S VENKATESAN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) BY way of this Public Interest Litigation, the petitioner has prayed for issuance of a writ of certiorarified mandamus to quash the Government order in G.O. Ms. No. 191, Municipal Administration and Water Supply Department, dated 12.10.2009 and for a direction upon the respondents to establish the Tindivanam bus stand in a place other than survey No. 33/4 and 36/5, which is part of Tindivanam eri.

(2.) 2(i) The petitioner is a resident of Tindivanam and he was born and brought up at Tindivanam and the primary objection raised in this writ petition is regarding the location of the proposed new bus stand at Tindivanam in R.S. No. 33/4 and 36/5 measuring an extent of 6 acres, which is classified as Eri. 2(H) The Case of the petitioner could be summarized as follows: The third respondent Municipality made a request on 27.11.1991 to the Government to grant permission to them to enter upon the land comprised in R.S. No. 33/4 and 3675, measuring an extent about 6 acres for the purpose of construction for a new bus stand, pending finalization of the alienation of the land. After a period of more than seven years, the respondent Municipality passed a resolution on 25.5.1998, giving its concurrence for alienation of the said land for the new bus stand and the District Collector recommended the proposal to the Government. The Government by G.O. Ms. No. 101, dated 5.3.2001 passed orders for alienation on payment of a sum of Rs.12,79,488/- towards the cost of the land and Rs. 1,361/- towards the standing trees. It is stated that the respondent Municipality remitted the amount and land was handed over to the Municipality on 14.1.2003. It is stated that there was public opposition for establishment of the new bus stand in the Eri and the Municipal Council of the third respondent Municipality passed a resolution on 30.7.2004 to establish a new bus stand in survey No. 202, measuring an extent of 6 acres, which belonged to the Wakf Board (hereinafter referred to as the Wakf land). It is stated that the Wakf land is situated about 250 mts from the existing bus stand and is within the Tindivanam town. Based on such resolution, steps were taken by the respondent Municipality to appoint a Consultant on tender basis for the establishment of the new bus stand. This resolution of the Municipality appears to have been challenged by way of the writ petition before this Court and the writ petition was dismissed. (iii) The respondents 2 and 3 proceeded with the necessary formalities to establish the new bus stand in Wakf land. It is stated that the report submitted by the District Collector dated 11.2.2005, certified that the land is suitable for construction of the new bus stand. The Wakf land was proposed to be taken on lease and the Wakf Board agreed upon the lease amount and the same is stated to have been remitted by the Municipality. The Government by G.O. Ms. No. 136, dated 15.9.2005, accorded permission to the respondent Municipality to take over the wakf land on lease basis for construction of the new bus stand. While so, the respondent Municipality passed another resolution in its emergency meeting held on 13.6.2006, seeking approval for the construction of the new bus stand in the eri site instead of the wakf land. The petitioner filed a writ petition being W.P. No. 19388 of 2006, challenging the said resolution dated 13.6.2006 and for a consequential direction upon the respondent to implement the G.O. Ms.No. 136, dated 15.9.2006, where the Government accorded permission to establish the bus stand in the wakf land. The said writ petition along with W.P. No. 7243 of 2007, was disposed of by a common judgment and order dated 22.7.2009, with a direction to the Government to take a final decision in the matter. The Government by G.O. Ms. No. 191, dated 12.10.2009, permitted the establishment of the new bus stand in the eri site and cancelled the earlier Government order permitting to establish the new bus stand in the wakf land. This Government order in G.O. Ms. No. 191 is impugned in this writ petition. (iv) Grounds of challenge: That the action of the Government in passing the impugned order permitting establishment of a new bus stand in eri is illegal and contrary to law. The Government in order to protect water bodies, directed, removal of the encroachments and issued stringent guide lines as to how, such encroachment should be removed from water bodies and in such circumstances, the Government cannot pass an order permitting establishment of a bus stand in a water body. If the bus stand is permitted in the water body, it will result in decimating the water body and will have a devastating impact on the water table and the public will be affected and the damage caused cannot be reversed. The Government by sacrificing the public interest cannot establish a bus stand in a water body. That the Division Bench while disposing of W.P. No. 193 88 of 2006 and W.P. No. 7243 of 2007, directed the Government to take into consideration, the law laid down by the Court, the Government orders insofar as protection of water bodies and directed to decide the issue as to whether the bus stand should be established and without considering the directions, the Government issued the impugned order only based on the financial benefits of establishing the bus stand on an eri over looking the long term impact of the environment. The water in the eri is not only used for irrigation purpose, but it is a source for recharging the ground water and the Government has ignored such factors. It is further stated that the establishment of hospital in the Mundiampakkam eri has no relevance to the present case. While passing the impugned order, there has been no scientific study and no report was obtained from any scientific body about the impact of closing the eri. On the above grounds, the petitioner has sought for quashing the impugned Government order.

(3.) MS. R. Vaigai, the learned counsel appearing for the petitioner after reiterating the stand taken in the affidavit filed in support of the writ petition submitted that the impugned Government order has been passed ignoring direction issued by the earlier Division Bench of this Court in its order dated 22.7.2009, wherein the Division Bench took note of various factors including the report of the Revenue Officials dated 19.12.1994, wherein it was opined that the proposal of the transfer of the eri land may be given up. Further, the learned counsel invited our attention to the Government order in G.O. MS. No. 136 dated 15.9.2005, by which the Government agreed to establish the new bus stand in the wakf site and that the said Government order was also taken note by the earlier Division Bench while disposing of the writ petitions. Further, it is stated that the earlier Division Bench took note of the fact that the respondent Municipality passed the resolution dated 13.6.2006, when earlier two Government orders were neither cancelled nor withdrawn. Further, it is pointed out that the Division Bench had observed that while passing G.O. MS. No. 101, the Government did not consider the impact of the transfer of the eri land for the proposed new bus stand. It is further submitted that the earlier Division Bench took note of all the factors and then remitted the matter to the Government to pass appropriate orders as indicated by the Division Bench and the impugned Government order has been passed in utter discard to the directions issued. Further, it is submitted that the Tamil Nadu Pollution Control Board was not consulted and inspite of a direction issued by the Division Bench on 21.6.2010 to furnish documents to the petitioner, the Pollution Control Board did not comply with the said direction. The order passed by the Pollution Control Board granting consent is against the order passed by the earlier Division Bench and the law enacted by the State Government for the protection and preservation of water bodies and therefore, the impugned order calls for interference.