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Judgment
This Review Application is filed under section 19(4) (f) of the NGT Act 2010 read with Rule 22 of the NGT (Practice and Procedure) Rules 2011 seeking review of the judgment dated 14.12.2011 in Appeal No. 5 of 2011 where under, the appeal was disposed of as noted below; in which grant of FC in favour of Respondent No. 2 by Respondent No. 1 was challenged. (This review application is filed only by Applicant No. 1, though three Applicants were shown in the cause title).
"Conclusions:
For all the above discussions and reasons, we are of the opinion that there are no substantial merits calling for our interference into the FC, in question, granted by the Respondent No. 1. The appeal stands disposed of subject to the following:
Integrated CIA Report preparation: The first respondent shall set up an appropriate committee of experts drawn from IITR and WII in the preparation of CIA report of the five projects considered in WII report to integrate the physical, biological and social impacts in making comprehensive cumulative impact assessment report and frame appropriate conclusions and recommendations within a reasonable timeframe for consideration and final review by the Ministry of Environment and Forests to avoid any unforeseen environmental and ecological threat in the study area in the light of the discussion made against Point (c). If this direction is not carried out, the appellant is at liberty to take appropriate steps as required under the law.
Preparation of Cost Benefit Analysis Norms: Considering the need for better procedures in making sound evaluation of the forest land diversion proposals as discussed in Point c(ii), following options for cost benefit analysis shall be explored for future proposals:
(a) The guidelines for cost benefit analysis may be updated/modified to provide clear instructions regarding the various cost and benefit elements to be incorporated for the purpose of arriving at cost benefit ratio; and
(b) The cost benefit analysis for each proposal received for diversion of forest land shall be done adopting the prescribed procedure."
The Learned Counsel for the Review Applicant raised mainly the following points and submitted that non-consideration of these points amounted to error apparent on the face of record and as such the order made in the appeal dated 14th day of December 2011 is liable to be reviewed by setting aside the said order and allowing the appeal:
Error apparent on the face of record in the judgment of the Tribunal regarding cumulative impact analysis report and fixation of environmental flow are not in consonance with the principles of sustainable development and precautionary principles.
The conclusions drawn with respect to the cost benefit analysis is contradictory to the findings recorded.
In this regard, the Learned Counsel has drawn our attention to various paragraphs of the Review Application to show that the conclusions of the Tribunal dated 14th day of December 2011 are contrary to the very findings recorded. It is unfortunate such a stand is taken by the applicant. No error apparent on the face of record has been brought to our notice to invoke review jurisdiction of this Tribunal. The findings recorded by this Tribunal are read in isolation without looking into the directions given by us in the concluding portion of the Judgment of 14th December 2011 which are noted as above. In so far as cumulative impact assessment was concerned, it was recorded after verifying the records produced by the respondent No. 1 in the appeal, which reads as under:
"....It is surprising that integration of the physical, biological and social aspects of the environments for arriving at the crucial decision making stage, has somehow not been attempted at all and respondent No. 1 has overlooked/ignored its own set of awarded TOR for the CIA. To illustrate this point while attempting CIA, impacts such as quantum loss of agricultural land, barren land, river bed land, number of project affected families, villages infrastructure, geological settings etc. has not been considered. In view of the stated figures and facts, it is difficult to surmise that what would be the outcome of the CIA study, if integration of physical, biological and social aspects in the present case is undertaken - may be the recommendations remains the same. GIVEN THE SITUATION, WHERE A LARGE VOLUME OF DATABASE IS AVAILABLE THROUGH PROJECT SPECIFIC EIAs APART FROM THESE TWO CIA REPORTS FROM IITR & WII, IT WOULD BE APPROPRIATE IF A SINGLE INTEGRATED CIA REPORT IS FINALIZED AND A FINAL DECISION IS TAKEN. By and large, tough it appears that every study was made but it does not appear to have made an integrated and comprehensive study for the purpose of flawless approach in making the CIA Report which is required to satisfy the principles of sustainable development and precautionary principles, SUBJECT TO SUGGESTIONS INDICATED INFRA."
The words "subject to suggestions indicated infra" were not reflected in the extract of the applicant in the review application. Similarly, the sentence "GIVEN THE SITUATION, WHERE A LARGE VOLUME OF DATABASE IS AVAILABLE THROUGH PROJECT SPECIFIC EIAs APART FROM THESE TWO CIA REPORTS FROM IITR & WII, IT WOULD BE APPROPRIATE IF A SINGLE INTEGRATED CIA REPORT IS FINALIZED AND A FINAL DECISION IS TAKEN" also did not reflect in the extract. In fact, in view of the above findings the concluding portion was added to take care of the situation. Further, this all was neither pleaded nor argued by the appellants. This had come to light while looking into the original records of the respondent No. 1 and, therefore such conclusions were drawn as a matter of policy for study of cumulative impact and to satisfy the "precautionary principle and sustainable development" and is the underlying factor for the creation of this Tribunal (which have been highlighted by the review applicant). Further it is not the case of the applicant that what is recorded is not in consonance with the documentary evidence provided by the Respondent No. 1. It is expected that the outcome of the study suggested would lead to a sound reasoning for the decision-making process. The Applicant has misread and misunderstood the purpose for which the discussion was made.
With regard to environment flow, the argument of the Learned Counsel for the review applicant that nowhere it has been mentioned as to how examination of facts and figures were done and the basis on which this Tribunal came to conclusion that the environmental flows follows the principles of sustainable development and precautionary principles and the environmental flow could have been accepted only after considering an integrated CIA study as directed by this Tribunal and not otherwise. In fact there are no universally accepted norms as to fixation of environmental flow.
In this regard we have recorded reasons in the judgment dated 14.12.2011;
"That the respondents argued that considering in the judgment dated 14.12.2010 as below: the constraints, a multi -disciplinary team of experts used various methods and arrived at range of environmental flow to be released from the project under reference. Finally, Respondent No. 1 accordingly revised the originally envisaged environmental flow of 3 cumecs as approved in EC to 15.65 cumecs subject to the conditions that this would be further reviewed once the final report of IITR is accepted. It was also a rgued that the IWMI report gives the recommendations for the entire Ganges basin not the area under reference that is only a small fraction of it apart from the fact that interpretation of term MAR has been done erroneously by the Appellants. Replies also clarified that normal flood flows are proposed to be released and hence the ecological functions of them are not likely to be altered significantly."
"It is also accepted that scientific opinion of various experts/institutions can have differing views. However, it is important to view the argument from the view point of application of principles of sustainable development and adoption of precautionary principles."
"After examining the figures and facts and the arguments made and considering the provisions made in the stipulations in the FC based on a scientific study by IITR within the available timeframe and resources coupled with flexibility option for revising the same, we are of the considered opinion that the stipulations regarding environmental fl ow certainly follows the sustainable development and precautionary principles."
If the Applicant is still aggrieved, the remedy may be an appeal but not a review of this nature.
In so far as the cost benefit analysis was concerned, the reasons were recorded as under in the judgment of 14.12.2011:
"The appellants in this context relied on the few cost-benefit statements filed by other hydropower proponents and stated that following errors are made routinely:
(1) Future benefits are not discounted to present values;
(2) Gross revenues are shown as benefits;
(3) Environment costs are not calculated in money terms and not taken into account;
(4) Decline in generation due to recession of glaciers is not taken into account; and
(5) Long term viability of the project due to low-cost solar and other alternative sources of electricity is not examined."
"Considering the nature of the project, and its likely benefits and comparatively very less loss of forest cover; probably the cost benefit analysis would not alter significa ntly even if the guidelines are followed in totality with the parameters suggested for inclusion in the cost and benefit stream".
It is argued by the Counsel for the Review Applicant that out of the five items submitted by the Applicant, this Tribunal has failed to take into consideration points raised in items 1, 2, 4 and 5.
It appears that the review applicant failed to understand the spirit of the judgment wherein it was recorded that
"Upon hearing the arguments and perusal of the records furnished, we are of the considered view that the appellants as such intend to have more cost and benefit parameters such as greenhouse gas emissions, climate change, etc. to be included while carrying out the cost benefit analysis. From the records made available, it is noted that guidelines by Respondent No. 1 are available and it is expected that the same should be used while submitting the proposal for diversion of forest land by the project proponent and this cost benefit analysis should be examined with utmost care by the agencies responsible for grant of FC."
and accordingly, item no. 2 was recorded in the conclusions, If the appellant is aggrieved by this finding, the remedy may be an appeal and not a review application of this nature.
The power of review requires to be exercised sparingly that too in exceptional circumstances when the order sought to be reviewed suffers from any error apparent on the face of record or permitting the error to stand will lead to failure of justice. Neither there is any error apparent on the face of record nor any error which if permitted will lead to failure of justice. The applicant has taken inspiration from the findings recorded by the Tribunal on the basis of voluminous record examined by it produced by the respondent No. 1. Therefore, it does not lie in the mouth of the applicant to say that there is any error apparent on the face of record for seeking review of the said findings. Further the conclusions arrived at can not be said to be contrary to the reasons recorded.
For all the reasons recorded the review application is devoid of merits and accordingly dismissed. No costs.