Mohankumar Jaigopal Arora Vs the Municipal Corporation of the City of Thane and Anr.

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mgj

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 Writ Petition No. 710 of 2008

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 Mohankumar Jaigopal Arora ..Petitioner

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vs.

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 1. The Municipal Corporation
 of the City of Thane and anr. ..Respondents

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 Shri V.B.Naik i/b M/s Dhruv Liladhar and Co. for
 petitioner.

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 Shri R.S.Apte for respondent no.1

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 Shri C.R.Sonawane, A.G.P. for respondent no.2.

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CORAM: J.N.PATEL &
S.J.KATHAWALLA JJ.
 7th October, 2008

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ORAL JUIDGMENT:(Per S.J.KATHAWALLA J.).

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 1. Heard the learned Advocates appearing for the
 parties.

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 2. Rule. Rule made returnable forthwith. Learned
 Advocates for the respondents waive service. By
 consent, Rule taken up for hearing.

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 3. The petitioner is the owner of the land bearing

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 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.

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 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

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 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

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 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.

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 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.

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 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

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 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.

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 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

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 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.

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 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:

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 "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."

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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.

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 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.

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 10. Rule made absolute in the above terms. No

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 order as to costs.

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

Mohankumar Jaigopal Arora v. the Municipal Corporation of the City of Thane and Anr.

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Mohankumar Jaigopal Arora v. the Municipal Corporation of the City of Thane and Anr.

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