M/S. Sri Star Steels, v. The Nellore Municipal Corporation,

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI WRIT PETITION No.26902 of 2011 ORDER:

This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioners seeking the following relief/s:- "....to issue a writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the 1st respondent in directing the petitioner to remove the iron shop without conducting enquiry and without affording any opportunity to the petitioner as per the orders of this Hon'ble Court, dated 21.04.2011 made in W.P.No.11339 of 2011 is arbitrary, unreasonable and accordingly set aside the impugned notice issued by the 1st respondent in Roc.No.2896/11G1, dated 8-7-2011 is arbitrary, unreasonable and accordingly set aside the impugned notice issued by the 1st respondent in Roc.No.

2896/11/G1, dated 8-7-11 and consequently direct the respondents 1 to 3 not to interfere with the peaceful possession and enjoyment of the iron shop of the petitioner situated in Gopuram Street, Ranganayakula Pet, Nellore Town, Sri Potti Sriramulu Nellore District and to pass such other and further orders as this Hon'ble deems fit and proper in the circumstances of the case."

[Reproduced verbatim]

2. I have heard the submissions of the learned counsel for the writ petitioner, the learned Standing Counsel appearing for respondents 1 and 2 and the learned counsel for the 4th respondent. I have perused the material record.

3. The case of the writ petitioner, in brief, is as under: The petitioner is a proprietary concern of Patan Pyari Jan. He is carrying on business of export and import of old iron in Ranganayukula Street of Nellore Town as per the permission granted by the 1st respondent-Municipal Corporation. The said business is being carried on since 1991 under the name and style of "M/s. Star Steels". Earlier,

the father of the petitioner did the same business from 1981 to 1991. After his death, the petitioner herein has been carrying on the same business, however, after changing the name to its present name. He is paying the requisite taxes to the Municipal Corporation and also to the Commercial Tax Department regularly. Several persons are carrying on similar types of businesses in the same locality viz., Ranganayakula Street of Nellore Town. While so, the 4th respondent made a complaint to the 1st respondent on 07.02.

2011 and also to the Environmental Engineer of the Pollution Control Board, Regional Office, Nellore and marked a copy of the same to the District Collector alleging that to the South of his house, there are two shops of old iron and that the proprietor of the said shops is selling steel and that during the loading and unloading of the iron material at the said shops, unbearable sound is emanating and the same is effecting the peace of the locality and that the said activity in the said shops is causing annoyance and severe inconvenience to the members of his family. In the said complaint, he had sought action for prevention of sound pollution.

The 1st respondent had forwarded the said representation of the 4th respondent to the Sanitary Inspector of the Municipality with a direction to take necessary action and report compliance within three days. The District Collector/3rd respondent, having initiated action, had addressed a letter dated 01.03.2011 to the 1st respondentCorporation as well as the Environmental Engineer for taking immediate action after conducting a personal enquiry for prevention of sound pollution. The 4th respondent having approached this Court had filed W.P.No.11339 of 2011 against the Municipal Corporation, the petitioner herein and his brother complaining against the inaction on the part of the 1st respondent and the failure on its part to take action for closure of the shops of the petitioner and for not considering his representation dated 07.02.2011.

Collector and the District Magistrate, Nellore by his letter dated 01.03.2011 had instructed the 1st respondent-Corporation to enquire into the matter personally and take necessary action, had disposed of the said writ petition with a direction to the 1st respondent to make necessary enquiry in terms of the directions of the District Collector in his letter dated 01.03.2011 and pass appropriate orders in accordance with law after due notice to the petitioner herein and his brother, as expeditiously as possible, preferably within a period of two weeks from 21.04.2011, the date of the order. However, without following the directions of this Court in the above said orders, the 2nd respondent had issued a notice dated 27.04.2011 stating that the writ petitioner is causing sound pollution and health hazard to the residents of the locality and that he has to stop the nuisance within three days from the date of the receipt of the said notice and that otherwise action will be taken as per law.

The writ petitioner had sent a reply dated 30.04.2011 denying the allegations in the said notice and inter alia stating that on account of business rivalry, the 4th respondent had made certain false allegations against the writ petitioner's business. Nevertheless, without conducting any enquiry, the 1st respondent issued a notice on 18.06.

2011 under the Zoning Regulations of the Nellore Municipal Corporation informing the petitioner that he had erected zinc sheet roof sheds at Gopuram Street, Nellore for buying and selling of iron scrap and heavy iron implements and that the same is highly objectionable, since the surrounding area of Gopuram Street is classified as a residential zone and, therefore, he is required to remove the material of iron scrap stocked in the road margin within 7 days from the date of the receipt of the notice and failing which the same will be removed departmentally and the costs incurred will be recovered from him. The petitioner, therefore, had submitted a reply dated 29.06.2011 stating that he is not aware of the orders of the High Court in W.P.No.

in the same premises for the last more than 50 years and that several other persons are also carrying on the same types of businesses in the same locality. Subsequent thereto, the 1st respondent had issued the impugned notice dated 08.07.2011 under the Zoning Regulations of Nellore Municipal Corporation stating that the petitioner had violated the orders of the District Collector dated 01.03.2011 and also the orders of this Court in W.P.No.11339 of 2011 and had not complied with the notice dated 18.06.2011. Thus, the petitioner was directed to remove the iron scrap stocked on the road margin and also iron sheet roof sheds within 7 days from the date of receipt of the notice. Hence, this writ petition is filed feeling aggrieved of the notice dated 08.07.2011, which was issued by the 1st respondent, without conducting an enquiry and without affording an opportunity of hearing to the petitioner as per the orders dated 21.04.2011 of this court in WP.No.11339 of 2011.

4. The learned counsel for the petitioner, while making submissions in line with the pleaded case, would further submit as follows:

There are several shops like the shop of the writ petitioner in the same locality and in fact there is one more such shop opposite to the residence of the 4th respondent and that, therefore, it is not correct to say that nuisance is being caused due to the business activity in the shops of the writ petitioner. Without conducting an enquiry pursuant to the orders of this Court in the writ petition filed by the 4th respondent for closure of the shop of the petitioner, the impugned action was initiated. There is no consistency in the allegations being made against the petitioner. The 4th respondent alleges that the business activity of the petitioner is causing sound pollution in the locality. However without conducting any enquiry on the allegations made by the 4th respondent, the 1st respondent had issued a notice stating that the writ petitioner had violated the Zoning Regulations and had

erected zinc sheet roof sheds at Gopuram Street and is buying and selling iron scrap and heavy iron implements and that the same is objectionable, since the locality is classified as a residential zone. Therefore, the notice that was issued to the petitioner, without conducting any enquiry, for closure of business, which is being carried on since several decades, is illegal and is liable to be set aside.

5. The case of the 1st respondent as per the averments in the counter affidavit and as per the submissions of the learned Standing Counsel, in brief, is as follows:

The Municipal Corporation had issued the notice on 27.04.2011 as per the provisions of A.P. Public Health Act, 1939. This respondent had also issued a notice dated 18.06.2011 under Zoning Regulations by duly directing the petitioner to remove his shops within a period of seven days from the date of the receipt of the said notice. In obedience to the orders dated 21.04.2011 of the High Court in WP.No.11339 of 2011, further action was initiated. When the action as per procedure established by law is in progress, the petitioner filed WA(SR).No.122774 of 2011 and had later withdrawn the same.

As it is the duty of the executive authority to take action for removal of temporary encroachments on the roads of the city, the staff of the Corporation had taken up inspections for removal of encroachments on the Gopuram street in Ranganayakulapeta as a part of regular drive as the encroachments are obstructing the free flow of traffic in that street which is a main approach road to the historical Ranganayakulaswamy temple in that Ranganayakulapeta. However, no encroachments made by the petitioner were removed at that time. Vide G.O.Ms.No.11, M.A & UD (H1) Department dated 07.01.2011 ('the GO', for short) sanction was accorded to the General Town Planning Scheme (Master Plan of Nellore Municipal Corporation along with Zonal Regulations). The Gopuram street is earmarked as mixed zone and the width of the said road is 40 feet.

has issued a certificate that there is noise pollution and suggested to take action on the representation of the 4th respondent. A memo was also issued to the Sanitary Inspector of the Corporation to take necessary action. Hence, the WP is liable to be dismissed. 5.1 In addition, the learned standing counsel would submit as follows: 'Mixed Use essentially means provision of compatible uses in a given land use, while considering its environmental impact and the socio economic needs of the society. As per the terms of the GO, compatible uses should be permitted selectively and carefully taking into consideration of community needs, environmental impact and provision for safe and easy traffic circulation and adequate parking. If a plot or site is falling in mixed use in master plan or general town planning scheme and abutting or facing a street/road, which is minimum of 18.0 mtrs wide ROW and above, the businesses of the type of the petitioner's business cannot be allowed to be carried on in that locality.

6. The case of the 4th respondent and the submissions made on his behalf, in brief, are as follows:

After the 1st respondent had considered the objections of the petitioner, the order dated 08.07.2011 was passed directing him to remove the iron shop and material stocked on the road margin. Therefore, it cannot be said that his objections are not considered and that no enquiry was conducted and no opportunity of hearing was given to the petitioner. Gopuram Street is a residential area. No business activity like the one being carried on by the petitioner shall be permitted in the said residential area. The business activity of the petitioner is not only causing nuisance to the residents of the locality but also causing traffic problem as he was stocking the material in the road margin and undertaking the loading and unloading work during the day and night times by parking the vehicles on the road and road

margins. The allegation that number of persons are doing similar businesses in Ranganayakulapeta is not correct. Except the petitioner, nobody else is carrying on iron business in that area. The writ petitioner having filed W.A(sr).No.122774 of 2011, against the orders passed in W.P.No.11339 of 2011, had withdrawn the same. The orders in the said writ petition have become final. The continuation of the business by the petitioner in the residential locality for a long time does not confer any right on him to further carry on the illegal and unauthorized business activity in violation of the Zoning Regulations.

6.1 The learned counsel for the 4th respondent would submit as follows: 'The 1st respondent had followed the orders of this Court in W.P.No.11339 of 2011. Gopuram Street in Ranganayakulapeta is classified as a residential zone. As per the Zoning Regulations and the terms of the GO, the Gopuram Street is earmarked as Mixed Use Zone. The width of the Gopuram street is 40 feet. As per the Zoning Regulations, if any plot or site is falling in the Mixed Use Zone, the use of that locality for the business in iron, like the business of the petitioner is impermissible. The petitioner is carrying on business in purchase and sale of old iron material in Gopuram Street of Ranganayakulapet of Nellore Town is not in dispute.

His business activity is causing sound pollution and nuisance and also traffic problems, as he was stocking his material in the road margin. After the 4th respondent had made a representation on 07.02.2011 to the 1st respondent and to the Environmental Engineer concerned, action was first initiated by forwarding the said complaint of the 4th respondent to the Sanitary Inspector of the Municipality. The Sanitary Inspector, having initiated action, had addressed a letter dated 01.03.2011 to the 1st respondent as well as the Environmental Engineer to take immediate action to prevent sound pollution by conducting an enquiry into the matter personally. There was no further action in the matter.

Therefore, the 4th respondent approached this Court and had filed W.P.No.11339 of 2011 complaining against the inaction of the 1st respondent. This Court while disposing of the said writ petition by orders dated 21.04.2011 had directed the 1st respondent to make the necessary enquiry in terms of the directions of the District Collector and pass appropriate orders in accordance with law after due notice to the petitioner and his brother. Pursuant thereto, a notice dated 27.04.2011 was issued by the 2nd respondent to the petitioner. The petitioner sent a legal notice dated 30.04.2011 stating his objections. Thereafter, the 1st respondent had issued a final notice dated 08.07.2011, which is now impugned in this writ petition.

By the said notice, the petitioner was instructed by the Commissioner, Municipal Corporation, Nellore to remove the iron scrap stocked on the road margin and also iron sheet roof sheds within seven days from the date of the said final notice. In that notice, a reference was made to the earlier notices particularly the notice dated 18.06.2011, wherein it is stated that the petitioner had erected zinc sheet roof sheds at Gopuram Street, Nellore and that he is indulging in selling and buying of iron scrap and heavy iron implements and that the same is highly objectionable since the surrounding area of Gopuram Street is classified as residential use zone, as per the sanctioned Master Plan of Nellore Municipal Corporation. Hence, the writ petition is liable to be dismissed.

7. In reply, the learned counsel for the petitioner, while reiterating the case pleaded and the chronology of events, had further submitted as follows:

Since the 4th respondent filed a contempt case complaining that the Engineer of the Pollution Control Board did not take any action, the said Engineer passed orders on 04.04.2014 for closure of the unit of the petitioner. The petitioner filed an appeal before the appellate

authority under Section 31 of the AIR (Prevention and Control of Pollution) Act, 1981 stating inter alia that the provisions of the said Act are not applicable to his shop and that his shop is not an industry and that more than twenty persons are carrying on similar businesses in the same locality and that without an enquiry into the matter, one person or the other is filing cases against the petitioner though his business is being carried on in the same place since 50 years. Further, without finalizing the action on the earlier notices, the authorities had issued notice stating that as per the Zoning regulations, the Gopuram street is a residential zone and, therefore, the petitioner shall not carry on his business.

7.1 Placing reliance on the Land Use Certificate issued by the Deputy City Planner, it is contended that Door nos.7-1-400, 7-1-401, 74-129, 7-4-138, 7-4-373, 7-4-413 and 7-4-414 fall in mixed land use zone as per the sanctioned master plan vide GOMs.No.11 dated 07.01.2011. It is further contended that in the said door numbers the petitioner is carrying on his business by name M/s.Star Steels having obtained a certificate of registration under the A.P. Shops and Establishments Act.

8. I have carefully gone through the pleadings and material documents. I have given earnest consideration to the facts and the submissions.

9. Now the questions that arise for determination are: 'Whether or not the locality, where the business activity of the petitioner is being carried on, is a mixed use zone? And, whether or not the petitioner's business activity is impermissible in the said zone?' 9.1 The petitioner is carrying on business in export and import of old iron is not in dispute. His said M/s.Star Steels business is being carried in two shops in Gopuram Street of Ranganayakulapeta is also not in dispute. History of the case and previous actions apart, the

present notice was issued on 08.07.2011 by the Commissioner, Municipal Corporation, Nellore stating in the subject that having unauthorisedly erected iron selling shop in Gopuram street in ward no.7 of Ranganayakulapeta, the petitioner had violated the Zoning Regulations and also the orders of the District Collector and of this Court and that he had not complied with the notice dated 18.06.2011 of the Municipal Corporation. By the said notice, the petitioner was instructed to remove the iron scrap stocked on the road margin and also the iron sheet sheds within seven days from the date of the receipt of the final notice. The earlier writ petition filed by the 4th respondent and the orders of this Court directing the 1st respondent to make necessary enquiry in terms of the directions of the District Collector dated 01.03.

2011 and pass appropriate orders in accordance with law after due notice to the petitioner, are already referred to supra. The Environmental Engineer also issued a notice to the petitioner; and, the petitioner had preferred an appeal against the orders of the Environmental Engineer is also not in dispute. To the notice of the 2nd respondent dated 27.04.2011 the petitioner had sent a reply vide legal notice dated 30.04.2011. To the notice dated 18.06.2011 issued stating that the petitioner violated Zoning Regulations, the petitioner sent a reply vide legal notice dated 29.06.2011 stating inter alia that he is not aware of the orders of the High Court in W.P.No.11339 of 2011. Having filed a WA(SR) the petitioner had withdrawn the same.

The petitioner contends that the complaint of the 4th respondent is that the business activity of the petitioner is causing sound pollution and nuisance, but, the action initiated is on the ground that the business of the petitioner is being carried on in mixed use zone and that carrying on such a business in that locality is impermissible.

established that the place where the business activity of the petitioner is being carried on is a mixed use zone and that carrying on such business in that zone is impermissible. The further case of the petitioner is that since his business under the name 'M/s.Star Steels' is being carried on in a mixed use zone but not in a residential zone, the impugned notice is not valid and is liable to be quashed. 9.2 In the light of the facts and the contentions of the parties, it is necessary to refer to the relevant contents of the G.O.Ms.No.11, which are as follows:

II. MIXED USE ZONE:

i.

Mixed Use essentially means provision of compatible uses in a given land use, by considering its environmental impact and the social-economic needs of the society. This helps in reducing the transportation needs, trip time and traffic movement considerably.

ii.

Compatible uses should be permitted selectively and carefully taking into consideration of community needs, environmental impact and provision for sale and easy traffic circulation and adequate parking.

iii.

If a Plot/Site is falling in Mixed Use Zone n the Master Plan/General Town Planning Scheme and abutting or facing street/road which is less than 18.0m wide ROW, the uses which are permissible in Residential use Zone by the Local Authority (Column A of I. Residential Use zone) are allowed.

iv.

If a Plot/Site is falling in Mixed Use in the Master Plan/General Town Planning Scheme and abutting or facing a street/road which is minimum of 18.0m wide ROW and above, the following uses are permissible. v.

If a mixed use is permitted, the requirement of corresponding parking area shall be followed for the use proposed.

Uses Permissible by Local Authority Uses Permissible by the Competent Authority Uses Permissible in Multipurpose or junior technical Residential Use Zone by schools not giving rise to smoke Local Authority noise or other nuisance Banks Petrol filling station without servicing facilities Bus depots without Printing press upto 10 HPEM not workshop employing more than nine persons Colleges Storage, Go down and Warehousing

Computer software units/IT Function Halls Enabled service Games facilities of local Kalyana Mandapams nature Both indoor and outdoor Guest Houses Nursing homes/health facilities with more than 20 beds Hostels & boarding houses Maternity homes Museums Nursing homes/health facilities with not more than 20 beds Plant nursery Printing, Dying and Varnishing Professional establishments not occupying more than 20 sqm of floor area Pumping stations Repair shops: Automobiles repair and workshops, Cycle rickshaw repairs, Type retarding, battery Charging Restaurants/Eating Places Retail shops Service shops: Floor Mills (upto 20 HPEM), Oild rotary (Upto 5 HPEM), fabrication and welding 9.3 The contents of the said G.O.

dealing with sanction accorded to the General Town Planning Scheme (Master Plan of Nellore Municipal Corporation along with Zoning Regulations) would show the uses permissible by the Local Authority and the uses permissible by the Competent Authority. The competent authority is the Director of Town and Country Planning, Government of Andhra Pradesh. The width of the street in question is not in dispute. From the contents of the GO extracted supra, it is clear that the uses permissible and which are listed in the said GO do not include any business activity like the present business activity of the petitioner.

the case and the contents of the GO, it is clear that carrying on business in export and import of iron and selling of iron in Gopuram Street of Ranganayakulapeta, which falls in mixed use zone, is impermissible. Since, in the facts and circumstances of the case, the business activity of the petitioner is impermissible in the mixed use zone, the writ petitioner cannot be heard to say that the impugned notice is illegal and that he cannot be stopped from carrying on his business activity in the subject premises in Gopuram street. Viewed thus this court finds that there is no merit in the writ petition and that the writ petition is liable to be dismissed.

10. In the result, the Writ Petition is dismissed. There shall be no order as to costs.

As a sequel, the Miscellaneous Petitions pending, if any, shall stand closed. There shall be no order as to costs. _____________________ M.SEETHARAMA MURTI, J Date:17.02.2016 Note: Issue CC today B/o JSU