FACTS OF THE CASE
The Buckingham Canal is a man-made canal built by the British, the Buckingham Canal was originally called Cochrane's Canal after Basil Cochrane, who had funded the first section. In the late 19th and early 20th centuries, it was a significant waterway. In 1878, it was given the new name Buckingham Canal in honour of the Duke of Buckingham and Chandos, the former Governor of Madras.
The Buckingham Canal is a fresh water navigation canal, that parallels the Coromandel Coast of South India from Kakinada City in the Kakinada district of Andhra Pradesh to Viluppuram District in Tamil Nadu. The canal connects most of the natural backwaters along the coast to Chennai port.
According to the petitioner, the illegal encroachments include the hutment of the slum dwellers as well as the semi-concrete and concrete structures constructed for residential and commercial purposes. The petitioner contends that the illegal encroachments on the Canal bank road generate a lot of garbage which are thrown into the Canal and as such the Canal cannot serve as Storm water drain. The petitioner made a RTI application raising certain queries regarding the encroachments in the Buckingham Canal road in the stretch of Kasthuriba Nagar and Indra Nagar.
A writ petition of Mandamus under Article 226 of the Constitution was filed for removal of these encroachments on the stretch of Kasthurba Nagar and Indra Nagar on Buckingham Canal. The encroachments include:
o Huts built on the Canal and people living in inhuman conditions. s
o Concrete Residential Buildings.
o Commercial Establishments.
o Construction of Chennai Mass Rapid Transit System (MRTS) Stations and pillars on the Canal from Chepauk to Thiruvanmiyur.
During the monsoon period, the canal filled to the brim as the repeated encroachment led to the generation of garbage which was thrown into the Canal and due to which the cannot could not serve as the storm water drain.
A RTI application was made in this regard. Responses to RTI questions provided by the respondent on January 9, 2014, where the six-respondent acknowledged that the removal of unauthorised encroachments was taking into account the legislation.
ISSUE INVOLVED
· The issue at hand is related to the development of Buckingham Canal from Sholinganallur to Puducherry for transportation, shipping, and navigation purposes which has been due since 2015. Due to repeated encroachments on the canal such as:
o Huts built on the Canal and people living in inhuman conditions.
o Concrete Residential Buildings.
o Commercial Establishments.
o Construction of Chennai Mass Rapid Transit System (MRTS) Stations and pillars on the Canal from Chepauk to Thiruvanmiyur.
· There was also a delay in construction of the Buckingham Canal due to these above-mentioned encroachments. With the passage of time, in the monsoon season, the canal could not handle the amount the water which in consequence troubled the citizens living nearby.
· The Inland Waterways Authority of India (IWAI) submitted before the Madras High Court that it could not take up development of the Buckingham Canal since 2015 due to heavy encroachments on the national waterway and that it was up to the State government to clear those encroachments.
JUDGMENT OF THE CASE
· In its ruling, the Madras High Court ordered the Tamil Nadu government to return the Buckingham Canal, which has been shrunk and contaminated by encroachments after running through the city for centuries, to its former beauty within six months. The bench ruled that the engineer assigned to the area must rigorously abide by the six-month deadline set for demarcating the Buckingham Canal's boundaries. Given that this matter has been pending since 2014, the bench made it clear that the deadline will never be extended.
· The ruling further refers to the Judgment of the Hon'ble Supreme Court on doctrine of Public trust and finally certain suggestions are given for consideration of the Hon'ble Court.
· It was also observed that no court shall consider any dispute involving encroachments along the canal or issue a restraining order against the relevant authorities that would interfere with the execution of this order or the removal of the encroachment. The first bench of the Court will hear any writ petitions that might be submitted.
· The bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala observed that the citizens and the government were two wheels of development and if any one wheel derails, it will affect the development.It was noted by the hon’ble bench that ‘encroachments are a direct reflection on the failure of the Government to provide the basic need of shelter to the poor.’
· In the said order the Hon'ble Court further observed that the Government could not regularise the encroachments in the said area as the same was covered under the provisions of the National Waterways Authority 20/39 https://www.mhc.tn.gov.in/judis W.P.No.6609 of 2014 Act 2016. The Inland Water Authority of India (IWAI) in its counter to the writ petition clarified that it was the responsibility of the State Government to remove the encroachments along the canal.
· The bench also reminded the words of Mahatma Gandhi — “be the change you want to see”. If we aspire for a clean and pollution free environment then we as civic citizens have to contribute towards it.
CASE ANALYSIS
· In light of the facts and the circumstances of this case, it can be safely inferred that encroachments are a clear indicator that the government has failed to meet the poor people's basic demand for shelter. Urban sprawl has invaded government-owned unoccupied lands, water bodies, channels, and canals, among other things, as a result of fast urbanisation. The removal of encroachment and restoration of the Buckingham Canal, which was formerly a navigable canal, are the main issues at stake in this public interest litigation. Although the Buckingham Canal was designated as a National Inland Waterway (NW-4) by the Central Government with the intention of developing it for the purposes of shipping and navigation, this effort was hampered by the rampant encroachment along the canal.
· It turned out that sewage water was being discharged into the canal, which had contaminated it and rendered it useless. A breeding site for mosquitoes, it also contributes to a number of water-borne diseases. Buckingham Canal encroachments are not statistically documented, despite figures being provided for encroachments on the Adyar and Cooum Rivers. The rationale is that the enumeration, eviction, and rehabilitation of the encroachers cannot be done until the canal's boundary has been established. Therefore, it is important to consider the actions completed and the timeline set forth for this exercise.
· It is the duty of every citizen to protect and improve the national environment and national Assets like Rivers, Canals, Water bodies etc. Forests, rivers, water bodies, wildlife etc. are our national wealth and they do not belong to an individual, Government or Authority. The Government is the custodian of this wealth and as beneficiaries of this wealth, it is as much our duty as that of the Government to preserve and treasure our natural resources and environment for posterity.
CONCLUSION
· We need environment to survive and not the other way round. The Buckingham canal, which has been running through the city of Chennai for centuries has become dirty and narrowed because of encroachments is a glaring example of the various instances when we take advantage of the resources at our disposal.
· Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution proper structures for environmental decision-making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.”
· As civic citizens, it is our responsibility to contribute to a clean and pollution-free environment if that is what we aspiration. The two wheels of progress are the people and the government; if one wheel goes off course, there will be no development. Why not consider and take advantage of our fundamental duties when we can fight for our fundamental rights? After all, this earth doesn't belong to the powerful homo sapiens any more than it does to the small ant.
Abha and Oorja
The authors are second year students at Rajiv Gandhi National University of law.
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