point wise comments and reply of nhai on the applications...

Point wise comments and reply of NHAI on the Applications filed by the applicants and the NGT Court Order

1. OA104/2013 (W.P. No. 2079 of 2010)- CHALLENGE TO CHANGE IN ALIGNMENT

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Prayer of the Applicant Reply Furnished by NHAI before NGT

1 The prayer in this application seeking for �a WRIT OF MANDAMUS or any order or direction in the nature of writ forbearing the Respondents from Laning any road, destroying the seven system tanks comprised in Survey Numbers No.382/4 of Thiruvithancode Village and Survey Nos.23/15, 307/22, 288/11, 342/6, 377/2 and 399 of Eraniel Village by way of deviated curved alignment in contravention of the original approved Trivandrum � Kanyakumari alignment in between km 62/000 and km 66/000, as published by the Respondents in their official website in the month of September 2008, detrimental to the ecology and environment,�

National Highways Authority of India has filed a detailed Counter Affidavit in W.P.No.2079 of 2010 inter-alia contending that

(a) At para 6, it has been specifically denied

that there is no deviation from the original alignment.

(b) The Seven System Tanks will not be affected due to the proposal.

(c) At para 8, it has been clearly averred that there had been no change or deviation from the alignment and the alignment remains to be the same.

(d) The allegations that it would affect the water table, ecology, environment, free flow of water has been categorically denied as baseless.

The writ petition in W.P.No.2079 of 2010 which was filed on 09.02.2010 is clearly barred by limitation as at paragraph 36 of the Writ Affidavit the cause of action has arisen in September, 2008 when the alignment plan was uploaded in the NHAI website. The alignment has fructified into a 3-A Notification and as per the then environmental notification, Environment Clearance has been obtained from Ministry of Environment and Forests. Hence, the prayer has become virtually infructuous by virtue of subsequent developments. The fixation of alignment is an administrative act and can be challenged only on limited grounds:

(a) on the grounds of malafide; and (b) that the alignment is in violation of any

statute.

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No such allegations are made or proved. The entire affidavit is on the basis of hypothetical grounds which has not even been substantiated by any documents. The Courts/Tribunals do not have any expertise to suggest which alignment is suitable or feasible. The alignment has been fixed by experts after adopting feasibility study in terms of environmental and economical aspects. The human problems are also taken in to consideration in terms of displacement of inhabitations. (Please see Union of India Vs. Kushala Shetty case 2011(12) SCC Page 69- List of citation I) Hence, O.A. No.104 of 2013 has not only become infructuous due to the subsequent developments of issuance of 3-A Notification, but it has become academic after issuance of 3-A Notification.

Final Order for this application: Application partly allowed with a direction that the EC granted by the MoEF & CC to the project proponent dated 9.9.2010 shall be kept in abeyance for a period of six months, within which time the MoEF & CC shall refer the entire matter back to the EAC for reappraisal, which shall, after taking into consideration of the above said facts, particularly the objections raised during the public consultation process and referring to the revenue records, as stated in the RTI information elicited above and if necessary to depute a team of its members to visit the place before making appropriate recommendation and pass appropriate orders and thereafter the Regulatory Authority viz., MoEF & CC to pass appropriate orders. The entire process shall be completed within the period of six months. 2. APPLICATION NOS.111 AND 112 OF 2013 (WP NOS.198 AND 199 OF 2011)- CHALLENGE TO THE NOTIFICATIONS FOR ACQUIRING LANDS UNDER NATIONAL HIGHWAYS ACT

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Prayer of the Applicant Reply Furnished by NHAI

1 The petitioners have filed the above Writ Petitions challenging the 3-A Notification dated

The alignment fixation and the order passed under Section 3-C(2) by competent authority are only administrative in nature and the road

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14.08.2010 and 3-C(2) order dated 02.11.2010 passed by the Competent Authority in O.A.No.111 of 2013 (W.P.No.198 of 2011). The Writ Petitioners have challenged 3-A Notification dated 15.05.2010 and the 3-C(2) order dated 08.07.2010 passed by the Competent Authority in O.A.No.112 of 2013 (W.P.No.199 of 2011). Here again, both the applications are challenging 3-A Notification and 3-C(2) order respectively

formation has not been started. The cause of action with regard to the dispute to be brought under Section 14 of NGT Act is only when there is an issue relating to substantial questions arising due to implementation of enactments specified in Schedule-I. The National Highways Act 1956 does not fall within the Schedule-I and therefore, mere issuance of notification for acquisition or settlement of alignment will not give any cause of action to bring within the purview of Section 14 of NGT Act. Only when there is implementation of enactments under Schedule I of the Act, then Section 14 gets attracted. That stage has not come when this Writ Petition was filed. The environmental clearance has been subsequently granted and acquisition by passing of award has been completed. Therefore the subject in the writ petition has become academic. The Applicant has filed the writ petition with unsubstantiated allegations and is therefore not maintainable.

The challenge to the Notification issued under Section 3-A of the National Highways Act 1956 in Application Nos.111 and 112 of 2013 cannot be assailed before the Hon�ble Tribunal in view of the fact that the National Highways Act, 1956 is not found under Schedule-I of the National Green Tribunal Act 2010

The Hon�ble Supreme Court of India has held in a catena decisions that the Notification under Section 3A of the National Highways Authority of India Act 1956 can only be challenged on the limited ground that the notification has been issued for any purpose other than the purpose contemplated under the National Highways Authority of India Act 1956 or it is tainted by mala fides.

The issuance of notification for acquisition of the lands comprised in 3A Notification by itself does not have any impact on the environment.

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The environmental impact comes only during the construction of the highway on top of the acquired lands. Hence, the O.A. Nos.104, 111 and 112 of 2013 are misconceived and pre-mature and are liable to be dismissed. The Environment Clearance has been obtained from the Ministry of Environment and Forests vide EC dated 09.09.2010 and Petitioners have already challenged the same in Appeal Nos.116 and 127 of 2013.

Therefore, if the prayer of the Applicants is only revolved around the environmental aspect, then there is no cause of action to challenge the land acquisition proceeding since acquiring the land by itself causes no harm to the environment. The scope of Section 14 arises only during implementation and not on acquisition. Further, the respective land owners have consented to the acquisition and most of them have received compensation. Therefore, the applicants who are third parties and are not the land owners cannot prevent the actual land owners from consenting to the acquisition indirectly. Separate Appeal Nos.116 and 127 of 2013 have been filed challenging the Environment Clearance dated 09.09.2010. Hence, O.A.Nos.104, 111 and 112 of 2013 are liable to be dismissed.

Final Order for these applications: Application partly allowed with a direction that the EC granted by the MoEF & CC to the project proponent dated 9.9.2010 shall be kept in abeyance for a period of six months, within which time the MoEF & CC shall refer the entire matter back to the EAC for reappraisal, which shall, after taking into consideration of the above said facts, particularly the objections raised during the public consultation process and referring to the revenue records, as stated in the RTI information elicited above and if necessary to depute a team of its members to visit the place before making appropriate recommendation and pass appropriate orders and thereafter the Regulatory Authority viz., MoEF & CC to pass appropriate orders. The entire process shall be completed within the period of six months.

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3. APPEAL NOS. 116 OF 2013 AND 127 OF 2013: (W.P.NO. 8281/2011 AND W.P.NO. 3634/2012). CHALLENGE TO ENVIRONMENTAL CLEARANCE

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1 The above appeals challenge to EC dated 09.09.2010 are barred by limitation.

The Applicants have challenged the EC dated 09.09.2010 broadly on the following points :-

(i) That the Environment

Clearance is approved without undertaking any impact assessment study.

(ii) That the project will affect the system tanks along the project route.

(iii) That the project will affect water bodies, trees and cultivated lands.

In so far as the contention of the Applicants that the project has been undertaken by the National Highways Authority of India without any study the same is wholly false, fictitious and baseless. The Quality Assurance Plan for the project has been submitted on 20.06.2004 and the Inception Report was submitted on 24.07.2004. The draft Feasibility Study was submitted on 20.12.2004 for NH-47 and on 18.01.2005 for NH-47B. The final Feasibility Report was submitted to the Government on 11.04.2005. Thereafter, the draft Preliminary Project Report was submitted on 20.07.2005 and the final Preliminary Project Report was submitted on 16.08.2005. Thereafter, the draft Detailed Project Report was submitted on 23.09.2005 for Package-1 and on 30.11.2005 for Package-2. Thereafter, the final Detailed Project Report was submitted in February 2008 for Package-2 comprising of NH-47 and NH-47B.

In so far as the environmental study is concerned, the Environmental Impact Assessment study was conducted by the project proponent through an independent Consultant namely M/s SECON and the said Impact Assessment Report includes Environmental Management Plan.

The purpose of conducting the Environmental Impact Assessment is as follows :

(i) Collection of baseline data on various components of the environment.

(ii) Determination of environmental impact during planning construction and operational phase of the project.

(iii) Assessment of socio-economic conditions of the persons affected due to the project.

(iv) Submissions of Environmental Management and Enhancement Plans for mitigating negative impact to the environment.

(v) Fixing the road alignment in such a way the environment is least affected.

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In view of the above objectives, the independent Consultant while preparing the Environmental Impact Assessment Report took stock of the actual impact to the environment due to the project and filed a report.

In so far as the environmental hotspots are concerned, the same were recorded in detail including ponds, coconut plantations, rubber estate and rivers (See Page 3, 5 and 37 of Typed Set of Papers-2) and mitigation measures for the negative impacts to these hotspots have also been recommended in the Environmental Management Plan which was submitted to the Ministry of Environment and Forests for obtaining Environment Clearance. The same is reflected in the impugned Environmental Clearance granted by the Ministry of Environment and Forest.

The major water bodies that are going to be affected by the project have been identified and listed in the Environmental Management Plan (See page 5 of Typed Set of Papers-2). The mitigation measures for these water bodies are part of the Detailed Project Report itself. The National Highways Authority of India is going to construct major and minor bridge across rivers, tanks and ponds affected by the project highway and culverts to ensure that the flow of water and the capacity of the tanks and ponds remain unaltered. The details of the proposed structures to be constructed are found in the Detailed Project Report itself. (See Pages 48 to 53 of Typed Set of Papers-1)

The 1st Respondent Ministry of Environment and Forests in their Counter Affidavit dated 23.04.2012 filed in W.P.No.8281 of 2011 in Appeal No.116 of 2013 has clearly averred that

(a) The proposal for Environment Clearance was considered in the Expert Appraisal Committee meeting held between 24.05.2007 and 25.05.2007 and TOR was finalized for carrying out Environmental Impact Assessment study including conduct of public hearing as per Environmental Impact Assessment Notification 2006;

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(b) The public hearing was held on 21.08.2009 and the National Highways Authority of India has submitted its final Environmental Impact Assessment on 01.04.2010;

(c) The public hearing proceedings were received on 07.05.2010 from Kerala Pollution Control Board. The final Environmental Impact Assessment along with the proceedings of public hearing, the issues raised during the public hearing and the response of project proponent to the various issues raised by the public etc. were considered by the Expert Appraisal Committee in its meeting held between 21.07.2010 and 23.07.2010;

(d) The Expert Appraisal Committee after due consideration of the relevant documents submitted by the project proponent for additional clarifications have recommended the proposal for Environment Clearance subject to certain conditions and that Environment Clearance was issued on 09.09.2010 stipulated necessary conditions for environmental safeguards;

(e) At para 4, it is stated that the proposal crosses major ponds, rivers, etc. and that in June, 2007, additional informations were sought for including the details of ponds and the said details were examined as per the procedure laid down under Environmental Impact Assessment Notification 2006 and EC was granted;

(f) That the proposal was examined as per the procedures laid down under the Environmental Impact Assessment, 2006.

Therefore, the contention of the Applicants that the environmental impact on the water bodies has not been studied by the project proponent and consequently has not been considered by the Ministry of Environment and Forests while granting the Environment Clearance is wholly fictitious and not borne out by records. Per contra, the impugned Environment Clearance dated 09.09.2010 itself make a reference in Clauses 5(vi), (vii) and (xvi) to the Environmental Management Plan submitted by the National Highways Authority of India with regard to the mitigation measures against adverse impact to the water bodies and has directed that the measures

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stated in the EMP have to be complied in true letter and spirit.

Cutting of trees and re-plantation are also dealt in the EC. In fact, the impugned environment clearance dated 09.09.2010 has also directed to provide longitudinal drains along the project road and additional culverts to act as cross drainage structures so that the road does not affect natural drainage of water. Therefore, due consideration has been given to the effect of the project on the water bodies and only after studying the impact of the project of these water bodies and after finalizing the mitigation measures has the Ministry of Environment and Forests accorded Environment Clearance to the project. The Applicants have claimed in the written arguments filed by them that the project is going to affect 70 ponds and 277 canals as opposed to the 26 ponds and tanks identified at the time of EIA study. The said claim of the applicants is totally misleading and false.

In the letter of Executive Engineer, PWD dated 16.03.2016 addressed to the Superintending Engineer, he has clearly set out the details of ponds, tanks, rivers which are going to be affected due to project highway while recommending for grant of NOC and has also given the mitigation measures to be undertaken in detail. (Please see the Annexure to written arguments) Hence, the allegation of the Petitioner is imaginary, baseless and unfounded.

The applicants have relied upon a tabular column prepared by them showing as if there are �vaikals� and �Odai� in some survey numbers. The respondent stoutly denies the said claim of the Applicants as false and incorrect. In fact, the applicants have not stated in their affidavits as to how they have made this tabular column and on what basis they have come to the conclusion that there are vaikals and odais in these survey numbers.

The applicant relies upon information obtained under the RTI Act from the revenue authorities which shows some lands containing �odai� and �vaikal�. The revenue records does not reflect the actual surface

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area and size of the said odais and vaikals existing. The Revenue records do not reflect the true state of nature of lands at the site. They are merely classification of lands done 50 to 60 years ago and followed even now which do not reflect true state of affairs on the ground. In fact, it is common across Tamil Nadu to see revenue records classify a particular land as �odai� when in fact there is no water body at all over the land.

In fact 3-A notification clearly specifies the nature of lands. There is vast contradiction between 3-A notification and the Revenue records. It is not the case of the Petitioners that 3-A notification does not reflect the true status and character of lands. The 26 tanks and ponds identified by the Respondents are large water bodies which require major and minor bridges to be constructed. Small odais and vaikals require only minor culverts/pipe bridges to ensure cross-drainage.

No steps were undertaken to prove that classification of lands in 3-A notification is false. In fact, number of pipes and box culverts are being built by the NHAI to ensure that the small odais and vaikals are not affected.

Around 141 box and pipe culverts are being built by the NHAI along the project highway to ensure that the flow of small water canals is not affected. (See pages 51 to 53 of the Typed Set of Papers �I).

Thus the claim of the Applicants that there are 277 canals and that these canals have not been studied by the NHAI and that the NHAI has suppressed these facts while obtaining the EC is totally fictitious and false.

The Applicants are blowing out of proposition and are making a mountain out of mole.

The Petitioners have during the course of the argument said that many ponds and lakes have not been shown in the project report of National Highways. The Petitioner mainly relies upon the Revenue records (these records were filed only at the

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time of arguments) and the authenticity and genuineness of these records were totally disputed. Based upon the Revenue records, the Petitioner would plead that the National Highways has not stated about the water bodies that is available in the project highway. Such argument of the Petitioner cannot be countenanced in law.

With regard to the claim of the Petitioner that cultivable lands and trees are going to be cut, as stated above, no rare or endangered species of plant is going to be affected by the project. In so far as the afforestation is concerned, the Environmental Mitigation Plan has suggested reforestation at the ratio of 5:1 viz. planting 5 trees for every single tree that is going to be cut (please see page 33 of Typed Set II of Respondent). The same is also found mentioned in the impugned Environment Clearance dated 09.09.2010. Apart from this, the Environmental Management Plan has also suggested development of green belt around the project highway which has also been approved by the impugned Environment Clearance dated 09.09.2010. The nature of trees existing namely coconut and rubber plantations are clearly set out in the environmental assessment plan and environmental management plan � Typed Set II of Respondents. Biological characteristics, the forest, the ecological ill effects are also set out in detail.

The plantation of new trees will be of the same species as that was cut. In fact, in most cases, the land owners have requested permission to uproot and transplant the trees since they own lands adjacent to the lands under acquisition and in those cases, transplantation of trees is going to be carried out. Therefore, the contention of the Applicants that there is going to be loss of large number of trees is also unfounded and cannot be countenanced.

It is well settled that while assailing environment clearance granted to the project, the Applicant cannot substitute his own views for the views of the Ministry of Environment and Forests. The Ministry of Environment and Forests has granted the impugned environment clearance dated 09.09.2010 only after the recommendation of the Expert Appraisal

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Committee which has thoroughly gone into Environmental Impact Assessment Report and the Environmental Management Plan and only then, the environment clearance has been given. Therefore, unless the Environmental Impact Assessment was not conducted in accordance with law or the environment clearance has been granted contrary to law or unless the procedure contemplated under law has not been followed while granting the EC, the impugned environment clearance cannot be set aside merely because the Applicant does not agree with the mitigation measures.

The Applicants seek to substitute their views for that of the Expert Appraisal Committee and the Ministry of Environment and Forests and the same cannot be done, since each person will have a different view as to how to protect the environment and what measures have to be taken but ultimately, the views of the Expert Appraisal Committee must prevail unless it can be shown with their actions were contrary to law.

Final Order for this application: Application Nos.116 and 127 of 2013 stand dismissed, as not maintainable. 4. Further NHAI has submitted following points before Hon�ble NGT, Chennai during written / oral arguments: a) Claim of suppression, misrepresentation, fraud etc. by appellants while

obtaining Environment Clearance: When the Appellants during arguments claim suppression of material facts, then the Appellants has to plead in detail about suppression of the facts by the National Highways Authority of India to obtain Environmental Clearance in the Appeals. There is no such pleadings found in the Appeals.

Section 18 of the National Green Tribunal Act contemplates that application under Section 14 or Appeal under Section 16 shall be made to the Tribunal containing �such particulars� and be accompanied by �such documents�. Though CPC is not applicable, however, when an environmental clearance is challenged on the ground of fraud, suppression of material facts or misrepresentation, there should be clear pleadings by way of particulars to that effect. Unless proper pleadings are made by the Appellants, no arguments could be made without any such pleadings.

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The attention of the Hon�ble Tribunal has drawn to the provisions under Order 6, Rule 4 of CPC which is in pari materia with Section 18 of the NGT Act, which is extracted hereunder:--

�4. Particulars to be given where necessary.� In all cases in which

the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.� In fact, in the judgment reported in Ranganayakamma and another Vs. K.S.

Prakash (dead) represented by LRS and Others reported in (2008) 15 SCC 673, the Hon�ble Supreme Court in para 40 (Please see Citations-II) has stated that whenever a party urges fraud or misrepresentation or suppression of fact, there should be a clear pleading to that effect. However, no such pleading has been made. Be that as it may, clause 5.6 of final detailed project report Volume I (Respondent�s Index to Typed Set of Papers � Page 48 to 58), there had been a clear analysis of all water bodies by way of mentioning their locations and giving chainages and thus a meticulous study has been made analyzing the water movement which enabled the expert to spell out the nature of structures to be erected and the mitigation measures to be undertaken. b) Change in law and Environment Clearance for project not required. Hence

Applications are liable to be dismissed The requirement of Environmental Clearance for project less than 100 Kms is

now deleted with by way of S.O.2559(E) dated 22.08.2013 and does not require any clearance (Sl.No.7 of Type Set 5). As per the amendment issued, the environmental clearance in S.O.1533 (E) dated 14.03.2006 has been amended and requirement of EC for projects only about 100 Kms is substituted.

The effect of amendment is that the entire requirement for EC for formation of NH

(including widening) upto 100 Kms. has been deleted from statute and consequently legal fiction is created that no EC is required right from the date of 2006 Notification. Hence, the entire litigation has now become academic as no EC is required due to deletion. The Law that stands now has to be taken into consideration and Courts have held that litigation has to be decided based upon change in law and that Court has to take into consideration the change in law and to grant relief.

The notification in S.O.No.1533 (E) dated 14.09.2006 has been amended and

Schedule 7 (F) Column 3, Entry 2 has been substituted. The effect of substitution is that a legal fiction is created as if rule did not exist in the statute book at all. In other words, the earlier requirement of EC was obliterated and written out with retrospective effect so that in the eye of law it was never made at all.

It is now settled law that when legal fiction is enacted by the legislature, the Court

should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect to it (1977 1 SCC 666 Para 3).

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Therefore, the appeals have become virtually infructuous and academic are

liable to be dismissed (Also see 1977 1 SCC 3 � Change in law has to be taken into consideration.). In the judgment reported in 2014 1 SCC 188, the Hon'ble Supreme Court of India has held that change in law has to be accepted and implemented as law regulates relationship between the people and therefore role of the Court is to understand the purpose of law in the society and to help the law achieve its purpose.

1987 Supp SCC 93 � The Courts have held that the Court should not undertake

to decide an issue unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time to engage itself in deciding it.

Appeals are filed to quash EC dated 09.09.2010. Since no EC is required by legal

fiction introduced due to substitution of new Schedule 7(F) Column 3, Entry 2 by way of Amendment in S.O. 2559 dated 22.08.2013, the entire exercise undertaken by Appellants have become academic.

c) Applicant�s suggestion that impugned roads not required due to availability of

existing roads

The applicants state in their written submissions that the project is not necessary since there are already 3 highways connecting Tiruvandrum to Kanyakumari. The said contention cannot be countenanced in law. The Appellants cannot suggest which road is suitable to general public. The formation of roads is purely within the executive power of the State. Only the Government � which is elected by the people � can be the authority to decide what is required for the benefit of the people and it is a purely poly decision. In the present case, the expansion of the existing National Highways 47 and 47-B is the need of the hour. In fact several representations have been received by the Government from the local people praying for the widening of the road due to increase in vehicular traffic. The congestion has also led to several accidents. Therefore, the applicants cannot be heard to say that there are enough highways in the area and thus, the proposed widening of National Highways 47 and 47-B is surplus to requirements.

d) PWD role in granting NOC and suggestion of mitigation measures

The Applicants have also placed much reliance on the letter of the National

Highways Authority of India addressed to the Chief Engineer of Public Works Department, Madurai dated 26.05.2010 whereby the Public Works Department was requested to conduct a joint inspection of the project site along with National Highways officials. The Applicants rely on this letter to project as if there was no study done before obtaining the environment clearance as to the tanks and water bodies under the control of Public Works Department. Such an inference drawn by the Applicants cannot be countenanced in law or fact since the letter addressed to the Public Works Department does not in any way concern obtaining of the environment clearance from the Ministry of Environment and Forests.

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It is a fact that even the tanks under the control of the Public Works Department were studied and mitigation measures have been recommended for those tanks also. The letter merely proposes a joint inspection before the actual project commences so that there can be co-ordination between the Public Works Department and the project proponent which is National Highways Authority of India as other area on which highways are formed are not affected. It is not as if the National Highways Authority of India did not inspect or study the tanks prior to obtaining the environment clearance.

The Respondent submits that apart from the mitigation measures which has

been suggested by the National Highways, the National Highways by letter dated 26.05.2015 and 17.08.2015 have clearly given consolidated details of water bodies involved in the project of 4 laning and have also given the proposed structures and also mitigation measures.

In fact, the officials of State PWD along with officials of National Highways have

inspected all the water bodies and the State PWD has also advised certain mitigation measures while recommending for grant of NOC by the State Government (See Annexure-I). Therefore, the State PWD has also taken note of all the water bodies and suggested the mitigation measures which the National Highways Authority of India has undertaken and to abide by all such measures suggested by the PWD.

As stated above, the environment clearance was granted only after accepting the

Environmental Management Plan proposed by the National Highways Authority of India for these tanks and ponds. The letter dated 26.05.2015 written to the Public Works Department is only for the purpose of co-ordination and joint inspection so that the Public Works Department will assist the National Highways Authority of India in smoothly completing the project.

The Applicants relying upon this letter to project as if the PWD tanks were not

studied by the National Highways Authority of India is false and imaginary. This joint inspection is done not only to study the mitigation measures but also to see that free flow of water is not affected. e) Prior Feasibility Study undertaken by National Highways Authority of India

Before finalization of Final Detailed Project Report sufficient possible routes have

been explored and the alignment has been fixed only after coming to irresistible conclusion that the alignment is feasible both economically and environmentally. Only then, 3-A Notification has been issued and awards have been passed and amount has been paid to land owners in many villages. Therefore, any interference with the public project would only affect the public interest.

f) Right to development is a fundamental right

The �right to development� is also a fundamental right and is protected under Article 21 of the Constitution of India (New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association, K. Sathoor Vs. Union of India (2012) 1 MLJ 207, List of Citation-I, Paras 23 to 25).

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Further, Section 20 of the National Green Tribunal Act reads as follows:-

�20. Tribunal to apply certain principles. �

The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.�

Under these circumstances, the prayer sought for in the applications cannot be granted in view of Section 20 of the National Green Tribunal Act, 2010.

Brief note as per order Hon�ble NGT

The applications, were originally filed as Writ Petition (MD) No.2079 of 2010, W.P.(MD) No.198 of 2011, W.P.(MD) No.199 of 2011, W.P.(MD) No.8281 of 2011, and W.P.(MD) No.3634 of 2012 on the file of High Court of Madras in its Madurai Bench, subsequently transferred to Hon�ble National Green Tribunal, Southern Zon, Chennai (NGT) and re-numbered as Application No.104 of 2013, 111 of 2013, 112 of 2013, 116 of 2013 and 127 of 2013 respectively, have been taken together jointly. In all these cases, the applicants have, in effect, chosen to challenge the Environmental Clearance (EC) granted by the MoEF & CC in respect of the proposal of National Highways for the purpose of widening NH � 47 and NH � 47 B, particularly the distance between Kaliakavilai and Nagercoil for the project of 4/6 lining of package � II km 43/000 to km 96/714 from Kerala/Tamil Nadu border. Prayer of the applicants: 1. In the Application No.104 of 2013 which was originally filed as W.P.2079 of 2010 the applicant has prayed for a direction to the respondents refrain from laying any road, destroying the seven system tanks, comprising in Survey Nos.382/4 of Thiruvithancode Village and Survey Nos.23/15, 307/22, 288/11, 342/6, 377/2 and 399 of Eraniel Village by way of deviated curved alignment in contravention of the originally approved Trivandrum � Kanyakumari alignment in between km 62/000 and km 66/000 as the same is detrimental to the ecology and environment. 2. The Applicants who have filed the Application No.104 of 2013 have also filed the Application No.111 and 112 of 2013 which who originally filed as (W.P.(MD) No.198 and 199 of 2011), have prayed for quashing the notification issued under Section 3-A of the National Highways Act, 1956 dated 25.5.2010 published in ��Daily Dhanthi�� dated 14.8.2010 in so far as the acquisition of six of the seven system tanks comprised in Survey Nos.23/15, 307/22, 288/11, 342/6, 377/2 and 398/2 of Eraniel Village and the connecting linkage canals of the said system tanks comprised in Survey Nos.288/6, 292/1, 292/4, 341/1, 343/7, 344/10, 364/5, 365/5, 378/12, 392/6, 396/1 and 397/1 of Eraniel Village and the consequential order of the eighth respondent i.e., District Environmental Engineer, Pollution Control Board, Kanniyakumari District dated 2.11.2010 and quash the same and also directed the respondents refrain from laying any road, destroying six of the seven system tanks comprised in Survey Nos.23/15, 307/22, 288/11, 342/6, 377/2 and 398/2 of Eraniel Village and the connecting linkage canals situated in the above mentioned survey numbers between km 62/000 and km 66/000 of the proposed Trivandrum � Kanyakumari Road as the same is detrimental to the ecology and environment. 3. The above Application No.111 of 2013 was being clubbed alongwith other applications viz., 104, 112, 116 and 127 of 2013. In all the said applications, the applicants therein had virtually chosen to challenge the Environmental Clearnace (EC) granted by the MoEF & CC inrespect of proposal of National Highways for the purpose of widening the NH 47 and NH 47B, particularly the distance between Kaliakavilai and Nagercoil for the project of 4/6 laning of Package-II from Km.43/000 to Km.96/714 from

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Kerala / Tamil Nadu Border. In the Application No.116 of 2013, the applicant has chosen to raise an additional point that the EC is in violation of EIA Notification, 2006 and the application placed before the Expert Appraisal Committee of the MoEF & CC (EAC) was not within the time stipulated and the finalisation by the EAC also was not as per the time schedule given under the EIA Notification, 2006. The applicant also refers to the fact that India being a signatory to the RAMSAR Convention 1971 by which no wetland should be destroyed and by the present project more than 100 tanks and canals are to be destroyed. Extracts of Hon�ble NGT�s order: Originally when the above applications were pending as Writ Petitions before the Hon�ble High Court, there was no interim order against the 4th respondent i.e., Secretary, Government of India, Ministry of Surface and Road Transport. Later after transferring and renumbering of the above matters, by an order dated 7.3.2016, this Hon�ble Tribunal directed the applicant not to proceed further with the project. Subsequently after hearing the contentions of the applicant, this Hon�ble Tribunal passed an order dated 16.3.2016 permitting the applicant to proceed with the project activities subject to the condition that the same shall not affect any ponds which are situated in the course of the execution of the project and no trees on the way to be cut. The operative portion of the order dated 16.3.2016 reads as follows:

�We make it clear that the second and third respondents are not prohibited from carrying on with the project activities. However, the project shall not affect any of the ponds which are situated in the course of the execution of the project and no trees on the way shall be cut by the second and third respondents�

and the said modified interim order still continues.�

In the Para 66 of the order it has been further stated that the said applicants are not entitled for the benefit granted under Section 38(5) of the National Green Tribunal Act, 2010, as elicited above. Needless to state that when the impugned EC was granted as early as on 9.9.2010, by applying Section 16 of the National Green Tribunal Act, 2010, it is barred by limitation. Even assuming that no one of the stakeholders, as held by the Principal Bench of the NGT in SAVEMON REGION FEDERATION V. UINION OF INDIA (M.A.No.104 of 202 arising out of Appeal No.39 of 2012 dated 14.3.2013) has chosen to put the EC in public domain in full form when admittedly these two applicants have approached the High Court on 25.7.2011 and March, 2012 challenging the EC dated 9.9.2010, they had effective knowledge of the EC. Even assuming the date of filing of such writ petitions, as the date of knowledge, the applications which are otherwise should be treated as appeals and are hopelessly barred by limitation. The period of limitation is certainly a legal impediment for any person claiming relief against any impugned order and unless such impediment is crossed, there is no possibility for such person to seek remedy on the merits of the case. In Para 67 of the order it has been concluded that the Application Nos.116 and 127 of 2013 are dismissed, as not maintainable and beyond the period of limitation.�

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As per Para 75 of the order We are anxious only about the protection of environment; especially the water bodies and trees. In fact, in our interim order, we have permitted the project proponent to proceed as per the EC, subject to the condition that no one of the water bodies, either it is pond or otherwise, should be disturbed and no trees should be cut and equity can be claimed. The EIA Notification, 2006 contemplates the process for any projects to comprise of a maximum four stages viz., ��screening��, ��scoping��, ��public consultation�� and ��appraisal��. It is true that this being ��A�� category project, there is no question of ��screening�� which may arise. In so far as it relates to the ��scoping�� stage, based on the contents of Form � I given by the project proponent, by way of proposal and EIA report prepared by the project proponent, the Expert Appraisal Committee (EAC) during the ��scoping�� stage, in order to arrive at the ToR, enabling to EAC to decide the crux of the project and pointed out the reference, which in turn will enable the project proponent, to prepare a final EIA report. Before deciding about the ToR, it is always open to the EAC to call for further clarification from the project proponent. On a perusal of the original records filed by the learned counsel appearing for the MoEF & CC and referring to the minutes of the meeting of EAC, it is clear that in fact the EAC has sought for various clarifications and ultimately directed with certain observations which is in the form of ToR. The project proponent has prepared an extensive study in the form of EIA, apart from 52 Environment Management Plan (EMP). A reference to the EIA and EMP prepared by the project proponent show that extensive study has been made in respect of the choosing of the place and also the impact of the project on various aspects. Therefore, in our considered view, there is nothing for this Tribunal to interfere as far as the ��scoping�� stage is concerned. According to Para 76. This leads to the next aspect of ��public consultation�� The EIA Notification, 2006 contemplates two stages of ��public consultation�

(a) a public hearing on the site or in the close proximity � Districtwise, to be carried out as per the annexure prescribed in Appendix IV for ascertaining concerns of local affected persons

(b) obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity

The public hearing shall be conducted by the State Pollution Control Board and proper notice must be given indicating about the public hearing within seven days of the date of draft EIA report from the project proponent by advertising the same in one major National Daily and one regional vernacular daily/official State language by giving minimum notice period of 30 days. The public hearing was conducted on 21.8.2009 at Nanjil Hall, District Collectorate, Nagercoil. About the factum of proposed public hearing, wide publicity has been made by publishing the notice in ��Dhinamani�� and ��New Indian Express�� on 18.7.2009. The EIA report of the project proponent was made available to the public. All these facts are not disputed by the applicants. In fact, the applicant viz., Dr. R. Lal Mohan has participated in the public hearing. The records relating to the public hearing show that after the explanation was given by the Project Director regarding the project, the District Collector has called for objections from those who are affected by the formation of new road and large number of people participated in the public hearing and the those statements made by the persons, including the applicant have been recorded. After the public hearing was completed, the entire proceedings of

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public hearing along with the final EIA report given by the project proponent have been sent to the Government of India for referring to the EAC for ��appraisal��. Therefore, the process of public consultation cannot be found fault with on the factual matrix of the case.� As Para 82. It is unfortunate that even MoEF & CC, which is the Regulatory Authority having an independent obligation to consider the same on merits, of course, based on the EAC recommendation, has also failed to make note of the vital aspect of existence of large number of water bodies. One can definitely take judicial note of the existence of large number of water bodies in Kanniyakumari District which is not only a small District in 77 terms of geography but also connecting the adjacent Kerala State and the EAC should have taken a little more effort in scrutinising the EIA report as well as the ��public consultation�� papers in an appropriate manner. If only an ordinary prudent person goes through the public consultation papers, as it is seen in the records submitted by the learned counsel appearing for the MoEF & CC, certainly a spot inspection ought to have been proposed to be made, to find out the correctness of the existence of the water bodies in the area. After all preservation of natural springs, odais and other water bodies is absolutely necessary and it forms part of important duties of the government and considering otherwise should be only in the rarest of rare cases and cannot be taken as a routine process. In our view, after referring to the documents submitted by the learned counsel appearing for the MoEF & CC, it is clear that the process of ��appraisal�� has not been done by the EAC in an appropriate and proper manner at all. Conclusion of Hon�ble NGT�s order: The Hon�ble Tribunal has dismissed the Application No.116 & 127 of 2013 as not maintainable and partly allowed the Application No.104, 111 and 122 of 2013. The Hon�ble Tribunal has considered the entire contentions of both sides and passed a very detailed order dated 14.9.2016 wherein this Hon�ble Tribunal has approved the process of screening, scoping and public consultation etc. by the EAC. However this Hon�ble Tribunal has found the appraisal in so far as the protection of water bodies and minimizing the number of trees to be cut has not been done properly and therefore this Hon�ble Tribunal has directed MOEF to refer the entire matter back to EAC for reappraisal with the further direction that EAC shall take into consideration the various findings of this Hon�ble Tribunal and the objections raised during the public consultation process etc. and if necessary to depute a team of the members of EAC to visit the place before making appropriate recommendations within a time limit of six months as fixed by this Hon�ble Tribunal. In the mean time, the Hon�ble Tribunal has kept in abeyance the EC dated 9.9.2010 granted by MOEF & CC to the applicant. Accordingly, for the total compliance of the order of Hon�ble Tribunal, the NHAI has taken up matter before MoEF & CC for reappraisal of the project. The recommendations to be issued by EAC will also be fully complied and no damage whatsoever will occur to the water bodies and the environment.

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Typical drawing �Original Design of road passing through water body � Soil filling in the water

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point wise comments and reply of nhai on the applications...

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