U.S. Palanivel vs Chief Secretary to Government And Ors

This application is filed under Section 14 of the National Green Tribunal Act seeking the following relief:

"to remove all the debris filled in the Kambathiyan Koil Kulam or Kambathu Viran Tank on the instruction from the 2 nd and 3rd respondents with an intention to construct a park".

The applicant would contend that the Kambathiyan Koil Kulam is situated in R.S.F.No.100/1, 2, 3 and Old S.F.No.660 in Punjai Kalamangalam Village, Erode District and it measures to an extent of 22 acres and 19 cents and the tank/pond is in existence from time immemorial . It is the case of the applicant that during rainy season, water gets stored in the pond and it would be available throughout the year and the excess water from the pond would be sent to Kalingarayan Channel for irrigation purposes. Further, it is stated that for the last 40 years, the said tank was illegally encroached by many of the encroachers and it's width has been reduced and under AGAMT Scheme, a small tank was constructed by the Government with concrete walls at the cost of Rs.4.70 lakhs inside the water body itself violating the rules. The applicant filed a Writ Petition No.19130 of 2009 before the Hon'ble High Court of Madras and it was disposed of on 17.09.2009 with a direction to consider the representation of the applicant and to take appropriate action.

It is contended that 2nd respondent, District Collector did not comply with the directions and the encroachers were not evicted and therefore, the applicant filed Contempt Application C.P.No.802 of 2010 to take appropriate action against the 2nd respondent and thereafter, the 2nd respondent removed 59 houses out of 79 houses constructed in the encroached portion. The applicant would contend that the authorities have now started construction of a Park in the water body by encroaching it and instead of protecting the water body, the State is destroying the water body. It is therefore contended that respondents 2 and 3 are to be directed to remove all the debris filled in the tank with the intention to construct a Park.

The 2nd respondent filed reply contending that the Kambathiyan Koil Kulam is situated R.S.No.100/2 in Punjai Kalamangalam Village in Erode District over an extent of 8.84 hectares and it is classified as "Poramboke Kulam" in revenue records. It is further contended that 59 encroachers have been evicted from the pond area, based on the directions of the Hon'ble High Court of Madras in W.P.No.19130 of 2009 and in the meanwhile, the applicant has filed Contempt Petition No. 1739 of 2011 alleging that the respondents disobeyed the orders of the Hon'ble High Court. The Hon'ble High Court accepted the case of the respondents and closed the Contempt Petition by order dated 28.02.2012. The Government of Tamil Nadu sanctioned Rs.1.50 Crores for the work of "Eco restoration and Rehabilitation of Kambatheeswaran Kulam of Punjai Kalamangalam Village Erode district" under Environment Protection and Renewable Energy Development Fund vide G. O.(3D) No.12, Environment and Forests (EC-2) Department dated 02.03.2015. The work was sanctioned for the purpose of deepening and Eco restoration of the pond and there is no encroachment as alleged by the Applicant. The Collector, Erode accorded administrative sanction for the execution of the above work to Block Development Officer (BDO), Modakkurichi by Proceedings dated 17.04.2015. The components of the estimated work are Deepening of Pond, Construction of Retaining Wall, Construction of Bathing Ghat, Construction of Compound wall around Kids Park, Construction of front Arch for Kids Park, Laying of Paver Block and creating other amenities in Kids Park, Construction of Gents and Ladies Toilet, Laying Paver block for Walking platform, Provision for Solar lights, Provision for Gardening and Landscaping for retaining wall area, Providing Sitting chair arrangements and Provision for Inlet channel improvement.

It is contended that the work was commenced on 19.08.2015 after completion of tender process and Block Development Officer issued work order to M/s. KVCS Construction Company, Coimbatore vide Proceedings dated 07.08.2015. The Pond is now deepened up to a depth of 5 feet. Due to deepening of Pond, the existing water intake capacity level of Pond was increased to 38.00 ML. from 26.52 ML. The work was carried out to increase the water holding capacity of the Pond, in order to protect ground water table of adjacent villages. The contention of the applicant is not correct and the retaining wall of 323 meters length has been constructed on the existing tank bund in order to strengthen the bund and to prevent encroachment.

The 3rd respondent filed a reply affidavit reiterating the contentions raised by the 2nd respondent. Additionally it is stated that the park is being constructed outside the retaining wall of the lake and the general public are dumping solid waste in the lake and in order to beautify and restore the lake, the 3rd respondent has undertaken the works. Desilting works were already commenced and the capacity of the water body has been increased.

It is specifically contended that the construction of the retaining wall and establishment of the park outside the retaining wall are only to protect and to beautify the tank and to save it from future encroachments.

Learned counsel appearing for the applicant and respondents were heard.

The applicant originally approached the Hon'ble High Court of Madras by filing Writ Petition No. 19130 of 2009, on the allegation that the Pond has been encroached by the public, with a prayer to remove the encroachment. The Writ Petition was disposed of by the Hon'ble High court with a direction to the authorities to consider the representation filed by the applicant, for the removal of encroachers. It is admitted by the applicant that pursuant to the directions 59 encroachers were already removed. The applicant had again approached the Hon'ble High Court of Madras by filing Contempt Petition No. 802 of 2010 for taking action against the 2nd respondent for contempt of Court with the allegation that all encroachers are not removed and 20 more encroachers are still to be evicted. It is also not disputed that accepting the case of the 2nd respondent that all the 59 encroachers were removed, the Contempt Petition was disposed of. If case of the applicant is that there are further encroachers to be removed, remedy of the applicant is to approach the Hon'ble High Court of Madras. In any case no relief for evicting the encroachers is claimed in the application and the only relief sought for is to remove the debris filled in the tank for constructing the park and to desilt and remediate the tank.

The main allegation of the applicant is that the respondents are filling up part of the tank by dumping debris, for construction of the Park. Third respondent filed affidavit dated 26.10.2016 clarifying that the retaining wall is not built on the tank as alleged but on the edge of the water holding area and embankment. It is also stated that it had only helped water management and retaining wall is a common measure undertaken to protect water bodies. The main thrust of the case of the applicant is filling up a part of the water body to convert it into a Park. The affidavit further shows that the idea of construction of the Park has now been dropped. The relevant portion of the affidavit reads as follows:

" It is submitted that by Order dated 28.7.2016, the 2nd respondent herein had cancelled the remaining work under the above mentioned project which included the development of a park for the purpose of beautification of the area surrounding the pond. It is reiterated that no park or other amenities connected to the same were built on the embankments or in the surroundings of the pond and the said works regarding the same have been dropped by the respondent authorities. "

In view of the said statement, we find no ground for the apprehension of converting a part of the water body into park or filling up a portion of the water body for converting it as a park. The said submission of the 3rd respondent is recorded.

In such circumstances, applicant is not entitled to the relief sought for. At the same time, respondents cannot be permitted to destroy the tank/ pond or reduce its water holding capacity. While disposing the application we issue the following directions:

(i) In case it is required, the water body be deepened further based on the extent of catchment area, average annual rainfall and flow of rain water into the water body so that the water holding capacity of the water body is further increased and the water is stored round the year to effectively recharge the ground water table in the area.

(ii) If there are any obstructions to the storm water drains/ channels/ nalas that carry rain water into the tank, they should be removed and the drains/ channels/ nalas are regularly maintained to ensure smooth flow of rain water into the tank so that every drop of rain water is harvested.

(iii) Necessary measures shall be taken for preventing people from throwing solid waste or letting sewage into the tank. Sign boards, warning imposition of penalty for violating the rules, shall be erected at all the vantage points around the tank as per the provisions of Solid Waste Management Rules, 2016.

The Original Application is disposed accordingly with no order as to costs.