Communication by Executive officer not an order u/s 250.

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.

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 and the Municipal Commissioner and it was protracted for a long time. Oh 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.

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 act 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 t