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EVP Estates & Properties Development Ltd., Rep. by its Chairman E.V. Perumalsamy Reddy, Chennai v/s Tamil Nadu Public Works Department, Rep. by its Chief Engineer, Chennai

    W.P. No. 40329 of 2016 & W.M.P. No. 34404 of 2016
    Decided On, 23 September 2021
    At, High Court of Judicature at Madras
    For the Petitioner: S.R. Raghunathan, Advocate. For the Respondent: K.M.D. Muhilan, Government Advocate.

Judgment Text
(Prayer: Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Mandamus, forbearing the respondents from constructing a Canal in the land in S.Nos.1/1, 1/2A, 1/2B and 2/2 in Nemilicherry Village and S.No.35/1 in Karunakaracherry Village, Poonamallee Panchayat, Poonamallee Taluk, Thiruvallur District, belonging to and owned absolutely by the petitioner.)

1. The relief sought for in the present writ petition is to forbear the respondents from constructing a Canal in the land in S.Nos.1/1, 1/2A, 1/2B and 2/2 in Nemilicherry Village and S.No.35/1 in Karunakaracherry Village, Poonamallee Panchayat, Poonamallee Taluk, Thiruvallur District.

2. The writ petition is filed based on the apprehension by the petitioner / EVP Estates and Properties Development Limited. It is contended by the petitioner that the Tamil Nadu Public Works Department officials were digging up a portion of the land to construct a Canal and the said property belongs to the petitioner.

3. The petitioner has stated that they sent representation to redress their grievances and to stop further digging up the property belongs to the petitioner. However, the respondents refused to accept the objections. Thus, the writ petitioner is constrained to move the present writ petition.

4. The counter filed by the respondents during November 2016 would reveal that the petitioner has suppressed the fact that there has been a water course in S.Nos.1,2 and 9 of Nemilicherry Village of Thiruvallur Taluk, which is owned by the petitioner herein to carry the water discharged from the sluice No.2 of the Tirunindravur tank through a channel classified as such in the revenue records and in S.Nos.10/3, 11/2, 27/3, 29 and 37 of Nemilicherry Village of Tiruvallur District and enters into the limits of S.Nos.1,2 and 9 of the same village, which belongs to the petitioner herein. It is a natural course available for the past several decades which has been used by the agriculturists depending on the Tirunindravur tank for irrigation as a customary right and privilege. In view of the heavy and torrential rain that battered the Tiruvallur, Kanchipuram and Chennai Districts in November and December 2015, there was flooding in Annai Indra Nagar Annex, EVP Town, Padmavathy Nagar and Devi Nagar in Nemilicherry Village, it is the duty of the respondent Department to desilt, widening and other sine qua non works in the water bodies to facilitate easy draining of any surplus water from the water sheds from the upland so as to avoid recurrence of such incidence in the event of heavy rain during the current North East Monsoon.

5. Hence, the natural water course available in the patta land of the petitioner for irrigating and draining the water collected in the upland was desilted and trimmed to facilitate easy draining of water of the tank, which caused inundation due to backing up in the months of November and December 2015. The respondents have further elaborated regarding the encroachment in certain locations in that area in Paragraphs 5, 7 and 8 as under:

“5. The Tamil Nadu Government enacted the Tamil Nadu Protection of Tank and Eviction of Encroachment Act, 2007 (Act, 2007) for the purpose of providing measures for checking the encroachment, eviction of encroachment in tanks which are under the control and management of Public Works Department, protection of such tanks and for matters incidental thereto and this Act plays dual role for the protection of tank and for eviction of encroachments and the terms 'field channel' and 'field drainage' in this Act has been defined as follows:

“field channel' means a channel existing or to be constructed to receive and distribute water for irrigation;

'field drainage' means a water course which discharges waste or surplus water from the land;”

As such both the terms 'field channel' and 'field drainage' form part and parcel of the Tirunindravur tank system for the purpose of protection as envisaged in the Act, 2007, if not for evicting any encroachment and the Act, 2007 did not specify the location of the course of the field channel or field drainage whether it should be in Government land or in patta land and there was nothing wrong in the desilting work carried out in the existing channel course which runs through the patta lands of the petitioner herein. The flow chart of the nature of the channel would disclose the very fact that from the origin point from Sluice No.2 of the Tirunindravur Tank, the course of the channel is in the poromboke land of the Government in Tirunindravur village and also in Nemilicherry village in S.Nos. 37, 29, 27/3, 10/3, and 11/2. After traversing in the patta land of the petitioner in S.Nos.9, 2, 1 of Nemilicherry Village, the course again enters into Government land in S.Nos. 347, 345, 100, 102, 110 and 77 of Thandarai Village and finally drains into River Cooum. Hence, for all purposes, the channel course has been running through a small stretch of the private lands of the petitioner which the agriculturists have been using for irrigating their lands and it is only a field channel as per the scope and ambit of the Act, 2007. From the adangal of the concerned village Administrative Officer, it could be easily asserted that the petitioner herein had purchased the lands and unauthorizedly put up lay out for selling them for the purpose of house constructions. The adangal also states that patta lands are now housing plots. The petitioner had also indulged in converting the agriculture lands into housing plots thus changed the land use without any authority. The rules require that any person seeking conversion of land must apply to the authorities like the Director of Country and Town Planning or the Chennai Metropolitan Development Authority and the authorities after making the inspection of the site would refer to the respondent's department for technical opinion since the water course is running in the patta lands. This respondent's department would, after making the inspection and after detailed study of all the aspects including the hydrological features of the tank, level of the area and the possibility of flooding in the event of heavy rainfall, surface collection of runoff realized from the rains, etc., would suggest the conditions to be imposed before according the permission for the layout. This respondent's department can even recommend to the planning authorities not to give any permission for conversion of the land use or not to approve the lay out. Hence, the petitioner is very much aware of running of the channel course in his patta lands and tampered with the same in course of developing the lands as housing plots and makes a vain bid to crave mercy of this Hon'ble Court as if the officials of this respondent's department are digging or excavating a new canal which is nothing but a white lie.

7. In Olga Tellis V. Bombay Municipal Corporation reported in AIR 1986 SC 180, it was asserted by the Hon'ble Supreme Court that the high purpose which the Constitution seeks to achieve by conferment of fundamental right is not only to benefit the individual but to secure the larger interest of the community. Hence, the public at large could not be deprived of their fundamental right in the usage of the surplus course which they have been enjoying traditionally for generations together and the petitioner cannot interfere in the rights of the public and prevent the respondent's department officials from carrying out the desilting works in the course only on the ground of the same lies in the patta land. The petitioner ought not have closed the course which would cause much damage to the agriculture fields and surrounding housing colonies by inundation when the surplus could not finds its way to drain into the River Cooum finally. Yet all, the petitioner is attempting to innovate a story as a new cannal is excavating a new channel course. Since the petitioner himself has admitted that he is using the land for agriculture while the fact is that the petitioner had developed the agriculture lands as housing plots as could be seen from the adangal of the Village Administrative Officer, Nemilicherry, he ought to have realized the importance and significance of the channel course. The petitioner ought not have converted the agricultural lands which he purchased in the year 2006 into housing plots while the adangal of the Village Administrative Officer confirms the present use of the lands as 'housing plots' flouting all acts and rules means for this purpose. It seems that the petitioner is attempting to claim ransom as compensation by falsely implicating the desilting work carried out in the channel course, as if a new excavation of the canal is made. The cited case of TANGEDCO is totally felt irrelevant to the present case, since no new canal is excavated and only desilting work is carried out in the existing course whereas in the case of laying the electrical post, it is newly erected where there was no electrical post already in the land and the activities connected with the desilting and restoration of the original width of the surplus course cannot be attributed as a new canal.

8. It is, therefore, stated that the officials of this respondent's department had only undertaken the desilting and trimming works of the channel course which is very much available for decades together and this is the only natural course available to discharge the water from the tank for irrigation. The desitling and other related works were found inevitable in the wake of the sad experience realized due to inundation of water when the tank was brimming during the extra-ordinary very heavy rain during November- December, 2015 in and around the areas of the course in Nemilicherry village as per the statement of the Village Administrative Officer, Nemilicherry so that such recurrence will not occur in the current monsoonal rains. The petitioner had falsely attributed the desilting and channel trimming works carried out in the existing surplus course as if a new canal is excavated while the fact remains that the petitioner had reduced the width of the course in the portion of his land for developing the land as residential plots as could be seen from the adangal of the Village Administrative Officer suo motu without approval from any of the related departments, which ought not to have been done to the detriment of the other public and changed the character of the land use unauthorizedly. By filing this writ petition, the petitioner is attempting to claim ransom as compensation as if a new canal is dug in his patta land while it is factually and actually incorrect.”

6. The petitioner has filed a reply to the counter, defending the allegations stated in the counter affidavit by the respondents. The respondents filed a re-joinder, further explaining the fact that classification of land as mentioned by the petitioner in the revenue records. The flow chart of the channel course as stated in the counter is as follows:

7. It is further stated that the running of this course before entering into Nemilichery village and its confluence with River Cooum at Soranchery village ought to have been in part of the Government land and patta lands in Nemilichery village since, the course cannot have an interruption in the middle in the natural flow direction. The petitioner could have realized the natural flow direction and its importance has been using the land for agricultural purposes and since the petitioner had developed the agricultural lands and the channel poramboke for making housing plots, he is very particular in keeping the course closed. By this activity, the petitioner is preventing other lands in this locality to use the water for irrigation let from the tank which is highly objectionable. It is stoutly denied that this respondent is seeking to construct or dig a new canal as contended as alleged by the petitioner in the reply on the counter affidavit. Restoration of any canal, channel or any other water course including a channel course can be made only by removing the earth/slit and other obstructing materials in the water course which were deposited in course of time. The possibility of closing or leveling the course initially by the petitioner for making the housing plots cannot also be ruled out. It is a fact that the surrounding areas were flooded during the monsoonal rains in November and December 2015 and there was about 8 ft water inundating the adjacent locality. The certificate from the Village Administrative officer will stand as a solid proof that the course has to be reclaimed to prevent such recurrence in future. The existence of the channel is justified on the ground that the NHAI has constructed a culvert in S.No.353 adjacent to the petitioner's land for facilitating the free flow of water along the course in existence which was obstructed by the petitioner in his patta land.

8. Perusal of the pleadings would reveal that the authorities have taken steps to ensure free flow of water through natural course. It is further identified by the authorities, some mistakes had already been committed in the revenue records. If any such mistakes are identified, all appropriate actions are to be taken to protect the water bodies and to ensure free flow of water through

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Canal. The encroachers in water bodies are to be evicted by following the procedures as contemplated under the Act. 9. In respect of the relief sought for in the present writ petition, such a relief in the nature of injunction cannot be granted as the authorities have not infringed the rights of the petitioner. Contrarily, they have taken steps to ensure free flow of water during rainy seasons and to protect the water bodies and the natural course of water in that particular area. While doing so, the Government is empowered to initiate all further actions and to ensure that the public interest is protected. This being the power conferred on the Government, the petitioner cannot seek such a blanket injunction in a writ proceedings, stating that the authorities should not interfere, when there is a dispute in respect of the land belongs to the petitioner. In this regard, the authorities competent are bound to verify the revenue records and initiate appropriate action in the manner known to law. As far as the encroachments are concerned, the said encroachments in water bodies and the Government lands are to be evicted by following the procedures. The Government is protecting the natural water course, which is already in existence The said action cannot be said to be illegal and therefore, the relief as such sought for cannot be granted. 10. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.