Petitioners who are residents of the Aluva express concerns about the illegalities in construction activities being undertaken by Kochi Metro Rail Ltd. (for short KMRL). 2. The complaint of the petitioners is with reference to starting a Metro Rail Yard for repair and maintenance of carriages, engines and coaches of the metro rail trains in about 50 acres of land. It is contended that despite such a limited requirement about 300 acres of paddy land and wet land are being filled up without conducting any Environmental Impact Assessment (EIA) study in the said area, which is also in gross violation of the provisions of Kerala Conservation of Paddy land and Wet land Act, 2008 (hereinafter referred as the Act). Petitioner submits that despite various objections from among the public and even the local Panchayat the Government by virtue of Exhibits P21 and P22 permitted reclamation/conversion of an extent of 52.11 acres. Petitioners further contend that an attempt is being made for acquiring a total extent of 1000 acres for constructing a Metro village. This according to the petitioners is without conducting any study in the matter and conversion of such Paddy field; water bodies etc. would cause huge environmental impact in the area. It is submitted that no study had been conducted for starting such a Metro village, which is apparently a commercial venture of KMRL. That apart large-scale reclamation activities are going on in the area without obtaining any permission or conducting any study in the matter relating to environmental issues. Petitioners therefore while challenging Exhibits P21 and P22 seeks further directions to prohibit the respondents from converting the paddy fields and wet lands in the area in question. Further petitioner has a case that there was no necessity to acquire any land over and above 50 Acres since a more suitable dry land was available in survey number 1087/1G in Thrikkakara North Village, which belongs to the Government, which could be utilised for metro rail projects and any ancillary structures. This according to the petitioners could avoid acquisition of about 250 acres of land for Metro village and payment of such huge cost by way of land value and it could also avoid the environmental issues on account of filling up paddy field, wet lands and water sources etc.
3. When the writ petition came up for admission, Respondents 11, 10 and 13 were called upon to get instructions. Statement / counter affidavits were filed on their behalf controverting the allegations raised by the petitioners.
4. In the statement filed by 9th respondent, Special Thahsildar (Land Acquisition), it is interalia stated that as per Government order dated 2/4/2012 produced as Annexure –A, reclamation was permitted in respect of 16.6004 Hectares in terms of section 10 of the Act. By virtue of orders dated 18/10/2012 and 1/1/2013 Government sanctioned reclamation of an extent of 0.1351 Hectares, 1.4124 Hectares, and by Annexure - D dated 8/4/2013 sanction was accorded for reclaiming a further extent of 3.0765 hectares and 0.3195 Hectares under section 10 of the Act. It is therefore pointed out that necessary permission is available for conversion of 22.2183 Hectares of land, which has been acquired for the purpose of maintenance yard for the Kochi Metro Rail Project.
5. It is further indicated that 94.5255 Hectares of Paddy land lying adjacent to the land acquired for maintenance yard is required for construction of a Metro village. Sanction had been approved for acquiring the said land on condition that EIA study has to be completed with appropriate mitigating strategy. Annexure- E is the said Government order dated 10/9/2013. It is further stated that in addition to 22.2183 Hectares already acquired for the maintenance yard a further extent of 1.867 Hectares was demanded by Delhi Metro Rail Corporation, the authority who is entrusted with the clearance of the maintenance yard. Therefore the total requirement of land for maintenance yard is 23.6050 Hectares. Further it is indicated that an agency has been entrusted for conducting the social impact and EIA study in regard to the land proposed to be acquired for metro village. It is further reiterated that reclamation is being done only in the area which is now being used for constructing the metro rail yard and no steps were taken for conversion of any other land earmarked for metro village, which will be done only after conducting all further studies in that regard.
6. Counter affidavit is filed by the 11th respondent KMRL. In addition to what is stated by the 9th respondent it is further stated that EIA is not required for metro rail project work. But since the external funding agency has insisted for conducting such study, the government has given conditional approval for acquisition of land for starting metro village project on obtaining necessary study in that regard. It is further stated that the area required for coach maintenance yard and it’s alignment has been fixed, measured and approved by the 12th respondent DMRC. It is stated that presently reclamation is being done only for the maintenance yard and not in respect of the Metro village, and the same will be done only after necessary EIA study. The 12th respondent has filed counter affidavit indicating that area for maintenance yard for Kochi Metro is identified in the detailed project report. Maintenance yard has to be near to the terminal station and all the train sets required for the operation are to be brought to the depot and has to be tested and commissioned before operating it in the viaduct between AIuva and Muttom. After each days operation all train sets are to be brought to the depot for inspection, maintenance and cleaning. The respondent also narrates the facilities that are to be provided in that regard and it is contended that it is after conducting a detailed study of the project that the land was identified. It is also indicated that Muttom yard will be the nerve centre of the entire operations of Kochi Metro and it is the most appropriate place. That apart the earthwork for Muttom yard was awarded as early as in March 2013. That apart DMRC has conducted proper study for the Muttom depot in relation to integrated flood assessment through the Department of Civil Engineering, Government Engineering College, Thrissur. The team of experts were headed by a renowned expert Dr.N.Saji Kumar, who has doctorate in water resources management from IIT, Madras. The recommendations, so made are implemented while executing the works.
7. Heard the learned counsel for the petitioners Sri. Dinesh R. Shenoy, learned senior counsel Sri. Jaju Babu appearing on behalf of the 11th respondent, senior Government Pleader Sri. Tom K. Thomas appearing on behalf of the Government and Smt.Latha Krishnan appearing on behalf of the 12th respondent.
8. The main contention urged by the petitioners is with reference to the lack of conducting EIA study before proceeding with the reclamation and other activities in respect of the land set apart for metro yard as well as metro village. In regard to the metro yard, in which the area allocated is about 50 Acres, though the learned counsel for the petitioners relied upon EIA notification dated 14.9.2006, the list of projects for which prior environmental clearance is required in terms of the schedule, does not contain a Rail project or for putting up railways. Therefore, there is no mandate which prescribes EIA clearance for Metro Yard.
9. As far as Metro Village is concerned, affidavits are filed on behalf of 9th, 11th and 12th respondents inter alia stating that M/s. Senes India Pvt. Ltd., Noida is entrusted to conduct study on social impact and EIA in Muttom Coach Maintenance Yard. It is further stated that the Metro Village Project will not be implemented without studying the environmental impact of the various activities proposed to be undertaken by them. It is further indicated that the Government has specifically issued orders to acquire and reclaim the paddy field upon the recommendation of the Local Level Monitoring Committee and the only condition laid down is with respect to metro village by insisting that the land has to be reclaimed only after conducting EIA study.
10. The 9th respondent also has filed an affidavit stating that the Government has accorded conditional approval for acquiring an extent of 94.5255 hectares of paddy land lying contiguous to the land acquired for Metro Maiintenance Yard for construction of Metro Village subject to the condition that EIA study has to be completed with appropriate mitigating strategy as suggested by the concerned agency. GO (Rt) No. 1609/2013/AD dated 10.9.2013 is the said Government Order, which is produced as Annexure- E. Therefore, the apprehension expressed by the petitioners with reference to the lack of EIA study with respect to Metro Village is clearly out of place. As already indicated, as far as Metro Coach Maintenance Yard is concerned, which is part of an infrastructure for running the railway, there is no specific provision under the notification dated 14.9.2006 for obtaining such an EIA study.
11. The next contention urged by the petitioners is with reference to the reclamation of paddy field and wet land without getting permission from the Government in terms of the Act. The 9th respondent has produced Annexures A, B, C and D to indicate that necessary permission had been obtained under Section 10 of the Act, 2008 in respect of 22.2183 Hectares of land for the purpose of the maintenance yard for the Kochi Metro Rail Project. This fact is not disputed as well. Therefore, once such permission is granted, the petitioners cannot have any complaint regarding the violation of the provisions of the Act. The challenge to Ext.P21 and P22 is therefore without any basis, since while granting permission Government was exercising a statutory power and one cannot contend that the said power is not exercised in public interest and for a public purpose.
12. Another contention urged by the petitioners is that apart from the land permitted to be reclaimed under the provisions of the Act, a site visit would show that about 300 Acres of land had been reclaimed without permission, which includes paddy land, wet land, water sources etc.
13. In the counter affidavits filed by the respondents, they have categorically denied the aforesaid averments. It is contended by them that only an extent of 22.21 Hectares of land had been acquired and there is a proposal for acquisition of further 94.5255 Hectares of paddy land lying contiguous to the land acquired for the Metro Yard. It is stated that the said area will be reclaimed only after complying with the conditions specified in the order at Annexure- E and necessary EIA study is conducted. It is further indicated that in addition to 22.2183 Hectares of land already acquired for the maintenance yard, KMRL was requested for a further extent of 1.3867 Hectares and therefore total area now required by the Metro Maintenance Yard is 23.6056 Hectares and proceedings are initiated for acquiring additional extent of land. It is stated that the reclamation is going on only in respect of the aforesaid land permitted to be filled up and the apprehension expressed by the petitioners is absolutely incorrect. In the counter affidavit filed by the 11th respondent, it is indicated that they have started reclamation activities after complying with the conditions of the Government Order. The land level is raised only at +3.75 meters from the sea level when compared to the Highway, which is raised to +12 meters from the sea level. It is further indicated that as per the report obtained by the Local Level Monitoring Committee, it is indicated that no agricultural activities were being taken in the said area for the last 8 years. It is also indicated that in regard to the source of water flow and dependability of water, the 12th respondent has proposed to construct ponds in different sizes to preserve and harvest rain water. Prevailing canals will be proposed to be relocated and maintained as such with a width of 6 meters and de-silting is being carried out periodically. It is reiterated that reclamation has been carried out only with reference to the land allotted in terms of Exts. P21, P22, R11(a) and R11(b), permissions granted for reclaiming paddy land. That apart, additional area of 1.3867 Hectares is also being reclaimed for which conditional order is already granted. It is therefore the case of the respondents that they have not carried out any reclamation in respect of any additional land other than what has been permitted for the Metro Yard.
14. The petitioners in the writ petition sought for an interim direction to depute an Advocate Commissioner to verify regarding the reclamation activities being carried on in the area. The learned counsel for the petitioner relies upon Exts. P34 to P35 to indicate that though directions were issued by the Tahsildar to the Village Officer verify whether any reclamation is being carried on in the area over and above 50 Hectares, the village Officer reported that their inability to verify tha same for lack of records. This, according to the petitioners, is a malafide act on the part of the revenue authorities in order to conceal the illegal reclamation being carried on in the area.
Having regard to the specific contentions urged by the respondents that they have not reclaimed any extent of land other than what is now permitted for the maintenance yard, I do not think that there is any reason to doubt the genuineness of the contentions urged by them. The petitioners have not produced any materials to indicate otherwise, other than contending that the photographs produced as Ext. P38 series. That apart, the petitioners are not in any way aggrieved by the reclamation being carried on in the area as their land is not being affected. Secondly, they have not attempted to take any measurement with reference to the area reclaimed. When the Governmental authorities and KMRL submit that they have only reclaimed such extent of land which they have been permitted to do so, coming around 52 Acres, I do not find any reason to doubt the contentions urged by them and therefore I do not intend to depute any Commission to verify the correctness of their statements.
15. The next contention urged by the petitioners is with reference to the location of the maintenance yard and the metro village. A specific contention is raised with reference to the availability of more than 100 Acres of dry land in Sy. No. 1087/1G of Thrikkakara North Village, which, according to the petitioners, can be utilised for the aforesaid purpose. Since the said land does not require any reclamation the same is more suitable and no acquisition will be required.
16. First of all, location and maintenance of the yard or the proposed metro village, as the case may be, is purely within the discretion of the project proponents and the petitioners cannot have a say in the matter. Expert agencies like DMRC is involved in the matter of selection of appropriate site for the yard as well as the metro village. If they have identified certain area and it is approved by the Government, being a highly technical matter, being done with such professional expertise, this Court cannot interfere with the same.
17. As far as the availability of other puramboke land is concerned, if the petitioners have a case that the same is in possession of other persons who have no right to hold the said puramboke land, definitely, it shall be open to the petitioners to agitate the issue in other proceedings, which cannot be clubbed with this writ petition. Such right of the petitioner is left open to be decided in appropriate proceedings.
18. Learned counsel for the 11th respondent referred to the judgment of the Supreme Court in G. Sundarrajan v. Union of India and others, (2013) 6 SCC 620. Paragraphs 201 and 203 are relevant, which read as under:
“201. We have, therefore, to balance “economic scientific benefits” with that of “minor radiological detriments” on the touchstone of our national nuclear policy. Economic benefit, we have already indicated has to be viewed on a larger canvas which not only augment our economic growth but alleviate poverty and generate more employment. NPCIL, while setting up the NPP at Kudankulam, have satisfied the environmental principles like sustainable development, corporate social responsibility, precautionary principle, inter-/intra- generational equity and so on to implement our National Policy to develop, control and use of atomic energy for the welfare of the people and for economic growth of the country. Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21.
202. Public money running into crores and crores of rupees have already been spent for the development, control and use of atomic energy for the welfare of the people and hence, we have to put up with such “minor inconveniences”, “minor radiological detriments” and “minor environmental detriments” in our lives because the benefits we reap from KKNPP are enormous since nuclear energy remains as an important element in India’s energy mix which can replace a significant part of fossil fuels like coal, gas oil, etc.
203. The necessity of establishing KKNPP at Kudankulam has elaborately been discussed in the earlier part of the judgment, hence is not repeated. Justification for establishing KKNPP at Kudankulam, therefore, has been vindicated and all safety and security measures have already been taken, and necessary permissions and clearances have been obtained from all statutory authorities. Apprehension expressed by some sections of the public that if the units are commissioned or put into operation, it will have far-reaching consequences, not only on the present generation, but also on the future generation, of the possible radioactive effects of the units, in our view has no basis. A few of them raised the apprehension that it might repeat accidents like the one that had happened at Three Mile Island, Chernobyl, Union Carbide and Fukushima, etc. Apprehension, however legitimate it may be, cannot override the justification of the project. Nobody on this earth can predict what would happen in future and to a larger extent we have to leave it to the destiny. But once the justification test is satisfied, the apprehension test is bound to fail. Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.”
19. Having regard to the law laid down by the Supreme Court, it is clear that, this is also a project for importance to the State as it is intended for increasing the infrastructural facilities in the city of Kochi and the State as well and therefore the project cannot be stalled by raising unnecessary controversies. True that there might be some infirmities in the decision making process. But such infirmities or even to certain extent illegalities should not be a reason to forget or discard the public interest or public purpose involved in the matter. Personal opinions, private interest, trivial issues, minimal damages to the environment should always give way to larger public interest.
In the said circumstances, I do not find any reason to interfere with the project at this stage of the proceedings and accordingly, the writ petition is dismissed.
Sd/- A.M. Shaffique, Judge.
Tds/