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P.K. Ramaswamy Vs. Municipality of Coimbatore, Represented by Its Commissioner - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1968)1MLJ199
AppellantP.K. Ramaswamy
RespondentMunicipality of Coimbatore, Represented by Its Commissioner
Cases ReferredThe Public Prosecutor v. Krishna Rao I.L.R.
Excerpt:
- .....in the following terms:the acceptance by the municipal council of the pre-payment of the fee for a licence or permission or for registration shall not entitle the person making such pre-payment to the licence or permission or to registration, as the case may be, but only to refund of the fee in case of refusal of the licence or permission or of registration; but an application for the renewal of a licence or permission or registration shall until communication of orders on his application be entitled to ac$ as if the licence or permission or registration had been renewed; and 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.....
Judgment:
ORDER

P. Ramakrishnan, J.

1. The petitioner is running a flour mill in No. 8/177, Dr. Rajendra Prasad Road, Coimbatore. He applied to the Municipality on 27th April, 1961, under Section 250 of the District Municipalities Act for permission to instal machinery for starting a flour mill in the abovesaid premises. No order was communicated by the Municipality within thirty days of the receipt of the application. Relying upon the provision in Section 321(11) of the District Municipalities Act, the petitioner assumed that his application had been allowed and put up the machinery. From 1961 onwards, he had been running his flour mill and applied for renewal of the licence in 1962, 1963 and 1964 paying the licence fee thereafter, but no orders were passed on those applications for renewal. But on 31st July, 1964, the Municipality passed orders rejecting his application relying on the circumstances that no installation of machinery could be allowed in the premises because it is situated in an area covered by the Town Planning Scheme and unless the scheme was varied, such, installation could not be permitted. The petitioner states that by reason of Section 321(11) of the District Municipalities Act above referred to, he was entitled to proceed on the basis that the permission applied for by him had been granted and, therefore, the Municipality's orders issued to him subsequently in 1964 refusing his application would be invalid and without jurisdiction. Hence, he prays in this writ petition for the issue of a writ of certiorari quashing the aforesaid proceedings and also for restraining the Municipality from taking any further proceedings in pursuance of the above order.

2. In the counter-affidavit filed by the Municipality in this writ petition, it is alleged that on receipt of the application of the petitioner dated 27th April, 1961, a communication was sent to the petitioner under date 6th May, 1961 and served on the petitioner on 13th May, 1961 stating that his application was receiving attention and that the petitioner should not instal the machinery before obtaining the permission sought for. Subsequently the matter was placed before the Council and the Council by its resolution dated 9th August, 1961 recommended the installation subject to the approval of the Director of Town Planning, Madras. Thereafter, correspondence ensued between the Director of Town Planning, Madras arid the Municipal Commissioner and it was protracted for a long time. On 6th May, 1964, the Director of Town Planning issued order stating that in view of the Town Planning Scheme in force, the required permission could not be granted. Again the matter was placed before the Council and it passed a resolution afresh refusing the application of the petitioner. Subsequently, a notice dated 20th January, 1965 was issued to the petitioner under Section 250 of the Act directing the petitioner to remove the unauthorised installation within 7 days under threat of prosecution. A charge sheet was also prepared for prosecuting the petitioner in the Special First Class Magistrate's Court and it was at that stage, the present writ petition was filed.

3. In my opinion, the petitioner is on firm ground when he relies upon Section 312(11) of the District Municipalities Act which is in the following terms:

The acceptance by the Municipal Council of the pre-payment of the fee for a licence or permission or for registration shall not entitle the person making such pre-payment to the licence or permission or to registration, as the case may be, but only to refund of the fee in case of refusal of the licence or permission or of registration; but an application for the renewal of a licence or permission or registration shall until communication of orders on his application be entitled to ac$ as if the licence or permission or registration had been renewed; and 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.

4. 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, bylaws, regulations and all conditions ordinarily imposed.

5. 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 cases 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 fiat 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).

6. In Public Prosecutor v. Karuppiah Pillai (1957) 2 M.L.J. 7, dealing with a parallel provision under Section 96(3) of the Panchayat Act, Somasundaram, J., observed that the order with which Section 321(11) requires to be communicated within, thirty days of the receipt of the application by the executive authority need not always be a final order either granting or refusing the licence applied for and that they may be in the nature of interim orders refusing to grant the licence pending further enquiry or receipt of the report called for on the application for licence. The learned Counsel for the Municipality states that the interim communication dated 6th May, 1961, to the petitioner referred to in the counter-affidavit would fall within such a communication mentioned in the judgment just now cited. But as against this, there is another decision of Somasundaram, J., in The Public Prosecutor v. Krishna Rao I.L.R. (1958) Mad. 330 : (1957) 2 M.L.J. It was a decision dealing with a case under Sections 250 and 321(11) of the District Municipalities Act. The learned Judge observed that the communication of an interim order (of the kind mentioned above) must be by the Municipality that any such communication by the Commissioner of the Municipality stating that his application is under consideration and that the work should not be commenced till the permission is granted will not be an order within the meaning of Section 250 of the Act and that such an interim order, by the Commissioner cannot amount to a refusal of the permission asked for. The learned Judge held that in circumstances, Section 321(11) should be applied and the permission must be deemed to have been granted for the installation of the machinery.

7. It is contended by the petitioner that the interim communication in this case, dated 6th May, 1961, was only by the Executive Officer of the Municipality and this fact is not denied by the respondent-Municipality. In view of the above, I am of opinion that the petitioner is justified in contending that his application must be deemed to have been granted by the Municipality under Section 321(11) of the Act.

8. The writ petition is, therefore, allowed and a writ of cerliorari will issue as prayed for. The petitioner will get his costs from the respondent. Advocate's fee Rs. 150.


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