Case Note & Summary
The dispute arose from a writ petition under Article 226 of the Constitution of India filed by five petitioners, including individual landowners and a limited liability partnership, against the Municipal Corporation of Greater Mumbai, Union of India, State of Maharashtra, Maharashtra Housing and Area Development Authority, Maharashtra Real Estate Regulatory Authority, and Mazgaon Dock Shipbuilders Limited. The petitioners challenged orders dated 18 April 2018 and 4 May 2018 passed by the Municipal Corporation refusing further commencement certificate for their redevelopment project and sought a mandamus to issue the certificate. They also sought a declaration that a 1987 notification under the Official Secrets Act and various Ministry of Defence guidelines were not applicable to their project.
The property in question, known as Laxmi Niwas, was a cessed building situated at CS No.220 and 221 of Mazgaon division, Mumbai. The project comprised ground plus 19 floors, with 12 floors for rehabilitation of existing tenants and the remainder for free sale. Third-party rights had been created. The petitioners obtained a No Objection Certificate from MHADA on 10 May 2013 and a Coastal Zone Management Authority NOC on 18 March 2016. The Municipal Corporation issued a commencement certificate on 4 April 2016, which was later endorsed up to plinth level and then up to the 10th floor in February 2017.
However, the Government of Maharashtra had declared the Mazagaon Dock area including 200 meters of waterfront as a prohibited place under Section 2(8)(c) and (d) of the Official Secrets Act, 1923, vide notification dated 28 July 1987. The Ministry of Defence issued guidelines in 2011, 2015, and 2016 requiring prior NOC from Local Military Authority for building constructions near defence establishments. On 9 August 2017, the Ministry of Defence stated that Mazgaon Dock Shipbuilders Limited, being a public sector undertaking, was the Local Military Authority for its premises. On 12 December 2017, Mazgaon Dock Shipbuilders Limited objected to the petitioners' project, leading the Municipal Corporation to seek an explanation and ultimately pass the impugned orders refusing further commencement certificate.
The petitioners argued that their plot was approximately 92.5 meters from the respondent's plot, that no NOC requirement existed in DCR 2034, and that the respondent's premises did not feature in the 2016 guidelines annexure. They contended that the first 12 floors were for rehabilitation and reducing height would make the project unviable. The respondents relied on security concerns and the prohibited place declaration. The High Court heard the matter finally and reserved judgment on 20 September 2022, but the available text does not include the final operative reasoning or orders.
Headnote
A) Constitutional Law - Writ Jurisdiction - Article 226 Petition for Certiorari and Mandamus - Constitution of India, Article 226 - The petitioners challenged MCGM orders dated 18 April 2018 and 4 May 2018 refusing further commencement certificate and sought mandamus for issuance plus declaration that defence guidelines do not apply. The High Court of Bombay heard the petition finally at admission stage with consent of parties (Paras 1-3).
B) Official Secrets Act - Prohibited Place Declaration - Section 2(8)(c),(d) - Official Secrets Act, 1923, Section 2(8)(c) and 2(8)(d) - The Government of Maharashtra declared Mazagaon Dock area including 200m waterfront as a prohibited place; respondent no.6 relied on this to object to construction near its premises. The court was required to examine whether this declaration imposed NOC requirements on the petitioners' project located approximately 92.5m from respondent no.6 (Paras 4,19).
C) Municipal Administration - Commencement Certificate and Redevelopment - Section 33(7) of DCR - MCGM issued commencement certificate on 4 April 2016 and endorsed it up to 10th floor by 22 February 2017, but later withheld further certificate after respondent no.6's objection on 12 December 2017. Petitioners argued project under DCR 33(7) includes 19 tenants rehabilitation on first 13 floors and reduction would render it unviable (Paras 9,13,17).
D) Defence Guidelines - Prior NOC from Local Military Authority - Ministry of Defence Guidelines dated 18 May 2011, 18 March 2015, 17 November 2015, 21 October 2016 - Guidelines imposed NOC for building constructions within 100m/500m of defence establishments; subsequent amendments exempted prior permissions and listed 193 stations; petitioners claimed respondent no.6 premises not in annexure; Ministry of Defence on 9 August 2017 stated respondent no.6 as PSU is Local Military Authority. The court had to determine applicability of these guidelines to the project (Paras 7,10,12,14,16).
Issue of Consideration
Whether the impugned MCGM orders withholding further commencement certificate were legally valid; whether the defence notification and guidelines requiring NOC from Local Military Authority applied to the petitioners' cessed building redevelopment project; and whether respondent no.6 had jurisdiction to object.
Law Points
- Writ jurisdiction under Article 226
- Prohibited place declaration under Official Secrets Act
- Prior NOC requirement for construction near defence establishments
- Commencement certificate issuance under DCR
- Applicability of administrative guidelines to redevelopment projects
Case Details
2022 LawText (BOM) (12) 60
WRIT PETITION NO.113 OF 2019 WITH INTERIM APPLICATION NO.2270 OF 2019
R.D. Dhanuka, Kamal Khata
Mr.Pravin Samdani, Senior Counsel with Mr.Sujit Lahoti, Mr.Ziayad Madon, Mr.Parth P. Shah i/b M/s.Sujit Lahoti And Associates for the Petitioners; Mr.Chinmay Acharya for the Applicant; Ms.Purnima Kantharia with Ms.Sheetal Metakari i/b Mr.Sunil Sonawane for MCGM; Mr.Anil Singh, ASG with Mr.Aditya Thakkar, Mr.Yogeshwar S. Bhate, Ms.Savita Ganoo and Mr.Pavan Patil for the Respondent No.2; Mr.Abhay L. Patki, Additional Government Pleader for the State; Ms.Sayli Apte with Ms.Shreya Shah i/b Mr.P.G. Lad for MHADA; Mr.Aseem Naphade with Ms.Shristi Shetty, Ms.Heena Shaikh and Mr.Bhavesh Wadhwani i/b M/s.M.V. Kini & Co. for the Respondent No.6
Gorakhnath Shankar Nakhwa, Rakesh Bangera, Bertram Anthony Fernandes, Nimesh Rathod, Nakhwa and Jasol Developers LLP
The Municipal Commissioner of Municipal Corporation of Greater Mumbai, Union of India through Ministry of Defence, State of Maharashtra through Ministry of Urban Development, Maharashtra Housing And Area Development Authority, Maharashtra Real Estate Regulatory Authority, Mazgaon Dock Shipbuilders Limited
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging orders dated 18 April 2018 and 4 May 2018 passed by Municipal Corporation of Greater Mumbai and seeking mandamus to issue further/final commencement certificate, along with declaration that certain defence guidelines/notification not applicable to petitioners' redevelopment project.
Remedy Sought
Petitioners sought a writ of certiorari to quash and set aside MCGM orders dated 18 April 2018 and 4 May 2018, a writ of mandamus to MCGM to issue further/final commencement certificate, and a declaration that notification dated 28 July 1987, guidelines dated 18 May 2011, 18 March 2015, 17 November 2015, 21 October 2016, letter dated 27 February 2020 and internal note dated 9 August 2017 are not applicable to their project.
Filing Reason
MCGM declined to issue further/final commencement certificate for the petitioners' redevelopment project after objections from Mazgaon Dock Shipbuilders Limited regarding proximity to a prohibited defence area and requirement of NOC from Local Military Authority.
Previous Decisions
High Court in Writ Petition No.1000 of 2012 ordered prior notice to respondent no.6 before sanctioning plans for Bomanji Dhunjibhoy property; no adjudication on objections. MCGM issued Intimation of Disapproval on 27 May 2015, commencement certificate on 4 April 2016 valid upto 3 April 2017, endorsements up to plinth and 10th floor in February 2017, but no further certificate after respondent no.6 objections in December 2017 and subsequent impugned orders.
Issues
Whether the notification dated 28 July 1987 under Official Secrets Act declaring Mazagaon Dock area as prohibited place applies to petitioner's project and requires NOC from respondent no.6.
Whether the Ministry of Defence guidelines dated 18 May 2011, 18 March 2015, 17 November 2015 and 21 October 2016 mandating NOC from Local Military Authority are applicable to petitioner's project.
Whether MCGM was justified in withholding further/final commencement certificate based on respondent no.6's objections and the alleged security restrictions.
Whether respondent no.6 is the Local Military Authority for its premises as per Ministry of Defence communication dated 9 August 2017.
Submissions/Arguments
Petitioners contended that respondent no.6 had no jurisdiction over their property; no NOC requirement exists in DCR 2034; the plot is approximately 92.5 meters from respondent no.6 plot; first 12 floors are rehabilitation component and height reduction would render project unviable; respondent no.6 premises did not feature in the 2016 guidelines annexure.
Respondent no.6 and Union of India contended that Mazagaon Dock area is a prohibited place under Official Secrets Act; security concerns prevented issuance of NOCs for redevelopment of cessed buildings in Mazgaon Division; prior NOC from Local Military Authority is mandatory; respondent no.6 as PSU is Local Military Authority.
Judgment Excerpts
By this petition filed under Article 226 of the Constitution of India, the petitioners have prayed for a writ of certiorari for quashing and setting aside the impugned orders dated 18th April, 2018 and 4th May, 2018 passed by the respondent no.1 Corporation.
On 28th July, 1987, the Government of Maharashtra issued a notification declaring the area of Mazagaon Dock Ltd. including 200 meters of water front area, as a ‘prohibited place’ under sub-clauses (c) and (d) of section 2(8) of the Official Secrets Act, 1923.
On 4th September, 2012, this Court passed an order in Writ Petition No. 1000 of 2012 in relation to the property of Bomanji Dhunjibhoy Pvt. Ltd. This Court held that prior notice to be given to the respondent no.6 before plans would be sanctioned by the Municipal Corporation to permit them to file objections.
On 12th December, 2017, the respondent no.6 addressed a letter to the respondent no.1 objecting to the petitioners’ project and forwarding certain documents in relation to the Bomanji Dhunjibhoy Project.
On 31st January, 2018, the licensed surveyor of the petitioners addressed a letter to the respondent no.1 contending that none of the papers/permissions issued so far mentions the requirement of NOC of respondent no.6.
Procedural History
On 28 July 1987, Government of Maharashtra issued notification declaring Mazagaon Dock area as prohibited place under Official Secrets Act. In 2009, respondent no.6 objected to Bomanji Dhunjibhoy project and exchanged letters. In 2011, petitioners formed LLP and Ministry of Defence issued guidelines requiring NOC for constructions near defence establishments. On 4 September 2012, High Court ordered prior notice to respondent no.6 in WP 1000/2012. On 10 May 2013, petitioners obtained NOC from MHADA. On 27 May 2015, MCGM issued Intimation of Disapproval. On 4 April 2016, MCGM issued commencement certificate, later endorsed up to 10th floor by 22 February 2017. On 9 August 2017, Ministry of Defence stated respondent no.6 is Local Military Authority. On 12 December 2017, respondent no.6 objected to project; MCGM sought explanation on 16 January 2018. Minister of Defence letters in January-February 2018 indicated NOCs could not be considered. MCGM passed impugned orders on 18 April 2018 and 4 May 2018 refusing further commencement certificate. Petitioners filed Writ Petition No.113 of 2019 with Interim Application No.2270 of 2019 for intervention. High Court heard matter finally and reserved on 20 September 2022, pronounced judgment on 9 December 2022.
Acts & Sections
- Constitution of India: Article 226
- Official Secrets Act, 1923: Section 2(8)(c), Section 2(8)(d)
- Development Control Regulations for Greater Mumbai: Section 33(7)
