T.N. GODAVARMAN THIRUMULPAD VS UNION OF INDIA AND ORS. & ORS. CASE

T.N. GODAVARMAN THIRUMULPAD VS UNION OF INDIA AND ORS. & ORS. CASE

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

 Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. No. 61370 of 2021 [Report No. 06 0f 2021]

In

Application No. 1440 of 2020

I.A. No. 107884 of 2021

and

I.A. No. 30853 & 30858 of 2022

In

Writ Petition (Civil) No. 202 of 1995

In the Matter of:

T.N. GODAVARMAN THIRUMULPAD

.... Petitioners (s)

Versus

UNION OF INDIA AND ORS. & ORS.

…. Respondent (s)

O R D E R

1. In Interlocutory Application (I.A.) No.1308 of 2015 and

other connected I.A.s in Writ Petition (C) No.202 of 1995, this

Court on 05.10.2015 directed the National Board for Wildlife

(‘NBWL’) to furnish a copy of the orders passed by it relating

to matters of National Parks and Wildlife Sanctuaries. The

Central Empowered Committee (‘CEC’) was given liberty to

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approach this Court by filling an appropriate application, if

they were not satisfied with the decision of the Standing

Committee of NBWL while other aggrieved parties were given

the liberty to approach the appropriate forum.

2. In its 56th meeting held on 17.12.2019, the Standing

Committee of NBWL recommended the proposal for wildlife

clearance for doubling of existing railway line from Castlerock

(Karnataka) to Kulem (Goa) involving 120.875 hectares of

land within protected area and 113.857 hectares of land in

non-protected area reserved forest 7.018 hectares, passing

through Bhagwan Mahaveer Wildlife Sanctuary, subject to

fulfilling certain conditions.

3. The Goa Foundation filed an application before the CEC

on 26.06.2020 stating that the Standing Committee of NBWL

had recommended granting wildlife clearances for doubling

of 26 km stretch of the railway line in Western Ghats from

Castlerock in Karnataka to Kulem in Goa in violation of the

order passed by this Court on 05.10.2015. Apart from the

objection to the project by Goa Foundation, a large number

of appeals/representations were received by the CEC from

scientists, researchers, ecologists, environmentalists,

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lawyers, veterinarians, artists, painters, illustrators,

filmmakers, musicians, sculptures, students, villagers,

tourism and travel trade. After examining the matter in

detail, the CEC submitted Report No.6 of 2021 on 23.04.2021

in the application filed by Goa Foundation. In this report, the

CEC recommended revocation of the permission granted by

the Standing Committee for NBWL for doubling of the railway

line passing through the ecologically sensitive Western Ghats

from Tinaighat-Castlerock in Karnataka to Kulem in Goa

involving 120.875 hectares of land as such permission was in

violation of the guidelines issued by the Ministry of

Environment, Forest and Climate Change (MOEF&CC) under

the Wildlife Protection Act, 1972 and the order dated

05.10.2015.

4. In the said report dated 23.04.2021, the importance of

western ghats eco-system which is one of world’s eight

hotspots was highlighted. It was mentioned in the said report

that the Western Ghats spread across 9 National Tiger

Reserves, 20 National Parks and about 68 Wildlife

Sanctuaries and the landscape forms one of the largest and

most contiguous Protected Area networks in the country.

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5. In so far as the doubling of the railway line from

Castlerock to Kulem is concerned, the CEC examined the

details of the project. According to Rail Vikas Nigam Limited

(‘RVNL’) doubling of existing 342 km line from Hospet to

Murmagao port was sanctioned by the Ministry of Railways at

the cost of Rs. 2127 Crores for enhancing section capacity of

existing single line track. The only railway line between

Hospet and Vasco Port passing through forest land where

there is no alternative as the alignment invariably has to

pass through the forest. The proposed railway doubling line

is parallel to the existing railway line which passes through

same forest along the same corridor. The estimated cost for

the project from Castlerock to Kulem is Rs. 90 crores and the

capacity utilization of the existing line track has increased to

120%.

6. The Standing Committee of NBWL recommended the

proposal made by RVNL for doubling the existing railway line

from Castlerock to Kulem, subject to the condition that the

project proponent will comply with all the conditions imposed

by the Chief Wildlife Warden and will implement the

approved animal passage plan. Further, the annual

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compliance certificate of the stipulated conditions has to be

submitted by the State Chief Wildlife Warden to the

Government of India.

7. The objections raised by Goa Foundation were that the

project involves diversion of significant area of forest land

and sanctuary land and would entail further destruction of

the Sanctuary/National Park and wildlife. According to Goa

Foundation, a large number of trees will have to be felled

within the Bhagwan Mahaveer Wildlife Sanctuary and also,

the integrity of the protected area and wildlife sanctuary

would be severely affected. The Goa Foundation also

contended before the CEC that assessment of proper impact

on wildlife habitat and biodiversity was never carried out

before NBWL approved the project.

8. RVNL stated before the CEC that the objections raised

by Goa Foundation are without merit. According to RVNL,

doubling of railway line would be a gamechanger in the

economic development of the south western part of India.

The proposed doubling track would be at a distance on 5.8

meters from the existing track except certain deviations at

the entry and exit points of the tunnels. To minimize

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disturbance only 51.48 hectares of land has been

requisitioned for diversion. CEC was informed by RVNL that

the new alignment (doubling track) will have 7 major and 74

minor bridges and 23 tunnels in toto. As major portion of the

project of doubling 342 km railway line was completed, the

approval granted by NBWL should not be interfered with.

9. After examining the information furnished by the RVNL

relating to the necessity of doubling of the 26 km railway line

from Caslterock to Kulem which passes through the protected

area and wildlife sanctuary, CEC was of the opinion that the

additional line is not likely to add either to the turnaround

time of the train or loco or to the speed of the train. In view

of the difficult gradient, the movement of traffic requires 5

engines – 3 in the front end to pull the train and 2 behind to

push the train up. Taking note of the fact that the movement

of traffic from Murmagao Port in Goa and Krishnapatnam Port

in Andhra Pradesh to Hospet / Bellary region in Karnataka

was unidirectional from a period between 2013-2014 and

2020-2021 it was observed by the CEC that more than 80%

of the rakes were returning empty. Further, taking note of the

fact that 92% of the goods transported from Goa to

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Karnataka through the line was coal and while observing that

the export of iron ore from Karnataka as a policy was

discouraged, CEC did not recommend the doubling of the

railway line. A perusal of the report of the CEC would show

that the passenger traffic on the said line was also examined.

10. The report of the CEC also referred to the observations

made by the National Tiger Conservation Authority (‘NTCA’)

in its site appraisal report regarding diversion of forest land

for doubling of railway line in the Kali Tiger Reserve, falling in

the Karnataka part of the project. The problems which would

arise in the doubling of railway line due to long rainy season

resulting in delay in completion of the project, disposal of

excavated earth from cutting of trees and tunnel construction

and need for special measures required in view of the

topographical and access related issues as pointed out by

the NTCA have been highlighted in the report of the CEC.

The impact of the doubling of the railway line which would

have a detrimental effect on Wildlife was also noticed by

NTCA according to which the project would severely impact

Wildlife in the region. The NTCA suggested that an

independent and detailed assessment of the cumulative

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impact of the project on wildlife for the entire stretch from

Tinaighat to Kulem should be undertaken. The CEC further

observed in the report that the Standing Committee of NBWL

did not obtain any specific recommendation on mitigation

measures from the Wildlife Institute of India, Dehradun

before approving the proposal in respect of the Goa portion.

11. Taking into account the aforementioned submissions

and suggestions, the CEC recommended to this Court that

the permission granted by the Standing Committee of the

NBWL should be revoked in view of the following: -

i) the doubling of the existing rail line will not have any

positive impact on the gradient and curvature of the

new line and it will operate at the same inefficient

level as the existing line and will be operating with

all the existing severe limitations on running of

trains 'Up the Ghat' and 'Down the Ghat' as that of

the existing line (Ref para 13);

ii) railway line was laid in 1890s when there was no

other rail connectivity available to Goa and at

present the Konkan railway line gives excellent

connectivity to Northern and Southern parts of India.

iii) the Murmagoa Port Trust authorities as well as the

project proponents have submitted that consequent

to changes in government policy to discourage

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import of coal there will be reduction in the coal

import which currently forms more than 90 % of

goods traffic from Murmagoa Port;

iv) the estimate of projected increase in traffic from

Karnataka to Goa furnished by the railways is not

based on facts and is without any sound reasoning

and as statistics shows mostly includes empty rakes

returning to Goa and that despite the change in

policy on import of coal the same has not been

reflected in the projected traffic from Goa to

Karnataka;

v) the current movement of goods to Murmagoa Port

constitutes only about 20% of the rakes going out

from Goa and which leaves a huge unutilised

capacity in the existing single line itself;

vi) there are alternative ports like Krishnapatnam in

east coast available with better rail connectivity for

transport of goods to and from industrial belt of

northern Karnataka and the capacity of the same is

yet to be fully utilised;

vii) the opening of the forest cover in the ecologically

sensitive Western Ghats along the existing line is

likely to invite light demanding invasive weeds like

Mikania species which colonise fast in the open area

and spread to the nearby forest canopy and destroy

the natural forest;

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viii) the increased number of trains and wider openings

through the ecologically sensitive Western Ghats for

laying the track will further fragment the habitat and

will make the movement of wildlife including

arboreal animals across the railway line much more

difficult and dangerous and is bound to result in high

casualties amongst the wildlife;

ix) the railway line cuts across the most important

animal corridor in the Western Ghat landscape

between Karnataka and Maharashtra through the

State of Goa and will be a serious impediment for

movement of long ranging animals like tiger and

elephant.

x) the approval by NBWL to go ahead with the project

has been granted in respect of Goa Portion without

first obtaining the advice of NTCA as statutorily

required under section 38 (0) of the Wild Life

(Protection) Act, 1972;

xi) there is a gross under estimation of the requirement

of virgin forest land for implementation of the project

in as much as the project implementation will require

additional land for road connectivity, temporary

dumping of the excavated earth/blasted stone and

parking of heavy machinery and as such during the

stage of implementation of the project much more

than 120.875 Ha of estimated forest land is likely to

be destroyed; and

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xii) the connectivity between Goa and Karnataka is

being strengthened/improved by way of 4 laning of

NH-4A along the same route and by development of

new airport.

12. We have heard Mr. A.D.N. Rao, learned Senior Counsel

for the CEC, Mr. Prasant Bhushan, learned counsel for Goa

Foundation, Mr. Sanjay Upadhyay, learned counsel for RVNL

and Mr. Balbir Singh, learned counsel for Ministry of Railways.

Mr. Rao supported the report of the CEC and recommended

the revocation of permission granted by NBWL to the

doubling of railway line from Castlerock to Kulem for the

following reasons:

a) The section capacity of entire route was not being

fully utilized by the railways due to severe restrictions

owing to the alignment and the gradient of the tough

terrain. The capacity utilization was below 50% due to

severe constraints in the Ghat Section.

b) In the proposed second line, there would be 23

tunnels which would fall outside the existing right of

way and would tantamount to formation of a new line

altogether.

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c) Even according to RVNL, the traffic on Konkan Railway

is frequently dislocated due to landslides, breaches etc.

especially during the rainy season. Permitting

construction of a second line between Kulem and

Caslterock where the gradient is as high as 1:37 would

only invite grave danger of a further disaster.

d) A third railway line from Toranagallu Junction to

Krishnapattam Port would be a better alternative than

construction of a second line connecting Murmagao

Port to the industrial belt in Bellary district.

e) The disposal of muck deposit which is likely to be

generated in huge quantities would pose a difficult

challenge for the Railways and for which adequate

arrangement has not been kept in place by RVNL.

f) The opinion of NTCA was not taken by the NBWL even

when the Goa part of the project includes an important

tiger reserve and where instances of killing of tigers

have been recorded.

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g) Preservation of biodiversity and conservation of the

eco-system of the western ghats outweighs the need

for doubling the railway line.

13. On behalf of RVNL, the project proponent, it was

submitted that the project is super critical and it was

sanctioned in 2011-2012. Connectivity to Goa and the

hinterlands was taken into account by the Ministry of

Railways before the project was sanctioned. All statutory

clearances have been obtained before undertaking the

doubling of the railways line. Stage II clearance was granted

by the Ministry of Environment and Climate Change on

12.04.2022 for undertaking doubling in the State of

Karnataka and Goa. It was further stated that the Bhagwan

Mahaveer Wildlife Sanctuary has not been notified as a Tiger

Reserve under the Wildlife Protection Act, 1972 and therefore

there was no need for RVNL to approach the NTCA seeking a

report for the Goa part of the Project. It was contended by

RVNL that the CEC failed to take into account that

observations of the NTCA pertained to Danderi Wildlife

Sanctuary in the State of Karnataka and not with respect to

the project falling within the State of Goa. The project

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proponent attempted to justify the project by contending that

State-of-the-Art wildlife mitigation measures have been

adopted by the project proponent, implementation of which

is being monitored by the experts. RVNL also brought to the

notice of this Court a Comprehensive Biodiversity and

environment assessment undertaken by the Indian Institute

of Science, Bengaluru for Castlerock and Kulem stretch in

August, 2017. It assured this Court that Rail over-bridges

and Road under-bridges would be constructed for crossing of

animals. This Court was further informed that there has not

been a single instance of death of any major animal,

including tiger, since 1890s on the railway track. An

assurance was given to this Court that there would be no

additional disturbance to the forest area as no separate

pathway would be constructed in the forest area for

transportation of goods and machinery which would be

carried out in the most ecologically efficient manner. Only

such of those trees which are essential will be felled and

compensatory afforestation would be taken up. Permission

was sought from NBWL for sanction of doubling of railway

line from Castlerock to Kulem after examining all the other

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alternatives. RVNL contended that the material that was

submitted was not taken into consideration by the CEC

before recommending for revocation of the license granted

by the NBWL for doubling of the railway line.

14. According to Mr. Bhushan, learned counsel for the Goa

Foundation, the approval of NTCA is mandatory as per

Section 38 (O)(g) of the Wildlife Protection Act, 1972. He

submitted that Bhagwan Mahaveer Wildlife Sanctuary is an

important tiger corridor which needs to be protected. The

NTCA approval submitted for the State of Karnataka has to be

considered and a cumulative study has to be taken up for

protected species in Goa as well. Goa Foundation apprehends

that the doubling of railway line would increase the dangers

of severe environmental degradation owing to massive

cutting of trees which would then have an adverse impact on

the climate and temperature of the protected area apart

from habitat discontinuities, impact on species etc. The

further complaint of Goa Foundation is that advice of Wildlife

Institute of India was not obtained for Goa portion for

doubling of railway line. Goa Foundation alleged that the

increase in the annual requirement of the coal and other raw

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material was not adequately demonstrated by RVNL. It

stated that there is no basis for the contention of RVNL that it

anticipates increase of container traffic on the line. Goa

Foundation recommended acceptance of the report of CEC

and revocation of the permission granted by the NBWL for

doubling the railway line between Castlerock and Kulem.

15. Adherence to the principle of sustainable development

is a constitutional requirement. While applying the principle

of sustainable development one must bear in mind that

development which meets the needs of the present without

compromising the ability of the future generations to meet

their own needs. Therefore, Courts are required to balance

development needs with the protection of the environment

and ecology1

. It is the duty of the State under our

Constitution to devise and implement a coherent and

coordinated programme to meet its obligation of sustainable

development based on inter-generational equity2

. While

economic development should not be allowed to take place

at the cost of ecology or by causing widespread environment

destruction and violation; at the same time, the necessity to

1 T.N. Godavarman Thirumulpad v. Union of India (2008) 2 SCC 222

2 A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718

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preserve ecology and environment should not hamper

economic and other developments. Both development and

environment must 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 environment3

.

16. In Vellore Citizens’ Welfare Forum v. Union of

India

4

, this Court held that the ‘Precautionary Principle’ is an

essential feature of the principle of ‘Sustainable

Development’. It went on to explain the precautionary

principle in the following terms: -

(i) Environmental measures — by the State Government

and the statutory authorities — must anticipate,

prevent and attack the causes of environmental

degradation.

(ii) Where there are threats of serious and irreversible

damage, lack of scientific certainty should not be used

as a reason for postponing measures to prevent

environmental degradation.

(iii) The “onus of proof” is on the actor or the

developer/industrialist to show that his action is

environmentally benign.

3 Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281

4 (1996) 5 SCC 647

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17. The principle of precaution involves the anticipation of

environmental harm and taking measures to avoid it or to

choose the least environmentally harmful activity. It is based

on scientific uncertainty. Environmental protection should not

only aim at protecting health, property and economic interest

but also protect the environment for its own sake.

Precautionary duties must not only be triggered by the

suspicion of concrete danger but also by justified concern or

risk potential5

.

18. A situation may arise where there may be irreparable

damage to the environment after an activity is allowed to go

ahead and if it is stopped, there may be irreparable damage

to economic interest6

. This Court held that in case of a

doubt, protection of environment would have precedence

over the economic interest. It was further held that

precautionary principle requires anticipatory action to be

taken to prevent harm and that harm can be prevented even

on a reasonable suspicion. Further, this Court emphasises in

the said judgment that it is not always necessary that there

should be direct evidence of harm to the environment.

5 A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Other (1999) 2 SCC 718

6 M.C Mehta v. Union of India (2004) 12 SCC 118

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19. Keeping in mind the aforesaid principle of law on

sustainable development and precautionary principle, we

proceed to examine whether the recommendation made by

the CEC should be accepted. Doubling of the railway line

between Castlerock to Kulem is a part of the critical project

undertaken by the Ministry of Railways in the year 2011 in

public interest. Whether the justification for doubling the

railway line would outweigh the environmental concerns

raised by the Goa Foundation which found favour with the

CEC is the question that falls for determination. We are of

the view that the CEC is right in its conclusion that the

proposal for the doubling of the railway line between

Castlerock to Kulem by NBWL should be revoked for the

reasons as stated hereinafter.

20. The Ministry of Railways or RVNL have failed to provide

any substantial basis for the requirement of doubling the

railway line by addressing the impact which it would have on

the habitat and the damage that it would cause to the

environment. RVNL attempted to justify its decision on the

ground that there is a likelihood that the requirement of coal

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and other raw materials would be doubled in the future and

the proposed project is very much essential for

transportation of said goods. Reliance was placed by RVNL

on a Parliamentary clarification dated 02.02.2022 and a

letter of the Ministry of Power, Government of India to argue

that there is no likelihood of shift from coal-based economy.

We are in agreement with the CEC that the requirement of

coal can be met by utilising the Krishnapatnam port which is

a viable alternative for transportation of coal. The said

suggestion would also prevent the degradation of the

Western Ghats. Even according to RVNL, traffic on Konkan

railway line is frequently dislocated due to landslides,

breaches etc. especially during the rainy season. In view of

the difficult terrain having sharp curves and gradient as high

as 1:37 for the proposed project, any further construction

would invite a great disaster in the sensitive areas of Western

Ghats as well.

21. The landscape in which the railway line is proposed to

pass is an important tiger corridor, connecting the three

States of Goa, Karnataka and Maharashtra. The report

prepared by the NTCA regarding the viability of such a

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railway line is only for the Karnataka part of the project. No

such report has been prepared for the Goa part. The

Standing Committee of NBWL ought to have sought for a

report from NTCA on the Goa part of the project before

granting approval for the doubling of the railway line

between Castlerock to Kulem in view of the fact that it is an

important tiger corridor where instances of killing of tigers

have been reported. We find merit in the recommendations

made by the CEC regarding the necessity of taking into

account the actual loss of the wildlife habitat by the

construction activity for the doubling of the railway line for

which heavy machinery would have to be moved and crusher

units will have to be established for dumping construction

material. The point raised by RVNL before CEC regarding

the enhancement of connectivity between Goa and

Karnataka by the proposed project was rightly rejected on

the ground that there was a proposal for 4-lanning of

National Highway-4 along with the same route and

augmentation of air connectivity to Goa. We are unable to

uphold the approval granted to the project by NBWL on the

basis of the assurance given by RVNL that all possible

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mitigation measures shall be taken to protect bio-diversity

and eco system of the protected areas under the Wildlife

Protection Act, 1972. RVNL has proposed to undertake

impact assessment, thorough study of long-term impact,

planning of various mitigation measures for safeguarding

interest of wildlife habitat and flora and fauna. RVNL has also

proposed to construct under-passes/overbridges at identified

locations of track crossings by wild animals to ensure safe

crossings of tracks by animals. CEC in its report submitted

that it was noticed during the site visit that it was not

possible to construct any sort of under-passes at the said

location. Therefore, the mitigation measure proposed to be

undertaken by RVNL is not clear. The report prepared by

Indian Institute of Science, Bengaluru, “Biodiversity and

Environmental Assessment of proposed doubling of railway

track between Kulem and Castlerock in Goa-Karnataka” relied

upon by RVNL was considered by CEC which observed that

according to NTCA the study report of Indian Institute of

Science, Bengaluru lacks in critical assessment, particularly

of project impacts. NTCA further suggested that there

should be an independent and detailed assessment of the

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cumulative impact of the project for the entire stretch from

Tinaighat to Kulem.

22. It is necessary that there should be a detailed study

and analysis of the impact of the proposed project on the biodiversity and ecological system of the protected areas under

wildlife sanctuary. A detailed study undertaken by NTCA on

the viability of the project for the Goa part is essential in view

of the Bhagwan Mahaveer Wildlife Sanctuary being an

important tiger corridor. Even according to NTCA, an

independent and detailed assessment of the cumulative

impact of the project for the entire stretch from Tinaighat to

Kulem has to be undertaken. The impact of the increase of

section capacity by 2.5 times than by doubling the railway

line in comparison to the single line along with increased

mobility on wildlife problems in terms of sound pollution,

vibrations etc. has not been taken into account by the

Standing Committee of NBWL while recommending the

project. Assessment of the impact which the project would

have on the environment, especially in the protected area

and wildlife sanctuary taking into account all the major

factors such as the impact on the habitat, species, climate,

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temperature etc. caused due to felling of trees (not only for

the laying of railway tracks but also for the secondary works

such as setting up machinery, disposal of waste, and putting

in place various mitigation measures etc.), movement of

trains, human-wildlife interactions would have to be strictly

undertaken before the project is considered by the NBWL.

There is also no credible supporting data for the projections

that are given by RVNL relating to the traffic between

Karnataka and Goa project for the period 2022-2023 and

2030-2031 and there is no explanation regarding the

projected traffic for the next 4-5 years which is required for

the completion of the construction of the project. Such data,

projections and speculations will have to be supported by an

independent and credible source before undertaking any kind

of construction activity in the Western Ghats which is world’s

eight hotspots of biological diversity.

23. For the foregoing reasons, we uphold the conclusion of

the CEC and revoke the approval granted by the Standing

Committee of NBWL for doubling the railway line between

Castlerock to Kulem. However, this will not preclude the

RVNL to carry out a detailed analysis on the impact of the

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proposed project on the biodiversity and ecology of the

protected areas under the wildlife sanctuary as indicated

hereinabove and then submit a fresh proposal to the

Standing Committee of NBWL which shall be considered in

accordance with law.

24. For the aforementioned reasons, the above

Interlocutory Applications are disposed of.

…………….....................J.

 [L. NAGESWARA RAO]

……...............................J.

 [B. R. GAVAI]

 ……...............................J.

[ANIRUDDHA BOSE]

New Delhi,

May 09, 2022.

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