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Judgment
P.K. Misra, J.—The petitioner in W.P. No. 536 of 2004 is a Society registered under the Societies Registration Act, 1975. It has been
entrusted with the job of maintaining an area of 2 1/2 acres on the bank of Lake Vandiyur Kanmai. It is claimed that such land has been classified
and reserved for the purpose of walking at a stretch of 1 1/2 kms. Such area has been laid with cement slabs to facilitate for walking. Such facilities
are availed by many persons. It is further stated that the District Collector by his proceedings dated 28.9.1995 in K14./147035/95 has handed
over an area of 8.5 kms to the petitioner for the purpose of maintaining walkers area. Subsequently, another District Collector of Madurai had
allowed fourth respondent to put up some permanent structure to be used as skating rink. It is alleged that such steps have been taken without
following any prescribed procedure. It is claimed that if such superstructure is permitted, it would affect the entire atmosphere and environment in
respect of the walking public in and around the said area. It is further alleged that the entire area had been reserved for park and for the purpose of
being used as walking area and the Public Works Department had spent about Rs. 2.5 crores by erecting a fence around the area and by laying
down the cement slabs in the walking area. It is alleged in such writ petition that if the park area is utilized for some other purpose, the classification
and characteristic of the land would be flouted and would affect the public in general. On the basis of such allegations, the following prayer has
been made in WP. No. 536 of 2004:
... issue a Writ of Certiorarified Mandamus or any other appropriate writ or order or direction calling for the records of the first respondent by his
proceedings in Na.Ka.No.K. 14/147035/95 dated 28.09.1995 and to direct the first respondent not to change the characteristic of the park area
and the walking area.
The District Collector, Superintending Engineer are the respondents 1 and 2 in the said writ petition and Respondent No. 3 is the contractor, who
was undertaking the work and Respondent No. 4 is the licensee for the Skating Rink.
After such writ petition was entertained'' and notice was issued, the matter was listed on 13.10.2004, on which date, a learned single Judge of
this Court, called for a report from the District Collector relating to various aspects raised in such writ petition. At that time, the leaned single Judge
has also recorded the submission made by the petitioner that a comprehensive writ petition would be filed relating to various matters connected
with maintenance and prevention of encroachment in Vandiyur lake. Thereafter, the very same petitioner has filed W.P. No. 3391 of 2004.
In such writ petition, apart from highlighting the fact that a portion of the area was being given to Respondent No. 4, the factum of encroachment
in other parts of the lake has also been highlighted. It was also averred in such writ petition that members of the petitioner club have met the
subsequent District Collector and requested him not to allow any individual to establish skating rink on the tank bund which would pave way for
further encroachment. The petitioner has also stated about the letter dated 27.9.2004 addressed to the District Collector requesting him to remove
the encroachment on the Vandiyur lake and Sathalaru Channel, which is the main source for feeding water to the Vandiyur lake. Granting
permission for skating rink is described as violative of the agreement dated 28.9.1995 between the petitioner and the administration. It is further
alleged that since there is no depth in the Vandiyur lake, storage capacity of the lake is reduced and even after heavy rains, the water does not
remain stored, but flows out at different places. It is also stated that there is a proposal to utilize such lake for fishing and planting cucumber plants
which would affect all the residents around the lake, as there is likelihood of water scarcity. It has been further stated that after construction of
skating rink, gates in the park area are kept opened throughout the day and fencing had been removed and the ignorant public have been entering
into the park area and has been using as open lavatory and the washerman are using water for washing cloths. The place, which was quiet, solemn
and clean, has become a noisy, dirty and unhealthy place. It has been therefore asserted that Vandiyur Park should not be used for any other
activity as the characteristic of the park would change totally which will be in violation of the terms of the agreement between the respondents 1
and 2 and the petitioner. On the basis of such averments, following prayer has been made:
... for issuing a writ of mandamus directing the District Collector, Commissioner, Madurai Municipal Corporation and the Superintending Engineer,
Public Works Department to remove all encroachments in the Vandiyur lake and in the feeding channel Sathayar, to desilt the Vandiyur lake and
the feeding channel Sathayar, to remove the skating rink constructed inside the southern part of the tank, to implement all the terms and conditions
of the District Collector proceedings dated 28-9-1995 in K-14/147035/1995, to take action on the letter of the petitioner''s club dated
27.9.2004.
While the matter stood thus, W.P. No. 1514 of 2006 has been filed as a public interest litigation by K.K. Nagar Resident''s Association. The
District Collector and the Superintending Engineer, Public Works Department are the respondents in such writ petition. The main averments made
in such writ petition are to the following effect:
There was heavy rain in the middle of November, 2005, whereafter various areas such as LIG Colony, K.K. Nagar, Anna Nagar, Gomathipuram,
Melamadai were subjected to water inundation. This was on account of the fact that Vandiyur lake had not been properly maintained and there has
been many encroachments in Vandiyur lake as well Sathalaru channel. It has been asserted that if the lake would have been properly maintained,
desilted, there would not have been so much of flood in the above areas. The depth of Vandiyur lake was equal to the ground level of the outside
area and that is the reason why the flood water was not stored inside the lake and inundated all the surrounding areas. It has been stated that the
choked channels, heaps of sand, bund inside the lake and thousands of grown up trees are the reasons for the suffering public. It has been further
alleged that in several places there have been encroachment. The affidavit also indicates that P.W.D has allowed a big skating rink to be
constructed inside the lake, which has occupied about 20,000 sq.ft of the water spread area and such skating rink is under the control of an
individual, who is the sole beneficiary of the encroachment as he collects in thousands from affluent children who come and skate in the evening. It
is further stated that since there is no toilet facilities, the boys coming to skating are using the lake as public lavatory and the snack vendors are
adding to the pollution of the lake and spoiling the environment. It is further stated that the petitioner has sent telegram to the Collector on
29.11.2005 requesting him to take measures like to remove encroachments, deepen the Vandiyur lake, but no steps had been taken. On the
aforesaid averments, prayer in such public interest litigation petition is to the following effect:
... issue a writ of Mandamus or any other appropriate writ or order or direction in the nature of writ of Mandamus directing the 1st and 2nd
respondents to remove all encroachments in the Vandiyur lake and its feeding channel Sathalkaru, desilt and deepen the tank and the channel, clear
and remove the bushes and trees sand heaps and bunds inside the Vandiyur lake, to take action on the telegram of the petitioner to Respondent
No. 1 dated 29.11.2005.
Even though no formal counter has been filed on behalf of the District Collector and P.W.D officials, two reports have been submitted by the
District Collector as already noticed. A counter affidavit has been filed by Respondent No. 4 in W.P. No. 536 of 2004.
In the two reports furnished by the District Collector, the following aspects have been highlighted:
Vandiyur Tank is a major irrigation tank under the maintenance of the Public Works Department, which originally a rainfed tank, but subsequently
this was integrated as a system tank of the Periyar Irrigation System. The Tank was originally spread over an extent of 691.26 acres in Vandiyur,
Melamadai, Uthankudi, Managiri and Tallakulam villages of Madurai North Taluk. The original Ayacutof the tank was Acres 963.56, but an extent
of 329.10 acres has been converted into house sites and the tank has an ayacutof 634.46 acares. It is indicated that an extent of 6.94 acres in
Vandiyur village is either under the encroachment or other use. It is further indicated that the skating rink and the open area (obviously surrounding
the skating rink), extents to 0.55.0 acres. The report further indicate that 329.10 acres had been converted into house sites. It has been further
indicated:
Source of supply:- The tank has a combined catchment of 37.89 sq.miles and free catchment of 4.00 sq.miles spread over from Sirumalaiyar
reserve forests. Since its integration with the Periyar system the supply is supplemented by IXth branch channel of the Periyar Main Canal also
through its sluice No. 30. At present the tank receives supply through the Sathaiyar Odai, Eachanodai below the Palayampatti tank and 9th branch
canal of the Periyar Main Canal. The feeder channels of the tank are in good condition and free from encroachments. None of the channels are
obliterated. The encroachments found in the tank area do not hinder the flow of water to the tank. In fact none of the encroachments are in the
course of the channels. The original capacity of the tank was 106.03 mcft. But over the years the capacity of the tank was reduced to 66.00 mcft.
due to silting. During the year 1998-99 the tank was desilted and 11.00 mcft of silt was removed and deposited on the foreshore as a bund
suitable for conversion as a diversion road parallel to the Madurai-Melur Road. The entire bunds of the tank also were raised from 3.00 metres to
5.00 metres. Since more than l/3rd of its ayacut has been converted as House sites the present capacity of the tank is sufficient to meet the
irrigation requirement.
Improvements:
The lands adjacent to the Eastern bund of the tank have been converted as residential areas. The K.K. Nagar and Anna Nagar extension areas of
Madurai City are on the western side of the Tank. While the World Tamil Conference was conducted in Madurai during the year 1980 there was
a suggestion to beautify the tank to provide recreational facilities to the urbanites of Madurai city. In a subsequent meeting conducted by the then
Collector on 8.7.82 it was decided to beautify the tank and its bordering land into a full fledged recreation complex. Messrs. Kirloskar Consultants
and external agency was commissioned to study the feasibility of the decision and submit a report. The consultants made suggestions for the
improvement of the tank in two phases. Phase I suggests to form a landscaped garden on the western bank of the tank in the area adjacent to the
Madurai-Sivagangai Road and construction of a Boating jetty, construction of a swimming pool and an indoor stadium. Phase II suggests the
creation of an island in the center of the Tank and construction of a Mandapam, Restaurant and laying of lawns. It was proposed to ply boats from
the jetty to the central Mandapam when the tank is full.
The first phase of the plan has been implemented by the Corporation of Madurai on the Western Bank of the Tank in an area of 8.25 Acres
earmarked for this purpose. A landscaped garden was laid and the boating jetty also has been constructed. The Government have during the year
1998-99 allocated Rs. 2.50 crores for the desilting of the tank and improvements of the park. The PWD has desilted the tank and formed a bund
across the foreshore of the tank with the desilted earth removed from the tank. The bunds of the tank also were widened and strengthened.
Improvements were also carried out to the existing park. The swimming pool and the indoor stadium which form part of the phase I of the
programme have not yet been constructed. With a view to provide entertainment to the children and encourage skating which is a new sport
among youngsters Madurai construction of a skating rink in the place earmarked for the indoor stadium was taken up by the District
Administration. Funds to the tune of Rs. 30.00 lakhs were generated under the ""Namakku Naame"" scheme. Under this scheme the Public have to
contribute 25% of the cost of the scheme. Accordingly the District Administration raised donations towards public contribution. One Messrs.
Chakra Roller Skating Association donated Rs. 1.25 lakhs towards public contribution. Building materials worth Rs. 6.25 lakhs'' were secured and
provided by the District Welfare Fund which is a Society constituted by the Government under the Chairmanship of the District Collector. The
balance of Rs. 22.50 lakhs was provided by the District Administration under this scheme. The construction of the Rink is being carried out by the
PWD. It is purely a Government project wholly owned and executed by the Government. About 90% of the civil works have been carried out.
The remaining work is to be completed. Phase II of the improvements also are to be carried out for which allocation of funds by the Government
are awaited.
In the subsequent report it has been indicated that encroachers within the limit of Vandiyur Bit. I were evicted and the encroachers on the supply
channel were also evicted. It has been further indicated that the allegation that one Kalyana Mandapam has been constructed by encroachment
was not correct. The fact that some civil proceedings were pending before the Court has also been indicated in such report.
A memo has been fried on behalf of the Walkers Club raising certain objections relating to the first report of the District Collector. In such
memo, it is indicated that there are certain other encroachments. It is also indicated that there has been no plan approval for building a skating rink.
In the counter affidavit filed on behalf of fourth respondent in W.P. No. 536 of 2004, it is indicated that in fact the fourth respondent is a
registered Association and not an individual. Such fourth respondent Association encourages the activities relating to roller skating and is involved
in many such competitions. It is stated that the proceedings dated 28.9.1995 does not reveal the extent of area handed over to be maintained by
the petitioner''s club. It is further stated that the petitioner''s club has not maintained the park area given to it properly. It is further stated that
skating rink has been maintained by Public Works Department and only certain contributions have been made by public and fourth respondent has
also made certain contribution. It is further stated that fourth respondent had filed a petition before the District Collector requesting to allocate
place for indoor skating rink within the Vandiyur park under Nammaku Namae Thittam. The Association has contributed Rs. 1.25 lakhs and has
also raised funds from the general public, but the major portion has been contributed by Public Works Department. It has been also stated that the
petitioner''s club wanted to maintain the skating rink, but since such permission has not been given, the petitioner''s club out of frustration and
vengeance, filed the writ petitions. The activities in the skating rink do not at all disturb the walkers in any manner and the skating rink is useful as a
sport not only for the children but also for adult people.
We have heard the learned Counsel appearing for the Walkers Club, which is the petitioner in W.P. Nos. 536 of 2004 and 3391 of 2004,
learned Counsel appearing for K.K. Nagar Resident''s Association, which is the petitioner in W.P. No. 1514 of 2006 and the learned Counsel
appearing for Respondent No. 4 in the two writ petitions filed by the Walkers Club and also the Special Government Pleader on behalf of the
official respondents.
We have perused the various documents filed by the counsel. On going through the various materials on record and more particularly the
reports submitted by the District Collector as well as the typed-set of papers, it is apparent that the skating rink has been constructed by the Public
Works Department with some contribution from public as well as Respondent No. 4, which is an Association. There is no concrete material to
indicate that in fact any particular portion of the water spread area of the lake has been actually filled up for constructing the skating rink. On the
other hand, it is apparent that the height of the area on which skating rink was constructed was more or less equal to that of the surrounding area.
The area and the extent on which skating rink is constructed, which is 0.55.0 acres, (about half an acre) can be considered as a negligible portion.
In the two writ petitions filed by the Walkers Club, most of the allegations revolve round the advisability of having a skating rink. Initially these
two writ petitions have been filed as affecting the right of the Walkers Club and it has been alleged that the agreement dated 28.9.1995 between
the Walkers Club and the District Collector had been violated. From the materials on record it is apparent that at one stage the Walkers Club
wanted to maintain the skating rink itself and it had made a representation to that effect to the Collector that either the officials should maintain the
rink or the area may be handed over to the Walkers Club for maintaining the skating rink. At that stage, it was not the stand of the Walkers Club
that existence of the skating rink itself has become a threat to the proper maintenance of the lake.
In the writ petition filed by K.K. Nagar Resident''s Association, much more concern is found reflected for the proper maintenance of the lake
and for desilting. It has been highlighted in that writ petition that on account of improper maintenance of the lake, the surrounding areas were
inundated due to heavy rains in 2005. Incidentally, of course, it has been stated about the existence of the skating rink. However, in all the writ
petitions it has been stated that the skating rink is being used as a commercial venture by Respondent No. 4, which aspect is being denied by
Respondent No. 4
From the reports of the District Collector it appears that some encroachments have been removed, but the possibility of any other existing
encroachment being there cannot be ruled out. Of course there is always possibility of future encroachment also. From the photographs filed on
behalf of the writ petitioner in W.P. No. 536 of 2004 as well as the other writ petitions, it prima facie appears as if the connecting channel to the
lake has narrowed down at some places. However, it is difficult to express any definite opinion on this aspect without the benefit of proper
measurement.
Of course, it is apparent that the skating rink is on a negligent portion abutting the nearby tank bund. However, from the photographs, it is
apparent that the inner area of the tank is also filled up either due to uncontrolled growth of weed and even due to deposit of soil, obviously over a
long period of time. From such materials, it is definite that effective storage capacity of the natural lake has been considerably reduced. Though it is
not possible to come to a definite conclusion at this about some waste water from outside coming inside the lake, such a possibility in future cannot
be ruled out.
Keeping in view these aspects, we feel that the appropriate authorities, namely, the District Collector as well as the Public Works Department
authorities and the Madurai Municipal Corporation should consider and take appropriate action on the following aspects:
(i) To locate and take effective steps for removal of encroachment on the Vandiyur lake, including on the bund area of the lake.
(ii) To locate and take effective steps for removal of any encroachment on the connecting water channel Sathalar.
(iii) To take effective steps for removal of weeds and also to deepen the existing lake area by digging and desilting. For the aforesaid purpose, the
official respondents are also required to take sufficient financial assistance from the State Government and even though the State Government is not
a formal party (of course the District Collector is a party), it is expected that all necessary aid would be given by the State Government to remove
the weed and deepen the lake so that the water storage capacity would be considerably increased.
(iv) To examine the possibility of water of the lake being contaminated by entry of waste water from outside and to prevent such waste water
entering the lake by any suitable method including the construction of water/sewage treatment plant, if necessary.
(v) To appoint an expert committee to examine whether the existence of skating rink is likely to inundate the surrounding area in future. If it is found
that skating rink does not adversely affect, such staking rink shall be allowed to continue as it is being used by many children. However, the
authorities should ensure that such rink is affordable so that the wider section of public can utilize the same. In case the skating rink is allowed to
continue, the question whether it should be maintained by the Government (official respondents) directly or by the fourth respondent Association is
a matter left to the discretion of such authorities. However, in case it is decided that such maintenance should be by the Government, amount if any
incurred by the fourth respondent for its construction may be refunded. It is made clear that this direction should not be construed as expressing
any opinion on this aspect and the matter has to be considered and finalised by the first respondent and if it is found on review by the expert
committee that existence of the skating rink is a threat to the proper maintenance of the lake, the District Collector may take steps for removal of
the skating rink.
(vi) Whenever it is felt necessary to remove any encroachment, it goes without saying that necessary steps should be taken by following the
appropriate procedure of law, obviously by giving opportunity of hearing to the persons likely to be affected.
Subject to the aforesaid observations and the directions, all the three writ petitions are disposed of. No costs. Consequently, the connected
miscellaneous petitions are�closed.