Madras High Court
South Rajakilpakkam Residents Welfare ... vs State Of Tamil Nadu And Ors. on 5 October, 1998
Equivalent citations: AIR 1999 MADRAS 91
ORDER S.S. Subramani, J.
1. In all these writ petitions, the petitioners seek issuance of writ of Certiorarified Mandamus or any other appropriate writ direction or order calling for the records in Permit No. B/025571 /420/A to 1/97, dated 14-10-97 issued by the Chennai Metropolitan Development Authority and quash it and also direct the respondents 7 and 8 to provide protected water supply and sewerage connection to the members of the petitioners association in Rajakilpakkam and in Madambakkam and Sembakkam town panchayat within Madras Metropolitan Area and pass such further orders.
2. M/s. Hansa Estates Private Limited wanted to put up nearly 320 flats in an area of 4.3. acres in Madambakkam main road, for which the second respondent has issued planning permission. According to the petitioner, the area where the proposed flats are to be constructed, there is insufficiency of water and there is also no proper drainage system.
3. It is said that the village bound in between Madambakkam Village where lay out is situated and Sembakkam, would appear to be at the summit of a subterranean elevation of aquifers which by natural gravitatjonal action, flows away from the area faster than on level formation. This natural handicap is exacerbated by the weathered micaceous gneiss up to a depth of 6 to 7 meters below the top soil, which is then followed by jointed fissured or fresh formation. In most of the wells in the area, fresh rock is normally the Chornokite formation, which have to be blasted for further drilling to hit water.
4. It is further said that the wells in the area are between 1 and 1.5 meters in diameter and 7 to 8 meters in depth, which at the height of summer, would hold about a foot of water which would be hardly sufficient for the inhabitants. The grievance of the petitioner is that if M/s Hansa Estates is allowed to build the complex, the meagre water sources will be completely drained and even the existing water which they are getting will be taken away by them. It is said M/s. Hansa Gardens have been permitted to dug huge sizes of wells about 30 meter diameter, the same will affect the residents of the area and the ground water level will also go down. If all the 320 flats are coming up, there must be proper arrangement for disposal of sewerage water which is not arranged and available. There is also no protected water supply and ingenial sources are only available. It is said that the members of the association have got fundamental right to live and the local authorities are also bound to provide them with basic amenities of water and proper drainage. Without caring for the existing inhabitants respondents have granted permission to Hansa Estates and that will affect their livelihood and existence. Second respondent has not taken into consideration the relevant provisions of the statute nor it consulted respondents 7 and 8. Without consulting respondents 7 and 8, no planning permit could be granted and that is statutory obligation. These facts were brought to the notice of the second respondents by various letters and reminders and in fact for setting this matter, there were so many meetings between the members of the public and the builder along with the authorities which did not give any positive reply. It is under these circumstances, the petitioners have come to this Court to quash the planning permit issued by t he respondent and also to compel the second respondent to provide protected water supply and proper drainage facility.
5. M/s Hansa Estate Private Limited has filed detailed counter-affidavit. According to it, the construction put by it is not going to affect any of the inhabitants nor the existing water supply available is not going to be diminished. It is also said regarding sewerage system, necessary protective measures are being taken. It is also said that regarding ground water, opinion of reputed Hydrogeologist were taken and they were advised that 5 large size wells of 55' depth each can be dug and the water needs of the occupants of the complex would be met without causing any deleterious effect on the quantity of water consumable by the entire neighbourhood including the petitioners.
6. It is said when the project was commenced, the area was thinly populated and new houses are coming up. C.M.D.A. has categorised the vast stretch of land on the North Eastern side of the Madambakkam High Road as agricultural zone. The possibility of depletion of underground water level was quite remote because of vast open area with two lakhs in the vicinity. It is also said that the company has installed sewerage treatment Plant to recycle the sewerage water and derive water in pure form for usage in gardening and other purposes. It is said that the apprehension of the petitioner is without any basis. In fact, if the petitioners' case is accepted, the entire area will be flooded With polluted water.
7. C.M.D.A. has approved the plans which are strictly according to rules formulated by C.M.D.A. after 18 months from the date of submission and after several revisions as stipulated by CMDA. There is also no possibility of Sewerage water going into contact with the well water. It is also said that more than 2000 flats have been constructed for IAF Staff and more than 3000 children are studying in the Kendriya Vidyalaya. In spite of such huge construction and occupation of IAF Quarters, it has not caused any damage or depletion of water at any point of time. Under the above circumstances, the grievance of the petitioner is only on apprehension which has no basis, and therefore the writ petition is liable to be dismissed.
8. The Managing Director of Tamil Nadu Water Supply and Drainage Board, who is the 8th respondent has also filed a counter-affidavit which only contains about the functions of the Board under the Water Supply and Drainage Board Act, 1970. it is also stated that a proposal for providing water supply to Sembakkam RTP has been administratively approved and the same has been subsequently revised. The scheme has been taken up for execution and expected to be completed within December 1999. It is also stated that water supply to Madambakkam Urban Town Panchayat is under investigation. It prayed for dismissal of the writ petition.
9. I heard all the counsel in detail. As rightly contended by the counsel for the 9th respondent, M/s Hansa Estate, I feel that the petitions are filed only on surmises and Water supply and drainage system will not be affected if construction is allowed to come up.
10. All these petitioners are associations. The construction is going on the basis of lay out approved by the local authorities. The constructions are progressing and it is said about 100 buildings are coming up in the area. It is at this juncture, the 9th respondent wanted to put up nearly 320 flats in an area measuring 4.3. acres.
11. Planning permission has been granted by the second respondent which is challenged in the writ petition. It is the case of the petitioner that in the locality, the availability of water is scarce and during summer it is even difficult to the present inhabitants. The individual houses have to take water only from the well, which is about 7 to 8 meters in depth. The wells in the area are between 1 and 1.5 meters in diameter and 7 to 8 meters in depth at the height of summer, and that will be hardly sufficient for their daily requirements. It is said that if M/s. Hansa Estates are allowed to put up construction, the water consumption would be 18,000 litres per day and taking into consideration the lie of the property the entire well which had been dug by the members of the petitioners association will get dried up and thus no water would be there. It is also their grievance that there is no proper drainage facility and if 320 flats are coming up, the entire sewerage system in t he area will also be affected. Without taking into consideration any of the facts, the respondent has given planning permission to the Hansa Estates. Even according to the Tamil Nadu Town and Country Planning Act, the authorities are bound to consult the respondents 7 and 8 and in this case there is no such consultation and therefore the entire planning permission is liable to be quashed.
12. It is submitted on behalf of the respondents 2, 7 and 8 that the Government has passed G. O. Ms. 167 dated 2-8-96 and on that basis only 20 local bodies adjacent to Madras City have been extended for getting statutory benefit of Madras Metropolitan Water Supply and Sewerage Board and the subject matter of Writ Petition is not coming within that area. It is therefore submitted that Section 9(e) of Tamil Nadu Town and Country Planning Act will not apply in such cases and there is no necessity for consultation. It is better to incorporate the entire G. O. for our purpose, which read thus.
"In the G. O. second read above, the Government directed that the internal distribution system of the Madras Transmission and distribution system project to the 20 local bodies adjacent to Madras City be entrusted to Madras Metropolitan Water Supply and Sewerage Board. In the G. O. third read above, the Government have extended, the provisions of Sections 42 to 69 of the Madras Metropolitan Water Supply and Sewerage Act, 1978, (Tamil Nadu Act 28 of 1978) to the areas to 20 local bodies adjacent to Madras City mentioned in the Annexure to this Order.
2. Subsequently, however in pursuance of the decision taken in the meeting held on 4-2-94 under the Secretary, Municipal Administration and Water Supply with the officials of Tamil Nadu Water Supply and Drainage Board and Madras Metropolitan Water Supply and Sewerage Board, the Tamil Nadu Water Supply and Drainage Board was entrusted with the execution of the work to provide water supply to 20 local bodies adjacent to Madras City. In the same meeting, it was also decided that as regards sewerage schemes, officials of Madras Metropolitan Water Supply and Sewerage Board and Tamil Nadu Water Supply and Drainage Board would sort out the issues and come back to Government. In the meeting held on 8-3-94, under the Chairmanship of Vice Chairman, Madras Metropolitan Development Authority among other things, it was confirmed that the detailed plan and estimates for the water supply schemes and sewage system schemes for the 20 Municipalities/Town Panchayats/Village Panchayats will be prepared by Tamil Nadu Water Supply and Drainage Board.
3. The Chairperson and Managing Director, Metrowater has now, reported in the reference fifth read above that it is the obligatory duty of the Metro Water Board to execute water supply and sewerage work to the urbanised areas of 20 local bodies by virtue of the operation of Sections 42 to 69 in the 20 local bodies. The Chairperson Managing Director, Metro Water Board has also stated that though the investigation and preparation part of the work were allowed to be undertaken by the Tamil Nadu Water Supply and Drainage Board earlier, the investigation and preparation part of the work which are now pending with the Tamil Nadu Water Supply and Drainage Board may be handed over to the Metrowater Board.
4. The Government after careful consideration accept in principle, the proposals of Chairperson & Managing Director, Madras Metropolitan Water Supply and Sewerage Board and order as follows :--
(i) The entire Madras Metropolitan Water Supply and Sewerage Act, be extended to 20 local bodies which are listed m the annexure to this order.
(ii) The Madras Metropolitan Water Supply and Sewerage Board shall execute the work of Water Supply and Sewerage including sanitation in the above said 20 local bodies;
(iii) The Madras Metropolitan Water Supply and Sewerage Board shall collect revenue for O. & M and repayment of the loan. The Metro Water Board will be solely responsible for the entire project including investigation, preparation and executing of the work. Tamil Nadu Water Supply and Drainage Board will handover the remaining part of the work relating to investigation and preparation to the Metro Water Board by a specified date so as to enable the Metro Water Board to expedite the supply of water to the area in the 20 local bodies.
5. The Chairperson and Managing Director, Madras Metropolitan Water Supply and Sewer age Board is requested to send detailed proposals to formulate Guidelines for implementation of the -above schemes in the 20 local bodies in consultation with the Managing Director, Tamil Nadu Water Supply and Drainage Board and Director of Municipal Administration in due course."
The various villages included within the notification are, A: MUNICIPALITIES:
1. Alandur
2. Ambattur
3. Thiruvotriyur B. TOWNSHIPS
4. Madavaram
5. Kativakkam
6. Avadi C. TOWN PANCHAYATS
7. Nandambakkam
8. Valasaravakkam
9. Maduravoyal
10. Porur
11. Puzhithivakkam
12. Perungudi
13. Patlikaranai
14. Manali
15. Chinnasakadu D. VILLAGE PANCHAYATS
16. Kottivakkam
17. Ramapuram
18. Nerkundram
19. Aynambakkam E. CANTONMENT
20. St. Thomas Mount.
If that be so, the first contention raised by the counsel that without consultation of respondents, 7 and 8 planning permission cannot be granted fails.
13. The other contention that is raised by the counsel is that necessary protection has not been taken for preservation of the ground water and for sewerage problem. According to me the said submission also is not correct. M/s. Hansa Estate has taken expert opinion as to the availability of water and how far dugging of huge wells will affect the inhabitants was taken note of by the Experts S. J. Consultants, Madras, wherein they have said that they have arrived at certain conclusion which read thus.
"10.1 The results of hydrogeological and geophysical surveys reveal that the Hansa Garden area is highly suitable only for sinking open dug wells.
10.2. The water requirement per day for proposed Hansa Gardens is 2,50,000 Ltrs per day. By sinking 5 open dug' wells this 2,50,000 Ltrs may be drafted considering 50,000 Ltrs per day would be drafted from one new open dug well which may sustain 4 hours of pumping per day.
10.3 The sub-surface geological conditions indicate that persistence of weathering.extends down to 16 meters BGL and jointed rock forma tion extends down to 25 to 30 metres BGL. Hence proposed well depth is recommended as 16 M (52 ft.).
10.4 Hydrogeological study indicates that summer water leval is at 10.6 M (35 ft.) and summer recovery is 24 hours. Hence depth of the proposed well should be 16 M (52.4 ft.).
10.5 15 Fifteen vertical ejectrical soundings have been conducted in the Hansa Garden area.
Results are appended separately for best loca tions. Out of 15 locations, DP 1, DP2, DPS, DPS, DP9, DP 12, DP 13,8 locations are favourable for sinking open dug wells. Out of these 8 favourable locations, on priority basis, highly favourable best 5 five locations are selected for sinking new open dug wells.
No. Details DP2 28 Mtrs. towards West from the boundary. 3.3" North towards boundary line.
DP6 52 Mtrs. North West to Road side cornerstone. 9 M (30 ft) from the 7th Wooden Post. DPS 17 Mtrs. from Eastern Electric Post. 8.4 Mtrs. towards West from Othiya Tree. DP 12 Near Neem Tree. DP 15 FGH Gap Area.
10.6 Five new open dug wells may be sunk in the above said locations (5-M dia, 16-M depth) to cater to the needs of Hansa Garden Area.
10.7 The five new dug-wells may be circular in shape with 5-M diameter (16.40 ft.). The depth recommended is 16M (52.50 ft.) available water column during summer for pumping would be 5.3,4 M (17.5 ft.). These five new open dug wells may be sunk in the locations DP2, DP6, DPS, DP 12", DPS. It is recommended to insert vertical bore holes from the bottom of the wells for 21.35 Mtrs. (70 ft.). After construction of open dug wells pumping tests may be conducted to assess the real exact discharge and water samples may be collected from the proposed new wells and analysed to know the geochemical quality of the water."
14. With regard to the contention that protective measures have not been taken for sewerage purposes is also upheld by the effective steps taken by the builders, It is the case of the Hansa Estates that they are setting up Sewage Water Plant at Rajakilpakkam and M/s Windsor Sathyam Engg. (P) Ltd. have agreed to provide the same at a cost of Rs. 8,00,000/-. The details of which are also among the typed set of papers. They have also provided necessary drawing and the proposals made by M/s Windson Sathyarh Engg. (P) Ltd. also accepted. When necessary protective measures have been taken in that regard, I do not think the petitidner is aggrieved in any way;
15. As I said as on date, there is no evidence in the case that any of the rights of the petitioners are likely to be affected and major portion of the building has been constructed. How far the sew age problem is going to affect the locality, we have no evidence. The respondents have submitted expert opinion. As against the same, except some wild allegations, no evidence has been let in. The development authorities had various meetings with petitioners and others and thereaf ter planning permission has been granted. The statutory authority is presumed to have taken note of all these facts and then only they would have granted planning permission. Against the statutory presumption, there is no evidence at all on the part of the petitioners to show how far their rights are going to be affected.
16. Apart from the same, even though writ petition was filed along with Writ Miscellaneous petitions, no interim order was passed. Counsel for the respondents brought before me photographs regarding the nature and extent of construction that is being made and how far it has progressed. I find major portion of construction work is over and at this stage if the relief sought for by the petitioner is granted, that will only put the 9th respondent in great hardship. According to the Counter-affidavit, they have spent more than Rs. 2.5 crores as on date. Taking into consideration the above facts, I do not think that I should interfere at this stage.
17. In the result, all these writ petitions are dismissed. No costs. Consequently all the connected writ miscellaneous petitions are closed.