Madras High Court
M/S.Janatha Tyre Retreaders vs The Director on 12 January, 2022
W.P.No.37147 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.01.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition No.37147 of 2016
and W.M.P.No.31915 of 2016
M/s.Janatha Tyre Retreaders,
Represented by its Managing Partner,
A1, North Main Road,
Chidambaram – 608 001.
Represented by its Managing Partner,
Mr.Biju J.Veyccal …. Petitioner
-Vs-
1.The Director
Directorate of Town and Country Planning,
807, Anna Salai, Chennai – 600 002.
2.The Commissioner,
Chidambaram Municipality,
Chidambaram, Cuddalore District.
3.Asivatham Nagar and GN Nagar
Welfare Association,
rep. by its President,
R.Kasinathan,
No.19, Asirvatham Nagar, Chidambaram …. Respondents
[R3 impleaded as per order dated 13.03.2017
in WMP.No.36204 of 2016]
Page No.1 of 20
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W.P.No.37147 of 2016
Prayer: Writ Petition under Article 226 of the Constitution of India praying
for the issuance of a Writ of Mandamus, forbearing the respondents from
applying the reclassification to the petitioner's premises viz., No.A1, North
Main Road, Chidambaram-608001 as “mixed residential zone”in variation
to the earlier existing classification as commercial zone and consequently
direct the respondents to grant the benefit of exemption as per Section 47
and 51 of the Tamil Nadu Town & Country Planning Act to the petitioner.
For Petitioner : Mr.S.Thanka Sivan
For Respondents
R1 & R2 : Mr.V.Manoharan
Additional Government Pleader
R3 : Ms.Pooja
ORDER
The prayer sought for herein is for a writ of Mandamus, forbearing the
respondents from applying the reclassification to the petitioner's premises
viz., No.A1, North Main Road, Chidambaram-608001 as “mixed residential
zone” in variation to the earlier existing classification as commercial zone
and consequently direct the respondents to grant the benefit of exemption as
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W.P.No.37147 of 2016
per Section 47 and 51 of the Tamil Nadu Town & Country Planning Act to
the petitioner.
2.The case of the petitioner as per the affidavit averments of the
petitioner is that the petitioner established a small scale tyre retreading unit
at No.A1, North Main Road, Chidambaram, which unit was established
according to the petitioner in the year 1991.
3.The petitioner obtained license under the Tamil Nadu Factories Act
which was valid upto 31.12.2016. The Tamil Nadu Pollution Control Board
also issued consent to operate under the Air [Prevention and Control of
Pollution] Act, 1981 as well as Water [Prevention and Control of Pollutin]
Act, 1974 to the petitioner unit during the year 2001.
4.The petitioner was also having fire license issued by the Fire
Department which was valid upto 29.12.2016. The second respondent,
Chidambaram Municipality had also issued D&O Trade license after due
inspection by the officials concerned of the Municipality which was valid
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W.P.No.37147 of 2016
upto 31.03.2017.
5.The petitioner is running a small scale unit of tyre retreading with
the power consumption of less than 50HP and 22 employees were working.
6.When that was the position, when the petitioner had approached the
concerned authorities for renewal of the license, it was refused or they have
not considered or accepted the plea of the petitioner for renewal of the
license by the Municipality and the consent to be issued by the Tamil Nadu
Pollution Control Board, etc. on the sole ground that initially the land in
which the petitioner unit was located was classified as commercial zone and
subsequently sometime in 2007, it has been reclassified as mixed residential
zone. In view of such reclassification and since there has been a complaint
or objection raised by the third respondent, Residents' Welfare Association in
that locality, these authorities including the second respondent had not come
forward to renew the necessary license which the petitioner has already been
enjoying for several years.
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W.P.No.37147 of 2016
7.In this regard, the Tamil Nadu Pollution Control Board also has not
come forward to renew the consent in view of the aforesaid reason only.
8.Only in that circumstances, the petitioner has moved the present
writ petition in the year 2016 with the aforesaid prayer.
9.Heard Mr.S.Thanka Sivan, learned counsel for the petitioner, who
would submit that, the petitioner unit was registered as a firm on 29.06.1993
and necessary charges had been paid by the petitioner to the second
respondent Municipality earliest in 1992-1993, for which receipt has been
given and a permanent registration certificate as a small scale industry was
given by the concerned authority on 20.10.1999. The Inspector of Factories
had issued the license which was valid upto 31.12.2016.
10.In this context, the learned counsel for the petitioner has pointed
out that, on 06.08.2001, the second respondent Municipality has issued the
certificate with the following effect:
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W.P.No.37147 of 2016
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11.In the records available in the website of the Registration
Department also Ward No.3, North Main Road has been shown as
commercial zone.
12.That being the position, the stand now taken either by the second
respondent Municipality or any other authority like the Tamil Nadu
Pollution Control Board for grant of renewal of license or renewal of consent
for the continuous running of the petitioner unit on the ground that
subsequently the land in which the petitioner Unit located has been
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W.P.No.37147 of 2016
reclassified as mixed residential zone cannot stand in the way under legal
scrutiny, for the reason, according to the learned counsel for the petitioner
that, Sections 47 and 51 of the Tamil Nadu Town and Country Planning Act
[in short 'the Act'] has given the protection to the existing structures,
infrastructures, buildings already been created based on the earlier
classification as that kind of development shall not be affected because of the
reclassification under which if any particular area is reclassified in a
different zone, that would not stand in the way of the existing
infrastructures.
13.In this context, the learned counsel for the petitioner has relied
upon a decision of the Hon'ble Supreme Court reported in [1995] 2 SCC 11
in the matter of Central Coal Fields Ltd. vs. State of Madhya Pradesh and
others, where the learned counsel relied upon the following passage:
7.Under Section 24, the State Government have kept
the power with them to control and use of the land for
overall development as per the plans of the
Adhiniyam. Section 24(2) gives power to the State
Government to remove difficulties in the implementation of
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W.P.No.37147 of 2016
the provisions of the. Act. Section 25 postulates that "after
coming into force of the development plan, the use and
development of land shall conform to the provision of the
development plan". In other words, after it has come into
force the development of the land shall be only in
conformity with the developmental plan. In other words it
is confined to building operations. Any constructions if had
been made prior to the coming into force of development
plan, it does not come within the prohibition contained
under Section 26. But thereafter, Section 26 expressly
prohibits constructions except under planned development
of land with prior permission. For permission, when
needed, an application in that behalf shall be made by any
person under Section 29 and by the State Government or
the Central Government or any local authority or special
authority under Section 27. The Director has been given
power to grant permission either unconditionally or
conditionally or refuse the same under Section 30. A right
of appeal by the aggrieved person is given under Section
31 to the appellate authority and a further revision to the
State Government under Section 32.
14.By relying upon the said decision, the learned counsel would
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W.P.No.37147 of 2016
contend that, if at all any reclassification has been made, whatever the
developments or building operations which have already been undertaken
prior to the reclassification would not stand in the way as the new
classification and the new building Rules under the Act would take into
effect only prospectively without affecting the earlier development taken
place pursuant to the earlier classification of various zones.
15.Therefore the learned counsel for the petitioner would submit and
canvassed that, the present stand taken by the respondent in not renewing
the license to the petitioner on the sold ground that presently under the
reclassification the land in which the petitioner unit is located since has been
reclassified as mixed residential zone, cannot stand in the legal scrutiny.
Therefore, he seeks indulgence of this Court to issue a writ of Mandamus as
prayed for.
16.Heard Mr.V.Manoharan, learned Additional Government Pleader
appearing for the respondents 1 and 2 and Ms.Pooja, learned counsel
appearing for the 3rd respondent.
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W.P.No.37147 of 2016
17.The learned counsel for the respondents would contend that, in
view of the reclassification having been made, under which admittedly the
land in question, i.e. the land where the petitioner unit is located since has
been reclassified as mixed residential zone wherein industrial unit or activity
since cannot be permitted to go on or continue, such a license renewal
sought for by the petitioner was not acceded to or considered by the
respondents, especially the second respondent and other related statutory
authorities like the Pollution Control Board.
18.The learned counsel for the third respondent also submitted that,
since lot of residences have come up in view of the reclassification having
been made, under which the entire stretch including the land where the
petitioner unit is located has been reclassified as a mixed residential zone,
the continuous running of the petitioner unit would be detrimental to the
residences in the locality and that is the reason why in a place which is
classified as mixed residential zone, that kind of industrial or factory
activities cannot be permitted to go on. Therefore, the official respondents
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W.P.No.37147 of 2016
rightly refused to accede to the prayer sought for by the petitioner for
renewal of the necessary license, of course, at the behest of the third
respondent also. Therefore, such a stand taken by the official respondents
cannot be questioned by the petitioner. Hence, the learned counsel for the
third respondent as well as the learned Additional Government Pleader
appearing for the official respondents seek dismissal of this writ petition.
19.I have considered the said rival submissions made by the learned
counsel appearing for the parties and have perused the materials placed
before this Court.
20.First of all, the Unit belongs to the petitioner was established as
early as in 1993. Even though it was claimed by the petitioner that the unit
was started in the year 1991, the documents which are available before this
Court make it clear that the unit was established sometime in 1993. All
necessary authorities have given their permission or consent or license which
includes the license granted by the second respondent Municipality, consent
given by the Pollution Control Board as well as the license given by the
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W.P.No.37147 of 2016
authority under the Factories Act.
21.The Unit was running for all these years and in the year 2001,
there was a specific certificate issued by the second respondent Municipality
that the land in which the petitioner unit is located has been classified as
commercial zone. Only subsequently it seems, sometime in 2007, there was
a reclassification under which the area which includes the petitioner Unit has
been categorized as mixed residential zone. No doubt, once such a
reclassification has come, whatever the development to be made pursuant to
the reclassification, that shall go ahead only in consonance with the
reclassification made in this regard.
22.However, as rightly pointed out by the learned counsel for the
petitioner, the development taken place or construction already been made
prior to the reclassification are saved by the provisions of Sections 47 and 51
of the Act, which reads as thus:
47. Use and development of land to be in conformity
with development plan.- After the coming into operation of
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W.P.No.37147 of 2016
any development plan in any area, no person other than
any State Government or the Central Government, or any
local authority shall use or cause to be used, any land or
carry out any development in that area otherwise than in
conformity with such development plan: Provided that the
continuance of the use of any land for the purpose and to
the extent for, and to which it is being used on the date on
which such development plan comes into operation, may
be allowed for such period and upon such terms and
conditions as may be specified in such development plan.
51. Exemption for works in progress.- Nothing
contained in section 48 shall apply to the erection of any
building or to the making or extension of any excavation or
to the carrying out of any mining or other operation or to
the making of any material change or to the construction,
formation or laying out of any means of access or of works
commenced before the date of the publication of the
resolution under sub-section (2) of section 19 or of the
notice in the Tamil Nadu Government Gazette under
section 26.
23.The language used in Section 51 of the Act starts with a non-
obstante clause stating that “nothing contained in section 48 shall apply to
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W.P.No.37147 of 2016
the erection of any building or to the making or extension of any excavation
or to the carrying out of any mining or other operation or to the making of
any material change or to the construction, formation or laying out of any
means of access or of works commenced before the date of the publication
of the resolution under sub-section (2) of section 19 of the Act”.
24.Sub-section (2) of Section 19 of the Act makes it clear that, a local
planning authority may by resolution decide to prepare a development plan
and to adopt with or without modification a detailed development plan.
Such resolution shall be published by the local planning authority in the
prescribed manner in the District Gazette.
25.Therefore, once the local planning authority prepared a
development plan or detailed development plan and if it is published under
Sections 19(1) and 19(2), that will come into effect from that day and in that
case, there cane be no development contra to the said plan as has been
contemplated under Section 48 of the Act. However, Section 51 of the Act is
an exemption to Section 48, that is the reason why the non-obstante clause,
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i.e. “nothing contained in Section 48 shall apply”.
26.Section 47 of the act also makes it clear that use and development
of land is to be in conformity with the development plan.
27.If it is a development and that has to be undertaken subsequent to
the publication of the development plan under Section 19 of the act, then
such a development shall be strictly in accordance with the development
plan published under Section 19 of the Act.
28.However, if already some development had taken place as per the
earlier classification, that is saved by the aforesaid provisions of the Act.
This has been reiterated in the afore cited judgment reported in [1995] 2
SCC 11, where the relevant portion in paragraph 7 has already been quoted
herein above.
29.Therefore, this Court has no hesitation to hold that, since the land
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W.P.No.37147 of 2016
where the petitioner unit has been established sometime in 1993 was
originally a commercial zone and it has been reclassified as mixed residential
zone only in 2007, such a reclassification if anything is published within the
meaning of Section 19 of the Act would not stand in the way of the
development already taken place on the earlier classification prior to
reclassification.
30.In that view of the matter, this Court is inclined to hold that the
present stand taken by the respondents, especially the official respondents in
not renewing the license which are required to be renewed for the continuous
running of the petitioner Unit, for the reason that subsequent to the
reclassification the land in question since has been reclassified as
commercial zone that kind of renewal cannot be granted, would not stand in
the legal scrutiny and therefore the petitioner is entitled to seek for a
Mandamus as prayed for.
31.For the aforesaid reasons and discussion, this Court is inclined to
dispose of this writ petition with the following orders.
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W.P.No.37147 of 2016
(i) That there shall be a direction to the official respondents to
consider the request/representation/application made or to be made in this
regard for grant of renewal of trade license or license to run the petitioner
tyre retreading unit as a small scale industry in the existing location where
the unit has already been started and running all these years since 1993 and
pass necessary orders thereon, on merits and in accordance with law.
(ii) It is made clear that, the said application to be filed or already filed
by the petitioner shall be processed and decided on merits where the reason
that the land wherein the petitioner Unit has been located since has been
reclassified as mixed residential zone that permission cannot be granted,
would not stand in the way as that kind of reason shall not be shown by the
respondents in deciding the said application, but at the same time, the other
requirements under various laws governing the running of the petitioner Unit
shall be strictly complied with by the petitioner.
(iii) The needful, as indicated above, shall be undertaken on receipt of
such application from the petitioner or from the date of receipt of a copy of
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W.P.No.37147 of 2016
this order if the application already been submitted, within a period of eight
weeks.
32.With this observation and direction, the writ petition is ordered
accordingly. No costs. Consequently, connected miscellaneous petition is
closed.
12.01.2022
Index : Yes/No
Internet : Yes/No
cse
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W.P.No.37147 of 2016
To
1.The Director
Directorate of Town and Country Planning,
807, Anna Salai, Chennai – 600 002.
2.The Commissioner,
Chidambaram Municipality,
Chidambaram, Cuddalore District.
3.Asivatham Nagar and GN Nagar
Welfare Association,
rep. by its President,
R.Kasinathan,
No.19, Asirvatham Nagar, Chidambaram
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W.P.No.37147 of 2016
R. SURESH KUMAR, J.
cse
W.P.No.37147 of 2016
12.01.2022
https://www.mhc.tn.gov.in/judis
