Hc Dismisses Defence Objection To Redevpt Of Bldg Near Ins Trata, ET RealEstate

October 5, 2023

MUMBAI: Observing that what was not a security hazard to the defence establishment earlier cannot become one on being reconstructed to the same height, the Bombay high court directed the BMC to process permissions sought for redeveloping a three-storey property near the naval missile battery base INS Trata at Worli in four months without any nod from the naval authorities.

“…it would be illogical and even absurd to say the same building with 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,” said a bench of Justices Sunil Shukre and M W Chandwani in a recent judgment.

Dolby Builders and Girish Agarwal, the founder-director of the Dainik Bhaskar group, had moved the HC as his 2019 plan to reconstruct the Worli property as his family residence was stonewalled.

The HC quashed four defence ministry circulars of 2011, 2015 and 2022, and rejected the Centre’s request to stay its judgment. The 2011 circular requires an NOC for constructing buildings, and for officers to flag off security hazards when proposed construction is within 100-500m (for multiple floors) of defence structures.

The HC accepted the “paramount importance’’ of safety of defence installations and that the opinion of defence authorities, as experts, must be accepted, but noted that the building proposed by Agarwal will have the same height as the one standing from 1938 or 1940, much before INS Trata was commissioned in 1992.

The builder and Agarwal, through senior counsel Milind Sathe and advocate Saket Mone, argued that no prior nod was required for redevelopment under the circulars and yet the BMC was insisting on a defence NOC.

The naval authorities refused an NOC. Citing a defence ministry circular, then additional solicitor general Anil Singh explained the reconstructed structure would be a security hazard as it “would have a direct line of sight to the operational infrastructure” of the naval unit.

Dubbing the rejection “arbitrary”, Sathe challenged the constitutional validity of the circulars. The HC agreed with Sathe that the comprehensive Works of Defence Act, 1903, imposes restrictions on land use in the vicinity of defence establishments and any other curbs must stem from procedures laid down under the Act.

After issuing guidelines without following the procedures, the ministry cannot take away property rights by curtailing construction of a residence in a residential area, said Sathe. The HC agreed that “mere executive fiat” can’t be issued to impose restrictions.

The HC said senior officers of the Western Naval Command tried to justify the need for an NOC by submitting a confidential note. But “we do not find any such glaring material that would cause a topsy-turvy in the security hazard perception emerging from the proposed building with same height”, it added.

  • Published On Oct 5, 2023 at 09:19 AM IST

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