No.4, Veerapandi Sri Balaji v. The Executive Officer
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.07.2018
CORAM:
THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM W.P. No.26391 of 2017 & W.M.P.No.28049 of 2017 No.4, Veerapandi Sri Balaji Garden Peoples Welfare Association, Rep. by its President M.Durairaj, No.64, Sri Balaji Gardens, Press Colony Post, Coimbatore - 641 019.
.. Petitioner Vs.
1.The Executive Officer, No.04, Veerapandi Town Panchayat, Coimbatore - 641 019.
2.Srivari Builders, Rep. by its Proprietor, M.R.Rathindran, S/o.A.N.Ramamoorthy Naidu, No.3/12, Gandhi Nagar, K.Vadamadurai, Coimbatore - 641 017.
3.The Secretary, Municipal Administration, Water and Sewerage Board, Fort St. George, Chennai .
4.The Director, Town Panchayat, Kuralagam, Chennai.
5.The Assistant director, Town Panchayat, Collectorate Campus, Coimbatore District.
6.Press Colony Sri Balaji Gardens Kudiyerupor Murpoku Nala Sangam, Water Tank 1st Floor, 1st Street, Sri Balaji Gardens, Press Colony Post, Coimbatore - 19.
.. Respondents
(R-6 impleaded as per order dated 20.12.2017 in W.M.P.No.35265 of 2017 in W.P.No.26391 of 2017) PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari to call for the records of the first respondent notice dated 06.09.2017 and quash the same as illegal, arbitrary and non est in law.
For Petitioner : Mr.C.Veeraraghavan For Respondents : Mr.S.Diwakar Special Government Pleader for R1 Mr.V.Ramesh for R2 Mr.N.Inbanathan Additional Government Pleader for R3 to R5 Mr.M.Devaraj for R6
O R D E R
The writ petitioner association has come up before this Court for issuance of Writ of Certiorari to quash the notice of the first respondent dated 06.09.2017, thereby informing the residents of Sri Balaji Nagar that illegal pipelines would be removed.
2. According to the petitioner, the second respondent had promoted a layout and constructed independent residential group houses numbering 389, after obtaining necessary permission from the first respondent in the year 2000. The purchasers have been in possession and enjoyment of the property since May 2002. The petitioner would claim that the purchasers had entered into an agreement with the second respondent, thereby, the second respondent has agreed to construct centralized septic tanks and when they have been using the centralized septic tanks, the first respondent served a letter dated 07.07.2015 stating that the common septic tanks constructed by the second respondent was in contravention of the approved plan and directed the purchasers to construct individual septic tanks and the order was challenged by the purchasers in W.P.Nos.
30805 of 2015 and 25564 of 2015 etc.
septic tank or some other proposal, which can be considered by the first respondent.
3. The grievance of the petitioner is that pursuant to the order in the Writ Petitions, the members of the petitioner, who were not in a position to construct a separate septic tank made representations to the first respondent.
However, without considering the representations, the impugned order has been passed.
4. The first respondent has filed a counter refuting the allegations of the petitioner and further stated that the first respondent granted approval to the second respondent for constructing group houses on conditions that the owners have to make arrangements for drinking water facility, light facility and road facility and they have to further make arrangements for disposal of the drainage on their own. But, in violation of the layout approval conditions, the house owners, instead of constructing separate septic tanks have disposed their sewerage water directly into rain water harvesting tank, hence, the first respondent issued notice under Sections 26 and 33 of the Tamil Nadu Public Health Act, directing the house owners to construct individual septic tanks within a period of 90 days from the date of receipt of the notice.
Subsequently, out of 389 house owners 172 constructed septic tanks in their own premises and the Writ Petition filed by the 114 owners were disposed of with a direction to complete construction of individual septic tanks within a specific period. Instead of complying the order of the High Court, they approached the first respondent by a letter dated 13.05.2016 with a prayer to keep pending the action against non construction of the individual septic tanks, till the implementation of the undergone drainage system. Hence, further notice was issued on 26.09.2017 by the first respondent to the individuals concerned and the same was acknowledged by them on 29.09.2017, but they did not challenge the notice. Hence, the petitioner association has no locus standi to maintain the Writ Petition.
5. Heard Mr.C.Veeraraghavan, learned counsel for the petitioner;
Mr.S.Diwakar, learned Special Government Pleader for the first respondent; Mr.V.Ramesh, learned counsel for the second respondent;
Mr.N.Inbanathan, learned Additional Government Pleader for the respondents 3 to 5; Mr.M.Devaraj, learned counsel for the sixth respondent and perused the materials available on record.
6. In the case on hand, it is not in dispute that the second respondent constructed group houses in the year 2002 and 2003 in the two phases totally 389 houses. The stand of
the first respondent is that in the approved plan no permission was granted to construct a centralized septic tank and according to the first respondent, the drainage let into the rain harvesting tank has caused public nuisance which necessitated the first respondent to issue notice under the Public Hearth Act.
7. A perusal of the records would reveal that similar impugned notice dated 07.07.2015 was challenged by the owners, however, this Court was not inclined to set aside the notice, but made the following observation:- "11. Accordingly, instead of setting aside the impugned order, the petitioners are directed to submit a representation with undertaking to the first respondent, clearly setting out, as to within what time, they will be able to complete the construction of individual septic tank. If anyone of the petitioner is unable to construct individual septic tank for any valid reason, then, they shall mention the same in their representation, which shall be considered by the first respondent.
The above directions shall be complied by the petitioners within a period of eight weeks from the date of receipt of a copy of this order and thereafter the first respondent shall pass appropriate orders considering those individual requests. In all other cases, the petitioners should comply with the impugned orders, for which this Court is of the view that they should be granted minimum of four months time, to comply with the direction, and complete the construction of individual septic tank.
12. With the above directions, these Writ Petitions are disposed of. Till the above proceedings are completed no coercive action shall be taken against the petitioners. No costs. Consequently, connected miscellaneous petitions are closed."
8. It is the submission of the learned counsel for the petitioner that the area is situated in the rocky place and hence, the owners could not construct individual septic tanks. I find no substance in the contention for the reason that an Advocate Commissioner appointed by this Court submitted a report, which shows that individual septic tanks could be constructed and the relevant paragraph is extracted hereunder:-
Summary of observations:- "(i) The houses in which no septic tanks have been constructed have sufficient space to construct septic tanks though not of any standard measurements.
(ii) Majority of the residents in the Southern portion have not constructed the septic tank and majority of the residents of the Northern portion have constructed the septic tank. (iii) In the southern portion when the terrain is said to be very rocky there are water tanks which are even 8 feet deep.
(iv) Given the fact that the water tanks are of varied sizes from 3 feet to 8 feet and the fact that septic tanks have been constructed / under construction in the souther portion, the version that the terrain is rockey and cannot be dug beyond 3 feet is unbelievable.
(v) The septic tanks constructed have no walls separating the chambers as found in traditional septic tanks. There is no concrete flooring also in the said tanks and fecal matter is allowed to percolate into the ground."
9. It is contended by the learned counsel for the respondents that it is not the common cause of action and individual notices sent to the owners have not been assailed and hence, the present Writ Petition filed by the Association is not maintainable. I find force in the stand taken by the respondents.
10. In the light of the above facts, this Court finds no merit in the Writ Petition. Accordingly, the Writ Petition fails and the same is dismissed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
Sd/- Assistant Registrar(CS) //True Copy// Sub Assistant Registrar r n s To 1.The Executive Officer, No.04, Veerapandi Town Panchayat, Coimbatore - 641 019.
2.The Secretary, Municipal Administration, Water and Sewerage Board, Fort St. George, Chennai .
3.The Director, Town Panchayat, Kuralagam, Chennai.
4.The Assistant director, Town Panchayat, Collectorate Campus, Coimbatore District.
+1cc to Mr.M.Devaraj , Advocate SR.No.49092 +1cc to Mr.c.Veeraraghavan , Advocate SR.No.49268 +1 CC TO GOVERNMENT PLEADER SR.NO.49342 W.P. No.26391 of 2017 & W.M.P.No.28049 of 2017 ASK(25/09/2018)