Construction cannot be allowed at the cost of national security: Bombay High Court

Construction of building cannot be allowed at the cost of national security, the Bombay High Court said on Friday while disallowing requisite permissions for a 19-storey building in Mumbai's Mazgaon Dock, a defence area [Gorakhnath Shankar Nakhwa vs The Municipal Commissioner of Municipal Corporation of Greater Mumbai]..A division bench of Justices Ramesh Dhanuka and Kamal Khata said that it is imperative to ensure that there is no recording, photography, sharing, transferring or transmitting of sensitive data or information near a defence area, which would be more than useful for any enemy and could affect the nation's sovereignty and integrity."In our view, construction activities cannot be permitted at the cost of national security. The construction proposed in the instant case, is likely to be misused for spying over the property and activities of Mazgaon Dock, which is an offence under the provisions of the Official Secrets Act," the bench held.The bench further denied any relief to a developer and tenants of the proposed building, stating,"In our view, individual inconvenience alleged to have been canvassed by the petitioners cannot prevail over the national interest. The public interest would prevail over the private interest.".The bench was hearing a clutch of petitions filed by tenants, who by virtue of an agreement, had given their properties for redevelopment to a developer. The parties had agreed for construction of a 19-storey building, of which the first 12 floors would be occupied by the tenants and rest above would be sold by the developer.However, the site fell within the close proximity with the Mazgaon Dock, which is declared a 'prohibited area' under the Official Secrets Act. Thus, the authority objected to the construction of the building, which was initially permitted by the Brihanmumbai Municipal Corporation (BMC).But the civic body too issued a stop work notice to the developer, when he had constructed till 7 floors of the building. However, the developer completed the construction till 19 floors. The Central government authorities and the BMC then refused to issue the mandatory certificates to the tenants and the developer and stopped the entire work at the site.Aggrieved by this, the tenants moved the High Court arguing that their right to property was being violated by the authorities.The Bench, however, noted that the guidelines issued by the Central government are to restrict the construction activities higher than 4th floor and that there is no complete bar on the construction."No fundamental rights of the petitioners are thus violated. Be that as it may, the fundamental rights claimed by the petitioners under Article 19(1) (g) are subject to the restrictions under Article 19(6) of the Constitution of India," the bench reasoned..The judges agreed with the contention of the Central government with regards to the security threat in the area if the 19-storey building is allowed as it could be misused for spying and other purposes.The issue of security threats, the judges said, has to be considered by the authority of the Central government which is an expert in that field to consider the perception of security threats and seriousness.It added that the Court does not possess any expertise on the security threat perceived by the defence authority and would be exceeding it jurisdiction of it interferes to ascertain whether there is security threat."This Court cannot lose sight of the fact that indeed the times have changed. Terrorism is on the rise and the State is no longer fighting an unknown enemy. The nature of threat to the security of the nation has undergone a vast change over the last decade with terrorism emerging as source of major and unconventional danger. The assessment of such threats has heightened and accordingly the necessary precautionary measures have to be taken against them," the bench underscored..Reagarding the contention of the petitioners that similar permissions have been granted in the past for constructing high-rise buildings in city's Colaba area, the bench dismissed the same saying two wrongs cannot make one right. "Even if some permissions are granted by the Planning Authority in past for carrying out construction in the same vicinity, the same cannot give any right to the petitioners. Two wrongs do not make a right and thus this Court cannot issue a mandate or a direction to perpetuate the wrong any further," the bench observed.With these observations, the bench dismissed the petitions..Senior Advocate Pravin Samdani along with advocates Sujit Lahoti, Ziayad Madon, Parth Shah and law firm Sujit Lahoti & Associates appeared for the Petitioners.Advocate Chinmay Acharya appeared for the proposed Society.Government Pleader Purnima Kantharia along with advocates Sheetal Metakari and Sunil Sonawane represented BMC.Additional Solicitor General Anil Singh along with advocates Aditya Thakkar, Yogeshwar Bhate, Savita Ganoo and Pavan Patil represented the Union Defence Ministry.Additional Government Pleader Abhay Patki appeared for the State.Advocates Sayali Apte, Shreya Shah and PG Lad appeared for MHADA.Advocates Aseem Naphade, Shristi Shetty, Heena Shaikh, Bhavesh Wadhwani and law firm MV Kini & Co. represented Mazgaon Dock..[Read Judgment]