Madras High Court
M/S.Resident Welfare Association Of ... vs The Commissioner on 22 September, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.20006 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 18.08.2022
Pronounced On 22.09.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.20006 of 2020
and
W.M.P.No.24684 of 2020
M/s.Resident Welfare Association of Sathya
Sai Nagar Sri Sathyanarayan Nagar and
Fathima Ummer Avenue,
Represented by its Secretary,
Podanur, Coimbatore – 641 023. ... Petitioner
Vs.
The Commissioner,
Corporation of Coimbatore,
Coimbatore, Coimbatore District. ... Respondent
Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Mandamus, to forbear the respondent, its
subordinates, men and servants from in any way interfering with the
petitioner's peaceful possession and enjoyment of the open space area
which has been earmarked for park in Sathya Narayan Nagar and Sai
Nagar, Podanur, Coimbatore – 641 023 by erecting sewerage plant or in
any other manner whatsoever.
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https://www.mhc.tn.gov.in/judis
Page No 1 of 67
W.P.No.20006 of 2020
For Petitioner : Mr.N.C.Ashok Kumar
For Respondent : Mr.S.Silambanan,
Additional Advocate General, assisted
by Mr.K.Magesh, Standing Counsel
ORDER
The petitioner a Resident Welfare Associate has filed this Writ Petition for issuance of a Writ of Mandamus, to forbear the respondent Commissioner, Corporation of Coimbatore from in any way interfering with the peaceful possession and enjoyment of open space earmarked for the park in Sathya Sai Nagar Sri Sathyanarayan Nagar and Fathima Ummer Avenue, Podanur, Coimbatore.
2. The respondent has started implementing a project under the Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme of the Union Government. This Scheme identified about 500 cities on 25.06.2015 as a first focused national water mission. The Scheme is intended to provide universal coverage of water supply by providing 1.39 crore household tap connections and to increase the coverage of sewer / septage connections from 31% to 62 %. This Scheme is also intended to ensure 100% coverage of sewerage / septage ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 67 W.P.No.20006 of 2020 management in 500 Atal Mission for Rejuvenation and Urban Transformation (AMRUT) cities. Coimbatore is one among the 500 cities identified for the aforesaid Scheme.
3. The Union Ministry of Housing and Urban Affairs, in its note, has stated that States / Union Territories and Urban Local Bodies have accepted a tripartite Memorandum of Understanding (MoU) with it. It was also noted that Ministry of Housing and Urban Affairs, States / Union Territories and Urban Local Bodies were to align themselves to the roles and responsibilities as per the Memorandum of Understanding (MoU). One of the projects is City Water Balance Plans (CWBPs).
4. CWBPs is intended to comprise details of water sources including water bodies, water treatment and distribution infrastructure, area-wise water coverage, status of NRW and sewerage network including STPs etc. Urban Local Bodies were to compile baseline data on household water tap and sewer/ septage connections and gaps in service delivery were to be worked out. Based on assessed gaps, potential projects were to be identified targeting functional outcomes.
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5. State and Urban Local Bodies targeted to achieve universal coverage of water supply to all households in all Urban Local Bodies and sewer/ septage connections in 500 Atal Mission for Rejuvenation and Urban Transformation (AMRUT) cities through projects proposed under Atal Mission for Rejuvenation and Urban Transformation (AMRUT) 2.0, ongoing Atal Mission for Rejuvenation and Urban Transformation (AMRUT) projects and projects/ initiatives funded by State/ Urban Local Bodies funds, XV FC grants, funding from external sources and Public Private Partnership (PPP) etc. The extent of gaps proposed to be filled through each of aforementioned sources was to be clearly identified. City Water Balance Plans (CWBPs) were to be filled on the online formats provided for this purpose on the portal. City Water Balance Plans were also to be published on respective Urban Local Bodies and State websites.
6. The implementation of the Scheme under the Atal Mission for Rejuvenation and Urban Transformation (AMRUT) is under the Union Ministry of Housing and Urban Affairs for the following:-
______________ https://www.mhc.tn.gov.in/judis Page No 4 of 67 W.P.No.20006 of 2020 Sl. Functional Admissible elements of Projects No. outcomes 2 Providing universal ● Sewerage network coverage of ● Interception and Diversion (I&D) sewerage and infrastructure septage ● Sewage Treatment Plants (STPs) management in 500 ● Tertiary Treatment with end-to-end AMRUT cities and reuse plan (preferably in PPP promoting circular mode) economy of water ● Faecal sludge and Septage management (FSTP cum STP Plant & collection mechanism) ● Provision/ augmentation and rehabilitation of sewerage systems with end-to-end treatment and reuse ● Tapping of used water for recycling ● Identifying the bulk users of recycled used water and facilitating sale of used water to potential users (e.g. industrial clusters such as textile/ leather/ paper/ power plants/ railways, etc.) ● Smart solutions like SCADA ● Last mile connectivity to households (Not exceeding Rs.3000 per HH) 3 Rejuvenation of ● Rejuvenation of wetlands, water water bodies to bodies by desilting, strengthening augment water and the embankments, and stone enhance amenity packing.
value and ● Diverting the polluting drains to development of treatment plants ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 67 W.P.No.20006 of 2020 green spaces ● Harvesting the rain water through storm water drains into water body (which is not receiving sewage/ effluent) ● Strengthening/ rejuvenation of the aquifers/ community wells ● Creation/ strengthening of storm water drains around water body ● Provision of STP to treat inflow into water body.
● Development of the community green spaces linked to a clean water body ● Funds for the projects of this sector shall not exceed 5% of total project allocation (4% for rejuvenation of water bodies and 1% for development of green spaces & parks).
7. The plan appears to have been prepared based on geo-data creating or Survey of India (SOI) for drone / Unmanned Aerial Vehicle based geo-data creation, based on requirement of State / Union Territories Governments.
8. The sub-scheme was to encourage implementation of Local Area Planning (LAP) and Town Planning Scheme (TPS) in the selected cities targeting optimum land utilisation to help States and cities in preparing ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 67 W.P.No.20006 of 2020 Local Area Planning / Town Planning Scheme plans through stakeholder consultation. Handholding was to be provided for the same.
9. It appears that after the respondent proposed the implementation of the aforesaid Scheme, the petitioner sent a representation dated 10.12.2018 to the respondent and requested the respondent to forthwith stop the implementation of the Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme by using a portion (800 sq.ft., around 32%) of the common area measuring an extent of 2476.60 sq.mts (61.71 Cents) in their layout, where, pumping station at an estimate of about Rs.442 Crores is now under construction.
10. The petitioner has also underlined the importance of use of the common area for the residents of Sathya Sai Nagar Sri Sathayanarayan Nagar and Fathima Ummer Avenue as a walking place and a playing area for the children. The petitioner has also expressed fear in the implementation of the aforesaid Scheme by the respondent as it would create septic smell and would pose a potential threat to the health of the residents in the said layout.
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11. The petitioner thus filed W.P.No.3405 of 2019 for issuance of a Writ of Mandamus to direct the first respondent to consider the representation dated 10.12.2018 of the petitioner and to drop the project of putting up sewerage pumping station by the respondent herein in the area which was earmarked as open space and utilized as Park. By an order dated 12.02.2019, the said Writ Petition was disposed with the following observations:-
3.Considering the above submissions made, without expressing any opinion as to the merits of the case, the second respondent Corporation is directed to consider the petitioner's representation dated 10.12.2018 on merits and in accordance with law, as early as possible, preferably within a period of four weeks from the date of receipt of a copy of this order.
12. Thereafter, by an order dated 13.05.2019, the respondent has disposed the representation dated 10.12.2018 with the following observations:-
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13. Thereafter, the respondent proceeded with the work. A representation dated 07.06.2019 was once again sent by the petitioner.
The petitioner once again requested the respondent to stop the work.
Since the respondent proceeded with the work further, the present Writ Petition was filed by the petitioner.
14. By an order dated 23.12.2020, this Court directed the respondent to maintain “status quo”. It appears that the order was secured by the petitioner through Video Conferencing during the lock down. Since the work continued, a Contempt Petition was filed by the petitioner in Cont.P.No.74 of 2021. The said Cont.P.No.74 of 2021 was ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 67 W.P.No.20006 of 2020 later closed after recording the submission of the learned Standing Counsel for the respondent that there was a communication gap between the contractor and the corporation and immediately after coming to know about the interim order dated 23.12.2020 of this Court, the work was stopped and thereafter no work was carried thereafter.
15. The challenge to the implementation of Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme in the common area (open space) in the layout is based on the well settled principles of law that the use of area earmarked for the common purpose cannot be changed by the “Local Authority”. That apart, it is submitted that the implementation of Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme is almost taking away 20 Cents of open space which is also 32% of the common area. It is submitted that the implementation of Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme by the respondent deprives the play area for the children and walking area for the residents of the petitioner society who are accustomed to such facilities and amenties.
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16. That apart, it is submitted that the implementation of the project possess a risk to the Noyyal River which abuts the common area.
It is submitted that sewages from the other neighbouring area are to pass through the pumping station under construction may pollute the river. It is further submitted that there are several Government lands available in the neighbourhood and therefore the implementation of the project can be shifted to the neighbouring land by realigning the path of the pipe lines.
17. A reference was made to the decision of this Court in Alamunagar Resident Welfare Association Vs. State of Tamil Nadu rep. by its Secretary and others, 2010 SCC OnLine Mad 39 : (2010) 4 L.W. 76, where, at request of the Alamunagar Resident Welfare Association, the same project was shifted to the other place. The Court there held as under:-
47. I am also constrained to hold that once the land is reserved for public purpose, the Corporation gets a right as a custodian only to manage the same.
The reservation however, does not, by itself, confer any right or title or interest thereof in the Corporation. As pointed out in the decision reported in (1995) 1 SCC 47 (PT. Chet Ram Vashist v. Municipal Corporation of Delhi), public interest ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 67 W.P.No.20006 of 2020 cannot be stretched to create a right in the Corporation beyond the status of a trustee or a custodian to manage the property for the public purpose. In the above-said circumstances, the Government cannot change the character of the reservation and is, in fact, estopped from de- reserving the same to the benefit of the individual/owner who sought for a sanction of the layout. The reservation of land being part of the layout sanctioned, the petitioners, who had gone for the purchase of the reserved plots under the sanctioned scheme, which assures open space, are entitled to the enjoyment of the long space reserved as every other member of the public.
..............
65. Going by the sanction, the reservation of an extent of the land for public purpose continues to have its force. The Corporation and the owner of the property are bound to manage the same for the benefit of the public. The rights of the Corporation is limited to that of a custodian to manage the reserved site for public purpose. In the absence of any provision either under the Coimbatore City Municipal Corporation Act or under the Tamil Nadu Town and Country Planning Act that except in respect of cases reserved/designated in the plan as required for public purpose falling under Sections 36 to 39, reserving a site in a layout plan on an application under Section 49 for public purpose, does not, by a mere specifying of the land as open space, fall for consideration under Section 36 to 39. The reservation, thus, by itself, does not result in the transfer of the property to the Corporation. The effect of the reservation is that while losing his exclusive right as a legal owner, thereby, restricting the rights ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 67 W.P.No.20006 of 2020 of the owner for selling or transferring his interest in it, the owner holds the land for the benefit of the society creating an obligation in the nature of trust. The Corporation becomes a custodian of the public interest to manage it in the interest of the society at large. In this, both the owner as well as the Corporation on one hand and all those purchasers share the equal responsibility of maintaining and preserving the reserved area, thereby, protecting the area on public purpose from abuse from any quarters. In the circumstances, the question of de-reservation does not arise, or for that matter, transferring the reserved area to the name of the Corporation. The order made by the Government in the review petition is totally devoid of any merits and there are no grounds indicated in the order to consider how the private interest has been considered as outweighing the public interest to order de-reservation.
18. It is submitted that pumping station can also be shifted out of the common area gifted to the Local Authority at the time when the layout approval was granted in the year 1987. A reliance was also placed on the following decisions:-
i. Bangalore Medical Trust Vs. B.S.Muddappa and others, (1991) 4 SCC 54.
ii. PT. Chet Ram Vahist (Dead) rep. by Lrs. Vs. Municipal Corporation of Delhi, (1995) 1 SCC 47. iii. Machavarapu Srinivasa Rao Vs. Vijayawada, ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 67 W.P.No.20006 of 2020 Guntur, Tenali, Mangalagiri Urban Development Authority and others, (2011) 12 SCC 154.
iv. Purushottam Vs. State of Karnataka and others, (2014) 3 SCC 721.
v. Sri Devi Nagar Residences Welfare Association Vs. Subbathal and others, (2007) 3 L.W. 259. vi. Kirubakaran and others Vs. The Commissioner (East), Corporation of Coimbatore, 2013 (6) CTC 441.
vii.K.Rajamani and others Vs. Alamunagar Residents’ Welfare Association and others, 2011 (1) CTC 257.
viii.E.Elumalai and others Vs. Corporation of Madras and others, (2002) 3 L.W.180.
19. The learned counsel for the petitioner has drawn attention to the FMB Sketch to demonstrate that Governments lands are available in the vicinity and therefore, without inconvenience of any of the residents and the members of the petitioner, the project under implementation can be realigned in anyone of the other vacant Government lands.
20. The learned counsel for the petitioner has also drawn attention to Section 6 of the Tamil Nadu Parks, Play-Fields and Open Spaces (Prevention and Regulation) Act, 1959, as per which, no park, play-field ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 67 W.P.No.20006 of 2020 or open space specified in the list published under Section 4 or 5 shall, except with the previous sanction of the Government, be used for any purpose other than the purpose or purposes for which it was used on the date of the coming into force of the Act under Sub-Section (3) of Section 1 or on the date with effect from which the Act is extended to the local area concerned under Sub-Section (4) of Section 1, as the case may be.
21. It is submitted that the respondent has failed to maintain the open space as a custodian of public interest and any attempt to change the use of the land is impermissible under law.
22. Opposing the prayer, the learned Additional Advocate General submits that the project has been implemented substantially and the Government has incurred huge amount and therefore it is not open for the petitioner to interfere with the implementation of the project. It is submitted that the project is being implemented for “public purpose” under Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme. It is submitted that it is an integrated project involving in several locations and therefore there cannot be any change in ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 67 W.P.No.20006 of 2020 the alignment at this distant point of time, as the Government has heavily invested in the implementation of the project. The Scheme is being implemented in accordance with the guidelines of Union Ministry of Housing and Urban Affairs.
23.Attention was drawn to Chapter 4 – Design and Construction of Sewage Pumping Stations and Sewage Pumping Mains. Clause 4.1.2 – Location and Configuration reads as under:-
4.1.2 Location and Configuration The proper location of the pumping station requires a comprehensive study of the area to be served, to ensure that the entire area can be adequately drained.
Special consideration has to be given to undeveloped or developing areas and to probable future growth. The location of the pumping station will often be determined by the trend of future overall development of the area. The site should be aesthetically satisfactory. The pumping station has to be so located and constructed such that it will not get flooded at any time. The storm-water pumping stations have to be so located that water may be impounded without creating an undue amount of flood-damage, if the flow exceeds the pumping station capacity. The station should be easily accessible under all weather conditions. Pumping stations are typically located near the lowest point in a development. However, the siting and orientation ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 67 W.P.No.20006 of 2020 of each pumping station shall be considered individually and based on the following criteria:
● Local topography as slope of the ground and above and below ground obstructions. ● Proposed layout of the particular development and of future developments.
● Proximity of proposed and/or existing sewerage infrastructure.
● Size and type of the pumping station. ● Access considerations for O&M needs including operators health and safety issues ● Visual impact, particularly the vent tube, odours, noise problems, etc., ● Availability of power, water, etc., ● Vulnerability of the site for inundation ● Compatibility to neighbouring residences by suitable dialogues.
Of these, the inundation is the key and can result in major environmental and health problems in case raw sewage is flushed to the surface due to flooding of the wet well, or because of failure of the system due to a partially/fully submerged switchboard. Inundation may also result in severe scouring around structures, particularly around the wet well, valve chamber, and possibly cause damage to the critical components such as the electrical switchboard. Accordingly, the designer shall establish the levels of the top of the wet well wall, top of valve chamber walls and top of the plinth supporting the electrical cubicle, so that those structures cannot be inundated by a flood of a 1 in 100-year recurrence interval.
Preferred method will be the formed ground level to be at the 1 in 100 -year flood level and building plinth and top of wet wells etc. shall be at 0.45 m above.
______________ https://www.mhc.tn.gov.in/judis Page No 17 of 67 W.P.No.20006 of 2020 Ditch drain shall be mandatorily provided all around and if it is not possible to drain by gravity to the nearby natural drain. Drain pump sets shall be installed with 100% standby to pump out rain water and connected to the standby power. Rain-water harvesting shall not be provided in sewage pumping stations to avoid ground water pollution by raw sewage due to accidental spillage.
Minimum number of wet wells shall be two, irrespective of the volume of sewage to be pumped out and the structures shall be as far possible circular in plan to facilitate simpler and economical construction, besides the possibility of removing accumulated grit from one of the wells at a time without interrupting the pumping out.
24. It is further submitted that most of the houses of the members of the petitioner society are not equipped with the proper sewage disposal mechanism, as a result of which, sewage is being let out in the Noyyal River. That apart, it is submitted that septic tanks which have been put up by the individuals can lead to leaching and thereby pollute the groundwater and river. The members of the petitioner society are letting out the sewage in the Noyyal River. It is submitted that the Scheme is being implemented with equipments consisting of Pumping Main, Trunk Main, Pumping Station and Lifting Station etc. ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 67 W.P.No.20006 of 2020
25. The learned Additional Advocate General for the respondent has referred to a decision of this Court in W.P.No.10307 of 2020 filed by M/s.Arputham Nagar Residents, Coimbatore. The said Writ Petition was dismissed by the Division Bench of this Court vide order dated 07.08.2020. It is further submitted that the S.L.P.(C) No.10617 of 2020 filed against the said order dated 07.08.2020 of the Division Bench of this Court, was also dismissed by the Hon’ble Supreme Court vide order dated 17.09.2020.
26. It is submitted that a Full Bench was constituted by the Hon’ble Chief Justice of this Court to examine the issue arising under the Solid Waste Management Rules, 2016 in view of the conflicting views as to whether the layout plan finalised as per the provisions of the Tamil Nadu Town and Country Planning Act, 1971, read with the Development Control Rules framed thereunder, permits deviations therefrom in larger public interest or not?
27. It is submitted that the Full Bench, after examining the issue at ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 67 W.P.No.20006 of 2020 length, has answered the issue by upholding that such deviations are permissible in the light of the provisions of the Tamil Nadu Town and Country Planning Act, 1971 and the Tamil Nadu Combined Development and Building Rules, 2019.
28. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Additional Advocate General for the respondent.
29. The question that arises for consideration in this Writ Petition is whether the land gifted to the Local Authority for common area by the promoter of the layout can be utilised by the respondent for putting up a sewage pumping station under the Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme? The members of the petitioner Associate have invested and built their houses in the layout, where, 61.17 Cents (2476.6 sq.mts.) of land was earmarked for common area / public purpose as open space.
30. Article 39(b) of the Constitution of India states that the ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 67 W.P.No.20006 of 2020 ownership and control of the material resources of the community are so distributed as best to subserve the common good. The actual expression used is “material resources of the community” which is wide enough to cover not only natural or physical resources but also movable or immovable properties. The expression “material resources of the community” means all things which are capable of producing wealth and of use for the community. Common area is intended for use of the community. Its use is not confined only for the benefit of the member of the layout. Common area is an area which can be used by any section of the public without any restriction.
31. Whenever a problem of ecology is brought before the Court, the Court is also bound to consider Article 48A of the Constitution of India. It contemplates the protection and improvement of environment and safeguarding of forests and wild life.
32. There is also a corresponding fundamental duty on every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 67 W.P.No.20006 of 2020 under Article 51A(g) of the Constitution of India. Under Article 21 of the Constitution of India, the right to life includes the right to clean environment. Citizens cannot be allowed to be accessories to pollute the rivers and water body, if a better option is available which is modern and contemporary and allows a better management of sewage. The age-old practice of dumping sewage in a septic tank or into water bodies has to give way for modern, safe and efficient management and disposal of sewage in a more scientific way.
33. Though in Babu Ram and Another Vs. State of Haryana and Another, (2009) 10 SCC 115, the Hon’ble Supreme Court had restrained the Development Authority from proceeding with the construction of Sewage Treatment Plant near the School, it was on account of possible health hazards to children.
34. In Sachidanand Pandey Vs. State of West Bengal, AIR 1987 SC 1109, the Hon’ble Supreme Court held as follows:-
“Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48A of the Constitution the Directive Principle ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 67 W.P.No.20006 of 2020 which enjoins that “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country,” and Article 51(g) which proclaims it to be the fundamental duty of every citizen of India "to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures. "When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is matter for the policy making authority. The least that the court may do is to examine whether appropriate considerations are borne in mind irrelevancies excluded. In appropriate cases, the Court may go further, but how much further must depend on the circumstances of the case. The court may always give necessary directions. However the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the court may feel justified in resigning itself to acceptance of the decision of the concerned authority. If the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for the court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public.
35. Applying the above guidelines to be followed, the Hon'ble ______________ https://www.mhc.tn.gov.in/judis Page No 23 of 67 W.P.No.20006 of 2020 Supreme Court observed that when questions of ecology and environment are raised, it was observed that it is clear that the facts and circumstances brought out by the appellants do not justify an inference that the construction of the proposed hotel in the Begumbari land would interfere in any manner with the animals in the Zoo and the birds arriving at the zoo or otherwise disturb the ecology. The proposed hotel is a Garden-hotel and there is perhaps every chance of the ecology and environment improving as a result of planting numerous trees all around the proposed hotel and the removal of the burial ground and dumping ground for rubbish.”
36. In G.N. Khajuria Vs. Delhi Development Authority, AIR 1996 SC 253, the Hon’ble Supreme Court held that when “a portion of land of land reserved for public purpose in a layout or in a development plan or master plan approved by the Local Body cannot be used for any other purpose, than the one specified therein”. The Hon’ble Supreme Court in State of Bombay Vs. R.N.Nanji, AIR 1956 SC 294, had earlier taken a similar view where the use of land earmarked for public and later allotted to school was inferred. However, the facts ______________ https://www.mhc.tn.gov.in/judis Page No 24 of 67 W.P.No.20006 of 2020 are totally different.
37. The Supreme Court in State of Bihar Vs. Maharajadhiraja Sir Kameshwar Singh of Dharbanga, 1952 SCR 889 : AIR 1952 SC 252 held that public purpose will be construed to promote the welfare of the people at large and if there is dispute regarding public purpose, the Courts have jurisdiction and it is their duty to determine the matter whether the requisition is made to acquire the land according to the spirit of the times in which particular legislation is enacted.
38. The Hon'ble First Bench of this Court in R.Chandran Vs. State of Tamil Nadu, 2010 4 CTC 737 : (2010) 8 MLJ 105 which is relied by the petitioner has considered the proposal for conversion of public purpose and play ground into an underground car park by Corporation of Chennai, under the Town and Country Planning Act and Section 2(34) of Development Control Rules, etc. It held that if an area is specified as an open space, the Corporation may at best get a right as “custodian of public interest” to manage it in the interest of society ______________ https://www.mhc.tn.gov.in/judis Page No 25 of 67 W.P.No.20006 of 2020 in general and in breach of this custodianship, any attempt to change the use of such land would be impermissible under law and would be against the public interest and thus restrained the Chennai Corporation from constructing an underground car parking in the playground. Though the Hon'ble First Bench of this Court has discussed several judgments of the Hon'ble Supreme Court, there is no reference to Section 20 and Section 47 of the Tamil Nadu Town and Country Plannin Act, 1971.
39. The facts on record indicate that about 10% of the land was gifted to the Local Authority at the time when the Kurichi Town fell within the purview of Kurichi Town Panchayat. Approximately, 50% of the aforesaid land was utilized for putting up a community centre. The balance land appears to have been left as open space which abuts the Noyyal River. The land measuring an extent of 1.23 Acres was approximately gifted in favour of the said Local Authority for open space reserved. Gifting of the land was in line with the provisions of the Tamil Nadu Panchayat Act, 1958 read with the provisions of the Tamil Nadu Town and Country Planning Act, 1971.
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40. It is the specific case of the petitioner that the aforesaid land was used by its residents for recreation purposes and as a play area and as a walking space etc. At the time when the layout was formed way back in 1987 and plan was approved by the then Deputy Director of Town and Country Planning, Coimbatore Region on 11.05.1987 under Section 48 of the Tamil Nadu Town and Country Planning Act, 1971, it can be assumed that there were not many developments in the surrounding area of the layout.
41. The approved plan pre-dates the enactment of Tamil Nadu Panchayat Act, 1994. The layout approval would have been in consonance with the Detailed Development Plan contemplated under the Act. As per Section 20 of the Tamil Nadu Town and Country Planning Act, 1971, a Detailed Development Plan may propose or provide for all or any of the following matters:-
(a) the laying out or relaying out of land, either vacant or already built upon, as building sites;
(b) the construction, diversion, extension, alteration, ______________ https://www.mhc.tn.gov.in/judis Page No 27 of 67 W.P.No.20006 of 2020 improvement or closure of lanes, streets, roads and communications;
(c) the construction, alteration, removal or demolition of buildings, bridges and other structures;
(d) the acquisition by purchase, exchange or otherwise of any land or other immovable property within the area included in the detailed development plan whether required immediately or not;
(e) the redistribution of boundaries and the reconstitution of plots belonging to owners of property;
(f) the disposal by sale, exchange, lease or otherwise of land acquired or owned by the local planning authority;
(g) transport facilities;
(h) water-supply;
(i) lighting;
(j) drainage, inclusive of sewage and of surface draining and sewage disposal.
(k) the allotment or reservation of land for streets, roads, squares, houses, buildings for religious and charitable purposes, open spaces, gardens, recreation grounds, schools, markets, shops, factories, hospitals, dispensaries, public buildings and public purposes of all kinds and defining and demarcating of, the reconstituted plots or the areas allotted to or reserved for, the above mentioned purposes;
(l) the construction of buildings generally and housing or rehousing of persons displaced by the detailed development plan;
(m)the demarcation of places or objects and buildings of archaeological or historical interest or natural scenic beauty or actually used for religious purposes or regarded by the public with veneration, or the protection of canal, tank or river sides, coastal areas and other places of natural or ______________ https://www.mhc.tn.gov.in/judis Page No 28 of 67 W.P.No.20006 of 2020 landscape beauty;
(n) the imposition of conditions and restrictions in regard to the character, density, architectural features and height of buildings, the building or control lines for roads, railway lines and power supply lines and the purposes to which buildings or specified areas may or may not be appropriated and the provision and maintenance of sufficient open spaces about buildings;
(o) the advance to the owners of land or buildings comprised within the detailed development plan upon such terms and conditions as may be provided by the said plan, of the whole or part of the amount required for the erection of buildings or for carrying out the works, alterations or improvements in accordance with the detailed development plan; and
(p) such other matters as may be prescribed.
42. The expression “development plan” has been defined in Section 2(15) of the Tamil Nadu Town and Country Planning Act, 1971.
It which reads as under:-
2. Definitions. – In this Act, unless the context otherwise requires:-
(1) ................
......................
(15) “development plan” means a plan for the development or re-development or improvement of the area within the jurisdiction of a planning authority and includes a regional plan, master plan, detailed development plan and a new town development plan prepared under the Act;
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43. Rule 35 of the Tamil Nadu Combined Development and Building Rules, 2019 which is currently in force deals with special rules for Non High Rise Buildings. Rule 8 of the Tamil Nadu Combined Development and Building Rules, 2019 deals with plan requirements.
Rule 8(1)(iii)(p) of the Tamil Nadu Combined Development and Building Rules, 2019 deals with the applications for planning permit or Building permit which shall be accompanied with provisions for water supply and sewage disposal system wherever required by the competent authority.
Rule 8(1)(iii) of the Tamil Nadu Combined Development and Building Rules, 2019 reads as under:-
8. Plan Requirements.— (1) The applications for planning permit or Building permit shall be accompanied as prescribed below:-
(i) ..................
(ii) .................
(iii) Site plan - drawn to a scale of not less than 1 in 500 for a site upto one hectare, and not less than 1 in 1000 for a site more than one hectare and shall show, —
a) the boundaries of the site;
b) the position of the site in relation to neighbouring street;
c) the extent and dimensions of the site affected by ______________ https://www.mhc.tn.gov.in/judis Page No 30 of 67 W.P.No.20006 of 2020 any street alignment or road widening or proposed new road or missing link as per the approved Master Plan or Detailed Development Plan or as notified by the Local body;
d) the name of the streets in which the building is proposed to be situated, if any;
e) all existing buildings standing on, over or under the site including service lines;
f) the position of the building and of all other buildings if any which the applicant intends to erect upon his site in relation to,— (1) the boundaries of the site and in case where the site has been partitioned, the boundaries of the portion owned by the applicant and also of the portions owned by others.
(2) all adjacent street, buildings with number of storied and height and premises within a distance of 15m of the site and of the contiguous land if any referred to in item (a) ; and (3) if there is no street within a distance of 15m of the site, the nearest existing street.
g) if the site is an unauthorised subdivision, then the details of the residuary plots or subdivisions including the details of the buildings or structures thereon;
h) the means of access from the street to the building, and to all other buildings, (if any) which the applicant intends to erect upon the site.
i) space to be left about the building to secure a free circulation of air, admission of light and access during emergency;
j) vehicle parking arrangements;
k) the width of the street if any in front and of the street if any at the side or rear of the building;
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l) the direction of north point relative to the plan of the buildings;
m) any physical features, such as wells, drains, etc;
n) alignments of the Low Tension or High Tension electric over head power lines or such underground cables if it lie within the site or within a distance of 10m. from the site, and the spatial location from the same to the building existing or proposed;
o) rain water harvesting provisions as specified by the competent authority within the plot;
p) provisions for water supply and sewage disposal system wherever required by the competent authority; and
q) such other particulars as may be prescribed by the competent authority.
44. The petitioner's layout now comes within the jurisdiction of Commissionerate of Coimbatore Municipal Corporation.
45. Rule 54 of the Tamil Nadu Combined Development and Building Rules, 2019 deals with sanitation requirements which reads as under:-
54. Sanitation requirements (1) General.—
a) There should be at least one water tap and arrangement for drain in the vicinity of each water closet or group of water closets in all the buildings.
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b) Each family dwelling unit shall have at least one water closet and one kitchen sink. A bath or shower shall also be installed to meet the basic requirements of sanitation and personal hygiene.
c) All other structures for human occupancy shall have adequate sanitary facilities, but in no case less than one WC and one other fixture for cleaning purposes.
d) All materials, fittings and sanitary appliances shall conform to the National Building Code.
(2) Sanitary fittings.—
a) For Residences.— i. Dwellings with individual conveniences shall have at least the following fitments:
(a) One bath room provided with a tap and a floor trap;
(b) One WC with flushing apparatus with an ablution tap
(c) One tap with a floor trap or a sink in kitchen or wash place.
ii. Where only one WC is provided in a dwelling, the bath and WC desirably be separated accommodated iii. Dwellings without individual conveniences shall have the following fitments:
(a) One water tap with flow trap desirably in each tenement
(b) One WC with flushing apparatus and an ablution tap for every two tenements
(c) One bath with water tap and flow trap for every two tenements.
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b) For Buildings Other than Residences.— The requirements for fitments for sanitation in the case of buildings other than residences shall be in accordance with the Tables given in the Annexure - X. Provided further that the respective toilets or sanitary arrangements shall be kept open for the ladies and children in restaurants, petrol pumps & hotels.
(3) Sewerage.—
(a) Taking into account the site conditions, land and building uses, and nature of wastes within the site, outlet connection (i.e. the availability of sewers or other outlets, sub-soil conditions etc.), sewage and waste water collection and disposal system for a building or a group of buildings or for a layout shall be designed and it shall conforming to National Building Code.
(b)Septic Tanks i. Where a septic tank is used for sewage disposal, the location, design and construction of the septic tank shall conform to requirements of the National Building Code and as per provisions in G.O.Ms. No 106, MAWS Dept., dated 01.09.2014 (operative guidelines for septage management for local bodies) ii. Location of the Septic Tanks and Subsurface Absorption System: A subsoil dispersion system should preferably not be closer than 18m from any source of drinking water, such as well, to mitigate the possibility of bacterial pollution of water supply.
______________ https://www.mhc.tn.gov.in/judis Page No 34 of 67 W.P.No.20006 of 2020 iii. Requirements.—
(a) Dimensions of septic tanks – Septic tanks shall have a minimum width of 75 cm, a minimum depth of 1m below the water level and a minimum liquid capacity of 1 cu.m. The length of tanks shall be 2 to 4 times the width;
(b) Septic tanks may be constructed of brickwork, stone masonry, concrete or other suitable materials as approved by the Authority;
(c) Under no circumstances shall effluent from a septic tank be allowed into an open channel, drain or water body without adequate treatment;
(d) The minimum nominal diameter of the pipe shall be 10cm. Further, at junctions of pipes in manholes, direction of flow from a branch connection shall not make an angle exceeding 45 degrees with the direction of flow in the main pipe;
(e) The gradients of land drains, under-drainage as well as the bottom of dispersion trenches and soak ways shall be between 1:300 and 1:400;
(f) Every septic tank shall be provided with ventilating pipe of at least 5 cm diameter. The top of the pipe shall be provided with a suitable cage of mosquito-proof wire mesh. The ventilating pipe shall extend to a height which would cause no smell nuisance to any building in the area. Generally, the ventilating pipe may extend to a height of about 2m, when the septic tank is at least 15m away from the nearest building and to a height of 2m above the top of the building when it is located closer than 15m.
(g) When the disposal of septic tank effluent is to a seepage pit, the seepage pit may be of any suitable shape with the least crosssectional ______________ https://www.mhc.tn.gov.in/judis Page No 35 of 67 W.P.No.20006 of 2020 dimension of 0.90m and not less than 1.00m in depth below the invert level of the inlet pipe. The pit may be lined with stone, brick or concrete blocks with dry open joints which should be backed with at least 7.5 cm of clean coarse aggregate. The lining above the inlet level should be finished with mortar. In the case of pits of large dimensions, the top portion may be narrowed to reduce the size of the RCC cover slabs. Where no lining is used, especially near trees, the entire pit should be filled with loose stones. A masonry ring may be constructed at the top of the pit to prevent damage by flooding of the pit by surface runoff. The inlet pipe may be taken down a depth of 0.90m from the top as an anti-
mosquito measure; and
(h) When the disposal of the septic tank effluent is to a dispersion trench, the dispersion trench shall be 0.50m to 1.00m deep and 0.30m to 1.00m wide excavated to a slight gradient and shall be provided with 150mm to 250mm of washed gravel or crushed stones. Open jointed pipes placed inside the trench shall be made of unglazed earthenware clay or concrete and shall have a minimum internal diameter of 7.5cm to 10cm. Each dispersion trench shall not be longer than 30m and trenches shall not be placed closer than 1.8m.
(4) Separation of bath and wash basin water and reuse.— All buildings shall be provided with separate pipelines; one for collecting waste water from bath and wash basins and the other for connecting the toilets. The wastewater from the toilets alone shall be connected to the street sewer. The wastewater from the bath and wash basins shall be disposed off as here ______________ https://www.mhc.tn.gov.in/judis Page No 36 of 67 W.P.No.20006 of 2020 under. – Each building shall have a separate downward pipeline to collect waste water from bath and wash basins and the collected waste water shall be treated adequately by organic or mechanical recycling and taken to a sump for onward pumping to the exclusive overhead tank or to a separate compartment of over head tank for exclusive use of toilet flushing through cisterns. The excess wastewater not reused for toilet flushing, shall be used for gardening or rain water harvesting structure within the site.
Explanation.— For the purposes of these rules in regard to recycling systems are concerned, any other modifications, additional structures, alternative designs furnished by the applicant can be considered for approval, if it conforms to recycling concept to the satisfaction of the competent authority 'for building approval. The above stated waste water reuse arrangement is mandatory for High Rise buildings; optional and preferable for non- High Rise buildings.
46. Thus, a layout should take into account the site conditions, land and building uses, and nature of wastes within the site, outlet connection (i.e. the availability of sewers or other outlets, sub-soil conditions etc.), sewage and waste water collection and disposal system for a building or a group of buildings or for a layout shall be designed and it shall conforming to National Building Code.
47. The decision of the Hon’ble Supreme Court which has been ______________ https://www.mhc.tn.gov.in/judis Page No 37 of 67 W.P.No.20006 of 2020 cited by the learned counsel for the petitioner has dealt with the change of use of common area gifted to the local authority / local body for construction of new buildings / residential units or for conversion of area earmarked for park and for road. On the other hand, the sewage pumping station is being installed in the common are gifted to the panchayat which has now merged with and come within the purview of the respondent Corporation.
48. The Atal Mission for Rejuvenation and Urban Transformation (AMRUT) Scheme being implemented is for larger benefit to the public including the members of the petitioner Association who are residing in the Sai Nagar Sri Sathayanarayan Nagar and Fathima Ummer Avenue.
The decisions rendered in the context of conversion of use of land other than the public purpose cannot be applied to the facts of the present case.
49. As far as the decision of the Full Bench of this Court in P.Karthikeyan and Others Vs. Commissioner, Coimbatore Corporation, Coimbatore and others, 2021 SCC OnLine Mad 5488 is concerned, the Full Bench has answered the issue in the affirmative as is ______________ https://www.mhc.tn.gov.in/judis Page No 38 of 67 W.P.No.20006 of 2020 evident from a reading of the decisions arrived by the Full Bench.
50. The question that fell for consideration before the Full Bench of this Court reads as under:-
“Whether the layout plan finalised as per the provisions of the Tamil Nadu Town and Country Planning Act, 1971, read with the Development Control Rules framed thereunder, permits certain permissible deviations therefrom in larger public interest or not?”
51. Though the scope of reference by the Full Bench in P.Karthikeyan and others Vs. Commissioner, Coimbatore Corporation, Coimbatore, 2021 SCC OnLine Mad 5488 was in the context of Tamil Nadu Town and Country Planning Act, 1971 read with Development Control Rules framed thereunder. The Full Bench has examined the scope of the Solid Waste Management Rules, 2016 framed under Sections 3, 6 and 25 of the Environment (Protection) Act, 1986.
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52. The Full Bench has considered all the decisions rendered in the context of Town and Country Planning Act, 1971 of various States and that of the Tamil Nadu though the Development Control Rules were in force prior to the implementation of the Tamil Nadu Combined Development and Building Rules, 2019.
53. The Full Bench has also considered the impact of Tamil Nadu Parks, Play-Fields and Open Spaces (Prevention and Regulation) Act, 1959. When these enactments were enacted, the question of integrated disposal of sewage was not in contemplation. Urban space has been increased and there is necessity for a proper waste management which includes a safe and proper disposal of sewage.
54. As far as the other wastes such as hazardous waste, bio medical waste, solid waste, plastic waste and e-waste are concerned, all the Rules have been framed under the provisions of the Environment (Protection) Act, 1986 read with the Water Act and Air Act.
55. In paragraph No.210 in P.Karthikeyan case referred to supra, ______________ https://www.mhc.tn.gov.in/judis Page No 40 of 67 W.P.No.20006 of 2020 the Full Bench has observed as follows:-
210. As far as the issue on hand is concerned, the expression “Development” has been loosely used, which in the opinion of this Bench, may not be applicable at all. At the risk of repetition, what is proposed in a small portion of the park area, is only a location of MCC as a part of amenities to be provided to the people in the neighbourhood for their own benefit and enjoyment of garbage and litter-free atmosphere and clean environment. It is concept development in the modern era and it can never be called as “Development” in terms of the provisions of the Act, 1971 or the Combined Development Rules, 2019. In the opinion of this Court, the arguments advanced with reference to those provisions amounted to barking up the wrong tree, as the entire focus ought to have centered on the implementation of SWM Rules, 2016.
56. In paragraph Nos.218 & 227 in P.Karthikeyan case referred to supra, the Full Bench has held as follows:-
218. In the above ruling, the Hon'ble Supreme Court of India has also made observations like “public interest or general good or social betterment have, no doubt, priority over private or individual interest”, but, it must not be a pretext to justify the arbitrary or illegal exercise of power. The Court also recognised existence of legislative mandate enabling the authority to alter any scheme.
______________ https://www.mhc.tn.gov.in/judis Page No 41 of 67 W.P.No.20006 of 2020 However, the Apex Court had factually found in that case that the mandatory procedure contemplated in the governing rules had not been followed, adhered to and ultimately, held that the action was ultra vires on the ground, the exercise of the discretion of the authority was improper. There, the fact was that permission was granted to establish a Nursing Home in the park area. In that context, the Hon'ble Supreme Court has held that conversion of a park into a private Nursing Home amounted to being oblivious of true character of the two utilities, namely park and private Nursing Home. The Hon'ble Supreme Court nevertheless recognised the State objectives in economic and social planning and the same to be respected by the Courts.
----
227. A reading of the counter affidavit filed on behalf of the Coimbatore Corporation would show that construction of MCC is only in a minuscule portion in the public area earmarked for a park or recreational purpose, in the range of 10% of the total open area available. The SWM Rules, 2016, has clearly spelt out how scientifically the waste disposal at all levels, would be undertaken. While identifying the site, several stakeholders are to be made parties to the decision making process. Every provision of the Rules has been carefully drafted and designed leaving no room for any lacuna or shortcomings in the implementation. The Rules outlined the duties of various officials and State agencies from the stage of preparation of State policies, strategy and its implementation at the ground level. The Rules exhaustively address every minute part of the implementation process with the ultimate view of ensuring zero waste going to landfill. The types of waste have been identified and ______________ https://www.mhc.tn.gov.in/judis Page No 42 of 67 W.P.No.20006 of 2020 the remedial action delineated in detail in the Rules.
57. The Full Bench in P.Karthikeyan case referred to supra, has held as under:-
240. When every citizen is a waste generator, he/she cannot expect his/her waste to go somewhere else. As said by American critic of consumerism and a proponent of sustainability concept, Ms. Annie Leonard “There is no such thing away when you throw something away, it must go somewhere” and he/she should take responsibility towards its disposal. The right to disown the waste generated by every citizen is no more available and such luxury is not to be made available any more in this era. No citizen ought to be allowed to stick his or her head into the sand like an ostrich and feign he or she has no stake in the solid waste management. Protecting and improving environment is one of the fundamental duties as contained in Article 51-A[g] of the Directive Principles of State Policy. “Solid Wastes are the discarded left over of our advanced consumer society” said the former President of the USA, Mr.Jimmy Carter. Disposal of the left over of every consumer that is every citizen, thus become the responsibility and duty of every citizen.
241. It is needless to mention that decentralisation of the processing of waste disposal is a civic imperative due to alarming shrinkage of urban space and also growing density of population in urban and semi urban areas. It is therefore, the bounden responsibility of every citizen to ensure all ______________ https://www.mhc.tn.gov.in/judis Page No 43 of 67 W.P.No.20006 of 2020 around clean environment which is possible and achievable only when the solid waste and the garbage disposal is handled scientifically at micro level in every neighbourhood.
242. It cannot be the case of the citizens or the people that no matter what the development going all around them and yet, no waste disposal facility to be made available near to them. Such attitude ought to change with the times we live in and the whole hearted participation of all the citizens will only make the policy implementation successful by a large measure.
243. By no stretch of legal standard, the location of MCC can be be called “development” within the meaning of the scheme of the Act, 1971 read with the Combined Development Rules, 2019.
The location of MCC is an idea, a modern concept. Therefore, decrying implementation of the modern concept of waste management as a Development as if the same would amount to reclassification of the land for a different user, is a conservative submission oblivious to the realities of the necessity of having decentralised waste disposal facilities to stay even with the modern conceptual development.
244. Moreover, there cannot be any selective enjoyment by the people. The people who have been benefited over the years by the rapid strides made on the economic fronts and enjoying the fruits of its boom and progress, resulting in relocation of people in the urban and semi urban areas have a collective responsibility and duty towards addressing the concerns of the civic problems. In fact, the root word of ‘civic’ is ‘civis’ a Latin word, meaning citizen. Hence, there is no gainsaying that the solid waste ______________ https://www.mhc.tn.gov.in/judis Page No 44 of 67 W.P.No.20006 of 2020 management is not the citizens’ concern. As observed by the learned Division Bench in T.G. Rudhramurthi's case, opposition to the implementation of the SWM Rules, 2016, amounted to disservice to the community at large. A narrow and provisional interest may not be allowed to stymie the implementation of the visionary blueprint tackling solid waste disposal holistically with citizens’ participation.
245. The above observations are not to be taken to be little or discredit the citizens’ right to have healthy environment or a lung space for enjoyment of free and unpolluted air in ever dwindling urban space. The public interest of enjoyment of the open recreational area does not stand relegated if an additional amenity is made available by locating decentralised waste disposal facilities. In the face of rampant development all around consuming the land area in the urban and semi urban space it has become the order of the day for the civic management to position waste disposal facilities nearer to the place of waste generation towards achieving the desired objective of SWM Rules, 2016, i.e., zero waste going to landfill. What is, therefore being implemented is only in the larger public interest without affecting the existing public interest and this Court does not think that opposition to such location can be considered as legitimate and legally acceptable.
246. Finally, when the rules itself have been framed under the Environment [Protection] Act, 1986, the underlying principle of the rules is mandated to provide better environment to the people at large. Therefore, the premise on which the opposition is edified has no foundational merit and ______________ https://www.mhc.tn.gov.in/judis Page No 45 of 67 W.P.No.20006 of 2020 therefore, the same is liable to be rejected.
247. The decisions of the Hon'ble Supreme Court and all other decisions did not have opportunities to consider the visionary concept of the SWM Rules, 2016. This Bench in its quest for an answer has to tread on the uncharted and virgin judicial terrain in the realm of policy implementation of Solid Waste Management. In the considered view of the Bench, the implementation of the SWM Rules, 2016, is not repugnant to any law or rules in force and it also is not affecting any public interest or any fundamental right of the citizens. On the other hand, the implementation of the SWM Rules, 2016 is to be read as a part of enforcement of the fundamental rights and duties as well, enshrined in Article 21 of the Constitution of India and in terms of Articles, 47, 48-A and Article 51-A[g] of the Directive Principles of State Policy. The right to have a free, clean environment include right to live in a clean neighbourhood, without garbage or solid waste. The policy implementation of solid waste management is thus oriented towards achieving the above constitutional goal, aimed at promoting larger than any other public interest to stay almost with the global outlook on the subject.
248. Therefore, location of MCC or Compost Yard in a park or open recreational space, can be held as a permissible deviation if it could be called as a deviation in the first place and the objections for its location, therefore have to be rejected, as the same are completely out of tune with the contemporary national thinking.
249. As regards the upkeep and maintenance of the compost yard is concerned, constitution of ______________ https://www.mhc.tn.gov.in/judis Page No 46 of 67 W.P.No.20006 of 2020 Advisory Committee is provided under Rule 23 and also the duties have been specified under various rule provision. The Rules also mandate the local authorities and village panchayats of census towns and urban agglomeration to frame bye-laws incorporating the same within one year from the date of the notification. This Bench has not been informed whether as on date, any bye-laws have been framed as per the SWM Rules, 2016 or not. In any event, as we expressed our reservation too, in the regular upkeep and foolproof maintenance of the Compost Yard, on the ground, we therefore, deem it fit to issue certain directions to the authorities for proper implementation of the SWM Rules, 2016, in the letter and spirit as well.
DIRECTIONS:—
250. Accordingly, the following directions are given to the State Government:— (1) The Government is directed to form a Committee at the State, District, Municipal and Panchayat levels with the officials concerned at each level, monitoring the implementation of the SWM Rules, 2016. (2) The Committees, apart from chosen officials, may also include a concerned member, from the neighborhood wherever such MCCs or the Compost Yard is to be located.
(3) The Committees are responsible for monitoring the upkeep and maintenance of MCCs and the Compost Yards and any issues relating to improper upkeep and poor maintenance of MCCs, or Compost Yards, the Committees should be empowered to intervene and take immediate remedial action.
______________ https://www.mhc.tn.gov.in/judis Page No 47 of 67 W.P.No.20006 of 2020 (4) Once the site for location of a MCC or other Compost Yard is identified and set up, thereafter, the objections regarding the proper maintenance of the park/recreational area from being spoiled by the operation of MCC, if raised, shall be addressed, with all earnestness.
(5) The officials who are incharge of MCCs and Compost Yards shall ensure that the disposal facility does not fall into disuse, resulting in the place becoming a dumping yard of garbage, leading to the degradation of the entire open space toxically detrimental to the citizens enjoyment of clean environment. (6) Any negligence of officials towards proper upkeep and maintenance of MCC or Compost Yards, stern disciplinary action to be initiated promptly against the officials concerned and if negligence is proved, appropriate punishment to be imposed on them.
(7) The Government is directed to issue a comprehensive Circular incorporating all necessary guidelines for the State/District/Panchayat Committees in implementation of the various facets of the SWM Rules, 2016, ensuring that the guidelines are strictly followed and implemented on the ground.
251. This Bench, in the conspectus of the above judicial discourse, answers the reference as follows.
252. Location of MCCs or the Compost Yard in the park/play field cannot be construed as Development in terms of the scheme of the Act, 1971 or the Combined Development Rules, 2019, and ______________ https://www.mhc.tn.gov.in/judis Page No 48 of 67 W.P.No.20006 of 2020 therefore, any prohibition contemplated in the statutory rules and regulations does not apply to the implementation of the concept of solid waste management as envisaged in the SWM Rules, 2016.
253. The SWM Rules, 2016, are framed under the Central enactment, viz., the Environment [Protection] Act, 1986. The Rules thus prevail over the State laws to the extent of the implementation of the policies outlined towards solid waste management. Even otherwise, this Court does not see any palpable repugnancy between the SWM Rules, 2016 and the State laws.
CONCLUSION:—
254. In the exact words of reference, implementation of SWM Rules, 2016, fall within the “permissible deviation” in larger public interest even in terms of the Tamil Nadu Town and Country Planning Act, 1971, read with the Development Control Rules framed thereunder.
255. The reference is answered accordingly.
58. Normally, “public open space” reserved in a Master Plan cannot be used for any developmental activities. There cannot be any construction unless authorised. It is intended to be used only for the purpose specified therein.
59. As per Section 17 of the Tamil Nadu Town and Country Planning Act, 1971, the Local Planning Authority may prepare and ______________ https://www.mhc.tn.gov.in/judis Page No 49 of 67 W.P.No.20006 of 2020 submit to the Government, a Master Plan for a local planning area or any part of it and such other area or areas contiguous or adjacent to such local planning area, as the Government may direct to be included in the Master Plan.
60. In the Master Plan, the Local Planning Authority may provide for open space or amenities. The expression “amenities” has been defined in Section 2(3) of the Tamil Nadu Town and Country Planning Act, 1971.
61. It includes “streets”, “open spaces”, “parks”, “recreational grounds”, “play-grounds”, “water and electric supply”, “street lighting”, “sewerage”, “drainage”, “public works” and “other utilities”, “services and conveniences”.
62. Section 2(34) of the Tamil Nadu Town and Country Planning Act, 1971 defines the expression “public open space”. The expression “public open space” as defined in Section 2(34) of the Tamil Nadu Town and Country Planning Act, 1971 means any land whether enclosed or not belonging to the Central or any State Government or any local authority ______________ https://www.mhc.tn.gov.in/judis Page No 50 of 67 W.P.No.20006 of 2020 or anybody corporate, owned or controlled by the Central or any State Government on which there is no building or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is used for purpose of recreation, air or light.
63. Almost a similar expression “open space” is used in Section 2(c) of the Tamil Nadu Parks, Play-Fields And Open Spaces (Preservation and Regulation) Act, 1959 (26 of 1959).
64. Under Section 3(1) of the Tamil Nadu Parks, Play-Fields And Open Spaces (Preservation and Regulation) Act, 1959, the Executive Authority of every local authority shall, not later than six months from the date on which the Act comes into force in the area within the jurisdiction of the local authority, prepare and submit for the approval of the Government a correct and complete list with plans and maps of all the parks, play-fields and open spaces in the area aforesaid containing such particulars as may be prescribed.
65. Under 3(2) of the Tamil Nadu Parks, Play-Fields And Open ______________ https://www.mhc.tn.gov.in/judis Page No 51 of 67 W.P.No.20006 of 2020 Spaces (Preservation and Regulation) Act, 1959, the Government shall, as soon as may be, after the receipt of the list and other documents referred to in sub-section (1), publish the list in the prescribed manner and such publication shall state at what place and time the maps, plans, and documents aforesaid will be available to the public for inspection.
66. Section 4 of the Tamil Nadu Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1959 contemplates approval of lists by Government. It reads as under:-
Section 4 : Approval of lists by Government
1. Any person interested, may submit his objections or suggestions in writing in respect of anything contained in, or relating to, the list, to the Government, within three months from the date of the publication under sub-section (2) of section 3.
2. The Government may, after considering the objections and suggestions, if any, and making such inquiry as they think fit approve the list with or without modifications.
3. The approval of the Government to a list under sub-section (2) shall be published in the prescribed manner and such publication shall contain the list and shall also state at what place and time particulars relating to the matters mentioned in the list will be available to the public for inspection.
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67. The respective definitions in Section 2(c) of the Tamil Nadu Parks, Play-Fields And Open Spaces (Preservation and Regulation) Act, 1959 and in Section 2(34) of the Tamil Nadu Town and Country Planning Act, 1971 are reproduced below:-
Section 2(c) of the Tamil Nadu Section 2(34) of the Tamil Nadu Parks, Play-Fields And Open Town and Country Planning Act, Spaces (Preservation and 1971.
Regulation) Act, 1959 "open space" means any land, “public open space” means any whether enclosed or not, land whether enclosed or not belonging to the Government or belonging to the Central or any any local authority, on which State Government or any local there are no buildings or of which authority or anybody corporate, not more than one-twentieth part owned or controlled by the Central is covered with buildings, and the or any State Government on which whole or the remainder of there is no building or of which not which is used for purposes of more than one-twentieth part is recreation, air or light; covered with buildings, and the whole or the remainder of which is used for purpose of recreation, air or light;
68. Section 2 (a) , (d) , (e) of the Tamil Nadu Parks, Play-Fields And Open Spaces (Preservation and Regulation) Act,1959 (26 of 1959) read as under:-
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(a)"executive authority" means the Commissioner, chairman, president, executive officer or other functionary of the local authority concerned who is vested with general executive powers under any of the Acts mentioned in the Schedule;
(b) ............
(c) ............
(d)"park" means a piece of land on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden with trees, plants or flower beds or as a lawn or as a meadow and maintained as a place for the resort of the public for recreation, air or light;
(e)"play-field" means a piece of land adapted for the purposes of play, game or sport and used by schools or colleges or clubs.
69. As per Section 5 of the Tamil Nadu Parks, Play-Fields And Open Spaces (Preservation and Regulation) Act, 1959, the Government may, at any time, either suo motu or at the instance of the local authority concerned or of any person interested, vary or revoke a list published under Section 4 of the Tamil Nadu Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1959.
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70. However, before making any such variation or revocation, the Government shall publish in the prescribed manner a draft of such variation or revocation together with a notice specifying a date on or after which such draft will be taken into consideration, and shall consider any objection or suggestion which may be received in respect of such draft from the local authority or any person interested before the date so specified.
71. Section 5 of the Tamil Nadu Parks, Play-Fields And Open Spaces (Preservation and Regulation) Act, 1959 reads as under:-
Section 5 : Variation or revocation of list
1. The Government may, at any time, either suo motu or at the instance of the local authority concerned or of any person interested, vary or revoke a list published under section 4.
2. Before making any such variation or revocation, the Government shall publish in the prescribed manner a draft of such variation or revocation together with a notice specifying a date on or after which such draft will be taken into consideration, and shall consider any objection or suggestion which may be received in respect of such draft from the local authority or any person ______________ https://www.mhc.tn.gov.in/judis Page No 55 of 67 W.P.No.20006 of 2020 interested before the date so specified.
3. (a) The Government shall once in every five years review the approved lists of parks, play-fields and open spaces and shall cause revised lists to be prepared.
(b) Whenever such a general revision of approved lists has been completed, the Government shall publish in the prescribed manner the revised lists and such publication shall state that objections and suggestions will be considered if they reach the Government within a period of one month from the date of such publication.
4. The Government shall, after considering the objections and suggestions, if any, received within the period referred to in sub-section (3) publish the revised lists in the prescribed manner and the revision shall take effect on such publication.
72. Either side has not produced any documents to substantiate that the open space in the layout was notified under the provisions of the Tamil Nadu Parks, Play-Fields And Open Spaces (Preservation and Regulation) Act, 1959.
73. However, it is evident that ample power is vested with the respective Central & State Governments and Local Authority under the ______________ https://www.mhc.tn.gov.in/judis Page No 56 of 67 W.P.No.20006 of 2020 Act, for variation or revocation of lists with plans and maps of parks and other open spaces.
74. The subject open space land in the layout was gifted by the developer to the “local authority” as a condition for grant of layout approval. The open space was used as a park or play area by the residents of Sathya Sai Nagar Sri Sathyanarayan Nagar and Fathima Ummer Avenue, Podanur, Coimbatore for recreation.
75. In R.Chandran Vs. State of Tamil Nadu rep.by its Secretary, Department of Municipal Administration & Water Supply, Fort St.George, Chennai 600 009 and another, 2010 (4) CTC 737, the Hon'ble Division Bench of this Court held that the playground and/or park could not be brought within the definition of public “open space” in Tamil Nadu Parks, Play-Fields And Open Spaces (Preservation and Regulation) Act, 1959. The said decision however did not deal with Sections 47 to 49 of the Tamil Nadu Town and Country Planning Act, 1971 at length.
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76. Under Section 20 of the Tamil Nadu Town and Country Planning Act, 1971 as referred to supra, a detailed development plan prepared by the Local Planning Authority under Section 21 and declared under Section 19 may provide for disposal by sale, exchange, lease or otherwise of the land acquired or owned by the Local Planning Authority.
77. Under Sections 47, 47A, 48 and 49 of the Tamil Nadu Town and Country Planning Act, 1971, there is an exception in favour of the “State Government”, the “Central Government” and the “Local Authority”. Sections 47, 47A, 48 and 49 of the Tamil Nadu Town and Country Planning Act, 1971 carves out an exception.
78. The “State Government”, the “Central Government” and the “Local Authority”, as the case may be, are excluded from the purview of the restriction under Sections 47, 47A, 48 and 49 of the Tamil Nadu Town and Country Planning Act, 1971 for using or for carrying out development on any land being part of any development plan in that area otherwise than in conformity with such development plan and from ______________ https://www.mhc.tn.gov.in/judis Page No 58 of 67 W.P.No.20006 of 2020 obtaining written permission of the appropriate planning authority. The expression used is “no person other than any “State Government” or the “Central Government” or any “local authority””.
79. Therefore, if the respondent is a Central Government, or a State Government or a Local Authority within the meaning of Tamil Nadu Town and Country Planning Act, 1971, it can use the land gifted for “public purpose” for any other “public purpose”.
80. If the respondent is not a Central Government, or a State Government or a Local Authority within the meaning of Tamil Nadu Town and Country Planning Act, 1971, before implementing the project, the respondent was to be strictly bound by the restriction under these provisions of the Tamil Nadu Town and Country Planning Act, 1971.
81. The expression “local authority” is defined in Section 2(23) of the Tamil Nadu Town and Country Planning Act, 1971. It reads as follows:-
______________ https://www.mhc.tn.gov.in/judis Page No 59 of 67 W.P.No.20006 of 2020 Section 2(23): .“local authority” means- i. the Municipal Corporation of Chennai or of Madurai; or ii. a Municipal Council constituted under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920); or iii. a Township Committee constituted under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920), or the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958) or under any other law for the time being in force, or the Mettur Township Act, 1940 (Tamil Nadu Act XI of 1940), or the Courtallam Township Act, 1954 (Tamil Nadu Act XVI of 1954), or, the Bhavanisagar Township Act, 1954 (Tamil Naddu Act XXV of 1954); or iv. a Panchayat Union Council or a Panchayat constituted under the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958);
82. In Section 3(31) of the General Clauses of the Act, 1897, there is a much broad definition of the expression “local authority”. It reads as under:-
Section 2(31):- “local authority” shall mean a municipal committee, district board, body of port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund;
83. The respondent is a “Local Authority” within the meaning of Section 3(31) of the General Clauses of the Act, 1897.
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84. The respondent is neither a “Central Government” nor a “Local Authority” with the meaning of Tamil Nadu Town and Country Planning Act, 1971. To be a “local authority”, the respondent should satisfy the above definition of a “local authority” as defined in Section 2(23) of the Tamil Nadu Town and Country Planning Act, 1971.
85. The respondent is the Commissioner of the Coimbatore City Municipal Corporation. The office of the Commissioner in the City Municipal Corporation is an office of the State Government.
86. Under the scheme of the Constitution of India, the executive powers of State is vested with the Governor. It is exercised by the Governor either directly or through officers subordinate to him in accordance with the Constitution. The respondent being an officer of the “State Government” represents State Government under Article 154 of the Constitution of India.
87. The respondent being an officer of the State is therefore not ______________ https://www.mhc.tn.gov.in/judis Page No 61 of 67 W.P.No.20006 of 2020 constrained by the restrictions contained in Sections 47 to 49 of the Tamil Nadu Town and Country Planning Act, 1971. Under these provisions, the State Government, Central Government and the Local Body are immune for the restriction.
88. Further, under Section 58 of the Tamil Nadu Town and Country Planning Act, 1971, it was however compulsory that when any Department of any State Government or the Central Government or any local authority intends to carry out development of any land or building, the officer in charge thereof to inform in writing to the planning authority concerned regarding the intention giving full particulars thereof thirty days before undertaking such development, if their construction is not in conformity with the provisions of the development plan and that they are compelled to modify their proposal in accordance with the instruction of the planning authority.
89. Section 58 of the Tamil Nadu Town and Country Planning Act, 1971 reads as under:-
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(1) When any department of any State Government or the Central Government or any local authority intends to carry out development of any land or building, the officer-in-charge thereof shall inform, in writing, the planning authority concerned the intention to do so, giving full particulars thereof, and accompanied by such plans and documents atleast thirty days before undertaking such development:
Provided that in case where any local authority is the local planning authority under this Act, it shall inform the fact of any such proposed development to the regional planning authority concerned within whose jurisdiction such local authority is situated.
(2) Where a planning authority concerned or the regional planning authority concerned, as the case may be, raise(d) any objection to the proposed development on the ground that the development is not in conformity with the provisions of any development plan under preparation or for any other material consideration, the officer of the State Government, Central Government or any local authority, as the case may be shall-
i. either make necessary modifications in the proposals for development to meet the objections raised by the planning authority concerned, or ii. submit the proposals for development together with the objections raised by the planning authority concerned to the Government for ______________ https://www.mhc.tn.gov.in/judis Page No 63 of 67 W.P.No.20006 of 2020 decision.
(2) The Government, on receipt of the proposal for development together with the objections of the planning authority concerned shall, in consultation with the Director, either approve the proposals with or without modifications or direct the officer to make such modifications in the proposals as they consider necessary in the circumstances and the officer concerned shall be bound to make such modifications as proposed by the Government.
90. The Local Planning Area (LPA) was notified and was constituted in Coimbatore under Town and Country Planning Act, 1971 (T&CP Act, 1971) in 1974. The LPA is headed by the Chairman & District Collector and a Committee nominated by the Government and the Member-Secretary, who heads the executive side. It is responsible for the enforcement of Town and Country Planning Act & Rules provisions.
Coimbatore City Municipal Corporation has a limited role to coordinate with Local Planning Area and in the enforcement of planning laws and rules.
91. Considering the fact that there are no restrictions on the respondent under Sections 47 & 48 of the Tamil Nadu Town and Country Planning Act, 1971, the petitioner cannot have any objection over the ______________ https://www.mhc.tn.gov.in/judis Page No 64 of 67 W.P.No.20006 of 2020 construction put up by the respondent under the Atal Mission for Rejuvenation and Urban Transformation (AMRUT). The Modernization for effective and safe management and disposal of sewage cannot be stalled particularly when Coimbatore City has been specifically identified as a smart city.
92. The provision of Sections 47 to 49 of the Tamil Nadu Town and Country Planning Act, 1971 have over a riding effect as the provisions of the Tamil Nadu Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act,1959. It has to be construed to have been subsumed into the provisions of the Tamil Nadu Town and Country Planning Act,1971.
93. Therefore, there is no impediment on the respondent under the provisions of the Tamil Nadu Town and Country Planning Act, 1971 from implementing Atal Mission for Rejuvenation and Urban Transformation (AMRUT).
94. In my view, there is no case made out by the petitioner in this ______________ https://www.mhc.tn.gov.in/judis Page No 65 of 67 W.P.No.20006 of 2020 Writ Petition in stalling the project under implementation under the Atal Mission for Rejuvenation and Urban Transformation (AMRUT).
95. Therefore, this Writ Petition is liable to be dismissed and is accordingly dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
22.09.2022 Internet : Yes/No Index : Yes / No Jen To The Commissioner, Corporation of Coimbatore, Coimbatore, Coimbatore District.
C.SARAVANAN, J.
Jen ______________ https://www.mhc.tn.gov.in/judis Page No 66 of 67 W.P.No.20006 of 2020 Pre-Delivery Order in W.P.No.20006 of 2020 and W.M.P.No.24684 of 2020 22.09.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 67 of 67