IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-04-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.NOs.16636 OF 1995 & 22274 OF 2007 and M.P.NOs.1 OF 2007 & 2 & 3 OF 2008 W.P.NOs.16636 of 1995 Sivakasi Region Tax Payers Association (Regn.S.No.81/94), Rep. by its Secretary .. Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Revenue, Fort St. George, Madras 600 009. 2. District Collector, Kamarajar District, Virudhunagar. 3. Sub-Collector, Sivakasi. 4. Thanthai Periyar Nagar People' Development Association, (Regn.No.6/93), rep. by its Secretary (Impleaded as per order dated 24.7.2001 in WMP.362/96 5. The Commissioner, Sivakasi Municipality, Sivakasi. (Impleaded as per order dt.24.7.2001 in WMP.No.1335 of 2001) .. Respondents W.P.No.22274 of 2007 Sivakasi Region Tax Payers Association (Regn.S.No.81/94), Rep. by its Secretary .. Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Revenue, Secretariat, Chennai 600 009. 2. The District Collector, Virudhunagar District, Virudhunagar. 3. The Secretary to Government, Municipal Administration & Water Supply Department, Secretariat, Chennai 600 009. 4. The Commissioner of Municipal Administration, Chepauk, Chennai 5. 5. The Commissioner, Sivakasi Municipality, Sivakasi. 6. Tahsildar, Sivakasi Taluk, Sivakasi West 626 124. 7. Parasakthi Nagar Ex-Servicemen Colony Welfare Association, Rep. by its Secretary .. Respondents W.P.NO.16636 of 1995 filed for issuance of Writ of Certiorarified Mandamus calling for the records of the 1st respondent in G.O.Ms.No.867 dated 13.9.1995 and quash the same and further direct the respondents to remove the encroachments in Siru Kulam Kanmai situated at Sivakasi Town in Survey No.579 (Old Number). W.P.No.22274 of 2007 filed for issuance of Writ of Certiorari calling for the records pertaining to the impugned order in G.O.Ms.No.854, Revenue Department, dated 30.12.2006 issued by the first respondent and quash the same. For Petitioner in WP.16636/1995 : Mr.R. Janakiraman For Petitioner in : Mr.N.R. Chandran WP.22274/2007 Senior Counsel for Mr.L.G. Sahadevan For State : Mr.P.S. Raman, Addl. Advocate General Assisted by Mr.M. Dhandapani Special Government Pleader For Respondent-4 in WP.16636/1995 : Mr.M.V. Venkataseshan For Respondent-5 in WP.16636/1995 : Mr. Venkatakrishnan For Respondent-7 in WP.22274/2007 : Mr.R. Subramanian Amicus Curiae : Mr.R. Subramaniam - - - COMMON ORDER P.K. MISRA, J W.P.NO.16636 of 1995 has been filed by Sivakasi Region Tax Payers Association for issuing a writ of Certiorarified Mandamus for quashing G.O.Ms.No.867 dated 13.9.1995 and for a further direction to remove the encroachments in Siru Kulam Kanmai situated at Sivakasi Town in Survey No.579. W.P.No.22274 of 2007 has been filed by the very same Association for issuing a writ of Certiorari for quashing G.O.Ms.No.854 Revenue Department dated 30.12.2006. 2. The relevant portion of G.O.Ms.No.867 dated 13.9.1995, impugned in W.P.No.16636 of 1995, is extracted hereunder :- "5. The Government considered the report submitted by the Commissioner for Land Administration. In the Siru Kulam Kanmai Poramboke, out of the 138 encroachments, 93 are residences, 36 are industries and 9 other encroachers. The above encroachments are near the banks of the Kanmai and they are there for the past 25 years. In this 102 encroachers were given Electricity connections, 2 encroachers were given water connection, 10 encroachers were given telephone connection. Apart from houses, there is one Mid-Day Meals Centre, Government Hostel for Ladies and a temple are there. When action was taken to remove the encroachments there was law and order problem and hence the action was stopped. Hence, even if action is taken to remove the encroachments, building with electricity, water and telephone connection, temple, workshop, ladies hostel, printer's Association, etc., would be put into difficulties and law and order problem may arise. Hence, taking into consideration of temple, Mid-Day Meals Centre, ladies hostel, building with electricity, telephone connection, the Government considers it difficult to remove the encroachments. 6. Taking into consideration what is stated in para 5 above, as a special measure the Government relaxes the earlier prohibition of assignment of Kanmai Poramboku land and the Government orders to convert the 138 encroachments in Siru Kulam Kanmoi Poramboku, Sivakasi Town into 'Natham'." 3. The purport of the subsequent G.O., is for the grant of patta to the persons who have constructed house and occupied the Government land by encroachment, subject to certain conditions. 4. The basic allegations as contained in the latter writ petition are as follows :- 4.1 Sivakasi is an industrial town, which is thickly populated with a total area of 7 sq.kms. There is acute shortage of water supply and people depend upon ground water. There is no perennial river flowing in Sivakasi Town and nearby, but there are two tanks in Sivakasi named Periya Kulam Kanmai and Siru Kulam Kanmai. Periya Kulam Kanmai is located on the western side of the Town and receives water from Sengulam Kanmai which is situated nearby Anaiyur village. When Periya Kulam Kanmai overflows, excess water flows into Siru Kulam Kanmai in one side and Thattar Oorani on the other side and to Parai Kulam Oorani on another side. Thattar Oorani has been encroached and is named as Jail Singh Nagar. The overflow water from Siru Kulam tank flows to Sivan Koil Oorani. This area and the nearby Mayanam (cremation ground) are encroached upon and Kudiyiruppu (residential area) is named as Anna Colony. When Sivan Koil Oorani gets filled up, excess water proceeds to Pari Kulam Oorani and the water passes through the Odai in Muslim Middle Street, Muslim Odai Street, Kathan Street, New Road Street, Potha Marathu Oorani and goes out of the town. These Periya Kulam and Siru Kulam, Thattar Oorani, Sivan Koil Oorani and Potha Marath Oorani are the largest reservoirs in the Sivakasi and the main source of ground water and water supply. 4.2 Due to encroachments in Sivan Koil Oorani and the channels in Muslim Middle Street, Muslim Odai Street, all the water bodies do not get water to its full level. During the year 1996, due to heavy rains, Siru Kulam tank had become full. The authorities had blocked the water course from Periya Kulam to Siru Kulam with sand bags which resulted in flooding of water in the main roads of Sivakasi. In para 7 of the writ petition, the petitioner has indicated regarding various encroachments with classification of land. 4.3 Even though efforts were made by the citizen groups regarding removal of encroachments and various representations were sent, the Government of Tamil Nadu issued G.O.Ms.No.2162 dated 8.12.1989 to regularise the encroachments in Siru Kulam tank. 4.4 Subsequently, taking such earlier G.O., as precedent, the Government issued G.O.Ms.No.867 dated 13.9.1995 regularising 138 encroachers in Siru Kulam tank. Such illegal regularisation was challenged by the petitioner's Association in W.P.No.16636/95 and the High Court had granted stay for issuance of patta in respect of 138 encroachers. After repeated representations, encroachments were removed on 5.2.2002 and the Commissioner of Sivakasi Municipality and the Revenue Divisional Officer by their letter dated 7.2.2002 and 12.2.2002 respectively had permitted the petitioner's Association to put up barbed wire fence on the Southern side of Siru Kulam tank so that the further encroachments could be prevented. It is asserted that the petitioner's Association had spent Rs.1,50,000/- for the aforesaid purpose. 4.5 Subsequently, during the year 2003, such Association had sent a petition to the State Government to initiate steps for ensuring the rain water to reach Siru Kulam and Periya Kulam tanks without any obstruction or hindrance. Such petition was considered by the "Petition Committee" of the Tamil Nadu Assembly and the Government had recommended removal of encroachment in the channels leading to Siru Kulam and Periya Kulam by the concerned Revenue officials as well as the Municipal Commissioner. The Municipality in its report had admitted that there were lot of encroachments in the channels leading to Siru Kulam and Odai's in Muslim Middle Street, Muslim Odai Street, Kathan Street and New Road Street, which were all encroachments in the Government poramboke odai lands and further such encroachments have been removed in a phased manner. Such reply letter dated 6.1.2004 has been referred to by the petitioner in the writ petition. 4.6 In view of the direction issued by the High Court to the local bodies to remove all illegal encrachments in the water courses, the Commissioner of Municipal Corporation has issued a special circular letter No.41869/2005/TP2 dated 15.7.2005, but Sivakasi Municipality based upon such circular, issued an urgent circular bearing No.8093/2005/F1 dated 21.7.2005 to the subordinates to identify the encroachments in the water bodies and to remove the same. It is alleged that instructions had remained only as instructions on paper without any concrete action. 4.7 Sivakasi Nagarmakkal Nala Pathugappu Sangam, consisting large number of encroachers in different colonies and roads, had filed W.P.(MD)No.2947 of 2005 in Madurai Bench with a prayer not to demolish, dispossess and evict the encroachers without issuing notice or following the due process of law. The High Court disposed of such matter stating that action can be taken only by following the Full Bench decision in WP.(MD)Nos.1964 and 2100 of 2005 dated 26.4.2005 (since reported in 2005(2) CTC 741 [Ramaraj V. The State of Tamil Nadu & others]). 4.8 It is also stated that O.S.No.90 of 2005 has been filed by some members of welfare sangam of Arignar Anna Colony, which is pending before the Civil Court. Even though the petitioner Association had requested the Collector to furnish information regarding the steps taken for eviction of the encroachers on water bodies and public places under the Right to Information Act, 2005, no information had been furnished. However, the Commissioner, Sivakasi Municipality had replied by letter dated 23.2.2006 that the Municipality was not the appropriate authority to remove the alleged encroachments and the concerned Department has to be contacted. 4.9 In March, 2005, in Rani Anna Colony, which is a Mayanam (cremation ground), encroachers have been evicted and when they attempted to again encroach, the petitioner's Association had submitted a representation dated 3.1.2007 and the Revenue Divisional Officer had sent a reply addressing the Commissioner to see that no new encroachments would come up, where old encroachers had been removed. However, according to the petitioners, no effective steps had been taken by the respondents. Meanwhile a resolution was passed by the Sivakasi Municipality on 28.3.2007 on the pressure exerted by the encroachers for converting the water spread and water tank areas as 'Natham' without taking into account the usage of the water spread area. 4.10 The petitioner also averred that in the meantime the Government has issued G.O.Ms.No.854 dated 30.12.2006 which enables the regularization of the encroachments even in water spread, water tank and irrigation sources. The petitioner, therefore, challenges such G.O. on the ground that the G.O. was contrary to the principle of law declared and laid down by the Supreme Court and the High Court. It is contended that all public water works, springs, public reservoirs, tanks, etc., vest with the Municipal Council under Section 125 of the District Municipalities Act and Section 84 of the Tamil Nadu Panchayat Act and, therefore, it is the duty of the Government to protect the same and the Government cannot divest the same by any administrative instruction. 5. In the connected W.P.No.16636 of 1995, which is pending since 1995, after making similar allegations regarding water bodies, it has been asserted that G.O.Ms.No.867 dated 13.9.1995 had been issued regularising the encroachments made by 138 persons mechanically and arbitrarily and without following any procedure contemplated. For the aforesaid reasons, prayer had been made in both the writ petitions, which have already been noticed. 6. In W.P.No.16636 of 1995, a counter affidavit had been filed by Respondent No.2, the District Collector. In such counter, it is indicated that Sivakasi Vilage in Kamarajar District was an old Ryotwari village and an extent of 16.55.0 Hectares in S.No.579 and was classified as "Siru Kulam tank poramboke". An extent of 7.07.0 hectares of land has been recognized as "wet" ayacut under the tank which is within the limits of Sivakasi Municipality. During the Municipal survey, the above tank poramboke had been surveyed as T.S.No.6 of Block 9 of Ward 'B' of Sivakasi Municipality. Such entire ayacut area under the tank has now been converted as built up area and no wet land under the ayacut is available for the purpose of cultivation. There are large number of encroachments on the tank bund and the entire wet ayacut area having been converted as buildings and streets, the water of the tank has not been utilised for agricultural purpose for the past many years. There are large number of encroachments on the tank bund for more than 20 years. 6.1 There are 138 encroachments on the poramboke land excluding two Vinayaga temples. In G.O.Ms.No.2162 (Rev) dated 8.12.1989, an extent of 3 cents of land was assigned to one person. After that eviction of the remaining encroachers was not possible, since it was felt that it would amount to law and order situation in Sivakasi town as such encroachments were in existence for more than 20 years. Such encroachers have already got electricity connection, telephone connections, etc.. Taking into consideration the fact of prolonged period of encroachment and also the fact that severe law and order problem may lead in case of eviction, the Government decided and ordered in G.O.Ms.No.867 dated 13.9.1995 for regularisation of the encroachments. 6.2 The allegation relating to acute water supply has been denied by stating that drinking water has been supplied to them by Sivakasi Muicipality from Vaipar River and regular drinking water supply is done from the water stored at Vembakottai Reservoir. It has been further asserted that due to inadequacy of rain and continuous failure of monsoon for the past 16 years (counter affidavit was signed in January, 1996), Siru Kulam tank has not received any surplus flow from Periya Kulam tank and Siru Kulam tank had received rain water from the dry lands situated on the northern side of the tank, but no water was received during the last few years due to failure of monsoon. The encroachments had been made only on the eastern and southern bunds and not on the inner part of the water course area and the allegation that the water cannot come to Siru Kulam tank and it is not filling to its full level due to the encroachments have been denied. 6.3 The eviction of encroachments could not be made due to law and order situation and G.O.Ms.No.867 dated 13.9.1995 was issued taking into account the prolonged period of encroachments. Other details are furnished relating to supply of water, which would not be required for the purpose of deciding the present case. 7. In W.P.No.22274 of 2007, a counter has been filed on behalf of Respondents 1 to 4, wherein it is indicated that the Government has been granting house site to the poor people and to regularize the house site encroachments made by the poor downtrodden people, the Government evolved a scheme and issued G.O.Ms.No.75 dated 5.2.2000, whereunder the Government constituted a Committee for giving recommendation and on recommendation of such Committee, the Government has ordered "One Time Scheme" in G.O.Ms.No.168, Revenue Department dated 27.3.2000 for regularization of house sites encroachments of more than 10 years in Government poramboke lands which were not used for the purpose of their classification and were not required for any other Government purpose. 7.1 It is further indicated in paragraph 5 as follows :- "5. It is submitted that based on the orders passed by this Hon'ble Court in W.P.20186/05, dated 27.6.2005 and the Madurai Bench of this Hon'ble Court in W.P.689/2005, dated 2.2.2005, the Government ordered the revival of the scheme in G.O.Ms.No.854, Revenue dated 30.12.2006. As per the Government Order, the Collectors have to take into consideration the following, while regularizing the encroachment for granting patta. 1) Judgment of this Hon'ble Court in W.P.No.20186/05, dated 27.6.2005 and by the Madurai Bench of this Hon'ble Court in W.P.689/2005, dated 2.2.2005 should be taken into account. 2) Resolution of the local bodies such as, Panchayats and Municipal Council, and the consent of the District Senior Officer of the poramboke lands concerned should be obtained. 3) The District Level Committee headed by the Collector should ensure that the poramboke lands sought to be converted as 'Natham' especially Water course poramboke are not at all required for public and government purpose in future." 7.2 It has been further stated that after obtaining Municipal Council's resolution passed on 31.1.2004 and 30.3.2007 and after field inspection and enquiry, a proposal was formulated by the Tahsildar for regularization of encroachments of dwelling houses for more than 10 years in T.S.No.33, Block 8, Ward A of Sivakasi Town measuring an extent of 23,000 sq.Mtrs. or 5.68 acres classified as Mayanam and Odai. There were 353 encroachments out of which 341 encroachments by way of houses can be regularised under this scheme and a proposal was forwarded to the Revenue Divisional Officer on 12.4.2007. The Revenue Divisional Officer recommended for the grant of assignment to the 341 beneficiaries as per letter dated 14.4.2007. Though the site was classified as Mayanam and Odai in the Municipal Town Survey Land Records, it was not used as such for the past 30 years and in such site a well planned colony called Arignar Anna Colony with civic amenities have been developed. 7.3 A District Level Committee headed by the District Collector inspected the site and the District Level Committee decided to change the classification of the land in T.S.No.33 Block 8, Ward 'A' of Sivakasi Town as Mayanam and Oidai into 'Natham'. The District Collector passed orders on 14.4.2007 for change of classification and directed the grant of house site in respect of 341 encroachers excluding 10 number of encroachments which was actually located in Odai. Such Odai has been used as road and a wide drainage channel has been formed along with Kamarajar Road. Notice directing them to remit the cost of land at Rs.3000/- per sq.ft., as per the guideline register had been sent to them on 30.6.2007. Out of 341 encroachers, 58 persons alone remitted the land cost and pattas were granted to such 58 persons on 16.6.2007 and 30.6.2007. The request of other encroachers in respect of water course and poramboke land in Sivakasi Town as per the details given was not considered for regularization. 7.4 The fact that there has been no surplus flow of water from the tank for the past 20 years due to inadequate rain and failure of monsoon has also been highlighted and it has been stated that Siru Kulam tank receives only rain water from the surrounding dry lands and such tank is not an irrigation tank and it has no ayacut area and the surrounding area has already been developed as built up portion. The channel that starts from Railway Feeder Road to Odai Street never got water supply from Siru Kulam and it serves as sewage channel for the nearby residents. It has been stated that though there was large number of encroachments in the area, such encroachments have not been considered for regularization under this G.O., except T.S.No.33 in Block 8, since those encroachments are blocking the supply channel which would lead to submergence of the nearby areas. T.S.No.33 in Block 8 is predominantly Mayanam Poramboke and partly Odai and is not at all used as Mayanam as it was in the midst of the thickly populated town area and the Municipality has a separate Mayanam. Various contentions raised regarding the invalidity of the G.O., on the ground that the G.O. is contrary to the various directions contained in the judgments of the Supreme Court and the High Court have been refuted. 8. The Sivakasi Municipality through its Commissioner has filed a separate counter affidavit. In such counter affidavit, it has been stated that Sl.No.1 Jailsingh Nagar, Thattayurani, Ward F, Block 2 is classified as Government poramboke oorani land. Puthu Street, Thangaiya Road, Ward D, Block 7, T.S.No.98 and Puthu Road Street, Ammankoil patti Street, Ward D, Block 7, T.S.No.121 are classified as Government poramboke waterbody (odai). It is further stated that Ward E, Block 9 to 11, T.S.No.108/1 does not appear to be available in the Town Survey records. Arignar Anna Colony, Ward A, Block 8, T.S.No.33 is classified as Government poramboke Mayanam, Odai. Anna Nagar, Ward B, Block 4, T.S.No.5 is classified as Sivakasi Nagaratchi Pillaimar Community cremation ground. Such land has been acquired by the Railways, which in turn gave Ward B, Block 4, T.S.No.5 an extent of 1.77 acres to be utilised as a cremation ground. The Municipality had passed Resolution No.588 dated 21.11.1984 giving assignment of the lands in S.No.3 to the encroachers residing therein. Sivankoil Garden, Ward A, Block 9, T.S.No.14 is classified as well and it is under the control of the revenue authorities. Siru Kulam Kanmai, Ward B, Block 9, T .S.No.6/1 is used within the maintenance of the Public Works Department and it is classified as Government water body poramboke. 8.1 It was further stated that the Collector, Virudhunagar District convened a meeting on 24.1.2002 and as per the guidelines all encroachments on the southern side of the tank was removed on 4.2.2002 and 5.2.2002 by the revenue authorities and the police authorities being assisted by the Municipality and the petitioners were permitted to raise a barbed wire fencing to prevent future encroachments. Pursuant to the meeting dated 28.5.2002 for removal of encroachments from the canals that supply water to Sivakasi from Periya Kulam, encroachment removal drive was conducted on 1.6.2002. The Municipal Council had passed a resolution on 22.3.2002 to cancel all the assignment of the lands given by the Collector and the State Government in the last 25 years over tank porambokes abetting drainage and water waste. On 28.3.2007, resolution No.2126 has been passed observing that regularization should be permitted only after taking into account the lands to be allotted for waterway transport and roads. 9. The following questions arise for determination :- (1) Whether the G.O.Ms.No.867 dated 13.9.1995 and the subsequent G.O.Ms.No.854, Revenue Department dated 30.12.2006 issued by the State Government are illegal, inoperative and liable to be quashed ? (2) Whether a direction should be issued to the State Government to remove the encroachers ? 10. In (2001) 6 SCC 496 (HINCH LAL TIWARI v. KAMAKLA DEVI), it was observed :- "13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are natures bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non- abadi sites. 14. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the best interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its