Case BriefsSupreme Court

Supreme Court: In an important case regarding environment Law the 3-judge Bench comprising L. Nageswara Rao, B. R. Gavai and Aniruddha Bose, JJ., revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem. The Court remarked,  

“…in case of doubt, protection of environment would have precedence over the economic interest.” 

Factual Backdrop  

The instant case relates to the recommendation made by the National Board for Wildlife (NBWL) for wildlife clearance for doubling of 26 km stretch of the railway line in Western Ghats from Castlerock in Karnataka to Kulem in Goa passing through Bhagwan Mahaveer Wildlife Sanctuary, subject to fulfilling certain conditions.  

The proposal is for doubling the existing railway line on the land involving 120.875 hectares of land within protected area and 113.857 hectares of land in non-protected area reserved forest 7.018 hectares.  

The recommendation of NBWL was assailed by Goa Foundation before the Central Empowered Committee (CEC) for being in violation of the order passed by the Supreme Court on 05-10-2015. The Goa Foundation contended 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. Further, 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. 

Pertinently, western ghats eco-system which is one of world’s eight hotspots, which spreads 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.  

CEC Recommendation  

The CEC recommended revocation of the permission granted by the Standing Committee for NBWL for doubling the railway line passing through the ecologically sensitive Western Ghats from Tinaighat-Castlerock in Karnataka to Kulem in Goa as such permission was in violation of the guidelines issued by the Ministry of Environment, Forest and Climate Change under the Wildlife Protection Act, 1972 and the order dated 05-10-2015. 

Noticing that the proposed railway doubling line is parallel to the existing railway line which passes through same forest along the same corridor, the 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. Therefore, the CEC recommended that the permission granted by the Standing Committee of the NBWL should be revoked, some of the reasons cited by the CEC were as following: 

  • The report of 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.  
  • 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;  
  • 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;  
  • 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 to the movement of long-ranging animals like tiger and elephant.  
  • 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;  

Analysis and Findings 

Relying on Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647, the Court stated that the ‘Precautionary Principle’ is an essential feature of the principle of ‘Sustainable Development’. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The Court reiterated that in case of doubt, protection of the environment would have precedence over the economic interest. 

Available Alternatives  

Rejecting the Rail Vikas Nigam Ltd.’s (RVNL) contention that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future, the Court, affirming the views taken by CEC stated that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal.  

The Court opined that the CEC was right in its conclusion that the proposal for the doubling of the railway line should be revoked for the following reasons:  

  • At present the Konkan railway line gives excellent connectivity to Northern and Southern parts of India.  
  • Consequent to changes in government policy to discourage import of coal there will be reduction in the coal import which currently forms more than 90 % of goods traffic from Murmagoa Port;  
  • 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; 
  • 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 utilized.   
  • The connectivity between Goa and Karnataka is being strengthened/improved by way of 4 laning of NH-4A along the same route and by the development of new airport. 

“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.”  

Further, 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, however, in its report, the CEC 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. 

Directions to RVNL  

The Court noted that the landscape in which the railway line is proposed connects the three States of Goa, Karnataka, and Maharashtra, however, there was no viability report regarding Goa part. The Court expressed, 

“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.”  

Affirming 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 Court made following directs to RVNL:  

  • Conduct a detailed study on the viability of the project for the Goa part regarding impact of the proposed project on the biodiversity and ecological system of the protected areas under the wildlife sanctuary.  
  • Conduct an 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, 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 before considering the project.  
  • Provide a credible data, supported by an independent and credible source 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 an explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project.  
  • Conduct an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem.  

Conclusion  

For the foregoing reasons, the Court upheld the conclusion of the CEC and revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem.  

However, the Court granted RVNL liberty to carry out a detailed analysis on the impact of the proposed project on the biodiversity and ecology of the protected areas under the wildlife sanctuary and submit a fresh proposal to the Standing Committee of NBWL which shall be considered in accordance with law.  

[T.N. Godavarman Thirumulpad v. Union of India, 2022 SCC OnLine SC 583, decided on 09-05-2022]  


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., remarked that,

“I am conscious that every judicial verdict must be anchored only in law and logic. But a judge must also exhibit awareness of what is going on. His inner antena should catch the signals. To create such an ambience, before dictating this Judgment, I listened to T.M.Krishna’s “poramboke padal”.

 I recalled the words of Nithyanand Jeyaraman that while encroachment of water bodies may be regularised by law by issuing pattas, “Nature” will not take note of the same. I think it was Pt.Deen Dayal Upadhyaya who said that we must treat Nature like a milk-yielding cow. We must milk it and not slaughter it.”

Petitioners sought stoppage of quarrying operations conducted by respondent 5 who had been granted mining lease to quarry rough stone.

It was the petitioner’s contention that the leaseholder had breached the permit conditions as powerful explosives were used.

They stated that blasting operations seriously endanger the lives of the farm-hands who are working in the nearby agricultural fields. There is a considerable generation of dust causing air pollution. The leaseholder has also encroached on a water body. He has blocked the customary pathway of the villagers and even the local Panchayat passed a resolution favouring the closure of the quarry.

District Administration had permitted respondent 5 to quarry Tirupani rock for the purpose of earning revenue.

It takes probably a million years for such rocks to be formed while it takes a few minutes to destroy them.

Whether executive authorities can permit the destruction of such hillocks?

It was stated that it is well settled that the Government, as well as the citizens, have a constitutional obligation to protect the environment and ecology.

As per the doctrine of inter-generational equity adumbrates that environment is not only for the benefit of the present but also the future generations.

In the Supreme Court decision of M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, held that the State as a trustee of all-natural resources is under a duty to protect them. Resources meant for public use cannot be converted into private ownership.

In Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, it was held that it is the responsibility of the State to protect the environment.

In N.D. Jayal v. Union of India, (2004) 9 SCC 362, the Supreme Court observed that the right to the environment has been declared as a fundamental right.

Bench stated that Man has continued his predatory activities without any break and Nature is losing her patience.

Adding to the above remark, Court also stated that the rubicon is about to be crossed and retribution is in the offing. The time for course correction is now or never. 

Bench stated it was time to implant basic structure doctrine by way of analogy into the principle of sustainable development evolved in environmental law.

While the administration can tap the hills and hillocks for mineral resources, exploitation cannot lead to their complete destruction.

It was noted that at the rate at which the exploitation had been going on, the hillock itself would be extinct in a few years.

Why Hills and Hillocks cannot be given away for mining?

High Court stated that we are a democratic republic and the Government cannot arbitrarily give away hills and hillocks for exploitation.

Merely because the process of issuance of mining lease was conducted in consonance with the statutory procedure, that would not confer any immunity against judicial scrutiny. Unless there are supervening public interest considerations, hills and hillocks cannot be given away for mining.

Bench referred to the decision of Supreme Court in Lal Bahadur v. State of U.P., (2018) 15 SCC 407, in this decision, Court quashed the master plan whereby use of area in question for green belt in the master plan was changed.

Right to Environment, Right to Life & Right to Development

Speaking of the right to environment, it means that one has the right to retain the advantages and benefits conferred naturally on the environment. It must be conceded that no right can be enforced absolutely. Need may often arise to balance the said right with the right to development. But then the onus lies on the executive to demonstrate that there is a need to subordinate the right to environment to the right to development.

High Court observed that it is facile to assume that destroying the hillock in question would be of no consequence. Also, the official respondents did not demonstrate as to why the hillock in question should be destroyed to enrich the exchequer of the day by a few million rupees. The case was not of wherein there was lack of minerals or they could not be sourced from somewhere else. Hence, no compelling public interest.

Adding more to the reasoning, Court stated that no doubt, Tamil Nadu Minerals Minor Concession Rules, 1959, applies to all the lands in the State of Tamil Nadu and this includes hills and hillocks too, but as per the limitations to exercise the statutory power conferred by such Rules, one of the limitation states that the authorities will not allow the destruction of hills and hillocks by mechanically issuing mining licenses.

Bench stopped the quarry operations looking at the exploitation that has gone beyond the threshold level, hence writ of mandamus was issued.

Lastly, Court noted the fact that respondent 5 cannot be faulted as she has been restrained from enjoying the fruits of the lease well before the expiry of the same, hence she was permitted to make representation to authorities for a refund of proportionate lease amount for the unexpired period.[K. Santhanam v. District Collector, 2021 SCC OnLine Mad 2092, decided on 26-04-2021]


Advocates before the Court:

For Petitioners:: Mr. V. Malaiyendran

For R-1 to R-4 :: Mrs. M. Rajeswari, Government Advocate.

For R-5: Mr H. Arumuga

Case BriefsForeign Courts

Supreme Court of Singapore: The Bench comprising of CJ Sundaresh Menon and Judith Prakash JA and Tay Yong Kwang, JJ., allowed an appeal filed against the order of the lower court whereby the trial court had convicted the respondent for attempting to import into Singapore a Class C controlled drug and sentenced the respondent for 15 years’ imprisonment.

The main issue that arose before the Court was whether the respondent had rebutted the presumption of knowledge of the nature of the drug under Section 18(2) of the Misuse of Drugs Act.

The Court observed that as per Section 18(2) of the Misuse of Drugs Act, the person who is found in possession of a certain class of drugs is presumed to have knowledge of the nature of drugs in his/her possession and in order to rebut this presumption, the respondent must give an account of what he thought it was. The Court observed that the respondent was in possession of illegal drugs and a mere statement that he did not know about the nature of drugs in his possession or that he had never heard of diamorphine or heroin, does not automatically rebut the presumption under Section 18(2). The respondent claimed that the drugs he was carrying were not diamorphine, however, if he did not know what diamorphine was then a statement about the drugs not being diamorphine is not sufficient. It was incumbent upon the respondent to find out the nature of drugs he was carrying before importing them into the territory of Singapore.

The Court held that the respondent failed to rebut the presumption under Section 18(2) of the Act. For this simple reason, the Court allowed the appeal and convicted the respondent on the original charge of importation of diamorphine under the Misuse of Drugs Act. [Public Prosecutor v. Gobi A/L Avedian, [2018] SGCA 72, order dated 25-10-2018]