National Green Tribunal
D Chandramouleswara Reddy vs Union Of India on 22 December, 2022
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 148 of 2021 (SZ) &
I.A. No. 35 of 2022(SZ)
with
Original Application No. 212 of 2021 (SZ)
(Through Video Conference)
IN THE MATTER OF
1. D. Chandramouleswara Reddy,
S/o D. Shankar Reddy,
H. No.S-1-321,
Singapore Township, Puttampalli,
YSR Kadapa District,
Andhra Pradesh-516002
2. Avva Venkatasubba Reddy,
S/o A. Papi Reddy,
H.No. 2-103-A,
Jillela Village, Banaganapalli,
Kurnool District,
Andhra Pradesh- 518176.
3. Sk. Jani Basha,
S/o Saida Saheb,
H. No.2-232, Maszid Bazar,
Paluvai, Rentachintala Mandal,
Guntur District,
Andhra Pradesh-522421.
4. Vajrala Koti Reddy,
S/o V. Gali Reddy,
H. No.1-16A, Rajapalem (v),
Tripuranthakam Mandal,
Prakasam District,
Andhra Pradesh-523326.
5. Naraboina Venkata Rao,
S/o VN. Venkateshwarlu,
H. No.4-125, PataPaluvai (v),
RentachinthalaMandal,
Prakasam District,
Andhra Pradesh-522421.
6. Siddadapu Gandhi,
S/o Rama Raghaviah,
H. No.4-237, Madugula Post,
Gurazala Mandal,
Guntur District,
Andhra Pradesh-522415.
7. Garikapati VenkataRamanaidu,
S/o Garikipati RaghavaRao,
H. No.2-14 Peumalli Post,
Penumalli Village,
Pedanamandal, Krishna District,
Andhra Pradesh-521369.
1
8. Annem Soreddy,
S/o Gali Reddy,
1-201/1, Gopireddyari Street,
Tallapalli Village, Macherla Mandal,
Guntur District,
Andhra Pradesh-522426.
9. Pandipati Venkaiah,
S/o PandipatiYesobu,
H.No. 4-206, Valiveru (V),
Tsunduru Mandal, Guntur District,
Andhra Pradesh-522318.
...Applicant(s)
Versus
1. Union of India,
Represented by its Secretary,
Union Ministry of Jal Shakti,
Shram Shakti Bhavan,
New Delhi- 110001.
2. Union of India
Represented by its Secretary,
Union Ministry of Environment, Forest & CC,
Indira Paryavaran Bhawan,
Jor Bagh, New Delhi- 110003.
3. National Board for Wildlife,
Represented by its Chairman,
Ministry of Environment, Forest & CC,
Indira Paryavaran Bhawan,
Jor Bagh, New Delhi- 110003.
4. Krishna River Management Board,
Represented by its Member Secretary,
Govt. Of India, Ministry of Water Resources,
5th Floor, Jalasoudh, ErrumManzil,
Hyderabad- 500082.
5. State of Telangana,
Represented by its Chief Secretary,
Telangana Secretariat, 5th Floor,
Burgula Rama Krishna Rao Bhavan,
NH-44, Hill Fort, Adarsh Nagar.
Hyderbad- 500022.
6. State of Andhra Pradesh,
Represented by its Chief Secretary,
Secretariat, Velagapudi,
Guntur District,
Andhra Pradesh- 522503.
...Respondent(s)
With
State of Andhra Pradesh,
Represented by its Chief Secretary,
Secretariat, Velagapudi,
Guntur District,
Andhra Pradesh- 522503.
2
...Applicant(s)
Versus
1. Union of India,
Represented by its Secretary,
Union Ministry of Jal Shakti,
Shram Shakti Bhavan,
New Delhi- 110001.
2. Union of India
Represented by its Secretary,
Union Ministry of Environment, Forest & CC,
Indira Paryavaran Bhawan,
Jor Bagh, New Delhi- 110003.
3. National Board for Wildlife,
Represented by its Chairman,
Ministry of Environment, Forest & CC,
Indira Paryavaran Bhawan,
Jor Bagh, New Delhi- 110003.
4. Krishna River Management Board,
Represented by its Member Secretary,
Govt. Of India, Ministry of Water Resources,
5th Floor, Jalasoudh, ErrumManzil,
Hyderabad- 500082.
5. State of Telangana,
Represented by its Chief Secretary,
Telangana Secretariat, 5th Floor,
Burgula Rama Krishna Rao Bhavan,
NH-44, Hill Fort, Adarsh Nagar.
Hyderbad- 500022.
...Respondent(s)
O.A. No. 148/2021
For Applicant(s): Mr. Gautam S Raman
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R2 & R3
Mr. Ramchandra Rao, AAG, Mr. A. Sanjeev
Kumar, Spl. Govt. Pleader along with Mrs. H.
Yasmeen Ali for R5
Mrs. Madhuri Donti Reddy for R6/I.A.
O.A. No. 212/2021
For Applicant(s): Mr. Sriram, AG, alongwith Mrs. Madhuri Donti
Reddy
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R2 & R3
Mr. Ramchandra Rao, AAG, Mr. A. Sanjeev
Kumar, Spl. Govt. Pleader along with Mrs. H.
Yasmeen Ali for R5
Judgment Reserved on: 17th August, 2022.
Judgment Pronounced on: 22nd December, 2022.
3
CORAM:
HON‟BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON‟BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member O.A. No. 148 of 2021
1. The well-being and economic prosperity of any country heavily relies on its field of agriculture which is undoubtedly based on harnessing water resources, in particular utilising the river water. Agriculture and maintenance of irrigation depends on the availability of river water, therefore, the sharing of the river water plays an important role in the welfare of the people not only who are into the agricultural field but also the flora and fauna, ecology and environment etc. Water plays a pivotal role in getting the bare necessity of human existence such as generation of power for industrialization and for better quality of life, comfort, luxuries etc. When everybody wants to claim the highest quantity of water to drive the maximum benefit out of it, there arises a clash of interest among the people of the area. In India geographically all the major rivers are flowing inter-state which resulted in many multi-purpose river valley schemes to benefit several riparian States. Unfortunately, the sharing of the river water has become a perpetual source of conflict between the States. As each State wants to have the water to the maximum extent irrespective of the schemes or agreements resulting in the inter-state water dispute to be a persistent phenomena in the country. It is for the Central Government to resolve the disputes relating to water sharing between the States and also give the technical clearances to the irrigation projects proposed by the States which is the utmost responsibility of the Central Government. The Krishna River dispute is between the States of Maharashtra, Karnataka, Andhra Pradesh and now Telengana. The water dispute is high in country in sharing the river water between upstream and downstream States who mainly share the river flow.
2. The instance case relates to sharing of water of River Krishna among States of Telengana and Andhra Pradesh. The Krishna Water Dispute Tribunal-I (for short „KWDT-I‟) gave its decision and report in the year 1976 determining 75% yield of River Krishna as 2060 TMC and return 4 flows as 70 TMC totalling 2130 TMC while allocating 811 TMC to the erstwhile State of Andhra Pradesh. It gave liberty to utilize water over and above 75% without any right over such use as per proviso to Clause V(c) of the final order. Based on such liberty granted by KWDT-I the State of Andhra Pradesh had taken up several projects to use the remaining water. There were demands under those projects projected before KWDT-II for providing drinking and irrigation facilities. Aggrieved by the decision rendered by KWDT-II, the State of Andhra Pradesh had filed SLP before the Hon‟ble Supreme Court which are pending. KWDT-II also made allocation of 1005 TMC to the erstwhile State of Andhra Pradesh at different dependabilities. Meanwhile, the erstwhile State of Andhra Pradesh was bifurcated into two States of State of Telengana and State of Andhra Pradesh on 02.06.2014. The Union of India constituted the 4th respondent which is Krishna River Management Board (for short „KRMB‟) for appraising construction of new projects connected with the development of water resources relating to River Krishna and its tributaries by the successor States.
3. In this context, it was specifically mentioned that allocation made by the River Water Tribunals shall remain the same and that no new project shall be taken up without obtaining sanction of the Apex Council on river water resources which will consider the said proposal after it was appraised by the 4th respondent and the Central Water Commission (for short „CWC‟). In view of the reorganization of the State, the projects of Srisailam Left Bank Canal (SLBC), Kalwakurthy LIS and Nettampadu LIS were given to the 5th respondent project proponent and the Telugu Ganga Project, Handri Niva Sujala Sravanti (HNSS), Galeru Nagari Sujala Sravanti (GNSS) and Veligonda have gone to the 6th respondent. Accordingly, the 5th respondent had completed Kalwakurthy and Nettampadu projects which were under construction and which were notified by the erstwhile State of Andhra Pradesh. The 5th respondent has no right to undertake any new project without following the said procedure. Of the 811 TMC at 75% dependable yield allocated to KWDT- I, the 5th and 6th respondents by their mutual agreement dated 19.06.2015 agreed that the said 811 TMC allocated by KWDT-I would be shared between them as 299TMC:512TMC respectively. It is stated by the applicant that once the division of erstwhile State of Andhra based on territory done the 5th respondent, project proponent, is not entitled to more than 299 TMC as per KWDT-I allocation. Since, the award of KWD- II is sub-judiced before the Hon‟ble Supreme Court the status-quo order 5 granted is also enforced. The surplus flows are also meant for specific purpose under both the awards, therefore, the 5th respondent, project proponent, now attempting to construct Palamuru Rangareddy Lift Irrigation Scheme (PR LIS) is without any allocation and any permission from any statutory authority. The new scheme, namely, PR LIS based on flood flows to an extent of 90 TMC to be withdrawn within 60 days of flood season with a cost of Rs. 35,200 crores from the foreshore of Srisailam vide G.O. Ms. No. 105 dated 10.06.2015 is alleged to be unilateral and without necessary Environmental Clearances. Though issue relating to sharing of waters by the States is beyond the scope of this Tribunal, projects including irrigation schemes require prior Environmental Clearance as per the environmental laws in vogue and are subject to scrutiny by this Tribunal.
4. The 2nd respondent had issued EIA Notification on 14.06.2006. Under Sub-Section 3 of Section 3 of Environment (Protection) Act, 1986. As per the schedule to the said notification, the river valley projects are shown at serial no. 1(c). Projects which have more than 10,000 ha. of culturable command area, they are classified under category „A‟ project and the projects having less than 10,000 ha. culturable command area are classified as „B‟ category projects. The notification further categorically states that "all projects or activities included as Category 'A' in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the Central Government in the Ministry of Environment and Forests (MoEF) on the recommendation of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purpose of this Notification". Therefore, it is mandatory that projects categorized under Category A shall obtain prior Environmental Clearance consisting of four stages procedure, namely, (i) screening, (ii) scoping,
(iii) public consultation, (iv) appraisal. It is alleged by the applicant that the 5th respondent, who is the project proponent, without following the said procedure had started unilaterally constructing the project contrary to the EIA Notification, 2006 which is illegal. It is stated such illegal construction by the 5th respondent would be detrimental to the interest of the applicant and other farmers and the people of the 6th respondent, State for the purpose of irrigation and drinking water and also the industrial needs.
65. It is further stated that the 5th respondent had taken up the construction of PR LIS to draw 90 TMC of flood waters from the foreshore of Srisailam Reservoir without any feasibility study on water availability and the adverse impact on downstream projects because of such unauthorised constructions on the State of Andhra Pradesh and its people. The act of the 5th respondent would also deprive the 6th respondent State of its assured water for the existing schemes in operation. It is stated that the Full Reservoir Level (for short „FRL‟) of Srisailam Reservoir is at +885 feet and the 5th respondent, project proponent, would be lifting dependable waters at a level of +800 feet much below the Minimum Dry Level (for short „MDDL‟) from the dead storage of the reservoir and such illegal drawls would deplete the reservoir causing severe harm to the interest of the applicant and the people of the 6th respondent State who are solely dependent on the Srisailam project. The said construction by the 5th respondent would also take away the legal entitlement of water to the people in the Rayalaseema region of the 6th respondent, State and also the drinking water supply to the city of Chennai.
6. The farmers of the 6th respondent filed W.P. No. 116 of 2016 before the Hon‟ble Supreme Court seeking a direction with reference to the construction of two projects, namely, Palamuru-Ranga Reddy LIS and Dindi LIS as per their G.O. No. 105 dated 10.06.2015 and G.O No. 107 dated 11.06.2015. In the said writ petition, the Hon‟ble Supreme Court had directed the Apex Council to convene a meeting at the earliest and examine the issue with reference to the construction of two projects referred above after affording an opportunity of hearing to the concerned State parties by order dated 20.07.2016. Accordingly, the Apex Council also convened a meeting on 21.09.2016 wherein the Ministry of Water Resources stated that the PR LIS and Dindi LIS are not among the six projects mentioned in the 11th Schedule of the Act 6 of 2014 and had not been appraised and recommended by the KRMB as per Section 84(3)(ii) of the Act 6 of 2014. The 5th respondent, project proponent also undertook that "Telangana will restrict itself within the allocation made by KWDT-II and will go ahead with the above two projects". It is submitted that the undertaking is absolutely misleading as there was no allocation by KWDT-I or II for the proposed utilisation under PR LIS and the undertaking is given by the 5th respondent without any right. Above all the unauthorised construction of PR LIS by the 5th respondent is contrary to the procedure contemplated under Act 6 of 2014.
77. While so, O.A. No. 273 of 2016 was filed before this Tribunal seeking an order of permanent injunction restraining the project proponent from carrying out any work relating to PR LIS without mandatory clearances and permissions. Initially an order of interim injunction was granted on 13.12.2016 directing the 5th respondent not to proceed with the construction work of PR LIS in violation of the provisions of Forest (Conservation) Act, 1980 and without obtaining the mandatory clearances under the EIA Notification.
8. The 5th respondent also filed Writ Petition No. 104 of 2017 before the Hon‟ble High Court at Hyderabad against the said interim order granted. The Hon‟ble High Court set aside the order passed by this Tribunal relying on the Section 19(4)(i) of the National Green Tribunal Act, 2010 only on the ground that the said interim order was granted ex-parte and directed the writ petitioner to go before the Tribunal.
9. This Tribunal had also constituted a Committee of experts to submit a report on whether PR LIS consisting of the components of irrigation and drinking water supply could be proceeded with and the Committee was also directed to inspect the portion of the site which is allegedly within the forest area. The applicant further states that pending the Original Application, the project proponent gave an undertaking which was recorded by the Tribunal that the 5th respondent would proceed with disputed project only with regard to supply of drinking water and not for irrigation. However, the 5th respondent has gone ahead with the construction of huge reservoirs which are essential of irrigation scheme especially in a Lift Irrigation Scheme which relies on pumping of nearly 90 tons of water within a short period of 60 days for irrigation component. While so, the Original Application No. 273 of 2016 was transferred to the Principal Bench at New Delhi wherein the same was dismissed as not pressed.
10. Interestingly, the 5th respondent had made an application to the 2nd respondent on 28.08.2017 under the EIA Notification for obtaining Environmental Clearance for the composite project of drinking and irrigation. Pursuant to the same, the 2nd respondent had accorded clearance to the project proponent for pre-construction activities along with Terms of Reference as per Section 7 of the EIA Notification, 2006 on 11.10.2017 for the preparation of Environment Impact Assessment report. Admittedly, so far no public hearing has been conducted and final 8 clearance for the project has not yet obtained. An application was made before the 2nd respondent under Forest (Conservation) Act, 1980 on 26.05.2017 based on the recommendations of the Forest Advisory Committee and In-Principle approval was issued on 03.04.2018 for diversion of 205.4811 ha of forest land only in Achampet division of Nagarkurnool district for proposed works of Lift-I pump house and formation of Anjanagiri Reservoir, earth work excavation and construction of tunnel within Anjanagiri Reservoir at Narlapur and Veeranjaneya Reservoir at Yedula for the PR LIS project subject to conditions. This permission is meant for the forest clearance and that has got nothing to do with the construction which is an unauthorised activity. Final approval was also granted by the 2nd respondent under Forest (Conservation) Act, 1980 in favour of the 5th respondent on 25.01.2019. In the meanwhile the 6th respondent was attempting to get the meeting of the Apex Council convened. The 4th respondent, KRMB by letter dated 30.05.2020 directed the 5th respondent, project proponent not to go ahead with the new project till the projects are appraised by the 4h respondent and CWC and sanction of the Apex Council is obtained.
11. Despite specific direction not to proceed with the construction, the project proponent had unilaterally and indiscriminately proceeded with the construction of PR LIS without obtaining any clearance from the 4 th respondent/Apex Council or under the EIA Notification, 2006. There is no permission granted under the Wildlife (Protection) Act, 1972 and Environment (Protection) Act, 1986 without the socio-economic impact assessment being done.
12. Since, the 5th respondent has no right to construct the PR LIS without following the mandatory procedure as per the 11th Schedule of Act 6 of 2014 and EIA Notification dated 14.09.2006, the applicants have filed the above Original Application to declare the construction of PR LIS without any allocation as per KWDT-I and II awards and without final permission under EIA Notification and its subsequent amendments as unilateral and unauthorised.
13. In response to the above allegations, an affidavit has been filed on behalf of the 1st respondent, Ministry of Jal Shakti and the 4th respondent, Krishna River Management Board (for short „KRMB‟). It is stated by these respondents that as per KRMB office records, the erstwhile Government of Andhra Pradesh, I&CAD Department vide G.O. 9 Ms. No. 72 dated 08.08.2013, had accorded approval to the estimate for an amount of Rs. 6.91 crores for conducting detailed survey investigation and design to prepare Palamuru Lift Irrigation Scheme and identify an ayacut of 10 lakh acres by lifting 70 TMC of flood water to irrigate drought prone areas of Mahabubnagar, Rangareddy and Nalgonda districts and also supply drinking water to the villages enroute and water for the industrial use and prepare a detailed project report for the proposed project from foreshore of Jurala project.
14. An estimated approval for Rs. 35,200 crores was also accorded by the Government of Telegana vide G.O. Ms. No. 105, I&CAD Department dated 10.06.2015 to take up the PR LIS. The inter-state agreement, namely, the Bachawat Tribunal Award (KWDT-I) was constituted in the year 1969 to resolve the dispute among the riparian States and an award was passed in December, 1973. A final state-wise allocation was made duly protecting the existing uses of these States, distributing between the States of Maharashtra, Karnataka and Andhra Pradesh. The KWDT-I held that the allocations to the party States are enbloc. As per which Andhra Pradesh as combined State is having 811 TMC of water at 75% dependability. While so, at the intervention of the Hon‟ble Supreme Court an Apex Council Meeting was held on 21.09.2016 to discuss on the construction of two new projects, namely, PR LIS and Dindi LIS contemplated by Government of Telangana.
15. As regards the working arrangement for sharing of water, it was decided that Government of India will make efforts to expedite the finalization of KWDT-II award. Subsequently, Government of Andhra Pradesh requested the Ministry of Jal Shakti to advise the State of Telangana to stop new projects. Accordingly, KRMB was advised by the Ministry of Jal Shakti on 29.05.2020 to issue a letter to the Government of Telangana not to proceed with the new projects till Detailed Project Report is obtained. In turn the KRMB also advised the State of Telangana based on the directions given by the Ministry of Jal Shakti not to proceed with the project till the Detailed Project Report is submitted and appraised by the Board and sanctioned by the Apex Council vide letter dated 04.06.2020.
16. In the 2nd Apex Council meeting held on 06.10.2020 it was decided that both the States shall submit DPR of the new projects to the Board for appraisal and subsequent sanction by the Apex Council which was agreed by the Hon‟ble Chief Ministers of the respective States. It is further 10 pointed out that as per Para-2 (f) of Gazette Notification of Jurisdiction S.O. 2842(E) dated 15.07.2021 on Krishna River Management "Both the State Governments shall stop all the ongoing works on unapproved projects as on the date of publication of this notification until the said projects are appraised and approved as per the provisions of the said Act and in accordance with the decisions taken in the 2nd meeting of the Apex Council. If approvals are not obtained within six months after the publication of this notifications, full or partial operation if any of the said ongoing unapproved projects shall cease to operate." There was further direction that both the Governments shall complete the unapproved projects appraised and approved as per the provisions of the Act in accordance with the decision taken in the Apex Council. If approvals are not obtained within the stipulated time of six months, such completed unapproved projects shall cease to operate. The PR LIS in Telangana is listed as the major, ongoing, un-approved and non-operational project in the Gazette S.O. 2842(E). Accordingly, the respondent nos. 1 and 4 submitted that the DPR has not been received in respect of PR LIS so far in KRMB for appraisal.
17. The counter affidavit on behalf of the 2nd respondent, namely, the Ministry of Environment, Forest and Climate Change (MoEF&CC) was filed. The MoEF&CC has stated that those projects which fall under Category „A‟ requires prior Environmental Clearance from the MoEF&CC. The irrigation project mentioned at Item no. 1(c) are covered under Category „A‟ if the culturable command area is more than or equal to 50.000 ha. Since, the PR LIS is 4,97,976 ha., it comes under Category „A‟ under Item no. 1(c) of the Schedule appended to the said notification which requires prior Environmental Clearance from MoEF&CC. The 5th respondent, who is the project proponent, had submitted a proposal dated 04.09.2017 for grant of Terms of Reference to conduct EIA study for grant of Environmental Clearance to take up PR LIS for construction of canal network for Phase-II irrigation project. The details of the said project mentioned in the pre-feasibility report mentioned that the project PR LIS is undertaken for the purpose of drinking, irrigation and industrial use. The scheme has been planned in two phases, Phase-I, water supply project and Phase-II, irrigation project. Phase-I was planned with 06 numbers of reservoirs and 05 numbers of lifts for basic human consumption. It was also informed that the immediate purpose of the project is to provide water for drinking and industrial uses. Since, the water supply project does not fall under the purview of the Environmental Clearance of EIA 11 Notification, 2006, the project was initiated. Phase-II being an irrigation project, it will require a total of 15.790 ha., which will be acquired for the construction of various canal network. The PR LIS envisaged lifting of 90 TMC of flood water in sixty days during the flood season from the foreshore of Srisailam reservoir on Krishna River through 05 separate stages to provide drinking water facilities and to provide water for industrial use. The utilization of the entire 90 TMC of flood water was for the purpose of drinking water facility covered under Phase-I of the project, as projected by the project proponent. It will come outside the ambit of EIA Notification, 2006 as drinking water projects are being exempted from obtaining Environmental Clearance. The MoEF&CC had received TOR specifically for the construction of canal network under Phase-II of irrigation projects.
18. The above proposal was appraised by the Expert Appraisal Committee for River Valley and Hydroelectric Power Projects (RV & HEP) on 22.09.2017 after considering all the facts of the project as presented by the 5th respondent, the EAC recommended for grant of scoping/ToR clearance on 11.10.2017 with public consultation for pre-construction activities at the proposed site as per the provisions of EIA Notification, 2006 and subsequent amendments for preparation of EIA and EMP report. However, it is stated that EIA/EMP report has not been submitted by the project proponent till today. Hence no final Environmental Clearance has been granted for the project by the Ministry. The irrigation project is still under consideration for Environmental Clearance with the MoEF&CC. The MoEF&CC, who is the part of the Joint Committee, has also filed a report.
19. The 5th respondent, State of Telengana, who is the project proponent, has filed its reply through the Special Chief Secretary, I&CAD Department, Government of Telengana. It is stated that the PR LIS was planned and the land acquisition process for this purpose was commenced in the year 2015. PR LIS had received approval from the Government in G.O. Ms. No. 105 dated 10.06.2015 after which the land acquisition notice was published on 25.08.2015 for acquisition of necessary land for works relating to PR LIS. Even in the said notification, it was mentioned which are the land being acquired while inviting objections, if any. The State of Telengana also had invited bids for tenders for construction in the newspaper on 16.01.2016. Even during that time, it was made public that lands were being acquired for PR LIS scheme indicating their extent also. The PR LIS was widely publicized and covered 12 extensively by the media. Hence, it is contended that the applicants have come to this Tribunal belatedly, however that issue had been decided by this Tribunal independently and a detailed order was passed in that regard.
20. Regarding the project, it is stated that Mahabubnagar, Nagarkurnool, Gadwal, Narayanpet and Wanaparthy districts are worst drought prone areas. There is tremendous shortage of drinking water and the available water are fluoride affected. As the fluoride content was twice the permissible limit for a drinking water, the large part of the population has to migrate to various parts of the Country. The drought condition also was adding to the agony. In order to redress the situation, the State of Telengana had to take up the PR LIS for alleviating the misery of these drought prone areas to benefit 1226 villages where about 50 lakh people will get drinking water. In addition, 12.30 lakh acres of agricultural land will also get irrigated. Therefore, the PR LIS scheme is extremely important for the above referred districts. The PR LIS has been awarded in the month of April-May, 2016 through a tender process as the scheme intended to supply the much needed drinking water to the upland areas of Telangana. The PR LIS envisaged lifting of 90 TMC of flood water in 60 days during the flood season from the foreshore of the Srisailam Reservoir on Krishna River at Yellur through 05 separate stages. Each of the said 05 stages comprises of reservoir and canals/tunnels between each reservoir for taking the water forward.
21. The 05 stages would include (i) an approach channel from the existing Srisailam Reservoir which leads to the pumping station with tunnel which lifts the water to the proposed Anjanagiri Reservoir at Narlapur village, (ii) the 2nd lift also has a similar approach channel connected to a canal and pumping station with tunnel lifts water from proposed Anjanagiri Reservoir to the proposed Sri Veera Anjaneya Reservoir at Yedula, (iii) the 3 rd lift is from the Sri Veera Anjaney Reservoir through pumping station with tunnels and canals to fill the proposed Venkatadri Reservoir at Vattern Village and Kurumurthyraya Reservoir at Karvena Village, (iv) the 4th lift is with canal and pumping station with tunnels to take water from Kurumurthyraya Reservoir to the proposed Udandapur Reservoir and (v) the 5th lift is from the proposed Udandapur Reservoir through canals and pumping station to the final proposed KP Lakshmidevipally Reservoir.
1322. The reply of the Telengana State further reiterated that the purpose of PR LIS is for providing drinking water and industrial purposes and later for irrigation as well. For the present, however, the reservoirs and the connecting tunnels are meant for drinking and industrial use. The work already awarded consists of 18 packages upto Udandapur and substantial expenditure have been incurred and any stoppage would result in mounting time overruns and cost escalation. It is specifically stated that since it is intended only for drinking water and does not presently proposed to cater to irrigation, Environmental Clearance as per EIA Notification is not necessary. It is only by way of abundant caution the State of Telengana had applied on 28.08.2017 in anticipation for the stage when the scheme would also be extended to irrigation. As per the ToR, the project will be implemented in two phases. The Phase-I would be drinking water component which envisages the lifting of 90 TMC flood water in 60 days during the flood season and providing water facility to 1226 villages and in 70 mandals of erstwhile Mahabubnagar, Rangareddy and Nalgonda Districts. The Phase-II is the irrigation component in which canals network will be developed from the reservoirs to create irrigation to upland areas of erstwhile Mahabubnagar, Rangareddy and Nalgonda Districts for an ayacut of 4,97,976 ha. The stored water shall be used for irrigation purposes in various districts through a network of canals. In addition to the drinking water facility the water would be used for irrigation also. It is specifically stated that no forest land is involved in the proposed project.
23. The project proponent further had contended that a river valley project is one which is built on the river valley and where the project interrupts the free flow of river water. Whereas in the proposed project there is already an existing reservoir (Srisailam Reservoir) from which water will be drawn out. The water would be flood water, therefore, it would not interrupt the flow of water from the Krishna River. PR LIS also does not involve any construction of dams or any proposed work for production of electricity. The project proposed the 2nd stage which is for irrigation only at a later stage. In the counter, it is further stated that the process of getting Environmental Clearance to the project is under way and has completed three stages upto public hearing/consultation. The project proponent is following all statutory procedure for getting approvals to the irrigation component under Phase-II as per EIA Notification dated 14.09.2006. It is further stated that the PR LIS as presently planned has no provision for irrigation. Irrigation requires planning and construction of network of canals originating from each proposed reservoir to take water to the 14 surrounding villages. The schematic diagram of PR LIS clearly establishes that there are no such distributor ayacut branch canals envisaged nor a proposed to be constructed. Hence it was stated that the PR LIS presently falls under the category of Entry 1(c) of the Schedule to the EIA Notification.
24. There is an Amrabad Tiger Reserve located in the vicinity and planned in the PR LIS. The project proponent has stated that it does not involve any area of the said Tiger Reserve either in the core zone or buffer zone and further the Principal Chief Conservator of Forests, Telengana has proposed to notify, by way of abundant caution, a 01 km outside the buffer zone or Amrabad Tiger Reserve as an Eco-Sensitive zone which is pending. Therefore, there is no requirement for the PR LIS to obtain any clearance, approval or permission under the Wildlife Protection Act from the MoEF&CC or the National Board of Wildlife (NBWL). The 5 th respondent denied the fact that there are Chenchu Tribals in the sensitive area under this project and approval should not have been granted without considering the same as contended by the applicants are all baseless. The State of Telengana further has indicated that the PR LIS scheme is not a new project and the same was conceived even prior to the bifurcation of the State vide G.O. Ms. No. 72 dated 08.08.2013. There is no challenge to the approvals granted by the 2nd respondent on 03.04.2018 and 25.01.2019. As the project proponent is not entering into any reserved forest, there is no necessity for applying for permission before the NBWL. So, on the above grounds, the State of Telengana pleaded that the application has to be rejected.
25. The 5th respondent, project proponent, had filed an additional affidavit dated 08.12.2021 contending that the immediate purpose of PR LIS is to provide water for drinking and industrial purposes and later for the irrigation as well. For present the reservoirs and the connecting canals/tunnels are meant for drinking and industrial use of water and the scheme is implemented accordingly. As the work has already awarded consists of total 18 packages upto Udandapur, the Telengana State has committed to substantial expenditure and any stoppage would result in mounting time overruns and cost escalation, besides depriving the people of the State of Telengana, the benefit of drinking water being provisioned by PR LIS. It is also admitted that the ultimate object of the PR LIS is to implement irrigation infrastructure in Phase-II on foundation of the presently envisaged drinking water component under Phase-I. In the 15 additional affidavit, it is stated that the PR LIS has presently planned has no provision for irrigation and the irrigation requires planning and construction of a network of canals originating from each proposed reservoir to take water to the surrounding villages. The schematic diagram of PR LIS clearly establishes that there are no such distributor ayacut branch canals envisaged nor a proposed to be constructed. The PR LIS, therefore, does not presently and as of now falls under the category of Entry 1(c) of the Schedule to the EIA Notification. Thus contending that the State of Telengana had sought for granting liberty to the project proponent to continue with the ongoing work subject to obtaining Environmental Clearance within the period of 06 months and directing not to commission the project without obtaining Environmental Clearance.
26. The 6th respondent, who is the State of Andhra Pradesh, filed his counter affidavit contending that the 5th respondent, State of Telengana, was permitted to construct only the ongoing projects, namely, Kalwakurhty LIS and Nettempadu LIS which were commenced by the erstwhile State of Andhra Pradesh. Similarly, the present Andhra Pradesh was permitted to continue with the construction of the ongoing projects, namely, Telugu Ganga, Handri Niva Sujala Sravanthi, Galeru Nagari Sujala Sravanthi and Veligonda projects. As per the 11th Schedule of the Apex Council meeting undertaking of any other project for which KWTD-I and II did not make any allocation should be treated as a new project. Any new project need to be appraised by the Central Water Commission and KRMB and based on such appraisal, the Apex Council has to sanction the new project. Without following the mandatory procedure under the Act, the State of Telengana had issued G.O. Ms. No. 105 to proceed with the PR LIS from foreshore of Srisailam Reservoir to create irrigation for 12.3 lakh of new ayacut and also to meet the drinking water needs.
27. The State of Andhra Pradesh also had stated that since PR LIS is falling under Category „A‟ it is obliged to comply with the mandates of the notification. Accordingly, the PR LIS project requires Environmental Clearance being a new project and for irrigation purpose. It is alleged that only to avoid the four stages of screening, scoping, public consultation and appraisal, the State of Telengana has not proceeded to obtain Environmental Clearance. Since, the PR LIS and the Dindi LIS projects are new projects without any allocation by KWDT-I and II they cannot be proceeded with. The counter also mentioned about the O.A. No. 273 of 2016 filed by one Mr. Harshavardhan challenging the unilateral actions of 16 the 5th respondent in proceeding with the construction of PR LIS without obtaining mandatory prior Environmental Clearance. The 5th respondent also had given an undertaking before this Tribunal that it will proceed with the project only to the extent of the drinking water component and it will withdraw its application for Environmental Clearance submitted before the MoEF&CC. Later the said O. A. No. 273 of 2016 was dismissed as withdrawn on 22.07.2019. The State of Telengana also had submitted a proposal for Environmental Clearance on 04.09.2017. The said proposal was accepted on 13.09.2017 and was considered in the 8 th meeting of EAC on 22.09.2017. The 2nd respondent had issued the ToR on 11.10.2017 and additional ToR was also issued for Phase-I. An Executive Summary in respect of PR LIS to the 2nd respondent was also submitted. From Executive Summary, it is clear that in Phase-I of PR LIS it is proposed to construct approach channels, open canals, tunnels, pump houses, reservoirs with total storage capacity of 67.97 TMC to conduct water through various stages of lift and storing it for beneficial uses i.e., drinking, industrial and irrigation. Hence, it is contended that under the guise of drinking water, the State of Telengana is executing major part of the irrigation project misleading the MoEF&CC. It is specifically pointed out that the pre-feasibility report of the PR LIS shows that Phase-I involves construction of six major reservoirs, canals, tunnels and lifts disproportionate to limited drinking water requirement which can be carried in a pipeline. Hence it is pointed out that the Phase-I of PR LIS includes the infrastructure necessary for irrigation which mandatorily requires prior Environmental Clearance which is offending the environment in the State of Telengana. When the Phase-I construction of PR LIS is only to meet the meagre demand of 6.10 TMC for drinking water needs as per the project notes filed before the KWDT-II, the State of Telengana is completing the entire PR LIS project including irrigation demands without obtaining prior Environmental Clearance as mandated under the EIA Notification. It is also mentioned that not every drinking project does not require Environmental Clearance, particularly, when the 5th respondent is creating a huge infrastructure for irrigation and simultaneously offending hydrological, geological, structural, climatological factors of environment in the State of Telengana by expending the public money.
28. The 6th respondent further stated that the drinking needs of the State of Telengana are met through „Mission Bhagiratha‟ utilizing a quantity of 23.4 TMC water in Krishna basin. The present ingenious attempt by the 5 th respondent is with an oblique motive to complete the construction of the 17 entire PR LIS under the guise of meeting the drinking water necessity without obtaining prior Environmental Clearance. The 6th respondent further alleged that the State of Telengana had obtained Forest Clearance from the MoEF&CC on 25.01.2019 which was only permission to deforest the proposed land for pre-construction works and not for actual construction of the project. However, the PR LIS has been executed without any prior Environmental Clearances and the Construction of the project is causing air, water, noise, soil, land pollution and causing adverse impact on biodiversity, wildlife and socio-economic status. The State of Andhra Pradesh also pointed out that the PR LIS is going through the Amrabad Tiger Reserve and the eco-sensitive zone is very near to the Anjanagiri reservoir. The MoEF&CC while granting the in-principle approval on 03.04.2018 did not consider the sensitive wildlife areas which were recognised while sanctioning the Environmental Clearance to SLBC.
29. The 6th respondent also reiterated that Chenchu Tribes in the sensitive areas are affected because of not following the special procedure. The 6 th respondent also complained that no public hearing was conducted for Phase-I as the 5th respondent had assumed that no such public hearing to be conducted for Phase-I which is intended for only drinking water. Even in Phase-I, the 5th respondent is building a substantial infrastructure required for irrigation component of Phase-II and not just for drinking water alone and the ToR is very clear and does not distinguish between Phase-I and Phase-II. Further, it is pointed out that the ToR indicates the entire 90 TMC and it does not say that it is only for Phase-II. In fact Phase-II is only a minor component of execution of distributor canals from the reservoirs. On the above aspects the 6th respondent prayed for restraining the 5th respondent, State of Telengana from proceeding with PR LIS without obtaining the Environmental Clearance as mandated under the EIA Notification. The 6th respondent also highlighted the environmental impact caused by the construction made by the 5 th respondent on air, water, land, biological environment and also the socio- economic environment. The 6th respondent further prayed for a comprehensive assessment of the damage caused to the environment considering the ToR, additional ToR and also in respect of the above mentioned aspects.
O.A. No. 212 of 202130. The State of Andhra Pradesh as an applicant has sought for a declaration that the unauthorised construction of Dindi LIS without prior 18 Environmental Clearance as mandated under EIA Notification, 2006 is contrary to the mandatory requirements and appraisal by the Central Water Commission (CWC) as mandated under the provisions of Section 84(3)(ii) and 85(8)(d) of the 11th Schedule of Act 6 of 2014 by the project proponent, namely, the State of Telengana and to declare the inaction of the respondents 1 to 4 in taking action against the 5th respondent against the unauthorised project without any appraisal by the 4th respondent and CWC and sanction by the Apex Council. This application is filed by the State of Andhra Pradesh to protect the interest of the farmers and inhabitants of Rayalaseema region, Prakasam, Guntur and Krishna District being the lower riparian State against the unilateral construction of Dindi LIS in discriminatorily undertaken by the 5th respondent, project proponent, proposing to lift huge quantity of surplus water of 30 TMC to irrigate about 3.68 lakh acres from Srisailam Reservoir which seriously impact the lower riparian rights of the existing farmers.
31. The applicant has stated that there are several disputes pending before various forums in respect of water sharing. The Dindi LIS scheme involved an irrigation component and also a drinking water component. As it involves irrigation component, Environmental Clearance is mandatory under EIA Notification, 2006. All the other grounds raised by the applicant in O.A. No. 148 of 2021 were raised by the applicant in this O.A. also. It is specifically pointed out that allocation made by the River Water Tribunal shall remain the same and that the State of Telengana as well as the State of Andhra Pradesh shall not take up new projects without obtaining the permission from the Apex Council on river water resources which will consider the said proposal after it was appraised by the CWC. Further, in view of the reorganisation of the States, the projects of the Srisailam Left Bank Canal (SLBC), Kalwakurthy LIS and Nettampadu LIS were given to the 5th respondent project proponent and the applicant was given Handri Niva Sujala Sravanti (HNSS), Telugu Ganga Project, Galeru Nagari Sujala Sravanti (GNSS) and Veligonda. Therefore, the 5th respondent has got no right to undertake any new project without following the above procedure.
32. The Dindi LIS being a new scheme, the 5th respondent is not allowed to take it up. However, the 5th respondent has unilaterally proceeded to take up this project based on flood flows to the extent of 30 TMC to be withdrawn within 60 days of flood season with a cost of Rs.6,190 crores from the foreshore of Srisailam Reservoir by its order in G.O. Ms. No. 107 dated 11.06.2015. The above project is allegedly classified under Category 19 „A‟ project, shall obtain the Environmental Clearance consisting of the process of scoping, screening, public consultation and appraisal. This applicant also has made all those objections raised by the applicant in O.A. No. 148 of 2021. In addition to the other objections, it is stated that some of the farmers of the applicant-State had filed W.P. No. 116 of 2016 before the Hon‟ble Supreme Court seeking to restrain the 5th respondent, project proponent from proceeding with the construction of Dindi LIS and directing the respondents 1, 4 and CWC to conduct appraisal of the projects as mandated in Act 6 of 2014. While disposing of the Writ Petition on 20.07.2016, the Hon‟ble Supreme had directed the convening of the meeting of the Apex Council as expeditiously as possible. The Apex Council shall examine the issues with reference to the construction of PR LIS and Dindi LIS after affording an opportunity of hearing to the concerned State parties.
33. In this regard, the 1st respondent had convened a meeting wherein it was stated that PR LIS and Dindi LIS are not among the 06 projects mentioned in the 11th Schedule of Act 6 of 2014 and had not been appraised and recommended by KRMB. The 5th respondent had given a misleading undertaking as there is no allocation made by the KWDT-I and II for the proposed utilisation under Dindi LIS. The unauthorised construction undertaken for Dindi LIS by the 5th respondent, project proponent is contrary to the procedure contemplated and it has no right to proceed with the construction which is in fact illegal arbitrary and unjust. Even otherwise, considering the irrigation potential in the project the same can be undertaken only after securing prior Environmental Clearance. Thus alleging the above O.A. 212 of 2021 is filed.
34. The Ministry of Environment, Forests and Climate Change (MoEF&CC), who is the 2nd respondent, has filed their counter affidavit. It is categorically stated that this project is coming under Category „A‟ and this project had never applied for the grant of ToR or Environmental Clearance meaning that the proposal of the said project was never submitted for consideration by the MoEF&CC. In this regard, the Integrated Regional Office, Vijayawada had provided documents pertaining to the said project. The perusal of the same would go to show that the Dindi LIS is undertaken by the 5th respondent for providing drinking water to the most severely affected areas by Fluorosis and irrigation facilities to drought prone areas of Nalgonda District and Mahaboobnagar District by lifting the flood water from the foreshore of Srisailam Reservoir to Dindi 20 Reservoir at 0.5 TMC per day for 60 days to a quantum of 30 TMC. The project proponent was accorded administrative approval to the Dindi LIS vide G.O. Ms. No. 107 I & CAD (Project-I) on 11.06.2015. The culturable command area of Dindi LIS is 1,37,996 ha. As it exceeds 50,000 ha., it falls under Category „A‟ necessitating the Environmental Clearance.
35. The 5th respondent had commenced the construction of the project in question based on the administrative approval granted by Irrigation and CAD Department of State of Telengana. Since, the project is more than 50,000 ha., and it has been under construction without prior Environmental Clearance, it is sheer violation of the EIA Notification, 2006. The 2nd respondent has further stated that the project proponent was granted the Terms of Reference only with respect to the PR LIS on 11.10.2017. So far as Dindi LIS is concerned, project proposal was not submitted for grant of ToR or grant of Environmental Clearance. The available details with the MoEF&CC would state that the proposal was presented only for the grant of ToR in construction of PR LIS as a standalone project having no reference to the Dindi LIS. It is mentioned further that Dindi LIS even in the pre-feasibility report submitted by the project proponent for grant of ToR for PR LIS does find the place. Thus MoEF&CC has categorically contended that even for PR LIS after the ToR was issued the project proponent did not proceed with the same by submitting the ToR. So far as the Dindi LIS is concerned, no project proposal is submitted nor does it find place in the PR LIS project. Therefore, even without project proposal, without obtaining Environmental Clearance admittedly, the project proponent had commenced the construction of Dindi LIS which is violative of the EIA Notification, 2006 and which would attract penal action. Accordingly, this respondent also had issued a show cause notice on 07.01.2022 under Section 5 of the Environment (Protection) Act, 1986 on account of initiating Dindi LIS without prior Environmental Clearance.
36. The respondent nos. 1 and 4, namely, Ministry of Jal Shakti and Krishna River Management Board (KRMB) have filed their counter affidavit. The KRMB has stated that as per office records the erstwhile Government of Andhra Pradesh, I&CAD Department by G.O. Ms. No. 159 dated 07.07.2007 had accorded approval to the estimate for an amount of Rs. 130 lakh for providing lift from proposed Dindi Balancing Reservoir of SLBC tunnel scheme to feed existing Dindi Reservoir for investigation, preparation of DPR of proposed Lift Irrigation Scheme from Dindi balancing 21 reservoir. Accordingly, an Administrative approval was also granted. As per the administrative approval the Dindi LIS has to provide drinking water to the most severely affected areas by Flourosis and irrigation facilities to the drought prone areas like Deverakonda and Munugode constituencies of Nalgonda Districts and some parts of Achampet and Kalwakurthy constituencies of Mahaboobnagar by lifting the flood water from the foreshore of Srisailam Reservoir at 0.5 TMC per day for 60 days to a quantum of 30 TMC.
37. This respondent also referred to the Inter-State agreements, namely, Bachawat Tribunal Award (KWDT-I). As per the Bachawat, 75% of dependable flow of River Krishna upto Vijayawada as 2,060 TMC and made final State-wise allocations duly protecting the existing uses of these States. The KWDT-I held that the allocations to the party-States are enbloc. As per the Bachawat report under KWDT-I, Andhra Pradesh as combined State is having a share of 811 TMC of water at 75% dependability.
38. The Hon‟ble Supreme Court had directed the Apex Council meeting to be convened to decide the issue of water sharing. As regards the working arrangement of water sharing, it was decided that Government of India will make efforts to expedite finalization of KWDT-II award. In the meanwhile, the State of Andhra Pradesh had requested the Ministry of Jal Shakti to advise the State of Telengana to stop any new projects. The KRMB also vide letter dated 30.05.2020 requested the State of Telengana not to go ahead with the Dindi LIS till the project is appraised by KRMB/CWC and sanction of Apex Council is obtained. Once again on 04.06.2020, the KRMB had insisted the State of Telengana not to go ahead with the project till the Detailed Project Report is submitted and appraised by the Board/CWC and sanctioned by the Apex Council. On 06.10.2020, when the second Apex Council was held both the State of Andhra Pradesh and State of Telengana were directed to submit the DPRs of new projects to the Board immediately for appraisal and subsequent sanction by the Apex Council. Both the States were also directed to stop any ongoing projects without any approvals. The project Dindi LIS in Telengana was listed as major ongoing unapproved and non-operational in the Gazette. The DPR is required to be approved by the Apex Council within 06 months after the publication of the notification. However, the DPR has not been received in respect of Dindi LIS so far for the appraisal of the KRMB.
2239. The 5th respondent, project proponent, which is the State of Telengana, has filed his reply through Special Chief Secretary, Irrigation and CAD Department. The State of Telengana had submitted that Dindi LIS was to provide water for industrial use and drinking water facility to the most severely affected areas of Nalgonda, Rangareddy, Yadadri, Bhuvanagiri and Nagarkurnool Districts which are the worst drought prone area and distressed areas in the State of Telengana. As per a study conducted in June, 2016, the fluoride in water found in Nalgonda District was more than twice the permissible limit for drinking water resulting in migration of large part of the population to different parts of the country. In order to redress the said situation, Dindi LIS was taken up for alleviating the misery of these drought prone areas, in order to benefit 224 villages. In addition to the drinking water facility, 3.41 lakh acres of agricultural land will also be supplied water after necessary approvals.
40. The Dindi LIS being an important scheme for the State of Telengana is deemed to be a welfare scheme providing basic amenities of water to the people of the State of Telengana. As per Dindi LIS lifting of flood water to 0.5 TMC per day for 60 days to the quantum of 30 TMC from foreshore of Veeranjaneya Reservoir at Yedula, Gopalpeta, Nagar Kurnool District and storing the water in 09 reservoirs. These 09 reservoirs and canals/tunnels between each reservoir are proposed for taking the water forward through gravity. The details of proposed main canal and reservoirs are furnished in the reply affidavit. It is stated that the water will be drawn from the Veeranjaneya Reservoir at Yedula which would be flood water drawn during the flood season and will not interrupt the flow of water of the Krishna River. The object of Dindi LIS is to implement an irrigation infrastructure in later phase on foundation of the presently envisaged drinking water component under the present phase. The State of Telengana had categorically stated that presently it has not planned for irrigation and there is no provision for the same as irrigation requires planning and construction of a network of canals originating from each proposed reservoir to take the water to the surrounding villages. Since the schematic diagram of Dindi LIS clearly establishes that there are no such distributor ayacut, branch canals neither envisaged nor proposed to be constructed. As far as irrigation is concerned, it is sated that it will be carried out at a later stage and Dindi LIS does not involve construction of dams nor there is any proposal for production of electricity.
2341. It is reiterated by the 5th respondent that the intention of Dindi LIS under Phase-I is to provide drinking water and water for industrial use only. Distributory network facilities for irrigation are planned only in the Phase- II to be commenced after the plan for the present stage is completed. Hence, Dindi LIS has been commenced only to alleviate the misery of the drought prone areas of the few districts in the State of Telengana. However, it is stated that initially it is for the drinking and industrial purpose and later for irrigation as well. For the present, however, the reservoirs and the connecting canals are meant for drinking and industrial purpose and the scheme is presently implemented accordingly.
42. In the rejoinder filed by the State of Andhra Pradesh, it is stated that the 5th respondent had undertaken Mission Bhagiratha vide G.O.Rt.No. 885 dated 30.10.2017. The said scheme is completed including the 05 districts mentioned above and has been providing drinking water for every household throughout the State by utilising 23.44 TMC of Krishna water and 32.58 TMC of Godavari Water totalling 56.02 TMC. It is further pointed out that in Nalgonda District there are several reservoirs i.e. Udayasamudram, NSP Tailpond, Yellore Reservoir etc., which are catering both for drinking as well as irrigation purposes. The supply from the above referred reservoirs is more than sufficient for the present water drinking requirement of the fluoride affected area. The State of Andhra Pradesh has pointed out that in Nalgonda and Mahaboobnagar districts, the ayacut being served under existing projects as allocated by KWDT-II at 75% dependability or about 5.05 lakh acres and 4.1 lakh acres respectively. In addition the 5th respondent also had constructed new projects at Nettempadu LIS and Kalwakurthy LIS with an ayacut of 2.28 lakh acres and 3.65 lakh acres respectively.
43. Further, the State of Telengana also has planned new projects without any allocation, namely, PR LIS serving 30,000 acres and Dindi LIS serving around 31 lakh acres in Nalgonda and 31,550 acres in Mahaboobnagar Districts. Therefore, it is contended that the allegations that there is tremendous shortage of drinking water and foam water in these districts, as they are affected by fluoride are all misconceived as the people are not dependent on ground water and they are getting potable and protected water for their drinking water requirements. Since, the Joint Committee appointed in O.A. No. 148 of 2021 has already found that the Dindi LIS project is also under construction, it is alleged by the State of Andhra Pradesh that the project itself is violative of all the conditions. Hence, the 24 State of Andhra Pradesh contended that the action of the 5 th respondent is high handed without obtaining appropriate Environmental Clearance for both the projects and hence sought for stoppage of the construction forthwith.
44. Based on the above allegations and the counter affidavit filed by the applicants and the respondents this Tribunal had appointed a Joint Committee consisting of a Senior Officer from MoEF&CC, Senior Scientist from Central Pollution Control Board, The District Collector, Mahaboob Nagar, The Director, Geology and Mining Department and a Senior Scientist from NEERI to inspect the area in question and submit a factual as well as action taken report in case of any violations found.
45. The allegations in both the Original Application Nos. 148 of 2021 and 212 of 2021 are identical in nature. In Dindi LIS canals are proposed to be improved and extended for providing additional ayacut of 10,000 acres and 8,000 acres for the left and right channel respectively. Hence, the pumping system is admittedly common for both the PR LIS and Dindi LIS. The issues that arise for determination are also common to both the Original Applications which are as follows:
(i) Weather the project proponent had committed violation of the provisions of the EIA Notification, 2006 by not conducting any Environment Impact Assessment Study and preparing Environmental Management Plan and damage caused to the environment on account of the same?
(ii) Whether the present project is only for drinking water purpose and therefore does not require prior Environmental Clearance?
(iii) Whether the project was a composite one both for drinking and irrigation water purpose which requires a valid Environmental Clearance?
(iv) Whether the project proponent had violated the regulations and commenced the construction without obtaining proper approvals?
46. The Joint Committee also had filed its report on 30.09.2021 based on the above questions. The Joint Committee stated about the components of the PR LIS which are as follows:
"3. Components of the PR Lift Irrigation Scheme The Palamuru Rangagreedy Lift Irrigaton Scheme, as reported by the project proponent is envisaged to lift 90 TMC of flood water to enroute 1226 villages in 70 mandals, Hyderabad city, irrigation facilities to 12.30 lakh acres and industrial use in Nagarkurnool, Mahabub Nagar, Narayanpet, Vikrabad, 25 Rangareddy and Nalgonda districts. The Government of Telengana have accorded the administrative approval for Rs. 35,200cr. The water is proposed to be lifted in 5(five) stages through pumping stations from elevation+240.00m from the foreshore of Srisailam reservoir at Yellur village, Kollapur Mandal to the elevation +670.00m at K.P. Lakhsmidevipalli village, Kondurg mandal.
This project comprises of pumping station, tunnels and storage reservoirs for irrigation, drinking and industrial use.
The stages of the Lift Irrigation Scheme are:
Stage-I: Anjanagiri Reservoir & Pump House at Narlapur Village. This Lift-I comprises of 8 (eight) pumps of 145 MW each (8x145 MW) with pumping capacity of 85 cumecs each to lift to a head of 104 m. Live capacity of the reservoir is 8.54 TMC.
Stage-II: Veeranjaneya Reservoir & Pump House at Yedula Village. This Lift-II comprises of 09(nine) pumps of 145 MW each (9x145 MW) with pumping capacity of 75 cumecs each to lift to a head of 124m. Live capacity of the reservoir is 5.91 TMC.
Stage-III: Venkatadri Reservoir & Pump House at Vattem village. This Lift-III comprises of 9 (nine) pumps of 145 MW each (9x145 MW) with pumping capacity of 75 cumecs each to lift to a head of 121 m. Live capacity of the reservoir is 16.40 TMC.
Stage-IV: Kurumurthiraya Reservoir & Pump House at Karivena Village. This Lift-IV comprises of 5 (five) pumps of 145 MW each (5x145 MW) with pumping capacity of 75 cumecs each to lift to a head of 122m. Live capacity of the reservoir is 18.49 TMC.
Stage-V: Udandapur Reservoir & Pump House at Udandapur village. This Lift- V comprises of 3 (three) pumps of 75 MW each (3x75 MW) with pumping capacity of 55 cumecs each to lift to a head of 87.50m. Live capacity of the reservoir is 15.76 TMC."
47. Based on the above, the Joint Committee members visited the PR LIS reservoirs of Narlapur, Yedula, Vattem, Karivona and Uddandapur on 19.09.2021 and 16.09.2021. Again the Committee met in KRMB office on 20.09.2021 and deliberated on this matter and submitted a report. The Committee is of the view that the PR LIS is conceived as an irrigation scheme to lift 90 TMC of flood water in 60 days from the foreshore of Srisailam Reservoir situated on Krishna River. At the location of the foreshore, 08 pumps of discharge capacity of 85 cumecs were envisaged totalling to cumecs which is equivalent to 2.07 TMC ft per day in 60 days, it will amount to 120 TMC instead of the 90 TMC already mentioned. On probing further it came to light that the additional 30 TMC capacity is envisaged to supplement the nearby Dindi project. At this location which is called Narlapur Reservoir site, excavation of twin tunnel is under progress and the muck excavated from the tunnel is dumped nearby without any environment management plan. It was explained by the project proponent that the muck shall be utilised as construction material and hence the dump is temporary. Similar situation is found in all other reservoir sites, namely, Yedula, Vattem, Karivena and Uddandapur.
48. The PR LIS was granted ToR on 11.10.2017 for preparation of EIA and EMP report and the MoEF&CC accorded fresh clearance for pre-
26construction activities at the proposed site as per the provisions of the EIA Notification, 2006. The ToR had specifically mentioned that "it was noted that the scheme in its first phase envisaged lifting of 90 TMC of flood water in 60 days during the flood season from the foreshore of the Srisailam Reservoir on Krishna River through five separate stages to provide drinking water facilities". The Joint Committee had ascertained that the drinking water requirement for the enroute villages is only 7.15 TMC ft whereas 90 TMC ft is for the entire project consisting of majority irrigation, drinking water and industrial requirements. Hence, the Committee had opined that head works being constructed are for creating 90 TMC capacity for the entire project in which drinking water is a minor component.
49. The Committee had further noted the following:
(i) The TOR was issued by the MoEF&CC to the project on 11.10.2017 for carrying out pre-construction activities. Whereas it was found that the full scale construction was going on which is violative of the environmental laws. In this regard, it is pertinent to note that the scheme in its first phase envisaged lifting of 90 TMC of flood water in 60 days during the flood season from the foreshore of Srilsailam Reservoir through 05 separate stages to provide drinking water facility to the enroute 1428 Villages in 74 mandals. The Culturable command area is 497,976 ha., and it was mentioned that there is no displacement as no habitation is coming under the submergence.
Based on the recommendations of the EAC, the MoEF&CC granted clearance for pre-construction activities at the proposed site with specific conditions viz., the consultant engaged for preparation of EIA/EMP report has to be registered with Quality Council of India/NABET under the scheme of accreditation and registration of MoEF&CC. The consultant shall include a certificate in EIA/EMP report regarding portion of the EIA required by them and the data provided by other organisations including status of approval of such organisations. After discussing the issues in the public hearing and consultations, the said issue have to be incorporated in the EIA/EMP report. Final EIA/EMP report should be submitted to the MoEF&CC for clearance after incorporating these issues before expiry of the validity of the ToR. In the event of change in the scope of the project such as capacity enhancement, change in submergence etc., fresh scoping clearance has to be obtained by the project proponent. The 27 Final EIA/EMP report must contain an index showing the details of compliance of all ToR conditions. Without the index EIA/EMP report will not be accepted. In the event, the validity has to be extended necessary application has to be submitted to the regulatory authority before expire of the validity period with updated form-I based on proper justification.
(ii) This is regarding the violation of the EIA Notification, 2006. It is not in dispute that the present project requires a prior Environmental Clearance as it falls under item i(c)(ii) of the EIA Notification, 2006. As the project envisaged a command area of 4,97,976 ha., prior Environmental Clearance has to be accorded at the centre level. The pre-construction activities permitted under the ToR were based on the preliminary report of the EIA/EMP. However, the District Collector, Mahahbubnagar, Telengana and Assistant Director, Mines and Geology Department, Mahahbubnagar, who were also part of the Joint Committee also opined that the ongoing construction activities are for only drinking water purpose. Whereas the Committee had found that without prior Environmental Clearance, the project proponent cannot continue the project.
(iii) The PR LIS is conceived as an irrigation scheme to lift 90 TMC of water out of which drinking water component is only 7.15 TMC but it is alleged that the construction activities are being carried out for creating the full 90 TMC capacity. As mentioned supra, excepting the District Collector and the Assistant Director, Mining and Geology, who had stated that the construction activity was confined only for drinking water facility, whereas the construction is for creating the full 90 TMC capacity.
(iv) The Committee also found that the people have been displaced due to the project in violation of the undertaking given and also assessed the Environmental Compensation. It had further suggested the remedial measures to restore the damage caused to the environment and also had recommended the project proponent to obtain Environmental Clearance from MoEF&CC and other statutory post-facto clearances from the concerned departments and organisations.
50. The State of Andhra Pradesh, who is the 6th respondent who is represented by Learned Advocate General, had vehemently contended that the PR LIS project itself is intended for irrigation purpose and not an exclusive drinking water project. It is also being clearly found by the Joint 28 Committee appointed by this Tribunal that the State of Telengana is constructing the PR LIS without obtaining prior Environmental Clearance contrary to the ToR issued only for pre-construction activity. The phase-I of the PR LIS included irrigation component since drinking water component is only 7.15 TMC as per the report of the Joint Committee. It is not in dispute that the State of Telengana does not have prior Environmental Clearance which is contrary to the EIA Notification, 2006. Secondly, the project proponent had exceeded its Terms of Reference which permitted only for pre-construction activities but proceeding with the entire project.
51. Similarly, the State of Telengana had filed their objections to the report of the Committee. In the objections, it is stated that the PR LIS is originally conceived for dual purpose, namely, for the purpose of providing drinking water to various districts and Hyderabad city and to supply water for industrial purposes. Though, the project had an irrigation component, it is implemented to transport and store water only for drinking for human consumption in the first phase, as irrigation requires planning and construction of network of canals originating from the proposed reservoir. Infrastructure enhancement such as canals which would be required for the purpose of irrigation requiring prior Environmental Clearance which according to the project proponent would be carried out after obtaining prior Environmental Clearance only. The project proponent further submitted that presently it is in the stage of public hearing after which the proposal will be ready for submission. In this regard, the project proponent also referred to the orders of the Tribunal passed in O.A. No. 273 of 2016 filed by Mr. B. Harsh Vardhan on 17.02.2017 which is as follows:
"On behalf of respondent nos. 2 and 3, the Chief Engineer, Palamuru Rangareddy Lift Irrigation Scheme filed an affidavit stating that the Government of Telangana would be withdrawing the application submitted for Environmental Clearance (EC) before the Ministry of Environment, Forests and Climate Change (MoEF&CC) on 11.01.2017. The affidavit also asserts that the State of Telengana would be implementing the dispute project only with regard to the supply of drinking water and not for irrigation. Learned Counsel appearing for the State of Telengana including the Additional Advocate General, in the presence of Sri Joshi, the Special Chief Secretary present in Court submitted that the disputed project as such will not be proceeded with and the State of Telengana undertakes that they will not proceed with the irrigation part of the project without obtaining prior EC. It is also submitted that the project now proposed to be proceeded with is confined to the supply of drinking water by taking water from Srisailam Reservoir through the Reservoirs in between which finally reaches K.P. Lakshmidevipalli Reservoir.
Learned Counsel appearing for the applicant submitted that the project is nothing less than the original project as is clear from the DPR and therefore there should be an order directing the State not to proceed with the work without prior EC.29
In view of the submission made on behalf of the State of Telengana and the affidavit filed, we do not find it in the interest of justice, to stop the work of the project with regard to the supply of drinking water. It is made clear that no part of the project, with regard to irrigation shall be proceeded with, without prior Environmental Clearance.
Learned Counsel appearing for the applicant, also submitted that there is a separate department namely Rural Water Supply and Sanitation Department for supply of drinking water and the disputed project is envisaged not by that department but by the irrigation Department and therefore by naming the irrigation project as drinking water project there will be no change in the ambit and scope of the project and the affidavits is not filed by the Rural Water Supply and Sanitation Department and other drinking water projects were already envisaged by the State of Telengana for water supply in the same area.
Learned Counsel appearing for the respondents seeks time to file proper affidavit from the concerned department. Let the affidavit be filed within a period of two weeks.
Learned Counsel appearing for respondent nos. 2 and 3 including the Additional Advocate General submitted that the tender invited for the irrigation part of the project will not be proceeded with. The submission is recorded.
List the matter on 15.03.2017."
52. In the objections, it is mentioned that it is not necessary to have an EMP as the muck excavated from the proposed excavation of tunnels is being dumped within the project site and the same will be utilised for manufacturing sand, revetment and concrete purposes. It is stated further that no portion of the excavated muck will be left on the ground once the excavation work is completed. Therefore, the project proponent contended that there is no damage to the environment as stated by the Joint Committee.
53. The next objection, regarding the violation of Terms of Reference, addressed by the project proponent is that ToR has nothing to do with the works being executed at present which relates to Phase-I works, namely, the drinking water purpose. Therefore, the allegation that the project proponent had taken the entire construction on ground when what was permitted under the ToR was only the pre-construction works is also denied by the project proponent.
54. The project proponent had faulted the report of the Joint Committee stating that the PR LIS scheme itself is not only for the purpose of drinking water, it is also for the purpose of supplying water for irrigation purposes. The work at present being executed was exclusively meant for drinking water purpose i.e. for lifting 7.15 TMC. Hence, it is contended that the project proponent had conceived the PR LIS as dual purpose for the purpose of providing drinking and irrigation to tackle the major problem of fluoride by supplying potable water from River Krishna.
3055. Regarding the displacement of the people, the families affected by the project are being compensated as per provisions of the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013. It is also stated that the said displacement has caused only with regard to the construction of the reservoirs which are meant for drinking purpose and in so far as irrigation component is concerned, there is no displacement. Regarding the capacity of the reservoir built for 64.87 TMC the project proponent had stated that though the water requirement is only 7.15 TMC the water stored will be utilised for drinking water purpose in drought periods in as much as flood is the rare phenomenon, therefore, drawl of water and storing in these reservoirs only once in four years. Thus the report of the Joint Committee was objected to by the project proponent.
56. On the above facts, it has to be considered whether the PR LIS and Dindi LIS are being constructed by the project proponent in violation of the EIA Notification, 2006 without obtaining the prior Environmental Clearance. It is not in dispute that the PR LIS is a composite scheme including both irrigation as well as drinking water supply to the people of Telengana. The Learned Counsel appearing for the applicant would submit that they are not against the project intended for drinking water supply. It is only the irrigation project which is being constructed under the guise of drinking water without a valid Environmental Clearance. Hence he submitted that the application is filed both under Section 14 as well as under Section 15 of the National Green Tribunal Act, 2010.
57. In this regard, it would be pertinent to advert to the scope of the PR LIS. The said scheme envisages to create an irrigation potential for an ayacut of 12.30 lakh acres in upland areas of Mahabubnagar District, Rangareddy District and Nalgonda District and drinking water requirement to enroute villages, GHMC and industrial water requirement by lifting 90 TMC of water from Srisailam Reservoir at 1.50 TMC per day from foreshore of Srisailam Reservoir in 60 days during the floods. The River Krishna is flowing through Mahabubnagar District but it flows at an elevation of about +250.00 MSL through the district whereas the substantial command area lies above +500.0 MSL. Subsequent to the States Reorganisation in 1956, the proposal to irrigate those areas by gravity by way of extension of canals were not pursued. With the result, the Telengana areas could not be irrigated for all these years by gravity. Hence creating irrigation potential is only through lift irrigation. The Mahabubnagar District, which has vast culturable command area but is drought prone, necessitated this 31 project. Hence in G.O. Ms. No.72 Irrigation and CAD Department dated 08.08.2013 an administrative approval was accorded for conducting a survey, prepare DPR for the above said project. As referred in the pleadings it consists of 05 stages of lifts from foreshore of Srisailam Reservoir. The Government had accorded approval for conversion of surface pumping station to underground pumping station of package no. 1 of the PR LIS scheme as an alternative proposal to avoid delay in obtaining permission from the Forest Department.
58. Similarly, the other stages of pumping were also drawn. The reservoir would consist of one main canal. The left main canal takes off from foreshore of Udandapur Reservoir which has a command ayacut of villages under Kosgi, Doulathabad, Kondangal and Maddur Mandals of Mahabubnagar and also few mandals of Rangareddy District. The common canal is designed to irrigate an ayacut of about four and a half acres.
59. Similarly, the scope of the Dindi LIS envisages providing drinking water to the severely fluoride-affected areas and irrigation facilities to an extent of 3,41,500 acres of drought prone areas of Deverakonda and Munugodu constituencies of Nalgonda Districts and parts of AChampet and Kalwakurthy constituencies of Mahabubnagar District. This scheme involves lifting of 30 TMC of water from the foreshore of Srisailam Reservoir to existing Dindi Reservoir at 0.5 TMC per day for 60 days in two stages. This scheme was contemplated because of the upland area and the rainfall being scanty and erratic. Besides the ground water is far below and the level of fluoride contamination is very high. Therefore, it is unfit for irrigation and drinking purpose.
60. This scheme also envisages lifting of water from +250.00 m to +445.00 m from the foreshore of Srisailam Reservoir, in two stages from a common pumping system for both PR LIS and Dindi LIS. The Dindi Reservoir existing left and right canals are proposed to be improved and extended for providing additional ayacut of 10,000 acres and 8,000 acres respectively. This project also requires 30 TMC of water to irrigate 3.415 lakh acres apart from providing drinking water supply to enroute villages by way of lift from the foreshore of existing Srisailam Reservoir.
61. In this regard, the State of Andhra Pradesh had taken this issue to the Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India by letter dated 16.03.2018 complaining that the 32 State of Telengana is unilaterally proceeding with the construction of the above projects on River Krishna without the approval of the Apex Council and KRMB as per Section 84 (iii) (2) and 85(8) (d) of the Andhra Pradesh Reorganisation Act, 2014 and requesting for convening Apex Council meeting to discuss the matter and safeguard the interest of State of Andhra Pradesh. Again on 02.04.2018, another letter was sent to the Ministry of Water Resources complaining about the new project on the River Krishna taken up by the State of Telengana without clearance/approval from KRMB, CWC and Apex Council. On 30.05.2020, the Ministry of Jal Shakti, Government of India, Department of Water Resources had addressed to the Principal Secretary, Government of Telengana as under:
(i) Since, no new projects can be taken up on Krishna River without obtaining sanction from the Apex Council on river water resources constituted as per Andhra Pradesh Reorganisation Act (APRA), 2014.
The action of the Government of Telengana taking projects on Krishna River without its appraisal by KRMB and without sanction from Apex Council as mentioned in the G.O AP letter dated 15.05.2020 is violative of Section 84 and Para- 7 of the 11th Schedule of APRA, 2014. Hence, Government of Telengana shall not go ahead with new projects till the projects are appraised by KRMB/CWC and sanction of Apex Council is obtained.
(ii) Further a meeting of the Board will be convened immediately to deliberate the matter."
62. Accordingly, in the 12th meeting of KRMB held on 04.06.2020, reiterating the earlier directive given to the State of Telengana. Based on the direction of the Ministry of Jal Shakti, Chairman directed the State of Telengana not to go ahead with the project till the DPR is submitted and appraised by the Board/CWC and sanctioned by the Apex Council considering the fact that the PR LIS and Dindi LIS are new projects.
63. These are two projects taken up as a composite one for irrigation and drinking water by the State of Telengana, namely, PR LIS and Dindi LIS. It is relevant to note that at least in respect of PR LIS which a standalone project a ToR was issued by the MoEF&C on 11.10.2017 and the pre- feasibility report of the PR LIS was also submitted by the project proponent. However, for Dindi LIS, there is no such application for prior Environmental Clearance as required by the EIA Notification, 2006. It has been admitted by the project proponent in the counter affidavit that it is constructing 09 reservoirs with a capacity of 25.81 TMC which would submerge an extent of 16,344.56 acres of land with bund length of 34.72 km. Thus such a massive construction of Dindi LIS requires prior Environmental Clearance as mandated by the EIA Notification, 2006. As stated supra, the ToR dated 11.10.2017 is only for PR LIS as a standalone 33 project and it did not include or mentioned the Dindi LIS project. Thus it is very clear that even without making an application the project proponent had started the unauthorised construction of Dindi LIS violating the EIA Notification dated 14.09.2006. The said aspect was also mentioned by the Joint Committee appointed by this Tribunal in Para-5 of its report.
64. Though even pending proceedings, an undertaking was given by the State of Telengana on 22.12.2021 before this Tribunal that no work would be proceeded with in PR LIS and Dindi LIS, now the work was being proceeded with by them in violation of the undertaking given before this Tribunal. In this regard, Learned Advocate General appearing for State of Andhra Pradesh had contended that the violating the undertaking given is an offence besides proceeding with the construction without Environmental Clearance is illegal. Therefore, he would submit that this is a classic example of fraud played not only on this Tribunal but on the relevant authorities, namely, KRMB, CWC and the Apex Council. Therefore, it was submitted that fraud vitiates all solemn acts. The Joint Committee report also has categorically held that the State of Telengana had violated all the norms.
65. During the course of the arguments, it was mentioned that almost 90% of the project work for both PR LIS and Dindi LIS are complete which are admittedly without ToR. Hence it was prayed that the „Precautionary Principle‟ needs to be invoked. Though, it has been argued by the State of Telengana that it is only for drinking water purpose there is a categorical admission in the counter that it is a composite scheme including both irrigation and drinking water purpose. It is not a case of the Telengana Government that what they have constructed so far is only the pre- construction activities but under the guise of pre-construction activities they have completed 90% of the project, thus violating the ToR issued on 11.10.2017. The case of the State of Andhra Pradesh and the applicant in O.A. No. 148 of 2021 is supported by the report of the Joint Committee which found all kinds of violations including the breach of ToR.
66. The State of Telengana has taken up the EIA study only in July, 2021 by which time the project is almost completed. Above all, there is no requirement of drinking water project for the above referred districts as the same is already met under the „Mission Bhagiratha‟ Scheme of Telengana Government utilising a quantity of 23.4 TMC of water in Krishna Basin. This fact is not specifically denied by State of Telengana. The above 34 fact is confirmed by the Act of Telengana State which envisaged lifting of 90 TMC of flood water in 60 days during the flood season from the foreshore of Srisailam Reservoir as it can be only for irrigation purpose which is evident from the fact that the EAC had directed the Telengana to do water availability analysis. In this regard, it is pertinent to state that in lift irrigation projects relying on flood waters, reservoirs are an integral and most important part of the irrigation project without which irrigation purpose cannot be served at all. Therefore, if the reservoirs are for irrigation purpose, the mandatory requirement of Environmental Clearance is attracted. The Learned Advocate General of State of Andhra Pradesh also stated that merely because the State of Telengana had constructed and completed 85 to 90 per cent of work, the same should not be allowed on equity as the violations are in utter disobedience of the various orders passed by the authorities including this Tribunal which are deliberate in nature.
67. From the above facts, it is evident that for the PR LIS scheme an application for obtaining Environmental Clearance was applied by the State of Telengana, ToR issued and permission to pre-construction activity was granted. Regarding Dindi LIS though it attracts an Environmental Clearance being a composite project with irrigation component but no such application was made by the State of Telengana. EIA Notification itself was brought to force for imposing certain restrictions and prohibitions on new projects or activities or on the expansion or modernisation of existing projects or activities based on their potential environmental impacts as indicated in the schedule to the notification.
68. A project that which should obtain Environmental Clearance but does not have one will be issued ToR to carry out an Environment Impact Assessment. The illegal project activities should be subjected to damage assessment, remedial plans and appraisal by expert panels at the Union and State Government levels depending on the scale of projects. If it is found during appraisal that the project though permissible is not environmentally sustainable, the relevant authorities will order a modification in its scope to make it environmentally sustainable. Upon appraisal if the project is not found fit to get a clearance it may also be demolished and closed.
69. EIA may be defined as „Alerting Decision Makers‟. EIA determines the environmental consequences of the projects so that those projects can be 35 modified to prevent environmental deterioration to avoid construction errors and to forestall economic losses caused by negative side-effects.
70. In the instant case, the project proponent, who is State of Telengana, is an artificial body and is deemed to be juridical entity. Even if the project is taken up by the State in the interest of the public it is required to obtain Environmental Clearance. When the goal of the Environment (Protection) Act, 1986 itself is to ensure the Sustainable Development and the guarantees Right to Life under Article 21 of the Constitution of India, the project proponent cannot be allowed to proceed with the project without Environmental Clearance.
71. Admittedly, the scope of the lift irrigation is to provide drinking and irrigation water facilities. The said drinking water facility is to be provided to1428 Villages in 74 mandals. The said activity if proceeded with without an Environmental Clearance it will lead to unscientific and unsustainable development and ecological destruction. As per the scope of the PR LIS and Dindi LIS additional canals including the diversion canals and pumping houses have to be constructed which will have to cross eco-sensitive zones, forest areas and sanctuary areas. Hence without getting necessary clearance and conducting impact assessment study the project should not allowed to be continued. There is already a restriction on both the States of Telengana and Andhra Pradesh in view of the Andhra Pradesh Reorganisation Act, 2014 that new projects that may be launched involving sharing of water between these two States it is mandatory to get the approval from the KRMB and the KRMB has to conduct the impact assessment of drawl of water depending upon the availability and the requirement of water which has to be sanctioned by the Apex Council. It is not the case either of the project proponent or the State of Andhra Pradesh that these two projects are not new projects. Even to contend that this is a project which is a continuation of the earlier Srisailam Reservoir unless an impact assessment study is conducted the same cannot be ascertained.
72. Having applied for the Environmental Clearance for the PR LIS and invited ToR why the same was not continued and the Environmental Clearance obtained by the State of Telengana is not answered. It appears that because there was a challenge earlier to the project which commenced without an Environmental Clearance and later after giving a false undertaking which made the applicant to withdraw the case, the 36 project was continued without Environmental Clearance. The above act of giving an undertaking for the sake of getting out of the clutches of the Courts and later not proceeding with the Environmental Clearance only goes to show that the State of Telengana in utter disregard to the Courts/Tribunals had proceeded with the illegal construction of irrigation project without obtaining an Environmental Clearance. If the drinking water purpose was the primary requirement, there is no necessity for the construction of the reservoirs as per the scope of the PR LIS. In the above circumstances, we are not in agreement with the argument of the State of Telengana that it is only for the drinking purpose and that it does not attract Environmental Clearance. Without the Environmental Clearance, having completed the construction of at least 90% of the entire project, the State of Telengana has to be assessed for the Environmental Compensation for the mitigation purposes. In the light of the above, the Original Applications are disposed of on the following:
(i) The State of Telengana should not proceed with the project without following the procedure for obtaining Environmental Clearance, namely, Screening, Scoping, Public Consultation and Appraisal.
(ii) Being a new project, they are directed to submit the project report before the KRMB and get their appraisal done and get the approval/sanction of the Apex Council.
(iii) Since, the Tribunal is of the prima-facie view that the component of irrigation is envisaged in the project and the same could not have been proceeded without the prior Environmental Clearance, the project proponent is not entitled to proceed with the project and he is restrained from proceeding with the work without getting the Environmental Clearance.
(iv) The project proponent, namely, the State of Telengana shall pay Environmental Compensation of Rs. 528 crores i.e. 1.5% of the total cost of the project (1.5% of project Cost i.e. Rs. 35,200 crores) in respect of PR LIS.
(v) Similarly, the State of Telengana shall also pay Environmental Compensation of Rs. 92.85 crores i.e. 1.5% of the total cost of the project (1.5% of project cost i.e. Rs. 6190 crores) in respect of Dindi LIS.
(vi) The above amounts of Environmental compensation shall be paid by the concerned project proponent/State of Telengana within three months to the Krishna River Management Board. On such payments, the same shall be utilised for remediation activities in the project site 37 and for Krishna River Restoration activities under the guidance and supervision of an Oversight Committee comprising of Senior Officers above the rank of Joint Secretary to Government of India from MoEF&CC, Ministry of Jal Shakti, Central Pollution Control Board and Krishna River Management Board. KRMB will be the nodal agency. The aforesaid Committee shall be constituted within one month from the date of the judgement. Plan of Krishna River Restoration covering all the riparian States shall be prepared by involving expert agencies such as NEERI. It is open to the authorities to consult any expert in the fields of river basin development, pollution abatement and riparian vegetation development. The proposed works should be implemented for the entire Krishna River on the lines of „Namami Gange' programme with flexibility to incorporate new site specific components also. Once the project plan is prepared and approved by the Committee, Ministry of Jal Shakti may entrust execution of the project to KRMB and obtain necessary approvals, if any, from the Central Government in this regard.
(vii) As it is reported already that more than 75% of the project is completed without EIA study and Environmental Clearance, MoEF&CC is directed to constitute a Committee from EAC members having expertise to go into the matter regarding mitigation, restoration and rehabilitation measures.
(viii) Both the PR LIS as well as Dindi LIS shall not be continued unless otherwise the required Environmental Clearance and other permissions/clearances/consents are obtained under the relevant laws from the competent authorities.
(ix) Let the compliance report be filed by the Oversight Committee within one year.
73. In view of the above observations and discussions, the Original Applications No. 148 of 2021 and 212 of 2021 are disposed of.
74. I.A. No. 35 of 2022 in O.A. No. 148 of 2021 is filed by the State of Andhra Pradesh under Section 26 and 28 of National Green Tribunal Act, 2010 for penalising the State of Telengana for wilful and deliberate violations and not obeying the orders of this Tribunal. It is stated that this Tribunal had passed an order on 29.10.2021 restraining the 5 th respondent, State of Telengana, who is the project proponent from proceeding with the PR LIS without obtaining Environmental Clearance for which they have already applied for and pending consideration by 38 MoEF&CC. The said order was further reiterated on 13.12.2021 also wherein this Tribunal had observed that if any work had been done after the injunction order was communicated to the contemnor, then the Tribunal would take a serious view and appropriate action will be taken against those officials who are responsible for the same including the Chief Secretary of State of Telengana for not taking proper steps to implement the orders of this Tribunal.
75. The State of Andhra Pradesh also had filed the photographs of the construction activities going on in the PR LIS at all the six reservoirs site. The photographs reveal that there is deliberate and wilful violation of the interim order dated 29.10.2021. The State of Telengana also filed an affidavit stating that works had been stopped at various reservoirs site of PR LIS on several dates in the month of November, 2021. When it is stated by State of Telengana that works have been stopped after it was brought to the safe level, the contempt applicant pointed out that there is no such practice of "Safe Level" in construction works and what are the various stages of un-safe levels are not stated anywhere.
76. The affidavit filed by the State of Telengana had clearly admitted that even after the order was passed on 29.10.2021, the works in packages 1 to 18 were stopped only in the month of November on various dates which is in utter disregard to the orders passed by this Tribunal. Hence, the contempt applicant has sought for a prayer to punish the Chief Secretary and all other officials responsible of the State of Telengana for their wilful and deliberate violation of the order passed by this Tribunal on 29.10.2021. In the order dated 17.12.2022, the KRMB was directed to file an independent report regarding the nature of work done by State of Telengana after the order dated 29.10.2021. Accordingly, KRMB constituted a team of officers to inspect the areas and ascertain the nature of work done by them after the order passed on 29.10.2021.
77. The team constituted by KRMB had filed a detailed report on the stage of work as on 29.10.2021 and the details of work performed beyond 29.10.2021 package wise. In PR LIS, there are 18 packages. The report of KRMB team has furnished in the report the observations of team. In most of the stages it is observed that "as the clay has a tendency to crack when exposed, it needs to be protected from cracking and also from unexpected rains. Excepting in package nos. 5 and 12 the works carried out may be considered as having been carried out for safety purposes.
3978. In this regard, it is to be noted that a contempt proceedings is quasi- criminal in nature. The only test is to see whether there is a clear cut case of violation of the order by a party intentionally to bring it within the ambit of the said provision. The question whether there is a contempt or not is a serious one. It is only when a clear case of contemptuous conduct not explainable otherwise, the contemnor can be punished. In other words a punishment under the law of contempt is called for only when the lapse is deliberate and in disregard of once duty and also in defiance of authority.
79. The Sate of Telengana had also filed an additional affidavit in I.A. No. 35 of 2022 based on the incident published in the newspapers wherein it is stated the works are in progress which resulted in an accident. The said incident was denied by the State of Telengana stating that it was not in PR LIS scheme and it was in Yellur Village, Sivaru in drinking water grid operation and maintenance work.
80. In the instance case, final orders are yet to be passed. It is the flouting of the interim order for which the contempt application has been filed for the wilful disobedience. Normally the purposes of initiating of contempt proceedings are twofold (i) to ensure compliance of the order passed by the Courts/Tribunals, (ii) to punish the contemnor for the wilful disobedience and the audacity exhibited to challenge the order passed. The State of Andhra Pradesh had complained that despite the order of this Tribunal dated 29.10.2021, the State of Telengana had disobeyed the same and continued with the constructions of the PR LIS without a proper Environmental Clearance. Unfortunately, in this case the Tribunal does not have any agency to enforce its orders. It is the Executive Authority of the State which has to implement the orders of this Tribunal whenever a direction is issued and the might of the State to stand behind the Court orders for the survival of the rules of the Courts. In this case, the State of Telengana is the contemnor, who is the Executive Authority itself whereby undermining the dignity of the Tribunal. If the Tribunal has to perform its duty and functions in a fair and free manner, the dignity authority of the Tribunal has to be respected and maintained at all stages and by all concerned, failing which the object of the Act and also the public faith in the system will be at risk of being lost.
81. In such circumstances, the State of Telengana has admittedly committed the act of contempt which is liable to be punished. The argument of the 40 State of Telengana that they had to continue with the work in disobedience of the order only under compelling circumstances is not acceptable. In this regard, it will not be out of place to refer to Appeal No. 20 of 2018 which was an appeal directed against the grant of Environmental Clearance by MoEF&CC dated 22.12.2017 for a project which was going on from 2008 to 2017. Ironically, in this case also the State of Telengana was involved in the Kaleswaran Lift Irrigation Scheme (KLIS) project in Karim Nagar District of Telengana State. There again the State of Telengana, as project proponent contended that primarily it is the project for water supply and water management and irrigation is subsidiary or incidental part of the project to contend that no Environmental Clearance is required prior to execution of the project from 2008 to 2017. This Tribunal, in such circumstances held that "we are also unable to agree that the State did not proceed with the irrigation component in the project, till the clearances were granted and only constructed components relating to supply of drinking water. There is no basis for the submission that no part of execution of the project prior to Environmental Clearance related to irrigation purpose as project is admittedly integral and inseparable the argument, if accepted, will defeat the law".
82. In the instant case also, the very same project proponent viz., State of Telengana is involved in PRLIS scheme project envisaged to lift 90 TMC of flood water in 60 days from foreshore of Srisailam Reservoir on Krishna River to provide drinking water to 1226 villages in 70 mandals providing irrigation facilities to 12.30 lakh acres and also for industrial use. It is admittedly a composite scheme comprising of pumping station, tunnels and storage reservoirs for irrigation, drinking and industrial use. The fact that a composite scheme which has a component for which Environmental Clearance may not be required is not sufficient for the project proponent to proceed without any Environmental Impact Assessment, cannot absolve them being guilty of contempt.
83. In such circumstances, we have no hesitation to state that the project proponent has made it a habit that being a project of public interest post- facto clearances can be obtained without even an EIA study. Having applied in Form-I for Environmental Clearance and received the ToR from MoEF&CC, there is no justifiable reason given by the project proponent for proceeding with the project without waiting for the Environmental 41 Clearance. This deliberate act of the State itself would amount to contempt which is indirect in nature. A State being a model citizen has disobeyed the procedure and attempted to circumvent the mandatory provisions in spite of a specific finding by the National Green Tribunal in Appeal No. 20 of 2018. This is also evident from the report of the KRMB team which visited all the 18 packages and filed a report. Though the project is laudable which seeks to provide drinking water to the needy and irrigation facilities to improve agricultural productivity when a huge amount of several thousands of crores of money been spent, the development has to be sustainable on the legal principles and not to ignore the damage to environment. For the wilful violations of the orders of National Green Tribunal a penalty of Rs. 300 crores is imposed on the State which also has to be paid to KRMB within 03 months. The amount should be used for Krishna River Restoration activities as indicated in Para 72(vi) supra. In view of the above findings and disposal of the Original Applications, the I.A. No. 35 of 2022 also stand disposed of.
...........................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.148/2021(SZ)a/w I.A. No. 35/2022(SZ) & O.A. No. 212/2021(SZ) 22nd December, 2022. (AM) 42 Before the National Green Tribunal Southern Zone (Chennai) O.A. No. 148 of 2021(SZ)& I.A. No. 35 of 2022(SZ) & O.A. No. 212 of 2021(SZ) D. Chandramouleswara Reddy Vs. Union of India and Ors.
With State of Andhra Pradesh Vs. Union of India and Ors.
O.A. No. 148/2021(SZ)a/w I.A. No. 35/2022(SZ)& O.A. No. 212/2021(SZ) 22nd December, 2022. (AM) 43