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Judgment
Prabha Sridevan, J.—This writ petition has been filed for a declaration that Sections 4, 5, 6, 7, 8, 9 and 10 of the Tamil Nadu Protection of
Tanks and Eviction of Encroachments Act, 2007 as null and void and contrary to Article 14 of the Constitution of India and also to quash the
impugned order dated 24.7.2008 passed by the fourth respondent herein.
Pending the writ petition, directions had been issued for giving an opportunity to the petitioner to reply to the show cause notice and until any
order was passed, there can be no eviction of the petitioner. Therefore, the individual and personal grievance of the petitioner has been addressed
by the interim orders of this Court. But, the learned Counsel for the petitioner submitted that the grounds of attack on the constitutionality of the
provisions of the Act still remain and made her submissions.
According to the learned Counsel, the impugned Sections of the Act confer upon the Executive, an unguided and uncanalised discretionary
power, since they deny to the person aggrieved an opportunity of being heard. The provisions do not contemplate any procedure to be adopted
for hearing, nor for any enquiry of the affected persons prior to the issuance of the eviction order and therefore, they should be struck down.
Learned Counsel referred to The Government of Mysore and Others Vs. J.V. Bhat and Others, and The Scheduled Caste and Weaker Section
Welfare Association (Regd.) and anothers Vs. State of Karnataka and others, .
Mr. M. Dhandapani, learned Special Government Pleader referred to L. Krishnan v. State of Tamil Nadu AIR 2005 Mad 311, which perhaps
was the starting point for the State of Tamil Nadu to enact this law and submitted that the ""right to water"" is part of right to life guaranteed under
Article 21 of the Constitution and if all natural water storage resources are encroached upon indiscriminately, then the consequences will have a
devastating adverse effect on the lives of people. He also referred to Intellectuals Forum, Tirupathi Vs. State of A.P. and Others, in support of his
submissions.
We may now look into the provisions of the Act. The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 is extracted
hereunder:
Act No. 8 of 2007
An Act to provide measures for checking the encroachment, eviction of encroachment in tanks which are under the control and management of
Public Works Department, protection of such tanks and for matters incidental thereto.
Be it enacted by the Legislative Assembly of the State of Tamil Nadu in the Fifty-eighth Year of the Republic of India as follows-
(1) This Act may be called the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.
(2) It extends to the whole of the State of Tamil Nadu.
(3) It shall come into force on such date as the Government may, by notification, appoint.
In this Act, unless the context otherwise requires,-
(a) ''ayacut area'' means area irrigated under any irrigation system within its commandability;
(b) ''field channel'' means a channel existing or to be constructed to receive and distribute water for irrigation;
(c) ''field drainage'' means a water course which discharges waste or surplus water from the land;
(d) ''foreshore area'' means the land above full tank level and upstream of the tank bund;
(e) ''full tank level'' means the level of water in the tank when the water is stored up to the crest of the surplus weir;
(f) ''Government'' means the State Government;
(g) ''land'' includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth;
(h) ''prescribed'' means prescribed by rules;
(i) ''supply channel'' means a channel, which receives water from a water source and supply to the lower down tank;
(j) ''surplus course'' means a channel which conveys the surplus spilling from the tank to the next tank downstream or river nearby;
(k) ''surplus weir'' means a device to lead away the surplus water not required to be stored in the tank safely to the river lower down or tank;
(l) ''tank'' means a storage structure built in for harnessing water for use and includes supply channel and its cross masonries, tank sluice, surplus
weir, surplus course and its cross masonries; field channel and its cross masonries besides the drains and tank poramboke lands which are under
the control and management of Public Works Department;
(m) ''tank bund'' means a small fixed earth dam;
(n) ''tank sluice'' means a vent way provided for the purpose of supplying water from the tank;
(o) ''water spread area'' means an area covered by water spread at full tank level.
The Government may direct that a survey be made, with reference to the records available with the Revenue Department, of tanks in every
district for the purpose of determining their limits in respect of area and that proper charts and registers be prepared setting forth the channel and all
boundaries and marks and all other matters necessary for the purpose of identifying such limits.
(1) The Government or any other officer authorized by it may, by order, appoint any officer not below the rank of Taluk Surveyor as Survey
Officer for surveying the tanks within such local limits as may be specified in such order.
(2) The Survey Officer shall carry out the survey of tanks in such manner as they be prescribed.
(3) The Survey Officer shall be assisted by such officers of the Public Works Department having control over such tanks.
The Survey Officer and officers assisting the Survey Officer shall have power to enter upon any land and to do all acts necessary for the survey
of tanks.
(1) The Survey Officer shall after the completion of the survey of tanks, prepare a chart and a register pointing out the boundaries of the tanks
and such other informations necessary for the purpose of identifying the limits of tank.
(2) The chart and the register prepared under Sub-section (1) shall be handed over to an Officer of the Public Works Department, having control
over such tanks, as may be specified by the Government.
(3) The officer referred to in Sub-section (2), shall within one month from the date of handing over of the charge and register, publish a notice in
such manner as may be prescribed pointing out the boundaries of the tank.
(1) If the officer specified in Sub-section (2) of Section 6 is of opinion that any person has encroached upon any land within the boundaries of
the tank and that the encroacher should be evicted, the officer shall issue a notice in the manner as may be prescribed, calling upon the person
concerned to remove the encroachment before a date specified in the notice.
(2) Where, within the period specified in the notice under Sub-section (1), the encroacher has not removed the encroachment and has not vacated
the land within the boundaries of the tank, the officer referred to in Sub-section (2) of Section 6 shall remove the encroachment and take
possession of the land within the boundaries of the tank encroached upon, by taking such police assistance as may be necessary. Any police officer
whose help is required for this purpose shall render necessary help to that officer.
(3) Any crop or other product raised on the land within the boundaries of the tank shall be liable to forfeiture and any building or other construction
erected or anything deposited thereon shall also, if not removed by the encroacher after a notice under Sub-section (1), be liable to forfeiture.
Whoever,�
(a) Enters the land in the water spread and foreshore areas of the tank without any lawful authority,
(b) practices crop cultivation without any lawful authority,
(c) raises plantation crops without any lawful authority,
(d) damages the tank bund, tank sluices, surplus weirs and other built in structures,
(e) obstructs the officers in carrying out their work under this Act,
(f) interferes with the flow in the supply channels feeding the tanks and encroachers upon adjoining canal poramboke lands,
(g) interferes with the flow in the field channels taking off from tank sluices to feed the ayacut area,
(h) damages distribution and control structures located in the field channels,
(i) damages and obstructs the flows in the field drainage systems,
(j) lifts water from the tank through mechanical and electrical devices for cultivation, without lawful authority,
shall on conviction, be punished with imprisonment for a term which may extend to three months or with fine of rupees five thousand or with both.
No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in
pursuance of this Act or a rule or order made thereunder.
If any difficulty arises in giving effect to the provisions of the Act, the Government may by order published in the Tamil Nadu Government
Gazette, make such provisions, not inconsistent with the provisions of this Act, as appear to them to be necessary or expedient for removing the
difficulties.
Provided that no order shall be made after the expiry of a period of two years from the date of commencement of this Act.
The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force.
The Government may, in the public interest, alienate any part of the tank poramboke land which is under the control of Public Works
Department without interfering with storage capacity and water quality.
(1) The Government may make rules for carrying out all or any of the purposes of this Act.
(2) (a) All rules made under this Act shall be published in the Tamil Nadu Government Gazette and unless they are expressed to come into force
on a particular day, shall come into force on the day on which they are so published.
(b) All notifications issued under this Act shall be published in the Tamil Nadu Government Gazette and unless they are expressed to come into
force on a particular day, shall come into force on the day on which they are so published.
(3) Every rull or order made or notification issued under this Act shall as soon as possible, after it is made or issued, be placed on the Table of the
Legislative Assembly, and if, before the expiry of the session in which it is so placed or in the next session, the Legislative Assembly makes any
modification in any such rule, order or notification or the Legislative Assembly decides that the rule, order or notification should not be made or
issued, the rule, order or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that
any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, order or notification.
The Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 are extracted hereunder:
In exercise of the powers conferred by Sub-section (1) of Section 13 of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act,
2007 (Tamil Nadu Act 8 of 2007), the Governor of Tamil Nadu hereby makes the following Rules�
These Rules shall come into force with effect on and from the 1st day of October, 2007.
The Rules
Short title.� These Rules may be called the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007.
Definitions.� (1) In these Rules, unless the context otherwise requires,�
(a) ''Act'' means the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007).
(b) ''Chart'' means field measurement book sketches covering each of the survey numbers traversed in a tank and map available with the Revenue
Department showing the boundaries of a tank clearly marked in distinct colours and includes a separate map showing encroachments, if any;
(c) ''form'' means form appended to these Rules;
(d) ''officer'' means the Assistant Engineer or Junior Engineer or Overseer of the Water Resources Organisation of Public Works Department,
incharge of the tanks lying in his jurisdiction for the purpose of enforcing the provisions of the Act and the Rules;
(e) ''register'' means a document containing information regarding the survey number, area encroached, etc. contained in Form I;
(f) ''survey officer'' means the firka surveyor or town surveyor or any officer not below the rank of the survey officer of the Survey and Land
Records Department;
(g) tank poramboke'' means the land liable to submersion when a tank is full either at full tank level or maximum water level, as the case may be,
and includes all the land components form part and parcel of the tank with its appurtenances.
(2) The words used but not defined in these Rules shall have the same meaning respectively, assigned to them in the Act.
Survey of tanks.- Survey shall be carried out by traversing along the tank and the boundaries be demarcated, based on the original records of
the tanks available with the Revenue Department in every taluk and district and simultaneously identifying the areas encroached upon and areas
alienated by the Government, in public interest, within the demarcated boundaries, and proper charts and registers be prepared setting for these
details.
Appointment of Survey Officer.� (1) The Assistant Director of Survey and Land Records Department is authorised to appoint, by order the
survey officer, who is not below the rank of taluk surveyor, for surveying the tanks within such local limits as may be specified in such order.
(2) The survey officer appointed under Sub-rule (1) shall carry out the survey work in the manner provided in Rule 3.
(3) The officer of the Public Works Department having control over the tank shall co-ordinate and extend all assistance required by the survey
oficer for the conduct of such survey and demarcation of the limits of all the tanks.
(4) As and when the boundary lines are demarcated by the survey officer, the officer referred to in Sub-rule (3), shall arrange to fix the boundary
stones on a permanent basis at desired locations and carry out appropriate measures to maintain the boundary lines without any external
interference.
Report of Survey Officer.� (1) The survey officer, after the completion of the survey of tanks shall prepare charts and registers in the manner
provided in Rule 3.
(2) The charts and registers prepared under Sub-rule (1) and duly authorised by the Tahsildar concerned shall be handed over to the officer
referred to in Sub-rule (3) of Rule 4, having control over such tank.
(3) The officer shall, within one month from the date of handing over the chart and register, publish a notice in Form-II together with the map of the
tank in the notice boards of the officers of the Village Administrative Officer, Village Panchayat Office and Water Resources Organisation
concerned.
Eviction of Encroachment.� (1) If any person has encroached upon any land of the tank, the officer referred to in Sub-rule (3) of Rule 4 shall
prepare a notice in Form III and call upon the person concerned to remove the encroachment.
(2) Notwithstanding anything contained in Sub-rule (1), such notice shall be served by delivering a copy either to the encroacher or to a member of
his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof in some conspicuous part of his last known residence
or in any part of the area encroached upon or in any of the offices of the Village Chavadi, Village Panchayat, District Collector, Revenue Divisional
Officer, Tahsildar, Village Administrative Officer, Panchayat Unions and in the Section, Sub-Division and Divisions concerned of the Water
Resources Organisation of the Public Works Department as the officer deems fit and proper.
(3) If the encroacher has not removed the encroachment within the period specified in the notice referred to in Sub-rule (1), the officer shall inform
the area Station House Officer of Police Department, in writing to provide adequate Police personnel, as may be necessary and shall remove the
encroachment or obstructions or any building or any crop or any product raised on the land or anything deposited and forfeit them and take
possession of the land as specified in Sub-sections (2) and (3) of Section 7 of the Act.
(4) The officer shall also impose the cost of eviction against such person, by preferring a complaing against such person with the competent Judicial
Magistrate for recovery.
Offences and Penalties.� (1) If any person indulges in any of the activities prohibited in Section 8 of the Act, the officer shall on suo motu,
prefer a complaint in writing against such person before a Metropolitan Magistrate or a Judicial Magistrate of first class, as the case may be, for
punishment as specified in Section 8 of the Act and no Court shall take cognizance of any offence punishable under this Act except upon a
complaint in writing made by the officer.
(2) The officer shall also compound the cost of making good the loss and cost of eviction and impose against such person, simultaneously.
The communication sent by the Government to the District Collectors dated 10.10.2007 is extracted hereunder:
Letter No. 11634/W2/2007-10, Dated 10.10.2007
From
Thiru S. Audiseshiah, IAS,
Secretary to Government.
To
All the District Collectors (with 5 copies of Act and Rules)/All Superintendents of Police (one copy)
Sir,
Sub: The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007) and the Tamil Nadu Protection
of Tanks and Eviction of Encroachment Rules, 2007 � Brought into force with effect from 1.20.2007 � Implementation of the Act � reg.
Ref: G.O. Ms. No. 320, PW (W2) Department, dated 28.9.2007
------
The Government have enacted the ''Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Tamil Nadu Act 8 of 2007)'' with
a view to provide measures for checking the encroachment, eviction of encroachments in tanks and protection of such tanks which are under the
control and management of Public Works Department. The Government have also made the ''Tamil Nadu Protection of Tanks and Eviction of
Encroachment Rules, 2007'' to the said Act. The Act and Rules have been brought into force with effect from 1.10.2007 in the Government Order
cited.
I am to send the copies of the said Act and Rules and to request you to implement the Act and Rules. The salient aspects of the Act and Rules
are outlined below:
� The Act and Rules extend to the tanks in the State which are under the control and management of Public Works Department.
� The Assistant Director of Survey and Land Records Department is authorized to appoint, by order, the firka surveyor or town surveryor as
the Survey Officer.
� The Survey Officer shall carry out the survey of tank based on the original records of Revenue Department and demarcate the boundaries and
identify the encroachments wherever they are.
� The Assistant Engineer or Junior Engineer or Overseer concerned of Water Resources Organisation of Public Works Department, in charge
of the tank, who is the officer of Public Works Department as per the Act, shall arrange to fix the boundary stones on a permanent basis and
maintain them.
� The Survey Oficer shall hand over to the officer of Public Works Department concerned, the following, duly authenticated by the Tahsildar
concerned.
� Charts i.e. the field measurement book sketches related to the tank, map available with Revenue Department showing boundaries of tank and
a separate map showing encroachments wherever they are;
� Registers i.e. a document containing information on survey numbers, area encroached etc. as per Form I of the Rules.
� The officer of Public Works Department concerned shall within one month, publish a notice in Form II of the rules together with the map of the
tank in the notice boards of offices of Village Administrative Officer, Village Panchayat Office and Water Resources Organisation concerned.
� The officer of Public Works Department concerned shall prepare a notice in Form III of the Rules and call upon the encroached person to
remove encroachment within 21 dayus of date of receipt of notice.
� If the encroached person has not removed the encroachment within 21 days, the officer of Public Works Department concerned shall remove
the encroachment, by seeking the assistance of the Police personnel wherever necessary, by informing in writing to the area Station House Officer
of Police Department,
� The officer of Public Works Department concerned shall impose the cost of eviction against such person.
� If any person indulges in encroachment of tank by practicing cultivation, plantation, damages the tank, interferes with the flow etc., the officer
of Public Works Department concerned shall prefer a complaint against such person, before a Metropolitan Magistrate or a Judicial Magistrate of
first class.
� Such person shall on conviction be punished with imprisonment for a term of three months or with fine of rupees five thousand or with both.
The District Collectors are requested to take immediately, the following measures for the cent percent effective implementation of the Act.
Create adequate awareness among the Public, especially at Village level about the provisions of the Act and Rules in the form of beating tom-
tom, distribution of handbills, pasting of wall posters and also through mass media. The contents of the above means are attached for reference.
The handbills and wall posters will be printed at Chennai by Public Works Department and will be distributed by the respective Executive
Engineers in consultation with the District Collectors.
Issue suitable circular among the Tahsildars and Village Administrative Officers etc. instructing them to spare the field measurement book
sketches and maps of tanks of the Survey officers and officers of Public Works Department, whenever they approach them.
Monitor the progress of eviction of encroachments and include this as one of the agenda items in the monthly review and send the status report
to Government in Public Works Department every month, as in the enclosed format.
The District Superintendent of Police may be informed to instruct the officials under his control to provide adequate police personnel during
eviction of encroachments in the tanks, whever the Officer of Public Works Department approaches them, as per the Act.
The above are statutory provisions and executive instructions with regard to eviction of encroachments. In terms of the above, public notice
regarding removal of encroachments was made by the beat of tom-tom in the year 2008 and the map indicating the encroachment was enclosed by
the Commissioner, Gudiyatham Municipality to the Junior Engineer, Public Works Department, Water Resources Organisation, Irrigation Division,
Gudiyatham.
In L. Krishnan v. State of Tamil Nadu AIR 2005 Mad 311, the public interest litigation was filed for removal of encroachments on an odai
poramboke and the First Bench of this Court made the following observations:
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.
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 water 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 this context, it will be appropriate to refer to the judgment of the Hon''ble Supreme Court reported in Hinch Lal Tiwari Vs. Kamala Devi and
Others, . Paragraphs 12 and 13 are relevant for our present purpose which read as under:
On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that
considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a
pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists
and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house
building or any allied purposes.
It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature'' s bounty.
They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a
quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e.
Respondents 11 to 13 having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on
one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the
best protection against knavish attempts to seek allotment in non-abadi sites.
A reading of the above referred passages of the said Judgment shows that the endeavour of the State should be to protect the material
resources like forests, tanks, ponds, hillock, mountain, etc., in order to maintain the ecological balance. The Hon''ble Supreme Court has
highlighted that such maintenance of ecological balance would pave the away to provide healthy environment which would enable the people to
enjoy a quality life which is essence of the right guaranteed under Article 21 of the Constitution. While on the one hand, the State is bound to
maintain the natural resources with a view to keep the ecological balance intact and thereby provide a healthy environment to the public at large in
the State of Tamil Nadu, having regard to the precarious water situation prevailing in the major part of the year, it is imperative that such noted
water storage resources, such as tanks, odais, oornis, canals etc. are not obliterated by encroachers.
In this connection reference may be made to Article 48A of the Constitution which states:
Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of the country.
No doubt the above provision is in the Directive Principles of State Policy, but it is now well settled that the fundamental rights and directive
principles have to be read together, since it has been mentioned in Article 37 that the principles down in the Directive Principles are fundamental in
the governance of the country and it is the duty of the State to apply these principles in making laws. The Directive Principles embody the aim and
object of the State under a Republican Constitution, i.e., that it is a welfare State and not a mere police State, vide His Holiness Kesavananda
Bharati Sripadagalvaru Vs. State of Kerala, (vide paragraphs - 134, 139 and 1714) and embodies the ideal of socio-economic justice, vide Union
of India and others Vs. Hindustan Development Corpn. and others, .
....
Apart from the above we may also refer to Article 51A(g) of the Constitution which makes it a fundamental duty of every citizen ""to protect
and improve the natural environment including forests, lakes, rivers and wild life"". This duty can be enforced by the Court, vide Animal and
Environment Legal Defence Fund Vs. Union of India and others, .
In M.C. Mehta Vs. Union of India (UOI) and Others, the Supreme Court observed:
Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to
safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including
forests, lakes, rivers and wildlife and to have compassion for living creatures. The ""Precautionary Principle"" makes it mandatory for the State
Government to anticipate, prevent and attack the cause of environment degradation. We have no hesitation in holding that in order to protect the
two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes.
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 Punji 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.
It is only after this judgment that the aforesaid Act came to be passed.
In 1975 (2) S.C.R. 407 (supra), the Supreme Court had to deal with the Mysore Slum (Improvement and Clearance) Act, 1958. There, the
validity of the said Act was challenged as unconstitutional. The Supreme Court held that there are two possible approaches to this question and the
relevant paragraphs read as follows:
One is to hold that the provisions of the statute are themselves unconstitutional because they do not provide a reasonable opportunity for the
affected parties to be heard ; the other is to hold that as there is nothing in the statutory provisions which debar the application of the principles of
natural justice while the authorities exercise the statutory powers 1 under the Act, and as the principles of natural justice would apply unless the
statutory provisions point to the contrary the statutory provisions themselves are not unconstitutional though the notifications issued under them may
be struck down if the authorities concerned do not observe the principles of natural justice while exercising their statutory powers. As there is a
presumption of Constitutionality of statutes unless contrary is established it is the latter course that appears to us to be the proper approach.
We must, therefore, examine the nature of functions imposed by statute and the requirements they are designed to meet in applying the tests stated
above. We think that the duty to hear those whose dwellings are to be condemned becomes imperative before deciding to demolish their particular
buildings although we do not think that any quasi-judicial trial was called for. All that was necessary was to hear objections, checked by spot
inspections, where needed, before taking a decision. This would have met with the requirements of natural justice in such cases where emergent
action may sometimes be very necessary. We may point out that, in cases of demolition orders, pursuant to schemes framed under the Housing
Act in England, the duty to hear before making them was held by the Court to be Implied. The earliest of these cases was Cooper v. The Board of
Works for Wandsworth District. These duties are now imposed by statute (see Sections 16 and 20 of Housing Act, 1957).
In The Scheduled Caste and Weaker Section Welfare Association (Regd.) and anothers Vs. State of Karnataka and others, Head Note.
...It is, therefore, obvious that when a declaration is made u/s 3 and a further declaration is made u/s 11, the inhabitants of the areas are affected
and any further action in relation to the area which is declared to be ''slum clearance area'' without affording such persons an opportunity of being
heard would prejudicially affect their rights. The right to be heard in the matter has been acquired by the earlier action of the authority in
considering the area for the purpose of the scheme. This is clear from the proviso to Sub-section (1) of Section 11 of the Act. When any alteration
is sought to be made in the original scheme, it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected
by the earlier order and required to adopt a certain course of action. In this view of the matter it is to be held that when a notification is made
rescinding the earlier notifications without hearing the affected parties, it is clear violation of the principle of natural justice.
In (2006) 3 S.C.C 549 (supra), the judgment laid down the law regarding the use of public or natural resources which have a direct link to the
environment of a particular area; and (b) indicated specifically the order to be passed with respect to the two tanks in the Tirupati area. The
grievance was relating to the systematic destruction of percolation irrigation and drinking water tanks in Tirupati area, and the socially spirited
citizens complained that the High Court had given precedence to the economic growth, completely ignoring the importance of protection of
environment, more specifically the cherished fresh water resources. The directions were issued to constitute a Committee of Experts for the
purpose of submitting a report on the question whether the two tanks can be utilised for water harvesting. The report indicated that there was no
tank existing in the area at present and the Supreme Court observed as follows:
The responsibility of the state to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law,
gave rise to the principle of ""state responsibility"" for pollution emanating within one''s own territories [Corfu Channel Case ICJ Reports (1949) 4].
This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention),
to which India was a party. The relevant Clause of this Declaration in the present context is Paragraph 2, which states:
The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must
be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.
Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an
important part of the environment of the area.
Sustainable Development
The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development.
The debate between the developmental and economic needs and that of the environment is an enduring one, since if environment is destroyed for
any purpose without a compelling developmental cause, it will most probably run foul of the executive and judicial safeguards. However, this Court
has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In
response to this difficulty, policy makers and judicial bodies across the world have produced the concept of ""sustainable development"". This
concept, as defined in the 1987 report of the World Commission on Environment and Development (Brundtland Report) defines it as
Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs"". Returning to
the Stockholm Convention, a support of such a notion can be found in Paragraph 13, which states :
In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and
coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve
environment for the benefit of their population.
Subsequently the Rio Declaration on Environment and Development, passed during the Earth Summit at 1992, to which also India is a party,
adopts the notion of sustainable development. Principle 4 of the declaration states:
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be
considered in isolation from it.
....
Public Trust Doctrine
Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This doctrine, though in existence from Roman times, was
enunciated in its modern form by the US Supreme Court in Illinois Central Railroad Co. v. People of the State of Illinois (1892) 146 US 537,
where the Court held:
The bed or soil of navigable waters is held by the people of the State in their character as sovereign, in trust for public uses for which they are
adapted.
(L. Ed. p. 1018)
* * *
The state holds the title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State, which
does not recognize and is not in execution of this trust is permissible.
(L Ed p. 1033)
What this doctrine says therefore is that natural resources, which includes lakes, are held by the State as a ""trustee"" of the public, and can be
disposed of only in a manner that is consistent with the nature of such a trust. Though this doctrine existed in the Roman and English Law, it related
to specific types of resources. The US Courts have expanded and given the doctrine its contemporary shape whereby it encompasses the entire
spectrum of the environment.
In that case, the Supreme Court observed that, ""due to persistent developmental activities over a long period of time, much of the natural resources
of the lakes have been lost and considered irreparable and this...is beyond the power of this Court to rectify.
There are some more judgments that are relevant. (i) (2007) 1 MLJ 124 (SC) - Susetha v. State of Tamil Nadu; and (ii) Sivakasi Region Tax
Payers Association Vs. The State of Tamil Nadu and Others, .
(a) In (2007) 1 MLJ 124 (SC), the appellant, who was a member of the Okkiam Thoraipakkam Panchayat Union, questioned the decision of the
Government to construct a shopping complex on a temple tank, which way lying in disuse. This Court dismissed the writ petition. The Supreme
Court drew the difference between natural water storage resources and artificial tanks, at paragraphs 17 and 25, as under:
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.
....
We would, however, direct the State and the Gram Panchayat to see that other tanks in or around the village are properly maintained and
necessary steps are taken so that there is no water shortage and ecology is preserved.
(b) In Sivakasi Region Tax Payers Association Vs. The State of Tamil Nadu and Others, , the grievance was that G.O.Ms. No. 867, dated
13.09.1995, by which the Government converted the encroachment in Siru Kulam Kanmoi poramboke into Natham. This Court in paragraphs 15,
16, 21 and 22 has observed as follows:
Revenue Standing Orders 15(38) refers to assignment of poramboke and reserved lands. RSO 15(38)(ii) refers to Water course poramboke,
which is extracted hereunder:
(38) Assignment of poramboke and Reserved lands- (ii) Water course poramboke: Great care should be taken to preserve the margins of canals,
channels and streams. The transfer and assignments of such water course source porambokes can be ordered only by the Government in
consultation with the Commissioner of Land Administration and the Chief Engineer (P.W.D.).
15.1. RSO 16 deals with disposal of Tank-bed lands. Clause 2 refers to the procedure of disposal of tank-bed lands, which is extracted
hereunder:
Disposal of tank-bed lands.- When a tank is removed from the list of irrigation sources and the ayacut thereunder transferred to dry or
registered under some other source, the lands in the bed of the tank should be laid out into convenient plots of not less than half an acre each and
sold by auction, subject to payment of the highest dry assessment current in the village or of the settlement assessment if the land has been
classified and assessed since the abandonment of the tank. It should be stipulated in the sale notice that the assessment is liable to alteration at any
general revision of the land revenue settlement of the district, and that Government reserved to themselves the right to a share in mines and quarries
subjacent to the land and that they reserve to themselves or to persons authorised by them the powers necessary for the proper working of the
minerals such as the full and free liberty and right of ingress, egress and regress, etc., as detailed in part II of the model form of mining lease in
Appendix IX, Chapter VIII of the Madras Mining Manual, subject to the payment or rendering of compensation to the surface owner for all
damages that he may sustain by the exercise of such rights. Sales under this Order require the previous sanction of the Collector. The sales shall be
held by the Tahsildar, Deputy Tahsildar or the Revenue Inspector subject to confirmation by the Divisional officer. The collector shall in each case
nominate the Selling Officer.
15.2. RSO 26 deals with unauthorised occupation of Government land. A reading of RSO 26 indicates that when there is unauthorised
occupation, the Collector may levy assessment, he may impose penalty besides the assessment and he may order eviction apart from assessment
and penalty. For eviction, the procedure to be followed has been indicated. Clause 4 deals with three categories. Sub-clause (a) relates to the
cases where the occupation is permanent or temporary is unobjectionable. Sub-clause (b) relates to cases where temporary occupation is
unobjectionable but permanent occupation is objectionable and Sub-clause (c) deals with the cases where occupation whether temporary or
permanent is objectionable.
In the above context, the provisions contained in the Tamil Nadu Land Encroachments Act, 1905 are also relevant. As per Section 2 of such
Act, all lands, except the lands classified as temple sites and house sites, vests with the Government. Sections 3, 3-A, 4, 5, 5-A, 5-B provides for
levey of assessment for unauthorised occupation in Government lands. The RSO obviously has to be read in the context of the aforesaid
provisions. The provisions contained in such Act not only contains the power of the State Government to remove the encroachments but also
includes the procedure to be followed and the remedy of the persons the provisions of the Act is to take away the inherent authority of the State,
which is the owner of all the lands that is not vested with any person. However, with a view to prevent any arbitrary action on the part of the State,
the provisions contain different regulatory measures and similarly the RSO, which have to be read as instructions supplemental to the provisions of
Land Encroachment Act and not in derogation, are also intended to lay down the guidelines and the procedure to prevent any arbitrary action.
....
The Act itself appears to be applicable to the tanks which are under the control and management of Public Works Department and the power
of eviction has been conferred under the Rules on the Officer concerned. It is thus apparent tht such provision is not ipso facto applicable to the
lands under the control of the Revenue Department or other natural resources such as streams, rivers, etc., which are not under the management
and control of the Public Works Department.
In our considered opinion, the contents of the G.O., should not be read in isolation. They must be read along with the provisions of the Tamil
Nadu Land Encroachments Act, Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 and more particularly along with the
Standing Orders of the Board of Revenue. The Standing Order of the Board of Revenue as well as the impugned G.O. should be read as
complementary to each other and the G.O. should not be read as supplanting the Revenue Standing Order.
(c) In M.C. Mehta v. Union of India, (1997) 11 SCC 312 , the Supreme has referred to a report of NEERI, which reads as follows;
The NEERI in paras 6 and 7 of its report has given holological approach to Water Resources Management, which is reproduced hereunder:
Holological Approach to Water Resources Management.- The salient features of the holological approach of Water Resources Management
are presented in Fig. 1, and include:
* Sustainable solutions to water-resource and land-use problems through appropriate technological interventions, and supply and demand
management options
* Regulation on exploitation through legislation and effective administration with focus on water conservation, recycle/reuse, restrictions to ensure
equitability in water availability and pragmatic land use
* Regulation by education, i.e., by creating awareness amongst the people to enable their participation and traditional knowledge in sustainable
water resource management.
Management of water resources to achieve overall aspirational goal of sustainable development warrants legal interventions based on the principles
of inter and intra-generational equity, the precautionary principle, conservation of natural resources and environmental protection. There is thus
adequate reason to take recourse to the Sections 3, 4 and 5 of the Environment (Protection) Act, 1986 for implementing holological approach to
water resources management.
In order to address the complex issues in water resource management it is prudent that the Central Government considers constituting an authority
under the Environment (Protection) Act, 1986 and confers on this authority all the powers necessary to deal with the situation created by the
depletion of groundwater levels, dwindling surface water resources, deterioration of surface and groundwater quality and haphazard land use. The
authority should be headed by a retired (sic) with expertise in the field of hydrology, hydrogeology, information technology.
Recommendations: A Central Water Resource Management Authority, with the composition as delineated in Section 6 above, with mandate for
coordination and implementation of all activities of planning, development, allocation, implementation, research and monitoring of all water
resources need to be established to promote intra and inter-generational equity, as also to operationalise the precautionary principle in sustainable
water resource management. All the States need to constitute similar authorities with functions in the State as of the Central Authority. The mandate
of the authority needs to include the following:
*....
* To protect, conserve and augment traditional water retaining structures
* To protect, conserve and augment natural and manmade wetlands in the country.
....
* To ensure community participation with a view to harnessing traditional knowledge at all stages in the holological approach to water resource
management.
(d) In M.K. Balakrishnan v. Union of India 2009(4) Scale 185, the Apex Court has held as under:
The present writ petition under Article 32 of the Constitution of India relates to conservation of wetlands which in our opinion would include
ponds, tanks, canals, creeks, water channels, reservoirs, rivers, streams and lakes. Although, the writ petition as framed related to protection of
wetlands in the country for preservation of the environment and maintaining the ecology, we have suo motu expanded its scope as mentioned
below.
There is acute shortage of water in our country and one of the main reasons for that is that most of the water conservation bodies in our country
such as ponds, tanks, small lakes, etc. have been filled up in recent times by some greedy persons and such persons have constructed buildings,
shops, etc. on the same.
Our ancestors were wise people who realised that because of droughts or some other reasons there may be shortage of water in future and
hence they made the provision of a pond near every village, tanks in or near temples, etc. which were the traditional rainwater harvesting methods.
The whole idea behind this was that whenever there is a shortage of water due to drought, etc., people may not suffer and they may use the water
available in ponds, tanks, etc. Unfortunately, people have forgotten the wisdom of our ancestors and that is why some greedy people for their
personal interest and to make money have filled up most of these ponds, tanks, etc. and have constructed buildings thereon with the result that in
most parts of India, there is a terrible water shortage and people are suffering terribly, particularly, in the summer season both in rural and urban
areas. When water is not available, people come to the streets and there are chakka jams (road blocks), riots, etc. to awaken the government
authorities to take some measures to make available the necessity of life to the general public called water.
(e) In Karnataka Industrial Areas Development Board Vs. Sri. C. Kenchappa and Others, , the Apex Court, in paragraph 70, has referred to the
following observation of The United Nations Water Conference in 1977:
All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in
quantum and of a quality equal to their basic needs.
Why we have referred to these decisions is to stress how important protection of water courses. The duty of the State is to protect them, we
have seen that the State holds the ownership in public trust. So, we can only say that the State has understood its responsibility while enacting this
Act.
With regard to how notice has to be given to encroachers, we will refer to the following judgments.
(a) In Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan and others, , the Supreme Court held as follows:
It is common knowledge that when Government allows largess to the poor, by pressures or surreptitious means or in the language of the
appellant-Corporation ""the slum lords"" exert pressures on the vulnerable sections of the society to vacate their place of occupation and shift for
settlement to other vacant lands belonging to the State or municipalities or private properties by encroachment. The Scheduled castes and
Scheduled Tribes who are settled in the allotted Government properties/houses/plots of lands are compelled or driven by pressures to leave the
places to settle at some other place. This would have deleterious effect on the integration and social cohesion and public resources are wasted and
the constitutional objectives defeated. It would, therefore, be of necessity that the policy of the Government in executing the policies of providing
housing accommodation either to the rural poor or the urban poor, should be such that the lands allotted or houses constructed/plots allotted be in
such a manner that all the sections of the society, Schedules Castes, Scheduled Tribes, Backward Classes and other poor are integrated as
cohesive social structure. The expenditure should be met from the respective budgetary provisions allotted to their housing schemes and in the
respective proportion be utilised. All of them would, therefore, live in one locality in an integrated social group so that social harmony, integrity,
fraternity and amity would be fostered, religious and caste distinction would no longer remain a barrier for harmonised social intercourse and
integration. The facts in this case do disclose that out of 29 encroachers who have constructed the houses on pavements, 19 of them have left the
places, obviously due to such pressures and interests of rest have come into existence by way of purchase. When such persons part with
possession in any manner known to law, the alienation or transfer is opposed to the Constitutional objectives and public policy. Therefore, such
transfer are void ab initio conferring no right, title or interest therein. In some of the States law has already been made in that behalf declaring such
transfer as void with power to resume the property and allot the same to other needy people from these scheme. Other States should also follow
the suit and if necessary the Parliament may make comprehensive law in this behalf. It would take care of the third question raised by the appellant.
The Union Law Commission would examine this question.
Encroachment of public property undoubtedly obstructs and upsets planned development, ecology and sanitation. Public property needs to be
preserved and protected. It is but the duty of the State and local bodies to ensure the same. This would answer the second question. As regards
the fourth question, it is to reiterate that judicial review is the basic structure of the Constitution. Every citizen has a fundamental right to redress the
perceived legal injury through judicial process. The encroachers are no exceptions to that Constitutional right to judicial redressal. The
Constitutional Court, therefore, has a Constitutional duty as sentinel qui vive to enforce the right of a citizen when he approaches the Court for
perceived legal injury, provided he establishes that he has a right to remedy. When an encroacher approaches the Court, the Court is required to
examine whether the encroacher had any right and to what extent he would be given protection and relief. In that behalf, it is the salutary duty of
the State or the local bodies or any instrumentality to assist the Court by placing necessary factual position and legal setting for adjudication and for
granting/refusing relief appropriate to the situation. Therefore, the mere fact that the encroachers have approached the Court would be no ground
to dismiss their cases. The contention of the appellant-Corporation that the intervention of the Court would aid impetus to the encroachers to abuse
the judicial process is untenable. As held earlier, if the appellant-Corporation or any local body or the State acts with vigilance and prevents
encroachment immediately, the need to follow the procedure enshrined as an inbuilt fair procedure would be obviated. But if they allow the
encroachers to remain in settled possession sufficiently for long time, which would be a fact to be established in an appropriate case, necessarily
suitable procedure would be required to be adopted to meet the fact-situation and that, therefore, it would be for the respondent concerned and
also for the petitioner to establish the respective claims and it is for the Court to consider as to what would be the appropriate procedure required
to be adopted in the given facts and circumstances.
In the above case, the facts were slightly different and there were schemes for re-location, and the Supreme Court observed that if the encroachers
do not opt for any of the schemes, 21 days'' notice would be served on them and thereafter, they would be ejected from the encroachment.
(b) In West Anna Nagar Residents Welfare Association v. Government of Tamil Nadu and Ors. W.P. No. 36222 of 2007 dated 11.12.2007, the
members of the petitioner-Association were aggrieved by the separate notices issued to them for removal of their encroachments on the
Narayanapuram Tank, and the Division Bench held as follows:
We may hasten to add that Section 7 of the Act and Rule 6 of the aforesaid Rules do not prescribe any opportunity to show cause against the
proposed eviction to be given to the encroachers. It is needless to point out that an opportunity to show cause against the proposed eviction is part
of the principles of natural justice and unless such right is specifically taken away by the statute, the encroachers are entitled to an opportunity to
show cause against the proposed eviction. Tamil Nadu Act 8 of 2007 and the aforesaid Rules to not contain a provision specifically excluding the
principles of natural justice. Therefore, the members of the petitioner Association are entitled to an opportunity to show cause against the proposed
eviction.
In view of the above, the writ petition is disposed of with the following directions:
(a) The notices issued to the members of the petitioner Association shall be treated by the members of the petitioner Association as Show Cause
Notices and the members of the petitioner Association shall submit replies individually, within four weeks from the date of receipt of a copy of this
order, to the 4th respondent.
(b) Within four weeks from the date of receipt of the replies from the members of the petitioner Association, the 4th respondent shall pass
appropriate orders, considering all the objections, including the objections relating to the classification of the land and nature of the encroachment.
(c) If the 4th respondent passes orders in accordance with Clause (b) above, directing the removal of the encroachment, the 4th respondent shall
give four weeks time to the members of the petitioner Association, for carrying out the eviction, from the date of serving copies of the orders on the
members of the petitioner Association.
In 1975 (2) SCR 407, extracted by us in the foregoing paragraphs, the Supreme Court has observed that there are two options open to the
Court when a relief of declaration that a particular provision is invalid is sought for. One, is to hold that the provision of the statute are
unconstitutional for not affording opportunity, and the other is to hold that since there is nothing in the statutory provisions which debars the
application of the principles of natural justice, the authorities exercising the statutory power will do so. Therefore, the Supreme Court has held that
since there is a presumption of constitutionality of statutes, unless contrary is established, the latter course appears to be the proper one and that
requirement of natural justice will be observed by the statutory authorities themselves.
We will now refer to the report of the learned Professor Dr. M. Arunachalam, Professor and Head, Sri Paramakalyani Centre for
Environmental Sciences, Manonmaniam Sundaranar University, an expert regarding the importance of wetlands, which was filed in Writ Petition
No. 47590 of 2006 relating to acquisition of lands for SIPCOT in Katrambakkam and Pudhupair Villages in Kancheepuram District. Pending the
W.P., this Court requested Dr. Arunachalam to study the impact that the establishment/extension of the industrial park in the aforesaid villages will
have on the Chembaramkkam Lake. The report filed by the Professor is illuminating and excellent. The report reads that
These tanks can be classified as wetlands based on the Convention on Wetlands (Ramsar, Iran, 1971). The Ramsar Convention is an
intergovernmental treaty whose mission is ""The conservation and wise use of all wetlands through local, regional and national actions and
international co-operation as a contribution towards achieving sustainable development throughout he world"". As on June 2007, 156 nations
(including India) have joined the Convention as contracting bodies over 151 million hectares, have been designated for inclusion in Ramsar list of
wetlands of International importance (Ramsar Convention Secretariat, 2007).
The Ramsar Convention had defined wetlands as follows:
Wetlands include a wide variety of habitats such as marshes, peat lands, flood plains, rivers, lakes and coastal areas such as salt marshes,
mangroves and sea grass beds, but also coral reefs and other marine areas not deeper than six meters at low tide as well as human-made wetlands
such as waste-water treatment ponds and reservoirs.
Therefore, wetlands do not only mean rivers or lakes, but also other kinds of habitats. In the Wetland Conservation Policy for India also, the State
has taken note that the environmental values and functions of wetlands are important and worthy for protection. The Ramsar Convention defines
wise use"" thus:
Sustainable utilization as human use of a wetland so that it may yield the greater and continuous benefit to present generations while maintaining its
potential to meet the needs and aspirations of the future generations.
The report took note of the term ""sustainable development"" as defined in the Bruntland Commission in the year 1987 thus:
Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
A perusal of the report shows how important wetlands are to our environment. In fact, it is difficult for us to exclude even a single observation
made in the report, for the Professor has made a very eloquent and expert contribution to the study of protection of wetlands. So, we will extract
some of the relevant paragraphs:
Wetlands are widely recognized as important wildlife habitats and as being among the most biologically productive and biologically diverse habitats
on the planet. They support specialized plant assemblages and restricted plant species. They directly and indirectly supply food to a broad range of
animals including microorganisms, invertebrates, fish, birds, reptiles and mammals. Wetlands serve to purify water by removing suspended matter
(settling of particles), reducing numbers of fecal microorganisms and using dissolved nitrogen and phosphorus for plant growth. They also provide
flood control by storing and detaining storm water.
The continued degradation and loss of wetlands in the surrounding districts of Chennai Metro threatens the ecological process upon which the
maintenance of these ecosystem depend.... Wetlands function as the ''Kidneys of Catchment'' because of the linkages (corridors) between wetland
vegetation and other native vegetation.
....
Table 1 � Examples of activities that can degrade Wetlands
---------------------------------------------------------------------
? Filling
---------------------------------------------------------------------
? Draining
---------------------------------------------------------------------
? Clearing
---------------------------------------------------------------------
? Addition of water (e.g. from storm water, from de-watering)
---------------------------------------------------------------------
? Dry land salinity
---------------------------------------------------------------------
? Change in flow regime in riverine wetlands
---------------------------------------------------------------------
? Use as detention basins
---------------------------------------------------------------------
? Removal of water (e.g. for stock or horticultural use)
---------------------------------------------------------------------
? Excessive abstraction of water from aquifers upon which many
wetlands are dependent
---------------------------------------------------------------------
? Introduction of exotic plants and animals within and adjacent
to wetlands
---------------------------------------------------------------------
? Grazing of stock
---------------------------------------------------------------------
? Removal of wetland vegetation (either directly or indirectly)
---------------------------------------------------------------------
? Fire
---------------------------------------------------------------------
? Various kinds of development, particularly those resulting in
increased numbers of people living nearby.
---------------------------------------------------------------------
? Threatening processes such as climate change, weeds and plant
diseases
---------------------------------------------------------------------
Note: These activities may in some circumstances be managed to
avoid unacceptable degradation.
---------------------------------------------------------------------
Depressional wetlands occur in topographic depressions that exhibit closed contour intervals on three sides and elevations that are lower than the
surrounding landscape....
These depressional wetlands also provide potential functions such as nutrient removal sediment removal, heavy metals and organics removal, peak
flow reduction, control erosion and shoreline stabilization, primary production and organic export, groundwater recharge, general habitat suitability
for invertebrates, amphibians, fishes, wetland birds and native plant richness....
Clearing of wetlands and the associated corridors and urbanization disrupt the natural hydrological regime in many wetlands and their groundwater
capture zones. Also groundwater abstraction in and around the corridors can lower water tables leading to the drying up of wetlands.
The report indicates that the tools which were used in evaluating the wetlands were taken from the methodology adopted by the New England
Corps of Engineers Highway Methodology for Wetland Functions and the Oregon Freshwater Assessment Methodology, etc. Thereafter, the
Professor has dealt to the unique qualities of the Chembarambakkam Lake, which was the subject matter in that writ petition and which is not
necessary for the purpose of the case on hand. However, he has observed that the wetlands serve significant social values, including uniqueness
and heritage, agricultural, commercial, recreational, archaeological and cultural values. The Professor has referred to the effect of housing
constructed on wetlands, which he says will have a direct negative impact on the ecosystem. In conclusion, the Professor states as follows:
Conservation of Chembarambakkam, Thandalam, Keevalur, Pizzanthangal, Katrambakkam and Sudhandram medu wetlands and the associated
water corridor are important. The functions and values of these fragile wetland ecosystems outweigh the benefits of Industrial Development and
Real Estate business. Moreover, the support of drinking water supply is crucial to conserve these systems. All the wetland corridor areas in and
around these wetland complexes have to be protected from the industrial growth and also from urbanization by the private real estate owners. All
these should be declared as protected areas by the State Department of Environment and Forests and house construction should not be allowed all
along the corridors. All fringe areas of wetlands and dry lands should be protected by the relevant government departments and all these
complexes can be recommended to International Convention of Ramsar to be declared as a wetland complex of national importance because in
the state of Tamil Nadu presently the freshwater wetland of Pallikaranai alone is considered as wetland of national importance.
From the above, it is seen that the Act in question has come not a day sooner, because we have seen that the Ramsar Convention includes as
wetlands, not only natural wet lands, but even human-made wetlands such as waste water treatment ponds and reservoirs. Therefore, tanks and
tank poramboke lands would definitely require protection from encroachment.
According to the learned Counsel for the petitioner, the Act is unconstitutional because no opportunity is given to the aggrieved parties under
the Act. The learned Counsel for the petitioner relied on the two judgments referred to earlier to show that opportunity must be given. But even in
1975(2) SCR 407, the Supreme Court had held that it is not necessary to hold that the statute is unconstitutional and that when the statute does
not debar observance of principles of natural justice, the authority shall observe them while exercising that statutory powers. The Supreme Court
also held that it is not necessary to have a quasi-judicial trial and ""all that was necessary was to hear objections and spot inspections were needed
before taking a decision"". So, we will also assume that the Act is constitutional and examine how the principles of natural justice can be observed.
In this case, the Survey u/s 3 precedes the notice and the Survey Officer physically surveys the tank. He is assisted by the officers of the Public
Works Department. He enters upon the land to do all acts necessary for the survey of tank. It is only pursuant to this survey that he fixes the
boundaries of the tank u/s 4. Then the charts are prepared u/s 5. After the charts and registers are prepared, public notice is effected u/s 5(3),
Section 3 makes it clear that in the survey, the officer identifies the tanks and the boundaries. He also identifies the areas encroached upon, and the
areas which have been alienated by the Government, in public interest. Any person who is in occupation of the tank as an encroacher, therefore,
would know even on the date of the survey that he is an encroacher in a tank or a tank poramboke which is under the control of the Public Works
Department. It is only thereafter that this notice is issued. Therefore, it is not correct to state that the action in the case of the petitioner was taken
all of a sudden. The requirement of spot inspection as referred to in the judgment of the Supreme Court is more than satisfied by the survey in this
case. Therefore, the encroacher is fully aware that he is squatting on a water body. Only thereafter he was given the notice which is impugned in
the writ petition.
Considering the fact that we have adopted wet land conservation policy which takes note of the environmental value and functions of wet lands
and the fact that they deserve to be protected, the State may take steps to protect all water bodies and not only tanks. In L. Krishnan Vs. State of
Tamil Nadu and Others, , this Court has referred to the judgment of the Supreme Court in Hinch Lal Tiwari Vs. Kamala Devi and Others, , where
the maintenance of ecological balance has been highlighted and this Court has also specifically indicated that it is imperative to see that water
storage resources such as tanks, odais, oranis, canals are not obliterated by encroachers. Right to water is a part of life and, therefore, as observed
by the Supreme Court in Hinch Lal Tiwari Vs. Kamala Devi and Others, , demands of economic development must be made without
compromising the natural resources of the earth which this generation holds in trust for future generation. The order of inter-generational equity has
to be remembered and in fact in the Rio Declaration, to which India is a party, it has been affirmed that environmental protection constitutes an
integral part of sustainable development and cannot be isolated from it.
Persistent developmental activities, ignoring the need to protect natural resources, have caused irreparable damage. It is also necessary that the
State shall not invoke Section 12 of the Act which results in alienation of tank poramboke lands citing ""public interest"". Protection of water
resources is as much as a public interest issue as any other requirement. The Government may also bear in mind that water resources have to be
protected while issuing patta to persons who claim to have resided in the same place for a number of years.
In the result, we dispose of the writ petition in the same lines adopting the same method which the Supreme Court done in the two cases cited
supra The Government of Mysore and Others Vs. J.V. Bhat and Others, and (ii) The Scheduled Caste and Weaker Section Welfare Association
(Regd.) and anothers Vs. State of Karnataka and others, , where the Supreme Court dealt with the Mysore Slum (Improvement and Clearance)
Act, 1958 and without declaring that the Act is unconstitutional since no opportunity is given, we will hold that there is nothing in the Act which
excludes the principles of natural justice. The Act does not specifically indicate that the encroachers do not have a right to be heard and therefore
we issue 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 u/s 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.
The writ petition stands disposed of with the aforesaid directions. There shall be no order as to costs. Consequently, M.P. No. 1 of 2008 is
closed.