IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 22-7-2009 CORAM The Hon'ble Mr.Justice S.J.MUKHOPADHAYA and The Hon'ble Mr.Justice R.SUDHAKAR Writ Petition Nos.19388 of 2006 and 7243 of 2007 and Miscellaneous Petition Nos.1 and 2 of 2006 in W.P.No.19388 of 2006 and Miscellaneous Petition No.1 of 2007 in W.P.No.7243 of 2007 and Miscellaneous Petition No.1 of 2008 in both writ petitions W.P.No.19388 of 2006:- S.Venkatesan ... Petitioner -Vs.- 1.Government of Tamil Nadu, represented by its Secretary, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 2.Commissioner of Municipal Administration, Chepauk, Chennai-600 005. 3.Tindivanam Municipality, represented by its Commissioner, Tindivanam. ... Respondents W.P.No.7243 of 2007:- K.V.N.Venkatesan ... Petitioner -Vs.- https://hcservices.ecourts.gov.in/hcservices/ 1.Government of Tamil Nadu, represented by its Secretary, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 2.Commissioner of Municipal Administration, Chepauk, Chennai-600 005. 3.Tindivanam Municipality, represented by its Commissioner, Tindivanam. ... Respondents M.P.No.2 of 2006 in W.P.No.19388 of 2006:- 1.R.Nirmala Ravichandran, 2.D.Rajasekar. ... Petitioners/ Proposed Respondents 4 and 5 vs. 1.S.Venkatesan, 2.Government of Tamil Nadu, represented by its Secretary, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 3.Commissioner of Municipal Administration, Chepauk, Chennai-600 005. 4.Tindivanam Municipality, represented by its Commissioner, Tindivanam. ... Respondents/Petitioner and Respondents 1 to 3 in W.P.No.19388 of 2006 M.P.No.1 of 2008 in W.P.No.19388 of 2006:- A.Moovarku Mudalvan. ... Petitioner/3rd party vs. https://hcservices.ecourts.gov.in/hcservices/ 1.S.Venkatesan, 2.Government of Tamil Nadu, represented by its Secretary, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 3.Commissioner of Municipal Administration, Chepauk, Chennai-600 005. 4.Tindivanam Municipality, represented by its Commissioner, Tindivanam. ... Respondents/Petitioner and Respondents 1 to 3 in W.P.No.19388 of 2006 M.P.No.1 of 2008 in W.P.No.7243 of 2007:- A.Moovarku Mudalvan. ... Petitioner/3rd party vs. 1.K.V.N.Venkatesan, 2.Government of Tamil Nadu, represented by its Secretary, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 3.Commissioner of Municipal Administration, Chepauk, Chennai-600 005. 4.Tindivanam Municipality, represented by its Commissioner, Tindivanam. ... Respondents/Petitioner and Respondents 1 to 3 in W.P.No.7243 of 2007 Both the Writ Petitions are filed under Article 226 of Constitution of India praying to issue a writ of declaration to declare the resolution of the 3rd respondent dated 13.6.2006 in the emergency meeting held on 13.6.2006 to establish the new bus stand in the Tindivanam Ery land (Survey Nos.33/4 and 36/5) as illegal, arbitrary and contrary to Environmental law declared by the Hon'ble Supreme Court and consequently direct the respondents to implement https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.136 dated 15.9.2006. M.P.No.2 of 2006 in W.P.No.19388 of 2006 is filed praying to implead the petitioners as the proposed respondents 4 and 5 in W.P.No.19388 of 2006. M.P.No.1 of 2008 in both the W.P.No.19388 of 2006 and W.P.No.7243 of 2007 is filed praying to implead the petitioner as the proposed 4th respondent in both the W.P.Nos.19388 of 2006 and 7243 of 2007. For petitioner in W.P.No.19388 of 2006 : Miss R.Vaigai for Mr.Balan Haridoss For petitioner in W.P.No.7243 of 2007 : Mr.Ajay Khose For respondents in both writ petitions : Mr.G.Masilamani, Advocate General, assisted by Mr.S.Sivashanmugam Government Advocate For implead petitioner in M.P.No.2 of 2006 in W.P. No.19388 of 2006 : Mr.V.Raghavachari For implead petitioner in M.P.No.1 of 2008 in W.P. Nos.19388 of 2006 and 7243 of 2007 : Mr.V.Ragupathi ----- COMMON JUDGMENT R.SUDHAKAR,J. The Writ Petitions are filed in public interest to issue a writ of declaration to declare the resolution of the 3rd respondent dated 13.6.2006 in the emergency meeting held on 13.6.2006 to establish the new bus stand in the Tindivanam Ery land (Survey Nos.33/4 and 36/5) as illegal, arbitrary and contrary to Environmental law declared by the Hon'ble Supreme Court and consequently direct the respondents to implement G.O.Ms.No.136 dated 15.9.2006. 2. In both the writ petitions the facts and the relief sought https://hcservices.ecourts.gov.in/hcservices/ for are similar. Hence, both the writ petitions are taken together and disposed of by this common order. 3. The brief facts of the case of the writ petitioners in both the case is as follows:- (i) After construction of fly over in Tindivanam Municipal Town, the existing old bus stand was not sufficient to cater to the needs of the public and is causing traffic congestion. The Tindivanam Municipality, initially has taken a decision to establish new bus stand in Tindivanam Ery in R.S.Nos.33/4 and 35/5 measuring 6 acres. The Council of the third respondent, on 27.11.1991 requested the first respondent government to grant permission to enter upon the land pending finalisation of alienation of the land. Thereafter, the then elected body of the Municipal Council of the third respondent passed Resolution No.473 dated 25.5.1998 giving its concurrence for the alienation of Tindivanam Ery and thoppu poramboke lands for the new bus stand. The District Collector, Villupuram by his communications dated 10.1.2000, 29.3.2000 and 13.6.2000 recommended the proposal of the Tindivanam Municipal Council to the first respondent. The first respondent Government in G.O.No.101 dated 5.3.2001 passed orders alienating the Ery and thoppu lands in all measuring 6 acres in R.S.Nos.33/4 and 36/5 to the third respondent on payment of Rs.12,79,488/- towards cost of the land and Rs.1,361/- towards the cost of standing trees. On payment of money, the land was handed over to the third respondent on 14.1.2003. After this no action was taken. (ii) The construction of new bus stand on the Ery is not a good proposal in public interest. The public are opposing the construction of new bus stand on the Ery land as the same would damage the water resources and the water table of Tindivanam Town will go down. The rain water should accumulate in the Ery, however, if the same is filled up for the bus stand purpose, it would result in the flooding of Tindivanam Town during monsoon and other rainy seasons. If new bus stand is put up in the Ery land, it will result in development of the adjacent places and it will cause further damage the entire Ery resulting in pollution. In this process, the entire rain water body, the Ery will be decimated in the near future and cannot be revived by any means. It will cause a permanent and irrevocable damage to the ecology. (iii) In view of the public opposition for establishing new bus stand in the Ery land, the then elected body of the Tindivanam Municipal Council, on 30.7.2004 passed a resolution No.354 to establish the new bus stand in the land belonging to Wakf Board at Survey No.202 measuring 6 acres on the National Highways No.45 in Gidangal village on the Mylam Road, Tindivanam. The said land is about 250 metres away from the existing bus stand and the same is https://hcservices.ecourts.gov.in/hcservices/ within the Town limits of Tindivanam. Second respondent Commissioner of Municipal Administration permitted the third respondent to appoint a consultant for construction of new bus stand vide its proceedings dated 9.6.2004. Third respondent Municipality passed resolution No.444 dated 30.9.2004 to appoint consultant for designing the bus stand. (iv) As two resolutions were passed by the Tindivanam Municipality one on 25.5.1998 by the past elected body of Municipal Council to establish the new bus stand in the Tindivanam Ery and other one on 30.7.2004 by the subsequent elected body of the Tindivanam Municipal Council to establish the new bus stand in Wakf Board land, the third respondent by its letter dated 10.10.2004 sought clarification from second respondent Commissioner of Municipal Administration as to which resolution has to be acted upon. (v) The writ petitions filed under public interest litigation to quash the Municipal Council's Resolution No.458 dated 30.9.2004 seeking to establish new bus stand in the Wakf Board land were dismissed. (vi) Second respondent taking note of the two resolutions passed by elected body and the need to preserve the Ery, taking into consideration of G.O.Ms.No.186 dated 29.4.2003 which prohibits encroachment of any Ery, Pond or any water resources, accepted the proposal to establish new bus stand in the land belonging to Wakf Board. Accordingly second respondent vide his letter dated 25.2.2005 directed the third respondent to initiate action with the Wakf Board for getting the land for establishing new bus stand. The said letter was also placed before the Council of the third respondent and the same was registered by the Council in its Resolution No.110 dated 4.3.2005. (vii) Thereafter, the third respondent approached the District Collector, Villupuram with a request to ascertain the willingness of the Wakf Board to sell the land to the third respondent or to lease out the land on long term basis for establishing new bus stand. After inspection of the said land, the District Collector submitted his report to the first respondent stating that the land belonging to the Wakf Board in Survey No.202 at Gidangal village can be utilised for construction of new bus stand. The Tamil Nadu Wakf Board agreed for fixing the lease amount at Rs.60,000/- per month and agreed to lease out 6 acres out of 24.04 acres in Survey No.202 and for receiving Rs.6,00,000/- towards advance. On 17.8.2005, the Council of the third respondent agreed to the lease amount and advance proposed by the Wakf Board in its Resolution No.395. Accordingly, third respondent by its letter dated 18.8.2005 sought permission for paying the lease amount and the lease advance for the new bus stand. The first respondent issued G.O.Ms.No.136, Municipal Administration https://hcservices.ecourts.gov.in/hcservices/ and Water Supply (MA 4) Department dated 15.9.2005 granting permission to the third respondent to take over 6 acres of land out of 24.04 acres in Survey No.202 of the Gidangal village from the Tamil Nadu Wakf Board on three year lease basis extendable 25 times for construction of new bus stand. First respondent also permitted the third respondent to pay the lease rent of Rs.60,000/- per month with advance amount of Rs.6 lakhs to the Tamil Nadu Wakf Board. (viii) On issuing G.O.Ms.No.136 dated 15.9.2005, the possession of Wakf Board's land was taken after paying the lease and advance amount. The land was cleaned and levelled with District Collector's approval. The Regional Transport Officer accorded necessary permission for opening the bus stand on temporary basis pending construction of pakka building. New bus stand established on temporary basis was opened on 28.12.2005 by the then Local Minister and the District Collector. Tenders were invited for construction of building in the bus stand and many people participated in the Tender. In view of the announcement of the Election date, the tenders were not opened due to the Notification by the Election Commissioner. (ix) Whileso, the third respondent contrary to G.O.Ms.No.186 dated 29.4.2003 has passed a resolution in an emergency meeting on 13.6.2006 seeking approval to establish the bus stand at the Ery Site for the second time, which was already discarded as stated above. The first respondent Government has issued G.O.Ms.No.41 Revenue (L) Department dated 20.1.1987 prohibiting regularisation of any encroachment in the Ery, Pond, etc., and directed the authorities to remove all the encroachments. As per G.O.Ms.No.186 dated 29.4.2003, all the encroachments in the Ery, Odai, Vaikal, etc., were directed to be removed by the District Collector, and no encroachment on the water bodies/resources should be regularised. It was further directed that any future encroachment should also be dealt with sternly. In the said G.O., it was mentioned that any District Administrative Officer violating the directions will face disciplinary proceedings. (x) In the rain during October, 2005 there was flooding of the Tindivanam Town as the water courses to the Ery were blocked. The resolution No.671 dated 13.6.2006 is in violation of G.O.Ms.No.41 dated 20.1.1987, G.O.Ms.No.186 dated 29.4.2003, G.O.Ms.No.136 dated 15.9.2005 and the judgment rendered by the Supreme Court reported in 2006(2) CTC 71 besides violating the provisions of the Tamil Nadu Water (Prevention and Control of Pollution) Act, 1974. Therefore, the resolution No.671 dated 13.6.2006 by the Council of the third respondent has to be declared illegal. (xi) It is also contended that the first respondent should endeavour to protect and improve the environment under Articles 48A and 51A of the Constitution of India. The resolution is contrary to https://hcservices.ecourts.gov.in/hcservices/ Articles 14 and 21 of the Constitution of India. It is the duty of the citizen to protect and improve National Environment including Forests, Lakes, Rivers, Wild Life and to have compassion for living creatures. Hence, both the writ petitions are filed to declare the resolution No.671 of the 3rd respondent dated 13.6.2006 to establish new bus stand in the Tindivanam Ery land as illegal, arbitrary and contrary to Environmental law declared by the Supreme Court and consequently direct the respondents to implement G.O.Ms.No.136 dated 15.9.2006. 4. In the counter affidavit dated 21.7.2006 filed by one K.Kanniappan, the then Commissioner, Tindivanam Municipality, the third respondent in W.P.No.19388 of 2006, it is stated as follows:- (i) The writ petitioner has an efficacious and alternate remedy as contemplated under Section 36 of the Tamil Nadu District Municipalities Act, 1920. The Municipal Council can pass resolution, if it is based on majority and the same is subject to acceptance of the government. It is for the government to consider the case on merits and to issue appropriate orders. (emphasis supplied). After the Ery and thoppu land was alienated to the municipality on 14.1.2003, the third respondent has taken effective steps for construction of new bus stand. The third respondent never remained inactive. The total extent of the Ery is 28.91 acres. An extent of 5 acres on the higher level, where there is no water stagnation as per the report of the District Collector was alienated for establishing the bus stand. It is not correct to say that the public was opposing the alienation of the land for bus stand. The Government has clearly indicated in the G.O.Ms.No.101 Revenue Department dated 5.3.2001 that no objection was received from the public with regard to the land alienation. The rain water accumulation will not at all be affected inasmuch as 23.91 acres of land, which is the actual catchments area, is still available as Ery. The southern side of the Ery remains a well-developed area and it not spoiled. On the northern side of the Ery, there is the Micro Wave Station of the BSNL. On the eastern side, there is the National Highways Road. On the western side, there is railway line. This Ery still remains unpolluted with these developments. If bus stand comes there, there is no scope for further development around it and the Ery will not at all be affected on any account. There is no question of decimating the water body and there will be no damage to the ecological balance. The petitioner has not so far raised any objection with the Municipal authorities. There is no objection from the public either to the municipality or to the Revenue authorities or to the Pollution Control authorities. (ii) The Writ Petition Nos.32320 of 2004 and 7563 of 2005 challenging the resolution No.458 dated 30.9.2004 of third respondent Municipality to establish the bus stand in Wakf Board's land were https://hcservices.ecourts.gov.in/hcservices/ dismissed by this Court on 1.12.2004 and 12.4.2005 respectively, on the ground that the petitioners were having efficacious alternative remedy of appeal under Section 36 of the Tamil Nadu District Municipalities Act, 1920. The same will hold good to the present case also. (iii) It is not correct to say that taking note of the fact that no activity had been carried out till date in the Ery site to establish the new bus stand, the government discarded the Ery site and accepted the proposal to establish the new bus stand in the land belonging to the Wakf Board. (iv) In G.O.Ms.No.136 dated 15.9.2005, orders were issued granting permission to the Tindivanam Municipality to take over 6 acres of land out of 24.04 acres in Survey No.202 of Gidangal village, Tindivanam town from Tamil Nadu Wakf Board on lease basis for construction of a bus stand. The government have not so far come to a conclusion that the land already alienated to the municipality was not suitable for bus stand. If the municipality had been silent without any activity after alienation of land, the government would have taken back the same from the municipality on the ground that the municipality was not interested in the same. The council was actually interested in getting the bus stand at the alienated site and efforts were going on. The second respondent in his letter dated 25.2.2005 enclosing copy of letter dated 22.2.2005 from the Secretary to Government in Municipal Administration and Water Supply Department informed that the government had no objection, if the Tindivanam Municipality wished to change the site of bus stand based on the practical issue and the government further informed that the municipality can proceed further in the matter after obtaining the willingness of the Wakf Board for the proposed acquisition and requested the third respondent to take suitable action and send proposal to alienate the Wakf Board land for the project. The government has not indicated that the alienated land was not suitable for bus stand. (v) While issuing orders in G.O.Ms.No.101 dated 5.3.2001, the government had indicated in clear terms that the ban on alienation of water bodies was exempted in this issue. The government did not reconsider this so far. The government always have the power to consider any issue based on merits and issue appropriate orders. After issue of G.O.Ms.No.186 dated 29.4.2003, the government issued another G.O.Ms.No.41 dated 30.1.2004 alienating 6.10 acres of Chinna Ery land in favour of Krishnagiri Municipality for the construction of bus stand. (vi) As per Section 36 of the Tamil Nadu District Municipalities Act, 1920, the government have power to suspend or cancel any resolutions under the Act. So, if the petitioner is https://hcservices.ecourts.gov.in/hcservices/ aggrieved by the resolution passed by the municipal council on 13.6.2006, he has got adequate opportunity to represent the matter to the District Collector, the Regional Director of Municipal Administration, the Commissioner of Municipal Administration and the Government and get his grievance redressed. (vii) The resolution passed by the Municipal Council on 13.6.2006 is not in violation of the G.O.Ms.No.186 dated 29.4.2003. The earlier order passed by this Court in the writ petitions filed during the years 2004 and 2005 as stated above questioning the other resolution passed by the same municipal council will hold good for this writ petition also. Therefore, the third respondent prays dismissal of the writ petition. (viii) No counter was filed by the respondents in W.P.No.7243 of 2007. 5. In the additional common counter-affidavit dated 13.11.2008, filed by one Mr.N.Ravichandran, the present Commissioner, Tindivanam Municipality, the third respondent in W.P.Nos.19388 of 2006 and 7243 and 2007, it is stated as follows:- (i) The relief claimed in the writ petition is for redressel of private and political dispute and not in public interest. It is incorrect to state that the Municipality has passed a resolution in the emergency meeting held on 13.6.2006 to establish a new bus stand in the Tindivanam Ery land. All procedures have been scrupulously followed for purchase of the land. After inspection, the District Collector vide his letter dated 6.11.1991 had stated that the existing bus stand is not sufficient to cope-up with the vehicular traffic and the same has to be relocated from its existing place for the following two reasons, viz., (a) the place has become highly congested and (b) the road from NH 45 is very narrow and precarious. On 14.11.1991, the Municipality had sent a requisition to the District Collector for the alienation of the land for the purpose of relocating bus stand. On 27.11.1991, in Resolution No.400 of Tindivanam Municipal Council sought alienation of land and permission to enter upon the Ery land. (ii) On 20.10.1994, the Municipal Commissioner sent a proposal to the District Collector, Villupuram for getting a suitable land to locate the new bus stand. On 29.3.1995, the District Revenue Officer, Villupuram sent to a letter to the Municipality suggesting acquiring some other sites so as to avoid selection of water bodies for development work. On 7.3.1997 by resolution No.612, the Tindivanam Municipal Council reiterated its stand on the selection of https://hcservices.ecourts.gov.in/hcservices/ Tindivanam Ery and stated that there is no other suitable land available within the town for the construction of bus stand and the same was communicated to the District Revenue Officer, vide letter dated 12.3.1997. Thereafter, A1 notice (under R.S.O.No.24) was issued on 13.8.1997 calling for objections within 15 days from the date of publication. Due publication was caused and informed in the locality by the beating of Tom Tom. (iii) On 16.9.1997, the Tahsildar, Tindivanam, inspected the site along with Revenue Inspector and Village Administrative Officer and sent a proposal to the District Revenue Officer on 9.10.1997. The notes of inspection were sent to the Assistant Collector, Tindivanam on 24.10.1997. On 12.2.1998, the Tahsildar requested the Council for forwarding the proposals. On 5.10.1998 the Commissioner sent the proposal and the consent to acquire 5 Acres of Ery Poromboke and 1 acre of Thoppu Poromboke to Tahsildar, Tindivanam. On 9.4.1999 the inspection notes of the Revenue Divisional Officer was sent stating that the land under reference was not low lying and the entire ayacut lands are being converted to housing sites and hence can be alienated. On 8.11.1999, the Revenue Divisional Officer after inspection sent his report in letter No.A3/127/98 to the District Collector, Villupuram about the suitability of the site. On 12.11.1999, the technical opinion for the construction of the bus stand from the Commissioner, Panchayat Union, Marakkanam was received and on the same day a resolution was passed in Resolution No.215 to the effect that the land is suited for the formation of the bus stand. After inspection, the then District Collector, Villupuram and the District Revenue Officer expressed their satisfaction on the formation of the bus stand in the proposed site. No objection was received from anyone regarding the proposed bus stand. (iv) The District Collector, by his letter dated 10.1.2000 addressed to the Secretary, expressed the suitability of the Ery site and requested the government for exemption from the ban order. On 5.3.2001, G.O.Ms.No.101 was issued by the Revenue Department alienating the land and also granting exemption from the ban orders. On 18.11.2002, the Municipal Commissioner sent a cheque for a sum of Rs.12,80,849/- to the Tahsildar. On 29.11.2002, by resolution No.556, the Municipal Council resolved to construct the proposed bus stand at the cost of Rs.5 crores. The lands were taken possession by the Tindivanam Municipality on 14.1.2003. As requested, the Sub Collector, Motor Vehicles Inspector and Commissioner, Tindivanam Municipality inspected the site and sent a joint report on 25.4.2003, about the suitability of land for the construction of the proposed bus stand and emphasized the urgency and the dire need of it to the town. On 12.6.2003, the District Collector, sent his recommendations to the Commissioner of Municipal Administration. On 15.10.2003, the Commissioner of the Municipal Administration sought https://hcservices.ecourts.gov.in/hcservices/ for a meeting with the Municipal Commissioner for the finalisation of the design of the proposed bus stand. On 25.8.2004, the tender documents were approved by the Commissioner of Municipal Administration. (v) On 30.9.2004, by Resolution No.444, the Municipality resolved to construct the bus stand on the land belonging to the Wakf Board. The same as challenged by way of W.P.No.32320 of 2004. The said W.P.No.32320 of 2004 was dismissed on 1.12.2004. By virtue of Resolution No.59, the Municipality fixed a deadline of one month to decide as to whether to construct the bus stand either on the Wakf Board land or at the lands already purchased by it. On 25.2.2005, the Commissioner of Municipal Administration gave consent and expressed no objection to Municipality for the construction of the bus stand on the Wakf Board Land. On 2.3.2005, the Municipal Commissioner sought willingness of Wakf Board and on 3.8.2005, the Wakf Board stated its terms and conditions for leasing out its land for a period of 75 years. By G.O.Ms.No.136 (MAWS) dated 15.9.2005, the Government permitted the Municipality to take 6 acres of Wakf Board land on lease and permitted the Municipality to pay the lease rent of Rs.60,000/- per month and an advance amount of