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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.Nos.33760 and 30212 of 2018
and
W.M.P.Nos.39192, 39193 and 35271 of 2018
W.P.Nos.33760 of 2018:
D.Dinesh Kumar .. Petitioner
Vs.
1.The Member Secretary,
Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Building,
No.1, Gandhi Irwin Road,
Egmore, Chennai - 600 008.
2.The Commissioner,
Greater Chennai Corporation,
Rippon Building,
Chennai - 600 003.
3.Public Works Department,
Rep. by its Executive Engineer,
Building Construction Division-I,
Chepauk, Chennai - 600 005.
4.The Member Secretary,
Tamil Nadu State Coastal Zone Management
Authority and Director of Environment,
1st Floor, Panagal Building, Saidapet,
http://www.judis.nic.in Chennai - 600 015.
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5.The Joint Commissioner of Police,
Traffic, Poonamalle High Road,
Kilpauk, Chennai - 600 010. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the approval and grant of planning permission by the 1st respondent dated 21.08.2018 (S.No.28, P.P.No.12027, File No.C4/5673/2018) and to quash the same and direct the respondents to remove the encroachment made across Kamarajar Salai, Chepauk, Chennai and the construction of an arch of M.G.Ramachandran Centenary Arch encroaching Kamarajar Salai just opposite to the office of Public Works Department, Chepauk, Chennai.
For Petitioner : Mr.V.Elangovan
for Mr.S.Doraisamy
For R1 : Mr.Karthick Rajan
For R2 : Mr.K.Soundararajan
For R3 and R5 : Mr.Vijay Narayan
Advocate General
assisted by
Mr.V.Jayaprakash Narayanan
(Govt. Pleader)
For R4 : Mr.E.Manoharan
Additional Government Pleader.
W.P.Nos.30212 of 2018:
D.Dinesh Kumar .. Petitioner
http://www.judis.nic.in Vs.
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1.The Chief Secretary,
State of Tamil Nadu,
Secretariat,
Chennai - 600 009.
2.The Principal Secretary,
Public Works Department,
State of Tamil Nadu,
Secretariat,
Chennai - 600 009.
3.The Principal Secretary,
Highways and Minor Ports Department,
State of Tamil Nadu,
Secretariat, Chennai - 600 009.
4.The Principal Secretary,
Tamil Development and Information Department, State of Tamil Nadu, Secretariat, Chennai - 600 009.
5.Public Works Department, Rep. by its Executive Engineer, Building Construction Division-I, Chepauk, Chennai - 600 005. .. Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, issuance of a Writ of Mandamus, directing the respondents to remove the encroachment made across Kamarajar Salai, Chepauk, Chennai and construction of an arch of M.G.Ramachandran Centenary Arch encroaching Kamarajar Salai just opposite to the office of Public Works Department, Chepauk, Chennai.
For Petitioner : Mr.V.Elangovan
for Mr.S.Doraisamy
http://www.judis.nic.in
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For Respondents : Mr.Vijay Narayan
Advocate General
assisted by
Mr.V.Jayaprakash Narayanan
(Govt. Pleader)
and Mr.E.Manoharan
Additional Government Pleader.
COMMON ORDER
(Order of this Court was made by SUBRAMONIUM PRASAD, J.) The instant public interest litigations are filed for the following prayers:-
(i) To direct the respondents, to remove the encroachment which is an arch of M.G.Ramachandran, a former Chief Minister of Tamil Nadu, erected on the occasion of his Centenary on the ground that the said arch encroaches Kamarajar Salai.
(ii) To call for the records relating to the approval and grant of planning permission by the 1st respondent dated 21.08.2018 (S.No.28, P.P.No.12027, File No.C4/5673/2018), to quash the same and to direct the respondents to remove the encroachment made across Kamarajar Salai, Chepauk, Chennai and the construction of an arch of M.g.Ramachandran Centenary Arch encroaching Kamarajar Salai just opposite to the office of Public Works Department, Chepauk, Chennai.
2. The writ petitioner claims himself to be a public interest litigant and states that he has no personal interest in this case. http://www.judis.nic.in 3. The petitioner has contended that Kamarajar Salai is situated on 5 the East Coast of the Madras city between Madras University and Santhome on the Coastal area. The petitioner states that Kamarajar Salai is a six lane road and it is a major Arterial road in Madras city. There are various Government institutions on the western side of the road, like the Madras University, Ezhilagam, Public Works Department and Tamil Nadu Slum Clearance Board, etc. The Presidency and Queen Mary's College, are also on the western side of the road.
4. According to the petitioner, there is heavy traffic on the road. The petitioner states that the Government have decided to put up an arch on Kamarajar Salai, in the name of late Sri.M.G.Ramachandran, Former Chief Minister of the State of Tamil Nadu. Petitioner has submitted that the said arch encroaches the pathway on the said road and is in contravention of the provisions of the Tamil Nadu Highways Act, 2001. According to the petitioner, erection of an arch in the name of former Chief Minister, is not in public interest and the arch is being erected in his name only for political reasons. The writ petitioner submits that the said arch is in violation of Section 26 of the Tamil Nadu Highways Act, 2001 and is in encroachment on highways.
http://www.judis.nic.in 5. The petitioner also submits that the decision of the Government 6 is indirect contravention of the judgment of the Hon'ble Supreme Court in A.Abdul Farook v. Municipal Council, Perambalur and others, reported in (2009) 15 SCC 351.
6. The prayer is one for remove the arch. These writ petitions came up for hearing before this Court on 19.11.2018, primarily for considering the application for injunction, because at the time when the matter was listed, the construction of the arch, was not completed. This Court by its order dated 19.11.2018, has passed the following order:-
"11. This Court, upon consideration of rival submissions and also the judgements relied on by the learned counsel appearing for the respective parties, is of the prima facie view that the construction of permanent structure in the form of Commemorative Arch along with the main arterial road may not be in order and however with regard to factual aspects, especially the clearances obtained from various authorities, it requires a counter affidavit with supporting documents from the official respondents. 12. This Court has also taken note of the submission of the learned Advocate General that the construction is in semi-finished stage and in view of impending monsoon, if the construction is left in the midway, it may get damaged and he may come out with alternative solution as to the free access of pedestrians on the pathway, over which a portion of the construction is being put up.
13. Hence, there shall be an ad-interim order, permitting the respondents 2 to 4 to proceed with the construction of the Commemorative Arch and however, till the disposal of the writ petition, inauguration of the same cannot be done. Call on 17.12.2018."
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7. The matter again came up for hearing on 09.01.2019, when this Court passed the following order:-
"3. The learned Advocate General would also submit that since the construction of the Arch has been completed, short function will be held and the leader of the party will inaugurate the arch and in that event no nuisance will be caused to the general public and inauguration of the said arch may be ordered subject to the result of the pending writ petition.
4. However, the said plea is strongly opposed by Mr.S.Duraisamy, learned counsel appearing for the petitioner, who would submit that since the counter affidavit of the official respondents are not filed in W.P.No.33760 of 2018 by justifying their stand, inauguration cannot be done.
5. This Court has considered the rival submissions and also perused the materials placed before it.
6. This Court is of the considered view that unless counter affidavit with supporting documents are filed in W.P.No.33760 of 2018, inauguration of the Arch cannot be done. Since it is represented that the Arch has been completed and green net has been put over the said Arch, this Court permits the official respondents to remove the green net, scaf fold as well as asbestos sheets put up on the said Arch and makes it clear that till the disposal of the writ petition, inauguration cannot be done."
8. The Government has filed its counter, contending inter alia:-
a) The Executive Engineer, Public Works Department submitted an application to the Commissioner, Greater Chennai Corporation, for the construction of the above cited Arch vide PWD Lr. No. DB/JDO/F/2017 dated 12.03.2018.
http://www.judis.nic.in 8
b) By Lr. No. 108/2018 dated 28.03.2018, the Greater Chennai Corporation, examined and forwarded the same to CMDA for consideration.
c) In the meanwhile, the Competent Authority to grant permission for construction of any structures on a the Public Road (i.e) Secretary, Revenue department, Government by its G.O. (Ms) No. 301, Revenue and Disaster Management Department Land Disposal Wing (LI) 4(1) Section dated 21.08.2018 based on the recommendations of the District Collector, Chennai, the Commissioner, Greater Chennai Corporation and the Commissioner of Police, Greater Chennai, issued orders to Greater Chennai Corporation and Commissioner of Police to grant 'No Objection Certificate' for the construction of "an Arch" to commemorate the birth centenary year of the former Chief Minister of Tamil Nadu, Dr.M.G.Ramachandran, across Kamarajar Salai.
d) The Chennai Metropolitan Development Authority scrutinized the proposal having regard to its Development regulations, Coastal Regulations and the Special Rules for Heritage Buildings.
e) The stretch of Kamarajar Salai lies in CRZ-II. The Executive Engineer, PWD certified that the service road from Marina Beach to Light House situated, in between Kamarajar Salai and Marina Beach, is in existence prior to 1991. It belongs to PWD, but is under the maintenance http://www.judis.nic.in 9 of the greater Chennai Corporation and used as a Public Road. As per the CRZ-II norms, buildings would be permitted only on the landward site of existing road or existing authorized structures. In view of the existence of the service road before coming into force of CRZ Regulations in 1991 and the proposed Arch is landward from such existing road, the Application was found to satisfy CRZ II norms.
f) Kamarajar Salai does not fall under the heritage precincts and therefore its clearance is not mandated.
g) CMDA examined the plan submitted by PWD and it was observed that the total width of the proposed Arch is 20.08 meters and inner span of the Arch is 14.28 meters. It was noted that the proposed street alignment for Kamarajar Salai as per Second Master plan is 30 meters.
h. As the proposal satisfied the Development Regulations Parameters, Planning Clearance was issued subject to the following conditions:
1. NOC to be obtained from greater Chennai Corporation.
2. NOC to be obtained from the Commissioner of Police.
3. Confirmation from the Road owning department that there is no' any road widening proposal at this stretch of Kamarajar Salai.
4. Confirmation letter from PWD that the proposed 20.08m wide Arch shall be suffice even if the road is widened to 30.0m in future.
5. Construction must be taken up without interrupting the traffic movement in the road.
http://www.judis.nic.in 10
i) Upon examination of such application, it was found by Greater Chennai Corporation that the size of the proposed Arch exceeded 15 meters and therefore it was forwarded to CMDA on 28.03.2018. Upon examining the application, CMDA requested PWD to obtain necessary orders from the Government, Revenue Department for implementing such proposal as the Secretary, Revenue Department alone is the authority, competent to grant permission for construction of any structure on a public Road. Accordingly, based on the recommendations of the District Collector, Chennai, the Commissioner, Greater Chennai Corporation and the Commissioner of Police, Greater Chennai, the competent authority (i.e) Revenue Department, Government of Tamil Nadu, issued orders vide its G.O.Ms.No.301, Revenue and Disaster Management Department dated 21.08.2018, to the Greater Chennai Corporation and the Commissioner of Police, Greater Chennai to grant no objection for the construction of the Arch.
9. In view of the above, it has been contended by the State that the planning clearance given by the Member Secretary, Chennai Metropolitan Development Authority, Chennai/first respondent herein, is not illegal. http://www.judis.nic.in 10. It is submitted that thus the Revenue Department, Government 11 of Tamil Nadu which is the Competent Authority to grant permission for construction of any structures on Public Roads, has passed orders vide G.O.Ms. No. 301, to the Greater Chennai Corporation, as well as the Commissioner of Police, Greater Chennai, to grant No Objection Certificate for the construction of the arch.
11. It is contended that since the Arch is being erected by the Government, the provision applicable would be Section 58 of the Tamil Nadu Town and Country Planning Act, 1971 and the said provision envisages that when any Department of any State Government or local authority intends to carry out development of any land or building, the officer in charge shall inform in writing, the Planning Authority concerned, the intention to do so, giving full particulars thereof accompanied by such plans and documents at least 30 days before undertaking such developments. It is stated that if the Planning Authority, upon scrutinizing the proposed developments raised any objection, the Government can make modifications in the proposal for development or take a decision after considering the objections. In such cases, where the Government is undertaking development, the Planning Authority only issues Planning Clearance and not a Planning Permission as envisaged under Section 49 of the Act. A plain reading of section 49 would make it http://www.judis.nic.in 12 clear that it is applicable only to persons not being the State Government, Central Government or local authority, as the case may be.
12. As per land use records, the site under reference comes under CRZ-II. In exercise of powers delegated by the Coastal Regulatory Authority to CMDA, the proposal has been examined with reference to the CRZ-II norms which are found in Annexure X to the Development Regulations. As per Annexure I therein, it is prescribed that buildings shall be permitted only on the landward side of the existing roads of existing authorized structures. The Executive Engineer, Public Works Department, has certified that the service road from Marina Beach to Light House situated in between Kamarajar Salai and Marina Beach, is in existence prior to 1991 and it belongs to PWD, but under the maintenance of the Greater Chennai Corporation, as a Public Road. Therefore, CRZ - II norms were found to be satisfied.
13. It is submitted that while granting Planning Clearance, CMDA has clearly stipulated that NOC has to be obtained from the Commissioner of Police. As per G.O.Ms. No.301, Revenue and Disaster Management Department, dated 21.01.2018, orders have already been issued by the Government to the Commissioner of Police to grant NOC. This was on the http://www.judis.nic.in 13 basis of the report of the Commissioner of Police, Greater Chennai referred in the said Government Order, wherein, it is stated that the erection of the proposed Arch at the site would not be a hindrance to general public nor to free flow of transport. planning Clearance granted by the Chennai Metropolitan Development Authority, Chennai/first respondent herein, and hence it is contended that permission granted is valid and in accordance with the provisions of the Act and its Development Regulations.
14. The Government also places reliance on the judgment of a Hon'ble Division Bench of this Court in M.S.Arasa Kumar vs. Government of Tamil Nadu, reported in 2013 (1) CTC 533, wherein this Court rejected the challenge to the erection of "Tamil Nadu Legislative Assembly's Diamond Jubilee Memorial Arch" on the Rajaji Salai/Kamarajar Salai (Beach Road) between Fort St. George and War Memorial. According to the Government, the contentions raised in the present case, are more or less identical and the present challenge therefore should be rejected.
15. We heard Mr.V.Elangovan, learned counsel appearing for the petitioner and Mr.Vijay Narayan, learned Advocate General, for the State. http://www.judis.nic.in 16. The challenge to the construction of an arch, is primarily on the 14 following grounds:-
Construction of the arch is in, (a) violation of the Tamil Nadu Highways Act, 2001; (b) violation of the decision of the Hon'ble Supreme Court in A.Abdul Farook v. Municipal Council, Perambalur and others, reported in (2009) 15 SCC 351; (c) violation of the provision of Chennai City Municipal Corporation Act, 1919; and (d) violation of the Coastal Regulation Zone Notification issued by the Department of Environment, Forest and Wildlife.
17. The learned counsel for the petitioner has vehemently contended that the arch constructed is an encroachment and it is the duty of the Government to prevent any unauthorised encroachment/occupation on Highways.
18. It is to be noted that the Government is constructing an arch on a land maintained by Chennai Corporation, in which event Government cannot be said to be an encroacher on government land itself. The word 'encroachment' has not been defined under the Tamil Nadu Land Encroachment Act, 1905. (Encroachment has been only defined under Section 2(8) of the Tamil Nadu Highways Act, 2001. http://www.judis.nic.in 15
19. Section 2(8) of the Tamil Nadu Highways Act, 2001, defines encroachment, which reads as under:-
"Section 2(8) "encroachment" means any unauthorised occupation of any highway or land where the construction of a highway is undertaken or proposed to be undertaken or part thereof, and includes any unauthorised-
(a) erection of a building or any other structure, balcony, porch or projection on or over or overhanging the highway or part thereof; or
(b) occupation of such highway or such land, after the expriry of the period for which permission was granted for any temporary use under this Act; or
(c) excavation or embankments of any sort made or extended on such highways or part thereof or underneath such highway or part thereof;"
20. Section 26 of the Tamil Nadu Highways Act, 2001, deals with the prevention of unauthorised occupation of highway and the same reads as under:-
"26. Prevention of unauthorised occupation of highway.- (1) No person shall occupy or encroach on any highway within the highway boundaries.
(2) Notwithstanding anything contained in sub-section (1), the Highways Authority may, with the concurrence of the Collector and with due regard to the safety and convenience of traffic and subject to such conditions, and on payment of such rent or other charges as may be prescribed, grant permission, of a temporary nature, to any person-
(a) to make any temporary use of any highway in front of http://www.judis.nic.in 16 any building owned or occupied by him or make a temporary structure overhanging the highway; or
(b) to put up a temporary owning or tent, pandal or other similar erection or a temporary stall or scaffolding on any highway; or
(c) to deposit or cause to be deposited building materials, goods for sale or other articles on any highway for a specified period; or
(d) to make a temporary excavation on any highway for carrying out any repairs or improvements to building on lands adjoining such highway:
Provided that no such permission shall be deemed to be valid beyond a period of one year, unless it is expressly renewed by the Highways Authority.
(3) The permission granted under sub-section (2) shall clearly specify the date upto which and the purpose for which the occupation of the highway is authorised and the exact portion of the highway so permitted to be occupied, and shall also be accompanied by a plan or sketch of that portion of the highway. A copy of such permission shall be communicated to the Collector for the purpose of record.
(4) The person in whose favour such permission has been given shall produce the permit for inspection whenever called upon to do so by the Highways Authority, or any officer authorised by it in that behalf and shall, at the end of the period specified in the permit, vacate the portion of the highway occupied by him, after restoring it to the same state as it originally stood before the occupation by him.
(5) The Highways authority shall maintain a complete record of all such permissions granted, and shall also cause an inspection to be made in every case at the expiration of the period upto which such occupation has been permitted, to ensure that the portion of the highway has actually been vacated.
(6) The permission granted under sub-section (2) shall be in such form and subject to such conditions as may be prescribed."
http://www.judis.nic.in 17
21. According to the learned counsel for the petitioner, since this arch is on a highway, it will have the effect of impeding the movement of traffic, as well as pedestrians, and further arch has been erected on the pavement on the highway and therefore, squarely falls within the definition of 'encroachment' as defined under the Tamil Nadu Highways Act, 2001.
22. This Court directed the State Government to furnish a list of highways maintained by the Highways Department, Chennai and the same was produced before this Court. The entire list reads as under:-
HIGHWAYS DEPARTMENT LIST OF HIGHWAYS ROADS WITH IN GREATER CHENNAI CORPORATION LIMT (Length in Km) Sl.No Name of the road Division Classi- Length fication National Chennai City 1 GST Road Km 0/0-17/8 Highways/Ur 17.80 Roads ban Limit National Grand Western Trunk Chennai City 2 Highways/Ur 13.20 Road Roads ban Limit National Chennai City 3 GNT Road Km 0/8-11/4 Highways/Ur 10.60 Roads ban Limit Inner Ring Road Km 0/0- Chennai City State 4 25.20 25/2 Roads Highways http://www.judis.nic.in 5 East Coast Road km 11/8- Chennai City State 15.20 18 Sl.No Name of the road Division Classi- Length fication 27/0 Roads Highways Rajiv Gandhi Salai (OMR) Chennai City State 6 13.90 km 13/0-26-9 Roads Highways Pallavaram Thorapakkam Chennai City State 7 4.12 Road km 6/5-10-620 Roads Highways Southern Sector Inner Chennai City State 8 5.00 Ring Road Km 0/0-5/0 Roads Highways Marmalong Bridge Chennai City State 9 Irumbuliyur road km 5/0- 6.70 Roads Highways 11/7 Mount Medavakkam Road Chennai City State 10 3.80 km 0/0-3/8 Roads Highways Velacherry Bye-Pass road Chennai City State 11 1.90 km 0/0-1/9 Roads Highways Taramani Link road km Chennai City State 12 3.60 0/0-3/6 Roads Highways Medavakkam-
Sholinganallur - Chennai City State
13 3.90
Kudimiyandi thoppu road Roads Highways
km 2/8 - 6/7
Madipakkam - Vellachery Chennai City Major
14 3.10
Road km 0/0-3/1 Roads District Road
Taramani - Perunkudi Chennai City Major
15 2.01
road km 0/0-2-01 Roads District Road
Ullagaram-
Chennai City Other
16 Puzhuthivakkam Road km 1.20
Roads District Road
0/0 - 1/2
Nanganallur Road Chennai City Other
17 2.30
Km.0/0-2/3 Roads District Road
Chidambaram store road Chennai City Other
18 0.70
km 0/0 - 0/7 Roads District Road
GST LOOP road km 2/5 - Chennai City Other
19 2.90
5/4 Roads District Road
km.9/2 of Marmalong
Bridge-Irumbuliyur road Chennai City Other
20 1.00
to S.Kolathur Road Roads District Road
km.0/0 - 1/0
21 Interior Roads in Chennai City Other 1.15
http://www.judis.nic.in
19
Sl.No Name of the road Division Classi- Length
fication
Highways Campus Roads District Road
Thirumangalam
State
22 Mugapper road km.0/0- Thiruvallur 2.33
Highways
2/325
Chennai-Thiruthani -
State
23 Renigunta road Km.74/4- Thiruvallur 7.20
Highways
81/6 SHU-148
Mount Poonammallee State
24 Thiruvallur 7.40
road Km.0/0-7/4 (SH-55) Highways
Chennai Ennore road
State
25 Express way road Thiruvallur 10.40
Highways
Km.8/0-18/4
Chennai Ennore road State
26 Thiruvallur 10.40
Km.8/0-18/4 (SH-114) Highways
Thiruvottriyur Ponneri
State
27 Pancheety road Km.0/0- Thiruvallur 7.50
Highways
7/5 (SH-56)
Manali oil Refinery road Thiruvallur / State
28 5.70
km 0/0-5/7 NHAI Highways
Madhavaram Redhills
State
29 road Km.0/0-7/4 (SH- Thiruvallur 7.40
Highways
111)
Vanagaram - Ambattur -
State
30 Puzhal road Km.2/4-14/6 Thiruvallur 12.20
Highways
(SH-205)
Kodambakkam
State
31 Sriperumbudur road Thiruvallur 5.00
Highways
Km.0/0-5/0 (SH-113)
Kodambakkam
State
32 Sriperumbudur road Chengalpattu 1.70
Highways
Km.5/0-6/7 (SH-113)
Basin road Km.0/0-1/8 Major
33 Thiruvallur 1.80
(MD-1022) District Road
Manali - Mathur raod Major
34 Thiruvallur 5.70
Km.0/0-5/7 (MD-1018) District Road
Madhuravoyal -
Major
35 Valasaravakkam road Thiruvallur 2.90
District Road
Km.0/0-2/9 (MD-1021)
http://www.judis.nic.in 36 KS road to MP road (Via) Thiruvallur Major 3.00
20
Sl.No Name of the road Division Classi- Length
fication
Valluvar Salai Km.0/0-
District Road
3/0 (MD-1020)
Lakshmipuram - Puzhal
Major
37 road Km.0/0-3/0 (MD- Thiruvallur 3.00
District Road
1019)
Chinnasekkadu road Other
38 Thiruvallur 1.80
Km.0/0-1/8 District Road
Vada Perumbakkam
Other
39 Chettimedu Gnayiru road Thiruvallur 4.00
District Road
Km.6/2-10/2
Puthagaram road Other
40 Thiruvallur 2.14
Km.0/0-2/140 District Road
Oragadam road Km.0/0- Other
41 Thiruvallur 1.80
1/8 District Road
Ariyalur Velangadu road Other
42 Thiruvallur 6.40
Km.0/0-6/4 District Road
Other
43 AVP road to Manali Thiruvallur 3.40
District Road
TPP road to
Other
44 Sadayankuppam road at Thiruvallur 2.91
District Road
Km.0/0-2/910.
AVP road to Vichoor road
Other
45 (via) Kanniyampettai Thiruvallur 2.00
District Road
Km.0/0-2/0
KS road to MP road (via)
Other
46 Anuradha Paint road Thiruvallur 1.90
District Road
Km.0/0-1/9
KS road to MP road (via)
Other
47 Poothapedu road Thiruvallur 1.70
District Road
Km.0/0-1/7
Km.1/8 of KS road to MP
road (via) Valluvar Nagar Other
48 Thiruvallur 1.40
to Ramapuram road District Road
Km.0/0-1-4
Perumbur cross road at Other
49 Thiruvallur 0.20
Km.0/0-0/2 District Road
50 Kodambakkam - Chengalpattu Major 2.40
Sriperumbudur Road to District Road
http://www.judis.nic.in
Manappakkam (via)
21
Sl.No Name of the road Division Classi- Length
fication
Kolappakkam (MD 1026)
Km.3/2-5/6
Mount - Poonamalle Road
Other
51 to Mugalivakkam Km.0/0 Chengalpattu 1.00
District Raod
- 1/0
Kodambakkam -
Sriperumbudur Raod to Other
52 Chengalpattu 2.30
Mugalivakkam Km.0/0- District Road
2/3
Total Length of Highways roads With in
268.26
GCC limit
23. A perusal of the above list would show that Kamarajar Salai which is from Reserve Bank of India to Light House, is not a State Highway or a Major District Road or other District Road. The entire list extracted supra, shows that Kamarajar Salai in which the arch is being constructed, does not come within the purview of the Highways Department and therefore, it is not a highway.
24. Since the road, on which the an arch has been constructed, is not on a highway, the judgment of the Hon'ble Supreme Court in A.Abdul Farook v. Municipal Council, Perambalur and others, reported in (2009) 15 SCC 351, relied on by the petitioner, is not applicable. Paragraph No.2 of the said judgment would reflect that the Hon'ble Supreme Court dealt with the interpretation and application of Section 26 http://www.judis.nic.in 22 of the Tamil Nadu Highways Act, 2001. Paragraph Nos.2 and 11 would again show that the Hon'ble Supreme Court dealt only with the provisions of violation of the Tamil Nadu Highways Act, 2001.
25. The primary contention of the State Government in the reported judgment was that the Government had the power to issue a notification, under the Tamil Nadu Highways Act, 2001 for construction of an arch. This contention was negatived by the judgment of the Hon'ble Supreme Court, in paragraph No.13, is hereunder:-
"13. Laying emphasis upon Section 2(8) and Section 26 of Tamil Nadu Highways Act, learned counsel for Petitioner contended that as per these provisions, no person including the Government is permitted to put up any permanent structure on the State Highway under the control of Highways Department and the Highways Authority has power to grant permission only to have a temporary structure like tent, pandal or other similar erection or a temporary stall for a specified period i.e. not more than one year and hence, any permanent structure like Arch is totally impermissible and that the Government has totally ignored the provisions of Tamil Nadu Highways Act."
26. This judgment, therefore cannot be extended to all the roads within the State of Tamil Nadu. The contention of the petitioner that the ratio of the judgment of the Hon'ble Supreme Court in A.Abdul Farook v. Municipal Council, Perambalur and others, reported in (2009) 15 SCC http://www.judis.nic.in 23 351, to be extended all the Districts in Tamil Nadu, does not merit acceptance.
27. The question as to whether the arch, on a road, which is not on a highway but maintained by the Corporation, is in violation of the Chennai City Municipal Corporation Act, 1919, is no longer res-integra and is squarely covered by the judgment of a Hon'ble Division Bench of this Court in M.S.Arasa Kumar vs. Government of Tamilnadu, represented by its Chief Secretary, Chennai, reported in 2013 (1) CTC 533.
28. Section 220 of the Chennai City Municipal Corporation Act, 1919, deals with Prohibition against obstructions in streets and Section 223 of the Chennai City Municipal Corporation Act, 1919, deals with power to allow certain projections and erections and the same reads as under:-
"220. Prohibition against obstructions in streets.—No one shall build any wall or erect any fence or other 5 [obstruction or projection or make any encroachment] in or over any street 6 [or any public place, the control of which is vested in the corporation] except as hereinafter provided.
223. Power to allow certain projections and erections.— (1) The Commissioner may grant a licence, subject to such conditions and restrictions as he may think fit, to the owner or occupier http://www.judis.nic.in of any premises— 24
(a) to put up or continue to have verandas, balconies, sun-shades, weather frames and the like, to project over a street. or
(b) in streets in which the construction of arcades has been sanctioned by the council, to put up or continue to have an arcade, or 4
(c) to construct or to continue to have any step or drain-covering necessary for access to the premises.
(2) With the concurrence of the commissioner of police, the commissioner may grant a licence. Subject to such conditions and restrictions as he may think, fit, for any temporary construction in any street or in any public place, the control of which is vested in the corporation.
(3) No licence shall be granted under sub-section (1) if the projection or construction is likely to be injurious to health or cause public inconvenience or otherwise materially interfere or result in material interference with the use of the road as such.
(4) On the expiry of any period for which a licence has been granted under this or after due communication of an order of suspension or revocation of such licence, the commissioner may, without notice, cause any projection or construction put up under sub-section (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner provided in section 387 from the person to whom the licence was granted.
(5) The council shall have power to lease road sides and street margin vested in the corporation for occupation on such terms and conditions and the such period as it may fix :
Provided that no such lease for any term exceeding three years shall be valid unless the sanction of the State Government therefore shall have been first obtained : Provided further that if the State Government consider that any occupation of a road side or street margin under a lease granted by the council under this section is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road side or street margin as such, the State Government may http://www.judis.nic.in direct the council to cancel or modify the lease and the council shall 25 thereupon cancel or modify the lease accordingly. "
29. A perusal of the counter affidavit would show that adequate measures have been taken and that construction of the arch will not cause any hindrance to the traffic. There are no intermediate pillars which affect the flow of traffic. The photographs produced before us, also shows that there is no major impediment for the movement of pedestrians also. The Hon'ble Division Bench in M.S.Arasa Kumar vs. Government of Tamil Nadu, reported in 2013 (1) CTC 533, held as follows:-
"22. Under Section 220 of Chennai City Municipal Corporation Act, no one has got right to build any wall or erect any fence or other obstruction or projection or make any encroachment in or over any street. Section 220 thus prohibits obstruction or projection in streets. According to the Government, the proposed Arch in Rajaji Salai has been planned in such a way and has been designed structurally that there would not be any intermediate pillar/structure in the middle of the road and it will not pose any hindrance to the movement of vehicles. The width of Rajaji Salai is 18.70 meters and the said width will be maintained even after the construction of Arch to facilitate free flow of undivided four lane carriageway traffic as of now. It is stated that the clear height of Arch from the floor surface of the road will be 6.50 meters which is higher than the stipulated mandatory clearance required for structures like Arch. Before us the structural design of Arch has been produced. On a perusal of the design of Arch, it is seen that pillars supporting the Arch on both sides have been proposed to be located on the pavement of both sides of road.
http://www.judis.nic.in There will be an opening inside the pillars on both sides to facilitate the 26 pedestrian movement. It is stated that Arch has been designed based on the Confluence of Greek and Latin Architecture inspired by the design cues and intricate patterns of the Fort St. George. When the Arch has been structurally designed without any intermediate pillars in the middle of the road and if the Arch would not affect free flow of traffic or pedestrian movement, it cannot be said that the proposed Arch in Rajaji Salai would be an obstruction or encroachment on a public street. By passing a resolution according permission for construction of Arch, it cannot be said that the Corporation of Chennai has exceeded its jurisdiction. It is also pertinent to note that Writ Petitioner neither impleaded the Corporation of Chennai nor challenged the resolution dated 29.10.2012 according permission for construction of Arch."
30. M.S.Arasa Kumar's judgment would apply to the present case also. Tamil Nadu Legislative Assembly's Diamond Jubilee Memorial Arch is on Rajaji Salai/Kamarajar Salai, Beach Road, between Fort St.George and War Memorial. Arch which is constructed in the name of the Former Chief Minister, M.G.Ramachandran, is on the same road and on the same direction. The contention of the petitioner that the provision of Chennai City Municipal Corporation Act, is violated, therefore cannot be accepted.
31. Issue as to whether the arch is in violation of CRZ Notification has also to be answered against the petitioner. The notification passed by the Union of India, dated 06.01.2011, namely Coastal Regulation Zone Notification, Ministry of Environment and Forests (Department of http://www.judis.nic.in 27 Environment, Forests and Wildlife), does not completely prohibit, construction activities in all CRZ Zones. The coastal area has been divided into four zones, namely (i) CRZ-I, (ii) CRZ-II, (iii) CRZ-III and CRZ-IV, and have been classified, are as under:-
"7. Classification of the CRZ – For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:-
(i) CRZ-I,– A. The areas that are ecologically sensitive and the geomorphological features which play a role in the maintaining the integrity of the coast,-
(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50meters along the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;
(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserves;
(f) Salt Marshes;
(g) Turtle nesting grounds;
(h) Horse shoe crabs habitats;
(i) Sea grass beds;
(j) Nesting grounds of birds;
(k) Areas or structures of archaeological importance and heritage sites.
http://www.judis.nic.in B. The area between Low Tide Line and High Tide Line; 28
(ii) CRZ-II,-
The areas that have been developed upto or close to the shoreline.
Explanation.-For the purposes of the expression “developed area” is referred to as that area within the existing municipal limits or in other existing legally designated urban areas which are substantially built-up and has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage mains;
(iii) CRZ-III,-
Areas that are relatively undisturbed and those do not belong to either CRZ-I or II which include coastal zone in the rural areas (developed and undeveloped) and also areas within municipal limits or in other legally designated urban areas, which are not substantially built up. (iv.) CRZ-IV,-
A. the water area from the Low Tide Line to twelve nautical miles on the seaward side;
B. shall include the water area of the tidal influenced water body from the mouth of the water body at the sea upto the influence of tide which is measured as five parts per thousand during the driest season of the year.
(v) Areas requiring special consideration for the purpose of protecting the critical coastal environment and difficulties faced by local communities,- A. (i) CRZ area falling within municipal limits of Greater Mumbai;
(ii) the CRZ areas of Kerala including the backwaters and backwater islands;
(iii) CRZ areas of Goa.
B. Critically Vulnerable Coastal Areas (CVCA) such as Sunderbans region of West Bengal and other ecologically sensitive areas identified as under Environment (Protection) Act, 1986 and managed with the involvement of coastal communities including fisherfolk."
32. The norms for regulation of activities permissible under this http://www.judis.nic.in 29 notification, read as under:-
"8. Norms for regulation of activities permissible under this notification,-
(i) The development or construction activities in different categories of CRZ shall be regulated by the concerned CZMA in accordance with the following norms, namely:-
Note:- The word existing use hereinafter in relation to existence of various features or existence of regularisation or norms shall mean existence of these features or regularisation or norms as on 19.2.1991 wherein CRZ notification, was notified.
I. CRZ-I,-
(i) no new construction shall be permitted in CRZ-I except,-
(a) projects relating to Department of Atomic Energy;
(b) pipelines, conveying systems including transmission lines;
(c) facilities that are essential for activities permissible under CRZ-I;
(d) installation of weather radar for monitoring of cyclones movement and prediction by Indian Meteorological Department;
(e) construction of trans harbour sea link and without affecting the tidal flow of water, between LTL and HTL.
(f) development of green field airport already approved at only Navi Mumbai;
(ii) Areas between LTL and HTL which are not ecologically sensitive, necessary safety measures will be incorporated while permitting the following, namely:-(a) exploration and extraction of natural gas;
(b) construction of dispensaries, schools, public rain shelter, community toilets, bridges, roads, jetties, water supply, drainage, sewerage which are required for traditional inhabitants living within the biosphere reserves after obtaining approval from concerned http://www.judis.nic.in 30 CZMA.
(c) necessary safety measure shall be incorporated while permitting such developmental activities in the area falling in the hazard zone;
(d) salt harvesting by solar evaporation of seawater;
(e) desalination plants;
(f) storage of non-hazardous cargo such as edible oil, fertilizers and food grain within notified ports;
(g) construction of trans harbour sea links, roads on stilts or pillars without affecting the tidal flow of water. II. CRZ-II,-
(i) buildings shall be permitted only on the landward side of the existing road, or on the landward side of existing authorized structures;
(ii) buildings permitted on the landward side of the existing and proposed roads or existing authorized structures shall be subject to the existing local town and country planning regulations including the ‘existing’ norms of Floor Space Index or Floor Area Ratio: Provided that no permission for construction of buildings shall be given on landward side of any new roads which are constructed on the seaward side of an existing road:
(iii) reconstruction of authorized building to be permitted subject with the existing Floor Space Index or Floor Area Ratio Norms and without change in present use;
(iv) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II appended to this notification and facilities for regasification of Liquefied Natural Gas subject to the conditions as mentioned in sub-paragraph (ii) of paragraph 3;
(v) desalination plants and associated facilities;
(vi) storage of non-hazardous cargo, such as edible oil, http://www.judis.nic.in fertilizers and food grain in notified ports; 31
(vii) facilities for generating power by non-conventional power sources and associated facilities; III. CRZ-III,-
A. Area upto 200mts from HTL on the landward side in case of seafront and 100mts along tidal influenced water bodies or width of the creek whichever is less is to be earmarked as “No Development Zone (NDZ)”,-
(i) the NDZ shall not be applicable in such area falling within any notified port limits;
(ii) No construction shall be permitted within NDZ except for repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification including facilities essential for activities; Construction/reconstruction of dwelling units of traditional coastal communities including fisherfolk may be permitted between 100 and 200 metres from the HTL along the seafront in accordance with a comprehensive plan prepared by the State Government or the Union territory in consultation with the traditional coastal 11 communities including fisherfolk and incorporating the necessary disaster management provision, sanitation and recommended by the concerned State or the Union territory CZMA to NCZMA for approval by MoEF;
(iii) however, the following activities may be permitted in NDZ –
(a) agriculture, horticulture, gardens, pasture, parks, play field, and forestry;
(b) projects relating to Department of Atomic Energy;
(c) mining of rare minerals;
(d) salt manufacture from seawater;
(e) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II;
(f) facilities for regasification of liquefied natural gas subject to conditions as mentioned in subparagraph (ii) of paragraph 3;
http://www.judis.nic.in (g) facilities for generating power by non conventional 32 energy sources;
(h) Foreshore facilities for desalination plants and associated facilities; (i) weather radars;
(j) construction of dispensaries, schools, public rain shelter, community toilets, bridges, roads, provision of facilities for water supply, drainage, sewerage, crematoria, cemeteries and electric sub-station which are required for the local inhabitants may be permitted on a case to case basis by CZMA;
(k) construction of units or auxiliary thereto for domestic sewage, treatment and disposal with the prior approval of the concerned Pollution Control Board or Committee;
(l) facilities required for local fishing communities such as fish drying yards, auction halls, net mending yards, traditional boat building yards, ice plant, ice crushing units, fish curing facilities and the like;
(m) development of green field airport already permitted only at Navi Mumbai.
B. Area between 200mts to 500mts,-
The following activities shall be permissible in the above areas;
(i) development of vacant plot in designated areas for construction of hotels or beach resorts for tourists or visitors subject to the conditions as specified in the guidelines at Annexure-III ;
(ii) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II;
(iii) facilities for regasification of liquefied natural gas subject to conditions as mentioned in sub-paragraph (ii) of paragraph 3;
(iv) storage of non-hazardous cargo such as, edible oil, fertilizers, food grain in notified ports;
(v) foreshore facilities for desalination plants and associated facilities;
(vi) facilities for generating power by non-conventional http://www.judis.nic.in energy sources;33
(vii) construction or reconstruction of dwelling units so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and goathans. Building permission for such construction or reconstruction will be subject to local town and country planning rules with overall height of construction not exceeding 9mts with two floors (ground + one floor);
(viii) Construction of public rain shelters, community toilets, water supply drainage, sewerage, roads and bridges b y CZMA who may also permit construction of 12 schools and dispensaries for local inhabitants of the area for those panchayats, the major part of which falls within CRZ if no other area is available for construction of such facilities;
(ix) reconstruction or alteration of existing authorised building subject to sub-paragraph (vii), (viii);
(x) development of green field airport already permitted only at Navi Mumbai.
(IV) In CRZ-IV areas,-
The activities impugning on the sea and tidal influenced water bodies will be regulated except for traditional fishing and related activities undertaken by local communities as follows:-
(a) No untreated sewage, effluents, ballast water, ship washes, fly ash or solid waste from all activities including from aquaculture operations shall be let off or dumped. A comprehensive plan for treatment of sewage generating from the coastal towns and cities shall be formulated within a period of one year in consultation with stakeholders including traditional coastal communities, traditional fisherfolk and implemented;
(b) Pollution from oil and gas exploration and drilling, mining, boat house and shipping;
(c) There shall be no restriction on the traditional fishing and allied activities undertaken by local communities."
http://www.judis.nic.in 33. It is also pertinent to mention that the Coastal Regulation Zone, 34 has been defined, as under:-
"(ii) CRZ shall apply to the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies that are connected to the sea and the distance upto which development along such tidal influenced water bodies is to be regulated shall be governed by the distance upto which the tidal effects are experienced which shall be determined based on salinity concentration of 5 parts per thousand (ppt) measured during the driest period of the year and distance upto which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans (hereinafter referred to as the CZMPs)."
40. The prohibit activities within CRZ, reads as under:-
"3. Prohibited activities within CRZ,- The following are declared as prohibited activities within the CRZ,-
(i) Setting up of new industries and expansion of existing industries except,-
(a) those directly related to waterfront or directly needing foreshore facilities;
Explanation: The expression “foreshore facilities” means those activities permissible under this notification and they require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like.;
(b) projects of Department of Atomic Energy;
(c) facilities for generating power by non-conventional energy sources and setting up of desalination plants in the areas not classified as CRZ-I(i) based on an impact assessment study including social impacts.;
(d) development of green field Airport already permitted only at Navi Mumbai;
(e) reconstruction, repair works of dwelling units of local http://www.judis.nic.in communities including fishers in accordance with local town and country 35 planning regulations.
(ii) manufacture or handling oil storage or disposal of hazardous substance as specified in the notification of Ministry of Environment and Forests, No. S.O.594 (E), dated the 28th July 1989, S.O.No.966(E), dated the 27th November, 1989 and GSR 1037 (E), dated the 5th December ,1989 except,-
(a) transfer of hazardous substances from ships to ports, terminals and refineries and vice versa;
(b) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II appended to this notification and facilities for regasification of Liquefied Natural Gas (hereinafter referred to as the LNG) in the areas not classified as CRZ- I(i) subject to implementation of safety regulations including guidelines issued by the Oil Industry Safety Directorate in the Ministry of Petroleum and Natural Gas and guidelines issued by MoEF and subject to further terms and conditions for implementation of ameliorative and restorative measures in relation to environment as may be stipulated by in MoEF. Provided that facilities for receipt and storage of fertilizers and raw materials required for manufacture of fertilizers like ammonia, phosphoric acid, sulphur, sulphuric acid, nitric acid and the like, shall be permitted within the said zone in the areas not classified as CRZ-I(i).
(iii) Setting up and expansion of fish processing units including warehousing except hatchery and natural fish drying in permitted areas:
(iv) Land reclamation, bunding or disturbing the natural course of seawater except those,-
(a) required for setting up, construction or modernisation or expansion of foreshore facilities like ports, harbours, jetties, wharves, quays, slipways, bridges, sealink, road on stilts, and such as meant for defence and security purpose and for other facilities that are essential for activities permissible under the notification; http://www.judis.nic.in (b) measures for control of erosion, based on scientific including 36 Environmental Impact Assessment (hereinafter referred to as the EIA) studies
(c) maintenance or clearing of waterways, channels and ports, based on EIA studies;
(d) measures to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and freshwater recharge based on carried out by any agency to be specified by MoEF.
(v) Setting up and expansion of units or mechanism for disposal of wastes and effluents except facilities required for,-
(a) discharging treated effluents into the water course with approval under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(b) storm water drains and ancillary structures for pumping;
(c) treatment of waste and effluents arising from hotels, beach resorts and human settlements located in CRZ areas other than CRZ-I and disposal of treated wastes and effluents;
(vi) Discharge of untreated waste and effluents from industries, cities or towns and other human settlements. The concerned authorities shall implement schemes for phasing out existing discharge of this nature, if any, within a time period not exceeding two years from the date of issue of this notification.
(vii) Dumping of city or town wastes including construction debris, industrial solid wastes, fly 4 ash for the purpose of land filling and the like and the concerned authority shall implement schemes for phasing out any existing practice, if any, shall be phased out within a period of one year from date of commencement of this notification.
Note:-The MoEF will issue a separate instruction to the State Governments and Union territory Administration in respect of preparation of Action Plans and their implementation as also monitoring including the time schedule thereof, in respect of paras (v), (vi) and (vii). http://www.judis.nic.in (viii) Port and harbour projects in high eroding stretches of the 37 coast, except those projects classified as strategic and defence related in terms of EIA notification, 2006 identified by MoEF based on scientific studies and in consultation with the State Government or the Union territory Administration.
(ix) Reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities.
(x) Mining of sand, rocks and other sub-strata materials except,-
(a)those rare minerals not available outside the CRZ area,
(b) exploration and exploitation of Oil and Natural Gas.
(xi) Drawl of groundwater and construction related thereto, within 200mts of HTL; except the following:-
(a) in the areas which are inhabited by the local communities and only for their use.
(b) In the area between 200mts-500mts zone the drawl of ground water shall be permitted only when done manually through ordinary wells for drinking, horticulture, agriculture and fisheries and where no other source of water is available.
Note:-Restrictions for such drawl may be imposed by the Authority designated by the State Government and Union territory Administration in the areas affected by sea water intrusion.
(xi) Construction activities in CRZ-I except those specified in para 8 of this notification.
(xiii) Dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation and other such purpose.
(xiv) Facilities required for patrolling and vigilance activities of marine/coastal police stations."
34. The petitioner has not given any material to establish that the construction of the arch is in a Coastal Regulation Zone. The area in http://www.judis.nic.in 38 which the arch is coming, is developed can at best come in CRZ - II. The activities permissible in CRZ - II (extracted supra), would show that there is no impediment, in construction of the arch.
35. The learned Advocate General also produced before us, a copy of the permission sought for by the State Government from Chennai Metropolitan Development Authority, for planning clearance under Section 49 of the Tamil Nadu Country Town and Country Planning Act, 1971. Section 49 of the said Act, reads as under:-
"49. Application for permission.- (1) Except as otherwise provided by rules made in this behalf, any person not being any State Government or the Central Government or any local authority intending to carry out any development on any land or building on or after the date of the publication of the resolution under sub-section (2) of section 19 or of the notice in the Tamil Nadu Government Gazette under section 26, shall make an application in writing to the appropriate planning authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed. (2) The appropriate planning authority shall, in deciding whether to grant or refuse such permission, have regard to the following matters, namely:- (a) the purpose for which the permission is required; (b)the suitability of the place for such purpose; (c) the future development and maintenance of the planning area (3) When the appropriate planning authority refuses to grant a permission to any person, it shall record in writing the reasons for such refusal and furnish to that person, on demand, a brief statement of the same."
http://www.judis.nic.in 39
36. Planning Clearance given by the Member Secretary, Chennai Metropolitan Development Authority, dated 21.08.2018, is extracted hereunder:-
"Chennai Metropolitan Development Authority Planning Clearance (Sec 49 of T & C P. Act 1971) PERMIT No.C/12027/7A&B/2018 Date of Permit:21.08.2018 The Executive Engineer, File No.BC1/C4/5673/18 PWD, Building Construction Division I, Chepauk, Name of Applicant with Address Chennai - 600 005.
Date of Application 14.05.2018
Nature of Development :
Site Address Construction of an Arch to commemorate the birth
Centenary year for the former Chief Minister Division No of Tamil Nadu Dr.MGR across the Kamarajar Salai in between the exit gate of the PWD campus and Presidency College, Chennai comprised in T.S.No.2614, Block No.44 of Triplicane Village.
PERMISSION is granted to the Arch construction according to the authorised copy of the plan attached hereto and subject to the condition overleaf.
3. The permit expires on 20.08.2013 the building construction work should be completed as per plan before the expiry date. If it is not possible to Complete the construction, request for renewing the plainning permit should be submitted to Chennai Metropolitan Development Authority before the expiry date. If it is not renewed before the said date fresh. Planning http://www.judis.nic.in 40 Permission application/has to be submitted for continuing the construction work when the Development Control Rules that may be currently in force at that time will be applicable. If the construction already put up is in deviation to the approved plan and in violation of rules. Planning permit will not be renewed.
For MEMBER SECRETARY"
37. In any event, Section 58 of the Tamil Nadu Country Town and Country Planning Act, 1971, stipulates that for any development undertaken on behalf of any State Government or Central Government or local authority, as the case may be no permission is required and infact it can do so after informing in writing to the Planning Authority concerned, the intention do so, thereby particulars thereof and that there is no objection for the development to go on. Section 58 of the said Act, reads as under:-
"58. Development undertaken on behalf of any State Government or Central Government or local authority.- (1) When any department of any State Government or the Central Government or any local authority intends to carry out development of any land or building, the officer-in- charge thereof shall inform, in writing, the planning authority concerned the intention to do so, giving full particulars thereof, and accompanied by such plans and documents atleast thirty days before undertaking such development:
Provided that in case where any local authority is the local planning authority under this Act, it shall inform the fact of any such proposed development to the regional planning authority concerned http://www.judis.nic.in within whose jurisdiction such local authority is situated.41
(2) Where a planning authority concerned or the regional planning authority concerned, as the case may be, raised any objection to the proposed development on the ground that the development is not in conformity with the provisions of any development plan under preparation or for any other material consideration, the officer of the State Government, Central Government or any local authority, as the case may be shall-
(i) either make necessary modifications in the proposals for development to meet the objections raised by the planning authority concerned, or
(ii) submit the proposals for development together with the objections raised by the planning authority concerned to the Government for decision.
(3) The Government, on receipt of the proposal for development together with the objections of the planning authority concerned shall, in consultation with the Director, either approve the proposals with or without modifications or direct the officer to make such modifications in the proposals as they consider necessary in the circumstances and the officer concerned shall be bound to make such modifications as proposed by the Government."
38. Development has been defined under Section 2(13), reads as under:-
"(13) ‘development” means the carrying out of all or any of the works contemplated in a regional plan, master plan, detailed development plan or a new town development plan prepared under this Act, and shall include the carrying out of building, engineering, mining or other operations in, or over or under land, or the making of any material change in the use of any building or http://www.judis.nic.in land:42
Provided that for the purposes of this Act, the following operations or uses of land shall not be deemed to involve development of the land, that is to say,-
(a) the carrying out of any temporary works for the maintenance, improvement or other alteration of any building, being works which do not materially affect the external appearance of the building;
(b) the carrying out by a local authority of any temporary works required for the maintenance or improvement of a road, or works carried out on land within the boundaries of the road;
(c) the carrying out by a local authority or statutory undertaker of any temporary works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose;
(d) the use of any building or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such; and
(e) the use of any land for the purpose of agriculture, gardening or forest (including afforestation) and the use for any purpose specified in this clause of this proviso of any building occupied together with the land so used;"
39. A reading of Section 2(13) of the said Act, cannot be said to mean that just because construction of an arch is not mentioned in a regional plan or master plan or detailed development plan, the government would not be permitted to erect an arch. The construction of http://www.judis.nic.in 43 an arch and on a road, which does fall under the definition 'Highways', which is not an impediment to traffic, cannot be said to be in any event detrimental to the development plan.
40. In view of the above discussion, the contention of the learned counsel for the petitioner cannot be accepted. Therefore, instant writ petitions are dismissed. Consequently, the connected writ miscellaneous petitions are closed. No Costs.
[S.M.K., J.] [S.P., J.] 21.02.2019 Index: Yes Internet: Yes dm Note:
Issue order copy on 21.02.2019.
http://www.judis.nic.in 44 To
1.The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building, No.1, Gandhi Irwin Road, Egmore, Chennai - 600 008.
2.The Commissioner, Greater Chennai Corporation, Rippon Building, Chennai - 600 003.
3.Executive Engineer, Public Works Department, Building Construction Division-I, Chepauk, Chennai - 600 005.
4.The Member Secretary, Tamil Nadu State Coastal Zone Management Authority and Director of Environment, 1st Floor, Panagal Building, Saidapet, Chennai - 600 015.
5.The Joint Commissioner of Police, Traffic, Poonamalle High Road, Kilpauk, Chennai - 600 010.
6.The Chief Secretary, State of Tamil Nadu, Secretariat, Chennai - 600 009.
7.The Principal Secretary, Public Works Department, State of Tamil Nadu, Secretariat, Chennai - 600 009.
http://www.judis.nic.in 45
8.The Principal Secretary, Highways and Minor Ports Department, State of Tamil Nadu, Secretariat, Chennai - 600 009.
9.The Principal Secretary, Tamil Development and Information Department, State of Tamil Nadu, Secretariat, Chennai - 600 009.
10.Public Works Department, Rep. by its Executive Engineer, Building Construction Division-I, Chepauk, Chennai - 600 005.
http://www.judis.nic.in 46 S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
dm W.P.Nos.33760 and 30212 of 2018 and W.M.P.Nos.39192, 39193 and 35271 of 2018 21.02.2019 http://www.judis.nic.in