Post-Adarsh circular on NOC for construction near defence set-ups does not confer prohibition rights: HC

A circular issued by the Union defence ministry post the Adarsh housing scam on the issuance of NOC for construction in the vicinity of Army establishments was only in the nature of guidelines and does not confer any right to prohibit construction or seek demolition, the Bombay High Court has ruled.

A division bench of Justices S B Shukre and M W Chandwani in its judgment of October 23 dismissed a petition filed by the ministry seeking the demolition of a commercial high-rise, Ganga Trueno’, which it claims was near the Unit of Southern Command Composite Signal Regiment at Lohegaon in Pune.

The order was made available on Thursday.

The ministry relied on a circular issued by it in May 2011 containing guidelines for the issuance of a No Objection Certificate (NOC) for building constructions near Army establishments.

The circular raised the issue of NOC for construction on land adjacent to defence establishments following the controversies generated after the Adarsh housing society scam.

The 31-storey Adarsh housing society built in the vicinity of the military station at Colaba in south Mumbai had come under the scanner for not having requisite permissions for its construction. The Defence ministry had said the plush society was a security threat as it overlooked vital installations of the Army.

The high court in its order noted that in the present case, the permission for construction of the building in Pune was granted in 2008, much before the circular was issued by the defence ministry.

The bench said the circular issued by the Ministry of Defence was in the nature of guidelines only and would not confer any right upon it to seek any prohibition on any ongoing construction and demolition of any building.

“In the present case, we have found that the circulars of the Ministry of Defence are not even in the nature of executive instructions. Rather, they fall under a category of only departmental circulars binding upon the officers of the department and not outsiders or third parties,” HC said.

The court noted that as per the circular, the Army station commander shall convey his or her objections or views about any construction to the state government agencies or municipal authorities and not to builders or private parties.

It added that the circular does not say that any NOC should be obtained by the land owner making the construction.

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The circular by itself does not impose any direct restriction upon undertaking construction of any building within the distance of 100 metres or 500 metres from the defence boundary and it only gives authority to the Commanding Officers to take objection or to take an appropriate decision, the court said.

“The circular does not give any clear guidance as to what course of action in law may be taken by the Defence Authorities when objection is taken and not accepted by the State government or local municipal authorities,” HC said.

“There is no clarity in these guidelines, if or not the Defence Authorities would get any right to stop the construction work and also seek its demolition,” it added.

The bench dismissed the petition and directed the local authority concerned to issue the occupancy certificate to the building within eight weeks.

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