BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05/09/2012

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.(MD)No.586 of 2012
&
W.P.(MD)No.3085 of 2012
and
M.P.(MD).No.1 of 0212 in W.P.(MD).No.3085 of 0212

W.P.(MD).No.586 of 2012

M/s.Supereme Poultry Private Limited,
Rep. by its Deputy General Manager
N.Kumarasamy,		
P & C. Towers,
No.140, Perundhurai Road,
Erode-638 011.					... Petitioner

Vs.

1.The Superintendent of Police,
   Karur District,  Karur.

2.The Inspector of Police,
   K.Paramathi Police Station,
   Aravakurichi Taluk,
   Karur District.

3.The Sub-Inspector of Police,
  Thennilai Police Station,
  Aravakurichi Taluk,
  Karur District.

4.The President,
   Kodanthur Village Panchayat,
   Aravakurichi Taluk,
   Karur District.				... Respondents

W.P.(MD).No.3085 of 2012 M/s.Supreme Poultry Private Limited, Rep. by its Chairman - cum - Managing Director, P & C Towers, No.140, Perundhurai Road, Erode-638 011. ... Petitioner Vs.

1.The District Collector-cum-Inspector of Panchayats, Karur District, Karur.

2.The President,
   Kodanthur Village Panchayat,
   Aravakurichi Taluk,
   Karur District.				... Respondents


Prayer in W.P.(MD).No.586 of 2012

Petition filed under Article 226 of the

Constitution of India praying for the issuance of a writ of Mandamus directing the respondents to provide adequate police protection to the workers working at the land of the petitioner situated in Survey No.698/1, 697, 718/1 1B, 717/1, 704, 705, 706, 706, 708/2, 709 Kodanthur Village, Karur Taluk and to the properties of the petitioner located in the landed property on the basis of the representation of the petitioner dated 30.12.2011.

Prayer in W.P.(MD).No.3085 of 2012 Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the 2nd respondent in his proceedings NIL dated 2.3.2012 and quash the same as illegal and consequently directing the 2nd respondent to renew the permission pursuant to the representation of the petitioner dated 31.1.2012.

W.P.(MD).No.586/2012 !For Petitioner ... M/s.Jana B.Janath Ahmed ^For Respondents .... Mr.M.Alaghuthevan, Spl GP (For R1 to R3) Mr.T.Mohan for Mr.M.P.Senthil (For R4) W.P.(MD).No.3085/2012 For Petitioner ... Mr.B.Saravanan For Respondents ... Mr.M.Alaghuthevan, Spl GP (For R1) Mr.T.Mohan for Mr.M.P.Senthil (For R2) :COMMON ORDER Both the writ petitions are filed by the same petitioner which is a private limited company.

2.In the first writ petition viz., W.P.(MD).No.586 of 2012, the petitioner seeks for a direction to the respondents to provide adequate police protection to the workers working at the land of the petitioner situated in Survey No.698/1, 697, 718/1 1B, 717/1, 704, 705, 706, 706, 708/2, 709 at Kodanthur Village, Karur Taluk and to the properties of the petitioner located in the landed property of the petitioner on the basis of the representation of the petitioner dated 30.12.2011

3.In the said representation of the petitioner, dated 30.12.2011, addressed to the Superintendent of Police, Karur District and the Inspector of Police, K.Paramathi Police Station, (respondents 1 & 2 herein), the petitioner claimed that they have started construction work for Poultry Farm and Feed Mill pursuant to the common orders passed by this Court in W.A.(MD).Nos.14, 15, 97 and 238 of 2011 and W.A(MD).885 of 2010. However, few local people belong to Kodanthur Village are attempting to obstruct the construction work and on 30.12.2011, when the works of the petitioner were executing construction work, a mob of nearly 150 villagers barged into the landed property of the petitioner where the Poultry Farm is being set up and threatened the workers not to continue the construction activity, otherwise the petitioner/company will face dire consequences. They have also warned the petitioner/company to stop the constitution work. Therefore, the petitioner/company requested for initiation of criminal action against them and to provide adequate police protection to the lives of the works working in the property of the petitioner/company.

4.In the said writ petition, the petitioner has also impleaded the President, Kodanthur Village Panchayat, Aravakurichi Taluk, Karur District, also as 4th respondent.

5.When the matter came up on 24.01.2012, this Court directed the petitioner to produce the building permit issued by the Panchayat for the purpose of construction and also directed to produce licence issued by the Panchayat for conducting the poultry farm. It was further directed that the writ petition will be posted for admission only after production of the said documents.

6.Subsequently, when the matter came up on 30.03.2012, it was informed that the local body had rejected the planning permission for the petitioner and they have challenged the same in another writ petition and hence, the first writ petition was directed to be posted along with W.P.(MD).No.2085 of 2012.

7.The 4th respondent has filed a counter affidavit dated 12.03.2012. In the counter affidavit, the Panchayat Union has denied the allegation that the local villagers at the instance of rival company used to collect a mob in front of the land and make violent protest against the construction activities. These allegations were made only for maintaining the writ petition and they are only self serving statements. Even if it is presumed that the said incident happened on 16.09.2011, however, the purported complaint was made only on 27.12.2011.

8.In the second writ petition viz., W.P.(MD).No.3085 of 2012, the petitioner/company challenges the order 02.03.2012 passed by the 2nd respondent and after setting aside the same, seeks for the renewal of permission pursuant to the representation of the petitioner dated 31.01.2012.

9.When the second writ petition came up on 14.03.2012, notice was directed to be issued to the 2nd respondent and learned Special Government Pleader was directed to take notice for the 1st respondent.

10.On notice from this Court, the 2nd respondent entered appearance through a counsel and filed a counter affidavit dated 27.08.2012.

11.Heard both sides. The disposal of the second writ petition in W.P.(MD).No.3085 of 2012 will also dispose the first writ petition in W.P.(MD).No.586 of 2012, as it is incidental to the second writ petition.

12.By the impugned order dated 02.03.2012 issued by the Panchayat of Kodanthur Village Panchayat, Aravakurichi Taluk, Karur District, the petitioner was informed that since they have not completed the building in terms of Rule 30 of the Tamil Nadu Panchayat Building Rules, within the period of one year and hence, the permission granted had already expired. In terms of Condition No.6, they have not applied for renewal of building plan and since there is no guidelines issued by the District Collector, Karur, they are unable to renew the building permit and hence, the petitioner's application for renewal dated 31.01.2012 was returned.

13.The case of the petitioner/company was that the company was a registered company registered in the year 1991 and has been in the business of poultry farm and poultry feeds. It is already running poultry farm and feed mill in Poondurai Semoor without any problem or pollution in accordance with existing norms. The petitioner/company decided to set up poultry farm and feed mill in Kodanthur Village (South) and also purchased approximately about 75 acres of land for the said purpose through various registered sale deeds. The petitioner/company made an application before the 2nd respondent seeking for grant of building permission for construction of Feed Mill at Survey No.696 and Poultry Farm in S.No.698/1, 697, 718/A1B, 717/1, 704, 705, 706, 707, 708/2 & 709 at Kodanthur Village. The 2nd respondent grant building permission as requested by the petitioner vide proceedings dated 05.04.2010, for the period of one year commencing from 05.04.2010 ending on 04.04.2011 on certain conditions. The petitioner/company approached the Commissioner, Karur Paramathi Panchayat Union, to grant appropriate planning approval and the Panchayat Union had also passed resolution dated 16.04.2010 by giving consent to set up the Poultry farm and Feed mill and based on the same the Commissioner of the Panchayat Union, granted permission vide proceedings dated 28.04.2010. Thereafter, the petitioner applied before the Tamil Nadu Pollution Control Board for appropriate approval and the Board was also pleased to grant consent order for setting up the establishment, under Air (Prevention and Control of Pollution), Act 1981 and Water (Prevention and Control of Pollution) Act 1974 by proceedings, dated 31.03.2010. Thereafter, the petitioner approached the Department of Public Health and Preventive Medicine and they have also granted permission for fixing the machineries by proceedings dated 08.05.2010. Consequently, the Fire and Rescue Department had also granted no objection to set up the Feed Mill factory and Poultry Farm. Based upon the above permissions, the petitioner/company was given a loan of Rs.22,50,00,000/- by the Indian Overseas Bank, Erode and this petitioner company had also invested huge sum of money by ordering machinery, leveling the land, fabrication of cages, purling etc., to the tune of Rs.3,00,00,000/-. It is stated that one business rival group filed a suit in O.S.No.225/2010 before the District Munsif Court, Karur, for declaration and permanent injunction stating that the erection and running of Poultry Farm in the suit property is objectionable and nuisance to the plaintiff and villagers. There was no interim order passed in the said suit. However, at the instances of that rival group, the Panchayat Union Council passed a resolution No.565 dated 01.07.2010 cancelling the permission granted to the petitioner to set up new poultry farm and poultry feed mill factory. On the basis of the said resolution, the Commissioner of Karur Paramathi Panchayat passed an order dated 06.07.2010, thereby cancelled the licence and building permission.

14.Aggrieved by the action of the Panchayat Union, the petitioner filed W.P.No.8812 of 2010 before this Court. The said writ petition was allowed by this Court on 28.07.2010. However, in the meanwhile, the 1st respondent/District Collector passed an order dated 11.10.2010 cancelling the building permission granted by the 2nd respondent on the ground that no resolution was passed in Kodanthur Village Panchayat and the building permission was granted in violation of the norms. Aggrieved by the same, the petitioner filed another writ petition in W.P.No.12948 of 2010 before this Court. Subsequently, the Vice President of the the 2nd respondent Panchayat passed an order dated 04.10.2010 cancelling the building plan issued by the President of the said village panchayat stating that setting up of poultry farm and feed mill would cause pollution to the surrounding and mosquitoes & flies would spread diseases. By an order dated 04.10.2010, the petitioner/company was directed to stop construction work, failing which action will be initiated under the provisions of Tamil Nadu Panchayat Act, 1994.

15.Aggrieved by the order of the 2nd respondent, the petitioner filed W.P.No.13105 of 2010 before this Court. By a common order dated 03.12.2010, this Court dismissed both the writ petitions. As against the said order, the petitioner/company preferred two writ appeals being W.A.Nos.14 & 15 of 2011. The Panchayat Union has also filed appeals in W.A.No.97 of 2011 and W.A.No.238 of 2011. Even as against the order in W.P.No.8812 of 2010, dated 28.07.2010, the Panchayat Union has preferred Writ appeal in W.A.No.885 of 2010.

16.All the five writ appeals were heard together by the Division Bench and a common order was passed on 16.09.2011. In the said common order, the Division Bench upheld the order in W.P.No.8812 of 2010 and held that the Pollution Control Board has given consent to establish the unit. But, at the same time, at Para 40, the Division Bench has observed as follows:- "40.............. However, quashing of the order of the Commissioner, dated 05.07.2010 by which the original order of the executive authority, dated 05.04.2010 stands restored does not in our view take away the right of the authorities contemplated under the Tamil Nadu Panchayat Building Rules, 1997, in cancelling or modifying the same in accordance with law. In all fairness, in our considered view especially during the subsistence of the permission granted by the executive authority, when a contrary decision was attempted to be taken by the Commissioner of Panchayat Union, he ought to have heard the company before passing such orders.

In Para 41 it was observed as follows:-

"41.......... However, it is always open to the Executive Authority, to act as per the said provision of the rules enumerated above in the event of any contingency in respect of the grant of permission."

In para 44 it was observed as follows:-

"44...........Accordingly, the stop work notice issued by the Vice President of the Panchayat, dated 04.10.2010 challenged in W.P.(MD).No.13105 of 2010 cannot sustain in the eye of law, when the Company has been issued a permission by the executive authority by way of a building permission as per the Tamil Nadu Panchayats Building Rules 1997. Insofar as it relates to the order of the Inspector of Panchayats on 11.10.2010 which has been challenged in W.P.(MD).No.12948 of 2010, it has to be remembered that the power of the executive authority namely the President of Village Panchayat in issuing permission for building as per the Tamil Nadu Panchayats Building Rules 1997, or the power of Inspector to suspend any resolution passed by the village panchayat or cancel any licence or permission granted is certainly unassailable. That power is available to the District Collector being the Inspector of Panchayats under Section 202 of the Tamil Nadu Panchayat Act, 1994..."

In Para 48 it was observed as follows:-

"48.Inasmuch as we are of the view that the authority competent namely, the executive authority under the Tamil Nadu Panchayats Act 1994 being the President as per the Tamil Nadu Panchayats Building Rules 1997, has granted permission to the company which is the appellant in W.A.(MD).Nos.14 and 15 of 2011. Unless and until, that is varied either by the executive authority himself in the manner known to law as enumerated above or set aside or suspended by the Inspector of Panchayats namely, the District Collector as per the provision of Section 202 by following the principles of natural justice as provided therein, it is certainly no open to the District Collector unilaterally to come to a conclusion as if the resolution passed by the panchayat on 16.04.2010 approving the approval granted by the executive authority, dated 05.04.2010 is invalid or without jurisdiction or such approval has been granted unilaterally by the president without resolution of the panchayat when such resolution is not a condition precedent as per the statutory rules or based on any other reasons. This aspect has also not been considered by the learned single Judge."

Finally, in para 52 it has been held as follows:-

"52.In the result,

i)W.A.(MD).Nos.14 & 15 of 2011 are allowed and the impugned orders, dated 11.10.2010 and 04.10.2010 are set aside.

ii)W.A.(MD).No.97 of 2011 stands ordered with a direction to the President of the Panchayat and the Inspector of Panchayats, namely, the District Collector, to act as per the provisions of the Rules as well as the Act after giving opportunity to the writ petitioner as well as the public and others who are likely to be affected in respect of granting of permission by the executive authority namely, the President dated 05.04.2010 and pass appropriate orders.

iii)The writ appeals No.885 of 2011 and 238 of 2011 stand dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed."

17.After the disposal of the said Writ Appeals, the petitioner/company sent a letter dated 31.01.2012 to the 2nd respondent seeking for extension of building permission for further period of two years. In receipt of the same, the impugned order came to be passed stating that the originally permission was granted for only one year and during that period, the building has not been constructed and application for renewal was not made 30 days prior to the lapse of permission and hence, there is no scope for renewal and the application was rejected.

18.The contention raised by the petitioner was that the full period for one year to complete the construction of poultry farm and feed mill was not given to the petitioner as the permission granted on 05.04.2010 was cancelled by the 2nd respondent panchayat on 04.10.2010 and the cancellation order was challenged before this Court and the final orders were passed in writ appeals only on 16.09.2011. Hence, the petitioner was not given full period of one year to construct the building as per the building permission. The earlier permission was cancelled prematurely and the same was challenged in the writ appeals, the same was disposed of only on 16.09.2011 and hence, the question of making application for renewal before 30 days of the lapse of permission did not arise.

19.In the counter affidavit filed by the 2nd respondent, it was contended that the contentions of the petitioner that no sufficient time was granted to the petitioner in view of the earlier proceedings before this Court may not be correct. Even after the order passed by this Court in Writ Appeals on 16.09.2011, the petitioner did not immediately approach the Panchayat, though the original order dated 05.04.2010 lapsed on 04.04.2011 itself. The petitioner's request for renewal was made only on 31.01.2012, almost after a period of four months after the orders were passed in the writ appeals. As on date, the permission granted by the Panchyat Union is lapsed and plan approval is also lapsed.

20.Mr.T.Mohan appearing for the Panchayat contended that even the pendency of the proceedings did not also preclude the petitioner from applying for renewal and that even that period has also come to an end.

21.The question that arises for consideration is whether the petitioner's request for renewal can be granted as per the Tamil Nadu Panchayat Building Rules.

22.It is admitted that the originally building permission was granted for a period of one year on 05.04.2010 and it lapsed on 04.04.2011 and the building construction has not been completed during the said period. Assuming that there was no request for renewal due to the pendency of the proceedings, even then the writ appeals were finally disposed on 16.09.2011 and that period is excluded, still the petitioner did not apply for renewal 30 days prior to the expiry of the building permission. Therefore, the petitioner cannot be allowed to contend against the teeth of the statutory provision.

23.In this context, a reference is made to the judgment of this Court in Kousic & Co. Vs. The District Collector, Erode & others reported in 2012 Writ L.R. 559 for contending that a Unit cannot run without getting running licence and they are bound to take permission/licence to install machineries and run the unit and the said condition is mandatory as failure to get licence will lead to penal consequences.

24.In view of the above, it is held that petitioner is not having currency of building permission and the writ petition in W.P.(MD).No.3085 of 2012 is liable to be dismissed.

25.Hence, the question of putting up their construction as found in their letter dated 30.12.2012 and for consequently police protection also does not stand for scrutiny of law. In this context, a reference was made to the judgment in CDJ 2012 MHC 3661 (GAIL India Ltd. rep by its Senior Manager (Law) Vs. The State of Tamil Nadu, rep by its Secretary to Government, Home Department & others) for contending that the grant of police protection is not automatic and if the aggrieved person filed a petition for protection, only in case there was a failure on the part of the Police to take action even in the teeth of congnizable offence, the Court may grant direction suitably. Hence, the writ petition in W.P.(MD).No.586 of 2012 is also liable to be dismissed.

26.In view of the above, both the above writ petitions are dismissed. Consequently, connected Miscellaneous Petitioner is clsoed. No costs.

ssv To:

1.The Superintendent of Police, Karur District, Karur.

2.The Inspector of Police, K.Paramathi Police Station, Aravakurichi Taluk, Karur District.

3.The Sub-Inspector of Police, Thennilai Police Station, Aravakurichi Taluk, Karur District.

4.The President, Kodanthur Village Panchayat, Aravakurichi Taluk, Karur District.

5.The District Collector-cum-Inspector of Panchayats, Karur District, Karur.