WP(MD)No.9112/2009 W.P.(MD)No.9510/2009:
1.Union of India, rep.by its Secretary, New Delhi.
2.The District Revenue Officer cum Competent Authority, National Highways (Land Acquisition), Collectorate, Tiruchirappalli-1.
3.Chief Engineer, Public Works Department (Water Resources Organisation), Subramaniapuram, Tiruchirapalli-620 020.
4.Project Director, Office of the Project Director, National Highways authority of India (NH-67) 10,Kamadhenu Nagar, Karur-639 001.
5.State of Tamil Nadu, rep.by The District Collector, Tiruchirapalli District, Collectorate, Tiruchirapalli-620 001.
6.G.Narayanan Trust, rep.by its Managing Trustee, Sasthri Road, Tennur, Tiruchirapalli-620 017.
7.P.Ayyakannu, General Secretary, Barathiyar Kissan Sangam, Tamil Nadu, 14, Pudukallar Street, Musiri, Trichy District.
8.L.Krishnamoorthy, President, Thayanoor Panchayat, Srirangam Taluk, Trichy District. ... Respondents in WP 9510/2009 (7th Respondent impleaded as per Order in MP(MD)No.4 of 2009, dated 23.12.2009.) (8th Respondent impleaded as per Order in MP(MD)No.5 of 2009, dated 23.12.2009.) W.P.(MD)No.9112/2009 Writ Petition under
Article 226 of the Constitution of India praying for issuance of a writ of certiorari to call for the records from the 4th respondent in connection with the order passed under Na.Ka.No.C-4/29527/2007, dated 26.08.2009, and to quash the same and the new proposal made as per the Notification on 18.07.2009.
W.P.(MD)No.9510/2009 Writ Petition under
Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records relating to the proceedings of the 2nd respondent (D.R.O.) in Na.Ka.C4-29528- 2007, dated 26.08.2009, quashing the same and consequently directing the Project Officer to either adopt the old alignment in respect of the four way lane road laying through the tank beds of Pirattiyur, Kallikudi and Punganur Tanks and directing the Project Officer to consider shortening of NH 67 road by changing the alignment of the road from NH 45-B Panchapur point to straightly reach at anywhere in between Mullikarumbur, Adavathur West and Adavathur East, avoiding the three tanks.
For Respondents 1, 3 & 4 in ... Mr.R.Janakiramulu, WP 9112/2009 & RR 1,2,3 & 5 Spl.Govt.Pleader.
in WP 9510/2009 For Respondents 7 & 8 ... Mr.Veera.Kathiravan in WP 9510/2009 :COMMON ORDER (Order of the Court was made by S.NAGAMUTHU,J)
Since common issues are involved in both the writ petitions, they were heard together and they are disposed of by means of this common order.
2.The petitioner in W.P.(MD)No.9112 of 2009 is an Association known as 'Tamil Nadu Agriculturists Association'. Its members are agriculturists, owning agricultural lands in and around Manikandam Panchayat Union limits in Trichy District. Its main function is to protect the welfare and well-being of agriculturists. Similarly, the petitioner in W.P.(MD)No.9510 of 2009 is an agriculturist, having lands in Kallikudi Village in Manikandam Panchayat Union and he has come up with the said writ petition by way of public interest litigation.
3.The common grievance expressed in these writ petitions is as follows.
(a)Trichy-Karur bye-pass road, forming part of NH-67, has been proposed to be widened. For that, already a project has been approved by the Central Government and contract has also been floated by the National Highways Authority of India, the 2nd respondent in W.P.(MD)No.9112 of 2009. It was proposed to lay the said bye-pass road across Kallikudi Tank and Punganoor Tank. These two tanks are irrigation sources for about 2500 acres of ayacut lands in Punganoor, Thayanoor, Adavathoor, Pallakadu, Sunnambukaranpatti, Kalingan Kadu, Ammasi Gounda Kadu, Savariarpuram, Allithurai, Melapettai, Somarasampettai, Santhapuram, Inianallur, Malaipatti, etc. There are sluices in both the tanks to regulate flow of water for irrigation purposes.
(b)Originally, it was planned to lay the said road on the western portion of these two tanks. It is admitted that the said alignment was initiated by the Project Director, National Highways Authority of India, Karur, and the same was approved by the State Government and finally by the Central Government. It also appears that based on the same, further proceedings were initiated by the Project Director to request the Acquisition Authority, namely the District Revenue Officer, to acquire the required lands for forming of the said road.
(c)While so, some of the agriculturists, who are benefited by Kallikudi Tank, raised objections for the formation of the said road across Kallikudi Tank on the ground that such road formation would materially affect their irrigation resources. It appears that on considering the said objection, the District Revenue Officer had submitted a report to the District Collector. Based on the same, the District Collector has requested the Project Director to realign the said road. However, the Project Director expressed his inability to change the alignment since the alignment has already been approved by the National Highways Authority of India, New Delhi. Even then, a sketch showing realignment was drawn so as to lay the road across Kallikudi Tank as well as Punganoor tank through the eastern portion of the said tanks. It appears that on the recommendation of the District Collector, the State Government has forwarded the said proposal, with a request to the National Highways Authority of India to consider the same and to approve the realignment. But, the fact remains that the National Highways Authority of India has not so far approved the realignment.
(d)While so, the Acquisition Authority, namely the District Revenue Officer, has issued a notice under the National Highways Act intending to acquire certain lands for the purpose of forming the road as per the proposed realignment. The agriculturists of both the villages submitted their objections for the same to the District Revenue Officer and he has rejected the same. The said order of rejection is challenged in both the writ petitions. They have also prayed for consequential direction to the Project Director to either adopt the old alignment or to change the alignment afresh so as to ensure that the road does not pass through both the tanks.
4.The District Revenue Officer/Competent Authority has filed a separate counter, wherein it is stated that he has no part to play with regard to the alignment finalized for widening the road. It is further stated that since the proposals emanated from the Project Director, National Highways Authority of India, Karur, publication under Section 3(A)(1) of the National Highways Act was issued. As soon as the said publication was made, there were objections raised by agriculturists. A writ petition in W.P.(MD)No.7390/2009 was filed before this Court, in which this Court, by order dated 07.08.2009, directed the Competent Authority/District Revenue Officer to consider all such objections and to pass appropriate orders. It is further stated that on considering such objections and after holding necessary enquiry, the impugned order was passed on 26.08.2009 under
Section 3(C)(2) of the National Highways Act.
5.In the counter filed by the District Collector, it is stated that the District Collector has also no role to play in the land acquisition proceedings. According to him, the Competent Authority/District Revenue Officer inspected the lands and submitted a report stating that there were objections for laying the road as per the original alignment and in view of the said objections, there was a meeting held in the presence of Revenue officials, National Highways Authority Officials and the agriculturists, in which the agriculturists were assured that realignment would be formed, which would safeguard the irrigation rights of the agriculturists. It is further stated that in one such meeting, a combined decision was taken to reduce the length of the alignment passing through the above tanks. It is further stated that the new alignment would reduce the length of the alignment from 550 metres to 150 metres in Kallikudi Tank and from 1350 metres to 1000 metres in Punganoor Tank. This proposal was accepted by one and all and that is how the same has been sent to the National Highways Authority for approval.
6.The Project Director, National Highways Authority of India, Karur, in his counter has stated that the proposal of shifting the alignment from the original alignment was made because of the objections raised by some of the agriculturists. As per the present realignment, the length of the road passing through the tanks has been considerably reduced. It is further stated that in the event, the present realignment is found to be unworkable and the same draws serious objections from the agriculturists, the National Highways Authority of India is ready to consider any alignment, whether it is old or new, if the District Administration gives protection from the agitation of the villagers for the early completion of the project. It is further stated that as per the contract, the project has to be completed before July, 2010.
7.In the counter filed by the Executive Engineer, Public Works Department, WRO, it is stated that only 5% volume of water would be affected by the new alignment and this can be nullified by removing earth from the tank beds. It is further stated that there is no obstruction to the flow of water because of new alignment. It is also stated that as per the revised alignment the road runs only through Kallikudi Tank by 150 Metres and Punganoor Tank only by covering a distance of 1000 Metres and thus the total affected area in both the tanks is only 15 acres. Thus, according to the Executive Engineer, the portion which would be affected is very less and it would not materially affect the storage capacity of the tank.
8.We have heard the learned counsel on either side at length and also perused the records carefully.
9.At the outset, we would like to state that agriculture is the lifeline of the country, since more than 65% of the Indians are involved in the agriculture sector. Historically, irrigation has played a major role in poverty alleviation by providing food, security, protection against famine and expanded opportunities for employment, both on and off the farm. Development of irrigated agriculture has been a major engine for economic growth and poverty reduction.
10.In recent times, we have seen that the growing scarcity and competition for water stands as a major threat to future advancement in poverty alleviation. It is needless to say that food production is likely to be obviously affected, if our irrigation resources are not preserved. One of the major impacts of irrigation is in the employment generated both on and off the farm. Landless labourers and marginal farmers are the great beneficiaries of the employment generated by irrigation in the country. We have also seen that when irrigation fails in an area, landless workers in the said area slowly migrate to the nearby rain-fed villages where there is employment opportunity and it also happens that they move out for a different employment. Protection of irrigation facilities and to ensure the livelihood of agriculturists and marginal farmers is the primary responsibility of the Governments. The right of these poor people to enjoy irrigation facilities is also, in a way, a part of right to life guaranteed under
Article 21 of the Constitution of India. Therefore, while implementing any project, by converting any agricultural land for a different purpose, every endeavour should be taken to minimize the damage caused to the agricultural sector. Of course, it is true that formation of a road under a National Project is also as much important as any other project. But, while doing so, every endeavor should be taken to minimize the disturbance to irrigation resources, like irrigation tanks and lakes, so that the people involved in the agriculture sector may not lose their livelihood. While approaching the issues involved in these two writ petitions, the above considerations should weigh in the mind of the authorities, who are involved in this project.
11.In Hinch Lal Tiwari vs. Kamala Devi and Others [(2001) 6 SCC 496], while considering the scope of Articles 21, 47, 48-A and 51-A of the Constitution of India in relation to the need for improving the natural environment, including forests, lakes, rivers, wild life,, the Hon'ble Supreme Court has held as follows:
"13.It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. they maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under
Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites."
12.A close reading of the above judgment of the Hon'ble Supreme Court would only impel us to say that to have sustained development, since 65% of the population in this country are involved in the agricultural sector, it is the obligation of the State to protect the natural water resources. Any attempt to show any development in other sector at the cost of agriculture sector would be detrimental to the national interest. In our considered opinion, as far as possible, while implementing any project, every endeavour should be taken to ensure that no disturbance is caused to our natural irrigation resources. Keeping in mind the above, let us now approach the issues involved in these writ petitions.
13.The plan showing the alignment, both the original alignment and the proposed realignment, would go to show that the proposed road passes through these two irrigation resources, namely tanks. Indisputably, these two tanks are natural irrigation resources, which benefit more than 2500 acres of lands in a number of villagers as enumerated above. Indisputably, as soon as the original alignment was approved and the same came to light, the agriculturists belonging to Kallikudi area, who are benefited by Kallikkudi tank, raised objections. Respecting their sentiments and considering their grievance, it was proposed to reconsider the alignment. Regarding the original alignment, the agriculturists, who are the beneficiaries of Punganoor tank, did not raise any objection. Even before this Court, the counsel concerned made a statement across the Bar that in respect of the original alignment, showing the road passing through Punganoor Tank, the agriculturists have got no objection. When the realignment was proposed to shift the road across a different area in the very same tank, the agriculturists, who are the beneficiaries of Punganoor Tank, were not taken into confidence. From the counter of the District Collector, it could be seen that when Kallikudi farmers raised objections and indulged in dharna, several meetings were held by the officials, including the Project Director of National Highways Authority of India, to realign the road and it was also assured to them that their irrigation rights and their interest would be protected. Thereafter, when the realignment was formed and the same was accepted by the District Collector, obviously the beneficiaries of Punganoor Tank were not taken into confidence.
14.Though, it is now submitted before this Court that the length of the road across Punganoor Tank has been considerably reduced by the realignment, the agriculturists have got a different story to say. According to them, the original alignment was on the western side of the tank, which may not cause much disturbance to the storage of water and sluices; whereas the proposed realignment passes through the main water logging area which would virtually divide the tank into two and water from western side of the tank would not flow to the sluices which are located on the eastern side. It is further stated that all the ayacut lands are only on the eastern side of the tank. These objections of the farmers were not obviously considered by the District Collector while submitting a report to the National Highways Authority of India. In our considered opinion, when such a serious objection is raised by the ayacutdars, it is the bounden duty of the authorities to consider the same and to realign the road, either by completely avoiding the tanks or by causing minimal disturbance to the tanks.
15.As a matter of fact, the learned counsel appearing for the agriculturists have submitted to this Court that if the road is formed on the bund of the tanks, they will not have any objections. The said submission also appears to be reasonable. However, this Court does not have the expertise. Therefore, it is not possible for this Court to consider all these grievances of the farmers and to issue a positive direction to the authorities to realign the road in a particular way. It is for the experts in the National Highways Authority of India and in the District Administration and the Public Works Department to consider all these objections and to form an alignment which may either totally avoid the tanks or may cause minimum disturbance to the tanks. This exercise has to be necessarily done by the authorities.
16.Curiously, when the realignment has not been so far approved by the National Highways Authority of India, the impugned notification has been issued to acquire lands to form the road as per the proposed realignment. Obviously, the original alignment, which has been approved by the National Highways Authority of India, has not been cancelled. When that be so, we fail to understand as to how the District Revenue Officer could issue notification under the National Highways Act to acquire lands for the purpose of formation of road in accordance with the proposed realignment. The objections raised by the agriculturists were rejected only by the District Revenue Officer. In our considered opinion, the National Highways Authority alone is competent to decide whether this alignment should be proceeded with further or some other alignment, which would cause no harm to the interest of the agriculturists, should be formed. However, the District Revenue Officer is bound to issue notice under the National Highways Act to acquire lands only as per the approved alignment and as requested by the National Highways Authority of India. Therefore, the impugned order rejecting the objections of the farmers by the District Revenue Officer needs to be set aside.
17.Having regard to the above facts and circumstances, in our considered opinion, to alleviate the grievances expressed by the farmers, since the proposal is now pending with the Central Government, it is for the National Highways Authority of India to reconsider the whole issue and to approve an alignment. At this juncture, it should also be noticed that in respect of the original alignment which stands approved, some of the agriculturists have got serious objection and in respect of the new alignment which is proposed, equal objections are there from other section of agriculturists. Therefore, the National Highways Authority of India has to consider all the above and to approve an alignment afresh, which may not affect the irrigation resources. At this juncture, we have to mention that in the additional counter filed by the Project Director, National Highways Authority of India, Karur, he has stated as follows:
"7.I submit that NHAI is ready to consider any alignment whether it is old or new if the District administration gives protection from the agitation of the villagers to early completion of the project."
This approach of the National Highways Authority of India is appreciable. But, to complete the said exercise, necessary assistance should be rendered by the District Administration.
18.Though it is stated in the affidavit filed in support of the writ petition in W.P.(MD)No.9510 of 2009 that the realignment has been made with an ulterior motive, at the instance of the 6th respondent, namely Shri G.Narayanan Trust, which has got a college adjoining to Punganoor lake, and also at the instance of one of the local ministers, we do not want to go into those allegations and the counter allegations, which are made on political lines. In our considered opinion, having regard to the seriousness of the issue and other implications, the National Highways Authority of India would do well in reconsidering the whole issue before approving any alignment, for which we issue the following directions.
(i)The National Highways Authority of India shall form a Committee of Experts who will visit the tanks and the nearby places, in coordination with the District Administration, Public Works Department and in the presence of Ayacutdars, after making proper publication of the visit and explore the possibility of realigning the road so as to either completely avoiding the road passing through the tanks in question or to minimise the disturbance to the tanks. While doing so, the Committee will consider all the objections of the agriculturists, the beneficiaries of Kallikudi Tank as well as Punganoor Tank.
(ii)The District Collector and the Chief Engineer, Public Works Department, are directed to give full assistance and cooperation to the National Highways Authority of India and the Experts Committee to complete the said exercise as directed above.
(iii)The agriculturists, who are the beneficiaries of both the Punganoor and the Kallikudi Tanks, may submit their further written objections, if any, to the National Highways Authority of India as well as to the Committee, which shall be duly considered by the Committee as well as the National Highways Authority of India.
(iv)Having regard to the fact that the project has to be completed before July, 2010, the National Highways Authority of India, the District Collector and the Public Works Department shall expedite the exercise.
(v)Until the said exercise is completed and a new alignment is approved by the National Highways Authority of India, the project, insofar as the same passing through the Tanks in question, shall be kept in abeyance.
(vi)The impugned order of the District Revenue Officer is set aside.
19.In the result, both the writ petitions stand disposed of in the above terms. No order as to costs. Connected miscellaneous petitions are closed.
gb To:
1.The Secretary to the Central Government, Union of India, New Delhi.
2.The National Highways Authority of India, New Delhi.
3.The Superintending Engineer, R.C.Division, P.W.D., Cantonment, Trichy-1.
4.The District Revenue Officer cum Competent Authority, National Highways (Land Acquisition), Collectorate, Tiruchirappalli-1.
5.Chief Engineer, Public Works Department (Water Resources Organisation), Subramaniapuram, Tiruchirapalli-620 020.
6.Project Director, Office of the Project Director, National Highways authority of India (NH-67) 10,Kamadhenu Nagar, Karur-639 001.
7.The District Collector, Tiruchirapalli District, Collectorate, Tiruchirapalli-620 001.