Podanur, Coimbatore – 641 023 v. The Commissioner,Corporation Of Coimbatore,Coimbatore, Coimbatore District

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 2020andW.M.P.No.24684 of 2020 M/s.Resident Welfare Association of SathyaSai Nagar Sri Sathyanarayan Nagar andFathima 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. https://www.mhc.tn.gov.in/judis 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 Additional Advocate General, assisted by Mr.K.Magesh, Standing CounselO R D E R 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 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. W.P.No.20006 of 2020 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. W.P.No.20006 of 2020 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 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 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. W.P.No.20006 of 2020 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:- W.P.No.20006 of 2020 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:- Nkw;gb gFjpapy; RkhH 800 FbapUe;J tUfpwhHfs;.jw;NghJmq;fPfhpf;fg;gl;l kidg;gphptpy; cs;s kDjhuHfSf;F kioePH ______________ W.P.No.20006 of 2020 tbfhy; trjp kw;Wk; ghjhs rhf;fil trjp vJTk; ,y;yhjjhy; soak pitkw;Wk; septic tank cgNahfpj;J tUfpd;wdH. ,jdhy; epyj;jb ePH khRgLjy; kpfTk; mjpfkhf cs;sJ. vdNt ,g;gFjpapy; nghJkf;fs; eyd; fUjp Rfhjhu eyd; gzpf;fhf kj;jpa muR khepy muR kw;Wk; cs;shl;rp mikg;Gfis ,ize;J AMRUT jpl;lj;jpd; fPo; &.442.00 Nfhb kjpg;gPl;by; ghjhs rhf;fil etPd njhopy;El;g mbg;gilapy; nghJkf;fSf;F gad;ngUk; tifapy; jkpo;ehL FbePH tbfhy; thhpak; %yk; Nkw;f;nfhs;s glTs;sJ. NkYk; ,g;gzp Nkw;nfhs;tjd; %yk; Rw;Wg;Gw Rfhjhuk;> epyj;jb ePH khRg;gLtJ jLf;fg;gl;L> nghJkf;fs; gad;ngWk; tifapy; gzpJtq;fg;gLk; vd njhptpj;Jf;nfhs;fpNwd;. 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 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. W.P.No.20006 of 2020 W.P.No.20006 of 2020 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 https://www.mhc.tn.gov.in/judis 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 W.P.No.20006 of 2020 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.others, (1991) 4 SCC 54. ii. PT. Chet Ram Vahist (Dead) rep. by Lrs. Vs. Municipal Corporation of Delhi, (1995) 1 SCC 47.Municipal Corporation of Delhi, (1995) 1 SCC 47. iii. Machavarapu Srinivasa Rao Vs. Vijayawada, ______________ https://www.mhc.tn.gov.in/judis Guntur,Tenali,MangalagiriUrban Development Authority and others, (2011) 12 SCC 154. iv. Purushottam Vs. State of Karnataka and others, (2014) 3 SCC 721.(2014) 3 SCC 721. v. Sri Devi Nagar Residences Welfare Association Vs. Subbathal and others, (2007) 3 L.W. 259.Vs. Subbathal and others, (2007) 3 L.W. 259. vi. Kirubakaran and others Vs. The Commissioner (East), Corporation of Coimbatore, 2013 (6) CTC 441.(East), Corporation of Coimbatore, 2013 (6) CTC 441. vii.K.Rajamani and othersVs.Alamunagar Residents’ Welfare Association and others, 2011 (1) CTC 257.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.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 W.P.No.20006 of 2020or 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. ______________ https://www.mhc.tn.gov.in/judis W.P.No.20006 of 2020or 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 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 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.Local topography as slope of the ground and above and below ground obstructions. Proposed layout of the particular development and of future developments.Proposed layout of the particular development and of future developments. Proximity of proposed and/or existing sewerage infrastructure. Proximity of proposed and/or existing sewerage infrastructure. Size and type of the pumping station. Size and type of the pumping station. Access considerations for O&M needs including operators health and safety issues including operators health and safety issues Visual impact, particularly the vent tube, odours, noise problems, etc., Visual impact, particularly the vent tube, odours, noise problems, etc., Availability of power, water, etc., Availability of power, water, etc., Vulnerability of the site for inundationVulnerability of the site for inundation Compatibility to neighbouring residences by suitable dialogues. Compatibility to neighbouring residences by suitable dialogues. Proximity of proposed and/or existing sewerage infrastructure. Proximity of proposed and/or existing sewerage infrastructure. Size and type of the pumping station. Size and type of the pumping station. Access considerations for O&M needs including operators health and safety issues including operators health and safety issues Visual impact, particularly the vent tube, odours, noise problems, etc., Visual impact, particularly the vent tube, odours, noise problems, etc., Availability of power, water, etc., Availability of power, water, etc., Vulnerability of the site for inundationVulnerability of the site for inundation Compatibility to neighbouring residences by suitable dialogues. 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 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 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. ______________ https://www.mhc.tn.gov.in/judis 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 ______________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 ______________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 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. 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 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 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 W.P.No.20006 of 2020 Supreme Court observed that when questions of ecology and environment are raised, it was observed that itis 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.” 35. Applying the above guidelines to be followed, the Hon'ble W.P.No.20006 of 2020 Supreme Court observed that when questions of ecology and environment are raised, it was observed that itis 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 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 ______________Page No 25 of 67 W.P.No.20006 of 2020in 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. 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. 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, ______________ 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;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; 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; 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; 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. 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;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; or rehousing of persons displaced by the detailed development plan; (l) the construction of buildings generally and housing or rehousing of persons displaced by the detailed development plan; 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 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 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; 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 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; ______________ W.P.No.20006 of 2020 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:-planning permit or Building permit shall be accompanied as prescribed below:- (i) .................. (ii) ................. 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:-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, — 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 ______________ 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 t