Case Note & Summary
The petitioners, a co-operative housing society and a developer, filed a writ petition under Article 226 before the Bombay High Court challenging a stop-work notice issued by the Municipal Corporation of Greater Mumbai (MCGM) and seeking directions to process planning permission without insisting on a No Objection Certificate (NOC) from the Union of India through its naval authorities. The dispute arose from a redevelopment project where the society and developer entered into a development agreement in 2014 to demolish an existing building and construct a new one. The property is located approximately 200 metres from a Naval Civil Housing Colony. In 2015, MCGM sanctioned the building plans and issued an Intimation of Disapproval (IOD) without any condition requiring prior approval or NOC from naval authorities. Subsequently, a Commencement Certificate was granted on 16 November 2016, also without such a condition. Construction progressed to the 7th floor by September 2016. On 14 November 2017, MCGM issued a stop-work notice, relying on a letter dated 27 October 2017 from the Western Naval Command refusing an NOC for the construction. The petitioners made representations, but the naval authorities rejected the request on 9 March 2018, halting construction. The petitioners contended that the stop-work notice was arbitrary, ultra vires, and without jurisdiction, as it effectively revoked planning permission contrary to Section 51 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). They argued that no condition for NOC was imposed when permission was granted, and such a condition could not be enforced later, especially after substantial construction. They further submitted that the requirement of an NOC was not prescribed by any law but was based on administrative circulars issued by the Ministry of Defence. They placed reliance on the Ministry of Defence circular dated 21 October 2016, which restricted NOC requirements to specific listed defence establishments, and argued that their property in Kanjurmarg was not listed. They also relied on a subsequent clarification that the circular did not apply to the Navy. The petitioners also invoked the precedent of Mayfair Housing Society Pvt. Ltd. v. MCGM, where the Bombay High Court held that MCGM cannot impose belated conditions after granting IOD. They contended that the guidelines issued by the State Government under Section 154 of the MRTP Act were binding on MCGM, and the State's circular of 7 November 2016 adopted the 21 October 2016 defence circular, thus the insistence on an NOC was illegal. The respondents' arguments are not detailed in the available text. The judgment text provided is incomplete and does not contain the court's analysis, reasoning, or final decision.
Issue of Consideration
Whether the Municipal Corporation of Greater Mumbai could issue a stop-work notice and require a No Objection Certificate from the Naval authorities after having granted planning permission and commencement certificate without any such condition; whether the refusal of NOC and the circulars imposing such requirement were applicable and lawful.
Law Points
- no condition of NOC at planning permission stage
- stop-work notice amounts to revocation under Section 51 MRTP Act
- circulars supersede earlier ones
- circular of 21.10.2016 is exhaustive
- Navy not covered by circular
- Mayfair Housing Society precedent
- arbitrary refusal of NOC
- substantial construction completed
- guidelines issued under Section 154 MRTP Act binding on planning authority
Case Details
2019 LawText (BOM) (02) 30
Writ Petition No.3013 of 2018
Ranjit More, Bharati H. Dangre
Dr. Milind Sathe, Saket Mone, Bhushan Deshmukh, Vishesh Karla, Subit Chakrabarti, V.N.Tendulkar, Ms. Neha Joshi for petitioners; Mrs. P.H. Kantharia, Ms. Vandana Mahadik for MCGM; Mr. Anil C. Singh, Mr. Aditya Thakkar, Parag Vyas for Union of India; Mr. Kunal Bhange for State
Tirandaz Subha Niketan Co-Operative Housing Society Ltd., M/s. Heritage Lifestyles & Developers, Mr. Girish Gangwani
Union of India Through Ministry of Defence, Chief of Naval Staff, Flag Officer Commanding in Chief Western Naval Command, State of Maharashtra Through Secretary Urban Development, Municipal Corporation of Greater Mumbai, Municipal Commissioner of MCGM, Executive Engineer Building Proposal II MCGM
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Nature of Litigation
Writ petition under Article 226 of the Constitution seeking to quash a stop-work notice issued by MCGM and to direct MCGM to process planning permission without insisting on an NOC from the naval authorities.
Remedy Sought
Quashing of letter dated 14.11.2017; direction to MCGM to process and sanction all planning permissions without insisting on NOC from respondents 1 to 3; calling for records of letters refusing NOC.
Filing Reason
MCGM issued stop-work notice based on refusal of NOC by Western Naval Command, halting construction after substantial completion.
Previous Decisions
Planning permission was granted by MCGM on 08.05.2015 (IOD) and Commencement Certificate on 16.11.2016 without any condition of NOC from naval authorities. After substantial construction up to 7th floor, MCGM issued stop-work notice on 14.11.2017 based on naval refusal dated 27.10.2017. Petitioners' representation was rejected on 09.03.2018.
Issues
Whether the MCGM could impose a requirement of NOC from naval authorities after granting planning permission without such condition and after substantial construction.
Whether the stop-work notice amounts to revocation of planning permission under Section 51 of the MRTP Act.
Whether the circular dated 21.10.2016 issued by the Ministry of Defence applies to the petitioners' property and whether it supersedes all earlier circulars.
Whether the Navy is exempt from the requirement of NOC as per subsequent clarifications.
Whether the State Government's guidelines under Section 154 of the MRTP Act are binding on MCGM and require adherence to the 21.10.2016 circular.
Whether the refusal of NOC was arbitrary and capricious given the existence of other taller buildings in the vicinity.
Submissions/Arguments
Petitioners argued that the stop-work notice was ultra vires and without jurisdiction, as no statutory requirement for NOC exists and the condition was not imposed at the time of grant of permission.
They contended that the circular dated 21.10.2016 replaced all earlier circulars and only applied to 193 stations in Part A and 149 stations in Part B, and Kanjurmarg was not listed, so no NOC was required.
They relied on a clarification that the circular did not apply to the Navy, making the Navy's NOC unnecessary.
They submitted that the State Government's circular dated 07.11.2016 adopted the 21.10.2016 defence circular and was binding on MCGM under Section 154 of the MRTP Act.
They invoked the order in Mayfair Housing Society Pvt. Ltd. V/s. MCGM, holding that belated imposition of NOC condition after IOD is impermissible.
They argued that the refusal of NOC was arbitrary as several buildings of greater height existed between the site and the naval colony.
Judgment Excerpts
The writ jurisdiction of this Court under Article 226 is invoked by the petitioners seeking a writ for quashing and setting aside of the letter dated 14.11.2017 issued by the Executive Engineer of Municipal Corporation of the Greater Mumbai directing the petitioners to stop work at the subject property.
The IOD stipulated several conditions but the condition of seeking prior approval/NOC of the Naval Establishment was not a part of the stipulation.
The petitioners assailed the action of the MCGM based on the refusal of grant of NOC by the respondent Naval Authority and the action on part of the MCGM is sought to be challenged on the ground that it is arbitrary, ultra vires, without jurisdiction and in contrast to the express provisions of the MRTP Act, 1966.
Dr.Sathe would submit that the subject property which is located in Kanjurmarg is not listed as a Defence Establishment in the circular dated 21.10.2016 and according to him, the restrictions which are contained in the earlier circulars are done away by the circular of 21.10.2016.
Dr.Sathe has placed reliance on the order passed by this Court in case Mayfair Housing Society Pvt. Ltd. V/s. MCGM in Writ Petition No.369 of 2016 where the Division Bench of this Court clearly held that it was not permissible for the MCGM to impose belated condition after it has granted IOD and it cannot issue a notice for stop work for want of NOC.
Procedural History
The petitioners, a housing society and developer, applied for planning permission in 2015. MCGM issued IOD on 08.05.2015 and Commencement Certificate on 16.11.2016, both without requiring NOC from naval authorities. Construction reached 7th floor by September 2016. MCGM issued stop-work notice on 14.11.2017 based on Western Naval Command letter dated 27.10.2017 refusing NOC. Petitioners' representation was rejected on 09.03.2018. Writ petition filed challenging the stop-work notice and seeking mandamus against MCGM.
Acts & Sections
- Works of Defence Act, 1903: Not specifically mentioned
- Maharashtra Regional and Town Planning Act, 1966: Section 51, Section 154
- Development Control Regulations for Greater Mumbai, 1991: Not specifically mentioned
