IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :- 28.03.2011
Coram
The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE
and
The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM
W.P.No.23163 of 2009 &
M.P.Nos.2 & 3 of 2009
S.Venkatesan .. Petitioner
vs.
1.Government of Tamil Nadu
Rep. by its Secretary
Municipal Administration and Water
Supply Department.
2.Commissioner of Municipal Administration
Chepauk,
Chennai 600005.
3.Tindivanam Municipality
Rep. by its Commissioner
Tindivanam.
4.Tamil Nadu Pollution Control Board,
Rep. by its Chairman,
No.76, Mount Salai,
Guindy, Chennai 32. .. Respondents
R4 impleaded as per order dated 21.06.2010
in M.P.No.1 of 2010 in W.P.No.23163 of 2009
PRAYER : Writ Petition filed under Article 226 of the Constitution for issuance of a writ of Certiorarified mandamus to call for the concerned records from the 1st respondent to quash G.O.Nilai No.191 Municipal Administration and Water Supply (Na.Ni.4) Department dated 12.10.2009 issued by the 1st respondent as illegal, arbitrary and contrary to law and consequently direct the respondents to establish the Tindivanam bus stand in a place other than in S.No.33/4 and 36/5 which is part of the Tindivanam Eri.
For Petitioner :Ms.R.Vaigai for Mr.Balan Haridas
For Respondents :Mr.P.S.Raman Advocate General assisted by
Mr.J.Rajakalifulla, G.P. for RR1-2
Mr.P.Srinivas for R3
Mr.R.Raman Lal for R4
*****
O R D E R
THE HON’BLE THE CHIEF JUSTICE &
T.S.SIVAGNANAM, J.
By way of this Public Interest Litigation, the petitioner has prayed for issuance of a writ of Certiorarified Mandamus to quash the Government order in G.O.Ms.No.191, Municipal Administration and Water Supply Department, dated 12.10.2009 and for a direction upon the respondents to establish the Tindivanam bus stand in a place other than survey No.33/4 and 36/5, which is part of Tindivanam eri.
2(i).The petitioner is a resident of Tindivanam and he was born and brought up at Tindivanam and the primary objection raised in this writ petition is regarding the location of the proposed new bus stand at Tindivanam in R.S.No.33/4 and 36/5 measuring an extent of 6 acres, which is classified as Eri.
2(ii) The Case of the petitioner could be summarized as follows:-
The third respondent Municipality made a request on 27.11.1991 to the Government to grant permission to them to enter upon the land comprised in R.S.No.33/4 & 36/5, measuring an extent about 6 acres for the purpose of construction for a new bus stand, pending finalization of the alienation of the land. After a period of more than seven years, the respondent Municipality passed a resolution on 25.05.1998, giving its concurrence for alienation of the said land for the new bus stand and the District Collector recommended the proposal to the Government. The Government by G.O.Ms.No.101, dated 05.03.2001 passed orders for alienation on payment of a sum of Rs.12,79,488/- towards the cost of the land and Rs.1,361/- towards the standing trees. It is stated that the respondent Municipality remitted the amount and land was handed over to the Municipality on 14.01.2003. It is stated that there was public opposition for establishment of the new bus stand in the Eri and the Municipal Council of the third respondent Municipality passed a resolution on 30.07.2004 to establish a new bus stand in survey No.202, measuring an extent of 6 acres, which belonged to the Wakf Board (hereinafter referred to as the Wakf land). It is stated that the Wakf land is situated about 250 mts from the existing bus stand and is within the Tindivanam town. Based on such resolution, steps were taken by the respondent Municipality to appoint a Consultant on tender basis for the establishment of the new bus stand. This resolution of the Municipality appears to have been challenged by way of the writ petition before this Court and the writ petition was dismissed.
(iii) The respondents 2 and 3 proceeded with the necessary formalities to establish the new bus stand in Wakf land. It is stated that the report submitted by the District Collector dated 11.02.2005, certified that the land is suitable for construction of the new bus stand. The Wakf land was proposed to be taken on lease and the Wakf Board agreed upon the lease amount and the same is stated to have been remitted by the Municipality. The Government by G.O.Ms.No.136, dated 15.09.2005, accorded permission to the respondent Municipality to take over the wakf land on lease basis for construction of the new bus stand. While so, the respondent Municipality passed another resolution in its emergency meeting held on 13.06.2006, seeking approval for the construction of the new bus stand in the eri site instead of the wakf land. The petitioner filed a writ petition being W.P.No.19388 of 2006, challenging the said resolution dated 13.06.2006 and for a consequential direction upon the respondent to implement the G.O.Ms.No.136, dated 15.09.2006, where the Government accorded permission to establish the bus stand in the wakf land. The said writ petition along with W.P.No.7243 of 2007, was disposed of by a common judgment and order dated 22.07.2009, with a direction to the Government to take a final decision in the matter. The Government by G.O.Ms.No.191, dated 12.10.2009, permitted the establishment of the new bus stand in the eri site and cancelled the earlier Government order permitting to establish the new bus stand in the wakf land. This Government order in G.O.Ms.No.191 is impugned in this writ petition.
(iv) Grounds of challenge:-
That the action of the Government in passing the impugned order permitting establishment of a new bus stand in eri is illegal and contrary to law. The Government in order to protect water bodies, directed, removal of the encroachments and issued stringent guidelines as to how, such encroachment should be removed from water bodies and in such circumstances, the Government cannot pass an order permitting establishment of a bus stand in a water body. If the bus stand is permitted in the water body, it will result in decimating the water body and will have a devastating impact on the water table and the public will be affected and the damage caused cannot be reversed. The Government by sacrificing the public interest cannot establish a bus stand in a water body. That the Division Bench while disposing of W.P.No.19388 of 2006 and W.P.No.7243 of 2007, directed the Government to take into consideration, the law laid down by the Court, the Government orders insofar as protection of water bodies and directed to decide the issue as to whether the bus stand should be established and without considering the directions, the Government issued the impugned order only based on the financial benefits of establishing the bus stand on an eri over looking the long term impact of the environment. The water in the eri is not only used for irrigation purpose, but it is a source for recharging the ground water and the Government has ignored such factors. It is further stated that the establishment of hospital in the Mundiampakkam eri has no relevance to the present case. While passing the impugned order, there has been no scientific study and no report was obtained from any scientific body about the impact of closing the eri. On the above grounds, the petitioner has sought for quashing the impugned Government order.
3. In the counter affidavit filed on behalf of the respondents 1 to 2, it is stated that the total extent of the eri is 28.01 acres and only an extent of 5 acres is alienated for the construction of the bus stand and the remaining area remains unchanged. An extent of 6 acres including 1 acre of Thoppu Poromboke, which was alienated for the purpose of construction of the new bus stand has been levelled and cleared. Based on the approved civic design, estimate has been prepared to the tune of Rs.818.50 lakhs by the Council in its resolution dated 22.10.2009 and requested the second respondent for financial assistance from the Government and necessary administrative sanction has also been accorded. The District Collector has also recommended the proposal. It is further stated that the Commissioner of Municipal Administration inspected the existing bus stand and the proposed site in the eri and submitted a report justifying the shifting of the bus stand by assigning two reasons, namely that the existing bus stand is highly congested; and the approach road for the bus stand from NH-45 is very narrow and precarious. After inspecting the eri site, it was opined that it is advisable to locate the bus stand in the eri and considering the long term interest, the bus stand could be shifted to the eri site. It is further stated that the meeting was convened by the Revenue Divisional Officer with 23 officials from various department and other dignitaries of the Tindivanam town attended the meeting on 30.10.1999. Inspection was conducted and after detailed discussion, it was held that the eri site was suitable. The Government while granting approval clearly indicated that the exemption granted from the ban orders of the Government prohibiting alienation of land in water bodies with the condition that the site should be used only for the purpose of constructing bus stand. Therefore, the action of the respondents is in public interest and as per norms prescribed to protect water bodies. There are many residents close to the eri than the petitioner and there is not even a single objection from the public to any of the authorities and if the bus stand is shifted, it will be beneficial to the public. As regards the wakf site, it was initially decided to take on lease for 99 years and the conditions were onerous and there are several litigations by the occupiers of the wakf land and by depositing the lease amount, it would cause a drain on the funds of the Municipality. Therefore, it was thought fit to drop such proposal. The Government have issued similar orders alienating portion of the eri land in favour of Krishnagiri Municipality for construction of bus stand and Mundiampakkam eri land for locating a Government Medical College. Therefore, the Government took into consideration all relevant factors and passed the impugned Government in order to sub-serve public interest. It is further reiterated that only five acres of the upper side of the eri is being taken over and there was no water stagnation and the eri has no ayacut and by taking an extent of five acres, no prejudice would be caused as mentioned by the petitioner. The counter affidavit has given details of the various water bodies in Tindivanam town and stated that there are 55 lakes and eris in and around the town and there are bigger lakes and eris in the town than the Tindivanam eri from which five acres of land has been transferred for the bus stand. The technical details of the eri have also been mentioned in the counter affidavit. Further, it is stated that after the formation of the bus stand, the impact on the surrounding areas is very minimal and the over flow from the lake is through a channel situated on the southern side of the land and the proposed bus stand is only on the northern side. Therefore, it is stated that considering all the relevant factors, the Government took a decision to locate the new bus stand in the eri site. The third respondent Municipality through its Commissioner has filed a counter affidavit reiterating the averments made in the counter affidavit filed by the Government.
4. It appears that the Tamil Nadu Pollution Control Board was not impleaded as a respondent in the writ petition and this Court by order dated 21.06.2010 in M.P.No.1 of 2010, directed the impleadment of the Tamil Nadu Pollution Control Board as the fourth respondent in the writ petition. In the counter affidavit filed by the Board, it has been stated that this Court by order dated 01.03.2010, directed the Board to consider the application dated 26.02.2010, submitted by the respondent Municipality for grant of consent and pass appropriate orders. Pursuant to the order, the petitioner was requested to appear for a personal hearing on 05.04.2010 and on a request made by the petitioner for an alternate date, the personal hearing was held on 12.04.2010 and the petitioner appeared for the hearing and submitted his oral and written submissions. That the Board constituted an expert committee comprising of Assistant Professor from Anna University, Superintending Engineer from PWD Ground Water Division, Superintending Engineer from Agricultural Engineering Department and the Committee inspected the site and submitted its report. These were considered by the Consent Clearance Committee in its meeting held on 07.09.2010 and Consent Clearance Committee directed the respondent Municipality to make certain alterations in the layout plan and considering all the factors, order of consent dated 11.11.2010 was issued. If the writ petitioner is aggrieved by such order of consent his remedy is to file an appeal as contemplated under Section 28 of the Water Act and Section 31 of the Air Act and the writ petition is not maintainable. It is further stated that the project does not require the clearance under the Environment Impact Assessment Notification dated 14.09.2006, as the proposed built up area is much less than what is covered under the notification. Finally, it is stated that while granting consent, the Board has imposed sufficient conditions to safeguard the environment and preservation of the water body.
5. Ms.R.Vaigai, the learned counsel appearing for the petitioner after reiterating the stand taken in the affidavit filed in support of the writ petition submitted that the impugned Government order has been passed ignoring direction issued by the earlier Division Bench of this Court in its order dated 22.07.2009, wherein the Division Bench took note of various factors including the report of the Revenue Officials dated 19.12.1994, wherein it was opined that the proposal of the transfer of the eri land may be given up. Further, the learned counsel invited our attention to the Government order in G.O.Ms.No.136 dated 15.09.2005, by which the Government agreed to establish the new bus stand in the wakf site and that the said Government order was also taken note by the earlier Division Bench while disposing of the writ petitions. Further, it is stated that the earlier Division Bench took note of the fact that the respondent Municipality passed the resolution dated 13.06.2006, when earlier two Government orders were neither cancelled nor withdrawn. Further, it is pointed out that the Division Bench had observed that while passing G.O.Ms.No.101, the Government did not consider the impact of the transfer of the eri land for the proposed new bus stand. It is further submitted that the earlier Division Bench took note of all the factors and then remitted the matter to the Government to pass appropriate orders as indicated by the Division Bench and the impugned Government order has been passed in utter discard to the directions issued. Further, it is submitted that the Tamil Nadu Pollution Control Board was not consulted and inspite of a direction issued by the Division Bench on 21.06.2010 to furnish documents to the petitioner, the Pollution Control Board did not comply with the said direction. The order passed by the Pollution Control Board granting consent is against the order passed by the earlier Division Bench and the law enacted by the State Government for the protection and preservation of water bodies and therefore, the impugned order calls for interference.
6. The learned counsel further submitted that in terms of the notification issued by the Central Government dated 14.09.2006, under the Environment Protection Act and Rules framed thereunder, it is mandatory to obtain prior clearance from the Environment Impact Assessment Authority and in terms of Clause 8 of the schedule to the notification r/w the General Condition (GC), prior Environment Impact Assessment Clearance is mandatory. The learned counsel submitted that in terms of the General Condition any project specified in category ‘B’ of the notification will be treated as a category ‘A’, if it is located in a notified eco-sensitive area and in terms of the State Laws enacted for the purpose of preserving water bodies, the eri in question is undoubtedly an eco-sensitive area and therefore prior clearance is mandatory. The learned counsel further submitted that in the impugned order, reliance has been placed on earlier Government order in G.O.Ms.No.101, which cannot be done in view of the earlier Division Bench Judgment, which remanded the matter for fresh consideration. The impugned Government order is a mechanical reiteration of the earlier order and it has been passed unmindful in the earlier Division Bench order and economic pros and cons alone were taken into consideration while passing the impugned order. If six acres of water body are taken then the entire eri would be affected and it would be against public interest. In support of her contention, the learned counsel placed reliance on the decision of the Hon’ble Supreme Court in (2001) 6 SCC 496 [Hinch Lal Tiwari vs. Kamala Devi and others], (2006) 6 SCC 371[Karnataka Industrial areas vs. C.Kenchappa and others] and a Division Bench Judgment of this Court in 2005 (4) CTC 1[L.Krishnan vs. State of Tamil Nadu].
7. The learned Advocate General and the learned Government Pleader appearing for the respondents 1 & 2 and submitted that the notification issued by the Central Government is not applicable to the present project as it would apply only to building and construction projects about 20000 sq.mtrs and below 1,50000 sq.ft. of built up area and the proposed construction is only 6832.55 sq.mtrs and therefore, no clearance is required from the Environment Impact Assessment Committee. It is further submitted that the Tamil Nadu Pollution Control Board granted an order of consent both under the Water Act and Air Act and after an expert body examined the application and several changes have been made in the lay out plan to protect the eri. It is further submitted that the eri in question is a rain fed water body and during summer, it is dry and the Government proposed to increase the existing depth of the eri by 8cms(1.31 inches) or in the alternative to increase the bund height to the same extent and if the same is done, it will maintain the capacity of the eri and no prejudice would be caused. Further, as per the order of consent, rain water harvesting has to be done, there is a Green belt area and a buffer zone has to be created and these conditions sufficiently safeguarded the preservation of the area. Further, the learned Advocate General submitted that as per the revenue records, the eri in question is not a source of irrigation as contended by the petitioner and only during 1998 and 2005, the eri reached its full capacity and if the deepening of the eri is done or the tank bund is increased in height, it would sufficiently take care of any situation in the event there is maximum in flow of water. The learned Advocate General by relying upon a topo sketch of Tindivanam town submitted that the proposed site is very near to the new bye-pass road and locating the new bus stand at this site would be in the interest of the travelling public and the existing bus stand is highly congested and the condition prevailing therein is precarious and if the bus stand is allowed to be located in the present site, it would satisfy the need of the public of the Tindivanam town as well as the other travelling public, who have been denied such benefit for the past 20 years. Therefore, it is submitted that the writ petition is devoid of merits and liable to be dismissed. In support of his contention, the learned Advocate General placed reliance on the decision of the Division Bench of this Court in (2008) 7 MLJ 876 [K.Balamurugan and others vs. State of Tamil Nadu].
8. The learned counsel appearing for the Pollution Control Board took us through the various conditions imposed in the consent orders issued by the Board and submitted that a thorough study has been conducted by the expert committee before the Consent Clearance Committee considered the issue and the petitioner has been afforded an opportunity to submit his oral and written submissions before the committee and after carefully examining all the factors, the order of consent has been issued.
9. We have elaborately heard the submission of the learned counsel appearing for the petitioner, the learned Advocate General and the learned Government Pleader appearing for the respondents 1 & 2 and the learned Standing counsel appearing for the third respondent Municipality and the Pollution Control Board and perused the materials available on record.
10. The petitioner is a native of Tindivanam town appears to have a grievance as regards the location of the new bus stand at Tindivanam. From the averments made in the affidavit and on hearing the submissions of the learned counsel for the petitioner, it is clear that the petitioner is not opposing the establishment of a new and modern bus stand, but his grievance is that it should not be located in the present site, which is part of an eri (water body). Broadly, the objections raised by the petitioner is three fold. Firstly, on the ground that the wakf site is more suitable and the Government has also approved the same and without establishing the bus stand in the said site, the respondent Municipality passed a resolution to locate the bus stand in the eri site and recommended the same to the Government and inspite of the Government having rejected the said proposal earlier, thought fit to approve the same on the second time. That these issues were placed before the Division Bench of this Court in an earlier writ petitions in W.P.Nos.19388 of 2006 and 7243 of 2007 and the Division Bench after elaborately considering all the issues, directed the Government to reconsider the matter. In such circumstances, the Government cannot rely upon the earlier Government order and state that the bus stand has to be located in the eri site. Secondly, it is contended that a Division Bench of this Court in the case of L.Krishnan vs. State of Tamil Nadu, referred supra, directed the State Government to take necessary legal steps to remove all the encroachments in water bodies to its original position, so that the suffering of the people of the State due to water shortage is ameliorated. After the order passed by the Division Bench, the State Government enacted a law for the protection of the water bodies, namely the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 and in utter derogation to the said Act, the impugned order has been passed converting a water body for a bus stand. Therefore, the State Government’s action is arbitrary and against the statue framed by the State Government. Thirdly, it is contended that the Tamil Nadu Pollution Control Board has not conducted any scientific study about the impact of the conversion of the eri into a bus stand and in terms of the notification issued by the Central government dated 14.09.2006, the present project is in a notified eco-sensitive area and therefore, prior concurrence of the Environment Impact Assessment Authority is essential and admittedly, no such approval has been obtained and therefore, the impugned order is liable to be set aside. Apart from the above primary submissions, the learned counsel appearing for the petitioner submitted that the encroaching to an extent of six acres in water body is objectionable and the Government cannot place any reliance on the decision taken by them to construct a Government Medical college in Mundiampakkam eri as the facts in the said case are entirely different and in the instant case, the Government themselves admitted that the lake is used for storage of water and therefore, impugned order is unsustainable.
11. Before, we examine the facts of the case, it would be necessary to look into certain decisions of the Hon’ble Supreme Court in such matters and the view taken by the Hon’ble Supreme Court in that regard. The Hon’ble Supreme Court took note of the fact that the traditional concept of development and ecology are opposed to each other is no longer acceptable and that Sustainable Development is an acceptable principle in the present day context. This concept is a balancing concept between ecology and development and the same has now been accepted as a part of the customary international law though its salient features were yet to be finalised by the international law jurists. Their Lordships in Vellore Citizens’ Welfare forum vs Union of India and others, AIR 1996 SC 2715:(1996) 5 SCC 647 summarized the vital principles and held as follows:- :
11. Some of the salient principles of Sustainable Development, as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that The Precautionary Principle and The Polluter Pays Principle are essential features of Sustainable Development. The Precautionary Principle in the context of the municipal law means:
(i) Environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.
12. The Polluter Pays Principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India1. The Court observed: (SCC p. 246, para 65)
… we are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country.
The Court ruled that: (SCC p. 246, para 65)
… once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on.
Consequently the polluting industries are absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas. The Polluter Pays Principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of Sustainable Development and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
12. The learned counsel appearing for the petitioner placed reliance on the decision of the Hon’ble Supreme Court in Hinch Lal Tiwari vs. Kamala Devi and others, referred supra, in the said case, the dispute related to a plot of land, which was a pond and decision was taken to allot the pond area to certain persons. On an application made by the appellant therein, the Additional District Collector cancelled the allotment and which was confirmed by the Commissioner in revision. The said order was challenged before the High Court of Judicature at Allahabad and the writ petition was partly allowed, which led to the filing of an appeal before the Supreme Court. In the said Judgment, the Hon’ble Supreme Court observed as hereunder:-
13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are natures 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.
13. In yet another decision in Intellectual Forum Triupathi vs. State of Andhra Pradesh, 2006 3 MLJ 201 (SC), the validity decision of the Government of Andhra Pradesh to hand over to tanks to the Andhra Pradesh Housing Board came up for consideration. While considering the said case, the Hon’ble Supreme Court by applying the doctrine of sustainable development struck a balance between the requirement of protection of environment as at the same time the need for housing and gave certain conditions for implementation of the project. The Hon’ble Supreme Court in Tamil Nadu Godavaram Thirumulpad (104) vs. Union of India, (2008) 2 SCC 222:(2008) 1 MLJ 997, analyzed the principle of “Sustainable Development” and the need to balance the developmental needs of the society and held as follows:-
3. As a matter of preface, we may state that adherence to the principle of sustainable development is now a constitutional requirement. How much damage to the environment and ecology has got to be decided on the facts of each case. While applying the principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of the future generations to meet their own needs is sustainable development. Therefore, courts are required to balance development needs with the protection of the environment and ecology. It is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity (see A.P. Pollution Control Board v. Prof. M.V. Nayudu1). Mining is an important revenue-generating industry. However, we cannot allow our national assets to be placed into the hands of companies without a proper mechanism in place and without ascertaining the credibility of the user agency.
14. A Division Bench of this Court in K.Balamurugan vs. State of Tamil Nadu, referred supra, while dealing with the public interest litigation questioning decision of the Government to locate a medical college in a lake, took note of the above referred decisions of the Hon’ble Supreme court and culled out the legal principle and summarized the same on the following lines:-
36.On an analysis made from the above decisions, we find that the following principles have to be kept in mind while dealing with the issue relating to environmental protection viz.,
(i) Natural resources which includes lakes, forests, rivers, wildlife 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.
(ii) The public trust doctrine is more than an affirmation of State power to use public property for public purposes.
(iii) The Courts when confronted with a situation where violation of such public trust doctrine is put against the State, the Courts while scrutinizing such actions of the State, have to make a distinction between the State’s general obligation to act for the public benefit, and the special obligation which is entrusted with it as a trustee of such public resources.
(iv) The three types of restrictions on Governmental authority as stated by Prof. Sax, assumes significance which are as follows:
(a) The property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
(b) The property may not be sold, even for fair cash equivalent;
(c) The property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources.
(v) The Court has to strike a balance between sustainable development and environment protection.
15. Thus as per the principles laid down by the Hon’ble Supreme Court natural resources like lakes, rivers etc., are held by the State as trustee of the public and can be disposed of only in the manner that is consistent with the nature of such trust and the property subject to trust must not only be used for public purpose, but it must be held available for used to general public and the Court has to strike a balance between the sustainable development and environment protection.
16. In the case on hand, several reasons have been assigned by the Government in support of their order and the measure of lacuna pointed out by the learned counsel appearing for the petitioner is that the impugned order is bad in law on account of not obtaining prior approval of the Environment Impact Assessment Authority and no scientific assessment was made by the Pollution Control Board. The Pollution control Board has made a definite assertion stating that the clearance of the Environment Impact Assessment Authority is not required. Therefore, we shall examine this aspect. In terms of clause 2 of the notification dated 14.09.2006, all projects falling under category ‘A’ of the notification shall require prior environment clearance from the regulatory authority and matters falling under category ‘B’ shall require the clearance State level authority. The State level authority has been constituted under clause 3 of the notification and the various stages of such clearance are adumbrated in the clause 7 of the notification. It has been stated that the proposal of the construction of new bus stand is with a built up area of 6832.55 mtrs. Clause 8 of the schedule to the notification deals with building/construction projects/ area development projects and townships. Clause 8(a) deals with building and construction projects and the category within the threshold limit has been mentioned as building and construction projects above 20000 sq. meters and below 1,50,000 sq. meters of built up area. Therefore, clause 8(a) would be attracted only in respect of such projects, whose built up area is within the above limits. Thus, if the present new bus stand project is taken, it is proposed to have a built up area of 6832.55 sq. meters, which is far less than the threshold limit prescribed under the notification. Therefore, in our view clause 8(a) of the notification is not an attracted. However, the learned counsel for the petitioner submitted that as per the General Condition (GC) of the notification, states that any project specified in category ‘B’ of the notification will be treated as a category ‘A’, if located in whole or in part within 10km from the boundary of a notified eco-sensitive area. According to the petitioner, since the State of Tamil Nadu has already enacted a law for protection of water bodies by taking note of the direction issued by this Division Bench of this Court in the case of L.Krishnan, (referred supra) Tindivanam eri is a notified eco-sensitive area, therefore the current new bus stand project will fall in category ‘A’ and therefore prior concurrence of the authority is required. However, we are not persuaded to accept the submission of the learned counsel for the petitioner for the reason that we cannot infer that by virtue of the enactment passed by the State Government all water bodies in the State are to be treated as notified eco-sensitive areas. If such interpretation is given than the expression “notified” used in the General Condition would loose its significance. We are convinced to say so by reading the other clauses under the General Condition for example clause (i) of the General conditions states that protected areas notified under the Wildlife (Protection) Act, similarly clause (ii) states critically polluted areas as notified by the Central Pollution Control Board. Therefore, a notification shall be either in the Government gazette or in terms of the procedure contemplated under the respective statute. No record has been placed before this Court to show that the Tindivanam eri is one such notified water body under any of the enactments. The object the State Act is for removal of encroachment of water bodies, lakes, tanks etc., therefore by virtue of such legislation one cannot infer that all water bodies in the State of Tamil Nadu have been automatically notified as eco-sensitive areas.
17. Therefore, we are of the clear view that the notification issued by the Central Government dated 14.09.2006, has no application to the facts and circumstances of the case and therefore, the question of obtaining prior approval of the competent authority under the notification does not arise. Further allegation is that the Pollution Control Board has not conducted any scientific study. We have perused the counter affidavit filed by the Pollution Control Board as well as the memo submitted by the counsel for the Board. It is seen that the petitioner was granted an opportunity of personal hearing initially on 05.04.2010 and subsequently, on his request, the hearing was adjourned to 12.04.2010 and he participated in the hearing and gave his oral and written submissions. Thereafter, the Board has constituted an expert committee consisting of three experts, an Assistant Professor of Anna University, the Superintending Engineer of PWD Ground Water Division and the Superintending Engineer from Agricultural Engineering Department. The expert committee inspected the site on 20.05.2010 and placed its report before the Consent Clearance Committee of the Pollution Control Board in its meeting held on 07.09.2010, the Consent Clearance Committee examined the matter and directed the respondent Municipality to make alterations in the lay out plan. It appears that based on such direction, the Municipality submitted a revised lay out plan and the same was considered and order of consent was issued by the Board. At this stage, it would be useful to refer to special conditions have been imposed by the Tamil Nadu Pollution Control Board while granting consent:-
7. The Municipality shall plant trees with thick canopy cover in the space to extent possible and shall have the ornamental shrubs in between them. Green belt shall be developed to control odour and noise in view of the residences nearby.
8. The Municipality shall adopt safe and environment friendly management practices within the premises.
9. The Municipality shall establish the bus stand as per the modified layout plant submitted in letter dated 04.10.2010, in such a way that the vacant space of more than 1 acre shall be left over on southern and western side (lake side) of the bus stand.
10. This 1 acre vacant land shall be used for rain water harvesting, green belt development and also act as a buffer zone between the bus stand and the lake. A cut off drain shall be provided on southern side to collect the surface run off and it shall be connected to the rain water harvesting structure.
11. The Municipality shall provide piezometric well to monitor the ground water quality.
12. The Municipality shall provide a sewage treatment plant to treat the sewage from the bus stand as per the proposal submitted in letter dated 04.10.2010. The treated sewage shall be used for toilet flushing and green belt.
13. The Municipality shall not allow any water servicing of vehicles inside the Bus stand.
14. The Municipality shall have proper solid waste collection and disposal arrangement for the bus stand.
15. The Municipality shall protect the remaining 23.01 acres of Tindivanam lake free from encroachments, dumping of solid wastes, letting out of sewage and from other environmental damages.
16. The Municipality shall ensure for deepening of the lake as proposed by PWD so as to maintain the water holding capacity at the original level.
17. The Municipality shall ensure that the bus stand shall be a plastic free zone. The vendors in the bus stand shall not use plastic carry bags.
18. Apart from the above certain General conditions have also been imposed under the Water Act namely
Clause 3. The unit shall construct compound wall around the boundary of the unit.
Clause 6. The consent does not authorize or approve the construction of any physical structures or facilities, of the undertaking or any work in any natural watercourse.
19. Thus it cannot be stated that there has been no scientific assessment of the application submitted for grant of consent. The conditions imposed as referred to above, in our view sufficiently safeguards the public interest in preserving the area. As noticed above, the consent specifically imposes as condition that the bus stand shall be established in such a way that the vacant space of more than one acre shall be left over on the southern and western side (lake side) of the bus stand. Further, the Municipality has been directed to ensure for deepening of the lake as proposed by the PWD so as to maintain the water holding capacity at the original level. We have further noticed that the total extent of the eri is 28.01 acres and out of which an extent of five acres is being carved out for the purpose of establishing the bus stand. On an examination of the conditions imposed by the Pollution Control Board, it cannot be stated that the entire water body has been either closed down or totally obliterated. In any event, the purpose for which the land is required is also for a public purpose to subserve the interest of the general public, given such a situation, we are guided by the law laid down by the Hon’ble Supreme Court, where the Court is required to strike a balance between sustainable development and environment protection.
20. Yet another contention was placed by the learned counsel appearing for the petitioner stating that the impugned order has been passed in utter disregard to the direction issued by a Division Bench of this Court in an earlier round of litigation in W.P.No.19388 of 2006 etc. In the said batch of cases, the petitioner herein was also one among the petitioner and he had filed W.P.No.19388 of 2006, in the said writ petition prayer was sought for to declare the resolution passed by the Tindivanam Municipality to establish a new bus stand in the Tindivanam Eri. Elaborate submissions appeared to have been made before the Division Bench and ultimately, the Division Bench after taking into consideration the various Government orders, the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 and the decision of the Hon’ble Supreme Court, in paragraph 38 of the Judgment observed that merely on the basis of the report in the counter affidavit, they are unable to come to a definite conclusion that the water body will not be affected. Therefore, the decision of the Government become relevant in the facts of the case. Further, the Division Bench proceeded to hold that it is appropriate that the Government to look into the proposal in the light of the law laid down by the Courts and also keeping in mind the various Government orders and the law enacted for protection of water bodies. Further, the Bench observed, it is the Government’s role to look into the need of the public for utilities like the bus stand and also to protect the environment, the water bodies etc. These observations are a clear indication that the Division Bench had in mind that the interest of the public as well as the protection of environment should be balanced. Therefore, ultimately the Division Bench held that the Government has to make a final decision one way or other and the Court cannot substitute its view as to which the Government order will be more appropriate and should be followed and the Court will not supplement its view as to how the Government to proceed with the resolution of the Municipality or to direct the Government to implement the earlier Government order in G.O.Ms.No.101. Therefore, the entire matter stood relegated back to the Government for fresh consideration. As noticed above, there has been a scientific assessment by the Pollution Control Board and the Government by striking a balance between public interest and environment have come forward with the proposal by the impugned Government order. Therefore, we are fully convinced that the impugned order does not in any manner ignore the direction of the earlier Division Bench order and in effect has followed the direction indicated by the Division Bench. Hence, we are not persuaded to accept the submission of the learned counsel for the petitioner in this regard.
21.As noticed above, the petitioner is not averse to the idea of establishing a new bus stand, but his only complaint was regarding the location. We are fully satisfied and convinced that by balancing the interest of environment and the need of the general public of the Tindivanam town and other travelling public, a balance has to be struck in such a way that there is no environmental degradation, at the same time protecting the interest of the general public.
22. As noticed above, in the Tindivanam town there are 55 lakes and eris in and around the town and there are bigger lakes and eris in the town. It is only 5 acres of land of Tindivanam Eri has been transferred for the bus stand. It has not been disputed that the land in question is not a pond or tank rather it is an eri land which is used for the storage of water during rainy season. Out of the total chunk of eri land only 5 acres is to be used for the purpose of constructing a Bus Stand which is the dire need and demand by the public for the last two decades. More over, the land situates near the highway which is most suitable place for the Bus Stand. The construction of Bus Stand is neither hazardous nor dangerous for the people rather it would serve much more interests of the public at large, who are facing difficulties because of the location of a small Bus Stand in an unsuitable area. Hence, we are of a definite opinion that the construction of a Bus Stand will not cause much damage to the environment and ecology if sufficient safeguards and conditions are imposed for the purpose of sustainable development.
23. The learned Advocate General has stated that the proposal is to either deepen the tank or raise the tank bund so that the original capacity of the eri is not affected. In fact, this is one of the condition imposed by the Pollution Control Board while granting consent. Thus, we are fully convinced that the project should be allowed to be proceeded with and the bus stand should be allowed in the site now selected and that alone would be subserve public interest. However, such establishment of the bus stand shall be strictly in accordance with the conditions imposed by the Pollution Control Board and the same shall be monitored by the Board by conducting periodical inspection during the process of construction of the bus stand and even after completion thereof and at periodical intervals. We may add that as under taken by the Municipality that they shall deepen the eri or either increase the tank bund to ensure the total capacity as it is in existence as on date, therefore, we are propose to make the same as the precondition.
24. Thus, for the above reasons, while declining to grant the relief sought for by the petitioner, we dispose of the writ petition by observing that prior to the commencement of the project for construction of the new bus stand in S.F.Nos.33/4 and 36/5 Tindivanam Taluk, the respondents 2 & 3 shall first ensure that the eri is either deepened to the extent required or the tank bund is increased to the required height. The project cannot be commenced unless the deepening or increase in tank bund height is done. On completion of the said work, the Tamil Nadu Pollution Control Board shall make a site inspection and certify compliance of such requirement. It is only thereafter, the Municipality shall be entitled to commence the project of construction of the new bus stand. No costs. Consequently, connected miscellaneous petitions are closed.
(M.Y.E.,C J) (T.S.S.,J.) 28.03.2011 Index :Yes/No Internet:Yes/No pbn/sm To 1.Government of Tamil Nadu Rep. by its Secretary Municipal Administration and Water Supply Department. 2.Commissioner of Municipal Administration Chepauk, Chennai 600005. 3.Tindivanam Municipality Rep. by its Commissioner Tindivanam. 4.Tamil Nadu Pollution Control Board, Rep. by its Chairman, No.76, Mount Salai, Guindy, Chennai 32. THE HON'BLE THE CHIEF JUSTICE and T.S.SIVAGNANAM, J. pbn/sm Pre-Delivery Order in W.P.No.23163 of 2009 28.03.2011.