Mumbai: The Bombay High Court on Friday dismissed a petition by residents and a builder seeking to redevelop a cessed building, Laxmi Niwas, located within 100m of redeveloped. The court observed that “individual interest cannot prevail over the national interest”.
A division bench of Justices RD Dhanuka and Kamal Khata observed that the Central government and the Mazgaon Dock Shipbuilders Limited (MDSL) have “sufficiently brought on record the security concerns in not granting NOC (No Objection Certificate) to the petitioners to carry out development of the writ property”.
The court also observed that it does “not possess any expertise on the security threat perceived by the defence authority” and reasoned that if it “interferes with the security threats” perceived by the authority, “this court would exceed its jurisdiction by embarking on this exercise”.
The HC was hearing a petition filed by residents of Laxmi Niwas and Nakhwa and Jasol Developers LLP, seeking quashing stop work notices issued by the BMC on April 18, 2018 and May 4, 2018. They prayed that a commencement certificate be issued to their project.
According to the plea, the residents vacated the building and 10 floors have been constructed after demolition. The project consists of ground plus 19 floors, out of which 12 floors are meant for rehabilitation of the existing tenants and the remaining for free sale. Third party rights have already been created for the free sale area.
On July 28, 1987, the Government of Maharashtra issued a notification declaring the area of Mazgaon Dock Ltd., including 200m of waterfront area, as a ‘prohibited place’ under the provisions of the Official Secrets Act, 1923.
The petitioners, on May 10, 2013, obtained NOC from the Maharashtra Housing And Area Development Authority (MHADA) for redevelopment. They then demolished the building and started construction of a new building.
However, in December 2017, MDSL sent a letter to the BMC raising objection to the project. This was the first time any objection was raised regarding the project.
Pravin Samdani, counsel for the petitioners, argued that the stop work notices were “without authority of law”. The BMC neither imposed any condition for obtaining the NOC from MDSL nor did it reject or impose conditions on development permission on the basis of proposed revision in policy.
He further contended that MDSL is a Company registered under the Companies Act, 1956, in which majority shareholding is of the Government of India. Besides, MDSL is also carrying out its private work and cannot be considered as Defence Establishment under the provisions of Work of Defence Act.
Additional Solicitor General (ASG) Anil Singh contended that MDSL is a Defence Establishment / Local Military Authority and its protection is in “national interest”. “The Defence Authority is an expert to decide the security of the nation. There are terrorist attacks increasing day by day. Merely because inconvenience may be caused to the citizen/individual developer, such inconvenience cannot be considered as against the national interest,” argued ASG.
Citing an apex court judgement, the HC said that the indeed the “times have changed”, “terrorism is on the rise” and the State is “no longer fighting a known enemy”.
The court clarified that it has not expressed any views on 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.
