Madras High Court
National Highways Authority Of India vs Government Of Tamil Nadu on 20 February, 2014
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, P. Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20-2-2014 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR and The Honourable Mr.Justice P. DEVADASS Writ Petition Nos.5934, 33152 of 2013 & 21638 of 2012 and Connected Miscellaneous Petitions W.P.No.5934 of 2013 National Highways Authority of India, rep. By its Project Director, Project Implementation Unit, 1/54-28, Butt Road, St. Thomas Mount, Chennai 600 016. ... Petitioner Vs. 1. Government of Tamil Nadu, rep.by its Chief Secretary to Government, Government of Tamil Nadu, Secretariat, Chenai 600 009. 2. The Secretary to Government, Public Works Department, Government of Tamil Nadu, Secretariat, Chennai 600 009. 3. The Principal Secretary to Government, Highways and Minor Ports Department, Government of Tamil Nadu, Secretariat, Chennai 600 009. 4. The Secretary to Government, Housing and Urban Development, Government of Tamil Nadu, Secretariat, Chennai 600 009. 5. The District Collector, Chennai District, M.Singaravelar Maligai, 62, Rajaji Salai, Chennai 600 001. 6. The Tamil Nadu Slum Clearance Board, rep.by its Managing Director, Kamarajar Salai, Chennai 600 005. 7. The Chief Engineer, Public Works Department, Water Resource Organization, Chennai Region, Chepauk, Chennai 600 005. 8. The Executive Engineer, PWD, WRO, Araniyar Basin Division, Chepauk, Chennai 600 005. 9. The Chennai Port Trust, rep.by its Chairman, Kamarajar Salai, Chennai 600 001. 10. M/s.Chennai Elevated Tollway Ltd. Plot No.14, Avenue 4, Banjara Hills, Hyderabad 500 034. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of writ of Certiorarified mandamus calling for the records of the 7th respondent in Letter No.OT1/AE1/Elevated Expressway/2006, dated 28.1.2013 and to quash the same and consequently direct the respondents 1 to 9 to co-ordinate and take all steps to proceed with the project of "Chennai Port-Maduravoyal Elevated Corridor" in accordance with G.O.Ms.No.63 dated 7.3.2008 and G.O.MS.No.20, dated 4.2.2011 within a time framed manner and to complete it within the planned time and dedicate to the public and until then to be monitored by this Court. W.P.No.33152 of 2013 E. Manokaran ... Petitioner Vs. 1. Union of India, rep.by the Secretary to Government, Ministry of Road Transport and Highways, New Delhi 110 001. 2. Union of India, rep.by its Secretary to Government, Ministry of Shipping, New Delhi 110 001. 3. Ministry of Environment and Forest, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi 110 003. 4. The Government of Tamil Nadu, rep.by its Chief Secretary, Secretariat, Chennai 600 009. 5. The Secretary to Government, Highways and Minor Ports Department, Government of Tamil Nadu, Secretariat, Chennai 600 009. 6. The Secretary to Government, Public Works Department, Government of Tamil Nadu, Chennai. 7. The Chennai Port Trust, rep.by its Chairman, Chennai. 8. National Highways Authority of India (NHAI), rep.by its Chairman, New Delhi. 9. National Highways Authority of India, rep.by its Project Director, Port Connectivity, No.1/54-28, Butt Road, St.Thomas Mount, Chennai 600 016. 10. The Chief Engineer, Public Works Department, Water Resource Organization, Chennai Region, Chennai. 11. Chennai Elevated Tollway Ltd., Plot No.14, Avenue 4, Banjara Hills, Hyderabad 500 034. ... Respondents Prayer: This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of mandamus directing the respondents to proceed with the 'Chennai Port Maduravoyal Elevated Corridor Expressway' project forthwith and complete the said project within a time frame fixed by this Court. W.P.No.21638 of 2012 S. Balaji ... Petitioner Vs. 1. Union of India, rep.by the Secretary to Government, Ministry of Road Transport and Highways, New Delhi 110 001. 2. Union of India, rep.by its Secretary to Government, Ministry of Shipping, New Delhi 110 001. 3. The Government of Tamil Nadu, rep.by its Chief Secretary, Secretariat, Chennai 600 009. 4. The Chennai Port Trust, rep.by its Chairman, Chennai. 5. National Highways Authority of India (NHAI), rep.by its Chairman, New Delhi. 6. National Highways Authority of India, rep.by its Project Director, Port Connectivity, No.1/54-28, Butt Road, St.Thomas Mount, Chennai 600 016. 7. The Secretary to Government, Public Works Department, Government of Tamil Nadu, Secretariat, Chennai. 8. The Secretary to Government, Highways and Minor Ports Department, Government of Tamil Nadu, Secretariat, Chennai 600 009. 9. The Secretary to Government, Housing and Urban Development Department, Government of Tamil Nadu, Secretariat, Chennai. 10. Chennai Metropolitan Development Authority (CMDA), Thalamuthu Natarajan Building, Gandhi-Irwin Road, Egmore, Chennai 8. 11. The Corporation of Chennai, rep.by its Commissioner, Rippon Building, Chennai. 12. The Tamilnadu Slum Clearance Board, rep.by its Chairman, Kamarajar Road, Chennai 5. 13. The Chief Engineer, Public Works Department, Water Resource Organization, Chennai Region, Chennai. 14. The Executive Engineer, PWD WRO, Araniyar Basin Division, Chepauk, Chennai 600 005. 15. Chennai Elevated Tollway Ltd., Plot No.14, Avenue 4, Banjara Hills, Hyderabad 500 034. ... Respondents Prayar: Writ petition filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the 13th respondent in Lr.No.TI/AF1/F-6225/2008, dated 29.3.2012 and quash the same and direct the respondents to co-ordinate and take all steps to proceed with the project of "Chennai Port Maduravoyal Elevated Corridor Expressway" in accordance with G.O.Ms.No.63, dated 7.3.2008 and various other Tamil Nadu Government Orders forthwith and to complete the same within the planned date, without any delay or postponement on any untenable reason, as per the project cleared at the time of inception of the project and if necessary to appoint Monitoring Committee for monitoring the said project. For Petitioner in WP.5934/2013 : Mr.P.Wilson, & RR- 5&6 in WP.21638/2012 Addl.Solicitor General, assisted by Mr.K.Karthik Jagannath For Petitioner in WP.33152/2013 : Mr.S.Kathiravan For Petitioner in WP.21638/2012 : Mr.N.G.R.Prasad for Mr.B.Ullasavelan For RR-1 to 3, 5, 7, 8 in : Mr.AL.Somayaji, AG W.P.5934/2013 & assisted by For RR-3,7 to 9, 13 & 14 in Mr.T.N.Rajagopalan, W.P.21638/2012 Spl. Government Pleader For 6th Respondent in : Mr.M.Perumal W.P.No.5934/2013 For R-9 W.P.5934/2013 & : Mr.G.Masilamani, R-4 in W.P.21638/2012 Addl. Solicitor General assisted by Mr.R.Karthikeyan For R-10 in W.P.5934/2013 : Mr.K.Krishnamurthy For R-1 in W.P.21638/2012 & : Mr.C.Kanagaraj RR-1 to 3 in WP.33152/2013 For R-2 in W.P.21638/2012 : Mr.K.Mohanamurali For R-10 in W.P.21638/2012 : Mr.N.Sampath For R-11 in W.P.21638/2012 : Mr.B.B.Senthilkumar For R-12 in W.P.21638/2012 : Mr.Doraikannan For R-15 in W.P.21638/2012 : Mr.S.Rajasekar COMMON ORDER
N. PAUL VASANTHAKUMAR, J.
The National Highways Authority of India (NHAI), represented by its Project Director, Chennai, has filed W.P.No.5934 of 2013 seeking to quash the order dated 28.1.2013 issued by the Chief Engineer, Public Works Department, Water Resources Organisation, Chennai Region, Chennai-5, and for a consequential direction to the respondents 1 to 9 to co-ordinate and take all steps to proceed with the project "Chennai Port Maduravoil Elevated Corridor" in accordance with G.O.Ms.No.63 Highways Department, dated 7.3.2008 and G.O.Ms.No.20 Highways (Minor Ports) Department, dated 4.2.2011, within a time frame.
2. W.P.No.21638 of 2012 is filed as PIL to quash the order of the Chief Engineer, PWD WRO, Chennai Region, Chennai-5, issued in letter dated 29.3.2012 and direct the respondents to co-ordinate and take all steps to proceed with the project "Chennai Port Maduravoil Elevated Corridor" in accordance with G.O.Ms.No.63 Highways Department, dated 7.3.2008 and G.O.Ms.No.20 Highways (Minor Ports) Department, dated 4.2.2011, within a time frame.
3. W.P.No.33152 of 2013 is also filed as a PIL for issuing a writ of mandamus directing the respondents to proceed with Chennai Port-Maduravoil Elevated Corridor Expressway Project and forthwith complete the said project.
4. As the issue raised in all these writ petitions are common, these writ petitions are clubbed together and posted before us as specially ordered matter and heard by us and by this common order these writ petitions are disposed of.
5. The case of the National Highways Authority of India (NHAI) in the affidavit filed in support of W.P.No.5934 of 2013 are as follows:
(a) NHAI is an authority constituted by the Central Government, functioning under the Ministry of Road Transport and Highways, which is the implementing authority of various road projects, entrusted by the Central Government, throughout India.
(b) The Chennai Port is the third largest port in India in terms of cargo handling, which is located in one periphery of eastern side of Chennai and it is an all-weather port with diverse cargo mix of petroleum products, fertilizers, container cargo and general cargo. Chennai Port having been situated in the heart of Chennai City and due to intense urban development all around the Port, reaching Chennai port by road during day time/peak hours is impossible and arterial roads are occupied by heavy local traffic during day time, causing heavy traffic congestion.
(c) Due to traffic regulations, many of the roads are not allowed for commercial traffic carrying cargo during day time and therefore the vehicles carrying cargo to the port are forced to take circutus route, resulting in additional time and longer distance travel causing congestion on the roads and wastage of fuel, etc. Therefore, the Central Government thought it fit to execute the longest elevated "Chennai Port-Maduravoil Elevated Corridor" involving Rs.1,800 crores with a total length of 19 kms, which was undertaken at the behest of the Government of Tamil Nadu and Chennai Port Trust and so far, more than Rs.500 crores have been invested.
(d) The said project envisages direct access to Chennai Port from the outskirts of Chennai City round the clock, without any traffic regulations, which will help speedy movement of Cargos. The said project will help in agumenting the revenue to Central Government and State Government by way of taxes, besides improving Trade and Commerce. It is not only for the development of Chennai Port, but also to help the local traffic to use the corridor, round the clock, as there are entry and exit ramps into the corridor for the local traffic to reach the High Court, Rajiv Gandhi Government General Hospital, Madras Medical College, Parrys Corner, Central and Egmore Railway stations and major hospitals located enroute the elevated corridor viz., KMC, Apollo Hospital, Government Estate, Island grounds, from Maduravoil/Koyambedu, Annanagar, Amanjikarai, etc. After the completion of the project, the Elevated Express Road will facilitate speedy evacuation of accident victims to the nearby hospitals and there will be reduction in consumption of fuel due to which pollution level will also be controlled.
(e) The alignment of the project is along River Cooum (4.2 kms) and NH-4 (4.80 kms), which contains two entry ramps at Sivananda Salai and College Road and two exit ramps at Kamarajar Salai and Spur Tank Road. The land required for the project is 30.85 H, of which the Government land is 28.75 H and private land is 2.10 H. The total project cost as per the revised rate is Rs.1,815 crores, of which civil work cost comes to Rs.1,345 crores; and Rs.470 crores towards land acquisition, rehabilitation and resettlement are to be borne by the Chennai Port Trust and Government of Tamilnadu. The period for completion of the project is fixed as three years. The amount to be borne by the NHAI was fixed at Rs.499.30 crores.
(f) The project was divided into two sections for implementation purpose, viz., Section-I is from Chennai Port to Koyambedu along the banks of River Cooum (Napier Bridge to Koyambedu) at the length of 14.480 kms; and Section-II is from Koyambedu to Maduravoil at the centre of NH-4 (Poonamallee High Road) at the length of 4.520 kms. The alignment of elevated road starts near Gate No.10 within the Chennai Port premises, passes along Defence Quarters and crosses Kamarajar Salai in between War Memorial and Napier Bridge, enters the back side of the island grounds, reaches Cooum river on the northern side and passes along cooum bank upto Langs Garden Bridge. Thereafter, the alignment moves from southern bank to northern bank upto Binny bridge on Ethiraj Salai. Therefrom the alignment moves from southern bank to northern bank upto Choolaimedu road bridge.
(g) The alignment is designed for a speed of 80 kmph. Due to acute/sharp curves in the courses of river Cooum, the alignment moves from southern bank to northern bank upto Aminjikarai Bridge on Poonamallee High road (near Skywalk), but the design speed is reduced to 65 kmph to avoid location of piers inside the river. Thereafter the alignment passes along northern bank upto Annanagar Bridge (K-3 police station) and shifts towards the southern bank upto Koyambedu and merges with the present Poonamallee High Road near the Tamil Nadu Housing Board land. Thereafter the alignment merges with NH-4 before Koyambedu Grade Separator. As the Metro Rail is crossing, the elevated road is proposed at the ground level from Koyambedu Grade Separator upto the crossing point and thereafter the road is elevated upto Maduravoil junction. The estimated travel time in the proposed Elevated Corridor from Maduravoil to Chennai Port at 60 kmph will be 15 to 20 minutes and in the existing road/route, the travelling time is roughly 1= to 2 hours.
(h) As the alignment of the project passes within cooum river boundary, the Slum Dwellers living in the cooum banks are to be relocated as occupation by the Slum Dwellers have blocked the water movement. The project affected families, occupying along cooum river, are to be rehabilitated and number of persons likely to be evicted is around 6961 + 402 and number of persons shifted as on date of filing the writ petition is 1074. It is the contention of the petitioner that the river cooum is not uniform, which varies from 50.0 metres to 150.0 metres with lot of curves, where there is no slum encroachment, no defined river bank is available. The speed limit fixed for the elevated road is 80 kmph normally and 65 kmph in sharp curves. The river is taking zig-zag course, and hence the alignment was finalised taking into consideration all aspects of geometry, optimum utilisation of river boundary, minimum acquisition of private land, etc.
(i) The Water Resources Department of Government of Tamilnadu at the initial stage requested the NHAI to provide twin column superstructure within the Cooum river area to facilitate the Water Resources Department to have their inspection track between two columns and as a result of adoption of twin columns, one column is located at the extreme bank of Cooum river and the other column falls 8.0 m inside. The request of the State Government to put up entry and exit ramps necessitated location of certain piers inside the river. In some areas there is no defined bank and the river is bounded by private lands/compound walls existing along the extreme edge of the banks and the width of the river is also not uniform.
(j) Before commencement of the work, 'No Objection' for proposed entry ramps was obtained from the Corporation of Chennai on 6.11.2008; drawing of crossing of suburban railway line near Nungambakkam was approved by the Southern Railway on 20.8.2009; drawing for crossing the MRTS was approved by the Southern Railway on 4.2.2010; NOC/Planning clearance was given by CMDA on 19.6.2009; and Coastal Regulation Zone (CRZ) Clearance was given by the Ministry of Environment and Forests, Government of India on 25.2.2011.
(k) At the request of the NHAI, the Government of Tamilnadu constituted a High Level Committee under the Chairmanship of the Chief Secretary of the Government with other officials through G.O.Ms.No.216 dated 16.9.2008 to monitor the progress of the project. As per the said Government Order, the Committee shall meet once in three months and expedite the land acquisition, rehabilitation and resettlement, etc. The High Level Committee met on 21.11.2008 and took several decisions. Similarly on 23.3.2009 second meeting was held and it was resolved that all the Departments/Agencies shall work in tandem to ensure smooth implementation of the project. The third meeting was held on 22.6.2009. In the 4th meeting held on 29.10.2009, the NHAI was instructed to follow the application made by the Chennai Port Trust for Coastal Regulatory Zone Clearance with Government of India, expeditiously. A decision was taken to hand over the land to NHAI i.e, 50% by 17.11.2009 and the balance by 17.5.2010. The 5th meeting of the High Level Committee was held on 30.11.2010 and a Sub-Committee under the Chairmanship of the Secretary to Government, Highways and Minor Ports Department was constituted to implement the decisions taken by the High Level Committee and for follow up activities which also met on 3.8.2009, 11.10.2010, 30.6.2010 and 31.3.2011.
(l) According to the NHAI, after change of the Political head of the Government of Tamilnadu in May, 2011, the various departments of the State Government and the respondents 1 to 8 have not extended co-operation with respect to land acquisition, rehabilitation and resettlement to the affected families and in completing the project. No High Level Committee meeting or Sub-Committee meeting was held. The Secretary, Government of India, Ministry of Road Transport and Highways, in his letter dated 9.8.2011 requested the Chief Secretary to the Government of Tamil Nadu to expedite the land acquisition, rehabilitation and resettlement and also to convene the High Level Committee meeting and extend full co-operation. However, no action was taken. The alignment of the project along the Cooum river was presented before the Government of Tamil Nadu on 18.4.2007 in the presence of the officials of NHAI, Chennai Port Trust, PWD and Highways Department, CMDA, Chennai Corporation, Tamilnadu Slum Clearance Board, Chennai Metro Water and Sewerage Board and other officials.
(m) The request of the Chennai Port Trust, made on behalf of the NHAI was accepted and the Government of Tamil Nadu issued G.O.Ms.No.199 PWD dated 22.6.2007 for using one side of the Cooum river bank as per the site conditions for the construction of Elevated Expressway from Chennai Port Trust to Maduravoyal, subject to conditions that Coastal Regulatory Zone Clearance is to be obtained for the project by the Port Trust; a clear width of 8.0m in between the pillars has to be provided for provision of at-grade road; finalised project report and design have to be vetted through all State Departments; and to take protective measures like retaining wall and slope protection walls of Cooum river in the stretch have to be borne by NHAI to accommodate proposed maximum design discharge of 25,000 cusecs. According to the petitioner, a Committee consisting of the concerned agencies was constituted with Chief Engineer, PWD, WRO, Chennai Region as the Chairman to take up joint inspection of the relevant stretches of Cooum river among other things. The Chief Engineer, PWD being the Chairman of the Committee was fully aware of the alignment of the project along with the Cooum river and even before issuance of the Government order, the alignment of the project was sent to the Chief Engineer and Executive Engineer of PWD as alignment plan was sent with consultant letter dated 16.4.2007 and 14.6.2007.
(n) The plan was also reviewed and due to the crossing of Metro Rail depot, a slight change was made and the alignment was proposed to take at the Centre of Poonamallee High Road from Koyambedu to Maduravoil section, which was also accorded by G.O.Ms.No.63 High Ways Department dated 7.3.2008. Before issuance of the said Government Order, the meeting of the Chief Secretary level with all officials was held and the Government ordered to extent full support to NHAI for the project and earlier alignment approved in G.O.Ms.No.199 dated 22.6.2007 was amended by G.O.Ms.No.63 dated 7.3.2008. It was agreed that the Government of Tamil Nadu will meet 50% of the cost of the land acquisition, rehabilitation and resettlement on condition that the Chennai Port Trust would initially pay the entire cost of land acquisition, rehabilitation and resettlement and get 50% of the cost reimbursed from the Government of Tamil nadu. The PWD, District Collectors of Chennai and Tiruvallur and the Slum Clearance Board have to enumerate the project affected families, structures, etc., for rehabilitation and resettlement purposes for expeditious implementation of the project by resettling the inhibitants. The Chennai Port Trust by letter dated 5.1.2008 conveyed its willingness to bear 50% cost for pre-construction activities.
(o) The Government of India, Department of Road Transport and Highways accorded approval for implementation of the project on Build Operate Transfer (Toll) basis under Phase VII of the National Highways Development Project, out of which 40% of project cost will be borne by the Central Government, which roughly comes to Rs.538 crores. NHAI invited bids and after evaluation, the proposal of M/s.Soma Enterprise Ltd., Hyderabad with positive grant of Rs.499.30 crores was accepted by NHAI. The Cabinet Committee on Economic Affairs also accorded approval for the project on 26.12.2008. Letter of acceptance was also issued to the said agency on 6.1.2009 and thereafter the Prime Minister of India laid the foundation stone for the project on 8.1.2009 in the presence of the Chief Minister of Tamil Nadu, Union Minister for Shipping, Road Transport and Highways, etc.
(p) Concession Agreement with M/s.Chennai Elevated Tollway Ltd., was also made on 18.5.2009 with a concession period of 15 years, including the construction period of three years. The appointed date was fixed as 14.9.2010 and the scheduled date of construction of the project was fixed as 13.9.2013. Prior to the commencement of the work in Section-I (along river Cooum), Proejct Director, NHAI in his letter dated 16.10.2009 requested the Chief Engineer, PWD to accord Enter Upon Permission for the stretch from Napier Bridge to Koyambedu along Cooum river for the project, duly enclosing the copy of the alignment drawings, right of way details. Having satisfied with the project alignment along the Cooum river, the Executive Engineer, Water Resources Department, Araniyar Basin Division, Chennai, accorded permission on 12.11.2009 and on 16.11.2009 the said authority requested to contact the Assistant Executive Engineer, Water Resources Department, Cooum Sub Division, Chennai, to take over the stretch from Ethiraj College Road to Choolaimedu Causeway Bridge from Ch.5400m to Ch.9600m, except from Ch.8200m to 9000m.
(q) The Concessionaire commenced the work in Section-II at Koyambedu on 14.9.2010 and section-I work could not be commenced because of non-receipt of Coastal Regulatory Zone Clearance from the Ministry of Environment & Forest for the stretch from Nappier Bridge to Chetpet Bridge and after getting CRZ clearance on 25.2.2011, Section-I work along the Cooum river was commenced and work to the value of Rs.500 crore was completed upto 29.3.2012.
(r) At this stage, on 1.2.2012 the Chief Engineer, PWD issued stop work order in Cooum River until further orders, for which a reply was given by the Ministry of Road Transport, Highways to the Chief Secretary to the Government of Tamil Nadu on 7.3.2012 and requested to convene a high level Committee Meeting to sort out the issues on priority basis in the larger interest of the State and the nation. However, no High Level Committee Meeting was convened and the Chief Engineer again passed an order on 29.3.2012 directing to seek approval for alignment of Cooum River and until such time, all the construction activities in Cooum river should be stopped and non-compliance of the notice will be viewed seriously and legal action will be taken. It is further ordered that the departmental engineers have been directed to seize the machineries etc., which would be found in the side of Cooum river. The said order dated 29.3.2012 was challenged in W.P.No.21638 of 2012 and the matter was entertained by this Court with a direction to the State Government and all the respondents, to file their counter affidavits.
(s) During pendency of W.P.No.21638 of 2012, the Project Director, NHAI, by his letter dated 2.4.2012 gave a reply and requested to allow the Concessionaire to carry out the work as there is no violation in the condition stipulated and also explained the necessity for early completion of the project and also requested to convene the High Level Committee meeting. As there was no response, the Secretary, Road Transport Department, along with Finance Member, NHAI, came to Chennai on 25.4.2012 for a discussion with the Chief Secretary and during the said discussion it was suggested by the Chief Secretary that NHAI may explain all the facts to PWD along with technical justification and the alignments. Accordingly Independent Consultant Study Report regarding alignment etc., was obtained regarding free flow along river Cooum for ensuring maximum discharge of 25,000 cusecs and the said report was submitted on 16.7.2012 and requested to withdraw the stop work order to resume the work.
(t) No action being taken, the issue was again taken up with the highest level viz., the Prime Minister of India. Consequently, the Advisor to the Prime Minister came to Chennai and met the Chief Secretary on 9.11.2012 and requested to convene a meeting with Technical Experts of NHAI and Officials of the Government of Tamilnadu and after about 6 months the Chief Engineer, PWD passed an order on 28.1.2013 directing the Chief General Manager (Technical), Regional Office, NHAI, to obtain necessary permission from the Government of Tamilnadu after fulfilling corrective measures pointed out and to get revised clearance of CRZ. The said order is challenged by the NHAI in W.P.No.5934 of 2013 on various grounds.
(u) The construction activities of the Mega project being stalled, W.P.No.33152 of 2013 was filed as a PIL praying for issuing directions to complete the said project.
(v) The contention of the NHAI in W.P.No.5934 of 2013 is that the orders passed by the PWD dated 29.3.2012 and further order dated 28.1.2013 are arbitrary, without noticing the approval of the Project by issuing G.O.Ms.No.199 dated 22.6.2007, which was modified through G.O.Ms.No.63, dated 7.3.2008 and G.O.Ms.No.20 dated 1.4.2011, by the Government of Tamilnadu. As the apprehensions expressed by the Chief Engineer were clarified and all the departments having granted NOC/permission for approval, the respondents 1 to 8 are not justified in putting obstacles to the project in spite of getting clearance from CRZ. By stopping the huge infrastructural project and not co-operating for completion of the same, public interest is affected as more than Rs.500 crores have already been spent after getting proper approval and there will be cost escalation. It is further contended that in G.O.Ms.No.63 dated 7.3.2008, the Government assured full support for implementation of the project and due to stoppage of work, the 10th respondent is claiming compensation to the tune of Rs.668 crores.
6. The 7th respondent has filed counter affidavit in the writ petition filed by NHAI (W.P.No.5934 of 2013) mainly contending as follows:
(i) In G.O.Ms.No.199 dated 22.6.2007 approval was accorded in principle for using one side of the Cooum river bank on certain terms and conditions for the construction of the Elevated Expressway from Chennai Port to Maduravoil, subject to observations by the Committee and the site was handed over for a stretch of 4.550 kms length to the Project Director for using the Cooum river bank from Chainage of 5.400 kms (C-in-C road to Ethiraj road) to LS 9.600 kms (Choolaimedu bridge) and from LS 0.450 km (Napier Bridge) to LS 1.600 kms (Periyar Bridge) on 30.11.2009 by duly evicting the encroachment and while executing the work, it has been noticed by the Water Resources Department that from Ethiraj salai bridge to Chetpet bridge, NHAI erected 32 pillars right in the river bed near Spur Tank Road and College Road instead of constructing the pillars on the river bank.
(ii) It was also found that NHAI unauthorisedly encroached upon the river bed by dumping debris, earth and construction materials near the Spur Tank Road, thereby obstructing free flow of storm water. The cooum river runs to 17 kms in Chennai City from Padikupam cause-way to Napier bridge and acts as a major flood carrier during heavy monsoon rain.
(iii) The total distance of cooum river is 72 kms, which originates from Kesavaram Anaicut in Perambakkam Village, Tiruvallur District. The flood carrying capacity of the river is 19892 cusecs at Spur Tank Road in the LS 7300m and 8100m with a bottom width of 52m and top width of 70m and effective depth of 3.80m and overall cross section area of 231.80m2. Due to the encroachment in the river bed by NHAI, the area of cross section gets reduced to 36m2 by dumping the debris. The pillars in the river course will prevent the free flow of water and will cause floods during the heavy monsoon by overflow of water in nearby residential areas.
(iv) The maximum flood discharged during rainy season in Cooum river which has been designed to carry the flood flow of 4,000 cusecs and only on public interest and to prevent possible inundation during rainy season of residential areas, the stop work notice was issued as there is violation of the terms and conditions mentioned in G.O.Ms.No.199, dated 22.6.2007 as permission was granted only to use the Cooum river bank and not the river itself.
(v) Further the clearance from the Tamilnadu Pollution Control Board regarding water, air, solid waste and noise pollution are not produced by NHAI and the Coastal Regulatory Zone Clearance was obtained for using the river banks and the alignments having been changed, revised clearance is required to be obtained and finalised project report and design should be vetted through all State Departments, which has not been obtained and the construction activities having been carried on in violation of the terms and conditions mentioned in G.O.Ms.No.199, stop work order was issued and there is no illegality in the said order.
7. An additional counter affidavit was filed contending that the NHAI has to remove the pillars erected inside the river and restore the river before restarting the work. The Concessionaire has constructed the pile caps above the bed level instead of below the bed level and no alignment plan was approved by the PWD and with regard to the removal of encroachments all steps like enumeration and taking photographs of encroached families are over and eviction of encroachment will be carried out after getting necessary alternate allotments through the Tamil Nadu Slum Clearance Board.
8. In W.P.No.21638 of 2012 a counter affidavit is filed adopting the counter affidavit filed in W.P.No.5934 of 2013.
9. Mr.P.Wilson, learned Additional Solicitor General appearing for NHAI submitted that Chennai Port Trust is an artificial ancient Port established 120 years back and it is an international hub port in Indian Sub-continent, handling various cargos and it is an all-weather port. It stretches nearly for about 6 kms along the coast of Chennai, Bay of Bengal. Maritime traffic started in the year 1639 and the size of the port is 407.59 H with 26 berths, out of which two berths are allotted to Indian Navy as on today. For the movement of cargo, free traffic to Chennai Port Trust is very much essential and to reach the Chennai Port, vehicles have to travel through GST, GWT and GNT roads and there are traffic restrictions and the container trucks and cargo carriers are not allowed to enter into the city during day time, i.e., upto 8.00 p.m. Therefore it was decided to construct a Chennai bye-pass road, connecting GST, GWT, GNT roads. Totally 11,901 vehicles (29998 PCUs) enters and exits the Chennai Port per day through four gates. 5,398 trucks pass through per day and at present all the vehicles are entering and exiting through Gate No.1. Considering the necessity of reaching the Port easily and also to avoid traffic congestion in the city, a mega project was mooted at the instance of the State Government and Central Government. NHAI initiated further steps and initially it was felt that the pillars can be laid on the banks of the Cooum river. However, as the Cooum river flows in a zig-zag manner, and to maintain the speed limit of 60 to 80 kmph, it was decided to change the alignment to the minimum by putting 32 pillars inside the Cooum river at different locations, without obstructing the free flow of water to ensure 25,000 cusecs of storm water flow during peak monsoon season. G.O.Ms.No.63 dated 7.3.2008 was issued accepting the change of alignment and Coastal Regulation Zone clearance was also obtained and thereafter only the work commenced. Therefore the obstruction/stop work notice was issued by the PWD by raising contention that the alignment has been changed, which will obstruct the free flow of water in Cooum river, has no basis and only on the ground that the project was initiated and commenced by the then State Government, present State Government is putting obstacle and preventing the project to go on and this Court may set aside the orders with further direction to the respondents to co-operate for the completion of the entire project for the benefit of the public. The learned Additional Solicitor General also cited several decisions in support of his contentions.
10. Mr.N.G.R.Prasad, learned counsel appearing for the petitioner in W.P.No.21638 of 2012 supported the arguments of the learned Additional Solicitor General and contended that only for political reasons the project is put on hold and the project having commenced with the approval and consent of all viz., the Central Government, State Government, NHAI and PWD, the stop work order issued by the Chief Engineer, PWD is a mala fide action and the public interest is put on peril and therefore the orders passed by the Chief Engineer are liable to be set aside and positive direction is to be issued to complete the project by extending full co-operation, within a short span of time to ease the traffic congestion in the city of Chennai and for reaching the vehicles and cargos to the Chennai Port Trust at all times, without any time restriction.
11. Mr.G.Masilamani, learned Additional Solicitor General, appearing for Chennai Port Trust submitted that the "Chennai Port Trust Maduravoil Elevated Expressway" is of great public importance and the delay and denial of the project will cause irreparable loss of health to millions of people, as there is high air pollution in the entire stretch of 19 kms from Chennai Port Trust to Maduravoil, which runs in thickly populated residential areas in the middle potion of the City. The traffic congestion and hold-up expose the adult and school going children longer period of exposure to carbon monoxide, which is very injurious to health. Hence Article 21 viz, right to health is violated and millions of man-hours have been lost due to slow movement of vehicles. Millions of rupees worth fuel is wasted due to idling and slow movement of vehicles in the existing roads. The large facility in Chennai Port goes waste due to transportation bottleneck and the import and export business of Port Trust are adversely affected. Reduction in business is causing loss of jobs to thousands. The only objection/apprehension of the State Government is over-flow of flood water from Cooum river during the extraordinary flood situation and the objection is mainly about the construction of piers, pier cap, piles in the water course of the Cooum river. The size and shape of the piers, pier caps and pillars being measurable, the obstruction caused could easily be calculated and remedial measures can be done to set-off the consequences of obstructions. The Cooum river is a broad river, which can accommodate the piers and piles by removing unauthorised occupants/encroachers and dumping of building rubbish inside the river or on the river bank. The said measures are contemplated in the project. By putting embargo on the project, the State Government is opposing the concept of sustainable development. There is no obstruction of free flow of water in spite of 11 bridges already existing in the Cooum river. Learned Additional Solicitor General submitted that objections were raised when Panama Canal was constructed in 1869 connecting Atlantic ocean and Pacific Ocean; when Suez Canal was built in the year 1914 connecting Mediterranean Sea and Red Sea; when Konkan Railway was constructed connecting Mumbai and Bangalore through Goa; when Mettur Dam was constructed and opened in the year 1934; when ECR road was laid connecting Chennai and Pondicherry; and when Nuclear Power Plant was commissioned at Koodankulam, and all those objections were overruled by Courts, considering the overall public interest with a view to ensure sustainable development.
12. Mr.N.Vijay Narayan, learned Senior Counsel appearing for the 10th respondent, who is the Sub-Contractor, supported the writ petitioners by contending that as per the detailed approved drawings, the work was carried out and till date, a sum of Rs.924 crores have been spent. The Contractor having invested huge money, which could be collected through 12 years toll collections, his client is put into serious difficulty due to the delay in completion of the project and his client has raised loan from the banks for carrying out the work hitherto, which became a non-performing asset as on today. Hence the impugned orders may be set aside with a direction to complete the project without any obstruction from any quarters.
13. Mr.AL.Somayaji, learned Advocate General, appearing for the Government of Tamilnadu during the course of his argument submitted that the construction of Elevated Expressway from Chennai Port to Maduravoil was formulated during the year 2004-2005 taking into account the sharp increase in container volume being handled by the Chennai Port and the limitations of the existing capacity and in the year 2006 due to introduction of Metro Rail Project in Chennai and to avoid conflict between Metro Rail and Elevated Expressway, it was resolved to prefer the Elevated Expressway be aligned along Cooum river. The Chairman of the Chennai Port Trust requested the Principal Secretary to the Government of Tamilnadu, Highways and Minor Ports Department to affirm the availability and use of right of way along Cooum river for the construction of the Elevated Expressway. On the basis of the request of the Chairman of Chennai Port Trust made on behalf of NHAI, approval was granted in principle for the use of Cooum river banks for the construction of Expressway. A joint inspection was made by the committee of various agencies, which inspected various locations along the Cooum banks and bridges across the Cooum river with respect to specific issues from Maduravoil to Napier bridge. As per the joint inspection Committee report, CRZ clearance is to be obtained for the project. The space in between the pillars, which is said to be 8.00m should be converted into the road of adequate width and the protective measures like retaining wall and slope protection works of Cooum river, etc. have to be borne by the NHAI to accommodate the proposed maximum discharge of 25,000 cusecs of storm water and G.O.Ms.No.199 PWD, dated 22.6.2007 was issued specifically authorising to use one side of the Cooum river bed with further conditions. The CMDA granted NOC with conditions on 19.6.2009; Entry permission was granted by the Chief Engineer on 12.11.2009; and the site was handed over on 20.11.2009. On 25.2.2011 CRZ clearance was issued by the Ministry of Environment and Forests, subject to several conditions and the said conditions having not been complied with, stop work notice was issued on 1.2.2012 as it was noticed that piles were not driven in the banks of the river, but within Cooum river, and hence the NHAI was directed to get approval of the modified alignment in the Cooum river. The approval having been granted with certain conditions as per G.O.Ms.No.199, dated 22.6.2007, the same is bound to be complied with and reply dated 28.1.2013 was issued stating that a clearance is required to be obtained for constructing the piers in the cooum river as CRZ clearance was given for locating the piers only on the river banks and necessary retaining walls should be constructed for a height of 3 to 4 mtrs in the extended portion from the outer column. The learned Advocate General further submitted that even as per the original alignment, 35 pillars were allowed inside the Cooum river and putting additional 32 pillars inside the Cooum river is not permissible. The learned Advocate General also submitted that neither the State Government nor the Chief Engineer, PWD passed any order prohibiting laying of Expressway and the only objection is, NHAI has no right to erect 32 more pillars inside the Cooum river. The learned Advocate General also relied on the second master plan issued by the CMDA and the decisions of the Bomaby High Court reported in 2003 (5) Bombay CR 95 (Ameeta Shah, Colaba v. State of Maharashtra); unreported judgment of the Karnataka High Court in W.P.11630 of 2012 dated 4.6.2012; 2006 WLR 560 (Dr.M.G.R.Educational and Research Institute v. The Collector of Thiruvallur District); and AIR 2005 Madras 311 (L.Krishnan v. State of Tamil Nadu) in support of his contentions.
14. In reply to the arguments of the learned Advocate General, Mr.P.Wilson, learned Additional Solicitor General, heavily relying on the reply affidavit filed by NHAI dated 5.2.2014 submitted that the alignment submitted and approved in principle has not been changed and the site was also handed over on 30.11.2009 and the PWD in its letter dated 12.11.2009 permitted the NHAI stating about the approval of alignment and handing over of the site for taking up the project immediately. As there is no deviation from the alignment submitted and accepted by NHAI from the year 2007, the NHAI undertakes that in future, the same would be strictly adhered to and there would be no deviation at all. It is also pointed out by the learned Additional Solicitor General that on 18.9.2013 the PWD requested to remove the blockades at certain locations in the Cooum river and after having joint inspection with the PWD, the Concessionaire had removed the blockades, which was also intimated by the Project Manager on 11.11.2013 and whenever the blockade is pointed out in future also, the same would be removed forthwith. The learned Additional Solicitor General further submitted that even during the time of construction, the NHAI will take all efforts to see that the free flow of water is not obstructed and once the construction is completed, maintaining of 25,000 cusecs will be ensured by the Concessionaire and the same was already undertaken by the Secretary, Government of India through his letter dated 16.7.2012, addressed to the Chief Secretary and the same is reiterated now and therefore the apprehension expressed by the PWD is unwarranted. He also added that putting 32 pillars in the Cooum river is inevitable to complete the mega project to guarantee 65 to 80 km speed per hour. The learned Additional Solicitor General further reiterated that the NHAI guarantees that there will not be any sort of blockade and free flow of water in Cooum river at all times will be ensured, either during construction or after construction of the Elevated Expressway.
15. We have considered the rival submissions of the learned Additional Solicitor Generals, learned Counsels as well as the learned Advocate General for the contesting respondents.
16. From the narration of the facts as well as study of the Project, no one can deny that the Elevated Expressway from Chennai Port to Maduravoil is an imminent necessity and the decision was mooted during 2004-2005. The need for decongestion of traffic and to create alternate connectivity, the Elevated Expressway is required in order to mitigate the traffic congestion and for the movement of containers to the Port. Therefore, a decision to have an Elevated Expressway from Tambaram to Chennai Port and Elevated Expressway from Maduravoil to Chennai Port at the distance of 19 kms was conceived and accepted as a viable project by the Central Government, State Government at the instance of the Chennai Port Trust in consultation with NHAI, which is an expert body.
17. After due deliberations, the Government of Tamilnadu agreed for the construction of the Elevated Expressway from Chennai Port to Maduravoil using the Cooum river bank, by NHAI. The Chief Engineer, PWD also discussed with the Chairman of the Committee on the proposed plan with the consultant on 24.4.2007. The conditions imposed in the Government Order issued in G.O.Ms.No.199 PWD, dated 22.6.2007 are mainly to obtain Coastal Regulation Zone clearance for the project by the Port Trust; the enumeration and rehabilitation of Slum Dwellers at the Cooum river bank has to be carried out as part of the project in consultation with the Tamilnadu Slum Clearance Board for rehabilitation in Government lands or by acquiring private land, if suitable Government lands are not available; a clear width of 8m in between the pillars have to be provided for provision of at-grade road; the project report be vetted through all the departments; and that, the protective measures like retaining wall and slope protection wall of cooum river in the stretch has to be borne by the NHAI to accommodate the proposed maximum design discharge of 25,000 cusecs.
18. Another Government Order was issued in G.O.Ms.No.63 Highways Department, dated 7.3.2008 and in the said GO it is stated that original proposal was to construct the Elevated Expressway along the banks of Cooum river and the Government also granted in principle, approval to the NHAI for using one side of the cooum river as per the site conditions for construction, and the NHAI has now proposed to change the alignment in such a way that the Elevated Expressway would pass over the existing Poonamallee High Road from Maduravoil to Koyambedu and then go along Cooum river. The said request was examined and accepted by stating as follows:
"I. G.O.Ms.No.199, Public Works Department, dated 22.6.2007 be amended suitably to permit the revised alignment of Elevated Expressway and orders be issued separately by the Public Works Department.
II. The District Collectors of Chennai and Thiruvallur will acquire the private land required for the project including the lands which may be needed for R&R purposes, based on the request from Tamil Nadu Slum Clearance Board through the process of negotiation or by acquisition after getting land plan schedule from the NHAI.
III. The Government of Tamil Nadu will meet 50% of cost of LA and R&R subject to condition that Chennai Port Trust would initially pay the entire cost of LA and R&R and get 50% of the cost reimbursed from Government of Tamil Nadu and that 50% of R&R cost being the State's share would be availed from JNNURN.
IV. The District Collectors of Chennai and Thiruvallur with the assistance of PWD and Tamil Nadu Slum Clearance Board will carry out enumeration and documentation of the project affected families, (PAF) structures, etc. for R&R purposes and complete the same expeditiously. The TNSCB should simultaneously prepare a plan for the rehabilitation and resettlements of the project affected families so that the project implementation is not hindered in any manner.
V. The TNSCB will be the nodal agency from the State Government to co-ordinate with NHAI for completing the R&R work with a definite time frame.
VI. Tamil Nadu Pollution Control Board will consider and issue clearance under the air and water acts on receipt of application from The Project Director (Port Connectivity), NHAI, Chennai or agency concerned.
VII. The CMWSS Board and TNEB will take immediate action for shifting of water lines and electrical utilities on receipt of proposals from National Highways Authority of India subject to usual conditions.
VIII. The CMDA will issue NOC for this project after taking into account the alignment of Metrol Rail Project.
IX. The Project Director (Port Connectivity), NHAI, Chennai will co-ordinate the various activities including providing details of alignment at various locations to the concerned departments or agencies."
(Emphasis Supplied)
19. Another GO was issued in G.O.Ms.No.216 Highways and Minor Ports Department, dated 16.9.2009 regarding land acquisition, rehabilitation and resettlement and shifting of utilities, and a High Level Committee was constituted under the Chairmanship of the Chief Secretary to monitor/review of progress of land acquisition, rehabilitation, etc. The Commissioner, Corporation of Chennai by order dated 6.11.2009 issued no objection for construction of entry and exit ramps in four locations. The CMDA, by order dated 19.6.2009 granted its clearance as the proposal is not conflicting with the second Master Plan of the CMDA. The approval of MOU and State Support Agreement was also agreed in the Minutes of the Meeting held on 21.11.2009. The Ministry of Shipping, Road Transport and Highways Department, Government of India informed the decision of the Cabinet Committee for Economic Affairs and the approval granted on 26.12.2009, reads as follows:
"Development of the 18.3 km four lane elevated road from Chennai Port (Gate No.10) to Maduravoyal (NH-4) in the State of Tamil Nadu under NHDP Phase-VII at an estimated total cost of Rs.1530 crores, including cost of Land Acquisition and R&R, as per implementation methodology approved by CCEA on 5.6.2008 and requirement of VGF not exceeding 40% of the project cost excluding cost of LA and R&R. The cost of Land Acquisition and R&R amounting to Rs.310 crore will be borne by the Government of Tamil Nadu and Chennai Port trust on 50:50 cost sharing."
20. A Concession Agreement was executed between NHAI and Chennai Elevated Tollways Limited on 18.5.2009. G.O.Ms.No.133 Highways Department, dated 15.7.2009 was issued to constitute the Empowering Committee to monitor the implementation of the project. The NHAI requested the Chief Engineer on 16.9.2011 to hand over the land along Cooum river for commencement of construction along with the drawings, showing the alignment of the proposed elevated road and the ROW width required as per the Concession Agreement. The Executive Engineer, WRD, Araniyur Basin Division, Chepauk, by letter dated 12.11.2009 granted Enter Upon Permission from Napier bridge to Koyambedu along Cooum river with approved alignment of Elevated Expressway, followed with another letter dated 16.11.2009 and requested to take over the site immediately and actual handing over was made on 30.11.2009.
21. The Ministry of Environment and Forests, Government of India, on 25.2.2011 accorded CRZ clearance for the construction of elevated road from Chennai Port to Maduravoil. In paragraph 2 of the said clearance order it is stated as follows:
"..... the proposal involves construction of port link road from Chennai Port to Koyambedu along the banks of river Cooum and at the centre of the existing road from Koyambedu to Maduravoyal on Chennai bypass. The project proponent stated that the proposed road is not a National Highway/State Highway or Expressway; it is a link road connecting the Chennai Port with NH-4. Project was included under NHDP VII and NHAI will be the implementing agency for the development, maintenance and management of Port connectivity. The total length of the link road is 19 km. (Elevated Length 17.5 km and at Grade Length 1.5 km). The project corridor starts at Gate No.10 of Chennai Port and ends before Maduravoyal Interchange at km 13+216 of NH-4. Entire alignment is envisaged as an elevated road. The total length of the corridor is 17.543 km. The project road is divided into two section: Section I: Chennai Port to Koyambedu Ch: 0+000 to Ch: 14+227, along banks of river Cooum. Total length 14.227 km including the ramps at Koyambedu. Section II: Koyambedu to Maduravoyal Widening of NH4 from km 9/460 to 9/900 and elevated road along NH4 from km 14+227 to km 17+543 (km 9+900 to km 13+216 of NH4) Total length 3.316 km."
(Emphasis Supplied) The main conditions imposed in the said CRZ clearance are that there shall not be any hindrance to free flow of water in cooum river at any point of time; and the State PWD may be associated for incorporating features such as raising the height of the bund and desilting the river Cooum; and there shall be no disposal of solid and liquid wastes into the water body. In the event of any change in the project profile, a fresh reference shall be made to the Ministry of Environment and Forests and the Ministry reserves its right to revoke the clearance, if the conditions are not followed.
22. Thus, it is evident that the CRZ clearance was already obtained for the project, wherein it is stated that the project can go along the banks of river Cooum. The apprehension expressed by the PWD that by virtue of putting up of 32 pillars along the cooum river, there may be obstruction in the free flow of water was clarified by stating that efflux likely to be caused due to the presence of piers of Elevated road will be far less than the efflux caused by 11 bridges already constructed across cooum river by various state Departments. It was assured as follows:
"As the Water Resources Department (WRD) made it mandatory that NHAI has to ensure a discharge capacity of 25000 cusecs of water in Cooum river, suitable provision has been incorporated in the Concession Agreement towards this. On completion of the Elevated Road project, it will be ensured that the above discharge capacity will be created by removing the encroachments and dredging the banks and bottom of the river, which is mostly used at present for dumping garbage and construction waste all along. The temporary approaches formed within the river boundary for the movement of construction vehicles will also be removed to ensure free flow of discharge."
23. The alignment to put additional 32 pillars in the cooum river other than the 35 pillars originally decided arose due to course of the Cooum river at several locations and to maintain the speed of 80 kmph or at least at the speed of 65 kmph at some locations. Thus, construction of additional pillars became inevitable to complete the project, which will be useful to the travelling public and free movement of vehicles/containers in the Expressway. The Concession Agreement also compelled the Concessionaire to ensure a discharge capacity of 25,000 cusecs of water.
24. In the CRZ clearance order it is stated that in the event of any change in the project profile, a fresh reference shall be made to the MOEF. The permission granted by the Government in G.O.Ms.No.199, dated 22.6.2007 itself it is stated that approval is granted for using one side of the Cooum river bank as per the site condition. The words "river bank" was changed as "go along Cooum river". The manner in which the Cooum river flows is not uniform all along i.e, in zig-zag course, is not disputed. Granting permission to use one side of the river bank as per site condition denotes use of other side of the river bank in some places and while crossing the river additional piers must be erected inside the river, which cannot be termed as change in the alignment. It is also relevant to note at this juncture that across the Cooum river within Chennai City itself 11 bridges were constructed long ago, viz.,
1. Napier bridge,
2. Periyar bridge,
3. Col.Laws bridge,
4. St.Andrew bridge,
5. Harris road bridge,
6. Commander-in-Chief road bridge,
7. College Road bridge,
8. Munroe bridge,
9. Chetpet Railway bridge,
10. Aminjikarai bridge, and
11. Annanagar bridge.
The existence of the said 11 bridges across Cooum river is not causing obstruction of free flow of water and only due to non-silting before monsoon season the flood and inundation had happened. Further, the State is not objecting for putting up of 35 pillars and is objecting erection of 32 additional pillars. The Ministry of Road Transport and Highways, Government of India on 16.7.2012 specifically stated that the existing capacity of the Cooum river shall be maintained by removing of surplus construction material from the flow area and from river banks.
25. In this case, assurance is given by the NHAI in the reply affidavit filed before this Court on 5.2.2014, undertaking not to permit any sort of blockade of free flow of water at all times, i.e., during construction of the Elevated Express Corridor and after completion.
26. Insofar as the request of the respondents viz., PWD to get fresh CRZ clearance is concerned, the learned counsel appearing for the Ministry of Environment and Forests has produced the present stand by written instruction dated 11.2.2014, wherein it is stated that the CRZ clearance for the proposed construction of elevated road from Chennai Port to Maduravoil was granted after the project has been examined and recommended by the Expert Appraisal Committee. As already stated, 32 pillars which are to be put up in the Cooum river is for maintaining speed of the vehicles passing through the Express Corridor and the same was cleared by CRZ by order dated 25.2.2011. Hence, no fresh clearance from the CRZ is required to be obtained as there is no change of alignment. Thus, the contention raised by the contesting respondents to that effect is rejected.
27. Similar issue regarding putting up of piers/pillars inside the Buckingham Canal at the time of construction of MRTS was challenged and the said challenge was rejected by a Division Bench of this Court in the decision reported in (2007) 1 MLJ 353 (Exnora International v. Government of Tamil Nadu). The contention raised in that writ petition at that time was that the Buckingham Canal is a main source of storm water disposal for Triplicane, Royapettah and Mylapore areas. In August, 1996 during torrential rain, there were water flow into the houses in Mylapore and Triplicane areas due to the construction of railway station/lines by MRTS in the middle of the Buckingham Canal bed and in some places in the middle of the Canal itself, due to which the width of the water way was reduced to 515 feet, which resulted in blocking the free flow of water, which caused submerging nearby residential areas. It was contended by the Government of Tamil Nadu, Public Works Department that the said project was formulated by the Central Government in consultation with the State Government and it was agreed by the State Government to spare the lands on the Canal banks and other areas and CMDA granted approval on condition that the water ways should not be affected and a minimum width of 10 feet must be made available for the Canal and the scheme would be most beneficial to all the residents and the encroachers, who put up huts along side of the banks will be evicted and rehabilitated at Pallikkaranai. The said stand was accepted by this Court and in the said judgment it is pointed out that the city of Madras has four water ways running through it viz., Cooum River, Adyar River, Otteri Nallah and Buckingham Canal, which were initially the channels, through which rain water was flowing to the sea. Over the years, they were turned into open sewerage drains. The importance of the project was approved and implemented by the Central Government as well as the State Government. The objections regarding construction of the pillars/piers inside the canal was rejected as it is essential to remove the traffic congestion and for infrastructural development to the general public on condition that there shall not be water stagnation in Buckingham canal at any place and the railways as well as the State Government shall scrupulously maintain the Canal to ensure free flow of water by removing the sludge and silt periodically without fail to avoid inundation during monsoon.
28. The decision to construct an Elevated Expressway is a policy decision taken on public interest, after studying the feasibility report at the instance of the Government of India, Ministry of Shipping, Road Transport and Highways in consultation with NHAI as well as the Government of Tamilnadu and the same was ordered to be implemented by the Government of Tamilnadu in G.O.Ms.No.199 PWD, dated 22.6.2007 and G.O.Ms.No.63 Highways Department, dated 7.3.2008. The said policy decision was taken bearing in mind the traffic congestion in the Chennai City, free movement of cargos and vehicles to the Chennai Port Trust round the clock by three stages viz., the conception or planning, decision to undertake the project, and the execution of the project.
29. The Hon'ble Supreme Court in the decision reported in (2004) 9 SCC 362 (N.D.Jayal v. Union of India) held that once a considered decision is taken, proper execution of the same should be undertaken expeditiously and the Court has to ensure that the system works in the manner it was envisaged in accordance with law. The freedom of movement without obstruction is for the economic development and for the well-being of the inhabitants. While balancing the environmental issues, sustainable development must be the fundamental concept of Indian law. The said position is reiterated in the decisions reported in (2000) 10 SCC 664 Narmada Bachao Andolan v. Union of India); (2004) 12 SCC 118 (M.C.Mehta v. Union of India); (2006) 3 SCC 434 (Bombay Dyeing & Manufacturing Company Ltd. v. Bombay Environmental Action Group); (2006) 6 SCC 371 (Karnataka Industrial Areas Development Board v. C.Kenchappa); and Division Bench judgments of this Court reported in 2009 (4) LW 459 (S.Venkatesan v. Government of Tamil Nadu); 2011 WLR 404 (S.Venkatesan v. Government of Tamil Nadu).
30. In the decision reported in (2010) 10 SCC 282 (Nand Kishore Gupta v. State of U.P.) the State Government's decision for the construction of Yamuna Expressway for acquisition of land was upheld, holding that private rights will be affected to some extent when a mega project is implemented and therefore a holistic view has to be taken to look for an allround development. It was pointed out that the Expressway is a work of immense public importance. The State gains advantages from the construction of Expressway as in the case of General public. Creation of corridor for fast moving traffic resulting into curtailing travelling time as also transport of goods, which speaks in favour of the project being for the public purpose.
31. The Expert Body viz., NHAI has finalised the alignment for the Elevated Expressway. The same cannot be prevented from implementation by the PWD on the apprehension that if some pillars are put inside the cooum river, the same would obstruct the free flow of water during rainy season. The said apprehension has already been answered by the NHAI stating that they will ensure free flow of 25,000 cusecs of water at all times and the said position can be monitored by the High Power Committee or any other agency by the State Government.
32. In the decision of this Court reported in (2014) 1 MLJ 644 (NHAI through Project Director v. Secretary to Government, Public Works Department) the order passed by the PWD of the Government of Tamil Nadu ordering to stop the work of Highways through four tanks and make alternate alignment was challenged. This Court considered the said plea and following the judgments of the Supreme Court and of this Court, quashed the said order of stop work and granted permission to NHAI to complete the remaining project by recording the undertaking in respect of preservation of water bodies and to deepen the water body after completion of the project by NHAI. We are informed that the said order was accepted by the Government.
33. The decision cited by the learned Advocate General viz., 2003 (5) Bom CR 95 (Ameeta Shah, Colaba v. State of Maharashtra) was rendered by noticing the violations of the conditions stipulated in the Ministry of Environment and Forests mentioned in the permission granted. In this case, the CRZ permission was already obtained for the project on 25.2.2011 and even now the Ministry of Environment and Forests reiterates that the clearance given already is valid for completion of the project as there is no change in alignment. Therefore the said judgment has no application to the facts of this case.
34. The Division Bench judgment of this Court reported in 2005 (4) CTC 1 (L.Krishnan v. State of Tamilnadu) was in respect of preservation of water bodies by removing the unlawful encroachments taking note of the fact that collecting rain water for the use of various purposes is an obligation of the State. In this case, as already stated, the water flowing in the Cooum river is a sewerage water, which cannot be used for any purpose, except to drain to the sea. The objection of the State is, the pillars may obstruct free flow of drainage water and the rain water during rainy season. Hence, the said judgment also has no application to the facts of this case.
35. The unreported judgment of the Karnataka High Court in W.P.No.11630 of 2012 dated 4.6.2012 (Shri Pius Arun D'Souza & Others v. Union of India & Others) was in respect of not getting CRZ clearance. Hence, the Division Bench of the Karnataka High Court held that for construction, prior clearance of CRZ is mandatory. In the said case also the objection was that large quantity of mud was being placed on the river bed of Gurpur river while Road-cum-Pipeline Corridor Project of Mangalore SEZ Limited was carried out. In this case, as already stated, the CRZ clearance has already been obtained from the Ministry of Environment and Forests, which is reiterated on 11.2.2014. Hence, the said judgment has no application to the facts of this case.
36. The advantages in completing the mega project outweigh the alleged/possible disadvantage. The Hon'ble Supreme Court in the decision reported in (2013) 6 SCC 620 (G.Sundarrajan v. Union of India), in paragraph 240 reiterated the said proposition, which reads as follows:
"240. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. ...."
37. The advantages that can be derived from the mega project can be summarised as follows:
(i) The traffic congestion from Maduravoyal to Chennai Port, which runs through thickly populated middle portion of the City, will be reduced and the School and College going students and travelling public will be benefited by saving travelling time.
(ii) By reducing traffic congestion and free flow of traffic, there will be reduction in usage of fuel to a great extent.
(iii) Container lorries, Cargo carriers and other heavy vehicles can use the Elevated Expressway and accidents in other roads can be avoided.
(iv) The exposure of travelling public to carbon monoxide (due to emission from vehicles) will be minimised, which will promote healthy life, guaranteed under Article 21 of the Constitution of India.
(v) Promote import and export business by using the Chennai Port by the Industries and Business Houses to far off countries.
(vi) Increase employment opportunities to youth due to increase in import and export activities.
(vii) Right to development, which is also a valuable human right, will be guaranteed in the State in particular.
(viii) Removal and rehabilitation of Slum Dwellers and project affected persons numbering more than 7,400 families are ensured and the expenditure is agreed to be shared by the Chennai Port Trust and Government of Tamil Nadu, and the said task is assigned to the Tamil Nadu Slum Clearance Board.
(ix) Mega project will promote infrastructural development for establishment of new industries at large scale, which will fetch more revenue to the State Government.
(x) Trade and Commerce in the State will flourish to the maximum extent.
38. The demerits/apprehension of the contesting respondents is that there will be possible blockade of rain/storm water during rainy season, which may cause floods in residential areas. The same can be prevented by taking adequate and serious steps to ensure free flow of waste water to the maximum level of 25000 cusecs and the NHAI and the Concessionaire have already agreed to maintain the same. Hence no inundation is possible.
39. In fine, we are fully convinced for issuing writs as prayed for. Consequently, we set aside the impugned orders dated 28.1.2013 and 29.3.2012 passed by the Chief Engineer, PWD, Government of Tamilnadu, with a direction to the Government of Tamilnadu and all the contesting respondents to extend full co-operation for continuance of the project, which has already been started after getting CRZ clearance from the Ministry of Environment and Forests. The undertaking given before this Court by NHAI to maintain free flow of sewerage/rain water in Cooum river at the maximum level of 25000 cusecs at all times is recorded. At the time of construction also NHAI and the Concessionaire are directed to see that there shall be no obstruction and free flow of water in Cooum river and the debries/building materials are to be removed/stored in such a manner, without obstructing the free flow of water. The PWD of the Government of Tamilnadu to co-ordinate and monitor free flow of water along with NHAI authorities and the Concessionaire in Cooum River and all should work in tandem for early completion of the project.
40. The writ petitions are allowed with the above directions. No costs. Connected miscellaneous petitions are closed.
Index : Yes/No. (N.P.V.,J) (P.D.S.,J.)
Internet : Yes/No. 20th February, 2014
Note: Issue copy today itself.
vr
To
1. The Chief Secretary to Government,
Government of Tamil Nadu, Secretariat, Chennai 600 009.
2. The Secretary to Government, Public Works Department,
Government of Tamil Nadu, Secretariat, Chennai 600 009.
3. The Principal Secretary to Government,
Highways and Minor Ports Department,
Government of Tamil Nadu, Secretariat, Chennai 600 009.
4. The Secretary to Government, Housing and Urban Development,
Government of Tamil Nadu, Secretariat, Chennai 600 009.
5. The District Collector, Chennai District,
M.Singaravelar Maligai, 62, Rajaji Salai, Chennai 600 001.
6. The Managing Director, Tamil Nadu Slum Clearance Board,
Kamarajar Salai, Chennai 600 005.
7. The Chief Engineer, Public Works Department,
Water Resource Organization, Chennai Region, Chepauk,
Chennai 600 005.
8. The Executive Engineer, PWD, WRO, Araniyar Basin Division,
Chepauk, Chennai 600 005.
9. The Chairman, Chennai Port Trust, Kamarajar Salai,
Chennai 600 001.
10. M/s.Chennai Elevated Tollway Ltd., Plot No.14, Avenue 4,
Banjara Hills, Hyderabad 500 034.
11. The Secretary to Government,
Ministry of Road Transport and Highways, New Delhi 110 001.
12. The Secretary to Government, Ministry of Shipping,
Union Government, New Delhi 110 001.
13. The Ministry of Environment and Forest, Paryavaran Bhavan,
CGO Complex, Lodhi Road, New Delhi110 003.
14. The Chairman, National Highways Authority of India (NHAI),
New Delhi.
15. The Project Director, National Highways Authority of India,
Port Connectivity, No.1/54-28, Butt Road, St.Thomas Mount,
Chennai 600 016.
16. Chennai Metropolitan Development Authority (CMDA),
Thalamuthu Natarajan Building, Gandhi-Irwin Road,
Egmore, Chennai 8.
17. The Commissioner, Corporation of Chennai,
Rippon Building, Chennai.
18. The Chairman, Tamilnadu Slum Clearance Board,
Kamarajar Road, Chennai 5.
N.PAUL VASANTHAKUMAR, J.
and
P. DEVADASS, J.
vr
Pre-Delivery Common Order in
W.P.Nos.5934, 33152 of 2013
& 21638 of 2012
20-2-2014