Applicability of Permit to run Diamond Polishing Unit in Residential Zones U/s 390 of BMC Act, 1888 DCR 1991 and DCPR 2034

Whether the Q Company sought to have obtained a License under Section 390 of B.M.C. Act, 1888?

 For the ready reference we reproduce below the said Section 390 for your ready reference:

“390. Factory of not to be newly established without permission of the Commissioner.

(1)     No person shall newly establish in any premises any factory, workshop or workplace in which it is intended that stream, water [electrical] or other mechanical power shall be employed, without the previous written permission of the Commissioner, [nor shall any person work, or allow to be worked, any such factory, workshop or workplace without such permission.]

(2)     The Commissioner may refuse to give such permission if he shall be of opinion that the establishment of such factory, workshop or workplace in the proposed position is objectionable by reason of the density of the population in the neighbourhood thereof, or will be a nuisance to the inhabitants of the neighbourhood.

[(3)    If any written permission for the establishment of a factory, workshop or workplace granted under sub-section (1) be revoked by the Commissioner in the exercise of his powers under sub-section (3) of section 479, no person shall continue or resume the working or use of such factory, workshop or workplace until such written permission is renewed or a fresh written permission is granted by the Commissioner.]”

The term “factory” is defined under Factory Act, 1948 as under:

Factory Act, 1948

Factory: S.2 (m) – “factory” means any premises including the precincts thereof –

(i) Whereon 10 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on with the air of power, or is ordinarily so carried on, or

(ii) Whereon 20 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on without the air or power, or is ordinarily so carried on – but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1962), or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place;

Explanation I: For computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account;

Explanation II: For the purpose of this clause, the mere fact than an Electronic Data Processing unit or a computer unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or par thereof.

The term `factory’ in its general sense is defined as, “a building or buildings where goods are manufactured or assembled in large quantities”.

Workplace is defined as, “the office, factory, etc. where you are employed”

Workroom is defined a, “a room in which certain work is done”.

Service Industry is defined as, “a sector of Industry providing intangibles, not products”.

Webster as under defines the term permission:

1.       The act of permitting, formal or expressed allowances or consents.

2.       Liberty or license granted to do something.

As far as Location Policy is concerned the Government have issued Industrial Location Policy vide Government Resolution No.ILP1092/3410/IND-2 dated 4th May, 1993 whereby Zone I consists of Greater Bombay and areas of Thane Municipal Corporation and Meera Bhayandar Municipal Council.

Zone II consists of Kalyan and Navi Mumbai Municipal Corporation, Ulhasnagar, Ambernath, Phulgaon – Badlapur Municipal Councils, Bhiwandi and Uran sub-region as described in Schedule III and Vasai, Virar as per Notification dated 14.5.1990. Zone III consists of remaining areas of Bombay Metropolitan Regions excluding the areas covered under Zone I and II above.

As per old Development Control Regulations for Greater Bombay, 1991—

Regulation 55 Service Industries Zone (I-1 Zone)—(1) Uses permissible in the Service Industries Zone (I-1 Zone) and the conditions governing such uses: Service industries may be permitted as indicted in Table 23 hereunder (the concerned portion) in an independent designated plot or in an I-1 Zone, or with the Commissioner’s special permission in the R-2, C 1 and C 2 zones and subject to the limitations of area permitted, maximum number of persons to be employed maximum permissible power- requirement and the special conditions given in the said Table.

 Further, watchmen’s’ quarters, canteens and banks may be permitted within a plot, building or premises for service industries.

Q company is only dealing into business of providing services which does not include any manufacturing work which may cause nuisance to the inhabitants of the neighbourhood. It may be noted that after an Industrial Revolution and Revolution in the Information & Technology Industries use of electricity, water is inevitable. No complaints were filed by resident of neighbouring society for nuisance on installation of the diamond cleaning instruments. Moreover the said place is situated in commercial area and is also well equipped with the fire fighting equipment and the entire three floors belong to the Q company and is a single building on a plot of land. It has been further informed that on the two floors viz. 8th and 9th in one part of the premises only cleaning work is done by less than ten workers and in major part of the premises assortment work is carried out which is a non-productive activity.

Mumbai High Court in Dorab Bomanji Gandiali v/s. Jamshed Kanga and Others [1991 Mh.L.J. 878: 1991(2) Bom.CR 244] where it was held that –

Section 390 (1) prohibits the commencement of any factory, workshop or workplace, where steam, water, electrical or other mechanical power is to be employed to work such factory, workshop or workplace without the written permission of the Commissioner. Sub-section (2) of this section makes clear the purpose behind the prohibition except with permission. The purpose is to prevent a strain or nuisance being caused to the neighbourhood inhabitants because of the starting of the factory, workshop or workplace. It is difficult to conceive of a watch repairer’s shop of the like business as being obnoxious in any manner whatsoever to the neighbourhood. Next the factory, workshop or workplace has to be one in which it is intended that steam, water, electrical or other mechanical power is to be used. Counsel  says use of electric lights in a watch repair establishment would attract Section 390(1). Use of electricity for illumination of the workplace is incidental and what the sub-section aims at it use of water, steam, electrical or mechanical powers for the manufacture or processing or servicing of an article. Sub-section (2) would show that the aim is to regulate factories or trades which are likely to be a health or comfort hazard to the residents of the neighbourhood, except such trades others would not be within the purview of Section 390.”

Considering the above the business of the Q company would not cause any health or comfort hazard to the residents of neighbour-hood and therefore the Q company is under no obligation to obtain the permission of the Commissioner under the provisions of Section 390 of B.M.C. Act.

It may be noted that Mumbai Municipal Corporation Act, was enacted in the year 1888 and the same was amended from time to time for more than hundred times. However the provision under reference was last amended in the year 1916. We all are aware that till the year 1945-50 Bombay was a place whose population was in thousands. However in this millennium year it has crossed mark of 1.25 crores. During this period Bombay has seen major war, many economic recession as well as reformation. It has also seen communal riots during this period of more than 75 years from 1916. Bombay has become a commercial city and it is heartthrob of India. It is a belief that if Bombay will die – India will die and the infrastructure of the whole country will collapse. India has also seen major nuclear blasts during this period and a rapid growth of technology and information industry.

It may be further noted that the object and reasons to enact Chapters XV to XX was to provide for sanitary provisions, vital statistics, bye-laws, penalties, procedure and control. It may be noted that the Q company is at the said place since last more than ten years.  BMC authorities cannot change its intention and proceed to initiate penal proceedings against licensees; who are dealing into service provider business. Moreover it is only concern of the civic authorities under Section 390 is to control nuisance; to our mind we do not think that Q company by virtue of installing diamond cleaning instruments are creating any nuisance and therefore it is open to the Q company to challenge and apply for quashing the proceedings initiated against them.

In the year 1916 what was a nuisance cannot be a nuisance in this millennium year. The section itself has become redundant and should be amended to achieve its intention of enactment.

However now with new  Development Control Promotion Regulations, 2034

Rule 34  Part VII  bans such workshops

(2) Prohibition of Factories in Residential Building in Conforming Zones: Notwithstanding anything contained in these Regulations, no permission shall be granted for establishing any factory, workshop or workplace (for the establishment of which previous permission is required under Section 390 of the MMC Act, 1888) wholly or partly on lands used for residential purposes even if such use is in conformity with these Regulations and the aforesaid Act; Provided that the uses in a residential building permissible under this Regulation which are compatible with the residential use unless & otherwise specified may be permitted on the ground floor.

Part 1 Regulation 1 of DCPR 2034 provides that , if there is a conflict between the requirements of these Regulations and those of any other rules or bye-laws, these Regulations shall prevail.

Shruti Desai

31st July,2020

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