The residential use as per the meaning given under the regulations is kept in mind and as per the GDCR which permits public utility to be part of the residential zone which includes fueling stations, it cannot be said that the GDCR are contrary to the provisions of the statute as contended by the petitioner. This was said in the case of Farzanaben Alimamad Kasmani vs The District Collector Morbi [R/SPECIAL CIVIL APPLICATION NO. 11403 of 2020] by Mr. Justice Bhargav D. Karia in the High Court of Gujarat
The facts of the case are that respondent No.6 started construction activity for establishing petrol pump and 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 the residential area adjacent to the house of the petitioner has preferred this petition
The petitioner submitted that Clause (xxiv) of Section 2 of the Gujarat Town Planning and Urban Development Act, Act 1976 defines residence which includes use of human habitation of any land or building etc. Further, the discretion exercised by the Municipality is in arbitrary manner because if the surrounding plots would have been open land it could have been exercised but when the surrounding plots are residence, it would cause threat to the life of the persons residing in the area.
The respondent submitted that permissions granted to respondent No.6 are legal and in accordance with the GDCR as well as the provisions of all applicable laws like Petroleum Act and Rules and respondent authorities after complete investigation and inquiry have granted the permissions in exercise of their powers in a bona fide manner. It was further submitted that the petition has not been filed with clean hands as the petitioner has relied on the old GDCR to point out the defects in the permissions granted by the respondent authorities.
The Court opined that “meaning of “residential use” under the Regulations is a restricted one and is incapable of being given a wide connotation. It means the use of any land or building or part thereof for human habitation and such other uses incidental to the residential use. The very language of Regulation 2(1)(k) of the Regulations clearly depicts the intent of the framers that the expression “residential use” is not to be understood in its wider sense, in fact, it would require strict construction because all other uses have been separately defined. The different kinds of uses, therefore, have to be understood only in terms of the explanation or meaning given to them under the Regulations. The expression “such other uses incidental to residential uses” in Regulation 2(1)(k) has to take its colour from the use of the building for human habitation”.
Furthermore, “the petition is nothing but an abuse of process of law more particularly, when the petitioner has an alternative efficacious remedy under the various provisions of the Act and Rules and even if the reliance placed by the petitioner on old GDCR is not taken into consideration”. Hence, the petition was dismissed.
