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Synopsis

The Karnataka High Court has declared that executive guidelines restricting constructions around defence establishments cannot occupy the field, when there was already a legislation in place.

Such guidelines would be illegal in violation to the right to carry out occupation and the right to property, it said.

A single judge bench of Justices S Sunil Dutt Yadav set aside a 2016 endorsement by the Joint Director (Town Planning-South) Bruhat Bengaluru Mahanagara Palike (BBMP) and the Chief Quality Assurance Establishment, Ministry of Defence with regard to a no objection certificate sought with regard to constructing a multi-storey building in Bengaluru.

"The right of the owner of the property, to obtain sanction of building plan which is a concomitant right of property cannot be abridged by an executive fiat as in the nature of guideline. Accordingly, the guidelines would be illegal insofar as they infringe upon the right to enjoy property," the bench said.

The court also said the fundamental right under Article 19(1)(g) cannot be abridged by executive action and must be only by legislative action. 

A joint writ petition was filed by Jambo Plastics Pvt Ltd and Merushikhar Infra LLP, contending the application filed for issue of sanction to the building plan has been kept in abeyance as that the Authorities concerned with the Military Establishment, including the Ministry of Defence has refused to give NOC, as the proposed construction was a potential security risk. 

The Defence Ministry’s guidelines restricted construction within 100 meters (500 meters for buildings taller than four floors) under security hazard, requiring an NOC from local military authority. The guidelines also limited repairs and reconstruction near defence installations.

The court, however, said, "Executive guidelines have no place when field is occupied by legislation, the guidelines cannot be relied upon by the Union Government to impose restriction as long as the Works of Defence Act, 1903 is in operation and is not amended."

It also noted none of the guidelines are in the name of the President. 

"Article 77(1) of the Constitution stipulates that all executive action of Government of India shall be expressed to be taken in the name of the President and accordingly, Rules made by the President under Article 77(3) are also required to conform with the condition that exercise of executive power must be in the name of the President," the court said.

The bench further said when the legislative scheme contained in the Act provides for a methodology for imposition of restriction regarding proposed constructions in the vicinity of a Defence Establishment, there cannot be resort to exercise of Executive power for imposing of such restrictions. 

"It is clear that guidelines have been issued during the interregnum when steps are afoot to amend the Works of Defence Act, recourse to guidelines during such period is impermissible. When power is required to be exercised under the statute in a particular manner, there cannot be recourse to achieve the same consequence in a different manner by recourse to exercise of Executive power. 

It also said so far as the developer is concerned, the right to carry on occupation, trade or business including of developing property would be a right falling within Article 19(1)(g) of the Constitution of India and restriction to be imposed upon such right under Article 19(1)(g) would be only by a law under Article 19(6) which is by a legislative law and cannot be by an executive action. 

"The right of the owner of the property, i.e. to obtain sanction of building plan which is a concomitant right of property cannot be abridged by an executive fiat as in the nature of guideline in the present case. Accordingly, the guidelines would be illegal insofar as they infringe upon the right of the petitioner No.1 to enjoy his property," the bench said.

The court directed BBMP to proceed with consideration of grant of sanction plan from the stage at which it was kept in abeyance in accordance with the applicable laws and Rules without insisting for adherence to the guidelines and complete the process as per law, within a period of three months.

Case Title: Jambo Plastics Vs Chief Quality Assurance Establishment

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