I.H. Sekar v. Department Of Forest And Environment, National Green Tribunal, Judgment, Law, casemine.com

M.S Nambiar, Judicial Member:— The applicant, a Social Worker and Founder and Managing Trustee of the Nature Trust which was formed with the objective of protecting the environment and various Natural Resources, filed this application under Section 14 of the National Green Tribunal Act, 2010 with a prayer to issue directions to the respondents to stop all activities in the marsh lands and canal kaiveli in areas situated in Survey No. 707 comprising 61.60 acres at Sholinganallur Village, Kancheepuram District.

2. The applicant Trust would claim that the Trust was instrumental in retrieving so many acres of Government lands in the recent past and also spearheading certain social welfare measures to promote development in the locality. According to the applicant, their native village Injambakkam and Sholinganallur Village are blessed with abundance of rich natural resources, perennial waterways like Buckingham Canal which passes through the village. Marsh lands which extend upto the village of Pallikaranai, provide abundant underground water supply besides being the abode of many birds and rich in fish culture. The Marsh lands are a boon to the village. The Marsh lands and other connected areas are spread over more than 61.60 acres. These lands and Buckingham Canal Marsh lands are comprised in Survey No. 707 as shown in the particulars furnished by the Public Information Officer, Tamil Nadu Archive, Chennai. The said Injambakkam and Sholinganallur Villages are situated on the outskirts of Chennai and fall within the limits of Chennai City Corporation. More than 60,000 people reside there. Water scarcity is prevalent in this village even though 60 small tanks exist but are mostly encroached and permanent structures were constructed over them. The Government categorised these Marsh lands as belt area. Though the applicant requested the Government to save the Marsh lands and issue proper directions not to allow any constructions in the Marsh lands, no action is taken to stop the constructions or save the Marsh lands, Canal and Odai lands. Inspite of the request made to the Member Secretary of the Chennai Rivers Restoration Trust dated 16.02.2015, no action is taken to stop the encroachments and protect the Marsh lands from further encroachments.

3. It is alleged that the Marsh lands are water saving bodies and if these Marsh lands are allowed to be encroached, Flora and Fauna which protects the Environment, would perish and the entire Marsh lands would disappear. On 09.04.2013 the Tamil Nadu Government announced in the assembly that it would protect Pallikaranai Marsh lands at a cost of Rs. 15.75 crores, during the year 2011 to 2016. The Pallikaranai Marsh lands extend upto Sholinganallur and Buckingham Canal. It is also within the knowledge of the Government that it is a sanctuary to 112 species of birds, 21 species of reptiles, 9 species of amphibians, 46 species of fishes, 7 species of butterflies and if the Marsh lands are encroached and destroyed, it would endanger the rare species of birds and other living creatures. On these allegations, the applicant sought the reliefs.

4. Respondent No. 1 is the Secretary, Department of Forest and Environment, Government of Tamil Nadu, Respondent No. 2 is the Secretary, Department of Revenue, Respondent No. 3 is the Member Secretary, Chennai Rivers Restoration Trust and Respondent No. 4 is the District Collector, Kancheepuram. Later by order dated 26.07.2016 the Tribunal impleaded the Regional Transport Officer, Meenambakkam as respondent No. 5.

5. Respondent No. 4, the District Collector, Kancheepuram filed a reply contending that the total extent of Survey No. 707 of Sholinganallur village is 24.93.0 hec. Out of this, 2.83.5 hec was sub divided as Survey No. 707/2 and transferred to Tamil Nadu Transport Department for construction of Regional Transport Office vide G.O(Ms) No. 25, Revenue Department, dated 18.01.2013 Vide G.O(Ms) No. 194, Revenue Department, dated 09.06.2014, 12.72.0 hec. was sub divided as Survey No. 707/3 and transferred to Tourism, Culture and Religious Endowments Department for the formation of Tamil Nadu Music and Fine Arts University. According to the respondent, even though the said land is classified as “Government Poramboke - Kazhuveli”, after obtaining technical opinion from PWD and permission from the Government, the lands were transferred to the Government Departments for Public Utility Service. The land in Survey No. 707/2 is described as “Kazhuveli” in village Accounts and Revenue Records. According to the respondent, “Kazhuveli” is not an Objectionable Poramboke land. The land was transferred to the Transport Department after obtaining opinion from the concerned Departments. The areas in and around Sholinganallur Taluk have been developed; considering the interest of the larger public, the Government decided to establish a Regional Transport Office at Sholinganallur Taluk. It is a policy decision of the Government taken in the larger public interest. Though the land was described as “Kazhuveli”, there is no permanent stagnation of water in the ground level. Kazhuveli is not an objectionable poramboke. Only after obtaining technical opinion from PWD, the land was transferred. The other lands situated in and around Survey No. 707 are patta lands. The land is situated 100 m away from Buckingham Canal. The land in Survey No. 707/2 is situated at the end of Kazhuveli adjacent to the patta lands. The question of stagnation of water therefore does not arise. Now the Regional Transport office is only dumping waste materials in the land in order to level the land to construct the Regional Transport office. Once the land is transferred to another Department neither the District Collector nor the Secretary to the Revenue Department has any right on the said land. Therefore, impleading the District Collector and the Secretary to Government of Revenue are unnecessary. The question of dumping of debris in the land therefore does not arise. The land was transferred to the Transport Department in the year 2013 itself. The Transport Department is only dumping building materials to level the land for construction. No municipal solid wastes were dumped in the land in Survey No. 707 as alleged. The District Collector therefore sought to delete the Secretary to Government, Revenue Department as well as the District Collector from the array of party respondents.

6. Respondent No. 5 filed a reply contending that the Government of Tamil Nadu allotted 7 acres of land classified as “Government Poramboke - Kazhuveli” in Survey No. 707/1 of Sholinganallur village by G.O(Ms) No. 25 dated 18.01.2013 Prior to the issuance of the G.O a notice was published in the local daily dated 12.06.2009 by the District Collector, inviting objections from the local public with regard to the allotment of lands for the purpose of establishing the Transport Office. No objection was filed. Subsequently, the Sholinganallur Town Panchayat by Resoultion No. 475 dated 30.07.2009 granted 7 acres of land in Survey No. 707/1 for construction of Transport Unit Office. The District Revenue Officer inspected the site on 12.09.2009 and reported that no trees or Ancient symbols or HT wires etc. are there in the area. The Minister for Industries and Transport made an announcement on the floor of the Assembly on 04.09.2015 informing Construction of Protection Wall for the vehicles detaining yard at Regional Transport Office, Sholinganallur. The Detaining Yard will also be used for the RTO Meenambakkam, Tambaram, Tiruvanmiyur and Mandaiveli. Subsequently, the Transport Commissioner informed that exclusive functioning of enforcement Wing of Chennai North and South Zone in the Transport Department needs sufficient space as it is not available in the Regional Transport Office. Therefore, it was decided to park the detained vehicles in the RTO Sholinganallur and then for Electronic Driving Test Centre and office premises etc. 7 acres in Survey No. 707/1 was therefore allotted. On the request of the Transport Commissioner Chennai, the Government sanctioned a sum of Rs. 186.46 lakhs vide G.O(Ms) No. 177 Home Department dated 15.02.2016 for construction of protection wall. Construction of Protection Wall was thus initiated. It is at this juncture, the applicant filed the application alleging that it is a Marsh land.

7. The 5th respondent further contended that the question of encroaching even a piece of Marsh land in Survey No. 707/1 of Sholinganallur village does not arise. The land was allotted after careful examination. The land is totally different from Marsh lands. It is a land where excess rain water will stagnate during the period of rainfall. The water has been stagnating in the land as it is low lying area, in comparison to the road level and as there was no proper drainage facility. In fact, only around 5 months in a year water is found in the said land during the rainy season. The said land lies 10 feet lower than the road level. It is for this reason the rain water accumulates during the rainy season in the said land. As the land was described “Kazhuveli Poramboku” permission of the State was obtained. The respondent submitted a proposal for transfer of the land. The Commissioner, Land Administration had given recommendations to transfer the land to the Transport Department. After careful examination, the proposal was accepted by the Government. The land ear-marked for the Transport Office lies on the rear end of the Kazhuveli lands, on a steep portion adjacent to the patta lands. The G.O itself clearly explained that after completion of the excavation of Buckingham Canal under JNNURM Scheme, water will be completely let into the sea and the available sand would be excavated. After 2005 floods in Chennai Urban and Semi Urban areas, the JNNURM project was taken up for alleviating the floods in the urban settlements. One of the major components of this project is widening the Buckingham Canal to double the width from 30 m. The Public Works Department is the competent authority to give technical clearance for conversion of land use susceptible for flood. The land is not a water body or a marsh land. In and around the said lands, number of Villas and apartments are constructed. As per the observations in the Government Order, the land allotted to the Industries Department vide G.O(Ms) No. 500, Revenue Department dated 01.10.2010 measuring 71.58.0 hectares in S. No. 602/7 and S. No. 534/4 for the establishment of Financial City and media entertainment park at Perumbakkam was subsequently cancelled on objection of Forest Department, as the said land is purely marsh land. But it is different from the Kazhuveli land involved in this case. Chennai Zone comprising (North and South), has 19 Regional Transport Offices. The land is allotted to the Transport Department for the following purposes. 1. Vehicle Detention Yard-for safe custody to have better enforcement work, 2. Scientific Electronic Driving Testing Track to produce quality drivers with road safety awareness and 3. To provide space for Regional Transport Office, Sholinganallur which was functioning in a private building in a congested area. It is therefore contended that the application is to be rejected.

8. The applicant filed a rejoinder contending that Buckingham Canal is attached with wetland situated at Survey No. 707, Akkarai village. It is locally known as Kazhuveli (a generic Tamil name for marsh land). The Plant Diversity Survey Report on Kazhuveli Akkarai Village in Sholiganallur Taluk of Kanchipuram District submitted by Dr. D. Narasimhan and K. Devanathan, Centre for Floristic Research, Department of Botany, Madras Christian College, Chennai was also produced. It is contended that the wetland water connected from Pallikaranai Marsh land through Okkiyum Thoraipakkam Maduvu and later connected to Buckingham canal and Wetland at Survey No. 707, Akkarai Sholinganallur Taluk. This wetland is one of the God's gift to the Human beings. The attempt of the State Government is to step into the shoes of the Hon'ble Division Bench decision dated 27.12.2015 in W.P No 1295 of 2009. By Judgement dated 26.02.2016 in W.P Nos. 3008 of 2015, 3009 of 2015, the Full Bench of High Court of Madras forbidden Regularization of encroachments in water bodies in the State. The Deputy Secretary to Revenue Department filed an affidavit therein undertaking that the State Government would scrupulously follow the Judgement of the Supreme Court and the High Court, to protect water bodies making it clear that the encroachments of water bodies is forbidden in the State of Tamil Nadu. If the damage to the Marsh land is not stopped, the entire Marsh land would disappear. It is contended that in any event the Marsh land (Kazhuveli) of Akkarai, Sholiganallur Village having an extend of 61.60 Acres in Survey No. 707 should be protected. The applicant contended that the application be disposed in terms of the order passed by the Hon'ble Full Bench of the Hon'ble High Court in W.P No. 1294 of 2009 dated 30.10.2015

9. The other respondents did not file any reply.

10. Though the applicant was originally appearing in person, later learned counsel Mr. V.B.R Menon appeared for the applicant. The applicant originally filed written argument notes dated 03.01.2017 Thereafter, additional written submissions dated 15.03.2017 was filed as a subsequent clarification to the earlier submissions. Thereafter, the applicant filed the written submissions dated 15.04.2017 and finally another written arguments filed dated 30.05.2017

11. Learned counsel appearing for the respondents filed written submissions by way of an affidavit and thereafter respondent No. 4 filed one more affidavit as part of arguments.

12. Though the stand taken by the applicant in the original application and the pleading was that the disputed land in the application in Survey No. 707 comprising 61.60 acres at Sholinganallur Village in Kanchipuram District forms part of the Pallikaranai marsh, the stand taken in the subsequent written submissions and the argument is that the disputed land does not form part of Pallikaranai marsh. The submission in the final written submission dated 15.04.2017 is that, “the applicant has never contended that the said lands form part of Pallikaranai marsh lands which are under the control of the Forest Department.” True, the stand taken therein is that in addition to the Pallikaranai marsh lands which are under the control of Forest Department, there are additional marsh lands to be protected which include the disputed land in Survey No. 707. The argument of the learned counsel Mr. Menon appearing for the applicant is that Survey No. 707 is a backwater or marsh land or wetland and the Hon'ble Supreme Court and the Hon'ble High Court of Madras in various decisions declared the necessity to protect the water bodies, marsh lands and wet lands and those principles squarely apply to the disputed land in Survey No. 707 and therefore respondents cannot be allowed to put up any construction and thereby destroy their status as water body/backwater/marsh land/wetland. The applicant is relying on the entry made in the “A” Register in respect of Survey No. 707 where it is recorded in English as ‘Back water’ and in Tamil ‘Kazhuveli’. The submission is that it is a water body/marsh land/wetland to be protected. Learned counsel argued that in W.P No. 40571 of 2015 the Hon'ble High Court of Madras in its Judgment dated 22.12.2015 already directed that there shall be no reclassification of the land whereby the wetlands and lake areas may be converted into house sites. In W.M.P No. 37161 of 2016 in W.P No. 12125 of 2013 by order dated 15.12.2016 the Hon'ble High Court recorded that the learned counsel for the respondents says that there is a blanket stay order in respect of marsh land and thus there is no question of issuance of pattas in respect thereof and hence marsh lands cannot be transferred by the State for construction of any building and therefore alienation of any part of land in Survey No. 707 to the Transport Department is illegal. In any case, the Transport Department is not entitled to make any construction in the land or cause any damage to the water body/marsh land/wetland. Learned counsel also argued that in W.P No. 30951 of 2016 by order dated 06.09.2016 the Hon'ble High Court of Madras held that what is classified as water area cannot now be converted for any other use and that approach would also equally have to be applied keeping in mind the problem of conversion of wetland areas for urbanization. Learned counsel also argued that the definition of Wetlands in the Wetlands (Conservation and Management) Rules, 2010 proves that Wetlands include back water also and as the revenue records prove that Survey No. 707 is a back water, it is a wetland which is to be protected. Learned counsel also argued that as per the definition in Wikipedia, the Back water is a body of water that was created by flood or tide or by being held or forced back by a dam or a body of stagnant water connected to a river on the marsh land that is dominated by herbaceous rather than woody plant species. It is argued that the photographs of the land made available establish that it is a marsh land and as the marsh land is to be protected for a clean environment, the respondents cannot be permitted to make any construction therein. Learned counsel also submitted that though the document by which the land was transferred to the Transport Department as well as the document by which another portion of the land was transferred to the Tourism and Culture Department, were not specifically challenged in the application, to protect the entire marsh lands on the side of Buckingham Canal, Writ Petition No. 10821 of 2017, being a Public Interest Litigation, is filed before the Hon'ble High Court of Madras and as the disputed land is a marsh land, the respondents have to be prevented from making constructions or filling up the lands. Learned counsel also argued that respondent No. 4 submitted in the reply that the disputed land is lying 10 metres lower in level and is completely filled up with water during the rainy season for 4 to 5 months and that itself establishes that it is a water body or marsh land or wetland. Learned counsel also argued that in such circumstances respondents cannot contend that it is not a marsh land or wet land. It is also submitted that the applicant has submitted a report prepared by Dr. Narasimhan and K. Devanathan of Centre for Floristic Research Department of Botany, Madras Christian College, Chennai and the report shows that the disputed land is a marsh land.

13. Learned counsel appearing for the State Mr. Manoharan argued that Pallikaranai marsh is far away from the disputed land as is clear from the Google Map made available by the applicant himself. It is also argued that the disputed land does not form part of Pallikaranai marsh land at all. It lies away from the Buckingham Canal and is far away from Pallikaranai marsh lands. Learned counsel submitted that the disputed land is neither a water body nor a marsh land nor a back water and therefore, based on the decisions in respect of water bodies or marsh lands, the applicant cannot contend that the Transport Department is not competent to make constructions in the land allotted to the Department by the Government. Learned counsel also argued that even if the disputed land is a wetland, unless it is notified as wetland under the Wetlands (Conservation and Management) Rules, 2010 protection provided therein is not applicable and the applicant cannot contend that no construction can be made in the wetland, which is not notified under the Wetlands (Conservation and Management) Rules, 2010. The argument is that the land is classified in the revenue records as ‘Poramboke Kazhuveli’ and it is an unobjectionable and assignable land. It is argued that the term wetland and classification Kazhuveli is generically used by the Departments of Revenue and Forests and they denote the same type of land. Though all marsh lands, swamps, water bodies and back water are wet lands, all wetlands are not automatically marsh/back water or water bodies. It is also argued that all marsh lands are under the control of Forest Department and wetlands are under the control of Revenue Department. It is also argued that the wetlands are of two categories, one objectionable wetlands and the other unobjectionable wetlands. The unobjectionable wetlands could be assigned by the Government and the objectionable wetlands cannot be assigned. The argument is that the disputed land is a Government Poramboke wetland which is assignable and are unobjectionable wetlands and therefore, the Government is competent to transfer the land and the Transport Department is competent to make construction also. Learned counsel also argued that though the land was shown as back water when the land is not connected to the river or sea, it will not satisfy the concept of back water and instead it could only be a wetland. Learned counsel therefore argued that the applicant is not entitled to any relief sought for in the application.

14. The point arises for consideration:

Whether the disputed land in Survey No. 707 of Sholinganallur Village having an extent of 61.60 acres is a water body or a back water or a marsh land or a wetland and if so, whether respondent No. 5 is entitled to make any construction in any portion of the land and whether the disputed land is to be protected from putting up any construction as sought for by the applicant?

15. Though the application is for protection of 61.60 acres in Survey No. 707 of Sholinganallur Village, claiming that it is a marsh land and canal kazhuveli, the submission during the arguments was with regard to the 7 acres of land transferred by the Government to respondent No. 5 for construction of the unit office of the Transport Department. As is clear from G.O(Ms). No. 25 Revenue Department, dated 18.01.2013, based on application submitted by the Regional Transport Officer, Meenambakkam to the District Collector, Kanchipuram for transfer of 7 acres of land in Survey No. 707 to Transport Department for the construction of unit office, Sholinganallur, the Principal Secretary and Commissioner of Land Administration, Chennai justified the need for 1 acre for unit office building, 4 acres for the Electronic Driving Test base and 2 acres to keep the confiscated vehicles. On inspection the District Revenue Officer, Kanchipuram reported that there were no trees, ancient symbols, costly buildings, high power tension and low power tension lines. It was also reported that the proposed land is 10 feet lower than the road level and water will be stagnated for 4 to 5 months during rainy season. The proposed land is situated on the rear end of Kazhuveli on a steep portion, adjacent to patta lands. The present land level is between (+) 1.940 metre to (+) 2.230 metre and during heavy rain, the highest level of water passing through the Buckingham Canal is (+) 2.400 metre. It is therefore necessary to raise up upto (+) 3.000 metre when the work under Jawaharlal Nehru Urban Renewal Mission (JNURM) to lay channel to release rain water through Buckingham Canal direct to sea is taken up, the excavated sand would be available which could be used for the proposed lands. The proposed land is Kazhuveli Poramboke and has to be transferred to Government Departments for public utility and therefore permission of the Government is necessary. The District Collector, Kanchipuram recommended for transfer of the lands and accordingly by G.O(Ms). No. 25, the Principal Secretary and Commissioner of Land Administration, Chennai recommended the proposal of the District Collector for transfer. Thus under the G.O(Ms). No. 25, 7 acres of land out of total extent of 24.93.0 hectare classified as “Government Poramboke-Kazhuveli” in Survey No. 707/1 of Sholinganallur Village, was transferred in favour of Transport Department on the conditions enumerated therein. Along with the application the applicant has filed a copy of the G.O(Ms). No. 25. The application was filed on 05.08.2015 The reply filed by respondent No. 4 reveals that it was by sub dividing Survey No. 707/1, Survey No. 707/2 the said land was transferred. By G.O(Ms.) No. 194, Revenue Department, dated 09.06.2014, 12.72.0 Hec. was subdivided as Survey No. 707/3 and transferred to Tourism, Culture and Religious Endowments Department for the formation of Tamil Nadu Music and Fine Arts University. But the applicant has not disclosed anything in the application with respect to the said transfer of the lands, so also there was no prayer in the application to quash the transfers either in favour of the Transport Department or the Tourism, Culture and Religious Endowments Department. It was much after the arguments of the applicant were heard, the applicant filed W.P(PIL) No. 10821 of 2017 seeking a prayer to protect the total extent of Backwater lands which are lying on both sides of Buckingham Canal with pressing specific prayer to quash the transfers in favour of the Transport Department and the Tourism, Culture and Religious Endowments Department. Though the learned counsel appearing for the applicant argued that the disputed land in Survey No. 707 is a water body, marsh land, backwater and wet land, each of these categories are distinct and different. The protection available to each category of lands are different.

16. The Judgement of the Hon'ble Supreme Court in M.C Mehta v. Kamal Nath ((1997) 1 SCC 388) analyzed the doctrine of Public Trust as follows:

“our legal system-based on English common law-includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be convened into private ownership.”

17. Their Lordships held

“the Public Trust Doctrine under the English common law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests”.

18. It was further held

“the observations of the Court in Mono Lake case to the effect that the protection of ecological values is among the purpose of public trust, may give rise to an argument that the ecology and the environment protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum Co. v. Mississippi the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying non-navigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources.”

19. It was then held

“in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.”

20. The Judgement of the Hon'ble Supreme Court in Association for Environment Protection v. State of Kerala ((2013) 7 SCC 226) holding that Article 48-A was inserted in Part IV of the Constitution and the State was burdened with the responsibility of making an endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. By the same amendment, Fundamental Duties of the citizens were enumerated in the form of Article 51-A (part-IV A). These include duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. Taking note of the fact that the Courts in different jurisdictions have, time and again, invoked the public trust doctrine for giving judicial protection to environment, ecology and natural resources, the Hon'ble Supreme Court recognized the importance of the public trust doctrine and applied the same in several cases for protecting natural resources which have been treated as public properties and are held by the Government as trustee of the people.

21. In M.I Builders Pvt. Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464, the Hon'ble Supreme Court applied public trust doctrine for upholding the order of Allahabad High Court which had quashed the decision of Lucknow Nagar Mahapalika permitting the Builders Pvt. Ltd. to construct an underground shopping complex in Jhandewala Park, Aminabad Market, Lucknow. When the order was assailed before the Hon'ble Supreme Court, the Court invoked the public trust doctrine and held that being a trustee of the park on behalf of the public, the Nagar Mahapalika could not have transferred the same to the private builder and thereby deprived the residents of the area of the quality of life to which they were entitled under the Constitution and Municipal Laws.

22. The Observation therein reads

“This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a nugatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special more demanding obligation which it may have as a trustee of certain public resources.”

23. In Fomento Resorts and Hotels Ltd. v. Minguel Martins ((2009) 3 SCC 571), the Hon'ble Supreme Court held

“The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets.”

24. Their Lordships further held

“Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.”

25. Thus a water body which has to be used by the generations can never be allowed to be obliterated even by the State, who holds the same in public trust and the State has no right to destroy or to jeoparadise the same.

26. The Full Bench of the High Court of Madras in T.K Shanmugam, Secretary, C.P.I(M) v. The State of Tamil Nadu (2015 (5) L.W 397) followed the principles and based on the public trust doctrine held that the Division Bench in L. Krishnan v. State of Tamil Nadu (2005 (4) CTC 1), did not limit its direction to water bodies under the control of the Public Works Department. In fact, it has issued directions applicable 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. That decision was approved by the Hon'ble Supreme Court in Jagpal Singh v. State of Punjab ((2011) 11 SCC 396).

27. Therefore, if the disputed land is a water body definitely, it is to be protected from any construction whereby the nature of the water body would be destroyed adversely affecting the ecology.

28. The position of marsh land, back water and wetland stands on a different footing. The wetlands undoubtedly play a vital role in the hydrological cycle on account of their wide ranging ecosystem services like water supply and purification, waste assimilation, buffering extreme events of floods, droughts, storms and cyclones, ground water recharge, erosion control, micro-climatic regulation etc. They play a significant role by harboring wide range of floral and faunal diversity including rare endangered and endemic species and also support complex food chains and help to mitigate and adopt to changing climate because of their ability to act as carbon sinks, regulate water regimes, prevent erosion and provide habitat to bio-diversity under stress. It is for these reasons, the Government of India, in exercise of the powers conferred under Section 25, read with sub-section (1) and clause (v) of sub-section (2) and sub-section (3) of Section 3 of the Environment (Protection) Act 1986, notified the Wetlands (Conservation and Management) Rules 2010 (in short 2010 Rules).

29. Under Rule 2(g) “Wetland” has been defined as follows:

““wetland” means an area or of marsh, fen, peatland or water; natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt including areas of marine water, the depth or which at low tide does not exceed six meters and includes all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks, estuaries and manmade wetland and the zone of direct influence on wetlands that is to say the drainage area or catchment region of the wetlands as determined by the authority but does not include main river channels, paddy fields and the coastal wetland covered under the notification of the Government of India in the Ministry of Environment and Forest, S.O number 114 (E) dated the 19 February, 1991 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii) of dated the 20 February, 1991.”

30. As is clear from the definition an area of marsh or water either natural or temporary, would definitely be a wetland as defined under Rule 2(g) of 2010 Rules. Therefore, the protection available to a marsh land or back water or wetland is the protection available to the wetland as defined under Rule 2(g) of 2010 Rules.

31. Rule 3 deals with the protected wetlands, which read as follows:

“Based on the significance of the functions performed by the wetlands for overall well being of the people and for determining the extent and level of regulation, the following wetlands shall be regulated under these rules, namely:—

(i) Wetlands categorized as Ramsar Wetlands of International Importance under the Ramsar Convention as specified in the Schedule.

(ii) Wetlands in areas that are ecologically sensitive and “important, such as, national parks, marine parks, sanctuaries, reserved forests, wildlife habitats, mangroves, corals, coral reefs, areas of outstanding natural beauty or historical or heritage areas and the areas rich in genetic diversity;

(iii) Wetlands recognized as or lying within a UNESCO World Heritage Site;

(iv) High altitude wetlands or high altitude wetland complexes at or above an elevation of two thousand five hundred metres with an area equal to or greater than five hectares;

(v) Wetlands or wetland complexes below an elevation of two thousand five hundred metres with an area equal to or greater than five hundred hectares.

(vi) Any other wetland as so indentified by the Authority and thereafter notified by the Central Government under the provisions of the Act for the purposes of these rules.”

32. The wetlands categorized as Ramsar Wetlands of International Importance under the Ramsar Convention is shown in the Schedule to 2010 Rules. It is clear that within the State of Tamil Nadu the only wetland identified as Ramsar sites is “Point Calimere Wildlife and Bird Sanctuary”.

33. Rule 4 deals with the restrictions on activities within wetlands, which reads as follows:

“(1) The following activities within the wetlands shall be prohibited namely:—

(i) reclamation of wetlands;

(ii) setting up of new industries and expansion of existing industries.

(iii) manufacture or handling or storage or disposal of hazardous substances covered under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 notified vide S.O number 966(E) dated the 27 November, 1989 or the Rules for manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms/Genetically engineered organisms or cells notified vide GSR number 1037(E) dated the 5 December, 1989 or the Hazardous Wastes (Management, Handling and Transboundry Movement) Rules, 2008 notified vide S.O number 2265 (E), dated the 24 September, 2008;

(iv) solid waste dumping: provided that the existing practices, if any, existed before the commencement of these rules shall be phased out within a period not exceeding six months from the date of commencement of these rules;

(v) discharge of untreated waste and effluents from industries, cities or towns and other human settlements: provided that the practices, if any, existed before the commencement of these rules shall be phased out within a period not exceeding one year from the date of commencement of these rules;

(vi) any construction of a permanent nature except for boat jetties within fifty metres from the mean high flood level observed in the past ten years calculated from the date of commencement of these rules.

(vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specific in writing by the Authority constituted in accordance with these rules.”

34. Certain activities though prohibited, could be undertaken with the prior approval of the State Government within the wetlands as provided under sub-rule (2).

35. The Sub-rule (2) reads as follows:

“(2) The following activities shall not be undertaken without the prior approval of the State Government within the wetlands, namely:—

(i) Withdrawal of water or the impoundment, diversion or interruption of water sources within the local catchment area of the wetland ecosystem;

(ii) Harvesting of living and non-living resources;

(iii) Grazing to the level that the basic nature and character of the biotic community is not adversely affected;

(iv) Treated effluent discharges from industries, cities or towns, human settlements and agricultural fields falling within the limits laid down by the Central Pollution Control Board or the State Pollution Control Committee, as the case may be;

(v) Plying of motorized boat, if it is not detrimental to the nature and character of the biotic community;

(vi) Dredging, only if the wetland is impacted by siltation;

(vii) Construction of boat jetties;

(viii) Activities within the zone of influence, as per the definition of wetlands, that may directly affect the ecological character of the wetland;

(ix) Facilities required for temporary use, such as pontoon bridges, that do not affect the ecological character of the wetland.

(x) Aquaculture, agriculture and horticulture activities within the wetland;

(xi) Repair of existing buildings or infrastructure including reconstruction activities;

(xii) Any other activity to be identified by the Authority.”

36. Sub-Rule (3) of Rule 4 provides that notwithstanding anything in sub-rule (1) or sub-rule (2) of Rule 4, the Central Government may permit any of the prohibited activities or nonwetland use in the protected wetland on the recommendation of the Authority. The authority as defined under rule 2(b) means the Central Wetlands Regulatory Authority constituted under Rule 5. Rule 6 provides the process for identification of wetlands under different categories of wetlands covered under item (i) of Rule 3 specified under Schedule to be regulated under the Rules. But it is to be borne in mind that the protection under 2010 Rules is only to those wetlands which are notified under the said Rules.

37. The Judgment of the Hon'ble Supreme Court in Vardha Enterprises Private Limited v. Rajendra Kumar Razdan ((2015) 15 SCC 352) settled the position as follows:

“On the examination of the scheme of the rules, we are of the opinion that the applicant is right in his first two submissions. First of all, the area where the applicant's construction is going on has not yet been legally notified as a wetland under the Rules. In the absence of any legal embargo as on today, the applicant's right to carry on the construction according to the existing law and various permissions granted under it cannot be frustrated by executive action in anticipation of some embargo which is likely to be created in future.”

38. Learned counsel appearing for the applicant submitted that the Hon'ble Supreme Court in M.K Balakrishnan v. Union of India (W.P (Civil) No. 230 of 2001 by order dated 8 February, 2017) held that the prohibition of activities provided under rule 4 of the 2010 Rules, are applicable to all the wetlands and therefore even if the disputed land is not a part of a notified wetland, the restrictions provided under Rule 4 is applicable to the disputed wetlands also and therefore, the land is to be protected.

39. With the intention of superseding 2010 Rules, the Central Government by Notification dated 31st March 2016 published the draft rules inviting objections from the public. The Hon'ble Supreme Court, taking note of the submission that as many as 175 comments were received and for the examination of these comments a committee has been constituted by the Union of India, to submit its report and the submissions on behalf of the Union of India was that the period need to be extended. Therefore, the Hon'ble Supreme Court directed the Central Government to notify the Wetlands (Conservation and Management) Rules, 2016 on or before 30 June 2017. The order makes it clear that such a direction was issued as the matter was pending with the Government of India for more than a year, finding that there should be a finality to the publication of the rules. When the attention of the Hon'ble Supreme Court was drawn to the Information Brochure “National Wetland Inventory and Assessment” which indicates that 2,01,503 wetlands have been mapped at 1:50,000 scale and all the wetlands have an area of more than 2.25 hectares and it is necessary to obtain ‘Brief documents’ with regard to these 2,01,503 wetlands by the Union of India from the respective State Governments in terms of Rule 6 of the 2010 Rules, an apprehension was expressed before the Hon'ble Supreme Court that there is a possibility for some of the wetlands disappearing by the time the Rules are notified. Hence finding that the apprehension is not unfounded, Hon'ble Supreme Court passed the following directions:

“Accordingly, we direct the application of the principles of Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 to these 2,01,503 wetlands that have been mapped by the Union of India. The Union of India will identify and inventorize all these 2,01,503 wetlands with the assistance of the State Governments and will also communicate our order to the State Governments which will also bind the State Governments to the effect that these identified 2,01,503 wetlands are subject to the principles of Rule 4 of the Wetlands (Conservation and Management) Rules, 2010, that is to say:

(i) reclamation of wetlands;

(ii) setting up of new industries and expansion of existing industries.

(vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specific in writing by the Authority constituted in accordance with these rules.”

40. Therefore, it is true that even if the disputed land is not a notified wetland under 2010 Rules, if it is one among the 2,01,503 wetlands covered by the order of the Hon'ble Supreme Court in W.P(C) No. 230 of 2001 dated 8 February, 2017, the protection provided under 2010 Rules should be available to the disputed land also. But there is absolutely no material before us to find whether the disputed lands are among the 2,01,503 wetlands subjected to the preservation/protection provided by the decision of the Hon'ble Supreme Court dated 08.02.2017 We make it clear that if the disputed lands are part of the wetlands out of the 2,01,503 wetlands covered by the decision of the Hon'ble Supreme Court, respondent No. 5 or the other respondents are not entitled to put up any construction in violation of the provisions provided under Rule 4 of the 2010 Rules.

41. Though the learned counsel appearing for the applicant vehemently argued that no construction or reclamation of marsh lands and the wetlands are permissible because of the decisions of the Hon'ble High Court of Madras, on the materials furnished, we cannot agree. The argument of Mr. Menon, the learned counsel appearing for the applicant was mainly based on the Full Bench decision of the Hon'ble High Court of Madras in T.K Shanmugam, Secretary, C.P.I(M) v. The State of Tamil Nadu (2015 (5) L.W.397). The Full Bench in that case was considering the question whether the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (in short ‘Tank Act’) does in any manner dilute the observations/directions made in L. Krishnan v. State of Tamil Nadu (2008 (4) L.W 415) or any other judgments of the Hon'ble Supreme Court, requiring protection of Water Bodies, which was referred to the Full Bench by the Division Bench. The Public Interest Litigation in L. Krishnan's case (supra) was filed seeking a direction against the Government and Revenue Officials to remove encroachments made by private parties in a Odai Poramboke in Villupuram District. The Division Bench pointed out that ponds, tanks, and lakes have been essential part of the people's natural resources, but in recent years, they were illegally encroached upon by unscrupulous persons causing adverse effect on the lives of the people. Taking note of the water scarcity prevailing in the State of Tamil Nadu, it was found by the Division Bench that water storage tanks, ponds and lakes as disclosed in the revenue records are to be restored to their original status, as part of its rainwater harvesting scheme. After referring to the decision of the Hon'ble Supreme Court in Hinch Lal Tiwari v. Kamal Devi ((2001) 6 SCC 496, the Division Bench found that the endeavour of the State should be to protect the natural 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 the essence of the right guaranteed under Article 21 of the Constitution. After referring the various decisions of the Hon'ble Supreme Court, the Division Bench issued certain directions firstly, a positive direction to remove the encroachments over odai poramboke, which was complained of in the said Public Interest Litigation. Secondly a direction was issued 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. After the decision, 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 of management of Public Works Department, protection of such tanks and for matters incidental thereto. But as is clear from the said Act the Government intended to restrict the applicability of law to the tanks which are under the control and management of the Public Works Department. Challenging Sections 4 to 10 of the Tank Act with a prayer to declare those provisions 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, the writ petition was filed which was heard by the Division Bench.

42. The Full Bench relying on the decision of the Hon'ble Supreme Court in Jagpal Singh (supra) case, wherein the decision in L. Krishan's case (supra) was approved and a direction was issued to all State Governments in the country to prepare schemes for eviction of illegal/unauthorized occupants of the grama sabha/grama panchayat/poramboke/shamlat land and to restore them for the common use of the villagers of village. The Full Bench held that L. Krishnan's case (supra) did not limit its direction to water bodies under the control of the Public Works Department and in fact, it has issued directions for all natural water resources in different parts of the State of Tamil Nadu and wherever illegal encroachments are found, to take steps for removal of the encroachments. Based on the Public Trust Doctrine which 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, it was held that 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 be held illegal, the underlying fundamental principle being that such rights are public rights which are in a higher pedestal than private rights.

43. Finding that the encroachments in water bodies are in clear violation of the public trust doctrine, the Full Bench held that “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 natural 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 the Parliament and the State Legislatures.” The Full Bench therefore, answered the reference holding that the provisions of the Tank Act does not in any manner dilute the observations/directions issued in L. Krishnan's case (supra), as quoted with approval by the Hon'ble Supreme Court in Jagpal Singh (supra) case.

44. The Full Bench also approved the decision of the Division Bench in T.S Senthil Kumar v. Government of Tamil Nadu (2010 (3) MLJ 771) 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 provisions of the Tamil Nadu Land Encroachment Act, 1905. But the said decisions cannot be applied to the wetland or marsh land, as claimed by the learned counsel appearing for the applicant. So also, the decision of the Hon'ble Supreme Court in Jagpal Singh (supra) case also cannot be made applicable to the wetlands or marsh lands. They apply to only water bodies.

45. Learned counsel appearing for the applicant also argued that the Hon'ble High Court of Madras has applied the principles to marsh land and wetland and reliance was placed on the orders passed in W.P No. 12125 of 2013 to support the submissions, the argument of the learned counsel appearing for the applicant is that the dispute in W.P No. 12125 of 2013 is with regard to 69 acres of land comprised in survey Nos. 282/1, 282/2 and 282/3 classified as Kazhuveli and Grazing grounds and the classification of the land as Kazhuveli is similar classification of the disputed lands and both the lands are lying on either side of Buckingham Canal and therefore, the orders passed in W.P No. 12125 of 2013 shall also apply to the disputed land.

46. Mr. E. Manoharan, the learned Government Pleader appearing for the State disputed the submission and argued that the Hon'ble High Court had found that the said lands are not marsh lands and a survey was directed to be taken by Indian Institute of Technology (IIT), Chennai and therefore the decision is not also helpful to the applicant.

47. Learned counsel appearing for the applicant is relying on the order dated 15.12.2016 in W.M.P No. 37161 of 2016 in W.P No. 12125 of 2013. The order reads as follows:

“The learned counsel for the respondents states that there is a blanket stay order in respect of marsh land and thus, there is no question of issuance of pattas in respect thereof.”

48. The order passed by the same Bench on 09.04.2015 shows that the area is stated to be more than 156 acres and despite the request made to the Tasildhar/2nd respondent, the factum of encroachments periodically taking place is acknowledged. It is, however, stated that the land located in Survey Nos. 283, 284, 285 are not Marsh Lands, but Dry Land, Cart Track, Kazhuveli, grazing ground and Buckingham Canal and the boundaries cannot be identified. The applicant contended before the Hon'ble High Court that the details obtained under Right to Information Act (RTI Act) reveals that ‘A’ Register has been tampered unauthorisedly and thus, what is marsh land, has been altered to grazing land. The Hon'ble High Court therefore issued a direction to conduct an enquiry in respect of the ‘A’ Register alteration to confirm the validity and authenticity of the alteration and in case of alteration to take action and since the eviction of unauthorized occupants is stated to be a periodic exercise, a fresh exercise be undertaken and a status report be filed within two months quo the aforesaid with a proper site plan and photographs of the area.

49. The applicant is also relying on the order of another Division Bench in W.P No. 40571 of 2015 dated 22.12.2015 As is clear from the order, representation was submitted before the District Collector, Kancheepuram alleging granting of pattas in respect of the lake area. It was reported before the Hon'ble High Court by the Tahsildhar that no patta has been issued in any of the wetlands. The Hon'ble High Court therefore found that the relief prayed for by the applicant has become infructuous. However, the Tahsildhar was directed to look into the issue whether without issuing of any patta in violation of the norms, any construction is being made and ensure that there is no re-classification of the lands whereby the wetlands and the lake areas are converted into house sites.

50. Mr. Manoharan, learned Government Pleader submitted that subsequent to the order dated 09.04.2015, whereby an enquiry was directed to be conducted, a compliance report was filed by the District Collector, Kancheepuram before the Hon'ble High Court that a field inspection was done by the District Revenue Officer along with Director of Animal Husbandry Department and the Tahsildar, Sholinganallur inspected the site situated in Survey Nos. 281, 282, 283, 284 and 285 measuring nearly 156 acres of Injambakkam village and prepared a field inspection report along with photographs produced before the Hon'ble High Court. The District Collector has undertaken that necessary steps will be taken to remove encroachers and to verify the alteration in the classifications in ‘A’ Register. It is also pointed out by the Government Pleader that another affidavit was filed by the Secretary to Government, Revenue Department before the Hon'ble High Court dated 25.11.2015, that on verification it is found that there is no tampering of records. The relevant portion of the affidavit of the Secretary to Government, Revenue Department reads as follows:

“It is further submitted that, clarification from the District Forest Officer, Kancheepuram were also sought whether the above land comprised in S. No. 281, 282/2 and 282/3 come under the category of marsh land. The District Forest Officer, Kancheepuram reported that the said lands are not allotted to Forest as Marsh Land which clearly reveals that the said lands are Kazhuveli and Meikkal lands only and there is no tampering of records as alleged by the petitioner.”

51. It was also pointed out that the order dated 27.11.2015 of the Division Bench shows that the affidavit of the Secretary to Government, Revenue Department was perused by the Bench and the conclusion is that though there is mis-description at the stage of preparation of the manuscript Register, it is attributable to a clerical error and not tampering of records. The result is, there are no Marsh lands, but the lands are classified as Meikkal Poramboke lands, which are to be used for grazing purposes. It is also recorded that the District Collector has to take a final decision whether the encroachment is objectionable or not and to that query from the Bench whether the grazing land is to be used only for grazing purposes, it was submitted that the Government order in respect of the grazing land is required. Therefore the Secretary to Government, Revenue Department was directed to file the Government order. By order dated 08.01.2016 the Division Bench directed to file status report of compliance. The order dated 20.10.2016 shows that the stand of the State Government was that no unobjectionable poramboke land is available in Sholinganallur Taluk and thus in terms of G.O.Ms No. 186, dated 11.12.2001, the Revenue Divisional Officer has to identify the Government land in the villages coming under their jurisdiction and send necessary proposal for conversion of the same to grazing ground poramboke, and pursuant to the instructions, the Revenue Divisional Officer, Chengalpattu, by letter dated 07.10.2016, reported that an extent of 6.48.0 Hectares of land classified as Government Assessed Dry Waste Land is available and a joint inspection is to be made and the proposal would be forwarded to the Government. Though it was submitted by the learned counsel appearing for the private respondents that there is already a developed colony in the area with roads being named and the very objective of the land being a grazing ground is defeated, as it cannot be converted to its original purpose, the Hon'ble High Court held that it is for the State Government to see as to how to meet the situation, since the order is of the Government, land is of the Government and the Government has permitted rampant encroachments.

52. The District Collector, Kancheepuram filed an affidavit before the Hob'ble High Court dated 17.10.2015 that the lands classified as Government Assessed Dry Waste Land is available in Pandur village in Chengalpattu Taluk and necessary proposal be sent to the Government soon. By order dated 15.12.2016 the Hon'ble High Court directed the plan of the area be filed indicating the nature of the classification of the land in respect of different parts of Survey No. 285 and as to what is existing on those sites. By order dated 15.12.2016 the Hon'ble High Court recorded the statement of the learned counsel appearing for the respondents that there is a blanket stay order in respect of marsh land. On 30.01.2017 the following order was passed:—

“In view of what is set out in the application, we are of the view that the court should also be assisted by a survey report to be submitted by the Indian Institute of Technology, Chennai in respect of the land in Survey Nos. 282/1, 2, and 3 of total extend of 165 Acres situated in Injambakkam Village, Sholinganallur Taluk, Kancheepuram District. The expenses will be borne by the State Government. The copy of this order be communicated to the Indian Institute of Technology, Chennai.”

53. The issue whether pattas can be issued or not by the State Government would naturally depend on the survey and thus, in the mean time, no pattas will be issued.

54. Learned counsel appearing for the State relied on the following order of the Hon'ble Division Bench dated 09.04.2015:—

“Today, when this writ petition is taken up, an additional affidavit has been filed by the 36 respondent on behalf of the respondents 36 to 38, in which it is stated that there is no tampering of records as alleged by the petitioner and that the District Forest Officer, Kancheepuram has reported that the lands in S.F Nos. 281, 282/1, 2 and 3 are not marsh lands. It is also stated that as per the preliminary enquiry done by the Tahsildar, Sholinganallur, it is found that there are no encroachments in the lands in S.F Nos. 283, 284 and 285. It is further stated in the additional affidavit that the Director of Indian Institute of Technology, Madras has been requested by a letter dated 24.02.2017 to depute an expert in cad astral survey to prepare a survey report to comply with the orders passed by this Court and at least a time of one month is required to complete this survey. Further, it is stated that the original proposal dated 12.09.2016 sent by the District Collector, Mancheepuram for assignment of house site pattas in these lands, has been returned calling for further particulars about the period and nature of encroachments and details of encroachers. Further, detailed enquiry has to be conducted to determine the eligibility of encroachers for house site patta. But since this Court has now ordered for not issuing pattas till receipt of survey report of Indian Institute of Technology, Madras, the detailed enquiry as stated will continue simultaneously along with survey work. Further, it is also stated that they have planned to use historical satellite imagery of the area in addition to local enquiry and field inspection, to determine the age profile of encroached structures so that an objective and scientific assessment of age of encroached structures can be made, to corroborate the documentary evidence submitted by the encroachers to prove their period of occupation.

It is also stated in the additional affidavit that the Government will consider the regularization/eviction depending upon the eligibility of the encroachers after completing the above mentioned survey work by the Indian Institute of Technology and the enquiry, to determine the eligibility.

Reiterating the submissions made in the counter affidavit, Mr. C. Manishankar, Additional Advocate, assisted by Mr. M.K Subramanian, Government Pleader, representing the respondents 1 and 2, have submitted that a minimum time of one year is required to complete the above exercise in a proper manner.

The above submissions made in the additional affidavit filed by the 36 respondent on behalf of the respondents 36 to 38, are placed on record and a time of one year is granted to carry out the above exercise. It is made clear that while carrying out the said exercise, the authorities shall take note of all the averments made by the petitioner in this petition.”

55. It is thus clear that the stand taken by the learned counsel appearing for the respondents is that the lands in Survey No. 282/1, 282/2 and 283/3 are not marsh lands and it is the same stand taken in W.P No. 12125 of 2013 which fact was asserted before the Division Bench. That fact was also recorded in the orders. As the survey was directed to be conducted by IIT Chennai, and a period of one year was granted, the final orders are yet to be passed. Therefore there is no specific findings by the Hon'ble High Court on whether they are marsh lands or wetlands. It is also true that even after quoting the contention of the State that those lands are not marsh lands, the Hon'ble High Court did not find that the contention is not correct and they are in fact marsh lands.

56. Learned counsel appearing for the applicant relied on GO.Ms No. 147 dated 12.05.2014 wherein the earlier GO.Ms No. 500 dated 01.10.2013 whereunder a total extent of 71.58.0 hectare of lands in Survey Nos. 602/7 and 534/4 of Sholinganallur and Perumbakkam Villages in Tambaram Taluk, Kancheepuram District were transferred to Industries Department for setting up of Financial City and Media Entertainment Park, were transferred to the Forest Department being part of Pallikaranai Marsh Land. The argument is that the said lands are similar to the disputed lands and therefore the impugned transfer of the land to the Transport Department is also vitiated and therefore any construction thereon is to be prohibited. As is clear from the said G.O the said decision for cancellation of the earlier G.O transferring the lands for constructing the Financial City, was based on the decision taken in a review meeting convened under the Chairmanship of the Chief Secretary to review the eco-restoration works in the Pallikaranai Marsh Land. The decision was

“The portion of the Pallikaranai Marsh Land (about 72 ha.) situated along with southern side of Medavakkam-Sholinganallur road earmarked for establishment of Financial City needs to be handed over to the Forest Department as this area is a water body supporting lot of Avian population.”

57. Therefore, it is clear that the said land is a part of Pallikaranai Marsh and it is a water body supporting a lot of Avian population. When admittedly the disputed land is not a part of Pallikaranai marsh and there is no material to show that the disputed lands support any Avian population and as it is not a water body, the disputed lands cannot claim equal protection or status of the lands covered under GO.Ms No. 500 Revenue dated 01.10.2010 or GO.Ms No. 147 Revenue dated 12.05.2014 Though applicant has relied on a report prepared by Dr. Narasimhan and Devanathan of Madras Christian College, Chennai, as is clear from the said report, applicant procured the report subsequent to the filing of the application, behind the back of the respondents without the aid of the court. Hence, the said report cannot be relied on for resolving the disputes involved in this application.

58. Learned counsel appearing for the applicant heavily relied on the entry in the revenue records. True the entry in the ‘A’ register shows in the remarks column of the disputed land in English “Back Water” and in Tamil “Kazhuveli”. The argument of the learned counsel appearing for the applicant is that even the people of Tamil Nadu does not properly understand what is ‘Kazhuveli’ in Tamil and everybody understands what is ‘back water’ and when the revenue record shows that the disputed land is a ‘back water’, the land cannot be used for any other purpose except as waterbody. The stand taken by the respondent/State is that the land is only a “Poramboke Kazhuveli” and Kazhuveli does not mean that it is either a marsh land or back water or water body. It is also argued that “Poramboke Kazhuveli” as per the Revenue Department, is an unobjectionable and assignable land.

59. The back water has been defined in Merriam-Webster dictionary as follows:—

“1 a: Water backed up in its course by an obstruction, an opposing current, or the tide

b: a body of water (such as an inlet or tributary) that is out of the main current of a larger body

2 a: an isolated or bewared place or condition

b: an unpopular or unimportant field (as of study or business)”

60. The back water has been defined in Concise Oxford English Dictionary as follows:—

“the term ‘Marsh’ means, ‘an area of low-lying land which is flooded in wet seasons or at high tide, and typically remains waterlogged at all times.”

61. The Division Bench of the Hon'ble High Court of Madras in Susetha v. The Union of India (W.P No. 30725 of 2008 dated 28.07.2010) had occasion to consider the disputed land in W.P No. 30725 of 2008 is a marsh land or not. As is clear from the said judgment the dispute in that case was with regard to the action of the respondents in carrying out reclamation and/or construction activity in Survey No. 403/2, 3, 4, 5, 6 at Okkiam Thoraipakkam Village and prayer was to restore the same to its earlier state. The case of the Writ Petitioner was that the Okkiam Thoraipakkam Village comprising an extent of 1494 acres is situated on the peripheral area of South Chennai and is part of the Velachery - Pallikaranai Swamp, the catchment area of which contains as many as 90 water bodies and it is a source of copious surface water and recharging the ground water aquifers of the area and respondents cannot be allowed to reclaim or carry out any construction therein. The Division Bench found that as per the revenue records the said land is situated at a distance of 13 km East from Velachery/Pallikaranai Swamp. The revenue records originally recorded it as back water. Therefore, the court has to decide whether it is a marsh land or not. Holding that the back water to be in existence, it is to be connected to Sea nearby and the disputed land is not so connected, the Division Bench held as follows:

“According to the Concise Oxford English Dictionary, the term ‘Marsh’ mean, ‘an area of low-lying land which is flooded in wet seasons or at high tide, and typically remains waterlogged at all times. In Geography, a ‘marsh’, or ‘morass’, is a type of wetland that is subject to frequent or continuous flood, typically the water is shallow and features grasses, rushes, reeds, typhas, sedges and other herbaceous plants. When it has been proved beyond doubt that the entire area is already a developed one and the Government has handed over the land to the Tamil Nadu Slum Clearance Board only after clearing he encroachers in the area, no prudent man could say that the land continues to be a marshy one, since it will be unfit for human habitation. It is also within the knowledge of anybody that a ‘backwater’ to be in existence, it should be connected to a sea nearby. But, the Buckingham Canal and Bay of Bengal gets connected at a distance of nearly twenty kilometers away from the proposed area and the land in question is to the West of sea coast and in between the sea coast and the land there exist several well-developed areas such as Neelangarai, Injambakkam, Palavakkam etc. Therefore, the possibility of sea water flowing to the land in question is completely ruled out. Further more, no cultivation could be expected in a back water area.”

62. The Google Map produced by the applicant along with the Sholinganallur Map makes it clear that the Buckingham Canal runs South to North. Survey No. 282, the subject matter in W.P No. 12125 of 2013, Okkiam Thoraipakkam and Karappakam are all lying towards the West of Buckingham Canal. The disputed lands lie to the East of Buckingham Canal. Buckingham Canal meets the Bay of Bengal at a distance of more than twenty kilometers away from the disputed land and there is no material to show that the sea water or the water from the Bay of Bengal during high tide reaches anywhere near the disputed land. Therefore, even though in the old records, the disputed land is shown as back water, while describing in Tamil ‘Kdzhuveli’, as found by the Division Bench in Susetha's case (supra), it cannot be found that the disputed land is back water.

63. On the materials now available it can only be found that the disputed land is neither a water body nor back water nor a marsh land. But as admitted by respondent Nos. 4 and 5 in their reply, the disputed land is a low lying area in comparison to the road level, and it is specifically pleaded that “in fact water is found in the said land only around 4-5 months in a year, around the rainy season”. Therefore, it cannot be disputed that at least for a period of 4-5 months in a year, the disputed land is inundated with rainwater. The disputed land transferred to the Transport Department forms part of the land which lies to the East of Buckingham Canal and comprised in Survey No. 707. Similarly, the land lying to the West of Buckingham Canal is also of similar nature. As a low lying area it is filled with water for about 4-5 months in a year. These lands therefore could be wetlands, though they are not notified wetlands under the Wetlands (Conservation and Management) Rules, 2010 and hence cannot claim the protection provided under the 2010 Rules.

64. As the lands existing on both sides of Buckingham Canal on the East and West are low lying lands, filled with water during heavy rain and consequential flood, they hold the excess water and reduce the ill-effects of flood to great extent. Thus there is no doubt on the ecological significance of these lands which act as a buffer in regulating the flood water. Considering the tragic effect of the heavy rain and consequential heavy flood experienced in Chennai during December 2015, if the nature of such lands is to be permanently altered by reclamation or putting up constructions and thereby destroying their function in acting as buffer zone, in the event of such heavy rain occurring again, the disaster could be unimaginable. Therefore, while considering the question of reclamation or construction on the lands situated on either side of the banks of Buckingham Canal, which are filled with rainwater for more than three months in a year, special care is to be taken.

65. As observed earlier, 2010 Rules provide for constitution of Central Wetlands Regulatory Authority under Rule 5. It is not disputed that the State of Tamil Nadu has also constituted Tamil Nadu State Wetlands Regulatory Authority, as per G.O(Ms.) No. 55 Environment and Forest Department dated 23.05.2015 Rule 6, of 2010 Rules, provides the process for identification of wetlands under different categories. As it is absolutely necessary, to protect the environment, applying the precautionary principles we direct the Tamil Nadu State Wetlands Regulatory Authority to inspect the lands involved in this application comprised in Survey No. 707, as well as the undeveloped lands on both sides of Buckingham Canal, and decide whether they are to be notified as wetlands under 2010 Rules. The applicant is at liberty to appear and make representation before the Tamil Nadu State Wetlands Regulatory Authority, during the process of identification of the wetlands. The Tamil Nadu State Wetlands Regulatory Authority shall decide whether all the protection available to the notified wetlands, is to be extended to these lands or not, duly keeping in mind the orders of Hon'ble Supreme Court referred in para 26, 27 and 28 of this judgment. Naturally, the Tamil Nadu State Wetlands Regulatory Authority shall also bear in mind the nature of these lands, their capacity to assimilate the excess rainwater and thus reduce the adverse effect of flood, while taking the decision. On taking the decision, a copy of the order shall be furnished to the applicant, who is at liberty to challenge the same in accordance with law.

66. As far as the dispute with regard to the 7 acres of land transferred to the Transport Department by the State, which is the crux of the dispute between the parties before the Tribunal, it is not disputed that this area lies at the rear end of the lands in Survey No. 707 and adjacent to the developed land. The land is transferred to the Transport Department by the State, for a public purpose. If any construction is taken on the said land, with the required precautions, such construction by itself may not cause serious environmental problem. Therefore, we find it not necessary to restrain the State from utilizing the land for construction of the structures for the Transport Department and for that purpose filling up that portion of the land, provided the State and the Transport Department take all the necessary precautions required so as to cause no harm to the nature of the remaining land in Survey No. 707. While making any construction in the disputed 7 acre plot, the respondents shall not put any debris or other materials on the remaining land in Survey No. 707 and shall not alter the nature of the remaining land. The permission granted shall not be a precedent to reclaim or convert the remaining land. It is also clarified that the non granting of prohibition against proposal of the Transport Department to construct buildings and driving test track in 7 acres of lands in Survey No. 707, does not mean that the remaining land or any part of it could be used for similar purpose. It is made absolutely clear that as far as the entire remaining area is concerned, any decision to permit any construction on all or any portion of the remaining land, shall be taken only after the Tamil Nadu State Wetlands Regulatory Authority considers the same and finds that construction in the said land would not cause any environmental or ecological problem.

67. The application is therefore disposed accordingly, with no order as to costs.

Application No. 145 of 2015 (SZ)

I.H. Sekar v. Department Of Forest And Environment

I.H. Sekar v. Department Of Forest And Environment

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