1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1891 OF 2007 1. Bharat Petroleum Corporation Limited 2. Amitabha Sengupta ....Petitioners v/s. 1. State of Maharashtra 2. The Chief Secretary to the Government of Maharashtra. 3. The Collector, Mumbai 4. The Commissioner, BMC 5. The Director (PROV) 6. Slum Rehabilitation Authority 7. Union of India through the secretary Ministry of Enviourment 8. Eversmile Construction Ltd. 8A. Conwood Construction & Development Pvt.Ltd. 8B. D.B.Realty Pvt.ltd. 8C. M/s.Dynamix Realty ...Respondents ... Mr.F.Devitre, Sr.Advocate with Mr.N.H.Seervai, Sr.Advocate, Mr.Phiroz Palkhiwala, Mr.F.Dubash, Mr.T.k.Majumdar and Mr.A.C.Sarkate i/b Mr.S.R.Page for Petitioners. 2 Mr.Ravi Kadam, Advocate General with Mr.G.W.Matoes, AGP for Respondents Nos. 1 to 3. Mr.G.D.Utangale i/b M/s.Utangale and Co. for Respondent No.6. Mr.R.B.Raghuvanshi, Additional Solicitor General with Mr.Rajiv Chavan, Mr.Vinod Joshi, Ms.Rutuja Ambekar for Respondents Nos. 6 and 7. Mr.K.K.Singhvi, Sr.Advodate with Ms.S.M.Modle for Respondent No.4. Mr.Harish Salve, Sr.Advocate with Dr.Milind Sathe, Sr. Advocate, Mr.Parimal Shroff, Mr.M.Agarwal, Mr.M.Bhatt and Ms.Bharti Bhagwat i/b M/s.P.K.Shroff and Co. for Respondent No.8. Mr.Mukul Rohatgi, Sr.Advocate with Mr.Aspi Chinoy, Sr.Advocate, Mr.P.K.Shah and Mr.Subodh Joshi i/b M/s.Negandhi, Shah & Himaytullah for Respondents Nos.8A to 8C. ... CORAM: D.K.DESHMUKH, & R.S.MOHITE, JJ DATED: 9th June, 2009 ORAL JUDGMENT: (PER D.K.DESHMUKH, J) 1. The Petitioners by this petition take exception to the 3 designation of the land which is the subject matter of this petition for the purpose of rehabilitation of slum dwellers and foot path dwellers by effecting minor modifications in the final development plan. 2. The facts that are relevant and material are as follows: The Petitioner No.1 is a company incorporated under the Companies Act. 54.93% share of the Petitioner No.1 company are held by the Government of India. The Petitioner No.1 carries on business of Petroleum products. The Petitioner No.2 is the share holder of the Petitioner No.1 company and is working as General Manager at the Refinery of the Petitioner No.1 in Mumbai. According to the Petitioner No.1, the Petitioner No.1 set up a refinery in 1955 at Mahul, Chembur. The Petitioners produce and refine about 12 million metric tones per annum of petroleum products, such as Motor Spirits, High Speed Diesel, Aviation Turbine Fuel, Liquified Petroleum Gas, etc. In addition to production facilities, the Petitioners also have storage facilities; i.e. Huge tanks with a capacity of 1080 thousand metric tonnes. These 4 storage tanks are situate along the northern and western boundaries of the Petitioners’ refinery. The Petitioners produce, refine, store and deal in materials that are highly inflammable. 3. The subject matter of the petition is the land bearing CTS No. 1 to 12,355 to 366 of village Mahul, Taluka Kurla. This land is at a distance of about 80 meters from the boundaries of the land on which the refinery of the Petitioners is situated. This land was originally owned by Mafatlal Fine Spinning and Manufacturing Company Ltd. The said land was partly in special industrial zone (I-2) and partly in residential zone. This was as per the development plan of M-Ward sanctioned in the year 1967. A portion of the said land was reserved for the public amenities, such as garden and development plan road. In the year 1984 when the draft development plan was published, the land was proposed to be marked as “No Development Zone”. It appears that this land under the provisions of the Urban Land Ceiling Act , which came into force in the year 1976, was found to be surplus. During the process of the suggestion/objections as per the Maharashtra Regional Town Planning Act, 1966 (herein after referred to as the “Act”) to the draft 5 development plan, the land owner and the Petitioners made a representation for deletion of the designation of the land as No development zone. It was requested that the land should be placed in residential zone, because the Petitioners and the land owners had entered into a MOU for development of the land for construction of staff quarters for the employees of the Petitioners. At the request of the Petitioners and the owners, the Urban Land Ceiling Department of the Government of Maharashtra made an order under Section 20 of the Urban Land Ceiling Act dated 25-1-1990 exempting the land from the provisions of the Urban Land Ceiling Act for using the said land for construction of residential quarters for the staff and workers of the Petitioners. Thereafter, by notification dated 8-5-1992 while sanctioning the draft development plan, the said land admeasuring about 18.30 HA was included in the residential zone for housing for staff and workers of the Petitioners. It was also a condition imposed that the land should also be reserved for municipal retail market, recreation ground, maternity home and Dispensary apart from the normal lay out conditions. Thus, at the request of the Petitioners, the Government firstly exempted the land from the provisions of the Urban Land Ceiling Act subject to the 6 conditions that the land should be mainly used for staff quarters of the Petitioners. Thereafter, amendment to the draft development plan was also approved and the land was now designated mainly to be used for the staff quarters of the Petitioners. The amended draft development plan came into force on 15-7-1992. Thereafter, it appears that there was correspondence between the Respondent No. 8, who was the developer, who was to carry on development on the land and the Petitioner No.1 about starting of the development on the land. But nothing was done by the Petitioners. On 4th August, 1993, a letter was addressed by the Petitioners to the Government of Maharashtra expressing doubt about the validity of the exemption order made under Section 20 of the Urban Land Ceiling Act because of the judgment of the Supreme Court in the case of S.Vasudeva vs. State of Karnataka and ors, AIR 1994 SC 93. In that judgment, according to the Petitioners, the Supreme Court had laid down that after exempting the land from the provisions of the Urban Land Ceiliing Act, the vacant land cannot be transferred. That letter was replied to by the Government of Maharashtra. The reply is dated 21st September, 1993. Paragraphs 2 and 3 of that letter are relevant. They read as under: 7 “I am directed to state that in this case surplus vacant land is owned by M/s.Mafatlal Fine Spinning and Manufacturing Co.Ltd. , and the same is exempted for construction of residential flats for the employees of your Corporation through Eversmile Construction Co.Pvt.Ltd. The ownership of land will remain with M/s.Mafatlal Fine Spinning and Manufacturing Company until all the tenements are constructed and conditions of the exemption order are fulfilled by that Company. No sooner the land becomes fully developed it will be out of the purview of the Urban Land Ceiling Act. As mentioned in the latter part of the condition No.9 of the exemption order it shall be permissible for the landholder to transfer the exempted land in your favour at the 8 stage when the project is completed. Since vacant land is not being transferred from one to other, the Hon’ble Supreme Court’s judgment dt.30th March, 1993 in the case of Shri S.Vasudeva V/s. State of Karnataka does not become applicable in the present case. Despite this reply from the State Government, it appears that there was no response from the Petitioners. Therefore, the developer-Respondent No.8 addressed a communication to the Petitioners dated 31st May, 1994. The last paragraph of that letter is relevant. It reads as under: We have now realized that BPCL is not interested to pursue this matter, hence we are giving final notice to you by this letter that on or before 15th June, 1994 if we do not concluded this transaction we shall presume that BPCL is not interested and we shall be free to approach Government of 9 Maharashtra with a request to make necessary change in the Development Plan for `M’ Ward striking BPCL and keeping the land for general housing i.e. The land should be put under residential zone and simultaneously we shall approach housing department of Government of Maharashtra for converting the NOC into general NOC in accordance with the same scheme operating under Section 20(i) of ULC Act. 4. This letter was replied to by the Petitioners. The reply is dated 15-6-1994. Paragraph 4 of that reply is relevant. It reads as under:- “In the meantime, the Supreme Court of India in its judgment dated 30th march 1993 iin the matter of S.Vasudeva Vs State of Karnataka & Ors. (AIR 1994 SC 923) raised certain doubts about the Governments’ power to grant an exemption order of the nature granted by the Government of Maharashtra to the land owners. We therefore 10 sought clarification from the Government of Maharashtra and until such clarification is received, we are unable to take any further steps in the matter. In view of the above, we intend to proceed further in the matter on our being satisfied about the legality of the proposed transaction.” 5. It is pertinent to be noted that though on 15-6-1994 when this reply was written, clarification from the Government of Maharashtra dated 21st September, 1993 was already received by it was forgotten. It appears that in this situation, the Government in the Urban Development Department received a letter from the Slum Rehabilitation Authority dated 24-8-1998 requesting for modification of the exemption order in relation to the land by permitting the land to be used for rehabilitation of the slum dwellers. The Respondent No.8 developer also appears to have submitted a proposal of the similar nature dated 7th April, 1999 and therefore, the Government of Maharashtra issued an order dated 7th April, 1999 modifying its earlier order dated 25th January, 1990. Now, the land was 11 exempted from the provisions of the Urban Land Ceiling Act for the purpose of construction of houses for the rehabilitation of the slum dwellers. It appears that before issuing this corrigendum or modification, the Petitioners were not given any notice. It appears that even a copy of this order was not immediately forwarded to the Petitioners. However, it is not disputed before us that along with his letter dated 3-2-2000 the Collector , Mumbai (Suburban) had forwarded a copy of the modified order passed under Section 20 of the Urban Land Celing Act. It is also common ground that the Petitioners did not take any steps to challenge the corrigendum or modifications of the order passed under Section 20 of the Urban Land Ceiling Act, till they amended their petition to include a prayer for setting aside the order. 6. It appears that the Intelligence Bureau in the Ministry of Government of India had addressed a letter dated 5th July, 2000 to the Collector, Mumbai. It appears from the letter that the letter was addressed because the Intelligence Bureau had received a communication from the Petitioners due to construction of 12 activities that was started by Respondent No.8 after exemption order was modified. The Intelligence Bureau in that letter sated thus: “However, as the land belongs to a private party and not to the affected party (BPCL & HPCL), it may not be possible to do anything in the matter. The onl;y viable alternative that one could think of is to have the land alongwith the existing structure purchased, if possible, by the BPCL & HPCL as suggested by you and thereafter converted the entire area as a green belt or keep the same earmarked for future expansion. I would rather request you to pursue the matter with the State Govt. before it is too late for such an action. 7. After receiving the communication from the Intelligence Bureau, it appears that the Collector, Mumbai communicated the same to the Petitioners by addressing a letter dated 18th July, 2000. 13 The Petitioners by letter dated 7th October, 2000 informed the Collector that “Our Board considered the matter and approved in principle acquisition of the said plot of land admeasuring approximately 1,84,000 sq.meters, through land acquisition proceedings by Government of Maharashtra. In view of the above we now seek your assistance for commencement of necessary acquisition proceedings at the earliest so that security/safety threat to vital installations in this area can be reduced.” 8. It appears that the Municipal Corporation had asked the builder to stop the construction work by notice dated 31-1-2001. Therefore, on learning that the Petitioners Board had agreed to acquire the land under the Land Acquisition Act, the Builder on 10-2-2001 served a purchase notice under Section 49 of the Act. It appears that, thereafter, again there was no further development till a meeting was held on 22-10-2003, which was presided over by the Principal Secretary, Home Department, and attended by the representatives of the Police Commissioner, Mumbai, representatives of the Petitioners, other police officers as also the representatives of the developer-Respondent No.8 and the Collector 14 (Mumbai). The minutes are relevant. Therefore, they are quoted verbatim. The Government of India, Ministry of Home Affairs have referred the matter involving the security scenario at the refinery of Bharat Petroleum and the establishments like Bhabha Atomic Research Center, Tata Power etc. M/s.Eversmile Construction Co. has obtained permission at Mahul creek area, there on a plot of private land, for residential purpose. During discussions, it was mentioned that the land was originally earmarked by the BPCL for their residential quarters and a tripartite agreement between the Mafatlals, the original owner of the land, M/s.Eversmile Construction Co. and BPCL was arrived at. However, for some reasons both Mafatlal and BPCL did not follow up on the agreement and the Eversmile Construction Co. 15 went ahead with the project of Construction of residential premises after obtaining the necessary clearance from the concerned agencies of the State Government including the Department of Urban Development. However, of late an issue regarding violation of the CRZ rules has cropped up and the same is waiting for Government of India’s final decision. Meanwhile, the meeting noted that in the vicinity of all these installations, the gaothan of village Mahul already exists and is probably expanding- leading to major security threats. The meeting therefore, felt that the following decision needs to be taken:- 1) The land in question at Mahul Creek is to be purchased by Bharat Petroleum Corporation Ltd., as they feel that construction on the land will jeopardize the security perspective. 16 2) The Collector, Mumbai Suburban will inform BPCL regarding the detailed procedure of land acquisition alongwith it’s cost implications. 3) The BPCL may immediately send a proposal for land acquisition to the Revenue and Forest Department of this State under intimation to the Collector, Mumbai Suburban District. 4) The compensation, if any, will be borne by BPCL. 5) M/s.Eversmile Construction will be officially informed about the acquisition proceedings. 9. After this meeting the Collector by letter dated 24-11-2003 furnished all the details regarding submission of the proposal for 17 acquisition of the land to the Petitioners. The Collector, thereafter, addressed another letter dated 2-12-2003. That letter reads as under:- “Please refer to this office letter of even number dated 24-11-2003 on the abovementioned subject. It is mentioned in the above letter that the total area held by M/s.Eversmile Construction company Pvt.Ltd. Is 72408.32 sq.meters. However, the company has pointed out by its letter dt.29-11-2003 that the actual area held by the Company is 1,82,295.00 sq.mtrs. The Company has further stated that out of the total area adm. 1,82,295.00 sq.mtrs. An area adm. 25,756.50 sq.mtrs, is affected by various D.P.reservations and the same has been handed over by them to MCGM in accordance with D.C.Regulations. Thereafter, the net land to be 18 acquired by BPCL is 1.56.538.50 sq.mtrs. The total cost of land as per the Ready Reckner for 2003 comes to Rs.84,53,07900/-. In addition to that company will have to bear 30% solatium and 12% additional component over the land cost. You are requested to submit your proposal for acquisition of the land adm.1,56,538.50 sq.mtrs. In the prescribed form in triplicate alongwith required information as mentioned in our letter dt.24-11-2003. 10. Thus, the Collector informed the Petitioners the measurement of the land to be acquired as also the approximate amount of compensation that will have to be paid by the Corporation. It appears that though thereafter there was correspondence between the Collector and the Petitioners to this date, proposal for acquisition of the land together with the amount to be deposited with the Collector has not been submitted by the Petitioners. In the meantime, the Government of Maharashtra in the Urban Development Department issued an order dated 18th October, 2001 19 under Section 37 of the Act for effecting minor modifications in the final development plan in relation to the land so that the designation of the land in the final development plan is in the line with the order made by the Government under Section 20 of the Urban Land Ceiling Act. Pursuant to the order issued by the Government, a public notice dated 4th August, 2005 was issued by the Corporation inviting objections and suggestions to the proposed minor modifications. Admittedly, no individual notice was issued to the Petitioners. The Corporation, thereafter, submitted proposal to the Government of Maharashtra and the Government of Maharashtra issued a notification dated 30th March, 2006 making minor modifications in the development plan brining the plan in line with the exemption order passed under Section 20 of the Urban Land Ceiling Act. With the result, now the land could be used for rehabilitation of the slum dwellers and the footpath dwellers. By conveyance dated 30th March, 2007 to which the owner Mafatlal industries, Respondent No.8, Slum Rehabilitation Authority and the Municipal Corporation are parties, the land has been conveyed to the Corporation for being used for the purpose for which it is designated in the final development plan. Though the copy of this 20 document has been produced on record, there is no prayer in the petition for setting aside this conveyance. Thereafter, the present petition was filed on 1-9-2007 initially challenging only notification issued under Section 37(1) effecting minor modification in the final development plan in relation to the land. It appears that, however, after replies were filed by the Respondents, petition was amended and even the order issued by the State Government making modifications in the order passed under Section 20 of the Urban Land Ceiling Act has also been challenged. 11. The Respondents have filed their replies. We have heard the learned Counsel appearing for the Petitioners and of the Respondents in detail. 12. Before dealing with the rival submissions we will like to indicate what can be taken as admitted and/or established positions on record; (i) The land in question is near the land of the Petitioners, where the Petitioners have set up their refinery and the distance is 21 about 90 meters between the two lands; (ii) The land was owned by Mafatlal Industries. They had entered into an arrangement with the Respondent No.8 for development of the land. (iii) On commencement of the Urban Land Ceiling Act 1976, the land was found to be surplus under the provisions of that Act. (iv) A tripartied agreement was entered into between the owners Mafatlal, the Petitioners and the Respondent No.8-developer for using substantial portion of the land for construction of staff quarters for the employees of the Petitioners. (v) A joint application was made by the three parties to the Government in Urban Development Department for exemption of the land from the provisions of the Urban Land Ceiling Act by making an order under Section 20 of the Act so that the land can be developed by the Respondent No.8 and staff quarters for the Petitioners could be constructed; (vi) On 25-1-1990, the Government accepting the request made by the land owner, developer and the Petitioners exempted the land from the provisions of the Urban Ceiling Act for using the said land for construction of residential quarters. 22 (vii) In the original draft development plan, the land was shown as being designated as No Development Zone. (viii) In view of the order dated 25-1-1990 passed under Section 20 of the Urban Land Ceiling Act, when the draft development plan was sanctioned by notification dated 8-5-1992, the land was now designated as residential zone for housing the staff and workers of the Petitioners; (ix) Thus, now, because of the orders passed under the Urban Land Ceiling Act and the provision made in the development plan, the Petitioners could have gone ahead with the construction of the staff quarters on the land. But nothing was done. (x) The Government issued corrigendum on 7th April, 1999, at the request of the Slum Rehabilitation Department and the Developer, modifying its earlier order dated 25-1-1990 now the land was exempted from the provisions of the Urban Land Ceiling Act for being used for rehabilitation of the Slum dwellers and footpath dwellers. This order was communicated to the Petitioners by the Collector by sending copy thereof along with his letter dated 3-2-2000. This order 23 was not challenged by the Petitioners till this petition was amended in the month of January, 2008 and prayer was made for setting aside the corrigendum. By letters dated 24-11-2003 and 2-12-2003 the Collector, Mumbai had supplied information to the Petitioners about the measurement of the land to be acquired and approximate price that will have to be paid by the Petitioners. Till this date neither the amount has been deposited with the Collector nor a proposal has been submitted for acquisition of the land. (xi) Though there is a prayer made in the petition that the final development plan shall be modified to show the suit land in no development zone, but to this date neither any application has been made by the Petitioners either to the Corporation or to the State Government for initiating the process for such modification in the final development plan. 13. Now in the light of these admitted and established positions on record, we will examine the submissions advanced on behalf of both sides. But before doing that we will like to point out here that even accepting the case of the Petitioner at it best or highest the 24 Petitioners cannot be granted any relief in this petition. Assuming that there is a security threat to the refinery of the Petitioners because of the designation of the land in the final development plan for rehabilitation of the slum dwellers and footpath dwellers, in our opinion, that designation can be cancelled or annulled only in accordance with the established law and merely because there is an apprehension of security threat, the established law cannot be ignored. In other words, the measures for safeguarding the security interest will also have to be taken in accordance with the law. Taking the case of the Petitioners at its highest is that the corrigendum issued under Section 20 of the Urban Land Ceiling Act is invalid because it has been issued without issuing any notice to the Petitioners. Even if this case is accepted and corrigendum issued by the State Government is set aside, then it will also not serve any purpose of the Petitioners. Because the consequence of setting aside the corrigendum issued by the State Government would be that the original order will remain in force. By the original order the land was exempted from the provisions of the Urban Land Ceiling Act so that it can be used for housing the staff of the Petitioners. It is an admitted position before us that the Petitioners do not want to house 25 their staff on the land and that they want the land to be in the no development zone. The land was exempted from the provisions of the Urban Land Ceiling Act, because there was tripartied MOU between the Petitioner No.1, the owner and the developer. Firstly, it is clear from the record that the M.O.U. is no longer in force and secondly now the owner of the land is the Municipal Corporation and the