1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.5994 OF 2010 (NAGPUR RAILWAY STATION DUKANDAR SANGH...VS.. STATE OF MAHARASHTRA & OTH.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. P.V. Vaidya, Advocate for Petitioner. CORAM : V.C.DAGA & A.B.CHAUDHARI, JJ. DATE : DECEMBER 15, 2010. Heard learned counsel for the petitioner. Perused the petition. This is a petition filed by un-registered union said to be “Nagpur Railway Station Dukandar Sangh” with some other individual petitioners challenging notice issued by Municipal Corporation, Nagpur directing them to stop use of cylinder, kerosene burner in the shops allotted to them under the Deed of Licence, which carries a specific condition that they shall not use any explosive material in the shops below flyover allotted to them with further condition not to carry any manufacturing activities which may cause damage or danger to the flyover. At this stage, it is relevant to mention that most of these petitioners neither have licences under the Shops and Establishments Act nor permission of the City of Nagpur Corporation under Section 347 of the City of Nagpur 2 Corporation Act, 1948 to run eating house. Under Section 237 of the Act it is power of the Corporation to regulate, manufacture, preparation and sale of food and milk, preparation of tea, coffee and milk products in the hotels including eating houses and premises for housing eatables within the limits of the City of Nagpur Corporation. Chapter XX of the Act provides for maintenance of standards of the eating houses and to issue directions from time to time. Since the petitioners do not have licences under the provisions of the City of Nagpur Corporation Act their business activities are neither supervised nor regulated by the Corporation. Some of the petitioners have sought to produce licences alleged to have been obtained by them somewhere in the year 2000. None of them pertains to the shops in question. The subject shops below flyover were constructed in the year 2004-2005. One of the petitioners Shri Ajay Balkrushna Chavhan has produced licence to run hotel business, dated 24th February, 2000 (See Page 60-A) when the subject shop was not in existence. The said document is produced just to mislead the Court to show that he is running Hotel under a valid licence. Needless to mention that all these petitioners are carrying on business of hotel without any licence in an unauthorized manner as such no legal right is created in their favour. Such persons cannot get any relief in writ jurisdiction of this Court. As a fall out of the public interest litigation the Corporation appears to have issued impugned notices to all the petitioners since their activities have exposed the flyover to a serious danger. 3 One can conveniently imagine the heat generated by the heavy use of Braziers, commercial heavy gas cylinders, coal, fire wood, constant use of heavy explosive material like kerosene in the shops located below the flyover causing serious danger and damage to the concrete ranging from minor cosmetic blemishes to more serious external cracking, delamination and spalling, internal micro-cracking and chemical changes. Use of fire and its intensity tend to cause high temperature in the concrete mass which have insufficient continuous pores to relieve the vapor pressures, the tensile stresses causing cracks to the structure. The high vapour pressure is causing internal delamination that are normally associated with external cracking. The spalling will occur when the surface layer at the delamination falls away and exposes the internal concrete. In sum and substance, due to continuous heavy heat steel is bound to loose its strength and chemical changes occurred therein are bound to cause loss of strength in the concrete. The heating process directly heat the surface of the concrete. In these circumstances, looking to the danger to which flyover is exposed, which is being used by heavy trucks, heavy vehicles, tractors with trollies and fire brigade vans, the preventive steps taken by the Corporation cannot be faulted. Even otherwise use of explosive material and act of running hotel business is in contravention of the license conditions under which petitioners are occupying the shops below flyover. 4 Judicial notice of the fact can also be taken that once the premises is taken on lease then its rampant misuse for running business without following regulatory measures, without obtaining licences in that behalf needs to be dealt with iron hands. If the Corporation has taken steps, may be at a belated stage, no fault could be found with the exercise of powers in absence of any allegations of malafides. As a matter of fact power is exercised in public interest. The petitioners are directed to immediately stop use of commercial gas burners and stoves, coal, firewood and /or kerosene in the shop premises as directed by the Corporation. The petition is, thus, without any substance, the same is dismissed in limine with no order as to costs. JUDGE JUDGE RR..