(Prayer in W.P.No.32596 of 2014: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus, calling for the records of the 3rd respondent by proceedings in VaPa/EVAA3/Co.73/66m/06 dated 14.02.2006 and VaPa/EVAA3/Co.73/25m dated 22.01.2007 ending with the order of the 4th respondent in letter No 58/2007 dated 28.05.2007 and Quash the same and consequently direct the 2nd respondent to consider the representation of the Petitioner Association dated 24.08.2010.)
Common Order
Dr. Anita Sumanth, J.
1. This is a batch of writ petitions involving the interests of owners of residential units in ‘Shruthi Enclave’ at Singanallur, Coimbatore. There are three main Writ petitions espousing common causes, filed by the Shruthi Enclave Welfare Association (in short, ‘Association’) and the remaining 72 Writ petitions have been filed by individual owners of the houses seeking to quash notices dated 04.09.2018 issued under Section 296 (1) of the Coimbatore Corporation Act, 1981 and Section 296 (2) of the Coimbatore City Municipal Corporation Act, 1987 whereunder, individual units in Shruthi Enclave have been described as unauthorized buildings liable to be demolished, and the petitioners have been given 72 hours for tendering a valid explanation objecting to the proposal, under threat of prosecution and coercive action by the Corporation.
2. In WP.No.32596 of 2014, the Association seeks a quash of orders dated 14.02.2006 and 22.01.2007 of the Executive Engineer and Assistant Executive Engineer, Public Works Department (PWD)/R3 and R4 respectively, seeking a consequential direction to the District Collector, Coimbatore/R2 to consider the representation of the Association dated 24.08.2010.
3. The second Writ petition has been instituted in 2017, WP.No.24500 of 2017, challenging proceedings of the Commissioner, Town and Country Planning/R3 and the Member Secretary, Coimbatore Local Planning Authority/R4 dated 27.07.2017 and 28.08.2017.
4. The third Writ petition has been instituted in 2019, W.P.No.2276 of 2019, and challenges proceedings of the Commissioner, Corporation of Coimbatore/sole respondent dated 04.09.2018.
5. We have heard the submissions of Mr.Vijay Narayan, learned Senior Counsel for Mr.Saravana Sowmiyan, learned counsel for the Association as well as the individual petitioners. Their submissions are as follows.
6. Shruthi Enclave was conceived as a ‘group housing project’ by the landowners who had applied for planning permission in that category. The Coimbatore Corporation had accorded, as early as on 29.04.2004, permission to the landowners to form a culvert and pathway in respect of the Canals that ran through their land, at their own cost. The no-objection granted on 29.04.2004 was after an inspection by the authority, of the entire area.
7. In the aforesaid proceedings, the Assistant Executive Engineer, PWD has noted that there was no agricultural activities in the lands or in the surrounding areas and there was no water irrigation facility for several years. Subsequent thereto, approval had been granted by the Commissioner, Town and Country Planning on 23.08.2004 for construction of 137 dwelling units, fixing specific boundaries in the area to be developed. The petitioners have purchased the plots as early as in 2004 onwards and have been in occupation since then.
8. While so, action was taken in 2006 as against one of the landowners on a representation by an association of Farmers on the ground that they were unable to irrigate the area, and in any event, culvert and pathway had not been constructed by the petitioners and hence the permission granted in 2004 ought to be cancelled. This had led to the passing of orders dated 14.02.2006 and 22.01.2007 cancelling the permission granted by the PWD in 2004 leading to the institution of the Writ petitions in 2014 by the Association.
9. In fact, the Association had also made a representation on 24.08.2010 making some suggestions for amicable resolution of the matter, as a via media, instead of the extreme step of cancellation of the permissions granted. No action was taken on that representation and instead, orders came to be passed cancelling the technical sanction on 27.07.2017, planning permission on 20.09.2017 and the building permission on 20.02.2018
10. As a sequitur thereto, notices came to be issued by the Corporation classifying the units as unauthorised construction and calling for their demolition. The series of orders as aforesaid have come to be challenged by the petitioners. All those orders take their sustenance from the initial two orders passed in 2007 cancelling the permission granted in 2004 for conversion of the water channel by the PWD.
11. Mr.Vijay Narayanan would firstly argue that the impugned notices are contrary to the provisions of the Town and Country Planning Act, 1971. Action in terms of Section 54 is contemplated only during the currency of the construction activity, and after completion of the construction, it is only Section 56 that is applicable. Hence, the proper provision to have been invoked in the present case would have been Section 56 and not Section 54 of the Town and Country Planning Act. He would accede to the position that the petitioners have not constructed the culvert as undertaken by them initially. However, they are willing to do so now and remedy the error.
12. He refers to a representation made on 19.06.2017 by the Petitioner Association wherein they accede to the deviations from the approved plan in the constructions. The tenor of the representation is that they should be permitted to rectify the deviations to the maximum extent possible after consultations with the Local Planning Authority. They also refer to a misunderstanding by the authorities in the classification of the project, as according to them, the approval granted was under the caption of ‘Group Housing’, whereas, the authorities are viewing the project as independent plots.
13. In conclusion, the Petitioners would submit that the houses have been purchased from out of their hard earned savings, the individual petitioners are senior citizens and hence, the impugned orders have caused them great prejudice.
14. On the basis of these submissions, learned Senior Counsel would urge that the Writ petitions be allowed, and the impugned orders be set aside.
15. Mr.Mahesh, learned Standing Counsel appearing for the Coimbatore Corporation would argue that the impugned notices have taken note of the violations committed by the builder/landowners, of which the petitioners are well aware. The permission granted in 2004 for forming a culvert and pathway in the Canals was fundamentally incorrect as there could be no usurpation of the water body to the detriment of the general public, including, and specifically, the farmers. The petitioners have themselves conceded to the deviations under their representation dated 19.06.2017.
16. On instructions, he would submit that having regard to the length of residence by the petitioners, they may be permitted to approach the Corporation for suitable relief and the authorities would be willing to consider the representations in accordance with law. However, he would reiterate that proceedings dated 14.02.2006 and 22.01.2007 cancelling the permission for conversion of the water body into a pathway and culvert set out the correct position in law, and must not be interfered with.
17. Mr.C.R.Prasanan, learned counsel who appears for the Farmers Association/R11 in W.P.No.32596 of 2014 is vociferous in support of the orders passed on 14.02.2006, 22.01.2007 and 28.05.2007. His submissions are that the water body that runs through the Shruthi Enclave is also a source of water for irrigation of the adjoining lands. He represents the Farmer’s Association and states that they are seriously aggrieved by the permission granted to the petitioners to put up a pathway and culvert over the water channel. It is indeed providential that they have not complied with this condition.
18. As regards the stand of the petitioners that there is no water that runs in the Canals, he would object to the statement as being incorrect. In any event, he would take a broader stand relying on the judgement of the Supreme Court in Sarvepalli Ramaiah V. District Collector, Chittor District and Ors((2019) 4 SCC 500), Full bench of this Court in T.K.Shanmugam V. State of Tamil Nadu and Ors(2015 SCC Online Mad 9343) and a Division Bench of this Court in A.Ganesan V. District Revenue Officer, Tiruvallur(2025-2-Writ L.R.478) stating that utmost protection should be given to water bodies in the Country and in the State.
19. Even assuming that there was no water running in the channel, the bed of the water course continues to vest in the State and cannot be handed over to a private party for their own use. The stand of the Farmers' association thus aligns with that of the Coimbatore Corporation.
20. We have heard all parties in detail and perused the records and cases cited.
21. We recapitulate the facts briefly in order to set the legal issues in context. Shruthi Enclave was conceived as a housing complex in the early 2000s and sits on an extent of 8.05 acres. While the petitioners have argued that the project was conceived as Group Housing/Gated community, the Corporation is arguing that there was no such classification available at that juncture in time and the project was conceived of as a layout comprising independent houses.
22. It is true, that the site plan submitted by the builder uses the phrase ‘group housing’. However, despite a detailed discussion on this aspect of the matter, we are unable to come to ascertain as to the classification/head under which the project was approved. The approval dated 23.08.2004 issued by the Commissioner, Town and Country Planning for ‘construction of buildings consisting 137 dwelling units’ has been granted relaxing Development Rule 8 (VIII). Mr.Mahesh is however unable to confirm what Development Rule 8 (VIII) is and says that despite his best efforts, there is no such rule available on the record. Approval dated 23.08.2024 is extracted below:-
PROCEEDINGS OF THE COMMISSIONER, TOWN
AND COUNTRY PLANNING, 807, ANNA SALAI,
CHENNAI 600 002.
Present :- Mr.Pa. Anand, IAS.,
Date 23.8.2004
Na.Ka.No.20735/04BA1
SUB: Buildings - Coimbatore Local Planning Authority/ Municipal Corporation, Uppilipalayam village, Survey No.534 part, 540/2A, 2B, 541, 551/2B part, 553 part, 554 part in Singanallur Extension and Development Scheme No.11, 12 extent - 8.05 acres, Grant of Approval for construction of 137 dwelling units - Regarding.
Ref: 1) Letter of the Member Secretary, Coimbatore Local Planning Authority in No.2569/04 dated 4.8.04. 2) Letter of the Assistant Commissioner, East Zone, Coimbatore Corporation in No.6146/04 dated 16.7.04. 3) Applications of the Petitioners Mr.R. Rajendran, Mr.R.Nanjappan, Mr.Mathi, J.Sridevi dated 29.7.04 and 23.8.04.
ORDER:-
Coimbatore Local Planning Authority/ Municipal Corporation, PLOT situated in Uppilipalayam Village, Survey No.534 part, 540/2A, 2B, 541, 551/2B part, 553 part, 554 part in Singanallur Extension and Development Scheme No.11, 12. Boundaries are fixed as "ABCDEFGHJKLMNOPORSTUV" is approved, condition in Development rule 8(VIII) is relaxed and approval is granted for construction of buildings consisting 137 dwelling units.
Approval is granted by relaxation of development rule 8(III) affecting the proposed construction and for grant of Project approval.
The approved Building Plan numbered as BP/TCC No.106/2004 and sent.
CONDITIONS:
1) As agreed: by the Petitioners in their Affidavit the 60 feet wide scheme road situated within the plot must be laid, tar topped and handed over to Coimbatore Municipal Corporation.
2) Solar water heating system must be installed in the residential buildings.
3) The Proposed parking space earmarked in the plan must be utilized only for the said purpose.
4) The open area spaces in the plot must be maintained in the same state and the community open area spaces shall be maintained by the Resident Welfare Association.
5) There shall not be any deviations from the approved building plan, in the case of any modifications prior approval must be obtained from this office.
6) Rain water harvesting facilities must be made as shown in the approved building plan and in accordance with GO No.138 dated 11.10.2002 of the Department of Municipal Administration and Drinking Water Supply.
7) The waste water discharged from the proposed building must be disposed by private vehicles and safe drinking water facilities must be provided to the residents at the cost of the petitioners.
The stamped plans are attached and sent herewith.
The Member Secretary, Coimbatore Local Planning Authority is requested to issue further orders to the petitioner.
The petitioner is informed to approach the Member Secretary, Coimbatore Local Planning Authority for further orders.
The Member Secretary, Coimbatore Local Planning Authority is requested to acknowledge the receipt of the approved Draft Action Order Letter and plans.
Sd/-
23.8.04
Commissioner, Town and Country Planning
Enclosures:- plans 2 sets
To The Member Secretary, Coimbatore Local Planning
Authority,
Coimbatore
Copy:-
1) Assistant Commissioner, East Zone, Coimbatore Corporation, Coimbatore.
2) Mr.R.Rajendran, Mr.R.Nanjappan, Mr.Mathi, J.Sridevi 16, Shruthi Avenue
Aruna Nagar, Coimbatore - 17.
23. Hence, the mere nomenclature used by the builder as ‘group housing’ may not amount to much, as none of the parties before us are able to throw any light on whether the Rules at that point in time provided for a gated community or group housing. A copy of the Development Control Rules relatable to Coimbatore have been shown to us. These rules are of the year 2010 and we are given to understand that prior to this date, it was only the Local Body Rules that were applicable and there was no provision therein, for a gated community or group housing.
24. At the conclusion of a detailed discussion, we are left no clearer as to whether there was a provision in the then Rules to have granted permission for a gated community or group housing and in the absence of any clarity on this aspect, we do not wish to render any finding in this regard.
25. Moreover, the petitioners have themselves given a representation on 19.06.2017 wherein, they accede to deviations from the approved plan. Inter alia they say that ‘instead of group houses, the promoter has constructed as independent houses’. We had specifically posed a query to Mr.Vijay Narayan in regard to the undivided share of the land that had been transferred to each petitioner and the arrangement of the layout in respect of the roads and pathways in between the houses. The petitioners are not able to provide any clarity in this regard.
26. We see from the approvals granted that one of the conditions related to handing over a portion of the property for development of a 60 feet scheme road. The petitioners have, admittedly, donated land. However, the Government has been unable to develop the road as it has not been able to acquire the land on either side of the portion gifted by the petitioners. Hence, as on date, the 60 feet scheme road is yet to be laid.
27. There are private parties to this Writ petition who have also raised disputes in regard to the access to their properties. Since we are told that suits are pending inter se the petitioners and those parties, Vanajothi and Gopal, we do not wish to say anything in this regard and leave it to the parties to sort out their issues before the Civil Court.
28. As far as the challenge in the 2017 and 2019 Writ petitions are concerned, by consent of the parties, we set aside the impugned proceedings dated 27.07.2017, 28.08.2017 and 04.09.2018 and, in light of the representation of the Association which is dated 19.06.2017, we direct the Coimbatore Corporation to intimate the petitioners with regard to what the deviations are, and the action to be taken to remedy the same. Let these notices intimating them of the deviations and the required action be sent within a period of four (4) weeks from date of receipt of a copy of this order granting the petitioners reasonable time to correct the deviations. It is made clear that the official respondents are at liberty to pursue the matter and in the event necessary rectifications are not made, to take action in accordance with law.
29. As regard W.P.No.32596 of 2014, after a detailed hearing, we crystallize the following two issues as arising for our consideration.
i) Whether the permission granted by the Public Works Department on 20.07.2004 to form a culvert and pathway in the Canals, in SF.Nos.535, 540/1, 551/1, 539/2 and 550 is correct, and
ii) Whether Shruthi Enclave is to be treated as a gated community/group housing, entitled to build a wall around the layout.
30. The first issue relates to the permission granted on 20.07.2004 for formation of culvert and pathway in the canal. We have been given a map of the entire area including Shruthi Enclave and the adjourning plots. Admittedly, one portion of the Sanganoor Canal runs through and abuts Shruthi Enclave. The boundaries on the map provided reveal to us that the pathway of the canal runs almost along the periphery of Shruthi Enclave. Since the petitioners have submitted that there was no water in this Canal for many years, we wanted to ascertain the position on the ground, and on 17.02.2026, passed the following order.
Heard in part.
2.Three issues that immediately appeal to us are:
(i) difficulty in access for those Survey Numbers that are in the vicinity of Shruthi Enclave. Such survey numbers shall be identified by R2, R3 and R5 and their officials.
(ii) whether by virtue of the Vaaikaal not being maintained, there is any difficulty or interruption in water supply to the surrounding areas. The officials of the Revenue/Corporation/Public Works Department, shall undertake a survey of the area and file a report in this regard. The authorities will also ascertain whether there is any inlet and outlet to the water channel that runs through the Shruthi Enclave.
(iii) whether cultivation is going on in any of the areas in the vicinity of Shruthi Enclave. The authorities as adumbrated in the points above shall cause inspection and file a report.
3.The petitioner and the private parties are at liberty to follow up with the officials and ensure their participation in the above exercise.
4.List on 23.02.2026 to receive the report.
31. A report has been filed by the respondents in pursuance of our order as aforesaid. Report dated 21.02.2026, extracted below, is clear that there is no inlet or outlet to the water channel that runs through Shruthi Enclave.
REPORT FILED BY THE COIMBATORE CORPORATION
. . . .
1) I am the Assistant Commissioner of the Coimbatore City Municipal Corporation, East Zone and as such I am well acquainted with the facts of the case from the records maintained therein.
2) I state that I am filing this report as per the direction of this Hon'ble Court dated 17.02.2026 in the above Writ Petitions.
3) I state that pursuant to the directions of this Hon'ble Court the officials of the Coimbatore Corporation, Revenue Department, Water Resources Department conducted a joint inspection on 20.02.2026 to find out the ground reality and submit a report to the directions of this Hon'ble Court as mentioned below:
i. Difficulty in access for those Survey Numbers that are in the vicinity of Shruthi Enclave.
Sruthi Enclave is a Residential Housing Colony situated in Coimbatore District, Coimbatore South Taluk, Uppilipalayam Village, Old S.F. Nos: 534/ Part, 540/2A,2B, 541, 551/2BPart, 553/Part & 554/Part, T.S Ward: AD(30), T.S. Block: 20, T.S. Nos: 3/2A,3,4, 5/2,3А,3B,5,6, 7/2,3,11/2A2,2C, 17/1,2,3,4, 20/8.
The Vaikal passing through Sruthi enclave is situated in Old S.F. Nos:535, 539/2, 540/1, 551/1 & 552 T.S. No.s:4, 5/1, 7/1, 9/2 &15. The vaikal in the south of the Sruthi enclave is situated in S.F. No: 550, T.S. No: 6. Sruthi Enclave is bounded by the T.S. No: 3/2B,5/2,7,8, 9/1, 11/2B,2D1, 16, 18, 20&25/1, 3. T.S. No.s: 3/2B, 11/2B,2D1&16 have direct access to public road.
T.S. No.s: 5/2,7,8, 9/1, 18, 20&25/1,3 do not have direct access to public road. They have to use the roads of the Sruthi Enclave layout to reach the public road, but the Sruthi Enclave Residents constructed compound wall and entry restricted to the adjacent land owners.
ii. Whether by virtue of the Vaaikaal not being maintained, there is any difficulty or interruption in water supply to the surrounding areas?
There is no irrigation happening in Sanganoor Pallam, the aforementioned channels are branch channels of Sanganoor Pallam. The above said branch channels, have been blocked in numerous areas and have partly become roads
Since there is no irrigation happening in main channel i.e., Sanganoor Pallam, the question of interruption of water supply for agriculture does not arise.
Whether there is any inlet and outlet to the water channel that runs through the Sruthi Enclave.
Currently there is no inlet and outlet to the water channel (T.S.No.s:4, 5/1, 7/1, 9/2 &15) that runs through the Sruthi Enclave.
iii. Whether cultivation is going on in any of the areas in the vicinity of Shruthi Enclave.
The cultivation is being carried out in Old S.F. No: 542, T.S. No:18 Part by Mr Gopal, Mr Ramesh and their family using bore well water only. The other areas are barren land.
4) I further submit that the original approval is cancelled due to deviation of the approved layout plan and the residents of Sruthi Enclave not permitting the adjacent land owners to use the road inside the layout. The access to the adjacent land owners cannot be denied on the pretext of gated community concept. The compound wall has to be removed to permit the adjacent land owners to get access to their adjacent lands. Moreover, most of the buildings have been constructed violating the approved plan and subsequently the layout plan itself cancelled due to deviations. The copy of the joint inspection report signed by the officials who conducted the joint inspection is enclosed along with this report.
It is, therefore, prayed that this Hon'ble Court may be pleased to receive this report and issue further direction as this Hon'ble Court may deem fit and pass such further or other orders as this Hon'ble Court and thus render justice.
32. Thus, it is very clear that the Sanganoor Channel has been interrupted at a point even anterior, and after Shruthi Enclave, as the Corporation has itself laid roads in certain portions of the Sanganoor Channel in those areas. Thus, in all probability, there may be no possibility of reviving of the Sanganoor Channel as one continuous Channel.
33. Be that as it may, and as rightly pointed out by Mr.Prasanan, even assuming that the water channel runs dry, it vests in the State to take a decision as to whether it is possible to revive the water body or to utilize the Channel for any other purposes. On 22.03.2004, the Water Resources Organisation of the Public Works Department, issued G.O.No.206 relating to the handing over of the Sanganoor Canal to the Coimbatore Corporation for maintenance. It is true that this action is consequent on the Sanganoor Canal being unusable for irrigation and the G.O. makes that clear. We extract below the translated copy of G.O. dated 22.03.2004.
GOVERNMENT OF TAMILNADU
ABSTRACT
PUBLIC WORKS DEPARTMENT - WATER RESOURCES ORGANISATION - SANGANOOR CANAL RUNNING THROUGH COIMBATORE CORPORATION – HANDING OVER TO COIMBATORE CORPORATION FOR MAINTENANCE - ORDER PASSED
PUBLIC WORKS DEPARTMENT
GOVERNMENT ORDER NO.206 Date : 22.3.2004
SEAL OF
THE CHIEF ENGINEER,
WATER RESOURCES ORGANISATION,
COIMBATORE 31 MAR 2004
READ:-
1) GOVERNMENT ORDER NO.277 DEPARTMENT OF MUNICIPAL ADMINISTRATION AND DRINKING WATER SUPPLY.
2) CHIEF ENGINEER, WATER RESOURCES ORGANISATION, POLLACHI REGION LETTER NO.HDO/SRDO2/F17366/97-3 DATED 14.11.97.
3) DISTRICT COLLECTOR, COIMBATORE LETTER NO.Pa Mu 59975/98 (A4) DATED 18.3.99.
4) CHIEF ENGINEER, WATER RESOURCES ORGANISATION, POLLACHI REGION LETTER NO.HDO/DO4/F1/7366/97 DATED 5.6.2000.
5) THE COMMISSIONER COIMBATORE MUNICIPAL CORPORATION LETTER NO.Sp155/2001CE DATED 21.112001.
6) SPECIAL COMMISSIONER AND COMMISSIONER OF LAND ADMINISTRATION, CHENNAI LETTER NO.RC C2/18005/2002 DATED 29.12.2003.
ORDER
Ref.1 It has been ordered that the canals which are unusable for irrigation shall be handed over to their respective Municipal Corporations with the condition that Government financial aid should not be requested for its maintenance.
2. In Ref.4 letter The Chief Engineer, Water Resources Organisation, Pollachi has stated that, since, the Sanganoor canal is unusable for irrigation the same shall be handed over to Coimbatore Municipal Corporation for maintenance.
3. In Ref.3 letter, The District Collector, Coimbatore has granted approval for handing over the entire Sanganoor canal along with its encroachments, rights and maintenance to the Coimbatore Municipal Corporation subject to the following condition:-
1) The Coimbatore Municipal Corporation shall take up only maintenance works in the above said Sanganoor canal.
2) The Coimbatore Municipal Corporation shall not transfer the rights of Sanganoor canal to anyone or transfer its rights in any manner whatsoever.
4) In Ref.5 letter, The Commissioner, Coimbatore Municipal Corporation has granted approval for handing over the above said Sanganoor canal to Coimbatore Municipal Corporation for maintenance.
5) Therefore, Considering the recommendations placed by The Chief Engineer, Water Resources Organisation, Pollachi, The District Collector, Coimbatore, The Commissioner, Coimbatore Municipal Corporation the Government orders to handover Sanganoor canal to Coimbatore Municipal Corporation with the following conditions.
1) The Coimbatore Municipal Corporation shall not put up any constructions on the banks. 2) Shall not permit others to use it except to maintain the canal and its banks.
6) With the approval of the Department of Municipal Administration and Water Supply this order is published in unofficial Note No.9923/MC2/04 dated 16.3.04.
(By Order of the Governor)
N.S.Palaniappan
Government Secretary
34. However, the Channel, either wet or dry, could not have been handed over for private exploitation. Proceedings in Ka.N.Ko.58 of 2004 dated 29.04.2004 extracted below (translated version) is cognizant of this, even as it grants no-objection for forming a culvert and a pathway across the Canals.
PUBLIC WORKS DEPARTMENTT
From To
Mr.R.Palanisamy M.E., Mr. R.Rajendran,
Assistant Executive Engineer, PWD, No.16, Shruthi Avenue,
Irrigation Sub-division, Coimbatore Aruna Nagar,
Vadamadurai, Thudiyalur,
Coimbatore district.
Ka.N.Ko: 58/2004- Date: 29.04.2004
Sir,
SUB: Coimbatore District - Coimbatore South Taluk – Uppilipalayam Village - No Objection Certificate requested for forming Culvert and pathway through SF.Nos.535, 540/1, 551/1, 539/2 and 550 - Regarding.
Ref: Application dated 22.04.2004 of Mr.R.Rajendran, Coimbatore.
-----
In the application referred above, Mr.R.Rajendran, Mrs.Indirani, Mrs. Sridevi, Mrs.Ponnammal, Mr.Anandan, Mr. Srinivasan, Mrs.Selvi, Mr.Ganesan, Mr.Nanjappan and Mr.T.K.Nataraj who are the owners of lands in SF.Nos.534, 541, 540/2A, 540/2B, 551/2B, 544, 548, 553, 554 and 538, 539 Uppilipalayam Village, Combatore South Taluk, Combatore District, in order to access their lands have requested No Objection Certificate for forming Culvert and pathway in the canals situated in SF. Nos.535, 540/1, 551/1, 539/2 and 550 at their own cost.
In view of the above said application, the Development Scheme Plan of Singanallur Scheme Nos.11 & 12 were inspected and the canals situated therein are blocked in between. Further when the lands in the above said SF.No. were inspected, there were no agricultural activities. The lands surrounding it are residential plots.
Since there were no water irrigation facility for many years in the above said SF.Nos.534, . 541, 540/2.A, 540/2B, 551/2B, 544, 548, 553, 554 and 538, 539 and as there are no agricultural activities in the said lands, No Objection Certificate is issued for forming Culvert and pathway across the canals situated in SF.Nos.535, 540/1, 551/1, 539/2 and 550 at their own cost subject to the conditions mentioned herein below.
CONDITIONS:
1. Works for forming of pathway and Culvert must be done under the supervision of this department.
2. In the event of any expansion works or demolition done in future, this department must be informed.
Seal of the Assistant Executive Engineer, PWD, Irrigation Sub-division, Coimbatore.
Assistant Executive Engineer, PWD,
Irrigation Sub-division,
Coimbatore
35. The above proceedings reflect the understanding that there were no water irrigation facilities for many years in SF.Nos.534, 541, 540/2A, 540/2B, 551/2B, 544, 548, 553, 554, 538 and 539. The proceedings also state that there were no agricultural activities in those lands and for that reason, grants no objection for forming a culvert and pathway across the Canal.
36. The conditions imposed are that the formation of pathway and culvert must be under the supervision of the Public Works Department and any further work on the pathway and culvert by way of expansion or demolition must be done only after obtaining approval from the Public Works Department.
37. The clear understanding is that the formation of the pathway and culvert was only temporary, in light of there having been no running water there for irrigation purposes for many years. All parties appear to be consensus ad idem on the position that even thereafter, the question of reviving that part as a water body does not arise.
38. The petitioners have conceded that they have not formed either a culvert or a pathway across the Channel. Now the difficulty, and the real issue that arises, concerns the compound wall that has been constructed around Shruthi Enclave preventing the public from passing through the layout using the inner roads as a pathway, which the public believe they are entitled to.
39. In Sarvepalli Ramaiah(Foot Note Supra (1)) the Supreme Court has reiterated the settled position that water bodies must be retained as water bodies and restored if they deteriorate. They have also emphasized the position that water bodies are inalienable and this quality of inalienability would extend to the land comprised in water bodies as well, even if they run dry.
40. Referring to the judgments in the case of Susetha V. State of Tamil Nadu(2006(6) SCC 543), MC Mehta V. Union of India((1997) 3 SCC 715) and Intellectuals Forum V. State of Andhra Pradesh((2006) 3 SCC 549), the Supreme Court emphasizes that no patta can be granted in respect of tanks and water bodies, including those that might have dried up or fallen into disuse.
41. The Full Bench of this Court in T.K.Shanmugam’s(Foot Note Supra (2)) case has also reiterated the necessity to preserve a water course, going to the extent of granting liberty to the State for recoupment of those alienations of water courses that were illegally done. The relevant portion of the judgment reads as follows:
20. In the case of R.Lakshmnan (supra), a Public Interest Litigation was filed before the Madurai Bench of this Court to restore the capacity of the water bodies as on date of the 1923 survey. The Writ Petition was disposed of by directing the Government to issue appropriate direction which should be mandatory in nature to all local bodies, including Corporation, Municipalities and Panchayats not to grant any planning permission for any construction that is put up in a water body and not to grant approval for any lay out or building plan, if the land is located either in part or in whole, in a water body and directing the Government to contemplate issuing of an order under the Tamil Nadu Town and Country Planning Act making it mandatory to enclose a certificate of the Revenue Authority along with building plan application, certifying that no part of the land is located in a water body and wrong information if provided, the person who issued the certificate to be held responsible. Further direction was issued to preserve and protect the water bodies and complete the exercise already undertaken within a period of one year and Civil Courts not to grant any interim protection order restraining the authorities from evicting a person from a water body. This decision was rendered by the Division Bench on 06.08.2014, fixing a prematory time limit of one year which has already lapsed. Nothing has been placed on record by the first and second respondents that the order of Division Bench has been complied with. Thus, this is the third default committed by the Government of Tamil Nadu.
21. We may now refer to certain provisions of the RSOs with particular reference to water bodies. Part II of the RSO deals with disposal of land. RSO 15(5) states that only land, the assignment of which is unobjectionable shall be assigned, lands acquired for communal purposes shall not be assigned, tank-bed lands should on no account has been assigned without consulting an appropriate technical officer including the Chief Engineer and without specific orders from the Government. RSO 15(38)(ii) deals with water course poramboke and states that great care should be taken to preserve the margins of canals, channels and streams and the transfer and assignment of such water course source poramboke can be ordered only by Government in consultation with the Commissioner of Land Administration and the Chief Engineer (PWD), vide G.O.Ms.No.1267, Revenue, dated 29.12.1997. General Instructions given for Land Administration states that encroachments in poramboke lands like water sources/courses, gracing grounds, temple lands, kalam, etc., are considered as highly objectionable and these encroachments have to be evicted. The Revenue, Public Works and Highways Department authorities and local bodies like Municipalities and Corporation have been empowered to evict unauthorised encroachments after giving due notice under the Tamil Nadu Land Encroachment Act, 1905, for which a District level Committee under the Chairman of the District Collector has been constituted. Insofar as the directions contained in the RSO which are inconsistent with any other subsequent enactment or decision of this Court or the Hon'ble Supreme Court are deemed to have been superseded.
22. The common thread which runs through the manual of Revenue Administration is to preserve water courses as such. Though certain Government Orders were issued during 1970s, permitting assignment of Tank-beds with due permission, if those Government Orders seek to regularise illegal encroachment in tank-beds, water channels or area abutting and on margins of water channels to that extent the Manual of Revenue administration and the Government Orders are deemed to have been superseded, more particularly in the light of the directions issued by the Hon'ble Supreme Court in the case of Jagpal Singh (supra). However, the manual of Revenue Administration does not specifically state about assigning tank beds for a different user or concession to house site etc after reclassification.
42. We have to consider the present matter in the context of the above pronouncements. Notwithstanding that the present litigation is projected as though it were a private dispute between the parties, it cannot be denied that the permission granted in 2004 for a takeover, albeit temporary, of a water channel, is contrary to law, public interest and pronouncements of the Apex Court that have recognized the necessity to protect water courses and the land upon which they are comprised.
43. A reading of impugned orders dated 14.02.2006 and 22.01.2007, extracted below, show that, far from constructing the culvert and pathway as erroneously permitted, tar topped roads have been formed and walls have been constructed by the petitioners.
PUBLIC WORKS DEPARTMENT
From To
Engr.K.Nagarajan B.E., Mr.R.Rajendran,
Executive Engineer, PWD, 16, Shruthi Avenue,
Bhavanisagar Dam Division, Aruna Nagar,
Thudiyalur,
Bhavanisagar - 638451. Coimbatore.
Letter No. VaPa- E Va A3/Ko/73/66/06/ Date: 14.02.2006
Dear all,
SUB: Coimbatore District – Coimbatore South Taluk - Uppilipalayam Village - recalling of permission for forming Culvert and pathway through SF.Nos.535, 540/1,551/1, 539/2 and 550 - Regarding.
Ref: Letter of this office No.VaPa- E Va A3-Ko-73-263 M-2004-
Date: 20.7.2004
------
Permission was granted for forming Culvert and pathway in the canals situated in SF.Nos.535, 540/1, 551/1, 539/2 and 550 vide this office's letter referred above.
It was made to know in the inspection that culvert and pathway were not formed in the permitted lands in the permitted manner, instead tar topped roads were formed and walls were constructed. Therefore as culvert and pathway were not formed in the permitted lands in the permitted manner and instead tar topped roads were formed and walls are constructed. The permission granted vide the referred letter is hereby cancelled.
Hence it is requested that the tar topped roads and walls constructed in the canals should be removed. Failing which be informed that as per rules Departmental Actions will be initiated to remove the encroachments.
Sd/-
14.02.2006
Executive
Engineer, PWD,
Bhavanisagar
Dam Division,
Bhavanisagar.
PUBLIC WORKS DEPARTMENT
From To
Engr.K.Nagarajan B.E., Mr.R.Rajendran,
Executive Engineer, PWD, 16, Shruthi Avenue,
Bhavanisagar Dam Division, Aruna Nagar, Thudiyalur,
Bhavanisagar - 638451. Coimbatore.
-----------------------------------------------------------------------------
Letter No. VaPa/EVaA3/Vo73/25M/ Date 22.01.2007
Dear All,
SUB: Coimbatore District - Coimbatore South Taluk - Uppilipalayam Village - permission was granted for forming Culvert and pathway through SF.Nos.535, 540/1, 551/1, 539/2 and 550 - Recalled - Request to remove the encroachments -Regarding.
Ref: 1) Letter of this office No. VaPa- E Va A3- Ko-73/263M-2004- Date:20.7.2004.
2) Letter of this office No. VaPa-E Va A3/Ko/73/66M/2006/ Date: 17.02.2006
------------------
Permission was granted for forming Culvert and pathway in the canals situated in SF.Nos.535, 540/1, 551/1, 539/2 and 550 vide this office's letter Ref.1 above. But, culvert and pathway were not formed in the permitted lands in the permitted manner, instead tar topped roads were formed and walls were constructed, in continuance of which permission has been cancelled vide the Ref.2 letter and it was requested that the tar topped roads and walls constructed in the canals should be removed.
In this circumstances, based on the decision taken by the Steering committee regarding removal of encroachments, it is requested that the tar topped road at present situated in SF.550/2 should be transferred to the lands belonging to yourself on the northern side, without causing any hindrance to the farmers and general public.
Executive Engineer,
PWD,
Bhavanisagar Dam
Division,
Bhavanisagar
44. In light of the discussion in the paragraphs supra, where we have expressed our concurrence with the orders impugned in W.P.No.32596 of 2014, the first issue is answered in the negative and adverse to the petitioners.
45. Our answer to the first issue will itself determine the conclusion to the second issue. As we have held that there is no question of handing over a water course to a private developer for development and conversion into a private pathway, the question of enclosing that pathway so as to prevent public access does not arise.
46. If at all the negotiations qua the petitioners and the authorities lead to the conclusion that the petitioners would be permitted to construct a compound wall around the Enclave, it must be such that the water course stands outside the compound walls or such that there is suitable access at the entry and exit points of the water course into, and out of the Enclave. This issue is answered accordingly.
47. We are in agreement with letter and spirit of orders dated 14.02.2006, 22.01.2007 and 28.05.2007 and confirm the same. Accordingly, W.P.No.32596 of 2014 stands dismissed.
48. In light of the above discussion, impugned orders/Notices in W.P.Nos.2276, 404, 16, 24, 2597, 29, 32, 35, 397, 401, 402, 405 and 23 of 2019 and 32533, 25883, 25886, 26105, 26602, 26688, 26877, 27349, 27613, 27650, 27659, 27686, 28155, 28174, 28182, 28202, 28214, 33261, 30748, 30973, 31231, 32397, 32400, 32402, 32495, 32498, 32503, 32505, 32509, 32511, 32514, 32517, 32520, 32523, 32526, 32527, 32531, 32536, 32538, 32539, 33262, 33283, 33287, 33290, 33293, 33295, 34531, 34535, 34537, 34539, 34541, 34544, 34548, 34550, 34616, 34619, 34623, 34798, 34800 and 25865 of 2018 and 24500 of 2017 are quashed and the Writ Petitions stand allowed.
49. We opine that the legal argument relating to Sections 54 and 56 of the Tamil Nadu Town and Country Planning Act, 1971 does not require to be answered in these writ petitions. This is all the more for the reason that there are admitted deviations in the development of Shruthi Enclave that representation dated 19.06.2017 filed by the petitioners stands testimony to. We however leave the issue open for resolution in a more appropriate case.
50. No costs. Connected Miscellaneous Petitions are closed.
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