National Green Tribunal
Thangabai.T vs Tamil Nadu Revenue Department on 31 March, 2022
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 180 of 2020 (SZ)
(Through Video Conference)
IN THE MATTER OF
T. Thangabai, Zamin Pallavaram, Chennai
....Applicant(s)
Versus
The Secretary to Govt. of Tamil Nadu and Ors.
...Respondent(s)
Judgment Pronounced on: 31st March, 2022.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
For Applicant(s): Mr. Darwin
(Power of Attorney- Appeared in Person)
For Respondent(s): Dr. D. Shanmuganath for R1 to R3, R5 & R6
Mr. N.L. Rajah, Senior Counsel along with Mr.
Thayaparan for R7.
ORDER
Judgment pronounced through Video Conference. Application is disposed of with directions vide separate Judgment. All pending interlocutory application(s), if any, also stands disposed of, in view of the disposal of the Application.
.................................J.M. (Justice K. Ramakrishnan) ................................E.M. (Dr. Satyagopal Korlapati) O.A. No.180 of 2020 31st March, 2022. AM.
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BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Original Application No. 180 of 2020 (SZ) (Through Video Conference) IN THE MATTER OF
1. T. Thangabai W/o. C. Thankamony No. 195, Dharga Road, Zamin Pallavaram, Chennai- 600 043 ....Applicant(s) Versus
1. The Secretary to Government of Tamil Nadu Revenue and Disaster Management Department, Fort St. George, Chennai- 600 009
2. The Secretary to Government of Tamil Nadu Public Works Department Fort St. George, Chennai- 600 009
3. The Secretary to Government of Tamil Nadu Environment and Forest Department Fort St. George, Chennai- 600 009
4. The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai- 600 008
5. The Collector, Kancheepuram District, Kancheepuram- 631 501
6. The Collector, Chengalpattu District, Chengalpatu- 603 001
7. SNP Infrastructure LLP, Rep by its Power of Attorney Agent M/s. Embassy Property Developments Private Limited No. 680, FNO-203, Regency House, Durga Nagar Colony, Hyderabad- 500 082 ... Respondent(s) 2 For Applicant(s): Mr. Darwin (Power of Attorney- Appeared in Person) For Respondent(s): Dr. D. Shanmuganath for R1 to R3, R5 & R6 Mr. N.L. Rajah, Senior Counsel along with Mr. Thayaparan for R7.
Judgment Reserved on: 03.03.2022 Judgment Pronounced on: 31st March, 2022 CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The above application was filed by the applicant through her power of attorneys, namely, her sons alleging that 7th respondent had encroached the water body and constructed their buildings.
2. It was alleged in the application that herself and her husband Mr. C. Thankamony had purchased 1 acre and 58 cents of land situate at Zamin Pallavaram Village, Tambaram Taluk, Kancheepuram District (Now Chengalpattu District) comprised in Survey Nos. 198/9A, 198/9B and 198/8B vide registered sale deed no. 1309 and 1308 dated 26.03.1983 and also document no. 3721/1983 dated 31.08.1983.In the year 1997 her husband sold away a piece of land measuring an extent of 3 27 cents comprised in Survey No. 198/8B to one V. Iphen, S/o Vethackan as per document no. 1567 of 1998. They sold a portion of the property to the 7th respondent having an extent of 58 cents in Survey No. 198/9A and 198/9B as per registered document no. 4197/2004 dated 07.10.2004. Through his power of attorney, B Sivaji Rao, Sri V. Iphen sold the property assigned to him by the applicant and her husband to the 7th respondent as per document no. 5562 of 2006.
3. In 2007, they started their encroachment into water channels (Vaikkal Pormboke) adjacent to their site at Pallavaram. They also encroached water channel which passes through their land by raising 7 feet height concrete compound wall. Though, objections were raised to Revenue officials regarding the same, they did not take any action. Thereafter, they filed Writ Petition as W.P. No. 33533 of 2007 before the single Bench of Hon'ble High Court of Madras and the Writ Petition was dismissed with a direction to approach the appropriate forum evidenced by Annexure-3.
4. The 7th respondent approached the Revenue Department and obtained G.O No. 262 dated 23.05.2008 in their favour. With ulterior motive, without any valid justification and valid reasons, in the guise of Special Economic Zone, they obtained approval for re-routing the water channel for their personal benefits and greediness and G.O. Ms. No. 262 so obtained is produced as Annexure-4.
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5. The reasons stated by the Revenue Department in their G.O are based on false and misleading Statements. On 12.01.2008 and 04.02.2008, the DRO of then Kancheepuram District along with revenue officials inspected the site and submitted a false and biased report to the then District Collector, Kancheepuram District based on which this notification was issued. The details of the original water channel belongs to the Government-
exchanged to 7th respondent vide G.O. 262 was described as follows:
Ward No. Survey Number T.S. Number 204/1 32/2 204/1 37/1 198/1 38 C23 203/1 64 181/1 69 182/1 70/2 C24 186/1, 188/1, 197/1 79/2 195/1 93/2
6. The observations made by the DRO in the report, according to the applicant are not correct. The private lands are situated in between the lands of 7th respondent which are as detailed below:
Survey No. 198/9A1- 23 cents of agricultural land belongs to C. Thankamony.
Survey No. 198/9B1-19 cents of agricultural land belongs to T. Thangabai.
Survey No. 198/9B part-1798 square feet of land belong to Bino Wesley. (Sold by the applicant vide Doc No. 1673/2009) Survey no. 198/8B2- 27 cents of agricultural and belongs to C. Thankamony.
7. On account of the permission granted, the free flow of water drain from their land is also obstructed. The unlawful encroachment into water body has impact on environment and they relied on the decision of the Hon'ble High Court of Madras dated13.08.2014 in Sri Muthukumaran Educational Trust Vs. 5 The Secretary to Government1 and also decision of the Hon'ble Apex Court in Jitendra Singh Vs. Ministry of Environment2 and also Jagpal Singh Vs. State of Punjab & Ors3 in support of their case. So according to the applicant, the act of the Revenue Department is not in accordance with law and on that basis, they cannot encroach into the water body and obstruct the free flow of water body and as such they filed this application seeking the following relief:
Prayer I pray that this Hon'ble Tribunal may be pleased to issue direction to the respondents 1 to 6 to remove all the encroachments in the water channels inside and around Embassy Splendid Tech Zone, owned by the respondent 7 and to restore the water channelds to its original position as per the Revenue records of Block no. 23 and 24 of Ward C, Zamin Pallavaram Village and punish the officials under Section 27 and Section 28(2) of National Green Tribunal Act who failed to do their statutory duty in preserving the water channels and natural drainage pattern of the area and failed in conservation and enhancement of natural resources and thus render justice.
8. 7th respondent filed counter contending that the application is not maintainable and it is barred by limitation and beyond the jurisdiction of this Tribunal. The applicant ever since the year 2007 is in the habit of filing repeated complaints to the Government Authorities and approaching the Courts causing hindrance to the developments of (IT/ITES) SEZ project undertaken by the 7th respondent and approached this Tribunal challenging in effect the G.O. No. 262 dated 23.05.2008 and the planning permission granted in the year 2017 by the 4th respondent which in first place is hopelessly barred by 1 W.P. No. 19853 of 2014 2 AIROnline 2019 SC 1537 3 2011 (11) SCC 396 6 limitation and the forum has no jurisdiction to set aside the Government Order and the planning permission granted.
9. The G.O. NO. 262 of 2008 was issued by Revenue Department of Government of Tamil Nadu granting permission to re-route the field channels after following all requisite norms and in exchange of it an extent of 50 cent of land owned by the 7 th respondent as detailed in the Government order which was handed over to the Government. As per the said G.O, the surrendered lands were excavated forming deep channels with cement plastering to drain storm water and it was constructed at the cost of 7th respondent. The exchange of land by forming re-routed field channel were completed as early in the year 2009 and excluding those lands compound wall was built, required SEZ sanction from the Ministry of Commerce and Industry, Government of India, necessary NOC from ELCOT and MSB planning permission from CMDA were obtained and the construction of all ten blocks are in progress and construction of two towers have been completed, two towers nearing completion and the foundation work in six towers are completed and construction is in progress.
10. The entire site measuring an extent of 11.14.7 hectares have been developed, modified and construction work is in progress as per specifications of the sanctioned planning permission. They earlier applied for planning permission with CMDA, 4th respondent herein, as early as on 28.02.2008 and this being IT SEZ buildings, the Electronic Corporation of Tamil Nadu Ltd 7 had granted NOC dated 14.02.2008, whereby this respondent had the benefit of G.O. Ms. No. 169 industries (MIE) Department dated 12.09.1996 which entitled this respondent to commence and carry out the construction activities while the planning permission with CMDA was under the process of approval. Immediately, thereafter, the construction activities were commenced by raising the level of the entire site and the foundation work with construction of three basement level for parking was carried out during 2008-2010 but due to commercial reasons arisen out of recession in IT industry, the development of the project was kept on hold temporarily. Later, in the year 2016, the planning permission process with CMDA was renewed and requisite approvals were obtained and the construction activities at the project site were restarted and are in progress since the year 2017.
11. The present applicant had filed W.P. No. 33533/2007 and W.P. No. 44410/2016 to exert pressure on this respondent to heed with their illegal demands and those two writ petitions were disposed of and since, they were not successful in getting the reliefs as expected approached this Tribunal with mala fide intentions. In W.P. No. 44410/2016 before the Hon'ble High Court of Madras, the grievance of the applicant was that access to their property was blocked because of the upcoming development project.
12. The 7th respondent had petitioned to the 1st respondent on 03.10.2007 and 04.10.2007requesting to give in exchange of 8 their privately owned land measuring 0.20.00 hectares (50 cent) in exchange of dried up field channel measuring 0.19.50 Hectares (48 cent) running through their site which are classified as channel poromboke with a view to have a contiguous land for development of SEZ. On the basis of the said request the Revenue Authorities examined the possibility of exchange of land and called for report from the various departments viz. District Collector and Sub-Collector Chengalpet, Special Commissioner for Land Administration, Executive Engineer, PWD Irrigation Source, Kancheepuram, Tahsildar Tambaram. After inspection of the site, the Authorities have recommended for exchange of land and directed this respondent to hand over 0.20.3 Hectare of patta land (50 cent) for formation of channel as per Rule 26A of the Revenue standing order. Further, the 1st respondent directed the respondent to deposit Rs. 17.65 lakhs towards expenses for earthwork excavation and to lay cement concrete with 20mm HBC jelly and gravel backing. Accordingly, G.O. Ms. No. 262 dated 23.05.2008 was passed by the 1st respondent. The 7th respondent in compliance to the direction deposited the amount of 17.65 lakhs by demand draft bearing no. 896878 drawn on State Bank of India, Madipakkam Branch.
13. As per orders of the 1st respondent, the earmarked portion of land of an extent of 0.20.3 hectares owned by this respondent in the stretch of S. No.s 204/3A, 5A, 182/6, 7, 8, 9,10, 181/3, 4, 8, 198/8B2, 203/2A, 7A1, 194/2, 3, 4, 6, 7, 8, 9, 11, 12, 13, 9 195/2, 5 were delivered and handed over to the Government and the same has been classified as channel poromboke. In this stretch of land handed over to the Government, earth excavation work with dimension of 150cm x 60cm x 50cm was done and completed in the year 2009 by the PWD Department as per drawings. This has been done to ensure drainage and free flow of storm water from the northern side to the drainage channel running parallel to Pallavaram-Thoraipakkam radial road on the southern side. By virtue of said initiation, a proper and better channel to drain storm water has been accomplished. The other allegations made are not correct and denied.
14. The 7th respondent also has given the details of the litigations filed by the applicant and her husband against the 7th respondent as follows:
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15. They denied the allegation that since the encroachment of water channel passing near the applicant's land by raising 7 feet high concrete compound wall was removed and as such they did not proceed further was denied by them. They denied the allegation that G.O. No. 262 dated 23.05.2008 was obtained by misrepresentation etc as not correct. In W.P. No. 44410/2016 before the Hon'ble High Court of Madras, the grievance was only regarding denial of access to their property but the legality of G.O. No. 262 was not raised. The attempt of the applicant is to only to get access to their property through the property of the 7th respondent which they are not entitled to get. They denied the allegation regarding the misrepresentation 12 and false representation in obtaining the permission for diverting the channel. The new channel runs through the boundary of the applicant property and it was once the applicant had made illegal attempt to close the newly formed channel to widen the access to their property that certain cases have been registered. The applicant is not entitled to get any of the reliefs and prayed for dismissal of the application.
16. The applicant filed rejoinder to the counter filed by the 7th respondent reiterating their contentions raised in the application and also relying on certain documents produced and reiterating the allegations made against the officials. They also detailed certain events which according to the applicant initiated at the instance of 7th respondent to harass the applicant as follows:
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17. They denied the allegation of any unlawful demands made as alleged by the 7th respondent. They prayed for allowing the application.
18. Other respondents have not filed any statement.
19. This Tribunal had appointed a Joint Committee consisting of
1) the District Collectors of Kanchipuram District and Chengalpettu District or a Senior Officer not below the rank of Assistant Collectors/Sub Divisional Magistrates deputed by them and 2) the Superintending Engineer of Public Works Department having jurisdiction over these areas to inspect the area in question and submit a report as to 1) whether there existed any water canal connecting the Putheri and Kizhkattalai Lake as alleged by the person representing the applicant before this Tribunal at the time of hearing and admisssion, 2) whether there is any encroachment into the water canal or any Government Poromboke abetting the water canal by the 7th respondent and 3) whether there was any obstruction caused to the free flow of water through this canal to the above said lakes and if there is any violation found, what is the action taken including the removal of the encroachment and assess environmental compensation for the damage, if any, caused to the environment. The Public Works Department was designated as nodal agency for co-ordination and for providing all necessary logistics for this purpose.
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20. Joint Committee has filed a report dated 10.02.2022 with certain photographs e-filed on 15.02.2022 which reads as follows:
"INSPECTION REPORT OF THE JOINT COMMITTEE CONSTITUTED BY THE HON'BLE NATIONAL GREEN TRIBUNAL (SOUTHERN ZONE) IN RESPECT OF O.A NO.180 OF 2020 FILED BY T.THANGABAI REPORT FILED BY THE JOINT COMMITTEE It is stated that the impugned lakes Pallavaram and Kizhkattalai lakes are under the maintenance control of the Water Resources Department. And this report is filed pursuant to the order dated
21.01.2022 of this Hon'ble Tribunal.
2. It is stated that before agglomeration of the Chennai city and its suburb, the tanks were viable irrigation tanks and there were inlet channels through which the surface run off from the catchments of the tanks would in fall into the tanks. These tanks were, of late, have lost their irrigation potential.
3. In this regard, it is stated that the applicant herein had issued notice under Sec. 80 of CPC dated 15.12.2019 by email to the District Collector, Chengalpattu complaining about the transfer of 0.20.0 ares extent in the water body poromboke land in S.No.32/2 in Zamin Pallavaram Village, Ward-C Block- 23 and 24 in Chengalpattu Village, Pallavaram Taluk vide G.O. Ms. No. 262, Revenue (Ni.Mu.1(1) Department dated 23.05.2018 to the 7th respondent SNP Infrastructure Private Ltd., and to cancel the same to protect the water bodies.
4. The 7th respondent came up with request for alienating 0.20.0 ares Govt. lands classified as vaikkal poromboke in Ward No. C/23 and C/24 in different S. Nos. on the basis of exchange of land to the same extent or little more (0.20.3) in the same wards for establishing Special Economic Zone. The Government also approved the exchange of land in G.O. Ms. No. 262, Revenue (Ni.Mu.1(1) Department dated 23.05.2008 (Annexure). The 7th respondent has re-routed the channel as per the plans.
5. As per the directions of this Hon'ble Tribunal, the Joint Committee inspected the site on 10.01.2022 & 07.02.2022 and during the inspection of the officers, it was found out that as regards the allegation about encroachments, the area would be surveyed and after demarcation and eviction process will be taken in terms of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act and Rule 2007. The lands which were once agriculture fields have been converted as housing plots, industrial houses, colleges, multi storeyed apartments and commercial houses now in the long run and the Government order dated 23.05.2008 envisaged construction of storm water drains in the exchanged portion of the land from the 7th respondent to avoid inundation during rainy seasons.
6. It is stated further that as ascertained from the local enquiry that the petitioner is left with no option except to get access to her lands from behind the private property owned by her and is making false allegations as if the 7th respondent has encroached the water bodies impugned in this 0.A. and is attempting to invoke the jurisdiction of this Hon'ble Tribunal as if there is substantial question of environment craving interference of this Hon'ble Tribunal and as such abusing the process of law after selling her property to the 7th respondent and also when once the Government land was alienated to the 7th respondent under 17 the due process of law by exchange of the patta lands of the 7th respondent.
7. As such, it is stated that the Original Application filed by the petitioner is only to vent her personal vengeance against the 7th respondent for the reasons better known to the petitioner only and making all attempts to invoke the environmental issue which ipso facto is not correct and is patently irregular in law since substantial question of environment did not arise since the exchange of land was made under the orders of the Government for forming a re-routed channel public use. It is also stated that the channel was cleaned and desilted in the presence of the son of the petitioner and the photographs during the desilting and cleaning process are enclosed in the Annexure. It is, therefore, prayed that this Hon'ble Tribunal may be pleased to take on record the submissions made supra and pass appropriate further orders as deemed fit in the facts and circumstances of the case and thus render justice."
21. The applicant filed objection to the Joint Committee report and produced certain annexure as Annexure C1 to C22. They have reiterated that 7th respondent had encroached into the water channel which obstructed the free flow of water and there were violations of G.O issued. It was mentioned in the objection that earlier in September, 2021, the Joint Committee inspected the site and marked the encroachment areas in the water channels by the 7th respondent snapshots of the same were produced as annexure C15 and this was conveniently omitted from Joint Committee report and they have not correctly identified the encroachments and observed in the report that as regards the allegations about encroachments, the area would be surveyed and after demarcation, eviction process will be taken. So they have not conducted the survey as required for the purpose of identifying the encroachments. They have produced the sketch representing the water channels which runs through the site of the 7th respondent bearing no. T.S. No. 63 produced as annexure C-17 and C-18 and they have relied on certain documents produced by the 7th respondent for the purpose of 18 getting certain permissions which did not disclose certain survey numbers which are really water channels. The respondents have not filed their independent response denying the allegations made by the applicant.
22. Heard Mr. Darwin, power of attorney of the applicant, Mr. N.L. Rajah, Senior Counsel along with Mr. Thayaparan appearing for 7th respondent and Dr. D. Shanmuganath appearing for respondents 1 to 3, 5 & 6. Though, notice was served on the 4th respondent, they did not enter appearance.
23. The grievance in this application is regarding encroachment of a water channel running along the property of the 7th respondent illegally. According to the applicant the G.O No. 262 dated 23.05.2008 was obtained by misrepresentation. These allegations were denied by the 7th respondent.
24. It may be mentioned here that G.O. Ms. No. 262 dated 23.05.2008 was issued in the year 2008 and the lands were exchanged and diverted water channel was constructed by the PWD in the exchanged land in the year 2009 itself. The applicant has not challenged the G.O. Ms. No. 262 before any authority. It was mentioned in the report that as regards encroachments, the area would be surveyed and after demarcation eviction process will be taken in terms of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act and Rules, 2007. The permission for rerouting the water channel which was originally passing through the property of 7th respondent was permitted as per the existing standing order 19 and the present water channel that has been constructed in the exchanged land is helpful to avoid flood in that area.
25. The allegation in the application was that there was a channel poromboke in the property of the 7th respondent which was encroached by the 7th respondent but the documents produced and also the Committee report shows that the water channel was permitted to be diverted through the property which was exchanged as per G.O. Ms. No. 262 dated 23.05.2008. There is no acceptable document produced to prove that apart from this water channel whether there was any other water channel in existence through the property of the 7th respondent which was encroached by them. Further, it was also mentioned in the report that if there is any other encroachment in the public water channel apart from this, necessary survey will be conducted and action will be taken to evict the same.
26. The Learned Senior Counsel for the 7th respondent also submitted that if such survey was conducted and it was found that there was any encroachment made by the 7th respondent unauthorisedly, then they will be abide by the directions issued by the authorities in this regard. So under circumstances, we feel that there is nothing survives in the matter but the application can be disposed with some directions. So the application is disposed of as follows:
i. The authorities, as mentioned in the Joint Committee report, are at directed to conduct proper survey of the water channels, if any, in existence as per revenue records 20 and identify encroachments, if any, made by the 7th respondent or others and take appropriate action to remove the encroachment and restore the water body strictly following the procedure provided under law. ii. The applicant is not entitled to challenge the legality of G.O. Ms. No. 262 dated 23.05.2008 after lapse of nearly 12 years before this Tribunal. The diversion of the water channel on the basis of the G.O. Ms. No. 262 dated 23.05.2008 also cannot be challenged before the Tribunal after the period of limitation of 6 months and 60 days mentioned in Section 14 of the National Green Tribunal Act, 2010 and even assuming that Section 15 can be applied, even then the alleged diversion was happened in the year 2009 and the 5 year period mentioned in Section 15 was also lapsed in the year 2014 and as such the applicant is not entitled to challenge those aspects before this Tribunal invoking Section 14 and 15 of the National Green Tribunal Act, 2010 after the period of limitation as contemplated under Section 14 and 15 of the Act were over.
iii. If there is any future encroachment or obstruction to the water channel which was diverted had been done by the 7th respondent, then the right of the applicant to approach the appropriate forum in this regard is left open. iv. Considering the circumstances, parties are directed to bear the respective costs in the application. 21 v. The Registry is directed to communicate this Judgement to the official respondents immediately by e-mail for their information and compliance of the direction.
27. With the above observations and directions, the application is disposed of.
...................................J.M. (Justice K. Ramakrishnan) ................................E.M. (Dr. Satyagopal Korlapati) O.A. No.180 of 2020 31st March, 2022. AM.
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