1

BEFORE THE NATIONAL GREEN TRIBUNAL

SOUTHERN ZONE, CHENNAI

Application No.145 of 2015 (SZ)

IN THE MATTER OF:

I.H. Sekar
Social Worker,
Founder & Managing Trustee of Nature Trust,
No.20, Dr. Nanjunda Rao Road,
Injambakkam, Chennai-600 115.
... Applicant(s)

AND

1. The Secretary,
Department of Forest and Environment,
Government of Tamil Nadu,
Fort St. George,
Chennai-600 009.

2. The Secretary,
Department of Revenue,
Government of Tamil Nadu,
Fort St. George,
Chennai-600 009.

3. The Member Secretary,

Chennai Rivers Restoration Trust,
No.6/103, Dr. D.G.S. Dinakaran Salai,
Raja Annamalaipuram,
Chennai- 600 028.

4. The District Collector,

Collectorate of Kanchipuram,
Kanchipuram District.

5. The Regional Transport Officer,

The Regional Transport Office,
Solinganallur, Meenambakkam,
Kanchipuram District.
(Impleaded respondent No.5 as per the order
dated 26.07.2016)

...Respondents
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Counsel appearing for the Applicants :

Mr. V.B.R. Menon

Counsel appearing for the Respondents :

Mr.M.K. Subramanian, E. Manoharan and

P. Velmani for R1 to R5.

J U D G E M E NT

PRESENT:

HON’BLE JUSTICE M.S.NAMBIAR, JUDICIAL MEMBER

HON’BLE SHRI P.S. RAO, EXPERT MEMBER

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Delivered by Hon’ble Justice M.S.NAMBIAR, Judicial Member

Dated: 2nd August, 2017

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Whether the Judgement is allowed to be published on the Internet – Yes/No
Whether the Judgement is to be published in the All India NGT Reporter – Yes/No

The applicant, a Social Worker and Founder and Managing

Trustee of the Nature Trust which was formed with the objective

of protecting the environment and various Natural Resources,

filed this application under Section 14 of the National Green

Tribunal Act, 2010 with a prayer to issue directions to the

respondents to stop all activities in the marsh lands and canal

kaiveli in areas situated in Survey No. 707 comprising 61.60

acres at Sholinganallur Village, Kancheepuram District.

2. The applicant Trust would claim that the Trust was

instrumental in retrieving so many acres of Government lands in

the recent past and also spearheading certain social welfare

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measures to promote development in the locality. According to

the applicant, their native village Injambakkam and

Sholinganallur Village are blessed with abundance of rich natural

resources, perennial waterways like Buckingham Canal which

passes through the village. Marsh lands which extend upto the

village of Pallikaranai, provide abundant underground water

supply besides being the abode of many birds and rich in fish

culture. The Marsh lands are a boon to the village. The Marsh

lands and other connected areas are spread over more than

61.60 acres. These lands and Buckingham Canal Marsh lands are

comprised in Survey No. 707 as shown in the particulars

furnished by the Public Information Officer, Tamil Nadu Archive,

Chennai. The said Injambakkam and Sholinganallur Villages are

situated on the outskirts of Chennai and fall within the limits of

Chennai City Corporation. More than 60,000 people reside there.

Water scarcity is prevalent in this village even though 60 small

tanks exist but are mostly encroached and permanent structures

were constructed over them. The Government categorised these

Marsh lands as belt area. Though the applicant requested the

Government to save the Marsh lands and issue proper directions

not to allow any constructions in the Marsh lands, no action is

taken to stop the constructions or save the Marsh lands, Canal

and Odai lands. Inspite of the request made to the Member

Secretary of the Chennai Rivers Restoration Trust dated

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16.02.2015, no action is taken to stop the encroachments and

protect the Marsh lands from further encroachments.

3. It is alleged that the Marsh lands are water saving

bodies and if these Marsh lands are allowed to be encroached,

Flora and Fauna which protects the Environment, would perish

and the entire Marsh lands would disappear. On 09.04.2013 the

Tamil Nadu Government announced in the assembly that it would

protect Pallikaranai Marsh lands at a cost of Rs.15.75 crores,

during the year 2011 to 2016. The Pallikaranai Marsh lands

extend upto Sholinganallur and Buckingham Canal. It is also

within the knowledge of the Government that it is a sanctuary to

112 species of birds, 21 species of reptiles, 9 species of

amphibians, 46 species of fishes, 7 species of butterflies and if

the Marsh lands are encroached and destroyed, it would endanger

the rare species of birds and other living creatures. On these

allegations, the applicant sought the reliefs.

4. Respondent No. 1 is the Secretary, Department of

Forest and Environment, Government of Tamil Nadu, Respondent

No. 2 is the Secretary, Department of Revenue, Respondent No.

3 is the Member Secretary, Chennai Rivers Restoration Trust and

Respondent No. 4 is the District Collector, Kancheepuram. Later

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by order dated 26.07.2016 the Tribunal impleaded the Regional

Transport Officer, Meenambakkam as respondent No. 5.

5. Respondent No. 4, the District Collector, Kancheepuram

filed a reply contending that the total extent of Survey No. 707 of

Sholinganallur village is 24.93.0 hec. Out of this, 2.83.5 hec was

sub divided as Survey No. 707/2 and transferred to Tamil Nadu

Transport Department for construction of Regional Transport

Office vide G.O(Ms) No. 25, Revenue Department, dated

18.01.2013. Vide G.O(Ms) No. 194, Revenue Department, dated

09.06.2014, 12.72.0 hec. was sub divided as Survey No. 707/3

and transferred to Tourism, Culture and Religious Endowments

Department for the formation of Tamil Nadu Music and Fine Arts

University. According to the respondent, even though the said

land is classified as “Government Poramboke – Kazhuveli”, after

obtaining technical opinion from PWD and permission from the

Government, the lands were transferred to the Government

Departments for Public Utility Service. The land in Survey No.

707/2 is described as “Kazhuveli” in village Accounts and

Revenue Records. According to the respondent, “Kazhuveli” is

not an Objectionable Poramboke land. The land was transferred

to the Transport Department after obtaining opinion from the

concerned Departments. The areas in and around Sholinganallur

Taluk have been developed; considering the interest of the larger

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public, the Government decided to establish a Regional Transport

Office at Sholinganallur Taluk. It is a policy decision of the

Government taken in the larger public interest. Though the land

was described as “Kazhuveli”, there is no permanent stagnation

of water in the ground level. Kazhuveli is not an objectionable

poramboke. Only after obtaining technical opinion from PWD, the

land was transferred. The other lands situated in and around

Survey No. 707 are patta lands. The land is situated 100 m away

from Buckingham Canal. The land in Survey No. 707/2 is situated

at the end of Kazhuveli adjacent to the patta lands. The question

of stagnation of water therefore does not arise. Now the Regional

Transport office is only dumping waste materials in the land in

order to level the land to construct the Regional Transport office.

Once the land is transferred to another Department neither the

District Collector nor the Secretary to the Revenue Department

has any right on the said land. Therefore, impleading the District

Collector and the Secretary to Government of Revenue are

unnecessary. The question of dumping of debris in the land

therefore does not arise. The land was transferred to the

Transport Department in the year 2013 itself. The Transport

Department is only dumping building materials to level the land

for construction. No municipal solid wastes were dumped in the

land in Survey No. 707 as alleged. The District Collector therefore

sought to delete the Secretary to Government, Revenue

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Department as well as the District Collector from the array of

party respondents.

6. Respondent No. 5 filed a reply contending that the

Government of Tamil Nadu allotted 7 acres of land classified as

“Government Poramboke – Kazhuveli” in Survey No. 707/1 of

Sholinganallur village by G.O(Ms) No. 25 dated 18.01.2013. Prior

to the issuance of the G.O, a notice was published in the local

daily dated 12.06.2009 by the District Collector, inviting

objections from the local public with regard to the allotment of

lands for the purpose of establishing the Transport Office. No

objection was filed. Subsequently, the Sholinganallur Town

Panchayat by Resoultion No. 475 dated 30.07.2009 granted 7

acres of land in Survey No. 707/1 for construction of Transport

Unit Office. The District Revenue Officer inspected the site on

12.09.2009 and reported that no trees or Ancient symbols or HT

wires etc. are there in the area. The Minister for Industries and

Transport made an announcement on the floor of the Assembly

on 04.09.2015 informing Construction of Protection Wall for the

vehicles detaining yard at Regional Transport Office,

Sholinganallur. The Detaining Yard will also be used for the RTO

Meenambakkam, Tambaram, Tiruvanmiyur and Mandaiveli.

Subsequently, the Transport Commissioner informed that

exclusive functioning of enforcement Wing of Chennai North and

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South Zone in the Transport Department needs sufficient space

as it is not available in the Regional Transport Office. Therefore, it

was decided to park the detained vehicles in the RTO

Sholinganallur and then for Electronic Driving Test Centre and

office premises etc. 7 acres in Survey No. 707/1 was therefore

allotted. On the request of the Transport Commissioner Chennai,

the Government sanctioned a sum of Rs 186.46 lakhs vide

G.O(Ms) No. 177 Home Department dated 15.02.2016 for

construction of protection wall. Construction of Protection Wall

was thus initiated. It is at this juncture, the applicant filed the

application alleging that it is a Marsh land.

7. The 5th respondent further contended that the

question of encroaching even a piece of Marsh land in Survey No.

707/1 of Sholinganallur village does not arise. The land was

allotted after careful examination. The land is totally different

from Marsh lands. It is a land where excess rain water will

stagnate during the period of rainfall. The water has been

stagnating in the land as it is low lying area, in comparison to the

road level and as there was no proper drainage facility. In fact,

only around 5 months in a year water is found in the said land

during the rainy season. The said land lies 10 feet lower than the

road level. It is for this reason the rain water accumulates

during the rainy season in the said land. As the land was
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described “Kazhuveli Poramboku” permission of the State was

obtained. The respondent submitted a proposal for transfer of the

land. The Commissioner, Land Administration had given

recommendations to transfer the land to the Transport

Department. After careful examination, the proposal was

accepted by the Government. The land ear-marked for the

Transport Office lies on the rear end of the Kazhuveli lands, on a

steep portion adjacent to the patta lands. The G.O itself clearly

explained that after completion of the excavation of Buckingham

Canal under JNNURM Scheme, water will be completely let into

the sea and the available sand would be excavated. After 2005

floods in Chennai Urban and Semi Urban areas, the JNNURM

project was taken up for alleviating the floods in the urban

settlements. One of the major components of this project is

widening the Buckingham Canal to double the width from 30 m.

The Public Works Department is the competent authority to give

technical clearance for conversion of land use susceptible for

flood. The land is not a water body or a marsh land. In and

around the said lands, number of Villas and apartments are

constructed. As per the observations in the Government Order,

the land allotted to the Industries Department vide G.O.(Ms)

No.500, Revenue Department dated 01.10.2010 measuring

71.58.0 hectares in S.No.602/7 and S.No.534/4 for the

establishment of Financial City and media entertainment park at

Perumbakkam was subsequently cancelled on objection of Forest

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Department, as the said land is purely marsh land. But it is

different from the Kazhuveli land involved in this case. Chennai

Zone comprising (North and South), has 19 Regional Transport

Offices. The land is allotted to the Transport Department for the

following purposes. 1. Vehicle Detention Yard- for safe custody

to have better enforcement work, 2. Scientific Electronic Driving

Testing Track to produce quality drivers with road safety

awareness and 3. To provide space for Regional Transport Office,

Sholinganallur which was functioning in a private building in a

congested area. It is therefore contended that the application is

to be rejected.

8. The applicant filed a rejoinder contending that

Buckingham Canal is attached with wetland situated at Survey

No.707, Akkarai village. It is locally known as Kazhuveli (a

generic Tamil name for marsh land). The Plant Diversity Survey

Report on Kazhuveli Akkarai Village in Sholiganallur Taluk of

Kanchipuram District submitted by Dr. D. Narasimhan and K.

Devanathan, Centre for Floristic Research, Department of Botany,

Madras Christian College, Chennai was also produced. It is

contended that the wetland water connected from Pallikaranai

Marsh land through Okkiyum Thoraipakkam Maduvu and later

connected to Buckingham canal and Wetland at Survey No. 707,

Akkarai Sholinganallur Taluk. This wetland is one of the God‟s gift

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to the Human beings. The attempt of the State Government is to

step into the shoes of the Hon‟ble Division Bench decision dated

27.12.2015 in W.P. No 1295 of 2009. By Judgement dated

26.02.2016 in W.P.Nos. 3008 of 2015, 3009 of 2015, the Full

Bench of High Court of Madras forbidden Regularization of

encroachments in water bodies in the State. The Deputy

Secretary to Revenue Department filed an affidavit therein

undertaking that the State Government would scrupulously follow

the Judgement of the Supreme Court and the High Court, to

protect water bodies making it clear that the encroachments of

water bodies is forbidden in the State of Tamil Nadu. If the

damage to the Marsh land is not stopped, the entire Marsh land

would disappear. It is contended that in any event the Marsh land

(Kazhuveli) of Akkarai, Sholiganallur Village having an extend of

61.60 Acres in Survey No. 707 should be protected. The applicant

contended that the application be disposed in terms of the order

passed by the Hon‟ble Full Bench of the Hon‟ble High Court in

W.P.No. 1294 of 2009 dated 30.10.2015.

9. The other respondents did not file any reply.

10. Though the applicant was originally appearing in

person, later learned counsel Mr.V.B.R. Menon appeared for the

applicant. The applicant originally filed written argument notes

dated 03.01.2017. Thereafter, additional written submissions

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dated 15.03.2017 was filed as a subsequent clarification to the

earlier submissions. Thereafter, the applicant filed the written

submissions dated 15.04.2017 and finally another written

arguments filed dated 30.05.2017.

11. Learned counsel appearing for the respondents filed

written submissions by way of an affidavit and thereafter

respondent No.4 filed one more affidavit as part of arguments.

12. Though the stand taken by the applicant in the original

application and the pleading was that the disputed land in the

application in Survey No.707 comprising 61.60 acres at

Sholinganallur Village in Kanchipuram District forms part of the

Pallikaranai marsh, the stand taken in the subsequent written

submissions and the argument is that the disputed land does not

form part of Pallikaranai marsh. The submission in the final

written submission dated 15.04.2017 is that, “the applicant has

never contended that the said lands form part of Pallikaranai

marsh lands which are under the control of the Forest

Department.” True, the stand taken therein is that in addition to

the Pallikaranai marsh lands which are under the control of Forest

Department, there are additional marsh lands to be protected

which include the disputed land in Survey No.707. The argument

of the learned counsel Mr.Menon appearing for the applicant is

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that Survey No.707 is a backwater or marsh land or wetland and

the Hon‟ble Supreme Court and the Hon‟ble High Court of Madras

in various decisions declared the necessity to protect the water

bodies, marsh lands and wet lands and those principles squarely

apply to the disputed land in Survey No.707 and therefore

respondents cannot be allowed to put up any construction and

thereby destroy their status as water body/ backwater / marsh

land / wetland. The applicant is relying on the entry made in the

“A” Register in respect of Survey No.707 where it is recorded in

English as „Back water‟ and in Tamil „Kazhuveli‟. The submission

is that it is a water body / marsh land / wetland to be protected.

Learned counsel argued that in W.P.No.40571 of 2015 the

Hon‟ble High Court of Madras in its Judgment dated 22.12.2015

already directed that there shall be no reclassification of the land

whereby the wetlands and lake areas may be converted into

house sites. In W.M.P. No.37161 of 2016 in W.P.No.12125 of

2013 by order dated 15.12.2016 the Hon‟ble High Court recorded

that the learned counsel for the respondents says that there is a

blanket stay order in respect of marsh land and thus there is no

question of issuance of pattas in respect thereof and hence marsh

lands cannot be transferred by the State for construction of any

building and therefore alienation of any part of land in Survey

No.707 to the Transport Department is illegal. In any case, the

Transport Department is not entitled to make any construction in

the land or cause any damage to the water body / marsh land /
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wetland. Learned counsel also argued that in W.P.No.30951 of

2016 by order dated 06.09.2016 the Hon‟ble High Court of

Madras held that what is classified as water area cannot now be

converted for any other use and that approach would also equally

have to be applied keeping in mind the problem of conversion of

wetland areas for urbanization. Learned counsel also argued that

the definition of Wetlands in the Wetlands (Conservation and

Management) Rules, 2010 proves that Wetlands include back

water also and as the revenue records prove that Survey No.707

is a back water, it is a wetland which is to be protected. Learned

counsel also argued that as per the definition in Wikipedia, the

Back water is a body of water that was created by flood or tide or

by being held or forced back by a dam or a body of stagnant

water connected to a river on the marsh land that is dominated

by herbaceous rather than woody plant species. It is argued that

the photographs of the land made available establish that it is a

marsh land and as the marsh land is to be protected for a clean

environment, the respondents cannot be permitted to make any

construction therein. Learned counsel also submitted that though

the document by which the land was transferred to the Transport

Department as well as the document by which another portion of

the land was transferred to the Tourism and Culture Department,

were not specifically challenged in the application, to protect the

entire marsh lands on the side of Buckingham Canal, Writ Petition

No.10821 of 2017, being a Public Interest Litigation, is filed

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before the Hon‟ble High Court of Madras and as the disputed land

is a marsh land, the respondents have to be prevented from

making constructions or filling up the lands. Learned counsel also

argued that respondent No.4 submitted in the reply that the

disputed land is lying 10 metres lower in level and is completely

filled up with water during the rainy season for 4 to 5 months and

that itself establishes that it is a water body or marsh land or

wetland. Learned counsel also argued that in such circumstances

respondents cannot contend that it is not a marsh land or wet

land. It is also submitted that the applicant has submitted a

report prepared by Dr. Narasimhan and K.Devanathan of Centre

for Floristic Research Department of Botany, Madras Christian

College, Chennai and the report shows that the disputed land is a

marsh land.

13. Learned counsel appearing for the State Mr.Manoharan

argued that Pallikaranai marsh is far away from the disputed land

as is clear from the Google Map made available by the applicant

himself. It is also argued that the disputed land does not form

part of Pallikaranai marsh land at all. It lies away from the

Buckingham Canal and is far away from Pallikaranai marsh lands.

Learned counsel submitted that the disputed land is neither a

water body nor a marsh land nor a back water and therefore,

based on the decisions in respect of water bodies or marsh lands,

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the applicant cannot contend that the Transport Department is

not competent to make constructions in the land allotted to the

Department by the Government. Learned counsel also argued

that even if the disputed land is a wetland, unless it is notified as

wetland under the Wetlands (Conservation and Management)

Rules, 2010 protection provided therein is not applicable and the

applicant cannot contend that no construction can be made in the

wetland, which is not notified under the Wetlands (Conservation

and Management) Rules, 2010. The argument is that the land is

classified in the revenue records as „Poramboke Kazhuveli‟ and it

is an unobjectionable and assignable land. It is argued that the

term wetland and classification Kazhuveli is generically used by

the Departments of Revenue and Forests and they denote the

same type of land. Though all marsh lands, swamps, water

bodies and back water are wet lands, all wetlands are not

automatically marsh / back water or water bodies. It is also

argued that all marsh lands are under the control of Forest

Department and wetlands are under the control of Revenue

Department. It is also argued that the wetlands are of two

categories, one objectionable wetlands and the other

unobjectionable wetlands. The unobjectionable wetlands could be

assigned by the Government and the objectionable wetlands

cannot be assigned. The argument is that the disputed land is a

Government Poramboke wetland which is assignable and are

unobjectionable wetlands and therefore, the Government is

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competent to transfer the land and the Transport Department is

competent to make construction also. Learned counsel also

argued that though the land was shown as back water when the

land is not connected to the river or sea, it will not satisfy the

concept of back water and instead it could only be a wetland.

Learned counsel therefore argued that the applicant is not

entitled to any relief sought for in the application.

14. The point arises for consideration:

Whether the disputed land in Survey No. 707 of

Sholinganallur Village having an extent of 61.60 acres is a water

body or a back water or a marsh land or a wetland and if so,

whether respondent No. 5 is entitled to make any construction in

any portion of the land and whether the disputed land is to be

protected from putting up any construction as sought for by the

applicant ?

15. Though the application is for protection of 61.60 acres

in Survey No.707 of Sholinganallur Village, claiming that it is a

marsh land and canal kazhuveli, the submission during the

arguments was with regard to the 7 acres of land transferred by

the Government to respondent No.5 for construction of the unit

office of the Transport Department. As is clear from

G.O.(Ms).No. 25 Revenue Department, dated 18.01.2013, based

on application submitted by the Regional Transport Officer,

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Meenambakkam to the District Collector, Kanchipuram for

transfer of 7 acres of land in Survey No.707 to Transport

Department for the construction of unit office, Sholinganallur, the

Principal Secretary and Commissioner of Land Administration,

Chennai justified the need for 1 acre for unit office building, 4

acres for the Electronic Driving Test base and 2 acres to keep the

confiscated vehicles. On inspection the District Revenue Officer,

Kanchipuram reported that there were no trees, ancient symbols,

costly buildings, high power tension and low power tension lines.

It was also reported that the proposed land is 10 feet lower than

the road level and water will be stagnated for 4 to 5 months

during rainy season. The proposed land is situated on the rear

end of Kazhuveli on a steep portion, adjacent to patta lands. The

present land level is between (+) 1.940 metre to (+) 2.230 metre

and during heavy rain, the highest level of water passing through

the Buckingham Canal is (+) 2.400 metre. It is therefore

necessary to raise up upto (+) 3.000 metre when the work under

Jawaharlal Nehru Urban Renewal Mission (JNURM) to lay channel

to release rain water through Buckingham Canal direct to sea is

taken up, the excavated sand would be available which could be

used for the proposed lands. The proposed land is Kazhuveli

Poramboke and has to be transferred to Government

Departments for public utility and therefore permission of the

Government is necessary. The District Collector, Kanchipuram

recommended for transfer of the lands and accordingly by

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G.O.(Ms).No.25, the Principal Secretary and Commissioner of

Land Administration, Chennai recommended the proposal of the

District Collector for transfer. Thus under the G.O.(Ms).No.25, 7

acres of land out of total extent of 24.93.0 hectare classified as

"Government Poramboke- Kazhuveli" in Survey No.707/1 of

Sholinganallur Village, was transferred in favour of Transport

Department on the conditions enumerated therein. Along with

the application the applicant has filed a copy of the

G.O.(Ms).No.25. The application was filed on 05.08.2015. The

reply filed by respondent No.4 reveals that it was by sub dividing

Survey No. 707/1, Survey No.707/2 the said land was

transferred. By G.O.(Ms.)No.194, Revenue Department, dated

09.06.2014, 12.72.0 Hec. was subdivided as Survey No.707/3

and transferred to Tourism, Culture and Religious Endowments

Department for the formation of Tamil Nadu Music and Fine Arts

University. But the applicant has not disclosed anything in the

application with respect to the said transfer of the lands, so also

there was no prayer in the application to quash the transfers

either in favour of the Transport Department or the Tourism,

Culture and Religious Endowments Department. It was much

after the arguments of the applicant were heard, the applicant

filed W.P.(PIL) No.10821 of 2017 seeking a prayer to protect the

total extent of Backwater lands which are lying on both sides of

Buckingham Canal with pressing specific prayer to quash the

transfers in favour of the Transport Department and the Tourism,

 20

Culture and Religious Endowments Department. Though the

learned counsel appearing for the applicant argued that the

disputed land in Survey No.707 is a water body, marsh land,

backwater and wet land, each of these categories are distinct and

different. The protection available to each category of lands are

different.

16. The Judgement of the Hon’ble Supreme Court in

M.C. Mehta Vs. Kamal Nath and others (1977 (1) SCC 388)

analyzed the doctrine of Public Trust as follows:

“our legal system- based on English common law-

includes the public trust doctrine as part of its
jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use
and enjoyment. Public at large is the beneficiary of
the sea-shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is
under a legal duty to protect the natural resources.
These resources meant for public use cannot be
convened into private ownership.”

Their Lordships held

“ the Public Trust Doctrine under the English

common law extended only to certain traditional uses
such as navigation, commerce and fishing. But the
American Courts in recent cases have expanded the
concept of the public trust doctrine. The
observations of the Supreme Court of California in
Mono Lake case clearly show the judicial concern in
protecting all ecologically important lands, for
example fresh water, wetlands or riparian forests”.
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It was further held

“ the observations of the Court in Mono Lake

case to the effect that the protection of ecological
values is among the purpose of public trust, may
give rise to an argument that the ecology and the
environment protection is a relevant factor to
determine which lands, waters or airs are protected
by the public trust doctrine. The Courts in United
States are finally beginning to adopt this reasoning
and are expanding the public trust to encompass
new types of lands and waters. In Phillips Petroleum
Co. v. Mississippi the United States Supreme Court
upheld Mississippi‟s extension of public trust
doctrine to lands underlying non-navigable tidal
areas. The majority judgment adopted ecological
concepts to determine which lands can be
considered tide lands. Phillips Petroleum case
assumes importance because the Supreme Court
expanded the public trust doctrine to identify the
tide lands not on commercial considerations but on
ecological concepts. We see no reason why the
public trust doctrine should not be expanded to
include all ecosystems operating in our natural
resources.”

It was then held

“in the absence of any legislation, the executive

acting under the doctrine of public trust cannot
abdicate the natural resources and convert them
into private ownership, or for commercial use. The
aesthetic use and the pristine glory of the natural
resources, the environment and the ecosystems of
our country cannot be permitted to be eroded for
private, commercial or any other use unless the
courts find it necessary, in good faith, for the public
good and in public interest to encroach upon the
said resources.”
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17. The Judgement of the Hon’ble Supreme Court in

Association for Environment Protection vs State of Kerala

and others (2013(7) SCC 226) holding that Article 48-A was

inserted in Part IV of the Constitution and the State was

burdened with the responsibility of making an endeavour to

protect and improve the environment and to safeguard the

forests and wildlife of the country. By the same amendment ,

Fundamental Duties of the citizens were enumerated in the form

of Article 51-A (part-IV A). These include duty to protect and

improve the natural environment including forests, lakes, rivers

and wildlife and to have compassion for living creatures.

Taking note of the fact that the Courts in different

jurisdictions have, time and again, invoked the public trust

doctrine for giving judicial protection to environment, ecology and

natural resources, the Hon‟ble Supreme Court recognized the

importance of the public trust doctrine and applied the same in

several cases for protecting natural resources which have been

treated as public properties and are held by the Government as

trustee of the people.

18. In M.I. Builders Pvt. Ltd. v. Radhey Shyam

Sahu (1999) 6 SCC 464, the Hon‟ble Supreme Court applied

public trust doctrine for upholding the order of Allahabad High

Court which had quashed the decision of Lucknow Nagar

 23

Mahapalika permitting the Builders Pvt. Ltd. to construct an

underground shopping complex in Jhandewala Park, Aminabad

Market, Lucknow. When the order was assailed before the Hon‟ble

Supreme Court, the Court invoked the public trust doctrine and

held that being a trustee of the park on behalf of the public, the

Nagar Mahapalika could not have transferred the same to the

private builder and thereby deprived the residents of the area of

the quality of life to which they were entitled under the

Constitution and Municipal Laws.

The Observation therein reads

“ This is an articulation of the doctrine from the

angle of the affirmative duties of the State with
regard to public trust. Formulated from a nugatory
angle, the doctrine does not exactly prohibit the
alienation of the property held as a public trust.
However, when the State holds a resource that is
freely available for the use of the public, it
provides for a high degree of judicial scrutiny on
any action of the Government, no matter how
consistent with the existing legislations, that
attempts to restrict such free use. To properly
scrutinise such actions of the Government, the
courts must make a distinction between the
Government‟s general obligation to act for the
public benefit, and the special more demanding
obligation which it may have as a trustee of certain
public resources.”

19. In Fomento Resorts and Hotels Ltd. v. Minguel

Martins (2009 (3) SCC 571), the Hon‟ble Supreme Court held

“ The heart of the public trust doctrine is that

it imposes limits and obligations upon government
 24

agencies and their administrators on behalf of all

the people and especially future generations. For
example, renewable and non-renewable resources,
associated uses,ecological values or objects in
which the public has a special interest (i.e. public
lands, waters, etc.) are held subject to the duty of
the State not to impair such resources, uses or
values, even if private interests are involved. The
same obligations apply to managers of forests,
monuments, parks, the public domain and other
public assets.”

Their Lordships further held

“ Today every person exercising his or her right

to use the air, water, or land and associated
natural ecosystems has the obligation to secure for
the rest of us the right to live or otherwise use that
same resource or property for the long-term and
enjoyment by future generations. To say it another
way, a landowner or lessee and a water right
holder has an obligation to use such resources in a
manner as not to impair or diminish the people‟s
rights and the people‟s long-term interest in that
property or resource, including down slope lands,
waters and resources.”

Thus a water body which has to be used by the generations can

never be allowed to be obliterated even by the State, who holds

the same in public trust and the State has no right to destroy or

to jeoparadise the same.

20. The Full Bench of the High Court of Madras in T.K.

Shanmugam, Secretary,C.P.I(M) v. The State of Tamil Nadu

& others(2015(5) L.W 397) followed the principles and based

on the public trust doctrine held that the Division Bench in L.

 25

Krishnan vs. State of Tamil Nadu (2005(4)CTC 1), did not

limit its direction to water bodies under the control of the Public

Works Department. In fact, it has issued directions applicable for

all natural water resources in the different parts of the State of

Tamil Nadu and wherever illegal encroachments are found, to

take steps for removal of the encroachments in accordance with

the relevant provisions of law. That decision was approved by the

Hon’ble Supreme Court in Jagpal Singh and others Vs.

State of Punjab and others (2011 (11)SCC, 396).

21. Therefore, if the disputed land is a water body

definitely, it is to be protected from any construction whereby the

nature of the water body would be destroyed adversely affecting

the ecology.

22. The position of marsh land, back water and wetland

stands on a different footing. The wetlands undoubtedly play a

vital role in the hydrological cycle on account of their wide

ranging ecosystem services like water supply and purification,

waste assimilation, buffering extreme events of floods, droughts,

storms and cyclones, ground water recharge, erosion control,

micro-climatic regulation etc. They play a significant role by

harboring wide range of floral and faunal diversity including rare

endangered and endemic species and also support complex food

 26

chains and help to mitigate and adopt to changing climate

because of their ability to act as carbon sinks, regulate water

regimes, prevent erosion and provide habitat to bio-diversity

under stress. It is for these reasons, the Government of India, in

exercise of the powers conferred under Section 25, read with

sub-section (1) and clause (v) of sub-section (2) and sub-section

(3) of Section 3 of the Environment (Protection) Act 1986,

notified the Wetlands (Conservation and Management) Rules

2010 (in short 2010 Rules).

23. Under Rule 2 (g) “Wetland” has been defined as

follows:

“ “wetland” means an area or of marsh, fen, peatland or

water; natural or artificial, permanent or temporary,
with water that is static or flowing, fresh, brackish or
salt including areas of marine water, the depth or which
at low tide does not exceed six meters and includes all
inland waters such as lakes, reservoir, tanks,
backwaters, lagoon, creeks, estuaries and manmade
wetland and the zone of direct influence on wetlands
that is to say the drainage area or catchment region of
the wetlands as determined by the authority but does
not include main river channels, paddy fields and the
coastal wetland covered under the notification of the
Government of India in the Ministry of Environment and
Forest, S.O. number 114 (E) dated the 19th February,
1991 published in the Gazette of India, Extraordinary,
 27

Part II, Section 3, Sub-section (ii) of dated the 20th

February, 1991.”

As is clear from the definition an area of marsh or

water either natural or temporary, would definitely be a wetland

as defined under Rule 2(g) of 2010 Rules. Therefore, the

protection available to a marsh land or back water or wetland is

the protection available to the wetland as defined under Rule 2(g)

of 2010 Rules.

24. Rule 3 deals with the protected wetlands, which read as

follows:

“Based on the significance of the functions performed

by the wetlands for overall well being of the people and
for determining the extent and level of regulation, the
following wetlands shall be regulated under these rules,
namely:-

(i) Wetlands categorized as Ramsar Wetlands of

International Importance under the Ramsar
Convention as specified in the Schedule.

(ii) Wetlands in areas that are ecologically sensitive and

“important, such as, national parks, marine parks,
sanctuaries, reserved forests, wildlife habitats,
mangroves, corals, coral reefs, areas of outstanding
natural beauty or historical or heritage areas and the
areas rich in genetic diversity;

(iii) Wetlands recognized as or lying within a UNESCO

World Heritage Site;
 28

(iv) High altitude wetlands or high altitude wetland

complexes at or above an elevation of two thousand
five hundred metres with an area equal to or greater
than five hectares;

(v) Wetlands or wetland complexes below an elevation

of two thousand five hundred metres with an area
equal to or greater than five hundred hectares.

(vi) Any other wetland as so indentified by the Authority

and thereafter notified by the Central Government
under the provisions of the Act for the purposes of
these rules.”

The wetlands categorized as Ramsar Wetlands of

International Importance under the Ramsar Convention is shown

in the Schedule to 2010 Rules. It is clear that within the State of

Tamil Nadu the only wetland identified as Ramsar sites is “Point

Calimere Wildlife and Bird Sanctuary”.

Rule 4 deals with the restrictions on activities within

wetlands, which reads as follows:

“(1) The following activities within the wetlands

shall be prohibited namely:-

(i) reclamation of wetlands;

(ii) setting up of new industries and expansion of

existing industries.

(iii) manufacture or handling or storage or disposal

of hazardous substances covered under the
Manufacture, Storage and Import of Hazardous
Chemical Rules, 1989 notified vide S.O. number 966
 29

(E) dated the 27th November, 1989 or the Rules for

manufacture, Use, Import, Export and Storage of
Hazardous Micro-organisms/Genetically engineered
organisms or cells notified vide GSR number 1037
(E) dated the 5th December, 1989 or the Hazardous
Wastes (Management, Handling and Transboundry
Movement) Rules, 2008 notified vide S.O. number
2265 (E), dated the 24th September, 2008;

(iv) solid waste dumping: provided that the

existing practices, if any, existed before the
commencement of these rules shall be phased out
within a period not exceeding six months from the
date of commencement of these rules;

(v) discharge of untreated waste and effluents

from industries, cities or towns and other human
settlements: provided that the practices, if any,
existed before the commencement of these rules
shall be phased out within a period not exceeding
one year from the date of commencement of these
rules;

(vi) any construction of a permanent nature except

for boat jetties within fifty metres from the mean
high flood level observed in the past ten years
calculated from the date of commencement of these
rules.

(vii) any other activity likely to have an adverse

impact on the ecosystem of the wetland to be

specific in writing by the Authority constituted in

accordance with these rules.”

 30

Certain activities though prohibited, could be

undertaken with the prior approval of the State Government

within the wetlands as provided under sub-rule (2).

The Sub-rule (2) reads as follows:

“(2) The following activities shall not be undertaken without

the prior approval of the State Government within the
wetlands, namely:-

(i) Withdrawal of water or the impoundment, diversion

or interruption of water sources within the local
catchment area of the wetland ecosystem;

(ii) Harvesting of living and non-living resources;

(iii) Grazing to the level that the basic nature and

character of the biotic community is not adversely
affected;

(iv) Treated effluent discharges from industries, cities or

towns, human settlements and agricultural fields
falling within the limits laid down by the Central
Pollution Control Board or the State Pollution
Control Committee, as the case may be;

(v) Plying of motorized boat, if it is not detrimental to

the nature and character of the biotic community;

(vi) Dredging, only if the wetland is impacted by

siltation;

(vii) Construction of boat jetties;

(viii) Activities within the zone of influence, as per the

definition of wetlands, that may directly affect the
ecological character of the wetland;
 31

(ix) Facilities required for temporary use, such as

pontoon bridges, that do not affect the ecological
character of the wetland.

(x) Aquaculture, agriculture and horticulture activities

within the wetland;

(xi) Repair of existing buildings or infrastructure

including reconstruction activities;

(xii) Any other activity to be identified by the Authority.”

Sub-Rule (3) of Rule 4 provides that notwithstanding

anything in sub-rule (1) or sub- rule (2) of Rule 4, the Central

Government may permit any of the prohibited activities or non-

wetland use in the protected wetland on the recommendation of

the Authority. The authority as defined under rule 2(b) means

the Central Wetlands Regulatory Authority constituted under Rule

5. Rule 6 provides the process for identification of wetlands

under different categories of wetlands covered under item (i) of

Rule 3 specified under Schedule to be regulated under the Rules.

But it is to be borne in mind that the protection under 2010 Rules

is only to those wetlands which are notified under the said Rules.

25. The Judgment of the Hon’ble Supreme Court in

Vardha Enterprises Private Limited Vs. Rajendra Kumar

Razdan and others ( 2015 (15) SCC 352) settled the position

as follows:
 32

“On the examination of the scheme of the rules, we are

of the opinion that the applicant is right in his first two
submissions. First of all, the area where the applicant‟s
construction is going on has not yet been legally notified
as a wetland under the Rules. In the absence of any
legal embargo as on today, the applicant‟s right to carry
on the construction according to the existing law and
various permissions granted under it cannot be
frustrated by executive action in anticipation of some
embargo which is likely to be created in future.”

26. Learned counsel appearing for the applicant submitted

that the Hon’ble Supreme Court in M.K.Balakrishnan and

others Vs. Union of India and others (W.P. (Civil) No.230

of 2001 by order dated 8th February, 2017) held that the

prohibition of activities provided under rule 4 of the 2010 Rules,

are applicable to all the wetlands and therefore even if the

disputed land is not a part of a notified wetland, the restrictions

provided under Rule 4 is applicable to the disputed wetlands also

and therefore, the land is to be protected.

27. With the intention of superseding 2010 Rules, the

Central Government by Notification dated 31st March 2016

published the draft rules inviting objections from the public. The

Hon‟ble Supreme Court, taking note of the submission that as

many as 175 comments were received and for the examination of

these comments a committee has been constituted by the Union

 33

of India, to submit its report and the submissions on behalf of

the Union of India was that the period need to be extended.

Therefore, the Hon‟ble Supreme Court directed the Central

Government to notify the Wetlands (Conservation and

Management) Rules, 2016 on or before 30th June 2017. The

order makes it clear that such a direction was issued as the

matter was pending with the Government of India for more than

a year, finding that there should be a finality to the publication of

the rules. When the attention of the Hon‟ble Supreme Court was

drawn to the Information Brochure “National Wetland Inventory

and Assessment” which indicates that 2,01,503 wetlands have

been mapped at 1:50,000 scale and all the wetlands have an

area of more than 2.25 hectares and it is necessary to obtain

„Brief documents‟ with regard to these 2,01,503 wetlands by the

Union of India from the respective State Governments in terms of

Rule 6 of the 2010 Rules, an apprehension was expressed before

the Hon‟ble Supreme Court that there is a possibility for some of

the wetlands disappearing by the time the Rules are notified.

Hence finding that the apprehension is not unfounded, Hon‟ble

Supreme Court passed the following directions:

“Accordingly, we direct the application of the principles of

Rule 4 of the Wetlands (Conservation and Management) Rules,
2010 to these 2,01,503 wetlands that have been mapped by the
Union of India. The Union of India will identify and inventorize all
these 2,01,503 wetlands with the assistance of the State
Governments and will also communicate our order to the State
 34

Governments which will also bind the State Governments to the

effect that these identified 2,01,503 wetlands are subject to the
principles of Rule 4 of the Wetlands (Conservation and
Management) Rules, 2010, that is to say:

(i) reclamation of wetlands;

(ii) setting up of new industries and expansion of

existing industries.

(iii) manufacture or handling or storage or disposal of

hazardous substances covered under the
Manufacture, Storage and Import of Hazardous
Chemical Rules, 1989 notified vide S.O. number 966
(E) dated the 27th November, 1989 or the Rules for
manufacture, Use, Import, Export and Storage of
Hazardous Micro-organisms/Genetically engineered
organisms or cells notified vide GSR number 1037
(E) dated the 5th December, 1989 or the Hazardous
Wastes (Management, Handling and Transboundry
Movement) Rules, 2008 notified vide S.O. number
2265 (E), dated the 24th September, 2008;

(iv) solid waste dumping: provided that the existing

practices, if any, existed before the commencement
of these rules shall be phased out within a period
not exceeding six months from the date of
commencement of these rules;

(v) discharge of untreated waste and effluents from

industries, cities or towns and other human
settlements: provided that the practices, if any,
existed before the commencement of these rules
shall be phased out within a period not exceeding
one year from the date of commencement of these
rules;

(vi) any construction of a permanent nature except for

boat jetties within fifty metres from the mean high
flood level observed in the past ten years calculated
from the date of commencement of these rules.

(vii) any other activity likely to have an adverse impact on

the ecosystem of the wetland to be specific in writing
 35

by the Authority constituted in accordance with these

rules.”

28. Therefore, it is true that even if the disputed land is not

a notified wetland under 2010 Rules, if it is one among the

2,01,503 wetlands covered by the order of the Hon‟ble Supreme

Court in W.P.(C) No.230 of 2001 dated 8th February, 2017, the

protection provided under 2010 Rules should be available to the

disputed land also. But there is absolutely no material before us

to find whether the disputed lands are among the 2,01,503

wetlands subjected to the preservation/protection provided by the

decision of the Hon‟ble Supreme Court dated 08.02.2017. We

make it clear that if the disputed lands are part of the wetlands

out of the 2,01,503 wetlands covered by the decision of the

Hon‟ble Supreme Court, respondent No.5 or the other

respondents are not entitled to put up any construction in

violation of the provisions provided under Rule 4 of the 2010

Rules.

29. Though the learned counsel appearing for the applicant

vehemently argued that no construction or reclamation of marsh

lands and the wetlands are permissible because of the decisions

of the Hon‟ble High Court of Madras, on the materials furnished,

we cannot agree. The argument of Mr.Menon, the learned

counsel appearing for the applicant was mainly based on the Full
 36

Bench decision of the Hon’ble High Court of Madras in T.K.

Shanmugam, Secretary, C.P.I.(M) vs. The State of Tamil

Nadu and others (2015 (5) L.W.397). The Full Bench in that

case was considering the question whether the provisions of the

Tamil Nadu Protection of Tanks and Eviction of Encroachment Act,

2007 (in short „Tank Act‟) does in any manner dilute the

observations / directions made in L.Krishnan Vs. State of Tamil

Nadu (2008 (4) L.W. 415) or any other judgments of the

Hon‟ble Supreme Court, requiring protection of Water Bodies,

which was referred to the Full Bench by the Division Bench. The

Public Interest Litigation in L.Krishnan‟s case (supra) was filed

seeking a direction against the Government and Revenue Officials

to remove encroachments made by private parties in a Odai

Poramboke in Villupuram District. The Division Bench pointed out

that ponds, tanks, and lakes have been essential part of the

people‟s natural resources, but in recent years, they were illegally

encroached upon by unscrupulous persons causing adverse effect

on the lives of the people. Taking note of the water scarcity

prevailing in the State of Tamil Nadu, it was found by the Division

Bench that water storage tanks, ponds and lakes as disclosed in

the revenue records are to be restored to their original status, as

part of its rainwater harvesting scheme. After referring to the

decision of the Hon’ble Supreme Court in Hinch Lal Tiwari

Vs. Kamal Devi (2001(6) SCC 496, the Division Bench found

that the endeavour of the State should be to protect the natural

 37

resources like Forests, Tanks, Ponds etc., in order to maintain

ecological balance, which would pave the way to provide a

healthy environment and enable the people to enjoy a quality life,

which is the essence of the right guaranteed under Article 21 of

the Constitution. After referring the various decisions of the

Hon‟ble Supreme Court, the Division Bench issued certain

directions firstly, a positive direction to remove the

encroachments over odai poramboke, which was complained of in

the said Public Interest Litigation. Secondly a direction was

issued to the State Government to identify all such natural water

resources in different parts of the State and wherever illegal

encroachments are found, initiate appropriate steps in accordance

with the relevant provisions of law for restoring such natural

water storage resources which have been classified as such in the

revenue records, to its original position so that the suffering of

the people of the State due to water shortage is ameliorated.

After the decision, the State Government enacted the Tank Act as

an Act to provide for checking the encroachments, eviction of

encroachments in tanks which are under the control of

management of Public Works Department, protection of such

tanks and for matters incidental thereto. But as is clear from the

said Act the Government intended to restrict the applicability of

law to the tanks which are under the control and management of

the Public Works Department. Challenging Sections 4 to 10 of

the Tank Act with a prayer to declare those provisions null and
 38

void and contrary to Article 14 of the Constitution of India on the

ground that those provisions confer upon the executive, unguided

and uncanalised discretionary power, the writ petition was filed

which was heard by the Division Bench.

30. The Full Bench relying on the decision of the Hon‟ble

Supreme Court in Jagpal Singh (supra) case, wherein the decision

in L.Krishan‟s case (supra) was approved and a direction was

issued to all State Governments in the country to prepare

schemes for eviction of illegal/unauthorized occupants of the

grama sabha / grama panchayat / poramboke / shamlat land and

to restore them for the common use of the villagers of village.

The Full Bench held that L.Krishnan‟s case (supra) did not limit its

direction to water bodies under the control of the Public Works

Department and in fact, it has issued directions for all natural

water resources in different parts of the State of Tamil Nadu and

wherever illegal encroachments are found, to take steps for

removal of the encroachments. Based on the Public Trust

Doctrine which requires that natural resources such as lakes,

ponds etc., are held by the State as a „trustee‟ of the public and

can be disposed of only in a manner that is consistent with the

nature of such a trust, it was held that the State being a trustee

of these natural resources such as tanks, lakes etc., has to

necessarily act consistent with the nature of such trust. The

 39

vesting of these lands and water bodies with the Government is

to benefit the public and any attempt made by the Government to

act in a manner derogatory to the object for which the land was

vested, has to be held illegal, the underlying fundamental

principle being that such rights are public rights which are in a

higher pedestal than private rights.

31. Finding that the encroachments in water bodies are in

clear violation of the public trust doctrine, the Full Bench held

that “moreover, Article 51-A of the Constitution of India enjoins

that it shall be the duty of every citizen of India, inter alia, to

protect and improve the natural environment including forests,

lakes, rivers, wildlife and to have compassion for living creatures.

This Article is not only fundamental in the governance of the

country but a duty on the State to apply these principles in

making laws and further to be kept in mind in understanding the

scope and purport of the fundamental rights guaranteed by the

Constitution including Articles 14, 19 and 21 of the Constitution

and also the various laws enacted by the Parliament and the

State Legislatures.” The Full Bench therefore, answered the

reference holding that the provisions of the Tank Act does not in

any manner dilute the observations/ directions issued in

L.Krishnan‟s case (supra), as quoted with approval by the Hon‟ble

Supreme Court in Jagpal Singh (supra) case.

 40

32. The Full Bench also approved the decision of the

Division Bench in T.S.Senthil Kumar Vs. Government of

Tamil Nadu (2010 (3) MLJ 771) 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. But the said

decisions cannot be applied to the wetland or marsh land, as

claimed by the learned counsel appearing for the applicant. So

also, the decision of the Hon‟ble Supreme Court in Jagpal Singh

(supra) case also cannot be made applicable to the wetlands or

marsh lands. They apply to only water bodies.

33. Learned counsel appearing for the applicant also

argued that the Hon‟ble High Court of Madras has applied the

principles to marsh land and wetland and reliance was placed on

the orders passed in W.P.No.12125 of 2013 to support the

submissions, the argument of the learned counsel appearing for

the applicant is that the dispute in W.P.No.12125 of 2013 is with

regard to 69 acres of land comprised in survey Nos.282/1, 282/2

and 282/3 classified as Kazhuveli and Grazing grounds and the

classification of the land as Kazhuveli is similar classification of

the disputed lands and both the lands are lying on either side of
 41

Buckingham Canal and therefore, the orders passed in

W.P.No.12125 of 2013 shall also apply to the disputed land.

34. Mr. E. Manoharan, the learned Government Pleader

appearing for the State disputed the submission and argued that

the Hon‟ble High Court had found that the said lands are not

marsh lands and a survey was directed to be taken by Indian

Institute of Technology (IIT), Chennai and therefore the decision

is not also helpful to the applicant.

35. Learned counsel appearing for the applicant is relying

on the order dated 15.12.2016 in W.M.P. No. 37161 of 2016 in

W.P.No.12125 of 2013. The order reads as follows:

“ The learned counsel for the respondents states that

there is a blanket stay order in respect of marsh land
and thus, there is no question of issuance of pattas in
respect thereof.”

The order passed by the same Bench on 09.04.2015 shows that

the area is stated to be more than 156 acres and despite the

request made to the Tasildhar/2nd respondent, the factum of

encroachments periodically taking place is acknowledged. It is,

however, stated that the land located in Survey Nos.283, 284,

285 are not Marsh Lands, but Dry Land, Cart Track, Kazhuveli,

grazing ground and Buckingham Canal and the boundaries cannot

 42

be identified. The applicant contended before the Hon‟ble High

Court that the details obtained under Right to Information Act

(RTI Act) reveals that „A‟ Register has been tampered

unauthorisedly and thus, what is marsh land, has been altered to

grazing land. The Hon‟ble High Court therefore issued a direction

to conduct an enquiry in respect of the „A‟ Register alteration to

confirm the validity and authenticity of the alteration and in case

of alteration to take action and since the eviction of unauthorized

occupants is stated to be a periodic exercise, a fresh exercise be

undertaken and a status report be filed within two months quo

the aforesaid with a proper site plan and photographs of the area.

36. The applicant is also relying on the order of another

Division Bench in W.P.No.40571 of 2015 dated 22.12.2015. As is

clear from the order, representation was submitted before the

District Collector, Kancheepuram alleging granting of pattas in

respect of the lake area. It was reported before the Hon‟ble High

Court by the Tahsildhar that no patta has been issued in any of

the wetlands. The Hon‟ble High Court therefore found that the

relief prayed for by the applicant has become infructuous.

However, the Tahsildhar was directed to look into the issue

whether without issuing of any patta in violation of the norms,

any construction is being made and ensure that there is no re-

 43

classification of the lands whereby the wetlands and the lake

areas are converted into house sites.

37. Mr.Manoharan, learned Government Pleader submitted

that subsequent to the order dated 09.04.2015, whereby an

enquiry was directed to be conducted, a compliance report was

filed by the District Collector, Kancheepuram before the Hon‟ble

High Court that a field inspection was done by the District

Revenue Officer along with Director of Animal Husbandry

Department and the Tahsildar, Sholinganallur inspected the site

situated in Survey Nos.281, 282, 283, 284 and 285 measuring

nearly 156 acres of Injambakkam village and prepared a field

inspection report along with photographs produced before the

Hon‟ble High Court. The District Collector has undertaken that

necessary steps will be taken to remove encroachers and to verify

the alteration in the classifications in „A‟ Register. It is also

pointed out by the Government Pleader that another affidavit was

filed by the Secretary to Government, Revenue Department

before the Hon‟ble High Court dated 25.11.2015, that on

verification it is found that there is no tampering of records. The

relevant portion of the affidavit of the Secretary to Government,

Revenue Department reads as follows:

“It is further submitted that, clarification from the

District Forest Officer, Kancheepuram were also sought
whether the above land comprised in S.No.281, 282/2
 44

and 282/3 come under the category of marsh land. The

District Forest Officer, Kancheepuram reported that the
said lands are not allotted to Forest as Marsh Land
which clearly reveals that the said lands are Kazhuveli
and Meikkal lands only and there is no tampering of
records as alleged by the petitioner.”

It was also pointed out that the order dated 27.11.2015 of the

Division Bench shows that the affidavit of the Secretary to

Government, Revenue Department was perused by the Bench

and the conclusion is that though there is mis-description at the

stage of preparation of the manuscript Register, it is attributable

to a clerical error and not tampering of records. The result is,

there are no Marsh lands, but the lands are classified as Meikkal

Poramboke lands, which are to be used for grazing purposes. It

is also recorded that the District Collector has to take a final

decision whether the encroachment is objectionable or not and to

that query from the Bench whether the grazing land is to be used

only for grazing purposes, it was submitted that the Government

order in respect of the grazing land is required. Therefore the

Secretary to Government, Revenue Department was directed to

file the Government order. By order dated 08.01.2016 the

Division Bench directed to file status report of compliance. The

order dated 20.10.2016 shows that the stand of the State

Government was that no unobjectionable poramboke land is

available in Sholinganallur Taluk and thus in terms of G.O.Ms.

N0.186, dated 11.12.2001, the Revenue Divisional Officer has to

 45

identify the Government land in the villages coming under their

jurisdiction and send necessary proposal for conversion of the

same to grazing ground poramboke, and pursuant to the

instructions, the Revenue Divisional Officer, Chengalpattu, by

letter dated 07.10.2016, reported that an extent of 6.48.0

Hectares of land classified as Government Assessed Dry Waste

Land is available and a joint inspection is to be made and the

proposal would be forwarded to the Government. Though it was

submitted by the learned counsel appearing for the private

respondents that there is already a developed colony in the area

with roads being named and the very objective of the land being

a grazing ground is defeated, as it cannot be converted to its

original purpose, the Hon‟ble High Court held that it is for the

State Government to see as to how to meet the situation, since

the order is of the Government, land is of the Government and

the Government has permitted rampant encroachments.

38. The District Collector, Kancheepuram filed an affidavit

before the Hob‟ble High Court dated 17.10.2015 that the lands

classified as Government Assessed Dry Waste Land is available in

Pandur village in Chengalpattu Taluk and necessary proposal be

sent to the Government soon. By order dated 15.12.2016 the

Hon‟ble High Court directed the plan of the area be filed

indicating the nature of the classification of the land in respect of

 46

different parts of Survey No.285 and as to what is existing on

those sites. By order dated 15.12.2016 the Hon‟ble High Court

recorded the statement of the learned counsel appearing for the

respondents that there is a blanket stay order in respect of marsh

land. On 30.01.2017 the following order was passed:-

“In view of what is set out in the application, we are

of the view that the court should also be assisted by a
survey report to be submitted by the Indian Institute
of Technology, Chennai in respect of the land in
Survey Nos.282/1, 2, and 3 of total extend of 165
Acres situated in Injambakkam Village, Sholinganallur
Taluk, Kancheepuram District. The expenses will be
borne by the State Government. The copy of this
order be communicated to the Indian Institute of
Technology, Chennai.”

The issue whether pattas can be issued or not by the State

Government would naturally depend on the survey and thus, in

the mean time, no pattas will be issued.

39. Learned counsel appearing for the State relied on the

following order of the Hon‟ble Division Bench dated 09.04.2015:-

“Today, when this writ petition is taken up, an

additional affidavit has been filed by the 36th respondent
on behalf of the respondents 36 to 38, in which it is
stated that there is no tampering of records as alleged
by the petitioner and that the District Forest Officer,
Kancheepuram has reported that the lands in
 47

S.F.Nos.281, 282/1, 2 and 3 are not marsh lands. It is

also stated that as per the preliminary enquiry done by
the Tahsildar, Sholinganallur, it is found that there are
no encroachments in the lands in S.FNos.283, 284 and
285. It is further stated in the additional affidavit that
the Director of Indian Institute of Technology, Madras
has been requested by a letter dated 24.02.2017 to
depute an expert in cad astral survey to prepare a
survey report to comply with the orders passed by this
Court and at least a time of one month is required to
complete this survey. Further, it is stated that the
original proposal dated 12.09.2016 sent by the District
Collector, Mancheepuram for assignment of house site
pattas in these lands, has been returned calling for
further particulars about the period and nature of
encroachments and details of encroachers. Further,
detailed enquiry has to be conducted to determine the
eligibility of encroachers for house site patta. But since
this Court has now ordered for not issuing pattas till
receipt of survey report of Indian Institute of
Technology, Madras, the detailed enquiry as stated will
continue simultaneously along with survey work.
Further, it is also stated that they have planned to use
historical satellite imagery of the area in addition to
local enquiry and field inspection, to determine the age
profile of encroached structures so that an objective
and scientific assessment of age of encroached
structures can be made, to corroborate the
documentary evidence submitted by the encroachers to
prove their period of occupation.

It is also stated in the additional affidavit that the

Government will consider the regularization / eviction
depending upon the eligibility of the encroachers after
 48

completing the above mentioned survey work by the

Indian Institute of Technology and the enquiry, to
determine the eligibility.

Reiterating the submissions made in the counter

affidavit, Mr.C. Manishankar, Additional Advocate,
assisted by Mr.M.K.Subramanian, Government Pleader,
representing the respondents 1 and 2, have submitted
that a minimum time of one year is required to
complete the above exercise in a proper manner.

The above submissions made in the additional

affidavit filed by the 36th respondent on behalf of the
respondents 36 to 38, are placed on record and a time
of one year is granted to carry out the above exercise.
It is made clear that while carrying out the said
exercise, the authorities shall take note of all the
averments made by the petitioner in this petition.”

40. It is thus clear that the stand taken by the learned

counsel appearing for the respondents is that the lands in Survey

No.282/1, 282/2 and 283/3 are not marsh lands and it is the

same stand taken in W.P.No.12125 of 2013 which fact was

asserted before the Division Bench. That fact was also recorded in

the orders. As the survey was directed to be conducted by IIT

Chennai, and a period of one year was granted, the final orders

are yet to be passed. Therefore there is no specific findings by

the Hon‟ble High Court on whether they are marsh lands or

wetlands. It is also true that even after quoting the contention of

the State that those lands are not marsh lands, the Hon‟ble High
 49

Court did not find that the contention is not correct and they are

in fact marsh lands.

41. Learned counsel appearing for the applicant relied on

GO.Ms. No.147 dated 12.05.2014 wherein the earlier GO.Ms.

No.500 dated 01.10.2013 whereunder a total extent of 71.58.0

hectare of lands in Survey Nos.602/7 and 534/4 of Sholinganallur

and Perumbakkam Villages in Tambaram Taluk, Kancheepuram

District were transferred to Industries Department for setting up

of Financial City and Media Entertainment Park, were transferred

to the Forest Department being part of Pallikaranai Marsh Land.

The argument is that the said lands are similar to the disputed

lands and therefore the impugned transfer of the land to the

Transport Department is also vitiated and therefore any

construction thereon is to be prohibited. As is clear from the said

G.O. the said decision for cancellation of the earlier G.O.

transferring the lands for constructing the Financial City, was

based on the decision taken in a review meeting convened under

the Chairmanship of the Chief Secretary to review the eco-

restoration works in the Pallikaranai Marsh Land. The decision

was

“The portion of the Pallikaranai Marsh Land (about 72

ha.) situated along with southern side of Medavakkam-
Sholinganallur road earmarked for establishment of
Financial City needs to be handed over to the Forest
 50

Department as this area is a water body supporting lot of

Avian population.”

Therefore, it is clear that the said land is a part of Pallikaranai

Marsh and it is a water body supporting a lot of Avian population.

When admittedly the disputed land is not a part of Pallikaranai

marsh and there is no material to show that the disputed lands

support any Avian population and as it is not a water body, the

disputed lands cannot claim equal protection or status of the

lands covered under GO.Ms. No.500 Revenue dated 01.10.2010

or GO.Ms.No.147 Revenue dated 12.05.2014. Though applicant

has relied on a report prepared by Dr.Narasimhan and

Devanathan of Madras Christian College, Chennai, as is clear from

the said report, applicant procured the report subsequent to the

filing of the application, behind the back of the respondents

without the aid of the court. Hence, the said report cannot be

relied on for resolving the disputes involved in this application.

42. Learned counsel appearing for the applicant heavily

relied on the entry in the revenue records. True the entry in the

„A‟ register shows in the remarks column of the disputed land in

English “Back Water” and in Tamil “Kazhuveli”. The argument

of the learned counsel appearing for the applicant is that even the

people of Tamil Nadu does not properly understand what is

„Kazhuveli‟ in Tamil and everybody understands what is „back

water‟ and when the revenue record shows that the disputed land
 51

is a „back water‟, the land cannot be used for any other purpose

except as waterbody. The stand taken by the respondent / State

is that the land is only a “Poramboke Kazhuveli” and Kazhuveli

does not mean that it is either a marsh land or back water or

water body. It is also argued that “Poramboke Kazhuveli” as per

the Revenue Department, is an unobjectionable and assignable

land.

43. The back water has been defined in Merriam-Webster

dictionary as follows:-

"1 a: Water backed up in its course by an

obstruction, an opposing current, or the tide

b: a body of water (such as an inlet or

tributary) that is out of the main current of a larger
body

2 a: an isolated or bewared place or condition

b: an unpopular or unimportant field (as of

study or business)”

The back water has been defined in Concise Oxford English

Dictionary as follows:-

“the term „Marsh‟ means, „an area of low-lying land

which is flooded in wet seasons or at high tide, and
typically remains waterlogged at all times.”

44. The Division Bench of the Hon‟ble High Court of Madras

in Susetha Vs. The Union of India (W.P.No.30725 of 2008 dated

28.07.2010) had occasion to consider the disputed land in

 52

W.P.No.30725 of 2008 is a marsh land or not. As is clear from

the said judgment the dispute in that case was with regard to the

action of the respondents in carrying out reclamation and/or

construction activity in Survey No.403/2, 3, 4, 5, 6 at Okkiam

Thoraipakkam Village and prayer was to restore the same to its

earlier state. The case of the Writ Petitioner was that the Okkiam

Thoraipakkam Village comprising an extent of 1494 acres is

situated on the peripheral area of South Chennai and is part of

the Velachery – Pallikaranai Swamp, the catchment area of which

contains as many as 90 water bodies and it is a source of copious

surface water and recharging the ground water aquifers of the

area and respondents cannot be allowed to reclaim or carry out

any construction therein. The Division Bench found that as per

the revenue records the said land is situated at a distance of 13

km East from Velachery/Pallikaranai Swamp. The revenue

records originally recorded it as back water. Therefore, the court

has to decide whether it is a marsh land or not. Holding that the

back water to be in existence, it is to be connected to Sea nearby

and the disputed land is not so connected, the Division Bench

held as follows:

“According to the Concise Oxford English Dictionary, the

term „Marsh‟ mean, „an area of low-lying land which is
flooded in wet seasons or at high tide, and typically
remains waterlogged at all times. In Geography, a
„marsh‟, or „morass‟, is a type of wetland that is subject
to frequent or continuous flood, typically the water is
 53

shallow and features grasses, rushes, reeds, typhas,

sedges and other herbaceous plants. When it has been
proved beyond doubt that the entire area is already a
developed one and the Government has handed over
the land to the Tamil Nadu Slum Clearance Board only
after clearing he encroachers in the area, no prudent
man could say that the land continues to be a marshy
one, since it will be unfit for human habitation. It is
also within the knowledge of anybody that a „backwater‟
to be in existence, it should be connected to a sea
nearby. But, the Buckingham Canal and Bay of Bengal
gets connected at a distance of nearly twenty
kilometers away from the proposed area and the land in
question is to the West of sea coast and in between the
sea coast and the land there exist several well-
developed areas such as Neelangarai, Injambakkam,
Palavakkam etc. Therefore, the possibility of sea water
flowing to the land in question is completely ruled out.
Further more, no cultivation could be expected in a back
water area.”

45. The Google Map produced by the applicant along with

the Sholinganallur Map makes it clear that the Buckingham Canal

runs South to North. Survey No.282, the subject matter in

W.P.No. 12125 of 2013, Okkiam Thoraipakkam and Karappakam

are all lying towards the West of Buckingham Canal. The

disputed lands lie to the East of Buckingham Canal. Buckingham

Canal meets the Bay of Bengal at a distance of more than twenty

kilometers away from the disputed land and there is no material

to show that the sea water or the water from the Bay of Bengal
 54

during high tide reaches anywhere near the disputed land.

Therefore, even though in the old records, the disputed land is

shown as back water, while describing in Tamil „Kdzhuveli‟, as

found by the Division Bench in Susetha‟s case (supra), it cannot

be found that the disputed land is back water.

46. On the materials now available it can only be found

that the disputed land is neither a water body nor back water nor

a marsh land. But as admitted by respondent Nos.4 and 5 in

their reply, the disputed land is a low lying area in comparison to

the road level, and it is specifically pleaded that “in fact water is

found in the said land only around 4-5 months in a year, around

the rainy season”. Therefore, it cannot be disputed that at least

for a period of 4-5 months in a year, the disputed land is

inundated with rainwater. The disputed land transferred to the

Transport Department forms part of the land which lies to the

East of Buckingham Canal and comprised in Survey No.707.

Similarly, the land lying to the West of Buckingham Canal is also

of similar nature. As a low lying area it is filled with water for

about 4-5 months in a year. These lands therefore could be

wetlands, though they are not notified wetlands under the

Wetlands (Conservation and Management) Rules, 2010 and hence

cannot claim the protection provided under the 2010 Rules.

 55

47. As the lands existing on both sides of Buckingham

Canal on the East and West are low lying lands, filled with water

during heavy rain and consequential flood, they hold the excess

water and reduce the ill-effects of flood to great extent. Thus

there is no doubt on the ecological significance of these lands

which act as a buffer in regulating the flood water. Considering

the tragic effect of the heavy rain and consequential heavy flood

experienced in Chennai during December 2015, if the nature of

such lands is to be permanently altered by reclamation or putting

up constructions and thereby destroying their function in acting

as buffer zone, in the event of such heavy rain occurring again,

the disaster could be unimaginable. Therefore, while considering

the question of reclamation or construction on the lands situated

on either side of the banks of Buckingham Canal, which are filled

with rainwater for more than three months in a year, special care

is to be taken.

48. As observed earlier, 2010 Rules provide for constitution

of Central Wetlands Regulatory Authority under Rule 5. It is not

disputed that the State of Tamil Nadu has also constituted Tamil

Nadu State Wetlands Regulatory Authority, as per G.O.(Ms.)

No.55 Environment and Forest Department dated 23.05.2015.

Rule 6, of 2010 Rules, provides the process for identification of

wetlands under different categories. As it is absolutely

 56

necessary, to protect the environment, applying the

precautionary principles we direct the Tamil Nadu State Wetlands

Regulatory Authority to inspect the lands involved in this

application comprised in Survey No.707, as well as the

undeveloped lands on both sides of Buckingham Canal, and

decide whether they are to be notified as wetlands under 2010

Rules. The applicant is at liberty to appear and make

representation before the Tamil Nadu State Wetlands Regulatory

Authority, during the process of identification of the wetlands.

The Tamil Nadu State Wetlands Regulatory Authority shall decide

whether all the protection available to the notified wetlands, is to

be extended to these lands or not, duly keeping in mind the

orders of Hon‟ble Supreme Court referred in para 26, 27 and 28

of this judgment. Naturally, the Tamil Nadu State Wetlands

Regulatory Authority shall also bear in mind the nature of these

lands, their capacity to assimilate the excess rainwater and thus

reduce the adverse effect of flood, while taking the decision. On

taking the decision, a copy of the order shall be furnished to the

applicant, who is at liberty to challenge the same in accordance

with law.

49. As far as the dispute with regard to the 7 acres of land

transferred to the Transport Department by the State, which is

the crux of the dispute between the parties before the Tribunal, it
 57

is not disputed that this area lies at the rear end of the lands in

Survey No.707 and adjacent to the developed land. The land is

transferred to the Transport Department by the State, for a public

purpose. If any construction is taken on the said land, with the

required precautions, such construction by itself may not cause

serious environmental problem. Therefore, we find it not

necessary to restrain the State from utilizing the land for

construction of the structures for the Transport Department and

for that purpose filling up that portion of the land, provided the

State and the Transport Department take all the necessary

precautions required so as to cause no harm to the nature of the

remaining land in Survey No.707. While making any construction

in the disputed 7 acre plot, the respondents shall not put any

debris or other materials on the remaining land in Survey No.707

and shall not alter the nature of the remaining land. The

permission granted shall not be a precedent to reclaim or convert

the remaining land. It is also clarified that the non granting of

prohibition against proposal of the Transport Department to

construct buildings and driving test track in 7 acres of lands in

Survey No.707, does not mean that the remaining land or any

part of it could be used for similar purpose. It is made absolutely

clear that as far as the entire remaining area is concerned, any

decision to permit any construction on all or any portion of the

remaining land, shall be taken only after the Tamil Nadu State

Wetlands Regulatory Authority considers the same and finds that

 58

construction in the said land would not cause any environmental

or ecological problem.

50. The application is therefore disposed accordingly, with

no order as to costs.

Justice M.S. Nambiar

Judicial Member

P.S. Rao
Expert Member