Mumbai: The Bombay High Court on Friday dismissed a petition by Vikram Delite Co-op Housing Society Ltd and developer Shree Ramkrishn Enterprises seeking redevelopment permission for their building in suburban Ghatkopar, which is within 400m of a Naval establishment.
Refusing to grant a no-objection certificate (NOC) for the project, a division bench of Justices RD Dhanuka and Kamal Khata observed that it has limited powers to “interfere with decisions taken by the experts”.
While upholding the decision of the Naval authority and subsequent refusal by the BMC to grant Commencement Certificate (CC), the HC said, “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.”
The HC was hearing a petition filed by the society and developer seeking quashing and setting aside of two letters, dated Nov 17 and Nov 30, 2016, issued by the Flag Officer Commanding in Chief, Western Naval Command, refusing to grant NOC. The petitioners had prayed that they be issued CC without insisting on NOC from Naval authorities.
On May 18, 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.
Counsel for the petitioner, Girish Godbole, argued 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.
On April 25, 2014, the society decided to redevelop their four wings which were in a dilapidated condition and signed a redevelopment agreement with the Shree Ramkrishn Enterprises. The proposed construction is of four wings A, B, C, D having the configuration as Basement + stilt + ground + 1st to 9th upper floors. The residents vacated their flats between July to September, 2014 and the developer was paying compensation for the temporary alternate accommodation by Petitioner.
On November 21, 2015, after a detailed scrutiny, the BMC proposed redevelopment of the building since it was more than 375 meters away from the Naval Establishment and also there were several buildings taller than four floors and there was no reference about the NOC from the Navy.
Finally, on February 4, 2016, the BMC issued Intimation of Disapproval (IOD) for construction of four Wings with basement, stilt and nine upper floors and a top elevation of 32.55 meters. In December that year, the BMC issued demolition notice to the buildings since they were dilapidated.
In August 2017, the BMC granted CC up to plinth level. However, there was no condition to obtain NOC from the Naval authorities. In September that year, the BMC asked the society to get NOC before it would be issued a full CC.
The Naval authorities refused to grant NOC for the project on September 4, 2018. Hence, they approached the HC.
Additional Solicitor General (ASG) Anil Singh opposed the petition stating that the Material Organization, Mumbai, situated at Ghatkopar is a sensitive and vital unit of the Indian Navy. He contended that before granting NOC, the 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.
Dismissing the petition, the noted that “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 threat and would not be feasible”.
After going through a report submitted by ASG in a sealed cover regarding the threat perception, the court noted in its 61-page judgment: “… 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.”
This Court said it 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 them in view of the notices issued by the respondents. The said issue is kept open.
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