MUNNA @ RAMESH YADAV v. UNION OF INDIA

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measuring 2.684 hectares before the revenue authority i.e. Sub Divisional Officer, Nowgong and in turn, the said authority vide order dated 18.04.2016 had diverted the land. However, the Sub Divisional Officer, vide order dated 22.05.2015 (Annexure-P/7) had also granted colonizers license in favour of petitioner No.17 for developing a colony. As per the petitioners, on the application filed by petitioner No.17, the Chief Executive Officer, Nagar Palika Parishad, Nowgong, District Chhatarpur and the Sub Divisional Officer, National Highways Authority vide letters dated 02.12.2015 (Annexure-P/8) and 29.02.2015 (Annexure-P/9) respectively had issued no objection certificate in his favour. Thereafter, the Joint Director, Town and Country Planning, Chhatarpur vide order dated 11.12.2015 had approved the layout plan and ultimately, the Sub Divisional Officer, Nowgong, District Chhatarpur vide order dated 19.09.2016 had permitted petitioner No.17 to make the development of the colony.

(3.3) As per the petitioners, in pursuance to No Objection Certificate (NOC) and permission for raising construction issued by various authorities, petitioner No.17 had started the construction work over the land in question, but the respondents have put two notice boards there mentioning therein that any kind of construction that too within 500 meters from the outer walls of the Army Land/Establishment is strictly prohibited as per the provisions of Works of Defence Act, 1903 (in short the 'Act, 1903').

(3.4) Thereafter, on an application preferred under the Right to Information Act, it has been apprised by the Public Information Officer/Chief Municipal Officer, Nagar Palika Parishad Nowgong to petitioner No.18 vide letter dated 02.03.2016 (Annexure-P/12) that no

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notification under Section 3 of the Act, 1903 has been published with regard to land in question. Thereafter, on an application filed under the Right to Information Act by the petitioners, the Public Information Officer/Chief Municipal Officer, Nagar Palika Parishad, Nowgong had provided them the information vide letter dated 02.03.2016 (Annexure- P/14) with regard to various Government buildings and private buildings situate within the 500 meters from the outer walls of Army Land/Establishment over Khasra Nos.2121, 2127, 2126, 2128, 2130, 2132, 2358 and 2359/1.

(3.5) The petitioners are challenging the notice boards put by the respondents mainly on the ground that without there being any declaration in the official gazette as is required under Section 3(2) of the Act, 1903, they cannot be restrained from raising any construction over the land in question.

4. The respondents have filed reply to the petition wherein they have objected the construction being raised by the petitioners because of security threat. It is submitted by the respondents that the construction, if any, is raised within 500 meters from the outer walls of the Army Land/Establishment, then there is every possibility of terrorist attack as the terrorist can take shelter in the said construction. It is also submitted by the respondents that under the provisions of the Act, 1903, the limit is prescribed under which the construction is prohibited. According to the respondents, as per the categorization of defence land made, Nowgong falls within 'C' category and, therefore, local residents were requested to raise construction beyond the area of 500 meters from the outer walls of the Army Land/Establishment. However, as per the reply, the respondents are under the process for issuing proper notification under Section 3 of the

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Act, 1903 so as to make the area of 500 meters from the outer walls of the Army Land/Establishment restricted zone and it is at the final stage. It is also stated in the reply that if colony is developed and covered with boundary walls then that can provide protection to the terrorist or to anti- national activists and as such, in the reply, the security threat has been shown the sole purpose for not issuing NOC to raise construction in the restricted area. The respondents have also filed a letter dated 18.05.2011 issued in consonance with the Government of India, Ministry of Defence framing guidelines for issuing NOC for building construction whereby taking into account the security of Military Establishment, 500 meters radius from the outer walls of the Army Land/Establishment is kept construction free. The respondents have also relied upon a letter dated 09.01.2016 whereby certain restrictions have been imposed by the Lieutenant Colonel instructing the local administration of Nowgong for stopping all unauthorized constructions which are in the vicinity of the military establishment and since for Nowgong Airfield, within the range of 500 meters, no construction is permissible, whereas the respondents are saying that the construction which is likely to be raised by the petitioners is within the said range, therefore, they are not issuing NOC in favour of the petitioners for raising any construction.

5. In pursuance to the reply filed by the respondents, the petitioners have also filed rejoinder stating therein that the stand taken by the respondents in their reply is contrary to law. It is stated in the rejoinder that the respondents have already given the land to the State Bank of India for establishing Gramin Prashikshan Kendra. It is also stated in the rejoinder that there are 40 individuals who have made constructions within 500 meters of the last boundary of the Army Land/Establishment. It is

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further stated by the petitioners that the stand taken by the respondents taking shelter of their security is absolutely unjustified for the reason that number of colonies have already been constructed within 500 meters of Army Land/Establishment over which no action is being taken by the respondents and as such, they should also be allowed to raise their construction because the restriction can be imposed only under Section 3 of the Act, 1903, but since there is no notification issued under the aforesaid section, therefore, the restriction as has been imposed by the respondents is illegal. In the rejoinder, the petitioners have also denied the existence of any airstrip and stated that permission has already been granted to number of persons to enter into their area meaning thereby there is no restriction for even entering within 500 meters of the said area. According to the petitioners, the action of the respondents is purely arbitrary and illegal.

6. Shri Ghildiyal, learned Senior Counsel has submitted that the action of the respondents is purely illegal and contrary to the circular issued on 21.10.2016 (Document-A) whereby reducing the distance to 10 meters from the outer walls of the Army Land/Establishment, it has been specified that any type of construction within the said limit is prohibited. According to him, the circular also contains a list of places where it will be applicable and any construction activity within the radius of 10 meters from the outer walls of such Defence Establishment shall be prohibited. As per the list annexed with the circular, out of 193 stations, Nowgong finds place at serial No.25. However, as per the circular, if any construction is required within the said limit, then No Objection Certificate (NOC) from the local Military Authority would be required. Learned Senior Counsel has submitted that the notice boards put by the respondents over the land

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in question are contrary to the circular dated 21.10.2016 for the reason that in the said circular any construction activity within 10 meters from the outer walls of the Defence Establishment will require prior NOC, but the land in question is beyond that range, therefore, any construction over the land in question cannot be restrained. Showing the ground position of the land, learned Senior Counsel has annexed a map along with the petition to establish that the petitioners are not raising any construction within 10 meters from the outer walls of Defence Establishment.

7. Learned Senior Counsel has submitted that no notification under Section 3(2) of the Act, 1903 has ever been issued by the respondents. He has also submitted that since the circular dated 21.10.2016 is in existence, therefore, no prohibition from raising any construction over the land in question can be imposed upon the petitioners. According to him, the restriction as is imposed by the respondents is illegal and cannot be imposed upon the petitioners as their land is beyond the area which has been prohibited from raising any construction vide circular dated 21.10.2016. He has submitted that the area which has been restrained from making construction is already surrounded with various constructions and in fact, a lot of development work has already been taken place, but only the petitioners are being restrained from making construction and taking shelter of security, NOC is not being issued in their favour. However, he has submitted that the petitioners are not required to get an NOC from the respondents for the reason that they are raising construction out of the area which is defined in the circular dated 21.10.2016. In support of his contention, learned Senior Counsel has placed reliance upon various orders of different High Courts viz. Gauhati High Court passed in WP(C) No.940 of 2011 [Anurag Agarwal Vs.

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State of Assam and others]; Kerala High Court passed in WP(C) No.5288 of 2021 [Radhika Keezharapurayil Vs. The Kannur Municipal Corporation and others]; Calcutta High Court passed in W.P.A. No.13756 of 2021 [The Commandant, Ordnance Depot Vs. The Kolkata Municipal Corporation and others]; Gauhati High Court passed in WP(C) No.4153 of 2022 [Dr. N Sahewalla and Company Pvt. Ltd. Vs. The Union of India and others] and Delhi High Court passed in LPA 693/2019, C.M. No.48090/2019 [Union of India Vs. Government of NCT Delhi and others].

8. On the other hand, Smt. Gaharwar, learned counsel for the respondents has opposed the submissions advanced by learned Senior Counsel and submitted that the action of the respondents is not only in the interest of public at large but also in the interest of national security. She has submitted that any construction adjacent to Military Airfield would be a threat to vital installation. She has also submitted that an airfield requires considerable open space around to have for free flying, but if any construction is raised within 500 meters from the outer walls of the Army Land/Establishment, then it can create obstruction in the same and, therefore, in the Act, 1903 itself, the limit is prescribed to keep the area of 500 meters from the outer walls of the Army Land/Establishment free from any construction. She has submitted that so far as publication of notification as per the provisions of Section 3 of the Act, 1903 is concerned, the same is at the final stage. She has submitted that the Lieutenant Colonel vide letter dated 09.01.2016 had written a letter to the local administration of Nowgong for stopping all unauthorized constructions around the Military Establishment. She has submitted that the construction which is likely to be raised by the petitioners is within the

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500 meters from the Nowgong Airfield and, therefore, the respondents are not issuing any NOC in their favour for raising any construction. According to her, since the action of the respondents is in the larger interest of the country, therefore, it cannot be interfered with. To bolster her submissions, she has placed reliance upon the order passed by the Supreme Court reported in (2014) 8 SCC 409 [Ex-Armymen's Protection Services Private Limited Vs. Union of India and others] and also of Bombay High Court passed in W.P. No.113 of 2019 [Gorakhnath Shankar Nakhwa and others Vs. The Municipal Commissioner of Municipal Corporation of Greater Mumbai]. According to her, the petition is without any substances and is liable to be dismissed.

9. Considering the rival submissions of learned counsel for the parties and on perusal of record, the core question emerges to be adjudicated is as to whether the respondents without issuing any notification under Section 3 of the Act, 1903, can impose restriction upon the petitioners from raising any construction or not?

10. Undisputably, no notification under Section 3 of the Act, 1903 has ever been issued by the respondents imposing restriction from raising any construction. In the reply and also during the course of arguments, though it has been clarified by the respondents that the process for issuing notification under Section 3 of the Act, 1903 is under process and in fact, it is at the final stage, but that stand was taken by the respondents in their reply in the month of February, 2017 and till now no such notification has been issued. However, as per the guidelines framed from time to time, it is clear that before imposing restriction from raising any construction, a notification is required to be issued by the Central Government as per Section 3 of the Act, 1903 and in absence of any notification, if any

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guidelines are issued that should also be issued from the Central Government or from the Office of Ministry of Defence.

11. However, as per Shri Ghildiyal, the Central Government has issued the circular on 21.10.2016 (Document-A) and it has not been denied by the respondents wherein it is mentioned that within 10 meters from the outer walls of the Army Land/Establishment any construction or repair activity is restricted. According to him, in the said circular, Nowgong comes under Part A at serial No.25. Though, the respondents along with an application i.e. I.A. No.1187/2023 have filed a letter dated 06.03.2020 whereby it has been specified that the circular dated 21.10.2016 is under review, but according to counsel for the petitioners, the letter dated 06.03.2020 has no legal sanctity and in fact, the officer who had written the said letter had no authority to ignore the circular issued on 21.10.2016 which is apparently a circular issued by the Central Government, Ministry of Defence whereas the letter dated 06.03.2020 was not written by the office of Central Government or Ministry of Defence. Even otherwise, according to learned Senior Counsel, the letter dated 06.03.2020 was issued in the year 2020 and till now, there is nothing on record to indicate that the circular dated 21.10.2016 is not in force and should not be followed.

12. In the case of Anurag Agarwal (supra), the Gauhati High Court dealing with the issue with regard to requirement of notification under Section 3 of the Act, 1903 has observed as under:-

"96(8) Making of a declaration under Section 3(1) of the Defence Act, the publication of the same in the official gazette and giving public notice thereof under Section 3(2) of the said Act are mandatory requirements and is the sine-qua-non for the application of the other provisions of the Defence Act. Only after such a declaration is made, published and public notice given thereof, the restrictions

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mentioned under Section 7 of the Defence Act would come into force and not otherwise.

96(9) No declaration, publication of such declaration in the official gazette or public notice of such declaration under Section 3 of the Defence Act has been made imposing any restriction on the use and enjoyment of the land on which the building of the petitioner is being constructed. In the absence thereof, no restriction under Section 7 of the Defence Act can be imposed on the land belonging to the petitioner over which the construction of the building in question is being carried out."

Further, in the case of Radhika Keezharapurayil (supra), the Kerala High Court has observed as under:-

"7. It is not in dispute that the prohibited distance was 100 meters as per order issued by the Government of India on 18.05.2011. Subsequently the Ministry of Defence, Government of India reduced the said requirements for NOC, to 10 meters from the defence land in 193 stations. WP(C)No.5288/2021 The present argument of the 3rd respondent is that since a review is pending in respect of the Order/Circular dated 21.10.2016 before the Defence Authority, no NOC can be issued. This Court is unable to accept the said argument. As long as the order dated 21.10.2016 is not withdrawn or cancelled, the 3rd respondent will have to act on that Circular/Order. In that view of the matter, the stand taken by the 3rd respondent cannot be sustained."

However, in the case of the Commandant, Ordnance Depot

(supra), the Calcutta High Court taking note of Circular dated 21.10.2016 has observed as under:-

"72. The Ministry of Defence has issued its own guidelines with regard to the restrictions. It is the sole authority to decide such issue. Suggestions were taken from the three wings of defence and the earlier circulars were amended. The petitioner is bound by the guidelines of 2016 and cannot take a contrary view.

73. The effect of amendment by substitution is that the old provision ceases to exist and the new provision is brought into existence in its place.

74. If the intention of the Ministry of Defence was to continue with the height restrictions of three storeys upto 500 metres, in that case, like the other provision of Paragraph 1(a) of 2011 circular which have been specifically incorporated in the circular dated October 21, 2016

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under paragraphs 3 and 4 thereof, the said height restriction, would have also been incorporated. The intention of the Ministry of Defence was to substitute the entire circular dated May 18, 2011, along with the amendments and formulate new guidelines upon review of the entire issue, afresh. The object was to temper down the earlier restriction in order to enable the public to enjoy their property which were situated within close proximity of defence establishments. The guidelines of 2011 was reviewed on public demand.

75. The decision rendered in Ex-Armymen's Protection Services (Supra) cited by the UOI, on the proposition that national security is of paramount consideration and it is solely within the domain of Ministry of Defence to assess the same, is not disputed. The Court agrees with such proposition of law. The court is of the view that the Ministry of Defence, Government of India, had assessed the security issues and had incorporated certain restrictions in the policy of October 21, 2016. The LMA cannot interpret the same in its own way, by reading further restrictions of height of three storeys for all constructions upto 500 metres, especially when stricter restrictions of no construction upto 50 metres and one storey between 50 to 100 metres have been imposed, in case of defence establishments listed under Part B.

76. This court can neither impute personal knowledge nor assess the security hazards, as rightly pointed out by Mr. Singhania. The matter is also pending before the Government of India for a further review of the circular dated October 21, 2016. The decision of this Court is restricted to the question whether any illegality has been committed by the KMC, in granting a building permit to the respondent no.5 and whether the sanction has been granted in violation of the security restrictions imposed by the Government. This court does not find that the KMC has failed to abide by the security guidelines as laid down by the Ministry of Defence, Government of India, in its circular dated October 21, 2016.

77. Moreover, by an order dated October 1, 2021, the Union of India was specifically directed to answer in its affidavit and clarify the position by giving its own interpretation of its guidelines.

78. The court does not find that the UOI has supported the contentions of the petitioner, in the affidavit. The relevant portions of the affidavit are quoted below:-

"7. That in the year 2016, Guidelines were once again amended by Ministry of Defence vide their notification ID 11026/2/2011/D (lands) dated 21st October 2016, which states as under.

".....Reference Circular of even number dated 18 May 2011 read

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with amendments issued vide Circulars of even number dated 18 Mar 2015 and 17 Nov 2015 regarding grant of No Objection Certificate (NOC) from the Local Military Authorities (LMA) for construction of buildings in the vicinity of defence establishments.

2. In view of the large number of representations received from elected representatives to review the guidelines issued in 2011 as difficulties are being faced by public in constructing buildings on their own land and pending finalization of amendments to the Works of Defence Act 1903, the Government has decided to amend guidelines issued under Circular dated 18 Mar 2011 read with Circulars dated 18 Mar 2015 and 17 Nov 2015 in consultation with Services, in the following manner.

a) Security restrictions in respect of Defence establishments/installations located at 193 stations as listed in Part A of Annexure to this circular shall apply upto 10 meters from the outer wall of such Defence establishments/ installations to maintain clear line of sight for effective surveillance. Any construction or repair activity within such restricted zone of 10 meters will require prior No Objection Certificate (NOC) from the Local Military Authority (LMA)/Defence establishments."

8. That the NOC Guidelines issued vide MOD Letter No. 11026/2/2011/D(Lands) dated 21.10.2016 are presently under review."

79. The interpretation of the effect of the circular dated October 21, 2016 by the KMC and the respondent No. 5 & 6, is correct. However, the Ministry of Defence and the Government of India are always entitled to assess the security issue and further review the guidelines of 2016 and issue necessary directives. This court sitting in judicial review, cannot go beyond the contents of the policy/guidelines of

2016.

80. Admittedly, the circular dated October 21, 2016, is pending a review before the Ministry of Defence. The Works of Defence Act, 1903 is also under review. Any decision taken by the competent authority will prevail.

81. The decisions of the Kerala High Court, Bombay High Court and the Delhi High Court, do have a persuasive value. It has been stated in all the decisions that the mandatory restriction in respect of Part A is only upto 10 metres and no further restriction has been imposed by the circular dated October 21, 2016.

82. However, this Court for its own reasons, holds that the submissions of the petitioner of an existing height restriction of three

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storeys upto a distance of 500 metres from the outer wall of the defence establishments under Part A, is not a correct interpretation. The amending circular of 2016 substituted paragraphs 1(a) and 1(b) of the circular dated May 18, 2011. Height restriction has been imposed for buildings to be constructed within the vicinity of a separate class of defence stations which are mostly near the border areas and listed under Part B of the Annexure, to the guidelines of 2016. The KMC did not err in granting the building permit. Such action was not in violation of the security restrictions. The guidelines of 2016 will prevail and no injunction can be granted by this court, in respect of the construction. This is not a case where the municipal laws mandated consultation with the LMA, before grant of sanction. As such, KMC was not required to seek the observations of the LMA, on security implications under the guidelines of 2016."

In the case of Dr. N. Sahewalla (supra), the Gauhati High Court has observed as under:-

"23. As notices above, this Court has already held that for the purpsoe of issuance of 'NOC' for raising constructions within the vicinity of Defence/Army installations, the notification dated 21/10/2016 will hold the field and, therefore, all such issues would have to be considered and resolved in the light of the said notification. I find from the communication dated 04/04/2022 issued by the respondent no.3 addressed to the respondent no.5 that the construction undertaken by the petitioner is in between 80 meters to 100 meters away from the boundary wall of the defence installation, represented by the respondent nos.4 and 5. However, there is no indication as to whether the boundary wall constructed by the petitioner company did comply with the terms of the notification dated 21/10/2016. Therefore, a factual verification of the said aspect of the matter would be called for."

Furthermore, in the case of Government of NCT Delhi

(supra), the Delhi High Court has observed as under:-

"8.3 Subsequently, pursuant to receipt of further representations, guidelines dated 18th May 2011, were amended vide guidelines dated 21.10.2016, which are reproduced hereunder:

" New Delhi, dated 21st October, 2016

To The Chief of Army Staff The Chief of Air Staff

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The Chief of Naval Staff Subject: Guidelines for issue of 'No Objection Certificate (NOC) for building constructions' regarding. ********

Reference Circular of even number dated 18.05.2011 read with amendments issued vide Circulars of even number dated 18.03.2015 and 17.11.2015 regarding grant of No Objection Certificate (NOC) from the Local Military Authorities (LMA) for construction of buildings in the vicinity of defence establishments.

2. In view of the large number of representations received from elected representatives to review the guidelines issued in 2011 as difficulties are being faced by public in constructing buildings on their own land and pending finalization of amendments to the Works of Defence Act. 1903, the

Government has decided to amend guidelines issued under Circular dated 18.05.2011 read with Circulars dated 18.03.2015 and 17.11.2015 in consultation with Services, in the following manner:-

a) Security restrictions in respect of Defence establishments / installations located at 193 stations as listed in Part A of Annexure to this circular shall apply upto 10 meters from the outer wall of such Defence establishments / installations to maintain clear line of sight for effective surveillance. Any construction or repair activity within such restricted zone of 10 meters will require prior No Objection Certificate (NoC) from the Local Military Authority (LMA) / Defence establishments.

b) Security restrictions in respect of Defence establishments / installations located at 149 stations as listed in Part B of Annexure to this circular shall apply upto 100 meters from the outer wall of such Defence establishments / installations to maintain clear line of sight for effective surveillance. Any construction or repair activity shall not be permitted within 50 meters. Further, a height restriction of 03 meters (one Storey) shall be applicable for the distance from 50 meters to 100 meters. Any construction or repair activity within such restricted zone between 50 to 100 meters will require prior No Objection Certificate (NoC) from the Local Military Authority (LMA) / Defence establishments.

3. It is further provided that where local municipal laws require consultation or approval or NoC from the LMA / Station Commander before a building plan is approved,

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compliance to such statutory requirements shall continue to be applicable.

4. The procedure for issuance of NOC shall be the same as contained in Circular dated 18.05.2011."

9.0 From the careful reading of the above guidelines, it is evident that Clause (b) of guidelines dated 18.05.2011 stipulated that any construction coming up within 100 meters (for multi-storey building of more than 04 storeyes, the distance shall be 500 mtrs) required NOC from the Station Commander. Meaning thereby, that any multi-storey building exceeding 04 storeyes coming up within the distance of 500 meters of a DE, would require NOC from the Station Commander.

9.1 However, Clause 2(a) of subsequent guidelines dated 21.10.2016 (whereby the earlier guidelines dated 11th May 2011 were amended) required that as far as defence establishment/installations located at 193 stations, as listed in Part A of the Annexure to the said circular, (which includes Ordnance Depot, Shakur Basti as involved in the instant case) are concerned, for any construction or repair activity within 10 meters, prior NOC from the LMA/DE would be required. No restriction as to height of the building under construction was stipulated in this Clause. Whereas, with respect to any construction in the vicinity/within distance as stipulated in Clause 2(b) of defence establishments as appearing in Part B, a height restriction was stipulated. The site, on which the proposed hospital by the respondent no. 4 is under construction, is near defence establishment which is covered in Part A of the Annexure to the 2016 circular and is therefore, governed by Clause 2 (a).

9.2 It is the appellant"s contention that the height restriction already stipulated in earlier guidelines dated 18.05.2011 would have to be read in this regard pleading that the said guidelines were still in vogue; and that 2016 guidelines were not intended to supersede 2011 guidelines. He also argued that both, 2011 guidelines and 2016 guidelines have to be read together and harmoniously keeping in mind the objective thereof i.e. the safety and security of military establishments in close vicinity of high rise buildings.

9.3 In this respect, suffice it to state that plain reading of guidelines dated 21.10.2016 show that the same unambiguously mention that pursuant to large number of representations received from the elected representatives conveying the difficulties faced by the public in construction of buildings on their own lands, review of the guidelines dated 18.05.2011 was undertaken. And the Government decided to amend the guidelines issued vide guidelines dated 18th May 2011, 18^thMarch 2015 and 17th November 2015. Let us again refer to Clause 2 (a) of the said guidelines dated 21.10.2016 at the cost of

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repetition which reads as under :

"a) Security restrictions in respect of Defence establishments / installations located at 193 stations as listed in Part A of Annexure to this circular shall apply upto 10 meters from the outer wall of such Defence establishments / installations to maintain clear line of sight for effective surveillance. Any construction or repair activity within such restricted zone of 10 meters will require prior No Objection Certificate (NoC) from the Local Military Authority (LMA) / Defence establishments."

9.3.1 It is evident that no height restriction was imposed qua buildings coming up near defence establishments specified in Annexure A. Whereas, restriction of height was imposed with respect to construction coming up in the vicinity of certain installations/defence establishments specified in Annexure-B. Restriction of height was prescribed with respect to certain buildings (in Annexure B) and not with respect to others (in Annexure A). Thus, there is hardly any force in the argument of Ld. counsel for the appellant that restriction as to height as per 2011 guidelines has to be read even in respect of buildings falling in Clause 2(a) of 2016 circular. Rather, from the reading of Clause 2 (a), it is evident that the Government in its wisdom and after considering various representations and taking into account the security concerns, etc., did not contemplate any prior NOC from LMA/DE with respect to any construction/repair activity beyond 10 meters of DE/installations located at 193 stations as listed in Part A of Annexure to the said circular. As already noted that the DE, the Ordnance Depot, Shakur Basti (as involved in the present case) is listed at Serial No. 144 in Part A of the Annexure to the 2016 Circular. Thus, the construction activity beyond 10 meters of the said defence establishment is permissible, without any height restriction.

10.0 Ld. counsel for respondent no. 4 also referred to order dated 28.11.2018 of Hon"ble Supreme Court in Civil Appeal No. 4746/2017, titled as Saraf Infra Projects Ltd. vs. The State of West Bengal & Ors., relevant portion of which is reads as under :

"The present I.A. is filed in view of certain recent Guidelines that have been issued by the Central Government, in particular, Guidelines dated 21.10.2016, in which it is stated that so long as the construction is beyond 10 meters of the outer wall of a military compound, there would be no objection by the military authorities to such construction coming up in accordance with law.

Ld. counsel for the petitioner has shown us a recent circular issued by the Kolkata Municipal Corporation dated 02.01.2017 in which it has been directed by all concerned to follow the

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guidelines dated 21.10.2016 issued by the Central Government. In this view of the matter and in view of the fact that the appellant alleges that their construction is beyond 10 meters of the outer wall of the military compound concerned, we allow this I.A. and direct the Respondent No.3 to issue an Occupation certificate, as prayed for, in accordance with law."

10.1 In its counter affidavit dated 07.12.2019 to the present appeal, in para 4 of Preliminary Objections, the respondent no. 4 has stated that in the above case 11 storeyed building of Hotel Radisson Blue was constructed at a distance of more than 10 meters from the boundary wall of military establishment.

10.2 As per the above judgment, considering that the construction was beyond 10 meters of the defence establishment, though stated to be 11 storeyed tall, the Occupation Certificate was directed to be issued by the Apex Court.

11.0 Ld. counsel for the respondent no. 4 also submitted that even otherwise, the Ordnance Deport, Shakur Basti is located in thickly populated area of Delhi; and there are number of multi-storeyed buildings already existing in its front side, namely Bhagwan Mahavir Hospital (Government) with Staff Residence, which is of 35 meters height; Keshav Mahavidyalaya in front of Ordnance Depot, Office of Deputy Commissioner of Police, a Petrol Pump, Vardhman Shopping Complex, Telephone Exchange, Magistic Mall, etc. No objection was ever raised by the appellant at the time of construction of these buildings. Ld. Counsel further argued that even 10 storeyed hotel has already come up adjacent to the wall of the Ordnance Depot, with respect to which even Completion Certificate has been issued by the DDA. These facts are not disputed. Ld. counsel for the respondent no. 4 argued that in view of these facts, apprehension expressed by the appellant regarding security threat is absolutely unfounded.

11.1 Though, Ld. counsel for the appellant argued that the objection was raised by the Commandant with respect to the construction of the aforesaid hotel, the fact remains that such a hotel has come up in the vicinity of Ordnance Depot, Shakur Basti and even the completion certificate has been issued to the hotel by the DDA.

12.0 It would not be out of place to mention here that the Ld. Counsel for the respondent no. 4"s submission that the defence establishment in question i.e., Ordnance Depot, Shakur Basti has been decided to be closed down by the Government drawing attention of this court to a newspaper clipping (Annexure R1 to the Counter Affidavit dated 03.04.2018), was not contested. This submission also finds mention in the impugned judgment, wherein it is recorded that the Ld. counsel for the appellant herein had conceded that in principle decision has

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been taken to close down some depots including the Ordnance Depot, Shakur Basti. Though it was further stated that the said decision was yet to be finalized.

13.0 Be that as it may. Admittedly, the distance between the boundary wall of the Ordnance Depot, Shakur Basti and the hospital Site is nearly 47.06 meters. In view of the above facts and circumstances and observations made in preceding paras, in terms of Clause (a) of Para 2 of Guidelines dated 21.10.2016, prior NOC from the Local Military Authority/defence establishments, for construction of building by the respondent no. 4 herein, which is beyond 10 meters, was not required."

13. So far as the case of Ex-Armymen's Protection Services Private Limited (supra) on which learned counsel for the respondents has placed reliance is concerned, the said case is not applicable in the present case for the reason that in the said case, the Supreme Court has observed as to whether natural justice is required to be followed in each and every occasion or not and ultimately, it has been observed by the Supreme Court that when the question of nation's security is involved, then the principle of natural justice is not required to be followed. Since, in the case at hand, the issue with regard to following the principle of natural justice is not involved, therefore, the case relied by learned counsel for the respondents has no application in the present case.

14. Insofar as the case of Gorakhnath Shankar Nakhawa

(supra) is concerned, in the said case the Bombay High Court has observed as under:-

"113. In our view, there is no substance in the submission of the learned senior counsel for the petitioners that the circulars issued by the Central Government are in the nature of executive instructions or are in violation of Article 19(1)(g) or Article 19(6) of the Constitution of India. The petitioners have placed reliance on Articles 73 and 162 of the Constitution of India in support of the submission that the circulars are in the nature of executive instruction. In our view, the guidelines issued by the Central Government are to guide the Defence establishment to deal with the issue of NOC when approached by the Planning Authority. There is no violation of

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fundamental rights of the petitioners."

15. Undisputably, Sections 3 and 7 of the Act, 1903 deal with the restrictions vis-a-viz the powers vested with the respondents to make declaration about the restrictions which can be imposed. In the present case, admittedly, no notification under Sections 3 and 7 of the Act, 1903 was ever issued putting any restriction from raising construction by the private persons over the land situated near Army Land/Establishment. However, the guidelines issued from time to time have binding effect because in absence of notification, those guidelines hold the field. From the record and documents submitted by the parties, it is clear that Government of India on 18.05.2011 had issued the guidelines whereby the area within 100 meters radius from the outer walls from the Army Land/Establishment was declared to be kept construction free, but subsequently, the Ministry of Defence, Government of India vide Circular dated 21.10.2016 had reduced the said distance from 100 meters to 10 meters and that circular was neither cancelled nor withdrawn by the respondents. As per the petitioners, since the circular dated 21.10.2016 still holds the field, therefore, the respondents cannot act beyond the said circular. However, in the judgments on which, learned counsel for the petitioners has placed reliance, various High Courts have observed that since the circular dated 21.10.2016 has not been modified or cancelled and it still holds the field, therefore, the Court sitting in judicial review cannot go beyond the contents of circular dated 21.10.2016. It has also observed by the High Courts that the distance of prohibited area provided in circular dated 21.10.2016 has to be followed and no construction in the said area can be raised. The land in question of Nowgong is in the list of areas annexed with the circular dated 21.10.2016 which prohibits the area of 10 meters radius from the outer walls of the Army Land/Establishment to be

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kept free from any construction. However, learned counsel for the respondents has tried to convince this Court by showing the letters of various authorities that the circular dated 21.10.2016 is under review. Be that as it may, but till date neither the said circular has been cancelled nor withdrawn and in fact, various High Courts relying upon the said circular have observed that it has binding effect and that has to be followed. Although, the observation made by various High Courts have no binding effect over this Court, but they carry persuasive value and as such, I do not find myself to take a different view for any special reason because Sections 3 and 7 of the Act, 1903, deal with the restrictions imposed by way of declaration made by the respondents and in absence of any such declaration under the respective provisions restraining a person from raising construction without there being any authority is not proper. In the present case, the petitioners have consistently argued that in the surrounding area of their land, various constructions have already been raised and merely because the respondents are not issuing NOC to them, they are unable to raise construction whereas the respondents have no authority to do so. However, it is assured by the petitioners that they will abide by the restrictions as contained in circular dated 21.10.2016 and, therefore, the respondents may be directed to issue NOC in their favour so as to enable them to raise construction beyond the said limited i.e. 10 meters from the outers walls of Army Land/Establishment.

16. Thus, the question formulated above for adjudication is answered accordingly.

17. However, security should be the prime consideration and everybody has to take care of the same and in fact, the national security cannot be compromised in any manner, but at the same time, we cannot

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ignore this fact that respondents and especially, the Ministry of Defence has considered this issue better than the other person and if they have not issued any notification till date and circular dated 21.10.2016 still prevails then it can be apprehended that the prohibited area as has been determined till now must have been determined after considering the security issue, therefore, in view of the observations made by various High Courts, I am allowing this petition directing the respondents not to restrict the petitioners from raising construction over the land in question and if any application is preferred by the petitioners seeking NOC before the respondents, then the NOC should be issued in their favour within a period of 60 days from the date of receipt of such application.

18. With the aforesaid, the petition filed by the petitioners stands

allowed.

(SANJAY DWIVEDI)

JUDGE

Devashish