Suriya Sweets v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.03.2008CORAMTHE HONOURABLE MR.JUSTICE F.M. IBRAHIM KALIFULLAW.P.No.22086 of 2007 Suriya Sweetsrep by its PartnerMrs. Parvathy Ramesh ... Petitioner vs.1. The State of Tamil Nadu rep. by its Secretary to Government, Department of Housing and Urban Development, Fort St. George, Chennai 600009.2. Chennai Metropolitan Development Authority rep. by its Member Secretary, Thalamuthu Natarajan Building, No.1, Gandhi Irwin Road, Egmore, Chennai 600008.3. Sundaram Brake Linings Ltd., rep. by its Deputy Financial Controller & Secretary, No.81, First Main Road, R.A. Puram, Chennai-28. ... RespondentsWrit petition filed under Article 226 of the Constitution of Indiafor issuance of writ of Certiorarified Mandamus Calling for the recordspertaining to the discontinuance notice issued by the 2nd respondent inhis letter No.ES1/11721/2002 dt 8.9.2006 and as confirmed by the 1strespondent in G.O.(D) No.151 dt 12.6.2007 and quash the same andconsequently forbear the respondents and their men from interferingwith the peaceful running of the business of selling sweets, vegetablesand fruits under the name and style of M/s.Surya sweets in the premisesbearing Door No.66/47, 1st Main road, R.A.Puram, Chennai 28 till thedisposal of the permission/Regularisation application dated 23.5.2002by the 2nd respondent.For petitioner : Mr.K. Premkumar For respondents : Mr. P. Subramani Government Advocate [for R-1] Mr. C. Kathiravan [for R-2] Mr. P.R. Raman [for R-3] https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner seeks to challenge the proceedings of the firstand second respondents. By order dated 12.6.2007 in G.O.(D) No.151,the first respondent has confirmed the Discontinuance Notice issued bythe second respondent in his letter No.ESI/11721/2002 dated 08.09.2006.The petitioner is running a commercial activity at No.66/47, I MainRoad, Raja Annamalaipuram, Chennai-28, where it is engaged in "sellingsweets, fruits and vegetables to the intending customers". There wasan earlier round of litigation wherein in a writ petition preferred bythe third respondent herein in W.P.No.35483 of 2002 an order came to bepassed by the Division Bench of this Court dated 7.1.2005. In thatorder the Division Bench has held as under: "24. Moreover, under rule 7(1)(x) of theDevelopment Control Rules, the number of employees shouldnot exceed 25, but, as seen from the documents submitted bySuriya Sweets when it applied for consent from thePollution Control Board show that the number of employeesin Suriya Sweets exceeds 25. We therefore hold that SuriyaSweets is not a cottage industry and the location of thecommercial establishment in the primary residential usezone is not permissible.25. As far as the permission granted by theCorporation of Chennai is concerned, it was issued as alicence for trading. We find the Chennai City MunicipalCorporation Act, 1919 was enacted prior to the Town andCountry Planning Act, 1971 as well as Pollution ControlActs. The Chennai City Municipal Corporation Act has notmade any distinction between the primary residential usezone and other zones and the fact that permission has beenobtained from the Chennai Corporation to trade in the areain question is not at all material as Suriya Sweets, in itslocation, has violated the provisions of the town andCountry Planning Act which is later enactment. Hence, wedirect the second respondent (CMDA) to take necessaryaction under the Town and Country Planning Act, 1971."(underlining is mine)2. Pursuant to the said Division Bench Order, the presentimpugned orders have been passed by the first and second respondents.The second respondent in its order dated 8.9.2006 has held that thebusiness of running sweet stall, vegetables and fruits at DoorNo.66/47, 1st main Road, Raja Annamalaipuram in a residential buildingis against the Development Control Rules and that for any change of useprior permission from the competent authority is needed. Hence, Thepetitioner was directed to discontinue the usage of the building. 3. As against the above order, the petitioner preferred anappeal and the appellate authority viz., the first respondent hereinpassed the impugned G.O.(D).No.151 dated 12.06.2007 wherein it has held https://hcservices.ecourts.gov.in/hcservices/ that in the primary residential use zone, petty shops dealing withdaily essentials and trades declared as non-offensive, occupying afloor area not exceeding 20 square meters, cottage industries withinstallations not higher than 5 HP with a maximum number of 25employees alone is permissible, but the petitioner has put into use1043 square meter of area for trading activity in the ground floor andthe first floor with 40 persons working at the time of inspection bythe second respondent. It is also held that some payment ofregularization fee of Rs. 1,56,457.50 was collected from the owner ofthe building cannot be a ground for continuation of the violationcommitted by the petitioner. The Discontinuance Order issued by thesecond respondent dated 8.9.2006 was therefore confirmed by theimpugned order. 4. Assailing the Order, Mr. Premkumar, learned counsel for thepetitioner by making a specific reference to section 56(4)(a) and (b)(ii) of the the Tamil Nadu Town and Country Planning Act, 1971, wouldcontend that the petitioner has filed an application forregularization as early as on 23.05.2002 of the alleged land/houseviolation and that so long as that application is pending the impugneddiscontinuance order cannot be made. According to the petitioner, hisapplication under Section 49 of the Act for regularization of theunauthorized construction of the building is pending and that by virtueof Section 56(3)(4) of the Act during the pendency of the saidapplication the impugned orders could not have been passed.5. Mr. P.R. Raman, learned counsel appearing for the thirdrespondent on the other hand contended that the petitioner havingadmittedly caused a serious violation by running a commercial venturein a primary residential use zone cannot be permitted to continue suchviolation by relying upon Section 49 read along with 56(3) and 47 ofthe Act. The learned counsel by making reference to the earlier orderof the Division Bench dated 7.1.05 in W.P.No.35483 and 37462 of 2002would contend that the Division Bench in its order made it clear thatthe so called Suriya Sweets run by the petitioner in a primaryresidential use zone is not permissible with a further direction to thesecond respondent to take necessary action under the Act and thereforethe impugned order issued by the second respondent for discontinuanceof the use of the land and the confirmation of the same by thefirst respondent is perfectly justified and it does not call for anyinterference.6. Having heard the learned counsel on either side and on aperusal of the earlier order of the Division Bench dated 7.01.2005 Ifind that what was carried on by the petitioner in the premises inquestion was wholly impermissible in law and before reaching the saidconclusion, the Division Bench made a detailed consideration of theclaim of the petitioner as regards its right to carry on its commercialand trading activity in the premises in question and had held thatsuch a commercial activity of the petitioner having been carried on ina primary residential zone the same cannot be permitted to becontinued. The Division Bench therefore, directed the second https://hcservices.ecourts.gov.in/hcservices/ respondent to take necessary action under the Act for the violationcommitted by the petitioner. It is therefore no longer open to thepetitioner to justify its business activity carried on in the premisesin question which is admittedly situated in a Primary Residential Zone.7. As far as the petitioner's contentions based on Section 49and 56 of the Act, I am of the view that the said contention cannotalso be sustained. The application dated 23.5.2002, is primarily forthe deviated constructions made by the owner of the premises inquestion. For such deviated constructions, the owner of the premiseshas sought for regularization. While describing the nature ofconstruction, it is true that it is also mentioned therein as to thetotal extent, where such commercial cottage industrial activities werebeing carried on. As rightly pointed out by the learned counsel forthe third respondent, the petitioner is stated to have been carrying oncommercial activities in the ground floor to the extent of 1043.05Sq.Mtrs. and Cottage industrial activities in an area about 900 Sq.Mtrs., as per the rules the permissible floor area for carrying on atrading activity is only to an extent of 20 Sq. Mtrs. Therefore thedeviation in the land use is admittedly to an extent of 1029.26 Sq.Mtrs. In the impugned orders it is stated that the total extent wheresuch activities are being carried on was to an extent on 1043.05Sq.Mtrs. The purpose of providing the safe guard under Section 56(4) tosuspend the effect of any notice issued under Section 56(1) and (2) ofthe Act is to ensure that during the pendency of the application forregularization, filed under Section 49 of the Act, any constructionmade in violation of the rules or any unauthorized use of the land orbuilding should not be altered and thereby cause any serious prejudiceto the concerned owner of the land. Such a safeguard is providedapparently with a view to protect the interest of the applicant in asmuch as if the relaxation is ultimately granted and if the structure isdemolished in the meantime, the very purpose of the appeal remedyitself may become otiose. But such a safeguard provided in the statutecannot be allowed to be misused or abused by blatant violators. Inother words the safe guard provided in the statute cannot be applied inabstract in all cases, unmindful of the ill-effects that will becaused to the public at large. To put it differently if a blatantviolator of the law attempts to take advantage of the safeguardprovided in the statute which would otherwise be detrimental to theinterest of the public at large, the court cannot remain a silentspectator or express its helplessness. As in the case on hand, thepetitioner cannot be permitted to perpetuate a violation which hasalready been found to be existing by an order of the Division Bench ofthis Court which has become final and conclusive and in fact inparagraph 25 of the order, the Division Bench has finally concludedthat what was carried on by the petitioner in the premises in questionis not a cottage industry and that the commercial establishment of thepetitioner is in a primary residential zone, which is not permissiblein law. 8. The petitioner by seeking to rely upon the regularisationapplication on payment of some fee wants to use the land and building https://hcservices.ecourts.gov.in/hcservices/ of a larger extent than what is permissible under the Regulations andthereby frustrate the order of this Court which has become final andconclusive. The illegality committed by the petitioner has beenexamined and analysed in detail by the Division Bench which concludedthat such illegality cannot be permitted to continue. In thecircumstances when the first and second respondents have only passedthe impugned orders in compliance of the earlier direction of theDivision Bench of this Court, the present attempt of the petitioner inseeking to quash the proceedings of the second respondent as confirmedby the G.O. Of the first respondent cannot be permitted to be made,especially when the violation caused by the petitioner in respect ofthe Town and Country Planning Act, in particular as regards the usageof the land and building, is demonstrated to be not permissible in law.If The petitioner is allowed to continue to perpetuate such illegalitydetriment to the interest of the public at large who are all none otherthan the residents living in the primary residential zone, as declaredby the first and second respondents under the provisions of the Townand Country Planning Act, the same will amount to paying a premium forthe blatant violation of law committed by the petitioner. 9. For all the above stated reasons, I do not find any scope tointerfere with the impugned order of the second respondent. The writpetition therefore, fails and the same is dismissed. Connected M.P. isclosed. No costs.GgsSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government, Department of Housing and Urban Development, Fort St. George, Chennai 600009. 2. The Member Secretary, Chennai Metropolitan Development Authority Thalamuth Natarajan Building, No.1, Gandhi Irwin Road, Egmore, Chennai 600008.•1 cc to Mr. P. R. Raman, Advocate SR No. 17945•1 cc to Mr. C. Karthiravan, Advocate SR No. 17687•1 cc to Mr. Premkumar, Advocate SR No. 17688JS(CO)SR/27.5.2008Order in: W.P.No.22086 of 2007 and M.P.No.1 of 2007