National Green Tribunal
Hussain Saleh Mahmad Usman Bhai Kara vs Gujarat State Level Eia Authority And ... on 9 February, 2012
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BEFORE THE NATIONAL GREEN TRIBUNAL
NEW DELHI,
(PRINCIPAL BENCH)
1. Appeal No. 19/2011(T)
1. Husain Saleh Mahmad Usman Bhai Kara Appellant(s)
2. Bhikhabhai Nathubhai Nagdan Ahir
3. Jadeja Kirit Singh Narubha Karubha
4. Amirnaben Ibrahim Salehmamad Manjalia
Versus
1. Gujarat State Level Environment Impact Assessment Authority
2. Gujarat Pollution Control Board
3. M/s OPG Power Gujarat Pvt. Ltd. Respondent(s)
For Appellants
Mr. Raj Panjwani, Senior Advocate
Mr. Ritwick Dutta, Advocate &
Mr. Rahul Choudhary, Advocate
For Respondents
Ms. Hemantika Wahi, Advocate for R - 1 & R - 2
Mr. Krishnan Venugopal, Sr. Advocate with
Mr. Manu Seshadri, Advocate &
Mr. Aman Gupta, Advocate for R - 3
2. Appeal No. 37/2011
1. Bhikhalal Nathubhai Nagdan Ahir Appellant(s)
2. Kiritsinh Narubha Jadeja
3. Husain Saleh Mahmad Usman Bhai Kara
Versus
1. Union of India
2. State of Gujarat
3. M/s OPG Power Gujarat Pvt. Ltd. Respondent(s)
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For Appellants
Mr. Raj Panjwani, Senior Advocate
Mr. Ritwick Dutta, Advocate &
Mr. Rahul Choudhary, Advocate
For Respondents
Ms. Neelam Rathore, Advocate for R - 1
Ms. Hemantika Wahi, Advocate for R - 2
Mr. Krishnan Venugopal, Sr. Advocate with
Mr. Manu Seshadri, Advocate &
Mr. Aman Gupta, Advocate for R - 3
3. Application No. 32/2011
Husain Saleh Mahmad Usman Bhai Kara Applicant
Versus
1. Union of India
2. State of Gujarat
3. M/s OPG Power Gujarat Pvt. Ltd. Respondent(s)
For Applicants
Mr. Raj Panjwani, Senior Advocate
Mr. Ritwick Dutta, Advocate &
Mr. Rahul Choudhary, Advocate
For Respondents
Ms. Neelam Rathore, Advocate for R - 1
Ms. Hemantika Wahi, Advocate for R - 2
Mr. Krishnan Venugopal, Sr. Advocate with
Mr. Manu Seshadri, Advocate &
Mr. Aman Gupta, Advocate for R - 3
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JUDGMENT
PRESENT:
Justice A.S. Naidu (Acting Chairperson) Shri Vijai Sharma (Expert Member) ................................................................................................................
Dated 8th February, 2012 ..............................................................................................
JUDGMENT BY THE BENCH The matter in the aforesaid two Appeals as well as the Application, relates to setting up of a 300 MW (2 x150 MW) imported / Indian Coal Based Thermal Power Plant at Village Bhadreshwar, Taluka Mundra, District Kutch, in the State of Gujarat by OPG Power Gujarat Pvt. Ltd. The facts of all the aforesaid three cases being similar, by consent of parties, the same were heard together and are disposed of by this common judgment.
2. In NGT Appeal No.19/2011, (NEAA Appeal No. 22/2010) four Appellants claiming to be fishermen, Saltpan worker, and residents of Bhadreshwar Village respectively assailed the Environmental Clearance (EC) granted in favour of M/s OPG Power Gujarat Pvt. Ltd. Respondent No.3 in the said appeal, by the Gujarat State Level Impact Assessment Authority, vide letter dated 11th June, 2010, for setting up the Thermal Power Plant. In the Memorandum of Appeal, several allegations were made and grounds taken challenging the EC, and a prayer was made to quash the order.
3. Appeal No.37/2011 was filed by three Appellants, assailing the grant of CRZ clearance for the proposed intake and outfall of sea water by M/s OPG Power Gujarat Pvt. Ltd. for utilisation in the power 4 plant proposed to be set up at Village Bhadreshwar. The said clearance was granted vide letter dated 16th September, 2011 by the Ministry of Environment and Forests (MoEF). Out of the three Appellants, two being Husain Saleh Mahmad Usman Bhai Kara and Bhikabhai Nathubhai Nagdam Ahir, are also Appellants in Appeal No.22/2010.
4. Application No.32/2011 was filed by Husain Saleh Mahmad Usman Bhai Kara, alleging violation of the provisions stipulated under Schedule-1 of National Green Tribunal Act, 2010, namely the violation of Environment Protection Act, 1986 and specially the conditions stipulated in EC granted to the Thermal Power Plant set up by M/s OPG Gujarat Power Ltd., and also violation of the guidelines issued under the Forest (Conservation) Act, 1980.
5. In the said Application, it is averred that EC was granted by the Gujarat State Level Environment Impact Assessment Authority without insisting upon Forest Clearance (FC) though the project area of Respondent No.3 include reserved forest. Number of other allegations are also made with regard to suppression of true facts from the authorities.
6. Respondent No.3, being the contesting Respondent, filed detailed replies in all the three cases, strongly repudiating the allegations made by the Appellants/Applicant. According to the said Respondent nothing was concealed or suppressed, in fact, the entire area where the project is proposed to be constructed do not involve forest land. Further, it is averred that according to the project plan, Respondent No.3 was proposing to utilize water from the sea and the said water was proposed to be conveyed by laying pipelines. The said pipelines had to pass through a patch of forest land. Therefore, an application was filed for permission to utilize the forest land for non-forest 5 purposes under the Forest (Conservation) Act, 1980. Similarly an application was also made to grant CRZ clearance.
7. The State Level Environment Impact Assessment Authority according to Respondent No.3 after examining the viability of the project and following the requirements, by letter dated 11th June, 2010 granted EC to the project under the provisions of EIA Notification, 2006, subject to compliance of certain specific and general conditions stipulated / specified in the said clearance. Similarly, the Competent Authorities under the CRZ regulations after due consideration of the proposals submitted by Respondent No.3 and on being satisfied that the proposal is in order, granted CRZ clearance by order dated 16th September, 2011 for proposed intake and outfall of sea water to the Coal based Power Plant.
8. In course of hearing, it came to notice that in the meanwhile the application submitted by Respondent No.3 for obtaining permission to utilize the forest lands for non-forest purpose under the Forest (Conservation) Act, 1980, has been returned by the Competent Authority.
9. Ms. Neelam Rathore, Learned Counsel for MoEF in course of hearing drew our attention to the Notice dated 6th February, 2012, issued by the MoEF calling upon Respondent No.3 to show cause as to why the permission granted under the CRZ Notification shall not be kept in abeyance and / or cancelled. The said notice further stipulates that if no response is received within 15 days, appropriate orders as deemed fit will be passed under the circumstances of the case without any further notice.
10. Learned Counsel for Respondent No.3 admitted that in the meanwhile the Application filed by the Project Proponent under the Forest (Conservation) Act, 1980 seeking permission to use land for 6 non-forest activities, i.e., to lay down the pipeline from the project area to the sea has been returned. It is also submitted that Respondent No.3 is making endeavour to find out alternative ways to avoid use of forest land and also sea water. For the said purpose, Respondent No.3 is contemplating either to re-route the pipeline and / or adhere to alternative cooling process for the project, i.e., "Close Cycle Dry Cooling", involving the use of Air-Cooled Condensers. According to Mr. Venugopal, Learned Sr. Advocate, if the new technique is adopted, then there would not be any need for forest and / or CRZ clearance.
11. Mr. Panjwani, Learned Sr. Advocate, expanding his arguments, submitted that Respondent No.3 has not acted with clean hands and has concealed vital facts before the Authorities. By suppressing the fact that use of forest land would be necessary for the project, EC was obtained. Many other defects and non-consideration of vital aspects while granting EC, was also emphasised.
12. In the course of hearing, an Application was filed by Respondent No.3, inter-alia, praying to call for a report from the State Level Environment Impact Assessment Authority as to whether it would be environmentally feasible for the Respondent to shift to an alternate Cooling process for the project, i.e., Close-Cycle Dry Cooling and also with regard to other ancillary questions. However, as we are proposing to dispose of this Appeal with certain directions, without expressing any opinion we grant liberty to the petitioner to file such a petition before the State Level Environment Impact Assessment Authority, and direct the said Authority to deal with it in proper perspective, as expeditiously as possible.
13. We have carefully gone through the pleadings considered the submissions advanced. Fact remains, Respondent No.3 (Project 7 Proponent) had applied to the State Level Environment Impact Assessment Authority, Gujarat to grant EC for 300 MW Imported/Indian Coal Based Thermal Power Station. In connection with the said application, Respondent No.3 had enclosed several reports and documents to clarify the picture with regard to the viability of the project. The State Level Environment Impact Assessment Authority, Gujarat after considering the recommendation of State Level Expert Appraisal Committee, as well other materials, after complying with all the mandatory requirements stipulated under EIA Notification, 2006, granted EC subject to compliance of certain specific and general conditions. For the sake of brevity some of the conditions which are relevant for our purpose are quoted herein below:-
"12. The project proponent shall not start any construction / project enabling activities unless and until environmental clearance as well as all requisite prior permissions / clearances are obtained.
13. No activity except intake channel, intake water ponds, return water pipelines pump house and enabling activities thereof, shall be carried out in the CRZ areas.
14. No construction work other than those permitted under the CRZ Notification with prior permission from the competent Authority shall be carried out in Coastal Regulation Zone area.
30. Necessary permissions from different Departments / Agencies under different laws / Acts shall be obtained before commencing the construction and / or pipeline lying activities related to the project."
14. A cumulative reading of all the specific and general conditions, more particularly the conditions quoted above, leads to the conclusion 8 that the project cannot commence its activities until prior permission / clearance are obtained from various Authorities under different Acts / Law.
15. In the case in hand, admittedly, the Application filed by the Respondent No.3 for according permission to use forest land has been returned. In the absence of such clearance Respondent No.3 cannot lay pipe lines which are necessity for commencement of the plant.
16. The CRZ clearance granted in favour of the Respondent No.3 is also in stake as would be evident from letter dated 6th February, 2012. By the said letter MoEF has called upon Respondent No. 3 to show cause as to why the said clearance shall not be kept in abeyance.
17. It is well settled that in the absence of permission under the Forest (Conservation) Act and CRZ clearance, the EC granted in favour of Respondent No3 becomes redundant in as much as the said EC is subject to the permission and clearance granted under the Forest (Conservation) Act, 1980 as well CRZ Regulations. Therefore, we have no hesitation to hold that until the Respondent No.3 obtains clearance to use reserve forest land and clearance from the CRZ Authorities, it cannot go ahead with the project. But then Mr. Venugopal, Learned Counsel, as well as the agents / officers of the Project Proponents who are present in Court submitted that steps are being taken to adopt alternative Cooling process for the project and Respondent No. 3 is not keen to either use the reserve forest land and / or the sea water. Consequently it is submitted no permission need be required under the Forest (Conservation) Act and / or clearance under the CRZ Regulation.
18. After hearing Learned Counsel for the parties, in view of the discussions made above and the present day scenario, we feel that it 9 would be just, proper and equitable to dispose of all the three cases with the following directions:-
i) The Respondent No.3 shall adhere to the terms and conditions laid down in the EC granted by Gujarat State Level Impact Assessment Authority vide letter dated 11th June, 2010 for setting up of 300 MW imported /Indian Coal Based Thermal Power Plant at Village Bhadreshwar vide Annexure-A-1.
ii) If the Respondents propose any deviation of their original project plan, by implementing Technical change, they shall apply to the concerned Authorities who shall consider the same strictly in consonance with law and dispose of the same as expeditiously as possible, but not later than four months.
iii) In the event Respondent No.3 intends to follow the original project technique than it shall make further applications under the Forest (Conservation) Act, 1980 which shall be dealt in its own merits and disposed of in accordance with law also within a span of two months.
iv) Respondent No.3 has liberty to submit his show cause before the MoEF in response to the notice dated 6thFebruary, 2012 under the provision of the Coastal Regulation Zone Notification, 2011. If such a show cause is filed, the same shall be disposed of by the Competent Authority in accordance with the law.
19. With the aforesaid directions, the two Appeals and the Application stands disposed of. Parties to bear their own cost.
Vijai Sharma Justice A.S. Naidu Expert Member Acting Chairperson Durga Malhotra