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Judgment
S.J. Mukhopadhaya, J.—This writ petition, in public interest, has been preferred by the petitioner, K.K. Nagar Residents'' Welfare
Associations (hereinafter referred to as ''Association'') for issuance of a writ of mandamus forbearing the respondents from in any manner
interfering with the natural pond located between Double Tank Colony and Rajamannar Salai in survey No. 394 and altering its current position
and to direct the respondents to remove the encroachments in and around the natural pond area and preserve and maintain the same in good
condition.
According to the petitioner, there is a large natural pond located between Double Tank colony and Rajamannar Salai, measuring an extent of 3
acres in survey No. 394, which was originally vested with Chennai Corporation. Subsequently, it was handed over to the 3rd respondent, Chennai
Metropolitan Water Supply and Sewerage Board (hereinafter referred to as ''Water Supply and Sewerage Board'') almost 12 years ago. Both
Chennai Corporation and Water Supply and Sewerage Board failed to protect the naturally formed pond, which has several encroachments in and
around the pond. They also failed and neglected to clear the pond of weeds and other vegetation that have grown in it and bushes that has come
up around it. The main gate for the pond has been damaged and kept open all the time leading to passers-by using the area around the pond as an
open toilet and for use of anti-social elements for illegal activities. The deterioration of the water body has also lead to the area becoming a fertile
ground for breeding mosquitoes and members of K.K. Nagar are put to great hardship and inconvenience.
Learned Counsel appearing on behalf of the petitioner submitted that the petitioner has already represented the matter on 3rd Feb., 2005 to the
3rd respondent to clear the natural pond of the weeds and maintain it in good condition, but no action has been taken. On the other hand, they
were shocked to learn that the 3rd respondent is proposing to have an additional overhead storage tank and a pump in the double tank for a water
distribution station. Proposal has been made to lay a big underground tank in the natural pond area. The additional pump will be used for pumping
water from the underground storage facility to the overhead tank and the capacity of storage of water will be upgraded to 14 ML (ML - Million
Litres) as against the existing 9.9 ML. The capacity of pipeline that handles the distribution is also proposed to be increased depending on the
distance from the overhead tank. The natural pond is currently full of water having been replenished by recent rain and it has been excellent source
for harvesting rain water and has facilitated in maintaining good water level in and around the area of K.K. Nagar. The residents of K.K. Nagar
and nearby localities, like Virugambakkam, Vadapalani, Ashok Nagar and M.G.R. Nagar have also been able to benefit by good ground water
supply because of the existing natural pond.
The main submission made on behalf of the petitioner is that if the proposal of the 3rd respondent is allowed to continue by putting in place an
additional pump for pumping out water from the underground storage facility and setting up an underground tank, it will cause diminution of the
tank area and, in turn, cause serious depletion of ground water and water table is sure to come down. Since time immemorial, ponds, tanks and
lakes have been used by people in this country for collecting rain water for use for various purposes, but it is alleged that in recent years, such
water bodies are illegally encroached upon by unscrupulous elements or been diverted for other use, consequently affecting the lives of the people.
Further, having regard to the acute water scarcity, which hits the State very often, more specifically the Chennai City, such natural resources need
to be preserved and maintained so as to enable the rain water to be stored and to facilitate underground recharge in the city.
Ms.Selvi, learned Counsel on behalf of the petitioner, while submitted that there is a need for protecting tanks and checking their encroachment,
brought to the notice of the Court Act No. 8/07 - Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, which specifically
provides measures for checking encroachment by removing encroachers from tanks and other water bodies, which are under the control and
management of the Public Works Department. She also relied on one or other decision of this Court and Supreme Court to suggest that any
disturbance of basic environment, such as air, water and soil is hazardous to life and will violate Article 21 of the Constitution of India. Reliance
was also placed on Article 47 and 48-A, which mandates the State to protect and improve the environment and safeguard its forests.
The 3rd respondent, Water Supply and Sewerage Board, in its counter affidavit, while denied the allegation, shown grounds for utilising the land
in question. According to the 3rd respondent, the entire area referred to by the petitioner belongs to the Water Supply and Sewerage Board and is
provided by pucca compound wall. The office of the Board is situated therein and there is no encroachment in the area surrounded by compound
wall, as alleged. The lands are developed by putting up overhead tanks, underground tank and pump house for the benefit of the residents of K.K.
Nagar to supply water as supplied to the rest of the areas within Chennai. The Water Supply and Sewerage Board proposed certain improvement
works to the water supply system in Chennai City under Jawaharlal Nehru National Urban Renewal Mission funding from Government of India.
One of the proposal is to construct overhead tank of 2.4 ML capacity and underground tank of 14.0 ML capacity at K.K. Nagar head works
adjacent to Rajamannar Salai. The entire land earmarked for the proposed construction of underground tank and overhead tank and pump house
inside is totally free from any encroachment and being already protected by compound wall.
Learned Government Pleader appearing for the Water Supply and Sewerage Board submitted that the entire area on which K.K. Nagar has
been established, including the lands in survey No. 394 were shown more than 100 years back in the ''Adangal'' as ''Periya Eri''. The nature of the
land having subsequently changed for more than 100 years, in the last revenue record, it was classified as ''Government Poramboke'' (Government
Lands). The lands were subsequently converted into housing colony, as there was no eri or pond in the said lands at that time. The Government in
G.O. Ms. No. 443, Revenue Department, dated 10th March, 1982, permitted the Tamil Nadu Housing Board (hereinafter referred to as ''Housing
Board'') to enter upon the land measuring 65.73 acres in survey No. 394 of Kodambakkam Village, Saidapet Taluk, Chengalpet District for
implementation of the Kodambakkam- Pudur Housing Scheme and the lands were placed with the Housing Board for implementation of the
housing scheme. The Housing Board, after development of the lands, allotted plots to general public and sale deeds were issued to them, including
the members of the petitioner-Association. The Housing Board has allotted 13,889 sq. mtrs. of land for the Kodambakkam-Pudur Housing
Scheme and Water Supply and Sewerage Board was entrusted with lands for extension of K.K. Nagar water supply head works.
What learned Government Pleader wanted to highlight is that, if original record in ''Adangal'' is looked into, then the houses, which have been
constructed over the lands at K.K. Nagar, all of them have been shown as ''Periya Eri'', but because of change in the nature of lands over hundred
years, as in the last revenue record it was classified as Government poramboke, the lands were given to the Housing Board, in whose turn it was
allotted to the members of the petitioner-association and others. It was submitted that the petitioner having enjoyed such benefit, now for the
purpose of extension of water supply system in K.K. Nagar by the Water Supply and Sewerage Board, the petitioner cannot rely on ''Agangal'' to
suggest that it is ''Periya Eri''.
According to the respondents, additional lands were requested by the Water Supply and Sewerage Board, as Krishna Water is expected to be
delivered at Poondi, for drawing additional supply, treatment, transmission and distribution system, which has to be taken up by the Water Supply
and Sewerage Board. The site was originally disposed for public purpose in K.K. Nagar measuring 59 grounds located on P.V. Rajamannar Salai
and low lying to a depth of 2.5 M to 3.0 M, which was surrounded by water head works on the West, residential quarters of the staff of Tamil
Nadu Housing Board on the South, Kanikapuram Slum on the East and P.V. Rajamannar Salai on the North. Considering the fact that use will be
for public purpose for providing drinking water under the Krishna Water Project, lands were given free of cost to the Water Supply and Sewerage
Board and possession was handed over on 5th July, 1991.
Learned Government Pleader referred to G.O. Ms. No. 443 dated 10th March, 1982 to show that the lands to an extent of 35.84 acres were
handed over for several purposes and balance of 29.20 acres were handed over to the Housing Board for non-saleable purpose for construction
of road, playground, storm water drain, etc., vide aforesaid order. Total extent of 65.73 acres in survey No. 394 of Kodambakkam Village,
Saidapet Taluk, Chengalpet District were placed under the disposal of the Housing Board vide its resolution No. 9.03 dated 27th Nov., 1993,
which resolved to allot the site measuring 13,889 sq. mtrs. to Water Supply and Sewerage Board for its Krishna Water Project free of cost in
public interest.
It was further submitted by the counsel for the respondents that Water Supply and Sewerage Board has already awarded the work of construction
of the above structure, i.e., overhead tank, underground tank and pump house to the contractor, M/s. IVRCL on 29th Aug., 2007 for a value of
Rs. 23.83 Crores and the contractor has already commenced work in the said location on 18th Oct., 2007. The work is under progress. It is at
this stage the writ petition is stated to have been filed with a view to stop the construction.
Learned Counsel for the petitioner placed certain photographs to show that work in under progress; poclain machines are used for the work
and at some place earth has been stacked to fill up the area. From these photographs, it appears that the lands in dispute is surrounded by pucca
boundary wall and there appears to be some water located in the area which is full of algae. It is a shallow area, wherein it appears that rain water
was accumulated.
From the record it appears that the area in dispute measuring 59 grounds in survey No. 394/1 (Part) located on P.V. Rajamannar Salai is low
lying to a depth of 2.5 M to 3.0 M, surrounded by water head works on the West, residential quarters of the staff of Tamil Nadu Housing Board
on the South, Kanikapuram Slum on the East and P.V. Rajamannar Salai on the North. The same is also clear from the photographs produced by
the counsel for the petitioner. From the counter affidavit we find that for strengthening the water supply in Chennai city, a master plan has been
prepared. Out of 16 water supply stations proposed, 12 water supply stations have already been completed, but balance 4 water supply stations
could not be taken up by the Water Supply and Sewerage Board due to financial constraint. Now, the Government of India under the Jawaharlal
Nehru National Urban Renewal Mission has approved various projects for Rs. 22.00 Crores for improving water supply system in Chennai city of
which details have been shown at para-9 of the counter affidavit filed by the 3rd respondent, including the ground water tank, overhead tank and
pump house in question.
We have heard the parties and noticed the rival contentions and the facts as highlighted by them.
Right to enjoy quality life in a healthy environment where ecological balance is maintained by preserving ponds, tanks and lakes is a right
guaranteed under Article 21. If illegal encroachments are made in those places, Court can direct to remove such encroachments. In this
connection, one may refer to a Division Bench judgment of this Court in Indian Additives Ltd. Vs. Indian Additives Employees Union and Another,
. In the said case, the Court further held that under Article 51A(g), it is the duty to protect forest, lakes, rivers, wildlife, etc.
In the case of Gurpal Singh Vs. State of Punjab and Others, , the Supreme Court, while discussed the scope of entertaining a Public Interest
Litigation, observed that the information given in the petition should not be vague and indefinite and the Court has to strike balance between two
conflicting interests.
Article 21, 48-A and 51 A (g) also fell for consideration before the Supreme Court in the case of Intellectuals Forum, Tirupathi Vs. State of A.P.
and Others, . In the said case, the Court was dealing with the question of conservation of natural resources such as water and land resources,
public water tanks, etc. The need of urban development was shown by the respondents. The Supreme Court, while observed that balance has to
be maintained between development needs asserted and environmental degradation, further observed that it is the duty of all to protect
environment and preserve and conserve natural resources for present and future generations. In the said case, considering the need for housing and
shelter, on the facts of the case, the Court held that the right to shelter do not seem to be so pressing so as to outweigh all environmental
considerations, but in the peculiar facts and circumstances, the Supreme Court observed that there could not be complete restoration and revival of
the tanks, considerable developmental activities having carried out at huge expense involving crores of rupees.
From the record it appears that the land in question, survey No. 394/1 (Part) measuring 59 grounds is low lying to a depth of 2.5 M to 3.0 M.
The photographs produced show that some water has accumulated there, it is full of filth and covered by algae. It is surrounded not only by
compound wall, but locality is adjoining to it. Though in the adangal, more than hundreds of years before the total area was shown as ''Periya Eri'',
the nature of the land of the area having changed and in the revenue records the same having now been classified as Government poramboke lands
were allotted to public since 1982, including the members of the petitioner association. Now, the total area, survey No. 394 cannot be restored to
its original position, more than 26 years having passed and houses having been constructed by persons/Housing Board on the area. So far as the
land in the disputed survey No. 394/1 (Part) is concerned, what the respondents are constructing is underground tank with a pump house and
overhead tank. From the plan as placed on record it will be evident that it is a pucca structure underground tank, which is proposed, with a size of
44.0 M x 32.0 M having water depth of 5.00 M and capacity of 7.0 ML. Apart from such underground tank, proposed overhead tank is of
capacity 2.4 ML. From the aforesaid fact and plan, it will be evident that in the shallow low lying area, in place of accumulating some water on it, a
pucca tank is to be constructed, which will contain much more capacity of water than the water, which now accumulates or is available there.
It has been pleaded and not disputed that there is acute shortage of drinking water in Chennai city. The underground water in the city,
particularly, those which are nearer to sea and also the present area is not meant for direct drinking. Even if some people take out the underground
water, it may be utilised for any purpose, but not for the purpose of drinking clean and safe water. What Water Supply and Sewerage Board is
doing pursuant to their scheme, including the additional scheme is that, they are purifying the water and in the present case, the scheme is to utilise
the Krishna water, and after its purification, to supply it to the residents of the K.K. Nagar, including the members of the petitioner association.
It cannot be denied that in absence of water no living creatures can survive. Every person has a fundamental right to live and for that they have a
right to water, but it should be pure and safe for human consumption. In the present case, the water in the land in question is shallow water filled
with algae and is not safe for drinking; on the other hand it is a place for breeding mosquitoes. What Water Supply and Sewerage Board is doing,
in the present case, is that they are not closing the source of such water, but constructing a pucca tank for retaining water for supply of safe
drinking water to the residents of the area.
From the aforesaid fact it will be evident that there is no conflicting interest between the parties and what measures have been taken by the
respondents will strike balance between the conflicting interest. We find no merit in the writ petition and the same is, accordingly, dismissed.
Consequently, connected miscellaneous petitions are also dismissed. But there shall be no order as to costs.