BY AKASH VASHISHTHA
NEW DELHI: Environmental rule of law need not be considered to be in conflict with the need for development but a facet of development., the National Green Tribunal (NGT), held Tuesday, while directing the Ministry of Environment, Forests and Climate Change (MOEF&CC) to constitute a seven-member Expert Committee, preferably out of EAC members with relevant sectorial expertise, to assess the extent of damage caused in going ahead with the Kaleshwaram Lift Irrigation Scheme (KLIS) project without Environmental Clearance (EC) from 2008 to 2017.
The expert panel may further identify the necessary restoration measures, the relief and rehabilitation measures that need to be adopted, the tribunal has said, while hearing an Appeal preferred by Md. Hayath Udin, a resident of a village in District Siddipet who claimed to have been directly affected by the project.
Observing that development has to be sustainable and in the light of principles which the country has accepted in the form of the frame work of legislation and best environmental practices, the Tribunal has held that the project in question was predominantly for irrigation though water supply was also involved.
Rejecting the position of the Telangana government that the project was primarily for water supply and water management and that irrigation was subsidiary or incidental part of the project and therefore, no EC was required prior to execution of the project from 2008 to 2017, the green court held that such a stand was “patently untenable and if accepted, will defeat the law”.
“We are unable to accept the stand of the project proponent that primarily the project is for water supply and water management and that irrigation is subsidiary or incidental part of the project so as to hold that no EC was required prior to execution of the project from 2008 to 2017. We are also unable to agree that the State did not proceed with the irrigation component in the project till the clearances were granted and only constructed components relating to supply of drinking water,” the tribunal has observed in its Order, passed on October 12, 2020.
“There is no basis for the submission that no part of execution of the project prior to EC related to Irrigation purpose as project is admittedly integral and inseparable. The argument, if accepted, will defeat the law,” the NGT has said, adding that the EC had been granted ex post facto in violation of legal requirement for prior EC.
“We find that undoubtedly the project seeks to provide drinking water to the needy people and irrigation facilities to improve agricultural productivity which serves public interest. Also huge amount of public money has been spent. At the same time, it is not necessary that for such development, damage to environment must be ignored and adequate safeguards are not to be adopted,” a Bench comprising Chairperson, Justice Adarsh Kumar Goel, Judicial Member, Justice S.P. Wangdi and Expert Member, Dr. Nagin Nanda observed.
“Beyond submitting that there is damage to the environment on account of the project having been executed without prior EC, there is no tangible material before the Tribunal on the basis on which a specific direction for mitigations, restoration and rehabilitation measures can be directed. This exercise was expected from the experts recommending and the authorities granting EC. The project proponent should have been held accountable for the violations,” the tribunal has held.
“We are further of the view that the decision for expansion taken by the Telangana Govt. on 06.10.2019 is without EC and not tenable in view of stand taken by the CWC in O.A No.204/2020. The stand of the State, that expansion of the project by extraction of 3 TMC/day instead of 2 TMC/day does not involve any infrastructural changes and therefore EC is not required, cannot be accepted,” the tribunal holds.
“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 concerned statutory authorities. 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,” the apex environment court observed.
The appellant brought the case that KLIS was meant to irrigate 7,38,851 ha in upland areas of Adilabad, Karimnagar, Nizamabad Warangal, Medak, Nalgonda, and Rangareddy Districts of Telangana by diverting 180 TMC of water from River Godavari.
According to the Appellant, the original budget of the project was Rs.80499.71 crores. The source point for 2 KLIS is near Medigadda Village, below the point of confluence of Pranahitha and Godavari Rivers about 20 km from Kaleshwaram. The project envisaged construction of three barrages between Yellampally & Medigadda viz. Medigadda Barrage on Godavari near Medigadda (Kaleshwaram) , Annaram Barrage on Godavari downstream of confluence of Manair River with Godavari river near Annaram and Sundilla Barrage on Godavari downstream of Yellampally barrage near Sundilla.
The project, according to Hayath, envisaged diversion of about 180 TMC water from Godavari for Irrigation purpose (134.5 TMC), stabilization of existing command area (34.5 TMC), drinking water to Hyderabad (30 TMC) drinking water to en route villages (10 TMC) and for industrial uses (16 TMC).
“Thus, the main aim of the instant project is, irrigation in seven Districts of Telangana to support agriculture. The whole of KLIS is planned in seven “links”, with the water conveyance system consisting of gravity canals, online storages and tunnels involving significant amounts of forest land estimated to be about 3221.2974 ha as per the Final EIA Report submitted by the project proponent to the MoEF,” the Appellant raised.
The infrastructure was being constructed prior to applying for Environmental Clearance. The lift irrigation scheme involved submergence of approximately 32000 ha of land in Telangana, 3211.2974 ha of forest land in Telangana and 3 approximately 302 ha of land, including some forest land in Maharashtra as per pre-feasibility report, Hayath submitted in his appeal.
As against the factual position, the project proponent wrongly claimed that the project was not for lift irrigation but only for drinking water supply till grant of EC. The application for EC was made only January, 2017. EC was granted in December, 2017 but before that substantial work had already been undertaken. Thus, according to the appellant, the impugned EC was ex post facto, in violation of EIA Notification, 2006.
The appellant further challenged the project on the ground that the EC was granted without application of mind, overlooking the procedural irregularities as well as environmental aspects. The project, as proposed, underwent change by increase in capacity and inclusion of Mission Bhagiratha to provide drinking water to Hyderabad and certain villages of Telangana but no fresh scoping was done. The pre-feasibility report submitted in January, 2017 and draft of EIA report submitted in July, 2017 did not mention the Mission Bhagiratha which involved interlinking of the two projects. There was discrepancy with regard to quantity of the forest land in the project.
Further, there was deliberate misrepresentation of facts regarding proximity of the protected areas, such as National park, sanctuary, biosphere reserve etc. The final EIA report wrongly stated that there was no national park for wildlife sanctuary within 10 km buffer, the Appellant raised in the appeal.
The Tribunal, on October 5, 2017, restrained Maharashtra and Telangana from carrying out any construction activities for the KLIS or activities such as felling of trees, blasting and tunnelling in the forest areas in violation of the Forest (Conservation) Act, 1980, till statutory clearances were granted.
The Telangana government, against the said Order, moved the Telangana High Court that had set aside the order of the Tribunal on the preliminary ground that the Tribunal had not decided the objection about the application being beyond limitation laid down under Section 14(3) of the National Green Tribunal Act, 2010 and that the application could not be filed before the Principal Bench and was to be filed before the Southern Bench. The High Court, however, while leaving it open to the Tribunal to pass a fresh order, noted that without EC and FC, the State of Telangana could not commence the irrigation component of the project and use the forest land for non-forest purposes.
The MoEF&CC told the Tribunal that the project was for providing irrigation facility and also for providing drinking water facility. It fell under entry 1(c) of the Schedule to the EIA Notification, 2006. The EC was granted subject to certain conditions and directions, as per law. In a further affidavit, the Environment Ministry had submitted that the Expert Appraisal Committee (EAC) thoroughly examined the project before recommending the project for grant of environmental clearance as per the EIA Notification 2006 and amendments thereof.
It was further submitted by the ministry that after considering all the relevant facts of the project as presented by the project proponent, documents submitted by Project Proponent, clarification furnished in response to its observation, EAC had recommended for the grant of Environmental Clearance for the project. The minutes of Public Hearings were taken into consideration by the EAC for River Valley and Hydro Power Sector while appraising the project for grant of EC.
A detailed flora and fauna study was conducted by the project proponent, and the same was incorporated in the EIA report. As per the EIA report and informed by project proponent, there was no endangered, threatened and endemic category of flora & fauna, the ministry stated in its submissions before the tribunal.
The project proponent, State of Telangana, contended the Appellant’s claim, maintaining that the project was primarily for water supply and water management, which was not covered by the EIA Notification, 2006, in view of the amendment dated 25.06.2014. With regard to its expansion, it was stated that the decision had been taken to increase drawl of water from 2 TMC/day to 3 TMC/day by the Telangana government October 6, 2019.
The Telanagana government countered the Appellant’s case asserting that the expansion did not alter the infrastructure plans. The State did not proceed with the irrigation component of the Kaleshwaram Project till the necessary and requisite clearances were obtained by them.
The project started in 2008 with construction of series of barrages, reservoirs, pipelines, canals and pump houses to pump water from one reservoir to the other and was still continuing. Major part of the project had already been constructed. The Environment Management Plan (EMP) envisaged spending Rs. 16,000 crores, Telangana government submitted before the green court.
“It remains undisputed that the project involves budget of Rs. 80,000 Crores. EMP itself has a provision for Rs. 16,000 Crores. The State has led no evidence in support of the plea that all earlier activities are exclusively for water supply. The State could produce documents like contracts to show that the infrastructure had no nexus for the irrigation. This plea is not shown to have been gone into by the MoEF while granting EC,” the tribunal said while disposing of the Appeal.
Appearing for the Appellant, Advocate Sanjay Upadhyay, said, “The Tribunal asked us what was to be done if the project had already been substantially undertaken prior to the grant of EC in violation of law. We suggested that in such a situation, at least suitable mitigation measures were required to be taken.”
“The tribunal found that in spite illegality, it was neither possible nor desirable to undo what had happened but accountability needed to be fixed and remedial measures taken,” he told Earth Justice.
“This is a huge victory for not only the Appellant, but also the farmers of Telangana who have been agitating against the project for the last three years,” Upadhyay said, assisted by Advocates Eisha Krishn, Prannoy Joe Sebastian and earlier by Siddharth Nayak and Mridula Vijayraghavan.