Madras High Court
Selvakumar vs Union Of India on 9 November, 2010
Author: S.Nagamuthu
Bench: R.Banumathi, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/11/2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD).No.5769 of 2010 W.P.(MD).No. 11526 of 2010 and W.P.(MD).No.11705 of 2010 and M.P.Nos.2,1 and 1 of 2010 W.P.(MD).No.5769 of 2010 Selvakumar ... Petitioner Vs 1.Union of India, Rep by the Secretary to Central Government, New Delhi. 2.The National Highways Authority of India, Project Director, Karur. 3.The District Collector, Cantonment, Trichy I, Tamil Nadu. 4.The Chief Engineer, PWD, Water Resource Organization, Subramaniapuram, Trichy I, Tamil Nadu. 5.The District Revenue Officer, Competent Authority, Authorized Officer of NHAI, Trichy, Tamil Nadu. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents not to put up the road in the middle of the Piratiure Aarei (Kothamangalam), Trichy in connection with the new proposal made by the fifth respondent to form an alternate alignment. !For Petitioner ... Mr.N.R.Murugesan ^For Respondent 1 ... Mr.K.K.Senthilvelan, Asst. Solicitor General of India. For Respondents 2&5 ... Mr.P.Wilson, Additional Advocate General, Assisted by Mr.C.Arul Vadivel alias Sekar For Respondents 3&4 ... Mr.V.Rajasekaran Special Government Pleader W.P.(MD).No.11526 of 2010 Punganoor Eri Pasana Vivasayigal, Membattu Nala Sangam, Rep by K.R.Periyasamy Udayar, Secretary, Melatheru, Punganoor, Ramji Nagar Post, Tiruchi 9 ... Petitioner Vs 1.Union of India, Rep by the Secretary to Central Government, Ministry of Environment and Forests, New Delhi. 2.The National Highways Authority of India, Rep by its Chairman, New Delhi. 3.The State of Tamil Nadu, Rep by District Collector, Tiruchirappalli District, Tiruchirappalli. 4.The District Revenue Officer cum Competent Authority, National Highways (Land Acquisition), Collectorate, Tiruchirappalli I. 5.The Project Director, Officer of the Project Director, National Highways Authority of India, (NH-67), 10, Kamadhenu Nagar, Karur 639 001. 6.The Chief Engineer, Public Works Department, (Water Resource Organization), Subramaniapuram, Tiruchirappalli 620 020. 7.G.Narayanan Trust, Rep by its Managing Trustee, Sasthri Road, Tennur, Tiruchirappalli. 8.Bharathiya Kishan Sangam, Rep by its District Secretary of District Unit, M/s.P.Kannan, Trichy District. 9.T.K.Toll Road Private Limited., Rep by its Authoized Signatory, M/s.B.Muthusamy, Housing Office at 'H' Block, First Floor DAKC Navi, Mumbai, India. ... Respondents [R8&9 impleaded as per order dated 21.10.2010 in M.P.No.2 of 2010] PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the third respondent in Roc.No.29527/07/C4, dated 05.08.2010 and quash the same and consequently direct the respondents 1 to 6 to follow the procedure prescribed under S.O.1533(E), dated 14.09.2006 issued by the first respondent before proceeding with the expansion project of Trichy - Karur bye-pass four-lane road in NH-67. For Petitioner ... Mr.T.Mohan For Ms.D.Geetha For Respondent 1 ... Mr.K.K.Senthilvelan, Asst.Solicitor General of India. For Respondents 2&5 ... Mr.P.Wilson, Additional Advocate General Assisted by Mr.C.Arul Vadivel alias Sekar For Respondents 3&6 ... Mr.V.Rajasekaran Special Government Pleader For Respondent 7 ... Mr.R.Vijaiyakumar For Respondents8&9 ... Mr.Veerakathiravan W.P.(MD).No.11705 of 2010 M.Rajendran ... Petitioner Vs 1.Union of India, Rep by the Secretary, New Delhi. 2.The District Revenue Officer cum Competent Authority, National Highways (Land Acquisition), Collectorate, Tiruchirappalli I. 3.The Chief Engineer, Public Works Department, (Water Resource Organization), Subramaniapuram, Tiruchirappalli 620 020. 4.The Project Director, Officer of the Project Director, National Highways Authority of India, (NH-67), 10, Kamadhenu Nagar, Karur 639 001. 5.State of Tamil Nadu Rep by The District Collector, Tiruchirappalli District, Collectorate, Tiruchirappalli 620 001. 6.G.Narayanan Trust, Rep by its Managing Trustee, Sasthri Road, Tennur, Tiruchirappalli. 7.National Highways Authorities of India, Rep by its Chief General Manager, G6, 6th Chief General Manager, New Delhi 620 017. 8.The Director, Center for Water Resources, Guindy, Madras. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records in No.NHAI/BOT/11012/49/04 relating to the report of the Expert Committee appointed by the fourth respondent pursuant to the common order passed by this Court in W.P.(MD).Nos.9112 of 2009 and 9510 of 2009, dated 29.07.2010 and consequently directing the eighth respondent to constitute a Committee of Experts to find out and study and formulate a report suggesting the best alignment. For Petitioner ... Mr.S.K.Mani For Respondent 1 ... Mr.S.Balasubramanian For Respondents 4&7 ... Mr.P.Wilson, Additional Advocate General Assisted by Mr.C.Arul Vadivel alias Sekar For Respondents 3&5 ... Mr.V.Rajasekaran Special Government Pleader For Respondent 6 ... Mr.Veera kathiravan :COMMON ORDER
******************* S.NAGAMUTHU, J Two thousand years ago, Saint Thiruvalluvar, in one of his couplets "on the greatness of a Kingdom" wrote thus:
"nUg[dYk; tha;e;j kiya[k; tUg[dYk;
ty;yuZk; ehl;ow;(F) cWg;g[."
That is:
"Waters from rains and springs, a mountain near, and waters thence; These make a land, with fortress' sure defence".
which means:
The constituents of a kingdom are the two waters (from above and below), well situated hills and indestructible fort.
These writ petitions are all about waters. The conflict is between protection of environment and preparation for development. Striking a balance between these two, in public interest, shall resolve the dispute. With this prelude, let us go to the facts of these cases.
2. The National Highways Road No.67 from Tiruchirappali via Karur has been proposed to be widened. The said road passes through three villages, known as Kothamangalam, Kallikudi and Thaiyanur in Trichy District. As per the original approved project, the said road was proposed to be laid across Piratiure Aarei (Kothamangalam), Kallikudi Tank and Thaiyanur Tank, which are irrigation resources. Indisputably, for this proposal, the National Highways Authority gave appropriate approval and Environmental clearance had also been obtained from the Central Government. Based on the said proposal, the National Highways Authority requested the District Revenue Officer, Trichirappalli, to acquire the required lands for the implementation of the project. But, subsequently, the third respondent, the State Government, appears to have requested the fifth respondent to re-align the road on the ground that there were certain objections from the farmers, who are the beneficiaries of Kallikudi Tank.
3. The Government of Tamil Nadu, accordingly, forwarded a proposal of re-alignment for approval by the second respondent - National Highways Authority of India. As per the proposed new alignment, [hereinafter referred to as the "new alignment"], the road was proposed to run through the middle of the three tanks. But, the said proposal has not been approved by the second respondent - National Highways Authority of India.
4. While so, the fourth respondent issued notice under the National Highways Authority of India Act, 1988, intending to acquire certain lands for the purpose of forming new road, as per the new unapproved alignment. The Ayacutdars, for the said proposal, raised serious objections and the same were rejected by the District Revenue Officer - fourth respondent. It came to be challenged by the Tamil Nadu Agriculturists Association, Manikandam Ondirum, rep.by its Organiser M.P.Chinnadurai, Melapettai, Allithurai, Trichy by way of a Public Interest Litigation in Writ Petition (MD)No.9112 of 2009 and yet another Writ Petition by an individual farmer in W.P.(MD).No.9510 of 2009.
5. In those two Writ Petitions, the farmers raised several objections for the new alignment stating that it will virtually make the tanks defunct. In those Writ Petitions, it was contended by the respondents that the laying of the road, as per the new alignment would not in any manner minimize the storage of water in these three tanks and the irrigation. It was also contended that though the road divides the lakes into two segments, it will make way for free flow of water from one side to the other side by means of culverts across the road. After having considered the above contentions and after having referred to various Judgments of the Hon'ble Supreme Court, a Division Bench of this Court, by order dated 23.12.2009, [one of us Justice S.NAGAMUTHU was a member of the Bench], found justification in the submissions of the farmers. However, with view to strike a balance between the public interest involved in the laying of the road as per the project and the interest of the farmers, who are the beneficiaries of these tanks and the other factors like ecology, environment etc., this Court, while interfering with the proposal of the National Highways Authority, to lay the road as per the new alignment, issued the following directions;-
"(i)The National Highways Authority of India shall form a Committee of Experts who will visit the tanks and the nearby places, in coordination with the District Administration, Public Works Department and in the presence of Ayacutdars, after making proper publication of the visit and explore the possibility of realigning the road so as to either completely avoiding the road passing through the tanks in question or to minimise the disturbance to the tanks. While doing so, the Committee will consider all the objections of the agriculturists, the beneficiaries of Kallikudi Tank as well as Punganoor Tank.
(ii)The District Collector and the Chief Engineer, Public Works Department, are directed to give full assistance and cooperation to the National Highways Authority of India and the Experts Committee to complete the said exercise as directed above.
(iii)The agriculturists, who are the beneficiaries of both the Punganoor and the Kallikudi Tanks, may submit their further written objections, if any, to the National Highways Authority of India as well as to the Committee, which shall be duly considered by the Committee as well as the National Highways Authority of India.
(iv)Having regard to the fact that the project has to be completed before July, 2010, the National Highways Authority of India, the District Collector and the Public Works Department shall expedite the exercise.
(v)Until the said exercise is completed and a new alignment is approved by the National Highways Authority of India, the project, insofar as the same passing through the Tanks in question, shall be kept in abeyance.
(vi)The impugned order of the District Revenue Officer is set aside."
6. Admittedly, the said order of the Division Bench has become final. Based on the above directions of this Court, an Expert Committee was constituted by the National Highways Authority of India consisting of Dr.G.R.Swaminathan, Professor, Civil Engineering Department, National Institute of Technology, Tiruchirappalli, Mr.A.Rengasamy, District Environmental Engineer (i/c), Tamil Nadu Pollution Control Board, Tiruchirappali and Mr.K.Govindaraj, (Former National Expert Committee Member of Infrastructure & Miscellaneous Project, MOEF, Government of India, New Delhi, SEVAI, Non-Governmental Organization, Tiruchirappalli. The said Committee was co-ordinated by Mr.V.Dakshnamoorthi, District Revenue Offier, Tiruchirappalli, Mr.Moorthi, Chief Engineer, PWD, WRO, Tiruchirappalli and a Member Convenor Mr.M.Thanamani, The Project Director, National Highway Authority of India, Karur.
7. The constitution of the said Committee was not to the satisfaction of the farmers. One Mr.V.Balakrishnan, a farmer, therefore, filed a Writ Petition in W.P.No.21205 of 2009 before the Principal Seat of this Court, challenging the notification of the Union of India in S.O.No.1667(E) dated 08.07.2009 and praying for a consequential direction to the Director, Center for Water Resources, Guindy, Chennai, to conduct scientific survey and investigation with regard to the proposed alignment of the road cutting across the two lakes viz., Punganur lake and Kallikudi lake from environmental point of view and to submit a report before this Court.
8. The said Writ Petition came up for consideration before a learned Single Judge [T.S.SIVAGNANAM, J], who, after hearing the petitioner, the Union of India, National Highways Authority and the State Government, by order dated 22.02.2010, disposed of the said Writ Petition, wherein, the learned Single Judge directed that in addition to the conditions imposed by the Division Bench in W.P.(MD).Nos.9112 and 9510 of 2009, there shall be yet another condition to the effect that the Expert Committee constituted, as per the direction issued by the Division Bench, shall also take the opinion of the Director, Center for Water Resources, Guindy, Chennai, before submitting their final report. The operative portion of the order of the learned Single Judge in paragraph No.4 is as follows;-
"The learned Additional Advocate General also has no serious objection to such course being adopted by which expert committee as constituted by the Hon'ble Division Bench, may also consult the 8th respondent before finalizing their final report. In that view of the matter, the above Writ Petitions are disposed of on the following terms;-
(i). The National Highways Authority of India shall form a Committee of Experts who will visit the tanks and the nearby places, in coordination with the District Administration, Public Works Department and in the presence of Ayacutdars, after making proper publication of the visit and explore the possibility of realigning the road so as to either completely avoiding the road passing through the tanks in question or to minimize the disturbance to the tanks. While doing so, the committee will consider all the objections of the agriculturists, the beneficiaries of Kallikudi Tank as well as Punganoor Tank.
(ii). The District Collector and the Chief Engineer, Public Works Department, are directed to give full assistance and cooperation to the National Highways Authority of India and the Experts Committee to complete the said exercise as directed above.
(iii). The agriculturists, who are the beneficiaries of both the Punganoor and the Kallikudi Tanks, may submit their further written objections, if any, to the National Highways Authority of India as well as to the Committee, which shall be duly considered by the Committee as well as the National Highways Authority of India.
(iv). Having regard to the fact that the project has to be completed before July 2010, the National Highways Authority of India, the District Collector and the Public Works Department shall expedite the exercise.
(v). Until the said exercise is completed and a new alignment is approved by the National Highways Authority of India, the Project, insofar as the same passing through the tanks in question, shall be kept in abeyance.
(vi). The impugned order of the District Revenue Officer is set aside.
(vii). The expert committee as directed to be constituted shall also take the opinion of the 8th respondent before submitting their final report."
9. Yet another Writ Petition in W.P.(MD).No.5388 of 2010 was filed by a farmer, by name Mr.M.Rajendran, seeking a direction to the National Highways Authority of India to constitute an Expert Committee consisting the Filed of Irrigation, Field of Road laying, Filed of Agriculture and the Field of Intra Disciplinary nature embodying the above said three subjects. The said Writ Petition came up for hearing before a Division Bench of this Court presided over by Justice F.M.IBRAHIM KALIFULLA. It was contended before the Division Bench that the Experts Committee constituted by the Central Government as mentioned above, is not a real Committee of Experts, in the sense, in which it was ordered to be constituted by the earlier Division Bench. Regarding the same, several other objections were raised. After having considered the above objections, by order dated 20.04.2010, the Division Bench took note of the order dated 22.02.2010 made in W.P.No.21205 of 2009 and ultimately held as follows;-
"9. Above all, by virtue of the order of the Principal Bench dated 22.2.2010 in W.P.No.21205 of 2009, the Expert Committee's report has to be placed to the Director of Water Management of Anna University, who is an expert in the Water Management itself. Therefore any doubt in the minds of the petitioner or others will be duly safeguarded by the Director of the Water Management of Anna University. Therefore, we do not find any basis for the apprehension of the petitioner either in constituting the Committee or about their approach to the issue referred for their consideration. Since laying of the four lane road in the National Highway is also equally a vital project, the execution of which cannot be delayed any further, we are of the view that no more obstruction should be caused for the expert's committee as well as the ultimate decision of the Director of Water Management of Anna University in submitting their final report. Moreover, as directed by the Division Bench of this Court, the ayacutdars have also submitted their objections before the expert committee and therefore, they can be rest assured that their interest will be duly considered and taken note of by the expert committee as well as the Director of Water Management of Anna University before rendering their final opinion."
10. After all the above exercises, the committee nominated by the National Highways Authority of India made a visit on 03.04.2010 to the places in question. During the visit of the Committee, number of farmers appeared, filed written objections and also made oral representations. The Committee took into consideration the technical aspects involved in the formation of the road across all the three tanks and the other factors. Ultimately the Committee made the following recommendations suggesting a slight deviation in the new alignment as follows:-
"The Committee considers various alternatives with a mission that the impact for natural water sources like irrigation tanks of such nature catering to the agricultural needs of the nation should be minimal or nil due to the road project.
The suggestion of the Committee for adopting to the ill-alignment (marked as alternate alignment 2 in the drawing enclosed) keeping the II-alignment in Pirattiyur and Kallikudi Tank but connecting the II-alignment with I-alignment at Punganur tank (enclosed drawing) is based on the following facts/constraints. The drawing signed by the Expert committee members is enclosed.
1.The alignment of the road should cause minimal damage to the water body.
2. The alignment should be aligned such that volume reduction in the tanks should minimal.
3.The environmental impact, due to such road alignment through the said tanks, on Flora and Fauna is minimal.
4. The valid and reasonable views expressed by the stake holders i.e., the ayacutdars are addressed.
5. The alignment should not pass through the places of worship lest the religious sentiments are provoked.
Rational behind selecting the ill-alignment;
The Committee worked on various alternatives and the suggested ill- alignment as the best feasible alternative. Already the road formation is completed in Kothamangalam/Pirattiyur Tank. Proper irrigation measures have to be adopted such that the damage is minimized."
11. The Committee also suggested certain mitigations and measures, which would be useful in conservation of the water resources, which are as follows;-
"The three tanks are system tanks. The reduction in volume by the road formation is substantiated with arithmetic calculation. It was observed that major portions of the tanks got silted up. The capacity of the tank, as shown in the memoirs could have been the capacity during the formation of the said tanks. It appears that over several decades, no de silting operations were carried out in these tanks and subsequently only 50 to 60% of the total water spread area seems to be effectively storing the water. Considering the reduced storage of the said tanks and comparing with reduction in volume due the alignment of the road, the situation appears to be alarming.
The southern portions of Kallikudi Tank and Punganur Tank may be used as borrow pit site for the said road formation.
The ideal locations for such borrow pits will be 50m from the I-alignment of road in Kallikudi and Punganur Tank.
The borrow pits may be limited to the depth matching to the deepest sill level of sluices.
The number of pipe culverts should be provided as per the Chief Engineer Lr.No.A1/36/2009/NHAI, dated 17.07.2009.
The bed level of such culvert should be maintained to the invert level of lowest sluice available in the tank.
Considering the fact that, only 150m length of Kallikuti Tank intercepts with the road alignment, NHAI may provide one box culvert.
Any operations carried out within the tanks should not disturb the impervious soil layer in the bottom of the tank. If these layer of soil is disturbed, the water retention/holding capacity of tanks will altogether be lost.
The embankment of the road formed in all the three tanks should be turfed on both sides with chutes to drain storm water into the lake.
The custodian of the lakes, PWD Govt, of Tamil Nadu, should take adequate protection measures of encroachment of water spread area of all the three lakes. The proper demarcation stones may be provided in all the three lakes indicating the boundaries of the lakes.
The report upto this stage with recommendations was submitted to the Director, Centre for Water Resources, Anna University, Guindy, Chennai for obtaining the comments, as per the order of the Hon'ble High Court of Madras dated 22.02.2010 of W.P.No.21205 of 2009 & M.P.Nos.1,2&3 of 2009. After going through the report of the Director, Centre for Water Resources, vide lr.dt 12th May 2010, has given the following opinion;
"a). The highway should not pass through the tanks
b). The new alignment should at best be aligned along the boundaries of the tank without affecting the inflows or outflows from the tank.
c). if it is inevitable to align the highway in the tank, then the highway should be constructed over the bridges after proper hydraulic and hydrologic analysis so that there is no obstruction to the inflow into and outflow from the tank."
12. As directed by the earlier Division Bench in W.P.(MD).No.5388 of 2010, the report of the Experts Committee was submitted to the Director, Centre for Water Resources, Anna University, Guindy, Chennai, for obtaining his comments as per the order dated 22.02.2010 made in W.P.No.21205 of 2009.
13. As a matter of fact, when the Expert Committee constituted by the National Highways Authority visited the tanks, the Director, Center for Water Resources, had deputed three faculty members on behalf of the Director to accompany the Expert Committee during the Committee's visit on 03.04.2010. After going through the recommendations of the National Highways Authority of India Expert Committee, the Director, Center for Water Resources, under letter dated 12.05.2010, to the committee of Experts headed by J.Swaminathan, has stated as follows;-
" It is seen from the recommendations of the Expert Committee, the proposed highway bifurcates the two lakes viz., the Kothamangalam Tank of Prattiyur Village. (chaingage 1+564.83 to chainage 2+532.14) and the Punganur Tank (a.k.a Thayanur Tank) (chainage 4+427.83 to chainage 6+250). It also crosses the Kallikudi Tank from chainage 3+850 to 3+971.69). Tank irrigation plays a dominant role in irrigated agriculture. Many of the tank systems which were adequate during their time of construction have over the years deteriorated and are inadequate to meet the exacting demands of the high yielding crops. This, along with pollution and encroachment is further deteriorating the available water resources. Thus, it is our duty to protect the existing tanks and to improve them. There are numerous examples where a highway or a railway embankment has divided the tank and rendered it defunct."
"a). The highway should not pass through the tanks
b). The new alignment should at best be aligned along the boundaries of the tank without affecting the inflows or outflows from the tank.
c). if it is inevitable to align the highway in the tank, then the highway should be constructed over the bridges after proper hydraulic and hydrologic analysis so that there is no obstruction to the inflow into and outflow from the tank."
14. Based on the above opinion of the Director, Centre for Water Resources, the Committee of Experts constituted by the National Highways Authority agreed with the views expressed by the Director in the following words-
"A copy of the report of the Director, Centre for Water Resources, Anna University, Chennai, is also enclosed herewith. The Expert Committee went through the opinions of the Director, Centre for Water Resources, Anna University, Guindy, Chennai and does not differ with the views expressed by the Director, Centre for Water Resources, Anna University, Guindy, Chennai. "
Proceeding further, the Committee stated as follows;-
"As the report of the Director, Centre for Water Resources, Anna University, Guindy, Chennai reads that "there are numerous examples where a highway or a railway embankment has divided the tank and rendered it defunct"
the Expert committee also decided to recommend the NHAI to choose the alternative (a) or (b) suggested by the Director, Centre for Water Resources, Anna University, Guindy, Chennai and inevitably if the option, c), suggested by the Director, Centre for Water Resources, Anna University, Guindy, Chennai of providing road through the tanks over bridge without disturbing the inflow and outflow is preferred by NHAI, it should be done, subject to the following conditions:
1. The revised alignment suggested by the Expert Committee considering the minimum damages to the tank shall be implemented (drawing enclosed).
2. The hydrological calculations show that the minimum requirement of interlinking of water bodies on both sides of the road is 0.5 m diameter. However, adequate factor of safety shall be allowed.
3. The construction of the road shall be done in consultation with Public works Department (PWD) as insisted vide their lr.No.A1/F-36/2009/NHAI, dated 17.7.2009.
4. As the PWD has already studied the area and suggested to provide hydraulic structures vide their lr.No.A1/F-36/2009/NHAI, dated 17.7.2009. Their recommendations shall be scrupulously followed.
5. The NHAI shall ensure that no damages shall be caused to the agricultural activities during the construction and operation of the road.
6. The NHAI shall ensure that adequate deepening of the tanks shall be made to compensate the loss of storage of water in accordance with the letter of PWD No.A1/F-36/2009/NHAI, dt. 17.7.2009.
7. The NHAI shall ensure that the Southern portion of higher elevations of Kallikudi Tank and Punganur Tank may be used as borrow pit site for the said road formation.
8. The NHAI shall ensure that the borrow pits will be 50 m from the 1- alignment (DPR alignment) of road in Kallikudi and Punganur Tank.
9. The NHAI shall ensure that the borrow pits may be limited to the depth matching to the deepest sill level of sluices.
10. The NHAI shall ensure that the bed level of such hydraulic structures should be maintained to the invert level of lowest sluice available in the tank to ensure proper inflow and outflow of water.
11. Considering the fact that, only 150m length of Kallikudi tank intercepts with the road alignment, NHAI shall provide adequate hydraulic structures in consultation with PWD so that inflow and outflow is not affected.
12. The NHAI shall ensure that any operations carried out within the tanks should not disturb the impervious soil layer in the bottom of the tank. If this layer of soil is disturbed, the water retention/holding capacity of tanks will altogether be lost. Hence, the execution of road under the supervision of PWD.
13. The NHAI shall ensure that the embankment of the road formed in the tanks should be provided with suitable revetment and turfed along the slobs with chutes to drain storm water into the tank.
14. The custodian of the Tanks, PWD Govt. of Tamil Nadu, should take adequate protection measures against encroachment of water spread area of all the tanks. The proper demarcation stones may be provided in all the tanks indicating the boundaries of the tanks.
15. The NHAI shall ensure that if the revised alignment is opted for construction it should get the clearance from NHAI, New Delhi as per the directions of the Honourable High Court and the construction shall be kept in abeyance till the approval is obtained."
15. Based on the above report of the Committee, the District Revenue Officer, Tiruchirappalli, by order dated 05.08.2010, rejected all the objections of the farmers and decided to go ahead with the project, as per the alignment proposed by the Experts Committee. Aggrieved over the same and for a consequential direction not to lay the road across the three tanks, these three Writ Petitions have been filed.
16. We have heard the learned respective counsel appearing for the petitioners, Mr.P.Wilson, learned Additional Advocate General appearing for the National Highways as well as the State Government, Mr.K.K.Senthilvelan, ASGI for the Union of India and other learned counsel for private respondents. We have also perused the records carefully.
17. At the outset, we may say that agriculture is the backbone of this Country, since more than 65% of the population, more particularly, the people, who live under poverty line, mostly the village folk, are engaged in agriculture sector. Rivers, Lakes, Tanks, Channels and other water bodies, which are natural resources for irrigation, are the lifeline of the industry of agriculture. Such irrigation resources are not only important for agriculture, but also to preserve the ecology and environment. That is the reason why,the importance of preserving these kinds of lakes, tanks and other water bodies, which are essential natural resources, has been repeatedly stressed by the Courts in India. As a matter of fact, even the water policy of the Government of India itself underlines the importance of preserving the natural water bodies for the development of the Country. If the agricultural industry fails, the people, who are involved in agricultural sector and who are mostly living in rural areas will start slowly migrating to the nearby urban and semi urban cities searching for some other job. This exodus is not good for the well being of the country.
18. It is also a well known fact, but for the green revolution, which the country could accomplish, the country would have ended up in famine. Such revolution could be accomplished because of series of research, development and technology transfer initiatives. The Initiatives involved the development of high-yielding varieties of cereal grains, expansion of irrigation infrastructure and distribution of hybridized seeds, synthetic fertilizers and pesticides to farmers. Agriculture, in this State, mainly depends on the surface water. It is only because of frequent failure of monsoons, the farmers have to go for deep bore-wells as an alternative resource of irrigation. But, the exploitation of deep bore-well waters can be only an exception, when the surface water is not sufficiently available to meet the demands of the industry. To store the surface water, more particularly, the rain water, it is absolutely necessary for the Governments, both Central and State, to preserve lakes, tanks and other water bodies and if possible to augment their capacities so that exploitation of the ground water can be avoided as far as possible and surface water is made abundantly available for agriculture so that the country flourishes more and more as self-reliant in food front.
19. While stressing the need for preserving the water bodies, the other projects, like the highways cannot be undermined. The roads and transport play a vital role in the transformation of the country. It would not be possible even to transport our agricultural products to the market and to the consumers, unless we have easy flow of transport. Similarly, in this computer world, where everything has become very fast, the transport should also be made minimum time consuming. The considerable reduction of time consumption in transport could be achieved by improving the road conditions. The National Highways Authority, as has been stated by the learned Additional Advocate General, has been pumping in huge amount in the road projects. For over all growth of the country, there can be no doubt that the roads are also as important as water bodies.
20. Now, turning to environmental aspects, we have to state that pollution free air, water etc., are absolutely essential for the well being of the humanity. These rights have become a part of the right to life guaranteed under Article 21 of the Constitution of India. Good environment will make a good nation. To create and to retain good environment, ecological imbalances should be avoided. It is for these reasons, both the Central and the State Governments have been taking several steps to ensure the ecological balance and consequently, a good environment. All the laws relating to the pollution are achieving the above. As we have already stated, while stressing the need for preserving water bodies and implement the other projects like highways, it should be ensured that there shall occur no ecological imbalances.
21. In this regard, we may usefully refer to a Judgment of the Hon'ble Supreme Court in Research Foundation for Science, Technology and Natural Resource Policy v. Union of India reported in AIR 2007 SC (Supp) 852. Speaking for the Bench, the Hon'ble Mr.Justice S.H.KAPADIA, [as he then was], while re- affirming the principle known as "precautionary principle", which is a concept of sustainable development as formulated in Research Foundation for Science Technology National Resource Policy v. Union of India and another reported in 2005 (10) SCC 510, has quoted paragraph No.16 of the said Judgment, which reads as follows;-
"16. The legal position regarding applicability of the precautionary principle and polluter-pays principle which are part of the concept of sustainable development in our country is now well settled. In Vellore Citizens' Welfare Forum v. Union of India1 a three-Judge Bench of this Court, after referring to the principles evolved in various international conferences and to the concept of "sustainable development", inter alia, held that the precautionary principle and polluter-pays principle have now emerged and govern the law in our country, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes including the Environment (Protection) Act, 1986, these concepts are already implied. These principles have been held to have become part of our law. Further, it was observed in Vellore Citizens' Welfare Forum case1 that these principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law. Reference may also be made to the decision in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu2 where, after referring to the principles noticed in Vellore Citizens' Welfare Forum case1 the same have been explained in more detail with a view to enable the courts and the tribunals or environmental authorities to properly apply the said principles in the matters which come before them. In this decision, it has also been observed that the principle of good governance is an accepted principle of international and domestic laws. It comprises of the rule of law, effective State institutions, transparency and accountability and public affairs, respect for human rights and the meaningful participation of citizens in the political process of their countries and in the decisions affecting their lives. Reference has also been made to Article 7 of the draft approved by the Working Group of the International Law Commission in 1996 on "Prevention of Transboundary Damage from Hazardous Activities" to include the need for the State to take necessary "legislative, administrative and other actions" to implement the duty of prevention of environmental harm. Environmental concerns have been placed on the same pedestal as human rights concerns, both being traced to Article 21 of the Constitution. It is the duty of this Court to render justice by taking all aspects into consideration. It has also been observed that with a view to ensure that there is neither danger to the environment nor to the ecology and, at the same time, ensuring sustainable development, the court can refer scientific and technical aspects for an investigation and opinion to expert bodies."
[Emphasis supplied].
22. Yet another concept, known as "the concept of balance under the principle of proportionality applicable in the case of sustainable development was stated by the Hon'ble Supreme Court in T.N.Godavarman Thirumalpad vs. Union of India and others reported in 2002 (10) SCC 606, in paragraph No.35 held as follows-
"35. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship."
23. Referring to the above, in AIR 2007 SC (Supp), 852, the Hon'ble Supreme Court has concluded as follows;-
"The above paragraphs indicates that while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand."
The Hon'ble Supreme Court further proceeds to state as follows;-
"11. India after globalization is an emergent economy along with Brazil, Russia and China. India has economic growth of above 9%. However, that growth is lop-sided. A large section of the population lives below poverty line. India has largest number of youth in the world. Unemployment is endemic. Article 21/14 is the heart of the Chapter of fundamental rights. Equality of opportunity is the basic theme of Article 14. In an emergent economy, the principle of proportionality based on the concept of balance is important. It provides level playing field to different stakeholders. Ship breaking is an industry. When we apply the principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public interest on the other hand. This is where the principle of proportionality comes in."
24. In Susetha v. State of Tamil Nadu reported in 2006 (6) SCC 543, in paragraph No.20, the Hon'ble Supreme Court has held as follows;-
"The doctrine of sustainable development although is not an empty slogan, it is required to be implemented taking a pragmatic view and not on ipse dixit of the Court."
25. In yet another case in N.D.Jayal and another vs. Union of India reported in 2004 (9) SCC 362, the Hon'ble Supreme Court has held as follows;-
"24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. The right to development encompasses much more than economic well- being, and includes within its definition the guarantee of fundamental human rights. The "development" is not related only to the growth of GNP. In the classic work, Development As Freedom, the Nobel prize winner Amartya Sen pointed out that "the issue of development cannot be separated from the conceptual framework of human right". This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples' well-being and realization of their full potential. It is an integral part of human rights. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development.
25. Therefore, the adherence to sustainable development principle is a sine quo non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to "sustainable development" cannot be singled out. Therefore, the concept of "sustainable development" is to be treated as an integral part of "life" under Article 21. Weighty concepts like intergenerational equity (State of H.P.v. Ganesh Wood Products", public trust doctrine (M.c.Mehta v. Kamal Nath) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development. "
26.In A.P.Pollution Control Board vs. Prof.N.V.Naidu, reported in 1999(2) SCC 718, the Hon'ble Supreme Court has held as follows:
"38.The precautionary principle suggests that when there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threat to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment."
27. Having regard to the above concepts as laid down by the Hon'ble Supreme Court repeatedly, when the petitioners herein came up before this Court on the earlier occasion with a batch of Writ Petitions in W.P.(MD).Nos.9112 and 9510 of 2009, this Court, after having noticed the materials placed, more particularly, the sketch map showing the tanks in question and the proposed road to be laid across these three tanks, capacity of these tanks, area of irrigation from these tanks and all the other aspects, disposed of the said Writ Petitions with directions, as extracted in the earlier paragraph of this Order.
28. To repeat, this Court directed the National Highways Authority to explore the possibility of laying the road by completely avoiding the tanks or to lay the road across these tanks by minimizing the disturbance to the tanks. This Court further directed the National Highways Authority to nominate a Committee of Experts for their opinion. Admittedly, based on the said order, a Committee consisting of three experts was constituted by the National Highways Authority. When a similar Writ Petition was filed before the Principal Seat of this Court in W.P.No.21205 of 2010, as we have already noticed, a learned Single Judge of this Court, added one more obligation to the Committee of Experts to get the opinion of the Director, Center for Water Resources, Anna University Guindy, Chennai.
29.When the composition of the said Committee was challenged in the subsequent Writ Petition in W.P.(MD).No.5388 of 2010, a Division Bench of this Court held that the decision of the Director, Center for Water Resources shall be ultimate and the same shall be considered by the NHAI Committee before submitting its report. The Director, Center for Water Resources has also nominated faculties from the Anna University to accompany the Body of Experts appointed by the National Highways Authority and the said faculties had, thus, occasion, to make a thorough study and to return back with a report to the Director, Center for Water Resources. The HNAI Experts Committee also submitted its report to the Director, Center for Water Resources.
30. As we have already extracted, the Director, after considering the recommendations of the Experts Committee, has stated as follows;-
"The proposed highway bifurcates the two lakes viz., the Kothamangalam Tank of Prattiyur Village. It also crosses the Kallikudi Tank. According to him, tank irrigation plays a dominant role in irrigated agriculture. Many of the tank systems which were adequate during their time of construction have over the years deteriorated and are inadequate to meet the exacting demands of the high yielding crops. This, along with pollution and encroachment is further deteriorating the available water resources. Thus, it is our duty to protect the existing tanks and to improve them. There are numerous examples where a highway or a railway embankment has divided the tank and rendered it defunct."
(emphasis supplied)
31. These painful observations of the Director, Centre for Water Resources and that of Dr.B.V.Mudgal, Assistant Professor, Centre for Water Resources, Anna University, Chennai, Thiru R.Balamurugan, Senior Lecturer, Centre for Water Water Resources, Anna University, Chennai and Thiru Lenin Kalyanasundaram, Lectuter, Centre for Water Resources, Anna University, Chennai, need due attention.. The apprehension expressed by these Experts that the laying of highway or railway embankment, which divides the tank ultimately render the tank defunct requires serious consideration. Having made the above painful observations in respect of this project in question, the Experts from the Centre for Water Resources, Anna University, Chennai, expressed the following three definite opinions;-
"a). The highway should not pass through the tanks
b). The new alignment should at best be aligned along the boundaries of the tank without affecting the inflows or outflows from the tank.
c). if it is inevitable to align the highway in the tank, then the highway should be constructed over the bridges after proper hydraulic and hydrologic analysis so that there is no obstruction to the inflow into and outflow from the tank."
[Emphasis supplied].
32. The above opinion of the Experts from the Centre for Water Resources was duly considered by the Committee of Expertes appointed by the National Highways Authority of India. The said Committee did not have anything to say against the said opinion. As a matter of fact, in its final report, the said Committee has categorically stated as follows;-
"The Expert Committee went through the opinions of the Director, Centre for Water Resources, Anna University, Guindy, Chennai and does not differ with the views expressed by the Director, Centre for Water Resources, Anna University, Guindy, Chennai".
[Emphasis supplied].
33. From the above words of the Experts Committee constituted by the National Highways Authority of India, it is manifestly clear that both the Experts Committees have categorically stated that there are only three options available for the National Highways Authority of India to follow as extracted above.
34. Now, it is the case of the National Highways Authority that they have opted to go by the third suggestion (option-'c') made by the Committee, as extracted above. According to the respondents - National Highways Authority, to align the road across these three tanks has become inevitable, since other two modes are not feasible. It is further contended that almost 85% of the work has been completed and what remains is only 15% of the work. If the alignment is to be changed at this stage, it will involve monetary loss to the Government and there is no viable alternative alignment also. Thus, according to the respondents - National Highways Authority, laying of the road across these three tanks has become inevitable.
35.It is the further stand of the respondents - National Highways Authority that as suggested by the Committees, by laying of the said road across these three tanks, it will be ensured that there is no obstruction to the inflow into and outflow from the tan and this will be made possible by constructing as many number of culverts and minor bridges as are required.
36. It is contended by the learned Additional Advocate General that even as early as on 17.07.2009, the Chief Engineer, Public Works Department, under his letter No.A1/36/2009/NHAI has stated that number of pipe culverts should be provided. In the counter filed by the Chief Engineer, Public Works Department, it is stated that insofar as the Punganur Tank is concerned, the total outflow of water from the sluice and weir is 1000 cusecs. But, it is proposed to provide four culverts and two minor bridges for streams and local drains in the alignment of the Road. Thus, the total discharge from these six opening is 4160 cusecs, i.e., it is nearly more than four times of tank outflow. In respect of Kallikudi Tank, the total outflow of water from the sluice and weir is 575 cusecs, whereas it is proposed to have one minor bridge for streams and local drains in the alignment of the road. The total discharge from this minor bridge is 1380 cusecs, which is nearly more than 2 time of tank outflow. In respect of Kothamangalam Tank, the total outflow of water from the sluice and 7 weir is 915 cusecs, whereas three culverts for streams shall be provided, from which the total discharge from these three openings will be 1170 cusecs, which is nearly more than the tank outflow.
37. Relying on the above, the learned Additional Advocate General would submit that there shall be no obstruction to the inflow into and outflow from the tanks by the road across these three tanks. He would further submit that constructing the over bridges for the purpose of laying the road shall cause huge monetary commitment to the Government. He would further state that roughly, a sum of Rs.25 crores shall be required, as additional cost, if over bridges are to be constructed, across these three tanks, which is not economically viable. Therefore, according to the learned Additional Advocate General, the third option suggested by the Committee, which has been approved by the Project Director of the National Highways Authority is proposed to be undertaken in which the petitioners cannot have any grievance.
38. Per contra, Mr.T.Mohan, the learned counsel appearing for one of the Writ Petitioners would submit that
(i)the order impugned in these Writ Petitions has been passed by an incompetent authority, viz., the Project Director and not by the Competent Authority, viz., the Chairman of the National Highways Authority. Whether it is inevitable to lay the road across these three tanks is a matter to be independtly assessed by the Competent Authority, viz., the Chairman of the National Highways Authority and thus, the impugned order is liable to be quashed for want of power and jurisdiction for the Project Director to pass the impugned order.
(ii). He would further submit that in the impugned order, there is nothing on record to show that for the other two options (option a & b) are not feasible and that the third option, viz., taking the route through the tanks is inevitable.
(iii). Assuming that the third option is inevitable, even then, as suggested by the Experts Committee, the road can be laid by constructing over bridges so that there shall be no disturbance to the inflow as well as outflow of water in these tanks.
(iv). The learned counsel would also highlight that the Committee has stated in categorical terms that such road shall be laid only on over bridges and not by constructing any culverts and minor bridges, as suggested by the National Highways Authority.
(v).Regarding the cost effect, the learned counsel would submit that there is nothing to suggest as to what would be the cost involved in constructing the over bridges.
(vi)He would further submit that even if it is true that there shall be more investment in this regard, that shall not be a ground to make these tanks defunct by laying the road across the tanks, which is the life line for thousands of Ayacutdars whose lands in thousands of acres will be affected.
(vii) Lastly, he would submit that the environmental clearance has not been obtained from the Ministry of Environment as required under law.
39.Mr.S.K.Mani, the learned counsel appearing for one of the Writ Petitioners has taken us through the report of the Committee and the counter filed in the earlier Writ Petitions to substantiate his contentions that the options A and B are very much viable and even assuming that the third option is inevitable, the same shall be done only by strictly adhering to the suggestions made by the Experts Committee that the road shall be constructed only on over bridges. In other words, he would adopt the arguments of Mr.T.Mohan, learned counsel appearing for the other Writ Petitioner. Mr.N.R.Murugesan, learned counsel appearing for one of the Writ Petitioners would also adopt the arguments advanced by the above learned counsel.
40. We have carefully considered the above submissions. As we have already noticed, there are two bodies of Experts. One body of Experts are experts in water resources, who are drawn from the Center for Water Resources, Anna University, Chennai. In their report, they have suggested that the third option (option-C) may be adopted by the National Highways Authority, provided it is inevitable. Therefore, it is for the National Highways Authority to give reasons as to why and how, the third option has become inevitable. The other body of Experts are the experts nominated by the National Highways Authority. They are experts in Civil Engineering, Environmental Engineering and Infrastructure Engineering. These three experts are not experts in water resources. That is why, when a challenge was made in respect of the constitution of the Experts, this Court in W.P.(MD).No.5388 of 2010 held that the decision of the Director, Centre for Water Resources, Anna University, Guindy, Chennai, shall be ultimate.
41. Therefore, it is needless to point out that the body of experts drawn from the Water Resources, Anna University, who are experts in water resources should be given due preference than that of the report in this regard submitted by the Committee of Experts nominated by the National Highways Authority. The Committee nominated by the National Highways Authority, after considering the report of the Centre for Water Resources, Anna University, Chennai, has stated that in the event, the options 'A' and 'B' are not conducive for the National Highways Authority to adopt, and in the event of adopting the third option, certain other conditions are to be followed. As a matter of fact, as many as 15 additional conditions have been added to option 'c', which was originally suggested by the body of experts, Anna University Chennai.
42. The learned Additional Advocate General would rely on condition Nos.1 and 11 to submit that these two conditions will take care of the preservation of the tanks. These two conditions relate to the construction of the required number of hydraulic and hydrologic structures across the road for water to flow from one side of the road to the other side of the road. Relying on the above, the learned Additional Advocate General would submit that when the body of experts have given the above opinion, and when the same has been accepted by the National Highways Authority, it is not for the Court to substitute its views. In our considered opinion, the said contention has no force. As we have already stated, the real experts in the matter of water resources are only the experts from Anna University, Chennai, who have categorically stated that the option 'c' could be adopted, if only the same is inevitable. Regarding this opinion, there is no conflict between the two expert bodies at all.
43. A close reading of the report of the Experts of the National Highways Authority would go a long way to show that they have not at all stated that option 'c' is inevitable. To the contrary, they have only suggested that in the event of the National Highways Authority deciding to adopt option 'c', 15 additional conditions are to be satisfied. But, indisputably, we have to state that the National Highways Authority has not at all come to the conclusion that option 'c' is inevitable.
44. The learned Additional Advocate General would point out that the Committee of the National Highways Authority has stated that for adopting option 'c', it would be suffice if sufficient number of culverts and minor bridges are constructed so as to ensure free flow of water across the roads. This opinion of the National Highways Authority is based on the letter of the Chief Engineer, Public Works Department, dated 17.07.2009. In fact, the said letter is prior to all the earlier litigations. Relying on the suggestion of the Experts of NHAI, the learned Additional Advocate General would contend that required number of culverts and minor bridges would be constructed and the same would take care of free flow of water and so, option 'c' would alone be viable. This argument needs only to be rejected in view of the categorical opinion of the experts from Anna University who have not accepted the suggestion to construct culverts and minor bridges across the road, as suggested by the National Highways Authority Experts. The Experts of the Anna University have been very emphatic in stating that in the event, the laying of the road across these three tanks becomes inevitable, the same shall be laid only by constructing "over bridges".
45.The only reason stated by the learned Additional Advocate General not to go for constructing over bridges across the tanks is the cost factor. It may be true that for constructing such projects across the tanks, huge cost may be added to project costs. In order to appreciate this contention, one may have to again look into the view expressed by the Experts for Water Resources, Anna University, where they have highlighted the same in the following words;-
"Tank irrigation plays a dominant role in irrigated agriculture. Many of the tank systems, which were adequate their time of construction have over the years deteriorated and are inadequate to meet the exacting demands of the high yielding crops. This, along with pollution and encroachment is further deteriorating the available water resources. Thus, it is our duty to protect the existing tanks and to improve them. There are numerous examples where a highway or a railway embankment has divided the tank and rendered it defunct."
(emphasis supplied)
46. The above statement of the Experts cannot be viewed lightly. It is only out of their experience and by making a scientific survey of several such tanks where embankments have been made for highway or railway, with pains, they have stated that such embankments divide the tanks and render the same defunct. In the case on hand, that is the reason why, they have suggested that ,in the event of laying the road across the tanks when it is inevitable, the same should be laid by constructing over bridges. Therefore, though the respondents may have to incur additional expenditure, which may even be huge, that alone cannot be a ground to make the tanks defunct by laying the road without constructing over bridges.
47. As we have already noticed in the earlier paragraphs of this order from several judgments of the Hon'ble Supreme Court, the country marches forward to achieve sustainable development. Sustainable Development is a concept, which has been well recognized in the international sphere. When there is a conflict between protection of environment and sustainable development, the Court has to see on which side public interest involves.
48.At this juncture, we may have a glance through what Hon'ble Mr.Justice S.B.Sinha (as he then was) had to say in "M.C.Bhandari Memorial Lecture" on the topic "Environmental Justice in India", wherein he has stated as follows:
"Balancing environmental conservation and sustainable development.
Striking a balance between protection of the environment and sustainable development is an onerous and delicate task. In a given case the court has to weigh on which side the balance of public interest tilts. I quote a couple of cases decided by the Supreme Court, which highlight this point. One is Narmada Bachao case where the Supreme Court negatived the threat perception to the environment in favour of economic development of the area. No doubt in the process, directions were given to ensure that degradation of the environment does not take place. The importance of sustainable development has been stated in M.C.Mehta v. Union of India by the Apex Court holding that it is one of the principles underlying environmental law. The Apex Court broadened the scope of environment pollution by bringing into its ambit noise pollution and health care of the people.
Encroachment on liberty of others:
....
These cases thus highlight how we have to achieve sustainable development and strike a balance between the economic development and protection of the environment as also the rights of the people. Let us hope and pray that we will have a better world tomorrow for our children to live in."
49.In this case, the private interest of the Ayacudars is only incidental. What is the paramount interest is the interest of the public to protect these tanks not only for irrigation purposes, but mainly to maintain ecology and environment. Widening the road in question is also as important as any other project in public interest. To strike a balance between these two interests, in our considered opinion, if it is only inevitable to lay the road across these tanks, the authorities would be justified in proposing to do so. When the other alternatives have not been examined by the National Highways Authority as suggested in the options 'A' and 'B', it cannot be stated that the balance tilts in favour of the laying of the road across these tanks. Assuming, as we have already discussed, that there is no viable alternative except to lay the road across these tanks, the same should be laid only by constructing bridges across the tanks, as per the opinion expressed by the Committee. Since laying of the road across the tanks by constructing culverts and minor bridges will only make the tanks defunct, we are of the considered view that the respondents - National Highways Authority is not justified in again stating that they will lay the road across the tanks by constructing culverts and minor bridges. This proposal is surely against the opinion expressed by the body of Experts. Thus, the way in which it is proposed will surely be detrimental to sustainable development.
50.It is contended by the learned Additional Advocate General that almost 85% of the work has been completed and, therefore, if the alignment is to be changed, the money spent already in the project will become waste. Therefore, according to him, applying the principle "fait accompli", it has become unavoidable that the road has to be laid only through these tanks. Factually, this statement of the NHAI is disputed by the petitioners. This argument of the learned Additional Advocate General cannot be countenanced, as there are no materials produced before us that it is impossible to abandon the proposal to lay the road by re-aligning the same. Assuming that some progress has been made and that few lakhs of money has been spent, that cannot be a ground to allow the project to go further. In this regard, we may refer to the judgment of the Hon'ble Supreme Court in Intellectual Forum vs. State of Andhra Pradesh - (2003) 3 SCC 549, wherein, in paragraphs 88 and 93, the Court has observed as follows.
"88. However, some of the environmental activists, as noted in The Environmental Activities Handbook authored by Gayatri Singh, Kerban Ankleswaria and Colins Gonsalves, that the Judges are carried away by the money spent on projects and that mega projects, that harm the environment, are not condemned. However, this criticism seems to be baseless since in Virender Gaur v. State of Haryana13 this Court insisted on the demolition of structure which have been constructed on the lands reserved for common purposes and that this Court did not allow its decision to be frustrated by the actions of a party. This Court followed the said decision in several cases issuing directions and ensuring its enforcement by nothing short of demolition or restoration of status quo ante. The fact that crores of rupees were spent already on development projects did not convince this Court while being in a zeal to jealously safeguarding the environment and in preventing the abuse of the environment by a group of humans or the authorities under the State for that matter.
*** *** *** ***
93. Another plea repeatedly taken by the respondents corresponds to the money already spent on developing the land. However, the decision of this case cannot be based solely upon the investments committed by any party. Since, otherwise, it would seem that once any party makes certain investment in a project, it would be a fait accompli and this Court will not have any option but to deem it legal."
51.When a similar question as to whether to allow the NHAI to lay road across an irrigation tank known as "Narikulam" came up for consideration before a Division Bench of this Court, presided over by Justice F.M.IBRAHIM KALIFULLA (vide Conservation of Nature Trust v. Director of NHAI and others reported in 2010 CIJ 43 GBJ). In paragraph Nos.37 to 39, the Court has held as follows;-
"In the above stated legal background, when we analyse the case on hand, we are of the view that applying the principles of Sustained Development, Precautionary Principle and Public Trust doctrine, it is imperative that in the interest of the public at large the laying of four lane road to improve and ease the transport mobility will have to be appreciated and allowed to be made without any hindrance. At the same time such a project can be permitted to be carried on without causing any serious damage to the natural water resources and under exceptional circumstances only with least damage to it. The principles which can be kept in mind while dealing with the issue involved in these writ petitions can be broadly stated as under:
(a)Disturbance to the aquifers which are the source of ground water cannot be permitted.
(b)If Natural Drainage Pattern of the surrounding area which feed the water body during rainy seasons exists, it is paramount that such water body should be allowed to exist without any disturbance.
(c)"The Precautionary Principle" and "Polluter Pays Principle" are essential features while considering the concept of Sustainable Development.
(d)If there is threat of serious or irreversible damage and if it is not possible to make a decision with 'some' confidence, then it will make sense to err on the side of the caution and prevent activities that may cause irreversible harm.
(e)Maintaining the material resources of the community like forests, tanks, ponds, lakes, hillocks, mountain, etc., without causing any destruction, should be the rule and the exception can be only under inevitable circumstances and in rarest of rare cases and that too by providing sufficient safeguards and whatever costs for such protective measures should be directed to be borne by the persons at whose instance even such exceptions are allowed.
(f)The 'Polluter Pays Principle' should be applied in such rare and exceptional circumstances.
Keeping the above principles in mind, when the issue on hand is dealt with, we are convinced that a direction to NHAI to construct an over bridge covering the entire 530 metres road across the Narikulam Tank would solve the crisis.
38.When such an approach is made to the present issue, we feel that by directing the NHAI to construct an over bridge covering the entire 530m road across the Narikulam tank would solve the crisis. Since in the considered view of the NHAI four lane project has to necessarily be laid across the Narikulam tank and laying of such a road by filling up the tank to an extent of nearly 3 hectares i.e., 7.79% of the water body cannot be permitted as that would, in course of time, obliterate the water body. In the first instance that would cut the water body into two. Though by providing two nos. of bridges of 10m wide, it may be stated that it would provide for movement of water in between the two parts of the tank, when once the water body is cut into two halves, it will be difficult to state in definite terms that it would save the water body without any serious destruction. When once the natural water body is obstructed by cutting it into two halves, it is very difficult to anticipate all future deteriorations and provide required safeguards to meet such contingencies. Therefore the safe course would be to maintain the natural set up without any obstruction in order to ensure that the natural environment is protected though may be at the cost of a higher investment than resorting to any other obstructive course and thereby provide scope for total obliteration.
39.We are therefore convinced that the safer course would be to direct the NHAI to go in for a full length over bridge arrangement even if such a plan would result in higher cost investment. We are not therefore inclined to even accept any other suggestions on behalf of the NHAI such as providing few more bridges of 10m width, in as much as, in our considered opinion, provision of even such more number of bridges may not save the water body in the longer run. It is not only the 200 ayacutdars who alone would be affected in the event of any destruction to the water body. Having regard to its locational advantage which acts as storage point due to natural gradient level from west to east directions, it can capture the rain water and at the same time would act as an embankment to the percolation of saline sea water towards the landward side, which advantage will also be put to serious peril. We are also convinced that in the event of laying of a road on the water body to a full length of 530 metres, there is every chance of the AQUIFERS getting seriously impaired which can never be restored by merely deepening the lake."
(emphasis supplied)
52. Applying the same yardsticks in the instant case, we are of the firm view that it would be in public interest to have the option to the authorities to adopt the option 'C', only by constructing over bridges and then to lay the road across the tanks on the bridges.
53. But, strangely, though there are two Reports of the Experts Committees, the National Highways Authority, viz., the Chairman of the National Highways Authority, has not passed any order deciding to adopt any one of the three modes suggested by the Committee. Instead, from the records, it could be seen that the impugned order, adopting the option "C" has been passed only by the Project Director. There is no controversy before us that the Project Director is not the Competent Authority, since the Chairman alone is the Competent Authority, which is evident from the information furnished to the petitioners under the Right to Information Act, 2005, wherein, the National Highways Authority has clearly stated that the Competent Authority to decide such issues is only the Chairman. After these writ petitions were reserved for orders, the learned counsel for the National Highways Authority of India has produced the proceedings of the National Highways Authority of India, Tamil Nadu Division, in NHAI/BOT/11012/49/2005. It is stated that based on the Report of the Committee of Experts appointed by the National Highways Authority of India, realignment was proposed and the same was submitted for approval by the National Highways Authority of India. The said proceedings contains an Office Note put- up by the General Manager of Tamil Nadu Division, dated 27.07.2010. In the said Office Note, it could be seen that he has suggested for realignment of the road across the tanks by constructing culverts and minor bridges and not by constructing over-bridges. The Office Note also shows some initials by some officials. Though it is claimed by the learned counsel that one such initial was made by the Chairman of the National Highways Authority of India, we are at a loss to find any such thing in the said Office Note. Further, the Chairman of NHAI, who is the competent authority, has not at all considered the materials placed before him and he has not concluded that option 'C' is inevitable. Even the Office Note nowhere makes a mention that option 'C' is inevitable.
54. The next limb of argument of the learned counsel for the petitioners is that as per the notification issued under the Environment (Protection) Act, 1986, environmental clearance was not obtained for changed alignment. The learned counsel for the petitioners would bring to the notice of this Court, the notification of the Government in S.O.No.1737(E), dated 11.10.2007 issued in exercise of the power conferred under Section (1) and Clause (v) of Sub-Section (2) of the Act, wherein, it is stated that when there is any re-alignment proposal, as per clause 7(f) of EIA Notification, 2006, the environmental clearance is required. But, no such environmental clearance has been obtained by the National Highways Authority to have the re-alignment by adopting the option "C".
55.The learned Assistant Solicitor General of India has produced a communication of the Government of India, Ministry of Environment and Forests in F.No.3-88/2010-IA-III, dated 25.10.2010, wherein ,the Central Government has clearly stated as follows;-
"The Ministry is not aware of any re-alignment proposal mentioned in the Writ Petition. As per 7(f) of EIA Notification, 2006, as amended vide S.O.No.1737(E), dated 11.10.2007, following requires environmental clearance; I. New National Highways and II. Expansion of National Highways greater than 30 km involving additional right or way (Row) greater than 20m involving land acquisition."
The letter further proceeds as follows-
"However, whether the EC already granted to this project needs to be amended would depend on the details of the re-alignment proposed to be done, its environmental impacts and possible mitigation etc."
56. This goes to show that absolutely there is no environmental clearance for adopting the option "C", as suggested by the Experts to lay the road across these three tanks. The learned Additional Advocate General would submit that the National Highways Authority would approach the Ministry of Environment and Forests and obtain necessary environmental clearance in due course.
57. From the above submissions and from the above letter of the Ministry of Environment, it is crystal clear that unless such environmental clearance is issued by the Central Government, the road cannot be laid at all across the tanks in question. But, it is stated by the learned Additional Advocate General that already major part of the work has been completed. We are surprised to hear this kind of statement from the National Highways Authority. It is not known as to how the National Highways Authority can proceed to implement the project to lay the road across these three tanks without obtaining such environmental clearance from the Ministry of Environment. On this ground also, the proposal needs to be interfered with.
58. From the foregoing discussions, we have to make the following summing up:
(i)Insofar as options 'A' and 'B', as suggested by the Expert Committees, the National Highways Authority of India is at liberty to adopt any one.
(ii)In the event, the competent authority of the National Highways Authority of India, namely the Chairman, after having regard to all the facts and circumstances, comes to the indispensable conclusion that adopting option 'C' is inevitable, necessary detailed orders may have to be issued by the competent authority to adopt option 'C'.
(iii)If option 'C' is to be adopted by the National Highways Authority of India, it is absolutely necessary to construct over-bridges, as suggested by the Committees, to lay road upon the same, across the tanks in question.
(iv)Constructing culverts and minor bridges across the tanks shall not satisfy the requirements and, therefore, the same shall not be approved.
(v)To adopt any one of the options, namely options 'A', 'B' or 'C', environmental clearance should be obtained from the Central Government as per the Government of India Notification in S.O.No.1737(E), dated 11.10.2007.
Without such clearance, there shall be no laying of road across the tanks.
(vi)The contention that already 85% of the work has been completed across the tanks cannot be appreciated and the same cannot be accepted also, in view of the fact that in the absence of any environmental clearance and approval by the Chairman of the National Highways Authority of India regarding the alignment across the tanks, the project, as per the proposed alignment, should not have been implemented at any cost. Possible incurring of additional costs for construction of over-bridges shall not be a factor to permit the National Highways Authority of India to lay road across the tanks by constructing culverts and minor bridges.
59.In the result, the writ petitions are allowed and the impugned order is set aside in the following terms:
(i)The National Highways Authority of India is at liberty to lay road as per option 'A' or option 'B' as suggested by the Expert Committees.
(ii)In the event, the competent authority of the National Highways Authority of India comes to the indispensable conclusion that either option 'A' or option 'B' is not feasible and option 'C' is inevitable, necessary detailed orders, giving reasons for such conclusion, shall be passed.
(iii)If option 'C' is so adopted by the National Highways Authority of India as inevitable, it shall be absolutely necessary for the National Highways Authority of India to construct over-bridges across the tanks in question, as suggested by the Committees and then to lay the road upon the same.
(iv)Construction of culverts and minor bridges across the tanks shall not satisfy the requirements and, therefore, the same shall not be approved by the National Highways Authority of India.
(v)Before adopting any one of the options, namely options 'A', 'B' or 'C', environmental clearance should be obtained from the Central Government as per the Government of India Notification in S.O.No.1737(E), dated 11.10.2007 and without such clearance, there shall be no laying of road across the tanks in question.
There will be no order as to costs. Connected miscellaneous petitions are closed.
NB/gb To
1.The Secretary to Central Government, Union of India, New Delhi.
2.The National Highways Authority of India, Project Director, Karur.
3.The District Collector, Cantonment, Trichy I, Tamil Nadu.
4.The Chief Engineer, PWD, Water Resource Organization, Subramaniapuam Trichy I, Tamil Nadu.
5.The District Revenue Officer, Competent Authority, Authorized Officer of NHAI, Trichy, Tamil Nadu.
6.The District Collector, The State of Tamil Nadu, Tiruchirappalli District, Tiruchirappalli.
7.The District Revenue Officer cum Competent Authority, National Highways (Land Acquisition), Collectorate, Tiruchirappalli I.
8.The Project Director, Officer of the Project Director, National Highways Authority of India, (NH-67), 10, Kamadhenu Nagar, Karur 639 001.
9.The Chief Engineer, Public Works Department, (Water Resource Organization), Subramaniapuram, Tiruchirappalli 620 020.