The main legal point established in the judgment is that commercial activities in a primary residential use zone, in violation of relevant Acts and regulations, are impermissible in law.

The petitioner seeks to challenge the proceedings of the first and second respondents. By order dated 16. 2007 in G.O.(D) No.151, the first respondent has confirmed the Discontinuance Notice issued by the second respondent in his letter No.ESI/11721/2002 dated 08.09.2006. The petitioner is running a commercial activity at No.66/47, I Main Road, Raja Annamalaipuram, Chennai-28, where it is engaged in "selling sweets, fruits and vegetables to the intending customers". There was an earlier round of litigation wherein in a writ petition preferred by the third respondent herein in W.P.No.35483 of 2002 an order came to be passed by the Division Bench of this Court dated 1. 2005. In that order the Division Bench has held as under:

"24. Moreover, under rule 7(1)(x) of the Development Control Rules, the number of employees should not exceed 25, but, as seen from the documents submitted by Suriya Sweets when it applied for consent from the Pollution Control Board show that the number of employees in Suriya Sweets exceeds 25. We therefore hold that Suriya Sweets is not a cottage industry and the location of the commercial establishment in the primary residential use zone is not permissible.

25. As far as the permission granted by the Corporation of Chennai is concerned, it was issued as a licence for trading. We find the Chennai City Municipal Corporation Act, 1919 was enacted prior to the Town and Country Planning Act, 1971 as well as Pollution Control Acts. The Chennai City Municipal Corporation Act has not made any distinction between the primary residential use zone and other zones and the fact that permission has been obtained from the Chennai Corporation to trade in the area in question is not at all material as Suriya Sweets, in its location, has violated the provisions of the town and Country Planning Act which is later enactment. Hence, we direct the second respondent (CMDA) to take necessary action under the Town and Country Planning Act, 1971." (underlining is mine)

2. Pursuant to the said Division Bench Order, the present impugned orders have been passed by the first and second respondents. The second respondent in its order dated 9. 2006 has held that the business of running sweet stall, vegetables and fruits at Door No.66/47, 1st main Road, Raja Annamalaipuram in a residential building is against the Development Control Rules and that for any change of use prior permission from the competent authority is needed. Hence, The petitioner was directed to discontinue the usage of the building.

3. As against the above order, the petitioner preferred an appeal and the appellate authority viz., the first respondent herein passed the impugned G.O.(D).No.151 dated 12.06.2007 wherein it has held that in the primary residential use zone, petty shops dealing with daily essentials and trades declared as non-offensive, occupying a floor area not exceeding 20 square meters, cottage industries with installations not higher than 5 HP with a maximum number of 25 employees alone is permissible, but the petitioner has put into use 1043 square meter of area for trading activity in the ground floor and the first floor with 40 persons working at the time of inspection by the second respondent. It is also held that some payment of regularization fee of Rs. 1,56,457.50 was collected from the owner of the building cannot be a ground for continuation of the violation committed by the petitioner. The Discontinuance Order issued by the second respondent dated 9. 2006 was therefore confirmed by the impugned order.

4. Assailing the Order, Mr. Premkumar, learned counsel for the petitioner by making a specific reference to section 56(4)(a) and (b) (ii) of the Tamil Nadu Town and Country Planning Act, 1971, would contend that the petitioner has filed an application for regularization as early as on 23.05.2002 of the alleged land/house violation and that so long as that application is pending the impugned discontinuance order cannot be made. Accord