Indra Prasanna Mukerji, J.@mdashBefore commencement of hearing of this writ application, I had invited the views of the parties as to whether I should release this application on the ground that I am a resident of the Hastings area. Learned Counsel for the parties came back and said that they had no objection if this Court entertained the writ application. The sixth respondent was, till this writ was filed by the army in 2011, in the process of rapidly constructing and making ready a fourteen storied hotel in Hastings in Kolkata. The General Officer Commanding caused this writ application to be moved, when on 30th September, 2011, an interim order was passed directing the Kolkata Municipal Corporation not to grant any occupancy certificate to the hotel. Fourteen stories of the hotel had already been erected when this writ application was filed in this Court.
2. The army called for its demolition. Its ground was that the location, height and the proposed user of the hotel were not congenial to the security of Fort William, an army establishment within a radius of 1.5 kilometers or so from the hotel.
3. It was submitted by Mr. Bhattacharya that an unlimited number of persons, including foreigners would come into the hotel. It was possible for them, even if remotely, to keep some track of activities in Fort William. This was disputed by the sixth respondent.
4. Three provisions of the Kolkata Municipal Corporation Act, 1980 were invoked by the army authorities. I insert them hereunder:-
627. Control by General Officer Commanding the Presidency District over Government lands and buildings.--Notwithstanding anything contained in this Act, all land and buildings belonging to Government in that part of Hastings which is included in Kolkata shall be subject to the control of the General Officer commanding the Presidency District:
Provided that this section shall in no way derogate from the powers vested in the Corporation or any other municipal authority under this Act enabling the Corporation or such authority in the interests of the public health to require the owner or occupier of any land or building in such part of Hastings to remedy or abate any sanitary defects on or in such land or building.
628. Sanction of Central Government required for erection of masonry building.--The Corporation shall not give or be deemed to have given permission to erect a masonry building in that part of Hastings which is included in Kolkata unless and until the sanction of the Central Government has been obtained; and such sanction shall not be applied for unless the plan of the building and the site-plan of the land are approved by the Commissioner of Police.
629. Demolition or alteration of buildings erected without such sanction.--(1) If the erection of any masonry new building in that part of Hastings which is included in Kolkata is, after the commencement of this Act, commenced, carried on or completed without obtaining the sanction of the Central Government, the Municipal Commissioner shall, if requested by the General Officer Commanding the Presidency District to do so,--
(a) by written notice direct the owner to demolish or alter the building, or
(b) himself cause the building to be demolished or altered at the expense of the owner.
(2) No person shall be entitled to any compensation on account of such demolition or alteration.
5. First of all, a meaning has to be ascribed to the expression "In that part of Hastings which is included in Kolkata". It is very necessary because in other areas buildings can be erected with the sanction of the Kolkata Municipal Corporation. In this particular area the sanction of the Central Government or in other words the permission of the army is also required.
6. According to Mr. Bhattacharya, the area included in the jurisdiction of the Hastings Police Station or the Hastings Post Office would be a good indication, as this particular area has not been defined in the Act or elsewhere.
7. To my mind, the area, as understood by the army to be falling in this area over a long period of time is relevant. This is so because they have perceived this particular area as being important for security reasons.
8. As long ago as 1909, a plan of the Calcutta Maidan area was prepared by the army where an area was shaded in blue and marked No. 3. This was explained in the footnote as "boundary FW controlled by local Government". Obviously F.W. referred to Fort William. I was shown this 1909 plan by Mr. Shaktinath Mukherjee, learned Senior Advocate appearing for the respondent No. 6. I am fortified in my view because in paragraph 4 of this writ petition the Hastings area was described as one which fell within the blue zone of the Calcutta Maidan area, which simply meant the blue zone delineated by the above map.
9. Another copy of that map of 1909 was produced by learned Counsel for the sixth respondent to show the exact location of the hotel which was marked with a red dot. Its location in the map seems to show that the hotel falls just outside the blue area.
10. If this factual situation is true, then the location of the hotel is outside the Hastings area as understood by the army. No sanction of any plan of a building is required to be made by the army.
11. Now, I come to the second point. Mr. Mukherjee referred me to the guidelines for issue of a no objection certificate (NOC) for building construction in the vicinity of the army installation issued by the Central Government on 16th May, 2011. It, inter alia, states that where the local municipal laws do not require consultation with the army before sanction of a building plan, any building within a 100 meters and in case multi-storied buildings within a 500 meters radius of a military installation would be a security hazard.
12. According to Mr. Mukherjee, the location of the hotel is about 1.5 kilometers from Fort William. Mr. Bhattacharya submitted that this circular applied to non-municipal areas.
13. I do not think that the circular makes any exception to that effect. It refers to the case of Sukna in West Bengal and Adarsh in Maharashtra. These guidelines in my opinion refer to building construction near army installations, in general with particular reference to these places.
14. Considering the aforesaid facts, I am of the opinion that in this case the requirements of the aforesaid provisions of the Kolkata Municipal Corporation Act, 1980 and the requirements of this case demand that military authorities determine their own jurisdiction first. Thereafter the question will arise whether they can withhold sanction of the concerned plan or not.
15. Therefore, I direct the Secretary, Ministry of Defence himself or through his delegate to determine, within eight weeks of passing of this order, the question whether the above hotel falls in an area where sanction of the Central Government or the army has to be taken before erection of a building? If the answer to the question is "no", the building plans of the hotel in question will be released by the army without taking any action. If the answer to the question is "yes", then the authority concerned will determine whether in view of the circular dated 16th May, 2011, the army is entitled to interfere in the construction of the hotel?
16. The determination should be by a reasoned order following the observations and guidelines given above and upon giving an opportunity of being heard to the writ petitioner.
17. The interim order passed in this writ will continue for a period of twelve weeks from date or until further orders of a competent Court whichever is earlier to enable either party to take steps in terms of the determination. I make it clear that the demolition of the hotel will not be undertaken by the army without a specific order from a competent Court.
18. This writ application is disposed of by the above order. Each of the above three general applications is disposed of, if not disposed of earlier.
19. The above two plans are taken on record. In the departmental proceedings referred to above, copies of those plans as certified by the Assistant Registrar of this Court, can only be used. All parties concerned including the Assistant Registrar of this Court to act on a signed photocopy of this order upon the usual undertakings.
