Dismissed

P.Vasantha v. The Commissioner

Madras HC5 Dec 2022WP/27153/2021

Case brief

AI extract

What is this about?

This petitioner challenged the conversion of a park area into an underground sewage pumping station. The court dismissed the writ petition, permitting the construction on the condition that the pumping station be designed to prevent pollution, compounded, and that the remaining park area be developed with proper facilities for public use.

What did the court decide?

Disallowed the petitioner's prayer to forbear the conversion; permitted respondents to construct the pumping station on 4583 sq.ft. provided specific conditions regarding pollution prevention and deve

P.Vasantha Vs The Commissioner — Pension and Retirement Benefits | Madras HC (2022)

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WP.No.27153 of 2021

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 05.01.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

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WP.No.27153 of 2021 & WMP.No.28641 of 2021

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P.Vasantha ... Petitioner

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The Commissioner, Tindivanam Muncipality Office, Tindivanam – 605 001.

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The Managing Director, TWAD Board, Kamarajar Sali, Chepauk, Chennai – 600 005.

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[R2 Cause title amended vide Order dated

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26.07.2022 made in W.P.No.27153 by CSNJ]

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The Sub Collector,

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Sub Collector Office, Tindivanam – 604 302.

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The District Collector, The District Collector Office, Villupuram District, Villupuram – 605 602.

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The Director, Municipal Administration, Chepauk, Chennai – 600 005.

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https://www.mhc.tn.gov.in/judis

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1/22

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WP.No.27153 of 2021

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6. Principal Secretary,

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Secretariat, George Town, Chennai – 600 009.

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The Town Planning Officer, Tindivanam Municpality, Municipal Office,Eswaran Koil Street, Tindivanam – 604 001. ... Respondents

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Prayer:- Writ Petition filed under the Article 226 of Constitution of India, to issue a Writ of Mandamus to forbear the respondents from converting the Park and Playground in the approved layout “Doctor Wahab Nagar” in S.No.96/1B, 2, 3, 4, 5, 6, 8, 10, 11, 12, 13B, 14, 24/1C2, 97/18, 27 in Tindivanam Town and S.R.O.

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For Petitioner : Mr.A.K.Kumarasamy, Senior Counsel for Mr.S.Kaithamalai Kumaran For Respondents : Mr.P.Srinivas – R1 Ms.Y.Kavitha – R2 Mr.S.Rajesh, Government Advocate – R3 to R7

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ORDER

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This writ petition has been filed to forbear the respondents from

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converting the Park and Playground in the approved layout “Doctor Wahab Nagar” in S.No.96/1B, 2, 3, 4, 5, 6, 8, 10, 11, 12, 13B, 14, 24/1C2, 97/18, 27 in Tindivanam Town and S.R.O.

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It is the case of the petitioner that the petitioner is owner of the Plot No.12 in Doctor Wahab Nagar, Kaveripakkam Village, Tinivanam Taluk. A total extent of land in Wahab Nagar is 3.09 acres in which an extent of 13509 square feet was reserved for park and playground. The lay out plan with 33 plots, public roads and the park and playground with an extent of 13509 square feet in Wahab Nagar has been approved by the fifth respondent on 19.09.1986. The area ear earmarked for park and playground has been in existence for the past 35 years and the same has been beneficially enjoyed by the residents of Wahab Nagar as well the general public. However, the first respondent has not been maintaining the park and play ground. When the matter stood thus, recently, the first and second respondents have fixed a banner in the park and playground stating that the land is being used for Under Ground Drainage Scheme much to the surprise of the residents of Wahab Nagar. The first respondent has acted unilaterally without obtaining permission from the respondents 4, 5 and 6. The objection of the petitioners and other residents have not been considered. The residents of Wahab Nagar and the general public will be put into serious hardship if underground drainage scheme is implemented in park and playground. The act of the respondents in encroaching upon

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the land earmarked as open space reserved for public purpose is in complete violation of law. It is further stated that implementation of under ground drainage scheme will be detriment to the very purpose it was reserved and the residents of Wahab Nagar and general public will be put into serious hardship and converting the park and playground may cause imminent threat to the residents. Hence, this Writ Petition has been filed for the aforesaid relief.

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3.1 The first respondent has filed a counter stating that the work of establishment of the underground drainage system for Tinidivanam Town has been taken up by the issue of G.O. [2D] No.2, dated 03.01.2020 issued by Municipal Administration and Water Supply Department. The work is for the estimated value of Rs.268 crores to be executed by the Tamil Nadu Water and Drainage Board. The tender for the establishment of underground drainage network along with the required Pumping stations and lifting stations and conveying the sewage to the Treatment Plat at Salavathi Road was approved and the Tenders were floated and the work order has been issued to M/s.Eco Protection Engineers Pvt. Ltd. The work Order was issued on 04.11.2020 and work has been going on from then.

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The UGD network involves the laying of 165.889 Kms of underground sewage lines, 6770 number of manholes, 6 sub pumping stations, 3 lifting stations, 15.26 kilometers of pumping main pipes and establishment of the sequencing batch reactor [SBR] Sewage Treatment Plant of the capacity 11.44 MLD. Total value of the said work has been estimated as above at Rs.268 crores, the works have been going on since November 2020 and the same has been carried out as per the design parameters that are already studied and designed by the Expert appointed for this purpose.

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3.2 It is further stated in the counter filed by the first respondent that

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as per the design, the sewage lines are laid from the individual streets, where the house connections are given and lead to the nearest pumping or lifting stations and thereafter, the collected sewage is pumped out through the Pumping main lines to the STP which is situated in the lands belonging to the Municipality. As per the requirements of the UGD network, the clusters of streets based on topography and gradient are chosen as per the best efficient design and the pumping and lifting stations are placed in the available locations so that the sewage can be pumped out and sent for treatment in the STP. In the case of the Layout by name Wahab Nagar, the

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said layout is not just one single layout, it rather consists of 2 parts and separate approvals have been given. The total extent of Park site in the particular layout which is referred to by the petitioner is to the extent of 13509 square feet as set out by the petitioner. There is another layout which is situated right adjoining the said layout by the same layout promoter and by the same name where there is another park site to an extent of 404 square meters and another. The said sites have not been in any manner developed as parks or play fields till date by the promoters of the layouts.

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3.3 It is further stated in the counter that the respondent has in fact as part of the UGD development works have undertaken the development of the said park sites into play facilities and walking tracks with planting of greenery and seating facilities on par with the public parks in use for the benefit of the public. The extent of lands that are required for the Subpumping station in the locality is 432 square meters and the same is barely 1/3^rd of one of the parks in the layout. The site in question is the only site that can serve as the location for the sub-pumping station for the entire locality involving about 4 wards of the Municipality. If this site is not used

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as pumping station, the said 4 wards will not be included in the UGD network and the houses in the said area will be left without any drainage facility. No other site either public or privately owned of suitable size and topography is available in the entire area of the said wards to locate the sub-pumping station. The park site is available without any use and it is in a dilapidated state and filled with debris and thorny bushes due to non maintenance by the promoters. Meetings have been held with the Tahsildar, TWAD Board, Ward Councillors apart from the Officers of the respondent with the petitioner. In all the meetings, the details of the UGD system and the features of the pumping station were explained to the petitioner and the other residents of the layout. The petitioner has been adamantly refusing to permit the work to be carried out and has been threatening to commit suicide if the work is carried out.

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3.4 Further, it is stated in the courter that the entire pumping system

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will be in hermetically sealed system where there will not be any smell or fumes as the entire system is to receive the sewage flow from the houses by

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gravity and then pumping the said sewage to the STP at Salavathi. There will be no smell or inconvenience to the resident living right adjacent to the

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pumping system. The pumping stations are all situated in all cities and towns only in the residential localities as they need to be situated near the source of the sewage generators which are the houses where people live. Therefore, the situation of the pumping station is required to be close to the houses and is also the only feasible and available location for providing the UGD system to the 4 wards in question. The petitioner being an elected Panchayat Union Councillor of the Mailam Panchayat Union, is the only person who is objecting for such scheme. The system of underground drainage is requisite for handling of the sewage as the old system of having septic tanks and soak pits only results in the pollution of the ground water over time and results in spoiling the ground water table. Therefore, as the establishment of the sub pumping station is essential for the location of the four wards and since there is no other feasible or suitable location in the said 4 wards due to the topographical features and since the situation of the sub pumping station will not in any way prejudice anyone including the petitioner, the said pumping station needs to be established only in the available open space of the layout. Hence, prayed for dismissal of this Writ Petition.

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The second respondent filed counter stating that out of the total extent of 13509 sq.ft. reserved for park and playground, only an area of 4,583.76 sq.ft. of land has been allotted by the Tindivanam Muncipality for the purpose of construction of sub pumping station. After due verification by the officers, the above land was allotted and there is no other suitable space is available for installing the pumping station other than the allocated location for collection of sewage of the residents of Dr.Wahab Nagar and pumping it to the sewage treatment plant [STP], through underground pipelines, for safe disposal generated in these areas. It is further stated that park and play ground area in Dr.Wahab Nagar has been allotted to the Tamil Nadu Water Supply and Drainage Board for the construction of subpumping station at TS No.40 with an extent of 426m2 vide Municipal Commissioner been obtained vide resolution No.229 dated 30.09.2020. There is no other place other than the allotted area for providing subpumping station for the use of collection of sewage from the residents of Dr.Wahab Nagar. If underground drainage scheme is not implemented, the residents and the general public will be put to serious health issues. Further, it is not feasible to alter the design as more than 50% of the work has been completed by the Tamil Nadu Water Supply and Drainage Board.

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If the under ground drainage scheme is implemented, it would enable to avoid ground water pollution, avoiding health hazards and open drainage system and the implementation of the scheme is for the welfare of the public including the residents of Dr.Wahab Nagar in Tindivanam Municipality. Hence, prayed for dismissal of this Writ Petition.

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The learned counsel appearing for the petitioner would submit that

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an extent of 13509 sq.ft. was reserved for park and playground in the layout. As the above land has been reserved for park and playground, the same cannot be converted for any another purpose. Therefore, it is his contention that when the land is reserved for a public purpose it shall not deem to vests right with municipality and the respondents are obligated to ensure that the purpose for which the land reserved does not get diluted under any pretext. Hence, it is his contention that under the pretext of implementing underground drainage system, pumping station cannot be constructed in a residential area and such conversion is not permissible under law. Therefore, the first respondent's contention that underground drainage system is required only for the welfare of the residents of that area cannot be countenanced. As the land in question is reserved for open

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space, the same cannot be converted for any other purpose and the act of the respondents in encroaching upon the land earmarked as open space reserved for public purpose cannot be permitted. In support of his contentions, he relied on the following judgments :

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Raja Rajeswari Nagar Residents Association, Rep. by its Secretary Dharmaraj Jacom Vs. Government of Tamilnadu, Rep. by its Secretary, Municipal Administration and Water Supply Department and others reported in 2002 [11] CTCOL 833

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R.Chandran Vs. State of Tamil Nadu rep. by its Secretary, Department of Municipal Administration and Water Supply, and another reported in 2010 [4 CTC 737

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SIDCO Nagar Welfare Association, Rep by its Secretary Vs. Chennai Metropolitan Development Authority, rep. by its Member Secretary and others reported in 2018 [5] CTC 857

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Whereas, the learned counsel appearing for the respondents would

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submit that the Government has sanctioned 268 crores for underground drainage system and the underground drainage network involves the laying of 165.889 Kms. of underground sewage lines, 6770 numbers of Manholes, 6 Sub Pumping Stations, 3 lifting stations, 15.26 kilometers of pumping main pipes and substantial work has already been completed. Out of total extent of 13509 square feet earmarked for park and playground, only an extent of 4300 square feet is required for the Sub-pumping station. In support of their contentions, the respondents relied on the judgments of this Court in

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W.P.No.11313 of 2013 dated 24.01.2020 [Sree Sai Nagar.Gokul Nagar Kudiyiruppor Nala Sangam, Rep. by its President N.Ramalingam, Plot No.76, Sree Sai Nagar, Tambaram West, Chennai – 45]

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W.P.No.1985 of 2017 dated 07.06.2018 [S.Prabhu Vs. The Commissioner, Pollachi Municipality, Pollachi, Coimbatore District and another] and

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W.P.No.24541 of 2019 dated 27.09.2019 [C.Loganathan Vs. The Commissioner, City Municipal Corporation, Erode and another].

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It is the case of the petitioner that an extent of 13509 sq.ft. has

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been ear marked for park and playground. Whereas it is the contention of the respondents that in another layout situated right adjoining the said layout, an extent of 404 square meters has been left for park space and both the places are available for public use. However, that area has not been developed as park or play fields till date. According to them, they require for sub pumping station in the locality in 432 squre meters and the same is barely 1/3^rd are of earmarked for park and play grounds.

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It is also contention of the respondents that around 268 crores has been sanctioned and work Order has been issued for erecting pumping stations to be built in the area for the purpose of collecting sewage from the area and the entire pumping system will be in hermetically sealed system where there will not been any smell or fumes as the entire system to receive the sewage flow from the houses by gravity and then pumping the said sewage to the STP, at Salavathi.

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In the judment of the Apex Court in PT.Chetram Vashist [Dead] by Lrs. Vs. Municipal Corporation of Delhi reported in [1995]1 Supreme Court Cases 47 , the Apex Court has held that Space reserved in

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the plan for public purpose for park school etc., the Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself.

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In judgment of this Court in Sabha Srinivassan @ S.Kanaga

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Sabapathy Vs. Director of Town and Country Planning and others reported in 2021 [4] CTC 839 , it has been held that land reserved for park cum playground cannot be reclassified or converted even by the Government, as neither the Government nor the owner have any title over the same and it is handed over to the Local Body Authority by way of Gift Deed for the public purpose at the time of approval of the layout and the actual right vests in the residents of the locality. In the above case, the circular was issued in the year 1991 to the effect that if there is no demand from the public for conversion of such salable plots into public purposes like Kalyana Mandapam Community Hall, School, shop ect., for 5 years from the date of Layout, the Layout owners may be permitted to seek conversion of such reserved plots earmarked for public purposes into

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residential plots and the requests from the land owners may be considered favourably by the Director of Town and Country Planning provided 10% of the space has to be handed over to the Local Body Authority by way of Gift Deed. Taking note of the above circular, this Court has held that such course is not permissible and in the light of the decision of the Division Bench of this Court in SIDCO Nagar Welfare Association rep. by its Secretary Vs. Chennai Metropolitan Development Authority rep. by

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its Member Secretary reported in 2018 [5] CTC 857 , it has been held that conversion of plots earmarked as children Play School and park into Residential Plots cannot be granted.

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In the judgment of this Court in R.Chandran Vs. State of Tamilnadu rep. by its Secretary, Department of Municipal Administration and Water Supply reported in 2010 [4] CTC 737 , this Court has held that as the land in question has been used as park and playground for the past 50 years, Corporation cannot be allowed to use the said playground for construction of underground parking and set aside the Order of the Corporation. It is relevant to note that the Division Bench of this Court in W.P.No.4897 of 2011 [Mr.E.Chandrasekar and others Vs.

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The Secretary, Government of Tamil Nadu, Municipal Administration,

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Chennai and others] , wherein the Division Bench of this Court after considering the rival contentions had permitted the Tambaram Municipality to construct the Sewerage Pumping Station with certain conditions which reads as follows :

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"6. In the above scenario, striking a fine balance, we are of the view that both the existence of the School as well as the construction of the Sewerage Pumping Station are of the utmost necessity, in the interest of the public at large. Further, we have noticed that in order to implement the Underground Sewerage System in Tambaram Municipality, administrative sanction was accorded as far back as in 2009 at a cost of Rs.160.96 crores with http://www.judis.nic.in 8 the financial assistance under the Jawaharlal Nehru National Urban Renewal Mission (JNNURM) and the said project is under implementation by the CMWSSB and further that the works are in the advanced stage of its execution. In the aforesaid premises, we allow the respondents to proceed with the execution of the work on the following conditions :- '(i) Out of the total extent of land measuring 4,325 sq.mts., only a maximum of 600 sq.mts. shall be demarcated for setting up of the Sewerage Pumping Station, and the rest of the land shall be left untouched, for the school playground. (ii) As stated by

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the respondents, the Pumping Station shall be designed with utmost care with highly impervious reinforced concrete structure and waterproofing compound, so that there shall not be any seepage infiltration or exfiltration. (iii) All care shall be taken by the respondents to ensure that the ground water in the surrounding area shall not get polluted. (iv) If the compound wall of the school is in any way damaged while executing the work, the respondents shall construct a pucca boundary wall for the school premises to such a height that the atmosphere of the school may not be polluted by the sewerage pumping Station.' "

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Similarly, the Division Bench of this Court in W.P.No.32938 of

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2017 [T.G.Ruthramani, Secretary, Poonamallee Nanbargal Nagar Veettu Manai Urimaiyalargal Nalasangam, Poonamallee, Thiruvallur District, Chennai-56 Vs. The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maligai,

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Egmore, Chennai-8 and others] has permitted to establish an integrated Municipal Solid Waste Facility in the area allotted for the park in the approved layout. Apart from the above, this Court in W.P.No.26581 of

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2017[M.S.Rangarajan Vs. Pammal Municipality] , this Court has permitted the petitioner for putting up Micro Compost Yard in the area 17/22 https://www.mhc.tn.gov.in/judis

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earmarked as play ground on certain conditions. In an another Writ

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Petition in W.P.No.11313 of 2013 [Sree Sai Nagar.Gokul Nagar Kudiyiruppor Nala Sangam, Rep. by its President N.Ramalingam, Plot No.76, Sree Sai Nagar, Tambaram West, Chennai – 45] , this Court has permitted construction of pumping station in the area earmarked for park, considering the larger public interest is involved.

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Admittedly, apart from 13509 sq.ft. another 404 sq.ft. is also available as open which has been reserved for park and playground. Though the said area has been earmarked for park, the same has not been utilized for the purpose for which it has been meant. Merely because a portion has been earmarked for park and the same has not been utilized for the said purpose, same cannot be a ground for the authorities to contend that they can convert the same for any other purpose in all cases.

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It is to be noted that out of the total extent of 13,509 sq.ft. reserved for park and play ground only an area of 4,583.76 sq.ft. of land has been allotted by Tindivanam Municipality for the purpose of the construction of sub pumping station. After due field verification by the

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officers, the above land was allotted and there is no other suitable space available for installing the pumping station other than the allocated location for collection of sewage of the residents of Dr.Wahab Nagar and pumping it to the sewage treatment plant through underground pipelines for safe disposal of sewage generated in these areas. Further more than 50% of the work has been completed by the Tamil Nadu Water Supply and Drainage Board. If the underground sewerage scheme is not implemented, the residents and the general public will be put into serious health issues and if the underground drainage scheme is implemented, it would enable to avoid ground water pollution, avoid health hazards and open drainage system. The Government is implementing this scheme for the welfare of the public including the residents of Dr.Wahab Nagar.

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In such view of the matter, the respondent shall utilize the land to

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an extent of 4583 sq.ft. and the rest of the land shall be left untouched in the following manner :

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[1] The respondents shall develop the rest of the area as

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proper park with playing facilities and walking paths and play ground for children, for use of the residents as well as other

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public, as undertaken by them in their counter.

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[2] The pumping station shall be constructed as per their

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undertaking given by them in their counter and the residents of

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Wahab Nagar shall ensure that the water in the surrounding area shall not get polluted.

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[3] The pumping station should be compounded.

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If the pumping station is constructed with sufficient safeguard measures a stated above, it will prevent health hazards and it will make environment clean and prevent air pollution etc. Hence, in the larger interest of the

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public, the prayer in the Writ Petition cannot be accepted.

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Accordingly, this Writ Petition is dismissed. The respondents are

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directed to execute construction work of pumping station as per the Order of this court referred above. Consequently connected miscellaneous petition is closed. No costs.

05.01.2022

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