The discretion of the Municipal Commissioner in granting permission for reconstruction in the absence of specific provisions prohibiting construction near a refinery.

JUDGMENT

Indira Banerjee, J. - Leave granted.

2. This appeal is against a judgment and order dated 25.04.2019 passed by the Division Bench of the High Court of Judicature at Bombay, allowing Writ Petition No. 1515 of 2017 filed by the Respondent No.1-Bharat Petroleum Corporation Limited and quashing an order passed by the Municipal Commissioner, Municipal Corporation of Greater Mumbai, granting permission for redevelopment of a building to M/s. Satwaratna Cooperative Housing Society Limited being the Appellant No. 1 before us, and hereinafter referred to as the Appellant-Society, subject to the conditions specified in the said order.

3. Sometime in 1972-73, a residential building consisting of Ground + three floors was constructed on Survey No. 103, Hissa No. 15 bearing CTS No. 35 and 39 at Village Mahul, Taluka Chembur, Mumbai Suburburn District, Mumbai. As the building was over 40 years old and in a dilapidated condition, the Appellant-Society obtained consent of all its members and appointed the second appellant, i.e., M/s. Kishraj Developers, hereinafter referred to as the Appellant-Developer to redevelop the building. A registered Development Agreement was accordingly executed between the Appellant-Society and Appellant-Developer.

4. On or about 9th December, 2014, the Appellant-Developer approached the Municipal Corporation of Greater Mumbai with a proposal for redevelopment of the building in question. The reconstructed building was to comprise a stilt 7 upper floors.

5. By a communication No. CE/6794/BPES/AM dated 25.06.2015, the Municipal Corporation of Greater Mumbai disapproved the proposal as submitted by the Appellant-Developer. The Appellant-Developer was, however, given permission to reconstruct the building subject to compliance of the conditions stipulated in the communication. Upon receipt of the communication, the Appellant-Developer demolished the existing building. The 12 families who were members of the Appellant-Society were provided with alternative accommodation at monthly rent of Rs. 18,000/- per month with 10% increase each year.

6. On 05.09.2015, after the occupants of the building vacated, the Municipal Corporation of Greater Mumbai granted commencement certificate to the Appellant-Developer enabling the Appellant-Developer to commence construction of the building that was being redeveloped, upto the plinth level.

7. On 29.10.2015, the respondent No.1, Bharat Petroleum Corporation Limited, hereinafter referred to as Respondent-BPCL sent a lawyers notice to the Municipal Corporation of Greater Mumbai, contending that the proposed re-development of the building in question would jeoparidise the safety of the refinery of Respondent-BPCL as well as the safety of the inhabitants of the locality.

8. In the meanwhile, after grant of commencement certificate, the Appellant-Developer commenced construction, which was carried out upto the plinth level. Upon completion of construction upto the plinth level, the Appellant-Developer through its Architect approached the Municipal Corporation of Greater Mumbai, inter alia, seeking grant of completion certificate.

9. On or about 02.03.2016, an area admeasuring 362.16 sq. meters being the set back area in respect of the building under reconstruction was handed over to the Municipal Corporation of Greater Mumbai for which a receipt was duly granted to the appellants.

10. Pursuant to the objection raised by the Respondent No.1-BPCL, the concerned Executive Engineer of the Municipal Corporation of Greater Mumbai prepared an exhaustive note pointing out that there were existing buildings in the vicinity of the refinery of

11. Respondent-BPCL, which were higher than the building under reconstruction.

12. In the said note, it was pointed out that the proposed redeveloped building was to have a height of 23.90 sq. meters. In other words, it would only be a low rise building. Further more, the Appellant-Developer had given an undertaking of Police verification of the prospective buyer