BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT
DATED: 09/08/2006
CORAM
The Hon'ble Mr. Justice F.M. IBRAHIM KALIFULLA
and
The Hon'ble Mr. Justice K. VENKATARAMAN
Writ Petition (MD) No. 9827 of 2005
Arokiaraj ... Appellant
Vs.
1. The District Collector,
Tiruchirappalli.
2. The District Revenue Officer,
Tiruchirappalli.
3. The Revenue Divisional Officer,
Tiruchirappalli.
4. The Tahsildar,
Srirengam Taluk Office,
Srirengam, Tiruchi.2.
5. The Commissioner,
Manikandam Panchayat Union,
Manikandam, Trichy.
6. Munian
7. Mayilvahanam
8. Richard
9. P. Rengasamy
10. P. Oppaye
11. Periyasamy
12. Pilavendra Raja
13. K. Muthusamy
14. c. Savarimuthu
15. S. Thomas
16. Savarimuthu ... Respondents
Writ petition filed under Section 226 of the Constitution of India
to issue a Writ of Mandamus directing the 3rd respondent to initiate proceedings
to cancel the patta unlawfully given to the respondents 6 to 16 and direct the
respondents 1 to 5 to remove the encroachments made by the respondents made by
the respondents 6 to 16 in the 'sengulam' pond situate in S.No. 365 Alundur
Village, Manikandam Panchayat Union, Srirengam Taluk, Trichy District.
!For Appellant ... Mr. J. Maria roseline
^For Respondent ... Mr. M. Rajarajan - R1 to R5
Govt. Advocate
Mr. K. Mahendran - R5
Mr. P. Kanagaraj - R6,7,10 & 12 to 15
:JUDGMENT
( Judgment of the Court was
delivered by F.M.IBRAHIM KALIFULLA,J.,)
This is a public interest litigation. The petitioner, who is one of
the Ayyacattudars of water body by name Sengulam situated at S.F.No. 365 at
Alundur Village of Manikandam Panchayat Union, Trichy, seeks for the issuance of
a Writ of Mandamus directing the third respondent to initiate proceedings to
cancel the patta unlawfully issued to respondents 6 to 16 and also direct the
respondents 1 to 5 to remove the encroachments made by the respondents 6 to 16
in Sengulam situated in S.F.No. 365 Alundur Village, Manikandam Panchayat Union,
Srirangam Taluk, Trichy District.
2. According to the petitioner, the water body of Sengulam has been
classified as such in the revenue records of Alundur Village which originally
spread over to an extent of 29 hectares equal to 61.5 ares which was
subsequently curtailed and brought down to 19 hectares equal to 45.5 ares. It
is stated that the said water body was the main source of supply of water for
cultivation to the Ayacutdars in and around the said pond. It is also stated
that by virtue of the encroachments allowed to take place even at the instances
of the revenue authorities, about 40% of the pond was ceased to be of a water
body and such encroachers were allowed to raise Karuvelan trees, which has
consequently affected the water storage facility in the pond. As a sequence
to such an encroachment and depletion in the water storage facility, the ayacut
lands stated to have become dry lands (Tharisu) and thereby forcing the
Ayacutdars to give up cultivation. That apart, it is also stated that because
of the shrinkage of the water body pursuant to the encroachment, the water table
in and around the said village is also stated to have been gone down to a
considerable extent.
3. Having regard to above factors and since the efforts of the
ayacatdars as well as the steps taken by the local panchayat viz., Manikandam
Panchayat Union, not having yielded desired results to remove the encroachments,
the petitioner, as one of the Ayacutdars, has come forward with the present writ
petition.
4. In this writ petition, notice was ordered as early as
28.10.2005. Neither the respondents 1 to 5 nor the alleged encroachers viz.,
respondents 6 to 16 have come forward with any counter affidavit till this date.
In fact, when the writ petition came up for hearing on 12.7.2006, two weeks time
was granted for filing counter by the respondents. Again, since no counter was
filed, the writ petition was adjourned by two more weeks on 26.7.2006 as a last
chance for filing counter. But, no counter has been filed on behalf of the
respondents 1 to 5 or by respondents 6,7.10,12 to 15. Though respondents 8,9
and 11 were served, they failed to appear either in person or through counsel.
5. According to the learned counsel for the respondents 6,7.10 and
12 to 15, they were assigned with the lands situated in S.F.365 in the year 1971
after classifying those lands as ‘waste lands’ and that the respondents have
developed those lands by growing certain fire wood trees and therefore, any
attempt to remove those respondents from the lands in question, would cause
prejudice to them.
6. Having heard the learned counsel for the petitioner, learned
Government Advocate, Mr. Mahendran, learned counsel for the 5th respondent as
well as the learned counsel for respondents 6,7,10 and 12 to 15 and having
perused the material documents placed before the Court, we find that in the
revenue map of Alundur village, the land situated in S.F.No. 365 has been
described as Sengulam with the depth of six feet. The total extent of land has
been mentioned as 29 Hectares equal to 61.5 ares. Similarly, in the revenue
records also, the lands situated in S.F.No. 365 has been described as Sengulam
and the extent of which has been shown as 29 hectares equal to 61.5 ares.
7. However, the learned counsel for the petitioner, who has
produced subsequent sub-divided revenue records wherein S.F.No. 365 has been
sub divided as 365/1 to 17 in which S.F.No. 365/1 alone has been described as
Sengulam and the concerned water body is an extent of 19 hectares and 45.5.
ares. The remaining sub-divided lands in S.F.No. 365 have been shown in the
name of different individuals while the lands in S.F.No. 365/9 have been
described as ‘Panjai tharisu’. The material papers also disclose the
representations made by the local villagers in the year 1997 to the first
respondent as well as the representation of the panchayat union President of
Manikandam to the first respondent in December 1999. The resolution of the
Panchayat Union specifically mentioned that efforts should be taken to restore
the Sengulam water body to its full extent by removing the encroachments.
Thereafter, the Ayacutdars have also made a representation to the respondents 1
to 5 . In their representation dated 23.7.2005 they have explained in detail as
to how the encroachments into the water body of Sengulam has seriously affected
the water storage facility which inturn affected the cultivation of Aycutdars.
The Ayacatdars, therefore, pleaded with the respondents 1 to 5 for removal of
encroachments made in Sengulam and for restoration of the water body to its full
extent. Though on behalf of the respondents 6,7,10 and 12 to 15, it was
contended that valid assignments have been made in their favour, neither the
respondents 1 to 5 nor the respondents 6 to 16 have placed before this Court any
documentary evidence in support of the said claim.
8. Even assuming that any such assignment came to be made in the
year 1971, such action would be in contravention of the constitutional mandate
in respect of the protection and maintenance of the water bodies as has been
stipulated under Article 51-A of the Constitution of India. The Hon’ble Supreme
Court has made a stress on Article 51-A of the Constitution of India and has
held in the decision reported in M.C.MEHTA – Vs. – UNION OF INDIA, 1997, (3) SCC
715 as well as in the decision reported in HINCH LAL TIWARI – Vs.- KAMALA DEVI
AND OTHERS (2001,(6) SCC 496 that every efforts should be taken to maintain such
water bodies and other environments in the interest of public at large. The
wordings of the Supreme Court in para-13 of the said decision that material
resources of the community like forests, tanks, ponds, hillock, mountain etc.
are nature’s bounty and since they maintain delicate ecological balance, they
need to be protected for a proper and healthy environment which would enable the
people to enjoy a quality life which in turn is the essence of the guaranteed
right under Article 21 of the Constitution of India.
9. Again, in the decision reported in M.C. MEHTA – Vs. – UNION OF
INDIA (1997, 3, S.C.C.715) , the Honourable Supreme Court while making a stress
on Article 51(A)(g) of the Constitution of India held that those provisions give
clear mandate to the State to protect and improve the environment and to
safeguard the natural environment including forests, lakes, rivers etc., The
Hon’ble Supreme Court has held as under in para-10:-
” 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”.
Thus, the Hon’ble Supreme Court has gone to the extent of even holding that the
construction activities even in the close vicinity of the lakes should be
limited in order to protect such water bodies.
10. The above said decisions were followed by a Division Bench of
this Court in the decision reported in L. KRISHNAN – Vs. STATE OF TAMIL NADU
REP.BY ITS SECRETARY, DEPARTMENT OF REVENUE (LAND DEVELOPMENT), CHENNAI. (2005
(4) C.T.C. P.1), wherein the Division Bench has issued a Mandamus to the State
Government to restore all water bodies to its original position by removing
whatever illegal encroachments are found by taking appropriate steps in
accordance with relevant provisions of law.
11. Therefore, the encroachments into the present water body viz.,
Sengulam situated in S.F.No. 365 Alundur Village, Manigandam Panchayat Union,
Srirangam Taluk, Trichi District has to be restored to its original position by
the respondents 1 to 5. There is no ground saying that part of the water body
has been assigned in favour of respondents 6 to 16. Such assignment being
wholly illegal, any encroachment on the part of the respondents 6 to 16 have to
be removed and the water body is to be restored to its original extent of 29
hectares equal to 61.5 ares. We, therefore, direct the respondents 1 to 5 to
take appropriate steps for the removal of the encroachments by any one including
respondents 6 to 16 by taking appropriate recourse to law. Such exercise should
be carried out by respondents 1 to 5 expeditiously, preferably, within a period
of three months from the date of receipt of a copy of this order.
12. This writ petition is disposed of with the above directions. No
costs.
To
1. The District Collector,
Tiruchirappalli.
2. The District Revenue Officer,
Tiruchirappalli.
3. The Revenue Divisional Officer,
Tiruchirappalli.
4. The Tahsildar,
Srirengam Taluk Office,
Srirengam, Tiruchi.2.
5. The Commissioner,
Manikandam Panchayat Union,
Manikandam, Trichy.