National Green Tribunal
R.L. Srinivasan vs Tamilnadu Transmission Corporation on 23 July, 2024
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
Item No.1 (i) & (ii):-
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Tuesday, the 23rd day of July, 2024.
(Through Video Conference)
Original Application No.67 of 2022 (SZ) &
I.A. No.162 of 2022 (SZ)
WITH
Original Application No.93 of 2022 (SZ)
IN THE MATTER OF
Kumaresan Sooluran
S/o. Sooluran
C-9, 1st street, Ramamoorthy Nagar, Ennore,
Kathivakkam, Ennore Thermal Station,
Thiruvallur- 600 057.
...Applicant(s)
Versus
1) M/s. Tamil Nadu Transmission Corporation
Rep. by its Chairman
A-10, Thiru. Vi. Ka. Industrial Estate,
SIDCO Industrial Estate,
Guindy, Chennai - 600 032.
2) The Union of India
Rep. by its Secretary to Government
Ministry of Environment, Forests & Climate Change
Indira Paryavaran Bhavan,
Jor Bagh, New Delhi.
3) Tamil Nadu Pollution Control Board
Rep. by its Member Secretary
No.76, Mount Salai, Guindy,
Chennai - 600 032.
4) The Public Works Department
Rep. by its Engineer-in-Chief.
Water Resources Organization
Chepauk, Chennai - 600 005.
5) Tamil Nadu State Coastal Zone Management Authority
Rep. by Member Secretary,
Director of Environment,
Chennai- 600 015.
...Respondent(s)
WITH
Page 1 of 14
R.L. Srinivasan
31/36, Porkali Amman Street,
Kattukuppam, Ennore,
Chennai - 600 057.
...Applicant(s)
Versus
1) M/s. Tamil Nadu Transmission Corporation
Rep. by its Chairman,
A-10, Thiru. Vi. Ka. Industrial Estate,
SIDCO Industrial Estate,
Guindy, Chennai - 600 032.
2) The Union of India
Rep. by its Secretary to Government
Ministry of Environment, Forests & Climate Change
Indira Paryavaran Bhavan,
Jor Bagh, New Delhi.
...Respondent(s)
O.A. No.67 of 2022:
For Applicant (s): Mr. A. Yogeshwaran.
For Respondent(s): Mr. P. Wilson, Sr. Adv. a/w.
Mr. S.T. Raja for R1.
Mr. Meyappan represented
Mrs. Me. Sarashwathy for R2.
Mr. S. Sai Sathya Jith for R3.
Dr. D. Shanmuganathan for R4 & R5.
O.A. No.93 of 2022:
For Applicant (s): Mr. A. Yogeshwaran.
For Respondent(s): Mr. P. Wilson, Sr. Adv. a/w.
Mr. S.T. Raja for R1.
Dr. Kuna. Suryanarayana for R2.
Judgment Reserved on: 21st December, 2023.
CORAM:
HON'BLE Smt. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Page 2 of 14
JUDGEMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member.
1. The Original Application [O.A. No.67 of 2022 (SZ)] has been filed by the applicant, alleging that the 1st Respondent/ Tamil Nadu Transmission Corporation (hereinafter referred to as 'TANTRANSCO') has dumped dredged sea sand, fly ash and construction debris inside the Kosasthalaiyar River in Ennore creek, which affects the tidal and river flow in violation of the Coastal Regulation Zone (CRZ) Clearance dated 01.11.2019 issued by the 2nd Respondent / Ministry of Environment, Forests and Climate Change (hereinafter referred to as 'MoEF&CC').
2. The said illegal dumping is causing disturbance to the movement of fishermen's boats impacting their livelihood. It is also alleged that the conditions imposed in the CRZ Clearance for the erection of transmission towers and transmission lines were violated though the clearance clearly stipulated that "Any physical infrastructure setup during construction period shall be removed simultaneously with completion of laying of each segment of the erection project".
3. The CRZ Clearance was issued for the erection of overhead transmission tower and transmission lines for 400 KV power excavation line from SEZ to Ennore Thermal Power Station (ETPS) expansion project, Ennore SEZ to North Chennai Pooling Station, ETPS expansion project to NC Pooling Station and 765 KV power evacuation line from North Chennai Thermal Power Station Stage - III (NCTPS-III) to NC Pooling Station at Ennore, Tamil Nadu. The overhead transmission lines having a total length of 39068.38 Meter, of which, 27244.11 Meter will fall under CRZ areas. The activity involves setting up of 124 Nos. of overhead towers, of which, 71 Nos. of towers falls under CRZ area. Totally, 101 Nos. of 400 KV towers and 23 Nos. of 765 KV towers are to be constructed.
Page 3 of 144. According to the applicant, the transmission lines for evacuation of electricity generated from a thermal power plant are an integral part of the thermal power plant, which has to be taken into consideration during the Environmental Impact Assessment (EIA) Study and the clearance has to be obtained for the thermal power project as a whole. Further, the Environmental Clearance (EC) obtained for the thermal power plants do not permit any power evacuation infrastructure including transmission corridors.
5. It is further alleged by the applicant that ECs for the thermal power plant have been obtained neither disclosing the alignment of the transmission infrastructure nor impact assessment or appraisal of such infrastructure. The availability of transmission infrastructure has been stated as a reason for choosing the site for ETPS expansion.
6. In order to ensure that the construction of these towers do not greatly interfere with the hydrology of the area or with the flow of water, it was mandated in the recommendations dated 19.08.2019 as noted below:-
a) NOC from the District Forest Officer should be obtained with reference to the transmission alignment and on the location of the towers, as to the effect that Mangroves are not disturbed.
b) NOC from the Public Works Department (PWD) and the Kamarajar Port should be obtained prior to the commencement of works.
c) The Pier Cap should be below the lowest water level.
d) Tidal flow of water should not be affected due to the project features.
e) As indicated in the EMP, tower construction locations to be planned to avoid interference into water courses and thereby avoid contamination due to construction.
Excavated earth to stored in the same location and will be back-filled around the tower foundation base.
7. However, the pier cap of the towers are not below the lowest water level, but has been raised above the water level. This is a serious issue as the water spread area of the floodplains is reduced because of these conversions.
Page 4 of 148. The applicant has also highlighted the violations said to have been committed by the TANTRANSCO, which are as follows:-
A. They have constructed transmission towers at locations that are entirely different from the locations permitted in the clearance, thus deviating entirely from the approved alignment illegally, and drastically altering the environmental impacts of the project.
B. Have illegally cleared mangroves and constructed towers in areas where mangroves were present.
C. Have dumped fly ash and construction debris to construct access roads, temporary housing and storage spaces, and platforms for erecting transmission towers at the illegal construction sites and have failed to remove the dumped material after erection of the tower.
D. They are illegally constructing roads to begin erection of transmission tower within the water body (Kosasthalaiyar River) by dumping construction debris and fly ash, thereby blocking tidal flow and movement of boats, and disrupting fishing livelihoods.
E. They have misled the district administration and police to secure police protection for an illegal project that damages the environment and harms fisher livelihoods F. The transmission towers have not obtained environmental clearance as part of the Environmental clearance obtained for the thermal power plants.
9. The transmission towers do not have the Environmental Clearance under the EIA Notification, 2006, though the transmission infrastructure has to be necessarily studied as part of the Environmental Impact Assessment (EIA) Study and the clearance has to be obtained for the Thermal Power Plant as a whole. Form - 1 of the EIA Notification in Para (1.20) requires the Project Proponent to explicitly disclose as to whether new transmission lines are required or not.
10. In so far as the ETPS Expansion is concerned, the Environmental Clearance dated 11.12.2019 was issued without a mandatory public hearing and this Tribunal vide its Judgment dated 17.09.2021 in Appeal No.06 of 2020, suspended the clearance and directed inter-alia the conduct of the public hearing.
Page 5 of 1411. It was also submitted that the Environmental Clearance for the thermal power plant has been obtained without disclosing the alignment of the transmission infrastructure, nor impact assessment or appraisal of such infrastructure. In fact, the availability of transmission infrastructure has been stated as a reason for choosing the site for ETPS expansion. The Project Proponents have in effect segmented an important part of the thermal power station and suppressed its impact during the clearance process and are now attempting to construct the same at wholly unapproved and ecologically sensitive locations without following the impact assessment procedure.
12. The major allegation is that the towers have been constructed at locations that are different from the locations specified in the report and the entire alignment has been changed. This illegal alteration of alignment is very significant because none of the towers - for the 400 kV and the 765 kV were to be located in Mangrove areas or areas classified as CRZ
- IA, which is evident from the clearance dated 01.11.2019. The 1st Respondent has also installed towers in the water body in areas that were not approved as part of the clearance.
13. It is also alleged that the 1st Respondent is proceeding with work rapidly and even the encroachment made is blocking the river, obliterated fishing grounds and impacted fisher livelihoods. The encroachment is also hindering the free movement of fishing boats and also interrupting tidal flow. Installation of a few pipes beneath the encroachment does nothing to aid the movement of boats or the natural flow of water. The officials of the TANTRANSCO claim that they are empowered by an order of the District collector - however, the district collector cannot issue any permissions that are not sanctioned in the CRZ clearance and he cannot authorise the blocking of the river. Further, the letter referred to viz., Rc.No.2039/2021/M2 dated 03.11.2021 pertains to construction of towers in Survey Nos. 178/B and 255, Ennore Village, Ponneri Taluk, Thiruvallur District. The current works are being undertaken inside the Kosasthalaiyar River at Ennore Creek at Survey No. 1556 and 1557 of Vallur revenue village.
Page 6 of 1414. In short, the contention of the applicant is that the construction activities of the TANTRANSCO are damaging the marine ecosystem more specifically mangroves in that area, interfering with the tidal exchange and shrinking backwaters.
15. Moreover, in the name of the construction of temporary structures, roads are being laid to facilitate the erection of towers. However, on completion of towers, the temporary structures are not being removed fully, impacting the free flow of water during the monsoon seas which in turn can result in inundation of the nearby areas.
16. In view of the violations cited, it is prayed by the applicant that, a. Direct the 1st Respondent to remove all the transmission towers erected in violation of the CRZ clearance dated 01.11.2019 and remove the soil, fly ash, debris and other materials dumped at the sites where transmission towers have been erected and restore the hydrology of the region.
b. Direct the 2nd Respondent to revoke the clearance dated 01/11/2019 in light of the violations committed by the 1st respondent.
c. Direct the 3rd Respondent to levy compensation for environmental harm and pollution caused by the 1st Respondent and prosecute the 1st Respondent for violations under the Environment (Protection) Act, 1986 and Water (Prevention and Control of Pollution) Act, 1974.
17. During the pendency of the Original Application, yet another applicant has filed O.A. No.93 of 2022 (SZ), highlighting the prayer sought relates to the illegal construction at Ennore Village and the tower in question is not the subject matter of O.A. No.67 of 2022 (SZ) which is limited to the towers in existence at that time with a prayer to remove the transmission tower constructed at Ennore Village (West of NCTPS Stage III) and inside the Kosasthalaiyar River and restore to its original state.
18. In as much as both the original applications relate to the installation of transmission towers in violation of the CRZ Regulation, the issues were taken up together and heard.
Page 7 of 1419. The TANTRANSCO (Respondent No.1) has filed a common reply, wherein they, before going into the merits of the case, explained their powers and duties conferred with them under the Indian Telegraph Act, 1885 and Electricity Act, 2003 to build, maintain and operate an efficient, coordinated, and economical intra-state transmission system. In the reply, it is contended that 19.1 The TANTRANSCO is in the process of executing the tower line projects viz., [1] 400kV Power Evacuation line (a total length of 37.467 Kms) :-
(i) Ennore SEZ 400/230 kV SS to ETPS Expansion 400/230 kV SS - 22 No. of towers,
(ii) Ennore SEZ 400/230 kV SS to North Chennai pooling station 765/400 kV SS - 51 No. of towers and
(iii) ETPS Expansion 400/230 kV SS to North Chennai Pooling station 765/400 kv SS - 09 No. of towers [2] 765kV Power evacuation line (a total length of 6.45 Kms) :-
765 kV DC line on DC towers with Hexa zebra conductor from proposed North Chennai Stage III plant to the North Chennai 765 kV Pooling station - 20 No. of towers.
19.2 The above said 400k and 765 kV Power evacuation Schemes have been approved by Tamil Nadu Government vide GO (Ms.) No.47 dt.27.09.2017 and G.O.Ms.No.35 Energy (A1) department dt.24.05.2019 respectively. That apart, clearance and approval from the Public Works Department to erect towers in Ennore creek and backwater have been obtained and Government Order has been passed vide G.O.(Ms.)No.191, Public works(R1) Department, dated 17.08.2020. Further necessary enter upon permission has also been obtained from the District Collector on 03.11.2021. Since the execution of the project is proposed in CRZ areas, the TANTRANSCO applied for CRZ clearance along with a detailed representation with regard to the projects and location of Page 8 of 14 towers. The Principal Secretary to Government, State of Tamil Nadu, Environment & Forests Department, vide its letter dated 19.08.2019, forwarded the papers for clearance under CRZ Notification to the National Coastal Zone Management Authority. Considering the proposal of the TANTRANSCO and the recommendations of the State Authority, the MoEF&CC vide its Lr. No. F. No. 11 -33/ 2019-IA-III, dated 01.11.2019 has accorded the clearance for erection of 71 towers proposed in CRZ area with certain conditions.
19.3 While granting the CRZ clearance, the MoEF&CC had imposed a specific condition that "Any physical infrastructure setup during construction period shall be removed simultaneously with the completion of laying of each segment of the erection project". For the execution of the project wherever there is no motorized path, a temporary approach road is laid using hume pipes and in compliance with the above condition, the approach road is being removed as and when the erection work is complete.
They ensured that no hindrance is caused in the flow of water to the fisherman in the erection of towers and if any hindrance is pointed out by the fishermen, the same is removed without any delay. Approach road has been laid for the locations viz., AP 15, AP 17, AP 30, and AP 07 under 400 kV project and AP 3 and AP 8 under 765kV project. The said approach roads have been removed upon the completion of the said towers.
19.4 Though the project is established in an eco-sensitive area, it is ensured by the Project Proponent that the Mangroves in the project area are not disturbed, and for the establishment of the towers, no Mangrove has been uprooted/destroyed. Further, it was presented before the authorities that if towers had to be laid in Mangroves areas, then Mangroves will be removed and replanted in the ratio of 1:6 and the same has been accepted and CRZ clearance has been granted by the MoEF&CC. As on date, Page 9 of 14 no Mangroves have been uprooted/ destroyed for the erection of towers.
19.5 While submitting the proposal for approval, the tower locations have been mentioned and the same has been approved by the Authorities. In the present case, TANTRANSCO has not laid any tower in violation of the statutory clearances.
19.6 So far as the specific claim of the Applicant in O.A.No.93 of 2022 (SZ) that the tower location mentioned in the Application is not an approved location as per CRZ Clearance is denied, as the said location has been approved by the PWD and as well in CRZ clearance. The TANTRANSCO has not violated the CRZ clearance and other statutory clearances and the work is being carried on in strict compliance with the said clearances. Towers are being laid ensuring that there is no hindrance/ disturbance to the free flow of water and movement of fishermen. Any hindrance that is caused during the erection of the towers is being immediately removed and the temporary approach road is also removed once the work is complete.
20. The MoEF&CC (Respondent No.2), in its common counter affidavit, have merely stated the procedure followed by them while granting the CRZ Clearance without adverting to the allegations made in the application.
21. Heard the learned counsel appearing for the applicant as well as the respondents.
22. The learned counsel Mr. A. Yogeshwaran appearing for the applicant has stressed that the construction activities of the TANTRANSCO, especially the temporary structures are blocking the free flow of Kosasthalaiyar River near the Ennore Creek area and he has elaborately explained that in several locations, towers have been erected in locations away from the permitted locations, besides installation of more towers than the permitted. He has also highlighted that the TANTRANSCO have Page 10 of 14 utilized the fly ash for filling up the area prior to the construction which can result in serious pollution of the area.
23. The learned counsel for the applicant also stated that while obtaining the Environmental Clearance for the thermal power plant, the Project Proponent has not furnished the details of the transmission lines to be erected, which is in violation of the guidelines. He has reiterated the violations which have been stated in detail in the Original Application. It was prayed to relocate the towers and remediate and restore the area to its original state.
24. Mr. P. Wilson, the learned Senior Advocate appearing for the TANTRANSCO has admitted that there were some minor deviations in the locations of the transmission towers which have to be done based on technical necessity and stated that since the notification permits regularization of the deviation, they have submitted an application before the MoEF&CC in this regard.
25. In reply, the learned counsel appearing for the applicant submitted that the deviation cannot be regularized.
26. The main issue in both the original applications is the deviation of locations of transmission towers in locations other than what has been permitted by the MoEF&CC while granting the CRZ Clearance.
27. The concern raised by the applicant in so far as the blocking of the creek area through the temporary structures was addressed by the Tribunal by passing an interim order to remove the temporary structures fully to ensure the free flow of water in Kosasthalaiyar River in the Ennore Creek area.
28. The claim of the applicant that this Tribunal in Appeal No.06 of 2020 suspended the Environmental Clearance dated 11.11.2019 and directed inter-alia to conduct of public hearing and the same is under consideration of the MoEF&CC is also taken into account.
Page 11 of 1429. Regarding the prayer that the transmission towers have to be removed and relocated in view of the violations, the Tribunal takes into account that the Project Proponent vide its letter dated 30.10.2023 has made an application for ratification of the deviation and the same is under consideration of the MoEF&CC.
30. In the event the applicant is aggrieved by the orders to be passed by the MoEF&CC on the application of the Project Proponent, it is open to them to challenge the same in the manner known to law and at this point of time, the intervention of this Tribunal is not necessitated.
31. Adverting to the allegation that the mangrove trees were destroyed during the construction of the platform for the transmission towers, the Project Proponent had indicated that they are prepared to plant 06 No. of trees for every mangrove tree that has been damaged, if any.
32. In as much as it has been admitted that some of the Transmission Towers and temporary structures have been constructed in mangrove areas, its impact on the growth and survival of mangroves cannot be denied. Considering the importance of the mangrove ecosystem and the ecosystem services they render, the Tribunal is of the opinion that the Project Proponent is responsible for ensuring the integrity of the mangrove cover in the area as well as increase the mangrove area in the region after completion of the erection of transmission lines.
33. In this regard, if one observes the environmental law has seen a significant shift from fault-based to no-fault liability principles. This transition aims to address inherent challenges in holding polluters accountable for certain exceptions relating to reasonable cases, third-party risks, and victim negligence. This shift is apparent through statutes like, The Public Liability Insurance Act, 1991 which expressly embrace no-fault liability. The applicability of no-fault liability in cases involving construction activities in fragile ecosystems such as mangroves Page 12 of 14 and creek areas serves a dual purpose, as it upholds the duty of care for entities that are undertaking such activities even in the absence of proven negligence. Secondly, it ensures that environmental compensation is levied for unquantifiable damages also.
34. In the instant case, it is found that there were violations committed by the Project Proponent, as they erected the transmission towers in deviation from the original locations spilling into the prohibited CRZ area. Though they have made an application for ratification of the deviation made by them, for having violated without appropriate sanction, they are liable to pay a sum of Rs.25,00,000/- as a penalty. The above penalty is imposed even presuming that the ratification would be in favour of the Project Proponent, it becomes payable for their act under the no-fault liability principle.
35. In view of the above,
(i) The Original Applications [O.A. Nos.67 & 93 of 2022 (SZ)] are disposed of subject to the outcome of the application made by the Project Proponent/TANTRANSCO before the MoEF&CC.
(ii) The MoEF&CC is directed to consider and pass appropriate orders, if not already passed, within a period of 4 (Four) weeks.
(iii) The Project Proponent/TANTRANSCO is directed to pay a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) to be remitted to the Principal Chief Conservator of Forests, Forest Department for the violations.
(iv) Upon such deposit, the Forest Department is directed to utilize the said amount to increase the coverage of mangroves in the impugned area.
Page 13 of 1436. With the above directions, both the Original Applications [O.A. Nos.67 & 93 of 2022 (SZ)] are disposed of. Consequently, the interlocutory application [I.A. No.162 of 2022 (SZ)] is also closed.
Sd/-
Smt. Justice Pushpa Sathyanarayana, JM Sd/-
Dr. Satyagopal Korlapati, EM Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.67 of 2022 (SZ) & I.A. No.162 of 2022 (SZ) O.A. No.93 of 2022 (SZ) 23rd July, 2024. Mn.
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