Madras High Court
Mrs.Merene Alex vs The Government Of Tamil Nadu on 13 September, 2019
Author: G.Jayachandran
Bench: G.Jayachandran
W.P.No.10464 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 09.09.2019
PRONOUNCED ON : 13.09.2019
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Writ Petition No.10464 of 2018 and
W.M.P.No.12414 of 2018
Mrs.Merene Alex ... Petitioner
Vs
1.The Government of Tamil Nadu,
Represented by its Secretary to Government,
Housing and Urban Development Department,
Secretariat,
Fort St. Goerge,
Chennai – 600 059.
2.The Chennai Metropolitan Development
Authority,
Represented by its Member Secretary,
Thalamuthu Natarajan Buildings,
1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
3.The Corporation of Greater Chennai,
Represented by its Commissioner,
Ripon Buildings, Chennai.
4.The Tamil Nadu Housing Board,
Represented by its Managing Direction,
Anna Salai, Nandanam,
Chennai.
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W.P.No.10464 of 2018
5.The Chennai Metropolitan Water Supply and
Sewerage Board,
Represented by its Superintending Engineer (VI (P),
1, Pumping Station Road,
Chintadripet,
Chennai – 600 002.
6.The Commissioner,
Ambattur Municipality,
Chennai Tirutanni Road,
Chennai. ... Respondents
Prayer :- This Writ Petition is filed under Article 226 of the Constitution of
India for a writ of Mandamus forbearing the respondents from altering,
alienating or dealing with, in any other manner, the open space reservation
(OSR) earmarked as OSR II in S.No.231 part and 233 part of Padi Village,
Ambattur Taluk as provided for in the approval layout plan dated 28.10.1988
of the 2nd respondent.
For Petitioner :Mr.Sharath Chandran
For 1st Respondent :Mr.N.Inbanathan,
Additional Government Pleader
For Respondents 2 & 5 :Mr.N.Ramesh, Standing Counsel
For Respondents 3 & 6 :Mr.T.C.Gopalakrishnan, Standing Counsel
For 4th Respondent :Mr.R.Bharath Kumar
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W.P.No.10464 of 2018
ORDER
The petitioner herein is the owner of an apartment bearing flat No.1 Type 'A' Block No.169 in Golden Jubilee Apartments, Anna Nagar West, Chennai. She purchased the said property vide sale deed dated 10.01.2007. According to the petitioner, in the parent sale deed executed by the Tamil Nadu Housing Board/vendor (hereinafter referred to as “the TNHB”) in favour of her as well as in the deed executed by her vendor, it is clearly stated that the land situated at the North of Golden Jubilee Apartments is reserved for Open Space Reservation (OSR). In the approved lay out of the planning permission also, the said space is reserved as OSR and mentioned as OSR II in S.Nos.231 part and 233 part of Padi Village, Ambattur Taluk.
2.The allegation and grievance of the petitioner is that, now, the respondents want to alienate the said land which is earmarked as OSR. The fifth respondent, the Chennai Metropolitan Water Supply and Sewerage Board (hereinafter referred to as “the CMWSSB”) is making insidious attempt to construct a sewerage tank in the said OSR land. Earlier, when such attempt was made in the year 2011, some of the flat owners including the petitioner filed writ petition in W.P.No.6240 of 2011 and the same was disposed of by this Court on 09.04.2011 with a direction that the objections 3/16 http://www.judis.nic.in W.P.No.10464 of 2018 of the flat owners to be heard and considered objectively by the respondents therein. Till the year 2018, there was no action taken by the respondents. The flat owners were under the assumption that the fifth respondent has dropped the idea of building sewerage tank in the land reserved for OSR.
3.In the mean while, an attempt was made by the fourth respondent to alienate the OSR land and to covert it into a shopping complex. This was challenged by the petitioner by way of writ petition in W.P.No.8688 of 2014. On 25.03.2014, the Court has granted interim direction forbearing the respondents from converting the OSR land into a commercial area and the said writ petition is still pending. While so, the fifth respondent has renewed its attempt to illegally usurp the OSR land for the construction of sewerage scheme.
4.The flat owners gave representation to the fifth respondent pointing out that, as per the Chennai Metropolitan Development Authority (CMDA) , as well as judgment of the Courts, the OSR land cannot be converted for any other purpose. In response to the said representation, the fifth respondent has issued a reply dated 03.04.2018 stating that there is no stay order in W.P.No.6240 of 2011. If there is any objection regarding the construction of 4/16 http://www.judis.nic.in W.P.No.10464 of 2018 sewerage pumping station, the petitioner and others have to forward their representation on or before 10.04.2018.
5.According to the petitioner, Regulation 20 of the Development Regulation (DR), framed by the CMDA under the second master plan, use of OSR land for the construction of sewerage pumping station is prohibited. Therefore, any proposal by the fifth respondent to construct sewerage pumping plant in the OSR land is illegal and contrary to the Ddevelopment Regulations.
6.After coming to know that the OSR land has been gifted by TNHB to the sixth respondent, the petitioner obtained a copy of the gift deed dated 02.08.2004. In the said deed, the said OSR was transferred by the fourth respondent to the sixth respondent and in the said deed, it was specifically mentioned that the said space has to be used by the public for the purpose of roads and street lights. The local body shall have no right to change the usage of the land which has been earmarked for the beneficial enjoyment of the general public.
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7.The land specified as open space has to be protected by the local body as custodian of it. Therefore, by way of this writ petition, the petitioner seeks for mandamus, forbearing the respondents from altering or alienating or dealing with in any manner the open space reserved earmarked as OSR II in S.Nos.231 part and 233 part of Padi Village, Ambattur Taluk.
8.The respondents have filed their respective counters. According to the Corporation of Chennai, at the time when TNHB promoted the lay out at Anna Nagar West, Chennai, the area was within the limits of Ambattur, Municipality. Later, it merged with Greater Chennai vide G.O.Ms.No.97 MA & WS Department dated 19.07.2011. The TNHB has demarcated the site area of 138.66 square meter in the OSR – II in S.Nos.231 part and 233 part for utilisation of pump room and sewerage pumping station with pumping machineries.
9.The said land was given to the Commissioner of Ambattur Municipality through a registered gift deed dated 22.08.2004. Subsequent to that, the Commissioner Ambattur Municipality handed over the said land to the Executive Engineer, CMWSSB on 30.11.2009, for comprehensive underground drainage scheme.
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10.Earlier in W.P.No.6240 of 2011, This Court directed the respondents to afford opportunity to the petitioner and others to put forth their objection regarding the construction of pumping station. Accordingly, the Commissioner, Ambattur Municipality after affording opportunity intimated the writ petitioners in W.P.No.6240 of 2011 on 31.05.2011 as below:-
“One sewage pumping station has been proposed and approved in the DPR for improvement of existing system in Golden Jublee flats. At present, the existing system is functioning and it is maintained by Ambattur Municipality without disposal arrangements. The existing pumping station site was handed over by Tamil Nadu Housing Board in Open Space Reservation site earmarked only for usage of Under Ground Sewerage Scheme. On the above circumstances it is not feasible to relocate the site in the Tamil Nadu Houising Board owned commercial site. The Ambattur Municipality is therefore, not in a position to comply with their request.”
11.Later, Ambattur Municipality handed over the land to Chennai 7/16 http://www.judis.nic.in W.P.No.10464 of 2018 Corporation. Now, the CMWSSB had commenced its construction on the existing sewerage collection well by providing 450 mm thick reinforced cement concrete wall structure to size of 4 meters dia (inner) and 8.6 meter depth below natural ground level and 1 meter above the ground level.
12.In the counter filed filed by the fifth respondent/CMWSSB, it is stated that the work of providing sewerage facilities to Ambattur Municipality was carried out by the CMWSSB. The site in dispute was allotted to the fifth respondent by the erstwhile Ambattur Municipality on 30.11.2009, for the construction of sewerage pumping station in Golden Jubilee Apartments, Anna Nagar West, Chennai. In this site, there is an existing sewerage pumping station maintained by erstwhile Ambattur Municipality. Exclusively collecting the sewerage from golden jubilee flats and pumping into the nearby canal leading to Cooum river. After construction of new sewerage station in the site, the sewerage collected will be pumping to the Mogapair HT and then the sewerage is pumped to Koyambedu STP for sewage treatment.
13.In the year 2011, when the CMWSSB attempted to construct pumping station, objection was made by the residents of Golden Jubilee 8/16 http://www.judis.nic.in W.P.No.10464 of 2018 Flats, leading to filing of the writ petition in W.P.No.6240 of 2011. The said writ petition was disposed of on 09.04.2011 with direction to Ambattur Municipality (fourth respondent) to consider the petitioner's representation dated 02.03.2011 on merits and in accordance with law. Date for hearing was also fixed as 18.04.2011 by the Court in its order.
14.As per the order of the Hon'ble High Court, the petitioner and others were heard on 18.04.2011. The Commissioner, Ambattur Municipality participated in an enquiry proceedings and explained the petitioner in detail about the site selection for construction of sewerage pumping station and the same is not a OSR since, there is already a sewerage pumping station. Further, it is intended to be improved by constructing a pumping station, a detailed letter was also sent to the petitioner on 31.05.2011.
15.The re-location of the pumping site is not feasible and the area likely to be occupied for establishment of the pumping station and motor room is very minimal. Further, the OSR and parks around the Golden Jubilee Flats are not to be disturbed.
16.It is submitted by the fifth respondent that the representation of 9/16 http://www.judis.nic.in W.P.No.10464 of 2018 the petitioner and others dated 09.04.2011 was disposed of on 31.05.2011 itself in accordance with the direction of this Court passed in W.P.No.6240 of 2011. The petitioner, suppressing that fact, has filed the present writ petition as if, the area earmarked for OSR is illegally been used for the purpose against the interest of the Golden Jubilee flats residents.
17.The TNHB has allotted the site where the pumping station is under construction to the Ambattur Municipality as early as on 30.11.2009. After merger of Ambattur Municipality with Greater Chennai, the Corporation of Chennai has handed over the site to the CMWSSB. The work for pumping station is commenced in the year 2011 itself but due to delay execution, there was change in the Contractor. After waiting for the fresh tender, the balance work has been started and it is almost nearing completion.
18.The learned Standing Counsel appearing for the respondents 2 and 5 would submit that the site of pumping station even if it falls within the area marked as OSR, taking note of the advantage of establishing pumping station being for the welfare of the residents and the small extend to be utilised for the said purpose, from out of large extend of OSR there should not be any interference in the project.
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19.The field map and blue print of the lay out undoubtedly, indicate that the area marked for construction of pumping station falls within the area shown as OSR-II, in the approved lay out. The regulation as well as the pronouncement of this Court as well as Hon'ble Supreme Court, time and again prohibits conversion of OSR land. Courts have reprimanded the attempt of converting OSR land for any other purpose including public purpose. However, peculiarly in this case, long back, conversion has happened. The site in dispute been in use as pump room and sewerage pumping station with pumping machinery. The earliest records is the sketch of the site handing and taking over of the OSR II with pump room and pumping station and the gift deed duly registered, executed by the TNHB in favour of the Ambattur Municipality dated 02.08.2004.
20.The sketch annexed along with the deed indicates that, within the area earmarked for OSR – II, two small portion, the pump room and sewerage pumping station has been located and identified. Totally 5 OSR area been shown in the approved lay out of the site where the pumping station under construction falls in OSR- II.
21.It is contended by the learned counsel for the petitioner that even 11/16 http://www.judis.nic.in W.P.No.10464 of 2018 in the gift deed under the schedule of property, while describing OSR-II, there is no reference about any pumping room or pumping station. It is correct to state that, while describing the property in the gift deed, there is no reference about the pumping room or pumping station but, in the sketch annexed to the deed which is part of the gift deed, the sketch prepared by TNHB, surveyor on 03.03.2004 discloses the existence of pump room and sketch of pumping station. Therefore, there is no doubt in the mind of this Court that, by August 2004, the TNHB has handed over OSR – II of the Golden Jubilee Flats along with the pumping room and sewerage pumping station.
22.This area after merger of Ambattur Municipality with the Greater Chennai got transferred to CMWSSB. In view of explosion of population and better management of sewerage, the fifth respondent has decided to put up moderinised pumping station and had started the constructions. It is reported that about 90% of the work had already been completed. Judgments in support and against of utilising the OSR for other purpose been cited by the respective counsels. The bottom line of the cases cited is that, when there is gross violation of planning permission or total abuse of administrative power in converting OSR space for commercial purpose, the 12/16 http://www.judis.nic.in W.P.No.10464 of 2018 Courts have come down heavily against such action. At the same time, when comparatively smaller extent from out of OSR is carved out for some public purpose to meet the need of that locality, the Courts have allowed such conversions. In this case, the area marked in the sketch for pump room and pumping station as well as the photographs shown by the learned counsel for the petitioner would indicate that, out of total five different areas earmarked for OSR, in OSR - II, a small portion of the land has been utilisted for establishing the pumping station.
23.From the counter of the fifth respondent, this Court finds that the implementation of the sewerage scheme will lead to prevention of illegal connections letting the sewerage into Cooum river directly. The scheme is to improve the standard of living of the citizens around the said area.
24.The learned counsel for the petitioner submitted that, the State has breached the public trust by converting OSR land into sewerage plant area. From the sequence of event narrated above, the said conversion has been done prior to the year 2004 and the present attempt made by the fifth respondent is to improve the existing pumping station. Earlier attempt to convert a piece of OSR into commercial building has been prevented by the 13/16 http://www.judis.nic.in W.P.No.10464 of 2018 petitioner association through writ petition filed earlier. Now, portion of the land is utilised for the welfare of the public. Though the regulations of CMDA prohibits even such conversions, since, the conversion has been made prior to the merger of Ambattur Municipality with Greater Chennai and the site is in utilization as pumping station for a long time, interference at this stage will be against the interest of public at large.
25.The fifth respondent states that they have not offered alternate place to locate the pumping station by the Corporation of Greater Chennai and the space occupied for the said construction is very optimal. Hence, this Court is not inclined to interfere with the project of the fifth respondent. To prevent any further conversion of the OSR land, the respondents are prohibited to utilize the remaining OSR for any other purpose. Except the construction which is now been underway, the fifth respondent shall not put up any other construction in the OSR II area as found in the planning approval.
26.With the above observation, this writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed. 14/16 http://www.judis.nic.in W.P.No.10464 of 2018 13.09.2019 jbm Index: Yes/No Speaking order/non speaking order To
1.The Government of Tamil Nadu, Represented by its Secretary to Government, Housing and Urban Development Department, Secretariat, Fort St. Goerge, Chennai – 600 059.
2.The Chennai Metropolitan Development Authority, Represented by its Member Secretary, Thalamuthu Natarajan Buildings, 1, Gandhi Irwin Road, Egmore, Chennai – 600 008.
3.The Corporation of Greater Chennai, Represented by its Commissioner, Ripon Buildings, Chennai.
4.The Tamil Nadu Housing Board, Represented by its Managing Direction, Anna Salai, Nandanam, Chennai.
5.The Chennai Metropolitan Water Supply and Sewerage Board, Represented by its Superintending Engineer (VI (P), 1, Pumping Station Road, Chintadripet, Chennai – 600 002.
6.The Commissioner, Ambattur Municipality, 15/16 http://www.judis.nic.in W.P.No.10464 of 2018 Chennai Tirutanni Road, Chennai.
G.JAYACHANDRAN.J., jbm Pre delivery Order made in W.P.No.10464 of 2018 13.09.2019 16/16 http://www.judis.nic.in