Madras High Court
A.S.Jafar Ali vs The Divisional Engineer on 4 November, 2022
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.Nos.13769 of 2017 etc
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.Nos.13769 of 2017 & 17890 of 2016
and W.M.P.Nos.15586 of 2016, 17790 of 2019,
14955, 14956 & 15223 of 2017
A.S.Jafar Ali .. Petitioner in both the WPs
Vs.
1. The Divisional Engineer,
Highways, Construction and Maintenance,
Pollachi, Coimbatore District.
2. The Assistant Divisional Engineer,
Highways, Construction and Maintenance,
Anaimalai, Pollachi Taluk,
Coimbatore District.
3. The Secretary,
Coimbatore District Milk Producers
Cooperative Union (Aavin),
Pachapalayam,
Coimbatore - 10. .. Respondents in both the WPs
Prayer in W.P.No.13769 of 2017: Writ Petition filed under Article 226 of the
Constitution of India seeking a Writ of Certiorarified Mandamus calling for
the entire records relating to the impugned order passed by the 2nd respondent
in his proceedings Na.Ka.No.22/2015/E.Va.A, dated 02.02.2017 and quash
the same and consequently direct the respondents to renew the petitioner's
Aavin Milk Parlor situated in No.6/4 Km, Ambarampalayam - Sethumadai
https://www.mhc.tn.gov.in/judis
1/14
W.P.Nos.13769 of 2017 etc
Road, Anaimalai, Pollachi Taluk, Coimbatore District.
Prayer in W.P.No.17890 of 2016: Writ Petition filed under Article 226 of the
Constitution of India seeking a Writ of Certiorari, calling for the entire records
relating to the impugned order passed by the 2nd respondent in his Letter
No.22/2015/E.Va.A, dated 18.04.2016 and quash the same.
For Petitioner : Mr.C.Prakasam
in both the WPs
For Respondents 1 & 2 : Mr.K.M.D.Muhilan
in both the WPs Additional Government Pleader
For Respondent 3 : Mr.S.Ravikumar
in both the WPs
-----
COMMON ORDER
The writ petition in W.P.No.13769 of 2017 has been filed challenging the order passed by the 2nd respondent dated 02.02.2017 in his proceedings in Na.Ka.No.22/2015/E.Va.A, and seeks a direction to the respondents to renew the permission to the petitioner's Aavin Milk Parlor situated at No.6/4 Km, Ambarampalayam - Sethumadai Road, Anaimalai, Pollachi Taluk, Coimbatore District.
https://www.mhc.tn.gov.in/judis 2/14 W.P.Nos.13769 of 2017 etc
2. The writ petition in W.P.No.17890 of 2016 has been filed challenging the letter of the 2nd respondent dated 18.04.2016 addressed to the first respondent, in and by which the second respondent has requested the first respondent not to grant permission to the petitioner.
3. It is the case of the petitioner that he sought permission to run Aavin Milk Parlour and accordingly permission was granted by the respondents on 08.02.2016 for one year and the rent has been fixed at Rs.3,500/- per year and he has been paying the rent.
4. After expiry of the one year period on 07.02.2017, when the petitioner made an application before the second respondent seeking renewal of permission, the second respondent took vengeance against the petitioner since he approached this Court by filing a writ petition, has once again asked the petitioner to get NOC from all the officials. When he approached the officials for NOC, they informed the petitioner that NOC has already been given to him without mentioning any period and therefore there was no necessity again to issue any fresh NOC. Therefore, the petitioner once again approached the second respondent for renewing his application, however the https://www.mhc.tn.gov.in/judis 3/14 W.P.Nos.13769 of 2017 etc second respondent rejected petitioner's application. Hence the petitioner has filed W.P.No.13769 of 2017 seeking to set aside the impugned order passed by the second respondent dated 02.02.2017 and consequently direct the respondents to renew the petitioner's license for Aavin Milk Parlor.
5. W.P.No.17890 of 2016 has been filed challenging the impugned order dated 18.04.2016, in and by which the second respondent has recommended to the first respondent not to renew the license of the petitioner.
6. The second respondent has filed an affidavit stating that the petitioner has unauthorizedly continuing the Aavin milk parlour even though the licence/permission granted to run the Aavin milk parlour has not been extended. The application was originally filed for permission and the same was scrutinized in the light of the No Objection Certificates issued by the Sub- Collector, Pollachi, Deputy Superintendent of Police, Valparai and Executive Officer of Anamalai Town Panchayat. Accordingly, by proceedings dated 08.02.2016, permission was granted not in the name of the writ petitioner but in the name of the third respondent Coimbatore District Milk Producers Cooperative Union (Aavin) temporarily for a period of one year from the date https://www.mhc.tn.gov.in/judis 4/14 W.P.Nos.13769 of 2017 etc of issuing the order.
7. The above permission dated 08.02.2016, was granted subject to the condition that he must promote only Aavin milk products of the State Government and he is not entitled to sell or promote any other products. Yet another condition imposed was that the parlour has to be run by the writ petitioner without causing any hindrance or obstruct free flow of traffic on the highway. However the writ petitioner has extended his shop to the extent of 11'x8' whereas the permission was granted only to run the parlour in an area of 8'x9'. By such act, the petitioner had enclosed and covered the entire area in the frontage measuring 20'x20' and allowed his customers to park their vehicle in front of the parlour haphazardly.
8. Similarly the petitioner has engaged in cooking by using commercial gas cylinders which is hazardous especially when there is an ATM centre of the State Bank of India situated nearby. The State Bank of India has objected for that, the owner of the building, where State Bank of India is functioning, has also complained that vehicles are allowed to be parted by the writ petitioner in front of his shop haphazardly which resulted in chaos and https://www.mhc.tn.gov.in/judis 5/14 W.P.Nos.13769 of 2017 etc commotion for the State Bank of India to function. Therefore, a writ petition in W.P.No.8732 of 2016 has been filed by the building owner to cancel the licence issued to the writ petitioner. During the pendency of the said writ petition, the writ petitioner submitted an application seeking to extend the permission to run the parlour. However, the said application was returned by the impugned proceedings in Na.Ka.No.22/2015/Eva/ dated 02.02.2017. Thereafter by an order dated 21.08.2018 in W.P.No.8732 of 2016, this Court directed the first respondent to consider the representation of the petitioner dated 23.02.2016 and pass orders.
9. Pursuant to the said directions of this Court, a show cause notice dated 28.09.2018, was issued to the petitioner. On receipt of the show cause notice dated 28.09.2018, the writ petitioner complaining non-compliance of the order of interim stay granted by this Court on 06.06.2017 in the above writ petition has filed Contempt Petition No.2424 of 2018. Since the show cause notice dated 28.09.2018 was withdrawn on 22.11.2018, the contempt petition has been closed on 08.02.2019.
10. According to the respondents the permission granted to Aavin https://www.mhc.tn.gov.in/judis 6/14 W.P.Nos.13769 of 2017 etc parlour has not been extended further and the writ petitioner is running the parlour unauthorizedly, he is causing much hindrance to the free flow of traffic and he has extended his shop contrary to the licence conditions, hence the respondents oppose both the writ petitions.
11. Mr.C.Prakasam, learned counsel appearing for the writ petitioner would submit that the licence has not been renewed merely on the basis of the representation made by the Bank and the owner of the land, in fact there are many other such permission given by various authorities to run the outlet and the petitioner has been discriminated, hence submitted that the entire action by the respondents is nothing but arbitrary exercise of power to victimize the writ petitioner and hence seeks to quash the impugned orders.
12. Mr.K.M.D.Muhilan, learned Additional Government Pleader appearing for the respondents 1 and 2 vehemently submitted that permission was granted in the year 2016 for a period of one year with the shop area measuring an extent of 8'x6' area with a condition that the permission is only temporary in nature and the petitioner shall not cause any hindrance to the traffic and movement of the public. The parlour also should be put up in a https://www.mhc.tn.gov.in/judis 7/14 W.P.Nos.13769 of 2017 etc specific manner and the licence is only for one year. However, the parlour has not been used for the purpose for which it has been permitted, on the contrary, commercial gas cylinders were being used and vehicles have been regularly parked in front of the parlour causing hindrance to the free movement of traffic.
13. Status Report has been filed by the second respondent and it has been indicated that by an order dated 23.08.2022 in W.P.No.13769 of 2017, this Court has directed the second respondent to inspect the place and file a report as to whether encroachments have been made by the petitioner. Pursuant to the same a report has been filed, wherein it is clearly stated that the petitioner has encroached the land and due to such encroachment, now the shop size has been extended from 8'x6' to 21'x16'1/2'. Further, it is stated that above the drain, the petitioner has placed the stove with oil kadai closed by polythene papers. Further, it is stated that there are two main arch entrance of Masani Amman Temple situated in the same road 200 mts away from the petitioner's parlor. Since the bus stop is situated near the ATM of SBI bank which were occupied by the petitioner, experiences heavy traffic conjunctions. https://www.mhc.tn.gov.in/judis 8/14 W.P.Nos.13769 of 2017 etc
14. I have heard the learned counsel on either side and also perused the records carefully.
15. Originally, permission has been granted for a period of one year vide proceedings dated 08.02.2016, wherein, it has been clearly stated that permission was granted to put up Aavin parlour and the size of the shop should not exceed 8'x6'. The following conditions have been stipulated while granting permission viz., "(i) The permission is purely temporary as per Highways Act 2001 Section 26 Rule 6 and valid only up to 07.02.2017.
(ii) There should not be any hindrance to the public, transport and the drain path.
(iii) Aavin milk parlour of size should not exceed (8'x6').
(iv) Should not be interfering with the exploitation to the tree available nearby.
(v) Other than the permitted applicant no one should be allowed to operate or exchange the ownership.
(vi) Any taxes to the local body should be remitted without any omission.
(vii) This permission is valid for "one year https://www.mhc.tn.gov.in/judis 9/14 W.P.Nos.13769 of 2017 etc only from the date of issue".
(viii) The highways authority has right to cancel the permission at any time."
16. When the permission is granted subject to various conditions, it is the duty of the allottee to follow those conditions. If there is any violation of any of the conditions, the same will enable the respondents to take action as per law. It is relevant to note that the petitioner having started the parlor to sell Aavin products, the land originally allotted was 8'x6'. But, now the area of the parlor is 21'x16 1/2'. He has converted the Aavin parlour into a temporary tea stall by encroaching the land and started using commercial gas cylinder etc., A perusal of the photographs filed also show that in front of the shop area several vehicles have been parked by the consumers haphazardly. When several activities are carried out by the petitioner violating the stipulated conditions certainly it is not only causing hindrance to the traffic movement and also public movement.
17. In the status report it is also clearly indicated that 200 meters away from the shop of the petitioner famous Masani Amman Temple is situated where large number of pilgrims gather every day. Just near the Aavin parlour, https://www.mhc.tn.gov.in/judis 10/14 W.P.Nos.13769 of 2017 etc State Bank of India is also operating and their ATM is also placed outside the SBI. The petitioner tea stall is causing much disturbance to others. The petitioner cannot as a matter of right seek for renewal of permission granted in the year 2016, particularly when it was given for one year. When the petitioner has violated various conditions imposed at the time of allotment, equity right to seek for extension or renewal of licence cannot be claimed by the petitioner.
18. On perusal of the photographs, this Court is satisfied that the stipulated conditions have been clearly violated by the petitioner and the original permission granted only for a period of one year has expired in the year 2017 itself. On the basis of the pendency of this writ petition, the petitioner has some how or the other managed to enjoy the property without any rent being paid properly. The conduct of the petitioner also cannot be ignored altogether. Previously, when the matter was listed for hearing, there was no representation for the petitioner and hence the matter was dismissed for default and thereafter it was again restored. This aspect also cannot be ignored.
https://www.mhc.tn.gov.in/judis 11/14 W.P.Nos.13769 of 2017 etc
19. Under Section 26(6) of the Tamil Nadu Highways Authority Act, temporary permission has been granted. Therefore, when serious violations have been noticed by the authorities, renewal has not been taken into consideration due to various violations made by the petitioner, authorities have rightly denied the renewal. This Court while exercising power under Article 226 of the Constitution of India cannot direct the authorities to renew the licence granted to the petitioner, particularly, when there are serious violations made by the petitioner. Such view of the matter, I do not find any merit in these writ petitions and hence both the writ petitions are dismissed. Consequently, the connected miscellaneous petitions are closed. No costs.
04.11.2022 kk To
1. The Divisional Engineer, Highways, Construction and Maintenance, Pollachi, Coimbatore District.
2. The Assistant Divisional Engineer, Highways, Construction and Maintenance, Anaimalai, Pollachi Taluk, Coimbatore District.
3. The Secretary, Coimbatore District Milk Producers Cooperative Union (Aavin), https://www.mhc.tn.gov.in/judis 12/14 W.P.Nos.13769 of 2017 etc Pachapalayam, Coimbatore - 10.
https://www.mhc.tn.gov.in/judis 13/14 W.P.Nos.13769 of 2017 etc N.SATHISH KUMAR, J.
kk W.P.Nos.13769 of 2017 & 17890 of 2016 and W.M.P.Nos.15586 of 2016, 17790 of 2019, 14955, 14956 & 15223 of 2017 04.11.2022 https://www.mhc.tn.gov.in/judis 14/14