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Thursday, December 12, 2013

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

Municipal  Corporation of Greater Mumbai (for short, ‘the Corporation’)  - Regulation 16(a), (b),  (n)  read  with  Regulation  64(b)  read  with section 46 of the M.R.T.P. Act. - Maharashtra  Pollution Control Board (MPCB) for grant of environmental clearance for change of use of land purchased in industrial zone for purpose of raising commercial and residential buildings - Corporation granted permission despite of objections - D.B. High court set aside the orders of Mumbai corporation and also directed to consider afresh taking in to consideration of security threats etc.  - Apex court dismissed the appeal and confirmed the high court orders  = 


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

As stated above, in our view the security threat  is
clearly placed on record, as also the possible danger to the health  of  the
occupants of the buildings already constructed  and  to  be  constructed  as
well.  
The order of the High Court  has  set  aside  all  the  approvals  in
favour of Oswal.  
It has  taken  care  of  some  of  these  issues  when  it
directed the Municipal Commissioner to reconsider the  application  made  by
Oswal after  considering  
(a)  the  objections  of  the  Police  Department,
Ministry of Petroleum,  Ministry  of  Environment  and  Intelligence  Bureau
report, and also the Security Control Regulations framed  by  the  State  of
Maharashtra.  
(b) The High  Court  has  also  directed  that  the  Municipal
Commissioner will pass  the  order  after  hearing  the  parties  and  after
considering the views expressed by the High Court  and  in  accordance  with
law.    
In  addition,  we  further  direct  the  Municipal  Commissioner  to
consider the issue of possible danger to the health of the occupants of  the
buildings  already  constructed,  and  those  to  be  constructed   by   the
appellants, as desired by Singhvi, J..  He has referred to the statement  in
the affidavit of Vice-President of the appellant that  HPCL  is  seeking  to
make the property of Oswal sterile and  unbuildable  without  acquiring  the
same.  
The  parties  can  certainly  utilise  the  time  now  available  for
appropriate and fruitful negotiations in this behalf.   And,  in  any  case,
Oswal can certainly use the land for an  agro-industry  or  any  permissible
industry.
18.         This being the position, we  cannot  find  any  fault  with  the
impugned judgment and order of the High  Court,  and  it  need  not  be  set
aside.  
On  the  contrary,  these  two  appeals  deserve  to  be  dismissed.
Accordingly, we pass an order dismissing  these  two  appeals.  The  parties
will bear their own costs.
                        

IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.10933  OF 2013
                  (Arising out of SLP(C) No.14202 of 2012)


Oswal Agro Mills Ltd.                              ... Appellant
                                   versus
Hindustan Petroleum Corporation Ltd. and others          ... Respondents


                                    With

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



                               J U D G M E N T

G.S. SINGHVI, J.

1.    Leave granted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                       (reproduced from the SLP paper book.)

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

|Location  |Distance from the|Name of             |Population |
|from the  |Refinery         |building/habitation |           |
|Refinery  |                 |                    |           |
|South     |0 metres; i.e.,  |Gavanapada Village  |7000       |
|          |almost adjoining |                    |           |
|          |the refinery     |                    |           |
|East      |a) 18.53 metres  |Slums of Paryag     |5000       |
|          |                 |Nagar and Prakash   |           |
|          |                 |Nagar               |           |
|          |b) 125 metres    |On a raised ground- |Almost     |
|          |                 |residential high    |complete   |
|          |                 |rise tower of 14    |and ready  |
|          |                 |storey on the Metal |for        |
|          |                 |Box plot            |occupation |
|North     |a) 30-130 metres |More than 50 multi  |6000       |
|          |                 |storied constructed |housing    |
|          |                 |under the SRA scheme|units and  |
|          |                 |                    |hundreds of|
|          |                 |                    |shops      |
|          |b) 50 metres     |Vishnunagar Slum    |10,000     |
|          |c) 400 metres    |Bharat Nagar Slum   |20,000     |
|West      |Across the road  |Shops and hutments  |200        |
|          |and opposite the |                    |           |
|          |main gate of the |                    |           |
|          |refinery         |                    |           |


17.   The Division Bench of the High Court allowed  the  writ  petition  and
quashed the permission accorded by the  Corporation  and  other  authorities
for conversion of the appellant’s land from Special  Industrial  Zone  (I-3)
to  Local  Commercial  Zone  (C-1)  under  Regulation  No.  57(4)(c)  of  DC
Regulations, approval granted for amalgamation / sub-division  of  the  plot
and  sanction  accorded  to  amended  building  plans  for  construction  of
residential buildings. The High Court also quashed NOC issued  by  MPCB  and
environmental  clearance  granted  by  MoEF  and  directed   the   Municipal
Commissioner to re-consider the applications made  by  respondent  No.1  for
change of land use and for sanction of  plan  and  decide  the  same  afresh
after considering the objections  raised  by  various  Departments  and  the
provisions of Security Control Regulations.

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

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

     “In our opinion even these above-referred provisions clearly  provides
     that even if the relaxation in respect of the dimensions  in  case  of
     hardship, can be granted  by  the  Municipal  Commissioner,  Municipal
     Commissioner is prohibited from  granting  such  relaxations  if  such
     relaxation affects health, safety, fire safety, structural safety  and
     public  safety  of  the  inhabitants   of   the   building   and   the
     neighbourhood. In our view, the Learned Counsel for HPCL is  right  in
     his  submission  that   this   prohibition   against   the   Municipal
     Commissioner in relaxing certain conditions even in case of  hardship,
     if it affects the public safety, health etc. should  be  read  in  the
     powers of Commissioner under Regulation 16(a) (b) and (n). We  are  of
     the opinion that the issue of security and health aspect, which is for
     members of the public at large and is in pubic interest and therefore,
     by not considering the security  and  health  aspect  or  refusing  to
     consider such aspects while sanctioning the plan or  while  permitting
     change of user, is totally illegal and contrary to  Regulations  16(a)
     (b) (n) read with section 64(b) of the D.C. Regulations.


     From  the  perusal  of  the  aforesaid  judgments  and  applying   the
     principles thereof to the facts of this case, we are  of  the  opinion
     that the learned counsel for Oswal as well  as  Municipal  Corporation
     are not right in their submission that the security aspect should  not
     have been considered  at  all  by  the  Municipal  Commissioner  while
     sanctioning the plan for development or  while  permitting  change  of
     user under any of the provisions of the  D.C.  Regulations  or  Mumbai
     Municipal Corporation Act or Maharashtra Regional Town  Planning  Act.
     We are of the opinion that it is not only the power but also  duty  of
     the Municipal Commissioner to consider the security aspect  in  public
     interest before granting permission to development any land as well as
     permitting change of  user  from  one  zone  to  another  zone.  Under
     Regulation 16(a), (b),  (n)  read  with  Regulation  64(b)  read  with
     section 46 of the M.R.T.P. Act. We are, therefore,  unable  to  accept
     the submission of the learned counsel for Oswal as well as B.M.C. that
     there was no enabling provisions under the present D.C. Regulations or
     any other provisions to consider security  and  health  aspect  before
     sanctioning the plan or  before  permitting  change  of  user  by  the
     Municipal Commissioner.”



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

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




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

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




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

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

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

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

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

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

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

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

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

































                                                                  REPORTABLE

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


Oswal Agro Mills Ltd.                              …   Appellants

                                    Versus


Hindustan Petroleum Corporation Ltd. & Ors.        …   Respondents

                                    With

                        CIVIL APPEAL NO.10934 OF 2013
          (@ out of  SPECIAL LEAVE PETITION (CIVIL) NO.30858/2012)


Municipal Corporation of Greater Mumbai      …   Appellants

                                    Versus

Hindustan Petroleum Corporation Ltd. & Ors.        …   Respondents


                          J  U  D  G  E  M  E  N  T


H.L. Gokhale J.

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

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

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

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

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

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

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

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

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

c)    Ministry of Environment is also directed to reconsider their  decision
while considering the permission applied for by Oswal after considering  the
views expressed by us and after hearing all the concerned parties  including
HPCL and should pass a fresh  order  within  a  period  of  eight  weeks  in
accordance with law.”


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


                               “INDEMNITY BOND
To,

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

Hon’ble Sir,

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

Ref:  File No. CHE/683/DPES

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

Dated this 7th day of January, 2011

Yours faithfully
Oswal Agro Mills Ltd.”

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

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

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

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

                                  ………………….…………………J.
                                  [ H.L. Gokhale ]


                                    ……………….………………………J.
                                  [ Ranjana Prakash Desai ]


New Delhi
Dated: December 10, 2013
-----------------------
45


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