Vimal Bhai vs State of Uttrakhand & Ors

This appeal has been preferred against stage II forest clearance forest land for Alaknanda Hydro Electric Project as per letter dated 10.12.2012, based on the letter of the Ministry of Environment and Forest dated 09.11.2012. The project is for generation of 300 MW of power and involves construction of 18 m high diversion barrage across the Alaknanda river, 3 Km downstream of Badrinath town. Stage-I approval under the Forest (Conservation) Act, 1980 for diversion of forest land for the project was granted on 08.11.2011 which was challenged before this Tribunal in Appeal No. 7/2012 which was disposed of on 07.11.2012 with liberty to challenge Stage-II clearance, which is now being impugned.

According to the appellant the Forest Clearance is not called for, as proper cost benefit analysis has not been undertaken. It is not as per National Forest Policy, 2011. Earlier FC was rejected and without any change in circumstance, clearance is not justified.

The Tribunal issued notice on 31.05.2013 to the Respondents including MoEF&CC, State of Uttarakhand and the PP - GMR Energy Limited. They have filed their respective replies. Stand of the State is that necessary EC for the project was granted on 12.03.2008 and the FC is integral part of the project. Stage–I clearance was duly granted by the MoEF&CC on 09.11.2012 and Stage-II has been granted on 10.12.2012. The project is in public interest for overall development of the State and for generation of employment and availability of the electricity. The project is at strategic location, close to China border. Compensatory afforestation and deposit of NPV has been done. Stand of the MoEF&CC is that almost 50% forest land is to be returned to the Forest Department after completion of the project. No displacement of any human settlement is involved. The area is a part of disturbed zone. There will be no disturbance to the Snow Leopard or the Brown Bear. Substantial development activities in the project have already been undertaken. Forest Advisory Committee (FAC) and the Wildlife Institute of India (WII) have been consulted and issues raised in the process addressed. Cumulative assessment study was also undertaken and duly considered. The State Government Committee under the Chief Wildlife Warden, which will also include representative of WII, is to monitor the construction of the project to avoid disturbance to the wildlife. No interference with the FC is thus called for.

On 27.08.2013, the Tribunal was informed that the issue had already been dealt with by the Hon’ble Supreme Court vide judgment dated 13.08.2013 in Civil Appeal No. 6763/2013. The matter was accordingly deferred to look into the said judgment. Thereafter, though a copy of the said judgement was filed, the matter was deferred on the request of learned counsel for the appellants to await further orders of the Hon’ble Supreme Court on an application for clarification.

In above background, we have today taken the matter. Learned counsel for the appellants submitted that appellant No.1 has died and that some issue is still pending in the Hon’ble Supreme Court. None appears for the respondents.

We have considered the matter. It remains undisputed that the issue of permissibility of the project stands adjudicated upon by the Hon’ble Supreme Court vide judgement dated 13.08.2013, reported in (2014) 1 SCC 769. The said judgement also deals with the forest clearance which is part of the project. The judgement shows that the matter was first dealt with by the Uttarakhand High Court in Writ Petition (PIL) No. 137/2009 vide judgement dated 03.08.2011 and direction for public hearing was issued but on appeal of the project proponent (PP) being Civil Appeal No. 6763/2013 before the Hon’ble Supreme Court, the direction of the High Court was set aside subject to certain further directions including compliance of recommendations in the report dated 03.05.2013 by the Joint Committee. Directions were also issued to the MoEF&CC and State of Uttarakhand not to grant EC or FC in future for any hydroelectric power project in the State till further order, pending study by an expert body on environmental aspects. We further note that contempt petition against forest clearance filed by appellant No.2 herein and one Anuj Joshi was dismissed by the Hon’ble Supreme Court on 15.1.2016, (2016) 12 SCC 455.

In view of above developments after filing of the appeal before this Tribunal, the issue having been dealt with by the Hon’ble Supreme Court, nothing survives for further consideration.

The appeal will stand disposed of accordingly.