Environmental protection of water catchment areas trumps property rights; prior binding precedent upheld over erroneous per incuriam declaration.

(By G.R.SWAMINATHAN, J.)

Heard both sides.

2.The writ petitioner is the president of a water users association.

Its members depend upon Thiruvalayanallur Kanmoi for their irrigation requirements. The said water body is spread over 79.3 acres of land. The petitioner's grievance is that there are encroachments in the water body. He would further allege that patta has been granted in respect of the water catchment areas and that they should be cancelled. He points out that the pattadhars have erected concrete barriers thereby preventing free flow of water. Taking note of the petitioner's representation, the Assistant Engineer, PWD/WRD, Periyar-Vaigai Basin Circle, Madurai vide letter dated 23.07.2019 called upon the Tahsildar, Vadipatti to take steps to cancel the pattas issued in respect of water catchment areas. Since consequential action was not taken, the present writ petition came to be filed.

3.The photographs enclosed in the typed set of papers indicate that the pattadars have erected concrete barriers thereby preventing the free flow of water. The issue that arose before the Hon'ble Division Bench of the Madras High Court in J.Amsaveni v. State of T.N (2023 (3) L.W 419) was as follows :

“where certain areas have been classified as water catchment areas for Red Hills Lake and declared as a “no development zone” under the Master Plan for Chennai, whether a landholder of a portion of such area can seek reclassification as Urban Use Zone so that development activity can be carried out.”

His Lordship Mr.Justice V.Lakshminarayanan who authored the judgment declared in eloquent terms that the environmental interest will trump the property rights of the individual. When we indicated our intention to dispose of this writ petition by following J.Amsaveni, it was pointed out by Ms.V.Janaki Devi a member of the Bar, that a co-ordinate Bench in M/s.Global Waste Recyclers Ltd. vs The Government of Tamil Nadu and Ors., WP 13419 of 2017, etc., batch dated 30.04.2024, has declared the judgment in J.Amsaveni vs The State of Tamil Nadu, W.P.No.26673 of 2017 dated 24.04.2023 case as per incuriam.

4.A perusal of the judgment shows that the later Division Bench had framed the following issue:-

(g) Whether the judgment in J. Amsaveni vs State of Tamil Nadu is in ignorance of statutory provisions and several binding precedents of the Hon’ble Supreme Court on the interpretation of provisions under the Town Planning Legislations of different States?

We should note in Paragraph No.79, the Bench in Global Waste Recyclers Ltd has referred to the practice settled by the Supreme Court that if one Coordinate Bench does not agree with the principles of law enunciated by an earlier Bench of coordinate strength, the matter has to be referred to a Larger Bench. Having rightly noticed this position, the Bench held that it is entitled to invoke the doctrine of per incuriam and hold that the previous judgment is not a binding precedent.

5.In Paragraph No. 84, the Division Bench in Global Waste Recyclers Ltd’s case held that, in Amsaveni’s case the Bench had not noticed the stare decisis or decisions of the Supreme Court in Indore Vikas Pradhikaran Vs. Pure Industrial Coke and Chemicals Limited, 2007 [8] SCC 705 and Association of Vasanth Apartments' Owners Vs. V.Gopinath and Others, 2023 SCC Online 137. We would have adopted the same course of action as done in Global Waste Recyclers Ltd’s case had the Bench in Amsaveni’s case not referred to the aforesaid judgments. To convince ourselves, we pursued the order in Amsaveni’s case. To our surprise, we found that the Division Bench in Amsaveni’s case had, in fact, r