WP(MD)Nos.

2344 and 3002 of 2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 04.03.2020

PRONOUNCED ON : 20.03.2020

CORAM:

THE HONOURABLE MR.JUSTICE P.N.PRAKASH

and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI

W.P(MD)Nos.2344 and 3002 of 2020

and
W.M.P(MD)Nos.1993 and 2535 of 2020

W.P(MD)No.2344 of 2020

Nagoor Anifa ... Petitioner

Vs.

1.The District Collector,

Theni District.

2.The Tahsildar,
Andipatti Taluk,
Theni District.

3.The Block Development Officer,

Mayiladumparai Panchayat Union,
Theni District.

4.Varusanadu Pagudhi Kanmaai Pasana Vivasayigal Sangam

(Reg.No.247 of 2019),
represented by its President,
Vaigai Nagar, Varusanadu Main Road,
Andipatti Taluk,Theni District. ... Respondents

[R4 impleaded vide

Court order dated
04.03.2020 in
W.M.P(MD)No.3960 of
2020 ]

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 WP(MD)Nos.2344 and 3002 of 2020

Prayer: Writ Petition filed under Article 226 of the

Constitution of India praying for the issuance of a Writ
of Mandamus, forbearing the respondents not to cut off
5000 and odd trees and to do deforestation works in Survey
No.550 in Mayiladumparai Village, Theni District as of
now, if any.

For Petitioner : Mr. Niranjan S.Kumar

For Respondent : Mr.K.Chellapandian,
Nos.1 to 3 Additional Advocate General,
assisted by
Mr.J.Gunaseelan Muthaiah,
Additional Government Pleader

W.P(MD)No.3002 of 2020

Chinna Thangam ... Petitioner

Vs.

1.The District Collector,

Office of the District Collector,
Theni District.

2.The Revenue Divisional Officer,

Office of the Revenue Divisional Officer,
Periyakulam,Theni District.

3.The Block Development Officer,

Office of the Block Development Officer,
Mayiladumparai Panchayat Union,
Theni District. ... Respondents

Prayer: Writ Petition filed under Article 226 of the

Constitution of India praying for the issuance of a Writ
of Mandamus, forbearing the respondents, their men or
agents from cutting off trees and from doing deforestation
works in Survey No.550 in Mayiladumparai Village,
Audipatti Taluk, Theni District.

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 WP(MD)Nos.2344 and 3002 of 2020

For Petitioner : Mr. Niranjan S.Kumar,

for Mr.V.Balaji
For Respondent : Mr.K.Chellapandian,
Nos.1 to 3 Additional Advocate General,
assisted by
Mr.J.Gunaseelan Muthaiah,
Additional Government Pleader

COMMON ORDER

(Order of the Court was made by B.PUGALENDHI, J.)

Since the issue involved in both these petitions

is one and the same, they are disposed of by way of this

common order.

2.These writ petitions are filed as pro bono

publico, by the residents of Varusanadu village, for

issuance of a writ of mandamus, forbearing the official

respondents, their men or agents from cutting the trees in

survey No.550 in Mayiladumparai Village, Aundipatti Taluk,

Theni District.

3.The concern of the writ petitioners is that the

Survey No.550 in Mayiladumparai village in a piece of

Poramboke land to the extent of 64 acres, there are

around 5000 grown up trees, existing for several decades

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 WP(MD)Nos.2344 and 3002 of 2020

and those trees are maintaining the ecology of the

village. Now, the official respondents are attempting to

cut those trees from the said survey number. Opposing the

aforesaid deforestation proposal, the petitioners and

other villagers approached the respondents, but it evoked

no response. Hence, they filed these writ petitions.

In support of their claim, they relied on their

representations dated 04.02.2020 and 10.02.2020.

4.Taking notice in WP(MD)No.2344 of 2020, the

Block Development Officer, Mayiladumparai Panchayat Union,

filed a counter affidavit that the Survey No.550 at

Varusanadu Village of Mayiladumparai Panchayat Union is

classified as a water body poramboke in the revenue

records and it is called Varusanadu Panjanthanki Kanmai,

to an extent of 25.90.00 hectares. One Gopinath and six

others have encroached upon the water body and cultivated

trees in the said Kanmai and also in the water catchment

area. They also applied for 2C patta, to harvest the

fruits from the trees to the Tahsildar, Aundipatti Taluk

and he issued 2C patta on 05.12.1996 in favour of one

PNS.Gopinath and six others. Since the orders issued by

the Tahsildar, Aundipatti in granting 2C Patta contrary to

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 WP(MD)Nos.2344 and 3002 of 2020

the Government Orders in G.O.No.705 Revenue Department,

dated 19.06.1992, without any jurisdiction and also by

violation of the Tamil Nadu Panchayat Act, 1994, the

District Collector, Theni cancelled the resolution of the

Special Officer, Varusanadu dated 03.09.1996 recommending

for 2C patta and also issued necessary instructions to the

Revenue Divisional Officer Periyakulam to cancel the 2C

patta granted by the Thasildar. Accordingly, the Revenue

Divisional Officer by his proceedings in ROC No.2476/97,

dated 27.09.1997 cancelled that 2C patta issued by the

Thasildar without any jurisdiction. Aggrieved over the

same, those 2C pattadars filed an appeal before the

District Revenue Officer and the District Revenue Officer,

by his proceedings ROC.No.50071/2007/Q3, dated 11.08.2011

confirmed the orders of the Revenue Divisional Officer.

5.Aggrieved over that order, the 2C pattadars

filed a review before the Commissioner of Land

Administration, Chennai and also filed a writ petition in

WP.No.25990 of 2011. The said writ petition was disposed

of on 11.11.2011 with a direction to the Commissioner of

Land Administration to dispose of the review petition

within a period of three months. Accordingly, the

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 WP(MD)Nos.2344 and 3002 of 2020

Commissioner of Land Administration, conducted a detailed

enquiry by affording opportunity to the 2C pattadars, the

Village Administrative Officer and the Zonal Deputy

Tahsildar and also examined the revenue records, rejected

the review petition and confirmed the orders of the

District Revenue Officer, holding that the orders of the

Tahsildar granting 2C patta for hundreds of members for a

single family is irregular, as per G.O.No.705, Revenue

Department, dated 19.06.1992.

6.During the said proceedings, the Village

Administrative Officer of Mayiladumparai filed a written

statement that no 2C patta register was maintained in

their village. As against the orders of the Commissioner

Land Administration, a writ petition was filed by the 2C

pattadars in WP.No.13118 of 2012 and the same was also

dismissed with a direction to the revenue officials to

remove all the encroachments within a period of six weeks

from the date of receipt of a copy of the order and to

restore, the Panjanthanki Kanmai. The 2C pattadars also

filed a writ appeal as against that order in WA.No.131 of

2020 and the same was disposed of by the First Bench of

this Court at Principal Seat at Madras, by order dated

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 WP(MD)Nos.2344 and 3002 of 2020

14.02.2020 confirmed the orders of the Commissioner of

Land Administration dated 20.03.2012 and dismissed the

writ appeal and confirmed the order passed in the said

writ petition. However, the Division Bench modified the

order dated 19.11.2019 passed in WP.No.13118 of 2012, by

expunging the directions contained in paragraph No.6 of

the said order.

7.The present two writ petitions are filed on

05.02.2020 and 12.02.2020 respectively that the trees in

the water body shall not be removed.

8.Varusanadu Pagudhi Kanmaai Pasana Vivasayigal

Sangam, a registered society registered under the

Societies Act, filed an impleading petition in WMP(MD)No.

3960 of 2020 in WP(MD)No.2344 of 2020 that they are

necessary party to these proceedings and these writ

petitions have been filed at the instance of the

encroachers and the impleading petition was allowed by

this Court by order dated 04.03.2020. According to the

impleading petitioner, these writ petitions have been

filed with a personal oblique motive in order to safeguard

the encroachers of the land in survey No.550, which is a

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 WP(MD)Nos.2344 and 3002 of 2020

water body called Panjanthanki Kanmai. The said Kanmai is

the main water source of their area for cultivation,

irrigation, drinking and cattle feeding. Further the same

is the source for cattle grass feeding in the non monsoon

seasons. Due to the above said encroachment, the water

catchment area of the said Kanmai is diminishing and the

storage capacity of the above said Kanmai is also loosing

its storage capacity in a rapid manner. Only in order to

bypass the order of this Court dated 19.11.2019 passed in

W.P.No.13118 of 2012, the present writ petitions have been

filed.

9.Heard Mr.Niranjan S.Kumar, learned Counsel for

the petitioners, Mr.K.Chellapandian, learned Additional

Advocate General assisted by Mr.J.Gunaseelan Muthaiah,

appearing for the official respondents and Mr.R.Shankar

Ganesh, learned Counsel appearing for the newly impleaded

respondent.

10.According to the petitioners, in the land in

Survey No.550 of Mayiladumparai village there are 5000

trees and they play a vital role in maintaining the

ecology of the village.

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 WP(MD)Nos.2344 and 3002 of 2020

11.A perusal of the records shows that the Survey

No.550 in Varusanadu Village Panchayat, Mayiladumparai

Panchayat Union is classified as a water body poramboke.

Though 2C patta was granted in favour certain persons on

05.12.1996, the same was cancelled on 27.09.1997 by the

Revenue Divisional Officer, Periyakulam in ROC.No.2476 of

1997 that the said 2C patta was issued contrary to the

rules and regulations. Though several round of litigations

took place, the issue reached a finality that the

encroachments to be removed.

12.The importance of water bodies and the

necessity for preserving the same has been discussed

elaborately in the following judgments:

(i) In L.Krishnan v. State of Tamil Nadu and

others,reported in 2005-3-LW-313, a Division Bench of this

Court has held as follows:

“4. ...We feel it appropriate to pass this

order and give certain other directions to the
first respondent State Government to make an
overall study of all such encroachments in respect
of the lands which have been classified as lands
meant for the purpose of storage of water (ie.,

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 WP(MD)Nos.2344 and 3002 of 2020

ponds, tanks, lakes etc.). We are of the view that

in the present day context, such a step is
required to be taken by the State in order to
improve the water storage facility prevailing in
this State since in many parts of Tamil Nadu
people are suffering from an acute shortage of
water.

5. Since time immemorial ponds, tanks and

lakes have been used by the people of our Country,
particularly in rural areas, for collecting rain
water for use for various purposes. Such ponds,
tanks and lakes have thus been an essential part
of the people's natural resources. However in
recent years these have been illegally encroached
upon in many places by unscrupulous persons who
have made their constructions thereon, or diverted
them to other use. This has had an adverse effect
on the lives of the people.

6. It is also relevant to state that day in

and day out, many such petitions are being filed
by way of 'public interest litigation' alleging
encroachments into ponds/tanks/lake/odai
porambokes etc., in different parts of this State,
more particularly in villages. Having regard to
the acute water scarcity prevailing in the State
of Tamil Nadu as a whole, we feel that a time has
come where the State has to take some definite
measures to restore the already ear marked water

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 WP(MD)Nos.2344 and 3002 of 2020

storage tanks, ponds and lakes, as disclosed in

the revenue records to its original status as part
of its rain water harvesting scheme.”

(ii) This decision rendered in L.Krishnan v. State

of Tamil Nadu was subsequently approved by the Hon'ble

Supreme Court in Jagpal Singl & others v. State of Punjab

& others, reported in 2011-3-LW-17, wherein, the Hon'ble

Supreme Court has held as follows:

“5. What we have witnessed since

Independence, however, is that in large parts of
the country this common village land has been
grabbed by unscrupulous persons using muscle
power, money power or political clout, and in many
States now there is not an inch of such land left
for the common use of the people of the village,
though it may exist on paper. People with power
and pelf operating in villages all over India
systematically encroached upon communal lands and
put them to uses totally inconsistent with its
original character, for personal aggrandizement at
the cost of the village community. This was done
with active connivance of the State authorities
and local powerful vested interests and goondas.
This appeal is a glaring example of this
lamentable state of affairs.

...

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 WP(MD)Nos.2344 and 3002 of 2020

17. In this connection we wish to say that

our ancestors were not fools. They knew that in
certain years there may be droughts or water
shortages for some other reason, and water was
also required for cattle to drink and bathe in
etc. Hence they built a pond attached to every
village, a tank attached to every temple, etc.
These were their traditional rain water harvesting
methods, which served them for thousands of
years.”

(iii) The Hon'ble Supreme Court, in the

aforesaid decision, has also issued the following

direction:

“22. Before parting with this case, we give

directions to all the State Governments in the
country that they should prepare schemes for
eviction of illegal/unauthorised occupants of Gram
Sabha / Gram Panchayat / Poramboke / Shamlat land
and these must be restored to the Gram Sabha /
Gram Panchayat for the common use of villagers of
the village. For this purpose, the Chief
Secretaries of all State Governments / Union
Territories in India are directed to do the
needful, taking the help of other senior officers
of the Governments. The said scheme should provide
for the speedy eviction of such illegal occupant,
after giving him a show cause notice and a brief
hearing. Long duration of such illegal occupation
or huge expenditure in making constructions
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 WP(MD)Nos.2344 and 3002 of 2020

thereon or political connections must not be

treated as a justification for condoning this
illegal act or for regularizing the illegal
possession. Regularization should only be
permitted in exceptional cases, e.g., where lease
has been granted under some Government
notification to landless labourers or members of
Scheduled Castes / Scheduled Tribes, or where
there is already a school, dispensary or other
public utility on the land.”

(iv) After the decision in L.Krishnan's case (cited

supra), the State Government has enacted the Tamil Nadu

Protection of Tanks and Eviction of Encroachment Act,

2007, with a view to provide measures for checking

encroachments, eviction of encroachments and for the

protection of the tanks.

(v) The constitutional validity of this Act was

challenged in T.S.Senthil Kumar v. State of Tamil Nadu &

others, reported in (2010) 3 MLJ 771, that no opportunity

was provided in the Statute to the aggrieved parties. A

Division Bench of this Court has discussed the issue in

detail and has also relied upon the decision of the

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 WP(MD)Nos.2344 and 3002 of 2020

Supreme Court in (2006) 3 MLJ 201 (SC), in the case of

Intellectuals Forum v. State of Andhra Pradesh, wherein it

has been held as follows:

“29.The responsibility of the State to

protect the environment is now a well accepted
notion in all countries. It is this notion that,
in international law, gave rise to the principle
of “state responsibility” for pollution emanating
within one's own territories (Chorfu Channel Case,
ICJ Reports (1949) 4). This responsibility is
clearly enunciated in the United Nations
Conference on the Human Environment, Stockholm
1972 (Stockholm Convention), to which India was a
party. The relevant Clause of this Declaration in
the present context is paragraph 2, which states:

'The natural resources of the earth,

including the air, water, land. Flora and fauna
and especially representative samples of natural
ecosystems, must be safeguarded for the benefit of
present and future generations through careful
planning or management, as appropriate.'”

(vi) The Division Bench in T.S.Senthil Kumar's

case (cited supra), while upholding the Act, had also

issued the following directions:

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 WP(MD)Nos.2344 and 3002 of 2020

“(a) The State shall scrupulously follow the

provisions of the Act. It shall also ensure that
all the District Collectors and other authorities,
who are concerned with the observance of the
provisions of the Act, strictly follow the letter,
dated 10.10.2007.
(b) The District Collectors, while creating
adequate awareness, may also enlist the help of
Self Help Groups to disseminate the message 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 which are filled with
garbage and to avoid dumping of garbage will
automatically enhance and improve the public
health of the community.
(c) As already stated, the State will
ensure that alienation of tank poramboke lands,
citing public interest, shall not be made under
Section 12 of the Act. The meaning and weight of
the words “public interest” shall be implicitly
borne in mind.
(d) The State holds all the water bodies in
public trust for the welfare of this generation
and all the succeeding generations and, therefore,
protecting water bodies must be given as much
weightage, if not more as allowing house-sites or
other buildings to come up on such tanks or tank
poramboke lands, and water charged lands.

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 WP(MD)Nos.2344 and 3002 of 2020

(e) The State shall also bear in mind the

provisions of this Act and the objects and reasons
of this Act while issuing patta to persons who
claim to have resided in the same place for a
number of years and if necessary modify the
relevant Government Orders to make sure that the
implementation of these G.Os. are not in violation
of this very valuable and important Act, namely
Tamil Nadu Protection of Tanks and Eviction of
Encroachment Act, 2007.
(f) We uphold the Act, while we provide for
observance of principles of natural justice within
the Act itself, as under:
(i) When the officer of the Public Works
Department publishes the notice in Form-II in the
notice boards of the offices of Village
Administrative Officer, Village Panchayat Office
and the Water Resources Organization, 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 and
secondly, the notice in Form-III of the Rules may
be issued.
(ii) 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.
(iii) Thereafter, the authorities shall
consider the objections and pass appropriate

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 WP(MD)Nos.2344 and 3002 of 2020

orders, in accordance with the provisions of the

Act, giving time to the encroachers to remove the
encroachment.”

(vii) Even thereafter, a Public Interest

Litigation has been filed seeking Patta in water bodies

based on G.O.Ms.No.854 dated 30.12.2006, read with

G.O.Ms.No.372 dated 26.08.2014. In this regard, a

reference was made to a larger Bench and the larger Bench

of this Court, in T.K.Shanmugam, Secretary, C.P.I. (M) v.

State of Tamil Nadu & others, reported in 2015-5-LW-397,

has answered the reference as follows:

“45. In the light of the above, we

answer the reference on the following terms:-
The provisions of the Tamil Nadu Protection of
Tanks and Eviction of Encroachment Act, 2007,
does not in any manner dilute the observations
/ directions issued in L.Krishnan v. State of
Tamil Nadu reported in 2005-3-LW-313 = 2005
(4) CTC 1, as quoted with the approval by the
Hon'ble Supreme Court in Jagpal Singh v. State
of Punjab, reported in 2011-3-LW-17 = (2011)
11 SCC 396, and the observations contained in
paragraph 20(d)(e) of the judgment of the
Division Bench in T.S.Senthil Kumar v.
Government of Tamil Nadu, reported in 2010-3-
MLJ-771 and that the tanks which do not fall
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 WP(MD)Nos.2344 and 3002 of 2020

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.”

13.Even after repeated orders of the Supreme Court

as well as this Court, the encroachments in water bodies

were neither curtailed nor removed.

14.The petitioners, claiming to be the Public

Interest Litigants, filed these writ petitions for

protecting environment, claiming the existence of trees

would preserve the water. Both the petitioners have

claimed that they are agriculturists, but when the issue

was pending for the last 25 years, they have not come

forward to file any writ petition. Both the petitioners

have sworn that no public interest litigation was filed

before this Court for the same relief. The writ petition

in WP(MD)No.2344 of 2020 was filed on 05.02.2020 and it

came up for admission on 06.02.2020 and the matter was

adjourned to 13.02.2020, for getting instructions from the

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 WP(MD)Nos.2344 and 3002 of 2020

official respondents. Only thereafter, WP(MD)No.3002 of

2020 was filed on 12.02.2020 and the representation in

this case was sent on 10.02.2020. It appears that since no

interim injunction was granted in WP(MD)No.2344 of 2020,

the writ petition in WP(MD)No.3002 of 2020 came to be

filed, when the Writ Appeal was about to be taken by the

Division Bench at Principal Seat at Madras.

15.A bare reading of both the affidavits filed in

support of the petitions, shows that the contents are one

and the same. This itself shows that they know the filing

of the writ petition for the very same relief. However,

made a false undertaking that no other similar writ

petition is filed. The timing in which the writ petitions

filed would also expose the intention behind the writ

petitions.

16.When the respondents have come up with a stand

that the land in Survey No.550 at Mayiladumparai is

classified as water body and with the particulars of the

several round of litigations that have taken place in this

connection, the petitioners have not even filed a single

document in support of their claim except the

representation.

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17.Before filing these Public Interest

Litigations, the petitioners should have ascertained the

reasons for the removal of the trees, from the authorities

concerned and should have collected the relevant

particulars.

18.The trees were grown up on the water body and

were in existence for more than 50 years. 2C Patta was

issued in the year 1996 by the Tahsildar without

jurisdiction and the said 2C patta was cancelled in the

year 1997. The encroachers were successful in dragging the

proceedings for more than 23 years and the entire water

body was occupied by the members of a single family.

19.In view of the above discussion, we find no

public interest in the writ petitions. In the result, the

writ petitions are dismissed with a cost of Rs.10,000/-

each to the petitioner and the cost shall be paid towards

the Hon'ble Chief Justice Relief Fund Consequently,

connected miscellaneous petitions are closed.

[P.N.P.,J.] [B.P., J.]

20.03.2020
Index : Yes / No
Internet : Yes / No
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 WP(MD)Nos.2344 and 3002 of 2020

To

1.The District Collector,

Theni District.

2.The Tahsildar,
Andipatti Taluk,
Theni District.

3.The Block Development Officer,

Mayiladumparai Panchayat Union,
Theni District.

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 WP(MD)Nos.2344 and 3002 of 2020

P.N.PRAKASH J.
and
B.PUGALENDHI, J.

dsk

W.P(MD)Nos.2344 and 3002 of 2020

and
W.M.P(MD)Nos.1993 and 2535 of 2020

20.03.2020

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