India -- L. Krishnan v. State of Tamil Nadu, W.P.No.20186 of 2000 (27/06/2005) (Encroachments on Odai Poromboke natural water storage)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 27/06/2005

Coram

The Hon`ble Mr.MARKANDEY KATJU, CHIEF JUSTICE
and
The Hon`ble Mr.Justice F.M.IBRAHIM KALIFULLA

W.P.No.20186 of 2000
and
W.P.M.P.No.29342 of 2000

L. Krishnan ... Petitioner

-Vs-

1. State of Tamil Nadu represented
by its Secretary,
Department of Revenue (Land Development)
Fort.St.George,
Chennai - 600 009.

2. The Special Commissioner and
Commissioner of Land Administration,
Chepauk, Chennai - 600 005.

3. The District Collector
Villupuram District,
Villupuram.

4. The Tahsildar,
Kallakurichi Taluk,
Kallakurichi,
Villupuram District.

5. The Village Administrative Officer,
Thatchur Post,
Kallakurichi Taluk,
Villupuram District - 606 202.

6. Mr.Govida Naicker
7. Mr.Muthusamy
8. Mr.Chinnasamy
9. Mr.L.Maya Krishnan
10. Mr.Ganesh Gounder
11. Pariyammal
12. L. Sekhar ... Respondents

Prayer: This writ petition is filed under Article 227 of the Constitution to direct the respondents 1 to 5 to remove the encroachment made by respondents 6 to 12 in the Kodi Poromboke land in Iyan Punjai Survey No.100/1, No.247, Thatchur Village, Kallakurichi Taluk, Villupuram District measuring 5 acres and 70 cents.

!For Appellant ::: Mr.E.Vijay Anand

^For Respondents
1 to 5 ::: Mr.V.Raghupathy
Government Pleader

:O R D E R
F.M.IBRAHIM KALIFULLA,J

This is a Public Interest Litigation, where the petitioner seeks for a direction against respondents 1 to 5 to remove the encroachments made by the respondents 6 to 12 in Odai Poromboke in Iyan Punji Survey No.100/1 at No.247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring 5 acres and 70 cents.

2. In fact, on an earlier occasion, the petitioner approached this Court in W.P.No.9562 of 1998 wherein the First Bench of this Court passed an order dated 13.7.1998 disposing of the writ petition, giving liberty to the petitioner to approach the very same respondents 1 to 5 for the removal of encroachment. In the said order, the Collector and the Tahsildar, namely, respondents 3 and 4 were directed to decide the representation by passing a speaking order within one month and also intimate the same to the petitioner.

3. This time, when the matter was taken up for hearing, learned counsel appearing for the sixth respondent brought to our notice that the fourth respondent, namely, Tahsildar had held an enquiry after the above referred to orders of this Court and that he also submitted his report on 10.12.2004 and a copy of the said report was placed before us. On a perusal of the said report, we find that the enquiry made by the fourth respondent has brought out the fact that not only the respondents 6 to 12 but the petitioner has also encroached into the Odai Poromboke. The Tahsildar has ultimately reported that all the encroachments including that of the petitioner are liable to be removed by taking necessary steps under the Tamil Nadu Land Encroachment Act.

4. We also find that the land in question has been classified as `Odai Poromboke` in the revenue records. Though based on the report of the Tahsildar dated 10.12.2004, this writ petition can be summarily disposed of by directing the third respondent to take necessary steps for the removal of the encroachments. We feel it appropriate to pass this order and give certain other directions to the first respondentState Government to make an overall study of all such encroachments in respect of the lands which have been classified as lands meant for the purpose of storage of water (i.e. ponds, tanks, lakes, etc). We are of the view that in the present day context, such a step is required to be taken by the State in order to improve the water storage facility prevailing in this State since in many parts of Tamil Nadu people are suffering from an acute shortage of water.

5. Since time immemorial ponds, tanks and lakes have been used by the people of our Country, particularly in rural areas, for collecting rain water for use for various purposes. Such ponds, tanks and lakes have thus been an essential part of the people`s natural resources. However in recent years these have been illegally encroached upon in many places by unscrupulous persons who have made their constructions thereon, or diverted them to other use. This has had an adverse effect on the lives of the people.

6. It is also relevant to state that day in and day out, many such petitions are being filed by way of `public interest litigation` alleging encroachments into ponds/tanks/lake/odai porambokes etc. in different parts of this State, more particularly in villages. Having regard to the acute water scarcity prevailing in the State of Tamil Nadu as a whole, we feel that a time has come where the State has to take some definite measures to restore the already ear marked water storage tanks, ponds and lakes, as disclosed in the revenue records to its original status as part of its rain water harvesting scheme. We also take judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a time bound programme in order to ensure that the frequent acute water scarcity prevailing in this State is solved as a long time measure. In fact, the classification as Ooranis, Odais, and Lakes in the revenue records are all areas identified in the villages where the rain water gets stored enabling the local villagers to use the same for various purposes throughout the year inasmuch as most parts of the State are solely dependent on seasonal rains both for agricultural operations as well as for other water requirements. Therefore, it is imperative that such natural resources providing for water storage facilities are maintained by the State Government by taking all possible steps both by taking preventive measures as well as by removal of unlawful encroachments.

7. In this context, it will be appropriate to refer to the judgment of the Hon`ble Supreme Court reported in Hinch Lal Tiwari v. Kamala Devi and others, AIR 2001 SC 3215. Paragraphs 12 and 13 are relevant for our present purpose which read as under: -
" 12. On this finding, in our view, the High Court ought to have confirmed
the order of the Commissioner. However, it proceeded to hold that considering
the said report the area of 10 biswas could only be allotted and the remaining
five biswas of land which have still the character of a pond, could not be
allotted. In our view, it is difficult to sustain the impugned order of the
High Court. There is concurrent finding that a pond exists and the area
covered by it varies in the rainy season. In such a case no part of it could
have been allotted to anybody for construction of house building or any allied
purposes.

13. It is important to notice that the material resources of the community
like forests, tanks, ponds, hillock, mountain etc. are nature` s bounty.
They maintain delicate ecological balance. They need to be protected for a
proper and healthy environment which enables people to enjoy a quality life
which is the essence of the guaranteed right under Article 21 of the
Constitution. The Government, including the Revenue Authorities i.e.
Respondents 11 to 13 having noticed that a pond is falling in disuse, should
have bestowed their attention to develop the same which would, on one hand,
have prevented ecological disaster and on the other provided better
environment for the benefit of the public at large. Such vigil is the best
protection against knavish attempts to seek allotment in non-abadi sites."

8. A reading of the above referred passages of the said Judgment shows that
the endeavour of the State should be to protect the material resources like
forests, tanks, ponds, hillock, mountain, etc., in order to maintain the
ecological balance. The Hon`ble Supreme Court has highlighted that such
maintenance of ecological balance would pave the away to provide healthy
environment which would enable the people to enjoy a quality life which is
essence of the right guaranteed under Article 21 of the Constitution. While
on the one hand, the State is bound to maintain the natural resources with a
view to keep the ecological balance intact and thereby provide a healthy
environment to the public at large in the State of Tamil Nadu, having regard
to the precarious water situation prevailing in the major part of the year, it
is imperative that such noted water storage resources, such as tanks, odais,
oornis, canals etc. are not obliterated by encroachers.

9. In this connection reference may be made to Article 48A of the
Constitution which states: -
"Protection and improvement of environment and safeguarding of forests and
wild life: - The State shall endeavour to protect and improve the environment
and to safeguard the forests and wild life of the country."

10. No doubt the above provision is in the Directive Principles of
State Policy, but it is now well settled that the fundamental rights and
directive principles have to be read together, since it has been mentioned in
Article 37 that the principles d down in the Directive Principles are
fundamental in the governance of the country and it is the duty of the State
to apply these principles in making laws. The Directive Principles embody the
aim and object of the State under a Republican Constitution, i.e., that it is
a welfare State and not a mere police State, vide Kesavananda Bharati Vs.
State of Kerala, (197 3) 4 SCC 225 (vide paragraphs - 134, 139 and 1714) and
embodies the ideal of socio-economic justice, vide Union of India Vs.
Hindustan Development Corporation, AIR 1994 SC 988 (990).

11. Though the early decisions of the Supreme Court paid
comparatively scant attention to the Directive Principles in Part - IV of the
Constitution as they were said to be non-justiciable and nonenforceable in the
Courts (vide Article 37), the subsequent decisions of the Supreme Court
changed this trend and this new trend reached its culmination in the 13 member
bench Judgment of the Supreme Court in Kesavananda Bharati`s Case (Supra),
which laid down that there is no disharmony between the directive principles
and fundamental rights because they supplement each other in aiming at the
same goal of bringing about a social revolution and the establishment of a
welfare State, which is envisaged in the Preamble to the Constitution. The
Constitution aims at a synthesis of the two, and the Directive Principles
constitute " the conscience of the Constitution". Together they form the core
of the Constitution, vide Markandeya, V. Vs. State of A.P., AIR 1989 SC 1308
(paragraph - 9). They are not exclusionary, but are complementary to each
other, vide Unnikrishnan, J.P. Vs. State of A.P., AIR 199 3 SC 2178. It
follows therefore that the courts should uphold, as far as possible,
legislation enacted by the State which seeks to remove inequalities and attain
`distributive justice`, vide, Lingappa Pochanna Appealwar Vs. State of
Maharashtra, AIR 1985 SC 389 (paragraphs 1 6 and 20), Manchegowda Vs. State
of Karnataka,AIR 1984 SC 1151, Fateh Chand Himmatlal Vs. State of
Maharashtra, AIR 1977 SC 1825, etc., In recent decisions the Supreme Court has
been issuing various directions to the Government and administrative
authorities to take positive action to remove the grievances which have been
caused by nonimplementation of the Directive Principles, vide Comptroller and
Auditor General of India Vs. Jagannathan, AIR 1987 SC 537 (paragraphs 20-21),
Mukesh Advani Vs. State of M.P., AIR 1985 SC 1363, Bandhua Mukti Morcha Vs.
Union of India, AIR 1984 SC 802, Animal and Environment Legal Defence Fund Vs.
Union of India, (1997) 3 SCC 549, etc.

12. Apart from the above we may also refer to Article 51A(g) of the
Constitution which makes it a fundamental duty of every citizen "to protect
and improve the natural environment including forests, lakes, rivers and wild
life". This duty can be enforced by the Court, vide Animal and Environment
Legal Defence Fund Vs . Union of India (supra, vide para-15).

13. In M.C.Mehta Vs. Union of India, (1997) 3 SCC 715 (vide para - 1
0) the Supreme Court observed:-
"Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a
clear mandate to the State to protect and improve the environment and to
safeguard the forests and wildlife of the country. It is the duty of every
citizen of India to protect and improve the natural environment including
forests, lakes, rivers and wildlife and to have compassion for living
creatures. The "Precautionary Principle" makes it mandatory for the State
Government to anticipate, prevent and attack the cause of environment
degradation. We have no hesitation in holding that in order to protect the
two lakes from environmental degradation it is necessary to limit the
construction activity in the close vicinity of the lakes.

14. Therefore, we direct the respondents 1 to 5 to take necessary
legal steps to remove the alleged encroachments made by the respondents 6 to
12 as well as the petitioner over Odai Poramboke in Iyan Punji Survey No.100/1
at No.247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring
5 acres and 70 cents. Inasmuch as this writ petition has come before us by
way of a public interest litigation, we take this opportunity to direct the
State Government to identify all such natural water resources in different
parts of the State and wherever illegal encroachments are found, initiate
appropriate steps in accordance with the relevant provisions of law for
restoring such natural water storage resources which have been classified as
such in the revenue records to its original position so that the suffering of
the people of the State due to water shortage is ameliorated.

15. The writ petition is disposed of with the above directions. No
costs. Consequently, W.P.M.P is closed.

Index:Yes
Internet:Yes

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Copy to:

1. State of Tamil Nadu represented
by its Secretary,
Department of Revenue (Land Development)
Fort.St.George,
Chennai - 600 009.

2. The Special Commissioner and
Commissioner of Land Administration,
Chepauk, Chennai - 600 005.

3. The District Collector
Villupuram District,
Villupuram.

4. The Tahsildar,
Kallakurichi Taluk,
Kallakurichi,
Villupuram District.

5. The Village Administrative Officer,
Thatchur Post,
Kallakurichi Taluk,
Villupuram District - 606 202.

 

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