Bombay High Court
Hindustan Petroleum Corporation Ltd. vs The Municipal Corporation Of Greater on 12 April, 2012
Author: R.D. Dhanuka
Bench: P.B.Majmudar, R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1973 OF 2011
1. Hindustan Petroleum Corporation Ltd. )
a Government of India Enterprise and )
Company incorporated under the Companies)
Act, 1956 and having its registered office at)
17, Jamshedji Tata Road, Churchgate, )
Mumbai - 400 020 and having its Refinery )
at Mumbai Refinery, B.D.Patil Marg, Mahul,)
Chembur, Mumbai 400 074 ig )
2. Mr.Sudhir Chandra Mehta, )
Executive Director and Principal Officer of )
Petitioner No.1 abovenamed, having office )
at Mumbai Refinery, B.D.Patil Marg, Mahul,)
Chembur, Mumbai 400 074 ) ..... Petitioners
Versus
1. The Municipal Corporation of Greater )
Mumbai, Mahapalika Marg, Fort, Mumbai )
400 001 )
2. The Municipal Commissioner, )
Municipal Corporation of Greater Mumbai, )
Mahapalika Marg, Fort, Mumbai 400 001 )
3. Executive Engineer (Building Proposal), )
Eastern Suburb-BMC Near Rajligasi Building,)
Paper Mill Compound, LBS Marg, Vikhroli )
(West), Mumbai - 400 083 )
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4. Executive Engineer (Development Plan) )
ES, having its office at 4th Floor, Extn. Building)
Municipal Head Office, Mahapalika Marg, )
Fort, Mumbai - 400 001 )
5. Executive Engineer (Environment) Z-V )
Solid Waste Management, Eastern Suburb, )
Behind Pant Nagar, BEST Depot, BMC Garage)
Building, 6th Floor, Ghatkopar (East), )
Mumbai 400 075 )
6. Asstt. Assessessor & Collector )
M/East Ward, Mumbai Municipal Corporation)
Assessment & Collection Department, )
Ground Floor, Behind Natraj Cinema, )
Chembur, Mumbai - 400 071 )
7. Joint Director of Industries (MMR) )
having its office at ICL Building, Opp. )
Tatanagar, Chunabhatti (E), )
Mumbai 400 022 )
8. The Labour Commissioner State of )
Maharashtra, having its Office at Commerce)
Centre, 7th Floor, Tardeo, Mumbai 400 034 )
9. The Additional Director (IA) )
Government of India Ministry of )
Environment and Forests (I. A. Division), )
Paryavaran Bhawan CGO Complex, Lodhi )
Road, New Delhi 110 510 )
10. The Secretary Department of Environment)
Government of Maharashtra, )
New Administrative Building, 15th Floor, )
Opp.Mantralaya, Mumbai )
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11. The Maharashtra Pollution Control )
Board, Mumbai Regional Office, )
Shri Chhatrapati Shivaji Maharaj Market )
Building, 4th Floor, Mata Ramabai Ambedkar)
Marg, Mumbai - 400 001 )
12. The Commissioner of Police (Traffic) )
Near Regal Cinema, Shahid Bhagat Singh )
Road, Mumbai - 400 001 )
13. Asstt. Commissioner of Police-Security, )
Crawford Market, Mumbai - 400 001 )
14. The Principal Secretary, Home Department)
Government of Maharashtra, Mantralaya, )
Mumbai - 400 032 )
15. The Principal Secretary Urban )
Development, Mantralaya, Mumbai )
16. Dy. Director, Town Planning Greater )
Mumbai (BMC), Opp.BMC Headquarters, )
Mahapalika Marg, Mumbai - 400 001 )
17. Chief Fire Officer, Fire Brigade Mumbai)
City, Mumbai )
18. State of Maharashtra )
19. Union of India )
20. Oswal Agro Mills Ltd. )
a Company incorporated under the )
Companies Act, 1956 and having its )
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registered office at 7th Floor, Antriksh Bhavan)
22, Kasturba Gandhi Marg, New Delhi )
110 001 and local office at Sea Sand )
Building Off. Carter Road, Near Satranj )
Hotel, Opp. Chandni Building, Bandra )
(West), Mumbai - 400 052 )
21. Secretary, Ministry of Home Affairs )
Government of India, North Block, Central )
Secretariat, New Delhi - 110 001 ) ..... Respondents
Mr.F.D'Vitre, Senior Advocate, Mr.Pradeep Sancheti, Senior Advocate a/w.
Mr.Minoo Siodia, i/b. M/s.Rustamji and Ginwala for the Petitioners.
Mr.Aspi Chinoy, Senior Advocate a/w. Dr.Milind Sathe, Senior Advocate,
Dr.Birendra Saraf, i/b. M/s.M.K.Ambalal & Co. for Respondent No.20.
Mr.A.A.Kumbhakoni, a/w. Mr.Shardul Singh, Ms.Komal Punjabi for B.M.C.
Mr.B.B.Sharma, A.G.P. for the State - Respondent Nos. 8, 10, 12 to 16 and 18.
Mr.Rajiv Chavan a/w. Ms.Rutuja Ambekar for Respondent Nos. 9 and 19.
Ms.Sharmila U.Deshmukh for Respondent No.11.
CORAM :P.B.MAJMUDAR &
R.D. DHANUKA,JJ.
RESERVED ON : 30th March, 2012
PRONOUNCED ON : 12th APRIL, 2012
ORAL JUDGMENT (Per R.D. DHANUKA.J.):
Rule. Respondents waive service. Heard finally by consent of parties.
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2. This proceedings are under Article 226 of the Constitution of India filed by the Petitioners for a writ of certiorari for quashing and setting aside the approval and permission granted by some of the authorities who are Respondents in the present proceedings and for writ of mandamus directing the Respondent Nos. 1 to 19 to withdraw and set aside the approval and permission granted for development project of residential and commercial complex on the land bearing CTS NO. 381, 381/1 to 22 Village Anik, Tal. Chembur, MSD, Mumbai and for injunction from granting any further approval or permissions or renew the approval already granted to Respondent No.20 or any other person for or in connection with the development of the said land. (Hereinafter referred to as 'Oswal land'). The Petitioners have also prayed for declaration and for striking down D.C. Regulation 57(4) (c) and D.C. Regulation 29(5) as also the Table 10 C (5) as being ultra vires, unreasonable, arbitrary and capricious.
3. The Petitioners have also prayed for a writ of prohibition against Respondent Nos. 1 to 19 prohibiting and injuncting Respondent Nos. 1 to 19 or any of them from in any manner issuing or granting or renewing any further permissions/sanctions or approvals to Respondent No.20 or any other person for or in connection with the development of the residential and commercial complex or building or units or premises or structures on the Oswal land.
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4. The facts that are necessary to appreciate the background of the petition are thus :-
5. The Petitioner No.1 is Government of India Enterprise and carrying on business of manufacturing, producing, trading and supply of petroleum products including but not limited to petrol, diesel, aviation fuel, LPG and engine oil used in automobiles and other petroleum products.
6. Hindustan Petroleum Corporation Ltd. (hereinafter referred to as HPCL) the Petitioner No.1 set up its refinery situated on land admeasuring approximately 416 acers i.e. 16,84,268 sq.mtrs. at Mahul, Mumbai. Refinery of HPCL is situated in the Special Industrial Zone (I-3 zone) reserved for heavy industries in the sanctioned Development Plan for Greater Mumbai. The refinery of BPCL, Government of India Enterprise is opposite the refinery of HPCL. Rashtriya Chemical and Fertilizers Ltd. also has its industry in the immediate vicinity of the Petitioners refinery. The Bhabha Automic Research Centre at Trombay is also situate in the close vicinity of the refinery of Petitioner No.1. In the year 2005, HPCL acquired land adjacent to its refinery admeasuring approximately 2,30,407.40 sq.mtrs. bearing CTS NO. 382, 382/1 to 22 of Village Anik, Tal.
Chembur, MSD and separated from the refinery land of the Petitioner No.1 only by a 18.3 mtrs. side road from Ahmedabad Printing and Calico Mills Co. Ltd.
under an auction sale conducted by the Official Liquidator of Calico Mills under ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 7 wp1973_11 orders of the High Court of Gujarat for a consideration of Rs.239 crores. It is the case of the Petitioners that the said plot has been acquired for the expansion of the Petitioners' existing refinery in view inter alia of its location in the immediate proximity of the existing refinery. The said plot acquired by the Petitioners in the auction sale as aforesaid is also situated in Special Industrial Zone (I-3). It is the case of the Petitioners that for the purpose of manufacturing, producing and marketing petroleum products, HPCL is required to import and store petroleum and crude oil, Naphta and other raw materials which are all higher inflammable and to store the finished petroleum products manufactured by it like petrol, HSD, LPG etc. HPCL has been utilising about 117 storage tanks on the refinery land with an aggregate storage capacity of 1188860 KL approximately. It is submitted that at any given point in time, the said storage tanks would contain oil and petroleum products of over about 1188860 KL. It is the case of the Petitioners that HPCL under advice and sanction of its parent Ministry, purchased adjacent property of Calico Mills admeasuring approximately 230407 sq.mtrs. with a view to store crude oil, finished petroleum and other petroleum products and for setting up other ancillary and supplementary facilities in connection therewith.
7. It is the case of the Petitioners that immediately adjacent to the plot purchased by the Petitioner No.1 i.e. Calico Mills Co. Ltd., the property bearing CTS NO. 381, 381/1 to 22 is acquired by Respondent No.20 which was originally owned by erstwhile Union Carbide Ltd. which was a chemical factory and was ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 8 wp1973_11 rightly placed in heavy industrial zone alongwith all other similar industries in and around the vicinity. The said land of Respondent No.20 was also in Special Industrial Zone i.e. (I-3).
8. It is the case of the Petitioners that in June 2006 the Petitioners learnt that Respondent No.20 i.e. Oswal Agro Mills Ltd. (hereinafter referred to as Oswal) had proposed to construct a residential and commercial complex in its property situate in I-3 zone. On 19th June, 2006, the Public Notice came to be published by Maharashtra Pollution Control Board for 'Environmental Public Hearing' informing the members of public that various companies had proposed to develop various properties including Oswal and hearing was to be conducted from environmental angle about those projects. By the said notice all persons including bonafide residents, environmental groups and others likely to be affected were allowed to participate in the public hearing and to make oral and written submissions.
9. In response to the said public notice, the Petitioners filed their objection by their letter dated 11th July, 2006 strongly objecting to the approval being granted to Oswal on various grounds including involvement of security risk. In the said representation, the Petitioners submitted that refinery itself was a high security area and a residential complex coming close to the refinery, would make refinery ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 9 wp1973_11 a easy target for any terrorist action. It was submitted that even during unforeseen circumstances such as riots, mob attacks etc. the refinery would face maximum security risk. The Petitioners submitted that in so far as Calico Mills land is concerned, the same was acquired by HPCL with a view to install large tanks to store crude oil and finished petroleum products and to set up other equipments and manufacturing units. This was in line with the expansion project of its refinery undertaken by HPCL and the same would be for the benefit of public at large. The Petitioners' representative attended the public hearing on 19th July, 2006 and opposed the proposal. The Petitioners by their letter dated 17th July, 2006 to Principal Secretary, Urban Development, Mantralaya, Mumbai made a representation and raised objections strongly for granting any approval to the Oswal on the said property for any residential and commercial projects to erect and/or build and/or construct within and around the vicinity of the industrial zone and in particular near to the refinery of HPCL. It is the case of the Petitioners that since nothing transpired in regard to the development of the said plot for two years, the Petitioners believed that Respondent No.20's proposal had been shelved and that no permissions were granted to Oswal on the basis of the objections raised by the Petitioners.
10. It is the case of the Petitioners that Petitioners raised objections in respect of the other proposals for development on some other plots adjacent to and/or in the ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 10 wp1973_11 immediate vicinity of HPCL's said refinery land/additional land, including by Metal Box Company and by Apar Ltd. on similar grounds. By letter dated 22nd July, 2008, the Municipal Corporation sought no objection from the Petitioners to the proposal of development of plot CTS No. 625 proposed to be developed by M/s.K.Raheja Co. Pvt.Ltd. The Petitioners by their letter dated 8th August, 2008 conveyed their objections in respect of the permission being granted to M/s.K.Raheja Co. Pvt.Ltd. on various grounds including on the ground of security risk. The Petitioners by their further representation dated 29 th August, 2008 to the Chief Secretary, Home Department raised strong objections to any planning permission being granted for residential/commercial use of plots in the vicinity of the refinery of the Petitioners and the said additional land, including proposal of Oswal on the adjoining plot. The meeting was held on 29th February, 2008 with various ranking State Government Officers when safety aspects of the HPCL refinery was also discussed. The Petitioners placed on record, their objections by their letter dated 14th January, 2009, 23rd February, 2009, 5th May, 2009 and 28th May, 2009. It is the case of the Petitioners that in October, 2010, the Petitioners noticed that the existing structure of the factory on the plot owned by Oswal had been demolished and galvanized sheets had been put up on the periphery of the plot, the Petitioners by their letter dated 15th October, 2010 addressed to the Municipal Corporation requested to intervene and arrange to stop construction of residential/commercial construction near the refinery of HPCL. By another letter ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 11 wp1973_11 dated 15th December, 2010 the Petitioners made similar representation to the Chief Secretary to the Union of India and various other authorities calling upon them not to grant any permission to change the use from industrial to residential or commercial. The Municipal Corporation by their letter dated 28th October, 2010 informed the Petitioners that the development around the refineries were being carried out by Oswal as per the Development Control Regulations and as such legally the development could not be stopped by the Corporation. It was further stated that if there were any further grievances in that matter, the Petitioners could approach the Urban Development Department, Government of Maharashtra. It is the case of the Petitioners that upon making further enquiries, in the month of February, 2011, the Petitioners came to know that permissions have been granted by the concerned authorities to Oswal permitting construction of a residential and commercial complex on the said Oswal Property without intimation to the Petitioners, behind the back of the Petitioners, inspite of the objections raised by the Petitioners. It is the case of the Petitioners that on or about 12th February, 2011, the Petitioners received certified true copies of the some of the permissions/sanction granted by various authorities in favour of Oswal.
11. It is the case of the Petitioners that on 10th January, 2011, inspection was carried out by Intelligence Bureau of the Government of India in the refinery of ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 12 wp1973_11 HPCL and report was prepared in that regard with reference to various security measures regarding the refinery. The Petitioners has highligthed part of such report of Intelligence Bureau of the Government of India in para (28) of the petition. Relevant part of report of the Intelligence Bureau of the Government of India as setout in para (28) of the petition is as under :-
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 had 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 alloted 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 ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 13 wp1973_11 installation.
12. The Petitioners have also annexed copy of the Minutes of the Meeting held on 5th February, 2011 under the chairmanship of Principal Secretary (Home/Special) regarding the security threats to HPCL which Minutes came to be forwarded to the Petitioners by office of the Home Department of State of Maharashtra. From the perusal of the said Minutes at page 184 and 185 of the Petition, it appears that the said meeting held on 5th February, 2011 was attended by the Executive Director and various other representatives of HPCL and also officers of Urban Development Department, Joint Police Commissioner, CISF etc. In the said meeting, the representatives of HPCL submitted that it was necessary to immediately stop construction of residential or commercial buildings by Oswal.
The translation of said Minutes of the meeting held on 5th February, 2011 reads as under :-
The representatives of the Company lodged their protest and complaint that the company felt cheated by the development authorities as they had granted permission for private construction on the property adjacent to the Refinery of Hindustan Petroleum Corporation of India at Chembur. In the Refinery, the business of the manufacturing of Petroleum Products from Crude Oil is being carried on. Because of inflammable articles there, in case there was any fire, explosion or gas leakage, it would be difficult to control the situation in case of major disaster on account of narrow road. Similarly, it could be a treat to the life of the residents. Accordingly, the representative of the Company ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 14 wp1973_11 submitted that it was necessary to immediately stop construction of residential or commercial buildings.
The Principal Secretary (Special) enquired as to whether there was any international provision providing for distance to be maintained between the Refinery and the proposed construction, to which Company representative clarified and responded that there is no written provision to that effect. Nevertheless, from the point of view of security and safety a distance of 500 mtrs. as buffer zone was required to be maintained. Thereupon, the Dy. Secretary, Urban Development Department enquired whether the Company was willing to take possession of the said portion of 500 mtrs., to which the Company's representative replied that they will think over the same.
The Principal Secretary (Special) thereupon directed the Company's representatives to inform and make necessary representation to the Brihanmumbai Mahanagar Mahapalika in respect of the distance to be maintained between Refinery and the proposed construction, as there is no international provision in that respect. In that respect, the Company should make representation after studying the judgment of the Hon'ble Supreme Court in other matters. The Principal Secretary (Special) further directed the Company to inform the Urban Development Department within 15 days whether the Company was willing to take possession of a portion of 500 mtrs. from the neighboring property and plant trees and carry on other appropriate activities so that the Government can take appropriate decision in accordance with the law and thereafter, he terminated the meeting with vote of thanks to the persons present in the meeting.
13. It is the case of the Petitioners that the Petitioners learnt that in or around February 2011 various permissions/approval were granted to Oswal and the ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 15 wp1973_11 Petitioners were kept in the dark of such permissions/approvals. It is the case of the Petitioners that as far as Petitioners are aware, actual construction work on the said site had not started by Oswal and no excavation had been done prior to 16th September, 2011. HPCL filed the present petition for writ of certiorari, mandamus and prohibition seeking prayer for setting aside the approval and permission granted by the authorities in favour of Oswal relating to development and change of user/zone of plot NO.CTS 381, 381/1 to 22 of village Anik, Tal.
Chembur, MSD, Mumbai and from prohibiting the authorities from granting or renewing any further permission/approval to Oswal in respect of the said plot.
The Petitioners thereafter made an application for interim reliefs on 10 th October, 2011. This Court passed the following order :-
1. Notice to the respondents, returnable on 21-11-2011.
2. Over and above regular service, Hamdust is also permitted.
3. During the course of hearing, it is pointed out that there is likelihood of environmental problem and the residents in the area may be affected if construction activities which is adjacent to the Refinery is permitted. It is also pointed out that except pillars, no construction has been made.
Considering the said submissions, it is directed that status quo prevailing as on today may be maintained by respondent No.20 and no further construction may be carried out till further orders of this Court.
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14. It appears that the notice as well as papers and proceedings were served on Oswal by HPCL after 10th October, 2011. The matter was again heard by the Division Bench of this Court on 18th October, 2011 when Oswal appeared through the learned counsel and opposed the petition. In the said Order, the Division Bench observed prima-facie that the State Government while permitting conversion of I-3 to commercial in favour of the Respondent No.20 had not taken into consideration the relevant safety aspects. It was observed that larger issues arose for consideration of this Court which required deeper scrutiny and the issues raised by the Petitioners regarding safety from apprehended terrorist activity as well as considering the fact that there was also a risk of public health and pollution. Division Bench accordingly directed that ad-interim order granted earlier shall continue till the next date of the hearing. It was, however, made clear that the points whether the ad-interim reliefs required to be continued further or whether the matter is required to be dismissed at the admission stage or whether the writ petition is required to be admitted, all those questions were kept for consideration on the next date of the hearing. It was made clear that the question about vacating/modifying or continuing the ad-interim relief would be decided on the next date i.e. 21st November, 2011 when the matter was directed to be placed on Board for admission. At the request of the learned counsel for Oswal, this Court directed HPCL not to carry out any further development activity on the Calico plot of the Petitioners until further orders of the court. The matter ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 17 wp1973_11 was thereafter adjourned on few occasions for completion of pleadings and on other grounds. It was decided to hear the matter finally by consent of all the parties. The Petition was resisted by Municipal Corporation, Director of Town Planning, Environment Department, Maharashtra Pollution Control Board, Commissioner and Oswal by filing affidavits.
15. Shri F.D'Vitre, Senior Advocate appearing for the Petitioners submitted that the Municipal Corporation permitted change of user in respect of the Oswal plot from special industrial to residential or commercial without following mandatory statutory provisions, without application of mind, contrary to law and without complying with the statutorily prescribed procedures. It is submitted that NOC of the Petitioners was not obtained and change of zone/user had been permitted despite the Petitioners' strong protest and objections. It is submitted that plans sanctioned was in the teeth of the obvious security risks associated with permitting residential/commercial development on a plot adjoining and/or in close proximity to a refinery which is situated in the Special Industrial Zone. The Petitioners submitted that the Respondents had not taken into consideration the risks involved and the serious security threats and reasonable perception of huge potential risk of damage and sabotage of vital national asset and installation by permitting residential and commercial development to be put up within the immediate vicinity of HPCL's refinery. It is submitted that the operation of refinery ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 18 wp1973_11 and ancillary installations, including storage facilities, releases Volatile Organic Compounds into the atmosphere, depending on the type of crude processed and the process and control measures employed. Some of these Volatile Organic Compounds are carcinogenic in nature exposure to these compounds, particularly at the height of funnel-chimney was likely to cause various serious health hazards.
It is submitted that any residence/commercial complex within the immediate vicinity of the refinery, would put the public at large in such residential and commercial complex to grave risk of exposure to such hazardous and dangerous compounds. It is submitted that it was imperative that no residential or commercial complex should be allowed to be developed or set up in the Special Industrial Zone or in its periphery, without appropriate provisions of a buffer zone between such heavy industries like refinery of HPCL and the residential/commercial complex. It is submitted that authorities have totally ignored and not considered the high noise level in and around the refinery areas which could be deleterious to the health and safety of the proposed residential and commercial users and prolonged exposure to higher noise levels is likely to cause permanently damage to humans, in view of the fact that refinery works 24x7 including at night.
16. The Petitioners also relied upon letter dated 5th March, 2012 from the Government of India, Ministry of Home Affairs addressed to Shri Rajiv Chavan, Advocate representing Union of India thereby giving written instructions in the ::: Downloaded on - 09/06/2013 18:25:04 ::: kvm 19 wp1973_11 above writ petition, a copy whereof was submitted by the Learned Counsel appearing for Union of India. The relevant portion of the said letter are setout thus :-
2. With reference to the extract of the report submitted after the security inspection of HPCL carried out in January 2011 and as mentioned in the Writ Petition, the views/comments of MHA are as follows :-
i) Our vital installations, including vital installations located near the coastline, are vulnerable to threat from inimical forces in view of the prevailing security situation.
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 16.01.2012 (copy enclosed). As regards, the possibility of such construction being used by security agencies, the matter needs to be examined in depth in consultation with all concerned.
17. The Petitioners relied upon letter dated 16th January, 2012 from the Government of India, Ministry of Home Affairs to the Chief Secretary, State Government of Maharashtra explaining their views on the issue of safety and security risk posed by high-rise residential-cum-commercial structures adjoining HPCL refinery at Mahul, Chembur, Mumbai. The relevant portion of the said ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 20 wp1973_11 letter reads thus :-
2. It is felt that the construction of high-rise residential-cum-commercial structures on the site adjoining the above-mentioned refinery of M/s.Hindustan Petroleum Corporation Ltd.(HPCL) in Mumbai, would be detrimental to the security of the vital installation.
3. Accordingly, State Government of Maharashtra is requested to review the matter of permissions and clearances granted to M/s.Oswal Mills Pvt. Ltd. for change of land use and construction of such high-rise structures at the said site, in view of the safety and security risks involved.
18. The Learned Counsel Shri F.D'Vitre submitted that authorities ought not to have sanctioned the change of user in favour of Oswal. It is submitted that the authorities ought to have considered Intelligence Bureau's report. NOC was also required to be obtained from the Petitioners before granting any approval of plan or any other sanction. The Learned Counsel submitted that Municipal Corporation ought to have considered security aspects which was in public interest and ought to have rejected the proposal submitted by Oswal. The Learned Counsel submitted that according to the report of Intelligence Bureau, oil installations have become more vulnerable to threat from inimical forces as revealed during earlier interrogation of various arrested militants in the country over last few years. The Learned Counsel also emphasized that according to Intelligence Bureau, during interrogation of David Coleman Headly during his ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 21 wp1973_11 nine visits to India, he had identified a large number of sensitive establishments including economic targets like Mumbai Stock Exchange, World Trade Tower, Oil Installations, BARC Mumbai etc. It was further opined in the said report of Intelligence Bureau that any planning to construct high rise residential building at the site of demolished factory of M/s.Oswal Agro Mills Ltd., Chembur (near HPCL refinery) would be detrimental to the security/safety of the vital installation. The Learned Counsel for the Petitioners relied upon the affidavit in reply dated 11th December, 2011 filed by Assistant Commissioner of Police. The relevant paragraphs of the said affidavit are setout herein :-
6. I state that I agree with the Paragraph No. 26of Writ Petition filed by Hindustan Petroleum Corporation Ltd. (HPCL). It is true to say that as per police record Hindustan Petroleum Refinery is A catagory Vital installation in terms of National importance. HPCL Refinery which has been declared as "Prohibited Area" under the Official Secret Act 1923.
I state that it is true 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. 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, Naphtha, Crude oil etc.
7. I state regarding paragraph No.28 that the threats assessment as per the report of inspection of Industrial Security carried by Intelligence Bureau of ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 22 wp1973_11 Government of India as submitted by Hindustan Petroleum Corporation Ltd. to the Hon'ble Court in their Petition is self explanatory and we rely upon it.
19. The Learned Counsel relied upon Regulation 16(a), (e) and (n) of Development Control Regulations which reads as under :-
16. Requirement 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;
(e) if the use of the said site is for a purpose which in the Commissioner's opinion may be source of danger to the health and safety of the inhabitants of the neighbourhood;
(n) if the proposed development is likely to involves damage to or have deleterious impact on or is against urban aesthetics or environment or ecology and/or historical/architectural/aesthetical buildings and precincts or is not in the public interest.
20. The Learned Counsel submitted that statutory discretion power of Municipal Commissioner to grant approval of plan is not mandatory. It is at the discretion of the Municipal Commissioner or authority to grant permission after considering various aspects including security aspect or to refuse it if he was not satisfied. The Learned Counsel submitted that power of Municipal Commissioner ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 23 wp1973_11 in granting such approval is coupled with duty.
21. The Learned Counsel for the Petitioners submitted that conditions mentioned in Regulation 57 are not exhaustive. It was submitted that though a party has right to get permission for development if conditions in D.C.Regulations are complied with, Municipal Commissioner is still bound to consider all relevant factors including security aspect before granting any approval for development.
He also placed reliance on powers of the Commissioner under Regulation 64(b) which empowers the Municipal Commissioner to grant special permission permitting modification to any of the dimensions prescribed by Development Control Regulation for the reasons to be recorded in writing where it clearly demonstrable hardship is caused, except those relating to floor space indies unless otherwise permitted under Development Control Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood. It is thus submitted that though such discretionary power is given to the Municipal Corporation to modify any of the dimension in case of hardship such relaxation is not permitted under Regulation 64(b) if it affects the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood. The Learned Counsel submitted that these safeguards in respect of health, safety, fire safety, structural safety and public safety of the inhabitants ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 24 wp1973_11 has to be read into the powers of Municipal Commissioner under Regulation 16(a) (e) and (n).
22. Relying upon Regulation 16(a) (e) and (n) of D.C.Regulations, the Learned Counsel for HPCL submitted that safety and security aspect health, safety, fire safety, structural safety and public safety is of paramount consideration and Municipal Commissioner was duty bound to consider the same under Regulation Regulation 16(a) (e) and (n) and more particularly the same being in public interest. He submitted that Corporation ought to have considered Intelligence Bureau Report and other material available on record before granting any permission for development and therefore the same is contrary to Regulation 16(a) (e) and (n). The Learned Counsel submitted that Oswal land could not be permitted to be used for construction of buildings for residential cum commercial use as it was dangerous to construct any building thereon or it might be danger to the safety for the inhabitants of the neighbourhood including refinery of the Petitioners and it would involve damage to or have deleterious impact on or is against urban aesthetics or environment or ecology and the same was not in public interest. The Learned Counsel submitted that the stand of the Municipal Corporation that since the proposal of Oswal was as per the D.C.Regulations, the same could not be withheld by the Corporation from security point of view unless there was specific order of the authority is totally contrary to the power and duty ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 25 wp1973_11 of the Municipal Commissioner under Regulation 16(a) (e) and (n) read with Regulation 64(b). The Learned counsel submitted that the Corporation failed in its duty to consider the security aspect and had sanctioned plans of Oswal and allowed change of user mechanically without applying its mind and without considering the public interest. The Learned Counsel placed reliance on the Judgment of this Court in case of TCI Industries Limited vs. The Municipal Corporation of Greater Bombay and others1 delivered by the Division Bench of which one of us (P.B.Majmudar, J) was a Member. The said Judgment of this Court considered the powers and duties of the Municipal Commissioner under Regulation 16(n) of D.C. Regulations read with Section 46 of M.R.T.P. Act, 1966.
23. The Learned Counsel placed reliance on the Judgment of the Apex Court in Rameshwar Prasad and others vs. Union of India2 more particularly paragraphs 240 to 243. The Learned Counsel submitted that since the sanction for development of plan in favour of Oswal is granted by the Municipal Commissioner by ignoring the relevant material i.e. security aspect and Intelligence Bureau Report which he ought to have taken into consideration, applying the principles of wednesbury, the said sanction granted by the Municipal Commissioner should be closed. The Learned Counsel for the Petitioners relied upon the Judgment of the Division Bench of this Court in case of Ikram Suleman 1 Writ Petition No. 2859 of 2006 order dated 19th December, 2011 2 (2006) 2 Supreme Court Cases 1 ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 26 wp1973_11 Qureshi vs. Mumbai Building Repairs and Reconstruction Board and others3.
The Learned Counsel relied upon this Judgment in support of his proposition that the power to grant a relaxation under Regulation 64 (b), is coupled with duty and that the Municipal Commissioner must apply his mind to all the circumstances which are considered to be relevant and germane by the subordinate legislation.
The Learned Counsel submitted that the requirement of health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood could not be brushed aside and ought to have been taken into account by the Municipal Commissioner before he approved plan and permitted change of user. The Learned Counsel for the Petitioners submitted that the Municipal Commissioner could not have permitted the change of user of this type as the same could be done only under Section 37 of the MRTP Act. The Learned Counsel submitted that though the Petitioners had raised objection on the issue of safety and security while opposing any permission being granted to Oswal at the public hearing, none of these issues raised by the Petitioners have been considered by any of the authorities while granting sanction for development in favour of Oswal. The Learned Counsel submitted that the sanction of plan by the Municipal Corporation in respect of development granted is for ground + stilt + 8 upper floors itself comes within the definition of high rise under the provisions of D.C.Regulations. The Learned Counsel submitted that Oswal had submitted 3 2011(3) Maharashtra Law Journal 936 ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 27 wp1973_11 amended plan to the Municipal Corporation and have sought for environmental clearance for such amended plan in respect of 24 storey construction which is highly objectionable.
24. On the other hand, the Learned Counsel Shri Chinoy, appearing for Oswal submitted that the Petitioners have suppressed true and correct facts and have made incorrect statements in the petition and more particularly in paragraphs 20 and 21 of the writ petition. The Learned Counsel submitted that the allegations of the Petitioners in para (20) that no part of the building had been put up and no excavation commenced to the knowledge of the Petitioners was incorrect statement. The Learned Counsel submitted that even the statement made before this court on 10th October, 2011 that no construction was raised by Oswal except pillars was also incorrect statement. The Learned Counsel submitted that the work of construction of building No. 9 consisting of 7 wings commenced on the property of Oswal on 20th January, 2011 and piling work for the construction of 6 wings of Building NO.9 was already completed. He submitted that construction of 4 wings of Building NO.9 upto plinth level was completed. Construction of 3 wings of Building No.9 upto first slab was duly completed. Second slab was nearing completion and was visible from any distance around the property of Respondent No.20. The Learned Counsel submitted that there were more than 375 workmen working on the site of Respondent No.20 on the date when the ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 28 wp1973_11 application was made by the Petitioners before this Court for ex-parte order against Oswal. The Learned Counsel also submitted that similar incorrect statement was also made in paragraph (41) of the writ petition. The Learned Counsel submitted that in para (19) of the petition, there was an another incorrect statement made by the Petitioner that each of the permissions granted by the authorities was in violation of mandatory statutory provisions. The Learned Counsel submitted that this court should not entertain the present petition on the ground that though the plan was sanctioned by the Corporation prior to 11th November 2010 by the Municipal Corporation in respect of three buildings, the Petitioners filed the present petition only on 16 th September, 2011 The Learned Senior Counsel for Oswal submitted that not only there was gross delay in filing the petition but there was also gross delay in making application for ad-interim reliefs which came to be made for the first time on 10 th October, 2011. The Learned Counsel vehemently submitted that though the application for interim reliefs was made on 10th October, 2011 neither copy of the petition with annextures was served upon Oswal nor any notice of making application for ad-interim relief was served. He submitted that the Petitioners obtained the order of status quo against Oswal ex-parte.
25. The Learned Counsel for Oswal submitted that though various details about sanction of plan, extent of construction carried out by Oswal and about conduct of the Petitioners in obtaining ex-parte order was demonstrated in detail in ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 29 wp1973_11 affidavit of reply filed by Oswal, no explanation came to be given by the Petitioners in their rejoinder.
26. The Learned counsel for Oswal placed reliance on the unreported Judgment of this Court in the Case of Maganlal Kuberdas Kapadia Vs. Themis Chemicals Ltd.4 in support of his plea that since Petitioners had alleged to have made incorrect statement in the petition and had obtained ex-parte status quo order behind the back of the Respondents and concealed material facts, this court should immediately vacate the ad-interim orders on the solitary ground of condemnable conduct on the part of the Petitioners. The Learned Counsel therefore submitted that even otherwise on the ground of delay in approaching this Court and in the meanwhile Oswal had already made substantial progress in some of its building and more than 350 workmen working on the construction site, this court should not entertain this grossly delayed petition. The Learned counsel also placed reliance on the photographs annexed to the affidavit in reply filed by Oswal on 17th October, 2011 pointing out the stage of construction carried out by Oswal. The Learned Counsel for Oswal submitted that after public hearing for environment was held on 19th July, 2006 and Ministry of Environment and Forest had granted NOC on 21st October, 2008 in favour of Oswal, on 1st September, 2009, sanction for change of user of the property of Oswal from 4 Appeal No. 332 of 1991 dated 22nd April, 1991 ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 30 wp1973_11 Special Industrial Zone (I-3) to Local Commercial Zone (C-1) was made and granted. On 11th November, 2010, IOD was issued by Municipal Corporation for Building No. 9 with 7 wings to Oswal. On 11 th January, 2011, the Corporation issued Commencement Certificate for construction of Building No. 9 with 7 wings. The Learned counsel submitted that the construction had already commenced on 20th January, 2011 and piling work for the construction of 6 wings of Building NO.9 was completed. Further construction of 4 wings of Building No. 9 upto plinth level was completed, construction of 3 wings of Building No. 9 upto first slab was duly completed and the second slab was nearing completion. The Learned Counsel for Oswal strongly placed reliance on the Minutes of the Meeting held on 5th November, 2011 under the Chairmanship of Principal Secretary (Home/Special) regarding the security threats to HPCL at Chembur.
The said meeting was attended by various officers of HPCL, BPCL, Executive IPS, Deputy Secretary, Urban Development Department, Joint Police Commissioner, representatives of CISF etc. In the said meeting it was recorded that representatives of the Petitioners clarified that there was no written provision providing for distance to be maintained between the refinery and the proposed construction. However, from the point of view of security and safety a distance of 500 mtrs. as buffer zone was required to be maintained. It is recorded in the said Minutes that Deputy Secretary of Urban Development Department enquired whether the company was willing to take possession of the said portion of 500 ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 31 wp1973_11 mtrs. to which the Company's representative replied that they will think over the same. In the said meeting, it is recorded that the Principal Secretary (Special) directed HPCL's representative to inform and make necessary representation with the Municipal Corporation in respect of the distance to be maintained between refinery and the proposed construction. The Principal Secretary directed the HPCL to inform the Urban Development Department within 15 days whether the company was willing to take possession of a portion of 500 mtrs. from the neighbouring property and plant trees and carry on other appropriate activities so that the Government could take appropriate decision in accordance with the law.
It is submitted by the Learned Counsel for Oswal that the Petitioners did not inform Urban Development Department about Petitioners' willingness to take possession of 500 mtrs. from neighbouring property and plant trees and carry on other appropriate activities. It is submitted that though the Petitioners had purchased Calico plot which is in industrial zone, the Petitioners were deliberately not willing to use the said Calico plot as buffer zone on the ground that the Petitioners wanted to use the same as refinery or for other ancillary purposes. The Learned Counsel submitted that HPCL wanted to save its own commercial interest and want to exploit commercial interest of Oswal in the plot in question. The Learned Counsel for Oswal relied upon a sketch plan showing distance of 500 mtrs. from High Court Building. He emphasized that the said distance of 500 mtrs. is enormous distance for the purpose of security. The ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 32 wp1973_11 Learned Counsel submitted that though the Petitioners have Calico plot available for buffer zone, instead of using the same as buffer zone to tackle any alleged security threat, the Petitioners directly or indirectly want the plot of Respondent No.20 to be used as buffer job. The Learned Counsel submitted that even according to the Petitioners, as stated in their letter dated 23rd February, 2009 at page 79 of the petition, the plot of Oswal is at 400 mtrs. distance from refinery of HPCL and is adjacent to the newly purchased Calico land. It is further stated in the said letter that M/s.Metal Box Pvt. Ltd. is located about 125 mtrs. from the refinery and plot of M/s.Apar Industries is sharing compound wall of the refinery.
It is stated that M/s.Bombay Industrial Container Yard is about 25 mtrs. away from the refinery. It is further stated that SRA Building is about 50 mtrs. away from refinery and on their building SRA has constructed 56 buildings consisting of 6,474 housing units and 152 shops. The Learned Counsel submitted that though as per D.C. Regulations, distance of 52 mts. is required, there was more than 500 mtrs. distance between the refinery plot of the Petitioners and the plot of Oswal.
27. The Learned Counsel appearing for the Oswal submitted that meeting held on 5th February, 2011 under the chairmanship of Principal Secretary in which various suggestions were made by the Petitioners' representative regarding buffer zone was held much after the submission of Intelligence Bureau Report. The ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 33 wp1973_11 Learned Counsel submitted that authorities including Municipal Corporation and Ministry of Environment and Forest had granted approval after considering all aspects including security aspect.
28. The Learned Counsel for Oswal submitted that the Municipal Corporation in their letter dated 9th August 2011 to the Urban Development Department while making various suggestion for consideration had conveyed that the Petitioners did not acquire buffer zone which could be used as such for security and safety reasons. The Learned Counsel also invited our attention to various other suggestions given by the Municipal Corporation in the said letter. The Learned counsel for the Oswal submitted that Oswal had acquired valuable right in the property and such right is sought to be violated by the Petitioners under the guise of security threat. The Learned Counsel for the Oswal submitted that HPCL instead of using the Calico plot as buffer zone has sought to restrict Oswal from exercising their right over the property under the guise of security threat and such action on the part of HPCL falls within the ambit of Article 300A of Constitution of India. The Learned Counsel submitted that Oswal has right to construct on the plot in question and such right is a valuable right and cannot be regulated in terms of regulating statute and unless there exists a clear permission the same cannot be taken away. In support of his submission, the Learned Counsel for Oswal placed reliance on the following Judgments :-
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1. T.Vijayalakshmi and others vs. Town Planning Member and another reported in (2006) 8 Supreme Court Cases 502.
2. Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke & Chemicals Ltd. & Ors. reported in (2007) 8 Supreme Court Cases 705.
3. F.B.Taraporwala & Ors. vs. Bayer India Ltd. & Ors. reported in (1996) 6 Supreme Court Cases 58.
4. Bharat Petroleum Corporation Limited & Amitabha Sengupta vs. State of Maharashtra & Ors. reported in 2009 Vol. 111(6) Bom.
L.R. 2243.
5. Indian National Trust for Art and Cultural Heritage vs. Chennai Metropolitan Development Authority reported in 2003 (4) CTC 513.
29. The Learned Counsel for Oswal submitted that several residential buildings are already constructed in the same vicinity around and closure to the refinery of the Petitioners and therefore security threat alleged by the petitioners has no substance. The Learned Counsel for Oswal relied upon an interim order in case of Bharat Petroleum Corporation Limited Vs. State of Maharashtra & Ors.5 passed by Division Bench of this Court in support of his plea that this Court has 5 Writ Petition No. 1891 of 2007 order dated 11th December, 2008 ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 35 wp1973_11 refused to grant stay of development in the Petition filed by Bharat Petroleum Corporation Ltd. on the ground that in the vicinity of the refinery of Bharat Petroleum Corporation Ltd. other constructions which were existing including residential buildings and Bharat Petroleum Corporation Ltd. allowed the said construction to come up by maintaining silence for long period of time. It was also submitted that in the said Order, this court considered that only way out for BPCL was to take steps to acquire the land in accordance with law. The Learned Counsel submitted that on the ground of delay in filing petition by Bharat Petroleum Corporation Ltd., this court has refused to grant stay from development of the property closer and in the vicinity of refinery of Bharat Petroleum Corporation Ltd. The Learned Counsel placed reliance upon the order passed by the Apex Court on 4th September 2009 in Civil Appeal No. 6063 of 2009 filed by Bharat Petroleum Corporation Ltd. against State of Maharashtra & Ors. arising out of order passed by this Court in writ petition filed in this court by Bharat Petroleum Corporation Ltd. The matter was settled by and between the parties including authorities. It was agreed that some of the buildings constructed under SRA shall be allotted to the Commissioner of Police, Mumbai for service quarters of their personnel by following the due procedure in that regard. Some of the buildings constructed under SRA scheme were agreed to be allotted to the Municipal Commissioner, B.M.C. It was agreed that Commissioner of Police , Mumbai would ensure round the clock vigilance along the 27.45 mtrs.
::: Downloaded on - 09/06/2013 18:25:05 :::kvm 36 wp1973_11 wide Mahul Road between BPCL premises and the premises of SRA Scheme. It was agreed that two police chowkies would be installed on strategic points on the western side of the scheme premises to maintain vigil.
30. Mr.D'Vitre, the Learned Counsel for the Petitioners also relied upon the Order passed by the Apex Court. The Learned Counsel for the Petitioners submitted that though in case of Bharat Petroleum Corporation Ltd. solution was made so as to avoid any security threat by allotting part of the premises to Government authorities and by providing continuous vigil by the police, no such safeguard has been provided in this matter.
31. The learned counsel for Oswal and learned counsel for the Municipal Corporation submitted that there was no enabling provisions in the present Development Control Regulations which obligates on the part of the Municipal Commissioner to consider security aspect while permitting change of user or before sanctioning the plan. The learned counsel representing Oswal as well as B.M.C. strongly placed reliance on Regulation 57 which provides for general conditions governing the uses permitted in an I-3 Zone. The learned counsel submitted that under Regulation 57(4)(c) of the D.C. Regulations, the Municipal Commissioner was empowered to permit use of lands in the special Industrial Zone (I-3 Zone) for any of the permissible users in Residential Zone (R-1 Zone) ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 37 wp1973_11 or Residential Zone with shop line (R-2 Zone) or for those in the Local Commercial Zone (C-1 Zone) subject to certain conditions. The learned counsel for Oswal and B.M.C. submitted that Oswal had complied with all the conditions imposed by the Municipal Corporation while permitting change of user under Regulation 57(4)(c) of the D.C. Regulations. The learned counsel submitted that under the said regulations, there was no such obligation on the part of the Municipal Commissioner to consider security aspect and therefore, unless there was enabling provisions in the Development Control Regulations which obligates on the Municipal Commissioner to consider security aspect, that he was not bound to consider the same while granting permission for change of user.
32. Learned Counsel for Oswal also placed reliance on the affidavit dated 10th December, 2011 filed by Mr.PV.Subba Rao on behalf of Ministry of Environment and Forest in the above matter. In the said affidavit, the Ministry of Environment, submitted that in the meeting held on 12-14th September, 2007, 25-27th October, 2007 and 28-29th March, 2008, the Expert Appraisal Committee had duly considered the relevant documents submitted by the project proponent and clarifications furnished in response to its observations, every parameter had been critically examined before recommending the project for environmental clearance. It is stated that Ministry had accorded environmental clearance to ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 38 wp1973_11 Oswal as per the provisions of Environment Impact Assessment Notification, 2006.
33. The Learned counsel for Oswal submitted that though Oswal had proposed extent of construction of 4,17,553 sq.mtrs. earlier, Oswal had decided to restrict his construction of FSI work and consequently while total plot of area of land remained the same built up area of 417553.73 sq.mtrs. reduced to 158445.59 sq.mtrs. The Learned Counsel submitted that issue of such reduction of proposed area of construction resulted in substantial reduction of 2,50,000 sq.mtrs. of the total built up area to be constructed. Accordingly Oswal submitted an application on 2nd November, 2010 with the Environment Department of the State of Maharashtra and the same is pending consideration/approval. The Learned Counsel however submitted that the present construction was well within the existing environmental clearance issued in 2008. The Learned Counsel submitted that in view of the reduction in area, the layout of the building was altered from the initial 16 buildings of 7 to 8 storeys to a lesser number of buildings having greater height/number of storeys. The Learned Counsel therefore prayed for dismissal of writ petition and to vacate ad-interim order passed by this Court.
34. The Learned Counsel Shri Kumbhakoni appearing for Municipal Corporation submitted copies of letter dated 26th October, 2006 from the Corporation to the Under Secretary, Urban Development Department. The ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 39 wp1973_11 Corporation informed the Urban Development Department that issue of security raised by HPCL is not within the purview of Corporation. The Corporation suggested that in order to ensure additional safety for the refinery installations, the HPCL could acquire a strip of land as per the requirement around their premises either by restoring to acquisition proceedings or by negotiation with the land owners. It was suggested that such strip of land could act as a buffer for additional safety to the installations of refinery. It was suggested that alternatively HPCL might restrict their activities by leaving an adequate strip of land as a vacant land from their compound wall creating a buffer zone within their premises as a safety precaution. It was suggested that HPCL could adopt modern methods of surveillance such as installation of C.C. T.V. Cameras etc. to protect the installation from any possible threat. It was submitted that the residential colony of HPCL was abutting the plot under reference. In the said letter Municipal Corporation stated that since there was no enabling provisions in the present Development Control Regulations/Sanctioned Development Plan by the State of Maharashtra to prescribe a buffer zone around installation of refinery etc., Municipal Administration could not withheld the permission as permissible under the present laws/regulations to the land owners in the vicinity of refinery complexes. The Corporation by another letter dated 21st April, 2007 reiterates the stand on the issue as stated in the earlier letter dated 26th October, 2010 and sought advice of Urban Development Department in that matter as Oswal was ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 40 wp1973_11 pressing very hard to allow user permissible in Local Commercial Zone on the land. The Learned Counsel also placed reliance on the notice issued by the State of Maharashtra on 27th February, 2009 in accordance with the provisions of Section 37(1AA) of Maharashtra Regional and Town Planning Act inviting suggestions and objections to the proposed special regulations for the safety and security of buildings to counter man-made disasters. The Learned Counsel also invited our attention to the Notice dated 21st March, 2009 issued by the Government of Maharashtra directing various Municipal Corporations including Municipal Corporation of Greater Mumbai to consider the provisions of security regulations published by means of the said notice viz-a-vis sanctioned development control regulation and adopt the more stringent provision for various aspects of development permission.
35. The Learned Counsel for the Corporation submitted that since the proposal submitted by Oswal to development was as per the prevailing rules and regulations, the same could not be withheld by Corporation from security point of view, unless there was specific order from the Competent Authority. The Learned Counsel submitted that since there are no clarifications received from the Urban Development Department, as per Municipal Commissioner's order dated 24th August, 2009 sanction has been granted for change of user from Special Industrial Zone (I-3) to Commercial Zone (C-1) as per Regulation No. 57(4) (C) ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 41 wp1973_11 of Development Control Regulations subject to various terms and conditions, subject to undertaking from Oswal that Oswal shall comply with the adverse clarification if any received from the Urban Development Department, Government of Maharashtra in future. The Learned Counsel submitted that Oswal has already given indemnity to the Corporation indemnifying for any legal consequences arising out of objection raised by HPCL or from any other organization/person if moved in any court restraining development plan.
36. In rejoinder, the Learned Counsel appearing for HPCL submitted that though the Petition was filed on 16th September, 2011, an application for interim reliefs was made on 10th October, 2011 as it took sometime to make an application for interim reliefs. Petitioners were exchanging correspondence with authorities earlier. The delay if any in making an application for interim relief is not deliberate and as soon as the petition was numbered, the application for interim relief was made. The Learned Counsel submitted that as far as service of notice and copy of petition is with annextures upon Oswal is concerned, the Learned Counsel fairly stated that notice in respect of making an application for ad-interim relief and for effecting service of petition with annextures, on Oswal was not done due to an inadvertent error on the part of the Petitioners and by office of the advocate representing HPCL. The Learned Counsel submitted that it was not a deliberate inaction on the part of the Petitioners or their advocates in ::: Downloaded on - 09/06/2013 18:25:05 ::: kvm 42 wp1973_11 not effecting service of the papers and proceedings in the writ petition and issuing advance notice before making application for ad-interim reliefs. The Learned Counsel submitted that in any event the matter was again heard by this Court on 18th October, 2011 at length after Oswal was served with copies of proceedings by HPCL on 12th October, 2011. The Learned Counsel submitted that on 10th October, 2011, this Court considered all the relevant aspects and was pleased to pass order of status quo against Respondent No.20. In so far as the submission of the Learned Counsel for Oswal that there was an alleged incorrect statement made in the petition and more particularly in para (19) that each of the permission granted by the Authorities in favour of Oswal was in violation of mandatory statutory provisions is concerned, the Learned Counsel for HPCL submitted that the said submission was not incorrect statement as according to the Petitioners, the Municipal Corporation as well as all the Authorities granted various permissions/sanctions in favour of Oswal without considering security aspect and also various other such objections raised by HPCL and also such sanction was in violation of the provisions of Development Control Regulations more particularly Regulation No. 16(a) (e) and (n). The Learned Counsel submitted that it was mandatory duty on the part of the Corporation to consider the security aspect in public interest before sanctioning the plans and since none of the authorities had considered this crucial aspect, according to the Petitioners, the submission made in para (19) that each of the permission was in violation of ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 43 wp1973_11 mandatory statutory provision is correct and cannot be considered as false and misleading statement as alleged by the Oswal. The Learned Counsel submitted that on these grounds therefore, the Court should not dismiss the petition and/or vacate ad-interim order as sought to be canvassed by the Learned Counsel appearing for Oswal.
37. In so far as submission of the Learned Counsel for Oswal that there was an incorrect statement made in the petition about the status of construction being carried out by Oswal is concerned, the Learned Counsel for HPCL submitted that when the Petition was drafted, that was the status noticed by HPCL. The Petition was lodged on 16th September, 2011. Oswal annexed copy of photographs showing the status of the construction alongwith their affidavit-in-reply on 17th October, 2011. The Learned Counsel therefore submitted that there was no substance in the submission made by Oswal about any alleged incorrect statement made by the Petitioners about status of construction on the plot of Oswal. In so far as the statement of Oswal that HPCL wants to use Calico plot for expansion of refinery purpose and thereby making Oswal's plot sterile and that though HPCL could have used Calico land as a buffer zone for the purpose of keeping distance of about 500 mtrs. from refinery plot of HPCL Petitioners did not want to use their own plot for the same is concerned, the Learned Counsel for HPCL submitted that change of user permission was granted by the Municipal ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 44 wp1973_11 Corporation in favour of Oswal on 1st September, 2009. He further submitted that HPCL has purchased Calico land in so far as in the year 2004-05 and the same was in I-3 zone. When HPCL purchased the said plot, there was no change of user permitted by the Corporation in favour of Oswal. The Learned Counsel submitted that HPCL has a right to use Calico plot under I-3 zone for the designated purpose provided therein. The Learned Counsel submitted that the proposed user of Calico plot by HPCL was for expansion of refinery and/or for ancillary use is in national and public interest whereas development of plot for residential and commercial purpose is for making profit by Oswal and was not of any public interest and/or national interest. The Learned Counsel submitted that if priority is given between national interest and private interest, this court should choose national interest and not private interest. The Learned Counsel for the Petitioners distinguished the Judgment cited by the Learned Counsel appearing for Oswal. The Learned Counsel submitted that in the year 2008, the permission granted by the authorities in favour of Oswal was relating to buildings having a height upto 7 to 8 floors whereas, the amended project consists of tall towers to extent of 24 floors with the height of 81.9 mtrs. which would be dangerous also to for the inhabitants in the said buildings and in the neighbourhood. As the project of the Oswal was in immediate vicinity of HPCL, such development would create serious health hazards also. HPCL denied the allegations of the Respondent No.20 that plot of Oswal was situate at the distance of about 475 ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 45 wp1973_11 mtrs. from boundary wall of HPCL refinery land. The Learned Counsel for the Petitioners submitted the plan annexed to IOD dated 11th November, 2010 showing the construction on the entire Oswal land and not only in any corner.
The Learned Counsel for HPCL referred to letter dated 13th April, 2011 from Government of India, Ministry of Petroleum and Natural Gas to Chief Secretary, Government of Maharashtra. In the said letter, Government of India after referring to Intelligence Bureau Report expressed that any development adjacent to the refinery of HPCL would make it an easy target for any terrorist activity. It was pointed out that tall buildings and/or other elevated facilities in the vicinity of refineries can make the installation highly vulnerable to the threat from considerable elements who might find easy access through these buildings to target the refineries. It was also pointed out that since there was only one approach road from north side to HPCL refinery which is always congested, in case of emergency such as industrial fire/accidents etc. response for reliefs/fire tanker/ambulance etc. would be delayed and this position might worsen due to increase in traffic due to additional vehicles of proposed occupants of Oswal Agro Mill's residential and commercial projects. Attention of State Government was invited to recent incident of fire at IOL's Depot at Jaipur causing damage to life and property that could happen due to any accident in an oil installation.
Government of India requested the Chief Secretary of State of Maharashtra to intervene in the matter for immediate stoppage of construction activities being ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 46 wp1973_11 carried out by Oswal adjacent to HPCL's refinery at Mahul, until the matter could be resolved without detriment to the safety of HPCL security Chief Secretary was also requested to advise Municipal Corporation to engage in a discussion with HPCL and Intelligence Bureau to ensure that their security concerns are addressed appropriately and suitable amendments made in the building plans if required.
38. The Learned Counsel for HPCL submitted that Petitioners had consistently objected to multi storied buildings within close proximity of the Petitioners refinery. It would be safety and security risks to the refinery and installation which are national assets. The Petitioners had objected to the proposed developments on the Metal Box land and SRA buildings also. The Learned Counsel submitted that Petitioners' consent was sought in regard to the proposed development on Apar plot, which consent was refused by the Petitioners. The Learned Counsel submitted that as a result of the objections raised by the Petitioners, no occupation certificate has been granted to the building constructed by SRA and Metal Box Company land and the said buildings are not occupied and are lying vacant. The Learned Counsel placed reliance on the Judgment of Supreme Court in case of M.C.Mehta and another vs. Union of India and others6 in support of his plea that when hazardous industries are located in any areas, every care must be taken to see that large human habitation does not grow 6 AIR 1987 Supreme court 965 ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 47 wp1973_11 around them. The Learned Counsel invited our attention to the recent incident of fire taken place at Indian Oil Limited's depot at Jaipur refinery. The Learned Counsel submitted that the effect of fire in Jaipur depot was felt within 5 km from the plot of such oil depot and therefore this court should consider all these crucial aspects and prayed for directions against Ministry of Environment to reconsider the parameters of security aspects, for remand of the matter before the Municipal Corporation for re-considering the plans/applications submitted by the Oswal for change of user and for development after considering the objections filed by the Petitioners, Intelligence Bureau Report, affidavit filed by Police Department, objection raised by Ministry of Petroleum and Natural Gas, Government of India, Ministry of Home Affairs in its letter dated 5 th March, 2012 and 16th January, 2012 addressed to its advocate and after giving the Petitioners an opportunity of being heard by the Corporation and other authorities.
39. We have heard the learned counsel appearing for the parties at length, perused the record and have given anxious consideration to the rival submissions made by the learned counsel.
40. In so far as submission of the learned counsel for Oswal that there was alleged incorrect statements made in the petition, by HPCL about the permissions that has been granted by the Authorities in favour of Oswal in ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 48 wp1973_11 violation of mandatory statutory provisions, and therefore, the petition is liable to be rejected on this ground alone, we are of the opinion that the Learned Counsel appearing for the HPCL is right in his submission that though various objections were raised by the HPCL regarding the security threat and strongly objecting to the permissions, if any, being granted to Oswal for development of its plot, none of the Authorities have considered any of the objections including Ministry of Environment and Municipal Corporation of the Greater Mumbai. Petitioners are right in is submission that the Municipal Corporation ought to have considered the security aspect and ought to have considered the Intelligence Bureau report in public interest while sanctioning the plan. In our opinion since the Corporation failed to consider the said Intelligence Bureau report and other security aspects while permitting change of user and sanctioning the plan in favour of Oswal, it was rightly contended by the HPCL that each of the permission was in violation of the mandatory statutory provisions and therefore, there was no incorrect statement made by HPCL . We are of the opinion that the statement was made in the petition by the HPCL on the basis of their understanding about the provisions of Development Control Regulations and other provisions of the Law having not been complied with by the Authorities while permitting change of user and sanctioning the plan in favour of Oswal and therefore, such statement cannot be construed as incorrect statement and more particularly in view of the decision taken by us in the later part of this judgment. We are, therefore, of the view that ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 49 wp1973_11 there is no substance in the submission made by the learned counsel for Oswal that this Court should not interfere with the petition on the basis of such alleged incorrect statement. In so far as submission of the learned counsel for Oswal that there was delay in filing the petition and that there was alleged incorrect statement in the petition, showing status of construction carried out by Oswal and also the fact that the petitioners had not served copy of the petition with the annnxures and also notice before making the application for ad interim relief and therefore this Court should not interfere in the petition and we should vacate ad interim order forthwith, it is necessary to point out that the present petition was filed by the petitioner on 16.9.2011. The matter was argued for ad interim order by the petitioners on 10.10.1011. The learned counsel Mr. D'Vitre appearing for HPCL fairly pointed out that though there was some delay on the part of the petitioner in making the application for ad interim relief, the same was due to procedural delay and was not deliberate. In so far as issuance of notice and service of the copy of the petition with annexures on Oswal is concerned, the learned counsel for HPCL fairly stated that the same was due to inadvertence on the part of the petitioner and their advocates. The learned counsel pointed out that admittedly the copy of the petition with annexures came to be served upon Oswal on 12.10.2011 by the petitioners with information about ad interim order passed by this Court. The learned counsel also pointed out that the aforesaid writ petition was thereafter heard on 18.10.2011 at great length. After hearing all ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 50 wp1973_11 parties including Oswal, this Court considered this submissions made by Oswal through their learned counsel requesting for vacating the order passed on 18.10.2011 and after hearing all parties continued ad interim order till the next date of hearing. The matter was thereafter adjourned on few occasions to facilitate all parties to complete pleadings and was thereafter finally heard by consent of both the parties. It is true that the petitioners and their advocates ought to have been more careful before making an application for ad interim relief in so far as the service of notice etc. and papers and proceedings, however, the same cannot be a ground for dismissal of the petition and vacating ad interim order. In our opinion, there is no reason to disbelieve the submissions made by the learned counsel appearing for the petitioner that the notice as well as papers were not served on Oswal due to inadvertent error on the part of the petitioner and their advocates. In so far as the unreported judgment in the case of Maganlal Kuberdas Kapadia Vs. Themis Chemicals Ltd., (supra) relied upon by the learned counsel for Oswal is concerned, the Division Bench of this Court had allowed the appeal and had vacated the interim order obtained by the original plaintiff therein. The relevant paragraphs of the said judgment to appreciate the facts of the matter reads thus :
"7. It was long after the institution of the suit that the present notice of motion was taken out, seeking among others, a relief in the form of an appointment of a receiver. Subsequently, yet ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 51 wp1973_11 another and more drastic relief was prayed for and obtained for the receiver to forth-with take forceful possession of the bungalow of the Defendant No.6 situate in Bombay.
8. The affidavit in support of the Notices of Motion was filed by the Legal and Administrative Officer of the Plaintiffs. The crucial averment made in the affidavit concerning the sixth Defendant-
Appellant herein was a very serious allegation. The sixth Defendant is absconding with a view to delay and defeat the Plaintiffs' claim. Yet another averment was "Defendant No.6 is out of India and has left the country for ever". It is on the basis of such serious and grave averments that the relief of an appointment of a Receiver, was sought and got.
9. The following are facts which are clearly established. The Sixth Defendant was a widower, aged ninety and ailing (a chronic ailment) at the relevant time. In his capacity as Director of the Plaintiff-Company, he wrote the Company on 9/5/1990, clearly intimating the Company about his departure for America for treatment. The address in America was furnished. He sought leave of absence (as Director of the Company) for a period of six months, as that was necessary to enable him to continue as Director. The request for leave was repeated on 16.7.1990 and 29.10.1990 for further periods. There is no dispute that these letters had been duly received by the Plaintiff- Company.
10. There could not be any justification for not referring to these material, crucially material facts in the affidavit in support of the application for interim relief. What is more, a highly insinuating averment was made against the sixth Defendant, that he was absconding. It is significant that the ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 52 wp1973_11 affidavit was filed by a Legal Executive, one who is in charge of the legal matters of the Company. That aggravates the vicious lapse on the part of the Deponent. The source of knowledge was a putative one, that of the 8th Defendant. Though a party to the suit, the 8th Defendant did not choose to swear to an affidavit. The learned trial Judge was made to believe that the service of summons to the 6th Defendant was impossible. On the materials available, that averment was base less one. It is rightly emphasised that soon after the Receiving order of 4.3.1991, the Plaintiff did not have any difficulty whatsoever to serve a copy of the order on the 6th Defendant, even when he was abroad."
41. From the perusal of the order passed by the Division Bench in the case of Maganlal Kapadia (supra) it is clear that though the plaintiffs were fully aware of the sickness of the defendant and who was out of India for the period of six months under due intimation to the plaintiffs, plaintiffs had suppressed those facts in the plaint and had alleged that the said defendant was absconding.
Considering the facts of that case, the Division Bench of this Court was of the view that there cannot be any justification for the plaintiffs in not referring to these material crucial facts in the affidavit in support of the application for interim relief and therefore the plaintiff therein had concealed material facts and on that ground the interim orders obtained by the plaintiffs therein came to be vacated.
We are of the opinion that the facts of this case are totally different. The Petitioner being a public body, has to enter into correspondence with various departments merely for filing proceedings and therefore, the delay, if any, in ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 53 wp1973_11 filing of the present petition cannot be considered as so gross warranting dismissal of the petition on that ground alone. We are, therefore, unable to accept the submission made by the learned counsel for Oswal that the petition should be dismissed and ad interim order passed by us should be vacated on such ground as aforesaid. We shall now deal with the other submissions made by the parties on merits.
42. In so far as submission of Oswal and Municipal Corporation that Corporation was not bound to consider security and health aspects before permitting change of user and sanction of plan is concerned, in our opinion reliance placed by HPCL on Regulations which gives discretionary power to the Municipal Commissioner to grant relaxation in certain cases is proper.
Regulation 64(b) of D.C. Regulation which reads thus :
"64. Discretionary Powers : (a)...........................
(b) In specific cases where a clearly demonstrable hardship is caused, the Commissioner may for reasons to be recorded in writing, by special permission permit any of the dimensions prescribed by these Regulation to be modified, except those relating to floor space indies unless otherwise permitted under these Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood."::: Downloaded on - 09/06/2013 18:25:06 :::
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43. This court in the case of Ikram Suleman Qureshi Versus Mumbai Building Repairs and Reconstruction Board and Others (supra) comprising of Dr. D.Y. Chandrachud and Anoop V. Mohta,JJ. has interpreted the Regulation 64(b) of the D.C. Regulations. The relevant paragraph of the said judgment rads thus :
"7......................The power to grant a relaxation under Regulation 64(b) is coupled with a duty that the Municipal Commissioner must apply his mind to all the circumstances which are considered to be relevant and germane by the subordinate legislation. Evidently, the Municipal Commissioner has not done so. The requirements of health, safety, fire safety, structural safety and public safety of the inhabitants of a building and the neighbourhood cannot be lightly brushed aside and must be taken into account by the Municipal Commissioner before he grants a relaxation."
44. In the case of Rameshwar Prasad and Others Versus Union of India and another (supra) the Apex Court has dealt with Wednesbury principle in Para 242 of the said judgment. The relevant portion of Para 242 reads thus :
".................. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) it is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reached it."::: Downloaded on - 09/06/2013 18:25:06 :::
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45. In the case of S.N. Rao and Others Vs. State of Maharashtra and Others,7 while dealing with section 46 of the M.R.T.P. Act observed thus :
" 8. There can be no doubt that if there be any other material or relevant fact, section 46 does not stand in the way of such material or fact being considered by the Municipal Corporation for the grant or refusal to grant sanction of any development plan. In the unreported decision of the High Court, the relevant fact that was taken into consideration was the draft revised development plan, even though the plan was not published. In the instant case, however, at the time the Municipal Commissioner rejected the plan submitted by the respondent No. 5, there was no draft revised development plan in existence. It was in contemplation. If there had been such a plan, the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan submitted by the respondent No.5. But, as there was no such draft revised plan as has been stated before this Court even by the Counsel for the Municipal Corporation, the Municipal Commissioner was not justified in merely relying upon a proposal for the preparation of a draft revised plan. An order rejecting a development plan submitted by the owner of the land should be supported by some concrete material. In the absence of any such material, it will be improper to reject the plan on the ground that there is a proposal for revision of the draft plan or that such a revision is under contemplation. We are, therefore, of the view that the ground for rejecting the plan submitted by the respondent No. 5 was not tenable and the appellate authority was justified in allowing the appeal."
46. This Court in the case of Buyer (India) Limited and Others Versus State 7 AIR 1988 SC 712 ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 56 wp1973_11 of Maharashtra and others8 have considered the powers of the Municipal Commissioner at length under section 45, 46 and 154 of the M.R.T.P. Act, 1966 at length. The relevant paragraphs of the said judgment are thus :
"3. Where human habitation is permitted in proximity of units dealing with hazardous chemicals and processes, there is an immediate two-fold danger; the first being the exposure to health hazards which would have its own long-term deadly effects and the second being the danger to life which is something irreplaceable. Both these aspects are crucial and are of equal concern and we do think that it is of fundamental necessity that the Planning Authorities, the Government and the Public bodies, who are entrusted with the task of deciding on the location of residential areas, must be alive to these very real and basic necessities at all times. These are the issues on which there can be no compromise, nor can there be any leniency.
4. In our considered view and in the present set-up, where the planning processes are left to the Government and to the public bodies, it is inherent that overriding considerations of Public health and danger to life must be issues to which top priority consideration is bestowed. Where there is a failure in this regard, the Court will have to step in, in exercise of the inherent powers vested in them and strike down or prohibit any action that offends these basic tenets. Nothing can be more fundamental than the issue of public safety and the right to life and where these are infringed upon, the Courts will have to act in the general interest of the citizens. Where a breach has occurred, either due to lethargy, negligence or for . other familiar reasons, the role of the Courts becomes all the more important. We are conscious of the fact that it is not the function of the Courts to direct and advise the Planning Authorities or to substitute their decisions by judicial decisions in the last resort. Unfortunately where it
8 1994 (4) Bom.C.R. 309 ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 57 wp1973_11 is demonstrated that public authorities have acted in a manner, or permitted activity that endangers public health and human life, the Courts, as of necessity, will have to take the exceptional step of remedying the mischief. No amount of technical pleas can justify a situation where a large number of people are permitted to reside in the close vicinity of industries dealing in hazardous chemicals and processes and under normal circumstances where such a situation has occurred, the Court would be justified in ordering demolition of the structures and removing the people residing in them in their own interest. One needs, however, to balance the equities in such instances and if it appears unduly harsh and unfair to order demolitions, a Court would still be justified in prohibiting any further new construction within a prescribed area.
5. There can be no absolute standards with regard to what constitutes a safe distance; as of necessity one is require to go by expert advice and past experience. The Court is also required to evaluate the possible danger in the event of an adverse happening and balance it, on the other hand, with the pressures that exist in areas where there is a shortage of accommodation. Taking all these considerations into account, a Court would prescribe what may judicially be categorised as a reasonably safe distance, within which it would be permissible to prohibit residential accommodation. In so doing, the issue as to whether the particular land comes within the residential zone or otherwise would be wholly irrelevant and for that matter the normal principles and rules that govern general situations would be wholly inapplicable. The situation in these cases is exceptional and it, therefore, requires consideration on special lines, even if the relevant Acts and rules do not make provision for that, as obviously they have not.
19. We are conscious of the fact that under the seemingly respectable term of "development", what is sought to be done is that the authorities and in particular the elected representatives of the people are persuaded to take a long ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 58 wp1973_11 jump over the well-defined principles of planning and at times on the basis of some special arguments and considerations, are prevailed upon to even modify existing plans, rules and regulations to absurd limits. Even where a general policy is laid down by the Government, all sorts of allowances are made for obvious reasons . turning the entire process of planning into utter chaos. One needs to only look at the many instances where green areas are turned into commercial complexes and the manner in which F.S.I. rules are bent to assist favourites. We shall presently illustrate that even in the present case it was seriously argued on the basis of a particular interpretation that was put to para 49 that even in industrial areas, regardless of the risks to life, residential complexes should be permitted. The essence of zoning is defeated through such a process. It is these issues which are not only one of utmost importance but which are vital for the very survival of the human race, that fall for decision in the present case. The accent on environmental considerations is another angle which has surfaced not in the recent past and if the authorities chose to act in breach of those fundamental rules then the Courts will have to ensure that they observe them. We make this observation though we are fully aware of the fact that issues such as land use, zoning, planning and the like are to be generally left within the domain of the experts and that the Courts would normally not interfere with their decisions or for that matter sit in judgment over those issues. This, in substance, is the well-defined position in law, but the very essence of judicial review requires that where the authorities or experts in whom public trust is reposed and from whom it is expected in matters of public welfare and public safety, go along to the extent of playing havoc with areas so fundamental as to threaten the human existence itself, then the Court will have to take cognizance of the overriding need to make an exception and to intervene.
The Division Bench of this Court in the said Judgment, revoked the building permissions granted by the Municipal Corporation.
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47. In our opinion even these abovereferred 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.
48. 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 ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 60 wp1973_11 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.
49. This Court in the case of TCI Industries Limited Vs. The Municipal Corporation of Greater Bombay and Ors. (supra), comprising of one of us (P.B. Majmudar,J.) was the Member has already considered this aspect after also considering section 46 of the Maharashtra Regional Town Planning Act. The relevant paragraphs of the said judgment reads thus :
"17. So far as Section 46 of the MRTP Act is concerned, in our view, it is not possible for us to give such a restricted meaning as canvassed by the learned counsel for the petitioner. Under Section 46 of the MRTP Act, the Planning Authority is required to examine the aspect about granting development permission in an appropriate manner and by ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 61 wp1973_11 considering the relevant aspects.While granting development permission, one of the things which the Planning Authority is required to consider is to the provisions of the draft or final plan sanctioned under the Act meaning thereby that if any provision in respect of anything in the draft or final plan published by means of notice or same is sanctioned under the Act, the Planning Authority cannot ignore the same and it has to be taken into consideration. It is impossible for us to accept the say of Mr. Kapadia that the Planning Authority cannot consider any other thing except giving due regard to the provisions of the draft or final plan as mentioned in Section 46 of the MRTP Act. In our view, Section 46 of the MRTP Act cannot be given such a restricted meaning and it cannot be said that under Section 46, the Planning Authority cannot consider any other aspect such as security etc. It is not possible for us to accept the submission of Mr. Kapadia that Section 46 of the MRTP Act is to be read in such a restrictive manner.
18. It is required to be noted that it is in fact the inherent duty of the planning authority to apply its mind before giving development permission and the planning authority is required to keep in mind the pros and cons of such development permission. For example, if there is a fire brigade station or refinery or any sensitive object is located at the place nearby the area for which development permission is sought, the planning authority cannot shut its eyes and is blindly give sanction only on the basis that, except what is provided in Section 46, they are not required to call for any other information. On the contrary, it is the duty of the planning authority to call for such information otherwise they will be failing in their duty and they are not required to sanction blindly by shutting their eyes to the relevant aspect of the matter. In view of the same, it is not possible for us to accept the submission of Mr. Kapadia that except what is provided under the MRTP Act and the D.C. Regulations, the planning authority is not empowered to call for any other information and to straightaway grant permission and is not required to call for any other information except the ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 62 wp1973_11 one provided under Section 46 of the MRTP Act or under the D.C. Regulations.
19. ............. Even as per the D.C. Regulation 16 (n), the Planning Authority may refuse to grant permission of using the land if the proposed development is likely to involve damage or to have a deleterious impact on or is against the aesthetics or environment or ecology and/or historical/architectural/aesthetical building and precincts or is not in the public interest. In our view, public interest cannot be read in line of what is mentioned under Regulation 16 regarding environment as public interest have wide connotation and if any particular development activity is found to be not in public interest, in a given case, the development authority can refuse such permission. The public interest, therefore, is to be read independently to the earlier part of the said Regulation i.e. ecology, architectural aspects etc. Reading the provisions of Section 46 of the MRTP Act, it cannot be said that the insistence of the planning authority of NOC of a particular department which, according to the Planning Authority is in public interest, such insistence cannot be said to be de hors the provisions of the Act and the Regulations.
21................................. In fact, when D.C. Regulations itself provide that in a given case permission cannot be granted if it is in public interest and when these Regulations are not under challenge the effect has to be to the provisions of the said Regulation."
50. In our opinion, therefore, since public authorities have failed to do their mandatory duty thereby overriding consideration of pubic health and danger to life, to which top priority consideration was bestowed in exercise of inherent powers vested in the court, this Court would have to exercise such power to strike down and or prohibit the action that violates the basic tenets.
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51. 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 ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 64 wp1973_11 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 ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 65 wp1973_11 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. The learned counsel placed reliance on some of the judgments on this issue which were considered by the Division Bench of this court in the case of TCI Industries Ltd. (supra). The learned counsel for HPCL relied upon those judgments which are referred by this Court and more particularly in paragraphs 34 to 37 which reads as :
"34. Mr. Khambata also relied upon the decision of the Division Bench of this Court in the case of Akbar Travel of India (Pvt.) Ltd. vs. Union of India and others delivered in Writ Petition (L) No. 656 of 2009. In paragraph 31, the Division Bench has observed thus:
31. We cannot transgress the limits of writ jurisdiction by sitting in judgment over the actions of Intelligence Agencies. These agencies are manned by experts, who are in the best position to judge the security interests.
Ultimately, sensitive and vital installations have to be safeguarded and protected from entry of persons who are ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 66 wp1973_11 considered to be undesirable and a security risk. Precisely, such are the inputs in the reports which have been received and if the Bureau has acted upon the same, then, we cannot sit in judgment over their decision. The writ Court does not possess any expertise in such cases. The Court cannot indulge in guess work and hold that the inputs do not endanger the security of the Airport nor public interest demand that the ground handling operations of the petitioner be prohibited. These are matters which are better left to the authorities in charge of security of the vital installations as they are in charge of laying down standards and norms for protecting and safeguarding them. They act in public interest and when no mala fides are alleged, their actions ought not be interfered.
Relying on the same, it is submitted by Mr. Khambata that once the competent authority i.e. Navy has found that the apprehension of security, this Court cannot sit in appeal over the judgment of the said authority.
35. Mr. Khambata also relied upon a decision of the Delhi High Court in the case of Federation of Indian Airlines and others vs. Union of India delivered in W.P (C) No. 8004 of 2010 on 4th March, 2011. In paragraph 93, the Division Bench has observed thus:
93. The contention of the learned counsel for the petitioners is that the security facet has been introduced as a subterfuge to curtail the commercial interests of the petitioners and gradually destroy their existence. Per contra, the submission of the learned Solicitor General is that strong steps have been taken to regulate, protect and oversee the security measures regard being had to the global phenomena and the security lapses that have taken place at the airports. The factum of security cannot be gone into by court of law and more so when specific aspects have been dwelled upon and delved into by the Bureau of Civil Aviation Security. The security of a country is paramount. It is in the interest of the nation.
There is no question of any kind of competition between ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 67 wp1973_11 the commercial interest and the security spectrum. The plea that in the name of security the commercial interest of the petitioners is infringed or abridged does not merit consideration and in any case this Court cannot sit in appeal over the same. The individual interests of the petitioners must yield to the larger public interest. Judged by these parameters and the authorities which we have referred to hereinabove that lay down the test under Article 14 and the role of court while dealing with policy decisions of the State, we do not remotely perceive the same to be arbitrary or unreasonable. It cannot be said that it is not based on well defined grounds. The very purpose of perceptible and does not suffer from the vice of unreasonableness. Therefore, we hold that the circular, as a policy decision, is not arbitrary and unreasonable to invite the frown of the said limb of Article 14 of the Constitution.
36. Mr. Khambata also relied upon the decision of a Division Bench of this Court in Writ Petition (L) No. 1105 of 2011 (Narangs International Hotels Pvt. Ltd. vs. Union of India and others), decided on 17th June, 2011 wherein this Court has observed in para 11 thus:
11. Having considered the rival contentions, we are of the opinion that this is a case where this Court cannot interfere with the impugned order which rejects the security clearance on the basis of the report of the Intelligence Bureau. We have perused the report of the Intelligence Bureau. We have no reason to disbelieve it.
We cannot sit in appeal over the said report. This case involves the security of India and more particularly the security of the Airports. Intelligence Bureau is an expert body. The petitioners have not alleged any mala fides. It is impossible to say that any extraneous reasons have persuaded the Intelligence Bureau to submit the report or that Respondent 1's action is mala fide.
37. Considering the case law cited by both the sides, we are of the opinion that whether the security point raised by Navy is merely a ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 68 wp1973_11 bogey or is a matter of substance is not a question which we can decide in a petition under Article 226 of the Constitution of India and this aspect should be squarely left to the defence authority. It is not for this court to pronounce the aforesaid aspect as it is completely in the realm of the defence department. It is also not for this Court to pronounce upon the decision of the Navy that the point of defence raised by them is justified or not. During the course of hearing Mr. Khambata has pointed out that in the recent past Mumbai was attacked by terrorists on 26th November, 2008 and from the said experience, there is nothing wrong if the Department has become wiser by taking most stringent security measures. It is submitted by Mr. Khambata that even if in the past in the nearby area high rise buildings were permitted to come, that cannot be taken into consideration as a basis for refusing permission to the petitioner's development especially when petitioner's property is just touching and adjoining the property of Navy wherein important armaments and missiles are kept there. Even VVIPs helicopters are landing at the said place. This Court cannot ignore all these facts and cannot come to the conclusion that the theory of security is nothing but an afterthought and that it should be ignored. If element of security is involved and if there is a clash between commercial interest and national interest, it is always the national interest which should prevail and simply because the petitioner may not be allowed to develop its property in a particular way, this Court cannot strike down the decision of the planning authority by which they have refused to grant permission to the petitioner. The instructions given by the State Government cannot be ignored by the planning authority, which we have incorporated above. The paramount interest is the security of the country and the same cannot be ignored by anyone including the planning authority, State Government or by any other authority. Considering the submissions made by the counsel appearing for the parties and considering the material on record, we are of the view that the security aspect which is pressed into service by Navy cannot be said to be a mere bogey or imaginary one, as appropriate material has been placed on record to buttress the stand of the Navy. As pointed out earlier, there are various provisions in various enactments which require that in a particular area certain high rise buildings or developmental activities are not permitted, especially in the vicinity of refinery or chemical industries which may affect health hazards to the persons staying nearby. In the instant case simply because construction activity is not permitted, it ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 69 wp1973_11 cannot be said that such action is violative of Article 300-A of the Constitution of India. Even at the cost of repetition, we may say that under D.C. Regulation 16, no development activity is permissible in certain eventuality which includes public interest also. The said Regulation is not challenged before us. Therefore, in our view, the Corporation has acted within its authority and in view of that it cannot be said that the petitioner is deprived of its property without any authority of law. Even the Supreme Court, as pointed out earlier, in the case of S.N. Rao (supra) has clearly held that there could be no doubt that if there be any other material or relevant fact, Section 46 of the MRTP Act does not stand in the way of such material or fact being considered by the Municipal Corporation for the grant or refusal to grant sanction of any development plan. In view of the same, the reliance placed on the Division Bench judgment of this Court in the case of Lok Holding (supra) has no application to the facts of the present case."
52. The next submission of the learned counsel appearing for Oswal that though HPCL have their own plot i.e. Calico Plot adjoining to the Oswal plot and which could be conveniently used by HPCL as a buffer zone and though such suggestion was given by the authorities and by the petitioner themselves, instead of using the said plot so as to keep safe distance between the Refinery plant of the petitioner and the plot of Oswal, the petitioner has decided to utilize their own plot for commercial purposes and to take away the proprietary rights of Oswal under the guise of security threats. We are of the opinion that there is no substance in any of these submissions made by the learned counsel appearing for Oswal. In our opinion, Mr. D'Vitre the learned counsel for HPCL is right in his submissions that when the Calico plot was acquired by HPCL there was no change of user permitted by the Municipal Corporation allowing use of plot in I-3 Zone ::: Downloaded on - 09/06/2013 18:25:06 ::: kvm 70 wp1973_11 for the purpose of residential cum commercial use. The learned counsel for the petitioner is right in his submission that the HPCL is entitled to use the said plot for ancillary purposes permitted under I-3 Zone and that it was acquired much earlier than the acquisition of plot by Oswal. There is another important aspect which the authorities have failed to consider is the health aspect that if Oswal is allowed to develop on its plot by constructing high rise building, the number of inhabitants using the said premises in such high rise building would be much more and may be exposed to volatile organic compounds which are released into atmosphere about 0.03 to 0.71 kg. per tonne of crude processed at the height by the funnel chimney of HPCL and the same is likely to cause various serious health hazards. None of the authorities have considered this crucial aspect while granting sanction in favour of Oswal. In our opinion, the orders passed by the authorities shows total non application of mind on these crucial aspects.
53. In so far as the issue raised by the learned counsel for Oswal that the petitioners directly or indirectly purports to take away valuable rights of Oswal to enjoy their proprietary rights with a right to develop would be in violation of Article 300A of the Constitution of India is concerned, we are of the opinion that this issue also has been considered by the Division Bench of this court in the matter of TCI Industries Ltd. (supra) and similar arguments advanced in the matter of TCI Industries have been negatived by this Court. In our view the ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 71 wp1973_11 security and health hazard issue, if ignored, would be very dangerous and would affect the public at large and therefore, if such public interest is compared with the development rights of Oswal which is in the nature or private interest, in our opinion, importance should be given to public interest in comparison to private interest.
54. Considering the law laid down by the various courts referred to as aforesaid, we are of the opinion that considering the past experience at Bhopal, terrorist attack in Mumbai, devastating fire in Indian Oil Limited Refinery at Jaipur and considering the report of Intelligence Bureau as well as affidavits of police department, submissions of Ministry of Home Affairs, we are of the view that the order of Municipal Commissioner approving the plan in favour of Oswal and permitting change of user is totally without application of mind, contrary to the statutory provisions as aforesaid and has been passed taking very casual approach by totally ignoring the security and health aspect, which therefore, requires interference by this Court under Article 226 of the Constitution of India.
55. In our view security as well as health aspects are crucial and are of equal concern and are of fundamental necessity that the Planning Authorities, the Government and the Public bodies, who are entrusted with the task of deciding on the location of residential areas, must be alive to these very real and basic ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 72 wp1973_11 necessities at all times. We are of the view that the court cannot permit any compromise or leniency on these issues by public body or even individuals. We are of the opinion that since authorities have totally failed and neglected to comply with their part of duties while granting various permissions in favour of Oswal and have acted in the manner which endanger public health and human life, it becomes duty of the court to intervene in this type of situation and direct the authorities to comply with their duties and obligations in proper manner and in accordance with law. We are of the opinion that NOC granted by Government of Maharashtra on 7th June, 2006 in favour of Oswal is also without application of mind and without considering any security aspect.
56. In our view, the security and health aspect in respect of public at large is a part of planning which the authorities ought to have considered as a mandatory duty before sanctioning any plan or permitting development or before permitting change of user. In our opinion, the authorities have failed to comply with their duty and therefore, impugned orders passed by the authorities sanctioning change of user as well as sanctioning the plan for development purpose, in favour of Oswal are required to be set aside.
57. We are of the view that order dated 21st October, 2008 issued by the Government of India, Ministry of Environment and Forest in favour of Oswal is also without considering any security and health aspect and without application ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 73 wp1973_11 of mind and passed mechanically and is thus liable to be set aside. Similarly, change of user permitted by the Municipal Corporation in favour of Oswal on 1 st September, 2009 permitted to use its land for residential or commercial use is also without considering security and health aspect and without considering objections raised by HPCL.
58 Though in prayer A-1, the Petitioners have prayed for striking down D.C. Regulation 57 (4) (c) and D.C. Regulation 29 (5) as also the Table 10 C (5) as being ultra vires, unreasonable, arbitrary and capricious, no arguments in that behalf are advanced by the Petitioners challenging the vires of the aforesaid provisions and therefore we have not dealt with the said prayer in this Judgment.
59. In our view each of the order passed by these authorities which are annexed at Exs. "Q" to "Z" of the Writ Petition are totally vulnerable and are liable to set aside.
60. In these circumstances, we pass the following Order :-
a) Order passed by the Authorities which are at Exs.
"Q" to "Z" of the Writ Petition are quashed and set aside.
::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 74 wp1973_11 b) The Municipal Commissioner is directed to re-
consider 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, 1966 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 re-
consider their decision while considering the permission applied for by Oswal after considering the views expressed by us and after hearing all the concern parties including HPCL and should pass a fresh order within a period of eight weeks in accordance with law.
::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 75 wp1973_11 d) Rule is made absolute in the above terms. e) No order as to cost. (R.D. DHANUKA,J.) (P.B.MAJMUDAR,J.) Per P.B. Majmudar, J.
1. I have gone through the well reasoned judgment prepared by my learned brother. I totally agree with the ultimate decision taken by my learned brother.
So far as the issue involved in the matter is concerned, it pertains to the security, environment and health aspects. At the time when respondent No. 20 purchased the land, it was in industrial zone. Respondent No. 20 was very well aware that no commercial or residential activity is permitted in the area. Subsequently, for the purpose of commercial benefits, respondent No. 20 applied for converting the same from I-3 Zone to commercial-cum-residential zone.
2. At this stage, reference is required to be made to the provisions of Section 37 of the Maharashtra Regional and Town Planning Act, 1966. The relevant provisions of the said Section are reproduced hereunder.
"37. Modification of final development plan.- (1) Where a modification of any part of or any proposal made in a final ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 76 wp1973_11 Development plan is of such a nature that it will not change the character of such Development plan, the Planning Authority may or when so directed by the State Government shall, within ninety days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction.
1A. If the Planning Authority fails to issue the notice as directed by the State Government, the State government shall issue the notice, and thereupon, the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority.
1AA. (a) Notwithstanding anything contained in sub-sections (1), (1A) and (2), where the State Government is satisfied that in the public interest it is necessary to carry out urgently a modification of any part of, or any proposal made in, a final Development plan of such a nature that it will not change the character of such Development Plan, the State Government may, on its own, publish a notice in the Official Gazette, and in such other manner as may be determined by it, inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice, and shall also serve notice on all persons affected by the proposed modification and the Planning Authority.
(b) The State Government shall, after the specified period, forward a copy of all such objections and suggestions to the Planning Authority for its consideration. The Planning Authority shall, thereupon, submit its say to the Government within a period of one month from the receipt of the copies of such objections and suggestions from the government.
(c ) The State Government shall, after giving hearing to the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the Official Gazette, ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 77 wp1973_11 publish the approved modification with or without changes, and subject to such conditions as it may deem fit, or may decide not to carry out such modification. On the publication of the modification in the Official Gazette, the final Development Plan shall be deemed to have been modified accordingly."
3. The Planning Authority under Regulation 57 (4) of the Development Control Regulations for Greater Bombay (hereinafter "the D.C. Regulation") is permitted to change of user from one purpose to another. D.C. Regulation 57 provides about Special Industrial Zone (I-3 Zone). General conditions are prescribed in the said D.C. Regulation requiring the uses permitted in the I-3 Zone. Under Regulation 57 (4) (c ) any open land or lands or industrial lands in the Special Industrial Zone (I-3 Zone) (including industrial estate), excluding lands of cotton textile mills, may be permitted to be utilised for any of the permissible users in Residential Zone (R-1 Zone) or the Residential Zone with shop line (R-2 Zone) with the previous approval of the Commissioner. The Commissioner, therefore, is entitled to give such permission under Regulation 57 (4) (c ), subject to certain requirements prescribed under the said Regulation.
4. It is required to be noted that in the instant case, after due application of mind, the area in question was placed under I-3 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 ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 78 wp1973_11 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 permitting the developer to put high rise buildings, the Commissioner was ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 79 wp1973_11 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 building 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 ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 80 wp1973_11 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.
5. It is also required to be noted that the Corporation has also sought clarification from the Urban Development Department but the concerned Department of the State has also not applied its mind properly. Simply because at the relevant time the petitioners might not have taken objections during discussions is not enough as the Commissioner was required to apply his mind objectively and independently as also the pros and cons of the matter. It is unfortunate that appropriate care is not taken in so far as Government Companies or Public Sector undertakings are concerned as compared to other private sector undertakings. In my view, therefore, the petition is not required to be rejected even on the ground of delay and laches as appropriate averments as regards delay have been made in the petition. In our earlier order, we had asked the learned counsel for the Petitioners to find out as to why the concerned officers were not vigilant at that time. During the course of hearing, Mr. D'vitre, the learned senior counsel appearing for the petitioners, informed the Court that it has been decided to adopt appropriate proceedings against the erring officers who ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 81 wp1973_11 had not taken appropriate care to protect the interest of the refinery in question.
Considering the same, the matter is required to be sent back to the authority to reconsider this aspect. The concerned authority may also reconsider the I.B. report as well as the objections of the Police Department and fire safety aspects and after considering the same, fresh decision is required to be taken. It is unfortunate that in such an area before granting permission for construction of commercial-cum-residential activities, relevant aspects have not been taken into consideration. Today, unfortunately for the purpose of commercial activity and for the purpose of gaining profit, one may tempt to carry out construction even in the graveyard or in the crematorium. But surely, the authority should not close its eyes before granting such permission in a particular area. As stated above, the Corporation is also required to consider relevant aspects before granting development permission while taking into consideration the security threats, fire, health aspects, etc. In the instant case, the I.B. Report is one of the most important documents which is also required to be taken into consideration. The life of a citizen should not be allowed to be made miserable by virtue of bad planning. At the cost of repetition, I may say that it is not in dispute that the refinery in question is considered to be a hazardous industry. The authorities are required to apply its mind in its proper perspective and take a fresh decision, after considering the necessary documents including the I.B. Report as well as environmental aspects. The provisions of the Town Planning Act may not be ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 82 wp1973_11 nullified while granting permission under the D.C. Regulation for conversion and discretion has to be exercised by the Commissioner in a judicious manner in this behalf.
6. In view of what is stated above, I agree with the view taken by my learned brother as ultimately the Commissioner is required to take into consideration all the aforesaid aspects.
ig (P.B. MAJMUDAR, J.)
At this stage, Mr. Chinoy, the learned senior counsel appearing for
respondent No. 20 requested that the order may be kept in abeyance for
a period of four weeks. We have only quashed the permissions as per the
reasoning given in the judgment. In view of the same, we do not find any
substance in entertaining the request for keeping this order in abeyance.
In a given case, if any direction for demolition is given, the Court may
consider the request for granting stay of such an order. Considering the
nature of the order, in our view, request for keeping this order in abeyance for a period of four weeks cannot be considered. In case, the Hon'ble Supreme Court stays our order, naturally the order of cancellation of ::: Downloaded on - 09/06/2013 18:25:07 ::: kvm 83 wp1973_11 various permissions will again revive. In view of the same, the request made before us, in our view, is not reasonable and, therefore, the same cannot be granted.
(P.B. MAJMUDAR, J.)
ig (R.D. DHANUKA, J.)
::: Downloaded on - 09/06/2013 18:25:07 :::