Defence Ministry guidelines cannot restrict construction activities without legislative action: Karnataka HC

Guidelines restricting construction activities in the vicinity of the Ministry of Defence (MoD) installations are not issued in the President of India’s name, the Karnataka High Court has observed.

It has directed the Bruhat Bengaluru Mahanagara Palike (BBMP) to proceed considering the sanctioned plan for a residential project on Tumakuru Road without insisting on MoD guidelines.

“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 in operation and is not amended,” Justice Sunil Dutt Yadav said.

In September 2014, petitioners Jambo Plastics Ltd and Merushikhar Infra LLP signed a joint agreement to develop the land. Their application seeking sanction of the residential project in 2015 had been kept in abeyance by the BBMP since they did not obtain a No Objection Certificate (NOC) from the Chief Quality Assurance Establishment (Warship Equipment), Jalahalli Camp Road, Yeshwantpur, which is an MoD undertaking.

The petitioners challenged the September 3, 2016, endorsement issued by the BBMP’s Joint Director (Town Planning-South), and the July 15, 2016, letter issued by the Chief Quality Assurance Establishment denying the NoC.

Relying on an MoD communication, the letter said the construction is a potential security risk to the establishment.  

The Defence Ministry's guidelines restrict 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 limit repairs and reconstruction near defence installations.

Justice Suraj Govindaraj said the petitioner’s fundamental rights guaranteed under Article 19(1)(g) of the constitution cannot be abridged by executive action and must be done only by legislative action.

“The right of the owner of the property, i.e., petitioner no. 1 (Jambo Plastics Ltd) to obtain sanction of the 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,” the court said.

“Accordingly, the guidelines would be illegal insofar as they infringe upon the right of petitioner no. 1 to enjoy his property,” it added.

The court asked the BBMP to consider sanctioning the plan, at which stage it was kept in abeyance. It has asked the civic body to complete the process in line with the law in three months.