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Authored by - Isha (Intern at Legal Soch Foundation)
Meta Description - The Karnataka high court upholds the fundamental right to carry on one’s occupation and business under Article 19(1)(g) of the constitution, emphasizing that executive actions cannot restrict this right. The court also rules that the Ministry of defence guidelines cannot limit construction near defence installations while defence laws are in force.
In the Case of Jambo Plastics Pvt. Ltd. Versus Chief Quality Assurance Establishment (warship Equipment) the Karnataka high court emphasized that the fundamental right under article 19(1)(g) of the constitution, right to carry on one’s occupation, trade, profession or business cannot be restricted by an executive action. Justice S Sunil Dutt Yadav held that the right of the owner of a property to obtain sanction for a building plan – a “concomitant right of property”- cannot be abridged by an executive fiat like guidelines.
In addition to this the court also held that the guidelines given by Union Ministry of defence for issuing a ‘no objection Certificate’ (NOC) for constructions close to defence installations cannot be relied upon to limit such constructions while the works of defence law is in force.
The Court was in the process of hearing a petition brought forward by Jambo Plastic Private Limited (the petitioners) represented by Advocate Yovini Rohra, challenging the rejection of the Bruhat Bengaluru Mahanagar Palika (BBMP) represented by senior Advocate Manu K and Advocate Sumangala Simimath to grant a building sanction to a residential project by the BBMP.
The BBMP had requested the Jambo Plastics to first obtain a No Objection Certificate (NOC) from the Chief Quality Assurance Establishment (CQAE), a branch of the Ministry of Defence (MoD). However, in July 2016 the defence authorities had rejected the NOC, claiming that the construction put forwaded by the petitioner posed a threat to national security. The court was informed that the decision had been taken on the basis of the guidelines provided by the Central Government. However, the Court conclude that the issue of executive instructions was not necessary when the works of defence law already existed in the field.
The Court also held that a developer's right to engage in an occupation, trade, or business, including the development of property, would fall within the scope of Article 19(1)(g) of the Constitution, which can only be restricted by a law under Article 19(6).
The Court granted interim relief to the petitioner Jambo plastics and ordered the BBMP to consider the possibility of granting sanction without insisting on adhering to the guidelines. The Court also ordered that the process be completed within three months.
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