SEKAR REPORTER

Court News from Madras High Court

This Hon’ble Court has banned all types of construction activities in Marsh lands vide the order in Crl.O.P. No. 4413 of 2013 dated 18.11.2016 . Pursuant to this order , the

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

 

 

W.P. No.                   of 2020

 

 

I.H. Sekar,

Managing Trustee of ‘ The Nature Trust ’,

No.20, Dr. Nanjunda Rao Road,

Injambakkam, Chennai -600 115                             ….     Petitioner

 

—Vs—

 

  1. The Additional Secretary to Government

of Tamil Nadu,

Revenue and Disaster Management Department,

Fort St. George,  Secretariat, Chennai -600 009

 

  1.  The Commissioner of Land Administration,

Land Administration Department,

Ezhilagam, Chepauk,Chennai -600 005

 

  1. The District Collector,

Chennai District,

No.62, Rajaji Street, 4th Floor,

Chennai – 600 001

 

  1. The Principal Secretary to Government

of Tamil Nadu,

Public Works Department,

Fort St. George, Secretariat, Chennai -600 009

 

  1.   The Chief Secretary,

Government of Tamil Nadu,

Ex-Officio Chairman,

State Disaster Management Authority,

Fort St.George, Chennai -600 009

 

  1. The Chairman,

Tamilnadu State Wetland Authority,

Environment and Forest Department,

Secretariat, Fort.St. George,

Chennai – 600 009

 

  1. The Director,

Indian Statistical Institute,

MGR Knowledge City, CIT Campus,

Tharamani, Chennai -600 113                                             … Respondents

 

AFFIDAVIT OF THE PETITIONER

 

I, I.H. Sekar, S/o. Late Harikrishnan, Hindu, aged  62 years, Founder and Managing Trustee “The Nature Trust” , having office at No. 20, Dr. Nanjunda Rao Road, Injambakkam, Chennai –    600 115, do hereby solemnly affirm and sincerely state as follows :

 

  1. I am the Petitioner herein and as such I am well acquainted with the facts and circumstances of the case and competent to swear this Affidavit.

 

  1. The Petitioner is the Founder and Managing Trustee of the    “Nature Trust” which is formed for the objective of protecting the environment,  the Natural Resources and also  the Government Poramboke lands, water ways, grazing lands etc., against encroachments . The Petitioner’s Trust has been instrumental in retrieving several Acres of Government wet lands in the recent past from encroachments and illegal alienations  apart from   promoting  several social welfare measures for fishermen in the coastal areas of Chennai  .

 

  1. The Petitioner states that the sole  purpose of filing this Writ Petition  in Public interest  is to seek  a  Writ of Certiorarified Mandamus or any other Writ, order or direction in the nature of a Writ to call for the records of the Government Order in G.O.(Ms) No. 155 Revenue [LD7(2)]  Department dated.16.05.2014  issued by  the  1st Respondent transferring  an extent of  23.80 Hectares out of 15.30.00 Hectares of land in S.No.176 of Karapakkam Village, Sholinganallur Taluk, Chennai District in favour of 7th   Respondent and to quash the same  and consequently direct the 3rd  Respondent to cancel the revisions made in the revenue records pursuant to the Impugned Order.

 

  1. The Petitioner further states that   Appx. 38 Acres of  lands   in  S. No. 176 of Karapakkam Village, Sholinganallur Taluk, Chennai District , hereafter described as “the said land”,  is shown as “Backwaters”  in  the Revenue Records.  The said  land , lying adjacent to Buckingham Canal,  is a   Wetland which the Respondents are legally bound to protect and preserve  from alienation ,  reclassification or conversion into  alternate uses.  The Dictionary meanings of ” Back Waters ”  as reproduced below shall clarify the status of the Said Land .

 

” Back Waters : a body of water (as an inlet or tributary) that is out of the main current of a larger body  or a body of water that was created by a flood or tide or by being held or forced back by a dam”.

  1.     The Petitioner further states that  Buckingham Canal receives excess water from Pallikkaranai Marshlands   through  ” Thoraipakkam- Okkiam Channel ”  and discharges it  into the sea and  acts as a protective shield around  the Chennai City . It also helps to  avoid / mitigate  the effects of floods during excess rains and high tides such as Tsunami. There are large tracks of  lands categorised , as  “Back Waters” , lying on either sides of Buckingham Canal    which act as buffer areas  to store the excess water entering  the Buckingham Canal  and  thereby prevents wastage of water  into the Sea .  The Said lands also facilitate the recharging of Wells/ ponds, etc.,  in the nearby Villages and provide an aquifer effect  . A layout sketch of the Buckingham Canal is kept in the typed set of papers for better appreciation of the site.

 

  1. The Petitioner further states that the Respondents , who are duty bound to protect and preserve Water bodies and Water areas/ Wetlands such as the said  lands , have  neglected their primary responsibility  and  sub-divided and transferred  3.23.8 Hectares in S. No. 176   of the said land   to the                                  7th Respondent to establish a campus for Indian Statistical Institute, Chennai Centre through a G.O.(Ms) No. 155, Revenue [LD7(2)] Department dated 16.05.2014 . While the objectives and functions of the Statistical Institute are laudable, the issue is whether it shall outweigh the importance of preserving wetlands which are called the “ kidney of the nature “.

 

  1. The Petitioner further states that as soon as he came to know about the above transfer of Back Water lands to the 7th Respondent , he had filed an Application before the Hon’ble National Green Tribunal, Southern Zone, in Application No. 247 of 2016 seeking to restrain the Respondents   from proceeding with any type of construction activities in the above Backwater lands   . The Hon’ble Tribunal has however disposed of the above application vide the final order dated 18.02.2020 on the ground of lack of  jurisdiction and has given liberty to the Petitioner to approach appropriate forum to seek remedy.

 

  1. The Petitioner further states that as the Jurisdiction of the Tribunal is restricted to  Sec. 14 r/w Schedule 1 of the National Green Tribunal Act, 2010, it has become necessary to approach this Hon’ble Court under Art.226 of the Constitution to seek quashing of the Impugned order through which a portion of the said Property has been transferred in  favour of 7th  Respondent for construction of buildings / campus.

 

  1. The Petitioner further states that the above  transfers of    “ Backwater  lands”  shall constitute gross violation of   the dictum laid in several Judgements / decisions of this Hon’ble Court and the Hon’ble Supreme Court on the subject matter regarding the need to protect Water bodies/ Wetlands/ Water Areas .  Some of those decisions / Judgements which are relevant to the present case are listed below :

 

(i) Full Bench Judgement of this Hon’ble Court reported in    2015-5-L.W.397 regarding the duty of the State  to protect Water bodies from alienations / Transfers / encroachments .

 

(ii)  Order in W.P. No. 30951 of 2016 dt. 06.09.2016 in which this Hon’ble Court has held that the above Full  Bench Judgement shall be applicable to all categories of Wetlands also .

 

(iii) Judgement of the Supreme Court reported in (2011) 11 SCC 396     Dt. 28.01.2011 enunciating on the Principal of “Public Trust Doctrine”  and the Responsibilities of the State in protecting natural and communal properties.

 

(iv) The order of the Hon’ble Supreme Court of India dated 08.02.2017 in W.P.(Civil) No. 230 of 2001 directing all the State Governments to apply the Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 to the Wetlands of 2.25 Hec. and above , irrespective of the fact whether such Wetlands are notified or not. The Hon’ble Supreme Court has further directed to notify the revised Wetlands,  (Conservation and Management) Rules, 2016 before 30th June 2017.  It is to be noted that Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 prohibits reclamation and conversion of Wetlands for non-Wetland uses.

 

(v)   (1997) 1 SCC 388 dated 13.12.1996 – M.C.Mehta Vs.. Kamalnath

and Ors. regarding the doctrine of Public trust of of natural

resources.

 

(vi)   (2010) 3 MLJ 771 dated 10.02.2010 – T.S. Senthil Kumar Vs..  Government of Tamilnadu rep. by its Secretary, PWD regarding the importance and the duty to protect Wetlands and Water bodies by State

 

(vii)  (2008) 1 MLJ 417 dated 04.10.2007 – Anti Corruption Movement Vs.. Govt. of Tamil Nadu on the need to protect and preserve the Water bodies.

 

(viii)  2016- 1-LW. 168 Dated  27.11.2015  — T.K. Shanmugam Vs..   The State of Tamil Nadu directing eviction of encroachments from Water bodies.

 

(ix)   Crl.O.P. No. 4413 of 2013 dated 18/11/2016 – Lakshmanan and Azhagiri Vs.. The State by Inspector of Police, Central Crime Branch-II, Chennai , banning construction activities on Marchlands.

 

(x)  W.P. No. 40571 of 2015 dated 22.12.2015  – E.Thirugnana Selvam Vs.. The Secretary to Government of Tamilnadu, Revenue Department directing that Wetlands shall not be reclassified into house-sites.

 

(xi) W.P.No. 10821 of 2017 dated 24.04.2017 – I.H. Sekar Vs.. The Principal Secretary to Government Tamilnadu and Ors.,

 

  1. The Petitioner further states that the Tamilnadu Government has constituted the  “Tamilnadu Wetland Authority” vide the  O.No. 24 dated 15.06.2016 for the protection and preservation of Wetlands in the interests of maintaining ecological balance and other benefits as stated therein.   As custodians of such properties  in Public trust , it shall be  incumbent on all the Respondents  to protect the remaining Wetlands/ Water Areas  of the State  in the interests of future mankind and to avoid the consequences of floods, damages to flaura and fauna, etc.,

 

  1. The Petitioner further states that the above lands act as  buffer storages of excess  water during rains which get discharged from Pallikkaranai Marsh lands into the Buckingham Canal through “Thoraipakkam-Okkiam-Madav” .  It also  facilitates recharging of wells, tanks, etc. in the nearby localities through “Aquifer effect” apart from forming a home for large extents of flaura and fauna and living creatures. Any construction activities in the above lands shall cause irreversible damages and destructions to the above and hence need to be prevented in the interest of environmental protection and to ensure the safety and security of living creatures including human beings in the nearby villages.

 

  1. The Petitioner further states that  this Hon’ble Court has Restrained the Respondents through an Order  in Crl.O.P. No. 4413 of 2013 dated 18/11/2016 from carrying out constructions, alienations and transfers  of all lands in Pallikaranai marshland areas  and have sought  details of existing constructions  for issuing   further directions in the matter.

 

  1. The Petitioner further states that in view of  the above settled position of law and binding precedents , the G.O.(Ms) No. 155, Revenue [LD7(2)] Department Dated 16.05.2014 through which the above transfer of 3.23.80 Hectares of ‘ Backwater lands” in S. No. 176 of Karapakkam Village, Sholinganallur  Taluk in favour of 7thRespondent is liable to  be  quashed being void and un-enforceable .

 

  1. The Petitioner further states that the total area of marshlands in Pallikaranai area has shrunk to less than 10 % of what it was about 40 years ago.  It has resulted in more quantity of Water flowing into the Buckingham Canal during rains than what it used to be earlier. Hence it is very much necessary that at least  the existing  Wetlands/ Water Areas  and marshlands are protected from further extinction by preventing any kind of transfers / alternate usage which would destroy the basic nature and use of such water bodies and cause floods. The accompanying photographs shall reveal the condition of the said lands during 2015 floods which caused large scale destructions of life and properties in these areas.

 

  1. The Petitioner , who is  left with no other alternative remedy,  is constrained to move this Hon’ble Court under Art.226 of the Constitution of India by seeking a Writ of Certiorarified Mandamus or any other Writ, order or direction in the nature of a Writ to call for the records of  the Government Order in G.O.(Ms) No. 155 Revenue [LD7(2)]  Department dated.16.05.2014  issued by  the  1st Respondent transferring  an extent of  23.80 Hectares out of 15.30.00 Hectares of land in S.No.176 of Karapakkam Village, Sholinganallur Taluk, Chennai District in favour of 7th   Respondent and to quash the same  and consequently direct the 3rd  Respondent to cancel the revisions made in the revenue records pursuant to the Impugned Order for the following among other grounds.

 

 

GROUNDS

 

(i)  The Final Division Bench Judgment dated 18.04.2019 delivered in WP No. 10821 of 2018  shall squarely apply to the facts and circumstances of the present case as the nature and orientation of the Back water lands in both the cases are situated adjacent to Buckingham Canal as could be seen from the Layout drawing submitted .

 

(ii) S. No. 176 of Karapakkam Village, Sholinganallur Taluk, Chennai District   is  “Back Water lands” ,  as per Revenue classification and is Colloquially called as Kazhuveli lands .  Hence, the Respondents shall be liable to  protect the said lands  being  ” Water area / Wetland ” .

 

(iii)       The fact that  the “said lands”  are lying  adjacent to the Buckingham Canal shall conclusively prove that the ‘said lands’ are nothing but  ”  Wetlands / Marsh lands / Water Area” as defined under Sec. 2(g) of the Wetlands (Conservation and Management) Rules, 2010.

 

(iv)      The  “said land”  is  connected  to  the  Sea through the                         down-stream portion of Buckingham Canal and to the notified Pallikaranai Marsh lands through the up-stream portion of Buckingham Canal via  ‘ Thoraipakkam –Okkiyam – Madav ’.

 

(v)     The “said land” function as  a “buffer area” to accommodate the overflowing water from the Buckingham Canal during excess rains from Pallikaranai Marsh lands and from the sea during high tides. Hence, damages to the character of the said lands through re-classification, alienations shall constitute violation of Art.21 of the Constitution of India because “Right to Water” has been recognized as a part of “Right to life” under Art.21 of the Constitution of India.

 

(vi)     The Hon’ble First Bench of this Hon’ble Court has held in Para No. 2 of the Judgement in WP No. 40571 of 2015 dated 22.12.2015 that Wetlands shall not be reclassified into house-sites which is extracted below.

 

“2.   We, may, however, add that the 6th Respondent  / Tahsildar, Madunthakam may also  look into the issue  whether without issuing  of any Patta and in violation  of the norms any construction is being made and ensure that there is no re-classification of the land whereby the wetlands and the lake areas may be converted into house sites” 

 

(vii)       The above dictum has been reiterated by the Hon’ble  1st Bench of this Hon’ble Court in Para No.2 of the Judgement dated 06/09/2016 in WP No. 30951 of 2016 also . The Hon’ble Bench has cited the Judgement of the Full Bench in 2015-5-L.W.397 while expressing the above view.

 

“2. We have pointed out to the learned counsel for the petitioner the Full Bench Judgment of this Court in T.K.Shanmugam, Secretary, C.P.I. (M) North Chennai District Committee, 52, Cooks Road, Perambur, Chennai-600 011 v. The State of Tamil Nadu, rep. by its Secretary to Govt., Department of Revenue, Fort St. George, Chennai-600 009 and others, reported in 2015-5-L.W. 397 to emphasise that what is classified as water area cannot now be converted for any other use. Thus, in our view, that approach would also” equally have to be applied keeping in mind the problem of conversion of wet land areas for urbanisation “

 

(viii)      The Hon’ble Supreme Court of India has held in the order in  WP (Civil) No. 230/2001 dated 08/02/2017 that Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 shall apply to all wetlands of area above 2.25 hectares which have been mapped through satellite surveys.  Due to the above direction, reclamation of above type of wetlands or any other activity likely to have an adverse impact on the ecosystem of the wetlands shall stand prohibited.

           “(a) reclamation of wetlands ;

     (b) setting up of new industries and expansion of existing industries:

    (c) manufacture or handling or storage or disposal of hazardous substances covered under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 notified vide S.O. No. 966(E), dated the 27th November, 1989 or the Rules for Manufacture, Use, Import, Export and storage of Hazardous Micro-organisms / Genetically engineered organisms or cells notified vide GSR No. 1037(E), dated the 5th December, 1989 or the Hazardous Wastes (Management, Handling and Transboundry Movement) Rules, 2008 notified vide S.O. No. 2265(E), dated the 24th September,2008 ;

      (d) solid waste dumping : provided that the existing practices, if any, existed before the commencement of these rules shall be phased out within a period not exceeding six months from the date of commencement of these rules ;

      (e) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements : provided that the practices, if any, existed before the commencement of these rules shall be phased out within a period not exceeding one year from the date of commencement of these rules ; 

      (f) any construction of a permanent nature except for boat jetties within fifty metres from the mean high flood level observed in the past ten years calculated from the date of commencement of these rules ; 

      (g) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specified in writing by the Authority constituted in accordance with these rules”

 

(ix)   This Hon’ble Court has banned all types of construction activities in Marsh lands vide the order in Crl.O.P. No. 4413 of 2013 dated 18.11.2016 . Pursuant to this order , the Government of Tamilnadu has issued a Press release banning all registrations on Marsh lands vide P.R. No. 155  dated 10.03.2017 .

 

(x)   The Respondents have  been repeatedly trying to mislead this Hon’ble Court by stating that  the classification of the ‘said land’ as ‘Government – Poramboke – Kazhuveli’  is different from Water areas/  wetlands/ marshlands.  The word   “poram” means  “outside” and  “poke” means  “revenue account”. Thus the word “ poramboke lands” means the lands which are not assessed to revenue records and lying outside the revenue accounts.  The English translation of word “Kazhuveli” is already available in the copy of the  ‘A’ Register extract submitted herewith as  “ Back Waters”.

 

(xi)        The Tamilnadu Government had originally transferred 317 hectares  of the Pallikaranai Marsh lands to the Forest Department and 5 years later , another 170.40 hectares had been transferred  . Two years later, another 206.98 hectares had been handed over to the Foresh Department .  Hence, it does not mean that those wetlands which are not under the Forest Department does not constitute  Marsh lands.  What distinguishes the Marsh lands / wetlands from the other classification  of lands are the nature and utilization of those lands by taking into account the location and proximity/ connection to major Water Bodies / Rivers / Sea, etc.

 

(xii)       The need to protect above category of lands has been widely recognized as could be seen from the views expressed by the various Courts and environmentalists.  The provisions of environmental laws shall directly apply to the above lands under Rule 7 (4) of the Wetlands (Conservation and Management) Rules, 2010. Hence , Sec. 24 r/w Sec. 2(j) of The Water (Prevention and Control of Pollution) Act, 1974, shall directly get attracted  in the present case, based the facts and circumstances of the case .

 

  1.   The Petitioner is left with no other proper , efficacious and alternate remedy other than to approach this Hon’ble Court   under Art.226 of the Constitution of India  to obtain appropriate  reliefs  as prayed for.

 

  1.     The Petitioner had  earlier filed  a PIL in Writ Petition No. 12125 of 2013  before this Hon’ble Court  seeking to direct the Respondents to remove the encroachments from the Marsh lands and canal poramboke areas in Survey Nos. 281,282, 283, 284 & 285 , totalling to about 165 acres at Injambakkam Village,   Chennai District  and for a direction  to retrieve those lands.  Thereafter the Petitioner had filed another W.P. No. 10821 of 2018 against alienation of Back Water lands in favour of Transport Department. In both the above PILs, this Hon’ble Court had allowed the Writ Petitions by directing encroachments and wrongful alienation of similar Back Water lands .

 

  1.      The Petitioner does not have any personal interest in this matter except that he is concerned about the unlawful alienation and transfer of  Wet lands for other purposes .  As the issue involves large public interest , the present Writ Petition has been filed under PIL category. The Petitioner  has filed the above Writ Petition out of his own funds.  The Petitioner undertakes to obey any order of this Hon’ble Court  in the event of this Hon’ble  Court finding  this Petition as  vexatious or frivolous.    The Petitioner is prepared to pay the cost which may be  imposed by this Hon’ble Court  if the filing of the above Writ Petition is found to be intended for any oblique motive.  The present Writ Petition has been filed based on the information and the personal knowledge of the Petitioner .  All the information furnished in the above Writ Petition are true to Petitioner’s knowledge.  Hence the above PIL may be entertained by this Hon’ble Court.   The Petitioner is the Founder and Managing Trustee of the  “Nature Trust” which is formed for the objective of protecting the environment,  the Natural Resources and also  the Government Poramboke lands, water ways, grazing lands etc., against encroachments and earns a personal income  of about    Rs. 3 Lakhs per year [ AADHAR No. 2700 4343 0821 and PAN No. JEMPS6314Q] . The Petitioner is interested in filing the above   Writ Petition under the caption of  Public Interest Litigation.

It is therefore prayed that this Hon’ble Court may be pleased to dispense with the production of the original copy of the Impugned G.O.(Ms) No. 155, Revenue [LD7(2)] Department dated 16.05.2014 issued by the 1st Respondent, pending disposal of this Writ Petition and permit the Petitioner to produce a  copy of the same.

 

It is  further prayed that this Hon’ble Court may be pleased to Stay the operation of  the Impugned  Government Order No. G.O.(Ms) No. 155 Revenue [LD7(2)] Department dated 16.05.2014 passed by the 1st   Respondent ,  pending disposal of the above writ petition.

 

For the reasons stated above, it is prayed that this Hon’ble Court may be pleased to issue a  Writ of Certiorarified Mandamus or any other Writ, order or direction in the nature of a Writ to call for the records of  the Government Order in G.O.(Ms) No. 155 Revenue [LD7(2)]  Department dated.16.05.2014  issued by  the  1st Respondent transferring  an extent of  3.23.80 Hectares out of 15.30.00 Hectares of land in S.No.176 of Karapakkam Village, Sholinganallur Taluk, Chennai District in favour of 7th Respondent and to quash the same  and consequently direct the 3rd  Respondent to cancel the revisions made in the revenue records pursuant to the Impugned Order and to pass such further or other orders as this Hon’ble Court may deem  fit  and proper in the circumstances of the case  and thus render justice.

 

 

Solemnly affirmed at Chennai      ][

on this the 11th  day of March, 2020 ][

and signed his name in my presence. ][                BEFORE ME

 

 

 

ADVOCATE : CHENNAI

 

 

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