IN THE HIGH COURT OF JUDICATURE AT MADRAS MADURAI BENCH (Special Original Jurisdiction) W.P.(MD)No. of 2020 J. John Amalraj, Secretary, Ramanathapuram District Consumer Right Protection Association, Registration No. 34/2014, Santhiya Nagar, Ariyankundu Post, Thangachi Madam, Rameswaram Taluk, Ramanathapuram District. …Petitioner
IN THE HIGH COURT OF JUDICATURE AT MADRAS
MADURAI BENCH
(Special Original Jurisdiction)
W.P.(MD)No. of 2020
J. John Amalraj,
Secretary,
Ramanathapuram District Consumer Right
Protection Association,
Registration No. 34/2014,
Santhiya Nagar, Ariyankundu Post,
Thangachi Madam,
Rameswaram Taluk,
Ramanathapuram District. …Petitioner
Vs.
- The State of Tamil Nadu,
Rep. by its Chief Secretary,
Public Works Department,
St. George Fort,
Chennai. - The District Collector,
Ramanathapuram,
Ramanathapuram District. - The Chief Engineer,
State Ground and Surface Water
Resources Date Centre,
Tharamani,
Chennai. - The Divisional Railway Manager,
Divisional Railway Managing Office,
Southern Railway,
Madurai 625 015. - Mr. Kulathungan,
Contractor,
Jegatheswari Construction,
Rameswarm,
Ramanathapuram. … Respondents
AFFIDAVIT OF THE PETITIONER
I, J. John Amalraj, son of John, Christian, aged about 44 years and having office at No. 19/56, Olaikadu, Rameswaram, Ramanathapuram District temporarily come down to Madurai do hereby solemnly affirm and sincerely state as follows:1st page
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1) I am the petitioner herein and as such I am well acquainted with the facts of the case.
2) I respectfully state that I am filing the above writ petition praying this Hon’ble Court to issue a WRIT OF MANDAMUS restraining the 3rd and 4th respondent from illegal construction of well at Meyyampuli, Nochivadi, and Semmadam region, Rameswaram, Ramanathapuram and direct the 1st respondent to take appropriate action against the same and consequently direct the 1st respondent to adopt The Model Bill for The Conservation, Protection, Regulation and Management of Ground Water, 2016 within the period that may be stipulated by this Hon’ble Court and thereby render justice.
- I am filing this writ petition in the interest of public as a pro bono publico and I have no personal interest in filing this writ petition. I give an undertaking to pay any cost if this Hon’ble Court finds that this writ petition is intended for personal gain or has been filed with ulterior motive. Further I submit that I have filed this petition out of my own funds. I submit that to my knowledge no public interest litigation arising on the same issue has been filed. I had already filed a public interest litigation regarding the similar issue to take action against the illegal extraction of ground water in and around Rameswaram area in WP (MD) No. 5965 of 2017 and the same came to be allowed by this Hon’ble Court in its order dated 20.06.17. My Aadhar Card number is 3747 1586 9926 and my pan card number is ALNPJ5617Q.
3) I respectfully state I am a permanent resident of Rameswaram and the secretary of the Ramanathapuram District Consumer Right Protection Association indulged in welfare activities for the people in and around Ramanathapuram. I submit that the Rameswaram an island having a narrow landscape and the breath and width of the
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island is comparatively low and was surrounded by sea on the all the sides having only an extent of 37 Sq. Miles. I submit that because of the presence of sea on the all sides of Rameswaram several parts of the island is having only saline water and only some the areas where the drinking waters can be found. Even in those areas illegal water plants are functioning without any permission from the authority concerned and were taking water illegally without any prior permission and were depleting the water resources of the island seriously ensuing drinking water scarcity all over the island and making the island not fit for dwelling.
4) I respectfully state that I had received information under the right to information act from the dated 01.03.16 stating that only 4 persons were permitted to extract water and to sell the same commercially in and around Ramanathapuram. Further it was also informed that no other persons were given license or permission to extract water for commercial purpose anywhere in the Rameswaram Island by 3rd respondent by its communication dated 08.12.16. It would not be out of place to mention here that The Tamil Nadu Ground Water (Development and Management) Act, 2003 is the only legislation regulating the illegal extraction of ground water and other connected issues. But the same came to be repealed by the 1st respondent on 14.09.13 with an object to bring a better legislation. But even after passing of 7 years no proposals were made or any other bills had be at the anvil to bring any legislation regarding the protection and regulation of Ground Water in Tamil Nadu.
5) I respectfully state that the 1st respondent had issued and government order to regularize the extraction of ground water for commercial purpose and drinking purpose in G.O. Ms. No. 142 dated 23.07.14. As of now the extraction of Ground Water is regularized by this Government order in the state of
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Tamil Nadu and no other legislation or any rules had been in vogue for the present situation. Hence the extraction of ground water could be done only in accordance with the manner stipulated by the above government order.
6) I respectfully state that GO (MS) No. 142 prohibits no permission to extract ground water should be granted within 10 kms radius of the coastal area. At the same time entire Rameswaram Island is only having the radius of less than10 kms throughout the island and hence it is not possible to grant any permission in and around the island. Notwithstanding the same because of illegal and huge amount of extraction of ground water in Rameswaram the same had resulted in penetration of sea water with the ground water as a result Fluroide, Arsenic and iron get mixed with the ground water and making the ground water toxic and also making the Rameswaram Island unfit for human survival. As per the report of the 3rd respondent the Rameswaram was categorized as semi critical zone for extracting ground water. But notwithstanding all the things some persons for their personal benefits and for money had been extracting ground water by having plants at different places and were engaged with the illegal business and were depleting the natural resources. Hence I made a representation to the respondents to stop illegal extraction of ground water for commercial purpose and also to take action against them. Despite receiving my representation the respondents had not taken any suitable action nor passed any orders on my representation for the reasons best known to them. Hence I was constrained to approach this Hon’ble Court by filing writ petition in W.P. (MD) No. 5965 of 2017 and this Hon’ble Court by its order dated 22.02.17 had directed the respondents to take appropriate action within one month. The relevant portion of the order is extracted as under:
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“4. In fine, this writ petition is allowed without costs. The respondents are directed to look into the representations dated 21.11.16 and 31.01.17 alleged to have been given by the petitioner within a period of one month and take appropriate action.”
7) I respectfully state that the official respondents failed to comply with the order passed by this Hon’ble Court in W.P (MD) No. 5965 of 2017. Hence I filed a contempt petition in Cont. P (MD) No. 2096 of 2017 and this Hon’ble Court seized of the matter and had also passed several directions in order to make the respondents to comply with the contempt on 19.01.18, 22.12.18 26.02.18 and 13.03.18 respectively. In view of the repeated orders passed by this Hon’ble Court the 2nd respondent by its proceedings dated 22.12.18 communicated the Block Development Officer seeking steps taken against the person extracting ground water illegally without any permission. The proceedings 22.12.18 was put to challenge by one Mr. R. Vijayakumar in W.P. (MD) No. 2954 of 2018, the Learned Single Judge by an order dated 27.02.18 was pleased to grant an interim direction by its order dated 27.02.18. But the said writ petition came to be dismissed by this Hon’ble Court by its order dated 04.07.18 holding that the petitioner Mr. Vijayakumar is not having any locus standi to maintain a writ petition.
7) I respectfully state that the said Mr. Vijakumar filed a writ appeal in W.A. (MD) No. 1156 of 2018 challenging the order passed by the Learned Single Judge and the Division Bench of this Hon’ble Court had tagged Cont.P (MD) No. 2096 of 2017 along with said writ appeal and disposed the same by its order dated 24.10.18 and the relevant portion of the same is extracted as under:
“6. However, considering the facts and circumstances of the case, we direct the first respondent to look into the matter and draw picture and formulate a scheme, if law provides so, for regulating supply of water. The first respondent
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shall also take note of the scope of applicability of G.O.Ms.No.142, Publics Works (R2) Department dated 23.07.2014 while doing so. The above said exercise will have to be done by the first respondent within a month from the date of receipt of a copy of this order. - Accordingly, this Writ Appeal is dismissed with the above direction. No Costs. Consequently, connected miscellaneous petitions are dismissed.
- In view of the order passed in the W.A.(MD).No.1148 of 2018, Contempt Petition(MD).No.2096 of 2017 stands closed. After completing the aforesaid exercise, the decision of the first respondent will have to be communicated to the contempt petitioner. “
8) I respectfully state that subsequent to the same the 2nd respondent without considering the GO (MD) No. 142 by his proceedings dated 30.11.18 had regularized the extraction of ground water contrary to the above Government order. Hence aggrieved by the same I filed a writ petition in WP (MD) No. 3850 of 2019 and this Hon’ble Court by its order dated 24.04.19 was pleased to grant interim stay and interim injunction and the matter is pending as such.
9) I respectfully state that it would not be out of place to mention here that the GO (MD) No. 142 had also been upheld by the Principal Bench of this Hon’ble Court in batch of writ petitions in W.P Nos 28535 of 2014 by its order dated 03.10.18 and certain other directions were also came to be issued in order to regulate the extraction of ground and the same is extracted as under:
“109.Coming to the regulatory part of the Extraction of Ground Water, all these commercial establishments, as discussed in the aforementioned paragraphs, implementation of the regulations are certainly imminent and the same is lacking on account of proper Mechanism and guidelines. Thus, this Court is inclined to pass the following orders:
(1) The impugned order of regulation issued by the 1st respondent in G.O.Ms.No.142, dated 23.07.2014 is confirmed.
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(2) The respondents are directed not to grant licence, No Objection Certificate (NOC) or permission for the commercial establishments / person to extract ground water for commercial usage in the absence of fixation of water Flow Meter on the Board outlet, which is to be inspected.
(3) The respondents are directed to inspect the functional quality and other established standards of the Flow Meters fixed by the persons, who all are applying for permissions / No Objection Certificate (NOC) and at the time of granting permission / No objection Certificate (NOC), the Flow Meter should be sealed properly by the respondents / Public Works Department (PWD) officials.
(4) The Flow Meter must be sealed in such a way to prevent any tampering by any person. Quantum of Water to be extracted by individuals, are to be fixed periodically as per the assessment to be made by the P.W.D. Authorities as per the Regulations.
(5) The respondents are directed to measure the quantum of water extracted by the establishments / persons by taking meter reading every Month and accordingly, the same is to be regulated.
(6) The respondents are directed to follow all other terms and conditions fixed for grant of licence / permission for Extraction of Ground Water for commercial usage as per the guidelines issued in G.O.Ms.No.142, Public Works Department dated 23.07.2014.
(7) The respondents are directed to register the Police complaint in the event of identifying any excess Extraction of Ground Water by tampering the Flow Meters sealed or by any other means by any person. The case must be registered Under Section 379 of Indian Penal Code (IPC). In addition, if the water is wasted for causing wrongful loss, then Section 425 of the Indian Penal Code (IPC) will also attract.
(8) The respondents are directed to suspend the licenses by issuing show cause notices and by providing an opportunity to the persons, who have involved in the offence of theft or violation of all other conditions stipulated in the Government Regulations, or if a criminal case is registered. If any person is convicted, then he shall be permanently debarred from getting licence for Extraction of Ground Water.
(9) The District Collectors of all the Districts in the State of Tamil Nadu are directed to issue suitable directions / orders to the Revenue Divisional Officer, Tahsildars and all other officials concerned to inspect and monitor the Extraction of Ground Water by the persons for commercial usage.
(10) The District Collectors of all the Districts are directed to constitute monitoring committees to monitor the Extraction of Ground Water by the individuals for commercial purposes.
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(11) Each Monitoring Committee appointed by the District Collector concerned, shall consists minimum of five persons and the Committee is empowered to monitor the Extraction of Ground Water for commercial purposes by the individual persons and commercial establishments.
(12) The Monitoring Committee shall consists of the following persons:
(i) The District Environmental Engineer from Pollution Control Board of the State of Tamil Nadu.
(ii) One qualified Public Works Department (PWD) Engineer from Water Resources Department.
(iii) The Assistant Director of Zoology and Mining of the State Government.
(iv) The Revenue Divisional Officer of the concerned locality.
(v) One nominee from the office of the Chief Engineer, Central Ground Water Board of the Government of India.
(13)The Monitoring Committee is entitled to collect proofs and documents in respect of the Extraction of Ground Water illegally and excessively by any person and submit a complaint / report to the District Collector concerned, who in turn, after verifying the same, shall register a complaint with the Jurisdictional Police for registering a criminal case under the provisions of Indian Penal Code (IPC).
(14) It is needless to State that, only in the event of compliance of the regulations and conditions imposed in this order, the persons / establishments shall be allowed to extract the Ground water for commercial usage or for commercial purposes.
(15) The 1st respondent / Secretary, Public Works Department is directed to issue a consolidated instructions in this regard based on the order passed in the present writ petitions to all the District Collectors, enabling them to implement the Court orders promptly.
110.With these observations and directions, all these writ petitions are disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.”
Further as the direction issued by the Principal Bench of this Hon’ble Court had not been complied with a suo motto contempt came initiated and repeated directions were passed and the matter is pending as such.
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10) I respectfully state that while the matter stood thus the 3rd respondent had directed the 4th respondent to construct 4 wells at Meiyampulli, Noochivadi and Semmadam area of Rameswaram without getting any requisite permission and against the principles enforced in GO (MS) No. 142. It is pertinent to mention here that the 3rd respondent is totally having 16 wells for extraction ground water in and around the same place and most of the wells had been depleted and abandoned by them as the water become salty. Because of the huge extraction of ground water by the 3rd respondent the water in the well constructed by them would become salt water that means penetration of salt water content in it and by the same it had abandoned several wells in the same area.
11) I respectfully state that there are 4 wells constructed by the Local Panchayat and Municipality serving the drinking water purpose of the general public and the 3rd respondent had proposed to construct 3 wells in the same area that too within 200 meter distance from the above wells. If the 3rd respondent through the 4th respondent is permitted to construct the well, other wells serving the general public would be greatly affected and they would be seriously prejudiced. Further the proposed construction of well by the 3rd respondent would make the ground water in said place unfit for human consumption and resulting in huge loss for the entire community. Further the drinking water is available only within the said area above mentioned and there are water plants such as Mara Bisleris and other plants extracting ground water in the same area neither without any permission nor without any license from the authorities concerned. But the 1st respondent had not initiated any action against the illegal extraction of ground water by the said persons for the reasons best known to them.
12) I am advised to state that as per GO (MS) No. 142 the government or its instruments are not required to get No Objection Certificate from the 2nd respondent but at the same
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time they had get clearance from the Water Utilization Committee if the same is used for drinking water purpose. But the 3rd respondent is not presently constructing the well for drinking water purpose and they had to get clearance from the 3rd respondent. Further the present well constructed is not for the utilization of Government as most of the sectors is being privatized and as such the same cannot be by any stretch of imagination can be for the purpose of Government.
13) I respectfully state that as already stated above as per GO (MS) No. 142 no permission can be granted to any persons within 10 kms of the Coastal area and they are categorized as Non Permissible Categories. But the site proposed by the 3rd respondent is within 2 kms from the sea and there is every chances of sea water intrusion and in that circumstances the general public would alone be put to utmost hardship and irreparable loss. Further the Thangachimadam Panchayat, Rameswaram had also passed a resolution opposing the construction of well by the 3rd respondent and had also passed resolution opposing the same. Hence I made a representation to the respondent on 04.07.20 and due to urgency the same was also sent through mail. But even after receiving the representation no action had been forthcoming from them for the reasons best known to them. Unless this Hon’ble Courts restrains the 3rd and 4th respondent from constructing the well and direct the 1st respondent to adopt the Model Bill for Protection, Regulation and Management of Ground Water, 2016 general public would be put to utmost hardship and irreparable loss. Hence having no other efficacious alternative remedy, I am constrained to approach this Hon’ble Court by invoking its extraordinary jurisdiction conferred under Article 226 of the Constitution of India for the following among other
G R O U N D S
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i. The 3rd respondent had been proposed to construct a well for extraction of ground water without any permission from the authorities concerned and had been proposed to construct the same illegally. The said construction of well is nothing but an abuse of process of law.
ii. The G.O (MS) No. 142 makes it clear that 10 kms from the coastal region are categorized as Non Permissible Area and as such no permission cannot be granted to the 3rd respondent for the reason that the proposed construction site falls within less than 2 kms from the sea. Hence there are every chances of sea water intrusion into the said well and making the entire ground water unfit for human consumption.
iii. The GO (MS) No 142 does not stipulates any penal action or the concerned authority for taking any action against the violator and as such a legislation to that effect is the need of the hour. The central government considering the necessity of the said legislation had directed the states either to adopt or to frame the said legislation. The several states in India either having their own legislation or had
adopted the Model Bill as drafted by the Central Government. Hence it is just and necessary the 1st respondent to pass suitable legislation at the earliest point of time.
iv. The 1st respondent ought to have seen that The Tamil Nadu Ground Water (Development and Management) Act, 2003 came to be repealed with an objective to bring a new legislation but till date no act had been passed by the State. Further the G.O (MS) No. 142 is also insufficient in certain areas and is not a comprehensive code and is not a statutory legislation.
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It is therefore prayed that this Hon’ble court may pleased to grant an AD INTERIM INJUNCTION restraining the 3rd and 4th respondent or his men or agent from constructing the well at at Meyyampuli, Nochivadi, and Semmadam region, Rameswaram, Ramanathapuram pending disposal of the present writ petition and thereby render justice.
In these circumstances, it is prayed that this Hon’ble Court is pleased to issue a WRIT OF MANDAMUS or any other writ or order or direction in the nature of a writ restraining the 3rd and 4th respondent from illegal construction of well at Meyyampuli, Nochivadi, and Semmadam region, Rameswaram, Ramanathapuram and direct the 1st respondent to take appropriate action against the same and consequently direct the 1st respondent to adopt The Model Bill for The Conservation, Protection, Regulation and Management of Ground Water, 2016 within the period that may be stipulated by this Hon’ble Court and pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice.
x
Solemnly affirmed at BEFORE ME
this the 08th day of July 2020
and signed his name in my
presence.
ADVOCATE: MADURAI
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No. Corrns.
