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W.P.(C) No. 1785/2007
With
I.A No. 831/2011
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In the matter of an application under Article 226 of the Constitution of India.
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Dr. S.S.Narnolly Petitioner
Versus
The State of Jharkhand & Ors. Respondents
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For the Appellant/Petitioner M/s. Jitendra Singh, Snr. Adv.,
A.K.Das,. H.P.Singh
For the Respondent -State Mr. R.R.Mishra, GP II
For the Respondent No.6 M/s.A.Gupta, Snr.Adv.,
A.R.Choudhary
For the Respondent -RRDA Mr.A.K.Singh
For the Respondent -Pollution Board Mr.A.K.Pandey
For the Intervener M/s.M.Dey, Snr.Adv., A.Kumar
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PRESENT
HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE P.P.BHATT
Reportable The 17th, December, 2012
Prakash Tatia, CJ. The petitioner has preferred this writ petition, seeking the
following reliefs:-
"(1) For a declaration that (a) NOC granted by the Pollution
Control Board, vide Memo No.N-84 dated 9.2.2005 under section 25 and
26 of Water (Prevention & Control of Pollution) Act and under section 21
of Air (Prevention & Control of Pollution) Act and their subsequent
renewals are illegal.
(b) Emission consent order issued by Jharkhand State
Pollution Control Board by Reference No.1294 dated 17.6.2005 under
section 21 of the Air Act and its subsequent renewals are illegal.
(c) Discharge consent orders issued under Reference No.1295
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dated 17.6.2005 under section 25 and 26 of the Water Act and its
subsequent renewals are illegal.
(2) For a declaration that NOCs, consent orders and licenses
under Factories Act to respondent no.6 in a residential area is arbitrary,
illegal and unconstitutional.
(3) For a direction for dismantling and shifting of respondent
no.6's unit being in contravention of Air Act, Water Act, Environment Act,
Hazardous Wastes (Handling & Management) Rules and Building Bye
Laws under Ranchi Regional Development Authority Act and emitting
fumes causing carcinogenic effect on human body."
2. The factual background of this litigation is relevant.
A letter dated 28.3.2007 complaining about construction of
one Maruti Car Showroom and Workshop dated 28.3.2007 addressed to
the then Hon'ble Chief Justice of Jharkhand was received by the High
Court and on 30.3.2007, it was ordered to be placed before the Bench
hearing PIL and therefore, it was registered as Public Interest Litigation
being W.P (PIL) No.1785/2007. On 3.5.2007 the Division Bench headed
by the then Hon'ble Chief Justice observed that the letter shows that some
personal interest is also involved and therefore, directed this petition to be
treated as regular writ petition (private person writ petition) and directed
to post before the Single Judge having the roster of the writ petition.
Faced with this situation, the author of the letter, the petitioner, moved an
interlocutory application for amendment in the writ petition obviously, for
the reason that the writ petition was registered on the basis of the letter to
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the then Hon'ble Chief Justice and detailed pleadings were not in the
letter. After hearing the parties, by the order dated 16.1.2009, learned
Single Judge allowed the application for amendment. In view of the above
liberty to file amended petition, the petitioner filed amended writ petition
and then respondents filed counter affidavit. Thereafter this petition was
tagged with another PIL being W.P (PIL) No.1076/2011. In W.P(PIL)
No.1076/2011, an order was passed that one I.A No.831/2011 filed in
W.P(PIL) No.1076/2011 would be heard along with the present writ
petition, being W.P (C) No.1785/2007 and it was also ordered that the writ
petition which was registered on the basis of the letter and was converted
into private interest litigation as W.P (C) No.1785/2007 would also be
heard along with W.P (PIL) No.1076/2011. However, W.P (PIL)
No.1076/2011 has been decided by a separate order dated 24th August,
2011 and therefore, the present writ petition, being W.P (PIL)
No.1785/2007 converted as W.P (C) No.1785/2007 and I.A No.831/2011
remain pending for decision of this Court. One another application I.A
No.870/2011 was also pending which was also heard along with this writ
petition.
3. Coming to the facts of the case, it will be appropriate to
mention here that the petitioner, Dr.S.S.Narnoly, sent a letter to the High
Court in the name of the then Hon'ble Chief Justice on 28.3.2007 alleging
that he is a resident of purely residential area in the capital city, Ranchi,
of Jharkhand State at Kanke Road and the said area also houses the
residence of seniormost functionaries of the State and some of the highest
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dignitaries of the State are residing in the same area. It is stated therein
that surprisingly in this residential area, a commercial complex in the
name of Premsons Motor Maruti Udyog Pvt. Ltd. of respondent no.6, has
come up. The petitioner stated in the letter that in the said commercial
complex, being a Maruti showroom cum service and repair centre, the
work of denting, painting and other associated works are being carried out
and during denting, lot of sound is produced which is disturbing his
children in their studies. The petitioner stated that he is a Surgeon and
starts working early in the morning in Nagarmal Modi Seva Sadan and
comes to residence at 3.00 pm for lunch for short rest and the sound
emitting from the workshop is disturbing his rest and thus, the petitioner
submitted that he is unable to perform his surgery properly. He also
alleged that apart from sound pollution, painting of cars emits fumes of
paint containing organic carbon, which spreads all around in the area
including the house of the petitioner. The petitioner claimed that he being
a Doctor knows that these fumes of paint are carcinogenic and may
produce (i) Bronchitis, (ii) Bronchopneumonia, (iii) Bronchial asthma, (iv)
Lung Cancer and (Voldemort) Cancer of Bladder. He submitted that in the
interest of the health of the communities, an industry producing sound, air
and water pollution must be barred from doing so in a residential area. The
petitioner also submitted that he had written letter to the State Pollution
Control Board and Ranchi Municipal Corporation but all in vain and
therefore, proper action may be taken to safeguard the health of the
community.
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4. After conversion of the writ petition from PIL to the
petitioner's private interest litigation, the petitioner submitted detailed
facts and pointed out that for planned development of the city area of
Ranchi before bifurcation of State of Bihar, there was Bihar Town
Planning and Improvement Trust Act, 1951, which was enacted in 1951,
by virtue of which Ranchi Improvement Trust was constituted. Under
section 33 of the Bihar Town Planning and Improvement Trust Act, 1951
(Bihar Act XXXV of 1951) as amended by the Bihar Town Planning and
Improvement Trust (Amendment) Act, 1952 (Bihar Act XIV of 1952)
and the Bihar Town Planning and Improvement Trust (Amendment) Act,
1955 (Bihar Act VI of 1956) enjoined upon the Ranchi Improvement
Trust to prepare a master plan for Ranchi. In the petition the petitioner
gave the details of the objectives of the Ranchi Improvement Trust and
stated that, its duty was to prepare master plan and while preparing
master plan, to take care of its objectives for which these laws were
enacted, which are substantially and necessarily for the purpose of
planned development of the city area by segregating the industrial area
from residential area with provision for integrated road system as well as
integrated drainage and sewerage system and integrated water supply
system and provision for open space for built up areas and for
development for residential areas on neighbourhood principle, reservation
of suitable areas for various community needs, utilization of natural
amenities, stoppage of ribbon development and recovery of robbonated
road side lands after taking into account any other proposal bearing on the
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health, convenience and comfort of the people of the locality. Ranchi
Master Plan was prepared by the Ranchi Improvement Trust in the year
1965 with expertise provided by the State Town and Country Planning
Organization covering an area of 50 sq. miles which was approved by the
State Government in the year 1972, vide notification No.6972/L.S.G.
Patna dated 28.7.1972.
5. It is submitted by the petitioner that the State Improvement
Trust could not deal with the problems posed by the rapid development of
cities in the then State of Bihar and therefore, an Ordinance, "The Bihar
Regional Development Authority" was promulgated in the year 1975 by
the Governor in exercise of the power conferred by clause (1) of Article
213 of the Constitution of India to regulate the growth pattern of the cities
and Ranchi Regional Development Authority was created in September
1975 by notification no.6012 U.D.D. Patna dated 23.9.1975 just after
three months of creation of Patna Regional Development Authority.
Ranchi Regional Development Authority (hereinafter called as R.R.D.A)
was made autonomous, raising it's fund, urban planning agency for
greater Ranchi replacing the Ranchi Improvement Trust. Ranchi Regional
Development Authority covers an area of 6,12,340 hectares, out of which
15,914 hectares are covered by urban centres and 59,04,326 hectares
rural areas.
6. According to the petitioner, respondent no.6, Premsons Motor
Udyog Pvt. Ltd., has constructed and set up an automobile service station
on plot no.502, 845, khata no.157/101, 157/102, mouza - Kathar Gonda,
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P.O. Kanke Road, P.S. Gonda in the district of Ranchi for servicing,
repairing, denting and painting of cars in the workshop. According to the
petitioner, it is, in fact, an industrial set up by the respondent no.6, which
was seriously objected by all the residents of the locality by way of filing
representation before the Deputy Commissioner, Ranchi, as well as to
other authorities even before construction of the workshop. The
petitioner's contention is that firstly, the said workshop, which is, in fact,
in the nature of an industry, could not have been permitted to be set up in
the exclusively residential area but it was permitted to be set up in the
residential area in violation to the restrictions imposed by the Air
(Prevention and Control of Pollution) Act, 1981 and in violation of the
provisions of the Water (Prevention and Control of Pollution) Act, 1974
and of the provisions of the Environment (Protection) Act, 1986 and also
of the provisions of the Hazardous Waste (Management and Handling)
Rules, 1989 as well as had been permitted to be constructed in violation of
the Building Bye-laws framed by the R.R.D.A, which was known as the
Ranchi Planning Standards and Building Bye-Laws, 2002.
7. It is submitted that as per Appendix - "M" of the R.R.D.A
Bye-laws of 2002, use of land have been divided into six zones - (1) Zone
A - Residential, (2) Zone B - Commercial (Retail), (3) Zone C -
Commercial, (4) Zone D - Industrial, (5) Zone E - Public and Semi-
Public Uses and (6) Zone F - Agricultural. It has been submitted that it is
true that under special appeal (in fact, special permission), R.R.D.A can
allow some other land uses but the respondent's unit is a factory and it
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obtained license under the Factories Act and therefore, in the residential
area, neither any factory or industry or factory having industrial activities,
can be allowed even as per permissible use given in Appendix - M of the
Bye-laws of 2002.
8. It has also been alleged that the respondent no.6 got plan
sanctioned through misrepresentation of facts and when the Town Planner
of R.R.D.A objected to the sanction of the plan on the ground that the
proposed site was in a residential area, the respondent no.6 represented
before the Vice Chairman that they would be constructing a commercial
building as permissible in Appendix - M but they suppressed the fact that
they were going to construct a workshop, for which initially factory
license was also obtained by the respondent no.6 in a different name, i.e.
M/s. Senwit Merchants Private Limited. The petitioner placed on record
the copy of the factory license as well as portion of the notesheet of the
R.R.D.A on record. In that situation, the petitioner wrote a letter to the
Deputy Commissioner, Ranchi on 8.1.2007 informing him that the paint
fumes emitting from the unit of respondent no.6 is hazardous to human
health and causes several bronchial ailments, but no action was taken even
after the petitioner represented before the respondent no.3, Member
Secretary, Jharkhand State Pollution Control Board. However, thereafter
the Deputy Commissioner, in response to the petitioner's complaint,
ordered a Magisterial Enquiry against the respondent no.6 and the
Magistrate conducted a surprise raid and thereafter, the unit was ordered
to be sealed on 30.3.2007. However, the Deputy Commissioner directed to
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open the seal after instructing the respondent no.6 to have its premises
inspected by the Pollution Department within two weeks. Thereafter, the
Pollution Control Board conducted an enquiry and during enquiry, though
the petitioner did not object, so far as the construction of the showroom
was concerned, as, according to the petitioner, construction of showroom
would not cause pollution and hazards. The pollution and hazards would
be caused by the rest of the activities, like denting, painting, repairing
work etc. The petitioner further submitted that at that time, respondent
no.6 did not inform the petitioner that the respondent would establish such
industrial unit besides the showroom. Nor the petitioner was informed
about the pollution which the said unit was likely to cause. The Pollution
Control Board gave the enquiry report dated 5.11.2004, a copy of which
has been placed on record by the petitioner. The respondent no.6 was
further directed by the respondent no.3, vide letter dated 5.11.2004, to
obtain consent for establishment of the unit (NOC) under the Pollution
Laws and in response to that, the respondent no.6 applied for NOC, upon
which NOC was issued on 9.2.2005 under section 25 & 26 of the Water
(Prevention and Control of Pollution) Act, 1974 and under section 21 of
the Air (Prevention and Control of Pollution) Act, 1981, which, according
to the petitioner, was given to the respondent no.6 without application of
mind. However, this permission was also granted for automobile service
station having a capacity of servicing 15-20 cars per day. In the petition,
the petitioner also stated that the respondent no.6's unit cannot apply for
permission under the Act of 1974, 1981 and Rules of 1989 after
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completion of the construction and it was granted all permissions but all
those permissions were also granted without application of mind and in a
mechanical manner. To substantiate his plea, the petitioner submitted that
from perusal of documents at Annexure - 9 series, it would be clear that
the respondents admit that the unit of M/s. Premsons Motor Udyog Pvt.
Ltd. is an industrial unit and from the above permission itself, it is clear
that the respondent no.6, was knowing it well that its industrial activities
would cause all sorts of pollution, like air, water and noise pollutions and
would emit hazardous effluents, applied and obtained the above orders
from the authorities. Therefore, the respondent no.6 or other respondents
cannot say that the respondent unit will not cause pollution or will not be a
hazardous unit. The petitioner drew our attention to the various reports,
which, according to the petitioner, prepared in distorted manner, yet are in
favour of the petitioner. The petitioner submitted that those reports clearly
indicate that the reports had been prepared just to favour the respondent
no.6 by making calculation in such a manner that true facts may be
suppressed from the Court. For example in the report of Ambient Air
Quality, figures are shown by calculating suspended particulate for 8
hours time calculation whereas as per the National Standards, the basis is
of 24 hour's pollution. Same thing was done in the report of Noise Level
Measurement, for which standard prescribed by the Central Pollution
Control Board is that at no time the noise level should be more than
55dB(A) Leq whereas the respondent no.6 causes noise level more than
above the maximum limit.
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9. The petitioner also submitted that in the city of Ranchi, due to
gross neglect on the part of the officials of R.R.D.A, there has been
mushroom growth of industrial, commercial, commercial (Retail), and
manufacturing units in the residential areas causing serious violation of
the Building Bye-laws, 2002, as a result of which life and liberty of the
citizens/residents of Ranchi is at stake. It has also been stated that
according to the notification dated 9.2.2005 issued by the Jharkhand State
Pollution Control Board, automobile servicing station can be at a distance
of 25 meters from road in a populated area of not more than 200 persons
or if it is on a State Highway and this condition has also been ignored by
the authorities and admittedly respondent no.6's
industry/factory/workshop is situated in the densely populated area of
more than 200 persons and the showroom is situated within the limit of 25
meter from the road.
10. The petitioner then submitted that by passage of time and
growth of Ranchi, workshops of different car manufacturers gradually
shifted to the industrial area and the petitioner gave example of
showrooms of Sushila Motors, Hyundai Motors, Ford Motors, Chevrolet
and Ambassador, which have already been shifted obviously by those
concerned persons running those showrooms, whereas the respondent no.6
is running a unit wherein 100 workmen have been engaged, who are
carrying out different jobs of repair, maintenance and servicing works,
which includes denting, painting, mechanical engine repair and other
ancillary works in violation of all laws enacted for preventing pollution
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and emission of hazardous wastes. The petitioner submitted that he has
contacted the disease of bronchial asthma due to discharge of paint fumes
arising out of painting booth of the unit of respondent no.6 and because of
running of respondent no.6 workshop, service station and motor garage, it
is causing public nuisance and oil, lubricant and dust etc. collected during
cleaning and servicing of the vehicles are spilled into open municipal
drains meant for discharge of household residential wastes and the
polluted water gets collected in the drain and percolates into the ground
water and during rainy season, it even flows into Dams like Kanke Dam
which is used for supply of drinking water.
11. In view of the above facts, the petitioner prayed for a
declaration that NOC granted by the Pollution Control Board by memo
no.N-84 dated 9.2.2005 under section 25 and 26 of the Water (Prevention
Control of Pollution) Act and their subsequent renewals by declaring it
illegal and the concerned order issued by the Jharkhand State Pollution
Control Board by reference no.1294 dated 17.6.05 under section 21 of the
Air (Prevention and Control of Pollution) Act and its subsequent renewals
by declaring it illegal and same declaration be given for the consent order
given under section 25 and 26 of the Water (Prevention and Control of
Pollution) Act, 1974 and its subsequent renewals. The petitioner also
prayed for a declaration that NOCs, consent orders and the license under
the Factories Act to respondent no.6 in the residential area is arbitrary,
illegal and unconstitutional and prayed for a direction to the authorities to
declare that the respondent no.6's unit is running in contravention of the
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above referred Acts, Rules and Building Bye-laws.
12. The petitioner has raised the following questions of law:-
Whether the R.R.D.A has any authority or
jurisdiction to approve building plan under Building
Bye-laws, 2002 in respect of an industrial
establishment/undertaking or a workshop in the
residential area; whether in the grab of building plan,
R.R.D.A can approve running of an industry without
any impediment in a residential area causing great
inconvenience to the residents; whether public at
large be allowed to suffer on account of inaction on
the part of the local authorities, like R.R.D.A,
Pollution Control Board by allowing to run industrial
workshop in residential areas causing public nuisance
and health hazards; and whether R.R.D.A has strictly
followed Appendix M of Bye-laws of 2002?
13. The petitioner further raised the question - whether the
respondent no.6 can be allowed to discharge industrial effluents such as
oil, lubricants, chemicals etc. in the open drain causing nuisance in the
entire locality and also polluting underground water endangering the life
and liberty of the citizens and whether release of chemical such as paints,
dusts in the air by the industrial establishment in a residential area can be
allowed to continue without any check or regulation?
14. Considering all the allegations leveled by the petitioner, the
respondent no.6 submitted that Punit Kumar Poddar and Pankaj Kumar
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Poddar are the successors and owners of plot no.502 measuring 3826
sq.mt. (approx.) on Kanke Road and the adjacent plot is owned by the
petitioner, who runs a medical clinic, godown of medicine equipments,
Rosna and other consumer products and the petitioner gets waste cotton
burnt in his premises, which creates bio-medical waste of category - 4 and
during enquiry carried out by the Assistant Environment Officer on the
basis of anonymous letter, the petitioner and others informed that they had
no objection to the construction of showroom and workshop and the
Officer-in-charge of the area reported that even the people who having
their business near the property in dispute have no objection and the
dispute seems to be of business rivalry and by those people who made
efforts but failed to get the showroom and workshop of Maruti udyog. It
is also submitted that the petitioner himself gave his no objection to the
construction in question. It is submitted that the filing of the writ petition
has been result of personal rivalry of the writ petitioner as there was
boundary dispute with the petitioner and on 24.2.2006 settlement was
arrived at for this boundary dispute between the petitioner and Punit
Kumar Poddar and Pankaj Kumar Poddar, but on 2.3.2006, the petitioner
sent a letter to the Maruti Udyog referring to the anonymous letters sent
earlier by unknown persons regarding air and noise pollution in residential
area. Not only this, even the respondent no.6 lodged police complaint
against the petitioner and his son regarding harassment and various
complaints. In addition to above, complaint dated 12..1.2007 was filed by
the petitioner for unauthorized construction on the spot and thereafter, on
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28.3.2007, the petitioner wrote a letter to the then Hon'ble Chief Justice of the High Court. Though earlier the letter was treated as Public Interest Litigation but subsequently this Court found it to be personal interest litigation, which is clear from the order dated 3.5.2007 passed in this petition. It is submitted that after considering the complaint of the writ petitioner, respondent no.6 revised the Building Plan No.1302/7, which was duly sanctioned by the R.R.D.A and unauthorized construction case being UC No.133/07 was closed by the R.R.D.A in favour of the respondent no.6 against which no appeal was preferred by the petitioner under section 54 of the R.R.D.A Act, 2001 and as such, the said order became final.
15. It has been submitted on behalf of the respondent no.6 that the respondent no.6 duly applied for grant of permission under the Bye- laws of 2002 and all facts were carefully considered by the competent authority including the objections raised by the Officers of the R.R..D.A about the permission for commercial unit of the building of the respondent no.6 and thereafter, after obtaining relevant inspection reports, the construction permission was granted with conditions of obtaining relevant permission from the other Departments and no objections, which were was duly granted by the various Department and this fact has been admitted by the writ petitioner himself. The respondent no.6 has not been granted permission for construction and service station in the premises in violation of any of the conditions of the Bye-laws of 2002, which has been decided by various inspections again and again. Counsel for the -16- respondent no.6 drew our attention to the various inspection reports which are dated 5.11.2004, 24.1.2007, 13.4.2007, 7.7.2009, 8.10.2009, 14.12.2009, 19.6.2010, 27.7.2010, 5.8.2010, 26.2.2011, 12.3.2011 and 14.3.2011, and towards letters dated 14.2.2007 and 27.1.2010 as well as last inspection conducted in the premises of the respondent no.6 pursuant to the letter dated 26.3.2011, which has been issued pursuant to the order passed by this Court in public interest litigation and submitted that all these reports clearly indicated that the respondent no.6 had not violated building bye-laws, nor was engaged in any prohibited activity, in the residential area and it was granted all permissions by all the competent authorities after careful consideration of all facts which are clearly indicated in the reports and R.R.D.A has granted permission to the respondent no.6 to construct service station, which is permissible under the Schedule M of the Bye-laws of 2002 but because of the personal grudge of the writ petitioner against the respondent no.6 and for ulterior and oblique motive, the petitioner tried to obtain the relief by projecting it to be public interest litigation, whereas the Court itself found that there is involvement of personal interest of the writ petitioner and there is no element of public interest. It is submitted that looking to the conduct of the writ petitioner and vested interest as well as because of the suppression of the materials facts and attaining finality of the order passed on the complaint of the petitioner, the writ petition of the writ petitioner deserves to be dismissed. It is also submitted that writ petitioner as well as interveners who moved I.A No.831 and 870 of 2011 had filed -17- several complaints in the last six years which have already been investigated fully and after due inspection, nothing was found wrong in the activities of the respondent no.6.
16. So far details about permission for construction and establishment of the respondent no.6;s unit is concerned, it is submitted that the respondent submitted application on 11th August, 2001 and thereafter submitted special appeal on 11th October, 2004 with R.R.D.A for sanction of the plan for carrying out construction for showroom cum workshop for motor cars, which is a commercial activity but permissible in residential area. On this application, detailed survey, investigation and inspection were carried out which were duly considered in the file noting dated 11.3.2004 to 18.4.2004 and thereafter sanction order was issued on 19th October, 2004. According to respondent no.6, a conjoint reading of clauses 2.46(6), 18.4, 20.2 with Appendix M of the Building Bye-laws of 2002 clearly establish that building having Mercantile/Commercial activities is permissible construction in residential land use zones. The showroom cum service station with workshop for Maruti cars is a showroom cum retail shop and a service station, which is incidental to such showroom and service centre. It is submitted that the unit of the respondent no.6 clearly falls within the definition of Mercantile/Commercial building. It is also submitted that for showroom, there is no contravention of any provision and sanctions granted for building in question are in accordance with the valid laws in force and thus, respondent no.6 cannot be prevented from utilizing his own property -18- as lawful owner of the property and for lawful purpose. It is further submitted that the primary business of Premson Motors is commercial in nature, i.e. selling of cars/vehicles manufactured by Maruti and it uses the showroom for storing, marketing, display and sale of cars and vehicles and for providing after-sale service for the cars and vehicles sold by it which is incidental to its mercantile activity and looking to the nature of the works, which is "service" respondent no.6 is levied with service tax under the Finance Act, 1994 and therefore, it does not fall in the category of industry, as it does not manufacture and is not producing anything. It is submitted that as per section 65(9) of the Finance Act, 1994, authorized service station means any service station or centre authorized by any motor vehicle manufacturer to carry out service, repair, reconditioning or restoration of any motor car or two wheeled motor vehicle manufactured by the manufacturer; therefore, under the definition of authorized service station, repairing of vehicle is permissible work. So far as obtaining license under the Factories Act, 1948 is concerned, that cannot change the nature of the work because of the application of the provisions of the Factories Act, which is meant for limited purposes to give benefit to the labourers/workmen and cannot be used for any other purpose, particularly for interpreting Excise Act or Building Bye-laws. Since the respondent no.6 is running sale cum repair centre for Maruti cars and is not bringing out any new commercial commodity into existence and as such, is not manufacturing any product, it is not an industry.
17. It is submitted by learned counsel for the respondent no.6 that -19- Kanke Road is a State Highway and has heavy traffic which is an indicator of urban growth and on this very Kanke Road, there are 32 automobile units which are running without any complaint and there are more than 500 automobile workshops, mostly in residential area. A report on Kanke Road clearly indicates that this road is full of commercial activities and pollution and pollution is not because of respondent no.6's unit. The respondent also placed on record copies of the notification dated 23.7.2004 declaring Kanke Road as State Highway and a map of Kanke Road and Expert Report dated 14.12.2009 of High Powered Committee of CPCB and JSPCB for Kanke Road and list of other automobile workshops on Kanke Road filed by the Secretary Urban Development Department dated 16.9.2009 and various other documents. The respondent also questioned the jurisdiction of the Secretary Urban Development Department who made noting dated 16.9.2009, which, according to the respondent, has been written without any authority of law and in gross violation of the principles of natural justice, whereby directions were bgiven for closure of the respondent's unit, which was never acted upon. It is submitted that the issue of commercial activities in the residential area has already been determined by the authorities according to rules and have been considered on several times and now there is no reason to permit the petitioner and other persons to re-agitate the issue in the present writ petition or PIL.
18. Learned counsel for the respondent no.6 submitted that the petitioner misrepresented the facts before this Court and therefore, stated -20- that, because of the activities in the premises of respondent no.6, pollution is created and drew our attention to the documents placed on record indicating that the processes in the service stations have radically changed and now with the cost of manual labour going high, use of modern technology of denting is undertaken using "Miracle Repair System", which uses pneumatic force and there is a high level of replacement of part of vehicles because of comprehensive insurance and therefore, now in workshop/service station, even in cases of replacing of parts of vehicles, no noise pollution is there. Not only this, for painting of vehicles, modern "Painting Bake Booths" fitted with three layers of filters prevents any possibility of air pollution of any significance. However, the maximum number of employees working under the respondent no.6 is less than 40. Therefore, in sum and substance, according to the respondent no.6, the complaint of the writ petitioner and other persons is motivated with different aims and objects as well as mala fide based on wrong facts as well as now the issue, which has already been decided by the competent authorities several times after due inspections of the premises of the respondent and permission granted to the respondent no.6 for construction and running of the building and unit, cannot be challenged in the writ petition without preferring appeal and therefore, the writ petition of the petitioner be dismissed on above grounds with heavy cost.
19. I.A No.831/2011 has been filed by the interveners, Dev Narayan Prasad Jaiswal and Narendra Nath Mangla, stating therein that this Court took cognizance of news report whereby it was brought to the -21- notice of the High Court that the authorities of R.R.D.A and Ranchi Municipal Corporation, in complete disregard of their bye-laws and master plans, have sanctioned plans in residential area and Kanke Road is also a purely residential area under the master plan. These interveners also submitted that in utter disregard to the bye-laws, respondent no.6 has constructed and established an automobile showroom and workshop by constructing a mercantile building in purely residential area of purely industrial character and is running all activities which are purely of industrial nature and it emits several times more industrial wastes which are hazardous to the residents and repeated the same allegations which we have referred above and which have been leveled by the writ petitioner against the respondent no.6. Detailed facts of this I.A will not be necessary as substantially we have taken note of all the facts. Interveners also placed on record photocopies of certain noting of the file of R.R.D.A to show that material facts have been suppressed by the respondent no.6 for obtaining construction permission and respondent no.6 merely submitted application that he may be permitted to construct a commercial building in residential area for which several queries were raised. The authorities directed the respondent no.6 to file fresh copy of drawing and design which the respondent no.6 did not submit and did not show the arrangement of mechanical ventilation and lighting in the basement, which was found not sufficient. Interveners already placed on record the copies of certain other documents which we have already referred. This application was replied by the respondent no.6.
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20. One I.A No.870/2011 was also filed by the respondent no.6 and submitted that the said intervener, D.N.Jaiswal, is a Black-mailer and in this connection, information was also given in the local police station on 14.7.2009 and his petition is liable to be rejected. It is submitted that the said D.N.Jaiswal has not mentioned in the application as to the source fromwhere he has obtained file noting of the Urban Development Department of the State of Jharkhand and the respondent no.6 tried to explain all the points mentioned in the noting in I.A No.870/2011.
21. Respondents, R.R.D.A, R.M.C, Pollution Control Board and the State, all supported their orders and reports referred above and submitted that there were no illegality in the orders and therefore, construction permission was granted in accordance with law. Number of supplementary affidavits and counter affidavits were also submitted by the parties, which we have considered.
22. It will be relevant to mention here that on 9.1.2012, one more supplementary affidavit on behalf of the respondent no.6, M/s.Premsons Motor Udyog Pvt. Ltd., has been filed so as to bring on record some important facts including the subsequent developments referred, one of the judgments passed in W.P(PIL) No.5388/2009 (by us) dated 4th July, 2011 and another order passed by this Court dismissing W.P(PIL) No.5231/2011 on the ground that for the relief claimed against the private respondents, petitioners have alleged that the Pollution Control Board has reported that the private respondents are causing serious hygienic, sanitation and environmental problem. Said writs were dismissed with -23- liberty to the petitioners to avail alternative remedy obviously, through the civil court. In this supplementary affidavit dated 9.1.2012, the respondent no.6 placed on record copy of the inspection report dated 12.11.2011, a map showing area of radius of 25 meter for the purpose of grant of NOC from the Pollution Control Department and the copies of the information obtained under RTI Act in connection with applicable tax under Municipal Corporation and Municipal receipts showing payment of rent under residential rates before construction of showroom and workshop and payment under commercial rates after construction of showroom and workshop and copy of new master plan of Ranchi and inspection report dated 9.4.2008 of the Pollution Control Board to show that near the showroom, there are 8-10 houses within 100 meters and copy of the order passed in Cr.M.P No.556/2008 preferred by the respondent no.6, Premsons Motor Udyog Pvt. Ltd., whereby this Court dismissed Cr.M.P No.556/2008 and rejected the prayer of the respondent no.6 for initiating proceedings under section 340 Cr.P.C against the writ petitioner.
23. The record relating to construction permission of the building of the respondent no.6 of State was also called for perusal.
24. We considered the submissions of the learned counsel for the parties and perused the voluminous documentary evidence produced by the parties.
25. Learned counsel for the petitioner relied upon several judgments, wherein similar issues were involved and had been considered -24- by Hon'ble the Supreme Court, which included with respect to the power of the Local Bodies, Municipal Corporations etc. in relation to sanction of building plans for individuals, which may have effect of creation of nuisance, pollution or other hazards in the locality or which may have affect the environment and where in residential area, some commercial or other residential houses have been permitted by the Local Bodies and Hon'ble Supreme Court deprecated the tendency of Local Bodies, whereby they granted construction permission of such offending buildings in the residential area. Learned counsel for the petitioner relied upon the judgments rendered in the cases of K.Ramadas Shenoy Vs. Chief Officer, Town Municipal Council (1974) 2 SCC 506, Indian Council For Enviro-Legal Action Vs. Union of India (1996) 3 SCC 212, Indian Banks' Assn. Vs. Devkala Consultancy Service (2004) 11 SCC 1, Bombay Dyeing & Mfg. Co. Ltd. Vs. Bombay Environmental Action Group (2006) 3 SCC 434, M.C.Mehta Vs. Union of India (2006) 3 SCC 399, R.K.Mittal & Ors. Vs. State of U.P & Ors. (Civil Appeal No.6962/2005) and Shanti Sports Club Vs. Union of India, (2009) 15 SCC 705.
26. Learned counsel for respondent no.6, M/s. Premson Motors, in support of his argument and to draw our attention towards the distinction among the "residence", "commercial", "industrial", "service station" etc. relied upon the judgments rendered in the cases of MSCO (P) Ltd. Vs. Union of India (1985) 1 SCC 51, G.L.Hotels Ltd. Vs. T.C Sarin, (1993) 4 SSC 363, State of Maharashtra Vs. Mahalaxmi Stores (2003) 1 SCC 70 and Qazi Noorul, H.H.H Petrol Pump -25- Vs. Deputy Director, Employees' State Insurance Corporation, (2009) 15 SCC 30.
With the help of the above judgments, leaned counsel for the contesting respondent tried to advance his argument that the respondent has obtained requisite permission from all Departments for establishing its unit at the place and in view of the above judgments, nothing illegal has been committed by the respondent in establishing its showroom and service station.
27. Learned counsel for the respondent no.6, M/s. Premson Motor Udyog Ltd., also relied upon the judgment rendered in the cases of Chhetriya Pardushan Mukti Sangharsh Samiti Vs. State of U.P, AIR 1990 SC 1460 and Greater Kailash Part II Welfare Association & Ors. Vs. DLF Universal Ltd. & Ors., (2007) 6 SCC 448.
28. We considered the submissions of learned counsel for the parties and perused the records including construction permission record produced by the R.R.D.A and judgments relied upon by the learned counsel for the parties. We may recapitulate the facts in brief.
There are some preliminary objections raised by the learned counsel for the respondent no.6, Mr. A.Gupta, Senior Counsel, that it is a personal interest litigation and the petitioner tried to project it as public interest matter, therefore, originally it was registered as public interest litigation but finding involvement of personal interest of the petitioner, this petition, by the order of the Court, has been converted into personal interest litigation. The petitioner's conduct has been challenged and it has -26- been stated that petitioner, is a neighbour of the respondent and had enmity with respondent no.6 and even some criminal cases were filed and because of rivalry and for oblique motive, this petition has been filed. The petitioner also gave in writing that the petitioner has no objection if construction permission is granted to the respondent no.6. It is also submitted that this Court dismissed such type of petition, being W.P (PIL) No.5388/2009, holding that such dispute can be raised in Civil Courts. Therefore, this petition may also be dismissed. Further, the petitioner has challenged the order of grant of permission of construction given by the Ranchi Regional Development Authority and this order has become final, which was an appealable order and petitioner did not prefer any appeal against the said order, which now cannot be challenged straightway in writ petition.
It is true that there is dispute between the petitioner and the respondent no.6 and they are neighbours and there is a construction permission obtained by the respondent no.6 and Unauthorized Construction Case being U.C Case No.133/2007 has been closed by the R.R.D.A and against that, no appeal was preferred by the petitioner under section 54 of the Ranchi Regional Development Authority Act, 2001. But we are of the considered opinion that in the present petition, parties have pleaded their case in detail and placed on , letter of the petitioner was treated to be a public interest case. Then it was converted into private writ petition and thereafter both the parties submitted their replies, counters, rejoinders, supplementary affidavits and voluminous documentary -27- evidence and several inspection reports also have been placed on record. After going through the detail facts of the case and issues involved in this petition, we are of the view that initially in the opinion of this Court it was of public interest but since petitioner's interest was also involved, this petition has been converted into a private petition. Normally, when person's personal interest is involved in any petition, that petition is not entertained in such a form. But when there is composite cause/causes, then in that situation, dismissal of such petition after such delay and after production of all materials before the Court requiring no oral evidence and when issues can be decided on the basis of admitted or proved facts, will be only multiplying the litigation and will cause avoidable delay. However, such discretion is required to be exercised sparingly. Therefore, at this belated stage it will be absolutely inappropriate to send the parties back to the Civil Court, particularly in view of the fact that issues raised in this petition are issues, substantially, of law and so far as facts are concerned, they are not in dispute except question of interpretation of reports which also constitute only legal issues. Further in addition to above, this Court is of the view that now though, it is a private party instituted writ petition, it also involves questions of law of public importance with respect to the power of the Local Body, i.e. Ranchi Regional Development Authority, in the matter of grant of permission in residential area having the activity which is not only of retail shopping but is a big, large selling cars and other vehicles of Maruti brand wich has no direct connection with the facilities and service requirement by the -28- residents of residential area and wherein about 100 employees are allowed to work for commercial purpose. Therefore, we are not inclined to dismiss the writ petition on the ground of personal interest of the petitioner in the matter or because of private dispute between the petitioner and respondent no.6 prior to filing of this petition or because of non-challenging of the order of the Ranchi Regional Development Authority in appeal. Even if alternative remedy may in some cases be sufficient ground for dismissal of the writ petition but this is not such case. Hence, the preliminary objections raised by the respondent no.6 are rejected.
29. The plot in question is situated in the residential area and is having an area of 3826 sq.m. It is situated in capital city, Ranchi, of Jharkhand State at State Highway No.2. The writ petitioner, Dr.S.S.Narnoly, is the neighbour of this plot. Respondent no.6,M/s. Premson Motors Udyog Pvt. Ltd., owner of such disputed plot, submitted two applications, No.1006/04 and No.1302/07, for sanction of Building Plan for establishing an Automobile Dealership Showroom for the activity of sale and service of motor vehicles, which, according to M/s. Premson Motors Udog Pvt. Ltd., is a public utility service of commercial nature and such land use is permissible in residential area under the Building Bye- laws framed by the Ranchi Regional Development Authority being the Ranchi Planning Standards & Building Bye-Laws, 2002 as amended time to time. The property use has been defined in clause 2.46 of the Bye- Laws, 2002. The relevant clauses under 2.46 are reproduced below:-
"2.46 OCCUPANCY OR USE GROUP:
(1) Residential Buildings: These shall include buildings in which sleeping accommodations are -29- provided for normal residential purposes with or without cooking or dining or both facilities. It includes one or two or multi-family dwellings, apartment houses and flats.
................................................ (6) Mercantile/Commercial Buildings: These shall include any building or part of a building which is used as shops, stores, market, for display and sale of merchandise either wholesale or retail, office, stores and service facilities incidental to the sale of merchandise and located in the same building shall be included under this group. Hotels, dormitories and lodging houses shall also come under this category.
(7) Industrial Buildings: These shall include any building or part of a building or structure in which products or materials of all kinds and properties are produced/ manufactured like assembly plants, Laboratories, power plants, smoke houses, refineries, gas plants, mills, dairies, factories etc. (8) Storage Buildings: These shall include any building or part of a building used primarily for the storage or sheltering of goods, wares or merchandise, e.g. warehouse, cold storages, freight depots, transit sheds, store houses, garages, hangers, truck terminals, grain elevators, barns and stables.
(9)Hazardous Buildings: These shall include any building or part of a building which is used for the storage, handling manufactured or processing of highly combustible or explosive materials or products which are liable to burn with extreme rapidity and/or which may produce poisonous fumes or explosions, for storage, handling, manufacturing or processing which involves highly corrosive, toxic, noxious alkalies, acids, or other liquid or chemicals producing flame, fumes and explosive gases, and/or the storage, handling or processing for any material producing explosive mixtures of dust which result in the division of matter into fine particles subject to spontaneous ignition. This shall include petrol filling station also."
30. In the Tables attached to the Bye-Laws, different set backs areas have been prescribed for residential buildings, for commercial, mercantile, business and storage buildings. In a separate Table, requirement of open space area for industrial buildings has been prescribed and in Table 7. Minimum Off-street Car Parking Spaces required is given. The Table as provided under relevant clause 23.2 is as under:-
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"23.2 For building of different kinds off street parking space for vehicles shall be provided as specified below:
(a) Motor vehicles: Space shall be provided as specified in Table - 7 for parking motor vehicle.
Table - 7 Minimum Off Street Car Parking spaces :
S.No. Occupancy/Nature One car parking of 20 sq.m (including driveway) shall be provided for every
1. Residential (a) Two dwellings, each of upto 50
(i)Multifamily residential sq.m carpet area
(b) Dwelling more than 75 sq.m carpet area
(ii)Lodging establish-ments, tourist homes and hotels 120 sq.m carpet area or fraction thereof.
2. Educational 150 sq.m carpet area or fraction thereof the administrative office area and public service area.
3.Institutional
(Medical) 20 beds
4. Assembly 30 persons
5.Government or semipublic 150 sq.m carpet area of fraction
thereof.
6.Mercantile Business and
commercial 100 sq.m carpet area or fraction
thereof.
7. Industrial
200 sq.m Carpet area or fraction
thereof.
8. Storage
100 sq.m upto 500 sq.m area area
and every 200 sq.m thereafter.
NOTE 1. In the case of auditoria for Educational
buildings, parking space shall be provided as per serial no.4 of Table 7 above.
NOTE 2. For plots upto 100 sq.m as in the case of Shops/parking spaces need not be insisted upon.
(b) Other types of Vehicles: For non-residential nonassembly occupancies in addition to the parking area provided under Bye-laws no.23.2(a) above 100 per cent additional parking space shall be provided for parking other types of vehicles of this a minimum of 60 per cent shall be set apart exclusively for cycles.
23.3 Off street parking space shall be provided with adequate vehicular access to a street and the area of drives, allis less and such other provisions required for adequate manouvering of vehicles shall be exclusive of the parking space stipulated in these bye-laws.
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23.4 If the total parking space required by these Bye- laws is provided by a group of property owners for their mutual benefits, such use of the space may be constituted as meeting the off-street parking requirements under these Bye- laws.
23.5 In addition to the parking spaces provided for buildings of mercantile (commercial), Industrial and storage, type at the rate of one space of 3.5 x 7.5 meters, for loading and unloading activities, for each 1000 Sq. meter of floor area or fraction thereof, shall be provided.
23.6 Parking lock-up garages shall be included in the calculation for floor space F.A.R. calculations unless they are provided in the basement of a building, or under a building constructed site with no external wall."
Different roads width are also provided for residential area under clause 33.2 and for commercial, business and industrial, roads width is provided under clause 33.3.
For factories and industrial buildings, under clause 36 and 36.1, it has been provided that notwithstanding any provisions contained in the Bye-laws and the relevant Acts and Rules framed under them every factory, building or part thereof shall comply with the additional requirements as provided under clause 36.2 and 36.3.
31. Much has been argued on the basis of different permissible uses of the land given in Appendix - M. The relevant clauses for our purpose are clause (A), (B), (C) and (D) which are as under:-
"APPEXDIX - 'M'"
PROVISION REGARDING USES IN LAND USE ZONES (Bye-law No.18.4) Land use Use permitted Uses permissible if allowed by the Authority zone after special appeal A. Residential 1.Residences, Hostels and Boarding 1.Places of Worship Houses with density limitations
2.Nursery, Kinder garten and High 2.Professional, commercial and Govt. Offices Schools
3.Clinics, Social and cultural 3.Services, uses and retail shops of a institution with adequate parking neighbourhood character when located in local facilities shopping centres or in concentrated locations or as shown in the zonal Development plan of the areas when prepared.
4.Retail Shopping & Community 4.Hotels, hospitals and sanitoria not facilities with adequate parking treating contagious diseases or mental patients, facilities provided the set back and coverage of plots are -32- such as not to constitute nuisance to the residential area.
5.Neighbourhood recreational uses 5.Non-commercial poultry and cattle including clubs and other such farms provided that a part of such building is public recreational facilities with not less than 50 ft. away from a dwelling or adequate parking facilities. property line.
6.Institutions of higher learning.
7.Bus depots railway passenger and freight station.
8.Petrol filling Stations on roads of 27 m.
width and above
9.Service and storage Yard, taxi and scooter stands.
B. 1.Retail shop and markets 1.Social and Welfare institutions Commercial (Retail)
2.Business and professional Offices 2.Petrol filling stations and Service garages with adequate set back and coverage so that there is no nuisance created in the locality.
3.Service uses shops like barbers, 3.Coal, Wood or Timber yards. tailors, laundary cleaner etc.
4.Restaurants and places or 4.Light manufacturing units employing not entertainment with adequate parking more than 4 persons with or without power places provided the goods manufactured are sold on their premises in retail and that does not create nuisance or hazard.
5.Residences, Hostels and Boarding, 5. Taxi and Scooter stand, Bus Houses and Social and welfare Terminal,(Parking areas requirements for all institutions provided they are located the above uses must be approvable) in the first and higher floors.
6. Meat, Fish, vegetable and fruit --------
markets
7. Roofed storage for legitimate ---------
retail business.
8. Public and Semi public --------
recreational Uses
9.Public utilities and building -------
(Parking area requirements for all
these recreational Uses must be
approved)
C. 1.Wholesale and retail shops 1.Truck terminals and parking
Commercial
2.Storage for wholesale uses except 2.Market, Clinic, Social and Cultural
when specifically prohibited institutions
3.Commercial and Govt. Offices 3.Dwelling for watch-and-ward (Parking,
loading and unloading requirements must be
approvable for all the above uses)
4.Restaurants and residences
provided they are located in first and
higher floors.
5.Public utilities and buildings
(Parking, loading and unloading
requirements must be approvable for
all the above uses)
D.Industrial 1.Industries which do not cause 1. Bus and Truck Terminals.
excessive, injurious or obnoxious 2. Railway passenger and freight terminal noise, vibration, smokes, gas, fumes, 3. Petrol filling Stations, Taxis and Scooter Odour, dust, effluent or other Stands, junk yards.
-33-objectionable conditions and do not 4. Dwellings for watch and ward, staff, canteen employ more than 100 workers. and recreational facilities for the employees. (Parking, loading and unloading requirements must be appprovable for all uses).
32. Firstly we may go through the best of the case of the respondent no.6, M/s. Premson Motors Udyog Pvt. Ltd., and presume that the orders were legally passed by all authorities, i.e RRDA, Pollution Control Board, under Factories Act etc. the certificates and permission granted by various authorities under different Acts and Factories Act.
In our opinion, R.R.D.A, petitioner and respondent no.6 including Pollution Control Board misunderstood the controversy and therefore, went astray. The Environment (Protection) Act, 1986, Rules framed thereunder the Environment (Protection) Rules, 1986, the Air (Prevention and Control of Pollution) Act, 1981, the Rules framed thereunder - the Air (Prevention and Control of Pollution) Rules, 1982, the Water (Prevention and Control of Pollution) Act, 1974, the Rules framed thereunder - the Water (Prevention and Control of Pollution) Rules, 1975, the Factories Act, the Industrial Disputes Act, 1947 etc. are the laws framed for different purposes. By these laws as well as by several other laws, it has been provided that no one, may it be an industry or factory, may he be a person, should be allowed to create environmental pollution in excess of the standards prescribed under the above enactments. Section 7 of the Environment (Protection) Act, 1986, applies not only to industries or factories but it also applies to persons. Section 7 says that "no person" carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental -34- pollutant in excess of such standards as may be prescribed. The Air (Prevention and Control of Pollution) Act, 1981, empowers the State Government, in consultation with the State Pollution Control Board, to notify any area within the State as for air pollution control area for the purpose of the State Act, 1981 and section 20 permits for prescribing the standard of emission from automobiles as laid down by the State Board and section 21 puts restriction on use of certain industrial plants and section 21(1) prohibits any person from establishing or operating any industrial plant in an air pollution control area without previous consent of the State Pollution Control Board. Section 22 of the said Air (Prevention and Control of Pollution) Act, 1981, further prohibits any person from operating any industrial plant in any air pollution control area, which discharge or cause or permit the emission of any air pollutant above the standards laid down by the State Board. The Water (Prevention and Control of Pollution) Act, 1974, has been enacted for prevention and control of water pollution and maintaining or restoring of wholesomeness of water and functioning of the Boards constituted under the Act of 1974 is to promote cleanliness of streams and wells in different areas of the State and also such powers are given in State and Central Boards to advise on the State Government concerning prevention, control or abatement of water pollution and their functions are given in various clauses and under section 16 and 17 for Central Board and State Board respectively. Similar provisions as they are available in the Environment (Protection) Act, 1986, are in section 25 of the Water (Prevention and -35- Control of Pollution) Act, 1974, which provides that no person shall, without previous consent of the State Board, establish or take any steps to establish any industry, operation or process or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land and further restrictions are also given. In sum and substance, prevention of such pollutions may it be air, sound or water, are concerned, it is the duty of each and every individual citizen and particularly, if the activities relating to and is being undertaken in any residential area, the duty is more onerous. Mere obtaining permission of all those authorities and maintaining standards below the standard prescribed by those laws and rules made thereunder will not make or change the nature of uses of the land from one category to another. Absolutely non-polluting industry and non-polluting commercial activity are not permissible use in the area where they cannot be established in view of the Scheme of the planned development of the city. In planned development of the city, only certain essential activities, which may fall under different categories, can be allowed in different categories, like certain shops within earmarked area of residential area are essential for comfortable living as well as are essential for residential uses of the property. Therefore, in Appendix - M, in residential area in column 3 under special appeal permission, certain services and retail shops have been allowed but with conditions that they should be located in shopping centres or in concentrated location or at a place shown in zonal development plan of the area, if prepared. Petrol -36- filling station, bus depots, railway passenger and freight station, non- commercial poultry and cattle farms also have been allowed because of this reason that these are the essential need of the residents which cannot be far away from the residential area. It appears that the R.R.D.A, to meet with the requirements of those laws enacted for specific purpose, may have directed the respondent no.6 to obtain NOCs and permission from competent authorities under those Acts but that will not change the nature and character of the activities of respondent no.6, which, in our opinion, at the most can fall under land use zone for "commercial (retial)" and that is under clause 2 in special appeal permissible uses. In view of the above reasons, the judgment relied upon by the learned counsel for the respondent no.6 to show what is industry, what is factory and what tax is leviable upon respondent no.6 under different Acts have no relevance in the present controversy. The respondent no.6 wherever undertakes the activities, he has to follow the above laws and rules and obtain the requisite permission and licenses only to fulfill the requirement of different enactments enacted for different purpose and not relevant for the purpose of construction permission from the R.R.D.A, which has its own Act and bye-laws covering the subject of construction permission.
Then the question emerges is that whether RRDA has applied its mind to the proposed construction and the purposes for which it has granted permission to the respondent no.6. From Appendix M, it is clear that in a residential area, the initial land uses permit not only residences but hostels, boarding houses with density limitations, nursery, kinder -37- garten, highschools, clinics, social and cultural institution with adequate parking facilities, retail shopping and community facilities with adequate parking facilities, neighbourhood recreational uses including clubs and other such public recreational facilities with adequate parking facilities. There may not be objection to the above uses of land and building in the residential area. Such residential area can also be used for (1) place of worship, (2) professional, commercial and Government offices, (3) "services uses" and retail shops of a neighbourhood character when located in local shopping centres or in concentrated locations or as shown in the zonal development plan of the areas when prepared. In additional to the above, other use permissible are for hotels, hospitals and sanitoria (not treating contagious diseases or mental patients). However, it has been made clear that for these uses, such permission can be granted provided the set back and coverage of plots are such as not to create nuisance to the residential area. Further permissible uses in residential area in Special Appeal are for non-commercial poultry and cattle farms subject to restriction that the building is not less than 50 ft. away from a dwelling or property line. In addition to the above, further permissible uses in residential area are institutions of higher learning, bus depots, railway passenger and freight station, petrol filling stations on roads of 27 m. width and above, service and storage yard, taxi and scooter stands. Such use of land, building and area in residential area are having direct nexus with the necessary facilities, convenience and are essentially required services for the residents of residential area. The "service garage" has not -38- been included in above permissible uses of residential use. In our opinion, it has rightly not been included in residential use.
33. The respondent no.6's contention is that in Special Appeal, building plan of the respondent was sanctioned and such use is permissible in column 2 of Appendix "M" under permissible uses in Special Appeal matters and also falls under clause 3 as it is providing service, i.e. servicing of vehicles and it may further fall under column 9 under the Special Appeal permission clause which provides for permission for "service and storage yard". In our opinion, permission granted to respondent no.6 does not fall in either of clauses. However, in "commercial uses" category, construction permission under column 2 of permissible uses under Special Appeal are for petrol filling stations and service garages with adequate set back and coverage so that there is no nuisance created in the locality. The respondent no.6 wants to convey that "service use" is the permissible use for the establishment of the "service station" of cars and also is a commercial activity. If argument of learned counsel for the R.R.D.A and learned counsel for the respondent no.6 is accepted and disputed construction permission has been granted under column 3, then RRDA misinterpreted the words, "service uses" as mentioned in column 3 under heading of "permissible uses in Special Appeal" and R.R.D.A has granted construction permission ignoring the column 2 in special appeal for commercial area. . The said column 3, which we may quote here again, is as under:-
-39- Land Use Zone Uses permitted Use permitted under special appeal A. Residential ****** "3. Services, uses and retail shops of a neighbourhood character when located in local shopping centres or in concentrated locations or as shown in the zonal Development plan of the areas when prepared."
Whereas column 2 under heading special appeal for commercial area is as under:-
Land Use Zone Uses permitted Use permitted under special appeal B. Commercial ****** *******
2.Petrol filling stations and Service garages with adequate set back and coverage so that there is no nuisance created in the locality.
34. From above columns, it is clear that "service" does not include "service garage". Even permission under column 3 can be granted only if the property is located in shopping centres or in concentrated locations or as shown in zonal development plan of the areas when prepared. Respondent's property is not situated in "local shopping centre or in (such) concentrated location", nor is of a neighbourhood character. Service garages can be allowed in commercial area and in column 2 under special appeal permission, "service garages" has been included and therefore, for service garages, construction permission could have been granted only in commercial area. The contention of the respondent no.6 cannot be accepted that the respondent's activity since is commercial in nature and it falls in column 2 under special appeal provision for residential area, then it is reading "commercial" out of the context. As per uses given in original land uses permissible in residential area, certain essential commercial activities have been made permissible, without which the residents of residential area cannot have comfortable living and -40- therefore, in residential areas, school, clinics, social and cultural institutions as well as hotels and retail shopping centres are also allowed, which are permissible commercial uses of the property in the residential area. The word, "commercial" has been used in second column of special appeal permission for residential area and that cannot be said to mean that commercial activity of any magnitude ignoring certain restrictions put in column 3 under the same column. Therefore, so far as service station of the respondent no.6 is concerned, this permission could not have been granted by RRDA even on special appeal application of respondent no.6 as the land in question falls in residential area.
35. It will be worthwhile to mention here that it is the admitted case of even respondent no.6 that in addition to providing car services which involves cleaning and washing of the cars and other products of Maruti Udyog Limited, respondent no.6 is engaged in the activity of denting and painting. Denting and painting may not strictly fall within the ambit of "manufacture" so as to hold the unit of the respondent no.6 to be an industry but at the same time, such use of property as has been allowed to respondent is not falling under any permissible uses as provided in columns for land uses for residential area in original permissible use or as such even in case of special appeal (special permission). Column no.9 against the residential permissible uses allowed the uses of the land/building for "service and storage yard, taxi and scooter stands". The word, "service" cannot be read as "service station", nor it can be separated from the words, "service and storage yard". The respondent -41- no.6's activity cannot be said to be an activity falling under "service and storage yard". This view finds support from the reason that "service garage" has been specifically included in commercial area construction permission column.
36. The words, "service", "uses" have been used in very many places in 'M' schedule but this word, whenever has been used, is required to be read with the context only. However, activity of denting and painting if can be included within any of the categories and if it can be included in clause of "service garages" then also "service garages" is permissible use in commercial area as per column B of Appendix M. Therefore, permission granted to the respondent no.6 for establishment of service garage in the residential area is in violation of the Ranci Planning Standards and Building Bye-laws, 2002.
37. Apart from the fact that there is no ambiguity that car service station and service garage are not permissible activity under Appendix - M in residential area and service garage is a commercial activity for which permission can be granted on commercial land as per clause - B of Appendix - M, it would be worthwhile to mention here that all land uses permissible under clause - A "Residential" clearly indicates that only those commercial activities are allowed in residential area which may have direct connection with the facilities, convenience and service to the residents of the locality, just like nursery, kinder garten, highschool, clinics, social and cultural institutions, retail shopping and community facilities, neighbourhood recreational uses including clubs and in special -42- appeal permission, permissible uses are places of worship, professional, commercial and Government offices, service uses and retail shops with condition that this should be of neighbourhood character and they should be located in shopping centres or shall be earmarked as such in zonal development plan obviously prepared, hotels, hospitals, sanitoria not treating contagious diseases or mental patients, non-commercial poultry and cattle farms, institutions of higher learning, bus depots, railway passenger and freight station, petrol filling stations, service and storage yards, taxi and scooter stands. All these uses have direct relation with comfortable living of the resident of the area. Wherever there is any chance of overcrowding or nuisance, caution has been mentioned in the column, providing for permission. Therefore, grant of a service station of large number of cars of a dealer having an agency of sale of cars with facilities of painting and denting with employees of 100 persons without taking care of those employees' parking space who (high ranking) may come with cars or scooters which may be in large number and without taking care of possibility of coming of vehicles of customers for servicing and repairing and their movements in residential area is contrary to rules and scheme and while granting permission the Table - 7 under clause 23.2 prescribing requirement of space for car parking off-street has been ignored, which certainly vitiates the permission granted by the R.R.D.A to respondent no.6 for establishing and running service garage of cars in the property in dispute.
38. Furthermore in commercial areas meant for retail or where -43- business, professional offices, social and welfare institutions can be constructed but they can be in higher floor and even in retail commercial area, taxi and scooter stands, bus terminals, if are allowed, then their parking area requirements are also required to approved by the R.R.D.A. If the respondent no.6 continues with its activities of servicing and painting and denting of the vehicles, in addition to sales of cars and its owned products, "Maruti" are having large number of customers, then certainly totality of the activity of respondent no.6 will create huge nuisance in the residential area.
39. However, in the facts of this case, we hold that grant of permission by other Department under other Acts, other than R.R.D.A Act and Bye-laws, are not relevant, yet we may consider the arguments advanced by learned counsel as the issues of pollution and hazards. Learned counsel for the petitioner, Mr.Jitendra Singh, Senior Advocate, vehemently submitted that in addition to impermissible use of the property in residential area, several reports have shown that it will cause pollution beyond the limit prescribed under the relevant Acts and will emit hazardous wastes and drew our attention to the calculation, which, according to learned counsel for the petitioner, itself clearly indicates, if calculated rightly, that respondent no.6's unit is creating nuisance, pollution and hazard for public health and hygiene. Learned counsel for respondent no.6, Mr. Gupta, controverted the allegation and submitted that in respondent's service station whatever denting and painting is done, it is done not under traditional way but it is done in "Painting Bake Booths" -44- fitted with three filters and denting is undertaken by using "Miracle Repair System" and not by traditional tools and hammers. Therefore, nuisance is below the prescribed level under the various schedules of the relevant provision of the Acts and all have certified by the said Departments. It is also submitted that the property is situated on National Highway and road nuisance is more as compared to any nuisance which may come out from the activity of the respondent no.6.
40. We have already observed that above fact is not of much relevance and still we are of the considered opinion that both the parties tried to impress us by submitting that either marginally water, air and sound pollution is high or marginally it is below. That issue is not much relevant in view of the fact that if an industry is not creating any air, sound or water pollution and is not emitting any hazardous material, then it does not mean that it can be established in residential area. The concept of earmarking separate areas for residential, commercial (retail), commercial, industrial has its own concept and are being taken care of by special laws and not dependent upon other laws, which are applicable to the industries, factories etc. There are different purposes for different laws as industrial laws are framed so as to given protection to the workmen and prevent exploitation of workmen and to give certain benefits to workmen and employees of the industries and factories. The Pollution Control Laws have been enacted so that workmen and employees working in even industrial area and factories may not be exposed to air, sound and water pollution as well as to hazardous wastes. Hon'ble Supreme Court in the -45- case of MSCO Pvt. Ltd. observed that it is hazardous to interpret on word in accordance with its definition in another statute or statutory instrument and so more when such statute or statutory instrument is not dealing with any cogent object. In our view, any cogent object of the Urban Development Act and its by-laws are entirely different, then the object behind the other Acts dealing subject of pollution. The safeguards given in these latter laws may be the reason to disallow construction permission of building but it is not necessary that fulfillment of requirements of pollution control standards will fulfill the requirements of provision of building by-laws. Thus, we are of the view that merely one commercial establishment or industrial establishment is not creating air, sound and water pollution or emitting hazardous materials, merely because of that reason, both establishment cannot be allowed to run in the residential area.
41. The argument of learned counsel for respondent no.6 that sound and air pollution in the area may be because of the reason that the property is situated on a National Highway and the traffic running in the National Highway are creating sound and air and other pollutions. Even if this is the position, then such pollution created by such traffic may not be reduced but certainly the pollution created by one unit adding fuel in the pollution can be stopped to make the residential area worth living. In view of the above reasons, the inspection reports dated 5th November, 2004, 24th January, 2007, 13th April, 2007, 7th July, 2009, 8th October, 2009, 14th December, 2009, 19th June, 2010, 27th July, 2010, 5th August, 2010, 26th February, 2011, 12th March, 2011 and 14th March, 2011 and lastly 26th -46- March, 2011 will not be of any help to either of the parties and those reports only indicate that pollution is either slightly more or slightly less but that is not decisive, nor very much relevant factor for deciding the controversy of permissible land uses.
42. The respondent no.6 tried take help of the definition "service" from the Finance Act, 1994 and submitted that since respondent no.6 is paying service tax, it is not an industry and took the help of section 65(9) of the Finance Act, 1994, wherein it has been defined that service station means service station or centre authrorized by any motor vehicle manufacturer to carry out service, repairing, reconditioning or restoration of any motor car or two-wheeled motor cycle manufacture by manufacturers. It may be true that such definition may have been given under section 65(9) of the Finance Act, 1994 but R.R.D.A was not concerned with this definition, when it has framed bye-laws and specifically provided that service station shall be in commercial zone of the area, then R.R.D.A could not have granted sanction for construction of service station in residential area and that too of such magnitude wherein huge land of 3826 sq.m was sought to be used for showroom cum service garage with accommodation of about 100 employees to give services to service and repair cars in large number.
43. In the case of K.Ramadas Shenoy (supra), Hon'ble Supreme Court held that the Municipal authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorized construction and the scheme is for the benefit of the residents of the -47- locality and the rights of the residents in the area are not invaded by any illegal construction and emphasized that it has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents and if the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality, the Courts will quash orders passed by Municipalities in such cases.
44. In the case of Indian Council For Enviro-Legal Action (supra), Hon'ble Supreme Court held that Municipal authorities have not taken the action required of them by law and their inaction is jeopardizing the right to life of the citizens of this country or of any section thereof, it is the duty of this Court to intervene and further held that in such a situation, the Court can make appropriate directions to ensure compliance with law and lawful directions made thereunder. In the case of Bombay Dyeing & Mag.Co.Ltd. (supra), Hon'ble Supreme Court held that interpretation of a town planning statute, which has an environmental aspect leading to application of Articles 14 and 21 of the Constitution, cannot be held to be within the exclusive domain of the Executive. In the case of M.C.Mehta (supra), Hon'ble Supreme Court held that despite passing of the laws and repeated orders of the High Court and Supreme Court, the enforcement and the implementation of the orders are utterly lacking. Hon'ble Supreme Court observed that those who own the properties that are misused have also implied responsibility towards the hardship, inconvenience, suffering caused to the residents of the locality and injuries to third parties. In the above case, Hon'ble Supreme Court held that it is -48- not only the question of stopping the misuser but also making the owners at default accountable for the injuries caused to others and similar would also be the accountability of errant officers as well, since, prima facie, such large scale misuser in violation of laws cannot take place without the active connivance of the officers and it would be for the officers to show what effective steps were taken to stop the misuser.
45. However, in the case of Greater Kailash Part II Welfare Associatiion & Ors. (supra), Hon'ble Supreme Court held that owner of a plot is entitled to use and utilize the same for any lawful purpose and to erect any construction thereupon in accordance with the existing rules and so long as such owner does not contravene any of the provisions which restrict his use of the plot in any manner, he cannot be prevented from utilizing the same in accordance with law. In Greater Kailash Part II case, the respondent no.1 was the owner of the plot in question and Hon'ble Supreme Court held that he cannot be denied the use of the plot on account of the apprehension of the appellants, particularly when he has already raised the structure in accordance with sanctioned plan. There cannot be any dispute with the proposition laid down in Greater Kailash Part II case. But in this case, the said case has no application to the facts of the case because of the fact that the Court has found that the permission which has been granted to the respondent no.6 allowing it to establish a service garage with the facility of denting and painting is impermissible use in the residential area under the bye-laws framed by the R.R.D.A.
46. In the case of Shanti Sports Club Vs. Union of India ((2009) -49- 15 SCC 705),. Hon'ble Supreme Court held that Supreme Court has taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings. Hon'ble Supreme Court observed that unfortunately despite repeated judgments by the Supreme Court and High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws as also the master plans, zonal development plans, sanctioned plans etc., have received encouragement and support from the State apparatus and as and when have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship and such actions have done irreparable harm to the concept of planned development of the cities and urban areas and it is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic condition. -50-
47. In the case of R.K.Mittal & Ors. Vs. State of U.P & Ors. ((2012) 2 SCC 232), while considering the ambit and scope of power of New Okhla Industrial Development Authority to permit users other than residential in the sectors specifically earmarked for residential use in the Master Plan of the New Okhla Industrial Development Area, Hon'ble Supreme Court held that it is not merely at the discretion of the Development Authority concerned to designate user of a site and then alter the same without following due process of law and even where such an exercise is required to be undertaken by the Development Authroity, there also it is expected of the Development Authority to act for the betterment of the public and strictly in accordance with the plans and statutory provisions and it cannot take recourse to its powers and use its discretion contrary to such provisions and that too, to frustrate the very object of the Act and exercise of power ought not to be destructive of the provisions of the Act and plans having the force of law. Hon'ble Supreme Court also held that where requisite prescribed procedure is followed, still the discretion should be exercised sparingly for achieving the object of the statute and not to completely vary or destruct the purpose for which the sector has been earmarked. Hon'ble Supreme Court further held that running of a Bank or a Commercial business by a company in the residential sector is certainly not permissible and it is in patent violation of the Master Plan, Regulations and the provisions of the Act and no power is vested in the Development Authority to permit such user and ignore the misuse for such a long period. Hon'ble Supreme Court noticed that in any -51- area earmarked for residential use, the Doctors, Lawyers and Architects can use 30 per cent of the area on the ground floor in their premises in residential sector for running their clinics/offices and for such use, the Lawyers, Architects and Doctors shall be liable to pay such charges as may be determined by the Development Authority in accordance with law and after granting an opportunity of being heard.
48. In sum and substance, in those judgments more emphasis is on protecting the residential area from any sort of nuisance and it is expected from the Officers of the Local Bodies that they will strictly follow the laws so as to protect the earmarked area for its use according to its earmarking.
49. Judgments of Union of India Vs. Delhi Cloth & General Mills, MSCO (P) Ltd. Vs. Union of India, G.L.Hotels Ltd. Vs. T.C Sarin, State of Maharashtra Vs. Mahalaxmi Stores, Qazi Noorul, H.H.H Petrol Pump Vs. Deputy Director, Employees' State Insurance Corporation are entirely on different subjects and can be relevant for the purpose of those judgments being rendered and that may be relevant for the purpose of finding the meaning of word, "manufacture", provision of section 2(12) of the Employees' State Insurance Act, 1948 and to find out when "manufacturing activity is required to be given a particular meaning or a narrower meaning and what comes under the definition of "manufacture". The above judgments have been cited by the learned counsel for the respondent no.6 to show that the respondent no.6's unit not a factory or industry. But in our opinion, that is not relevant in view of the -52- reasons given above.
50. So far as challenge to the orders passed by the various authorities, like NOC granted by the Pollution Control Board, vide Memo No.N-84 dated 9th February, 2005 under section 25 & 26 of Water (Prevention & Control of Pollution) Act and under section 21 of Air (Prevention & Control of Pollution) Act, emission consent order issued by the Jharkhand State Pollution Control Board by Reference No.1294 dated 17th June, 2005 under section 21 of the same Air (Prevention & Control of Pollution) Act and its subsequent renewals, discharge consent orders issued under Reference No.1295 dated 17th June, 2005 are concerned, we need not go into the legality of the above orders because of the reason that even if those orders stand and are held to be valid, then also the respondent no.6's permission to establish service garage in residential area cannot be justified.
51. Learned counsel for the respondent no.6 drew our attention to the sketch map showing that on the same National Highway, there are large number of service stations and the petitioner has picked up one only and that is because of rivalry and because of oblique motive.
52. We are of the considered opinion that detailed facts of above service stations are not available and it is not clear whether all these service stations have been established after obtaining requisite permission from the R.R.D.A and whether they are having same magnitude of working like servicing, denting and painting to the extent of engaging about 100 persons as employees and those permission have been granted -53- in residential area. At this place, it will be relevant to mention here that similar showrooms of others like Hyundi Motors, Ford Motors, Chevrolet, Ambassador and Shushila Motors have already been shifted to other places. Therefore, on the basis of those incomplete facts and data, respondent no.6 cannot claim his right to establish a showroom- cum-service garage in residential area. Thus, the plea of respondent no.6 is rejected.
53. In view of the above discussions, the writ petition of the petitioner is partly allowed and it is held that construction permission granted to respondent no.6 is contrary to the bye-laws framed by the Ranchi Regional Development Authority in 2001. However, the building has already been constructed. Therefore, the only relief granted to the petitioner is that respondent no.6 is directed to close its service, painting and denting activities in the disputed plot within a period of one year from the date of this order so that the respondent no.6 may make alternative arrangement of shifting his service, painting and denting garage from the plot in dispute. In view of the above orders, all interlocutory applications including I.A No.831/2011 are disposed of without any order.
(Prakash Tatia,C.J) Hon'ble Mr.Justice P.P.Bhatt, (P.P.Bhatt,J.) Jharkhand High Court, Ranchi The 17th, December, 2012 AFR/Dey