Case Title : R.Manibharathi versus Union of India and others
Case No: WP(MD) Nos.31214 & 31221 of 2023 And WMP(MD)Nos.26742, 26743, 26745 & 26752 of 2023
Quorum: The Hon’ble Mr. Justice G.R.Swaminathan and the Hon’ble Mr. Justice B.Pugalendhi.
Facts of the case:
Prayer in WP(MD)No.31214 of 2023: Writ Petition filed in accordance with Article 226 of the Indian Constitution, directing the sixth respondent to promptly restore the retaining wall and bund to its original. Reinstate Thenkal Kanmoi by expanding to its original water spread area in compliance with the law within the time frame set by this Court and from the stretch of Vilachery Main Road, behind Mata Amritananda Mayi Math, to the current Madurai – Thirumangalam Main Road and To order the respondents 5, 9, 10, 13, and 17 to provide sufficient payment for tearing down the retaining wall and bund that were built across the “Thenkal Kanmoi” border from the section of Vilachery Main Road that is behind Mata.
Mayi Amritananda to the respondent Nos. 3, 4, and 5 for the purpose of reconstructing the bund, retaining wall, and maximizing the original water spread area in order to restore Thenkal Kanmoi to its original portrait in compliance with law and to apply the “Polluter Pays Principle” to the existing Madurai – Thirumangalam Road.
To instruct Respondents 3 and 4 to investigate and take appropriate action against Respondents Nos. 5, 9, 10, 13, and 17 as well as those individuals accountable for destroying the retaining wall and bund constructed over “Thenkal” Kanmoi, causing damage to the original water distribution region of Thankal Kanmoi in compliance with the law within the time frame set by this Court, from the section of Vilachery Main Road, behind Mata Amritananda Mayi Math, to the current Madurai – Thirumangalam Main Road.
Prayer in WP(MD)No.31221 of 2023: Writ Petition filed under Article 226 of the Indian Constitution, directing the sixth respondent to promptly restore the retaining wall and bund to its original. The restoration of Vandiyur Kanmoi by expanding it to its original water spread area in compliance with the law within the time frame set by this Court, and the previous position over the boundary of “Vandiyur Kanmoi” from Melamadai Traffic Signal towards Madurai – Sivagangai Road near Indian Oil Petrol Pump at Gomathipuram to order the respondents 5, 9, 10, 13, and 17 to provide sufficient payment for tearing down the retaining wall and bund that were built above the “Vandiyur Kanmoi” border as they traveled from the Melamadai Traffic Signal towards Madurai.
Sivagangai Road near the Indian Oil Petrol Pump in Gomathipuram to respondent Nos. 3, 4, and 5 on the grounds of the “Polluter Pays Principle” in order to reconstruct the bund, retaining wall, and maximize the original water spread area in order to legally restore Vandiyur Kanmoi to its original portrait and to instruct respondents 3 and 4 to investigate and take appropriate action against respondents Nos. 5, 9, 10, 13, and 17 as well as those parties accountable for destroying the retaining wall and bund constructed over “Vandiyur.”
Within the time frame set by this court, Kanmoi from Melamadai Traffic Signal towards Madurai – Sivagangai Road near Indian Oil Petrol Pump at Gomathipuram and causing damage to the original Vandiyur Kanmoi water spread area in compliance with the law
Appellant Contentions:
The learned Senior Counsel appearing for the petitioner submitted that the writ petitions have to be allowed because the department had failed to obtain prior environmental clearance. He further contended that there must be sufficient distance between the tank bund and the road. He relied on the provisions of Revenue Standing Orders. Our attention was drawn to a Catena of decisions rendered by the Hon’ble Supreme Court and the Madras High Court.
Respondent Contentions:
The learned Advocate General as well as the learned Senior Counsel Appearing for the private respondents submitted that as a result of the implementation of the petition-mentioned projects, the two water bodies will not be in any way affected. The learned Advocate General was fair enough to leave it to the court to lay down additional safeguards for the protection of the water bodies in question.
Court Analysis and Judgement:
Apart from the aforesaid two contentions, no other argument was advanced to assail the two projects. For the reasons already mentioned, we have to reject both the submissions. The order restraining the implementation of the projects stand lifted. The works can resume because they have been conceived in public interest. But in the name of public interest, water bodies cannot be obliterated. We take judicial notice of the fact that in Madurai region, a number of water bodies some of them very large have already disappeared. They have fallen prey to the Tamil Nadu Housing Board and the Tamil Nadu Slum Clearance Board and the Various government departments. If a new building has to be constructed to accommodate the needs of a department, the first target will be the water body in the vicinity.
We note with pain that a number of Court Complexes are located in what were originally tanks. When the District of Thoothukudi witnessed torrential rains and floods, the court building that was located very near a water body faced the fury of nature. Nearly thousand case bundles will have to be reconstructed. Before us, a few hundred Writ petitions are pending seeking removal of encroachment on water bodies. There is indiscriminate dumping of plastic waste and garbage on them. Drainage and sewage are being let out into tanks and rivers. The local bodies have to be nudged and pushed to discharge their statutory functions.
Through the city of Madurai, a river by name, Kridhumaal Nadhi flowed. What was once a river has become a narrow drainage channel. Its course has been altered by urbanization and construction of buildings. Even Vaigai has not been spared. Its width has been narrowed by construction of a service road. The environmental Jurisprudence evolved over the years by the Hon’ble Supreme Court of India as well as the Madras High Court impels us to issue certain directions to the Government of TamilNadu. We are only reiterating what has already been laid down
A) To open a dedicated website containing an exhaustive list of all water bodies in the State of Tamil Nadu. It shall contain all the Relevant details pertaining to each and every water body (including Tanks, lakes, rivers, kanmois etc.,). Their survey number, physical location, details of village, taluk and district and extent (both original and present). Their area and dimensions will have to be precisely measured and catalogued. Such a website meant for viewing by all shall be opened within six months from the date of receipt of copy of this order. From the village level onwards, the exercise of collating details will be undertaken and certified at the Taluk level and based on the same, they will be uploaded. If the details are found to be incorrect, any individual can bring the same to the notice of this Court and this Court will initiate appropriate proceedings against the person responsible for furnishing incorrect data. The officials should therefore undertake not only physical inspection but also carefully verify all the official records.
B) The existing encroachments in all the water bodies shall be identified and removed after issuing notice to the encroachers. If constructions have been made, they shall be demolished. Further encroachments shall not be permitted. Nor should they be regularized.
C) Pattas issued in respect of water bodies after 01.01.2000 shall be cancelled and the water bodies shall be restored to their original position.
D) Development projects will be conceived and implemented in a manner not to affect the integrity of the water bodies in any manner. The water bodies including tank bunds shall be maintained in tact and proper distance shall be reserved.
E) Water bodies belong to the society. Their ownership may technically rest in local bodies/departments/government. But they are a gift of nature and have to be available not only for human beings. But also animals and birds. We notice that water bodies have been corporatized. The licensees to enhance their profit, indulge in unsustainable practices. It is the duty of the officials to ensure that the quality of water is not affected in any manner. Whenever tender notice are issued, appropriate conditions shall be incorporated so as To effectuate the direction set out in this clause. The writ petitions are disposed.
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Judgement Analysis Written by – K.Immey Grace
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