IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.07.2010 Coram THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND The HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.Nos.17915 of 1993 & 25776 of 2006 & M.P.Nos.1 to 4 of 2006 & 1 of 2010 W.P.No.17915 of 1993 Consumer Action Group rep.by Kavitha.M Co-ordinator – Legal Madras-60 028. : Petitioner vs. 1. Project Director and Member Secretary Project Management Group Madras. 2. Chairman Tamil Nadu Housing Board Madras. 3. Secretary Municipal Administration & Water Supply Department Madras. 4. Secretary Housing and Urban Development Madras. 5. Member Secretary Madras Metropolitan Development Authority Madras. 6. Managing Director Madras Metropolitan Water Supply and Sewerage Board Madras. https://hcservices.ecourts.gov.in/hcservices/ 7. The Executive Director Housing and Urban Development Corporation Madras. 8. Secretary Public Works Department Madras. 9. State of Tamil Nadu rep. by its Secretary, Ministry of Environment and Forests Department Madras-9. R9 impleaded as per order dated 3.8.1994 in W.M.P.No.20245 of 1994 : Respondents W.P.No.25776 of 2006 Anti Corruption Movement rep.by its General Secretary No.7, Kaveri Street Gandhi Nagar, Saligramam Chennai-60 093. : Petitioner -Vs.- 1. The Government of Tamil Nadu Public Works Department rep.by its Secretary Fort St.George Chennai-60 009. 2. The Chennai Metropolitan Development Authority rep.by its Member Secretary Gandhi Irwin Road Chennai-60 08. 3. Managing Director Chennai Metropolitan Water Supply & Sewerage Board Pumping Station Road Chennai-600 002. 4. The Chief Engineer (Chennai Region) Water Resources Organisation Public Works Department Chepauk, Chennai – 5. : Respondents https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.No.17915 of 1993:- Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus forbearing the respondents from changing the original use of the water catchment and ground water areas in the State of Tamil Nadu. PRAYER in W.P.No.25776 of 2003:- Petition filed under Article 226 of the Constitution of India praying to issue a writ of Declaration declaring that the encroachments in water bodies and water courses such as houses, bus stands, factories etc. constructed either with permission of the State by way of re-classification or issuance of patta or without permission of the State are illegal, unconstitutional and crime against mankind and consequently direct the first respondent. (i) to cause eviction or removal of all types of encroachments in water bodies and water courses in the State viz., under the control of Public Works Department, Local bodies, etc., before the ensuring monsoon during October, 2006; (ii) to restore all the water bodies nad water courses to their original shape, size, capacity etc., before the ensuring monsoon during October, 2006; (iii) to direct the first respondent to submit periodical reports in compliance of the directions before this Honourable Court till completion of eviction of all encroachments in the State; (iv) to initiate department and/or criminal action against the District Collectors and other officers concerned for having allowed or failed to evict encroachments even after the orders dated 27.6.2005 of this Honourable Court in W.P.No.20`186 of 2006. (v) to evolve a scheme fixing responsibility on the officials for preventing or/and evicting encroachments in public premises in all departments and publish in the Government Web site; and this Honourable Court may pleased to supervise themselves and through a body of public, advocates and experts the aforesaid entire operations. Mr.N.L.Rajah for Mr.G.Anbumani : For Petitioner in W.P.No.17915 of 1993 Mr.N.Subramaniyan : For petitioner in W.P.No.25776 of 2006 Mr.G.Desingu Spl.Govt.Pleader : For RR 1 to 4 in W.P.No.25776 of 2006 & For R9 in W.P.No.17915 of 1993 Mr.B.Mani : For R3 in W.P.No.25776 of 2006 https://hcservices.ecourts.gov.in/hcservices/ Mr. J.Ravindran : For R2 in W.P.No.25776 of 2006 ` Mr.K. Ilango : For RR1,2 in W.P.No.17915 of 1993 Mr.C.Kathiravan : For R5 in W.P.No.17915 of 1993 Mr.R.Priyakumar : For R7 in W.P.No.17915 of 1993 Mr.K.Baskara Pandian : For R6 in W.P.No.17915 of 1993 O R D E R K.K.SASIDHARAN, J These two writ petitions filed in public interest relate to the change of original use of the water catchment and water areas in the State of Tamil Nadu and seeks preservation of water bodies and water courses. 2. The writ petition in W.P.No.17915 of 1993 has been preferred by the Consumer Action Group and in their affidavit filed in support of the writ petition, they have primarily contended thus: (a) The Madras City and its surrounding areas are now facing acute water shortage. The per capita consumption of water in Madras is 70 litres per day compared to 140 litres of Delhi or Bombay. The average demand of the City is not less than 1000 ml per day. But however, the water supply was only 250 ml every alternate day. Therefore the situation has come to a stage that the City does not get the pipe line supply even for a single day. The ground water resources are drying up and Madras being a coastal town with the current rates of depletion, there is a possibility of sea water intrusion into the fresh water resources. (b) The Madras Metropolitan Area is watered by Arniar, Kusasthaliyar, Cooum and Adyar rivers. There are number of small tanks called eris in Arniar, Kusasthaliyar, Cooum and Adyar basins. These eris are reservoirs of water contained behind earthen bunds or embankments. The bund surrounds the water on three sides and the fourth side is open for the catchment from which water flows down to collect in the eri. These eris are fed by channels diverted from rivers and they are linked in a chain within themselves and to the river and act as micro flood regulators exchanging their surplus at times of monsoon or rain. The collected water percolates into the ground enriching the ground water in the area as well as recharging the shallow acquifers below. These eri storages should be maintained unencroached and continued as small water bodies within the metropolitan area to enrich the ground water for local use, to serve small ayacuts, recharge the acquifers and offer many more intangible https://hcservices.ecourts.gov.in/hcservices/ benefits for the society. (c) The respondents have failed to take proper and adequate measures to conserve water by augmenting the storm water run off, by restoring the various storage structures and have proceeded to take away the rights of the people living in the peripheral areas of the Madras City. These large eris in the peripheral areas of Ambattur, Velachery, Kakkalur and Nolambur were serving as irrigation tanks, enriching the wells in that area, acting as large storages and flood moderators, preserving soil erosion and helping to maintain a healthy environment and a good eco system in the area. The action of the respondents in reducing the water spread area, obliterating the storage space can be interpreted as systematic destroyal of the assets of the locals in the area under the pretext of promoting houses, even though vociferous opposition have been raised by the local people. (d) The action of the respondents to usurp the tank porumboke, lake areas and catchment areas for building purposes without taking into account the future impact of its actions, were in gross violation of statutory duty to protect and improve the environment under Article 48-A of the Constitution of India. Therefore, the petitioners seek a writ of Mandamus to restrain the respondents from changing the original use of the water catchment and ground water areas in the State of Tamil Nadu for developmental activities or any other use. 3. The petitioners in W.P.No.25776 of 2006 seek a writ of declaration to declare that the encroachments in water bodies and water courses such as houses, bus stands, factories etc., are constructed either with the permission of the State by way of re- classification or issuance of patta or without such permission are illegal and unconstitutional with a consequential direction to the State of Tamil Nadu to evict all types of encroachments in water bodies and water courses in the State and to restore all the water bodies and water courses to their original shape with punitive action against the District Collectors and other officers for having allowed or failed to evict encroachments . 4. In the affidavit filed in support of the writ petition in W.P.No.25776 of 2006, the petitioner would contend thus:- (a) The State of Tamil Nadu has been seriously affected by unprecedented floods during October and November, 2005 and because of that, number of people were dead and many people lost their property forcing the State to incur expenditure to the tune of several thousand crores of rupees by way of relief measures. The entire loss due to the flood was due to maladministration and prevailing corruptive practices as almost all the water bodies and water courses were allowed to be encroached upon resulting in reduction in their https://hcservices.ecourts.gov.in/hcservices/ flood storing and carrying capacity, forcing the water to deviate from its regular course and enter the residential areas causing devasting effects. (b) The water bodies initially were having a total area of 98,78,277 sqm and it was reduced to 50,42,082 sqm, which would be equal to 50% reduction and therefore it is evident that almost 50% of the storage capacity has been reduced. This prompted the State to draw water from veeranam tank which is situated away from the City and to go for de-salination of sea water at huge cost. The situation warrants augmentation of more water to meet the basic and essential needs of drinking water for the residents of Greater Chennai. The respondents have permitted construction of houses in the water bodies. This resulted in inundation of these areas during flood and all these houses submerged under the flood water. (c) The first respondent by way of G.O.Ms.No.186 Revenue Department dated 29.4.2003 have issued orders to the District Collectors to remove the encroachment. However there was no follow up action. Similarly, as per order dated 27 June, 2005 in W.P.20186 of 2000, this Court directed the Government to remove the encroachments and restore the water bodies. However the said order was also not complied with. The failure of the authorities had resulted in huge loss of lives and public funds during floods in the months of October and November, 2005. The authorities pretended to act swiftly in removing encroachments but only in a selective manner and not in a planned and determined manner. They have gone even to the extent of initiating criminal cases against Dr.M.G.R.University for having encroached the Cooum river. However no follow up action was taken subsequently. (d) The authorities in power cannot destroy the water bodies or water courses formed naturally for the benefit of mankind for ever and it was beyond the power of the State to alienate or re-calssify the water bodies for some other purposes without compensating the effect of such water bodies. Therefore the petitioner seeks a larger relief of eviction of all types of encroachments in water bodies and water courses in the State of Tamil Nadu by issuing a writ of declaration, declaring those encroachments as illegal and unconstitutional as well as a crime against society. 5. When these two writ petitions came up for consideration, Division Bench of this Court was pleased to issue the following directions. (i) The Secretaries, Public Works Department, in consultation with the respective District Collectors, are directed to decide the programme of evicting the encroachments in the water bodies falling in Categories 'A' and 'B' referred to above, by the end https://hcservices.ecourts.gov.in/hcservices/ of November, 2007 and complete the process of removal of such encroachments by the end of May, 2008. (ii) The State Government is at liberty to consider, in appropriate cases, grant of alternative sites for re-location of the encroachers, as per their policy decision. All the authorities concerned like the local authorities as well as the police officials, will extend their full co-operation to the Public Works Department/District Collectors for effectively implementing the policy decision of the Government of removal of encroachments from water bodies. (iii) No civil court shall entertain any suit or proceeding in connection with the removal of the encroachments in the water bodies and every person, who has put up any construction in such water bodies and who is aggrieved by the action taken by the authorities of removal of such encroachment from the water bodies, is at liberty to move this Court under Article 226 of the Constitution of India and all such applications shall be placed before the First Bench of this Court. (iv) The State Government is directed to identify and take stern action against the land grabbers who have sold the lands in the water bodies to innocent purchasers, which would act as a deterrant. The survey numbers of the lands in various water bodies in question are directed to be notified and the Registration Department concerned is directed not to register any transaction in respect of such lands falling under the water bodies. (v) In respect of the Porur tank, the respondents have already removed all the encroachments and the said water body is free of any encroachment. In case any encroachment is made on the water body in future, it will be open for the authorities to remove such encroachment even without issuing any notice to such encroachers. (vi) It is also made clear that even after the encroachments from the water bodies are removed as per the policy decision of the State Government, the respective District Collectors shall keep a close watch over such water bodies and in case of any fresh encroachment thereon, the District Collectors are at liberty to remove the same with the help of police, https://hcservices.ecourts.gov.in/hcservices/ wherever necessary, without any notice to such encroachers." 6. The Chief Engineer, Public Works Department has filed an affidavit on 6 September, 2007 explaining the steps taken for rehabilitation of tank to their original status. According to the Chief Engineer, action has been taken to restore some of the local bodies but however it was not possible to restore some tanks as they are the subject matter of encroachments. 7. The Chief Engineer has also produced the Minutes of the meeting dated 18 September, 2007 and 2 November, 2007 convened by the Government to take follow up action on the basis of the order passed by this Court. In those two meetings it was decided to take up the matter in different stages. It was decided that the eviction of the encroachments in the first round of tanks should be completed before 7 December, 2007. Simultaneously, the Collectors were directed to evolve further action plan in respect of the remaining tanks. The authorities were also directed to take measures for re-location and provision of basic infrastructure at the new re-location areas. It was also resolved that the Collectors would guide further programme of carrying out eviction of encroachments and protecting the tanks from future encroachments, for which detailed guidelines could be given fixing the responsibilities on field officers of both Revenue and Public Works Department. 8. The Principal Secretary to Government, Public Works Department has filed another action taken report. In the said report, it was stated that the water resources department with the help of District Collectors of Kancheepuram, Thiruvallur and Chennai began surveying the tank boundaries, identifying the encroachments and issued notices to all the encroachers in the prioritised tanks viz., Pallikkaranai, Narayanapuram Tank, Kovilambakkam Tank, Tambaram Pudu Thangal, Arapatheri Tank, Korattur Tank and Ayanambakkam Tank. While the eviction process was on, in Arapatheri, Korattur and Ayanambakkam tanks, there was stiff resistance from the encroachers by way of refusal to receive notices, obstructing road traffic, preventing Government Officials from entering the encroached habitations and indulging in certain abusive and violent activities. There were also statements from some political leaders against the eviction of encroachments. The eviction was started as per the earlier programme in Arapatheri tank on 17 May, 2008 and out of forty six encroachments, thirty three encroachments were removed and the balance could not be removed due to pending writ petitions before the High Court. The alternate site for the evictees was provided in Thirupalaivanam Village of Ponneri Taluk. 9. The Government had constituted a High Level Committee under the Chairmanship of the Honourable Minister for Revenue and Housing in G.O.Ms.No.201, Public Works Department dated 10.6.2008 to find a https://hcservices.ecourts.gov.in/hcservices/ suitable methodology for evicting the encroachments and also for taking effective action in carrying out the orders of the High Court. The Chairman, High Level Committee, accompanied by the members of the meeting, made spot inspection of encroachments in Ambattur, Korattur and Ayanambakkam Tanks on 21 September, 2008 and heard the views of the encroachers as well as their leaders. The High Level Committee also conducted a meeting on 1 September, 2008 with the officials and with the political members to find suitable ways and means for evicting the encroachments. During the meeting, the method of eviction was discussed and the Committee has formulated a suitable strategy for eviction of encroachments from the prioritised tanks namely, Pallikkaranai Narayanapuram Tank, Kovilambakkam Tank, Tambaram Pudu Thangal, Arapatheri Tank, Korattur Tank and Ayanambakkam Tank. In those tanks, the eviction process like demarcation of boundaries, identification of encroached areas and issue of notices to encroachers were taken up in co-ordination with revenue and police departments. 10. While this process was going on, floods occurred during November, 2008. The surrounding localities of many tanks and its surplus courses were badly affected due to inundation caused by encroachments in tanks and its surplus courses like Ambattur and Pallikaranai Narayanapuram tanks. The then Principal Secretary to Government, Public Works Department, the Collector, Thrivallur and the Public Works Department officials inspected the affected areas and Ambattur tank. Instructions were issued to the District Administration and the officials of the Public Works Department to take immediate steps to evict the encroachments in Ambattur tank and surplus courses and other tanks of similar nature under flood problem, in order to recede flood water quickly. Accordingly, eviction of encroachment was taken up in Ambattur and other tanks. Due to eviction of encroachments from those tanks and its surplus courses, flood inundation in the adjacent areas reduced considerably. The water bodies are thus saved for recharging the depleting ground water table. 11. The Principal Secretary has also produced details about eviction of encroachments in the Districts of Kancheepuram, Thiruvallur and Chennai. According to the report, the process of eviction has become time consuming and therefore the Principal Secretary wanted this Court to grant extension of time for a further period up to May, 2010 to complete the eviction of encroachments in the water bodies. 12. The learned counsel for the petitioners in both the writ petitions drew our attention to the report of encroachment of water bodies and wanted this Court to issue appropriate directions to remove the encroachments at the earliest and to restore those water bodies. According to the learned counsel, the State has no concern to the water bodies and they were protecting the encroachers for various https://hcservices.ecourts.gov.in/hcservices/ reasons. The learned counsel would further contend that the respondents were taking time under the pretext of implementing the orders of this Court. However, no concrete efforts were taken in this regard. Therefore the learned counsel seeks directions from this Court to restore the water bodies to its original position. 13. The learned Special Government Pleader appearing on behalf of the respondents would submit that the process of eviction is a time consuming process. It requires notice to the encroachers and they should also be heard. Writ Petitions are also pending before this Court in the matter of eviction of encroachers of water bodies. Therefore it is not possible to evict the encroachers all of a sudden and the State is taking all possible steps to restore the water bodies. The learned Special Government Pleader would further submit that State needs further time to complete the process of eviction of encroachers. DISCUSSION:- 14. Though originally there was no provision in our constitution to protect the environment and ecology, by way of amendment, Article 48-A was inserted in part IV, whereby and whereunder a duty was cast on the State to endeavour to protect and improve the environment and to safeguard the forests and wildlife of the Country. Article 51-A was also inserted in part IV-A of the Constitution, which contains fundamental duties of every citizen. Article 51A(g) in categorical terms declares that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. 15. India was a party to the Stockholm Convention organized by the United Nations in the year 1972. The declaration in the said conference that natural resources of the earth including air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate, is binding on India. 16. The details furnished by the petitioners in the respective writ petitions gives an indication about the sorry state of affairs. Even as per the status report filed by the respondents, the encroachers have made large scale encroachments in water bodies and they have also put up buildings after filling up such water bodies and water courses. Therefore the question is one of restoration of water bodies. Such a course is possible only by way of joint efforts by the Government as well as the people. 17. There was an earlier writ petition filed in public interest for removal of encroachments made by certain people in 'odai https://hcservices.ecourts.gov.in/hcservices/ poramboke' in the village of Tatchur in Kallakurichi Taluk measuring about 5 acres and 70 cents. When the said writ petition was taken up by the Division Bench, it was found that water bodies were encroached upon on a large scale. The Division Bench opined that having regard to the acute water scarcity prevailing in the State of Tamil Nadu, as a whole, a time has come where the State has to take some definite measures to restore the already ear marked water storage tanks, ponds, lakes as disclosed in the revenue records to its original status as part of its rain water harvesting scheme. The observation of the Division Bench in L. KRISHNAN v. STATE OF TAMIL NADU (2005 (4) CTC 1) reads thus: "6. It is also relevant to state that day in and day out, many such petitions are being filed by way of 'public interest litigation' alleging encroachments into ponds/tanks/lake/odai porambokes etc. in different parts of this State, more particularly in villages. Having regard to the acute water scarcity prevailing in the State of Tamil Nadu as a whole, we feel that a time has come where the State has to take some definite measures to restore the already ear marked water storage tanks, ponds and lakes, as disclosed in the revenue records to its original status as part of its rain water harvesting scheme. We also take judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a time bound programme in order to ensure that the frequent acute water scarcity prevailing in this State is solved as a long time measure. In fact, the classification as Ooranis, Odais, and Lakes in the revenue records are all areas identified in the villages where the rain water gets stored enabling the local villagers to use the same for various purposes throughout the year inasmuch as most parts of the State are solely dependent on seasonal rains both for agricultural operations as well as for other water requirements. Therefore, it is imperative that such natural resources providing for water storage facilities are maintained by the State Government by taking all possible steps both by taking preventive measures as well as by removal of unlawful encroachments." https://hcservices.ecourts.gov.in/hcservices/ 18. The Division Bench disposed of the writ petition with the following directions: "14. Therefore, we direct the respondents 1 to 5 to take necessary legal steps to remove the alleged encroachments made by the respondents 6 to 12 as well as the petitioner over Odai Poramboke in Iyan Punji