The defence authorities cannot issue guidelines by exercising executive power for imposing restrictions on proposed constructions in the vicinity of defence establishments when the Works of Defence Act, 1903, stipulates a methodology for imposition of such restrictions, said the High Court of Karnataka.
Justice S. Sunil Dutt Yadav made these observations while setting aside a communication issued by the Chief Quality Assurance Establishment (Warship Equipment), Jalahalli, in 2016.
The CQAE, relying on the guidelines evolved between 2011-16 by the defence authorities for restricting constructions around defence establishments, had in 2016 refused to grant a no-objection certificate to a builder for constructing a residential complex on a property situated in the vicinity of a defence establishment on Tumakuru Road.
Following this communication from CQAE, the BBMP had kept in abeyance the plan submitted by the petitioner, Merushikhar Infra LLP, for the proposed joint development of a residential complex on the land belonging to Jumbo Plastics Pvt. Ltd.
“As it is clear that guidelines have been issued during the interregnum when steps were afoot to amend the Works of Defence Act, recourse to guidelines during such period is impermissible,” the court said while observing that when power is required to be exercised under the 1903 Act in a particular manner, the authorities cannot resort to a different manner, through the guidelines.
Though the petitioner has not challenged the validity of the guidelines, the court said the guidelines cannot be relied upon by the Union government to impose restrictions as long as the 1903 Act is in operation and is not amended.
Stating that the fundamental right under Article 19 (1) (g) of the petitioner cannot be abridged by executive action and it must be only by legislative action, the court also said the right of the petitioner to obtain the sanction of the building plan, which is a concomitant right of property, cannot be abridged by an executive fiat issued in the nature of guidelines.
As the guidelines are not backed by legal foundation, the court directed the BBMP to proceed with consideration of grant of sanction for the plan as per the law without insisting for adherence to the defence authorities’ guidelines, and complete the process within three months.
