The latter part of the General Development Control Regulations has to be read ejusdem generis to the earlier part of that Regulation: Gujarat High Court
The residential use as per the meaning given under the regulations is kept in mind and as per the GDCR which permits public utility to be part of the residential zone which includes fueling stations, it cannot be said that the GDCR are contrary to the provisions of the statute as contended by the petitioner. This was said in the case of Farzanaben Alimamad Kasmani vs The District Collector Morbi [R/SPECIAL CIVIL APPLICATION NO. 11403 of 2020] by Mr. Justice Bhargav D. Karia in the High Court of Gujarat The facts of the case are that respondent No.6 started construction activity for establishing petrol pump and respondent   Nos.1 to 4   i.e. the Collector,   Deputy  Collector,   Morbi   Municipality, and Gujarat Pollution   Control Board granted requisite permissions as well as sanctioned the plan for construction. The petitioner, therefore, being aggrieved by the activity of establishing petrol pump in the residential  area   adjacent   to   the   house   of   the petitioner has preferred this petition The petitioner submitted that   Clause (xxiv)   of   Section   2   of the Gujarat Town   Planning and   Urban   Development   Act,   Act 1976   defines residence which includes use of human habitation of any land or building etc. Further, the discretion exercised by the   Municipality is in arbitrary manner because if the surrounding plots would have been open land it could have been exercised but when the surrounding plots are residence, it would cause threat to the life of the persons residing in the area.   The respondent submitted that permissions granted to respondent No.6 are legal and in accordance with the GDCR as well as the provisions of all applicable laws like Petroleum Act and   Rules and respondent authorities after complete investigation and inquiry have granted the permissions in exercise of their powers in a bona fide manner. It was further submitted that the petition has not been filed with clean hands as the petitioner has relied on the old GDCR to point out the defects in the permissions granted by the respondent authorities. The Court opined that “meaning of “residential use” under the Regulations is a restricted one and is incapable of being given a wide connotation. It means the use of any land or building or part thereof for human habitation and such other uses incidental to the residential use. The very language of Regulation 2(1)(k) of the Regulations clearly depicts the intent of the framers that the expression “residential use” is not to be understood in its wider sense, in fact, it would require strict construction because all other uses have been separately defined. The different kinds of uses, therefore, have to be understood only in terms of the explanation or meaning given to them under the Regulations. The expression “such other uses incidental to residential uses” in Regulation 2(1)(k) has to take its colour from the use of the building for human habitation”.
 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR SPECIAL CIVIL APPLICATION NO. 114020With CIVIL APPLICATIONNO. 20 In R SPECIAL CIVIL APPLICATION NO. 114020 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE BHARGAV D. KARIA ================================================================1 Whether Reporters of Local Papers may be allowed to see the judgment 2 To be referred to the Reporter or not 3 Whether their Lordships wish to see the fair copy of the judgment 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ================================================================FARZANABEN ALIMAMAD KASMANI VersusTHE DISTRICT COLLECTOR MORBI ===================================================================Appearance:MR Y N RAVANI(718) for the Petitioner(s) No. 1MR KANVA ANTANI AGPfor the Respondent(s) No. 1MR DEVANG VYAS(2794) for the Respondent(s) No. 2MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 3MR CHINTAN H DAVE(7193) for the Respondent(s) No. 4MR M I HAVA(348) with MR ANGAD VARMA for the Respondent(s) No. 5MR DEVEN PARIKH with MR S P MAJMUDAR(3456) for the Respondent(s) No. 6================================================================CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 07 05 2021 CAV JUDGMENT Order in Special Civil Application :Heard learned advocate Mr.Y.N.Ravani for the petitioner learned Assistant Government Pleader Page 1 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTMr.Kanva Antani for respondent No.1­State learned advocate Mr.Devang Vyas for respondent No.2 learned advocate Mr.Deepak Sanchela for respondent No.3 learned advocate Mr.Chintan Dave for respondent No.4 learned advocate Mr.M.I.Hava with learned advocate Mr.Angad Varma for respondent No.5 learned advocate Mr.Deven Parikh assisted by learned advocate Mr.S.P.Majmudar for respondent No.6 through video conference.1.Rule returnable forthwith. Learned advocates for the respective respondents waives service of notice of rule.2.Having regard to the controversy which is arising in this petition in narrow compass with the consent of the learned advocates for the respective parties the same is taken up for hearing.3.By this petition under Article 226 of the Constitution of India the petitioner has prayed for the following reliefs:“ A) Your Lordship may be pleased to admit and allow this petition.B) Your Lordship may be pleased to issue a writ of mandamus and or any other appropriate writ order or direction in the nature of mandamus directing the District Collector Morbi to place on record all the required permissions granted to respondent No.6 for initiating and starting petrol pump on the land in question and further be pleased to cancel such permission holding the same to be contrary to the provisions of Gujarat Town Planning and Urban Development Act 1976 and the Gujarat Comprehensive Development Regulations 2017 and also in violation of fundamental rights of the petitioner.C)Pending admission hearing and or final disposal of this petition Your Lordship may be pleased to direct the Page 2 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTrespondents more particularly respondent No.5 & 6 herein to maintain status­quo qua the land in question and not to continue with the work of initiating the site for petrol pump.D) Such other and further orders as Your Lordships may deem just fit and expedient be passed in favour of the petitioner.”4.The petitioner is a resident of Dawoodi Plot No.3 Ravapar Road Morbi and the plot of respondent No.6 is on the Ravapar Road side while residence of the petitioner is having common wall on the Dawoodi Plot side.5.The respondent No.6 started construction activity for establishing petrol pump having agency of respondent No.5­Shell India Marketing Private Limited. The respondent Nos.1 to 4 i.e. the Collector Deputy Collector Morbi Municipality and Gujarat Pollution Control Board granted requisite permissions as well as sanctioned the plan for construction. The petitioner therefore being aggrieved by the activity of establishing petrol pump in residential area adjacent to the house of the petitioner has preferred this petition. Submissions on behalf of the petitioner :6.Learned advocate for the petitioner Mr.Y.N.Ravani submitted that the proposed construction of the petrol pump in the residential area is contrary to the provisions of the Gujarat Town Planning and Urban Development Act 1976of Section 2 of the Act 1976 defines Page 3 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTresidence which includes use of human habitation of any land or building etc. and Section 5 of the Act 1976 deals with the Constitution of Area Development Authority and Section 12(2)(a) of the Act 1976 prescribes the content of the draft development plan for designating the use of the residential purpose commercial agriculture and recreation purpose. It was therefore submitted that the Area Development Authority is required to frame the Rules and Regulations by declaring the Zone as per the statutory provisions and therefore General Development Control Regulationscan only be declared in conformity with the statutory provisions.7.Learned advocate Mr.Ravani submitted that activity permissible in the residential area is required to be in relation to residence only like domestic shops or some consultancy services. It was therefore submitted that even if any provision of the GDCR provides any activity which is not in conformity with the provisions of the Act 1976 the same cannot be allowed to operate. It was therefore submitted that anything which is contrary to the residential use though permitted by GDCR cannot be allowed to operate.8.The learned advocate Mr.Ravani further submitted that the GDCR 2017 applicable for all major Cities and Towns of the State of Gujarat except Gandhinagar is declared by the State of Gujarat under Section 17 Page 4 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTof the Act 1976 and such GDCR is also applicable to the Morbi­Wankaner Urban Development Authority. It was pointed out that the plots allotted to the petitioner and the respondent No.6 out of the said land in question are from erstwhile Royal State and therefore they are of Gamtal land and contention raised by the respondent No.6 in the affidavit that the land in question is “A” tenure land which is not supported by the documents and hence undisputedly it is a residential area and not the commercial area. The attention of the Court is invited to the amended GDCR 2019 to point out that the construction of the petrol pump is not in accordance with law and the discretions used by the Authorities are in contravention of the guidelines issued by the Central Pollution Control Board and the judgment of the National Green Tribunal.9.The learned advocate Mr.Ravani relied upon the existing GDCR to demonstrate that the respondent No.6 is not entitled to utilize the residential plot for the fueling station on the following three counts :“(i)The distance from two junction of road is less than 50 mtr.The fuelling service station is not having distance of 30 mtrs. from the near by residence which should be at least 50 mtrs.”10.It was submitted that the size of the plot of the petitioner is 25.50X31.30 Sq.Mtrs and therefore Page 5 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTthere cannot be the distance of more than 50 Mtrs from any of the residence to that of petrol tank which is the minimum requirement. It was therefore submitted that the activities of construction of petrol pump at the site of the respondent No.6 is not legal and valid and contrary to the directions of the National Green Tribunal which are made applicable by the Central Pollution Control Board.11.It was submitted that the permissions given by the authorities under the Act 1976 are also subject to compliance of the Petroleum Rules 2007 and Petroleum Act 1934. It was pointed out that the Petroleum Rules provide that flash point is 23 degree and in such range of flash point there should be a fire. It was submitted that the residential premises having cooking range closer to the flash point of the Petrol Pump which is at 23 degree only and therefore there is likelihood of fire if the Petrol Pump is permitted to operate in residential area near to the residence of the petitioner. It was submitted that as per Rule 11 of the Petroleum Rules 2007 there is apprehension of smoke or fire in the area of petroleum storage place and in view of the closer of the cooking range of all surrounding residence including flats adjacent to the petrol pump there is likelihood of breach of Rule 11 of the Petroleum Rules 2007.12.The learned advocate Mr.Ravani further submitted that the apprehension of the petitioner is not Page 6 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTimaginary because in Morbi Town itself twice there was fire in petrol pump. Reliance was placed on the news paper reports dated 28th November 2007 and 24th January 2008. Reference was also made to the recent fire at Hospitals in Ahmedabad and Rajkot.13.The learned advocate Mr.Ravani submitted that the Municipality has filed an affidavit admitting the fact that the road size where permission is granted is less than width of 18 Mtrs. Though there is discretion for granting permissions when the road width is between 12 Mtrs and 18 Mtrs and Municipality has exercised its discretion but such discretion should uphold the object of the provision of the Act 1976 and not to defeat them. It was submitted that the discretion exercised by the Municipality is in arbitrary manner because if the surrounding plots would have been open land it could have been exercised but when the surrounding plots are residence it would cause threat to the life of the persons residing in the area. The learned advocate Mr.Ravani relied upon the following decisions in support of his submissions :“i.R.K.Mittal and Others Versus State of Uttar Pradesh and Others reported in 2012SCC 232.ii. M.C.Mehta Versus Union of India and Others reported in 2004SCC 588.iii.M.C.Mehta Versus Union of India and Others reported in 2006SCC 399.Page 7 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTiv. K. Ramdas Shenoy Versus The Chief Officers Town Municipal Counsel Udipi and Others reported in AIR 1974 SC 2177.v. K.K.Bhalla Versus State of M.P. and Others reported in AIR 2006 SC 898.vi. S.N.Chandrashekhar and Another Versus State of Karnataka and Others reported in AIR 2006 SC 1204.vii. Govindbhai Bhurabhai Borisagar and 1 versus Disc. Collector Amreli and 3 in SCA 186006.”14.The learned advocate Mr.Ravani submitted that the permissions issued by the respondent authorities are contrary to the statutory provisions in view of the Laws settled by the Supreme Court in case of R.K.Mittal and Others V s. State of Uttar Pradesh and Others reported in 2012 2 SCC 232. It was submitted that the law is well settled that activity contrary to the residential purpose cannot be allowed in the residential zone more particularly where permission of Explosives Act GPCB permissions for Environment Clearance and storage of Highly Inflammable and Explosive Materials are to be kept because such activity can never be said to be supporting domestic activity. Submissions on behalf of the respondents :15.The learned advocate Mr.S.P.Majmudar appearing for the respondent No.6 submitted that the petition is not maintainable and therefore should be rejected Page 8 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTas the prayers and pleadings are vague. It was submitted that the petition is in nature of seeking inquiry. It was submitted by learned advocate Mr.Majmudar that the petitioner has not made any averment in the petition that there is any collusion between the respondents or there is any mala­fide exercise of powers and therefore even if it is presumed that the petitioner has some grievance with regard to the permissions being issued the petitioner ought to have availed the remedy provided in concerned law. It was pointed out by learned advocate Mr.Majmudar that permissions granted to the respondent No.6 are legal and in accordance with the GDCR as well as the provisions of all applicable laws like Petroleum Act and Rules and respondent authorities after complete investigation and inquiry have granted the permissions in exercise of their powers in a bona­fide manner.16.In support of his submission the learned advocate Mr.Majmudar relied upon the decision of this Court in case of Sahajanand Flat Holders Association V s. Ahmedabad Municipal Corporation reported in 2012GLH8 wherein the Division Bench of this Court has held that the petition would not lie when there is a dispute between two private individuals whether the relevant Government Department ought to have granted permission or not. It was therefore submitted that the petition is liable to be dismissed as this Court is not a Forum for considering the veracity of the permissions Page 9 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTgranted by the respondent authorities at the instance of the petitioner.17.The learned advocate Mr.Majmudar submitted that this Court has entertained the petition by issuing the notice only because the petitioner brought to the notice of the Court the old GDCR and the old provision of law to point out that there was a breach of the GDCR however as per the amended GDCR the permission granted by the authorities after following due process and investigation in accordance with the rules and regulations. It was submitted that the petition has not been filed with clean hands as the petitioner has relied on the old GDCR to point out the defects in the permissions granted by the respondent authorities. It was submitted that the amended GDCR considers the petrol pump under the category “Public Utility” and permits that in any zone having plot size more than 500 Mtrs with frontage of 16.5 Mtrs and abutting road of more than 12 Mtrs the petrol pump can be permitted to be operated. It was submitted that such permissions have been granted to many others who have petrol pumps running on the same road. It was therefore pointed out that the contentions raised by the petitioner that there is a breach of the provisions of the GDCR is not true and correct.18.With regard to the contentions raised by the petitioner for breach of provisions of the Petroleum Act it was pointed out that the respondent Page 10 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTauthorities have carried out detailed investigation and the reports from Police Additional Magistrate Executive Magistrate etc. were obtained before granting the permissions for starting the petrol pump. With regard to the concern about the safety requirement raised by the petitioners it was submitted that the plans of the petrol pump have been scrutinized in detail and approved by the Petroleum and Explosive Ministry and the affidavits filed by the concerned officers clearly demonstrate how the permissions have been granted in bona­fide manner after detailed investigations. It was therefore submitted that in such circumstances the present petition is required to be dismissed. 19.With regard to the contentions raised by the petitioner of not following the directions issued by the National Green Tribunal and Central Pollution Control Board is concerned it was submitted by the learned advocate Mr.Majmudar that such guides lines and directions have no applications retrospectively. It was pointed out that in the facts of the case various necessary permissions have been granted by the respondent authorities and when it was granted there were no such guide lines and as such the respondent No.6 has invested huge amount to start the petrol pump. It was further submitted that the petitioners have approached this Court with a delay of more than six months after filing of representation before the Collector. It was submitted that the guide lines are not retrospective in Page 11 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENToperation otherwise it would create havoc to revoke the permissions which are already granted.20.The learned advocate Mr.Majmudar further submitted that the guide lines relied upon by the petitioners are also misinterpreted because the guidelines refers to 30 Mtrs distance only in cases where GDCR provides for exclusive residential areas. It was therefore submitted that guide lines cannot prevent the State Government to under take town planning as per the provisions of the Act 1976 which permits the petrol pump as public utility in the residential area subject to the safeguards and limitations which are duly complied by the respondent No.6 in the facts of the case. The learned advocate Mr.Majmudar further submitted that if the guide lines issued by the National Green Tribunal are not followed the petitioner is required to approach the Tribunal. It was therefore submitted that considering the facts arising from the pleadings the petitioner has shifted the focus on the veracity of the GDCR and therefore such broader issue cannot be the subject matter in the petition under Article 226 of the Constitution of India and at the best it can be subject of the Public Interest Litigation.21.It was submitted that the petrol pump is not intrinsically a dangerous activity as to install such unreasonable fears of right to life in the neighborhood. The learned advocate Mr.Majmudar therefore submitted that the respondent No.6 has a Page 12 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTright to use their property and to earn money therefrom and to exercise their fundamental rights under Article 19(1)(g) of the Constitution of India. The petitioner cannot prevent a citizen from using a property as per the wish of the owner of such property. It was therefore submitted that the petition being devoid of any merit and is require to be rejected with cost.22.The learned advocate for respondent No.5 adopted the submissions of learned advocate Mr.Majmudar for respondent No.6 and reiterated that writ­petition is an abuse of process of law as the petition is in nature of Public Interest Litigation without disclosing the names in details of any surrounding persons who are alleged to be affected. It was submitted that the petition is filed only with a mala­fide intention of redressing personal grievance against the respondent No.6 for fishing and roving inquiry.23.It was submitted that the petitioner cannot call upon the Court in the writ­jurisdiction to carry out an inquiry as per the settled legal position. It was submitted that the petitioner has alternative remedy for redressal of the grievance raised in the petition and has the adequate remedy provided under the Right to Information Act 2005 by preferring an appeal for not getting the information from the Public Information Officer. It was further submitted that the petitioner has suppressed material facts in the Page 13 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTpetition by not disclosing discussion negotiation between the petitioner and the respondent No.6 in August 2020 regarding the purchase of the petitioner’s land property which eventually did not fructify. It was further submitted that the grievance raised by the petitioner falls within the ambit of the National Green Tribunal and if the petitioner has any grievance against the breach of directions or guidelines issued by the Central Pollution Control Board the petitioner is required to approach to the Tribunal. It was pointed out that petrol pump is a public utility under the GDCR as table no.6.3 of the GDCR provides the category of uses which are permitted and at serial no.31 of the table clearly states that fueling station would come under public utility. It was pointed out that in point no.6.2 of the table it is stated that industrial use and public utility sectors cannot be regulated on the basis of road width. It was submitted that the construction of petrol pump is in accordance with the rules and regulations and the same is done after obtaining requisite permissions from the respondent authorities. Reliance was placed on the decision of the Delhi High Court in case of DLF Universal Ltd. v. Greater Kailash II Welfare Association 127 reported inDLT 131. It was therefore submitted that the petitioner has failed to discharge the burden to prove that the permissions granted by the respondent authorities are without conducting proper survey and without exercising all diligence and therefore the petition is liable to be Page 14 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTdismissed.24.Learned Assistant Government Pleader Mr.Antani relied upon the affidavit in reply filed on behalf of the respondent No.1­District Collector and submitted that the respondent authorities have issued the requisite permissions to the respondent No.6 after following due procedure and after making detailed inquiry by all the concerned authorities and after getting positive opinions the permissions were granted. Learned Assistant Government Pleader Mr.Antani relied upon the details of inquiry and opinions from various authorities referred in the affidavit­in­reply filed on behalf of the respondent No.1 which reads thus :“I.By letter dated 21.04.2018 The Executive Magistrate Morbi had granted positive opinion after considering the panchnamu the application of the respondent no. 5 statement of witnesses and other records. Copy of the opinion dated 21.04.2018 is annexed hereto and marked as Annexure­R1.ii.By letter dated 21.04.2018 the Sub Divisional Magistrate Morbi had granted positive opinion considering the Panchnamu application of respondent no.5 the layout plan statement of witnesses and other documents. Copy of the opinion dated 21.04.2018 is annexed hereto and marked as Annexure­R2.iii.By letter dated 07.06.2018 Office of Superintendent of Police Morbi had granted no objection certificate after verifying fulfillment of all conditions. Copy of the letter dated 07.06.2018 is annexed hereto and marked as Annexure­R3.iv.By letter dated 26.04.2018 Morbi Municipality had granted no objection upon fulfillment of condition of keeping open space for movement of traffic and fulfillment of conditions under Ribbon Development Act. Copy of the letter dated 26.04.2018 is annexed hereto and marked as Annexure R4. 8. It is humbly submitted that upon conducting inquiry and consideration of the opinion the office of answering respondent being competent authority issued No Objection Certificate in accordance with Rule 144 of the Petroleum Rules 2002 on 12.06.2018. Copy of the No objection certificate dated 12.06.2018 is annexed hereto and marked as Annexure R5.Page 15 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENT9.It is humbly submitted that as mandated by Rule 144(5) of the Petroleum Rules 2002 the respondent no.1 issued the no objection certificate within three months from the date of the receipt of the application. Thus the answering respondent has acted in accordance with law after following due Procedure as well as per the Petroleum Rules 2002.10. It is submitted that for operation of the petrol pump The Petroleum Act 1934 read with Petroleum Rules 2002 are made applicable and therefore any legality of grant or non­grant of the application will have to be teated from the lens of the Petroleum Act 1934. In instant case as far grant of no objection by District Authority is concerned the answering respondent has acted in accordance with the Rules. It is submitted that respondent no.2 is the appropriate authority for grant or rejection of the application and role of respondent no.1 is limited.”25.Learned advocate Mr.Deepak Sanchela appearing for the respondent No.3 submitted that the respondent No.3 Morbi Municipality has given the construction permission to the respondent No.6 considering the GDCR dated 19.10.2019. It was submitted that as per the latest and revised GDCR norms fueling station comes under the public utility and therefore starting of fueling stations can be permitted on the road having width of 12 Mtrs to 18 Mtrs. It was also pointed out that the word “shall be permitted” has been substituted with “may be permitted” and therefore discretionary power has been given to the sanctioning authority.26.Having considered the rival submissions of the learned advocates for the respective parties and having gone through the materials on record it appears that the prayers made by the petitioner in this petition are only with a view to see that the respondent No.6 is not able to operate the petrol Page 16 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTpump in spite of getting requisite permissions from the respondent authorities who have conducted detailed inquiry and due diligence prior to issuance of the requisite permissions for construction of petrol pump.27.Moreover on perusal of the averments made in the petition it refers to the old GDCR whereas the permissions are granted by the respondent authorities on the basis of the GDCR of 2017 and 2019 which provides that fueling station is a public utility which forms part of Sr.No.30 of Table 6.3 prescribing permissible use with respect to road width and Sub­clause 6.2 of the GDCR provides that the industrial uses and public utility structure shall not be regulated on the basis of the road width. Table 6.4 provides for use as per the road width and Sr.No.3 thereof provides that on the road width of 12 Mtr and less than 18 Mtrs the public utility structure can be permitted. Similarly Table No.10.1 prescribing area of fueling station and frontage of fueling and electric vehicle charging stations provides that minimum area of building units is 500 Sq.Mtrs and minimum frontage on road side is 16.5 Mtrs. Therefore the contentions raised on behalf of the petitioner that there is a violation of GDCR is contrary to the existing applicable GDCR which is considered by the respondent authorities for granting permission for operation of petrol pump by the respondent Nos.5 and 6.Page 17 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENT28.The petitioner has made hue and cry with regard to granting of permission as per GDCR without challenging such GDCR. The General Development Control Regulations are framed under Section 17 of the Act 1976 and therefore the same are binding upon the constructions being permitted under the provisions of the said Act.29.Reliance placed by the petitioner on the various decisions with regard to the discretion exercised by the authorities for granting permission and sanctioning the plan of construction for petrol pump are not applicable in the facts of the case as such decisions are pertaining to regularisation of illegal industrial activity and for the purpose of environment protection hence such decisions would not be applicable to the facts of the case and therefore the same are not referred to in detail. Decision in case of M.C. Mehta V s. Union of India reported in 2004 6 SCC 588 is with regard to regularization of illegal industrial activity and pertaining to the ecology in the town planning. Similarly the decision in case of R.K.Mittal and others V s. State of Uttar Pradesh and Others reported in 2012 2 SCC 232 is for misuse of land by use of premises in sectors earmarked as residential for commercial activity misuser by allottees whereas in the facts of the case as per the GDCR the permission is granted by the respondent authorities after due verification. The reliance was place on paragraph No.34 to 36 of the decision of the Supreme Page 18 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTCourt in case of R.K.Mittal and othersto point out that regulations are required to be made by the development authority. Paragraph No.34 to 37 are reads as under :“34. In the light of the contentions raised first of all it will be appropriate for this Court to examine the scheme of the Act and the Regulations in question. Under the provisions’ of the Act the Development Authority is obliged to notify an industrial development area. The very object of the Development Authority is to secure the planned development of the industrial development area and the first and foremost step in this direction is to prepare a plan for development of the industrial development area. This development plan is to demarcate and develop sites for industrial commercial and residential purposes. The land which falls within the jurisdiction of the Development Authority and is a part of the development plan can be transferred in terms of Section 7 of the Act by auction allotment or otherwise on such terms and conditions as the Development Authority may state and subject to any rules that may be made thereunder. No person can erect or occupy any building in an industrial development area in contravention of any building regulation. 35. Under Section 6(2) of the Act the Development Authority is empowered to make regulations to regulate the erection of the buildings and Section 6(2)(b) specifically authorises the Development Authority to make regulation providing for the layout plan of the building whether industrial commercial or residential. The transfer of the land has to be as per the terms and conditions contained in the lease deed executed by the Development Authority in favour of the transferee. But this all has to be subject to the provisions of the Act and the regulations framed thereunder. It has to be clearly understood that the lease deed has to be in consonance with law and cannot be in conflict with the provisions of the law. Section 14 of the Act empowers the Development Authority to resume the site or building so transferred and further forfeit whole or any part of the money paid in respect thereof if the lessee commits breach of the terms and conditions of the lease. 36. No provision of the Act has been brought to our notice which provides for the manner and method to be adopted by the Development Authority for preparation of the development plan in accordance with the provisions of the Act. This is where the Regulations come into play. Under Regulations 3 and 4 of the Regulations the draft plan has to be prepared by the Development Authority for development of an industrial area which will include a sector plan. 37. The meaning of “residential use” under the Regulations is a restricted one and is incapable of being given a wide connotation. It means the use of any land or building or part thereof for human habitation and such other uses incidental to Page 19 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTthe residential use. The very language of Regulation 2(1)(k) of the Regulations clearly depicts the intent of the framers that the expression “residential use” is not to be understood in its wider sense in fact it would require strict construction because all other uses have been separately defined. The different kinds of uses therefore have to be understood only in terms of the explanation or meaning given to them under the Regulations. If unduly wide meaning is given to the expression “residential use” then it is bound to cause overlap between the other uses. It would cause unnecessary confusion. Thus each use has to be understood as per its plain language and there is no need for the Development Authority or for that matter even for the courts to expand the meaning given to such expressions. The expression “such other uses incidental to residential uses” in Regulation 2(1)(k) has to take its colour from the use of the building for human habitation. In other words the latter part of the Regulation has to be read ejusdem generis to the earlier part of that Regulation.”30.From the above dictum of law when the authorities have considered the facts of the case while granting permission the residential use as per the meaning given under the regulations is kept in mind and as per the GDCR which permits public utility to be part of the residential zone which includes fueling stations it cannot be said that the GDCR are contrary to the provisions of the statute as contended by the petitioner.31.Moreover in the facts of the case the petition is nothing but an abuse of process of law more particularly when the petitioner has an alternative efficacious remedy under the various provisions of the Act and Rules and even if the reliance placed by the petitioner on old GDCR is not taken into consideration. There is no infirmity in the impugned permissions granted by the authority which would call for interference while exercising extraordinary jurisdiction under Article 226 of the Constitution of Page 20 of 21 on : Fri May 07 23:38:09 IST 2021 C SCA 11403 2020 CAV JUDGMENTIndia. The petition therefore being devoid of any merit is accordingly dismissed. Rule is discharged. Order in Civil Application No.20 :In view of the order passed in the Special Civil Application the Civil Application is accordingly dismissed.(BHARGAV D. KARIA J) PALAK Page 21 of 21 