Federation of K.K.NagarResidents' Welfare Associationsrep. by its President v. Department Fort St. George Chennai 600 009.3. Chennai Metropolitan Water Supply

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 25.02.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALW.P. NO. 826 OF 2008ANDM.P. NOS. 1 & 2 OF 2008Federation of K.K.NagarResidents' Welfare Associationsrep. by its President, Mr.VairasekarSP-20, III Street, I SectorK.K. Nagar, Chennai 600 078... Petitioner - Vs -1. The State of Tamil Nadu rep. by its Secretary to Government Public Works Department Fort St. George Chennai 600 009.2. The State of Tamil Nadu rep. by its Secretary to Government Environment and Forests Department Fort St. George Chennai 600 009.3. Chennai Metropolitan Water Supply and Sewerage Board, rep. by its Chairman-cum-Managing Director 1, Pumping Station Road Chennai 600 002... Respondents Writ petition filed for the issuance of a writ of mandamusdirecting the respondents to forbear from in any manner interferingwith the natural pond located between Double Tank Colony andRajamannar Salai, K.K.Nagar in Survey No.394 and altering itscurrent position and to direct the respondents to remove theencroachments in and around the natural pond area and preserve andmaintain the same in good condition. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Ms. P.SelviFor Respondents: Mr. Raja Kalifulla, GPORDERS.J.MUKHOPADHAYA, J.This writ petition, in public interest, has been preferred bythe petitioner, K.K.Nagar Residents' Welfare Associations(hereinafter referred to as 'Association') for issuance of a writof mandamus forbearing the respondents from in any mannerinterfering with the natural pond located between Double TankColony and Rajamannar Salai in survey No.394 and altering itscurrent position and to direct the respondents to remove theencroachments in and around the natural pond area and preserve andmaintain the same in good condition.2. According to the petitioner, there is a large natural pondlocated between Double Tank colony and Rajamannar Salai, measuringan extent of 3 acres in survey No.394, which was originally vestedwith Chennai Corporation. Subsequently, it was handed over to the3rd respondent, Chennai Metropolitan Water Supply and Sewerage Board(hereinafter referred to as 'Water Supply and Sewerage Board')almost 12 years ago. Both Chennai Corporation and Water Supply andSewerage Board failed to protect the naturally formed pond, whichhas several encroachments in and around the pond. They also failedand neglected to clear the pond of weeds and other vegetation thathave grown in it and bushes that has come up around it. The maingate for the pond has been damaged and kept open all the timeleading to passers-by using the area around the pond as an opentoilet and for use of anti-social elements for illegal activities.The deterioration of the water body has also lead to the areabecoming a fertile ground for breeding mosquitoes and members ofK.K.Nagar are put to great hardship and inconvenience.3. Learned counsel appearing on behalf of the petitionersubmitted that the petitioner has already represented the matter on3rd Feb., 2005 to the 3rd respondent to clear the natural pond of theweeds and maintain it in good condition, but no action has beentaken. On the other hand, they were shocked to learn that the 3rdrespondent is proposing to have an additional overhead storage tankand a pump in the double tank for a water distribution station.Proposal has been made to lay a big underground tank in the naturalpond area. The additional pump will be used for pumping water fromthe underground storage facility to the overhead tank and thecapacity of storage of water will be upgraded to 14 ML (ML –Million Litres) as against the existing 9.9 ML. The capacity of https://hcservices.ecourts.gov.in/hcservices/ pipeline that handles the distribution is also proposed to beincreased depending on the distance from the overhead tank. Thenatural pond is currently full of water having been replenished byrecent rain and it has been excellent source for harvesting rainwater and has facilitated in maintaining good water level in andaround the area of K.K.Nagar. The residents of K.K.Nagar andnearby localities, like Virugambakkam, Vadapalani, Ashok Nagar andM.G.R. Nagar have also been able to benefit by good ground watersupply because of the existing natural pond.The main submission made on behalf of the petitioner is thatif the proposal of the 3rd respondent is allowed to continue byputting in place an additional pump for pumping out water from theunderground storage facility and setting up an underground tank, itwill cause diminution of the tank area and, in turn, cause seriousdepletion of ground water and water table is sure to come down.Since time immemorial, ponds, tanks and lakes have been used bypeople in this country for collecting rain water for use forvarious purposes, but it is alleged that in recent years, suchwater bodies are illegally encroached upon by unscrupulous elementsor been diverted for other use, consequently affecting the lives ofthe people. Further, having regard to the acute water scarcity,which hits the State very often, more specifically the ChennaiCity, such natural resources need to be preserved and maintained soas to enable the rain water to be stored and to facilitateunderground recharge in the city.Ms.Selvi, learned counsel on behalf of the petitioner, whilesubmitted that there is a need for protecting tanks and checkingtheir encroachment, brought to the notice of the Court Act No.8/07– Tamil Nadu Protection of Tanks and Eviction of Encroachment Act,2007, which specifically provides measures for checkingencroachment by removing encroachers from tanks and other waterbodies, which are under the control and management of the PublicWorks Department. She also relied on one or other decision of thisCourt and Supreme Court to suggest that any disturbance of basicenvironment, such as air, water and soil is hazardous to life andwill violate Article 21 of the Constitution of India. Reliance wasalso placed on Article 47 and 48-A, which mandates the State toprotect and improve the environment and safeguard its forests.4. The 3rd respondent, Water Supply and Sewerage Board, in itscounter affidavit, while denied the allegation, shown grounds forutilising the land in question. According to the 3rd respondent,the entire area referred to by the petitioner belongs to the WaterSupply and Sewerage Board and is provided by pucca compound wall.The office of the Board is situated therein and there is noencroachment in the area surrounded by compound wall, as alleged.The lands are developed by putting up overhead tanks, undergroundtank and pump house for the benefit of the residents of K.K.Nagar https://hcservices.ecourts.gov.in/hcservices/ to supply water as supplied to the rest of the areas withinChennai. The Water Supply and Sewerage Board proposed certainimprovement works to the water supply system in Chennai City underJawaharlal Nehru National Urban Renewal Mission funding fromGovernment of India. One of the proposal is to construct overheadtank of 2.4 ML capacity and underground tank of 14.0 ML capacity atK.K.Nagar head works adjacent to Rajamannar Salai. The entire landearmarked for the proposed construction of underground tank andoverhead tank and pump house inside is totally free from anyencroachment and being already protected by compound wall.5. Learned Government Pleader appearing for the Water Supplyand Sewerage Board submitted that the entire area on whichK.K.Nagar has been established, including the lands in surveyNo.394 were shown more than 100 years back in the 'Adangal' as'Periya Eri'. The nature of the land having subsequently changedfor more than 100 years, in the last revenue record, it wasclassified as 'Government Poramboke' (Government Lands). The landswere subsequently converted into housing colony, as there was noeri or pond in the said lands at that time. The Government in G.O.Ms. No.443, Revenue Department, dated 10th March, 1982, permittedthe Tamil Nadu Housing Board (hereinafter referred to as 'HousingBoard') to enter upon the land measuring 65.73 acres in surveyNo.394 of Kodambakkam Village, Saidapet Taluk, Chengalpet Districtfor implementation of the Kodambakkam- Pudur Housing Scheme and thelands were placed with the Housing Board for implementation of thehousing scheme. The Housing Board, after development of the lands,allotted plots to general public and sale deeds were issued tothem, including the members of the petitioner-Association. TheHousing Board has allotted 13,889 sq. mtrs. of land for theKodambakkam-Pudur Housing Scheme and Water Supply and SewerageBoard was entrusted with lands for extension of K.K.Nagar watersupply head works.What learned Government Pleader wanted to highlight is that,if original record in 'Adangal' is looked into, then the houses,which have been constructed over the lands at K.K.Nagar, all ofthem have been shown as 'Periya Eri', but because of change in thenature of lands over hundred years, as in the last revenue recordit was classified as Government poramboke, the lands were given tothe Housing Board, in whose turn it was allotted to the members ofthe petitioner-association and others. It was submitted that thepetitioner having enjoyed such benefit, now for the purpose ofextension of water supply system in K.K.Nagar by the Water Supplyand Sewerage Board, the petitioner cannot rely on 'Agangal' tosuggest that it is 'Periya Eri'.According to the respondents, additional lands were requestedby the Water Supply and Sewerage Board, as Krishna Water isexpected to be delivered at Poondi, for drawing additional supply,treatment, transmission and distribution system, which has to be https://hcservices.ecourts.gov.in/hcservices/ taken up by the Water Supply and Sewerage Board. The site wasoriginally disposed for public purpose in K.K. Nagar measuring 59grounds located on P.V.Rajamannar Salai and low lying to a depth of2.5 M to 3.0 M, which was surrounded by water head works on theWest, residential quarters of the staff of Tamil Nadu Housing Boardon the South, Kanikapuram Slum on the East and P.V.Rajamannar Salaion the North. Considering the fact that use will be for publicpurpose for providing drinking water under the Krishna WaterProject, lands were given free of cost to the Water Supply andSewerage Board and possession was handed over on 5th July, 1991.Learned Government Pleader referred to G.O. Ms. No.443 dated10th March, 1982 to show that the lands to an extent of 35.84 acreswere handed over for several purposes and balance of 29.20 acreswere handed over to the Housing Board for non-saleable purpose forconstruction of road, playground, storm water drain, etc., videaforesaid order. Total extent of 65.73 acres in survey No.394 ofKodambakkam Village, Saidapet Taluk, Chengalpet District wereplaced under the disposal of the Housing Board vide its resolutionNo.9.03 dated 27th Nov., 1993, which resolved to allot the sitemeasuring 13,889 sq. mtrs. to Water Supply and Sewerage Board forits Krishna Water Project free of cost in public interest.It was further submitted by the counsel for the respondentsthat Water Supply and Sewerage Board has already awarded the workof construction of the above structure, i.e., overhead tank,underground tank and pump house to the contractor, M/s.IVRCL on 29thAug., 2007 for a value of Rs.23.83 Crores and the contractor hasalready commenced work in the said location on 18th Oct., 2007. Thework is under progress. It is at this stage the writ petition isstated to have been filed with a view to stop the construction.6. Learned counsel for the petitioner placed certainphotographs to show that work in under progress; poclain machinesare used for the work and at some place earth has been stacked tofill up the area. From these photographs, it appears that thelands in dispute is surrounded by pucca boundary wall and thereappears to be some water located in the area which is full ofalgae. It is a shallow area, wherein it appears that rain waterwas accumulated.7. From the record it appears that the area in disputemeasuring 59 grounds in survey No.394/1 (Part) located onP.V.Rajamannar Salai is low lying to a depth of 2.5 M to 3.0 M,surrounded by water head works on the West, residential quarters ofthe staff of Tamil Nadu Housing Board on the South, KanikapuramSlum on the East and P.V.Rajamannar Salai on the North. The sameis also clear from the photographs produced by the counsel for thepetitioner. From the counter affidavit we find that forstrengthening the water supply in Chennai city, a master plan hasbeen prepared. Out of 16 water supply stations proposed, 12 water https://hcservices.ecourts.gov.in/hcservices/ supply stations have already been completed, but balance 4 watersupply stations could not be taken up by the Water Supply andSewerage Board due to financial constraint. Now, the Government ofIndia under the Jawaharlal Nehru National Urban Renewal Mission hasapproved various projects for Rs.22.00 Crores for improving watersupply system in Chennai city of which details have been shown atpara-9 of the counter affidavit filed by the 3rd respondent,including the ground water tank, overhead tank and pump house inquestion.8. We have heard the parties and noticed the rival contentionsand the facts as highlighted by them.9. Right to enjoy quality life in a healthy environment whereecological balance is maintained by preserving ponds, tanks andlakes is a right guaranteed under Article 21. If illegalencroachments are made in those places, Court can direct to removesuch encroachments. In this connection, one may refer to aDivision Bench judgment of this Court in L.Krishnan – Vs – State ofT.N. reported in 2005 (1) CTC 1. In the said case, the Courtfurther held that under Article 51 A (g), it is the duty to protectforest, lakes, rivers, wildlife, etc.In the case of Gurpal Singh – Vs – State of Punjab reported in2005 (5) SCC 136 :: AIR 2005 SC 2755, the Supreme Court, whilediscussed the scope of entertaining a Public Interest Litigation,observed that the information given in the petition should not bevague and indefinite and the Court has to strike balance betweentwo conflicting interests.Article 21, 48-A and 51 A (g) also fell for considerationbefore the Supreme Court in the case of Intellectuals Forum,Tirupathi – Vs – State of A.P. reported in 2006 (3) SCC 549. Inthe said case, the Court was dealing with the question ofconservation of natural resources such as water and land resources,public water tanks, etc. The need of urban development was shownby the respondents. The Supreme Court, while observed that balancehas to be maintained between development needs asserted andenvironmental degradation, further observed that it is the duty ofall to protect environment and preserve and conserve naturalresources for present and future generations. In the said case,considering the need for housing and shelter, on the facts of thecase, the Court held that the right to shelter do not seem to be sopressing so as to outweigh all environmental considerations, but inthe peculiar facts and circumstances, the Supreme Court observedthat there could not be complete restoration and revival of thetanks, considerable developmental activities having carried out athuge expense involving crores of rupees. https://hcservices.ecourts.gov.in/hcservices/

10. From the record it appears that the land in question,survey No.394/1 (Part) measuring 59 grounds is low lying to a depthof 2.5 M to 3.0 M. The photographs produced show that some waterhas accumulated there, it is full of filth and covered by algae.It is surrounded not only by compound wall, but locality isadjoining to it. Though in the adangal, more than hundreds ofyears before the total area was shown as 'Periya Eri', the natureof the land of the area having changed and in the revenue recordsthe same having now been classified as Government poramboke landswere allotted to public since 1982, including the members of thepetitioner association. Now, the total area, survey No.394 cannotbe restored to its original position, more than 26 years havingpassed and houses having been constructed by persons/Housing Boardon the area. So far as the land in the disputed survey No.394/1(Part) is concerned, what the respondents are constructing isunderground tank with a pump house and overhead tank. From theplan as placed on record it will be evident that it is a puccastructure underground tank, which is proposed, with a size of 44.0M x 32.0 M having water depth of 5.00 M and capacity of 7.0 ML.Apart from such underground tank, proposed overhead tank is ofcapacity 2.4 ML. From the aforesaid fact and plan, it will beevident that in the shallow low lying area, in place ofaccumulating some water on it, a pucca tank is to be constructed,which will contain much more capacity of water than the water,which now accumulates or is available there.11. It has been pleaded and not disputed that there is acuteshortage of drinking water in Chennai city. The underground waterin the city, particularly, those which are nearer to sea and alsothe present area is not meant for direct drinking. Even if somepeople take out the underground water, it may be utilised for anypurpose, but not for the purpose of drinking clean and safe water.What Water Supply and Sewerage Board is doing pursuant to theirscheme, including the additional scheme is that, they are purifyingthe water and in the present case, the scheme is to utilise theKrishna water, and after its purification, to supply it to theresidents of the K.K. Nagar, including the members of thepetitioner association.It cannot be denied that in absence of water no livingcreatures can survive. Every person has a fundamental right tolive and for that they have a right to water, but it should be pureand safe for human consumption. In the present case, the water inthe land in question is shallow water filled with algae and is notsafe for drinking; on the other hand it is a place for breedingmosquitoes. What Water Supply and Sewerage Board is doing, in thepresent case, is that they are not closing the source of suchwater, but constructing a pucca tank for retaining water for supplyof safe drinking water to the residents of the area. https://hcservices.ecourts.gov.in/hcservices/

12. From the aforesaid fact it will be evident that there isno conflicting interest between the parties and what measures havebeen taken by the respondents will strike balance between theconflicting interest. We find no merit in the writ petition andthe same is, accordingly, dismissed. Consequently, connectedmiscellaneous petitions are also dismissed. But there shall be noorder as to costs.GLNSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Secretary to Government Public Works Department Government of Tamil Nadu Fort St. George Chennai 600 009.2. The Secretary to Government Environment and Forests Department Government of Tamil Nadu Fort St. George Chennai 600 009.3. The Chairman-cum-Managing Director Chennai Metropolitan Water Supply and Sewerage Board 1, Pumping Station Road Chennai 600 002.1 cc to Mr.J.Raja Kalifulla, G.P., SR.99881 cc to M/s.P.Selvi, Advocate, SR.99991 cc to Government Pleader, SR.10053TS (CO)dv/3.3. W.P. NO. 826 OF 2008