-1- mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 710 of 2008 Mohankumar Jaigopal Arora ..Petitioner vs. 1. The Municipal Corporation of the City of Thane and anr. ..Respondents Shri V.B.Naik i/b M/s Dhruv Liladhar and Co. for petitioner. Shri R.S.Apte for respondent no.1 Shri C.R.Sonawane, A.G.P. for respondent no.2. CORAM: J.N.PATEL & CORAM: J.N.PATEL & CORAM: J.N.PATEL & S.J.KATHAWALLA JJ. S.J.KATHAWALLA JJ. S.J.KATHAWALLA JJ. 7th October, 2008 7th October, 2008 7th October, 2008 ORAL JUIDGMENT:(Per S.J.KATHAWALLA J.). ORAL JUIDGMENT:(Per S.J.KATHAWALLA J.). ORAL JUIDGMENT:(Per S.J.KATHAWALLA J.). 1. Heard the learned Advocates appearing for the parties. 2. Rule. Rule made returnable forthwith. Learned Advocates for the respondents waive service. By consent, Rule taken up for hearing. 3. The petitioner is the owner of the land bearing Survey No. 326A, Plot No.1, admeasuring 18058.50 sq.meters along with the structures standing thereon situate at village Majiwada, Mohan Mills -2- Compound, Ghodbunder Road, Taluka and District Thane. (the said property). Respondent No.1 is the Municipal Corporation of Thane. Respondent no.2 is the State of Maharashtra. Pursuant to the order dated 9th September, 1996 the Ministry of Environment and Forests, Government of India by its notification dated 28th November, 1996 constituted an Authority known as "Authority for Environmental Planning for Thane" (the said Authority). The object of the said Authority were to assess the environmental impact of industries in Thane and any area appurtenant thereto which was to be demarcated by the said Authority for the purpose of environmental planning of Thane including relocation of the industries. 4. By its letter dated 22nd July, 1997 bearing No.DEPT/N/605 the said Authority submitted its final report to the Ministry of Environment and Forests, Government of India, and other departments including the Urban Development Department of respondent no.2 wherein several suggestions were made including that there should be a safety belt of 250 meters from the chemical storage tanks of various chemical industries and the chemical -3- industries should be phazed out. Pursuant to the said final report of the authority, the Urban Development Department issued notification dated 28th October, 1997 under section 154 of the M.R.T.P.Act, 1966 giving directions to the Respondent no.1 for granting development permission around hazardous chemical industries. However, no clarifications/directions were issued regarding phasing out the chemical Industries in future, as suggested inthe final report of the said Authority. The legality and validity of the notification dated 28th October, 1997 was challenged in Writ Petition No,.2094 of 2001 which was disposed of by a judgment and order dated 19th July, 2002 of this Court. The writ petition was allowed and respondent no.1 was directed to consider, approve and sanction the building plans of the petitioners therein in accordance with the Development Control Regulations as beyond the purview of the Notification dated 28th October, 1997. Subsequently in writ petition Nos.8385 and 8928 of 2003, this Court by an order dated 17th March, 2004 also clarified that the interpretation of the said Notification dated 28th October, 1997 by this Hon’ble Court by its order dated 19th July, 2002 in -4- Writ Petition No.2094 of 2001 applies to all similarly situated companies/parties and that notification is not restricted to a particular site. 5. The petitioner who is the owner of the said property by indenture dated 28th November, 2002 granted lease in favour of IOL Infotech (India) Ltd. of the portion of the said property on terms and conditions mentioned therein. The petitioner’s Architect by application dated 22nd November, 2007 requested respondent no.1 to revise the plans on the basis of 1.00 F.S.I. By the said letter the petitioner pointed out that the respondents had granted 0.5 F.S.I. on the basis that as per the development plan the petitioner’s plot is shown as of low density of M/s Raghunandan Chemical Co. and that since the said M/s Raghunanand Chemical Co. is closed down and is not in existence and since petitioner’s plot is used for residence the chemical strip shown on the plot is required to be removed and released and revised plan for 1.00 FSI be granted. However, respondent no.1 by its letter dated 8th January, 2008 rejected the petitioner’s application. The petitioner’s application dated -5- 22nd November, 2007 for sanction of revised building plans was rejected on the ground that there is no change in the revised building plans. It is the petitioner’s case that it is an admitted fact that the said chemical company has already closed down and in Writ Petition No.5294 of 2004 filed by the same chemical company against the respondent no.1 and another, this Court by its order dated 8th July, 2004 had directed the respondent no.1 to consider the proposal of amendment of the plans of the said chemical company. The petitioner has also pointed out that another land belonging to one Sulzar Pumps which is adjacent to the chemical company has received permission for development of residential buildings on its land on the ground that the said chemical company is not in existence. Infact, the Respondent no.1 has already granted commencement certificate dated 11th November, 2004 and also occupation certificate dated 25th July, 2007 to the said Sulzar Pumps. 6. The petitioner, therefore, submitted that the chemical belts demarcated in the development plan should not be a hindrance to the grant of approval -6- and commencement certificate of the petitioner’s building plans with FSI of 1.00. The chemical company itself has shut down in the year 1990 and that respondent no.1 has approved and granted commencement certificate for construction of residential buildings on the land of the chemical company itself. The petitioner has, therefore, by this writ petition impugned the rejection by respondent no.1 to sanction the revised building plans submitted by the developers. 7. The learned Counsel for the petitioner has produced before this Court the Resolution passed by the General Body of respondent no.1 dated 19th July, 2008 wherein clause (D) of the proposed modification to Clause N1.3 reads as follows: "the land under Chemical Industry, which is closed or allowed to be shifted under Industrial Act, shall be allowed to be developed as per the Development Control Regulation, 1995. The green belt of 100 mtr.and further 150 mts. Low Density belt around such closed or shifted Company shall suo-motto cease to exist after such -7- permissions are granted." After passing the above Resolution the Municipal Corporation has invited objections from the public under the M.R.T.P.Act. The petitioner has submitted that the Municipal Corporation can take decision on the subject matter of the present petition after receiving objections from the public. It is the case of the State Govt. in their affidavit dated 6th September, 2008 filed before this Court that Thane Municipal Corporation can grant development permission only after modification of the D.P. and D.C.R. is sanctioned by the Government under section 37(2) of the MRTP Act. 9. In view thereof, we direct respondent No.1 Municipal Corporation of Thane to take a decision in respect of modification of development plan in pursuance of resolution dated 19th July, 2008 and pass appropriate orders on the plan submitted by the petitioner within a period of four weeks after seeking approval from the State Government. 10. Rule made absolute in the above terms. No -8- order as to costs. (S.J.KATHAWALLA J.) (J.N.PATEL J.) (S.J.KATHAWALLA J.) (J.N.PATEL J.) (S.J.KATHAWALLA J.) (J.N.PATEL J.)