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Judgment
T.S. Sivagnanam, J.—In both these Writ Petitions, the Petitioner is one Mr. V.A. Arunachalam and his grievance is against the Private Respondents alleging that they are operating a Granite Polishing Unit with a connected electricity load of more than 110 KVA and that the unit has been established in a Primary Residential Zone and therefore, the electricity connection should be disconnected and the Unit should be directed to be closed.
In W.P. No.5233 of 2014, the Petitioner seeks for a direction upon the official Respondents to consider his representation and consequently, direct the Assistant Engineer, Distribution and Maintenance TNEB, Cithode West, not to give electricity connection for commercial purpose. Initially the Private Respondents were not parties, but were impleaded as Respondents 4 to 7, by Order dated 28.8.2014 in M.P.
In W.P. No.9374 of 2014, the Petitioner seeks for issuance of a Writ of Certiorarified Mandamus, to quash the Order dated 22.4.2013, passed by the Member Secretary, Cithode, New Township Development Committee and to restrain the Respondents from acting in pursuance to the said communication and to stop industrial activity in Survey No.109/2, Kumilamparappu Village, Cithode, Erode District, carried on by the Fifth Respondent, M/s. G.V. Granite Factory.
The Petitioner''s case is that he is the resident of the said area and the land in R.S. No.109/2, is classified as a Primary Residential Area (PR-1). In this regard, the Petitioner would rely upon a Certificate issued by the Member Secretary, Cithode, New Town Planning and Development Authority, dated 25.2.2013. It is stated that the Fifth Respondent M/s. G.V. Granites were running a Granite Cutting and Polishing Unit opposite to the Petitioner''s house, objecting the same, the Petitioner submitted representations to the Respondents 1 & 2 and since no action was taken, the Petitioner approached this Court by filing W.P. No.31635 of 2013, and this Court directed the representations to be considered within a time frame. After such direction was issued, another person by name Tmt. Sivagami was attempting to establish a Power Loom Unit and had applied for Electricity Service Connection. Therefore, the Petitioner sent representations to the Authorities and since no action was taken, he approached this Court by filing W.P. No.5233 of 2014.
Mr. R. Subramanian, learned Counsel appearing for the Petitioner submitted that the Second Respondent in response to a query under the Right to Information Act, by reply dated 25.2.2013, stated that the area/land in question has been classified as a Primary Residential Area (PR-1) and subsequently, when the Sixth Respondent who is the partner of M/s. G.V. Granites made a same query under the Right to Information Act to the Second Respondent, a reply was given dated 22.4.2013, stating that the entire R.S. No.109 is a Commercial Area. In spite of objections, since no action was taken, the Petitioner filed W.P. No.9374 of 2014, challenging the reply given under the Right to Information Act to the Seven Respondent stating as if R.S. No.109 is a Commercial Area. It is further submitted that along with the reply under Right to Information Act, dated 10.2.2014, copy of Annexure C was enclosed, which gives the Survey Numbers of the property in Cithode, New Town Development Plan and the appropriate land use classification. By referring to said Annexure, it is submitted that Survey No.109 is classified as Primary Residential Zone. Further, it is submitted that when the Pollution Control Board conducted a test in the locality, it found that the air quality was above the norms and it was stated that explanation has been called for from the Unit. Further, it is submitted that in the impugned Order dated 22.4.2013, it is stated that it is a Commercial Area/Zone and even assuming it is so, no establishment using Electric Motors not exceeding 50HP can be used in such Zone and the Respondent having connected the load of 120 KVA cannot operate the Unit.
Further, it is submitted that the Petitioner filed a Complaint before the National Green Tribunal, Southern Zone, Chennai in Application No.80 of 2013, (SZ) and notice was ordered to the Tamil Nadu Pollution Control Board and the officials of the Revenue Department appeared before the Tribunal and while answering the allegation, it was accepted that Survey No.109 is yet to be approved as a Commercial Zone and till such approval is granted, it is a Residential Area and while giving reply under Right to Information Act, it has been wrongly stated that it is a Commercial Zone. In fact, before the Tribunal, the officials pleaded that it is not an intentional act on the part of the Officers in giving contradictory information. The Tribunal, while disposing of the matter, granted liberty to the Petitioner to approach the Appellate Authority constituted under the Air Prevention and Control of Pollution Act with a direction to the Appellate Authority to take up the matter, if the Appeal is preferred within 30 days. It is submitted that the Petitioner preferred Appeal on 10.10.2013 against the order granting consent under the Air Prevention and Control of Pollution Act. However, the Appeal was returned by the Appellate Authority on the same date and the Petitioner was informed that the consent has already expired and therefore, no Appeal is maintainable. With the above facts, the learned Counsel seeks for setting aside the Order dated 22.4.2013, which was in fact reply given under the RTI Act to Viswanathan, Seventh Respondent and direct the Electricity Board not to give electricity supply.
Mr. T.N. Rajagopalan, learned Special Government Pleader appearing for the Respondents 1 & 2 submitted that the land in S.F. No.109/2, is classified as a Primary Residential Zone and the functioning of the Granite Polishing Factory in a Primary Residential Zone is against the permissible usage. Further in the Counter Affidavit, it is stated that M/s. G.V. Granites has obtained consent from the Tamil Nadu Pollution Control Board and they have remitted Rs.2,725/- for running 75HP electrically operated Granite Polishing Industry. Further with regard to the change of categorisation, the same is pending approval before the Competent Authority.
Mr. S.K. Raamesuwar, learned Counsel appearing for the Electricity Board by referring to the Counter Affidavit submitted that one Tmt. Sivagami requested for service connection for her power loom in S.F. No.109/2 and as per Board norms, Application was received and estimate was prepared and after completing the one pole line extension, the service was effected on 25.2.2014. Further, it is stated that in terms of Tamil Nadu Distribution Code in Chapter 6, Para 27(10), the Board will refuse to supply electricity for any industry including welding purpose in any predominantly Residential Area. Further, it is submitted that the disputed area of S.F. No.109/2, the supply is feeding from the Distribution Transformer at Kumilamparapu and there are two Power Loom Industrial Service connection, which have been converted as commercial usage, two Domestic service connections given to the Writ Petitioner, two Power Loom Industrial Service Connections and one Industrial Service connection to Mr. Viswanathan for the Granite Polishing Unit. That apart new Power Loom Service connection was effected to Tmt. Sivagami. Further in the Counter Affidavit it is stated that the Board will abide by the orders to be passed by this Court.
Mr. A.R.L. Sundaresan, learned Senior Counsel assisted by Mr. M. Guruprasad, learned Counsel appearing for the Private Respondents, the Granite Factory, submitted that the Petitioner is not an aggrieved person and the impugned Communication dated 22.4.2013, is nothing, but a communication sent to Viswanathan for a query raised by him under the Right to Information Act and such proceedings cannot be quashed. Further, it is submitted that the Petitioner has filed these Writ Petitions targeting the Private Respondent alone and except for the Petitioner''s residence, all other establishments are Commercial establishments and in fact, the Writ Petitioner was running a Power Loom adjoining his residence, enjoying a Commercial Service connection and such Power Loom was in existence for 14 years. Further, it is submitted that the Writ Petition itself is on account of jealousy and mala fide intention against the Respondents. Further, it is submitted that the Respondent has obtained consent from the Pollution Control Board and periodical inspections have been conducted by the officials of the Board and the Petitioner has applied for renewal of the consent granted by the Board. Further, it is submitted that the Petitioner has not made any Complaint about any other persons, who are having other Commercial establishments in the same area. The learned Counsel referred to the order of consent granted by the Tamil Nadu Pollution Control Board and the remittance of the renewal fee on 20.6.2014 for renewal of the consent granted and the same is still pending with the Authorities.
Heard the learned Counsels appearing for the parties and perused the materials placed on record.
The impugned Order in W.P. No.9374 of 2014, is a Communication/Reply given under the Right to Information Act to Mr. Viswanathan, who is the Partner of M/s. G.V. Granites. It appears that he sought for information as regards the classification/zonation of Survey No.109, Kumilamparappu Village, Cithode, Erode District. The Second Respondent namely, Cithode, New Town Planning and Development Authority informed Viswanathan that Survey No.109 is a ''Commercial Zone''. This communication issued by the said authority is palpably false. The Petitioner made a similar request to the Cithode New Township Development Authority requesting for the classification of the said land namely, Survey No.109. The Authority by Reply dated 25.2.2013, informed the Petitioner that the land is classified as a ''Primary Residential Zone (PR-1)''. It is not known as to how within two months, the same Member Secretary Mr. P. Renganathan could take a different stand and state that Survey No.109 is a Commercial Zone. The stand taken by the Authority in its Communication dated 22.4.2013, is absolutely false, apart from the action being arbitrary and unreasonable. While filing a Counter Affidavit in this Writ Petition, the same Member Secretary Mr. P. Renganathan states on oath that the land in survey No.109/2 is classified as ''Primary Residential Zone''.
Thus, it is clear that the Member Secretary has made a false statement while issuing the Reply dated 22.4.2013 and this should be taken note of by the District Collector, Erode District, who is the Chairman of the District Planning and Development Authority. Under normal circumstances, a Writ of Certiorari will not be issued to quash a reply received under the RTI Act at the instance of the person, who sought for information. However, in the instant case, the impugned Communication dated 22.4.2013 has been misused by Viswanathan-Partner of M/s. G.V. Granites for commencing/running a industrial activity in a ''Primary Residential Zone''. Therefore, this Court is justified in exercising jurisdiction under Article 226 to quash the said Communication, dated 22.4.2013. That apart when similar Complaint was made by the Petitioner before the National Green Tribunal, the Authorities appeared before the Tribunal, accepted their mistake and pleaded pardon by stating that a mistake has crept in and there is no intentional act on the part of the officers in giving contradictory information. The Tribunal was satisfied with the plea taken and the personal appearance of the officers was dispensed with. In spite of such development having taken place in August 2013, if there is any attempt on the part of the private parties or the officials to use the said Communication dated 22.4.2013, for any other collateral purpose, the same has to be put an end too. Therefore, the communication dated 22.4.2013, given by the Member Secretary of the Second Respondent is quashed.
As notice above the Second Respondent has candidly admitted that the land in question is a '' Primary Residential Zone''. The Assistant engineer of the Electricity Board while admitting that the Electrical connection has been given of Commercial activity for two person in the ares would sate that in terms of Chapter 6, Para 27(10) of the Tamil Nadu Electricity Distribution Code, the Board will refuse supply for any industrial activity in predominantly Resident Area.
In the light of the facts as noticed above, the Petitioner has been continuously agitating his rights before the Respondents at the first instance before the National Green Tribunal and the Tamil Nadu Pollution Control Board and has thereafter approached this Court. Though the private Respondents alleged mala fide against the Petitioner, no material has been produced to prove any such allegation of mala fide, except to state that there are several others carrying on non-residential/Industrial activity in the area. Therefore, the plea raised by the Private Respondents that the Petitioner does not have locus standi to maintain the Writ Petition, is rejected.
Thus as on date, if the land in question has been classified as a ''Primary Residential Zone (PR-1)'', the question of permitting an Industrial/Commercial activity is impermissible in law. The proposed conversion into Commercial Use Zone, is yet to be approved by the Competent Authority and the same if approved, would not permit establishment of like Industrial activity with more than 50HP Power connection. The Private Respondents are said to have obtained 110KVA connection and curiously enough in the Counter Affidavit filed by the Assistant Engineer (O&M) West, Cithode, Mr. B. Robin Sargunaraj, conspicuously the connected load has not been mentioned. It is rather surprising that the official of the Electricity Board while filing a Counter Affidavit has not mentioned about the connected load, which has been granted to the Private Respondents.
Be that as it may in the Counter Affidavit filed in W.P. No.5233 of 2014, the Board has agreed to abide by any Orders passed by this Court.
In the light of the above, as long as the classification of the area does not provide for running of an industry, the functioning of the Granite Factory, Power Loom for that matter any Industrial activity is impermissible in Survey No.109/2.
In the result, the W.P. No.9374 of 2014, is allowed and the impugned proceedings dated 22.4.2013, issued by the Third Respondent is quashed and W.P. No.5233 of 2014 is disposed of and the Respondents 1 to 4 are directed to take appropriate action against the Private Respondents and not to permit any Industrial activity in the ''Primary Residential Use Zone''.
No costs. Consequently, connected Miscellaneous Petitions are closed.