Madras High Court: In two writ petitions challenging the expansion of State highway roads on the tank bunds of two very large water bodies in Madurai District, the division bench of G R Swaminathan and B. Pugalendhi, JJ., issued the following directions to the State :
-
The Court directed the opening of a dedicated website containing an exhaustive list of all water bodies in the State of Tamil Nadu, containing their survey number, physical location, details of village, taluk, district and extent. The website will be for the viewing of all and shall be opened within six months from the date of receipt of the copy of this order.
-
The exercise of collating the details will be undertaken at the village level and certified at the Taluk level. In case a detail is found to be incorrect it has to be brought to the notice of this Court and the Court shall initiate appropriate proceedings against the person responsible for furnishing the incorrect data. The officials have been directed to not only undertake physical inspection but also verify all the records.
-
The existing encroachments shall be identified and removed after issuing notice to the encroachers. Constructions were directed to be demolished and further encroachments were not be permitted nor regularized.
-
Pattas for water bodies issued post 01-01-2000 are to be cancelled and water bodies are to be restored to their original position.
-
The development projects will not be implemented to affect the integrity of water bodies in any manner. Water bodies including tank bunds are to be maintained and proper distance shall be reserved.
The petition prayed for directing the State to expeditiously restore the bund and retain the wall to its earlier position over the boundary of ‘Thenkal Kanmoi’ and ‘Vandiyur Kanmoi’ and restore these water bodies by increasing to their original water spread area in accordance with law. Further, it prayed for directing the State to pay adequate compensation for demolishing the bund on the basis of “Polluter Pays Principle’ to Ministry of Environment, Forest and Climate Change for the purpose of reconstructing the bund.
The Division Bench, upon divergence of view regarding the grant of an interim order of restrain, referred the matter to a third judge who directed that the projects will be put on hold till the disposal of the writ petitions.
After inspecting both the spots, the Court noted that as a result of the implementation of the projects, the water spread area will not be reduced but the storage capacity would rather increase.
After taking note of Section 8(d) of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, the Court said that conversion of bunds cannot be permitted as it is penalized by law. It also mentioned the concepts of “set back area’, ‘buffer zone’ and ‘Exclusion of Tank Bunds’.
Concerning the contention advanced by the petitioner, that prior environmental clearance must be obtained, the Court said that the present cases involve expansion of State Highway Roads and not National Highways. The State Highway expansion projects have been exempted from the requirement of having to obtain prior environmental clearance vide notification dated 01-12-2009 unless the projects come up in hilly terrain and ecologically sensitive areas.
The Bench took judicial notice of the fact that a number of water bodies including some very large ones have fallen prey to the Tamil Nadu Housing Board and the Tamil Nadu Slum Clearance Board and other various government departments.
The Court also said that a number of Court Complexes are also located on what were originally tanks which upon torrential rains and floods faced the fury of nature and nearly thousand case bundles are to be reconstructed due to the same.
The Bench noted that a few hundred writ petitions are also pending seeking removal of encroachment on water bodies. The Bench said that there is indiscriminate dumping of plastic waste and garbage in the water bodies, and that drainage and sewage is also being let out into these tanks and rivers. The Court also remarked that the local bodies have to be nudged and pushed to discharge their statutory functions.
While giving directions, the Court added that the licensees to enhance their profit, indulge in unsustainable practices. It is the duty of officials to ensure that the quality of water is not affected. Further, it directed that the issuance of a tender has to ensure appropriate conditions are being incorporated to effectuate this clause.
[R. Manibharathi v Union of India, WP(M) 31214 and 31221 of 2023, decided on 07-03-2024]
Advocates who appeared in this case :
For the Petitioner: Senior Counsel T. Lajapathi Roy
For the Respondents: Deputy Solicitor General of India K Govindarajan, Advocate General P S Raman, Senior Counsel Isaac Mohanlal, Special Government Pleader K. Balasubramani, Senior Counsel C. Arul Vadivel, Advocate S. Srinivasaraghavan, Advocate N. Tamil Mani
