Case: SATWARATNA CO-OP HOUSING SOCIETY LTD. &amp; ANR Vs. BHARAT PETROLEUM CORPORATION LTD. &amp; ORS

the impugned order, the Commissioner taking into consideration the apprehensions expressed by the petitioner. The petitioner points out as to how the vital installations are targets of terrorists and the activities of this nature are carried out throughout the world. Such installations are regular targets. To paralyse the economy and to block the regular supply of petroleum products that regularly the refineries are attacked. Merely because after 26th November, 2008, no terrorist attack or bomb blast has taken place in the city of Mumbai does not mean that there will no recurrence of the same in future. In fact, because of the high alert and strict vigil that such attacks are averted. Moreever, sustained efforts in improving the standards of safety and security would not necessarily guarantee that in future, there will be no attacks mounted on all vital installations in the city of Mumbai. In fact, the recent developments denote that on several occasions and particularly when there are such incidents in the neighbouring countries, an alert is sounded, cautioning all concerned, by the Intelligence Agencies in India. They alert everybody, including parties like the petitioner and request them to take additional protective and safety measures. They place the installations like the petitioner in high risk zone. Additional forces are deployed and we see their presence round the clock. In fact, the concerns expressed by the petitioner have not been addressed by the authorities. We cannot be unmindful of the fact that despite high level meetings convened, no comprehensive policy measures are taken. It is left to the petitioner to upgrade its safety measures. It is left to the petitioner to then deploy additional security officials. It is only left to the petitioner then to strengthen its boundaries and compound walls. However, this is an individual endeavor. A comprehensive action plan has to be put in place. That is not only by the planning authority and Ministry, but, equally by the Central Government and Central Industrial Security Forces and agencies like the same. They have to sit together and draw up a contingency and security plan. We hope and trust that it would be done expeditiously. 25. In making the observations the High Court completely lost sight of the fact that a building was already in existence. The residents have been vacated for construction of a new stronger and better building. Only a few additional floors were being added, which did not contravene any Rules or Regulation. 26. In our considered opinion, the High Court patently erred in arriving at its effective finding that permission for reconstruction could even be refused in the absence of any law, rule or regulation demarcating a buffer zone around a refinery. Regulation 16 of the DC 27. Regulations of 1991 pertaining to the construction of buildings is extracted hereinbelow for convenience:- 16. Requirements of sites – No land shall be used as a site for the construction of buildings - (a) if the Commissioner considers that the site is insanitary or that it is dangerous to construct a building on it or no water supply is likely to be available within a reasonable period of time. (b)-(d) * * * (e) If the use of the said site is for a purpose which in the Commissioners opinion may be a source of danger to the health and safety of the inhabitants of the neighborhood. (f)-(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. 28. The said Rule provides that if the Commissioner considers that the site is insanitary or it is dangerous to construct a building on it or water supply would not be available within a reasonable period of time, the land is not to be used as a site for construction of building. The Commissioner may also prevent the use of land as a site for construction, if the use of the said site is for a purpose which might in the Commissioners opinion be a source of danger to the health and safety of the inhabitants of the neighbourhood. To cite an example land may not be used for a purpose which is likely to cause environmental pollution. Permission to construct may be refused on land which is not fit for construction, such as swampy or low lying land. The Commissioner might even disallow the use of land for construction of buildings if the proposed construction is likely to cause damage or have deleterious impact on or is against urban aesthetics or endanger environment or ecology and/or historical/architectural/aesthetical buildings and precincts or is not in the public interest. It is for the Commissioner to take a call taking into account relevant factors. It is not for the High court, exercising jurisdiction under Article 226 of the Constitution of India to sit in appeal over the decision taken by the Municipal Commissioner. 29. In exercise of jurisdiction under Article 226 of the Constitution of India, the High Court is only to examine whether the Municipal Commissioner acted within the limits of his jurisdiction and examine whether there was any such legal infirmity in the decision making process which vitiated the decision. 30. In this case, the High Court has in effect and substance sat in appeal over the decision of the Municipal Commissioner. The Municipal Commissioner took note of the existence of buildings in the vicinity and the existence of higher buildings at a lesser distance from the refinery. The Municipal Commissioner rightly took note of the fact that the building was being redeveloped. It was not a case of new construction. 31. At the cost of repetition, it is reiterated that in the absence of any law, Rules or Regulations which prohibited the construction of a seven storeyed building at the site in question, the descretion of the Municipal Commissioner was not liable to be interfered with.

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

Explanation:
1[ds]19. There can be no doubt, as observed by the High Court, that natural calamities come uninvited. There are possibilities of cyclones, heavy rainfalls, floods, mudslides, landslides and the like. However, the connection between reconstruction of a dilapidated building that had been in existence and the possibility of natural calamities is difficult to perceive.20. There can also be no doubt that a refinery is not to be compared with other establishments. A refinery has to be protected. However, when there is no law which provides for a buffer zone between a refinery and other constructions, it was rather harsh to comment that the Commissioner had been wholly oblivious to the security and safety concerns of the RespondentBPCL, more so when the Municipal Commissioner had given direction for round the clock security, police verification of prospective flat buyers, etc.21. It is rather surprising that the High Court should have taken exception in the impugned judgment and order to the fact that the Municipal Commissioner had issued a stop work order but later passed the impugned order.22. The High Court appears to have overlooked the note of the Executive Engineer concerned and the advice to issue a stop work order at the risk of the Respondent-BPCL of the costs and consequences of the stop work order. It is patently obvious that the stop work order was a temporary measure pending further consideration of the objection raised by the Respondent-BPCL to the reconstruction of the building. If anyone were to be aggrieved by the stop work order, it was really the appellants and/or the flat owners temporarily shifted elsewhere, and not any one else.23. There can be no doubt that the security of the refinery is of paramount consideration. However, in the absence of any law which provides for a buffer zone between a refinery and a residential building as observed hereinabove, the owner of land cannot be prevented from the right to utilize the land effectively including the right to carry out redevelopment and/or reconstruction in accordance with law and the Rules and Regulations with regard to the construction of buildings.24. The High Court took note of the provisions of the Maharashtra Regional Town Planning Act, 1966, hereinafter referred to as the MRTP Act and in particular, Chapter III thereof, titled Development Plan. Unfortunately, the MRTP Act does not contain any specific provision which prohibits or even restricts the construction of a building in the vicinity of a refinery. The Development Control Regulations for Greater Mumbai, framed under Section 22 clause(m) of the MRTP Act, requires measures of safety and public interest to be taken into consideration. There cannot be any question of haphazard constructions or control free development. However, in the impugned judgment and order there is no specific finding of contravention by the Appellants of any particular statutory provision or of any particular Rule or Regulation in redevelopment of the building in question.25. In making the observations the High Court completely lost sight of the fact that a building was already in existence. The residents have been vacated for construction of a new stronger and better building. Only a few additional floors were being added, which did not contravene any Rules or Regulation.26. In our considered opinion, the High Court patently erred in arriving at its effective finding that permission for reconstruction could even be refused in the absence of any law, rule or regulation demarcating a buffer zone around a refinery.29. In exercise of jurisdiction under Article 226 of the Constitution of India, the High Court is only to examine whether the Municipal Commissioner acted within the limits of his jurisdiction and examine whether there was any such legal infirmity in the decision making process which vitiated the decision.30. In this case, the High Court has in effect and substance sat in appeal over the decision of the Municipal Commissioner. The Municipal Commissioner took note of the existence of buildings in the vicinity and the existence of higher buildings at a lesser distance from the refinery. The Municipal Commissioner rightly took note of the fact that the building was being redeveloped. It was not a case of new construction.31. At the cost of repetition, it is reiterated that in the absence of any law, Rules or Regulations which prohibited the construction of a seven storeyed building at the site in question, the descretion of the Municipal Commissioner was not liable to be interfered with.