IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 28.03.2011 Coram The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.23163 of 2009 & M.P.Nos.2 & 3 of 2009 S.Venkatesan .. Petitioner vs. 1. Government of Tamil Nadu Rep. by its Secretary Municipal Administration and Water Supply Department. 2. Commissioner of Municipal Administration Chepauk, Chennai – 600005. 3. Tindivanam Municipality Rep. by its Commissioner Tindivanam. 4. Tamil Nadu Pollution Control Board, Rep. by its Chairman, No.76, Mount Salai, Guindy, Chennai – 32. .. Respondents R4 impleaded as per order dated 21.06.2010 in M.P.No.1 of 2010 in W.P.No.23163 of 2009 PRAYER : Writ Petition filed under Article 226 of the Constitution for issuance of a writ of Certiorarified mandamus to call for the concerned records from the 1st respondent to quash G.O.Nilai No.191 Municipal Administration and Water Supply (Na.Ni.4) Department dated 12.10.2009 issued by the 1st respondent as illegal, arbitrary and contrary to law and consequently direct the respondents to establish the Tindivanam bus stand in a place other than in S.No.33/4 and 36/5 which is part of the Tindivanam Eri. For Petitioner :Ms.R.Vaigai for Mr.Balan Haridas https://hcservices.ecourts.gov.in/hcservices/ For Respondents :Mr.P.S.Raman Advocate General assisted by Mr.J.Rajakalifulla, G.P. for RR1-2 Mr.P.Srinivas for R3 Mr.R.Raman Lal for R4 O R D E R THE HON'BLE THE CHIEF JUSTICE & T.S.SIVAGNANAM, J. By way of this Public Interest Litigation, the petitioner has prayed for issuance of a writ of Certiorarified Mandamus to quash the Government order in G.O.Ms.No.191, Municipal Administration and Water Supply Department, dated 12.10.2009 and for a direction upon the respondents to establish the Tindivanam bus stand in a place other than survey No.33/4 and 36/5, which is part of Tindivanam eri. 2(i).The petitioner is a resident of Tindivanam and he was born and brought up at Tindivanam and the primary objection raised in this writ petition is regarding the location of the proposed new bus stand at Tindivanam in R.S.No.33/4 and 36/5 measuring an extent of 6 acres, which is classified as Eri. 2(ii) The Case of the petitioner could be summarized as follows:- The third respondent Municipality made a request on 27.11.1991 to the Government to grant permission to them to enter upon the land comprised in R.S.No.33/4 & 36/5, measuring an extent about 6 acres for the purpose of construction for a new bus stand, pending finalization of the alienation of the land. After a period of more than seven years, the respondent Municipality passed a resolution on 25.05.1998, giving its concurrence for alienation of the said land for the new bus stand and the District Collector recommended the proposal to the Government. The Government by G.O.Ms.No.101, dated 05.03.2001 passed orders for alienation on payment of a sum of Rs.12,79,488/- towards the cost of the land and Rs.1,361/- towards the standing trees. It is stated that the respondent Municipality remitted the amount and land was handed over to the Municipality on 14.01.2003. It is stated that there was public opposition for establishment of the new bus stand in the Eri and the Municipal Council of the third respondent Municipality passed a resolution on 30.07.2004 to establish a new bus stand in survey No.202, measuring an extent of 6 acres, which belonged to the Wakf Board (hereinafter referred to as the Wakf land). It is stated that the Wakf land is situated about 250 mts from the existing bus stand and is within the Tindivanam town. Based on such resolution, steps were taken by the respondent Municipality to appoint a Consultant on tender basis for the establishment of the new bus stand. This resolution of the Municipality appears to have been challenged by way https://hcservices.ecourts.gov.in/hcservices/ of the writ petition before this Court and the writ petition was dismissed. (iii) The respondents 2 and 3 proceeded with the necessary formalities to establish the new bus stand in Wakf land. It is stated that the report submitted by the District Collector dated 11.02.2005, certified that the land is suitable for construction of the new bus stand. The Wakf land was proposed to be taken on lease and the Wakf Board agreed upon the lease amount and the same is stated to have been remitted by the Municipality. The Government by G.O.Ms.No.136, dated 15.09.2005, accorded permission to the respondent Municipality to take over the wakf land on lease basis for construction of the new bus stand. While so, the respondent Municipality passed another resolution in its emergency meeting held on 13.06.2006, seeking approval for the construction of the new bus stand in the eri site instead of the wakf land. The petitioner filed a writ petition being W.P.No.19388 of 2006, challenging the said resolution dated 13.06.2006 and for a consequential direction upon the respondent to implement the G.O.Ms.No.136, dated 15.09.2006, where the Government accorded permission to establish the bus stand in the wakf land. The said writ petition along with W.P.No.7243 of 2007, was disposed of by a common judgment and order dated 22.07.2009, with a direction to the Government to take a final decision in the matter. The Government by G.O.Ms.No.191, dated 12.10.2009, permitted the establishment of the new bus stand in the eri site and cancelled the earlier Government order permitting to establish the new bus stand in the wakf land. This Government order in G.O.Ms.No.191 is impugned in this writ petition. (iv) Grounds of challenge:- That the action of the Government in passing the impugned order permitting establishment of a new bus stand in eri is illegal and contrary to law. The Government in order to protect water bodies, directed, removal of the encroachments and issued stringent guidelines as to how, such encroachment should be removed from water bodies and in such circumstances, the Government cannot pass an order permitting establishment of a bus stand in a water body. If the bus stand is permitted in the water body, it will result in decimating the water body and will have a devastating impact on the water table and the public will be affected and the damage caused cannot be reversed. The Government by sacrificing the public interest cannot establish a bus stand in a water body. That the Division Bench while disposing of W.P.No.19388 of 2006 and W.P.No.7243 of 2007, directed the Government to take into consideration, the law laid down by the Court, the Government orders insofar as protection of water bodies and directed to decide the issue as to whether the bus stand should be established and without considering the directions, the Government issued the impugned order only based on the financial benefits of establishing the bus stand on an eri over looking the long term impact of the environment. The water in the eri is not only used for https://hcservices.ecourts.gov.in/hcservices/ irrigation purpose, but it is a source for recharging the ground water and the Government has ignored such factors. It is further stated that the establishment of hospital in the Mundiampakkam eri has no relevance to the present case. While passing the impugned order, there has been no scientific study and no report was obtained from any scientific body about the impact of closing the eri. On the above grounds, the petitioner has sought for quashing the impugned Government order. 3. In the counter affidavit filed on behalf of the respondents 1 to 2, it is stated that the total extent of the eri is 28.01 acres and only an extent of 5 acres is alienated for the construction of the bus stand and the remaining area remains unchanged. An extent of 6 acres including 1 acre of Thoppu Poromboke, which was alienated for the purpose of construction of the new bus stand has been levelled and cleared. Based on the approved civic design, estimate has been prepared to the tune of Rs.818.50 lakhs by the Council in its resolution dated 22.10.2009 and requested the second respondent for financial assistance from the Government and necessary administrative sanction has also been accorded. The District Collector has also recommended the proposal. It is further stated that the Commissioner of Municipal Administration inspected the existing bus stand and the proposed site in the eri and submitted a report justifying the shifting of the bus stand by assigning two reasons, namely that the existing bus stand is highly congested; and the approach road for the bus stand from NH-45 is very narrow and precarious. After inspecting the eri site, it was opined that it is advisable to locate the bus stand in the eri and considering the long term interest, the bus stand could be shifted to the eri site. It is further stated that the meeting was convened by the Revenue Divisional Officer with 23 officials from various department and other dignitaries of the Tindivanam town attended the meeting on 30.10.1999. Inspection was conducted and after detailed discussion, it was held that the eri site was suitable. The Government while granting approval clearly indicated that the exemption granted from the ban orders of the Government prohibiting alienation of land in water bodies with the condition that the site should be used only for the purpose of constructing bus stand. Therefore, the action of the respondents is in public interest and as per norms prescribed to protect water bodies. There are many residents close to the eri than the petitioner and there is not even a single objection from the public to any of the authorities and if the bus stand is shifted, it will be beneficial to the public. As regards the wakf site, it was initially decided to take on lease for 99 years and the conditions were onerous and there are several litigations by the occupiers of the wakf land and by depositing the lease amount, it would cause a drain on the funds of the Municipality. Therefore, it was thought fit to drop such proposal. The Government have issued similar orders alienating portion of the eri land in favour of Krishnagiri Municipality for construction of bus stand and Mundiampakkam eri land for locating a https://hcservices.ecourts.gov.in/hcservices/ Government Medical College. Therefore, the Government took into consideration all relevant factors and passed the impugned Government in order to sub-serve public interest. It is further reiterated that only five acres of the upper side of the eri is being taken over and there was no water stagnation and the eri has no ayacut and by taking an extent of five acres, no prejudice would be caused as mentioned by the petitioner. The counter affidavit has given details of the various water bodies in Tindivanam town and stated that there are 55 lakes and eris in and around the town and there are bigger lakes and eris in the town than the Tindivanam eri from which five acres of land has been transferred for the bus stand. The technical details of the eri have also been mentioned in the counter affidavit. Further, it is stated that after the formation of the bus stand, the impact on the surrounding areas is very minimal and the over flow from the lake is through a channel situated on the southern side of the land and the proposed bus stand is only on the northern side. Therefore, it is stated that considering all the relevant factors, the Government took a decision to locate the new bus stand in the eri site. The third respondent Municipality through its Commissioner has filed a counter affidavit reiterating the averments made in the counter affidavit filed by the Government. 4. It appears that the Tamil Nadu Pollution Control Board was not impleaded as a respondent in the writ petition and this Court by order dated 21.06.2010 in M.P.No.1 of 2010, directed the impleadment of the Tamil Nadu Pollution Control Board as the fourth respondent in the writ petition. In the counter affidavit filed by the Board, it has been stated that this Court by order dated 01.03.2010, directed the Board to consider the application dated 26.02.2010, submitted by the respondent Municipality for grant of consent and pass appropriate orders. Pursuant to the order, the petitioner was requested to appear for a personal hearing on 05.04.2010 and on a request made by the petitioner for an alternate date, the personal hearing was held on 12.04.2010 and the petitioner appeared for the hearing and submitted his oral and written submissions. That the Board constituted an expert committee comprising of Assistant Professor from Anna University, Superintending Engineer from PWD Ground Water Division, Superintending Engineer from Agricultural Engineering Department and the Committee inspected the site and submitted its report. These were considered by the Consent Clearance Committee in its meeting held on 07.09.2010 and Consent Clearance Committee directed the respondent Municipality to make certain alterations in the layout plan and considering all the factors, order of consent dated 11.11.2010 was issued. If the writ petitioner is aggrieved by such order of consent his remedy is to file an appeal as contemplated under Section 28 of the Water Act and Section 31 of the Air Act and the writ petition is not maintainable. It is further stated that the project does not require the clearance under the Environment Impact Assessment Notification dated 14.09.2006, as the proposed built up area is much less than what is covered under the notification. https://hcservices.ecourts.gov.in/hcservices/ Finally, it is stated that while granting consent, the Board has imposed sufficient conditions to safeguard the environment and preservation of the water body. 5. Ms.R.Vaigai, the learned counsel appearing for the petitioner after reiterating the stand taken in the affidavit filed in support of the writ petition submitted that the impugned Government order has been passed ignoring direction issued by the earlier Division Bench of this Court in its order dated 22.07.2009, wherein the Division Bench took note of various factors including the report of the Revenue Officials dated 19.12.1994, wherein it was opined that the proposal of the transfer of the eri land may be given up. Further, the learned counsel invited our attention to the Government order in G.O.Ms.No.136 dated 15.09.2005, by which the Government agreed to establish the new bus stand in the wakf site and that the said Government order was also taken note by the earlier Division Bench while disposing of the writ petitions. Further, it is stated that the earlier Division Bench took note of the fact that the respondent Municipality passed the resolution dated 13.06.2006, when earlier two Government orders were neither cancelled nor withdrawn. Further, it is pointed out that the Division Bench had observed that while passing G.O.Ms.No.101, the Government did not consider the impact of the transfer of the eri land for the proposed new bus stand. It is further submitted that the earlier Division Bench took note of all the factors and then remitted the matter to the Government to pass appropriate orders as indicated by the Division Bench and the impugned Government order has been passed in utter discard to the directions issued. Further, it is submitted that the Tamil Nadu Pollution Control Board was not consulted and inspite of a direction issued by the Division Bench on 21.06.2010 to furnish documents to the petitioner, the Pollution Control Board did not comply with the said direction. The order passed by the Pollution Control Board granting consent is against the order passed by the earlier Division Bench and the law enacted by the State Government for the protection and preservation of water bodies and therefore, the impugned order calls for interference. 6. The learned counsel further submitted that in terms of the notification issued by the Central Government dated 14.09.2006, under the Environment Protection Act and Rules framed thereunder, it is mandatory to obtain prior clearance from the Environment Impact Assessment Authority and in terms of Clause 8 of the schedule to the notification r/w the General Condition (GC), prior Environment Impact Assessment Clearance is mandatory. The learned counsel submitted that in terms of the General Condition any project specified in category 'B' of the notification will be treated as a category 'A', if it is located in a notified eco-sensitive area and in terms of the State Laws enacted for the purpose of preserving water bodies, the eri in question is undoubtedly an eco-sensitive area and therefore prior clearance is mandatory. The learned counsel further submitted https://hcservices.ecourts.gov.in/hcservices/ that in the impugned order, reliance has been placed on earlier Government order in G.O.Ms.No.101, which cannot be done in view of the earlier Division Bench Judgment, which remanded the matter for fresh consideration. The impugned Government order is a mechanical reiteration of the earlier order and it has been passed unmindful in the earlier Division Bench order and economic pros and cons alone were taken into consideration while passing the impugned order. If six acres of water body are taken then the entire eri would be affected and it would be against public interest. In support of her contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in (2001) 6 SCC 496 [Hinch Lal Tiwari vs. Kamala Devi and others], (2006) 6 SCC 371[Karnataka Industrial areas vs. C.Kenchappa and others] and a Division Bench Judgment of this Court in 2005 (4) CTC 1[L.Krishnan vs. State of Tamil Nadu]. 7. The learned Advocate General and the learned Government Pleader appearing for the respondents 1 & 2 and submitted that the notification issued by the Central Government is not applicable to the present project as it would apply only to building and construction projects about 20000 sq.mtrs and below 1,50000 sq.ft. of built up area and the proposed construction is only 6832.55 sq.mtrs and therefore, no clearance is required from the Environment Impact Assessment Committee. It is further submitted that the Tamil Nadu Pollution Control Board granted an order of consent both under the Water Act and Air Act and after an expert body examined the application and several changes have been made in the lay out plan to protect the eri. It is further submitted that the eri in question is a rain fed water body and during summer, it is dry and the Government proposed to increase the existing depth of the eri by 8cms(1.31 inches) or in the alternative to increase the bund height to the same extent and if the same is done, it will maintain the capacity of the eri and no prejudice would be caused. Further, as per the order of consent, rain water harvesting has to be done, there is a Green belt area and a buffer zone has to be created and these conditions sufficiently safeguarded the preservation of the area. Further, the learned Advocate General submitted that as per the revenue records, the eri in question is not a source of irrigation as contended by the petitioner and only during 1998 and 2005, the eri reached its full capacity and if the deepening of the eri is done or the tank bund is increased in height, it would sufficiently take care of any situation in the event there is maximum in flow of water. The learned Advocate General by relying upon a topo sketch of Tindivanam town submitted that the proposed site is very near to the new bye-pass road and locating the new bus stand at this site would be in the interest of the travelling public and the existing bus stand is highly congested and the condition prevailing therein is precarious and if the bus stand is allowed to be located in the present site, it would satisfy the need of the public of the Tindivanam town as well as the other travelling public, who have been denied such benefit for the past 20 years. Therefore, it is submitted that the writ petition is devoid https://hcservices.ecourts.gov.in/hcservices/ of merits and liable to be dismissed. In support of his contention, the learned Advocate General placed reliance on the decision of the Division Bench of this Court in (2008) 7 MLJ 876 [K.Balamurugan and others vs. State of Tamil Nadu]. 8. The learned counsel appearing for the Pollution Control Board took us through the various conditions imposed in the consent orders issued by the Board and submitted that a thorough study has been conducted by the expert committee before the Consent Clearance Committee considered the issue and the petitioner has been afforded an opportunity to submit his oral and written submissions before the committee and after carefully examining all the factors, the order of consent has been issued. 9. We have elaborately heard the submission of the learned counsel appearing for the petitioner, the learned Advocate General and the learned Government Pleader appearing for the respondents 1 & 2 and the learned Standing counsel appearing for the third respondent Municipality and the Pollution Control Board and perused the materials available on record. 10. The petitioner is a native of Tindivanam town appears to have a grievance as regards the location of the new bus stand at Tindivanam. From the averments made in the affidavit and on hearing the submissions of the learned counsel for the petitioner, it is clear that the petitioner is not opposing the establishment of a new and modern bus stand, but his grievance is that it should not be located in the present site, which is part of an eri (water body). Broadly, the objections raised by the petitioner is three fold. Firstly, on the ground that the wakf site is more suitable and the Government has also approved the same and without establishing the bus stand in the said site, the respondent Municipality passed a resolution to locate the bus stand in the eri site and recommended the same to the Government and inspite of the Government having rejected the said proposal earlier, thought fit to approve the same on the second time. That these issues were placed before the Division Bench of this Court in an earlier writ petitions in W.P.Nos.19388 of 2006 and 7243 of 2007 and the Division Bench after elaborately considering all the issues, directed the Government to reconsider the matter. In such circumstances, the Government cannot rely upon the earlier Government order and state that the bus stand has to be located in the eri site. Secondly, it is contended that a Division Bench of this Court in the case of L.Krishnan vs. State of Tamil Nadu, referred supra, directed the State Government to take necessary legal steps to remove all the encroachments in water bodies to its original position, so that the suffering of the people of the State due to water shortage is ameliorated. After the order passed by the Division Bench, the State Government enacted a law for the protection of the water bodies, namely the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 and in utter derogation to the https://hcservices.ecourts.gov.in/hcservices/ said Act, the impugned order has been passed converting a water body for a bus stand. Therefore, the State Government's action is arbitrary and against the statue framed by the State Government. Thirdly, it is contended that the Tamil Nadu Pollution Control Board has not conducted any scientific study about the impact of the conversion of the eri into a bus stand and in terms of the notification issued by the Central government dated 14.09.2006, the present project is in a notified eco-sensitive area and therefore, prior concurrence of the Environment Impact Assessment Authority is essential and admittedly, no such approval has been obtained and therefore, the impugned order is liable to be set aside. Apart from the above primary submissions, the learned counsel appearing for the petitioner submitted that the encroaching to an extent of six acres in water body is objectionable and the Government cannot place any reliance on the decision taken by them to construct a Government Medical college in Mundiampakkam eri as the facts in the said case are entirely different and in the instant case, the Government themselves admitted that the lake is used for storage of water and therefore, impugned order is unsustainable. 11. Before, we examine the facts of the case, it would be necessary to look into certain decisions of the Hon'ble Supreme Court