Madras High Court
Elephant G. Rajendran vs The District Collector on 31 January, 2008
Bench: A.P. Shah, F.M. Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :31.01.2008 CORAM THE HON'BLE MR. A.P. SHAH, CHIEF JUSTICE and THE HON'BLE MR. JUSTICE F.M. IBRAHIM KALIFULLA W.P.NoS.32747 and 32855 of 2007 and M.P.Nos.1 & 2 of 2007 in W.P.No.32747 of 2007 and M.P.Nos.1 & 2 of 2007 in W.P.No.32855 of 2007 Elephant G. Rajendran ..Petitioner in both the petitions Vs. 1. The District Collector Ooty, Nilgiris District 2.The District Forest Officer Ooty, Nilgiris District 3.The Commissioner Ooty Municipality Ooty, Nilgiris District 4.The Town Planning Officer Ooty Municipality Ooty Nilgiris District 5.The Superintending Engineer Tamil Nadu Electricity Board Distribution Circle Avin Complex, Ooty, Nilgiris District. 6.The Superintending Engineer Tamil Nadu Water and Drainage Board Baikey House Baikey Road, Ooty, Nilgiris District. ..Respondents in W.P.No.32747 of 2007 1. The Secretary Housing and Urban Development Department Government of Tamil Nadu Secretariat Chennai -9. 2. The Special Commissioner Town and Country Planning Chepauk, Chennai -5. 3. The District Collector Ooty, Nilgiris District 4.The Commissioner Ooty Municipality Ooty, Nilgiris District 5.The Town Planning Officer Ooty Municipality Ooty Nilgiris District 6.The Superintending Engineer Tamil Nadu Electricity Board Distribution Circle Avin Complex, Ooty, Nilgiris District. 7.The Superintending Engineer Tamil Nadu Water and Drainage Board Baikey House Baikey Road, Ooty, Nilgiris District. ..Respondents in W.P.No.32855 of 2007 Writ Petitions filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus. For Petitioner: Mr.Elephant G.Rajendran For Respondents : Mr.Raja Kalifulla Government Pleader. ORDER
(Order of the Court was made by F.M.IBRAHIM KALIFULLA,J.) These two writ petitions are Public Interest Litigations preferred by a practising advocate of this Court. In the above writ petitions, the petitioner seeks for a direction to respondents 1 to 4 for taking necessary legal action for demolition of all illegal and unauthorised constructions built in violation of Section 217-B of the Tamil Nadu District Municipalities Act, 1920 and the Town and Country Planning Act, 1971 in four Taluks, namely, Ooty, Gudalur, Kothagiri and Coonur of Nilgiris District.
2. In M.P.Nos.1 and 2 of 2007 in W.P.No.32855 of 2007, the petitioner seeks for an interim direction to respondents 1 to 5 for filing a detailed report as to the number of buildings which were constructed in violation of the planning rules in the above referred to Taluks. Similarly, such interim directions were sought for in M.P.No.1 and 2 of 2007 in W.P.No.32747 of 2007 and also for a direction to disconnect power, water and sewerage connections.
3. When these writ petitions came up for hearing on 19.11.2007, interim directions were issued to respondents 5 and 6 in W.P.No.32747 of 2007 and 6 and 7 in W.P.No.32855 of 2007 restraining them from granting electricity/water service connection to any building or farm house or any structure which have been constructed without any sanctioned plan.
4. Subsequently, by order, dated 4.12.2007, taking note of the affidavit filed by the third respondent-Commissioner (W.P.No.32747 of 2007), where certain details were furnished as regards different classifications such as residential zone, agricultural zone, water bodies etc. and also total number of unauthorised constructions made after 1993, the Commissioner was directed to file a comprehensive affidavit in respect of the following:-
a. Details of the demolition process carried out in respect of the unauthorised constructions in the agricultural lands/town area of Udhagamandalam.
b. The status of the criminal cases filed in the Judicial Magistrate's Court. Copies of orders, if any, passed therein also to be furnished.
c. Particulars of the writ petitions and civil revision petitions pending in this Court in respect of the unauthorised constructions.
d. Particulars of review petitions pending with the Government.
5. The District Collector, Udhagamandalam, was also directed to file a detailed affidavit in respect of the unauthorised constructions in Udhagamandalam and surrounding areas of Nilgiris. Thereafter, further affidavit was filed by the third respondent, District Collector (W.P.No.32855 of 2007), dated 3.1.2008. In both the writ petitions, along with the affidavits, the third respondent also filed two booklets, one booklet containing all those unauthorised construction made between 1993 and 2007 and another booklet containing the steps taken by way of demolition, prosecution etc. as well as certain pending litigations as against the notices issued for demolition. Thereafter, the petitioner filed his memo of objection to the counter affidavit. He also placed before us a set of photographs said to have been taken by him on 29.11.2007 and according to the petitioner, with reference to those buildings which have been constructed beyond ground and first floor in violation of the provisions of Chapter X-A of the Tamil Nadu District Municipalities Act (V of 1920) which governs and regulates constructions in Hill Stations and with reference to which the District Collector failed to furnish the details before this Court.
6. While making his submissions, the petitioner placed reliance upon the provisions contained in Chapter X-A of the District Municipalities Act as well as the Tamil Nadu District Municipalities (Hill Stations) Buildings Rules, 1993, apart from relying upon the decisions of the Division Bench of this Court reported in 1995-2- Writ L.R. 737 ( Palani Hills Conservation Council rep. by its President Navroz Mody Vs. The State of Tamil Nadu rep. by its Secretary to Government, Rural Development and Local Administration Department, Madras and three others), (2006) 7 SCC 597 (Royal Paradise Hotel (P) Ltd., Vs. State of Haryana and others) and the order, dated July 2007 passed in W.P.No.2504 of 1995 (The Palani Hills Conservation Council rep. by its Vice President Mr.Navroz Mody Vs. The Union of India rep. by its Secretary to Government Municipal Administration and Water Supply, Fort St. George, Madras-9 and four others). 7. The petitioner fervently contended that in order to maintain the ecological balance in the hill station of the Nilgiris District every effort should be made to implement the regulatory measures in the form of various provisions contained in Chapter X-A as well as the Rules referred to above in respect of the construction of any building, as otherwise, it will pose a serious environment problem, which will not be in the best interest of the public at large.
8. Mr.Raja Kalifulla, learned Government Pleader appearing for the respondents in his submissions, contended that the authorities have been consciously implementing the provisions contained in Chapter X-A of the Tamil Nadu District Municipalities Act as well as the relevant Rules framed thereunder and that barring unauthorised and illegal constructions which are subject matter of the writ petitions and revision petitions in this Court as well as the review applications pending before the Government, the respondents are ready to take necessary steps for demolishing the unauthorised and illegal constructions, if any, by following the relevant rules and report the same to this Court.
9. Having heard the learned Government Pleader, we are inclined to pass this order keeping the writ petitions pending in order to ensure that the statutory prescriptions contained in Chapter X-A of the Tamil Nadu District Municipalities Act and Rules are scrupulously enforced.
10. In this context, we wish to refer to the emphasis made by the Division Bench of this Court in the decision reported in 1995-2-Writ L.R. 737 (Palani Hills Conservation Council rep. by its President Narvoz Mody Vs. The State of Tamil Nadu rep. by its Secretary to Government, Rural Development and Local Administration Department, Madras and three others) which decision was also upheld by the Supreme Court in the decision reported in 1995 Writ L.R. 769 (Pleasant Stay Hotel & Anr. Vs. Palani Hills Conservation Council & Ors.). Para 36 of the said decision can be usefully referred to, which reads as under:
"36. It is too will known that the purpose of preparing and publishing Master plan for a locality and particularly a Hill Station is to maintain an environmental balance. It is the duty of courts to uphold environmental laws and prevent the State and citizens from upsetting the same by any means. The Rules are framed with the object of preserving the nature's gifts to the living beings such as air, earth, water and atmosphere and protecting them against pollution and if lost those gifts cannot be replaced or replenished. Failure to protect the same causes irreparable harm not only to the present generation but also the Posterity. That is why Articles 48-A and 51-A(g) were introduced. It has been held that the right to life embodied in Article 21 of the Constitution contemplates environment of quality. There is no ground whatever in this case for relaxing the provisions in the Master Plan particularly with reference to F.S.I. Large scale violation of F.S.I. in this country came to be noticed by the Supreme Court in Pratibha Co-operative Housing Society Ltd. Vs. State of Maharashtra (AIR 1991 SC 1453) and condemned in the following words:-
"We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings."
In that case, the F.S.I. Violation was found to be or more than 24,000 sq.ft. And the Court upheld the demolition of the eight floors of the building. In the present case the violation is 182% as stated earlier. It is needless to say that any Government that ignores the sanctity of a Master plan and relaxes the Rules without proper reasons is only laying the road to deterioration of environment and thus acts against public interest. "
11. In paragraph 50 of the very same judgment, the Division Bench referred to another decision of the Hon'ble Supreme Court reported in AIR 1987 SC 1109 (Shri Sachidanand Pandey V. State of W.B.) wherein Articles 48-A, 51-A(g) of the Constitution were referred to. The relevant portion of the said paragraph is to the following effect.
"50. In Shri Sachidanand Pandey Vs. State of W.B. (AIR 1987 SC 1109). The Court said that whenever a problem of ecology is brought before it, the Court is bound to bear in mind Art.48-A of the Constitution, which enjoins that the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country and Article 51-A (g) which proclaims it to be the fundamental duty of every citizen of India to protect and improve the natural environments including forests, lakes, rivers and wild life and to have compassion for living creatures."
12. Again, in paragraph 58, the Division Bench has made a reference to the purport, intent and object to the introduction of Chapter X-A in the Tamil Nadu District Municipalities Act in a very lucid manner, which reads as under:-
"58. Learned Senior counsel for the Hotel has been making some remarks derisively that there is no object for introduction of Chapter X-A as contended by learned counsel for the petitioner and the only purpose and effect of the said Chapter are to vest the power of sanctioning building applications exclusively with the Government. We are unable to accept this contention. We have already referred to the Statement of Objects and Reasons of the Tamil Nadu Amending Act 58 of 1992, which has introduced Chapter X-A in the District Municipalities Act. It is hardly necessary for us to repeat the same here. We would, however, point out that the Committee which is constituted under Section 217-B is not only a High level Committee but also an expert Committee. We have referred to the composition thereof as prescribed in Rule 26. A perusal of the preamble to the Amendment Act as well as the provisions in Chapter X-A read along with the Rules framed thereunder, leave no doubt in our mind that the object of the amendment is to preserve the pristine purity of hill stations and maintain ecological balance. The impugned G.O. throwing overboard all the relevant matters set out in the Sections and the rules is without doubt illegal and invalid as it is arbitrary and based on irrelevant matters." (Emphasis added)
13. To the same effect was the decision of another Division Bench of this Court reported in 2005 (4) CTC 1 (L.Krishnan vs. State of Tamil Nadu, represented by its Secretary, Department of Revenue (Land Development), Fort St. George, Chennai-9) to which one of us (F.M.I.K.J.) was a party. In paragraphs 12 and 13, the Division Bench has referred to the significance of Articles 21, 47, 51-A(g) of the Constitution by making specific reference to two decisions of the Hon'ble Supreme Court reported in Animal and Environment Legal Defence Fund V. Union of India, 1997(3) SCC 549 and M.C.Mehta V. Union of India 1997 (3) SC 715. The said paragraphs read as under:-
"12. Apart from the above we may also refer to Article 51-A(g) of the Constitution which makes it a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life". This duty can be enforced by the Court, vide Animal and Environment Legal Defence Fund V. Union of India (supra, vide para-15). 13. In M.C.Mehta v. Union of India, 1997(3) SCC 715 (vide para-10) the Supreme Court observed:- "Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the cause of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes." (Emphasis added)
14. we make a detailed reference to above passages in the reported decisions in order to give a thrust to the necessity of implementing and enforcing the provisions contained in Chapter X-A of the Tamil Nadu District Municipalities Act without any deviation or otherwise, any slackness in such enforcement would be highly detrimental to the interest of the society at large. It will not be out of place if we take judicial notice of the house collapse reported in Coonur as published in "The Deccan Chronicle", dated 14.2.2008, which reported that the house situated in a sloped terrain close to a road under renovation, where gravel and stones were dumped on the roadside obstructing the flow of flood-water from getting into the channels and that the water seeped its way down the terrain and damaged the mud wall of the house which collapsed in which two persons including a three year old were killed. Apparently, such disasters, natural and man-made are taking place solely due to the extensive damage caused to natural Hillock of the Udhagamandalam stretch by the unmindful and extensive conversion of the natural environment of the Hillock by resorting to man-made structure of very high magnitude out of self interest to make money and thereby put the life of the inhabitants both human as well as animals into great peril. Therefore, time has come for this Court to goad the authorities concerned, namely, the respondents herein to take every effort under law, scrupulously implement the same and thereby restore the glory of the Hillock, if not to its original stature, but at least to maintain status quo ante that was prevailing immediately before the devastating structures.
15. With the above said purport and intent of the legislation in our mind, when we examine the violations pointed out by the petitioner which have been admitted to a large extent by the respondent herein, we feel that the district administration of Udhagamandalam should swing into action and set right the violations by taking appropriate measures so that the future environment of the Udhagamandalam hill area is protected without causing any more destruction on environmental aspects.
16. A Cursory glance of the petitioners' affidavit as well as the counter affidavit disclose that there were wide spread violations, in the matter of construction of buildings in the towns of Ooty, Gudalur, Kothagiri and Coonur. It is true that being a hill resort, there would be a large scale craving for tourists not only from this State but also from the neighbouring and other states to throng in large numbers to the above townships as part of their tour programme. However, in the larger public interest, it is the paramount duty of the district administration to scrupulously apply the construction rules as prescribed in Chapter X-A of the Act as well as the relevant rules and eliminate all such unauthorised constructions made in violation of the Rules that alone would ensure proper safety and avert any catastrophe in the hill stations which are very vulnerable to natural disasters like landslide, etc.,.
17. In fact, it is common knowledge that on more than one occasion large scale landslides had taken place in this hillock in which heavy casualties were reported and in fact on one occasion the bodies of the unfortunate victims got buried in the landslide and they could not be retrieved even for a customary burial. Keeping in mind, the above factors, it will have to be held that the unauthorised constructions in the agricultural lands as well as in the townships as detailed in the two booklets furnished by the District Collector, warrant stringent and drastic action by strict implementation and enforcement of the provisions contained in Chapter X-A of the Act, in particular Sections 217-E, F, G, H, I and J of the Act.
18. In the booklets submitted before this Court, it is stated that there were as many as 120 unauthorised constructions in the agricultural land, out of which, only two buildings have been demolished and criminal proceedings were initiated against 37 unauthorised and illegal constructions. Therefore, apart from the two cases, where demolition has already taken place, in respect of the rest of 118 unauthorised and illegal constructions made in the agricultural land, the District Collector should take necessary steps for demolition of those structures.
19. It is also reported that 1337 unauthorised constructions have been made in the above referred to four taluks, namely, Ooty, Gudalur, Kothagiri and Coonur between the years 1993-2007. On a perusal of the said list, we find that such constructions were made either for residence or for commercial purposes. In fact, we find that two persons by name, Sreedaran and D.Jayaramdass have resorted to construction of cottages known as Swiss view cottage in Mount plasant road more than 30 units of different dimensions in one particular area of Theetukkal. We are only pointing out one such construction in order to show that such constructions resorted to by those two individuals could have never escaped the attention of the authorities and such constructions were stated to have been made very recently, i.e. on 18.9.2007. It is, therefore, imperative that as undertaken by the District Administration and as has been reported before this Court by the Government Pleader on their behalf every necessary step should be taken forthwith to curb this widespread, unauthorised and illegal constructions in the hillock of Nilgiris without giving scope for any anarchy. 20. We, therefore, direct the respondents 1 to 4 in W.P.No.32747 of 2007 to take necessary steps by enforcing the provisions contained in Chapter X-A of the Tamil Nadu District Municipalities Act after giving necessary opportunities to the concerned owners of the land or other persons responsible for such unauthorised and illegal constructions and on being satisfied with such illegal constructions, take necessary steps for demolition of such unauthorised and illegal constructions. The above said respondents shall also take necessary steps for getting the interim orders vacated in the proceedings pending in this Court and also with the State Government and in the event of such interim orders being vacated in the said proceedings carry out the directions for demolition in the same manner as referred to above.
The above said respondents shall carry out the above said exercise within a period of three months from the date of receipt of a copy of this order and file a compliance report in the Registry. Call these writ petitions, again, after three months. (i.e) on 9.6.2008.
RNB To
1. The Secretary Housing and Urban Development Department Government of Tamil Nadu Secretariat Chennai -9.
2. The Special Commissioner Town and Country Planning Chepauk, Chennai -5.
3. The District Collector Ooty, Nilgiris District
4.The Commissioner Ooty Municipality Ooty, Nilgiris District
5.The Town Planning Officer Ooty Municipality Ooty Nilgiris District
6.The Superintending Engineer Tamil Nadu Electricity Board Distribution Circle Avin Complex, Ooty, Nilgiris District.
7.The Superintending Engineer Tamil Nadu Water and Drainage Board Baikey House Baikey Road, Ooty, Nilgiris District.