NGT in Thenkeeranur Vivasayigal Nala Sangam vs. Union of India [24.02.2022]

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) 

For Applicant(s): Mr. S. Kamalesh Kannan for M/s. Taaurs Associates. 

For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1. 

                                Dr. D. Shanmuganathan for R2, R3 & R8 to R10. 

                                Mr. P.T. Ramkumar for R4 to R6. 

                                Mrs. Shanmugavalli Sekar along with Mr. Suryaprakash for R7. 

Judgment Pronounced on: 24th February 2022. 

CORAM: HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER 

                 HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER 

ORDER

1. This case pertains to construction of railway line and railway station at Kallakurichi along Kaniyamur Eri.

2. It was alleged in the application that earlier, the applicant filed Original Application No.193 of 2013 (SZ) before this Bench in respect of construction of railway line and railway station at Kallakurichi in the Thenkeeranur Lake. He had also filed writ petition before the Hon'ble High Court against the same project and the same was disposed of by directing the Government to consider the grievance of the farmers. The applicant projected himself as a person fighting for the cause of downtrodden and also protecting the environment before several forums.

3. According to the applicant, the present water body namely, Kaniyamur 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 purposes 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. As per the said plan, railway alignment was at a different location, skipping major water bodies and lakes. But later, 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 the same was agitated against by the applicant and other public in that locality.

4. Further, according to the applicant, the broad gauge line, proposed to be constructed is passing through the Eri covering an extent of 0.58.50 Hectares. They 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 floated for this purpose on 11.11.2016. The present mode of construction would disrupt the lake and prohibit the free flow of water and thereby, irreparable damage will be caused to the lake. As per the original approved construction of railway line by the Public Works Department (PWD), there was no formation of bund as proposed which is now evidenced from the RTI Reply obtained from the Public Works Department produced as Annexure-5. Now, they have changed the alignment and they have not obtained any Environmental Clearance (EC) from the authorities as required under EIA Notification, 2006 and other environmental laws.

5. In an earlier proceedings viz., O.A. No.193 of 2013 (SZ) in respect of the same project in another location, this Bench held that such project requires Environmental Clearance (EC) and restrained the Southern Railways from constructing terminal railway station at Kallakurichi on any part of the 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 Respondents No. 4 & 5 therein namely, Southern Railways beyond 0.31.5 Ha which has already been transferred for laying the railway line. Respondents No.4 & 5/ Southern Railways were 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 concerned authorities as required under law.

6. The applicant had produced Annexure - 1, a comparative sketch of 2005 and 2008 plan to show the original alignment as well as subsequent change and also produced Annexure - 2, Sketch of the impugned construction and Annexure - 3, tender notification issued for this purpose and Annexure - 4, the list of wells. Further, the order of this Bench in O.A. No.193 of 2013 (SZ) dated 07.08.2015 was produced as Annexure - 6 and the applicant also produced certain replies obtained under the RTI Act from the Tamil Nadu Pollution Control Board and SEIAA as Annexure - 7 & 8 for the purpose of proving the fact that they have not applied for Environmental Clearance (EC) and other permissions under the environmental laws.

7. Since the Respondents No.4 to 6 are proceeding with the work, 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."

8. The respondents 4 to 6 filed their reply affidavit contending that the application is not maintainable. The Kaniyamur Eri is situated in Sy.No.72/4 in Kaniyamur Village having an extent of 41.37.0 Ha. of which, 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 into the lake. It is passing at the extreme end of Kaniyamur Eri western side of the lake towards NH-79 road. As per the plan schedule submitted to the District Collector - Villupuram, 0.0226 Ha. of Poramboke land is to be transferred to the Southern Railways for this project. This area is not in the water storage location and it is far away from the water storage location and it is on the catchment area of the lake and there is no storage of water at this location. So, they denied the allegation in the application that 0.58.50 Ha. of land for the proposed construction was to be transferred is not correct. In fact, 0.226 Ha. of land is proposed to be transferred from the Eri Poromboke land by the Revenue Department. They have produced the LPS details submitted to the District Collector, evidenced by Annexure - 1 produced along with the counter. The new broad gauge line was sanctioned between Chinna Salem and 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). They have inspected the alignment suggested by RET 2005 along with the officials of the Revenue Department in the year 2008. The implementation of new railway line between Chinna Salem to Kallakurichi upon Thenkeeranur Lake will benefit the public to get connected with the other nearby towns. The Government of Tamil Nadu had accorded administrative sanction as per G.O. Ms. No.III/Transport Department dated 12.06.2012 to acquire and transfer an extent of 52.84.0 Ha. of land for railway projects. The District Collector, Villupuram had also given certain approval for implementation of this project with railway station based on the final location of Survey 2008 considering the convenience of the public and easy access to the proposed railway station. They have already deposited 64.49 Crores towards 50% of the cost sharing of the project cost. The land plan schedule was also submitted to the District Collector, Villupuram on 19.03.2010 to acquire the land as per Land Acquisition Act. They also produced the sketch of showing the proposed alignment as Annexure - 2 to the counter statement. The tender was called for with specification for construction of major bridge at Chainage : 4152 with 6 x 16.80 m clear span PSC I girder and at Chainage : 6619 with 3 x 6.00 m span RCC box for free flow of water of 18.00 m length of water way proposed at these location. The statement of applicant that Chainage : 6119 is construction of RCC box of 1.20 m span is not correct. They further contended that the observation of the Tribunal in O.A. No.193/2013 was that since the construction exceeds 20,000 Sq.M. it requires prior Environmental Clearance (EC). In fact, the construction of new railways line being linear projects will not fall under the Category - A as mentioned in schedule to the EIA Notification, 2006. In clause 8(a) of the schedule where in the list of projects for activities requiring prior Environmental Clearance (EC) is specified, only if the built up area is more than 20,000 Sq. M. and that direction is not applicable to the present case. As per the Railways Act, the Railway Administration is entitled to construct or entitled to make any construction like bridges across the river, streams or other water courses evidenced by the provisions of Section 11 of the Railways Act. The O.A. No.193/2013 (SZ) was disposed of by this Tribunal without considering the relevant provisions of Railways Act and other provisions of the EIA Notification. In compliance with the directions issued by this Tribunal, the Deputy Chief Engineer, Salem vide letter dated 27.01.2016 addressed the Chairman, SEIAA requesting to advise and confirm whether the Environmental Clearance (EC) for construction of Railway Station is required or not. But they have not received any reply in this regard. The applicant filed Writ Petition before the Hon'ble High Court of Madras as W.P. No.966 of 2016 against the land acquisition proceedings for the railway line and the District Revenue Officer, Villupuram filed a counter before the Hon'ble High Court in that writ petition stating that the petitioner and their relatives were encroachers and as per order dated 26.08.2016, the Hon'ble High Court of Madras had directed the writ petitioner to file an additional affidavit as to the details of land held by each member of the petitioners' Association, but so far no such additional affidavit had been filed before the High Court. The Revenue Authorities were taking steps to acquire the property and in order to stall the acquisition proceedings and help the encroachers, the applicant with mala-fide intention filed this application. O.A. No.193/2013 (SZ) had already been disposed of the matter by this Bench with appropriate directions and there is no necessity for a fresh consideration of the same by this Tribunal. So, they prayed for dismissal of the application.

9. The 3rd respondent filed counter affidavit contending that earlier O.A. No.193/2013 (SZ) was filed in respect of the same project at different location and the same was disposed of by this Bench by issuing certain directions to be carried out by the Railways Authorities. The applicant also filed Writ Petition before the Hon'ble High Court of Madras as W.P. No.966 of 2016 and the same was also disposed of with a direction to the petitioner that he can approach the National Green Tribunal, if he was of the opinion that the directions were violated. It is on that basis, that the present application had been filed. It was further contended that the Kaniyamur Eri is situated in Sy.No.72/4 having an extent of 41.37.0 Ha. and the acquired extent is 71.62.0 Ha. The land handed over to the railway is not a water spread area and it is only a catchment area. The railways broad gauge track is proposed through the extreme western end of Kaniyamur Tank and it is far away from the water spread area. The railways authorities assured that the project will not affect the water flow or tank and the water sources will be protected. The proposed railway track is located above the maximum water level of this tank. The applicant and others were encroachers and various applications have been filed by the applicant and others to protect their interest on encroachment on Government Poramboke land. In O.A. No.193 of 2013 (SZ), by Judgment dated 07.08.2015, this Tribunal had directed the Southern Railways to carry out the project and to ensure free flow of water level in the tank and following suggestions were given: (i) should not affect the water bodies in any manner, (ii) should not disturb the water bodies, (iii) water level should be maintained and (iv) laying of railway lines in the cross section of the water bodies have to be provided railway bridge over RCC concrete pillars instead of forming bund in the water spread area of Thenkeeranur Tank.

10. The 3rd respondent further contended that the Railway Deputy Chief Engineer (Construction) Southern Railway, Salem in his reply affidavit stated that railway is not proposed to construct any permanent wall of 212 meters on one side and 264 meters on the other side as alleged in the application. They have accepted the directions given regarding construction of major bridge at certain areas. As regards Thenkeeranur Lake is concerned, they have assured that they will construct the bridge on pillar construction while crossing the water spread area of the tank. As regards the Kaniyamur Eri is concerned, the alignment is not passing through the catchment area of the lake. They more or less reiterated the contentions raised by Respondents No.4 to 6 in their counter. So, they prayed for dismissal of the application.

11. The 7th Respondent filed counter affidavit more or less reiterating the contentions raised by the other respondents and also reiterating the directions issued by this Bench in O.A. No.193 of 2013 (SZ) and they have already informed the Southern Railways not to proceed with the work in view of the directions issued by this Bench in O.A. No.193 of 2013 (SZ).

12. The 10th Respondent filed counter denying the contention that the applicant's association was 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 viz., Srinivasan and other encroachers of Kaniyamur Village that the application has been filed. They also almost reiterated the contentions raised by the other respondents.

13. As directed by this Tribunal by order dated 25.02.2020, the 6th Respondent filed a status report wherein, they have stated that the proposed project was having a distance of 16 Kms, at an initial cost of Rs.38.91 Crores in the year 2006 and now, it was 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 available. Construction of major bridges, earthwork in forming bank along the alignment is in progress in between Chinna Salem and Kallakurichi. At Kaniyamur Eri, the location which is the subject matter in this application, the work has not 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 1 x 4.5 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 of water is without any basis and unsustainable. The directions given by this Tribunal in O.A. No.193 of 2013 (SZ) will be followed, at the time of executing the work in Thenkeeranur Tank. They have already deposited the necessary amounts to the District Collector, Villupuram for the purpose of making acquisition. Since the construction of the proposed project is less than 20,000 Sq.m. i.e. 9334 Sq.m., there is no necessity for obtaining Environmental Clearance (EC) for this project.

14. As per order dated 18.02.2021, this Tribunal had considered the pleadings and for the purpose of ascertaining 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, this Tribunal had appointed a Joint Committee comprising of (i) the District Collector, Kallakurichi District, (as the area now falls in Kallakurichi District) (ii) the Executive Engineer, Vellaru Irrigation Division, (iii) the Executive Engineer from the Irrigation Department of concerned area, (iv) the Superintending Engineer of Public Works Department (PWD) who is in-charge of that area and (v) a Senior Officer from the Ministry of Environment, Forests & Climate Change (MoEF&CC), Regional Office, Chennai to inspect the area in question and directed them to 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., Kaniyamur Eri 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 the present alignment, whether any portion of the lake is encroached by the applicants or their relatives through which the project is likely to be commissioned.

15. The concerned Chief Engineer (Construction) of Southern Railways was permitted to assist the committee by producing necessary documents and giving necessary details required by them for the purpose of preparation of the report. The Public Works Department (PWD) was designated as the nodal agency for co-ordination and also for providing necessary logistics for this purpose. Further, the District Collector - Kallakurichi District was 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 the report. Thereafter, the matter has been adjourned from time to time by successive notifications.

16. As directed by this Tribunal, the Joint Committee has filed the report dated Nil, e-filed on 26.03.2021 along with the photographs which reads as follows:-

"REPORT FILED BY THE JOINT COMMITTEE

1) The Kaniyamoor Tank situated in survey No.72/4 was inspected by the committee on 23/3/2021. The extent of the tank is 75.0 hectares. During the inspection, it is found that the earthen embankment with a box culvert meant for the proposed railway broad gauge track is existing in the site. The length of the track in the tank portion is 118 meters approximately. The route of railway track is located in the extreme end of Kaniyamoor Tank. The water enters in to the tank storage area from the supply channel of Mayura river towards this end. Since the proposed railway track is at far end of the tank, the water spread area (storage) will not affect in this tank.

2) The earthen embankment to a distance of 100 meters is provided by the railway department to form the track across tank with a Box culvert of size 4.50 M x 5.00 M for feeding water from supply channel to tank. (Photo is enclosed).

3) The proposed area for the construction of railway line through the water body of Kaniyamoor Tank is ascertained about (118.00 M (length of the track) x 35.00 M (width of the embankment)) 4130 Sq.m which is less than 20,000 sq.m.

4) The flow of water from the supply channel to the storage area is ensured through the box culvert provided at the lowest level in the 118 meters stretch. The level difference between the two end points in the 118 meters stretch is 0.6 meters. In case of heavy inflow due to water from the catchment area during monsoons, the water may get blocked at the balance portion of embankment and inundate the lands in the upstream side, if the inflow is more than the carrying capacity of the box culvert.

5) The proposed railway track will divide the farm lands (Immediate stretch abutting the tank portion) and water flow to either side would be restricted only through this box culvert. Due to this, there may be a temporary stagnation of water on one side of the track during monsoons before eventually flowing through the box culvert. Inundation due to this may be avoided by providing additional box culverts in the middle portion of embankment (or) by laying a bridge by cement pillars.

6) Some portions of the tank, located nearby the proposed railway alignment are under encroachment through cultivation by Ragul S/o Senthilkumar and five others. In this regard, Notices have been served to the encroachers in form III under rule 6(1) of the Tamil Nadu protection of tanks and eviction of encroachment act 2007

7) Joint committee submit the above facts as per the direction of the National Green Tribunal, southern zone, Chennai regarding original application no 45 of 2017 (sz)."

17. The applicant filed objection to the Joint Committee report wherein, they have stated that the provisions provided for the culvert is not sufficient, as the length of the railway track inside the water body is 118 meters approximately and the area of construction in the water body is 4130 Sq. M. and the box type vent now provided will not be sufficient to cater to the free flow of water and the construction was made without RCC pillars as undertaken by them. Further, the construction is not in the catchment area as alleged.

18. Heard Mr. S. Kamalesh Kannan, the learned counsel appearing for the applicant, Mr. G.M. Syed Nurullah Sheriff, the learned counsel appearing for the MoEF&CC, Dr. D. Shanmuganathan, the learned counsel appearing for the State Departments, Mr. P.T. Ramkumar, the learned counsel appearing for Southern Railways and Mrs. Shanmugavalli Sekar for the Tamil Nadu Pollution Control Board.

19. The learned counsel appearing for the applicant argued that the allegation that construction is not within the water storage area is not correct. Even as per the alignment will go to show that it is abutting the storage area and the picture produced by the joint committee will go to show that they have provided only one box type culvert which is not sufficient to maintain the free flow of water, even assuming that it is in the catchment area, that also will cover the water spread area during the rainy season and the same will have to be protected and free flow of water will have to be ensured. Otherwise, there is a possibility of inundation. In order to protect the free flow of water, the entire stretch where this is going to cover the water body has to be constructed on a pillar basis.

20. On the other hand, the learned counsel appearing for the Southern Railways submitted that they are prepared to do all necessary protective measures to ensure free flow of water and they also even prepare to provide as many vents as suggested by this Tribunal and pillar construction at this stage will result in huge expenditure.

21. The learned counsel appearing for the MoEF&CC argued that since the construction area is less 20,000 Sq.m., there is no necessity for obtaining any Environmental Clearance (EC). Further, a linear projects like the Railway line, there is no necessity for obtaining Environmental Clearance (EC).

22. The learned counsel appearing for the State Pollution Control Board and State Departments reiterated the stand as mentioned in their counter affidavits filed by them.

23. We have considered the pleadings and submissions made by the learned counsel appearing for the parties and also perused the documents on record.

24. The points that arise for consideration are:

(i) Whether the Southern Railways is entitled to encroach into the water body and make the construction of railway lines?

(ii) Even if the railway line is to be permitted along the water body, what is the nature of direction to be given by this Tribunal, applying the "Precautionary Principle"?

(iii) Whether the applicant is entitled to get any of the reliefs claimed in this application?

POINTS:-

25. The grievance in this application is regarding the Southern Railway's proposed laying of railway line connecting Chinna Salem and Kallakurichi through water bodies and by virtue of this sector is concerned, it passes through the water body by name Kaniyamur Eri. On account of the construction, it is likely to affect the free flow of water and reduce the storage area. They also relied on certain directions issued by this Tribunal in respect of the same project at another location where the Thenkeeranur Lake is involved. According to the Revenue Department as well as Public Works Department (PWD) and Southern Railways, the water spread area is not affected and the laying of line comes only at the western end of the catchment area of the lake and that will not affect the free flow of water and necessary provisions have been made to ensure free flow of water.

26. Respondents have raised the contention that the relatives of the applicant are encroachers into the Poramboke land which is part of the area likely to be acquired for the project and writ petition as well as several litigations have been filed through the applicant and others with malafide intention of protecting the encroachers and stall the public project like establishment of railway line etc.

27. It is an admitted fact that there exists a water body by name Kaniyamur Eri in that area in Sy. No.72/4 and the attempt of the Southern Railways is to construct the railway line either along the water body or in the catchment area of the water body. It is true that establishing new railway lines are required in public interest to make the transport facility more smoother and easier and under the provisions of the Railways Act, relied on by the learned counsel appearing for the Southern Railways, the railway has got the power to enter and construct bridges along the water bodies to lay the railway line.

28. There is no dispute regarding the fact that for sustainable development and also economic development, transport facilities will have to be improved, for which, roads and railway lines are required. But at the same time, it should not be at the cost of the environment. Though under the provisions of the Railways Act, the railway has got power to draw lines across the water bodies like construction of bridges, etc. they must ensure that the construction should not affect the flow of water and the ecology of lake and water bodies. They will have to provide necessary provisions for that purpose. Merely because, it was on the one side of the water body and not in the water spread area and only in the catchment area of the Eri thereby, there is no impact on the water body cannot be accepted, as the catchment area also plays a great role for ensuring free flow of water and also increase their storage capacity of the lake or water body during monsoon season. If any obstruction is made in the catchment area, the free flow of water into the Eri will be impacted and water may even be diverted to other areas, thereby the possibility of inundation and flood in the neighbouring fields of that area cannot be ruled out. So, the catchment area is also as important as in the case of storage area of the lake or water body and the same will have to be protected. Moreover, it is reported by the Joint Committee that the proposed railway track is at the far end of the tank i.e. in the tank area itself.

29. Further, in the decision reported in Hinch Lal Tiwari Vs. Kamala Devi & Ors. AIR 2001 SC 3215, the Hon'ble Apex Court held that it is important to note that material resources of the community like the forest, tanks, ponds, hillocks, mountains, etc. are nature's bounty, they maintain delegated ecological balance and they need to be protected for a proper and healthy environment, which enables the people to enjoy the quality of life which is the essence of the guaranteed right under Article 21 of the Constitution of India.

30. Further, in the decision reported in Jagpal Singh & Ors. Vs. State of Punjab (2001) 11 SCC 396, the Hon'ble Apex Court has observed as follows:-

"In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.

Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.

Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers...."

31. Further, in the decision reported in Indian Council for Enviro Legal Action Vs. Union of India & Ors. (1996) 5 SCC 281, the Hon'ble Apex Court has observed that while economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation. At the same time, the necessity to preserve ecology and environment should not hamper the economic and other developments. Both the development and the environment should go hand in hand. In other words, there should not be development at the cost of the environment and vice-versa, but there should be development while taking due care and ensuring the protection of the environment.

32. It is clear from the above decisions that there is a constitutional obligation on the part of the State/Union Governments to protect the environment including water bodies, forest, etc. as enshrined under Article 48 A of the Constitution of India and also providing clean environment as part of Right to Life is also a fundamental right to be enjoyed by the people as guaranteed under Article 21 of the Constitution of India.

33. In several decisions of the Hon'ble Apex Court and also the National Green Tribunal, whenever constructions are made across the water body, the person who is making the construction has to provide necessary precautionary methods to ensure that the free flow of water should not be obstructed and as far as possible. Whenever water bodies are crossed or where there is a possibility of blockage of the flow of water while carrying out such projects, they are expected to provide elevated bridges or bridges on pillar construction instead of providing small vents alone like box-type culverts.

34. Even this was insisted by this Bench in Original Application No.193 of 2013 (Thenkeeranur Vivasayigal Nala Sangam Rep. by its Secretary Mr. G. Srinivasan Vs. The Secretary to Government, MoEF&CC & Ors.) filed in respect of the same project in another location where another water body namely, Thenkeeranur Lake is likely to be interfered with. In that case, there was a direction to provide RCC Pillar construction throughout the water body area without affecting the free flow of water.

35. In this case, it is seen from the reports that the length of the railway lines along the water body is about 118 meters and they have provided only one vent, that too in the middle portion. In all other areas, they have raised the area by providing bunds which are likely to affect the free flow of water, as the entire water that is collected during monsoon has to go through only one vent/box type culvert provided. If the water quantity is more, then this provision provided will not be sufficient and there is a possibility of overflow of water on the railway line which may have an impact. Further, there is a possibility of the tank not being filled up due to insufficient flows through the single vent and there can be every possibility of the water to be diverted to surrounding area during the rainy season which may result in inundation of nearby villages or agricultural lands.

36. So, in order to avoid this, it is always necessary to provide a method by which there is no possibility of blockage of water or the free flow of water and it must be ensured that the amount of free flow of water that was available in Eri earlier should not be affected on account of the construction. Since it is only in the preliminary stage and they have not started the laying of the railway line, modifying at this stage will not cause any difficulty for them, though they will have to revise the estimate for this purpose. Merely because some more amounts will be required for modification will not be a ground for the Railways to shirk from the responsibility of protecting the environment and ensuring free flow of water in the water body.

37. Even in the Joint Committee report, it was specifically mentioned that flow of water from the supply channel to the storage area is ensured through the box-type culvert provided at the lowest level in the 118 meters stretch. The level difference between the two endpoints in the 118 meters stretch is 0.6 meters. In case of heavy inflow due to water from the catchment area during monsoon, the water may get blocked at the balance portion of the embankment and inundate the lands in the upstream side, if the inflow is more than the carrying capacity of the box culvert.

38. It is also mentioned in the Joint Committee report that the proposed railway track will divide the farmlands (immediate stretch abutting the tank portion) and water flow to either side would be restricted only through this box culvert. Due to this, there may be a temporary stagnation of water on one side of the track during the monsoon before eventually flowing through the box culvert. It was suggested by the Joint Committee that inundation due to this may be avoided by providing additional box culverts in the middle portion of the embankment or by laying a bridge by cement pillars.

39. So, this anticipated the possibility of reduction in the flow of water on account of the construction and possible damage being caused to the lake ecology and causing difficulty to the nearby lands abutting the railway line. So under such circumstances, we feel that it is necessary to direct the Southern Railways to provide a pillar construction bridge to the entire stretch of 118 meters where it is likely to cross the water body or likely to pass through the side of the water body along the catchment area to ensure free flow of water and avoid inundation of water during monsoon. This will be beneficial not only for the railways which is likely to affect the railway line due to the overflow of water on account of stagnation and affecting the neighbouring farmlands of the villagers.

40. As regards encroachment either by the applicant or their relatives is concerned, the authorities are at liberty to take action to evict them under due process of law. There may be some bad motive while approaching the Tribunal seeking certain reliefs on environmental issues coupled with certain personal interests as well. But while protection of personal interest overweighs the environmental issues, then the personal interest can be ignored by the Tribunal and the larger interest of protecting the environment can be considered by the Tribunal and this has been repeatedly held by the Hon'ble Apex Court in several decisions whenever such pleas are raised by the project proponents or other officials opposing the application. In this case, there was a genuine grievance raised that by virtue of the construction of railway line through this Kaniyamur Eri portion, there is a possibility of reducing the water storage capacity and obstructing the free flow of water and that may have an impact on the environment which is clear from the discussions made above.

41. We are not going into the question as to whether it requires any Environmental Clearance (EC) or not, as it has been observed by the Hon'ble Apex Court that linear projects like railway do not require Environmental Clearance (EC) under the EIA Notification, 2006. Further, the question of whether if the construction exceeds 20,000 Sq.m. will fall under the provisions of the EIA Notification, 2006 is also pending consideration before the Apex Court, as in Original Application No.478 of 2015 (PB), where the observation/finding of the Principal Bench of National Green Tribunal, New Delhi that where the construction exceeds 20,000 Sq.m. even linear projects like railways require prior Environmental Clearance (EC) is under challenge and that will be subject to the decision to be taken by the Hon'ble Apex Court in this regard.

42. So under such circumstances, we feel that the application can be disposed of by giving the following directions:-

a. The Southern Railways is not entitled to construct or lay railway lines, obstructing the free flow of water in the river or water body or even in the catchment area of the water body.

b. The Southern Railways is directed to provide elevated bridge with RCC Pillar Construction throughout the area of 118 meters covering the stretch of the water body instead of providing box-type culverts, design of the elevated bridge has to be approved by the Water Resources Department who are expected to ensure the free flow of water from the catchment area of the water body namely, Kaniyamur Eri into the Eri.

c. The question as to whether the Environmental Clearance (EC) is required for linear projects like railway will be subject to the decision to be taken by the Hon'ble Apex Court in Civil Appeal No.8762 of 2016 (Delhi Metro Rail Corporation Vs. Vikrat Tongad & Ors.) & Civil Appeal No.9070 of 2016 (Dedicated Freight Corridor Corporation of India Ltd. & Anr. Vs. Society for Protection of Environment and Biodiversity [SPENBIO] & Ors.) which was filed against the decision of the Principal Bench of National Green Tribunal, New Delhi in Original Application No.478 of 2015 (PB) while dealing with the construction of Delhi Metrorail in New Delhi. d. The State Departments are directed to take appropriate action against those persons who have encroached into the water body or Government Poramboke land by initiating proceeding against such encroachers by invoking the relevant statutes and adopting procedure provided therein and that right is not affected by the decision of this Tribunal and they are entitled to proceed against the encroachers and remove the encroachments and restore the water body/Government Poramboke land to its original position in accordance with law.

43. The points are answered accordingly.

44. In the result, this Original Application is allowed in part and disposed of as follows:-

(i) The Southern Railways is not entitled to construct or lay railway lines, obstructing the free flow of water in the river or water body or even in the catchment area of the water body.

(ii) The Southern Railways is directed to provide elevated bridge with RCC Pillar Construction throughout the area of 118 meters covering the stretch of the water body instead of providing box-type culverts, design of the elevated bridge has to be approved by the Water Resources Department who are expected to ensure the free flow of water from the catchment area of the water body namely, Kaniyamur Eri into the Eri.

(iii) The question as to whether the Environmental Clearance (EC) is required for linear projects like railway will be subject to the decision to be taken by the Hon'ble Apex Court in Civil Appeal No.8762 of 2016 (Delhi Metro Rail Corporation Vs. Vikrat Tongad & Ors.) & Civil Appeal No.9070 of 2016 (Dedicated Freight Corridor Corporation of India Ltd. & Anr. Vs. Society for Protection of Environment and Biodiversity [SPENBIO] & Ors.) which was filed against the decision of the Principal Bench of National Green Tribunal, New Delhi in Original Application No.478 of 2015 (PB) while dealing with the construction of Delhi Metrorail in New Delhi.

(iv) The State Departments are directed to take appropriate action against those persons who have encroached into the water body or Government Poramboke land by initiating proceeding against such encroachers by invoking the relevant statutes and adopting procedure provided therein and that right is not affected by the decision of this Tribunal and they are entitled to proceed against the encroachers and remove the encroachments and restore the water body/Government Poramboke land to its original position in accordance with law.

(v) Considering the circumstances, parties are directed to bear their respective cost in the application.

(vi) The Registry is directed to communicate this order to the official respondents including the officials of the Southern Railways viz., Respondent No.4 to 6 for their information and compliance of directions.

45. With the above observations and directions, this Original Application is disposed of.