MRS. SUSETHAversusSTATE OF TAMIL NADU AND ORS.

                               MRS. SUSETHA                                           A
                                     v.
                       STATE OF TAMIL NADU AND ORS.

                                  AUGUST 8, 2006

                  [S.B. SINHA AND DALVEER BHANDARI, JJ.]                              B


           Environmental Law:

           Environment-Expansion of Highway project-Resettlement of persons           C
      who were displaced-Construction of shopping complex in a water tank-
     Protection ofenvironment-Panchayat decided to construct a shopping complex
     to resettle those persons who were displaced due to expansion of a Highway
     project-The State Government also issued a Government Order permitting
     construction of a shopping complex therein-The village was situated near the
     sea having five water tanks in or around therein-There was no report of any      D
     water shortage in the village-The tank land was mainly being used as a
     dumping yard for a long time-The High Court dismissed the writ petition
     challenging the aforesaid decision-Correctness of-Held: The water bodies
     are required to be retained-Natural water storage resources are not only
     required to be protected but also steps are required to be taken for restoring   E
     the same if it has fallen in disuse-However, the same principle cannot be
     applied in relation to artificial tanks-The tank in question is not a natural
      tank-Only rain water could be collected in it-It has been a dumping ground
     for a long time-Moreover, there is no shortage of water in the area-Hence,
     there is no justification for its resurrection-High Court's judgment upheld

J/         The respondent-Panchayat took a decision of constructing a shopping
     complex in a water tank lying in disuse and abandoned for the purpose
     of resettlement of those persons who were displaced due to expansion of
                                                                                      F


     a highway project. The State Government also issued a Government Order
     permitting construction of a shopping complex therein. The village was           G
     situated near the sea having five water tanks in or around therein. There
     was no report of any water shortage in the village. The tank land was
     mainly being used as a dumping yard for a long time.

           A writ petition was filed by the appellant before the High Court
     questioning the aforesaid decision, which was dismissed. Hence the appeal.       H
                                         361
    362                     SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A         Dismissing the appeal, the Court

         HELD: I. The tank in question was admittedly a temple tank. It was
    not a lake. Although it was classified in the revenue records as a tank
    poramboke, but it had lost its utility a long time back. It was being used
    as a dumping yard. There were no inlet or outlet facilities. It was also
B   prone to encroachments. 1365-BI

          2. Concededly, the water bodies are required to be retained. Such
    requirement is envisaged not only in view of the fact that the right to water
    as also quality life are envisaged under Article 21 of the Constitution of
C   India, but also in view of the fact that the same has been recognized in
    Articles 47 and 48-A of the Constitution of India. Article SI-A of the
    Constitution of India furthermore makes a fundamental duty of every
    citizen to protect and improve the natural environment including forests,
    lakes, rivers and wild life. 1366-FJ

D         Animal and Environment legal Defence Fund v. Union of India, AIR
    (1997) SC 1071, MC. Mehta (Badkhal and Surajkund lakes Matter) v. Union
    of India, [1997J 3 SCC 715 and Intellectuals Forum, Tirupathi v. State of
    A.P.. [20061 3 SCC 549, relied on.

          3.1. Maintenance of wetlands acts as a benefactor to the society.
E
         People united for better living in Calcutta - Public v. State of West
    Bengal, AIR (1993) Cal. 215, approved.

          3.2. Natural water storage resources are not only required to be
    protected but also steps are required to be taken for restoring the same if
F   it has fallen in disuse. The same principle cannot be applied in relation to
    artificial tanks. 1367-BI

         T.N. Godavarman Thirumulpad (99) v. Union of India, (20061 S SCC
    47 and l. Krishnan v. State of Tamil Nadu, AIR (2005) Mad. 311, referred
G to.
          4. This Court has not laid down a law that alienation of the property
    held as a public trust is necessarily prohibited. What was emphasized was
    a higher degree of judicial scrutiny. The doctrine of sustainable
    development although is not an empty slogan, it is required to be
H   implemented taking a pragmatic view and not on ipse dixit of the Court.
                                                                     [367-G-Hl
                                                                                    ....
              SUSETHA v. STATE OF TAMIL NADU [SINHA, J.]               363

      T.N. Godavarman Thirumulpad (99) v. Union of India, (2006) 5 SCC         A
47, Intellectuals Forum, Tirupathi v. State of A.P., (2006) 3 SCC 549 and
Bombay Dyeing & Mfg. Co. ltd. (3) v. Bombay Environmental Action Group,
(2006) 3 sec 434, referred to.

      s: The respondents categorically denied and disputed that there is
any water shortage in the village. The village is situated on both sides of    B
the National Highway. It is situated near the sea and having five water
tanks in or around therein. It is, therefore, difficult to accept that there
had been acute water shortage in the village. The tank in question is not
a natural tank. Only rain water could be colkcted in it. It has been a
dumping ground for a long time. Although there is no material on record        C
to show as to since when it has fallen in disuse, indisputably the tank in
question is in a dilapidated condition for a long time and has been used
as a dumping yard and sewage collection pond. Thus it is not a case where
resurrection should be directed. (368-F-GJ

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3418 of2006. D

      From the Judgment and Order dated 18.1.2006 of the High Court of
Judicature at Madras in W.P. No. 35942/2006.

      Indu Malhotra and Arjun Suresh for the Appellant.
                                                                               E
     Harish N. Salve, L. Nageswara Rao, V.G. Pragasam and Senthil
Jagadeesan for the Respondents.

     The Judgment of the Court was delivered by

     S.B. SINHA, J: Leave granted.                                             F
      The Appellant herein claims herself to be a member of the Okkiam
Thoraipakkam Panchayat Union. There exists a temple tank in the said village.
The village is located on both sides of the main road connecting Chennai
City with Mahabalipuram on the Old Mahabalipuram Road. The said tank
admittedly was lying in disuse. It was in fact an abandoned one. The Panchayat G
took a decision of constructing a shopping complex for the purpose of user
thereof for resettlement of those persons who were displaced due to expansion
of a highway project. The State of Tamil Nadu also issued a Government
Order permitting constructions of a shopping complex therein. A writ petition
was filed by the Appellant before the High Court of Madras, questioning the H
    364                     SUPREME COURT REPORTS (2006) SUPP. 4 S.C.R.

A said decision. By an order dated 06.12.2005, the High Court, having regard
    to the stand taken by the Respondent herein in their counter affidavit, appointed
    the Director, Centre for Water Resources, Guindy, Chennai, as the
    Commissioner to inspect the tank land and submit a report in regard to the
    condition thereof. Pursuant to or in furtherance of the said direction, an
B   inspection was carried out at the instance of the Director. A report by the
    Centre of Water Resources, College of Engineering Guindy, Anna University,
    Chennai also was filed before the High Court.

           Relying on or on the basis of the said report, a Division Bench of the
    Madras High Court by reason of the impugned order dismissed the writ
C   petition filed by the Appellant herein.

          The Appellant is, thus, before us.

          Ms. lndu Malhotra, the learned counsel appearing on behalf of the
    Appellant, submitted that keeping :n view the water shortage faced by the
D   public in general, the High Court committed a manifest error in permitting
    construction of a shopping complex on a water body.

        Drawing our attention to a decision of the Division Bench of the Madras
  High Court in L. Krishnan v. State of Tamil Nadu, AIR (2005) Madras 311,
  it was argued that the State Government was enjoined with a duty to preserve .
E the tank by taking all possible steps both by way of preventive measures as
  well as removal of unlawful encroachments and not to use the samt: for
  commerical purpose.

        Drawing our attention to a report of the Director, the learned counsel
F urged that the conclusions arrived at therein were not correct as a it was
  noticed that during rainy season, the tank did not remain dry. Resurrection
  of the tank, according to the learned counsel, being possible, the High Court
  should have exercised its extra-ordinary jurisdiction in directing so.

          Mr. Harish N. Salve, the learned Senior Counsel, appearing on behalf
G   of the Respondent-State of Tamil Nadu, on the other hand, supported the
    impugned judgment contending that the tank in question being an artificial
    tank and not a natural water resources, all considerations relevant for passing
    an appropriate order having been taken note of by the High Court, this Court
    should not exercise its discretionary jurisdiction.

H         Mr. L. Nageswara Rao, the learned Senior Counsel appearing on behalf
              SUSETHA v. STATE OF TAMIL NADU (SINHA, J.]                   365
of the Gram Panchayat, urged that the Appellant herein is not a member of A
the Gram Panchayat. It was further submitted that there had been no shortage
of water in or around the tank.

      The tank in question was admittedly a temple tank. It was not a lake.
Although it was classified in the revenue records as a tank poramboke, but
it had lost its utility a long time back. It was being used as a dumping yard.    B
There was no inlet or outlet facilities. It was also prone to encroachments.

      In its report the Centre for Water Resources, upon inspection of the
tank, drew the following conclusions:

       "(i) The catchment area available is 26, 781 m2• The present capacity      C
            of the tank is I, 86lm3 . The annual runoff potential is 8,043 m3•
       (ii) There is no specific inlet or surplus channels for the temple tank.
       (iii) The water from the tank is not directly being used by the public/
             cattle or for any other purpose.
                                                                                  D
       (iv) The water contained in the tank is unfit for human consumption.
       (v) The tank area has not been maintained properly over the years
           and has been used as a dumping yard.
       (vi) When such water bodies are not maintained property, they are
            likely to be encroached.                                              E
       (vii) From the interaction with the Public, the team learnt that but for
             the recent heavy rains, the tank would have remained dry.
       (viii)The tank area .has no access from three sides name!; South,
             North and Eastern sides and could be accessed only from the Old      F
             Mahabalipuram road side.
       (ix) The tank does not contain any built up structures like steps to
            enter, etc. but contains building debris dumped into it.
       (x) The area is surrounded by three other bigger sized tanks, two in ·
           the East and one in the west, which will be recharging the ground G
           water in that area and the recharge contribution of this temple
           tank will be insignificant.
       (xi) The Temple tank is in a dilapidated condition."

     The tank is situated in Survey No. 2 I 'h. It is abutting a highway.         H
    366                       SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A Within a kilometer from the said tank, there are five other tanks, relevant
    details whereof are as under:
                                                                  Extent

    SI. No.      Name of the Tank No.        Survey No       Hee.Acre Acre Cent

B     I.         Kannankkan Kulam              41/7          0.32.5        0.80

     2.          Kuttai                        10112         0.52.5        1.30

     3.          Aya Kulam                     207           1.03.5        2.55
     4.          Puthu Kulam                   209/9         0.31.0        0.77
c    5.          Periya Chandran Kulam         263/2A        0.70.0        1.73
                 Total                                       2.89.5        7.15

           It is aiso not ind dispute that the shops and other dwelling units abutting
    the said highway were subject matter of acquisition proceedings and the
D effected families were to be provided alternate sites, shop or dwelling units
    under the rehabilitation and settlement scheme. The State in its counter affidavit
    stated that having regard to the condition of the said tank, levelling of the
    land was taken up and completed on 15.02.2006 and, thus, it is contended
    that it is in public interest that the proposed shopping complex are allowed
E   to be constructed.

          Concededly, the water bodies are required to be retained. Such
    requirement is envisaged not only in view of the fact that the right to water
    as also quality life are envisaged under Article 21 of the Constitution of
    India, but also in view of the fact that the same has been recognized in
F   Articles 47 and 48-A of the Constitution of India. Article 51-A of the
    Constitution of India furthermore makes a fundamental duty of every citizen
    to protect and improve the natural environment including forests, lakes, rivers
    and wild life. (See Animal and Environment legal Defence Fund v. Union
    of India and Ors., AIR (1997) SC 1071; M.C. Mehta (Badkhal and Surajkund
G   lakes Matter V. Union of India and Ors., (1997) 3 sec 715 and Intellectuals
    Forum, Tirupathi v. State of A.P. and Ors., (2006) 3 SCC 549.

          Maintenance of wetlands was highlighted by the Calcutta High Court
    in People united for better living in Calcutta - Public and Anr. v. State of
    West Bengal and Ors.. AIR (1993) Cal. 215, observing that the wetland acts
H   as a benefactor to the society.
                            ,.,
               SUSETHA v. STATE OF TAMIL NADU [SINHA, J.]                    367
     Recently, in T.N. Godavaraman Thirumulpad (99) v. Union of India                A
and Ors., (2006] 5 SCC 47, this Court again highlighted the importance of
preservation of natural lakes and in particular those which are protected
under the Wild Life (Protection) Act, 1972.

      We may, however, notice that whereas natural water storage resources
are not only required to be protected but also steps are required to be taken        B
for restoring the same if it has fallen in disuse. The same principle, in our
opinion, cannot be applied in relation to artificial tanks.

      In L. Krishnan (supra), the Division Bench of the Madras High Court
had been dealing with natural resources providing for water storage facility         C
and in that view of the matter the State was directed to tc.ke all possible steps
both preventive as also removal of unlawful encroachments so as to maintain
the ecological balance.

      The matter has also been considered at some details by this Court in
Intellectuals Forum, Tirupathi (supra), wherein again while dealing with             D
natural resources, it was opined:

        "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
        negatory angle, the doctrine does not exactly prohibit the alienation
        of the property held as a public trust. However, when the state holds        E
       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 scrutinize 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        F
       special, more demanding obligation which it may have as a trustee of
       certain public resources ...."

                                                            [Emphasis supplied]

      This Courts have not, in the aforesaid decisions, laid down a law that         G
alienation of the property held as a public trust is necessarily prohibited.
What was emphasized was a higher degree of judicial scrutiny. The doctrine
of sustainable development although is not an empty slogal), it is required to
be implemented taking a pragmatic view and not on ipse dixit of the court.
                                                                                     H
    368                     SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A         In Bombay Dyeing & Mfg. Co. Ltd (3) v. Bombay Environmental Action
    Group and Ors., [2006] 3 SCC 434, referring to a large number of decisions,
    it was stated that whereas need to protect the environment is a priority, it is
    also necessary to promote development stating:

            " ... The harmonization of the two needs has led to the concept of
B           sustainable development, so such that it has become the most
            significant and focal point of environmental legislation and judicial
            decisions relating to the same. Sustainable development, simply put,
            is a process in which development can be sustained over generations.
            Brundtland Report defines 'sustainable development' as development
            that meets the needs of the present generations without compromising
c           the ability of the future generations to meet their own needs. Making
            the concept of sustainable development operational for public policies
            raises important challenges that involve complex synergies and trade
            offs."

D        Treating the principle of sustainable development as a fundamental
    concept of Indian law, it was opined:

                "The development of the doctrine of sustainable development
            indeed is a welcome feature but while emphasizing the need of
            ecological impact, a delicate balance between it and the necessity for
E           development must be struck. Whereas it is not possible to ignore
            inter-generational interest, it is also not possible to ignore the dire
            need which the society urgently requires."

          The case at hand must be judged having regard to the aforementioned
    pr!nciple in mind. The Respondents categorically denied and disputed that
F   there is any water shortage in the village. The village is situated near a sea
    having five water tanks in or around therein. It is, therefore, difficult to
    accept that there had been acute water shortage in the village, as was submitted
    by Ms. Malhotra. The tank in question is not a natural tank. Only rain water
    could be collected in it. It has been a dumping ground for a long time.
G   Although. there is no material on records to show as to since when it has
    fallen in disuse, indisputably the tank in question is in a dilapidated condition
    for a long time and has beer. used as a dumping yard and sewage collection
    pond. In our opinion, thus, it is not a case where we should direct its
    resurrection.

H         The High Court in its judgment has taken into consideration all relevant
               SUSETHAv. STATE OF TAMIL NADU [SINHA,J.]                      369
factors. It was not pointed out that essential features or other relevant principles A
of law were not taken into consideration by the High Court in passing the
impugned judgment.

      We would, however, direct the. State and Gram Panchayat to see that
other tanks in or around the village are properly maintained and necessary
steps are taken so that there is no water shortage and ecofogy is preserved.       B
       For the foregoing reasons, we do not find any reason to interfere with
the impugned judgment. The appeal is dismissed without any order as to
costs.

v.s.s.                                                       Appeal dismissed.     C