BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI (PRINCIPAL BENCH)
APPLICATION NO. 26/2011
IN THE MATTER OF
1. Swami Gyan Swarup Sanand
Kedar Ghat, Varanasi
2. Vimal Bhai
D 334/10 Ganesh Nagar
Pandav Nagar Complex
Delhi - 110092
3. Ramesh Kumar Mumukshu
23/674 DDA Flats
Dr. Ambedkar Nagar, Sector-3
New Delhi - 110062 .... APPLICANTS
4. Bharat Jhunjhunwala
Lakshmoli, PO Maletha, via Kirti Nagar District Tehri, Uttrakhand - 249161
1. Union of India
Ministry of Environment and Forests
Government of India, Paryavaran Bhawan, C.G.O. Complex, Lodhi Road
New Delhi - 110003
2. Dr. Arun Kumar
Head, Alternate Hydro Energy Centre
Indian Institute of Technology, Roorkee Uttarakhand - 247667
3. Indian Institute of Technology
Through the Director
Uttarakhand - 247667
4. Wildlife Institute of India, Dehradun Through the Director
Post Box No. 18, Chandrabani
Dehradun, Uttrakhand 248001
Counsel for Applicant:
Shri Bharat Jhunjhunwala, in person
Counsel for Respondent :
Ms. Neelam Rathore
Shri Ashok K. Srivastava
Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member)
Dated 17th July, 2012
This application has been filed invoking jurisdiction Under Section 14 read with Section 18 of the National Green Tribunal Act, 2010, inter-alia, seeking following reliefs :- A. "To direct MoEF to desist from relying on the impugned IITR and WII studies in implementation of 2
Forest Conservation Act and Environment Protection Act till the same is done afresh by a credible institution like National Environment Engineering Institute, Nagpur as may be directed by this Hon'ble Tribunal.
B. To direct MoEF, to ensure that the fresh study is made after consultation with various stakeholders as specified in Terms of Reference in a transparent manner. The stakeholders should include:- (1) Non-official members of National Ganga River Basin Authority;
(2) Environmentalists and activists who have been working for protection of the Ganga River; (3) Hindu religious leaders;
(4) Organisations such as Panda Panchayats that cater to the pilgrims. This may be done also downstream of Dev Prayag i.e. with pilgrims who are living downstream of Dev Prayag but are affected by building of dams upstream of Dev Prayag; and
(5) People in hill areas affected by the dams. 3
The applicants are prepared to provide a list of persons in each of above categories. C. To direct MoEF, IITR and WII to consider the critique of the present studies by IITR & WII given by the applicants in Annexure 8 to this Petition; and give speaking response to each point; and provide the applicants and opportunity to provide rejoinder to the same so that the new study can build upon the lessons learned from these studies. D. Pass any other relief that this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The Applicant it appears is aggrieved by the study conducted by the Indian Institute of Technology, Roorkee with regard to cumulative impact of hydropower dam on the Ganga river.
The scenario of facts reveal that the Hon'ble Supreme Court on 27th April, 2007 in IA No. 1413, 1414 etc. in WP (C) No. 202/1995 in the matter of T.N. Godavarman, Thirumulpad Vs. Union of India & Ors., inter-alia directed that a study with 4
regard to the cumulative impact likely to be caused by the proposed Hydropower Dam on the Ganga river should be conducted by the MoEF. In consonance with the said direction, MoEF had requested IIT, Roorkee as well as WII to conduct on the spot study with regard to the cumulative impact and submit their reports.
3. As per the directions issued both IIT, Roorkee and Wildlife Institute of India constituted separate teams comprising of very senior and scientific officers and conducted the study confining to the cumulative environmental impacts likely to be caused by various hydro-electric projects in general, and on the riverine eco system, and land as well as aquatic bio-diversity in particular.
4. The grievance of the applicants before this Tribunal is that the study, though entrusted to IIT, Roorkee, the same was conducted on individual capacity by Dr. Arun Kumar who is the head of Alternate Hydro Energy Centre, Indian Institute of Technology (IIT), Roorkee and as such the same should not be treated to be that of IIT, Roorkee. Several acts of omissions 5
and commissions said to have been committed by Dr. Arun Kumar in course of his study are enumerated in the application.
5. The applicant alleged that the report prepared by Dr. Arun Kumar is full of errors in as much as it did not deal with the parameters of water quality vis-a-vis impact thereof on hydro projects. The conclusion that hydro power projects do not have any impact on water quality is an apparent error. Several vital issues like release of environmental flows from the dams, zonation classification, figures of green house gas and many other important factors should have been properly dealt with in the reports. Mr. Bharat Jhunjhunwala Appellant No. 3, who was arguing the case in person, tried his level best to convince us that a direction should be issued to the MoEF and other authorities not to consider the report prepared by Dr. Arun Kumar as it does not reflect the realistic position and is based on erroneous assumptions and conclusions.
6. Ms. Rathore, Learned Counsel appearing for MoEF on the other hand relying upon a detailed reply filed on behalf of the Respondent No. 1 submitted that the allegations are not correct and that the report was submitted not individually by Dr. 6
Arun Kumar but by the IIT, Roorkee and that the said report along with the reports submitted by WII would be considered by the Competent Authority consisting of Experts in the field without any bias. According to Ms. Rathore, the prayer, not to consider the report submitted by IIT, Roorkee is misconceived and even otherwise cannot be entertained under the provisions of NGT Act, 2010. Therefore, it is a fit case where the original application should be dismissed in limini. A detailed reply is also filed by IIT, Roorkee, Respondent No. 3. According to the said respondents, study in question, was conducted as per the IIT, Roorkee rules, regulations and procedures, by a team of Experts who are well known in the relevant field from within and outside the institute. The study was duly approved by the Board of Governors and it was decided that Dr. Arun Kumar would be the principal investigator along with other faculty and Experts as the team members. Further, after completion of the investigation, the final presentation was made by IIT, Roorkee before Secretary, Environment and Forests and not by Dr. Arun Kumar. According to Respondent No. 3, the allegations levelled as well as the submissions made by the Applicant are highly biased 7
opinions which have no nexus with the present day scenario and have become Obsolete.
7. Dr. Arun Kumar has been impleaded as Respondent No.-2. He also filed a detailed reply strongly repudiating the averments made and allegations levelled in the application. In his affidavit, he has supported the report and stated that the same is based on scientific studies made by very qualified team of scientists. According to him the report was prepared and submitted by IIT, Roorkee in accordance with the rules and any submissions to the contrary are unfounded.
8. In course of hearing Mr. Jhunjhunwala reiterated his stand and made critical assertion with regard to the report submitted by the IIT, Roorkee. We have heard Mr. Jhunjhunwala very patiently. We considered the submissions made by him diligently. We went through the documents placed by him meticulously.
Fact remains the report prepared by IIT, Roorkee as well as the report submitted by WII have already been forwarded to the Competent Authority (MoEF) for due consideration. That apart in the meanwhile by order dated 15th June, 2012 an office 8
memorandum has been issued by the MoEF constituting an Inter Ministrial Group on issues related to Ganga river. Ms. Rathore, Learned Counsel for MoEF fairly submitted that the reports prepared by IIT, Roorkee and other agencies like WII etc. would be duly considered by the committee consisting of 14 Members of which the Member, Planning Commission is the Chairman.
9. That apart it appears that while the study was in progress an attempt was made before the Hon'ble Supreme Court in WP (C) No. 202 of 1995 (Supra), by filing an Intervention Application by Shri Bharat Jhunjhunwala, applicant no. 4 (which was registered as Intervention Application no. 3054 - 3057) with a prayer to restrain MoEF from issuing direction to IIT, Roorkee from conducting the study, instead to consider the suggestions given by the applicant. After hearing, Hon'ble Supreme Court dismissed the application filed by the present applicants observing as follows :-
"parties in person appeared."
"Prayer of the applicants in the application is for a direction to MoEF to consider the suggestions given by 9
the applicants in their two representations dated August 27, 2010 and October 15, 2010 and also to hold up the study conducted by AHEC, IIT, Roorkee. Prayer is over ambitious and cannot be granted. MoEF, if so inclined, examine suggestions made by the applicants. The applications are disposed of as above."
10. Thus, it appears that the relief sought for in this application was also before the Hon'ble Supreme Court, more or less on the same grounds, though at the relevant time the study was in progress, whereas, in the meanwhile, after completion of the study the report has been submitted. In course of hearing, it further appears that on behalf of the applicant's representations / objections to the studies have already been filed before the Competent Authorities. Fact remains the report prepared by IIT, Roorkee and WII are yet to be considered by the High Level Committee constituted on 15th June, 2012 and other authorities, and the same has not been accepted till now. In the aforesaid scenario, we are not inclined to grant any of the reliefs prayed for in the application and 10
dispose of the same with an observation that the MoEF or the Committee constituted, may examine the suggestions / objections / representations, if any, said to have been filed by the applicants, along with the other materials available while dealing with the Reports / Study conducted by the IIT, Roorkee and WII. This application accordingly stands disposed of. Parties to bear their own cost.
Dr. G.K. Pandey Justice A.S. Naidu Expert Member Acting Chairperson Dharamvir
17th July, 2012