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

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 Industrial Zone (I-3 Zone). In 2005, 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 theland from Ahmedabad Printing and Calico Mills Company Ltd. for construction of storage tanks.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 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 to the Maharashtra Pollution Control Board (MPCB) for grant of environmental clearance. Thereupon, MPCB issued notice dated 19.6.2006 and invited objections against the proposed grant of environmental clearance to theproject. 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 theland 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 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 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 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 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 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 HPCL officers was situated on North-East side of theplot, 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 theapplication was pending, respondent No.1 addressed letters dated 26.10.2007 and 3.6.2008 to the State Government raising objections against the proposal of M/s. Metal Box Ltd. and M/s. 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 of NOC for construction of tenements meant for project affected persons under the Slum Re-development Scheme under Clause 33(10) of Development Control Regulations (for short,) .8. By letter dated 25.7.2008, the Corporation informed the 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 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 theplot under category 8 (b) of EIA notification 2006 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 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 followingThe land which is the subject matter of dispute belonged to Mafatlal Group.entered into M.O.U. with Petitioner No. 1 to sell the land for housing of thestaff 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 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 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 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 issued to the 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 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 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 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.

Reasoning:
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.