Swami Gyan Swarup Sanand And Ors vs Union Of India And Ors

The Miscellaneous Application has been filed invoking jurisdiction under section 26 read with section 28 of the National Green Tribunal Act, 2010, inter-alia, seeking following reliefs:

(a) Take appropriate action against the Respondent for not complying with the directions/orders of this Hon'ble Tribunal dated 17.07.2012, as per law;

(b) Direct MoEF not to issue Environment Clearance or Forest Clearance to any hydropower project on the Ganga or its tributaries till the submissions made by the Applicants before the IMG are considered and a reasoned order is passed;

(c) Direct MoEF to add a condition to any directive issued regarding E-flows to operational or under construction projects that the same would be subject to the outcome of this Application;

(d) Direct MoEF to stay the Environment Clearance or Forest Clearance of all projects on Ganga where actual construction has not started till the submissions made by the Applicants before the IMG are considered and a reasoned order is passed;

(e) Direct MoEF to stipulate E-flows after reassessing the Environmental Management Class (EMC) of the Ganga after considering the submission of the applicants;

(f) Direct MoEF to commission a study on the technical and economic feasibility of the alternative of partial obstruction;

The Applicants appeared to be aggrieved due to non- compliance of this Tribunal's order dated 17.7.2012 directing the Ministry of Environment & Forests (MoEF) or the Committee constituted to examine the suggestions/objections/representations, if any, said to have been filed by the Applicants along with other materials available while dealing with the reports/study conducted by the Indian Institute of Technology, Roorkee and Wild Life Institute of India, Dehradun. The grievance of the Applicants is that even though the Chairman of the Inter-Ministerial Group (IMG) constituted by the MoEF did hear their views but the written representation made by the Applicants do not find place in the final report of IMG. According to the Applicants, there is nothing in the IMG report to indicate that their submissions have been considered and hence there is contempt of this Hon'ble Tribunal order dated 17.02.2012. The Applicants have also opined that it was incumbent on IMG to give reasoned responses to the submissions made by the Applicants which have not been done.

IMG has already submitted its report to MoEF which is under consideration. It has been stated by the Applicants that their original Application (OA No. 26/2011) was directed against the two studies done by IIT, Roorkee and WII. The IIT, Roorkee report has been rejected both by IMG and the Hon'ble Supreme Court in its judgment dated 13.08.2013 in SLP No. 362/2012. As such, the grievance of the Applicants now is only with respect to the Wildlife Institute of India (WII) Report. According to the Applicants, the errors and the omissions in the WII Report include the following:

- River lengths to be affected due to various hydro-electric projects.

- Gap between the projects (the distance between the projects to avoid overcrowding).

- Misclassification of Environment Management Class (EMC) regarding E-flows.

Besides the above, the Applicants have stated that the construction of dam or barrage across the river bed will have huge negative impacts on water quality as also on aquatic bio-diversity due to obstruction of migratory route of the fishes and have, therefore, suggested the alternative for harnessing the hydropower potential by a cascade of projects with proper designing to avoid any negative impacts. The Applicants have further stated that WII has recommended reappraisal of 24 projects whereas IMG has recommended reappraisal of only 17 proposed projects and according to the Applicants both WII and IMG have ignored the need for reappraisal of projects under construction and projects under operation. Applicants have also mentioned that in the United States dams have been de-commissioned and WII and IMG have not applied their minds towards decommissioning of these projects in India even though they have huge environmental implications.

Perusal of the affidavit filed by the MoEF in MA No. 461 of 2013 indicates that IMG was constituted on 15.06.2010 under the Chairmanship of Shri B.K. Chaturvedi, Member, Planning Commission to look into the issues related to Ganga river. The IMG has submitted its report which is under consideration of MoEF and the comments of Ministry of Power, Ministry of Water Resources and Government of Uttrakhand have been invited which will be placed before the National Ganga River Basin Authority. It is further stated that the Applicants, namely, Shri Swami Gyan Swarup Sanand and Shri Bharat Jhunjhunwala have been consulted by the Chairman, IMG on 17.09.2012 and 27.08.2012 respectively. However, rejoinder filed to the reply affidavit of MoEF (R1) indicated that Applicant No. 1 and 4 were heard by the Chairman, IMG but their written representation has not been reflected in its final report. It is stated by the Applicants that their representation should have been examined in detail and reasoned responses should have been given in the report but the same has not been done by IMG.

We have traversed through the affidavits rejoinder, representation and other documents submitted by Applicants and Respondents and opine that the issues raised by the Applicants need to be examined critically by MoEF before finalising the IMG report. Accordingly, we reiterate our earlier views as expressed in NGT judgment dated 17.07.2012 that MoEF should hear the Applicants and also consider the documents, technical reports and such other materials pertaining to the hydro-electric projects and river valley projects in Uttarakhand and pass reasoned decision covering each point raised in the documents/submissions made by the Applicants. There are a number of judgments signifying the need of recording the reasons for its decisions/orders passed by an administrative authority/judicial/quasi-judicial body which serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. Ultimately, what is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration and applied its mind to the points in controversy. Therefore, in our opinion the requirement of recording the reasons is very essential and that should be the basis for governing the decision of the Committee exercising the administrative power. In this regard, reference can be made to the judgments of the Hon'ble Supreme Court in the cases of Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India & Anr. [(1976) 2 SCC 981]; and Assistant Commissioner, Commercial Tax Department Works Contract and Leasing, Kota v. Shukla & Brothers [(2010) 4 SCC 785].

We, therefore, direct MoEF to give proper hearing to the Applicants and consider carefully the documents, reports and such other materials and submissions as may be made by them and record reasoned decision/response covering the points and issues raised therein before finalising the report submitted by IMG.

The M.A. No. 461/2013 is accordingly disposed of with no order as to costs.