Himachal Pradesh High Court
Baragarh Hydro Power Corporation Pvt. ... vs State Of Hp And Others on 12 March, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 171 of 2018 Date of decision: 12.03. 2018.
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Baragarh Hydro Power Corporation Pvt. Ltd.
..Petitioner Versus State of HP and others ....... Respondents Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting? No. For the petitioner: Mr. Anuj Nag, Advocate. For the respondents: Mr. Ashok Sharma, Advocate General, with Ms. Rita Goswami, and Mr. Adarsh Sharma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General, for respondents-State.
Mr. Rajesh Kumar Sharma, ASGI, for respondent No.2.
Mr. Vijay Arora, Advocate, for respondent No.3.
Mr. K.D. Shreedhar, Sr. Advocate with Ms. Shreya Chauhan, Advocate, for respondent No.7.
____________________________________________________________ Sanjay Karol, Acting Chief Justice (oral) On 15th January, 2018, this Court passed the following interim order.
"CWP No. 171 of 2018 and CMP No. 893 of 2018.
Learned counsel for the petitioner undertakes to remove the objections, if any, positively within a period of three weeks from today. Such undertaking is accepted and taken on record.
Issue notice. Mr. Rajat Chauhan, Law Officer, Mr. Rajesh Kumar, learned Assistant Solicitor General of India and Ms. Manisha Thamta, Advocate vice Mr. Vijay Arora, Advocate, waive notice on behalf of respondents No. 1, 4 and 6, respondent No. 2 and respondent NO.3, respectively. Issue separate notice to respondent ::: Downloaded on - 14/03/2018 22:59:44 :::HCHP 2 No. 7, returnable for 12.3.2018, on taking steps within a period of one week.
In the meantime, operation of Annexure P-12 is stayed to the extent that the petitioner shall be allowed to generate the electricity .
but no construction activity shall be carried out at the site till the next date of hearing.
Copy dasti."
2. Annexure P-12 reads as under.
"No. 6027 HP Forest Department.
From r
Divisional Forest Officer,
Kullu, Forest Division,
Kullu.
To
M/s Baragarh Hydro Power Co. Pvt. Ltd. Lower Aleo, Tehsil Manali, district Kullu, HP Dated Kulu, the 29/12/2017.
Sub:
Please refer to Nodal Officer-cum-CCF 9FCA) O/o Pr. CCF, HP, Shimla office endorsement number Ft. 482638/2013 (FCA) dated 20.12.2017 (copy enclosed) non the subject cited above.
2. In this regard it is informed that you were requested vide this office letter NO. 4804 dated 2.11.2017, 4949 dated 13.11.2017 and 5751 dated 13.12.2017 to obtain the technical approval from HIM URJA/State Government department of Energy, Shimla and submit the raise proposal under Forest (conservation) Act, 1980 for the deviations. Further, you were also requested to intimate that how much income is being generated from the project per day and how much royalty is being paid by the project proponent to the HP Government w.e.f. 7.10.2017 onwards. In addition to above, you were also requested to stop the ongoing project activities (except ::: Downloaded on - 14/03/2018 22:59:44 :::HCHP 3 generation of electricity) till the decision into the matter is received from the competent authority and get the necessary technical sanction i.e., for construction of pipeline instead of weir and get tail water pool/tank/tail race of water of Aleo-II, HEP (Aleo Manali Hydro .
Power Pvt. Ltd. (AMHPL) without free flow/outfall of water and related to such clearance along with operational and safety issue etc. (present intake structure of lower Aleo HEP constructed illegally on the right bank of Allain river near the power House and tail pool; area of Aleo-II HET) from the Department of Energy, Shimla etc. but nothing has been heard by you in this regard.
Further, it is submitted that CF, Kullu vide his letter NO.
442/5751 dated 20.12.2017 (copy enclosed) has directed to undersigned that User Agency may be asked to submit the revised proposal under Forests (Conservation), Act, 1980 for the deviation as pointed out vide under references. But despite of repeated requests, you have failed to submit the revise proposal till date.
Now, as conveyed by the Govt. of India vide letter No. complaint/III/RO-DDN/14/1547 dated 14.12.2017 that the State Govt. will ensure that no further construction activities including generation of power, if any, is allowed in this project till the approval of the Govt. of India, MOEF and CC, New Delhi is obtained for diversion of additional forest land used unauthorisidely under the provision of FCA 1980.
Keeping in view of above facts and reasons, you are hereby requested to stop the constructional activities including generation of power till the approval of the Govt. of India, MOEF and CC, New Delhi is obtained for diversion of additional forest land used unauthorisidely under the provision of FCA 1980. Further, you are also directed to prepare or process the revise case/proposal, so that necessary approval could be obtained from the competent authority under the provisions of FACT, 1980 accordingly. Encl. As above.
Divisional Forest Officer, Kullu, Forest Division, Kullu."
::: Downloaded on - 14/03/2018 22:59:44 :::HCHP 43. The aforesaid order is only as a consequence of the order passed by the Government of India, Mi nistry of Environment, Forests and Climate Change dated 14.12.2017 Annexure P-10 which .
reads as under.
"To The Additional . Chief Secretary (Forests), Government of Himachal Pradesh Annadale Building, Shimla Sub: Violation of FCA-1980 by Baragarh Hydro Power Project Ltd.
Aleo at Prini (Manali).
Ref. You letter No. FFE-B-F-(2)-7/2017 dated 18.11.2017. Sir, With reference to the subject-mentioned above the State Government has submitted a report after getting the matter examined by a committee constituted by the Conservator of Forests, Kullu.
After examining the report on the points of compliance as alleged by Shri Om Prakash Rana, village Shuru, PO Prini, Kullu, HP against Baragarh HEP Ltd. Aaleo at Prini (Manali), it is evident that the User Agency has changed the layout proposed in this project without obtaining necessary approval of Govt. of India under FCA, 1980. Further the existing road is also extended by the project authorities in 240 sq. m forest land without obtaining prior approval by diversion under the provision of FCA, 1980.
It is evident from the facts, mentioned above that there is a violation of FCA, 1980 in this case. As reported by the State Government, the DFO, Kullu has already been instructed by the PCCF (HoFF) to stop the ongoing project activities forthwith until the approval of competent authority under FCA, 1980 is obtained.
In view of the above, I am directed to convey that the State Government shall ensure that no further construction activity including generation of power, if any, is allowed in this project until approval of the government of India, MoEF and CC, New Delhi is ::: Downloaded on - 14/03/2018 22:59:44 :::HCHP 5 obtained for diversion of Additional forest land used unauthorisidely for extension of existing road along with the approval for the change in layout plan under the provisions of FCA, 1980.
Yours faithfully.
.
Sd/ (Kamal Preet) Conservator of Forests."
4. From the documents placed by the writ petitioner, it is quite evident that the State and the Government authorities have allegedly found him to have violated the provisions of the Forest Conservation Act, 1980,(hereinafter referred to as the Act), in as much as the project proponent has established the project without obtaining permissions from the authorities under the Act. The authorities are also of the view that notwithstanding the fact that the project stands established, activity of generation of power is also not in consonance with the Act. It is in this backdrop, we are inclined to recall our order dated 15.1.2018.
5. At this stage, learned counsel for the petitioner under instructions seeks permission to withdraw the present petition reserving liberty to approach the authorities under the Act, seeking necessary approvals and take recourse to such remedies as are otherwise available in accordance with law.
6. Learned counsel for the respondents have no objection to the same.
::: Downloaded on - 14/03/2018 22:59:44 :::HCHP 67. We are hopeful that the authorities shall take appropriate decision, after affording opportunity of hearing to all concerned, in accordance with law, within a period of two months.
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8. In view of the prayer made, petitioner is allowed to withdraw the present petition with liberty as prayed for.
9. Accordingly, petition stands disposed of as withdrawn with liberty as prayed for, alongwith pending applications, if any.
(Sanjay Karol) Acting Chief Justice March 12, 2018.
r (Ajay Mohan Goel)
(cm Thakur) Judge
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