The Karnataka High Court has emphasized that the fundamental right to carry on one’s vocation, trade, profession, or business under Article 19(1)(g) of the Constitution cannot be limited by executive action. [Jambo Plastics Pvt. Ltd v. Chief Quality Assurance Establishment (Warship Equipment)]
The right of the owner of a property to get permission for a building design – a “concomitant right of property” – cannot be shortened by an executive fiat like the guidelines, according to Justice S Sunil Dutt Yadav
“The right to carry on occupation, trade, or business, including developing property, would be a right falling within Article 19(1) (g) of the Indian Constitution, and restrictions to be imposed upon such right under Article 19(1)(g) would be only by a law under Article 19(6), which is by a legislative law and cannot be by an Executive action,” the Court held.
The Court further ruled that guidelines issued by the Union Ministry of Defence for the issuing of a ‘No Objection Certificate’ (NOC) for projects near defense sites cannot be used to limit such structures when the Works of Defence Act is in effect.
The Court noted that the recommendations have no place when the sector is occupied by law – Works of Defence.
According to the authorities involved, these recommendations were given by the Government of India (Transaction of Business) Rules, 1961, as well as the Government of India (Allocation of Business) Rules, 1961. However, the judge was unimpressed by the claim since the instructions were not published in the name of the President, as required by Article 77 (1) of the Indian Constitution.
“Accordingly, the Guidelines would be illegal insofar as they infringe upon the right of petitioner No.1 [property owner] to enjoy his property,” the Court said.
The Court was hearing a plea from petitioners Jambo Plastics Private Limited and Merushikhar Infra.
The petitioners were dissatisfied with the Bruhat Bengaluru Mahanagar Palika’s (BBMP) rejection to provide construction permission for a residential project.
The BBMP had required that the petitioners first get a NOC from the Ministry of Defence’s Chief Quality Assurance Establishment (CQAE) (Warship Equipment).
In July 2016, the defense officials refused the NOC, claiming that the petitioners’ construction posed a security risk. According to the Court, the judgment was made in accordance with the rules set by the Central Government.
However, the Court ruled that such presidential directives were unnecessary since the Works of Defence Act already occupied the field.
“When the legislative scheme contained in the Act provides for a methodology for imposition of restrictions regarding proposed constructions in the vicinity of a Defence Establishment, there cannot be resort to the exercise of Executive power for imposing such restrictions,” the Court said.
The Court went on to say that where such authority is needed to be employed in a certain way through a legislation, “there cannot be recourse to achieve the same result in a different manner by recourse to Executive power.”
The Court also found that a developer’s right to carry on occupation, trade, or business, including the business of developing land, would constitute a right protected by Article 19 (1) (g) of the Constitution, which may be limited only by legislation.
The Court granted relief to the petitioners and instructed the BBMP to proceed with penalty consideration without insisting on conformity to the guidelines.
The Court mandated that the procedure be finished within three month
Yovini Rajesh Rohra, an advocate, represented Jambo Plastics and Meushikhar Infra.
The Chief Quality Assurance Establishment (Warship Equipment) was represented by Advocate MN Kumar.
The BBMP’s Commissioner and Joint Director (Town Planning-South) were represented by Senior Advocate Uday Holla, Advocate Manu K, and Advocate Sumangala Simimath.
This is written by Ms. Anchal Stydent of Maharishi Dayanand University
0 Comments