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2003 DIGILAW 297 (BOM)

MUKESH DATTOPANT MUDGAL v. COLLECTOR, NAGPUR

2003-03-11

S.B.DESHMUKH, V.C.DAGA

body2003
ORAL JUDGMENT :- The birth of this litigation is at the instance of the persons, who are in the business of "chilli grinding", with the strong political backing of a prominent political figure of the town, the Vice-President of the Umrer Municipal Council, the petitioner No. 1. The petitioners are objecting to the chilli grinding business run by the respondent No.4 herein, in Ward No. 22 of the Town Umrer, on the ground that his chilli grinding machine is causing noise and air pollution, whereas their own similarly situated chilli pounding machines located in the very same area cause no such pollution. 2. The order of review dated 30-11-2002 passed by the respondent No.2, the Regional Director of Municipal Administration, Nagpur (Annex. 13) (the RDMA for short) confirming the resolution passed by the Municipal Council dated 26-12-2000 resolving to grant "No objection" to the respondent No.4 to set up and start chilly grinding machine in Ward No. 22 of the Municipal Council, Umrer, Distt: Nagpur is the bed bock of this litigation with strong political support of one of the strong political group dominating political scenario of the town. 3. The Facts : The petitioners claim to be the residents of Ward No. 22 of the Umrer Municipal Council. Petitioner No. 1 is a Medical Practioner-cum-Politician, seating Councillor of the Municipal Council (the Council for short) and was Vice President of the Council. Respondent No. 4 is also resident of the same ward and town. 4. The respondent No.4 applied to the Council for no objection certificate to set up chilli grinding machine. The Municipal Council on 27-10-1998 resolved to constitute three member Committee and referred his application to the said three member Committee. However, no objection certificate came to be issued by the Municipal Council on 14-12-1998 in favour of the respondent No.4 without waiting for the said report. The respondent No. 4 established his chilli grinding machine in Ward No. 22 of the said Town in view of No Objection Certificate issued by the Municipal Council. 5. The Municipal Council with the change in the political equation on 30- 8-2000 resolved to cancel the No Objection Certificate issued in favour of the respondent No.4. 6. The respondent No.4 invoked the jurisdiction of the Collector under section 308 of the Maharashtra Nagar Parishad, Nagar Panchayat and Industrial Township Act, 1965 (the Act for short). 5. The Municipal Council with the change in the political equation on 30- 8-2000 resolved to cancel the No Objection Certificate issued in favour of the respondent No.4. 6. The respondent No.4 invoked the jurisdiction of the Collector under section 308 of the Maharashtra Nagar Parishad, Nagar Panchayat and Industrial Township Act, 1965 (the Act for short). The collector Nagpur vide its order dated 22-9-2000 suspended the above resolution. 7. The above suspension came to be challenged before the respondent No. 2, RDMA in Revision, which came to be allowed by Order dated 4-12-2000 holding that the grant of Certificate was without considering the report of the three member committee. 8. The Municipal Council in its General Body Meeting held on 26-12-2000 by majority decision again resolved to grant No Objection Certificate in favour of respondent No.4. The said resolution came to be challenged in a Writ Petition No. 4277 of 2000. This petition came to be dismissed in limine. The said order of dismissal was a subject matter of challenge in G.L.F. No. (e) No. 5799/01. The Apex Court was pleased to grant leave to appeal and disposed of the same vide its Order dated 10-9-2001 holding that Writ Petition was not in public interest and that it deserved hearing on merits. The Writ Petition came to be restored to the file of the High Court for being heard on merits afresh. 9. The Division Bench of this Court on remand heard the Writ Petition No. 4277 of 2000 and after hearing the parties passed an Order on 6-12-2001 observing that the petitioners should invoke appellate remedy before Collector Nagpur under the provisions of the Act and directed the Collector Nagpur to decide it by 10-1-2002 observing as under :- "We have noted that petitioner No.2 and 4 are also having a similar business in the same locality and In the event the Collector forms an opinion that such activity should be stopped, it will be open to the Municipal Council to take action against petitioner Nos. 2 and 4. The petition is disposed of. (Emphasis supplied) 10. The matter went before Collector, Nagpur for consideration in appeal. 2 and 4. The petition is disposed of. (Emphasis supplied) 10. The matter went before Collector, Nagpur for consideration in appeal. The Collector, Nagpur without considering the directions of this Court quoted above, without recording its reasons in support of conclusions drawn by him, relying upon the statements of five persons named in the order; out of which two were petitioners and remaining three were from the same family; dismissed revision vide its Order dated 28-2-2002. The Collector did not take into account the similar business carried on by petitioner Nos. 2 and 4 in the same locality and ignored the directions issued by this Court for the reasons best known to him alone. 11. The aforesaid order of the Collector was again carried in the Revision before the Regional Director of Municipal Administration, Nagpur who by his Order dated 30-11-2002 was pleased to set aside the order passed by the Collector dated 28-2-2002 and confirmed the Resolution dated 26-12-2000 passed by the General Body of the Municipal Council, Umred. 12. The aforesaid order is the subject matter of challenge in the present petition filed under Articles 226 and 227 of the Constitution of India. Consideration 13. We have heard the parties to the petition at length. When this petition came up for hearing on admission, during the course of hearing, the letter dated 28-2-2002 written to the Collector Nagpur, by the Maharashtra Pollution Control Board, was brought to our notice. The relevant part of it reads as under: "As per the above inspection report, two grinding machines are situated in the locality/premises of hospital of complainant and in city of Umred 20-25 grinding machines are situated. The officer of Board during the inspection of area near the grinding machine and also the level of noise and further has tested the level of our pollutant in area of both the grinding machine. After perusing the above report it appears that level of noise pollution in the said area (considering the (Prevention and Control) Rules, 2000 the level of noise pollution is well within the Control and there is no possibility of noise pollution. Similarly, after considering the report of our atmosphere it appears that the percentage of dust is exceeding 200 m.g./sq. met, than the prescribe limit. The reason for that may be the dust on the road and other pollutants in atmosphere. " (Emphasis supplied) 14. Similarly, after considering the report of our atmosphere it appears that the percentage of dust is exceeding 200 m.g./sq. met, than the prescribe limit. The reason for that may be the dust on the road and other pollutants in atmosphere. " (Emphasis supplied) 14. One more letter dated 27-2-2002, written to the Regional Officer, M.P.C. Board, Nagpur, by the Maharashtra Pollution Control Board, was also brought to our notice, the relevant part of which reads as under: "The summary report of his given hereinbelow. S. N. Machine by which Noise Intensity of Noise distance from pollution is measured. Pollution in Decimal grinding machine in foot. Minimum Maxi. Average Shri Gomaji Zade Chilli, Grinding 43.9 48.946.210.00 Machine. Near Wall of Dr. Mugdal Hospital 31.933.832.8217.05 Near entrance of gate of Dr. 26.928.1 27.28------ Mugdal house. 15. The perusal of the aforesaid letters and contents thereof would unequivocally go to show that the premises of respondent No.4 is near the house of petitioner No. 1. This letter further shows that there is no noise pollution. The letters record that the level of noise pollution is within the control and there is no possibility of noise pollution. The above letter further records that after considering the report of the atmosphere, it appears that the percentage of dust is exceeding 200 m.g./sq. mt. than the prescribed limit. The reason for that may be the dust on the road and other pollutants in atmosphere. 16. The second letter referred to hereinabove dated. 27-2-2002 specifically makes the reference that there are about 25 Chilli Grinding Machines, which are still in existence in the various areas of Umred. It is, thus, clear from the material available on record that the Chilly Pounding Machine run by the respondent No. 4 is not the only machine which is operating in the area of Umred town. As per the report, almost 25 Chilly Grinding Machines are operating. In respect of which no objection has been raised by the petitioners at any time. At this stage, it will not be out of place to mention that the Umrer Tahsil is predominantly chilli growing area on which the economy of the town runs. 17. Petitioner No.1 who is a sitting counsellor and was Vice President of the Municipal Council did not raise any objection with respect to other chilly Grinding Machines other than that of the respondent No.4. 17. Petitioner No.1 who is a sitting counsellor and was Vice President of the Municipal Council did not raise any objection with respect to other chilly Grinding Machines other than that of the respondent No.4. It will be curious to note that the petitioner No.6 was also running the Chilly Grinding Machine in the same area of Umred Town. In respect of his machine, none of the petitioners raised any objection. On the contrary, the said petitioner No.6 was also one of the petitioners objecting to the Chilly Grinding Machine of the respondent No.4. When this fact was repeatedly brought to the notice of this Court and when the other petitioners were finding it difficult to travel with petitioner No.6, who was also running the Chilly Grinding Machine, thought it fit to delete hit name from the array of parties and part with his company. This conduct of the petitioners speaks volume about their bona fides. 18. The record reveals that, initially, the Chief Officer had granted No Objection Certificate, the same was set aside by the Standing Committee after taking division of votes, the matter was thereafter, taken up by the Municipal Council in its General Body Meeting which resolved to grant No Objection Certificate in favour of the respondent No.4. Therefore, it is not difficult to see that the grant of No Objection Certificate or cancellation thereof was the political decision taken by the Municipal Council depending upon the strength of the group opposing respondent No.4. It is not difficult to see from the petition that the petitioner No. 1 who was the Vice President of the Municipal Council is politically against the respondent No.4. His conduct, if scanned, would reveal that he is not objecting to the other 25 Chilly Grinding Machines; which are being operated in the very town. But his objection is only to the solitary machine run by the respondent No.4. He, filed previous petition in company of another petitioners, who, themselves were running Chilly Grinding Machine in the same area of the same town. Present petition was also filed in the company of petitioner No.6 who is still running chilly pounding machine in the same area. But his objection is only to the solitary machine run by the respondent No.4. He, filed previous petition in company of another petitioners, who, themselves were running Chilly Grinding Machine in the same area of the same town. Present petition was also filed in the company of petitioner No.6 who is still running chilly pounding machine in the same area. No justification is to be found in the petition as to why no objection was taken to the Chilly Grinding Machine run by petitioner No.6 on the face of the objection raised for running Chilly Grinding Machine by respondent No.4. 19. The Honble Apex Court in the earlier round of litigation, had occasion to record positive finding that the dispute or the writ petition filed was not in the public interest meaning thereby it was in the private interest of the writ petitioners. 20. Apart from this, this Court while disposing of the Writ Petition No. 4277/02 vide order dated 6-12-2002, had an occasion to note that the petitioners 2 and respondent No.4 were also having same business in the same locality. Even then the petitioner No.2 is objecting to the chilli grinding machine run by respondent No.4 who is rival in trade. A rival in trade has no locus stand to challenge the grant of licence to other on the ground that the licence was granted illegally or suffers from defect of jurisdiction. The order of the Collector, Nagpur was rightly set aside by the respondent No. 2- RDMA, it was not a balanced order 21. The totality of the facts and circumstances referred to hereinabove would unequivocally go to show that this petition, at the instance of the petitioner No. 1 and others, is not a bona fide petition. It is nothing but to attempt on the part of the petitioners to take political revenge taking advantage of the political majority in the Municipal Council and thereby to harass respondent No.4 for no reason. It is not a bona fide litigation. The process of this Court is being abused by the petitioners. 22. Under the circumstances, the petition is dismissed with costs quantified in the sum of Rs. 5000/- payable by each petitioner to respondent No.4 within 2 weeks from today; failing which it would be open for him to recover the same in accordance with law. Petition dismissed.