Defense’s objections against the redevelopment of a structure near INS Trata are rejected by the Bombay High Court.

MUMBAI: The Bombay High Court ordered the BMC to process permissions for redeveloping a three-story property near the naval missile battery base INS Trata at Worli in four months without receiving approval from the naval authorities after observing that what was not a security risk to the defense establishment earlier cannot become one on being reconstructed to the same height.

According to a recent ruling by Justices Sunil Shukre and M W Chandwani, “…it would be illogical and even absurd to say the same building with the same height at the same place as the earlier developing which existed in the vicinity of INS Trata would turn into a security hazard upon its construction.”

As his 2019 plan to rebuild the Worli property as his family mansion was being obstructed, Dolby Builders and Girish Agarwal, the founder-director of the Dainik Bhaskar group, had petitioned the HC.

The HC denied the Centre’s motion to postpone its ruling and invalidated four circulars from the defense ministry that were issued in 2011, 2015, and 2022. According to the 2011 circular, building construction must receive a NOC, and where proposed development is located within 100–500 meters (for several storeys) of defense structures, officers must alert authorities to potential security risks.

The HC acknowledged the “utmost importance” of defense installation safety and that the defense authorities’ professional judgment must be accepted, but it also pointed out that the building proposed by Agarwal will be the same height as one that was standing in 1938 or 1940, which is a long time before INS Trata was put into service in 1992.

Through senior counsel Milind Sathe and advocate Saket Mone, the builder and Agarwal contended that despite the circulars not requiring a prior approval for redevelopment, the BMC was still demanding a defense NOC.

The naval administration rejected a NOC. Anil Singh, who was the additional solicitor general at the time, cited a defence ministry circular to argue that the rebuilt building would pose a security risk since it “would have a direct line of sight to the operational infrastructure” of the naval unit.

Sathe called the decision to reject the circulars “arbitrary” and questioned their constitutionality. The HC concurred with Sathe that the comprehensive Works of Defence Act, 1903, places restrictions on land use near defense facilities and that any additional restrictions must follow the Act’s established processes.

According to Sathe, the ministry cannot restrict the development of a dwelling in a residential area after publishing recommendations without according to the required processes. The High Court concluded that a “mere executive fiat” cannot be used to impose limitations.

According to the HC, senior Western Naval Command officers submitted a confidential memo in an attempt to support the need for a NOC. However, “we do not find any such glaring material that would cause a topsy-turvy in the security hazard perception emerging from the proposed building with the same height”, it continued.