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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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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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