IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 15.06.2011 Coram:- The Hon’ble Mr. Justice T.RAJA Writ Petition No.24190 of 2010 and M.P. Nos.1/10 & 1/11 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.Muthulakshmi Salai, Adyar, Chennai 600 020. ... Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus as stated therein. For petitioner : Mr.AR.L.Sundaresan, Sr. Counsel for Mrs.A.L.Gandhimathi For respondents : Mr.V.Bharathidasan. O R D E R The petitioner herein seeks for issuance of a writ of certiorarified mandamus to call for the records pertaining to the Notice, dated 16.09.2010, issued by R-2/Assistant Commissioner, Corporation of Chennai, Zone X, Adyar, Chennai, under Section 379A of the Chennai City Municipal Corporation Act (in short ‘Act IV of 1919'), quash the same, and consequently forbear the respondents and their subordinates from in any manner interfering with the running of business by the petitioner under the name and style of ’24 x 7’ Store at Door No.T ½, Cauveri Street, Kalashetra Colony, Besant Nagar, Chennai-90. https://hcservices.ecourts.gov.in/hcservices/ 2. Mr.A.R.L. Sundaresan, learned Senior Counsel appearing for the petitioner, at the first instance, outlining the facts of the case, would submit that the petitioner is running a grocery shop under the name and style of ’24 x 7’ Store at Door No.T 1/2 , Cauveri Street, Kalashetra Colony, Besant Nagar, Chennai, and he also obtained TNGST Code vide TNGST No.101 2257, dated 25.02.2010. Thereafter, he applied to the 1st respondent/Commissioner, Corporation of Chennai, seeking licence to run the grocery Shop at the aforesaid address. The said Authority, without even considering the Application for licence, served a notice dated 27.04.2010 on the petitioner stating that the grocery shop was being run without a valid licence as required under Section 279 of Act IV/19 and called upon the petitioner to stop the business within 24 hours. Aggrieved over the said Notice, the petitioner preferred a Writ Petition in W.P. No.9296 of 2010 and this Court, after hearing both sides, by order dated 29.04.2010, disposed of the 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. The first respondent, without even inspecting the premises of the petitioner and without following the mandatory procedure contemplated under the Rules and Regulations formulated under Act IV/19, by order dated 30.06.2010, arbitrarily rejected the Application for licence on the ground that the shop was being run in an area of 1167 sq. ft. which is against the norms and procedure under the Act and that only in an extent of 430 sq. ft, if at all permitted, the petitioner could run the grocery shop as the vicinity in which the premises is located, falls under Primary Residential Zone. Consequently, the 2nd respondent visited the shop and locked and sealed it without passing any prior order to do so. Challenging the order, dated 30.06.2010, the petitioner filed W.P. No.15290 of 2010 seeking for a direction to the respondents to remove the lock and seal. This Court, after taking note of the fact that the petitioner is running only a grocery shop which is also usefully utilized by the residents of the area, granted an interim direction on 14.07.2010, directing the respondents to remove the seal enabling the petitioner to clear the stocks and other articles from the shop. Pursuant thereto, the seal was removed and the petitioner continued to run the business over an extent of 430 sq. ft. though the total space available was 1167 sq. ft. Subsequently, the petitioner applied for licence on 13.05.2010 to the 1st respondent. By order, dated 30.08.2010, passed by the 2nd respondent, the said application came to be rejected summarily on the ground that no business can be run in the Primary Residential Zone in a space more than 430 sq. ft. Consequently, the impugned Notice, dated 16.09.2010, issued under Section 379(A)(1) https://hcservices.ecourts.gov.in/hcservices/ of Act IV/19 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 further, he was also called upon to stop the trade within 24 hours of receipt of the notice and restore the premises to its original state with an intimation that failing compliance, the respondents' men would enter into the premises and take all such steps as mentioned in Sec. 379 A(1) of the Act to prevent continuation of the use of the place. Immediately on receipt of such notice, the petitioner again applied for licence to run the grocery shop over an area of 425 sq. ft. along with a Demand Draft for Rs.2,650/- and all other relevant documents on 13.10.2010, followed by a reminder dated 21.10.2010, however, till date no order has been passed on the said application for grant of licence to run the grocery shop. 3. In the light of the aforesaid factual aspects, learned Senior Counsel appearing for the petitioner would submit that 'licence' for running a provision shop does not come within the ambit of Section 279 and further, Schedule VI of the Act does not provide for a separate licence for running a Grocery shop. According to him, inasmuch as Schedule VI includes several goods and for sale of which licence is required under the Act, in due compliance to the same, the petitioner had already applied for licence to run the business over an extent of 425 sq. ft. in the premises in question since the area is falling under Primary Residential Zone where no one would be allowed to run a grocery shop in a space measuring more than 430 sq. ft. Curiously, the respondents by keeping the Application pending for the past one month, now, threaten and force the petitioner to close down his business by way of the impugned notice. It is highlighted that if at all a licence is required, the same can be applied under Section 287 of the Act and in the instant case, the petitioner had already applied for the same specifically mentioning that he is seeking the licence to run the grocery shop only in respect of 425 sq. ft. of land, however, the respondents summarily rejected the same which reflects utter non-application of mind on their part. 4. Secondly, it is submitted that as per Section 287 of the Act, licence should be granted by the respondents immediately after the petitioner had applied for the same after doing inspection of the premises. So submitting, learned Senior Counsel went on to assail the action of the respondents in sleeping over the application seeking licence for a considerable time without passing orders on the same, by stating that several other grocery shops are also being run in the very same locality that too without any https://hcservices.ecourts.gov.in/hcservices/ licence and against whom no action was ever taken, but, in the case of the petitioner despite his sincere attempts in applying and seeking for a licence to run the business, the authorities from the inception have been showing an indifferent attitude and therefore, interference by this Court is absolutely necessary. 5. Finally, he submitted that though the petitioner originally opened the grocery shop over a space of 1167 sq. ft., subsequently, he restricted the extent of area to 425 sq. ft. for which he also applied for licence to the respondents enclosing the Demand Draft and other requisite supportive documents, therefore, at least now, the respondents may be directed to pass suitable orders within a reasonable time frame by considering the petitioner's case in accordance with the Rules and Regulations. 6. Per contra, Mr.V.Bharathi Dasan, learned counsel appearing for the respondents, heavily commenting on the petitioner's way of running the grocery shop without getting a valid licence from the respondents, would submit that inasmuch as the petitioner is running a departmental store and vegetable shop in the entire building by using a total area of 1367 sq ft. viz., 1167 sq. ft. meant for Departmental Store and 200 for vegetable shop, the authorities took action closing the trade and sealing the premises on 29.04.2010, after issuing a notice under Section 379A(1) of the Act since Departmental Stores are not permitted in Primary Residential Zones. When the petitioner approached this Court by filing a writ petition in W.P. No.15290 of 2010, this Court, by order dated 14.07.2010, granted an order of interim injunction, directing the respondents to remove the seal that was put up by them in the petitioner's property to enable the petitioner to remove the articles and thereafter, once again to seal the premises. In view of the said order, the respondents removed the seal and thereafter, when the petitioner filed an application seeking license for running a provision stores in 450 sq. ft., field verification was done by the Revenue Department officials and it was noticed that the the entire building to an extent of 1367 sq. ft. including a temporary structure outside the building is being used for business which is not permitted in a primary residential zone. Therefore, on the basis of the inspection carried out by the respondents-officials, the application seeking for licence was refused by way of the impugned order. The petitioner filed another application for issuance of a licence to run a grocery shop in a space of 430 sq. ft. of land. Again, the petitioner's application was scrutinized and, after inspecting the premises twice, the authorities came to know that the petitioner continues to run the business in the entire building with an extent https://hcservices.ecourts.gov.in/hcservices/ of 1367 sq. ft. including a vegetable shop outside the building in a temporary shed, which is not permitted in a Primary Residential Zone. Therefore, the licence application of the petitioner was rejected and such fact was intimated to him vide office letter dated 30.08.2010. Despite the same, the petitioner continues to run the business. According to the learned counsel, when law demands and obligates the petitioner to obtain a valid licence from the Corporation after getting special permission from the CMDA for change of usage of the entire building for commercial activity, the petitioner cannot be permitted to run either the Departmental Store or Grocery shop in the Prime Residential Zone. Further, many complaints have been received from the Residents Welfare Associations of Kalashetra Colony regarding conversion of residential buildings into commercial places. Therefore, without complying with the conditions pre-requisite on his part to seek licence, the petitioner cannot expect the respondents to dispose of or pass any order on his application while he continues to conduct the business against the rules and regulations as mentioned above. Therefore, the petition is liable to be rejected. 7. I have carefully considered the rival submissions advanced on either side. It is the admitted case of both the parties that the premises in question is located in a Primary Residential Zone. Though it is the specific case of the petitioner that the Act does not provide for a separate licence for running a grocery shop and therefore, the impugned notice is vitiated in law, in the light of the legal provisions under the Act, such stand cannot be countenanced. 8. Section 279 of the Act states 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 makes it clear that no place within the limits of the city shall be used for any of the purposes mentioned in schedule VI without a licence obtained from the commissioner and except in accordance with conditions specified therein. Though Section 287 does not, in explicit terms, provide for a licence to run a grocery shop or departmental store, a bare reading of the contents of Schedule VI would make it clear that the items and articles covered therein pertains to Departmental Stores and Grocery Shops also. Thus, without any difficulty, this Court can come to the conclusion that for carrying on trade in the City https://hcservices.ecourts.gov.in/hcservices/ by running a departmental store or grocery shop, a valid licence from the Corporation should be obtained. 9. In the present case, the petitioner himself, after knowing well about the position that only after obtaining a valid licence from the Corporation, he is entitled to run the grocery shop in a locality which is a primary residential zone and in a restricted space of about 430 sq. ft., of course, applied for licence. At the same time, it must be taken note of that the petitioner was never complying with the basic and core requirement that he should commence and conduct the business only after obtaining the licence from the authority. When this court granted interim direction in W.P. No.15209 of 2010 by order dated 14.07.2010 to remove the seal enabling the petitioner to clear the stock available, the petitioner taking advantage of such order, comfortably continued the business after removal of the seal. Further, it is highlighted by the respondents before this Court that at the time of removal of seal, the petitioner submitted an affidavit to the first respondent with an undertaking that he would never run the shop without obtaining licence from the Corporation. Therefore, while on the one hand running the shop whimsically without a valid licence, the petitioner cannot simultaneously move any application for licence. Allowing or accepting such attitude would definitely demean the purpose intended in the scheme of the Act regarding the necessity to obtain licence in the given set of cases. Therefore, this Court does not find any flaw or illegality in the impugned notice issued, directing closure of the business being carried out without a valid licence. 10. Learned Senior Counsel pleaded that the pending application submitted with Demand Draft and requisite documents may be directed to be disposed of in accordance with law. While appreciating the said pleading, it must be pointed out that the respondents, while reiterating their stand that the Corporation would be in a position to consider the case of the petitioner when he completely stops the continuation of the business as pointed out above, in a way, highlighted that if the petitioner desires to conduct business activities in the entire building, he shall have to seek special permission from the CMDA for conversion of the residential building for business activities. However, no provision is adverted to before this Court that, for grant of licence in respect of 430 sq. ft. now sought to be used for running a grocery shop, any permission from the CMDA should be obtained. Therefore, there may not be any impediment for this Court to issue a suitable direction to meet the ends of justice as it is much reiterated by the learned Senior Counsel that due to the existence of the grocery https://hcservices.ecourts.gov.in/hcservices/ shop of the petitioner, the residents of the vicinity have actually been benefited. However, it is made clear that unless the petitioner stops the commercial activity in the premises lying in the prime residential zone, and earmarks the permissible area of 430 sq. ft. from and out of the entire extent available as vacant place enabling the authorities, during their inspection and visit, to assess the feasibility of granting licence for the said place, it may not be possible either for this Court to issue a suitable direction or the authority to conduct a meaningful inspection for grant of licence. Therefore, while 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 is clear, a parallel direction is issued to the respondents/authorities to consider the application dated 13.10.2010 and, after making personal inspection and observing other formalities, if any, involved, 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 this order. 11. Writ petition is dismissed with the aforesaid direction. No costs. Connected Miscellaneous Petitions are closed. The File submitted by the respondents is returned to the Standing Counsel in the Open Court. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. JI. To 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.Muthulakshmi Salai, Adyar, Chennai 600 020. 1 cc to M/s. A.L. Gandhimathi, advocate, Sr. 34224 1 cc to M/s. V. Bharathidasan, Advocate, Sr. 34515 WP No.24190 / 2010. RS (CO) kk 27/6 https://hcservices.ecourts.gov.in/hcservices/