Bombay High Court High Court

Mohankumar Jaigopal Arora vs The Municipal Corporation on 7 October, 2008

Bombay High Court
Mohankumar Jaigopal Arora vs The Municipal Corporation on 7 October, 2008
Bench: J.N. Patel, S. J. Kathawalla
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                 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 &
S.J.KATHAWALLA JJ.

7th October, 2008

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

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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

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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

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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

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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

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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

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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

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order as to costs.

(S.J.KATHAWALLA J.) (J.N.PATEL J.)

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