Point of Law: Permission for starting petrol pump - As per GDCR which permits public utility to be part of residential zone which includes fueling stations, it cannot be said that GDCR are contrary to provisions of statute as contended by petitioner.

JUDGMENT :

Order in Special Civil Application :

Heard learned advocate Mr.Y.N.Ravani for the petitioner, learned Assistant Government Pleader Mr.Kanva Antani for respondent No.1State, learned advocate Mr.Devang Vyas for respondent No.2, learned advocate Mr.Deepak Sanchela for respondent No.3, learned advocate Mr.Chintan Dave for respondent No.4, learned advocate Mr.M.I.Hava with learned advocate Mr.Angad Varma for respondent No.5, learned advocate Mr.Deven Parikh assisted by learned advocate Mr.S.P.Majmudar for respondent No.6 through video conference.

1. Rule, returnable forthwith. Learned advocates for the respective respondents waives service of notice of rule.

2. Having regard to the controversy which is arising in this petition in narrow compass, with the consent of the learned advocates for the respective parties, the same is taken up for hearing.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

“(A) Your Lordship may be pleased to admit and allow this petition.

(B) Your Lordship may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus directing the District Collector, Morbi to place on record all the required permissions granted to respondent No.6 for initiating and starting petrol pump on the land in question and further be pleased to cancel such permission holding the same to be contrary to the provisions of Gujarat Town Planning and Urban Development Act, 1976 and the Gujarat Comprehensive Development Regulations, 2017 and also in violation of fundamental rights of the petitioner.

(C) Pending admission, hearing and/or final disposal of this petition, Your Lordship may be pleased to direct the respondents more particularly, respondent No.5 & 6 herein to maintain statusquo qua the land in question and not to continue with the work of initiating the site for petrol pump.

(D) Such other and further orders as Your Lordships may deem just, fit and expedient be passed in favour of the petitioner.”

4. The petitioner is a resident of Dawoodi Plot No.3, Ravapar Road, Morbi and the plot of respondent No.6 is on the Ravapar Road side while residence of the petitioner is having common wall on the Dawoodi Plot side.

5. The respondent No.6 started construction activity for establishing petrol pump having agency of respondent No.5Shell India Marketing Private Limited. The respondent Nos.1 to 4 i.e. the Collector, Deputy Collector, Morbi Municipality and Gujarat Pollution Control Board granted requisite permissions as well as sanctioned the plan for construction. The petitioner therefore, being aggrieved by the activity of establishing petrol pump in residential area adjacent to the house of the petitioner has preferred this petition.

Submissions on behalf of the petitioner :

6. Learned advocate for the petitioner Mr.Y.N.Ravani submitted that the proposed construction of the petrol pump in the residential area is contrary to the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (for short ‘the Act, 1976’). It was submitted that Clause (xxiv) of Section 2 of the Act, 1976 defines residence which includes use of human habitation of any land or building etc. and Section 5 of the Act, 1976 deals with the Constitution of Area Development Authority and Section 12(2)(a) of the Act, 1976 prescribes the content of the draft development plan for designating the use of the residential purpose, commercial, agriculture and recreation purpose. It was therefore, submitted that the Area Development Authority is required to frame the Rules and Regulations by declaring the Zone as per the statutory provisions and therefore, General Development Control Regulations (for short ‘the GDCR’) can only be declared in conformity with the statutory provisions.

7. Learned advocate Mr.Ravani submitted that activity permissible in the residential area is required to be in relation to residence only like domestic shops