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Judgment
Deepak Gupta, J.—This Court took suo-motu notice of a news item which appeared in the Hindustan Times, Chandigarh edition on 4th December, 2009, in which it was mentioned that power transmission lines are being laid on the left bank of Sutlej which will endanger the flora and fauna of the area and lead to the cutting of more than 15000 trees. These power lines are being laid by Jai Prakash Hydro Power Limited and Power Grid Corporation of India. The news item itself was registered as a Public Interest Writ Petition.
Notice was issued on this petition on 9.12.2009. Thereafter, applications were moved by certain residents of the area who prayed that they may be impleaded as parties in the petition. These applications were allowed and they were impleaded as respondents No. 5 to 9 in the petition. They have also placed on record certain material to support the petition.
The grievance of the respondents 5 to 9 is that in case the power corridor from Karcham-Wangtu at Kinnaur in Himachal Pradesh to Abdullapur in State of Haryana is laid on the left bank of the river Sutlej many trees will have to be felled. It has been submitted that whereas the left bank is covered with trees the right bank is barren and has no trees and therefore, it would be in interest of all concerned if the power corridor is laid on the right bank thus preventing immense damage which is likely to be caused to the environment in District Kinnaur. Kinnaur is a tribal area and the petitioners have made reference to the H.P. Transfer of Land (Regulation) Act, 1968, the Panchayats (Extension to the Scheduled Areas) Act, 1996 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and claim certain rights therein. They submit that the permission was obtained by the respondent No.4 for conversion of the forest area to non-forest use by withholding facts and without informing the concerned parties about the fact that the right bank of Sutlej is barren and in case power line is laid to the right bank it will cause minimum damage to the environment.
They also allege that respondent No.10 had obtained the requisite permissions without holding public hearing and the people of the area were not taken into confidence. In case that had been done the said respondents would have pointed out that it would be for the benefit of all concerned if the power corridor is laid on the right side of the Sutlej river. The petitioners have also submitted that after they came to know about the proposal made by respondent No.10 there was wide spread agitation in the area and the Deputy Commissioner himself visited the concerned areas and suggested that the land should be taken on the right side of the Sutlej river.
Our attention has been specifically drawn to the letter dated 3rd January, 2009 sent in this behalf by the Secretary (Forests) to the Government of Himachal Pradesh to the Senior Assistant Inspector General of Forests, which reads as follows:-
In continuation to this department''s letters of even No. dated 5th February, 2008 and 10th December, 2008 on the subject cited above I am directed to say that various written objections have been received to this alignment from Deputy Commissioner Kinnaur and NGOs as well as residents of villages falling in the corridor. The D.C. Kinnaur suggested that the line should be taken on the right bank of the Sutlej River and not on the left bank as the present alignment is causing huge social and environmental problems including more than 20,000 tree. We are asking the Power Department and HP Power Transmission Corporation for their comments.
It is, therefore, requested that the above diversion case may not be processed/finalised till the alignment is finalised.
According to respondents 5 to 9 this letter has not been considered at all either by the Apex Court or by the Central Empowered Committee or by the Ministry of Environment and Forest while granting approval in favour of respondent No.10.
The stand of respondent No.10 is that they have obtained all requisite permissions from the Central Electricity Regulatory Commission, the Govt. of India, the Ministry of Environment and Forest (MoEF), Central Empowered Committee (CEM) appointed by the Apex Court and by the Apex Court itself.
We may make a reference to an order dated 3.10.2008 passed by the Apex Court in T.N. Godavarman v. Union of India. The relevant portion of the order in so far it relates to the present case reads as follows:-
M/s Jaypee Power Grid Ltd., Sholtu within the jurisdiction of Kinnaur, Rampur, Tehog, Rajgarh and Nahan Forest Divisions in Kinnaur, Shimla and Sirmour districts of Himachal Pradesh seeks permission for diversion of 322.6538 ha. of forest land for 400 Kv D.C. Karcham Wangtoo- Abdullapur transmission line in its favour. The CEC has made certain observations after considering the project. The suggestions made by CEC are acceptable to the applicant. MoEF may take a decision after considering the observations made by CEC.
The application as regards the applicant is disposed of accordingly.
It cannot be disputed that whereas the left bank of the river Sutlej is covered with forests, there is very little forest growth on the right bank. However, since permission has been obtained by respondent No.10 from the Apex Court this Court cannot now deal with that aspect of the matter. Whether the permission was obtained without disclosing relevant facts is a question we cannot decide in this proceeding. The aggrieved persons, if so advised, may approach the Apex Court in this regard but we are clearly of the view that we cannot exercise any jurisdiction as far as this issue is concerned.
A perusal of the order of the Apex Court clearly shows that the Apex Court gave "in principle" approval for diversion of forest land in view of the report of the Central Empowered Committee. The MoEF was directed to take a decision after considering the observations made by the CEC. We find that the Ministry of Environment and Forest while granting permission has laid down the following amongst other conditions:-
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5(iv) In case the Transmission Line is to be constructed in hilly areas, where adequate clearance is already available, trees shall not be felled. xxx. xxx. Xxx...
The User Agency shall ensure minimum felling of trees and maximum heights of towers in the forest area.
Any tree felling shall be done only when it is unavoidable under strict supervision of the State Forest Department. xxx.. xxx.. xxx..
No damage to the flora and fauna of the area shall be caused.
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The User agency shall provide retaining walls to avoid huge earth cuttings for fixing the legs of the towers wherever necessary.
These conditions are very salutary and even if the power corridor is to be established on the left bank it is imperative that these conditions are followed in letter and spirit. Minimum trees should be felled and the height of the towers should be raised so that the maximum number of trees can be protected. The conditions provide that the height of the towers in the forest area will be maximum to ensure minimum felling of trees.
Despite our queries none of the parties represented before us has been able to tell us who is the authority to decide what should be the height of the towers in a particular area? Who will oversee the protection of the trees? We cannot expect the User Agency to police and monitor its own action. This must be done by an independent body to ensure that the conditions laid down are followed in letter and spirit.
Therefore, we had also impleaded the Inspector General of Forests, Union of India through Secretary, Ministry of Environment and Forests and Power Grid Corporation of India as respondents in the petition. Vide our order dated 20th March, 2010, we had directed the respondents to answer the following questions:
Who determines the height of the transmission towers?
On what basis is the height of the transmission towers determined?
Is the height of the Transmission towers changed in hilly and forest areas to protect the trees?
What is the height of the towers proposed by the User Agency?
What is the height of the transmission lines?
What is the clearance required between the tops of the trees and the transmission lines?
Can the height of the towers be raised in such a manner that more trees are protected?
Thereafter, it was pointed out to us that the Central Electricity Authority is also a necessary party and the same was also impleaded as party-respondent in this case.
On 16.11.2010, after considering the matter in detail, we had passed the following order:
We have considered the matter in some detail. On a perusal of the various provisions of the Electricity Act we find that the Central Transmission Utility is not only duty bound to transmit electricity but has been clothed with the role of regulator and appraisor of the Projects. In this behalf reference may be made to Sections 12, 14, 15, 17, 19, 28(1) to (10) of the Act.
In the present case, the Central Transmission Utility i.e. the Power Grid Corporation of India is also one of the members of the joint venture. We at this moment are not going into the question as to whether an authority can be Judge in its own cause or not but when a dual role is cast upon any authority, we are prima facie of the view that transparency has to be even greater.
From the material on record especially the communication dated 17th July, 2007 sent by the Under Secretary to the Government of India, Ministry of Power to the Managing Director of the Jaypee Powergrid Ltd. it is apparent that three corridors had been presented as being feasible before the Ministry of Power. In the said letter following observations were made:
It is also advised to ensure that while obtaining forest clearance for Karcham-Wangtoo-Abdullapur 400 kv D/C Line, requirement of forest clearance for all the three corridors, feasibility of which has been verified by Jaypee Powergrid, may be intimated to the authority concerned.
Before embarking upon a more detailed analysis and hearing of the case, we are of the considered view that respondents No. 10 & 14 should file an affidavit before us stating therein which were the three corridors which were identified as being feasible for this Project.
Respondent No.14 shall also on its affidavit specifically deal with the question as to whether it looked into the environment aspects which it was required to in terms of the Transmission Regulations of 2003 which were prevalent at that time.
Respondent No. 12, the Secretary, Ministry of Environment and Forests, is also directed to file an affidavit that while considering the proposal for obtaining forest clearance for Karcham- Wangtoo-Abdullapur transmission line only one proposal for one corridor was submitted or whether some other proposals for transmission of above Project were submitted. Needful be done within four weeks.
Affidavits were filed and we found that the Under Secretary to the Government of India, Ministry of Power, had addressed a letter to the Managing Director of the Jay Pee Power Grid Limited giving the following advice to the Corporation:
It is also advised to ensure that while obtaining forest clearance for Karcham-Wangtoo-Adbullapur 400 kv D/C Line, requirement of forest clearance for all the three corridors, feasibility of which has been verified by Jaypee Powergrid, may be intimated to the authority concerned.
Thereafter, the matter was considered in detail vide order dated 28th April, 2011, where we had made the following observations:
The affidavits which has been filed now reveal that only one proposal for one corridor on the left bank, i.e., corridor on which the transmission line is being built was sent to the Ministry of Environment and Forest. A chart has also been filed wherein the comparative assessment of the three routes were given, one for the proposed route on the left bank of Sutlej river on which construction is being done, the second is the alternative route-I on the left bank itself and the third is the alternative route-II on the right bank.
This Court in its order dated 20.3.2010 has already observed that there is very little forest growth on the right bank of the river Sutlej as it flows down from the heights of the Himalayans towards Bilaspur and beyond. In the comparative chart prepared, the column relating to trees, crops and damage has been answered in very cryptic language, i.e., "to be decided at the time of detailed survey and tower spotting". Thus it is apparent that what was the real damage which was to be caused to the trees was not assessed at that time. The approximate forest area on the right bank of Sutlej river was the lowest.
We also found that in column No.4 relating to construction problem, it is stated that the alternative route-II through the right bank would pass through densely populated area. Normally, Judges do not bring in personal knowledge in cases but this is a Public Interest Litigation and both of us are aware of the fact that as compared to the left bank, the population of the right bank of river Sutlej is much lower.
Surprisingly, when the proposal was forwarded to the Ministry of Environment and Forests, the alternative routes were neither mentioned despite the specific instructions of the Under Secretary to the Government of India, Ministry of Power quoted hereinabove. We are also not oblivious to the fact, which fact is clear from our order dated 16.11.2010, that the Central Transmission Utility, i.e., Power Grid Corporation of India-respondent No.14 before us is virtually a judge in its own cause since it is a part and parcel of respondent No. 10 and has substantial share holding in respondent No. 10.
We, therefore, direct the Managing Directors of respondents No.10 and 14 to file their personal affidavit with regard to the following:-
Why were the alternative routes not mentioned in the proposal submitted to the Ministry of Environment and Forest?
On the next date, the respondent No.14 shall produce the complete records including the noting sheets in this regard.
The Principal Secretary (Revenue) shall also file his affidavit on or before the next date stating the names of the villages alongwith the population on the proposed route, alternative route-I and alternative route-II on the right bank of river Sutlej. The Chief Secretary to the Government of Himachal Pradesh shall also file an affidavit stating what was the information/evidence before the State when it recommended the proposed route and were the alternative routes considered before recommending same.
Consequent to the aforesaid directions, affidavits have been filed. We have gone through the affidavits as well as the record produced before us carefully.
At the outset, we may again repeat that in view of the fact that in principal approval was granted by the Apex Court, this Court cannot go into this aspect of the matter, though, we are of the opinion that all the relevant facts were not correctly placed before the Apex Court. If any party was aggrieved, it should have approached the apex Court for clarification or modification of its orders and it is not for this Court to do so.
Having said so, there are certain important issues which arise before us and which we are bound to consider. The case set up by respondent No. 10 in the affidavit filed by it is that it had engaged the Consultancy Division of the Central Transmission Utility to undertake the route alignment study for construction of the Project and that three routes were recommended by the Central Transmission Utility for detailed survey: one the proposed route and two alternative routes. According to respondent No. 10, all the three alternative routes were mapped and filed alongwith Form-A seeking prior permission of the Ministry of Environment and Forest, u/s 2 of the Forest (Conservation) Act, 1980. The State Government recommended the proposed corridor for grant of permission and, thereafter, its recommendations were placed before the Hon''ble Apex Court through the Central Empowered Committee.
The stand of respondent No. 14, the Managing Director of the Power Grid Corporation, is on similar lines. It is stated in the affidavit as follows:
The respondent No. 14 also considered the construction and operational issues including environmental consideration, like forest involvement and its extent, while selecting the routes of transmission lines and proposed three alternate corridors, two being on the left bank of river Satluj and one being on the right bank of the river Satluj as stated supra. These proposals were submitted to the respondent No. 10 for further necessary action. POWERGRID has subsequently proceeded for detailed survey of the most optimum route (route having line length of 213.85 km on the left bank of Satluj river). It is further to mention that the respondent No. 10, i.e., Jaypee Powergrid Ltd. was to obtain further necessary approval in accordance with the provisions of Forest (Conservation) Act, 1980 and the rules made thereunder.
It is apparent that respondent No. 14, on the one hand, was the Central Transmission Utility. It is also one of the members of the venture/consortium which was to construct the project. It was a beneficiary of the project. The question that is agitating us is whether one can expect the person, who is one of the beneficiaries of the project, to be objective in its own case. Obviously, the project proponent and/or the company and/or the licensee setting up the transmission line will favour the project which is most beneficial to it in economic terms. When the Central Transmission Utility is itself a member of the consortium, we would have expected that the consultant should have been some other body. Even assuming that a different wing of the Central Transmission Utility could be the consultant to the project, we are of the considered view that in such a case, a greater responsibility is cast on the State Government, the Central Electricity Authority and the Ministry of Environment and Forests to ensure that the correct facts are brought to the notice of all concerned, including the Central Empowered Committee in this case. We are constrained to observe that all these authorities and functionaries abdicated their duties and did not perform them in a proper manner.
It is more than apparent that the letter dated 17.07.2007 sent by the Under Secretary to the Government of India, Ministry of Power, to the Managing Director of the Jaypee Powergrid Ltd., wherein it was clearly advised that all three corridors should be presented to the Authority, was not followed in letter and spirit. As far as the State of Himachal Pradesh is concerned, the affidavit of the Principal Secretary (Forests) to the Government of Himachal Pradesh filed in response to our order reads as follows:
That the information with regard to villages and population covered by the Karchham to Wangtoo - Abdulapur 400KV/DC transmission line, alternate Routes-I and II is not available with the department. Efforts were made to collect the information from the concerned districts but they have supplied information only in respect of villages and population on proposed route and on the right bank of Satluj river in Kinnaur.
The Deputy Commissioner, Shimla, Kinnaur and Sirmour have submitted the entire information regarding route of the transmission line through Alternate Routes-I and II is not available with them.
As per the information collected from the J.P. Company and supplied by the D.C. Kinnaur, the detailed survey has only been carried out on the proposed route and the Company does not have the all details of villages and towns on Alternate Route-I and Alternate Route-II apart from the information enclosed as Annexure "B" (P-9). This information is scanty and not in a form that permits making available details of census villages and population. The information with regard to villages/population on the proposed route as well as on the right bank of Satluj in Kinnaur as mentioned above is submitted for kind information of this Hon''ble Court.
We fail to understand how the State supported the route as proposed by respondents No. 10 and 14, when it did not have sufficient information before it. Even before this Court, the State has failed to give any information and has clearly stated that the entire information regarding route of the transmission line through alternate routes-I and II is not available with them. It is, thus, clear that nobody surveyed the alternate routes. No person from the Forest Department of the State cared to look into this aspect of the matter to find out whether there would be less ecological damage on alternative routes-I and II or not. The affidavit quoted hereinabove clearly shows that no information was available with the State.
As noted by us earlier, the right bank of the river Sutlej, especially in Kinnaur and upper areas of Shimla District near Rampur and, in fact, almost up to Slapper, is more sparsely populated than the left bank. The right bank has much less trees and is almost barren. However, for reasons best known to the Forest officials, they chose to just accept the proposal of the project proponent without even examining the feasibility of the other two alternate routes.
Another important question, which arises, is with regard to the role of the Central Electricity Authority. The said Authority is constituted u/s 70 of the Electricity Act, 2003, and its functions are defined in Section 73 of the Act, relevant portion of which reads as follows:
Functions and duties of Authority.
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(a) advise the Central Government on the matters relating to the national electricity policy, formulate short-term and perspective plans for development of the electricity system and co-ordinate the activities of the planning agencies for the optimal utilisation of resources to subserve the interests of the national economy and to provide reliable and affordable electricity for all consumers;
(b) specify the technical standards for construction of electrical plants, electric lines and connectivity to the grid;
(c) specify the safety requirements for construction, operation and maintenance of electrical plants and electric lines;
(d) specify the Grid Standards for operation and maintenance of transmission lines;
(e) specify the conditions for installation of meters for transmission and supply of electricity;
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(o) discharge such other functions as may be provided under this Act.
It is, thus, clear that it is the one of the duties and functions of the Central Electricity Authority to advise the Central Government with regard to the technical standards of electric lines, connectivity to the grid, grid standards and safety requirements for construction, operation and maintenance of such lines etc.
Though, we had issued notice to the Central Electricity Authority, it chose to appear only once before this Court and did not appear again and did not even care to file any response to the petition. When huge projects of this nature are to be constructed, then it is the duty of the Central Electricity Authority to ensure that it monitors such projects and ensures that they comply with the standard specifications, safety requirements etc., as approved by the Central Electricity Authority.
The Central Transmission Utility has been constituted u/s 38 of the Electricity Act, 2003. The Section specifically provides that the Central Transmission Utility should not engage in the business of generation of electricity or trading in electricity. The functions of the Central Transmission Utility have been prescribed in Section 38(2) of the Electricity Act, 2003, and the main function is to undertake transmission of electricity through inter-State transmission system. However, there are other functions also, which the Central Transmission Utility is required to perform.
u/s 12 of the Electricity Act, it is only an authorized person, who can transmit electricity and as pointed out above, the main role of the Central Transmission Utility is to transmit electricity throughout the country. Section 14 of the Act provides that the appropriate Commission constituted by the appropriate Government, may, on an application filed u/s 15, grant a license to any person to transmit electricity. Section 15 of the Act provides the procedure for grant of licenses. For our purpose, sub-sections (3) and (4) are relevant. Under subsection (3) of Section 15 of the Act, the applicant, for grant of transmission license, has to forward a copy of such application to the Central Transmission Utility and under sub-section (4), the concerned Transmission Utility has to send its recommendations to the appropriate Commission. The Commission has to consider all the suggestions or objections and recommendations of the concerned Transmission Utility, which, in the present case, was the Central Transmission Utility. Notices are required to be issued and, thereafter, hearing conducted and orders passed in the application.
The Central Transmission Utility has, therefore, a very important function. Once the Central Transmission Utility is itself the applicant or part of a joint venture, which is seeking license for transmission of electricity, then in our considered opinion, it cannot also take on the role of the consultant and make recommendations. Obviously, recommendations will be in its own favour. In such an eventuality, the concerned State Electricity Commission and the Central Electricity Regulatory Commission, must intervene and be more careful in the matter.
In the present case, we find that as far as the State Government is concerned, its officers, especially the officers belonging to the Forest Department and the officers vested with the duty to ensure that the environment is protected, such as, the Secretary (Environment) did not at all examine the proposal. Files running into hundreds of pages have been placed before us. On going through the files, we find that other than accepting the joint proposal of respondents No. 10 and 14, no official of the State Government has given any noting or has commented as to what is the feasibility, usefulness or otherwise of the other two alternative routes.
The whole idea of giving three alternative routes is that the project proponent has found these three routes which are viable. Now, it is for the authorities to decide which route has the least impact on the environment and the ecology. The authorities must decide which route is better for the people. However, in this case, they did not carry out this exercise but only approved the route which was better for the project proponent. It is for the Government officials including the Forest officials to ensure that they make a comparative analysis of the project and after making such analysis, submit their comments as to how one route is better than the other and is more environment friendly. The role of the Forest Department is to recommend that route which causes the least damage to the forest and the environment. This has not been done in the present case.
We hope, expect and direct that in future, all functionaries of the State of Himachal Pradesh shall ensure that in all projects of this nature, a proper and comparative analysis is done. The recommendations of the project proponent are not to be accepted just for the asking. The officials of the State of Himachal Pradesh have to do some spade work on the ground and then analyze all the proposals and make their independent recommendations in all cases. Their recommendations should be based on the interest of the State, in the interest of protecting the environment and in the interest of the local people, so that minimum land is acquired and the agricultural lands of the local people are damaged to the minimum possible extent. The Chief Secretary to the Government of Himachal Pradesh is held responsible to ensure that such directions are complied with in letter and spirit and there is no violation of the same in future.
We also find that there is virtually no application of mind by the various authorities, such as the Central Electricity Authority as to how the height of the transmission towers is to be determined. It has been pointed out to us that in case the height of the towers is increased, then a wider base is required. In case, the base can be provided in an area which is barren or where not many trees are required to be cut, then if lopping, chopping of the tops of the trees and felling of trees can be prevented or in any manner decreased, then these aspects must be looked into so as to protect more trees. While determining the places where the towers are to be set up, the Central Electricity Authority and Central Transmission Utility must take into consideration every factor, such as availability of road, etc. Great havoc has been caused to the left bank of the river Sutlej and the lives and properties of private persons and the Government have been put at great risk. In future, the Central Electricity Authority and Central Transmission Utility will ensure that each aspect is examined in the light of our observations made hereinabove and sanction is not granted at the mere behest of the project proponent. It is the duty of the Central Electricity Authority and the Central Transmission Utility to ensure that all factors are taken into consideration.
Even the Ministry of Environment and Forests must, in future, ensure that steps are taken by the project proponent to cause minimum damage to the environment. It should also look into the questions as to whether the Regulatory and other authorities have done their work or not. If it finds that there has been no examination of the proposals, especially alternative proposals, like in the present case, then it should remit the matter to the concerned authority/agency to send its recommendations after carrying out a complete analysis of the various proposals put forth by the project proponent.
The writ petition is disposed of with the aforesaid directions. The Registrar General of this Court is directed to send a copy of this judgment to the Secretary, Ministry of Environment and Forest, Government of India, the Central Electricity Authority, Central Electricity Regulatory Commission, H.P. State Regulatory Commission, the Chief Secretary to the Government of Himachal Pradesh, the Inspector General of Forests and the Secretary, H.P. State Pollution Control Board, who shall ensure that in future, action is taken strictly in accordance with what we have stated in this judgment.