IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
W.P. (MD) Nos. 1877, 5626, 13687, 14211 of 2016, 7380, 11757, 16982, 17265 of 2017, 4569, 6692, 9066, 13120, 19770, 19981, 20588, 21262, 22257, 24042, 25055, 25500 of 2018, 328, 793, 907, 982, 2272, 2586, 2797, 3531, 8257, 10104, 11871 of 2019, W.M.P. (MD) Nos. 1628, 1629, 10191, 10192, 10544 of 2016, 4659, 4660, 5302, 6468, 11986, 17552, 17776 of 2018, 267, 650, 738, 818, 2124, 8968 and 8969 of 2019
Decided On: 15.11.2019
A. Muthuraman
Vs.
The District Collector, Madurai District and Ors.
Hon'ble Judges/Coram:
M. Sathyanarayanan and B. Pugalendhi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: T. Lajapathi Roy
For Respondents/Defendant: A.K. Baskarapandian, Special Government Pleader
ORDER
B. Pugalendhi, J.
1. We never know the worth of water, till the Well is dry-Benjamin Franklin.
2. These batch of writ petitions are filed, in the nature of public interest litigations, alleging encroachment in water bodies and to remove the same. Since a common relief has been sought for, all the petitions are heard together and are disposed of by way of this common order.
3. Water is an essential part of life, a gift of nature, not only for Humans, but also for all the living beings. For a thirsty man, a drop of water is worth more than a sack of gold. Though this Earth is covered with 70% of water, only 4% is potable. Realising the importance of water, the Rulers of those days thought it fit to develop plenty of water bodies for the population prevailed then. But, we are now slowly allowing these water bodies to vanish into thin air with the alarming population, forgetting the fact that it is paramount to protect the existing water bodies.
4. In all these cases, it is alleged that the water bodies, viz., Canals, Rivers, Ponds, Tanks, etc., are encroached upon by private individuals, which resulted in shrinkage of the water bodies. Therefore, according to the petitioners, the people, in large, are put to great suffering during off seasons and during rainy seasons, sufficient water could not be stored, as a result, the excess water flows into the residential area. In this regard, they have approached the concerned authorities by way of repeated representations and though, they were assured that action would be taken to remove the encroachments, no effective action is forthcoming and hence, they are before this Court by filing the present writ petitions. It is the specific case of the petitioners that in some cases, the encroachers are influential persons in the Society and therefore, no action has been taken against them and in some cases, those influential encroachers have even obtained patta.
5. The official respondents, though denied the allegation levelled against them, submitted that based on the representations submitted, action has been initiated and they are in the process of identifying the encroachments. They have also submitted that part of the encroachments have already been removed and the remaining encroachments would also be removed.
6. The private respondents/alleged encroachers, on the other hand, totally denied the factum of encroachment made by them in the water bodies. It is their specific plea that they have documents/patta in their names and some vested interested people have filed the present writ petitions.
7. Since the issue involved in the present batch of cases pertains to encroachment in water bodies, we deem it fit to refer to the march of decisions/guidelines issued by the Hon'ble Supreme Court as well as this Court.
8. In L. Krishnan v. State of Tamil Nadu and others, reported in 2005-3-LW-313, a Division Bench of this Court has held as follows:
"4. ...We feel it appropriate to pass this order and give certain other directions to the first respondent State 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."
9. This decision rendered in L. Krishnan v. State of Tamil Nadu was subsequently approved by the Hon'ble Supreme Court in Jagpal Singh) & others v. State of Punjab & others, reported in 2011-3-LW-17, wherein, the Hon'ble Supreme Court has held as follows:
"5. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.
...
17. In this connection we wish to say that out ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years."
10. In the aforesaid decision, the Hon'ble Supreme Court has also issued the following directions:
"22. Before parting with this case, we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose, the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases, e.g., where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
11. After the decision in L. Krishnan's case (cited supra), the State Government of Tamil Nadu has enacted the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, with a view to provide measures for checking encroachments, eviction of encroachments and for the protection of the tanks.
12. The constitutional validity of this Act was challenged in T.S. Senthil Kumar v. State of Tamil Nadu & others, reported in (2010) 3 MLJ 771, that no opportunity was provided in the Statute to the aggrieved parties. A Division Bench of this Court, wherein, one of us [Justice M. SATHYANARAYANAN] was a party to that judgment, has discussed the issue in detail and while upholding the Act, had issued the following directions:
"(a) The State shall scrupulously follow the provisions of the Act. It shall also ensure that all the District Collectors and other authorities, who are concerned with the observance of the provisions of the Act, strictly follow the letter, dated 10.10.2007.
(b) The District Collectors, while creating adequate awareness, may also enlist the help of Self Help Groups to disseminate the message that protection of water resources will actually promote the welfare of the villages and therefore, it is in the interest of every citizen to make sure that he is not encroaching on a tank and to clear tanks and water bodies which are filled with garbage and to avoid dumping of garbage will automatically enhance and improve the public health of the community.
(c) As already stated, the State will ensure that alienation of tank poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The meaning and weight of the words "public interest" shall be implicitly borne in mind.
(d) The State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites or other buildings to come up on such tanks or tank poramboke lands, and water charged lands.
(e) The State shall also bear in mind the provisions of this Act and the objects and reasons of this Act while issuing patta to persons who claim to have resided in the same place for a number of years and if necessary modify the relevant Government Orders to make sure that the implementation of these G. Os. are not in violation of this very valuable and important Act, namely Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.
(f) We uphold the Act, while we provide for observance of principles of natural justice within the Act itself, as under:
(i) When the officer of the Public Works Department publishes the notice in Form-II in the notice boards of the offices of Village Administrative Officer, Village Panchayat Office and the Water Resources Organization, notice shall also be issued to the alleged encroacher to the effect that the survey indicates that the place in his/her occupation is an encroachment and secondly, the notice in Form-III of the Rules may be issued.
(ii) On receipt of the said notice, the encroacher may give his/her objections relating to the classification of the land in his/her occupation and the nature of the encroachment within a period of two weeks.
(iii) Thereafter, the authorities shall consider the objections and pass appropriate orders, in accordance with the provisions of the Act, giving time to the encroachers to remove the encroachment."
13. Even thereafter, a Public Interest Litigation has been filed seeking Patta in water bodies based on G.O. Ms. No. 854 dated 30.12.2006, read with G.O. Ms. No. 372 dated 26.08.2014. In this regard, a reference was made to a larger Bench and the larger Bench of this Court, in T.K. Shanmugam, Secretary, C.P.I. (M) v. State of Tamil Nadu & others, reported in 2015-5-LW-397, has answered the reference as follows:
"45. In the light of the above, we answer the reference on the following terms:-The provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, does not in any manner dilute the observations/directions issued in L. Krishnan v. State of Tamil Nadu reported in 2005-3-LW-313 : 2005 (4) CTC 1, as quoted with the approval by the Hon'ble Supreme Court in Jagpal Singh v. State of Punjab, reported in 2011-3-LW-17 : (2011) 11 SCC 396, and the observations contained in paragraph 20(d)(e) of the judgment of the Division Bench in T.S. Senthil Kumar v. Government of Tamil Nadu, reported in 2010-3-MLJ-771 and that the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the provisions of the Tamil Nadu Land Encroachment Act, 1905."
14. Even after repeated orders of the Supreme Court as well as this Court, the encroachments in water bodies were neither curtailed nor removed. In this context, a Division Bench of this Court in W.P.(MD) Nos. 21346 of 2015, etc, batch, has taken cognizance of the issue and has held that if no action is taken for restoring the water bodies, all water bodies would disappear, thereby, causing irreparable damage to the public at large and also has called upon the Collectors of Southern Districts to file their status reports on the action taken qua removal of the encroachments in the water course and the matter is sub judice before the Court.
15. Though, time and again, specific directions have been given by the Hon'ble Supreme Court as well as this Court, as stated supra, the encroachments in water bodies have not been eradicated in toto. Though actions were taken, here and there, to remove the encroachments, new encroachments are mushrooming on the other hand.
16. In similar circumstances, this Court, in W.P.(MD) Nos. 8676 to 8678 & 21179 of 2018, decided on 18.03.2019, wherein, Myself [Justice B. PUGALENDHI] was a party to that judgment, has held that the encroachers, for their personal welfare, have obliterated the water bodies and thereby, the real nature of the water bodies would either be diminished or altered. The observations made in the aforesaid decision are extracted as under:
"29. Section 8 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 provides for imposing penalties on the encroachers and the concerned officer has to make a complaint in writing. But, in reality, it appears that the officers are not troubling themselves, by preferring complaints against the encroachers. As per Section 11, ibid, the provisions under this Act shall be in addition to and not in derogation of any other law for the time being in force.
30. If anybody damages any property, including a public property, he is liable to be prosecuted under the Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992 (for short "TNPPDL Act"). Section 3 of the TNPPDL Act reads thus:
"3.Punishment for committing mischief in respect of public property:
(i) whoever commits mischief by doing any act in respect of any property and thereby causes damage or loss to such property to the amount of one hundred rupees or upwards; or
(ii) commits mischief by doing any act which causes or which he knows to be likely to cause a diminution of the supply of water to the public or to any person for any purpose or an inundation or; or obstruction to, any public drainage, or
(iii) commits mischief by doing any act which renders any public road, bridge, navigable channel, natural or artificial impassable or less safe for travelling or conveying property; shall be punished with imprisonment for a term which shall not be less than one year but which may extent to five years and with fine;
Provided that the Court may, for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year."
31. The word "Mischief" has been defined in Section 2(2) of the TNPPDL Act, which is profitably extracted hereunder:
"... The express mention of 'damage' in the Section is indicative of the fact that the purview of the offence of "mischief" is not intended to be confined only to cases of "wrongful loss", but also to engulf within it all such cases of damages by unlawful means. Destruction of any property within the meaning of the Section carries with it the implication that something should be done to the property contrary to its natural use and serviceableness.
...
Explanation 3. Mischief causing "diminution of the supply of water" Ingredients:-The physical requisites of such an act are the doing or any act which causes, or to the doer's knowledge is likely to cause a diminution of supply of water.
It is sufficient that the supply of water available for a particular person or class of persons should be diminished by the act of the accused."
32. Penal provision is also available under Section 430 IPC, which deals with the mischief to diminution of water supply and the same is extracted thus:
"430-Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause, a diminution of supply of water for agricultural purposes, or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both."
The expression "diminution of the supply of water for agricultural purposes" in Section 430 IPC cannot be limited to those cases only where the water has been allowed either to go waste or has been diverted for non-agricultural purposes. Any act with the knowledge of the likely consequence of diminution of the supply of water for agricultural purposes or for food or for drinking by human being or by animals can also be made liable under this Section.
33. In the present case, for years together, the encroachers, not only enjoyed the Vaviyarenthal Kanmoi, which is coming under the control of Public Works Department, i.e., Government land, but also obliterated the water body. Therefore, the encroachment as well as obliteration as regards water bodies would attract the offence under Sections 425 & 430 of the Indian Penal Code and Section 3 of the TNPPDL Act, besides Section 8 of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act. The Government is incurring huge expenses for restoring the water body to its original state and therefore, in addition to prosecution, damages has to be recovered from the encroachers for the restoration activities."
17. Since State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations, this Court, in the aforesaid decision, while summing up, has also suggested the Government to draw a scheme,
i) not only to remove the existing encroachments, but also to prevent the encroachments in future;
ii) to cast certain responsibilities and duties upon the authorities concerned so as to prevent and eliminate the encroachments in water bodies;
iii) to register cases under the Tamil Nadu Property (Prevention of Damage & Loss) Act in cases of encroachments, where the water bodies have been damaged/disturbed and the natural course has been affected; and.
iv) to recover damages from the encroachers for the restoration activities in the water bodies.
18. In fact, in the recent past, a Division Bench of this Court, in W.P. 10821 of 2017, dated 29.04.2019, has quoted a poem, explaining the importance of water, written by the well known Tamil Poet, Avvaiyar, while dealing with similar such issue and this Court feels it pertinent to refer to the same:
19. Admittedly, the private respondents, whom were alleged to be encroachers by the petitioners, have denied the allegation and it is their submission that they have valid documents in their favour. Be that as it may, as stated supra, this Court in T.S. Senthil Kumar v. State of Tamil Nadu & others has already upheld the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, which was enacted by the Government to provide measures for checking encroachments, eviction of encroachments and for the protection of the tanks, with certain directions and in T.K. Shanmugam, Secretary, C.P.I. (M) v. State of Tamil Nadu & others, has held that the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the provisions of the Tamil Nadu Land Encroachment Act, 1905.
20. Therefore, the official respondents are directed to remove the encroachments, after putting the encroachers on notice, in accordance with the existing provisions of law, as expeditiously as possible, keeping in mind the directions issued by the Hon'ble Supreme Court as well as this Court, as discussed supra. It is made clear that the private respondents/alleged encroachers are entitled to raise their objections during the enquiry and after considering their objections, the official respondents/concerned authorities shall pass appropriate orders. The entire exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order.
With the above observations and directions, these batch of writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
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