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BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI

(PRINCIPAL BENCH)

Application No. 12 of 2011 Wednesday, the 14th day of December, 2011

QUORUM:

1. Hon’ble Justice Shri C.V. Ramulu (Judicial Member)

2. Hon’ble Dr. Devendra Kumar Agrawal, (Expert Member)

Between : 1. Jaya Prakash Dabral

C-112, Flat No. 5, Pandav Nagar, Delhi – 110 092

2. Dr. Bharat Jhunjhunwala, Village Lakshmoli, P.O. Maletha, Kirti Nagar, District TehriGarhwal Uttarkhand – 249 161 …Applicants

and

1. Ministry of Environment & Forests, Union of India Through its Secretary ParyavaranBhawan, CGO Complex, Lodhi Road, New Delhi – 110 003

2. State of Uttarakhand, Through its Chief Secretary Sachivalaya, Dehradun

3. Lanco Hydro Energy (P) Ltd. Plot No. 229, Phase-I, Udyog Vihar Gurgaon-122016 (Haryana)

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4. L&T Uttaranchal Hydro Power Pvt. Ltd. No. 6 Gavni Village, Next of Jalagam Office Chandrapuri, District Rudraprayag, Uttarkhand-246425 … Respondents

(Advocates Appeared: The Applicants appeared in person and argued. Mrs. Neelam Rathore for Respondent No. 1. Shri Ashutosh Jha and Shri Anand Tiwari for Respondent No. 2. Shri Akhil Sibbal, Ms. Manjeet Kaur, Mr. Deepal Khurana, Mr. Salim Inamdar and Shri Archit Virmani for Respondent No. 3. Shri Tanmaya Agarwal for Respondent No. 4).

J U D G M E N T (Judgment Delivered by the Bench) This application is filed under Section 14 (1) of the National Green Tribunal Act 2010 by the parties in person. It is their case that a cause of action had arisen in view of the fact that on 23.6.2011, a crack had occurred in the tunnel which received wide spread publicity in the local newspapers. There is an urgent need to raise the negative impact of the tunnel based hydro power projects. If the construction of the dam is allowed, it may cause irreparable and irreversible loss to the environment. The respondents filed their detailed counters and raised preliminary objection as to maintainability of the very application. Thus, the only point that is being considered in this order is as to maintainability of the application. Therefore, there is no necessity of going into all the details at this stage. According to the applicants, Mandakini River is an important tributary of river Alaknanda which eventually forms River Ganga after merging with River Bhagirathi in Devprayag. That six Hydroelectric projects have been planned in river Mandakini. Four of them are in the planning stage while in two i.e. Singoli-Bhatwari and Phata-Byung construction has started. What is

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alarming today is that in the entire length of 50 km from the first dam to the last dam, the river will be channeled through tunnels. This will have grave environmental consequences. The river water will only appear out of a power house and then disappear in another tunnel. The Government proposes to build these projects contiguous to one another. The River will flow entirely through tunnels. Both percolation and evaporation of river water will be less and adversely affect the forest and environment. The Sinogli-Bhatwari project is being constructed by L&T Uttaranchal Hydro Power Limited and in Phata-Byung the project is being constructed by Lanco Hydro Energy Private Limited. The first applicant is the President of Himalayan Chipko Foundation (Registered Society) an NGO working on several environmental issues relating to the Himalayas. The Second applicant Dr. Bharat Jhunjhunwala is a former-professor of IIM-Bangalore and an expert on dam economics, a noted columnist and resides in Lakshmoli Village of Tehri, Garhwal on the banks of river Alaknanda.

Whereas, it is the contention of all the respondents that the very application under Section 14 (1) of the NGT Act is not maintainable. The applicants can never be called either person/(s) aggrieved or person/(s) injured for the purpose of maintaining this application. Further, no substantial question of law had arisen for consideration. The allegations made are general in nature and there is no specific relief sought for in this Application. Further, this application is filed against two project proponents who are separate from each other, which is not maintainable. Neither the allegations nor the relief sought for can be granted by this Tribunal being general in nature. According to the applicants, they are directly affected due to likely methane emissions, deterioration of water quality, loss of bio-diversity etc. There is no requirement under the NGT Act 2010 that the grievance should be of a particular level, in environmental matters. The Section 18 of the NGT Act, excludes those individuals who are not directly affected and also have no

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track record of environmental activities. The second applicant is a resident of the area (Lakshmoli village). The application is made under Section 14 of the Act and not under Section 16 of the NGT Act. The cause of action in environmental issues is continuous. The applicants are challenging the forest clearance not because of irregularities committed during the process of issuance of the forest clearance but due to after effects that have come to light subsequently. Even for subsequent effects on environment, the applicants can approach this Tribunal and seek for the cancellation of the forest clearance, if the construction of the projects proves to be disastrous to the environment, ecology and human life. Therefore, the applicants cannot be thrown out at this stage. The argument of the respondents is that the applicants do not fit into the definition of the ‘person aggrieved’ as occurred in the NGT Act. Section 18 (2) of the National Green Tribunal Act inter-alia provides that an application for grant of relief or compensation or settlement of dispute may be made by ‘the person who has sustained the injury’ or ‘the owner of property to which damage has been caused’, legal representatives or an agent duly authorized of the deceased in case of death or any person aggrieved including any representative body or organization. Section 15 provides for the circumstances in which the Tribunal may grant relief i.e. relief and compensation to victims of pollution or environmental damage, restitution of property damaged or for restitution of the environment. Thus, the very framework of the NGT Act provides that it is only a ‘person aggrieved’ who can make an application for adjudication and be granted relief by the Tribunal. The legislature in its wisdom rightly placed a restriction on person who can approach the National Green Tribunal for adjudication of grievances. Firstly, it will weed out frivolous litigant and prevent party from approaching this Tribunal who is interested in seeing that the project which has been approved in a larger public interest of the people may not get the benefit. Secondly, to prevent unwanted litigation

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which may result in frustrating object and idea of sustainable development? Under Section 14(1) moved by the Applicant is seeking relief inter-alia of the quashing forest clearance granted to Respondent Nos. 3 and 4. The forest clearance granted to the Respondent No. 3 on 2.5.2008 whereas the said clearance was granted to Respondent No. 4 on 16.1.2009. It may be pertinent to note here that Section 16(e) of the Act provides for an appeal against any order or decision made by the said Act or any authority under Section 2 of the Forest (Conservation) Act, 1980 only if such orders have been passed on or after commencement of the Act. The National Green Tribunal Act came into force on 18.10.2010 and since both the orders of forest clearance under Section 2 of the Forest Conservation Act were issued much earlier to the commencement of this Act, no application could be maintained before this Tribunal. Further, the application under Section 14 is barred by time as for as the relief of cancellation of forest clearance dated 2.5.2009 and 16.1.2008 is concerned, any such application could have been moved only within six months from the date of grant of such forest clearance, whereas now it is more than three years in the present case. Further, it is the case of the respondents that a Writ Petition No. 38 of 2011 has been filed and pending before the Hon’ble High Court of Uttarakhand. The subject matter of the present application and the subject matter of the Writ Petition before the Hon’ble High Court of Uttarakhand under Article 226 of the Constitution of India are substantially one and the same. Once the matter is under consideration with the Constitutional Court, this Tribunal may not venture to decide the matter unless and until the High Court of Uttarakhand decides the matter one way or the other. We have given our earnest consideration to the respective submissions made by the applicants, who appeared in person, and the Learned Counsels of all the respondents and perused the material made available on record including the written submissions made by them.

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The only point that falls for our consideration is: Whether the appellants can be called as aggrieved and /or injured “person”(s) as defined under the NGT Act and the appeal is maintainable by them;

In this regard, we take note of the judgment delivered by us today i.e. 14th day of December 2011 in Appeal No. 5 of 2011 on the similar lines while interpreting the words “person aggrieved” which had arisen therein, which reads as under:

“Before going into the arguments advanced by the Counsel on either side it may be necessary to notice few sections of the NGT Act 2010 in this regard, which reads as under:

Section 2 (j) : “person” includes— i) an individual; ii) a Hindu undivided family; iii) a company; iv) a firm; v) an association of persons or a body of individuals,

whether incorporated or not; vi) trustee of a trust; vii) a local authority; and viii) every artificial juridical person, not falling within any of the

preceding sub-clauses.

Section 16 (e): Tribunal to have appellate jurisdiction --Any person aggrieved by— (a to d)……. (e) an order or decision made, on or after the commencement of the National Green Tribunal Act 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980 (69 of 1980).

Section 18 -Application or appeal to Tribunal: (1) Each application under sections 14 and 15 or an appeal under section 16 shall, be made to the Tribunal in such form, contain such particulars, and, be accompanied by such documents and such fees as may be prescribed.

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(2) Without prejudice to the provisions contained in section 16, an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by –

i) the person who has sustained the injury; or ii) the owner of the property to which the damage has been

caused; or iii) where death has resulted from the environmental damage, by

all or any of the legal representatives of the deceased; or iv) any agent duly authorized by such person or owner of such

property or all or any of the legal representative of the deceased, as the case may be; or

v) any person aggrieved, including any representative body or organization; or

vi) the Central Government or a State Government or a Union territory Administration or the Central Pollution Control Board or a State Pollution Control Board or a: Pollution Control Committee or a local authority, or any environmental authority constituted or established under the Environmental (Protection) Act, 1986 (29 of 1986) or any other law for the time being in force:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be imp leaded as respondents to the application: Provided further that the person, the owner, the legal representative, agent, representative body or organization shall not be entitled to make an application for grant of relief or compensation or settlement of dispute if such person, the owner, the legal representative, agent, representative body or organization have preferred an appeal under section 16.

(3) The application, or as the case may be, the appeal filed before the Tribunal under this Act shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose of the application, or, as the case may be, the appeal, finally within six months from the date of filing of the application, or as the case may be, the appeal, finally within six months from the date of filing of the application, or as the case may be, the appeal, after providing the parties concerned an opportunity to be heard.

We may also have to take note of the Preamble and Section 20 of the NGT Act, 2010 which reads as under:

Preamble of NGT Act 2010 – “An Act to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests

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and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.”

Section 20: “Tribunal to apply certain principles – The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pay principle.”

A combined reading of the Preamble and Section 20 of the NGT Act, 2010 would reveal that this Tribunal has got vast jurisdiction to decide the environmental disputes such as enforcement of legal rights relating to environment, compensation, damages to persons and property, and matters connected therewith and incidental thereto including conservation of natural resources. Keeping this in view, we have to examine the case on hand.

The project in question is a hydro-electric power project on Alakhnanda river. According to the Respondent No. 2, the appellants are neither aggrieved person (s) nor injured person (s) for maintaining an appeal of this nature. According to him, the person as defined under section 2 (j) or as appearing Section 16 or 18 of the Act have no application to the facts of this case. The appellants are neither directly nor indirectly affected and as such cannot be called as aggrieved/injured person (s).

Further, the learned counsel for the Respondent No. 2 strenuously contended that may be the Section 2 (j) and person as noticed in Section 16 and 18 all inclusive definition. But Section 18 (2) (a) entitles only a person who had sustained injury per-se to approach this Tribunal. Further, the aggrieved person as contemplated in the Act refers to substantial grievance as to denial of some personal, pecuniary or property right or imposition upon a party of a burden or obligation. In any case the grievance must be substantial and cannot be fanciful. Mere sentimental grievance does not make a person aggrieved (Nekumar K. Porwal vs. Mohanlal Harigovindas, AIR 1963 Bom, 246). A person aggrieved must be a person who has suffered a legal grievance i.e. a man who has been wrongfully deprived of something or to whom something has been refused wrongfully (2003) 3 SCC 393. Further, the technical considerations if any involved, Courts generally will not interfere into such matter since the technicalities are the matters on which experts might disagree which involve nice issues of judgment and choice which required the exercise of informed discretion (1988) 4SCC page 59.It is also the case of Respondent No. 2 that the EC in this case was granted 4 years ago and the same was widely published in the local newspapers and the Appellant No. 1 was individually informed of the same .If the appellants are concerned with the environmental impact of the project, they should have raised the issue in accordance with the law at the stage of EC itself. The appellants have no concern with the environmental effect of the project but there is ideological bias against

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the development of projects. The Appellant No. 1 had put forth certain demands at the time of “Public Hearing” regarding the EC. The same was considered and redressed. The appellant did not raise any objection. Thus, the Respondent No. 2 moved forward with the project and also for the sanction of investment of the project. According to the Respondent No. 2, the mala-fide intention of the appellants is evident from the recent communications which they have sent to the World Bank demanding review of the loan sanctioned by it. The Appellants also threatened that there has been a challenge of FC accorded and they hope to succeed in the same. Therefore, it cannot be said that they have approached this Tribunal with clean hands and can be called that they are the aggrieved persons. The learned counsel for the Respondent No. 1 and 3 also submitted arguments on the same lines.

The appellants however, vehemently submitted that they are the lovers of nature, environment and ecology. Their grievance is genuine and they cannot be thrown out saying that they are not the persons directly aggrieved or injured.

A reading of Section 2(j)(i) to (viii) would reveal that any individual, Hindu undivided family, Company, Firm, an association of persons or a body of individuals whether incorporated or not, trustees of a trust, a local authority and every artificial juridical person not falling within any of the preceding sub-clauses, would indicate “person” who can maintain an application/appeal under the NGT Act. But, it is the argument of the learned counsel of the Respondent that even the above defined person shall be a person either aggrieved or injured directly or indirectly and not otherwise.

Then the question arises whether in the environmental matters, a person who is really aggrieved/ injured shall alone be permitted to approach this Tribunal. A combined reading of the above sections, would indicate, that any person whether he is a resident of that particular area or not whether he is aggrieved and/or injured or not, can approach this Tribunal. In such situations, it is of course necessary to scan and find out the credentials of the applicant/appellants as to their true intentions and motives. No doubt that in the present case though the appellants have participated in the EC proceedings and they have not challenged the same. However, that does not mean that they cannot challenge the FC proceedings on any available legal grounds (However, it is to be noted that in the guise of challenging the FC, the appellants cannot be permitted to raise the grounds which might be raised, had the EC was challenged). Appellants apprehend a great danger and disaster to the environment and ecology, if the project is not properly envisaged and does not satisfy the principles of sustainable development and precautionary principles as is mandated under Section 20 of the NGT Act. In the matters of environmental cases, any individual or persons and body of individuals can agitate as to the correctness of the study of environment and ecology made by the granting authority. Further, nothing substantial has been demonstrated to doubt the credentials of the appellants except saying that they (appellants) are not aggrieved

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and/or injured person (s) under the Act and they are a busy body and their motives are ulterior. The person injured per-se as occurred in Section 18 (2) of the NGT Act is only for the purpose of claiming relief, compensation or settlement of disputes, is altogether different from the person aggrieved as available in Section 16. Person aggrieved and person injured are two different words which connote different meaning. Under Section 16any person aggrieved can approach this Tribunal by way of filing an appeal. Whereas, under Section 18 (2) the person injured per-se, whether it is an individual or a body of individual or a social organization or a Hindu joint family etc. Further under Section 14and 16 any person can approach this Tribunal for appropriate relief including the relief under Section 18.

The only exception to be made for treating an appeal/application as not maintainable could be a matter which falls beyond the seven (7) Acts as notified in schedule I of the NGT Act 2010 and in a case of mala-fide and vexatious litigation brought before this Tribunal and not otherwise.

In a given case the person living in the area or vicinity of the proposed project may not know about many intrinsic scientific details and effects of the ultimate project and any disaster it may cause. The safety of the dam and the likely devastation and loss of properties and lives of the people in the downstream, if the dam, being situated in a highly earthquake prone area, bursts or leaks - the structural flaws of the dam and rehabilitation policies, etc. Therefore, it may not be proper for this Tribunal to reject an Application on the ground that the applicant/appellant as the case may be, is not the resident of the area or not directly injured or aggrieved. The nature has been created over lakh of thousands of years and such nature cannot be allowed to do away with one stroke of pen, in the guise of development, without properly examining the environmental and ecological impact of the project proposed. No scientific study assumes finality as with the progress of time our knowledge and understanding of the subject matter undergoes metamorphous with new evidence.

Therefore, we are of the view that the appellants are interested persons in the environment and ecology of the area, though they are not directly affected/injured at this point of time. But, they can be definitely called aggrieved persons since they apprehend some danger, if the project is launched without taking proper precautions. The person aggrieved in environmental matters must be given a liberal construction and needs to be flexible. Therefore, we are of the considered opinion that persons like to appellants are also entitled to approach this Tribunal and the appeal is maintainable. It is further very apt to note the relevant provisions of the Constitution of India which reads as under: “Article 48A – Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavor to protect

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and improve the environment and to safeguard the forests and wildlife of the country. “Article 51A - Fundamental Duties: It shall be the duty of every citizen of India: ……… (g) to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. From the above it is clear that the State shall endeavor and safeguard the environment and wild life and it is the fundamental duty of the citizen to improve the natural environment including forests, lakes, rivers, and wildlife and also to have compassion for living creatures. Once, the protection and improving the natural environment is the fundamental duty of a citizen, any person can approach this Tribunal and agitate his grievance as to protection and improvement of the natural environment. The statutory provisions are subservient to the constitutional mandates. The person as defined or person aggrieved as occurs in Section 2(j) 16 and 18 (2) of the NGT Act cannot be placed above “every citizen” as appears in Article 51(A) of the Constitution of India. Once the mandate is of every citizen, any person can approach this Tribunal complaining environmental threat in the activities of the State or any organization or individual.”

For all the above reasons, which arise under similar circumstances to this case, we are of the considered opinion that the applicants are persons aggrieved, in a matter of this nature. Therefore, the applicants are entitled to maintain an application of this nature. Coming to the arguments advanced by the Learned Counsel for the respondents that Writ Petition No. 38 of 2011with similar allegations and grounds of attack against the very same project in question relating to grant of environment clearance is pending with the Hon’ble High Court of Uttarakhand and therefore, this application is not maintainable, the appellants have stated that the said writ petition has been filed by altoghther different persons and the applicants have nothing to do with the same. May be the grounds raised there in the writ petition and this application are one and the same, still this application is maintainable under Section 14 read with Section 16 of the NGT Act. NGT is an independent judicial Tribunal constituted exclusively to deal with the environmental

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litigation. Therefore, after formation of the Tribunal, the pendency of the writ petition does not bar the applicants from approaching this Tribunal and inviting judgment on merits. This argument of the applicant does not inspire the confidence of this Tribunal to deal with the matter - when a similar and identical matter is pending decision of the Hon’ble High Court of Uttarakhand. The judicial discipline requires that when the matter is already under the consideration of a constitutional court, a statutory Tribunal like ours cannot venture to proceed with the matter pending here. Further, once similar and identical questions are involved in both the cases, it may result in conflicting decisions. Many a times it happens that the issues that arise in grant of environmental clearance and forest clearance are identical and overlapping and such issues when pending decision in the writ petition before the High Courts, we cannot proceed with the matter if it brought to the knowledge of this Tribunal as in the present case. Therefore, it is not possible for us to take up the matter for hearing and decision at this stage. Further, in this case, challenge is made against two projects for which forest clearance was granted. This is not the proper procedure. We have also perused the prayer portion of the application. Out of four prayers, the prayer Nos. 2, 3 and 4 are general in nature and not specific relating to the case on hand. In the prayer No. 1 the forest clearance granted against the two projects is sought to be cancelled. Admittedly, the forest clearances against these two projects were granted more than two years ago and therefore, challenging the forest clearance at this stage does not arise. Of course, the appellants’ endeavor is that since the cause of action arose on 23.6.2011 when a news item appeared in the newspapers that a crack has occurred due to blasting operations in the tunnel, therefore, the forest clearance can be cancelled as the blasting has resulted for not taking the mitigative measures and principle of precautionary measures. In a given case, even if a project is granted clearance as per law and if it is found that

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the mitigative measures are not adhered to as per law and resulted in negative impact on environment and ecology and a substantial question of law had arisen, we can definitely look into such matters and decide on its own merits and direct appropriately the proponent to take mitigative measures to satisfy the precautionary measures. Suppose, there is no possibility of improving the situation which resulted in environmental and ecological threats, appropriate steps may have to be taken by this Tribunal while keeping in view the principles of sustainable development; the precautionary principle and the polluter pay principle. May be the forest clearance cannot be directly dealt with but we can definitely examine the matter in the light of the above discussion. For all the above reasons we are of the opinion the application in this shape is also maintainable. However, the matter cannot be heard unless and until the matter is decided by the Hon’ble High Court of Uttarakhand in writ petition No. 38 of 2011. Further, the applicants are directed to re-submit the application in its proper form as required under the rules duly serving papers in advance on the respondents. The parties shall intimate the Registry of this Tribunal as and when the writ petition before the Hon’ble High Court of Uttarakhand is disposed of or withdrawn as the case may be. Post the matter after intimation is received from the parties. (Dr. Devendra Kumar Agrawal) (Justice Shri C.V. Ramulu)

Expert Member Judicial Member