N THE HIGH COURT OF KERALA.
Chief Justice V.K.Bali and Justice S.Siri Jagan
Judgment dated 23rd March, 2006.
W.P.(C) Nos. 9542 , 11254 & 260763 of 2005.
Athirappally Grama Panchayat
Union of India and others.
Advocates for the Parties: P.B.Sahasranaman, P.B.Krishnan, S.V.Balakrishna Iyer, Daisy Thampi, P.Santhalingam (KSEB), M.Ratna Sing, Advocate General, M.Ajay , Senior Government Pleader, John Varghese (Addl. Solicitor General) , Babu Kuruvathaza, (Kerala State Pollution Control Board).
J U D G M E N T
SIRI JAGAN, J.
1. These writ petitions are in the nature of public interest litigation challenging the environmental clearance given by the 1st respondent-Union of India for the Athirampilly Hydro Electric Project proposed to be set up by the Kerala State Electricity Board. The petitioners are challenging the environmental clearance, Ext.P.10, on the ground that the clearance has been granted without taking into consideration the vital aspects which would affect the ecological imbalance on account of the commissioning of the project as also on the ground of procedural impropriety. The fact situation leading to the litigation, as stated by the petitioners, about which there is no serious dispute, may be summarized as under. (For convenience, we woule refer to the facts and exhibits as given in W.P.(C).No.9542 of 200).
2. The Kerala State Electricity Board submitted an application to the Ministry of Environment and Forest of Government of India for environmental sanction for the Athirampilly Hydro Electric Project across the Chalakudy River with a total installed capacity of 163 MW by making use of the tail end water coming out of the Poringalkuthu Hydro Electric Project. The Chalakudy River which folows through parts of Tamilnadu and Kerala is 144 Kms. Long, having its source at the Anamalai hills in the Western Ghats. Six dams have already been constructed at stages along the river from its source of the river. Four of them are being used for diversion of water and two for power generation. Thus, along the 80 Km. Stretch of the Chalakudy River from its source, the water has already been over exploited. The proposal of the KSEB now is to construct one more Hydro Electric Project across the river at Athirampilly. The original proposal in this regard was made in the year 1979 as a twin project. This proposal was later given up. In 1988, a new proposal was conceived. This project was rejected in 1989 by the Ministry of Environment and Forest inter alia for the reasons of loss of teak plantation and forest, loss of natural wealth rich in biological diversity, loss of habitats for wild animals and endangered species, extinction of aquatic life down stream of the reservoir and possibility of water falls becoming dry resulting in loss of scenic beauty, which is a tourist attraction.
3. In 1991, the KSEB again came up with a revised proposal proposing to maintain the water falls during day time. Under this project, Vazhachal water falls alone would become non-existent. On account of the stiff opposition, this proposal also was not pursued by the K.S.E.B. In 1994-05, a new proposal was initiated by the KSEB under which both the Athirampally and Vazhachal water falls were to be maintained during day time. To establish that the said project wsas ecologically viable, the KSEB entrusted the task of making a study report to the Tropical Botanical Garden and Research Institute (TBGRI for short), in their efforts to satisfy the requirements of Environmental Protection Act, 1986 and Environmental Impact Assessment Notification, 1994. As per notification No.S.O.60(E) dated 27-1-1994 issued the Ministry of Environment and Forest, environmental clearance had to be obtained for putting up, expending or modernising any of the projects specified in Schedule I of the notification. River valley project including Hydel power, major irrigation and their contribution including flood control was Entry 2 in Schedule II. Therefore, Athirampilly Hydro Electric Project of the KSEB came within the purview of the said notification and therefore the proposed project required mandatory environmental clearance in accordance with the said notification. As per the procedure prescribed by the notification, the environmental clearance had to be accompanied among other documents, an Environmental Impact Assessment Report (EIA Report for short). The impact assessment was for the purpose of identifying the future consequences of a current or proposed action so as to facilitate an informed decision making after a dispassionate analysis of the consequences of the proposal project and its impact on the environment as a whole. The TBGRI allegedly conducted a study during monsoon months and on the basis of the data collected during monsoon, prepared a Repid Environment Impact Assessment (Rapid ELA). However, the report prepared by TBGRI was not published and the said Rapid EIA report of the TBGRI was submitted before the Ministry in support of the application for environmental clearance for the project.
4. On 10-4-1997, by Ext.P1 notification No.318(E) issued by the Ministry of Environment and Forest of Government of India, an amendment was introduced to the EIA notification, 1994, which made public hearing mandatory before submitting a project for environmental clearance of the Govenrment of India. Schedule IV was introduced to the EIA notification which stipulated the procedure for conduct of the public hearing also. The notice of hearing had to be mandatorily published. All bona fide residents, environmental groups and others likely to be affected by the project were entitled to participate in the public hearing. The composition of the hearing panel was specified. It was specifically provided that an executive summary of the project shall be accessible to the concerned persons at specified public places. The notification required the details of such hearing to be submitted along with the application for environmental clearance. However, disregarding the said amendment, the KSEB pursued its application before the Ministry without publishing the executive summary of the project or the EIA report of TBGRI and without conducting public hearing as mandated by the amended notification. Based on such application, the Ministry of environment and Forest, by Ext.P2 purported to grant conditional sanction for the project. The said sanction was challenged before this Court on various grounds like environmental concerns, financial non-viability, non-availability of water etc., which ultimately resulted in Ext.P3 judgment, in which this Court set aside the sanction and directed a public hearing to be conducted as mandated by Ext.P.1 amendment to the EIA notification of 1994.
5. In the light of the judgment of this Court, the KSEB published an executive summary of the project in November, 2001. The executive summary was described as a bsic account of the project including the EIA report. The same is marked in the writ petition as Ext.P4. Ext.P5 notice for public hearing was also published. The hearing was conducted on 6-2-2002 which was attended by nearly 200 concerned citizens. During the hearing, the Kodungalloor Municipality, Chalakudy Block Panachayat, five Grama Panchayaths, scientists, farmers, tribals, research students and environmental groups stoutly opposed the project. The hearing panel unanimously found that the Rapid EIA report of the TBGRI is incomplete and recommended the conduct of a comprehensive and participatory EIA, its publication and a further public hearing before a decision is taken on the application for environmental clearance. Ext.P6 is the copy of the proceedings of the public hearing. In the light of the directions contained in the judgment of this Court, Ext.P6 had to be forwarded to the Ministry and fresh decision taken on the environmental clearance for the project. But ignoring the said direction, the KSEB did not pursue the application for environmental clearance on the basis of the EIA report prepared by TBGRI and the findings of the hearing panel who conducted the public hearing on 6-2-2002.
6. In the meanwhile, notification No.S.O.632(E), dated 13-6-2002, the Ministry of Environment and Forest again amended Schedule IV of the EIA notification dealing with the procedure for the public hearing replacing the executive summary, which was to be published before the public hearing by Environmental Impact Assessment Report. The result of the amendment was that a public hearing had to be conducted after publication of the EIA report, Ext.P7 is a copy of the amendment notification.
7. It appears that in the meanwhile, the KSEB had engaged the services of WAPCOS for conducting a comprehensive EIA, study and submit a report. WAPCOS appears to have submitted its report in 2004. This report was not published as required by the amended EIA notification of 2002, namely, Ext.P7. No public hearing was also conducted as required by Ext.P7 after publication of the EIA. Thereafter, the petitioners learned that the Ministry again gave environmental clearance for the project presumably on the basis of the EIA report of WAPCOS. Hearing about this from the Malayala manorama daily, dated 24-2-2005, the KSEB project office was contacted as also the Forest Range Officers at Vazhachal and Charpa for obtaining a copy of the EIA report and the sanction order, but in vein. Enquiries with the Athirampilly Grama Panchayat were also made with the same fate. It is on these allegations that the petitioners have approached this Court challenging the environmental clearance granted by the Ministry of Environment azd Forest.
8. The main contentions of the petitioners is that going by the ratio of this Courts decision in Ext.P3 judgment, on coming into force of the amendment to the EIA notification, public hearing contemplated under the amended notifications had to be again conducted after publication of the Environmental Impact Assessment Report. The petitioners contend that not only was the EIA report of WAPCOS not published, no public hearing was also conducted as enjoined by the amended notification. They would further contend that the WAPCOS study is stated to have been conducted for the period from January, 2002 to December, 2002. The public hearing was conducted on 6-2-2002. As such, the WAPCOS must have started the study even prior to 6-2-2002 and the study cannot be taken to have been conducted pursuant to the findings of the hearing panel in the public hearing on 6-2-2002. Petitioners also elaborately detail the disastrous adverse impact the project would have on the environment of the region, which, according to them, would even affect the availability of water and consequently the life of the people living in and around the area depending on the water from the river.
9. Both the Government of Kerala as well as the Kerala State Electricity Board have filed counter affidavits on the strength of which they shoutly oppose the writ petitions. According to them, the environmental clearance has been granted after taking into account every conceivable aspect relating to the matter based on the environmental impact assessment study by a competent body, namely, WAPCOS, which report of EIA was published. They would submit that sufficient safeguards have been taken for obviating any adverse environmental impact and therefore there is no merit in the objections of the petitioners and the contentions in the writ petitions.
10. We have heard learned counsel for the petitioners, learned Government Pleader appearing for the Central Government as also the learned standing counsel appearing for the KSEB. The learned Advocate General also appeared and tried to impress on us the necessity to go ahead with the project urgently a view of the dismal situation caused by the non-availability of sufficient power to cater to the increasing demand for the same in the State.
11. Counsel for the petitioners narrated the adverse impacts on the environment and the life of the people that would result on account of the commissioning of the project and painted a very disconcerting picture before as of the adverse effect the projected would have on the life of the common man residing in the region who depends upon, the water from the Chalakudy river. They would even go to the extent of saying that after the construction of several dams in the Chalakudy river, this Athirampilly project would practically result in drying up of the Chalakudy river completely, at least downstream.
12. On the other hand, the learned Government Pleader and particularly the standing counsel for the KSEAB took elaborate pains to convince us that the contentions of the petitioners are imaginary and the final project submitted before the Ministry for Environmental clearance takes care of every conceivable adverse effect that can be foreseen.
13. On due consideration of the arguments of both sides, we do not consider it necessary at this stage nor are we competent to decide whether the project itself would cause any adverse environmental impact. According to use, we are now concerned only with the question as to whether the Electricity Board and the Government have complied with the procedural requirements of the EIA notification as amended by Ext.P7. We note that the Government have prescribed these elaborate procedure taking note of the increasing assault on nature in the name of development to make sure that such project are sanctioned only after ensuring that no adverse environmental impact would result from the same. We find that EIA was prepared and the same was submitted for environmental clearance of the Ministry and the Ministry had granted the clearance. However, in the earlier writ petition, this Court noted that the EIA notification was amended in the meanwhile making publication of an executive summary of the project and a public hearing mandatory before the clearance was granted and therefore the Electricity Board and the Government were bound to re-submit the project after complying with the procedure contemplated by the amended notification such as publication of the executive summary and conducting a public hearing. That judgment has become final. Therefore, the ratio of that decision is applicable to the further proceedings in respect of obtaining environmental clearance for the Athirampilly project. It is not in dispute that before the present clearance was granted, the notification again underwent another amendment making publication of environmental impact assessment report and conducting a public hearing thereafter mandatory. Going by the ratio of Ext.P3 decision, the Government was bound to publish the WAPCOS study report on the environmental impact of the project and conduct a public hearing again and forward the proceedings of such hearing along with the application for environmental clearance to the Ministry of Forest and Environment. Only thereafter the first respondent could have considered the application for environmental clearance, that too, after taking into account the result of the public hearing as contained in the proceedings of the hearing submitted by the hearing panel.
14. The learned Government Pleader and the learned standing counsel for the Electricity Board tried their best to convince us that the WAPCOS report was actually published and the petitioners and others had opportunity to raise their objections and, in fact, some objections were received, which were also taken into account while granting clearance as a result of which no interference at our hands is necessary in these cases. However, they were not able to place before us any material to show that the report of WAPCOS was actually published and more importantly, they have not chosen to produce a copy of the same before this Court. That itself may not be material at this stage because not only had the WAPCOS. EIA report to be published but a public hearing also should have succeeded the publication of the report as mandated by the amendment to EIA notification by Ext.P7, which admittedly has not taken place. Going by the ratio of Ext.P3 decision, the Govenrment was bound to conduct a public hearing after publication of the WAPCOS report.
15. The learned Government Pleader tried to impress on us the futility of re-enacting the public hearing at this stage. The Government Pleader would point out that another amendment to the EIA notification is on the anvil before the Central Government, a draft of which has been made available to us for perusal during the course of hearing. He would submit that if this process is to be continued every time an amendment to the notification takes place, the same would be an unending process, which is not contemplated either by the notification or by law. We are not able to agree. Ext.P3 judgment specifically holds that in such a situation compliance with the amended provisions of the notification is mandatory. Neither the Government nor the KSEB had chosen to challenge the said decision and had chosen to comply with the same Going by the ratio of that decision, when there was an amendment before the Environmental clearance was given, they were bound to comply with the amended provisions, whatever be the difficulties faced by the Government and the KSEB. That is the law and law has to be abided by all concerned at all costs. The Central Government found it necessary to make the conditions stringent by bringing in more safeguards by amending the notification in view of the increasing assaults on nature which is sought to be prevented by such amendments. What is at stake is our own life, the protection of which all possible safeguards have to be made even at the cost of development. The Central Government was not prepared to trust the bureaucracy alone to take the final impassionate decision and found it necessary to consult others also before taking a final plunge for which purpose further elaborate procedure has been conceived. Compliance with the amended procedure is mandatory and no amount of hardship or inconvenience caused to the Government and KSEB in the implementation of the project can stand in the way of ensuring environmental protection on which our very lives depend. Therefore, we do not find any merit in the contentions of the learned Government Pleader and the learned standing counsel for the Electricity Board.
16. The first respondent-Union of India also supports Ext.P10. According to them, since the EIA notification was amended only on 13-6-2002, four months after the public hearing in February, 2002, it is not necessary to follow the procedure stipulated in the amended notification. We are of the view that the Union of India, who was also part to Ext.P3 judgment and did not challenge the same, cannot be heard to contend so. If we accept the said contention, it would amount to overruling Ext.P.9 judgment, which we cannot. Going by the ratio of that judgment, when the amendment came before the clearing was given, keeping in view the object behind incorporating the amendment, the amended procedure has to be necessarily followed scrupulously.
17. The learned counsel for the Kerala State Electricity Board has filed a counter affidavit dated 17-2-2006 and an additional counter affidavit dated 28-2-2006, after the cases were once reserved for judgment, which necessitated re-opening of the hearing which was also done at the instance of the KSEB. In the counter affidavit, the Electricity Board contends that the Division bench had clarified Ext.P.3 judgment in W.P.(C).No.2846/2002 and as per the said clarification, it is not necessary to compile the environmental impact before public hearing is given. According to us, this argument is no longer available to the Electricity Board in so far as the Division Bench was considering at that time only the un-amended notification, which has subsequently been amended by Ext.P7 notification, which categorically stipulates publication of the Environmental Impact assessment Report and a public hearing thereafter. Further, the Electricity Board, in these two counter affidavits, has taken pains to show us that the project as envisaged now would not have any adverse environmental impact and as such it is not necessary to interfere with the environmental clearance now granted. In so far as we are not considering the merits of the contentions regarding the environmental impact raised by both sides, we do not think, it necessary to go into these questions in as much as we are disposing of these writ petitions solely on the ground of non-compliance wit the amended notification, which applies to the present case going by the ratio of Ext.P3 judgment.
18. The result of the above discussion is that Ext.P10 environmental clearance now given by the 1st respondent is liable to be quashed. We do so and hold that the Electricity Board is bound to apply for environmental clearance by the 1st respondent afresh after publishing the Environment Impact Assessment Report stated to have been got prepared by the KSEB, and conducting a public hearing after publication of the report. Such application shall be accompanied by the proceedings of the public hearing to be so held. In order to obviate any objections regarding the publication of the report, we direct that in addition to the normal mode of publication as contemplated by the notification, the Government as well as the Kerala State Electricity Board are directed to make available copies of the report to each of the petitioners in these writ petitions. In view of the urgency expressed by the Government and the Kerala State Electricity Board, we direct that the entire exercise as contemplated by the amended notification be completed within a period of two months from the date of receipt of a copy of this judgment. The writ petitions are disposed of as above.
Sd/-. V.K.Bali, Chief Justice.
Sd/-. S.Siri Jagan, Judge.