National Green Tribunal
S Joel vs Union Of India Rep. By Its Secretary ... on 11 September, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.11:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No.33 of 2019 (SZ)
(Through Video Conference)
IN THE MATTER OF:
S. Joel
S/o. D. Samuel,
No.H-141, 31st Cross Street,
Besant Nagar, Chennai - 90.
... Applicant(s)
Versus
1) Union of India,
Represented by its Secretary,
Ministry of Environment and Forest, Climate Change,
Paryavaran Bhavan, Jorbagh Road,
New Delhi - 110 003.
2) State of Tamil Nadu,
Represented by the Principal Secretary,
Department of Environment and Forest,
Secretariat, Fort St. George,
Chennai - 600 009.
3) The Managing Director,
TWAD Board, TWAD House,
No.31, Kamarajar Salai,
Chepauk, Chennai - 600 005.
4) The Principal Chief Conservator of Forest,
Panagal Maligai, No.1, Jeenis Road,
Saidapet, Chennai - 600 015.
5) The Assistant Inspector General of Forest (Central),
MoEF & CC, Regional Office (South Eastern Zone),
1st and 2nd Floor, HEPC Building,
1
No.34, Cathedral Garden Road,
Nungambakkam, Chennai - 600 034.
6) The District Collector,
Thoothukudi District,
Thoothukudi.
7) The Executive Engineer,
Tamil Nadu Water Supply and Drainage Board,
Urban Division, No.164/1-A, Jailani Colony Junction,
Palayamkottai Main Road, Thoothukudi.
...Respondent(s)
Date of Order/Judgment: 11th September, 2020.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): M/s. Ritwick Dutta.
For Respondent(s): M/s. M. Sumathi for R1, R5.
M/s. Mani Gopi for R2, R4, R6.
M/s. Arokiaraj for R3, R7.
M/s. AR L. Sundaresan, Senior Counsel
along with Smt. AR L. Gandhimathi
represented Intervener Industries in
I.A. No.32/2019.
JUDGMENT
1. The grievance in this application is that the 7th respondent is providing water that is being drained through the project which was intended for drinking water purpose against the orders 2 passed by this Tribunal in Original Application No.128 of 2017.
2. According to the applicant, the Government had permitted by their Forest Clearance granted as per order dated 07.03.2008 for diverting forest land to an extent of 0.055 Hectare for drinking water purpose under general approval category and this Tribunal in Original Application No.128 of 2017 by an interim order stayed the supply of water to industries under 20 MGD Scheme and thereafter, it was modified by order dated 07.07.2017. .
3. The final order was passed by this Tribunal in Original Application No.128 of 2017 on 28.11.2018 prohibiting the usage of water drawn under the scheme for industrial and commercial purpose. This was challenged before the Hon'ble Supreme Court and the Apex Court by Judgment in Civil appeal No.11935 of 2018 and batch of cases by order dated 04.02.2019 disposed of the appeals directing supply of surplus water available to industries after fully meeting out the drinking water needs and also to consider the fresh proposal in accordance with law and the user agency namely Tamil Nadu Water Supply and Drainage Board made a fresh proposal to the 1st respondent for supply of water for both industrial and drinking purpose. The 2nd respondent forwarded the proposal by deleting the purpose of 3 supply of water to industries by letter dated 25.03.2019 and the 5th respondent sent back the file to the State Government for necessary action.
4. An interim arrangement was granted by the Hon'ble Apex Court till the proposal was considered and disposed of by the authorities in accordance with law.
5. According to the applicant, the Government had not approved the proposal for diverting the water for industrial purposes and amended the scheme and inspite of that they are continuing the supply of water which is against the directions of this Tribunal.
6. So, the applicant filed this application seeking the following reliefs:-
a) To directed the third and seventh respondent to strictly implement the Government order issued by the Government of Tamil Nadu in G.O. Ms. No.18, Environment and Forest (FR.10) dated 07.03.2008 by supplying the water drawn under 20 MGD Water Supply Scheme through Closed Conduit System to General Public for drinking water purpose only.
b) Pass such further orders or directions which may deem fit, proper and necessary in the interest of justice in view of the facts and circumstances of the present case."
7. As per order dated 07.12.2019, this Tribunal had disposed of I.A. 4 No.32 of 2019 filed by some industrial unit namely M/s.
Southern Petrochemical Industries Corporation Limited for impleading stating that there is no necessity to implead them in the matter but they can be allowed to help the Tribunal in the proceeding.
8. Thereafter, this Tribunal had posted the case for the purpose of considering the present status of the fresh proposal given for using the water for industrial purpose as well which was said to be pending with the Government.
9. Second respondent filed counter contending as follows:-
"I am the Principal Secretary to Government, Environment and Forests Department, Secretariat, Chennai -9, the 2nd Respondent herein and as such I am well acquainted with the facts and circumstances of the case from the records available and I am filing this Reply affidavit on behalf of the Chief Secretary to Government of Tamil Nadu in pursuance of the National Green Tribunal orders dated 23.09.2019. I have read the Memorandum of Application filed in support of the Original Application No.33 of 2019 and I deny all the averments stated in the application except those that are specifically admitted hereunder and the petitioner is put to strict proof of the same.
2) I humbly submit that on 23.09.2019, the Hon'ble National Green Tribunal, Principal Bench, New Delhi in Original Application No.33 of 2019 (SZ) has ordered as follows:-
"....3. In the mean time the Chief Secretary, State of Tamil Nadu is directed to submit their views on the allegations made in the view of the direction given by this Tribunal and the 5 Honourable Apex Court regarding the use of the water in that area under this project and what is the action taken on the basis of the direction give by the MoEF&CC as per letter dated
10.04.2019, before the next hearing."
3) I humbly submit that the petitioner herein has filed this application with a prayer to direct the 3rd and 7th respondents herein to implement the G.O. (Ms) No.18, Environment and Forests (FR.10) Department, dated 07.03.2008 by supplying the water drawn under 20 MGD Water supply scheme from Srivaikundaum village of Thoothukudi district through Closed conduit system to general public for drinking water purpose only. Further with interim prayer to pass an interim injunction to restrain 3rd and 7th respondent and their subordinates officers in utilizing and supply of water to industries.
4) I humbly submit that the Hon'ble National Green Tribunal, Principal Bench, New Delhi earlier on the Original Application No.128/2017 (SZ) filed by the petitioner herein has passed the following orders on 28.11.2018:-
"9. Considering the admitted facts and the circumstances set out above, we direct the TWAD to forthwith prohibit the use of the water drawn against the forest clearance for 0.055 ha which admittedly has been granted only for the purpose of drinking water making it quite clear that any other order passed by this Tribunal earlier contrary to this shall hereby superseded.
10. We also clarify that by this order, we do not prohibit use of water for drinking purpose by the housing colonies, schools, hospitals, etc.
16. With the above directions, the application stands allowed."
5) It is respectfully submitted that a copy of the above said order was received by the District Forest Officer, Thoothukudi herein on 19.12.2018. Thereafter a copy of the above said order was sent to the Executive Engineer, TWAD Board, Maintenance Division, Thoothukudi by the District Forest 6 Officer, Thoothukudi along with his letter No.D/2016/2017, dated 19.12.2018 with instructions to implement the order dated 28.11.2018 of the Hon'ble National Tribunal, Principal Bench in letter and spirit.
6) It is respectfully submitted that a representation dated 17.11.2018 was received from the petitioner to take action against (1) the TWAD Board Officials, Thoothukudi, (ii) The District Collector, Thoothukudi, (iii) The District Forest Officer and other State Government officials for illegal supply for drinking water to industries for industrial purposes in violation of G.O. (Ms) No.18, Environment and Forests (FR.10) Department dated 07.03.2008 under the provisions of Prevention of Corruption Act, 1980 and the Environmental (Protection) Act, 1986 and also requested not to consider the proposal made by the TWAD Board, Thoothukudi for diversion of Forest land in Sy. No.600 in Srivaikundam Village, Thoothukudi for non-forest purpose for the existing 20 MGD Water Supply Scheme Closed Conduit System to supply the water to industries. In the meantime, the petitioner filed the Writ Petition No.31254/2018 before the Hon'ble High Court, Madras praying directions to constitute Special Investigation team to investigate illegalities committed by the officials when the pending of Application No.128 of 2017 filed by him before the National Green Tribunal (Southern Zone) Chennai seeking the implementation of Government order in question.
7) I humbly submit that against the order dated 28.11.2018 passed by the Hon'ble National Green Tribunal the M/s. Southern Petrochemical Industries Corpn. Ltd., Alkali Chemicals, Thoothukudi, Thermal Power Project, Dharangathara Chemicals work, SIPCOT, Zirconium Titanic Sponge Plant, Heavy water plant and Port trust etc. approached the Hon'ble Supreme Court of India in Civil Appeal No.11935/2018 and batch cases dated 06.12.2018 and the Hon'ble Supreme Court of India gave direction vide order dated 04.02.2019 and the same read as follows:-
"20. In our view, it would be necessary for this Court to 7 put in place an administrative mechanism that would ensure that a decision to release water for industrial purposes is monitored by the Collector of the District who shall conduct a due verification of the data which is available with the TWAD Board. The Collector should independently assess the situation so as to ensure that the need for drinking water and irrigation is not compromised.
21. We, accordingly, direct that within a period of one week from today the Collector responsible for Thoothukudi division shall convene a meeting of all the concerned departments, including the Public Works Department, the Irrigation Department and the TWAD Board. The Collector shall ascertain whether any surplus water is available after fully meeting the requirement for drinking water. The collector shall conduct a fortnightly review of the position thereafter to determine as to whether any further direction or modification is required to meet the exigencies of the situation. If the Collector does find that the data which has been produced is adequate to sustain the conclusion in regard to the availability of surplus water after fully satisfying the need for drinking water, directions may be issued for allocating a suitable quantity of water for industrial purposes. We reiterate that this should be without in any manner compromising the present and anticipated drinking water needs of the residents of the district concerned. Until the Collector takes a decision and for one week from today we restore the position as it obtained under the interim order of the Tribunal dated 07 July 2017 to facilitate the supply of water for industrial purposes, including for the Thoothukudi Thermal Power Plant. This is subject to the condition that drinking water requirements are fully meet on priority. Thereafter, parties shall abide by the decision of the Collector. Until the Collector takes a decision, the interim order which we have passed in the case of Thoothukudi Thermal Power Plant shall also continue in operation.
22. Insofar, as the proposal under the Forest (Conservation) Act, 1980 is concerned, we are apprised that 8 TWAD Board had forwarded it to the State Government on 11 June 2018. We have been apprised that there were communications between the State Government and the Board with a view to rectifying certain deficiencies in the proposal. Be that as it may, we direct that within a period of two weeks from today, a joint meeting be held of the representatives of the State Government and of the TWAD Board to resolve the issue. The proposal shall thereupon be forwarded to MoEF&CC within three weeks from today. The competent authority shall take a decision on the proposal in accordance with law within a period of two months thereafter. Any allocation of water for industrial purpose in the meantime shall abide by such final decision as may be arrived at by the Union of India after considering the proposal. We have not expressed any opinion on the merits of such a proposal."
8) I humbly submit that as per the directions of the Hon'ble Supreme Court's order dated 04.02.2019, the District Collector, Thoothukudi (Respondent No.6) is conducting the meeting with the public works department and Tamil Nadu Water Supply and Drainage Board officials every fortnight starting from 13.02.2019 to till date promptly to assess the water availability for drinking and irrigation purposes and analyzing the data furnished by the Public Works Department and Tamil Nadu Water Supply and Drainage Board and considering the previous year data with due importance to the drinking water needs came out with availability of surplus water in the respective fortnight. Out of the total requirement of 20 MGD Water Supply Scheme, an average of 7 MGD quantity is being pumped primarily for the Drinking purposes of the Industrial Townships, Schools, Hospitals and Colonies and for Industrial purpose. Based on this, the District Collector is giving directions to release suitable quantity of water for drinking and industrial purpose from 20 MGD Water Supply Scheme fortnightly.
9) I humbly submit that as per the Government of India guidelines, a penalty amount of Rs.1,97,468/- has been fixed 9 and collected from the User Agency, (i.e.) Tamil Nadu Water Supply and Drainage Board for the violations committed by the User Agency by usage of excess forest area of 0.025 Ha. and by supply of water to industries other than allowed by State Government orders and the User Agency has deposited the said amount in the CAMPA Account on 06.12.2018.
10) I humbly submit that as per the direction of the Hon'ble Apex Court's Order dated 04.02.2019, a review meeting was conducted on 18.02.2019 along with the officials of Forest Department and Tamil Nadu Water Supply and Drainage Board. In the said review meeting the Principal Chief Conservator of Forests was requested to send this reply on certain clarifications sought for by the Government vide letter No.20575/Fr.10/2018-1 dated 01.02.2019 in respect of the proposal for diversion of 0.08 ha of forest land in Srivaikundam Forest block reserved land in Thoothukudi Forest Division, Thoothukudi District for 20 MGD Closed Conduit Scheme, within the time limit specified by the Hon'ble Apex Court vide its order dated 04.02.2019. The Principal Chief Conservator of Forests (Respondent No.4) stated that the Additional Principal Chief Conservator of Forests in the Part-IV recommendation has recommended the diversion proposal for drinking water purpose only and not for usage of Industrial purpose, since the User Agency has violated the provisions of Forest (Conservation) Act, 1980 by usage of excess forest area of 0.025 ha. and by supply of water to industries other than allowed by State Government orders. Hence, the Principal Chief Conservator of Forests has also recommended the said proposal for drinking purpose only and not for industrial use for a period of 20 years, subject to certain conditions. Even though the proposed diversion of forest land was below 1 ha., the proposal was forwarded to the Government of India, Ministry of Environment, Forests and Climate Change, Regional Office (South Eastern Zone), Chennai for obtaining their concurrence vide Government Letter No.20575/FR.10/2018-9, dated 25.03.2019, since certain violations were committed by the User Agency by usage 10 of excess forest area of 0.025 ha. and by supply of water to industries other than allowed by State Government orders.
11) I humbly submit that the Government of India vide Letter F.No.TNB033/2019-CHN/0610, dated 10.04.2019 has stated that it is discernible that the State Government has recommended the proposal for drinking water purpose only, against the proposal of the User Agency for supply for water for both drinking and industrial purposes. The Government of India has informed that as per the existing guidelines issued by the Ministry of Environment, Forests and Climate Change, Government of India, the category of the project i.e. for drinking water purpose would fall under "General Approval" category for which the State Government itself in competent to deal with such proposals. Hence the Government of India has requested the State Government to take appropriate action on the subject proposal as per the provisions under Forest (Conservation) Act, 1980 and Rules/Guidelines issued there under.
12) I humbly submit that in the meantime the Managing Director, Tamil Nadu Water Supply and Drainage Board, Chennai has sent a representation to the Principal Chief Conservator of Forests wherein he has requested the Principal Chief Conservator of Forests to recommend the proposal to the State Government as already applied by him for the purpose of 20 MGD Water Supply Scheme for Industrial as well as drinking purpose, since applying the same proposal afresh once again will be a time consuming process. The Managing Director, Tamil Nadu Water Supply and Drainage Board has requested the Principal Chief Conservator of Forest for diversion of 0.08 ha. of forest land for providing water supply under 20 MGD Water Supply Scheme for drinking as well as Industrial purpose, which has been recommended by the Principal Chief Conservator of Forests and sent to the Government on 03.10.2019. On scrutiny of the proposal, certain documents along with the justification for recommending the proposal for drinking water purposes and the Industrial use have been called for from the Principal Chief Conservator of Forest in 11 Government Letter No.20575/Fr.10/2018-13, dated 15.10.2019. The report of the Principal Chief Conservator of Forests in this regard is awaited.
In view of the reasons and circumstances explained above, it is therefore humbly prayed that this Hon'ble Tribunal may be pleased to pass suitable orders on the application and thus render justice."
10. Respondents 3 & 7 filed reply affidavit contending as follows:-
"5. PARA WISE REPLY TO THE QUESTIONS OF LAW I. In reply to para 4.2, it is submitted that the 20 Million Gallon litters per Day (MGD) Water Supply Scheme was originally implemented during the year 1972 vide G.O.Ms No. 1211, Industries Dated 20.07.1972 based on the approval of the Government of Tamilnadu vide G.O.Ms.No. 2289, Public Works Department, Dated 12.1 1.1970 exclusively for Industrial Development in Tuticorin District. It clearly shows that 'High Power Committee' was formed for Tuticorin development by Tamilnadu Government which recommended after the detailed investigation by the State PWD, 20 MGD Water Supply Scheme by the drawal of water from river Thamirabarani through Arumugamangalam Tank near Iruvappapuram and the scheme is being functioned from the year 1974 onwards. The G.0.Ms.No. 18, Environment and Forest Department (FR10), Dated 07.03.2006 is related to the scheme only for the diversion of forest land in Srivaikuntam village due to the change of location of water drawal in the year 2008. The operation of 20 MGD Water Supply Scheme depends on the availability of surplus water after meeting out the drinking and irrigation needs. At the time of drought periods, the 20 MGD Scheme will be stopped generally. Lastly due to consecutive failures of North East Monsoon and South West Monsoon during 2016-17 acute droughts happened after 12 127 years in Tamirabharani Basin and Water Supply to Industries completely stopped for nearly 10 months from January 2017 to October 2017 with an aim to give priority to Drinking water needs of the Public. The water to the Industries is being supplied for both drinking and industrial purpose from the surplus water after meeting out the drinking and irrigation needs of the Public.
II. In reply to para 4.3 & 4.4, it is submitted that the 20 MGD Scheme had been designed and approved exclusively for the industries for their drinking and industrial purposes. So many other Water Supply Schemes (WSS) and Combined Water Supply Schemes (CWSS) having source in river Tamirabarani are functioning with its optimum level and the drinking water is being supplied to the general public without any interruption. 109 schemes (410 billion Litres per Day (MLD)) out of total 118 Schemes (550 MLD) are functioning with river source for providing drinking water to public in Tirunelveli, Thoothukudi and part of Virudhunagar Districts. TWAD Board is properly planning and monitoring in such a way fulfilling the drinking water needs to the public throughout the year and every year by pumping 90% to 100% of pumping the designed/earmarked quantity of the WSS except at the time of Drought periods due to the failure of Monsoons. Comparing to the Drinking Water needs of the 3 Districts, Tirunelveli, Thoothukudi and Virudhunagar Districts, this 20 NIGD scheme is very meagre quantity. So in no way the drinking water needs of 3 Districts be affected due to the supply by this 20 MGD WSS. Similarly water not supplied to the Industries even a single drop as against the scarcity in supply of drinking water. The Hon'ble Tribunal had granted stay for supply of water to industries by order dated 31.05.2017 but it was modified on 07.07.2017 by the Hon'ble Tribunal after getting clarity in this issue and the relevant portion of order is as follows.
"The Government of Tamilnadu while passing G.O.(Ms) No.18 Environment & Forests (FR 10) dept. dated 07.03.2008 has not chosen to mention other purpose like industrial 13 activities and restricted only for drinking purpose alone and for appears that there is a mistake in passing such order".
Also, the Hon'ble Tribunal admitted to maintain the existence and given instructions to the user agency in the meantime to approach the MoEF & CC seeking permission. Based on this, TWAD (User Agency) had applied online for seeking permission for Forest Land for the above 20 MGD WSS for Drinking and Industrial Purpose vide Proposal No. FP/TN/IND/34099/2018 on 11.06.2018.
III. In reply to paragraphs 4.5 - 4.6 it is submitted that duly adhering the conditions of Hon'ble Apex Court the user agency TWAD Board appraised the District Administration, Public Works Department, irrigation Department to ascertain the surplus water available in every fortnight. The District Collector, Tuticorin is conducting the meetings from 13.02.2019 onwards fortnightly to ensure the water availability and given suitable instructions for supplying the water to industries for its drinking and industrial use. The procedure is continued till date and the user agency is acting up on the instructions of District Collector every fortnight.
IV. In reply to paragraphs 4.7 to 4.8 it is an admitted fact therefore it is not required to give specific reply.
V. In reply to paragraphs 4.9 & 4.10, it is submitted in pursuance to the letter dated 10.04.2019, the Principal Chief Conservator of Forests sent a letter on 01.10.2019 to the Principal Secretary to Government, Environment and Forests Department, the contention of the letter is as follows: -
"In continuation of this office reference 8ᵗh cited and with reference to the representation made by the user agency, (TWAD). I recommend the proposal for providing water supply for drinking as well as Industrial purpose. I request that the approval of Govt. of India for the above proposal for diversion of forest land of 0.08ha for the purpose of 20 MGD WSS for "Industrial purpose as well as drinking purpose" may kindly be obtained and communicated. Hence it is humbly submitted that the online proposal No. F.8/TN/IND/3409/2018 by the user 14 agency is under consideration of both State and Central Governments.
VI. In reply to the para 4.11, the contentions, averments & statement made thereon is wrong and denied. It is submitted that the 20 Million Gallon litters per Day (MGD) Water Supply Scheme was originally implemented during the year 1972 vide G.0.Ms No. 12.11, Industries Dated 20.07.1972 based on the approval of the Government of Tamilnadu vide G.O.Ms.No. 2289, Public Works Department, Dated 12.11.1970 exclusively for Industrial Development in Tuticorin District. It clearly shows that 'High Power Committee' was formed for Tuticorin development by Tamilnadu Government which recommended after the detailed investigation by the State PWD, 20 MGD Water Supply Scheme by the drawal of water from river Thamirabarani through Arumugamangalam Tank near Iruvappapuram and the scheme is being functioned from the year 1974 onwards. The G.O.Ms.No. 18, Environment and Forest Department (FR10), Dated 07.03.2008 is related to the scheme only for the diversion of forest land in Srivaikuntam village due to the change of location of water drawal in the year 2008. The operation of 20 MGD Water Supply Scheme depends on the availability of surplus water after meeting out the drinking and irrigation needs.
VII. In reply to para 4.12, the contentions, averments and statement made thereon are wrong, disputed and denied. It humbly submitted that as per the status of proposal submitted by the user agency clearly shows that the proposal is pending with the State Government as on date. The PCCF (HOD) has given recommendations to the Principal Secretary to Government (Environment and Forest Department) on 01.10.2019. The submission of proposal to Government of India is still under process by the State Government now. The water supply to the industries cannot be stopped since the MoEF, Government of India has not rejected the proposal or else the decision yet to be finalized. Moreover as stated in the reply to the para 4.1 1 the water to the Industries supplied from 20 15 MGD WSS based on the G.O.Ms.No. 2289, Public Works Department, Dated 12.11.1970 exclusively for Industrial Development in Tuticorin District and G.O.Ms No. 1211, Industries Dated 20.07.1972. The G.0.Ms.No. 18, Environment and Forest Department (FR10), Dated 07.03.2008 is related to the scheme only for the diversion of forest land in Srivaikuntam village due to the change of location of water drawal in the year 2008.
VIII. In reply to para 4.13, the contentions, averments and statement made thereon are wrong, disputed and denied. It is submitted that the detailed reply has been submitted to the 4th respondent for the letter D/2016/2017 dt 3.8.2017, justifying the facts of the use of water drawn under the 20 MGD scheme. Considering the facts the 4th respondent has given recommendations for the use of both drinking and industrial purpose. Following that the PCCF (E&F) has submitted the recommendations to the State Government on 01.10.2019 that "I recommend the proposal for providing water supply for providing water supply for drinking on well on industries purpose. I request that the approval for GOVT. OF INDIA for the above proposal for diversion for forest land of 0.08h for the purpose of 20MGD WSS for Industrial purpose as well as drinking purpose may kindIy be obtained and communicated early"
IX. In reply to para 4.14, the contentions, averments and statement made there on are wrong, disputed and denied. In the Counter Affidavit referred by the applicant, the paragraph 9 is as follows: - "9. That it is humbly submitted that, in case, the user agency wants to draw water from the diverted area for both drinking and industrial purpose, then the State Government of Tamil Nadu needs Lo revoke the approval accorded for the project for diversion of 0.055 ha in favour of Tamil Nadu Water Supply and drainage Board, Thoothukudi under General approval category and may submit the requisite fresh diversion proposal under Section 2 of the Forest (Conservation) Act, 1980 to the Regional Office, Ministry of 16 Environment, Forests and Climate Change, Chennai seeking approval of the Government of India and the same may be considered by the Government of India as per the provisions under Forest (Conservation) Act, 1980."
The user agency has already applied online on 11.06.2018 itself and the proposal is under consideration at the State Government based on the recommendations of PCCF letter No. TS4/24793/2018, dated 01.10. 2019. It is also submitted that the Hon'ble Tribunal admitted the user agency's appeal on 7.7.2017, on the clarity of previous history and ordered that "the Industries should not be allowed to run out of water" Also the Hon'ble Tribunal point out that "Mr.Syed Nurullah Sheriff, learned counsel appearing for the MoEF & CC has referred to various circulars issued by the MoEF & CC which include the proceedings dated 03.01.2005 which is the Government of India has permitted diversion for forest land for non-forest purpose" The official from MoEF appeared before the Hon'ble Tribunal on 07.07.2017 has also promised that the proposal seeking permission for Industries will be considered the application received from the user agency. Hiding the facts, the applicant is giving partial information to this Hon'ble Tribunal.
X. In reply to paragraphs 4.15 the contentions, averments and statement made thereon are wrong, disputed and denied. It is humbly submitted that the final order dated 28.1 1.2018 of this Hon'ble Tribunal was challenged by the TWAD Board and others before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India vide its order dated 04.02.2019 has passed the following directions: -
20. In our view, it would be necessary for this Court to put in place an administrative mechanism that would ensure that a decision to release water for industrial purposes is monitored by the Collector of the District who shall conduct a due verification of the data which is available with the TWAD Board. The Collector should independently assess the situation 17 so as to ensure that the need for drinking water and irrigation fs not compromised.
21. We, accordingly, direct that within a period of one week from today the Collector responsible for Thoothukudi division shall convene a meeting of all the concerned departments, including the Public Works Department, the Irrigation department and the TWAD Board. The Collector shall ascertain whether any surplus water is available after fully meeting the requirement for drinking water. The Collector shall conduct a fortnightly review of the position thereafter to determine as to whether any further direction or modification is required to meet the exigencies of the situation. If the Collector does find that the data which has been produced is adequate to sustain the conclusion in regard to the availability of surplus water after fully satisfying the need for drinking water, directions may be issued for allocating a suitable quantity of water for industrial purposes. We reiterate that this should be without in any manner compromising the present and anticipated drinking water needs of the residents of the district Concerned. Until the Collector takes a decision and for one week from today we restore the position as it obtained under the interim order of the Tribunal dated 7 July 2017 to facilitate the supply of water for industrial purposes, including for the Tuticorin Thermal Power Plant. This is Subject to the condition that drinking water requirements are fully met on priority. Thereafter, parties shall abide by the decision of the Collector. Until the Collector takes a decision, the interim order which we have passed in the case of Tuticorin Thermal Power Plant shall a/So continue in operation.
22. Insofar as the proposal under the Forest (Conservation) Act 1980 is concerned, we are apprised that TWAD Board had forwarded it to the State Government on 11 June 2018. We have been apprised that there were communications between the State Government and the Board with a view to rectifying certain deficiencies in the 18 proposal. Be that as it may, we direct that within a period of two weeks from today, a joint meeting be held of the representatives of the State Government and of the TWAD Board to resolve the issue. The proposal shall thereupon be forwarded to MoEF&CC within three weeks from today. The competent authority shall take a decision on the proposal in accordance with law within a period of two months thereafter.
Any allocation of water for industrial purposes in the meantime shall abide by such final decision as may be arrived at by the Union of India after considering the proposal. We have not expressed any opinion on the merits o f such a proposal."
XI. In reply to paragraph 4.16 the contentions, averments and statement made thereon are wrong, disputed and denied. It is submitted that the contention about the power of State Government, to permit to utilize the forest land is false. With the concurrence of union of India, the State Government have empower to give permission for utilization the forest land for non-forest purpose up to 1Ha under general approval vide the guidelines of Government of India MoEF F.No. 11.9/98/FC dated 3.1.2005. In the said guidelines for diversion of forest land for non-forest purposes under the Forest (Conservation) Act, 1980 -- General approval under Section 2 of Forest (Conservation) Act, 1980 in conditions no. VIII is as follows: -
"(VIII) The user agency will seek permission for diversion of forest land duly recommended by Principal Chief Conservator of Forests, from the State/L/T Government."
The user agency has already applied online on I 1.06.2018 itself vide proposal No. FP/TN/IND/34099/2018 and the proposal is under consideration at the State Government based on the recommendations of PCCF letter No. TS4/24793/2018, dated 01.10.2019.
XII. In reply to the para 4.17 it is submitted that the District Collector frequently convening the meeting with all the District Heads of TWAD Board, PWD, Revenue, DRDO and 19 Health to know the water supply status and other issues. In every meeting, the District Collector used to give instruction in regard to utilization of water, based on the availability in the storage dams and the rainfall due to the NE and SW monsoons. After 2012, several meetings have been conducted by the District Collector and TWAD officials participated. It is further submitted that the District Collectors of Tirunelveli and Tuticorin District ordered to stop pumping for Industries from 20 MGD Scheme in the year 2017 only due to the acute drought as monsoons failure. As per the directions of the Hon'ble Supreme Court of India in order dated 04.02.2019, the District Collector, Thoothukudi is conducting the meeting with the PWD and TWAD Officials every fortnight starting from 13.02.2019 to till date promptly to assess the water availability after fully meeting the requirement of water for drinking and irrigation purposes at the District Collector's Chamber, Thoothukudi. In every fortnight meeting convened by District Collector, the PWD officials are reporting the availability of water in the dams, expected inflow details and the requirement for irrigation needs in the respective fortnight. The TWAD Officials are reporting the requirement of water for the drinking and industrial purpose in the respective fortnight. The District Collector on analyzing the datas furnished by the PWD and TWAD Officials after considering the previous year data with due importance to the drinking water needs came out with availability of surplus water in the respective fortnight. Out of the total requirement of 20 MGD Water Supply Scheme, only an average of 7 MGD quantity is being pumped primarily for the Drinking purpose of the Industrial Townships, Schools, Hospitals and Colonies and for Industrial purpose. Based on this, the District Collector is giving directions to release suitable quantity of water for drinking and Industrial purpose from 20 MGD Water Supply Scheme fortnightly.
XIII. In reply to the para 4.18 it is humbly submitted that interpreting the real facts, the applicant is giving wrong view to 20 this Hon'ble Tribunal. In fact the District Administration is giving proper instruction to the user agency to restrict the water supply to the Industries whenever the shortage in water to the public and agriculture occurred. Also, the District Collector, Tuticorin suggested the industries that they should be gone to their own source by establishing desalination plant to overcome the crisis occurred during the bad monsoon and availability of water get fall.
XIV. In reply to paragraphs 4.19 to 4.21, the contentions, averments and statement made thereon are wrong, disputed and denied. It is humbly submitted that the requirement of water to TTPS for generating thermal power is currently supplied by the user agency, having the response by agreement made with them.
XV. In reply to para 4.22, the contentions, averments and statement made thereon are wrong, disputed and denied. It is humbly submitted that as per the norms prescribed by the Government of India, the water is being supplied to the Public by various schèmes maintained by the user agency TWAD and by the local bodies. It is further submitted that the water for Drinking, Irrigation and other Industrial purposes for Tirunelveli and Thoothukudi Districts is depending on Tamirabarani River for which water is released from three (3) Dams namely (i) Papanasam Dam (ii) Servalaru Dam (iii) Manimuth uar Dam. AII the water supply schèmes and Combined Water Supply Schèmes (CWSS) of Tirunelveli and Thoothukudi Districts having sources in river Tamirabarani are functioning with its optimum level and the drinking water is being supplied to the public without any interruption. It is further humbly submitted that 109 schemes (410 million Litres per day (MLD)) out of total 118 schemes (550 MLD) are functioning with river source for providing water to the public of Tirunelveli, Thoothukudi and part of Virudhunagar District. The true copy of the Details of Water Supply Schemes from Tamirabarani River Source is marked and annexed herewith as ANNEUXRE R-27 21 The true copy of the Map containing the head works locations of 118 comprehensive Water Supply Schemes in Tamirabarani River (No. 109 is the 20 MGD Scheme) is marked and annexed herewith as ANNEXURE R-28 The true copy of the Flow Diagram of 20 MGD Water Supply Scheme through Closed Conduit System is marked and annexed herewith as ANNEXURE R-29.
XVI. In reply to paragraphs 4.23 to 4.26, the contentions, averments and statement made thereon are wrong, disputed and denied. It is submitted that as per the details furnished by the Tuticorin Corporation Authorities, on 14.11.2019, 54.23 MLD of drinking water supplied to Tuticorin Corporation at an average of 136 LPCD daily for the population of 372408. For the entire 19 Town Panchayats of Tuticorin district which is having population of 269536, 20.31 MLD of drinking water was supplied at an average of 75 LPCD as per the water supply status furnished by the Town Panchayat Authorities. Tuticorin district is having 2 municipalities; Kayalpattinam Municipality is having population of 40542 and 3.65 MLD of water supplied at an average of 90 LPCD. For Kovilpatti Municipality having population of 95467 and 12.1 MLD of water supplied at 127 LPCD as on 14.11.2019. For Rural areas 69.79 MLD has been supplied for the 1762 Rural Habitations in 580 village panchayats and in 12 Blocks for the population of 968295 as on 10.01.2019 as furnished by the DRDA authorities. Hence for Rural areas in Tuticorin District Water supplied at an average of 72 LPCD which is more than 55 LPCD as per Government of India. It is further submitted that the TWAD and Local Body Authorities are supplying drinking water to entire Tuticorin District as per the norms fixed by Govt. of India.
XVII. In reply to paragraph 4.27, the contentions, averments and statement made thereon are wrong, disputed and denied. It is submitted that the appellants well aware that 22 the requirement of 20 MGD Water Supply Scheme is only 37 cusecs for the entire scope of design but the actual requirement at the optimum level considering the present consumption of industries is not exceeding 25 cusecs. Though the scheme designed for 20 MGD i.e., 90 M LD, the total allotment of water to the industries as on date is only 17.442 MGD. On this, the Industries like SIPCOT (3 MGD for Sterlite), IndBharath Power Gen. Com. (0.166 MGD) are not functioning for the past one year due to various reasons. The NTPL have also given the consent to stop the supply of their need of water for 0.084 MGD. The net allotment in use at present is only 14.192 MGD (64.52 MLD) (or) 26.37 cusecs. The contention of cultivations shrunk to one season due to 20 MGD Scheme is totally false, since the total need of 20 MGD Scheme is 26.37 cusecs (64.52 MLD) only. Hence it is clearly understood that the need for 3 districts drinking water which is 550 MLD from Tamirabharani source and the stoppage of this 20 MGD water supply Scheme which is supplying 64.52 MLD only may not serve any public purpose and in fact the supply of 64.52 M LD will serve larger public interest.
XVIII. In reply to paragraphs 4.28 to 4.32, the contentions, averments and statement made thereon are wrong, disputed and denied. It is humbly submitted that all the Water Supply Schemes and Combined Water SupplySchemes (CWSS) having source in river Tamirabarani are functioning with its optimum level and the drinking water is being supplied to the public without any interruption. 109 Schemes (410 Million Litres per day (MLD) out of total 118 Schemes (550 MLD) are functioning with river source for providing drinking water to public in Tirunelveli, Thoothukudi and part of Virudhunagar Districts. The TWAD is properly planning and monitoring in such a way fulfilling the drinking water needs to the public throughout the year and every year by pumping 90O/o to 100% of pumping the designed/earmarked quantity of the WSS except at the time of drought periods due to the 23 failure of monsoons. Comparing to the drinking water needs of the 3 districts, Tirunelveli, Thoothukudi and Virudhunagar Districts, this 20 MGD scheme is very meagre quantity. So in no way the drinking water needs of 3 districts will not be affected due to the supply by this 20 MGD WSS. At the time of drought periods, the 20 MGD scheme has been stopped. Lastly, due to consecutive failures of North East Monsoon and South West Monsoon during 2016-17 acute drought happened after 127 years in Tamirabarani Basin and Water Supply to Industries completely stopped for 10 months from January 2017 to October 2017 with an aim to give priority to Drinking Water needs of the Public and provided more than 90O/o pumping of water supply in Tirunelveli district and nearly 50% to 70% pumping in Thoothukudi district. As per the rainfall data of Tamirabharani basin, only few years are monsoon failure years. It is further submitted that the priority will be given for drinking water needs and supply will be given to the public without interruption entire year by stopping pumping to industries.
XIX. In reply to para 4.33, the contentions, averments and statement made thereon are wrong, disputed and denied. It is humbly submitted that only after meeting out the drinking water needs for all the three districts Tirunelveli, Tuticorin and part of Virudhunagar, then only water will be released for irrigation. When compared to the irrigation purpose the drinking water needs are very meagre. As per the Government of Tamil Nadu PWD Water Resources Division, Micro Level Reappraisal Study of Tamirabarani River Basin report, the Srivaikudam Anaicut is the last Anaicut (Dam) across Tamirabarani River. The year wise surplus flow details of Srivaikundam Anaicut from 1970-2014 for the period of 45 years is studied and the average surplus quantity to sea is 14,839 MCFT (14.84 TMC). The maximum surplus quantity of 1,67,572 MCFT (167.57 TI'dC) as occurred in the year 2014. For the 3 years the quantity has exceeded 35.31 TMC. In 9 years the quantity 24 is in between 7.06 TMC and 17.66 TMC. In 6 years the surplus quantity is in between 3.53 TMC and 7.06 TMC. The surplus quantity is less than 3.53 TMC in 16 years. Out of 41 years of available date only in 3 years (1975, 1986, 2012) there was no surplus quantity at this Anaicut. The statistical analysis indicates that for 50% and 75% dependability, the surplus flow to sea is 6.53 TMC and 2.03 TMC respectively.
6. REPLY TO GROUNDS It is humbly submitted that the present Application is being filed with ulterior motive and no public interest is involved. The 20MGD Scheme is only mean for Drinking and Industrial use within the Industrial area where the several thousands of residential colonies, Schools, Dispensaries, and Canteens and drinking water for the laboures working in the industries. The drinking water supply to the general public has been carried out in other schemes and local bodies as stated supra. Therefore the present application is not maintainable both on facts as well as on law and the same is liable to be rejected by this Hon'ble Tribunal. With regard to the various grounds raised in the application, the same are denied and the reply is stated supra will hold good as for the sake of convenience is not repeated herein.
7. The Respondents Board humbly submit that it has reserved it rights to file additional affidavit along with relevant documents as and when it necessary.
8. The balance of convenience is in infavour of the respondents 3 and 7, if any interim order is passed it will affect the larger public interest of public sector undertakings of the Central and the State Governments and the other Industries; Huge investment made jointly by the Government sectors and the beneficiary industries like Thoothukudi Thermal Power Plant, Southern Petro Chemical Industrial Corporation, Thoothukudi Alkali Chemicals, Heavy Water Plant, State Industries Promotion Corporation of Tamil Nadu, 25 Dharangadhara Chemical works, Zirconium Industries etc for the project would be affected and intern will result in unemployment and Law & Order problems; Any obstruction in supplying the ingredients to the SPIC Industry will result the shortage of fertilizer to the farmers and will affect the total agricultural production of the country; In General, Production/ Manufacturing/ Generation of chemicals, Fertilisers, Electric power etc will be affected which in turn will affect the Country's industrial growth and economy; The livelihood of the domestic units like quarters related to above Industries, Schools, Housing Colonies, Hospitals etc available with the above industries would also get disturbed causing social economical problems and also Industrial growth in Thoothukudi District will be affected causing less employment opportunities and Economical imbalance among the people with the law and order problems.
In view of above, that there is no merit in the contentions raised by the applicant in the above Original Application and the same being bereft of any merits is liable to be dismissed with cost by this Hon'ble Tribunal in the interest of justice."
11. Seventh respondent also filed an additional reply affidavit which reads as follows:-
"1. I am the Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Maintenance Division, Thookudi and I am the 7th Respondent. I am filing this affidavit to submit the sequent development on the orders of the Hon'ble Court. The present Affidavit is being filed in pursuance to the order dated 02.03.2020 passed by this Tribunal in the above said original application.
2. It is most respectfully submitted that on 02.03.2020, this Hon'ble Tribunal passed the following order in Original Application No.33 of 2019 (SZ):-26
"2. However, considering the fact that the matter is under consideration of MoEF & CC, we feel that some more time can be granted. In the meantime, we direct District Collector, Tuticorin to submit a status report regarding availability of water and whether it is being distributed on the basis of the direction given by the Apex Court in this case for industrial purpose, after meeting the drinking purpose of the locality. District Collector must give the details of the quantity that is being supplied regularly from the date of disposal of the case by the Hon'ble Supreme Court bill date and also give a report regarding the availability of water during summer in that area within a period of one month by e-mail at [email protected]. Registry is directed to communicate this order to the District Collector, Tuticorin through e-mail so as to enable him to submit the report to this Tribunal."
3. It is most respectfully submitted that the District Collector, the 6th respondent has submitted the Report to Hon'ble National Green Tribunal, Chennai as per the directions of the Hon'ble Tribunal dated 02.03.2020. Herein has duly complied in the directions of the Hon'ble Supreme Court of India (dated 04.02.2019), the District Collector is covering the meeting with the PWD and TWAD Officials every fortnight starting from 13.02.2019 to till date promptly to assess the water availability after fully meeting the requirement of water for drinking and Irrigation purpose at the chamber of District Collector, Thoothukudi.
4. In every fortnight meeting convened by the Collector, the PWD Officials are reporting the availability of water in the dams, expected inflow details and the requirement for irrigation needs in the respective fortnight.
5. The TWAD Officials are reporting the requirement of water for the drinking and Industrial purpose in the respective fortnight. The District Collector on analyzing the datas furnished by the PWD and TWAD Officials after considering the previous year data with due importance to the drinking water needs come out with the availability of surplus water in the 27 respective fortnight.
6. Out of total requirement of 20 MGD Water Supply Scheme, only an average of 7 MGD quantity is being pumped primarily for the Drinking purpose of the Industrial Townships, Schools, Hospitals and Colonies and for Industrial purpose. Based on this, the undersigned is giving directions to release suitable quantity of water for drinking and Industrial purpose of 20 MGD Water Supply Scheme and the same is been reviewed fortnightly on the basis of the direction given by the Hon'ble Apex Court.
7. The last 3 years data for 2017, 2018 & 2019 shows that the actual rain fall for Tirunelveli District is in Excess (more than 20% of normal rainfall). In the year 2016 only, consecutive failure occurred for 3 monsoons and the rainfall is Deficient (-51% less than normal rainfall) and so acute drought happened during summer 2017. Due to the excess rainfall for the last three years there was surplus water available during the summer 2018 & 2019 and the availability of water will be in comfortable position for the forthcoming summer 2020 also. All the water supply scheme and combined water supply schemes (CWSS) of Tirunelveli and Thoothukudi with its optimum level and the drinking water is being supplied to the public without any interruption.
8. The water availability in Papanasam, Servalaru, and Manimutharu Dams are in compatible position for drinking, irrigation and industrial purposes of Thoothukudi District during this summer 2020 without any scarcity.
9. It is most respectfully submitted that, the State Government (SG), Environment and Forest Department, Chennai recommended the proposal of User Agency (TWAD) (Proposal No.FP/TN/IND/34099/2018) applied for diversion of 0.08 Ha of forest land in Srivaikundam Forest Block reserved land in Thoothukudi Forest Division on 23.12.2019 and sent the proposal to RO, GOI, MOEF&CC. Subsequently, the GOI had sought for Additional particulars/clarification from State Government on 20.01.2020. The district forest officer, 28 Thoothukudi submitted the Additional particulars/clarifications to PCCF through CCF, Tirunelveli. Now, as per the online status of the proposal shows that the proposal is pending with State Government. Due to the outbreak of COVID-19, the proposal which is under consideration is yet to be submitted to GOI.
10. Hence it is humbly prayed that this Hon'ble Tribunal may be pleased to adjourned the case for another two months as the movement of the considered proposal is delayed due to the reasons of outbreak of COVID-19."
12. As per order dated 02.03.2020, this Tribunal had directed the District Collector, Tuticorin to submit a status report regarding availability of water and details as to how the water is being supplied on the basis of the interim orders passed by the Hon'ble Apex Court and whether sufficient water will be available during summer so as to continue with the same.
13. The District Collector had filed the report which reads as follows:-
"With reference to the NGT order 5th cited, the following report is submitted.
As per the directions of the Hon'ble Apex Court's order dt.04.02.2019 (Reference 1st cited) the undersigned is conducting the meeting with the PWD and TWAD Officials fortnight starting from 13.02.2019 to till date promptly to assess the water availability after fully meeting the requirement of water for drinking and irrigation purpose at the chamber of District Collector, Thoothukudi.
In every fortnight meeting convened by the undersigned, the PWD Officials are reporting the availability of water in the 29 dams, expected inflow details and the requirement for irrigation needs in the respective fortnight.
The TWAD Officials are reporting the requirement of water for the drinking and Industrial purpose in the respective fortnight. The District Collector on analyzing the datas furnished by the PWD and TWAD Officials after considering the previous year data with due importance to the drinking water needs come out with the availability of surplus water in the respective fortnight.
Out of total requirement of 20 MGD Water Supply Scheme, only an average of 7 MGD quantity is being pumped primarily for the Drinking purpose of the Industrial Townships, Schools, Hospitals and Colonies and for Industrial purpose. Based on this, the undersigned is giving directions to release suitable quantity of water for drinking and industrial purpose from 20 MGD Water Supply Scheme fortnightly on the basis of the direction given by the Hon'ble Apex Court.
The Minutes of the 28 fortnightly from 13.02.2019 to 23.03.2019 along with the details of calculation of surplus water and distribution for Industrial purpose, after meeting the drinking purpose of the Public are enclosed herewith for ready reference.
Moreover, the requirement of water for the Drinking, Irrigation and Industrial purpose during this summer-2020 upto the period of June 2020 is comfortable and the calculation details are enclosed herewith for reference.
Out of the total requirement of 20 MGD WSS only around 7 MGD (1.12 Mcft/Day) quantity is being pumped now primarily for the drinking purpose of the industries and for the industrial purposes. For this the requirement for the above period upto June 2020 is less than 108 Mcft, whereas the available surplus water ascertained upto June is 3695.90 Mcft. Even if the forthcoming North East monsoon fails the available surplus water upto June will be 1363.10 Mcft (working sheet enclosed). Hence it clearly shows that, absolutely there is no scarcity for this year and surplus water available during the summer 2020 30 as explained above.
It is further submitted that the water for drinking, irrigation and other industrial purpose for Tirunelveli and Thoothukudi Districts is depending on Tambirabarani river for which water released from three Dams namely 1. Papanasam Dam, 2) Servalaru Dam and 3) Manimuthar Dam. All the 3 Dams are located in Tirunelveli District in which the Rain fall details from the year 2016 to 2019 (source: IMD, Chennai) are as follows.
The last 3 years data for 2017, 2018 & 2019 shows that the actual Rain fall for Tirunelveli District is in Excess (more than 20% of normal rainfall). In the year 2016 only, consecutive failure occurred for 3 monsoons and the rainfall is Deficient (-51% less than normal rainfall) and so acute drought happened during summer 2017. Due to the excess rainfall for the last three years there was surplus water available during the summer 2018 & 2019 and the availability of water will be in comfortable position for the forthcoming summer 2020 also. All the water supply schemes and combined water supply schemes (CWSS) of Tirunelveli and Thoothukudi District having sources in river Tamirabarani are functioning within its optimum level and the drinking water is being supplied to the public without any interruption.
In the context of the above circumstances the water availability in Papanasam, Servalaru, and Manimutharu Dams are in compatible position for drinking, irrigation and industrial purposes of Thoothukudi District during the summer 2020 without any scarcity.
Encl. 1) Minutes of the Collector's meeting from 13.02.2019 to 23.03.2019 - 28 Nos.
2) Working sheet for the requirement of water upto June 2020."
14. As per order dated 18.06.2020, this Tribunal had directed 31 both the State Government as well as the Ministry of Forest, Environment & Climate Change (MoEF&CC) to take a call on this aspect and dispose the proposal at the earliest at any date within a period of two months in accordance with law and submit the progress of the same to this Tribunal before the next hearing date and posted the case to today for that purpose.
15. When the matter came up for hearing today through Video Conference, Sri. Ritwick Dutta represented the applicant. Smt. M. Sumathi represented respondents 1 & 5, Sri. Mani Gopi represented respondents 2, 4 & 6, Sri. Arokiaraj represented respondents 3 & 7 and Smt. AR L. Gandhimathi represented the intervener industries in I.A. No.32/2019.
16. We have received a memo filed by the 7th respondent which reads as follows:-
"It is respectfully submitted, that the proposal for diversion of 0.08 Ha. of forest land for 20 MGD closed circuit scheme for water supply scheme in Thoothukudi District for drinking water as well as Industrial purpose in favour of the 7th respondent was sent by the Government of Tamil Nadu after clarifying the queries on 04.08.2020 to the Regional Office (South Eastern Zone) of the Ministry of Environment, Forest and Climate Change, Government of India.
It is submitted that the Regional Empowered Committee (REC) in its 42 nd meeting held on 14.08.2020 and after careful consideration of the proposal of the State Government had given the Central Government's in principle approval (Stage-I) under 32 Section 2 of Forest (Conservation) Act, 1980 for diversion of 0.08 Ha. of forest land for 20 MGD closed circuit scheme for water supply in Thoothukudi District for drinking as well as Industrial purpose in favour of the 7th respondent for a period of 25 years, subject to certain conditions. We are herewith enclosing the copy of the same for the kind consideration of this Hon'ble Tribunal.
Recording this MEMO the Hon'ble Tribunal may be pleased to pass suitable orders and thus render justice."
17. We have also received a letter sent by the MoEF&CC to the counsel appearing for the MoEF&CC along with the recommendations and decision of the committee in respect of this proposal stating that they have recommended for Stage I approval for the project proposal which reads as follows:-
"To Smt. M.Sumathi, Advocate for MoEF&CC in NGT, Chennai Subject: OA 33/2019 JOEL Vs. UOI and Ors. - Reg. Reference: The Hon'ble NGT, Chennai vide order dated 21.06.2020 in the O.A. No.33 of 2019 (SZ) Madam, Please refer to the subject and reference and it is to inform that the Hon'ble NGT, Chennai vide order dated 21.06.2020 in the O.A. No.33 of 2019 (SZ) directed both the State Government as well as the Ministry of Environment, Forest and Climate Change (MoEF&CC) to dispose of the proposal at the earliest at any date with in a period of two months in accordance with law and submit the progress of the same before this Tribunal before next hearing date.33
2. The RO,Chennai vide letter dated 20.01.2020 and reminder letters dated 07.07.2020 & 14.07.2020 has requested certain additional information. The State Government vide letter No.20575/FR.10/2018-21 dated 04.08.2020 furnished the following reply to the information by RO, Chennai.
3. The proposal submitted by the State Government for diversion of 0.08 Ha of forest land for 20 MGD closed circuit scheme for water supply scheme in Thoothukudi District for drinking well as Industrial purpose in favour of EE, TWAD Board, Thoothukudi along with additional information as mentioned in the para 2 above have been placed before Regional Empowered Committee (REC) in its 42 nd meeting held on 14.08.2020.
4. The Regional Empowered Committee (REC) considered the proposal and recommended for clearance under Forest (Conservation) Act, 1980 subject to certain conditions in addition to the standard conditions as applicable to such projects (Minutes of the meeting is attached as annexure I)
5. As recommended by the Regional Empowered Committee (REC) and after careful consideration of the proposal submitted by the State Government, the Regional Office (SEZ) MoEF&CC, Chennai vide letter No.4-TNB033/2019-CHN/651 dated 18.08.2020 conveyed the Central Government's in principle approval (Stage-I) under Section '2' of Forest (Conservation) Act, 1980 for diversion of 0.08 Ha of forest land for 20 MGD closed circuit scheme for water supply scheme in Thoothukudi District for drinking well as Industrial purpose in favour of EE, TWAD Board, Thoothukudi, for a period of 25 years, subject to certain conditions (Copy of the Stage I approval order is attached as annexure II)
6. In compliance to the Hon'ble, NGT, Chennai vide order dated 21.06.2020, I am directed to request to you that, action taken by Regional Office, Chennai on the proposal submitted by the State Government seeking prior permission of the Central Government under FCA, 1980 for diversion of 0.08 Ha of forest land for 20 MGD closed circuit scheme for water supply scheme 34 in Thoothukudi District for drinking well as Industrial purpose in favour of EE, TWAD Board, Thoothukudi District as stated in Para 5 above may be informed to the Hon'ble NGT, Chennai before next date of hearing.
It is further requested you that, with submission of the above facts may please defend the case in the interest of Govt. of India before the Hon'ble NGT and may to inform proceedings of the case to this office for appropriate action."
18. Second respondent filed the progress report as directed by this Tribunal which reads as follows:-
"2) I humbly submit that on 18.06.2020, the Hon'ble National Green Tribunal, Southern Zone, Chennai in Original Application No.33 of 2019 (SZ) has ordered as follows:-
"....7. We feel it appropriate, to direct both the State Government as well as the Ministry of Environment, Forest and Climate Change (MoEF&CC) to take a call on this aspect and dispose of the proposal at the earliest at any date with in a period of two months in accordance with law and submit the progress of the same before this Tribunal before the next hearing date."
3. I humbly submit that the Managing Director, Tamil Nadu Water Supply and Drainage Board has sent a proposal to the Principal Chief Conservator of Forests for diversion of 0.08 Ha of forest land for providing water supply under 20 MGD water supply scheme for drinking as well as industrial purpose, which has been recommended by the Principal Chief Conservator of Forests. The above said proposal was forwarded to Government of India, Ministry of Environment, Forests & Climate Change, Chennai for obtaining their concurrence vide Government letter dated 23.12.2019.
4. I humbly submit that the Government of India, Ministry of Environment, Forests and Climate Change in their letter dated 18.08.2020 have conveyed the in-principle (Stage-I) approval of the Government of India for diversion of 0.08 Ha of 35 forest land for 20 MGD closed circuit scheme for water supply scheme to Thermal Power Project, SIPCOT complex heavy water plant and other industries in Thoothukudi District for drinking as well as industrial purpose under Section 2 of Forest (Conservation) Act, 1980 in favour of the Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Thoothukudi for a period of 25 years, subject to following conditions and requested to furnish the compliance report after satisfying all the conditions stipulated therein within a period of 5 years.
i. Legal status of the diverted forest land shall remain unchanged.
ii. Demarcation of the proposed forest land shall be carried out by erecting 4 feet high cement concrete pillars duly numbered at an interval of 20 meters at the cost of User Agency.
iii. The Compensatory Afforestation (CA) shall be raised and maintained by the State Forest Department as proposed over 0.16 ha of degraded forests in Compt No.48, 49, Srivaigundam Range, Vallanadu Reserve Forests at the cost of the User Agency.
iv. Indentified Compensatory Afforestation land shall not be change without the prior approval of the Central Government.
v. The State Government shall change the Net Present Value (NPV) and Penal NPV as below, from User Agency as per the orders of the Hon'ble Supreme Court dated 28.03.2008 and 09.05.2008 in I.A. Nos.826 in 566 with related IA's in Writ Petition (Civil) No.202/1995.
a) Net present value for an area over 0.05Ha of forest area for which Government of Tamil Nadu accorded permission under Forest (Conservation) ?Act, 1980 the State Government vide G.O. (Ms). No.18, Environment and Forests (FT.10) Department, dated 17.03.2008, if not realized earlier.
b) State Government realize Net Present Value for an area of 0.025 Ha (the additional area being utilized by the User Agency) and to collect simple interest from the date of utilizing 36 of the said area till the date of deposition from the User Agency.
c) The State Government shall realize maximum penalty of 5 times the Net Present Value for the entire area of 0.08 Ha plus 12 percent simple interest till the deposit made as per the provisions made in the hand book 1.2 (ii) (a) (b) towards (penal NPV) vi. Additional amount of Net Present Value (NPV) of the diverted forest land if any, becoming due after revision of the same by the Hon'ble Supreme Court of India in future, shall be charged by the State Government from the User Agency, User Agency shall furnish an undertaking to this effect.
vii. The funds received from the User Agency towards compensatory afforestation, Net present Value and any money received in compliance of the conditions stipulated by the Central Government under this project shall compulsory be deposited in to the "State Compensatory Affoerstation Fund of Tamil Nadu State" by generating challan from the parivesh web portal viii. Clearance under Forest (Conservation) Act, 1980 is limited to diverting of forest area over 0.08 Ha for non-forestry purpose and water supply / allocation for drinking & industrial usage shall be regulated as per the Hon'ble Supreme Court of India directions and fortnightly reports of District Collector Thoothukudi in the matter to be sent to Regional Officer also for records without fail ix. The State Government shall issue advisory to Tamil Nadu Water Supply and Drainage Board directing not to involve in violation of Forest (Conservation) Act, 1980 in any matter. Copy of such advisory shall be submitted to the Regional Office, Chennai along with the compliance report.
x. Detailed report on calculation of Net Present Value & Penal Net Present Value to be collected from the User Agency shall be provided along with the compliance report.
xi. The State Government shall initiate disciplinary action as per the provisions made in hand book 1.21 (ii) (c) (d) against the officials belong to the User Agency and the Forest 37 Department for not being able to prevent use of forest lands for non-forestry purposes without the approval of Government of India.
xii. The State Government shall revoke the G.O. (Ms.) No.18, Environment and Forests (FR.10) Department, dated 17.03.2008 wherein had conveyed the approval under General approval category under Forest (Conservation) Act, 1980 for diversion of 0.055 Ha in favour of Tamil Nadu Water Supply and Drainage Board for drinking purpose and shall inform the same with supporting documents to the Regional Office.
xiii. The layout plan of the proposal shall not be changed without the prior approval of the Central Government.
xiv. The compliance report shall be uploaded on e-portal (https://parivesh.nic.in/ ) xv. The total forest area utilized for the project shall not exceed 0.08 Ha and the forest area diverted shall not be used for any purpose other than those shown in the diversion proposal.
xvi. The forest land proposed for diversion shall under no circumstances be transferred or subject to any other agency, department of person without prior approval of the Central Government.
xvii. User Agency and the State Government shall ensure compliance to provisions of the all Acts, Rules, Regulations and Guidelines and Court orders if any, for the time being in force, as applicable to the Project.
xviii. Any other conditions that the Central Government or DDG (Central) of Regional Office, Chennai may impose from time to time in the interest or afforestation, conservation and management of flora and fauna in the area, shall be complied by the User Agency.
xix. In the event of failure to comply with any of the above conditions, the User Agency is liable for penal action as per provision under the Forest (Conservation) Act, 1980 and guidelines made thereunder.
7. I humbly submit that with regard to other conditions, 38 the Principal Chief Conservator of Forests has been requested to submit a compliance report vide Government Letter No.20575/FR.10.2018-22, dated 22.08.2020. After the receipt of the compliance report from the Principal Chief Conservator of Forests, the proposal of the User Agency i.e. Tamil Nadu Water Supply and Drainage Board shall be processed by the State Government for grant of Stage II Clearance for the Tamil Nadu Water Supply and Drainage Board proposal by the Ministry of Environment, Forests and Climate Change, Government of India.
In view of the reasons and circumstances explained above, it is therefore humbly prayed that this Hon'ble Tribunal may be pleased to pass suitable orders on the application and thus render justice."
19. It is seen from the report submitted by the MoEF&CC as well as the State Government that for diversion of this scheme for industrial purpose was also considered by the MoEF&CC and in-principle (Stage - I approval) was granted under Section 2 of the Forest Conservation Act, 1980) and after complying with the conditions imposed in Stage-I approval they will have to issue Stage-II approval and on that basis, the State Government has to issue the final orders under Section 2 of the Forest Conservation Act, 1980.
20. So it is clear from this that the MoEF&CC has now proposed to accept the proposal of using this project for industrial purpose as well and the Stage-I clearance had already 39 been granted and other things are only formal things to be followed by the State Government on compliance with the conditions imposed in the Stage-I approval granted.
21. The learned counsel appearing for the applicant submitted that since the MoEF&CC has already granted in-principle (Stage
- I approval) this Tribunal can dispose of the matter and till the disposal of that proposal finally by the Government, the interim arrangement granted by the Hon'ble Supreme Court can be continued and the application can be disposed of accordingly leaving open the right of the applicant to challenge the final clearance granted in accordance with law..
22. So under such circumstances, recording the above submissions, we dispose of the application as follows:-
a. Since, the MoEF&CC had granted Stage-I approval for diversion of the NGD Scheme for drinking water purposes and the industrial purposes as well and the State Government is also processing the same on the basis of the Stage-I proposal granted, this Tribunal directs the District Collector, Tuticorin to continue with the supply of water for the industrial purpose as directed by the Hon'ble Apex Court in Civil Appeal 40 No.11935 of 2018 dated 04.02.2019 till final orders are passed by the State Government in this regard.
b. It is made clear that only if surplus water is available after meeting the drinking water purpose of the people, then only the District Collector is expected to supply the surplus water for industrial purpose.
c. The right of the applicant to challenge the final clearance granted under Section 2 of the Forest Conservation Act, 1980 is not to be affected by this order and that liberty of the applicant is left open.
23. The parties are directed to bear their respective costs in the application.
24. The Registry is directed to communicate this order to the District Collector, Tuticorin for strict compliance.
25. With the above directions and observations this application is disposed of.
......................................J.M. (Justice K. Ramakrishnan) ................................E.M. 41 (Shri. Saibal Dasgupta) O.A. No.33/2019, 11th September, 2020. Mn.
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