Lok Holding and Construction Ltd. and Others vs Municipal Corporation of Greater Mumbai and Others

At the request of the learned Counsel appearing for petitioners, the name of respondent No. 5 is permitted to be deleted. Rule, returnable forthwith. Heard finally by consent of the parties

The petitioners, by this petition, make a grievance against the order dated 16th March 2011 passed by the Executive Engineer of the Bombay Municipal Corporation. By that order, the authority has cancelled the IOD and CC which were granted in favour of the petitioners for construction of building on property bearing CTS Nos. 153, 153/1 to 3 of Village Malad (East), ''P'' North Ward. It is common ground that IOD and CC were granted in favour of the petitioners after the petitioners produced before the Competent Authority a letter dated 23rd January, 2009 signed by the Administrative Officer, Central Ordnance Depot, giving no objection to the sanction of the building plans submitted by the petitioners. It appears that thereafter, it was pointed out to the Corporation that the letter dated 23rd January 2009 granting no objection is not on the record of the defence authority. On the contrary, on their record, there is a letter dated 23rd January 2009, but by that letter objection is raised to the sanction of building plans submitted by the petitioners.

We have heard learned Counsel appearing for both the sides. Perusal of the order impugned in the petition shows that the IOD and CC have been cancelled by the Corporation principally for two reasons, firstly access to the plot of the petitioners is not available and secondly an objection is raised by the defence authority for raising construction on the plot on the ground that the structure if raised will cause danger to the defence establishment. So far as the first aspect of the matter is concerned, the learned Counsel appearing for petitioners has pointed out to us that there is a decree passed in favour of the petitioners by the City Civil Court, Bombay granting access to the petitioners'' plot where construction is proposed to be made. It was urged on behalf of the respondent -Union of India that the access that is provided by the decree of the City Civil Court, Bombay is not enough according to the D.C. Regulations and other allied enactments for grant of permission to the proposed building on the plot in question. So far as the proposed construction being raised near the defence establishment is concerned, the learned Counsel appearing for petitioners pointed out to us that unless there is a Notification issued u/s 3 of the Works of Defence Act, 1903, building permission cannot be refused in favour of the petitioners on the ground that there is defence establishment in the vicinity. It was pointed out to us that a Notification in relation to the defence establishment in question was actually issued by the Collector but subsequently that Notification was cancelled. Thus, it is common ground before us that there is no Notification presently in force issued u/s 3 of the Works of Defence Act 1903. On behalf of the respondents, reliance was also placed on a letter dated 4th November 2010 issued by the Government of Maharashtra to the Commissioner of Bombay Municipal Corporation directing that while sanctioning building plans in relation to the plot where defence establishment is in the vicinity, building permission should not be granted without obtaining no objection from the concerned authority. In our opinion, as there is a statutory enactment occupying the field, viz. The Works of Defence Act 1903, the Government may not have the power to issue such instructions in respect of defence establishment in relation to which there is no Notification as contemplated by the provisions of the said Act. Taking overall view of the matter, therefore, in our opinion, following order would meet the ends of justice.

The order passed by the Executive Engineer of the Bombay Municipal Corporation dated 16th March, 2011 challenged in the petition is set aside. The Executive Engineer who has passed the order at Exh.-V'' to the petition is directed to reconsider the matter. The Executive Engineer shall consider whether the access provided to the petitioners by the decree passed by the City Civil Court, Bombay is enough according to the relevant law for grant of IOD and CC to the petitioners. The respondents shall be free to take appropriate steps for getting a Notification in the present case under the Works of Defence Act, 1903 issued, if they are so advised. The respondents may submit a proposal to the Competent Authority in that regard with a copy to the petitioners within a period of four weeks from today. The Competent Authority to whom the proposal may be submitted by the respondents shall consider that proposal in accordance with the provisions of Works of Defence Act, 1903 and grant an opportunity of being heard to the petitioners and any other person who may be entitled for such hearing under the law and decide whether Notification u/s 3 of the said Act is to be issued or not. The Competent Authority shall make the order as expeditiously as possible and in any case within a period of three months from the date of receiving the proposal. It is clarified that the Competent Authority is to decide the question whether Notification is to be issued or not on the basis of material produced before that authority only and by this order we have not expressed any opinion whether such a Notification deserves to be issued or not. The Executive Engineer of the Corporation shall take his decision pursuant to this order only after expiry of the period which we have granted to the Competent Authority for deciding the question of issuing Notification under the Works of Defence Act 1903. In case Notification is issued within the aforesaid period, the Executive Engineer shall go in accordance with the said Notification. In case such a Notification is not issued, the Executive Engineer shall decide the matter in accordance with law and on the basis of material produced before him. Till the Executive Engineer makes a fresh order pursuant to this order, the petitioners shall not carry out any construction on the basis of IOD and CC which have been issued in their favour by the Corporation. Rule is made absolute accordingly with no order as to costs.

Parties to act on the copy of this order duly authenticated by the Associate/Private Secretary of this Court.

Certified copy expedited.