National Green Tribunal
Thenkeeranur Vivasayigal Nala Sangam, ... vs Ministry Of Environment, Forest And ... on 18 February, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.8:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 45 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Thenkeeranur Vivasayigal Nala Sangam
Rep. by its Secretary G. Srinivasan
Thenkeeranur Village,
Villupuram District, Tamil Nadu.
... Applicant(s)
Versus
Union of India,
Rep. by its Secretary to Government,
Ministry of Environment and Forest,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi & Ors.
...Respondent(s)
Date of hearing: 18.02.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): Mr. S. Sai Sathya Jith.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1.
Dr. V.R. Thirunarayanan for R2 , R3, R8 to R10.
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Mrs. P.T. Ramakumar for R4 to R6.
Mr. C. Kasirajan through
Ms. Kothai Muthu Meenal for R7.
ORDER
1. The grievance in this application is regarding construction of railway line and railway station at Kallakurichi along Kaniyamoor Eri. It was alleged in the application that earlier, the applicant filed Original Application No.193 of 2013 before this Tribunal in respect of construction of railway line and railway station at Kallakurichi and on the Thenkeeranur Lake. He had also filed writ petition before the Hon'ble High Court against the same project and the same were disposed of directing the Government to consider the grievance of the farmers. The applicant projects themselves as a person fighting for the cause of downtrodden and also protecting the environment before several forums. The present water body namely, Kaniyamoor Eri is situated in Sy.No.72/4 in Kaniyamur Village having an extent of 102 Acres (41.37.0 Hectares) which acts as a water source for agricultural purpose and also for drinking purpose in that area. The present project is part of a larger railway project of constructing a broad gauge line between Chinna Salem and Kallakurichi. The original project was initially sanctioned with a plan of the year 2005. 2 The said plan had a railway alignment at a different location skipping major water bodies and lakes. However, the plan was modified in the year 2008 and that is being currently implemented by them. The 2008 alignment of railway line has en-route several water bodies, tanks, wells, etc. and that was agitated against by the applicant and other public as evidenced by annexure-1.
2. The broad gauge line which is proposed to be constructed is passing through the Eri covering an extent of 0.58.50 Hectares. The proposed construction of permanent wall boundary of 212 meters on one side and 264 meters on the other side, both on length wise having an elevation of 2.7 meters and tenders were quoted for this purpose on 11.11.2016.
3. According to the applicant, the present mode of construction would disrupt the lake and prohibit the free flow of water and thus result in complete irreparable damage to the lake. Further, according to the applicant, as per the original approved construction of railway line by the Public Works Department (PWD), there was no formation of the bund as proposed now which is evidenced from the RTI Reply obtained from the PWD produced as Annexure-5. Now this has been changed further and they have not obtained any Environmental 3 Clearance (EC) from the authorities as required under EIA Notification, 2006 and other environmental laws.
4. In an earlier proceedings in respect of certain railway project, this Tribunal in O.A. No.193 of 2013 dated, 07.08.2015 held that such project requires Environmental Clearance (EC) and restrained the Southern Railways from constructing terminal railway station at Kallakurichi on any part of Thenkeeranur Lake and also restrained from bisecting the lake by forming bunds or raising culverts for laying railway line but shall lay railway line in the cross section of the lake by providing necessary railway bridge or by any other necessary construction, ensuring free flow of water, in order to maintain the water level on all sides alike. The Public Works Department (PWD) was also restrained from making transfer or allowing conversion in any part of the said water body to the respondents 4 & 5 namely, Southern Railways beyond 0.31.5 Ha which has already been transferred for laying the railway line. The respondents 4 & 5, Southern Railways was directed not to commence or execute the project without obtaining prior Environmental Clearance (EC) from the MoEF&CC or the SEIAA as the case may be and without obtaining all other necessary permission/consent from the authorities concerned as required by law.
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5. So, according to the applicant, construction itself was in violation of the directions given by this Tribunal in similar matter, as they are proceeding with the work without obtaining necessary Environmental Clearance (EC).
6. So, the applicant filed this application seeking the following reliefs:-
"(i) Permanently injuncting the respondents 4 to 7 from constructing a broad gauge railway line in Kaniyamur Eri at Sy. No.72/4, Kaniyamur Village in an extent of 0.58.50 Hectares.
(ii) Directing the respondents to maintain the Kaniyamur Eri at S.No.72/4 at an extent of 120 acres free any construction or encroachment in its pristine nature and pass such further or other orders in the interest of justice."
7. The 3rd respondent filed reply statement contending that the application is not maintainable. The applicant is one of the encroachers of the Eri Poramboke and the proposed railway alignment covers the land encroached by the applicant and some other wealthy pattadars of the village. In order to safeguard their interest and to evade eviction proceedings, application was filed before this Tribunal as O.A. No.193/2013 and this Tribunal by Judgment dated 07.08.2015, issued certain directions while disposing the matter.
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8. The 3rd respondent further contended that the railways department have no proposal to construct any permanent wall of the dimensions mentioned in the application. The laying of railway line will not obstruct the free flow of water in the water tank. They also assured that the wells will be protected by constructing RCC retaining wall wherever possible. They also mentioned that recommendations have been made for laying bridges by cement pillars where the water storage of lake is affected in Thenkeeranur Village Tank, whereas, the Kaniyamoor Tank proposed railway alignment passing only at the catchment area. There is no illegality in proceeding with the project and no Environmental Clearance (EC) is required and the railway administration has given undertaking to do everything in an environment friendly manner and strictly complying with the directions given by the National Green Tribunal. The applicants have filed this application before this Tribunal with mala-fide intention to protect their encroached area and they prayed for dismissal of the application.
9. The respondents 4 to 6 filed their reply affidavit contending that the application is not maintainable. The application has been filed by the persons who have encroached into the lake to the extent of about 8 Ha. of land in Kaniyamur Eri in Sy.No.72/2014, Kaniyamur Village, 6 Kallakurichi Taluk of Villupuram District and their interest is not to protect and safeguard the water body. The applicant had earlier filed O.A. No.193/2013 before this Tribunal pertaining to construction of railway line and railway station at Kallakurichi on the Thenkeeranur lake and this Tribunal had passed an order giving certain direction as per order dated 07.08.2015. The Kaniyamur Eri is situated in Sy.No.72/4 in Kaniyamur Village having an extent of 41.37 Ha. About 8 Ha of land were encroached by the relatives of G. Srinivasan. The new railway broad gauge track is not passing through the lake and there is no proposal to encroach the lake. It is passing at extreme end of Kaniyamur Eri western side of the lake towards NH-79 road. As per land plan schedule submitted to the District Collector, Villupuram, 0.0226 Ha. of Poromboke land is to be transferred to the railways for this project. The dispute area of land is not in the water storage location, it is far away from the water storage location and it is on the catchment area of the lake. The statement of the applicant that 0.58.50 Ha. area of land proposed for construction of new railway broad gauge line in the Kaniyamur Lake is not true but only 0.226 Ha. of land is proposed to be transferred from the Eri Poromboke land by Revenue Department for this purpose. The new broad gauge line was sanctioned between Chinna Salem and 7 Kallakurichi as material modification to the Gauge Conversation project of Cuddalore/Virudhachalam/Salem in the year 2006 based on reconnaissance Engineering and Traffic Survey 2005 (RET 2005). The railway officials have inspected the alignment suggested by RET 2005 along with the Revenue Department officials in the month of January, 2008. This project will benefit the public to get to be connected with the other nearby towns. Considering this aspect, the Government of Tamil Nadu has accorded administrative sanction as per G.O. Ms. No.III/Transport Department dated 12.06.2012 to acquire land and to transfer an extent of 52.84 Ha. of land for railway projects. The District Collector, Villupuram has also given necessary approval for implementation of this project based on the final location of Survey 2008 for convenience of the public and easy access to the proposed railway station. The Transport Department of the State Government have already deposited 64.49 crores towards 50% of the cost sharing of the project cost. The land plan Schedule was submitted to the District Collector, Villupuram on 19.03.2010 to acquire land as per Land Acquisition Act. The new proposed railway line alignment is not passing through the lake and the line is passing along the western bund of lake towards NH-79 road side and the railways department will not be forming a permanent bund through 8 the Eri. The extent of land required in Sy.No.72/4 is only 0.0226 Ha., not 0.58.50 Ha. and they have no proposal to construct any permanent wall of the dimension mentioned in the application. Tenders were called for with specification with construction of major bridge at a particular point and not in this area and the line is not passing through the lake and there is no possibility of disruption of free flow of water in this area. The dictum laid down in O.A. No.193/2013 is not applicable to the facts of this case as the Tribunal has observed in the Para 17 of the order that construction of railway station at Kallakurichi involves a built up area of more than 20,000 Sq.m. and as such EIA Notification, 2006 mandates, obtaining of prior Environmental Clearance (EC). In fact, the railway administration is entitled to construct or entitled to make any construction like bridges across the river, streams or other water courses and this exemption was granted to Railway Administration as per Section 11 of the Railways Act. The applicant has filed Writ Petition before the Hon'ble High Court as W.P. No.966 of 2016 challenging the land acquisition proceedings and the same is pending. In that proceeding, on the basis of the counter affidavit filed by the District Revenue Officer, Villupuram, the Hon'ble High Court by order dated 26.08.2016, directed the writ petitioner in that case to file an additional affidavit 9 as to the details of land holdings by each member of the petitioners' Association but they have not filed any additional affidavit so far. Further, the extent of construction that has been proposed for this project is less than 20,000 Sq.ms and as such this will not fall under the provision of the EIA Notification, 2006 and no Environmental Clearance (EC) is required. So, they prayed for dismissal of the application.
10. The 7th respondent filed reply affidavit contending that the Chief Engineer (Construction) Southern Railways and the Deputy Chief Engineer (Construction) Southern Railways were instructed vide Board's Letter dated 28.11.2015 and informed that this Tribunal has passed order dated 07.08.2015 made in O.A. No.193/2013 and directed not to proceed with the work without getting prior Environmental Clearance (EC). So, the Pollution Control Board has already informed the railways not to proceed with the work in view of the directions issued by this Tribunal in O.A. No.193/2013.
11. The 10th respondent filed counter denying the allegations that they are acting for the interest and safeguard of the farmers. The applicant is the Secretary of Thenkeeranur Vivasayigal Nala Sangam on a motive to protect the encroacher Srinivasan and other 10 encroachers of Kaniyamur Village has filed this application. The earlier applicant filed the application in the same name before this Tribunal as O.A. No.193/2013 was disposed with certain directions to be carried out by the railway administration while proceeding with the railway project. They also filed writ petition before the Hon'ble High Court of Madras as W.P. No.966 of 2016 and the same was disposed of with direction to the writ petitioner to approach this Tribunal, if he was of the opinion that the directions were violated and it is thereafter that the present application has been filed by the applicant. The Kaniyamoor Eri is situated in Sy.No. 72/4 and the extent is 41.37.0 hectare and the acquired extent is 71.62.0 hectare. An extent of 0.60.5 hectare of Eri Poramboke land was ordered to be transferred and handed over to the Southern Railways as requested by them. The land that has been handed over to the railways is not a water storage area, it is only a catchment area. The railway broad gauge track is proposed through the extreme western end of Kaniymoor Eri and the same is far away from the water storage location. The railway authorities assured that the project will not affect the water flow or the lake and water sources will be protected. The Kaniyamoor Village Panchayat in their board resolution in No.17/2010 granted no objection for the construction of railway 11 track through Eri Poromboke of Kaniymoor Village. If any of the panchayat member had any negative opinion about the railway project, they would have expressed their concern and they would have not granted the No Objection Certificate. The proposed railway alignment covers the lands under encroachment of petitioner and some other wealthy pattadar of the village. In order to safeguard himself and to evade eviction proceedings, the applicant has filed O.A. No.193/2013 and also the present application. The railway has filed reply affidavit before this Tribunal that the nature of construction alleged by the applicant in the application is not correct and they have no intention to make such construction affecting the flow of water body. The report submitted by the Deputy Chief Engineer also shows that there is no possibility of disruption of free flow of water. The dictum laid in the decision in O.A. No.193/2013 is not applicable to the facts of this case and none of the directions were violated. The railways are exempted from obtaining clearances and the applicant is not entitled to get any of the reliefs claimed. So, they prayed for dismissal of the application.
12. The 6th respondent filed status report as directed by this Tribunal by order dated 25.02.2020, wherein, they have stated that the proposed project was having a distance of 16 Kms in the year 12 2006 at initial cost of Rs.38.91 Crores and now it has been revised to Rs.116 Crores (appox.) The work was commenced in the year 2017 and till then 20% of the work of Rs.7 Crores (approx.) has been completed and this was done through the Government poramboke and railway poramboke lands were available. Construction of major bridges, earthwork in forming bank along the alignment is in progress in between Chinna Salem and Kallakurichi. At Kaniyamoor Eri the location which is the subject matter in this application, the work has not yet been commenced. Inside this tank it is proposed to lay railway track for only 50 to 150 mts (appox.) at chainage railway Km 5650-5700. In this tank railway track will be laid by constructing a balancing culvert of 1x4.5 m width and 5m height to ensure free flow of water on both sides below the track. So, the apprehension of the applicant that it is likely to affect the free flow is without any basis and unsustainable. The directions given by this Tribunal in O.A. No.193/2013 will be followed, at the time of executing the work in Thenkeeranur Tank. The attempt of the applicant is only to scuttle the project. Necessary amounts have been deposited before the District Collector, Villupuram for the purpose of making acquisition. Since the proposed project is only less than 20,000 Sq.m. viz., 9334 13 Sq.m., there is no necessity for obtaining Environmental Clearance (EC) for this project.
13. When the matter came up for hearing today through Video Conference, Mr. S. Sai Sathya Jith represented the applicant. Mr. G.M. Syed Nurullah Sheriff represented 1st respondent, Dr. V.R. Thirunarayanan represented respondents 2, 3, 8 to 10, Mr. C. Kasirajan through Ms. Kothai Muthu Meenal represented 7th respondent and Mr. P.T. Ramkumar represented respondents 4 to 6.
14. The grievance in this application is regarding the construction of broad gauge railway line through the Kaniyamoor Eri, affecting its free flow of water. It is alleged by the applicant that the proposed construction is against the directions issued by this Tribunal in O.A. No.193 of 2013 in respect of similar project without getting Environmental Clearance (EC) and without complying with the directions of constructing bridges instead of making construction affecting the flow of water in the water bodies.
15. On the other hand, the learned counsel appearing for the Southern Railways submitted that in respect of the project in question in O.A. No.193/2013 is concerned, they will strictly abide by the direction issued by this Tribunal when that project is being 14 implemented. As far as this project is concerned, they have no intention to draw the railway line through water body but they intend to have the construction of the railway line only on the side of the water body which is only the catchment area and not the water storage area. Further, they have no intention to construct any permanent walls of the dimension mentioned by the applicant in the application.
16. However, considering the circumstances, it is necessary to ascertain the location where the construction is going to be made and also whether the proposed construction of the railway line through the proposed area will have any impact on the water body and whether any modifications are required, even if the project is permitted to be carried out are all the questions to be considered by this Tribunal. As regards the Environmental Clearance (EC) is concerned, in the earlier case, since the construction area was more than 20,000 Sq.m., the Tribunal came to the conclusion that prior Environmental Clearance (EC) is required in that case. But as regards this case is concerned, the railway department had filed their status report stating that the proposed construction area is only 9,334 Sq. M. which includes the entire project which is subject matter in this case and as such no Environmental Clearance (EC) is required. 15
17. However, in order to ascertain these facts, we feel it appropriate to appoint a Joint Committee comprising of (1) the District Collector, Kallakurichi District, (as the area now falls in Kallakurichi District) (2) the Executive Engineer, Vellaru Irrigation Division, (3) the Executive Engineer from the Irrigation Department of concerned area, (4) the Superintending Engineer of Public Works Department (PWD) who is in-charge of that area and (5) a Senior Officer from the Ministry of Environment, Forests & Climate Change (MoEF&CC), Regional Office, Chennai to inspect the area in question and consider the project in detail and submit a report to this Tribunal as to whether the Environmental Clearance (EC) is required or not for this project, whether the proposed construction will obstruct the free flow of water in the water body in question viz., Kaniyamoor Lake and whether there is any modification required, if they feel that it is likely to affect the ecology of the lake, if the project has to be proceeded with.
18. The committee is also directed to go into the question as to whether any portion of the lake is encroached by the applicants or their relatives through which the project is likely to be commissioned.
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19. The concerned Chief Engineer (Construction) of Southern Railways is permitted to assist the committee by producing necessary documents and giving necessary details required by them for the purpose of preparing the report as directed by this Tribunal.
20. The Public Works Department (PWD) will be the nodal agency for co-ordination and also for providing all necessary logistics for this purpose.
21. The District Collector, Kallakurichi District is directed to co- ordinate with the members of the committee and give necessary instructions to carry out the work in an effective manner and also in a time bound manner to file a report to this Tribunal as the matter is pending before this Tribunal since 2017 onwards.
22. The applicant is directed to produce the set of papers to the committee members within a week so that they can comply with the direction without delay.
23. The committee is directed to submit the report to this Tribunal on or before 26.03.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules. 17
24. The Registry is directed to communicate this order to the members of the committee and also to the official respondents by e- mail immediately so as to enable them to comply with the direction.
25. For consideration of report, post on 26.03.2021.
Sd/-
............................................J.M. (Justice K. Ramakrishnan) Sd/-
.....................................E.M. (Shri. Saibal Dasgupta) O.A. No.45/2017, 18th February, 2021. Mn.
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