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
18 | P a g e
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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