MUMBAI: In a landmark ruling, the Bombay high court held that a century-old law prohibits construction within 500 yards (457.2 metres) of defence establishments in the state and dismissed a petition by the developer of a slum rehabilitation project near the Juhu Wireless Station, a prime location.
The petition challenged a 1976 defence ministry notification, which imposes height restrictions on constructions in Maharashtra near military structures, including the Juhu station, where the SRA project has been stopped since 2009, following a stop work notice.
In 1996, BMC had allowed construction up to 19. 2 metres. Later in 2009, it asked the developer, Provincial Housings and Property Ltd, to seek the defence ministry’s no objection for the entire construction within 500 yards of the station. The military, in 2013, denied permission. The developer moved the HC in 2014 to challenge the 1976 notification and BMC’s 2009 condition.
The developer said the notification allows construction up to 19.2 metres without approval and had in 2005 sought relaxation to construct up to 48 metres. The notification is “otiose and redundant by efflux of time” and said the developer’s counsel Cherag Balsara. He pleaded that permission be granted to construct at least till 19 metres. But the bench of Justices SC Dhamradhikari and BP Colabawalla on September 8, held otherwise.
The bench held that Section 3 of the 1904 Works of Defence Act allows the Centre to impose restrictions on use of land in the vicinity of defence land or structures. The HC said, “Section 7(c) clearly stipulates that when any property is within 500 yards from a defence structure then no building or construction on the surface and no excavation above or below the surface can be erected.” This provision, read with the 1976 notification, bars construction in the vicinity of such military establishments, the HC said .
Balsara argued that “with advances in technology, the wireless centre has become obsolete, besides, in the past several buildings were granted permission within 500 yards of the station. The Centre had ‘a discretion under the law’ to allow construction up to 19.2 mtrs without NOC, argued Balsara.
The HC said, “Merely because some buildings were allowed to be constructed in breach of the provisions of law, it cannot give any right to the petitioner to contend that they too can commit this illegality and perpetuate it further.”
G R Sharma, counsel for the defence ministry, said past mistakes don’t enable the illegalities to perpetuate. He said a court of inquiry has already been initiated to probe how permissions were granted earlier.
The developer is now likely to appeal in the Supreme Court.
Credits ET Realty