Bombay High Court
Kharghar Vikhroli Transmission ... vs Union Of India on 4 February, 2021
Bench: A.A. Sayed, Surendra Pandharinath Tavade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO.96276 OF 2020
Kharghar Vikhroli Transmission Private Ltd. ....Petitioner
Versus
The Union of India & Ors. ....Respondents
Mr. Saket Mone, Mr. Subit Chakrabarti, Vishesh Kalra and Abhishek
Salian i/b Vidhi Partners for the Petitioner.
Mr. Rui Rodrigues a/w Mr. Parag Vyas, Karuna Yadav for the Respondent
No.1- Union of India.
Mr. Pheroze F. Mehta a/w. Ms. Rishika Harish, Amicus Curae.
Mrs. Ashwini. A. Purav, AGP for the Respondent-State.
CORAM : A. A. SAYED AND SURENDRA P. TAVADE, JJ.
DATE ON WHICH JUDGMENT IS RESERVED: DECEMBER 22, 2020
DATE ON WHICH JUDGMENT IS PRONOUNCED: FEBRUARY 04,
2021
JUDGMENT (PER SURENDRA P. TAVADE, J.) :
. Rule.
2. Rule made returnable forthwith. By consent of the parties, heard
finally.
3. The Petitioner by way of this present Petition, seeks directions to
the Respondent Authorities to permit the Petitioner to carry out work of its
project being the proposed 400 KV Kharghar Vikhroli Transmission Line
for strengthening of Mumbai Transmission System in accordance with the
permissions granted to it with the leave of this Court.
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4. The Petitioner is incorporated as a Private Limited Company, set up
as a Special Purpose Vehicle for the implementation of the project of
setting up of 400 KV Vikhroli Receiving Station and associated incoming
transmission lines for strengthening of Mumbai Transmission System.
5. Respondent No.1 is the Union of India through its Ministry of
Environment and Forest, being nodal agency in the administrative
structure of the government for the planing, promotion, co-ordination and
overseeing the implementation of India's environmental and forestry
policies, including but not limited to grant of environment clearance /CRZ
Clearance. Respondent No.2 is Maharashtra Coastal Zone Management
Authority constituted under CRZ Notification 1991 under the provisions of
Environment (Protection) Act, 1986 ("EPA"). Respondent No. 3 is the
State of Maharashtra. Respondent No.4 is the Chief Conservator of Forest
(Mangroves Cell). Respondent No.5 is an Ofcer of Respondent No.3.
Respondent No.6 is wholly owned corporate entity of the State of
Maharashtra.
6. It is stated that the entire proposed 400 KV Kharghar Vikhroli
Transmission Line runs in the East West direction and about 31 towers
would fall under CRZ areas out of which about 26 towers are likely to
affect mangrove areas. Each transmission line tower having dimension of
16 m x 16 m has four legs and each leg rests on a pile type foundation of
about 1.5 to 2 mtrs diameter. The height of towers shall be approximate
50 m and distance between two towers shall be approximately 350 mtrs.
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About 1184 mangrove trees are likely to be affected by the proposed 400
KV Kharghar Vikhroli line. Adequate mitigation measures along with
mangrove conservation plan have been incorporated by BNHS in the EIA
report to ameliorate and reduce adverse impact on mangroves. The loss
of mangroves could be compensated by undertaking afforestation at
appropriate and suitable location. Although the statutory scheme
contemplates compensatory afforestation at a rate of five times the
number of trees affected that is (6000 saplings in lieu of 1184 trees in the
present case), the Petitioner intends to plant about 10000 saplings, being
a responsible and environmentally conscious organization.
7. It is contended that this Court has issued several directions in
regard to the preservation of the mangroves in the State of Maharahstra in
Public Interest Litigation No. 87 of 2006, vide order dated 17 September
2018. The Court has directed that there shall be a total freeze on the
destruction and cutting of mangroves unless it is necessary for the public
need or public interest. In the light of such directions the Petitioner has
filed the present Petition.
8. It is contended that the proposed project is one of great public
importance to the State of Maharashtra given that the power load growth
of Mumbai and its suburbs has been increasing at a exponential rate. The
said project will be bring about 1,000 MW of power into the city thereby
providing competitive reliable power supply from outside Mumbai for the
benefit of the consumers residing in the area and would further support
stabilization of power system network in the city of Mumbai, without
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adding more generation capacity in Mumbai or nearby towns. The project
is to be completed in a time bound manner by March 2022. The project is
as such the need of the hour as execution of such a public utility project
will help the city of Mumbai in getting economic power from other sources,
thus benefiting the consumers of Mumbai in terms of assuring 24X7
supply at competitive rates.
9. It is contended that the project has been granted all necessary
clearances and permissions as required under law for commencing and
carrying out the said Project. The same have been granted by the
respective statutory authorities, keeping in mind the environmental
factors. Considering that the site of the project was affected by CRZ-1
classification, an application was made in compliance of the provisions of
the CRZ Notification, 2011 in Form-1 for grant of CRZ clearance. The
proposal of the said project was considered by the Respondent No.2 and
it was pleased to recommend the project for grant of CRZ clearance
subject to the terms and conditions contained therein.
10. It is contended that this Court has passed an order dated 06
October 2005 in Public Interest Litigation No. 87 of 2006, and a complete
freeze was imposed in development activities in areas affected by
mangroves. The said order came to be modified by a further Order dated
27 January 2010, wherein this Court was pleased to direct that nothing
would be prevent statutory bodies to approach competent authorities to
seek permission for their respective projects as required in accordance
with law for the projects in mangrove area and that such application would
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be considered strictly in accordance with law keeping in mind the principle
of sustainable development and that grant of such permission would be
subject to the approval of this Court.
11. In furtherance of the order dated 27th January 2010, this Court had
been pleased to grant similar permissions in fit cases wherein the
Applicants / project proponents have sought to execute projects of
bonafide public utility:p-
(i) Order dated 2nd March 2015 in NM (L) No. 75 of 2015;
(ii) Order dated 10th July 2015 in NM No. 213 of 2013;
(iii) Order dated 12th January 2016 in NM (L) No.869 of 2015;
(iv) Order dated 22nd November 2016 in NM (L) No. 784 of 2015;
(v) Order dated 22nd November 2016 in NM No.406 of 2016;
(vi) Order dated 22nd November 2016 in NM No.404 of 2016;
(vii) Order dated 28th November 2016 in NM No. 307 of 2016;
(vii) Order dated 23rd March 2018 in NM No.153 of 2018;
Thereafter, by a Judgment and Order dated 17 th September 2018 in
Public Interest Litigation No. 87 of 2006, this Court was pleased to
dispose of the said PIL, with various findings and directions. Paragraph 83
(viii) of the said Judgment provided that no destruction of mangroves
could be take place unless this Court deemed it necessary for the public
good or public interest. The said paragraph reads as under:p-
"In view of applicability of public trust doctrine, the State is duty
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bound to protect and preserve mangroves. The mangroves
cannot be permitted to be destructed by the State for private,
commercial or any other use unless the Court fnds it necessary
for the public good or public interest;"
12. Learned Counsel appearing on behalf of the Petitioner has taken us
through the various permissions granted to the Petitioner by concerned
authorities, which would permit the Petitioner to remove mangroves with
condition to undertake re-plantation. It is submitted that the project is of
vital importance and immense public interest and if orders are not passed
by this Court as prayed for, public interest would be severely prejudiced.
The learned Counsel has relied on orders passed in (i) Maharashtra
State Road Development Corporation Ltd. V/s. Union of India and
Ors.1 (ii) Mumbai Metropolitan Region Development Authority V/s.
Union of India and Ors.2 (iii) Jawaharlal Nehru Port Trust V/s. Union
of India,3 wherein this Court had granted permissions to remove the
mangroves to the extent as prayed, considering the public interest and
importance of the public project involved.
13. Learned Counsel has also relied upon orders passed by the Co-
ordinate Benches of this Court in the cases of (i) Maharashtra State
Road Development Corporation Ltd. V/s. Union of India and Ors.4
(ii) Maharashtra Maritime Board V/s. Union of India and Ors. 5
(iii)
Mumbai Metropolitan Region Development Authority V/s. Union of
India and Ors.6. All above Writ Petitions are allowed by the Division
Bench of this Court headed by Justice B. R. Gavai as his Lordship then
1 Writ Petition No.2189 of 2019 decided on 19.12.2019.
2 Writ Petition No. 2188 of 2019, 2019 SCC Online Bom 6278.
3 Writ Petition/LD/VC (L) No. 228 of 2020, decided on 30 July 2020.
4 Writ Petition (L) No. 17 of 2019, decided on 08.02.2019.
5 Writ Petition (L) No. 44 of 2019.
6 Writ Petition (L) No. 741 of 2019, decided on 12.03.2019.
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was. In all above cases, the issue of cutting of mangroves was involved
and the Division Bench was satisfied that the project was of vital
importance and in public interest and with the arrangement made by the
Petitioners and the stipulations made by the Respondents therein,
whereby provisions for afforestation of mangroves were made. In above
cases this Court granted permission to remove mangroves as prayed for
in the said Petitions. In the case of Conservation Action Trust and
another, the Petitioner - Maharashtra State Road Development
Corporation Ltd. (MSRDC) wanted to construct Versova- Bandra Sea
Link, and a report was called from the Regional Forest Ofcer which
stated that in all 1585 mangrove trees would be destructed for
construction of Sea Link project. The Division Bench directed the
Petitioner to plant 13332 mangrove trees on the alternate land for the
purpose of compensatory afforestation. In the present case in all 1184
mangrove trees will be affected by the project. The Petitioner has shown
willingness to provide 10,000 saplings which would be planted to
compensate the loss of mangroves in the project.
14. Learned Counsel appearing on behalf of Respondent No.3 would
also not dispute that the project being undertaken by the Petitioner is a
public project. Considering such public necessity various authorities have
also granted permission to remove the mangroves, subject to the
Petitioner complying the conditions under the respective permissions.
Learned Counsel on behalf of Respondent No.1 also has not disputed the
contentions as urged on behalf of the Petitioner. He however submits that
it would be obligatory for the Petitioner to place on record an undertaking
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that the Petitioner will strictly comply with the conditions imposed by the
Respondent authorities for carrying out the proposed work.
15. Learned amicus curiae also did not dispute that the project being
undertaken by the Petitioner is in public interest. He submits that more
afforestation of mangroves are required. He further submits that the
Petitioner should plant 15,000 saplings instead of 10,000 as suggested.
Learned Counsel for the Petitioner accepted the said suggestion and
stated that 15,000 saplings (instead of 10,000) would be planted as loss
of mangroves in the project.
16. Having heard learned Counsel for the parties and having perused
the record, we are of the opinion that an exception is required to be made
in favour of the Petitioner to remove the mangroves as prayed for on the
conditions as imposed by the Respondent authorities as the work in
question is for public good and in public interest as referred to and in
accordance with paragraph 83 (viii) of the order passed by the Division
Bench of this Court in Bombay Environmental Action Group and
another V/s. The State of Maharashtra & Ors.7 . The Petitioner through
its Counsel has expressed willingness to plant 15,000 saplings as
indicated above. The Petitioner has shown willingness to place on record
an undertaking to the rigorous compliance of the conditions as imposed in
the permissions granted by the Respondent Authorities. The public
project in question cannot be stalled and we are inclined to grant the
reliefs as prayed for. In these circumstances, we allow the Petition in
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terms of prayer clause "a" which reads thus:p-
"a. To permit the Petitioner to execute the proposed construction
of 400 KV multi circuit transmission line Kharghar to Vikhroli in
mangrove area and its bufer zone in view of the public
importance of the project, by granting leave as contemplated in
paragraph 83 (viii) of the Judgment and Order dated 17th
September 2018 in PIL No. 87 of 2006".
17. The relief granted above shall however be subject to the condition
of the Petitioner placing on record of this Petition an undertaking of a
responsible ofcer to the effect that the Petitioner will comply with the
conditions imposed in the permissions granted by the Ministry of
Environment and Forest and other authorities for carrying out the
proposed project. The undertaking shall also state that the Petitioner
shall plant 15000 saplings. Such undertaking shall be filed within a period
of one week from today.
18. Rule is made absolute in the above terms.
[SURENDRA P. TAVADE, J.] [A.A. SAYED, J.]
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