//
you're reading...
legal issues

Municipal Corporation of Greater Mumbai (for short, ‘the Corporation’) – Regulation 16(a), (b), (n) read with Regulation 64(b) read with section 46 of the M.R.T.P. Act. – Maharashtra Pollution Control Board (MPCB) for grant of environmental clearance for change of use of land purchased in industrial zone for purpose of raising commercial and residential buildings – Corporation granted permission despite of objections – D.B. High court set aside the orders of Mumbai corporation and also directed to consider afresh taking in to consideration of security threats etc. – Apex court dismissed the appeal and confirmed the high court orders = Oswal Agro Mills Ltd. … Appellant versus Hindustan Petroleum Corporation Ltd. and others … Respondents = Published in / cited in / Reported in judis.nic.in/supremecourt/filename=41064

Municipal  Corporation of Greater Mumbai (for short, ‘the Corporation’)  – Regulation

 

Municipal Corporation of Greater Mumbai

Municipal Corporation of Greater Mumbai (Photo credit: Wikipedia)

 

16(a), (b),  (n)  read  with  Regulation  64(b)  read  with section 46 of the M.R.T.P. Act. – Maharashtra  Pollution Control Board (MPCB) for grant of environmental clearance for change of use of land purchased in industrial zone for purpose of raising commercial and residential buildings – Corporation granted permission despite of objections – D.B. High court set aside the orders of Mumbai corporation and also directed to consider afresh taking in to consideration of security threats etc.  – Apex court dismissed the appeal and confirmed the high court orders  = 

 

 

 

 

 

Division Bench of the Bombay High Court allowed the writ petition  filed  by

 

respondent No.1-Hindustan Petroleum Corporation Ltd. (HPCL) and quashed  the

 

sanction accorded by the competent authority of  the  Municipal  Corporation

 

of Greater Mumbai (for short, ‘the Corporation’)  for  change  of  user  and

 

construction of residential and commercial complex on land bearing CTS  Nos.

 

381 and 381/1 to 22, Village Anik, Taluk Chembur, MSD, Mumbai  and  directed

 

the Municipal Commissioner to reconsider the application made by Oswal  Agro

 

Mills Ltd. (hereinafter described as “the appellant”) keeping  in  view  the

 

objections raised by the Police Department, Ministry of Petroleum,  Ministry

 

of Environment and Intelligence Bureau and the Security Control  Regulations

 

issued  by  the  State  of  Maharashtra  under  Section  37  (1AA)  of   the

 

Maharashtra Regional and Town Planning  Act,  1966  (for  short,  ‘the  1966

 

Act’).  =

 

 

 

As stated above, in our view the security threat  is

 

clearly placed on record, as also the possible danger to the health  of  the

 

occupants of the buildings already constructed  and  to  be  constructed  as

 

well.  

 

The order of the High Court  has  set  aside  all  the  approvals  in

 

favour of Oswal.  

 

It has  taken  care  of  some  of  these  issues  when  it

 

directed the Municipal Commissioner to reconsider the  application  made  by

 

Oswal after  considering  

 

(a)  the  objections  of  the  Police  Department,

 

Ministry of Petroleum,  Ministry  of  Environment  and  Intelligence  Bureau

 

report, and also the Security Control Regulations framed  by  the  State  of

 

Maharashtra.  

 

(b) The High  Court  has  also  directed  that  the  Municipal

 

Commissioner will pass  the  order  after  hearing  the  parties  and  after

 

considering the views expressed by the High Court  and  in  accordance  with

 

law.    

 

In  addition,  we  further  direct  the  Municipal  Commissioner  to

 

consider the issue of possible danger to the health of the occupants of  the

 

buildings  already  constructed,  and  those  to  be  constructed   by   the

 

appellants, as desired by Singhvi, J..  He has referred to the statement  in

 

the affidavit of Vice-President of the appellant that  HPCL  is  seeking  to

 

make the property of Oswal sterile and  unbuildable  without  acquiring  the

 

same.  

 

The  parties  can  certainly  utilise  the  time  now  available  for

 

appropriate and fruitful negotiations in this behalf.   And,  in  any  case,

 

Oswal can certainly use the land for an  agro-industry  or  any  permissible

 

industry.

 

18.         This being the position, we  cannot  find  any  fault  with  the

 

impugned judgment and order of the High  Court,  and  it  need  not  be  set

 

aside.  

 

On  the  contrary,  these  two  appeals  deserve  to  be  dismissed.

 

Accordingly, we pass an order dismissing  these  two  appeals.  The  parties

 

will bear their own costs.

 

                        

 

 

 

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10933 OF 2013
(Arising out of SLP(C) No.14202 of 2012)
Oswal Agro Mills Ltd. … Appellant
versus
Hindustan Petroleum Corporation Ltd. and others … Respondents
With

 

CIVIL APPEAL NO. 10934 OF 2013
(Arising out of SLP(C) No.30858 of 2012)

 

J U D G M E N T

 

G.S. SINGHVI, J.

 

1. Leave granted.

 

2. These appeals are directed against order dated 12.4.2012 by which the
Division Bench of the Bombay High Court allowed the writ petition filed by
respondent No.1-Hindustan Petroleum Corporation Ltd. (HPCL) and quashed the
sanction accorded by the competent authority of the Municipal Corporation
of Greater Mumbai (for short, ‘the Corporation’) for change of user and
construction of residential and commercial complex on land bearing CTS Nos.
381 and 381/1 to 22, Village Anik, Taluk Chembur, MSD, Mumbai and directed
the Municipal Commissioner to reconsider the application made by Oswal Agro
Mills Ltd. (hereinafter described as “the appellant”) keeping in view the
objections raised by the Police Department, Ministry of Petroleum, Ministry
of Environment and Intelligence Bureau and the Security Control Regulations
issued by the State of Maharashtra under Section 37 (1AA) of the
Maharashtra Regional and Town Planning Act, 1966 (for short, ‘the 1966
Act’).

 

3. The appellant purchased the land in question from Union Carbide Ltd.
in 1989 with the permission of the State Government. In the development
plan of the area, the land was shown as included in Special Industrial Zone
(I-3 Zone). In 2005, respondent No.1 acquired land bearing CTS Nos. 382 and
382/1 to 66 of Village Anik, which is located at a distance of 430-450
meters from the appellant’s land from Ahmedabad Printing and Calico Mills
Company Ltd. for construction of storage tanks.

 

4. On 17.3.2006, the appellant made an application to the Industries
Department of the State Government for change of land use. The State
Government informed the appellant that the Industries Department can give
NOC for industrial purpose keeping in view the locational policy, which did
not contain any provision for change of land use and that change of user
was within the jurisdiction of the Planning Authority.

 

5. The appellant also made an application to the Maharashtra Pollution
Control Board (MPCB) for grant of environmental clearance. Thereupon, MPCB
issued notice dated 19.6.2006 and invited objections against the proposed
grant of environmental clearance to the appellant’s project. Respondent
No.1 filed objections dated 11.7.2006 and pleaded that permission sought by
the appellant should be rejected because its refinery was very close to the
appellant’s land and construction of building would be a security threat to
the large tanks proposed to be installed for storage of crude oil and
finished petroleum products on the plot purchased from Calico Mills Company
Ltd. Another plea taken by respondent No.1 was that there were several
major industrial units in the industrial zone and setting up residential or
commercial complex in that zone next to the refineries was risky and
hazardous and was not in public interest. Respondent No.1 sent similar
communication dated 17.7.2006 to the Corporation. The latter sent
communication dated 26.10.2006 to the Under Secretary, Urban Development
Department informing him about the objections raised by respondent No.1 and
pointed out that proposal of the appellant cannot be withheld under the
existing rules and regulations because issues of safety and security were
not within its jurisdiction. The Corporation also suggested that a strip of
land could be left around the premises as buffer for additional safety of
the installation of the refinery and surveillance could be kept by
installing CCTV cameras, etc. The Labour Commissioner, to whom a copy
of application dated 17.3.2006 had been forwarded, sent communication dated
18.11.2006 to the Corporation that he had no objection to the issue of NOC
to the appellant. He also mentioned that dues of workers had already been
paid.

 

6. After one year and one month of the submission of application by the
appellant, the Corporation addressed letter dated 21.4.2007 to the Under
Secretary, Urban Development Department seeking his advice on the
objections raised by respondent No.1. In that letter it was mentioned that
colony of HPCL officers was situated on North-East side of the appellant’s
plot, residential quarters of Maharashtra State Electricity Board were
abutting the plot and a number of Slum Rehabilitation Schemes were in place
around the disputed plot.

 

7. While the appellant’s application was pending, respondent No.1
addressed letters dated 26.10.2007 and 3.6.2008 to the State Government
raising objections against the proposal of M/s. Metal Box Ltd. and M/s.
Apar Industries to construct residential and commercial complex on plots
adjacent to its refinery. In reply, the Corporation sent letter dated
22.7.2008 to the Chief Manager of respondent No.1 for issue of NOC for
construction of tenements meant for project affected persons under the Slum
Re-development Scheme under Clause 33(10) of Development Control
Regulations (for short, “DC Regulations”) .

 

8. By letter dated 25.7.2008, the Corporation informed the Director of
Refineries, HPCL that Slum Rehabilitation Authority had approved the plan
on the Metal Box plot and letter dated 26.10.2007 sent by respondent No.1
has been forwarded to the Executive Engineer (SRA).

 

9. Vide letter dated 21.10.2008, the Ministry of Environment and Forests
(MoEF) granted environmental clearance to the proposed construction of
commercial buildings consisting of Wings A, B, C and D (G+7), office
building (S+8), amenity building (G+2) and S1-S8 buildings (G+7) on the
appellant’s plot under category 8 (b) of EIA notification 2006 subject to
strict compliance of specific and general conditions contained in the
letter.

 

10. In the meanwhile, Bharat Petroleum Corporation Limited (BPCL) filed
Writ Petition No.1891/2007 against the State of Maharashtra and others.
BPCL also applied for an interim injunction against the construction of
residential building. One of the grounds taken by BPCL was that Development
Plan had been altered ignoring the threat perception to its refinery. By an
order dated 11.12.2008, the Division Bench of the High Court declined the
prayer for interim injunction by recording the following reasons:

 

“2. The land which is the subject matter of dispute belonged to
Mafatlal Group. Mafatlal’s entered into M.O.U. with Petitioner No. 1
to sell the land for housing of the Petitioner’s staff and workers by
agreement dated 23.5.1982. On 25.1.1990, an order came to be passed
under the Urban Land Ceiling Regulation Act, 1976 granting exemption
to the land for development for housing the staff of the Petitioner
No. 1. In the D.P. Plan notified in the year 1992, it was shown as
reserved for housing of the staff of the Petitioner. As the Petitioner
did not show interest, Mafatlal entered into an agreement with
Eversmile who proposed to the Petitioner to purchase the flats which
they would construct, which proposal however was not accepted.

 

The Petitioner thereafter sought to acquire the land and this was
informed by communication dated 4.8.1992 by the Petitioner to
Respondent No. 1. The land was not acquired by the Petitioner though
the persons who had acquired interest in the land were willing for
acquisition. One of the reasons appears to be that the Petitioners did
not want to pay for the land which was to be kept open.

 

3. On 17.7.1999, a corrigendum was issued to the exemption
Notification under Urban Land Ceiling Act and the land consisting part-
A was tobe developed as per the policy of S.R.A. and the land occupied
at Part-B was to be developed as per order of the Government.

 

The Petitioner was also in touch with NEERI who in their communication
dated 19.1.2000 noted that the construction of housing complex for
2000 buildings was in full swing. They had raised some objections from
the environment point of view. The Petitioner also approached the
Intelligence Bureau. By letter dated 5.7.2000, the Intelligence Bureau
informed that considering the threats and as the land belonged to
private persons, it should be purchased along with the existing
structure.

 

The Petitioner in a communication dated 4.12.2006 addressed to the
Secretary, Ministry of Environment and Forest, Government of India
pointed out that the construction activities were going on since 1999-
2000 but the work was stopped because of CRZ violation and the
construction activities are likely to be resumed.

 

4. The main contention urged on behalf of the Petitioners has been
that while making alterations in the D.P. Plan, the threat perception
to the refinery of the Petitioners ought to have been taken into
consideration and that due notice was not given to them. In the
instant case, as may be noted, the plan as notified in the year 1992
itself showed that the land was reserved for housing of the staff of
the Petitioner. This has now been changed for S.R.A. and other
purposes which are residential. Therefore, the land since the year
1992 was reserved for residence. The Petitioner in the year 1992 did
not raise any objection to the land which was reserved for residence
and on the contrary they wanted the land for housing their staff. The
correspondence further indicates that the construction activities has
commented from the year 1999-2000, though for some time in view of
C.R.Z. violation that could not be proceeded with.

 

5. Further from the material before us, it is clear that in the
vicinity of the Petitioner’s project, there are other constructions
which are existing including residential buildings. Eversmile has
commenced construction of buildings under .S.R.A. project. The
Petitioners allowed the said construction to come up by maintaining
silence for long period of time. They have neither purchased the land
nor acquired it. Considering the fact that there are already other
buildings and as the respondent developers have commenced construction
by spending large amount of money, in our opinion, the contention of
the Petitioners that on account of “security risk” the respondent
should be restrained at the interim stage from constructing on the
land on facts here cannot be granted. The delay must be held against
the Petitioners, as also the fact that since 1992, the land has been
reserved for housing. Though we have granted rule that by itself
cannot result in granting interim relief, which must be considered on
the basis of well known principles of grant of interim relief.

 

6. On behalf of the Respondents, their counsel had sought to argue
that the Petition itself ought not be be admitted and had relied on a
large number of judgements including the judgment of this court in the
case of BEST Workers Union Vs. State of Maharashtra 20085 All M.R.
848. Considering the contentions advanced based on the D.C.
Regulations which though were also under consideration in the case of
BEST Workers Union (supra), we have admitted the Petition. However, as
noted earlier the gross delay and the fact that Respondent Builders
have invested large amounts on the project which is being constructed
under the S.R.A. Project, would be a relevant fact not to exercise
discretion in favour of the Petitioner.”

 
11. After grant of environmental clearance, respondent No.1 sent letters
dated 14.1.2009 and 23.2.2009 to Deputy Director, Town Planning reiterating
its objection to the construction of buildings by the appellant. On
27.2.2009, the State Government issued notice in the light of the
recommendation made by Upa Lokayukta to prepare Security Control Rules and
accepted the report of the Expert Committee for framing Special Regulations
for safety of the buildings from terrorist attack, the requirement for
electrical and electronic system, fire, etc. Thereafter, the State
Government issued instructions vide letter dated 21.3.2009 addressed to the
Municipal Commissioner for implementing the Security Regulations.

 

12. In view of the communications sent by the State Government,
respondent No.1 sent letter dated 5.5.2009 to the Chief Secretary to
highlight the security threat to its refinery due to the SRA Scheme and
requested that 56 SRA buildings be acquired for housing police personnel as
has been done in the case of SRA buildings constructed near the BPCL
refinery.

 

13. By an order dated 1.9.2009, the Municipal Commissioner accorded
sanction for change of user of the appellant’s plot in the light of
Regulation 57(4)(c) of the DC Regulations subject to the requirement of
obtaining NOCs from different authorities. After about two months,
appellant submitted proposal for amalgamation / sub-division of the plot.
The Corporation considered the proposal and approved the same vide letter
dated 10.6.2010 subject to the additional conditions including the one that
amenity space shall be handed over to the Corporation. On 11.11.2010, the
Corporation issued Intimation of Disapproval to the appellant and on
28.12.2010, the Corporation granted permission to the appellant for
handling, storage, transportation and disposal of waste generated due to
construction of building. Subsequently, the Corporation vide its letter
dated 7.1.2011 issued NOC to the appellant regarding fire protection and
fire fighting requirements in respect of the proposed construction of high
rise residential building No.9. The Corporation also granted commencement
certificate to the appellant.

 

14. In the meeting held on 5.2.2011 under the Chairmanship of the
Principal Secretary, Home Department, representatives of respondent No.1
and BPCL protested against the permission granted for construction by the
appellant and others on the property adjacent to the refinery of HPCL and
pleaded that construction activity should be immediately halted. It was
also suggested that a distance of 500 metres as buffer zone was required to
be maintained. Thereafter, the Principal Secretary asked the
representatives of respondent No.1 and BPCL to make necessary
representation to the Brihanmumbai Mahanagar Palika to maintain the
distance. The Principal Secretary also directed the representative of
respondent No.1 to inform the Urban Development Department within 15 days
whether the company was willing to take possession of a portion of 500
metres from the neighboring property for buffer zone and plant trees, etc.
so that the State Government could take an appropriate decision. The same
was also conveyed to respondent No.1 vide letter dated 15.2.2011.

 

15. Having failed to convince the State Government and the Corporation to
stop construction of buildings on the land purchased by the appellant,
respondent No.1 filed Writ Petition No.1973/2011 for quashing all approvals
and permissions granted to the appellant and for restraining the official
respondents from granting further permissions or approvals or renewing the
approvals / permissions already granted. Respondent No.1 heavily relied
upon the report prepared by the Intelligence Bureau highlighting the threat
perception to the refinery and its installations. Respondent No.1 also
challenged validity of Regulation 57(4)(c) of the DC Regulations in terms
of which the Commissioner of the Corporation can permit any open land in
special industrial zone to be used for any of the permissible users in
residential zone.

 

16. The appellant, the Principal Secretary, Urban Development and the
Deputy Director, Town Planning, BMC filed affidavits to oppose the writ
petition. In the affidavit filed on behalf of the MPCB, it was pleaded that
the clearance was granted after due consideration of the record in the
light of the clearance granted by the Ministry of Environment and Forests
(MoEF), Government of India. Secretary, Department of Environment,
Maharashtra also referred to the recommendations of the State Level
Environment Impact Assessment Authority and claimed that in view of the
clearance accorded by several agencies, permission sought by the appellant
was granted. Labour Commissioner filed an affidavit stating that he was
only concerned with the payment of dues of the workers and in the report
submitted by him it was made clear that the dues of workers have already
been paid. The Additional Director, MoEF filed affidavit to the effect that
State Expert Appraisal Committee has accorded environmental clearance in
terms of EIA Notification 2011. In a separate affidavit, Principal
Secretary, Home Department pointed out that HPCL refinery was Category ‘A’
vital installation and had been declared as prohibited area under the
Official Secrets Act. The Principal Secretary also submitted that
construction of high rise building on the plot in question will be a threat
to the installation of respondent No.1. In an additional affidavit filed on
behalf of the appellant, its Senior Vice-President Dr. Seema Garg averred
that large number of buildings have already been constructed in the
vicinity of the plot purchased by respondent No.1. Paragraphs 9 to 18 of
the affidavit of Dr. Seema Garg which have bearing on the decision of these
appeals read as under:

 

“9. I say that Development Control Regulations 1991 (Regulation 29)
provides that in case of change of user from Industrial to
Residential/Commercial zone, the Corporation can insist for
maintaining distance of 52 metres between the proposed development and
the obnoxious or hazardous industries. I say that plans provide for a
safe distance of far more than 52 metres between the boundary wall of
the said land and the boundary wall of the petitioner’s existing
refinery.

 

10. I submit that the apprehensions sought to be expressed by the
Petitioners in the Petition to the effect that the proximity of the
said land to the Petitioners’ refinery causes an environmental and
security threat is misplaced and unwarranted. This would be apparent
if the neighborhood of the Petitioners’ refinery is considered. The
Petitioners’ refinery is surrounded by dense human habitation i.e.
more than 350,000 occupants & a floating population of approx 50,000.
This has been stated by the Asst. Engr. (DP) ES of the BMC in the
affidavit filed in Writ Petition No. 1891 of 2007. The affidavit of
the Assistant Engineering (D.P.) E.S. Mumbai filed in Writ Petition
No. 1891 of 2007 by BPCL was to the effect that:

 

“…population in the locality is estimated to be 3.5 lakhs. In
addition, there is estimated to be floating population of
approximately 50,000 persons comprising of employees and
visitors. It is pertinent that touching the refinery of
Hindustan Petroleum Corporation Ltd., 7,500 flats have been
constructed with more than 7,500 persons residing there. The
situation has not caused any breach of or threat to the security
of Hindustan Petroleum’s refinery.”

 

11. Moreover there are a number of multistoried/high rise buildings
which are situated much closer to the Petitioners refinery. The
distance between the boundary wall of the Petitioners refinery and the
said land is approx 470 mtrs. Moreover as stated earlier the
Respondent No.20’s actual construction site is an additional 400-500
mtrs away from its plot boundary: i.e. the aggregate distance from the
Refinery wall to the said buildings is 800-900 mtrs. As compared to
this, there are multistoried buildings and even a high rise situated
much closer to the Petitioners refinery. Some of such
buildings/habitations which surround the Petitioners’ refinery are set
out hereunder:

 

On the South: At the distance of zero metres /i.e. almost
adjoining the refinery there exist a Gavanpada village with a
population of about 7000 people.

 

On the East: a) At the distance of 18.53 metres, there exist
slums; namely Paryag Nagar and Prakash Nagar with a population of
approximately 5000 people.

 

b) At the distance of about 125 mtrs., situated on raised ground/a
hill, is the residential high rise tower of 14 storey constructed on
the Metal Box plot. This building is almost complete and ready for
occupation.

 

On the North: a) At the distance of 30 to 130 mtrs. there are
more than 50 multi storey buildings constructed for Slum
Rehabilitation by RNA SRA Scheme and Videocon SRA Scheme consisting
more than 6000 housing units and hundreds of shops.

 

b) At the distance of 50 mtrs. there exists Vishnunagar Slum
having a population approximately of 10,000 people.

 

c) At the distance of approx. 400 metres, there exists Bharat
Nagar slum having a population of approx. 20000 people.

 

On the West: Across the road and opposite the main Gate of
Refinery are the shops and hutments with a population of about 200
people.

 

Hereto annexed and marked Exhibit “A” is the satellite map showing the
location of the Petitioners refinery and its surroundings. Some of
those developments have taken place as recently as 2009-2010. Also,
annexed hereto as Exhibits “B-1” to “B-13” are some of the photographs
clearly showing the extent of residential development and the
surroundings of the Petitioners’ refinery.

 

12. The Petitioners after making initial objections in 2007, have not
filed any proceedings to stop or obstruct the construction and
completion of the SRA High Rise project constructed on the land of
Metal Box which is at the distance of only 125 mtrs. from the
Petitioners’ refinery.

 

13. I say that that on the Northern side touching the boundary of
Respondent No.20’s land which is notified as Residential Zone, there
is the MSEB Colony, buildings constructed for MHADA and various SRA
Projects. Even the Petitioners’ own residential colony falling within
the Residential zone is situated only a few metres away from the
Boundary wall of Respondent No.20’s land. Not only that, Bharat Nagar
and New Bharat Nagar residential areas having population of
approximately 20,000 people is also in the vicinity.

 

14. I say and submit near the refinery of the Petitioners, there is a
refinery of Bharat Petroleum Corporation Limited (BPCL). I say that
just opposite to their refinery, the area as sanctioned under the
Development Plan was shown for residential use. As a matter of fact,
BPCL itself required the area near the refinery to house their workmen
and staff quarters. I therefore, say and submit that statutory
authorities while finalizing the Development Plan had taken all
required steps to safeguard the hazardous industries by providing for
maintaining safe distance under the DCR. I say that the said area has
now have been developed with construction of multi storey buildings. I
say that the Plans annexed hereto clearly show the nature of
constructions surrounding the BPCL refinery also. Not only that
monorail route is passing just outside the boundary wall of BPCL
refinery and a railway station is also built which is having direct
line of site vision into refinery. I say that Exhibits “C-1 to C-3”
are some of the photographs clearly and unequivocally show that there
are number of buildings already constructed near the refinery of BPCL
and also the monorail track. I therefore, say and submit that the
Petitioners carrying on similar activities as that of BPCL cannot
allege the environment or the security concerns more particularly when
all the authorities have sanctioned the project of Respondent No.20.

 

15. I say that despite repeated requests, the Petitioners have not
shared with Respondent No.20 the alleged report of Intelligence Bureau
with regard to the Security concerns. I say that in absence of such
report the Petitioners are unable to deal with the same. I submit that
unless, the Petitioners disclose the IB report, this Hon’ble Court
should not take cognizance of the alleged extracts relied on /referred
to. I however say that the issue regarding the proposed construction
posing a security risk to the Refinery (being within its line of
sight) is misconceived and untenable. I say that the Petitioners’
property is enclosed on all sides by a boundary wall. Adjoining the
boundary wall there is a public road, which is used by the public at
all times of the day and night. Heavy vehicular traffic is also a
constant phenomenon on the said road. The said road does not have any
security checks or any persons patrolling it. I say that in order to
enable any person a direct line of site vision into refinery areas,
one does not require to climb multistoried buildings, as the
refinery/storage tanks are clearly visible & in the line of sight of a
pedestrian walking along the road or any occupant of a vehicle using
the said road had a clear line of sight to the Petitioners storage
tanks. The Petitioners have also not raised any security issue in
respect of the buildings/multi storeyed buildings built on almost
three sides of the refinery at a distance ranging from 50 mtrs to 300
mtrs. In these circumstances the Petitioners cannot contend that
construction being carried out by these Respondents at a distance of
800 to 900 mtrs constitutes a security risk and is required to be
stopped. Hereto annexed and marked Exhibit “D” is the satellite image
of the Petitioners refinery along with photographs of the residential
colonies, SRA projects, commercial establishments, slums around the
same as also the developments opposite BPCL refinery.

 

16. I say that the Petitioners are merely apprehending that use of
fire crackers by residents would pose constant hazard and threat to
the refinery. The Petitioners have rather ignored the fact that the
proposed development of Respondent No.20 shall be at the distance of
more than 800 mtrs.

 

17. I say that as the project on the said property is covered by the
Notification issued under the Environment Protection Act, 1986.
Accordingly, the Environment Impact Assessment (EIA) was necessary to
be obtained from MoEF, and Respondent No.20 had applied for the said
sanction for the said project. I say that the said process of EIA also
requires a public hearing. I say that Petitioners participated in the
public hearing conducted by the Maharashtra Pollution Control Board.

 

18. The petitioners have acquired land admeasuring 2,30,407.40 sq.
metres bearing CTS No.382, 382/1 to 22 belonging to one Ahmedabad
Printing and Calico Mills Co. Ltd. A part of this land falls between
the exiting refinery of the Petitioners and the said land of
Respondent No.20. Considering this area, which is as on date an open
area there is a distance of more than 500 metres between the
Petitioners’ existing refinery and the said land. It is not open to
the Petitioners to now carry on construction of additional/new storage
on the said Calico and thereafter contend that safety distances are
not being maintained. The Petitioners are seeking to render the
Petitioners buildable land sterile without acquiring and paying for
the same.”

 

(reproduced from the SLP paper book.)

 

The details of the buildings existing in the vicinity of the
refineries of respondent No.1 and BPCL, to which reference has been
made in the affidavit of Dr. Seema Garg, are given hereunder in the
form of the following table:

 

|Location |Distance from the|Name of |Population |
|from the |Refinery |building/habitation | |
|Refinery | | | |
|South |0 metres; i.e., |Gavanapada Village |7000 |
| |almost adjoining | | |
| |the refinery | | |
|East |a) 18.53 metres |Slums of Paryag |5000 |
| | |Nagar and Prakash | |
| | |Nagar | |
| |b) 125 metres |On a raised ground- |Almost |
| | |residential high |complete |
| | |rise tower of 14 |and ready |
| | |storey on the Metal |for |
| | |Box plot |occupation |
|North |a) 30-130 metres |More than 50 multi |6000 |
| | |storied constructed |housing |
| | |under the SRA scheme|units and |
| | | |hundreds of|
| | | |shops |
| |b) 50 metres |Vishnunagar Slum |10,000 |
| |c) 400 metres |Bharat Nagar Slum |20,000 |
|West |Across the road |Shops and hutments |200 |
| |and opposite the | | |
| |main gate of the | | |
| |refinery | | |
17. The Division Bench of the High Court allowed the writ petition and
quashed the permission accorded by the Corporation and other authorities
for conversion of the appellant’s land from Special Industrial Zone (I-3)
to Local Commercial Zone (C-1) under Regulation No. 57(4)(c) of DC
Regulations, approval granted for amalgamation / sub-division of the plot
and sanction accorded to amended building plans for construction of
residential buildings. The High Court also quashed NOC issued by MPCB and
environmental clearance granted by MoEF and directed the Municipal
Commissioner to re-consider the applications made by respondent No.1 for
change of land use and for sanction of plan and decide the same afresh
after considering the objections raised by various Departments and the
provisions of Security Control Regulations.

 

18. One of the grounds which found favour with the High Court was that
the Corporation is duty bound to ensure that large human habitation does
not grow around the refinery, which comes within the definition of
hazardous industries. The other ground accepted by the High Court was that
while sanctioning change of land use and building plans, the Corporation
did not pay due attention to the issue of security of the refinery and
health of people likely to reside in the newly constructed buildings. The
High Court also held that even in the absence of specific provision in DC
Regulations, the Municipal Commissioner was duty bound to keep in mind the
larger public interest, i.e., health of the people living in the vicinity
before granting permission for construction of residential and commercial
complex. The High Court accepted the affidavit filed by the Assistant
Commissioner of Police that the proposed construction would pose serious
threat to the refineries of respondent No.1 and BPCL and held that such
construction cannot be allowed. The High Court rejected the appellant’s
contention that the restriction proposed to be imposed in the name of
security threat amounted to violation of its property rights. The High
Court referred to the incidents like Bhopal gas tragedy, terrorist attack
in Mumbai and the reports of the Intelligence Bureau and the Ministry of
Home Affairs and held that the Municipal Commissioner had approved change
of user and sanctioned the building plan without applying mind to various
issues.

 

19. R.D. Dhanuka, J., who authored the main judgment recorded the
arguments of the learned counsel in 35 pages. He rejected the objection
raised on behalf of the appellant that the writ petition was not
maintainable because respondent No.1 had not approached the Court with
clean hands. The learned Judge then referred to several judicial precedents
on the interpretation of the 1966 Act and held:

 

“In our opinion even these above-referred provisions clearly provides
that even if the relaxation in respect of the dimensions in case of
hardship, can be granted by the Municipal Commissioner, Municipal
Commissioner is prohibited from granting such relaxations if such
relaxation affects health, safety, fire safety, structural safety and
public safety of the inhabitants of the building and the
neighbourhood. In our view, the Learned Counsel for HPCL is right in
his submission that this prohibition against the Municipal
Commissioner in relaxing certain conditions even in case of hardship,
if it affects the public safety, health etc. should be read in the
powers of Commissioner under Regulation 16(a) (b) and (n). We are of
the opinion that the issue of security and health aspect, which is for
members of the public at large and is in pubic interest and therefore,
by not considering the security and health aspect or refusing to
consider such aspects while sanctioning the plan or while permitting
change of user, is totally illegal and contrary to Regulations 16(a)
(b) (n) read with section 64(b) of the D.C. Regulations.
From the perusal of the aforesaid judgments and applying the
principles thereof to the facts of this case, we are of the opinion
that the learned counsel for Oswal as well as Municipal Corporation
are not right in their submission that the security aspect should not
have been considered at all by the Municipal Commissioner while
sanctioning the plan for development or while permitting change of
user under any of the provisions of the D.C. Regulations or Mumbai
Municipal Corporation Act or Maharashtra Regional Town Planning Act.
We are of the opinion that it is not only the power but also duty of
the Municipal Commissioner to consider the security aspect in public
interest before granting permission to development any land as well as
permitting change of user from one zone to another zone. Under
Regulation 16(a), (b), (n) read with Regulation 64(b) read with
section 46 of the M.R.T.P. Act. We are, therefore, unable to accept
the submission of the learned counsel for Oswal as well as B.M.C. that
there was no enabling provisions under the present D.C. Regulations or
any other provisions to consider security and health aspect before
sanctioning the plan or before permitting change of user by the
Municipal Commissioner.”

 

The learned Judge then referred to the judgment of the Division Bench of
the High Court in an un-reported judgment titled TCI Industries Limited v.
The Municipal Corporation of Greater Bombay and others and held:

 

“The principal argument of the petitioner was that
none of the authorities have considered Intelligence Bureau
report categorically pointing out that any planning to
construct high rise residential buildings at the site of
demolished factory of M/s. Oswal Agro Mills Limited, Anik,
Chembur (Near HPCL Refinery) would be detrimental to the
security/safety of the vital installation and that the Mumbai
terrorist attack in November, 2008 had exposed vast
coastline of Mumbai to danger through the sea due to which
oil installations have become more vulnerable to threat from
inimical forces and such installations and other public places
were likely to be targeted. Inspite of petitioner bringing these
facts to the notice in the public meeting held, strongly
objecting to the permissions if any being granted to Oswal
for development, none of the authorities have even bothered
to look into the security aspect while granting the approval to
Oswal and have taken very casual approach in the matter. The learned
counsel for the HPCL as well as learned counsel appearing for
Government of India invited our attention to the instructions given by
the Government of India, Ministry of Home Affairs to their advocate
appearing in this matter requesting its advocate to appraise this
Court of the view of the Ministry of Home Affairs about the security
aspect. Even in the said letters, it is made clear that vital
installations including located near the coastline are vulnerable to
threats from inimical forces in view of the prevailing security
situation. It is recorded that the construction of building at the
site of Oswal cause security hazard to vital installations in HPCL
Refinery. The Ministry of Home Affairs have also addressed separate
letter and has advised to the State Government of Maharashtra
requesting to review the matter of permissions and clearance granted
to Oswal for change of user and construction of such high rise
construction in view of the safety reasons involved. We have also
perused the affidavit in reply filed by Mr. Didarsingh, Assistant
Commissioner of Police, stating that as per police record, HPCL is “A”
category vital installation in terms of National importance and has
been declared as prohibited area in the Official Secret Act, 1923. It
is further stated that the high rise buildings, if permitted on the
Oswal Mills land may enable direct line of sight vision into not only
HPCL Refinery area but also BPCL Refinery area which is also close to
Oswal Agro Mills Ltd. towards south direction. It is further stated
that any upper floors of complex on Oswal land if permitted may
provide an ideal launching pad for any external subject to be directed
or targeted at the said refinery storage tank which may contain highly
inflammable substances like LPG, Naptha, Crude oil etc. The Police
department have placed reliance upon the threat assessment as per the
report of the inspection of the Industrial Security carried out by the
Intelligence Bureau, Government of India in the said affidavit.
However, the learned counsel appearing for Oswal submitted that the so
called assessment of Intelligence Bureau regarding security threat to
refinery of petitioner is of no significance as according to him, the
ministry of Environment had granted approval to the project of Oswal
much after the said report of Intelligence Bureau and while granting
such approval the Ministry of Environment had considered all aspects
including the security aspect. On the other hand, the learned counsel
appearing for the HPCL strongly canvassed that this court is not an
expert in the issue of security aspect. The serious threats of life
and security perceived by the Intelligence Bureau can not be brushed
aside by the authorities as well as by this Court. Oswal has not
alleged any malafides on the part of Petitioners in raising issue of
security or health or in placing reliance upon Intelligence Bureau
Report or has not made such allegations against Intelligence Bureau.
Oswal has also not produced any other report from expert showing
different position.”

 
20. P.B. Majmudar, J., who agreed with R.D. Dhanuka, J. referred to
Section 37 of the 1966 Act which contains the procedure for modification of
final development plan, Clause 57 of the D.C. Regulations and observed:

 

“4. It is required to be noted that in the instant case, after due
application of mind, the area in question was placed under 13 Zone,
considering the fact that it is surrounded by industries which include
hazardous industry like the refinery. It is not in dispute that the
refinery in question is considered as a hazardous industry. In an
industrial zone, commercial-cum-residential activities are not
permitted. Respondent No. 20 after purchasing the property decided
to use the said property for its commercial benefits. The
Commissioner who is empowered to consider such request for change of
Zone is required to apply his mind in an appropriate manner. The
concerned Commissioner at the relevant time, for the reasons best
known to him, failed to take into consideration various aspects such
as hazardous activity being carried out by the Refinery as high fumes
are going in the sky, refinery which is prone to security threats,
etc. simply because one may apply for conversion from one zone to
another and simply because the Commissioner is empowered to grant such
permission, he is not required to grant such conversion mechanically.
The Commissioner is required to take into consideration various
aspects such as security threats, fire, safety, health, etc. While
considering such aspects, one cannot lose sight of as to what had
happened in Bhopal few years back. It is required to be noted that the
Commissioner is not having unfettered and uncontrolled powers, while
taking such decision. Once these powers are there, it is required to
be exercised sparingly by application of proper mind while taking into
consideration various other aspects in the matter. In a given case,
for the purpose of residential quarters of the employees of a
particular industry or for providing food facilities, permission to
carry out commercial-cum-residential activities can be granted but it
should not mean that large scale commercial activities by putting high
rise buildings for the purpose of residence also can be permitted in a
mechanical manner. In my view, while permitted the developer to put
high rise buildings, the Commissioner was required to apply his mind
in an appropriate manner instead of deciding the question in a
mechanical manner. It is the duty of the authority to see that by
permitting conversion from industrial zone to commercial-cum-
residential zone, it may not result into health hazards or security
threats. On going through the voluminous records and photographs, it
cannot be denied that the area is surrounded by a large scale refinery
and large fumes are also going in the sky. When the question relates
to the town planning, those who are in the charge of town planning
should see to it that after 50 or 60 years, the future generations may
not curse those who were in charge of planning as the planning
authority is required to consider the future needs and interest of the
future generation also. It is not out of place to mention at this
stage that before independence when Baroda State was in existence, its
ruler Sayajirao Gaekwad, who was a great visionary, never permitted
any industries within the city limits as, according to him, if the
industrial activities are permitted near the residential area, it is
bound to affect the health, safety and security aspects. The said
aspect was considered by the said Ruler more than 70 years ago. In
the instant case, since the area is surrounded by industries and is in
an industrial zone, the authorities are required to consider as to
whether it will create any nuisance to the people who are permitted to
reside, if high rise buildings are constructed near such industries.
The planning authority in its wisdom is required to consider this
aspect in an appropriate manner. The Commissioner was required to
consider even the aspect of security threat as it is pointed out that
so far as refinery is concerned, there is also a security threat. In
my view, therefore, the Commissioner was required to consider the
matter appropriately and should not decide the matter mechanically
simply on the basis of discussions during the meeting with the
officers of the Petitioner Company.”

 
The learned Judge further observed that the concerned authority did
not apply mind while sanctioning change of land use of the plot owned by
the appellant.

 

21. We have heard S/Shri Dushyant A. Dave, Rakesh Tiku, Shekhar Naphade
and Pallav Shishodia, Senior Advocates appearing for the appellants and
S/Shri Harish N. Salve and Rakesh Dwivedi, Senior Advocates appearing for
the respondents and carefully scrutinized the records.

 

22. Although learned counsel for the parties raised several contentions,
I do not consider it necessary to deal with the same because the High Court
has not considered the issues of security and possible adverse impact on
the health of those who may occupy the buildings to be constructed by the
appellant due to existence of the refineries and industries in the area in
a correct perspective. A reading of additional affidavit dated 12.12.2011
filed by Dr. Seema Garg, Senior Vice-President of the appellant and
photographs annexed with it shows that large number of multi-storied
buildings have been constructed near the refineries of respondent No.1 and
BPCL and over 3,50,000 persons are living in those buildings. The
photographs marked ‘Exhibit D’ clearly demonstrate the existence of several
buildings in the vicinity of the refineries of respondent No.1 and BPCL.
These include the colony of the officers and employees of respondent No.1
which is at a distance of 30 meters from BPCL refinery. The photographs
further show that Mono Rail is being constructed at a distance of 18 meters
from BPCL refinery.

 

23. The averments contained in the affidavit of Dr. Seema Garg on the
issue of existence of multi-storeyed buildings in the vicinity of the
refinery of respondent No.1 and BPCL remained substantially uncontroverted,
but the Division Bench of the High Court virtually ignored the same and
allowed the writ petition of respondent No.1 by relying upon the report of
Intelligence Bureau and the affidavit filed by the Assistant Commissioner
of Police, a reading whereof shows that the report as well as the
affidavit are not based on any scientific study. It is extremely difficult,
if not impossible, to visualise any security threat from the buildings
being constructed by the appellant when no such threat is perceived from
the buildings already constructed in the close vicinity of the two
refineries. Gavanpada Village having a population of 7,000 is just adjacent
to the refinery. On East and North, several buildings have been constructed
at a distance of 18.53 meters to 130 meters. Lakhs of people are residing
in these buildings. Respondent No.1 did not get any scientific study
conducted by experts to find out the effect of gases emanating from the
refineries and other industrial units operating in the area on the health
of the people occupying the building. Not only this, the said respondent
did not explain as to how the security persons who may occupy some of the
buildings already constructed will not be affected by the pollution caused
due to operation of the refineries and industries. This being the
position, the bald assertions made on behalf of respondent No.1, the
report of the Intelligence Bureau and affidavit filed by the Assistant
Commissioner of Police on the issues of security threat and public health
could not have been relied upon for recording a finding that the buildings
proposed to be constructed by the appellant would pose security threat and
adversely affect the health of the prospective occupants of the buildings.

 

24. The omission on the part of respondent No.1 to challenge the
sanction/permission accorded by the Corporation and other public
authorities for construction of other residential buildings is
inexplicable. If the buildings proposed to be constructed by the appellant
at a distance of 800 meters from the refinery are considered future
security threat to the establishment of respondent No.1, the buildings
already constructed in the close vicinity of the refinery etc. would
certainly pose greater security threat. The solution found by the State
and its functionaries as also the officers of the Corporation, i.e., use of
upper floors of the buildings for housing the members of Police force and
other security agencies can equally be applied to the case of the appellant
and there is no rational reason to discriminate the appellant vis-à-vis
others, who have already constructed the buildings. Similarly, the plea of
respondent No.1 that the operation of refineries would adversely affect the
health of the occupants of the buildings proposed to be constructed by the
appellant will be equally relevant for the occupants of the buildings
already constructed. Respondent No.1 has not placed any report of the
experts to prove that the residents of the buildings already constructed
have become prone to various kinds of diseases and, therefore, it is
opposing the construction of new buildings which may be occupied by the
members of public. Therefore, this objection cannot be pressed into
service for restraining the appellant from constructing the buildings.

 

25. On the premise aforesaid, the appeals are allowed, the impugned order
is set aside and the matter is remitted to the High Court for deciding the
writ petition of respondent No.1 afresh after considering the material
produced by the parties on the issues of security threat and possible
danger to the health of the occupants of the buildings already constructed
and those who may occupy the buildings to be constructed by the appellant.
The High Court shall decide the writ petition afresh uninfluenced by the
observations and findings contained in the order of the High Court and this
judgment. The parties may, if so advised, file additional affidavits and
documents within six weeks from today.

 

26. Since the construction of buildings by the appellant had been halted
pursuant to the interim order passed by this Court, the High Court is
requested to decide the writ petition afresh as early as possible but
latest within a period of four months from the date of receipt of copy of
this order in the Registry of the High Court.

 

27. The Registry is directed to send a copy of this judgment to the
Registrar General of the Bombay High Court who shall place the same before
the Chief Justice for appropriate order.

 

……………………………….…J.
(G.S. SINGHVI)
New Delhi;
December 10, 2013.

 

REPORTABLE

 

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10933 OF 2013
(@ out of SPECIAL LEAVE PETITION (CIVIL) NO.14202/2012)
Oswal Agro Mills Ltd. … Appellants

 

Versus
Hindustan Petroleum Corporation Ltd. & Ors. … Respondents

 

With

 

CIVIL APPEAL NO.10934 OF 2013
(@ out of SPECIAL LEAVE PETITION (CIVIL) NO.30858/2012)
Municipal Corporation of Greater Mumbai … Appellants

 

Versus

 

Hindustan Petroleum Corporation Ltd. & Ors. … Respondents
J U D G E M E N T
H.L. Gokhale J.

 

We have gone through the judgment prepared by our Learned
Brother G. S. Singhvi, J. wherefrom we have benefited. Yet with great
respect, we are unable to persuade ourselves to agree therewith for the
reasons which we record herein below.
2. Both these appeals seek to challenge the judgment and order
dated 12.4.2012 rendered by a Division Bench of Bombay High Court allowing
Writ Petition No.1973 of 2011 filed by respondent No.1 in these appeals.
For the sake of convenience, we will refer to the facts as disclosed in the
appeal filed by Oswal Agro Mills Ltd. (‘Oswal’ for short). The dispute in
this matter is essentially with respect to the proposed construction of the
residential-cum-commercial complex of the appellant herein, which is
permitted by the Municipal Corporation of Greater Mumbai to come up in the
vicinity of the Refinery run by the first respondent Hindustan Petroleum
Corporation Ltd. (‘HPCL’ for short) at Mahul, Chembur, Mumbai. The
refinery is situated on B.D Patil Marg, Mahul, on a property comprising of
various CTS Numbers. Apart from the refinery, the first respondent has
about 117 storage tanks on this property which store, at any given point of
time, oil and petroleum products of over 118883860 KL. The proposed
construction is to come up on the adjoining property of Oswal bearing CTS
No.381, 381/1 to 21 of Village Anik, in ‘M’ Ward at R.C. Marg, Chembur,
Mumbai. The project involves construction of four commercial buildings, one
office building, one amenity building, and eight more buildings for
residential purposes, consisting of about 3000 flats. The principal
contention of the first respondent is two-fold viz. that from the point of
view of the safety and security of the refinery, and of the occupants who
will be residing in this housing complex, as well as their health, this
development ought not to be permitted. It is their submission that such a
construction would be contrary to law, apart from being potentially
dangerous and, therefore, undesirable on both these counts.
3. The refinery of the first respondent was set up in this area
way back in year 1952 on an area of about 416 acres. The refinery of BPCL
is opposite the refinery of the first respondent. The factory of Rashtriya
Chemicals and Fertilizers is in the vicinity. Bhaba Atomic Research Centre
at Trombay is also close by. When all these vital installations were set
up, there was hardly any population in this area, and in any case there
were no tall buildings. The only nearby locality which was occupied was a
village by name Gavanpada. All these installations were set up in this
area principally because it was sparsely populated and it is far away from
the main island city of Mumbai.
4. This area was designated as the Special Industrial Zone, and
the commercial-cum-residential activities were not permitted therein. The
appellant was owning the concerned property since about 1989, and its
factory thereon, but it moved for the construction of a residential-cum-
commercial complex therein, only in the year 2006. The requisite change of
user has been permitted by the Municipal Corporation and hence, this
litigation between the parties.
5. As can be seen from the synopsis of the SLP No. 14202 of 2012
filed by the appellant, it specifically states as follows:-
“The petitioners’ said plot is located approximately 500 mtrs north of the
boundary wall of the HPCL Refinery. The building moreover being
constructed by them is a further 470 mtrs to the north of the Petitioners’
plot boundary i.e. at about 970 mtrs (almost 1 kilometer away) from wall.”

 

6. The appellant has contended that at the most, the first
respondent is seeking a buffer zone of 500 meters along its refinery, and
they also referred to the construction of some other buildings which have
come up and are coming up in the vicinity. The proposal of the appellant
is to construct buildings of 7 to 8 storeys, and it is their submission
that when other similar constructions are permitted in the vicinity, there
is no reason why their construction should be objected. The first
respondent has, however, pointed out in their affidavit before the High
Court that whatever may be the initial proposal of the appellant, some of
these buildings would be going upto 24 floors. As against that, the
appellant has tried to explain this high-rise construction on the basis of
utilization of F.S.I., but they have not denied the existence of such a
subsequent proposal. In this behalf, it is to be noted that the first
respondent has objected to all the similar constructions in the vicinity
all throughout.
7. As stated above, the first respondent objected at all stages
when it came to know about the proposed development of the appellant.
Firstly, when the public notice was issued on 19.6.2006 for environmental
public hearing, the first respondent lodged their objection by letter dated
11.7.2006. They pointed out that a residential-cum-commercial complex next
to oil/petroleum refinery was inherently not environment friendly. It has
been their submission that the operation of the refinery and ancillary
installations, including storage facilities, release Volatile Organic
Compounds into the atmosphere, some of which are carcinogenic, particularly
at the height of funnel chimney. It was also pointed that a construction
overlooking the refinery was not desirable from the point of view of the
safety and security of the refinery. When the first respondent learnt
about the other development projects such as those on the Metal Box Co.’s
plot and on that of Apar Ltd., they had protested by their letters dated
26.10.2007 and 3.6.2008 to the Chief Secretary of the State of Maharashtra.
By their subsequent letter dated 26.8.2008 to the Additional Chief
Secretary, they lodged their objections once again. The first respondent by
their letter dated 15.10.2010 requested the Municipal Corporation to
intervene and stop the construction of residential/commercial complex of
the appellant near their refinery. However, the Municipal Corporation by
their letter dated 28.10.2010 informed the first respondent that the
development around the refineries was being carried out by Oswal in
accordance with the Development Control Regulations (DCR) for Greater
Mumbai, 1991 framed under the Maharashtra Regional and Town Planning Act,
1906 (‘MRTP Act’ for short), and legally the development could not be
stopped by the Corporation.
8. Ultimately, when the first respondent learnt that permission
had been granted to the appellant for conversion of the land from
industrial to residential-cum-commercial purposes, the first respondent
filed the earlier referred Writ Petition in the Bombay High Court bearing
No.1973 of 2011. The prayers in the Writ Petition were to set aside the
approvals and permissions granted by various statutory authorities, and
particularly the approvals and permissions granted for the development
purpose and for the change of user as disclosed from exhibits Q to Z to the
Writ Petition. Prayer (b) of the petition was that the permission to
develop the residential-cum-commercial complex on the said plot be set
aside. The Writ Petition having been allowed, these two appeals have been
filed. Mr. Dushyant Dave, learned senior counsel has appeared for the
appellant Oswal, Mr. Harish Salve, learned senior counsel has appeared for
HPCL, Mr. Shekhar Naphade, learned senior counsel has appeared for the
Municipal Corporation of Greater Mumbai, and Mr. Sanjay Kharde, learned
counsel has appeared for the State of Maharashtra.
9. The principal submission on behalf of the appellant Oswal was
that they had been granted the change of user (conversion from industrial
zone to residential/commercial zone) by the municipal corporation, under
its permission dated 1.9.2009, on this parcel of land (exhibited at
Annexure P-23 to the Writ Petition). Since, this permission was as per DCR
57(4)(c), which allows such a change of user with the previous approval of
the Municipal Commissioner, it should not be interfered with. This change
of user was defended by the Municipal Corporation also through the
affidavit of the Assistant Engineer, Development Plan, ‘M’ Ward, dated
19.11.2011. It was stated in paragraphs 4 (c) and (d) of this affidavit
that various complaints had been received from HPCL/BPCL concerning the
issue of security, and a reference was therefore made to the Urban
Development Department of the State of Maharashtra, vide letters dated
26.10.2006 and 21.4.2007. However, no clarification as sought was received
from the Government, and hence in view of the order of the Municipal
Commissioner dated 24.8.2009, the conversion from Special Industrial Zone
(I-3) to Commercial Zone (C-1) was granted. That was on an undertaking from
Oswal, that if the Government issues an adverse clarification, that will
have to be complied with, and also on an indemnity, as against any legal
consequences arising out of any action initiated by HPCL.
10. Various submissions were advanced on behalf of the first
respondent, though the principal ones from amongst them were as follows:-
(i) Firstly, it was submitted that the permission for conversion of the
land from industrial to residential-cum-commercial purpose was granted even
prior to the public hearing in pursuance to the notice issued by the
Maharashtra Pollution Control Board. Besides, the conversion from Special
Industrial Zone (I-3 Zone) to Local Commercial Zone (C-1) under regulation
57 (4) (c) of the DCR 1991 required a certain procedure to be followed
which had not been followed, and it could not be without considering the
objections of Respondent No 1.
(ii) Secondly, the likely health hazards for the occupants were not
considered at all, as pointed out earlier.
(iii) Last but not the least, they emphasised the security aspect. In
paragraph 28 of the Writ Petition, the first respondent specifically relied
upon the inspection carried out by the Intelligence Bureau of Government of
India in the refinery on 10.1.2011. The report stated in paragraph 3
thereof as follows:-
“3. Threat Assessment

 

The Mumbai terrorist attack of November 26, 2008 has exposed our vast
coastline to danger through the sea due to which oil installations have
become more vulnerable to threat from inimical forces. This was revealed
during interrogation of various arrested militants in the country over last
few years.

 

David Coleman Headly disclosed during his interrogation that during his
nine visits to India (2006-09), he has identified a large number of
sensitive establishments including economic targets like Mumbai Stock
Exchange, World Trade Tower, Oil Installations, BARC Mumbai, etc.

 

Several multi storied buildings (57) constructed under SRA scheme near the
HPCL Refinery, presently not allotted to anybody due to security concerns,
if allotted to persons other than security agencies, may be misutilised to
cause damage to the Refinery.

 

Any planning to construct high rise residential buildings at the site of
demolished factory of M/s Oswal Agro mills Ltd., Anik, Chembur (Near HPCL
Refinery) would be detrimental to the security/safety of the vital
installation.” (emphasis added)

 

11. It is relevant to note that on the security aspect, the first
respondent referred to their letter dated 13.4.2011 to the then Chief
Secretary, Government of Maharashtra, wherein they drew his attention to
the recent incident of fire at Indian Oil Depot at Jaipur resulting into
loss of life and damage to property. They relied upon the letter dated
1.3.2012 by the Deputy Secretary, Ministry of Home Affairs, Government of
India which specifically stated in Paragraph (2) (ii) as follows:-
“ii) With specific reference to the construction of within building at the
site of demolished factory of M/s Oswal Agro Mills Ltd., Anik Village
Chembur near HPCL refinery, they pose a security hazard to the above vital
installation in HPCL refinery. Accordingly, MHA has already issued an
advisory in this regard to the State Government of Maharashtra vide letter
No VI 23014/448/2011-VS dated 16.1.2012 (copy enclosed). As regard the
possibility of such construction being used by security agencies, the
matter, needs to be examined in depth in consultation with all concerned.”

 

Lastly, they relied upon the affidavit of the Assistant Commissioner of
Police of Trombay filed in the Writ Petition. In paragraph 3, he has
specifically stated that any upper floors in the complex on Oswal land, if
permitted, may provide an ideal launching pad for any external object to be
directed or targeted at the said refinery storage tanks which may contain
highly inflammable substances like LPG, Naphtha and Crude Oil.

 

12. The Division Bench of the High Court considered all these
aspects, and by a very detailed judgment came to the conclusion that such a
construction could not be permitted as it would be hazardous to health, and
would also create a threat to the security of the refinery. It came to the
conclusion that the development permission in favour of Oswal was granted
without any application of mind, and without considering the security
aspect. All these considerations led the High Court to allow the Writ
Petition. In paragraph 60 (a) of its judgment, the High Court set aside
all the orders/permissions which were issued from 2006 onwards, and which
were annexed at exhibits Q to Z to the Writ Petition. The High Court,
thereafter, specifically directed in paragraphs 60 (b) and (c) as follows:-
b) The Municipal Commissioner is directed to reconsider the application
made by Oswal for change of user and also application for sanction of plan
after considering the objections of the Petitioners, Police Department,
Ministry of Petroleum, Ministry of Environment and Intelligence Bureau
Report referred by HPCL and also Security Control Regulations issued by
State of Maharashtra, issued under Section 37 (1AA) of the Maharashtra
Regional and Town Planning Act, 1996 and after hearing the parties
concerned, pass the fresh order after considering the views expressed by us
and in accordance with law within a period of eight weeks from today.

 

c) Ministry of Environment is also directed to reconsider their decision
while considering the permission applied for by Oswal after considering the
views expressed by us and after hearing all the concerned parties including
HPCL and should pass a fresh order within a period of eight weeks in
accordance with law.”
13. (i) Our Learned Brother Singhvi, J. appears to have been persuaded
to accept the submissions of the appellant in view of the affidavit of Dr.
Seema Garg, Vice President of the appellant. The affidavit points out that
on the southern side of the refinery, the Gavanapada Village is located
with a population of about 7000 people. We must, however, note that this is
an old village establishment and one cannot do away with it. It is stated
that on the eastern side there is a slum at a distance of about 18.53
meters. On the northern side, there are two slums at Vishnu Nagar and
Bharat Nagar, and on the western side, there are some shops and hutments.
In our view, HPCL cannot be held responsible for these structures. We
must, in any case, note that they are all structures of an insignificant
height. On eastern side, there is a high-rise tower of 14 storeys which is
almost completed, but yet not occupied, but which had all throughout been
objected to by HPCL. On the northern side, there are more than 50 multi-
storey buildings constructed in the Slum Rehabilitation Scheme which also
are not occupied. We must, however, note that because of the resistance of
the first respondent, the upper floors of these buildings are to be
allotted to the Police department.
(ii) The affidavit of Dr. Seema Garg has emphasized all these
aspects which have been quoted in the order prepared by our Learned
Brother, but he has not considered the above explanation of HPCL in that
behalf. It has been stated in paragraph 22 of his judgment that the High
Court has allowed the Writ Petition by relying upon the report of
Intelligence Bureau and the affidavit of the Assistant Commissioner of
Police, but according to him they are not based on any scientific study or
expert analysis. In our view, the statement in the affidavit of the
Assistant Commissioner of Police as well as the extracts from the report of
the Intelligence Bureau are quite cogent. The view of the Police
Commissioner is reinforced by the Central Home Ministry on the background
of the terrorist attack in the city on 26.11.2008. It has also been
mentioned in paragraph 23 of his judgment that some other buildings are
coming up at a distance of about 800 meters from the refinery. As stated
above that all throughout these developments have been objected to by HPCL.
Therefore, HPCL cannot be faulted for such constructions which are
permitted by the Municipal Corporation. Besides, merely because such
constructions have been permitted so far, that does not justify any more
high-rise constructions coming up in the vicinity. We are aware of the
serious accidents which took place at the IOCL refinery at Jaipur, and also
at the Union Carbide Factory, Bhopal. Any such accident would cause
serious loss of life and property, and would be hazardous to the occupants
of these constructions.
14. What is most relevant to note is that when the refinery of the
first respondent came up in the year 1952, and the other earlier referred
vital installations of national importance also came up in the nearby area,
the population over there was sparse, and that is why these installations
were permitted to be set up at locations in the Mahul area of Chembur far
away from the Island city of Mumbai. Now the city has grown-up, as also
the suburbs, and people are trying to occupy the vacant spaces wherever
available. The Municipal Corporation and the State of Maharashtra ought to
have checked and stopped these constructions, particularly the high-rise
ones in the vicinity of these installations, but they have failed in doing
the same. It cannot, however, justify further dereliction of their
responsibilities. Merely because some constructions have been permitted at
some distance from the refinery of the first respondent, does not mean that
further high-rise constructions should be permitted to come up nearby. Two
wrongs do not make one right.
15. Having dealt with the appeal filed by Oswal, we may now deal
with the appeal filed by the Municipal Corporation. In this behalf, we
must say at the outset, that we are rather surprised that the Municipal
Corporation has also chosen to file an appeal against the order of the High
Court. This is on the background that Oswal had given an Indemnity Bond to
the Municipal Commissioner dated 7.1.2011 which reads as follows:-
“INDEMNITY BOND
To,

 

The Municipal Commissioner,
M.C.G.M.
Municipal Office,
Mahapalika Marg, Mumbai

 

Hon’ble Sir,

 

Sub: Request to allow the users permission in Local Commercial Zone (C-1)
on the land bearing CTS No. 381, 381/1 to 21 of Village Anik, in ‘M’ Ward
at R.C. Marg, Chembur, Mumbai.
M/s Oswal Agro Mills Ltd.

 

Ref: File No. CHE/683/DPES

 

I, the undersigned Shri Mahesh Rawal, Authorised Signatory of M/s Oswal
Agro Mills Ltd, of the above mentioned property whose office situated at
Sea Building, Off Carter Road, Behind Cafe Coffee Day, Opposite Chandni
Building, Bandra (W) Mumbai-400 052, hereby undertake to indemnify MCGM of
any legal consequences arising out of HPCL or any other organization/person
moves any court of law restraining development on the land under reference.
This Indemnity Bond is binding to me, to my heirs, executors, assignees,
assigns and to everybody derives title through or under me.

 

Dated this 7th day of January, 2011

 

Yours faithfully
Oswal Agro Mills Ltd.”

 

In view of this Indemnity Bond, the Municipal Corporation had no reason to
file any appeal against the order of the High Court, and we disapprove of
the same. We refrain from saying anything more.
16. (i) It was contended on behalf of Oswal, as well as on behalf of
the Municipal Corporation, that the Corporation is not required to go into
the security aspect and the environmental clearance as a pre-requisite
before any such proposal is cleared. It was submitted that this was
outside its jurisdiction. In this behalf, we may refer to the relevant
portion of DCR No.16 which falls in Part II of the DC Regulation of 1991
containing ‘General planning requirements, Land uses and manner of
development’. The relevant portion reads as follows:-
“16. Requirements of Sites

 

No land shall be used as a site for the construction of buildings-

 

(a) if the Commissioner considers that the site is insanitary or that it
is dangerous to construct a building on it or no water supply is likely to
be available within a reasonable period of time;
(b) ……
(c) …..
(d) …..
(e) if the use of the said site is for a purpose which in the
Commissioner’s opinion may be a source of danger to the health and safety
of the inhabitants of the neighbourhood;
(f) …..
(g) …..
(h) …..
(i) …..
(j) …..
(k) …..
(l) …..
(m) …..
(n) if the proposed development is likely to involve damage to or have
deleterious impact on or is against urban aesthetics or environment or
ecology and/or on historical/architectural/ aesthetical buildings and
precincts or is not in the public interest.”

 

Even DCR No.64 which gives the ‘Discretionary powers’ to the Commissioner,
does not permit him under sub-clause (b) thereof to grant relaxation which
will affect safety, fire safety and public safety of the inhabitants of the
building and the neighbourhood. Thus, this power is coupled with the duty
to give paramount importance to safety. These provisions cast an obligation
on the Municipal Commissioner to take into consideration the objections in
this behalf. (ii) DCR 57 (4) (c) was relied upon by the
appellant and the Municipal Corporation in defence of the change of user.
We are conscious that this DCR contains a non-obstante clause, but all that
it states is that ‘notwithstanding anything contained above’ (i.e. earlier
in the DCRs), such a change of user may be permitted. Thus, it is an
enabling provision, though it does not mean that the power therein is to be
exercised disregarding the objections that are raised. The power under DCR
57 (4) (c) could not be exercised as a stand alone power, when specific
objections relatable to DCR 16 had been raised. MRTP Act being an act to
provide for planned development, the provisions of the DCRs will have to be
read purposively and harmoniously, and not disjunctively. The appellants
had relied upon paragraphs 41 and 42 of the judgment of this Court in
Bombay Dyeing & MFG Co. Ltd. Vs. Bombay Environmental Action Group and Ors.
reported in 2006 (3) SCC 434. However, all that these paragraphs state is
that DCR 57 (4) (c) is pari materia with DCR 56 (3) (c), which is on the
General Industrial Zone (I-2 Zone). However, the judgment does not lead us
anywhere further on the issue in hand. As against that, we must note that
this Court has held that the wide amplitude of a non-obstante clause must
be kept confined to the legislative policy, and it can be given effect to,
to the extent Parliament intended and not beyond the same (See Para 36 of
ICICI Bank Vs. Sidco Leather Ltd. 2006 (10) SCC 452). HPCL had lodged their
objections, and the Municipal authorities were required to consider the
same but they have not. Rather, they refused to consider these objections
on a totally erroneous reading of the DCRs as can be seen from their
earlier referred letter dated 28.10.2010. Where human habitation is
permitted in proximity of hazardous plants, there is an immediate, as well
as long term, danger of exposure to health hazards. The planning authority
cannot ignore these aspects. The public interest cannot be sacrificed at
the altar of commercial interests. The submissions of the Municipal
Corporation and Oswal are clearly contrary to the above regulations, and
are therefore rejected.
(iii) Oswal and the Municipal Corporation had contended that the Writ
Petition was belated. With reference to this submission, we must note that
the I.O.D was issued to Oswal on 11.11.2010, and the Commencement
Certificate (to start the construction upto the stilt) was issued on
11.11.2011. The Writ Petition filed on 16.9.2011 could not therefore be
said to have been filed belatedly.
17. Our Brother Singhvi, J. has apart from allowing the appeal and
setting aside the order, directed the High Court to re-hear the matter
after considering the material produced by the parties on the issue of
security threat and possible danger to the health of the occupants of the
buildings already constructed and that of the prospective occupants of the
appellant’s buildings. As stated above, in our view the security threat is
clearly placed on record, as also the possible danger to the health of the
occupants of the buildings already constructed and to be constructed as
well. The order of the High Court has set aside all the approvals in
favour of Oswal. It has taken care of some of these issues when it
directed the Municipal Commissioner to reconsider the application made by
Oswal after considering (a) the objections of the Police Department,
Ministry of Petroleum, Ministry of Environment and Intelligence Bureau
report, and also the Security Control Regulations framed by the State of
Maharashtra. (b) The High Court has also directed that the Municipal
Commissioner will pass the order after hearing the parties and after
considering the views expressed by the High Court and in accordance with
law. In addition, we further direct the Municipal Commissioner to
consider the issue of possible danger to the health of the occupants of the
buildings already constructed, and those to be constructed by the
appellants, as desired by Singhvi, J.. He has referred to the statement in
the affidavit of Vice-President of the appellant that HPCL is seeking to
make the property of Oswal sterile and unbuildable without acquiring the
same. The parties can certainly utilise the time now available for
appropriate and fruitful negotiations in this behalf. And, in any case,
Oswal can certainly use the land for an agro-industry or any permissible
industry.
18. This being the position, we cannot find any fault with the
impugned judgment and order of the High Court, and it need not be set
aside. On the contrary, these two appeals deserve to be dismissed.
Accordingly, we pass an order dismissing these two appeals. The parties
will bear their own costs.

 

………………….…………………J.
[ H.L. Gokhale ]
……………….………………………J.
[ Ranjana Prakash Desai ]
New Delhi
Dated: December 10, 2013
———————–
45

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,806,271 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,863 other followers

Follow advocatemmmohan on WordPress.com