BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI (PRINCIPAL BENCH) APPEAL NO. 26/2012

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1 1 BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI (PRINCIPAL BENCH) APPEAL NO. 26/2012 IN THE MATTER OF 1. Antarsingh Patel S/o Late Kalu Singh Village Sulgaon Tehsil Maheshwar District Khargone, M.P. 2. Sanjay Nigam S/o Late Shri Ratanlal Nigam Village Mardana Tehsil Maheshwara District Khargone, M.P. Versus 1. Union of India Through Secretary Ministry of Environment & Forests Paryavaran Bhawan, CGO Complex Lodhi Road, New Delhi Government of Madhya Pradesh Through Chief Secretary, Mandtrlaya, Vallabh Bhavan Bhopal, M.P APPELLANTS

2 2 3. Shree Maheshwar Hydel Power Corporation Ltd. Through Chairman 801, 8 th Floor, Ansal Bhavan, 16 th Kasturba Gandhi Marg, New Delhi Madhya Pradesh Power Generating Co. Ltd. Through Managing Director Shakti Bhavan, Vidyut Nagar Jabalpur, Madhya Pradesh Counsel for Appellant: Shri Ritwick Dutta Counsel for Respondent :. RESPONDENTS Ms. Neelam Rathore Shri C.D. Singh along with Ms. Ayesha Chaudhary Shri Parag Tripathi, Sr. Advocate along with Ms. Ruby Singh Ahuja and Ms. Ruchira Gupta JUDGMENT PRESENT: Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member) Dated 9 th August, 2012 The controversy in this Appeal is with regard to the decision dated 1 st May, 2012 taken by the Ministry of Environment and Forests (MoEF) to permit the Project Proponent of Maheshwar 400 MW Hydro

3 3 Power Project constructed over Narmada River in Madhya Pradesh to fill-up the reservoir upto 154 meter, on the ground that there would be no submergence upto that level. The decision is assailed in this appeal on several grounds. 2. Before traversing into the controversy, it would be proper to refer to the background of the case. The MoEF initially accorded Environmental Clearance (EC) in favour of Narmada Valley Development Authority, an instrumentality of State of Madhya Pradesh, way back on 7 th January, 1994, for construction of Maheshwar Hydro Power Project on river Narmada. It appears that the said EC was later transferred in favour of Shree Maheshwar Hydel Power Corporation Limited (SMPHCL) on 1 st May, The letter granting permission dated 1 st May, 2001 among other conditions stipulated as follows: The crest level of Maheshwar dam is at EL mtr and FRL is at EL mtr. As per the current construction program, project is planned for completion by June M/s. SMPHCL would be fully responsible for ensuring satisfactory resettlement and rehabilitation. Full arrangements should be made for resettlement and

4 4 rehabilitation of project affected families from 61 villages (13 fully submerged, 9 partially submerged and 39 where only land is getting submerged) getting affected due to maximum water level at mts. For ensuring time bound and satisfactory rehabilitation as well as other environmental measures, the Ministry has constituted a Monitoring Committee vide its Order No. J.11016/120/83-IAI dated May 1, 2001 which will hold its meetings at site or in Delhi during January, 2002, January, 2003 and January, 2004 to review compliance of environmental measures and R&R works to be completed upto December, 2001, December, 2002, and December, During this period, progress of concreting work on the dam is expected to be approximately 35.2%, 74.4% and 89.2% respectively with 100% proposed to be achieved by June, Progress in implementation of environmental safeguard measures and R&R should keep pace with progress in concreting. Project authorities should extend full cooperation to the Review Committee.

5 5 3. One of the pre-conditions for construction of the project was that rehabilitation and resettlement of project affected people should be in conformity with the Rehabilitation Policy for the oustees of Narmada Projects evolved by Narmada Valley Development Department, Government of Madhya Pradesh, and that the rehabilitation and resettlement work should be completed by December 2003 or six months prior to commencement of submergence, whichever is earlier. 4. In consonance with the permission referred to supra the construction work commenced and progressed. Unfortunately, however, the rehabilitation and resettlement of the displaced persons was not carried out satisfactorily. On coming to know about the said facts, MoEF on 17th February, 2010 issued a show cause notice under Section 5 of the Environment (Protection) Act, 1986 to SMPHCL. In the said show cause notice, it was clearly mentioned that the Ministry has learnt that compliance of various environmental conditions stipulated in the EC dated 1 st May, 2001 have not been complied satisfactorily. In as much as neither any progress has been made regarding creation of two sanctuaries nor with regard to rehabilitation and resettlement of project affected persons, though the EC specifically stipulated that the progress in implementation of environment safeguard measures vis-a-vis rehabilitation and

6 6 settlement must keep pace with the progress of the work. The Project Proponent was called upon by the MoEF to show cause as to why the EC granted to the project should not be revoked. Followed by the said show cause notice a stop work order was issued to SMPHCL by the MoEF on 23 rd April, However, in order to protect the dam, the stop work order was modified by order dated 10 th May, 2010 and the Project Proponent was permitted to go ahead with the construction of 7 gates before the onset of monsoon. 5. While matter stood thus the MoEF became concerned with the slow progress in rehabilitation and resettlement work and by letters dated 14 th March, 2011 and 28 th March, 2011 called upon the Government of Madhya Pradesh to furnish details of rehabilitation and resettlement work undertaken/complied by them. After taking stock of the entire position, the Project Proponent by letter dated 19 th May, 2011 was permitted to install the balance 5 radial gates to avoid damage to the existing construction in the event of breach of coffer dam due to monsoon flood, with a condition that the rehabilitation and resettlement work should progress simultaneously.

7 7 6. To avoid the unnecessary delay the MP Government proposed three level filing of reservoir at 154 m, 160 m and finally m. It is contended that:- i) At 154 m, 40 MW of electricity can be generated without any abadi submergence. Therefore, this level can be reached immediately. ii) iii) At 160 m, 120 MW of electricity can be generated. This will need relocation of three villages which is already at an advance stage, to be completed by end of the month. At m (which is the FRL of the reservoir), all 10x40 MW turbines can be used which can be done after rest of R&R is fully completed by the State Government. 7. After lots of correspondence, it appears the MoEF issued the impugned order dated 1 st May, 2012 observing as follows: 2. Based on the recommendations of the above mentioned Team of Officers and documents submitted with their site visit report including the certificate from the Collector, Khargaon, Madhya Pradesh, the Ministry has decided to allow filling up the Reservoir upto 154 mtr only on the following conditions:

8 8 (i) There will be no submergence due to lowering of gates and impounding upto 154 mtr level. (ii) Lowering gates and impounding upto 154 mtr level shall be carried out in a precautionary and gradual manner under the close supervision of a Committee to be constituted by the Ministry of Environment and Forests comprising representatives of Central Water Commission, MoEF and the State Government. The Officers from the District Administration and Departments of Irrigation, Energy and MPPGCL of State Government will also be represented. (iii) The process of lowering of gates and impounding upto 154 mtr shall be carefully observed by the above mentioned Committee and Officers. In case the Committee observes any adverse impact due to impounding upto 154 mtr, the Committee shall stop lowering of the gates immediately. (iv) All precautions shall be taken to ensure the safety of villagers by serving prior notice informing villagers well in advance.

9 9 (v) Implementation of R&R work shall be expedited by the State Government so as to complete it in all respects before six months of submergence. (vi) Further impounding shall be carried out only after seeking permission from this Ministry. The said order dated 1 st May, 2012 is assailed in this appeal, by the appellants who claimed to be residents of Village Sulgaon and Village Mardana. According to the Appellant they would be directly aggrieved as their lands will submerge due to lowering of gates and filling the reservoir upto 154 mtr level. 8. The MoEF on 20 th June, 2012, has constituted a Committee to monitor impounding of reservoir upto 154 m level comprising of: a) Shri S.K. Haldar, Director (Monitoring), Narmada Basin Organisation, MP. b) The Collector, District Khargone, MP. c) Dr. Ajay Mehrotra, Director(S), Eastern Region O/o MoEF, MP. The TOR for the Committee is as under: i) To ensure that necessary precautions have been taken by SMPHCL and a prior notice has been served well in

10 10 ii) iii) iv) advance to the villagers upstream of the dam to ensure their safety. To ensure that there is no submergence of private land or villages due to lowering of gates and impounding upto 154 m level. To ensure that lowering of gates and impoundment up to 154 m level is carried out in a precautionary and gradual manner under the close supervision of the Committee. The process of lowering of gates and impounding up to 154 m shall be carefully observed by the Committee and State Government Officers. In case the Committee observes any adverse impact due to impending up to 154 m, the Committee shall stop lowering of the gates immediately. 9. Though several contentions have been raised the main issue appears to be regarding unsatisfactory implementation of rehabilitation and resettlement plan pari pasu with the construction work. Learned Counsel Mr. Ritwick Dutta submitted that rehabilitation and resettlement plan is not being properly implemented and the affected persons had not yet been rehabilitated even though the construction work has advanced significantly. He also stated that number of lift pumps installed in the bank of the river shall get affected, due to submergence and no proper compensation has been paid to the affected persons. Learned Counsel for the Appellant further submitted

11 11 that even at EL 154 mtr, a number of houses, pumps / pipe lines / pump houses will get submerged, though the affected persons have not yet been compensated and necessary alternative arrangements for supply of electricity are yet to be made by the M.P. Electricity Board. 10. According to learned counsel for the Project Proponent (Respondent No.3) no submergence will take place if the reservoir level is kept at 154 mtr. It is further contended that the Monitoring Committee has been constituted by MoEF to oversee the impounding of the reservoir to ensure that there is no submergence of private land and homestead of villagers, nor there would be any adverse impact due to impounding up to 154 mtr. The Committee by order dated 20 th June, 2012 has been authorised to stop lowering of the gates immediately, if required, thus, no prejudice would be caused to the Appellants or villagers or any of the village. 11. In the process of development, the State cannot be permitted to displace local inhabitants, a vulnerable section of our society, suffering from poverty and ignorance, without taking appropriate remedial measures of rehabilitation. The Court is not oblivious of the fact that social and economic reasons had caused disaffection, and thus, the

12 12 village areas are today in deep trouble and have become victim of modernisation in the grab of social and industrial development. 12. The villagers who are likely to be deprived of their ancestral, properties, due to developmental activities, have to be adequately compensated. Compensation has to be understood in relation to the right to property. The right of the oustees is protected even by the Constitution under Article 300-A. The tenure-holder is deprived of the property only to the extent of land actually owned and possessed by him. This is, therefore, limited to the physical area of the property and this area cannot get expanded or reduced by any fictional definition of the word family when it comes to awarding compensation. Compensation is awarded by the authority of law under Article 300-A read with the relevant statutory law of compensation under any law made by the legislature and for the time being in force, only for the area acquired. 13. Rehabilitation on the other hand, is restoration of the status of something lost, displaced or even otherwise a grant to secure a dignified mode of life to a person who has nothing to sustain himself. This concept, as against compensation and property under Article 300- A, brings within its fold the presence of the elements of Article 21.

13 13 Those who have been rendered destitute, have to be assured a permanent source of basic livelihood to sustain themselves. This becomes necessary for the State when it relates to the rehabilitation of the marginal farmers in order to meet the requirements of social justice. 14. The rehabilitation has to be done to the extent of the displacement. The rehabilitation is compensatory in nature with a view to ensure that the oustee and his family are at least restored to the status that was existing on the date of the commencement of the project. Each State has a right to frame the rehabilitation policy considering the extent of its resources and other priorities. One State is not bound if in a similar situation, another State has accorded additional facilities even over and above the policy. See State of Madhya Pradesh V/s. Narmada Bachao Andolan and others (2011) 7 SCC It is no longer resintegra that the benefits of developmental activities must go to the local people and their quality of life must improve instead of driving them to a disadvantageous position. Depriving them of the facilities which they were already enjoying, but are likely to be deprived of due to the proposed Hydro Electric project would be contrary to the law. Citizens are at the centre of development

14 14 and as such all efforts are required to be made to avoid any hardships to the affected persons. It is in this context, that the Project Proponent must provide facilities under the Corporate Social Responsibility (CSR) to the affected persons. These facilities, under CSR activity, must include health, education, skill-development, employmentopportunities, improvement in infrastructure facilities etc. Adequate funds for CSR should be earmarked for this purpose by the Project Proponent. Progress made in this regard should be monitored by MoEF and State Government. 16. The consistent case of the respondent (Project Proponent) is that there would be no submergence of houses or private agricultural lands, at 154 mtr sub-mergence level, at the same time electricity can be generated. Thus, applying the principles of sustainable development permission should be granted to the Project Proponent to maintain 154 mtr sub-mergence level in the reservoir, and commence generation of electricity. The said submission is strongly repudiated by Mr. Dutta. Drawing our attention to the letter dated 29 th March, 2012, it is submitted that a Committee was constituted by the MoEF, consisting of senior officers of the Ministry, to conduct an enquiry on the spot.

15 15 During their visit to the villages namely Sulgaon, Pathrad-Khurd and Bhatyan Buzurg and other villages, the Committee came to know that water had in fact entered into the houses of villagers during flood in August, 2011 when the water level at the dam site was 154 mtrs. That apart, according to Mr. Dutta the rehabilitation and resettlement work has not been completed in spite of specific directions of the MoEF, as such permission should not be granted to the Project Proponent. 17. In their report dated April 5, 2012, the team of officers of the Ministry who had visited the project on 22 nd and 23 rd March, 2012 recommended as follows: 1. In view of the confirmation provided by the State Government that there will not be any submergence of houses or land at level 154 mtr at the barrage site, the request for permitting impoundment of the reservoir upto 154 mtr level at barrage site may be considered. 2. Impoundment upto 154 mtr level may be carried out in a precautionary and gradual manner under the close supervision of the officers of the District Administration and concerned Departments of State Government such as irrigation, Energy, MPPGCL etc. Adequate precautions/care should be taken by the Project Proponent /the State Government with prior notice and due information well in advance to the villagers to ensure their safety.

16 16 3. Implementation of R&R work should be expedited by the PP/the State Government so as to complete the same in all respects within six months. 4. All terms and conditions stipulated in the environmental clearance for the Maheshwar HEP issued in May 2001 should be rigorously monitored by the State Government. 18. Mr. Parag Tripathi, Learned Senior Advocate appearing for the respondent No. 3 drew our attention to several documents and assured that there would be no sub-mergence at 154 mtr. According to Mr. Tripathi all steps have been taken to complete the paraphernalia of rehabilitation and resettlement, thus, the permission granted by the MoEF may be implemented. 19. Hon ble Supreme Court in the case of State of Madhya Pradesh vs. Narmada Bachao Andolan & Anr., (supra) observed as follows: We have been given to understand that on Narmada River, in the State of Madhya Pradesh, in all 29 major and minor projects are contemplated. Some of them have already been completed, but on account of stay order by the court/authority some projects could not be completed. It is unfortunate that in spite of the fact that a huge amount has

17 17 been spent, yet no one is able to reap the fruits of investments. The State should take immediate steps to get the final verdict in such cases or stay vacated and start the project at the earliest. 20. Section 20 of the National Green Tribunal Act, 2010, vests an onerous duty upon this Tribunal to apply the principles of sustainable development while passing an order or decision. In the case in hand the environment clearance was granted by the MoEF to the project as long back as in the year The said environment clearance was not assailed and Maheshwar Hydro Power Project was constructed over Narmada River incurring huge cost. All the machineries have been installed and even there was a successful trial run for generating electricity. While dealing with this type of controversies, this Tribunal is required to take a pragmatic approach and strike a balance between the development and environment. While considering the loss and harassment expected to be caused to land oustees, to their property as well as to ecology and environment in particular, this Tribunal should provide ways and means to mitigate such loss. The protection of the land oustees or the villagers whose lands are going to be submerged is the paramount lookout of the Government. Strictly speaking rehabilitation and resettlement is not within the domain of the NGT Act,

18 18 but then the same being one of the conditions of EC granted to the project, we feel called upon to examine the allegations with regard to non compliance of the said condition, which may entail cancellation of EC. It appears that steps were taken and directions were issued to the Project Proponent to go ahead with the construction work pari-pasu with the rehabilitation and resettlement work. The counsel appearing for Government of Madhya Pradesh (Respondent No. 2) stated before us that all necessary steps are being taken to complete the rehabilitation and resettlement work expeditiously. Mr. Tripathi, Learned Senior Counsel also re-iterated the stand of the Project Proponent and assured us that steps have already been taken with regard to rehabilitation and resettlement. 21. In the meanwhile, the MoEF has also constituted a High Level Committee to super-wise the work of raising the level of the reservoir at dam site upto 154 mtr. The reference made to the committee reads as follows: (I) To ensure that necessary precautions have been taken by SMHPCL and a prior notice has been served

19 19 well in advance to the villages upstream of the dam to ensure their safety. (II) To ensure that there is no submergence of private land or villages due to lowering of gates and impounding upto 154 up level. (III) To ensure that lowering of gates and impoundment upto 154m level is carried out in a precautionary and gradual manner under the close supervision of the Committee. (IV) The process of lowering of gates and impounding upto 154m shall be carefully observed by the Committee and State Government Officers. In case the Committee observes any adverse impact due to impounding upto 154m, the Committee shall stop lowering of the gates immediately. 22. After going through the ToR we are satisfied that adequate measures have been taken by the MoEF for protection of the villagers. In the aforesaid scenario of facts and circumstances, applying principles of sustainable development, we feel ends of justice and equity would be better served, if the Project Proponent is permitted to fill up the reservoir at the dam site upto 154 mtr. and commence generation of 40 MW electricity on trial basis for a period of three months. The Committee constituted by the MoEF shall remain vigilant and assure that the conditions imposed in the ToR are observed

20 20 sacrosantly without any deviation whatsoever. It is needless to say that if there is any likelihood of submergence of abadi lands, then the process will be stopped / discontinued forthwith. 23. The Respondent No. 2 (Government of Madhya Pradesh) is directed to keep their officers on alert to meet any untoward incidence. They are also further directed to complete the entire process of rehabilitation and resettlement work, supply of drinking water and electricity to the affected persons within three months. Though, we intended to dispose of the case at this stage, but then realising the gravity of the situation, we feel it would be prudent to monitor the same for the protection of environment and proper implementation of rehabilitation and resettlement plan to the affected persons, therefore we direct to list this case after three months. All the parties are directed to file further affidavits and status reports in the meanwhile. Dr. G.K Pandey Expert Member Justice A.S. Naidu Acting Chairperson Dharamvir 9 th August, 2012