Judgment wp481.98
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 481 OF 1998
WITH
WRIT PETITION NO. 996 OF 1997.
..........
WRIT PETITION No. 481 OF 1998.
1. Vithaldas Hirji Thakkar.
2. Praveen Yadaorao Deshpande.
3. Bhaurao sityarampant Birewar
4. Ramesh Madhao Joshi.
5. Laxmikant Yadaorao Deshpande.
6. Santosh Jayant Godbole.
7. Bhalchandra Sitaram Fadnaik.
8. Ambashankar keshaolal Devashri.
9. Ratnakar Ganesh Kale.
10. S. Rajani Wasudeo Vishwekar.
(Petitioner Nos. 1 to 6, 8 and 10
deleted as per Courts order dt. 23.11.12)
All residing at Tilak Nagar, Nagpur. ....PETITIONERS.
VERSUS
1. Rao S. Wankhede,
Plot no.3, Tilak Nagar, Nagpur.
L.Rs. Of Respondent No.1.
1[a] Shakun wd/o Rao. S. Wankhede,
Aged about 70 years, Plot No.3, Tilak
Nagar, Nagpur.
1[b] Rajesh s/o Rao. S. Wankhede,
Aged about 35 years, Plot No.3, Tilak
Nagar, Nagpur.
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1[c] Umesh s/o Rao. S. Wankhede,
Aged about 32 years, Plot No.3, Tilak
Nagar, Nagpur.
1[d] Darshika w/o Deepak Patil,
Aged about 46 years, Plot No.11-A,
Jotika, Daughter,
Kasturba Layout, Behind NIT
Swiming Pool, Nagpur-10.
2. Ranjana daughter of Rao Wankhede,
Plot no.3, Tilak Nagar, Nagpur.
3. Chief Controller of Explosives,
Old High Court Building,
Civil Lines, Nagpur.
4. Nagpur Improvement Trust,
through its Chairman, Sadar, Nagpur.
5. Union of India,
Environment and Pollution Department,
New Delhi.
6. Nagpur Municipal Corporation,
department of Health, through Assistant
Health Officer, Civil Lines, Nagpur. ....RESPONDENTS
.
WITH
WRIT PETITION No. 996 OF 1997.
1. Keshav s/o Ramrao Dandige,
(dead through L.Rs.)
1-a] Sumati wd/o Keshav Dandige,
Aged about 79 years, resident of
Ground Floor, Meghranjini apartment,
2-A, Tilak Nagar, Nagpur - 440 010.
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1-b] Seema Avinash Kshirsagar,
Aged about 59 years, resident of
1st Floor, Meghranjini apartment,
2-A, Tilak Nagar, Nagpur - 440 010.
1-c] Rekha Dilip Ghiya,
Aged about 55 years, resident of
Ganga Palace, 146, Baji Prabhu Nagar,
Nagpur. ....PETITIONERS.
VERSUS
1. Nagpur Improvement Trust,
through its Chairman,
Station, Road, Nagpur.
2. The Corporation of the City of
Nagpur, through its
Municipal Commissioner.
3. Station House Officer,
Police Station, Ambazari,
Nagpur.
3. Major Rao S. Wankhede,
Plot no.3, Tilak Nagar, Nagpur.
(since deceased)
[3-a] Shakun wd/o Rao. S. Wankhede,
Aged about 70 years, Plot No.3, Tilak
Nagar, Nagpur.
[3-b] Rajesh s/o Rao. S. Wankhede,
Aged about 35 years, Plot No.3, Tilak
Nagar, Nagpur.
[3-c] Umesh s/o Rao. S. Wankhede,
Aged about 32 years, Plot No.3, Tilak
Nagar, Nagpur.
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[3-d] Darshika w/o Deepak Patil,
Aged about 46 years, Plot No.11-A,
Jotika, Kasturba Layout, Behind NIT
Swiming Pool, Nagpur-10.
[3-e] Ranjana S Wankhede,
Aged about 43 years,
Plot no.3, Tilak Nagar, Nagpur.
4. Jyotika Gas and Domestic Appliances
through Miss Ranjana d/o Rao
Wankhede,
Plot no.3, Tilak Nagar,
Nagpur.
5. The Chief Controller of Explosives,
Old High Court Building, Nagpur.
6. Smt. Kamal wd/o Laxman Meshram,
Aged about 62 years, r/o. 372,
Gandhi Nagar, Nagpur. ....RESPONDENTS
.
-----------------------------------
Mr. A. Parchure with Mr. Deshpande and Mr. B.G. Kulkarni,
Advocates for Petitioner.
Mr. M.G. Bhangde with Mr. Tapadiya, Advocates for Respondent Nos.3 and
4 (W.P.No. 996/1997).
Shri R.S. Sundram, Advocate for Explosive Department.
Mr. S.M. Puranik, Advocate for Nagpur Improvement Trust.
Mr. J.B. Kasat, Advocate for Nagpur Municipal Corporation.
------------------------------------
CORAM : B. P. DHARMADHIKARI
AND ROHIT B. DEO, JJ.
Date of Reserving the Judgment : 03.08.2017 Date of Pronouncement : 05.09.2017 ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 5 JUDGMENT. (Per B.P. Dharmadhikari, J)
Petitioners in Writ Petition No. 996/1997, seek declaration that respondent no.4 Jyotica Gas and Domestic Appliances cannot be allowed to continue its storage godown of domestic gas cylinders on residential plot in residential area. Petitioners also pray for quashing of building permit for godown dated 21.03.1985, issued by the Nagpur Improvement Trust and licence dated 17.04.1985, issued by the Deputy Chief Controller, Explosives Department for the same. There is also a prayer to declare that provisions followed and procedure adopted by the Nagpur Improvement Trust, by Nagpur Municipal Corporation and by Chief Controller of Explosives, while granting building permit and building licence for storage of LPG cylinders is ultra vires to Constitution of India. Direction to respondent no.4 to shift its activity away from the residential area and an order restraining it from continuing the same in said area, is also sought for.
2. In Writ Petition No. 481/1998, the prayers are also on same lines and against very same agency. Both the matters are therefore, clubbed together for hearing.
3. Accordingly we have heard Shri Deshpande with Shri A. Parchure ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 6 and Shri B.G. Kulkarni, learned Counsel for the petitioners, Shri Puranik, learned Counsel for respondent Nagpur Improvement Trust, Shri Kasat, learned Counsel for respondent Nagpur Municipal Corporation and Shri Bhangde, learned Senior Counsel with Shri Tapadia, learned counsel for the concerned Gas Agency.
4. The location of godown i.e. Plot no.3 in Tilak Nagar is not in dispute. Petitioners are residents of that area. The gas agency is operating there since 1985. Respective counsel for petitioners state that plot no.3 is a residential plot in a residential locality, and therefore, no commercial activity can be carried out on it. They submit that all no objection certificates issued to gas agency are therefore, without jurisdiction. Nagpur Municipal Corporation sanctioned the godown plan on 21.03.1985 only because one such godown was already sanctioned near Chatrapati Chowk in Nagpur. They relied upon note dated 20.03.1985 in the file of Nagpur Improvement Trust to show that then it was observed that as per Zoning Regulations, the structure could have been sanctioned, but, then as it was to be used as LPG Godown, need to consult Planning department was felt. It is submitted that if width of the road is less than 15 meters, such construction is not allowed. Plot in Hindustan Colony at Chhatrapati Chowk, was a commercial plot abutting 15 meters wide road and hence, permission was ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 7 granted. Our attention is invited to reply filed by the Nagpur Improvement Trust to show that there as per Greater Nagpur Zoning Regulations, 1946 particularly clause No.7, such a user is not allowed. Building bye laws i.e. Development Control Rules as in force in 1990, are also relied upon to urge that vide clause 2.0.2(38) showroom for distribution and sale of LPG gas is, allowed, but, as per clause M-2.3 bulk storage of kerosene and bottled gas for domestic consumption can be permitted in residential area with shopline zone, if it is in independent building. In that event also, special permission is required. Petitioners state that here the activity has been commenced in 1985 and hence, it is contrary to law.
5. Development Control Rules, which have come into force in the year 2000 are again relied upon to urge that no such activity on plot no.3 can be tolerated. It is claimed that in 2000 DCR there is no provision for locating such godown even on 15 meter wide road. They claim that no trade and business involving any danger of fire or explosion can be allowed. It is added that the establishment does now have necessary fire safety arrangements.
6. Shri Puranik, learned counsel appearing for Nagpur Improvement Trust submits that it gave no objection because all the neighbours, including ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 8 the petitioners gave no objection and hence, the activity could come up in residential area. He invites attention to 1946 Zoning Regulations to urge that there Clause 7 permit such user. According to him, 1990 Building Control Rules (BCR) also allow it. The gas agency has necessary no objection certificate from explosives department and hence objection of petitioners is misconceived.
7. Shri Kasat, learned counsel appearing for respondent Nagpur Municipal Corporation submits that the Corporation has become Planning Authority for Tilak Nagar area on 27.02.2002, and building sanction was given already on 21.03.1985, by the Nagpur Improvement Trust. He also invites our attention to sketch of site to urge that it is practically an independent site/building, which does not have any connection with any residential quarter or portion.
8. Shri Bhangde, learned Senior Counsel points out that petitions as filed are not bonafide. Earlier friend of petitioners and neighbour by name Keshav Dandige had filed a Writ Petition No. 946/1997 for same reliefs (accompanying matter). When it became clear that Shri Dandige had given no objection for construction of godown, through other group of persons Writ Petition No. 481/1998 came to be instituted for same purpose. ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 :::
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9. He further points out that user started in 1985 and present petitions have been filed after more than 12 years thereafter, as such there is huge and unreasonable delay. He relies upon the judgment reported at (2010) 4 SCC 532 (Sawaran Lata and others .vrs. State of Haryana and others) (Paragraph no. 10) and (2015) 11 SCC 347 (Sai Kripa Mangal Karyalaya and others .vrs. Nagpur Municipal Corporation and others) (paragraph no.23) to urge that petitioners therefore cannot seek such a relief and grievance cannot be heard due to this delay or latches. He draws support from a judgment delivered by this Court in Public Interest Litigation No.47/2013 on 07.09.2016, particularly paragraph nos. 64, 69, 70, 75 to 80 thereof. He points out that building permission was granted on 21.03.1985, and structure was constructed in the year 1985 itself. He invites our attention to the no objection certificate given by Shri Keshav Dandige, which has been filed on record of Writ Petition No. 996/1997.
10. According to him, after 1985 till the filing of these Writ Petitions, there was no change in situation, and hence, grievance has been made with oblique motive. Inviting attention to Section 133 of Criminal Procedure Code he claims that if there was any noise pollution, remedy provided for therein ought to have been resorted to. He substantiates his submission by ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 10 inviting attention to order dated 21.07.2010 in Writ Petition No. 120/2009.
11. AIR 1973 SC 908 (State of Bihar .vrs. Deokaran Nenshi and another), (paragraph no.9) is relied upon by him to urge that this is not a matter where continuous cause is being pointed out. He submits that 1990 Building Control Rules enable user as gas godown and appendix to these Rules permits such user. He states that here the cylinders are stored in an independent premises and hence, objection raised is erroneous and misconceived. He argues that when this court was approached, Building Control Rules of 1990 were in force. He draws support from the additional reply filed by respondent nos. 1(A) to 1(D) and respondent no.2 in Writ Petition No. 481/1998 to urge that construction of godown and user thereof is permissible, as it is located in R-2 Zone on a road with width exceeding 15 meters. Note prepared by the Nagpur Municipal Corporation on 20.03.1985 in this respect is also relied upon by him.
12. While opposing Writ Petition No.996/1997, he states that petitioner there has not filed complete Appendix 'M' for perusal of this Court. To urge that in present circumstances, change in law is relevant and can be looked into. He draws support from 1991 Supp (1) SCC 367 (Sheshrao Jangluji Bagde .vrs. Bhaiyya Govindrao Karale and others) and (1999) 2 ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 11 SCC 543 (Mathew M. Thomas and others .vrs. Commissioner of Income Tax).
13. The Nagpur Improvement Trust is respondent no.6 in Writ Petition No. 481/1998. It has placed a map showing gas godown at Tilak Nagar, as document no.2 with its affidavit dated 26.07.2017. There the width of road reflected of gas godown is shown to be 12 meters. In site plan placed on record as Annexure-B along with the additional reply of respondent no.1A to 1D, width of this road is shown as 15.24 meters.
14. In a map placed on record along with return of said respondent, distance of structure of godown as such from other plots has also been shown. However, fact that plan was sanctioned on 21.03.1985 has not been disputed by any body.
15. 1946 Zoning Regulations of Nagpur Improvement Trust, known as Greater Nagpur Zoning Regulations, in Clause 7 state that selected non- conforming uses of residential nature may be a Garage, Petrol Filling Station, Hotels, Restaurant, Nursing Home, Charitable Home, Religious Building, Schools, Clubs and "other similar uses". Such non-confirming use has to be extended to residential use and having regard to the character of ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 12 neighbourhood, calculated to add to the amenities or welfare of the residents Phrase. "other similar uses" employed at the end of this regulation 7 is wide enough and may support such godown. But, then, no arguments have been advanced by the parties in this respect.
16. In preference thereto in 1985 after no objections from residents, including petitioner (in Writ Petition No. 996/1999, now deceased), building plan was sanctioned and permission was given to the gas agency. On 01.02.1990 Building Bye laws and DCR of Nagpur Improvement Trust came into force. As per bye-law no. M-2.3, in all independent premises/building as per clause [4], bulk storage of kerosene and bottled gas for domestic consumption with special written permission of the Authority, is allowed in R-2 Zone. As per Clause M-2.2.1, all residential plots abutting the road with width of 12 meters and above, the activity like repairing garage, flour mill, Battery charging and repairing, including show room for distribution and sale of L.P.G. and Coal fire shops are allowed. Thus, on the date when present writ petitions were filed, above mentioned building bye law and DCR which has come into force from 01.02.1990, supported the activity of gas agency which was already established & functioning.
17. Perusal of judgment in case of State of Bihar .vrs. Deokaran ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 13 Nenshi and another, (supra), particularly paragraph no.9 shows that the infringement there was complete on the owner failing to furnish the annual returns by specified day. The regulations do not contain a provision holding the owner or manager of the mine guilty of the offence, if he continues to carry on mine without furnishing the return or then the offence continues until requirement of regulation 3 is fulfilled. It has been held that Regulation no. 3 did not render a continued disobedience or non compliance, an offence. The Hon'ble Supreme Court has explained that as in a case of construction of wall in contravention of building rules, offence would be complete once and for all after the construction is over.
18. In Sawaran Lata and others .vrs. State of Haryana and others (supra), in Paragraph no. 10, the Hon'ble Supreme Court finds that when party does not approach court within reasonable time, judicial review is not possible at a belated stage. Judgment in case of Sai Kripa Mangal Karyalaya and others .vrs. Nagpur Municipal Corporation and others (supra), in paragraph no.23, reveals that long delay of eight years in filing the Writ Petition and absence of challenge to plan sanctioned by the Municipal Corporation, was held fatal. In Public Interest Litigation No. 47/2013 (Citizen Forum for Equality .vrs. The State of Maharashtra and others), in paragraphs mentioned supra, the Division Bench of this Court ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 14 has looked into the effect of delay at length. One of us (B.P. Dharmadhikari, J) is party to that judgment. In present facts, when petitioners are neighbours and with their express no objection the activity commenced or and continued for almost 12 years without they lodging any protest; there is all the more reason to conclude that such a belated challenge by them need not or can not be entertained.
19. The grievance in relation to noise pollution has not been seriously pressed and learned counsel for petitioners submitted that because of use of rubber and other cushioning material that nuisance is substantially reduced. However, the Division Bench of this Court in Writ Petition No.120/1999 (Dande Plots Mahila Kriti Simiti and another .vrs. Municipal Corporation of Amravati and others) on 21.07.2010 in case of noise pollution, found it appropriate to permit the petitioners to take recourse to Section 133 of Criminal Procedure Code. Here, as the petitioners have not approached immediately, it is apparent that if there is such nuisance again, they should also take recourse to remedy under Section 133 of Criminal Procedure Code.
20. We have already found that on the date of filing of the petitions, the activity was legally permissible in residential area. The petitioners have ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:11:35 ::: Judgment wp481.98 15 not countered the affidavits filed by the gas agency that its godown is on a road which is 15 meters or more in width. Relevant Zoning Regulations therefore allowed that activity after 01.02.1990, and it was / is legal on the date of filing these petitions. . Hence, question whether initial grant of such permission to gas agency in 1985 by taking shelter of similar permission granted in Chattrapati Chowk, is legal or valid, need not be gone into at this stage. Even in 1946 Regulations, no express bar to such activity is pointed out by the Petitioners. The delay and conduct of petitioners dis-entitle them to seek any writ from this Court.
21. We therefore, find no case made out warranting any intervention in the matter in extra ordinary jurisdiction. Writ Petitions are therefore, dismissed. Rule discharged. No cost.
JUDGE JUDGE
Rgd.
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