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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 22-7-2009
CORAM
The Hon'ble Mr.Justice S.J.MUKHOPADHYA
and
The Hon'ble Mr.Justice R.SUDHAKAR
Writ Petition Nos.19388 of 2006 and 7243 of 2007
and
Miscellaneous Petition Nos.1 and 2 of 2006 in W.P.No.19388 of 2006
and
Miscellaneous Petition No.1 of 2007 in W.P.No.7243 of 2007
and
Miscellaneous Petition No.1 of 2008 in both writ petitions
W.P.No.19388 of 2006:-
S.Venkatesan ... Petitioner
-Vs.-
1.Government of Tamil Nadu,
represented by its Secretary,
Municipal Administration and Water
Supply Department,
Fort St. George,
Chennai-600 009.
2.Commissioner of Municipal Administration,
Chepauk,
Chennai-600 005.
3.Tindivanam Municipality,
represented by its Commissioner,
Tindivanam. ... Respondents
W.P.No.7243 of 2007:-
K.V.N.Venkatesan ... Petitioner
-Vs.-
1.Government of Tamil Nadu,
represented by its Secretary,
Municipal Administration and Water
Supply Department,
Fort St. George,
Chennai-600 009.
2.Commissioner of Municipal Administration,
Chepauk,
Chennai-600 005.
3.Tindivanam Municipality,
represented by its Commissioner,
Tindivanam. ... Respondents
M.P.No.2 of 2006 in W.P.No.19388 of 2006:-
1.R.Nirmala Ravichandran,
2.D.Rajasekar. ... Petitioners/
Proposed Respondents 4 and 5
vs.
1.S.Venkatesan,
2.Government of Tamil Nadu,
represented by its Secretary,
Municipal Administration and Water
Supply Department,
Fort St. George,
Chennai-600 009.
3.Commissioner of Municipal Administration,
Chepauk, Chennai-600 005.
4.Tindivanam Municipality,
represented by its Commissioner,
Tindivanam. ... Respondents/Petitioner and
Respondents 1 to 3 in
W.P.No.19388 of 2006
M.P.No.1 of 2008 in W.P.No.19388 of 2006:-
A.Moovarku Mudalvan. ... Petitioner/3rd party
vs.
1.S.Venkatesan,
2.Government of Tamil Nadu,
represented by its Secretary,
Municipal Administration and Water
Supply Department,
Fort St. George,
Chennai-600 009.
3.Commissioner of Municipal Administration,
Chepauk, Chennai-600 005.
4.Tindivanam Municipality,
represented by its Commissioner,
Tindivanam. ... Respondents/Petitioner and
Respondents 1 to 3 in
W.P.No.19388 of 2006
M.P.No.1 of 2008 in W.P.No.7243 of 2007:-
A.Moovarku Mudalvan. ... Petitioner/3rd party
vs.
1.K.V.N.Venkatesan,
2.Government of Tamil Nadu,
represented by its Secretary,
Municipal Administration and Water
Supply Department,
Fort St. George,
Chennai-600 009.
3.Commissioner of Municipal Administration,
Chepauk, Chennai-600 005.
4.Tindivanam Municipality,
represented by its Commissioner,
Tindivanam. ... Respondents/Petitioner and
Respondents 1 to 3 in
W.P.No.7243 of 2007
Both the Writ Petitions are filed under Article 226 of Constitution of India praying to issue a writ of declaration to declare the resolution of the 3rd respondent dated 13.6.2006 in the emergency meeting held on 13.6.2006 to establish the new bus stand in the Tindivanam Ery land (Survey Nos.33/4 and 36/5) as illegal, arbitrary and contrary to Environmental law declared by the Hon'ble Supreme Court and consequently direct the respondents to implement G.O.Ms.No.136 dated 15.9.2006.
M.P.No.2 of 2006 in W.P.No.19388 of 2006 is filed praying to implead the petitioners as the proposed respondents 4 and 5 in W.P.No.19388 of 2006.
M.P.No.1 of 2008 in both the W.P.No.19388 of 2006 and W.P.No.7243 of 2007 is filed praying to implead the petitioner as the proposed 4th respondent in both the W.P.Nos.19388 of 2006 and 7243 of 2007.
For petitioner in
W.P.No.19388 of 2006 : Miss R.Vaigai
for Mr.Balan Haridoss
For petitioner in
W.P.No.7243 of 2007 : Mr.Ajay Khose
For respondents in
both writ petitions : Mr.G.Masilamani,
Advocate General,
assisted by
Mr.S.Sivashanmugam
Government Advocate
For implead petitioner in
M.P.No.2 of 2006 in W.P.
No.19388 of 2006 : Mr.V.Raghavachari
For implead petitioner in
M.P.No.1 of 2008 in W.P.
Nos.19388 of 2006 and
7243 of 2007 : Mr.V.Ragupathi
-----
COMMON JUDGMENT
R.SUDHAKAR,J.
The Writ Petitions are filed in public interest to issue a writ of declaration to declare the resolution of the 3rd respondent dated 13.6.2006 in the emergency meeting held on 13.6.2006 to establish the new bus stand in the Tindivanam Ery land (Survey Nos.33/4 and 36/5) as illegal, arbitrary and contrary to Environmental law declared by the Hon'ble Supreme Court and consequently direct the respondents to implement G.O.Ms.No.136 dated 15.9.2006.
2. In both the writ petitions the facts and the relief sought for are similar. Hence, both the writ petitions are taken together and disposed of by this common order.
3. The brief facts of the case of the writ petitioners in both the case is as follows:-
(i) After construction of fly over in Tindivanam Municipal Town, the existing old bus stand was not sufficient to cater to the needs of the public and is causing traffic congestion. The Tindivanam Municipality, initially has taken a decision to establish new bus stand in Tindivanam Ery in R.S.Nos.33/4 and 35/5 measuring 6 acres. The Council of the third respondent, on 27.11.1991 requested the first respondent government to grant permission to enter upon the land pending finalisation of alienation of the land. Thereafter, the then elected body of the Municipal Council of the third respondent passed Resolution No.473 dated 25.5.1998 giving its concurrence for the alienation of Tindivanam Ery and thoppu poramboke lands for the new bus stand. The District Collector, Villupuram by his communications dated 10.1.2000, 29.3.2000 and 13.6.2000 recommended the proposal of the Tindivanam Municipal Council to the first respondent. The first respondent Government in G.O.No.101 dated 5.3.2001 passed orders alienating the Ery and thoppu lands in all measuring 6 acres in R.S.Nos.33/4 and 36/5 to the third respondent on payment of Rs.12,79,488/- towards cost of the land and Rs.1,361/- towards the cost of standing trees. On payment of money, the land was handed over to the third respondent on 14.1.2003. After this no action was taken.
(ii) The construction of new bus stand on the Ery is not a good proposal in public interest. The public are opposing the construction of new bus stand on the Ery land as the same would damage the water resources and the water table of Tindivanam Town will go down. The rain water should accumulate in the Ery, however, if the same is filled up for the bus stand purpose, it would result in the flooding of Tindivanam Town during monsoon and other rainy seasons. If new bus stand is put up in the Ery land, it will result in development of the adjacent places and it will cause further damage the entire Ery resulting in pollution. In this process, the entire rain water body, the Ery will be decimated in the near future and cannot be revived by any means. It will cause a permanent and irrevocable damage to the ecology.
(iii) In view of the public opposition for establishing new bus stand in the Ery land, the then elected body of the Tindivanam Municipal Council, on 30.7.2004 passed a resolution No.354 to establish the new bus stand in the land belonging to Wakf Board at Survey No.202 measuring 6 acres on the National Highways No.45 in Gidangal village on the Mylam Road, Tindivanam. The said land is about 250 metres away from the existing bus stand and the same is within the Town limits of Tindivanam. Second respondent Commissioner of Municipal Administration permitted the third respondent to appoint a consultant for construction of new bus stand vide its proceedings dated 9.6.2004. Third respondent Municipality passed resolution No.444 dated 30.9.2004 to appoint consultant for designing the bus stand.
(iv) As two resolutions were passed by the Tindivanam Municipality one on 25.5.1998 by the past elected body of Municipal Council to establish the new bus stand in the Tindivanam Ery and other one on 30.7.2004 by the subsequent elected body of the Tindivanam Municipal Council to establish the new bus stand in Wakf Board land, the third respondent by its letter dated 10.10.2004 sought clarification from second respondent Commissioner of Municipal Administration as to which resolution has to be acted upon.
(v) The writ petitions filed under public interest litigation to quash the Municipal Council's Resolution No.458 dated 30.9.2004 seeking to establish new bus stand in the Wakf Board land were dismissed.
(vi) Second respondent taking note of the two resolutions passed by elected body and the need to preserve the Ery, taking into consideration of G.O.Ms.No.186 dated 29.4.2003 which prohibits encroachment of any Ery, Pond or any water resources, accepted the proposal to establish new bus stand in the land belonging to Wakf Board. Accordingly second respondent vide his letter dated 25.2.2005 directed the third respondent to initiate action with the Wakf Board for getting the land for establishing new bus stand. The said letter was also placed before the Council of the third respondent and the same was registered by the Council in its Resolution No.110 dated 4.3.2005.
(vii) Thereafter, the third respondent approached the District Collector, Villupuram with a request to ascertain the willingness of the Wakf Board to sell the land to the third respondent or to lease out the land on long term basis for establishing new bus stand. After inspection of the said land, the District Collector submitted his report to the first respondent stating that the land belonging to the Wakf Board in Survey No.202 at Gidangal village can be utilised for construction of new bus stand. The Tamil Nadu Wakf Board agreed for fixing the lease amount at Rs.60,000/- per month and agreed to lease out 6 acres out of 24.04 acres in Survey No.202 and for receiving Rs.6,00,000/- towards advance. On 17.8.2005, the Council of the third respondent agreed to the lease amount and advance proposed by the Wakf Board in its Resolution No.395. Accordingly, third respondent by its letter dated 18.8.2005 sought permission for paying the lease amount and the lease advance for the new bus stand. The first respondent issued G.O.Ms.No.136, Municipal Administration and Water Supply (MA 4) Department dated 15.9.2005 granting permission to the third respondent to take over 6 acres of land out of 24.04 acres in Survey No.202 of the Gidangal village from the Tamil Nadu Wakf Board on three year lease basis extendable 25 times for construction of new bus stand. First respondent also permitted the third respondent to pay the lease rent of Rs.60,000/- per month with advance amount of Rs.6 lakhs to the Tamil Nadu Wakf Board.
(viii) On issuing G.O.Ms.No.136 dated 15.9.2005, the possession of Wakf Board's land was taken after paying the lease and advance amount. The land was cleaned and levelled with District Collector's approval. The Regional Transport Officer accorded necessary permission for opening the bus stand on temporary basis pending construction of pakka building. New bus stand established on temporary basis was opened on 28.12.2005 by the then Local Minister and the District Collector. Tenders were invited for construction of building in the bus stand and many people participated in the Tender. In view of the announcement of the Election date, the tenders were not opened due to the Notification by the Election Commissioner.
(ix) Whileso, the third respondent contrary to G.O.Ms.No.186 dated 29.4.2003 has passed a resolution in an emergency meeting on 13.6.2006 seeking approval to establish the bus stand at the Ery Site for the second time, which was already discarded as stated above. The first respondent Government has issued G.O.Ms.No.41 Revenue (L) Department dated 20.1.1987 prohibiting regularisation of any encroachment in the Ery, Pond, etc., and directed the authorities to remove all the encroachments. As per G.O.Ms.No.186 dated 29.4.2003, all the encroachments in the Ery, Odai, Vaikal, etc., were directed to be removed by the District Collector, and no encroachment on the water bodies/resources should be regularised. It was further directed that any future encroachment should also be dealt with sternly. In the said G.O., it was mentioned that any District Administrative Officer violating the directions will face disciplinary proceedings.
(x) In the rain during October, 2005 there was flooding of the Tindivanam Town as the water courses to the Ery were blocked. The resolution No.671 dated 13.6.2006 is in violation of G.O.Ms.No.41 dated 20.1.1987, G.O.Ms.No.186 dated 29.4.2003, G.O.Ms.No.136 dated 15.9.2005 and the judgment rendered by the Supreme Court reported in 2006(2) CTC 71 besides violating the provisions of the Tamil Nadu Water (Prevention and Control of Pollution) Act, 1974. Therefore, the resolution No.671 dated 13.6.2006 by the Council of the third respondent has to be declared illegal.
(xi) It is also contended that the first respondent should endeavour to protect and improve the environment under Articles 48A and 51A of the Constitution of India. The resolution is contrary to Articles 14 and 21 of the Constitution of India. It is the duty of the citizen to protect and improve National Environment including Forests, Lakes, Rivers, Wild Life and to have compassion for living creatures. Hence, both the writ petitions are filed to declare the resolution No.671 of the 3rd respondent dated 13.6.2006 to establish new bus stand in the Tindivanam Ery land as illegal, arbitrary and contrary to Environmental law declared by the Supreme Court and consequently direct the respondents to implement G.O.Ms.No.136 dated 15.9.2006.
4. In the counter affidavit dated 21.7.2006 filed by one K.Kanniappan, the then Commissioner, Tindivanam Municipality, the third respondent in W.P.No.19388 of 2006, it is stated as follows:-
(i) The writ petitioner has an efficacious and alternate remedy as contemplated under Section 36 of the Tamil Nadu District Municipalities Act, 1920. The Municipal Council can pass resolution, if it is based on majority and the same is subject to acceptance of the government. It is for the government to consider the case on merits and to issue appropriate orders. (emphasis supplied). After the Ery and thoppu land was alienated to the municipality on 14.1.2003, the third respondent has taken effective steps for construction of new bus stand. The third respondent never remained inactive. The total extent of the Ery is 28.91 acres. An extent of 5 acres on the higher level, where there is no water stagnation as per the report of the District Collector was alienated for establishing the bus stand. It is not correct to say that the public was opposing the alienation of the land for bus stand. The Government has clearly indicated in the G.O.Ms.No.101 Revenue Department dated 5.3.2001 that no objection was received from the public with regard to the land alienation. The rain water accumulation will not at all be affected inasmuch as 23.91 acres of land, which is the actual catchments area, is still available as Ery. The southern side of the Ery remains a well-developed area and it not spoiled. On the northern side of the Ery, there is the Micro Wave Station of the BSNL. On the eastern side, there is the National Highways Road. On the western side, there is railway line. This Ery still remains unpolluted with these developments. If bus stand comes there, there is no scope for further development around it and the Ery will not at all be affected on any account. There is no question of decimating the water body and there will be no damage to the ecological balance. The petitioner has not so far raised any objection with the Municipal authorities. There is no objection from the public either to the municipality or to the Revenue authorities or to the Pollution Control authorities.
(ii) The Writ Petition Nos.32320 of 2004 and 7563 of 2005 challenging the resolution No.458 dated 30.9.2004 of third respondent Municipality to establish the bus stand in Wakf Board's land were dismissed by this Court on 1.12.2004 and 12.4.2005 respectively, on the ground that the petitioners were having efficacious alternative remedy of appeal under Section 36 of the Tamil Nadu District Municipalities Act, 1920. The same will hold good to the present case also.
(iii) It is not correct to say that taking note of the fact that no activity had been carried out till date in the Ery site to establish the new bus stand, the government discarded the Ery site and accepted the proposal to establish the new bus stand in the land belonging to the Wakf Board.
(iv) In G.O.Ms.No.136 dated 15.9.2005, orders were issued granting permission to the Tindivanam Municipality to take over 6 acres of land out of 24.04 acres in Survey No.202 of Gidangal village, Tindivanam town from Tamil Nadu Wakf Board on lease basis for construction of a bus stand. The government have not so far come to a conclusion that the land already alienated to the municipality was not suitable for bus stand. If the municipality had been silent without any activity after alienation of land, the government would have taken back the same from the municipality on the ground that the municipality was not interested in the same. The council was actually interested in getting the bus stand at the alienated site and efforts were going on. The second respondent in his letter dated 25.2.2005 enclosing copy of letter dated 22.2.2005 from the Secretary to Government in Municipal Administration and Water Supply Department informed that the government had no objection, if the Tindivanam Municipality wished to change the site of bus stand based on the practical issue and the government further informed that the municipality can proceed further in the matter after obtaining the willingness of the Wakf Board for the proposed acquisition and requested the third respondent to take suitable action and send proposal to alienate the Wakf Board land for the project. The government has not indicated that the alienated land was not suitable for bus stand.
(v) While issuing orders in G.O.Ms.No.101 dated 5.3.2001, the government had indicated in clear terms that the ban on alienation of water bodies was exempted in this issue. The government did not reconsider this so far. The government always have the power to consider any issue based on merits and issue appropriate orders. After issue of G.O.Ms.No.186 dated 29.4.2003, the government issued another G.O.Ms.No.41 dated 30.1.2004 alienating 6.10 acres of Chinna Ery land in favour of Krishnagiri Municipality for the construction of bus stand.
(vi) As per Section 36 of the Tamil Nadu District Municipalities Act, 1920, the government have power to suspend or cancel any resolutions under the Act. So, if the petitioner is aggrieved by the resolution passed by the municipal council on 13.6.2006, he has got adequate opportunity to represent the matter to the District Collector, the Regional Director of Municipal Administration, the Commissioner of Municipal Administration and the Government and get his grievance redressed.
(vii) The resolution passed by the Municipal Council on 13.6.2006 is not in violation of the G.O.Ms.No.186 dated 29.4.2003. The earlier order passed by this Court in the writ petitions filed during the years 2004 and 2005 as stated above questioning the other resolution passed by the same municipal council will hold good for this writ petition also. Therefore, the third respondent prays dismissal of the writ petition.
(viii) No counter was filed by the respondents in W.P.No.7243 of 2007.
5. In the additional common counter-affidavit dated 13.11.2008, filed by one Mr.N.Ravichandran, the present Commissioner, Tindivanam Municipality, the third respondent in W.P.Nos.19388 of 2006 and 7243 and 2007, it is stated as follows:-
(i) The relief claimed in the writ petition is for redressel of private and political dispute and not in public interest. It is incorrect to state that the Municipality has passed a resolution in the emergency meeting held on 13.6.2006 to establish a new bus stand in the Tindivanam Ery land. All procedures have been scrupulously followed for purchase of the land. After inspection, the District Collector vide his letter dated 6.11.1991 had stated that the existing bus stand is not sufficient to cope-up with the vehicular traffic and the same has to be relocated from its existing place for the following two reasons, viz.,
(a) the place has become highly congested and
(b) the road from NH 45 is very narrow and precarious.
On 14.11.1991, the Municipality had sent a requisition to the District Collector for the alienation of the land for the purpose of relocating bus stand. On 27.11.1991, in Resolution No.400 of Tindivanam Municipal Council sought alienation of land and permission to enter upon the Ery land.
(ii) On 20.10.1994, the Municipal Commissioner sent a proposal to the District Collector, Villupuram for getting a suitable land to locate the new bus stand. On 29.3.1995, the District Revenue Officer, Villupuram sent to a letter to the Municipality suggesting acquiring some other sites so as to avoid selection of water bodies for development work. On 7.3.1997 by resolution No.612, the Tindivanam Municipal Council reiterated its stand on the selection of Tindivanam Ery and stated that there is no other suitable land available within the town for the construction of bus stand and the same was communicated to the District Revenue Officer, vide letter dated 12.3.1997. Thereafter, A1 notice (under R.S.O.No.24) was issued on 13.8.1997 calling for objections within 15 days from the date of publication. Due publication was caused and informed in the locality by the beating of Tom Tom.
(iii) On 16.9.1997, the Tahsildar, Tindivanam, inspected the site along with Revenue Inspector and Village Administrative Officer and sent a proposal to the District Revenue Officer on 9.10.1997. The notes of inspection were sent to the Assistant Collector, Tindivanam on 24.10.1997. On 12.2.1998, the Tahsildar requested the Council for forwarding the proposals. On 5.10.1998 the Commissioner sent the proposal and the consent to acquire 5 Acres of Ery Poromboke and 1 acre of Thoppu Poromboke to Tahsildar, Tindivanam. On 9.4.1999 the inspection notes of the Revenue Divisional Officer was sent stating that the land under reference was not low lying and the entire ayacut lands are being converted to housing sites and hence can be alienated. On 8.11.1999, the Revenue Divisional Officer after inspection sent his report in letter No.A3/127/98 to the District Collector, Villupuram about the suitability of the site. On 12.11.1999, the technical opinion for the construction of the bus stand from the Commissioner, Panchayat Union, Marakkanam was received and on the same day a resolution was passed in Resolution No.215 to the effect that the land is suited for the formation of the bus stand. After inspection, the then District Collector, Villupuram and the District Revenue Officer expressed their satisfaction on the formation of the bus stand in the proposed site. No objection was received from anyone regarding the proposed bus stand.
(iv) The District Collector, by his letter dated 10.1.2000 addressed to the Secretary, expressed the suitability of the Ery site and requested the government for exemption from the ban order. On 5.3.2001, G.O.Ms.No.101 was issued by the Revenue Department alienating the land and also granting exemption from the ban orders. On 18.11.2002, the Municipal Commissioner sent a cheque for a sum of Rs.12,80,849/- to the Tahsildar. On 29.11.2002, by resolution No.556, the Municipal Council resolved to construct the proposed bus stand at the cost of Rs.5 crores. The lands were taken possession by the Tindivanam Municipality on 14.1.2003. As requested, the Sub Collector, Motor Vehicles Inspector and Commissioner, Tindivanam Municipality inspected the site and sent a joint report on 25.4.2003, about the suitability of land for the construction of the proposed bus stand and emphasized the urgency and the dire need of it to the town. On 12.6.2003, the District Collector, sent his recommendations to the Commissioner of Municipal Administration. On 15.10.2003, the Commissioner of the Municipal Administration sought for a meeting with the Municipal Commissioner for the finalisation of the design of the proposed bus stand. On 25.8.2004, the tender documents were approved by the Commissioner of Municipal Administration.
(v) On 30.9.2004, by Resolution No.444, the Municipality resolved to construct the bus stand on the land belonging to the Wakf Board. The same as challenged by way of W.P.No.32320 of 2004. The said W.P.No.32320 of 2004 was dismissed on 1.12.2004. By virtue of Resolution No.59, the Municipality fixed a deadline of one month to decide as to whether to construct the bus stand either on the Wakf Board land or at the lands already purchased by it. On 25.2.2005, the Commissioner of Municipal Administration gave consent and expressed no objection to Municipality for the construction of the bus stand on the Wakf Board Land. On 2.3.2005, the Municipal Commissioner sought willingness of Wakf Board and on 3.8.2005, the Wakf Board stated its terms and conditions for leasing out its land for a period of 75 years. By G.O.Ms.No.136 (MAWS) dated 15.9.2005, the Government permitted the Municipality to take 6 acres of Wakf Board land on lease and permitted the Municipality to pay the lease rent of Rs.60,000/- per month and an advance amount of Rs.6,00,000/-. The lease deed was executed on 22.12.2005, in favour of the Wakf Board and an advance of Rs.6,00,000/- was paid. Temporary bus stand was inaugurated on 28.12.2005. G.O.Ms.No.19 (MAWS) dated 17.2.2006 accorded sanction for the construction of the bus stand at the cost of Rs.522 lakhs. Tender Notification was issued and the tender documents were received. They were not processed because of the notification of General Election to Tamilnadu State Assembly 2006. On 13.6.2006, impugned resolution No.671 was passed, by the newly elected Committee Members requesting the government to pass suitable orders for the construction of the bus stand at the Ery site. Under these circumstances, the present writ petition came to be filed. (emphasis supplied).
6. Pending Writ Petitions, this Court directed the respondents to file a report. The third respondent in its common additional counter dated 13.11.2008, has filed its report from paragraph 11 onwards, which reads as follows:-
"11. Pending Writ Petitions, as per the directions of this Hon'ble Court, the District Collector formed a committee consisting of District Revenue Officer, Villupuram District, R.D.O. Tindivanam and with the officials of Revenue and Tindivanam Municipality, for identification of suitable alternate sites for locating the new bus stand. The inspection was conducted by the above officials on 21.09.2008 and 22.09.2008.
12. As per the inspection report, the total extent of land comprised in Tindivanam Municipality is 22.33 sq. km. of this area the water course areas like lake, pond and other catchments area measures an area of 4.25 sq. km. In the remaining 18.08 sq. km, an extent of 11.89 sq. km. of land lying on the western side of the Railway line and the balance 6.19 sq. km. of land is lying on the eastern side of the Railway line.
13. Even though 3 sites of Government lands measuring more than 5 acres are available on the western side of the Railway line, were inspected for the purpose of construction of Bus Stand, those lands may not be feasible for the following reasons viz., "1) The distance between the main road (NH 45) to the said sites is around 4 to 5 kms.
2) The approach road has to be laid amidst thickly populated/residential area.
3) The approach road to the said site has to be formed by the way of land acquisition proceedings which in turn may cause enormous time delay and expenses.
4) Further, the time taken to get the approval from Railways for the construction of Railway over bridge or subway would be enormous.
5) The public would be put to hardship and inconvenience, the time and cost taken to go to bus stand would be more than the travelling cost of reaching Tindivanam."
14. An extent of 6.19 sq.km. (1538.94 acres) lying on the eastern side of the railway line was divided into 3 zones for the purpose of inspection. They are
1) The land situated between the railway line and the NH 45.
2) The land situated between NH 45 and the Bye-Pass.
3) The land situated between the Bye-Pass and the outer Municipal Limits.
15. The lands belonging to the government measuring more than 5.00 acre are available in the above 3 zones are:-
1) Tindivanam Ery (28 Acres)
2) Kaveripakkam Ery (77 Acres)
3) Odai comprised in i) Survey No.83/3 at an extent of 5.09 acres,
ii) Survey No.125 at an extent of 7.68 acres,
iii) Survey No.133/1 at an extent of 9.69 acres,
iv) Survey No.138/4 at an extent of 7.18 acres.
16. Of this, the Sl.No.3 is an Odai measuring more than 5.00 acres. The said Odai now serves as an outlet channel for Gidangal Ery, and hence, not considered. The other two sites are Tindivanam Ery and Kaveripakkam Ery. Among these two Erys, Kaveripakkam Ery is not selected because it is a PWD Tank, which stores water throughout the year. The Tindivanam Ery measures about 28.01 acres. The Tindivanam Ery is rain fed, minor irrigation Tank and is a non system tank, it has no water source other than run-off water. This tank is located adjacent to NH 45 and there is one acre Thoppu Poromboke which is also available. The five acres of Tindivanam Ery and one Acre of Thoppu Poromboke are contiguously situated and they are situated in an elevated position. Under normal circumstances, only 30 to 50% of Ery would be filled up. The total ayacut area is 46.38 acres. Out of these 46.38 acres, only 7.36 acres were under cultivation from the year 2002 onwards. Even these ayakkatars were not dependent on the tank water and they are predominantly using lift irrigation. For the past 20 years, their cropping pattern has not been changed from paddy cultivation. The sluice of this Ery has become defunct. The remaining ayacut areas are either remaining waste or being converted into house sites. There is no objection from the ayakkatars for the construction of the bus stand in the Ery site. Hence, the said site was found to be best suited for the construction of the bus stand.
17. With regards to the Patta lands that are measuring more than 5.00 acres situated between the Railway line and NH 45 are:-
i) Survey No.106/2 at an extent of 6.45 acres (Land Owner Mr.Chandrasekaran)
ii) Survey No.107/3 at an extent of 5.60 acres (Land Owner Mr.Ranganathan & Families),
iii) Survey No.109/2 an an extent of 6.26 acres (Land Owner Mr.Sagadevan),
iv) Survey No.110/3A at an extent of 5.84 acres (Land Owner Mr.Sundaramoorthy),
v) Survey No.175/1 at an extent of 7.30 acres (Land Owner Mr.Ramachandran),
vi) Survey No.176/1 at an extent of 5.11 acres (Land Owner Mr.Gopal).
(II) The patta lands that are measuring more than 5.00 acres situated between NH 45 and newly opened Bye-Pass are:-
i) Lands belonging to Roman Catholic Society, in Survey No.242/1A at an extent of 15.86 acres.
ii) Lands belonging to Wakf Board in Survey No.202 at an extent of 22.00 acre.
iii) Survey No.89/1A1 at an extent of 5.95 acres (Land Owner Mr.Anbunayaga Eswaraswamy).
(III) The Patta lands that are measuring more than 5.00 acres situated between the newly opened bye-pass and Municipal Limit:-
i) Survey No.10/3A1 at an extent of 5.05 acres (Land Owner Mr.Govindasamy)
ii) Survey No.17/2A1 at an extent of 7.57 acres (Land Owner Mr.Gopal & Families)
iii) Survey No.141 at an extent of 11.08 acres (Land Owner Mr.T.A.S.Palani)
iv) Survey No.151/1 at an extent of 5.29 acres (Land Owner Mr.Madava Chetty & Families)
18. Out of these 13 sites, most of the land owners are not willing to part with their lands for the formation of bus stand. Most of the aforesaid sites are already converted or under the process of formation of residential plots. Till date, there are no proper approach roads available to most of the sites. Hence, land acquisition proceedings have to be initiated for the formation of the approach road and bus stand, which would cause enormous time delay. In view of the prevailing market value and guideline values of the properties, the cost of land acquisition may over ride the cost of the bus stand project. Hence, those lands were not considered.
19. It is submitted that by the construction of the Bus stand at Tindivaman Ery, it would not affect the water storage capacity of the Tank and would also not affect the recharging of the ground water. The annual rainfall account for the past 20 years in Tindivanam Municipality limit is shown as detailed below:-
Year Rainfall in mm Year Rainfall in mm 1988 666 1998 1609 1989 952 1999 956 1999 1177 2000 1477 1991 1155 2001 1202 1992 714 2002 576 1993 886 2003 752 1994 885 2004 1091 1995 492 2005 1077 1996 1367 2006 942 1997 1373 2007 1085
20. The total extent of Tindivanam Ery is 28.01 acre. The water source to this Ery is only rainwater. For the past 20 years, this Ery did not receive its full capacity of water only except during the year 1998. The total water storage capacity of this Ery is 0.10 Million cubic metre. When the elevated portion of 5.00 acre is being used for the Bus Stand, the possibility of reduction of water storage capacity is around 7600 cubic meter. The said quantum of water if distributed to the remaining 23.01 acres, the water level of the entire Ery would be increased by 8 cm only. This is based on the Inspection report and technical opinion of the Executive Engineer, PWD/WRO, Lower Pennaiyar Basin Division, Villupuram. Further, he had opined that by transferring lands to proposed bus stand, the capacity of the tank would not be affected. The average annual rainfall of Tindivaman Taluk 1021.70 mm, from the available records the Tindivanam Ery filled only during the year 1988 (this may be 1998), when the annual rainfall was 1609 mm. Therefore, it is inferred that by alienating 5 acres of lands to the proposed bus stand, the water storage capacity would not in any way be affected. Further, the water from this Ery was never used for the drinking purposes of Tindivanam Town. Therefore, the averments and allegations that the dissipation of ground water table and depilation of water sources are false.
21. The existing Municipal Bus stand was established in the year 1969 with an extent of 1.02 acre, with 10 bus bays, in the centre of the Tindivanam Town. Actually the NH 45 which passes adjacent to that bus stand is very narrow. As the population of the town and the vehicular population had quadrupled since then, the present bus stand had outlived its utility and even as early as 1991, it was found to be insufficient. The construction of the fly over opposite to the existing bus stand, results in traffic congestion to local public and to the passengers. Hence, the Municipalities identified the Ery site, which is located at the North East corner of the Municipal limit. It is pertinent to state that Tindivaman is one of the major junction point for the vehicles coming from and to Chennai, Puducherry, Thiruvannamalai, Vandavasi, Kanchipurm, Vellore, Trichy and from down south of Tamilnadu. The strategic location of the proposed Ery site makes the Tindivaman Town free from vehicular congestion, for the following reasons.
22. Since the formation of the New Bye Pass road, not all the Vehicles plying from Chennai, Puducherry, Trichy and Thiruvannamalai need to enter the Tindivanam town.
23. The distance between old bus stand and the proposed bus stand is only 700 meters. Hence, it must welcome decision from public point of view.
24. The petitioner also stated about the utilisation of Wakf Board lands for Construction of New Bus Stand. The said Wakf Board lands located on the eastern side of the NH 45 and 500 metres away from the existing Bus stand, and located amidst Residential and Industrial are. More over, the Wakf Board had already given the said land for lease to 22 persons. Among them, 10 persons approached this Hon'ble Court against Wakf Board Decision to lease out the lands to Municipality.
25. The litigations are still pending before this Hon'ble Court. Moreover if the Wakf Board lands are selected, all the buses should enter into the Town. Since the bye pass branches out from NH 45 at the southern side of the town, just about 1.25 km away from the Wakf Board land hence the problem of traffic congestion will not be reduced. Considering these two points, the Wakf Board land was found not suitable.
26. With regard to the averments of the petitioner that destruction of the Ery would lead to ground water depletion, flooding of town area and cause pollution. It is submitted that the above averments are baseless and imaginary. Out of the total extent of 28.01 acre, the proposed bus stand will occupy only 5 acre of the Ery portion.
27. There will be no damages/destruction of bunds or to any existing structure. Hence, the question of demolition of the tank and flooding of Tindivanam Town is baseless. There are 3 PWD tanks and 3 minor irrigation tanks which are still alive and maintained by the respective departments. Hence, the question of depletion of ground water table does not rise (this word may be arise).
28. The details of the tanks are as follows:-
Sl.No.
Name of the Tank Maintained by Total Extent (in acres) Ayacut area (in acres Distance from Tindivanam Ery 1 Gidangal PWD 561.86 975.5 1 Km 2 KavErypakkam PWD 77.3 132.38 500 meters 3 Avarapakkam PWD 57.9 119.48 5 Km 4 Roshanai PEryya Ery PU 67.54 79.22 3 Km 5 Murungapakkam Ery PU 37.5 46.58 2 Km 6 Chettithangal Ery PU 38.6 31.61 5 Km
29. Moreover, it is submitted that the Government of Tamil Nadu undertakes renovation of minor irrigation and restoration of Small Water Bodies under National Rural Employment Guarantee Programme.
30. It is submitted that the Municipal Administration will follow all the direction issued by the Tamilnadu Pollution Control Board while constructing the New Bus Stand.
31. It is submitted, that there is no violation of state responsibility, since the construction of bus stand is not a threat to pollution. The Tindivanam Ery is not a Notified Biosphere range of ecological sensitive area from environmental point of view. The principle of State responsibility revolves around the concept of sustainable development that satisfies the need of the present, without compromising the ability of the future generation. In order to achieve a rational management of resources and to improve the environment, the State should adopt an integrated and co-ordinated approach. Their development is compatible to the need to protect and improve environment with that of population. Knowing the value attached to the importance of environment protection, the Municipality took a balanced approach by planning for the improvement of the town and its people on one hand with environment consideration on the other. The Municipalities owes a duty to provide better motorable roads, free from traffic congestion/bottlenecks and clean and safer roads to its residents. When considering the duty to maintain, support and protect the ecological balance and environment, the Municipality has resolved itself to take adequate measures to maintain the ground water level of that area in addition to the provision of adequate water supply.
32. It is equally true that the Municipality would not initiate any development at the cost of environmental degradation, destruction or violation. At the same time those aspects should not hamper the developmental activities of the Municipality. Therefore, the sole aim of the Municipality is to balance the economic and social needs with that of environment considerations, neither could be sacrificed at the alter of other. The need and necessity for the new bus stand was severely felt as early as 1991. Due to the non construction of the bus stand, the passengers and local public were put to severe hardship and inconvenience. The Municipality is not even in a position to provide basic amenities like rest rooms, toilets, and cloak room to the passengers travelling through Tindivanam Town. For want of adequate bus stand most of the buses stop at NH 45 to disembark and board the passengers. Due to this, the passengers are put severe hardship. Consequently, the Municipality is not in a position to augment its income. The provision of bus stand with modern facilities is long felt and at present, dire need of the town and its residents. The convenience to the general public would be enhanced by the establishment of the bus stand at the proposed site.
33. With regard to road safety and prevention of accidents, it is submitted that the Municipality in co-ordination with NHAI and State Highways has proposed to construct high mast lights in the junction and to widen the roads from the starting point of the bye pass upto the proposed bus stand and from proposed bus stand to the Tindivanam town. It is also seriously contemplating on the installation of signals and speed brakes at the vantage locations so as to avoid accidents. Since, the opening of the Tindivanam bye pass, the traffic within the town of Tindivanam has substantially reduced. This in turn, led to the reduction of movement of traffic within the town of Tindivanam. The proposed bus stand is situated very near to the bye pass, thereby the entry of buses in the proposed bus stand may not cause any problem or traffic hindrance and chances of occurrence of accidents will be considerably reduced. It would be pertinent to mention here the strategic location of the proposed bus stand would serve the local public and commuters, in such a way that all the buses plying from all the directions need not enter the Tindivanam Town and thereby causing bottlenecks.
Therefore, it is humbly prayed that this Hon'ble Court may be pleased to dismiss the above writ petition and thus render justice."
7. No counter was filed by the respondents 1 and 2 in both writ petitions.
8. M.P.No.1 of 2006 in W.P.No.19388 of 2006:- This petition is filed by Mr.S.Venkatesan, praying to grant an interim injunction restraining the respondents from in any manner proceeding further on the resolution dated 13.6.2006 passed by the third respondent in its emergency meeting held on 13.6.2006 pending disposal of the writ petition.
9. M.P.No.1 of 2007 in W.P.No.7243 of 2007:- This petition is filed by Mr.K.V.N.Venkatesan, praying to grant an interim injunction restraining the respondents from in any manner proceeding further on the resolution dated 13.6.2006 passed by the third respondent in its emergency meeting held on 13.6.2006 pending disposal of the writ petition.
10. M.P.No.2 of 2006 in W.P.No.19388 of 2006:- Petitioners seek to implead themselves as party respondents stating that they are councilors of the Municipality. They opposed the establishment of bus stand at the Wakf Board's land stating that it will cause recurring loss to the municipality and the need of the municipality and the public will be best served by putting up the bus stand in the Ery land owned by the Municipality.
11. M.P.No.1 of 2008 in W.P.No.19388 of 2006 and M.P.No.1 of 2008 in W.P.No.7243 of 2007:-
Both the miscellaneous petitions are filed by one A.Moovarku Mudalvan to implead him as respondent in both the writ petitions. Petitioner claims to be a resident from the same locality and supports the stand of the Municipality for establishing the bus stand at the Ery land.
12. The two writ petitions have been filed in public interest. This Court gave its anxious consideration to the contention made by learned counsel appearing for the writ petitioners and the respondents as well as the counsel appearing for the impleading parties.
13. Learned counsel appearing for the petitioners Miss Vaigai submitted that it is the duty of the Municipality and the State to protect the water bodies from all sorts of encroachment. The Government has in G.O.Ms.No.41 dated 20.1.1987 and in the subsequent G.O.Ms.No.186 dated 29.4.2003 made it clear that there should be no encroachment in the Ery, pond or any water bodies and allotment should not be regularised. The proposed bus stand at Tindivanam Ery is opposed to the G.Os. referred to above and also the decision of the Madras High Court and the Apex Court, where it has been clearly held that it is the duty of the Government to protect the water bodies, Ery, Pond, etc. She referred to the following decisions:-
(a) Anti Corruption Movement vs. - Government of Tamil Nadu reported in (2008)1 MLJ 417, wherein the First Bench of this Court in para 7 held as follows:-
"7. Having considered the difficulties expressed by the learned Government Pleader in carrying out the process of removal of encroachments, we pass the following order:
(i) The Secretaries, Public Works Department, in consultation with the respective District Collectors, are directed to decide the programme of evicting the encroachments in the water bodies falling in Categories 'A' and 'B' referred to above, by the end of November, 2007 and complete the process of removal of such encroachments by the end of May, 2008.
(ii) The State Government is at liberty to consider, in appropriate cases, grant of alternative sites for re-location of the encroachers, as per their policy decision. All the authorities concerned like the local authorities as well as the police officials, will extend their full cooperation to the Public Works Department/District Collectors for effectively implementing the policy decision of the Government of removal of encroachments from water bodies.
(iii) No Civil Court shall entertain any suit or proceeding in connection with the removal of the encroachments in the water bodies and every person, who has put up any construction in such water bodies and who is aggrieved by the action taken by the authorities of removal of such encroachment from the water bodies, is at liberty to move this Court under Article 226 of the Constitution of India and all such applications shall be placed before the First Bench of this Court.
(iv) The State Government is directed to identify and take stern action against the land grabbers who have sold the lands in the water bodies to innocent purchasers, which would act as a deterrent. The survey numbers of the lands in various water bodies in question are directed to be notified and the Registration Department concerned is directed not to register any transaction in respect of such lands falling under the water bodies.
(v) In respect of the Porur tank, the respondents have already removed all the encroachments and the said water body is free of any encroachment. In case any encroachment is made on the water body in future, it will be open for the authorities to remove such encroachment even without, issuing any notice to such encroachers.
(vi) It is also made clear that even after the encroachments from the water bodies are removed as per 'the policy decision of the State Government, the respective District Collectors shall keep a close watch over such water bodies and in case of any fresh encroachment thereon, the District Collectors are at liberty to remove the same with the help of police, wherever necessary, without any notice, to such encroachers."
(b) In Hinch Lal Tiwari vs. - Kamala Devi and others reported in (2001)6 Supreme Court Cases 496, the Apex Court held that even if the part of the pond has become dry after the passage of time and is filled up, it does not lose its character as an pond and therefore, the alienation by the Government cannot be justified. In the said decision, the authorities allotted certain plots in favour of certain persons which were cancelled by the authorities and they were challenged before the court. Based on the reports of the authorities and subsequent report submitted to the High Court, the Apex Court held that even if part of the pond became levelled due to passage of time and the balance retained, the dry portion of the pond should not have been converted as house sites. The Supreme Court clearly held that the pond exists and the area covered by it varies during rainy season, no part of it could have been allotted to anybody for construction of any building or any allied purpose.
(c) Learned counsel for the petitioner also relied upon the decision of the First Bench of this Court in Krishnan.L. vs. - State of Tamil Nadu reported in 2005(4)CTC 1. It is the case decided based on the writ petition filed in public interest to remove encroachments in Odai Poramboke. In the said decision rendered on 27.6.2005, the First Bench of this Court held in paragraph 6 as follows:-
"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 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."
In para 14 a general direction was issued by this court and it reads as follows:-
"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 Punjai 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."
14. Learned counsel for the petitioner further pointed out that subsequently in the year 2007 with effect from 1.10.2007, the Tamil Nadu Government has enacted a law for protection of tanks and water bodies and for eviction of encroachments, viz., Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Act No.8 of 2007). It is stated that in view of changed circumstances, subsequent events and passing of the specific law for protection of tanks, which includes the Tindivanam Ery in this case, the Tindivanam Ery land cannot be utilised for putting up the bus stand.
15. Learned counsel for the petitioner also relied upon the decision of the Apex Court in Susetha vs. - State of Tamil Nadu and others reported in (2006)6 Supreme Court Cases 543, to support the plea that Ery land should not be converted to bus stand. The Apex Court held in paragraphs 14, 17, 18 and 19 as follows:-
"14. Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognised in Articles 47 and 48-A of the Constitution of India. Article 51-A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife. (See Animal and Environment Legal Defence Fund v. Union of India, M.C. Mehta (Badkhal and Surajkund Lakes Matter) V. Union of India and Intellectuals Forum v. State of A.P.)"
"17. We may, however, notice that whereas natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if it has fallen in disuse. The same principle, in our opinion, cannot be applied in relation to artificial tanks."
"18. In L.Krishnan the Division Bench of the Madras High Court had been dealing with the natural resources providing for water storage facility and in that view of the matter the State was directed to take all possible steps both preventive as also removal of unlawful encroachments so as to maintain the ecological balance."
"19. The matter has also been considered in some detail by this Court in Intellectuals Forum wherein again while dealing with natural resources, it was opined:(SCC p. 575, para 76) "This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources."
(emphasis supplied) She submitted that the petitioners are agitating only over the use of Ery land for the purpose of putting up of bus stand. She submitted that earlier, the Government taken a decision to put up a bus stand at the Wakf Board's land in G.O.Ms.No.136 dated 15.9.2005 and substantial amounts has also been released and paid. Temporary bus stand was also established in the Wakf Board's land. Since the earlier G.O.Ms.No.101 dated 5.3.2001 was given a go-bye and a new G.O.Ms.No.136 dated 15.9.2005 has been passed, based on the resolution and requirement of the Municipality, the Ery land needs to be protected and the bus stand can be established in the Wakf Board's land. The need of the public is for a bus stand due to congestion of the old bus stand. If the bus stand is located in the Wakf Board's land it will be better served the public cause. She also referred to the recommendations of the various authorities like, Tahsildar, Revenue Divisional Officer which have already been referred to earlier and stated that the authorities have at one point of time stated that the Ery land should not be utilised for putting up of the bus stand. She states that the Government is bound to protect the natural resources, like Ery, keeping in mind the Article 48A of the Constitution.
16. Learned Advocate General Thiru G.Masilamani appearing for the third respondent Municipality stated that the Government has considered the issue in depth and several officers of the Revenue Department upto the level of Collector have inspected several sites in an around the Tindivanam Municipality and after much deliberation have come to conclusion that a portion of the Tindivanam Ery land adjacent to the Highway which has levelled itself due to passage of time is the most appropriate place for locating bus stand. He pointed out the details contained in the inspection report filed pending the writ petitions as additional common counter-affidavit. The same has been extracted earlier. He impressed upon the Court that after taking away 5 acres of Ery land, the balance Ery will be deepened and the water level will increase. The water storage will not reduce and the need of the ayakatdhars will also be taken care of. The apprehension of flooding also will not be there. He further submitted that suitable steps will be taken to protect the balance Ery land and its environment from any misuse or abuse. Learned Advocate General impressed upon the court the need of the public of the Tindivanam for a proper bus stand. Due to increase in population there is a competing demand of the public of the Tindivanam Municipality for an appropriate bus stand. It does not mean that the water bodies can be totally utilised depriving the water source. Both needs have to be taken into consideration while deciding the issue. In the report, the learned Advocate General also pointed out that there are other big Erys around the Municipality which are untouched and sufficient water is available. Therefore, the apprehension that by taking away the 5 acres of the Ery land from Tindivanam Ery, it will cause loss of water table, flooding, loss of water to ayacutdhars, besides, environmental disaster is baseless.
17. The court is aware of the need of the public for a new bus stand, in view of the congestion of the old bus stand which is located inside the municipal town. The court is also aware of the need to protect the water bodies, particularly, Erys, Ponds, Lakes, etc. In a book, by name, The Ery Systems of South India authored by T.M.Mukundan, an Ery is described as follows:-
"An ery (Fig.1) or tank is a reservoir of water contained behind earthen bunds or embankments. Here the bund surrounds the water on three sides. The fourth side is open to the catchment from which water flows down to collect in the ery. Normally the middle of the bund is the deepest portion of the ery and the depth decreases as we go away from the middle of the bund to the sides or flanks of the bund."
According to the author, the main function of the Ery is for irrigation of field for cultivation, viz., the ayakat lands of the Ery. The water flow is regulated by sluice. The Ery also as an arrangement for overflow of water. He also states that the Erys are normally inter-connected where excess water will goes from one Ery to another Ery. The classification of Ery is as follows:-
"Erys which are fed by channels diverted from rivers are known as "System erys" or riverfed erys. Erys which have their own catchment are called "Non-system erys or rainfed erys."
In the present case, the Tindivanam Ery appears to be a rainfed Ery as can be seen from the topography. The author has traced the history of the Ery System under the pre-British India, then under the British System and the Decay of Ery Irrigation System due to passage of time. However, he hasten to add that subsequently the Government has through the Public Works Department have started to maintain the Erys and irrigation. There is a constant demand for water resources to cultivate land for food to feed the hungry millions of this country and lands to provide shelter for the people. In the present case, the bus stand proposal is based on municipality's demand for a public cause. The two needs have to be harmonized so that there is a sustained development. The development on one side should not sound the death knell for another (i.e.) Ery system.
18. Now coming to the factual aspects of the bus stand proposal, we find that in the year 1991, the District Collector based on the difficulty faced by the public in accessing the bus stand situated inside the municipality suggested that the Tindivanam Ery may be considered for locating the bus stand. In the same year, the municipality passed a resolution No.400 seeking permission to enter upon the Tindivanam Ery land. Thereafter for more than two years there was no activity. In January, 1994, the Commissioner of the third respondent Municipality makes a request to the Collector for alienation of the Ery land and the thoppu poramboke. However, on 29.3.1995, the District Revenue Officer by referring to Government Letter No.36864/M/2/92/9 dated 24.11.94 and 65538/M2/93.2 dated 19.12.94 opined that the proposal for transfer of Ery land may be given up and any other alternate site may be chosen. Thereafter, the matter did not proceed further for more than 2 years.
19. In March, 1997, the third respondent municipal council passed a resolution No.612 dated 7.3.1997 and reiterated its plea for locating the bus stand at the Ery site as no other suitable location was available. The Commissioner of third respondent in his letter dated 7.3.97 communicated the resolution No.612 of the Municipality and resubmitted the proposal. Thereafter general notice was issued calling for objections from public with regard to transfer of 1 acre of thoppu land in R.S.No.33/2 and 5 acres of Ery land in R.S.No.36/2 to the Tindivanam Municipality. It is stated that the site was inspected by the Tahsildar, Revenue Inspector and V.A.O., on 16.9.1997 and a proposal has been given in Na.Ka.No.A1/4784/97 dated 9.10.1997 by the Tahsildar. The Tahsildar opined that the land which has to be alienated will not serve any useful purpose in future and it will not affect the ayacutdhars. The Assistant Collector on 24.10.1997 inspected the land and stated that the proposed Ery land and thoppu poromboke land are very adjacent to Trichy-Chennai Trunk Road. He stated that there was no objection in village for the proposed transfer of classification. He further stated that the lands are suitable for the new bus stand of the Tindivanam municipality. He also stated that though the lands in R.S.No.36/5 was classified as Ery poromboke, the ayacutdhar lands are converted to house sites. Hence transfer proposal was recommended.
20. In February 1998, the Tahsildar called upon the third respondent municipality to give the proposal in Form No.24 along with the resolution. In response to this, the third respondent municipality passed a resolution No.473 dated 25.9.1998 requesting for transfer of land from Survey No.33/2 1 acre thoppu poromboke and from R.S.No.36/2 - 5 acres of Ery poromboke, totalling to 6 acres for the proposed bus stand. This was forwarded by the Commissioner to the Tahsildar on 5.10.1998.
21. Thereafter on 9.4.1999, the District Revenue Officer makes an inspection in respect of the above said land and concurs with the opinion of the Assistant Collector dated 24.10.1997 which is already extracted. On 8.11.1999 the Revenue Divisional Officer reports to the Collector in letter ROC No.A3/127/98 stating that the thoppu land in Survey No.33/2 1 acre and Ery land in R.S.No.36/2 5 acres, totally 6 acres can be transferred for the purpose of putting up bus stand for third respondent municipality. He also states that permission to enter into the land can be granted to the third respondent municipality.
22. Technical opinion has been taken stating that the land is fit for locating bus stand. Marakkanam Panchayat Union within whose jurisdiction the proposed land is situate, passed a resolution for alienation of the 6 acres of land on 12.11.1999.
23. On 10.1.2000 the District Collector referring to the inspection made by the Tahsildar, Assistant Collector, District Revenue Officer and other records, was of the view that alienation may be granted to the third respondent municipality in respect of the proposed thoppu and Ery lands for construction of modern bus stand as the third respondent could not locate any other site. The Collector was of the view that by establishing the bus stand, the municipality will have revenue by constructing shop complex, collecting daily entry fee for the bus, and by constructing pay and use toilet, etc. Therefore, after collecting the appropriate value for the land and trees etc., the transfer can be effected. He also referred to municipal commissioner's letter agreeing to pay the value of the land. The Collector further stated that the present site was identified because the municipality could not locate any other place. He further stated that though there is no specific ban, since the land in question is a Ery poramboke he sought the Government''s permission for an exemption order. The Collector further stated that the land sought to be transferred is an elevated area and no water is stored there. He recommended for transfer of the 6 acres of the land as above.
24. Based on the recommendation of the Collector, the Government passed the G.O.Ms.No.101 dated 5.3.2001. While passing the G.O., the Government was of the view that there was no objection from the villagers. The Marakkanam Panchayat Union has no objection. There is no technical ban for transfer of the land and there is no temple, mosque or electric line or monuments. The Government accepted the value fixed by the authorities and issued G.O., by stipulating certain conditions. The first condition is that the transfer is on usual terms and conditions under Boards Standing Order No.24. The land should be properly developed keeping in line with the national highway. Clause 2 is relating to the value. Clause 3 is relating to the charges to be paid for transfer. Clause 4 is exemption by government on account of the transfer of a portion of the water body. Clause 5 is restriction on other uses. Clause 6 is relating to retransfer (i.e.) if the entire or part of land is not used for the purpose, the same should be returned to the Revenue Department. Pursuant to the G.O.Ms.No.101 dated 5.3.2001 payments were made.
25. From March, 2001 till January, 2003, no specific action appears to have been taken. On 14.1.2003 it appears that the possession of the land was given to the third respondent municipality and that is not disputed by the third respondent. According to the respondents, on 27.10.2003, revenue records are changed. Thereafter, the files relating to the project were moving from one authority to other. In October 2003, the design to the proposed bus stand has been finalised.
26. From October 2003 for about 9 months, there appears to be a stalemate, the bus stand proposal did not fructify. Thereafter on 30.7.2004, third respondent municipality takes an "U" turn and passed the resolution No.354 dated 30.7.2004 stating that if the Government decides that the land is not suitable for construction of bus stand, the council recommends that the new bus stand should be put up in the wakf board's land.
27. From the above proceedings, it is clear that the third respondent municipality unable to find a suitable location, has been requesting the revenue authorities to give the Tindivanam Ery land to an extent of 5 acres and the thoppu poromboke land to an extent of 1 acre, totalling 6 acres. Initially in the year 1991 there was objection from the revenue authorities referring to Government letters which clearly stated that Ery land should not be transferred for other use. Thereafter in the year 1997, there seems to be change. The revenue authorities after inspection opined that the land can be transferred. The primary reason for the authorities to recommend the transfer of the land is on the ground that the proposed Ery land is not a low lying land and there is no water in that spot. The ayacut lands are converted to house sites. The proposed land is adjacent to the national high way. Therefore, it will be more suitable for the proposed bus stand. The Collector accepted the value of the land stating that the municipality will earn revenue by exploiting it commercially. The authorities requested for exemption for transfer of the Ery land and exemption was granted by the Government. The Government was primarily concerned with the location of the bus stand at the request of the third respondent municipality. Considering that there was no alternate site, the Government granted the exemption for alienation. There is no discussion with regard to the alienation of Ery land though there is a policy that water bodies, like, Erys, lakes, ponds, etc., should not be alienated, particularly in the light of G.O.Ms.No.41 dated 20.1.1987.
28. On 30.7.2004 another resolution No.354 was passed by the third respondent municipality to construct the bus stand in the land belonging to the Wakf Board. Based on the recommendation by the officers of the department, Government passed the G.O.Ms.No.136 dated 15.9.2005 which reads as follows:
"ORDER:
In his letter read above, the Commissioner of Municipal Administration among other things, has stated that the Tindivanam Municipal Council in its resolution No.395 dated 17.8.2005, has resolved to obtain land for the construction of a New Bus Stand, on lease basis from the Wakf Board. He has further stated that the area of the site is 6 acres and that it abuts the N.H.45 in Survey No.202, of the Gidangal Village belong to the Wakf Board at Mylam Road. He has also stated that the Municipal Council in its Resolution has resolved to obtain the lands on lease basis on the conditions offered by the Tamil Nadu Wakf Board, for an initial period of lease for 3 years, extendable 25 times thereafter. He has indicated that lease rent of Rs.60,000/- per month and an advance amount of Rs.6 lakhs is to be paid to Tamil Nadu Wakf Board for the said land.
2. The Chief Executive Officer, Wakf Board has agreed for fixing a lease amount of Rs.60,000/- per month to lease out 6 acres of the Wakf Board land in Survey No.202 of the Gidangal Village with an advance amount of Rs.6.00 lakhs. He has also stated that it has also been agreed that the Tindivanam Municipality would take all measures to remove the encroachment from the above land.
3. The Government after careful examination accord permission to the Tindivanam Municipality to take over 6 acres of land out of 24.04 acres in Survey No.202 of the Gidangal Village from the Tamil Nadu Wakf Board, on lease basis for construction of a bus stand with the conditions stipulated by the Wakf Board for a lease period of 3 years, extendable 25 times thereafter. The Government also permit the Municipal Commissioner, Tindivanam Municipality to pay lease rent of Rs.60,000/- per month with an advance amount of Rs.6.00 lakhs to the Tamil Nadu Wakf Board."
The Government in this case has not discussed anything about the earlier G.O.Ms.No.101 dated 5.3.2001. There is no reference to the proceedings, whereby the land was transferred to the third respondent municipality, payment of money by the municipality and the various steps taken for the construction of the new bus stand at the Ery site. G.O.Ms.No.136 dated 15.9.2005 proceeds as if the earlier G.O.Ms.No.101 dated 5.3.2001 does not exist. This G.O.Ms.No.136 dated 15.9.2005 was challenged and the writ petition was dismissed. It appears that subsequently lease deed was executed, advance was paid and the inauguration for construction was also taken up. It is stated that in view of the announcement of election, the opening of the bus stand in the Wakf Board land consequent to G.O.Ms.No.136 dated 15.9.2005 is not opened.
29. The bus stand did not come into operation in real terms either under G.O.Ms.No.101 dated 5.3.2001 or the subsequent G.O.Ms.No.136 dated 15.9.2005. For one reason or other, the project became a non starter.
30. Thereafter, on 13.6.2006, the third respondent municipal council passed the impugned resolution No.671 stating that they do not want to proceed with the proposal for putting up the bus stand in the Wakf Board's land. On the contrary, they resolved to proceed with the land brought from the revenue department at the Tindivanam Ery site. When the third respondent municipality passed the said resolution, two Government Orders are in force. It is fairly conceded by the learned Advocate General appearing for the third respondent Municipality that both the Government Orders have not been rescinded or withdrawn. The third respondent municipality has been changing its stand with regard to the place of the proposed bus stand from time to time and the Government appears to be favouring such proposal. In both the Government orders, there is no discussion with regard to merits or demerits of the proposal. There is no reason given in G.O.Ms.No.136 dated 15.9.2005 as to why the earlier G.O.Ms.No.101 dated 5.3.2001 should not be given effect to. There is no discussion on the various proceedings taken with regard to transfer of land to the third respondent municipality. In fact in G.O.Ms.No.101 dated 5.3.2001, it has been clearly stated that if the land is not put to use for the purpose specified, the Government will resume the land and that also has not been done. The Government in the first instance while passing G.O.Ms.No.101 dated 5.3.2001 has not considered the impact of transfer of Ery land for the proposed bus stand, particularly in the light of G.O.Ms.No.41 dated 20.1.1987.
31. After passing of Government Orders in both the cases, there is a stalemate in the putting up the bus stand and that has delayed the whole project from time to time. In the year 2006 when the impugned resolution was passed by the third respondent municipality and during the subsequent period, the utilisation of the water bodies for alternate use came up for scrutiny before this court on several occasions which has already been set out above. The High Courts and the Supreme Court have taken strong objections to use of water bodies, like Erys, lakes, tanks, ponds, etc., for alternate use. The emphasis was on protection of water bodies and removal of encroachment. Several decisions have already been referred to above and the Government cannot shut itself of those decisions and its policy. A specific Act, viz., The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 has also been enacted for removal of encroachment. As rightly stated in the counter-affidavit of the third respondent, it is for the Government to finally decide the issue relating to transfer of Ery land (i.e.) water bodies, or its use for putting up the bus stand, keeping in mind the changed circumstances and the new laws which have been enacted.
32. The Court while deciding a lis can also take into consideration the subsequent events of fact or law which have a material bearing on the issue before it and the relief can be appropriately moulded. The decision of the Apex Court in Ramesh Kumar vs. - Kesho Ram reported in 1992 Supp (2) Supreme Court Cases 623 explains the above said position. The relevant paragraph 6 reads as follows:-
"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (AIR 1941 FC5:73 CLJ 51 : 53 MLW 373), Chief Justice Sir Maurice Gwyer observed:(AIR p.6) "But, with regard to the question whether the court is entitled to take into account legislative changes since the decision under appeal was given, I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In Patterson v. State of Alabama [(1934) 294 US 600], Hughes C.J. said:
'We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered'."
And in Pasupuleti Venkateswarlu v. Motor & General Traders [(1975)1 SCC 770 : (1975)3 SCR 958], Justice Krishna Iyer said: (SCC p.772, para 4) "We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad."
These principles have since been reiterated and reaffirmed in Hasmat Rai v. Raghunath Prasad [(1981)3 SCC 103 : (1981)3 SCR 605]."
Therefore, the new laws enacted and the ruling of Court will have to be considered by the appropriate authority, namely, the Government.
33. In this case, the third respondent municipality has passed resolution in the year 2006 reiterating its earlier view to put up the bus stand in the Ery land. In the counter-affidavit after stating that the municipality is proposing to put up the bus stand at the Ery land, it has been specifically averred by the third respondent that the bus stand will be put up only after the permission is granted by the Government. It is, therefore, for the government to decide the issue one way or the other.
34. The courts have time and again emphasized the Government's role in protecting the water bodies in view of the large number of encroachment. There is also a direction of this court that such water bodies should should be maintained in the larger interest of public. Therefore, the final decision as to whether the bus stand should be located at the Wakf Board's land or at the Ery land has to be decided by the Government keeping in mind the various laws enacted with regard to the protection of water bodies and in the light of various decisions of this court and the Apex Court. No doubt the protection of water bodies, environment is a priority and a necessity. The Municipal towns also need to have a sustained development and should expand horizontally. There is a great necessity for the residents of the municipality for public purpose projects. The congestion in the municipal town has forced the third respondent municipality to look for alternate site to locate the new bus stand. This factor has to be considered fairly taking into consideration several essential parameters. Some have been highlighted in the additional counter-affidavit.
35. In Bombay Dyeing Manufacturing Company Limited (3) vs. - Bombay Environmental Action Group reported in (2006)3 SCC 434, the Apex Court considering the need to protect environment and the need to promote development simultaneously held as follows:-
"The harmonisation of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs."
"The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore intergenerational interest, it is also not possible to ignore the dire need which the society urgently requires."
The above portion of the decision of the Bombay Dyeing case is referred to in the decision of the Apex Court in Susetha vs. - State of Tamil Nadu and others reported in (2006)6 SCC 543, in para 21 and 21.
36. Learned Advocate General appearing for the third respondent municipality stated that the need of the public to have a bus stand is also a compelling necessity and the State has to oblige such needs. The resolution of the municipality is keeping in line with the public demand and therefore, the resolution of the third respondent municipality should not be interfered with.
37. That argument of the learned Advocate General can be accepted, provided the Government on its part, as stated by the third respondent municipality in the counter-affidavit, consider the proposal of the municipality in the light of the various decisions of this court and that of the Apex Court which has already referred to above and the law that has been enacted to protect the water bodies. The government as stated in the third respondent's counter-affidavit has to come to a definite conclusion as to how the interest of the public, will be best served and where the bus stand should be located. This aspect has to be considered by the Government taking into consideration the two Government Orders which have already been issued, viz., G.O.Ms.No.101 dated 5.3.2001 and G.O.Ms.No.136 dated 15.9.2005, both granting permission to put up bus stand in two different locations. We find that the resolution of the third respondent municipality has also been changing from time to time.
38. In the additional counter-affidavit a report has been filed giving certain facts and figures to substantiate the plea that no loss of water will occur by alienating the 5 acres of Ery land, if the rest of the Ery is deepened. Certain details are given as to how the water body will retain the same quantity of water even if the 5 acres of Ery land is alienated and how the environment will be protected. It is based on an inspection. Such technical details can be considered by the Government or by expert body of the Government and not by the court. The court is not competent to go into such details and decide which course will be proper and a correct approach. It is for the Government and its authorities who are technically qualified and competent to deal with such issues. Merely on the basis of the report in the counter-affidavit, we are unable to come to a definite conclusion that the water body will not be affected. Therefore, the decision of the Government becomes relevant in the facts of the present case.
39. We, therefore, feel it appropriate that the Government should look into the proposal and consider the resolution of the third respondent in the light of the law laid down by the courts, viz., High Courts and Apex Court and also keeping in mind the various Government Orders and the law enacted in so far as the protection of water bodies are concerned and decide the issue as to where the bus stand should be located. It is the Government's role to look into the need of public for utilities like the bus stand and also to protect the environment, the water bodies, like, Erys, tanks, ponds, lakes, which provide the source for food and sustenance.
40. In view of the two Government Orders already in force, the Government to make a final decision one way or the other. The court cannot substitute its view as to which Government Order will be more appropriate and should be followed. The Government itself is not definite in its decision. Courts will not supplement its view as to how the Government should proceed in the matter.
41. In view of the above, at this juncture, this court is not inclined to interfere with the resolution of the third respondent municipality or direct the Government to implement a particular G.O. We make it clear that the Government will consider the entire issue afresh and pass an appropriate order taking into consideration the earlier G.O.Ms.No.101 dated 5.3.2001 and the recent G.O.Ms.No.136 dated 15.9.2005 and the various resolutions passed by the third respondent municipality and decide the third respondent's plea for putting up the bus stand. The government while considering this issue has to deal with all aspects that have been highlighted before this court, particularly, the protection of water bodies pollution and allied issues. Till such final decision is taken by the Government, no further steps should be taken for construction for the bus stand.
42. Since the matter is relegated to the Government for its decision, this court is not inclined to issue a writ of mandamus to implement the G.O.Ms.No.136 dated 15.9.2005. The prayer for declaration also stands rejected for the above said reasons. This Court is, however, inclined to issue a mandamus to the first respondent Government to pass appropriate orders as indicated above. Both the writ petitions are disposed of accordingly.
43. The impleading petitions M.P.No.2 of 2006 and M.P.No.1 of 2008 in W.P.No.19388 of 2006 and M.P.No.1 of 2008 in W.P.No.7243 of 2007 are dismissed. The other miscellaneous petitions M.P.No.1 of 2006 in W.P.No.19388 of 2006 and M.P.No.1 of 2007 in W.P.No.7243 of 2007 are closed. No order as to costs.
ts.
To
1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009.
2.Commissioner of Municipal Administration, Chepauk, Chennai-600 005.
3.The Commissioner, Tindivanam Municipality, Tindivanam