Vimal Bhai v. Ministry of Environment & Forests

India

Jurisdiction: India

Side A: Vimal Bhai (Individual)

Side B: Ministry of Environment & Forests (Government)

Core objectives: Challenge to the construction of a dam.

Summary

This appeal is filed being aggrieved by the grant of Forest Clearance (for short FC) accorded by the First respondent through its Order No. 8-65/2009 – FC dated 3rd of June 2011 under which deforestation of 80.507 hectares of government forest land diverted for construction of 65m high diversion dam across river Alakhnanda near village Helong in Chamoli District of Uttarakhand State for the purpose of generating hydroelectricity power. The Environmental Clearance (for short EC) was already granted as early as 22nd August 2007 by the Ministry of Environment and Forest (for short MoEF). It has been more than three years, and the EC has not been challenged so it is valid. Thus, the only challenge made is for the grant of FC and not EC. Appellant No. 1 is a Gandhian Social Activist working for the Environment Protection and Peoples' right over the natural resources in middle Himalaya area since 1988. Appellant No. 2 is an economist and a former Professor of Indian Institute of Management, Bangalore and lives on the bank of the river Alaknanda. Appellant No. 3 is a Social Activist and elected as Van Sarpanch of Village Naurakh. All of them are affected by the FC of the Vishnugad-Pipalkoti hydro power project in which construction of a 65m high diversion dam across river Alaknanda at Helong Village, Chamoli district of Uttarakhand State is proposed. The total land requirement of the project is about 120 hectares. Out of which, about 40ha is agriculture land and about 80 hectares is government forest land. The grant of FC in the present case was substantially based on the study made by Indian Institute of Technology, Roorkee (for short IITR) and Wildlife Institute of India, Dehradun (for short WII). As per the scope of work, "effectiveness of mitigative measures and compliance of stipulated conditions on which various projects earlier have been examined", was to be completed, however, no such study was conducted. Thus, the recommendation of the Forest Advisory Committee (for short FAC) was based on non-existent study and as such is arbitrary and whimsical. The Respondents No. 1 to 3 have filed their detailed relies. According to them, all the allegations made and the grounds raised in the appeal are all baseless and liable to be rejected. The following questions arise for considerations in this appeal- a) Whether the appellants can be called as aggrieved and /or injured "person(s)" as defined under the National Green Tribunal (for short NGT) Act and the appeal is maintainable by them: A reading of Sections 2(j), (i) to (viii) of the National Green Tribunal Act, 2010 would reveal that any individual, Hindu undivided family, Company, Firm, an association of persons or a body of individuals whether incorporated or not, trustees of a trust, a local authority and every artificial juridical person not falling within any of the preceding sub-clauses, would indicate "person" who can maintain an application/appeal under the NGT Act. But, it is the argument of the learned counsel of the Respondent that even the above defined person shall be a person either aggrieved or injured directly or indirectly and not otherwise. The only exception to be made for treating an appeal/application as not maintainable could be a matter which falls beyond the seven (7) Acts as notified in Schedule I of the NGT Act 2010 and in a case of mala-fide and vexatious litigation brought before this Tribunal and not otherwise. The statutory provisions are subservient to the constitutional mandates. The person as defined or person aggrieved as occurs in Sections 2(j), 16 and 18 (2) of the NGT Act cannot be placed above "every citizen" as appears in Article 51A of the Constitution of India. Once the mandate is of every citizen, any person can approach this Tribunal complaining environmental threat in the activities of the State or any organization or individual. Therefore, the appellants are interested persons in the environment and ecology of the area, though they are not directly affected/ injured at this point of time. But, they can be definitely called aggrieved persons since they apprehend some danger, if the project is launched without taking proper precautions. b) Whether the appellants are justified in raising grounds that may be available for challenging the EC or its conditions in the guise of challenging the grant of present FC: Admittedly, the EC was granted to the project on 22nd August, 2007 and no challenge was made to EC. The FC alone is under challenge in this Appeal. Therefore, the submission made by learned counsel for the appellant that all the issues that arise from the EC can also be raised in this appeal cannot be countenanced and accepted. But an exception can be made when the issues overlap i.e. the issues that were considered at the time of grant of EC and again while granting FC, since they are considered one after the other, independently. c) Whether the FC granted in favour of project proponent is in consonance with the principles of sustainable development and precautionary measures: The appellants have raised grounds pertaining to negative impact of tunneling on water springs and its subsequent impact on forests and agriculture; Methane emissions from reservoirs; deterioration in water quality due to less absorption of beneficent chemicals; loss of aesthetic and ‘non-use values'; value of free-flowing rivers; breeding of mosquitoes in reservoirs and the negative impact on health; deprivation of sand and fish to local people; negative cultural impacts; and negative impact of blasting/ tunneling, etc. Whereas the respondents have filed detailed replies countering the allegations and relied on various documents/ reports starting from Environment Impact Assessment/Environment Management Plan report, Geological reports, Appraisal documents for World Bank loan, etc. The process of analyzing cumulative effects is an enhancement of the traditional EIA components: (i) scoping, (ii) describing the affected environment, and (iii) determining the environmental consequences. The Cumulative Impact Assessment f(or short CIA) studies in the instant case were awarded to IITR & WII separately with elaborate TOR and time bound deliverables as evidenced from the material placed on record. With regards to question pertaining to environmental flow, though originally part of EC, it is argued that the MoEF has stipulated at Para (xi) of the FC that minimum environmental flow as recommended in IITR study report shall be released whereas, the environmental flow determined by IITR is erroneous owing to limited data, non-use of Building Block Method and mechanical application of other methodologies as examined by Mr. Himanshu Thakkar and Parineeta Dandekar of South Asian Networks on Dams, Rivers and People. In this context, a study of International Water Management Institute (for short IWMI) has been quoted that gives environmental flow recommendations for the Ganges basin. The learned judges are of the considered opinion that the stipulations regarding environmental flow certainly follow the sustainable development and precautionary principles. "We are of the opinion that there are no substantial merits calling for our interference into the FC, in question, granted by the Respondent No. 1. " The appeal stands disposed of subject to the following directions: 1. Integrated CIA Report preparation: The first respondent shall setup an appropriate committee of experts drawn from IITR and WII in the preparation of CIA report of the five projects considered in WII report to integrate the physical, biological and social impacts in making comprehensive cumulative impact assessment report and frame appropriate conclusions and recommendations within a reasonable timeframe for consideration and final review by the Ministry of Environment and Forest to avoid any unforeseen environmental and ecological threat in the study area. If this direction is not carried out, the appellant is at liberty to take appropriate steps as required under the law. 2. Preparation of Cost Benefit Analysis Norms: Considering the need for better procedures in making sound evaluation of the forest land diversion proposals, following options for cost benefit analysis shall be explored for future proposals: a. the guidelines for cost benefit analysis may be updated/modified to provide clear instructions regarding the various cost and benefit elements to be incorporated for the purpose of arriving at cost benefit ratio; and b. the cost benefit analysis for each proposal received for diversion of forest land shall be done adopting the prescribed procedure.