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Judgment
Prafulla C. Pant, J.—By means of this petition filed in the form of Public Interest Litigation , the Petitioners have sought writ in the nature of certiorari quashing the transfer of environmental clearance in favour of Respondent No. 3. A mandamus has also been sought seeking a C.B.I. inquiry relating to the enhanced capacity of 330MW mentioned in the letters dated 27.07.1999/27.03.2006. Further mandamus has been sought directing the Respondent No. 3 to stop the construction of the Hydro Power Project, and seeking environmental clearance for 330 MW capacity, and increased height of 90 meter.
Heard learned Counsel for the parties, intervener in person, and perused affidavits, counter affidavit, and rejoinder affidavits.
Brief facts, of the case, are that Uttar Pradesh State Electricity Board (U.P.S.E.B.) envisaged Srinagar Hydro Power Project of Alaknanda river in early 80''s, and Detailed Project Report (for short DPR) was submitted for construction of a hydro power project over Alaknanda River for generation of 200 MW of electricity by constructing a dam with a height of 63 meter. A necessary clearance was sought from the Ministry of Environment and Forest (for short M.O.E.F.) which was granted by said Authority vide its letter dated 3.05.1985. However, construction of the project could not be started, and in the year 1994, a Memorandum of Understanding (for short MOU) was signed with the Duncan Industries Ltd. (for short DIL), and said company undertook to construct the project. Later, the power project was further transferred to Duncan North Hydro Power Company Ltd. (for short DNHPCL) in the year 1998. Finally, in the year 2004, MOU was signed between the State Government and the Respondent No. 3 Alaknanda Hydro Power Company Ltd. (for short AHPCL), and the project was transferred to it under the agreement dated 08.02.2006. It appears that thereafter the construction work of the Srinagar Hydro Power Project , Alakananda, started. Meanwhile, in the year 1996, i.e. after the environmental clearance was given by M.O.E.F. to U.P.S.E.B. on 03.05.1985, another DPR was submitted for construction of the same Hydro Power Project for increased generating capacity of 330 MW with a height of dam 90 meter. The M.O.E.F., through its letter No. J-12011/6/96-1A-1 dated 27.07.1999, informed the DNHPCL that the environmental clearance dated 03.05.1985 is transferred to said company in terms and conditions mentioned in the clearance letter. After present Respondent No. 3 took over the project in the year 2006, vide letter No. J-12011/6/96-1A-1 dated 27.03.1999. M.O.E.F., of Government of India finally transferred the environmental clearance already granted by it in the year 1985, in favour of the present Respondent No. 3 i.e. Alaknanda Hydro Power Company Ltd..
The case of the Petitioners is that the clearance which was given by the MOEF in the year 1985, was in respect of generation of 200MW of electricity, and for a height of 63 meter of the dam, but the same is wrongly being interpreted by the Respondents, as clearance for 330MW with increased height of 90 meters of the dam. On the other hand, the response of the Respondent No. 3 is that the environmental clearance given by the MOEF allows said Respondent to construct the dam with a height of 90 meter for generating 330 MW of electricity, as the clearance was transferred after the revised DPR was submitted by the transferee construction agency. It is also pleaded on behalf of the Respondent No. 3 that the Hydro Power Project is at the last leg of its construction, and huge amount has already been spent in the construction work, and project cannot be allowed to be frustrated at this stage.
Before further discussion, we think it just and proper to quote the letter dated 3.05.1985, issued by MOEF of Government of India, which reads as under:
No: J-11016/8/82-Env.5
Government of India
Ministry of Environment and Forests
Department of Environment
Bikaner House
Shahjahan Road
New Delhi-110011
Dated /May 3, 1985
The Secretary
Central Electricity Authority
Sewa Bhawan, RK Puram
New Delhi-110066
Sub: Srinagar Hydro Electric Project -Environment Impact Assessment.
Dear Sir,
As you are aware that the portfolio of 23 hydro electric projects in the Ganga Basin are being considered together to ensure that the cumulative impact of these projects can be realistically assessed. Therefore, the above projects had been kept pending until the availability of the three Expert Working Groups constituted by the Planning Commission. However, on the basis of discussions between the Uttar Pradesh Chief Minister and Prof. M.G.K. Menon and Dr. T.N. Khoshoo, Secretary, Department of Environment, it was decided that this project may be delinked from the portfolio of the remaining projects in view of the acute power shortage in the area. Accordingly, Prof. Menon wrote to the State Government that the project is being delinked with certain condition (copy enclosed for ready reference).
The proposal has since been discussed by the Inter-Ministerial Environmental Appraisal Committee in which it has been decided that the project authorities be requested to prepare a time targeted Action Plan to implement a Master Plan for Catchment Area Treatment in the Alaknanda and Bhagirathi Basins concurrently with the execution of the project including the various environmental safeguards. This Action Plan should be finalised by a Committee to be constituted by the State authorities with representation of the Union Department of Environment and the Planning Commission. Amongst others, the following safeguards should also be include in the Action Plan:
(i) Fuel wood should be provided to the construction stage so as to prevent indiscriminate falling of trees in the neighbouring areas. The budget estimate should, therefore, be suitably augmented.
(ii) Critically eroded areas in the catchment should be identified for undertaking time bound soil conservation programme in the first phase, concurrently with the construction works. The catchment area treatment plans be worked out expeditiously.
(iii) Afforestation should be undertaken on a large scale in the project area and 50 m wide green belt created around the periphery of the reservoir.
(iv) Geomorphological studies be undertaken in the catchment to formulate plans for the stability of slopes on reservoir periphery through engineering and biological measures.
(v) A monitoring committee should be constituted, in consultation with the Department of Environmental to over see the effective implementation of the suggested safeguards.
2 After preparation of the detailed Action Plan as suggested above, additional safeguards would be suggested for incorporation in the project.
3 The project is approved subject to implementation of the above conditions concurrently with the execution of the engineering works."
Yours faithfully
Sd/
(S. Mudgal)
Member-Secretary
Environmental Appraisal Committee
Though height and the generating capacity of the dam is not mentioned in the aforesaid letter but, it certainly refers to the project as it existed in the year 1985. It is not disputed between the parties that originally proposed height of the dam was 63 meter, and proposed generation capacity was 200MW. Copy of letter No. I-26(2)/4/84 P&E dated 29.01.1988, issued by Planning Commission also shows that after Planning Commission approved Srinagar Hydro Electric Power Project for 200 MW vide its letter dated 16.04.1986, a revised project was submitted for 6 X 55 (330MW) which was approved by the Planning Commission vide said letter dated 29.01.1988. In said letter, height of the dam is mentioned as 85 meter (above deepest foundation). Meanwhile, Environment (Protection ) Act, 1986, came into force under which MOEF issued a standing order No. 60(E) dated 27.01.1994, (amended vide standing order No. 801-E dated 07.07.2004) which provided as under:
In exercise of the powers conferred by Sub-section (1), and Clause (v) of Sub-section (2) of section (3) of the Environment (Protection) Act,1986 (29 of 1986) read with Clause (d) of Sub-rule (3) of Rule (5) of the Environment (Protection) Rules, 1986, the Central Government hereby directs that on and from the date of publication of this notification in the Official Gazette expansion and modernization of any activity (if pollution load is to exceed the existing one, or new project listed in Schedule I to this notification, shall not be undertaken in any part of India unless it has been accorded environmental clearance by Central Government in accordance with the procedure hereinafter specified in this notification). The said planning order which appears to have been revised vide planning order 801-E dated 07.07.2004, further provides that new construction projects which were undertaken without obtaining clearance required under this notification, and where construction work has not come up to the plinth level, shall require clearance under this notification with effect from the 7th day of July 2004.
On the basis of above mentioned standing order it is argued on behalf of the Petitioners that the clearance transfered by MOEF in favour of the Respondent No. 3 does not cover the increased capacity, and height of the dam in question. On the other hand, attention of this Court is drawn on behalf of the Respondent No. 3 to letter dated 6.09.2010, issued by MOEF which contains following comment " there have been no changes in the dam top road, and full reservoir levels since the proposal for 330 MW development was first noted in 1986. The levels were and continued to remain El 611.0meter and El 605.5 meter respectively". Reliance is also placed on the "subject" mentioned in the letter dated 27.03.2006, by which clearance was transfered by the MOEF in favour of the Respondent No. 3 i.e. "330MW Srinagar Hydro Electric Project Uttaranchal, transfer to environmental clearance in favour of M/s Alaknanda Power Company Ltd. -reg." We have considered the documents relied on behalf of Respondent No. 3. On complete reading of the letter dated 27.03.2006, we find that the environmental clearance has been transferred as given to DHPCL vide letter dated 27.07.1999. The letter dated 27.07.1999, issued by MOEF reads as under:
Telegrams: PARYAVARAN
NEW DELHI
Telephone: 436 1316
Telex: W-aing moe IN
FAX: 4382878
GOVERNMENT OF INDIA
MINISTRY OF ENVIRONMENT & FORESTS
PARYAVARAN BHAVAN, C.G.O COMPLEX
LODHI ROAD, NEW DELHI-110013
No. J-12011/6/96-1A-1 27.07.99 Subject: Srinagar Hydroelectric Project (330MW) in U.P.-Transfer of Environmental clearance-reg:
Duncans North Hydro Power Co. Ltd. , may refer to their letter No. Nil dated 25th January, 1996 and subsequent letter dated 18th June,1999 on the subject. The Ministry of Environment & Forests hereby transfers the environmental clearance of the above mentioned project dated 3.05.1985 in favour of Duncans North Hydro Power Co. Ltd. , subject to the condition that the conditions stipulated in the aforesaid environmental clearance letter and any other condition if stipulated in future for protection of environment would be fulfilled and abided by Duncans North Hydro Power Co. Ltd.
Sd/
(Dr. S. Bhowmik)
Additional Director
Shri A.K. Mathur
Duncans North Hydro Power Co. Ltd.
D-37, Panchsheel Enclave,
New Delhi
From the above letter it is clear that letter dated 27.07.1999, refers to the clearance given vide letter dated 03.05.1985, in favour of the UPSEB. The above mentioned letter is silent as to the clearance of increased capacity or increased heights in the dam though in the subject "Srinagar Hydroelectric Project (330 MW) in U.P. -transfer of environment clearance -reg" is mentioned. It is argued on behalf of the Respondent No. 3 that since the above mentioned letter has been issued in response to the letter dated 25.01.1996, sent by DNHPCL it should be treated that the clearance has been given for the increased capacity.
After considering arguments advanced on behalf of the both sides we find that specifically there is no mention by MOEF in any of the letters that the clearance has been given for increased height of 90 meter or increased generating capacity of 330 MW. We think it pertinent to mention here that report of Central Empowered committee (for short CEC) (constituted by the Hon''ble Supreme Court of India) in its letter dated 11.02.2011, (copy Annexure 3 to the petition filed by Respondent No. 3), shows that after hearing the parties, CEC in its para 6 observes that ''MOEF'' is requested to look into the matter, and take a decision whether in the present case revised environmental clearance of said project is required or not. It is further mentioned in said para that appropriate follow up action may accordingly be taken.
In view of the above observation made by CEC , we disposed of this writ petition with the direction that the Respondent No. 3 may approach to Respondent No. 1 for a specific decision as to the clearance for increased capacity of generation , and increased height of the dam. The MOEF shall take decision within three months of making representation by Respondent No. 3, as the project in question is a time bound project. Needless to say that clearance has already been given by MOEF in the year 1985, which stands tra inferred in favour of Respondent No. 3, for construction of the dam for generation of 200 MW of electricity, and 63 meter height of the dam. The construction of the dam for said height , and for generation capacity of 200MW is not stayed but the construction beyond that limit may be proceeded after the further clearance from MOEF directed to be sought as above. Rest of the relief''s stand rejected.