Height curbs near defence bases may be imposed again

The height restrictions on constructions around defence installations are likely to be back in force after the Supreme Court last week modified a Bombay high court order which had quashed all four circulars issued by the defence ministry in this regard.

An apex court bench comprising Justices BV Nagarathna and Augustine George Masih in its order dated January 22 directed naval authorities to issue a no objection certificate (NOC) within one month to Dolby Builders Private Limited.

The firm had approached the HC after it was denied an NOC for the redevelopment of a ground plus two-storey bungalow of 12-metre height near INS Trata, a missile battery base of the Indian Navy, in Worli.

The high court, in its order on September 27, 2023, quashed and set aside four defence circulars dated May 18, 2011, March 18, 2015, November 17, 2015, and December 23, 2022, as well as a March 9, 2021, letter by the flag officer, commanding-in-chief. The HC ruled that the right to property could not be curtailed by such executive fiats but only by an act of parliament or a state legislature. The HC then directed the Municipal Corporation of Greater Mumbai (MCGM) to process the application moved by Dolby Builders for redevelopment without any NOC from the navy.

The naval authorities filed an appeal in the top court challenging the HC order.

During the hearing before the SC, additional solicitor general Vikramjit Banerjee, appearing for the navy, said though Dolby Builders had sought directions from the high court specific to their redevelopment proposal, the high court direction was in rem (imposing a general liability).

The HC’s direction should be set aside as it “would seriously affect the security and defence”, Banerjee said.

Senior counsel Mukult Rohatgi, representing Dolby Builders, contended that the G+2 building had been in existence since mid-1940s and the naval authorities had never raised any security concerns over the building.

It is only now, when a new building of a similar height and dimension which is sought to be built that the appellants have sought to raise the issues of security, and defence etc. and there was no reason whatsoever for declining the grant of NOC, he said.

Rohatgi also said if the naval authorities would comply with the NOC before the high court, his clients may not press their pleas regarding the quashing of the circulars and stick to the “factual matrix” that had been presented to the court.

The Supreme Court then directed the navy to issue an NOC within one month from the order. “On such compliance being made, it is recorded that the respondent writ petitioners before the high court shall not press their pleas with regard to the vires of the aforesaid circulars and the same shall stand withdrawn,” the bench said in its six-page order.

However, the court allowed all affected parties to independently continue their challenge to the defence circulars. “It is further needless to observe that if any other party has assailed the vires of the said circulars before the high court or this court, the said parties are at liberty to advance all arguments on the vires of the said circulars in accordance with law.”

With the December 23, 2022, circular, the defence ministry had relaxed restrictions on constructions within 500 metres of defence establishments imposed with its first circular of 2011, but said constructions falling within 50 metres of highly sensitive installations would continue to require an NOC from the local military authorities.

The circular had mentioned a list of such sensitive installations which included eight army establishments in Maharashtra, and naval installations in Colaba, Malad, Ghatkopar, Mankhurd, Powai, Worli, Elephant Island in Raigad district, Kalyan, Ambernath, and Pune. The list also included three coast guard installations in Worli, Raigad, and Palghar, and two air force installations in Madh Island and Thane.

However, on February 23, 2023, a two-line directive from Shamistha Maitra, director (lands) at ministry of defence, abruptly stayed the relaxations given by the 2022 circular. “It has been decided that the MoD (ministry of defence) letter under reference shall be kept in abeyance till further orders,” said the letter citing no reasons for the stay.

After the HC’s September 27 order, the state urban development department sought legal opinion from the Maharashtra advocate general who opined: “Thus, the circular dated May 18, 2011, March 18, 2015, November 17, 2016, and December 23, 2022, were quashed and set aside by the court. Therefore, neither the 2011 guidelines nor the 2016 guidelines can be applied today.”

Following this, in November 2023, the MCGM invited fresh redevelopment proposals for plots within a 500-metre radius of naval establishments irrespective of whether NOC had already been rejected by naval authorities.