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2019 Supreme(Mad) 515
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, S. VAIDYANATHAN, JJ.
I.H. Sekar - Appellant
Versus
The Principal Secretary to Government of Tamil Nadu, Revenue Department, Fort St. George, Secretariat, Chennai & Others - Respondents
W.P. 10821 of 2017 & W.M.P.Nos. 11835 & 15424 of 2017
Decided on : 29-04-2019
Advocate Appeared:
For the Petitioner:V.B.R. Menon, Advocate.
For the Respondents:Narmadha Sampath, Addl. Advocate General-V Asst. by S.N. Parthasarathy, Govt. Advocate, A.Ansar, Govt. Advocate, B. Rabu Manohar, Sr.Central Govt. Standing Counsel.
The transfer of Kazhuveli lands, which are wetlands, for the construction of buildings is in violation of the Public Trust Doctrine and the Wetlands (Conservation and Management) Rules, 2017.
Headnote:
The court held that the impugned Government Orders transferring Kazhuveli lands to the Respondents 5 & 6 for construction of buildings were illegal and quashed them. The court directed the Respondents to stop further constructions, relocate the buildings constructed on the lands to some other permitted area within a period of one year, and restore the lands to their original condition. The court also directed the Chief Secretary to convene a meeting with the Chairperson, Tamil Nadu State Wetland Authority, and other Respondents once a month to review the action taken by the Chairperson and his/her team in respect of survey and identification of wetlands throughout the State of Tamil Nadu. The court further directed the Eight Respondent to conduct periodical and surprise inspections, field survey, and create boundary marks in respect of Wetlands as per the provisions of the Wetlands (Conservation and Management) Rules, 2017 and submit a report to the Chief Secretary every month, who, in turn, is directed to forward a copy of the same in affidavit format to the Registrar General of this Court once in three months.
Fact of the Case:
The Petitioner, a Founder and Managing Trustee of the “Nature Trust,” filed a Writ Petition under Article 226 of the Constitution of India, seeking to quash the Government Orders issued in G.O.(Ms) No. 25, Revenue [LD4(1)] Department dated 18.01.2013 and G.O.(Ms) No. 194, Revenue [LD4(1)] Department dated 09.06.2014 by the 1st Respondent, by which, it was decided to transfer 2.83.50 Hectors of land in S.No.707/2 to the 5th Respondent and 12.72.00 Hectors of land in S.No.707/3 to the 6th Respondent respectively. The Petitioner also sought a direction to the 3rd Respondent to restore, protect and preserve the entire extent of “Back Water (Kazhuveli) lands” lying along the sides of Buckingham Canal in the Revenue District of Kancheepuram.
Finding of the Court:
The court found that the impugned Government Orders were illegal and quashed them. The court held that the lands in question were Kazhuveli lands, which are wetlands, and that the transfer of these lands for the construction of buildings was in violation of the Public Trust Doctrine and the Wetlands (Conservation and Management) Rules, 2017. The court also found that the Respondents had failed to take adequate steps to protect and preserve the Kazhuveli lands.
Issues: 1. Whether the impugned Government Orders transferring Kazhuveli lands to the Respondents 5 & 6 for construction of buildings were illegal? 2. Whether the Respondents had failed to take adequate steps to protect and preserve the Kazhuveli lands?
Ratio Decidendi: The court held that the impugned Government Orders were illegal and quashed them. The court held that the lands in question were Kazhuveli lands, which are wetlands, and that the transfer of these lands for the construction of buildings was in violation of the Public Trust Doctrine and the Wetlands (Conservation and Management) Rules, 2017. The court also found that the Respondents had failed to take adequate steps to protect and preserve the Kazhuveli lands.
Final Decision: The court allowed the Writ Petition and quashed the impugned Government Orders. The court directed the Respondents to stop further constructions, relocate the buildings constructed on the lands to some other permitted area within a period of one year, and restore the lands to their original condition. The court also directed the Chief Secretary to convene a meeting with the Chairperson, Tamil Nadu State Wetland Authority, and other Respondents once a month to review the action taken by the Chairperson and his/her team in respect of survey and identification of wetlands throughout the State of Tamil Nadu. The court further directed the Eight Respondent to conduct periodical and surprise inspections, field survey, and create boundary marks in respect of Wetlands as per the provisions of the Wetlands (Conservation and Management) Rules, 2017 and submit a report to the Chief Secretary every month, who, in turn, is directed to forward a copy of the same in affidavit format to the Registrar General of this Court once in three months.
M. Venugopal & S. Vaidyanathan, JJ.
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, seeking to call for the records related to the Government Order Nos. (i) G.O.(Ms) No. 25, Revenue [LD4(1)] Department dated.18.01.2013 and (ii) G.O.(Ms) No. 194, Revenue [LD4(1)] Department dated.09.06.2014 by the 1st Respondent transferring 2.83.50 Hectors of land in S.No.707/2 to the 5th Respondent and 12.72.00 Hectors of land in S.No.707/3 to the 6th Respondent respectively and to quash the same and consequently to direct the 3rd Respondent to restore, protect and preserve the entire extents of “Back Water (Kazhuveli) lands” lying along the sides of Buckingham Canal in the Revenue District of Kancheepuram.)
“Varappu Uyara Neer Uyarum
Neer Uyara Kadhir Uyarum
Kadhir Uyara Kudi Uyarum
Kudi Uyara Kol Uyarum
Koal Uyara Koan Uyarvan.”
- By Avvaiyar, a Tamil Female Poet
Roughly, it could be translated as:
“Raising ridges raise water;
Raising water raise crops;
Raising crops raise the subjects;
Raising subjects raise the king.”
The above Poem has been wrongly understood by our Rulers in our Tamil Nadu, as, for the last five decades, they concentrate only on production of artificial waters (liquors) and not in safeguarding of the natural water. Likewise, the Politicians, instead of taking steps to raise the standard of living of subjects, are enriching themselves and ensure that their wards also become rich.
2. The present order aims to unfold the failure of the Government of Tamil Nadu after 1968 in protecting the Water Bodies and to add fuel to the fire, Two Government Orders were also issued, which are under challenge in this Writ Petition for transfer of Kazhuveli/Wet/Marsh lands to the State Government Departments for elevation of buildings thereon.
3. This Writ Petition, which was specifically posted before this Bench for hearing on the orders of the then Hon'ble Chief Justice, has been filed in the form of Public Interest Litigation, seeking to quash the Government Orders issued in G.O.(Ms) No. 25, Revenue [LD4(1)] Department dated 18.01.2013 and G.O.(Ms) No. 194, Revenue [LD4(1)] Department dated 09.06.2014 by the 1st Respondent, by which, it was decided to transfer 2.83.50 Hectors of land in S.No.707/2 to the 5th Respondent and 12.72.00 Hectors of land in S.No.707/3 to the 6th Respondent respectively. The Petitioner also sought a direction to the 3rd Respondent to restore, protect and preserve the entire extent of “Back Water (Kazhuveli) lands” lying along the sides of Buckingham Canal in the Revenue District of Kancheepuram.
4. The facts, leading to filing of this Writ Petition, are as follows:
(i) The Petitioner is the Founder and Managing Trustee of the “Nature Trust”, which is formed with an object of protecting the environment, the Natural Resources and also the Government Poramboke lands, water ways, grazing lands etc., against encroachments. It was stated that 24.93.0 Hec. (61.60 Acres) of lands in S.No.707 of Sholinganallur Village & Taluk, Kancheepuram District has been classified as “Backwater (Kazhuveli) lands” in the Revenue Records and those lands, lying adjacent to Buckingham Canal are Water bodies/Wetlands. The Buckingham Canal receives the excess water from Pallikkaranai Marshlands through “Thoraipakkam-Okkiam Channel” and discharges into the sea and acts as a protective shield around the Chennai City;
(ii) It was submitted that the Kazhuveli land helps to avoid/mitigate the effects of floods during excess rains and high tides such as Tsunami and to store the excess water entering into the Buckingham Canal, thereby preventing wastage of water into the Sea. The land also facilitates the recharging of Wells/ponds, etc., in the nearby Villages and provide aquifer effect. It was further submitted that the Respondents, who are duty bound to protect and preserve Water bodies and Water areas/Wetlands, such as Kazhuveli lands, have neglected their primary responsibility and sub-divided and transferred 2.83.5 Hec
