IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09 .09.2008 C O R A M: THE HONOURABLE MR.A.K.GANGULY, CHIEF JUSTICE and THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA W.P.No.26314 of 2007 and M.P.Nos.1 & 2 of 2008 1. K.Balamurugan 2. P.Kalyani 3. M.Kanthasamy 4. P.V.Ramesh 5. M.Nagarajan 6. P.A.Lucia 7. A.K.Arumugam 8. V.Antony Cruz .. Petitioners -Vs- 1. The State of Tamil Nadu, Represented by the Secretary, Environment and Forest Department, Secretariat, Fort St. George, Chennai-600 009. 2. The Secretary, Education Department, Fort St. George, Chennai – 600 009. 3. The Secretary, Public Works Department, Fort St. George, Chennai – 600 009. 4. The District Collector, Villupuram District, Collectorate, Villupuram. 5. The District Revenue Officer, Villupuram District, Villupuram. https://hcservices.ecourts.gov.in/hcservices/ 6. The Director of Medical Education, DMS Compound, Chennai – 10. 7. The Tamil Nadu Pollution Control Board, Guindy, Chennai. .. Respondents Writ petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus directing the respondents not to commit any act or omission which will interfere with landscape of Mundiyambakkam lake in Survey No.144-1 at Mundiyambakkam village, Villupuram District being an extent of 16.45 hectares and consequently protect and preserve the said lake from any development and construction activities whatsoever and be maintained as a water body by restoring status quo ante prior to G.O.Ms.No.161, dated 30.08.2006. For Petitioners : Ms.D.Geetha For Respondents 1 to 6 : Mr.G.Masilamani, Advocate General, assisted by Mr.Raja Kalifulla Government Pleader. For Respondent 7 : Mr.R.Ramanlal Standing Counsel for TNPCB - - - - O R D E R F.M.IBRAHIM KALIFULLA, J. This is a public interest litigation and the petitioners seek for the issuance of a writ of Mandamus to direct the respondents not to commit any act or omission which will interfere with the landscape of Mundiyambakkam lake in Survey No.144-1 at Mundiyambakkam village, Villupuram District spread over an extent of 16.45 hectares and consequentially protect and preserve the said lake from any development or construction activities whatsoever and thereby maintain the water body by restoring status quo ante prior to G.O.Ms.No.161, Health and Family Welfare (MCA1) Department, dated 30.08.2006. 2. The State Government issued G.O.Ms.No.161, Health and Family Welfare (MCA1) Department, dated 30.08.2006, stating that a new Medical College is to be established at Villupuram District with an intake of 100 students from the academic year 2007-2008. It is stated that the said G.O. came to be issued in furtherance of an announcement made on 22.06.2006, in the State Legislative Assembly that the Government of Tamil Nadu had planned to start a Medical College in Villupuram District. https://hcservices.ecourts.gov.in/hcservices/ 3. At the very outset the petitioners in paragraph 5 of their affidavit filed in support of the writ petition have made an averment in no uncertain terms that they welcome the decision to start a Medical College in Villupuram District. In the same breath they have stated that for establishing the Medical College the Hon’ble Health Minister and the Hon'ble Education Minister of the State inspected four lakes in and around Villupuram District viz., Virattikuppam lake, Mundiampakkam lake, Vikkiravaandi lake and Muthaampalayam lake and that when certain objections were raised to the attempt of the State Government in locating the Medical College, in any one of the water bodies, the Hon’ble Minister for Education issued a statement on 10.01.2007, that no agricultural land will be selected for the construction of the Medical College. It is however alleged that subsequently it was reported in the newspapers published on 07.02.2007, that in a meeting on the development activities of Villupuram Town, the Minister for Education announced that 25 acres of land which is needed for construction of the Medical College has been selected in the Mundiyambakkam lake. 4. It is stated that there were objections for construction of Medical College in a water body by the local Member of Parliament and that there were also demonstration by others. It is also stated that subsequently representations were also made to the Chief Minister's Special Cell but still foundation stone laying ceremony was held on 19.05.2007, for the construction of the Medical College building in the Mundiyambakkam lake by the Hon'ble Minister for Local Administration which was also attended by the Hon'ble Minister for Education as well as Hon'ble Minister for Health and Family Welfare. It is stated that for holding the function in the lake, the area was leveled and filled with debris. 5. As far as the Mundiyambakkam lake is concerned, it is stated that it is spread over an area of 42 acres adjacent to the Villupuram Town and that vast extent of lands were being irrigated through the said water body, that on an earlier occasion another lake viz., Villupuram Poonthottam lake was taken over by the Government for construction of Villupuram Bus Stand and other Government Offices in an extent of 48.39 acres and there by the water body which was catering to the water needs of the people in Villupuram had been erased. It is further contended that a similar step is now being taken for construction of a Medical College in the Mundiyambakkam lake as against public interest and the decision has been taken without making any environment impact assessment by the concerned Department. It is also stated that the construction of a Medical College would deplete the water storage level in and around the area and thereby the ground water table which is already below 200 ft. would deplete further. https://hcservices.ecourts.gov.in/hcservices/ 6. It is further contended that the present step of establishing a Medical College in the Mundiyambakkam lake is contrary to the circular of the State Government dated 26.11.2004, not to interfere with the water bodies in Poramboke lands by any one including the State Government Departments. The further submission of the petitioners is that alternate availability of vast extent of Poramboke lands alongside the stretch of National Highway from Villupuram towards Chennai was also not considered by the respondents. It is also contended that if the construction of a Medical College is permitted in the Mundiyambakkam lake, it would seriously prejudice the farmers who are solely dependent on the storage level of water to replenish the ground water table during rainy seasons and thereafter. 7. It is also alleged that the impugned order is in violation of S.O.1533 dated 14.09.2002, issued under Rule 3 of the Environment (Protection) Rules, 1986 of the the Environment and Forest Department of the Union Government. It is further contended that the action of the respondents is in violation of Articles 14, 19 and 21 as well as 48(A) and 51(A) of the Constitution of India. It is further alleged that the action of the State is in conflict with the principles of public trust, in as much as, the State being the trustee of the natural resources and public property is expected to maintain the same. It is then contended that the construction of the Medical College in the lake would also cause serious pollution which would be in violation of the statutory provisions as well as the declaration found in the declarations made in the United Nations Conference of the Human Environment held in Stockholm in 1972 (Stockholm Convention) to which India was a party. It is based on the above said allegations, the petitioners have come forward with the above referred to prayer in the writ petition. 8. The writ petition was entertained on 07.08.2007, the respondents were put on notice and a detailed counter affidavit has been filed on behalf of the 4th respondent District Collector, Villupuram which has been adopted by the respondents 1, 2 and 5. A separate counter affidavit has been filed by the 6th respondent viz., the Director of Medical Education. 9. The fourth respondent District Collector, in his counter has sated that the petitioners are all living far away from Villupuram and that they are not holding any lands in and around the lake and therefore they have no locus standi to file the writ petition. It is stated that the State Government took a policy decision in the year 2006-2007 to establish Medical Colleges in all the Districts where there is no Government Medical College and that the 6th respondent sent a proposal for starting a Medical College at Villupuram. It is in pursuance of the said proposal, the Government passed Orders in G.O.Ms.No.161, Health Department, Dated 30.08.2006, for establishment of a Medical College at Villupuram and that necessary funds have also been sanctioned for construction of the building and for purchase of the equipments etc., https://hcservices.ecourts.gov.in/hcservices/ The Government is stated to have issued a letter dated 03.08.2006, requesting the authorities to locate 25 acres of suitable land preferably nearer to the National Highways with adequate transport facilities for the public to have easy access to the proposed Medical College. It is stated that the Secretary to Government (Health and Family Welfare Department) and other officials inspected various lands along with the District Administration and that they were not in a position to locate any unobjectionable Government Poramboke lands suitable for locating the Medical College. It is stated that the Mundiampakkam lake which is barren and an unutilized site which has not received any water for the past 15 years, was found suitable since the Ayacutdars were also cultivating their lands through bore wells and open wells. It is stated that the land was more suitable as it was adjacent to the National Highway and in close proximity to Villupuram from and the surrounding villages. It is further stated that since the lake has not received any water for more than 15 years, nearly 34.52 hectors of ayacut land has ceased to be ayacut land and some portion of the tank land has been encroached and misused by some people. 10. It is stated that on being approached, the Mundiambakkam Panchayat passed a resolution on 05.12.2006, and by which it has offered to part with the land for the provision of the Medical College. A notice in Form ‘A1’ was stated to have been issued by the Firka Revenue Inspector inviting objections from the public as well as the Ayacuttadars in the Mundiambakkam village on 27.12.2006. After giving a reasonable period of more than 15 days, the Firka Revenue Inspector is stated to have made an inspection of the proposed site as well as the surrounding places and held a detailed enquiry. It is stated that to the said notice, no objections were received from either the public or from the Ayacuttadars as well as any other interested person. In the enquiry, leading Ryots, Village Panchayatars, President of Mundiambakkam Panchayat, Ayacuttadars, Village Administration Officer and the Village Assistant of Mundiambakkam Panchayat stated to have represented that the Mundiambakkam eri did not receive water for more than 15 years and that the ayacut lands are being cultivated through bore well and open well only. They also stated to have consented for the transfer of the land and none of them raised any objections for the proposed transfer of the lands for the Medical College. Thereafter, the extract from the ‘A’ Register, F.M.B., and other village accounts were stated to have been appended by the Revenue Inspector along with the proposal recommending the transfer. While making the proposal, the Revenue Inspector also fixed the market value of the land based on the sale statistics gathered from the office of the Sub Registrar concerned. 11. After receipt of the said report and Sub Division Records, the Villupuram Tahsildar is stated to have made a further inspection of the site and after scrutinizing the proposals along with the fixation of market value and finding the same to be in order, the Tahsildar submitted his proposal to the Revenue Divisional Officer, Villupuram recommending https://hcservices.ecourts.gov.in/hcservices/ for the land transfer on 25.01.2007. Simultaneously, the Union Engineer, Vikkiravandi Panchayat Union is also stated to have offered his technical opinion for the construction of the Medical College in the lands proposed for transfer. He also stated to have opined that the area did not receive any water for more than 15 years and that the land is suitable for the construction of the Medical College. According to him, while the Orathur Tank was the only source of water for the Mundiambakkam lake, as there was no surplus water in the Orathur Tank there was no water flow for Mundiambakkam lake. Therefore, the Union Engineer is also stated to have expressed his no objection for the use of the land for other public purposes. Thereafter, the Revenue Divisional Officer as well as the District Collector sent their recommendations for the transfer of the land on 26.01.2007. On 28.01.2007, the District Collector, Villupuram after verification of the records approved the proposal and forwarded the same to the Government through the Special Commissioner and Commissioner for Land Administration on 29.01.2007. Simultaneously the Chief Engineer, (Water Resources Organisation) after collecting necessary report from the Executive Engineer sent his recommendations for transfer on 06.04.2007. It is also stated in the counter affidavit that in the Agriculturists Conference and grievances hearing day Meeting held by the District Collector at the District level on various dates the farmers association representing agriculturists, welcomed the establishment of Medical College at Villupuram and there was also no objection from the public. 12. It is in the above stated background G.O.Ms.No.258, Revenue Department, dated 18.08.2007, was stated to have been passed by the Government permitting the Health and Family Welfare Department to enter upon the proposed site. Subsequently in G.O.Ms.No.602, dated 19.10.2007, the Government ordered for reclassification of the lands as Health and Family Welfare Department, Government Medical College, Villupuram and closely followed by that also made changes in the village and taluk accounts with effect from 29.10.2007. 13. In paragraph 18 of the counter affidavit various other factors which weighed with the District Administration for selecting the land for establishment of the Medical College have been set out. It is stated that the proximity of the location to the town and villages in and around Villupuram will enable the public to have easy access to the hospital. The other reason stated are availability of transport facilities, water, electricity, non-availability of other unobjectionable Government Poramboke or patta land, cultivation of ayacut lands by bore wells and open wells, the fact of non-supply of water to the lake for more than 15 years, the nearness of the National Highway to the site where frequent road accidents occur and the plight of the accident victims from getting immediate treatment and above all the site satisfy the prescribed norms of the Medical Council of India. It is further stated that the proposed Medical College and attached Hospital is planned to have 300 beds well https://hcservices.ecourts.gov.in/hcservices/ equipped surgical hospital with Post Graduate Doctors in all specialties, apart from large out patient department with free treatment for the poor. It is further stated that the establishment of the college and the hospital in the proposed site would be far more beneficial to the public at large than allowing the land to remain barren without any scope of water source to the lake and thereby providing scope for encroachments and remain as a waste land. Apart from attempting to justify in locating the Mundiambakkam lake, the counter also states that the proposed construction will be provided with the required rain water harvesting system to augment the ground water recharge, that the existing earthen channel would also be strengthened and fully protected in order to ensure free flow of water from Orathur lake to the Panayapuram eri, and that it will also enable the authorities to protect the land from encroachers. 14. As far as the concern expressed about the ground water recharge, it is stated that adequate rain water harvesting structures would be provided as that would enable the other nearby tanks viz., Panayapuram tank, Vadakurichipalayam tank, Ayyuragaram tank, Orathur tank, Sathanur tank, Otteri and Vikravandi Periya tank which were also located within a radius of 5 to 6 km which would also get recharged and thereby the sugarcane cultivation in the Villupuram District will also be sufficiently safeguarded. 15. In the counter affidavit an undertaking has been given to the effect that in the course of construction of the Medical College, it will be ensured that the construction materials and other wastes will not be permitted to be heaped in the vaikkal viz., the channel through which the water would pass to Panayapuram lake and that no sewage water from the hospital will be permitted to pollute the water source to Panayapuram lake as well as ground water source. 16. It is stated that the 7th respondent viz., the Tamil Nadu Pollution Control Board also convened a meeting on 12.06.2008, at the instance of the 6th respondent, the Director of Medical Education and discussed in detail as regards the safeguards to be made from any pollution being caused due to the construction of the Medical College and Hospital. It is further stated that even in G.O.Ms.No.213, Environment and Forests (EC-1) Department dated 30.03.1989, where the highly polluting industries have been listed out, the construction of a Medical College cum Hospital is not included. It is also stated that so for the Villupuram District has not suffered any water shortage since the location of the town and villages in and around Villupuram are surrounded by natural water sources such as Orathur lake on the western side and Panayapuram lake on the eastern side. 17. In paragraph 40 of the counter affidavit it is highlighted that conscious of the State responsibility in maintaining the ecological balance and environment protection vis-à-vis sustained development activities for the improvement of socio economic development of the https://hcservices.ecourts.gov.in/hcservices/ people, a balanced approach was made and the decision to locate the Medical College in the proposed site was consciously taken in the larger interest of the public and therefore such a step proposed by the State should not be interfered with for all or any of the reasons urged by the respondents. 18. After this writ petition was entertained, on behalf of the petitioners photographs were produced to show that Mundiyambakkam lake continue to have water storage from the Orathur lake. On behalf of the respondents also several photographs were produced to show that no such water storage was available in that lake. In order to ascertain the correct factual position, we passed an order dated 04.08.2008, appointing a Committee consisting of the learned counsel for the petitioners as well as the Special Government Pleader along with the respective juniors as well as the standing counsel for the Tamil Nadu Pollution Control Board with the assistance of the District Environmental Engineer to meet in the office of the District Collector, Villupuram on 09.08.2008 at 11 a.m. and visit the spot on the same day. The District Collector was also directed to arrange for a photographer, to take photographs of the spot at the time of inspection and prepare a report based on the inspection and submit the photographs also along with a report. Such report was directed to be submitted by 12.08.2008. While passing the said order, we also recorded the assurance given by the learned Advocate General that the construction of the Medical College will not in any way affect the existing water channel connecting the Orathur eri with other lakes. 19. In pursuance of our order dated, 04.08.2008, an inspection was stated to have been made in the presence of the respective counsel and other officials on 09.08.2008. A report by the District Collector dated 12.08.2008, along with the photographs taken during the visit was also filed. In the report it is stated that the Committee commenced its inspection by 11.30 a.m. which went on till 2.00 p.m. and that the photographs were taken to ascertain the present physical features of the lake in question. 20. We also perused the set of photographs stated to have been taken on 09.08.2008. As many as 46 photographs have been filed and the boundary points of the entire site situated in Survey No.144/1 have been indicated in the photographs. A perusal of the photographs disclose that in no part of the land even a drop of water can be seen. Some of the photographs show certain standing sugarcane crops and certain other crops. But there is no indication of any water storage in any part of the land. In the photographs found at pages 18 and 19, the presence of the sluice is visible but even in and around the sluice there were enormous growth of bushes which only shows that the same was not operational for quite sometime. https://hcservices.ecourts.gov.in/hcservices/ 21. A perusal of the objections filed on behalf of the petitioners to the Field Inspection Report dated 12.08.2008, does not disclose any formidable objection to the Report of the District Collector or to the photographs annexed with the Report. In the objections, the main stand of the petitioners is that the administration failed to maintain the lake, as well as, the channel which was the source of water supply to the lake from Orathur lake and therefore direction should be issued to restore the channel and protect the water body. It is also stated in the objections that though the presence of thorny buses are found in the proposed site, the non-storage of water was prevalent only for the past four years and not 15 years as stated by the respondents. 22. In the above stated background, we heard the learned counsel for the petitioners and the learned Advocate General for the respondents. 23. Ms. Geetha, learned counsel appearing for the petitioners in her submissions contended that the State failed to apply the precautionary principles for protecting the water body in its attempt to convert the same for a different purpose. According to her the State failed to explore the availability of alternative sites other than water bodies in its survey for locating the site to put up the Medical College and Hospital. The learned counsel contended that even the inspection held by the Hon'ble Minister at the initial stage was only on water bodies in and around Villupuram and there was no indication of any other lands of the Government or other lands with particular reference to identifiable Survey Numbers stated to have been inspected either by the officials or the ministers before finalising the present site of Mundiyambakkam lake. The learned counsel further contended that there was total non-application of mind on that score. 24. By referring to the Report of the Chief Engineer, PWD and certain other documents, the learned counsel contended that the statistics furnished therein discloses the depletion in the ground water storage by categorising the same under the heading "over exploited lake". The learned counsel contended that reclassification of Mundiambakkam lake as any other land would only add to such depletion in the ground water storage level, which will not be in the interest of public at large. The learned counsel however fairly stated that the petitioners are not against the establishment of Medical College in the Villupuram District but they are keen to ensure that on that score a water body should not be encroached by the State itself. The learned counsel relied upon AIR 2001 SC 3215, 2006 (3) SCC 549 and 1996 (5) SCC 647 in support of her submissions. 25. As against the above submissions Mr.G.Masilamani, learned Advocate General appearing for the respondents submitted that Orathur lake is the main water body from which the surplus water is released and which is the source for Mundiambakkam lake and Panayapuram lake which are https://hcservices.ecourts.gov.in/hcservices/ located within the vicinity of 5 kilometers and 6 ½ kilometers respectively from the Orathur lake. According to him, having regard to the fact that the State as part of its present proposal to locate the Medical College has decided to strengthen the channel and thereby maintain the source of supply of surplus water from Orathur lake to Panayapuram lake to be continued without any description, public interest will not in any way be jeopardized. According