Union Ministry of Defence’s circular, which was issued post Adarsh housing society scam, regarding issuance of No Objection Certificate (NOC) for construction activities in the vicinity of army establishments is only in the nature of guidelines and does not confer any right to prohibit construction or seek demolition, the Bombay High Court has held.
The observation was made by a division bench of Justices Sunil Shukre and MW Chandwani on October 23 while dismissing a petition filed by the Union Ministry of Defence seeking demolition of a high rise commercial building “Ganga Trueno” claiming that it was near the Unit of Southern Command Composite Signal Regiment at Lohegaon in Pune.
The Ministry of Defence (MoD) relied on its circular issued in May 2011 containing guidelines for issuance of No Objection Certificate for building constructions near army establishments. The circular had raised the issue of NOC for construction on lands adjacent to defence establishments following the controversies generated after the Adarsh housing society scam in Mumbai.
Adarsh housing society scam
Adarsh housing society, the 31-story building which was originally meant for Kargil war widows, was built in the vicinity of the military station at Colaba in south Mumbai. It ran into controversy for not having requisite permissions for its construction. The Defence ministry had then said that the society was a security threat as it overlooked vital installations of the army.
In Ganga Trueno’s case, the HC noted that permission for its construction was granted in 2008, much before the circular was issued by the MoD. Also, the circular was in the nature of guidelines only and would not confer any right upon it to seek any prohibition on any ongoing construction and demolition of any building.
“In the present case, we have found that the circulars of the Ministry of Defence are not even in the nature of executive instructions. Rather, they fall under a category of only departmental circulars binding upon the officers of the department and not outsiders or third parties,” the bench noted.
The judges also remarked that the circular contemplates that the army station commander shall convey the objections or views about any construction to the state government agencies or municipal authorities and not to builders or private parties.
The court emphasised that the circular does not say that any NOC should be obtained by the land owner making construction. The circular by itself does not impose any direct restriction upon undertaking construction of any building within the distance of 100 metres or 500 metres from the defence boundary and it only gives authority to the Commanding Officers to take objection or to take an appropriate decision, the court said.
It added: “The circular does not give any clear guidance as to what course of action in law may be taken by the Defence Authorities when objection is taken and not accepted by the State government or local municipal authorities.”
‘No clarity on the guidelines’
“There is no clarity in these guidelines, if or not the Defence Authorities would get any right to stop the construction work and also seek its demolition,” the bench underlined.
While dismissing the petition, the HC has asked the local authority concerned to issue occupancy certificate to the building within eight weeks.
