[Link].

40329 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.09.2021

CORAM

THE HONOURABLE [Link] [Link]

[Link].40329 of 2016
and
[Link].34404 of 2016

EVP Estates and Properties Development Ltd.,

[Link] its Chairman [Link] Reddy
23, Sir Thiyagaraya Road, Pondy Bazaar,
[Link], Chennai – 600017. ...Petitioner

Vs

Tamil Nadu Public Works Department,

[Link] its Chief Engineer,
Cheppakkam,
Chennai – 600 005. ... Respondent

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 [Link].1/1, 1/2A, 1/2B and 2/2 in
Nemilicherry Village and [Link].35/1 in Karunakaracherry Village,
Poonamallee Panchayat, Poonamallee Taluk, Thiruvallur District, belonging
to and owned absolutely by the petitioner.
For Petitioner :[Link]

For Respondent : [Link]

Government Advocate

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ORDER
The relief sought for in the present writ petition is to forbear the

respondents from constructing a Canal in the land in [Link].1/1, 1/2A, 1/2B

and 2/2 in Nemilicherry Village and [Link].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

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course in [Link].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 [Link].10/3, 11/2, 27/3, 29 and 37 of

Nemilicherry Village of Tiruvallur District and enters into the limits of

[Link].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.

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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

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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 [Link]. 37, 29, 27/3,
10/3, and 11/2. After traversing in the patta land of the
petitioner in [Link].9, 2, 1 of Nemilicherry Village, the course
again enters into Government land in [Link]. 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

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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

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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

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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

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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:

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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

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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

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constructed a culvert in [Link].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 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

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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.

23.09.2021

Internet:Yes
Index : Yes
Speaking order:Yes
kak

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To

[Link] Secretary,
Public Works Department,
Fort [Link],
Chennai – 600 009.

[Link] District Collector,

Thiruvallur District,
Thiruvallur.

[Link] Executive Engineer,

Tamil Nadu Public Works Department,
Thiruvallur District,
Thiruvallur.

[Link] Director of Tamil Nadu Panchayats,

Kuralagam,
Chennai – 600 108.

[Link] Chairman,
Tamil Nadu Slum Clearance Board,
Kamaraj Salai, Chennai – 600 005.

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[Link], J.

kak

[Link].40329 of 2016

23.09.2021

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