Excerpt
The National Green Tribunal (NGT), Principal Bench, dated 20th October 2020, directed the Telangana government to stop all work, except the drinking water component of the project, until further Orders. The Tribunal declared that the environmental clearance (EC) granted to the Kaleshwaram lift irrigation system was ex post facto “in violation of law”.
Bried Facts
The case of the Appellant (Md. Hayath Udin) was that he was a resident of a village in District Siddipet and was a farmer affected directly by The Kaleshwaram Multipurpose Lift Irrigation Project. The Appellant came before the Tribunal challenging the Order of Ministry of Environment, Forest & Climate change (MOEF & CC), passed on December 12, 2017. The Project envisaged construction of three barrages between Yellampally & Medigadda.
The project proponent wrongly claimed that the project was not for lift irrigation but only for drinking water supply till grant of EC. Thus, according to the Appellant the, impugned EC was ex post facto, in violation of EIA Notification, 2006.
Arguments
The Appellant contended that there was a deliberate misrepresentation of facts regarding the proximity of the protected areas, such as National park, sanctuary, biosphere reserve etc. Final EIA report wrongly stated that there was no national park for wildlife sanctuary within a 10 km buffer. It was wrongly mentioned that Cheetahs existed. The extent of the forest had not been properly mentioned.
The Appellant also contended that the EC condition of impact being studied after five years of commissioning was against the Precautionary Principle.
The Appellant averred that the EIA Notification procedure was not followed in making the draft EIA report available to the public.
Analysis
There were several cases which were referred to:
Narmada Bachao Andolan v. UOI & Ors. and N.D. Jayal & Anr. v. UOI & Ors. (Tehri Dam), Alembic Pharmaceutical Ltd. V. Rohit Prajapati & Ors.
Court’s Observation
The Bench observed that:
“It is particularly required when the projects are multipurpose projects and part of it requires EC so that such requirement is not defeated on the specious plea that the project was partly not covered by the Schedule, as has happened in the present case.”
The Bench observed that:
“Extraction of more water certainly requires more storage capacity and also affects hydrology and riverine ecology of Godavari River. Such issues may have to be examined by the statutory authorities concerned. Prima facie, it is difficult to accept the plea that enhancement of capacity by one third will not require any infrastructural changes. In any case, this aspect needs to be evaluated by the statutory expert Committees before the expansion is undertaken.’’
Court’s Decision
The NGT directed the Telangana Government to stop all work except the drinking water component and obtain a Forest Clearance from the Centre before going ahead with the project.
The NGT also directed the Union Ministry of Environment, Forests, and Climate Change to constitute a seven-member Expert Committee within a month to assess the extent of damage caused in going ahead with the project’s expansion and identify the restoration measures necessary. The Expert Committee would complete its exercise within six months.
“We find that in spite illegality found, it is neither possible nor desirable to undo what has happened but accountability needs to be fixed and remedial measures taken.”
“Prima facie, it is difficult to accept the plea that enhancement of capacity by one third will not require any infrastructural changes. In any case, this aspect needs to be evaluated by the statutory expert Committees before the expansion is undertaken.”
Click here to view the Judgement.
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