Hebbal Gangenahalli Layout vs Corporation of the City of Bangalore

Rama Jois, J.—This Writ Petition is presented by Hebbal Gangenahalli Layout Residents Association, which is the first petitioner and its members who are residents of the layout, who are petitioners-2 to 9, questioning the legality of the licence granted by the first respondent in favour of the third respondent for running power looms in the premises belonging to her, which is situate in front of house of petitioner No. 2 and near the residential houses of the other petitioners, in a residential locality.

Brief facts of the case, are these: Gangenahalli layout is a residential layout formed by the then City Improvement Trust Board constituted under the C.I.T.B. Act, 1948, which has since been substituted by the Bangalore Development Authority (''the B.D.A'' for short) under the provisions of the Bangalore Development Authority Act, 1976. A Residential Colony called Weavers Colony was also formed by the Cubbonpet Silk Handloom Weavers Co-operative Society which faces the Gangenahalli lay out. The Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as ''the Planning Act'') was enacted by the State Legislature to provide for regulation of planned growth of land use and development and for the making and execution of town planning Scheme in the State. Under the Planning Act, for the Bangalore Metropolitan area, the Planning Authority is the B.D.A. In accordance with the provisions of Section 9 to 13 of the Act, an Outline Development Plan (''the O.D.P'' for short) for the City of Bangalore, prepared by the BDA and approved by the State Government was published in the Official Gazette on 13-7-1972 under the ODP Gangenahalli Layout as also the Weavers Colony fall under Residential Zones. Under the Zonal Regulations installing Power Looms are not permitted in a residential locality. Section 14 of the Planning Act provides for the enforcement of the O.D.P. and the Regulations. It reads:

"14. ENFORCEMENT OF THE OUTLINE DEVELOPMENT PLAN AND THE REGULATIONS:

(1) On and from the date on which a declaration of intention to prepare an outline is published under Sub-section (1) of Section 10, every land-use, every change in land-use and every development in the area covered by the plan shall conform to the provisions of this Act, the Outline Development Plan and the regulations, as finally approved by the State Government under Sub-section (3) of Section 13."

The petitioners have averred that the third respondent had secured a licence for running two twisting and one winding machine with the aid of 5 H.P. electric motor some time in March 1972. A copy of the licence issued to the third respondent by the Commissioner, Corporation of the City of Bangalore, is produced as Annexure-D, which reads:

FORM OF LICENCE

Licence No. 6145/72-73

Name: Smt R. Hemavathi

Residence:

(5) Five H.P. for two twisting one winding, for one reeling and one doubling at premises No. 8, Weavers Colony, Bangalore. For the year ending 31st March 73.

Rental value of the premises

Licence fee of Rs. 5/-

Has been credited on: 28-3-72.

(FOR DAY POWER ONLY 6 a.m. to 6 p.m.)

Vide challan No. 200.

(Round seal).

Sd/ Commissioner, Corporation of the City of Bangalore."

It appears that though licence had ''been issued for running twisting and winding machines, the third respondent had also installed power-loom machinery. In the circumstances, the residents of Gangenahalli Layout appear to have lodged a complaint before the Commissioner of the Corporation about the running of power-looms in a residential locality. In the circumstances, a notice dated 29-9-1978 was issued to the third respondent by the Deputy Commissioner of the Corporation. It reads:

"Copy of letter No. DC(D) PS. 439/78-79 dated 29-9-78 from the Corporation Officer, Bangalore (Deputy Commissioner) DEV Corporation of Bangalore.

ORDER

There are complaints from residents of Gangenahally that a twisting and winding factory (powerlooms) being run at No. 8, II main road, Gangenahalli layout by Smt. R. Hemavathy, produces a lot of noise which is a great nuisance to the neighbourers. I have inspected the premises and have found that his powerloom unit is situated in a residential locality and operation of the machinery creates a loud noise which would be a nuisance.

According to the outline development plan only handlooms are permitted in a residential zone.

A show cause notice was issued to Smt. Hemavathi who filed a reply before this authority. Smt. Hemavathi states that she got the premises from the Cubbonpet Weavers'' Cooperative Society, that the colony is meant for weavers and that no nuisance is caused.

A reference was made to the Bangalore Development Authority who are also the Town Planning Authority. The Secretary of the B.D.A. has replied that Site No. 8 of Gangenahalli is purely a residential site and is not meant for non-residential purpose. It may also be seen that the full name of the cooperative society which distributed sites is Cubbonpet Silk Handloom Weavers Primary Cooperative Society, which shows that the intention is to assist handloom weavers only.

I am satisfied that the operation of the twisting and winding machinery causes great nuisance to the neighbors. Moreover, as per Section 505 of the Karnataka Municipal Corporation Act, 1976, the Corporation authorities are obliged to abide by the provisions of the Karnataka Town and Country Planning Act, 1961, which means that the Zoning Regulations prescribed by the planning authority have to be strictly observed. According to the Regulations, the power-loom unit (twisting and winding) is not permitted in a residential zone.

Hence, u/s 358 of the Karnataka Municipal Corporations Act, 1976, I hereby require Smt. Hemavathi to discontinue the use of premises No. 8, II Main Road, Gangenahalli Layout (also known as No. 8, I Cross, Weavers Colony, Gangenahalli), for the purpose of running powerloom machinery/twisting and winding) within three days of the receipt of this order.

Sd/-Dillip Rau, Deputy Commissioner (DEV) Corporation of Bangalore.

The facts set out in the notice clearly indicated that the locality being a residential locality, power-looms could not be installed in the premises of the third respondent, as it was contrary to the Zoning Regulations and in view of Section 505 of the Karnataka Municipal Corporations Act, 1976, no licence or permission could be given for running a power-loom in a residential locality by the authorities of the Corporation. The petitioners have alleged that though such notice was issued, no action was taken for stopping the running of the power-looms in the premises of the third respondent. On the other hand, in the year 1984, the Medical Officer of the Corporation exercising the powers of the Commissioner of the Corporation, granted licence to run the power-loom. Copy of the order of the Medical Officer of the Corporation is produced as Annexure-B. It reads:

"Notes and orders:

Smt. R. Hemavathi is running the twisting winding and a reeling machine with five H.P. Corporation licence at premises No. 8, Weavers Colony, Gangenahalli. Now she has requested for change of machinery to powerloom and twisting and winding instead of reeling machine. This may be considered.

Sd/-Dy. Health Officer, Corp. of the City of Bangalore, Bangalore-2, 21-6-84.

For inspection: 29-6-84.

Granted change of machinery

Sd/-Medical Officer, Corporation of the City of Bangalore, Bangalore, 24-7-84.

R.K. (City),

No. R3PR138/84-85

Sd/-8-2-85 for Commissioner, Corporation of the City of Bangalore, Bangaiore-2."

After the above licence was granted, the petitioners presented this Writ Petition praying for the issue of a Writ quashing the licence granted to the third respondent and also for the issue of Writ of Mandamus directing the authorities of the Corporation to ensure the compliance of the provisions of the Planning Act and to prevent the third respondent from running the power-loom in the residential area.

Statement of objection has been filed on behalf of the B.D.A., which is the planning authority for the City. The statement reads:

"1. The Cubbonpet Silk Handloom Weavers Primary Cooperative Society has formed a layout in Sy. Nos. 23, 24, 25, 27, 32, 33, 34, and 36 of Ganganahalli in Hebbal Gangenahalli 1st Stage. About 85 sites were formed by the society and they are reconveyed by the Bangalore Development Authority (B.D.A.).

Site No. 187 measuring 30'' X 45'' was released as a residential site to the said society and it was registered in favour of the respondent No. 3-Hemavathi.

It is submitted that the layout was handed over to the respondent No. 1-B.C.C. and it is being maintained by it.

No licence has been issued to the respondent-3 by the respondent No. 2 to carry on any industrial business in site No. 187-site No. 8, II Main Road.

The sites were formed only for the residential purpose and if the respondent No. 3 has put up any industrial establishment it has not been approved either by the erstwhile CITB or by the BDA. That is to state that the change of residential to non-residential purpose by the respondent No. 3 is not approved."

From the above statement it is clear that the house of the third respondent is in a residential locality and the Zoning Regulations do not permit the establishing of power-loom and the planning authority has not given any approval for the establishment of an industry like power-loom in the locality.

In the statement filed by the Corporation, the above factual position has not at all been controverted except stating that the petitioners are put to strict proof to show that the licence granted is contrary to law. In the statement of objection filed by the third respondent also, the factual position, namely, the area in question is a residential locality, is not controverted. In fact, the statement made by the Planning Authority in its statement extract above, is not and could not be controverted in view of the contents of the O.D.P. and the Zoning Regulation''s. The stand taken, however, on behalf of the third respondent is that the licence had been granted by the Corporation prior to the coming into force of the O.D.P. and further there are number of other powerlooms also established in the same locality, which have not been challenged by the petitioners in this Writ Petition and therefore the licence granted to the third respondent is not liable to be set aside.

The learned Counsel for the petitioners pointed out that no licence to install powerloom had been granted prior to the coming into force of the O.D.P. He pointed out that the licence granted in favour of the third respondent-Corporation in the year 1972 prior to the date on which the O.D.P. and the Zoning Regulations came into force, was only for running twisting, winding and reeling machines, as could be seen from Annexure-D, extracted earlier, and submitted that the petitioners had no objection for running the said machinery as they do not cause much noise and do not result in any nuisance or sound pollution, as caused by the power-looms. The learned Counsel pointed out that the licence to run power-loom was given only on 24-7-1984 long after the O.D.P. and the Zoning Regulations came into force and the said licence being plainly contrary to the Zoning Regulations, they are liable to be set aside.

In support of the contention that no licence can be granted by a local authority in contravention of the statutory provisions regulating the types of activities which are permitted in a residential zone, the learned Counsel relied on the Judgment of the Supreme Court in Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others,

The relevant portion of the Judgment, on which he relied, reads:

"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 unauthorised 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 recommended 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 of the powers of the Municipality the Courts will quash orders passed by Municipalities in such cases."

The learned Counsel also relied on the Judgment of the Supreme Court in the case of Rural Litigation and Entitlement Kendra, Dehradun and Others Vs. State of U.P. and Others, in support of his contention that every individual has got a right to have the protection of environment in accordance with law. The relevant portion of the Judgment is paragraph 12, which reads:

"12. The consequence of this order made by us would be that the lessees of lime-stone quarries which have been directed to be closed down permanently under this Order or which may be directed to be closed down permanently after consideration of the report of the Bandopadhyay Committee, would be thrown out of business in which they have invested large sums of money and expended considerable time and effort. This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affection of air, water and environment. However, in order to mitigate their hardship, we would direct the Government of India and the State of Uttar Pradesh that whenever any other area in the State of Uttar Pradesh is thrown open for grant of lime-stone or dolomite quarrying, the lessees who are displaced as a result of this order shall be afforded priority in grant of lease of such area and intimation that such area is available for grant of lease shall be given to the lessees who are displaced so that they can apply for grant of lease of such area and on the basis of such application, priority may be given to them subject, or course, to their otherwise being found fit and eligible. We have no doubt that while throwing open new areas for grant of lease for lime stone or dolomite quarrying, the Government of India and the State of Uttar Pradesh will take into account the considerations to which we have adverted in this order."

The learned Counsel relied on Section 505 of the Karnataka Municipal Corporations Act, 1956. It reads:

"505. Exercise of powers by a corporation to be in conformity with the provisions of the Karnataka Town and Country Planning Act, 1961 - Notwithstanding anything contained in this Act, a corporation or any officer or other authority required by or under this Act to exercise any power, or perform any function or discharge any duty -

(i) with regard to any matter relating to land use or development as defined in the explanation to Section 14 of the Karnataka Town and Country Planning Act, 1961, shall exercise such power, or perform such function or discharge such duty with regard to such land use or development plan or where there is no development plan, with the concurrence of the Planning Authority;

(ii) shall not grant any permission, approval or sanction required by or under this Act to any person if it relates to any matter in respect of which compliance with the provisions of the Karnataka Town and Country Planning Act, 1961, is necessary unless evidence in support of having complied with the provisions of the said Act is produced by such person to the satisfaction of the corporation or the officer or other authority, as the case may be."

The learned Counsel submitted that in view of Section 505 of the Act, the first respondent had no authority to issue licence to the third respondent to run powerlooms in her premises, as it contravenes the O.D.P. and the Zonal Regulations, promulgated under the Planning Act.

In our opinion, the contention urged by the learned, Counsel for the petitioner is unexceptionable, in view of the ratio in Ramdas Shenoy''s case. Further, the law has been settled even with reference to the O.D.P. and the Zoning Regulations prepared under the Planning Act, in the case of M.D. NARAYAN v. CORPORATION OF THE CITY OF BANGALORE, W.P. No. 3386 of 1981 and W.P. No. 3387/81, in which a Division Bench of this Court has held that the Corporation authorities cannot grant any licence or permission contrary to the O.D.P. and the Zoning Regulations. The Division Bench Judgment of this Court has been confirmed by the Supreme Court in B.K. Srinivasan and Others Vs. State of Karnataka and Others,

As stated earlier, on facts, there is no dispute. The Gangenahalli Layout in which the petitioners have their houses, is a residential locality under the O.D.P. The layout formed by the Cubbonpet Handloom Weavers Cooperative Society, which faces the layout of the petitioners, is also in residential zone under the O.D.P. Section 14 of the Planning Act expressly provides that the provisions of the O.D.P. and the Zoning Regulations annexed thereto, are enforceable. The relevant portion of the Zoning Regulations attached to the O.D.P. reads:

"ZONING REGULATIONS 1972

Approved by Government along with the Outline Development Plan of Bangalore

XXX XXX XXX

ANNEXURE-1

Uses of land (a) that are permitted (b) that may be permitted under special circumstances by the Planning Authority in the different zones.

RESIDENTIAL ZONE

A. Dwellings Boarding houses (non-commercial rooming houses, churches, temples and other places of worship, schools offering general educational courses, libraries, general purposes farm agricultural garden, nurseries, non-profit clubs and semi-public recreational uses, customary home occupations (vide annexure-2, table-3), neighbourhood shops.

B. Municipal, State and Central uses, public utility, cemetries, gold clubs green houses, hospitals for human care except those meant primarily for mental treatment, eonvalscene houses, santoria, Philanthropic uses, transient visitor''s camps; removal of gravel, clay, sand or stone from the premises, diary and poultry farms; hatchery, animal raising or stables, provided that no animal or fowls other than house pets are kept closer than 75'' to adjoining property line, filling stations and huller, flour mills and coffee grinding works, restaurants, neighbourhood shops including service industry without power or with power upto 5 H.P. as per list given in table No. 4".

XXX XXX XXX

TABLE

I Illustrative list of industries entitled in Light Industrial Zone

Sl. Description No.

XXX XXX XXX

Handlooms and power looms.

XXX XXX XXX

TABLE No. IV

Illustrative list of service industries that the permissible on appeal in residential zone and in retail business zones under special circumstances by the Planning Authority:

Sl. Description

No.

Bread and bakeries

2 Confectionery candles and sweets

3 Biscuit making

4 Ice, Ice-Cream and Creamery

5 Cold Storage (Small Scale)

6 Aerated water and fruit beverages

7 Flour Mills

8 Automobile, scooter and cycles services and repair workshops

9 General jobbing and machine shops

10 Furniture (wooden and steel) (Note- covered area to be not more than 2400 sfts)

11 Printing, book binding, embossing etc

12 Laundry, dry-cleaning and dyeing facilities

13 Household utensil repair, welding, soldering, patching and polishing (kalai)

14 Photographs, printing (including sign boards painting)

15 Vulcanizing

16 Tailoring

17 Handlooms (small scale)

18 Valvet embroidered shoes

19 Art-wares and silk screen printing and batik work

20 Jewellery, gold ornaments and silver wares

21 Mirrors and photo frames

22 Umbrella assembly

23 Bamboo and cane products

24 Sports goods repair shops

25 Musical instruments repair shop

26 Optical lenses grinding, watch and pen repairing

27 Radio repairs shop

28 Electric Lamp fittings

29 Shoe making repairing."

As can be seen from the above provisions of the Zoning Regulations, only service industries are permitted within a residential locality. Power-loom is not a service industry and therefore not permitted to be established in a residential zone. On the other hand, there is an express provision providing for the establishment of powerloom in light industrial zone. The O.D.P. was replaced by the Comprehensive Development Plan with effect from 18-10-1984. The C.D.P. holds the field and is enforceable in view of Section 24 read with Section 14 of the Planning Act and Section 505 of the Municipal Corporations Act. There is no dispute that corresponding provisions in the C.D.P. and Zoning Regulations annexed thereto, are exactly similar to the O.D.P. and the Zoning Regulation annexed thereto. Therefore, it is clear that the licence granted in favour of the third respondent for establishing a powerloom vide Annexure-B dated 24-7-1984 is plainly without authority of law and therefore has to be set aside.

Sri Mohandas N. Hegde, the learned Counsel for the third respondent strenuously contended that as there were a few other power-looms in the locality and as the petitioners have chosen to challenge only the licence granted to the third respondent, any interference by this Court with the licence granted to the third respondent would lead to a situation in which only the third respondent would be prevented from running the powerloom, whereas other persons would continue to run the powerloom and on this ground alone the Writ Petition is liable to be dismissed. He also submitted that cancellation of the license would result in depriving her of her income and cause hardship to her.

Sri M.R. Nayak, the learned Counsel for the petitioners submitted that at the time when the Writ Petition was filed, only the third respondent was running the power-loom and therefore the petitioners challenged the legality of the licence granted to the third respondent and that subsequently when a few licences had been given for establishing power-looms, Writ Petitions have been filed challenging the licences granted to them also and they are pending before this Court. He also further submitted that once we hold that the grant of licence for running power loom in a residential zone is illegal and quash the licence issued to the third respondent on the ground that it is contrary to the Zoning Regulations promulgated under the Planning Act and in view of Section 505 of the Corporation Act, it would become obligatory for the Corporation authorities to obey the law in respect of all the residential localities in the City either at the time of considering the application for grant or renewal of licence for running powerlooms. He also submitted that actually the petitioner was also running Power Looms at premises No. 72 of Sunkalpet and therefore the difficulty pleaded was also not real.

We find no substance in any of the points urged for the third respondent. The licence issued to her being contrary to law has to be set aside. She is at liberty to shift the Power Looms to industrial Zones. Further, the fact that there are other persons to whom such licences have been illegally issued is no ground to decline to quash the licence issued to respondent No. 3. As rightly pointed out by the learned Counsel for the petitioners once the law is laid down by this Court the first respondent is bound to conform to the law so declared and to ensure the implementation of the provisions of the Planning Act.

In the result, we make the following order:

(i) The Writ Petition is allowed;

(ii) The licence granted to the third respondent vide Annexure-B dated 29-6-1984 only in so far it relates to run power-looms is set aside;

(iii) The third respondent shall forthwith stop running the powerlooms in the said premises.

(iv) A Writ of Mandamus shall also issue to the first respondent to ensure that the third respondent does not run the power-loom in the premises in question and to conform to the provisions of the Karnataka Town and Country Planning Act, 1961, and the provisions of the C.D.P. and the Zoning Regulations made thereunder as required of them u/s 505 of the Karnataka Municipal Corporations Act while considering the application for grant or the renewal of licences for running powerlooms in residential zones.