The much awaited judgment on construction of Kanhar dam was pronounced today at Faridkot House, by the Principal Bench of National Green Tribunal chaired by Justice Swatanter Kumar. The petition was filed by Advocate Parul Gupta on behalf of the applicants- Debadityo Sinha, Vindhya Bachao Abhiyan and Om Dutt Singh, People’s Union for Civil Liberties before the Principal Bench, National Green Tribunal on 22nd December, 2014. The matter was reserved for judgment on 24th March, 2015.
A Brief Background
The application was filed by the applicants against the ongoing construction activity of the Kanhar Irrigation Project in district Sonebhadra, Uttar Pradesh in violation of the provisions of EIA Notification, 2006 specified under the Environment (Protection) Act, 1986 and the Forest (Conservation) Act 1980. The applicants in their pleadings have submitted that the project undertook minor digging work (preparatory work) till 1989 and subsequently was left abandoned by the State for several years. Since the construction of the project was commenced in December, 2014 i.e. after a long period of
suspension for almost 25 years, the applicants filed the abovementioned application before this Hon’ble Tribunal seeking an immediate stay on the construction activities on the ground. It was contended that as the project is undertaking its construction now, the same shall adhere to the present laws and be permitted to be carried out only after a detailed environment impact assessment of the project taking into account the present environmental and ecological conditions of the area. Approximately 2400 Acres of Forests needed to be diverted, for which the applicants claimed that the State Govt. of Uttar Pradesh also need a ‘Forest Clearance’ from Central Government.
Following is some excerpts from the original judgment, also available on NGT website
Observations
- The Environmental Clearance granted in the year 1980 was a mere formality and did not safeguard environment and ecology of the area in question. If the project of similar scale was proposed in the times when actual construction work had started after transfer of the required lands, it would have required serious considerations from various environmental perspectives and much harsher conditions would have been imposed on the project proponent.
- Whatever be the situation at site, very substantial work of the project is still to be completed. Even the photographs placed by the Respondents on record do not show that the project is anywhere near to its completion. We are of the considered view that even if the project is treated to be an ongoing project, even then, its impact on environment, ecology and biodiversity of the area is required to be considered objectively and in its correct perspective.
- Nature of the project involves tunneling, making of canals, roads, bridges and other concrete works which all would, in the normal course of events have an impact on the environment. The Environmental Clearance which was granted 33 years back cannot be held as good in the field of environment. With the progress in time and the developments that have taken place during this long time, are certainly of relevant consideration for examining the environmental impact of the project on the area in question. The applicants plea that the project activity which has started at a massive scale in the recent past is bound to have impact on environment, aquatic ecology, forest and terrestrial biodiversity, wild life habitat, climate change and would also result in loss of medicinal plants and rich biodiversity is an element of merit. From the pleadings of the parties and the documents on record, it is evident that hardly any construction or other major activity had taken place prior to 1994.
- The consent of the other States came in the year 2002 and 2010 respectively. The Central Water Commission granted approval in September, 2010. The cumulative effect of these documents seen in light of the circumstances of the case clearly shows that the project implementation took off in the recent past and not years back.
- Admittedly, the project in question had not established itself, much less it had become operational either in 1994, or 2006 or even in 2014. The expansion and modernization would have to be of an ongoing project. The project must exist on the site, otherwise it would be a project which is sought to be implemented and modified at planned stage, i.e., on paper and not in reality. In such projects, obligation to comply with the existing environmental laws would certainly accrue. The laws even if taken as prospective and not retrospective, even then the project which has not been implemented, at least substantially, would be required to comply with the environmental conditions as such interpretations of these laws alone, would serve the object of environmental statutes, public good and protection of the Fundamental right in terms of Article 21 of the Constitution of India. The object of environmental laws is to protect the environment, ecology and public health in the interest of society. It would be impermissible to throttle the compliance to these laws on the assumption that such laws would not be applicable to the existing units or to the units or the projects which are ongoing or are at their very initial stage of construction.
- Undoubtedly, the project is nowhere near its completion. It has still miles to go before it is operationalised and serves the purpose that it is required to serve. There were considerable changes in the scope of the work, technical parameters, dimensions and particularly, the expenditure of the project. We have already noticed that till 2010 even the concurrence of all the concerned States had not been received and the project had not been cleared by Central Water Commission for the revised parameters.
- The above discussion clearly shows that the Project Proponent should have been advised to seek Environmental Clearance under the Notification of 1994 and / or 2006. There is legal obligation upon the Project Proponent to continue and complete the project with due regard to the environmental laws in force. Any law and for that matter, more specifically, the environmental laws are not mutable. They are progressive and subject to change. The provisions must be construed with regard to the scheme of the laws in force and the object sought to be achieved by such legislations. Certainly the entire development of the area will affect 19 villages of 3 States, which is a relevant consideration. The impact of the project activities and its completion will have diverse impacts upon the environment, ecology, rivers and the biodiversity of the area in question. Having obtained the Environmental Clearance in the year 1980 and the project being nowhere near completion even in 2015, the environment and ecological degradation is a matter of serious concern and the Project Proponent should be obligated to take all such precautionary and preventive measures that are required to be taken in the interest of environment and ecology. We have already noticed that there is nothing on record of the Tribunal to show that there has been strict compliance to the conditions of the Environmental Clearance granted in the year 1980 and even to the conditions stated for transfer of forest land in the letter dated 27th February, 1982.
- The Environmental Clearance granted in the year 1980 was a mere formality and did not safeguard environment and ecology of the area in question. If the project of similar scale was proposed in the times when actual construction work had started after transfer of the required lands, it would have required serious considerations from various environmental perspectives and much harsher conditions would have been imposed on the project proponent. Some activities of the project, like the building of the roads, bridge and dams etc. would have a different impact at the construction stage and operation stage. The facts of the present case, examined in the light of the principles of sustainable development and the precautionary principle would tilt in favour of the project proponent but even by imposition of proper conditions in consonance with the laws in force, which in any case exists right from 1986 onwards. Another factor that has persuaded us to pass an equitable order in the present case is the fact that huge amount of public funds have already been spent on the project, large scale construction and digging has already taken place as of now. Any direction for stoppage of work or demolition of the project would certainly not serve either the ends of justice or the environment. The project also contemplates to provide water to drought prone areas.
- Another aspect which requires to be noticed in favour of the invocation of precautionary principle is that large scale industrial development has taken place in and around this area but still it has not affected the area in terms of prosperity and health. Life of the people living in that area still remains backward. This project is intended to provide and inject better facilities of living and better environmental air to the area in question.
- The Environmental Clearance to the Project is of a period prior to the enactment of the Environmental (Protection) Act 1986. In the light of the fact that actual impacts of the project on the ecology, environment and the people would be noticed only on commissioning of the project, thus there is need to reassess the environmental impacts in the light of the development that has taken place in the area around the project, both within the District of Sonbhadra and in the entire Singrauli region. The environmental impact assessment prior to the grant of EC in 1980 confined itself to the assessment of natural resources, mainly, forest diversity with botanical surveys of trees, shrubs and grasses being carried out by the botanical survey of India. The EIA study had merely listed out the various plant species occurring in the area and made observation that there are no rare or endangered species of the plant occurring in the area. It is further said that there is not much vegetation in the area except common species of dry deciduous forest and that there will be no major environmental impact if the proposed dam is constructed.
- Most of the industrial development which has taken place in last 30 to 40 years has caused immense stress on the environment and consequently on the people. Obviously, therefore, an environmental clearance granted in 1980 would not have factored with the level of industrial development and it cumulative impact on the environment.
- A simple reading of the conditions for EC will only demonstrate that such factors as Air Pollution caused due to the industries, power plants, mining and stone crushing has not even being mentioned in the EC, let alone gone into comprehensively while undertaking Environmental Impact Assessment.
- The district is also one of the districts which have high percentage of the area under forest. As against the forest cover of less than 6 % for the entire State of UP, Sonbhadra District accounts for about 38 % of the forest cover (though most of it is more than 60% open forests with canopy density of less than 40%)
- Therefore, against an area of 980.40 hectares diverted for the irrigation project, the area brought under compensatory afforestation in terms of the statement filed by a Divisional Forest Officer, Renukoot Forest Division is only 666 hectares of forest plantations and 80 KMs of road side plantations. Though not specifically mentioned in the Report of the DFO, however, it emerges that there is still deficit of about 314 hectares of area to be covered under compensatory afforestation. The reply filed by the State of UP (Respondent No. 1 and 2) is silent as to when and where the deficit of compensatory afforestation is proposed to be liquidated. It is also not clear from the Report filed by the Divisional Forest Officer as to the present status of the compensatory afforestation in terms of the survival percentage of the plantation and their growth and their present status. The compensatory afforestation which is claimed to have been done in the years 1984 to 86 would have reached sufficient degree of maturity and should be a full grown forest in 30 years, the time elapsed since the compensatory afforestation activity was done. This is particularly important considering the fact that all the forest areas that were diverted in terms of the order of Governor of UP in 1982, has been cleared of the pre existing vegetation and in the area that was taken up for compensatory afforestation should be a full grown forest as of now. It is also essential to assess the impact of such large scale clearance of forest when compensatory afforestation has not been completed. There being a deficit of more than 300 hectares even now as per the document on record.
- In other words, in order for the project to be completed as per the revised technical and physical parameters, the project authority would require additional 441.07 hectare of forest land for its completion. There is not even a whisper in the reply of the State of UP to suggest that State of UP has submitted a proposal for acquiring this balance forest lands in terms of the Provision of the Forest (Conservation) Act 1980. The Affidavit of the MoEF & CC (Respondent No. 3) is also silent on this.
- Be that as it may, assuming that the Governor of UP approved the diversion of 2422.593 acres of forest land validly, no such diversion could have happened in 1982 without prior concurrence of the central govt. under Section 2 of the Forest (Conservation) Act 1980.
Directions:
In the application, there is no prayer for setting aside of the Environmental Clearance dated 14th April, 1980. There is no Forest Clearance placed on record by any of the parties before the Tribunal. We are not inclined to accept the contentions of the applicant and grant prayer that the project work should be stopped and it should not be permitted to continue till the Project Proponent seeks fresh Environmental Clearance. In our considered opinion, it would neither serve the interest of the environment or ecology nor would it serve public purpose. Huge amounts have been spent on this project. The project which was expected to cost the nation 27.75 Crores, is now costing the country 2252.29 Crores at 2013 price level. Stoppage of work would further enhance the cost of construction and would be unnecessary burden on public exchequer.
Applying the principle of sustainable development, while giving due regard to the protection of environment and while ensuring that no irreversible damage and degradation of environment is permitted in terms of Section 20 of NGT Act, we are constrained to issue certain directions. We find it inevitable for us to issue directions keeping in mind peculiar facts and circumstances of the present case, thus, the following order:
(1) We constitute the following Committee which shall submit the report to the Tribunal on the issues stated hereinafter and in light of this judgment:
(a) Principle Chief Conservator of Forest (Uttar Pradesh) or his representative.
(b) Chairman or his Nominee of Expert Appraisal Committee of River Valley and Hydro Power Projects of Ministry of Environment, Forest and Climate Change.
(c) Member Secretary, Central Pollution Control Board.
(d) Representative of Ministry of Environment, forest and Climate Change.
(e) Representative of Central Water Commission.
(f) Chief Engineer, Department of Irrigation, State of Uttar Pradesh.
(g) Chief Engineer, Department of Irrigation, State of Chhattisgarh.
(h) Expert from IIT, Kanpur.
(2) The Committee shall specifically report whether the conditions imposed in the consent order dated 14th April, 1980 and 27th February, 1982 of the Forest Department have been strictly complied with or not, in all respects.
(3) The Committee while examining the compliance of the conditions, as noticed above, shall specifically report whether the conditions have been complied with in its entirety or not. What is the status thereof and what steps are required to be taken in that regard?
(4) Whether there is complete and comprehensive Resettlement and Rehabilitation Policy in place in relation to the project.
(5) Modifications in execution of the project, if any, required to ensure protection of environment and ecology in the execution of the project in question.
(6) The Committee is required to make its general recommendations, measures and the conditions that should be imposed upon the project proponent to ensure that further progress of the project does not have any adverse impacts on ecology, environment, rivers, hydrology, biodiversity and on all the surrounding forests, villages and tribes.
(7) The Committee shall assess and examine the present status of the compensatory afforestation done by the forest department during 1984, 85 and 86 over an area of 666 hectares and 80 kms on the road side. The Committee shall make assessment of the survival percentage and the present status of compensatory plantation through random sampling.
(8) The Committee shall examine the proposal of Project Proponent with reference to the forest area already diverted (980.40 Hectare) and the balance area of 441.07 hectares that is required to be diverted in terms of the note prepared by the Administrator of the project while seeking clearance for the project.
(9) The Project Proponent shall not take up any new activity on the additional forest area of 441.07 hectares proposed to be acquired unless specific permissions under the Forest (Conservation) Act 1980 is taken and the area diverted for non forest activity by the Competent Authority.
(10) The Committee shall study the impact of loss of 980 hectares of forest area which is comprised of wild life habitats with specific reference to the elephant corridor, rich floral and faunal diversity.
(11) Undertaking Social forestry in resettlement colonies of the displaced persons was one of the conditions of EC. The Committee shall examine whether social forestry for ameliorative measures against air pollution and adverse impact on local ecology and environment has been taken up and to what extent. The committee shall also suggest measures as to how the resettlement colonies particularly, if located close to the industrial clusters of Sonbhadra, can be protected from the adverse effects of thermal power plants,
coal and bauxite mining, aluminum and cement industries, particularly, form the air and water pollution and health impacts due to Mercury, Arsenic and Fluoride contamination and as a consequence of the presence of large number of industries in the District of Sonbhadra in particular and Singrauli in general.
(12) In the light of the fact that the Kanhar River flows through to a drought prone area where water is a critical input for the life supports systems, both on land and within the aquatic ecosystem, the Committee should examine maintenance of certain minimum environmental flow downstream of the Dam.
(13) The Committee while preparing the comprehensive report shall take into consideration, if there is any adverse impact of the works already executed, on the environment and ecology of the areas and the remedial steps that should be taken.
(14) The Project Proponent shall complete the construction or activity that is under way and would not commence any new activity or construction without specific recommendations of the Committee in that behalf.
(15) The Committee shall pay specific attention in regard to the conditions that should be imposed upon the project proponent for conservation, protection, reforestation, restoration of environment and ecology wherever any environmental damage or degradation has occurred as a result of this project.
24. In view of the fact that we are finally disposing off the Original Application, M.A. No. 902 of 2014 (praying for interim stay on the further progress and construction of the project) and M.A. No. 14 of 2014 (praying for taking of action against respondents for violating the orders of the Tribunal on 24th December, 2014) do not survive for consideration of the Tribunal and are, therefore, disposed of as such.
Opinions
I have rather a mixed opinion for the judgment. Although it approves all the major contentions raised by us that the old clearances of 1980's holds no good with respect to the present changes in the environmental conditions, it has disallowed halting construction activity on account of the fact that huge amount of money has already been spent on the project and delaying the same at present for want of fresh clearances under law would neither serve the interest of the environment or ecology nor would it serve any public purpose. Although certain directions for formation of an expert committee have provided a part relief yet the decision gets tilted in favor of the State due to the fait accompli created by them. -Parul Gupta, Advocate for the Applicants
The judgment says that ‘very substantial work of the project is still to be completed’ and has agreed that the project is nowhere near to completion. A committee is formed of experts of Ministries, PCCF and IIT Kanpur which is virtually the specialized monitoring body being formed by court for this particular project which will deal with the critical issues like complete R&R and would study the environmental and ecological impacts from all aspects including environmental flow requirement of river and impacts on elephant corridor. Although the judgment allowed the construction which is underway, it has stated that approval of the Expert Committee would be required for any new construction activity. If these directions are implemented in letter and spirit, it would provide relief to a certain extent.-Debadityo Sinha, (Vindhya Bachao Abhiyan) and Petitioner
After the elaborate and severely adverse analysis, the decision is a complete non sequitur. I kept reading the observations with full assent and was jolted when I came to the decision. - Padmashri Dr. Ramaswamy R. Iyer, Former Secretary Water Resources, Govt. of India
This is most disappointing and inconsistent order. - Himanshu Thakkar, South Asia Network for Dams, Rivers and People
Feedback is welcome!