Telangana High Court
The Union Of India, vs The State Of Telangana, on 4 June, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition Nos.5357, 16252, 16875, 18780, 18781 and 20587 of 2023 and
4175, 4222, 4230, 4277, 4326, 4342, 6801, 6841, 6967,
7014, 7065, 7070, 7083, 7090, 7099, 7101, 7107, 7111,
7121, 7122, 7126, 7148 & 7581 of 2024
COMMON ORDER:
Since the issue involved in all these Writ Petitions is one and the
same, they are being disposed of by this common order.
2. Heard learned Deputy Solicitor General of India appearing for the
petitioners in all these Writ Petitions; learned Government Pleader for
Municipal Administration and Urban Development; learned Standing
Counsel appearing for Hyderabad Metropolitan Development Authority;
learned Standing Counsel for Greater Hyderabad Municipal Corporation;
Sri Abhay Kumar Sagar, learned Standing Counsel for Municipality;
Sri K.Raghuveer Reddy, learned counsel appearing on behalf of
respondent No.5 in W.P.Nos.5357 and 20587 of 2023; Sri Koda
Satyanarayana Rao learned counsel appearing for respondent No.4 and
Sri M.Dhananjay Reddy, learned counsel appearing for on behalf of
respondent No.5 in W.P.No.4222 of 2024; and Sri K.Ramchandra, learned
counsel appearing on behalf of the unofficial respondent in W.P.Nos.6967
and 7070 of 2024 and perused the record.
2A. Though notice is ordered to the unofficial respondents in this batch
of Writ Petitions some of the notices are returned unserved. However, in
view of the manner of disposal and the nature of lis involved, this Court is
of the view that the matters can be disposed of without having the
audience of the said respondents.
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3. For ease of reference, the facts as stated in W.P.No.4222 of 2024
are taken as basis for disposal of all these Writ Petitions.
4. This batch of Writ Petitions are filed by the Union of India assailing
the action of the respondents-Municipal Corporation in not initiating
appropriate action against the constructions being made by the unofficial
respondents without obtaining No Objection Certificate (NOC) from the
defence authorities in the land adjacent to such defence establishments.
5. It is the contention of the petitioners that originally G.O.Ms.No.168
Municipal Administration and Urban Development (M) Department
dt.07.04.2012 provided for obtaining NOC from the concerned defence
authorities mandatory, while applying and obtaining building permission
from the concerned municipal authorities; that the said condition has been
deleted/amended by the respondent-authorities under G.O.Ms.No.7
Municipal Administration and Urban Development (M1) Department
dt.05.01.2016 without the consent or concurrence of the concerned
defence authorities; that removal of condition of requirement of obtaining
NOC from the concerned defence authorities is contrary to the Guidelines
dt.18.05.2011 issued by the Ministry of Defence, Government of India,
New Delhi; and that allowing such constructions immediately adjacent to
the defence establishments, is contrary to the provisions of the Works of
Defence Act, 1903 (for short, ‘the WODA’).
6. It is the further case of the petitioners that on account of the
respondent-municipal authorities granting building permission without
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insisting on obtaining NOC from the concerned Local Military Authority
(LMA)/defence authorities, and the unofficial respondents are undertaking
constructions on the basis of such permissions granted by the respondent-
authorities in the vicinity of defence establishments without maintaining
the minimum distance from the boundary of defence establishments as
prescribed Guidelines dt.18.05.2011, call for initiation of action against the
said constructions by the respondent-authorities, as the same is contrary
to the prescription of requirement to maintain the distance of 100 meters
from the boundary wall of defence establishment, thus, in contravention
of WODA.
7. It is also contended on behalf of the petitioners that as per
Guidelines dt.18.05.2011, NOC is required to be obtained, if any
construction is coming up within 100 meters radius of defence
establishment (for multistoried building of more than four storeys, the
distance shall be 500 meters) and only upon issuance of such NOC by the
LMA/defence authorities, the respondent-authorities are required to grant
permissions/building approvals.
8. Petitioners further contend that though Guidelines dt.18.05.2011
were superseded/amended by proceedings dt.21.10.2016, as the same
are not in accordance with the provisions of the WODA, the same were
not given effect to. Therefore, the authorities were directed to follow the
Guidelines dt.18.05.2011 only.
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9. Petitioners further contend that, on the LMA noticing the
respondent – authorities have deleted/omitted the condition of requiring
to obtain NOC for grant of building permission by amending G.O.Ms.No.168
dt.07.04.2012, vide G.O.Ms.No.7 dt.05.01.2016, the petitioners have
addressed letters to the respondent-authorities by bringing to their notice
regarding the security threat to military establishments/installations and
requested to make necessary amendments to G.O.Ms.No.7 dt.05.01.2016 by
ensuring that the condition of obtaining prior NOC for grant of building
permission is restored. It is contended that in spite of numerous
communications addressed by the LMA to respondent-authorities to issue
necessary instructions to the municipal authorities directing them to not
approve the building plans for four floors and above, which are within 500
meters distance from the defence boundary wall without obtaining
NOC/security clearance from the LMA as per the guidelines dt.18.05.2011
as amended from time to time, no action has been taken thereon and on
the other hand, permissions are being granted thereby exposing the
defence establishment to security threat.
10. On behalf of the petitioners, it is also contended that the Guidelines
dt.18.05.2011, which prescribe the requirement of maintaining minimum
100/500 meters distance from the defence establishment boundary wall at
any point of time were not under challenge and therefore, the unofficial
respondents also cannot claim that either their fundamental right is being
affected on account of such restriction or that the same is in violation of
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Article 300-A of the Constitution of India as the guidelines only require the
owner of the land to obtain NOC from the LMA before approaching the
respondent-authorities to obtain a building permission, whereupon the
LMA could assess the security threat/perception by causing inspection of
the site for issuing NOC.
11. It is also contended on behalf of the petitioners that the unofficial
respondents are undertaking development/construction immediately within
the vicinity of defence establishment and if such constructions are
permitted by the respondent-authorities, the same would expose the
activities of defence personnel to security risk; and that since, the
guidelines dt.18.05.2011 are issued in exercise of powers conferred under
Section 44 of the WODA, the same are binding on the respondent –
authorities for granting permissions.
12. On behalf of the petitioners, it is also contended that the guidelines
issued by the Ministry of Defence would have to be given importance and
are required to be enforced as they are directly proportional to the
Nation’s security, as held by the the Hon’ble Supreme Court in the case of
Gorakhnath Shankar Nakhw a v/ s. the M unicipal Com m issioner of
M unicipal Corporation of Greater M um bai and others 1 and the
Bombay High Court in the case of Vikram Delite Co-operative
Housing Society Ltd., a Co-operative Housing Society, through its
1
Special Leave to Appal (C) Nos.3112/2023 dt.20.02.2023
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Treasurer Vithal D. P atel and Ors. v/ s. Union of I ndia, through its
Secretary to the M inistry of Defence and others 2 .
13. Per contra, learned Government Pleader for MA&UD appearing on
behalf of the respective respondents in the Writ Petitions would submit
that, in the meeting held by the representatives of CREDAI with official of
State Government, Chaired by Chief Secretary on 28.08.2015, a request
was made to relax the condition of insisting of obtaining NOC from the
defence authorities for granting of building permission for ease of doing
business in the State; and that based on the aforesaid request received
from the CREDAI representatives, the State Government prepared a note
proposing to dispense with the condition of requiring to obtain NOC from
the defence authorities for applying to building permission, vide Note File
dt.18.12.2015 and had circulated the same for approval of the Cabinet of
the State Government and on being approval by the Cabinet on
02.01.2016, G.O.Ms.No.7 was issued on 05.01.2016 amending the
condition in G.O.Ms.No.168 dt.18.04.2012.
14. Learned Government Pleader would further submit that the
condition to obtain NOC for applying for building permission was
incorporated under G.O.Ms.No.168 by the said authorities themselves, and
in view of the request received from the representatives of CREDAI, the
said condition was deleted. Learned Government Pleader, however, would
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2022 SCC Online Bombay 6700
7
submit that though the condition of obtaining NOC from LMA was omitted
in the Building Rules, it has been made clear while granting
permissions/approvals that it would be the responsibility of the applicant
to follow the applicable rules as prescribed by the defence authorities in
their rules.
15. Learned Government Pleader further submits that insofar as grant
of building permission is concerned, the petitioners cannot insist that the
condition to insist for obtaining NOC from LMA is required to be
incorporated in the Building Rules of the State and it is for the petitioners
to take steps to enforce the provisions of WODA by themselves.
16. Learned Government Pleader further submits that if only there is
inconsistency between the provisions of the Central Act with that of the
State Act, the Central Act would prevail, and inasmuch the provisions of
the GHMC/Municipalities Act are not inconsistent with the WODA and the
power to enact laws with regard to the municipalities being State subject,
the petitioners cannot insist that the respondent – State is required to
make/enact laws in accordance with the requirement of the petitioners.
17. Learned Government Pleader further submits that either as per
WODA or the Rules and Guidelines issued thereunder, if any restriction is
imposed for allowing or not allowing construction in sites abutting to
defence establishments, it is for the said authority to take steps for
enforcing the same and it is for the said reason, the respondents-
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authorities, while granting building permission, have amply made it clear
that the building permission is being granted subject to the applicant
taking up the responsibility to follow the applicable rules as prescribed by
the defence authorities in their rules, and the petitioners cannot seek for
implementation/enforcement of rules framed by the petitioners through
the respondents-authorities.
18. Learned Government Pleader would further submit that the
respondents-authorities by the Building Rules notified by it, vide
G.O.Ms.No.168 dt.07.04.2012, had prescribed the distance from boundary
of Defence Area/Military establishment as 500 meters for seeking
clearance of Defence Authority, notwithstanding that the Guidelines
dt.18.05.2011 issued by the petitioners prescribe, 100 meters from the
radius of defence establishment (for multistoried building of more than
four storeys the distance shall be 500 meters) which guidelines were
amended by the petitioners themselves by guidelines dt.21.10.2016,
whereby the requirement of maintaining distance of 100 meters (500
meters for multistoried of more than four storeys) of the boundary of
defence establishments has been reduced to 10 meter in respect of
defence establishments mentioned in Annexures A and 100 meters for
defence establishment mentioned in Annexure B of the said guidelines.
19. Learned Government Pleader would further submit that merely on
account of amendment issued to Building Rules, 2012, in particular to Rule
3 vide G.O.Ms.No.7 MA&UD dt.05.01.2016 for not insisting to obtain NOC
9
from the defence authorities for grant of building permission would not
obliviate the responsibility of the person obtaining building permission to
comply with the rules prescribed by the defence authorities for
undertaking construction in any site abutting to defence establishments.
20. Learned Government Pleader thus submits that the petitioners are
required to take action on their own for implementation/enforcement of
the WODA and the Rules made thereunder and as such, the action of the
respondents-State in amending its building Rules cannot be said as either
being inconsistent with the provisions of the Central Act, for the said Act
to prevail over the State Act or the petitioners to feel aggrieved to
approach this Court by filing the present Writ Petition.
21. Sri K.Siddharth Rao, learned Standing Counsel for GHMC, appearing
on behalf of the respective respondents in all these Writ Petitions states
that the cases of the petitioners can be divided into two categories viz.,
pre-2016 and post-2016; that prior to issuance of G.O.Ms.No.7
dt.05.01.2016, since, the building permissions that were to be granted
were governed by the building rules issued vide G.O.Ms.No.168
dt.07.04.2012, which contained condition relating to the requirement of
obtaining prior clearance of defence authority in case of sites within 500
meter distance from the boundary of the defence area/military
establishment the respondents-authorities were duly insisting for obtaining
such NOC.
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22. Learned Standing Counsel would further submit that subsequent to
the amendment of Building Rules notified vide G.O.Ms.No.7 dt.05.01.2016,
building permissions were granted without insisting for obtaining of NOC
from defence authorities. However, the responsibility was fastened on the
applicants to follow the applicable rules as prescribed by the defence
authorities in their rules, for undertaking construction in sites abutting to
defence establishments, and granting of permission by the municipal
authorities would not automatically entitle the applicant to undertake
construction without complying with the conditions stipulated under the
other laws, be it State or Central.
23. Learned Standing Counsel further submits that in most of the cases
being complained by the petitioners of not taking any action by the
respondent corporation, the constructions are made by private individuals
without obtaining any permission or sanction from the respondent
corporation; that in respect of such constructions made unauthorizedly on
being brought to their notice, the respondents-authorities have initiated
action by issuing show cause notice dt.29.11.2021 and also passing
Speaking Order thereafter, holding the said constructions to be
unauthorized and illegal constructions; and that the authorities would take
steps for enforcing the said Speaking Order.
24. Learned Standing Counsel would further submit that amendment
made to the building rules is only in relation to obtaining building
permission from the respondent – corporation as per the building rules in
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force to ensure that the construction complies with the conditions/rules as
prescribed thereunder; and that in some of the cases being complained of
by the petitioners, the identification of such constructions is pending and
once such unauthorized constructions are identified by the respondents-
authorities, the authorities would take further action in terms of the
provisions of the GHMC Act.
25. It is also contended by the learned Standing Counsel appearing for
the respective respondents that the term ‘defence establishment’ has not
been defined, and the respondents-authorities were granting permissions
by considering the distance from the location of the defence establishment
within the defence area, as vast extent of land abutting to the defence
establishment is under occupation of defence authorities.
26. Learned Standing Counsel further submits that post-2016, the
guidelines issued by the petitioners themselves mention the required
distance to be only 10 meters from the outer wall of such defence
establishment/ installation for the restriction of requiring to obtain NOC,
the petitioners cannot claim of the respondents granting building
permission in violation of guidelines dt.18.05.2011; and that the guidelines
issued by the petitioners do not have any binding effect on the respondent
corporation of the State, much less the same having been issued under
any statutory provision for it to be implemented by the respondent –
corporation.
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27. Sri M.Dhananjay Reddy, learned counsel appearing on behalf of
respondent No.5 in W.P.No.4222 of 2024 would contend that it had
obtained layout sanction in respect of land admeasuring Acs.63.39 guntas
in Sy.No.346 from HMDA authorities on 18.03.2020 and is only selling
open plots in the layout to intending buyers and is not undertaking any
construction therein.
28. Learned counsel would further submit that while the 5th respondent
is taking development activities in respect of the layout permission
granted to it, (putting on hold the permission granted to it), it has
received notice dt.15.12.2021 from the petitioners addressed to the HMDA
and municipal authorities with a copy marked to the 5th respondent
herein pursuant to which, the HMDA authorities have issued letter
dt.21.02.2022 informing the petitioners that the layout permission granted
to it, vide proceedings dt.08.03.2020 is kept on hold and directed the
respondents to obtain NOC from the defence authorities.
29. Learned counsel further submits that upon the 5th respondent
submitting its explanation, the HMDA authorities had revoked the letter
dt.21.02.2022; and that the aforesaid proceeding issued by the HMDA
authorities revoking the withhold letter dt.21.02.2022 and restoring the
layout permission dt.08.03.2020 granted in its favour, was not challenged
by the petitioners even though a copy of the same was marked to the
learned counsel, who had initially issued the notice to HMDA authority
with a copy of the same being marked to the petitioners.
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30. Learned counsel further submits that the petitioners by suppressing
the proceedings dt.04.04.2022 and the guidelines issued vide circular
dt.21.10.2016 have filed the Writ Petition in the year 2024; that the
provisions of WODA on the basis of which petitioners are claiming that the
respondent-authority is required to insist for obtaining NOC from the
defence authorities/LMA while granting permission is similar to Land
Acquisition Act and the petitioners without initiating proceeding by issuing
notification under Section 3 of the WODA cannot claim that no
development/construction can be made in lands adjacent to the boundary
of the defence establishment/installation and such claim is in violation of
Article 300-A of the Constitution of India.
31. On behalf of the 5th respondent, it is further contended that the
guidelines dt.18.05.2011, or for that matter, guidelines dt.21.10.2016, do
not specify that NOC is required in respect of all properties adjoining the
boundaries of the defence area and since, the defence area includes vast
extent of land within which such defence establishment is situated, the
petitioners cannot insist that no development/construction can be
undertaken adjacent to the boundary of the defence lands.
32. It is further contended on behalf of the 5th respondent that as per
the guidelines dt.21.10.2016 issued by the Government of India, Ministry
of Defence for issuing NOC for building constructions in the vicinity of
defence establishments/installations, such establishments/installations
have been divided into two parts, namely Part A and Part B; that as per
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Part A of Annexure to the aforesaid guidelines, in respect of 193 stations
as listed therein, security restrictions shall apply up to 10 meters from the
outer wall of such defence establishments/installations in order to
maintain clear line of sight for effective surveillance and any construction
or repair activity within such restricted zone of 10 meters will only require
prior NOC from LMA/defence authority; that insofar as 149 stations as
listed in Part B of Annexure to the aforesaid guidelines, security
restrictions in respect of defence establishments/installations shall apply
up to 100 meters from the outer wall of such defence
establishments/installations to maintain clear line of sight for effective
surveillance and no construction or repair activity shall be permitted within
50 meters and height restriction of 03 meters (one storey) shall be
applicable for the distance from 50 meters to 100 meters and any
constructions or repair activity within such restricted zone between 50 to
100 meters will require prior NOC from the LMA/defence authorities.
33. Learned counsel further submits that the petitioners’ property does
not fall/located under any of the station/establishment mentioned at serial
No.32 of Annexure A of the guidelines issued under the said circular and
as such, the petitioners cannot insist for approaching the defence
authorities for obtaining NOC to undertake development activity, having
obtained layout permission for making plots from the concerned
authorities; that the guidelines be it dt.18.05.2011 or dt.21.10.2016,
cannot be given the status of a statute or Rules having been framed in
15
accordance with Section 44 of the WODA for them to have any binding
effect.
34. In support of the aforesaid submissions, reliance has been placed
on the decision of the Delhi High Court dt.11.01.2019, Bombay High
Court, Madras High Court dt.02.09.2023 and that of the Apex Court in
Babaji K ondaji Garad and others v/ s. Nasik M erchants
Cooperative Bank Lim ited, Nasik and others 3 .
35. Sri K.Raghuveer Reddy, learned counsel appearing on behalf of
respondent No.5 in W.P.No.5357 of 2023 would contend that the
respondent had made construction of the building consisting of cellar +
stilt + five upper floors in Plot No.75 Northern Part and 76 in Sy.No.24
situated at Peerancheruvu by obtaining permission from the concerned
municipal authorities on 19.06.2021; that the aforesaid construction
undertaken by the 5th respondent is 150 meters away from the military
establishment; that the aforesaid construction made by the 5th respondent
is governed by 2016 guidelines, which prescribes, security restrictions of
10 meters from outer wall of such defence establishment/installation; that
it has not been issued with any notice mentioning violation, for the
petitioners to file the Writ Petition against it nor any notice is received
from the concerned municipality which had granted building permission in
3
AIR 1984 SC 192
16
his/its favour alleging any violation while proceeding with the construction
for the petitioners to approach this Court.
36. Learned counsel would further submit that since the WODA being a
special enactment, the said Act is required to be implemented in terms of
provisions contained thereunder and the petitioners cannot seek the
assistance of the respondents-authorities for alleged violation, if any under
the said Act; that if there is any alleged violation under the Act, the
petitioners are required to take action in terms of Section 37 of the Act
and for the said reason also, the Writ Petition as filed by the petitioners is
liable to be dismissed.
37. Insofar as W.P.No.20587 of 2023 is concerned, learned counsel
would contend that the unofficial respondent therein had obtained building
permission dt.16.05.2022 for construction of cellar + stilt + four upper
floors in Plot No.152 and had made construction in accordance with the
sanction plan and that the distance between the construction and the
defence establishment is 250 meters and as such, the petitioners cannot
maintain the present Writ Petition on the basis of the notice dt.29.08.2022
and thus, seeks for dismissal of the same.
38. Sri K.Ramchandra, learned counsel appearing on behalf of the
unofficial respondents in W.P.No.6967 and 7070 of 2024 would submit
that the unofficial respondents’ houses in both the Writ Petitions were in
existence since long, while unofficial respondent in W.P.No.6967 of 2024
17
had constructed house consisting of four floors in the year 2010, the
house of the unofficial respondent in W.P.No.7074 of 2024 is only
consisting of ground floor and in both the cases, no defence land is
involved and as such, the petitioners cannot maintain the present Writ
Petitions against unofficial respondent in both the Writ Petitions.
39. I have taken note of the respective contentions urged.
40. Before proceeding to consider as to whether the petitioners can
raise an objection to the respondent – State amending its building rules
notified vide G.O.Ms.No.168 dt.07.04.2012 under G.O.Ms.No.7
dt.21.10.2016 taking away the requirement of obtaining NOC from the
defence authorities/LMA for grant of building permission is concerned, it is
pertinent to examine the effect of guidelines issued by the petitioners.
41. Ministry of Defence, Government of India, has issued guidelines for
issuance of NOC for building construction vide communication
dt.18.05.2011 addressed to Chief of Army Staff, Chief of Air Staff and
Chief of Naval Staff. In the said communication, it is noted that WODA
imposes restrictions upon use and enjoyment of land in the vicinity of
defence establishments and in view of two recent cases viz., Sukna and
Adarsh, the same needs to be comprehensively amended, for which it is
noted that process is put in motion and in the meantime, the guidelines
are to be followed while issuing NOC for construction.
18
42. Though by the aforesaid communication, it is stated as amendment
to WODA is put in motion to address security concern, admittedly, no
amendment has been notified. In the meantime, Government of India,
MoD has issued another circular/communication specifying the guidelines
for issue of NOC for building constructions.
43. Both the guidelines issued vide circular dt.18.05.2011 and
21.10.2016, were subject matter of consideration before Division Bench of
Delhi High Court in the case of Union of India v/ s. Governm ent of
NCT Delhi 4 , wherein the Division Bench of Delhi High Court had noted
that the “guidelines dt.21.10.2016 mentions that large number of
representations have been received from elected representatives to review
the guidelines issued in 2011 as difficulties are being faced by public in
constructing buildings on their own lands, review of the guidelines
dt.18.05.2011 was undertaken and the Government has decided to amend
the guidelines issued vide guidelines dt.18.05.2011, 18.03.2015 and
17.11.2015.” (underlining supplied by this Court)
44. The Delhi High Court by noting as above, considered clause 2(a) of
the guidelines dt.21.10.2016, as under:
“2(a) Security restrictions in respect of Defence establishments/
installations located at 193 stations as listed in Part A of Annexure to
this circular shall apply upto 10 meters from the outer wall of such
Defence establishments/ installations to maintain clear line of sight4
MANU/DE/3308/2022
19for effective surveillance. Any construction or repair activity within
such restricted zone of 10 meters will require prior No Objection
Certificate (NoC) from the Local Military Authority (LMA)/Defence
establishments.”
45. Since, the Division Bench of Delhi High Court had held that
Guidelines issued, vide circular dt.21.10.2016 to be an amendment to
Guidelines dt.18.05.2011, the submission made on behalf of the
petitioners that the same were not given effect to and the authorities were
directed to follow the guidelines dt.18.05.2011 in absence of any further
circular to the said effect, does not merit consideration.
46. Further, the issue of permission for construction within the vicinity
of defence establishment has been subject matter of consideration before
the Kerala High Court in W.C.No.9799 dt.08.02.2018; Madhya Pradesh
High Court in M unna @ R am esh Yadav v/ s. Union of I ndia 5 ; Bombay
High Court in Vikram Delite Cooperating Housing Society Lim ited ‘s
case (1 supra); and High Court of Calcutta in the case of Com m andant,
Ordnance Depot v/ s. the K olkata M unicipal Corporation 6.
47. In the above decisions rendered, the respective High Courts have
analyzed the guidelines issued by the Ministry of Defence dt.18.05.2011
and guidelines dt.21.10.2016. The Calcutta High Court in the case of
Com m andant, Ordnance Depot (6 supra), had an occasion to consider
5
W.P.No.16946 of 2016 dt.02.09.2023
6
MANU/WB/1005/2022
20
the effect of guidelines issued on 21.10.2016, over the guidelines
dt.18.05.2011 which decision of the learned Single Judge of the Calcutta
High Court was also affirmed by a Division Bench of the said High Court.
48. Without burdening this order with the findings recorded in the
aforesaid decisions by the respective High Courts, it would suffice it to
state that in all the aforesaid decisions, it has been consistently held that
the guidelines issued vide circular dt.18.05.2011 specifying the restricted
area from the defence establishment/installation stood amended, by
guidelines issued vide circular dt.21.10.2016 and the said guidelines would
apply in respect of building permissions obtained subsequent thereto.
49. The only case wherein a different view was taken is by the High
Court of Jharkhand at Ranchi in the case of Union of I ndia v/ s. R anchi
M unicipal Corporation and others 7 wherein the Division Bench, by
applying the principle of purposive construction of the statute and also
taking into consideration the militant attacks in Sukna and Adarsh, had
held that the guidelines dt.18.05.2011 need to be given emphasis over the
guidelines dt.21.10.2016.
50. The aforesaid divergent views expressed by High Courts in some
cases, are subject matter of consideration before the Hon’ble Apex Court
in S.L.P.(C) appeals.
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MANU/JH/0404/2024
21
51. At this stage, it is pertinent to note that in a recent judgment, the
Hon’ble Apex Court in the case of M / s.Goya R esorts P rivate Lim ited
v/ s. Union of I ndia 8 , had an occasion to consider the scope of the
WODA.
52. The Hon’ble Supreme Court in the aforesaid decision by considering
the provisions of the WODA, had held that:
“14…. the 1903 Act is in the interest of the national security and
defence but at the same time, under its guise the citizens cannot be
deprived of or denied the use of their property illegally and in
violation of the statutory provisions. There has to be a balance
between the purpose and object of the 1903 Act and the legal right
of the citizens to use and enjoy their property. The 1903 Act in its
scheme does provide that balancing factor to be carried out by the
authorities to take appropriate steps by giving show cause notice
considering the claims, making an enquiry, making an award, and
determining the compensation for the loss suffered.” (underlining
supplied by this Court)
53. The Apex Court by observing as above, while quashing the
declaration and the notices impugned in the aforesaid civil appeals issued
under Section 3 of the Act, however kept the aforesaid proceedings in
abeyance till 31.05.2025 by granting liberty to the Central Government to
publish a fresh declaration under Section 3 of the Act within the above
time as stipulated.
8
Civil Appeal No.6079 of 2017
22
54. Having regard to the aforesaid decision of the Hon’ble Supreme
Court, it is to be noted that in the facts of the present case, though on
behalf of the petitioners it is contended that the Guidelines dt.18.05.2011,
continue to operate requiring to obtain NOC in respect of constructions in
sites adjacent to defence establishments, notwithstanding the issuance
guidelines dt.21.10.2016, as noted hereinabove, since, both the aforesaid
guidelines, were subject matter of consideration before various High
Courts and in particular before the Delhi High Court and Division Bench of
Calcutta High Court, this Court is in agreement with the view taken therein
and holds that by Guidelines issued vide Circular dt.21.10.2016, the
guidelines issued earlier on 18.05.2011 stood amended.
55. Another aspect of the guidelines issued is that the same are issued
in the form of circulars addressed to the Chiefs of Army, Air and Naval
Staff. It is not notified for general public to be aware or bound by the
same. The effect of the said circulars issued is that, in case any
construction is made within the vicinity or adjacent to defence
establishment/installation, the authorities are required to take action as
per WODA by acquiring the land/site or paying compensation to the owner
for not allowing him to enjoy his property absolutely. Further, it is settled
position of law that circulars issued do not have any statutory force and
binds only authorities.
56. Though on behalf of the petitioners, it is vehemently contended
that the respondent – State by doing away with the condition of requiring
23
to obtain NOC from defence authorities/LMA while obtaining building
permission in respect of areas in the vicinity of defence establishments, is
exposing the defence establishment to security risk and in spite of the
petitioners raising objection for such omission, the same has not been
considered by the respondents, it is to be noted that the building rules are
framed by the respondent – State in exercise of powers conferred under
the respective State enactments, namely Municipalities Act or GHMC Act,
1955, referable to Entry 5 of List II of 7th Schedule to Constitution of
India. It is settled position of law that only when there is a conflict
between an enactment made by the Union and the State, the law made by
the Union would prevail and not otherwise (see R am avilas Tobacco
Com pany v/ s. The Secretary 9 and Hoechst P harm aceuticals Ltd.
v/ s. State of Bihar 10).
57. Since, the State in order to give impetus to infrastructural growth
under its policy of ease of doing business, having amended the building
rules, doing away with the requirement of obtaining NOC from defence
authorities/LMA, for obtaining building permission in sites adjacent or in
the vicinity of defence establishment/installation and on the other hand,
imposing responsibility on the applicant seeking building permission to
comply with the rules of the defence authorities, this Court is of the
considered view that the petitioners can neither plead as not having a
9
1985 Suppl. SCC 476
10
1983 (4) SCC 45
24
restriction in the building rules of the respondents is contrary to the
provision of WODA nor the respondent authorities granting building
permission is contrary to WODA.
58. Further, WODA having been enacted in the year 1903, by the
Parliament and being a Central Legislation, it is for the petitioners who are
the authorities under the said Act to take action for its implementation on
its own by initiating action thereunder rather than seeking for its
enforcement through the respondents.
59. In the facts of the present case, though on behalf of the
petitioners, it is contended that if guidelines dt.18.05.2011 were adhered
to by the respondent authorities while granting building permissions, the
same would result in the unofficial respondents requiring to obtain NOC
from the LMA/defence authority, the respondents on the other hand
contend that the State having taken a decision not to insist for obtaining
NOC from the defence authorities for grant of building permission by
them, however, having imposed condition in the building permission
granted by them, that the person obtaining building permission is required
to comply with the Rules of the defence authorities, if the site of
construction is adjacent to defence establishment, it is for the petitioners
to initiate action, if there is any violation.
60. As noted herein, since, both the Acts, viz., WODA and Municipalities
Act are separate, if there is any violation of the respective enactment or
25
Rules made thereunder, it is only the authorities under the said Act can
initiate action and it is not for the authority under other enactment to take
any action for alleged violation.
61. Though on behalf of the petitioners, it is contended of building
permission being granted in the vicinity of defence
establishments/installations and construction made being contrary to the
provisions of WODA, it is not shown to this Court of petitioners initiating
any action against such constructions, by exercising powers under WODA
or having taken steps by issuing notification/declaration under Section 3
and further action culminating in passing of Award under Section 12 by
paying compensation.
62. Though on behalf of unofficial respondents who have undertaken
construction/development, it is contended that since guidelines issued vide
circular dt.21.10.2016 have categorized the defence establishments into
Part A and Part B specifying that in respect of the establishments listed in
Part A, the security restriction being only 10 meters and since all their
constructions are beyond 10 meters, neither the petitioners nor the
respondents can insist for obtaining NOC by approaching the LMA/defence
authorities; and that at Serial No.32 in Part A of the guidelines
dt.21.10.2016 issued by the Union of India wherein it mentions the
defence establishment of Secunderabad in Ranga Reddy District of
Telangana State consists of areas of Maredpalli, Lal Bazaar, Alwal,
Amuguda, Mehdipatnam, Langar House, Kanchan Bagh, Golconda,
26
Ibrahim Bagh and Makaidarwaja, the security restriction up to 10 meters
from outer wall can only be made applicable to those establishments
mentioned therein and not other establishments, it cannot be said that
defence establishment/installations mentioned therein Part A numbering to
193 stations and Part B are 149 stations only defence establishments/
installations, and there exists no other establishment, to which these
security restrictions would apply and there is no other defence
establishment/installation to which no restrictions are applicable.
63. On the other hand, if there is any other defence establishment/
installation which does not find mention either in Part A or Part B of
Annexure to the guidelines to which the restriction of 10 meter or up to
100 meter, as the case may be applicable, in such cases, the restriction as
may be notified by a specific notification or as specified in Section 7 of
WODA would continue to apply.
64. Though On behalf of the unofficial respondents in W.P.No.4222 of
2024, it is further contended that since, the distance from the wall of the
defence establishment is more or that the development being undertaken
does not include construction and is only making a layout, firstly, it is to
be seen as per the provisions of WODA, the same is applicable to any land
adjacent or in the vicinity of defence establishment/installation from being
put to use by the owner, the authorities are required to take action by
issuing declaration/notification preventing such use by paying
compensation. Thus, the claim of the unofficial respondents that it is only
27
making a layout of plots and selling them to intending purchasers would
mean the unofficial respondent using the land, which the authorities under
the WODA can restrict by following the procedure prescribed thereunder.
Thus, the claim of the unofficial respondents in this regard does not merit
consideration.
65. Even though on behalf of the petitioners and respondents, it is not
shown to this Court of the areas covered by the present Writ Petitions
being covered either by air force or under the army establishment at
Secunderabad, however, judicial notice can be taken of the fact that there
have been notifications issued from time to time concerning the Air Force
Station, Hakimpet, Air Force Station Dindigal, in the State of Telangana,
vide SRO No.12 dt.14.02.2007 which notification has been renewed on
13.01.2010.
66. Similarly, this Court has also come across notifications vide SRO
Nos.136, 137 dt.19.05.1976 in respect of area in the vicinity of DRDL,
Chandrayanagutta, and DMRL, Kanchanbagh, SRO No.49 dt.07.04.2006,
in respect of the area in the vicinity of RCI, Vignyana Kancha Post Office,
Hyderabad, SRO No.74 dt.22.10.2007 in respect of Advance system,
laboratory, Kanchanbagh, Hyderabad, and SRO No.58 dt.04.06.2008, in
respect of area in the vicinity of DLRL security restrictions have been
notified. Thus, the claim of the unofficial respondents that it is only the
193 stations of defence establishments/installations which are required to
28
have security restrictions and not other, does not appeal to this Court for
being accepted.
67. On the other hand, if any station is not mentioned either in Part A
or Part B of Annexure to guidelines dt.21.10.2016, in respect of such
stations, the restriction as specified in Section 7 of WODA would continue
to apply subject to publication of notice under Section 3 of the WODA.
Further, in respect of the stations which find mention in Part A of the
Annexures to the guidelines dt.21.10.2016 are concerned, though the
same mentions the army establishment as ‘Secunderabad’ under which
various stations are mentioned, the area of coverage of the respective
stations would be as per the operation jurisdictional activities of the
defence authorities and is not based on local municipal jurisdiction.
68. The same can be explained by way of illustration – Ibrahimbagh
Station of Secunderabad defence establishment is spread over the areas
of Ibrahimbagh and also in the neighbourhood like the area of Bandlaguda
Jagir and other areas, under the administrative control of the said station,
would have to be considered as unit of the said station. Similar, such
situation may also exist in case of Maredpalli/Alwal stations, if there exist
separate unit in such locations under the respective stations. Thus, the
contention of the unofficial respondents that the places whereat the
constructions/developments have been undertaken by them are not
mentioned in Serial No.32 of Part A of annexure to the guidelines
dt.21.10.2016, the authorities cannot enforce guidelines of even security
29
restriction of 10 meter, in the considered view of this Court cannot be
accepted as valid claim.
69. Further, it is to be noted that though various notifications have
been issued by the Ministry of Defence, Government of India, notifying the
areas within the vicinity of defence establishments for which the security
restrictions would apply, no material is placed before this Court to show
that the authorities having issued a declaration under Section 3 of the Act,
and having taken further action, as contemplated thereunder, in order to
claim that they being entitled to enforce restrictions imposed in terms of
notification issued.
70. The Hon’ble Supreme Court in M / s.Goya R esorts P rivate
Lim ited ‘s case (8 supra) had held that post issuance of notification under
Section 3 of the Act, further steps in terms of the Act including causing
enquiry and passing of award in terms of Section 12 being required to be
undertaken within the time prescribed under the Act, failing which, the
notification issued would stand lapsed, the Union cannot claim to continue
with the declaration under Section 3 of the Act perpetually which not only
is impermissible in law but arbitrary, unjust and unreasonable.
71. In the facts of the present case, the petitioners as well as the
unofficial respondents having not placed any material before this Court as
to the areas of the defence establishment of Secunderabad and its units
mentioned therein, the Court cannot pass an order in vacuum accepting
30
either the claim of the petitioners or that of the unofficial respondents
herein, as to the said area being covered or not covered by Annexure A
attracting or not attracting the security restrictions.
72. Further, if any, notification is issued and the said notification being
in force, the petitioners are required to take further steps in terms of the
Act as held by the Apex Court in M / s.Goya R esorts P rivate Lim ited ‘s
case (8 supra) in order to claim the restrictions in terms of Section 7 of
the WODA or as specified under the specific notification are applicable.
However, taking note of the fact that even before the Hon’ble Supreme
Court since, it was pleaded that no further steps having been taken after
issuing declaration/notification under Section 3 of the WODA, and the
Hon’ble Supreme Court having granted the Union of India six months time
to issue fresh declaration/notification under Section 3 of the WODA, by
setting aside the declaration issued earlier, and taking note that security
interest of the nation are of paramount importance, particularly the recent
Pahalgam incident, this Court is of the view that personal interest should
pave way for public interest. As noted herein above since, it is not shown
to this Court of any notification having been issued under Section 3 of
WODA and further, steps having been taken as specified thereunder
within the time period prescribed thereunder, even in the present cases
this Court is of the view that the following directions are to be given:
i) The petitioners are given time till 31.12.2025 to publish
notification/declaration under Section 3 of the WODA, if not already issued
31and implemented, after which, the notification/declaration shall come into
force from the date of its publication.
ii) The petitioners shall not take any action on the basis of
guidelines dt.18.05.2011 in respect of building permissions that have been
obtained post 21.10.2016, whereby the security restrictions in respect of
defence establishment and its stations notified in Part A of Annexure have
been notified as 10 meters from the boundary wall of the defence
establishment.
iii) The unofficial respondents herein are also restrained from
undertaking any construction in the meantime till fresh
notification/declaration are issued.
iv) The petitioners are directed to proceed strictly in accordance
with the WODA after issuing fresh declaration/notification under Section 3
of the WODA.
73. Insofar as constructions made without obtaining any building
permission from the respondent – municipal authorities, notwithstanding
as to whether such construction is within the security restriction area or
not, the concerned municipal authorities shall take action is accordingly
with the provisions of the respective enactments expeditiously, as
continuance of such poses threat to internal security of the Nation.
74. Subject to above observations and directions, the Writ Petitions are
disposed of. No order as to costs.
32
75. Miscellaneous petitions, if any, pending in these writ petitions shall
stand closed.
___________________
T. VINOD KUMAR, J
Date: 04.06.2025
GJ
33
THE HON’BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition Nos.5357, 16252, 16875, 18780, 18781 and 20587
of 2023 and 4175, 4222, 4230, 4277, 4326, 4342, 6801, 6841,
6967, 7014, 7065, 7070, 7083, 7090, 7099, 7101, 7107, 7111,
7121, 7122, 7126, 7148 and 7581 of 2024
04.06.2025
GJ