AI Structured Summary
Not yet generated for this judgment
Judgment
The Applicant has invoked section 14 and 15 of the NGT Act, 2010 (for short Act 2010) Seeking following relief:-
1) Direct that the felling of trees and other non-forest activities being undertaken in forest areas be immediately discontinued.
2) Direct that the illegal construction on the project site be stopped with immediate effect.
3) Direct the Respondents herein to restore the area where there has been construction work in accordance with Section 15 of the National Green Tribunal Act, 2010.
4) Impose huge costs as environmental compensation charge for the damages done to the land in question.
5) Punish the erring officials in accordance with law including the Environment Protection Act, 1986, Forest Conservation Act, 1980 and the National Green Tribunal Act, 2010.
6) Pass any order that this Tribunal may deem fit in the facts and circumstances of the case.
The applicant has also sought grant of interim order to injuct the project activity of the State of Telangana through its Ministry before the Respondent No. 4. After issuing prior notice, we had taken this case to consider regarding the interim relief sought in view of the urgency expressed by both sides.
Having heard both the sides and as urgency was expressed by both sides for the reasons to be assigned later we had pronounced the (operative portion) of the decision on the interim relief to the following effect:-
5th October, 2017 Operative Portion of Interim Order
For the detailed reasons to follow:
By an Ad interim of injunction the respondent nos. 3 and 4 are restrained from carrying out any construction activities for the Kaleshwaram Lift Irrigation Scheme or any other activity like felling of trees, blasting and tunnelling in the forest areas in violation of Forest Conservation Act, until the mandatory statutory clearances including Environment and Forest clearances are granted.
However, we grant liberty to the respondents to seek modification or clarification of this order, upon grant of such clearance.
Soon thereafter, the reasons for reaching such a decision have been assigned and after transcription, correction it is released now. Reasons
The Applicant has brought into party array the Union of India-Ministry of Environment and Forest & CC (MoEF) as Respondent No. 1, State of Telengana as Respondent No. 2, State of Maharasthra as Respondent No. 3, Irrigation and CAD Department, Telangana as Respondent No. 4, Water Resources Department, Maharasthra as Respondent No. 5, Department of Forest, Telangana, as Respondent No. 6, Department of Forest, Maharashtra as Respondent no. 7, Central Water Commission as Respondent No. 8, Central Ground Water Board as Respondent No. 9, State Pollution Control Board, Telangana as Respondent No. 10 and State Pollution Control Board, Maharashtra as Respondent No. 11.
In response to the notice the Respondents have entered appearance and detailed counters have been filed by the State of Telengana, State of Maharashtra, Irrigation & CAD Department, Water Resource Department, Maharashtra, Central Ground Water Board, State Pollution Control Board, Telangana. Others have not filed their replies.
The applicant has also filed rejoinder to the reply so filed by the State of Telangana.
From the narration of facts it is evident that the Respondent No. 2 the State of Telangana through Respondent No. 4, Irrigation and CAD Department, Telangan have undertaken the project in question Respondent No. 4 is the Project Proponent.
Before we advert to the contentions and issues raised by all the parties we brief reference to factual matrix is necessary which is as hereunder.
The applicant has questioned the commencement of the Construction Activity by the State Government of Telangana in Karimanagar, Rangareddy, Medak, Nizamabad, Adilabad, Warangal, Nalgoda and Khammam District of Telangana. The project is described as Kaleshwaram Lift Irrigation Scheme (KLIS). It is alleged by the applicant that the State Government is undertaking the construction activity of the project KLIS illegally in blatant violation of the environmental laws and rules thereunder.
In paragraph 5 of the application the applicant has avered that the KLIS project envisages to irrigate 7,38,851 ha in the upland areas of Adilabad, Karimnagr, Niazamabad Warangal, Medak, Nalgonda and Rangareddy district of Telengana with proposal to divert 180 TMC of water from River Godavari at the cost of 80499.71 crores for drinking water. The project envisaged by Respondent No. 2 and is implemented by Respondent No. 3 & 4 and it is claimed by the State it is a prestigious mega project of irrigation to cater the needs for development of the agricultural activity in the State. The State has conceived this project as lift irrigation scheme project for agricultural growth in the region of the with source point for the project is near Medigadda Village below the point of confluence of Pranahitha and Godavari River about 20 KM from the Kaleshwaram. The proposed Kaleshwaram project is designed and envisages construction of three barrages between Yellampally & Medigadda. The details of three barrages are hereunder:-
1) Medigadda Barrage on Godavari Near Medigadda ( Kaleshwaram),
2) Annaram Barrage on Godavari Downstream of Confluence of Manair River with Godavari river near Annaram
3) Sundilla Barrage on Godavari Downstream of Yellampally barrage near Sundilla.
The Applicant alleges that the Project Proponent proposes to lift water from River Godavari for irrigation purposes which is equal to 134.5 TMC.
The project also envisages stabilization of existing command area of 34.5 TMC for drinking water to Hyderabad, drinking water to en route villages & for industrial uses. The expected quantity for such utilization is 30 TMC, 10 TMC and 16 TMC respectively.
It is assertively contended by the applicant the main aim of the instant project is irrigation of 7 districts of Telengana to support agriculture and same has been displayed on the website of Respondent No. 4. The applicant further asserts to contend the project undoubtedly is a irrigation project in the upland district of Telangana. The whole of project is planned with 7 links with water conveyer System consisting of gravity canals, online storages and tunnels involving significant extent of forest land estimated to be about 2866 Ha. as per the own discloser statement in the pre-feasibility report submitted by the Respondent No. 2 & 4 to MoEF while applying for Environmental Clearance.
The applicant has further relied on the tender floated for the instant project to show the infrastructure being constructed is for major use of irrigation project and incidentally very limited extent of water is proposed to be utilized for supplying for drinking water to the en route villages to Hyderabad and also the Hyderabad city.
The more important assertion in the application is that the so called ambitious lift irrigation project of State of Telangana evolves several villages and large number of forest land which will be submerged. Some of the villages in the state of Maharashtra will also be severely affected and significant lands in State are also liable to be submerged. The applicant has relied on the pre-feasibility report and other documents filed by the State of Telangana with the MoEF and report submitted to Expert Appraisal Committee (EAC) with the details of the instant project it is marked as Annexure A-1. The print out from the website of I and CAD department of Telangana is produced at Annexure A-2. the Schematic background of Medigadda barrage is shown lies in Wadadam Village and its adjoining forests in the State of Maharashtra is at annexure A-3.
The pleadings in the application are aplenty and very elaborate giving every details of the project, the present project activity and likely adverse effect on the Environment and also number of villages which are likely to be submerged and the extent of forest land that will be used by the project and number of trees that are likely to be destroyed. However, for the purpose of disposal of interim relief application we do not wish to refer to all the details but it suffices to refer to the main thrust of the arguments and the substance of the applicant's case that the Kaleshwaram Project undertaken by Respondent No. 2 State of Telangana is without legal sanction as it has failed to obtain required sanction and permission. In this regard it is alleged that the Respondent No. 2, 3 and 4 have commenced construction activity of the project in question without obtaining the Environmental Clearance which is gross violation and contravention of the EIA notification 2006 and mandate of Section 2 of the Forest Conservation Act as also without obtaining the required NoC from Central Ground Water Board or the clearance from the Pollution Control Board. He has referred to the averments in the application submitted by the Respondent No. 4 for grant of environmental clearance which is said to be still pending.
It is alleged that the Project proponent had submitted application for diversion of 3.9694 ha out of the totally required 3719.159 ha of Forest Land and without waiting for such clearance has undertaken construction activity.
On the basis of above facts it is alleged that the project proponent have commenced the construction activity for irrigation project illegally. Relying on the provision of Section 2 of EIA 2006 it is urged that the project in question falls within Entry 1(c) of the EIA Notification 2006, which mandates prior Environmental clearance shall be obtained for river valley project and also irrigation.
Reliance is placed on EIA Notification, 2006 Entry 1(c) which was subsequently amended to include "irrigation" within the scope of Entry 1(c) of notification vide Notification No.S.O 1599(E) dated 25.06.2014. He has relied on the application submitted by the Project Proponent for Environmental Clearance on 11.01.2017 to the Respondent No. 1. He has relied on the EAC Minutes of Meeting held on 30th -31st Jaunary, 2017 on which date Term of Reference for the project was deferred. He further refers to proceeding of EAC on 2nd and 3rd March, 2017 when the EAC recommended the project for Term of Reference.
Supplementing his contention the applicant has further stated as follows:-
"That the region where the instant project has been proposed is highly ecologically sensitive. It is pertinent to note that the project proponents herein have commenced construction of the Medigadda Barrage, Sundilla Barrage, Kannepally Pump House, Goliwada Pump House, Tukkapur Pump House, etc. of the KLIS without the requisite clearances and permissions. According to the details of the project given on the website of the Respondent No. 4 annexed as Annexure A/2 in this application, it clearly states that Rs. 12697.31 crores have already been spent on the project, indicating that construction has already been taken up on a large scale. In fact, the project proponent has, in the justification for Forest Clearance submitted to the MoEF&CC (annexed as Annexure A/15) stated that"... the designs of the above components are finalized and the construction of earthen bunds which are not falling in the forest area is commenced", showing that not only has the project proponent illegally commenced construction work but is also creating a fait accompli situation for grant of forest clearance. The said construction is being undertaken in the forest as well as non-forest areas of the project without the necessary statutory clearances. Large machinery such as JCBs and earthmovers are being deployed and blasting activities have commenced, which are causing severe, irreversible damage to the area. The Applicant has also videographed the said illegal construction which is being carried out at a massive scale across the project and the same is appended in a video CD as annexure A/8. This construction of the project is blatantly illegal as it has commenced prior to the grant of environmental clearance. The EIA Notification, 2006 envisages that prior environmental clearance must be obtained for an irrigation project. Any construction activity undertaken prior to obtaining environmental clearance vitiates the purpose of the Notification and the letter and spirit of the Environment Protection Act 1986 is wholly lost. The fact that the project proponent has applied for environmental clearance and commenced construction activities without prior clearance goes to show that they have willfully violated the law with the sole intention of creating a fait accompli situation, without realizing that the damage they are causing is permanence and irreparable. Images of the ongoing construction at the various locations along with the screenshot of the videos attached at Annexure A/8 are annexed herewith as Annexure A/9.
Respondent no. 2 and 4 would contend that Kalseshwaram project is an irrigation project conceived by the erstwhile State of Andhra Pradesh before the State of Telangana was created in the year 2013. The details of the project is disclosed by the respondent no. 2 and 4 which are material are as hereunder:
a.) that the Kaleshwaram lift irrigation project is an important mega project of State of Telangana primarily for water management. The project envisages lifting of 180 tmc of water from.
In fact, the Kaleshwaram project is a backbone water supply project, based on which many other drinking water schemes and/or projects are being conceptualized and/or pursued by Respondent no. 2. For instance, and without limitation:
a. A significant part of the 180 TMC of the water which would be drawn by the Kaleshwaram project, is aimed at providing drinking water to be supplied to Hyderabad and villages/town/cities en route to Hyderabad.
b. 'Mission Bhagiratha' is plan being implemented by the Respondent no. 2, involving a cost of more than Rs. 43,790 Crores, which will last mile connectivity and provision of drinking water, and is dependent on the source of water being made available by the Kaleshwaram project. Respondent no. 2's commitment is to provide safe, adequate, sustainable and treated drinking water for the rural and urban areas of the State of Telangana through the Respondent no. 4. The entire project is divided into 26 segments based on the topography, proximity and ease of connectivity from various individual sources of Krishna and Godavari Basin covered with independent network systems. The source of water for Mission Bhagiratha is the Kaleshwaram project- 17 segments of Mission Bhagiratha are proposed to be supplied water by the Kaleshwaram project which is a significant portion of the water transported and stored by the Kaleshwaram project. In addition, the Mission will also supply water from river Godavari to Hydearabad Metro Water Supply and Sewerage Board for citites of Hyderabad, Secunderabad and other peripheral urban area.
c. Therefore, irrigation is only one of the planned components the Kaleshwaram project (work of the irrigation-specific infrastructure has neither started nor is proposed to be started in the near (future), and it is rather simplistic and incorrect for the Applicant to create a perception that the Kaleshwaram project is an irrigation project'.
The erstwhile Telangana region (now the Telangana State) has been and remains one of the worst drought-prone and distressed areas in India. There is tremendous shortage of usable water here as these are fluoride affected areas with scarce rainfall. A study conducted by researchers in June 2016 concluded that the fluoride level in the water found in Telangana was more than twice the permissible limit for drinking water. As a result, a large part of the population of these districts is being forced to migrate to other parts of the country. The perennial drought conditions are also causing social problems in the affected districts. A copy of the research article titled "Assessment of Fluoride in Ground Water for Drinking and Agricultural Purposes in Ramnapet Mandal of Nalgonda District, Telangana, India" by the department of Soil Science & Agricultural Chemistry, College of Agriculture, Hyderabad published in Journal of Pharmaceutical, Chemical & Biological Sciences ( July - August 2016) is attached as Annexure R-2. A copy of various press reports in relation to the emergent and continuing drought conditions in the State of Telangana are collectively attached as Annexure R-3 (Colly).
It is specific case of the State of Telengna as the project proponent have taken up Kaleshwaram project (earlier called Dr. BR Ambedkar Pranahita Chevalla Sujala Sravanthi Project) to provide water to the drought prone areas which will benefit some villages and some of the water will be for drinking and domestic consumption. As such, in addition to Kaleshwaram project to proposes allied projects. The project consists of a total of 28 'Packages'- out of these Package 1-5 have now been segregated into a separate project (the Dr. BR Ambedkar Pranahita project) and three barrages at Meddigadda Annaram and Sundilla villages have replaced these 5 packages. This change is proposed due to objections by the Respondent no. 3 and is in the Terretory of the State of Maharashtra.
The work in relation to Kaleshwaram project has been awarded, and work on the same is said to be in progress. The Kaleshwaram project,...... to the State of Telengana, there is no major environmental impact of it and therefore the public interest involved in the project is important.
They have referred to the finding of the High Level Committee Constituted to Examine WAPCOS Report which tabulated the package wise details and mentioned that "the Committee also felt that cost/acre is not criteria for Pranahita- Chevella LIS, it is not purely irrigation scheme. It is a multi purpose project having provisions for drinking water supply to twin cities, drinking water supplies to enroute village and water for industrial use" (emphasis supplied). A copy of the Minutes of Meeting of the Committee Constituted to Examine WAPCOS Report dated 27 August 2008 is as Annexure R-8.
The State of Telengana claims the project to be multipurpose project. It has categorically averred that part of the project requires construction on the Pranahita river, which may lead to some effect on the territory of the State of Maharashtra (Respondent No. 3), That the Government of erstwhile State of Andhra Pradesh issued a letter bearing no. 194/Maj.Irr.VII(i)/09 dated 02 january 2010 by which it circulated the draft agreement on interstate Standing Committee for the Kaleshwaram project. The erstwhile State of Andhra Pradesh wrote to the Respondent No. 3 which responded by its letter dated 13 October, 2010 bearing No. Misc-2009/CR-76/WRP where it said that it was not agreeable to the draft protocol on interstate Standing Committee nor was it agreeable to the draft agreement for the project. It further went on to State that before the State of Maharashtra could agree to the project, it had to study the project report and assess extent of Submergence, Rehabilitation and probable alternatives. Accordingly, it suggested the formation of an interstate Control Board (Chief Minister level Standing Committee (Principal Secretary Level) and Coordination Committee (Chief Engineer Level) to study all relevant issues. A Copy of the letter dated 13th October, 2010 bearing no. Misc-2009/CR-76/WRP form the erstwhile State of Andhra Pradesh to the Respondent No. 3 is attached as Annexure R-9.
It is further revealed from the Statement in the reply that the next meeting of the Coordination Committee was held on 24 March, 2014 where the Chief Engineer of Respondent No. 5 emphasized that Andhra Pradesh could divert but should not store water on the river and barrage at Tummidihetti, height that would suit this position. In such manner the storage capacity of the barrage would be negligible which would avoid submergence issues in Maharashtra. A copy of the Minutes of the Meeting of the Coordinating Committee dated 24 March 2014 is attached as Annexure R-12.
On 2 June 2014, in furtherance to the objective of the local population to secure water for themselves, the erstwhile State of Andhra Pradesh was divided into two State of Andhra Pradesh by the Andhra Pradesh Reorganization Act 2014 wherein by virtue of Section 60 if any contract had been executed in exercise of executive power of the erstwhile state of Andhra Pradesh then that contract from 2 June 2014 would be deemed to have been made in exercise of the executive power of Respondent No. 2 herein and the liability arising of that contract shall be discharged by Respondent No. 2. It is pertinent to mention that as on this date, the amending Notification bearing S.O. 1599 (E) dated 25 June 2014 had not been issued.
Thereafter a joint Technical Meeting of the Respondent No. 4 and the Respondent No. 5 was held on 26 October 2015 which decided that steps world be taken for survey of submergence areas and the consequent FRL that would be appropriate and agreeable with Maharashtra. A copy of the Minutes of the Technical meeting dated 26 October 2015 is attached as Annexure R-14. Pursuant to the Joint Technical Meeting, the Coordination Committee, held a meeting on 29 December 2015, and it was agreed that the FRL would be reduced and therefore the alignment of the project in the first 5 packages would be changed. It is not in dispute a meeting of the Standing Committee (Secretary Level) was held on 19 March 2016 whereby, it was agreed works at the initial Tummidihetti Barrage could be designed to have the FRL as +148.00, which would take care of the concerns expressed by Respondent No. 3 earlier. A copy of the Minutes of the Standing Committee dated 19 March 2016 are attached as Annexure R-15.
Apart from the in practicality of the project referred to above, it is necessary to refer to the chronology of events with relevant dates gives us an idea about the project in question. It is as follows. (extract from statement of the State of Telangana) After the division of the erstwhile State of Andhra Pradesh, the Respondent No. 2 immediately applied for forest clearance by its letter of 10 November 2014 for diversion of 2929.830 Ha for forest land; the Respondent No. 4 also filed its application for diversion of forest land for non-forest purposes with the Respondent No. 6 (1st Forest Clearance Application). The Respondent No. 4's 1st Forest Clearance Application was forwarded by the Respondent No. 6 to the concerned Secretary (on the basis that a survey of the land finalized the required land at 3170.4445 Ha. The Respondent No. 6 then finalized the proposal for diversion and forwarded through its letter of 29 December 2014. A copy of the letter dated 10 November 2014 of the Respondent No. 4 to the Respondent No. 6 is at Annexure R-16. A copy of the letter dated 29 December 2014 from the Respondent No. 6 (through its Principal Secretary) to the Respondent No. 1 is Annexure R-17.
While the first Forest Clearance Application was pending, the respondent no. 1 amended the Guidelines on diversion of forest land for non-forest purpose under the Forest (Conservation Act 1980 on 25 February 2014 by which it was stated that:
"the proposals seeking prior approval of the Central Government under the Act for the irrigation projects shall be processed in entirety. However, keeping in view of the long gestation period of such projects, user agency, for valid and cogent reasons, may spilt such projects in different phases. State government while submitting the proposal s to obtain in- principle (stage -I) approval of the Central Government under the act for diversion of the entire forest land required for the project, may intimate the extent of forest land required and time-schedule for execution of its each phase, and may request the Central Government to consider grant of final (Stage-II) approval under the Act for diversion of forest land required for the project in the phased manner, as may be specified by them....."(emphasis supplied)
In furtherance of this guideline and since DGPS surveys for the forest land required in Package 10 was completed, Respondent no. 4 applied by way of it letter dated 14 June 2016 where the Respondent no. 6 was informed that pursuant to the redesign and renaming of the project, the Respondent no. 4 was applying for diversion of 3.9694 Ha of forest land on a priority basis for Package 10 of the project (Specific Forest Clearance Application').
In the meanwhile, and separately, on 26 May 2016, the respondent no.4 wrote to the Respondent no. 6 informing it that "because of inter-state issue of submergence of land in Maharashtra, adequate water availability and increased storage requirements of reservoirs in the project, the Government has redesigned the project". It is important to note that this redesign was limited to Package 1 to 5 of the project which was then classified as different project - the Dr. BR Ambedkar Pranahita project. The letter stated that respondent no. 4 was constrained to withdraw the 1st Forest Clearance Application which was accepted by the Respondent no. 6 by its letter of 9 June 2016. A copy of the letter dated 26 May 2016 issued by the Respondent no. 4 to the Respondent No. 6 is attached as Annexure R-20. A copy of the letter dated 9 June 2016 from the Respondent no. 6 to the Respondent no. 4 is attached as Annexure R-21.
Thus it is seen that while 1st Forest Clearance Application was pending consideration by the Respondent no. 1, due to the change in alignment in Packages 1 to 5 of the project and the extent of forest land involved, on account of the objections from Respondent no. 3 State of Maharashtra, the Respondent no. 4 was constrained to withdraw the 1st Forest Clearance Application as also its Specific Forest Clearance Application by its letter of 13 February 2017 to comprehensively account for the final design of the Kaleshwaram project. By the letter of 13 February 2017, the Respondent no. 4 also applied for diversion of a total of 3221.2974 Ha of forest land and it is stated the application for Stage I clearance under section 2 of the Forest (Conservation) Act 1980 and The Forest Advisory Committee had taken in the Meeting dated 20 July 2017. A copy of the letter dated 13 February 2017 from the Respondent no. 4 to the Respondent no. 6 and Form A as Annexure R-22. Both applications are still pending
We have perused the details regarding public hearing given but it is of no relevance because those public hearings were conducted in pursuance to the application submitted by the State of Andhra Pradesh before state was divided and State of Telengana State was formed. Therefore the public hearing conducted on various date in the aforesaid villages is of no consequence as the State of Telangana has submitted fresh application which is under process. Undoubtedly applications has to pass through various stages including conducting of fresh public hearing
Having perused the pleading of the applicant and the statements in defence in the Reply filed by the State of Telangana (Respondent No 2) and its Irrigation Department who is executing the project namely the Respondent No. 4, we shall now consider regarding whether the grant of order to injunct the project activity of Kaleshwaram Irrigation Project of State of Telangana is necessary.
It is a well settled Principle of Law for grant of interim or ad-interim order of injuction the court would be circumspect and examine the case of the contesting parties firstly to ascertain existence of prima-facie case.
Existence of Prima Facie case is a harbinger for examining the other two aspects viz balance of convenience and irreparable injury or hardship besides whether the denial of interim order would lead to irreparable hardship which will be incompensatable in terms of money.
Keeping these cardinal principles we have examined the factual matrix of the case, the substance of which is extracted above. From it, it is manifest that the project nomenclatured as Kaleshwaram Lift Irrigation Scheme (KLIS) is modified scheme from the original scheme of irrigation project which the erstwhile State of Andhra Pradesh (before the State of Telangana was formed) had proposed in the year 2007. The State of Telangana (Respondent No. 2) and the Project Proponent (Respondent No. 4) have in categorical terms admitted in their reply statement (portion of which has been extracted in para supra) that the erstwhile State of Telangana had conceptionalized the project in the district of Medigadda, Sundilla, Kannepally, Goliwada, Tukkapur and 7 districts which are now in the territorial jurisdiction of Andhra Pradesh. Respondent No. 2 and Respondent No. 4 have gone on record that the Kaleshwaram Lift Irrigation Scheme is primarily an irrigation project of the State of Telangana with a plan to use part of the water harnesed by the project for supply of drinking water to the districts en-route to Hyderabad and Hyderabad City. They also gone on record to admit that the project would cover the area which is in the State Maharashtra.
We have perused the pre-feasibility report of the State of Telangana filed in the year 2014 with the MoEF (Respondent No. 10 and the reports submitted to Expert Appraisal Committee (EAC) with details of instant project (annexure A-1) The print out from the website of I and CAD department of Telangana affirms the Schematic background of Medigadda barrage which lies in Wadadam Village in the State of Maharashtra. It is declared as a irrigation.
From the pleading it is manifest that the Erstwhile State of Andhra Pradesh having planed the project in question abandoned it after formation of State of Telangana in the year 2013. Therefore what transpired subsequent to 2013 till now is relevant and important.
We may refer to the submission of the Learned Sr. Counsel Mr. Mukul Rohatgi for the State of Telagana that the State of Andhra Pradesh had been negotiating with the State of Maharashtra to implement the project and in that regard high level meeting between Chief Ministers of both the State were held. It is not disputed that the State has conceived the project in question Kaleshwaram project in question as Lift Irrigation Scheme for agricultural growth in the region with source point of the project near near Medigadda Village below the point of confluence of Pranahitha and Godavari River about 20 KM from the Kaleshwaram. The proposed Kaleshwaram design envisages construction of three barrages between Yellampally & Medigadda. The details of three barrages are hereunder:-
Medigadda Barrage on Godavari Near Medigadda ( Kaleshwaram),
Annaram Barrage on Godavari Downstream of Confluence of Manair River with Godavari river near Annaram
Sundilla Barrage on Godavari Downstream of Yellampally barrage near Sundilla.
The Respondents have also on record that the project activity would cover to irrigate 7,38,851 ha in the upland areas of Adilabad, Karimnagr, Niazamabad Warangal, Medak, Nalgonda and Rangareddy district of Telengana and the project also envisages that 180 TMC of water from River Godavari will be utilized for ailed purposes like drinking water, domestic consumption and industries.
The question now is what is the extent of land that will be required and whether the project would engulf forest land as well.
The statistical information given to us would show the project proponent (Respondent No. 4) had submitted an application for diversion of 3.9694 ha out of 3719.159 ha of forest land in the area referred above.
However, Learned Sr. Counsel Mr. Mukul Rohatgi for the State of Telangana submitted that though the project is nomenclatured as Lift Irrigation Project since water harnesed by the project would be utilized for drinking purposes to cater to the need of the several thousand people, the project should be exempted from the application of restrictions imposed under Section 2 of EIA Notification 2006. We have bestowed serious concerned to these aspects and examined the mandate of EIA Notification 2006. The Project in question is admittedly conceived and the State of Telangana had submitted application to the MoEF (Respondent No. 1) for grant of Environmental Clearance admitting the fact that the project is "irrigation project" and comes within the mischief of Entry 1(c) of the EIA Notification, 2006 as could be seen from the Notification No. S.O 1599(E) dated 25.06.2014. It is material to note that the draft notification did not include "irrigation" in Entry 1(c) of the notification but in the final notification issued on 25.06.2014 the "irrigation" is included in Entry 1(c). Therefore, there is no gain in the contention of the State of Telangana that the project is exempt from application of the restriction imposed by EIA Notification 2006 mandating to obtain prior Environmental Clearance before the project would commence.
In fact we had requested the State of Telangana to disclose to us the extent of forest land that would be affected by the project. At one time it was contended that no forest land would be involved but the map produced by State of Telangana itself discloses that substantial extend of forest land is involved.
We do not wish to refer to the details as it is not, now disputed that forest land is certainly involved and likely to be affected by the project. This is evident from the fact that after division of State of Andhra Pradesh and creation of State of Telangana, the Respondent No. 2-State of Telangana had applied for Forest Clearance vide letter dated 10th November, 2014 for diversion of 2929.830 Ha of Forest land and Respondent No. 4 the Project Proponent has also sought permission for conversion of forest land for non-forest activity to the Respondent No. 6. The first clearance application submitted by the Respondent No. 4 seeks grant of forest clearance or permission for conversion of forest land for non-forest activity attracting Section 2 of Forest (Conservation) Act, 1980. The survey report along with the application shows the project requires 3170.445 ha of forest land and application submitted to the Respondent No. 6 who is competent authority to grant permission for diversion. The case of the State of Telangana is that they are awaiting grant of clearance under Section 2 of the Forest Conservation Act, 1980 but later at the time of arguments it was informed that "in principle approval" conversion of forest land stage one clearance have been given by Respondent No. 1 (MoEF).
"the proposals seeking prior approval of the Central Government under the Act for the irrigation projects shall be processed in entirety. However, keeping in view of the long gestation period of such projects, user agency, for valid and cogent reasons, may spilt such projects in different phases. State government while submitting the proposal s to obtain in- principle (stage -I) approval of the Central Government under the act for diversion of the entire forest land required for the project, may intimate the extent of forest land required and time-schedule for execution of its each phase, and may request the Central Government to consider grant of final (Stage-II) approval under the Act for diversion of forest land required for the project in the phased manner, as may be specified by them....."(emphasis supplied)
Therefore, it is evident that the Respondent No. 4 after filing the application for grant of Forest Clearance have submitted application on 14th June, 2017 modifying the design of the project where substantial changes have been brought about.
This development also would show that the project is still not fully finalized and the State of Telangana is still examining the feasibility of the project depending upon the objections that have been raised by the stakeholders which includes State of Maharasthra. In the para supra we have referred to the extract of the minutes of the high power committee meeting between the State of Maharashtra and State of Telangana who had highlighted that large number of villages will face the threat of submergence and with State of Maharashtra the State of Telangana had agreed to alter the project design and the extent of its project activity. This will also show that the project is not fully finalized and it is material to note due to change of alignment in barrage 1 to 5 of the project and extent of forest land involved on account of objection from the State of Maharashtra, Respondent No. 4 was constrained to withdraw the first clearance application as also its specific forest clearance application vide letter dated 30th February, 2017 to comprehensively account for final design of Kaleshwaram Project.
The letter dated 30th February, 2017 of Respondent No. 4 bears testimony to the fact that 3221.2974 ha of forest land is involved. The Forest Advisory Committee in its meeting held in the month of February-July, 2017 has taken note of these factual aspects. Therefore, it is evident that even as by the end of February, 2017 State of Telangana had not finalized the project and had in fact withdrawn its application for Forest Clearance. This would undoubtedly mean and imply the Telangana has to obtain Forest Clearance before the project activity is commenced.
There are two legal issues which confront the State of Telangana. The first is for Kaleshwaram Lift Irriagation Project activity which is designed, conceived and sought to be implemented by the State of Telangana is a "Lift Irriagation Project". It is primarily irrigation project though of course portion of water that may be harnessed is proposed to be utilized to supply drinking water to Districts en-route to Hyderabad and Hyderabad City. That does not take away the Kaleshwaram Lift Irriagation Project out of the Entry 1(c) of the EIA Notification, 2006 requiring prior Environmental Clearance. The second aspect is about Forest Clearance. We need not repeat, except to state that the State has admitted evolvement of forest land and therefore in view of the decision of the Hon'ble Apex Court, apart from the Statutory Restriction under the provision of Section 2 of Forest (Conservation) Act, 1980, the has held project proponent cannot proceed with the project activity till requisite permission are obtained. It is further noticed that the contractor involved in the project is a company called L & T and it is alleged that the company had cleared large extend of forest land cutting of trees discriminately for construction of staff quaters for the its employees in the prime forest area. The letter of the Forest officer produced by the applicant substantiates this allegation that number of trees are felled by the contractor executing project and it is apprehended by the Applicant and all concerned that if the project actually proceeds to construct, it will destroy much more area.
The applicant has further produced the newspaper report to show that the project proponent was blasting the rocks and tunnels, during such activity an incident occurred in the recent past where, several construction workers died due to land slide, collapse of tunnel supporting structure etc. The State of Telangana had not disputed the said incident but has brushed it aside as "Accident" beyond its control. We do not wish to record any finding on it. But it is necessary to take note of such incident to know whether the Respondent No. 2 and Respondent No. 4 are proceeding with construction activity after the project is properly evaluated and obtaining environmental clearance and other clearance under provision of Section 2 of the Forest (Conservation) Act, 1980.
For the reasons discussed above we are satisfied that a prima-facie case has been made to injunct the project activity which is undoubtedly impermissible in law view of the restrictions imposed by Section 2 of EIA Notification, 2006 and provisions of the Forest (Conservation) Act, 1980 without obtaining required permission.
However, we hastened to add that we are not declaring the project to be impermissible till the decision is taken on the merit of the case. We are of the opinion that, in a given circumstance to safeguard the environmental which is partly in absentia and likely adversly affected impacting the lives of several villagers, interim order is necessary.
In a case of this nature we need to take note of the Public Trust doctrine which the Hon'ble Supreme Court has highlighted in its judgment in the case of Civil Apeal No. 4941 of 2013-Association for Environment Protection Vs. State of kerala and others.
We do wish to extract in this order the details observation of Hon'ble Supreme Court except to state that "public trust doctrine The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purpose. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private parties if such transfer effects public interest and mandates affirmative State action for effective management of natural resources and empowers citizen to question ineffective management thereof.
The heart of public trust doctrine is that it imposes limits and obligation on the Government agencies and their administrators on behalf of all the public and specially future generations.
Public Trust Doctrine is exerting long established public rights over short term public rights and private gain"
In the instance case thought it cannot be said that the project which is conceived to provide water in the water scares areas affected by drought and portion of it for drinking purpose is not for a public good but the project to be implemented the state is obliged to enquire into, evaluate and asses the pros and cons of the project on the villages and people living therein including flora and fauna and project eco-sensitive and fragile zone.
Several villages are likely to be submerged by the instant project activity and large extent of forest land will be utilized, destroying the trees, flora and fauna. The ecological sensitive zone which is fragile in the area will definitively be a victim of the project. Therefore, what is expected from the State Telangana is to examine the project activity dispassionately and to design it to cause minimal adverse affect on the environment.
In view of the serious objection raised State of Maharashtra it is evident till required permission are obtained even if Telangana proceeds with the project it will be halted in the territory of Maharashtra. In such circumstances the project activity will be illegal activity in the absence of required permission and money that will be spend being public money will be loss to exchequer. Therefore, the precautionary principle has to be applied and the State of Telangana and Project Proponent has to be directed to reexamine the project or await till the entire project is evaluated by the EAC and public hearing is conducted giving opportunity to the effected.
Before parting we may record that till this day there is no material to show what is the stage of environment clearance in view of its withdrawal of the earlier application in the month of February, 2017. The burden is upon the State of Telangana to show the project activity is permissible which it has not fully substantiated.
In the circumstances, admittedly the project activity comes within the mischief of Entry 1(c) of the EIA Notification, 2006 and Forest (Conservation) Act, 1980. The project has to be injucted till the required permission are obtained and we make it clear that it will be burden upon the state to establish that it has or will take all required steps that will be necessary to protect the environment and apply the doctrine of precautionary principle while taking benefit of doctrine of sustainable development.
Being of this view we have already pronounced the following order for the reasons which are as above.
Operative Portion of Interim Order
For the detailed reasons to follow:
By an Ad interim of injunction the respondent nos. 3 and 4 are restrained from carrying out any construction activities for the Kaleshwaram Lift Irrigation Scheme or any other activity like felling of trees, blasting and tunnelling in the forest areas in violation of Forest Conservation Act, until the mandatory statutory clearances including Environment and Forest clearances are granted.
However, we grant liberty to the respondents to seek modification or clarification of this order, upon grant of such clearance.