IN THE HIGH COURT OF JUDICATURE AT MADRAS
W.P.No.1294 of 2009
T.K.Shanmugam Secretary, C.P.I. (M) North Chennai District Committee, 52, Cooks Road, Perambur, Chennai – 600 011.
... Petitioner
Vs
- The State of Tamil Nadu Rep., by its Secretary to Govt., Department of Revenue, Fort St., George, Chennai – 600 009.
- the State of Tamil Nadu Rep., by its Secretary to Govt., Department of Public Works, Fort St., George, Chennai – 600 009.
- The Collector, Chennai District, Chennai.
- The Collector, Thiruvallur District, Thiruvallur.
- Chennai Metropolitan Development Authority, Rep., by its Chairman, Egmore, Chennai – 600 008.
- The Managing Director, Chennai Metropolitan Water Supply and Sewerage Board, Chennai – 600 002.
- C.Balakrishnan
- Sivakasi Vattara Vari Selutthuvor Sangam (Sivakasi Region Tax Payer's Association), Reg No.81 of 1994, Rep., by its President Mr.K.Mariappan, Old No.110, New No.448, Kamaraj Road, Sivakasi Virudhunagar District.
....Respondents
CORAM: THE HON'BLE Mr.SANJAY KISHAN KAUL, CHIEF JUSTICE THE HON'BLE Mr.JUSTICE M.SATHYANARAYANAN, and
THE HON'BLE Mr.JUSTICE T.S.SIVAGNANAM
DATED: 30.10.2015
DATED: 30.10.2015
ORDER
The petitioner, Secretary of a political party, has filed this Writ
Petition designed as a Public Interest Litigation praying for a direction
upon the Collector, Chennai District and the Collector, Thiruvallur
District, respondents 3 and 4 herein to grant patta and regularize the encroachment in Survey Nos.1, 2 and 4 (Parts) in No.60, Menambedu
Village and in Survey No.813 in No.61, Korattur Village, Ambattur
Taluk in terms of Government Orders in G.O.Ms.No.854, dated
30.12.2006, read with G.O.Ms.No.579, dated 03.10.2008, issued by
the Secretary to Government of Tamil Nadu, Department of Revenue,
the first respondent in terms of the decision of the Division Bench of
this Court in the case of Sivakasi Region Tax Payers Association vs.
State of Tamil Nadu reported in 2008 (5) MLJ 1425.
2. Before we go into the point of reference laid before the Full
Bench, it would be necessary to have a prelude on the factual
scenario. The petitioner seeks to canvass the case of the encroachers
in the lands in question and seeks for a direction to the Revenue
Authorities to grant patta to them in accordance with the Government
Orders dated 30.12.2006 and 03.10.2008. The petitioner is said to
have submitted a representation on 17.12.2007 to the Hon'ble Chief
Minister to grant patta to the encroachers in lakes/water bodies, which
no longer retain the characteristic of a water body. On 18.06.2008, a
representation was submitted with reference to the subject
encroachment in Korattur Eri and a request was made for grant of
patta by reclassifying the land in question. The petitioner would state that Greater Chennai consists of Chennai Corporation area and about
176 sq.kms of Thiruvallur District and 376sq.kms of Kancheepuram
District. It is further stated that North Chennai area extends to about
464.53 sq.kms and the density of the population is quite high. The
petitioner would state that the Government issued G.O.Ms.No.854,
which was a great reprieve for the weaker sections of the society and
about 40,000 families submitted applications for grant of patta.
Though G.O.Ms.No.854 was a one time scheme for regularizing the
encroachments, subsequently, vide G.O.Ms.No.579, the scheme was
extended upto 30.09.2009. The petitioner would state that the
encroachers in the subject area had also submitted applications for
grant of patta in terms of G.O.Ms.No.854 and when those applications
were pending, eviction notices were issued to the encroachers between
November 2007 and July 2008 stating that the encroachment is in a
water body and this notice appears to have been issued pursuant to
directions of the First Bench in W.P.No.25776 of 2006 and
W.P.No.17915 of 1993, dated 04.10.2007. Those Writ Petitions were
filed as Public Interest Litigations seeking for Writ of Declaration to
declare the encroachments in water bodies and water courses,
construction made thereon either with permission of the State by way
of reclassification or issuance of patta or without permission of the State to be declared illegal, unconstitutional and crime against
mankind and consequently for direction to remove all types of
encroachment, restore all water bodies or water course to their
original shape, size, capacity etc., and to initiate departmental and/or
criminal action against the erring officials. The Writ Petition were
disposed of by issuing the following directions:-
7.Having considered the difficulties expressed by the learned Government Pleader in carrying out the process of removal of encroachments, we pass the following the order:(i) The secretaries, Public Works Department, in consultation with the respective District Collectors, are directed to decide the programme of evicting the encroachments in the water bodies falling in Categories 'A' and 'B' referred to above, by the end of November, 2007 and complete the process of removal of above, by the end of May, 2008.(emphasis supplied)(ii) The State Government is at liberty to consider, in appropriate cases, grant of alternative sites for re-location of the encroachers, as per their policy decision. All the authorities concerned like the legal authorities as well as the police officials, will extend their full co-operation to the Public Works Department/District Collectors for effectively implementing the policy decision of the Government of removal of encroachments from water bodies.(emphasis supplied).(iii) No civil court shall entertain any suit or proceeding in connection with the removal of the encroachments in the water bodies and every person, who has put up any 7 construction in such water bodies and who is aggrieved by the action taken by the authorities of removal of such encroachment from the water bodies, is at liberty to move this Court under Article 226 of the Constitution of India and all such applications shall be placed before the First Bench of this Court.(iv) The State Government is directed to identify and take stern action against the land grabbers who have sold the lands in the water bodies to innocent purchasers, which would act as a deterrent. The survey numbers of the lands in various water bodies in question are directed to be notified and the Registration Department concerned is directed not to register any transaction in respect of such lands falling under the water bodies.(emphasis supplied)(v) In respect of the Porur tank, the respondents have already removed all the encroachments and the said water body is free of any encroachment. In case any encroachment is made on the water body in future, it will be open for the authorities to remove such encroachment even without issuing any notice to such encroachers.(vi) It is also made clear that even after the encroachments from the water bodies are removed as per the policy decision of the State Government, the respective District Collectors shall keep a close watch over such water bodies and in case of any fresh encroachment thereon, the District Collectors are at liberty to remove the same with the help of police, wherever necessary, without any notice to such encroachers.(emphasis supplied)The learned counsel for the petitioners state that certain tanks and eris in kakkalur, Chitlapakkam and Thirunindravur are not covered by the list furnished by the State Government. Mr.Raja Kalifulla, learned Government Pleader, however, submits that the State Government will follow the procedure enumerated above in respect of these water bodies also and wherever possible, remove the encroachments within the time frame fixed by this Court.The Secretary, Public Works Department shall file the Action Taken Report before this Court on or before 15 th June, 2008.
3. It is submitted that Korattur Tank, which is subject matter of
the present Writ Petition, is one among 19 water bodies in which
encroachments were directed to be cleared and the petitioner confines
this Writ Petition to Survey Nos. 5 to 7 of Menambedu Village and
Survey No.813 of Korattur village. The petitioner seeks to justify the
demand of the encroachers for grant of patta by stating that the water
in the Korattur tank was declared as unfit for drinking purpose by the
Chennai Metropolitan Water Supply and Sewerage Board (CMWSSB)
and there are approximately 3400 persons who have constructed
houses of which 900 of them having served with eviction notices by
the officials of the Public Works Department. The petitioner would
further state that pursuant to orders passed by the Government in
G.O.Ms.No.417, dated 03.09.2003, 29 lakes around the Chennai City were transferred to the control of CMWSSB for augmentation of the
Chennai City Water Supply and the Korattur lake is one among the 29
lakes and therefore, it appears to be the contention of the petitioner
that the Public Works Department could not have initiated action for
eviction. The petitioner would further state that the encroachers have
been issued Ration cards, Voter Identity Cards and their houses have
electricity service connection and several of them have purchased the
land in question by registered sale deeds and all of them belong to the
lower income group and largely daily wage earners. The petitioner
would further state that the validity of the G.O.Ms.No.854, was upheld
by the Division Bench in the case of Sivakasi Region Tax Payers
Association (supra), and in the light of the observations made by the
Division Bench, the encroachers who have encroached the subject area
are entitled for regularization of their encroachment in terms of the
said Government Order. Thus, the petitioner contends that the benefit
of the G.O.Ms.No.854, should be extended to the encroachers, their
encroachments to be regularized after reclassification of the land as
has been done to similarly placed persons, failing which it would be
discriminatory and violative of Article 14 of the Constitution of India.
The petitioner would further state that the water body having fallen to
disuse, it is open to the Government to grant patta to the encroachers and if their occupation is not regularised, they would be put to great
hardship and would be rendered homeless.
4. Mr.N.G.R.Prasad, learned counsel for the petitioner submitted
that in terms of G.O.NO.854, dated 30.12.2006, the encroachers of
the land in question are entitled for grant of patta as admittedly the
land is no longer a water body and the Government Order provides for
a method by which house site patta can be granted even in respect of
lands which have been classified as water way poromboke. It is
further submitted that the validity of G.O.Ms.No.854, has been upheld
by the Division Bench in the case of Sivakasi Regional Tax Payer
Association case and the Division Bench took note of the decision in
the case of L.Krishnan vs. State of Tamil Nadu reported in 2005
(4) CTC 1 and held that G.O.Ms.No.854, is not illegal. It is further
submitted that the encroachers hail from the economically lower strata
of society and they are daily wage earners and have been in settled
occupation for several years and they should not be dislodged from the
area in question, more particularly, when the area is no longer a water
body, though it has been classified as such in the Revenue records.
The learned counsel placed reliance on the decision of the Hon'ble
Supreme Court in the case of Susetha vs. State of Tamil Nadu Civil Appeal No.3418 of 2006, dated 08.08.2006, [reported in (2006) 6
SCC 543], and in the case of Animal and Environment Legal Defence
Fund vs. Union of India, W.P.(Civil) No.785 of 1996, dated 05.03.1997
[Reported in (1997) 3 SCC 549].
5. The Collector of Chennai, third respondent in her counter
affidavit submitted that Survey No.53/2(Part) of Kolathur village is
classified as “Eri (ulvai)”, sarkar poramboke, vested with the
Government and corresponds to T.S.No.2/1, Block No.4 and it is an
objectionable water course land. It is further submitted that as the
said land is a water course land, pattas cannot be granted to the
encroachers as sought for by the petitioner. It is further submitted
that the Government Orders referred to by the petitioner speaks about
regularisation of encroachments in unobjectionable sites and therefore,
the Government Orders cannot be applied to the cases canvassed by
the petitioner. Further, it is submitted that this Hon'ble Court has held
that no encroachment shall be allowed on water bodies and they have
to be removed as immediately as possible and therefore, the question
of granting patta does not arise.
6. The Intervener, the 8th
respondent, an association called the
Sivakasi Region Tax Payers Association, submits that the decision in
the case of L.Krishnan (supra), has been approved by the Hon'ble
Supreme Court in the case of Jagpal Singh vs. State of Punjab
reported in (2011) 11 SCC 396 and in view of the same even those
Water Bodies which are not covered under the purview of the Tamil
Nadu Protection of Tanks and Eviction of Encroachment Act, 2007,
(Tank Act), if encroached, are liable to be removed. It is further
submitted that Section 11 of the Tank Act states that the provisions of
the said Act shall be in addition to and not in derogation of any other
law for the time being in force and therefore, the provisions of the
Tamil Nadu Land Encroachment Act, 1905, (Encroachment Act) and
the provisions of the Revenue Standing Orders (RSO), could be
invoked for removal of encroachments in water bodies not covered
under the provisions of the Tank Act. It is further submitted that the
Association filed two Writ Petition in W.P.Nos.16626 of 1995 and
W.P.No22274 of 2007, questioning the validity and correctness of
G.O.Ms.No.867 and G.O.Ms.No.854, which provided for regularisation
of encroachment and both the Writ Petitions were dismissed by
common order dated 29.04.2008, (2008-5-MLJ-1425- Sivakasi Region
Tax Payers Association vs. State of Tamil Nadu), against which the association has preferred appeal before the Hon'ble Supreme Court in
S.L.P.No.20061-62 of 2008 and they are pending and without
prejudice to their right to pursue the matter before the Hon'ble
Supreme Court, seek to intervene in this proceedings to assist this
Court. It is further submitted that the Government of Tamil Nadu
during the period from 2008 to 2014, have passed ten Government
Orders for regularisation of encroachments and the petitioners have
challenged the same in particular, the encroachments in Water Body,
as there is a need to protect water bodies.
7. The learned Additional Advocate General submitted that the
provisions of the Tamil Nadu Land Encroachment Act was upheld by
the Hon'ble Supreme Court in the case of Pandia Nadar vs. State of
Tamil Nadu reported in (1974) 2 SCC 539 and by virtue of the
provisions of the Encroachment Act, the Government is entitled to
evict the encroachments from the Government Land. The learned
Additional Advocate General produced copy of the Government Letter
dated 07.09.2015, written by the Secretary to Government, Revenue
Department, to the District Collector, Chennai District stating that after
issuance of G.O.Ms.No.854, 16363 encroachments in water course
poramboke have been regularised upto 30.06.2007, and in view of the stay granted by this Court, encroachments in water course poramboke
have not been regularised and necessary instructions were issued to
the Collectors vide Government Letter dated 09.07.2007, to restrain
the further issue of house site pattas in water bodies and water course
poromboke until further orders and the scheme was lastly extended in
G.O.Ms.No.372, dated 26.08.2014, upto 31.03.2015, to regularise the
encroachments in unobjectionable poramboke alone and as of now,
there is no Scheme or Government Orders to regularise the
encroachments in water course poramboke. Thus the factual position
that emerges is that after 30.06.2007, the Government has not
regularised encroachments in water course poramboke and as of now,
there is no Scheme or Government Orders to regularise such
encroachments.
8. The learned Amicus, who was appointed to aid and assist the
Court, placed before us the various decisions on the point namely,
L.Krishnan vs. State of Tamil Nadu reported in 2005 (4) CTC 1;
Susetha vs. State of Tamil Nadu reported in (2006) 6 SCC 543;
Anti Corruption Movement, Rep., by General Secretary vs.
Govt., of Tamil Nadu reported in 2008-1-MLJ-417; Sivakasi
Regional Tax Payers Association vs. State of Tamil Nadu reported in 2008-5-MLJ-1425; A.Rajendran vs. Tamil Nadu
Pollution Control Board reported in (2009) 8 MLJ 1041;
S.Amutha vs. The District Collector reported in 2010-1-CWC-570;
The Shozhanganallur Phase I and Pase II TNHB affected
Residents Welfare Association, rep., by its Secretary
K.Appadurai vs. The Shozhanganallur Township Panchayat
Union & Ors., reported in 2010 (4) CTC 189; T.S.Senthilkumar
vs. Government of Tamil Nadu & Ors., reported in 2010-3-MLJ771; S.Venkatesan vs. Government of Tamil Nadu & Ors.,
reported in 2011 (1) CWC-913; and the decision of the Division
Bench in W.P.(MD).No.1496 of 2014, dated 06.08.2014, R.Lakshmnan
vs. Government of Tamil Nadu & Ors.
9. We have heard the learned counsels appearing for the
parties and the learned Amicus and given our anxious consideration to
the submissions made.
10. The order of reference dated 05.08.2015, passed by the
First Bench in W.P.No.1294 of 2009, reads as follows:-
The public interest litigation seeks patta rights for the persons who have encroached on land, which is undisputedly water course land. The claim of the petitioner is predicated on 16 a long period occupation.2. The submission of the learned counsel for the petitioner is that the judgment of the Division Bench of this Court in L.Krishnan vs. State of Tamil Nadu (2005 (4) CTC 1) seeking removal of encroachment from water bodies is general in character, as also the observations of the Honourable Supreme Court in different judicial pronouncements. He submits that this aspect has been examined by the Division Bench of this Court in Sivakasi Region Tax Payers Association vs. State of Tamil Nadu, rep., by its Secretary to Government & Others (CDJ 2008 MHC 2127), where it has been observed that in pursuance to the judgment of the Division Bench of this Court in L.Krishnan's case (supra), the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, came into being. This Act provides for checking encroachment and eviction of encroachment in tanks which are under the control and management of Public Works Department. It is, thus, submitted that such of the tanks which do not fall within the purview of the Act cannot be subjected to requiring protection from encroachment and this, persons like the petitioner cannot be evicted.3. The question thus arises for consideration is whether the provisions of the said Act in effect in any manner dilutes the wider compass of the observations made in L.Krishnan's case (supra) or any other judgments of the Hon'ble Supreme Court, requiring protection of water bodies.4. We are of the view that this matter needs to be examined by a Larger Bench of this Court. Papers be prepared. The matter be laid before the Full Bench on 02.09.2015.5. We appoint Mr.Naveen Kumar Murthi as Amicus to 17 assist us in this matter and a complete set be supplied by the Registry to him.
11. To answer the reference, it would be necessary to take
note of the circumstances under which the Tank Act was enacted and
the other related proceedings.
12. A Public Interest Litigation was filed by one Mr.L.Krishnan
seeking for a direction against the Government and the Revenue
Officials to remove encroachments made by certain private parties in a
Odai Poramboke in Villupuram District. While disposing of the Writ
Petition, the Division Bench pointed out that ponds, tanks and lakes
have been an essential part of the people's natural resources, however
in recent years, these have been illegally encroached by unscrupulous
persons and this has had adverse effect on the lives of the people.
Further, it was pointed out that day in and day out, many petitions are
filed by way of Public Interest Litigation alleging encroachments into
ponds/tanks/lakes/odai Poramboke etc., in different parts of the State,
more particularly in villages. Having regard to the acute water scarcity
prevailing in the State of Tamil Nadu, it was pointed out that a time
has come where the State has to take some definite measures to
restore the already earmarked water storage tanks, ponds and lakes as disclosed in the revenue records to its original status as part of its
rain water harvesting scheme. The Court took judicial notice of the
action initiated by the State Government by implementing the water
harvesting scheme as a time bound programme. It was further
pointed out that it is imperative that such natural resources provided
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. After referring to the decision
of the Hon'ble Supreme Court in the case of Hinch Lal Tiwari vs.
Kamal Devi reported in (2001) 6 SCC 496, it was held that the
endeavour of the State should be to protect the material resources like
Forests, Tanks, Ponds etc., in order to maintain ecological balance,
which would pave the way to provide a healthy environment and
enable the people to enjoy a quality life, which is essence of the right
guaranteed under Article 21 of the Constitution. It was further held
that 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, odai, oornis,
canals etc are not obliterated by encroachers. Reference was also
made to Article 48A of the Constitution. The Division Bench after
referring to the other decisions of the Hon'ble Supreme Court in Kesavananda Bharathi vs. State of Kerala reported in (1973) 4
SCC 225; Animal and Environment Legal Defence Fund vs. UOI,
reported in (1997) 3 SCC 549; M.C.Metha vs. UOI reported in
(1997) 3 SCC 715, issued certain directions. The directions issued
were two fold firstly, a positive direction to remove the encroachments
over odai poramboke which was complained of in the said Public
Interest Litigation, secondly a direction to 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.
13. After the judgment in the case of L.Krishnan, the State
Government enacted the Tank Act as an Act to provide for checking
the encroachments, eviction of encroachments in tanks which are
under the control and management of Public Works Department,
protection of such tanks and for matters incidental thereto. In the
statement of objects and reasons, it is stated that under the existing
scenario, it has become imperative to protect the water bodies from
damages and encroachments, the tanks and its components, if not protected, and restored to its original capacity, may cause reduction in
area of cultivation, depletion of Ground Water, environmental
degradation and loss of production of food grains. Though this was the
object for enacting the law, the Government thought fit to restrict the
applicability of law to the tanks which are under the control and
management of the Public Works Department.
14. During the relevant time, the Sivakasi Region Tax Payers
Association filed Writ Petitions challenging the Government Orders in
particular in G.O.Ms.No.854, which paved way for regularising
encroachments on Government lands including lands classified as
water course Poromboke and the validity of the Government Order was
upheld by judgment dated 29.04.2008, with certain observations.
15. Certain provisions of Tank Act namely, Sections 4 to 10
were challenged in a Writ Petition with a prayer to declare those
provisions as null and void and contrary to Article 14 of the
Constitution of India on the ground that those provisions confer upon
the executive, unguided and uncanalised discretionary power, since
they denied to the persons aggrieved an opportunity of being heard.
The said Writ petition was heard by a Division Bench to which one of us (M.Sathyanarayanan,J.) was a party. The Division Bench took note
of the various decisions including the decision in the case of Sivakasi
Region Tax Payers Association (supra), disposed of the Writ Petitions
without declaring the provisions of the Act as unconstitutional, since no
opportunity is given and held that there is nothing in the Act which
excludes the principles of natural justice, the Act (Tank Act) does not
specifically indicate that the encroachers do not have right to be heard
and issued the following directions vide judgment dated 10.02.2010,
reported in 2010 3 MLJ 771,
(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 under Section 12 of the Act. The meaning and weight of the words "public interest" shall be implicitly borne in mind.(emphasis laid)(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. (emphasis laid)(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. (emphasis laid)(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.
16. The Division Bench while issuing the above directions noted
that persistent developmental activities, ignoring the need to protect
natural resources, have caused irreparable damage and it is necessary
that the State does not invoke Section 12 of the Tank Act which results
in alienation of tank poramboke lands citing public interest. That
protection of water resources is as much as a public interest issue as
any other requirement and 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. Among the directions issued by the Division Bench, the
direction issued in sub-para (d) and sub-para (e) are very relevant to
the present issue. The State was reminded of its responsibility in
holding water bodies as it is held in public trust and much weightage
should be given for protecting them, if not more as allowing house
sites or other buildings to come up on such tanks or tank poramboke
lands and water charged lands. The State was exhorted to bear in
mind the provisions of the Tank Act and the objects and reasons for enacting the same, while considering the request for grant of patta to
those who claimed to have resided in the same place for a number of
years and if necessary modify the Government orders to make sure
that the implementation of the Government Orders are not in violation
of the very valuable and important enactment.
17. Though the judgment upholding the validity of the Tank Act
was rendered on 10.02.2010, wherein directions were issued, one
among which was a positive recommendation for modifying the
relevant Government Orders, nothing appears to have been done by
the Government except to extend the benefit of the Government Order
in G.O.Ms.No.854, from time to time and the last of such extension
was made upto 31.03.2015. Thus, it is clear that but for the order of
stay granted in the Writ Petitions, the Government would have
implemented G.O.Ms.No.854, even to encroachments in water bodies
and the same has been put on hold since July 2007.
18. In the case of Jagpal Singh (supra), certain trespassers
unauthorisedly occupied an extent of land in a village which was a
pond and the trespassers filled the village pond and made construction
thereon. Action for eviction of the unauthorised occupants was initiated, but the Collector, Patiala, held that it would not be in public
interest to dispossess the encroachers and directed the Grama
Panchayat to recover the cost of the land, thus regularising the
illegality. On appeal by some third parties to the Commissioner, the
order of the Collector was set aside, holding that the Grama Panchayat
was colluding with the encroachers. The Commissioner held that the
village pond has been used for the common purpose of the villagers
and cannot be encroached upon by any private parties. Against the
order of the Commissioner, a Writ Petition was filed before the High
Court which was dismissed by the learned Single Judge and affirmed
the Division Bench. This order was put to challenge before the Hon'ble
Supreme Court wherein it was pointed out that the appellants therein
were trespassers who illegally encroached on the Grama Panchayat
lands by using muscle power and money power in collusion with
officials of the Grama Panchayat and such kind of patent illegality must
not be condoned and even if houses have been built on the land in
question they must be ordered to be removed and the possession of
the land must be handed back to the Grama Panchayat. It was
further pointed out that many State Governments have been issuing
orders permitting allotment of Grama Sabha land to private persons on
payment of some money and all such Government Orders are illegal and should be ignored. Referring to the decision in Hinch Lal Tiwari
(supra) which was followed in L.Krishnan (supra), it was held that
land recorded as pond must not be allowed to be allotted to anybody
for construction of house or any allied purpose and a similar direction
was passed in the said case also. Ultimately, a direction was given to
all State Governments in the country that they should prepare
schemes for eviction of illegal/unauthorised occupants of the grama
sabha/grama panchayat/poramboke/shamlat land and these must be
restored for the common use of the villagers of village. It was further
directed that the scheme should provide for speedy eviction of such
illegal occupants after giving them a show cause notice and a brief
hearing, long duration of such illegal occupation or huge expenditure in
making construction thereon or political connection must not be
treated as a justification for condoning the illegal act or for regularising
their illegal possession and regularisation should only be permitted in
exceptional cases namely, where lease has been granted under some
Government notification to landless/labourers or members of the
schedule caste/schedule tribe or where already a school, dispensary or
other public utility was on the land. Copy of the order was directed to
be sent to all Chief Secretaries of all State Governments/Union
Territories of India, who were directed to ensure strict and prompt compliance of the order and submit compliance report to the Hon'ble
Supreme Court from time to time.
19. The above direction issued by the Hon'ble Supreme Court
appears to have not been complied by the State of Tamil Nadu, as the
instruction given by the Secretary to Government, Revenue
Department shows that even after the decision of the Hon'ble Supreme
Court, which was rendered on 28.01.2011, the Government of Tamil
Nadu has been repeatedly issuing Government Orders and the last of
such order having been issued in G.O.Ms.No.372, dated 26.08.2014.
Thus, to say the least the Government of Tamil Nadu is in contempt of
the order passed by the Hon'ble Supreme Court.
20. In the case of R.Lakshmnan (supra), a Public Interest
Litigation was filed before the Madurai Bench of this Court to restore
the capacity of the water bodies as on date of the 1923 survey. The
Writ Petition was disposed of by directing the Government to issue
appropriate direction which should be mandatory in nature to all local
bodies, including Corporation, Municipalities and Panchayats not to
grant any planning permission for any construction that is put up in a
water body and not to grant approval for any lay out or building plan, if the land is located either in part or in whole, in a water body and
directing the Government to contemplate issuing of an order under the
Tamil Nadu Town and Country Planning Act making it mandatory to
enclose a certificate of the Revenue Authority along with building plan
application, certifying that no part of the land is located in a water
body and wrong information if provided, the person who issued the
certificate to be held responsible. Further direction was issued to
preserve and protect the water bodies and complete the exercise
already undertaken within a period of one year and Civil Courts not to
grant any interim protection order restraining the authorities from
evicting a person from a water body. This decision was rendered by
the Division Bench on 06.08.2014, fixing a prematory time limit of one
year which has already lapsed. Nothing has been placed on record by
the first and second respondents that the order of Division Bench has
been complied with. Thus, this is the third default committed by the
Government of Tamil Nadu.
21. We may now refer to certain provisions of the RSOs with
particular reference to water bodies. Part II of the RSO deals with
disposal of land. RSO 15(5) states that only land, the assignment of
which is unobjectionable shall be assigned, lands acquired for
communal purposes shall not be assigned, tank-bed lands should on no account has been assigned without consulting an appropriate
technical officer including the Chief Engineer and without specific
orders from the Government. RSO 15(38)(ii) deals with water course
poramboke and states that great care should be taken to preserve the
margins of canals, channels and streams and the transfer and
assignment of such water course source poramboke can be ordered
only by Government in consultation with the Commissioner of Land
Administration and the Chief Engineer (PWD), vide G.O.Ms.No.1267,
Revenue, dated 29.12.1997. General Instructions given for Land
Administration states that encroachments in poramboke lands like
water sources/courses, gracing grounds, temple lands, kalam, etc., are
considered as highly objectionable and these encroachments have to
be evicted. The Revenue, Public Works and Highways Department
authorities and local bodies like Municipalities and Corporation have
been empowered to evict unauthorised encroachments after giving due
notice under the Tamil Nadu Land Encroachment Act, 1905, for which
a District level Committee under the Chairman of the District Collector
has been constituted. Insofar as the directions contained in the RSO
which are inconsistent with any other subsequent enactment or
decision of this Court or the Hon'ble Supreme Court are deemed to
have been superseded.
22. The common thread which runs through the manual of
Revenue Administration is to preserve water courses as such. Though
certain Government Orders were issued during 1970s, permitting
assignment of Tank-beds with due permission, if those Government
Orders seek to regularise illegal encroachment in tank-beds, water
channels or area abutting and on margins of water channels to that
extent the Manual of Revenue administration and the Government
Orders are deemed to have been superseded, more particularly in the
light of the directions issued by the Hon'ble Supreme Court in the case
of Jagpal Singh (supra). However, the manual of Revenue
Administration does not specifically state about assigning tank beds for
a different user or concession to house site etc after reclassification.
23. The legal position being thus, we are required to decide as
to whether the provisions of the Tank Act does in any manner dilute
the observations made in L.Krishnan's case, which view was quoted
with approval in Jagpal Singh's case. After having perused the
decisions referred supra, the only answer to this question should be in
the negative. We support our conclusion with the discussion in the
following paragraphs.
24. The Division Bench in L.Krishnan's case referred to the
decision of the Hon'ble Supreme Court in the case of Hinch Lal
Tiwari, wherein the importance of tanks/ponds etc was highlighted in
the following terms:-
13. 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." (emphasis supplied)
25. After referring to the above observations, it was pointed
out that having regard to the precarious water situation prevailing in
major part of the year in the State of Tamil Nadu, it is imperative that
water storage resources such as tanks, ponds, odai, canals, etc., are
not obliterated by the encroachers. The observations made by the
Hon'ble Supreme Court in the case of M.C.Metha, (supra), observing
that the “precautionary principle” makes it mandatory for the State Government to anticipate, prevent and attack the cause of
environment degradation. Ultimately, the Division Bench directed the
State Government to identify all such 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 resource which has been
classified, as such in the revenue records to its original position.
26.Thus, the Division Bench in L.Krishnan, did not limit its
direction to water bodies under the control of the Public Works
Department. In fact, it has issued directions for all natural water
resources in the different parts of the State of Tamil Nadu and
wherever illegal encroachments are found to take steps for removal of
the encroachments in accordance with the relevant provisions of law.
The State Government thought fit to enact the Tank Act and though
the object of the enactment was couched on a border principle, the Act
was restricted to the encroachments in tanks which are under the
control and management of the Public Works Department. The
question would be as to whether this would in any manner alter the
position or could have an effect of diluting the directions/observations
of the Division Bench in L.Krishnan's case. The answer to this
question shall be an emphatic “NO”.
27. Section 11 of the Tank Act, specifically states that the
operation of other laws not to be affected, as the provisions of the
Tank Act shall be in addition to and not in derogation of any other law
for time being in force. Thus, the encroachments in respect of water
bodies which are not covered under the provisions of the Tank Act
have to be necessarily removed by resorting to the procedure under
the Land Encroachment Act. We are not inclined to ignore the
directions issued by the Division Bench in L.Krishnan's case, as
general observations, as observed in Sivakasi Region Tax Payers
Association's case. We may hasten to add that in L.Krishnan's, the
Division Bench issued positive direction to the State Government and
this cannot be brushed aside as general observations and more so in
the light of the observations in the case of Jagpal Singh, wherein
pointed directions were issued by the Hon'ble Supreme Court to all the
Chief Secretaries. In Sivakasi Region Tax Payers Association's case
though the Division Bench upheld the G.O.Ms.No.854, it held that the
said G.O., must read along with the provisions of the Land
Encroachment Act, Tank Act and Standing Orders of Board of Revenue.
If that be the interpretation, the question would be whether the State
Government would be empowered to issue Government Orders for
regularising encroachments in water bodies on the ground that the water body has lost its character and it is no longer a water body on
account of disuse. We may answer this query by referring to the
observations of the Hon'ble Supreme Court in the case of Jagpal
Singh :-
19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years. 20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.
28. The Hon'ble Supreme Court further observed that when a
pond is falling to disuse, the Government including the Revenue
Authorities should bestow their attention to develop the same. Their Lordships further held that the Government Orders issued by the
various State Governments permitting allotment of Grama Sabha lands
to private persons and commercial enterprises to be illegal and to be
ignored. Commenting upon the Government letter dated 26.09.2007,
issued by the Government of Punjab, regularising the possession of
unauthorised occupant, as not valid opined that such letters
(Government Letters) are wholly illegal and without jurisdiction and
such illegality cannot be regularised.
29. Reverting back to the Sivakasi Region Tax Payers
Association's case, in paragraph 28, it was observed that it should not
be misunderstood, as if the Division Bench was suggesting that all
encroachments should be regularised or encouraged, but the State
Government to take a conscious decision, if the land on which there
are encroachments for a long period and such land is not required for
any public purpose or for the State and a person remaining in adverse
possession for more than 30 years acquires such right over the
property. The other observations contained in para 30 of the
judgment are that the Government Order (G.O.No.854) makes it
amply clear, where the environment is not affected in the sense, the
area is not in use as lake or water source either natural or artificial and not required for any public use and for the use of the State then only
the property can be settled.
30. With respect we do not agree with the said observations,
since the object of the enactments which have held the field from 1905
does not speak of any such exemption, rather the underlying principle
was to preserve and protect water bodies. It is to be noted at this
juncture, during summer, water bodies would appear dry, but during
rainy days/monsoon, stream would be in place to drain/take the water
to the water bodies and percolation takes place which in all probability
results in surcharge of ground water. Thus, on account of the default
of the Revenue officials or on account of collusion of official machinery
with encroachers can hardly be a premium to justify encroachments.
The theory of adverse possession, would not stand attracted in such
cases. The encroachers are infact trespassers into Government
property. In terms of the Standing Orders of the Board of Revenue,
the Village Administrative Officer has a duty to report any
encroachment in any Government land in his village. The present
scenario of rampant encroachment is on account of the failure of the
Revenue Administration to protect Government lands. As observed
T.N.Senthilkumar, (supra), the State holds all the water bodies in
public trust for the welfare of this generation and all succeeding generation. Thus it would be preposterous to suggest that a
trespasser with or without the connivance of the officials enters into
occupation of Government land, gradually defaces its identity then
puts forth a plea that it is a no longer a water body or a water channel
and seeks for regularisation of his trespass be rewarded with a patta.
If such acts of trespassers/encroachers are to be treated as
pardonable and be rewarded for their illegal act in the form of
regularisation/accommodation to say the least, it would be an absolute
degradation and collapse of the public trust vested with the State to
protect the lands and water bodies. If the Government is interested in
allocating the poor and downtrodden, it should bring out a scheme for
rehabilitating them and not to condone their act of trespass, reclassify
the law and then grant patta to those encroachers.
31. We may at this stage examine the origin, scope and object
of the Public Trust Doctrine. Most scholars identify the Justinian code
of sixth century Rome as the genesis of the Public Trust Doctrine - the
doctrine of “res communes” which claims that some things are
‘common to mankind - the air, running water, the sea, and
consequently the shores of the sea [and] the right of fishing in a port,
or in rivers, is common to all men
1
. It has been further observed that the title to these essential resources was vested in the State, as the
sovereign, in trust for the people. Res communes were excluded from
private control and the trustee was charged with the duty of
preserving the resources in a manner that made them available for
certain public purposes. It has been further explained that the legal or
moral concept of common ownership later emerged as more of a
reservation of ‘a series of particular rights to the public’ to engage in
certain activities, thus limiting ‘the prerogatives of private ownership’.
There is therefore now a nearly universal notion that resources such as
watercourses should be protected from complete private acquisition in
order to preserve the lifelines of communal existence. The common
property resources are those resources not controlled by a single
entity and access to which is limited to an identifiable community of
individuals or states. No one user has the right to abuse or dispose of
the property. Any dealing with the property has to take into account
the entitlements of others. Besides, users of common property share
rights to the resource and are subject to rules and restrictions
governing the use of those resources. In England, this concept
appears in the common law, particularly through the writings of Bracton and Flecta, England’s Magna Carta, and commentary by
Blackstone. Paragraph 5 of the Magna Carta made explicit reference
to the guardianship of land extending the guardianship to houses,
parks, fish ponds, tanks, mills and other things pertaining to land. As
early as 1865, the English House of Lords defined the concept of public
trust in the case of Gann v Free Fishers of Whitstable, House of Lords,
3 March 1865, 11 E.R. 1305 (1865) 11 H.L. Cas. 192, holding that the
bed of all navigable rivers where the tide flows, and all estuaries or
arms of the sea, is by law vested in the crown. But this ownership of
the crown is for the benefit of the subject, and cannot be used in any
manner so as to derogate from, or interfere with the right of
navigation, which belongs by law to the subject of realm. This
imposed a high fiduciary duty of care and responsibility upon the
sovereign
4
. Further elaborating the concept of public trust, the
English Common Law distinguished between property that was
transferable to private individuals and property that was held in trust
for the public traditionally waterways. The property held in trust for
the public is the dominant estate and encapsulates the public’s trust
rights, ranging from fishing, fowling and navigation to other broader
rights like recreation.
32. Whatever approach is taken, the fundamental emphasis is
on communal rather than private rights. In cases where communal
rights protector negates the rights of some, it implies a denial of the
application of the Public Trust Doctrine. Natural resources have
traditionally been found either under the sovereignty of a particular
state or in the so-called global commons. Where the resources are
held by a state, the essence of the Public Trust Doctrine is that the
state or governmental authority, as trustee, has a fiduciary duty of
stewardship of the public’s ‘environmental capital’. Thus it is the duty
of the State to protect, conserve and augment traditional water
retaining structures.
33. The Supreme Court of the United States of America in
Illinois Central Railroad Co. v. People of the State of Illinois
[146 US 387 = 36 LEd 1018 (1892)], pointed out that the State
holds 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
recognise and is not in execution of this trust, is permissible.
34. In Michigan Law Review, Vol.68, No.3 (Jan.1970), Pages
471-566, Prof. Sax said that three types of restrictions on
governmental authority are often thought to be imposed by the public trust doctrine, namely:
“1. 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;2. the property may not be sold, even for fair cash equivalent;3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources.”
35. The Hon'ble Supreme Court in Indian Council for EnviroLegal Action v. Union of India [(1996) 5 SCC 281], held that
there should not be development at the cost of environment and vice
versa, but there should be development while taking due care and
ensuring the protection of environment.
36. Thus, the public trust doctrine requires that natural
resources such as lakes, ponds etc., 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.
37. Bearing the above legal principle in mind, we have to
consider as to whether by virtue of the various Government Orders
issued from time to time infringes or violates the public trust doctrine
with particular reference to water bodies.
38. In 2006, the Government issued G.O.Ms.No.854, with a view to alleviate the grievances of people, who are residing in Government
lands for more than two decades. The Government thought fit to
regularise those encroachments provided that the land is not required
by the Government for their use and while doing so, took note of the
directions issued by this Court in W.P.No.20186 of 2005, dated
27.06.2005, to protect the water body porombokes. Ultimately, the
Government thought fit to grant patta to persons who have
encroached into Government land and are residing there for over ten
years provided the Government does not require the land in question.
The process by which pattas were to be issued, was also stipulated in
the said Government order. In terms of para 4(vii), the said
Government Order was issued as a one time special scheme for six
months from February, 2007. However, the Government extended
the scheme upto 31.12.2007. The Hon'ble Chief Minister made a
statement that three lakhs house site pattas have to be issued to the
poor till 31.03.2008. Based on such statement, the Government
issued another order in G.O.Ms.No.498, dated 05.09.2007, issuing
certain clarifications and instructions for grant of house site patta and
extended the benefit of the earlier one time scheme upto 31.03.2008.
By G.O.Ms.No.34, dated 23.01.2008, the Government reduced the
period of encroachment to five years as against the earlier requirement of ten years and once again stated that it is a one time
special scheme and extended the benefit of the scheme upto
30.09.2010. Subsequently, by another order in G.O.Ms.No.43, dated
29.01.2010, the Government directed regularisation of encroachments
over three years as against the requirement of five years. This
Government Order was put to challenge by the Sivakasi Region Tax
Payer's Association in W.P.No.18486 of 2010, and the First Bench of
this Court by order dated 13.08.2010, directed the said Government
Order in G.O.Ms.No.43, shall not be implemented. Thereafter, the
Government vide G.O.Ms.No.372, dated 26.08.2015, extended the
benefit of the free house site patta scheme from 01.10.2013 to
31.03.2015. From the orders passed by the Government from time to
time, it appears that the Government has indirectly promoted and
encouraged encroachments and but for the interim order granted by
this Court in W.P.No.18486 of 2010, all that a person who was
desirous of obtaining a free house site patta has to encroach into the
Government property and show that he has been in occupation of the
said land for a period of three years. The Government Order does not
make any specific distinction with regard to lands, which have been
classified as water bodies. In the preceding paragraphs, we have dealt
with the public trust doctrine and what is the role of the Government in promoting such doctrine with particular reference to water bodies. To
state the least, the Government Orders with particular reference to
regularisation of encroachment in water bodies is a clear breach of the
public trust reposed on the Government which is enjoined upon a duty
to protect the same.
39. Going back to the decision of the Division Bench in the case
of Sivakasi Region Tax Payers Association (supra), the Division Bench
in paragraph 27 of the judgment observed that if any particular pond
or water channel, artificial or natural had fallen into dis-use for a very
long period and if persons have encroached upon such lands, whether
a direction can be issued for eviction and as to whether such of those
persons who have encroached upon such lands have acquired any right
under the law relating to limitation or any policy of the State where the
Government in its wisdom decides to confer certain right on such
persons. In paragraph 31 of the judgment, the Division Bench held
that G.O.Ms.No.854, is legal. However, we may note the observations
in paragraph 28 of the judgment, the Division Bench observed that it
should not be misunderstood for a moment that they are suggesting
that all encroachments should be regularised or encroached, but if the
State Government takes a conscious decision to regularise certain encroachments, which have continued for a pretty long period after the
appropriate authority comes to a conclusion that such land is not
required for any public purpose or for the State, the same would be
within the jurisdiction of the Government to take a policy decision in
the matter. We have our reservations in accepting the reasoning given
by the Division Bench in paragraph 28.
40. As noticed above, the Division Bench while adding a word of
caution that they are not advocating a general principle to regularise
all encroachments or encourage them observed that if the State
Government takes a “conscious decision” to regularise certain
encroachments and if the land is not required for any public purpose,
the State Government would be well within the jurisdiction to do so.
Thus, the question would be as to what is a “conscious decision” and
what would be the manner in which the appropriate authority will come
to a conclusion that the land is not required for public purpose. In our
view a “conscious decision” in such cases with particular reference to
encroachment in water bodies should be in consonance with the public
trust reposed on the Government in respect of such lands (water
bodies). The State being a trustee of these natural resources such as
tanks, lakes etc., has to necessarily act consistent with the nature of such trust. The vesting of these lands and water bodies with the
Government is to benefit the public and any attempt made by the
Government to act in a manner derogatory to the object for which the
land was vested, has to held to be illegal. The underlying fundamental
principle being that such rights are public rights are in a higher
pedestal than private rights. We may take a look of the matter from a
different perspective. The Government has considered that water
bodies, which have fallen into dis-use and have been encroached upon
could be declared as not required for any public purpose and the
encroachments could be regularised. What the Government has failed
to see is the cause as to why these water bodies, lakes, tanks have
fallen into dis-use. If this aspect is analysed, it would come to light
that in several cases the disuse was man-made and there appears to
be a cartel, which systematically works with a view to grab
Government property. In such scenario while taking a “conscious
decision”, the Government cannot ignore the fiduciary duty of care and
responsibility cast upon it and simultaneously analyse as to why such
dis-use has occurred. The plethora of decisions on the point elucidate
the basic principle of the public trust doctrine when the water bodies
vest with the Government, placing the Government in the capacity of a
trustee, there is little option except to strictly adhere to the trust and faith reposed and if the Government has failed to protect these water
bodies, it amounts to breach of the public trust and in such cases, the
duty of the Government is more onerous to restore the land back to its
original position and thereby restore the trust reposed on it.
Therefore, we are not inclined to accept the proposition that merely
because a water body has put to dis-use that by itself would be a good
ground to regularise the encroachments.
41. The next aspect would be as to how and in what manner the
appropriate authority would come to a conclusion that such land is not
required for any public purpose or for the State. It may be a policy
decision in this regard, but such policy decision has to satisfy the
touch-stone of fairness and reasonableness and satisfy Article 14 of
the Constitution of India. Reading of the Government Orders show
that the decision taken with regard to a particular land is not required
for the Government for any public purpose is largely based on report
submitted by the officials of the Revenue Department and invariably
the justification is that people have been residing for a long period of
time and there has not been any flow of water into tank/lake for
several years or the water is unfit for human consumption. In our
view, this can hardly be a justification, since the Revenue Authorities have turned a blind eye to encroachments on lands which have,
canals/channels through which the water flows into such water bodies.
Once again the Government having failed to protect those feeder
channels and canals cannot sight that as an excuse to say that there is
no flow of water into the tank/lake and therefore, they would be
justified in recommending regularisation of the encroachments.
42. Initially the Government thought fit to bring about a scheme
for regularisation of encroachment in 2006 as a one time measure as a
special scheme for such of those persons, who have been in
occupation of the Government lands for over 20 years. Though such
was the proposal, when the Government issued the order in
G.O.Ms.No.854, the Government fixed the minimum period to be in
occupation (encroachment) as 10 years. The basis of fixing 10 year
period has not been disclosed nor does the Government Order
explicitly state about the same, when the proposal was to recognise
people in illegal occupation for over 20 years. The procedure to be
adopted to ascertain the period of illegal occupation has not been
clearly set out. This will and has led to arbitrariness, favourtism and
nepotism. Though this was a one time scheme, the Government
periodically extended the validity of the scheme and the last of such
extension is upto 31.03.2015. Thus, to term the scheme as a one time scheme is a farce and appears to be an eyewash.
43. The second and more disturbing aspect is that the minimum
period of illegal occupation was abruptly and arbitrarily reduced to five
years and further reduced to three years and there is absolutely no
justification for reducing the period of illegal occupation to get the
benefit of regularisation. However, the Government Order reducing
the period to 3 years has been stayed by this Court, but for which, we
may assume that the period would have been further reduced.
44. The Government Orders starting from 30.12.2006 in
G.O.(Ms)No.854, Revenue Department and subsequent Government
Orders in G.O.Ms.No.498, 711, 34, 43 and 372 dated 05.09.2007,
30.11.2007, 23.01.2008, 29.01.2010 and 26.08.2014 respectively,
with particular reference to encroachments in water bodies are in clear
violation of the public trust doctrine. Moreover, Article 51-A of the
Constitution of India enjoins that it shall be the duty of every citizen of
India, inter alia, to protect and improve the national environment
including forests, lakes, rivers, wildlife and to have compassion for
living creatures. This Article is not only fundamental in the governance
of the country but a duty on the State to apply these principles in
making laws and further to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution
including Articles 14, 19 and 21 of the Constitution and also the
various laws enacted by Parliament and the State Legislatures. But
unfortunately, the State, by passing the above said Government
Orders, actively encourages encroachers of water bodies, to indulge in
illegal and unlawful activities and also bent upon regularizing their
possession which has to be deprecated.
45. In the light of the above, we answer the reference on the
following terms:-
The provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, does not in any manner dilute the observations/directions issued in L.Krishnan vs. State of Tamil Nadu reported 2005 (4) CTC 1, as quoted with the approval by the Hon'ble Supreme Court in Jagpal Singh vs. State of Punjab, reported in (2011) 11 SCC 396, and the observations contained in paragraph 20(d)(e) of the judgment of the Division Bench in T.S.Senthil Kumar, vs. Government of Tamil Nadu, reported in 2010-3-MLJ-771 and that the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the 51 provisions of the Tamil Nadu Land Encroachment Act, 1905.
46. We place on record the valuable assistance rendered by the
learned counsel appearing for the parties and learned Amicus Curiae in
assimilating facts and legal position.
The Writ Petition is directed to be posted before the Division
Bench for disposal. No costs.
30.10.2015
No comments:
Post a Comment