Mumbai: The Bombay High Court has paved the way for reconstruction of a two-storey structure in Worli which is adjacent to the boundary wall of INS Trata.
“We find that the facts of this case are so glaring that it would be illogical and even absurd to say that the same building with the same height at the same place as the earlier building which existed in the vicinity of INS Trata would become a security hazard upon its construction. What was not a hazardous structure from a security viewpoint would not become so only because it is constructed anew without any increase in height,” a division bench of Justices Sunil Shukre and MW Chandwani said.
HC directs BMC to process applications
The HC has directed the BMC to process the application by the petitioners, without the requirement of any no-objection certificate from the naval authorities, and take an appropriate decision in accordance with law within a period of four months.
The court refused to stay its order following a request from the Union government saying that the BMC has been given four months to process the application.
The HC was hearing a petition filed by Dolby Builders Private Ltd. (formerly known as JGB Builders Pvt. Ltd.) and its shareholder Girish Agarwal, which owns the structure. It sought direction from the BMC to grant permission for the reconstruction of the structure. In the alternative, it sought direction from respondents to acquire the property in accordance with law and grant fair compensation.
According to the plea, a two-story structure called ‘Summit’ was constructed in Worli in 1038-1940. INS Trata was commissioned in 1991-92.
In 2005, the owners tried to redevelop the building and sought permission to construct a multi storey building in its place. The permission was rejected by the BMC due to opposition by the Union of India and naval authorities.
Since the building was demolished, the new management of the company, in June 2019, sought fresh permission for the construction of a two-storey bungalow of 12 metre height. However, the same was rejected by the civic body referring to the security hazard cited by the naval authorities.
Hence, they approached the HC contending that there were several other highrises in the vicinity.
The judges noted: “There can be no second opinion about the fact that security of a Defence Establishment and Naval Establishment is of paramount importance and there could be no compromise with it. It is also not in doubt that in the matter of security, Defence Authorities are the experts and their opinion has to be accepted.”
It said that it was not common citizens to foray into the field which is an exclusive preserve of the Defence Authorities and make an attempt to formulate an opinion, by making comparison between certain buildings situated in the vicinity of the Defence Establishment and Naval Establishment.
However, it said that there can be peculiar facts and circumstances of a case which may provide for an exception to the general rule, like in the given case.
“The facts and circumstances of this case.. indicate that such insistence of respondent no.1 (BMC) is unreasonable by application of the Wednesbury principle. These facts and circumstances unambiguously and unmistakably show in a logical way that if a similar building which existed in the past did not cause any security hazard to INS Trata, then there is no way that substitution of the said building by another building would suddenly result in a security risk for INS Trata,” the bench opined.
(The Wednesbury Principle states that if a decision is so unreasonable that no sensible authority could ever take it, then such decisions are liable to be quashed through judicial review.)
Their senior counsel Milind Sathe argued that the petitioners’ application was rejected based on “erroneous apprehension” and is arbitrary in nature. Sathe also submitted that other structures with greater height existing in the vicinity of INS Trata are allowed to be constructed, and alleged unequal treatment towards the petitioners.
Naval authorities refused to grant permission due to possible security hazards
Additional Solicitor General (ASG), appearing for the Union, submitted that the naval authorities refused to grant permission since the proposed construction was adjacent to the boundary wall of INS Trata and that the proposed construction would have a direct line of sight to the operational infrastructure of naval ship, which was considered as a security hazard.
The Union contended that there are some structures and buildings which are multi-storeyed or high-rise structures, but those structures have not been viewed by the Defence Experts as hazardous from the security viewpoint of INS Trata - Defence Establishment. Therefore, there cannot be any case made for giving unequal treatment to the petitioners in the matter.