Thenkeeranur Vivasayigal Nala Sangam vs Secretary to Governmentv And Ors

The applicant herein has filed this application in his capacity as the Secretary of Thenkeeranur Vivasayigal Nala Sangam which is a registered association of agriculturists who are dependent on the Thenkeeranur Lake (Lake) for their livelihood derived from agriculture and are the members of the society. The Lake is spread in an extent of 27.64 ha with a catchment area of 34.98 sq.km. The surplus water of the lake is feeding the Sitheri, Malaikottalam lakes besides other small ponds and village tanks to fulfil the need of public and farmers at large. The Lake also feeds "B" Thenkeeranur lake which irrigates lands over an area of 39.47 ha. The Lake and other downstream tanks act as flood regulators, storm water drains and rainwater harvesting structures when the water overflowing from River Gomuki reaches the lake at the time of monsoon rains. The Lake also recharges the groundwater in the area. The drinking water for Kallakurichi Municipality with a population of about 5 lakh is also drawn from the surplus waters of the lake.

There was a proposal to form a broad gauge railway line from Chinna Salem to Kallakurichi and to have a terminal railway station built at Kallakurichi by utilizing the land of the Thenkeeranur lake belonging to the Public Works Department (PWD) of the State Government and which has been classified as a water course poromboke in S.F. No. 253 of Thenkeeranur Village. The Railway Department deliberately failed to follow the protective measures to preserve the Lake and proceeded with survey without getting Environmental Clearance (EC) from the 1st respondent, Ministry of Environment and Forests (MoEF) as envisaged in the Environmental Impact Assessment Notification, 2006 (EIA Notification, 2006) and Environment (Protection) Act, 1986 (EP Act, 1986) .

The proposal and plan violated the fundamental principle of wise use of Wetlands as per Wetlands (Conservation and Management) Rules, 2010 (WCM Rules 2010). Contrary to the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife as guaranteed under Articles 48-A and 51-A (g) of the Constitution of India, the Indian Railways, being the largest Public sector with monopoly entity in the country, the 4th and 5th respondents should protect and improve the forests, lakes, rivers and wildlife. Instead of complying with the said fundamental duty, the Southern Railway by embarking with such proposal is deviating from it and also depriving the right of the entire agriculturists' society which is entitled to have an undisturbed and uninterrupted irrigation system.

Further, the Hon'ble Supreme Court of India has held that water bodies are Government property and the State authorities are the trustees to hold and manage such properties for the benefit of communities and cannot be allowed to commit any act or omission which will infringe the right of community by alienating such properties to any person or body. But ignoring the said proposition of law, the Southern Railway attempts to get a portion of the aforesaid lake transferred from Public Works Department (PWD) for building the terminal railway station. The Hon'ble High Court of Madras also held that the authorities in power cannot destroy the water bodies or water courses formed naturally for the benefit of mankind forever and it was beyond the power of the State to alienate or reclassify the water bodies for some other purposes. Hence, in the present issue, the State Government and its authorities including the District Collector, Villupuram being the administrative head of the District has to comply with the ratio formulated by the Hon'ble High Court and the Hon'ble Apex Court.

The applicant further states that the present plan, FLS, 2008 which envisages the construction of the railway station by filling up the lake was proposed in the Final Location Survey (FLS) conducted in 2008. Prior to that, the Reconnaissance Engineering cum Traffic (RET) survey report prepared and conducted in 2005 did not involve destruction of the Thenkeeranur lake. The communication from the 5th respondent dated 20.8.2010 falsely states that the Thenkeeranur lake is a dry area. The alignment details and alleged merits, demerits of the FLS, 2008 vis a vis RET 2005 are also stated as shown in Annexure A3 and the photographs of the Thenkeeranur lake, clearly exposing the false information provided which are shown as Annexure A4. If the scheme of FLS 2008 is sought to be implemented the following disadvantages would accrue affecting various factors:-

i. Loss of scope for future connectivity to Tiruvannamalai as per original scheme RET 2005;

ii. Does not promote industrial growth as projected by the Central Government;

iii. Necessitates construction of ROB at the intersection of NH 68 on the Thyagadurgam Road which is already witnessing heavy traffic congestion as more than 15000 public and students would have to pass through the highway during peak hours;

iv. Will not help the development in any orderly manner as such an infrastructure should have been planned at least 3 to 4 km away from the town, so as to allow for development of ancillary facilities and future expansion;

v. Will occupy a significant part of Thenkeeranur Lake, which plays the role of check dam whenever there is overflow in River Gomuki which will affect the effective storage of water and also seriously affects the beneficiaries' viz. farmers in and around the village;

vi. Future requirements are not considered as no proper SWOT analysis has been done; and

vii. Mainly concentrated on the vested interest of some individuals.

The Board of Thenkeeranur Village Panchayat passed resolution No.38/2012 unanimously resolving that no encroachment in any manner should be allowed to take place, by forming a railway line in the lake, which is much useful for irrigation purposes and it will also affect the farmers/ members of the association from doing cultivation. If any transfer of land is made by classifying the lake as "dry lake" it would be totally improper, illegal and unwarranted. In fact, the applicants had submitted numerous representations to the authorities and individual farmers have also made several representations to the authorities, but to no avail.

The Commissioner of Sugars, by his letter dated 25.10.2010 made a representation to form the alignment of Salem-Tiruvannamalai railway line through Attur, Chinna Salem, Kachirayapalayam, Kallakurichi, Sankarapuram and Moongilthuraipattu, which would be useful to two sugar factories situated at Kallakurichi as machinery, raw materials and gunny bags have to be transported from northern states and would also be helpful to transport the manufactured sugar to various places of the country, by goods trains. The authorities have not considered the fact that the RET 2005 proposed plan is not only environmentally friendly, but also economically advantageous to them. The District Collector of Tiruvannamalai by his letter dated 17.09.2011 has also proposed to implement the scheme of RET 2005.

The applicant further stated that they had approached the Hon'ble High Court of Madras by filing a Writ Petition in this regard in W.P. No. 15480 of 2010, and the Hon'ble High Court vide order dated 19.07.2010 had directed the authorities to consider and pass orders on the applicant's representation. The District Collector, Villupuram had sent a letter to the Chief Administrative Officer, Southern Railway, Egmore dated 05.02.2010 wherein he has illegally declared that an extent of land admeasuring 572.63 acres has been identified and reserved for railway line in the first settlement records. The reserved lands have also been allotted to private parties and pattas have been granted. The State Government has also issued an abstract of G.O dated 12/06/2012 wherein administrative sanction for acquisition of land including lands for the construction of the railway station on the lake was granted.

The respondents have planned and have also taken steps to acquire 406 metres of land along the western side, 412 metres on the eastern side with a width of 72 metres on the southern side and 72 metres on the northern side which totals to an area of more than 8 Acres falling within the lake. The Deputy Chief Engineer, Southern Railway (Construction) vide letter dated 20/04/2013 has admitted that the lake in S.No. 253 will be utilized for the project. The banks of the lake are at a distance of 191 metres on the western side and 191 metres on the eastern side from the proposed construction which will split the lake and destroy it completely. The Pollution Control Board has stated that action was being taken on the representation given by the applicant concerning the destruction of the lake. Finally, the applicant concludes that the authorities have proceeded to place marker stones along the lake and apprehending that the construction activities will soon commence, the applicant has approached this tribunal.

The respondents have filed their respective replies to the application and contend that the application is without merits and deserves to be dismissed.

Advancing the arguments on behalf of the applicant, Learned Counsel Shri. P.Rajavel would submit that the 4th respondent has got a proposal to form broad gauge railway line from Chinna Salem to Kallakurichi and to build a terminal railway station at Kallakurichi on the village lake having an extent of 27.64 ha in Survey No.253 in Thenkeeranur village which belongs to the State Government and falls under the control of PWD and classified as a water course poramboke. The 4th respondent has not followed protective measures in order to protect the said water body but has proceeded in violation of the mandatory conditions especially without obtaining EC from the competent authority namely the MoEF as per EIA Notification, 2006. The present project of construction of terminal station would certainly have a construction/built up area which falls under Category 'A' and therefore requires EC from MoEF. The proposal and plan violate the fundamental principle of wise use of Wetlands given statutory recognition under the WCM Rules, 2010. The 4th respondent is duty bound to protect and improve the natural environment of the lake. Instead of complying with the said fundamental duty they deviated from the same depriving the rights of agriculturists' society. The Hon'ble Apex Court has held that the water bodies are Government property and the State authorities are the trustees to hold and manage the same for the benefit of the community at large and cannot be allowed to commit any act or omission which would infringe the right of community by alienating such property to any person or body. In violation of the proposition, the 4th respondent Southern Railway is attempting to get transferred a part of the water body to its control and convert the same for the purpose of erecting a terminal railway station. Since it is an encroachment, the same has to be prevented at the initial stage itself. The State Government and its authorities have to comply within the ratio formulated by the Hon'ble Apex Court and Hon'ble High Courts. Pointing to a communication under Annexure A3 from the 5th respondent dated 20.08.2010 the Counsel would contend that the statement made therein that the Thenkeeranur Lake was a dry area was utterly false. In order to substantiate his contention the Counsel relied on photographs filed at Annexure A4. It is pertinent to point out that the District Collector, Thiruvannamalai in his letter dated 17.09.2011 has raised objections for implementation of the broad gauge alignment.

The Counsel would further add that so many disadvantages would accrue affecting various factors like industrial growth and development. The Board of Thenkeeranur Village Panchayat has also unanimously passed a resolution dated 14.06.2010 filed at Annexure A6 that no encroachment in any manner be allowed to take place by forming a railway line in the lake and there should not be any transfer of land by classifying as if it is a dry lake. A communication by PWD under Annexure A7 would clearly indicate that the lake irrigates an area of 68.02 ha. Representations made to the authorities were of no avail. The applicant then approached the Hon'ble High Court of Madras by filing WP No. 15480/2010 whereby an order dated 19/07/2010 was made to the authorities to consider the representations and pass suitable orders. It is pertinent to note that the respondents have planned to acquire a total area of more than 8 acres falling within the lake. The Deputy Chief Engineer (Construction), Southern Railway in his letter dated 20/04/2013 marked as Annexure A14, has admitted that the lake in Survey No.253 will be utilized for the project. If it is allowed, it will be nothing but permitting the destruction of lake which has to be restrained.

Arguing further, the learned counsel for the applicant would submit that the location of the proposed railway station is inside the lake area and formation of track by dividing the lake would cause great environmental harm. The respondent, Southern Railway have abandoned RET Survey and have admittedly proceeded to finalize the location. According to FLS the water spread area of the lake and buffer area around the lake are crucial for the maintenance of lake ecosystem, to aid the flow of water into the lake, recharge and drain excess water into the downstream system, small tanks, lakes and ponds. The respondents have not conducted any survey or study on the environmental impact of the project. Since the 4th and 5th respondents have not obtained the mandatory EC, no EIA study has been conducted to assess these aspects. The reply of the 7th respondent would indicate that only for an area of 0.31.5 ha permission has been obtained but the 4th and 5th respondents have stated that 3.15 ha of land from the lake would be used for the project. Apart from that, contrary to the permission granted, the 4th and 5th respondents are proceeding to construct the railway line through the lake by providing culverts instead of pillars. Construction of culverts will not solve the problem since it would result in destruction of the entire ecosystem of the lake. The proposed terminal station is going to be built in the catchment area of the lake which is impermissible in law. Any alteration to the lake system could adversely affect it. The statement of the respondent that there will be no environmental impact would indicate lack of knowledge. The respondent should not be allowed to proceed with the project implementation without mandatory prior EC. From reply filed by the 7th respondent, it is clear that the 4th and 5th respondents have not obtained any permission from the authorities for the construction of the railway station. It is seen that 0.31.5 ha of land has been transferred only for the formation of railway track. It is not known how the PWD transferred the said extent of the lake for construction of railway track since it would be gifting a water body for alteration by the project proponent. This would be demonstrative of non-application of mind on the part of the 7th respondent. Courts have repeatedly held that construction of over bridges should not affect the flow of water. No inspection report was ever filed before the Tribunal. It is clear from the admissions made by the respondents that the lands now allotted fall in the water spread area of the lake and if the same is appropriated or altered or destroyed it would directly affect the area. The Principle of Sustainable Development would prohibit the same. It is quite clear from the reply that permission has been granted on the condition that bunds should not be formed inside the lake and the water flow should be maintained by constructing bridge on RCC pillars. Finally the learned counsel for the applicant concluded that the steps taken by the 4th and 5th respondents are illegal and they got to be restrained.

Countering the above contentions, the counsel for Southern Railway, who is the main contesting respondent, would submit that the Railway officials along with the Revenue Department officials made a thorough inspection of the alignment suggested by RET 2005. The proposed Kallakurichi Terminal Station is more than 2 km away from the existing bus stand. A decision was taken to locate the railway station near the bus stand and hence present location was chosen which is 1 km away from the bus stand. It is located on the upstream side of the Thenkeeranur tank which was only a dry land. The RDO of Kallakurichi under Exhibit R1 has confirmed the availability of reserve land for railways. The FLS work was commenced in the year 2008 as per the provisions of Railway Engineering Code. The Railways will always honour the provisions of the EP Act, 1986. The Thenkeeranur Lake would remain safe even after implementation of the project. Equally the irrigation and drinking water facility will not be affected in any way and the lake will remain the same for all purposes. Only a small portion of land i.e. 3.15 ha would be used for forming railway line by providing balancing culverts. The same will not affect inflow into the lake storage area. Surplus water would reach the tanks as per existing facilities. A perusal of Exhibit R2 would make it clear that the irrigation capacity of tank will remain the same. The applicant cannot have any grievance on the construction of the proposed Kallakurichi Terminal Railway Station since the same would be on the upstream side of the lake mainly on the northern side and also on the catchment area of the lake. The catchment area would remain the same even after formation of the proposed railway line. The formation of railway line and location of station would not come under encroachment. There is no proposal to acquire either the entire lake or destroy its storage capacity. The tank would serve the intended purposes even after formation of railway line. Thus, there is no environmental impact. In so far as, a small portion of land to an extent of only 3.15 ha in S. No.253 is proposed to be acquired for forming part of the Kallakurichi Terminal Railway Station as there was a demand for the same by the public as evidenced under Exhibit R3 and R4. The same was also recommended by the Revenue authorities. Major part of the station will be located in private dry lands only. Before commencement of field works railways will certainly obtain approvals from various Central and State departments. Thus, the railways will honour the EP Act, 1986. Necessary EC will also be obtained from the concerned department. It is pertinent to note that the things are at the planning stage and physical works will be commenced only after obtaining the approvals as required. There will not be any destruction of existing water body or watercourse by forming a new line as contended by the applicant. The proposed construction would not in any way, affect the agricultural activities since the existing irrigation facilities will continue to remain the same. New line between Chinna Salem and Kallakurichi was not falling within the jurisdiction of District Collector, Thiruvannamalai. Hence, particulars are submitted to District Collector, Villupuram who was consulted at various stages on finalizing the alignment as found in Exhibit R5. His consent was also obtained which is evident in Exhibit R6. Before finalizing the location survey in the year 2008 various merits and demerits were considered. Due to the proposed railway connectivity to the Steel City of Salem and Silicon City of Bangalore, Industrial Hub of Coimbatore, industrial growth in the area would improve manifold. It remains to be stated that the Chinna Salem-Kallakurichi stretch is only 16 km in length and it would not be a wise decision to have the railway station located 3-4 kms away and if done so, it would not cater to the present and future traffic situation. The railways have taken care of all the future expansions in its proposal. A small portion of the Thenkeeranur Lake has to be acquired for forming railway line i.e. 3.15 ha which is equal to 7.78 acres out of the 65 acres of the lake area. The railways would certainly honour the resolution passed by the Thenkeeranur Village Panchayat. Before commencement of field works, the factual position that the irrigation capacity of the lake would not be affected due to the formation of the railway line would be brought to the notice of the villagers through State Revenue authorities and their consent will be obtained. Before finalizing the alignment based on the technical feasibility all public representations were considered to the extent possible. The representations from Commissioner of Sugars and District Collector, Tiruvannamalai will be considered while the railway line is extended to Tiruvannamalai. But the present scope of the work is limited to only formation of new line between Chinna Salem and Kallakurichi. The reserved lands for railway use were to be vacated by the parties as and when required without protest and necessary compensation would be paid to the parties as advised by the Revenue department at appropriate time. Acquisition of a small portion of land in S.No.253 for forming railway line is not only very much essential but unavoidable. Even after the formation of the railway line ground water recharge and irrigation facility will remain the same. Finally, the learned counsel would conclude that utmost care has been taken before finalizing the alignment based on FLS conducted in the year 2008 as could be seen under Exhibit R9 and the railways could ensure that the water bodies would be protected by taking the best possible measures. Hence, the application should be dismissed on account of having no merits in it.

Arguments put forth by the learned counsel for other respondents which stood in support of the case of the Respondent Nos. 4 and 5 are also heard. The Tribunal paid its anxious consideration on submissions made and made a scrutiny of the documentary evidence made available.

As seen above, the applicant, Thenkeeranur Vivasayigal Nala Sangam, a registered society of agriculturists has filed this application seeking intervention of the Tribunal for giving necessary directions restraining Southern Railway shown as the 4th and 5th respondents, from the execution of the new railway line from Chinna Salem to Kallakurichi and also erection of a Terminal Railway Station at Kallakurichi on Village Tank (Lake) on the grounds that the said lake is the main water source for irrigation in and around Thenkeeranur village and also serves for drinking water purpose. The proposed project is in violation of the provisions of EP Act, 1986, EIA Notification, 2006 and the provisions of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.

On scrutiny of the materials made available, the following would emerge as admitted facts: - In pursuance of the sanction of new broad gauge line between Chinna Salem and Kallakurichi in the year 2006, a joint inspection was made by the Railway officials and Revenue Department officials on the alignment in 2008. The RDO of Kallakurichi under Exhibit R1 confirmed the availability of railway lands on the Eastern side of NH 68. Thereafter, FLS work was commenced by the 4th Respondent. According to the 4th Respondent, a piece of land with an area of 3.15 ha in S.No.253 is required for forming railway line by providing balancing culverts. The 4th Respondent has also proposed to construct a Terminal Railway Station at Kallakurichi on the upstream side of the Thenkeeranur Lake which would also form part of the above said piece of land. Following a joint inspection made on 06.09.2011 and 07.09.2011 in respect of Thenkeeranur and other surrounding villages the Revenue Divisional Officer, Tahsildar, Assistant Engineer of PWD, Kallakurichi submitted a detailed report with a finding that the villagers have no objection on transfer of land to an extent of 0.31.5 ha in S.No.253/2 in Thenkeeranur village to the Railways. As per the revenue records, this extent of 0.31.5 ha in S.F.No. 253/2 is not classified as wetland but as water spread area and is classified as 'eri'. Under Annexure A5, District Collector,Tiruvannamalai placed his objections for implementation of broad gauge alignment as per FLS conducted in the year 2008 and also suggested that the scheme should be implemented under RET 2005 instead of FLS 2008. The Thenkeeranur Village Panchayat has passed a resolution unanimously deciding that no encroachment in any manner would be allowed in Lake since it is used for irrigation purpose as noticed under Annexure A6. It is made evident under Annexure A7 issued by the Respondent No.3, PWD, that the lake irrigates an area of 68.17 ha. Representations were also made as seen under Annexure A8. The Hon'ble High Court of Madras in WP 15480/2010 issued a direction to the authorities to consider and pass orders on the representations of the applicant as could be seen under Annexure A10. Under Annexure A12, the State Government has issued administrative sanction for acquisition of lands including lands for construction of Railway Station on the lake. As per Exhibit A3, map issued by the Tahsildar, Kallakurichi, a total area of approximately 8 acres would fall within the lake since, it is shown that the plan to acquire the land would be 406 metres on the West, 412 metres on the East, 72 metres on the South and 72 metres on the North. A letter dated 20.04.2014 written by Deputy Chief Engineer (Construction), Southern Railway as under Annexure A14 would indicate that the lake in S.No.253 has to be utilized for the project. It is further stated that the minimum earth filling in S.No. 253 for forming embankment would be executed at the time of construction duly providing balancing culverts to the extent required. The 6th respondent, Tamil Nadu Pollution Control Board (TNPCB) under Annexure A15 dated 21.06.2013 has informed that action was being taken concerning the destruction of the lake. While the matter stood thus, the applicant has approached the Tribunal for the reliefs.

The 4th respondent Southern Railway has a project of execution of new railway line from Chinna Salem to Kallakurichi for a length of 16 Km and also an additional proposal of erection of Terminal Railway Station at Kallakurichi. The grievance ventilated by the applicant is that the entire village was depending on the agriculture and the only water source available to them is the Thenkeeranur lake which is a main water storage area along with the vast catchment area and if allowed to execute the above project by the 4th respondent it would be not only prejudicial and against their interest but would cause environmental degradation affecting ecology since the project would include conversion of a water body against judicial pronouncements. It is also the pleaded case of the applicant that the proposed project is likely to be commenced and preceded in violation of the mandate under EIA Notification, 2006 and that it should be commenced and carried only after obtaining EC. At the outset, it has to be pointed out that it is candidly admitted by all the respondents, in particular the 4th respondent that prior consent was neither applied nor obtained from MoEF.

The contention put forth by the 1st Respondent that the railway projects do not come under the purview of EIA Notification, 2006 remains to be ignored in view of the mandatory provision made under the Notification.

It would be more apt and appropriate to reproduce the following relevant portion of the Notification:

"In exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986,read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the notification number S.O. 60 (E) dated the 27th January, 1994, except in respect of things done or omitted to be done before such supersession, the Central Government hereby directs that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification".

The very reading of the notification as above would make it abundantly clear whether they are new projects or expansion of existing projects or activities listed in the Schedule to the notification they can be undertaken in any part of India only after obtaining the prior EC from the Central Government or by the SEIAA duly constituted by the Central Government.

In the instant case the 4th respondent has got a proposal to construct a terminal railway station at Kallakurichi and while doing so the activities involve a built up area of more than 20,000 Sq.Metres and therefore, it would attract the mandatory provision of EIA Notification, 2006 for obtaining prior EC since the EIA Notification, 2006 has to be applied to all projects with a built up area of 20,000 Sq.Metres or more irrespective of the nature of the project or activity. Hence, before execution of the project in respect of construction of the Terminal Station at Kallakurichi, the 4th respondent has to apply taking into consideration the proposed entire built up area for the tracks and station and if necessary obtain prior EC from MoEF or SEIAA as the case may be before commencement of that part of the project.

It is not in controversy that the Thenkeeranur Village Lake spreads over an extent of about 27.64 ha comprised in S.No.253 and classified as water course poramboke. According to the 4th respondent, Southern Railway out of the total area of 65 acres of the lake only 3.15 ha i.e. 7.78 acres has to be acquired for the project and this is only a small portion and the said acquisition of the land which is a part of the lake was unavoidable, since the same is required for the execution of the line between Chinna Salem and Kallakurichi for a length of 16 kms and also to have a terminal railway station. It cannot be disputed that the proposed railway connectivity would improve the industrial growth and also would cater to the needs of the public at large. But, at the same time, it should not be forgotten that water bodies are the common property resources of the people though treated as Government properties. They are entrusted with the State authorities who have to hold and manage them as trustees for the benefit of the society at large. It should not be forgotten that the water bodies and water courses are formed naturally for the benefit of the entire mankind in future also as they have been in the past. It is a well settled principle that the State is only a custodian entrusted with the responsibility to preserve them for the benefit of not only the present but also for the future. The natural resources should be preserved by the State in its capacity as a Trustee who should discharge the solemn function for the common good. In the case of M.C.Mehta v.Kamal Nath and others (1997) 1 SCC 388 the Hon'ble Apex Court has held that:

The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax, the Public Trust Doctrine imposes the following restrictions on governmental authority.

"Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third property must be maintained in particular types of uses".

It is true that the execution of the project by the 4th respondent, Railways is for the benefit of the common public. Also, by constructing the project, connectivity to Salem, Bangalore and Coimbatore would improve and this would certainly lead to increase in industrial activities and economic growth. From the documents produced and relied on by the respondents it is evident that 0.31.5 ha of land has been transferred for the formation of railway track. It is contended on the side of the 4th respondent that what is required for forming railway line and also construction of a railway terminal station at Kallakurichi would be an extent of land measuring 3.15 ha in S. No. 253 and there is a proposal for acquiring the same which is very much essential and unavoidable. However, construction of project shall not be at the cost of environment and it should satisfy the principle of Sustainable Development.

Speaking on the doctrine of Sustainable Development, the Hon'ble Apex Court has held in the case of Essar Oil v. Halar Utkarsh Samiti AIR 2004 SC 1834 that:-

This, therefore, is the sole aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other.

A similar view was taken by the Hon'ble Apex Court in Indian Council for Enviro Legal action v. Union of India (1996) 5 SCC 281 where their Lordships stated:

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 economic and other developments. Both development and environment should go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment.

Applying the doctrine of Sustainable Development the Tribunal has to strike a balance between the existence of the water body and its usefulness to the local villagers for irrigation and drinking purposes and the need for the formation of railway track and the purpose which would serve the public at large. As per the revenue records the extent of 0.31.5 ha is not shown as wetland but as water spread area classified as 'eri'. It is seen from the available materials that the Executive Engineer, PWD, Vellaru Division in his letter dated 10.11.2011 has made some suggestions to the 4th respondent to be followed then and the same was forwarded to the District Collector, Villupuram by the Superintending Engineer, PWD. It is pertinent to point out that the 4th respondent has accepted the said suggestions made by the 7th respondent. The suggestions are as follows:

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 water bodies have to be provided over RCC concrete pillars instead of forming bund in the water spread area of Thenkeeranur tank.

Contrary to the above, it is now contended by the 4th respondent that as per the FLS conducted by the Railways in 2008 with regard to the alignment finalized by the Railway Board, the new railway line would be crossing the lake bisecting it and therefore the railway administration has decided to construct three bridges for laying the track and for allowing free flow of water from one side to the other side of the lake and thus there would not be any hindrance for flow of water in the lake. If this is allowed it would be against the consent given for transfer of the above land to the Revenue Department. Having accepted the suggestions made by the 7th respondent, PWD that the railway lines in the cross- section of water bodies would be laid by providing railway bridges over RCC pillars instead of forming bund over the water spread area of the Thenkeeranur tank, the 4th respondent cannot be allowed to say that they are permitted to bisect the lake by laying bund and constructing three bridges for forming the track. The 4th respondent can only be permitted to lay the lines in the cross-section of the lake by providing Railway Bridge over RCC pillars. The 4th respondent cannot be permitted to construct the railway line across the lake by providing culverts instead of pillars as accepted by them. If the 4th respondent is allowed to bisect the lake by constructing bund it would certainly result in destroying the ecosystem of the lake. Hence, while executing the project of laying the railway track across the lake, the 4th respondent shall lay the line by providing Railway Bridge over RCC concrete pillars. Such a course alone would maintain the water-level on all the sides equally. In view of the above facts and circumstances, the 4th respondent can carry on the project pertaining to laying the railway line as stated above in order to ensure the water level of the lake but only after obtaining all necessary permissions and approvals as required by law.

In so far as, the construction of the terminal railway station at Kallalkurichi is concerned it was submitted by the 4th respondent that it would be constructed on private patta lands and land reserved for railway station purpose as per revenue records and the said facility would not affect the water storage capacity of the lake at Thenkeeranur village. It was also further submitted that the construction of the said railway station would be only on a portion of dry land which is away from the lake and not falling in the lake. From the submissions made by the Counsel and also from the affidavit filed on 28.07.2015 which was subsequently withdrawn it was quite clear that the construction of railway station cannot be allowed, within the part of the lake though it is described by the 4th respondent as dry land of the lake. As rightly pointed out by the learned counsel for the applicant that if the construction of the railway station as proposed by the 4th respondent, the same would be a part of the lake in the catchment area.

At this juncture, the 4th and 5th respondents came forward with an affidavit filed by the Deputy Chief Engineer of the 4th respondent. In the said affidavit, it has been categorically stated that the construction of the said Railway Terminal Station is at the extreme edge and away from the lake and not falling in the limits of the lake, that there would be no environmental and ecological impact due to the new construction and location of the said Railway Station and the land belongs to the private party which would be acquired according to the Land Acquisition Act. It is also further stated in the affidavit that before the commencement of field work necessary approvals would be obtained from various Central and State Government departments. The said affidavit is recorded. In view of the undertaking given by the 4th respondent as recorded above, there cannot be any impediment for issuing a direction to the 4th respondent Southern Railway not to construct the proposed Kallakurichi Terminal Railway Station on any part of the lake.

The Respondent Nos.4 and 5, the Southern Railway, are restrained from constructing the Terminal Railway Station at Kallakurichi on any part of the Thenkeeranur Lake and are also restrained from bisecting the lake by forming bunds or raising culverts for laying railway line but shall lay the 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 Respondent No.3, Public Works Department (PWD), is restrained from making transfer or allowing conversion in any part of the said water body namely Thenkeeranur Lake to Respondent Nos.4 and 5, the Southern Railway, beyond 0.31.5 ha which has already been transferred for laying the railway line.

The Respondent Nos.4 and 5, the Southern Railway, shall not commence or execute the project without obtaining prior EC from the MoEF or the SEIAA as the case may be and without obtaining all other necessary permissions/ consent from the authorities concerned as required by the law. The said authorities from whom such EC/Consent/Permission is required to be obtained by the Southern Railway, are also directed to take into consideration all the observations made by the Tribunal in the judgment.

With the above directions, the application is disposed.

No Cost.