V.N. Reddy and anr. Vs. Indo Burmah Petrolem Corporation, Rep., by Its Divisional Manager and ors. - Court Judgment

V.V.S. Rao, J.

1. The sixth respondent is admittedly the owner of the plot in question. It is alleged that the sixth respondent obtained a sanctioned plan from the third respondent to set up a petroleum bunk i.e., the first respondent. It is alleged that being a highly placed person, the sixth respondent used his influence to get the necessary permissions enabling the first respondent to set up a filling station.

2. The main contention of the petitioners is that plot No.730 is a residential plot and, therefore, the same cannot be used for any non-residential purpose. Reliance has been placed on the bye-laws of the fifth respondent-society. This Court issued notices to the respondents on 24.1.2001 and the respondents have since filed necessary counter-affidavits denying all the allegations.

3. Mr. Muralinarayan Bung, learned counsel for the petitioners submits that the petitioners are the Members of the 5th respondent-society. He also submits that the permission granted by the Municipal Corporation of Hyderabad and no objection certificate issued by the Commissioner of Police are illegal and contrary to Lay Out Rules. He also placed reliance on a judgment of the Supreme court in K.R.SHENOY V. UDIPI MUNICIPALITY1 in support of his contention that the Municipal Corporation cannot permit the use of the land for a non-residential purpose shown to be in the residential zone in the Lay Out.

4. Shri Deepak Bhattacharjee, learned counsel for the first respondent submits that as per the Zoning Regulations of Hyderabad Development Area 1981, petrol filling station is permitted accessory use even in a zone which is purely residential. He further submits that the bye-laws of the fifth respondent-society do not prohibit such petroleum filling stations in the residential zone and, in any event, such bye-laws have no force of law. He also placed reliance on a Division Bench of this Court dated 14.2.2001 in W.P.No.5507 of 2000 to which one of us (Satyabrata Sinha, C.J.) was a Member.

5. Shri Vilas Afzal Purkar, learned counsel for the sixth respondent submits that his client is the absolute owner of the property and he has alienated the property by creating a lease in favour of the first respondent. He also submits that petitioners have no locus standi to question the permission and no objection certificate granted by the appropriate authorities in accordance with the relevant Petroleum Order. He also further urged that if the petitioners have any grievance against the fifth respondent-society, their remedy lies in proceeding under the provisions of Section 61 of the Co-operative Societies Act by raising a Arbitration before the Arbitrator.

6. The Regulations were framed by the Hyderabad Urban Development Authority (for brevity HUDA) in exercise of their powers under sub-section (1) of Section 59 of the Andhra Pradesh Urban Areas (Development) Act,1975, (Act 1 of 1975). Regulation 6.1.2 permits various building and occupancy uses in residential zone as contained in Appendix-C.Appendix-C.1.1. reads as under:-

'C.1.1.-The following uses and accessory uses shall be permitted in buildings or premises in purely residential zone:

(i) to (xv) xx xx xx xx xx xx xx xx xx

(xvi) Petrol filling stations:--

Where the commercial zone boundary or a street with shopping frontage is at least 400m: away, convenience shops may be permitted on the ground floor or in a semi-detached ground floor building with no other use over it. Provided that the remaining area on the ground floor is utilized for parking purposes. Such shopping uses will not be permissible in more than two adjoining plots in any locality. Such shops may be used for a frozen food shop or coal shop, grain shops, ironing shop, provision shop, vegetable shop for day to day demand, milk vending shop, kerosene shop, dry cleaner's shop, hair dressing, shoe repair, tailor shops without power, coffee grinding with less than 1 HP, flour mills with less than 5 H.P. (viii) xx xx xx xx xx xx xx'

7. A Division Bench of this Court, which has considered the same in the above judgment, ruled as under:--

'Clause (xvi) of C-1.1 of Appendix-C made in terms of Regulation No.6.1.2 of the Land Use Classification and Uses permitted provides that petrol filling stations would be permitted in buildings or premises in purely Residential Zone. It is not in dispute that prior to setting up of such petrol filling station a no objection certificate is to be taken from the Commissioner of Police and various licenses are also to be obtained under various statutes.

It is therefore not a case where the respondent No.3 has been permitted to set up a petrol filling station in violation of the provisions of any Act or the statute.'

8. In Shinoy's case (supra), the Supreme Court was dealing with the Resolution passed by the Municipal Council, Udipi granting permission to the Muthadhipathi for building a cinema theatre in a place where earlier a Kalyan Mantap-cum-Lecture hall was permitted to be constructed and in fact was constructed. In the context of the facts, the Supreme Court observed thus:-

27. '..............The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority, which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative (See Yabbicom v. King, (1899)1 QB 444)'

9. The Supreme Court further held :

'28.An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.'

10. We have considered the judgment of the Supreme Court relied on by the learned counsel for the petitioners in Shinoy's case.The ratio laid down therein does not apply to the facts of this case when especially as observed supra, Appendix-C to the HUDA Regulations specifically permit the construction/establishment of a petrol filling station even in a residential zone.

11. For the reasons stated above, the allegations made in this writ petition are unsustainable. The writ petition is accordingly dismissed. No costs.