National Green Tribunal
Dr Bharat Jhunjhunwala vs Ministry Of Environment Forests ... on 16 August, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Appeal No. 21/2021
Dr. Bharat Jhunjhunwala & Anr. Appellant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 16.08.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Appellant: Mr. Ankur Sood, Advocate
Respondent: Mr. Kumar Rajesh Singh, Advocate for MoEF & CC (R - 1)
Mr. Dhruv Dewan, Advocate for M/s THDC India Limited (R - 3)
ORDER
The issue raised - validity of EC for Vishnugad-Pipalkoti Hydro- Electric Project in Uttrakhand
1. This is an Appeal under section 16 (h) of the NGT Act against Environment Clearance (EC) dated 26.08.2021 granted by MoEF&CC to the Vishnugad-Pipalkoti Hydro-Electric Project of 444 MW in an area of 141.568 ha by M/s THDC India Limited located at Village Haat, Tehsil Joshimath, District Chamoli, Uttarakhand.
2. The appellants have stated that Initially EC for the project was granted on 22.08.2007 for ten years, which was extended for three years and has been now extended upto 21.08.2021. However, the project has not 1 been operationalized and is still under construction. The project is funded by the World Bank. Out of total cost of about Rs. 3800 Crores, more than 50% of the cost has already been incurred.
3. According to the appellant, Cost Benefit Analysis (CBA) is in favour of abandoning the project. Dispensing with of public hearing is not called for nor valid as the project is not completed to the extent of 50 %, as required for such exemption. EAC has not undertaken proper evaluation of the mitigation measures. It has gone by rapid EIA, ignoring the deficiencies, particularly impacts of soil erosion, blasting, decline in water quality, loss of aesthetic values and loss of aquatic biodiversity. These impacts have not been duly evaluated nor included in the CBA. The scope of the project has changed as noted in the EAC Minutes, in comparison to the 2006 DPR, as per information shown by the following table:-
" Item 2006 DPR 2021 EAC Change
Minutes
(Annexure A-
(Annexure A-12)
13)
DIVERSION TUNNEL
Length 490 559 m (494 m +69 m
tunnel and 65 m cut
& cover)
Diameter 10 10.5 m, Circular +0.5m
Gates 10m*10m 4 m * 10.5m, +58 sqm
vertical lift fixed
wheel
Ibvert level 1228 1224m -4m
at entry
Height 15 m 24 m +9 m
Length 46 m 40 m -6 m
2
Height 6m 7.5 m +1.5 m
Top EL 1228 EL 1222.5 m -5.5
DIVERSION DAM
Length 89.3 98.85 m (NOF +9.55 m
31.85 m, OF 67 m)
SPILLING ARRANGEMENT
A. Sluices:
Nos. 4 5 +1
Design 8004 10840 m3/sec +2836 m
Flood
Size of 6.6*15 7.8m (W) * 16 m (H) +25.8
sluice
B. 10 Diameter 10.5 (), +0.5 m
Diversion Circular
Cum
Spillway
Tunnel
Length 490 100 m -390 m
Design 1074 1578 m3/sec +504
Discharge
Gate 2+1, 4.1 m * 10 2+1 no., 4 m* 10.5 + 1 sqm
m (Vertical lift fixed
(4.1x10>4x10.5)
wheel gate)
DESILTING
CHAMBER
Size 350*16m*20.6 390m (L) * 16 m (W) + 17240
m * 21.25 m (H)
Gates 2.5*2.85 3 Nos. 1.8 m*2.12 -3.309
m (Vertical lift slide
gate)
HEAD
RACE
TUNNEL
Diameter 8.8 horse shoe 8.8 m Circular Shape change
Velocity 3.56 3.76 m/sec +0.2
3
Bed slope 1.208 1:121 (upstream of -8.087
(average) Maina River 1:321)
Downstream of
Maina River)
UPSTREAM
SURGESHA
FT
Height (from 130 154 m +24 m
HRT invert)
Top EL 1305 1309 m +4 m
Orifice level 1185 1165 m -20m
Tunnel 1175 EL 1155 m -20m
invert
Maximum 1304 1307.42m +3.42m
surge level
PRESSURE
SHAFT
Length of 351/36.7 466.4 m/51m -0.41893466
each PS
POWER
HOUSE
Size of P/H 127*20.3*50 146m*20.3m*48m +13357.4
cavern
Size of 112*16*24.5 140.3m*15m*25.5 +9760.75
transformer m
cavern
Service bay 1041 EL 1036m -5
level
D/S SURGE
TANK
Size 120*12*27 150m (L)*13m (W) * +13770
27 m (H)
Minimum 1026.5 1022.37 m -4.13
surge level
TAIL RACE
TUNNEL
a) Size 8.8 9.1 m (), (Circular) +0.3
4
d) Min. 1027.2 1028.2 m (with 10% +1
TWL load)
e) TRT 1025 EL 1020.6 (at -4.4
invert level Outlet) crest level of
weir at outlet is
1027 m.
SWITCHYA
RD
e) No. of 8 7 bays -1
bays in the
switchyard
d) Size of 40*60m 40m*84m +960 "
Potyard
4. The appellants have further submitted that the Project has also undergone design review as per THDC progress report of July 2021. The appellant has also presented following tables to show that only 10% of the total constructions have been done and not 50% as claimed: Table No. 1
" S. Work Present status of Analysis Percent No. the project as per completed CEA July 2021 report (Annexure A-16)
1. De-silting 3 De-silting - 40.0 chambers Chambers benching 40% completed
2. HRT-TBM Heading excavation Length of Head 5.5 commissioned of HRT by DBM has Race Tunnel is but no been completed 739 13.4 km. of this progress out of 960m. TBM (1) 739 m DBM;
has been and nil HRT has
commissioned. been completed
During operation of as TBM is
TBM in the RBM hampered. Thus
zone, big boulders 739/13400+
have been 5.5% is complete
encountered, which
has been hampered
TBM operation. To
5
overcome this
problem two
approach adits are
being constructed to
reach the cutter
head.
3. Tail Race In TRT, heading Although this is 14.4
Tunnel excavation 443 m only excavation,
out of 3070m yet giving benefit
completed of doubt we may
consider
443/3070=14.4%
complete.
4. Barrage - As per our 0.0
information zero
work is done.
Silence in CEA
Progress report
confirms this.
5. Electro- Supply works of Rs. The cost of
mechanical 167.60 Crore has Electro-
works been completed. mechanical
works was
Total project cost is
473.64 Crores out
4397 Crore.
of project cost of
2031.64 Crore as
per TEC
(Annexure A-17)
Pro-rata the cost
of Electro-
mechanical
works will be
1024 crore at
project cost of
4397 Crore of this
167.60 Crore of
16.3% is
completed.
6. Average 15.2 "
Table No. 2
" EAC minutes 29th July THDC progress report CEA Report July 2020 July 2021 2021 6 Annexure A-6) (Annexure A-14 (Annexure A-16) Physical progress of major Total expenditure is Vishnugad Pipalkoti works including Financial 2271.35 Cr.
progress as on 30th June,
2020 is as under: THDC 21.08.2008
4x111-444 MW Broad
25% of Civil & Hydro
Mechanical works features Dam - 65m
completed. High 89.3 m long,
28% of Electro concrete gravity HRT
Mechanical works 13.4 Km, 8.8 dia Horse
completed. shoe shape P. House
Overall investment is Rs. Underground 124m X
1971.95 Cr. 20.3m x 50m Turbine
Francis SWYD -
13.8/420 KV Cost :
Original 2491.58 "
Latest: 4397.8
Procedural History
5. The matter was first considered on 08.10.2021. Considering the contentions of the appellants, the Tribunal issued notice to MoEF&CC and the Project Proponent (PP) who filed their respective response. The appellants have filed rejoinder and also additional affidavit annexing their suggestions for further mitigation measures. In the light of rival stands, we proceed to determine the issue of validity of EC. Stand of MoEF&CC
6. The stand of MoEF&CC is that the proposal was considered by the EAC as a fresh proposal with fresh data about environmental parameters, project profile etc. mentioned in the REIA alongwith the data in the original EIA/EMP report and the salient features of the project. EAC examined all aspects including compliance of environmental safeguards, conditions of the earlier EC, change in scope of the project, need of repeat public hearing, existing environmental conditions and all possible environmental concerns in a holistic manner. Suitable safeguards and measures were suggested 7 while recommending the project for grant of de-novo Environmental Clearance. Fresh evaluation was conducted by EAC in its 15th meeting held on 27.07.2021. ToR's covered the salient features of the project. Data relating to environmental aspects has been noted along with the mitigation measures and the Environmental Management Plan to be implemented by Forest Department, PP and the Contractor. There are also provisions for Fish Management Plan, e-flow and other specific and general conditions. Standard EC conditions for River Valley and Hydroelectric projects have also been incorporated. Further, there is a note of discussion in the meeting of EAC held on 28.10.2021 and 25.11.2021 to consider the observation of the Tribunal dated 08.10.2021. Fresh EMP involves Capital Cost of Rs. 1291.03 lakhs.
Stand of the PP
7. The PP has submitted that delay in completion of the project is not attributable to it. Reasons for delay include proceedings for Forest Clearance and seeking EC de-novo. Fresh EC has been granted on 26.08.2021 on the recommendations of the EAC. The PP submitted Draft REIA report prepared by M/s WAPCOS. In the said report, Cost Benefit Ratio has been presented. There is no requirement of fresh EIA or public consultation as scope of the project has not undergone any major change. Only certain components were optimized in the light of site requirement without changing basic design and main parameters. There is no change in
(i) the purpose and installed capacity of the project;
(ii) Height and Top elevation of the Dam;
(iii) Storage capacities and submergence area of the project;
(iv) Hydrology of the project;
8
(v) Peak Maximum Flood (PMF);
(vi) Design discharge of the project area is same as stipulated in
the DPR.
(vii) The project has been implemented to the extent of 53.05% justifying exemption for public hearing as per applicable norms.
8. MoEF&CC accorded ToR on 02.03.2021 for preparation of EIA/ EMP based on one-season fresh data. Additional conditions have been imposed in light of changed circumstances to take care of potential adverse impact such as sedimentation, fugitive emissions, blasting operations, pollution due to increased vehicular movement etc. The PP has explained that there are no shortcomings in the REIA which considers the impact of soil erosion, blasting, aquatic bio-diversity, water quality, loss of aesthetic values, presence of RET Species.
9. The PP has undertaken measures which include installation of watch towers, providing logistic assistance to Forest Department for monitoring of Nanda Devi Bio-sphere Reserve (NDBR), Joshimath and Compensatory Afforestation and other works. There is no potential for flooding on account of the project. The riverbed level near the project has not risen. The deposited muck around coffer dam has also been cleared. Mitigation measures also cover slope stabilization measures such as construction of a diversion tunnel, trail race tunnel area etc. Additional affidavit and rejoinder of the Appellants
10. The appellants have filed an additional affidavit on 30.03.2022 along with a copy of representation dated 10.11.2021 made to the EAC suggesting further measures for reduction of environmental and social 9 impact of the project. The appellant has also filed rejoinder to the reply of MoEF&CC and the PP reiterating the stand that the project has not been completed to the extent of 50% and thus, public hearing could not be exempted. It is further reiterated that the project should have been appraised as a fresh proposal. Entire process of scoping, public consultation and appraisal should have been undertaken afresh.
11. We have heard learned Counsel for the parties and considered the rival submissions.
Consideration of rival contentions and finding
12. On due consideration, we find that EC dated 26.08.2021 by the MoEF&CC for the project is not liable to be interfered except for laying down additional safeguards and conditions in execution of the project.
13. As already noted, the initial EC was granted on 22.08.2007. Validity of the EC was for 10 years which was further extended for three years. The project is crucial for generation of electricity in remote areas. More than 50% project has been executed. More than Rs.2000 crores of public money spent. Delay in completing the project has been explained. Thus, there is no illegality in exempting public consultation. Fresh appraisal has been conducted with the help of Rapid EIA and presentations of the PP. Significant environmental issues of soil erosions, blasting, water quality, aesthetic values and loss of aquatic biodiversity have been addressed. Fresh EC has been granted after assessment of adverse impacts due to change in the scope of work, mitigation measures proposed by the PP in the EMP laying down appropriate conditions for the EC. There are provisions in the EMP for Disaster Management Measures, strengthening of impediments and other forcible impacts on fragile Himalayan 10 Geomorphology. Concern of obstructing the movement of fisheries which may adversely affect the local communities has also been taken into account. Impact on habitations upstream and downstream areas by flooding, landslides etc. has also been considered. After order of this Tribunal, there have been further deliberations by the EAC in light of observations of this Tribunal, on consideration of concerns raised by the appellants. EAC found that environmental impacts of the Project have been minimized by the conditions laid down in the EC and enhancement of capital cost of the EMP to Rs. 1291.03 lakhs. It may thus be difficult to hold that grant of EC is without considering the impact on environment.
14. As noted earlier and shown by the response of the MoEF&CC and PP, there has been a fresh appraisal by the EAC based on REIA, exempting public consultation in view of the fact that more than 50 % of the cost of the project had already been initiated. More than Rs. 2000 crores have been invested in the project which has been executed beyond 50%. The EAC has addressed the issues of environmental impacts including soil erosion, declining water quality, loss of aesthetic value, loss of aquatic biodiversity and impact of blasting and made detailed provisions to offset the adverse impact. It is not necessary to reproduce all the measures envisaged in executing the project which are provided in detail in the REIA. There is no procedural illegality in EC dated 26.08.2021, subject to conditions laid down therein. The project is funded by the World Bank.
15. However, strenuous monitoring mechanism is required to be provided especially for areas prone to landslides and to prevent damage to the dam and other infrastructure.
11
16. There is also need to maintain e-flow in accordance with the norms notified by Central Government1 and directions of the Tribunal dated 25.9.2019 read with further orders dated 3.12.2019 and 07.09.2020 in O.A. No. 425/2019, Vijay Kumar vs. State of Himachal Pradesh. Relevant extracts from the said orders are as follows:-
Order dated 3.12.2019 "4. The recommendations mentioned in the above report (para 5 quoted above) may be duly complied.
5. As already observed in the order dated 25.09.2019, maintaining minimum flow is necessary for the riverine ecology and such requirement cannot be dispensed with.
The SPCB may ensure compliance of such mandate not only for all the units set up after 09.09.2005 when such regime was introduced prospectively, but also to pre- existing units, for future. The order of this Tribunal does not debar such a course. It merely records statement of Counsel for the applicant that the regime is prospective. Once it is held that such flow is necessary for maintaining riverine ecology, there cannot be exemption to any hydroelectric project irrespective the date of setting up for all times to come. All that can be done for the units already set up is not taking any action for the past and putting them to due notice for compliance from a future date. Since it is stated that an appeal i.e. Civil Appeal No. 1657/2018, Bharat Jhunjhunwala vs Pushp Saini & Ors. is pending before the Hon'ble Supreme Court, the present order will be subject to any further order which may be passed in the said appeal.
6. We are also of the view that similar course of action needs to be adopted with regard to hydroelectric projects in other States, including Uttarakhand, Sikkim, Arunachal Pradesh, West Bengal (North Region), Assam and Jammu & Kashmir."
Recommendations referred to above have been quoted in earlier para as follows:
"It is submitted that though now Board has issued directions for release of 15 % water to aforementioned 5 non- complying old projects (i.e. BBMB-Pandoh, Shanan Power House, Chamera-I NUIPC, Chamba, Chamera-H-NHPC, Chamba, Baira Siul Chamba) however these old projects have claimed that they are exempted by the State Govt. decision that 1 Notification dated 09.10.2018 issued by Ministry of Water Resources, River Development and Ganga Rejuvenation (NMCG) 12 notification dated 9-9-2005 has prospective effect and such decision was further upheld by this Hon'ble Tribunal vide order dated 20-11-2014. Moreover, they have also intimated that issue of 15% release of water by all HEPs is sub judice in a Civil Appeal No. 1657/2018 titled Bharat Jhunjhunwala vs Pushp Saini & Ors. before the Hon'ble Supreme Court of India. Therefore, it is humbly prayed that the afore-cited order dated 20-11-2014 may be relooked into or modified keeping in view the situation mentioned above, so that release of 15% water from old projects could also be ensured.
6. It is submitted that the State Board has issued directions to 21 non-complying HEPs less than 25 MW to adopt the mechanism recommended by Joint Committee for release of 15% water from the 1 IP. so that it could be monitored by the State Pollution Control Board. In this regard some of the projects represented that though they are releasing 15% water from HEN however, they require three months time for installation of necessary devices for measurement of 15% flow. Hence it is humbly prayed that three months time may kindly be granted to ensure implementation of recommendations of the Committee for installation of necessary devices for monitoring/measurement of 15% flow of water from HEPs."
17. Further, we find it necessary to lay down additional conditions for grant of EC. Capital cost of EMP will stand increased to 10% of the total project cost. There will be six-member Monitoring Cell to oversee execution of mitigation measures to prevent damage to the dam, the infrastructure and the habitation upstream and downstream the dam. It will be headed by the Chief Secretary, Uttarakhand, other Members being nominees of State Disaster Management Authority, MoEF&CC having expertise in dealing with of River Valley Projects, preferably belonging to Uttarakhand, NMCG, G.B. Pant National Institute of Himalayan Environment, Almora, State PCB and Director of Coldwater Fisheries Research, ICAR, Bhimtal, District Nainital, Uttarakhand. The Committee can coopt any other expert/organisation as may be found necessary. It can conduct proceedings on line or otherwise. It may initially meet within one month to take stock of the situation and plan further action and thereafter, it may meet at such intervals as may be decided but not beyond three months. 13 The Monitoring Committee may consider any suggestions from any stake holder, including the appellants and consider fresh measures to ensure compliance of EC conditions and additional conditions laid down by this order and also such other conditions found necessary for mitigation of adverse measures in the course of the project. Its minutes may be placed on the website of the PP.
The appeal is disposed of accordingly.
A copy of this order be forwarded to the Chief Secretary, Uttarakhand, State Disaster Management Authority, MoEF&CC, NMCG, G.B. Pant National Institute of Himalayan Environment, Almora, State PCB and Director, Cold Water Fisheries, ICAR by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM August 16, 2022 Appeal No. 21/2021 SN 14