Madras High Court
Chandrasekaran Avenue Residents vs The Managing Director on 19 August, 2019
Author: M.Dhandapani
Bench: M.Dhandapani
W.P. 15491 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2019
CORAM
THE HONOURABLE Mr.JUSTICE M.DHANDAPANI
W.P. 15491 of 2010
and
M.P. 2 of 2010
Chandrasekaran Avenue Residents
Welfare Association,
rep. by Mr.P.K.Balakrishnan,
President
Plot No.122, Chandrasekaran Avenue,
Thoraipakkam,
Chennai-600 097. ... Petitioner
Vs
1. The Managing Director,
Chennai Metropolitan Water
Supply and Sewerage Board,
No.1, Pumping Station Road,
Chintadripet,
Chennai-600 002.
2. The President,
Okkiam Thoraippakkam 1st Gr.
Panchayat Union,
Thoraippakkam,
Chennai-600 097.
3. The Member Secretary,
Chennai Metropolitan Development
Authority,
Thalamuthu Buildings,
Egmore, Chennai-600 008. ... Respondents
1/11
http://www.judis.nic.in
W.P. 15491 of 2010
PRAYER : Writ Petition filed under Article 226 of the
Constitution of India, praying to issue a Writ of Certiorarified
Mandamus, to call for the records of the 2nd respondent in his
proceedings dated 07.09.2009 conveying the park area to 1st
respondent and quash the same and consequently direct the 1st
and 2nd respondents herein to consider the representation of the
petitioner to relocate the sewerage pumping station in the
vacant lands in the 2nd respondent's area.
For Petitioner : Mr.R.Suryanarayana Rao
For Respondents : Mr.M.Jothikumar for R1
Mr.J.Ramesh,
Addl. Govt. Pleader for R2
Mr.S.Thiruvengadam for R3
ORDER
This Writ Petition has been filed challenging the impugned proceedings of the 2nd respondent dated 07.09.2009 conveying the park area to the 1st respondent and quash the same and consequently direct the 1st and 2nd respondents to consider the representation of the petitioner to relocate the sewerage pumping station in the vacant lands in the 2nd respondent's area. 2/11 http://www.judis.nic.in W.P. 15491 of 2010
2. The case of the petitioner is that the petitioner association is a registered association under the Tamil Nadu Societies Registration Act, 1975 having Registration No.175/2009. The petitioner association was formed for the welfare of the residents of the Chandrasekaran Avenue to cater to the basic requirements of water, road electricity and other amenities. The Chandrasekaran Avenue was formed in the year 1985 and the layout was approved by the 3rd respondent, formerly known as Madras Metropolitan Development Authority vide letter dated 16.07.1985 and the total approved housing sites in the layout was about 200 plots. As per the guidelines of the C.M.D.A., open areas were left for park in the approved layout and all the plots in the approved layout were purchased and the residents of the above layout formed the petitioner association. Thereafter, the promoter of the above layout handed over the common open areas meant for the park to the 2nd respondent for development of the same as Park for the usage of residents of the above Chandrasekaran Avenue. The promoter of the layout has gifted an approximate open area of 0.23 cents to St. Thomas Mount Panchayat Union vide registered Gift deed dated 3/11 http://www.judis.nic.in W.P. 15491 of 2010 29.11.1985 in document No.3214 of 1985 on the file of Sub- Registrar, Adayar for the purpose of park “Lung Space Area” in Survey Nos.260/Part and 261/Part of Okkiam Thoraipakkam Village.
3. While being so, on 01.10.2009, the officials of the 1st respondent inspected the park at the Chandrasekaran Avenue for the purpose of constructing sewerage pumping station. Immediately after knowing the same, the petitioner association has sent a letter dated 02.10.2009 to the 1st respondent requesting not to construct sewerage pumping station in the park, since on all four sides of the above open area only residential plots are situated. Thereafter, the petitioner association has passed a resolution against the construction of sewerage pumping station and the said resolution was also forwarded to the concerned authority. While being so, the 1st respondent by its letter dated 09.12.2009 communicated the petitioner association that it is only area particularly planned and permitted by M.M.D.A. to develop the same as Park (Lung Space Area) in its approval dated 16.07.1985 and also stated that if the alternative vacant is located for the sewerage pumping 4/11 http://www.judis.nic.in W.P. 15491 of 2010 station, the proposed scheme will be transferred and the plan report will be modified and requested the petitioner association to approach the 2nd respondent to identify the alternate site. Immediately thereafter, the petitioner association sent another letter to the 2nd respondent dated 30.04.2010 seeking further details of handing over of the park to the 1st respondent, but no reply is given till date.
4. The petitioner has further averred that the Director of Municipal Administration, Government of Tamil Nadu has issued a circular dated 09.01.2010 and in para 3 of the above circular, it has been specifically stated that “No park, play field or open space specified in the list under section, except with the previous sanction of the Government be used for any purpose other than the purpose for which it was sanctioned. The 3rd respondent while according approval for layout has sanctioned for provision of park in Survey No.260 Part in the Chandrasekaran Layout. The 2nd respondent also has not obtained any sanction from the Government for converting the park area to sewerage pumping station. However, on 07.09.2009, the local body handed over the open space area for construction of sewerage pumping station. 5/11 http://www.judis.nic.in W.P. 15491 of 2010 Against which, the petitioner association has filed the present Writ Petition.
5. Mr.R.Suryanarayana Rao, learned counsel appearing for the petitioner association would submit that while entertaining the Writ Petition, this Court has granted interim stay against the construction of sewerage pumping station and the interim stay is till date in operation. During the pendency of the Writ Petition, the Divisional Engineer sent a letter to the petitioner association stating that the respondents authorities have recommended to construct the pumping station in the alternative poramboke land and they are not intended to construct the sewerage pumping station in the existing place. In view of the above, this Court may issue a direction to the respondents not to construct the sewerage pumping station in the place earmarked in the Chandrasekar Avenue.
6. Mr.J.Ramesh, learned Addl. Government Pleader appearing for the State, on instructions, would submit that the 2nd respondent authority is searching alternative place for constructing sewerage pumping station. Hence, this Court may issue appropriate orders.
6/11 http://www.judis.nic.in W.P. 15491 of 2010
7. Considering the facts and circumstances of the case, the issue involved in the present case is for construction of sewerage pumping station, whether the authority is allowed to construct the sewerage pumping station in the place earmarked for the general public. This issue was already settled by the Division Bench of this Court in a decision reported in (2007) 3 MLJ 990 in the case of Sri Devi Nagar Residences Welfare Association v. Subbathal and others and a relevant portion of the judgment is extracted hereunder :-
“13. Good parks expansively laid out are not only for aesthetic appreciation, but in the fast developing towns having conglomeration of buildings, they are a necessity. In a crowded towns where a resident does not get anything but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is no less than that of lungs to human beings. It is the verdant cover provided by public parks and greenbelts in a town, which renders considerable relief to the restless public. Hence, the importance of public parks 7/11 http://www.judis.nic.in W.P. 15491 of 2010 cannot be over-estimated. Private lawns or public parks are not a luxury, as they were considered in the past. A public park is a gift of modern civilisation, and is a significant factor for the improvement of the quality of life. Open space for a public parks is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology.
14. We are therefore, of the firm opinion, that the statutes in force in India and abroad reserving open spaces for parks and play grounds are the legislative attempt to eliminate the misery of disreputably housing condition caused by urbanisation. Crowded urban areas tend to spread disease, crime and immorality. Reservation of one space for parks and playground is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-
effects of urbanisation and the Apex Court decisions referred supra, fully support the view that the area set 8/11 http://www.judis.nic.in W.P. 15491 of 2010 apart for park as per the approved layout plan, cannot be used or transferred for any other purpose.”
8. The Division Bench has further clearly held that the open space for the construction of public park is preserved and earmarked in the plan for development of planned town, the authorities cannot ignore or neglect to develop that open space into a public park within a reasonable time and for converting the said park into some other civil amenities or for some other purpose cannot be permitted. Hence, the construction of pumping station in the place earmarked for the general public cannot be permitted. Therefore, I am inclined to set aside the impugned order dated 07.09.2009 passed by the 2nd respondent. However, a liberty is granted to the authority to construct the sewerage pumping station in the alternative site.
9. With the above observation, the present Writ Petition stands allowed. No costs. Consequently, the connected Miscellaneous Petition stands closed.
19.08.2019 Index:Yes/No Internet : Yes/No Speaking Order/Non Speaking Order rpp 9/11 http://www.judis.nic.in W.P. 15491 of 2010 To
1. The Managing Director, Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chintadripet, Chennai-600 002.
2. The President, Okkiam Thoraippakkam 1st Gr.
Panchayat Union, Thoraippakkam, Chennai-600 097.
3. The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Buildings, Egmore, Chennai-600 008.
10/11 http://www.judis.nic.in W.P. 15491 of 2010 M.DHANDAPANI,J.
rpp W.P. 15491 of 2010 and M.P. 2 of 2010 19.08.2019 11/11 http://www.judis.nic.in