Case: Oswal Agro Mills Ltd Vs. Hindustan Petroleum Corp. Ltd.

binding to me, to my heirs, executors, assignees, assigns and to everybody derives title through or under me.Dated this 7th day of January, 2011Yours faithfullyOswalAgro Mills Ltd.” In view of this Indemnity Bond, the Municipal Corporation had no reason to file any appeal against the order of the High Court, and we disapprove of the same. We refrain from saying anything more. 16. (i) It was contended on behalf of Oswal, as well as on behalf of the Municipal Corporation, that the Corporation is not required to go into the security aspect and the environmental clearance as a pre-requisite before any such proposal is cleared. It was submitted that this was outside its jurisdiction. In this behalf, we may refer to the relevant portion of DCR No.16 which falls in Part II of the DC Regulation of 1991 containing ‘General planning requirements, Land uses and manner of development’. The relevant portion reads as follows:- “16. Requirements of SitesNo land shall be used as a site for the construction of buildings-(a) if the Commissioner considers that the site is insanitary or that it is dangerous to construct a building on it or no water supply is likely to be available within a reasonable period of time;(b) ……(c) …..(d) …..(e) if the use of the said site is for a purpose which in the Commissioner’s opinion may be a source of danger to the health and safety of the inhabitants of the neighbourhood;(f) …..(g) …..(h) …..(i) …..(j) …..(k) …..(l) …..(m) …..(n) if the proposed development is likely to involve damage to or have deleterious impact on or is against urban aesthetics or environment or ecology and/or on historical/architectural/ aesthetical buildings and precincts or is not in the public interest.” Even DCR No.64 which gives the ‘Discretionary powers’ to the Commissioner, does not permit him under sub-clause (b) thereof to grant relaxation which will affect safety, fire safety and public safety of the inhabitants of the building and the neighbourhood. Thus, this power is coupled with the duty to give paramount importance to safety. These provisions cast an obligation on the Municipal Commissioner to take into consideration the objections in this behalf. (ii) DCR 57 (4) (c) was relied upon by the appellant and the Municipal Corporation in defence of the change of user. We are conscious that this DCR contains a non-obstante clause, but all that it states is that ‘notwithstanding anything contained above’ (i.e. earlier in the DCRs), such a change of user may be permitted. Thus, it is an enabling provision, though it does not mean that the power therein is to be exercised disregarding the objections that are raised. The power under DCR 57 (4) (c) could not be exercised as a stand alone power, when specific objections relatable to DCR 16 had been raised. MRTP Act being an act to provide for planned development, the provisions of the DCRs will have to be read purposively and harmoniously, and not disjunctively. The appellants had relied upon paragraphs 41 and 42 of the judgment of this Court in Bombay Dyeing & MFG Co. Ltd. Vs. Bombay Environmental Action Group and Ors. reported in 2006 (3) SCC 434. However, all that these paragraphs state is that DCR 57 (4) (c) is pari materia with DCR 56 (3) (c), which is on the General Industrial Zone (I-2 Zone). However, the judgment does not lead us anywhere further on the issue in hand. As against that, we must note that this Court has held that the wide amplitude of a non-obstante clause must be kept confined to the legislative policy, and it can be given effect to, to the extent Parliament intended and not beyond the same (See Para 36 of ICICI Bank Vs. Sidco Leather Ltd. 2006 (10) SCC 452). HPCL had lodged their objections, and the Municipal authorities were required to consider the same but they have not. Rather, they refused to consider these objections on a totally erroneous reading of the DCRs as can be seen from their earlier referred letter dated 28.10.2010. Where human habitation is permitted in proximity of hazardous plants, there is an immediate, as well as long term, danger of exposure to health hazards. The planning authority cannot ignore these aspects. The public interest cannot be sacrificed at the altar of commercial interests. The submissions of the Municipal Corporation and Oswal are clearly contrary to the above regulations, and are therefore rejected. (iii) Oswal and the Municipal Corporation had contended that the Writ Petition was belated. With reference to this submission, we must note that the I.O.D was issued to Oswal on 11.11.2010, and the Commencement Certificate (to start the construction upto the stilt) was issued on 11.11.2011. The Writ Petition filed on 16.9.2011 could not therefore be said to have been filed belatedly. 17. Our Brother Singhvi, J. has apart from allowing the appeal and setting aside the order, directed the High Court to re-hear the matter after considering the material produced by the parties on the issue of security threat and possible danger to the health of the occupants of the buildings already constructed and that of the prospective occupants of the appellant’s buildings. As stated above, in our view the security threat is clearly placed on record, as also the possible danger to the health of the occupants of the buildings already constructed and to be constructed as well. The order of the High Court has set aside all the approvals in favour of Oswal. It has taken care of some of these issues when it directed the Municipal Commissioner to reconsider the application made by Oswal after considering (a) the objections of the Police Department, Ministry of Petroleum, Ministry of Environment and Intelligence Bureau report, and also the Security Control Regulations framed by the State of Maharashtra. (b) The High Court has also directed that the Municipal Commissioner will pass the order after hearing the parties and after considering the views expressed by the High Court and in accordance with law. In

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. (i) Our Learned Brother Singhvi, J. appears to have been persuaded to accept the submissions of the appellant in view of the affidavit of Dr. Seema Garg, Vice President of the appellant. The affidavit points out that on the southern side of the refinery, the Gavanapada Village is located with a population of about 7000 people. We must, however, note that this is an old village establishment and one cannot do away with it. It is stated that on the eastern side there is a slum at a distance of about 18.53 meters. On the northern side, there are two slums at Vishnu Nagar and Bharat Nagar, and on the western side, there are some shops and hutments. In our view, HPCL cannot be held responsible for these structures. We must, in any case, note that they are all structures of an insignificant height. On eastern side, there is a high-rise tower of 14 storeys which is almost completed, but yet not occupied, but which had all throughout been objected to by HPCL. On the northern side, there are more than 50 multi-storey buildings constructed in the Slum Rehabilitation Scheme which also are not occupied. We must, however, note that because of the resistance of the first respondent, the upper floors of these buildings are to be allotted to the Police department.(ii) The affidavit of Dr. Seema Garg has emphasized all these aspects which have been quoted in the order prepared by our Learned Brother, but he has not considered the above explanation of HPCL in that behalf. It has been stated in paragraph 22 of his judgment that the High Court has allowed the Writ Petition by relying upon the report of Intelligence Bureau and the affidavit of the Assistant Commissioner of Police, but according to him they are not based on any scientific study or expert analysis. In our view, the statement in the affidavit of the Assistant Commissioner of Police as well as the extracts from the report of the Intelligence Bureau are quite cogent. The view of the Police Commissioner is reinforced by the Central Home Ministry on the background of the terrorist attack in the city on 26.11.2008. It has also been mentioned in paragraph 23 of his judgment that some other buildings are coming up at a distance of about 800 meters from the refinery. As stated above that all throughout these developments have been objected to by HPCL.Therefore, HPCL cannot be faulted for such constructions which are permitted by the Municipal Corporation. Besides, merely because such constructions have been permitted so far, that does not justify any more high-rise constructions coming up in the vicinity. We are aware of the serious accidents which took place at the IOCL refinery at Jaipur, and also at the Union Carbide Factory, Bhopal. Any such accident would cause serious loss of life and property, and would be hazardous to the occupants of these constructions.14. What is most relevant to note is that when the refinery of the first respondent came up in the year 1952, and the other earlier referred vital installations of national importance also came up in the nearby area, the population over there was sparse, and that is why these installations were permitted to be set up at locations in the Mahul area of Chembur far away from the Island city of Mumbai. Now the city has grown-up, as also the suburbs, and people are trying to occupy the vacant spaces wherever available. The Municipal Corporation and the State of Maharashtra ought to have checked and stopped these constructions, particularly the high-rise ones in the vicinity of these installations, but they have failed in doing the same. It cannot, however, justify further dereliction of their responsibilities. Merely because some constructions have been permitted at some distance from the refinery of the first respondent, does not mean that further high-rise constructions should be permitted to come up nearby. Two wrongs do not make one right.Our Brother Singhvi, J. has apart from allowing the appeal and setting aside the order, directed the High Court to re-hear the matter after considering the material produced by the parties on the issue of security threat and possible danger to the health of the occupants of the buildings already constructed and that of the prospective occupants of thebuildings. As stated above, in our view the security threat is clearly placed on record, as also the possible danger to the health of the occupants of the buildings already constructed and to be constructed as well. The order of the High Court has set aside all the approvals in favour of Oswal. It has taken care of some of these issues when it directed the Municipal Commissioner to reconsider the application made by Oswal after considering (a) the objections of the Police Department, Ministry of Petroleum, Ministry of Environment and Intelligence Bureau report, and also the Security Control Regulations framed by the State of Maharashtra. (b) The High Court has also directed that the Municipal Commissioner will pass the order after hearing the parties and after considering the views expressed by the High Court and in accordance with law.