National Green Tribunal
Bharat Jhunjhunwala & Ors vs Inland Waterways Authority Of India ∨S on 4 May, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 487/2015
(with M.A. No. 253/2019
& I.A. No. 176/2021)
Bharat Jhunjhunwala & Ors. Applicant(s)
Versus
Inland Waterways Authority & Ors. Respondent(s)
Date of hearing: 04.05.2022
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
Applicant: Mr. Ritwick Dutta, Advocate in M.A 253/2019
Respondent: Mr. Sanjay Upadhyay, Advocate for Inland Waterways Authority
ORDER
[ The Issue
1. The issue for consideration in main OA is whether EIA is necessary for navigation infrastructure in the River Ganga in the stretch from Allahabad to Haldia also known as the National Waterway 1 (NW1), undertaken by Inland Waterways Authority of India ((IWAI), the project proponent (PP).
2. The project envisages developmental activities such as river terminal, jetties and locks and barrages and multimodal river water 1 terminals along with necessary dredging operations. It was estimated to cost ₹4,200 crores, to be completed in six years.
Procedural History and version of the parties
3. The application was filed before this Tribunal on 29.10.2015. Notice was issued on 04.11.2015 to the respondents, including the PP, MoEF&CC, MoJS and States of UP and Bihar. The said respondents have filed their respective replies.
4. Stand of the PP is that it is executing the project under the National Waterway (Allahabad - Haldia Stretch of the Ganga-Bhagirathi-Hooghly River) Act, 1982, for regulation and development of River Ganga for shipping and navigation on the National Waterway Ganga-Bhagirathi- Hooghly River. The PP was constituted under the Inland Waterways Authority of India Act, 1985 for construction of National Waterways, safe navigation and allied infrastructure. The Indian Water Transport can be developed as a fuel-efficient, cost-effective and an environment-friendly mode of transport to supplement the overburdened rail and congested roads. The project is funded by the World Bank and in the process undergoes a rigorous environmental and social safeguard evaluation, which not only mandates the compliance of the country systems but also adds global parameters and safeguards from the environmental and social safeguards standpoints. The PP has undertaken detailed feasibility studies for capacity augmentation of the National Waterway wherein the analysis of key hydrographic, bathymetric, imagery, environmental, social and numerical modeling date to chartering the existing route of NW-1 from the point of view of navigability. It also sought a clarification from the MoEF&CC whether Environment Clearance (EC) was required in the present case. It deputed the Indian Institute of Technology, Roorkee, to 2 carry out a study on the impact of the Multi modal terminal on Ramnagar fort near Varanasi. The study has concluded that there is no scientific evidence of any adverse impact on the Ramnagar Fort structure due to the construction of the multi modal terminal at Varanasi. The PP is not only complying with all the other applicable clearances and permissions but is also taking on board the opinion and apprehensions of local population of the area concerned and duly addressing their concerns. The PP has also engaged specialized accredited environmental agencies to carry out basin level critical environmental resource study to assess if there are any environmental consequences in the capacity augmentation of national waterways. There have also been visits by the Wildlife Institute of India (WII) to look into any impacts from the wildlife perspectives. The program intends to achieve an alternative transport corridor. It will not have adverse environmental and social implications. The PP is splitting the project in smaller stand-alone components for the purpose of evading scrutiny under the EIA notification. It is undertaking only maintenance dredging as opposed to capital dredging operations in NW-1 stretch to maintain Least Available Depth as and when the project commences. The EIA Notification has prescribed the prior/ environmental clearance conditions largely to Coast based development of ports, harbors, break waters and dredging and linked channel. For river-based projects, such as river valley projects and irrigation projects, there are specific conditions and requirements of prior EC. Similarly, there are prior EC requirements for oil and gas transportation, highways and aerial ropeways. Item 7 (e) included ports and harbors till 01.12.2009 after which it also added break waters and dredging. Maintenance dredging even under such coastal ports and harbors were exempted. As per Notification dated 15.01.2016, EIA Notification has been amended exempting requirement of EC inter-alia for 3 the dredging and desilting of damns, reservoirs, weirs, barrages, river and canals for the purpose of maintenance, upkeep and disaster management. No ports or harbours or break waters are proposed to be constructed. The inland waterways will offer sufficient financial benefits for transport which will heavily outweigh the social and environmental costs. Upon successful development of the waterways having depth of 2.5 to 3 m, the transportation will become cheaper by 60 to 70% as compared to the transportation by roadways and 25 to 30% cheaper as compared to transportation by Railways. Inland waterways are recognized as a fuel efficient, cost effective and environment friendly mode of transport but it has received lesser investment as compared to roads and railways. Since inland waterways are lagging behind other modes of transport, the central government has evolved a policy for integrated development of inland waterways. EIA and EMP have been drawn up for the multi modal river water terminal at Ramnagar, Varanasi, phase 1A, with adequate environmental measures. All necessary permissions on wildlife or from the pollution standpoint, wherever applicable, shall be taken in accordance with law. The annual maintenance dredging volume is about 8-10 million cum. in the Haldia- Varanasi-stretch which will be more or less consistent throughout the project period and even in future during the operational period. The overall silt load in Ganges (in the project stretch) is in the range of 700 million to 1 billion cum. annually, which has the highest sedimentation rate in the world and it is not practically feasible to carry out capital dredging in such highly sedimented rivers.
5. The stand of Respondent No. 2, MoEF&CC in its affidavit filed on 29.10.2016 is as follows:-
"2. It is submitted that as per the provisions of EIA Notification, 2006 and its amendment from time to time, Ports, Harbours, break 4 waters, dredging falls under item 7 (e) of the schedule given below and are required to obtain prior environmental clearance:
Project or Activity Category 'A' Category 'B' Conditions if any 7(e) Ports, ≥ 5 million TPA <5million TPA General Condition Harbours of cargo of cargo shall apply break handling handling Note:
waters, capacity capacity and/ 1. Capital
dredging (excluding or ports/ dredging inside
fishing harbours ≥ and outside the
harbours 10,000 TPA of ports or
fish handling harbours and
capacity channels are
included.
2. Maintenance
dredging is
exempted
provided it
formed part of
the original
proposal which
for environment
management
plan and
environment
clearance
3. It is submitted that it does not mention jetty, multimodal terminal and Inland waterways. These are not covered under the ElA Notification, 2006. This project is also located near Kashi Tortoise Sanctuary. Therefore, clearance from National Board for Wildlife needs to be taken."
6. The stand of the Ministry of Water Resources (now MoJS) is that the EIA is administered by the MoEF&CC and as per the Notification, EC is required for various category of projects.
7. The stand of Respondent No. 4, State of UP is formal as follows:-
"5. That in the Year 2014, the Government of India announced 'Jal Marg Vikas Project' to facilitate and improve use of waterways for transportation purposes. That the stretch of the River from Allahabad in U.P to Haldia in West Bengal was declared as National Waterway 1(NWI) in 2014. It is submitted that for navigation, dredging and construction of Multi-Model Terminal from Haldia to Allahabad is to be done by the Inland Waterways Authority of India.
6. It is submitted that the main function/motive of the Irrigation and Water. Resources Department U.P is to provide irrigation facilities which includes Constructing Dams, reservoirs, barrages, weirs, major pump canals etc. on rivers. Further submitted that Irrigation and 5 Water Resources Department U.P has no concern in regards with promotion of Water Ways which is under the control of Ministry of Surface Transport and Shipping Inland Waterways Authority of India."
8. Stand of State of Bihar is also formal except for the factual position as follows:-
"6. That it is most humbly submitted that there are many 6. rivers like Ghaghra, Kosi, Gandak, Mahananda and Bagmati which carry heavy silt load and pour it down in the mainstream of Ganga. The gradual deposition of silt in the bed leads to various issues like soil erosion, meandering, braiding and higher flood levels. This lead to loss human life and animals. Soil erosion results in various other problems. So removal of access silt deposit from mainstream will reduce the loss and will be helpful to maintain better flow of the river."
9. The Project Proponent has filed further affidavit on 16.01.2017 about the scope of the project and applicability of requirement of EC. It is stated that detailed environment assessment has been undertaken by engaging Experts on the subject as follows:-
"Impact Assessment Studies:
12. Detailed Environmental Assessment (EA) has been undertaken for all the proposed components to identify the environmental issues associated with the project. As part of the Environmental and Social Safeguards Policy of the World Bank, the Respondent No 1 i.e. IWAI had engaged ESIA consultants (M/s EQMS India Pvt. Ltd., IRG Systems South Asia Pvt. Ltd. and Abnaki Infrastructure Applications and Integrated Development Pvt. Ltd.) to carry out a comprehensive ESIA study on NW-1 as part of the pre appraisal activity for the Jal Marg Vikas Project.
The following Environment Assessment documents have been prepared for the Project:
i. A Cumulative Impact Analysis (CIA) report: This CIA includes a study on the critical environmental resources of the Ganges basin in India, to provide guidelines to avoid impacts on these as far as possible, and recommends strategies to manage direct, indirect and induced impacts (which include specific guidance for the Project and its EIA).
ii. A Consolidated Environmental Impact Assessment (EIA) for the Project: This is aimed to avoid, mitigate and/or manage Overall potential environmental, health and safety impacts from the Project 6 iii. The EIA and EMP reports includes specific environmental assessment of all major interventions currently planned in the project (barge operations, maintenance dredging, navigational lock at Farakka, multimodal cargo terminals at Varanasi, Sahibganj and Haldia);
iv. The EIA includes an environmental management framework (anticipated potential issues and risks, terms of reference including scope of work for the EA to be undertaken) for civil works interventions that may come up in near future, such as RO-RO jetties, additional multimodal cargo terminals, and vessel repair and maintenance facilities;
v. A summary of concerns raised during consultation has been included as a standalone document highlighting the different stakeholder consultations conducted, issues raised and how they have been incorporated in the project's plans and designs.
The environmental assessments were carried out in substantial consultation with stakeholders, to ensure that the environmental assessment and other compliance requirements are in alignment with the policies and procedures as specified by the Government of India and the World Bank Group safeguard policies.
It may also be noted that the draft EIA reports (the CIA, the Consolidated Environment Assessment containing the EMPs for maintenance dredging and barge operations; the stand-alone EMPs for Farakka Lock, Sahibganj, Varanasi and Haldia Terminals; and the Executive Summary) were disclosed on the IWAI website as early as in May 2016.
13. That based on the Comments from stakeholder the EIA reports were revised in September 2016. These revised versions of the EIA reports were uploaded on IWAI website in December 2016.
That the Respondent No. 1 submits that any new investments in future that require use of a safeguard instrument such as an EIA reports will also follow the World Bank operational policies for public consultation and for disclosure.
Environmental Advantages:
14. As mentioned earlier, Inland Waterway Transport (IWT) is the most environment-friendly mode of transport, compared to the other surface based modes of transport. The following are the major advantages of IWT over the surface modes of transport:
It is a non-water consumptive transportation with minimal resource depletion.
It will facilitate reduction of pressure on Railway network and National Highways, relieving congestion, reduced emissions from vehicles and railway engines on nori- electrified routes, thereby reducing carbon emission and project footprint.7
Use of modern inland water vessels, with natural gas (LNG/CNG) as fuel will reduce emission of SOx (50%), NOx (70%), Particulate Matter (95%) and CO2 (25%). Hence will have negligible impact on ambient air quality. LNG/CNG engines on inland vessels have lower noise level than diesel engines. This has less impact on ambient noise level.
Due to minimum requirement of land acquisition, there will be insignificant impact on ecology & biodiversity, agricultural activities as well as on the livelihood of the people.
The data given below in Table-3 and Table-4 clearly bring out the environmental benefits of IWT over the other modes of transport:
Table-3
External Costs of Pollution Waterways Road Rail
Rs./Tkm Rs./Tkm Rs./Tkm
External Costs of Air Pollution 0.3 0.20 0.0366
Source: Total Transportation System
Study - Planning Commission Report
External Costs of Noise Pollution NIL 0.0032 0.0012
Source: Union Internationale des
Chemins de fer (PIANC)
Accident Cost NIL 0.0620 0.0010
Source: Total Transportation System
Study - Planning Commission Report
Surface Occupation - 0.0002 0.0001
Source: Bundesamt fur Umweltschutz
(PIANC)
Table-4
Emission of Freight Transport (gm/tkm)
Green House As per 12th Mckinsey 'Transforming the International
gases Five Year railways logistics Union of
Plan infrastructure' 2010 railways
Road 160 64 84
Rail 29 28 17
Waterways 31 15 -
It is submitted that the project will further lead to socio- economic improvement of local communities and stakeholders e.g. local fisher-folks, ferry service providers, commuters, local business etc. by providing better connectivity along and between the north and south banks of river Ganga.
15. That in keeping with the principle of sustainable development and considering the least impact nature of the Jal Marg Vikas project and its environmental benefits, it is in the interest of the environment as also the nation that this project be allowed to proceed."8
Further Affidavit of PP placing on record Allahabad High Court order dated 28.04.2016 allowing the project to go ahead without EC
10. The Project Proponent has also filed an affidavit dated 21.10.2016 to bring on record order of the Allahabad High Court dated 28.04.2016 in PIL No. 31229 of 2005, Kautilya Society Thru' General Secy. & Anr. vs. State of UP Thru' Principal Secy. & Ors. allowing the project to go ahead without EC. The said order is reproduced below:-
"PUBLIC INTEREST LITIGATION (PIL) No. - 31229 of 2005 xx xx xx Petitioner :- Kautilya Society Thru' General Secy. & Another Respondent :- State Of U.P. Thru' Principal Secy. & Others xx xx xx Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Dilip Gupta,J.
xxx..........................................xxx......................................xxx B. The Project of Inland Waterways Authority of India (IWAI) The Inland Waterways Authority of India, which is a statutory body constituted under the Inland Waterways Authority of India Act 1982, is proposing to develop a multi modal water terminal at Ram Nagar, Varanasi. The land acquisition proceedings were completed in 2010 and approximately 5.6 hectares of land have been acquired. Among the waterways which have been declared as National Waterways, in implementation of the provisions of Section 14, is NW-1 which covers the Ganga - Bhagirathi - Hooghly river system from Allahabad to Haldia at a distance of 1620 Kms, traversing the States of Uttar Pradesh, Bihar, Jharkhand and West Bengal.
Permanent jetties with mechanical handling facilities have been set up at Patna and Kolkata in addition to which jetties for berthing facilities have been provided at two other places. The project envisages as many as twenty floating terminals at various locations between Haldia and Allahabad. The Vice Chairperson of IWAI, who has assisted the learned Senior Counsel during the course of the hearing of these proceedings, has stated before the Court that the project is being implemented with the technical and financial assistance of the World Bank involving a total of USD 859 million. The project at Ram Nagar is on the south bank of the river and involves the construction of off shore jetties which will not impede the flow or current of the river.
The Environmental Impact Assessment Notification of 9 the Ministry of Environmental and Forests dated 14 September 2006 covers in item 7 (e) of its schedule, projects for ports and harbours. The Court has been apprised of the fact that though the provisions of the notification of MOEF dated 14 September 2006 are not attracted to the project, detailed environmental impact assessments and cumulative impact assessments have been carried out for the project .
The learned Additional Solicitor General of India has placed on the record a copy of the Draft Environmental Assessment Report in respect of Phase 1A of Multi Modal River Water Terminal at Ram Nagar, Varanasi. The submissions which have been made before the Court indicate that the draft EIA report deals with the environmental impact assessment up to the stage of the commissioning of the project and hence, it would be appropriate if IWAI also undertakes to carry out an environmental impact assessment of the position after the commissioning of the project. We deem this suggestion to be fair and proper and the suggestion of the learned Amicus Curiae has not been opposed by the IWAI.
Accordingly, we allow the application which has been filed by IWAI and permit the authority to proceed with the project, subject to the receipt of all the required statutory clearances. This shall, however, be subject to the condition, which we have proceeded to accept of a requirement of obtaining an environmental impact assessment in respect of the project after the date of its commissioning."
Order of the Tribunal dated 1.11.2018 disposing of the matter
11. The matter was considered and disposed of by this Tribunal vide order dated 01.11.2018 in O.A. No. 487/2015, Bharat Jhunjhunwala vs. Inland Waterways Authority of India & Ors., noting that there was no dispute about the EIA Notification not being applicable. However, it was observed that MoEF&CC may look into the issue in consultation with the Experts whether EC is required and whether EIA is to be done in relation to Inland Waterways Projects. The order is reproduced below:-
"In this original application, the primary issue raised is as to whether Environmental Clearance in respect to Inland Waterways is required under Law or not. There is no dispute about the fact that the project of Inland Waterways is, as on date, not included in the EIA Notification, 2006. There is no doubt about the fact that such projects are first of its kind and may increase in the coming days.
Therefore, we consider it appropriate to direct Ministry of Environment and Forest to look into the issue in consultation with the Experts in the field, as to whether any Environmental 10 Clearance is required or not and whether Environmental Impact Assessment is to be done in projects relating to Inland Waterways. They may do this exercise within a period of three weeks.
The Ministry of Environment would submit their final opinion to the Tribunal by 31st January, 2019. Accordingly, this Original Application No. 487 of 2015 is disposed of, with no order as to cost."
Order of Hon'ble Supreme Court dated 22.2.2019
12. Against the above order, Civil Appeal No. 1411 of 2019, Bharat Jhunjhunwala & Ors. vs. Inland Waterways Authority of India & Ors. was filed by the applicant which was disposed of vide order dated 22.02.2019 as follows:-
"However, the application that has been filed, being Original Application No. 487 of 2015, has been disposed of without the appellants being able to comment on the Report.
We make it clear that this Report will be given to the appellants, who can then approach the Tribunal by way of objections, if any, to the said Report in a fresh application filed for this purpose."
Report of the MoEF&CC dated 13.3.2019 in pursuance of order dated 1.11.2018 and objections of the Applicant in pursuance of order of Hon'ble Supreme Court
13. MoEF&CC has filed its report on 13.3.2019 in compliance with the order dated 1.11.2018 to which the applicant has objections by way of M.A. No. 253/2019. In its stand, MoEF&CC has stated that the Expert Committee has examined the issue on 24.10.2017 and concluded that no prior EC is required for maintenance dredging for navigational channel for Inland Waterways. OM No. 14-9/2016-IA-III dated 21.12.2017 was issued by this Ministry to permit Inland Waterways projects, subject to the implementation of detailed environmental safeguards and fulfilment of certain detailed environmental safeguards and fulfilment of certain conditions as enclosed as annexure to the OM. It is further submitted that the applicability of the EIA Notification, 2006 for the Inland Waterways 11 projects had already been examined by an 'Expert Committee' in its meeting held on 18.05.2017 which was also discussed between MoEF&CC and Ministry of Road Transport & Highways, Shipping and Water Resources, River Development & Ganga Rejuvenation on 24.10.2017 and thereafter a considered decision was taken by the Ministry and the same was communicated to the Ministry of Shipping vide O.M. dated 21.12.2017.
14. The objection of the applicant is that no Expert consideration has taken place after order of this Tribunal dated 01.11.2018 and earlier consideration does not take into account the entire scope of the work. The project cannot proceed without EC.
Order of the Tribunal dated 10.1.2020
15. The matter came up for hearing on 10.01.2020. The Tribunal framed following questions for consideration and sought response from MoEF&CC:
"i. Whether the general issue of requirement of EIA raised in the order dated 14.09.2017 by this Tribunal and reiterated in further orders dated 30.05.2018 and 01.11.2018 has been gone into.
ii. Whether in view of order of the High Court and EIA which is said to have been conducted on 'precautionary' principle in respect of the project in question for the present project, no further EIA remains necessary."
No response from MoEF&CC, response sought from MoJS, Stand of MoJS dated 2.5.2022
16. However, no response has been filed by the MoEF&CC when the matter was taken up on 16.12.2020 and 02.09.2021 and even today. The Tribunal, on understanding that it may be the Ministry of Jal Shakti instead of MoEF&CC to deal with the matter, sought a report from the said Ministry which has filed its view point on 02.05.2022 as follows:- 12
"12. That it is submitted that since the issue, primarily, in the above case, involves the applicability of the Environment Impact Assessment (EIA) study and the Hon'ble High Court of Allahabad in Writ Petition (PIL) No. 31229 of 2005, and the Hon'ble NGT have observed/considered the requirement of obtaining an environmental impact assessment study in respect of the project in questions, and directed to constitute an expert committee, the NMCG, Ministry of Jal Shakti shall have no objections if directed to be associated with the said Expert Committee, to be constituted by the MoEF&CC, in terms of the order dated 10.01.2020, passed by the Hon'ble Tribunal, mentioned here in above."
Further consideration of objections of the Applicant to the affidavit of MoEF dated 13.3.2019 on the issue of EC for the project
17. We have accordingly, considered the matter further and heard learned Counsel for the applicant in support of objections to the report dated 13.3.2019 filed by MoEF&CC in pursuance of order of the Tribunal dated 1.11.2018. None appears for MoEF&CC. We have heard learned Counsel for the PP also, who has appeared.
18. Learned Counsel for the Applicant submitted that response of the MoEF&CC dated 13.3.2019 does not show any consideration after order of the Tribunal dated 1.11.2018 inspite of further order of the Tribunal dated 10.1.2020. MoJS is not concerned in the matter as supposed by the Tribunal in its last order. MoEF&CC had opined by its communication dated 6.3.2017 that EC was required but subsequent view on 18.5.2017, 24.10.2017 and 21.12.2017 is incorrect. EC is required as the project involves not merely dredging but capital dredging as well as construction of ports, jetties and multimodal river water terminals squarely falling under entry 7(e) of the EIA notification dated 14.9.2006. Thus, without prior EC, the project cannot proceed.
19. As against above, learned Counsel for the PP submitted that the question is no longer open to be gone into by the Tribunal in view of order of the Allahabad high Court dated 8.4.2016 which has attained finality 13 and has been acted upon for the last six years. It was further submitted that no EIA is required having regard to the scope of work. Entry 7(e) is attracted only to coastal ports and harbours and not to river ports or activities involved in the present project. Further, rigorous studies have already been undertaken and safeguards adopted to comply with all environmental norms. No violation of any environmental norm has been pointed out in the present project which is meant to promote public interest and benefit environment by providing safe and environment friendly transport system, apart from legitimate economic activity. Finding and further directions
20. We have duly considered the matter. We do find that the MoEF&CC has failed to respond to direction of this Tribunal to have the matter examined by experts. Affidavit dated 11.3.2019 does not show consideration by any expert after order dated 1.11.2018. Further, in view of stand of MoJS, the matter is to be dealt with by MoEF&CC and not by MoJS, as assumed in the last order. MoEF&CC remains unrepresented. It needs to put its house in order by taking remedial action and fixing responsibility to avoid such lapses in failure.
21. However, on merits, we find that as far as the present project is concerned, the Allahabad High Court order dated 28.04.2016 clinches the matter and in the face of the said order, there is no scope for this Tribunal to consider the matter as far as this project is concerned. The High Court has expressly referred to the issue of EC and allowed the PP to proceed with the project and get EIA conducted after commissioning of the project. Any contra order by this Tribunal will be improper. Even if the order of the High Court proceeded on statement of Counsel, the same has been operative for six years and this Tribunal is not the forum to question the 14 same. As already suggested, for future consideration, MoEF&CC may study and clarify the matter for technical and Governance clarity for Inland Waterways projects.
The application alongwith all pending I.A.s/M.A.s is disposed of. It will, however, be open to an aggrieved party to take remedy against any violation of environmental norms in executing the project, in accordance with law.
A copy of this order be forwarded to MoEF&CC by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM May 04, 2022 M.A. No. 253/2019 In Original Application No. 487/2015 (I.A. No. 176/2021) SN 15