Municipal Corporation of Hyderabad and Others vs M. Balatripura Sundari

P.S. Mishra, C.J.—Municipal Corporation of Hyderabad, Secunderabad Division, the Medical Officer of Health and Licensing Authority of the Corporation and the Additional Commissioner of the Corporation have preferred this appeal against the judgment by a learned single Judge of this Court under which the order refusing to grant licence to the writ petitioner - respondent, u/s 521 of the Hyderabad Municipal Corporation Act, has been set aside. It is not in dispute that the petitioner is the dealer of the Indian Oil Corporation in respect of domestic gas cylinders and she has been carrying on the business and keeping the godown and administrative office in different localities. In order, however, allegedly to have both the establishments at one place at H. No. 12/11/143, Namalagundu, Secunderabad, she made an application for the licence under the said provision of the Act to the Corporation. She also applied for the licence under the Indian Explosive Substances Act and the Rules made thereunder as well as under the Andhra Pradesh Petroleum Products (Licensing and Regulation of Supplies) Order, 1980, and mentioned the same premises. The latter too, it is said, granted the licence. But, the Corporation declined primarily on grounds inter alia that the premises fell in a purely residential use zone and the same was in unauthorised occupation of the petitioner - respondent. Learned single Judge has entered into the two grounds and held - (1) the objection that the premises fell in the residential zone is not sustainable and (2) no details have been given except a statement in the counter-affidavit about the conduct of the husband of the petitioner - respondent as respects the unauthorised occupation of the premises and accordingly interfered with the order of the licensing authority and directed as follows:

"......The respondents are directed to consider the applications of the petitioner without reference to the grounds mentioned in the impugned order and grant permission, if the same is in conformity with the relevant provisions of the Hyderabad Municipal Corporation Act and the Rules framed thereunder in other respects."

Learned single Judge has quoted in full Section 521 of the Act. It provides inter alia that except under and in conformity with the terms and conditions of a licence granted by the Commissioner no person shall keep in or upon any premises for any purpose whatever for sale, carry on, allow to be carried on, in or upon any premises, any trade or operation which in the opinion of the Commissioner is dangerous to life, health or property or likely to create a nuisance either from its nature or by reason of the manner in which or the conditions under which the same is or is proposed to be carried on. Part III of Schedule B includes gas for sale or for other than domestic use and it is not possible to hold that gas cylinders for domestic cooking which the petitioner -respondent intended to store in the premises are not covered by the provisions in Section 521 of the Act.

"Premises" in the ordinary interpretation and connotation given to it in the English language includes a building and its adjacent land. It is not difficult to read in Section 521 a very positive import to ensure that trade or operation which in the opinion of the Commissioner is dangerous to life, health or property or likely to create a nuisance either from its nature or by reason of the manner in which or the conditions under which the same is or is proposed to be carried on is controlled and permitted to be done only when the danger to life, health or property or nuisance likely to be caused by it is avoided. This provision gives to the Commissioner discretion, "to grant any licence ... or to withhold any licence". Commissioner obviously has to be satisfied that the premises proposed to be used for any business would not cause hazards which the law has intended to avoid before he decides to grant licence. The Court shall avoid entering into the satisfaction of the Commissioner and the role which it may play would be limited to the review of his actions on grounds inter alia of his doing something which in the nature of the things he would not have done, his actions are actuated with malice, he has acted on non est grounds or has otherwise acted without jurisdiction. It is indeed necessary also to know that the subject is controlled by the A.P. Urban Areas (Development) Act, 1975, and Section 15 of the said Act says, "after the coming into operation of any of the plans in a zone, no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan, provided that it shall be lawful to continue to use upon such terms and conditions as may be determined by regulations made in this behalf, any land or building for the purpose for which and to the extent to which it is being used on the date on which such plan comes into force". It is not disputed in the instant proceeding that the premises in question falls in the exclusive residential use zone. Land use, classification and uses permitted for purely residential zone are in Appendix C to the Bhagyanagar Urban Development Authority Zoning Regulations, 1981, and enumerate the permissible use and accessory uses in buildings or premises in purely residential zone. Selling and storing liquid petroleum gas is not included in the items of user of a residential premises. In cases, however, where the commercial zone boundary or a street with shopping frontage is at least 400 metres away, convenience shops are permitted on the ground floor or in a semi-detached ground floor building with no other use over it in two adjoining plots in any locality for a frozen fruit shop, 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 H.P. flour mills with less than 5 H.P.

It is indeed thus necessary, before the order of the Commissioner refusing to grant licence is interfered with, to know how the petitioner-respondent can use the premises falling in purely residential use zone for the purposes of a godown and sale of liquid petroleum gas. Learned single Judge has fallen in error, it appears, because his attention has not been drawn to the relevant provisions of law in this behalf.

We do not propose to go into why the Commissioner found the occupation of the petitioner of the premises in question unauthorised. Appellants in their counter-affidavit in the writ petition have categorically asserted that the occupation as well as construction upon the land comprising the premises are unauthorised. Nothing is shown in the proceeding from which it can be inferred that the Commissioner has committed a mistake in this behalf. We are satisfied in the instant case that petitioner has not made out a case for interference with the order of the Commissioner under which he has refused to grant trading licence in liquid petroleum gas in the premises concerned, to the petitioner.

In the result the appeal is allowed. The impugned judgment is set aside. The order refusing licence to the petitioner - respondent is restored.