Madras High Court
Tmt.P.Jayalakshmi vs The Commissioner on 28 July, 2009
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/07/2009 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN W.P.(MD)No.6808 of 2008 and M.P.(MD)No.1 of 2008 Tmt.P.Jayalakshmi ...Petitioner Vs. 1.The Commissioner, Aruppukottai Municipality, Aruppukottai, virudhunagar District. 2.S.Soundian ...Respondents Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records of the 1st respondent dated 21.07.2009 Na.Ka.No.3006/08/F1, quash the same and consequently, direct the 1st respondent to issue a licence to the petitioner for running power looms as per her application dated 05.02.2009. !For Petitioner ... Mr.G.R.Swaminathan for M/S.V.Karthikeyan ^ :ORDER
The petitioner has applied for licence to run the power looms in the premises situated in Door No.10/16, Ujjisamy Kovil Street (West), Arupukottai, by his application dated 20.05.2008. According to the petitioner, his father was running a yarn winding machine in the said premises and after his death, the petitioner was operating power looms in the said premises. On 07.03.2007, she obtained licence to run small scale industry, by the Department of Industries and Commerce and hence, she applied for licence to run the power looms. The petitioner has installed and was operating seven power looms with a total 4 H.P. The 2nd respondent, who is the neighbour of the petitioner, is having a civil dispute with the petitioner and therefore, he tried to stop the running of the power looms and complained to the 1st respondent that the industry is being run in a residential area and causing nuisance due to heavy sound that emanates and also due to vibration.
2.According to the petitioner, the 1st respondent has stated in his letter dated 30.03.2007 that the area in question has been classified as "Mixed Residential Zone" and many power looms are running in the said area and within the municipal limit of Aruppukottai, more than 10,000 power looms are operating and in the Ujjisamy Kovil Street, 30 to 40 power looms are operating. Though, the petitioner is not liable to apply for the licence, by way of abundon caution, she applied for licence on 20.05.2008. The 1st respondent did not send any reply nor granted licence to the petitioner. As per Section 250 of the Tamil Nadu District Municipalities Act, the permission is deemed to have been sanctioned if the application is kept pending for more than 60 days. Therefore, the petitioner was under the bona fide impression that his licence was deemed to have been granted and was running the power looms.
3.While so, the 2nd respondent filed W.P.(MD)No.2919 of 2008 for the issuance of writ of a Mandamus, directing the 1st respondent to remove the power looms installed in Door No.10/16 Ujjisamy Kovil Street. The petitioner was also one of the respondents in that writ petition and order was passed on 27.11.2008 in the absence of the petitioner, directing the first respondent to see that legal steps are taken to prevent from operating power looms within the period of 2 months from the date of receipt of a copy of the order.
4.Meanwhile, the petitioner has also filed the writ Petition (MD) No.11080 of 2008 against the 1st respondent, directing the 1st respondent to issue licence in pursuance to the application made by her dated 20.05.2008. That petition was ordered dated 03.12.2008 and this Court has passed the order, directing the 1st respondent to consider the application of the petitioner dated 20.05.2008, within a period of 15 days from the date of receipt of a copy of that order.
5.The first respondent on the basis of the order passed by this Court in W.P.(MD)No.11080 of 2008, by his proceedings in Na.Ka.No.3006/08 dated 31.12.2008, granted permission for the installation of the power looms, by using 4 H.P. subject to the conditions stated therein and also made it clear that the petitioner has to apply for licence to run the power looms by paying necessary fee.
6.According to the petitioner, she applied for grant of licence by paying necessary fee on 05.02.2009. The 2nd respondent on coming to know that the 1st respondent has granted permission to the petitioner for installation of machineries, filed the Contempt Petition(MD) No.60 of 2009, on the file of this Court, for taking action against the 1st respondent for disobedience of the order passed in W.P.(MD)No.2919 of 2008 and according to the 2nd respondent, this Court has passed an order in W.P.(MD)No.2919 of 2008 that the 1st respondent should take all legal steps to prevent the operation of the power looms and despite that order, the first respondent not only granted permission, but also allowed the petitioner to run the power looms and thus the 1st respondent has committed contempt of Court.
7.In that petition, the petitioner was impleaded as 2nd respondent and the contempt petition was heard on 16.07.2009 and as a result of the enquiries made by this Court during the hearing of the contempt petition, the 1st respondent has issued the impugned order to avoid the contempt proceedings, and according to the petitioner, the 1st respondent, without any application of mind and without giving any opportunity to the petitioner, passed the order and the same is liable to be quashed.
8.The petitioner has also stated in the writ petition that under Section 250 of the Tamil Nadu District Municipalities Act, the licence is deemed to have been granted, if no order has been passed within 60 days from the date of the application and the first respondent failed to appreciate that the petitioner is running the power looms in a mixed residential area and the order was passed out of fear for the contempt proceedings.
9.Heard, Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner. It is true that the impugned order was passed during the enquiry of the Contempt Petition No.60 of 2009. Though, the impugned order was passed during the enquiry of the contempt proceedings, it cannot be stated that the impugned proceedings is liable to be quashed on the ground that the first respondent passed that order to escape from the clutches of the contempt proceedings. In his proceedings, dated 31.12.2008, the 1st respondent has not referred to the order passed in W.P.(MD)No.2919 of 2008. But in the impugned proceedings, the 1st respondent has stated that, by his proceedings dated 31.12.2008, permission was granted to the petitioner to install the power looms with 4 H.P. and in that order itself, it was stated that the petitioner has applied separately for licence and without applying the same, he was running the power looms and he applied for licence only on 05.02.2009 and as per the order made in W.P.(MD)No.2919 of 2008, the petitioner was prevented from running the power looms and therefore, the impugned order was passed, prohibiting the petitioner from running the power looms.
10.Therefore, it is seen from the impugned order, that the 1st respondent has considered the application of the petitioner and also stated that, by order dated 31.12.2008, only permission was granted to install the power looms and for running the power looms, no licence was granted and without licence, the petitioner cannot run the power looms. He further quoted the order passed in W.P.(MD)No.2919 of 2008 and it is pertinent to mention here that in W.P.(MD)No.2919 of 2008, the petitioner was also one of the respondents and she is bound by the same.
11.The learned counsel appearing for the petitioner Mr.G.R.Swaminathan, developed his argument by stating that under Section 249 of the Tamil Nadu District Municipalities Act, licence was necessary for certain industries or factories as specified in schedule V of the Act, and power looms does not come under the ambit of schedule V of the Act and therefore, there is no necessity to apply for the licence.
12.According to the learned counsel appearing for the petitioner, as per Section 250(7) of the Act, permission shall be deemed to have been granted, if no orders, on application for permission, are not received by the applicant within 60 days after the receipt of the application.
13.He further submitted that under Section 321 of the said Act, the same deeming provision is available under Sub clause 11 and therefore, even assuming that permission or licence is necessary for running the power looms, it is deemed to have been granted after the expiry of 60 days and therefore, the petitioner is having the licence and the 1st respondent cannot prevent the petitioner by passing the impugned order.
14.Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner, also brought to my notice, the Memorandum No.40343/M3/72-4 dated 16.08.1972, issued by the Rural Development and Local Administration Department, in the matter of licence to power looms and installation of power looms and as per the said Memorandum, power looms can be allowed in residential areas with electric motors not exceeding 5 H.P. in aggregate subject to the restrictions, limitations and conditions laid down therein and in this case, the horse power used is less than 5 H.P. and even assuming that it is a residential area, as per the said notification, power looms are permitted in that area. Therefore, according to the learned counsel appearing for the petitioner, the impugned order is liable to be quashed.
15.For better appreciation of the facts involved in this case, it is better to have a look at on the provisions of the Tamil Nadu District Municipalities Act.
16.Section 249 of the Tamil Nadu District Municipalities Act, says that places may not be used without licence. As per that section, no place within the municipal limit or at a distance within three miles of such limits shall be used for any one or more of the purposes specified in Schedule V without the licence of the Executive Authority and except, in accordance with the conditions specified therein.
17.Sub Section 4 of Sec.249 says, every such licence shall expire at the end of the year unless for special reasons the Executive Authority considers it should expire at an earlier date, when it shall expire at such earlier date and therefore, the licence granted under Section 249 for industries specified in schedule V is for the limited purpose of one year or less and it is also true that the power looms does not come under the various items mentioned in schedule V.
18.From that, it cannot be concluded that there is need to obtain licence for installation or for running the power looms.
19.Section 250 of the Tamil Nadu District Municipalities Act, makes it clear that application to be made for construction, establishment or installation of factory, workshop or work place in which steam and other powers is to be employed.
20.Section 321 of the Tamil Nadu District Municipalities Act, deals with General Provisions regarding licence and permissions The scope of section 249, 250 and 221 of the said Act came up for consideration in the judgment reported in 1966(2) MLJ 164, and S.Govinda Iyer vs. The Municipal Council,Villupuram represented by its Executive Authority, its Commissioner,Municipal Office,Villupuram, South Arcot District and the Honourable Division Bench has held that as follows:
"As we have earlier said, where the Municipality is faced with the question of granting or declining permission for the permanent installation of a factory or of machinery, which may conceivably affect the health of persons in that locality, and may also involve several precautions in the interests of the public, the procedure makes it imperative that the Municipal Council should obtain expert opinion upon several aspects, before taking a decision. Learned counsel for the Municipality would appear to be right in his contention that, if the provisions of section 250 are to be complied with in the letter and in spirit, the Municipality cannot be constrained to arrive at a decision one way or the other, within the period of a month. If there is such an obligation it would really defeat the purposes of section 250 because it may be impossible to obtain the opinions of experts on the vital aspects referred to in the sub- clause of that section.
This interpretation is further borne out by a close scrutiny of the terms of section 321, sub-clause (11), which is the deeming provisions. Where two provisions of a statute do not really conflict with each other, and can be harmoniously interpreted, it is a fundamental canon of interpretation of statute, that that interpretation which reconciles them should be adopted; and not that which may spell out a conflict or contradiction. Since, section 321 (11) specifically refers to the application, being "demand to have been allowed for the year or for such less period as is mentioned in the application, clearly this refers to an application for permission, licence or registration, as mentioned in that sub-section, for such defined period, which may be a year or less. During the discussion of the present case, it became evident from arguments of learned counsel that the law and the rules really provides for three types of permission or licence. One is for the installation of the factory or the machinery itself; this may be a prayer for permission in perpetuity, or may be limited to some period of a year or less. Again, it may be an addition to an existing installation, or may be for the commencement of a factory. Even where such a permission has been granted, it is conceded by learned counsel for the writ petitioner that another permission must also be obtained, for running the machinery from year to year. It is not in dispute that renewal permission of that kind will have to be obtained from year to year, if the installation is to be of any use to the concerned proprietor; for obviously, an installation that he cannot work or run is of no use to him.
Under these circumstances, since it may be very difficult to lay down some criterion of distinction between section 250 and Section 321 (11) based on the kind of installation, or the extent of which the initial installation affects the pre-existing plan, the only distinction that we can unhesitatingly declare is that based on the time factor. For permission or for a licence which is for a permanent installation of a factory, section 250 will apply, and since no time will be specified in the application, the deeming provision in section 321(11) will not be attracted. The Municipality may apply all the relevant factors in section 250, after obtaining the opinion of experts, and it could not be deemed to have given a perpetual, permission, merely because the decision is not taken within a month of the receipt of the application.
21.Of course, it is true that at the time of rendering that judgment, there is no sub clause 7 of Section 250 of the Tamil Nadu District Municipalities Act, which postulates that if permission is not forthcoming within 60 days, it is deemed to have been granted the licence. S clause (7) of 250 of the Act was introduced in the year 1974 by Act 39 of 1974. Nevertheless, in the judgment referred to above, the Honourable Division Bench dealt with the same provision found under Section 321(11) of the Tamil Nadu District Municipalities Act and held that the said deeming provision was applied to application for permission or licence and for such definite period and in the judgment, it is also made clear that after permission was granted, another permission has to be obtained for the year running the factory. The deeming provision found under Section 321 (11) of the Act was further made clear in the judgment reported in 1968(1) MLJ 199, in the case of P.K.Ramasamy vs. Municipality of Coimbatore, represented by its Commissioner, Coimbatore, which is as follows:
This sub-section is in three parts. Each part is separated by a semi- colon, and each part deals with a distinct matter. The first part deals with the consequences of acceptance of the pre-payment of the fee for a licence or permission; the second part deals with renewal of a licence or a permission; and the third part is quite independent and state that save as otherwise specially provided in this Act, if orders on an application for licence or permission or for registration are not communicated to the applicant within thirty days after the receipt of the application by the executive authority, the application, shall be deemed to have been allowed for the year or for such less period as is mentioned in the application, and subject to the law, rules by-laws, regulations and all conditions ordinarily imposed.
22.Further in that case in the judgment the scope of Section 250 and 321 (11) were also discussed as follows: In the first place, this provision will cover both the cases of application for a licence as well as application for grant of permission. One can visualise an application for a licence in cases falling under Section 249 of the District Municipalities Act which enjoins the necessity for licence in the case mentioned in that section. Section 250 deals with the necessity to make an application for permission to undertake several items of work like construction or establishment of a factory etc., mentioned in that section. The reference to the words "licence or permission:" in section 321(11) shows that that section was intended to deal with cases of application for licence as well as application for permission and therefore, section 250 is also included for the purpose of section 321(11).
Therefore, from the above two judgments, it is made clear that the deeming provisions from that Sections 320(11) of the Tamil Nadu District Municipalities Act, will only apply in the case of renewal of licence and as per the Division Bench judgment of this Court, the deeming provision cannot be taken advantage of by the petitioner as it is not possible for the 1st respondent to take a decision within a period of 60 days.
23.The case of the petitioner can also be looked at from another angle. As stated supra, the petitioner was a party in W.P.(MD)No.2919 of 2008 and in that writ petition, order has been passed directing the 1st respondent to take all legal steps to prohibit the running of the power looms. That order has become final and the petitioner is also bound by the same. Therefore, the 1st respondent, who has been directed to take all legal steps to prevent the running of the power looms by this Court is well within its right to pass the impugned order and that cannot be challenged by the petitioner as she is bound by that judgment. Therefore, in my opinion, there is no illegality in the order passed by the 1st respondent and the 1st respondent has only acted as per the provisions of the Act and as per the direction of this Court and hence, the writ petition is liable to be dismissed.
24.In fine, the writ petition is dismissed and consequently connected Miscellaneous petition is also dismissed. No costs.
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