Madras High Court
P.S.Govindachari vs The Member Secretary on 21 January, 2020
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
WP.No.23833 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2020
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
W.P.No.23833 of 2014
and
M.P.Nos.1 & 2 of 2014
P.S.Govindachari,
Managing Director/Authorised Signatory,
Rajsriya Automotive Industries Pvt. Ltd.,
No.95, Harrington Road,
Ground Floor, Chetpet,
Chennai - 600031. .. Petitioner
Versus
1.The Member Secretary,
Mamallapuram Local Planning Authority,
13, Varadharajar Street,
Vedachalam Nagar,
Chengalpet - 603001.
2.The President,
Muttukadu Panchayat / Village,
Tiruporur Panchayat Union,
Tiruporur Taluk,
Kancheepuram District,
PIN - 603103. .. Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for
a writ of Certiorari, calling for the records of the respondents culminating in the
impugned notice issued by the 1st respondent dated 24.07.2014 bearing reference
e.f. No.875/2012 khc½F/ and quash the same.
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For Petitioner : Mr.N.Alagu Narayanan
For Respondents : Mr.E.Manoharan
Special Government Pleader
ORDER
[Order of the Court was made by M.SATHYANARAYANAN, J.,] The petitioner is the Managing Director and Authorised Signatory of Rajsriya Automotive Industries Pvt. Ltd., Chetpet, Chennai - 31. According to him, the said company purchased a vacant housing land bearing Plot Nos.36 and 37, Olive Island, Muttukadu Village, Chengalpet Taluk, Kancheepuram District, comprised in Survey Nos.114/1A7 and 114/2A6 admeasuring to an extent of 16,208 sq.ft or thereabouts, by way of a registered sale deed bearing document No.2219/2009 dated 02.07.2009 registered on the file of Sub-Registrar, Tiruporur. The petitioner claims to have purchased a vacant land bearing Plot No.35 in the very same place, also comprised in Survey Nos.114/1A7 and 114/2A6 admeasuring to an extent of 8,211 sq.ft or thereabouts, by way of another sale deed bearing document No.5750/2010 dated 11.08.2010 registered on the file of Sub-Registrar, Tiruporur.
2.The petitioner submitted an application to the second respondent, namely The President, Muttukadu Panchayat/Village, Tiruporur Panchayat Union, Tiruporur Taluk, Kancheepuram District, vide application dated Nil and accordingly, a planning approval vide resolution dated 30.07.2012 was given, 2/15 http://www.judis.nic.in WP.No.23833 of 2014 subject to certain conditions in terms of the Tamil Nadu Panchayats Act, 1994 and the Tamil Nadu Panchayats Building Rules, 1997.
3.The petitioner claims to have commenced construction of the residential building and obtained electricity connection and started using the same as a guest house for their officials. The petitioner would submit, to their shock and surprise, the first respondent sent a notice dated 30.09.2013 under Sections 56 and 57 of the Town and Country Planning Act, 1971 (TCP Act, 1970), stating that if any planning permission has been accorded by the second respondent, the same is not legal and valid and called upon the petitioner to restore the land to its original condition and apply to the first respondent for planning permission, failing which, coercive action will be taken. The petitioner, in respect of the said notice, submitted an interim reply dated 05.11.2013, seeking further time to submit a detailed reply and also met the officials of the respondents, who after satisfying themselves about the planning permission given by the second respondent, observed that there is no need to give a detailed reply and that the files will be closed shortly. However, a notice dated 24.07.2014 was issued by the first respondent in Form II and affixed the same and according to the petitioner, it was not proceeded by any Show Cause Notice.
4.The learned counsel for the petitioner would submit that in terms of Rule 4 of the Tamil Nadu Panchayats Building Rules, the petitioner has applied for planning permission to the second respondent, who after due verification, granted 3/15 http://www.judis.nic.in WP.No.23833 of 2014 the sanctioned plan and further, the question of putting up a structure on the nature does not arise for the reason that in between Bay of Bengal and the property of the petitioner, there exists a road. As such, it cannot be termed as Non Development or Inter Tidal Zone. The learned counsel invited attention of this Court to the photographs, which would disclose that the super structure constructed is also inside Bay of Bengal. The learned counsel for the petitioner would submit, steps are already underway from the first week of January 2020 to remove the boulders and hence, prays for quashment of impugned order, with a further direction to the first respondent to afford an opportunity to explain their stand and thereafter, pass appropriate orders in accordance with law.
5.It is noted at this juncture, Mr.Murugan filed W.P.No.16083 of 2018 by way of a Public Interest Litigation, directing the respondents 1 to 5 to forthwith demolish the illegally constructed houses, compound wall constructed in the area in S.No. 114, Muttukadu Village, Kancheepuram District and restore the area to its previous pristine state and maintain the area free from any encroachment.
6.The writ petition along with other writ petition in W.P.Nos.2459/2013, 4566/2013, 7834/2013, 35319/2012, 11603/2013 and W.P.No.23833 of 2014 (the present writ petition) were ordered to be listed before Public Interest Litigation Roster Bench and accordingly, all the writ petitions were ordered listed before this Bench.
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7.When the Public Interest Litigation in W.P.No.16083 of 2014 and the present writ petition were listed on 28.11.2019, this Court having taken note of the factual circumstances, directed the concerned authority to disconnect electricity supply granted to the premises in question, which is the subject matter of the present writ petition.
8.All the writ petitions were listed again on 19.12.2019 and it was represented by Mr.E.Manoharan, learned Special Government Pleader appearing for the official respondents that there exists six buildings on the Inter Tidal Zone and inspections on all buildings have been conducted and in respect of two buildings, they are virtually inside Bay of Bengal and to prevent damage to the super structures, boulders have been put up and the concerned owners are directed to remove the same and also produce the Field Inspection Report submitted by the second respondent and this Court has also taken the said report on file and recorded.
9.The contents of the Field Inspection Report dated 16.12.2019 would disclose among other things that it was inspected by PWD officials and officials of Mamallapuram Town Planning Authorities and officials of Postal Management Authority and it is relevant to extract the following:
Observations:
During joint inspection of the subjected area, as per the Orders of the Hon'ble High Court dated 28.11.2019, the following were observed.5/15
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1. In the Survey Numbers 114/1A7 and 114/2A6, there were some houses constructed on the shore (ante) and some of the adjacent areas were divided into plots.
2. It was also seen that Groynes had been constructed by the Department of Fisheries on the Muttukkadu Backwaters mouth and rear side of CIBA (Central Institute for Brackishwater Aquaculture), during late 2016 and early 2017.
3. It is seen that to protect the building from the sea wave certain Houses in the above said strip of land have deposited rock boulders, thus forming a sea wall which is now acting as they Groyne and the adjacent beach area on its northern side is getting eroded.
4. The Sea wall using boulders have been installed without any clearance from the concerned authority. The area is found to fall within CRZ III (NDZ) according to the Coastal Regulation Zone Notification.
Observations through Google Imageries from 2005:
S.No Period Observations
1. February A narrow strip of land is present with wide
2005 beach (even after occurrence of Tsunami)
2. May 2007 A narrow strip of land is present with wide
beach
3. April 2009 The subject land was divided into number
of plots. Also, the backwater has been
filled in some areas. The width of beach at
the rear side of compound wall is 32
metres.
4. June 2010 Two houses have been constructed in the
subject land. The width of beach at the
rear side (sea-side of the building)
compound wall was 30 metres.
5. June 2013 The width of beach at the rear side of
compound wall was 33 metres.
6. September One more house has been constructed in
2014 the above subject strip of land. The width
of beach at the rear side of compound wall
was 43 metres.
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S.No Period Observations
7. January 2016 One more house has been constructed in the subject land. The width of beach at the rear side of compound wall was 40 metres.
8. June 2017 The width of beach at the rear side of compound wall was 20 metres.
9. December The sea waves had started colliding with 2017 the rear side of compound wall of House in Plot No.32 and the compound wall had been affected. It is around this juncture in time that the boulders were deposited at the rear side of a House to form a barrier/ sea wall.
10. June 2018 The waves had also started colliding with the rear side of Sea wall of the House in Plot Nos.35,36,37 and around this time the compound wall had collapsed herein and the walls for the other plots had also fallen down. It is seen that boulders had been deposited at the rear side of the House herein thus forming a sea wall. The Sea wall was present at the rear side of two houses.
11. February The waves are seen colliding with the 2019 boulders. Erosion is noticed in the Northern Side of the Houses.
12. December There is no beach between the two 2019 Houses, where boulders had been deposited, and the Sea.
Conclusion:
5. It is thus seen that to prevent further erosion of the land on the Northern Side, the boulders deposited by the Houses, thus forming sea walls have to be removed immediately to prevent any further environmental damage or erosion.7/15
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10.Mr.E.Manohar, learned Special Government Pleader appearing for the official respondents would submit that the Coastal Zone Management Plan for Tamil Nadu was approved on 27.09.1996 and the area / land in question which lies before Muttukadu river mount was classified as CRZ-III and the validity of the notification have been extended periodically. It is further pointed out by the learned Special Government Pleader, the said notification was replaced by yet another notification dated 06.01.2011 and in respect of CRZ-III, the following activities alone are permitted and it is relevant to extract the same.
III. CRZ-III,-
A. Area upto 200mts from HTL on the landward side in case of seafront and 100mts along tidal influenced water bodies or width of the creek whichever is less is to be earmarked as “No Development Zone (NDZ)”,-
(i) the NDZ shall not be applicable in such area falling within any notified port limits;
(ii) No construction shall be permitted within NDZ except for repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification including facilities essential for activities; Construction/ reconstruction of dwelling units of traditional coastal communities including fisherfolk may be permitted between 100 and 200 metres from the HTL along the seafront in accordance with a comprehensive plan prepared by the State Government or the Union territory in consultation with the traditional coastal 11 communities including fisherfolk and incorporating the necessary disaster management provision, sanitation and recommended by the concerned State or the Union territory CZMA to NCZMA for approval by MoEF;
(iii) however, the following activities may be permitted in NDZ –
(a) agriculture, horticulture, gardens, pasture, parks, play field, and forestry;
(b) projects relating to Department of Atomic Energy;
(c) mining of rare minerals;
(d) salt manufacture from seawater;
(e) facilities for receipt and storage of petroleum products 8/15 http://www.judis.nic.in WP.No.23833 of 2014 and liquefied natural gas as specified in Annexure-II;
(f) facilities for regasification of liquefied natural gas subject to conditions as mentioned in subparagraph (ii) of paragraph 3;
(g) facilities for generating power by non conventional energy sources;
(h) Foreshore facilities for desalination plants and associated facilities;
(i) weather radars;
(j) construction of dispensaries, schools, public rain shelter, community toilets, bridges, roads, provision of facilities for water supply, drainage, sewerage, crematoria, cemeteries and electric sub-station which are required for the local inhabitants may be permitted on a case to case basis by CZMA;
(k) construction of units or auxiliary thereto for domestic sewage, treatment and disposal with the prior approval of the concerned Pollution Control Board or Committee;
(l) facilities required for local fishing communities such as fish drying yards, auction halls, net mending yards, traditional boat building yards, ice plant, ice crushing units, fish curing facilities and the like;
(m) development of green field airport already permitted only at Navi Mumbai.
11.The submission of the learned Special Government Pleader reveals that, CRZ-III is a Non Development Zone and also Inter Tidal area and apart from the aforesaid activities, no other activities can go on, in terms of the planning approval given by the second respondent-President and in violation of the Tamil Nadu Panchayats Building Rules. The said act of the second respondent is per se illegal. This Court may pass appropriate orders for demolition of the super structure.
12.This Court paid it's best attention to the rival submissions and also perused the materials available.
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13.The Hon'ble Supreme Court of India in the recent decision reported in (2019) 7 SCC 248 in the case of The Kerala State Coastal Zone Management Authority vs. State of Kerala Maradu Municipality and others, taken up the issue relating to construction of very may flats in Maradu municipality at tidal influenced water bodies and after hearing the rival submissions, also constituted a Commission and the Commission's report was also submitted before the Hon'ble Supreme Court of India.
14.The Hon'ble Supreme Court of India, after extracting the notification dated 19.02.1991 relating to CRZ-III in paragraph 11 of the order and taking into consideration various decisions, in paragraph 18 observed as follows:
18. In the instant case, permission granted by the Panchayat was illegal and void. No such development activity could have taken place in prohibited zone. In view of the findings of the Enquiry Committee, let all the structures be removed forthwith within a period of one month from today and compliance be reported to this Court.
15.In the considered opinion of this Court, the second respondent is not vested with any authority under the Tamil Nadu Panchayats Building Rules to accord a Planning Commission to put up a super structure on a land falling under CRZ-III, which is a Non Development Zone and also an Inter Tidal Zone. The 10/15 http://www.judis.nic.in WP.No.23833 of 2014 above said Judgement of the Hon'ble Supreme Court of India have full application to the facts of the case on hand. It is also relevant to refer to the super structure put up by the petitioner.
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16.The petitioner, in order to protect the super structure from the path of sea, has put up many boulders without any prior permission, which would also lead to sea erosion at some places.
17.In the light of the above facts and circumstances, this Court is of the considered view that the super structure in question put up by the petitioner herein is to be demolished.
18.No tenable legal grounds have been made out by the petitioner as to the legality of the super structure, which came into the line of inter Tidal and Non Development Zone classified as CRZ-III in the above said notification.
19.In the result, the Writ Petition is dismissed and the ad-interim injuction granted by this Court on 03.09.2014 in M.P.No.1 of 2014 in this writ petition, stands vacated. No costs.
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20.The first respondent in co-ordination with the Tamil Nadu Coastal Zone Management Authority, represented by its Member Secretary, Panagal Building, Saidapet, Chennai, along with the Collector of Kancheepuram District shall carry out the demolition of the super structure, as expeditiously as possible, bearing Plot Nos.35, 36 and 37, Olive Island, Muttukadu Village, Chengalpet Taluk, Kancheepuram District, comprised in S.Nos.114/1A7 and 114/2A6, and also remove the boulders and the cost of the same shall be recoverable from the petitioner.
21.The Superintendent of Police, Chengalpet and Kancheepuram Districts are also directed to accord necessary police protection for carrying out the said work as ordered in this writ petition.
22.At this juncture, the learned counsel for the petitioner undertakes to remove the boulders put up by him and he may be permitted to do the said work, within a period of two weeks from the date of receipt of a copy of this order, failing which, it shall be removed at the cost and consequences of the petitioner, apart from demolition of the super structure.
[M.S.N.,J] [R.H.,J]
21.01.2020
Index:No
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Internet:Yes
Speaking order
hvk
Note: Communicate a copy of this order to the Secretary, Municipal Administration and Water Supply Department.
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