Hon'ble Raghvendra Kumar, J.
Heard Shri B.P. Verma, learned counsel for the petitioners and Shri Rajesh Tripathi for respondent nos. 1 to 3.
Petitioners have approached this Court challenging the letter dated 15th March, 2014 communicated to him by the office of the City Magistrate, Mathura that Military authorities have refused to grant No Objection Certificate for construction of multi-storied building adjacent to A-1 defence land.
Petitioners claiming to be bhoomidhar of plot nos. 228, 229, 230, 231, 234 and 235 situate in Gram Narhauli, Tehsil Sadar, District Mathura after seeking a declaration under Section 143 of the U.P.Z.A. & L.R. Act, which was duly granted vide order dated 20th June, 2003, started some constructions over the said land, which was objected by the officers of the Station Headquarter, Mathura Cantt. and they forcibly stopped the construction for want of No Objection Certificate from the army authorities. Petitioners made an application dated 27.10.2011 before the City Magistrate for obtaining No Objection Certificate from the Station Headquarter, Mathura Cantt. in accordance with the guidelines issued by the Government of India, Ministry of Defence dated 18th May, 2011.
However, when no decision was taken despite various communication and letters, the petitioners approached this Court by filing Writ Petition No. 37904 of 2013, which was disposed of vide order dated 16.07.2013 requiring the petitioner to make a fresh representation before the competent authority, who in turn, was directed to take appropriate decision with all expedition, preferably within a period of two months from the date of receipt of the application. Still when no decision was taken, the petitioner was compelled to file a Contempt Application No. 6192 of 2013, which was also disposed of giving one more opportunity to the authorities to take decision in the matter. Thereafter, the petitioner was informed vide impugned order dated 15th March, 2014 addressed to the City Magistrate that Military authorities have not agreed to grant No Objection Certificate for construction of multi-storied building on account of the fact that the land on which the building was proposed to be constructed, was adjacent to A-1 defence land.
Learned counsel for the petitioners contends that the order is bad in law inasmuch as it does not record any reason for rejecting the claim of No Objection Certificate to the petitioners. He further points out that it was categorically brought to the notice of the authorities that the plot in dispute over which the construction is sought to be raised by the petitioner, is surrounded by residential colony on western side and a market on the northern side, and on the southern side, there is a railway line. He further points out that the authorities were duly informed by the petitioners that they do not intend to raise any multi-storied construction, but only ground and first floor are to be constructed and without considering these aspect of the matter, the No Objection Certificate has been refused.
A counter affidavit has been filed by the respondent-authorities stating that the khasra plot no. 236, which is A-1 defence land, is being managed by local Military authorities for the purpose of Army, i.e., training activities, control of vehicle movement, establishing of communication, attachments alongwith equipments and loading/unloading of military stores as a part of Ordinance Depot Unit during operations and mobilization for war. It is further alleged that the land is kept barren being camping ground for accretion forces for Northern and Western sector in war. The counter affidavit further refers to a policy decision taken by the Ministry of Defence, Government of India for issuing No Objection Certificate.
A perusal of the policy enclosed as Annexure 2 to the counter affidavit goes to show that same was issued in order to strike a balance between the security concerns of the forces and the right of public to undertake the construction activities on their land. The relevant provisions of the said policy are quoted hereunder.
"(a) In places where local municipal laws require consultation with the Station Commander before a building plan is approved, the Station Commander may convey its views after seeking approval from next higher authority not below the rank of Brigadier or equivalent within four months of receipt of such requests or within the specified period, if any, required by law. Objection/views/NOC will be conveyed only to State Government agencies or to Municipal authorities, and under no circumstances shall be conveyed to builders/private parties.
(b) Where the local municipal laws do not so require, yet the Station Commander feels that any construction coming up within 100 meter (for multistorey building of more than four storeys the distance shall be 500 meters) radius of defence establishment can be a security hazard, it should refer the matter immediately to its next higher authority in the chain of its command. In case the next higher authority is also so convinced, then the Station Commander may convey its objection/view to the local municipality or State Government agencies. In case, the municipal authority/State Government do not take cognizance of the said objection, then the matter may be taken up with higher authorities, if need be through AHQ/MoD.
(c) Objection/view/NOC shall not be given by any authority other than Station Commander to the local municipality or State Government agencies and shall not be given directly to private parties/builders under any circumstances.
(d) NOC once issued will not be withdrawn without the approval of the Service Hqrs."
A perusal of the impugned order goes to show that it does not record any reason for rejecting the No Objection Certificate nor there is any material to indicate that provisions of the Policy quoted hereinabove, were followed while considering the application of the petitioner for No Objection Certificate.
No doubt, the concerns of the security of the country is supreme, but the petitioner, as a citizen of this country, in the least is entitled for a reasoned order, in case, his claim was liable to be rejected. Though, the respondent authorities have tried to justify the rejection by setting out some reasons in the counter affidavit, but it is well settled that the reasons should be reflected from the order and no amount of reasons supplemented in the affidavits filed during judicial review of the action, can justify the same.
Reference may be made to the judgment of the Hon'ble Apex Court in the case of Commissioner of Police Vs. Gordhandas Bhanji, AIR 1952 SC 16, wherein it was held as under.
"9. ... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
This proposition has been quoted with approval in para 8 by a Constitution Bench in Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405, wherein Krishna Iyer, J. has stated as follows:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
In the case of Rashmi Metaliks Limited & Anr. Vs. Kolkata Metropolitan Development Authority & Ors., (2013) 10 SCC 95, the Hon'ble Apex Court held that during judicial review of an administrative action, the order must be examined with reference to the grounds set out in the order itself and not with reference to any fresh ground brought out subsequently and a ground not adopted or expressed in the impugned administrative order, cannot be sought to be raised to justify its validity.
In such view of the matter, in our considered opinion, the impugned order being cryptic and without containing reason on which the decision is predicated, is not liable to be sustained. As a result, the writ petition succeeds and stands allowed.
The impugned order dated 15th March, 2014 is hereby set aside. The respondent authorities are directed to reconsider the application of the petitioner for grant of No Objection Certificate afresh in accordance with the provisions of the Policy dated 18th May, 2011 by passing a reasoned order expeditiously, preferably within a period of six weeks from the date of production of a certified copy of this order.
However, in the facts and circumstances, there shall be no orders as to costs.
21.01.2016 VKS