# 17 S.C.R. 447 OSWAL AGRO MILLS LTD v. HINDUSTAN PETROLEUM CORPORATION LTD. AND OTHERS

- **Citation:** [2013] 17 S.C.R. 447
- **Court:** Supreme Court of India
- **Decided:** 2013-12-10
- **Case number:** Civil Appeal No.10933 of 2013
- **Bench:** G.S. Singhvi, H.L. Gokhale, Ranjana Prakash Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/17-s-c-r-447-oswal-agro-mills-ltd-v-hindustan-petroleum-corporation-ltd-and-28787
- **Pages:** 49

## Headnote

A
B
Town Planning -
Maharashtra Regional and Town
C
Planning Act, 1966 - s. 37(1 AA) - Development Control
Regulations (OCR) for Greater Mumbai, 1991 - OCR
57(4)(c), 16 and 64 - Change of land user- Conversion from
industrial zone to residential/commercial zone - Proposed
construction of residential-cum-commercial complex of D
appellant in the vicinity of the Refinery run by respondent no. 1
- Objections to the construction, from point of view of the
safety and security of the refinery, and of the would-be
occupants of the housing complex, as well as their health -
High Court allowed writ petition filed by respondent no.1 and
E
quashed sanction accorded by the competent authority of the
Municipal Corporation of Greater Mumbai for change of user
and construction of residential and commercial complex and
directed the Municipal Commissioner to reconsider the
application of appellant keeping in view the objections raised
by the Police Department, Ministry of Petroleum, Ministry of
F
Environment and Intelligence Bureau and the Security Control
Regulations - Propriety - Held (per majority): Proper -
Respondent no. 1 could not be faulted for constructions
permitted by respondent no.2-Municipal Corporation - Merely
because some constructions were permitted at some distance
G
from the refinery of respondent no. 1, does not justify further
high-rise constructions in the vicinity - Two wrongs do not
make one right - Respondent no. 1 lodged their objections,
447
H
448
SUPREME COURT REPORTS [2013] 17 S.C.R.
A and Municipal Authorities were required to consider the same
but they did not - Public interest cannot be sacrificed at the
altar of commercial interests - Security threat clearly placed
on record, as also the possible danger to the health of the
occupants of the buildings already constructed and to be
B constructed as well - No fault found with the judgment of High
Court.
Dispute arose with respect to the proposed
construction of the residential-cum-commercial complex
of the appellant in the vicinity of the Refinery run by the
C first respondent Hindustan Petroleum Corporation Ltd.
('HPCL'). The area in question was earlier designated as
a Special Industrial Zone, and commercial-cum-residential
activities were not permitted therein. However,
subsequently, the appellant had been permitted the
D change of user (conversion from industrial zone to
residential/commercial zone) by the Municipal
Corporation of Greater Mumbai.
The High Court allowed the writ petition filed by
E respondent No.1-Hindustan Petroleum Corporation Ltd.
(HPCL) and quashed the sanction accorded by the
competent authority of the Municipal Corporation of
Greater Mumbai for change of user and construction of
residential and commercial complex and directed the
F Municipal Commissioner to reconsider the application
made by the appellant keeping in view the objections
raised by the Police Department, Ministry of Petroleum,
Ministry of Environment and Intelligence Bureau and the
Security Control Regulations issued by the State of
Maharashtra under Section 37 (1AA) of the Maharashtra
G Regional and Town Planning Act, 1966. Hence the
present appeal.
The principal submission on behalf of the appellant
was that they had been granted the change of user
H (conversion from industrial zone to residential/
OSWAL AGRO MILLS LTD. v. HINDUSTAN
449
PETROLEUM CORPORATION LTD.
commercial zone) by the Municipal Corporation of Gredter
A
Mumbai, under its permission, and since this permission
was as per OCR 57(4)(c) of the Development Control
Regulations (OCR) for Greater Mumbai, 1991 framed
under the Maharashtra Regional and Town Planning Act,
1966 which allowed such a change of user with the
B
previous approval of the Municipal Commissioner, it
should not be interfered with. The change of user was
defended by the Municipal Corporation also.
The first respondent, on the other hand, raised twofold contentions viz. that from the point of view of the
C
safety and security of the refinery, an

## Text

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(2013] 17 S.C.R. 447
OSWAL AGRO MILLS LTD.
v.
HINDUSTAN PETROLEUM CORPORATION LTD. AND
OTHERS
(Civil Appeal No.10933 of 2013)
DECEMBER 10, 2013
[G.S. SINGHVI, H.L. GOKHALE AND
RANJANA PRAKASH DESAI, JJ.]
A
B
Town Planning -
Maharashtra Regional and Town
C
Planning Act, 1966 - s. 37(1 AA) - Development Control
Regulations (OCR) for Greater Mumbai, 1991 - OCR
57(4)(c), 16 and 64 - Change of land user- Conversion from
industrial zone to residential/commercial zone - Proposed
construction of residential-cum-commercial complex of D
appellant in the vicinity of the Refinery run by respondent no. 1
- Objections to the construction, from point of view of the
safety and security of the refinery, and of the would-be
occupants of the housing complex, as well as their health -
High Court allowed writ petition filed by respondent no.1 and
E
quashed sanction accorded by the competent authority of the
Municipal Corporation of Greater Mumbai for change of user
and construction of residential and commercial complex and
directed the Municipal Commissioner to reconsider the
application of appellant keeping in view the objections raised
by the Police Department, Ministry of Petroleum, Ministry of
F
Environment and Intelligence Bureau and the Security Control
Regulations - Propriety - Held (per majority): Proper -
Respondent no. 1 could not be faulted for constructions
permitted by respondent no.2-Municipal Corporation - Merely
because some constructions were permitted at some distance
G
from the refinery of respondent no. 1, does not justify further
high-rise constructions in the vicinity - Two wrongs do not
make one right - Respondent no. 1 lodged their objections,
447
H
448
SUPREME COURT REPORTS [2013] 17 S.C.R.
A and Municipal Authorities were required to consider the same
but they did not - Public interest cannot be sacrificed at the
altar of commercial interests - Security threat clearly placed
on record, as also the possible danger to the health of the
occupants of the buildings already constructed and to be
B constructed as well - No fault found with the judgment of High
Court.
Dispute arose with respect to the proposed
construction of the residential-cum-commercial complex
of the appellant in the vicinity of the Refinery run by the
C first respondent Hindustan Petroleum Corporation Ltd.
('HPCL'). The area in question was earlier designated as
a Special Industrial Zone, and commercial-cum-residential
activities were not permitted therein. However,
subsequently, the appellant had been permitted the
D change of user (conversion from industrial zone to
residential/commercial zone) by the Municipal
Corporation of Greater Mumbai.
The High Court allowed the writ petition filed by
E respondent No.1-Hindustan Petroleum Corporation Ltd.
(HPCL) and quashed the sanction accorded by the
competent authority of the Municipal Corporation of
Greater Mumbai for change of user and construction of
residential and commercial complex and directed the
F Municipal Commissioner to reconsider the application
made by the appellant keeping in view the objections
raised by the Police Department, Ministry of Petroleum,
Ministry of Environment and Intelligence Bureau and the
Security Control Regulations issued by the State of
Maharashtra under Section 37 (1AA) of the Maharashtra
G Regional and Town Planning Act, 1966. Hence the
present appeal.
The principal submission on behalf of the appellant
was that they had been granted the change of user
H (conversion from industrial zone to residential/
OSWAL AGRO MILLS LTD. v. HINDUSTAN
449
PETROLEUM CORPORATION LTD.
commercial zone) by the Municipal Corporation of Gredter
A
Mumbai, under its permission, and since this permission
was as per OCR 57(4)(c) of the Development Control
Regulations (OCR) for Greater Mumbai, 1991 framed
under the Maharashtra Regional and Town Planning Act,
1966 which allowed such a change of user with the
B
previous approval of the Municipal Commissioner, it
should not be interfered with. The change of user was
defended by the Municipal Corporation also.
The first respondent, on the other hand, raised twofold contentions viz. that from the point of view of the
C
safety and security of the refinery, and of the occupants
who will be residing in this housing complex, as well as
their health, this development ought not to be permitted.
It was their submission that such a construction would
be contrary to law, apart from being potentially D
dangerous and, therefore, undesirable on both these
counts.
Dismissing the appeals per majority, the Court
HELD: Per Gokhale J. (for himself and Desai;· J. )
[Majority opinion]
1. The affidavit of Dr. Seema Garg, Vice President of
E
the appellant points out that on the southern side of the
refinery, the Gavanapada Village is located with a
F
population of about 7000 people. However, this is an old
village establishment and onil 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,
G
and on the western side, the.re are some shops and
hutments. HPCL ·cannot be held responsible for these
structures. In any case, 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
H
450
SUPREME COURT REPORTS [2013) 17 S.C.R.
A 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. However, because of the resistance of the fjrst
B respondent, the upper floors of these buildings are to be
allotted to the Police department. [Para 13] [488-G-H; 489A-B]
c
1.2. 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. Some other buildings are
coming up at a distance of about 800 meters from the
D refinery. 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
E justify any more high-rise constructions coming up in the
vicinity. [Para 13] [489-E-G]
2. When the refinery of the first respondent came up
in the year 1952, and the other vital installations of
F 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
G 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
H
0$WAL AGRO MILLS LTD. v. HINDUSTAN
451
PETROLEUM CORPORATION LTD.
dereliction of their responsibilities. Merely because some
A
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.
[Para 14] [490-A-D]
B
3. It is rather surprising that the Municipal
Corporation has also chosen to file an appeal against the
order of the High Court. This is on the background that
appellant had given an Indemnity Bond to the Municipal
Commissioner dated 7.1.2011. In view of this Indemnity
C
Bond, the Municipal Corporation had no reason to file any
appeal against the order of the High Court, and the same
is disapproved. [Para 15] [490-E-F; 491-F]
4. OCR 57 (4) (c) of the Development Control
D
Regulations (OCR) for Greater Mumbai, 1991 framed
under the Maharashtra Regional and Town Planning Act,
1966 was relied upon by the appellant and the Municipal
Corporation in defence of the change of user. This OCR
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 OCR 57(4)(c) could not be exercised as a
standalone power, when specific objections relatable to
OCR 16 had been raised. OCR No.16 falls in Part II of the
E
F
DC Regulation of 1991 containing 'General planning
requirements, Land uses and manner of development'.
Even OCR No.64 which gives the 'Discretionary powers'
G
to the Commissioner, does not permit him under subclause (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
H
452
SUPREME COURT REPORTS [2013] 17 S.C.R.
A coupled with the duty to give paramount importance to
safety. These provisions c,ast an obligation on the
rviunicipal Commissioner to take into consideration the
objections in this behalf. Maharashtra Regional and Town
Planning Act, 1966 being an Act to provide for planned
B development, the provisions of.the DCRs will have to be
read
purposively and
harmoniously, and
not
disjunctively. 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
C and not beyond the same. HPCL had lodged their
objections, and the Municipal authorities were required
to consi~er 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
D 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
E submissions of the Municipal Corporation and appellantOswal are clearly contrary to the regulations, and are
therefore rejected. Oswal and the Municipal Corporation
had contended that the Writ Petition was belated.
However, the 1.0.D was issued to Oswal on 11.11.2010,
F 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 co111ld not therefore be said
to have been filed belatedly. [Para 16] [493-D-H; 494-A-E]
G
5. 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 the issues when it directed the Municipal
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN
453
PETROLEUM CORPORATION LTD.
Commissioner to reconsider the application made by
A
Oswal after considering 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. The High Court. has also directed that the
B
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 addition,
the Municipal Commissioner is directed to consider the
issue of possible danger to the health of the occupants c
of the buildings already constructed, and those to be
constructed by the appellants. It is stated in the affidavit
of Vice-President of the appellant that HPCL is seeking
to make the property of Oswal sterile and unbuildable
, ~ithout acquiring the same. The parties can certainly
D
utilise the time now available for appropriate and fruitful
negotiations in this behalf. And, in any case, Oswal can
certainly use the land for an agro-industry or any
permissible industry. [Para 17] [494-G, H, A-D]
Per Singhvi, J. (Minority Opinion)
1.1. The High Court has not considered the issues
- of security and possible adverse impact on the health of
those who may occupy the buildings to be constructed
by the appellant due to existence of the refineries and
industries in the area in a correct perspective. A reading
E
F
of additional affidavit dated 12.12.2011 filed by Dr. Seema
Garg, Senior Vice-President of the appellant and
photographs annexed with it shows that large number of
multi-storied buildings have been constructed near the
G
refineries of respondent No.1 and BPCL and over
3,50,000 persons are living in those buildings. The
photographs marked 'Exhibit D' clearly demonstrate the
existence of several buildings in the vicinity of the
refineries of respondent No.1 and BPCL. These include
H
(
•
454
SUPREME COURT REPORTS [2013] 17 S.C.R.
A the colony of the officers and employees of respondent
No.1 which is at a distance of SO meters from BPCL
refinery. The photographs further show that Mono Rail is
being constructed at a distance of 18 meters from BPCL
• refinery. [Para 22) [478-F-H; 479-A]
B
1.2. The averments contained in the affidavit of Dr.
Seema Garg on the issue of existence of multi-storeyed
buildings in the vicinity of the refinery of respondent No.1
and BPCL remained substantially uncontroverted, but the
Division Bench of the High Court virtually ignored the
C same and allowed the writ petition of respondent No.1 by
relying upon the report of Intelligence Bureau and the
affidavit filed by the Assistant Commissioner of Police, a
reading whereof shows that the report as well as the
affidavit are not based on .any scientific study. It is
D extremely difficult, if not impossible, to visualise any
security threat from the buildings being constructed by
the appellant when no such threat is perceived from the
buildings already constructed in the close vicinity of the
two refineries. Gavanpada Village having a population of
E 7,000 is just adjacent to the. refinery. On East and North,
several buildings have been constructed at a distance of
18.53 meters to 130 meters. Lakhs of people are residing
in these buildings. R_espondent No.1 did not get any
scientific study conducted by experts to find out the
F effect of gases emanating from the refineries and other
indus'.rial units operating in the area on the health of the
people occupying the building. Not only this, the said
respondent did not explain as to how the security
persons who may occupy some of the buildings already
G constructed will not be affected by the pollution caused
due to operation of the refineries and industries. This
being the position, the bald assertions made on behalf
of respondent No.1, the report of the Intelligence Bureau
and affidavit filed by the Assistant Commissioner of
H Police on the issues of security threat and public health
OSWAL AGRO MILLS LTD. v. HINDUSTAN
455
PETROLEUM CORPORATION LTD.
could not have been relied upon for recording a finding
A
· that the buildings proposed to be constructed by the
appellant would pose security threat and adversely affect
the health of the prospective occupants of the buildings.
[Para 23] [479-B-H]
2. The omission on the part of respondent No.1 to
challenge the sanction/permission accorded by the
Corporation and other public authorities for construction
B
of other residential buildings·is inexplicable. If the
buildings proposed to be constructed by the appellant at
a distance of 800 meters from the refinery are considered
C
future security threat to the establishment of respondent
No.1, the buildings already constructed in the close·
vicinity of the refinery etc. would certainly pose greater
security threat. The solution found by the State and its
functionaries as also the officers of the Corporation, i.e.,
D
use of upper floors of the buildings for housing the
members of Police force and other security agencies can
equally be applied to the case of the appellant and there
is no rational reason to discriminate the appellant vis-avis others, who have already constructed the buildings.
Similarly, the plea of respondent No.1 that the operation
of refineries would adversely affect the health of the
occupants of the buildings proposed to be constructed
by the appellant will be equally relevant for the occupants
of the buildings already constructed. Respondent No.1
E
F
has not placed any report of the experts to prove that the
residents of the buildings already constructed have
become prone to various kinds of diseases and,
therefore, it is opposing the construction of new
buildings which may be occupied by the members of G
public. Therefore, this objection cannot be pressed into
service for restraining the appellant from constructing
the buildings. [Para 24] [480-A-F]
3. The impugned order is set aside and the matter is
remitted to the High Court for deciding the writ petition
H
456
SUPREME COURT REPORTS [2013) 17 S.C.R.
A of respondent No.1 afresh after considering the material
produced by the parties on the issues of security threat
and possible danger to the health of the occupants of the
buildings already constructed and those who may
occupy the buildings to be constructed by.the appellant.
B [Para 25) [480-F, G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10933 of 2013.
From the Judgment and Order dated 12.04.2012 of the
C High Court of Bombay in WP No. 1973 of 2011 .•
WITH
C.A. No. 10934 of 2013
D
Dushyant A. Dave, Rakesh Tiku, Shekhar Naphade, Pallav
. Shishodia, H.N. Salve, Rakesh Dwivedi, Nimay Dave, Saleem
Hallan, Suh ail Malik,. Sanjay Kumar, Manjusha Wadhwa,
Bhargava V. Desai .. Shreyas Mehrotra, J. J. Xavier, Sanjay
Kapur, Ashmi Mohan, Devan Khanna, Shubhra Kapur, Sanjay
E V. Kharde for the Appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
F
2. These appeals are directed against order dated
12.4.2012 by which the Division Bench of the Bombay High
Court allowed the writ petition filed by respondent No.1Hindustan Petroleum Corporation Ltd. (HPCI,.) and quashed the
sanction accorded by the competent authority of the Municipal
G Corporation of Greater Mumbai (for short, 'the Corporation') for
change of user and construction of residential and commercial
complex on' land bearing CTS Nos. 381 and 381/1. to 22,
Village Anik, Taluk Chembur, MSD, Mumbai and directed the
Municipal Commissioner to reconsider the application made
H by Oswal Agro Mills Ltd. (hereinafter described as "the
OSWAL AGRO MILLS LTD. v. HINDUSTAN
457
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
appellant") keeping in view the objections raised by the Police
A
Department, Ministry of Petroleum, Ministry of Environment and
Intelligence Bureau and the Security Control Regulations issued
by the State of Maharashtra under Section 37 (1AA) of the
Maharashtra Regional and Town Planning Act, 1966 (for short,
'the 1966 Act').
B
· 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 lndustriql Zone (1-3.Zone). In 2005,
C
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 the appellant's land from Ahmedabad
Printing and Calico Mills Company Ltd. for construction of
storage tanks.
D
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
E
provision for change of land use and that change of user was
within the jurisdiction of the Planning Authority.
F
5. The appellant also made an application tB 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 ch;iarance to the appellant's project.
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 the appellant's
G
land 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
H
458
SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B 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
c 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
D 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
E 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
HPC1- officers was situated on North-East side of the
F appellant's plot, 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 the appellant's application was pending,
G respondent No.1 addressed letters dated 26.10.2007 and
3.6.2008 to the State Government raising objections against
the proposal of Mis. Metal Box Ltd. and Mis. 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
H
OSWAL AGRO MILLS LTD. v. HINDUSTAN
459
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
of NOC for construction of tenements meant for project affected
A
persons under the Slum Re-development Scheme under
Clause 33(10) of Development Control Regulations (for short,
"DC Regulations") .
8. By letter dated 25.7.2008, the Corporation informe,d 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).
B
9. Vide letter dated 21.10.2008, the Ministry of C
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 the
appellant's plot under category 8 (b) of EIA notification 2006
D
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
following reasons:
E
F
"2. The land which is the subject matter of dispute belonged
to Mafatlal Group. Mafatlal's en~ered into M.O.U. with
Petitioner No. 1 to sell the land for housing of the
G
Petitioner's staff 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
H
A
B
c
D
E
F
G
H
460
SUPREME COURT REPORTS [2013] 17 S.C.R.
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 issuea 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.
OSWAL AGRO MILLS LTD. v. HINDUSTAN
461
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
4. The main contention urged on behalf of the Petitioners
A
has been that while making alterations in the D.P. Plan,
the threat perception to the refinery of the Petitioners ought
to have been taken into consideration and that due notice
was not given to them. In the instant case, as may be noted,
the plan as notified in the year 1992 itself showed that the
B
land was reserved for housing of the staff of the Petitioner.
This has now been changed for S.R.A. and other purposes
which are residential. Therefore, the land since the year
1992 was reserved for residence. The Petitioner in the
year 1992 did not raise any objection to the land which was c
reserved for residence and on the contrary they wanted the
land for housing their staff. The correspondence further
indicates that the construction activities has commented
from the year 1999-2000, though for some time in view of
C.R.Z. violation that could not be proceeded with.
D
5. Further from the material before us, it is clear that in the
vicinity of the Petitioner's project, there are other
constructions which are existing including residential
buildings. Eversmile has commenced construction of
buildings under .S.R.A. project. The Petitioners allowed the
E
said construction to come up ·by maintaining silence for
long period of time. They have neither purchased the land
nor acquired it. Considering the fact that there are already
other buildings and as the respondent developers have
. commenced construction by spending large amount of
F
money, in our opinion, the contention of the Petitioners that
on account of "security risk" the respondent should be
restrained at the interim stage from constructing on the
land on facts here cannot be granted. The delay must be
held against the Petitioners, as also the fact that since
G
1992, the land has been reserved for housing. Though we
have granted rule that by itself cannot result in granting
interim relief, which must be considered on the basis of
well known principles of grant of interim relief.
H
462
SUPREME COURT REPORTS (2013] 17 S.C.R.
A
6. On behalf of the Respondents, their counsel had sought
to argue that the Petition itself ought not be be adrnitted and
had relied on a large number ·af·judgements fricluding the
judgment of this court in the case of BEST Workers Union Vs.
State of Maharashtra 20085 All M.R. 848. Considering the
B contentions advanced based on the D.C. Regulations which
though were also under consideration in the case of BEST
Workers Union (supra), we have admitted the Petition.
However, as noted earlier the gross delay and the fact that
Respondent Builders have invested large amounts on the
c project which is being constructed under the S.R.A. Project,
would be a relevant fact not to exercise discretion in favour of
the Petitioner."
11. After grant of environmental clearance, respondent
No.1 sent letters dated 14.1.2009 and 23.2.2009 to Deputy
D Director, Town Planning reiterating its objection to the
construction of buildings by the appellant. On 27.2.2009, the
State Government issued notice in the light of the
recommendation made by Upa Lokayukta to prepare Security
Control Rules and accepted the report of the Expert Committee
E for framing Special Regulations for safety of the buildings from
terrorist attack, the requirement for electrical and electronic
system, fire, etc. Thereafter, the State Government issued
instructions vide letter dated 21.3.2009 addressed to the
Municipal Commissioner for implementing the Security
F . Regulations.
12. In view of the communications sent by the State
Government, respondent No.1 sent letter dated 5.5.2009 to the
Chief Secretary to highlight the security threat to its refinery due
G to the SRA Scheme and requested that 56 SRA buildings be
acquired for housing police personnel as has been done in the
case of SRA buildings constructed near the BPCL refinery.
13. By an order dated 1.9.2009, the Municipal
Commissioner accorded sanction for change of user of the
H appellant's plot in the light of Regulation 57(4) (c) of the DC
OSWAL AGRO MILLS LTD. v. HINDUSTAN
463
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
Regulations subject to the requirement of obtaining NOCs from
different authorities. After about two months, appellant'
submitted proposal for amalgamation I sub-division of the plot.
The Corporation considered the proposal and approved the
same vide letter dated 10.6.2010 subject to the additional
conditions including the one that amenity space shall be handed
over to the Corporation. On 11.11.2010, the Corporation issued
Intimation of Disapproval to the appellant and on 28.12.2010,
A
B
the Corporation granted permission to the appellant for
handling, storage, transportation and disposal of waste
generated due to construction of building. Subsequently, the c
Corporation vide its letter dated 7.1.2011 issued NOC to the
appellant regarding fire protection and fire fighting requirements
in respect of the proposed construction of high rise residential
building No.9. The Corporation also granted commencement
certificate to the appellant.
14. In the meeting held on 5.2.2011 under the
Chairmanship of the Principal Secretary, Home Department,
representatives of respondent No.1 and BPCL protested
against the permission granted for construction by the appellant
D
and others on the property adjacent to the refinery of HPCL and
E
pleaded that construction activity should be immediately halted.
It was also suggested that a distance of 500 metres as buffer
zone was required to be maintained. Thereafter, the Principal
Secretary asked the representatives of respondent No.1 and
BPCL to make necessary representation to the Brihanmumbai
F
Mahanagar Palika to maintain the distance. The Principal
Secretary also directed the representative of respondent No.1
to inform the Urban Development Department within 15 days
whether the company was willing to take possession of a
portion of 500 metres from the neighboring property for buffer
G
zone and plant trees, etc. so that the State Government could
take an appropriate decision. The same was also conveyed
to respondent No.1 vide letter dated 15.2.2011.
15. Having failed to convince the State Government and
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464
SUPREME COURT REPORTS [2013] 17 S.C.R.
A the Corporation to stop construction of buildings on the land
purchased by the appellant, respondent No.1 filed Writ Petition
No.1973/2011 for quashing all approvals and permissions
granted to the appellant and for restraining the official
respondents from granting further permissions or approvals or
B renewing the approvals I permissions already granted.
Respondent No.1 heavily relied upon the report prepared by
the Intelligence Bureau highlighting the threat perception to the
refinery and its installations. Respondent No.1 also challenged
validity of Regulation 57(4)(c) of the DC Regulations in terms
c of which the Commissioner of the Corporation can permit any
open land in special industrial zone to be used for any of the
permissible users in residential zone.
16. The appellant, the Principal Secretary, Urban
Development and the Deputy Director, Town Planning, BMC
D filed affidavits to oppose the writ petition. In the affidavit filed
on behalf of the MPCB, it was pleaded that the clearance was
granted after due consideration of the record in the light of the
clearance granted by the Ministry of Environment and Forests
(MoEF), Government of India. Secretary, Department of
E Environment,
Maharashtra
also
referred
to
the
recommendations of the State Level Environment Impact
Assessment Authority and claimed that in view of the clearance
accorded by several agencies, permission sought by the
appellant was granted. Labour Commissioner filed an affidavit
F stating that he was only concerned with the payment of dues
of the workers and in the report submitted by him it was made
clear that the dues of workers have already been paid. The
Additional Director, MoEF filed affidavit to the effect that State
Expert Appraisal Committee has accorded environmental
G clearance in terms of EIA Notification 2011. In a separate
affidavit, Principal Secretary, Home Department pointed out
that HPCL refinery was Category 'A' vital installation and had
been declared as prohibited area under the Official Secrets
Act. The Principal Secretary also submitted that construction
H of high rise building on the plot in question will be a threat to
•
OSWAL AGRO MILLS LTD. v. HINDUSTAN
465
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.)
the installation of respondent No.1. In an additional affidavit filed
A
on behalf of the appellant, its Senior Vice-President Dr. Seema
Garg averred that large number of buildings have already been
constructed in the vicinity of the plot purchased by respondent
No.1. Paragraphs 9 to 18 of the affidavit of Dr. Seema Garg
which have bearing on the decision of these appeals read as
B
under:
"9. I say that Development Control Regulations 1991
(Regulation 29) provides that in case of change of user
from Industrial to Residential/Commercial zone, the
Corporation can insist for maintaining distance of 52
C
metres between the proposed development and the
obnoxious or hazardous industries. I say that plans provide
for a safe distance of far more than 52 metres between·
the boundary wall of the said land and the boundary wall
of the petitioner's existing refinery.
D
10. I submit that the apprehensions sought to be
expressed by the Petitioners in the Petition to the effect
that the proximity of the said land to the Petitioners' refinery
causes an environmental and security threat is misplaced
E
and unwarranted. This would be apparent if the
neighborhood of the Petitioners' refinery is considered.
The Petitioners' refinery is surrounded by dense human
habitation i.e. more than 350,000 occupants & a floating
population of approx 50,000. This has been stated by the
F
Asst. Engr. (DP) ES of the BMC in the affidavit filed in Writ
Petition No. 1891 of 2007. The affidavit of the Assistant
Engineering (D.P.) E.S. Mumbai filed in Writ Petition No.
1891 of 2007 by BPCL was to the effect that:
" ... population in the locality is estimated to be 3.5
G
lakhs. In addition, there is estimated to be floating
population of approximately 50,000 persons
comprising of employees and visitors. It is pertinent
that touching the refinery of Hindustan Petroleum
Corporation Ltd., 7 ,500 flats have been constructed
H
\
466
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS (2013] 17 S.C.R.
with more than 7,500 persons residing there. The
situation has not caused any breach of or threat to
the security of Hindustan Petroleum's refinery."
11. Moreover there are a number of multistoried/high rise
buildings which are situated much closer to the Petitioners
refinery. The distance between the boundary wall of the
Petitioners refinery and the said land is approx 4 70 mtrs.
Moreover as stated earlier the Respondent No.20's actual
construction site is an additional 400-500 mtrs away from
its plot boundary: i.e. the aggregate distance from the
Refinery wall to the said buildings is 800-900 mtrs. As
compared to this, there are multistoried buildings and even
a high rise situated much closer to the Petitioners refinery.
Some of such buildings/habitations which surround the
Petitioners' refinery are set out hereunder:
On the South:At the distance of zero metres. /i.e.
almost adjoining the refinery there exist a Gavanpada
village with a population of about 7000 people.
On the East: a)At the distance of 18.53 metres,
there exist slums; namely Paryag Nagar and Prakash
Nagar with a population of approximately 5000 people.
b)
At the distance of about 125 mtrs., situated on
raised ground/a hill, is the residential high rise tower
of 14 storey constructed on the Metal Box plot. This
building is almost complete and ready for
occupation.
On the North: a)At the distance of 30 to 130 mtrs.
there are more th.l'ln 50 multi storey buildings
constructed for 61uiin Rehabilitation by RNA SRA
Scheme and Videocon SRA Scheme consisting
more than 6000 housing units and hundreds of
shops.
b)
At the distance of 50 mtrs. there exists Vishnunagar
Slum having a population approximately of 10,000
OSWAL AGRO MILLS LTD. v. HINDUSTAN
467
PETROLEUM CORPORATION LTD. [G.S. SINGHVI, J.]
people.
A
c)
At the distance of approx. 400 metres, there exists
Bharat Nagar slum having a population of approx.
20000 people.
On the West: Across the road and opposite the
main Gate of Refinery are the shops and hutments
with a population of about 200 people.
B
Hereto annexed and marked Exhibit "A" is the satellite map
showing the location of the Petitioners refinery and its
C
surroundings. Some of those developments have taken
place as recently as 2009-2010. Also, annexed hereto as
Exhibits "B-1" to "B-13'.' are some of the photographs
clearly showing the extent of residential development and
the surroundings of the Petitioners' refinery.
D
12.