Guidelines cannot overrule legislation governing relevant subject matter: Karnataka HC on building near defence establishment

The Ministry of Defence argued before the court that as per guidelines, the local military authority had to give the NOC if construction was within 100 metres, and in case of a multistorey building, 500 metres of the compound wall. In this case, the defence establishment is a premier quality assurance establishment under the Department of Defence Production, it argued.

On the other hand, the petitioners argued that there cannot be recourse to exercising executive powers through guidelines when the Works of Defence Act, 1903, occupied the field.

A single-judge bench of Justice Sunil Yadav agreed and noted, “When the legislative scheme contained in the Act provides for a methodology for imposition of restriction regarding proposed constructions in the vicinity of a Defence Establishment, there cannot be resort to exercise of Executive power for imposing of such restrictions….When power is required to be exercised under the statute in a particular manner, there cannot be recourse to achieve the same consequence in a different manner by recourse to exercise of Executive power. ” The bench also noted that such an “executive fiat” would interefere with the constitutional right of the petitioner of right to property.

The bench also pointed out that the guidelines were not in the name of the President, observing, “Article 77(1) stipulates that all Executive action of Government of India shall be expressed to be taken in the name of the President and accordingly, Rules made by the President under Article 77(3) are also required to conform with the condition that exercise of Executive power must be in the name of the President.”

The court then directed the BBMP to consider sanctioning the building plan, starting from when it was stopped by considering guidelines.