Madras High Court
Conservation Of Nature Trust vs The Director on 20 May, 2010
Author: F.M.Ibrahim Kalifulla
Bench: F.M.Ibrahim Kalifulla, K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/05/2010
CORAM
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
and
THE HONOURABLE MS.JUSTICE K.B.K.VASUKI
W.P.(MD)No.11850 of 2009
W.P.(MD)No.4406 of 2009
and
W.P.(MD)No.3913 of 2009
and
M.P.(MD)Nos.1,1, 2,2 & 2 of 2009
W.P.(MD)No.11850 of 2009
1. Conservation of Nature Trust,
Represented by its Chairman,
Dr.R.S.Lal Mohan.
2. Kanyakumari District Boomi Pathukappu
Sanga Koottamaipu (Reg.No.37/88),
Represented by its President Mr.Padmadhas.
3. Regulator Channel Water User's Association
Represented by its Secretary S.Narayanasamy. .. Petitioner
vs
1. The Director,
National Highways Authority of India,
G5 and 6, Sector 10,
Dwaraka, New Delhi.
2. The Project Director,
National Highways Authority of India,
NHA-14, Kamaraju Nagar 1st Street,
Travellers Bungalow Road,
Valliyoor, Tirunelveli-627 117.
3. The District Collector,
Kanyakumari District.
4. The Environmental Engineer,
Pollution Control Board,
Kanyakumari District. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus forbearing the respondents from laying any road
in Narikulam irrigation tank comprised in Re-Survey No.351, having an extent of
27.96.5 hectares of land equivalent to 73 acres of water spread area situated in
Kanyakumari Village, Agastheeswaram Taluk, Kanyakumari district, detrimental to
the ecology and environment.
W.P.(MD)No.4406 of 2009
Mahadanapuram Grama Samudayam,
Mahadanapuram Post,
Kanyakumari District,
Rep. by its Managing Trustee Mr.V.Gopalakrishnan .. Petitioner
vs
1. The Collector,
Kanyakumari District.
2. The District Revenue Officer,
Kanyakumari District.
3. The Revenue Divisional Officer,
Kanyakumari District.
4. The Tahsildar,
Agasteeswaram Taluk,
Kanyakumari District.
5. Project Director & PIU Kanyakumari,
NHA-14, Kamaraju Nagar 1st Street,
Travellers Bungalow Road,
Valliyoor, Tirunelveli-627 117. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus forbearing the respondents in any manner entering
for the purpose of laying road or for any purpose in the land in Survey No.1531
(New Survey No.351) Mahadhanapuram Village, Agasteeswaram Taluk, Kanyakumari
District.
!For Petitioners ... Mr.T.Arul
in W.P.(MD)11850/09
For Petitioner ... Mr.K.Srinivasan
in W.P.(MD)4406/09
^For Respondents 1 & 2 ... Dr.R.Rajagopal
in W.P.(MD)11850/09 and
R5 in W.P.(MD)4406/09
For Respondent 3 ... Mr.R.Janaki Ramulu,
in W.P.(MD)11850/09 and S.G.P.
R1 to R4 in W.P.(MD)4406/09
For Respondent 4 ... Mr.R.Ramanlal,
in W.P.11850/09
- - - - -
:COMMON ORDER
F.M.IBRAHIM KALIFULLA,J.
W.P.(MD)Nos.3913 and 4406 of 2009 have been preferred by Mahadanapuram Grama Samudayam, represented by its Managing Trustee Mr.V.Gopalakrishnan, hereinafter, referred to as Mahadanapuram Grama Samudayam. W.P.(MD)No.11850 of 2009, is a Public Interest Litigation and has been preferred by three so called public spirited institutions.
2.Writ Petition in W.P.(MD)No.3913 of 2009, has been preferred by Mahadanapuram Grama Samudayam challenging the order of the District Revenue Officer, Kanyakumari dated 22.04.2009, by which the earlier order of the Assistant Director of Settlement and Survey, Madurai dated, 28.03.1994, was set aside in order to maintain the classified water body called Narikulam Tank in Agastheeswaram Taluk, situated in old Survey No.1531 (New Survey No.351) in an extent of 27.96.5 hectares recorded as 'Kulam Poramboke' in the Re-settlement Register and by rejecting the application of the Mahadanapuram Grama Samudayam dated 12.05.2008, for implementing the order of the Assistant Director of Settlement dated 28.03.94.
3.In W.P.(MD)No.4406 of 2009, the very same Mahadanapuram Grama Samudayam seeks for issuance of a writ of Mandamus to direct the respondents from in any manner entering into the Narikulam Tank in S.No.1531 (New S.No.351) of Mahadhanapuram Village for the purpose of laying of four lane road by the Project Director of National Highways Authority of India.
4.in the Public Interest Litigation in W.P.(MD)No.11850 of 2009 also the petitioners pray for the issuance of a writ of Mandamus forbearing the respondents from laying any road in Narikulam irrigation tank comprised in Re- survey No.351 of Agastheeswaram Taluk, Kanyakumari District.
5.The grievance of the Mahadanapuram Grama Samudayam in W.P.(MD)No.3913 of 2009 is personal in as much as its main grievance is as regards the cancellation of the order of the Assistant Director of Settlement and Survey, Madurai dated 28.03.1994, in and by which there was a direction to issue patta in favour of Mahadanapuram Grama Samudayam in an extent of 27.96.5 in S.No.1531 under Sections 9(1) and 17 of Tamil Nadu (Transferred Territory) Ryotwari Settlement Act, 1964 (T.N.Act30/1964). As far as the challenge made to the order of the District Revenue Officer, Kanyakumari District, dated 22.04.2009, in proceedings No.M.4/48631/2008 is concerned, the same can be independently examined while dealing with the said writ petition on merits by the appropriate learned single Judge.
6.However, while challenging the order of the second respondent dated 22.04.2009, an interim order came to be passed by which the order of the second respondent dated 22.04.2009, was stayed by an order dated 30.04.2009. Subsequently, when the very same petitioner Mahadanapuram Grama Samudayam sought for issuance of Mandamus to forbear the respondents from laying any road in Narikulam Tank, the interim order came to be passed to the following effect:
"It is contended by the learned counsel for the petitioner that on the basis of the order of DRO classifying the land as Kulam Poramboke, the respondents are trying to lay a road in that land and they have no right to do so. As the order of the DRO is challenged in WP(MD)No.3930 of 2009 and interim stay was granted, I am inclined to grant an order of injunction as prayed for."
7.The injunction prayed for was to restrain the respondents from in any manner laying any road in the land in S.No.1531 (R.S.No.351) in Mahadanapuram Village in Kanyakumari District pending disposal of the writ petition in W.P.(MD)No.4406 of 2009. Therefore, the said writ petition was also tagged along with W.P.(MD)No.4406 of 2009. Since the prayer in W.P.(MD)No.11850 of 2009, is also to restrain the respondents from laying any road in R.S.No.351 in respect of the very same Narikulam Tank, the said writ petition was also posted along with W.P.(MD)No.4406 of 2009.
8.At the very outset, we wish to make it clear that at present we only deal with the issue as to whether the attempt of the Project Director of National Highways Authority of India to lay a road across the Narikulam Tank can be permitted in public interest. As far as the claim of the Mahadanapuram Grama Samudayam of its rights in respect of the Narikulam Tank in S.No.1531(R.S.No.351) of Mahadanapuram Village based on an earlier order of the Assistant Director of Settlement and Survey, Madurai dated 28.03.1994, and its challenge to the order of the DRO dated 22.04.2009, it can be independently dealt with in W.P.(MD)No.3913 of 2009, by the appropriate learned single Judge. Therefore, the said writ petition is delinked from this proceedings and the Registry is directed to post the writ petition in the usual course.
9.Having considered the challenge made in W.P.(MD)Nos.4406 and 11850 of 2009, the brief facts which are required to be stated are that the Narikulam Tank as per the Memorial maintained in the revenue records discloses that the said tank is situated about 3.5 kilometres north of No.1 Kanyakumari village in the Agestheeswaram taluk. The source of supply to the said tank is from its free basin besides the surplus of two upper tanks namely Bhagavathi Vinayagar Kulam and Perumal Kulam as well as N.P.channel. The bund of the tank is 1090 meters long and there is no vegetation on the bund. The registered ayacut for the said water body is 51.885 hectares for single crop as well as double crop respectively. The average cultivation of single crop is stated to be in 41.51.0 hectares and double crop is of 51.88.5 hectares. The area of the tank is 279,000 square meter. The tank is approximately 965 meters long, 360 meters wide and the total extent of the tank is 27.96.5 hectares.
10.The Narikulam tank falls within the Panagudi-Kanniyakumari stretch where the work of 4/6 laning road was being laid by the National Highways Authority of India hereinafter called as NHAI. According to the NHAI, the said Narikulam tank having been classified as Government Poramboke and in the possession of Executive Engineer, WRO, PWD, Kodayar Basin Division, Nagercoil to maintain and administer the tank and that the said lands required for laying the road was to be transferred in favour of the NHAI by way of alienation process. It is further contended that the existing alignment of NH-7 from km221/0 to km231/600 is passing through the villages enroute such as Karungulam, Levinjipuram, Anjugramam, Leepuram, Paulkulam and Kanniyakumari with the existing right of way varying from 15m to 18m only and buildings abutting on either side and that in order to avoid demolition of habitation buildings, it was proposed to provide bypasses for the above places which passes through the wet lands in a straight alignment for a width of 60m before crossing the Narikulam tank.
11.It is further contended that it was unavoidable as per the DPR plan approved by the Government of India and that out of the total extent of 27.96.5 hectares of tank land, an extent of 3.0 hectares are subjected to alienation process for the proposed 4-lane project of North-South Corridor. It is also contended that the capacity of the tank will not be affected on that account as it has been proposed to deepen the tank bed and raise the height of the bund due to the passing of the road through this tank. It is also stated that inside the tank, it is proposed to provide two balancing minor bridges each of 10m width to allow water to pass from one side to other. It is also stated that a sum of Rs.95.18 lakhs has been sanctioned consisting of 6 nos. of estimates including the restoration of Narikulam tank in R.S.No.351 of Kaniyakumari village to bring the tank to its original capacity by deepening the fore-shore area of the tank for maintaining the actual capacity which would be affected due to the passing of the National Highway alignment and also to strengthen the tank bund. The sanctioned amount pertaining to Narikulam tank alone was stated to be Rupees thirty lakhs which was also remitted along with a letter dated 12.07.2007, by the NHAI.
12.It is further stated that the Executive Engineer WRO, PWD, Kodayar Basin Division, Nagercoil through his letter dated 07.05.2009, stated that the work was also completed and the total amount utilised for the said purpose was Rs.22,74,976/- and necessary utilization certificate was also stated to have been issued. It is contended that the project being a national level project and the work having been commenced already any further obstruction with the work will cause serious prejudice to the public at large.
13.While that being the stand of the NHAI, the first petitioner in W.P.(MD)No.11850 of 2009, represented by its Chairman one Dr.R.S.Lal Mohan who is stated to be former Principal Scientist of Indian Council of Agricultural Research in his affidavit sworn to in support of the said writ petition apart from referring to his credentials has claimed that he had involved himself in various projects for protecting and conserving the nature and natural resources, that the sole aim of the petitioner's association is to protect the environment and in particular the important water bodies such as Narikulam which cannot be allowed to be obliterated by causing any damage to the said water body. While detailing the geographical location of the said tank, the deponent by referring to the total extent and coverage of the tank has stated that the said tank is one of the biggest water bodies having large water spread area to conserve water for one calendar year compared to other minor water bodies in the district. He would state that the said tank caters to the needs of three Panchayats comprising nearly 10 villages and the water is extracted for drinking purposes only from that tank. He would also state that it is the major irrigation tank in Kanyakumari district covering ayacut area of not less than 240 acres of paddy cultivation and that the said water body also maintains the ground water source in that area.
14.He would claim that the water table and the aquifers within the vicinity of 6 kilometres radius exist due to the presence of the tank and it is situated in an important geographical location in safeguarding the ecology and environment of that part of the district.
15.He would also state that due to the presence of the western ghats in the Kanyakumari district, the landscape is a fertile sloping land from the western ghats towards the sea covering a distance of about 35 kilometres and that due to the steep west east gradient the rain water flows faster and joins the sea. According to the deponent, to check the flow of rain water into the sea, the Pandya, Chola and Chera kings including Naiker kings of yesteryears who ruled the area 1500 years before had a wider vision and made tanks of various size as water harvesting systems to capture the rain water and use it for irrigation and that after the said era no new water bodies were created while attempts were calculatively made only to obliterate the existing water bodies. He also pointed out that Narikulam tank is situated near Kanyakumari sea coast within three kilometre radius from the sea and that because of the peculiar topography the land mass in this peninsular area is very meager and the storage of water is therefore of much significance in the particular landscape where the tank is situated.
16.He also pointed out that the presence of the tank also serves as an embankment of the percolation of saline sea water towards the landward side, in the absence of which the saline sea water would seep through the land. It is also contended that since the tank is situated 60 to 50 feet above the sea level the fresh ground water from the higher plains would also flow to the lower level and thereby the surrounding coastal villages will get fresh water and the incursion of salinity is prevented.
17.It is further pointed out that existence of major water body like Narikulam serves as a protected fresh water storage facility for the villages surrounding that area. It is also stated that agricultural operation being the backbone of Kanyakumari district, the ponds and other water bodies serve as essential ingredients for recharging the aquifers, serves as the buffer zones during floods and thereby serves the inhabitants from draughts and moderating the climate during summer. It is also claimed that as a fertile rice producing fields, it is instrumental in providing habitants with the drinking water and also keeping the aesthetic beauty of the district.
18.By referring to 1962 census of Kanyakumari District, the deponent would contend that the district had more than 3500 tanks and within a period of 40 years about 1000 tanks were obliterated and as per 1998 census the number of existing tanks are 2447. By referring to the paddy production in the district, he pointed out that the production capacity which was 3.2 lakhs metric tones in 1950 had come down to 1.2 lakh metric tones in 2008 and that the area of paddy cultivation has come down from 53,034 hectares in 1975 to 22,000 hectares in 2008 and the main water table has gone down from 50 feet to 200 feet.
19.Reliance has also been placed upon the report of detailed project report of one Engineer by name M.Ramasamy to the project report of NHAI, who in his report after conducting a detailed study and spot inspection suggested a slight modification to the original proposal without disturbing the Narikulam tank which was also favourably considered by the then Project Director of NHAI who in his communication dated 17.12.2004, to the Superintending Engineer, Tirunelveli forwarded the substance of the report of Mr.M.Ramasamy for necessary action. Based on the above averments, the petitioner in W.P.(MB)NO.11850 of 2009 would contend that the respondents should be prevented from proceedings with the idea of laying the road by obstructing the water tank Narikulam to the extent of 540m of road which would in course of time obliterate the tank and consequently the agricultural operations depending upon the tank would be seriously affected.
20.Mr.K.Srinivasan, learned counsel appearing for the petitioner in W.P.(MD)No.4406 of 2009 and Mr.T.Arul, learned counsel appearing for the petitioners in W.P.(MD)No.11850 of 2009 in their submissions contended that having regard to the serious environmental impact that would be caused by the laying of the road across the Narikulam tank and in the light of the various decisions of this Court as well as the Hon'ble Supreme Court such a step at the instance of the NHAI should be prevented and instead the Project Director should be directed to resort to another alternative route and thereby protect the water body without any hindrance.
21.In support of their submissions, they placed reliance upon the Division Bench decisions of this Court as well as Hon'ble Supreme Court reported in 2010 Writ L.R.113 (T.S.Senthil Kumar Vs. The Government of Tamil Nadu & Others), (2008) 7 MLJ 876 (K.Balamurugan Vs. State of Tamil Nadu), AIR 2001 SC 3215 (Hinch Lal Tiwari Vs. Kamala Devi), (2007) 1 MLJ 124 (SC) (Susetha Vs. State of Tamil Nadu), (2008) 1 MLJ 997 (SC) (T.N.Godavarman Thirumulpad Vs. Union of India, (1999) 2 SCC 718 (A.P.Pollution Control Board Vs. Prof.M.V.Nayudu) and (1997) 3 SCC 715 (M.C.Mehta Vs. Union of India)
22.Having heard the learned counsel for the respective parties and having perused the map showing the Narikulam tank and the proposed four lane road across the tank as well as the sketch disclosing the longitudinal section in the Narikulam tank location with the cross section of the two proposed minor bridges in the said tank and the other details about the area and the total area of the Narikulam tank, the ayakut details and other particulars we find that the proposed four lane road which cuts across the Narikulam tank will virtually cut the tank into two halves. In order to get a clear picture about the proposed four lane road across the tank, we deem it appropriate to annexe the above referred to map and the sketch disclosing the longitudinal section of the proposed road as Annexures 1 & 2 to our order.
23.To recapitulate the nature of the road construction to be made, if we note down the details, we find that of the total tank area of 279,000 sq.mts, the proposed construction of the road would result in capacity reduction in the tank area to an extent of 59,540.20 cubic meters. The length of the road is 550m while the breath of it would be 60m. The net length of the road to be constructed would be 530m. The total area of tank bed which would be used for the construction of the road would be 21,730 sq.mts which will be 7.79% of the tank area. The road has been planned to be able to embankment in the tank area which is trapezoidal in shape, 41m wide at bottom and 25m at the top of embankment. Embankment to be of 4m (approx.) high above the general tank bed level (existing) and 1.37m above the maximum water level.
24.Admittedly as the road would be dividing the tank into two, it is proposed to provide two water ways across the road connecting the two parts of the tank each of 10m wide. The consequent reduction in the capacity of the tank being calculated at 59,540.20 Cu.m and in order to compensate the reduction in tank volume caused by the road construction, the tank bed is stated to have been deepened by 0.50m and thereby provide for increase in the capacity of the tank to 128,635 Cu.m. According to the NHAI's calculation by providing for such increase in the tank capacity by deepening the tank bed whatever loss that would be caused by laying of road across the tank would be sufficiently offset.
25.On the above basis, the learned counsel for NHAI contended that when NHAI has planned to develop the existing two lane into four lane considering the enormous increase in the mobility of heavy cargo vehicular traffic the public project should not be allowed to be stalled for the benefit of few. It is contended that the PWD of the State Government has taken care of the tank by attending to its day to day maintenance, that since the water storage capacity has been increased, the passing of NH-7 road through Narikulam Tank will not affect the irrigation of the cultivable lands as alleged by the petitioners. It is also contended that NHAI spent more than Rs.22 lakhs for deepening of the tank and also protect the water supply inhabitants of the area and therefore the petitioner's grievance have no basis. On the other hand, it was contended that if the project is stalled, the same would cause serious prejudice to the interest of the public at large.
26.Even while considering such contentions raised on behalf of the NHAI, we are of the considered opinion that having regard to the law laid down by the Hon'ble Supreme Court which has been followed by the Division Bench of our High Court, the Court should be slow in accepting such a stand raised on behalf of the NHAI when it comes to the question of affecting or likely to cause any serious impact on the natural resources in particular such large water bodies. Having noted the extent of the area of water storage capacity of Narikulam tank which is 965 meters long and 360 meters width covering an area of 27.96.5 hectares, it will have to be held that when the project has been made to cut the tank into two, the endeavour should be to find out whether instead of allowing such a drastic step any other alternative method can be found out by which while permitting the NHAI to proceed with the project of laying the road across the tank, the same can be done without in any manner affecting the present status of the water body or with any least disturbance.
27.With that view, when we consider, we find that by directing the NHAI to construct an over bridge for the entire stretch of 530m, the present problem of causing any destruction to the water body can be completely avoided. In that respect, the only contention of the the NHAI was that such a proposal would result in an additional cost of few crores. If by spending few more crores the damage that would be caused to a prominent water body can be avoided, in our view, it would be just and proper that NHAI should not mind spending few more crores than to divide the water body into two which, in our opinion, would be a destructive one and cannot be permitted to be made in the light of the various principles laid down by the Hon'ble Supreme Court in various decisions.
28.To support our conclusions, we feel it appropriate to refer to certain principles set down by the Hon'ble Supreme Court which were followed by the Division Bench of our High Court. In the decision reported in (1997) 3 SCC 715 (M.C.Mehta Vs. Union of India) the Hon'ble Supreme Court have stressed the importance of environmental protection and the preventive measures to be take in maintaining such surroundings in the following paragraphs viz.:
"6.....The functioning of ecosystems and the status of environment cannot be the same in the country. Preventive measures have to be taken keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration. Badkhal and Surajkund lakes are popular tourist resorts almost next door to the capital city of Delhi. We have to record the Inspection Report in respect of these lakes by the National Environmental Engineering Research Institute (NEERI) dated 20.04.1996 indicating the surroundings, geological features, land use and soil types and archaeological significance of the areas surrounding the lakes. According to the report Surajkund lake impounds water from rain and natural springs. Badkhal Lake is an impoundment formed due to the construction of an eastern dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types as explained in the report show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill area feed these water bodies during rainy season. Large scale construction in the vicinity of these tourist resorts may disturb the rain water drains which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed.
7. The two expert opinions on the record - by the Central Pollution Control Board and by the NEERI - leave no doubt on our mind that the large-scale construction activity in the close vicinity of the two lakes is bound to cause adverse impact on the local ecology. NEERI has recommended green belt at one km radius all around the two lakes. Annexures A and B, however, show that the area within the green belt is much lesser than one km radius as suggested by the NEERI.
* * * * *
10.....The "Precautionary Principle" has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes."
(Emphasis added)
29.In the decision reported in (1999) 2 SCC 718 (A.P.Pollution Control Board Vs. Prof.M.V.Nayudu) the Hon'ble Supreme Court have made a specific reference to Principle No.15 of the U.N.General Assembly Resolution on World Charter for Nature, 1982, where the emphasis shifted to the precautionary principle which was reiterated in the Rio Conference of 1992 in its Principle 15, which has also made a reference to an article by Charmian Barton which has been set out in paragraph 33 & 34 of the decision which are relevant for our present purpose, which can be usefully referred to:
"33......Principle 15.-- In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing cost- effective measures to prevent environmental degradation.
34. In regard to the cause for the emergence of this principle, Charmian Barton, in the article earlier referred to in Vol.22 Harv.Envtt.L.Rev.(1998),P.509 at P.547 says:
"There is nothing to prevent decision-makers from assessing the record and concluding that there is inadequate information on which to reach a determination. If it is not possible to make a decision with 'some' confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through judicial and legislative means is necessary."
In other words, the inadequacies of science is the real basis that has led to the precautionary principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
* * * * *
38. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats 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. (See Report of Dr Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 03.04.1998, para 61)" (Emphasis added)
30.In the decision reported in (2001) 6 SCC 496 (Hinch Lal Tiwari Vs. Kamala Devi) the Hon'ble Supreme Court stressed the need to maintain the material resource of the community like forests, tanks, ponds, hillock, mountain etc., which are stated to be nature's bounty. Paragraph 13 is relevant for our purpose which reads as under:
"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc., are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites."
(Emphasis added)
31.In the decision reported in AIR 1996 SC 2715 (Vellore Citizents' Welfare Forum Vs. Union of India) in paragraphs 11 and 12 the Hon'ble Supreme Court has concretized the vital principles of Sustained Development including the 'Precautionary Principle' and the 'Polluter Pays Principle'. The Hon'ble Supreme Court made it clear that it is for the persons who want to carry on any activities which would endanger the environment should be made liable to make good the loss. The Court held as under in paragraph 11:
"11......The Precautionary Principle in the context of municipal law means:
(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation."
32.In the decision reported in (2006) 3 MLJ 201 (SC) (Intellectuals Forum, Tirupathi Vs. State of A.P.) the Hon'ble Supreme Court once again reiterated the constitutional mandate as enshrined under Article 48-A and 51-A, wherein the State is mandatorily bound to protect and improve the natural environment including forests, lakes, wildlife and to have compassion for living creatures. The Hon'ble Supreme Court gave thrust to the accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well-being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that the present as well as the future generations are ensured of its maintenance and protection.
33.In an earlier decision of the Hon'ble Supreme Court reported in (1991) 2 SCC 539 (Dahanu Taluka Environment Protection Group Vs. Bombay Suburban Electricity Supply Co.Ltd.) the Hon'ble Supreme Court expressed its views as under in paragraph 84:
"84.The world has reached a level of growth in the 21st century as never before envisaged. While the crisis of economic growth still on, the key question which often arises and the Courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of humanity and future generations could be ignored in the grab of economic growth or compelling human necessity...."
34.The above referred to decisions have been extensively quoted by the Division Bench of our High Court in the decision reported in (2008) 7 MLJ 876 (K.Balamurugan Vs. State of Tamil Nadu) and the Division Bench has culled out the principles from the various decisions of the Hon'ble Supreme Court in paragraph 36 which is to the following effect:
"36. On an analysis made from the above decisions, we find that the following principles have to be kept in mind while dealing with the issue relating to environmental protection viz.,
(i) Natural resources which includes lakes, forests, rivers, wildlife are held by the State as a trustee of the public and can be disposed of only in a manner that is consistent with the nature of such a trust.
(ii) The public trust doctrine is more than an affirmation of State power to use public property for public purposes.
(iii) The Courts when confronted with a situation where violation of such public trust doctrine is put against the State, the Courts while scrutinising such actions of the State, have to make a distinction between the State's general obligation to act for the public benefit, and the special obligation which is entrusted with it as a trustee of such public resources.
(iv) The three types of restrictions on Governmental authority as stated by Prof.Sax, assumes significance which are as follows:
(a) The property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
(b) The property may not be sold, even for fair cash equivalent;
(c) The property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources.
(v) The Court has to strike a balance between sustainable development and environment protection."
35.In this context, it will be appropriate to refer to the notification of the Union Government on Environmental Impact Assessment. The first one was dated 27.01.1994, and the subsequent notification was published on 14.09.2006. In the 1994 Notification the list of jobs that required environmental clearance from the Central Government have been set out in the Schedule 1 of the Notification and under Sl.No.2(i) it has been listed. In paragraph 1 of the Notification dated 27.01.1994, it has been specifically provided that by virtue of Section 3(2) (i) to (v) of the Environment (Protection) Act, 1986 read with the relevant rules on and from the date of publication of the said notification no new projects listed in Schedule 1 to the notification can be undertaken in any part of India unless it has been accorded environmental clearance from the Central Government. In Serial No.21 of Schedule-I, Highway Projects is one of the items for which such clearance is mandatorily required. In our considered opinion, the 4/6 lane projects undertaken by the NHAI cannot fall under any of the exceptional categories of the said item.
36.In the subsequent notification dated 14.09.2006, it is specifically mandated that all new projects or activities listed in the schedule to the Notification requires prior environmental clearance from the concerned regulatory authority. In the list of projects required prior environmental clearance, under clause 7(f) both new National Highway and expansion of National Highways greater than 30 Km, involving additional right of way greater than 20m involving land acquisition and passing through more than one State has been set out.
37.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.
40.In this respect, having regard to the various details furnished as regards the location of the water body, the benefits that will be derived by the ayacutdars, the source of water supply to the water body and the claims of the petitioners in W.P.(MD)No.11850/2009 that having regard to the locational advantage of the water body which prevents incursion of salinity to the coastal villages and other benefits namely, serving as buffer zone during floods and thereby saving the inhabitants from droughts and moderating the climate during summer, it is imperative that the said water body is bound to be saved from any major damage being caused to it. We also keep in mind the details placed before us that as between 1962 and 1998 the census of Kanyakumari District, as against 3500 tanks which were existing in the year 1962 and the present figure of 2447, which disclose the obliteration of 1000 tanks in a period of 40 years, in public interest it is the bounden duty of the State to ensure that no further damage is caused to any major tanks such as the Narikulam Tank. The scheduled project of NHAI to lay the road across the Narikulam Tank by filling it up to an extent of 530 metres would, in our view, disturb the aquifers and therefore the same cannot be permitted. It would also affect the natural drainage pattern of the surrounding area which feed the Narikulam Tank and on that ground also the NHAI cannot be permitted to lay the road in the manner in which it is proposed to be done. We are convinced that the laying of the road by the NHAI by filling up the tank will result in and cause irreversible damage to Narikulam Tank. We therefore prefer to err on the side of caution and prevent the activities that would cause such irreversible harm to the prominent water body.
41.Having regard to the above factors prevailing, we are convinced that by directing the NHAI to go in for a full length over bridge to the entire length of 530 metres over Narikulam Tank, the objective of NHAI to continue to maintain its planned project of laying 4/6 Lane Highway Road can be achieved as scheduled and also restrict any damage that may be caused to the water body by laying the pillars alone inside the lake. Even though such a direction may involve a higher cost, in public interest, we feel, this Court is entitled to issue such a direction. In this respect, we wish to refer to the mandate given by the Hon'ble Supreme Court in the well known Vellore Citizens' Case, reported in (1996) 5 SCC 647, wherein, in paragraph 26, the Hon'ble Supreme Court has empowered this Court to issue such directions. The relevant part of such mandate of the Hon'ble Supreme Court is to the following effect.
"26.We have issued comprehensive directions for achieving the end result in this case. It is not necessary for this Court to monitor these matters any further. We are of the view that the Madras High Court would be in a better position to monitor these matters hereinafter. We, therefore, request the Chief Justice of the Madras High Court to constitute a Special Bench "Green Bench" to deal with this case and other environmental matters. We make it clear that it would be open to the Bench to pass any appropriate order/orders keeping in view the directions issued by us. ....."
(Emphasis added) Having regard to such a directives issued by the Hon'ble Supreme Court while requesting the Hon'ble Chief Justice to constitute a "Green Bench", we are of the view that in public interest, with a view to save the prime water body in Kanyakumari District from getting obliterated and also keeping in mind the interest of the future generations for all time to come and in the interest of justice it will be appropriate for NHAI to go in for a full length over bridge for the entire 530 metres of the road to be laid over Narikulam Tank, may be by investing some higher amount and thereby it can implement its scheduled project of laying 4/6 lane road and at the same time save the water body from the chance of getting obliterated in future.
42.We therefore hold that the present proposal of NHAI to lay four lane road across the Narikulam tank as planned and shown in Annexure 1 & 2 cannot be permitted. We also hold that NHAI need not have to resort to any alternate route for laying the road as prayed for by the petitioners. We further direct the NHAI to proceed with its plan of laying the road as per its original decision but we only direct that at the point of Narikulam Tank (Water Body) for an extent of 530m it shall construct a full length over bridge and thereby continue to maintain the water body in its original form except the provision of pillars to be laid inside the water body for the construction of the over bridge.
43.The writ petitions are ordered with the above directions to the NHAI. The interim orders shall stand modified in accordance with the above directions passed in these writ petitions including the interim order dated 30.04.2009 passed in M.P.No.1 of 2009 in W.P.(MD)No.3913 of 2009. W.P.(MD)No.3913 of 2009 shall be de-linked and posted in the usual course before the learned single Judge. Connected miscellaneous petitions are closed. No costs.
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1. The Director, National Highways Authority of India, G5 and 6, Sector 10, Dwaraka, New Delhi.
2. The Project Director, National Highways Authority of India, NHA-14, Kamaraju Nagar 1st Street, Travellers Bungalow Road, Valliyoor, Tirunelveli-627 117.
3. The District Collector, Kanyakumari District.
4. The Environmental Engineer, Pollution Control Board, Kanyakumari District.
5. The District Revenue Officer, Kanyakumari District.
6. The Revenue Divisional Officer, Kanyakumari District.
7. The Tahsildar, Agasteeswaram Taluk, Kanyakumari District.