S.N. Thiagarajan vs The Commissioner and The Assistant Commissioner, Corporation of Chennai

T. Raja, J.—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, u/s 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 1/2, Cauveri Street,

Kalashetra Colony, Besant Nagar, Chennai-90.

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 u/s 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

dated29.04.2010, 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 ActIV/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 u/s 379(A)(1) 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 u/s 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 Section 379A(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.

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

than430 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 u/s 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 of425 sq. ft. of land, however, the Respondents summarily rejected the same which reflects utter non-application of mind on

their part.

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 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.

Finally, he submitted that though the Petitioner originally opened the grocery shop over as pace 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.

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 u/s 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 of1367 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 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.

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.

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 by running a departmental store or grocery shop, a valid licence from the Corporation should be

obtained.

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.

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 430sq. 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 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.

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.