National Green Tribunal
Tribunal On Its Own Motion Regarding Non ... vs Union Of India Ministry Of Environment ... on 9 February, 2022
Item No. 02 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No. 18/2022/EZ
Tribunal on its Own Motion
Re.: Non-compliance of EC conditions by
2000 MW Lower Subansiri Hydel Project Applicant(s)
Versus
MoEF&CC & Ors. Respondent(s)
Date of hearing: 09.02.2022
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Suo Motu,
ORDER
1. An article has been published in the newspaper report of 'Indian Express' on 04.02.2022 wherein it is mentioned that for the 2000-MW Lower Subansiri Hydel Project, Assam Border - a key condition for clearance was laid down by the National Board for Wildlife (BNWL) and reiterated by the Supreme Court in 2004: protection of reserved forests in the catchment and the sub-mergence area by declaring a National Park or Wildlife Sanctuary. Central Water Commission reports estimated that the area would be 900 square kilometers.
2. It is stated that the Arunachal Pradesh Govt. dragged its feet and, therefore, the Ministry of Environment, Forest and Climate Change in 2007 quantified the area as 'not less than 500 square kilometers' but citing local opposition, the State in 2008 said that it could notify only 168 square kilometers as a sanctuary.
3. It is also stated that the Ministry agreed and asked the State to bring the remaining 332 square kilometers reserved forests under the category of conservation reserve, which is essentially a buffer zone. The Supreme Court has also accepted the modification in 2009. 1
4. It is further stated that the records investigated by the Indian Express, however, show that until now only 127 square kilometers in two unconnected patches have been notified as sanctuaries in the Subansiri basin: 49 square kilometers of Ringba-Roba in 2013 and 78 square kilometers of the Kamala reserved forest in 2015 and the conservation reserve has not been marked at all.
5. It is further stated that on December 16, 2021, the Ministry of Environment, Forest and Climate Change wrote to the State Govt. asking it to immediately furnish the compliance report of Forest Clearance conditions pending since 2004 but nothing has been done.
6. The Hon'ble Supreme Court by an order dated 19.04.2004 passed in I.A. No. 966 and I.A. No. 1012 in Writ Petition (C) No. 202 of 1995: T. N. Godaverman Thirumulpad Vs. Union of India & Ors., passed the following order in respect of the Hydroelectric Power Project contemplated in the Lower Subansiri area observing that the parties are agreed that the project proposed by the National Hydroelectric Power Corporation Ltd. May be permitted by the Ministry of Environment, Forest and Climate Change subject to fulfilling the following conditions:-
(i) The legal status of the sanctuary land i.e. 42 ha. will remain unchanged and will continue to be a part of the Sanctuary.
(ii) The Reserve Forest are that forms part of the catchment of the Lower Subansiri including the reservoir should be declared as a National Park/Sanctuary. NHPC will provide funds for the survey and demarcation of the same.
(iii) The extent of area to be declared, as National Park/Sanctuary will be decided by the State Government in consultation with the Ministry of Environment, Forests and associating reputed Forestry and Wildlife Experts.
(iv) The National Park/Sanctuary will be under the control of the Chief Wild Life Warden, Government of Arunachal Pradesh, to be 2 managed by an officer of the rank of the Deputy Conservator of Forest of Forests and above.
(v) The National Hydroelectric Power Corporation (NHPC) will provide funds for the relocation and re-settlement of the people, if any, residing inside the proposed National Park/Sanctuary at (ii) above, at sites outside the protected area on land earmarked for the purpose by the State Government in advance.
(vi) NHPC will make adequate arrangements for supply of fuel to the staff and workers engaged in the construction. Under no circumstance, fuelwood will be removed from the sanctuary or forest area.
(vii) There would be no construction of dam upstream.
(viii) The State Government will provide dedicated field staff for the management and protection of the National Park/Sanctuary, which will include adequate number of ACFs, RFOs, Foresters, Guards, and Watchmen etc. Requisite infrastructure, communication, equipments and other facilities will be provided to the staff and the officials. The entire cost i.e. Recurring and non-
recurring expenditure will be borne by NHPC for a period of ten years. The State Government will prepare and approve the Management Plan for the National Park/Sanctuary for a period of ten years and submit to the NHPC for funding support.
(ix) The NHPC will also ensure that there is no siltation down the Subansiri river during the construction phase. The spillage and diversion channels will be maintained as fish ladder.
(x) Under no circumstances, the excavated material will be dumped either in the river or any other part of the National Park/Sanctuary or the surrounding forests.
NHPC will also provide complete funds for reforestation of the degraded sites with indigenous species within the National 3 Park/Sanctuary and ensure that there is no siltation down the Subansiri River during construction phase.
In this view of the matter, the IAs stand disposed of."
7. Thereafter, it appears that some other I.A.s being I.A. Nos. 1362-63 in W.P. (C) No. 202 of 1995 were also filed in which the applicants of the applications sought modification of the Hon'ble Supreme Court's order dated 19.04.2004 passed in I.A. Nos. 966 and 1012. The Hon'ble Supreme Court has passed the following order:-
"6. By these interim applications, the applicant seeks modification of this Court's order dated 19-04-2004 passed in IAs Nos. 966 and 1012. The matter relates to the construction of Lower Subansiri Hydroelectric Project by NHPC. CEC has made some recommendations and subject to these recommendations the work has to be completed in the entire area of Lower Subansiri Project which will be declared as National park/Sanctuary. This is accepted and an affidavit to this effect is filed by the Deputy Inspector General (Wildlife), Government of India, wherein it is stated that any proposal in the upper stream of Subansiri River would be considered independently on its own merit by the Standing Committee as and when submitted by the proponents and the State Government would declare 168 sq. km. of reserve forest as sanctuary and make serious efforts to bring an additional area of 332 sq km reserved forest under the category of conservation reserve in consultation with MoEF. This suggestion is acceptable to the State Government and NHPC and subject to the following conditions the IAs are disposed of:
(i) Approval under the Forest Conservation Act for the project has been granted inter alia on the condition that the entire area upstream of Lower Subansiri Project will be declared as National park/Sanctuary;
(ii) The Standing Committee of NBWL has cleared the project on the condition that the reserve forest area in the catchment of the project will be declared as National park/Sanctuary; 4
(iii) The conditions imposed by this Court are identical to the conditions on which the project has been cleared under the Forest Conservation Act and by NBWL. These conditions were known to the State of Arunachal Pradesh and a compliance report was also sent by them;
(iv) This Court's order is a consent order which reiterates the conditions already imposed by MoEF and to which applicant State had already agreed to comply with."
8. Thereafter, again the Hon'ble Supreme Court passed order on the IAs Nos. 1362-63 in W.P. (C) No. 202/1995 reported in (2009) 17 SCC 776 (T.N. Godaverman Thirumulpad Vs. Union of India):-
"10. The order passed by the Court on 10-07-2009 is varied to the following extent.
11. By these interlocutory applications, the applicants seek modification of this Court's order dated 19.04.2004 passed in IAs Nos. 966 and 1012. The matter relates to the construction of the lower Subansiri Hydro Electric Project by NHPC. The CEC made some recommendations. Pursuant to the order dated 21.07.2006 the matter was referred to the Standing Committee of the National Board of Wild Life. An affidavit is filed by the Deputy Inspector General (Wildlife), Government of India dated 18.03.2009 putting the decision of the Board on record.
12. It is stated that any proposal in the upper stream of Subansiri River would be considered independently on its own merit by the Standing Committee as and when submitted by the proponents and the State Government would declare 168 sq km of reserve forest as sanctuary and make serious efforts to bring an additional area of 332 sq km reserved forest under the category of conservation reserve in consultation with MoEF.
5
13. This suggestion is acceptable to the State Government and NHPC and IAs are disposed of and Conditions (i) and (vii) are substituted by the following:
(i) Any proposal in the upper stream of Subansiri River would be considered independently on its merit by the Standing Committee as and when submitted by the proponents.
(ii) The State Government would declare 168 sq km immediately as sanctuary and make serious efforts to bring additional 332 sq km reserve forests under the category of conservation reserve in consultation with MoEF."
9. Considering the allegations made in the newspaper article reported in 'Indian Express' on 04.02.2022, we take suo-motu notice of this case and direct that notices be issued to the following parties who shall be arrayed in the array of Respondents:
(1) Union of India, Ministry of Environment, Forest and Climate Change, through Secretary, New Delhi;
(2) State of Arunachal Pradesh, Through Chief Secretary, (3) Principal Chief Conservator of Forest & Head of Forest Force, Govt. of Arunachal Pradesh;
(4) Additional Chief Secretary/Principal Secretary, Department of Environment & Forest; Govt. of Arunachal Pradesh;
(5) National Hydroelectric Power Corporation Ltd. (NHPC), through its Chairman & Managing Director, (D & E and Environment), NHPC Limited, NHPC Office Complex, Sector-33, Faridabad - 121003, Haryana.
10. All the respondents shall file their counter-affidavits within four weeks.
11. List on 23.03.2022.
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B. Amit Sthalekar, JM ...................................
Saibal Dasgupta, EM February 09, 2022 Original Application No. 18/2022/EZ AK 6