IN THE HIGH COURT OF JUDICATE AT MADRAS DATED: 31.10.2011 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P.No.17727 of 2011 S.N.Thiagarajan ... Petitioner vs 1. The Commissioner, Corporation of Chennai, Ripon Building, Park Town, Chennai 600 003. 2. The Assistant Commissioner, Corporation of Chennai, Zone X, No.115, Dr. Muthu Lakshmi Salai, Adyar, Chennai 600 020. 3. The Chennai Metropolitan Development Authority, rep. by its Member Secretary, Gandhi Irwin Road, Egmore, Chennai 600 008. ... Respondents (R3 impleaded as per order dated 21.09.2011 in M.P.No.2 of 2011 in W.P.No.17727 of 2011) Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified mandamus calling for the records relating to the order dated 23.07.2011 in Z.O.X.R.D.C. No.R6/1336/2011 of the 2nd respondent and quash the same and consequently direct the respondents to grant licence in favour of the petitioner to run the Grocery Shop under the name and style of "24 x 7" Store at Door No.T-1/2, Cauvery Street, Kalakshetra Colony, Besant Nagar, Chennai 600 090. For Petitioner : Mr.A.R.L.Sundaresan, Senior Counsel for Mrs.A.L.Gandhimathi For Respondents : Mr.V.Bharathidasan, for R1 & R2 Mr.P.Tamizhmani, for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R Challenging the order dated 23.07.2011 passed by the 1st respondent vide proceedings in Z.O.X.R.D.C.No.R6/1336/2011 rejecting the application of the petitioner seeking licence to run the Grocery Shop and for a consequential direction to the respondents to grant him licence to run the Grocery Shop under the name and style of "24 x 7" Store at Door No.T-1/2, Cauvery Street, Kalakshetra Colony, Besant Nagar, Chennai 600 090, the petitioner has come up with the present writ petition. 2. It is the case of the petitioner that he has been running a Grocery Shop under the name and style of "24 x 7" Store at Door No.T 1/2, Cauvery Street, Kalakshetra Colony, Besant Nagar, Chennai 600 090, for which he got TNGST No.101 2257 dated 25.02.2010 and applied for licence for running the Grocery Shop at the aforesaid address to the 1st respondent herein. However, the 1st respondent, without considering his application, served a notice on 27.04.2010 alleging that he has been running the shop without any licence as required under Section 279 of the Chennai City Municipal Corporation Act, 1919 (in short 'CCMC Act') and he was called upon to stop the business within 24 hours. 2.1. Challenging the said notice dated 27.04.2010, the petitioner filed a Writ Petition in W.P.No.9296 of 2010 before this court and after hearing both sides, this court, by an order dated 29.04.2010 disposed of the writ petition directing the authorities to receive the application filed by the petitioner, process the same and grant licence, if it is in accordance with law. Thereafter, the petitioner continued running the business and the 1st respondent, without even inspecting the premises and without following the mandatory proceedings contemplated under the Rules and Regulations formulated under the CCMC Act, arbitrarily rejected his application for licence on the ground that he is running a Grocery and Vegetable Shop in 1,167 sq. ft., which is against the norms and procedures under the Act and he is permitted to run the Grocery Shop only in an extent of 430 sq. ft., since the area comes under primary residential zone and the 2nd respondent suddenly visited the Shop premises at the aforesaid address and locked and sealed the petitioner's shop without passing any order to that effect. 2.2. Aggrieved by the order dated 30.06.2010, the petitioner filed a Writ Petition in W.P.No.15209 of 2010 before this court challenging the same and for a further direction to the respondents to remove the seal placed over the lock of his shop and this court, by an order dated 14.07.2010, was pleased to grant interim direction directing the respondents herein to remove the seal that has been put up by them in the petitioner's shop premises, so as to enable the petitioner to remove the stocks and other articles from the https://hcservices.ecourts.gov.in/hcservices/ Shop. Pursuant to the same, the seal was removed and the petitioner continued to run the business only in an extent of 430 sq. ft. According to the petitioner, though the entire area measures an extent of 1,167 sq. ft., his shop was run only in an extent of 430 sq. ft. and hence, he applied for licence on 13.05.2010 to the 1st respondent herein. However, the 2nd respondent, again by an order dated 30.08.2010, rejected his application summarily, alleging that no business can be run in the Primary Residential Zone in more than 430 sq. ft. of land. Pursuant thereto, a notice under Section 379 (A)(1) of the Act was served on the petitioner alleging that he is using the premises without a licence from the Commissioner, Corporation of Chennai as required under Section 279 of the said Act, and therefore, he was called upon to stop the trade within 24 hours of the receipt of the notice and restore the aforesaid premises to its original state, failing compliance, the respondents will enter upon the said premises and take all such steps as may be necessary to prevent the continuance of the use of the place as per Section 379(A)(1) of the Act. In the meantime, the seal put up by the respondents at the petitioner's shop premises was removed by them and the petitioner was allowed to continue the business. Hence, on receipt of the notice, he again applied for licence to run the Grocery Shop in 425 sq. ft. on 13.10.2010 along with a Demand Draft for Rs.2,650/- and all other relevant documents. Since, no orders were passed on his application, he sent a reminder on 21.10.2010. However, till date, no orders were passed on his application dated 13.10.2010 for licence to run the Grocery Shop. 2.3. On the other hand, the officials of the respondents herein threatened the petitioner day-in and day-out to close the business for certain extraneous and unknown reasons and he is put to suffer severe hardship in the hands of the officials of the respondents. The petitioner claims that Section 279 of the Act provides that "no person shall without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, keep any lodging house, eating house, tea shop, coffee house, cafe, restaurant, refreshment room or any place where the public are admitted for repose or for consumption of any food or drink or any place where food is sold or prepared for sale." Section 287 of the said Act provides "no place within the limits of the City shall be used for any of the purposes mentioned in Schedule V without a licence obtained from the Commissioner and except in accordance with the conditions specified therein." As such, the licence for running a Provision Shop does not come within the provisions of Section 279. Schedule VI of the Act also does not provide for a separate licence for running a Grocery Shop. However, Schedule VI includes several goods and for the sale of which licence is required under the Act. Hence, the petitioner had also applied for licence for running the business in 425 sq.ft. in the said premises. However, the application is kept pending for the past one month. Further, the https://hcservices.ecourts.gov.in/hcservices/ notice dated 16.09.2010 of the 2nd respondent herein calling upon the petitioner to stop the trade within 24 hours for violation of Section 279 of the said Act is without jurisdiction and the same will not apply for the Grocery Shop of the petitioner. 2.4. In the aforesaid circumstances, the petitioner was constrained to file another Writ Petition in W.P.No.24190 of 2010 before this court challenging the notice dated 16.09.2010 issued by the 2nd respondent under Section 379A of the Act and for a consequential injunction forbearing the respondents herein from in any manner interfering with the running of his business under the name and style of "24 x 7" at Door No.T-1/2, Cauvery Street, Kalakshetra Colony, Besant Nagar, Chennai 600 090. 2.5. The said writ petition came up for hearing before this court and initially, an order of interim stay was granted and the petitioner was allowed to run the Shop. Subsequent thereto, the Writ Petition was taken up for final hearing and by an order dated 15.06.2011, this court dismissed the writ petition directing the petitioner to stop the business activity in the space meant to run Grocery Shop and keep the same completely vacant till the outcome of the proceedings is clear and a parallel direction is given to the respondents/authorities to consider the application of the petitioner dated 13.10.2010 and after making personal inspection and observing other formalities, if any, pass appropriate orders on merits and in accordance with law within a period of one week from the date of receipt of a copy of the said order. 2.6. As against the said order dated 15.06.2011, the petitioner filed a Writ Appeal in W.A.No.999 of 2011 before a Division Bench of this court and by an order dated 14.07.2011, the Division Bench disposed of the Writ Appeal with a direction to the authorities concerned to pass appropriate orders within ten days from the date of the order and communicate the same to the appellant, viz, the petitioner herein. Pursuant thereto, the 1st respondent herein, though did not conduct any inspection, however passed an order dated 23.07.2011 observing that a team of Officials of the Chennai Corporation inspected the building of the petitioner and it was found that the area of the commercial activity including the Store Room is more than 1,100 sq. ft. and the open space has also been used for keeping the Refrigerator and other materials and the Vegetable Shop attached is also not removed. Hence, it was stated that as per the CMDA Rules, the area under issue comes under Primary Residential Zone, wherein no such commercial activity can be allowed and hence, no licence can be given for running the Store in the above said Primary Residential Zone and in view of the above, the application of the petitioner was rejected. 2.7. The said rejection order dated 23.07.2011 is under https://hcservices.ecourts.gov.in/hcservices/ challenge in this writ petition on the ground that the order is passed without making the actual inspection of the Store. The 1st respondent ought to have seen that the actual area within which the petitioner is running the Store is only 362.5 sq. ft. and the staff room for the Ladies and Gents comes to about 320 sq. ft. and there is also Two Wheeler Parking area. The 1st respondent had actually given the entire measurements of the area covering the overall house premises also, while the Store is being run only within 362.5 sq. ft. The 1st respondent erred in rejecting the application of the petitioner under the guise that the area occupied by him is more than 1000 sq. ft. According to the petitioner, the impugned order of the 1st respondent herein is without any notice to him and by giving wrong measurements and thereby, the rejection order of licence to his Shop is arbitrary, unjust and unsustainable in law and liable to be set aside. 3. The 1st respondent has filed counter affidavit and has inter alia stated that the petitioner is running a Departmental Store at No.1/2 Cauveri Street, Kalakshetra Colony, Chennai 600 090 in Division 155, without a valid licence from the Corporation of Chennai. Hence, a notice was issued to him on 27.04.2010 by the respondent Corporation. Earlier, the petitioner filed W.P.No.9296 of 2010 and by an order dated 29.04.2010 passed by this court in the said writ petition, the petitioner had applied for a licence for running a provisional store in 450 sq. ft. On field verification by the Revenue Department Officials, it was noticed that the Store is run in the building measuring about 1367 sq. ft. in the primary residential zone and it is in violation of Development Control Rules, and hence, the shop was closed by the respondent Corporation. 3.1. Aggrieved by it, the petitioner filed another Writ Petition in W.P.No.15209 of 2010. As per the directions of this court vide order dated 06.08.2010 passed in the said Writ Petition, the petitioner again submitted his application on 13.08.2010 to the Corporation of Chennai for issuance of licence for a grocery shop within 430 sq. ft. His licence application was scrutinized and the premises was inspected and it was found that the petitioner is running the business in the entire building measuring about 1367 sq. ft. Since the area falls under Primary Residential Zone, no commercial activities can be entertained as per Development Control Rules (in short 'DC Rules'). Hence, the licence application of the petitioner was rejected vide Office Letter dated 30.08.2010, after which the trade was closed and sealed on 20.09.2010 by following due process of law. 3.2. The petitioner submitted a representation dated 29.09.2010 with an affidavit to the Assistant Commissioner, Zone X stating that perishable goods were inside the shop and requested to permit him to take the materials from the closed shop and he has further stated https://hcservices.ecourts.gov.in/hcservices/ therein that he will never run the shop without obtaining licence from the Corporation of Chennai. The request of the petitioner was considered and the seal was removed on 12.10.2010 so as to enable him to take the perishable goods from the closed shop. 3.3. In order to consider the licence application dated 13.10.2010, the site was inspected by the Corporation Officials. At the time of inspection, it was noticed that the shop was under repair without any permission from the respondent Corporation under DC Rules. On 21.10.2010, the petitioner had also submitted a letter addressed to the Assistant Commissioner, Zone X requesting to permit him to attend some repair works for the building and had also requested to issue the license. But, he has not submitted any application for making alteration work in the building under issue. 3.4. The building under issue is a residential building. Without obtaining permission from the respondent Corporation, the petitioner has converted the same as commercial building. As per Section 279 of CCMC Act, no person can run any Trade for consumption of food or drink or any place where food is sold or prepared for sale without licence from the respondent Corporation. The petitioner is selling food items and also soft drinks to the public without the trade licence from the respondent Corporation. 3.5. The petitioner filed yet another Writ Petition in W.P.No.24190 of 2010 against the respondent Corporation and this court vide order dated 15.06.2011 directed the petitioner to stop the business activity in the space meant to run Grocery Shop and keep the same completely vacant till the outcome of the proceedings is clear and direction was also given to the respondent to consider the application of the petitioner dated 13.10.2010 and after making personal inspection and observing other formalities, if any, pass appropriate orders on merits and in accordance with law within a period of one week from the date of receipt of a copy of the said order. 3.6. Against the said order, the petitioner filed a Writ Appeal in W.A.No.999 of 2011 before this court and a Division Bench, by an order dated 14.07.2011, was pleased to dispose of the Writ Appeal with a direction to the authorities concerned to pass appropriate orders within 10 days from the date of order and communicate the same to the appellant, viz. the petitioner herein. 3.7. As per the direction of this court, a team of officials of the respondent Corporation of Chennai consisting of an Assistant Executive Engineer, Assistant Revenue Officer, Sanitary Officer, Licence Inspector and Sanitary Inspector inspected the building situated at premises No.T1/2, Cauvery Street, Kalakshetra Colony, Besant Nagar, Chennai 600 090, in Division 155, Zone X on https://hcservices.ecourts.gov.in/hcservices/ 04.07.2011. The area of the commercial activities was measured and photograph was also taken. It was noticed that the area used for commercial purpose including the store room is more than 1100 sq. ft. The open space has also been used for keeping the refrigerator and other materials and the vegetable shop attached was also not removed. 3.8. According to the respondents, the site under issue falls under Primary Residential Zone, wherein no commercial activities can be entertained under DC Rules. Hence, the representation of the petitioner was rejected by the respondent Corporation vide Office Letter dated 23.07.2011. The impugned order of the respondent Corporation is not arbitrary. The site under issue was measured by the Corporation Engineers and that the measurement of the building has been taken as per Rules. The area being used by the petitioner is more than 1000 sq. ft., and the petitioner has kept the materials even outside the building also, and soft drinks in a big refrigerator is kept in front of the shop under issue. The petitioner has violated the DC Rules. He has not obtained trade licence under Section 279 of CCMC Act and has also failed to obtain proper permission from the authorities for conversion of the building from residential purpose to commercial purpose under planning permission Rules. 3.9. It is further stated that there are many complaints from the Residents Welfare Associations of Kalakshetra Colony regarding the conversion of residential buildings into commercial activities. There is no exemption or relaxation given by the CMDA to run a commercial shop in the Primary Residential Zone. The petitioner has violated the DC Rules as well as planning permission Rules. In the above circumstances, the 1st respondent prays that the Writ Petition is devoid of merits and is liable to be dismissed. 4. Mr.A.R.L.Sundaresan, learned Senior Counsel for the petitioner would strenuously contend that the licence for running a provision shop does not come within the provisions of Section 279 and Schedule VI of the Act also does not provide for a separate licence for running a Grocery Shop. However, Schedule VI includes several goods and for the sale of which licence is required under the Act. Hence, the petitioner had also applied for licence for running the business in 425 sq.ft. in the said premises. Without considering the application of the petitioner, the 2nd respondent has passed orders by giving wrong measurements, when the actual area within which the petitioner is running the Store is only 362.5 sq. ft. and the staff room for Ladies and Gents comes to about 320 sq. ft. and there is also Two Wheeler Parking area. Therefore, the overall house premises cannot be taken into account, as the petitioner shop is run only within 362.5 sq. ft. Hence, according to the learned counsel, the impugned order is arbitrary and https://hcservices.ecourts.gov.in/hcservices/ unsustainable in law. 5. Per contra, Mr.V.Bharathidasan, learned counsel appearing for respondents 1 and 2/Corporation would contend that the petitioner is running a Departmental Store in an area which falls under Primary Residential Zone and no commercial activities can be entertained as per the DC Rules. As per Section 279 of the Act, no person can run any trade for consumption of food or drink or any place where food is sold or prepared for sale without licence from the respondent Corporation. On inspection by the competent Officials of the Corporation, it is found that the petitioner is in occupation of more than 1000 sq. ft. area. Therefore, it is mandatory on the part of any person who runs a Shop to obtain licence and the impugned order passed by the respondent Corporation rejecting licence to the petitioner to run the Grocery Shop is in conformity of the provisions of the Act and the DC Rules. 6. Mr.P.Tamizhmani, learned counsel appearing for the CMDA/impleaded respondent, on instructions, would contend that in a Primary Residential Zone, commercial activities cannot be permitted without valid licence, proper plan conversion and other required site permission from the CMDA. Therefore, the action contemplated by the first respondent Corporation as per the provisions of the Act and the DC Rules are in conformity with the said provisions and the Rules and unless the petitioner gets proper site permission, he cannot be allowed to run the Shop. For the contention that the petitioner pursuant to the order made by this court has made an application to the CMDA, learned counsel submits that they have to receive the application and process further and till date, the concerned authority has not received any such application from the petitioner. 7. Heard the learned counsel for the parties and perused the relevant material documents annexed to the typed set of papers. 8. A circumspection of the facts of the case would reveal that the petitioner is running a Grocery Shop under the name and style of "24 x 7" Store at Door No.T 1/2, Cauvery Street, Kalakshetra Colony, Besant Nagar, Chennai 600 090, for which he got TNGST No.101 2257 dated 25.02.2010 and applied for licence for running the Grocery Shop at the aforesaid address, which is required under Section 279 of CCMC Act. It is seen that the 1st respondent had issued a notice to the petitioner on 27.04.2010 calling upon him to stop the business within 24 hours. Immediately, the petitioner moved this court in W.P.No.9296 of 2010 challenging the said notice and this court after hearing the counsel on either side passed an order on 29.04.2010 directing the authorities to receive the application filed by the petitioner, process the same and grant licence, if it is in accordance with law. Thereafter, the petitioner https://hcservices.ecourts.gov.in/hcservices/ applied for licence for running the provision store in 400 sq. ft. and on field verification, it was noticed that the store was run in a building measuring about 1367 sq.ft. in the primary residential zone, which is in violation of the DC Rules and the shop was closed. 8.1. Aggrieved by the same, the petitioner again moved this court in W.P.No.15209 of 2010, wherein, this court by an order dated 14.07.2010, issued the following interim direction to the respondents: "Mr.V.Bharathidasan, learned counsel takes notice on behalf of the respondent Corporation, and he is directed to get instructions. Post the matter on 23.07.2010. In the meantime, there shall be an order of interim direction, directing the respondents to remove the seal that has been put up by them in the petitioner's property as to enable the petitioner to remove the articles of the respondents and again seal the premises. The petitioner is directed to approach the officials of the respondents even today itself so that they can keep open the seal and allow the petitioner to remove the articles kept inside the premises." 8.2. Pursuant to the said order, final order was passed in W.P.No.15209 of 2010 on 06.08.2010 and accordingly, the petitioner submitted an application to the Corporation of Chennai on 13.08.2010 for issuance of licence to run a grocery shop within 430 sq. ft. and the said application was scrutinized and the premises was inspected and it was found that the petitioner is running the business in the entire building measuring about 1367 sq. ft. Hence, the petitioner's application was rejected by the respondents vide letter dated 30.08.2010 on the ground that the area falls under Primary Residential Zone and no commercial activities can be entertained as per DC Rules. 8.3. Thereafter, a notice dated 16.09.2010 under Section 379 (A)(1) of the CCMC Act was served on the petitioner alleging that he is using the premises without a licence from the Commissioner, Corporation of Chennai as required under Section 279 of the Act and therefore, he was called upon to stop the trade within 24 hours of the receipt of the notice and restore the premises to its original state, failing compliance, the respondents will enter upon the said premises and take all suc steps as may be necessary to prevent continuance of the use of the place as per Section 379(A)(1) of the Act. In the meantime, the seal put up by the respondents at the petitioner's shop premises was removed by the respondents and the petitioner was allowed to continue the business. Hence,