North East Affected Area Development Society (NEADS) And Ors vs Union Of India And Ors

Dr. P. Jyothimani, J

On conclusion of the arguments by all the respective counsel we have pronounced the following brief order in the open court on this day.

"We have heard the learned Counsel appearing for appellant as well as respondents in detail. We are satisfied that there are absolutely no merits on all the grounds, raised by the learned counsel appearing for appellant. Accordingly Appeal No.. 8 of 2011 stands dismissed. There is no order as to cost. Reasons for Judgment to follow".

Accordingly, we proceed to give our detail reasoning in the form of Judgment which are as follows-

This appeal is directed against the Environment Clearance granted by the MoEF dated 12.02.2010 to the Demwe Lower HEP (1750 MW) project in Lohit District of Arunachal Pradesh under taken by M/s Athena Demwe Power Pvt. Ltd. The appellant is an NGO working in upper Assam on livelihood and development issues. North East Affected Area Development Society (NEADS) who is the first appellant is working with disaster affected communities with the right to food and livelihood as a major thrust area and has also been working with local communities in Sadiya sub-division of Tinsukia district of Assam, which is part of both Lohit and Dibang river basins. The first appellant has also made submissions to the MoEF during the appraisal stage of the project. The second appellant is an environmental activists from Assam who has also made submissions before the MoEF against the project in respect of which environmental clearance has been granted by MoEF. It is a Hydro Electric Project (HEP) envisaging construction of a concrete gravity dam of 163.12 m height above deepest foundation level (124.8 m above average river bed level) across river Lohit in Lohit District, Arunachal Pradesh. The third respondent is the project proponent which is a company responsible for implementing the project. It is the case of the appellants that in the downstream stretches the Lohit river flows through the State of Assam before joining the Dibang and Siang to form Brahmaputra river in Assam. It is further stated that the maximum water level and FRL of the project are appraised at the elevation of 424.8 m. The minimum draw down level will be at the elevation of 408 m with live storage of about 171.20 M.cum. It is stated that the SRC power house is right back to the Lohit river to accommodate five vertical Francis Turbines of 342 MW each and one unit of 40 MW to generate a total installed capacity of 1750 MW. The total land proposed to be acquired for the project is 1589.97 ha including submergence area of 1131 ha consisting of 174.05 ha as community Jhum land, 720 ha under Community Forest, 192 ha under Reserved Forest and 502.92 ha as River Bed (Forest Land). According to the appellants the acquisition of land will affect 23 villages/hamlets and around 204 project affected families are likely to lose their land. However, it is stated that the total land and the people impacted by the project has been grossly underestimated and in reality the numbers are much higher.

The project was considered by the Expert Appraisal Committee (EAC) for River Valley and Hydro Electric Projects (HEP) at its meeting held on 22.10.2009, 16.11.2009 and 16.12.2009 and ultimately 1750 MW Demwe Lower Project was granted Environment Clearance on 12.02.2010 by the MoEF namely respondent no. 1.

According to the appellants, the respondents have shown great disregard to the Environment Impact Assessment Notification, 2006 (EIA Notification 2006) both at the scoping as well as at the public hearing stages. According to the appellants the EIA Report is grossly in-adequate ignoring important data. The appellants case is that the procedure followed in the scoping stage is totally faulty due to the reason that Mr. P. Abraham, Director of one of the promoting companies of the project proponent, was the Chairman of EAC and therefore, the entire process has to be struck down. The scoping being a very crucial initial stage of the process by which the EAC determines the comprehensive Terms of Reference (TOR), participation of the above said person which has got an element of bias makes the entire process including EC as unsustainable in law. It is the further case of the appellants that the project has many lacunae including that Form 1 particulars were inaccurate like the permanent and temporary change in land use as the major impact of the riverine islands and the tracts in the downstream areas in both Arunachal Pradesh and Assam being ignored, that it also ignored the Catchment Area Treatment and Compensatory Afforestation, that there is no mention of impacts due to decommissioning of the project, that there is no proper answer regarding the undeveloped and agricultural land, that there is no detail about the possible accident resulting in explosions, spillages, fires etc from storage, handling, use or production of hazardous substances, that the answer has been given in negative in respect of cumulative effects due to proximity to other existing or plant projects with similar effects since the hydroelectric project concerned in the EC is one among the 11 core projects with the installed capacity of around 8200 MW, that the areas of sensitivity for ecological reasons like wetlands, watercourses, water bodies, coastal zones, mountains, forests etc have not been properly explained except a reference made relating to Kamlang Wildlife Sanctuary, that there is no reply regarding the area containing important high quality or scarce resources including the important area for religious tourism in Parasuram Kund.

The conflict of interest has been raised by the appellants on the ground that the Chairman of EAC which examined the project namely Mr. P. Abraham was a Director on the Board of PTC India Ltd which is one of the 3 promoters of the project in question; As PTC India Ltd, has invested Rs 30 Crores in Athena Energy Ventures Private Ltd and committed to invest 150 Crores, the Committee headed by Mr. P. Abraham played a critical role in the scoping stage and an interested person himself has been sitting for clearing the project and therefore the subsequent decision taken by EAC is doubtful of any credibility. This according to the appellant is because of the reason like the non consideration of crucial issue by EAC regarding downstream impacts of the dam which includes loss of fisheries, change in wetland ecology in the flood plains, agricultural losses due to massive daily fluctuations in flow, increased flood vulnerability due to massive boulder extraction from river beds and sudden water releases from reservoirs. The downstream impact study relating to Arunachal Pradesh as well as Assam is relevant which according to the appellants have been ignored. The only study goes beyond 10 Km as per TOR analysis which relates to the flooded downstream if the dam breaks. There is no other relevant study made which includes the habitation importance of bird area etc. It is also the case of the appellants that while granting Environmental Clearance, upper and lower Demwe were deliberately delinked from the cumulative river basin study especially when 11 hydroelectric projects are planned in Lohit river basin, six on the main Lohit river itself at a distance of 86 kms. The EAC has prescribed advanced cumulative study in the Lohit river basin. The decision of EAC under the Chairmanship of Mr. P. Abraham that the environmental clearance to Demwe Upper and Lower HE Project should not be linked with the completion of basin study is improper. As the decision taken in EAC meeting on 15th and 16th December, 2008 states that the study will be completed in two years by entrusting the job to WAPCOS, issuance of Environmental Clearance should have been postponed till such study is completed. According to the appellants, the stipulation in the EC that depending upon the ongoing basin studies such further recommendations shall be binding on the project developer is meaningless and there may not be any possibility of rectifying the defects in the EC at a later stage.

Apart from the objection relating to the scoping, the appellants have also objected regarding the public hearing process. According to the appellants, no notice of public hearing was given to the affected people both in upstream and downstream areas and the Gram Panchayats are not informed about the public hearing, the people living on the downstream left and right of the Bank were not informed and that the public hearing procedure has not been properly followed. The comments of the interested persons were not called upon by sharing the full reports with the affected persons. Further it is stated by the appellants that EIA report submitted by the project proponent and the appraisal have many lacunae including that the downstream impacts of the dam has not been considered, that the study going beyond 10 kms downstream regarding dam break analysis is of no use that after public consultation, the study made by the project authority on a partial water flow study for a longer distance of approx. 40 km only for predicting the impact on fish on the free spawning and spawning period by ignoring several other material facts like daily flow fluctuation, winter cold water flood, chapories (Riverine Islands and Tracts) of Lohit river both in Arunachal Pradesh and neighbouring Assam, devastating impact on wildlife by the winter flood are all lethal to the EC granted for the project. The appellants would state that after commissioning of 1750 MW Demwe Lower Project there will be a daily drastic fluctuation namely that everyday of 18/19 hours the flow of water will be 35 cumecs which will shoot up drastically for 5-6 hours in a day to an abnormal extent of 1729 cumecs. This will flood the chapories, affect the habitat of species like Bengal Florican and Swamp Francolin apart from affecting wild buffalo, gaur, tiger, hog deer and elephants. The representations given to MoEF by scientists and civil societies group pointing out the faulty TOR the improper downstream study including the wildlife biologist Firoz Ahmed and others have not been considered. As far as Dibru-Saikhowa National Park is concerned, there will be major fluctuation of flow in winter. Presently a flow between 400/500 cumecs is a contribution of Lohit and the contribution from Dibang joining the Lohit is around 800/1000 cumecs. It enters national parks in January, during the peaking hours where the project on the Lohit will release 1729 cumecs and the proposed 3000 MW Debang multipurpose project on the Debang river will release around 2853.6 cumecs water and that will submerge vast areas and have drastic impact on the natural ecology of the area and this aspect has not been considered by the EAC.

Even the appellants have raised a point that the project proponent has not sought for permission under the Wildlife (Protection) Act which is now not in dispute that the National Board of Wildlife has granted clearance which is the subject matter of disputed in another appeal. It is further stated by the appellants that EIA report has grossly underestimated the impact of the project on the lands of the indigenous people and environmental clearance has been granted based on an inaccurate estimate. The finding of EIA report that 1598 ha are likely to be impacted is grossly inadequate. Further the report has not taken note of the plantations in 5767 ha of land in the catchment area. Moreover, the impact on Parasuram Kund which is an important heritage cultural site has not been considered by the EIA report. It is stated that the large number of pilgrims converge to Parasuram Kund during Makar Sankranti in January. The power house and the project will pose a serious threat to the religious sentiment and sanctity and on wildlife apart from the serenity of the sacred site. The MoEF has not taken note of the same in spite of having been brought to its notice. India being a signatory to the Convention on Biological Diversity should have considered the cultural, environmental and social impact assessment regarding the developments made in the traditional place by indigenous and local communities.

It is further stated that the concerns of the citizens which were raised were referred in a vague manner without expressing independent opinions on various representations as decided in various cases of High Courts and Tribunal. Therefore the decision making process in respect of the Mega Dam suffers from gross illegality in the absence of proper consultation including non consideration of a representation made by a responsible Legislative Assembly Member. The EC granted under the impugned order is in gross violation of the principle of Precautionary Principle and the Polluter Pays Principle as enumerated by the Hon'ble Supreme Court in Vellore Citizens Welfare Forum Case and Arunachal Pradesh PCB V/s Prof. M.V. Nayadu (Retd.) and Ors. It is based on the above said averments the appellants have challenged the validity of EC granted for the project.

The first respondent, MoEF, in its reply has stated by raising a preliminary objection that the appellants having raised all these points during the public hearing and having participated in the process including before the EAC and those objections having been considered by the EAC and consequently MoEF, cannot maintain the same objections before the Tribunal. This is so, especially when an elaborate public consultation process was followed, the presentation of the project proponent as well as the objections were considered in their proper perspectives. It is also stated that all the objections including the downstream effects, effect on Parasuram Kund, geological and seismicity aspects, rehabilitations have been duly considered by the EAC which has made field visit through its subcommittee, and recommended for issuance of the EC and ultimately the MoEF has issued EC subject to various stringent conditions.

While denying all other averments made by the appellants, it is stated by the 1st respondent that the EAC has taken on record the details enclosed with Form 1 during scoping appraisal for TOR and after having been satisfied has recommended the project for scoping and issued TOR. It is stated that as per the EIA Notification 2006, Form 1, pre-feasibility report and proposed TOR were submitted to the 1st respondent which were referred to EAC which has considered on 10.07.2007 and the first respondent, on 07.08.2007 has granted scoping approval with TOR. It is stated that subsequently the project proponent has informed the EAC/MoEF that during the reconnaissance survey of allotted stretch of Lohit River, it was found that the original proposal of 3000 MW Demwe HEP Project conceived by the Central Electricity Authority (CEA) with FRL at 490m was to cause submergence of Kamlang Wildlife Sanctuary (KWLS), and it was in order to avoid the same that the project was divided into two stages namely Demwe Lower HEP (Project) and Demwe Upper HEP within the allotted stretch given by the State Government of Arunachal Pradesh. A revised Form 1 was received by the 1st respondent for scoping on 01.02.2008 and the EAC directed the Model TOR approval for North-East project to be made applicable to the project to Demwe Upper HEP and accordingly the 1st respondent has issued a revised TOR on 25.03.2008, in order to achieve 3000 MW project in two stages.

As per the stipulation of the 1st respondent in the revised TOR, the subgroup of EAC made a field visit of the project site on 1st and 2nd June 2008 and recommended additional conditions in TOR and accordingly the 1st respondent has stipulated additional TOR on 04.08.2008. Further, the project proponent has apprised the MoEF from time to time of various parameters like Full Reservoir Level (FRL), Maximum Water Level (MWL), Water Availability Series, Power Potential Studies and other Technical materials, and accordingly additional TOR have been issued to the 3rd respondent.

It is specifically stated that the EAC consisted of 14 Experts from various fields and considered each and every aspect of TOR and even though Mr. P. Abraham was the Chairman of EAC, decisions were taken by EAC collectively and Mr. P. Abraham has never attempted to influence the members who are independent. Regarding the river Basin study it is stated by the MoEF that world wide it is recognised that River Basin is developed in a cascade manner to work out the cumulative impact of all the projects in the River System. The purpose of basin study is only to supplement the Environment Management Plan efforts and to optimise them for ecological conservation and social upliftment of the area by additional measures. Moreover, there was no cumulative effect in the lower projects which are in less eco-fragile zone and that too it being the 1st project. The EAC has noted that on Lohit river Six HEPs are likely to come and except the said projects, no other projects were presented before the MoEF for EC. Therefore, the EAC has decided that basin study is required for understanding the capacity of the river for generating hydropower after fulfilling the requirement of water for local habitants and aquatic life. The MoEF while granting EC has delinked the Demwe Lower and Upper Project from the completion of basin study as it was done in Teesta, Sikkim. Further, the delinking was done to evolve a suitable framework to guide and accelerate the development of hydropower projects in the North-East. It is also based on IMG in which it was suggested that in view of uniqueness of the fragile eco-system in North East Region (NER), due importance need to be given to environment and forest concerns while planning the hydropower project. It was also suggested that EIA studies may be taken up basin wise in place of individual project to know the downstream impact on development projects in cascading manner and minimum release required to maintain aquatic life downstream. Therefore, according to the MoEF, there is nothing wrong in deciding to delink the Lower and Upper Demwe Projects from the river basin study.

While denying that the process of scoping was having any lacuna, it is stated that the project proponent in Form 1 has given information related to change in flow regime, which is the normal consequence in the operation of any hydropower projects. It is also the case of the MoEF that, as no requirement for acquisition arose, the Catchment Area Treatment Measures and Compensatory Afforestation Scheme is not called for. It is also stated that no hazardous waste is to be created except explosives for blasting purpose for which the project proponent has to obtain permission in accordance with law. It is also stated that the Important Bird Area (IBA) site referred by the appellants is located beyond 15 Km from the project site.

It is also stated that the impact regarding influx of labour has been considered and that the project which would span for a period of 5 years with diverse activities, the labour and technicians required would be around 8933 and regarding the impact due to involvement of influx, the same has been addressed by the EIA and an Influx Management Plan has been prepared as part EMP with measures like segregation of the work force, health screening of labourers before and after their employment, sensitization of outside labourers; culture and local traditions, to provide for designated labour camp to minimise interference with locals and environment, sanitation etc. It is stated that in fact the EC has provided elaborately about this.

The representation of Mr. Krong was considered after verifying from the project proponent. It also stated that after TOR was issued, the 3rd respondent has made an extensive study and submitted its EIA report. The proposal for EC was submitted by the project proponent on 01.10.2009 and EAC in its appraisal meetings on 22.10.2009, 16.11.2009 and 16.12.2009 considered it. Regarding the public hearing it is stated by the MoEF that the State Pollution Control Board has conducted the same as per the rules and large number of people have participated. The EAC has considered the methodology in respect of each of the parameters and recommended for issuance of EC and ultimately the MoEF, after having been satisfied with the reasons given by the EAC, has granted EC on 12.02.2010.

Regarding the flows it is the case of the MoEF that diurnal variation due to project operation is associated with all hydroelectric projects and such variation is also associated with Demwe Lower HE Project. It is specifically stated from the approved hydrological series that flow are in no way significantly higher than the non-monsoon floods witnessed by the Lohit River System. It is also stated that the hydro projects are site specific in nature with varying ecological parameters.

While dealing with the braided river course of downstream, it is stated by the MoEF, that while the project proponent has sufficiently made study and answered, alternative arrangement for migrating fishes by trapping and transportation is also widely recognised and in fact recommended by the World Commission on Dams Environmental Issues, Dams and Fish Migration, Final Drafts, June 30 of 2000. Regarding the impact of Demwe Lower HEP on Dibru-Saikhowa National Park, it is stated that the said park is situated 100 Km downstream from the dam site. During monsoon period where reservoir will be operated at MDDL, the river flow will be normal as there is no storage. In non-monsoon period water will be released daily during power generation, and no impact is envisaged on the park.

Regarding the habitations of Gangetic dolphins it is the case of the MoEF that as per the paper by Dr. Abdul Wakid, the area mentioned in the report are located far away from the project site. The nearest Dolphin sighting site, Tengapanimukh is at aerial distance of 63.71 Km and others like Uriamghat is 103.4 Km and Balijan is at 124.74 Km. Therefore, the project has no impact on Dolphins. Likewise, regarding the impact on chapories, the aerial distance of Urpad beel is about 597 Km and Deeper is about 501 Km from the dam site. The nearest chapori from the dam site is stated to be about 33 Km along the river Lohit. Therefore, the impact on the chapories is minimal. Regarding the sediments, the MoEF states that the project contains adequate safeguard to flush out the possible sediments. While meeting the averment regarding the river bed erosion by the project, it is stated by the MoEF that the project proponent has clarified that due to maintenance of the reservoir at MDDL of EL 408m, the incoming flood will be moderated in the available reservoir having a capacity of 171.2 M. cum between MDDL of 408 m and FRL 424-8. As the velocity will be lower there is no possibility of bank erosion. Again regarding the impact of boulder collection from river bed for construction, the MoEF has stated that the project proponent has made clear that the excavation are from non-river bed areas and elaborate quarrying measures have been explained. Therefore, according to the MoEF, major effect of downstream impacts have been clarified by the project proponent and the EAC as well as the MoEF are satisfied about the process.

Regarding the compensatory afforestation, it is stated by the MoEF, that the project proponent has undertaken to do so in degraded forest land identified by the Forest Department. Afforestation shall be raised in the area of 2818 ha and degraded forest land identified in lieu of 1408.30 ha of forest land to be diverted for execution by the project. Again, while meeting the averments regarding the Parasuram Kund proximity, the MoEF has stated that in fact on deliberation with the Parasuram Kund Improvement Society (PKIS), release of water during mela period was agreed to be regulated with various safeguards and the regulatory measures for preserving Parasuram Kund and protecting the devotees during "mela period" have been duly incorporated in the conditions of EC. Again regarding the preservation of Biodiversity, it is stated by the MoEF that the project proponent is directed to fulfil the guidelines issued by Akwe:Kon guidelines under convention on Biodiversity.

Therefore, according to the MoEF, the impugned EC has been granted to the 3rd respondent after meticulous study make by EAC and independent consideration by the MoEF itself by following the entire procedure contemplated under the EIA Notification of 2006. The MoEF has also specifically stated that monitoring of the project will be done as continuing process based on environmental management plan and as and when required, additional mitigative measures will be stipulated by the MoEF and therefore the Appeal is liable to be dismissed.

The 2nd respondent, the Arunachal Pradesh Pollution Control Board, in its reply while raising preliminary submissions, has stated that the 1750 MW Demwe Lower Hydro Power Project envisage the construction of a concrete gravity dam of 163.12 m height above deepest foundation level (124.8 m above average river bed level) across river Lohit in Lohit District, Arunachal Pradesh, with the total project cost of about Rs.13144.91 crores, scheduled to complete in 5 years. Even though the appellants have raised two issues of scoping and public hearing, the Board is concerned with the conducting of public hearing as per the EIA Notification 2006. It is stated by the Board that the public hearing was arranged in a systematic, time bound and transparent manner ensuring widest public participation at the project site and in its close proximity. It is the case of the State Pollution Control Board that on receipt of the application from the project proponent, the time and venue of public hearing was finalised after consulting the Deputy Commissioner of Lohit and Anjaw districts. Notices of public hearing were issued in an English, local Mishmi dialect and in a Hindi Newspaper giving wide publicity. The EIA report and the Executive summary was clearly mentioned during the public hearing and the documents were made available in all offices accessible to the public. The details of public notices advertised in various newspapers as stated in the reply of the Board shows that publications have been made in 6 Newspapers in 3 languages as stated above. In addition, the Deputy Commissioner Lohit District, Tezu and Deputy Commissioner Anjaw District, camp-Tezu has also issued circulars enclosing copies to all the affected villages. The Executive summary of the EIA report was uploaded in the Website of the Board to make it available in public domain.

It is stated by the Board, that the public hearing proceedings were conducted as per EIA Notification 2006 and as many as 509 persons attended public hearing at Parasuram Kund Mela Ground in Lohit district on 11.08.2009 and 237 persons attended at Paya in Anjaw District on 12.08.2009. The public hearing has been video-graphed and sent to MoEF. It is stated that Mr. Kapriso Krong was present in the public hearing on 11.08.2009 at Parasuram Kund and also on 12.08.2009 at Paya (Machima Community Hall) and he was given ample opportunity and he participated in full swing. Therefore, according to the Pollution Control Board, there is no fault in conducting the public hearing.

The respondent no. 3, the project proponent, in its reply, in the preliminary objection stated to the effect that all the points raised in the appeal were raised by the appellants in detail throughout the proceedings including at the time of public hearing before EC was granted by the MoEF, and the same have been elaborately considered by all the authorities and decision arrived at and at this stage the appellants cannot be permitted to raise the same once again.

While dealing with the merits of the appeal, while it is the case of the 3rd respondent that when admittedly, the 1st appellant is not working in Arunachal Pradesh, filing of the appeal is an abuse of process of law and filed without loco standi. It is also stated that the project proponent has strictly followed the provisions of the EIA Notification 2006, while denying all the other allegations. While dealing with the averments regarding the scoping, it is stated that the Demwe HEP (3000 MW) is one of the Prime Minister's 50,000 MW initiatives. The PFR was made by Central Electricity Authority (CEA) with Full Reservoir Level (FRL) at EL 490 m to generate 3000 MW. As per the EIA Notification 2006, the 3rd respondent has submitted Form 1, Pre-Feasibility Report of Demwe HEP (3000 MW) and the proposed Terms of Reference to the MoEF for consideration by EAC on 10.07.2007 and the MoEF has granted scoping approval on 07.08.2007 along with TOR. However after availing of TOR, during reconnaissance survey of the stretch of Lohit River and additional data collection, it was found that 3000 MW Demwe HE Project as conceived by the Central Electricity Authority would cause partial submergence within the Kamlang Wildlife Sanctuary (KWLS). It was to avoid the submergence that the project was split into two as Demwe Lower and Demwe Upper HEP and accordingly revised Form 1 was submitted to MoEF on 01.02.2008 for scoping. The scoping approval of TOR was granted by MoEF again on 25.03.2008 for Demwe Upper HEP. It is stated that the TOR has been issued as per the prevailing model Terms of Reference for hydropower projects in North East.

It is the case of the project proponent that after TOR, the EAC, considering the fact that Arunachal Pradesh is hotspot for Bio-diversity, has decided to make a field visit and issue further TOR based on such visit. A sub-group of EAC has in fact visited the spot on 1st and 2nd June 2008 based on whose recommendations, the MoEF has issued additional TOR on 04.08.2008. A Detailed Project Report (DPR) was submitted to the CEA in September 2008 for concurrence as per Section 8 of the Electricity Act 2003. The CEA has made appraisal and considered various parameters like Full Reservoir Level (FRL), Maximum Water Level (MWL), Water Availability Series, Power Potential Studies and other technical parameters and finalised along with the Central Water Commission and informed to EAC/MoEF.

It is stated that the EAC has approved the installed capacity of the project to 1750MW, pursuant to which the project is to release 35 cumecs of minimum flow downstream of the dam through a separate unit of 40 MW which will run continuously as a base unit for sustenance of aquatic ecology of the river stretch downstream immediately below the dam. Further it is stated that a comprehensive Environment Impact Assessment/Environment Management Plan study was undertaken by the Centre for Interdisciplinary studies on Mountain and Hill Environment, Delhi University (CISMHE) based on base line data collection, prediction of impacts and formulation of Environment Management Plan as per TOR.

As per EIA, the public hearing was to be held in the Lohit and Anjaw Districts of Arunachal Pradesh in accordance with EIA Notification 2006. Accordingly notice for public hearing was given in the newspapers as stated by the State Pollution Control Board in its reply. Wide publicity was made about the public hearing and the executive summary of the report were made available in the office of the District Magistrate of Lohit and Anjaw, Arunachal Pradesh, Zila Parishad of Lohit and Anjaw, District Industries Office of Lohit and Anjaw, Regional Offices of MoEF Shillong and MoEF, New Delhi. As stated by the Board, public hearing was held at Parasuram Kund, Lohit District and Paya, Anjaw District. People from downstream area villages like Chongkham, Alubari, Naupatia, Kyaung, Tissa, Namsai etc have participated and raised issues like property survey and compensation for land, Basin studies, change of installed capacity, R and R policy, provision for medical, health and educational facilities, impact on religious places like Parasuram Kund, Nimka, Tello, impact on Kamlang Wildlife Sanctuary, influx of labour, employment and contracts to locals, Dam District , geology and dam safety aspects and submergence and downstream impacts etc. According to the 3rd respondent, majority of the people have welcomed the project. Copies of the public hearing proceedings were forwarded by the Board to the Deputy Commissioner of Anjaw and Lohit on 04.09.2009 to display at the designated places as per EIA Notification 2006.

The EAC has subsequently incorporated based on the views expressed in the public hearing, in the draft Environment Impact Assessment/Environment Management Plan Reports and final copies were sent to MoEF on 01.10.2009. The EAC has considered the proposal for EC in its meeting on 22.10.2009. Based on the detailed presentation and discussions and all other material things post public hearing, the EAC has recommended the project for EC subject to submissions of additional information and clarifications. The additional information and clarification were furnished on 09.11.2009 and the EAC in its next meeting held on 16.11.2009 considered the same. It is stated that during public hearing representatives like Mr. Krong and Mr. Suraj Tayan participated and in the meantime number of representations were received by MoEF, by group of citizens and civil society, Assam, Mr. Feroz Ahmed and Dr. Abdul Wakid of Aaranyak, North East affected Area Development Society, Mr. Suraj Tayan, Mr. Himanshu Thakkar and many others and all the points raised in this appeal have been raised. After the response submitted by the project proponent on 13.11.2009, the EAC in its appraisal meeting held on 16.11.2009 reiterated the recommendation for the project for issuance of EC subject to submission of some more response, which was submitted on 17.11.2009, 02.12.2009 and 14.12.2009 and the same was again considered by EAC on 16.12.2009 and recommended issuance of EC and accordingly, after considering all the aspects, the MoEF has issued EC on 12.02.2010. Therefore, according to the project proponent, as the studies were conducted in greater detail by all authorities, it is incorrect to say that the procedure under EIA Notification 2006 were not followed.

It is stated that EAC is a broad based committee consisting of Experts from hydrology, water resources, forestry, ecology, fisheries, socio- economy, geology etc and all decisions were taken collectively and the entire scoping process has been done in detail. The EAC is only an advisory body and it is ultimately the MoEF which takes decision. It is denied that the delinking was done because of the influence of Mr. P. Abraham in the EAC as its Chairman. It is the case of the 3rd respondent that all the particulars given in Form I are correct and the correctness of everyone of information has been verified at every stage. It is also stated that the project proposal is a Run of the River Scheme with divisional storage and there is no diversion or consumption as the water will be released downstream immediately. The 3rd respondent also denies the averments regarding the winter flood. It is stated that the hydro-electric projects are basically peaking stations, providing the Nation muck deficit peaking power.

It is the case of the 3rd respondent that as per the TOR, study was made with respect to Catchment Area Treatment and Compensatory Afforestation in consultation with the State Forest Departments as explained in detail by the MoEF in its reply. All the rationale behind the contents of Form 1 have been explained by the project proponent and there was no suppression of any material fact or misleading statement. It is also stated that in hydropower projects no hazardous waste is generated or handled except the blasting materials. It is stated by the project proponent that the question relating to downstream impact has been raised in the public hearing and were answered properly. The downstream impact assessment study has been carried out as per the TOR similar to other hydropower projects in the North-East. 10 Km radii from outer most components of the project area comprising of 83361 ha have been taken as study area. In addition to the 13 Km of river stretch which falls within 10 Km study area, river stretch upto 58 Km has been studied with respect of aquatic ecology, minimum flow, dam break analysis and disaster management etc. Independent fisheries expert had carried out the study on evaluation of flow requirements for various fish species in the downstream stretch for their sustenance and likelihood of breading grounds etc. and accordingly mitigating measures have been furnished. The project proponent has also in detail chosen to state regarding identifying fish migrating path, alterative arrangements for migratory fishes, changed flow pattern of downstream of the dam due to the reserve operations, Impact of Demwe Lower Hydroelectric project on Dibru-Saikhowa National Park, Impact of the dams in Brahmaputra on the Gangetic Dolphin, impact on chapories, sediment trappings, riverbed erosion as detailed by the MoEF in its reply. Thus all the major impacts of downstream river have been considered fully by the EAC.

While reiterating that the river basin study is not to supplant Environment Impact Assessment/Environment Management Plan of a project but to supplement the plan to optimize them for ecological conservation and social upliftment of the area, it is stated by the Project proponent, that the project was the Lower Most project in the cascade development of the Hydropower potential of the Lohit Basin and was also the first planned project in the Lohit Basin and located in the area which was much less ecologically fragile and prone to environmental degradation. It was considering these facts the EAC observed that the process of EC for Demwe Upper and the project in question should not be linked with the completion of the basin study. It is further stated that the question regarding the impact due to involvement of influx has been adequately addressed. As the river Lohit, a tributary of river Brahmaputra, contributes only 18% annual average flow, the downstream impact study of Lohit on Brahmaputra is not necessary and therefore the Dibru-Saikhowa National Park and Biosphere Reserve which is more than 100 Km downstream from the project is also not affected.

Regarding Parasuram Kund, while reiterating that the apprehension of the appellants have been sufficiently answered in the EAC as well as conditions of the EC, the project proponent would state that as per EAC's desire, the project proponent has enhanced the financial allocation for protection of the Kund from 2 crores to about 10 crores and would maintain adequate water flow in the Kund during Mela to protect the devotees and maintain the holy and serene atmosphere with all necessary measures. Regarding the muck collection and averments made therein by the appellants, the project proponent reiterates the reply given by MoEF as enumerated above in detail. The project proponent has also reiterated the reply by MoEF regarding the compliance of Akwe: Kon guidelines under convention of Biodiversity.

It is stated that scoping, public hearing and every other requirements for EC as per the EIA Notification 2006, have been scrupulously followed and EAC has critically examined all aspects including the major aspects regarding the downstream impact and MoEF has considered each one of them which cannot be found fault with by the appellants. It is also stated by the Project Proponent, that it has already spent an approximate amount of Rs 240 Crores for conducting various studies and for obtaining various clearance. Accordingly, it is prayed that the appeal should be dismissed with cost.

The 4th respondent, Government of Arunachal Pradesh, in its reply has stated that Arunachal Pradesh which is the North-eastern most state in the country is having immense Hydroelectric power potential. The State is drained by 8 major river basins at Tawang, Kemeng, Subansiri, Dikrong, Siang, Dibang, Lohit and Tirap. The hydroelectric power potential of the river basins are assessed at 57000 MW. In addition 2000 MW hydropower potential can also be harnessed by small hydroelectric projects. The status of hydropower potential is more than 1/3rd of India's total estimated hydropower potential of 1,47,000 MW. The Central Electricity Authority in 2010 has given statistical particulars that the country till May 2011 could harness only 37817.40 MW which is only 26%. The peak power deficit of Arunachal Pradesh is 15.8%. The power deficit has hampered all developments in the State.

In line with the National Policy, the State has also formulated its own Hydropower Policy in 2008 and small hydropower policy in 2007. In spite of high potential, the State is able to augment only 450 MW which is less than 0.79% of the total potential. The State Government has entered a MOU with Athena Energy Ventures Pvt. Ltd. (AEVPL) on 09.07.2007 entrusting the development of Lohit river basin in one or more stages between elevations from EL + 589 m upto EL + 300 m. In order to avoid submergence of Kamlang wildlife Sanctuary, the project has been planned for the development in two stages in consultation with MoEF as Demwe Upper HEP near Mompani and Demwe Lower HEP near Parasuram Kund. The State has been constantly holding review meetings with project developer and obtained requisite clearance such NOC from State Fisheries Department, State Irrigation Department, Cultural Department, for Utilization of water from Lohit River, permission to carry out survey and investigation from forest department apart from State Power Department for two stages of developments. According to the 4th respondent, the appellants who are not undertaking any of their activities in the State of Arunachal Pradesh, cannot be permitted to stall the development of State and the appeal by them is not only an abuse of process of law but also they have no loco standi.

While reiterating the grounds stated by the 3rd respondent in its reply stating that scoping, public hearing have been done as per the provisions of EIA Notification 2006, and it is stated that the appellants are attempting to put an end to the project somehow or other. The State has also in detail responded to various aspects raised by the appellants namely, scoping and TOR approval process, identification of project affected families, public hearing process, EIA and EAC, Downstream impact due to flow variation on wildlife habitats including Important Bird Area, River Dolphins and Dibru-Saikhwa-National Park, cumulative impacts of multiple projects in Lohit River Basin, relevance of Forest Right Act for area under Catchment Area Treatment, and compensatory afforestation, impact on Parasuram Kund, and balance of convenience. The State has specifically brought to the notice of the Tribunal, a report submitted by a committee constituted by the National Environment Appellate Authority (NEAA) dated 03.05.2010, with three Members consisting of Shri M.K. Patil, Conservator of Forests, State Forest Department, Arunachal Pradesh, Dr. Awadesh Kumar, Assistant Professor, North East Regional Institute of Technology, Itanagar and Dr. P. Nath, Director, State Fisheries Department, Itanagar to study the downstream effects of the project on River Dolphins and important Bird Areas. The Committee after making a thorough study of all materials including the report on River Dolphins and Important Bird Habitats and visited the site during the 3rd week of February 2011 and last week of March 2011 and concluded that there are no adverse downstream impacts foreseen on River Dolphins and Important Bird Habitats due to the project during construction as well as in operational phase. Therefore, the 4th respondent State, has prayed for dismissal of the appeal as not maintainable and as abuse of process of law.

The 5th respondent Mr. P. Abraham who was impleaded subsequently by an order of this Tribunal dated 17.07.2013, in his reply, while narrating the posts held by him apart from stating that he worked in the Power Sector of the Government for 30 years and that he has published many books to his credit, has clearly stated that while holding any post as Power Secretary in any organization, he never took any equity interest or monetary interest in any company in which he has been in the Board of Directors. His only interest is being in the Board of Power Sector companies was to share his knowledge in the field. He has stated that the Government of India, on 03.04.2007 has reconstituted the EAC for River Valley and Hydro Electrical Projects and he was nominated as its Chairman. The EAC consists of Experts from various fields throughout the country and in respect of hydro projects, decisions are taken by EAC by the collective wisdom with all Members of the EAC taken together. According to him, during his Chairmanship, there was no complaint from any Member of the EAC and discussions of the Member were free.

He has also stated that he was nominated as an independent/Non- Executive Director of PTC India Ltd. promoted by Central PSU's, as a premier Electricity Trading licencee of India, and listed company in BSE and NSE from 01.06.2004 to 28.09.2011. When M/s Athena Energy Ventures Pvt. Ltd (AEVPL) was incorporated on 12.03.2007, and PTC India Ltd has become a share holder in the company, the said company has not decided to invest in Hydro Electric Projects nor Demwe HEP has been envisaged as a project to be undertaken by AEVPL. According to him, the PTC has primarily become a member to perform the role of providing fuel supply, logistics and tolling services through its subsidiary. According to him, scoping is only the intermediate process and at that stage it is highly premature to conclude the environmental sustainability of any project.

While meeting the allegation made against him by the appellants that he being the Chairman of EAC ignored the likely impacts on cultural sites of Parasuram Kund, Kamlang WLS, Biodiversity, wildlife habitat, IBA and downstream impact etc. while denying the allegations as false he has reiterated that the decisions were collective, joint and unanimous by all Members of the EAC. He has also stated that during his tenure of 2 years in the EAC, no undue favour was shown to the Demwe HEP and he do not have any pecuniary or any other intent whatsoever in Athena Demwe Power Ltd. He has also stated that he has resigned as Chairman of EAC on 22.06.2009 voluntarily.

Mr. Ritwick Dutta, learned counsel appearing for the appellants, has raised many issues while challenging the EC granted by the MoEF to the 3rd respondent project proponent for the 1750 MW Demwe Lower Project. The first contention raised by him is that the participation of Mr. P. Abraham, as the Chairman of EAC in the preliminary scoping stage vitiates the entire process culminating into the issuance of EC to the project proponent for the reason that the said Mr. P. Abraham being a Director of PTC India Ltd. which is one of the founder promoter of M/s Athena Ventures Private Ltd. which has taken up the project. Therefore, according to him, the participation of an interested Director of the promoter company of the project proponent at the earliest scoping stage has a definite tendency of influencing the decision of EAC. As the application can be rejected at the initial stage of scoping as per the EIA Notification, 2006, the participation of the interested Director as the Chairman of EAC has thwarted such action. According to him, the scoping is the first foundation stage and it plays a significant role of permitting preconstruction activities and site clearance. He would rely upon a Judgment of the High Court of Punjab and Haryana in Vijay Bansal and others Vs State of Haryana and others in CWP No. 2013 4/2004 dated 15.05.2009 to contend that the "relevant environmental concerns" stated in the EIA Notification 2006 forms the 'soul' and 'spirit' of the Notification. He also cited a Judgment of the NGT in Bharat Patel Vs Union of India in Application No. 55/2013 (WZ) wherein it was held that TOR could be challenged under Section 14 of NGT Act, 2010. According to him, the siting of the project which should have been considered in the scoping stage has been ignored. He also submits that at that stage the Cultural heritage of Parasuram Kund and downstream impact has been ignored. The presence of Mr. P. Abraham as the EAC Chairman would result in conflict of interest and prejudicially affects the neutral decision making process. It establishes bias. Further, it was because of the objections raised by the civil society groups the then Minister has directed Mr. P. Abraham to resign. According to him, as per EIA Notification 2006, the Chairperson of EAC has to endeavour to reach consensus in each case and thereafter mere non objection raised by any Members of EAC is not a sufficient defence for the possible bias which the Chairman would have exercised on the Members of the EAC by citing the clause in EIA Notification 2006. He submits that the selective delinking the project with Basin study is the obvious influence by Mr. P. Abraham. He submits that delinking is arbitrary and illegal. According to him, none of the other projects in the Lohit River Basin have been appraised for grant of EC pending completion of Lohit river basin study.

According to Mr. Dutta, after resignation of Mr. P. Abraham which was done on realizing the conflict of interest, the EAC ought to have taken a revision of the decision already taken. Therefore there was a likelihood of bias and the EAC should have revised the decision and its failure would vitiate the subsequent proceedings. He has also submitted that the failure of EAC in deliberating on the public hearing during appraisal whether accepting or rejecting the objections is a serious lacuna.

He submits that downstream impact study has not been effected and ultimately people in downstream of the project especially in Assam like the Appellants are affected. The absence of downstream study affected their livelihood. He has also submitted that the impacts on chapories of the Lohit river has not been studied. The impact of flow fluctuations which are to be looked in terms of the entire complex of water bodies, riverine islands, grassland and forest has also not been done. The three Member Committee constituted by the State of Arunachal Pradesh has been widely criticized by the wildlife biologists from North East like Dr. Gautam Narayan, and Dr. Abdul Wakid. He also submits that impact of peaking operation on downstream area including Dibru-Saikhowa National Park has not been studied. According to the learned Counsel the respondent's stand is misleading. He has also referred to some of the views expressed by Experts to support his contention that such study comprehensively is a must for approval of such mega projects. He submits that the post clearance downstream study is against the precautionary principles and principles of sustainable development.

The learned Counsel also submits that the impact of endangered wildlife and their habitat are not considered by the EAC. According to him, Kamlang Sanctuary cannot be the primary motive but it must be the economic viability of cascade development along the river stretch. He submit that the bifurcation 3000 MW project into two was mainly based on the upstream investigated site at Mompani and it is purely a commercial angle rather than environmental issue. The principles of protection of endangered species has been held to be imperative by the Hon'ble Supreme Court in the judgment reported in (2013) 8 SCC 234 and species like Bengal Florican and Wild buffalo ought to have been studied before clearance. He also submit that non study of impact of Lohit Basin study and cumulative impact of the projects in the basin are sufficient to hold that the EC is illegal.

While referring to the non consideration of the Cultural impact studies including the Parasuram Kund, he submits that it results in appropriate siting of the project. He submits that on cultural impact earlier projects like Lohari Nagarpala, Pala Maneri and Bhaironghati have been scraped. He submits that Parasuram Kund being a cultural heritage, it is declared as an Archaeological heritage of Arunachal Pradesh. The excavated materials if loaded in the area the aesthetic sense and serene nature of the Kund will be affected and the same has not been considered. According to him, the importance of Parasuram Kund has been well recognized by the Hon'ble Supreme Court in its Judgment in State of Arunachal Pradesh V/s Khudiram Chakma reported in 1994 SCC(1) (Suppl) 615. Mr. Dutta while concluding his submissions, has reiterated that as the EC is vitiated for more than one reason, wildlife clearance has to go, as the same was vehemently opposed by all the non official Members. He again reiterates that by not making the downstream study, there is a total breech of precautionary principles and therefore, it is his submission that the EC should be set aside.

Per Contra, it is the contention of Mr. Tarun Johri, the learned Counsel appearing for the 3rd respondent, project proponent, that as per the project study, minimum flow of 10% of water was to be maintained and in fact downstream study has been conducted and therefore it is not proper to say that no study was conducted and the project has been approved just like that. It is his submission that even for siting, a thorough study was conducted by agencies like NEEPC, Brahmaputra Board, NHPC from 1980 till finalisation of Demwe Lower HEP by the 3rd respondent. According to him, 4 alternative sites were suggested but it was ultimately found that site about 1600 m upstream of Parasuram Kund Bridge was considered to be topographically and geologically best. This was referred by project proponent to the Committee for River Valley and Hydroelectric projects of MoEF and after detailed discussions MoEF has approved the revised TOR with two conditions that the Kamlang Wildlife Sanctuary shall be kept outside the submergence area of the project and keeping in view the seismologically sensitive area, dam height should be kept minimum as required for power generation purpose. Therefore, it is not proper to say that no siting criteria was followed at the time of scoping, according to the learned Counsel.

It is his submission that considering the proximity of the Kamlang Wildlife Sanctuary, a Biodiversity and Wildlife Management Plan was formulated in the EMP with the objective of maintaining a sustainable approach between customs and culture of the local communities and biodiversity conservation etc. apart from Forest Protection Plan and it was after careful study especially of dam safety, downstream impact, minimum flow, protection measures of Parasuram Kund, geological and seismicity aspects, sedimentation and silt flushing etc. raised in various representation, EC was granted and there can be no fault in that at all.

Regarding the status of projects coming up in Arunachal Pradesh, while contradicting the stand of the learned Counsel for appellant that MOU have been entered for more than 125 projects, Mr. Johri, would submit that out of 14 projects for which EC was granted only 4 are under construction and only 1 has been commissioned in Subansiri, other than the Lohit project for which EC has been granted by the MoEF on 10.02.2010 which is impugned and NWLB has also granted its permission and stage II clearance was given on 03.05.2013 which is also challenged in Appeal No. 9/2010. Therefore, it is not correct to give a wrong picture as if many projects have come in the area.

Regarding the effect on Parasuram Kund, the learned Counsel for the project proponent would submit that there are no major impacts envisaged. Infrastructure developments, muck disposal system protects sufficiently the cultural site. It is his submission that a society which is maintaining the Mela called Parasuram Kund Improvement Society has given no objection and the project proponent would increase the payment from 2 Crores to 10 Crores to be spent for the benefit of the devotees. In fact, the EC has taken care of the same by imposing strict conditions relating to release of water during the Mela period. The public hearing and consultations have been considered for such imposition of stringent conditions.

While meeting the arguments relating to scoping raised by Mr. Datta, Mr. Johri would submit that no projects are rejected at scoping stage except when on the face of it such projects cannot be sustained. Mr. P. Abraham was an independent Director of PTC India Ltd, but as a Chairman of EAC in respect of Demwe Lower HEP, all decisions were taken collectively. He submits that in the absence of any instance that any of the Member of the EAC have raised objection at scoping stage, it cannot be said that Mr. P. Abraham has influenced any Members. He also submits that scoping is in the most preliminary stage and even if some mistakes are committed the same can always be rectified by additional TOR and as such it has been done in this case at a later stage. The project being site specific there is no scope for any one influencing the decision regarding site identification. He submits that in any event as stated by him the above site has been choosen after thorough study and there is absolutely no scope for any mistake.

Regarding delinking of EC from Lohit river basin study, the learned Counsel while denying the contention raised by the learned Counsel for the appellant that it is against the precautionary principles, would submit that such delinking was not done only for Demwe Lower HEP and such delinking has been done in many projects like Kalai-I, Kalai-II, Hutong II HEP, Anjaw HEP 280 MW, Raigam HEP, Gimliang HEP 80 MW and Gimliang HEP 74 MW. He also submits that the Inter- Ministerial Group (IMG) has recommended not to hold up EC pending basin study as such study is elaborate and comprehensive would take 1 to 2 years. He has also stated that while Mr. P. Abraham was involved only in the scoping stage, actual environmental appraisal and clearance was considered by EAC chaired by Shri. Devendra Pandey and therefore there is no question of likelihood of any bias.

While dealing with the contention of Mr. Dutta about peaking operation and Diurnal variation in Demwe Lower HEP, the learned Counsel for respondent no. 3 would submit that hydro power stations have inherent ability of instant starting, stopping, managing of load variations and help in improving the reliability of the power system, particularly for meeting the peaking requirements and by taking note of the study for a period of 19 years about flow variation, he would submit that the project is not going to alter or increase the natural variation significantly as revealed by the scientific study. He has also submitted that the appraisal process carried out by the EAC shows that it was considered for 3 times and in fact every time the EAC required clarifications from the project proponent based on which additional information have been furnished. Therefore, it was by proper application of mind entire procedure have been done and no distraction can be drawn. Therefore, he submits that the appeal is devoid of any merits and is liable to be dismissed.

Mr. Vivek Chib, learned Counsel appearing for the MoEF, while reiterating the contents in reply and also adopting the arguments advanced on behalf of the project proponent, would submit, that at the stage of scoping there is no possibility of any bias especially when Mr. P. Abraham was not in the appraisal process and therefore the Utkash Mandal Judgment has no application. His submission is that the entire process as envisaged shows that there is a proper application of mind and in fact TOR was issued by the MoEF after the field visit by a sub-committee from among EAC, in which Mr. P. Abraham was not a party and therefore the decision has been taken strictly in accordance with the EIA Notification 2006. Even if there is no application of mind, according to the learned Counsel, in accordance with EIA Notification 2006, this Tribunal sitting as a second Appellate Authority to decide question of law akin to Civil Court power under Section 90 of the Code of Civil Procedure, cannot interfere unless there is gross violation of law or Notification itself. He submits that under EIA Notification 2006, Clause 7(IV) while speaking about "appraisal" clearly states that EAC while recommending the project shall stipule special or general conditions and only in cases of rejections reasons must be given. When that is the legislative intention, imposing of conditions while granting recommendations or EC itself amounts to application of mind and cannot be questioned as arbitrary. The said clause read with Appendix V shows that the minutes of the meeting of the EAC to be read together.

He further submits that the Tribunal being a creature of law must act within the boundaries of law by which it is created, and must take a holistic view as to whether there has been an application of mind by EAC and MoEF before granting EC. He submits that Utkash Mandal Judgment was given without considering Appendix V of the EIA Notification 2006. He also submits that in the Judgment of the NGT Eastern Zonal Bench, Bhopal in Ramesh Agarwal Vs Union of India and Others, the Tribunal has taken such a stand in paras 28, 31 and 32.

He also submits that the Hon'ble Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education Vs K.S. Gandhi and others reported in (1991) 2 SCC 716, at Para 20 has clearly stated that "unless the rule expressly or by necessary implications exclude" and that when read Clause 7(IV) with Appendix V, one can understand about the specific exclusion of reasons. To substantiate his case about the application of mind and reasons to be given or nor he relied upon the Judgment of the Supreme Court reported in (2004) 4 SCC 615 and (2010) 9 SCC 486.

Mr. A.D.N Rao, the learned Counsel appearing for the State of Arunachal Pradesh, the 4th respondent has submitted that the State which is situated in the extent of 83743 sq km, has 67321 sq. km forest area with about 80.1 per cent forest cover. There are 8 major river basin as stated in the reply and presently Lohit river basin has the potential of hydro-electric plants covering 57000 MW and 2000 MW of small hydro electric stations against the National potential of 1,47,000 MW. Therefore, 1/3 of power potential of the country is available in the State. In spite of such huge potential, as on date the State is power deficit producing a meagre 450 MW Power, which is only 0.79 per cent of its total potential in the State. In the Lohit River Basin, 7 projects were proposed out of which only one Demwe Lower HEP is given EC and FC. He has also brought to the notice of the Tribunal that the Tribunal in M.A. 53/2013 in its order dated 18.03.2013 has rejected the contention regarding public hearing that State of Assam is not a party. The impleading petition by Assam was rejected even though in the FC Assam is a party. Property connected with the project which is in 70 Km as crow flies, 60 Km lies within the State of Arunachal Pradesh. He submits that regarding public hearing notice as against the 2 Newspapers required as per EIA Notification 2006, 6 publications were effected so as to give wide publicity of the proposed project.

In the public hearing 519 people participated at Parasuram Kund and 237 in paya, apart from many representations made in writing. For want of electricity the State is using 230 lakhs litre of diesel annually emitting 50 lakhs tonnes of carbon monoxide and over 40 years, about 250 million of carbon dioxide are emitted which is not only dangerous to human habitation but also causes global warming. Therefore, HEP is a matter of necessity for the State not only for its economic survival but also to retain the environment clear in the State. That apart he adopts the arguments advanced by the learned Counsel for the project proponent and submits that the appeal is liable to be dismissed.

We have heard all the learned Counsel extensively, referred and traversed through all the bulky documents filed by all the side and given our anxious thoughts to the issues involved in this case. Accordingly we arrive at the following issues to be discussed and decided:-

1) Whether the presence of Mr. P. Abraham during the scoping stage of EAC in considering Demwe Lower HEP would vitiate all the consequent proceedings of EAC and the EC?

2) What is the scope of scoping under EIA Notification 2006 and whether any decision taken at the scoping stage cannot be changed and has to be treated final?

3) Whether EAC has considered all the issues relating to

(i) The effect of the project on the cultural heritage of Parshuram Kund?

(ii) Appraisal proceedings done as per the EIA Notification?

(iii) Delinking of the basin study from the EC and its effect?

(iv) Effect of peaking operations of the project?

(v) Effect on Biodiversity including the effect on Dibru-Saikhowa National Park?

(vi) Cumulative impact study? And

(vii) Muck disposal and suggested sufficient safeguards.

4) Whether public consultation process has been done properly and in accordance with the EIA Notification 2006.

5) Whether the EC is liable to be held invalid.

In the background of the above undisputed facts elaborately explained and based on the pleading we propose to approach the issues one by one. Before adverting to the same, we think it appropriate to examine the position of Arunachal Pradesh and its requirements especially regarding the present status pertaining to the environmental issues and incidentally consider its other requirements.

Arunachal Pradesh which is a North Eastern most State in the country is situated in the total area of 83747 square Kms and as stated by the learned Counsel appearing for the said State Government Mr. A.D.N. Rao, out of the total extent, 67321 sq.km of area is covered by forest. Therefore, the state has got the forest cover of 80.1 per cent. It has got 8 major river Basin with the total hydroelectric power potential of the said Basin which has been assessed at 57000 MW apart from the 2000 MW hydropower potential from smaller hydro electric projects. The National potential estimated of hydro electric power is stated to be 1,47,000 MW and if that is taken into consideration the hydroelectric power potential of Arunachal Pradesh is 1/3rd of the National potential. While the countries big power deficit is 9.8 per cent, the deficit in the North East is 18.5 per cent. In spite of the hydroelectric potential of the river Basin situated in Arunachal Pradesh to the extent of 57000 MW the State is able to develop as on date its capacity of 460 MW which is less than 0.79 per cent of the National potential. This statistical points conformed by the Central Electricity Authority shows that in spite of its hydroelectric power potential the State of Arunachal Pradesh is suffering of power deficit. Admittedly there are no industries in the State for augmenting its economic development.

It is stated that even though a significant number M.O.U. have been entered with the Government, as on date if one refers to the status of hydroelectric power projects coming up in Arunachal Pradesh, it would only show an alarming situation. It appears as circulated in the list of projects and stages as on May 2014, as on date there has been only 14 projects in respect of which EC has been granted, nevertheless it is only in respect of one project in Subansiri, Ranganadi HTP with an installed capacity of 450 MW which has been commissioned. The other projects which are not commissioned in spite of EC having been granted by MoEF, other than Demwe Lower 1750 MW of Lohit River Basin for which both EC and FC are granted which is a subject matter of dispute in this appeal and another appeal are:

Kameng Basin, Gongri with the installed capacity of 90 MW.

Kameng Dibbin 125 MW

Kameng Khuitam 66 MW

Kameng Nafra 120 MW

Kameng Kameng 600 MW

Siang, Tato-II 700 MW

Siang, Sian Middle (Siyom) 100 MW

Subansiri, Lower Subansiri 2000 MW

Dikrong, Pare 110 MW

Tawang, Nyamjangchhu 780 MW

Tawang, Tawang stage 1 HEP 600 MW

Tawang, Tawang stage 2 HEP 600 MW which are still pending.

It is in the light of the above said real situation which in our considered view is also concerning the sustainable development,we have to approach the dispute in question.

Before taking up everyone of the issues framed by us individually we propose to take the issue no. 2 as a first one for our consideration. Issue no. 2 which we have framed is as follows:

Issue No. 2: What is is scope of scoping under the EIA Notification 2006 and whether any decision taken at the scoping stage cannot be changed and has to be treated as final?

The Environment Clearance Regulation 2006, herein after referred to EIA Notification 2006 is a statutory notification issued by the Government of India in exercise of its powers conferred under Section 3 (2)(v) of the Environment (Protection) Act 1986 read with Rule 5(3)(d) of the Environment (Protection) Rules 1986. By the said Notification the Government has prescribed the procedure to be followed for construction of new projects or activities or expansion or modernisation of existing projects or activities listed in the Schedule to the Notification entitling capacity addition with change in process and or technology to be undertaken in any part of India and only after obtaining prior Environment Clearance from Central Government or from the State Level Environment Impact Assessment Authority as the case may be.

While the notification makes certain activities as 'A' category for which Central Government in MoEF and certain activities as 'B' category for which the SEIAA in the State Level are made competent to give prior EC as Regulatory Authorities. As the Hydro Electric Power Projects, are categorised as 'A' projects in the Schedule to the Notification while following various stages prior to grant of Environment Clearance, the new projects of Demwe Lower HEP 1750 does not require to undergo the first stage of 'screening' as per clause 7 of the Notification which enumerates 4 stages to be undergone by a project before EC is granted. That takes us to the stage no. 2 called 'scoping' to be undergone by the project in issue. It is common ground that as a first step, the project proponent is expected to make his proposal as an application in Form I prescribed in appendix I of the EIA Notification 2006. "Scoping" refers to the process by which the Expert Appraisal Committee (EAC)determine detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of Environment Impact Assessment (EIA) Report to be prepared by the project proponent in respect of the project or activity for which prior Environment Clearance is sought. The EAC determines Terms of Reference on the basis of information furnished in the prescribed application in Form I, a site visit by a sub group of EAC only if considered necessary by the EAC, Model Terms of Reference if suggested and furnished by applicant and other information's that may be available with the EAC. Therefore, the said word "scoping" forms the first part of the stage no. 2 contemplated in clause 7 (II)(2) of the EIA Notification 2006.

It is no doubt true, as stated in clause 7 (II) (2)(iii) that the application for prior EC may be rejected by the Regulatory Authority, on the recommendation of the EAC at the stage of scoping itself, with reasons for such rejection, which should be communicated within 60 days of receipt of the application. But that does not mean that at the scoping stage the proposal could deemed to be sanctioned based on the contents of Form I after 60days of the application and deemed to be recommended by the EAC for issuance of EC. The EAC can always reappraise and issue additional TOR seek information or clarification till it is satisfied that the entire material particulars have been placed before it for its thorough consideration so as to enable the final TOR to be formulated so that the project proponent can go for Environment Impact Assessment (EIA) study and submit the same again to MoEF which will be referred to EAC once again for its consideration and final recommendation. As submitted by the learned Counsel appearing for the appellant Mr. Ritwick Dutta it is no doubt true that the "scoping" stage is the foundation stage of a project and it is definitely the "soul" and "spirit" of the EIA Notification as held by the High Court of Punjab and Haryana. But we are unable to accept his contention as if any decision taken by the EAC during "scoping" cannot be changed or altered for the better Environmental protection by EAC. The TOR prescribed by the EAC based on the contents of the application in Form I, site visit of the sub group if found necessary and other particulars can always be altered by additional TOR by asking the project proponent to explain doubts if any raised by EAC regarding any material facts found or discovered in Form I or site visit. In the absence of any bar in the EIA Notification 2006 for the EAC to issue additional TOR till it is completely satisfied about the project there EAC is entitled either to call for additional particulars or ask for rectification based on site visit by the sub group. In respect of Hydro Electric Power Plants which are normally site specific in nature, the site visit by the sub group of EAC certainly helps the experts constituting the EAC to modify the proposed TOR of the project proponent or make alternation or addition to the TOR. On the facts of this case itself it is seen clearly that in respect of Demwe Lower HEP 1750 MW in Lohit River basin of Arunachal Pradesh the EAC has considered the proposal along with other projects at least on 3 occasions namely 21st & 22nd October, 2009, 16th November 2009 , 15th and 16th December 2009. In fact as it is seen in the summary of records of discussion of the 31st meeting of the EAC dated 21st and 22nd October, 2009, after the EAC has taken note of the fact that the initial TOR issued for the project in July/August 2007 and subsequent bifurcation of the project into Demwe Lower HEP and Demwe Upper HEP, the meeting considered in greater detail about the situation of the project including that the Dam access is located about 100m upstream of Parshuram Kund Bridge on NH-52 and falls in Lohit District with reservoir extended into Anjaw District of the State. The EAC in the said meeting has also considered that the minimum draw down level of the project will be at elevation of 408 m as finalized by CEA/CWC with live storage of about 171.20 m.cum and that a surface power house is proposed on the right bank of Lohit river to accommodate 5 numbers of vertical Francis turbines of 342 MW each and 1 unit of 40 MW to generate a total installed capacity of 1750 MW. It was taken note of by the Committee that the water after power generation will be discharged back to the river through a 130 m long tail race channel and the project will generate 6322 million units in a 90 per cent dependable year at 95 per cent machine availability. A reference to the minutes also shows that this project after bifurcation was granted TOR on scoping approval on 25th March 2008 for generation of 1200 MW which was subsequently increased to 1750 MW based on study of water availability without changing the physical parameter. The Committee in the said meeting has considered height of the dam at 160 m and therefore it needs to provide dependable warning system to the downstream flood plain upon the event of a dam break. It was found that the rise in water surface elevations in the event of PMF plus dam break would be seen in the downstream reach of 58 km and this entire area lies within geographical boundary of Arunachal Pradesh and concluded that 23 villages in the downstream reaches would be affected. It also considered the clarification issued by the developer that dam break analysis has been carried out using HEC/RAS model for the critical condition when the reservoir is at FRL and design flood hydrograph (PMF) is impinged. Further the Committee has considered the Disaster Management Plan, Glacial Lake Outburst Flood (GLOF) studies and called for clarification on segments uploading and silt disposal system. The Committee also considered the biodiversity and ecological aspect and took note of the primary data with appropriate details and suggested that some more maps like the one shown in for sampling locations of soil could be prepared for terrestrial ecology, water quality. Further it has considered about the nearest boundary of Kamlang Wildlife Sanctuary (KWLS) which is about 9.3 km upstream aerial distance from the dam site apart from the minimum flow and fisheries aspect. In fact in this regard the report shows that the Committee desired that for the environmental release of 35 cumecs, adequate depth and velocity for the dominant channel in the downstream reaches be provided as several braided streams from the Lohit river downstream of the dam site. Regarding the seismic activities the Committee desired the details of investigation on geological aspects carried out and submitted.

Further the Committee in the meeting has in detail considered about the representation on the impact of Parasuram Kund. It considered the provisions made for developing basic infrastructure for bathing ghats, sewage/ sanitation facilities, marketing complex, shelter, recreation area (Parks, sitting space etc) and found that on completion of the project huge water body would be created that will have its own scenic beauty and therefore it would add to the development of Parasuram Kund site into a tourism destination. It was considering the same, the Committee has recommended the increase of financial allocation for Parasuram Kund from 2 Crores to 10 Crores. In that meeting after critically examining all environmental aspects considering the discussion and clarifications given by the project proponent on various environmental concerns especially dam safety and downstream impact, minimum flow, protection measures for Parasuram Kund, geological and seismicity, sedimentation and silt flushing etc along with public hearing, the Committee has directed the project proponent to give additional informations regarding various aspects namely:

• Maps depicting locations of sampling sites for terrestrial ecology and water quality.

• Methodology adopted for Ecological studies be elaborated for clear understanding.

• The Ecological species mentioned in the EIA/EMP report should be cross checked with the Literature by Dr. Haridasan (SFRI), and incorporated in the EIA/EMP report.

• Additional information of river cross sections of the D/S reaches considered for dam-break analysis along with Tail water rating curve and flow velocity of various reaches in the event of dam break analysis.

• Details of braided river course of the downstream reach in which fish migration would take place during the release of environmental flow.

• The 5 micro stations installed for seismic monitoring, should be increased to at least 7 no in consultation with NSIT, Jorhat.

• Salient findings of geological assessment carried out in the project area as a part of EIA.

• Alternate arrangements along with hatcheries, if feasible may be explored for the migratory fishes.

• The financial allocation for the protection of the Parasuram Kund needs to be enhanced from Rs. 2 crores to about Rs. 10 crores.

• Regarding the flow requirements at the Parasuram Kund during Mela period in the month of January, letter to be obtained for the duration as determined by the Parasuram Kund Improvement Society.

• Confirmation from State Pollution Control Board in respect of para 6.6, Appendix IV of EIA Notification 2006.

In a subsequent meeting of the EAC held on 16th November, 2009, the Committee has considered the additional remarks required earlier which runs to nearly 8 pages relating to methodology adopted for ecological studies and maps depicting the locations, cross checking of species with Dr. Haridansan's Report, additional informations of river cross sections in the downstream reaches for dam analysis, details of braided river course of downstream reaches for identifying fish migration path, installation of adequate number of microstations for seismic monitoring, salient features of geological assessment, alternate arrangement of migratory fishers, enhancement of financial location for the protection of the Parasuram Kund, requirement of adequate water flow at Parasuram Kund during Mela period in the month of January, changed flow pattern in downstream of dam due to the reservoir operations, impact of Demwe Lower HEP on Dibru Saikhowa National Park, impact of dams in Brahmaputra on the habitations of the Gangetic Dolphin, impact of Demwe Lower HEP on Beels and Chapories, impact of Demwe Lower HEP on sediment trapping, GLOF studies, flood moderation, river bed erosion due to reservoir operations, impact of tail water release on the Parasuram Kund, impact of bolder collection from river bed for construction, compliance of Akwe: Kon guidelines under the convention of biodiversity and failure of Coffer Dam.

It was in that meeting on 16th November, 2009 the Committee has considered various representations by public/civil societies and NGO's Mr. Ahmed Ramyak, Mr. Neeraj Vagholikar of Kalpavriksha, NEADS Jorhat, group of citizens and civil society, Assam and also representations from Mr. K. Krom Ex-Minister Arunachal Pradesh, Dr. Chandan Kumar Sharma Associate Prof. Department of Sociology, Tezpur University Assam and Bimal Goi, Assam.

After examining the environmental aspects and considering the comprehensive clarifications and responses submitted by the project proponent in respect of various observations and the representations submitted by the members of various Civil Society/Individuals/ NGOs, while reiterating its recommendation for EC, the Committee has called for additional information regarding written response in respect of the representation made by Mr. Krom, Mr. Gogoi and Dr. Sharma apart from report by fisheries Expert of technical evaluation regarding possible breeding grounds including Parasuram Kund.

The meeting of the EAC dated 21 and 22 October, 2009 was charied by Dr. Devendra Pandey along with the Vice Chairman Dr. A.K. Bhattacharya and Members Dr. O.P. Sisodiya, Dr. B.P Das, Shri R.K Singh, Prof D. Goswamy, Dr. J.K Sharma, Prof. D.K. Paul, Dr. D.K. Alva and Dr. S. Bhowmik being its Member Secretary. Likewise in the meeting held on 16th November, 2009 it was chaired by Dr. Devendra Pandey along with Vice Chairman Dr. A.K Bhattacharya and Members Dr. O.P Sisodiya, Dr. B.P Das, Prof. D Goswami, Dr. J.K Sharma, Dr. S.R Yousuf, Shri R.K Singh, Dr. S. Bhowmik as a Member Secretary apart from Dr. P.V Subba Rao from MoEF.

In the 3rd meeting of EAC conducted on 15th & 16th of December, 2009 which was in fact the 33rd meeting of the EAC again while considering the Demwe Lower HEP 1750 in Lohit District of Arunachal Pradesh the Committee took note of the submission of fisheries expert regarding fish breeding grounds in and around Parasuram Kund apart from the response for the representations of the above said 3 persons. The Committee has taken note of various representations and the impact study on the downstream made upto 10 kms and there has been representations that the impact was likely to be beyond 10 kms downstream and directed that the study beyond 10 km should be produced for a separate TOR and thus the meeting was adjourned to 19th and 20th January, 2010. It was in that meeting also Dr. Devendra Pandey was sitting as a Chairman apart from Dr. A.K Bhattacharya as Vice Chairman, Dr. O.P Sisodiya, Dr. B.P das, Dr. D.K Paul, Dr. D.K Alva, Shri R.K Singh, Dr. S. Bhowmick as Member Secretary apart from Dr. B.V Subarao from MoEF.

Therefore, in all the above said 3 meetings of EAC additional TOR's have been prepared and issued and recommended by the EAC based on various clarifications submitted by the project proponent and after considering the entire gamut of environmental issues by all the Members thoroughly. All the 3 meetings have taken place during the scoping study. This clearly shows that scoping is not only an initial process but it is a continuing process and EAC is entitled to recommend additional TOR till all requisite information is available for appraisal of the project. A close study of the entire minutes of EAC as elicited above shows the healthy trend and implementation of the spirit of the EIA Notification 2006 by EAC during the process of scoping. Therefore it is clear that the scoping which is an initial process and decision taken during scoping process continues till final TOR is recommended by EAC and certainly during that period the EAC is entitled to make changes, alterations and additions and therefore till final TOR is issued one cannot say that decision taken in the EAC meeting during scoping are final. The second issue raised by us is answered accordingly.

Issue No. 1: Whether the presence of Mr. P. Abraham during the scoping stage of EAC in considering Demwe Lower HEP, vitiate all consequent proceedings of EAC and the EC?

The EAC at the level of Central Government is as contemplated in clause 5 of the EIA Notification 2006 and its composition is as given in Appendix no. VI. As per Appendix No. VI it is made clear that the EAC shall consist of only professionals and experts fulfilling the various criteria contemplated therein. The Appendix also states that the members of EAC shall be experts with requisite experience in various fields or disciplines like environment quality, Sectoral Project Management, Environment Impact Assessment process, Risk Assessment, Life science, Forestry and Wildlife, Environmental Economics with experience in project appraisal, public administration or management, and the number of Members of EAC shall not exceed 15, however, with liberty to the Chairperson to co-opt an expert as a member in a relevant field for a particular meeting of the Committee. The maximum tenure of a Member including Chairperson is 2 terms of 3 years each.

It is also relevant to point out at this stage that Clause 5 of the EIA Notification 2006 while speaking about the screening , scoping and appraisal committees states in clause 5 (e) as follows:

"EAC and SEAC's shall function on the principle of collective responsibility. The Chairperson shall endeavour to reach a consensus in each case, and if consensus cannot be reached, the view of the majority shall prevail".

It is the contention of Mr. Ritwick Dutta, that as the Chairperson is entitled to take efforts to reach a consensus, his position is more influential. This he has raised in the context of Mr. P. Abraham who was appointed as the Chairperson of the EAC which has considered Demwe Lower HEP 1750 MW project. His contention is that Mr. P. Abraham was already a non executive director of PTC India Ltd which is stated to have promoted the 3rd respondent project proponent herein and therefore his presence as a Chairperson in the EAC to consider the project concerned is capable of influencing in decision making process and therefore there a likelihood of bias. It is for that purpose he has relied upon the above said clause 5 (e) of the EIA Notification 2006. The above said contention in our view is baseless. As per the notification any decision is based on collective responsibility. As per Appendix VI all the members including Chairperson are well qualified experts and one cannot accept the contention that such experts would yield to the Chairperson if any illegal or unsustainable proposals are insisted on them. The said provision should be only construed to mean that in normal circumstances the collective responsibility with the consensus of all Members shall be taken in which event, the Chairperson responsibility is to endeavour to reach consensus which cannot mean that his influence should be binding on all members. Each of the expert members who are well qualified as prescribed under the notification are entitled to take their views in which case majority will prevail. Therefore, there cannot be any presumption that the Chairperson will influence the other expert members. Such view will be only undermining the independent status of the members of the EAC.

Now coming to the fact of the present case, it is not in dispute that the Government of India while reconstituting EAC for river valley and hydro electric projects has nominated Mr. P. Abraham as it is Chairman on 03.04.2007 and he has resigned from the post on 22.06.2009 and thereafter it was Dr. Devendra Pandey who became the Chairman. It is true that originally the project proponent has given proposal for Demwe HEP (3000 MW) and that was submitted on 10.07.2007 by the Government for consideration by EAC. On that day it is no doubt true that Mr. P. Abraham was the Chairperson of EAC and TOR was also granted. But the fact remains that during reconnaissance survey of the allotted stretch of Lohit River and additional data collection the 3000 MW Demwe HEP was found by Central Electricity Authority (CEA) with FRL at 490m causing partial submergence of Kamlang Wildlife Sanctuary (KWLS) and to avoid the same the earlier project was decided to be developed in 2 stages Demwe Lower Project and Demwe Upper Project within the allotted stretch given by the Government of Arunachal Pradesh. The project proponent has submitted a revised Form I afresh on 01.02.2008 seeking EC for Demwe Lower HEP 1750 MW. Therefore, upto the period on 1st February 2008 from the date of original application namely July 2007, there could not be any dispute by Mr. P. Abraham sitting as Chairman of EAC, as the decision for bifurcation was taken due to reconnaissance. After 01.02.2008 Mr. P. Abraham remained as Chairperson till his resignation on 22.06.2009.

After the revised application in Form I was filed by the project proponent on 01.02.2008 the scoping approval was granted for Demwe Lower HeP 1200 MW on 25.03.2008 and it was subsequently raised to 1750 MW based on study on water availability without changing physical parameter. On record it is clear that either when Demwe Lower HEP 1200 MW was granted TOR on 25.03.2008 or subsequently when it was increased to 1750 MW, such decision was arrived at collectively by all members of EAC and no one of the members have ever given any descenting opinion. In such view of the matter we are unable to appreciate the contention that the above (TOR) was issued by EAC because of the influence of Mr. P. Abraham.

Be that as it may, as it is seen on the record of the proceedings of EAC, the effective consideration of Demwe Lower HEP 1750 MW for scoping process was started for the first time on 21 st and 22nd October 2009 as stated above. This was subsequently continued on 15th and 16th December, 2009. It was in these 3 meetings of EAC, a clear cut and catagoric decision on discussion regarding the project in question was taken. When Mr. P. Abraham has resigned much before the said date namely on 22.06.2009 as the Chairman, we are at last to understand as to how Mr. P. Abraham would have influenced the members of EAC. During the above said 3 meetings, Mr. P. Abraham was neither directly nor indirectly involved in EAC and it was Dr. Devender Pandey who was nominated as the Chairman and continued in these 3 meetings. In the light of the thorough study made by all EAC members in these 3 meetings as enumerated by us while discussing issue no.2, the contention of the learned Counsel for the appellant in this regard has to be totally rejected on the simple ground that there is no scope for bias at all. The next question which may be relevant to some extent may be relating to the principle that one cannot sit on judgment over his case. As a non- executive director of PTC India Ltd. which was to supply certain materials to the project proponent in this case, it is not understood as to how Mr. P. Abraham can be said to sit in judgment over his case. Admittedly he is not connected with Demwe Lower HEP 1750 MW project and it is not even the case of the appellant that Mr. P. Abraham has any monitory or other interest over the project. In the absence of any materials on record to show that Mr. P. Abraham has any interest over the project and he has influenced the other expert members, which in our view cannot be even remotely possible, since all experts are eminent persons in their field, there is no doubt in our mind that the presence of Mr. P. Abraham in EAC as the Chairman would vitiate all proceedings of the EAC.

At the cost of repetition, we are to say that in the above said 3 critical meetings of the EAC in which the project in question was elaborately discussed by EAC, and recommended for EC, Mr. P. Abraham was not the Chairman or Member of EAC and therefore, the question of bias or a person cannot sit as a Judge of his own case does not arise. In any event as stated above that was the most preliminary scoping stage which was liable for alteration, addition and modification by EAC based on not only the contents of Form 1, site visit and other materials including the presentation by the project proponent. In fact, in this case as stated above, based on subsequent meetings of EAC additional TOR has been issued and therefore, if there was any mistake committed, which is not even the case of the appellant, there was lot of scope for EAC in the subsequent meetings to rectify. It is further relevant to note that EAC has sent its sub-group for site visit on 21.02.2008 and in the site visit sub-committee of EAC Mr. P. Abraham was not a party. Mr. P. Abraham in his reply has also stated that he has no personal interest over the project concerned and in fact he has been working in the hydro-electric power project for nearly 30 years. As contended by the learned Counsel appearing for the appellant there is absolutely nothing on record to show that Mr. P. Abraham was made to resign at the instance of the then Hon'ble Minister of Environment and Forests especially when it is the case of Mr. P. Abraham that he voluntarily quit the post. 77. Further, even after the detailed EAC study, which was only a recommendary body, it is ultimately the MoEF which is to issue the EC which has in fact issued the EC on independent application of mind and there is absolutely no scope to hold that views of Mr. P. Abraham even if it is intentionally favourable to the project in question would influenced the Government of India, when it is the case of the learned Counsel appearing for the appellant himself that the Hon'ble Minister himself wanted Mr. P. Abraham to go out of EAC, which averment in fact is not supported by any acceptable evidence. But then, in fact the same Hon'ble Minister of Environment and Forest later approved the project for grant of EC for the same.

Even otherwise, this Tribunal which is consisting of expert members who have gone through the entire case relating to the various proceedings of the EAC and granting of EC and applied their technical mind and concluded that there is no flaw either in the project or in the proceedings of the EAC or EC.

For all the above said reasons, we answer issue no, 1 against the appellant and hold that the presence of Mr. P. Abraham has no tendency of vitiating the EAC proceedings and consequently EC issued by the MoEF.

Issue No. 3

3) Whether EAC has considered all the issues relating to

(i) The effect of the project on the cultural heritage of Parshuram Kund?

(ii) Appraisal proceedings done as per the EIA Notification?

(iii) Delinking of the basin study from the EC and its effect?

(iv) Effect of peaking operations of the project?

(v) Effect on Biodiversity including the effect on Dibru-Saikhowa National Park?

(vi) Cumulative impact study? And

(vii) Muck disposal and suggested sufficient safeguards.

The next important issue that arises for our consideration is as to whether the EAC has considered the underlined 7 points in detail and applied its mind and that application of mind is technically feasible. This is relevant because if this Tribunal is satisfied that that EAC being a statutory authority has applied its mind which also consists of Expert Members, the Tribunal performing Judicial function can always take a complete decision by itself.

The first and foremost point in this regard relates to the affect of the project on the cultural heritage of Parasuram Kund. This point can be clubbed with the 7th point in the said category namely "muck disposal whether suggested sufficient safeguards.

While speaking about the history of the mountainous and multitribal north-east frontier region called Arunachal Pradesh and its tradition and mythology and while observing that it has a long international border with Bhutan, China and Burma now called Myanmar and also observing that the Tribals of North Eastern States are historically protected, the Hon'ble Apex Court in State of Arunachal Pradesh Vs Khudiram Chakma reported in 1994 supp. (1SCC) 615, referring to Parasuram Kund observed as follows:

"41. The history of the mountainous and multitribal north-east frontier region which is now known as Arunachal Pradesh ascends for hundreds of years into the mists of tradition and mythology. According to Puranic legend, Rukmini, the daughter of King Bhishmak, was carried away on the eve of her marriage by Lord Krishna himself. The ruins of the fort at Bhalukpung are claimed by the Akas as original home of their ancestor Bhaluka, the grandson of Bana Raja, who was defeated by Lord Krishna at Tezpur (Assamuy). A Kalita King, Ramachandra, driven from his Kingdom in the plains of Assam, fled to the Dafla (now Nishang) foothills and established there his capital of Mayapore, which is identified with the ruins on the Ita hill. A place of great sanctity in the beautiful lower reaches of the Lohit River, the Brahmakund, where Parasuram opened a passage through the hills with a single blow of his mighty axe, still attracts the Hindu pilgrims from all over the country".

Mr. Ritwick Dutta contends that in as much as Parasuram Kund has got an aesthetic value on the religious point of view, while approving any project which is likely to affect its sanctity should be carefully considered while deciding about the effects of such project on the said Kund. According to him this has not been considered as per the requirement. It is not in dispute that during the auspicious days of Makar Sakranti, for a period of 10 days before and after, Hindu devotees visit the Parasuram temple situated nearly 100 ms away from Parasuram Kund and large number of people take sacred bath in Parasuram Kund before climbing up to Parasuram temple and the Hanuman Temple situated adjacent to that. Therefore it is clear that Parasuram Kund is a place in the running water where devotees take their sacred bath before reaching the temple. Admittedly it is not the temple which is affected by the project but even according to the appellant it is the running water called Parasuram Kund which may be affected either by the unregulated flow of water due to the project or by accumulation of muck either during the time when the project construction is on or subsequently. On the other hand it is the contention of the learned Counsel for the project proponent which is also not in the much dispute that Parasuram Kund is located 100 ms along the river from dam site of Demwe Lower HE Project and the temple is located on the Hill on the left Bank river about 100m high from river bed. On a reference to the 31st meeting of the EAC held on 21st and 22nd October, 2009 it is clear that the EAC has taken note of the objection raised to the above said effect and it was ensured from the developer that continuous flow of water will be maintained downstream through a separate diversion channel of 6m dia and during the operation period, continuous water will be released downstream through a separate 40 MW installed unit which shall run 24 hours continuously to release 35 cumecs of water downstream to maintain the needs at Parasuram Kund. It is also informed that during the time of bridge construction by which traffic is regulated heavy machinery was used apart from huge blasting operations and that had no impact on the Kund. It was also informed that regarding the impact of flow variations from 35 cumecs to 1729 cumecs especially during the month of January when the normal flow is stated to be around 400 cumecs, a flow regulation with the project would take place and during the said month of January when Parasuram Kund Mela takes place, 1 unit of 342 MW will be operated as determined.

It is stated by the project proponent that regarding the tourism at Parasuram Kund even though as on date there is no major infrastructure, provisions are being made for developing infrastructure, sewage/ sanitations facilities, marketing complex, shelter, recreation areas with a provision of Rs. 2 Crores. It is seen in the minutes of the said meeting that the amount of Rs. 2 Crores would be enhanced to 10 Crores which was agreed by the developer which amount is directed to be used to ensure that no adverse impact takes place during the construction and operation stage. It was also directed by the EAC that during Mela period the release of water must be regulated. Regarding the sedimentation and silt flushing which includes the muck formation, it was informed that regarding the periodic reservoirs flushing, CEA/CWC has set certain guidelines and that the reservoir operation and all necessary precautions shall be taken and the reservoir be maintained at the MDDL during the period of monsoon. This was again considered by the EAC in its meeting held on 16.11.2009. It was confirmed that a warning system to be installed at Parasuram Kund, that there shall be no damage to the water body; Hill-Flora-Fauna, that there shall be no encroachment in the entire temple area, that efforts to beautify and develop the area should be taken up and that the availability of water to the devotees should not be hampered. The EAC has also taken note of the commitment made by the project proponent to implement the conformation of the SPCB. Therefore, it is clear that sufficient safeguard has been taken for preserving Parasuram Kund and its water flow that has been duly considered by the EAC on its application of mind.

In the impugned EC also the MoEF while imposing specific conditions has clearly specified in Clause 17 and 18 as follows:

"(xvii) The project will release normal lean season flow for a period of 7 days during mela (Sankranti) period in Parsuram Kund, in the month of January as per the condition stipulated by the Parashuram Kund Improvement Society.

(xviii) The financial allocation for the protection of the Parasuram Kund should be enhanced from Rs. 2 crores to about Rs. 10 crores as suggested by the EAC. The said amount would be utilized for creating appropriate amenities infrastructure, structures and safeguards etc. as decided by Parasuram Kund Improvement Society who are looking after the developmental activities related to the Parasuram Kund".

In such view of the matter we are of the considered view that the said two aspects of preserving Parasuram Kund and proper muck disposal have not only been considered but answered properly and therefore we are of the view that the effect of Demwe Lower HEP 1750 MW does not effect the cultural heritage of Parasuram Kund and sufficient safeguards has been taken up for an effective muck disposal.

Regarding the point as to whether the appraisal proceedings have been done as per EIA Notification 2006, as it is seen in Cluase7 stage IV, the EAC has not only taken note of the undertaking given by the project proponent but also studied the outcome of public consultation and in fact as stated earlier, at least in three meetings, the EAC has considered not only the contents of the proposal in Form 1 but also all other aspects which are required as per EIA Notification 2006, and Appendix V which prescribes the procedure for appraisal and ultimately recommended the issuance of EC to the project proponent. There is absolutely no procedural flaw in the appraisal proceedings and therefore one cannot come to a conclusion that appraisal regarding Demwe Lower HEP is not in accordance with the EIA Notification 2006.

As far as the decision regarding delinking of basin study from EC and its effects, it is the contention of the learned Counsel appearing for the appellant that the condition in the impugned EC which states in Clause no. 16 as follows:

"(xvi) The project since falls in Lohit Basin and at present the Basin Studies is ongoing and it was stipulated during the grant of TOR for scoping that the Environmental Clearance for Demwe Lower HEP should not be linked with the completion of basin studies. However, any recommendations that emerge out from the basin studies shall be a binding on the project developer in future", makes it clear that as the Lohit Basin Study is ongoing, the same need not be linked with the issuance of EC. It is his contention that the said condition is abnormal specially when it also states that any recommendations that emerge out from the basin study after completion will bind the project developer in future has no meaning because by that time the project would have come into effect.

According to him it is putting the cart before the horse".

On the other hand it is the case of the project proponent as well as the MoEF that the delinking of Lohit basin study from the projects have been done in similar cases like Kalai-II HEP for TOR, Hutong II HEP 1250 MW in Anjaw district, Anjaw HEP 280 MW, Raigam HEP 96 MW on Dalai river in Anjaw district and Gimliang HEP 99 MW on Dav river in Anjaw district. It is also their case that delinking process for grant of environmental clearance to the projects from completion of the river basin study is a well practised procedure and the same has been followed by EAC on earlier occasion in respect of EC granted for Gongri HEP 90 MW, Nafra HEP 96 MW, Divvin HEP 125 MW which were granted in the year 2010 and 2011 and that the basin study which was allotted in 2008 was completed in July 2011. Likewise EC was granted in respect of Teesta Stage VI HEP 500 MW, Teesta Stage III HEP 1200 MW, Roler HEP 36 MW, Jorethang, Loop HEP 96 MW in the year 2004 to 2007 while the basin study was completed in the year November, 2007. It is also stated that in respect of TATO and HEP 700 MW, EC was granted on 27.06.2011 while the Siang basin study which was allotted on 23.12.2010 is still in progress. Likewise it is pointed out that EC was granted on 19th May, 2011 regarding Sangtong, Karchham HEP 402 MW while its Sutlej basin study was allotted on 26.02.2011 which is still pending. It is also pointed out that EC in respect of Selisep 400 MW was granted on 02.06.2012 while the Chenab Basin Study was directed to be continued. In addition to that many other instances have also been pointed out wherein while river basin study are going on, they were delinked from EC proceeding.

The report of inter ministerial group prepared by the Government of India 2010 to evolve a suitable framework to guide and accelerate the development of hydro power in North Eastern Region has categorically decided that studies in the Basin should be taken up by CWC but that will not hold up the EC of individual projects. In as much as it is not in dispute that in respect of many other projects it has been the practice that regarding the hydro electric power projects, the pendency of river basin study cannot be an impediment for granting EC we cannot presume that the EC proceedings will be vitiated by the delinking process. In fact sufficient safeguard has been provided in the EC specifically stating that any result of river basin study should be binding upon the project proponent.

In respect of the effect of peaking operation, a reference to the data analysis taken for 19 years regarding the flow in Lohit river shows that the said river is well acquainted with flow variability ranging from 200 cumecs to more than 12000 cumecs. It is also seen that more than 54 per cent times the flow in Lohit River at Dam site is more than 1000 cumecs out of which about 33.23 per cent time flow is about 1729 cumecs which is the designed discharge of Demwe Lower HEP. It is also seen that even during non monsoon months of December, January and February the river rejoin experience large discharge varying in the range from ranging from minimum of 1010 cumecs to 1373 cumecs and during monsoon season, the same will be operated at MDDL by keeping the natural flow regime since no storage is allowed. During lean season the flow at dam site will vary between environmental flow release and design discharge from power generations. It is stated that to minimise the impacts of downstream ecologically, detail assessment of environmental flow release is carried out by M/s WEAPCOS as part of Lohit Basin study and the same has been considered by the Expert Appraisal Committee as also the MoEF. In such circumstances we have to necessarily come to a conclusion that the effect of peaking operations of the projects has been thoroughly considered by the EAC. Regarding study of effect on biodiversity including Dibro-Saikhowa National Park, it is clear from the records that as the Government of India has been implementing the National Wetlands Conservation Programmes (NWCP), and as per the guidelines for conservation and management of wetlands in India prepared in June 26, 2009 the Government has identified nearly 15 wetlands and there are no wetlands from the State of Arunachal Pradesh, except 3 namely Depar Beel, Urpad Beel and Sone Beel which are located about 501 km, 557 km and 529 km respectively from Demwe Lower Project. It is also clear that chapories of Lohit River have not been identified as wetlands of national importance. The chapories of Lohit river stated by the appellants relying upon BMHS publication is stated to be located about 33 km away downstream from the project site. The chapories are the elevated regions provide retreat and shelter for animals during flood. A study made by a three Member Committee constituted by the National Environment Appellate Authority covering 60 kms of river stretch from the dam site of Demwe Lower HEP in Assam/ Arunachal Pradesh Boarder, found that no endangered bird species including Bengal Floricam were recorded by the Committee.

To study the variation between design discharge of 1729 m 3/s and average river discharge of 400 m 3/s, four representative cross sections at the identified chapories were taken and variation in water level was assessed by the Committee which shows that maximum water elevation in all 4 locations remain well below the lowest elevation of representative chapories. The project being run of the river scheme is not likely to retain the inflow and sediment/silt/boulders/nutrients etc and during monsoon, river flow would be released normally and it was found during the field visit that none of the Avian/ fauna / species were encountered and their presence in area was also negated by the local communities. Regarding the river dolphins it was found as seen in the GOAP Committee that dolphin were recorded only in Brahmaputra main stream. However, during low water period, the upstream limit of dolphin distribution in the river Lohit is Tengapanimukh which is stated to be located about 72 km downstream along the river from Demwe Lower HEP. Therefore it was found that the likelihood of the presence of dolphins in the upstream of Tengapanimukh during dry season is negligible. It is found to be not an ideal condition for habitat of dolphins owing to limitations of low depth. There has been interaction with local communities including fisherman by the committee who conformed the non availability of dolphins in the downstream dam. Regarding the globally threatened avian species stated to have been situated in chapories like Bengal Florican, Swam Francolin, Lesser Adjutant, white beak Duck, Jerdom's Babbler, Indian Skimmer and Black- breasted Parrot Bill, the same are not regularly found and the impact of the project was found to be negative. Therefore the EAC has considered the downstream impacts including those on the habitat of Bengal Florican and MoEF is stated to be taking steps for conservation and preservation of the said species in the entire country.

Relating to the downstream flow characteristics, the studies show various data's taken of 95% dependable year to consider the worst case. Catchment area proportion method was used for working out contribution of each tributary on 10 daily basis in the downstream stretches.

Regarding the impact on Dibru-Saikhowa National Park (DSNP), it is seen from the minutes of EAC that it was at its direction and as part of Lohit Basin studies the flow variations at Dibru-Saikhowa was undertaken by M/s WAPCOS which has filed its report to MoEF and it was stated that the National Park is situated about 105 km downstream of the project. It is also stated in the report that the flow in lean season at Dibru-Saikhowa National Park in Lohit River varies between 400-700 cumec while the maximum discharge of peaking of Demwe Lower would be at 500 cumec at National Park which is well within the range of natural flow. The report thus concluded that there is no other effect on non monsoon peaking operation, as the submergence level at all times remain below the lowest elevation of the park. All these facts have been thoroughly considered by the EAC as it is seen in the minutes of its three meetings.

The last point under the above topic is as to whether the EAC has considered the cumulative impact study. The meeting of EAC dated 21st, 22nd October, 2009 has taken note of the entire cumulative aspect ranging from vast and various states of divergent subjects including the minimum flow and fishery aspects. As the area is highly seismic zone the geological and seismological studies were carried out at DPR studies apart from the social aspects and R&R plans including the preservation of religious sanctity of Parasuram Kund was duly considered and cumulative study in the form of River Basin Studies which are going on, the Tribunal see absolutely no reason to hold otherwise. The minutes of the meeting of the EAC held on the said three occasions are the standing testimony to show that there has been total application of mind. Therefore, the issues raised in point no. 3 are all answered in favour of the project proponent.

Issue No. 4

Whether public consultation process has been done properly and in accordance with the EIA Notification 2006.

The EIA Notification 2006 in Clause 7 stage number 3 explains the public consultation and it is stated to be a process by which the concerns of local affected persons and others, who have plausible stake in the environmental impacts of the project are taken into account. As per the EIA Notification 2006, the public consultation has two components:

1) A public hearing at the site or in its close proximity as per the manner prescribed in Appendix IV for ascertaining concerns of local affected persons and

2) Obtain responses in writing from other concern persons having plausible stake in the environmental aspects of the projects.

The public hearing is conducted by the SPCB in a specified manner and forward to the regulatory authority namely MoEF. There is a clause which provides that in cases it is reported to the Regulatory Authority that it is not possible to conduct public hearing in which even the Regulatory Authority may decide that the public consultation in a particular case need not include public hearing. However, this later aspect does not arise in this case as admittedly public hearing has taken place in two places. After the completion of public consultation it is the duty of the project proponent to address all the material environmental concerns expressed during the said process and effect appropriate changes in EIA report and submit the same to the appropriate authority.

Appendix IV while contemplating the procedure for public hearing to be conducted by the SPCB states about the notice of public hearing stating that the same shall be advertised in one National Daily and one Regional Vernacular Daily/ Official State language giving 30 days minimum time to the public to furnish their response. It also further states that the proceedings of public hearing should be at the supervision of the District Magistrate/District collector/Deputy Commissioner or his representative not below the rank of an Additional District Magistrate assisted by a representative of SPCB who shall arrange videography of the entire proceedings and forward the same to the Regulatory Authority. A time limit has also been prescribed under the said appendix for conducting public consultation.

On the facts of the present case it is not in dispute that the following are details of notification published in the newspaper:

S.No

Name of the Newspaper

Date and Language Publication

Remarks

English

Hindi

Local (Mishmi)

1

Arunachal Times

10th July 09

11th July 09

10th July 09

Local Daily

2

Arunachal Front

11th July 09

11th July 09

11th July 09

Local Daily

3

Echo of Arunachal

11th July 09

11th July 09

11th July 09

Local Daily

4

Times of India

10th July 09

11th July 09

-

National Daily

5

Purvanchal Prahari

-

11th July 09

-

Regional Daily

6

Eastern Mail

12th July 09

12th July 09

12th July 09

Published Weekly on Sundays

Therefore it is clear that the publication of the notice about the public hearing is more than what it is required under the notification. It is also not in dispute that such public hearing took place at Parasuram Kund Lohit District and Paya, Anjaw District on 11.08.2009 and 12.08.2009 and about 519 and 237 people respectively have participated. During the public hearing detailed written representations have been received, 19 persons from Parasuram Kund on 11.08.2009 and 7 persons at Paya on 12.08.2009. It is also stated that people from downstream villages beyond the project area namely 10 km radius of the project attended public hearing. The said places are stated to be Chongkham which is 53 kms, Alubari which is 60 kms, Naupati which is 70 kms, Kathan which is 90 kms, Teesu which is 35 kms and Namsai which is 81 kms.

It is also stated that a copy of EIA report, EMP report and executive summary of the project were uploaded on the website of SPCB and MoEF and therefore there is wide publicity to enable plausible stake holders to effectively participate and in fact there has been such participation. In such circumstances we have no hesitation to hold that the public consultation process has been done on facts of the present case in accordance with the EIA Notification 2006. The said issue is answered accordingly.

Issue No. 5

Whether the EC is liable to be held invalid.

As stated in detail, we have no doubt in our mind that there is no suppression of any material fact by the project proponent either in Form 1 proposal stage or subsequently, that the public consultation process has been done in accordance with the provisions of the EIA Notification 2006 and that the EAC which consists Experts from various fields and who have independent status and merit have considered in complete details on three of its meetings and in fact called for more information and additional particulars from the project proponent to satisfy itself as to whether the recommendation of EAC is to be granted or not and therefore there is a proper application of mind by the EAC. A reading of the terms of EC impugned in this proceedings, issued by the MoEF also shows that it is not as a matter of routine the impugned EC has been granted but each one of the recommendations of the EAC has been taken note of which is reflected from the special conditions enumerated by the MoEF in the impugned EC. Further there was no participation of Mr. P. Abraham during the most crucial stage of consideration of environmental appraisal of the proposal of the project proponent by the EAC on three of its crucial meetings held on 21st and 22nd October, 2009, 16th November, 2009 and 15th and 16th December, 2009 and during the above said meetings Mr. Abraham was not the chairman or Member of the EAC. Scoping being the most initial stage, in respect of hydro electric project which are site specific in nature except citing the area for the project no much activities are done. Moreover, at the time of scoping, as stated earlier the EAC has desired to make a field visit to find out the suitability of the place during which time of course Mr. P. Abraham was the Chairman but still the sub-committee constituted by EAC to visit his part and submit its report does not include the said Mr. P. Abraham. Therefore, the question of tendency to influence or bias does not arise for consideration on the facts and circumstances of the present case. The two contentions mainly raised by the learned Counsel appearing for the appellants namely in the scoping stage a foundation has been laid for the project which cannot be altered subsequently and that public consultation was not done properly are not acceptable at all. When it is clear on fact that even during scoping stage there has been an alteration of the project which was originally proposed as Demwe Lower HEP 3000 MW for which in fact TOR was issued by EAC and that has been subsequently changed by dividing it into two parts when it was found that there was a possibility of submergence of a national park which were on environmental concern. Moreover, the additional TOR are being issued for the projects based on subsequent information and clarification which are factually seen in this case and therefore it cannot be accepted that any decision taken in scoping stage either cannot be altered or changed by a change in circumstance. In so far as it relates to the public consultation on a reference to record it is clear that large number of people have participated and the public hearing was conducted on the spot of the project and the appellants who are stated to be living in the downstream in Assam have been allowed to participate and in such circumstances it is certainly not open to the appellants to say that the public consultation was not properly done. Therefore there is no iota of hesitation in our mind to hold that the EC granted consequent to such a long drawn process cannot be vitiated by the averments made by the appellants which are not correct on the factual matrix.

There is one more aspect as raised by the learned Counsel appearing for MoEF which is of utmost relevance to be considered. The EIA Notification 2006 in Clause no. 7 (IV) while speaking about stage 4 appraisal in sub-clause (i) states as follows.

"IV. Stage (4)-(i) Appraisal means the detail scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority concerned for grant of environmental clearance. This appraisal shall be made by Expert Appraisal Committee or State Level Expert Appraisal Committee concerned in a transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorized representative. On conclusion of this proceeding, the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance on stipulated terms and conditions, or rejection of the application for prior environmental clearance, together with reasons for the same".

(Emphasis Supplied)

The EIA Notification 2006 in the above said clause also states that the prescribed procedure for appraisal is given in Appendix V. The said Appendix V is reproduced as follows for a better appreciation of the contention raised by the learned Counsel appearing for MoEF:

"APPENDIX V

Procedure Prescribed for Appraisal

The applicant shall apply to the concerned regulatory authority through a simple communication enclosing the following documents where public consultations are mandatory:-

• A copy of the video tape or CD of the public hearing proceedings

• A copy of final layout plan (20 copies)

• A copy of the project feasibility report (1 copy)

The Final EIA Report and the other relevant documents submitted by the applicant shall be scrutinized in office within 30 days from the date of its receipt by the concerned Regulatory Authority strictly with reference to the TOR and the inadequacies noted shall be communicated electronically or otherwise in a single set to the Members of the EAC/SEAC enclosing a copy each of the Final EIA Report including the public hearing proceedings and other public responses received along with a copy of Form 1 or Form 1-A and scheduled date of the EAC/SEAC meeting for considering the proposal.

Where a public consultation is not mandatory, the appraisal shall be made on the basis of prescribed application in Form 1 and environment impact assessment report, in the case of all projects and activities (other than Item 8 of the Schedule), except in case where the said project and activity falls under Category 'B2', and in the case of Items 8 (a) and 9(b) of the Schedule, considering their unique project cycle, the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall appraise projects or activities on the basis of Form 1, Form 1-A, conceptual plan and the environment impact assessment report (required only projects listed 8(b) and make recommendations on the project regarding grant of environment clearance or otherwise and also stipulate the conditions for environmental clearance).

Every application shall be placed before the EAC/SEAC and its appraisal completed within 60 days of its receipt with requisite documents/details in the prescribed manner.

The applicant shall be informed at least 15 (fifteen) days prior to the scheduled date of the EAC/SEAC meeting for considering the project proposal.

The minutes of the EAC/SEAC meeting shall be finalised within 5 working days of the meeting and displayed on the website of the concerned regulatory authority. In case the project or activity is recommended for grant of EC, then the minutes shall clearly list out the specific environmental safeguards and conditions. In case the recommendations are for rejection, the reasons for the same shall also be explicitly stated.

(Emphasis Supplied)

The contention of Mr. Vivek Chib the learned Counsel appearing for MoEF is that a combined reading of Clause 7 (IV) stage (4)/ appraisal (i) along with Appendix V especially clause 6 of the said appendix, emphatically shows that in cases of recommendation of the project and grant of EC by MoEF or SEIAA, it is duty of the Authority to stipulate clear terms and conditions based on the recommendations made by EAC or SEAC as the case may be as that itself would amount to reasons, and in cases where the MoEF rejects the grant of EC it is incumbent on the part of the regularity authority to give reasons explicitly. Otherwise it is his contention that as per the statutory regulation, except imposing conditions to safeguard environment either specifically or generally there is no necessity on the part of regulatory authority to give any other reason for every aspect of recommendations of EAC but it is only in the cases of rejection of the proposal the reasons must be given by MoEF whether it is rejecting the recommendation of the EAC or otherwise.

It is no doubt true that when a proposal is recommended or rejected, in a common parlance , in order to comply with the principles of natural justice, assigning of reasons is a healthy practise. But in cases where statute enumerates a particular method, necessarily the said statutory method/stipulation ought to be followed. The Tribunal being a creature of law cannot in our considered view direct the parties to act against the statutory regulations even in the guise of enforcing the principles of natural justice. For taking the view that only in cases of rejection of EC the regulatory authority has to give reason but for granting prior EC except stipulating special and general conditions enforcing environmental safeguard, there is a plausible reason. In case of rejection the project proponent has a statutory right of appeal. For filing appeal necessarily the affected person must know the reason for such rejection. Therefore on a combined reading of the above said provisions enumerated above we are of the view that in case of grant of EC no specific reasons are necessarily to be assigned by the regulatory authority which of course is a mandatory requirement in case of rejection. To put it otherwise, it appears to be the legislative intent that when EC is granted for a project it is the utmost concern of the regulatory authority to preserve environmental safeguard and if it is rejected, reasons are necessary to be given explicitly to satisfy the concern of the affected project proponent to enable him to exercise his right of appeal effectively.

Further there is no question of applicability of general principles of administrative law when statute expressly explains certain provision.

This was also the view of the Hon'ble Central Zonal Bench of the NGT at Bhopal in Appeal no. 8 of 2013 (Ramesh Agrawal Vs Union of India through MoEF and Ors.) (CZB), wherein under similar circumstances the Tribunal has held that when the law prescribes a specific provision of format on a special subject, the same has to be followed and one cannot infuse the general principles of law. The relevant paragraph of the Judgment are as follows :

"28. Lastly, it has been submitted by the Appellant that the EAC ought to have given reasons for acceptance or rejection. We find from the material on record that at several stages of the appraisal various queries were raised and further information was sought from the Project Proponent. This is evident from the Minutes of the Meetings of the EAC. After each such meeting the NTPC has submitted its response with supporting material and documents which came to be placed before the EAC in the subsequent meetings where it is recorded that various material received from the Project Proponent was placed before the members for consideration and on having considered the same the Committee was satisfied and recommended that the EC may be granted.

Learned Counsel argued at length that this was not in accordance with the law as laid down in various judgements regarding appreciation of the material, it consideration and requirement to give reasons. We have given out thoughtful consideration to the above submission and the judgements relied upon by the Learned Counsel for the Appellant. While there can be no quarrel with the general proposition of recording the facts and circumstances of the present case, the procedure for appraisal has been prescribed under the Environment Clearance Regulations, 2006 itself in detail along with the format prescribed under Appendix V in which the order is required to be passed. Unfortunately, in the cases cited before us this aspect has not at all been cited.

The procedure as provided and prescribed under the Environment Clearance Regulations, 2006 is as follows:

"7. Stages in the Prior Environmental Clearance (EC)

Process for New Projects.

APPENDIX -V (Already enumerated above)

The Scheme of appraisal quoted above clearly goes to show that under para IV Stage (4) Sub para (i) while carrying out appraisal the Expert may seek to clarify any doubts by inviting the Project Proponent if any clarification is required. The necessity is only in the event of any doubts requiring clarification from the Project Proponent and not any other person. On conclusion of these proceedings the EAC or SEAC concerned shall make their recommendations to the regulatory authority either for grant of prior EC on terms and conditions or for rejection of the application for prior EC. In our view the words "together with reasons for the same" only refer to reasons for rejection. This is clear from a perusal of sub-para (iii) of Para IV. Stage (4) under which it is provided that "the prescribed procedure for appraisal is given in Appendix V". A perusal of Appendix V para 6 quoted above only requires that in the case of favourable recommendation for grant of EC "the minutes shall clearly list out the specific environmental safeguards and conditions" as opposed to giving any reason for acceptance of the application. It further provides that it is only "in case the recommendations are for rejection, the reasons for the same shall also be explicitly stated. Unfortunately while deciding some of the cases the above statutory provision and requirement of giving reasons only in the case of rejection as opposed to reasons for giving a favourable recommendation with specific environmental safeguards and conditions, was not cited and thus the judgements came to be delivered on the basis of general principles of administrative law. When there is a specific provision and a format is prescribed under the law dealing the special subject the special law shall override the general law and no fault can be found if the recommendations for grant of EC by the EAC in favour of the Project Proponent when made without elaborating the same in the order for acceptance. The law has taken care to provide remedy to any person aggrieved in the form of filing an appeal against the grant of EC which the Appellant has done in the present case and on a consideration of the issues raised in the appeal, we do not find any substance in any of the objections raised before us so as to warrant interference even assuming the reasons ought to have been recorded for the benefit of any objector or member of general public".

While subscribing to the views of the CZB of NGT, Bhopal as narrated above, we do not subscribe to the views expressed by the WZB Pune of NGT in this regard as relied upon by the learned Counsel for the appellant in Gau Raxa Hitraxak Manch and Gauchar Paryavaran Pouchav Trust, Rjula Vs. Union of India in M.A. No. 94/2014 (WZ) in Appeal No. 16/2014 (WZ). In that case a reference to the consent order made in M.A. shows that the parties have accepted that EAC or MoEF shall pass (speaking orders) giving reasons either for recommendation/non- recommendation of approval or rejection. Apart from the fact that this is a consent order passed in M.A. there is no discussion about either clause 7 (IV) and Appendix (V) together and the said order cannot be treated as laying down a law. In any event, one cannot give a go bye to the statutory provisions in the guise of entering consent or agreement. Therefore we disagree with respect, to the views of the WZB, Pune and totally agree with the elaborate order of the Hon'ble NGT Bench of CZB, Bhopal. For all the reasons stated above and looking from any angle we are unable to take a stand that the impugned EC granted to the project proponent is liable to be held invalid. Accordingly we hold that the EC granted to the project proponent dated 10.02.2010 for Demwe Lower HEP 1750 MW project in Lohit District of Arunachal Pradesh is perfectly valid in law and is in accordance with the provisions of EIA Notification 2006.

Consequently the Appeal is devoid of any merits and liable to be dismissed and accordingly dismissed, however without any order as to cost.

While, parting with, we make it clear that all the special and general conditions stipulated in the EC shall be scrupulously followed by the project proponent and the same has to be properly monitored by both the regulatory authority and the State Pollution Control Board, We also reiterate that the project proponent must take all necessary steps to see that the existing nature of Parasuram Kund, including its water flow, especially during Mela season shall be maintained and all agreed developments in and around the Kund shall be carried out and the entire area is maintained with serene atmosphere. Further, the River Basin Study shall be completed expeditiously and any recommendations/decisions arrived at therein shall be directed to be strictly followed by the project proponent. The minimum environmental flow in respect of Demwe Lower HEP as stated in the studies of EIA/EMP, on the downstream discharges shall be maintained for the survival of the fish species and all aquatic life.

Experience is the best teacher and therefore, we should not refuse to learn from our experience of running HEP in the given situation. We, therefore, direct the MoEF and Arunachal Pradesh State Pollution Control Board to undertake study of impacts of the project on the environment including flora and fauna downstream Lohit River till 2020 for a period of next 5 years at the cost of the project proponent namely respondent no.3.