Madras High Court
V.Mahesh vs The Madurai Poriyalar Nagar on 6 December, 2022
W.A(MD)No.897 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.12.2022
CORAM
THE HON'BLE DR JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR JUSTICE SUNDER MOHAN
W.A.(MD)No.897 of 2011
and
M.P(MD)No.1 of 2011
V.Mahesh .. Appellant/8th Respondent
Vs.
1.The Madurai Poriyalar Nagar,
Residents Welfare Association,
Plot No.231, Poriyalar Nagar,
Thirumalpuram Post,
Madurai-625 014,
Rep by its Secretary,
M.Karuppiah .. 1st Respondent/Petitioner
2.The District Collector and
Chairman, Local Planning Authority,
Madurai,
Collector Office,
Madurai.
3.The Revenue Divisional Officer,
Collector Office,
Madurai.
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W.A(MD)No.897 of 2011
4.The Special Commissioner and
Director of Town and Country Planning
Anna Salai,
Chennai-600 002.
5.The Deputy Director of Town and
Country Planning,
Madurai.
6.The Members Secretary,
Local Planning Authority,
Shenoy Nagar,
Madurai.
7.The Block Development Officer,
(Rural) Madurai West,
Panchayat Union,
Madurai.
8.The President,
Kannanendhal Panchayat,
Iyer Bungalow,
Madurai.
9.The Commissioner/Special
Officer, Madurai City Municipal Corporation
Anna Maligai,
Madurai-625 020.
(R9 is impleaded vide Court Order dated 20.04.2022 made
in C.M.P(MD)No.9599 of 2021)
Appeal filed under Clause 15 of the Letters Patent, praying this Court,
to set aside the order dated 29.07.2011 passed in W.P(MD)No.6476 of 2007
on the file of this Court by allowing this Writ Appeal.
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W.A(MD)No.897 of 2011
For Appellant :Mr.G.Arivalagan
For R2 to R8 :Mr.D.Sasikumar
Additional Public Prosecutor
For R9 :Mr.S.Vinayak
JUDGMENT
DR. G.JAYACHANDRAN,J.
and
SUNDER MOHAN,J.
The appellant is the 8th respondent in the writ petition filed by
Madurai Poriyalar Nagar, Residents Welfare Association, alleging that Plot
Nos.70 & 71, which are earmarked for shopping complex are being misused
by altering the character by putting up a Petrol bunk by him.
2.The learned Single Judge, after considering the rival submissions,
allowed the writ petition by setting aside the impugned order dated
25.05.2007 and the consequential proceedings, dated 16.06.2007, passed by
the President, Kannanenthal Panchayat and remanded the matter back to the
5th respondent viz., the Member Secretary, Local Planning Authority, to pass
a detailed speaking order, taking into account the issue as to whether the
activity of the 8th respondent, who is the appellant herein, is in accordance
with the sanctioned plan. The learned Single Judge has also made the
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W.A(MD)No.897 of 2011
observation that if the 8th respondent is running a shop to sell oil lubricants,
then there will be hardly any objection by the writ petitioner. Being
aggrieved by the said order, the 8th respondent has preferred this appeal,
stating that there is no apparent difference between the commercial complex
and the shopping complex. As per the provisions of the Tamil Nadu Town
and Country Planning Act, wherever there is a sale or exchange of goods,
the premises used for such purposes are to be classified as commercial
complex and having earmarked Plot Nos.70 & 71 for commercial purposes,
there cannot be any objections by any of the members of the writ petitioner
Association.
3.It is contended that while permitting the vast extent of lands as
residential plots, certain portion of the lands are earmarked for public
purposes and public utility such as a Commercial Centre, Dispensary,
Nursery School, Park etc., as long as the activity of the appellant, who has
established his business premises in the plot meant for commercial activity,
is not hazardous or endangers the nearby residents, the residents can have
no locus to object the appellant's rights of trade and commerce.
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W.A(MD)No.897 of 2011
4.The learned Single Judge, taking note of the averments made in the
counter affidavit that the appellant is selling only oil lubricants by using the
premises as a shop, has rightly observed that if the appellant is running a
shop to sell the oil lubricants, there can be no objection from the first
respondent/writ petitioner. Therefore, the learned Single Judge erred in
observing further that the fifth respondent permitting the appellant to trade
the oil lubricants without storing them and using the premises as a godown
and the consequential resolution passed by the local authority set aside and
to reconsider the application afresh. Hence, he prays for setting aside the
order passed by the learned Single Judge, dated 29.07.2011.
5.The learned counsel appearing for the first respondent/writ
petitioner submitted that the appellant herein is using the premises as a
godown storing oil lubricants and therefore, there is a clear violation of the
order passed by the fifth respondent/the Member Secretary, Local Planning
Authority. The learned counsel further submitted that without making
proper application to the authorities, the appellant herein cannot continue
the business.
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W.A(MD)No.897 of 2011
6.The learned Additional Government Pleader appearing for the
official respondents submitted that the appellant herein besides selling the
oil lubricants stored stocks in the backyard of the shop. The photographs
are also circulated for appreciation by this Court.
7.Heard the submissions made by the learned counsel appearing for
the appellant, the learned counsel appearing for the first respondent and the
learned Additional Government Pleader appearing for the Official
respondents.
8.This Court, on perusing the records and the impugned order passed
by the learned Single Judge, finds that the conditional order for carrying out
oil lubricant oil business in the said premises was passed on 15.02.2005, by
the fifth respondent/Local Planning Authority. Pursuant to which, the
seventh respondent/elected member of the local body has passed a
resolution permitting the appellant herein to carry on oil lubricant business,
subject to the condition that he will not stock the oil lubricants in the
godown. Though it is contended that the premises are used as a godown by
the appellant herein and some photographs have now been circulated by the
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W.A(MD)No.897 of 2011
learned Additional Government Pleader, the examination of the photographs
indicates that the stock of oil lubricants being kept in the backyard of the
premises. In fact, the writ petition was filed on the ground that the appellant
herein has misused the premises by converting the area earmarked for
shopping complex into a petrol bunk. Now, it is made clear that no
petroleum products are stocked or stored on the premises and that only oil
lubricants are stored, if there is any violation of the permission viz., using
the premises as a godown by storing oil lubricants, then an opportunity
should be given to the appellant by causing show cause notice and after
affording an opportunity, orders can be passed in accordance with law.
Hence, there is no necessity to set aside the earlier order granting
permission.
9.When there is no specific finding to show that the petitioner herein
has violated the permission granted by the fifth respondent which followed
by the consequential order passed by the 7th respondent, this Court finds that
the authorities have not taken any action as on date for any violation of the
permission granted to the appellant. It is only at the instance of the writ
petitioner, this Court has taken note of the fact that whether the premises is
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W.A(MD)No.897 of 2011
used as a commercial complex or shopping complex, which, in the
considered view of this Court, is only a superfluous argument and there
cannot be a substantial difference between the commercial complex and
shopping complex. As per the order impugned, what is prohibited or
restricted is storing oil lubricants or using the premises as a godown and
nothing more. If the optimum quantity of oil lubricant is kept in the
premises for the purpose of trade, it cannot be construed as a violation of the
permission granted.
10.By clarifying the above position, this writ appeal is allowed,
without prejudice to the Government to cause inspection and take action if
there is any violation of the terms of permission granted, after affording an
opportunity to the appellant. No costs. Consequently, connected
miscellaneous petition is closed.
(G.J.,J.) (S.M.,J.)
06.12.2022
Index:Yes/No
Internet:Yes/No
Ns
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W.A(MD)No.897 of 2011
To
1.The District Collector and
Chairman, Local Planning Authority,
Madurai,
Collector Office,
Madurai.
2.The Revenue Divisional Officer,
Collector Office,
Madurai.
3.The Special Commissioner and
Director of Town and Country Planning
Anna Salai,
Chennai-600 002.
4.The Deputy Director of Town and
Country Planning,
Madurai.
5.The Members Secretary,
Local Planning Authority,
Shenoy Nagar,
Madurai.
6.The Block Development Officer,
(Rural) Madurai West,
Panchayat Union,
Madurai.
7.The President,
Kannanendhal Panchayat,
Iyer Bungalow,
Madurai.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.897 of 2011
DR.G.JAYACHANDRAN,J.
and
SUNDER MOHAN,J.
Ns
W.A.(MD)No.897 of 2011
and
M.P(MD)No.1 of 2011
06.12.2022
https://www.mhc.tn.gov.in/judis
