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2014 DIGILAW 161 (CAL)

Basabi Rai Chowdhury v. Metro Railways, Calcutta

2014-02-26

ARUN MISHRA, JOYMALYA BAGCHI

body2014
JUDGMENT : Three writ petitions have been filed by the petitioners by way of public Interest Litigation. 2. In W.P 33381(W) of 2013 prayer has been made to quash the order dated 17th July, 2013 passed by High Power Committee with respect to alignment of Metro Railways. 3. The petitioner has questioned the decision of the High Power Committee on various grounds. 4. It was submitted by the learned counsel for the petitioner Mr. Subrata Mukhopadhyay that quality of water existing at present has not been ascertained and ho undertaking has been submitted as mentioned in the impugned order for restoration of water body within a period of six months. It has also been submitted by him that detailed restoration plan has not been submitted and there is no reason given to depart from the earlier order which was passed on 26th February, 2013. It was also submitted by him that the High Power Committee was not constituted by the expert persons, this Court should appoint Commissioner so as to adjudge the correctness of the decision taken by the High Power Committee. 5. Mr. Bhaskar Prasad Vaisy, learned counsel, appearing on behalf of the intervenor has supported the submissions raised by Sri Mukhopadhyay in the aforesaid writ application. 6. Similar prayer to alter the alignment of railway lines has been made in W.P. No.5259 (W) of 2014. Mr. Mitra, learned Senior Counsel ventilated the same objection as canvassed by the petitioners in W.P. 33381 (W) of 2013. 7. Another writ petition being W.P 33551 (W) of 2013 (Sri Debnarayan Roy v. State of West Bengal & Ors.) has also been preferred in which prayer has been made not to fill up the pond situated at R.S Dag No.901. 8. It is submitted by the learned counsel in W.P. 33551(W) of 2013 that Director of Fisheries has given the permission, who is not the competent authority, to grant such permission and the State Government is the competent authority to grant permission for filling up the pond in question. Such permission is illegal and void arid there can be no restoration of the water body as some pillars have been constructed as well as tank has also been tilled up. Now it will not be possible to restore it. 9. Such permission is illegal and void arid there can be no restoration of the water body as some pillars have been constructed as well as tank has also been tilled up. Now it will not be possible to restore it. 9. It is submitted that in the affidavit filed by Amit Kumar Roy on behalf of Railway Vikash Nigam Limited (in short R.V.N.L) that due compliance of the impugned order has already been made on its behalf. Learned counsel attracted our attention to a communication being R-6 dated 27th July, 2013 in which compliance of the conditions mentioned in impugned order dated 17.07.2013 has been mentioned. It is pointed out that undertaking has been furnished by undersigned for restoration of water body and report of quality of water as of present is enclosed and a detailed schedule for construction of Metro Line above water bodies near Patuli and restoration of water bodies has been prepared keeping in view the various local constraints and weather conditions during the year, a copy of the time schedule has also been submitted. It is also pointed out in the communication a revised plan of water bodies and alternative route maps alongwith ELA/Survey report by RITES is being sent alongwith. Learned counsel has also attracted our attention to the detailed project report submitted by R.V.N.L as well as by RITES, Government of India Undertaking. He has also attracted our attention to permission granted by the State Government, Department of Fisheries of the State Government annexure R-2 to the affidavit informing that no objection certificate is hereby accorded for construction of Viaduct on the proposed alignment across Patuli water body under section 17A(9)(B)of the West Bengal Inland Fisheries Act, 1984 subject to the observance of condition laid down in the order of High Power Committee which allows compensation to be paid to the fish farmers of the water body being affected due to construction work. Learned Counsel submits that this no objection granted by the Government has been communicated by the Director of Fisheries which document has been annexed in W.P No. 33551 (W) of 2013. Thus, the submission raised in aforesaid writ application that the Government has not granted any permission is also incorrect, besides that Director of Fisheries also is competent to grant the permission. 10. Thus, the submission raised in aforesaid writ application that the Government has not granted any permission is also incorrect, besides that Director of Fisheries also is competent to grant the permission. 10. Learned Counsel for respondents has also submitted that the order dated 13th July, 2013 has been passed after opportunity of hearing has been granted and the earlier modified order which was passed in May, 2013 was set aside by this Court as such order was passed without hearing. Thus, the submission raised that no hearing was given is absolutely wrong. 11. Initially order dated 26.2.2013 was passed by the High Power Committee to the following effect:- "Considering the submissions submitted by both the parties and examining the report submitted by RVNL, the Committee reviewed the case and the report submitted and unanimously agreed that the cost of protecting the environment is paramount. In a highly populous city, conservation of common property resources is imperative, irrespective of cost benefit analysis. Under no circumstances filling up of water body can be considered for the interest of the environment and the common people. Metro Rail Authority has to choose another alignment and the Committee is indifferent to these technical issues. The Committee understood the cost escalation issues of Metro Rail Authority but no amount of cost is as important as the conservation of public good like water bodies. Therefore the Metro Rail Authority is directed to choose any alternative route without disturbing the existing waterbodies and the ecological balance of the Baishnabghata Patuli Township area." 12. The aforesaid order was modified on 3.5.2013 by High Power Committee without hearing. It was ordered to grant opportunity of hearing to petitioner in W.P No. 19558 (W) of 2013, vide order dated 11.7.2013 thereafter impugned order was passed on 17.7.2013 to the following effect:- "After having the Reasoned Order No.EN/535/3C-08/2011 dated 26.02.2013 passed by the High Power Committee Mr. H. S. Yadav, Chic Project Manager (Science City), Kolkata Project Implementation Unit of Rail Vikas Nigam Ltd f RVNL) submitted a fresh proposal Vide No.RVNL/KOL/Metro/Court Case/W.P No.8567 (W)/1678 dated 3.4.2013 as under:- (a) For Construction of viaduct across waterbodies no permanent filling will be required. However, during construct ion of superstructure which is likely to last for 6 to 8 months the pond will be filled up only partially and that too temporarily which will also be restored back after completion of Metro work. However, during construct ion of superstructure which is likely to last for 6 to 8 months the pond will be filled up only partially and that too temporarily which will also be restored back after completion of Metro work. Finally, water-body and its fauna will be restored leaving only the pier shaft which hardly occupies any volume that too would get compensated by additional dredging: and (b) The additional track required for expansion of existing depot shall be contained within the dry land available with Metro Railway. No Waterbody will be filled up for construction of depot. Considering the aforesaid proposal as an alternative route of Metro Alignment in Baisnabghata Patuli area, the Committee reviewed the whole matter in the light of public interest involved and loss of waterbodies in consequence with construction work of Metro Railways. It was observed that the RVNL Authority has committed to use a very small portion of the water-bodies in Baisnabghata Patuli area for construction of viaduct across the water-bodies without filling up the same permanently and after completion of Metro work, the water-area required to be filled up temporarily for construction of superstructure will be restored back with in 6 months and no water-body will be required to be filled up for construction of Metro Railway Depot. It was concluded that in a highly populous city construction of Metro Rail for public interest and conservation of water-body for maintaining ecofriendly atmosphere are equally important. In view of this position the Committee then agreed to modify its earlier order passed on 26.2.2013. Accordingly, The High Power Committee passed an Order No.KN/1176/ 3C-08/2011 dated 03.05.2013 whereby the Metro Railway Authority was directed to work as per alignment proposed vide their Reviewed proposal No.RVNL/KOL/Metro/Court Case/W.P. No.8567(W)/1678 dated 3.4.13 subject to the following conditions:- (i) Before execution of the work, necessary permission/NOC will have to be obtained from the Fisheries Department, Government of West Bengal, 31, G. N. Block, Salt Lake, Sector-V, Kolkata. (ii) RVNL Authority will construct viaduct across the waterbodies only, no permanent filling will be allowed. (iii) The area of the water-bodies which will be filled up temporarily for construction of superstructure relating to viaduct will be restored back within 6 months after completion of work and finally water-body and its fauna will be restored leaving only the pier shaft which would occupy such little volume that would get compensated by addition dredging. (iii) The area of the water-bodies which will be filled up temporarily for construction of superstructure relating to viaduct will be restored back within 6 months after completion of work and finally water-body and its fauna will be restored leaving only the pier shaft which would occupy such little volume that would get compensated by addition dredging. (iv) Fisheries Deptt. is entrusted to take legal steps if RVNL violates the terms and conditions as stated above and if RVNL fails to keep the commitment in their said revised proposal. Against the order No. EN/1176/3C-08/2011 dated 03.05.2013 Smt. Basabi Raichoudhury moved an application before the Honble High Court bearing W.P. No.19558 (W) of 2013- Basabi Raichoudhury v. The Metro Railways Kolkata & Ors.. After hearing both the parties the Honble High Court was pleased to pass an order 11th July, 2013 with the direction to High Power Committee to give a hearing to the petitioner on 15th July, 2013 and to pass a fresh order by July 20, 2013. In terms of the order the Honble High Court, a meeting of the High Power Committee was held on 15.07.13 where Siddhartha Mazumdar, Siddhartha Dey, D.S. Gupta and G. Bhattacharjee on behalf of Srimati Basabi Raichoudhury and U.S. Yadav, R. K. Tiwari, S. K. Singh and S.A. Sekh on behalf of the Metro Railways Authority/RVNL appeared before the High Power Committee. The petitioners representatives wanted to know from the representatives of the Metro Railways the difference; between original proposal and the reviewed proposal vide their letter No.RVNL/KOL/Metro/Court Case/W.P. No.8567 (W)/ 1678 dated 3.4.13. They also wanted to know the details about the restoration plan of waterbody. They emphasised that restoration should not only mean volume of water but also quality, of water along its flora and fauna. In their written submission to The High Power Committee, they requested to be provided with the details of alternative routes alongwith the survey report and the earlier plan as well as revised plan of Metro railways in the portion concerning the water body. They also submitted that any construction in any form on the water bodies will destroy the same and the ecological balance. In support of their claim, a letter from Dr. A.K.Ghosh, Director and Centre for Environment & Development was submitted. They also submitted that any construction in any form on the water bodies will destroy the same and the ecological balance. In support of their claim, a letter from Dr. A.K.Ghosh, Director and Centre for Environment & Development was submitted. The representatives from RVNL/Metro Railways clarified their earlier and revised plan and explained to representatives of the petitioner with the help of maps. They also elaborated on the procedure of reclamation and subsequent restoration of water body. It was mentioned by them that for reclamation only earth and no concrete material will be used. They also emphasised the environment friendliness of Metro railways. It was recalled that Rail Vikas Nigam Limited had previously submitted a report entitled "Environmental and social impact assessment of alternative routes between Kavi Subhas and Satyajit Ray section of Kavi Subhas-NSCB Airport metro corridor, Kolkata" to the Chairman, High Power Committee alongside their letter No. RVNIVKOI /Metro/Court Case/W. P No. 8567 (W)/ 1445 dated 09.1.13 where in addition o the original alignment, four alternatives were studied by them of which two were above ground and two were underground. According to that report two of the alternatives are technically infeasible and for the other two the issue of resettlement is severe. It has been mentioned that for the technically feasible, aboveground alternative 125 structures, including 24 residential building of which six are high rise buildings and one school building, as well as 185 families comprising 835 persons arc likely to be affected. And for the technically feasible underground alternative 29 structures, including 15 residential buildings, and 86 families consisting of 348 persons are likely to be affected. Besides the two technically feasible alternatives will require felling of 230 trees and 81 trees respectively. After hearing both the parties, the committee comes to a decision that ecology of the area and water body are required to be protected. However, at the same time the project cannot be said to be against the public interest at all since Metro Railways is an environment-friendly means of mass transport particularly in traffic congested, highly populated city like Kolkata. However, at the same time the project cannot be said to be against the public interest at all since Metro Railways is an environment-friendly means of mass transport particularly in traffic congested, highly populated city like Kolkata. Hence, while confirming its order issued vide No.EN/1176/3C- 08/2011 dated 03.05.2013 the Committee likes to add the following directions in light of concerns raised by the representatives of the petitioner as well as the submission made by them:- (1) RVNL Authority is to submit an undertaking to the High Power Committee that they will restore the water body and the quality of water as of present within 6 months of reclamation. A copy of the undertaking is to be forwarded to the petitioner. (2) RVNL Authority is to submit to the High Power Committee detailed restoration plan of the water body after reclamation and completion of construction work. A copy of the restoration plan is to be forwarded to the petitioner. (3) RVNL Authority is to submit their earlier plan as well as revised plan in the portion concerning the water body, alternative route maps and EIA report/survey report on those alternative routes to the petitioner within the next 5 (five) days. (4). Director of Institute of Environmental Studies and Wetland Management is to arrange to test the quality of water at the particular water body at present and to convey the report to the High Power Committee, RVNL Authority and the petitioner within the next 15( fifteen) days." 13. In the light of aforesaid impugned order we proceed to consider various submissions. 14. It was submitted that High Power Committee was not constituted of the experts. However, we find that Member Secretary of the West Bengal Pollution Control Board who is expert i n this aspect was the Chairman of the High Power Committee. We also find that decision has been taken on the project report submitted by R.V.N.L and RITES Government of India Undertaking who are expert bodies and it appears that High Power Committee was also constituted of experts. Thus, we find the submission to be baseless one. 15. We also find that decision has been taken on the project report submitted by R.V.N.L and RITES Government of India Undertaking who are expert bodies and it appears that High Power Committee was also constituted of experts. Thus, we find the submission to be baseless one. 15. On being instructed it has been submitted that steps have been taken as per conditions mentioned in the impugned order, the Director of Institute of Environmental Studies and Wetland Management had to arrange to test the quality of water at the particular water body at present such report had been submitted to the High Power Committee, the R.V.N.L authority and will also be furnished to the petitioner within the next fifteen days and after construction is made again report will be submitted to counter check the quality of water is maintained at the same level. 16. The submission raised by Mr. Mukhopadhyay that undertaking as mentioned in impugned order has not been submitted that they will restore the waterbody in present condition within six months of reclamation, appear to be countered by the document being Annexure R- 6 filed by Amit Kumar Roy in which it has been mentioned that undertaking for restoration of water body and to maintain quality of water as of present has been submitted vide letter dated 25th July, 2013. Thus, we have no hesitation in rejecting the aforesaid submission on facts raised by Mr. Mukhopadhyay. 17. It was also submitted that detailed restoration plan of the water body has not been submitted as that has to be done after reclamation and completion of construction work. 18. It is apparent from Annexure It dated 27th July, 2013 a detailed schedule for construction of Metro Line and restoration schedule of water bodies near Patuli has been prepared keeping in view the various local constraints and weather conditions during the year. Thus, we reject the aforesaid submission. 19. The submission raised by Mr. Mukhopadhyay that we should appoint a Commissioner with respect to ascertaining the alignment which would be proper for metro rail, we art; of the opinion that Court cannot act as expert nor the Commissioner need be appointed as expert body in this matter has already decided. The question of feasibility of alternative routes the best possible alignment has been chosen. Mukhopadhyay that we should appoint a Commissioner with respect to ascertaining the alignment which would be proper for metro rail, we art; of the opinion that Court cannot act as expert nor the Commissioner need be appointed as expert body in this matter has already decided. The question of feasibility of alternative routes the best possible alignment has been chosen. Cogent reasons have been given to chose the alignment in question, only small part of pond has to be used as mentioned in the order. Such decision had been taken by the committee on the basis of Project Report submitted by the R.V.N. I. as well as by RITES, Government of India Undertaking. Thus, from the decision taken by the High Power Committee, we find that experts have suggested that alternative routes are not feasible and would equally non-appropriate considering the resettlement. By the proposed alignments least environmental and social impacts would be caused as per sensitive analysis it also has lowest environmental, social cost and ultimately direction for restoration of water body has also been ordered in this particular case. Thus, we are unable to accept the submission raised by Mr. Mukhopadhyay that the authorities acted arbitrarily in reviewing its earlier order. Cogent reasons have been given to reach to the conclusion. However, at the same time we direct that water body as assured in Annexure R-6 has to be restored within six months from the date of completion of work. 20. In T. N. Godavarman Thirumulpad v. Union of India & Ors., (2008) 2 SCC 222 , the Apex Court has held that Court has to strike a balance between development needs with protection of environmental ecology tested on anvil of aforesaid principle. We find the project qualifies the test of sustainable development and balance of inter generational equity also tilts in its favour. 21. Coming to the submission that opportunity of hearing had not been granted, we passed an order dated 11th July, 2013 for granting an opportunity of hearing and pursuant thereto impugned order has been passed on 17th July, 2013 after hearing the petitioner in W.P No.33381/2013. Thus, the submission raised is incorrect that hearing opportunity has not been granted. 22. 21. Coming to the submission that opportunity of hearing had not been granted, we passed an order dated 11th July, 2013 for granting an opportunity of hearing and pursuant thereto impugned order has been passed on 17th July, 2013 after hearing the petitioner in W.P No.33381/2013. Thus, the submission raised is incorrect that hearing opportunity has not been granted. 22. Coming to the submission raised in W.P 33551 (W) of 2013 that Director of Fisheries is not the competent authority to grant permission, we find that Government has granted permission which has been annexed in the reply of the respondent authorities to this writ petition. No objection certificate has been granted by the State Government. It appears from the document that such permission was granted by the State Government which had been communicated by the Director of Fisheries. It is clear that Government of West Bengal, Fishery Department, has issued a No Objection Certificate for filling up of pond in part/full at Dag No.901 for construction of extension of Metro Railway as matter is in larger public interest which cannot be thwarted. Thus, the submission is incorrect. Substantial construction has also been made on a pond situated at R.S Dag No.901. Thus, we do not find any ground so as to make any interference in the writ petition in W.P 33551 (W) of 2013 same is dismissed. 23. We dispose of the writ petitions being W.P 33381 (W) of 2013 and W.P 5259 (W) of 2014 directing that the condition mentioned in the order dated 17th July, 2013 shall be scrupulously observed by the respondents and the compliance report shall be filed before us, including the report of the quality of water and other relevant documents shall also be placed before us and with respect to the restoration plan etc. and its schedule, a report shall also be submitted that water body has been restored after completion of the project. No order as to costs.