Madras High Court
National Highways Authority vs The Secretary To Government on 6 January, 2014
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 06.01.2014 Coram:- The Hon'ble Mr. Justice T.Raja W.P. Nos.1856 to 1858 of 2013 and M.P. Nos.1 to 4/13, 1 to 3/13 and 1 to 3/13 National Highways Authority of India through Project Director, Project Implementation Unit, No.1, Second Floor, Subramaniapuram 3rd Street, Karaikudi-630 002. ... Petitioner in all Writ Petitions vs. The Secretary to Government, Public Works Department, Secretariat, Fort St. George, Chennai 600 009. ... R1 in all WPs The Principal Chief Engineer, Water Resources Department, Chepauk, Chennai 600 005. ... R2 in all WPs The Chief Engineer, Public Works Department, Water Resources Organisation, Madurai Region, Madurai 625 002. ... R3 in Writ Petn No.1856/2013 The Chief Engineer, Public Works Department, Water Resources Organisation, Trichy Region, Trichy 620 020. ... R3 in WPs.1857 and 1858 of 2013. The Assistant Executive Engineer, Public Works Department, Water Resources Organisation, Manimuthar Basin Sub-Division, Karaikudi-630 001. ... R4 in Writ Petn No.1856/2013 The Superintending Engineer, Public Works Department, Water Resources Organisation, Middle Cauvery Basin Circle, Trichy. ... R4 in Writ Petn No.1857/2013 New Kattalai Canal and Aerie Pasana Vivsayigal Welfare Association K.Sathanoor rep. by its Secretary G.Angamuthu, 19/1, West Street, K.Sathanoor and Post, Trichy-21. ... R4 in Writ Petn No.1858/2013 The Assistant Engineer, Public Works Department, Water Resources Organisation, Irrigation Section, Kandanur-630 104. ... R5 in Writ Petn No.1856/2013 The Executive Engineer, Public Works Department, Water Resources Organisation, South Vellar Basin Division, Pudukottai. ... R5 in Writ Petn No.1857/2013 The Assistant Engineer, Public Works Department, Water Resources Organisation, Irrigation Section, Karaikudi-630 001. ... R6 in Writ Petn No.1856/2013 The Assistant Engineer, Public Works Department, Water Resources Organisation, Irrigation Section, Keeranur, Pudukottai District. ... R6 in Writ Petn No.1857/2013 WPs.1856 & 1857/13: Petitions under Article 226 of the Constitution of India for the issuance of writs of certiorarified mandamus as stated therein. WP.1858 of 2013: Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorari as stated therein. For Petitioner in all W.Ps. : Mr.P.Wilson, Senior Counsel for M/s.P.Wilson Associates For Respondents in WP Nos.1856 & 1857/13 and for R1 to R3 in WP.1858 of 2013 : Mr.P.H.Aravindh Pandian, Additional Advocate General, Assisted by Mr.R.Vijayakumar, AGP. For R4 in WP.1858/13: Mr.T.Mohan, for Mr.M.S.Palaniswamy. - - - - - COMMON ORDER
National Highways Authority of India (hereinafter referred to as NHAI) through its Project Director at Karaikudi, has come to this Court by filing,
(i) Writ Petition No.1856/2013, with a prayer to issue a writ of certiorarified mandamus to call for the records relating to the impugned order passed by the 1st respondent/Secretary to Government, Public Works Department (PWD), Secretariat, Fort St. George, Chennai-9, vide his letter No.19148/P1/2012-2, dt. 27.09.2012, quash the same as illegal and consequently, direct the 1st respondent to issue NOC for road construction in Kandakathan Tank, Kovilur-Koneri Tank, Sanakarapuram Tank and Senjainattar Tank situated in Sivagangai District;
(ii) W.P. No.1857/13 - to issue a writ of certiorarified mandamus to call for the records of the 6th respondent/Assistant Engineer, PWD, Water Resources Organisation, Irrigation Section, Keeranur, Pudukottai District, vide his letter No.51/2012/AE(K), dated 09.11.2012, quash the same as illegal and consequently direct the 1st respondent/Secretary to Government to issue NOC for road construction in Kulathur Periyakulam, Keeranur Periyakulam, Thirumayam Thamarai Kanmoi, Thirumayam Vengai Kanmoi, Kundaru River and Vallaru River; and
(iii) W.P. No.1858/13 - to issue a writ of certiorari, calling for the records pertaining to the impugned order passed by the 3rd respondent/Chief Engineer, PWD, Water Resources Organization, Trichy, vide his letter No.412-M/Va.a4/Ko-36-3/2012/NOC-NH, dated 03.10.2012, and to quash the same as illegal.
2. These three writ petitions came to be listed before this Court as Specially Ordered cases. Inasmuch as all the cases being interconnected on claim, counter-claim and core-issues, after joint hearing of the same at length in many intervals, they are disposed of by this Common Order.
3. It is useful to refer, at the first instance, to the case of the petitioner on relevant crucial aspects, in brief, thus,
i) NHAI, after identifying the congested built-up areas in South India particularly in Trichy and neighboring Districts, delving into various aspects to provide free flow of vehicular traffic, be it light, medium or heavy and to ensure safe use of roads by pedestrians so as to prevent occurrence of accidents, and also considering the vital importance of a good road network that would help in booming of development activities in the sphere of movement of people and goods, agriculture, commerce, education, health and social welfare or even maintenance of law & order as well as security, initiated the project of upgradation of 2 lane with paved shoulders of Trichy-Karaikudi Section of National Highways (NH) 210 from Km.10/000 to Km.94/000 including Trichy Bypass on NH-67 from Km.110/016 to Km.135/930 with total length of 107.45 Kms. in the State of Tamil Nadu on BOT (Build, Operate and Transfer) Annuity Basis under National Highways Development Project (NHDP) Phase-III. The said project, initiated in terms of the Central Government's Policy decision to connect States, Cities and Districts, was estimated at the cost of Rs.374 crores and it included construction of a new Bypass to Trichy City branching near Thuvakudi on NH 67 at Km.110/016 intersecting NH 210 in Mathur at Km.124/671 and merging on NH-45B at Km.135/930 near Panchappur besides new bypass for Keeranur, Pudukkottai, Thirumayam and Karaikudi on NH 210. It is the specific case of the petitioner/NHAI that, at the time of filing the writ petitions, 65% of work has been completed with an expenditure of Rs.275 crores. The Project spread over in 3 Districts viz., Trichy, Pudukottai and Sivagangai would connect the following 5 National Highways :
a) Thanjavur - Trichy NH-67
b) Trichy - Madurai NH-45B
c) Trichy - Karur NH-67
d) Trichy-Karaikudi : Karaikudi-Ramnad NH-210
e) Trichy - Dindigul NH-45 In the total length involving 107.45 Kms, 67 Km. is new formation, of which, a length of 5.674 KMs. is passing through water bodies, namely,
(a) Tiruchi Bypass in Trichy District on NH 67 from Km.110/016 to Km.135/930 coming under the jurisdiction of Chief Engineer, PWD, Trichy, is intersected by 5 water bodies called Thuvakudi Paranthankulam, Thuvakudi - Periyakulam, Palaganagudi - Nilamuttikulam, Kumbakudi-Kumbakudi tank, K.Sathanoor-Kannakkankulam and K.Sathanoor-Periakulam;
(b) Thiruchirappalli-Karaikudi Section of NH 210 from Km.10/000 to Km.94/000 in Pudukkottai District under the jurisdiction of the same authority, is intersected by 6 water bodies : Kulathur-Periakulam, Keeranur-Periakulam, Kundaru River, Vellaru River, Thirumayam-Thamaraikanmoi and Thirumayam-Vengaikanmoi; and
(c) Very same Project Stretch in Sivaganga District, coming under the jurisdiction of Chief Engineer, PWD, Madurai Region, is inter-crossed by 4 water bodies by name Kanadukathan Tank, Kovilur-Koneri Tank, Sankarapuram Tank and Senjai-Nattar Tank.
ii) NH-67 - Trichy Bypass Project work involved widening and strengthening of existing 2 lane to 4/6 lane of selected stretches/Corridors of National Highways under NHDP Phase-III, Group-F, Trichirapalli to Karur. The said project road starting from Km 130,000 near Tiruchy of NH-67 would end at Km 218,000 near Karur covering a total length of 88 km and the road would cover Trichy, Pudukottai and Karur. In respect of the said Project, before the commencement of the work, clearance under Environment (Impact) Assessment Notification, 2006, was obtained from the Ministry of Environment and Forest, Government of India, vide No.5-24/2007-IA III (IA-III Division), dated 16.05.2007.
iii) The proposal regarding NH-210/Trichy-Karaikudi Section involved widening and improvement of existing 2 lane to 4/6 lane in the Section of Trichy to Karaikudi from Km.8000 to Km.110000 of NH-210 in the State of Tamil Nadu. Starting from Km.10000 near Trichy and ending at Km.94000 near Karaikudi and covering a length of 82 KM., the project falls mostly in Pudukottai District and remaining in Sivaganga District. As per the proposal, Environmental Clearance for NH-210 Project was granted by the Ministry of Environment and Forest, Government of India, in No.5-99/2007-IA-III (IA-III Division), dated 03.06.2009.
iv) Since the Project Alignment had to pass through the water-bodies in question, by letter dated 17.07.2008, the Project Director, NHAI, requested PWD to transfer the portion of lands falling in the water bodies and also to grant permission to enter into the lands to commence the road work. Consequently, the Chief Engineer, PWD (WRO), Madurai Zone, vide letter, dated 09.01.2010, replied to the first respondent with regard to the alienation of the lands connected to the water-bodies belonging to PWD and stated that, after obtaining necessary Land Plan Schedule and technical calculation sheets, NOC would be granted.
v) While the events stood thus, R-4 in WP.1858/2013-Association represented by its President Mr.Palanisamy, did file WP.MD.No.6262 of 2011 before the Madurai Bench of this Court and they also obtained an order of interim stay against the formation of Bypass road in K.Sathanoor Periakulam and Kannakkankulam including the agricultural nanja lands of K.Sathanoor Village in Trichy District. While disposing of the main writ petition, by order dated 29.09.2011, it was specifically held that insofar as the road passing through Kannakkankulam and Periakulam Tanks is concerned, NHAI shall have to follow the expert opinion of Centre for Water Resources, Anna University, Chennai, as well as the option suggested by R-3/Chief Engineer of the PWD, and so holding, the request of the R-4 Association to change the alignment was rejected. Similar writ petitions filed by the residents of K.Sathnoor before the Madurai Bench met the same fate and it was reiterated that when NHAI chooses a particular alignment and forms a road on the basis of such alignment, such process cannot be interrupted merely because the land of the petitioners therein situate on the route approved in the Plan.
vi) R4 in WP.1856 of 2013/Assistant Executive Engineer, PWD, WRO, Manimutharu Division, sent a proposal on the 'enter upon permission' sought for by NHAI to form road in PWD Tanks, to the Superintending Engineer (PWD, WRO, Sivagangai), who sent the proposal to the Chief Engineer, PWD, vide letter dated 14.06.2012, for grant of NOC, and the said letter was also followed by a clarification letter dated 21.06.2012. The Chief Engineer, PWD, vide letter dated 17.07.2012, forwarded the proposal to the first respondent/Secretary to Government, PWD, Chennai, for according NOC and enter upon permission to the NHAI. But, by impugned letters dated 27.09.2012, 09.11.2012 and 03.10.2012, the respondents rejected the request of the NHAI for issuance of NOC. After applying for NOC from the PWD, massive work was already carried out by the concessionaire by spending crores of rupees, and for the reasons known to the respondents/PWD, through letters dated 12.11.2012, 17.11.2012 and 10.11.2012, issued by R-4 to R-6 in WP.1856 of 2013, NHAI was asked to stop the work in 4 tanks and to make alternative alignments. The timing of the impugned orders and the instructions to halt the works came at a stage beyond any feasibility for reversion as there is no scope for re-alignment. Also, any change in the alignment would certainly result in great hardship and abnormal delay in the timely completion of the project since about 60% of the road construction work was already completed.
In the above background, NHAI, has come up with these three writ petitions.
4. Mr.P.Wilson, learned Senior Counsel appearing for the petitioner/NHAI, would submit that, subsequent to the Notification under Section 3-A of the National Highways Act (in short 'Act) in respect of the project concerning three districts viz., Pudukottai, Sivaganga and Trichy, was issued between 17.07.2010 and 21.04.2011, none of the State Authorities has ever made any objection in terms of Section 3-C of the Act, thus, after the Declaration under Section 3D(1) of the Act between 16.12.2010 and 19.08.2011, the automatic inference would be that the lands in question that would be covered by the Project including the disputed lands acquired in the tanks vest absolutely free from all encumbrances with the Central Government as the owner of the property, therefore, no interference by the State with the Project, that too, when the project passed half the way, can be allowed. In other words, once the land is acquired, there is no need for NHAI, an agency of the Central Government, to seek any permission in respect of the lands or portions connected with the tanks in question. Further elaborating his submission, learned senior counsel added that, even though NHAI, which commenced the project to facilitate 4 laning by forming culverts, bridges, etc. over the acquired lands and has complete authority over execution of the project, considering the fact that portions of some acquired lands included Tanks and water-bodies, with all care and abundant caution to ensure that such water bodies do not undergo any impairment as it would have adverse effects on ecology and water preservation, and also in consonance with public doctrine trust, always obtained suggestions, specifications, diagram etc. from the PWD of the State Government for the purpose of laying structure corresponding to the design furnished by the PWD so as to facilitate free flow and movement of water in the tanks in question when roads under the Project are laid over the culverts, pipes, bridges, etc. In respect of NOC, learned Senior Counsel, by terming it as immaterial, would make his submission to the effect that NOC is only for the purpose of larger public interest as the lands held by the NHAI on behalf of the Central Government and the lands held by the state Government and maintained by the Public Works Department are in the nature of public trust in view of the fact they are water bodies and therefore, both the Central and State Authorities have to work in tandem and that is why clearances are sought for even though the same are not specifically emphasized by any Statute or Executive Order.
By recapitulating the earlier writ proceedings in W.P. No.6262 of 2011, learned Senior Counsel further submits that the PWD themselves submitted the details regarding the tanks in the three districts involved along with requirement of designs, drawings for construction, etc. by way of tabular column, and such specifications have been duly adhered to in the course of implementing the projects. More over, NHAI made all endeavours always with sharp contemplation to avoid even a minute damage to any water body/tank involved and that is why, they also solicited expert opinions in respect of the roads passing through all the tanks in the three districts concerned and also, for the entire project. In fact, NHAI could proceed further free of any predicament when the IIT opinion made it clear that the already constructed structures will not affect the water course in any way and also the tanks connected to K.Sathanoor, in which place, the work was obstructed by the President of the Farmers' Association. Added to that, without any exception, all structures over the tanks were constructed to form road with the qualified expert of the State Government i.e., Assistant Engineer, Executive Engineer, Superintending Engineer and the Chief Engineer of the PWD. Such being the scenario in which the sequence of events proceeded so far, the action of the official respondents in unilaterally withdrawing the NOC and attempting to stall the public welfare work which is almost nearing completion can never be justified before the Court of law.
With much stress and force, it is pointed out that, after NHAI obtained interim injunction against the respondents and proceeded with the work, never, the endeavour of the respondents to vacate the inunction granted was successful before this Court since the respondents could not even prima facie establish before this Court that NHAI ever proceeded in any way with an intention to disturb the nature of the water course. Even now, NHAI is proceeding as per the undertaking given in the earlier writ proceedings in WP. No.6262 of 2011 and therefore, the impugned letters issued, withdrawing the NOC already granted, deserved to be interfered with by this Court and further, to ensure that the benevolent project undertaken in great public interest to ensure industrial growth as well as the traffic movement both container and passenger shall come into existence for the welfare of the State, it may have to be made clear by this Court that the State Government should not create any obstacle to the Project almost nearing completion. Any step or measure by the State Government to hamper the project, which would serve the interest of the public at large, should not be allowed to stand in the way, as otherwise, every such welfare scheme would be interfered with under one pretext or other.
By referring, among other case-laws, to a decision of the Hon'ble Apex Court, reported in 2003-6-SCC-1 (Kapila Hingorani v. State of Bihar), learned Senior Counsel highlighted the following portion therefrom, " 63. The right to development in the developing countries is itself a human right. The same has been made a part of WTO and GATT. In 'The World Trade Organisation. Law, Practice, and Policy (Oxford) by Matusushita Schoenbaum and Mauroidis at page 389, it is stated :
"The United Nations has proclaimed the existence of a human right to development. This right refers not only to economic growth but also to human welfare, including health, education, employment, social security, and a wide-range of other human needs. This human right to development is vaguely defined as a so-called third-generation human right that cannot be implemented in the same way as civil and political human rights. Rather, it is the obligation of states and intergovernmental organizations to work within the scope of their authority to combat poverty and misery in disadvantaged countries.", Also, the following text from the Apex Court's decision in Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde (1995-Supp(2)-SCC-549) is highlighted, " The Declaration on the Right to Development to which India is a signatory recognising that development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom. Article 1 assures that "The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social cultural and political development, in which all human rights and fundamental freedoms can be fully realized." Article 2 assures right to active participation and benefit-of his right to development. Article 3 enjoins the state as its duty to formulate proper national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting there- from. Article 3(1) states that it is a primary responsibility of the State to create conditions favourable to the realisation of the right to development. In particular, Article 4(1) directs the State as its duty to take steps individually and collectively for providing facilities for full realisation of right to development. Article 8(1) enjoins that the State should undertake necessary measures for the realisation of the right to development. Article 10 says that steps should be taken to ensure the full exercise and progressive enhancement of the night to development, including the formulation, adoption and implementation of policy, legislative and other measures for legislative and executive measures.", Learned Senior Counsel would add that, in the present case, the State is so insensitive to a beneficial project and pathetically, such project is attempted to be stalled at any cost, therefore, interference is called for.
On the point that a project implemented in public interest and which serves the cause of environment is not liable to be quashed merely for technical non-compliance, much reliance was placed on a Division Bench decision of the Bombay High Court in Rambhau Patil & others vs. Maharashtra State Road Development Corp. Ltd. & others (2002-1-ALLMR-385), wherein, it was ruled thus, "29. ..... in a case of this nature, if there is substantial compliance with the requirements of the notifications, the project and the environment clearance granted by the Government of India should not be quashed on the mere ground of technical procedural non-compliance. We cannot lose sight of the fact that this is a public interest litigation. Therefore, the primary concern of the Court in such writ petitions is to safeguard public interest. We cannot also lose sight of the fact that the project has also been conceived to serve public interest, and provide free flow of traffic between Bandra and Worli, which is considerably an over-burdened sector. The report of the Consultants does include a chapter on Environmental Impact Assessment. The report takes into account earlier reports and views expressed by experts. This was followed by public discussions and seminars held for the purpose. It is not as if the project violates any statutory provision. Reclamation of land is permissible for sea-link projects. The project is included in the revised Development Plan prepared under the MRTP Act. The Coastal Zone Management Plan, which includes the project, has also been approved by the Government of India. We are also satisfied that the project would not cause any ecological or environmental damage. We cannot lose sight of the fact that while maintaining and observing environment and ecology, the Government is also required to solve other problems, which are of varied nature and also involving public interest, and, therefore, a balance has to be struck between the two. If the project violated any statutory provision, and resulted in ecological and environmental damage, we would have no hesitation in quashing the project itself. However, we find that the project will not have any such result, and all that can be said is that the procedure under the three EIA notifications was not followed, though we find that Environmental Impact Assessment Report was submitted along with the application for grant of environment clearance by the Government of India, and that was followed by seminars in which social activists and environmentalists had adequate opportunity of expressing their views. We are, therefore, of the view that the requirements of the notifications have been substantially complied with, even if technically the procedure was not punctiliously observed."
A Division Bench decision of this Court in Exnora International vs. the Govt. of Tamil Nadu (2007-3-LW-859) and others is also heavily relied upon by laying stress on the following portion therefrom, " 21. Though we have regard and perceive the concern of the petitioner in preservation of ecology and environment and in using the water bodies and waterways in a City like Chennai, at the same time, the benefit stemming out of the MRTS project to the public at large cannot be ignored or underestimated. When a Public Interest Litigation was filed in connection with the Sethu Samudram Shipping Canal Project, after considering various objections raised relating to environmental aspects, the First Bench of this Court, in O.Fernandes, Co-Convener, Coastal Action Network v. Tamil Nadu Pollution Control Board & others [2005-1-L.W.13], while highlighting the importance of maintaining the environment/ecological set up, also stressed the need of industrialization in order to meet the global changes. The following observations in paragraphs 17 and 18 are relevant: ...
22. It is also relevant to mention the latest judgment of the Hon'ble Supreme Court in Susetha v. State of Tamil Nadu [2006 AIR SCW 4026], wherein, while considering the importance and maintenance of water storage resources, Their Lordships held, Water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Art.21 of the Constitution of India, but also in view of the fact that the same has been recognised in Arts.47 and 45-A of the Constitution of India. Art.51-A of the Constitution of India furthermore makes a fundamental duty of very citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife. But this principle applies only to natural water storage resources. The same principle cannot be applied in relation to artificial tanks.
Their Lordships have further held that where a temple tank, which had lost its utility long back and now used as dumping yard, if taken by Panchayat to construct shopping complex for the purpose of user thereof for resettlement of those persons, who were displaced due to expansion of a highway project, the decision cannot be found fault with. Considering the doctrine of sustainable development, Their Lordships have held,
21. In Bombay Dyeing & Mft. Co. Ltd. (3) v. Bombay Environmental Action Group and Others [(2006) 3 SCC 434], referring to a large number of decisions, it was stated that whereas need to protect the environment is a priority, it is also necessary to promote development stating:
'...The harmonization of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs.'
22.Treating the principle of sustainable development as a fundamental concept of Indian law, it was opined:
'The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore intergenerational interest, it is also not possible to ignore the dire need which the society urgently requires'."
Learned Senior Counsel rather made a strong submission that it is a very unfortunate case where the respondents, despite knowing fully well that major portion of the project work got completion, for the best reasons known to them, by way of impugned orders, unilaterally informed withdrawal of the NOC with further instructions to stop the remaining project work and such action without being preceded by any prior notice with an opportunity to hear and place the views of NHAI, clearly suggests something odd and hard in the approach. In that perspective, he advanced two points viz.,
(a) an administrative order must be made consistently with the rule expressed in the maxim audi alteram partem, that is, the person concerned must be informed of the case against him and must be given a fair opportunity to meet the case before an adverse decision is taken, and
(b) in the matter of execution of a decision taken by a previous Government, which does not involve any political philosophy, the succeeding Government must be held duty bound to continue and carry on the unfinished job rather than putting a stop to the same.
On point-(a) relating to audi alteram partem, he relied upon a decision reported in Neelima Misra vs. Harinder Kaur Paintal & others (1990-2-SCC 746) and laid emphasis on the following text, " An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken."
On point-(b), he cited the decision in State of Karnataka & another vs. All India Manufacturers Organisation & others (2006-4-SCC-683) and referred to the following portion therefrom, "66. Taking an overall view of the matter, it appears that there could hardly be a dispute that the Project is a mega project which is in the larger public interest of the State of Karnataka and merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. That such an action cannot be taken every time there is a change of Government has been clearly laid down in State of U.P. and Anr. v. Johri Mal and in State of Haryana v. State of Punjab and Anr. where this court observed thus:
"in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same."
While concluding, learned Senior Counsel would state that the project being road infrastructure and development in nature, any casual and arbitrary exercise of powers would affect also the stake holders interests. According to him, the Central Government being the owner of the disputed lands under the Act and the petitioner/NHAI vested with all powers to enter upon and lay the roads and it has already constructed culverts and bridges only in accordance with the specifications as drawn by the State-PWD, at no stretch of imagination, the act of NHAI in proceeding with the construction of bridges/road can be termed as illegal. So submitting, he ultimately pleaded that all the three writ petitions filed by NHAI may be allowed.
5. Per contra, Mr.P.H.Aravindh Pandian, learned Additional Advocate General, vehemently countered the arguments advanced by the learned Senior Counsel for the petitioner, by submitting thus, No doubt, development activities like formation of four-lane roads are essentially required, but, such development activity can never be allowed to take place by affecting the irrigation sources meant for agriculture. When the PWD/State Government is very keen in preserving the water sources, there is absolutely no point in making any odd allegation or attributing motives for passing the impugned orders. NHAI had aligned the road formation cutting across the water bodies in question. The tanks in Sivaganga District, which serve as main sources of irrigation and livelihood, face high risk as the proposed alignment is made in such way to cut through those tanks highly affecting the water levels both in surface and in tank-bed. Thus, only in the interest of preserving the water bodies in question and after examining the technical issues which suggested that any further continuance of the work without resorting to re-alignment would affect the very nature of the water bodies, instructions to stop the work was given by the PWD as the proposed alignment reduces the storage capacity of the tanks and thereby would cripple the water supply meant for irrigation. He reiterated that, only after noticing all the technical aspects and studying the ground situation and satisfying with the fact that unless re-alignment as suggested by the PWD is not made, there will be an impending peril to the very existence of the water bodies as well as reflection of the same upon the ecological system, NHAI was advised to go for re-alignment. Whatever expenditure that was met by NHAI in completing the project so far cannot outweigh the larger public interest and the concern of the State Government in preservation of irrigation sources and safeguarding the interest of the village residents. The principle of audi alteram partem may not arise in this case at all, for, NHAI proceeded with the project at the water bodies without proper authorization and hence, no fault can be attached to the PWD or the Government for not having issued any prior notice before passing the impugned proceedings. In fact, the Executive Engineer/R5 in WP.1857 of 2013 conducted joint inspection on 03.09.2012 with the Project Director and Engineers of NHAI, and gave specific instructions for increasing the span and revising the plan. Despite that, NHAI, without getting NOC for the revised Plan and, by taking authority in their own hand, proceeded with the project work like an encroacher. Though NHAI justifies their high-handed action by stating that they proceeded only after appraising the state of affairs to the respondents, the records would speak that except filing application for NOC, they did not take any effort to procure the NOC, but, simply went ahead with the work.
Reference was made to the order of this Court, dated 29.09.2011, made in W.P. No.6262 of 2011, to highlight the observation that NHAI cannot make any alignment of their roads in such a way which would affect the capacity of the tanks.
A Division Bench decision of this Court in Conservation Of Nature Trust vs The Director (Order dated 20.05.2010, made in WP (MD) Nos.11850/09, etc.), was cited to highlight the direction issued to NHAI in similar matter to go for re-alignment and reliance was placed on the following portion from the said decision, " 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."
It is specifically pointed out that pursuant to the decision of Apex Court reported in Susetha vs. State of T.N. and others (2006-6-SCC-543) directing that the water source and water storage have to be preserved and that the State should take all necessary steps to ensure the protection of water bodies, the State Government enacted the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007, and as per Section 12 of the said Act, it is the duty and obligation of the the State to preserve the Water Bodies, and in the present case, the Government is acting only in terms of the said Act.
A recent judgment of the Apex Court in Association for Environment Protection v. State of Kerala (2013-5-MLJ 604) was cited, wherein, the Honourable Supreme Court interfered with the Division Bench Judgment of the Kerala High Court in allowing construction of a restaurant on the land reclaimed by the Municipality from the river. Reliance was placed on the following text therefrom, " 19. There is nothing in the language of G.O. dated 20.5.2005 from which it can be inferred that while approving the proposal forwarded by the Director, Department of Tourism for renovation and beautification of Manalpuram Park at an estimated cost of Rs.55,72,432/-, the State Government had amended G.O. dated 13.1.1978 or otherwise relaxed the conditions embodied therein. The record also does not show that the Department of Tourism had furnished a detailed comprehensive environmental impact statement for the project so as to enable the Committee to make appropriate review and assessment. Therefore, it must be held that the execution of the project including construction of restaurant is ex facie contrary to the mandate of G.O. dated 13.1.1978, which was issued by the State in discharge of its Constitutional obligation under Article 48-A. Unfortunately, the Division Bench of the High Court ignored this crucial issue and casually dismissed the writ petition without examining the serious implications of the construction of a restaurant on the land reclaimed by Aluva Municipality from the river.
20. G.O. dated 13.1.1978 is illustrative of the State Governments commitment to protect and improve the environment as envisaged under Article 48A. The object of this G.O. is to ensure that no project costing more than Rs.10 lakhs should be executed and implemented without a comprehensive evaluation by an expert body which can assess possible impact of the project on the environment and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project had been referred to the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications then it would have certainly examined the issue relating to desirability and feasibility of constructing a restaurant, the possible impact of such construction on the river bed and the nearby bridge as also its impact on the people of the area. By omitting to refer the project to the Committee, the District Tourism Promotion Council and the Department of Tourism conveniently avoided scrutiny of the project in the light of the parameters required to be kept in view for protection of environment of the area and the river. The subterfuge employed by the District Promotion Council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution and we do not find any justification to condone violation of the mandate of order dated 13.1.1978."
On the aspect of preservation of water courses, tanks, bunds, etc. the decision reported in 2006(3) SCC 549 (Intellectuals Forum v. State of A.P.) was cited with emphasis on the following text, " This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny upon any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources. ....
The World has reached a level of growth in the 21st Century as never before envisaged. While the crisis of economic growth is 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 the humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leaves us to the conception of growth and development which sustains from one generation to the next in order to secure `our common future'. In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress." It is now an 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 present as well as the future generations are aware of them equally.
The Parliament has considerably responded to the call of the Nations for conservation of environment and natural resources and enacted suitable laws.
The Judicial Wing of the country, more particularly, this Court has laid down a plethora of decisions asserting the need for environmental protection and conservation of natural resources. The environmental protection and conservation of natural resources has been given a status of a fundamental right and brought under Art. 21 of the Constitution of India. This apart, the Directive Principles of State Policy as also the fundamental duties enshrined in Part IV and Part IVA of the Constitution of India respectively also stresses the need to protect and improve the natural environment including the forests, lakes, rivers and wild-life and to have compassion for living creatures."
Emphasizing the above aspect relating to conservation of ecology and water sources, he placed reliance also upon the following decisions,
i) L.Krishnan v. State of T.N. - 2005(4)CTC1
ii) T.S.Senthil Kumar v. Govt. of T.N.
- 2010(3)MLJ771 Ultimately, by stating that NHAI which ought to have followed necessary procedure before entering upon the tank area under the control of the PWD, very unfairly, transgressing their limits, acted with exemplary high-handedness and only in those circumstances, the State Government/PWD, being the custodian of the water sources in the state, was compelled to issue the impugned proceedings and there being absolute justification for such exercise, learned Additional Advocate General pleaded that this Court may dismiss the writ petitions in threshold, vacating the interim injunction granted in favour of the petitioner/NHAI.
6. Mr.T.Mohan, learned counsel appearing for R-4 in WP No.1858 of 2013, would commence his arguments by stating that PWD is the guardian in public trust of the water tanks in question and its exercise of power coupled with the core responsibility to protect the resources, in particular water resources, can never be allowed to be interfered with, and further, NHAI is duty-bound to ensure that its projects do not result in degradation/damage to any water body. Earlier, when three water bodies in Trichy were exposed to peril on account of the project of NHAI, subsequent to the orders passed in WP (MD) No.11526 of 2010, NHAI was forced to proceed in such a manner without any detriment to the water sources. In respect of the tanks in K.Sathanoor, this respondent had also filed WP MD No.6262 of 2011, wherein, direction was issued to NHAI not to involve in any activity that would obstruct the inflow and outflow of water supply in the tanks/supply channel. Merely because that writ petition was dismissed, without any care and concern for the direction imposing conditions, the petitioner proceeded to carry out construction which ultimately affected free flow of water within the tanks. According to the learned counsel, NHAI has no authority whatsoever to construct the Highways at the cost of obliterating the water bodies as such action would not only affect both surface and ground water but also the agriculture and the livelihood of farmers whose crops are irrigated from these water bodies through carefully constructed supply channels. That is why, by acting timely, PWD denied the NOC not on the basis of situation of agricultural lands along the alignment but on the basis that the proposed alignment and execution would obliterate the very water body itself. The earlier NOC issued was inchoate and without jurisdiction, hence, the petitioner cannot now complain that no opportunity was afforded before withdrawal of the so-called NOC. Whatever construction activities that had taken place were carried out without necessary enter upon permission and NOC from the PWD, therefore, if at all anybody is to be blamed for high-handedly spending crores of rupees, it should only be NHAI who overstepped its authority. In utter violation of the earlier orders of this Court, instead of building over-bridges and box-culverts, NHAI is laying embankments because of which, definitely, the water bodies would be highly affected. Never, R-4 prevented or interfered with the NHAI in proceeding to implement the project as per the directions of the Honourable High Court. By relying upon self-contradictory reports of IIT, the petitioner cannot be allowed to take stakes or derive gains at the cost of the public interest. Also endorsing the arguments advanced by the learned Additional Advocate General, learned counsel for R-4 pleaded that this is a clear case of high-handedness on the part of NHAI and since their so-called project is a great threat to the very existence of the water-bodies and the same would also have adverse reflective effect upon the ecological system in the places concerned, the case and request of the petitioner may have to be rejected in threshold.
In support of his submissions, learned counsel relied upon a Division Bench decision of this Court vide Judgment dated 09.11.2010 rendered in W.P.(MD) Nos.5769, 11526 and 11705 of 2010, to emphasize the point that the fact that 85% of the project work got completion cannot be a ground to allow further interference with the tanks, by laying stress on the following conclusion part thereof, " 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."
Learned Counsel placed much reliance upon the following penultimate portion of the Division Bench Judgment of this Court in WP MD No.6262 of 2011 rendered in the case filed by R-4 Association itself to highlight his submission that repeatedly NHAI has been warned by this Court not to indulge in any activity that would hamper the inflow and outflow of water supply to the supply channel/tanks in question, " 16. Conclusion:
Accordingly, the following directions are issued: (i) The respondent No.7 is directed to align the highway in the tanks, namely K.Sathanoor Periakulam and Kannakkankulam by constructing over bridges after providing appropriate Hydraulic and Hydrologic analysis, so as to prevent any obstruction to the inflow and outflow of the tanks. (ii) The respondent No.7 is permitted to follow Option 'B' as suggested by the Chief Engineer, Public Works Department and the Director, Centre for Water Resources, Anna University, Chennai by aligning the highway in the supply channel of Kannakkankulam tank by constructing over bridges after following appropriate Hydraulic and Hydrologic analysis so as to prevent the obstruction of inflow and outflow of water.
(iii) The 7th respondent shall comply with the suggestions made by the Director, Centre for Water Resources, Anna University, Chennai, insofar as the construction of the over bridges by undertaking appropriate Hydraulic and Hydrologic analysis.
(iv) The 7th respondent shall not at any cost involve in any activity that would obstruct the inflow and outflow of water supply in the supply channel or in the tanks, namely K. Sathanoor Periakulam and Kannakkan Kulam Tanks.
17. With the above directions, the Writ Petition is disposed of. No costs. Consequently, connected M.P.(MD) No.1 of 2011 is closed."
7. I have given my thoughtful consideration to the rival submissions advanced on either side.
Before proceeding to discuss on the submissions advanced on either side, it is pertinent to answer a joint argument advanced by both the learned Additional Advocate General and the learned Counsel appearing for the New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association K.Sathanoor, regarding the maintainability of the Writ Petitions. Such debate on maintainability has become no longer res integra since one of the parties to the dispute viz., the New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association, K.Sathanoor, rep. by its President, has received a reported Judgment (in 2012 1 MLJ 207) against the Union of India in which this Court, while considering the same issue relating to the proposed road alignment through Periyakulam and Kanakkankulam tanks of K.Sathanoor village, has held that a Writ Petition under Article 226 is very much maintainable. Hence, this Court is respectfully bound by the same.
8. At the first instance, this Court desires to make it clear that when an issue on a proposed developmental activity affecting preservation of environment/water sources is raised, undoubtedly, no court would ever allow a developmental activity to take place at the cost of putting at brink safeguards to the water sources or the environment. However, when the court is satisfied with sufficient and adequate materials that a developmental activity may not affect the ecological balance or preservation of water sources and that, with the advantage of innovative technology, no detriment would result to the water sources or ecology, there may not be any impediment to allow such project to proceed and have its completion for the use and benefit of the public at large. In that perspective, this Court has to examine as to, in these cases, in whose favour, the scales may have to be tilted in favour or against.
9. It is seen that the project relating to the Bypass Road involved here is a major one spread over to three districts viz., Trichy, Pudukottai and Sivagangai, connecting 5 National Highways -
(a)Thanjavur-Trichy NH-67,
(b) Trichy-Madurai NH-45B,
(c) Trichy-Karur NH-67,
(d) Trichy-Karaikudi-Karaikudi-Ramanathapuram NH-210
(e) Trichy-Dindukkal NH-45.
In W.P. No.1856 of 2013, the project-work relates to Sivagangai District and a part of the new-alignment of Bypass passes along 4 water bodies -
(a) Kanadukathan Tank,
(b) Kovilur - Koneri Tank,
(c) Sankarapuram Tank and
(d) Senjainattar Tank;
while, in W.P. No.1857/2013 relating to Pudukottai District, 4 water-bodies/Tanks involved are,
(a) Kulathur Periakulam Tank,
(b) Keeranur Periakulam Tank,
(c) Thamaraikanmoi Tank and
(d) Vengaikanmoi Tank; and, in W.P. No.1858 of 2013 concerning Trichy District, the new alignment intersects 6 Tanks, viz.,
(a) Paranthakulam Tank,
(b) Periakulam Tank,
(c) Nilamuttikulam Tank,
(d) Kumbakudi Tank,
(e) Kanakkankulam Tank and
(f) K.Sathanoor Periyakulam Tank.
The above 3 set of water-bodies in Sivagangai, Pudukottai and Trichy are referred to henceforth as WT-1, WT-2 and WT-3 respectively. It seems that this Mega Project was formulated and sanctioned, after undertaking a Feasibility Study and also considering the growth aspect of the three Districts concerned in the sphere of commerce and trade as well as free-flow of vehicular traffic for the benefit of the general public.
9-A. From the records, it is seen that, in respect of WT-1 within Sivaganga, on 17.07.2008, NHAI made a requisition for NOC and sought for 'enter upon permission' to the PWD, whereupon, the Engineers at the hierarchy in the PWD as well as the Special Tahsildar-LA/NH and Project Director-NHAI made a joint inspection in respect of WT-1, followed by preparation of sketch identifying the formation of the road and also the capacity of the tanks, width of the road, loss of capacity and the measures to be taken to overcome the loss of capacity viz., desilting/deepening works. In the report, dated 17.07.2012, of the Chief Engineer, PWD, the inspection made by the officials of the PWD and that of NHAI is mentioned as below:-
" ... the proposed areas pertaining to PWD tanks have inspected by the PWD Officials along with the NHAI officials on 05.07.2011... "
The said report also reflects that the prime issue discussed was relating to 'loss in capacity' of the tanks in question, for which, the solution arrived at was deepening of the tank, for which purpose, it was decided to direct the NHAI to deposit Rs.39.76 lakhs for deepening all the 4 water-bodies under WT-1. The said report clearly suggests that the Chief Engineer, PWD, in fact, requested for obtaining NOC from the competent authority in favour of NHAI for formation of road through WT-1 tanks. The relevant portion from the said report is extracted below:
" ... Regarding issuing of NOC for the Construction in water bodies the Secretary to Government PWD has instructed vide lr. no 4th cited to send such proposals to the Government for getting NOC. As such I request that necessary NOC may be obtained from the competent authority to NHAI for formation of NH210 road in the above tank areas subject to the following conditions: .... "
9-B. Regarding WT-2 situated in Pudukottai District, R-5 in WP No.1857 of 2013/the Executive Engineer, PWD, vide letter dated 25.01.2010, positively recommended for issuance of NOC for formation of road and other structures intersecting WT-2 and it is apt to reproduce below the relevant portion therefrom, "bghJg;gzpj;Jiwf;F brhe;jkhd fz;kha;fspd; fiu tHpahft[k;. fz;kha;fspd; FWf;nfa[k; njrpa beL";rhiy ?210 mikf;f cj;njrpf;fg;gl;Ls;sJ/ mt;thW mikf;Fk; bghGJk;. rhiu mfyg;gLj;Jk;bghGJk; njitahd ,l';fspy; FWf;F fl;ol mikg;g[fshd kjFfs;. rpW ghy';fs;. mikj;J ePh;g;gpog;g[ gug;gpw;Fk;. ghrdg; gug;gpw;Fk;. ghrdj;jpw;Fk; ,ila{wpd;wp rhiy mikj;Jf;bfhs;s jilapy;yhr; rhd;W tH';fyhk; vd ghpe;Jiu bra;ag;gLfpwJ/"
Subsequently, by proceedings dated 23.12.2011, R-1 in WP No.1857 of 2013, while confirming the grant of NOC, instructed R-3 that, in future, proposals shall have to be prepared by him and thereafter, the same should be placed before the Government through R-2. For this, learned Additional Advocate General pointed out that, in fact, the wordings 'NOC granted' was a typographical error and what was actually intended there was that, for grant of NOC, in future, proposal shall have to be routed through R-2 for decision by the Government. It is the specific case of the NHAI that the 5th respondent, after joint inspection along with WRO Engineers, gave instructions to the concessionaire vide letter, dated 03.09.2012, directing them to increase the span and to revise the plan and submit the same for approval, whereupon, after submitting the revised plan and design drawing, the conditions/directions by R-5 have been duly followed in the construction works and the work also underwent progress.
10. Coming to WT-3 in Trichy, by exhaustive proceedings of R-3, NOC was granted to lay road in the 6 tanks in question.
11. As borne out by the records, it is clear that, at the initial stages, in fact, the authorities in the PWD were in favour of the proposed project which included laying roads across certain portions in the water-bodies involved. At this juncture, it is more relevant to mention about the Division Bench Judgment of this Court reported in 2012-1-MLJ-207 (cited supra) ie., decision in W.P. No.6262 of 2011. The petitioner therein was none else than present R-4 in W.P. No.1858 of 2013/Vivasayigal Welfare Association and, with almost similar objections as raised in the present case, by specifically contending that the proposed road alignment would affect the water-bodies, thereby, adverse effect thereof would reflect upon the agricultural operations and also, by stressing heavily on the point of preserving water bodies, they challenged the project Highway passing over two tanks and agricultural lands and also a special relief was sought against NHAI to have realignment of the project. After considering similar pleas and objections raised here, the Honorable Division Bench declined to accede to the case of the petitioner/R4 herein, however, specific direction was issued to ensure that no activity was carried out by NHAI to obstruct the inflow and outflow of water supply in the supply channel or the tanks in question.
12. Before proceeding further, this Court deems it just and necessary to delve into the core allied issue - as to whether, the respondents/PWD are justified in cancelling the NOC particularly when, as pointed out above, nod was primarily given to NHAI for proceeding with the Project.
It is seen that, in respect of the project in question, the Notification under Section-3A of the National Highways Act was issued between 17.07.2010 and 21.04.2011 covering the areas specified in three Districts concerned. Nowhere from the records, it is seen that any State Government authority had ever raised objections in terms of Section 3-C of the National Highways Act. Consequently, once publication of Notification under Section-3D, which is given below with sub-clauses (1) and (2), "3-D. Declaration of acquisition.-- (1) Where no objection under sub-section (1) of section 3-C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2)of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of Section 3-A. (2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. "
was issued between 16.12.2010 and 19.08.2011 for all the three districts including the disputed lands acquired in the tanks, the Central Government became the owner of the property as the lands in question absolutely vest with them free from all encumbrances. Now, it is relevant to extract below Section-3F of the Act, "3-F. Right to enter into the land where land has vested in the Central Government.--
Where the land has vested in the Central Government under section 3-D, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do other act necessary upon the land for carrying out the building, maintenance, management or operation of a national highway or a part thereof, or any other work connected therewith."
In terms of the above provision, after the lands in question vesting with the Central Government, absolutely, there was no bar for them to proceed with the project. But, there is one another vital aspect that needs to be mentioned. Merely because the PWD or the State Government did not make any objection for the acquisition process so that the benevolent project can come into existence, it does not mean that the tanks, which are water-sources for the livelihood of the villages in the Districts concerned, and also the sole source of irrigation for agricultural operations are absolutely given into free hands of NHAI to deal even in such a way so as to change the very character of the water bodies for laying roads. In other words, it is common and rational inference that, any non-objection by PWD, which is the custodian of water bodies in particular non-system tanks to carry out project operations over the tanks, does not mean that they gave up their supervisory rights over the tanks and allowed NHAI to convert the entire tanks into roads, rather, PWD would, by retaining its control over the water bodies, would monitor the project to ensure that no harm or threat is posed to the existence or nature of the water bodies.
13. If the matter is examined in that perspective, it is seen that the specific case of the petitioner is that NHAI, from the very initial stage, always co-ordinated with the PWD by getting their suggestions, specifications, diagrams for the purpose of laying structure suiting to the designs furnished by PWD to ensure that no obstruction is caused to the free flow and movement of the water into the tanks when roads are laid. While traversing into the core aspect of issuance of NOC and later withdrawal or rejection of the same in these cases, it could be seen that regarding WT-3 of Trichy District, NOC was given for the project on 30.12.2011 and after allowing the project to continue for about ten months, by the impugned order dated 03.10.2012, the NOC was withdrawn on two grounds - viz.,
(a) due to the plea made by the agriculturists; and
(b) in terms of the Govt. Letter, dated 27.09.2012 which reads thus, " ... the proposal sent therein for according enter upon permission to National Highways Authority of India (NHAI) to occupy certain PWD Tanks has been examined. On perusal of the proposal it shows that in all the 4 tanks, the NHAI will fill in the tank leading to loss of capacity and in all the tanks, the proposal is also to divide the tanks by filling. This cannot be agreed to, especially when the Government is contemplating rejuvenation of tanks and protection of tanks. NHAI can find alternate alignment. I am, therefore, to state that the request of NHAI for NOC is rejected."
On a perusal of the order impugned in W.P. No.1858 of 2013 and the letter extracted above, which is the subject matter of challenge in WP No.1856 of 2013, this Court is not able to find any justification on the case and claim of the respondents for more than one reason. Firstly, the agriculturists cannot have any objection once the acquisition proceedings are complete and the project already underwent considerable progress subsequent to the decision in WP.MD. No.6262 of 2011. Secondly, the letter cited in the impugned order seems to be absolutely vague as it is bereft of material details. Even though about ten months lapsed after commencement of the project, the Secretary to Government states that on perusal of the project, it was seen that NHAI would fill in the tank leading to loss of capacity. It is clearly borne out by the records produced on both sides, in this particular place, spot inspection was jointly done by both side officials before commencement of the project and in respect of one part of the project, for deepening the tanks involved so as to restore the actual water level, NHAI was required to deposit around Rs.39 lakhs and only thereafter, the work was commenced. That being so, the impugned letter in question proceeds as if the authority, who wrote the letter, perused the proposal for the first time, that too eight months after the project, to say that NHAI will fill in the tanks leading to loss of capacity. Had the letter in question was supported by any report by the high-level technical engineers of the PWD subsequent to the commencement of the project or at least with a mentioning that the Secretary had gone into all relevant technical aspects suggesting that the progress of the work and the mode applied therein goes contrary to the designs specified by the PWD, this Court can draw a positive inference towards the contents of the letter, but, the said letter is so vague that this Court is compelled to look at it only otherwise. Except stating that the project work has to be stopped as there was no proper prior permission on the Part of NHAI, there is not even a single sound allegation supported by materials to indicate that the work at progress would affect the water body.
14. Very importantly, at this juncture, this Court is also furnished with details of the work progress/completion report. In respect of Trichy District involving WT-3 corresponding to W.P. No.1858/2013, the work-progress report submitted shows thus, " (a) Paranthakulam Tank - Structure work completed. Embankment work is in progress.
(b) Periakulam Tank - Structure work completed. Embankment work is in progress.
(c) Nilamuttikulam Tank - Structure work completed. Embankment work is in progress.
(d) Kumbakudi Tank - Road work completed and used for Traffic.
(e) Kanakkankulam Tank - Survey Work completed. Other work is in progress.
(f) K.Sathanoor Periyakulam - Survey Work completed. Other work is in progress. "
The impugned letter relating to WT-2 in Pudukottai District having been already discussed above, the work project report in respect of the tanks in question depicts the following:
"(a) Periakulam Tank - Road completed and used for traffic.
(b) Keeranur Periakulam Tank - Road completed and used for traffic.
(c) Thamaraikanmoi Tank - Road completed and used for traffic.
(d) Vengaikanmoi Tank - Road completed and used for traffic."
In regard to Sivagangai District involving WT-1 also, the Report shows the following:
(a) Kanadukathan Tank - Road completed and used for traffic.
(b) Kovilur - Koneri Tank - Road completed and used for traffic.
(c) Sankarapuram Tank - Road completed and used for traffic.
(d) Senjainattar Tank - Road completed and used for traffic."
From the work progress report, it is seen that already the project work was completed in respect of Pudukottai and Sivaganga Districts and in Trichy also, where six tanks are involved, in one tank, after completing road work, traffic is allowed; in three tanks, the structure work got completion and, in the remaining one tank, survey work was completed. At this juncture, learned Senior Counsel appearing for the petitioner made a specific submission that he is prepared even to file an affidavit to the effect that NHAI so far proceeded with the work absolutely in compliance with the conditions imposed in W.P. No.6262 of 2013 and, by way of assurance, he further submitted that, in respect of the remaining minor portion of the work also, NHAI will never transgress or deviate from the conditions and never indulge in any activity that would obstruct the water flow or movement to the tanks in question. This Court, having noticed the work progress report as well as considering the submission made by the learned Senior Counsel for NHAI, finds nothing to fault with NHAI particularly when, as discussed above, the impugned proceedings in this case are absolutely bereft of any substantive material to sustain the objections raised against the project.
15. One another interesting aspect needs to be mentioned here is that though very many objections and complaints have been made before this Court by the official respondents and R-4 in W.P. No.1858 of 2013/Vivasayigal Association against NHAI that they have violated the conditions imposed in the earlier writ proceedings, it is not known as to why none of them ever moved this Court through contempt proceedings as the fact remains, in the earlier proceedings decided by the Division Bench in W.P. NO.6262 of 2011, conditions were imposed upon NHAI for adherence by them in the course of further proceeding with the project and according to the respondents, such conditions have been flagrantly violated by NHAI. Even otherwise, in the present proceedings itself, the official respondents could have acted vigorously when their complaint is so loud and far-reaching. Again, here also, the lackadaisical approach of the respondents is apparent which also suggests otherwise. When the present writ petitions were heard on 24.01.2013 along with applications for interim injunction, this Court made the following observation while granting interim injunction, " When the matter has reached, the learned Special Government Pleader represented that the learned Advocate General will represent the matter and sought for pass over. This Court passed over the matter. Again, the matter was taken up at 12.10 p.m. Even at this point of time, the learned Special Government Pleader sought for pass over. Having made the learned Senior Counsel appearing for the petitioners to wait for more than 1-1/2 hours, this Court is not inclined to show any further indulgence.
With regard to the point that has been raised by the petitioners in the writ petitions, there has to be a reply by the respondents. Since there is no representation on behalf of the respondents objecting for grant of interim injunction except by saying that the learned Advocate General has to appear in this matter, I am not inclined to show any more indulgence. I have gone through the affidavits in support of the writ petitions. Prima facie, I am satisfied that there exists a prima facie case in favour of the petitioners. Hence, there shall be an order of interim injunction for a period of two weeks. ... "
From the order granting interim injunction in favor of NHAI, it is apparent that, in this type of a serious matter, where the respondents have so many complaints and said to be endeavoring at any cost to prevent NHAI from proceeding further, they did not care to contest vigorously at the time of deciding the petitions seeking interim injunction.
16. Before winding up, it is necessary to delve into the objections raised on technical aspects. Since except Trichy in other two Districts, the Project work is already over, we are now only concerned with the former concerning WT-3. In respect of the same, when PWD made allegations about the project work carried out by NHAI and complained that technically, the work had the impact of affecting the water-levels in the tanks in question, in support of such version, learned counsel appearing for R-4 in WP No.1858 of 2013 heavily relied upon a Report, dated 29.07.2013, in the form of an Expert Opinion on National Highway passing Through Irrigation Tanks by Dr.M.Karmegam, PH.D. (London) Professor and Director (Retd.), Centre for Water Resources, Anna University, Chennai 600 025. The Introduction Part of the said Report makes discussion about a Tank, in general terms, relating to storage structure, components involved, sluices and surplus weirs, Reduced Levels, Sill level, impact on increasing and decreasing the water spread area, etc. Thereafter, the main part of the observation in the report is given thus,
(i) The alignment of Trichy bypass section of NH67 passes through 3 tanks including Sathanur-Kanakankulam and Sathanur-Periyakulam.
(ii) The area occupied by the NH in the water spread area of Sathanur - Kanakankulam is 5656.5 m2 and in Sathanur - Periyakulam is 38382.5 m2. These are equivalent to 0.61% and 4.14% reductions in their water spread areas respectively.
(iii) The reduction in storage capacity of Sathanur - Kanakankulam is 8484.75 m3 whereas the same is Sathanur - Periyakulam is 34544.25 m3.
(iv) It is clearly shown in the report that Sathanur - Periyakulam is one of the worst affected in terms of reductions in its water spread area as well as in its storage capacity.
(v) It is recommended in the report to have 3 box culverts in Sathanur - Periyakulam to inter-connect the divided water spread areas and to deepen the tank bed at potential areas to compensate the loss in storage capacity.
(vi) It was inferred that the effect of afflux in increasing the discharge at the culverts/bridges is quite considerable. The obstructions along the flow of water will contribute to the afflux and hence the head of water may be increased to as much as 0.5m.
(vii) The proposed alignment of Trichy bypass Section of NH67 cuts across the supply channel of Sathanur - Kanakankulam tank. In order to ensure that the supply channel is not affected in any way due to the alignment of NH67, three alternate arrangements are suggested as given below:
Option A: Realignment of the supply channel between the chainages 132.5 km and 133 km.
Option B: To provide a box culvert, fully avoiding the NH67 alignment, between chainages 132.5 km and 133 km.
Option C:To provide a box culvert under laid in the alignment of NH67 itself.
After making such observations about the subject matter/tanks involved, a 3-clause inference was given and by way of conclusion, it was opined thus:
"The Author is of his considered and concluded opinion that no one should be allowed to interfere with any of the irrigation tank system, wherever it happens to be located in the State of Tamil Nadu for its very novel way of planning, design and construction."
On their part, the petitioner/NHAI have submitted an Expert Opinion offered by two Professors by name Dr.S.Mohan and Dr.A.Boominathan, Department of Civil Engineering, IIT, Chennai-38. It is an Expert Opinion on Ensuring Free Flow of Water and Restoration of Storage Capacity with a Concern to Environmental and Ecological Balance in the Tanks Located along Entire Length of Proposed Trichy - Karaikudi including Trichy Bypass Package. The Background mentioned in the report shows that a Field Visit has been conducted by the above mentioned two professors and a Research Scholar of IIT by name Mr.N.Ramasundaram. The Report is supported by exhaustive maps, diagrams, Photographs and other vital observations with dates substantiating that, in fact, a Field Visit Work was done by the experts. Inasmuch as out of 14 tanks, after completion of work, road is used for Traffic with reference to 9 tanks, and further in three tanks Civil Structure work was completed and in the remaining 2 tanks, survey work is completed, without exhaustively delving into the Expert Opinion, it is but apt to extract below the core points alone in the Expert Report from IIT submitted after actual Field Visit, " a) It is found that the NHAI had completely adopted both PWD requirements and the directions of High Court Madurai and in some places they have constructed more number of culverts, thus the free flow between both sides are not at all affected.
b) The surplus structure in each tank needs to be strengthened to protect the available water and many tanks needs desilting.
c) The supply channel in Kanakkan Kulam may be realigned or suitable box culverts maybe provided.
d) More than 80% of the NH construction work has been completed and only NH portions passing through Sathanur Kannakan Kulam and Sathanur Periakulam tanks and in these tanks the proposed hydraulic structures are more than sufficient to ensure free flow within the tank. "
Even though subsequent to both the reports, now, work progress report is before this court and, on the face of it as well as the impugned proceedings, which lack in material particulars, this Court deems it necessary to point out that the report filed by R-4 is so hollow that except the observation portion, almost the remaining work only speaks about the system of tanks only in general terms, or in other words, it is not unique and exhaustive in respect of the tanks in question. Further, unfortunately, nothing could be seen in the said report even to suggest that the Expert had done any field survey to give the exact details in the form of photographs, maps, diagrams, spot assessment etc. as found in the report of the IIT. Thus, viewing the entire case in a broader spectrum through all available materials, this Court does not find any justification on the part of the respondents in endeavouring to stall the remaining minor portion of the work in Trichy District.
17. After deeply examining the case of the PWD that a development activity is endeavored to take place by causing harm to the ecology, and exerting all efforts to explore the authenticity of the allegations and counter-statements from all angles, this Court, from the above discussion, finds that the respondents have miserably failed to substantiate their own case since the impugned proceedings lack in material particulars coupled with the laxity on their part in handling these cases when the matter was taken up for grant of interim injunction, and further holds that, when it could be inferred from the materials that there is no danger or threat to the water-bodies having regard to the completed project as well as the undergoing project, for which, already, it has been assured by the learned senior Counsel for the petitioner that NHAI would not indulge in any activity that would obstruct water-flow or adversely affect the water bodies, there is no difficulty for this Court to permit NHAI to proceed with the remaining portion of the work, of course, with due adherence to the undertaking given before this Court. Resultantly, there is no need to tilt the scales between environment/water-sources preservation and sustainable development, for, both ends are in absolute and equal balance here, leaving no scope for abandoning one at the cost of the other. On this aspect, very aptly, the Hon'ble Apex Court, in T.N.Godavarman Thirumulpad v. UOI (2008-2-SCC 222) ruled thus, " As a matter of preface, we may state that adherence to the principle of sustainable development is now a constitutional requirement. How much damage to the environment and ecology has got to be decided on the facts of each case. While applying the principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of the future generations to meet their own needs is sustainable development. Therefore, courts are required to balance development needs with the protection of the environment and ecology. It is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity...."
18. Further, when NHAI, having regard to the allegations levelled against them, made their position before this Court very clear that they would proceed with the remaining project only in terms of the specifications that would in no away affect the water bodies, by referring to the following observation of the Apex Court in UOI v. Dr.Kushala Shetty and Ors (AIR 2011 SC 3210), " Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. ...", this Court finds no justification whatsoever to accede to the case and claim made against the petitioner. In fact, NHAI, after approaching this Court, have obtained an order of interim injunction to resume the work in full swing, whereupon, 80% and 95% of works got completion with reference to Karaikudi Bypass and other project areas respectively. It should not be lost sight of that, while executing major Road and Railways projects connecting Districts, Cities and States, at some points, the project may cause ecological and environmental damage. However, a balance has to be struck between the two, without compromising the issue of ecology and simultaneously, without sacrificing the benevolent road projects useful for socio-cultural, commercial and economic development of the people. Of course, while executing National Projects like Konkan Rail Project, ecological and environmental damages had occurred, fortunately, on that score, the Konkan rail project was not abandoned. Similarly, while executing the Delhi metro rail project, several houses even inside the shopping and residential zones were to be disturbed, again, by citing ecological and environmental damages and the complaints of the people living or working, the project was not cancelled. After completion of all these two projects, people now enjoy manifold developments and benefits in the fields of trade, commerce, tourism, etc. Similarly, even in Chennai, when the mass rapid transit system (MRTS) project was launched, while heavy objections were raised, this Court, in the decision in Exnora International v. Government of Tamil Nadu, reported in 2007 (3) L.W. 859, while mainly considering the objection that the water bodies are to be saved at any cost, nicely stressed the need for industrialization in order to meet the global challenges. But, in the case on hand, when there is nothing on record to sustain the apprehensions raised in the impugned proceedings with complaint on threat to water-bodies and having regard to the undertaking given by the learned Senior Counsel for the petitioner that hitherto, no condition imposed in the earlier court proceedings was violated and that in respect of the remaining project work also, the conditions would be fulfilled duly, this Court finds no justification to stall the remaining minor work and hence, the impugned proceedings have to be quashed.
19. In the result,
a) all the three writ petitions stand allowed, quashing the entire impugned proceedings; and
b) NHAI is permitted to complete the remaining project subject to the condition that they should not contravene the undertaking given to this Court in respect of preservation of water bodies and further, in respect of the completed project and the undergoing project, if any deepening of desilting or any other restoration work is required, NHAI should carry out the same by incurring the entire expenditure required therefor.
Connected Miscellaneous Petitions stand closed.
06.01.2014.
Index : yes / no.
Internet : yes / no.
JI.
To The Secretary to Government, Public Works Department, Secretariat, Fort St. George, Chennai 600 009.
The Principal Chief Engineer, Water Resources Department, Chepauk, Chennai 600 005.
The Chief Engineer, Public Works Department, Water Resources Organisation Madurai Region, Madurai 625 002.
The Chief Engineer, Public Works Department, Water Resources Organisation, Trichy Region, Trichy 620 020.
The Assistant Executive Engineer, Public Works Department, Water Resources Organisation, Manimuthar Basin Sub-Division, Karaikudi-630 001.
The Superintending Engineer, Public Works Department, Water Resources Organisation, Middle Cauvery Basin Circle, Trichy.
The Assistant Engineer, Public Works Department, Water Resources Organisation, Irrigation Section, Kandanur-630 104.
The Executive Engineer, Public Works Department, Water Resources Organisation, South Vellar Basin Division, Pudukottai.
The Assistant Engineer, Public Works Department, Water Resources Organisation, Irrigation Section, Karaikudi-630 001.
The Assistant Engineer, Public Works Department, Water Resources Organisation, Irrigation Section, Keeranur, Pudukottai District.
T.Raja, J.
Pre Delivery Common Order in W.P. Nos.1856 to 1858/13. 06.01.2014.