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BEFORE THE NATIONAL GREEN TRIBUNAL
NEW DELHI,
(PRINCIPAL BENCH)
APPLICATION NO. 8 of 2012
Husain Saleh Mahmad Usman Bhai Kara S/o Shri SalehMahmad Usman Bhai Kara R/o Village Bhadreshwar, Taluka Munda District Bhuj Kutch
Gujarat-370411.
Applicant/Petitioner
Versus
1 M/s. OPG Power Gujarat Private Limited Through its Director
167-St. Mary's Road,
Alwarpet, Chennai,
Tamil Nadu-600 018.
2. Mr. Arvind Gupta
Managing Director
167-St. Mary's Road,
Alwarpet, Chennai,
Tamil Nadu-600 018.
3. Mr. Mahaveer Jain
Director and Officer In-Charge
OPG Power Pvt. Ltd.
P.O. Bhadreshwar
Taluka-Mundra, District-Kutch
Gujarat-370411.
4. Mr. Prashant Goel
Director and Officer In-Charge
OPG Power Pvt. Ltd.
P.O. Bhadreshwar
Taluka-Mundra, District-Kutch
Gujarat-370411.
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5. Mr. G.S. Bokhani
Director and Officer In-Charge
OPG Power Pvt. Ltd.
P.O. Bhadreshwar
Taluka-Mundra, District-Kutch
Gujarat-370411.
6. Union of India
Ministry of Environment & Forests
Paryavaran Bhavan, CGO Complex
Lodhi Road, New Delhi.
7. Gujarat State Level Environment Impact Assessment Authority Through the Member Secretary
Paryavaran Bhavan, Sector-10A
Gandhinagar, Gujarat-382010
8. Gujarat Pollution Control Board
Through the Member Secretary
Paryavaran Bhavan, Sector-10A
Gandhinagar, Gujarat-382010
9. State of Gujarat
Through the Principal Secretary
Forest and Environment Department
14th Block, 8th Floor, Sachivalaya
Gandinagar, Gujarat.
Respondents
Counsel for Applicant:
Mr. Raj Panjwani, Sr. Advocate
Mr. Ritwick Dutta,
Rahul Choudhary & Parul Gupta
Counsel for Respondents:
Mr. Krishnan Venugopal, Sr. Advocate alongwith Mr. Kamal Budhiraja, Mr. Mohit, Mr. Aman Gupta and Mr. Shivam Chugh for R-1 to 5
Ms. Neelam Rathore for R-6
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Ms. Hemajtika Wahi alongwith
Mr. Satyabrata Panda for R-7 to R-9
JUDGMENT
PRESENT:
Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member)
..................................................................................................................... Dated 10th May, 2012
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JUDGMENT BY THE BENCH
1. The Applicant, Shri Husain Saleh Mahmad Usman Bhai Kara, filed an application under Section 14 read with Section 26 of the National Green Tribunal (NGT) Act, 2010 drawing attention of this Tribunal to the order dated 8th February, 2012, and alleged that the said order is being violated by the Project Proponent M/s. OPG Power Gujarat Private Limited, which is carrying on construction unauthorisedly by violating the directions issued.
2. It appears that M/s. OPG Power had obtained Environmental Clearance (EC) for setting up of proposed 300 MW (2x150 MW) Coal Based Thermal Power Plant for which State Level Environment Impact Assessment Authority (SEIAA), Gujarat had accorded clearance on 11th June, 2010. The said order was assailed by the present Applicant in Appeal No. 19 of 2011(T) (NEAA Appeal No. 22/2010). 4
3. Another Appeal bearing Appeal No. 37 of 2011 was filed assailing grant of CRZ clearance for the proposed intake and outfall of Sea water for the proposed project. The said clearance was granted vide letter dated 16th September, 2011 by the Ministry of Environment and Forests (MoEF).
4. The present Applicant had also approached the Tribunal in Application No. 32 of 2011 interalia alleging violation of the provisions stipulated in Schedule 1 of the National Green Tribunal Act, (NGT) 2010 in general, and violation of Environment (Protection) Act, 1986 in particular. It was alleged that the Project Proponent violating the guidelines issued under the Forest (Conservation) Act, 1980 is continuing construction though Forest Clearance had not been granted.
5. In course of hearing, all the three Appeals by consent of parties were taken up for hearing together.
Mr. Venugopal Learned Senior Counsel interalia prayed to permit the Project Proponent to go ahead with the construction of the project during pendency of the Application filed for Forest Clearance (FC) mainly on the ground that Clause 4.4 of the Guidelines on Forest 5
(Conservation) Act, 1980 is not applicable to private Projects. Considering the facts and circumstances this Tribunal directed that the Project Proponent may go ahead with the construction in his private lands as per the Environment Clearance (EC) but then shall not claim any equity.
6. In course of arguments of the aforesaid three Appeals / Application, it was brought to the notice of this Tribunal that MoEF returned the Application filed by the Project Proponent for grant of FC. It was also brought to the notice of this Tribunal that MoEF had called upon the Project Proponent to show-cause as to why the permission granted under the CRZ Notification for the project shall not be kept in abeyance and /or cancelled.
7. On being confronted by the aforesaid changed circumstances, a submission was made by Mr. Venugopal, Learned Senior Counsel, that the Project Proponent is contemplating to change the technique of cooling system so as to avoid use of forest land and water from the sea. Consequently there may not be any necessity of either FC or permission under the CRZ Regulation.
8. Mr. Panjwani, Learned Senior Counsel for the applicant, on the other hand submitted that as the EC was 6
obtained by suppressing facts and the same should be set aside.
9. After hearing parties this Tribunal felt that as FC has not been granted and a notice has been issued to Show Cause why the permission granted under the CRZ Regulation shall not be cancelled, it would not be necessary to hear the matter on merits, more so because, in the absence of the FC and in the event the permission granted under the CRZ Regulation is withdrawn the EC granted to the project would become automatically redundant. The Project Proponent however, had an option to approach the SEIAA, Gujarat, for change of technique and under such event the MoEF shall reconsider the application. All the three cases were therefore, disposed of by judgment dated 8th February, 2012 observing as follows:-
i) "The Company shall adhere to the terms and conditions laid down in the EC granted by the SEIAA vide letter dated 11th June, 2010 for setting up of 300 MW imported / Indian Coal based Thermal Power Plant at Bhadreshwar Village.
ii) If the company proposed any deviation of their original project plan by implementing technical 7
change, they shall apply to the concerned Authorities who shall consider the same strictly in consonance with law and dispose the same as expeditiously as possible, but not later than four months.
iii) If the company intends to follow the original project technique then it shall make further applications under the Forest (Conservation) Act, 1980 which shall be dealt in its own merits and disposed of in accordance with law also within a span of two months.
iv) The company has liberty to submit his show cause before the MoEF in response to the notice dated 16th February, 2012 under the provision of the CRZ Notification, 2011. If such a show cause is filed, the same shall be disposed of by the competent Authority in accordance with the law.
10. This Application has been filed, as stated in paragraph-1 above, inter-alia alleging that the Project Proponent is violating the directions issued by our order dated 8th February, 2012 and as such suitable proceedings should be initiated against it under Section 26 of the NGT Act, 2010. According to Mr. Panjwani, in spite of the directions issued, the Appellant is going ahead with the construction thereby also flouting the 8
terms and conditions stipulated in the Environment clearance granted to the project. It is further, reiterated that the Project Proponent, was prohibited from carrying any construction / project-enabling activities, unless and until requisite prior permission and clearances are obtained. The Project Proponent flouting the conditions it is alleged, was going ahead with the construction work. The activities of the Project Proponents, it is submitted, reveal that he has scant regard to Rule of Law.
While issuing notice to the Proponent on 13th March, 2012, this Tribunal directed Learned Counsel for the MoEF, who was present in the Court to take instructions with regard to the allegations levelled in the Applicaton. To simplify and shorten the matter and for better understanding Tribunal also directed the MoEF as well as the Gujarat State Level Environment Impact Assessment Authority (SEIAA) to visit the site, conduct an inquiry and submit a report with regarded to alleged allegations of violation of the terms of EC. In consonance with the aforesaid directions a site visit report has been filed on behalf of the MoEF, after conducting local inspection through six officers. The Respondents also entered appearance and filed a detailed reply.
According to the Respondent in the meanwhile, the MoEF has been pleased to grant FC to the project. 9
Further, it is stated that the notice issued to Show Cause so far as grant of permission under CRZ Regulation is concerned, has been stayed by the Hon'ble High Court of Gujarat in Special Civil Application No.149 of 2012. Mr. Venugopal, Learned Senior Counsel, submitted that in view of the aforesaid changed circumstances as on today, the FC having been granted and the permission granted under CRZ Regulation being still continuing, by virtue of the order passed by Gujarat High Court, there is no impediment for the Project proponent to go ahead with the construction work. Under such circumstances, it is submitted that the allegations made in the Application are not tenable.
11. In reply Mr. Panjwani Learned Senior Counsel, brought to our notice the observations made is the site visit report and submitted that the Project Proponent has started construction work prior to the clearance accorded under CRZ Notification. That apart though FC was not granted the construction work was going on till a day before the visit of the Committee. Further it is reported that the Company had stopped the construction activity only from 9th April, 2012, which clearly proves violation of the direction of this Tribunal.
12. Mr. Venugopal, Learned Senior Counsel, in reply submitted that the Tribunal had earlier permitted the 10
Company to go ahead with the work if it so likes subject to condition that it shall not claim any equity. Thus there was no prohibition for discontinuing the work.
13. Heard Learned Counsel for the parties at length, perused the replies filed by the parties diligently. Also perused the contents of the site visit report prepared in accordance with the direction issued by this Tribunal, by seven responsible officers of SEIAA / SEAC, Gujarat, GPCB and MoEF. In the report they have observed as follows:-
"The company has already started construction work prior to accord of CRZ clearance. Even though the forest clearance has not been granted so far. Construction work was going on till a day before the visit of the Committee. The Company has stopped construction activity only from the yesterday i.e. 9th April, 2012.
The Company is violating conditions No.12 & 30 of the environment clearance order dated 11th June, 2010 by continuing construction work. The villagers doubted that project proponent will not follow rest of the conditions in operation phase. " 11
14. Starting construction work without obtaining FC is violation of the terms and conditions stipulated in Clause 12 and 30 of the Environment Clearance. It appears from the site visit report that construction work was in progress till a day before the visit of the Committee and it was stopped on 9th April, 2012. The report further indicates that RCC foundation work for boilers and turbines was in progress. It is alleged that a part of River Khari which belongs to the community, has been illegally occupied and enclosed within the boundary of the project land.
15. The plea of Mr. Venugopal, Learned Senior Counsel that by virtue of the interim order passed by this Tribunal the Project Proponents was continuing with the construction work without claiming equity, cannot be accepted in toto as the said interim order merged with the judgment dated 8th February, 2012. In the judgment this Tribunal directed Respondent No. 3 (Project Proponent) to adhere to the terms and conditions laid down in the EC granted by the Gujarat State Level Environment Impact Assessment Authority vide letter dated 11th June, 2012. Thus any action / construction carried out by the Project Proponent contrary to the EC more particularly condition NO. 12 and 30 thereof, ipso facto amounts to violation of the terms. That apart the FC was admittedly granted to the Project Proponent only on 26th April 2012. Thus, any 12
construction made before the said date would be hit by the terms of EC.
16. In view of the discussions made above, we direct the State Government / SEIAA, Gujarat to initiate necessary proceedings against the Project Proponent, issue Show Cause to them and on perusal of the cause shown, if satisfied that in fact the Project Proponent has violated the terms and conditions of the EC or had committed any other omission or commission, and / or encroached upon the river un-authorisedly, take such action as deemed just proper and in accordance with the law, without being prejudiced by any of the observations made by us in the preceding paragraph, which are only prima facie. The entire exercise shall be completed within a period of four months hence.
The application is disposed of accordingly.
A free copy of the order be made available to Learned Counsel for the MoEF for onward transmission. The order may be communicated to SEIAA, Gujarat at the cost of the Applicant.
Dr. G.K Pandey Justice A.S. Naidu Expert Member Acting Chairperson. Durga Malhotra
10th May, 2012