National Green Tribunal
H.A Kishor Kumar vs Union Of India on 24 May, 2019
Bench: Adarsh Kumar Goel, K Ramakrishnan
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
**********
Appeal No. 54/2016
And
Original Application No. 392/2016
(Earlier Application No. 83/2015 (SZ)
IN THE MATTER OF:
K.N. Somashekar
S/o K.J. Ninge Gowda,
No.93, Flat No. 5, 2nd floor,
West Gate Manor,
R.V. Road, Basavanagudi,
Bangalore-560004 .......Appellants
Versus
1. Union of India
Through its Secretary
Ministry of Environment, Forest and Climate Change
Indira Paryavaran Bhavan
Jor Bagh Road
New Delhi-1100030
2. Ministry of Environment, Forest and
Climate Change Regional Office
Southern Zone
Through the Chief Conservator of Forests (Central)
Kendriya Sadana, 4th Floor,
Koramangala,
Bangalore-560034
3. The State of Karnataka
Through the Principal Chief Secretary
Vidhana Soudha
Dr. Ambedkar Veddhi,
Bangalore 560001
4. Karnataka Neeravari Nigam Limited,
Through its Chief Engineer
Yettinahole Project Division-I
Sakaleshpura
Hassan District,
Karnataka
5. The Tree Conservation Officer
1
Deputy Conservator of Forests,
Hassan District, Hassan
Karnataka
.....Respondents
And
H.A. Kishor Kumar
S/o H.S. Appaswamy Gouda,
Advocate,
President, Malenadu Janapara Horata Samiti,
"Kumaralingeshwara", Behind Dental College,
Vidyanagar, Hassan- 573201
Karnataka .......Appellants
Versus
1. Union of India
Rep by its Secretary to Government
Ministry of Environment, Forest and Climate Change
Indira Paryavaran Bhavan
Jor Bagh Road
New Delhi-1100030
2. Principal Secretary
Dept. of forests, Ecology and Environment
Government of Karnataka
Dr. Ambedkar Veedhi
Bangalore-560001
3. Chief Conservator of Forests
Regional Office (South)
Minsitry of Environment and Forests
Kendriya Sadan
Koramangala
Bangalore 560034
4. The Member Secretary
Karnataka State Biodiversity Board
Vanavikasa
Malleshwaram
Bangalore 560003
5. The National Board for Wildlife
Ministry of Environment and Forest
Indira Paryavaran Bhavan
Jor Bagh Road
New Delhi-1100030
6. The Member Secretary
Karnataka State Pollution Control Board
Parisara Bhavana
Church Street
Bangalore 560001
2
7. The Chdief Engineer
Karnataka Neeravari Nigam Limited
4th Floor, Coffee Board Building
No.1 Dr. B. R. Ambedkar Veedhi
Bangalore 560001
.....Respondents
For Appeal No. 54 of 2016
COUNSEL FOR APPELLANT:
Mr.Ritwick Dutta, Ms. Meena Gopal and Mr. Utkarsh Jain, Advs
COUNSEL FOR RESPONDENTS:
Mr. Krishna Kumar Singh, Adv for Ministry of Environment, Forest
and Climate Change. Mr. Naveen R. Nath, Mr. Abhimanyu Verm,
Advs. Mr. Devraj Ashok, Adv for the State of Karnataka
For Original Application No. 392 of 2016
COUNSEL FOR APPELLANT:
Mr. Yogeshwaran, Adv
COUNSEL FOR RESPONDENTS:
Mr. Attin Shankar Rastogi, Adv for Ministry of Environment, Forest
and Climate Change. Mr. B. V Niren and Mr. Vinayak Gupta, Advs.
Mr. Naveen R. Nath and Mr. Abhimanyu Verma, Advs. For
Respondent No.10. Mr. Devraj Ashok, Adv for State of Karnataka.
JUDGEMENT
PRESENT:
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) Reserved on: 13th May, 2019 Pronounced/Uploaded on: 24th May, 2019
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?3
K. Ramakrishnan, Judicial Member Appeal No. 54/2016 and O.A. No. 392/2019
1. Appeal 54/2016 was filed by the appellant Shri K. Somashekhran challenging the order of the State of Karnataka in No. FEE 136 FLL 2014 Bangalore dated 21.09.2016 inter alia challenging the Forest Clearance granted under Stage-1 and Stage-2 (for the Yettinahole project granted to Respondent No.4, Karnataka Nilvari Nigam Limited) under Section 16 of the National Green Tribunal, 2010, while O.A. No. 392/2016 was filed by one Shri H.A. Kishore Kumar challenging the feasibility of the project and praying for a direction not to proceed with the project by the Project Proponent without getting Environmental Clearance under Environment Impact Assessment Notification, 2006 and for consequential relief of injunction restraining them from proceeding with the work without conducting the scientific study of the environment impact on Western Ghats by the project proponent under Section 14 and 15 of the National Green Tribunal Act, 2010.
2. The common allegation in both these cases was that the State of Karnataka had proposed to undertake Yettinahole project through Karnataka Neeravari Nigam Limited for the purpose of providing drinking water to the districts in the 4 East and West including Kolar, Chukkabalapura, Ramanagara and Bangalore Rural district in the bio diversity rich Hassan district in the Western Ghats by diverting water from the west flowing tributaries of River Nethravathi.
3. It is also an admitted fact that the MoEF & CC by the letter dated 28.03.2013 granted in principle sanction for the project stating that no Environmental Clearance is not required as it is a drinking water project and not falling under any of the categories provided under the EIA Notification, 2006. The common contention raised in the both the appeal as well as the O.A. was that the Stage-1 and Stage-2 approval granted under the Forest (Conservation) Act dated 06.01.2016 and 01.08.2016 were issued by the authorities ignoring the impact of the project on Ecologically Sensitive Western Ghats and also ignoring the recommendations made by the Principal Chief Conservator of Forest, Bangalore dated 22.07.2015. They also contended that the sanction was accorded by the Government agencies without considering the impact of the project on ecologically sensitive area of Western Ghats against the report of Professor Madhav Gadgil Committee modified by Dr. Kasturirangan report and the notification issued by the Central Government in this regard. Further it was against the orders passed in T. N. Godavarman Thirumalpad Vs. Union of India & Ors (M.A. No. 1167 of 5 2015 (I.A No. 3620/2013) in W.P. (C) No. 202 of 1995) of National Green Tribunal. They have further contended that though it is termed as drinking water project, in fact it an irrigation project for providing water for cultivation in those areas which will fall under purview of the EIA Notification, 2006.
4. They have further contended that one of the Expert Committee Member Prof. Yellareddy had opposed the project as not feasible and it will have greater impact on the ecologically sensible area of Western Ghats and this project should not be granted and they should go for alternate site.
5. They also contended that the purpose for which the project was intended is not feasible and that much water will not available for diversion as claimed by them and it will cover more forest area than suggested by them as 13.93 ha and in fact it will come to more than 600 ha which has not been taken note of by the authorities. They also contended that the Regional Empowered Committee has not applied its mind before granting the clearance under the Forest (Conservation) Act, 1980 and conditions imposed in Stage-1 approval were not complied with by the project proponent and without considering the same, Stage-2 approval was granted which is against law. It is also against National Forest Policy as well as National Water Policy and these aspects were not considered by the authorities before 6 granting the clearance. So the appeal was filed file K. Somashekar seeking the following reliefs:
i. Pass an order quashing the order of the State Government in No.FEE 136 FLL 2014, Bangalore dated 21.09.2016, through the Government of Karnataka (Forest, Ecology and Environment Department, Respondent No.3), ii. Pass an order directing the user agency to only go ahead with the construction of the Tettinahole Phase-I project once a comprehensive ecological impact study has been carried out in accordance with the precautionary principle.
6. The O.A. No. 392/2016 was filed Shri H A Kishore Kumar seeking following relief:
A. Direct the 7th respondent to forthwith cease all activities connected with the project titled "Yettinahole project" including but not limited to tree felling, excavation for canals, reservoirs and construction of weirs, diversion of canalsand transportation and storage of construction material including but not limited to steel sheets, steel pipes, cement, iron rods, sand, stones, etc and construction of balancing reservoirs, canals and reservoirs as envisaged in the DPR without clearance under the EIA Notification, 2006, the Biodiversity Act, 2002, the Forest (Conservation) Act, 1980 and the National Board for Wildlife.
B. Direct the 7th Respondent to conduct comprehensive environmental impact assessment of the present project including the impact on environmental flows of the Yettinahole, Yettinahole Tributary- 1, Yettinahole Tributary- 2, Kadumane hole-2, Kadumane Hole-1, Kerihole, Hongadahalla streams and the Netreavati river on account of the proposed diversion.7
C. Direct the 7th Respondent to conduct a comprehensive environmental impact assessment for all components of the present project including diversion of streams, impact on wildlife habitat and biodiversity, impact of lower riparian farmers, construction of canals, construction of reservoirs and the areas of possible submergence prior to the implementation of the project.
D. Injuct the 7th Respondent from continuing with any project related activitiy including but not limited to tree felling, excavations and construction of weirs/reservoirs without obtaining environmental clearance under EIA notification, 2006, clearance under the Forest (Conservation) Act, 1980, the Biodiversity Act, 2002, clearance from the National Board for Wildlife and the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.
E. Dirct the 7th Respondent to remediate the lands to their previous pristine state and pay compensation for the illegally felled trees and for destroying and disturbing the ecology of the Western Ghats. F. Direct respondents 1 to 6 to ensure that no project related activity is undertaken by the 7th respondent without prior permission under the EIA Notification, 2006, clearance under the Forest (Conservation) Act, 1980, the Biodiversity Act, 2002, clearance from the National Board for Wildlife and the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. G. And pass such further order or orders as may be fit, proper and necessary in the facts and circumstances of the case and thus render justice.8
7. Ministry of Environment, Forest and Climate Change (MoEF & CC) filed its reply in both the cases raising common contention as follows:
The application is not maintainable and it is barred by limitation.
The Government of Karnataka vide letter No. FEE 136 FLL 2014 dated 19.08.2015 had submitted a proposal for diversion of 13.93 ha of forest land in 10 locations of Sakelespura forest area for implementation of Yettinahole project in favour of Executive Engineer KNNL.
8. After receipt of additional information from State Government vide letter dated 30.11.2015, the said proposal was placed in the Regional Empowered Committee (REC) meeting held on 18.12.2015. Meanwhile representation had been received from Sh. K. N. Somashekar and Sh. Purushottam Chettrair against the implementation of this project. The Regional Expert Committee, after going through the materials placed before the Committee, decided to visit the project area and then hold a meeting of the Committee in the office of the Chief Conservator of Forest, Hassan to consider the proposal. The site inspection was undertaken by the Members of the Committee on 28.12.2015. During the site inspection, some of the activist opposed the project and they were also heard by the Committee after completion of the site inspection.
9. The additional points/objection raised during hearing was also considered by the Regional Expert Committee in the meeting held on 28.12.2015 and the appellant in Appeal 9 54/2016 was also present. Thereafter, after considering the project and objection, the Committee recommended to grant of Stage-1 approval and accordingly the Ministry had granted Stage-1 approval dated 06.01.2016 with conditions.
10. Thereafter, the State Government vide letters Nos. FEE 136 FLL 2014 dated 01.08.2016 & 19.08.2016 and Principal Chief Conservation of Forest, Karnataka vide letter No. A5 (2).GFL.CR.15/2013-14 dated 14.09.2016 submitted report of compliance/acceptance to the conditions stipulated by the Central Government in the in-principle approval. Based on the compliance report received from State Government, Stage-2 final approval was accorded under Forest (Conservation) Act, 1980 vide letter dated 15.09.2016.
11. Since it is only a drinking water project, after getting the opinion of the Expert Appraisal Committee, vide letter dated 28.03.2013, the Ministry issued clarification that no environmental clearance required for this project. Further, before considering the same, the report of the Chief Wildlife Warden was also obtained and the approvals were granted only in accordance with law and there is only minimal impact on the Western Ghats. There is no violation of any provisions of the notification issued or any of the statutory provisions in granting the sanction for the proposal. So they prayed for dismissal in both the appeal as well as the Original Application.
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12. The project proponent filed detailed objection in both these cases raising almost similar contention contending as follows:
Both the appeal as well as application are not maintainable.
The appellant K.N. Somashekar in Appeal 54/2016 is not entitled to challenge the Stage-1 approval of 06.01.2016 as it is barred by limitation. Stage-2 approval and subsequent sanction granted by the State Government for the project are only implementation and execution of the Stage-1 approval granted by the MoEF &CC. The attempt of appellant as well as original applicant is to overcome the principle approval granted by the Ministry vide letter dated 28.03.2013 stating that the project does not require Environmental Clearance which is barred by limitation.
13. Appellant in Appeal No. 54/2016 had challenged the project by filing O.A. 303/2016 and the same was dismissed by the Southern Bench of this Tribunal vide order dated 30.07.2016 as it was dismissed as barred by limitation. The same cannot be again challenged either by the appellant or by the original petitioner by way of filing these appeal or original application respectively.
14. They have further contended that since it is a drinking water project, no Environmental Clearance required under the EIA Notification, 2006. They have further contended that it is not against the National Forest Policy where there is no total prohibition of user of a forest land for a non- 11 forestry purposes, but it only regulate the same only after getting necessary approval from the Central Government. The bar provided under the Notification issued on the basis of Dr. Kasturirangan report is not applicable to this project as well as in principle approval was granted prior to the notification.
15. They have further contended that this project is intended to provide drinking water to drought prone districts in the eastern part of Karnataka such as Kolar and Chikballapur which are frequently affected due to erratic rainfall and absence of any perennial source of water for drinking purpose. Further the ground water table in these regions has reached alarming depths due to over exploitation and the available ground water is contaminated with harmful salt like Fluoride, Nitrate, etc., in excess of the permissible limit which causes serious diseases and also causes death of livestock. Various studies were undertaken to identify the source of water as well as supplying it to the district concerned and while considering the same, Yettinahole and other streams originated in the upper reaches of the Western Ghats near Sakleshpura were considered and decided to divert about 24.01 TMC of water which is being wasted due to over flow during rainy season and if it is properly utilised, it will be helpful for a population of nearly 70 lakhs.
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16. The study shows that about 400 TMC of water goes to sea downstream during the rainy season from the Nethravathi River and the water availability in this area has been approved by Hydrology experts and the same has been confirmed by Central Agencies like Central Water Commission and National Institute of Hydrology.
17. It is on the basis on the same, a detailed project report of the project was originally envisaged for construction of storage reservoir at Devarayanadurga which involved 600 Ha of forest land for submergence. But later it was modified by giving-up the storage reservoir at Devarayanadurga in Tumkur District and instead the storage reservoirs were planned at other locations which do not involve diversion of forest land. Due to the modification of the DPR for ensuring minimal impact on environment, the requirement of forest land has come down from 600 Ha to only 13.93 Ha. Out of these 13.93 Ha, the Reserve Forest Area is only 1.85 Ha and the remaining 12.08 ha is Deemed Forest.
18. The water so trapped is proposed to be conveyed through pipelines to a distance of about 38 kms where after the water would be conveyed through gravity canals for identified storage locations in the plains for drinking purposes and for partial filling of existing minor irrigation tanks for recharging ground water in the areas which are severely affected by fluoride and other contaminants.
19. The details of the Yettinahole Project are as under; 13
Construction of weir at the selected locations across the selected streams.
Construction of pumping stations at all the lifting locations.
Construction of conveyance system comprising of raising mains to convey the water from selected locations up to the delivery chambers immediately after crossing the Western Ghats.
Construction of gravity canal of length 274.0 Km to reach RL+800.00 m near Tumkur to reach the proposed Byragondlu reservoir.
Construction of a reservoir of capacity 5.6 TMC near Byragondlu for sustainable supply of drinking water.
Construction of raising main of length 45 km towards Chikkaballapur and Kolar respectively through lift system and the further distribution network for supplying water to the proposed areas.
20. The eight weirs that are being constructed for trapping the water during the rainy season are so built so as to ensure that they only facilitate the pumping of water to the planned extent without affecting the flow of water in the stream. The ground where the pipes are going to be laid conveying the water will be restored to the original condition which will ensure that there is very minimal or no damage in the area through which the pipelines pass through.
21. There is no violation of any Act. The Minor Irrigation tanks are being used only to recharge the ground water and to ensure that the water is not used for irrigation purposes. There is no intention to use the same for irrigation purpose. 14
22. They have further given undertaking to the Government vide letter dated 30.10.2013 that the project is not involved Hydro-electric and irrigation components and filling up of Minor Irrigation tanks is only meant for underground recharge.
23. The DPR was prepared by M/s E I Technologies Pvt. Ltd on the basis of the work awarded to them by M/s Environmental Health and Safety Consultants which is a NABET accredited agency. The Draft EMP covers all the aspects raised by applicant. The aquatic aspects of the project were conducted by Shri M F Rehman, retired scientist from Central Inland Fisheries Research, Government of India, a renowned expert in Karnataka in the field of aquatic life.
24. The Gadgil report as modified by Dr. Kasturirangan report was accepted by the Central Government by issuing draft notification and inviting objection to regulate the activities in Western Ghats. The draft notification which accepts Kasturirangan report substantially does not include hydro- electric projects and drinking water projects in the list of prohibited activities.
25. There is no need to obtain No Objection Certificate from National Board of Wildlife as required under Wildlife Protection Act, 1972 as project does not fall under or near the Wildlife Sanctuary and it is situated beyond 13 Km of the same. They have applied for obtaining necessary 15 permission from the KSPCB and it is not falling any of the red, orange and green category of industries.
26. The project does not contemplate establishment of an industry, operation or process which is likely to discharge, Sewage or Trade Effluent into Stream or Well or Sewer or on land. There is no violation of any of the provisions of any of the Acts or directions of the Supreme Court. So they prayed for dismissal of the application as well as the appeal.
27. Earlier Appeal No. 54/2016 was dismissed by judgement dated 05.12.2017 as follows:
1. "We have heard the Learned Counsel for the appellant and the contesting respondents and reserved it for Judgment on 21st September, 2017.
However, as the Hon'ble Expert member, who was part of the composition of this Bench, is demitting office on 08th October, 2017, considering all attending circumstances and urgency in the matter, for the detailed reason that will follow, we are pronouncing the operative portion of the decision today.
Operative portion of Judgement Pronounced
2. For the reasons that will follow:
The appeal preferred seeking an order to quash the Order No. FEE 136 FLL 2014 dated 21st September, 2016 of the Government of Karnataka/Forest/Environment Department- respondent No.3 and to restrain the project activity of the State Government is rejected, in so far as the first relief is concerned.
However, while permitting the project activity as envisaged by the State Government of Karnataka, we direct the user agency to proceed with the 16 construction of Yettinahole Phase-I project, only subject to compliance of various conditions and directions in terms of the detailed judgment that will follow and as per law.
3. Accordingly, the Appeal No. 54 of 2016 is disposed of with no order as to cost. Consequently, M.A Nos. 1116 and 1175 of 2016 also stand disposed of.
28. Some of the parties have challenged similar order passed in some other matter before the High Court of Andhra Pradesh and vide order dated 08.11.2017 reported in 2017 SCC online Hyderabad 356 in State of Telangana through its Chief Secretary Kairadabad, Hyderabad Telangana and Another vs M/s Mohammad Qutbudin Vs and Ors, the Hon'ble High Court set aside the order as no detailed order was passed and it was directed to be heard in detail. It was on that basis M.A. 138/2018 was filed by the appellant and it was decided to be reheard in detail.
29. Similarly, O.A. No. 392/2016 was also taken for Judgment and since the judgment was not pronounced, it was also taken for rehearing along with Appeal No. 54/2016.
30. Heard the counsel for the appellant in Appeal No. 54/2016 and the counsel for the petitioner in OA. No. 392/2016 and the counsel for MoEF &CC the Project Proponent and the State of Karnataka in both these cases.
31. In O.A. No. 392/2016 some of the villagers filed application for impleading and the same was allowed and they were impleaded as respondents 8 to 10, as per order in M.A. 17 261/2015 in O.A. No. 49, 83, and 138/2015 and they filed a separate statement supporting the project.
32. It may also be mentioned here that same appellant namely K.N. Somashekar had filed O.A. No. 117/2016 before Southern Zone Bench of this Tribunal which was transferred to this Tribunal and renumbered as O.A. No. 393/2016 challenging the same project but later it was dismissed as withdrawn. Another petitioner namely Sh. Purshotam Chettrair filed O.A. 49/2015 before the Southern Zone Bench which was later transferred to this Tribunal and renumbered as O.A. No. 391/2016, and the same was disposed of by this Tribunal by order dated 13.02.2019 as follows:
"At the outset, the learned counsel for the respondent submits that a similar application, wherein identical prayers were made, has already been decided by the Southern Zone Bench on 30th July, 2015, in Original Application No. 303/2014. Moreover, it has been submitted by the learned counsel for the Respondent that on grant of Stage II clearance under the Forest Conservation Act in the month of September, 2016 the same has been challenged by a separate appeal (Appeal No.54 of 2016).
In view of the above, nothing remains to be adjudicated in this case and therefore the same is dismissed with no order as to cost."
33. The Counsel for the appellant as well as the counsel for the original petitioner have reiterated their contentions in the respective appeal memorandum as well as in the original petition. They also relied on decision reported in Lafarge Umiam Mining (P) Ltd. Vs. Union of India, (2011) 7 18 Supreme Court Cases, 338 and also an unreported decision in Santosh Bhakti Vs. State of Madhya Pradesh and T.N. Godavarman Thirumalpad Vs. Union of India & Ors.
34. The main contention was that the Central Government should not have granted Stage-1 as well as Stage-2 approval under the Forest (Conservation) Act, 1980 and the State Government should not have granted the clearance and those things were granted without application of mind and without considering the impact of the project on Western Ghats which is declared as Ecologically Sensitive Area and against the direction given in the notification in this regard. They have further contended that the Ministry should not have observed that this is outside the purview of EIA notification, 2006.
35. On the other hand both the counsel for Project proponent, MoEF & CC and the State of Karnataka contended that they are not entitled to challenge the principle approval granted in 2013 for the project and it is beyond limitation and the appellant also cannot challenge the Stage-1 approval granted for the project as it is beyond limitation. Further Stage-2 approval is only an implementation of Stage-1 approval and only after complying with the conditions Stage-2 approval was granted based on which the Government had granted the clearance under the Forest (Conservation) Act.
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36. According to learned counsel for the contesting respondents the appeal as well as the petition are liable dismissed.
37. It is an admitted fact that the present project has been intended to be launched by the Government of Karnataka for providing drinking water in some areas on the eastern part of the State where scarcity is more. It is also an admitted fact that State of Karnataka had submitted an application to the Ministry of Environment, Forest and Climate Change seeking clarification regarding applicability of EIA Notification, 2006 vide their reference no. CF/KN&L/UV/CTA-5/TS10/2012-13/1607 dated 18.10.2012 and subsequent letters dated 20.11.2012 and 26.11.2012 and the MoEF & CC considered the same and passed an order dated 28.03.2013 which reads as follows:
No.J-12011/46/2012-IA-1 Ministry of Environment and Forests Government of India (IA-I Division) Paryavaran Bhawan CGO Complex, Lodhi Road New Delhi-110003 Dated: 28th March, 2013 To, The Chief Engineer Office of the Chief Engineer Karnataka Neeravari Nigam Ltd Government of Karnataka Upper Bhadra Project Zone Chitradurga (Karnataka) Subject: Drinking Water Supply Scheme to Tumkur Bangalore (Rural), Kolar and Chikaballapur Districts of Karnataka by M/s Karnataka Neeravari Nigan Ltd Government of Karnataka-20
Clarification of applicability of EIA, Notification 2006- regarding Sir, This is with reference to your letter no. CE/KNNL/UBPZ/CTA/TA-5/TS10/2012-13/1607 dated 18.10.2012 and subsequent letters 20.11.2012 and 26.11.2012 on the above mentioned project.
2. The said proposal has bene examined in the Ministry as well as by the Expert Appraisal Committee (EAC) for River Valley and Hydroelectric Projects in its meeting held on 26-
2th December, 2012. The comments and observations of EAC may be seen in the Minutes of the meeting, which are available on the website of this Ministry.
3. The Government of Karnataka explained that the project is to divert excess floodwater from west flowing rivers such as Yattinahole, Kadumanehole, Kerihile and Hongadallahole located in Sakleshpur of Hassan District and utilize the same for drinking water purpose. The total quantity of water to be diverted is 679.483 M cum (24.01 TMC). Out of 24.01 TMC, 14 TMC of water is to be utilized to provide drinking water to Tumkur and Bangalore Rural Districts via gravity channel and 8 lifting stations/pumps and balance 10 TMC is proposed to be utilized in Kolar and Chikkaballapurs Districts which are facing severe shortage of drinking water. A reservoir with 10 TMC is proposed to be built near Deverayanadurga, Tumkur District for this purpose. Water is to be conveyed to the respective districts through rising main of 80 km long and 55 km long to Chikkaballapura and Kolar respectively. Total land requirement is approximately 1200 ha Out of which 50 % of the land is forest land and the rest is agricultural land. Total project cost as mentioned in the letter is Rs. 83.23 Crores.
4. The project neither proposes any hydroelectric power generation nor proposes irrigation use/purpose to developed any command area.
5. It is noted that this is a drinking water supply schemes which does not attract the provisions of EIA Notification, 2006 and its subsequent amendment, 2009 although there are some issues involved like submergence and R & R issues which may be appropriately addressed by the State Government.
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6. the Government of Karnataka shall ensure among other things the following steps/measures; i. Necessary permission/clearance for diversion of forest land for the project shall be obtained from the designated authority before commencement of the project ii. any other mandatory clearance/stator permission from any other organisation / department is to be obtained by the project proponent.
iii. An adequate R&R plan may be prepared and implemented wherever necessary, with adequate compensation to the project affected families.
iv. Environmental safeguard
measures/management plans may be
implemented in a timely manner
v. During the construction period, environmental good practices such as dust suppression/control, noise control etc to be followed.
7. The Ministry of Environment & Forest reserves the right to reconsider the matter, if so warranted.
8. This issues with the approval of the Competent Authority Yours faithfully (B.B. Barman) Director
38. So it is clear from the above that the application was pending from the Central Government in this regard from 2012 onwards and Ministry by above referred letter clarified that since it is a drinking water project, no Environment Clearance is required and it is after getting a report from the Expert Appraisal Committee of River Valley and Hydro- electric projects as per their decision in meeting held on 26- 27 December 2012 and after considering the same that Ministry had clarified that this is outside the purview of EIA notification, 2006.
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39. It is also in a way admitted fact that this was challenged by the appellant in Appeal No. 54/2016 by filing a Writ Petition before the Hon'ble High Court of Karnataka as W.P. 12307/2014 and by order dated 02.06.2014 the Hon'ble High Court of Karnataka allowed the petitioner to withdraw the same with liberty to seek alternate remedy before the National Green Tribunal.
40. It is thereafter, he filed O.A. No. 303/2014 before Southern Zone Bench of National Green Tribunal and the Southern Zone Bench by order dated 30.07.2015 dismissed the application on the ground of limitation as it is barred by limitation in view of the provisions under section 14 (3) of the NGT Act.
41. Though a review petition was filed against the same, the same was also dismissed by the Tribunal and that has not been further challenged. So as regards the order dated 28.12.2013 of the Ministry, it had attained finality and that cannot be challenged by the appellant in these proceedings.
42. Further as regards the petitioner in O.A. 392/2016 also, it cannot be said that he was not aware of the same and he himself was a party to one of the representation filed before the Ministry against the project in which this aspect has been raised as one of the grounds and that was considered and it is only thereafter that the orders have been passed.
43. So as regards the establishment of the project is concerned by the letter dated 28.03.2013, Central Government has 23 granted in principle sanction for the project and only further compliance of the provisions of other statutes alone were to be considered for implementation of the project.
44. So, the first cause of action for the petitioner in O.A. No. 392/2016 arose during 2013 itself and he did not challenge the same by filing an appeal or by filing an original application.
45. Once the cause of action first arose in 2013 and if no appeal or application has been filed within 30 days or 06 months as the case may be and if it is not filed within that period or at-least filed within the extended period of 60 days provided under the statute under Section 14(3) and Section 16 of the Act, then the same cannot be entertained at a later stage as it is barred by limitation. So there is some force in submission made by counsel for the respondent that original application is barred by limitation and the same is liable to be dismissed on that ground.
46. In the decision reported in Vimal Bhai and Anr. Vs. Union of India (Appeal No. 7/2012) of this Tribunal dated 03.11.2012it has been observed by this Tribunal that what is appealable under Section 2 and 3 of Forest Conservation Act, 1980 under Section 2 (A) of the above Act read with Section 16 of the National Green Tribunal Act, 2010 is the final order passed by the State Government or other authority authorised by the State Government in this regard and not the stage wise approvals given by the Central 24 Government as required under the Forest Conservation Act and Rules.
47. So the appeal will not lie against Stage-1 and Stage-2 approvals given by the Central Government for this purpose.
48. Further in the decision reported in Prafulla Samantara vs. Union of India, 2014 SCC Online NGT 892, this Tribunal has held that the Stage-1 and Stage-2 approvals will merge with the final order passed by the Government in granting approval and the person who is challenging the ultimate clearance granted by the State Government is entitled to challenge the decision taken by the Central Government for granting Stage-1 and Stage-2 approval as both those approvals will merge with order clearance granted by the Government.
49. So the submission made by the Counsel for MoEF & CC, State of Karnataka and Project Proponent that the appellant in Appeal 54/2016 is not entitled to challenge the Stage-1 approval as it is b arred by limitation cannot be accepted as the appellant is challenging the ultimate order of clearance granted by the State Government under the Forest Conservation Act for converting the forest land to non-forest purpose.
50. As regards the National Water Policy is concerned, it is intended to conserve and preserve the ground water and regulate the same in holistic and scientific manner in 25 critical and other areas so as to make the ground water available to all for drinking purpose. The National Policy also evolves the procedure for conservation of ground water by adopting rain water harvesting in an effective manner and allow the rain water to go to the ground for the purpose of recharge thereby the replenishing of water table can be increased wherever it is depleted drastically.
51. The policy only promotes activities of such nature which are intended for conserving ground water and make it available for drinking purposes in a scientific and regulated manner.
52. So under circumstances any project intended for conserving the ground water level or ground water table in a much affected area by providing a method for recharging the same so as to increase the replenishing of water table so as to increase the available water in that area has to be encouraged.
53. The policy also encourages the method of diverting the flood water in a scientific manner for using the same for ground water recharge to conserve and save the water table so as to provide better drinking water to the public.
54. The project proponent by this project only intends to divert the excess flood water flowing in Nethravathi river and its tributaries during rainy season through canal and pipes so as to fill the dried minor irrigation tanks to a minimum limit to provide the same for water recharging so as to increase the water table in a depleted area.
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55. So it cannot be said to be against the National Water Policy as contended by the Counsel for the appellant as well as the applicant in the above cases.
56. There is no dispute regarding the dictum laid down in the decision in Lafarge Umiam Mining (P) Ltd. Vs. Union of India, (2011) 7 SCC 338 and T.N. Godavarman Thirumalpad Vs. Union of India and Ors., M.A. No. 1167 of 2015 (I.A. No. 3620/2013) In W.P. (C) No.202/95.
57. Those cases only say whenever mining activities are to be done in forest area, it must be very carefully considered after getting appraisal done by the Expert body and also considering the impact of those industries in forest.
58. They did not prohibit activities such as Hydro Electrical Project or Drinking Water Project. It is also mentioned in those decisions that authorities must be careful in granting permission for converting forest land for a non-forestry purposes taking it account its public utility and profitable use and also not in much deterioration to Ecology and Environment.
59. Those decisions only reiterates that the Government must take into consideration the Sustainable Development and Precautionary Principle before granting such permission in a judicious manner and it cannot be done arbitrarily without application of mind.
27
60. The dictum laid down in the decision reported in Babu Varghese Vs. Bar Council of Kerala, (1991) 3 SCC 422 is not applicable to the facts of this case.
61. A reading of the orders passed by the Government in this regard while granting Stage-2 approval will go to show that the project proponent had complied with the conditions imposed while granted the Stage-1 approval and only after getting the reports regarding the compliance that the Stage- 2 approval has been granted. The appellant has not produced any scientific data or any documents to show that any of the conditions imposed have not been complied with by the project proponent except stating that the conditions have not been complied with.
62. The recommendations made by the Principal Chief Conservation of Forest for the project wherein he had opined that user agency may be insisted to obtain necessary clearance under the Environment (Protection) Act, 1986 cannot be treated as a condition as such but it is only a recommendation but while forwarding his recommendation, such a specific condition was not imposed in his letter dated 22.07.2015. So it is only recommendary in nature and that need not be binding on the statutory authority which has to grant sanction and this has been considered by the authority. This opinion made by the forest official was ignoring the earlier in principle sanction granted by the MoEF & CC vide letter dated 28.3.2013 wherein it has been 28 specifically mentioned that no environment clearance is required as it is outside the purview of the EIA notification, 2006.
63. Further even under the EIA notification, 2006 only those projects which fall under 1(c) of schedule requires environment clearance which reads as follows:
(i)River (i) > 50 MW (i) > 25 MW and <50 MW General conditions Valley hydroelectric hydroelectric power shall apply Project power generation; Note-
generation; (i) Category "B" river
(ii) >2000 ha. and <50,000 valley projects
(ii)Irrigation (ii) > 50,000 ha. ha of culturable command falling in more than
projects of culturable area one State shall be
command area appraised a the
Irrigation Requirement Central Government
system of EC Level.
(ii) Change in
(a) Minor Exempted irrigation technology
Irrigation having
system environmental
(<2000 Ha) benefits (e.g., From
(b) Medium Required to flood irrigation to
irrigation prepare Drip irrigation, etc)
system EMP and to by an existing
(>2000 and be dealt at project, leading to
<10000 Ha) State Level increase in
(B2 category) Culturable
Command Area but
(c) Major Required to without increase in
irrigation prepare Dam.
system EIA/EMP
(>10,000 to and to be
<50,000 ha) dealt at
State Level
(B1 category)
64. Since the project proponent had undertaken that they have no intention to convert the same to hydraulic power station or any irrigation purpose and they wanted to use only for drinking water purpose, this will be falling out of the EIA notification, 2006 as rightly observed by the MoEF & CC in their letter dated 28.3.2013. So there is no necessity for obtaining any environment clearances in this case.29
65. Further while granting Stage-1 as well Stage-2 approval, the Central Government has considered the report given by the Principal Chief Conservator of Forest, Karnataka and also the report submitted by the Chief Wildlife Warden wherein they have categorically stated that it is not following within the prohibited distance of any National Geological Park or any wildlife sanctuary so as to get clearance from the wildlife board as contended by the counsel for the appellant as well as the applicant in the above cases.
66. Further the impact of the Western Ghats has been considered and only a minimum extent was permitted to be used for non-forest purpose which is required to meet the contingency of providing drinking water to the general public who are affected by the water scarcity.
67. Further the notification relied on by the counsel for the appellant as well as the applicant issued in the year 2015 on the basis of Dr. Kasturirangan Report on Western Ghats also didn't prohibit the project regarding drinking water purpose and only certain categories of activities specified therein alone were prohibited.
68. Further the document produced by the appellant as well as the applicant also will go to show that the government as well as the authorities have called for the necessary documents wherever they required clarification and only after getting those clarifications and the documents that they have granted the approval. So it cannot be said that 30 the authorities have granted the approval without application of mind and without applying the precautionary principle or applying the statutory provisions in this regard as contended by them.
69. Further it was also seen from the documents produced that the Environment Management Plan has been produced by the project proponent prepared by an accredited agency and that was considered by the authorities. Only after satisfaction of the same, that the approval has been granted. Merely because one of the member of the Expert Committee has raised an objection regarding the project who was a member who prepared the report against the project alone is not a ground to come to the conclusion that Regional Empowered Committee has not considered the objections. In fact that was also considered and expert member did not attend the subsequent meeting which is clear from the Minutes of the Meeting of the Regional Empowered Committee and it is only after considering the objection also, that they recommended the project for clearance.
70. Further one of the documents produced by the applicant regarding the objection to this project as it is not feasible by the Indian Institute of Sciences also will go to show that there were difference of opinion regarding the project report prepared by Prof. Ram Prasad and some of the members of the same organisation have supported the project as well as 31 feasible. So it can only be treated as a critical analysis of the project by the members of some association and it can only be treated as opinion of members of organisation and it cannot have any legal impact to rely on the same for the purpose of the coming to the conclusion that it was not a feasible project and no sanction should not have been granted by the authorities for this project.
71. So under the circumstances and in view of the discussion made above, we feel that neither the appellant nor the original applicant had made out any case against the implementation of the project and set aside the sanction granted by the authorities for this project. So both the appeals as well as the original application lack merits and the same are liable to be dismissed.
72. The result both the appeal as well as the Original Application are dismissed.
73. However this Tribunal directs the Forest Department and the MoEF & CC to monitor the project and if they found that there were any violation, they are at liberty to take appropriate action against the project proponent and if they want any further study to be conducted while the project was in progress taking into consideration the impact of the same on the Western Ghats, they are at liberty to do the same at the stage of implementation of the project if they deem fit to do so for protecting the environment.32 2015
............................................. Justice Adarsh Kumar Goel Chairperson fff ..............................................
Justice S.P. Wangdi (Judicial Member) .............................................. Justice K. Ramakrishnan (Judicial Member) ..............................................
Dr. Nagin Nanda (Expert Member) Dated: 24th May, 2019 New Delhi 33