Marvel Zeta Developers Pvt. Ltd. & Anr. vs The Wing Commander & Ors.

Rule. Rule is made returnable forthwith and heard finally with the consent of the learned counsel for the parties.

By this Petition, the Petitioners impugn the communications dated 24^th November, 2023 and 5^th December, 2023, whereby Respondent Nos. 1 and 2 have refused to extend / revalidate the No Objection Certificate (‘NOC’) granted to the Petitioners for development of the property bearing Survey Nos. 226/1 and 226/2 at Lohegaon, Pune (‘the said land’). Pursuant to the NOC granted earlier on 21^st August, 2013, by Respondent Nos. 1 and 2 and the permissions issued by Respondent Nos. 3 and 4, the Petitioners have already completed Phase-I of the project comprising of 11 buildings. The present dispute concerns the development of Phase-II on the same land, for which Respondent Nos. 1 and 2 have declined to extend / revalidate the NOC.

The material facts giving rise to the present Petition can be briefly stated as under:

On 12^th April 2022, the Petitioners applied to Respondent Nos. 1 and 2, seeking extension/revalidation of the NOC dated 21^st August, 2013 to enable completion of the construction under Phase-II, for which approval had already been granted by Respondent No.3.

On 5^th December 2023, Respondent Nos. 1 and 2 informed the Petitioners of the said rejection, vide a communication, which reads as under :

Mr. Naik, learned senior counsel appearing on behalf of the Petitioners, submits that the statutory map prepared by Respondent No.6, under the Works of Defence Act, 1903 with the approval of Respondent Nos.1 and 2, clearly demarcates the restricted area of 100 metres from the Air Force Station boundary. The Development Plan prepared by Respondent No.3 also reflects the same position and indicates that only a small portion of the said land falls within the restricted zone of 100 metres. These statutory documents cannot be disregarded or ignored by Respondent Nos. 1 and 2.

The Petitioners have also placed on record the extract of the said land from “Google Maps”, updated coordinates and other technical documents demonstrating the distance between the proposed construction and the Air Force Establishment. The impugned refusal to extend or revalidate the NOC. is arbitrary, disproportionate and violative of Articles 14, 19(1)(g) and 300A of the Constitution of India.

Mr. Naik submits that while preparing the building plans, the Petitioners have left this restricted portion completely vacant and no construction has been proposed thereon. It was on this basis that Respondent Nos.1 and 2 granted the NOC dated 21^st August, 2013. Substantial investments of over Rs 162 crores have been made in the project and Phase-I has already been completed. Respondent Nos.1 and 2 cannot treat the entire survey numbers as incapable of development, merely because a small portion thereof is purportedly affected by the statutory restriction. The Petitioners undertake before this Court that they shall not carry out any construction on the restricted portion of the land. In support of his submissions, reliance is placed upon the decisions in Runwal Constructions vs. Union of India and Others^{11.(2021) 3 High Court Cases (Bom) 1} and Nitin Dwarkadas Nyati, through its constituted attorney Srinivas Iyer vs. Union of India through the Secretary, Ministry of Civil Aviation Corporate Head Quarters and Others^{22.2023 SCC OnLine Bom 2311} and submits that the Petition deserves to be allowed.

On the other hand, Ms. Chavan, learned counsel appearing for Respondent Nos.1, 2 and 5 supports the impugned communications. She submits that the Petitioners have concealed the actual distance between the Petitioners land and the boundary wall of the Air Force Station. This is evident from the multiple proposals filed by the Petitioners before Respondent Nos. 1 and 2, wherein the Petitioners have altered plans and the distances shown therein. After several rejections, the Petitioners submitted a fresh proposal on 25^th August, 2023 disclosing that the shortest distance between the proposed construction and the Air Force boundary wall was 107.30 metres. No building or structure can be constructed, erected or no tree shall be planted on any land within the limits of 100 meters from the crest of the outer parapet. Hence, Respondent Nos.1 and 2 have rightly declined to recommend grant of the NOC.

Ms. Chavan further submits that every proposal submitted by the Petitioners has been examined in accordance with the Gazette Notification G.S.R. 751(E), Section 9A of the Aircraft Act, 1934, the Works of Defence Act, 1903 and the other applicable statutory provisions. She also contends that the NOC dated 21^st August, 2013 is illegal as incorrect particulars were furnished in Annexure-F and consequently, the Part OC issued by Respondent No.3 in the year 2022, is also illegal. On these grounds, it is submitted that the Petition is devoid of merit and deserves to be dismissed.

Respondent No.3, Pune Municipal Corporation, in its affidavit-in-reply dated 10^th October, 2025, has substantially supported the Petitioners' case. Mr. Khadapkar, learned counsel for Respondent No.3 submits on the basis of the affidavit that while issuing the Commencement Certificate dated 14^th October, 2010, the area falling within the 100 metres restricted zone was identified with reference to the sketch map prepared under Section 3(2) of the Works of Defence Act, 1903 and no building permission is granted in respect of that portion. The proposed construction is situated outside the restricted area. It is further stated that the sanctioned Development Plan also earmarks the restricted area and the Development Plan Road on Survey No.226, and no building or structure has been permitted within the restricted zone.

We have heard the learned counsel appearing for the parties and have perused the record. The only question that arises for consideration is, as to whether Respondent Nos.1 and 2 are jus-tified in refusing to extend/revalidate the NOC for Phase-II of the Petitioners' project on the ground that the proposed construction falls within the restricted area prescribed under the Works of De-fence Act, 1903. Having considered the entire material before us, in the light of the oral and written submissions of all the parties, in our view, the answer must be in the negative.

Section 3 of the Works of Defence Act, 1903 is quoted as under :

As per Section 3(3), the Declaration issued by Respondent No.5 under Sections 3 and 7 of the Works of Defence Act, 1903 is conclusive proof of the restricted zone and binds all stakeholders.

This Declaration was followed by the Collector's Public Notice dated 9^th April, 2008 and the statutory sketch map was prepared.

The map bears the approval of the competent Defence Authorities and constitutes the statutory demarcation of the restricted area. The map, read together with the sanctioned Development Plan and the sanctioned layout plans, shows that only a small portion of Survey No.226 falls within the restricted zone of 100 metres.

It is also an admitted position that no construction has either been sanctioned or carried out on that restricted portion.

Respondent No.3 Corporation has, in its affidavit dated 10^th October 2025, affirmed that while granting the commencement certifi-cates and the Part OC, the restricted portion was specifically ex-cluded from the development and no building permission was granted in respect thereof. It is apposite to reproduce the relevant portion of the affidavit filed by Mr. Prashant Waghmare, City En-gineer, Municipal Corporation of the City of Pune, on behalf of Re-spondent Nos.3 and 4, here under:

Once the restricted portion is excluded from development, Respondent Nos.1 and 2 cannot proceed on the premise that the entire survey number or the entire project is incapable of development. In the absence of any subsequent statutory exercise modifying the original demarcation, Respondent Nos.1 and 2 cannot disregard the contemporaneous documents including the sketch map, by adopting an inconsistent administrative stand. A position already taken by the concerned authorities on the basis of which, the construction of Phase-I was already completed, cannot be resiled from by the said authority. Hence, in our view, the impugned communications cannot be sustained.

We are unable accept the case/stand now sought to be advanced by Respondent Nos. 1 and 2 that the NOC granted by it on 21^st August, 2013 is illegal. We find that there has been no change whatsoever in the factual or legal position after issuance of the original NOC in the year 2013. The defence establishment continues to remain at the same location. The statutory notification issued under the Works of Defence Act, continues to operate. The Collector's sketch map has not been modified. The Development Plan remains unchanged. The survey numbers are identical. The extent of the restricted area is also unchanged. Respondent Nos.1, 2 and 5 have not produced any fresh notification or revised Collector’s map or demarcation under the Works of Defence Act, 1903 to show that the proposed building now falls within the prohibited area. Thus, Respondent Nos.1 and 2 are pleading contrary to its own record and are adopting a diametrically opposite stand while considering the Petitioners' request for extension/revalidation of the NOC. The reasons that were valid at the time of granting the necessary permissions for the construction of Phase-I, in the absence of any change of any nature whatsoever in the factual position, leaves no scope for the said authorities, to now claim that their earlier decisions were flawed.

We also cannot ignore the fact that acting upon the said NOC, Respondent No.3 granted successive commencement certificates. Eleven residential buildings forming Phase-I are completed and a Part OC was issued as recently as on 21^st July, 2022. Thus, valuable third-party rights have been created. Respondent Nos.1 and 2 have not cancelled the NOC dated 21^st August, 2013 due to any alleged incorrect particulars or suppression, in the last thirteen years. The Respondents cannot now indirectly nullify their own NOC by refusing its continuation. Such an approach is arbitrary and legally impermissible.

For the same reasons, the consequential submission of Respondent Nos. 1 and 2 that the Part OC issued by Respondent No.3 is illegal, is equally untenable. The said certificate has been consciously granted by the Planning Authority in exercise of its statutory powers under the applicable planning laws. Respondent Nos.1 and 2 cannot, by way of an affidavit filed before this Court, declare a statutory permission granted by another competent authority, to be illegal, and that too after a period of more than 13 years. The Part OC having not been set aside by a competent forum in accordance with law, well within time, it is now unconscionable for a statutory authority, to suddenly take an unjustified opposite stand. The statutory permissions granted 13 years ago, will continue to remain valid and binding.

We are also unable to accept the contention that because Survey No.226 is referred to in the Public Notice issued under the Works of Defence Act, the entire survey number must necessarily be regarded as falling within the prohibited area. Acceptance of the Respondents' contention would lead to manifestly absurd consequences. It would imply that even where only a negligible portion of an extensive parcel of land falls within the restricted zone, the entire land would become incapable of development, irrespective of the location of the proposed construction. The impugned decision is, therefore, arbitrary and violative of Article 14 of the Constitution. It also places an unreasonable restriction upon the Petitioners' right to carry on business guaranteed under Article 19(1)(g) and unjustifiably interferes with their proprietary rights protected under Article 300A.

A reference can be made to a decision of this Court in Runwal Constructions (Supra). The subject plot therein fell partly within the restricted zone as notified under the Work of Defence Act 1903. A Co-ordinate Bench of this Court held that where restrictions are imposed by exercising powers under Work of Defence Act, the authorities cannot impose additional restrictions beyond the notified zone through executive communications. The relevant paragraph 91 reads as under :

The Petitioners have also undertaken before this Court that they shall not undertake any construction whatsoever, on the portion of the land falling within the restricted area. The sanctioned layout proceeds on this basis.

Consequently, the apprehension sought to be projected by Respondent Nos.1 and 2, would stand adequately addressed.

We also find no merit in the submission pleaded by Respondent No.1 and 2, as set out in the affidavit in reply, that there is no mechanism for extension or revalidation of an NOC. The material placed before us indicates that Rule 9A, introduced by the 2020 Amendment Rules, recognises the validity and continuation of NOCs in respect of large development projects. The Petitioners are not seeking a fresh permission for a new project. They merely seek continuation of the NOC for completion of the balance Phase-II construction. The Petitioners have also placed on record instances when Respondent Nos.1 and 2 have themselves granted NOCs with extended validity for other projects in the same vicinity. No rationale has been shown to us for adopting a different standard in the Petitioners' case.

For all the aforesaid reasons, we are satisfied that the impugned communications dated 24^th November, 2023 and 5^th December, 2023 cannot be sustained. This Petition is, therefore, partly allowed in the following terms:

Rule is made partly absolute in the aforesaid terms. There shall be no order as to costs.