{"id":210203,"date":"2010-05-20T00:00:00","date_gmt":"2010-05-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/conservation-of-nature-trust-vs-the-director-on-20-may-2010"},"modified":"2016-05-06T07:16:21","modified_gmt":"2016-05-06T01:46:21","slug":"conservation-of-nature-trust-vs-the-director-on-20-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/conservation-of-nature-trust-vs-the-director-on-20-may-2010","title":{"rendered":"Conservation Of Nature Trust vs The Director on 20 May, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Conservation Of Nature Trust vs The Director on 20 May, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 20\/05\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA\nand\nTHE HONOURABLE MS.JUSTICE K.B.K.VASUKI\n\nW.P.(MD)No.11850 of 2009\nW.P.(MD)No.4406 of 2009\nand\nW.P.(MD)No.3913 of 2009\nand\nM.P.(MD)Nos.1,1, 2,2 & 2 of 2009\n\nW.P.(MD)No.11850 of 2009\n\n1. Conservation of Nature Trust,\n    Represented by its Chairman,\n    Dr.R.S.Lal Mohan.\n\n2. Kanyakumari District Boomi Pathukappu\n      Sanga Koottamaipu (Reg.No.37\/88),\n    Represented by its President Mr.Padmadhas.\n\n3. Regulator Channel Water User's Association\n    Represented by its Secretary S.Narayanasamy.     .. Petitioner\n\n\nvs\n\n1. The Director,\n    National Highways Authority of India,\n    G5 and 6, Sector 10,\n    Dwaraka, New Delhi.\n\n2. The Project Director,\n    National Highways Authority of India,\n    NHA-14, Kamaraju Nagar 1st Street,\n    Travellers Bungalow Road,\n    Valliyoor, Tirunelveli-627 117.\n\n3. The District Collector,\n    Kanyakumari District.\n\n4. The Environmental Engineer,\n    Pollution Control Board,\n    Kanyakumari District. \t\t\t.. Respondents\n\n \t\nWrit Petition filed under Article 226 of the Constitution of India for\nissuance of a Writ of Mandamus forbearing the respondents from laying any road\nin Narikulam irrigation tank comprised in Re-Survey No.351, having an extent of\n27.96.5 hectares of land equivalent to 73 acres of water spread area situated in\nKanyakumari Village, Agastheeswaram Taluk, Kanyakumari district, detrimental to\nthe ecology and environment.\n\nW.P.(MD)No.4406 of 2009\n\nMahadanapuram Grama Samudayam,\nMahadanapuram Post,\nKanyakumari District,\nRep. by its Managing Trustee Mr.V.Gopalakrishnan    .. Petitioner\n\n\t\t\t\t\t\nvs\n\n1. The Collector,\n    Kanyakumari District.\n\n2. The District Revenue Officer,\n    Kanyakumari District.\n\n3. The Revenue Divisional Officer,\n    Kanyakumari District.\n\n4. The Tahsildar,\n    Agasteeswaram Taluk,\n    Kanyakumari District.\n\n5. Project Director & PIU Kanyakumari,\n    NHA-14, Kamaraju Nagar 1st Street,\n    Travellers Bungalow Road,\n    Valliyoor, Tirunelveli-627 117.\t\t\t\t.. Respondents\n\n \t\nWrit Petition filed under Article 226 of the Constitution of India for\nissuance of a Writ of Mandamus forbearing the respondents in any manner entering\nfor the purpose of laying road or for any purpose in the land in Survey No.1531\n(New Survey No.351) Mahadhanapuram Village, Agasteeswaram Taluk, Kanyakumari\nDistrict.\n\n!For Petitioners  \t    ... Mr.T.Arul\nin W.P.(MD)11850\/09\n\nFor Petitioner \t            ... Mr.K.Srinivasan\nin W.P.(MD)4406\/09\n\n^For Respondents 1 & 2      ... Dr.R.Rajagopal\nin W.P.(MD)11850\/09 and\nR5 in W.P.(MD)4406\/09\n\nFor Respondent 3  \t    ... Mr.R.Janaki Ramulu,\nin W.P.(MD)11850\/09 and \tS.G.P.\nR1 to R4 in W.P.(MD)4406\/09\n\nFor Respondent 4  \t    ... Mr.R.Ramanlal,\nin W.P.11850\/09\t\t\n\n- - - - -\n\n:COMMON ORDER\n\n\nF.M.IBRAHIM KALIFULLA,J.\n<\/pre>\n
\t\tW.P.(MD)Nos.3913 and 4406 of 2009 have been preferred by
\nMahadanapuram Grama Samudayam, represented by its Managing Trustee
\nMr.V.Gopalakrishnan, hereinafter, referred to as Mahadanapuram Grama Samudayam.
\nW.P.(MD)No.11850 of 2009, is a Public Interest Litigation and has been preferred
\nby three so called public spirited institutions.\n<\/p>\n
\t\t2.Writ Petition in W.P.(MD)No.3913 of 2009, has been preferred by
\nMahadanapuram Grama Samudayam challenging the order of the District Revenue
\nOfficer, Kanyakumari dated 22.04.2009, by which the earlier order of the
\nAssistant Director of Settlement and Survey, Madurai dated, 28.03.1994, was set
\naside in order to maintain the classified water body called Narikulam Tank in
\nAgastheeswaram Taluk, situated in old Survey No.1531 (New Survey No.351) in an
\nextent of 27.96.5 hectares recorded as ‘Kulam Poramboke’  in the Re-settlement
\nRegister and by rejecting the application of the Mahadanapuram Grama Samudayam
\ndated 12.05.2008, for implementing the order of the Assistant Director of
\nSettlement dated 28.03.94.\n<\/p>\n
\t\t3.In W.P.(MD)No.4406 of 2009, the very same Mahadanapuram Grama
\nSamudayam seeks for issuance of a writ of Mandamus to direct the respondents
\nfrom in any manner entering into the Narikulam Tank in S.No.1531 (New S.No.351)
\nof Mahadhanapuram Village for the purpose of laying of four lane road by the
\nProject Director of National Highways Authority of India.\n<\/p>\n
\t\t4.in the Public Interest Litigation in W.P.(MD)No.11850 of 2009 also
\nthe petitioners pray for the issuance of a writ of Mandamus forbearing the
\nrespondents from laying any road in Narikulam irrigation tank comprised in Re-
\nsurvey No.351 of Agastheeswaram Taluk, Kanyakumari District.\n<\/p>\n
\t\t5.The grievance of the Mahadanapuram Grama Samudayam in
\nW.P.(MD)No.3913 of 2009 is personal in as much as its main grievance is as
\nregards the cancellation of the order of the Assistant Director of Settlement
\nand Survey, Madurai dated 28.03.1994, in and by which there was a direction to
\nissue patta in favour of  Mahadanapuram Grama Samudayam in an extent of 27.96.5
\nin S.No.1531 under Sections 9(1) and 17 of Tamil Nadu (Transferred Territory)
\nRyotwari Settlement Act, 1964 (T.N.Act30\/1964). As far as the challenge made to
\nthe order of the District Revenue Officer, Kanyakumari District, dated
\n22.04.2009, in proceedings No.M.4\/48631\/2008 is concerned, the same can be
\nindependently examined while dealing with the said writ petition on merits by
\nthe appropriate learned single Judge.\n<\/p>\n
\t\t6.However, while challenging the order of the second respondent
\ndated 22.04.2009, an interim order came to be passed by which the order of the
\nsecond respondent dated 22.04.2009, was stayed by an order dated 30.04.2009.
\nSubsequently, when the very same petitioner Mahadanapuram Grama Samudayam sought
\nfor issuance of Mandamus to forbear the respondents from laying any road in
\nNarikulam Tank, the interim order came to be passed to the following effect:
\n\t“It is contended by the learned counsel for the petitioner that on the
\nbasis of the order of DRO classifying the land as Kulam Poramboke, the
\nrespondents are trying to lay a road in that land and they have no right to do
\nso.  As the order of the DRO is challenged in WP(MD)No.3930 of 2009 and interim
\nstay was granted, I am inclined to grant an order of injunction as prayed for.”\n<\/p>\n
\t\t7.The injunction prayed for was to restrain the respondents from in
\nany manner  laying any road in the land in S.No.1531 (R.S.No.351) in
\nMahadanapuram Village in Kanyakumari District pending disposal of the writ
\npetition in W.P.(MD)No.4406 of 2009.  Therefore, the said writ petition was also
\ntagged  along with W.P.(MD)No.4406 of 2009.  Since the prayer in
\nW.P.(MD)No.11850 of 2009, is also to restrain the respondents from laying any
\nroad in R.S.No.351 in respect of the very same Narikulam Tank, the said writ
\npetition was also posted along with W.P.(MD)No.4406 of 2009.\n<\/p>\n
\t\t8.At the very outset, we wish to make it clear that at present we
\nonly deal with the issue as to whether the attempt of the Project Director of
\nNational Highways Authority of India to lay a road across the Narikulam Tank can
\nbe permitted in public interest.  As far as the claim of the Mahadanapuram Grama
\nSamudayam of its rights in respect of the Narikulam Tank in
\nS.No.1531(R.S.No.351) of Mahadanapuram Village based on an earlier order of the
\nAssistant Director of Settlement and Survey, Madurai dated 28.03.1994, and its
\nchallenge to the order of the DRO dated 22.04.2009, it can be independently
\ndealt with in W.P.(MD)No.3913 of 2009, by the appropriate learned single Judge.
\nTherefore, the said writ petition is delinked from this proceedings and the
\nRegistry is directed to post the writ petition in the usual course.\n<\/p>\n
\t\t9.Having considered the challenge made in W.P.(MD)Nos.4406 and 11850
\nof 2009, the brief facts which are required to be stated are that the Narikulam
\nTank as per the Memorial maintained in the revenue records discloses that the
\nsaid tank is situated about 3.5 kilometres north of No.1 Kanyakumari village in
\nthe Agestheeswaram taluk.  The source of supply to the said tank is from its
\nfree basin besides the surplus of two upper tanks namely Bhagavathi Vinayagar
\nKulam and Perumal Kulam as well as N.P.channel.  The bund of the tank is 1090
\nmeters long and there is no vegetation on the bund.  The registered ayacut for
\nthe said water body is 51.885 hectares for single crop as well as  double crop
\nrespectively.  The average cultivation of single crop is stated to be in 41.51.0
\nhectares and double crop is of 51.88.5 hectares.  The area of the tank is
\n279,000 square meter.  The tank is approximately 965 meters long, 360 meters
\nwide and the total extent of the tank is 27.96.5 hectares.\n<\/p>\n
\t\t10.The Narikulam tank falls within the Panagudi-Kanniyakumari
\nstretch where the work of 4\/6 laning road was being laid by the National
\nHighways Authority of India hereinafter called as NHAI.  According to the NHAI,
\nthe said Narikulam tank having been classified as Government Poramboke and in
\nthe possession of Executive Engineer, WRO, PWD, Kodayar Basin Division,
\nNagercoil to maintain and administer the tank and that  the said lands required
\nfor laying the road was to be transferred in favour of the NHAI by way of
\nalienation process.  It is further contended that the existing alignment of NH-7
\nfrom km221\/0 to km231\/600 is passing through the villages enroute such as
\nKarungulam, Levinjipuram, Anjugramam, Leepuram, Paulkulam and Kanniyakumari with
\nthe existing right of way varying from 15m to 18m only and buildings abutting on
\neither side and that in order to avoid demolition of habitation buildings, it
\nwas proposed to provide bypasses for the above places which passes through the
\nwet lands in a straight alignment for a width of 60m before crossing the
\nNarikulam tank.\n<\/p>\n
\t\t11.It is further contended that it was unavoidable as per the DPR
\nplan approved by the Government of India and that out of the total extent of
\n27.96.5 hectares of tank land, an extent of 3.0 hectares are subjected to
\nalienation process for the proposed 4-lane project of North-South Corridor.  It
\nis also contended that the capacity of the tank will not be affected on that
\naccount as it has been proposed to deepen the tank bed and raise the height of
\nthe bund due to the passing of the road through this tank.  It is also stated
\nthat inside the tank, it is proposed to provide two balancing minor bridges each
\nof 10m width to allow water to pass from one side to other.  It is also stated
\nthat a sum of Rs.95.18 lakhs has been sanctioned consisting of 6 nos. of
\nestimates including the restoration of Narikulam tank in R.S.No.351 of
\nKaniyakumari village to bring the tank to its original capacity by deepening the
\nfore-shore area of the tank for maintaining the actual capacity which would be
\naffected due to the passing of the National Highway alignment and also to
\nstrengthen the tank bund.  The sanctioned amount pertaining to Narikulam tank
\nalone was stated to be Rupees thirty lakhs which was also remitted along with a
\nletter dated 12.07.2007, by the NHAI.\n<\/p>\n
\t\t12.It is further stated that the Executive Engineer WRO, PWD,
\nKodayar Basin Division, Nagercoil through his letter dated 07.05.2009, stated
\nthat the work was also completed and the total amount utilised for the said
\npurpose was Rs.22,74,976\/- and necessary utilization certificate was also stated
\nto have been issued.  It is contended that the project being a national level
\nproject and the work having been commenced already any further obstruction with
\nthe work will cause serious prejudice to the public at large.\n<\/p>\n
\t\t13.While that being the stand of the NHAI, the first petitioner in
\nW.P.(MD)No.11850 of 2009, represented by its Chairman one Dr.R.S.Lal Mohan who
\nis stated to be former Principal Scientist of Indian Council of Agricultural
\nResearch in his affidavit sworn to in support of the said writ petition apart
\nfrom referring  to his credentials has claimed that he had involved himself in
\nvarious projects for protecting and conserving the nature and natural resources,
\nthat the sole aim of the petitioner’s association is to protect the environment
\nand in particular the important water bodies such as Narikulam which cannot be
\nallowed to be obliterated  by causing any damage to the said water body.  While
\ndetailing the geographical location of the said tank, the deponent by referring
\nto the total extent and coverage of the tank has stated that the said tank is
\none of the biggest water bodies having large water spread area to conserve water
\nfor one calendar year compared to other minor water bodies in the district.  He
\nwould state that the said tank caters to the needs of three Panchayats
\ncomprising nearly 10 villages and the water is  extracted for drinking purposes
\nonly from that tank.  He would also state that it is the major irrigation tank
\nin Kanyakumari district covering  ayacut area of not less than 240 acres of
\npaddy cultivation and that the said water body also maintains the ground water
\nsource in that area.\n<\/p>\n
\t\t14.He would claim that the water table and the aquifers within the
\nvicinity of 6 kilometres radius exist due to the presence of the tank and it is
\nsituated in an important geographical location in safeguarding the ecology and
\nenvironment of that part of the district.\n<\/p>\n
\t\t15.He would also state that due to the presence of the western ghats
\nin the Kanyakumari district, the landscape is a fertile sloping land from the
\nwestern ghats towards the sea covering a distance of about 35 kilometres and
\nthat due to the steep west east gradient the rain water flows faster and joins
\nthe sea.  According to the deponent, to check the flow of rain water into the
\nsea, the Pandya, Chola and Chera kings including Naiker kings of yesteryears who
\nruled the area 1500 years before had a wider vision and made tanks of various
\nsize as water harvesting systems to capture the rain water and use it for
\nirrigation and that after the said era no new water bodies were created while
\nattempts were calculatively made only to obliterate the existing water bodies.
\nHe also pointed out that Narikulam tank is situated near Kanyakumari sea coast
\nwithin three kilometre radius from the sea and that because of the peculiar
\ntopography the land mass in this peninsular area is very meager and the storage
\nof water is therefore of much significance in the particular landscape where the
\ntank is situated.\n<\/p>\n
\t\t16.He also pointed out that the presence of the tank also serves as
\nan embankment of the percolation of saline sea water towards the landward side,
\nin the absence of which the saline sea water would seep through the land.  It is
\nalso contended that since the tank is situated 60 to 50 feet above the sea level
\nthe fresh ground water from the higher plains would also flow to the lower level
\nand thereby the surrounding coastal villages will get fresh water and the
\nincursion of salinity is prevented.\n<\/p>\n
\t\t17.It is further pointed out that existence of major water  body
\nlike  Narikulam  serves  as  a  protected  fresh water storage facility for the
\nvillages surrounding that area.  It is also stated that agricultural operation
\nbeing the backbone of Kanyakumari district, the ponds and other water bodies
\nserve as essential ingredients for recharging the aquifers, serves as the buffer
\nzones during floods and thereby serves the inhabitants from draughts and
\nmoderating the climate during summer.  It is also claimed that  as a fertile
\nrice producing fields, it is instrumental in providing habitants with the
\ndrinking water and also keeping the aesthetic beauty of the district.\n<\/p>\n
\t\t18.By referring to 1962 census of Kanyakumari District, the deponent
\nwould contend that the district had more than 3500 tanks and within a period of
\n40 years about 1000 tanks were obliterated  and as per 1998 census the number of
\nexisting tanks are 2447.   By referring to the paddy production in the district,
\nhe pointed out that the production capacity which was 3.2 lakhs metric tones in
\n1950 had come down to 1.2 lakh metric tones in 2008 and that the area of paddy
\ncultivation has come down from 53,034 hectares in 1975 to 22,000 hectares in
\n2008 and the main water table has gone down from 50 feet to 200 feet.\n<\/p>\n
\t\t19.Reliance has also been placed upon the report of detailed project
\nreport of one Engineer by name M.Ramasamy to the project report of NHAI, who in
\nhis report after conducting a detailed study and spot inspection suggested a
\nslight modification to the original proposal without disturbing the Narikulam
\ntank which was also favourably considered by the then Project Director of NHAI
\nwho in his communication dated 17.12.2004, to the Superintending Engineer,
\nTirunelveli forwarded the substance of the report of Mr.M.Ramasamy for necessary
\naction.  Based on the above averments, the petitioner in W.P.(MB)NO.11850 of
\n2009 would contend that the respondents should be prevented from proceedings
\nwith the idea of laying the road by obstructing the water tank Narikulam to the
\nextent of 540m of road which would   in course of time obliterate the tank and
\nconsequently the agricultural operations depending upon the tank would be
\nseriously affected.\n<\/p>\n
\t\t20.Mr.K.Srinivasan, learned counsel appearing for the petitioner in
\nW.P.(MD)No.4406 of 2009 and Mr.T.Arul, learned counsel appearing for the
\npetitioners in W.P.(MD)No.11850 of 2009 in their submissions contended that
\nhaving regard to the serious environmental impact that would be caused by the
\nlaying of the road across the Narikulam tank and in the light of the various
\ndecisions of this Court as well as the Hon’ble Supreme Court such a step at the
\ninstance of the NHAI should be prevented and instead the Project Director should
\nbe directed to resort to another alternative route and thereby protect the water
\nbody without any hindrance.\n<\/p>\n
\t\t21.In support of their submissions, they placed reliance upon the
\nDivision Bench decisions of this Court as well as Hon’ble Supreme Court reported
\nin 2010 Writ L.R.113 (T.S.Senthil Kumar Vs. The Government of Tamil Nadu &
\nOthers), (2008) 7 MLJ 876 (K.Balamurugan Vs. State of Tamil Nadu), AIR 2001 SC
\n3215 (Hinch Lal Tiwari Vs. Kamala Devi), (2007) 1 MLJ 124 (SC) (Susetha Vs.
\nState of Tamil Nadu), (2008) 1 MLJ 997 (SC) (T.N.Godavarman Thirumulpad Vs.
\nUnion of India, (1999) 2 SCC 718 (A.P.Pollution Control Board Vs.
\nProf.M.V.Nayudu) and (1997) 3 SCC 715 (M.C.Mehta Vs. Union of India)<\/p>\n
\t\t22.Having heard the learned counsel for the respective parties and
\nhaving perused the map showing the Narikulam tank and the proposed four lane
\nroad across the tank as well as the sketch disclosing the longitudinal section
\nin the Narikulam tank location with the cross section of the two proposed minor
\nbridges in the said tank and the other details about the area and the total area
\nof the Narikulam tank, the ayakut details and other particulars we find that the
\nproposed four lane road which cuts across the Narikulam tank will virtually cut
\nthe tank into two halves.  In order to get a clear picture about the proposed
\nfour lane road across the tank, we deem it appropriate to annexe the above
\nreferred to map and the sketch disclosing the longitudinal section of the
\nproposed road as Annexures 1 & 2 to our order.\n<\/p>\n
\t\t23.To recapitulate the nature of the road construction to be made,
\nif we note down the details, we find that of the total tank area of 279,000
\nsq.mts, the proposed construction of the road would result in capacity reduction
\nin the tank area to an extent of 59,540.20 cubic meters.  The length of the road
\nis 550m while the breath of it would be 60m.  The net length of the road to be
\nconstructed would be 530m.  The total area of tank bed which would be used for
\nthe construction of the road would be 21,730 sq.mts which will be 7.79% of the
\ntank area. The road has been planned to be able to embankment in the tank area
\nwhich is trapezoidal in shape, 41m wide at bottom and 25m at the top of
\nembankment.  Embankment to be of 4m (approx.) high above the general tank bed
\nlevel (existing) and 1.37m above the maximum water level.\n<\/p>\n
\t\t24.Admittedly as the road would be dividing the tank into two, it is
\nproposed to provide two water ways across the road connecting the two parts of
\nthe tank each of 10m wide.  The consequent reduction in the capacity of the tank
\nbeing calculated at 59,540.20 Cu.m and in order to compensate the reduction in
\ntank volume caused by the road construction, the tank bed is stated to have been
\ndeepened by 0.50m and thereby provide for increase in the capacity of the tank
\nto 128,635 Cu.m.  According to the NHAI’s calculation by providing for such
\nincrease in the tank capacity by deepening the tank bed whatever loss that would
\nbe caused by laying of road across the tank would be sufficiently offset.\n<\/p>\n
\t\t25.On the above basis, the learned counsel for NHAI  contended that
\nwhen NHAI has planned to develop the existing two lane into four lane
\nconsidering the enormous increase in the mobility of heavy cargo vehicular
\ntraffic the public project should not be allowed to be stalled for the benefit
\nof few.  It is contended that the PWD of the State Government has taken care of
\nthe tank by attending to its day to day maintenance, that since the water
\nstorage capacity has been increased, the passing of NH-7 road through Narikulam
\nTank will not affect the irrigation of the cultivable lands as alleged by the
\npetitioners.  It is also contended that NHAI spent more than Rs.22 lakhs for
\ndeepening of the tank and also protect the water supply inhabitants of the area
\nand therefore the petitioner’s grievance have no basis.  On the other hand, it
\nwas contended that if the project is stalled, the same would cause serious
\nprejudice to the interest of the public at large.\n<\/p>\n
\t\t26.Even while considering such contentions raised on behalf of the
\nNHAI, we are of the considered opinion that having regard to the law laid down
\nby the Hon’ble Supreme Court which has been followed by the Division Bench of
\nour High Court, the Court should be slow in accepting such a stand raised on
\nbehalf of the NHAI when it comes to the question of affecting or likely to cause
\nany serious impact on the natural resources in particular such large water
\nbodies.  Having noted the extent of the area of water storage capacity of
\nNarikulam tank which is  965 meters long and 360 meters width covering an area
\nof 27.96.5 hectares, it will have to be held that when the project has been made
\nto cut the tank into two, the endeavour should be to find out whether instead of
\nallowing such a drastic step any other alternative method can be found out by
\nwhich while permitting the NHAI to proceed with the project of laying the road
\nacross the tank, the same can be done without in any manner affecting the
\npresent status of the water body or with any least disturbance.\n<\/p>\n
\t\t27.With that view, when we consider, we find that by directing the
\nNHAI to construct an over bridge for the entire stretch of 530m, the present
\nproblem of causing any destruction to the water body can be completely avoided.
\nIn that respect, the only contention of the the NHAI was that such a proposal
\nwould result in an additional cost of few crores.  If by spending few more
\ncrores the damage that would be caused to a prominent water body can be avoided,
\nin our view, it would be just and proper that NHAI should not mind spending few
\nmore crores than to divide the water body into two which, in our opinion, would
\nbe a destructive one and cannot be permitted to be made in the light of the
\nvarious principles laid down by the Hon’ble Supreme Court in various decisions.\n<\/p>\n
\t\t28.To support our conclusions, we feel it appropriate to refer to
\ncertain principles set down by the Hon’ble Supreme Court which were followed by
\nthe Division Bench of our High Court.  In the decision reported in  (1997) 3 SCC
\n715 (M.C.Mehta Vs. Union of India) the Hon’ble Supreme Court have stressed the
\nimportance of environmental protection and the preventive measures to be take in
\nmaintaining such surroundings in the following paragraphs viz.:
\n\t“6…..The functioning of ecosystems and the status of environment cannot
\nbe the same in the country.  Preventive measures have to be taken keeping in
\nview the carrying capacity of the ecosystems operating in the environmental
\nsurroundings under consideration.  Badkhal and Surajkund lakes are popular
\ntourist resorts almost next door to the capital city of Delhi.  We have to
\nrecord the Inspection Report in respect of these lakes by the National
\nEnvironmental Engineering Research Institute (NEERI) dated 20.04.1996 indicating
\nthe surroundings, geological features, land use and soil types and
\narchaeological significance of the areas surrounding the lakes. According to the
\nreport Surajkund lake impounds water from rain and natural springs.  Badkhal
\nLake is an impoundment formed due to the construction of an eastern dam.  The
\ncatchment areas of these lakes are shown in a figure attached with the report.
\nThe land use and soil types as explained in the report show that the Badkhal
\nLake and Surajkund are monsoon-fed water bodies.  The natural drainage pattern
\nof the surrounding hill area feed these water bodies during rainy season.  Large
\nscale construction in the vicinity of these tourist resorts may disturb the rain
\nwater drains which in turn may badly affect the water level as well as the water
\nquality of these water bodies.  It may also cause disturbance to the aquifers
\nwhich are the source of ground water.  The hydrology of the area may also be
\ndisturbed.\n<\/p>\n
\t7. The two expert opinions on the record – by the Central Pollution
\nControl Board and by the NEERI – leave no doubt on our mind that the large-scale
\nconstruction activity in the close vicinity of the two lakes is bound to cause
\nadverse impact on the local ecology.  NEERI has recommended green belt at one km
\nradius all around the two lakes.  Annexures A and B, however, show that the area
\nwithin the green belt is much lesser than one km radius as suggested by the
\nNEERI.\n<\/p>\n
* * * * *\n<\/p>\n
\t10…..The “Precautionary Principle” has been accepted as a part of the
\nlaw of the land.  Articles 21, 47, 48-A and 51-A(g) of the Constitution of India
\ngive a clear mandate to the State to protect and improve the environment and to
\nsafeguard the forests and wildlife of the country.  It is the duty of every
\ncitizen of India to protect and improve the natural environment including
\nforests, lakes, rivers and wildlife and to have compassion for living creatures.
\nThe “Precautionary Principle” makes it mandatory for the State Government to
\nanticipate, prevent and attack the causes of environment degradation.  We have
\nno hesitation in holding that in order to protect the two lakes from
\nenvironmental degradation it is necessary to limit the construction activity in
\nthe close vicinity of the lakes.”\n<\/p>\n
\t\t\t\t     (Emphasis added)<\/p>\n
\t\t29.In the decision reported in (1999) 2 SCC 718 (A.P.Pollution
\nControl Board Vs. Prof.M.V.Nayudu) the Hon’ble Supreme Court have made a
\nspecific reference to Principle No.15 of the U.N.General Assembly Resolution on
\nWorld Charter for Nature, 1982, where the emphasis shifted to the precautionary
\nprinciple which was reiterated in the Rio Conference of 1992 in its Principle
\n15, which has also made a reference to an article by Charmian Barton which has
\nbeen set out in paragraph 33 & 34 of the decision which are relevant for our
\npresent purpose, which can be usefully referred to:\n<\/p>\n
\t“33……Principle 15.– In order to protect the environment, the
\nprecautionary approach shall be widely applied by States according to their
\ncapabilities. Where there are threats of serious or irreversible damage, lack of
\nfull scientific certainty shall not be used as a reason for proposing cost-
\neffective measures to prevent environmental degradation.\n<\/p>\n
\t34. In regard to the cause for the emergence of this principle, Charmian
\nBarton, in the article earlier referred to in Vol.22
\nHarv.Envtt.L.Rev.(1998),P.509 at P.547 says:\n<\/p>\n
\t“There is nothing to prevent decision-makers from assessing the record and
\nconcluding that there is inadequate information on which to reach a
\ndetermination.  If it is not possible to make a decision with ‘some’ confidence,
\nthen it makes sense to err on the side of caution and prevent activities that
\nmay cause serious or irreversible harm.  An informed decision can be made at a
\nlater stage when additional data is available or resources permit further
\nresearch.  To ensure that greater caution is taken in environmental management,
\nimplementation of the principle through judicial and legislative means is
\nnecessary.”\n<\/p>\n
In other words, the inadequacies of science is the real basis that has led to
\nthe precautionary principle of 1982.  It is based on the theory that it is
\nbetter to err on the side of caution and prevent environmental harm which may
\nindeed become irreversible.\n<\/p>\n
* * * * *\n<\/p>\n
\t38. The precautionary principle suggests that where there is an
\nidentifiable risk of serious or irreversible harm, including, for example,
\nextinction of species, widespread toxic pollution in major threats to essential
\necological processes, it may be appropriate to place the burden of proof on the
\nperson or entity proposing the activity that is potentially harmful to the
\nenvironment. (See Report of Dr Sreenivasa Rao Pemmaraju, Special Rapporteur,
\nInternational Law Commission, dated 03.04.1998, para 61)”   (Emphasis added)<\/p>\n
\t\t30.In the decision reported in (2001) 6 SCC 496 (Hinch Lal Tiwari
\nVs. Kamala Devi) the Hon’ble Supreme Court stressed the need to maintain the
\nmaterial resource of the community like forests, tanks, ponds, hillock, mountain
\netc., which are stated to be nature’s bounty.  Paragraph 13 is relevant for our
\npurpose which reads as under:\n<\/p>\n
\t“13. It is important to notice that the material resources of the
\ncommunity like forests, tanks, ponds, hillock, mountain etc., are nature’s
\nbounty.  They maintain delicate ecological balance. They need to be protected
\nfor a proper and healthy environment which enables people to enjoy a quality
\nlife which is the essence of the guaranteed right under Article 21 of the
\nConstitution.  The Government, including the Revenue Authorities i.e.
\nRespondents 11 to 13, having noticed that a pond is falling in disuse, should
\nhave bestowed their attention to develop the same which would, on one hand, have
\nprevented ecological disaster and on the other provided better environment for
\nthe benefit of the public at large.  Such vigil is the best protection against
\nknavish attempts to seek allotment in non-abadi sites.”\n<\/p>\n
\t\t\t\t     (Emphasis added)<\/p>\n
\t\t31.In the decision reported in AIR 1996 SC 2715 (Vellore Citizents’
\nWelfare Forum Vs. Union of India) in paragraphs 11 and 12 the Hon’ble Supreme
\nCourt has concretized the vital principles of Sustained Development including
\nthe ‘Precautionary Principle’ and the ‘Polluter Pays Principle’.  The Hon’ble
\nSupreme Court made it clear that it is for the persons who want to carry on any
\nactivities which would endanger the environment should be made liable to make
\ngood the loss.  The Court held as under in paragraph 11:\n<\/p>\n
\t“11……The Precautionary Principle in the context of municipal law
\nmeans:\n<\/p>\n
\t(i) Environmental measures – by the State Government and the statutory
\nauthorities – must anticipate, prevent and attack the causes of environmental
\ndegradation.”\n<\/p>\n
\t\t32.In the decision reported in (2006) 3 MLJ 201 (SC) (Intellectuals
\nForum, Tirupathi Vs. State of A.P.) the Hon’ble Supreme Court once again
\nreiterated the constitutional mandate as enshrined under Article 48-A and 51-A,
\nwherein the State is mandatorily bound to protect and improve the natural
\nenvironment including forests, lakes, wildlife and to have compassion for living
\ncreatures.  The Hon’ble Supreme Court gave thrust to the accepted social
\nprinciple that all human beings have a fundamental right to a healthy
\nenvironment, commensurate with their well-being, coupled with a corresponding
\nduty of ensuring that resources are conserved and preserved in such a way that
\nthe present as well as the future generations are ensured of its maintenance and
\nprotection.\n<\/p>\n
\t\t33.In an earlier decision of the Hon’ble Supreme Court reported in
\n(1991) 2 SCC 539 (Dahanu Taluka Environment Protection Group Vs. Bombay Suburban
\nElectricity Supply Co.Ltd.) the Hon’ble Supreme Court expressed its views as
\nunder in paragraph 84:\n<\/p>\n
\t“84.The world has reached a level of growth in the 21st century as never
\nbefore envisaged. While the crisis of economic growth still on, the key question
\nwhich often arises and the Courts are asked to adjudicate upon is whether
\neconomic growth can supersede the concern for environmental protection and
\nwhether sustainable development which can be achieved only by way of protecting
\nthe environment and conserving the natural resources for the benefit of humanity
\nand future generations could be ignored in the grab of economic growth or
\ncompelling human necessity….”\n<\/p>\n
\t\t34.The above referred to decisions have been extensively quoted by
\nthe Division Bench of our High Court in the decision reported in (2008) 7 MLJ
\n876 (K.Balamurugan Vs. State of Tamil Nadu) and the Division Bench has culled
\nout the principles from the various decisions of the Hon’ble Supreme Court in
\nparagraph 36 which is to the following effect:\n<\/p>\n
\t“36. On an analysis made from the above decisions, we find that the
\nfollowing principles have to be kept in mind while dealing with the issue
\nrelating to environmental protection viz.,<\/p>\n
\t(i) Natural resources which includes lakes, forests, rivers, wildlife are
\nheld by the State as a trustee of the public and can be disposed of only in a
\nmanner that is consistent with the nature of such a trust.\n<\/p>\n
\t(ii) The public trust doctrine is more than an affirmation of State power
\nto use public property for public purposes.\n<\/p>\n
\t(iii) The Courts when confronted with a situation where violation of such
\npublic trust doctrine is put against the State, the Courts while scrutinising
\nsuch actions of the State, have to make a distinction between the State’s
\ngeneral obligation to act for the public benefit, and the special obligation
\nwhich is entrusted with it as a trustee of such public resources.\n<\/p>\n
\t(iv) The three types of restrictions on Governmental authority as stated
\nby Prof.Sax, assumes significance which are as follows:\n<\/p>\n
\t(a) The property subject to the trust must not only be used for a public
\npurpose, but it must be held available for use by the general public;\n<\/p>\n
\t(b) The property may not be sold, even for fair cash equivalent;\n<\/p>\n
\t(c) The property must be maintained for particular types of use (i) either
\ntraditional uses, or (ii) some uses particular to that form of resources.\n<\/p>\n
\t(v) The Court has to strike a balance between sustainable development and
\nenvironment protection.”\n<\/p>\n
\t\t35.In this context, it will be appropriate to refer to the
\nnotification of the Union Government on Environmental Impact Assessment.  The
\nfirst one was dated 27.01.1994, and the subsequent notification was published
\non 14.09.2006.  In the 1994 Notification the list of jobs that required
\nenvironmental clearance from the Central Government have been set out in the
\nSchedule 1 of the Notification and under Sl.No.2(i) it has been listed.  In
\nparagraph 1 of the Notification dated 27.01.1994, it has been specifically
\nprovided that by virtue of Section 3(2) (i) to (v) of the Environment
\n(Protection) Act, 1986 read with the relevant rules on and from the date of
\npublication of the said notification no new projects listed in Schedule 1 to the
\nnotification can be undertaken in any part of India unless it has been accorded
\nenvironmental clearance from the Central Government.  In Serial No.21 of
\nSchedule-I, Highway Projects  is one of the items for which such clearance is
\nmandatorily required.  In our considered opinion, the 4\/6 lane projects
\nundertaken by the NHAI cannot fall under any of the exceptional categories of
\nthe said item.\n<\/p>\n
\t\t36.In the subsequent notification dated 14.09.2006, it is
\nspecifically mandated that all new projects or activities listed in the schedule
\nto the Notification requires prior environmental clearance from the concerned
\nregulatory authority.  In the list of projects required prior environmental
\nclearance, under clause 7(f) both new National Highway and expansion of National
\nHighways greater than 30 Km, involving additional right of way greater than 20m
\ninvolving land acquisition and passing through more than one State has been set
\nout.\n<\/p>\n
\t\t37.In the above stated legal background, when we analyse the case on
\nhand, we are of the view that applying the principles of Sustained Development,
\nPrecautionary Principle and Public Trust doctrine, it is imperative that  in the
\ninterest of the public at large the laying of four lane road to improve and ease
\nthe transport mobility will have to be appreciated and allowed to be made
\nwithout any hindrance.  At the same time such a project can be permitted to be
\ncarried on without causing any serious damage to the natural water resources and
\nunder exceptional circumstances only with  least damage to it.   The principles
\nwhich can be kept in mind while dealing with the issue involved in these writ
\npetitions can be broadly stated as under:\n<\/p>\n
\t(a)Disturbance to the aquifers which are the source of ground water cannot
\nbe permitted.\n<\/p>\n
\t(b)If Natural Drainage Pattern of the surrounding area which feed the
\nwater body during rainy seasons exists, it is paramount that such water body
\nshould be allowed to exist without any disturbance.\n<\/p>\n
\t(c)”The Precautionary Principle” and “Polluter Pays Principle” are
\nessential features while considering the concept of Sustainable Development.\n<\/p>\n
\t(d)If there is threat of serious or irreversible damage and if it is not
\npossible to make a decision with ‘some’ confidence, then it will make sense to
\nerr on the side of the caution and prevent activities that may cause
\nirreversible harm.\n<\/p>\n
\t(e)Maintaining the material resources of the community like forests,
\ntanks, ponds, lakes, hillocks, mountain, etc., without causing any destruction,
\nshould be the rule and the exception can be only under inevitable circumstances
\nand in rarest of rare cases and that too by providing sufficient safeguards and
\nwhatever costs for such protective measures should be directed to be borne by
\nthe persons at whose instance even such exceptions are allowed.\n<\/p>\n
\t(f)The ‘Polluter Pays Principle’ should be applied in such rare and
\nexceptional circumstances.\n<\/p>\n
Keeping the above principles in mind, when the issue on hand is dealt with, we
\nare convinced that a direction to NHAI to construct an over bridge covering the
\nentire 530 metres  road across the Narikulam Tank would solve the crisis.\n<\/p>\n
\t\t38.When such an approach is made to the present issue, we feel that
\nby directing the NHAI to construct an over bridge covering the entire 530m road
\nacross the Narikulam tank would solve the crisis. Since in the considered view
\nof the NHAI four lane project has to necessarily be laid across the Narikulam
\ntank and  laying of such a road by filling up the tank to an extent of nearly 3
\nhectares i.e., 7.79% of the water body cannot be permitted as that would, in
\ncourse of time, obliterate the water body.  In the first instance that would cut
\nthe water body into two.   Though by providing  two nos. of bridges of 10m wide,
\nit may be stated that it would provide for movement of water in between the two
\nparts of the tank, when once the water body is cut into two halves, it will be
\ndifficult to state in definite terms that it would save the water body without
\nany serious destruction.  When once the natural water body is obstructed by
\ncutting it into two halves, it is very difficult to anticipate all future
\ndeteriorations and provide required safeguards to meet such  contingencies.
\nTherefore the safe course would be to maintain the natural set up without any
\nobstruction in order to ensure that the natural environment is protected though
\nmay be at the cost of a higher investment than resorting to any other
\nobstructive course and thereby provide scope for total obliteration.\n<\/p>\n
\t\t39.We are therefore convinced that the safer course would be to
\ndirect the NHAI to go in for a full length over bridge arrangement even if such
\na plan would result in higher cost investment. We are not therefore inclined to
\neven accept any other suggestions on behalf of the NHAI  such as  providing few
\nmore bridges of 10m width, in as much as, in our considered opinion, provision
\nof even such more number of bridges may not save the water body in the longer
\nrun.  It is not only the 200 ayacutdars who alone would be affected in the event
\nof any destruction to the water body.  Having regard to its locational advantage
\nwhich acts as storage point due to natural gradient level from west to east
\ndirections, it can capture the rain water and at the same time would act as an
\nembankment to the percolation of saline sea water towards the landward side,
\nwhich advantage will also be put to serious peril.   We are also convinced that
\nin the event of laying of a road on the water body to a full length of 530
\nmetres, there is every chance of the AQUIFERS getting seriously impaired which
\ncan never be restored by merely deepening the lake.\n<\/p>\n
\t\t40.In this respect, having regard to the various details furnished
\nas regards the location of the water body, the benefits that will be derived by
\nthe ayacutdars, the source of water supply to the water body and the claims of
\nthe petitioners in W.P.(MD)No.11850\/2009 that having regard to the locational
\nadvantage of the water body which prevents incursion of salinity to the coastal
\nvillages and other benefits namely, serving as buffer zone during floods  and
\nthereby saving the inhabitants from droughts and moderating the climate during
\nsummer, it is imperative that the said water body is bound to be saved from any
\nmajor damage being caused to it.  We also keep in mind the details placed before
\nus that as between 1962 and 1998 the census of Kanyakumari District, as against
\n3500 tanks which were existing in the year 1962 and the present figure of 2447,
\nwhich disclose the obliteration  of 1000 tanks in a period of 40 years, in
\npublic interest it is the bounden duty of the State to ensure that no further
\ndamage is caused to any major tanks such as the Narikulam Tank.  The scheduled
\nproject of NHAI to lay the road across the Narikulam Tank by filling it up to an
\nextent of 530 metres would, in our view, disturb the aquifers and therefore the
\nsame cannot be permitted.  It would also affect the natural drainage pattern of
\nthe surrounding area which feed the Narikulam Tank and on that ground also the
\nNHAI cannot be permitted to lay the road in the manner in which it is proposed
\nto be done.  We are convinced that the laying of the road by the NHAI by filling
\nup the tank will result in and cause irreversible damage to Narikulam Tank.  We
\ntherefore prefer to err on the side of caution and prevent the activities that
\nwould cause such irreversible harm to the prominent water body.\n<\/p>\n
\t\t41.Having regard to the above factors prevailing, we are convinced
\nthat by directing the NHAI to go in for a full length over bridge to the entire
\nlength of 530 metres over Narikulam Tank, the objective of NHAI to continue to
\nmaintain its planned project of laying 4\/6 Lane Highway Road can be achieved as
\nscheduled and also restrict any damage that may be caused to the water body by
\nlaying the pillars alone inside the lake.   Even though such a direction may
\ninvolve a higher cost, in public interest, we feel, this Court is entitled to
\nissue such a direction.  In this respect, we wish to refer to the mandate given
\nby the Hon’ble Supreme Court in the well known Vellore Citizens’ Case, reported
\nin (1996) 5 SCC 647, wherein, in paragraph 26, the Hon’ble Supreme Court has
\nempowered this Court to issue such directions.  The relevant part of such
\nmandate of the Hon’ble Supreme Court is to the following effect.
\n\t“26.We have issued comprehensive directions for achieving the end result
\nin this case.  It is not necessary for this Court to monitor these matters any
\nfurther.  We are of the view that the Madras High Court would be in a better
\nposition to monitor these matters hereinafter.  We, therefore, request the Chief
\nJustice of the Madras High Court to constitute a Special Bench “Green Bench” to
\ndeal with this case and other environmental matters.  We make it clear that it
\nwould be open to the Bench to pass any appropriate order\/orders keeping in view
\nthe directions issued by us. …..”\n<\/p>\n
\t\t\t\t\t    (Emphasis added)<\/p>\n
Having regard to such a directives issued by the Hon’ble Supreme Court while
\nrequesting the Hon’ble Chief Justice to constitute a “Green Bench”, we are of
\nthe view that in public interest, with a view to save the prime water body in
\nKanyakumari District from getting obliterated and also keeping in mind the
\ninterest of the future generations for all time to come and in the interest of
\njustice it will be appropriate for NHAI to go in for a full length over bridge
\nfor the entire 530 metres of the road to be laid over Narikulam Tank, may be by
\ninvesting some higher amount and thereby it can implement its scheduled project
\nof laying 4\/6 lane road and at the same time save the water body from the chance
\nof getting obliterated in future.\n<\/p>\n
\t\t42.We therefore hold that the present proposal of NHAI to lay four
\nlane road across the Narikulam tank as planned and shown in Annexure 1 & 2
\ncannot be permitted.  We also hold that NHAI need not have to resort to any
\nalternate route for laying the road as prayed for by the petitioners.  We
\nfurther direct the NHAI to proceed with its plan of laying the road as per its
\noriginal decision but we only direct that at the point of Narikulam Tank (Water
\nBody) for an extent of 530m it shall construct a full length over bridge and
\nthereby continue to maintain the water body in its original form except the
\nprovision of pillars to be laid inside the water body for the construction of
\nthe over bridge.\n<\/p>\n
\t\t43.The writ petitions are ordered with the above directions to the
\nNHAI.  The interim orders shall stand modified in accordance with the above
\ndirections passed in these writ petitions including the interim order dated
\n30.04.2009 passed in M.P.No.1 of 2009 in W.P.(MD)No.3913 of 2009.
\nW.P.(MD)No.3913 of 2009 shall be de-linked and  posted in the usual course
\nbefore the learned single Judge.  Connected miscellaneous petitions are closed.
\nNo costs.\n<\/p>\n
kk\/gb<\/p>\n
To\t<\/p>\n
1. The Director,
\n    National Highways Authority of India,
\n    G5 and 6, Sector 10,
\n    Dwaraka, New Delhi.\n<\/p>\n
2. The Project Director,
\n    National Highways Authority of India,
\n    NHA-14, Kamaraju Nagar 1st Street,
\n    Travellers Bungalow Road,
\n    Valliyoor, Tirunelveli-627 117.\n<\/p>\n
3. The District Collector,
\n    Kanyakumari District.\n<\/p>\n
4. The Environmental Engineer,
\n    Pollution Control Board,
\n    Kanyakumari District.\n<\/p>\n
5. The District Revenue Officer,
\n    Kanyakumari District.\n<\/p>\n
6. The Revenue Divisional Officer,
\n    Kanyakumari District.\n<\/p>\n
7. The Tahsildar,
\n    Agasteeswaram Taluk,
\n    Kanyakumari District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Conservation Of Nature Trust vs The Director on 20 May, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20\/05\/2010 CORAM THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MS.JUSTICE K.B.K.VASUKI W.P.(MD)No.11850 of 2009 W.P.(MD)No.4406 of 2009 and W.P.(MD)No.3913 of 2009 and M.P.(MD)Nos.1,1, 2,2 & 2 of 2009 W.P.(MD)No.11850 of 2009 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-210203","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nConservation Of Nature Trust vs The Director on 20 May, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/conservation-of-nature-trust-vs-the-director-on-20-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Conservation Of Nature Trust vs The Director on 20 May, 2010 - 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