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Judgment
Deepak Gupta, J.—These two writ petitions are being disposed of by a common judgment since identical questions of law and fact are involved in the same and the grievance of both the petitioners is against the setting up of the Hul Hydro Electric Power Project.
Briefly stated the facts of the case are that on 16.11.1996, a memorandum of understanding (MOU) was signed between the Government of Himachal Pradesh and M/s. Astha Project for installation of the Hul Project. Later on 15.2.2001 MOU was signed between the Government of Himachal Pradesh and M/s. First Hydro Generation Power (P) Ltd. On 8.6.2005, implementation agreement was also signed between the parties. Initially, the detailed project report for implementing the Hydro Project in question was prepared taking into account the capacity of the Project at 2.35 MW. Finally, the execution work of the Project was handed over to M/s. Hul Hydro Power Pvt. Ltd. when the capacity of the project was increased to 4.5 MW. 3. It is more than apparent that the local people of the area objected to the setting up of the Project and various societies were formed in this regard. Sh.Rattan Chand who is the petitioner in CWP No. 2273 of 2010 is a sitting member of the Zila Parisad, Chamba and convener of Sal Ghati Bachao Morcha. This Morcha has been constituted by the residents of 16 Gram Panchayats and some residents of Chamba town. Sh.Man Singh, petitioner in CWP No. 2727 of 2011 is President of Gram Panchayat, Jadera and he has filed this petition not only in his personal capacity but his claim has been supported by the Resolutions of the Neighbouring Panchayats also. 4. Sh.Ashwani Pathak, learned counsel for the petitioners has raised the following issues objecting to the setting up of the Project:
a) that when the area was surveyed and detailed project report was prepared, it was prepared for a project of the capacity of 2.35 MW which has now been increased to 4.5 MW and this obviously will lead to greater degradation of the ecology and environment.
b) he submits that three water supply schemes are fed through the Hul khad and the local people will be deprived of water from this khad.
c) his next objection is that various Departments of the Government have wrongly given clearance for the Project. According to him, the number of trees which shall actually be felled/damaged during the construction of the Project is much more than the number shown in the forest clearance given. He also submits that there is no report with regard to the loss of shrubs and medicine plants.
d) He finally submits that various officials of the Government have been taking different stands at different times. According to him, there are different reports which differently assessed the impact of the Project on the water which shall be available to the villagers and he has specifically referred to the reports of the Departments.
Sh.Ajay Mohan Goel, learned counsel appearing on behalf of the Project proponent submits that the Project proponent has obtained necessary permissions from all the authorities and that the petitioners have raised objections because of some personal vested interest in the matter. He further submits that the Project was divided into two phases i.e. Hul-1 & Hul-2. The Committee appointed by the State Government which gave its report on 25th July, 2007 specifically approved the construction of the Hul-1 project and came to the conclusion that if the Company took some remedial measures the people of the area would not be affected. The Committee after visiting the spot came to the conclusion that there will be no effect on the availability of water but suggested some changes in the design of the water channel which were accepted by the Company. Despite this, the Company was not permitted to start work. Though, the State allowed the Project proponent to start construction of the Hul-1 project as per the recommendations of the Expert Committee, the petitioners on one pretext or the other created hurdles in the setting up of the Project.
This Court is not going into the merits and the rival allegations as to who instigated the violence but the fact is that the confrontation between the two sides took a violent turn on more than one occasion. The project proponent thereafter filed CWP No. 425 of 2010 in this Court wherein the Court passed the following order:
The Writ Petition has been filed with the following prayers:
A. This Hon�ble Court may kindly be pleased to issue a writ of Mandamus directing respondents No. 1 to 5 to permanently take all the effective steps in prohibiting/stopping respondents 6 & 7 as well as other persons working their influence from carrying out their illegal activities in the form of arson, gate meetings, abuses, violence, unauthorized restraint stoppage of work and preventing workers from performing their duties within 500 meters of the Office of the petitioner Company at village Sarol District Chamba, its site office at Village Kaliyon, Chamba as well as the project sites of the petitioner Company situated at Village Gon, Dhar, Loyl, and Kalityon. This Hon�ble Court may be pleased to issue a writ of mandamus directing respondents 1 to 5 to provide adequate security cover at the office and the project site of the petitioner company to safeguard the life and property of the officers and workers of the petitioner Company as well as that of petitioner Company and to ensure that respondents 6 to 7 are not able to cause any harm to the life and property of the officers and workers of the petitioner Company as well as that of petitioner Company and to ensure that working atmosphere at the project site is maintained and those workers willing to work are able to perform their duties without any threat.
B) This Hon�ble Court may direct respondents 1 to 5 by way of issuance of writ of mandamus to lodge appropriate First Information Reports against respondents 6 & 7 on the basis of the complaints of the petitioner Company and take appropriate action against the said respondents in accordance with law.
The learned Addl. Advocate General on instruction submits that with reference to the allegations raised in the Writ Petition, the police has taken prompt action and two complaints have been registered as FIR No. 36/2010, dated 19.2.2010 and FIR No. 32/2010, dated 14.2.2010 on the file of the Police Station Chamba and the matter is under investigation. It is also submitted that as and when any request is received for protection, the police will take prompt action and render necessary assistance for carrying out the works at the site. Therefore, this Writ Petition is disposed of without prejudice to the continuance of the proceedings already initiated by the police and with a further direction to the police to render all necessary and effective protection to the petitioner for carrying out the works as and when requested by them, at the expense of the petitioner.
We also make it clear that this judgment shall not stand in the way of respondents No. 6 & 7 or any members of the public recording their protest in a peaceful manner without creating any law and order problem at the site.
Thereafter, the private respondents also filed applications for review of this order which were disposed of by the Division Bench, relevant portion of which reads as follows:
CMPs No. 3393 and 7124 of 2010:
...We fail to understand as to how the applicants are affected or aggrieved by the judgment. One apprehension expressed by the applicants is that under the garb of the judgment, the writ petitioner might involve in illegal activities. We do not think that there is any basis for such an apprehension. The judgment cannot be made use for any illegal activities. The protection that is to be given is only in respect of the works which are duly sanctioned by the competent authorities. By way of abundant caution, we also make it clear that in respect of any grievance regarding the works already sanctioned, it is certainly open to the applicants herein to pursue their grievance in appropriate proceedings and the judgment rendered by this Court will not stand in the way of the proceedings thus to be pursued by the applicants herein. Subject to the above clarification, both the applications are disposed of.
It would be pertinent to mention that questions with regard to the effect of the Hul-1 & Hul-2 Hydro Electric Projects were raised in the H.P. Vidhan Sabha in March, 2007 and the then Hon�ble Minister for MPP and Power assured that a Committee would be constituted to review these projects. Consequent to such assurance a Committee under the Chairmanship of the Deputy Commissioner, Chamba was constituted vide notification dated 10.4.2007 and this Committee which was chaired by the Deputy Commissioner, Chamba and comprised of the Superintending Engineer (IPH), Chamba, Sub Divisional Officer (C), Chamba, Divisional Forest Officer, Chamba, Project Officer, HIMURJA Chamba, Assistant Engineer, H.P. Pollution Control Board, Pradhan, Gram Panchayat Jadera, Pradhan Gram Panchayat Barour and Pradhan Gram Panchayat Sillagharat went into all the objections raised by the villagers. The Findings of this Committee are as follows:
Findings:
Keeping into consideration, the views/comments offered by various NGO�s and local public during the visit of Hul-I and Hul-II and during meeting with Panchayat representatives of Gram Panchayat Barour, Jadera and Sillagharat on June 6, 2007 and June 25, 2007. The Committee is of view that there will be no effect about the availability of water/discharge at the present intake point of water supply scheme to Chamba town existing/execution. But, with due regards to the sentiments of local public and their foresighted thoughts, it can be considered in the larger interest of both the parties, that the company which is constructing Hul-I should consider the design/alignment of feeder channel from diversion weir to tail race end in such way that some quantity of water can be made available to the villagers through siphon outlets at nallaha points and near their fields in villages. This will not only protect the ecology of the area, but will maintain fauna and flora of the area. This way nearby springs and nallaha do not go dry during the lean period, and the villagers will not feel deprived off the gifts of the Hul Nallaha and springs in and around the space where Hul-I is coming up. So, if company takes all remedial measures in redressing the grievances of public on spot time to time; the Hul-I, which is perceived by public perception as
"Eco-un-friendly will become Eco-friendly.:
So far as the construction of Hul-II is concerned, the Committee does not see it feasible as the I.P.H. Department feels that there will be more requirement of water to Chamba town and other down stream areas of present intake. Keeping in consideration, the discharge available during lean period, the issuing of NOC is not possible in the larger interest of people of the area, in view of the water supply and irrigation needs of the people. So, if the execution of Hul-II is allowed, it will effect on the irrigation facilities to villages Chambi, Andralu, Khander, Kindari, Chameri, Kharkal, Lanji and Barour. It will also affect the cutting of healthy pine trees growth in village Lanji. Hence, execution of Hul-II is not only hazardous to ecology/forest growth, but will hamper the irrigation facilities to the above mentioned villages; who are directly dependent on the water of this nallaha for the growth of vegetables, which is main sustenance for their livelihood. So, the committee feels in view of public sentiments and every burgeoning population the quantity of water is not sufficient enough for the execution of Hul-II project.
Sd/- Sd/- SD/-
Deputy Commissioner Chamba, (Chairman) Superintending Engineer, IPH, Circle Chamba, Member Sub-Div. Officer (C) Chamba,Member
Sd/- Sd/- Sd/-
Divisional Forest Officer Chamba, Member Project Officer Him Urja, Member Secretary Assistant Engineer, Pollution Control Board Chamba, Member
Sd/- sd/- sd/-
Pradhan G.P. Jadera Member Pradhan G.P. Barour Member Pradhan G.P. Sillagharat Member
This Committee clearly came to the conclusion that Hul-II project was not feasible and viable and would adversely affect the requirement of Chamba town. However, as far as Hul-I Project was concerned it was of the opinion that it would not in any manner affect the availability of water for Chamba Town and the villages. It suggested a re-alignment of the feeder channel so that some water could be made available to the villagers through some siphon outlets at notified points. The Company accepted these recommendations. Therefore, as far as the Hul-I project was concerned the Committee recommended the construction thereof.
Thereafter, HIMURJA through which the Project is being executed permitted the construction of the Project to be re-started subject to the condition that the suggestions made by the Committee are verified and confirmed through some senior official of the Project.
Thereafter another complaint was received from Sh.Rattan Chand, Coordinator of the Sal Ghati Bachao Morcha that the Project had been restarted without permission and on Government land. Again, the Deputy Commissioner, Chamba was asked to make a spot inspection to verify the facts and submit its factual report and the Department directed the Company not to take up any work. The Deputy Commissioner vide his letter informed the highest authorities that on verification it had been found that neither the Project authorities had started construction nor they had encroached upon any Government land.
However, the Government again asked the Deputy Commissioner to give comments on each of the points raised by Sh.Rattan Chand especially on the main issue that the project was likely to affect the availability of drinking water to a number of villagers and also to Chamba town. Letter in this behalf was sent to the Deputy Commissioner on 8th September, 2009. The Deputy Commissioner in turn asked the SDO(C), Chamba and he vide his letter dated 18th November, 2009 agreed with the report of the SDO(C), Chamba. As per this report, the intake point of the Project was at elevation level of 1639.36 meters from where the water was taken to the power house situated at 1354.54 meters. Thereafter, again the water would enter the Hul Nallah. It found that the water would be released in the power house about 140 meters above the point from which water is taken to Chamba town and therefore this scheme would not be affected at all. With regard to the effect on the forests it again came to the conclusion that adequate measures have been taken for afforestation and the Project proponent had deposited an amount of Rs. 2,71,000/-. In respect of irrigation it found that no effect would be made on the irrigation.
With regard to the water mills, the report states that a total of 11 water mills would be affected but according to the terms and conditions entered into between the parties, the project proponent was to make sufficient water available to the water mills and the water could not be stopped by the project authorities.
It was also found that the Project was Eco-friendly and therefore thereafter on 30.11.2009 permission was granted to the project authorities to again start the construction of the Project.
It is not for this Court to go into each and every aspect of the matter but the various Committees constituted have found that the Project does not affect the availability of drinking water to the villagers or to the residents of Chamba town. When any Project of this nature is taken up, there is bound to be some damage to the environment and the ecology. However, that by itself is not a ground to stop the Project, otherwise there would be no construction activity and no power projects could be set-up. At the same time, while setting up these Projects it must be ensured that the authorities have weighed the benefits of the Project on the one side and have also taken into consideration the adverse affects which the Project will have. Remedial measures can also be suggested and if it is found that the benefits far outweigh the losses then a Project can be permitted. Normally, this court would not sit in judgment over the opinions expressed by the officers on the site unless they are shown to be perverse. We also find that in this case an agreement was entered into between the I&PH Department and the Hul Hydro Project Ltd. which contains the following clauses:
4.That the IPH Department has the power to stop the construction work of the Hul Hydro Power Pvt. Ltd. Project, if any ongoing water supply schemes disturbed/effected by the firm during construction of the Project.
5.That if any private Kuhls disturbed/effected due to execution of this Project, the Project authority has to talk with the beneficiaries of the Pradhan Gram Panchayat concern for its alternative arrangement.
6.That if any water supply schemes or irrigation schemes/submerged/ disturbed due to the construction of this project, the project authority will have to pay the compensation claim for that as per the estimate sanctioned by the department.
7.The firm shall ensure that if there is any future requirement of this department for construction of water supply schemes/irrigation schemes, the same shall be made available by the firm.
The Department reserved the right to draw as much as quantity of water as required from Hul Nallah for preparing any new schemes.
The apprehensions of the villagers are misplaced and the project proponent has agreed to make sufficient water available to the villagers. Therefore, as far as the challenge of the petitioners on the ground of affecting their water supply and ecological adversities is concerned, in our opinion there is no merit in the contentions of the petitioners in view of the reports of the Committees and the agreement referred to above.
Unfortunately, the matter does not end here. As mentioned hereinabove there were violent confrontations between the villagers and the workers/contractors of the Project proponent. An incident of firing also took place and thereafter a memorandum was sent by the CPI(M) to the Government seeking another inquiry into the Project. The Deputy Commissioner, Chamba was asked to conduct an inquiry and the Deputy Commissioner vide his letter dated 20th February, 2010 stated that permission to the project proponent has been granted to construct the project and further stated that as far as the firing incident is concerned that was subject matter of judicial proceedings and he could not say anything further in the matter.
The Government however decided to again have a re-look at the project and a letter was sent by the Principal Secretary (NES) to the Deputy Commissioner, Chamba on 6th March, 2010 and the Deputy Commissioner was specifically asked to look into the whole issue of public perception. He was specifically asked to submit whether Hul-I project should be constructed in view of the law and order incident.
Thereafter, the Deputy Commissioner constituted a Committee under the Chairmanship of Additional District Magistrate, Chamba to look into the matter afresh and submit its report. An inquiry was conducted and it was again decided that the execution of the work of the Project be held in abeyance pending inquiry. The inquiry was conducted by the Additional District Magistrate who issued public notice and heard both sides. Statements of various witnesses were recorded. Whereas some people opposed the project, some of the Pradhans even supported the project. Some other peoples also supported the Project. The ADM however found that a law and order problem had cropped up which could not be pacified in a short span of time and the execution of the work is not feasible in the present scenario of law and order problem in the area.
Thereafter, the Deputy Commissioner, Chamba was asked to comment on the Inquiry Report of the ADM and he thereafter submitted his opinion that the MOU and the agreement with the Company i.e. M/s. Hul Hydro Project should be cancelled in the public interest. The main consideration which weighed with the Deputy Commissioner was the law and order problem which had cropped up. This letter was sent by the Deputy Commissioner to the Principal Secretary (NES) on 21st June, 2010. Thereafter, a show cause notice was issued to the project proponent as to why the agreement be not cancelled on 25.8.2010 and the project proponent replied to the said notice on 29.9.2010.
It is unfortunate that neither the Deputy Commissioner nor the Project Proponent thought it fit to bring to our notice this show cause notice or the reply which had been filed by the project proponent. We are also constrained to observe that whereas the Deputy Commissioner in his comments sent to the Government on 21st June, 2010 had recommended that the Project be cancelled, he in reply to the petition which was supported by the affidavit of Sh.Devesh Kumar, Deputy Commissioner dated 23.7.2010 opposed the petition and prayed that the same be dismissed. We do not expect authorities like Deputy Commissioner to take such conflicting stands which will cause more confusion and create more problems for the State Government itself.
In view of the above discussion, we are of the considered view that the petitioners have failed to point out that how the project will in any way affect their rights and therefore the petitions are dismissed. However, it is made clear that in case the State wants to cancel the Project on any other ground on the basis of the show cause notice issued on 25.8.2010, it may take further action in the matter in accordance with law after hearing the project proponent who shall have a right to oppose the show cause notice on all grounds available to it. If the decision is taken to cancel the project the project proponent can challenge the same in proceedings before this Court. No costs.