Supreme Court of India
OSWAL AGRO MILLS LTD.versusHINDUSTAN PETROLEUM CORPORATION LTD. AND OTHERS
- Citation
- 2013 INSC 816
- Decided
- 10 December 2013
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
The Municipal Commissioner cannot exercise the power under OCR 57(4)(c) in isolation and must consider safety, security and health objections; the High Court’s quashing of the approvals was proper and the appeals are dismissed.
Summary
Oswal Agro Mills Ltd. obtained permission from the Municipal Corporation of Greater Mumbai to convert a plot in a Special Industrial Zone to a residential‑commercial complex adjacent to Hindustan Petroleum Corporation Ltd.'s (HPCL) refinery. HPCL objected, citing safety, security and health risks, and the Bombay High Court quashed the change‑of‑user sanction, directing the Municipal Commissioner to reconsider the objections raised by various agencies. The appellants argued that the change‑of‑user was valid under OCR 57(4)(c) which contains a non‑obstante clause, and that the Municipal Corporation could not be bound by the objections. The Supreme Court held that the Municipal Commissioner must give paramount importance to safety, health and security and cannot rely solely on the non‑obstante provision, and that the High Court’s order was proper. Consequently, the Court dismissed the appeals and remitted the matter to the High Court to rehear the writ petition after considering the security and health issues. The decision emphasizes that public interest cannot be sacrificed for commercial considerations in town‑planning matters.
Issues considered
- The validity of granting change of land use from industrial to residential/commercial under OCR 57(4)(c) notwithstanding objections.
- Whether objections raised by HPCL, police, Ministry of Petroleum, Ministry of Environment, Intelligence Bureau and Security Control Regulations under Section 37(1AA) of the Maharashtra Regional and Town Planning Act must be considered.
- The effect of the non‑obstante clause in OCR 57(4)(c) on the Municipal Commissioner’s duty to consider safety, health and security.
- The propriety of the High Court’s quashing of the change‑of‑user approvals.
- The maintainability of the Municipal Corporation’s appeal in view of the indemnity bond.
Legislation cited
- Development Control Regulations (OCR) for Greater Mumbai, 1991s. 16, s. 57(4)(c), s. 64
- Environment (Protection) Act, 1986
- Maharashtra Regional and Town Planning Act, 1966s. 37(1AA), s. 46
Subjects
Town planningChange of land useIndustrial zoneResidential/commercial conversionSafetySecurityPublic healthNon‑obstante clauseDevelopment Control RegulationsMaharashtra Regional and Town Planning ActEnvironmental clearanceHigh‑rise constructionRefineryPublic interest
Judgment
(2013] 17 S.C.R. 447
OSWAL AGRO MILLS LTD. A
v.
HINDUSTAN PETROLEUM CORPORATION LTD. AND
OTHERS
(Civil Appeal No.10933 of 2013)
DECEMBER 10, 2013 B
[G.S. SINGHVI, H.L. GOKHALE AND
RANJANA PRAKASH DESAI, JJ.]
Town Planning - Maharashtra Regional and Town C
Planning Act, 1966 - s. 37(1 AA) - Development Control
Regulations (OCR) for Greater Mumbai, 1991 - OCR
57(4)(c), 16 and 64 - Change of land user- Conversion from
industrial zone to residential/commercial zone - Proposed
construction of residential-cum-commercial complex of D
appellant in the vicinity of the Refinery run by respondent no. 1
- Objections to the construction, from point of view of the
safety and security of the refinery, and of the would-be
occupants of the housing complex, as well as their health -
High Court allowed writ petition filed by respondent no.1 and E
quashed sanction accorded by the competent authority of the
Municipal Corporation of Greater Mumbai for change of user
and construction of residential and commercial complex and
directed the Municipal Commissioner to reconsider the
application of appellant keeping in view the objections raised
by the Police Department, Ministry of Petroleum, Ministry of F
Environment and Intelligence Bureau and the Security Control
Regulations - Propriety - Held (per majority): Proper -
Respondent no. 1 could not be faulted for constructions
permitted by respondent no.2-Municipal Corporation - Merely
because some constructions were permitted at some distance G
from the refinery of respondent no. 1, does not justify further
high-rise constructions in the vicinity - Two wrongs do not
make one right - Respondent no. 1 lodged their objections,
447 H
448 SUPREME COURT REPORTS [2013] 17 S.C.R.
A and Municipal Authorities were required to consider the same
but they did not - Public interest cannot be sacrificed at the
altar of commercial interests - Security threat clearly placed
on record, as also the possible danger to the health of the
occupants of the buildings already constructed and to be
B constructed as well - No fault found with the judgment of High
Court.
Dispute arose with respect to the proposed
construction of the residential-cum-commercial complex
of the appellant in the vicinity of the Refinery run by the
C first respondent Hindustan Petroleum Corporation Ltd.
('HPCL'). The area in question was earlier designated as
a Special Industrial Zone, and commercial-cum-residential
activities were not permitted therein. However,
subsequently, the appellant had been permitted the
D change of user (conversion from industrial zone to
residential/commercial zone) by the Municipal
Corporation of Greater Mumbai.
The High Court allowed the writ petition filed by
E 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 change of user and construction of
residential and commercial complex and directed the
F Municipal Commissioner to reconsider the application
made by 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
G Regional and Town Planning Act, 1966. Hence the
present appeal.
The principal submission on behalf of the appellant
was that they had been granted the change of user
H (conversion from industrial zone to residential/
OSWAL AGRO MILLS LTD. v. HINDUSTAN 449
PETROLEUM CORPORATION LTD.
commercial zone) by the Municipal Corporation of Gredter A
Mumbai, under its permission, and since this permission
was as per OCR 57(4)(c) of the Development Control
Regulations (OCR) for Greater Mumbai, 1991 framed
under the Maharashtra Regional and Town Planning Act,
1966 which allowed such a change of user with the B
previous approval of the Municipal Commissioner, it
should not be interfered with. The change of user was
defended by the Municipal Corporation also.
The first respondent, on the other hand, raised two-
fold contentions viz. that from the point of view of the C
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 was their submission that such a construction would
be contrary to law, apart from being potentially D
dangerous and, therefore, undesirable on both these
counts.
Dismissing the appeals per majority, the Court
E
HELD: Per Gokhale J. (for himself and Desai;· J. )
[Majority opinion]
1. The affidavit of Dr. Seema Garg, Vice President of
the appellant points out that on the southern side of the
refinery, the Gavanapada Village is located with a F
population of about 7000 people. However, this is an old
village establishment and onil 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, G
and on the western side, the.re are some shops and
hutments. HPCL ·cannot be held responsible for these
structures. In any case, 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 H
450 SUPREME COURT REPORTS [2013) 17 S.C.R.
A 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. However, because of the resistance of the fjrst
B respondent, the upper floors of these buildings are to be
allotted to the Police department. [Para 13] [488-G-H; 489-
A-B]
1.2. The statement in the affidavit of the Assistant
Commissioner of Police as well as the extracts from the
c 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. Some other buildings are
coming up at a distance of about 800 meters from the
D refinery. 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
E justify any more high-rise constructions coming up in the
vicinity. [Para 13] [489-E-G]
2. When the refinery of the first respondent came up
in the year 1952, and the other vital installations of
F 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
G 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
H
0$WAL AGRO MILLS LTD. v. HINDUSTAN 451
PETROLEUM CORPORATION LTD.
dereliction of their responsibilities. Merely because some A
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.
[Para 14] [490-A-D] B
3. It is rather surprising that the Municipal
Corporation has also chosen to file an appeal against the
order of the High Court. This is on the background that
appellant had given an Indemnity Bond to the Municipal
Commissioner dated 7.1.2011. In view of this Indemnity C
Bond, the Municipal Corporation had no reason to file any
appeal against the order of the High Court, and the same
is disapproved. [Para 15] [490-E-F; 491-F]
4. OCR 57 (4) (c) of the Development Control D
Regulations (OCR) for Greater Mumbai, 1991 framed
under the Maharashtra Regional and Town Planning Act,
1966 was relied upon by the appellant and the Municipal
Corporation in defence of the change of user. This OCR
contains a non-obstante clause, but all that it states is E
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
F
under OCR 57(4)(c) could not be exercised as a
standalone power, when specific objections relatable to
OCR 16 had been raised. OCR No.16 falls in Part II of the
DC Regulation of 1991 containing 'General planning
requirements, Land uses and manner of development'.
Even OCR No.64 which gives the 'Discretionary powers' G
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
H
452 SUPREME COURT REPORTS [2013] 17 S.C.R.
A coupled with the duty to give paramount importance to
safety. These provisions c,ast an obligation on the
rviunicipal Commissioner to take into consideration the
objections in this behalf. Maharashtra Regional and Town
Planning Act, 1966 being an Act to provide for planned
B development, the provisions of.the DCRs will have to be
read purposively and harmoniously, and not
disjunctively. 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
C and not beyond the same. HPCL had lodged their
objections, and the Municipal authorities were required
to consi~er 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
D 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
E submissions of the Municipal Corporation and appellant-
Oswal are clearly contrary to the regulations, and are
therefore rejected. Oswal and the Municipal Corporation
had contended that the Writ Petition was belated.
However, the 1.0.D was issued to Oswal on 11.11.2010,
F 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 co111ld not therefore be said
to have been filed belatedly. [Para 16] [493-D-H; 494-A-E]
G 5. 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 the issues when it directed the Municipal
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN 453
PETROLEUM CORPORATION LTD.
Commissioner to reconsider the application made by A
Oswal after considering 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. The High Court. has also directed that the B
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,
the Municipal Commissioner is directed to consider the
issue of possible danger to the health of the occupants c
of the buildings already constructed, and those to be
constructed by the appellants. It is stated in the affidavit
of Vice-President of the appellant that HPCL is seeking
to make the property of Oswal sterile and unbuildable
, ~ithout acquiring the same. The parties can certainly D
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. [Para 17] [494-G, H, A-D]
Per Singhvi, J. (Minority Opinion) E
1.1. 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 F
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 G
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
H
454 SUPREME COURT REPORTS [2013] 17 S.C.R.
A the colony of the officers and employees of respondent
( No.1 which is at a distance of SO meters from BPCL
• refinery. The photographs further show that Mono Rail is
being constructed at a distance of 18 meters from BPCL
• refinery. [Para 22) [478-F-H; 479-A]
B
1.2. 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
C 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
D 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
E 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. R_espondent No.1 did not get any
scientific study conducted by experts to find out the
F effect of gases emanating from the refineries and other
indus'.rial 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
G 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
H Police on the issues of security threat and public health
OSWAL AGRO MILLS LTD. v. HINDUSTAN 455
PETROLEUM CORPORATION LTD.
could not have been relied upon for recording a finding A
· 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.
[Para 23] [479-B-H]
B
2. 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 C
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., D
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-a-
vis others, who have already constructed the buildings. E
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 F
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 G
public. Therefore, this objection cannot be pressed into
service for restraining the appellant from constructing
the buildings. [Para 24] [480-A-F]
3. The impugned order is set aside and the matter is
remitted to the High Court for deciding the writ petition H
456 SUPREME COURT REPORTS [2013) 17 S.C.R.
A 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.
B [Para 25) [480-F, G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10933 of 2013.
From the Judgment and Order dated 12.04.2012 of the
C High Court of Bombay in WP No. 1973 of 2011 .•
WITH
C.A. No. 10934 of 2013
D Dushyant A. Dave, Rakesh Tiku, Shekhar Naphade, Pallav
. Shishodia, H.N. Salve, Rakesh Dwivedi, Nimay Dave, Saleem
Hallan, Suh ail Malik,. Sanjay Kumar, Manjusha Wadhwa,
Bhargava V. Desai.. Shreyas Mehrotra, J. J. Xavier, Sanjay
Kapur, Ashmi Mohan, Devan Khanna, Shubhra Kapur, Sanjay
E V. Kharde for the Appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
F 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. (HPCI,.) and quashed the
sanction accorded by the competent authority of the Municipal
G 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
H by Oswal Agro Mills Ltd. (hereinafter described as "the
OSWAL AGRO MILLS LTD. v. HINDUSTAN 457
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
appellant") keeping in view the objections raised by the Police A
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'). B
· 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 lndustriql Zone (1-3.Zone). In 2005, C
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.
D
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 E
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 tB the
Maharashtra Pollution Control Board (MPCB) for grant of
F
environmental clearance. Thereupon, MPCB issued notice
dated 19.6.2006 and invited objections against the proposed
grant of environmental ch;iarance 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 G
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 H
458 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B 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
c 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
D 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
E 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
HPC1- officers was situated on North-East side of the
F 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,
G respondent No.1 addressed letters dated 26.10.2007 and
3.6.2008 to the State Government raising objections against
the proposal of Mis. Metal Box Ltd. and Mis. 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
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN 459
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
of NOC for construction of tenements meant for project affected A
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 informe,d the
B
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 C
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 D
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
E
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 F
following reasons:
"2. The land which is the subject matter of dispute belonged
to Mafatlal Group. Mafatlal's en~ered into M.O.U. with
Petitioner No. 1 to sell the land for housing of the G
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 H
460 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B 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
c 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 issuea to the
D 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
E
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
F 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
G 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.
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OSWAL AGRO MILLS LTD. v. HINDUSTAN 461
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
4. The main contention urged on behalf of the Petitioners A
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 B
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 c
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. D
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 E
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 F
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 G
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.
H
462 SUPREME COURT REPORTS (2013] 17 S.C.R.
A 6. On behalf of the Respondents, their counsel had sought
to argue that the Petition itself ought not be be adrnitted and
had relied on a large number ·af·judgements fricluding the
judgment of this court in the case of BEST Workers Union Vs.
State of Maharashtra 20085 All M.R. 848. Considering the
B 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
c 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
D 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
E 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
F . 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
G 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
H appellant's plot in the light of Regulation 57(4) (c) of the DC
OSWAL AGRO MILLS LTD. v. HINDUSTAN 463
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
Regulations subject to the requirement of obtaining NOCs from A
different authorities. After about two months, appellant'
submitted proposal for amalgamation I 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 B
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 c
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. D
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 E
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 F
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 G
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
H
•
464 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B renewing the approvals I 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
c 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
D 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
E 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
F 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
G 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
H of high rise building on the plot in question will be a threat to
OSWAL AGRO MILLS LTD. v. HINDUSTAN 465
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.)
the installation of respondent No.1. In an additional affidavit filed A
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 B
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 C
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. D
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 E
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 F
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 G
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 H
\
466 SUPREME COURT REPORTS (2013] 17 S.C.R.
A 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
B refinery. The distance between the boundary wall of the
Petitioners refinery and the said land is approx 4 70 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
c 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:
D
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,
E 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
F building is almost complete and ready for
occupation.
On the North: a)At the distance of 30 to 130 mtrs.
there are more th.l'ln 50 multi storey buildings
G constructed for 61uiin 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
H Slum having a population approximately of 10,000
OSWAL AGRO MILLS LTD. v. HINDUSTAN 467
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
people. A
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 B
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 C
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. D
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. E
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 F
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 G
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
468 SUPREME COURT REPORTS [2013) 17 S.C.R.
A 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
B 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
c 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
D
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
E 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.
F 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 I
referred to. I however say that the issue regarding the
G 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
H all times of the day and night. Heavy vehicular traffic is also
OSWAL AGRO MILLS LTD. v. HINDUSTAN 469
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
a constant phenomenon on the said road. The said road A
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 B
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 c
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
D
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 E
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. F
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
G
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.
H
470 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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.
B 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
c are seeking to render the Petitioners buildable land sterile
without acquiring and paying for the same."
(reproduced from the SLP paper book.)
o 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 Name of Population
E from the from the building/
Refinery Refinery habitation
South o metres; i.e., Gavanapada 7000
almost adjoin- village
F ing the refinery
East a) 18.53 metres Slums of 5000
Paryag Nagar
and Prakash
Nagar
G
b) 125 metres On a raised Almost
ground-res id- complete
ential high rise and ready
tower of 14 for
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN 471
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
storey on the occupation A
Metal Box plot
North a) 30-130 More than 50 6000
metres. multi storied housing
constructed units and B
under the hundreds
SRA scheme of shops
b) 50 metres Vishnunagar 10,000
Slum
c
c) 400 metres Bharat Nagar 20,000
Slum
West Across the road Shops and 200
and opposite hutments
D
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 E
appellant's land from Special Industrial Zone (1-3) to Local
Commercial Zone (C-1) under Regulation No. 57(4)(c) of DC
Regulations, approval granted for amalgamation I sub-division
of the plot and sanction accorded to amended building plans
for construction of residential buildings. The High Court also F
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 conside:r;;;il LI 1e objections raised by various G
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, H
472 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B 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
c 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
0
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
E 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.
F 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:
G "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
H affects health, safety, fire safety, structural safety and public
OSWAL AGRO MILLS LTD. v. HINDUSTAN 473
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
A
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,
8
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 C
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 D
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 E
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 F
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 G
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." H
474 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B
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 Mis. Oswal Agro Mills Limited, Anik, Chembur
(Near HPCL Refinery) would be detrimental to the security/
c 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
o. places were likely to be targeted. lnspite 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
E 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
F 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
H of Maharashtra requesting to review the matter of
OSWAL AGRO MILLS LTD. v. HINDUSTAN 475
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
permissions and clearance granted to Oswal for change A
of user and construction of such high rise construction in
view of the safety reasons involved. We have also PE!rused
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 B
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 c
Oswal Agro Mills Ltd. towards south direction. If 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 infiammable D
substances like LPG, Naptha, Crude oil etc. The Police
department have placed reliance up·on 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 E
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 approva1 to the project of Oswal much after the
said report of Intelligence Bureau and while granting such F
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. Ttu;! serious threats of life and security G
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 H
476 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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.
B 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
c 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.
D 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
E 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
F 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
G
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
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN 4 77
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.)
while taking into consideration various other aspects in the A
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 c
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 D
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
E
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 F
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 G
and is in an industrial zone, the authorities are required to
consider as to whether it wtll. create any nuisance to the
people who are permitted to reside, if high rise buildings
are constructed near such industries. The planning
H
478 SUPREME COURT REPORTS (2013] 17 S.C.R.
A 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
B 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
C authority did not apply mind while sanctioning change of land
use of the plot owned by the appellant.
21. We have heard S/Shri Du1>hyant A. Dave, Rakesh Tiku,
Shekhar Naphade and Pallav Shishodia, Senior Advocates
D appearing fo~ 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
· E 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
F 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
G 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
H is being constructed at a distance of 18 meters from BPCL
OSWAL AGRO MILLS LTD. v. HINDUSTAN 479
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
refinery. ·A
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 B
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 C
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.
Gaitan pad a Village having a population of 7 ,000 is just
adjacent to the refinery. On East and North, several buildings D
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 I
refineries and other industrial units operating in the area on the E
!
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 F
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 G
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
H
480 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B 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
c equally be applied to the case of the appellant and there is no
rational reason to discriminate the appellant vis-a-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
0
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
E 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,
F the impugned order is set aside and the matter is remitted to
thP. 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
G 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
H weeks from today.
OSWAL AGRO MILLS LTD. v. HINDUSTAN 481
PETROLEUM CORPORATION LTD.
26. Since the construction of buildings by the appellant had A
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. B
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.
H.L. GOKHALE J. 1. We have gone through the judgment C
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.
D
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 respori,dent 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
F
·Refinery run by ihe 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 G
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
H
482 SUPREME COURT REPORTS (2013] 17 S.C.R.
A 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
B 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.
c 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
D is also close by. When all these vital installations were set up,
there was hardly any population in this area, and in any case
the.re 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
E 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
F 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
G litigation between the parties.
5. As can be seen from the synopsis of the SLP No.
14202 of 2012 filed by the appellant, it specificallv states as
follows:
H "The petitioners' said plot is located approximately 500
OSWAL AGRO MILLS LTD. v. HINDUSTAN PETROLEUM 483
CORPORATION LTD. [H.L GOKHALE, J.]
mtrs north of the boundary wall of the HPCL Refinery. The A
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
B
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 cor:istruct buildings of 7 to 8
storeys, and it is their submission that when other similar
constructions are permitted iri the vicinity, there is no reason C
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 D
on the basis of utilization of F.S.1., 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.
E
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 F
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, incluaing storage facilities, release
Volatile Organic Compounds into the atmosphere, some of
which are carcinogenic, particularly at the height of funnel G
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
H
484 SUPREME COURT REPORTS (2013] 17 S.C.R.
A 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
B 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
c development around the refineries was being carried out by
Oswal in accordance with the Development Control Regulations
(OCR) 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.
0
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
E 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
F from e: hibits Q to Z to the Writ Petition. Prayer (b) of the petition
was thc1t 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
G 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.
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN PETROLEUM 485
CORPORATION LTD. [H.L ..GOKHALE, J.] (
9. The principal submission on behalf of the appellant A
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) B
(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 c
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. D
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 (1-3) to Commercial Zone (C-1) was granted.
That was on an undertaking from Oswal, that if the Government
E
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 F
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 G
hearing in pursuance to the notice issued by the
Maharashtra Pollution Control Board. Besides, the
conversion from Special Industrial Zone (1~3 Zone) to Local
Commercial Zone (C-1) under regulation 57 (4) (c) of the
OCR 1991 required a certain procedure to be followed
H
which had not been followed, and it could not be without
486 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B 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:
c
"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
D to threat from inimical forces. This was revealed during
interrogation of various arrested militants in the country
over last few years.
David Coleman HeadfY disclosed during his interrogation
E 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, BARG Mumbai, etc.
Several multi storied buildings (57) constructed under
F
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.
G Any planning to construct high rise residential buildings
at the site of demolished factory of Mis Oswal Agro mills
Ltd., Anik, Chembur (Near HPCL Refinery) would be
detrimental to the security/safety of the vital installation."
(emphasis added)
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN PETROLEUM 487
CORPORATION LTD. [H.L. GOKHALE, J.]
11. It is relevant to note that on the security aspect, the first A
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 8
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 Mis Oswal c
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 2301414481 0
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 E
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 F
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 G
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
H
488 SUPREME COURT REPORTS [201~] 17 S.C.R.
A 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
(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
c 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
D 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
E 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."
F 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
G 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
H western side, there are some shops and hutments. In our view,
OSWAL AGRO MILLS LTD. v. HINDUSTAN PETROLEUM 489
CORPORATION LTD. [H.L. GOKHALE, J.]
HPCL cannot be held responsible for these structures. We A
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 B
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
c
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 D
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 E
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 ~ome other buildings are coming up at a distance
of about 800 meters from the refinery. As stated above that all F
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 G
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. H
490 SUPREME COURT REPORTS (2013) 17 S.C.R.
A 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 [lational importance also
came up in the nearby area, the population over there was
sparse, and that is why these installations were permitted to
B 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
c 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
0
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
E 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
theMunicipal Commissioner dated 7.1.2011 which reads as
F follows:-
"INDEMNITY BOND
To,
G The Municipal Commissioner,
M. C. G. M. "Municipal Office, Mahapalika Marg, Mumbai
Hon'ble Sir,"
H
OSWALAGRO MILLS LTD. v. HINDUSTAN PETROLEUM 491
CORPORATION LTD. [H.L. GOKHALE, J.]
Sub: Request to allow the users permission in Local Ai
Commercia/Zone (C-1) on the land bearing CTS No.
381, 38111to21 ofVillage Anik, in 'M' Ward at R.C. Marg,
Chembur, Mumbai.Mis Oswal Agro Mills Ltd.
Ref: File No. CHE/683/DPES" B
/, the undersigned Shri Mahesh Rawal, Authorised
Signatory ofM/s Oswal Agro Mills Ltd, of the above
mentioned propertywhose office situated at Sea Building,
Off Carter Road, BehindCafe Coffee Day, Opposite
Chandni Building, Bandra (W)Mumbai-400 052, hereby C
undertake to indemnify MCGM of anylega/
consequences arising out of HPCL or any
otherorganization/person moves any court of law
restrainingdevelopment on the land under reference.
D
This Indemnity Bond is binding to me, to my heirs,
executors.assignees, assigns and to everybody derives
title through orunder me.
Dated this 7th day of January, 2011
E
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 F
Court, and we disapprove of the same. We refrain from saying
anything more.
16. (i) II was contended on behalf of Oswal, as well as on
behalf of the Municipal Corporation, that the Corporation is not G
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 OCR No.16
H
492 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B No land shall be used as a site for the cvnstruction of
buildings
(a) if the Commissioner considers that the site is
insanitary or that it is dangerous to construct a building
c on it or no water supply is likely to be available within a
reasonable period of time;
(b) ..... .
(c) .... .
D
(d) .... .
(e) if the use of the said site is for a purpose which
inthe Commissiorer's opinion may be a source of
danger to the health and safety of the inhabitants of
E the neighbourhood;
(f) .... .
(g) .... .
F (h) .... .
(i) .... .
(j) .... .
G (k) .... .
(I) .... .
(m) .... .
H
· OSWAL AGRO MILLS LTD. v. HINDUSTAN PETROLEUM 493
CORPORATION LTD. [H.L. GOKHALE, J.]
(n) if the proposed development is likely to involve A
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."
B
Even OCR 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 C
paramount importance to safety. These provisions cast an
obligation on the Municipal Commissioner to take into
consideration the objections in this behalf.
(ii) OCR 57 (4) (c) was relied upon by the appellant and
the Municipal Corporation in defence of the change of user. We 0
are conscious that this OCR contains a non-obstante clause,
but all that it states is that 'notwithstanding anything contained
above' (i.e. earlier in the OCRs), 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 E
the objections that are raised. The power under OCR 57 (4)
(c) could not be exercised as a stand alone power, when
specific objections relatable to OCR 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 F
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) 9cc 434.
However, all that thesg..paragraphs st::i.tiris-U:lat-BCR 57 (4) (c) G
is pari materia with OCR 56 (3) (c), whicih is on the General
Industrial Zone (1-2 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
494 SUPREME COURT REPORTS [2013] 17 S.C.R.
A policy, and it can be given effect to, to the extent Parliament
intended and not beyond the same (See Para 36 of /CIC/ 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
B 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
c 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
D that the Writ Petition was belated. With reference to this
submission, we must note that the 1.0.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
E 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
F the parties on the issue of security threat and possible danger
to the health of the occupallfs 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
G 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. I~ 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
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN PETROLEUM 495
CORPORATION LTD. [H.L. GOKHALE, J.]
Department, Ministry of Petroleum, Ministry of Environment and A
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 B
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 C
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 D
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 E
these two appeals. The parties will bear their own costs.
Bibhuti Bhushan Bose Appeals dismissed.
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