Lower Painganga Dharan Virodhi Sangharsha Samithi Anr. Vs State of Maharashtra Ors.

Judicial and Expert Members: Shri Justice V.R. Kingaonkar, Dr. Ajay A. Deshpande

Keywords: Irrigation project, Godawari River, Environment Clearance, Maharashtra, Environmental Impact

Application disposed of

Dated: 10 March 2014
Lower Painganga Irrigation Project was planned in 1971. Somewhere in 1975, a dispute over right to draw water from Godawari River was settled an Award of Godawari Water Dispute Tribunal. By that, Award the Special Tribunal settled the dispute in terms of Agreement signed by State of Maharashtra and State of Andhra Pradesh in October 1975. Both the States reached common understanding that Lower Painganga Project shall be an Inter State Project. A major part of the said project covered the area in State of Maharashtra, whereas a small part thereof covered the area of State of Andhra Pradesh, situated in Adilabad district. This major Irrigation Project was granted Environment Clearance (EC) in 2007. The Project work could not, however, commence within the EC period of five years. Govt. of Maharashtra accorded administrative approval to its part of the project on June, 26, 1997.

By filing Writ Petition No.4025 of 2011, the Applicants challenged revival of EC dated May, 17, 2007, as well as FC dated January 7, 2009, granted by the MoEF (Respondent No.7). The Applicants challenged the EC and FC, on various grounds, including procedural irregularities, viability of the project, violation of doctrine of public trust, absence of proper R&R plan, major threat to environment due to large number of tree cutting activities, so on and so forth.

The Applicants have come out with a case that they are interested in welfare of the farmers and villagers, who are likely to be adversely affected due to proposed Irrigation Project. The Applicants alleged that implementation of proposed project will cause irreversible damage to ecology and environment and as such, the project shall not be allowed to be made operational.

The Tribunal marked the following issues to be decided:
1. Whether the proposed Project is in keeping with principle of sustainable development and whether other alternatives have been duly considered?
2. Whether the diverse environmental impact of this Lower Painganga Project is properly studied and understood?
3. Whether the public hearing conducted as part of the EC process is bad in law?
4. Whether the Forest Advisory Committee (FAC) has taken a justifiable decision to grant forest clearance inspite of the fact that on earlier two occasions the same was refused?
5. Whether the Project Proponent has proposed adequate environmental safety measures in the proposal and whether any additional safeguards are required to be satisfied if the project is allowed to continue?

The project has been evaluated by the Expert Appraisal Committee (EAC) of the MoEF for environmental impacts and the FAC for forest clearance. These Expert Committees are expected to review in detail the project proposal for decision on grant of EC based on environmental appraisal of project activities. The Tribunal listed some of the environmental and ecological factors which are of concerned for such a large scale project:
1. Excessive sedimentation of the Reservoirs.
2. Water logging due to excess use of water for irrigation.
3. Increase in salinity of ground water, groundwater recharge.
4. Health hazard – water bound diseases, Industrial Pollution etc.
5. Submergence of important minerals and monuments and environmental flow in the river.
6. Fish cultural and aquatic life.
7. Seismicity due to filling of reservoirs.
8. Micro climate changes.
9. Plant life and migratory birds.

The Tribunal then went on to give the advantages and disadvantages of Irrigation dams that affect the ecology of the river and adjoining areas. While it was important to keep in mind the damage large dams cause, the principle of sustainable development has to be given its due importance.

From the rejoinder of the Applicants, it is gathered, that the Applicants on their own showing, do not have any background or knowledge about Environmental Laws, various norms and the 31 parameters, which are required to be applied at the time of assessment of the project, particularly a project like the irrigation project of present magnitude. They have raised general objections, procedural objections and objections based upon contemplated problems on account of proposed rehabilitation plan. They have not made any independent environment impact study, nor are a separate EIA Report prepared through any expert Agency. In other words, any other EIA Report filed by the Applicants does not counter the EIA Report of the Respondent No.6 (VIDC). The Tribunal cannot brush aside the ground reality that it has no complete and in-depth specialized knowledge of engineering aspects, pertaining to the branch of construction of big Dams. They also do not possess highly scientific knowledge in the field of Geology to assess seismicity impact of the proposed irrigation project. The Applicants have not given details of seismic potentials at project site. The EAC Committee cannot treat mere absence of a particular report in this behalf by itself as serious fault in the process of evaluation of the project.

Coming to the objection raised by the Applicants as regards the public hearing, Clause 3.1 of the Notification requires the Member Secretary of the PCB to publish public notice of the hearing by giving minimum 30 days period to members for furnishing their responses. In the present case, copy of the Executive Summary was made available to the Members of the public. It is also matter of record that 30 days notice was given prior to the first scheduled date of hearing, second scheduled date of hearing and there was marginal less number of days available in the third scheduled period of hearing. In such circumstances, the question is whether the procedural lapses would invalidate the public hearing.
True, the public hearing was postponed on first two (2) scheduled dates; first on account of changes in the project concept plan and second, due to administrative convenience. It is also true that on third occasion, there was somewhat shortfall of few days in thirty (30) days period of Notice prior to the public hearing, which was held on May 6, 2006. The record, however, shows that there was sufficient notice available much in advance for furnishing responses by members of the public. In fact, a large number of public members gave written representations. It cannot be overlooked that the public hearing was conducted for nearly seven hours. The views in favour and against the Project were expressed during the public hearing. The proceedings were fairly recorded by the competent officers of the MPCB. The process was completed in justifiable manner.

The dams as large infrastructure have a high potential for development, they can balance hydrological variability by storing water for all sectors of the society and serve for controlling the floods. The Applicants have raised serious concerns over the environmental safeguards which need to be adopted by the Project Proponent and which are being stipulated and monitored by the Environmental Regulatory Authority. No doubt, right to have a clean environment is fundamental right. On the other hand, the right to develop is also equally important one and therefore, concept of Sustainable Development has emerged in last few decades and which is one of the principle on which this Tribunal needs to work.

At this juncture, it may be noted that the irrigation project envisages benefits to the tribals, farmers of socially and economically backward area of Vidarbha, and aims to generate employment in that area. Nobody will deny that a major irrigation project is likely to give booster dose to the economy of the region. Availability of irrigation facilities in the area will help cultivators to minimize or curtail dependency on annual rainfall, which is many times unpredictable.

The Tribunal is of the opinion that the irrigation project satisfy the principle of “Sustainable Development”, as required under the Environmental norms and Section 20 of the National Green Tribunal Act, 2010. The Application is without much substance. Still, however, the Application cannot be dismissed without giving directions in conformity with the guidelines set out by the Apex Court in the case of Narmada Bachao Andolan, and ensuring due compliances of certain conditions like implementation of rehabilitation package, Pari-passu with commencement of the project. In other words, the project and some of the conditions must be pari-pasu in nature. Having regard to these aspects, the Tirbunal dismisses the Application and vacate interim orders.

The Application is disposed of.