National Green Tribunal
Tularam Gogoi vs Union Of India Through Secretary ... on 11 October, 2019
Bench: Adarsh Kumar Goel, K. Ramakrishnan
Item No. 09 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Appeal No. 09/2019 (EZ)
(I.A. No. 44/2019 & I.A. No. 45/2019)
Tularam Gogoi Appellant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 11.10.2019
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P WANGDI, JUDICIAL MEMBER
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Appellant (s): Mr. Ritwick Dutta and Ms. Meera Gopal,
Advocates
ORDER
1. This appeal has been preferred against a communication of the Ministry of Environment, Forest and Climate Change (MoEF&CC) dated 13.06.2019 passed in compliance of the order of this Tribunal dated 16.10.2017 approving recommendations of an Expert Committee constituted in pursuance of the order of this Tribunal. The appellant has wrongly described the said communication as an order granting Environmental Clearance (EC) to maintain appeal under Section 16(h) of the NGT Act, 2010.
2. Since the present matter is an offshoot of earlier proceedings, brief background may be mentioned. As noted in the order of this Tribunal dated 31.07.2019 in the earlier round of litigation, to which the appellant was a party, Subansiri Lower Hydro Electric Project 1 (SLHEP) has been set up by the National Hydroelectric Power Corporation Limited (NHPC) over the river Subansiri at Assam- Arunachal Pradesh border to generate 2000 MW of power. Environment Clearance (EC) for the project was given by the MoEF&CC in the year 2003. The EC was subject to certain conditions, including the ecological flow downstream of the river Subansiri.
3. The NHPC got a study conducted with regard to the downstream impact of the project and other issues by an Expert Group (EG) on 27.05.2008. Report was submitted by the EG in the year 2011. A Joint Steering Committee also gave a report on certain issues in July, 2012. The same were challenged before the Hon'ble Supreme Court but the Writ Petition was dismissed as withdrawn. Thereafter, an application was filed before the National Green Tribunal, Eastern Bench on 06.09.2013 by one Aabhijeet Sharma being O.A. No. 346/2013 (EZ). The appellant later filed another O.A. being O.A. No. 109/2017 (EZ) against the findings in the said reports. On 13.01.2015, the Ministry of Power appointed a Project Oversight Committee (POC) to examine various aspects of the project. The POC gave report which led to certain changes in the operation of the project.
4. The above two applications were considered and dealt with vide judgment dated 16.10.2017 of the Eastern Bench of the Tribunal. The Tribunal noted that neither the project nor the EC were under challenge. Only challenge was to the safety and downstream impact 2 in the course of operation of the project.1 The applicant suggested alternative design. Members of POC had given differing views. Having regard to the sensitive location and the precautionary and the sustainable development principles, the Tribunal directed the MoEF&CC to constitute a Committee of three Expert Members to give their opinion with regard to the Terms of Reference (ToR) for which Project Oversight Committee was earlier constituted on 13.01.2015. The Committee was to submit its report to the MoEF&CC without being influenced by the opinions expressed by the earlier Committees or the observations of the Tribunal in the body of the said judgement.2 The MoEF&CC was then to refer the said report for Stage
- IV Appraisal by the Expert Appraisal Committee (EAC) under the EIA Notification, 2006. EIA was thereafter to be completed within sixty days and placed before the Competent Authority for final decision. Needless to say that observation for Stage-IV appraisal by EAC and thereafter EIA referred to the situation where the Expert Committee accepted the alternative design which situation did not arise. The Expert Committee has reiterated, after review, the same design which recommendation has been accepted by way of impugned communication, wrongly assumed by the appellant to be EC to maintain this appeal which is otherwise not maintainable. All the grounds of appeal are based only on that assumption. This position will be clear from subsequent discussion. 1 57. At the outset, it may be observed that in the original Application, the Applicant has not challenged the construction of the Hydro Electric Project or the dam or the EC granted by the MOEF per se but has expressed his anxiety with regard to the safety and design of the dam, its downstream effects on the ecology, the lives of the riparian tribal people residing in the downstream areas for generations and destruction of the Gangetic Dolphins which is a declared as a National Aquatic Animal and their possible extinction. We may deal with each of the questions and the rival contentions of the parties on those in seriatim as shall follow. 2 147(viii) While considering the TOR, the Committee shall not be influenced by any of the opinions expressed by the earlier Committees. We also make it abundantly clear that the remarks and observations made in the body of the judgement shall not be construed as expressions of our views on the merits of the case. The Committee shall objectively consider all the aspects, both technical and factual, and arrive at an independent opinion. 3
5. In compliance of order of this Tribunal dated 16.10.2017, an Expert Committee was constituted by the MoEF&CC on 27.11.2017 as follows:-
"1. Dr. Prabhas Pande, Engineer in Geology
2. Dr. I.D. Gupta, Seismologist
3. Shri P.M. Scott, Hydrologist (from North-East) Dr. S. Kerketta, Director, IA.I (looking after River Valley Projects) from MoEF&CC, New Delhi shall be the Convener of the above Committee.
Terms of Reference (ToR) of the Committee
(i) Review of Safety aspect of the Dam in line with the recommendations made by the Expert Group and Technical Expert Committee.
(ii) Review of downstream Impact as recommended by the Expert Group of Assam and Technical Expert Committee constituted by the erstwhile Planning Commission, now NITI Ayog.
(iii) The Committee shall finalize its report within a period of three months from the date of issue of this order.
(iv) The Committee shall convene its meeting as soon as possible to address the issues and consider early resumption of work on the project.
(v) The Committee shall visit the project site and its vicinity, hold meetings with both the constituents groups of POC i.e. the expert group of Assam and the expert group from Govt. of India and also hold similar meetings with experts of NHPC and the applicants or their representatives either separately with each of the groups or jointly with all.
(vi) The Committee shall technically examine the reports submitted by various Committees including the ones submitted by both the groups of the POC.
(vii) The Committee shall also technically examine the alternative proposal submitted by the applicants for its feasibility. The Applicants and /or his experts may be allowed to make presentation of their proposal. The committee may seek assistance of independent expert (National or International) on Hydel project, if required.
(viii) The Committee shall be at liberty to obtain views of either National or International experts or both on the subject involving the Terms of Reference.
The Committee shall submit its report within three months of its constitution."
6. The appellant and one Abhijeet Sharma challenged the constitution of the Expert Committee which was finally negatived by this Tribunal 4 vide order dated 31.07.2019. The Tribunal noted the additional Affidavit dated 20.05.2019 filed by the MoEF&CC to the effect that the report of the Committee dated 23.03.2019 was placed before the EAC which was approved by the impugned letter. The observations of the Tribunal are :
"During the hearing, learned counsel for MoEF&CC has handed over copy of a letter dated 20.06.2019 to the effect that recommendations of EAC dated 23.04.2019 was duly approved by the Competent Authority and vide a letter dated 13.06.2019, NHPC was intimated of laying down the conditions to be observed in the course of the project as follows :-
"(i) The Lower Subansiri HEP is located in the Outer Himalaya, which is composed of the youngest group of rocks lying between the Main Boundary thrust in the north and the Himalayan Frontal thrust in the south. It is to mention that several major hydroelectric projects like the Bhakhra dam, Pong dam, Ranjit Sagar dam, etc. have been built in similar geological and seismotectonic environments of this Himalayan segment and are in successful operation for decades. So, the location of the Lower Subansiri HEP is considered acceptable.
(ii) The foundation grade rock at the Lower Subansiri HEP dam site consists of relatively low strength sandstone of Subansiri Formation, which is free from any active tectonic discontinuity. The provision of several treatment measures has made the foundation stratum adequately competent to withstand the load of the dam even under conditions of extreme dynamic loading.
(iii) The studies carried out in the thickly forested lower Subansiri HEP reservoir indicate that the area is free from any major active landslide problem and no significant slope instability condition exists in the immediate vicinity of the dam.
(iv) The dam abutments have been excavated in massive to moderately jointed rock mass occurring mostly under a dry condition. Provision of several corrective measures like deep cable anchors, concrete cladding, etc. has further improved the stability of abutment slopes even under expected seismic loading.
(v) The largest magnitude earthquakes in the Lower Subansiri HEP area are inferred to occur either along the Main Himalayan thrust (MHT) between the MBT and MCT or in the lower crust at depths greater than 20 km and 5 not along the MHT south of the MBT at very shallow depths. Thus, the closest distance of Lower Subansiri HEP site to the fault rupture plane of M8.o+ earthquakes is not expected to be less than 15-20 km.
(vi) Scientifically plausible Maximum Credible Earthquake (MCE) scenarios for estimation of design ground motion at Lower Subansiri HEP site may be taken as magnitudes of
8.o and 8.5 at the closest distances to fault rupture of 15 km and 20 km, respectively. These scenarios may result in Peak Ground Acceleration (PGA) exceeding 0.5g for higher confidence level (say 84th percentile level).
(vii) The PGA of 0.38g is the mean value (50th percentile level) for M7.5 earthquakes at the closest distance of 10-4 km, because the necessary conservatism has been built into the generalized and broad response spectrum shape used. Though this is an old methodology, the combination of PGA of 0.38g and the conservative spectral shape of the Lower Subansiri HEP is effectively equivalent to the ground motion with much higher PGA in combination with the realistic site-specific spectral shapes. The severity of design ground motion is characterized by the PGA and the spectral shape together, rather than PGA alone.
(viii) Design accelerogram for detailed dynamic response analysis of Lower Subansiri HEP dam has been generated to be compatible with the generalized and conservative response spectrum shape; so that the amplitudes of ground motion at all the frequencies are represented appropriately. The PGA, being associated with very high frequencies of 2:50 Hz, is not effective in controlling the response of the dam with much lower natural frequencies. Due to conservative response spectrum shape in the vicinity of the natural frequency of Lower Subansiri HEP dam, even the lower PGA of 0.38g results in the ground motion equivalent to PGA exceeding 0.5g with a site-specific spectral shape.
(ix) The design of Lower Subansiri HEP dam was arrived at and finalized by the NHPC using progressively advanced methods of analysis, as per the standard International practice (ICOLD, 2016). The initial design based on simple pseudo-static stability analysis was finalized using Chopra's simplified method for dynamic stress estimation. Detailed dynamic response analysis was subsequently got done through CWC based on time history solution using FEM analysis for DBE ground motion with PGA of 0.19g and MCE ground motion with PGA of 0.38g as well as 0.5g. The stresses obtained from these studies have been found to be well within the permissible limits for the design strength of the concrete of Lower Subansiri HEP dam.
(x) In view of the highly random and uncertain nature of earthquake events and the resulting ground motion at a site, it is impossible to define an absolute upper limit for the design motion for Lower Subansiri HEP site. The design philosophy adopted for important dams is to minimize the seismic risk to an extremely low level, which could be considered much below the risk level due to 6 prevalent other natural and anthropogenic hazards. In this regard, the seismic design of Lower Subansiri HEP dam can be considered safe with a high degree of confidence.
(xi) The alternative dam design proposal submitted by the applicant for Lower Subansiri HEP has been examined in detail and it has not been found viable on techno- economic grounds.
(xii) The downstream issues such as maintenance of continuous minimum flow for sustenance of flora and fauna, flood control and flood forecasting mechanism, sediment management, protection of Subansiri banks, provision of social security to the riparian population, dam break analysis, etc. have taken care off as per the recommendations of various committees.
(xiii) The present Committee, after reviewing reports of various other expert groups related with issues of foundation competency, slope stability, seismotectonics - seismic design parameters, dam design and the downstream impacts of the project, is of the opinion that the Subansiri Lower HEP has been designed for expected extreme conditions and all the concerns have been adequately addressed to the extent practically feasible.
(xiv) The construction at the Lower Subansiri HEP was stalled in December 2011. In the period of over seven years, the exposed rock mass and the unfinished works are getting deteriorated gradually due to the natural processes of weathering and degeneration. Any further delay in resuming the construction activity is bound to have irretrievable and irreversible deleterious effect on the project. It is, therefore, considered prudent to resume the construction work of the Lower Subansiri HEP, at the earliest.
(xv) The Eastern Himalaya holds enormous hydropower potential, the harnessing of which can usher in rapid overall growth in the North East India, in particular. The commissioning of Subansiri Lower HEP can, not only prove to be a boon for the people of the region, but also open the gates for accelerated development of water resources projects in the entire Brahmaputra basin."
7. The Tribunal noted the stand of the NHPC as follows:
"9. The cost of the project as assessed in December, 2002 was Rs. 6285.33 Crores. Due to delay, the cost has already gone to Rs. 18,000/- Crores. A sum of Rs. 9610 has already been invested. 50% of the work has been completed till December, 2011. Each day delay was causing loss of Rs. 10 Crores. The project has been duly cleared by all the statutory authorities and is for flood moderation and electricity generation which is to promote public interest. The delay has resulted in huge arbitration cases against the NHPC.7
The project will benefit the States of Assam and Arunachal Pradesh by way of free power."
8. The Tribunal further noted:
"14....The applicant was invited but never attended the meetings to delay the project.''
9. It is, thus clear from the above that EC was granted as far back as in 2003 which was never challenged. The appellant herein approached the Tribunal in the year 2017 by which time substantial work had been undertaken and expert Committees had found the project to be environmentally sustainable. Only issue before the Tribunal was compliance of conditions of EC. By way of precaution, the Tribunal directed constitution of an Expert Committee which could also consider design suggested by the appellant. Three Member Expert Committee was to visit the project site, hold meeting with the constituent groups of POC, the experts of the NHPC and the applicants or his nominee and then examine the reports of the various Committees and alternative proposal of the applicant. The Committee was to act on the material already available and furnish a report within three months and the MoEF&CC was thereafter to complete EIA within sixty days. The Tribunal had not expressed any opinion on merits nor rejected the earlier reports. Exercise was by way of precaution since the consideration that the project was in highly seismic zone -V, environmental issues were required to be examined keeping in view the attendant sensitivity of the matter instead of there being any rigidity to get only one point of view accepted.EC granted was not set aside.
8
10. Elaborate fresh exercise has been undertaken in consonance with the directions of this Tribunal. The Tribunal in order dated 31.07.2019 found:
"23. It is not the case of the applicant that any of the experts have any pecuniary interest or personal interest. Pre-disposition which may disable a person from going into the merits may also be bias but no such pre-disposition has been shown. The plea of the applicant is farfetched. Moreover, the present Committee has only recommendatory role. There is safeguard of further evaluation by experts. The project is to advance public interest.
24. We have not found any material on record justifying the plea of bias. The EAC has conducted the appraisal. The Competent Authority has agreed with the same. Mere association of organizations with the project in professional capacity is not enough to hold that any Expert who worked in such association will have an institutional bias."
11. The present appeal challenges the impugned letter whereby the Expert Appraisal Committee (EAC) accepted the report of the Expert Committee which dealt with the concerns raised by the appellant in pursuance of directions of this Tribunal in the order dated 16.10.2017. The plea of the appellant in questioning the impugned letter is that detailed scrutiny of the project has not been conducted and fresh public consultation has not been held which is the procedure for EC. This assumes that the impugned letter is EC while it is merely a communication declining to consider alternative design. EC was granted in 2003 which has never been questioned.
12. The appeal is based on misconceived assumption of the scope of action to be taken in pursuance of order of this Tribunal dated 16.10.2017. As already noted, the Environmental Clearance (EC) in the present case granted as far back as in the year 2003, subject to certain conditions. Study was conducted with regard to such conditions by an Expert group in the year 2008. A report was given in the year 2011 and a further report by another Committee was given 9 in July 2012 which was subject matter of challenge before this Tribunal. The Tribunal noted that neither the project nor EC were under challenge.3Only challenge was to the safety and downstream impact in course of operation of the project. The applicant had suggested an alternative design. The Tribunal directed constitution of an Expert Committee to examine such alternative design. The Expert Committee did not find the alternative design to be acceptable. The applicant did not even appear before it, inspite of opportunity. The views of the Expert Committee were thereafter duly considered by the EAC comprising experts. The said EAC duly approved the views of the Expert Committee. Thus, it is not a case of grant of EC as such which grant has already assumed finality.
13. Even though above position is apparent from the record, it is not necessary for us to go into the merits of the impugned letter in view of the fact that the appeal itself, even if maintainable, is barred by limitation and no ground is made out for condonation of delay. The impugned letter is dated 13.06.2019. It is not a case of grant of EC. As already noted, EC was granted in the year 2003 which was never subject matter of any challenge. What was challenged was the compliance of conditions on the ground that an alternative design could be considered. The project had already been completed to the extent of 50% till December 2011. The cost of the project has gone up from Rs. 6285.33 crore to Rs. 18,000/- crores. Amount of Rs. 9610 crores had already been invested by the industry. Each day delay is causing loss of Rs. 10 crores. The passing of order dated 13.06.2019 was mentioned during the hearing on 25.07.2019 as stated by the appellant himself. Plea that the limitation will commence from 3 Para 57 10 08.08.2019 when the appellant claims to have received a copy of the letter cannot be accepted. Even if the limitation commences from 08.08.2019, the appellant being already in the know of all the facts and in view of urgency of the matter and larger public interest, the appellant could have preferred the appeal within the prescribed limitation from the said date. In fact, maintainability of appeal itself is doubtful since the impugned order is not EC. The affidavit of the appellant is dated 21.08.2019 while the appeal has been filed on 12.09.2019 after three weeks which itself shows lack of bonafides. Moreover, the affidavit is in support of appeal which the appellant is supposed to have read while factually the appeal has been prepared much later, which shows that the affidavit is mechanical without reading the appeal. Though the Tribunal may normally take liberal view in condoning the delay if there is no harm to public interest, in the present case where huge investment of public money is held up without any tangible reason, there being no issue of public interest after multiple Expert Committees have examined technical angles, any further delay adversely affects the structural safety of the project as observed by the Expert Committees. The project is for generation of electricity and to control of flood to advance the public interest. The appellant is seeking to raise issue of public interest without there being any such issue. The impugned letter inter alia states:
"(xiv) The construction at the Lower Subansiri HEP was stalled in December 2011. In the period of over seven years, the exposed rock mass and the unfinished works are getting deteriorated gradually due to the natural processes of weathering and degeneration. Any further delay in resuming the construction activity is bound to have irretrievable and irreversible deleterious effect on the project. It is, therefore, considered prudent to resume the construction work of the Lower Subansiri HEP, at the earliest.
(xv) The Eastern Himalaya holds enormous hydropower 11 potential, the harnessing of which can usher in rapid overall growth in the North East India, in particular.
The commissioning of Subansiri Lower HEP can, not only prove to be a boon for the people of the region, but also open the gates for accelerated development of water resources projects in the entire Brahmaputra basin."
14. Delay can be condoned on a sufficient cause been shown. The court adopts justice oriented and not hyper technical approach to advance access to judicial remedy but the court has to balance its approach against mechanical liberal approach where doing so may result in injustice and may be against public interest. Whether or not a case is made out for condonation of delay is to be decided having regards to facts and circumstances of a case. There can be no rigid approach. While even a long delay may at times be liable to be condoned, if the fact-situation so warrants even short delay may not be condoned. Legal position has been summed up, inter-alia, in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors.4 as follows:
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1.(i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.5.(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.7(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for the former doctrine of prejudice is 4 (2013) 12 SCC 649.
12 attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9 (ix) the conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.12(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.
32. Plea of lack of knowledge in the present case really lacks bona fide. The Division Bench of the High Court has failed to keep itself alive to the concept of exercise of judicial discretion that is governed by rules of reason and justice. It should have kept itself alive to the following passage from N. Balakrishnan([1998] 7 SCC 123):
"11..... The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the 13 general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
We have painfully re-stated the same."
15. Applying the above principles to the present case, we are not inclined to condone the delay for following reasons:
a) Project involves supply of electricity, control downstream flooding, apart from other benefits to advance public interest
b) EC was sanctioned as far back in 2003 which attained finality.
c) Vide order dated 16.10.2017, by way of precaution, this Tribunal constituted an Expert Committee to consider alternative design suggested by the appellant, but the appellant did not cooperate with the committee.
d) Even on a relook, credible Expert Committee has found no deficiencies, which finding has been accepted by the EAC. Rather, the committee has found prompt execution necessary.
e) The Appellant approached the Tribunal 14 years (in the year 2017) after grant of EC (in the year 2003) and failed to cooperate with the Expert Committee appointed under the orders of this Tribunal. Thus, conduct of the appellant lacks bonafides which delayed the project by further 2 years causing huge loss to public. As already noted above, this led to the cost escalation on account of delay from Rs. 6285.33 crore to Rs.18, 000 crore and any further delay may affect structure of the dam.
f) 50% of the work has already been completed and Rs. 10,000 crore of public money spent. Each day delay is causing loss of Rs. 10 crores.
g) The Appellant has furnished no acceptable explanation for the gap of three weeks in swearing of affidavit and filing of appeal.
The affidavit purports to depose to the correctness of the contents of the appeal though the affidavit is dated 21.08.2019 while the appeal is dated 12.09.2019.
h) Delay is not bonafide and condonation will harm public interest.
i) Prima facie the appeal itself is not maintainable. 14
16. We thus do not find any ground to condone the delay.
The application for condonation of delay and the appeal are accordingly dismissed.
Adarsh Kumar Goel, CP S.P Wangdi, JM K. Ramakrishnan, JM Dr. Nagin Nanda, EM October 11, 2019 Appeal No. 09/2019 (EZ) DV 15