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Bombay High Court
St. Philomena Convent High School vs Union Of India on 31 March, 2009
Bench: Dr. D.Y. Chandrachud
                                       1

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                        
                    CIVIL APPELLATE JURISDICTION




                                                
                    WRIT PETITION NO.4734 OF 2004

    St. Philomena Convent High School, Nashik
    Through its Principal Sister Fatima




                                               
    having Office at Jail Road,
    Nashik Road, Nashik.                           ..Petitioner.

             Vs.




                                          
    1. Union of India,
                           
       Through the Secretary,
       Ministry of Petroleum,
       New Delhi.
                          
    2. State of Maharashtra,
       Through Collector, Nashik.
       Nashik.
          


    3. The Divisional Commissioner
       



       (Revenue), Nashik
       having his Office at the
       Divisional Commissioner's Office,
       I.S.P. Road, Nashik Road - 422 101.





    4. Nashik Municipal Corporation,
       Through the Commissioner,
       having his Office at
       Rajiv Gandhi Bhavan,





       Sangamner Road,
       Nashik Road - 422 101.


    5. The Police Commissioner, Nashik
       having his Office at




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                                          2

       Police Commissioner,
       Sharanpur Road,




                                                                         
       Trimbak Road Corner, Nashik.




                                                 
    6. The Indian Oil & Petroleum Corporation,
       Through the General Manager,
       Divisional Office, Millenium Towers,
       having his Office at Bhandarkar Road,




                                                
       Pune.

    7. Chief Controller of Explosives,
       having his office at




                                            
       Konkan Bhavan,
       Vashi, Mumbai.
                            
    8. Smt. Sadhana Ramakant Patil,
       Age 38 years,
                           
       Occupation Medical Practitioner,
       Residing at Flat No.9,
       3, Archies, Old Pandit Colony,
       Nashik.                                      ..Respondents.
           


                               WITH
        



              PUBLIC INTEREST LITIGATION NO.28 OF 2004

    1. Jitendra Naresh Bhave
       Age 34 years,





       Occupation Social Worker,
       Residing at 32, Dnyaneshwari,
       Ashwini Colony, Samantgaon Road,
       New Government Polytechnic,
       Sinnar Phata, Nashik Road - 422 101.





    2. Mrs. Sucheta Vijay Karhade,
       Major age, Occupation Doctor,
       Residing at Usha Kiran Bungalow,
       Behind Mukti Dham, Anand Nagar,




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                                       3

       Nashik Road - 422 101.




                                                                       
    3. Bharat Dattatraya Malve,
       Aged about 30 years,




                                               
       Residing at 8, Dream Vastu,
       Shri Swami Samarth Nagar,
       Saitrik, Jail Road, Nashik - 422 101.




                                              
    4. Shivaji Karbhari Handore,
       Age 28 years,
       Residing at Yash Medical
       and General Stores,




                                         
       Dr. Jadhav Hospital,
       Anant Nagar, Behind Muktidham,
       Nashik Road - 422 101.

    5. Sunil Shivram Jadhav,
                            
                           
       Age 23 years,
       Residing at 23 Gajanan Park,
       Nashik Road,
       Nashik - 422 101.                          ..Petitioners.
           


              Vs.
        



    1. Union of India,
       Through the Secretary,
       Ministry of Petroleum,





       New Delhi.

    2. State of Maharashtra,
       Through Collector, Nashik.
       Nashik.





    3. The Divisional Commissioner
       (Revenue), Nashik
       having his Office at the
       Divisional Commissioner's Office,
       I.S.P. Road, Nashik Road - 422 101.




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                                          4


    4. Nashik Municipal Corporation,




                                                                           
       Through the Commissioner,
       having his Office at




                                                   
       Rajiv Gandhi Bhavan,
       Sangamner Road,
       Nashik Road - 422 101.




                                                  
    5. The Police Commissioner, Nashik
       having his Office at
       Police Commissioner,
       Sharanpur Road,




                                              
       Trimbak Road Corner, Nashik.

                            
    6. The Indian Oil & Petroleum Corporation,
       Through the General Manager,
       Divisional Office, Millenium Towers,
                           
       having his Office at Bhandarkar Road,
       Pune.

    7. Chief Controller of Explosives,
       having his office at
           


       Konkan Bhavan,
        



       Vashi, Mumbai.

    8. Smt. Sadhana Ramakant Patil,
       Age 38 years,





       Occupation Medical Practitioner,
       Residing at Flat No.9,
       3, Archies, Old Pandit Colony, Nashik.         ..Respondents.

                                         ...





    Mr. M.S. Karnik for the Petitioner.
    Mr. Y.R. Mishra i/b S.S. Sarkar with Mr. N.R. Prajapati for
    Respondent No.1.
    Mr. S.R. Nargolkar, Assistant Government Pleader for the State.
    Mr. V.A. Gangal with Mr. A.T. Gade for Respondent No.4.
    Mr. N.S. Rodrigues i/b Desai & Diwanji for Respondent No.6.




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                                       5

                                     ....




                                                                            
                        CORAM: SWATANTER KUMAR, C.J. &
                                       DR. D.Y. CHANDRACHUD, J.




                                                    
                                  31st March, 2009.

    JUDGMENT (PER DR.D.Y. CHANDRACHUD, J.) :

1. St. Philomena Convent High School has been in existence for well over sixty years. The campus of the school at Nashik houses four additional institutions where students are admitted from Kindergarten to the Tenth Standard. Nearly 6,000 students study in these institutions. Across the road from the campus is a plot of land bearing Survey No.130-A/3 belonging to the Eighth Respondent. The school is situated on the Nashik Road. The bone of contention in these proceedings is the commencement of the business of a retail petroleum outlet by Indian Oil Corporation - the Sixth Respondent -

on the land in question.

2. The relief that has been sought in these proceedings is an appropriate declaration and a consequential writ revoking the permission granted for the allotment and construction of the retail petroleum outlet. The basis and foundation of the Petition is that the ::: Downloaded on - 09/06/2013 14:28:52 ::: 6 permissions that were granted by the Nashik Municipal Corporation were in violation of Development Control Rules. Rule 2.6(d) provides as follows :

"2.6 Petrol filling station with or without service boys - (a) The plot on which a petrol filling station with or without service buoys is proposed shall be an independent plot on which no other structures shall be constructed.
(b) Petrol station shall not be permitted within a distance of 91.5 m. from any junction on roads.
(c ) Petrol station shall not be sited on the convergence of a road curve. In case the curve is not very sharp and cars moving out of the station are completely visible to the traffic from a distance of at least 91.5 m. and vice-versa, a petrol station may be permitted on such a convex curve.
(d) Petrol station shall not be sited within a distance of 91.5 m. from the nearest gate of a school, hospital, theatre, place of assembly or stadium or such other place of public utility."

3. The contention of the Petitioner is that the permission granted by the Municipal Corporation is in breach of the provisions of Clause (d) of Development Control Rule 2.6 which stipulates that a petrol station shall not be located within a distance of 91.5 mtrs. from the nearest gate of a school.

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4. In view of the controversy that has been raised in the Petition, a Division Bench of this Court by an order dated 30th June, 2004 appointed a Commissioner to inspect the site and to submit a report to this Court upon measuring the distance with reference to the specifications contained in Development Control Rule 2.6.(d). The Commissioner submitted his report on 16th July, 2004. The Commissioner has opined that the aerial distance from the center of the main gate of the compound wall of the school upto the storage tank of the petrol pump is 45 mtrs. The Commissioner has prepared a sketch plan on which this distance as measured is shown in a green - dotted line. The Commissioner also measured the walking distance from the center of the main gate to the petrol pump and observed that the distance was 175.30 mtrs. The contention of the Petitioner is that the report of the Commissioner would show that the straight line, point to point distance between the main gate of the school and the retail petroleum outlet in question is 45 mtrs. and that consequently the permission granted by the Municipal Corporation is in breach of a mandatory provision of the Development Control Rules.

Learned counsel submitted that Development Control Rule 2.6(d) is a ::: Downloaded on - 09/06/2013 14:28:53 ::: 8 valid piece of subordinate legislation and the avowed object is to promote and protect public welfare by providing for a minimum distance of separation between petrol stations and schools, hospitals, stadia, places of assembly, theatres or other places of public utility.

The object, it is submitted, is to ensure the safety of the members of the public who would assemble at such places. In the present case, it has been urged that the welfare and safety of nearly 6,000 students of the school is in question. The permission that has been granted by the Municipal Commissioner is, in the submission, ultra vires Rule 2.6

(d) and is liable to be set aside.

5. An affidavit in reply has been filed in these proceedings by the Assistant Director of Town Planning of the Nashik Municipal Corporation. The reply contains a categoric admission that the petrol pump which has been sanctioned is situated on the other side of the road from the school. In the middle of the road in question is a divider which is approximately two and a half feet in height. The Assistant Director of Town Planning has relied on the provisions of Rule 6.6.2 of the Development Control Rules under which the Commissioner is ::: Downloaded on - 09/06/2013 14:28:53 ::: 9 vested with a discretionary power to relax the provisions of the Rules.

The affidavit states that "before relaxing the DC Rules, the Commissioner satisfied himself that the necessary no objection certificates or permissions (were) granted for the said outlet" viz. by (i) the Joint Commissioner of Explosives; and (ii) the Commissioner of Police. The operator of the petrol pump, it is stated, agreed to keep the petrol pump closed for thirty minutes at the time of the opening and closing of the school and to display road signs exhorting vehicular traffic to be careful in view of the school in the vicinity. The permission that was granted by the Municipal Commissioner, it is stated, is on the basis of the affidavit of the owner agreeing to close the petrol pump for thirty minutes at a time during closing and opening timings of the school and has been issued on the strength of the No Objection Certificate granted by the Explosives Department on 30th September, 2003. The affidavit states that the nearest petrol pump in the area is more than 2 kms. away. Finally, it has been sought to be contended that the "walking distance by a regular road"

from the gate of the school to the petrol pump will not be less than 91.5 mtrs.

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6. Affidavits in reply have also been filed in these proceedings by the contesting Respondents including the private Respondent.

The private Respondent - the Eighth Respondent - has averred that the land was purchased since Indian Oil Corporation had issued an advertisement inviting applications for the grant of a lease of a plot of land. Necessary permissions were granted by the Department of Explosives of the Government of India, by the Nashik Municipal Corporation; and by the Assistant Commissioner of Police under Rule 144 of the Petroleum Rules, 1976. An affidavit has also been filed on behalf of the Indian Oil Corporation in which reliance has been placed on the permissions granted by the diverse statutory authorities. The contention of the Corporation is that the distance of 91.5 mtrs. has to be computed as the distance which a vehicle would be required to cover in order to proceed from the petrol pump to the gate of the school. Moreover, it has been submitted that the Municipal Commissioner is vested with the discretionary power to grant a relaxation under Development Control Rule 6.2(a)(5). It has been submitted that there are other instances within the jurisdiction of the ::: Downloaded on - 09/06/2013 14:28:53 ::: 11 Nashik Municipal Corporation where petrol pumps have been permitted to be constructed in proximity to temples or educational institutions. In the circumstances, it has been contended that there is no illegality in the grant of permission. An affidavit has been filed by the Deputy Chief Controller of Explosives clarifying that he has a limited role to play in respect of the subject matter of the Petition and that a No Objection Certificate was granted in terms of Rule 144 of the Petroleum Rules, 1976.ig

7. Development Control Rules, it is well settled, constitute subordinate legislation. The legislative authority for their promulgation is contained in Section 22(m) of the Maharashtra Regional Town Planning Act, 1966. Appendix M to the Development Control Rules deals with "Land Use Classification and Permissible Use". Clause M.2.3 defines the uses to which land may be put permissibly in a residential zone (R-2). Among them in sub-clause (ii) is a petrol filling and service station not employing more than nine persons. The special written permission of the Commissioner is necessary.

Development Control Rule 2.6 lays down special provisions for petrol ::: Downloaded on - 09/06/2013 14:28:53 ::: 12 filling stations. Among them is the requirement in Clause (a) that the land must be comprised in an independent plot; in Clause (b) that the petrol filling station would not be permitted within a distance of 91.5 mtrs from any junction on a road; in Clause (c ) that a petrol station shall not be sited on the convergence of a road curve and finally, in Clause (d) that a minimum distance of 91.5 mtrs has to be preserved between the petrol station and the nearest gate of a school, hospital, utility.

theatre, place of assembly, stadium or such other place of public The underlying object of DCR 2.6 is to ensure that the operation of a petrol filling station does not pose a danger to public safety. The public interest is sought to be protected by stipulating a minimum distance between the nearest gate of a specified establishment and the petrol station. The distance has to be measured from the nearest gate.

8. The affidavits which have been filed on behalf of the Respondents seek to put forth the submission that the distance of 91.5 mtrs must be computed not in terms of the nearest point to point distance measured by a straight line but by some other methodology.

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The affidavit filed by the Assistant Director of Town Planning for instance states that the distance of 91.5 mtrs should be taken as the walking distance by a regular road. On the other hand, the affidavit filed by the Indian Oil Corporation seeks to contend that the distance of 91.5 mtrs is to be computed as the distance which a vehicle would be required to cover in order to proceed from the petrol pump to the gate of the school. Both these affidavits clearly miss the point. When DCR 2.6(d) indicates that a minimum stipulated distance has to be observed, that distance must be measured with reference to the straight line between the "nearest gate" of the school and the petrol filling station. The underlying object of DCR 2.6(d) is to protect and enhance public safety. Keeping that object in view, the only possible manner in which that distance is to be measured is to take the point to point distance measured by a straight line between the two establishments viz. the nearest gate of the school and the petrol station. Otherwise, even if a petrol station is in the immediate vicinity of a school, the provisions of DCR 2.6(d) would be liable to liable to be defeated. For example where the road in question is a one way traffic road or, for that matter, a 'U' turn is required to be made at a ::: Downloaded on - 09/06/2013 14:28:53 ::: 14 considerable distance while driving from the school to the petrol pump the actual driving distance may be enhanced. In the event of a mishap or accident, the inhabitants in the immediate vicinity are liable to be affected. Hence, the preservation of public safety would merit an interpretation which would subserve the object that is sought to be achieved by the Rule. So construed, the Rule would be entirely defeated by seeking recourse to an interpretation that has been suggested by the Respondents. In fact, the affidavit that has been filed by the Assistant Director of Town Planning suffers from a clear inconsistency. If as is sought to be postulated, the "walking distance by a regular road" was not less than 91.5 mtrs., there was no reason for the Commissioner to exercise his discretionary power under Rule 6.6.2 to relax the operative provisions of DCR 2.6(d). But the Assistant Director of Town Planning states before the Court that as a matter of fact, the Commissioner had exercised the power of relaxation. The exercise of the power of relaxation under DCR 6.6.2 postulates that the distance between the school and the retail outlet was beyond 91.5 mtrs. It is evident from the report of the Commissioner that the straight line or point to point distance between ::: Downloaded on - 09/06/2013 14:28:53 ::: 15 the nearest gate of the school and the retail outlet is 45 mtrs and within the safe margin of 91.5 mtrs prescribed by DCR 2.6(d).

9. That leads to the question as to whether there has been a valid exercise on the part of the Municipal Commissioner of the power of relaxation conferred by Rule 6.6.2. DCR 6.6.2 confers certain discretionary powers upon the Municipal Commissioner. Clause (a) thereof is as follows :

"6.6.2 Discretionary Powers -
(a) In conformity with the intent and spirit of these rules, the Commissioner may :-
(i) Decide on matters where it is alleged that there is an error in any order, requirement, decision determination or interpretation made by him in the application of these rules;
(ii) Determine and establish the location of zonal boundaries in exceptional cases, or in cases of doubt or controversy;
(iii) Interpret the provisions of these rules where the street layout actually on the ground varies from the street layout shown on the development plan;
(iv) Modify the limit of a zone where the boundary line of the zone divides a plot; and
(v) Authorise the operational construction of public service building or use of undertaking for public utility purposes only, where he finds such an authorisation to be reasonably necessary for the public convenience and welfare even if it is not permitted in any land use classification."
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It is sub clause (v) of Clause (a) that has been pressed into service on behalf of the Municipal Corporation.

10. The discretionary powers of the Municipal Commissioner have to be exercised in conformity with the intent and spirit of the Rules. Clauses (i), (ii) and (iii) are indicative of the nature of the power. Clause (i) envisages a situation of an error in an order, requirement or decision. Clause (ii) deals with exceptional cases, or cases of "doubt or controversy". Clause (iii), applies where the layout on the ground varies with the layout in the Development Plan. Sub clause (v) empowers the Commissioner to authorise the operational construction of a public service building or the use of an undertaking only for public utility purposes where he finds these to be reasonably necessary for public convenience and welfare, even if it is not permitted in any land use classification. The existence of a reasonable necessity, founded in public convenience and welfare is the touchstone. The regulations are made in the interests of planned development and are based on public interest. The power of relaxation is conditioned by public convenience and welfare.

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Relaxations cannot be allowed indiscriminately. Else a relaxation will swallow the rule. Such relaxations are not intended to subserve the interests of developers but to answer a genuine and pressing public need. Unfortunately this is lost sight of and relaxations are granted to obviate compliance with the intent and spirit of development rules.

That is a perversion of planning. No law can permit it. Judicial interpretation cannot countenance it.

11. The affidavit filed by the Assistant Director of Town Planning states before the Court that before relaxing the Development Control Rules, the Commissioner had satisfied himself about the grant of permission by the Joint Commissioner of Explosives and by the Commissioner of Police. In addition, the owner had agreed to keep the petrol pump closed for thirty minutes at the time of the opening and the closing of the school and to display traffic signs. The affidavit states that the nearest petrol pump is more than 2 kms away. In our view, the test which the Commissioner was required to apply was whether such authorization was "reasonably necessary for the public convenience and welfare". When the Commissioner assesses the ::: Downloaded on - 09/06/2013 14:28:53 ::: 18 question of public convenience and welfare, paramount importance must be given to the welfare of the users of those facilities from which Rule 2.6(d) requires the maintenance of a stipulated distance. In the case of a school it is the interest of the students, most of whom would be young children that is of paramount concern. The Commissioner relied upon the permission granted by the Joint Commissioner of Explosives. The Deputy Chief Controller of Explosives is on an affidavit before this Court to state that he has a very limited role to play in respect of the subject matter of the Petition. Rule 141 of the Petroleum Rules, 1976 provides for the grant of a licence while Rule 144 deals with the grant of a No Objection Certificate. Compliance with the provisions of the Petroleum Rules is necessary in every such case. But that cannot justify a relaxation in every case merely relying on the No Objection Certificate of the Controller of Explosives. A No Objection Certificate was granted by the Assistant Commissioner of Police on 14th July, 2003 upon which the Chief Controller of Explosives informed the Sixth Respondent that a licence would be granted for the subject premises in due course. The Municipal Commissioner cannot abdicate the discretion which is vested in him ::: Downloaded on - 09/06/2013 14:28:53 ::: 19 under Rule 6.6.2 by merely relying upon the permissions which are granted by other authorities. Absent permissions from the other statutory authorities such as the Chief Controller of Explosives under the Petroleum Rules 1976, an operator would not possess a valid licence to operate the facility. But the grant of permissions by other authorities is not dispositive of the matter insofar as the Municipal Corporation is concerned. DCR 2.6(d) still stipulates a minimum distance. The power to relax the minimum distance is an exceptional power which has to be used sparingly and with a great deal of caution. Otherwise the grant of a relaxation is liable to become the norm and a salutary provision which is made in the public interest is liable to be rendered nugatory. The condition which has been imposed in the present case that the outlet should be closed for thirty minutes during the opening and closing timings of the school is perfunctory and does not show any serious application of mind to the concerns of the welfare of the students. There ought to have been a close and considered application of mind on the part of the Municipal Commissioner to the question as to whether the provisions contained in DCR 2.6(d) should be relaxed or otherwise. That has not been ::: Downloaded on - 09/06/2013 14:28:53 ::: 20 done. The welfare of the students cannot be sacrificed on the altar of the developmental interest of the adjoining owner. An adjoining owner is free to develop his land in accordance with law. But when he chooses to house a hazardous establishment like a petrol filling station, the law steps in and tells him what distances must be maintained, if the safety of young children in schools is not to be compromised. Such a restriction is reasonable. The Commissioner, unfortunately, misconceived the nature of the provision and wrongfully exercised the power conferred upon him.

12. In these circumstances, we are of the view that the grant of relaxation by the Municipal Commissioner and the exercise of discretion under Rule 6.6.2 has not been based on an adequate and proper application of mind. At the same time, we are conscious of the fact that the discretion under the Development Control Rules is vested with the Municipal Commissioner. In the present case, it would be appropriate to direct that the Municipal Commissioner should reconsider the whole issue afresh having regard to the interpretation that has been placed by this Court on the provisions which have been ::: Downloaded on - 09/06/2013 14:28:53 ::: 21 adverted to herein above. The Municipal Commissioner shall furnish an opportunity of being heard to all the concerned parties affected thereby including the Petitioner and the Sixth and Eighth Respondents to these proceedings. Upon remand the Commissioner shall pass a reasoned order. In order to facilitate a fresh exercise being carried out in terms of the aforesaid directions, the permission granted by the Municipal Corporation is quashed and set aside. The accordance with law.

Municipal Commissioner will be at liberty to take a fresh decision in Rule is accordingly made absolute in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs.

CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.

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