IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.7.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Writ Petition No.30725 of 2008 and M.P.No.7 of 2009 Susetha ..Petitioner Vs. 1. The Union of India, rep.by its Secretary to Government, Ministry of Environment and Forests, VI Floor, CGO Complex, Paryavaran Bhavan, Lodi Road, New Delhi-110003. 2. The State of Tamil Nadu, rep.by its Secretary to Government, Public Works Department, Fort St.George, Chennai-600 009. 3. The State of Tamil Nadu, rep.by its Secretary to Government, Revenue Department, Fort St.George, Chennai-600 009. 4. The Special Commissioner and Commissioner of Land Administration, Ezhilagam, Kamarajar Road, Chepauk, Chennai-600 005. 5. The Tamil Nadu Slum Clearance Board, rep.by its Chairman and Managing Director, Kamarajar Road, Chepauk, Chennai-600 005. https://hcservices.ecourts.gov.in/hcservices/ 6. The District Collector, Kancheepuram District, Kancheepuram. 7. The President, Okkiam Thoraipakkam Panchayat, Chennai-600 096. 8. Meenakshi Narayanan Memorial Educational Charity Trust, rep.by its Managing Trustee, Mrs.Nalini Unni, having its registered office at Karthika, 61, Kamaraj Avenue, II Extension, Adyar, Chennai-96. 9. Dhayalan 10.M.S.Jebestin 11. M/s.R.Krishnamurthy & Co., No.12, Perinna Street, Erode-638 001. rep.by its Partner R.Krishnamoorthy 12.P.Gopal 13.N.Chidambaram 14.R.Rajkumar 15.R.Vinoth Kumar 16.S.Jahir Hussain 17.R.Sulochana 18.Karunanithi 19.P.Manoharan ..Respondents (R.8 to R.19 impleaded as per the order of the Court dated 5.10.2009 made in M.P.Nos.1 to 6/2009) Writ petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the Tender Notification No.1133/Va.1/Me.Po/Circle2/2008, dated 21.10.2008 issued by the fifth respondent and quash the same and direct the respondents to forbear from carrying out any reclamation and/or construction activity in Survey No.403/2,3,4,5,6 at Okkiam Thoraipakkam Village and restore the land in S.No.403/2,3,4,5,6 to its earlier state. https://hcservices.ecourts.gov.in/hcservices/ M.P.No.7 of 2009 in WP.No.30725 of 2008: This petition presented under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to permitting the petitioner herein/5th Respondent to construct a storm water drain running West to East on the Southern boundary of the present scheme and develop/strengthen open channel running West to East on Northern boundary of the present scheme to let rain water into the B.Canal. For Petitioner : Ms.R.Vaigai for M/s.Mirdla Paul For R.1 : Mr.M.Ravindran, Addl.Solicitor General of India, assisted by Mr.M.Devendran, SCGSC For R.2 to R.4,: Mr.G.Desingh, Spl.G.P. R.6 & R7 For R.5 : Mr.P.S.Raman, Advocate General, assisted by Mr.R.Chellamuthu For R.8 : Mr.K.S.Natarajan For R.9 : M/s.LaLaw For R.10 : Mr.S.P.Harikrishnan For R.11 : Mr.A.V.K.Ezhilmani For R.12 to R.19 : Mr.G.Masilamani, Senior Counsel for M/s.G.M.Mani Associates O R D E R ELIPE DHARMARAO, J. This probono publico has been filed by the petitioner, a resident of Thoraipakkam and one of the Ward Members of Okkiam Thoraipakkam, praying to forbear the respondents/authorities from carrying out any reclamation and/or construction activity in Survey No.403/2,3,4,5,6 at Okkiam Thoraipakkam Village and restore the land in S.No.403/2,3,4,5,6 to its earlier state. 2. The Government of Tamil Nadu has issued orders in G.O.(Ms) No.424, Revenue Department, dated 4.7.2006, alienating a total extent of 7.95.5 hectares of land in Okkiam Thoraipakkam village, Tambaram Taluk to Tamil Nadu Slum Clearance Board for construction of tenements for the Tsunami affected people and other slum dwellers who are evacuated from slums. The Tamil Nadu Slum Clearance Board/the 5th https://hcservices.ecourts.gov.in/hcservices/ respondent herein has invited sealed tenders by its notice dated 21.10.2008 for construction of further residential flats in the area and irked at the said move of the State and its organs, the petitioner has come forward to file this petition as a probono publico. 3. The case of the petitioner, in a nutshell, is that the Okkiam Thoraipakkam village, comprising of an extent of about 1494 acres is situated on the peripheral area of South Chennai and is a part of the Velachery-Pallikarani swamp, the catchment area of which contains as many as 90 water bodies; that apart from being a source of copious surface water and recharging the groundwater acquifers of the area, the swamp serves another important function of that of a flood plain; that during the monsoon, the entire run off from the area, now interspersed with innumerable habitations, enters Pallikaranai from Velachery in the North and from Kumili and Sonur in the South and all this water finally passes through Oggiammadavu and flows through South Buckingham Canal and enters the Kovalam Estuary. 4. It is also her case that the area wherein the constructions are proposed by the Slum Clearance Board falls within the Coastal Regulation Zone, wherein construction of such huge structures is impermissible and that if the proposed construction is allowed to be erected, it will cause irreparable loss and damage to the eco-system, since being a back water body and marshy land. It has also been her case that any construction in the site will definitely affect the ecology of the area, tilting the balance of ecosystem and that the project site forms part of the Pallikaranai swamp and, therefore, any construction upon the same will definitely have an adverse impact on the swamp. She has further contended that tidal impact has been observed in the Pallikaranai area and measures to declare it as a 'Coastal Regulatory Zone-I area' have also been undertaken and therefore, any reclamation or construction activity is prohibited in the said area and that Pallikaranai swamp forms the western boundary of the project site. 5. On the contrary, the contention of the State Government and also the Slum Clearance Board is that the very writ petition has been filed under a wrong impression of the classification of the land. It has been submitted on the part of the 5th respondent, by filing a counter, that the Velachery-Pallikaranai swamp is situated at about 13 km. away from the land in Survey Nos.403/2,3,4,5,6 at Okkiam- Thoraipakkam village and it has nothing to do with the Velachery- Pallikarnai swamp; that in Okkiam-Thoraipakkam village, many IT companies have constructed multi-storeyed buildings and there are more than 10,000 pucca buildings and it is needless to state that the said buildings were constructed with the approval of the CMDA; that the petitioner herein is a resident of Raju Nagar at Okkiam Thoraipakkam village and she has constructed a pucca building in the land situated at Okkiam-Thoraipakkam village; that the land in https://hcservices.ecourts.gov.in/hcservices/ S.No.403/2,3,4,5 and 6 of Okkiam Thoraipakkam village was allotted to the Slum Clearance Board by the Government under G.O.No.424, dated 4.7.2006 and it is not a marsh/swamp; that in a mistake of identity to the nature/classification of the land, the petitioner has approached this Court assuming to herself that the land is a marsh/swamp. 6. It has further been submitted on the part of the Slum Clearance Board/the 5th respondent that the Velacherry-Pallikarnai swamp has nothing to do with the subject land and it is not a water body as construed in the writ petition; that the area described as 'Okkiam Maduvu' is situated at about a distance of 3 km. from the subject matter land; that the above writ petition has been framed by the writ petitioner without any knowledge of the classification of the subject land as 'assessed waste wet land'; that as per the Coastal Regulation Zone Notification there should not be any development for a distance of 100 m. from the embankment of the Buckingham Canal: that no developmental activities have been undertaken in the prohibited area and entire stretch of 100 m. from the Buckingham Canal boundary remains as a vacant site even now; that in the Okkiam-Thoraipakkam Scheme, the CMDA has approved the construction of slum tenements in Survey Nos.403/2,3,4 and 15,656 houses had been constructed and out of this 12038 tenements had been allotted to the beneficiaries about 7 years back and the people are living peacefully in their respective tenements; that the construction of slum tenements has been started only after 'environmental clearance' of the project by the Government; that in the Okkiam-Thoraipakkam Kannagi Nagar scheme 15656 tenements had been constructed so far and allotment for 12038 tenements had been completed and recently about 325 Tsunami affected families had been rehabilitated and altogether 12363 tenements had been allotted so far and people are living there peacefully; that the road leading to the construction site from Old Mahabalipuram Road, now named as Rajiv Gandhi road, is a pucca road with bituminous macadam with black toping surface (tar with stone jalli) and it is not a kutcha road as contended by the petitioner. 7. It has also been submitted on their part that the Buckingham Canal runs adjacent to the scheme area on the Eastern side and the rain water will drain into the canal easily; that the construction of additional tenements in Survey Nos.403/5 and 6 of Okkiam Thoraipakkam village, in no way, affect the Pallikarani swamp since the land is in no way connected with the Pallikaranai swamp which is about 13 kms. away from the land; that the reclamation of the 'assessed waste wet land' will not give any irreversible impact on the city of Chennai as contended by the petitioner; that the construction of 3000 additional slum tenements will not shrink the marsh since the land is not a marsh land; that moreover, for the people living in the Okkiam Thoraipakkam Kannagi Nagar, infrastructure facilities like roads, street lights, drinking water, ground drainage facilities, schools, https://hcservices.ecourts.gov.in/hcservices/ ration shops, bus terminus had been provided and the people are living peacefully; that about 50,000 families are residing in the objectionable lands like water ways like Cooum, Adyar river, Buckingham canal and in road margins and these facilities have to be rehabilitated as per the Court directions and the allotment for the vacant 3000 tenements would be made within a short period for the families living in the water ways of Cooum river and so, to rehabilitate the people living in the objectionable areas, the tenements need to be constructed and necessary environmental clearance for the construction of tenements in the land had already been obtained. 8. To this, a reply affidavit has been filed by the petitioner, stating that the Revision Survey and Resettlement Register of Okkiam Thoraipakkam clearly shows that S.No.403/2 is classified as a 'backwater'; that the basic infrastructure facilities inclusive of drainage for even the existing residences are inadequate and even minimum rainfall leads to flooding and stagnation of water; that the entire Pallikaranai Zone, of which Okkiam Thoraipakkam is a part, is an ecologically sensitive area and therefore a CRZ-I area and therefore, no construction can be permitted in the area. 9. The petitioner would further submit that the 1911 settlement register of Okkiam Thoraipakkam village shows that the land in S.Nos.403/2 was classified as 'Government poramboke' with usage as 'kazuveli (backwater) and subsequently in the year 1956, the classification of the land was changed to 'nanjai tharisu' and this classification on paper, which was in any case without notice to the residents, including the family of the petitioner, however, did not alter the situation on ground and the land continued and continues to be a water spread area draining the accumulated rain water into the Okkiam Madavu and therefore, any construction on the said site will definitely affect the ecology of the area. 10. When this matter came up for consideration before the First Bench of this Court on 28.4.2009, the First Bench, taking into consideration the dispute between the parties, has appointed a Committee of Experts, comprising of the following persons: (i) Dr.Sultan Ismail, D.Sc., Head of the Department, Bio-technology, New College and Director, Eco Science Foundation. (Chairman) (ii) Prof.N.G.Anthaman, Professor, Centre for Water Resources, Anna University, Guindy, Chennai and (iii) Ms.Supriya Sahu, I.A.S., Chairman of the Tamil Nadu Water Supply and Drainage Board. https://hcservices.ecourts.gov.in/hcservices/ 11. The terms of reference for the Committee are as follows: "(a) Whether any further filling up in the area of construction namely, Okkiam, Thoraipakkam Village should be permitted, and if so whether it will lead to water logging in the event of heavy rains? (b) Whether the disputed construction by the Slum Clearance Board in S.Nos.403/5 & 6 will aggravate the ecological balance of that particular area?" 12. It is seen from the materials placed on record that aggrieved against the order of the First Bench of this Court, dated 28.4.2009, appointing the above Expert Committee, the 5th respondent/Slum Clearance Board has filed SLP (C) No.12087 of 2009 before the Honourable Supreme Court and it is also seen from the materials placed on record that when the Expert Committee has made its site visit on 12.5.2009, the learned counsel for the 5th respondent has served a memo. on them, stating that the Committee could not proceed with the inspection or any further work as they have preferred SLP before the Honourable Supreme Court, furnishing the Diary Number of the SLP filed and further requesting to defer the Committee's inspection stating that even the Revenue officials were engaged in parliamentary election work. But, the Committee has not accepted the said Memo. and proceeded with the inspection. Ultimately, the said SLP was dismissed by the Honourable Supreme Court by the order dated 6.7.2009 and the order of the Honourable Apex Court reads thus: "Although, a letter has been circulated for adjournment, we see no reason to entertain the same since the petitioner has only questioned an order passed by the High Court appointing a Committee to consider the feasibility of the project concerned. The Special Leave Petition is, accordingly dismissed. In the event the petitioner is aggrieved by the report of the Committee and findings that may be arrived thereupon, the petitioner will be free to ventilate his grievances against the same. The question of the competence of the Committee to make such enquiry is left open and the petitioner may question the same in other proceedings." 13. In the meantime, the Committee appointed by the First Bench of this Court has submitted its report 'based on the scrutiny of the documents submitted by the petitioner and the respondents, the interactions the Committee had with them and also their counsels and https://hcservices.ecourts.gov.in/hcservices/ their representatives, the personal observations of the Committee, the interactions of the Committee with a panel of experts and also based on two visits to the site on 12.5.2009 and 25.5.2009'. The conclusions arrived at by the Committee are extracted hereunder for easy reference: "1. The Committee has come to the conclusion that no further construction should be allowed on the site in question, viz., Survey Nos.403/5 and 403/6 in Okkiyam Thoraipakkam. Any further construction on the site would lead to soil compaction, leading to increased bulk density, consequently decreasing water infiltration and recharge mechanisms, thereby creating ecological imbalance. Further, there is no doubt that the construction of the TNSCB tenements would lead to disturbance in the flow pattern of rain water in Okkiyam Thoraipakkam. 2. Pile foundations driven by the huge pile foundation laying machines have an enormous negative impact on the flood plain and ecological processes and functions. There is no denying the fact that the site has already been filled up to a height of 1.8 meters and the damage is already done, which is to an extent, irreversible. However, the fact remains that the 8,000 dwellings coming up on the wetland would affect the ecological balance of the area and it would suffer an irreparable loss forever. 3. The Committee is fully aware of the dire need of providing housing for the poor. However, locating them in an area like this is likely to expose them to continuous floods during heavy rains, thus making it unsafe and unhygienic for them. 4. TNSCB being an agency of the Government has taken all the mandatory clearances required before commissioning the work. The Board has also incurred substantial expenditure in the preparatory work as it had got all the necessary clearances. Therefore neither the Board nor the officials of the TNSCB can be faulted for pursuing the objectives of the Board for providing housing for the poor. They should not be penalized for the expenditure already incurred on the Project since they had followed all the procedures and processes envisaged for the implementation of the Project. 5. The Committee is appalled by the hundreds of public and private constructions coming up along the Buckingham Canal and the adjoining wetlands. If such constructions continue unabated in the Okkiam Thoraipakkam flood plain, it will be something that history will not forgive. The Committee feels that one needs to go beyond the construction by TNSCB https://hcservices.ecourts.gov.in/hcservices/ and bring a complete stop to all the constructions in the ecologically sensitive Okkiam Thoraipakkam area. It is difficult to quantify the environmental damage that is being done, but the signs are there for us to see. Continuous floods, worsening in the quality of ground water, lack of unique vegetation of the wetlands, all are telltale signs of the ecological damage that has already been caused. 6. The Committee feels that no approvals of any kind by the CMDA on any portion of the wetlands for new or additional constructions from this date should be permitted even for the applications already submitted and pending, and if any institution (public or private) has already constructed or is in the process of construction without such existing approval from the CMDA at this point of time, it should be asked to stop such activity and put the land back to the original form and shape as it was, at their cost. All future filling up by earth has to be banned from this date on any piece of the wetland in the declared wetland area, even if it has been re-classified as 'assessed waste wetlands' (as wetlands cannot be declared waste) for any revenue number in the flood plains beside the Buckingham Canal. 7. The Committee humbly requests the Honourable Court to kindly direct all the authorities concerned to realize that parks are "lungs" and wetlands are the "kidneys" of the ecosystem, and protecting and conserving the same should be the foremost need of the hour, which should not be "sacrificed" for the sake of any construction activity in the name of development. 8. The Committee is fully aware that destruction of wetlands would have a drastic impact on the south Chennai flood plain and mitigation may not be an answer for that at that point of time. Closing further construction activities is imperative and is very much essential for a new movement in green planning and implementation that may have to come into effect in this zone." 14. On such conclusions, the Committee has recommended as follows: "From the presentations of the TNSCB and the petitioner, a conclusion that one can draw is that neither party is looking at this issue in a holistic manner. This zone in the South Chennai flood plain needs to be viewed in a big canvas of ideas and perspectives and then to zoom into local plans and priorities. What is happening today is the https://hcservices.ecourts.gov.in/hcservices/ reverse. The local development and changes are dictating and altering the big picture. In ecology, this is called "Invasive Species", which takes over the original vegetation and habitat. This needs to be corrected and enough resources, manpower, ideas and investments need to be plugged in. It is time that we look at the entire coastal region and remove the structures which block the path of the Marsh-Wetlands- Buckingham Canal – Sea trajectory. This path of ecosystem function is an intricate natural measure which could handle large amounts of water, polluted water, and regulate the flows. These wetlands also become rare breeding grounds for fish, prawns, bird life. There is a need to develop a green architecture, planning and a world class wetland ecological park in this zone. Too often lands which are complex and impossible to replicate get changed into "monoculture spaces of unimaginative housing projects for poor people". The poor need to be housed and well. Let an interesting wetland park come up in this zone. There is a need to re-look at coastal zone development that is sustainable, promotes local ecology, is beneficial to communities and livelihoods that live around and is a unique case of benefit – sharing – where the public at large can appreciate an urban wetland system and revival of the Buckingham Canal inland water way project, transport and coastal eco-tourism. 1. To avoid such issues, besides preservation and development of water bodies, it may be worthwhile to consider the formation of an adequately teethed Chennai Basin Water Resources Management Authority headed by an appropriate authority. 2. It is also possible to protect this wet land on similar lines with Pallikaranai Marsh as "Reserved Wetland Park". It would be appropriate to hand over the entire stretch of these wetlands to the Forest Department." 15. Not only the report of the above said Committee, but the very conduct of the 'enquiry' in the locality by the Committee has been objected to, stiffly, on the part of the 5th respondent. In the counter affidavit filed by the 5th respondent they have taken strong objection to the manner in which the inspection/enquiry was conducted by the Committee, stating that the Chairman of the Committee was completely hostile towards them on an erroneous impression that the subject land is a marshy land and thus has a pre-determined opinion and idea with regard to the nature of land in question and therefore, no credence could be attached to such biased recommendations arrived at by the Committee. https://hcservices.ecourts.gov.in/hcservices/ 16. It is also seen from the records that well before the filing of this writ petition on 22.12.2008, the Government has awarded contracts for construction of tenements at Okkiyam Thoraipakkam on 3.12.2008 to the successful bidders and at the time of admission, the Court has passed an order on 23.12.2008 directing the respondents/authorities not to fill up the land, if the same has been classified as 'water body' in the revenue records. Therefore, the successful bidders, who were awarded with the contracts, have come forward to file M.P.Nos.1 to 6 of 2009, praying to implead them as party respondents to this writ petition and by the order dated 5.10.2009, the First Bench of this Court has allowed the said petitions, bringing them on record as respondents 8 to 19. According to them, they have invested huge amounts to make all arrangements for construction and in fact, they have commenced the construction activity on 3.10.2008 itself and any step to stall the construction process, would throw them to a most disadvantaged position, besides causing them irreparable loss. 17. Ms.R.Vaigai, the learned counsel appearing for the petitioner would vehemently argue that it is a clear case of law- breaking by the law-maker State, through its one of the organs/the Slum Clearance Board, by flouting and violating all the Rules and Regulations relating to the protection of environment and resorting to erect huge structures in a Coastal Regulatory Zone, which are the most prohibited activities in such areas. The learned counsel would further argue that the proposed construction is contrary to law and hence it cannot be permitted. The learned counsel for the petitioner would argue that a Notification was issued by the Ministry of Environment and Forest, Government of India in the year 1991, declaring the Coastal stretches as Coastal Regulation Zone (CRZ) and regulating activities in such areas and the same has been amended from to time. The learned counsel would rely on a judgment of the Honourable Apex Court in M.NIZAMUDEEN vs. CHEMPLAST SANMAR LTD. [(2010) 4 SCC 240], wherein a Three Judge Bench of the Honourable Apex Court have extracted the said Notification, which reads as follows: “Now, therefore, in exercise of the powers conferred by clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all other powers vesting in its behalf, the Central Government hereby declares the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) up to 500 metres from the high tide line (HTL) and the land between the low tide line (LTL) and HTL