National Green Tribunal
Thangavelraj S vs Ministry Of Environment Forest And ... on 23 March, 2023
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 132 of 2022 (SZ)
(Through Video Conference)
IN THE MATTER OF
Thangavelraj S.
S/o Shanmugam,
141, Venus Nagar, 2nd Cross,
Rayanoor,
Thanthoni(m) Karur,
Tamil Nadu- 639 005.
...Applicant(s)
Versus
1. Union of India,
Ministry of Environment, Forest & Climate Change,
Rep by its Secretary to Government,
Paryavaran Bhavan,
Jor Bagh Road, New Delhi- 110003.
2. State of Tamil Nadu,
Rep by its Principal Secretary to Govenment,
Department of Environment and Forests,
Scretariat, Fort St. George,
Chennai- 600 009.
3. Department of Municipal Administration, Urban and Water
Supply,
Rep. By its Additional Cheif Secretary to Government,
Scretariat, Fort St. George,
Chennai- 600 009.
4. Tamil Nadu Pollution Control Board,
Rep by its Member Secretary,
100, Anna Salai,
Guindy, Chennai- 600 032.
5. District Environemntal Engineer, Karur,
No. 26, RamaKrishnapuram West,
Karur- 639 001.
6. Th District Collector, Karur,
Thanthonimalai,
Karur.
7. Karur Municipality,
Rep by its Commissioner,
Municipal Office,
Azad Road,
Karur- 639 001.
...Respondent(s)
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For Applicant(s): Mr. Sricharan Rangarajan, Sr. Adv. along
with Mr. Mohammed Ashick, Athiban Vijay
A.K. & Mr. N.S. Amogh Simha.
For Respondent(s): Dr. Kuna. Suryanarayana for R1.
Dr. D. Shanmuganathan for R2, R3, R6.
Mr. S. Sai Satha Jith for R4 & R5.
Mr. K. Balasubramani & S. Kousik for R7.
Judgment Reserved on: 27th February, 2023.
Judgment Pronounced on: 23rd March, 2023.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The application is filed seeking a direction against the respondents to forthwith stop the construction of the bus stand at Thirumanilaiyur Village, Karur District and remove all the obstructions created on the Thirumanilaiyur Rajavaikkal and restore the same to its original status.
2. The applicant claims himself to be an agriculturist currently owning the lands comprising in S.F. No. 109, Thirumanilaiyur Village, Karur District measuring an extent of 1.10 acres classified as "Nanjai". The applicant purchased the above land in the year 2022 prior to which it was owned by his mother-in-law and they were indulged in agricultural activities. The said land is situated within the radius of 450 meters from Amaravat River and five sub-canals of the RajaVaikal. The main source for water for irrigation for the agricultural land including that of the applicant is drawn only from 2 one of the sub-canals. As the respondents have caused several obstructions on the Thirumanilaiyur Rajavaikkal by commencing the construction of the bus stand by obliterating the canals depriving the supply of water to the agricultural lands of the applicant, the present application is being filed.
3. In the year 2009, the 7th respondent, Karur Municipality, introduced two resolutions relating to the construction of a new bus stand at Karur, as one of the measures to improve the transport facilities in Karur. One of the resolution, proposed to construction of bus stand at Sukkaliyoor Village in an extent of 17 acres. The other resolution was for the proposed bus stand at Thanimalai, Athur Village in the lands belonging to the temple.
4. The construction of the bus stand at Sukkaliyoor Village found favour with majority of the members and the same was communicated to the District Collector for passing further orders to commence the construction of the bus stand. However, for the reasons best known the said proposal was shelved and once again the 7th respondent invited offers from the land owners for donating the land free of costs. Certain owners of the lands to the extent of 12.14 acres in several survey numbers were willing to donate the land on certain conditions. One of the conditions is that the bus stand has to be constructed within a period of 05 years failing which the lands ought to be re-conveyed to the land owners.
5. The above said lands are situated adjacent to the land belonging to the applicant‟s lands which were classified as „Najai lands‟. It is stated there are 05 common water channels that bisect the above 3 said lands from the Rajavaikkal. The lands offered were accepted by the Municipal Corporation and the same was communicated to the Commissioner, Municipal Administration.
6. While so, several Writ Petitions were filed before the Hon‟ble High Court of Madras challenging the Government order dated 20.06.2013 issued by the 3rd respondent for construction of the bus stand. The said writ petitions were dismissed on 28.04.2014. There was also an Original Application filed before this Tribunal seeking necessary directions to the respondents to remove the obstructions raised on the above said lands and to restore the canal to its original position. This Tribunal also on 30.07.2014 dismissed the application on the ground that the applicant therein, was not an agriculturist or a party aggrieved.
7. In the meanwhile, construction of the bus stand was not yet commenced which constrained a Writ Petition W.P No. 3449 of 2017 being filed before the Hon‟ble High Court Madras at Madurai Bench seeking for a mandamus to consider his representation to establish the bus stand as per the G.O. Ms. No. 87 dated 20.06.2013. The said writ Petition was allowed by the Hon‟ble High Court on 28.02.2017 and directed the respondents therein to construct the bus stand within a period of two years. As, till the end of December, 2017 the construction of bus stand was not completed , the land owners who offered their lands demanded for re-conveyance and addressed a letter on 05.12.2017.
8. In the meanwhile, the writ petitioner in W.P. No. 3449 of 2017 filed a contempt petition before the Hon‟ble High Court in 4 Contempt Petition No. 345 of 2018 seeking to punish the respondents for their wilful disobedience of the order passed on 28.02.2017. In the contempt petition it was submitted that construction could not be completed due to paucity of funds. However, the Commissioner, who is the 7th respondent, submitted that the lands would not be suitable for construction of the bus stand. Nevertheless, undertook to ensure that the construction of the bus stand will be completed within two years in an alternate site. In the meanwhile, a review petition filed in W.P. NO. 3449 of 2017 was also dismissed by the Division Bench of the Hon‟ble High Court on 03.01.2019.
9. The Principal Secretary filed an affidavit in the said contempt petition on 08.01.2019 undertaking to construct a bus stand within a period of 02 years and 03 months. The 7th respondent, Commissioner, also had filed an affidavit on the same date i.e. on 08.01.2019 stating that the extent of land donated i.e. 12.14 acres may not be sufficient for the bus stand, hence the bus stand would be constructed on an alternative site with the larger extent either by obtaining loan or by way of Public Private Partnership.
10. Yet another affidavit was filed by the 7th respondent stating that there was suit with respect to the said lands in O.S. No. 222 of 2018 on the file of Principal Subordinate Court, Karur. However, based on the undertaking given by the 3rd respondent that the bus stand will be completed in a period of 24 months the contempt petition was closed on 11.01.2019. Thereafter, Rs.47,00,00,000/- (47 crores) was sanctioned by G.O. Ms. No. 65 dated 27.05.2019 for the construction of the bus stand at Thirumanilaiyur by way of 5 Public Private Partnership mode and on design, build, finance, Operate and Transfer basis. The said G.O also was put to challenge in W.P. No. 14556 of 2019 which is said to be pending. There was yet another W.P. No.22551 of 2019 filed by the owners of the land for re-conveyance for breach of conditions. Thereafter, a modification petition was filed by the Government stating that in view of the physical features of land, the 7th respondent did not proceed to construct the bus stand at the proposed site. The reason being that there are 05 common water channel bisecting the site into 04 parts which are marked as common water drainage channel in the village map and there is a common water pipeline running under the said property for irrigation purposes. The above said stand was once again reiterated by the 3rd respondent in Public Interest Litigation W.P No. 169859 of 2020 which was writ of mandamus forbearing the respondents from establishing the bus stand in Sy. No. 263 to 265 at Thoranakkaplatti Village.
11. In the counter affidavit, the 3rd respondent had categorically stated that the lands that were donated in Thirumanilayur consisted of water bodies and hence the same was not feasible for construction of a bus stand. The District Collector, who is the 6th respondent, also had stated that the subject lands in Thirumanilayurwere classified as „Nanjai A‟ wherein „A‟ refers to the Thirumanilayur Vaikal in the land records and the bus stand is situated at a distance of 446 meters from the River Amaravathi. Thirumanilaiyur Rajaviakkal is classified as minor irrigation canal and there are 05 sub-canals running through the various survey numbers making it clear that the proposed construction of the bus stand is right on the irrigation canals.
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12. In the meanwhile in February, 2021 due to damage caused to the agricultural lands on account of the closure of the sub-canals one Mrs. A. Sambooranathammal, who was the erstwhile owner of Sy. No. 109 and also the mother-in-law of the applicant, herein, filed the writ petition in W.P No. 3854 of 2021 for a mandamus directing the respondents to construct or dig or restore and maintain the field bothies in the lands comprised in Sy. Nos. 95, 97, 98, 113 to 123, 146 to 152, 243 and 246 to 248 situated in Thirumanilaiyur Village, Karur Taluk which were supplying waters of Amaravathi project through Thirumanilaiyur Rajavaikkal for the purpose of irrigation. The said writ petition was pending at the time of filing of this application. Therefore, the applicant contented that the construction of the karur bus stand is proposed on water bodies or in other words sub-canals and other pipelines for irrigation facilities for the surrounding agricultural lands including that of the applicant, despite the fact that the lands allotted for construction of the bus stand will be falling on the water channel area which would obliterate the free flow of water. The applicant further stated that despite several litigations pointed out as above, administrative sanction was accorded in G.O. MS. No. 20 dated 25.01.2022 for the construction of new bus stand at Karur. Pursuant to the above, tenders were called for construction of the bus stand at Karur at a cost of Rs. 40 Crores at the very same locality at Thirumanilaiyur Village, Karur obliterating the Rajavaikkal and the sub-canals. Hence the application is filed to declare the construction of the new bus stand at Thirumanilaiyur on the water canals as illegal, unauthorised and in violation of the Environment (Protection) Act, 1986 and to direct the respondents 7 to remove the obstructions created on the Thirumanilaiyur Rajavaikkal and restore the same to its original status and protect the water channels.
13. The Commissioner, Karur Municipality had filed his reply by way of an affidavit dated 03.01.2023. This respondent has stated that already a Writ Petition No. 18881 was filed for writ of certiorari relating to the construction of the Karur bus stand pursuant to the G.O Ms. No. 87 dated 20.06.2013 which was negatived. Similarly, O.A. No. 153 of 2014 on the file of this Tribunal to remove all the obstructions created across the Thirumanilaiyur Rajavaikkal and canals was also dismissed. Dismissal of the other connected writ petition also had upheld the G.O. Ms. No. 87, Municipal Administration and Water Supply Department dated 20.06.2013. The 7th respondent had further stated that the present application is also challenging the construction of the bus stand by reiterating the same issue. According to him, there is no cultivation neither agricultural or irrigation was carried out in the location for the past several years.
14. The Commissioner also has narrated the entire facts starting from resolution no. 2 dated 29.01.2009 of the Municipality from which the entire proceedings emanated. The Commissioner has stated that since water channels are traversing in minor portion of the said survey numbers mentioned in the resolution, another resolution was passed on 23.05.2013 omitting the properties in which the water channels are passing and those lands were substituted with other land in other survey numbers. It is categorically admitted by the Commissioner that though all the 8 disputes have reached the finality in favour of the Municipality, the Municipality could not establish the new bus stand by implementing G.O. Ms. NO. 87 dated 20.06.2013. Therefore, another Writ Petition No. 3449 of 2017 was filed wherein the Hon‟ble High Court by order dated 28.02.2017 directed the official respondents to construct a new bus stand by implementing the above referred G.O. Even thereafter no steps were taken by the official respondent which resulted in a contempt petition no. 345 of 2018. The said contempt petition was closed based on the undertaking given by the 3rd respondent, herein, the Secretary to the Government, Municipal Administration and Water Supply Department to complete the construction of bus stand within a period of 02 years. Going by the said undertaking given by the 3rd respondent, the bus stand ought to have been completed on or before January, 2021. Pursuant to the order passed in contempt petition, tender for preparation and approval of bid was called as per G.O. Ms. No. 65 dated 27.05.2019. Thereafter also there was no progress, hence yet another contempt petition No. (MD) 1352 of 2020 was filed which is said to be pending before the Hon‟ble High Court for adjudication.
15. It is also mentioned that the applicant‟s mother-in-law had filed W.P. No. 3854 of 2021 to issue suitable directions to the 6 th respondent, Commissioner, Karur Municipality to construct or dig, restore and maintain the field bothies in the lands comprised in Sy. Nos. 95, 97, 98, 113 to 123, 146 to 152, 243 and 246 to 248 situated in Thirumanilaiyur Village. The Commissioner has categorically stated that there were no agricultural activities carried out in above mentioned survey numbers for the past 9 several years and the water channels formed for irrigation purpose were abandoned and does not exists at all in the fields. The above facts have been field inspected and reported to the District Revenue Officers, Karur by the proceedings in Na.ka No. E1/12225/2015 dated 03.08.2022. The Commissioner has further stated Kavuru vaikkal is a structure prepared for the purpose of watering the field if and when agricultural activities are feasible. Moreover, it is stated in the report of the Revenue Divisional Officer that for the past several years no agricultural activities are found in the above lands and no water channels in any form is available on the land. The Commissioner also has specifically stated that the Judgment reported in 2015 5 Law weekly 397, T. K. Shanmugam Vs. State of Tamil Nadu & Ors., is not applicable to the facts of the present case.
16. There is yet another report filed by the 7th respondent, Commissioner, Karur Municipality. In this report, it is stated that the total extent of new bus stand at Thirumanilaiyur is 12.14 acres (49,209.337 sqm) in which the built up area comes around 9216.586 sqm. The planning approval was obtained for construction of building measuring to a total extent of 13991.16 sqm by the proceedings of the Assistant Director of Town and Country Planning, Trichy dated 14.08.2015. The Commissioner has specifically given an undertaking that there shall not be any further extension of bus stand in a phased manner. Therefore, the proposed project does not require prior Environmental Clearance as the constructed area is less than 20,000 sqm.
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17. From the above pleadings, the questions that arise for consideration are:
(i) Whether the construction of the new bus stand at Thirumanilaiyur Village, Karur District is on the sub-canals of the Rajavaikkal of Amaravathi River.
(ii) If so, whether the obstructions created on the Rajavaikkal to be restored enabling free flow of water in the canals.
18. The Learned Senior Counsel, Mr. Sricharan Rangarajan, appearing for the applicant would contend that the agricultural land of the applicant is in Sy. No. 109 of Thirumanilaiur Village to an extent of 1.10 acres classified as „Nanjai‟ which is within the radius of 450 meters from the Amaravathi River and the 05 sub-canals of the Rajavaikkal. The main sources of water supply in irrigation to these lands are from one of the sub-canals which is now obliterated due to the construction of the bus stand. The filling of various writ petitions, contempt petitions etc., are all admitted by both sides.
19. The Commissioner, Karur Municipality, who is the 7th respondent, had filed an affidavit as early as on 08.01.2019 explaining the reasons for delay in construction of the bus stand. Though the Commissioner was ready to construct the bus stand within a period of 02 years by implementing the G.O. Ms. No. 87 dated 20.06.2013, he had stated that the land would not be suitable for construction of a bus stand and that further steps would be taken to ensure that construction of the new bus stand will be taken up in an alternate site. The relevant portion is extracted as follows:
"I humbly submit that now we have ready to construct a new bus stand at Karur pursuant to the G.O. Ms. No. 87 dated 20.06.2013 11 within a period of two years, but the distance between the existed bus stand and proposed bus stand is only 1.3 kms difference, where the proposed bus stand is also yet to fall within the bus city. The proposed bus stand will also face the more or less same issue like heavy traffic, congestion, accidents etc., where the existed bus stand was now facing. So, the subject land was not suitable for the construction of proposed bus stand. Additionally an over bridge has to be constructed, if propose bus stand commences, for which extra fund will be needed. After careful examining real-time state of affairs, the subject land is not suitable place for construction of the proposed bus stand. The propose bus stand should be carried out of the city to control traffic congestion. Hence for the aforesaid reason the proposed bus stand is not suitable for construction at proposed land. We have identified several alternate places for establishing proposed bus stand, for which some amendment must be carried out in the above said G.O. Ms. No. 87 dated 20.06.2013. Therefore, I hereby undertake that the proposed bus stand will be established at Karur within in time period of two years."
20. The said aspect was supported by the affidavit filed by the Principal Secretary, who is the 2nd respondent, in Contempt Petition no. 345 of 2018 that the construction of the bus stand at Karur in the same location will be constructed within a period of 02 years. But additional affidavit was filed by the 3rd respondent dated 11.01.2019 stating that the bus stand will be constructed within a period of 24 months which was recorded by the Hon‟ble High Court and the Contempt Petition was closed. Thereafter vide G.O. Ms. No. 65 dated 27.05.2019 a sum of Rs. 47 crores were allotted towards the construction of new bus stand at Karur in the same location. Once again certain land owners preferred a W.P. No. 22551 of 2019 seeking re-conveyance of the lands in favour of the original land owners for breach of conditions. In the said Writ Petition in modification of the 7th respondent, Commissioner, Karur Municipality and also the 2nd respondent stating that there are 05 sub-canals bisecting the said lands into 04 parts which are marked as common water drainage channel in the village map and that there are common water pipeline running under the said property for irrigation purposes.
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21. The Deputy Secretary has also categorically stated in the affidavit that after passing the G.O. Ms. No. 65, the Karur Municipality officials inspected the proposed site and made a detailed report in physical and legal aspect. The Municipality received several representations along with the documents from the farmers and the same has been communicated to the Government stating that for the following reasons the Municipality was not in a position to follow the further process for construction of the bus stand at proposed site.
22. From the above it is evident that from 2012 the Karur Municipality has been struggling to construct the bus stand for various reasons including the objections from the farmers for obliterating the water channels. Therefore, it is not in dispute that 05 sub-canals are intercepting the approved site for the bus stand. When once it is found that the water channels are running through the land, whether the same can be disturbed and a bus stand be constructed denying the irrigation facility to the people like the applicant. There was also an objection that the W.P. No. 3854 of 2021 was filed by the erstwhile owner one Mrs. A. Sambooranathammal, who is also the mother-in-law of the applicant. Which is having an over lapping interest. However, Learned Senior Counsel appearing for the applicant stated that the said Writ Petition was dismissed as withdrawn by order dated 08.02.2023.
23. Therefore, as on date there is no over lapping interest and the above application is filed by the subsequent owner of the property. The applicant also stated that the paddy crops were being cultivated by the family of the applicant till the year 2011 and 13 thereafter, the donation of the surrounding lands for construction of the bus stand resulted in blockage of water channel and these lands started losing irrigation supply. So from the above, it is very evident that the water channels which were running across the site for construction of the bus stand if forcefully obliterated will deny the water supply to the farmers on the eastern side of the bus stand.
24. It is argued by the Learned Counsel representing the State that the applicant ceased to carry on his agricultural activities for more than a decade. However, the Learned Counsel appearing for the applicant submitted that the entire family could not do agriculture because of the uncertainty in the bus-stand being constructed. It is always been the endeavour of the State to protect the material resources like forest, tanks, ponds, hillocks, mountains etc., to maintain the ecological balance. In this regard, it would be appropriate to advert to Para-40 of the Judgement in 2015 5 Law weekly 397 which reads as follows:
"40. As noticed above, the Division Bench while adding a word of caution that they are not advocating a general principle to regularise all encroachments or encourage them observed that if the State Government takes a "conscious decision" to regularise certain encroachments and if the land is not required for any public purpose, the State Government would be well within the jurisdiction to do so. Thus, the question would be as to what is a "conscious decision" and what would be the manner in which the appropriate authority will come to a conclusion that the land is not required for public purpose. In our view a "conscious decision" in such cases with particular reference to encroachment in water bodies should be in consonance with the public trust reposed on the Government in respect of such lands (water bodies). The State being a trustee of these natural resources such as tanks, lakes etc., has to necessarily act consistent with the nature of such trust. The vesting of these lands and water bodies with the Government is to benefit the public and any attempt made by the Government to act in a manner derogatory to the object for which the land was vested, has to held to be illegal. The underlying fundamental principle being that such rights are public rights are in a higher pedestal than private rights. We may take a look of the matter from a different perspective. The Government has considered that water bodies, which have fallen into dis-use and have been encroached upon could be declared as not required for 14 any public purpose and the encroachments could be regularised. What the Government has failed to see is the cause as to why these water bodies, lakes, tanks have fallen into dis-use. If this aspect is analysed, it would come to light that in several cases the disuse was man-made and there appears to be a cartel, which systematically works with a view to grab Government property. In such scenario while taking a "conscious decision", the Government cannot ignore the fiduciary duty of care and responsibility cast upon it and simultaneously analyse as to why such dis-use has occurred. The plethora of decisions on the point elucidate the basic principle of the public trust doctrine when the water bodies vest with the Government, placing the Government in the capacity of a trustee, there is little option except to strictly adhere to the trust and faith reposed and if the Government has failed to protect these water bodies, it amounts to breach of the public trust and in such cases, the duty of the Government is more onerous to restore the land back to its original position and thereby restore the trust reposed on it. Therefore, we are not inclined to accept the proposition that merely because a water body has put to dis-use that by itself would be a good ground to regularise the encroachments."
The Public Trust Doctrine enforces limits and obligation on the Government agency and their administrative on behalf of all the people and especially the future generation.
25. In this regard, the Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, 1959 can also usefully be looked into. The said act is provide for the construction or digging of field bothies by the Government and by owners of land entitled to irrigation under certain irrigation works in the State of Tamil Nadu. The owners of the land are entitled to irrigation under certain irrigation works by these field bothies. Field bothies means small channels which run from outlets in the Government channels and which convey and distribute water to individual fields. The said act also prohibits any obstruction or interference with water flowing in field bothies. While hearing the matter, the Learned Counsel appearing for the State also wanted to file the mitigation measures to be taken for the above project as the same is obliterating the field bothies. 15
26. In this regard a joint inspection of the proposed bus stand site at Thirumanilaiyur dated 27.01.2023 but filed on 08.02.2023 may be usefully referred to. The District Collector had instructed the Executive Engineer, WRD, Amaravathi Basin Division, Dharapuram, Municipal Engineer, Karuar Corporation and Joint Director of Agriculture, Karur District to have a joint inspection and study the condition of the existing field bothies and to submit a feasibility report for the proposed change in alignment of field bothies along the boundaries of bus stand site to supply water for irrigation to the downstream side fields.
27. A Joint inspection was taken up on 25.01.2023. During the inspection, the Municipal Engineer, Karur Corporation has informed that in the proposed bus stand site there are field bothies (Kavur Vaikkal) are running in S.F. Nos. 247P, 248P, 116P, 114P, 113P, 152P, 151P, 149P, 148P and 146P. A sketch showing the field bothies which are running west to east direction inside the bus stand building is also furnished. It is stated that these field bothies are required to be changed for its alignment as had been indicated in the sketch to irrigate the fields in downstream of the field bothies.
28. The report reads further as follows:
"The Thirumanilaiyur Branch canal offtaking at LS 9/510 Km of Right Bank Canal. This Thirumanilaiyur Branch canal runs for a length of 1.550 Km and ayacut area commanded by this canal is 65.07.00 Ha (161.00 Acres) through 8 numbers of sluices. These field bothies, for which change in alignment is proposed, offtakes from sluice 6 and 7 of Thirumanilaiyur Branch canal.
The levels of the Thirumanilaiyur Branch canal and the field bothies in the bus stand site are taken by the Assistant Executive Engineer, WRD, Amaravathi Basin Sub Division-4, Karur Municipal Corporation, Karur and the feasibility report is analysed on 26.01.2023. The levels are taken at the sluice points, at the boundary points of the Bus stand and at the existing downstream side of field bothies. The temporary bench mark is taken as 16 100.000 m at Road culvert paravet wall at LS 650m in Thirumanilaiyur Branch canal. After taking the level, it is found that:
i) The sill level at Sluice No. 6 is 98.140 m.
ii) The bed level of the downstream field bothie is 97.410 m.
iii) The level difference observed is 0.730 m.
The proposed bed levels to be maintained in the proposed alignment of field bothies are mentioned as follows to supply the water to downstream side ayacut areas.
S. No. Location Proposed Bed level
of Sluice/ Field
Bothies (in m)
1. Sluice No. 6 of Thirumanilaiyur Branch canal 98.140
2. Sluice No. 7 of Thirumanilaiyur Branch canal 98.040
3. Tapping point of Field Bothie of Sluice No. 6 98.057
4. Tapping point of Field Bothie of Sluice No. 7 97.928
5. Linking point of Field Bothie of Sluice No. 7 97.638
6. Linking point of Field Bothie of Sluice No. 6 97.526
7. Existing downstream side Field Bothie from Sluice No. 6 97.410
8. Existing downstream side Field Bothie from Sluice No. 7 97.530
Due to the change in alignment of Field Bothies as proposed in the sketch enclosed (marked in green colour), there is a technical feasibility for supplying water to the downstream side areas through the proposd change in alignment of Field Bothies (kavur Vaikkal). Necessary approval from the Government may please be obtained for this change in alignment of Field Bothies."
29. The above joint report filed by the Department of WRD, Irrigation Department, Karur City Municipality Corporation have categorically admitted the existence of the field bothies and they are being obliterated for the purpose of the construction of the bus stand and that it would take necessary approval from the Government for the change in alignment of the field bothies. Section 7 of the Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, 1959 is as follows:
"7.Obstruction or interference with water flowing in field bothy prohibited in certain cases. - (1) No person shall, except in accordance with such rules as may be prescribed, do anything which obstructs or interferes or is likely to obstruct or interfere with the flow of water in any field bothy.
(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both.
30. The above section clearly indicates that without appropriate approval any obstruction or interference with the flow of water in field bothies cannot be done and there is also a penalty provision. 17
31. The joint inspection report has categorically stated that necessary approval from the Government may have to be obtained for this change in alignment of field bothies. Admittedly, the constructions have been started as had been seen from the photographs furnished by the 7th respondent without obtaining necessary approval as per Section 7 of the Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, 1959.
32. In this regard unless and otherwise the 7th respondent had obtained the necessary approval from the Government, the construction works should not have been commenced. It is only at the intervention of this Tribunal, they have now furnished a sketch suggesting the technical feasibility for supplying water to the downstream side areas through the proposed change in alignment of field bothies. Whether any such studies have been taken up, whether the change in alignment has already been given are all not known. In such circumstances, this Tribunal had been repeatedly holding that before such alignment being done, the main work should not be taken up.
33. However in this case being the re-alignment of field bothies, unless approval from the Government is obtained the construction of the bus stand cannot be proceeded with. Till the matter was reserved, no such approval was produced before this Tribunal for having obtained such an approval for change in field bothies. The Revenue standing orders of the State deals with water course poromboke and states that great care should be taken to preserve the margins of canals, channels and streams and transfer of such water course 18 can be ordered by Government in consultation with the Commissioner of Land Administration and Chief Engineer (WRD).
34. In such circumstances, the 7th respondent is directed to get appropriate approval for change in alignment for the field bothies as per the Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, 1959 which is also admitted by them in the joint report before proceeding further. Till such time such approval is obtained, the 7th respondent is directed to suspend the work in the areas where the field bothies/channels exist as well as areas where the diversion is proposed.
35. The Tamil Nadu Pollution Control Board is directed to assess the damages caused and the environmental impact for proceeding with construction without appropriate approval for changing the alignment of field bothies.
36. Knowing fully well that such approval is mandatory as has been admitted by all the respondents, the construction has been proceeded with. Hence, a penalty of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) is levied on the Karur Municipality payable to the Tamil Nadu Pollution Control Board.
37. In the result, the Original Application is disposed of on the following directions,
(i) Till such time the necessary approval from the Government is obtained, the 7th respondent is directed to suspend the work in the areas where the 19 field bothies/channels exist as well as areas where the diversion is proposed.
(ii) The penalty of sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) is levied on the Karur Municipality payable to the Tamil Nadu Pollution Control Board within a period of 2 (Two) months.
(iii) Upon such payment, the said amount should be used for remediation work, including development of greenbelt.
38. With the above directions, the Original Application is disposed of.
Sd/-
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) Sd/-
.......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.132/2022(SZ) 23rd March, 2023. (AM) 20