned notice violates
Article 300A of the Constitution of India has no merit. There is no
dispute about the proposition of law laid down by the Supreme Court in
the above referred three judgments. However, since there is no
violation of the Article 300A of the Constitution of India, those
judgments would not assist the case of the petitioners.
68. This Court in case of Union of India v. State of Maharashtra
(Adarsh Co-operative Housing Society Ltd. case) (supra) had
considered the submissions of both the parties including the
submission of the Union of India that Adarsh building poses a serious
threat to the security of the Colaba Military Station. This Court held that
section 46 of the MRTP Act indicates that while considering the
application for permission, the planning authority shall have due regard
to the provisions of any draft or final plan or proposals published by
means of notice submitted or sanctioned under the said Act.
69. This Court held that NOC of Defence Establishment is necessary
and in fact it is a mandatory duty of the planning Authority to insist for
NOC of Defence Establishment while considering proposal for building
permissions. This Court after adverting to the judgments of this Court
in case of TCI Industries Limited (supra), in case of S.S.V. Developers
(supra), in case of Hindustan Petroleum Corporation Ltd. (HPCL)
(supra) and also the decision of the Supreme Court in case of Oswal
Agro Mills Limited (supra) held that it is a mandatory duty of the
planning Authority to insist for NOC of Defence Establishment. This
Court held that simply because no declaration under Section 3 of the
Act is issued, it cannot be said that the defence establishment was not
entitled to insist for their NOC. This Court further held that the
provisions of WODA are not the sole repository for prohibiting
construction activities near Defence Establishment and the Central
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Government can certainly invoke Section 46 and Regulation 16 of the

D.C. Regulations.
70. In the said judgment, this Court also considered the argument
that there are several high-rise buildings in the near vicinity which are
totally overlooking into the MG & G Area and Army and Navy area in
Colaba and held that sensitive and vital installations have to be
safeguarded and protected from entry of persons who are considered to
be undesirable and a security risk. The writ court does not possess any
expertise in such cases. The Court cannot indulge in guess work and
hold that the security concern expressed by the petitioner is not
bonafide.
71. This Court held that in that case, security of CMS was involved
and thus this Court was not prepared to accept that for any extraneous
reason the present petition is instituted. This Court also observed the
fact that the nature of threat to the security of nation has undergone a
vast change over the last decade with terrorism emerging as a source
of major and unconventional danger need not be over emphasized. The
assessment of such threats has heightened and the precautionary
measures taken against them are expanded. This Court also considered
that in the year 2007, blast in local train in Mumbai occurred. On
26.11.2008 a terror attack occurred in Mumbai. Times have changed.
People have changed. Technology has advanced. New techniques are
employed. Increase of terrorism is an accepted international
phenomenon.
72. This Court has also held in the said judgment that when national
interest is pitted against private interest, naturally national interest
must be protected as against the private interest. Technical objections
of delay and laches will not come in the way of the court in exercising
its extra ordinary jurisdiction under Article 226 which is undoubtedly
equitable jurisdiction and the Court will grant relief for protecting
national as well as public interest. This Court accordingly held that
petition could not be dismissed on the ground of gross delay and
laches. The principles of law laid down by the Supreme Court in case of
Union of India v. State of Maharashtra (Adarsh Co-operative Housing
Society Ltd. case) (supra) are applicable to the facts of this case.
73. This Court in case of Sunbeam Enterprises (supra) considered
the arguments similar to the arguments raised by the petitioners in this
case. This Court also considered the guidelines issued by the Central
Government and held that in principle, this Circular contemplates that
in places where local Municipal Laws require consultation with the
Station Commander before a building plan is approved, the Station
Commander may convey its views after seeking approval from the next
higher authority not below the rank of Brigadier or equivalent within
four months of receipt of such requests or within the specified period, if
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any, required by law. Objection/views/NOC will be conveyed only to the

State Government agencies or to Municipal Authorities.
74. It is held that the Station Commander may refer the matter
immediately to its next higher authority in the chain of its command.
Then the Station Commander may convey its objection/views to the
local municipality or State Government agencies. This Court considered
th st
the clarificatory Circulars dated 18 March, 2015 and 21 October,
2016 and also Regulation 16(e) and 16 (n) of the D.C. Regulations in
the said judgment and held that the security aspect is a fundamental
necessity and that the Planning Authority and the public bodies who are
entrusted with the task of deciding on the location of residential areas,
must be alive to at all times. The Court cannot permit any compromise
or leniency on these issues, especially with reference to security by any
of the public bodies or even individuals. It is held that taking into
consideration the aspect of security of our Naval Establishments and
that of the public is a mandatory duty of the MCGM (the Planning
Authority) before sanctioning any plan or permitting any development.
The Municipal Corporation has to apply its mind before giving
development permission and to keep in mind the pros and cons of
granting such permission.
75. We are of the view that this Court cannot lose sight of the fact
that indeed the time has changed. Terrorism is on the rise and the
State is no longer fighting a known enemy. The nature of threat to the
security of nation has undergone a vast change over the last decade
with terrorism emerging as a source of major and unconventional
danger. The assessment of such threats has heightened and
accordingly the necessary precautionary measures have to be taken
against them.
76. This Court in case of Narangs International Hotels Private Limited
(supra)> has held that the examination of security threat is an ongoing
process. It is held that whether there is any real, apparent and
imminent danger emanating from the report can be decided by the
Intelligence Bureau. Threat perception falls in the domain of
Intelligence Bureau. The Court is unable to draw any conclusions in that
behalf.
77. Insofar as the submission of the petitioners that the flat
purchasers are affected because of NOC not having been granted by the
respondents is concerned, this aspect has been considered by this
Court in Adarsh Society (supra) and has been rejected. The petitioners
are solely responsible for this situation and not the respondents.
78. The Supreme Court in case of Rai Sahib Jawaya Kapur (supra)
has held that a perusal of Article 154 of the Constitution of India
indicates that it does not follow, that in order to enable the executive to
function, there must be a law already in existence and that the powers
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of executive are limited merely to the carrying out of these laws.

79. The Supreme Court in case of Kasturi Lal Lakshmi Reddy (supra)
has held that one basic principle which must guide the Court in arriving
at its determination is that there is always a presumption that the
Government action is reasonable and in public interest and it is for the
party challenging its validity to show that it lacks in reasonableness or
is not in conformity with public interest. This burden is a heavy one and
it has to be discharged to the satisfaction of the Court by proper and
adequate material. We are inclined to accept the submission made by
Mr. Naphade, learned counsel for the respondent no. 6 that though the
respondent no. 3 had raised an objection when the building was
th
constructed upto 7 floor, the Municipal Corporation had issued stop
work notice when the building was constructed upto 19th floor was
constructed.
80. Insofar as the judgment of the Supreme Court in case of
Satwaratna Co.op Housing Society Ltd. v. BPCL (supra) relied upon by
the learned senior counsel for the petitioners in support of the
submissions that the judgment of this Court in case of BPCL v.
Municipal Corporation of Greater Mumbai delivered on 25th April 2019 is
reversed by the Supreme Court is concerned, a perusal of the said
judgment of the Supreme Court in case of Satwaratna Co.op Housing
Society Ltd. v. BPCL (supra) indicates that the earlier judgment of the
Supreme Court has not been brought to the notice of the Supreme
Court on the similar issue. Be that as it may, the facts before the
Supreme Court in the said judgment are different from the facts before
this case.
81. The Supreme Court in case of Satwaratna Co.op Housing Society
Ltd. v. BPCL (supra) has held that when acting under Article 226 of the
Constitution of India, High Court does not act as a Court of Appeal and
hence would not be entitled to interfere with exercise of discretion by
an Officer except in cases of violation of a law, rule or regulations. In
this case, higher authority of Defence Establishment after considering
the security aspect perceived by it had insisted for NOC. The NOC from
Defence Establishment was mandatory before carrying out any
construction in the nearby vicinity within the close proximity. In our
view, the said judgment would support the case of the respondents and
not the petitioners. The Defence Establishment having considered the
security aspect being an expert, this Court cannot interfere with the
decision of the said expert while exercising powers under Article 226 of
the Constitution of India. The guidelines dated 18th May 2011 read with
amendment were not considered in that case.
82. The said judgment does not deal with interpretation of MRTP Act
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and D.C. Regulation with reference to the safety and security of

Defence Establishment which has been considered in large number of
judgments delivered prior to the judgment in case of HPCL (supra). The
Supreme Court in the said judgment was considering an issue as to
whether a buffer zone could be created around a refinery. There is no
such issue in this case. In our view, the writ petition is devoid of merit.
83. Insofar as the judgment of Calcutta High Court in the case of
The Commandant, Ordinance Depot (supra) relied upon by Mr. Godbole,
learned counsel for the petitioner is concerned, the facts before the
Calcutta High Court were totally different. Various judgments of this
Court and the Supreme Court relied upon by learned Additional Solicitor
General in this matter were not cited before the Calcutta High Court.
The provisions of the Calcutta Municipal Corporation Act and Calcutta
Municipal Corporation Building Rules pressed into service by the parties
were totally different. The said judgment is clearly distinguishable on
facts and it does not advance the case of the petitioners.
84. Insofar as the judgment of this Court in the case of Sea Kunal
Corporation Pvt. Ltd. (supra) relied upon by Mr. Godbole, learned
counsel for the petitioners is concerned, a perusal of the said judgment
indicates that the said judgment does not deal with the circular dated
18/03/2015. In this case, the Navy has specifically asserted that the
proposed construction is not entirely within the shadow and/or shield of
any existing building and, hence, is not entitled to seek any benefit of
the said Circular dated 17/11/2015. The said judgment of this Court in
the case of Sea Kunal Corporation Pvt. Ltd. (supra) has been
distinguished by this Court in the case of Sun Beam Enterprises
(supra).
85. Insofar as the judgment of this Court in Tirandaz Subha Niketan
Co-operative Housing Society Limited (supra) is concerned, this Court
in the said judgment has held that the Naval Housing Colony was not a
sensitive Defence Establishment. The petitioners have not disputed that
the Material Organization, Ghatkopar is a sensitive Defence
Establishment. The said judgment of this Court is thus clearly
distinguishable on facts.
86. Insofar as the judgment in the case of Runwal Constructions
(supra) relied upon by Mr. Godbole, learned counsel for the petitioners
is concerned, the construction of the petitioners therein was at a
distance of approximately 500 meters from the Helipad. There were two
notifications under WODA, which imposed restrictions upto a distance
of 100 mtrs. This Court in the facts of that case observed that the
reliance on Guidelines by the respondents was not justified in view of
the fact that there was already a notification under WODA.
87. In the present case, there is no notification under WODA. In a
catena of decisions by this Court, it is already held that the notification
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under WODA is not the only source for issuing such directives in public
interest. This Court also after considering the provisions of Section 46
of the MRTP Act and various provisions of the Development Control
Regulations, which are applicable, had held that under those provisions,
the Planning Authority could not have sanctioned the plan in absence of
any NOC having been granted by the Defence Establishment.
88. Insofar as the judgment of the Rajasthan High Court in the case
of S.R. Land Square Pvt. Ltd. (supra), relied upon by Mr. Godbole,
learned counsel for the petitioners is concerned, the said judgment
would not apply to the facts of this case. The facts considered by the
Rajasthan High Court were totally different. In this case, the Navy has
specifically found that the proposed construction would have a direct
line of sight to the core depot at Material Organization, Ghatkopar and
thus grant of NOC would be contrary to the Guidelines on national
security thereat and would not be feasible.
89. Insofar as the judgment of the Delhi High Court in the case of
GNCT of Delhi (supra) is concerned, in the said judgment, the Delhi
High Court considered the case of Military Establishment. The said
judgment was not dealing with a Naval Establishment. The Guidelines
dated 21/10/2016 applies and enlists only army units. This Court has
already held in Sun Beam Enterprises (supra) that the Guidelines dated
21/10/2016 would not apply to Naval Establishments.
90. Insofar as the judgment of the Kerala High Court in M.P. Hussain
Kuhi (supra) relied upon by Mr. Godbole, learned counsel for the
petitioners is concerned, in the said judgment the Kerala High Court
dealt with a Military Establishment and not of Navy Establishment. This
judgment is also distinguishable on the same ground on which the
judgment of the Delhi High Court in GNCT of Delhi (supra) is
distinguished.
91. Insofar as the judgment of Kerala High Court in Fathimathul
Raseena (supra) relied upon by Mr. Godbole, learned counsel for the
petitioners is concerned, in that matter, the defence had clarified before
the High Court that on a subsequent assessment of the security
requirements, the construction activities of the petitioner therein were
found to be not objectionable. The said judgment was based on the
concession made by the Defence Authorities as is obvious on a plain
reading of the said judgment. The said judgment is thus clearly
distinguishable on facts.
92. During the course of the argument, at the fag end, learned
Additional Solicitor General tendered a sealed envelope stating that the
said confidential report can be perused by this Court relating to security
aspect in the present matter. Mr. Godbole, learned counsel for the
petitioners fairly stated that such report can be perused by this Court if
it deems fit.
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93. We have accordingly perused the said confidential report, which

indicates that if any such construction is permitted, it will have serious
security threat to the Material Organization, Ghatkopar, considering the
nature of activities being carried on in the said Depot.
94. For the reasons recorded aforesaid, we are of the view that there
is no infirmity in the action on the part of the respondents in refusing
the NOC in favour of the petitioners to carry out the proposed
construction.
95. The powers of the writ court under Article 226 of the
Constitution of India are limited to interfere with such decisions taken
by the experts, who have to take a decision whether a particular NOC
would be in public interest or would pose any national security threat or
not.
96. We accordingly pass the following order:—
ORDER
(i) Writ petition is dismissed. Rule is discharged. Interim application
pending, if any, stands disposed off.
(ii) This Court has not expressed any views on the issue whether the
petitioners would be entitled to seek any compensation from the
respondents for the loss, if any, suffered by the petitioners in view
of the notices issued by the respondents. The said issue is kept
open.
(iii) No order as to costs.
———
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