J /

MRS. SUSETHA A v.

STATE OF TAMIL NADU AND ORS.

AUGUST 8, 2006

[S.B. SINHA AND DALVEER BHANDARI, JJ.] B

Environmental Law:

Environment-Expansion of Highway project-Resettlement of persons C who were displaced-Construction of shopping complex in a water tank- Protection of environment-Panchayat decided to construct a shopping complex to resettle those persons who were displaced due to expansion of a Highway project-The State Government also issued a Government Order permitting construction of a shopping complex therein-The village was situated near the sea having five water tanks in or around therein-There was no report of any D water shortage in the village-The tank land was mainly being used as a dumping yard for a long time-The High Court dismissed the writ petition challenging the aforesaid decision-Correctness of-Held: The water bodies are required to be retained-Natural water storage resources are not only required to be protected but also steps are required to be taken for restoring E the same if it has fallen in disuse-However, the same principle cannot be applied in relation to artificial tanks-The tank in question is not a natural tank-Only rain water could be collected in it-It has been a dumping ground for a long time-Moreover, there is no shortage of water in the area-Hence, there is no justification for its resurrection-High Court's judgment upheld

The respondent-Panchayat took a decision of constructing a shopping complex in a water tank lying in disuse and abandoned for the purpose of resettlement of those persons who were displaced due to expansion of

a highway project. The State Government also issued a Government Order permitting construction of a shopping complex therein. The village was G situated near the sea having five water tanks in or around therein. There was no report of any water shortage in the village. The tank land was mainly being used as a dumping yard for a long time.

A writ petition was filed by the appellant before the High Court questioning the aforesaid decision, which was dismissed. Hence the appeal. H 361

A Dismissing the appeal, the Court

HELD: I. The tank in question was admittedly a temple tank. It was not a lake. Although it was classified in the revenue records as a tank poramboke, but it had lost its utility a long time back. It was being used as a dumping yard. There were no inlet or outlet facilities. It was also B prone to encroachments. 1365-BI

2. Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of C India, but also in view of the fact that the same has been recognized in Articles 47 and 48-A of the Constitution of India. Article SI-A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life. 1366-FJ

D Animal and Environment legal Defence Fund v. Union of India, AIR

(1997) SC 1071, MC. Mehta (Badkhal and Surajkund lakes Matter) v. Union of India, [1997J 3 SCC 715 and Intellectuals Forum, Tirupathi v. State of

A.P .. [20061 3 SCC 549, relied on.

3.1. Maintenance of wetlands acts as a benefactor to the society.

People united for better living in Calcutta - Public v. State of West Bengal, AIR (1993) Cal. 215, approved.

3.2. Natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if F it has fallen in disuse. The same principle cannot be applied in relation to artificial tanks. 1367-BI

T.N. Godavarman Thirumulpad (99) v. Union of India, (20061 S SCC 47 and l. Krishnan v. State of Tamil Nadu, AIR (2005) Mad. 311, referred G to.

4. This Court has not laid down a law that alienation of the property held as a public trust is necessarily prohibited. What was emphasized was a higher degree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogan, it is required to be H implemented taking a pragmatic view and not on ipse dixit of the Court. [367-G-Hl ....

SUSETHA v. STA TE OF TAMIL NADU [SINHA, J.] 363

T.N. Godavarman Thirumulpad (99) v. Union of India, (2006) 5 SCC A 47, Intellectuals Forum, Tirupathi v. State of A.P., (2006) 3 SCC 549 and Bombay Dyeing & Mfg. Co. ltd. (3) v. Bombay Environmental Action Group,

(2006) 3 sec 434, referred to.

s: The respondents categorically denied and disputed that there is any water shortage in the village. The village is situated on both sides of B the National Highway. It is situated near the sea and having five water tanks in or around therein. It is, therefore, difficult to accept that there had been acute water shortage in the village. The tank in question is not a natural tank. Only rain water could be colkcted in it. It has been a dumping ground for a long time. Although there is no material on record C to show as to since when it has fallen in disuse, indisputably the tank in question is in a dilapidated condition for a long time and has been used as a dumping yard and sewage collection pond. Thus it is not a case where resurrection should be directed. (368-F-GJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3418 of2006. D

From the Judgment and Order dated 18.1.2006 of the High Court of Judicature at Madras in W.P. No. 35942/2006.

Indu Malhotra and Arjun Suresh for the Appellant.

Harish N. Salve, L. Nageswara Rao, V.G. Pragasam and Senthil Jagadeesan for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J: Leave granted.

The Appellant herein claims herself to be a member of the Okkiam Thoraipakkam Panchayat Union. There exists a temple tank in the said village.

The village is located on both sides of the main road connecting Chennai City with Mahabalipuram on the Old Mahabalipuram Road. The said tank admittedly was lying in disuse. It was in fact an abandoned one. The Panchayat took a decision of constructing a shopping complex for the purpose of user thereof for resettlement of those persons who were displaced due to expansion of a highway project. The State of Tamil Nadu also issued a Government Order permitting constructions of a shopping complex therein. A writ petition

was filed by the Appellant before the High Court of Madras, questioning the H

A said decision. By an order dated 06.12.2005, the High Court, having regard to the stand taken by the Respondent herein in their counter affidavit, appointed the Director, Centre for Water Resources, Guindy, Chennai, as the Commissioner to inspect the tank land and submit a report in regard to the condition thereof. Pursuant to or in furtherance of the said direction, an B inspection was carried out at the instance of the Director. A report by the Centre of Water Resources, College of Engineering Guindy, Anna University, Chennai also was filed before the High Court.

Relying on or on the basis of the said report, a Division Bench of the Madras High Court by reason of the impugned order dismissed the writ C petition filed by the Appellant herein.

The Appellant is, thus, before us.

Ms. lndu Malhotra, the learned counsel appearing on behalf of the Appellant, submitted that keeping :n view the water shortage faced by the D public in general, the High Court committed a manifest error in permitting construction of a shopping complex on a water body.

Drawing our attention to a decision of the Division Bench of the Madras High Court in L. Krishnan v. State of Tamil Nadu, AIR (2005) Madras 311, it was argued that the State Government was enjoined with a duty to preserve .

E the tank by taking all possible steps both by way of preventive measures as well as removal of unlawful encroachments and not to use the samt: for commerical purpose.

Drawing our attention to a report of the Director, the learned counsel F urged that the conclusions arrived at therein were not correct as a it was noticed that during rainy season, the tank did not remain dry. Resurrection of the tank, according to the learned counsel, being possible, the High Court should have exercised its extra-ordinary jurisdiction in directing so.

Mr. Harish N. Salve, the learned Senior Counsel, appearing on behalf G of the Respondent-State of Tamil Nadu, on the other hand, supported the impugned judgment contending that the tank in question being an artificial tank and not a natural water resources, all considerations relevant for passing an appropriate order having been taken note of by the High Court, this Court should not exercise its discretionary jurisdiction.

H Mr. L. Nageswara Rao, the learned Senior Counsel appearing on behalf

of the Gram Panchayat, urged that the Appellant herein is not a member of A the Gram Panchayat. It was further submitted that there had been no shortage of water in or around the tank.

The tank in question was admittedly a temple tank. It was not a lake.

Although it was classified in the revenue records as a tank poramboke, but it had lost its utility a long time back. It was being used as a dumping yard. B There was no inlet or outlet facilities. It was also prone to encroachments.

In its report the Centre for Water Resources, upon inspection of the tank, drew the following conclusions:

"(i) The catchment area available is 26, 781 m2• The present capacity C of the tank is I, 86lm3. The annual runoff potential is 8,043 m3•

(ii) There is no specific inlet or surplus channels for the temple tank.

(iii) The water from the tank is not directly being used by the public/ cattle or for any other purpose.

(iv) The water contained in the tank is unfit for human consumption.

(v) The tank area has not been maintained properly over the years and has been used as a dumping yard.

(vi) When such water bodies are not maintained property, they are likely to be encroached.

(vii) From the interaction with the Public, the team learnt that but for the recent heavy rains, the tank would have remained dry.

(viii)The tank area .has no access from three sides name!; South,

North and Eastern sides and could be accessed only from the Old F Mahabalipuram road side.

(ix) The tank does not contain any built up structures like steps to enter, etc. but contains building debris dumped into it.

(x) The area is surrounded by three other bigger sized tanks, two in ·

the East and one in the west, which will be recharging the ground G water in that area and the recharge contribution of this temple tank will be insignificant.

(xi) The Temple tank is in a dilapidated condition."

The tank is situated in Survey No. 2 I 'h. It is abutting a highway. H

A Within a kilometer from the said tank, there are five other tanks, relevant details whereof are as under:

Extent

SI. No.

Name of the Tank No.

Survey No Hee.Acre Acre Cent

B I.

Kannankkan Kulam 41/7 0.32.5 0.80

Kuttai 10112 0.52.5 1.30

Aya Kulam 207 1.03.5 2.55

Puthu Kulam 209/9 0.31.0 0.77 c 5.

Periya Chandran Kulam

263/2A 0.70.0 1.73

Total 2.89.5 7.15

It is aiso not ind dispute that the shops and other dwelling units abutting the said highway were subject matter of acquisition proceedings and the D effected families were to be provided alternate sites, shop or dwelling units under the rehabilitation and settlement scheme. The State in its counter affidavit stated that having regard to the condition of the said tank, levelling of the land was taken up and completed on 15.02.2006 and, thus, it is contended that it is in public interest that the proposed shopping complex are allowed E to be constructed.

Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in F Articles 4 7 and 48-A of the Constitution of India. Article 51-A of the

Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life. (See Animal and Environment legal Defence Fund v. Union of India and Ors., AIR (1997) SC 1071; M.C. Mehta (Badkhal and Surajkund G lakes Matter V. Union of India and Ors., (1997) 3 sec 715 and Intellectuals Forum, Tirupathi v. State of A.P. and Ors., (2006) 3 SCC 549.

Maintenance of wetlands was highlighted by the Calcutta High Court in People united for better living in Calcutta - Public and Anr. v. State of West Bengal and Ors .. AIR (1993) Cal. 215, observing that the wetland acts H as a benefactor to the society.

Recently, in T.N. Godavaraman Thirumulpad (99) v. Union of India A and Ors., (2006] 5 SCC 47, this Court again highlighted the importance of preservation of natural lakes and in particular those which are protected under the Wild Life (Protection) Act, 1972.

We may, however, notice that whereas natural water storage resources are not only required to be protected but also steps are required to be taken B for restoring the same if it has fallen in disuse. The same principle, in our opinion, cannot be applied in relation to artificial tanks.

In L. Krishnan (supra), the Division Bench of the Madras High Court had been dealing with natural resources providing for water storage facility C and in that view of the matter the State was directed to tc.ke all possible steps both preventive as also removal of unlawful encroachments so as to maintain the ecological balance.

The matter has also been considered at some details by this Court in Intellectuals Forum, Tirupathi (supra), wherein again while dealing with D natural resources, it was opined:

"This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust, Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds E a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources .... "

[Emphasis supplied]

This Courts have not, in the aforesaid decisions, laid down a law that G alienation of the property held as a public trust is necessarily prohibited.

What was emphasized was a higher degree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogal), it is required to be implemented taking a pragmatic view and not on ipse dixit of the court.

A In Bombay Dyeing & Mfg. Co. Ltd (3) v. Bombay Environmental Action

Group and Ors., [2006] 3 SCC 434, referring to a large number of decisions, it was stated that whereas need to protect the environment is a priority, it is also necessary to promote development stating:

" ... The harmonization of the two needs has led to the concept of sustainable development, so such that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations.

Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs."

Treating the principle of sustainable development as a fundamental concept of Indian law, it was opined:

"The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires."

The case at hand must be judged having regard to the aforementioned pr!nciple in mind. The Respondents categorically denied and disputed that F there is any water shortage in the village. The village is situated near a sea having five water tanks in or around therein. It is, therefore, difficult to accept that there had been acute water shortage in the village, as was submitted by Ms. Malhotra. The tank in question is not a natural tank. Only rain water could be collected in it. It has been a dumping ground for a long time.

G Although. there is no material on records to show as to since when it has fallen in disuse, indisputably the tank in question is in a dilapidated condition for a long time and has beer. used as a dumping yard and sewage collection pond. In our opinion, thus, it is not a case where we should direct its resurrection.

H The High Court in its judgment has taken into consideration all relevant

SUSETHAv. STATE OF TAMIL NADU [SINHA, J.] 369

factors. It was not pointed out that essential features or other relevant principles A of law were not taken into consideration by the High Court in passing the impugned judgment.

We would, however, direct the. State and Gram Panchayat to see that other tanks in or around the village are properly maintained and necessary steps are taken so that there is no water shortage and ecofogy is preserved. B

For the foregoing reasons, we do not find any reason to interfere with the impugned judgment. The appeal is dismissed without any order as to costs.

v.s.s.

Appeal dismissed. C