National Green Tribunal
Mahesh Mamindla vs State Of Telangana on 21 May, 2024
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
Item No.6:-
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Dated this the 21st day of May, 2024.
(Through Video Conference)
Appeal No.82 of 2021 (SZ) &
I.A. Nos.213 of 2021 & 81 of 2022 (SZ)
IN THE MATTER OF
1) MAHESH MAMINDLA
S/o. Yadagiri Mamindla,
R/o. H.No: 5-14, Mittapally Village,
Siddipet Mandal,
Telangana - 502 375.
2) Dr. DONTHI NARASIMHA REDDY
S/o. D. Nagireddy,
R/o. 201, Aarthi Residency,
Laxminagar Colony, Saidabad,
Hyderabad, Telangana - 500 059.
...Appellant(s)
Versus
1) STATE OF TELANGANA
Through the Chief Secretary
Department of Environment, Forests, Science and Technology,
A-3, Paryavarn Bhavan, Sanath Nagar Industrial Estate,
Hyderabad - 500 018.
2) TRANSMISSION CORPORATION OF TELANGANA LIMITED
Through Executive Engineer,
Vidyut Soudha, Khairatabad Road,
Hyderabad - 500 004.
3) FOREST DEPARTMENT
Government of Telangana
Through the Principal Chief Conservator of Forest,
Aranya Bhavam Saifabad,
Hyderabad - 500 004.
4) INTEGRATED REGIONAL OFFICE - HYDERABAD
MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE
Through Deputy Director General of Forests
3rd Floor, Room No. 309, Aranya Bhawan,
Safiabad - 500 004, Hyderabad, Telangana.
5) UNION OF INDIA
Through Secretary,
Ministry of Environment, Forest and Climate Change
Indira Paryavaran Bhavan, Ali Ganj,
Jorbagh Road, New Delhi - 110 003.
Page 1 of 26
6) HYDERABAD GROWTH CORRIDOR LIMITED
Through its Chief General Manager (T),
2nd Floor, HGCL Office Building,
Khajaguda Road, Adjacent to Nanakramguda,
Hyderabad - 500 104.
...Respondent(s)
For Appellant(s): Mr. Ritwick Dutta, Mr. Rahul Choudhary and
Mr. G. Stanly Hebzon Singh.
For Respondent(s): Mrs. H. Yasmeen Ali for R1 & R3.
Mr. Y. Rama Rao, Mr. B. Lakshmi Narasimhan for R2.
Mrs. ME. Sarashwathy for R4 & R5.
Mr. T. Sai Krishnan a/w.
Ms. C.P. Kavitha Renjini for R6.
Judgment Reserved on: 01st February, 2024.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGEMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member.
1. The above appeal is filed under Sections 16(e) read with Section 20 of the National Green Tribunal Act, 2010 challenging the legality and correctness of the Stage-I Forest Clearance vide Letter No.4-TSC180/2021-HYD/091 dated 13.05.2021 and Stage-II Forest Clearance vide Letter No.4- TSC180/2021-HYD/155 dated 07.12.2021 which are granted by the 4th Respondent / Ministry of Environment, Forest and Climate Change, Integrated Regional Office, Hyderabad and the Working Permission bearing No.13470/2019/FC-4 dated 07.08.2021 granted by the Principal Chief Conservator of Forests, Government of Telangana.
2. The permissions stated supra are said to have been granted to the 2nd Respondent/ Project Proponent viz., Transmission Corporation of Telangana Limited (TS TRANSCO) for erection and installation of 400 KV Overhead DC transmission Page 2 of 26 lines from Kethireddipally 400 KV SS to 400 KV Rayadurg GIS along the Outer Ring Road (ORR), Shamshabad Division, Telangana, and passing through forest area admeasuring 6.7075 ha. having a length of 1.458 Km and width of 46 Metres, situated within Chilkur Reserve Forestland proposed to be diverted for the said project.
3. The appellant contends that the erection and installation of overhead DC transmission lines include totally 150 pillars of various sizes to carry High Tension Electricity Cables, all arranged linearly with cables and fencing, which are likely to block the pathway of faunal movement within the forest area and pose potential hazards to faunal migration through the forest area.
4. The appellant raised the following substantial issues for quashing the Forest Clearances granted:-
4.1 The TRANSCO has provided only the map of the land required for diversion and has deliberately concealed the entire details of the cadastral map along with measurements of the Mrugavani National Park, Chilkur Reserve Forest and the eco-sensitive zone and hence, no boundary verification survey has been done or produced to identify, demarcate and verify whether the erection of the transmission lines are taking place within the boundary of the National Park.
4.2 Serial No. 8 (iii) of Form A Part II which is filled by the Deputy Conservator of Forest for obtaining Forest Clearance provides wrongful, misleading and incorrect information by stating that the forest land proposed for diversion for the erection of transmission line is not located within the eco-sensitive zone of Mrugavani National Park which is erroneous.
4.3 The Stage-II Clearance dated 07.12.2021 reveals that the project is falling inside the Eco-Sensitive Zone and asks for the preparation of a Wildlife Mitigation Plan by any competent person / agency with the approval of the Chief Page 3 of 26 Wildlife Warden. Therefore, it is clear that while granting Stage-I and Stage-II Clearance, the IRO of MoEF&CC did not apply its mind with respect to the impact of the overhead transmission line on the wildlife of the area. This becomes more important because of the proximity of the forest land diverted and the erection of transmission lines to the Mrugavani National Park and to several water bodies nearby supporting bird life in the area.
4.4 Furnishing of incorrect and misleading information by stating that the forest land proposed for diversion is not within 1 km from any National Park, though the proposed area for diversion falls within 55-300 meters from the Mrugavani National Park.
4.5 The MoEF&CC has granted clearance for the diversion of the forest land without application of mind by not assessing the impact of the overhead transmission lines that will cause irreversible fragmentation which eventually severs the umbilical cord between Mrugavani National Park and Chilkur Reserve Forest area and thereby blocking the pathway of faunal movement through the forest area and posing potential hazards. The MoEF&CC has also not considered the presence of a considerable deer population endemic to that area. The fragmentation of the forest due to diversion will adversely affect the habitat of the deer population. The total admeasured area of the Mrugavani National Park in Gazette Notification is 360 Ha., whereas the area as per the Principal Chief Conservator of Forest, Telangana measures as 287 Ha. which clearly shows that the survey not carried out for fencing the boundaries.
4.6 The IRO of MoEF&CC also has not taken into account the existence of several water bodies and the proposed transmission line will have an impact on the movement of the avian species, including migratory birds that are vital for the ecosystem.
4.7 The cost-benefit analysis by the 2nd Respondent only included the cost of trees at a minimal rate and failed to include the impact of fragmentation, aesthetic values, Page 4 of 26 collisions and electrocutions of birds, and other grave impacts on the ecology.
4.8 The MoEF&CC has not considered the option of laying the transmission line underground which will protect the transit of the faunal habitat of the Mrugavani National Park. In this regard, the Hon‟ble Supreme Court in M.K. Raniatsinh & Ors. Vs. Union of India &Ors. Writ Petition (Civil) No.838 of 2019 vide order dated 19.04.2021 acknowledged the collision risk and electrocution death of birds, including but not limited to endangered species like Great Indian Bustard from high tension transmission lines and thus ordered shifting of overhead cables underground.
4.9 Moreover, the TRANSCO has not carried out studies/assessments regarding the possibility of laying transmission cables underground, though the „Handbook of Guidelines for Effective and Transparent Implementation of provisions of Forest (Conservation) Act, 1980‟ dated 28.03.2019 in Chapter 10 titled 'Transmission Lines' states that the electricity distribution companies should preferably use underground cables in forest areas to prevent death of animals.
4.10 The impugned project is not in consonance with the ORR Buffer Zone Guidelines issued by Respondent No.1 / State Government of Telangana vide G.O. Ms. No.470 dated 09.07.2008, which stipulate that no poles, towers, unipoles or related structures can come up within 15m of the outer edge of ORR. On the contrary, the Buffer Zone guidelines stipulate plantation and maintenance of atleast two rows of thick foliage trees.
4.11 The Hyderabad Growth Corridor Limited (HGCL) has rejected the permissions sought for by the TRANSCO towards diversion citing inter-alia buffer zone violations.
However, the HGCL finally approved the impugned project proposal without assigning a reason for the reversal of its own rejection of the project.
Page 5 of 265. The 3rd Respondent / Principal Chief Conservator of Forests (Head of Forest Force) filed reply affidavit contending that the Stage - I approval was granted vide F.No.4-TSC180/2021-HYD/091 dated 13.05.2021 by the IRO, MoEF&CC, Hyderabad for the project diversion of 6.7076 Ha. of forest land in Shamshabad division for the erection of 400 KV overhead DC line from Kethireddipally 400 KV SS to 400 KV Rayadurg GIS along the outer side of ORR in favour of TRANSCO under Forest (Conservation) Act, 1980, the Forest (Conservation) Rules, 2004, the guidelines and clarifications and amendments issued therein. Upon payment of compensatory levies and compliance with other conditions requiring for the issue of working permission, based on the detailed report of the Additional Chief Conservator of Forests, Ranga Reddy, working permission for commencement of work and extraction of tree growth was accorded by the Principal Chief Conservator of Forests (Head of Forest Force) vide Rc.No.13470/2019/FCA-4 dated 07.08.2021. The compliance report was also submitted by the Forest Department, Government of Telangana, Hyderabad to the IRO, MoEF&CC, Hyderabad vide Letter No.746/For.I(1)/2021 dated 23.11.2021 and the Stage - II (Final) approval was granted by the IRO, MoEF&CC, Hyderabad vide F.No.4- TSC180/2021-HYD/155 dated 07.12.2021 and that final orders from the State Government were awaited.
6. It was also stated that though in Form A Part I filed by the TS TRANSCO, the details like the location of the proposals with respect to Mrugavani National Park, its eco-sensitive zone, etc. are not mentioned, the same are verified during the processing of the proposals by the State Forest Department and reported that the proposals are not falling within the Mrugavani National Park, but falling within the proposed/deemed eco- sensitive zone of the Mrugavani National Park. Since the proposed area falls within (i)1 KM of the Chilkur Mrugavani National Park (located at a distance ranging from 50 m to 300 m from the boundary of Chilkur Mrugavani National Park),(ii) the deemed Eco Sensitive Zone and laying of transmission line is a regulated activity, the proposals were placed before the eco- sensitive zone committee headed by the District Collector -
Page 6 of 26Rangareddy and the committee has accorded permission for the project on 19.02.2021 subject to the following conditions:
(i) The power line may be erected without damaging the trees and animals in Chilkur Reserve Forest and outside also.
(ii) Safety measures are to be taken without damaging the human and wildlife.
(iii) All along the boundary, the user agency has to construct the see-through wall.
(iv) Under the transmission line and surroundings, the user agency has to develop/ maintain the green cover.
(v) The caution boards shall be erected all along the boundary.
7. It was also stated that as stipulated by the IRO, MoEF&CC, the TS TRANSCO has entrusted the work of preparing the Wildlife Mitigation Plan to the Principal Scientist & Head, All India Network Project on Vertebrate Pest Management, PJTS Agricultural University, Rajendranagar, Hyderabad and furnished the Wildlife Mitigation Plan with recommendations. Accordingly, the Wildlife Mitigation Scheme is prepared by the DFO, Rangareddy which has been scrutinized and approved by the Principal Chief Conservator of Forests (Head of Forest Force) & Chief Wildlife Warden vide Rc.No.13470/2019/FCA-4 dated 25.01.2022 for an amount of Rs.545.063 Lakhs.
8. It was also submitted that while considering the TS TRANSCO‟s proposal for laying transmission line for 12 Km, of which, 1.45818 Km is passing through the Chilkur Reserve Forest of Shamshabad Division of Rangareddy District, necessary verification was done on the ground. It was also submitted that
(i) transmission line is being laid along the Outer Ring Road passing through the Chilkur Reserved Forest after obtaining Stage - II approval and that there is no further fragmentation due to this project though there is a reduction in the reserved forest area, (ii) A condition was stipulated for raising of dwarf and medicinal plants within the RoW of Transmission line, for which, TS TRANSCO has paid an amount of Rs.25,02,792/-, along with an amount levied towards cost of Net Present Value, raising compensatory afforestation, etc., besides other cost for an amount of Rs.15,26,100/-. The total amount paid was Rs.2,52,52,295/-. In addition, the user agency was asked to pay Page 7 of 26 a sum of Rs.545.063 Lakhs towards the implementation of the Wildlife Mitigation Plan. It was also highlighted that there is a CRS masonry wall/ fencing clearly demarcating the Chilkur Mrugavani National Park and the Chilkur Reserved Forest areas and that necessary underpasses for movement of wildlife constructed by HUDA/Hyderabad Growth Corridor Limited (HGCL) as stipulated during the construction of Outer Ring Road.
9. The PCCF has also contended that the guidelines issued by the MoEF&CC, New Delhi vide F.No.5-2/2017-FC dated 28.02.2019 and amendments issued therein have been followed while processing of the proposals. The Chilkur Mrugavani National Park was declared under Section 35 (4) of the Wildlife (Protection) Act, 1972 vide G.O. Ms. No.80, Environment, Forests, Science and Technology (For.III) Department dated 27.06.1998 for an extent of 360 Ha. (surface area). The area was estimated using the technologies available at that time. In the Notification, it is clearly mentioned that the Chilkur Mrugavani National Park boundary is fenced all along the boundary at the time of notification itself and hence, the boundary is well demarcated and there is no change in the boundary. However, as measured using modern technologies of DGPS and GIS, the extent of area is estimated as 287 Ha. (projected to a horizontal plane) and the variation is due to the adoption of different techniques for surveying, mapping and area estimating techniques, and there is no change in the boundaries as described in the notification. As per the orders of the Hon‟ble Supreme Court of India, the boundary description is final. However, in their additional reply affidavit dated 25.02.2023, it was stated that the area of the transmission line project lies outside the national park completely. According to the area statement given in the Gazette Notification G.O. Ms. No.80, EFS&T (For.III) dated 27.06.1998, the eastern boundary of the National Park runs, "From point „B‟ the line runs on Southern Direction along the Zilla Parishad Road connecting Hyderabad - Vikarabad highway and Mancherevula, Narsingi Villages and reaches point „C‟. The area is fenced with chain link". The location of the project is on the eastern side of the above boundary line and thus falls outside of the Mrugavani Page 8 of 26 National Park. The location of the project and the boundary of Mrugavani National Park are shown on the map. From the map, it is clear that the project lies outside the National Park boundary. Though the area of the National Park was notified as 360 Ha., till today the boundary of the National Park has not been changed. In 2011, the DGPS Survey was conducted to ascertain the accurate area of the National Park using modern techniques of survey and it is in this survey, it was found that the area of the National Park is actually 287.48 Ha. against 360 Ha. in the notification. Necessary action is being initiated to issue errata to the notification of the National Park based on the re-survey which is being undertaken using the latest DGPS tools.
10. It was also claimed that cost benefit analysis was not required for this project, as the area is less than 20 Hectare, as per the guidelines issued in „Handbook of MoEF&CC‟ in F.No.5- 2/2017-FC dated 28.03.2019 and amendments issued therein. Therefore, the cost benefit analysis furnished by the TS TRANSCO is not valuated and the same may be ignored. It was also highlighted that the condition has been stipulated to ensure that "the User Agency at its cost shall provide bird deflectors, which are to be fixed on the upper conductor of the transmission line at suitable intervals to avoid bird hits" and TS TRANSCO has been requested to comply with installation of Bird Flight Divertors as per the specifications of the Government of India, Ministry of Power, Central Electricity Authority issued in F.No.CEA-PS-14-75/1/2019-PSETD Division/624-87 dated 10.11.2021 issued in pursuance of the orders of the Hon‟ble Supreme Court have been communicated to the User Agency for implementation.
11. It was also stated that the guidelines issued in "Eco- Friendly Measures to Mitigate Impacts of Linear Infrastructure on Wildlife" by the Wildlife Institute of India, Dehradun are followed in case of transmission line projects and that the current project does not require EC as per the EIA Notification, 2006 and the guidelines issued therein. It was also claimed that the recommendations made by the Wildlife Institute of India are for specific areas with regard to birds and they are not applicable to areas diverted for the project. Therefore, the recommendations Page 9 of 26 of the Wildlife Institute of India regarding the birds are not applicable in the instance case.
12. It was also claimed that prior clearance from the standing committee for National Board for Wildlife is not required for the impugned project since the transmission line projects are not covered under EIA Notification, 2006 and do not require EC. It was also stated that the Eco Sensitive Zone of the Chilkur Mrugavani National Park was not notified. Hence, 10 km from the periphery of the National Park is taken into consideration and the consent of the ESZ Committee was obtained and therefore, as per all the existing guidelines, the present project does not require EC and therefore, clearance under Wildlife (Protection) Act, 1972 from Standing Committee of National Board for Wildlife is not required.
13. A common affidavit has been filed by the MoEF&CC and IRO, MoEF&CC, Hyderabad viz., Respondent No.4 and 5 respectively, wherein it is contended that 13.1 The Government of Telangana had submitted a copy of the proposal for diversion of 6.7076 Ha. of forest land in Shamshabad division for the erection of 400 KV overhead DC line from Kethireddipally 400 KV SS to 400 KV Rayadurg GIS (TSPA junction to ORR Junction) along the outer side of ORR in favour of EE, 400 KV/Const-III, Metro, TS, TRANSCO, Hyderabad to the Integrated Regional Office, MoEF&CC, Hyderabad. The State Government processed and forwarded above mentioned proposal through online vide proposal No. FP/TG/TRANSI 4227 7 12019 on 23.03.2021.
13.2 Along with the above mentioned forest clearance proposal, the State Government submitted a map (along with DGPS coordinates) duly countersigned by the Divisional Forest Officer, Ranga Reddy and the User Agency also uploaded the kml file of the entire forest area i.e., 6.7076ha. in the online proposal in the Ministry of Environment, Forests & Climate Change (MoEF&CC), PARIVESH Portal.
Page 10 of 2613.3 The Divisional Forest Officer, Ranga Reddy in FORM A (PART II) under Sl.No. 8 (iii) of the said proposal, had not reported that the forest area i.e. 6.7076 ha proposed for diversion is falling within the Eco Sensitive Zone of Mrugavani National park and the Divisional Forest Officer, Ranga Reddy in FORM A (PART II) under Sl. No.8(iv) reported that no national park, wildlife sanctuary, biosphere reserve, tiger reserve, elephant corridor, wildlife migration corridor etc. is located within 1 Km from the boundary of the forest land proposed for diversion. However, in the checklist submitted along with the proposal, it was reported that the forest area proposed for diversion is falling in the Eco Sensitive Zone of Mrugavani National Park.
13.4 The Keyhole Markup Language (kml) file uploaded by the User Agency was analyzed through Decision Support System (DSS) and it was noted that the area violated the Protected Area Rule of DSS and fell in Mrugvani National Park. Therefore, additional information/ clarification was called for, for further consideration of the proposal as noted below:-
"a. As per the report of DFO & Conservator of Forests (CF), the "proposed area is not falling in any National Park, Wildlife Sanctuary, Tiger Reserve, etc." But as per the check list in Page No.10 of the file it reads that the area is "falling in ESZ of Mrugvani National park". It is also submitted that based on the DSS analysis the area violates the Protected Area Rule and falls in Mrugavani National Park. The above discrepancy needs clarification and if the area falls under ESZ, then appropriate permission is needed.
b. As per the report of UA entered in Parivesh Portal"
alternative routes were not examined", hence, map clearly depicting alternative routes along with write up on the same shall be furnished.
c. CA land proposed is an isolated bit devoid of much vegetation hence its suitability as well as future protection from biotic and grazing pressure needs to be reported. Also, as per the data entered in PARIVESH portal, CA Scheme is proposed for the area of 13.415 ha whereas the area comes under DSS analysis is 14.95 ha. Hence, clarification on the above discrepancy in the data may be reported.
d. Already a multilane highway /ORR is passing nearby the proposed forest through RF hence details such as total area of RF notified area and project wise details of already diverted area in the RF along with references of FCA clearances may be submitted."
13.5 In their reply, the Department of Environment, Forests, Science & Technology, Telangana State submitted that the Eco Sensitive Zone (ESZ) of Chilkur Mrugavani National Page 11 of 26 Park was not notified and hence 10 km from the periphery of the National Park was taken into consideration. It is confirmed that the forest area proposed for diversion of 6.7076 ha. in Shamshabad division for the erection of 400 KV overhead DC line along the outer side of ORR falls in Eco Sensitive zone (ESZ) of Chilkur Mrugavani National Park.
13.6 The said proposal along with additional information received from the State Government vide letter No.746/For.l(l)/2021 dated 01.05.2021 was placed before the REC in its 47th Meeting held on 07.05.2021.
13.7 The said proposal was examined as per the extant regulations and guidelines of the Ministry. During the examination, the Committee sought further details/ clarifications from the Principal Chief Conservator of Forests (PCCF), Telangana and the User Agency regarding justification for the forest area proposed for diversion and alternative routes examined for the impugned proposal.
13.8 Only after a detailed deliberation, the Regional Empowered Committee (REC) recommend the proposal to issue Stage-I (in-principle) approval, subject to the Standard Conditions as applicable to such transmission line projects with the following additional conditions;
"a. State Forest Department shall ensure minimum tree felling and shall translocate the trees wherever feasible at the cost of the User Agency;
b. state Forest Department shall carryout plantation of dwarf medicinal plants under the transmission line at the cost of the User Agency;
c. As the proposed forest area falls in Eco Sensitive zone, the user agency shall get the wildlife mitigation plan prepared by any competent person /agency with the approval of chief wildlife warden and implement it at the cost of the User Agency."
13.9 Based on the recommendation of the Regional Empowered Committee (REC), the Integrated Regional Office, Hyderabad vide its letter No.4-TSC180/2021-HyD/091 dated 13.05.2021 conveyed the Central Government's Stage-I approval for the diversion of 6.7076 Ha. of forest land along the outer side of ORR in favour of EE, 400 Page 12 of 26 KV/Const-II, Metro, TS, TRANSCO, Hyderabad, subject to certain conditions.
13.10 Based on the recommendation of the REE, in order to ensure minimizing the impact of the wildlife animals and the number of trees to be felled, the following specific conditions were stipulated in the Stage-I (in-principle) approval:-
"a. The User Agency in consultation with the State Forest Department shall prepare and execute a detailed scheme for creation and maintenance of plantation of dwarf species (preferably medicinal plants) in the right of way under the transmission line in consultation with the State Forest Department.
B. As the proposed forest area falls in Eco Sensitive Zone, the user agency shall get the wildlife mitigation plan prepared by any competent person / agency with the approval of Chief Wildlife Warden and implemented at the cost of the User Agency.
C. The user agency shall restrict the felling of trees to the minimum in the diverted width of 46 Meters of the forest land and the State Forest Department shall carry out translocation of the trees wherever feasible at the cost of the User Agency. In case of felling, the trees shall be felled under the strict supervision of the State Forest Department at the project cost.
D. The user agency as its cost shall provide bird deflectors, which are to be fixed on the upper conductor of the transmission line at suitable intervals to avoid bird hits. E. The trees on strips would have to be felled but after stringing work is completed, natural regeneration will be allowed to come up. Future pollarding/ pruning of trees will be done with the permission of the local forest officer wherever necessary for the maintenance of the transmission line.
F. During construction of transmission line, pollarding/ pruning of trees located outside the 46 meters width of the strips whose branches / parts infringe with conductor stringing shall be permitted to the extent necessary, as may be decided by the local forest officer."
13.11 The Telangana State Government vide Letter No.746/For.I (1)/2021 dated 23.11.2021 submitted a compliance report on conditions stipulated in the Stage - I (in principle) approval which was examined by the IRO, Hyderabad and confirmed the receipt of the amount deposited by the user agency towards compensatory afforestation (CA). After examination of the compliance report, the IRO vide Letter No.4-TSC180/2021-HYD/155 dated 07.12.2021 conveyed the Central Government‟s approval (Stage-II) under Section 2 of the Forest (Conservation) Act, 1980 for diversion of 6.7076 Ha. of forest land in Shamshabad division for erection of 400 KV overhead DC line from Kethireddipally 400 KV SS to 400 KV Rayadurg GIS (TSPA junction to ORR Junction) along outer side of ORR in favour Page 13 of 26 of EE, 400 KV/Const-III, Metro, TS, TRANSCO, Hyderabad with imposition of certain conditions.
13.12 The user agency also asked to submit a Wildlife Mitigation Plan prepared by a competent person/agency with the approval of the Chief Wildlife Warden, as the proposed area falls in an Ecological Sensitive Zone. It is submitted that in Chapter 10 of the Handbook of Guidelines for Effective and Transparent Implementation of provisions of Forest (Conservation) Act, 1980 dated 28.03.2019, the width of Right of Way, width clearance below each conductor or conduct bundle for stringing purposes (meter) for different transmission voltage lines, minimum clearance between conductor and trees (meters) etc. were specified. The specification for such 400 KV overhead DC line has been duly adopted under the project in question.
13.13 Since the transmission line in question is 400 KV DC, for which, 46 meters Right of Way is specified, it was ensured that there is 7 meter width clearance below each conductor or conductor bundle for stringing purposes and 7 meters minimum clearance between the conductor and trees. In addition, the specific condition to provide bird deflectors was imposed and that all aspects of the proposal including the nature of fauna present in and around the forest area that is being diverted were considered by REC. Further, the subject transmission line is passing all along the already existing road only and hence, fragmentation of the forest because of the transmission line does not arise. However, to mitigate any adverse effects on fauna, IRO has stipulated the implementation of the Wildlife Mitigation Plan by the user agency at their cost. The cost-benefit analysis is not required for the current proposal since the project involves the diversion of forest land of only 6.7076 Ha. which is well below the threshold of 20 Ha. in place.
14. The Hyderabad Growth Corridor Limited (HGCL)/ Respondent No.6 has filed its reply stating that the proposal of the 2nd Respondent for the erection of 400 KV line from TSPA junction to Gachibowli flyover to lay the line along the Outer Ring Road on monopoles along the ORR service road and Page 14 of 26 main carriageway from TSPA junction to Gachibowli was rejected vide Letter No.CGM(T)/DGM(Ele)/HGCL/8025/2018-19 dated 08.02.2019 for the reasons that the monopoles cannot be erected in the greenbelt i.e. ORR buffer zone as per regulations in force. However, the representation of the 2nd Respondent dated 18.02.2019, wherein it was once again requested to permit the erection of monopoles between ORR and service road was rejected since the said area is earmarked from Metro Rail Corridor and the said rejection order was communicated on 26.03.2019. Vide letter dated 28.05.2019, the 2 nd Respondent proposed for permission with an alternate route for monopoles and by letter dated 20.07.2019, the 2nd Respondent submitted the revised plan for laying an overhead line from TSPA junction to Gachibowli alternate route on the other side of ORR after service road to this respondent, which was examined and approval was given for laying of line in the open space in the ORR vide Letter No.113/CGM/(T)/HGCL/DGM-1/UTILITY PERMISSIONS/2016-17 dated 18.01.2020 on payment of requisite amount of Rs.4.09 Crores. It was also submitted that in view of the importance of the line owing to ever growing power demand for IT corridor and there is no alternate route and also considering the directions of the State Government and repeated requests from the 2nd Respondent to the amendments of the ORR Main Carriage Way (other side of Metro Corridor) within the right of way of ORR duly allowing some relaxations of the 2nd Respondent and accordingly, the monopoles are laid within the right of way of the outer ring road and that the line works were taken up in the land which belongs to the Hyderabad Growth Corridor Limited and other Government Departments only with due approvals.
15. The 2nd Respondent/Project Proponent viz., Transmission Corporation of Telangana Limited (TS TRANSCO) has filed its reply contending that originally, the laying of line was planned with 15 Km UG cable, due to space constraints and corridor restrictions. After formulating the scheme, the load flow and system studies were conducted with the Central Electricity Authority of India and since the study revealed that laying of 15 Km UG cable is not technically feasible, they had to revise the scheme to overhead line on Page 15 of 26 monopole (due to space constraint) and UG cable (to the extent technically feasible).
16. It was also contended that "the Under Ground (UG) cable was not considered in the forest reach as laying UG cable in between OH (Over Head) line is not technically viable, as termination of 400 KV UG cable requires around 1000 Sq. Mt. switchyard on both the sides. The switchyard has to be maintained regularly. This arrangement will not be possible and is not feasible considering the forest area. Further, also as per feasibility studies a maximum 3 Km UG cable can be laid and this 3 Km is already laid from 400 KV Rayadurg SS to ORR (Gachibowli Junction). There is no scope for further laying of UG cable in this line".
17. The Project Proponent initially proposed to erect a 400 KV DC line from Kethireddypally to Rayadurg along ORR beside TSPA junction to the Gachibowli flyover, but permission was denied by the HGCL, since the same corridor is under consideration for the Metrorail Project. Accordingly, the corridor is shifted to the other side of the ORR after service road.
18. It is also stated that the revised guidelines for laying of transmission line through forest lands vide Letter No.F.No.7- 2V2o.R2-FC dated 05.05.2014 by the MoEF&CC, the required width of Right of Way is 46 Meters for 400 KV Double Circuit (DC) transmission line. It was also stated that the area required for the foundation of monopole towers which ranges between 144 Sq.M. and 231.04 Sq.M. depending on the type of monopole is much lower than the required area for the foundation of quad pole towers which ranges from 328.33 Sq.M. to 801.45 Sq.M. depending on the type of quad pole tower. In view of the quad pole erected, the area utilized for the foundation was 2,756.85 Sq.M., whereas the requirement would have been 1,212.32 Sq.M. for the erection of monopole.
19. It is also contended that though the area required for the foundation is more in quad pole, the required safety clearance from live part to body after stringing the line on the tower is the same in both cases. As such, the corridor / width of Page 16 of 26 Right of Way required is the same in both the cases i.e. 46 Meters. Therefore, the erection of quad pole in the place of monopole tower would not have altered the requirement of forest area for the project and only considering the financial burden, they have erected the quad pole instead of monopole.
20. It was contended that they have obtained necessary approvals from the competent authority and considering the financial burden, lattice/quad pole towers were erected in the Mrugavani Forest stretch after receipt of the approvals from the Forest Department since the required width of Right of Way for any electrical transmission line depends on the voltage of transmission line irrespective of the type of tower (monopole/ quad pole).
21. It was also contended by the Project Proponent that though the total line length of the monopole of 11.4 Km is to be erected in thickly populated areas having stringent corridors, they have laid the line only in the lands of HGCL and other Government departments and they have studied the three routes and finally, they chose the route which requires minimum length of Mrugavani Forest stretch i.e. 1.45818 Km to minimize the forestland requirement and also claims that there are no other possible routes for 400 KV line to reach the ORR.
22. It was also contended by the Project Proponent that they have duly followed the rules and requirements in vogue and only after obtaining necessary approvals from the concerned departments and payments to the Forest Department as per their demand notice, 400 KV line work was taken up in Mrugavani Forest stretch. It is also stated that the said transmission line is laid duly taking all safety precautions and statutory electrical clearance as per the I.E. Rules and CBIP Transmission Line Manual all along the line.
23. It is also stated that as part of the wildlife mitigation plan undertaken in compliance with the forest approval, bird deflectors are being undertaken in the entire stretch of the Mrugavani Forest for the diversion of birds and to avoid any accidents.
Page 17 of 2624. It was also submitted that the project has been completed and the line was charged on 10.01.2022 and is in service since then. It was submitted that the Project Proponent along with Form A Part I have submitted a map showing the details of the Reserved Forest with ETS and DGPS/GNSS, Survey data map authenticated by the Forest Department and that they have not intentionally concealed any information.
25. Heard the learned counsel Mr. Ritwick Dutta for the appellant, Mrs. H. Yasmeen Ali for the State of Telangana, Mr. Y. Rama Rao for the Project Proponent viz., TS TRANSCO, Mrs. ME. Sarashwathy for the MoEF&CC and Mr. T. Sai Krishnan for the 6 th Respondent.
26. The learned counsel Mr. Ritwick Dutta appearing for the appellant has raised the following issues:-
26.1 The Forest Department, despite knowing that the area is within the ecologically sensitive area of Mrugavani National Park, has deliberately omitted mentioning the same, as well as the proximity to the National Park. The Project Proponent also concealed this vital information in their application.
26.2 Though the National Forest Policy clearly stipulates that all efforts must be made to avoid the use of forest land for non-forest purposes, in the instant case, the space available between the Outer Ring Road and Service Lane was avoided and the forest land was permitted for laying the transmission line.
26.3 Though the use of forest land was clearly avoidable neither the Regional Empowered Committee (REC) nor the MoEF&CC examined this critical aspect while considering the project for approval.
26.4 While seeking diversion of the forest area, the user agency stated in Form A Part I Section D that "there is no other alternative examined".
26.5 The REC adopted a mechanical approach, despite knowing that the area proposed is not only an Ecologically Sensitive Page 18 of 26 Area but the Forest Department did not even establish the boundary of the Mrugavani National Park before diverting forest land that in all likelihood is part of the Mrugavani National Park.
26.6 The Superintending Engineer filed false affidavits before the Tribunal that initially acknowledge the availability of a width of 12 Meters space but subsequently claim that the impossibility of laying of transmission line within the availability of 2 Meters space which amounts to perjury and as a case of dereliction of duty and breach of public trust, for which, appropriate penal action should be taken against the concerned officers.
26.7 The Forest Clearance given will lead to the fragmentation of forest and disruption of wildlife corridors and movement paths.
26.8 The Forest Clearance was based on the false, misleading and wrong information given by the Forest Department of the State Government. Therefore, the clearance granted by the MoEF&CC is not correct.
26.9 The MoEF&CC erred in granting the Forest Clearance for the diversion of forest land despite the availability of non-forest land.
26.10 The Forest Clearance may also have to be revoked due to a discrepancy between the approved Monopole construction, whereas the actual erection of the quad pole on-site.
26.11 The Forest Department has breached the public trust by not conducting any survey of the National Park for a decade nor establishing forest boundary before recommending diversion of forest land and eventually doing the survey only on the orders of the Hon‟ble Tribunal in the present application.
26.12 Form A Part II which is filed by the Deputy Conservator of Forest for obtaining the Forest Clearance has also furnished incorrect and wrong information in response to Sl. No.8 (iii) & (iv) of Form A Part II which are as follows:-Page 19 of 26
"(iii) Whether the forest land proposed for diversion is located within eco-sensitive zone (ESZ) of the Protected Area notified under Wildlife (Protection) Act, 1972 (Note: In case, ESZ of a Protected Area is not notified, then, 10 Kms distance from boundary of the Protected Area should be treated as ESZ): No.
(iv) Whether any national park, wildlife sanctuary, biosphere reserve, tiger reserve, elephant corridor, wildlife migration corridor etc., is located within 1 Km. from boundary of the forest land proposed for diversion: No."
26.13 The Deputy Conservator of Forest has concealed the facts with a malafide intention to obtain the Forest Clearance and that the State Forest Department being a custodian of the forest land has failed in protecting the same.
26.14 The Forest Clearance which is granted on the basis of the concealment and wrong information is liable to be quashed, as done by this Tribunal in Sandeep Desai Vs. State of Goa [O.A. No.47 of 2012 (PB)].
26.15 The Project Proponent failed to consider that the direct route between ORR and service lane to erect transmission lines instead has deliberately sought the forest land and where they have erected the quad towers though the forest diversion could have been completely avoided.
26.16 The Project Proponent has not analyzed alternate methods for execution of the impugned project and in support of the same stated that "there is no other alternative examined" in response to the question „Reason for not providing such map‟ in Form A Part I Section D (ii) (a).
26.17 Since the direct route between the ORR and service lane was not chosen, the diversion of the forest land as resulted in cutting of 1851 trees from the forest area.
26.18 It is only in the 47th Meeting of the REC, MoEF&CC, IRO dated 10.05.2021, in Agenda No.3, the three alternative routes/alignments said to have been considered by the TS TRANSCO were discussed and appraised by the REC. However, no rationale for specifically considering the three impugned alternatives was provided. The direct route was completely ignored and the route involving the diversion of forest land was chosen which also resulted in cutting of 1851 trees.
Page 20 of 2626.19 The Hyderabad Growth Corridor Limited (HGCL) vide Letter dated 20.07.2019 has accorded approval to TS TRANSCO for the transmission lines in the forest area on Monopoles. But in deviation to the above orders, the TS TRANSCO had erected approximately 1.458 Km length of 400 KV DC Line from Kethireddypally-Rayadurg through the forest land from location AP - 45 to AP - 47 with 5 Nos. of Lattice/Quad Towers.
26.20 The Monopoles require a much lesser right of way, whereas the Quad Towers require a much higher right of way for erection. Further, the Telangana Gazette Notification No.71 vide dated 05.05.2018 has categorically bifurcated the 43 Km DC line to be erected as "400 KV DC line from proposed Rayadurg SS to Kethireddypally SS - 43 Km:
400 KV Twin HTLS DC Line on Quad Conventional Towers from Kethireddypally SS to AP 41 - 29 KMS.
400 KV Twin HTLS DC Line on Monopoles from AP-41 to AP-75 (ORR Junction) - 11 Kms.
400 KV XLPE UG Cable from AP-75 (ORR Junction) to proposed 400 KV GIS Rayadurg - 3 Km"
26.21 The TS TRANSCO in complete contravention to the Telangana Gazette Notification has erected the Quad Towers from AP - 41 to AP - 47. Contrary to the claim of the Superintending Engineer, the storm water drain existing between the ORR and Service Lane is not at all a hindrance or constraint to erect Monopole since the drain consumes only 2.5 M of available 12.5 M space between ORR and Service Lane leaving full 10 M width of space available still between ORR and Service Lane.
26.22 The TS TRANSCO has erected Monopole right on top of the lined drain or adjacent to it before the Mrugavani National Park and after the Mrugavani National Park. If a similar approach had been taken for the installation of Monopole along the Mrugavani Forest stretch, the need for deviation of forest land could have been avoided. The officers of the Forest Department by not conducting any survey of the National Park for a decade not establishing the forest Page 21 of 26 boundary before recommending the diversion of the forest land and eventually doing the survey only on the basis of the Tribunal‟s orders in the present appeal and admitting the gross shortfall of 22.3% area, amounts to breach of public trust.
26.23 Though the mandate of the National Forest Policy, 1988 that projects which interfere with forest and ecologically sensitive areas should be severely restricted, was not followed. Even, the REC failed to comply with the requirement of the National Forest Policy, 1988 by not critically examining the need for the diversion of the forest land. The diversion of forest land permitted by the REC/MoEF&CC is in violation of the Judgment of the Hon‟ble Supreme Court in Lafarge Umiam Mining Private Limited Vs. Union of India (2011) 7 SCC 338, wherein it was held that the principles laid down by the National Forest Policy, 1988 must govern the grant of permission. The officers of the Forest Department by providing false information i.e. not disclosing that (i) the area is part of the Ecologically Sensitive Area of the Mrugavani National Park and (ii) the presence of the National Park within 1 Km have committed a patent breach of public trust as held in M.C. Mehta Vs. Kamalnath (1997) 1 SCC 388.
27. The learned counsel for the MoEF&CC has reiterated that all the procedures have been followed as detailed in their counter affidavit.
28. The learned counsel appearing for the Project Proponent has also explained in detail about the efforts made by the Project Proponent for considering the possibility of laying Under Ground cable in the forest reach but could not carry the same due to technical feasibility issues. It was also contended that the Right of Way for both quad pole and monopole, in the instant case, will remain the same. It was further contended that though they have proposed the laying of the line along the ORR, between the ORR and Service Lane, the same could not be undertaken since the HGCL has denied the permission and the Page 22 of 26 permission was granted in the open area on the other side of the ORR beyond the service lane. It was reiterated that the Project Proponent has examined the alternative routes and chose that the route which was finalized requires the diversion of minimal forest area. The learned counsel for the Project Proponent also explained that all clearances have been obtained and the Project Proponent will abide by all the conditions imposed.
29. A perusal of the documents produced and the counters filed reveals that as stated by the appellant, in Form A Part I, information relating to Mrugavani National Park was found missing though the details were available in the annexures and maps furnished by the District Forest Officer‟s report and documents filed by the Project Proponent. However, the IRO, MoEF&CC, Hyderabad while scrutinizing the application has found that the DFO, Rangareddy in Form A Part II under Sl. No.8 (iii) of the said proposal had not reported that the forest area i.e. 6.7076 Ha. proposed for diversion is falling within the Eco Sensitive Zone of the Mrugavani National Park and that the said officer noted in Form A that no National Park, Wildlife Sanctuary, Biosphere Reserve, Tiger Reserve, Elephant Corridor, and Wildlife Migration Corridor are not located within 1 Km from the boundary of the forest land proposed for diversion. However, in the checklist submitted along with the proposal, it was reported that the forest area proposed for diversion is falling in the Eco Sensitive Zone of Mrugavani National Park. An analysis through the Decision Support System (DSS) by the IRO revealed that the area violated the Protected Area Rule of DSS and fell in Mrugavani Park and therefore, additional information/ clarification was called for, along with the alternative routes examined for the impugned proposal. Only after detailed deliberation, the REC has recommended the proposal to issue Stage - I approval subject to conditions.
30. With reference to the contention of the appellant that space available between the ORR and service lane could have been used to avoid the diversion of forest land was refuted by the Project Proponent by submitting that though they have initially proposed the said area for the erection of monopole they could not lay the transmission lines in the said area since the Page 23 of 26 HGCL has refused the permission stating that the said corridor is earmarked for the Metrorail Project. Even the HGCL has categorically stated that since the area between the ORR and service lane is earmarked for the Metrorail Project, only the open area on the other side of the service road was accorded to the Project Proponent for laying the transmission line.
31. Regarding the contention of the appellant that the Forest Department did not even establish the boundary of the Mrugavani National Park before diverting the forest land, the 3rd Respondent/PCCF has given a detailed explanation stating that even in the Notification dated 27.06.1998, it is clearly mentioned that the Chilkur Mrugavani National Park is fenced all along the boundary at the time of notification itself and they have not changed the boundary. However, when they surveyed deploying using modern techniques of DGPS/GIS, variation was found though there is no change in the boundaries as described in the notification. The PCCF has also furnished the details of the area statement given in the gazette notification and submitted that the location of the project is on the eastern side of the boundary line and falls outside of the Mrugavani National Park.
32. With reference to the discrepancy of the area, it was submitted that due process will be followed for issuing errata.
33. With regard to the contention raised that the Forest Clearance given will lead to fragmentation of the forest and disruption of wildlife corridor and movement pathways, it is established that the said project is being laid along the ORR passing through the Chilkur Reserved Forest and that there will be no further fragmentation due to this project, though there will be reduction in the reserved forest area. It is also reported that during the construction of ORR through the Chilkur forest area, necessary precautions have been taken by constructing underpasses for the movement of wildlife which were constructed by the HUDA/HGCL as stipulated by the Forest Department. The Forest Department has also categorically stated that the guidelines to be followed for different national parks and sanctuaries vary depending upon the faunal population and considering the fauna of the Mrugavani National Park, Page 24 of 26 conditions have been imposed to ensure that even the movement of the avian fauna is taken care of based on the guidelines in force. The orders of the Hon‟ble Supreme Court regarding laying of Under Ground cables to protect the Great Indian Bustard, an endangered species, are not applicable to this case, as the precautions to be taken for the Great Indian Bustard which is most critically endangered bird and found predominantly in Rajasthan and Gujarat are completely different from that of Mrugavani National Park.
34. The IRO, MoEF&CC, before according the clearance, has obtained details of the alternate routes and only after satisfying the routes which require minimal area of forest land, approvals were granted. From the above, it is clear that the IRO/MoEF&CC have critically examined the proposal and imposed necessary conditions.
35. Though the Project Proponent has secured permission for the transmission line in the forest area on monopole, without seeking any amendments they have deviated and switched over to a quad pole for laying the transmission line in the forest area citing financial prudence.
36. We are not satisfied with the claims that quad poles were erected to save finances for the organization and that the Right of Way for both the quad pole and monopole is 46 Meters. Even if their contention has merits, they ought to have sought necessary amendments from the Forest Department.
37. In as much as the project work has already been completed and serves the larger interest of the public, we refrain from directing the replacement of quad pole with monopole, since it will lead to disruption of power supply and consequential impact on the users. However, since the Project Proponents laid quad poles without necessary permission, we impose a penalty of Rs.50 Lakhs which shall be paid to the IRO, MoEF&CC, Hyderabad and the said amount will be used for the improvement of Mrugavani National Park and also tree cover in the Chilkur Reserved Forest area.
Page 25 of 2638. Therefore, for the reasons cited supra, we find that in spite of the omissions in Form A, the supervisory officer viz., IRO, MoEF&CC, Hyderabad have rightly considered that the project area falls within the Eco Sensitive Zone of Mrugavani National Park and have imposed necessary conditions as per the guidelines in force.
39. In the result, the appeal [Appeal No.82 of 2021 (SZ)] is disposed of on the following terms,
(i) The Project Proponent is imposed a penalty of Rs.50 Lakhs which shall be paid to the Integrated Regional Office, MoEF&CC, Hyderabad within a period of 2 (Two) Months.
(ii) Upon such payment, the same shall be used for the improvement of Mrugavani National Park and also tree cover in the Chilkur Reserved Forest area.
(iii) No costs.
40. In view of the above, the interlocutory applications [I.A. Nos.213 of 2021 (SZ) & 81 of 2022 (SZ)] are closed.
Sd/-
Smt. Justice Pushpa Sathyanarayana, JM Sd/-
Dr. Satyagopal Korlapati, EM Internet - Yes/No All India NGT Reporter - Yes/No Appeal No.82/2021 (SZ) 21st May, 2024. Mn.
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