Document Fragment View

Matching Fragments

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

9. The principal submission on behalf of the appellant Oswal was that they had been granted the change of user (conversion from industrial zone to residential/commercial zone) by the municipal corporation, under its permission dated 1.9.2009, on this parcel of land (exhibited at Annexure P-23 to the Writ Petition). Since, this permission was as per DCR 57(4)(c), which allows such a change of user with the previous approval of the Municipal Commissioner, it should not be interfered with. This change of user was defended by the Municipal Corporation also through the affidavit of the Assistant Engineer, Development Plan, ‘M’ Ward, dated 19.11.2011. It was stated in paragraphs 4 (c) and (d) of this affidavit that various complaints had been received from HPCL/BPCL concerning the issue of security, and a reference was therefore made to the Urban Development Department of the State of Maharashtra, vide letters dated 26.10.2006 and 21.4.2007. However, no clarification as sought was received from the Government, and hence in view of the order of the Municipal Commissioner dated 24.8.2009, the conversion from Special Industrial Zone (I-3) to Commercial Zone (C-1) was granted. That was on an undertaking from Oswal, that if the Government issues an adverse clarification, that will have to be complied with, and also on an indemnity, as against any legal consequences arising out of any action initiated by HPCL.

“ii) With specific reference to the construction of within building at the site of demolished factory of M/s Oswal Agro Mills Ltd., Anik Village Chembur near HPCL refinery, they pose a security hazard to the above vital installation in HPCL refinery. Accordingly, MHA has already issued an advisory in this regard to the State Government of Maharashtra vide letter No VI 23014/448/2011-VS dated 16.1.2012 (copy enclosed). As regard the possibility of such construction being used by security agencies, the matter, needs to be examined in depth in consultation with all concerned.” Lastly, they relied upon the affidavit of the Assistant Commissioner of Police of Trombay filed in the Writ Petition. In paragraph 3, he has specifically stated that any upper floors in the complex on Oswal land, if permitted, may provide an ideal launching pad for any external object to be directed or targeted at the said refinery storage tanks which may contain highly inflammable substances like LPG, Naphtha and Crude Oil.

(ii) The affidavit of Dr. Seema Garg has emphasized all these aspects which have been quoted in the order prepared by our Learned Brother, but he has not considered the above explanation of HPCL in that behalf. It has been stated in paragraph 22 of his judgment that the High Court has allowed the Writ Petition by relying upon the report of Intelligence Bureau and the affidavit of the Assistant Commissioner of Police, but according to him they are not based on any scientific study or expert analysis. In our view, the statement in the affidavit of the Assistant Commissioner of Police as well as the extracts from the report of the Intelligence Bureau are quite cogent. The view of the Police Commissioner is reinforced by the Central Home Ministry on the background of the terrorist attack in the city on 26.11.2008. It has also been mentioned in paragraph 23 of his judgment that some other buildings are coming up at a distance of about 800 meters from the refinery. As stated above that all throughout these developments have been objected to by HPCL. Therefore, HPCL cannot be faulted for such constructions which are permitted by the Municipal Corporation. Besides, merely because such constructions have been permitted so far, that does not justify any more high-rise constructions coming up in the vicinity. We are aware of the serious accidents which took place at the IOCL refinery at Jaipur, and also at the Union Carbide Factory, Bhopal. Any such accident would cause serious loss of life and property, and would be hazardous to the occupants of these constructions.