Does Prevailing Defence Legislation Truly Impede Redevelopment of Pre-Existing Structures?

Picture this: You are the proud owner of a property in Juhu, Mumbai, that, since 1973, has been the site of a thriving cinema. However, in 2017, the Municipal Corporation deems your structure unsafe, necessitating immediate cessation of operations. You envision a grand project for redevelopment, but military authorities, citing a notification issued by the Ministry of Defence, imposing restrictions under the Works of Defence Act, thwart your plans. This forms the crux of the matter in the case of Sameer Baijanath Joshi v. Union of India and Ors., before the Bombay High Court (WRIT PETITION NO.367 OF 2021).

The bone of contention in this case is the applicability of the Notification dated 19th June 1976, issued by the Ministry of Defence, Government of India (1976 Notification) and a subsequent Clarification to the said 1976 Notification. This Notification was issued by the Defence Ministry in exercise of its power under Section 3 of the Works of Defence Act, 1903 (Act), and, the purpose of this Notification was to impose certain restrictions under Section 7(c) of the Act. For the uninitiated, Section 3 vests the Central Government with the authority to impose restrictions on land use in the vicinity of defence installations, while Section 7(c) prohibits construction within 500 yards of such works. The 1976 notification, enacted under Section 7(c), places restrictions on land use within 500 yards of a Signal Transmitting Station. The petitioner's property, being within this restricted zone, gave the military authorities grounds to reject the redevelopment proposal.

However, the 1976 Notification contains a proviso that exempts permanent constructions that were completed before the Notification's issuance, provided they adhere to a height restriction of 15.24 meters. The petitioner argued that their structure existed since 1973 and even though originally the redevelopment proposal was over the height restriction, they were willing to revise the proposal to bring it within the specified limit. In view thereof, the Petitioner argued that he should be exempted as per this proviso to 1976 Notification.

The Union of India, on the other hand, sought to argue that the proviso in the 1976 Notification does not permit redevelopment and that such a new construction would entail excavation and building on the surface, both of which activities are absolutely prohibited under the Act. However, the Bombay High Court whilst ruling in favour of the Petitioner, held that the proviso's purpose was to protect existing constructions and that further redevelopment would not render the prohibitions contained in Section 7(c) nugatory. Therefore, it was concluded that redevelopment should be permissible, provided that the height remained within the prescribed limit and the dimensions stayed the same.

Sameer Baijanath Joshi v. Union of India and Ors. sheds light on the complex issue of redevelopment rights in areas close to defence installations, especially in densely populated cities like Mumbai. The ruling highlights that while such development rights are anyway not absolute, they are protected for constructions predating such notifications, given they meet certain conditions. This landmark decision underscores that redevelopment isn't entirely barred by such notifications, providing a beacon of hope for future cases involving similar issues.