Country
India
Sources
InforMEA
Tagging
Forests, Wetlands, Wildlife, Remedies, Land Use, Inspections, Protected Areas, Constitutional, Standing, Property
Abstract
The Government have enacted the 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Act' with a view to provide measures for checking the encroachment, eviction of encroachments in tanks and protection of such tanks which are under the control and management of Public Works Department. The Government have also made the 'Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007' to the said Act. This writ petition has been filed for a declaration that Sections 4, 5, 6, 7, 8, 9 and 10 of the Act as null and void and contrary to Article 14 of the Constitution of India and also to quash the impugned order passed by the Water Resources Organisation, Public Works Department. According to the petitioner the impugned Sections of the Act confer upon the Executive, an unguided and uncanalised discretionary power, since they deny to the person aggrieved an opportunity of being heard prior to the issuance of the eviction. The respondent State and the Court cited L. Krishnan vs. State of Tamil Nadu, A.I.R. 2005 Madras 311, submitted that right to water is part of right to life guaranteed under Article 21 of the Constitution and if all natural water storage resources are encroached upon indiscriminately, then the consequences will have a devastating adverse effect on the lives of people. It also cited Hinch Lal Tiwari v. Kamala Devi and Ors., AIR 2001 SC 3215to show that the endeavour of the State should be to protect the material resources like forests, tanks, ponds, hillock, mountain, etc., in order to maintain the ecological balance. Reference was also made to M.C. Mehta v. Union of India, (1997) 3 S.C.C. 715, where the Supreme Court observed that Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. Also the obligations under the Ramsar Convention includes as wetlands, not only natural wet lands, but even human-made wetlands such as waste water treatment ponds and reservoirs. Therefore, tanks and tank poramboke lands would definitely require protection from encroachment. Based on the principles of sustainable development, inter-generational equity and public trust doctrine, demands of economic development must be made without compromising the natural resources of the earth which this generation holds in trust for future generation. The Court held that the provisions contained in such Act not only contains the power of the State Government to remove the encroachments but also includes the procedure to be followed and the remedy of the persons. There is nothing in the Act which excludes the principles of natural justice. The Act does not specifically indicate that the encroachers do not have a right to be heard and therefore the consequent directions were issued to ensure that all the District Collectors,shall create adequate awareness that protection of water resources will actually promote the welfare of the villages and therefore it is in the interest of every citizen to make sure that he is not encroaching on a tank and to clear tanks and water bodies. The State will ensure that alienation of tank poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The State holds all the water bodies in public trust and, therefore, protecting water bodies must be given as much weightage as allowing house-sites or other buildings to come up on such tanks. The Court upheld the Act, while providing for observance of principles of natural justice within the Act itself. When the officer of the Public Works Department publishes the notice, notice shall also be issued to the alleged encroacher to the effect that the survey indicates that the place in his/her occupation is an encroachment. On receipt of the said notice, the encroacher may give his/her objections relating to the classification of the land in his/her occupation and the nature of the encroachment within a period of two weeks. Thereafter, the authorities shall consider the objections and pass appropriate orders, in accordance with the provisions of the Act, giving time to the encroachers to remove the encroachment.