S.Venkatesan v. Government of Tamil Nadu

G.O.Ms.No.136 dated 15.9.2006.M.P.No.2 of 2006 in W.P.No.19388 of 2006 is filed praying toimplead the petitioners as the proposed respondents 4 and 5 inW.P.No.19388 of 2006.M.P.No.1 of 2008 in both the W.P.No.19388 of 2006 andW.P.No.7243 of 2007 is filed praying to implead the petitioner as theproposed 4th respondent in both the W.P.Nos.19388 of 2006 and 7243 of2007.For petitioner in W.P.No.19388 of 2006 : Miss R.Vaigai for Mr.Balan HaridossFor petitioner in W.P.No.7243 of 2007 : Mr.Ajay Khose For respondents inboth writ petitions : Mr.G.Masilamani, Advocate General, assisted by Mr.S.Sivashanmugam Government Advocate For implead petitioner in M.P.No.2 of 2006 in W.P. No.19388 of 2006 : Mr.V.RaghavachariFor implead petitioner in M.P.No.1 of 2008 in W.P. Nos.19388 of 2006 and 7243 of 2007 : Mr.V.Ragupathi ----- COMMON JUDGMENTR.SUDHAKAR,J. The Writ Petitions are filed in public interest to issue awrit of declaration to declare the resolution of the 3rd respondentdated 13.6.2006 in the emergency meeting held on 13.6.2006 toestablish the new bus stand in the Tindivanam Ery land (SurveyNos.33/4 and 36/5) as illegal, arbitrary and contrary toEnvironmental law declared by the Hon'ble Supreme Court andconsequently direct the respondents to implement G.O.Ms.No.136 dated15.9.2006.2. In both the writ petitions the facts and the relief sought https://hcservices.ecourts.gov.in/hcservices/ for are similar. Hence, both the writ petitions are taken togetherand disposed of by this common order. 3. The brief facts of the case of the writ petitioners in boththe case is as follows:- (i) After construction of fly over in Tindivanam Municipal Town,the existing old bus stand was not sufficient to cater to the needsof the public and is causing traffic congestion. The TindivanamMunicipality, initially has taken a decision to establish new busstand in Tindivanam Ery in R.S.Nos.33/4 and 35/5 measuring 6 acres.The Council of the third respondent, on 27.11.1991 requested thefirst respondent government to grant permission to enter upon theland pending finalisation of alienation of the land. Thereafter, thethen elected body of the Municipal Council of the third respondentpassed Resolution No.473 dated 25.5.1998 giving its concurrence forthe alienation of Tindivanam Ery and thoppu poramboke lands for thenew bus stand. The District Collector, Villupuram by hiscommunications dated 10.1.2000, 29.3.2000 and 13.6.2000 recommendedthe proposal of the Tindivanam Municipal Council to the firstrespondent. The first respondent Government in G.O.No.101 dated5.3.2001 passed orders alienating the Ery and thoppu lands in allmeasuring 6 acres in R.S.Nos.33/4 and 36/5 to the third respondent onpayment of Rs.12,79,488/- towards cost of the land and Rs.1,361/-towards the cost of standing trees. On payment of money, the landwas handed over to the third respondent on 14.1.2003. After this noaction was taken. (ii) The construction of new bus stand on the Ery is not a goodproposal in public interest. The public are opposing theconstruction of new bus stand on the Ery land as the same woulddamage the water resources and the water table of Tindivanam Townwill go down. The rain water should accumulate in the Ery, however,if the same is filled up for the bus stand purpose, it would resultin the flooding of Tindivanam Town during monsoon and other rainyseasons. If new bus stand is put up in the Ery land, it will resultin development of the adjacent places and it will cause furtherdamage the entire Ery resulting in pollution. In this process,the entire rain water body, the Ery will be decimated in the nearfuture and cannot be revived by any means. It will cause a permanentand irrevocable damage to the ecology. (iii) In view of the public opposition for establishing newbus stand in the Ery land, the then elected body of the TindivanamMunicipal Council, on 30.7.2004 passed a resolution No.354 toestablish the new bus stand in the land belonging to Wakf Board atSurvey No.202 measuring 6 acres on the National Highways No.45 inGidangal village on the Mylam Road, Tindivanam. The said land isabout 250 metres away from the existing bus stand and the same is https://hcservices.ecourts.gov.in/hcservices/ within the Town limits of Tindivanam. Second respondent Commissionerof Municipal Administration permitted the third respondent to appointa consultant for construction of new bus stand vide its proceedingsdated 9.6.2004. Third respondent Municipality passed resolutionNo.444 dated 30.9.2004 to appoint consultant for designing the busstand. (iv) As two resolutions were passed by the TindivanamMunicipality one on 25.5.1998 by the past elected body of MunicipalCouncil to establish the new bus stand in the Tindivanam Ery andother one on 30.7.2004 by the subsequent elected body of theTindivanam Municipal Council to establish the new bus stand in WakfBoard land, the third respondent by its letter dated 10.10.2004sought clarification from second respondent Commissioner of MunicipalAdministration as to which resolution has to be acted upon. (v) The writ petitions filed under public interest litigationto quash the Municipal Council's Resolution No.458 dated 30.9.2004seeking to establish new bus stand in the Wakf Board land weredismissed.(vi) Second respondent taking note of the two resolutionspassed by elected body and the need to preserve the Ery, taking intoconsideration of G.O.Ms.No.186 dated 29.4.2003 which prohibitsencroachment of any Ery, Pond or any water resources, accepted theproposal to establish new bus stand in the land belonging to WakfBoard. Accordingly second respondent vide his letter dated25.2.2005 directed the third respondent to initiate action with theWakf Board for getting the land for establishing new bus stand. Thesaid letter was also placed before the Council of the thirdrespondent and the same was registered by the Council in itsResolution No.110 dated 4.3.2005. (vii) Thereafter, the third respondent approached the DistrictCollector, Villupuram with a request to ascertain the willingness ofthe Wakf Board to sell the land to the third respondent or to leaseout the land on long term basis for establishing new bus stand.After inspection of the said land, the District Collector submittedhis report to the first respondent stating that the land belonging tothe Wakf Board in Survey No.202 at Gidangal village can be utilisedfor construction of new bus stand. The Tamil Nadu Wakf Board agreedfor fixing the lease amount at Rs.60,000/- per month and agreed tolease out 6 acres out of 24.04 acres in Survey No.202 and forreceiving Rs.6,00,000/- towards advance. On 17.8.2005, the Councilof the third respondent agreed to the lease amount and advanceproposed by the Wakf Board in its Resolution No.395. Accordingly,third respondent by its letter dated 18.8.2005 sought permission forpaying the lease amount and the lease advance for the new bus stand.The first respondent issued G.O.Ms.No.136, Municipal Administration https://hcservices.ecourts.gov.in/hcservices/ and Water Supply (MA 4) Department dated 15.9.2005 grantingpermission to the third respondent to take over 6 acres of land outof 24.04 acres in Survey No.202 of the Gidangal village from theTamil Nadu Wakf Board on three year lease basis extendable 25 timesfor construction of new bus stand. First respondent also permittedthe third respondent to pay the lease rent of Rs.60,000/- per monthwith advance amount of Rs.6 lakhs to the Tamil Nadu Wakf Board. (viii) On issuing G.O.Ms.No.136 dated 15.9.2005, the possessionof Wakf Board's land was taken after paying the lease and advanceamount. The land was cleaned and levelled with DistrictCollector's approval. The Regional Transport Officer accordednecessary permission for opening the bus stand on temporary basispending construction of pakka building. New bus stand established ontemporary basis was opened on 28.12.2005 by the then Local Ministerand the District Collector. Tenders were invited for construction ofbuilding in the bus stand and many people participated in the Tender.In view of the announcement of the Election date, the tenders werenot opened due to the Notification by the Election Commissioner.(ix) Whileso, the third respondent contrary to G.O.Ms.No.186dated 29.4.2003 has passed a resolution in an emergency meeting on13.6.2006 seeking approval to establish the bus stand at the ErySite for the second time, which was already discarded as statedabove. The first respondent Government has issued G.O.Ms.No.41Revenue (L) Department dated 20.1.1987 prohibiting regularisation ofany encroachment in the Ery, Pond, etc., and directed the authoritiesto remove all the encroachments. As per G.O.Ms.No.186 dated29.4.2003, all the encroachments in the Ery, Odai, Vaikal, etc., weredirected to be removed by the District Collector, and noencroachment on the water bodies/resources should be regularised. Itwas further directed that any future encroachment should also bedealt with sternly. In the said G.O., it was mentioned that anyDistrict Administrative Officer violating the directions will facedisciplinary proceedings. (x) In the rain during October, 2005 there was flooding ofthe Tindivanam Town as the water courses to the Ery were blocked.The resolution No.671 dated 13.6.2006 is in violation of G.O.Ms.No.41dated 20.1.1987, G.O.Ms.No.186 dated 29.4.2003, G.O.Ms.No.136 dated15.9.2005 and the judgment rendered by the Supreme Court reported in2006(2) CTC 71 besides violating the provisions of the Tamil NaduWater (Prevention and Control of Pollution) Act, 1974. Therefore,the resolution No.671 dated 13.6.2006 by the Council of the thirdrespondent has to be declared illegal.(xi) It is also contended that the first respondent shouldendeavour to protect and improve the environment under Articles 48Aand 51A of the Constitution of India. The resolution is contrary to https://hcservices.ecourts.gov.in/hcservices/ Articles 14 and 21 of the Constitution of India. It is the duty ofthe citizen to protect and improve National Environment includingForests, Lakes, Rivers, Wild Life and to have compassion for livingcreatures. Hence, both the writ petitions are filed to declare theresolution No.671 of the 3rd respondent dated 13.6.2006 to establishnew bus stand in the Tindivanam Ery land as illegal, arbitrary andcontrary to Environmental law declared by the Supreme Court andconsequently direct the respondents to implement G.O.Ms.No.136 dated15.9.2006.4. In the counter affidavit dated 21.7.2006 filed by oneK.Kanniappan, the then Commissioner, Tindivanam Municipality, thethird respondent in W.P.No.19388 of 2006, it is stated as follows:-(i) The writ petitioner has an efficacious and alternate remedyas contemplated under Section 36 of the Tamil Nadu DistrictMunicipalities Act, 1920. The Municipal Council can pass resolution,if it is based on majority and the same is subject to acceptance ofthe government. It is for the government to consider the case onmerits and to issue appropriate orders. (emphasis supplied). Afterthe Ery and thoppu land was alienated to the municipality on14.1.2003, the third respondent has taken effective steps forconstruction of new bus stand. The third respondent never remainedinactive. The total extent of the Ery is 28.91 acres. An extent of5 acres on the higher level, where there is no water stagnation asper the report of the District Collector was alienated forestablishing the bus stand. It is not correct to say that the publicwas opposing the alienation of the land for bus stand. TheGovernment has clearly indicated in the G.O.Ms.No.101 RevenueDepartment dated 5.3.2001 that no objection was received from thepublic with regard to the land alienation. The rain wateraccumulation will not at all be affected inasmuch as 23.91 acres ofland, which is the actual catchments area, is still available asEry. The southern side of the Ery remains a well-developed area andit not spoiled. On the northern side of the Ery, there is the MicroWave Station of the BSNL. On the eastern side, there is theNational Highways Road. On the western side, there is railway line.This Ery still remains unpolluted with these developments. If busstand comes there, there is no scope for further development aroundit and the Ery will not at all be affected on any account. There isno question of decimating the water body and there will be no damageto the ecological balance. The petitioner has not so far raised anyobjection with the Municipal authorities. There is no objection fromthe public either to the municipality or to the Revenue authoritiesor to the Pollution Control authorities. (ii) The Writ Petition Nos.32320 of 2004 and 7563 of 2005challenging the resolution No.458 dated 30.9.2004 of third respondentMunicipality to establish the bus stand in Wakf Board's land were https://hcservices.ecourts.gov.in/hcservices/ dismissed by this Court on 1.12.2004 and 12.4.2005 respectively, onthe ground that the petitioners were having efficacious alternativeremedy of appeal under Section 36 of the Tamil Nadu DistrictMunicipalities Act, 1920. The same will hold good to the presentcase also.(iii) It is not correct to say that taking note of the factthat no activity had been carried out till date in the Ery site toestablish the new bus stand, the government discarded the Ery siteand accepted the proposal to establish the new bus stand in the landbelonging to the Wakf Board. (iv) In G.O.Ms.No.136 dated 15.9.2005, orders were issuedgranting permission to the Tindivanam Municipality to take over 6acres of land out of 24.04 acres in Survey No.202 of Gidangalvillage, Tindivanam town from Tamil Nadu Wakf Board on lease basisfor construction of a bus stand. The government have not so far cometo a conclusion that the land already alienated to the municipalitywas not suitable for bus stand. If the municipality had been silentwithout any activity after alienation of land, the government wouldhave taken back the same from the municipality on the ground that themunicipality was not interested in the same. The council wasactually interested in getting the bus stand at the alienated siteand efforts were going on. The second respondent in his letter dated25.2.2005 enclosing copy of letter dated 22.2.2005 from the Secretaryto Government in Municipal Administration and Water Supply Departmentinformed that the government had no objection, if the TindivanamMunicipality wished to change the site of bus stand based on thepractical issue and the government further informed that themunicipality can proceed further in the matter after obtaining thewillingness of the Wakf Board for the proposed acquisition andrequested the third respondent to take suitable action and sendproposal to alienate the Wakf Board land for the project. Thegovernment has not indicated that the alienated land was not suitablefor bus stand. (v) While issuing orders in G.O.Ms.No.101 dated 5.3.2001, thegovernment had indicated in clear terms that the ban on alienation ofwater bodies was exempted in this issue. The government did notreconsider this so far. The government always have the power toconsider any issue based on merits and issue appropriate orders.After issue of G.O.Ms.No.186 dated 29.4.2003, the government issuedanother G.O.Ms.No.41 dated 30.1.2004 alienating 6.10 acres of ChinnaEry land in favour of Krishnagiri Municipality for the constructionof bus stand. (vi) As per Section 36 of the Tamil Nadu DistrictMunicipalities Act, 1920, the government have power to suspend orcancel any resolutions under the Act. So, if the petitioner is https://hcservices.ecourts.gov.in/hcservices/ aggrieved by the resolution passed by the municipal council on13.6.2006, he has got adequate opportunity to represent the matter tothe District Collector, the Regional Director of MunicipalAdministration, the Commissioner of Municipal Administration and theGovernment and get his grievance redressed. (vii) The resolution passed by the Municipal Council on13.6.2006 is not in violation of the G.O.Ms.No.186 dated 29.4.2003.The earlier order passed by this Court in the writ petitions filedduring the years 2004 and 2005 as stated above questioning the otherresolution passed by the same municipal council will hold good forthis writ petition also. Therefore, the third respondent praysdismissal of the writ petition.(viii) No counter was filed by the respondents in W.P.No.7243 of2007.5. In the additional common counter-affidavit dated 13.11.2008,filed by one Mr.N.Ravichandran, the present Commissioner,Tindivanam Municipality, the third respondent in W.P.Nos.19388 of2006 and 7243 and 2007, it is stated as follows:-(i) The relief claimed in the writ petition is for redressel ofprivate and political dispute and not in public interest. It isincorrect to state that the Municipality has passed a resolution inthe emergency meeting held on 13.6.2006 to establish a new bus standin the Tindivanam Ery land. All procedures have been scrupulouslyfollowed for purchase of the land. After inspection, the DistrictCollector vide his letter dated 6.11.1991 had stated that theexisting bus stand is not sufficient to cope-up with the vehiculartraffic and the same has to be relocated from its existing place forthe following two reasons, viz.,(a) the place has become highly congested and(b) the road from NH 45 is very narrow and precarious. On 14.11.1991, the Municipality had sent a requisition to theDistrict Collector for the alienation of the land for the purpose ofrelocating bus stand. On 27.11.1991, in Resolution No.400 ofTindivanam Municipal Council sought alienation of land and permissionto enter upon the Ery land. (ii) On 20.10.1994, the Municipal Commissioner sent a proposalto the District Collector, Villupuram for getting a suitable land tolocate the new bus stand. On 29.3.1995, the District RevenueOfficer, Villupuram sent to a letter to the Municipality suggestingacquiring some other sites so as to avoid selection of water bodiesfor development work. On 7.3.1997 by resolution No.612, theTindivanam Municipal Council reiterated its stand on the selection of https://hcservices.ecourts.gov.in/hcservices/ Tindivanam Ery and stated that there is no other suitable landavailable within the town for the construction of bus stand and thesame was communicated to the District Revenue Officer, vide letterdated 12.3.1997. Thereafter, A1 notice (under R.S.O.No.24) wasissued on 13.8.1997 calling for objections within 15 days from thedate of publication. Due publication was caused and informed in thelocality by the beating of Tom Tom.(iii) On 16.9.1997, the Tahsildar, Tindivanam, inspected thesite along with Revenue Inspector and Village AdministrativeOfficer and sent a proposal to the District Revenue Officer on9.10.1997. The notes of inspection were sent to the AssistantCollector, Tindivanam on 24.10.1997. On 12.2.1998, the Tahsildarrequested the Council for forwarding the proposals. On 5.10.1998 theCommissioner sent the proposal and the consent to acquire 5 Acres ofEry Poromboke and 1 acre of Thoppu Poromboke to Tahsildar,Tindivanam. On 9.4.1999 the inspection notes of the RevenueDivisional Officer was sent stating that the land under reference wasnot low lying and the entire ayacut lands are being converted tohousing sites and hence can be alienated. On 8.11.1999, theRevenue Divisional Officer after inspection sent his report in letterNo.A3/127/98 to the District Collector, Villupuram about thesuitability of the site. On 12.11.1999, the technical opinion forthe construction of the bus stand from the Commissioner, PanchayatUnion, Marakkanam was received and on the same day a resolution waspassed in Resolution No.215 to the effect that the land is suited forthe formation of the bus stand. After inspection, the then DistrictCollector, Villupuram and the District Revenue Officer expressedtheir satisfaction on the formation of the bus stand in the proposedsite. No objection was received from anyone regarding the proposedbus stand. (iv) The District Collector, by his letter dated 10.1.2000addressed to the Secretary, expressed the suitability of the Ery siteand requested the government for exemption from the ban order. On5.3.2001, G.O.Ms.No.101 was issued by the Revenue Departmentalienating the land and also granting exemption from the ban orders.On 18.11.2002, the Municipal Commissioner sent a cheque for a sum ofRs.12,80,849/- to the Tahsildar. On 29.11.2002, by resolutionNo.556, the Municipal Council resolved to construct the proposed busstand at the cost of Rs.5 crores. The lands were taken possession bythe Tindivanam Municipality on 14.1.2003. As requested, the SubCollector, Motor Vehicles Inspector and Commissioner, TindivanamMunicipality inspected the site and sent a joint report on 25.4.2003,about the suitability of land for the construction of the proposedbus stand and emphasized the urgency and the dire need of it to thetown. On 12.6.2003, the District Collector, sent hisrecommendations to the Commissioner of Municipal Administration. On15.10.2003, the Commissioner of the Municipal Administration sought https://hcservices.ecourts.gov.in/hcservices/ for a meeting with the Municipal Commissioner for the finalisation ofthe design of the proposed bus stand. On 25.8.2004, the tenderdocuments were approved by the Commissioner of MunicipalAdministration.(v) On 30.9.2004, by Resolution No.444, the Municipalityresolved to construct the bus stand on the land belonging to the WakfBoard. The same as challenged by way of W.P.No.32320 of 2004. Thesaid W.P.No.32320 of 2004 was dismissed on 1.12.2004. By virtue ofResolution No.59, the Municipality fixed a deadline of one month todecide as to whether to construct the bus stand either on the WakfBoard land or at the lands already purchased by it. On 25.2.2005,the Commissioner of Municipal Administration gave consent andexpressed no objection to Municipality for the construction of thebus stand on the Wakf Board Land. On 2.3.2005, the MunicipalCommissioner sought willingness of Wakf Board and on 3.8.2005, theWakf Board stated its terms and conditions for leasing out its landfor a period of 75 years. By G.O.Ms.No.136 (MAWS) dated 15.9.2005,the Government permitted the Municipality to take 6 acres of WakfBoard land on lease and permitted the Municipality to pay the leaserent of Rs.60,000/- per month and an advance amount of Rs.6,00,000/-.The lease deed was executed on 22.12.2005, in favour of the WakfBoard and an advance of Rs.6,00,000/- was paid. Temporary bus standwas inaugurated on 28.12.2005. G.O.Ms.No.19 (MAWS) dated 17.2.2006accorded sanction for the construction of the bus stand at the costof Rs.522 lakhs. Tender Notification was issued and the tenderdocuments were received. They were not processed because of thenotification of General Election to Tamilnadu State Assembly 2006.On 13.6.2006, impugned resolution No.671 was passed, by the newlyelected Committee Members requesting the government to pass suitableorders for the construction of the bus stand at the Ery site. Underthese circumstances, the present writ petition came to be filed.(emphasis supplied).6. Pending Writ Petitions, this Court directed the respondentsto file a report. The third respondent in its common additionalcounter dated 13.11.2008, has filed its report from paragraph 11onwards, which reads as follows:-"11. Pending Writ Petitions, as per the directions ofthis Hon'ble Court, the District Collector formed acommittee consisting of District Revenue Officer,Villupuram District, R.D.O. Tindivanam and with theofficials of Revenue and Tindivanam Municipality, foridentification of suitable alternate sites for locating thenew bus stand. The inspection was conducted by the aboveofficials on 21.09.2008 and 22.09.2008.12. As per the inspection report, the total extent of https://hcservices.ecourts.gov.in/hcservices/ land comprised in Tindivanam Municipality is 22.33 sq. km.of this area the water course areas like lake, pond andother catchments area measures an area of 4.25 sq. km. Inthe remaining 18.08 sq. km, an extent of 11.89 sq. km. ofland lying on the western side of the Railway line and thebalance 6.19 sq. km. of land is lying on the eastern sideof the Railway line.13. Even though 3 sites of Government lands measuringmore than 5 acres are available on the western side of theRailway line, were inspected for the purpose ofconstruction of Bus Stand, those lands may not be feasiblefor the following reasons viz., "1) The distance between the main road (NH 45) tothe said sites is around 4 to 5 kms. 2) The approach road has to be laid amidst thicklypopulated/residential area.3) The approach road to the said site has to beformed by the way of land acquisition proceedingswhich in turn may cause enormous time delay andexpenses.4) Further, the time taken to get the approval fromRailways for the construction of Railway overbridge or subway would be enormous.5) The public would be put to hardship andinconvenience, the time and cost taken to go tobus stand would be more than the travelling costof reaching Tindivanam." 14. An extent of 6.19 sq.km. (1538.94 acres) lying onthe eastern side of the railway line was divided into 3zones for the purpose of inspection. They are1) The land situated between the railway line and the NH45.2) The land situated between NH 45 and the Bye-Pass.3) The land situated between the Bye-Pass and the outerMunicipal Limits.15. The lands belonging to the government measuringmore than 5.00 acre are available in the above 3 zonesare:- https://hcservices.ecourts.gov.in/hcservices/ 1) Tindivanam Ery (28 Acres)2) Kaveripakkam Ery (77 Acres)3) Odai comprised in i) Survey No.83/3 at an extent of 5.09 acres, ii) Survey No.125 at an extent of 7.68 acres, iii) Survey No.133/1 at an extent of 9.69 acres, iv) Survey No.138/4 at an extent of 7.18 acres.16. Of this, the Sl.No.3 is an Odai measuring morethan 5.00 acres. The said Odai now serves as an outletchannel for Gidangal Ery, and hence, not considered. Theother two sites are Tindivanam Ery and Kaveripakkam Ery.Among these two Erys, Kaveripakkam Ery is not selectedbecause it is a PWD Tank, which stores water throughout theyear. The Tindivanam Ery measures about 28.01 acres. TheTindivanam Ery is rain fed, minor irrigation Tank and is anon system tank, it has no water source other than run-offwater. This tank is located adjacent to NH 45 and there isone acre Thoppu Poromboke which is also available. Thefive acres of Tindivanam Ery and one Acre of ThoppuPoromboke are contiguously situated and they are situatedin an elevated position. Under normal circumstances, only30 to 50% of Ery would be filled up. The total ayacut areais 46.38 acres. Out of these 46.38 acres, only 7.36 acreswere under cultivation from the year 2002 onwards. Eventhese ayakkatars were not dependent on the tank water andthey are predominantly using lift irrigation. For the past20 years, their cropping pattern has not been changed frompaddy cultivation. The sluice of this Ery has becomedefunct. The remaining ayacut areas are either remainingwaste or being converted into house sites. There is noobjection from the ayakkatars for the construction of thebus stand in the Ery site. Hence, the said site was foundto be best suited for the construction of the bus stand. 17. With regards to the Patta lands that are measuringmore than 5.00 acres situated between the Railway line andNH 45 are:-i) Survey No.106/2 at an extent of 6.45acres (Land Owner Mr.Chandrasekaran) ii) Survey No.107/3 at an extent of 5.60acres (Land Owner Mr.Ranganathan & Families), https://hcservices.ecourts.gov.in/hcservices/ iii) Survey No.109/2 an an extent of 6.26acres (Land Owner Mr.Sagadevan),iv) Survey No.110/3A at an extent of 5.84acres (Land Owner Mr.Sundaramoorthy),v) Survey No.175/1 at an extent of 7.30acres (Land Owner Mr.Ramachandran),vi) Survey No.176/1 at an extent of 5.11acres (Land Owner Mr.Gopal).(II) The patta lands that are measuring more than 5.00acres situated between NH 45 and newly opened Bye-Passare:-i) Lands belonging to Roman CatholicSociety, in Survey No.242/1A at an extent of15.86 acres.ii) Lands belonging to Wakf Board in SurveyNo.202 at an extent of 22.00 acre.iii) Survey No.89/1A1 at an extent of 5.95acres (Land Owner Mr.Anbunayaga Eswaraswamy).(III) The Patta lands that are measuring more than5.00 acres situated between the newly opened bye-pass andMunicipal Limit:-i) Survey No.10/3A1 at an extent of 5.05acres (Land Owner Mr.Govindasamy)ii) Survey No.17/2A1 at an extent of 7.57acres (Land Owner Mr.Gopal & Families)iii) Survey No.141 at an extent of 11.08acres (Land Owner Mr.T.A.S.Palani)iv) Survey No.151/1 at an extent of 5.29acres (Land Owner Mr.Madava Chetty & Families)18. Out of these 13 sites, most of the land owners arenot willing to part with their lands for the formation ofbus stand. Most of the aforesaid sites are alreadyconverted or under the process of formation of residentialplots. Till date, there are no proper approach roadsavailable to most of the sites. Hence, land acquisitionproceedings have to be initiated for the formation of the https://hcservices.ecourts.gov.in/hcservices/ approach road and bus stand, which would cause enormoustime delay. In view of the prevailing market value andguideline values of the properties, the cost of landacquisition may over ride the cost of the bus standproject. Hence, those lands were not considered. 19. It is submitted that by the construction of theBus stand at Tindivaman Ery, it would not affect the waterstorage capacity of the Tank and would also not affect therecharging of the ground water. The annual rainfallaccount for the past 20 years in Tindivanam Municipalitylimit is shown as detailed below:-YearRainfall in mmYearRainfall in mm19886661998160919899521999956199911772000147719911155200112021992714200257619938862003752199488520041091199549220051077199613672006942199713732007108520. The total extent of Tindivanam Ery is 28.01 acre.The water source to this Ery is only rainwater. For thepast 20 years, this Ery did not receive its full capacityof water only except during the year 1998. The total waterstorage capacity of this Ery is 0.10 Million cubic metre.When the elevated portion of 5.00 acre is being used forthe Bus Stand, the possibility of reduction of waterstorage capacity is around 7600 cubic meter. The saidquantum of water if distributed to the remaining 23.01acres, the water level of the entire Ery would be increasedby 8 cm only. This is based on the Inspection report andtechnical opinion of the Executive Engineer, PWD/WRO, LowerPennaiyar Basin Division, Villupuram. Further, he hadopined that by transferring lands to proposed bus stand,the capacity of the tank would not be affected. Theaverage annual rainfall of Tindivaman Taluk 1021.70 mm,from the available records the Tindivanam Ery filled onlyduring the year 1988 (this may be 1998), when the annualrainfall was 1609 mm. Therefore, it is inferred that by https://hcservices.ecourts.gov.in/hcservices/ alienating 5 acres of lands to the proposed bus stand, thewater storage capacity would not in any way be affected.Further, the water from this Ery was never used for thedrinking purposes of Tindivanam Town. Therefore, theaverments and allegations that the dissipation of groundwater table and depilation of water sources are false. 21. The existing Municipal Bus stand was establishedin the year 1969 with an extent of 1.02 acre, with 10 busbays, in the centre of the Tindivanam Town. Actually theNH 45 which passes adjacent to that bus stand is verynarrow. As the population of the town and the vehicularpopulation had quadrupled since then, the present bus standhad outlived its utility and even as early as 1991, it wasfound to be insufficient. The construction of the flyover opposite to the existing bus stand, results in trafficcongestion to local public and to the passengers. Hence,the Municipalities identified the Ery site, which islocated at the North East corner of the Municipal limit.It is pertinent to state that Tindivaman is one of themajor junction point for the vehicles coming from and toChennai, Puducherry, Thiruvannamalai, Vandavasi,Kanchipurm, Vellore, Trichy and from down south ofTamilnadu. The strategic location of the proposed Ery sitemakes the Tindivaman Town free from vehicular congestion,for the following reasons.22. Since the formation of the New Bye Pass road, notall the Vehicles plying from Chennai, Puducherry, Trichyand Thiruvannamalai need to enter the Tindivanam town. 23. The distance between old bus stand and theproposed bus stand is only 700 meters. Hence, it mustwelcome decision from public point of view.24. The petitioner also stated about the utilisationof Wakf Board lands for Construction of New Bus Stand. Thesaid Wakf Board lands located on the eastern side of the NH45 and 500 metres away from the existing Bus stand, andlocated amidst Residential and Industrial are. More over,the Wakf Board had already given the said land for lease to22 persons. Among them, 10 persons approached this Hon'bleCourt against Wakf Board Decision to lease out the lands toMunicipality. 25. The litigations are still pending before thisHon'ble Court. Moreover if the Wakf Board lands areselected, all the buses should enter into the Town. Sincethe bye pass branches out from NH 45 at the southern side https://hcservices.ecourts.gov.in/hcservices/ of the town, just about 1.25 km away from the Wakf Boardland hence the problem of traffic congestion will not bereduced. Considering these two points, the Wakf Board landwas found not suitable. 26. With regard to the averments of the petitionerthat destruction of the Ery would lead to ground waterdepletion, flooding of town area and cause pollution. Itis submitted that the above averments are baseless andimaginary. Out of the total extent of 28.01 acre, theproposed bus stand will occupy only 5 acre of the Eryportion. 27. There will be no damages/destruction of bunds orto any existing structure. Hence, the question ofdemolition of the tank and flooding of Tindivanam Town isbaseless. There are 3 PWD tanks and 3 minor irrigationtanks which are still alive and maintained by therespective departments. Hence, the question of depletionof ground water table does not rise (this word may bearise). 28. The details of the tanks are as follows:-Sl.No.Name of the TankMaintainedbyTotalExtent(inacres)Ayacutarea(inacresDistancefromTindivanamEry1GidangalPWD561.86975.51 Km2KavErypakkamPWD77.3132.38500 meters3AvarapakkamPWD57.9119.485 Km4Roshanai PEryyaEryPU67.5479.223 Km5Murungapakkam EryPU37.546.582 Km6Chettithangal EryPU38.631.615 Km29. Moreover, it is submitted that the Government ofTamil Nadu undertakes renovation of minor irrigation andrestoration of Small Water Bodies under National RuralEmployment Guarantee Programme.30. It is submitted that the Municipal Administrationwill follow all the direction issued by the TamilnaduPollution Control Board while constructing the New BusStand. https://hcservices.ecourts.gov.in/hcservices/

31. It is submitted, that there is no violation ofstate responsibility, since the construction of bus standis not a threat to pollution. The Tindivanam Ery is not aNotified Biosphere range of ecological sensitive area fromenvironmental point of view. The principle of Stateresponsibility revolves around the concept of sustainabledevelopment that satisfies the need of the present,without compromising the ability of the future generation.In order to achieve a rational management of resources andto improve the environment, the State should adopt anintegrated and co-ordinated approach. Their developmentis compatible to the need to protect and improveenvironment with that of population. Knowing the valueattached to the importance of environment protection, theMunicipality took a balanced approach by planning for theimprovement of the town and its people on one hand withenvironment consideration on the other. TheMunicipalities owes a duty to provide better motorableroads, free from traffic congestion/bottlenecks and cleanand safer roads to its residents. When considering theduty to maintain, support and protect the ecologicalbalance and environment, the Municipality has resolveditself to take adequate measures to maintain the groundwater level of that area in addition to the provision ofadequate water supply. 32. It is equally true that the Municipality would notinitiate any development at the cost of environmentaldegradation, destruction or violation. At the same timethose aspects should not hamper the developmentalactivities of the Municipality. Therefore, the sole aimof the Municipality is to balance the economic and socialneeds with that of environment considerations, neithercould be sacrificed at the alter of other. The need andnecessity for the new bus stand was severely felt as earlyas 1991. Due to the non construction of the bus stand,the passengers and local public were put to severehardship and inconvenience. The Municipality is not evenin a position to provide basic amenities like rest rooms,toilets, and cloak room to the passengers travellingthrough Tindivanam Town. For want of adequate bus standmost of the buses stop at NH 45 to disembark and boardthe passengers. Due to this, the passengers are putsevere hardship. Consequently, the Municipality is not ina position to augment its income. The provision of busstand with modern facilities is long felt and at present,dire need of the town and its residents. The convenienceto the general public would be enhanced by theestablishment of the bus stand at the proposed site. https://hcservices.ecourts.gov.in/hcservices/

33. With regard to road safety and prevention ofaccidents, it is submitted that the Municipality in co-ordination with NHAI and State Highways has proposed toconstruct high mast lights in the junction and to widenthe roads from the starting point of the bye pass upto theproposed bus stand and from proposed bus stand to theTindivanam town. It is also seriously contemplating onthe installation of signals and speed brakes at thevantage locations so as to avoid accidents. Since, theopening of the Tindivanam bye pass, the traffic withinthe town of Tindivanam has substantially reduced. This inturn, led to the reduction of movement of traffic withinthe town of Tindivanam. The proposed bus stand issituated very near to the bye pass, thereby the entry ofbuses in the proposed bus stand may not cause any problemor traffic hindrance and chances of occurrence ofaccidents will be considerably reduced. It would bepertinent to mention here the strategic location of theproposed bus stand would serve the local public andcommuters, in such a way that all the buses plying fromall the directions need not enter the Tindivanam Town andthereby causing bottlenecks.Therefore, it is humbly prayed that this Hon'ble Courtmay be pleased to dismiss the above writ petition and thusrender justice."7. No counter was filed by the respondents 1 and 2 in both writpetitions.8. M.P.No.1 of 2006 in W.P.No.19388 of 2006:- This petition isfiled by Mr.S.Venkatesan, praying to grant an interim injunctionrestraining the respondents from in any manner proceeding further onthe resolution dated 13.6.2006 passed by the third respondent in itsemergency meeting held on 13.6.2006 pending disposal of the writpetition.9. M.P.No.1 of 2007 in W.P.No.7243 of 2007:- This petition isfiled by Mr.K.V.N.Venkatesan, praying to grant an interim injunctionrestraining the respondents from in any manner proceeding further onthe resolution dated 13.6.2006 passed by the third respondent in itsemergency meeting held on 13.6.2006 pending disposal of the writpetition.10. M.P.No.2 of 2006 in W.P.No.19388 of 2006:- Petitionersseek to implead themselves as party respondents stating that they arecouncilors of the Municipality. They opposed the establishment ofbus stand at the Wakf Board's land stating that it will cause https://hcservices.ecourts.gov.in/hcservices/ recurring loss to the municipality and the need of the municipalityand the public will be best served by putting up the bus stand in theEry land owned by the Municipality. 11. M.P.No.1 of 2008 in W.P.No.19388 of 2006 and M.P.No.1 of2008 in W.P.No.7243 of 2007:- Both the miscellaneous petitions are filed by one A.MoovarkuMudalvan to implead him as respondent in both the writ petitions.Petitioner claims to be a resident from the same locality andsupports the stand of the Municipality for establishing the bus standat the Ery land.12. The two writ petitions have been filed in public interest.This Court gave its anxious consideration to the contention made bylearned counsel appearing for the writ petitioners and therespondents as well as the counsel appearing for the impleadingparties. 13. Learned counsel appearing for the petitioners Miss Vaigaisubmitted that it is the duty of the Municipality and the State toprotect the water bodies from all sorts of encroachment. TheGovernment has in G.O.Ms.No.41 dated 20.1.1987 and in the subsequentG.O.Ms.No.186 dated 29.4.2003 made it clear that there should be noencroachment in the Ery, pond or any water bodies and allotmentshould not be regularised. The proposed bus stand at Tindivanam Eryis opposed to the G.Os. referred to above and also the decision ofthe Madras High Court and the Apex Court, where it has been clearlyheld that it is the duty of the Government to protect the waterbodies, Ery, Pond, etc. She referred to the following decisions:-(a) Anti Corruption Movement – vs. - Government of Tamil Nadureported in (2008)1 MLJ 417, wherein the First Bench of this Court inpara 7 held as follows:-"7. Having considered the difficulties expressed bythe learned Government Pleader in carrying out the processof removal of encroachments, we pass the following order:(i) The Secretaries, Public Works Department,in consultation with the respective DistrictCollectors, are directed to decide the programme ofevicting the encroachments in the water bodiesfalling in Categories 'A' and 'B' referred toabove, by the end of November, 2007 and completethe process of removal of such encroachments by theend of May, 2008.(ii) The State Government is at liberty to https://hcservices.ecourts.gov.in/hcservices/ consider, in appropriate cases, grant ofalternative sites for re-location of theencroachers, as per their policy decision. All theauthorities concerned like the local authoritiesas well as the police officials, will extend theirfull cooperation to the Public WorksDepartment/District Collectors for effectivelyimplementing the policy decision of the Governmentof removal of encroachments from water bodies.(iii) No Civil Court shall entertain any suitor proceeding in connection with the removal of theencroachments in the water bodies and everyperson, who has put up any construction in suchwater bodies and who is aggrieved by the actiontaken by the authorities of removal of suchencroachment from the water bodies, is at libertyto move this Court under Article 226 of theConstitution of India and all such applicationsshall be placed before the First Bench of thisCourt.(iv) The State Government is directed toidentify and take stern action against the landgrabbers who have sold the lands in the waterbodies to innocent purchasers, which would act as adeterrent. The survey numbers of the lands invarious water bodies in question are directed to benotified and the Registration Department concernedis directed not to register any transaction inrespect of such lands falling under the waterbodies.(v) In respect of the Porur tank, therespondents have already removed all theencroachments and the said water body is free ofany encroachment. In case any encroachment is madeon the water body in future, it will be open forthe authorities to remove such encroachment evenwithout, issuing any notice to such encroachers.(vi) It is also made clear that even after theencroachments from the water bodies are removed asper 'the policy decision of the State Government,the respective District Collectors shall keep aclose watch over such water bodies and in case ofany fresh encroachment thereon, the DistrictCollectors are at liberty to remove the same withthe help of police, wherever necessary, without any https://hcservices.ecourts.gov.in/hcservices/ notice, to such encroachers."(b) In Hinch Lal Tiwari – vs. - Kamala Devi and others reportedin (2001)6 Supreme Court Cases 496, the Apex Court held that even ifthe part of the pond has become dry after the passage of time and isfilled up, it does not lose its character as an pond and therefore,the alienation by the Government cannot be justified. In the saiddecision, the authorities allotted certain plots in favour ofcertain persons which were cancelled by the authorities and they werechallenged before the court. Based on the reports of the authoritiesand subsequent report submitted to the High Court, the Apex Courtheld that even if part of the pond became levelled due to passage oftime and the balance retained, the dry portion of the pond shouldnot have been converted as house sites. The Supreme Court clearlyheld that the pond exists and the area covered by it varies duringrainy season, no part of it could have been allotted to anybody forconstruction of any building or any allied purpose.(c) Learned counsel for the petitioner also relied upon thedecision of the First Bench of this Court in Krishnan.L. – vs. -State of Tamil Nadu reported in 2005(4)CTC 1. It is the casedecided based on the writ petition filed in public interest to removeencroachments in Odai Poramboke. In the said decision rendered on27.6.2005, the First Bench of this Court held in paragraph 6 asfollows:- "6. It is also relevant to state that day inand day out, many such petitions are being filedby way of 'public interest litigation' allegingencroachments into ponds/tanks/lake/OdaiPorambokes, etc., in different parts of thisState, more particularly in villages. Havingregard to the acute water scarcity prevailing inthe State of Tamil Nadu as a whole, we feel that atime has come where the State has to take somedefinite measures to restore the already earmarked water storage tanks, ponds and lakes, asdisclosed in the revenue records to its originalstatus as part of its rain water harvestingscheme. We also take judicial notice of theaction initiated by the State Government byimplementing the water harvesting scheme as a timebound programme in order to ensure that thefrequent acute water scarcity prevailing in thisState is solved as a long time measure. In fact,the classification as Ooranis, Odais and Lakes inthe revenue records are all areas identified inthe villages where the rain water gets storedenabling the local villagers to use the same for https://hcservices.ecourts.gov.in/hcservices/ various purposes throughout the year inasmuch asmost parts of the State are solely dependent onseasonal rains both for agricultural operations aswell as for other requirements. Therefore, it isimperative that such natural resources providingfor water storage facilities are maintained by theState Government by taking all possible steps bothby taking preventive measures as well as byremoval of unlawful encroachments."In para 14 a general direction was issued by this court and it readsas follows:-"14. Therefore, we direct the respondents 1 to5 to take necessary legal steps to remove thealleged encroachments made by the respondents 6 to12 as well as the petitioner over Odai Poramboke inIyan Punjai Survey No.100/1 at No.247, Tatchurvillage, Kallakurichi Taluk, Villupuram Districtmeasuring 5 acres and 70 cents. Inasmuch as thiswrit petition has come before us by way of a publicinterest litigation, we take this opportunity todirect the State government to identify all suchnatural water resources in different parts of theState and wherever illegal encroachments are found,initiate appropriate steps in accordance with therelevant provisions of law for restoring suchnatural water storage resources which have beenclassified as such in the revenue records to itsoriginal position so that the suffering of thepeople of the State due to water shortage isameliorated."14. Learned counsel for the petitioner further pointed out thatsubsequently in the year 2007 with effect from 1.10.2007, the TamilNadu Government has enacted a law for protection of tanks and waterbodies and for eviction of encroachments, viz., Tamil Nadu Protectionof Tanks and Eviction of Encroachment Act, 2007 (Act No.8 of 2007).It is stated that in view of changed circumstances, subsequent eventsand passing of the specific law for protection of tanks, whichincludes the Tindivanam Ery in this case, the Tindivanam Ery landcannot be utilised for putting up the bus stand. 15. Learned counsel for the petitioner also relied upon thedecision of the Apex Court in Susetha – vs. - State of Tamil Nadu andothers reported in (2006)6 Supreme Court Cases 543, to support theplea that Ery land should not be converted to bus stand. The ApexCourt held in paragraphs 14, 17, 18 and 19 as follows:- https://hcservices.ecourts.gov.in/hcservices/ "14. Concededly, the water bodies are requiredto be retained. Such requirement is envisaged notonly in view of the fact that the right to water asalso quality life are envisaged under Article 21 ofthe Constitution of India, but also in view of thefact that the same has been recognised in Articles47 and 48-A of the Constitution of India. Article51-A of the Constitution of India furthermore makesa fundamental duty of every citizen to protect andimprove the natural environment including forests,lakes, rivers and wildlife. (See Animal andEnvironment Legal Defence Fund v. Union of India,M.C. Mehta (Badkhal and Surajkund Lakes Matter) V.Union of India and Intellectuals Forum v. State ofA.P.)""17. We may, however, notice that whereasnatural water storage resources are not onlyrequired to be protected but also steps arerequired to be taken for restoring the same if ithas fallen in disuse. The same principle, in ouropinion, cannot be applied in relation toartificial tanks.""18. In L.Krishnan the Division Bench of theMadras High Court had been dealing with the naturalresources providing for water storage facility andin that view of the matter the State was directedto take all possible steps both preventive as alsoremoval of unlawful encroachments so as to maintainthe ecological balance.""19. The matter has also been considered insome detail by this Court in Intellectuals Forumwherein again while dealing with natural resources,it was opined:(SCC p. 575, para 76)"This is an articulation of thedoctrine from the angle of the affirmativeduties of the State with regard to publictrust. Formulated from a negatory angle,the doctrine does not exactly prohibit thealienation of the property held as apublic trust. However, when the Stateholds a resource that is freely availablefor the use of the public, it providesfor a high degree of judicial scrutiny onany action of the Government, no matterhow consistent with the existing https://hcservices.ecourts.gov.in/hcservices/ legislations, that attempts to restrictsuch free use. To properly scrutinisesuch actions of the Government, the courtsmust make a distinction between theGovernment's general obligation to act forthe public benefit, and the special, moredemanding obligation which it may have asa trustee of certain public resources." (emphasis supplied)She submitted that the petitioners are agitating only over the use ofEry land for the purpose of putting up of bus stand. She submittedthat earlier, the Government taken a decision to put up a bus standat the Wakf Board's land in G.O.Ms.No.136 dated 15.9.2005 andsubstantial amounts has also been released and paid. Temporary busstand was also established in the Wakf Board's land. Since theearlier G.O.Ms.No.101 dated 5.3.2001 was given a go-bye and a newG.O.Ms.No.136 dated 15.9.2005 has been passed, based on theresolution and requirement of the Municipality, the Ery land needs tobe protected and the bus stand can be established in the Wakf Board'sland. The need of the public is for a bus stand due to congestionof the old bus stand. If the bus stand is located in the WakfBoard's land it will be better served the public cause. She alsoreferred to the recommendations of the various authorities like,Tahsildar, Revenue Divisional Officer which have already beenreferred to earlier and stated that the authorities have at one pointof time stated that the Ery land should not be utilised for puttingup of the bus stand. She states that the Government is bound toprotect the natural resources, like Ery, keeping in mind the Article48A of the Constitution.16. Learned Advocate General Thiru G.Masilamani appearing forthe third respondent Municipality stated that the Government hasconsidered the issue in depth and several officers of the RevenueDepartment upto the level of Collector have inspected several sitesin an around the Tindivanam Municipality and after much deliberationhave come to conclusion that a portion of the Tindivanam Ery landadjacent to the Highway which has levelled itself due to passage oftime is the most appropriate place for locating bus stand. Hepointed out the details contained in the inspection report filedpending the writ petitions as additional common counter-affidavit.The same has been extracted earlier. He impressed upon the Courtthat after taking away 5 acres of Ery land, the balance Ery will bedeepened and the water level will increase. The water storagewill not reduce and the need of the ayakatdhars will also be takencare of. The apprehension of flooding also will not be there. Hefurther submitted that suitable steps will be taken to protect thebalance Ery land and its environment from any misuse or abuse.Learned Advocate General impressed upon the court the need of the https://hcservices.ecourts.gov.in/hcservices/ public of the Tindivanam for a proper bus stand. Due to increase inpopulation there is a competing demand of the public of theTindivanam Municipality for an appropriate bus stand. It does notmean that the water bodies can be totally utilised depriving thewater source. Both needs have to be taken into consideration whiledeciding the issue. In the report, the learned Advocate General alsopointed out that there are other big Erys around the Municipalitywhich are untouched and sufficient water is available. Therefore,the apprehension that by taking away the 5 acres of the Ery land fromTindivanam Ery, it will cause loss of water table, flooding, loss ofwater to ayacutdhars, besides, environmental disaster is baseless.17. The court is aware of the need of the public for a new busstand, in view of the congestion of the old bus stand which islocated inside the municipal town. The court is also aware of theneed to protect the water bodies, particularly, Erys, Ponds, Lakes,etc. In a book, by name, The Ery Systems of South India authored byT.M.Mukundan, an Ery is described as follows:-"An ery (Fig.1) or tank is a reservoir ofwater contained behind earthen bunds orembankments. Here the bund surrounds the water onthree sides. The fourth side is open to thecatchment from which water flows down to collect inthe ery. Normally the middle of the bund is thedeepest portion of the ery and the depth decreasesas we go away from the middle of the bund to thesides or flanks of the bund."According to the author, the main function of the Ery is forirrigation of field for cultivation, viz., the ayakat lands of theEry. The water flow is regulated by sluice. The Ery also as anarrangement for overflow of water. He also states that the Erys arenormally inter-connected where excess water will goes from one Eryto another Ery. The classification of Ery is as follows:- "Erys which are fed by channels diverted fromrivers are known as "System erys" or riverfed erys.Erys which have their own catchment are called "Non-system erys or rainfed erys." In the present case, the Tindivanam Ery appears to be a rainfed Eryas can be seen from the topography. The author has traced thehistory of the Ery System under the pre-British India, then under theBritish System and the Decay of Ery Irrigation System due to passageof time. However, he hasten to add that subsequently the Governmenthas through the Public Works Department have started to maintain theErys and irrigation. There is a constant demand for water resourcesto cultivate land for food to feed the hungry millions of this https://hcservices.ecourts.gov.in/hcservices/ country and lands to provide shelter for the people. In the presentcase, the bus stand proposal is based on municipality's demand for apublic cause. The two needs have to be harmonized so that there is asustained development. The development on one side should not soundthe death knell for another (i.e.) Ery system. 18. Now coming to the factual aspects of the bus standproposal, we find that in the year 1991, the District Collector basedon the difficulty faced by the public in accessing the bus standsituated inside the municipality suggested that the Tindivanam Erymay be considered for locating the bus stand. In the same year, themunicipality passed a resolution No.400 seeking permission to enterupon the Tindivanam Ery land. Thereafter for more than two yearsthere was no activity. In January, 1994, the Commissioner of thethird respondent Municipality makes a request to the Collector foralienation of the Ery land and the thoppu poramboke. However, on29.3.1995, the District Revenue Officer by referring to GovernmentLetter No.36864/M/2/92/9 dated 24.11.94 and 65538/M2/93.2 dated19.12.94 opined that the proposal for transfer of Ery land may begiven up and any other alternate site may be chosen. Thereafter,the matter did not proceed further for more than 2 years. 19. In March, 1997, the third respondent municipal councilpassed a resolution No.612 dated 7.3.1997 and reiterated its plea forlocating the bus stand at the Ery site as no other suitable locationwas available. The Commissioner of third respondent in his letterdated 7.3.97 communicated the resolution No.612 of the Municipalityand resubmitted the proposal. Thereafter general notice was issuedcalling for objections from public with regard to transfer of 1 acreof thoppu land in R.S.No.33/2 and 5 acres of Ery land in R.S.No.36/2to the Tindivanam Municipality. It is stated that the site wasinspected by the Tahsildar, Revenue Inspector and V.A.O., on16.9.1997 and a proposal has been given in Na.Ka.No.A1/4784/97 dated9.10.1997 by the Tahsildar. The Tahsildar opined that the land whichhas to be alienated will not serve any useful purpose in future andit will not affect the ayacutdhars. The Assistant Collector on24.10.1997 inspected the land and stated that the proposed Ery landand thoppu poromboke land are very adjacent to Trichy-Chennai TrunkRoad. He stated that there was no objection in village for theproposed transfer of classification. He further stated that thelands are suitable for the new bus stand of the Tindivanammunicipality. He also stated that though the lands in R.S.No.36/5was classified as Ery poromboke, the ayacutdhar lands are convertedto house sites. Hence transfer proposal was recommended. 20. In February 1998, the Tahsildar called upon the thirdrespondent municipality to give the proposal in Form No.24 along withthe resolution. In response to this, the third respondentmunicipality passed a resolution No.473 dated 25.9.1998 requesting https://hcservices.ecourts.gov.in/hcservices/ for transfer of land from Survey No.33/2 – 1 acre thoppu porombokeand from R.S.No.36/2 - 5 acres of Ery poromboke, totalling to 6 acresfor the proposed bus stand. This was forwarded by the Commissionerto the Tahsildar on 5.10.1998. 21. Thereafter on 9.4.1999, the District Revenue Officer makesan inspection in respect of the above said land and concurs with theopinion of the Assistant Collector dated 24.10.1997 which is alreadyextracted. On 8.11.1999 the Revenue Divisional Officer reports tothe Collector in letter ROC No.A3/127/98 stating that the thoppuland in Survey No.33/2 – 1 acre and Ery land in R.S.No.36/2 – 5acres, totally 6 acres can be transferred for the purpose of puttingup bus stand for third respondent municipality. He also states thatpermission to enter into the land can be granted to the thirdrespondent municipality. 22. Technical opinion has been taken stating that the land isfit for locating bus stand. Marakkanam Panchayat Union within whosejurisdiction the proposed land is situate, passed a resolution foralienation of the 6 acres of land on 12.11.1999. 23. On 10.1.2000 the District Collector referring to theinspection made by the Tahsildar, Assistant Collector, DistrictRevenue Officer and other records, was of the view that alienationmay be granted to the third respondent municipality in respect ofthe proposed thoppu and Ery lands for construction of modern busstand as the third respondent could not locate any other site. TheCollector was of the view that by establishing the bus stand, themunicipality will have revenue by constructing shop complex,collecting daily entry fee for the bus, and by constructing pay anduse toilet, etc. Therefore, after collecting the appropriate valuefor the land and trees etc., the transfer can be effected. He alsoreferred to municipal commissioner's letter agreeing to pay the valueof the land. The Collector further stated that the present site wasidentified because the municipality could not locate any other place.He further stated that though there is no specific ban, since theland in question is a Ery poramboke he sought the Government''spermission for an exemption order. The Collector further stated thatthe land sought to be transferred is an elevated area and no water isstored there. He recommended for transfer of the 6 acres of theland as above. 24. Based on the recommendation of the Collector, theGovernment passed the G.O.Ms.No.101 dated 5.3.2001. While passingthe G.O., the Government was of the view that there was no objectionfrom the villagers. The Marakkanam Panchayat Union has no objection.There is no technical ban for transfer of the land and there is notemple, mosque or electric line or monuments. The Governmentaccepted the value fixed by the authorities and issued G.O., by https://hcservices.ecourts.gov.in/hcservices/ stipulating certain conditions. The first condition is that thetransfer is on usual terms and conditions under Boards Standing OrderNo.24. The land should be properly developed keeping in line withthe national highway. Clause 2 is relating to the value. Clause 3is relating to the charges to be paid for transfer. Clause 4 isexemption by government on account of the transfer of a portion ofthe water body. Clause 5 is restriction on other uses. Clause 6 isrelating to retransfer (i.e.) if the entire or part of land is notused for the purpose, the same should be returned to the RevenueDepartment. Pursuant to the G.O.Ms.No.101 dated 5.3.2001 paymentswere made. 25. From March, 2001 till January, 2003, no specific actionappears to have been taken. On 14.1.2003 it appears that thepossession of the land was given to the third respondent municipalityand that is not disputed by the third respondent. According to therespondents, on 27.10.2003, revenue records are changed. Thereafter,the files relating to the project were moving from one authority toother. In October 2003, the design to the proposed bus stand hasbeen finalised. 26. From October 2003 for about 9 months, there appears to be astalemate, the bus stand proposal did not fructify. Thereafter on30.7.2004, third respondent municipality takes an "U" turn and passedthe resolution No.354 dated 30.7.2004 stating that if the Governmentdecides that the land is not suitable for construction of bus stand,the council recommends that the new bus stand should be put up in thewakf board's land. 27. From the above proceedings, it is clear that the thirdrespondent municipality unable to find a suitable location, has beenrequesting the revenue authorities to give the Tindivanam Ery land toan extent of 5 acres and the thoppu poromboke land to an extent of 1acre, totalling 6 acres. Initially in the year 1991 there wasobjection from the revenue authorities referring to Governmentletters which clearly stated that Ery land should not be transferredfor other use. Thereafter in the year 1997, there seems to bechange. The revenue authorities after inspection opined that theland can be transferred. The primary reason for the authorities torecommend the transfer of the land is on the ground that the proposedEry land is not a low lying land and there is no water in that spot.The ayacut lands are converted to house sites. The proposed land isadjacent to the national high way. Therefore, it will be moresuitable for the proposed bus stand. The Collector accepted thevalue of the land stating that the municipality will earn revenue byexploiting it commercially. The authorities requested for exemptionfor transfer of the Ery land and exemption was granted by theGovernment. The Government was primarily concerned with thelocation of the bus stand at the request of the third respondent https://hcservices.ecourts.gov.in/hcservices/ municipality. Considering that there was no alternate site, theGovernment granted the exemption for alienation. There is nodiscussion with regard to the alienation of Ery land though there isa policy that water bodies, like, Erys, lakes, ponds, etc., shouldnot be alienated, particularly in the light of G.O.Ms.No.41 dated20.1.1987. 28. On 30.7.2004 another resolution No.354 was passed by thethird respondent municipality to construct the bus stand in the landbelonging to the Wakf Board. Based on the recommendation by theofficers of the department, Government passed the G.O.Ms.No.136 dated15.9.2005 which reads as follows:"ORDER:In his letter read above, the Commissioner ofMunicipal Administration among other things, hasstated that the Tindivanam Municipal Council inits resolution No.395 dated 17.8.2005, hasresolved to obtain land for the construction of aNew Bus Stand, on lease basis from the Wakf Board.He has further stated that the area of the site is6 acres and that it abuts the N.H.45 in SurveyNo.202, of the Gidangal Village belong to the WakfBoard at Mylam Road. He has also stated that theMunicipal Council in its Resolution has resolvedto obtain the lands on lease basis on theconditions offered by the Tamil Nadu Wakf Board,for an initial period of lease for 3 years,extendable 25 times thereafter. He has indicatedthat lease rent of Rs.60,000/- per month and anadvance amount of Rs.6 lakhs is to be paid toTamil Nadu Wakf Board for the said land.2. The Chief Executive Officer, Wakf Board hasagreed for fixing a lease amount of Rs.60,000/-per month to lease out 6 acres of the Wakf Boardland in Survey No.202 of the Gidangal Village withan advance amount of Rs.6.00 lakhs. He has alsostated that it has also been agreed that theTindivanam Municipality would take all measures toremove the encroachment from the above land.3. The Government after careful examinationaccord permission to the Tindivanam Municipalityto take over 6 acres of land out of 24.04 acres inSurvey No.202 of the Gidangal Village from theTamil Nadu Wakf Board, on lease basis forconstruction of a bus stand with the conditionsstipulated by the Wakf Board for a lease period of https://hcservices.ecourts.gov.in/hcservices/ 3 years, extendable 25 times thereafter. TheGovernment also permit the Municipal Commissioner,Tindivanam Municipality to pay lease rent ofRs.60,000/- per month with an advance amount ofRs.6.00 lakhs to the Tamil Nadu Wakf Board."The Government in this case has not discussed anything about theearlier G.O.Ms.No.101 dated 5.3.2001. There is no reference to theproceedings, whereby the land was transferred to the third respondentmunicipality, payment of money by the municipality and the varioussteps taken for the construction of the new bus stand at the Erysite. G.O.Ms.No.136 dated 15.9.2005 proceeds as if the earlierG.O.Ms.No.101 dated 5.3.2001 does not exist. This G.O.Ms.No.136dated 15.9.2005 was challenged and the writ petition was dismissed.It appears that subsequently lease deed was executed, advance waspaid and the inauguration for construction was also taken up. It isstated that in view of the announcement of election, the opening ofthe bus stand in the Wakf Board land consequent to G.O.Ms.No.136dated 15.9.2005 is not opened. 29. The bus stand did not come into operation in real termseither under G.O.Ms.No.101 dated 5.3.2001 or the subsequentG.O.Ms.No.136 dated 15.9.2005. For one reason or other, the projectbecame a non starter. 30. Thereafter, on 13.6.2006, the third respondent municipalcouncil passed the impugned resolution No.671 stating that they donot want to proceed with the proposal for putting up the bus stand inthe Wakf Board's land. On the contrary, they resolved to proceedwith the land brought from the revenue department at the TindivanamEry site. When the third respondent municipality passed the saidresolution, two Government Orders are in force. It is fairlyconceded by the learned Advocate General appearing for the thirdrespondent Municipality that both the Government Orders have not beenrescinded or withdrawn. The third respondent municipality has beenchanging its stand with regard to the place of the proposed bus standfrom time to time and the Government appears to be favouring suchproposal. In both the Government orders, there is no discussionwith regard to merits or demerits of the proposal. There is noreason given in G.O.Ms.No.136 dated 15.9.2005 as to why the earlierG.O.Ms.No.101 dated 5.3.2001 should not be given effect to. Thereis no discussion on the various proceedings taken with regard totransfer of land to the third respondent municipality. In fact inG.O.Ms.No.101 dated 5.3.2001, it has been clearly stated that if theland is not put to use for the purpose specified, the Government willresume the land and that also has not been done. The Government inthe first instance while passing G.O.Ms.No.101 dated 5.3.2001 has notconsidered the impact of transfer of Ery land for the proposed busstand, particularly in the light of G.O.Ms.No.41 dated 20.1.1987. https://hcservices.ecourts.gov.in/hcservices/

31. After passing of Government Orders in both the cases, thereis a stalemate in the putting up the bus stand and that has delayedthe whole project from time to time. In the year 2006 when theimpugned resolution was passed by the third respondent municipalityand during the subsequent period, the utilisation of the water bodiesfor alternate use came up for scrutiny before this court on severaloccasions which has already been set out above. The High Courts andthe Supreme Court have taken strong objections to use of waterbodies, like Erys, lakes, tanks, ponds, etc., for alternate use. Theemphasis was on protection of water bodies and removal ofencroachment. Several decisions have already been referred to aboveand the Government cannot shut itself of those decisions and itspolicy. A specific Act, viz., The Tamil Nadu Protection of Tanksand Eviction of Encroachment Act, 2007 has also been enacted forremoval of encroachment. As rightly stated in the counter-affidavitof the third respondent, it is for the Government to finally decidethe issue relating to transfer of Ery land (i.e.) water bodies, orits use for putting up the bus stand, keeping in mind the changedcircumstances and the new laws which have been enacted. 32. The Court while deciding a lis can also take intoconsideration the subsequent events of fact or law which have amaterial bearing on the issue before it and the relief can beappropriately moulded. The decision of the Apex Court in RameshKumar – vs. - Kesho Ram reported in 1992 Supp (2) Supreme Court Cases623 explains the above said position. The relevant paragraph 6reads as follows:-"6. The normal rule is that in any litigation therights and obligations of the parties are adjudicated uponas they obtain at the commencement of the lis. But this issubject to an exception. Wherever subsequent events offact or law which have a material bearing on theentitlement of the parties to relief or on aspects whichbear on the moulding of the relief occur, the court is notprecluded from taking a 'cautious cognizance' of thesubsequent changes of fact and law to mould the relief. InLachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (AIR1941 FC5:73 CLJ 51 : 53 MLW 373), Chief Justice Sir MauriceGwyer observed:(AIR p.6)"But, with regard to the question whetherthe court is entitled to take into accountlegislative changes since the decision underappeal was given, I desire to point out that therule adopted by the Supreme Court of the UnitedStates is the same as that which I think commendsitself to all three members of this Court. In https://hcservices.ecourts.gov.in/hcservices/ Patterson v. State of Alabama [(1934) 294 US600], Hughes C.J. said: 'We have frequently held that inthe exercise of our appellatejurisdiction we have power not only tocorrect error in the judgment underreview but to make such disposition ofthe case as justice requires. And indetermining what justice does require,the court is bound to consider anychange, either in fact or in law, whichhas supervened since the judgment wasentered'."And in Pasupuleti Venkateswarlu v. Motor & General Traders[(1975)1 SCC 770 : (1975)3 SCR 958], Justice Krishna Iyersaid: (SCC p.772, para 4)"We feel the submissions devoid ofsubstance. First about the jurisdiction andpropriety vis-a-vis circumstances which come intobeing subsequent to the commencement of theproceedings. It is basic to our processualjurisprudence that the right to relief must bejudged to exist as on the date a suitorinstitutes the legal proceeding. Equally clearis the principle that procedure is the handmaidand not the mistress of the judicial process. Ifa fact, arising after the lis has come to courtand has a fundamental impact on the right torelief or the manner of moulding it, is broughtdiligently to the notice of the tribunal, itcannot blink at it or be blind to events whichstultify or render inept the decretal remedy.Equity justifies bending the rules of procedure,where no specific provision or fair play isviolated, with a view to promote substantialjustice – subject, of course, to the absence ofother disentitling factors or just circumstances.Nor can we contemplate any limitation on thispower to take note of updated facts to confine itto the trial Court. If the litigation pends, thepower exists, absent other special circumstancesrepelling resort to that course in law orjustice. Rulings on this point are legion, evenas situations for applications of this equitablerule are myriad." https://hcservices.ecourts.gov.in/hcservices/ These principles have since been reiterated and reaffirmedin Hasmat Rai v. Raghunath Prasad [(1981)3 SCC 103 : (1981)3 SCR 605]."Therefore, the new laws enacted and the ruling of Court will have tobe considered by the appropriate authority, namely, the Government.33. In this case, the third respondent municipality has passedresolution in the year 2006 reiterating its earlier view to put upthe bus stand in the Ery land. In the counter-affidavit afterstating that the municipality is proposing to put up the bus stand atthe Ery land, it has been specifically averred by the thirdrespondent that the bus stand will be put up only after thepermission is granted by the Government. It is, therefore, for thegovernment to decide the issue one way or the other.34. The courts have time and again emphasized the Government'srole in protecting the water bodies in view of the large number ofencroachment. There is also a direction of this court that suchwater bodies should should be maintained in the larger interest ofpublic. Therefore, the final decision as to whether the bus standshould be located at the Wakf Board's land or at the Ery land has tobe decided by the Government keeping in mind the various laws enactedwith regard to the protection of water bodies and in the light ofvarious decisions of this court and the Apex Court. No doubt theprotection of water bodies, environment is a priority and anecessity. The Municipal towns also need to have a sustaineddevelopment and should expand horizontally. There is a greatnecessity for the residents of the municipality for public purposeprojects. The congestion in the municipal town has forced the thirdrespondent municipality to look for alternate site to locate the newbus stand. This factor has to be considered fairly taking intoconsideration several essential parameters. Some have beenhighlighted in the additional counter-affidavit.35. In Bombay Dyeing Manufacturing Company Limited (3) – vs. -Bombay Environmental Action Group reported in (2006)3 SCC 434, theApex Court considering the need to protect environment and the needto promote development simultaneously held as follows:-"The harmonisation of the two needs has led tothe concept of sustainable development, so much sothat it has become the most significant and focalpoint of environmental legislation and judicialdecisions relating to the same. Sustainabledevelopment, simply put, is a process in whichdevelopment can be sustained over generations.Brundtland Report defines 'sustainable development'as development that meets the needs of the present https://hcservices.ecourts.gov.in/hcservices/ generations without compromising the ability of thefuture generations to meet their own needs. Makingthe concept of sustainable development operationalfor public policies raises important challengesthat involve complex synergies and trade offs.""The development of the doctrine ofsustainable development indeed is a welcome featurebut while emphasizing the need of ecologicalimpact, a delicate balance between it and thenecessity for development must be struck. Whereasit is not possible to ignore intergenerationalinterest, it is also not possible to ignore thedire need which the society urgently requires." The above portion of the decision of the Bombay Dyeing case isreferred to in the decision of the Apex Court in Susetha – vs. -State of Tamil Nadu and others reported in (2006)6 SCC 543, in para21 and 21. 36. Learned Advocate General appearing for the third respondentmunicipality stated that the need of the public to have a bus standis also a compelling necessity and the State has to oblige suchneeds. The resolution of the municipality is keeping in line withthe public demand and therefore, the resolution of the thirdrespondent municipality should not be interfered with.37. That argument of the learned Advocate General can beaccepted, provided the Government on its part, as stated by the thirdrespondent municipality in the counter-affidavit, consider theproposal of the municipality in the light of the various decisionsof this court and that of the Apex Court which has already referredto above and the law that has been enacted to protect the waterbodies. The government as stated in the third respondent's counter-affidavit has to come to a definite conclusion as to how theinterest of the public, will be best served and where the bus standshould be located. This aspect has to be considered by theGovernment taking into consideration the two Government Orders whichhave already been issued, viz., G.O.Ms.No.101 dated 5.3.2001 andG.O.Ms.No.136 dated 15.9.2005, both granting permission to put up busstand in two different locations. We find that the resolution ofthe third respondent municipality has also been changing from time totime. 38. In the additional counter-affidavit a report has been filedgiving certain facts and figures to substantiate the plea that noloss of water will occur by alienating the 5 acres of Ery land, ifthe rest of the Ery is deepened. Certain details are given as to howthe water body will retain the same quantity of water even if the 5 https://hcservices.ecourts.gov.in/hcservices/ acres of Ery land is alienated and how the environment will beprotected. It is based on an inspection. Such technical details canbe considered by the Government or by expert body of the Governmentand not by the court. The court is not competent to go into suchdetails and decide which course will be proper and a correctapproach. It is for the Government and its authorities who aretechnically qualified and competent to deal with such issues. Merelyon the basis of the report in the counter-affidavit, we are unable tocome to a definite conclusion that the water body will not beaffected. Therefore, the decision of the Government becomes relevantin the facts of the present case.39. We, therefore, feel it appropriate that the Governmentshould look into the proposal and consider the resolution of thethird respondent in the light of the law laid down by the courts,viz., High Courts and Apex Court and also keeping in mind the variousGovernment Orders and the law enacted in so far as the protection ofwater bodies are concerned and decide the issue as to where the busstand should be located. It is the Government's role to look intothe need of public for utilities like the bus stand and also toprotect the environment, the water bodies, like, Erys, tanks, ponds,lakes, which provide the source for food and sustenance.40. In view of the two Government Orders already in force, theGovernment to make a final decision one way or the other. The courtcannot substitute its view as to which Government Order will be moreappropriate and should be followed. The Government itself is notdefinite in its decision. Courts will not supplement its view as tohow the Government should proceed in the matter. 41. In view of the above, at this juncture, this court is notinclined to interfere with the resolution of the third respondentmunicipality or direct the Government to implement a particular G.O.We make it clear that the Government will consider the entire issueafresh and pass an appropriate order taking into consideration theearlier G.O.Ms.No.101 dated 5.3.2001 and the recent G.O.Ms.No.136dated 15.9.2005 and the various resolutions passed by the thirdrespondent municipality and decide the third respondent's plea forputting up the bus stand. The government while considering thisissue has to deal with all aspects that have been highlighted beforethis court, particularly, the protection of water bodies pollutionand allied issues. Till such final decision is taken by theGovernment, no further steps should be taken for construction forthe bus stand. 42. Since the matter is relegated to the Government for itsdecision, this court is not inclined to issue a writ of mandamus toimplement the G.O.Ms.No.136 dated 15.9.2005. The prayer fordeclaration also stands rejected for the above said reasons. This https://hcservices.ecourts.gov.in/hcservices/ Court is, however, inclined to issue a mandamus to the firstrespondent Government to pass appropriate orders as indicated above.Both the writ petitions are disposed of accordingly. 43. The impleading petitions M.P.No.2 of 2006 and M.P.No.1 of2008 in W.P.No.19388 of 2006 and M.P.No.1 of 2008 in W.P.No.7243 of2007 are dismissed. The other miscellaneous petitions M.P.No.1 of2006 in W.P.No.19388 of 2006 and M.P.No.1 of 2007 in W.P.No.7243 of2007 are closed. No order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarts. To1.The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009.2.Commissioner of Municipal Administration, Chepauk, Chennai-600 005.3.The Commissioner, Tindivanam Municipality, Tindivanam. +1cc to Mr.Balan Haridoss, Advocate Sr 33452+1cc to Mr.Ajay Khose,Advocate Sr 33605+1cc to Govt. Pleader Sr 34246VSV(CO)km/4.8. W.P.Nos.19388 of 2006 and 7243 of 2007