Madras High Court
V.B.R.Menon vs The State Of Tamil Nadu on 11 October, 2016
Author: M.Venugopal
Bench: M.Venugopal, S.Vaidyanathan
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 27.03.2019
Pronounced on: 29.04.2019
Coram
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
AND
THE HONOURABLE Mr. JUSTICE S.VAIDYANATHAN
W.P.13648 of 2016
V.B.R.Menon ... Petitioner
-vs-
1. The State of Tamil Nadu,
Rep. by Chief Secretary,
Public Department,
Fort St.George, Secretariat,
Chennai-600 009.
2. The State of Tamil Nadu,
Rep. by Secretary,
Public Works Department,
Fort St.George, Secretariat,
Chennai-600 009.
3. The State of Tamil Nadu,
Rep. by Secretary,
Revenue Department,
Fort St.George, Secretariat,
Chennai-600 009.
4. The Commissioner of Land Administration,
Ezhilagam, Chepauk,
Chennai-600 05,
5. The Commissioner,
Corporation of Chennai,
Rippon Building, Chennai-600 003.
http://www.judis.nic.in
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6. The Chief Engineer,
Public Works Department,
Water Resources Organisation,
Ezhilagam, Chepauk,
Chennai-600 005. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
seeking for a direction to the respondents to institute appropriate Water
Management Systems based on standard specifications, modern technology
and GPS based instruments to achieve optimum utilization of all the water
bodies situated within the city of Chennai and its suburban areas to
guarantee no wastage of water into the sea, within a time frame to be
prescribed by this Hon'ble Court.
For Petitioner : Mr.V.B.R.Menon
Petitioner-in-Person
For R1 to R4 & R6 : Mrs.Narmadha Sampath
Addl. Advocate General
Asst. by Mr.S.N.Parthasarath
Govt. Advocate
For R5 : Mr.K.Soundararajan
*****
ORDER
M.VENUGOPAL,J., AND S.VAIDYANATHAN,J., “ No matter, how much rich you are, you cannot live without Air & Water.” - So goes the Adage This Court fervently opines that the present order may be an eye opener on the need to conserve water, as accumulation of wealth will be of no use for survival of our future generation, but it is only unpolluted Water and Fresh Air, which are essential to enjoy all the spheres of life. http://www.judis.nic.in 3 The Writ Petition, which was specifically posted before this Bench for hearing on the orders of the then Hon'ble Chief Justice, has been filed by way of Public Interest Litigation, seeking to direct the Respondents to institute appropriate Water Management Systems based on standard specifications, modern technology and GPS based instruments to achieve optimum utilization of all the water bodies situated within the City of Chennai and its Sub-Urban areas so as to ensure no wastage of water into the sea.
2. Heard the Petitioner-in-Person, the Learned Additional Advocate General, duly assisted by the Learned Government Advocate for R1 to R4 and R6 and the learned Standing Counsel for R5.
3. The facts, leading to filing of this Writ Petition, are as follows:
i) The Petitioner-in-Person (in short 'the Petitioner') has stated that several Writ Petitions, including W.P.No.39234 of 2015 are pending, in respect of an issue relating to flooding of the City, which had happened in the month of November / December, 2015 due to excess rain. The Petitioner has further stated that the main object in filing of this Writ petition is to implement the appropriate Water Management Systems http://www.judis.nic.in 4 through improvements in the maintenance and storage capacities, inter-
connectivity between the storage tanks, construction and regular maintenance of Channels and Canals as per Indian Standard Specifications and installation of suitable flood control equipments in the short term, as being done in other parts of the Country / World. In other words, the Petitioner has prayed for appropriate preventive measures to avoid a similar calamity, which had occurred in 2015 in future through improvement in systems, practices and monitoring, based on modern technology, which could substantially reduce the dependence on human responses.
ii) The Petitioner has insisted upon taking stringent actions against all the persons, who were negligent in taking prompt actions and for their dereliction of duties during the recent floods, which had devastated the entire Chennai City and Sub-Urban areas. It was submitted that it is the right time to bring in necessary changes to avoid recurrences of similar damages in future;
iii) The Petitioner has stated that he is the owner of some immovable properties, situated near to Chembarambakkam lake and the surrounding areas on the route of water flow upto Adayar river and has experienced similar problems of varying magnitudes during the previous years also due to rains and associated problems of lack of free flow and non-availibility of adequate storage of water in the above areas. He has also pointed out that http://www.judis.nic.in 5 a flood of more or less same magnitude had happened in the year 1985, which had forced even the then Chief Minister late M.G.Ramachandran to shift his residence from Ramapuram to a hotel at T.Nagar.
iv) It was submitted that on account of growth in the population, there was no provisions for ground water retention and the only solution to the problem is to introduce modern technology based “System-Driven” management techniques and practices with constant monitoring mechanism and less dependence on human skills and responses. It was further submitted that there are no defined routes for the flow of water at the outlets of discharge from the Lakes / Tanks, resulting in water flowing all around and flooding all the areas en-route at the time of discharges from the Lakes and every time, when the water is relesaed from Chembarambakkam lake into Adayar river, the entire area on its route, including the State Highway-133 gets flooded and causes suspension of traffic through the State Highway for weeks together;
v) It was also submitted that the problems exist even in the case of other rivers such, as Coovam, Kosasthalaiyar, etc., which runs through the city and the northern parts of Chennai. The condition of Buckingham Canal, which runs from Vijayawada upto Villupuram was meant to provide a buffer http://www.judis.nic.in 6 between the city areas and the sea and it is in a pathetic condition due to blockage and poor maintenance all around. It was pointed out that the construction of the Water Channels, the Canals and the City drainage Channels are not done as per the specifications prescribed by Indian Standard and Indian Road Congress, due to which, the flood waters at the time of heavy rains as well as during the discharge of excess water from the Lakes / Tanks are not controlled in an effective manner. It was also brought to the notice that proper water ways are not constructed as per the standard specifications and are not maintained properly, which results in shedding of more floods during rains. The non-maintenance of Water ways and non-usage of modern equipments are reasons for the floods and wastage of water in Chennai and surrounding areas. The computation of storage capacities of Lakes / Tanks and removal of rubbish and desilting can be done more effectively, accurately and in a transparent way by using modern testing equipments, such as GPS based total systems which are available in the market. The usage of above equipments and follow up actions can help to increase the storage capacities of existing Lakes & Tanks manifold.
vi) Further submission was that it is merely a misnomer to call the Adayar river and Coovam river as rivers, because those rivers have already http://www.judis.nic.in 7 lost its natural beauty and only carry the excess water from the various water tanks during rains and discharges to sea. The flow through these rivers (Canals) are controllable, unlike natural rivers, which carry water from large mountains with unpredictable flow patterns and terrains;
vii) It was the prediction of the Petitioner that the Chennai gets affected frequently on account of the floods from the above Canals (rivers), when compared to other parts of the World, as such natural calamities occur from sea or natural rivers, where no control of the quantity of flow can be exercised. Even in such cases, there are well established Water Flow Management and flood control systems which are being operated successfully in several parts of the Country as well as abroad, such as USA, Netherlands, China, etc. According to the petitioner, what is required is the awareness and knowledge of such Water Flow Management, including Flood Management systems and implementation of such systems with a mission to achieve the desired results;
viii) It was the submission of the Petitioner that non-utilization of available technologies for the maintenance and improvements of Water storage facilities is the primary cause of wastages of Water and cause of floods during rains in Chennai city and surrounding areas. Hence, conducive http://www.judis.nic.in 8 measure are required through short term and long term plans to achieve non-recurrence of a similar calamity in the next year, even if similar rains occur and for total avoidance of wastage of even a drop of water to the sea in the long run. The petitioner has voluntarily come forward to spend his time, resources and energy towards the above objective of solving the water management problems of Chennai and the surrounding areas, provided the Respondents extend necessary assistance in the form of sharing of relevant data and information related to the past years. It is not going to be a “Solo Effort” by the Petitioner as it would require participation and utilisation of the expertise and skill from the Academicians from IITs, the various research institutes on water management in the country and the knowledge and experience of persons, who had worked on the above subject previously, including retired Senior Officers of Tamil Nadu PWD (WRO). The Petitioner is also firm enough to achieve the total management of available water resources through improvements in the storage capacities, Canal and Channel systems and creation of additional buffer storages to meet the excess flows at the time of rains by incurring practically no additional expenditure from the state exchequer;
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ix) The Petitioner proposed to liquidate the large tracks of excess lands, which are classified as water bodies, but are having no utilisation and are in excess of requirements, such as irregular, huge side margins of running Channels and Canals which are classified as Government poramboke lands, as such liquidation will not hit by the principle of Public Trust Doctrine as prescribed under Article 21 of the Constitution of India. It was further proposed that by keeping the above excess, irregular and large areas of Canal and Channel side poramboke lands under the banned category, instead of promoting the public interest through beneficial utilisation of such lands is causing idling and wastage of usable landed properties and consequent denial of appropriate benefits to the public at large who are the beneficiaries under the 'Public Trust Doctrine'. Therefore, it was suggested to have a re-look at the above areas reserved as water bodies and to determine the exact areas required to be protected and subsequently to initiate actions for the beneficial usages / disposal of excess lands in accordance with law;
x) The Petitioner also stated that by unlocking the above stock of unwanted and excess lands, sufficient funds can be raised to fund the various projects, needed to augment and restore the water storage systems http://www.judis.nic.in 10 as well as for implementing appropriate water carrying systems to achieve the ultimate objective of “zero discharge” of water into the sea. It was argued that the amount of money being spent almost every year on flood relief and other relief works, due to excess rains and floods, should be more than sufficient to complete the above projects of permanent nature, which are necessary in the short term to prevent another similar experience in the future years. It was urged that immediate actionsto meet the short term plans need to be initiated in an urgent mode, as the rainy season is fast approaching;
xi) The Petitioner further stated that his objective is not to find out the omissions and commissions of various Authorities and Persons and to suggest punishments for their inaction and dereliction of duties, but to find out the ways and means, appropriate mechanisms, management systems and equipments by minimizing the manpower to the minimum. It was pleaded that punishing a few officials may not solve the problems permenantly, as it is very difficult to find more efficient and capable replacements. However, it is certainly necessary to impose punishments and actions on erring officials to instill fear among them to become more alert and careful in future.
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xii) The Petitioner urged for constitution of a “High Power Committee” so as to design, develop and improve the water management systems for the city of Chennai and suburbs, as no new technology or unknown theories are required to be discovered or developed. The said mission could be achieved by deploying a team of Engineering professionals and in the long run to achieve the objective of “Zero Discharge” to Sea , it would be necessary to construct additional Water storage facilities as buffer areas around the existing Lakes and Tanks, for which sufficient funds could be made available through disposal of excess and non-performing assets as stated earlier. It is necessary to have a buffer storage area around the Lakes / Tanks at the start of the Channel / Canals, which could take care of the transient inflows and outflows of water and better control over discharges from Lakes / Tanks. The buffer water storage areas could be built without incurring any expenditure, as the excavated soil from such buffer tank areas will meet the expenses required for excavation as well as for the building of the bunds around such buffer tanks. The Petitioner further stated that the construction of buffer tanks as above can help in keeping the original tanks in full capacity even at the time of the heavy rains, as the excess rain water could be regulated through the buffer tanks, to be built all around the lake. Such buffer tanks shall also help in improving the ground water levels in the respective localities. There are large tracts http://www.judis.nic.in 12 of lands already available around the Lakes and Tanks, which are classified as "Eri Poromboke" in the Village records could be used to form the buffer tanks at no extra cost.
xiii) The Petitioner further stated that in addition to the buffer tanks as proposed above, it is also necessary to have inter-connections between the various Lakes and Tanks through Channels of appropriate dimensions, so that the water levels at all the surrounding tanks can be controlled simultaneously in a uniform way. Construction of such Canals need to be done only as per the prescribed Indian Standard Specifications to guarantee long and trouble-free life. It is very much important that all such constructions shall be made only after the M.S.L. are found out for each and every water body. The Petitioner has represented that in the short term, it may be necessary to install flow measurement instruments at regular intervals in the rivers to measure the water levels as well as velocity of flows, which would give signals to the controlling station about the water levels as well as reductions in the cross section of flows due to blockages, deposits and encroachments. Suitable equipments are available in the market for installation at vulnerable points to prevent sideway flows and consequent flooding. Similarly, it is also possible to replace the bunds at the end of the rivers, which are provided to prevent reverse flow of water from http://www.judis.nic.in 13 sea backwards, by installing appropriate one-way water gates, which open only in one direction.
xiv) The main grounds canvassed by the Petitioner are that there is an urgent need to introduce better Water Management System to absorb the variations through better storage facilities for which large scope for improvements exists and that the so-called rivers, namely, Adayar river, Coovam River, Kosasthalaiyar river, etc., are actually large size Canals, which carry water from various Lakes and Tanks as well as ground water upto the sea. Hence, it is possible to regulate and control the above flows through appropriate controls on discharges from the storage points and constant monitoring. He has stated that it is the right time to take appropriate measures in two stages, namely, short term and long term. The short term measures shall be aimed at controlling and preventing floods and minimizing flow of water into the sea during next rainy season. This involves repair and restoration of available Channels, Canals, Lakes and Tanks to make them operational at the maximum capacities. It is also necessary to install necessary equipments to prevent side flow of water from the rivers at vulnerable points and free flow of water at the mouth joining the sea through installation of gate valves which open only in one direction and are readily available in the market.
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xv) It was reiterated that to achieve the final objective of “Zero Discharge” of water into the sea, it is necessary to build additional storage capacities, including buffer tanks around the existing tanks and also construction of sufficient inter-connecting Channels and Canals. The expenditure for the construction of new facilities can be met through disposal of unutilised and excess side margin lands of the Channels and Canals, which are not meant to store water and are lying presently as waste. As regards Lakes, Tanks, Ponds and Rivers, being water storage sources, it is necessary to restore all of them to the original capacities by freeing from the encroachments. It is also necessary to monitor and record the volumes of storage by using Total System and GPS based equipments which can detect the under water deposits quite accurately. Additional sources of storage of water can be built around the existing Lakes and Tanks in the large extents of “Eri Poramboke” lands as recorded in the Revenue records. Such buffer tanks shall be useful to regulate and maintain the water levels in the Lakes and Tanks and to achieve the object in a collective manner, the Petitioner has prayed for suitable directions in the Writ Petition.
4. A Status Report on behalf of the Public Works Department has been filed, wherein it is inter alia stated as under:
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i) After the devastation of the floods in the River Adyar in December, 2015, out of 10347 encroachments identified in Chennai District in and around Adyar, Koovam and Buckingham Canal, 4161 encroachments have been evicted and the entire Adyar River in Kancheepuram District has been desilted from LS.0m to 32500m with the estimated cost of Rs.6.18 Crores;
ii) The Rehabilitation and Restoration of Adyar River and Restoration of Tributaries of Adyar River to the original width as per Revenue records have been carried out for a total value of Rs.19 Crores and with the fund allotted under the Member of Parliament Local Area Development, works of the Sriperumbudur Constituency were carried out to strengthen the Adyar River bund at Manapakkam and Nandambakkam villaes for a value of Rs.50 lakhs in September and October, 2016 and the various works carried out in different villages were narrated in the report;
iii) It was stated that the Government has accorded Administrative sanction for 56 sub-projects at a cost of Rs.555.46 Crores to be implemented under Phase III of Restoration from Adyar Origin to Mouth through Chennai River Restoration Trust (CRRT), out of which, Rs.104.31 Crore has been allotted for Public Works Department. It was also stated that the works have been proposed for the restoration of the Adyar River with http://www.judis.nic.in 16 actual width, for strengthening the flood banks and for restoration of the river regime due to abnormal flash flood and consequent accretion and deposition;
iv) It was further stated that the Administrative Sanction of the Government was accorded for addressing the issues by widening the course to full width and also formation of banks at both sides with newly proposed Top Bund Level from the excavated earth from the places, where widening of river proposed. There are three major Waterways flowing through the Chennai city viz, Cooum & Adayar Rivers and Buckingham canal. Adayar and Cooum rivers have their natural origin, whereas Buckingham Canal is a man made canal, excavated exclusively for navigation. The canal excavation was started during 1806 as a famine relief in Madras Presidency and completed in 1836 during the British era. The canal starts from Peddaganjam in Andhra Pradesh and ends in Marakkanam Backwaters of Tamil Nadu for a length of 418 kms. In Tamil Nadu State, the canal runs between Pulicat to Marakkanam for 170kms. Since the year 1976, navigation has been abandoned, owing to severe cyclones which occurred during the past years which had caused considerable siltation, as a result of which, the canal has been used for alleviating floods in the Chennai City.
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v) It was also stated that the maximum flood carrying capacity of the Adayar River is around 72,000 cusecs and Cooum River is about 33,000 cusecs, whereas Buckingham canal is a tidal canal and its carrying capacity is grossly negligible. Due to rapid urbanization, the waterways in Chennai have become a prime target for encroachments and in view of revamping the waterways, the Government of Tamil Nadu in vide Go.(Ms). No117, Municipal Administration and Water Supply (MC-I) Department, dated 11.10.2016 constituted Chennai River Restoration Trust (hereinafter referred as CRRT) to rehabilitate the waterways in Chennai city with a comprehensive programme. The CRRT had undertaken strenuous efforts for restoration of the Cooum and Adayar rivers in Phase I & II respectively, which involves abatement of pollution, eviction of encroachments within the right of way, plugging of sewer in-falls, providing Interceptors & Diversion arrangements, modular sewage treatment plants, widening and deepening of waterways etc. Restoration of the Cooum River in Phase-I under the Chennai Rivers Restoration Trust has already been commenced in a full-fledged drive to the tune of Rs.93.57 Crores, followed by Restoration of Adayar River to the value of Rs.104.31 Crores. The Works in Adayar River will be commenced soon.
vi) It was narrated in the Status Report that as a measure of restoring the Rivers Adayar and Cooum, the eviction of encroachments are in progress http://www.judis.nic.in 18 on a priority basis and in the Report, the details of encroachments evicted and rehabilitated in Cooum and Adayar Rivers and Buckingham Canal have also been furnished. Further, a brief summary of encroachments in respect of Cooum River, Adayar river and Buckingham Canal has also been furnished below for ready reference, since the water bodies have been surveyed by the Survey Officials and the encroachments were also identified and that there is no laches in making the survey, identification of encroachments and eviction of the encroachments.
Sl.No. Waterway No. of No. of Balance to be
Encroachments Encroachments evicted
identified Evicted so far
1. Cooum River 13592 8962 4630
2. Adayar River 10347 4161 6186
3. Buckingham Canal 26300 408 25892
Total 50239 13531 36708
vii) It was further narrated that action plan to identify and remove encroachments has been worked out by the District collector, Chennai for 38 tanks in Chennai District maintained by Public Works Department and encroachments are identified in those tanks and action is being taken to remove and resettling the encroached families. It was stated that about 536 encroachments have been removed from Korattur tank in Chennai District and restored about 50 acres of water body poromboke land and http://www.judis.nic.in 19 resettlement of families was also done in coordination with TNSCB. It was also submitted that in order to restore the waterways in Chennai City, the Chief Secretary to Government of Tamil Nadu / Chairperson of CRRT conducts periodical review meetings for monitoring the progress of works. In pursuance to the orders passed by this Hon’ble Bench on 07.01.2019, the Chief Secretary to the Government of Tamil Nadu convened a meeting on 01.02.2019, wherein eviction of encroachments in Buckingham Canal has been reviewed as a special case on priority;
viii) It was further stated that the Tamil Nadu Slum Clearance Board (TNSCB), in their Letter No. SCB/SP/48/2018/Dated 06.02.2019 addressed to the PWD/WRD has come up with an implementation schedule for Rehabilitation & Resettlement of Slum families squatting on the waterways of Adayar, Cooum and Buckingham canal. The TNSCB in co-ordination with the CRRT, so far 14,400 families were rehabilitated and the available housing units for immediate occupation with TNSCB is 2644 Nos. The approved AHP (Affordable Housing Project) units in Chennai District under PMAY are 29375 Nos., which are under various stages of construction and expected to be completed by 2020-2021. For the remaining 24,849 families, lands are being identified within Chennai Metropolitan Area and in the outskirts of Chennai. It was is also submitted by TNSCB that the cost of http://www.judis.nic.in 20 construction is shared by the Government of India & Government of Tamil Nadu grant and 10% from beneficiary contribution (Rs.1.5Lakh), which is now being given by CRRT to TNSCB. Further, it has been proposed to rehabilitate around 38,000 families from Buckingham canal and other water bodies for which world Bank has agreed for funding the projects in Chennai;
ix) It was also stated in the Report that the TNSCB has prioritized the implementation of resettlement and rehabilitation process for evicting the remaining encroachers along the major waterways as below;
a) Ready for the occupation units (2644 Nos) can be utilized for rehabilitation of slum families along the waterways;
b) Approved AHP projects (29375 Nos) are being expedited, completed and allotted as and when the construction is completed. The maximum time period will be 2019-2021;
c) Lands have to be identified for constructing tenements for accommodating the remaining families (24,849 Nos) along the waterways and construction of housing units to be taken up. Time period will be 2020- 2022;
d) Funding sources, such as World Bank and other needs to be finalized to utilize the fund along with the Government of India and State http://www.judis.nic.in 21 Government grant. Time period will be 2019-2020.
x) It was reiterated in the Report by the TNSCB that the Housing and Urban Development Department is also engaging with Asian Development Bank for construction of additional houses in the State, which are likely to be finalized soon. In view of the above implementation schedule of TNSCB, all the slum families along the waterways are proposed to be rehabilitated within a time period of four years (2019-2022) in different phases. It was further stipulated that only 2644 Nos. of tenements are available right now for occupation, which is inadequate for rehabilitating the slums of Buckingham canal. The TNSCB has proposed to rehabilitate the slum dwellers along the Buckingham canal on priority with the maximum time period of 2 years (2019-21) based on the fact that the approved AHP projects (29375 Nos) are being expedited, completed and allotted as and when the construction is completed. In the mean time, PWD/WRD would expedite the demarcation of boundaries of South (24kms), Central (7kms) and North Buckingham Canal (17kms), conducting Bio-metric survey to the slum dwellers and will be completed within the period of 2 years in such a manner that a period of 8 months of each for 3 segments of South, Central and North Buckingham canal will be programmed to complete the same. Once these procedures are expedited, eviction of slums will be done on a war footing manner and rehabilitated to the newly constructed tenements, http://www.judis.nic.in 22 which are proposed to be ready for occupation after 2 years.
xi) It was assured that the Government will take all effective steps to evict and rehabilitate in a time bound manner and hence the performance guarantee need not be imposed, as it is being a Welfare State and being a ‘Welfare State’, the State has the onus to look into all aspects in a holistic manner and onerous responsibility lies with the State Government in the matter of cleaning and restoring the rivers and evicting the encroachments. In the report, further time was sought to rehabilitate and restore the Chennai waterways. It was brought to our notice that the Government recently issued Government Orders to restore the capacity of the four Chennai City reservoirs, namely, Redhills Tank, Sathyamoorthy Sagar Poondi, Chembarambakkam Tank and Cholavaram Tank by desilting in Revenue model by selling excavated earth, due to which, the combined capacity of the said four reservoirs will be increased by about 1.904 TMC (Thousand Million Cubic feet). The work of desilting just commenced in three reservoirs and will be commenced shortly in Sathyamoorthy sagar. Thus, the Contesting Respondents prayed for suitable orders by taking on record the above Status Report, as deemed fit in the circumstances of the case.
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5. It was strenuously contended by the Petitioner, who appeared in- person that the 2nd Respondent had relied on the false / mischievous allegations by the District Collector, Kancheepuram to portray as if the Petitioner is an encroacher of Water Channel lands in S.No.456 of Kovur Village. It was the Petitioner, who brought the malicious and deplorable conduct of the District Collector, Kancheepuram to the attention of this Hon’ble Court through an affidavit filed by him in W.M.P.No.12748 of 2016 in W.P.No.5076 of 2016. The Hon'ble First Bench of this Court, finding no merit or substance in the allegations raised by the District Collector, Kancheepuram against the Petitioner, had set aside the order by judgment dated 18.01.2017 made in W.P.No.27392 of 2016.
6. It was further submitted that the Petitioner had filed yet another Writ Petition in W.P.No.13011 of 2016, wherein this Hon’ble Court had passed an order dated 20.01.2017 to conduct an independent survey of the entire Water Channel lands by engaging the services of IIT, Madras and therefore, the survey results will only expose the hollowness and duplicity of the allegations of encroachments raised by the 2nd Respondent in this regard against Petitioner. The allegations, levelled against the Petitioner of http://www.judis.nic.in 24 having a hidden agenda to protect some portions of alleged encroachments, have been made with a deceptive and misleading mindset, as the 2nd Respondent was a contesting Party, having full knowledge about the falsity of allegations raised against him.
7. It was main argument of the Petitioner that the right to water has been recognized as a fundamental right under Article 21 of the Constitution of India and therfore, it is incumbent upon the Respondents to protect, preserve and maintain all types of Water bodies, Waterways etc., to achieve optimum utilization and conservation of water resources, as it has been predicted that water is going to become one of the most scarce resource in the universe and it shall have huge impact on the survival of mankind itself.
8. It was pleaded by the Petitioner that the most parts of Tamil Nadu are facing acute shortage of water and therefore, the existing systems of storage and management of available Dams, Tanks, Lakes, Ponds, etc., have to be developed properly and efficiently. The Respondents have also accepted and implemented some of the suggestions of the Petitioner made during the Power Point Presentation on Water Management on 18.08.2016 at the request of the 2nd Respondent and in pursuance of the direction issued http://www.judis.nic.in 25 by this Court.
9. It was stated by the Petitioner that the 2nd Respondent has issued an order in G.O.No.117 dated 27.04.2017, wherein the farmers and other Villagers have been permitted to remove silt from approved Water bodies as per the procedure prescribed therein, which is a positive sign for increasing the storage capacities of small water bodies in Rural areas. It was reported that four major lakes of CMA are going to be desilted soon and the Government is expecting a net revenue of about Rs.700 Crores out of the sale of silt earth. Thus, it was stated by the Petitioner that the submissions made by the Petitioner, as recorded in Para No.2 of the order dated 20.10.2016, that the Government can earn substantial money from sale of earth out of desilting of Tanks and Lakes have been accepted by the Respondents now. It was further stated that the report of the Comptroller and Auditor General of India (Report No.4 of 2017) has recorded the fraud happened in desilting of Porur Lake, wherein hardly 10% of silt earth was found available for disposal after desilting by the Contractor, which could have happened either because the contracted quantity of desilting was not done or due to unreported sale of silt earth.
10. It was brought to attention of this Court the Government Order issued in G.O.(Ms) No.54 dated 10.03.2017 for the restoration of Small http://www.judis.nic.in 26 Water bodies with participatory approach under the name “Kudimaramath Thittam” and has allotted Rs.100 Crores for implementation of the scheme on pilot basis for improvement of the storage capacities of existing small size Water bodies. It was stated that the 5th Respondent has also taken some steps to restore Water bodies under its control and has put up about 200 Water bodies for adoption. It was reported that the State Government has been using Unmanned Aerial Vehicle (UAV) for tracing out the water courses in Cuddalore District and the said technology could be extended to other Districts also, so that the issues related to water courses can be attended. It was suggested by the Petitoner that a comprehensive action plan and target dates need to be drawn to bring about solution on the issues reported therein.
11. The Petitioner has strenuously contended that the Respondents have entrusted the entire problems associated with efficient management of all categories of Water bodies, Waterways and drainage systems to “Chennai River Restoration Trust (CRRT)”, a non-statutory body and by engaging the services of yet another Foreign Consultant to falsely visualize that the entire woes and miseries of Public due to mismanagement of Water bodies would disappear. It was contended that on going through the website http://www.judis.nic.in 27 of CRRT and based on the RTI reply dated 28.06.2016 received from CRRT, it was learnt that the issues raised by the Petitioner were not part of their ongoing project. Though the focus was onto restoration of three rivers and Buckingham Canal by way of removal of encroachments, no steps were taken for increasing the storage capacity of water.
12. It was pointed out that due to lack of man power in the Public Works Department, pursuant to existence of a large number of vacancies of Engineers exist at Top levels, the work got slow down and no actions have been taken to fill up those vacancies so far. There was no whisper on the side of the Respondents about the adequacy of existing methods for monitoring and maintenance of various categories of water bodies and the Respondents are also silent as to how the quantum of desilting and other routine maintenance works are being estimated and quantified without using the modern equipments, such as GPS, ETS, UTM, etc., without which, it would be highly unreliable.
13. It was contended that the 'opaqueness', 'Secrecy' and 'Arbitrary Decision' making processes and faulty implementation of various projects are not only causing repeated losses of lives and properties, but are also the major causes for breeding and protecting corrupt practices at all levels http://www.judis.nic.in 28 within PWD. The Petitioner has proposed to utilize the excess and irregular size “side margin lands” of Water Channels / Canals, which are neither suitable/ capable for storage nor required to accommodate the overflows of water, on a case-to-case basis and judiciously, by reiterating he has no personal interest in making this proposal and it has been made with the honest and sincere hope that it could help the Respondents to raise required funds to implement the various modern Water Management Systems in a time bound manner and if it is not desirable to alienate the “irregular and excess side margin lands” of Channels, the same could be put to alternate uses such as for the creation of additional storage of water, leasing out, etc., on “case - to- case” basis, so that idling of public assets could be avoided and some revenue or beneficial usage could be derived to the State, as the motive of keeping such lands vacant with no specific purpose and unprotected would only invite further encroachments, as it has been happening all along.
14. It was pointed out by the Petitioner that the Respondents have miserably failed to efficiently manage the Water Bodies for over 150 years, since the inception of PWD and therefore, it may be necessary to have a relook at the competence of the present top management of PWD [WRO] to perform their statutory duties. Transparent procedures and execution of http://www.judis.nic.in 29 works according to Standard ISI/IRC specifications are sine-qua-non to bring in accountability and to ensure successful functioning of the drainage and Canal systems in CMA. To optimize the contract works, it is absolutely necessary to carry out external audit of the works done by the contractors, as, at present, the execution and approval of contract bills are with the Field Level Engineers, which is the root cause for corruption and usage of substandard quality of works. It was further pointed out that the city drainage and canal systems continue to fail even during minor rains and cause floods and water logging without any respite. The repeated failures of the entire drainage and canal systems during rains and consequent flooding and water logging within the City and its extended areas do not need any further proof about the failures of the Respondents in managing the above systems.
15. It was pinpointed by the Petitioner that there was no justification in the claim made by the 5th respondent that the Storm Water Drains and Canals, which lie under their control are being properly maintained by periodical desilting and removal of waste and none of the Storm Water Drains or Canals are maintained according to the Standard Specifications or by taking the MSL values into account. Mixing of sewage and drainage lines and dumping of solid wastes by public are said to be the major reasons of http://www.judis.nic.in 30 blockages of storm water lines. It was stated that no preventive actions, such as changes in the designs, waste collection pits, etc., have been provided by the 5th Respondent.
16. It was specifically stated by the Petitioner that though huge amounts of funds are available under various schemes from the Government of India and other agencies to improve the conditions of the Storm Water Drains, Canals and other water bodies, the Respondents have collectively failed to utilize those funds effectively to produce significant results in any of the areas under their control and management. The most of the damages happening to the city and suburban Roads during the rains are due to non- compliance of standards as per IRC:SPO:42:2004 guidelines for Road drainage. The laying of roads are found to have been designed for yearly repairs without adhering to any prescribed quality standards.
17. The Petitioner has also listed out certain primary issues, which require immediate action by the Respondents 5 and 6 to achieve better management of the Water bodies, Waterways, drainage systems and Road conditions within CMA. The Petitioner has also insisted upon the need to use both Echo sounders and GPS/ETS equipments for the silt deposit studies and the remedial actions, so that transparency and accountability in silt http://www.judis.nic.in 31 removal operations from the various Water bodies and Waterways could be achieved. Hence, a direction was sought to the Respondents for undergoing training in respect of usage of modern equipments for desiling of water bodies from the Ocean Engineering Department of Indian Institute of Technology, Madras, where the Echo sounder and GPS / ETS equipments are extensively used for silt deposit studies on regular basis for various Government organizations. The size and model of equipments to be used shall certainly depend upon the quantum of works involved in desilting operations. The Petitioner has also extended the following suggestinos in response to the counter affidavits and Additional Affidavits filed by the Respondents 2, 5 and 6 to the effect that they need to prepare and submit / upload the dimensional drawings of all the Water bodies and Waterways in CMA area under their control showing the original dimensions as per Revenue / PWD records and present dimensions after fresh land and silt deposit survey operations; that the 3rd Respondent needs to complete the survey operations of all the Water bodies and Waterways in CMA as per the Tamil Nadu Protection of Tanks and Removals of Encroachment Act, 2007 and hand over copies of notices under Form Nos.1 and 2 to the 5th and 6th Respondents for taking appropriate proceedings in accordance with law so that evictions of encroachments and subsequent restoration of all the Water http://www.judis.nic.in 32 bodies in CMA could be completed; that tshe 6th Respondent needs to conduct bathymetric survey of large reservoirs and Lakes to determine the present extent of silt deposits and thereafter prepare a de-silting plan for each; that the Respondents 2, 5 and 6 shall procure adequate numbers of Echo sounders, GPS and ETS equipments for the exclusive use of Water Resources Department and Greater Chennai Corporation to conduct regular survey operations of Water bodies, Waterways and drainage systems within CMA area and the Respondents 2, 5 and 6 shall also set up separate and exclusive survey teams, in-house or outsourced for conducting regular surveys of Water bodies, waterways etc., and silt deposit studies in CMA without depending on the 3rd Respondent. On the whole, it was prayed for issuance of suitable directions to the respondents so as to save the Water Bodies in an effective manner as well as for storage of water for future generations.
18. Conversely, the Learned Additional Advocate General for R1 to R4 and R6 has contended that the Government has been taking earnest efforts in respect of eviction and rehabilitation of encroahers, apart from cleaning and restoration of rivers in a war footing manner. Since the arrangement of funds from the World Bank and other sources are in the midway, the Government has targeted to complete the entire process during 2019-2020. http://www.judis.nic.in 33 The Respondents have already commenced the work of demarcation of boundaries, by categorizing them into three segments, viz., South, Central and North Buckingham Canal for conducting Bio-metric survey of the slum dwellers and she has further contended that the Government has taken serious note of the cognizance of the menace of encroachments in the water bodies. Therefore, the Field Officers have been instructed suitably in this regard to evict the encroachments in the water bodies periodically.
19. It was the submission of the Learned Additional Advocate General that since there are already separate wings in PWD headed by the Chief Engineers for operation and maintenance as also for taking up model studies and Dam safety, there is no need to constitute yet another wing for regularization of water ways on account of encroachments. She has stated that the submission of the Petitioner-in-Person that the excess, irregular and large areas of Canal and Channel side poramboke lands under the banned categoryanals which are classified as Government poramboke lands, may be liquidated to the adjacent owners so that more income could be generated, cannot be accepted, as such marginal lands have been left for the purpose of protection and possible improvement in future years and in the event of liquidation, it would be very difficult to acquire the same back in case of emergency, as the same would end up in encountering several http://www.judis.nic.in 34 litigations. The Government is also striving hard to remove encroachments in the water bodies under the due process of law in terms of the Tamil Nadu Land Encroachment Act, 1905 and the Tamil Nadu Protection of Tank and Eviction of Encroachment Act, 2007.
20. It was the further contention of the Learned Additional Advocate General that after the recent calamity, the Government has been taking conducive measures for strengthening and restoration of rivers and waterways and also identified the encroachers in all areas for resettling in the tenements constructed by the Slum Clearance Board. It was submitted that the Government is also keen in preserving water bodies and removal of encroachments then and there and has been working on it. Since it requires coordination between several Departments and generation of funds, it was prayed that instead of imposition of performance guarantee on the State, being a Welfare State, this Court may consider the grant sufficient time to complete the entire task in letter and spirit.
21. The Learned Standing Counsel for the 5th Respondent / Chennai Corporation, while reiterating the submission made by the Learned Additional Advocate General, has stated that after 2015 flood, the slum http://www.judis.nic.in 35 dwellers, who lost their belongings, have consented to move to other tenements under Resettlement Schemes. It was further stated that the details of families living within the Cooum River boundary are being collected by way of enumeration and bio-metric survey under For-2, by following the due process of law. It was assessed that around 14257 slum families have encroached upon the banks of Cooum River and they were relocatd in order to carry out the Eco Restoration of Cooum River. Thus, it was contended that the Chennai Corporation has been in constant touch with PWD and Slum Clearance Board to achieve the goal.
22. Heard the Petitioner-in-Person, the Learned Additional Advocate General appearing for R1 to R4 and R6 and the Learned Standing Counsel for R5.
23. According to the great Tamil Poet, Tiruvalluvar, "ePh;,d;W mikahJ cybfdpd; ahh;ahh;f;Fk;
thd; ,d;W mikahJ xGf;F" / Fws;/20 .
[ePh; ,y;iy vd;why; cyfk; ,y;iy/ ahUf;Fk; thd; ,y;iynay;
xGf;fk; ,y;iy] In other words, "World cannot survive without water and morality cannot exist without rains". What the Poet had uttered 2000 years ago has almost become true now and the entire human community is struggling for water. http://www.judis.nic.in 36 Our country had already witnessed two revolutions, namely, green for agriculture and white revolution for milk production and there may be a chance for another colourless revolution for water. The third world war is at our gate and the water may be the starting point for the War, as NASA's Satellite data revealed that 21 of the world’s 37 large aquifers are severely water-stressed and that this crisis is likely to worsen. If we do not do something about this crisis and if we do not wake up now, there will be an un-awakened and permanent sleep at the earliest point of time for all and we will not leave water for our younger generation.
24. Water is essential part of Life and this world. It is a fact that Earth consist of 70% water Body but only 4% of water is Drinkable rest is Oceans with salty water. In many Countries, People waste millions of gallons Drinking water everyday and due to thi,s many people living in other part of the country did not get enough Water to drink. Not only Humans, but also Animals are dying due to lack of Water for Drink specially in Summer. Government need to take some initiative to spread awareness regarding Importance of water and need to start water conservation programs in villages and cities where people are wasting water more and more. Water is not only praised for its life providing and sustaining properties, but it is essential in day to-day's life and water is also associated with people's http://www.judis.nic.in 37 sentiments and their Religions. The preservation of water is insisted upon almost in all Religions. Sankrit slogan states, "prtuvyAm threeni ratnAni jalam annam subhashitam", meaning that there are only three jewels in this world, Water, Food and Good Words] - one speaks good word only, when one eats food and we know that without water there is no food. In Islam, God has instructed humankind not to waste water, through a verse, “O Children of Adam! Eat and drink but waste not by excess, for God loveth not the wasters” (The Holy Quran 7:31).
25. According to the scientific research, two thirds of the earth's surface is covered by water, but still we are struggling to get water on account of our lethargic attitude in its conservation. No one can deny in the World that water is one of the prime elements responsible for life on earth and water circulates through the land just, as it does through the human body, transporting, dissolving, replenishing nutrients and organic matter, while carrying away waste material. Water has been used since antiquity as a symbol by which to express devotion and purity. Some cultures, like the ancient Greeks, went as far as to worship gods who were thought to live in and command the waters. Though we need not worship water as God, the ways and means should be found out to preserve it, as othewise, one day will come, when the water will be seen only in the Museum as monument by the Future Generation and the day is not far off for us to beg water from http://www.judis.nic.in 38 other States / Countries.
26. In India, a growing population, lack of adequate planning, crumbling infrastructure, indiscriminate drilling of borewells, large-scale consumption of water, encroachments on water bodies and illegal constructions are the root cause for water scarcity and unless drastic measures are taken to minimize water usage, the day may not be far off, when the Government / authorities will be forced to ration water supply in cities and there may be a legislation for rationing of water, so also oxygen on account of cutting of several trees. It was noticed in many places that bore-wells are dug by the residents on streets instead of digging within their respective areas and therefore, the Local Bodies must ensure that sufficient space is allotted for storage of rain water, digging bore-wells, etc., at the time of giving planning permission.
27. After independence in 1965, Singapore, an Island had started concentrating in the work on rainwater collection with big projects in catchment areas and currently the City gets 20% of its water from rainwater collected in reservoirs and catchments. It was also learnt that two-thirds of Singapore's surface area is classified as protected drainage basins, which facilitates the collection of rainwater. The City has 19 fresh water reservoirs, 9 water treatment plants and 17 reservoirs for purified water. http://www.judis.nic.in 39 Singapore is regarded as one of the pioneers of this relatively new technology and the construction of more dams with new techniques not only provides the city with fresh water, but also protects against flooding. Similarly, lakes and reservoirs are important sources of water in Malaysia and have multi purpose functions, which formed a part of storage basins for municipal and industrial water supply, agriculture and hydro-power. Likewise, groundwater is a significant source of total water supply in the United States and is the source of approximately 25 percent of the drinking water. Major cities such as San Antonio, Texas, and Tucson, Arizona, are completely dependent on groundwater for drinking water supplies. However, a click at the Social Media unfolds the truth that there are 116 Dams across the State of Tamil Nadu and after 1993, except construction of 5 to 6 Dams, no Government had taken steps to construct Dams.
28. India, Peninsula, got independence from British 71 years ago and even though they had done considerable damage to our Country, they were conscious enough not to disturb the five elements, namely, Space, Air, Fire, Water and Earth and after independence, we are wholly responsible for spoiling these five natural elements. Have we ever realize as to who is really responsible for polluting water? According to Report Nos.4 and 8 of http://www.judis.nic.in 40 2017 of the Comptroller and Auditor General of India, the Government Officials are mainly responsible for the same, as they allowed encroachments on water bodies and the illegal constructions to grow like mushroom. According to records of the Water Resources Department (WRD), the area of 19 major lakes has been shrunk from a total of 1,130 hectars to nearly 645 hectares and hence reduced its storage capacity and some two decades ago IIT Madras estimated that about 650 waterbodies existed in the Chennai region and more than half of them were located in South of River Adyar. At present, only a fraction of them exists and most of the waterbodies within the city have vanished. All these menace had happened on account of encroachments on Water bodies, Water ways, Water Courses and Drainage Channels and the Government have also not shown much interest in preservation of water bodies for the purpose of vote bank. This Court, by order dated 06.08.2014 in the case of R.Lakshmanan vs. The Government of Tamil Nadu, Chennai and others [W.P.(MD) No.1496 of 2014], while issuing the following directions, categorically held that the Authorities in the Public Works Department are bound to save the water bodies and clear encroachments the water:
“(i) The Government shall issue appropriate directions which are mandatory in nature, to all the local bodies, including the Corporations, Municipalities and Panchayats, not to grant planning permission for any construction that is put up in a water body.
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(ii) The Local Planning Authorities as well as the Metropolitan Development Authorities shall also be directed by the Government not to grant approval for any layout or building plan, if the land concerned, is located either in part or in whole, in a water body.
(iii) The Government may also contemplate issuing an order under the Tamil Nadu Town and Country Planning Act to the effect that any application for building plan or for approval of a layout should be accompanied by a certificate of the Revenue Authority that no part of the land is located in a water body. The persons issuing such certificates, should be held responsible for any wrong information provided in the certificate.
(iv) The preservation and protection of the water bodies, already undertaken by the Department, shall be completed within a period of one year.
(v) No Civil Court shall be competent to grant any interim protection order, restraining any local body or Revenue Department from evicting a person from a water body.” Rule 15(38) (ii) of the Revenue Standing Orders (Vol.I) stipulates that great care should be taken to preserve the margins of canals, channels and streams. The transfer and assignments of such water course source porambokes can be ordered only by the Government in consultation with the Commissioner of Land Administration and the Chief Engineer (PWD). It further states that the Government may, in the public interest, alienate any part of the tank poramboke land, which is under the control of Public Works Department without interfering with storate capacity and water quality.
But, in reality, the PWD Officials do not bother about the said Standing Order on the reasoning that there is corruption in all levels and money flows http://www.judis.nic.in 42 much faster than water. It does mean that the PWD Officials alone are responsible for such laxity and the Officials of Corporation, CMDA, Municipal Administration, etc., are also equally responsible for it on account of poor administration, coordination and corruption. It is pertinent to mention here that the Madurai Bench of Madras High Court itself is standing on a water body and a huge lake called as Ulaganeri once has fallen into disuse.
29. Though there is an Act called, 'The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007' (Act 8 of 2007) for checking and eradication of the encroachment, eviction of encroachment in tanks which are under the control and management of Public Works Department, the Officials convert the said Act a meaningless one, as they are hand in glove with the violators. In fact, the Comptroller and Auditor General of India, in his Report No.4 of 2017 had strongly recommended for framing stringent laws to fix responsibility on the officials responsible for non- enforcement of the provisions of the said Act in identifying and eviction of encroachments of any nature. It was also recommended that CMDA should stop issuing conditional approvals for layouts and buildings along water bodies.
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30. It is pertinent to note that the First Bench of this Court (S.K.Kaul,C.J., and R.Mahadevan,J.) in Contempt Petition No.1769 of 2015 and Contempt Petition No.2166 of 2015 (Suo motu), while dealing with a matter pertaining to demolition of the violated portions of a building and decimation of the unauthorised constructions, held as follows:
''4. We have also perused the report of the Commissioner, who is present in Court. We have impressed upon him the importance of ensuring that there is atleast no continuing unauthorised construction by issuing stop work notices immediately when such unauthorised construction is detected rather than waiting for comparison of the plans. We have also emphasised the importance of:
(a) Checking the buildings from the basement, ground floor onwards, so that the set backs are adhered to;
(b) Ensure that the on-going construction complies with the norms;
(c) The delinquent officers are brought to book not by mere censure, stoppage of increment, but by more severe consequences like compulsory retirement and dismissal from service. We say so, as despite, mammoth amount of unauthorised construction, we are informed that not a single person has suffered the punishment of dismissal from service or even compulsory retirement atleast for the last five years.
(d) Not to let any unnecessary interference with his work by the persons, who have nothing to do with his job and that he should be able to do his task without fear or favour, for which necessary Court protection is available.” http://www.judis.nic.in 44
31. The Audit Reports of the Controller and Audit General of India further state that management of water bodies is vital for providing quality water for human consumption and such management includes creation of water storage facilities, maintenance of the length and width of water bodies and keeping water courses free from encroachments and disuse. It was further stated that most of the engineering works have been carried out by PWD (WRO) without following the standard specifications and transparent procedures, which had caused huge loss to the mankind.
32. It is appropriate to state here that most of the Gulf Countries are surrounded by deserts and the source of fresh water in many Gulf countries is desalination of seawater, which is very costly and the influx of oil wealth during mid 70's and 80's raised the standard of living considerably resulting in increased demands for fresh water. The Policy-Makers have adopted certain strategies for appropriate water conservation, which are Public awareness on water conservation, Metering and pricing at appropriate rates and the use of water saving devices and leak detection and prevention and Artificial recharge and storage of fresh water and treated wastewater.
Water is highly subsidised by the Government and most of the income derived from oil wealth is spent for conservation of water. As stated already, the day is not far off, when we people will be forced to opt for the http://www.judis.nic.in 45 expensive desalianation programme for getting drinking water and whether the Government will subsidise for such desalianation, will be a million dollar question?. Recently, a Division Bench of Madurai Bench of Madras High Court directed the State to find out the possibility of generating rain by way of modern methods like ‘cloud seeding’ so as to tackle drinking water scarcity in coastal regions by engaging corporate companies as a Corporate Social Responsibility exercise. Even this exercise may not long last, if implemented, unless there are methodology to preserve water
33. It is often said that Democracy is the Government of the people, by the people and for the people and the said principle has been changed to mean that "the Government is off the people, to buy the people (during election) and far the people". The State Government, represented by so- called Politicians, in the guise of removing encroachments, has been giving assurance of providing alternate accommodation to the encroachers / violators in order to retain their vote bank and the approach of the Government make the encroachers think that if they encroach the Government land illegally, they will get a free accommodation somewhere. Though the Tamil Nadu Land Encroachment Act, 1905 stipulates continous monitoring of occupation of Governments lands, lack of time action in preventing encroachment, failures on the part of public authorities and http://www.judis.nic.in 46 local bodies to clear illegal encroachments have contributed much to the blocking of waterways. Regulation 7(2) of Development Regulations (DR) clearly specifies that approval should not be accorded without ameliorative measures, if CMDA considered the site to be near to a water body / course, likely to be inundated with no possibility of proper drinage arrangement, in case of filled up tank or low lying and like to be affected by dampness owing to the sub-soil water. It is painful to note that all these Regulations are only on the paper and the Authorities Concerned have not taken any serious step to implement the same.
34. It seems that the Government is also encouraging illegal encroachments and unauthorized constructions, as a close reading of the Report No.8 of 2017 of the Comptroller and Auditor General of India would reveal that the Corporation is solely responsible for such encroachments in all places and in the report, it was stated as under:
“Rampant encroachment of road margins in Chennai, with an average of 3.4 incidences of encroachments per kilometre of road length, went largely unchecked due to inaction on the part of Greater Chennai Corporation.
Encroachments on water bodies accounted for 49 per cent of the total objectionable encroachments. Jurisdictional issues and lack of coordination between Revenue and Water Resources Departments contributed to the rise in encroachments on water bodies.” http://www.judis.nic.in 47
35. Though the Hon'ble Supreme Court has time and again reiterated that encroachments should be curtailed with iron hand, no iota of interest or indulgence has been shown by any Government to do such exercise so as to preserve water bodies. There is a famous quote that the difference between a Politician and a Statesman is that the politician thinks about the next election, while the Statesman think about the next generation. This quotation has been wrongly understood by our Politicians to the effect that they would be regarded as Statesmen, only if they take care of their family members on the presumption that they are only the next generation, leaving aside the welfare of other citizens of this country.
36. In many of the judgments, the Apex Court and this Court have been reiterating the importance of conservation of water, preservation of water bodies, water ways, channels, canals, etc., and it is disheartening to pinpoint that the Government is keen in preserving water in bottles in the form of liquor and selling it to the public through TASMAC for revenue generation. Consumption of water from the plastic water bottle is very harmful to the persons, who consume it. There is also ban on plastics
37. From the Status Report of the Respondents, it could be seen that some of the encroachments have been removed, but at the same time, the http://www.judis.nic.in 48 Officials should be vigilant that there will not be any further encroachment on the said place and scheme should be framed to suit that way. It is to be noted that but for the involvement and collusion of Officials, there cannot be any encroachment, for which they should be dismissed from service. Normally, in labour and service matters, the burden is on the employer to establish the guilt of an employee and the Service Rules should be amended in such a way that it is the bounden duty of the Government Servant to prove that he/she is not guilty. The Officials, who are in-charge of sanctioning of plan, registration of documents, removal of encroachments, etc. including IAS Officers, should be shown the doors. If they approach the appropriate Forum to prove that they are not actually guilty, they will know the waiting period of litigation. Unless the Officials and Staff of the Government are taken to task, the number of encroachments will never be minimized. Though no Courts can legislate or amend any Act, suggestion for amendment of the Act can be extended to suit the present context and to make the Law simpler.
38. On one such occasion, the Hon'ble Apex Court in the case of Krishna District Co-operative Marketing Society Limited vs. N.V.Purnachandra Rao, (1987) 4 SCC 99, had suggested for amendment of the provisions of the Industrial Disputes Act and the relevant paragraph is extracted hereunder:
http://www.judis.nic.in 49 "11. We may incidentally observe that the Central Act itself should be suitably amended making it possible to an individual workman to seek redress in an appropriate forum regarding illegal termination of service which may take the form of dismissal, discharge, retrenchment etc. or modification of punishment imposed in a domestic enquiry. An amendment of the Central Act introducing such provisions will make the law simpler and also will reduce the delay in the adjudication of industrial disputes. Many learned authors of books on industrial law have also been urging for such an amendment. The State Act in the instant case has to some extent met the above demand by enacting section 41 providing for a machinery for settling disputes arising out of termination of service which can be resorted to by an individual work- man. In this connection we have one more suggestion to make. The nation remembers with gratitude the services rendered by the former Labour Appellate Tribunal which was manned by some of our eminent Judges by evolving great legal principles in the field of labour law, in particular with regard to domestic enquiry, bonus, gratuity, fair wages, industrial adjudication etc. The Industrial Disputes (Appellate Tribunal) Act, 1950 which provided for an all-India appellate body with powers to hear appeals against the orders and awards of Industrial Tribunals and Labour Courts in India was repealed in haste. If it had continued by now the labour jurisprudence would have developed perhaps on much more satisfactory lines than what it is today. There is a great need today to revive and to bring into existence an all- India Labour Appellate Tribunal with powers to hear appeals against the decisions of all Labour Courts, Industrial Tribunals and even of authorities constituted under several labour laws enacted by the States so that a body of uniform and sound principles of Labour law may be evolved for the benefit of both industry and labour throughout India. Such an appellate authority can become a very efficient body on account of specialisation.
There is a demand for the revival of such an appellate body even from some workers' organisations. This suggestion is worth considering. All this we are saying because we sincerely feel that the Central Act passed forty years ago needs a second look and requires a comprehensive amendment." http://www.judis.nic.in 50
39. A Division Bench of Madurai Bench of Madras High Court in the case of K.K.Ramesh vs. State and others [W.P.(MD) No.22163 of 2018] decided on 28.01.2019 has issued interim directions to the Chief Secretary with respect to the removal of encroachments, “7. Be that as it may, the Comptroller and Auditor General of India in the Report No. 8 of 2017 for the year ended March, 2017, relating to the General and Social Sector in the Government of Tamil Nadu, has submitted a Report in terms of Article 151(2) of the Constitution of India, 1950. In the said Report, it has been highlighted that the system envisaged in the TNPTEE Act to protect the tanks from encroachments did not help in protecting the tanks as the Water Resources Department did not fix boundaries for all the water bodies through survey, which was the first step in prevention of encroachments and eviction of already existing encroachments. Having due regard to the fact that 49% of the total objectionable encroachments in the State were on water bodies, it has been recommended in that Report that inasmuch as the TNPTEE Act had inherent limitations as it did not cover encroachments on smaller irrigation tanks and Ooranis (traditional water bodies) created to harvest rain water for drinking and other purposes, the Government may consider bringing rivers, streams, tanks, ooranis, etc., under the purview of the TNPTEE Act and ensure a time bound survey of all water bodies. Further, in order to overcome the coordination issues between the Water Resources Department and the Revenue Department in surveying the water bodies, it has been expressed that the Government may consider creation of survey units in Water Resources Department Divisions / Circles, in line with similar survey units functioning in urban local bodies.
8.Despite the aforesaid Statutory Provisions, Court Directions and Report of the Constitutional Authorities, no tangible headway appears to have been made in the process of fully evicting the encroachers from their illegal occupation of the water bodies. As such, the situation has become imperative for this Court to take up the task of monitoring http://www.judis.nic.in 51 the eviction of the encroachers from the water bodies. As a first step in that regard, we issue the following directions:-
(i) The Chief Secretary to the Government of Tamil Nadu shall file a Report of action taken by the Government of Tamil Nadu on the recommendations for rectification of the shortcomings in the process of eviction of encroachments on water bodies indicated in the Report No. 8 of 2017 of the Comptroller and Auditor General of India for the year ended March, 2017, by 11.02.2019;
(ii) The Collectors of their respective Districts in the State shall prepare a list of lands identified as water bodies in their revenue records and send copies of the same to the Officers of the Registration Department, the Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), the Local Bodies and the District Election Officers in their respective Districts by 08.02.2019 and file an action taken report before this Court by 11.02.2019;
(iii) The Chief Secretary, Government of Tamil Nadu shall, after collecting necessary data from the concerned Departments and Collectors of the various Districts, file a Report showing the list of water bodies as found in the revenue records of the State by 11.02.2019;
(iv) No registering authority under the Registration Act, 1908, shall henceforth register any document in respect of any land which has been notified as water body in the revenue records of the State and the Inspector General of Registration, Government of Tamil Nadu shall issue necessary circular to all the Registration Officers in the State for ensuring compliance in this regard by 11.02.2019;
(v) No electricity connection shall henceforth be provided to any building in any land which has been notified as water body in the revenue records of the State and the Chairman-cum- Managing Director, http://www.judis.nic.in 52 TANGEDCO shall issue necessary circular to all its officers authorised to grant electricity connection for ensuring compliance in this regard by 11.02.2019;
vi) No water connection shall henceforth be provided to any building in any land which has been notified as water body in the revenue records of the State and and the Principal Secretaries of Municipal Administration Department and Rural Development and Panchayat Raj Department shall issue necessary circular to all the urban and rural local bodies in the State for ensuring compliance in this regard by 11.02.2019;
(vii) No approval shall henceforth be given for any construction of any building and no building shall be assessed for property tax, by any local body in any land which has been notified as water body in the revenue records of the State and the Principal Secretaries of Municipal Administration Department and Rural Development and Panchayat Raj Department shall issue necessary circular to all the urban and rural local bodies in the State for ensuring compliance in this regard by 11.02.2019;
(viii) No person shall henceforth be included in the voters list for the election, if the residence claimed by such person is in any land, which has been notified as water body in the revenue records of the State and the Chief Election Officer of the State shall issue necessary circular to all the authorities involved in that process in the State for ensuring compliance in this regard by 11.02.2019; and
(ix) The Report of the action taken by all the authorities indicated supra, shall be filed before the Registrar (Judicial) of this Court by 13.02.2019.
9. We are fortified in issuing these interim directions by the decisions of the Division Bench of this Court in Elephant G.Rajendran -vs- Chief Secretary (Order dated 09.09.2016 in W.P.No.219566 of 2015) and the Hon'ble http://www.judis.nic.in 53 Supreme Court of India in Sunil Kumar Kori -vs- Gopal Das Kabra (Order dated 27.09.2016 in Civil Appeal Nos. 9728 and 9729 of 2016). It is needless to add here that citizens, who have acted in violation of their fundamental duty under Article 51-A(g) of the Constitution of India, 1950, to protect and improve the natural environment including lakes and rivers, cannot be heard to complain of deprivation of any fundamental right till their purge from their unconstitutional acts.”
40. Subsequently, the Chief Electoral Officer (CEO), Tamil Nadu, Chennai / 7th Respondent in the above matter has filed W.M.P.(MD) No.2849 of 2019, seeking certain modification in the order dated 28.01.2019, in which, Clause 8(viii) of the operative portion of the order dated 28.01.2019 alone has been rescinded.
41. A cursory look at the Clause 8(viii) of the order dated 28.01.2019 unravels the fact that the Hon'ble Division Bench had specifically stated that henceforth, no person, residing in the land notified as water body shall be included in the voters' list and though the said clause has been annulled, the relevant provisions should be amended, curtailing such encroachers to be included in the voters' list in future, as the Dictionary meaning of the word “encroachment” is an act of intrusion into another person's property stealthily and therefore, encroachment can be termed as an act of criminal trespass into the another's property. According to Section 441 of the Indian http://www.judis.nic.in 54 Penal Code, such unauthorised entry is an offence, for which, a punishment of not less than three months with fine of five hundred rupees shall be imposed.
42. Similarly, Article 300-A of the Constitution of India stipulates that no person shall be deprived of his property save by authority of law and the State being a “person” responsible to save its properties, cannot be deprived of its right of property and any intruder is liable to be prosecuted under the provisions of the Land and Article 300-A of the Constitution of India empowers the State to initiate appropriate legal action against the encroachers.
43. It seems that the Government is concentrating only on 'Cooum' & 'Adayar Rivers' and 'Buckingham canal' without bothering about other areas and there should not be any partiality shown by the Government in carrying out welfare measures for the benefit of public at large. Therefore, the Government will have to allocate funds for cleaning and restoration of lakes, rivers, canal, etc., flowing in other parts of the State. The expenditure, number of staff deputed, number of days taken for work, etc., shall be available in website and such information should periodically be updated once in a week for the public / tax payers to know about the work http://www.judis.nic.in 55 done by the Government. When we, Judges, are getting water in yellowish colour now-a-days, the sufferings of the common men are inexplicable. The history says that owing to a heavy flood and flow of water on the streets in the year 1985, the then Chief Minister late M.G.Ramachandran was forced to shift his residence and stay in a hotel and if the history repeats, what will be the fate of Laymen?
44. It is saddening to note that there is no proper drainage system in Tamil Nadu, as most of the Canals are choked with degradable and non- degradable wastes dumped into it by residence and commercial establishments. There was a book pulished by Indian Roads Congress in the year 2013, enumerating the guidelines on urban drainage, according to which, constant steps should be taken for continous and constant removal of pollutants in the drainage system, by way of effective modernization of open tanks, parks nearby quarry pits. One of the precious gifts given by nature is water and though water is found every where, it is difficult to find pure water for our daily needs, on account of it being polluted by man and there is a lot of wastage clone by man in using water for various purposes. Even though there are scientific inventions everyday, no scientist will give solution for production of pure water as given by nature and once we are not capable of producing natural water, it should be conserved without any http://www.judis.nic.in 56 wastage. Recently, the Cape Town of South Africa, being the First Metropolitan city in the world ran out of water and the Officials therein have named the day as “Day Zero”. It is apposite to state here that on account of attack of animals, People feared to live in Forests. Now, it is people, who barbarically destroy not only Forests, but also natural resources, thereby converting the city as graveyard and making no difference between an animal and human being.
45. “An ounce of practice is worth more than tons of preaching”, said Mahatma Gandhi. The Government, before asking its Subject to save water, must ensure that its machinery and Officials are not wasting water. To be more precise, though the Government has been distributing water to the needy through Water Tankers, by the time the Tankers reach the destination, half of the water filled in the tank could have been wasted by way of leakage. It was learnt that only contaminated vehicles with tanks are being used for the purpose of supply of water to the poor and those vehicles are to be identified by the Government for the purpose of immediate replacement. Unmet expectations, poor policy management, increasing demands, migration and overexploitation are the major cause of water scarcity in urban communities and despite technological and funding enhancements, the strategies to improve supply have not successfully http://www.judis.nic.in 57 helped in creating waster security. Hence, the Government, instead of thinking about their vote bank, must give awareness to the public at large in preservation of water for themselves and also for their younger generations.
46. There is a general slogan that “Do not let the water run in the sink, our life is on the brink”. Keeping in the mind the above slogan, the Government should impart awareness among public in preservation of water and the following table will enumerate as to how Water is wasted in several places and the way to save it:
Wastage of Amount of Way to save Amount of
Water By Water Water / Alternate Water
required Method required
Flushing after 20 litres Use of bucket Only 6
toilet litres
Running Tap 5 litres Closed tap or Only 0.75
while Brushing Bucket litre
Teeth
Running Tap 5 litres Use of Mug Only 0.5
while Shaving litre
Shower during 100 litres Use of bucket Only 18
bathing litres
47. It was brought to the notice of this Court that the Water Resources Department have started the desilting programme of Red Hills, Poondi and Chembarambakkam for the first time after several decades and though those water bodies are said to have a combined capacity of 11,257 http://www.judis.nic.in 58 million cubic feet (mcft), owing to siltation during monsoon, they are able to store only 80% of water. Desilting is very important for any major component of any Lake Conservation Project now-a days and its main object is to increase the storage capacity and checking eutrophic conditions. Of course, there is no word called 'desilting' in any standard English dictionary and what we are doing in the name of 'desilting' is practically 'digging' or 'excavation' of lake bed. Increasing storage capacity by digging lake bed is the most costliest one, when compared to other methodologies. Desilting, if not done in a planned way, creates isolated pits of considerable size in the submergence area, which may have lower bottom levels than the main storage. Because of this isolation, water collected in these pits never reach to the main storage, resulting in seeping and evaporation.
48. A Hon'ble Division Bench of this Court, while dealing with the issue of removal of unauthorized developments in the case of M/s.Karur District, Vengamedu, Kongu Nagar Residents Welfare Association, Karu [W.P.(MD) No.2895 of 2011] dated 04.04.2016, had issued the following directions:
“27. Hence, the writ petition is disposed of with the following directions:
(i) A Committee comprising of a Joint Director of Town and Country Planning, nominated by the first respondent, a http://www.judis.nic.in 59 Revenue Divisional Officer nominated by the second respondent and an officer of the rank of Assistant Director of Survey and Land Records, nominated by the second respondent, is hereby constituted.
(ii) Within two weeks of receipt of a copy of this order, the first respondent shall nominate an officer of the rank of Director of Town and Country Planning, who has a track record as an officer of high integrity. Similarly, the second respondent District Collector shall also nominate an officer of the rank of Revenue Divisional Officer and an officer of the rank of Assistant Director of Survey and Land Records within two weeks of the receipt of the copy of this order.
(iii) The Committee so constituted shall take into possession, within two weeks of the constitution, all the records available in the offices of the respondents 1 to 3 or in the offices of any one of the Assistant Directors or Deputy Directors of Town and Country Planning, which relate to the layout in question.
(iv) Thereafter, the Committee shall conduct a local inspection of the lands in S.F.Nos. 135, 136, 137, 138, 140, 141, 146, 151, 152, 153, 154, 155 and 160 in Vengamedu region, Inam Karur Town, Karur District with the help of Town/Municipal Surveyors, Village Administrative Officers and Revenue Inspectors and submit a report.
(v) The report shall indicate
(a) the lands earmarked for public purposes as per the approved layout
(b) the details of lands sold by the promoters/original owners, from out of the lands earmarked for public purposes
(c) the details of persons, who have purchased the lands
(d) the details of buildings constructed at such lands along with an indication whether building plan approvals have been obtained or not http://www.judis.nic.in 60
(e) the details of the elected representatives of the third respondent Municipality, who have purchased lands in their own names or in the names of their close relatives and the details of construction put up by them
(vi) The report as indicated above shall be submitted by the Committee within a period of three months from the date of constitution of the Committee
(vii) Till the Committee submits its report, the concerned Sub-Registrar/District Registrar shall not allow registration of any documents relating to the lands in the above survey numbers, unless the Committee issues a no objection certificate that such a land does not form part of the land earmarked for public purposes
(viii) Till the Committee files its report, the Municipality shall not accord any building plan approval, on the land earmarked for public purposes, except with a no objection certificate issued by the Committee
(ix) Till the Committee submits its report, no electricity connection shall be given to the buildings that have come up recently on the lands earmarked for public purposes and
(x) The third respondent Municipality is also injuncted from granting regularization to unauthorized constructions and the constructions put up on the lands earmarked for public purposes.
There will be no order as to costs.
28. Post in the first week of August 2016 for submission of the report by the Committee.”
49. It is brought to our attention that in order to sustain the illegal constructions, post-facto approval of plan is taken and without there being http://www.judis.nic.in 61 any plan, by retaining the said plan, the existing illegal constructions are retained. There is no doubt true that it is open to anyone to seek for demolition and thereafter for construction by applying a fresh plan. But, it does not mean that the existing construction, which is in violation of the plan, can be retained. If no action is taken by the Officials of Corporations CMDA, etc., on the ground that a fresh plan has been obtained by the owner of the building, appropriate disciplinary action can be taken against the Officials, who can even be dismissed from service.
50. If there is any illegal construction on the land earmarked for public purpose and the same has been registered, the Sub-Registrar will be held responsible for registering the public place and a Criminal action can be initiated against a person, who has submitted the fabricated documents for loan, when the person has no title over the property, apart from taking action against the Sub-Registrar or any other Authority, who is responsible for registration of documents.
51. Unless stringent actions or conducive measures are taken, the day is not far off to fix the "Day Zero" in our State too, as that of 'Cape Town'. Though we have all resources in our State, lack of its proper utilisation, etc., led us to convert Fertile Lands into an impotent one by way of http://www.judis.nic.in 62 'Encroachment', Dumping of solid wastes, etc. Hence, with a view to preserve water bodies and water ways, etc., this Court is perforced to issue the following directions:
i) The Government is directed to constitute a Special Wing in the Public Works Department (in short 'the Wing') duly headed by the Chief Secretary as Chairman of the Wing;
ii) The Revenue Secretary, the Secretary, Public Works Department, the Commissioner of Land Administration, Chennai, the Commissioner, Corporation of Chennai, the Chief Engineer, PWD (WRO), Ezhilagam, Chepauk, the Chairman, Electricity Board, The Managing Director, TWAD Board, District Collectors, Police Officials in the cadre of Commissioner / Superintendent of Police, Tahsildars, Surveyors, Village Administrative Officers and an Officer from the respective Departments, like Revenue, Municipal Administration, Corporations, Electricity Board, TWAD Board, etc., in each District of Tamil Nadu shall be members of the Wing, exclusively for management of Water Bodies, Water Ways, Canal, Tanks, etc., throughout the State of Tamil Nadu and also for removal of encroachments thereon in association with Chennai River Restoration Trust;
iii) On such constitution, the Chairman of the Wing shall make http://www.judis.nic.in 63 working arrangement of the existing staff for this purpose and provide adequate staff support to the concerned Officials to achieve this herculean task of removal of encroachment on Water Bodies. The Chairman shall convene a meeting with other Members once in a month to review the action taken by the Members in their respective Districts in removal of encroachments on Water Bodies;
iv) The Wing shall conduct land surveys and prepare Form Nos. I and II prescribed under T.N.Protection of Tanks Act, 2007 with respect to all the Water bodies, Water ways, Water Courses and Drainage Channels, etc., by using advanced instruments, like GPS, ETS, etc. The said exercise of preparation of Forms has to be completed within a period of six months from the date of receipt of a copy of this order;
v) It is open to the Wing to evict all encroachments with the assistance of Police by citing this order and thereby, restore all the Water Bodies, Water Ways, Canal, etc throughout Tamil Nadu. If there is no proper assistance from the Police Officials, appropriate assistance can be taken from the Military Forces to remove the encroachment, as this Court is of the view that this could have been the first and best method instead of last resort and many of the Court orders are only on papers without proper http://www.judis.nic.in 64 implementation. Before starting eviction process, the Electricity connection should be disconnected forthwith. A copy of this order is to be sent to the Chairman, TNEB, Chennai so as to enable him to circulate it to the concerned EB Office in Tamil Nadu, as and when information is received about encrochment in any place much less in Water Body;
vi) The directions issued by this Court in W.P.(MD) No.1496 of 2014 dated 06.08.2014 (cited supra) shall be followed in letter and spirit;
vii) The Wing shall scrupulously follow the recommendations of the Comptroller and Auditor General of India made in Report Nos.4 and 8 of 2017 and also follow the “Guidelines on Urban Drainage” issued by the Indian Roads Congress;
viii) The Wing must periodically inspect the vehicles used by the PWD, Corporations, etc. throughout Tamil Nadu, by which Water is distributed to the needy and ensure that there is no leakage of water, as the Tankers have to supply water to the People and they are not expected to clean the road with water;
ix) The Wing must also ensure that there is no further encroachment and illegal constructions on the Water Bodies, Water Ways, Canal, Rivers, http://www.judis.nic.in 65 Tanks, etc.;
x) The Wing shall conduct enquiry on the orders passed by the then Secretary, H & U, prior to the present one and also call for records related to the said period for verification and in the event of any lapse / dereliction on his part, appropriate instructions/action may be given/taken to strip off from his post and also for withdrawal of his IAS. When the punishment is strict, then only the Officials will be more serious in discharging their official work out of fear;
xi) The Government shall fix the responsibility on the Chairman of the STF and his / her team, who are entrusted with the work of identifying, restoring and managing the Water Bodies, etc. and the Chairman must ensure the continuance of the eviction process as per the schedule and any negligence / lethargic attitude noticed shall be viewed seriously. The Government is entitled to take suitable disciplinary action against the members of the Wing, including the Chairman, in case of dereliction of duties and the Government should review their works prior to three months of the retirement of each Official in the team and ensure that they have discharged their works satisfactorily, failing which, the Officials may be placed under suspension and even dismissed from service for their misconduct, dereliction of duty, showing no devotion to work, lack of http://www.judis.nic.in 66 integrity so as to deprive their entire gratuity and terminal benefits under the head "moral turpitude". Whenever the Officer responsible for removal of natural resources is found to be hand in glove with the Violators, then his or her act would automatically come within the purview of moral turpitude;
xii) As held by this Court in Contempt Petition No.1087 of 2017 and Writ Petition No.24705 of 2017 dated 18.03.2019, the Government should think of amending Acts, such as the Tamil Nadu Town and Country Planning Act, 1971, District Municipalities Act and other Enactments that deal with the removal of illegal constructions and encroahments, to the effect that wherever buildings are constructed in violation of the plan, the charges, like electricity, property and water tax, etc., should be collected not less than 5 times (can be extended upto 10 times) at the rate applicable to commercial buildings even to residential houses, so that monies collected in that way could be utilised by the Government and the Government can avoid financial emergency. It is made clear that the enhancement of five times charge has to be borne by the person, who has encroached the area and in case tenants reside in the said area, the enhanced charge has to be paid by them and get it deducted from the monthly rent. After enquiry, if it is established that the owner of the property has not encroached the land, the amount recovered from him/her has to be refunded immediately;
http://www.judis.nic.in 67
xiii) The Wing shall submit a report to the Government once in three months with regard to the progress in works and a copy of the same shall be forwarded to the Registrar General of this Court. It is open to the Petitioner to obtain a copy of the report from the Registry of this Court for follow-up;
xiv) It is made clear that this Court cannot issue directions separately to each of the Department by impleading them as parties to the proceedings and therefore, this Order shall be quoted / made reference to the concerned Department, who are also responsible for removal of encroachments and illegal constructions;
xv) Of course, it is true that Courts extend a helping hand to the violators for non-adherence of the procedures as adumbrated under the relevant provisions, by the Officers and the Courts must be slow in granting relief, much less interim relief in cases where violators approach the Court for relief, as even a disposal of representation will give rise to another round of litigation. Recently, the Hon'ble Supreme Court in Government of India and another vs. P.Venkatesh [Civil Appeal No.2425 of 2019 decided on 01.03.2019, has made a critical observation that the term 'dispose of the representation' mantra is increasingly permeating the judicial process in the High Courts and the Tribunals, but actually, they do no service to the cause of justice;
http://www.judis.nic.in 68 xvi) No Civil Court shall grant any interim order without invoking Order 18 Rule 18 of CPC (which provides the legal leniency to the Court to personally inspect the property or thing in question and prepare a memorandum of such inspection, which can then be taken upon the records of the case matter) and the inspection needs to be videographed and photographed;
xvii) The Tamil Nadu Prevention and Control of Water Pollution Board is directed to inspect all the Industries situated in the State and ensure that no waste water released from the Plant is mixed into the rivers, ponds, lakes, oceans, etc., and in the event of any such release of contaminated water, the Board shall at first take photograph of the same and immediately request the Electricity Board to disconnect the supply and on such request, the Electricity Board shall act thereon. The Water Pollution Board shall also take all possible steps to close down such Industries till such time proper outlet is fixed by them and the said Board shall also introduce drone technology to ascertain whether there is any mixture of waster water into rivers, ponds, etc. In addition, a periodical inspection has to be carried on every year to ensure that there is no underneath pipeline connection, laid for the purpose of releasing bad waters into rivers, ponds, etc., as it will be highly impossible to identify such connections by using Drone Technology. http://www.judis.nic.in 69 Further, the details of persons inspecting the Industries need to be kept readily for the purpose of future reference and in case any deficiency in work, being brought to light by the local residents or anyone at a later point of time, then those Officials will have to face the music;
xviii) The Government should think of constructing more number of Dams across the State that may have to long last for centuries without allowing any of the Officials to mint money / to accumulate long lasting wealth on and from the funds allotted for such construction of Dams, so as not to beg water from other States during summer season and allocate funds in the budget, as a healthy State requires free and unpolluted air and water and not freebies. While confirming the Tender, the Government should direct the successful Tenderers / Contractors to display in the notice Board at site for the public to know, with regard to the name of the Contractor, name of the project, fund allotted, expenditure incurred and any other information, as it may deem fit, as each penny of the tax payers should be properly utilized for the welfare of the public and should not be wasted in the form of free distribution. Citizens must be taught to earn and the Government cannot show generosity by plucking out money from other men's pocket;
xix) Since the above directions are issued in the case relating to PIL, the non-compliance of any of the above conditions shall be brought to the http://www.judis.nic.in 70 attention of this Court by any third party, apart from the petitioner in order to enable this Court to initiate suo motu contempt;
xx) The outer time-limit of one year is fixed for the Wing to complete the entire process of restoration of Water Bodies in the State in order to convert our State a flood-free State and also to attain self-sufficiency in water. The Chairman of the STF shall assign a separate helpline / Phone Numbers District-wise to enable the public to contact them in case of any illegal encroachment, etc., and in the event of non-picking of phone calls, the Officer, who is in-charge of the office on that day shall be responsible for not answering the call and necessary explanation shall be called for from the concerned Official in case of any complaint from public with evidence, as most of such helplines numbers in various Departments are only deadlines, created for name sake;
47. Though the learned Additional Advocate General has submitted that this Writ Petition has been filed for private interest, stating that the Petitioner-in-Person himself is an encroacher, such contention was discussed in W.P.No.27392 of 2016 by the Hon'ble First Bench of this Court and passed an order in favour of the Petitioner herein. Thus, it is clear that the Petitioner is not an encroacher and this is a Public Interest Litigation and not a Private Litigation. It is expected that the Learned Additional Advocate General must apprise the Government to depute honest Officers http://www.judis.nic.in 71 to ensure that the Water bodies are protected and the directions issued by this Court are duly complied with, as the next generation is going to starve for water, if precaution is not taken and the families of not only the learned Additional Advocate General, but also the families of Judges, Ministers, etc., will also toil.
48. Last but not the least, this Court places on record its profound appreciation on the yeoman services rendered by the Petitioner-in-Person in the larger public interest. From the voluminous case records produced by the Petitioner-in-Person, it could easily be understood that he has taken much pain in the interest of public at large. Therefore, the First Respondent is directed to pay an amount of Rs.50,000/- (Rupees Fifty Thousand only) to the Petitioner within a period of three months from today in appreciation of his laudable paper work. This amount should not be construed as punitive costs imposed on the Government and in order to encourage litigants like that of the Petitioner having concern on the society, the amount is ordered to be paid. It is also pertinent to mention here that but for the assistance of the learned Additional Advocate General, who was duly assisted by the Learned Government Advocate, this Court would not have given quietus to the matter, as both of them took an effective and efficacious endeavours to furnish this Court the instruction that the Government is taking all possible steps to remove encroachments http://www.judis.nic.in 72 on water Bodies and will ensure no further encroachments on the existing water bodies, OSR, Parks, etc and in case any public places are sold, necessary civil and criminal action will have to be taken against the Violators and necessary disciplinary proceedings should be taken against the Official responsible for such disposal of the property.
49. Before parting with this, we want to emphasise that though our Grandfathers saw the Water in River, Father in 'Well', the present generation in 'Tap' and our Children in 'Bottle', we should not make our grandchildren see it in 'capsule'.
In the light of detailed upshot, aforesaid observations and directions, the Writ Petition stands disposed of, of course without costs.
The First Respondent / Chief Secretary is directed to circulate this order to all the Officials, dealing with sanctioning of plans/construction/demolition, encroachment, etc., including the Chairman, TNEB, Chennai and the Water Pollution Board.
[M.V.,J.] [S.V.N.,J.] 29.04.2019 Index:Yes Internet:Yes Speaking Order: Yes ar Note: Issue order copy on 03.05.2019 Note: Registry is directed to mark a copy of this order to all the Lower Courts in the State of Tamil Nadu.
http://www.judis.nic.in 73 To:
1. The Chief Secretary, State of Tamil Nadu, Public Department, Fort St.George, Secretariat, Chennai-600 009.
2. The Secretary, State of Tamil Nadu, Public Works Department, Fort St.George, Secretariat, Chennai-600 009.
3. The Secretary, State of Tamil Nadu, Revenue Department, Fort St.George, Secretariat, Chennai-600 009.
4. The Commissioner of Land Administration, Ezhilagam, Chepauk, Chennai-600 005.
5. The Commissioner, Corporation of Chennai, Rippon Building, Chennai-600 003.
6. The Chief Engineer, Public Works Department, Water Resources Organisation, Ezhilagam, Chepauk, Chennai-600 005.
http://www.judis.nic.in 74 M.VENUGOPAL, J.
and S.VAIDYANATHAN, J.
ar PRE-DELIVERY ORDER IN W.P.13648 of 2016 29.04.2019 http://www.judis.nic.in