National Green Tribunal
Mugasi Anumanpalli Village Panchayat vs Ministry Of Environment Forest And ... on 28 August, 2024
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
Item No.1 (i) & (ii):-
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Wednesday, the 28th day of August, 2024.
(Through Video Conference)
Original Application No.89 of 2022 (SZ) &
I.A. No.109 of 2023 (SZ)
WITH
Original Application No.61 of 2022 (SZ)
IN THE MATTER OF:
1) M-4 LBP Systemised Irrigation Council
Rep. by its President,
P. Periavellappan,
1, Malappalayam, Mullampatti Post,
Erode District - 638 107.
2) M-13 LBP Systemised Irrigation Council
Rep. by its Secretary
V.M. Krishnamoorthy,
5, Vemandam Palayam,
Attavanai Anumanpalli,
Arachalur Via, Modakuruchi Taluk,
Erode - 638 101.
3) U8A LBP Systemised Irrigation Council
Rep. by its President
B.C. Senkottaiyan
Sathy Main Road,
Kavundapadi - 638 455
Erode District.
4) U9 LBP Systemised Irrigation Council
Rep. by its President
D. Kalaivanan
Thingalur Road,
Nallampatti - 638 057.
Erode District.
...Applicant(s)
Versus
1) Union of India
Rep. by its Secretary,
Ministry of Environment, Forests and Climate Change,
Jorbagh, New Delhi.
2) The State Environmental Impact Assessment Authority -
Tamil Nadu
Rep. by its Director,
3rd Floor, Panagal Maaligai,
No.1, Jeenis Road, Saidapet,
Chennai - 600 015.
Page 1 of 24
3) The State of Tamil Nadu
Rep. by the Principal Secretary to Government,
Public Works Department,
Secretariat, Chennai - 600 009.
4) The State of Tamil Nadu
Rep. by the Director
Department of Environment,
Panagal Maaligai,
No.1, Jeenis Road, Saidapet,
Chennai - 15.
5) The Tamil Nadu Water Resources,
Conservation and Rivers Restoration Corporation Ltd.,
Rep. by is Chairman and Managing Director,
Chennai - 600 009.
6) The Engineer in Chief
Water Resources Department
Chepauk, Chennai - 600 005.
7) Tamizhaga Vivasayigal Sangam
Registration No.82/2010
Rep. by its Secretary
T. Muthusamy @ Subbu,
No.602/487, Perundurai Road,
Erode - 638 011.
...Respondent(s)
WITH
1) Mugasi Anumanpalli Village Panchayat
Rep. by its President
Modakurichi Panchayat Union,
Modakurichi Taluk,
Erode District.
2) Elumathur Village Panchayat
Rep. by its President
Modakurichi Panchayat Union,
Modakurichi Taluk,
Erode District.
3) Pudupalayam Village Panchayat
Rep. by its President
Perundurai Taluk,
Erode District.
4) Kandikattuvalasu Village Panchayat
Rep. by its President
Modakurichi Taluk,
Erode District.
5) Paniyampalli Village Panchayat
Rep. by its President
Perundurai Taluk,
Erode District.
6) Ekkatampalayam Village Panchayat
Rep. by its President
Perundurai Taluk,
Erode District.
Page 2 of 24
7) Nathakadaiyur Village Panchayat
Rep. by its President
Kangayam Taluk,
Tiruppur District.
8) Thammareddipalayam Village Panchayat,
Rep. by its President
Kangeyam Taluk,
Tiruppur District.
9) Maravapalayam Village Panchayat
Rep. by its President
Kangayam Taluk,
Tiruppur District.
10) Keeranur Village Panchayat
Rep. by its President
Kangayam Taluk
Tiruppur District.
...Applicant(s)
Versus
1) Union of India
Rep. by its Secretary,
Ministry of Environment, Forests and Climate Change,
Jorbagh, New Delhi.
2) The State Environmental Impact Assessment Authority -
Tamil Nadu
3rd Floor, Panagal Maaligai,
No.1, Jeenis Road, Saidapet,
Chennai - 600 015.
3) The State of Tamil Nadu
Rep. by the Principal Secretary to Government,
Public Works Department,
Secretariat, Chennai - 600 009.
4) The State of Tamil Nadu
Rep. by the Director
Department of Environment,
Panagal Maaligai,
No.1, Jeenis Road, Saidapet,
Chennai - 15.
5) The Tamil Nadu Water Resources,
Conservation and Rivers Restoration Corporation Ltd.,
Rep. by is Chairman and Managing Director,
Chennai - 600 009.
6) The Engineer in Chief
Water Resources Department
Chepauk, Chennai - 600 005.
7) The District Collector,
Erode District,
Erode- 638 011.
8) The District Collector,
Tiruppur District,
Tiruppur - 641 604.
Page 3 of 24
9) The District Collector,
Karur District,
Karur - 639 007.
10) The Superintending Engineer.
Water Resources Department,
Lower Bhavani Basin Division,
Erode - 638 011.
11) Tamizhaga Vivasayigal Sangam
Registration No.82/2010
Rep. by its Secretary
T. Muthusamy @ Subbu,
No.602/487, Perundurai Road,
Erode - 638 011.
...Respondent(s)
O.A. No.89/2022:
For Applicant(s): Ms. Anitha Shenoy, Sr. Adv. a/w.
M/s. A. Praveen Kumar, M. Meenatchi &
Kuberan.
For Respondent(s): Mr. R. Thirunavukarasu for R1.
Dr. D. Shanmuganathan for R3 to R6.
Mr. S. Thangavel for R7.
M/s. S. Karthikei Balan, B. Sasidaran,
S. Shivram, A. Prashanth & Lakshmipriya
Muthuramalingam - I.A. No.109/2023.
O.A. No.61/2022:
For Applicant(s): Ms. Thilagavathy, Sr. Adv. a/w.
M/s. K.M. Mrithunjayan, S. Bala Ganesh,
P. Rhevanth Charan & S. Jeeva.
For Respondent(s): Mr. R. Thirunavukarasu for R1.
Mr. G.M. Syed Nurullah Sheriff for R2.
Dr. D. Shanmuganathan for R3 to R10.
Mr. S. Thangavel for R11.
Judgment Reserved on: 06th March, 2024.
CORAM:
HON'BLE Smt. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Page 4 of 24
JUDGEMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member.
1. The elected representatives of various village panchayats in Modakurichi Taluk, Perundurai Taluk, Kangayam Taluk of Tiruppur District, who are representing the cause of beneficiaries of the Lower Bhavani Sub Basin Project System, have filed this Original Application [O.A. No.61 of 2022 (SZ)].
2. The Original Application is filed against the proposed project of extension, renovation and modernization of the Lower Bhavani Sub Basin Project System running through the Erode, Tiruppur and Karur Districts. The existing irrigation area of the Lower Bhavani Project (LBP) consists of 83,975 Hectares. The proposed project involves the concretization of existing irrigation canals. Hence, it is stated that it falls under Clause 8 (a) substituted by S.O.3252 (E) dated 22.12.2014 to the EIA Notification, 2006 dated 14.09.2006.
3. According to the applicants, if the project is proceeded with, without following the mandatory requirements of public consultation, Environmental Impact Assessment (EIA) and without obtaining Environmental Clearance, it will have a disastrous effect on the groundwater table and scarcity of drinking water in the region.
4. It is stated that the river Bhavani enters into Tamil Nadu and runs west to east for 234 Km with several tributaries and confluences the river Cauvery at Bhavani town. The Lower Bhavani Dam is used for irrigation purposes, which is the longest dam in the basin with a length of 8.79 Km, which was constructed in the year 1950. The dam is having a capacity of 32 TMC at a length of 8 Km with a height of 130 feet. Even before the construction of the Bhavani Sagar Dam, the Kalingarayan Anaicut with earthen bunds has been in existence for more than 800 years with naturally grown trees and shrubs on the earthen bunds. The earthen bunds of Lower Bhavani is Page 5 of 24 only 70 years old along with naturally grown and planted trees to strengthen it without any supportive system.
5. It is stated further that the irrigation was first available during 1952-53 and the entire project was commenced for irrigation from 1956-57 onwards. The command area is divided into two half‟s and the distributaries in the odd mile of the main canal were numbered as 'Number I Turn' and the rest as 'Number II Turn'. The said turn system is still in operation. Under such circumstances, when water is released for Turn I, even ayacutdars in Turn II will get seepage water and vice versa. Further, through the seepage of the LBP canal not only the ayacutdars, but even non-ayacutdars, who owned land on either side of the LBP canal, are engaged in the process of cultivating their lands with the help of seepage water which percolates into the nearby tanks. For several decades, the farmers and villagers, who owned their lands on either side of the LBP to a distance of 234 Km starting from Bhavani Sagar Dam to the tail end at Mangalapatti at Karur District, have enjoyed the benefit from the seepage water either directly or indirectly. Even during the 1960s, the Irrigation Authorities had set up 34 schemes as 'Harnessing Schemes' to capture seepage and drainage water from the LBP, which ultimately increased the groundwater table and the cultivable area even in the non-ayacut areas.
6. While so, vide G.O. (Ms.) No.276 dated 09.11.2020, the Central Water Commission, Government of India, gave in- principle consent for the extension, renovation and modernization of the Lower Bhavani Sub Basin. The said extension, renovation and modernization of the sub basin entails the lining of the irrigation canal bed and walls with concrete, cutting of over thousands of trees, construction of sluices, aqueducts, bridges, etc. along with construction of the new infrastructure such as bearing guts and institutional strengthening. This lining of the canal is now under challenge, contending that without mandatory requirement of public consultation, Environmental Impact Assessment and a valid Environmental Clearance, the project cannot be proceeded with.
Page 6 of 247. According to the applicants, the concretization of the canal bed and walls will adversely affect the groundwater recharge, availability of drinking water and availability of water for irrigation via seepage, thus impacting the beneficiaries under the original application.
8. The main objections of the applicants are that:-
(i) The Project Proponent did not obtain the
Environmental Clearance.
(ii) No public hearing or public consultation was held among the affected persons.
(iii) The extension or modernization of existing projects listed in the schedule to the EIA Notification, 2006 entailing capacity addition with change in process or technology.
(iv) The project is having a potential threat to the groundwater recharge. Even if the lining is only for 65 Km, it amounts to modernization.
(v) To implement the proposed project, the Project Proponent decided to uproot several entirely grown trees that are standing on either side of the bund which would cause serious environmental damage to the ecology.
(vi) The project involved cutting off nearly four lakh trees which would have a very adverse impact on climate change.
9. So, on the above grounds, the applicants have sought for a declaration that the actions of the State of Tamil Nadu in implementing the proposed project as per G.O. (Ms) No.276 Public Works Department dated 09.11.2020 for concrete lining of Lower Bhavani Sub Basin Project System by uprooting four lakh trees in the name of extension, renovation and modernization without obtaining Environmental Clearance is as illegal and violative of the Environment (Protection) Act, 1986 and further direct the Project Proponent to undertake a detailed environmental study on the proposed project and till such time, restrain the Project Proponent from carrying on any construction activity.
Page 7 of 2410. There was yet another Original Application [O.A. No.89 of 2022 (SZ)] filed by various LBP Systemised Irrigation Councils represented by their respective President with identical prayer as that of O.A. No.61 of 2022 (SZ).
11. In both the applications, one Tamizhaga Vivasayigal Sangam impleaded itself as 11th Respondent in O.A. No.61 of 2022 (SZ) vide Order dated 22.07.2022 in I.A. No.121 of 2022 (SZ) and 7th Respondent in O.A. No.89 of 2022 (SZ) vide Order dated 06.12.2022 in I.A. No.167 of 2022 (SZ).
12. The 1st Respondent / Ministry of Environment, Forests & Climate Change (MoEF&CC) has filed its common counter, wherein it is stated the Regional Office, MoEF&CC, Chennai carried out the site inspection on 22.11.2023, as per which, the works proposed in the project involving lining of 1/3rd of canal sides and providing precast plain cement concrete slab on both sides of the slopes of the canal for a length of 65.37 Km for the purpose of renovation of the damaged cross masonry structures such as canal sluices, regulators, bridges and strengthen the weak earthen embankments of the canal. The proposed project was to provide an irrigation facility for 2,47,247 Acres in three districts viz., Erode, Tiruppur and Karur. The extension, renovation and modernization of the LBP fall in these three districts.
13. The report states that from the available records submitted by the Project Authority, the Lower Bhavani Irrigation Project was approved just after independence in 1947 and initial works were taken up even in the year 1944 to provide irrigation facilities for the culturable command area covering three districts in Tamil Nadu. The requirement of Environmental Clearance became statutory only in 1994. The proposed activity being undertaken is only an improvement and modernization and as such, may not attract the provisions of the EIA Notification.
14. The report further has mentioned about the status of the construction. The Project Authorities have undertaken construction activities during the current financial year 2023 after getting administrative approval from the Government of Page 8 of 24 Tamil Nadu. The report states that the construction of protection walls, rehabilitation/ reconstructions of the sluice gate & few bridge works in the LBP main canal were undertaken from July to August 2023 from 1-1-000 Miles to 1-1513-500 Miles. So far, about 35% of the work has been completed in all 4 packages. Presently, no new construction activities are carried out in the project area. The remaining works will be taken up in the ensuing month in non-irrigation season, as informed by the Project Authority.
15. Regarding the removal of trees, it is stated that the authorities have planned to remove trees that are grown inside the canal slopes and obstruct the flow of canal water. The proposal for the felling of trees was presented to the District Collectors of Erode and Tiruppur. The District Collector - Erode had obtained the necessary report from the Divisional Forest Officer (DFO) and Revenue Divisional Officer (RDO) and the proposal was placed before the District Green Committee, which had approved the proposal. After getting the approval, the District Collector - Tiruppur also issued an order for a total of 8,750 trees vide Order dated 13.10.2022. Similarly, the District Collector - Erode also issued an order for a total of 6,877 trees vide Order dated 06.03.2023. Even though the Water Resources Department (WRD) had obtained permission from the respective District Collectors of Erode and Tiruppur for felling trees for a total of 15,627 Nos., only 114 trees have been felled so far. The WRD has stated that it is essential to remove these trees which caused much obstruction to the free flow of water. The tree removal proposal was for considering the inner side slope of the canal which causes much obstruction to the flow. The WRD had considered only minimal removal of trees and at the same time, the canal protection to prevent breaches which may cause heavy damage to crops and also to provide an uninterrupted water supply to the tail end farmers.
16. The MoEF&CC has clearly stated that the project is an ongoing project which was approved after 1947 and it started before the prior Environmental Clearance became a statutory requirement. The MoEF&CC also has referred to the writ petitions filed by the agitating group of farmers in W.P. No.10419 Page 9 of 24 of 2021 and 11020 of 2021, wherein the Hon‟ble High Court of Madras had directed the Government to consider and dispose of the representation by a reasonable order to the petitioner. In W.P. No.19472 and 19548 of 2022, the Hon‟ble High Court had directed the respondent authorities to proceed with the works from 01.05.2023 based on the Government Order. Accordingly, as on date, 35% of the works are completed in all packages so far.
17. The State Environmental Impact Assessment Authority (SEIAA) - Tamil Nadu, which is the 2nd Respondent in O.A. No.61 of 2022 (SZ), also stated that the G.O. (Ms) No.276 PWD dated 09.11.2020 pertaining to the project in question which relates to the extension, renovation and modernization of the Lower Bhavani Sub Basin Project System. It is stated that the implementation of the scheme will facilitate irrigation to an extent of 2,47,247 Acres. As the Environmental Clearance has to be obtained only from the MoEF&CC, if required, the SEIAA - Tamil Nadu has got no role to play in this.
18. The Water Resources Department (WRD), which is the 10th Respondent in O.A. No.61 of 2022 (SZ), in its reply, has stated that the Lower Bhavani Project is unique of its kind and it is the first major irrigation project sanctioned and executed in the country after independence. The said LBP canal has been in existence for the past 65 years. Other than the periodical annual maintenance, no major improvements or renovation works have been carried out so far in the canal system. The present conditions of the canal, major distributaries, cross-masonry works, etc. are stated in detail in the reply.
19. It is stated that the canal is having a total length of 200 Km, 75 head sluices and 118 direct irrigation sluices for providing irrigation facilities. During the execution of the canal, considering the economy in cost and due to the non-availability of modern earth moving machinery, the canal bund was formed mostly using available earth from the command area itself. Due to the usage of earth, which is porous and due to the length of time, the earthen canal loses its standards, which in turn Page 10 of 24 encounters huge seepage loss. In addition to this, most of the existing cross-masonry structures are in dilapidated condition and leaky in nature. The canal sections have also been reduced and lost their carrying capacity due to the long services. Hence, the transmission efficiency is reduced considerably. The seepage loss in the conveyance of loss is presently ascertained as 50% against the allowable seepage of 33 1/3 percent. This has resulted in the canal not being able to cater to the needs of the entire ayacut satisfactory. The full supplied depth could not be maintained in most reaches. Hence, all the tail ends of the main canal, distributaries, branches and sub-branches are receiving inadequate supply. They get less than 60% supply. Therefore, the demand of the farmers during the farming period could not be met. The height of the bund has also been reduced considerably due to the frequent movement of vehicles carrying agricultural products over the bund. Hence, the embankment portions are weak and lost its standards. Only to ensure adequate supply up to the tail end, the work of extension, renovation and modernization of the Lower Bhavani Sub Basin Project canal was felt necessary. Accordingly, the Government issued G.O. (Ms) No.276 PWD dated 09.11.2020 and accorded administrative sanction to a sum of Rs.709.60 Crores for rehabilitation of the Lower Bhavani Project canal splitting into four packages. The fund for the above scheme had been awarded by NIDA (NABARD Infrastructure Development Assistance) as loan assistance. The project involves selective concrete lining in the side slopes of the canal with the objective to arrest the water seepage in the canal bunds, which accelerates the porosity of the bund and thereby, weakens the bund. The bed concrete lining is proposed only for a length of 23.84 Km on the upstream and downstream sides of the drainage culverts in the main canal.
20. The WRD further states that the concern of the applicants‟ is that the concrete lining of the entire inner area of the irrigation canal. But in this project, only 1/3rd of the canal sides which are in very damaged condition and prone to breaches are proposed to be lined. The remaining 2/3rd of the total length of the canal will remain as an unlined earthen canal.
Page 11 of 24In order to strengthen the bund, it is proposed to provide precast plain concrete cement slab on both side slopes of the canal for a length of 65.37 Km out of the total length of 199.60 Km. This is a rehabilitation project mainly formulated to renovate the worn out/ damaged cross masonry structures such as canal sluices, regulators, etc. by providing precast plain concrete cement slabs on both sides of the slopes of the canal. It is specifically stated that the allowable seepage in the canal which is 33% will not be restricted.
21. The WRD further states that as the project is not a new project and it is only a renovation and modernization of the existing 65-years-old canal and it does not involve either the addition of capacity of the canal or the addition of new lands to the existing ayacut, the Environmental Clearance is not required. Even the WRD has stated that a total of 14,158 trees in the entire length of 200 Km of the LBP canal are identified for removal and awaiting approval from the District Green Committee. Only after obtaining approval from the competent authorities, the felling of trees will be commenced.
22. The 11th and 7th Respondent respectively in the above original applications is one and the same viz., Tamizhaga Vivasayigal Sangam. It is stated in the counter filed by them that for the purpose of irrigating the backward and drought- prone areas, an anaicut by name 'Kalingarayan Anaicut' was constructed near the Bhavani Town of the Erode District. This is an old anaicut system in which an anaicut of 12,000 Acres in Erode District was brought under irrigation. Subsequently, with a view to extend the supply of water to more extent of lands, another anaicut by name 'Kodivery Anaicut' was constructed near Gobichettippalayam, Erode. The upstream of Kalingarayan Anaicut and two channels were formed from the said anaicut, one branching off on the right side of the anaicut called 'Thadapalli Channel' and other branching from the left side of the anaicut called 'Arakkankottai Channel' and an extent of 19,700 Acres were brought under cultivation.
Page 12 of 2423. Later finding that major parts of Karur, Tiruppur and Erode Districts were backward and drought-prone areas and there was sufficient water available in the Bhavani river, the Government constructed the reservoir known as 'Bhavani Sagar Reservoir' across the Bhavani river between Mettupalayam and Sathyamangalam and upstream of Kodivery anaicut in between 1948 and 1954 which is called Lower Bhavani Project for providing irrigation facilities to an extent of 2,07,000 Acres. The LBP canal is a composite earthen dam provided with spillways, river sluices, penstock and canal sluices in the masonry portion and with the earth dam on either flank extending to merge with the high ground and the total length of the dam is about 8.8 Km. Only one canal called the LBP canal takes off from the masonry dam in the right flank and is aligned throughout on a falling contour. The main LBP canal runs for a total length of about 200 Km. There are 159 branch canals off taking from the 20 distributaries with a total length of 322.23 Km. There are 75 head sluices and 118 direct irrigation sluices have been provided in the LBP canal to facilitate irrigation to an extent of 2,07,000 Acres. The carrying capacity of the LBP main canal at head reach was designed for 2,300 cusecs. Due to the non-availability of modern earth movement machinery, the canal bund was formed mostly using the available earth from the command area itself. The earthen canal thus had lost its original standards and the bunds have become leaky with a result the transmission loss has become very huge. That apart, due to the natural warrantor, most of the cross masonry and cross drainage sectors are in dilapidated condition. The inner slopes of the canal bund are fully covered with light jungle growth, which obstructs the free flow of water in the main canal. Because of these factors, the slopes of the canal have lost its original standards due to erosion.
24. It is stated further that the height of the bund was considerably reduced due to the movement of vehicles. The full supplied depth could not be maintained in most reaches. Therefore, the canal is not able to cover the needs of the ayacutdars satisfactorily and that all the tail ends of the main canal distributaries, branches and sub-branches are receiving Page 13 of 24 inadequate supply of water at the required time. Excepting for the annual maintenance, no other major improvements or renovation works have been carried out to the canal system for the past 65 years. It is now ascertained that there is 33 1/3% of seepage and percolation losses in the LBP canal in the initial stages. However, due to the present condition of the canal which has become leaky, the seepage and percolation loss has increased to more than 55%, resulting in an inadequate supply of water to the tail ends. The tail end gets less than 50% of water. That apart, every time there is a breakage of the bund, the supply of water from the dam has to be stopped at the reservoir and if the water is released after the repair work, it takes at least a week to reach the tail end again. The Bhavani Sub Basin is part of the Cauvery Basin in Tamil Nadu and it is bound by the stipulations in the final order of the Cauvery Water Dispute Tribunal. In order to improve the system efficiency and for modernization of the LBP and main branch canals, repeated requests were made by the registered ayacutdars to the Government to modernize the LBP canal. Considering the request, the G.O. (Ms) No.198 PWD dated 11.09.2009 was issued constituting an Expert Committee. Thereafter, G.O. (Ms) No.215 PWD dated 19.07.2010 was issued to accord in-principle acceptance of the report of the committee. Once again, G.O. (Ms) No.66 PWD dated 17.08.2020 was issued to apply to NABARD Infrastructure Development Assistance (NIDA) seeking a loan for the extension, renovation and modernization of the LBP system at an estimated cost of Rs.933.10 Crores. Thereafter, G.O. (Ms) No.276 PWD dated 09.11.2020 was issued for taking up the execution of extension, renovation and modernization of the LBP system in 6 packages. Subsequent to the above, tender processes were finalized and works were entrusted to the respective bidders in the year 2021 and the work commenced at three irrigation systems in 6 packages. The first four packages related to the LBP canal and the 5th and 6th Packages are related to Kalingarayan Channel and Thadapalli Channel and Arakkankottai Canal in Kodivery Anaicut system. While so, W.P. No.10419 of 2021 came to be filed before the Hon‟ble High Court of Madras, praying for issuance of writ of mandamus to forebear the respondents from executing the work of renovation and Page 14 of 24 modernization of the LBP canal as per G.O. (Ms) No.276, by depriving the riparian rights of the non-ayacutdars and drinking water sources of the villagers located on either side of the LBP canal which runs through Erode. The writ petitioner therein was given permission to make a fresh representation in the said writ petition. The said representation was rejected by the authorities holding that it is absolutely necessary to renovate and modernize the LBP canal by improving its efficiency and preserving it for the future generation.
25. The 7th & 11th Respondent has specifically averted that the Kodivery Anaicut and Kalingarayan Anaicut, work was commenced during April 2021 as per G.O. (Ms) No.276 dated 09.11.2020 and the entire renovation and modernization work in Kodivery and Kalingarayan Anaicut are already completed. It is further stated that the contention of the applicant that the proposed construction activity falls under Clause 8 (a) substituted by S.O.3252 (E) dated 22.12.2014, is incorrect, false and misleading. As there is no construction activity involved in the present project, the said amendment is not applicable to the case on hand. Besides, it is submitted that the proposed project is not a new project that requires public consultation and Environmental Clearance, as there is no increase either in the distance of the LBP canal or change in the cultivable command area in the LBP irrigation project. What is contemplated was only the renovation of the existing LBP canal without any addition either in canal distance or in the area of irrigation. Therefore, the allegation that the project requires Environmental Clearance as per S.O.3977 dated 14.08.2018 is wrong and is liable to be rejected and prayed for dismissal of the application.
26. When the matter was taken up for the hearing, the Learned Expert Member indicated that this project was dealt with by him when he was the Chairman and Managing Director of Tamil Nadu Water Resources Conservation and Rivers Restoration Corporation Limited and decided to recuse himself from the proceedings. However, the learned counsels in both cases have submitted that they have no objection for the Learned Expert Member to hear the case. Subsequently, an e-mail dated Page 15 of 24 18.05.2023 was received from Thiru. J. Thayanesh addressed to the Registrar, National Green Tribunal, Southern Zone Bench. The Learned Expert Member during the next hearing wanted to recuse himself in light of the letter sent. However, the learned counsels in both the cases have categorically stated that the said letter was not sent by them and they have no objection for the Learned Expert Member to hear the case. Therefore, the Learned Expert Member continued to hear the case.
27. The issues that arise for consideration on the above pleadings are:-
(i) Whether the concrete lining of the LBP canal require prior Environmental Clearance and permission?
(ii) Whether the destruction of four lakh trees, as alleged by the applicants, would lead to environmental degradation and damage to the ecology?
(iii) Whether the proposed concrete lining of the LBP canal would affect their right to get seepage water and affect the livelihood of the agriculturists and villagers and also offend their right to get water for drinking and agricultural purposes?
(iv) Whether the action of the Project Proponent is in violation of the National Forest Policy, 1988?
(v) Whether the Project Proponent has failed to consider the duty cast on them under them under Articles 48 A and 51 A (g) of the Constitution of India?
Issue No.(i):-
28. The Bhavani River is one of the major tributaries of Cauvery in the State of Tamil Nadu. The Bhavani River originates from the rear slopes of the Western Ghats in Nilgiris, enters a salient valley in Kerala and flows back towards Tamil Nadu. It joins the Sirumugai River and then enters into the Coimbatore District. Further down Kundah River joins the river Bhavani and Page 16 of 24 flows close towards Mettupalayam. The Moyar River confluences with the Bhavani River at Bhavani Sagar. Then the Bhavani River takes its course and confluences with the Cauvery River at Bhavani in Erode District. Prior to the construction of the Bhavani Sagar Dam, the water from the river Bhavani flowing naturally was put to limited use in irrigating the lands abutting the river Bhavani and a major portion of the same was flowing into the river Cauvery. At the tail end of the Bhavani River, the Kalingarayan Dam was constructed, which irrigates 15,743 Acres of land in Erode and Modakurichi and Kodumudi Taluk. Another anaicut called Kodivery Anaicut which irrigates 24,504 Acres of land.
29. Finding that major parts of Trichy and Coimbatore which included Karur, Tirupur and Erode were drought-prone areas and there was sufficient water in the Bhavani river, the Government taking into consideration of the optimum and better utilization of the available water to large ayacuts, constructed a reservoir known as „Bhavani Sagar Reservoir‟ across the Bhavani river between Mettuppalayam and Sathyamangalam and the upstream of Kodivery Anaicut during the period between 1948 and 1954, and a project called „Lower Bhavani Project‟ which was commissioned in the year 1955 for providing irrigation facilities to an extent of 2,07,000 Acres. The three irrigation systems in the Lower Bhavani Sub Basin are (i) Lower Bhavani Canal System, (ii) Kodivery Anaicut Canal System and (iii) Kalingarayan Anaicut Canal System.
30. The Bhavani reservoir is a composite earthen dam provided with spillways, river sluices, penstock and canal sluices in masonry portion and with earthen dam on either flank extending to merge with the high ground and the total length of the dam is about 8.8 Km. The LBP canal runs for a total length of 200 Km and there are 75 head sluices, and 118 direct irrigation sluices provided in the LBP canal to facilitate irrigation to an extent of 2,07,000 Acres. The carrying capacity of the LBP main canal at the head reach is designed for 2,300 Cusecs. Every time there is a breach of the bund because of its poor standards, the supply of water from the dam has to be stopped at the reservoir and if the supply is released after carrying out the Page 17 of 24 repair works, it takes at least a week for the water to reach the tail end again. That apart, because of the breach of the canal, the water flows into the nearby villages causing danger to the inhabitants.
31. In order to improve the system efficiency and for modernization of the LBP canal, which were in dilapidated conditions and were rendered inefficient, the ayacutdars had been making repeated requests to the Government. Accordingly, the Government of Tamil Nadu issued G.O. (Ms) No.198 PWD dated 11.09.2009 for constituting a seven-member committee. The report of the said committee was submitted after obtaining the views of the ayacutdars and other stakeholders. The Government vide G.O. (Ms) No.215 PWD dated 19.07.2010 accorded in-principle acceptance of the report of the committee constituted to formulate a scheme for modernization of the main and branch canals, including the lining of the LBP. After the estimates were drawn, the Government vide G.O. (Ms) No.66 PWD dated 17.08.2020 granted permission to the Tamil Nadu Water Resources Conservation and River Restoration Corporation Limited to seek loan assistance from NBARD Infrastructure Development Assistance (NIDA) for the extension, renovation and modernization of the LBP system at a cost of Rs.933.10 Crores. The orders were also issued to work in six packages. Accordingly, vide G.O. (Ms) No.276 PWD dated 09.11.2020, the WRD was given the task of execution and also accorded sanction for splitting up of extension, renovation and modernization of the LBP system in six packages. Tenders were called for with respect to the above and agreements were concluded with a contractual period of 24 months. The Project Proponent has categorically contended that the renovation and modernization of the existing 65-year-old canal does not involve either the addition of the capacity of the canal or the addition of the new lands to the existing ayacut and hence, the Environmental Clearance is not obtained.
32. The intention of the Government was to execute the work without any delay. Hence, necessary steps were taken to explore the possible ways to commence the work for the total ayacut of the LBP canal, spreading over three districts in a length Page 18 of 24 of 200 Km. It is not in dispute that only the ayacutdars of the LBP canal have legitimate rights to use the water for irrigation equitably from the head to tail end of the canal.
33. The Project Proponent had not obtained Environmental Clearance by holding the public hearing with the stakeholders and conducting the EIA study, since it is a major irrigation project involving more than 50,000 Hectares. It is stated by the applicants that the proposed construction activity falls under Clause 8 (a) substituted by S.O. 3252 (E) dated 22.12.2014 to the EIA Notification.
34. It is submitted on the side of the respondent that Clause 8 (a) of the EIA Notification does not relate to any irrigation system and on the other hand, it relates to building and construction projects only. The documents submitted by the applicant have included S.O.3977 (E) dated 14.08.2018 in support of his contention that the said modernization project requires prior Environmental Clearance. However, as per the said S.O., prior Environmental Clearance is required for expansion/modernization of existing projects entailing capacity addition. The Project Proponent contends that even on this score, the impugned project does not require prior Environmental Clearance, as there is no addition of ayacut area.
35. Admittedly, the total stretch is only 200 Km and there is no social forest involved in the present project. The project proposed under the G.O. (Ms) No.276 is not a new project that requires a public consultation and Environmental Clearance from the 1st Respondent, as there is no increase either in the distance of the LBP canal or in cultivable command area in the LBP irrigation project. It is only a renovation of the existing LBP canal without any addition either on the canal distance or area of irrigation. The project involves only selective concrete lining in slide slopes of the canal with the objective to arrest the water seepage in the canal bunds which accelerates the porosity of the bund and thereby weakening the bund. The bed concrete lining is proposed only for a length of 23.84 Km in the upstream and downstream sides of drainage culverts in the main canal.
Page 19 of 2436. The applicant‟s concern appears to be the concrete lining of the entire inner area of the existing irrigation canal. However, in this project, only 1/3rd of the canal side, which is in a very damaged condition and prone to breaches, is proposed to be lined. The balance 2/3rd of the total length of the canal will remain as an unlined earthen canal only. In order to strengthen the bund, it is proposed to provide precast plain cement concrete slab on both side slopes of the canal for a length of 65.37 Km out of the total length of 199.60 Km.
37. It is to be noted that the Project Proponent states that the project when completed not only benefits the registered ayacutdars but even the adjoining landowners who are not included in the registered ayacut will be benefited through the seepage occurring from the canal. Therefore, the apprehension that the interest of the non-registered lands will be affected is also incorrect.
38. The rehabilitation/modernization project is mainly formulated to renovate the worn out/damaged cross masonry structures such as canal sluices, regulators, and bridges and strengthen the weak earthen embankments of the canal by providing precast plain cement concrete slabs in both side slopes of the canal. The project proponent further assured that the allowable seepage of 33% will not be disturbed or reduced. Since it is not a new project and it is only a renovation of the existing 65 years old canal which does not involve either in addition of the carrying capacity or addition of new lands, prior Environmental Clearance is not required. The current project which involves renovation and modernization does not involve either the addition of capacity of the canal or the addition of new lands to the existing ayacut. The project will only ensure that the existing gaps in the registered ayacut are addressed. Therefore, the arguments of the applicant that the project involves more than 50,000 Hectares being a major irrigation project comes under „A‟ category and it requires Environmental Clearance from the 1st Respondent, is not acceptable and the public hearing and the Environmental Impact Assessment (EIA) study are not mandatory. Hence, the issue is answered accordingly.
Page 20 of 24Issue No.(ii):-
39. Regarding the cutting of trees, though the applicants have stated that more than four lakh trees would be destroyed, no material has been produced in support of their contention. Whereas, on the side of the respondent, it is stated that the Government had planned only to remove 14,158 trees that have naturally grown inside the slide slopes of the canal obstructing the free flow of water and damaging the existing canal and masonry structures. In this regard, a thorough field survey was made in the canal and 5,461 trees in Erode District and 8,697 in Tiruppur District, totalling 14,158 No. of trees in the entire 200 Km length of the LBP canal were identified. Therefore, it is incorrect to state that four lakh trees are to be removed. Even for the above-referred number of trees, appropriate approvals were obtained from the District Green Committee by the District Collectors of Tiruppur and Erode for removing the same. As of now, the felling of trees has not commenced and the same would be done only after obtaining the approval from the competent authority. Therefore, the said issue is also answered accordingly.
Issue No.(iii):-
40. It is already found in Issue No.(i) that the bed concrete lining is proposed to the project only for a length of 23.84 Km in the upstream and downstream of the drainage culverts in the main LBP canal out of the length of 200 Km. Therefore, the question of plugging the seepage of water in the LBP canal does not arise. Besides, enjoying the seepage water cannot be claimed as a matter of right. The apprehension that the proposed scheme would deprive them of the right to claim of drinking water is also misplaced, as the Government has already implemented various drinking water schemes for the applicant panchayats and as such, the proposed project will not in any way affect their drinking water schemes. The learned counsel for the applicant strenuously argued that Vellode Bird Sanctuary which is located in Erode and abuts the ayacut area is declared as a Ramsar site under Section 27 (1) of the Wildlife (Protection) Act, 1972. As the Vellode is only a storage tank near about the tail Page 21 of 24 end of the ayacut, that is used to hold water for irrigating the adjoining agricultural fields and it is heavily dependent on supply from the LBP system. For any allocation of water from the LBP system to the Vellode MI tank, it is open to the Forest Department to approach the Water Resources Department. Hence, the issue is answered accordingly.
Issue No.(iv) and (v):-
41. The contention of the learned counsel for the applicant is that the authorities of the State are playing a dual role to protect environment and ecology under Article 48 A, as a representative of the State and as an individual under Article 51 A (g) of the Constitution of India. It is alleged that the action of the Project Proponent is in violation of the National Forest Policy, 1988 which directs States to grow trees out of forest areas to have an ecological balance. The same issue has already been answered in Issue No.(ii).
42. The respondent had categorically stated that neither Article 48 A nor Article 51 A (g) of the Constitution of India is applicable to the present case. It was argued that improving the efficiency of the irrigation canal by renovation and modernization of the canals is also the duty of the State. The State Government, based on the recommendation of the Expert Committee, has taken up the renovation and modernization of the LBP canal by removing the jungle growth and trees that are obstructing the free flow of water in the LBP canal and damaging the existing canal cannot be faulted with. As the project relates to the renovation and modernization of the LBP canal for the purpose of improving the system efficiency to ensure the tail end ayacutdars to get their rightful share of water, Article 48 A or 51 A (g) of the Constitution of India will have applicability. The applicant is trying to make out a case, as if a forest is involved in this case and that the same is being destroyed by the Project Proponent. Article 51 A (g) states that it shall be the duty of citizens to have compassion for living creatures. The object of enacting Article 51 A (g) and giving it a status of fundamental duty is to ensure that the spirit of Article 48 A is honoured as a Page 22 of 24 fundamental duty of every citizen. Article 51 A (g) of the Constitution of India indicates the fundamental duties of every citizen of the country one of them being to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. It is quite clear that apart from the natural law obligation to protect and preserve the environment, there is also a constitutional obligation to do so.
43. Though there is no pleading, an objection was raised on behalf of the applicant that the proposed project prevents the water source to the Vellode Bird Sanctuary. This issue was addressed in Issue No.(iii). The project has already been considered by the Chief Secretary to Government, State of Tamil Nadu and contends that it is absolutely necessary to renovate and modernize the LBP canal which has been in use since 1955.
There was also a direction given in W.P. Nos.19472 & 19458 of 2022 by the Hon‟ble High Court of Madras to the official respondents to complete the renovation and modernization of the LBP canal by implementing the G.O. The said order was taken on challenge before the Hon‟ble Supreme Court of India in SLP (C) Diary No.21775 of 2023 and the same was disposed of on 22.08.2023 with the following directions:-
"The order passed by the High Court on 31.03.2023 shall be placed before the NGT, Chennai Bench, which shall look into the same and the issuance of directions by the High Court would be so understood as not exempting the project from compliance of the applicable provisions of the environmental laws"
44. It is already found in Issue No.(i) that the LBP canal project does not require Environmental Clearance, as the project itself was commissioned in the year 1955 and the ongoing work is only renovation/modernization without change in the irrigation area. The Government which exists for the people has already considered the project of renovation of the existing canal and taken all the preventive and remedial measures. Therefore, there is no violation of Article 48 A and Article 51 A (g) of the Constitution of India. Hence, the issues are answered accordingly.
Page 23 of 2445. In view of the above findings, the challenges to the renovation and modernization project of the LBP canal undertaken by the Government pursuant to G.O. (Ms.) No.276 dated 09.11.2020 fails and the Original Applications [O.A. Nos.61 of 2022 (SZ) & 89 of 2022 (SZ)] are dismissed. The interlocutory application [I.A. No.109 of 2023 (SZ) in O.A. No.89 of 2022 (SZ)] is also closed accordingly.
46. The authorities are directed to complete the renovation work as expeditiously as possible.
Sd/-
Smt. Justice Pushpa Sathyanarayana, JM Sd/-
Dr. Satyagopal Korlapati, EM Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.89/2022(SZ) I.A. No.109/2023 (SZ) & O.A. No.61/2022(SZ) 28th August, 2024. Mn.
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