Section 46 of MRTP Act – NOC of Defence Establishment for development within its vicinity – Validity of Circulars – Works of Defence Act 1903.
Section 46 of the MRTP Act & DC Rules – Development in vicinity of INS Trata – Circulars requiring NOC of Defence Establishment ultra vires the Works of Defence Act 1903
“Summit” Building of 12 meters height consisting of ground and two storeys situated at Worli, Mumbai was constructed in 1938 or 1940. In its vicinity, INS Trata Naval establishment was set up in 1991-92.
The petitioner had applied for permission under Section 44 of the MRTP Act, 1966, in 2012, initially for redevelopment of the said plot. Since the said land is in the vicinity of Navy defence establishment, the application for NOC was rejected as per the Notification dated 18.5.2011.
The plan was changed, inasmuch as, instead of multi storey building it was proposed to re-construct the original building with the same height by fresh application dated 6.9.2019 to the respondent no.1 Corporation.
By the letter dated 10.6.2019, the NOC of respondent no.4 was sought.
There was litigation between the parties.
However, by the letter dated 9.3.2021 and relying on the Circulars dated 18.5.2011, 18.3.2015 and 17.11.2015, the respondent nos.3 to 5 rejected the application of the petitioner no.1.
New guidelines were issued on 23.12.2022.
HELD that the guidelines requiring NOC for development near defence establish are not valid since the procedure in Sections 3 and 7 of the Works of Defence Act, 1903, was not followed. Section 46 of the MRTP permits to consider such relevant additional material or fact for granting or refusing building permission. It would be illogical to say that NOC of respondent nos.3 to 6 would be necessary when same height building is proposed on the existing old building. DCPR 2034 applicable to the present case do not contain any provision for NOC of Defence Establishment.
Judgment dated 27.9.2023 in Writ Petition No.2724 of 2021 – Dolby Builders Private Ltd and another Vs. The Municipal Corporation of Greater Mumbai and others.
