National Green Tribunal
G. Devarajan vs State Of Tamilnadu on 3 March, 2022
Bench: K. Ramakrishnan, Satyagopal Korlapati
Item No. 8 & 9:-
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Appeal No.10 of 2021 (SZ)
With
Original Application No.91 of 2021 (SZ)
(Through Video Conference)
IN THE MATTER OF
G. Devarajan, Arumbakkam,
Chennai.
....Appellant (s)
Versus
State of Tamil Nadu,
Rep. by its Chief Secretary to Govt.
Chennai and Ors.
... Respondent(s)
Date of hearing: 03.03.2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Appeal No.10/2021 (SZ):
For Appellant(s): Mr. S. Manuraj and
Mr. T. Shrinikethan.
For Respondent(s): Dr. D. Shanmuganathan along with
Mr. C. Harsharaj, AGP for R1 & R2.
Mr. R. Neelakandan, Addl. Adv. General along with
Mr. D.R. Arun Kumar for R3.
Mr. G.M. Syed Nurullah Sheriff for R4.
Mr. Thirumalai Rajagopal for R5.
Page 1 of 16
O.A. No.91/2021 (SZ):
For Applicant (s): Mr. S. Manuraj and
Mr. T. Shrinikethan.
For Respondent(s): Dr. D. Shanmuganathan along with
Mr. C. Harsharaj, AGP for R1 & R2.
Mr. R. Neelakandan, Addl. Adv. General along with
Mr. D.R. Arun Kumar for R3.
Mr. G.M. Syed Nurullah Sheriff for R4.
Mr. Thirumalai Rajagopal for R5.
ORDER
1. As per order dated 06.01.2022, after considering the various reports submitted by the different regulators, this Tribunal had posted the case to 02.02.2022 for completion of pleadings, filing objections (if any) to the report already filed, consideration of further reports and also for hearing. On 02.02.2022, it was adjourned to today by notification.
2. After the case was adjourned, we have received the report submitted by the District Collector dated 31.01.2022 which reads as follows:-
"INDEPENDENT REPORT FILED BY THE DISTRICT COLLECTOR, CHENNAI I, Vijaya Rani, I.A.S., wife of Thiru Roshan, Hindu, aged about 47 years, discharging the duties as the District Collector, Chennai District, having office at Chennai Collectorate, Singaravelar Maligai, Rajaji Salai, Chennai -600 001, do hereby solemnly all 0001, do hereby solemnly affirm and sincerely states as follows:Page 2 of 16
1) I respectfully submit that I file this Independent status report as follows:
I humbly submit that the applicant has filed this application under Section 14(1) read with Section 18(1) of the National Green Tribunal, Act, 2010, for the following relief:
"A. Declare the actions of the State of Tamil Nadu in implementing the proposed project, in contravention of the applicable laws and being devoid of merits, as illegal and violative of the Environment (Protection) Act, 1986.
B. Direct Respondent Nos 1 & 3 to not undertake any construction activities until this Application is disposed C. Direct the Respondents herein to restore the area where there has been any illegal construction work.
D. Direct the Respondents to assess the damage caused due to the illegal construction and use the same to restore the area;
E. Impose exemplary costs as environmental compensation charge for the damages done to the land in question;
F. Direct Respondents No.1 to initiate prosecution under the Environment Protection Act, 1986 against Respondent Nos. 2 &3 and the respective officials, for permitting and commencing the project activities in violation of the law; and G. Pass such further order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case"
2) I respectfully submit that, a scheme of construction of a multi storied building with 304 HIG Residential flats and commercial complex at Arumbakkam is being implemented by the 3rd Respondent Tamil Nadu Housing Board and that a boundary issue has arisen between the 2nd Respondent, Public Works Department and the 3rd Respondent Tamil Nadu Housing Board in the project land. In this regard, an inter- departmental co-ordination meeting to discuss the construction of the said building under the Chairmanship of Chief Secretary to Government was held at 11.00 a.m. on 30.10.2021.
3) I respectfully submit that in the said meeting the following decisions were made:
Page 3 of 16a) Whenever there are inter-departmental disputes, it has to be resolved by way of inter-departmental talks/meetings and sorted out within the Government;
b) The Revenue Department may sort out this issue by conducting joint inspection with officials of Commissioner of Land Administration, Water Resources Department/ Public Works Department, Tamil Nadu Housing Board and file a joint report to the Government;
c) Thereafter a common counter affidavit may be filed before the National Green Tribunal by the Government:
4) I respectfully submit that in this connection, a Joint Inspection of the subject field was held at 12.00 p.m on 04.12.2021 by the
1. District Revenue Officer, Chennai District, Chennai,
2. District Revenue Officer (Land Acquisition), TNHB , Chennai-
600035,
3. Assistant Engineer, PWD on behalf of the Superintending Engineer, Water Resources Department, Public Works Department, Chennai,
4. Personal Assistant (Survey) to the District Collector, Chennai,
5. Revenue Divisional Officer, Revenue Division Central, Chennai- 600101,
6. Tahsildar, Aminjikarai, Chennai-30,
7. Inspector of Survey, Chennai,
8. Deputy Inspector of Survey, Aminjikarai,
9. Field Surveyor, Aminjikarai Taluk,
5) I respectfully submit that the subject dispute land involved in this case is measuring 3.3000 Hectares, comprised in T.S.No.2 Block No. 4 of Arumbakkam Town. The said dispute land stands registered in the Computerized Town Survey Land Register Records as follows:
Page 4 of 166) I respectfully submit that the said dispute land is in an irregular shape abutting Poonamallee High Road on its southern side, Sketch Enclosed, herewith the said land is situated on the Northern side of Poonamallee High Road and southern side of Block No.6 of Naduvakkarai village meant for Cooum River. The Tamil Nadu Housing Board has proposed to construct a multi-storied building on this portion of land in T.S.No.2, Block No.4 of Arumbakkam Town.
The four side boundaries of the said land are as follows: (Sketch Enclosed)
7) However, in the order dated 03.01.2022, the National Green Tribunal (South Zone) has passed an order directing the respondents as follows:
"8. It is not clear from the report submitted that whether the boundary of the river has been traced on the basis of the original records pre independent era. The direction given by us was to ascertain the boundary on that basis and also to ascertain as to whether any river poromboke as per the original revenue records have been converted into a patta land on or later occasion. But, that direction has not been complied with.
9. The plan produced along with the status report does not show the buffer zone fixed by the department where construction should not be made as per the directions given by the Hon'ble Supreme Court in Mantri Techzone Private Limited vs. Forward Foundation (2019) 18 SCC 494 and also other similar matters.
10. The Joint Committee has also not filed the report as directed so far. We do not understand as the Joint Commissioner has not filed the report, though independent reports are coming up from the members of the committee, we have appointed the Joint Committee to ascertain the real status on the basis of the original revenue records of pre-independence era, whether any exemption will have to be granted or not has to be considered Page 5 of 16 by the Tribunal after ascertaining the original boundary of the river. If the Joint Committee did not file the report before the next hearing date, then the members of the committee are directed to appear before this mound cause as to why action should not be taken against them for non-compliance of the direction issued by this Tribunal as contemplated under Sections 25, 26, 28 of the National Green Tribunal Act, 2010.
11. Further, it is seen from the report that there is a Baby Canal of 14 metre width has been reduced to 4 metres due to dumping of debris and other garbage. They have not located the baby canal in the plan as well and they are directed to show the location of the baby canal in the plan and also show the encroachment if any, the reason for reduction, how far it has been reduced and it is on that basis that the Tribunal has to consider as to whether any further direction will have to be given to restore the baby Canal.
12. The Joint Committee as well as the Water Resources Department (WRD) including the Principal Secretary to Government for Revenue and Disaster Management Department are directed to file their reports as directed by this Tribunal on or before 02.02.2022 by e-filing in the form of searchable PDF/OCR support PDF and not in the form of Image PDF along with necessary hard copies to be produced as per rules. If any plan will have to be obtained from the Archive Department, then they are directed to collect the same for the purpose of identifying the original flow of the river as per the original records, so that, that can give the clear picture of boundary of the Cooum river which will be helpful for the Tribunal to decide the issue in an effective manner.
13. The Registry is directed to communicate this order to the members of the committee and also to the official respondents immediately through e mail for their information and also for compliance of the direction to avoid".
8) In pursuance of the said order, the Assistant Director of Survey and Land Records had addressed the Principal Secretary/Commissioner of Archives and Historical Research with a request to send the Field Measurement Book (FMB) in respect of Survey. Nos. 249, 250 and 251 of Naduvakkarai village pertaining to the year 1905. In response to this, along with the Letter No.N/4076/S9/2021 dated 07.10.2021, the Principal Page 6 of 16 Secretary, Archives has sent Field Measurement Book for S.Nos. 249, 250 and 251 of Naduvakkarai village pertaining to the year 1905, S. Nos. 95, 96, 98, and 99 of Naduvakkarai village pertaining to the year 1906. The Principal Secretary/Commissioner of Archives and Historical Research has Letter stated that the Field Measurement Book for S. Nos, 252 and 253 were not traceable in his office. (Copy of letter enclosed ).
9) It is respectfully submitted further that the District Revenue Officer, Chennai District, has instructed the Assistant Director of Survey and Land Records to prepare a combined sketch showing the boundary of the river has been traced on the basis of the original records pre independence era. It was also stated that the direction was given by the National Green Tribunal to ascertain the boundary on that basis and also to ascertain as to whether any river poromboke as per the original revenue records have been converted into a patta land on or later occasion. Besides this, instructions were also issued to the Assistant Director of Survey and Land Records to furnish the location of the Baby Canal which was originally having a width of 14 metres and subsequently reduced to 4 metres due to dumping of debris.
10) It is respectfully submitted that in response to this, the Assistant Director of Survey and Land Records in his report in Rc.No.E1/2623/2021 dated 29.01.2022 has submitted that the said Village, Arumbakkam was originally attached with Saidapet Taluk of composite Chengalpattu District, Thereafter, the said village was attached with erstwhile Egmore Nungambakkam Taluk till 11.02.2014. Consequent on the bifurcation/trifurcation of taluk offices in Chennai District, the said village was attached with the newly formed Aminjikarai Taluk with effect from 12.02.2014. AS the Field measurement book for S.No.97 of Naduvakkarai village could not be traced at this distance of time, the Joint Inspection was carried out by the officials of Revenue Department, Tamil Nadu Housing Board and the Public Works Department and that the Buffer zone details available on the Southern side of T.S.No.1 of Block No.6 of Naduvakkarai Town of the year 1966 have been detailed in the combined sketch enclosed. The Assistant Director of Survey and Land Records has further submitted that the details of Baby Canal could not be traced since original records are with PWD (WRD) and hence the same could not be Page 7 of 16 marked in the sketch prepared in this regard. The boundary have been clearly demarked in the prepared sketch submitted along with this report. The sketch may be treated as part and parcel of this report.
11) I respectfully submit this Independent status report is filed as per the directions of this Hon'ble Tribunal dated 09.12.2021. This Hon'ble Tribunal may be pleased to accept this status report filed by me and pass appropriate orders that may deem fit and proper in the circumstance of the case and thus render justice."
3. They also produced a plan along with the report where according to the District Collector's finding with the available records that the Violet shaded portion is the Cooum River flowing on the TNHB land and the buffer zone was mentioned as Yellow shaded portion.
4. It was mentioned in the report that on verification of the records from the Archives and Historical Research in respect of Sy. No.249, 250 and 251 of Naduvakkarai Village pertaining to the year 1905, they got a letter No.N/4076/S9/2021 dated 07.10.2021 where the Principal Secretary, Archives sent the Field Measurement Book of Sy. No.249, 250 and 251 of the said village pertaining to the year 1905 and Sy.
No.95, 96, 98 and 99 of Naduvakkarai Village pertaining to the year 1906. It was informed in the letter that the Field Measurement Book for Sy. No.252 and 253 were not traceable in the office. Though it was mentioned that the copy of the letter was enclosed, but unfortunately the letter was not enclosed.
Page 8 of 165. Further, there was no attempt made on the part of the District Collector to verify the A-Register of 1905 to ascertain the nature of the land in respect of the missing FMB Sketch of the Survey Numbers mentioned in the report and also examine the Sy. No.249, 250 and 251 of Naduvakkarai Village pertaining to the year 1905 to find out as to what is the nature of those lands comprised in Sy. No.252 and 253 as well as the original extent of the river. If such an attempt was made, it could have been easily traced out the nature of land of all these survey numbers to find out whether it is a part of the river poramboke or it is registered patta lands.
6. The District Collector is also expected to verify the survey numbers which are the opposite side of the project area to ascertain as to whether any river poramboke land was available in those areas and whether there was any accretion or decrease of the area due to natural changes in the flow of the river or due to encroachments.
7. Once such an exercise is made, it is possible to ascertain as to whether there exists any river poramboke in that stretch and what would have been the exact width of the river in that area originally. We want the real picture of the river and as to whether there is any possibility of restoring the river to its original position or not, can be considered by Page 9 of 16 the Tribunal on the basis of the nature of improvements made and also the nature of developments that have been taken place due to passage of time.
8. We have also received the Joint Committee report dated 02.03.2022, e-
filed today (i.e. 03.03.2022) which reads as follows:-
"JOINT COMMITTEE REPORT ON COOUM RIVER IN ARUMBAKKAM VILLAGE, AMINJIKARAI TALUK OF CHENNAI DISTRICT.
The Hon'ble National Green Tribunal (SZ), in its order dated 06.01.2022, dire cte d t he joint committee to file the report on or before 02.02.2022. In this regard, the committee constituted early by this order dated 0 8 . 0 4 . 2 0 2 1 v i d e 0 . A 9 1 O f 2 0 2 1 i s a g a i n revisited the Cooum River in Arumbakkam village of Aminjikarai T al u k on 09.02.2022 to verify the status of the Cooum river a t field.
Officers Present during Inspection:
i. Er. A.Muthaiya, Superintending Engineer, W a t e r R e s o u r c e s D e p a r t m e n t , Palar Basin Circle, Chennai -05 ii. Dr.C.Kaliyaperumal, Director, Ministry of Environment, Forest & Climate Change, I nt egrat ed Regional O f f i ce, Chennai - 06. i i i . D r . K u ri a n J o s ep h, Professor, C e n t r e f or E n v i r o nm en t a l s t u di es , Anna University Chennai, Rep.of State Level Impact Assessement Authority, Saidapet, Chennai - 15.Page 10 of 16
iv. Dr. S.Viswanathan, Environmental Expert, Chennai River Restoration Trust, Chennai-28. v. Smt.V,Saradha Rukmani, District Revenue Officer (I/c), Chennai and vi. Thiru.V.Saravanan, A s s i st a nt D i re c t o r o f S u r v e y a nd L a n d R e co r d s , Nominated by District Collector, Chennai for f i e l d i nspection.
In pursuance to the orders dated 06.01.2021 (SZ) of this Hon'ble Tribunal made in the above Appeal and the Original Application, the Joint c o m m i t t e e i n s p e c t e d t h e i m p u g n e d s i t e o n 09.02.2022 by the members It is submitted that the Joint Committee i n s p e c t e d t h e i m pu g ned si t e af t e r t he d em a r cat i on of t he l i m i t s of P W D / W R D i n A r u m b a k k a m v i l l a g e a n d T N H B we r e com pl et e d b y th e r ev e n ue authorities. Further, it is also submitted that the sketch is prepared by the revenue authorities after verifying the revenue records and measuring the boundary of river in Arumbakkam village i s f i l e d herewith.
However, in the order dated 06.01.2022, the National Green T r i b u n a l ( S o u t h Z o n e ) h a s p a s s e d a n o r d e r d i r e c t i n g t h e respondents as follows;
8. It is not clear from the report submitted that whether the boundary of the river has been traced on the basis of the original records of pre independence era. The direction given by us was to ascertain the boundary on that basic and also to ascertain as to whether any river poramboke as per the original revenue records have been converted into the patty land on or later occasion. But that direction has not been complied with
9. The plan produced along with the status reports does not show the buffer zone fixed by the department where construction should not be made as per the directions given by the Hon'ble Supreme court Mantri Page 11 of 16 Techzone private limited vs forward foundation(2019)18 SCC 494 and also other similar such matters.
10. The Joint committee also has not filed the report as directed so far. We do not understand as to why the joint committee has not filed the report, though the independent reports are coming up from the members of the committee. We have appointed the Joint committee to ascertain the real status on the basis of the original revenue records of pre independence era. Whether exemption will have to be granted or not has to be considered by the Tribunal after ascertaining the original boundary of the river. The Joint committee did not file the report before the next hearing date, then the members of the committee are directed to appear before this Tribunal to show cause as to why action should not be taken against them for non compliance of the direction issued by this Tribunal as contemplated under section 25,26 and 28 of the National Green Tribunal Act, 2010.
11. Further, it is seen from the report that there is a baby canal of 14m width has been reduced to 4m due to dumping of debris and other garbage. They are directed to show the location of the baby canal in the plan and also show the encroachment if any, the reason for reduction, how far it has been reduced and it is on that basis that the Tribunal has to consider as to whether any further direction will have to be given to restore the baby canal.
12. T h e J o i n t C o m m i t t e e a s w e l l a s t h e W a t e r R e s o u r c e s Department(WRD)including the Principal Secretary to Government for Revenue and Disaster Management Department are directed to file their report as directed by this Tribunal on or before 02.02.2022 by e-filing in the form if searchable PDF/OCR support PDF and not in the form of Image PDF along with necessary hard copies to be produced as per rules. If any plan will have to obtained from the Archive Department then they are directed to collect the same for the purpose of identifying the original flow of the river as per the original records, so that, that can give the clear picture of boundary of the Cooum river which will be helpful for the Tribunal to decide the issue in an effective manner.
Page 12 of 16It is submitted that the Assistant Director of Survey and Land Records, has stated the records relating to the b o u n d a r y o f t h e r i v e r i n Ar um b akk am vi l l a ge c oul d not b e t r a ced /ob t ai n ed f rom A r chi ves D e p a r t m e n t v i d e L e t t e r . N o . N/4076/2021 dated 07.10.2021. It is also submitted that, though the revenue records of the Cooum river in Arumbakkam village prior to Independence era pertaining to the y e a r 1 9 0 5 c o u l d n o t b e t r a c e d , t h e b o u n d a r y o f t h e r i v e r w a s demarcated based on the available revenue records of year 1966, And the sketch was prepared by the r e v e n u e a u t h o r i t i e s b a s e d o n the records available.
It is also submitted that there is no river poromboke land was converted into patta land on or later o c c a s i o n a n d t h e r e i s n o encroachment in the impugned site based on the combined sketch prepared by the revenue authorities vide revenue department letter dated R.C.No.E1/2623/2021 dated 29.01.2022.
It is further submitted that there is buffer zone of 15 m from the river bank formed un der Chen nai Rive r R e s t o r a t i o n T r u s t P r o j e ct i n C oo u m r i ve r d u ri n g t h e y ea r 2 0 1 5 - 1 6 a s a f or e sa i d The Water Resources Department has stated that t he Ba b y Canal was formed under CRRT during the year 2 0 1 5 - 1 6 a n d t h e canal was made to carry lean flow to flush the discharge in the ri ver w i t h i n t h e w i d t h o f t h e r i v e r a n d also the alignment of baby canal is incorporated in the sketch prepared by the revenue authorities. It is submitted t h a t t h e b o u n da r y of t h e r i ve r i s c l ea rl y m a rk e d i n t h e sketch prepared by the revenue authorities and the Baby Canal was not disturbed by TNHB while executing the p r o p o s e d project.
I t i s sub m i t t ed t ha t i f no c ons t ru ct i on a ct i vi t i e s i s m a de i n t he buffer zone by the TNHB mentioned in this sketch, and there will be compliance of the conditions Page 13 of 16 mentioned in the NOC issued by Water Resources Department dated 03.10.2020.
It is, therefore, prayed that this Hon'ble Tribunal may be pleased to take on record and pass appropriate f u r t h e r a s deemed fit in the facts and circumstances of the case and thus render j ustice."
9. The Joint Committee also more or less reproduces what was stated by the District Collector in her report. The plan produced by them also shows the river boundary on land and buffer zone fixed in dotted lines and also the location of the baby canal which was said to be encroached by the TNHB as per the allegations made in the application as well as in the appeal memorandum. But the District Collector's report shows that the existence of the Baby canal on land could not be traced out, however, the Joint Committee has surveyed the area and located the baby canal and it is seen from the Joint Committee report that there was no encroachment into the baby canal, and the concrete debris dumped have already been removed and the baby canal has been restored and the free flow of water has been ensured.
10. The learned counsel appearing for the Water Resources Department submitted that they are satisfied with the present buffer zone fixed and if that is retained, there is no possibility of any damage being caused to Page 14 of 16 the river environment as far as Cooum River is concerned, since the original records could not be traced out.
11. However, we feel that one more opportunity can be given to the District Collector to find out from the Director of Surveys and Settlement and also the Archives Department regarding the availability of FMB and A-Register and co-relate those documents to find out as to what is the real nature of the land as per the original revenue records in respect of the area where the present construction is likely to be put up by the Tamil Nadu Housing Board and also on the opposite side of the river.
12. So, they are directed to file a further report on the basis of the above directions and after ascertaining the availability of those documents, and if there is any change in the classification, then the District Collector and the Water Resources Department are directed to conduct a joint inspection and come with a further report in this regard.
13. They are directed to submit their respective reports to this Tribunal on or before 21.03.2022 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules and parties are directed to get ready with the matter on 23.03.2022 for hearing.
Page 15 of 1614. The Registry is directed to communicate this order to the official respondents, especially to the District Collector and the Water Resources Department for their information and compliance of directions.
15. For consideration of further report, filing objections (if any) to the report already submitted and also for hearing, post on 23.03.2022.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM Appeal No.10/2021 (SZ) O.A. No.91/2021 (SZ), 03rd March 2022. Mn.
Page 16 of 16