Karnataka High Court
Mr R Bhasham vs Government Of Karnataka on 26 September, 2013
Author: N Kumar
Bench: N Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER 2013
PRESENT
THE HON'BLE MR.JUSTICE N KUMAR
AND
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
WRIT PETITION No. 9820/2012 (GM-FOR-PIL)
C/W
WRIT PETITION No.13065/2012 & 13069/2012
(GM-POL-PIL)
IN WP No.9820/2012
BETWEEN:
1. MR.R.BHASHAM,
ADVOCATE,
AGED ABOUT 64 YEARS,
ENROLLMENT No.MYS 38/73,
R/o BASAVANAGUDI STREET,
HOLENARASIPUR TOWN,
HASSAN DISTRICT.
2. SRI H.R.MANJUNATHA,
S/o RANGTAIAH, ADVOCATE,
AGED ABOUT 33 YEARS,
R/o KERALAPURA ROAD,
Dr.AMBEDKAR NAGAR,
HOLENARASIPUR TOWN,
HASSAN DISTRICT.
3. SRI SHIVANANJE GOWDA,
S/o DEVE GOWDA,
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AGED ABOUT 52 YEARS,
R/at HARIHARAPURA VILLAGE,
HALEKOTE HOBLI,
HOLENARASIPUR TALUK,
HASSAN DISTRICT. ...PETITIONERS
(SRI C.R.GOPALASWAMY, ADV.)
AND:
1. GOVERNMENT OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE - 560001.
2. DEPARTMENT OF FOREST
ECOLOGY & ENVIRONMENT,
REP. BY ITS SECRETARY,
M.S.BUILDING,
BANGALORE - 560001.
3. PRINCIPAL CHIEF CONSERVATOR OF FORESTS,
"ARANYA BHAVAN"
MALLESWARAM, 18TH CROSS,
BANGALORE - 560003.
4. DEPUTY CONSERVATOR OF FORESTS,
HASSAN DIVISION, HASSAN.
5. UNION OF INDIA,
MINISTRY OF ENVIRONMENT & FORESTS,
PARYAVARANA BHAVAN,
NEW DELHI - 110001,
REP. BY ITS CABINET SECRETARY.
6. M/s SUZLON ENERGY LIMITED,
No.1/1A, I FLOOR,
PRESTIGE TOWERS,
No.100, FIELD MARSHALL K.M.KARIYAPPA ROAD,
(RESIDENCY ROAD)
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BANGALORE. REP. BY ITS
AUTHORISED OFFICER. ...RESPONDENTS
(BY SRI D.VIJAYAKUMAR, AGA FOR R1 - R4
SRI V.K.NARAYANA SWAMY, ADV. FOR R5
SRI S.P.KULKARNI, ADV. FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO DIRECT THE R1, R3 AND R4 TO TAKE
NECESSARY ACTION FOR TERMINATION OF THE
AGREEMENT DATED 23.04.2008 ENTERED BETWEEN
R4 AND R6 AS THE SIXTH RESPONDENT IS ACTING IN
CONTRAVENTION OF THE TERMS AND CONDITIONS OF
AGREEMENT VIDE ANNEX-B.
IN WP No.13065/2012 & 13069/2012
BETWEEN:
1. MANJEGOWDA S/o MARIGOWDA,
AGED ABOUT 45 YEARS, AGRICULTURIST,
RESIDENT OF KAMASAMUDRA VILLAGE,
HOLENARASIPURA TALUK,
HASSAN DISTRICT.
2. SHASHIKUMAR S/o PUTTASWAMAPPA,
AGED ABOUT 38 YEARS, AGRICULTURIST,
RESIDENT OF HUVINAHALLI VILLAGE,
HOLENARASIPURA TALUK,
HASSAN DISTRICT. ...PETITIONERS
(SRI A.V.GANGADHARAPPA, ADV.)
AND:
1. KARNATAKA STATE POLLUTION
CONTROL BOARD,
REGIONAL OFFICE, PLOT No.1-A,
B.KATIHALLI INDUSTRIAL AREA,
B.M.ROAD, HASSAN - 573201.
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2. THE GOVERNMENT OF KARNATAKA,
REP. BY COMMISSIONER & SECRETARY,
FOREST DEPARTMENT, MULTI STORIED BUILDING,
Dr.AMBEDKAR ROAD,
BANGALORE - 560001.
3. THE DISTRICT FOREST OFFICER,
DEPARTMENT OF FOREST,
HASSAN.
4. THE DEPUTY COMMISSIONER,
HASSAN DISTRICT,
HASSAN.
5. M/s SUZLON ENERGY LTD.,
REP. BY ITS MANAGING DIRECTOR,
No.160/12, ANCHORAGE-2,
3RD FLOOR, RICHMONG ROAD,
BANGALROE - 560025. ...RESPONDENTS
(BY SRI D.NAGARAJ, ADV. FOR R1
SRI D.VIJAYAKUMAR, AGA FOR R2 - 4
SRI S.P.KULKARNI, ADV. FOR R5)
THESE WRIT PETITIONS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO DIRECT RESPONDENTS TO FORTHWITH
STOP THE BLASTING OF ROCKS BY USING LANDMINE
AND OTHER DETONATORS ETC., DISMANTLE AND
REMOVE ALL THE WINDMILLS WHICH HAVE BEEN
ERECTED FOR THE PRODUCTION OF WIND ENERGY ON
THE HILLOCKS ADJACENT TO THE VILLAGES OF
PETITINERS AND TO RESTORE THE HILLY AREAS TO
THEIR ORIGINAL CONDITION IN ORDER TO MAINTAIN
ECOLOGICAL AND ENVIRONMENTAL BALANCES AND
THEREBY ALLOW WILD ANIMALS, WILD PLANTS AND
THE RESIDENTS OF THE AREA TO LIVE PEACEFULLY
AND WITHOUT IN ANY MANNER BEING AFFECTED BY
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THE ENVIRONMENTAL IMBALANCE CAUSED BY THE
R5.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, N KUMAR J., MADE
THE FOLLOWING:
ORDER
These two writ petitions are filed in public interest. W.P. No. 9820/2012 is filed by two Advocates against a common order seeking a writ of mandamus directing the respondent Nos.1, 3 and 4 to take necessary action for termination of the agreement dated 23.04.2008 entered into between Respondent Nos.4 and 6 as the 6th respondent is acting in contravention of the terms and conditions of Agreement and to declare that the Wind Mill Power Project proposed to establish in the Hassan District, more particularly Holenarasipura Taluk is unscientific as it causes serious ecological imbalance to the area in and around.
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2. In W.P. No. 13065 and 13069/2012, two agriculturists are seeking a writ of mandamus to the respondents to forthwith stop the blasting of rocks by using landmine and other detonators, etc., dismantle and remove all the windmills which have been erected for the production of wind energy on the hillocks adjacent to the villages of petitioners and to restore the hilly areas to their original condition in order to maintain ecological and environmental balances and thereby allow wild animals, wild plants and the residents of the area to live peacefully and without in any manner being affected by the environmental imbalance caused by the 5th respondent.
3. In substance, the relief sought is to dismantle all the windmills which are set up by M/s. Suzlon Energy Limited - the 6th respondent in the first batch of writ petition who is the 5th respondent in the 7 second batch (for short hereinafter referred to as 'the Company').
4. The case of the petitioners in W.P. No.9820/2012 is, the Company has approached the Karnataka Government seeking to establish power project in Karnataka. As the proposed project has to be set up in various areas, the Government called upon the Department of Forest to deal with the matter. Accordingly, the Chief Conservator of Forest, Bangalore vide letter dated 31.01.2006 submitted a proposal for approval of Government of India under Section 2 of the Forest Conservation Act, 1980 for diversion of 38.855 Hectares of forest land in Kalenahalli Block (Maddurugudda) Forest of Holenarasipura Taluk, Hassan District for establishment of 17.40 MW (revised 43.50 MW) wind power project in favour of the Company. In para 3 of the writ petition they have set out the name of the 8 Village, Survey Number, extent of the land, which was required to set up the wind mill by the Company. The Government of Karnataka has recommended to the Government of India. The Government of India has given its approval for diversion and the same was communicated to the Chief Conservator of Forest, Bangalore. Thereafter, compliance report was submitted to the Government of India and accordingly by a letter dated 16.04.2008 had conveyed its approval for diversion of forest land. Accordingly, sanction was accorded under Section 2 of Forest (Conservation) Act, 1980. After completion of the formalities, the 4th respondent - Deputy Conservator of Forest has entered into a lease/rent agreement vide No.1/2008-2009 dated 23.04.2008. In addition, the Government of India as well as Government of Karnataka has accorded permission for establishment of wind mill power projects in Mallappanabetta Forest area. The grievance of the petitioners is, the 9 procedure which is prescribed and the stipulations in the lease deed are not complied with. Even after three and half years, the project has not been completed or fully utilized by the Company. Hassan District is a semi-forest area, the project is established in Holenarasipura Taluk. Maintaining live-stocks such as bullocks and buffaloes for the purpose of agriculture is inevitable. The semi-forest area where the wind mill power project proposed to be established is meant for grazing cattles. The destruction is caused by the Company which has also encroached upon the forest area beyond stipulated extent. No action is taken against them. A legal notice came to be issued to the Chief Secretary, Government of Karnataka. There is no reply. The proposed project is not worth when compared to the loss that is going to be caused to the environment as well as ecology. In fact, wild animals like cheetah, wild bore, fox and wolfs started entering the villages. 10 The Company has started excavation in contravention of the terms and conditions enumerated in the agreement. At the time of formation of service road, the Company has unnecessarily removed the fruit bearing trees and bushes. One of the conditions stipulated in the agreement was the formation of service road shall not damage either the environment or ecology so that ecological balance will be maintained and also safety of wild animals and birds will be protected but the Company has bulldozed entire flora in the forest area by whimsical manner resulting in entering of wild animals like cheetahs in the villages. Yet another condition is the Company shall not make any deep cut and use blasting enabling them to form the road by making use of explosives. Deep cuts were made upto 25 feet, which destroys the source of bore-wells which are situated in the agricultural lands of farmers. It is mandatory that the Company shall not cut the forest or trees in 11 forest or private land without the permission of the Forest Department. The Department has registered a case against the Company for cutting the trees without the permission. The Company has not deposited the amount which are stipulated in the lease agreement. The Company has cleared the forest area in an area more than what was granted to them. The Company virtually deviated from the original approved plan. The complaint lodged to the authorities did not yield any result and therefore, they are constrained to approach this Court by way of public interest litigation.
5. In the connected writ petitions, it is contended the Company is carrying on its business in the generation of wind mill energy, without obtaining any permission from any of the respondents including the Karnataka State Pollution Control Board, Government of India and Government of Karnataka blasting is 12 done in the hillocks for forming roads, constructing sheds and carrying out building activities and thereby changing the nature of the area by formation of roads, channels, culverts for the transportation of materials in order to erect and install windmills for production of electrical energy. The erection and installation of windmills for production of electrical energy will have serious repercussions on the ecological system. Having a result of these activities, the normal living of wild animals got disturbed and without any alternative in order to find food they started straying in to villages and agricultural fields, causing lot of loss of cattle. Besides they also attacked women, children and the people. Though these incidents have been reported in daily newspapers, no action is taken either by respondents or by any other agencies. After the erection of windmills they started rotating all through the day causing lot of noise and have disturbed the peace and tranquility in the area and 13 also resulting in ecological imbalances. The Company has not even obtained clearance and permission from the Karnataka State Pollution Control Board. The Company has violated all the law, rules and regulations while destroying the hillocks surrounding the villages and undertaking the work, erecting and installing windmills, formation of roads, constructing buildings, etc. The entire ecological system has been impaired. The eroded soil has filled the tanks, streams and dams with silt and thereby the depths of the tanks and streams have reduced. This has caused the depletion of underground water levels. The normal living conditions of wild animals have been seriously disturbed. The normal growth of wild and rare species of plants and shrubs have been affected, besides the rare species becoming extinct. As the representations have no effects, they approached this Court by way of public interest litigation.
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6. After service of notice, the Company has entered appearance and filed the statement of objections. They have traversed all the allegations made in the writ petitions. They denied all the allegations. They have stated that the Company has been running the windmill industry smoothly, well within the purview of Law in accordance with the permission granted by the Central as well as the State Government. Therefore, they have not committed violation of any law or rules. The work was undertaken in terms of the agreement, sanction orders and approval orders issued by the competent authorities from time to time. There is no danger to human life nor there is any threat to forest animals. In fact, the petitioners have not challenged the sanction orders by the Forest Department or even the agreement entered into between the Government authorities and the Company. They have complied with all the terms of the agreement and they have produced evidence in 15 the case. They have not encroached any land and therefore, they sought for dismissal of these writ petitions.
7. Sri. C.R. Gopala Swamy, learned Counsel appearing for the petitioners contended that two years is the period prescribed for completing the project, failing which the agreement shall stands cancelled. The project is not implemented within two years. The authorities committed an error in not terminating the contract. The Company is indulging in blasting activities, which has seriously affecting the environment which has spoiled the streams and water bodies. In fact, they have encroached the land which is not leased to them thus preventing the cattle of the villagers from grazing which has also resulted in wild animals, for want of space getting into the villages and causing damages and threat to live stock as well as human beings. Because of the establishment of 16 this windmill the whole ecological plants in the area is disturbed. The Company has not performed its obligation in terms of the lease deed and no action is taken by the authorities and therefore, he submits the agreement entered into with the Company by the authorities requires to be cancelled.
8. Sri. A.V. Gangadharappa, learned Counsel reiterating the aforesaid contentions further submitted that the villagers in and around the said hillock are seriously affected by the establishment of windmill. Their right to live is affected. Before granting permission the authorities have not issued any public notice calling for their objections which is a must. Because of the activities of formation of road, construction of building, erection of windmill there is an environmental imbalances in the whole area. It has also resulted in noise pollution, air pollution and no clearance from the Pollution Control Board is 17 taken. The news paper cutting have been produced to show the number of instance for the wild animals attacking the villagers and their live stock. In spite of several representations made to the authorities, no steps are taken and therefore, he submits a case for interference by this Court is made out.
9. Per contra, Sri. S.P. Kulkarni, learned Counsel appearing for the Company submits, it is a policy decision of the Government to set up windmills in this area. The Company was successful in getting the contract. They have performed their part of the obligations under the contract. Now, they have established windmill. There is no breach committed by them. When the Government or its instrumentality have not performed their obligations in terms of the contract, the Company cannot be held responsible and the petitioners have to proceed against them.
The project which is now implemented is
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environmentally clear. There is no pollution of air,
water and noise as contended by them. In fact, one of the villager filed a suit for injunction restraining the Company from setting up the project, ex-parte order of temporary injunction granted, prevented the Company from proceeding further. They appeared, contested the matter and the interim order was vacated. Now the windmill has been established and they have been functioning. Therefore, he submits there is no substance in any of the contentions raised by the petitioners.
10. From the aforesaid facts and the material on record, it is clear the Government of Karnataka has taken a policy decision to set up windmills in order to solve the problems of shortage of power in the State of Karnataka. As the windmill has been set up in the forest area, permission of the Central Government is mandatory. Therefore, they sent the proposal to the 19 Government of India. The Government of India after considering the proposal, has accorded the requisite permission for diversion of the Forest area for the purpose of setting up of windmill. It is thereafter, the 4th respondent has entered into a lease deed leasing the requisite land of 38.855 Hectors of land in Kalenahalli Block (Maddurugudda) Forest of Holenarasipura Taluk. The material on record discloses, the Company has complied with the terms of the lease. As per the stipulation in the lease deed, they have to pay lease rent of Rs. 30,000/- per MW which is to be utilized in providing Gas connection to the local villagers under the Joint Forest Management Programme and other conservation measures. In respect to the stipulation, the Company has paid a sum of Rs.13,05,000/- towards lease rent, in the form of Bankers Cheque bearing No. 917697 dated 07.08.2007 drawn on Citi Bank at par in favour of Principal Chief Conservator of Forests, Bangalore. 20 The Company shall pay the cost of raising compensatory afforestation of the value at the time of approval i.e. Rs.54,200/- per hector. Agreeing, they have paid a sum of Rs.21,05,941/- towards compensatory afforestation charges by way of Bankers cheque bearing No.917696 dated 07.08.2007 drawn on Citi Bank, drawn in favour of Principal Chief Conservator of Forests, Bangalore. The Company has to pay net present value fixed by the Government vide Notification dated 17.04.2004. As against this requirement the Company has paid an amount of Rs.2,54,22,700/- towards net present value in the form of Bankers cheque bearing No. 922778 dated 07.08.2007 in favour of Principal Chief Conservator of Forests, Bangalore. As per the terms of the agreement about 65 to 70% of the leased area in the wind farm shall be utilized for developing Medicinal Plant Gardens if possible, by the State Forest Department at the project cost. For this 21 purpose, the help of National Medicinal Plant Board in creating corridors of medicinal plant gardens may be taken. The intervening areas between two wind mills footprints is also be planted up by dwarf species of trees at the project cost. This is an obligation cast on the State Forest Department at the cost of the Company. The Company is willing to bear the cost but the State can take steps only after the installation of all the wind mills. The total forest area utilized for the project shall not exceed 38.855 hectares. In case the land is not utilsed for the stipulated purpose the land will be resumed back to the Forest Department.
11. The material on record and the pleadings of the parties clearly shows, after entering into the lease agreement, the Company has cut and removed the trees, formed roads and has installed these wind mills. Therefore, this provision is complied with. 22
12. The Company shall ensure that there will be no damages to the available for wild life. It is nobody's case by these acts wild life in the forest area is damaged. The grievance is because of the establishment of wind mill, for want of space in the hillock, the wild animals are entering into the villages. From the aforesaid material on record, it is clear that the Company has complied substantially the terms and conditions stipulated in the lease agreement and they have established the wind mill. It is in operation. That is the reason why it is contended that after the wind mill became operational, it is resulting noise pollution, water pollution and air pollution. It is contended by relying on the endorsement issued by the authorities that a case is registered against the company for felling trees without permission. What is produced is a show cause notice and the Company has submitted its reply. If they have violated any terms of the lease or acted in contravention of the law, the law will take its course. 23 On that ground, a valid agreement entered into and implemented at a considerable cost, cannot be terminated at the instance of the petitioners.
13. In so far as the contention, by establishment of the wind mill the villagers are prevented from using the area for grazing cattles is concerned, it has no substance. In law, the villagers cannot use the forest area for the purpose of grazing their cattle. In fact, Section 24 of the Karnataka Forest Act, 1952 prohibits such trespasses or pastures cattle, or permits cattle to trespass for the purpose of grazing. That is the reason why in all village a particular land is earmarked for grazing cattles. Merely because near a village there is a forest, the villagers cannot lay any claim to get their cattle grazed in the said forest. It is totally prohibited and therefore, there is no substance in the said contention.
14. Learned Counsel appearing for the Pollution Control Board has pointed out that these wind mill 24 projects fall within the green category of industry. It is environmental friendly. In fact, the Company has produced the letter dated 20.03.2006 of Karnataka Renewable Energy Development Limited to the Company clarifying the pollution clearance for the wind power project. Relying on the clarification letter issued by the Ministry of Non-Conventional Energy Sources dated 20.11.1997, it is stated 'the power projects based on Non-Conventional Energy Sources, as the main feed stock, are not required to take environmental clearance as per EIA Notification, 1994, including Pollution Clearance'. The Ministry of Environment and Forest has issued a Corrigendum on 09.08.2007 stating that as per EIA Notification 2006 Environmental Clearance is not required for wind mill project. Therefore, the contention that the project is to be dismantled for want of pollution control permission is without any basis.
15. The Apex Court in the case of Narmada Bachao Andolan etc. etc. Vs. Union of India and others 25 reported in AIR 2000 SC 3751 at para 279 has held as under :
"There is and has been in the recent past protests and agitations not only against hydel projects but also against the setting up of nuclear or thermal power plants. In each case reasons are put forth against the execution of the proposed project either as being dangerous (in case of nuclear) or causing pollution and ecological degradation (in the case of thermal) or rendering people homeless and possess adverse environment impacts as has been argued in the present case. But then electricity has to be generated and one or more of these options exercised. What option to exercise, in our Constitutional framework, is for the Government to decide keeping various factors in mind. In the present case, a considered decision has been taken and an Award made whereby a high dam having on FRL of 455 ft. with capability of developing hydel power to be constructed. In the facts and circumstances enumerated hereinabove, even if this Court could go into the question, the decision so taken cannot be faulted".26
16. Therefore it is clear, it is for the Government to decide keeping various factors in mind what option to exercise for the purpose of generating electricity and the demand by the public at large. Karnataka is an Industrially advanced State. It has numerous hydel power projects as well as thermal projects. In spite of the same, the requirement of the industries and the people at large is not met. It is in this background, if the Government has taken a policy decision to permit generation of electrical energy by establishment of wind mill, it cannot be found fault with by this Court. In fact, the petitioners are not challenging the said policy decision. Unless such a policy decision is shown to be arbitrary or effective, or offends fundamental rights of citizens, it is settled law that the Court should not interfere with such policy decision. Not only these petitioners have not challenged the policy decision, they have also not challenged the recommendations of the Government, the approval granted by the Central 27 Government for establishment of such windmill in the forest area after permitting the forest land to the said purpose. It is only after substantial implementation of the project i.e. after cutting the shrubs and trees for the formation of roads, and after erection of wind mills these petitioners are before this Court complaining of air, noise and water pollution. The very electricity generated by this process is meant for the public at large. It is also equally settled private interest should yield to the public interest. When once the Company has performed its obligation under the terms of the lease deed, paid substantial amount to the Government in terms of the stipulation contained in the lease deed and has spent huge amount for formation of roads in the hillock area and after they have installed and commissioned the wind mill, it will not be in public interest, to terminate such contract which are validly entered into, power being generated in the said process. If still there are any violations by the Company, it is open to the authorities to initiate such action to prevent 28 the re-occurrence of such violations and also take action against the Company for the violation that have already taken place.
17. Under these circumstances, we do not find any merits in these writ petitions. Accordingly, these writ petitions are dismissed.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE Rbv/-