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Water bodies are “res communes” – all G.Os quashed in regards to the encroachment of wat

T.K.SHANMUGAM V.THE STATE OF TAMILNADU & ORS. W.P.No.1294 of 2009 – 30 October 2015.

The bench comprising of Hon’ble Chief Justice Sanjay Kishan Kaul, Justice M.Sathyanarayanan, and Justice T.S.Sivagnanam at the High Court of Madras quashed government orders regularising encroachment of water bodies.

A PIL was filed to grant Patta and regularize the encroachment in certain survey numbers in Korattur village Ambattur Taluk in terms of G.O.Ms. No.854, dated 30.12.2006, read with G.O.Ms. No.579, dated 03.10.2008.

Whether the provisions of the Tamil Nadu Protection of Tanks and eviction of the encroachment Act 2007 in any manner dilute the wider compass of the observations made in L.Krishan’s case or any judgments of the Hon’ble Supreme Court requiring protection of water bodies?

The main contention of the petitioners was that the benefit of the G.O.Ms.No.854 should be extended to the encroachers, their encroachments to be regularized after reclassification of the land as has been done to similarly placed persons, failing which it would be discriminatory and violative of Article 14 of the Constitution of India. The petitioner would further state that the water body has fallen to disuse, it is open to the Government to grant patta to the encroachers and if their occupation is not regularised, they would be put to great hardship and would be rendered homeless. In pursuance to the judgment of the Division Bench of this Court in L.Krishnan’s case, the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, came into being. This Act provides for checking encroachment and eviction of encroachment in tanks which are under the control and management of the Public Works Department. It is, thus, submitted that such of the tanks which do not fall within the purview of the Act cannot be subjected to requiring protection from encroachment and this, persons like the petitioner cannot be evicted.

A Public Interest Litigation was filed by one Mr.L.Krishnan seeking a direction against the Government and the Revenue Officials to remove encroachments made by certain private parties in an Odai Poramboke in Villupuram District. While disposing of the Writ Petition, the Division Bench pointed out that ponds, tanks, and lakes have been an essential part of the people’s natural resources, however, in recent years, these have been illegally encroached by unscrupulous persons and this had an adverse effect on the lives of the people. Further, it was pointed out that day in and day out, many petitions are filed by way of Public Interest Litigation alleging encroachments into ponds/tanks/lakes/odai Poramboke, etc., in different parts of the State, more particularly in villages. Having regard to the acute water scarcity prevailing in the State of Tamil Nadu, it was pointed out that a time has come where the State has to take some definite measures to restore the already earmarked water storage tanks, ponds, and lakes as disclosed in the revenue records to its original status as part of its rainwater harvesting scheme.

During the relevant time, the Sivakasi Region Tax Payers Association filed Writ Petitions challenging the Government Orders in particular in G.O.Ms.No.854, which paved way for regularising encroachments on Government lands including lands classified as watercourse Poromboke and the validity of the Government Order was upheld by judgment dated 29.04.2008, with certain observations. The Division Bench took note of the various decisions including the decision in the case of Sivakasi Region Tax Payers Association (supra), disposed of the Writ Petitions without declaring the provisions of the Act as unconstitutional, since no opportunity is given and held that there is nothing in the Act which excludes the principles of natural justice, the Act (Tank Act) does not specifically indicate that the encroachers do not have right to be heard and issued certain directions.

The State was reminded of its responsibility in holding water bodies as it is held in public trust and much weightage should be given for protecting them. In the case of Jagpal Singh wherein the supreme court ultimately, gave direction to all State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of the gram sabha/grama panchayat/poramboke/shamlat land and these must be restored for the common use of the villagers of the village. Thus the government of Tamilnadu is in contempt of the order passed by the Hon’ble  Supreme court. The Hon’ble Supreme Court further observed that when a pond is falling to disuse, the Government including the Revenue Authorities should bestow their attention to develop the same. Their Lordships further held that the Government Orders issued by the various State Governments permitting allotment of Grama Sabha lands to private persons and commercial enterprises to be illegal and to be ignored.

The court also held that if the Government is interested in allocating the poor and downtrodden, it should bring out a scheme for rehabilitating them and not to condone their act of trespass, reclassify the law and then grant patta to those encroachers.

The provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, does not in any manner dilute the observations/directions issued in L.Krishnan vs. State of TamilNadu reported 2005 (4) CTC 1, as quoted with the approval by the Hon’ble Supreme Court in Jagpal Singh vs. State of Punjab, reported in (2011) 11 SCC 396, and the observations contained in paragraph 20(d)(e) of the judgment of the Division Bench in T.S.Senthil Kumar, vs. Government of Tamil Nadu, reported in 2010-3-MLJ-771 and that the tanks which do not fall within the purview of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, also require protection from encroachment and any encroachment made in such tanks or water bodies have to be removed by following the provisions of the Tamil Nadu Land Encroachment Act, 1905.

Moreover, the court categorically held that the encroachers and trespassers into Government property and theory of adverse possession would not be attracted and court not inclined to accept that because a water body has put to disuse that would be a ground to regularize encroachments.

After elucidating Public Trust Doctrine held that “when water bodies vest with the government as to act in the capacity of a trustee and if it has failed to protect these water bodies it amounts to breach of Public trust” and quashed all the G.O’s mentioned above with particular reference to encroachments in water bodies are in clear violation of the Public trust Doctrine.

Deeksha Nagaraj 

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