LI Network
Published on: 02 September 2023 at 15:21 IST
The Karnataka High Court, through a ruling by Justice S Sunil Dutt Yadav, has determined that executive guidelines cannot take precedence over the Works of Defence Act, 1903 when granting No Objection Certificates (NOCs) for controlling construction activities around Defence establishments.
In response to a petition filed by Jambo Plastics Pvt Ltd, the court instructed the Bangalore Bruhat Mahanagara Palike (BBMP) to reconsider sanctioning the petitioner’s pending construction plan without insisting on adherence to the Guidelines dated October 21, 2016.
The court emphasized: “Executive Guidelines have no place when the field is occupied by Legislation; the Guidelines cannot be relied upon by the Union Government to impose restrictions as long as the Works of Defence Act, 1903 is operational and not amended.”
The petitioner had sought approval for a residential plan, but BBMP rejected it, citing the need for a NOC from the Ministry of Defence, in line with a letter issued by the Chief Quality Assurance Officer of the Ministry.
The petitioner argued that in the presence of the Works of Defence Act, 1903, executive powers could not be exercised in that domain.
The Chief Quality Assurance Officer contended that NOC should be obtained from the local Military Authority for constructions within 100 meters, and in the case of multi-storey buildings exceeding four floors, NOC is required if the structure is within 500 meters of the Defence Establishment’s compound wall.
The court noted that the Works of Defence Act, 1903 was enacted to impose restrictions on land use near Defence establishments. Section 3 of the Act deals with declarations regarding restrictions, and Section 7 addresses those restrictions.
After analyzing the Act and the Guidelines, the court concluded that resorting to executive power was unnecessary when a legislative scheme was already in place for imposing restrictions on constructions near Defence Establishments.
The court underscored that when a statute dictates a specific process for exercising power in a particular manner, resorting to executive powers for the same outcome is inappropriate.
Furthermore, the court noted that the right of property owners, including developers, falls under Article 19(1)(g) of the Indian Constitution. Any restriction on this right must be imposed by a legislative law under Article 19(6), not through executive action.
Drawing from the Supreme Court’s decision in Union of India v. Naveen Jindal (2004), the court highlighted that restricting construction near a Defence Establishment could infringe upon the right under Article 300-A of the Constitution.
The court ruled that the Guidelines issued were not under the President’s name, contrary to Article 77(1), which mandates that all Executive actions of the Government of India be expressed in the President’s name.
The court found that the Guidelines did not adhere to this requirement and declared them illegal.
Thus, the Karnataka High Court allowed the petition filed by Jambo Plastics Pvt. Ltd and upheld the supremacy of the Works of Defence Act, 1903 over executive guidelines in matters of building permissions around military establishments.
