The Hon’ble Mr.MARKANDEY KATJU, CHIEF JUSTICEandThe Hon’ble Mr v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICAUTRE AT MADRASDated: 27.06.2005Coram:The Hon’ble Mr.MARKANDEY KATJU, CHIEF JUSTICEandThe Hon’ble Mr.Justice F.M.Ibrahim KalifullaW.P.No.20186 of 2000L. Krishnan… Petitionervs1. State of Tamil Nadu represented by its Secretary, Department of Revenue (Land Development) Fort.St.George, Chennai – 600 009.2. The Special Commissioner and Commissioner of Land Administration, Chepauk, Chennai – 600 005.3. The District Collector Villupuram District, Villupuram.4. The Tahsildar, Kallakurichi Taluk, Kallakurichi, Villupuram District.5. The Village Administrative Officer, Thatchur Post, Kallakurichi Taluk, Villupuram District – 606 202.6. Mr.Govida Naicker7. Mr.Muthusamy8. Mr.Chinnasamy https://hcservices.ecourts.gov.in/hcservices/

9. Mr.L.Maya Krishnan10. Mr.Ganesh Gounder11. Periyammal12. L. Sekhar… RespondentsPrayer: This writ petition is filed under Article 227 of theConstitution to issue a Writ of Mandamus direct the respondents 1 to5 to remove the encroachment made by respondents 6 to 12 in the KodiPoromboke land in Iyan Punjai Survey No.100/1, No.247, ThatchurVillage, Kallakurichi Taluk, Villupuram District measuring 5 acres and70 cents.For Appellant ::: Mr.S.ParthasarathyFor Respondents 1 to 5 ::: Mr.V.Raghupathy Government PleaderFor Respondent 6 ::: Mr.E.Vijay AnandO R D E RF.M.IBRAHIM KALIFULLA,JThis is a Public Interest Litigation, where the petitioner seeksfor a direction against respondents 1 to 5 to remove the encroachmentsmade by the respondents 6 to 12 in Odai Poromboke in Iyan Punji SurveyNo.100/1 at No.247, Tatchur Village, Kallakurichi Taluk, VillupuramDistrict measuring 5 acres and 70 cents.2. In fact, on an earlier occasion, the petitioner approachedthis Court in W.P.No.9562 of 1998 wherein the First Bench of thisCourt passed an order dated 13.7.1998 disposing of the writ petition,giving liberty to the petitioner to approach the very same respondents1 to 5 for the removal of encroachment. In the said order, theCollector and the Tahsildar, namely, respondents 3 and 4 were directedto decide the representation by passing a speaking order within onemonth and also intimate the same to the petitioner.3. This time, when the matter was taken up for hearing, learnedcounsel appearing for the sixth respondent brought to our notice thatthe fourth respondent, namely, Tahsildar had held an enquiry after theabove referred to orders of this Court and that he also submitted hisreport on 10.12.2004 and a copy of the said report was placed beforeus. On a perusal of the said report, we find that the enquiry made bythe fourth respondent has brought out the fact that not only therespondents 6 to 12 but the petitioner has also encroached into the https://hcservices.ecourts.gov.in/hcservices/ Odai Poromboke. The Tahsildar has ultimately reported that all theencroachments including that of the petitioner are liable to beremoved by taking necessary steps under the Tamil Nadu LandEncroachment Act.4. We also find that the land in question has been classified as‘Odai Poromboke’ in the revenue records. Though based on the report ofthe Tahsildar dated 10.12.2004, this writ petition can be summarilydisposed of by directing the third respondent to take necessary stepsfor the removal of the encroachments. We feel it appropriate to passthis order and give certain other directions to the first respondent-State Government to make an overall study of all such encroachments inrespect of the lands which have been classified as lands meant for thepurpose of storage of water (i.e. ponds, tanks, lakes, etc). We are ofthe view that in the present day context, such a step is required tobe taken by the State in order to improve the water storage facilityprevailing in this State since in many parts of Tamil Nadu people aresuffering from an acute shortage of water.5. Since time immemorial ponds, tanks and lakes have been used bythe people of our Country, particularly in rural areas, for collectingrain water for use for various purposes. Such ponds, tanks and lakeshave thus been an essential part of the people’s natural resources.However in recent years these have been illegally encroached upon inmany places by unscrupulous persons who have made their constructionsthereon, or diverted them to other use. This has had an adverse effecton the lives of the people.6. It is also relevant to state that day in and day out, manysuch petitions are being filed by way of ‘public interest litigation’alleging encroachments into ponds/tanks/lake/odai porambokes etc. indifferent parts of this State, more particularly in villages. Havingregard to the acute water scarcity prevailing in the State of TamilNadu as a whole, we feel that a time has come where the State has totake some definite measures to restore the already ear marked waterstorage tanks, ponds and lakes, as disclosed in the revenue records toits original status as part of its rain water harvesting scheme. Wealso take judicial notice of the action initiated by the StateGovernment by implementing the water harvesting scheme as a time boundprogramme in order to ensure that the frequent acute water scarcityprevailing in this State is solved as a long time measure. In fact,the classification as Ooranis, Odais, and Lakes in the revenue recordsare all areas identified in the villages where the rain water getsstored enabling the local villagers to use the same for variouspurposes throughout the year inasmuch as most parts of the State aresolely dependent on seasonal rains both for agricultural operations aswell as for other water requirements. Therefore, it is imperative thatsuch natural resources providing for water storage facilities aremaintained by the State Government by taking all possible steps both https://hcservices.ecourts.gov.in/hcservices/ by taking preventive measures as well as by removal of unlawfulencroachments.7. In this context, it will be appropriate to refer to thejudgment of the Hon’ble Supreme Court reported in Hinch Lal Tiwari v.Kamala Devi and others, AIR 2001 SC 3215. Paragraphs 12 and 13 arerelevant for our present purpose which read as under: -“ 12. On this finding, in our view, the High Courtought to have confirmed the order of theCommissioner. However, it proceeded to hold thatconsidering the said report the area of 10 biswascould only be allotted and the remaining fivebiswas of land which have still the character of apond, could not be allotted. In our view, it isdifficult to sustain the impugned order of theHigh Court. There is concurrent finding that apond exists and the area covered by it varies inthe rainy season. In such a case no part of itcould have been allotted to anybody forconstruction of house building or any alliedpurposes.13. It is important to notice that thematerial resources of the community like forests,tanks, ponds, hillock, mountain etc. are nature’sbounty. They maintain delicate ecological balance.They need to be protected for a proper and healthyenvironment which enables people to enjoy aquality life which is the essence of theguaranteed right under Article 21 of theConstitution. The Government, including theRevenue Authorities i.e. Respondents 11 to 13having noticed that a pond is falling in disuse,should have bestowed their attention to developthe same which would, on one hand, have preventedecological disaster and on the other providedbetter environment for the benefit of the publicat large. Such vigil is the best protectionagainst knavish attempts to seek allotment in non-abadi sites.”8. A reading of the above referred passages of the said Judgmentshows that the endeavour of the State should be to protect thematerial resources like forests, tanks, ponds, hillock, mountain,etc., in order to maintain the ecological balance. The Hon’ble SupremeCourt has highlighted that such maintenance of ecological balancewould pave the away to provide healthy environment which would enablethe people to enjoy a quality life which is essence of the rightguaranteed under Article 21 of the Constitution. While on the onehand, the State is bound to maintain the natural resources with a viewto keep the ecological balance intact and thereby provide a healthy https://hcservices.ecourts.gov.in/hcservices/ environment to the public at large in the State of Tamil Nadu, havingregard to the precarious water situation prevailing in the major partof the year, it is imperative that such noted water storage resources,such as tanks, odais, oornis, canals etc. are not obliterated byencroachers.9. In this connection reference may be made to Article 48A ofthe Constitution which states: -“Protection and improvement of environment andsafeguarding of forests and wild life: - The Stateshall endeavour to protect and improve theenvironment and to safeguard the forests and wildlife of the country.”10. No doubt the above provision is in the Directive Principlesof State Policy, but it is now well settled that the fundamentalrights and directive principles have to be read together, since it hasbeen mentioned in Article 37 that the principles laid down in theDirective Principles are fundamental in the governance of the countryand it is the duty of the State to apply these principles in makinglaws. The Directive Principles embody the aim and object of the Stateunder a Republican Constitution, i.e., that it is a welfare State andnot a mere police State, vide Kesavananda Bharati Vs. State ofKerala, (1973) 4 SCC 225 (vide paragraphs – 134, 139 and 1714) andembodies the ideal of socio-economic justice, vide Union of India Vs.Hindustan Development Corporation, AIR 1994 SC 988 (990). 11. Though the early decisions of the Supreme Court paidcomparatively scant attention to the Directive Principles in Part – IVof the Constitution as they were said to be non-justiciable and non-enforceable in the Courts (vide Article 37), the subsequent decisionsof the Supreme Court changed this trend and this new trend reached itsculmination in the 13 member bench Judgment of the Supreme Court inKesavananda Bharati’s Case (Supra), which laid down that there is nodisharmony between the directive principles and fundamental rightsbecause they supplement each other in aiming at the same goal ofbringing about a social revolution and the establishment of a welfareState, which is envisaged in the Preamble to the Constitution. TheConstitution aims at a synthesis of the two, and the DirectivePrinciples constitute “ the conscience of the Constitution”. Togetherthey form the core of the Constitution, vide Markandeya, V. Vs. Stateof A.P., AIR 1989 SC 1308 (paragraph – 9). They are not exclusionary,but are complementary to each other, vide Unnikrishnan, J.P. Vs.State of A.P., AIR 1993 SC 2178. It follows therefore that the courtsshould uphold, as far as possible, legislation enacted by the Statewhich seeks to remove inequalities and attain ‘distributive justice’,vide, Lingappa Pochanna Appealwar Vs. State of Maharashtra, AIR 1985SC 389 (paragraphs 16 and 20), Manchegowda Vs. State of Karnataka,AIR1984 SC 1151, Fateh Chand Himmatlal Vs. State of Maharashtra, AIR https://hcservices.ecourts.gov.in/hcservices/ 1977 SC 1825, etc., In recent decisions the Supreme Court has beenissuing various directions to the Government and administrativeauthorities to take positive action to remove the grievances whichhave been caused by non-implementation of the Directive Principles,vide Comptroller and Auditor General of India Vs. Jagannathan, AIR1987 SC 537 (paragraphs 20-21), Mukesh Advani Vs. State of M.P., AIR1985 SC 1363, Bandhua Mukti Morcha Vs. Union of India, AIR 1984 SC802, Animal and Environment Legal Defence Fund Vs. Union of India,(1997) 3 SCC 549, etc. 12. Apart from the above we may also refer to Article 51A(g) ofthe Constitution which makes it a fundamental duty of every citizen“to protect and improve the natural environment including forests,lakes, rivers and wild life”. This duty can be enforced by the Court,vide Animal and Environment Legal Defence Fund Vs. Union of India(supra, vide para-15).13. In M.C.Mehta Vs. Union of India, (1997) 3 SCC 715 (vide para– 10) the Supreme Court observed:- “Articles 21, 47, 48-A and 51-A(g) of the Constitutionof India give a clear mandate to the State to protect andimprove the environment and to safeguard the forests andwildlife of the country. It is the duty of every citizen ofIndia to protect and improve the natural environmentincluding forests, lakes, rivers and wildlife and to havecompassion for living creatures. The “PrecautionaryPrinciple” makes it mandatory for the State Government toanticipate, prevent and attack the cause of environmentdegradation.We have no hesitation in holding that in orderto protect the two lakes from environmental degradation itis necessary to limit the construction activity in the closevicinity of the lakes. 14. Therefore, we direct the respondents 1 to 5 to takenecessary legal steps to remove the alleged encroachments made by therespondents 6 to 12 as well as the petitioner over Odai Poramboke inIyan Punji Survey No.100/1 at No.247, Tatchur Village, KallakurichiTaluk, Villupuram District measuring 5 acres and 70 cents. Inasmuch asthis writ petition has come before us by way of a public interestlitigation, we take this opportunity to direct the State Government toidentify all such natural water resources in different parts of theState and wherever illegal encroachments are found, initiateappropriate steps in accordance with the relevant provisions of lawfor restoring such natural water storage resources which have beenclassified as such in the revenue records to its original position sothat the suffering of the people of the State due to water shortage isameliorated. https://hcservices.ecourts.gov.in/hcservices/

15. The writ petition is disposed of with the above directions.No costs. Consequently, W.P.M.P is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarpv/Copy to:1. State of Tamil Nadu represented by its Secretary, Department of Revenue (Land Development) Fort.St.George, Chennai – 600 009.2. The Special Commissioner and Commissioner of Land Administration, Chepauk, Chennai – 600 005.3. The District Collector Villupuram District, Villupuram.4. The Tahsildar, Kallakurichi Taluk, Kallakurichi, Villupuram District.5. The Village Administrative Officer, Thatchur Post, Kallakurichi Taluk, Villupuram District – 606 202.+1cc to Govt. Pleader SR.No.26158MAB(CO)kaa 04.07 Pre-delivery Order inW.P.No.20186/2000Deliveredon: 27.06.2005