Madras High Court
V.Sandal Muthuraj vs The District Collector on 28 September, 2018
Bench: T.Raja, Krishnan Ramasamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 29.08.2018
Delivered on: 28.09.2018
Dated: 28.09.2018
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
And
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.P(MD)No.6386 of 2009
and
M.P.(MD)Nos.1 and 2 of 2009
V.Sandal Muthuraj ... Petitioner
vs.
1.The District Collector,
Tirunelveli District,
Tirunelveli.
2.The Chairman,
Koodangulam Project Local Committee
and the Project Engineer (Civil),
Nuclear Power Corporation,
Project 10, 11, Jawahar Street,
Ramavarmapuram, Nagercoil,
Kanyakumari District.
3.Rev.Father Thatheyus Rajan,
Correspondent and Incharge,
St.Anne's Higher Secondary School,
Koodankulam,
Tirunelveli District. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India,
praying for the issuance of a writ of Certiorarified Mandamus calling for
the entire records pertaining to the order passed by the second respondent
vide his proceedings in No.NPCIL/KKNPP/CV-1/LC/2009/20, dated 08.01.2009 as
well as the order passed by the first respondent vide his proceeding in
m9/2148/07, signed on 02.02.2009 and quash the same and consequently direct
the first and second respondents to demolish the first floor and annexed
construction thereof put up by the third respondent at St.Anne's Higher
Secondary School, Koodankulam, Tirunelveli District.
!For Petitioner : Mr.R.Anand
^For R1 : Mr.V.R.Shanmuganathan
Special Government Pleader
For R2 : Mr.Fr.Xavier Arulraj
For R3 : Mr.V. John Kennedy
* * *
:ORDER
(Order of the Court was made by KRISHNAN RAMASAMY, J.) This writ petition has been filed by the petitioner aggrieved by the impugned order passed by the second respondent dated 08.01.2009 as well as the order passed by the first respondent vide his proceeding, dated 02.02.2009 in m9/2148/07 and quash the same and consequently direct the first and second respondents to demolish the first floor and annexed construction thereof put up by the third respondent at St.Anne's Higher Secondary School, Koodankulam, Tirunelveli District. This challenge is on the ground that the permission granted to the third respondent school for construction of first floor is situated within 5 kms radius of the Koodankulam Nuclear Power plant and such a grant of permission is in violation of G.O.Ms.No.789, Public Works Department, dated 11.05.1988, which was subsequently modified vide G.O.Ms.No.829 Public Works Department, dated 29.04.1991.
2.The case of the petitioner is that he was elected as District Councilor at Koodankulam Village in the local body election. The Ministry of Energy Department of Atomic Energy, in the year 1988, has decided to form a nuclear power station for the purpose of generating the electricity power, for that purpose a separate committee called Koodankulam Project Local Committee headed by the third respondent has been formed. Thereafter, the said Committee made it clear that with regard to any person rising constructions and allied things thereof expected to be made within the radius of 5 kms from the site of Automic Energy, should obtain necessary permission from the third respondent Committee apart from the permission which used to be obtained from the first respondent. In order to emphasis the said condition, a detailed Government Order has been gazetted by the Public Works Department vide G.O.Ms.No.789, P.W.D., dated 11.05.1998, which was subsequently modified vide G.O.Ms.No.829, P.W.D., dated 29.04.1991 stating that without obtaining any prior permission, no such construction can be made.
3.The further case of the petitioner is that in the year 1989, as the third respondent, on his own accord has started to put up construction of a separate building in their school without following the said Government Order, dated 11.05.1988, one Mr.A.Kumarasamy, filed W.P.No.14708 of 1990 before the Principal Bench of this Court, praying to demolish the newly constructed area by the third respondent on the ground that the third respondent has constructed the school within a radius of 5 km, from the place which is earmarked for Nuclear Power Project. This Court by order, dated 29.03.1990, had categorically directed the construction to be demolished at the instance of the first respondent. Since the said order of this Court was not complied with, the said A.Kumarasamy, filed Contempt Petition No.236 of 1990 seeking compliance of the order dated 29.03.1990. In the meanwhile, the third respondent also filed W.P.No.23907 of 1990 praying to recognize the construction, which was put up in his school. This Court clubbing all those proceedings into one has passed a detailed order on 08.10.1990 as follows:-
?2.The petitioner in the writ petition filed contempt application No.236 of 1990 as respondent 1, 3 and 4 in the writ petition did not carry out the direction given by this Court. While the matter was pending, respondents 1, 3 and 4 in the writ petition filed W.M.P.No.23907 of 1990 for permission to exempt the school building from G.O.Ms.No.789, Public Works Department, dated 11.05.1988. When these matters were posted before me on 19.09.1990. I passed an order directing the correspondent of the school to file an affidavit of undertaking in the court on or before 03.10.1990 undertaking to shift the school to another building in another locality on or before 31.05.1991 and to demolish the building in question at its own costs.
The affidavit of undertaking had been filed in court and in the last sentence, the correspondent of the school has stated as follows:-
?I on behalf of third respondent institution undertake to demolish the newly constructed building of St.Annes Higher Secondary School, Kudungulam in Tirunelveli Kattabomman district, on or before 31.05.1991.?
3.In view of the fact that the fifth respondent is an educational institution and the fact that the students will have to suffer if the school building is demolished in the middle of the academic year. I think it proper to grant time till 31.05.1991 to the fifth respondent to demolish the building and its own costs. In view of the affidavit of undertaking filed before me it is clear that the fifth respondent will itself demolish the building without driving the Government or any other authority to take steps to demolish the same.?
4. Learned counsel for the petitioner further stated that in view of the order passed by this Court in Contempt Petition No.236 of 1990, the third respondent's construction has been demolished in toto. He further stated that during the pendency of the Contempt Petition, a modification came into effect vide G.O.Ms.No.829, Puboic Works Department, dated 29.04.1991. When this being so, during the month of March, 2008, again the third respondent started construction to put up first floor at Northern side of the school. The petitioner being the Councilor questioned the attitude of the third respondent and requested them to stop the construction work for construction of the first floor. Since the third respondent failed to stop the construction work, the petitioner herein filed W.P.(MD)No.10963 of 2008, seeking direction to the fifth respondent to restrain from making further construction at the first floor of their school and consequently, direct the respondents therein to demolish the construction put by the fifth respondent school. This Court vide order, dated 01.12.2008, directed the third respondent in this regard, as a result of which, an enquiry was conducted on the third respondent and finally on 08.01.2009 vide proceedings No.NPCIL/KKNPP/CV-1/LC/2009/S/20 has recognized the construction put up by the third respondent and the impugned order was passed by the first respondent on 02.02.2009. Challenging the said order passed by the first respondent dated 02.02.2009 and the second respondent dated 08.01.2009, the petitioner, has approached this Court for the relief stated supra.
5.The first respondent has filed his counter affidavit stating that the subject matter of construction of first floor in the existing school building viz., ?St.Anne's Higher Secondary School, Koodankulam? had been discussed in the meeting held on 28.11.2008 of ?Koodankulam Project Local Committee?
headed by the Chairman ?Project Engineer (Civil) Koodankulam Project? Koodankulam Post, Radhapuram Taluk, Tirunelveli District (Second respondent herein) and thereafter, approval was granted subject to the condition that the approval of the Deputy Director of Town and Country Planning Tirunelveli should be obtained. Then proposal for the approval of the Collector, Tirunelveli (First respondent herein) had been sent by the Panchayat Union Commissioner, Radhapuram and Secretary of the said ?Koodankulam Project Local Committee?. The Collector, Tirunelveli returned the proposal vide reference A9/1248/08, dated 23.12.2008 stating that the proposal had not been accompanied with the approval of the Deputy Director of Town and Country Planning, Tirunelveli. In the mean time, the petitioner had filed W.P.No.10963/2008 before the Principal Bench of this Court for a writ to direct the school to restrain from making further construction at the first floor of the school and also to demolish the construction already put up. This Court by order, dated 1.12.2008 had disposed the said Writ petition with directions to the fourth respondent Viz. The Chairman, Koodankulam Project Local Committee 'to consider the representation of the petitioner, dated 07.10.2008, after giving due opportunity of being heard to the petitioner as well as fifth respondent viz., Rev. Father Thayeyus Rajan, Correspondent of the School and others, who are interested and dispose of it within a period of one month from the date of receipt of a copy of the order in the light of the G.O.Ms.No.829'.
6.The first respondent has further stated in his counter that according to the directions of this Court, a meeting had been held on 05.01.2009 at Panchayat Union Office, Koodankulam. The petitioner, the Panchayat Union Commissioner, Radhapuram and President Koodankulam Nuclear Power Project Committee, attended the meeting. The petitioner had agreed to act according to the directions of this Court. On 06.01.2009 another meeting had been held at Panchayat Union Office, Radhapuram. The Correspondent of the said School, the President of Parent ? Teachers Association of the said School, the Panchayat Union Commissioner, Radhapuram and the President Koodankulam Nuclear Power Project Committee, attended the meeting. Based on the decision taken in the above meetings, further action to approve the said construction had been taken. The Deputy Director of Town and Country Planning, Tirunelveli had been addressed to accord concurrence for the said construction vide reference A4/3213/08 dated 09.01.2009. Proposal for getting the approval of the Collector, Tirunelveli had also been sent vide Ref.A4/3213/08 dated 27.01.2009. The Deputy Director of Town and Country Planning Tirunelveli in his letter No.152/09 TNVR3/ dated 30.01.2009 had given concurrence for the said construction. After examining the proposal of the Panchayat Union Commissioner, Radhapuram and concurrence of the Deputy Director of Town and Country Planning, Tirunelveli and all other factors, the Collector, Tirunelveli in his proceedings A9/2148/07 dated 02.02.2009 had accorded approval for the said construction as per G.O.Ms.No.829, Public Works Department, dated 29.04.1991.
7.The first respondent has also stated in his counter affidavit that the approval for the construction of First floor in the existing School building had been given after observing all the rules and regulations as well as the directions of this High Court, dated 01.12.2008, hence, there is no violation of any procedure. The petitioner had attended the meeting on 05.01.2009. The first respondent, Collector, Tirunelveli, had given approval for the said construction vide his proceedings in A9/2148/2007, dated 02.02.2009, after observing all the rules and regulations, and after examining the minutes of ?Koodankulam Project Committee? constituted in G.O.Ms.No.829, P.W.D., dated 29.04.1991 and objections raised in this regard. The Government in their order dated 29.04.1991 have constituted a Committee known as ?Koodankulam Project Local Committee?. Therefore, the first respondent stated that there is no violation in the impugned order passed by the first respondent in granting the approval for the construction of the first floor in the third respondent's school. While passing the order, the first respondent has strictly followed all the Rules and Regulations and also considered the recommendation of the Koodankulam Project Level Committee. Therefore, there is no illegality in granting the approval.
8.The third respondent has filed counter affidavit stating that the petitioner school is a Higher Secondary School, having student strength of 850 and staff strength of 27. The village of Koodankulam has two Higher Secondary Schools and one High School. The exam centre for 10th and 12th standard Public Examination is situated at Radhapuram, 12 Km away from Koodankulam village. The students of this village had to travel around 12 Km to write their Public Examinations. This was causing a lot of difficulties for the students especially for the girl students, hence, the parents of the students had, on several occasions, requested educational authorities to provide a public exam centre for 10th and 12th Public Examinations. Since their school is having the maximum number of students every year to appear for the Public Examinations, the other two schools and the parents wanted their school to be taken an Examination Centre for both 10th and 12th Public Examinations. The other two schools also gave 'No objection Certificates' to their school to be decided as Examination Centre for Public Examinations.
9.The third respondent has also stated that Koodankulam Project Local Committee visited their school on 28.11.2008 and recommended the application of their school for approval of the building plan to the District Collector, the 1st respondent herein. In the mean time, since the infrastructure has to be completed in time for conducting the 2009 Public Examination for 10th and 12th standard students, they started construction of the first floor with 4 rooms, as directed by the educational authorities. Apart from that, the third respondent has stated that the petitioner filed W.P.No.10963/2008 challenging the said construction of additional rooms in their school and the same was disposed on 01.12.2008 with a direction to 'the fourth respondent viz., the Chairman Koodankulam Project Local Committee and the Project Engineer (Civil), Nuclear Power Corporation Project, Ramavarmapuram, Nagercoil, Kanyakumari District to consider the representation of the petitioner dated 07.10.2008. Subsequent to the said order of Court dated 01.12.2008, the Chairman Koodankulam Project Local Committee in his Action Taken Report dated 08.01.2009 complied with the directions of this Court. The said Action Taken Report in para 6.0 states as follows:
? As per the direction stated in Annexure-1 of the Honourable Madurai Branch of Madras High Court, both the views of Mr.V.Sandal Muthuraj and Fr.Thadheyus Rajan have been heard and recorded. In the light of G.O.829 dated 29.04.91 of Government of Tamil Nadu, Kudankulam Project Local Committee has already communicated its 'No Objection' for the subject construction. The application for construction has also been filed by the management of St.Anne's Higher Secondary School which has been concurred by President of Kudankulam Panchayat Union. The present status of approval is that the approval from the District Administration is awaited. It is also understood that the proposed construction is an expansion of the existing school with the good intention of getting an examination center for 10th and 12th students of Kudankulam village. The 'No objection' communicated for the construction is hereby reiterated in line with para No.2(iii) of G.O.Ms.No.829 dated 29.04.1991 and it is forwarded for appropriate action of District Collector. ?
10.That apart, the third respondent has stated that subsequent to the Action Taken Report reiterating 'No Objection' for the construction of additional rooms in their school, the Commissioner of Radhapuram Panchayat Union, vide his proceedings, dated 09.01.2009 in A4/3213/2002 stated that permission is granted by the Local Committee and that the applicants are directed to approach the Department of Town and Country Planning to receive No Objection Certificate. He also requested the Deputy Director of Town and Country Planning to recommend to the Collector to accord approval to the said constructions. Subsequently they complied with all the requirements and also paid the necessary fee of Rs.89,250 (Eighty Nine thousand two hundred and fifty only). Thereafter the Collector of Tirunelveli, vide his proceedings dated 02.02.2009 in A9/2148/07, accorded approval to the said construction of additional rooms in their school.
11.The first respondent, while granting the approval, has considered the G.O.Ms.No.829, Public Works Department, dated 29.04.1991, which reads as follows:-
?i.The proposal for establishment of a Nuclear Power Station at Kudankulam, Radhapuram Taluk, Tirunelveli Kattabomman District, is under active consideration of the Department of Atomic Energy and in this connection the following pre-requisite conditions are to be fulfilled:-
1.The use of land within the exclusion zone of 2.0 k.m. Radius around the plant site for any purpose other than establishment of a Nuclear Power Station and its facilities is prohibited.
2.In an area between 2 to 5 km radius around the plant site, called the sterilisation zone:
i.No industrial development be allowed to take place.
ii.The transfer of agricultural lands to non-agricultural purposes should not be permitted.
iii.The Collector of Tirunelveli ? Kattabomman District while deciding on requests the putting to use any agricultural land to non-agricultural purpose or for execution of re-erection of building, carrying out any Engineering mining or other operations of any land shall seek the concurrence of the ?Kudankulam Project Local Committee? as constituted under para 2 below. The recommendations of the local committee will be forwarded to the Collector who will invite the representations and dispose them off after giving an opportunity of being heard to the affected persons. In case the Collector comes to the conclusion that the recommendations of the Committee need to be revised to as amended, he shall forward the same with his comments and the representation received in this behalf to the State Government who shall decide the issue in consultation with Detriment of Atomic Energy.?
12.As per G.O.Ms.No.289, Public Works Department, dated 29.04.1991, if any construction activities are to be carried out, it is just and necessary to obtain concurrence from the Koodakulam Project Local Committee. In the present case, the third respondent school is situated within 5 kms radius of the project area, but beyond 2 kms of the Koodankular Nuclear Plant and therefore, in terms of the above Government Order, there is no total ban to put up construction within 2 to 5 kms radius. More over, Koodankulam Project Local Committee, the second respondent herein, and Deputy Director of Town and Country Planning of Tirunelveli District recommended for construction of the building in the first floor of the third respondent school and based on the said recommendation only, the first respondent granted approval on 02.02.2009. Hence, the first respondent has strictly followed all the Rules and Regulations and the order passed by this Court in W.P.(MD)No.10963 of 2008. Since necessary approval from the committee has been obtained by the third respondent for construction of the first floor in their school, the prayer made by the petitioner cannot be countenanced by this Court.
13.In view of the above reasons, we do not find any illegality in the impugned orders passed by the first and second respondents and hence, no interference is called for. Accordingly, the writ petition stands dismissed.
No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The District Collector, Tirunelveli District, Tirunelveli.
2.The Chairman, Koodangulam Project Local Committee and the Project Engineer (Civil), Nuclear Power Corporation, Project 10, 11, Jawahar Street, Ramavarmapuram, Nagercoil, Kanyakumari District.
3.Rev.Father Thatheyus Rajan, Correspondent and Incharge, St.Anne's Higher Secondary School, Koodankulam, Tirunelveli District.
.