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 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.

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 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 Munici