IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 25.02.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.P. NO. 826 OF 2008 AND M.P. NOS. 1 & 2 OF 2008 Federation of K.K.Nagar Residents' Welfare Associations rep. by its President, Mr.Vairasekar SP-20, III Street, I Sector K.K. Nagar, Chennai 600 078. .. Petitioner - Vs - 1. The State of Tamil Nadu rep. by its Secretary to Government Public Works Department Fort St. George Chennai 600 009. 2. The State of Tamil Nadu rep. by its Secretary to Government Environment and Forests Department Fort St. George Chennai 600 009. 3. Chennai Metropolitan Water Supply and Sewerage Board, rep. by its Chairman-cum-Managing Director 1, Pumping Station Road Chennai 600 002. .. Respondents Writ petition filed for the issuance of a writ of mandamus directing the respondents to forbear from in any manner interfering with the natural pond located between Double Tank Colony and Rajamannar Salai, K.K.Nagar in Survey No.394 and altering its current position and to direct the respondents to remove the encroachments in and around the natural pond area and preserve and maintain the same in good condition. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Ms. P.Selvi For Respondents : Mr. Raja Kalifulla, GP ORDER S.J.MUKHOPADHAYA, J. This writ petition, in public interest, has been preferred by the petitioner, K.K.Nagar Residents' Welfare Associations (hereinafter referred to as 'Association') for issuance of a writ of mandamus forbearing the respondents from in any manner interfering with the natural pond located between Double Tank Colony and Rajamannar Salai in survey No.394 and altering its current position and to direct the respondents to remove the encroachments in and around the natural pond area and preserve and maintain the same in good condition. 2. According to the petitioner, there is a large natural pond located between Double Tank colony and Rajamannar Salai, measuring an extent of 3 acres in survey No.394, which was originally vested with Chennai Corporation. Subsequently, it was handed over to the 3rd respondent, Chennai Metropolitan Water Supply and Sewerage Board (hereinafter referred to as 'Water Supply and Sewerage Board') almost 12 years ago. Both Chennai Corporation and Water Supply and Sewerage Board failed to protect the naturally formed pond, which has several encroachments in and around the pond. They also failed and neglected to clear the pond of weeds and other vegetation that have grown in it and bushes that has come up around it. The main gate for the pond has been damaged and kept open all the time leading to passers-by using the area around the pond as an open toilet and for use of anti-social elements for illegal activities. The deterioration of the water body has also lead to the area becoming a fertile ground for breeding mosquitoes and members of K.K.Nagar are put to great hardship and inconvenience. 3. Learned counsel appearing on behalf of the petitioner submitted that the petitioner has already represented the matter on 3rd Feb., 2005 to the 3rd respondent to clear the natural pond of the weeds and maintain it in good condition, but no action has been taken. On the other hand, they were shocked to learn that the 3rd respondent is proposing to have an additional overhead storage tank and a pump in the double tank for a water distribution station. Proposal has been made to lay a big underground tank in the natural pond area. The additional pump will be used for pumping water from the underground storage facility to the overhead tank and the capacity of storage of water will be upgraded to 14 ML (ML – Million Litres) as against the existing 9.9 ML. The capacity of https://hcservices.ecourts.gov.in/hcservices/ pipeline that handles the distribution is also proposed to be increased depending on the distance from the overhead tank. The natural pond is currently full of water having been replenished by recent rain and it has been excellent source for harvesting rain water and has facilitated in maintaining good water level in and around the area of K.K.Nagar. The residents of K.K.Nagar and nearby localities, like Virugambakkam, Vadapalani, Ashok Nagar and M.G.R. Nagar have also been able to benefit by good ground water supply because of the existing natural pond. The main submission made on behalf of the petitioner is that if the proposal of the 3rd respondent is allowed to continue by putting in place an additional pump for pumping out water from the underground storage facility and setting up an underground tank, it will cause diminution of the tank area and, in turn, cause serious depletion of ground water and water table is sure to come down. Since time immemorial, ponds, tanks and lakes have been used by people in this country for collecting rain water for use for various purposes, but it is alleged that in recent years, such water bodies are illegally encroached upon by unscrupulous elements or been diverted for other use, consequently affecting the lives of the people. Further, having regard to the acute water scarcity, which hits the State very often, more specifically the Chennai City, such natural resources need to be preserved and maintained so as to enable the rain water to be stored and to facilitate underground recharge in the city. Ms.Selvi, learned counsel on behalf of the petitioner, while submitted that there is a need for protecting tanks and checking their encroachment, brought to the notice of the Court Act No.8/07 – Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, which specifically provides measures for checking encroachment by removing encroachers from tanks and other water bodies, which are under the control and management of the Public Works Department. She also relied on one or other decision of this Court and Supreme Court to suggest that any disturbance of basic environment, such as air, water and soil is hazardous to life and will violate Article 21 of the Constitution of India. Reliance was also placed on Article 47 and 48-A, which mandates the State to protect and improve the environment and safeguard its forests. 4. The 3rd respondent, Water Supply and Sewerage Board, in its counter affidavit, while denied the allegation, shown grounds for utilising the land in question. According to the 3rd respondent, the entire area referred to by the petitioner belongs to the Water Supply and Sewerage Board and is provided by pucca compound wall. The office of the Board is situated therein and there is no encroachment in the area surrounded by compound wall, as alleged. The lands are developed by putting up overhead tanks, underground tank and pump house for the benefit of the residents of K.K.Nagar https://hcservices.ecourts.gov.in/hcservices/ to supply water as supplied to the rest of the areas within Chennai. The Water Supply and Sewerage Board proposed certain improvement works to the water supply system in Chennai City under Jawaharlal Nehru National Urban Renewal Mission funding from Government of India. One of the proposal is to construct overhead tank of 2.4 ML capacity and underground tank of 14.0 ML capacity at K.K.Nagar head works adjacent to Rajamannar Salai. The entire land earmarked for the proposed construction of underground tank and overhead tank and pump house inside is totally free from any encroachment and being already protected by compound wall. 5. Learned Government Pleader appearing for the Water Supply and Sewerage Board submitted that the entire area on which K.K.Nagar has been established, including the lands in survey No.394 were shown more than 100 years back in the 'Adangal' as 'Periya Eri'. The nature of the land having subsequently changed for more than 100 years, in the last revenue record, it was classified as 'Government Poramboke' (Government Lands). The lands were subsequently converted into housing colony, as there was no eri or pond in the said lands at that time. The Government in G.O. Ms. No.443, Revenue Department, dated 10th March, 1982, permitted the Tamil Nadu Housing Board (hereinafter referred to as 'Housing Board') to enter upon the land measuring 65.73 acres in survey No.394 of Kodambakkam Village, Saidapet Taluk, Chengalpet District for implementation of the Kodambakkam- Pudur Housing Scheme and the lands were placed with the Housing Board for implementation of the housing scheme. The Housing Board, after development of the lands, allotted plots to general public and sale deeds were issued to them, including the members of the petitioner-Association. The Housing Board has allotted 13,889 sq. mtrs. of land for the Kodambakkam-Pudur Housing Scheme and Water Supply and Sewerage Board was entrusted with lands for extension of K.K.Nagar water supply head works. What learned Government Pleader wanted to highlight is that, if original record in 'Adangal' is looked into, then the houses, which have been constructed over the lands at K.K.Nagar, all of them have been shown as 'Periya Eri', but because of change in the nature of lands over hundred years, as in the last revenue record it was classified as Government poramboke, the lands were given to the Housing Board, in whose turn it was allotted to the members of the petitioner-association and others. It was submitted that the petitioner having enjoyed such benefit, now for the purpose of extension of water supply system in K.K.Nagar by the Water Supply and Sewerage Board, the petitioner cannot rely on 'Agangal' to suggest that it is 'Periya Eri'. According to the respondents, additional lands were requested by the Water Supply and Sewerage Board, as Krishna Water is expected to be delivered at Poondi, for drawing additional supply, treatment, transmission and distribution system, which has to be https://hcservices.ecourts.gov.in/hcservices/ taken up by the Water Supply and Sewerage Board. The site was originally disposed for public purpose in K.K. Nagar measuring 59 grounds located on P.V.Rajamannar Salai and low lying to a depth of 2.5 M to 3.0 M, which was surrounded by water head works on the West, residential quarters of the staff of Tamil Nadu Housing Board on the South, Kanikapuram Slum on the East and P.V.Rajamannar Salai on the North. Considering the fact that use will be for public purpose for providing drinking water under the Krishna Water Project, lands were given free of cost to the Water Supply and Sewerage Board and possession was handed over on 5th July, 1991. Learned Government Pleader referred to G.O. Ms. No.443 dated 10th March, 1982 to show that the lands to an extent of 35.84 acres were handed over for several purposes and balance of 29.20 acres were handed over to the Housing Board for non-saleable purpose for construction of road, playground, storm water drain, etc., vide aforesaid order. Total extent of 65.73 acres in survey No.394 of Kodambakkam Village, Saidapet Taluk, Chengalpet District were placed under the disposal of the Housing Board vide its resolution No.9.03 dated 27th Nov., 1993, which resolved to allot the site measuring 13,889 sq. mtrs. to Water Supply and Sewerage Board for its Krishna Water Project free of cost in public interest. It was further submitted by the counsel for the respondents that Water Supply and Sewerage Board has already awarded the work of construction of the above structure, i.e., overhead tank, underground tank and pump house to the contractor, M/s.IVRCL on 29th Aug., 2007 for a value of Rs.23.83 Crores and the contractor has already commenced work in the said location on 18th Oct., 2007. The work is under progress. It is at this stage the writ petition is stated to have been filed with a view to stop the construction. 6. Learned counsel for the petitioner placed certain photographs to show that work in under progress; poclain machines are used for the work and at some place earth has been stacked to fill up the area. From these photographs, it appears that the lands in dispute is surrounded by pucca boundary wall and there appears to be some water located in the area which is full of algae. It is a shallow area, wherein it appears that rain water was accumulated. 7. From the record it appears that the area in dispute measuring 59 grounds in survey No.394/1 (Part) located on P.V.Rajamannar Salai is low lying to a depth of 2.5 M to 3.0 M, surrounded by water head works on the West, residential quarters of the staff of Tamil Nadu Housing Board on the South, Kanikapuram Slum on the East and P.V.Rajamannar Salai on the North. The same is also clear from the photographs produced by the counsel for the petitioner. From the counter affidavit we find that for strengthening the water supply in Chennai city, a master plan has been prepared. Out of 16 water supply stations proposed, 12 water https://hcservices.ecourts.gov.in/hcservices/ supply stations have already been completed, but balance 4 water supply stations could not be taken up by the Water Supply and Sewerage Board due to financial constraint. Now, the Government of India under the Jawaharlal Nehru National Urban Renewal Mission has approved various projects for Rs.22.00 Crores for improving water supply system in Chennai city of which details have been shown at para-9 of the counter affidavit filed by the 3rd respondent, including the ground water tank, overhead tank and pump house in question. 8. We have heard the parties and noticed the rival contentions and the facts as highlighted by them. 9. Right to enjoy quality life in a healthy environment where ecological balance is maintained by preserving ponds, tanks and lakes is a right guaranteed under Article 21. If illegal encroachments are made in those places, Court can direct to remove such encroachments. In this connection, one may refer to a Division Bench judgment of this Court in L.Krishnan – Vs – State of T.N. reported in 2005 (1) CTC 1. In the said case, the Court further held that under Article 51 A (g), it is the duty to protect forest, lakes, rivers, wildlife, etc. In the case of Gurpal Singh – Vs – State of Punjab reported in 2005 (5) SCC 136 :: AIR 2005 SC 2755, the Supreme Court, while discussed the scope of entertaining a Public Interest Litigation, observed that the information given in the petition should not be vague and indefinite and the Court has to strike balance between two conflicting interests. Article 21, 48-A and 51 A (g) also fell for consideration before the Supreme Court in the case of Intellectuals Forum, Tirupathi – Vs – State of A.P. reported in 2006 (3) SCC 549. In the said case, the Court was dealing with the question of conservation of natural resources such as water and land resources, public water tanks, etc. The need of urban development was shown by the respondents. The Supreme Court, while observed that balance has to be maintained between development needs asserted and environmental degradation, further observed that it is the duty of all to protect environment and preserve and conserve natural resources for present and future generations. In the said case, considering the need for housing and shelter, on the facts of the case, the Court held that the right to shelter do not seem to be so pressing so as to outweigh all environmental considerations, but in the peculiar facts and circumstances, the Supreme Court observed that there could not be complete restoration and revival of the tanks, considerable developmental activities having carried out at huge expense involving crores of rupees. https://hcservices.ecourts.gov.in/hcservices/ 10. From the record it appears that the land in question, survey No.394/1 (Part) measuring 59 grounds is low lying to a depth of 2.5 M to 3.0 M. The photographs produced show that some water has accumulated there, it is full of filth and covered by algae. It is surrounded not only by compound wall, but locality is adjoining to it. Though in the adangal, more than hundreds of years before the total area was shown as 'Periya Eri', the nature of the land of the area having changed and in the revenue records the same having now been classified as Government poramboke lands were allotted to public since 1982, including the members of the petitioner association. Now, the total area, survey No.394 cannot be restored to its original position, more than 26 years having passed and houses having been constructed by persons/Housing Board on the area. So far as the land in the disputed survey No.394/1 (Part) is concerned, what the respondents are constructing is underground tank with a pump house and overhead tank. From the plan as placed on record it will be evident that it is a pucca structure underground tank, which is proposed, with a size of 44.0 M x 32.0 M having water depth of 5.00 M and capacity of 7.0 ML. Apart from such underground tank, proposed overhead tank is of capacity 2.4 ML. From the aforesaid fact and plan, it will be evident that in the shallow low lying area, in place of accumulating some water on it, a pucca tank is to be constructed, which will contain much more capacity of water than the water, which now accumulates or is available there. 11. It has been pleaded and not disputed that there is acute shortage of drinking water in Chennai city. The underground water in the city, particularly, those which are nearer to sea and also the present area is not meant for direct drinking. Even if some people take out the underground water, it may be utilised for any purpose, but not for the purpose of drinking clean and safe water. What Water Supply and Sewerage Board is doing pursuant to their scheme, including the additional scheme is that, they are purifying the water and in the present case, the scheme is to utilise the Krishna water, and after its purification, to supply it to the residents of the K.K. Nagar, including the members of the petitioner association. It cannot be denied that in absence of water no living creatures can survive. Every person has a fundamental right to live and for that they have a right to water, but it should be pure and safe for human consumption. In the present case, the water in the land in question is shallow water filled with algae and is not safe for drinking; on the other hand it is a place for breeding mosquitoes. What Water Supply and Sewerage Board is doing, in the present case, is that they are not closing the source of such water, but constructing a pucca tank for retaining water for supply of safe drinking water to the residents of the area. https://hcservices.ecourts.gov.in/hcservices/ 12. From the aforesaid fact it will be evident that there is no conflicting interest between the parties and what measures have been taken by the respondents will strike balance between the conflicting interest. We find no merit in the writ petition and the same is, accordingly, dismissed. Consequently, connected miscellaneous petitions are also dismissed. But there shall be no order as to costs. GLN Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Secretary to Government Public Works Department Government of Tamil Nadu Fort St. George Chennai 600 009. 2. The Secretary to Government Environment and Forests Department Government of Tamil Nadu Fort St. George Chennai 600 009. 3. The Chairman-cum-Managing Director Chennai Metropolitan Water Supply and Sewerage Board 1, Pumping Station Road Chennai 600 002. 1 cc to Mr.J.Raja Kalifulla, G.P., SR.9988 1 cc to M/s.P.Selvi, Advocate, SR.9999 1 cc to Government Pleader, SR.10053 TS (CO) dv/3.3. W.P. NO. 826 OF 2008 https://hcservices.ecourts.gov.in/hcservices/