Kanhar Dam: Evaluating the National Green Tribunal Judgment and Its Implications

26 May 2015
THE people's movement against the illegal construction of the Kanhar Dam and illegal land acquisition in the Sonbhadra district of Uttar Pradesh has been vindicated to some extent by the verdict of the National Green Tribunal (NGT) on May 7, 2015, which has put a stop on any new activity at the site without specific recommendations of the High Level Committee constituted by the NGT.

As already reported in previous issue of Red Star, peacefully protesting villagers – mostly belonging to the Adivasi and Dalit communities – were fired upon by the police on April 14, Ambedkar Jayanti, and one of the protestors Aklu Chero suffered bullet injury. The protestors again faced brutal lathi-charge and firing on April 18. Instead of initiating dialogue with the people the UP government and Sonbhadra district administration resorted to state repression to quell the movement.

The petition against the construction of Kanhar dam was filed in the NGT by O.D. Singh and Debadityo Sinha in December 2014, the respondents in the case being the State of UP (through its Chief Secretary), Department of Irrigation, Government of UP and Union of India (through the Secretary, Ministry of Environment, Forests & Climate Change).

In its judgment of May 7, the NGT seemed to be caught between its commitment to environmental protection and the compulsion to remain, in the final analysis, in favour of the government and all its questionable projects. Thus it dismissed the applicant's argument that the construction of the dam be halted until the state government had sought fresh environmental clearance as opposed to the nearly 35-year-old consent order of the forest department, while staying any new construction on the site.

The NGT judgment effectively upholds the people's claim that the construction of the Kanhar dam is illegal, does not have almost any environmental clearance, will have a huge impact on the environment and adversely affect the lives and livelihoods of thousands of people. However, despite such unambiguous pronouncements in its judgment, the NGT has allowed the ongoing construction to be completed. This is not only contradictory to the spirit of the rest of the judgment and the legitimate aspirations of the people, but will also allow all kinds of new activity to be passed off as ongoing activity and the harmful project to be completed.

The NGT judgment notes: "The project of this nature and dimension, certainlyrequires unambiguously stated conditions for avoiding, and in anycase, minimizing its adverse impacts on environment, ecology, rivers and biodiversity of the area in question. As already noticed, the project was conceived in the year 1976-1977 and Environmental Clearance was granted to it on 14th April, 1980. The Environmental Clearance to the project was in very general terms. It imposed certain conditions which we have already referred above. The Project Proponent was required to prevent erosion and removal of scars, take effective steps in regard to restoration of the land, take due care of health problems likely to arise due to water/soil-borne disease. The Project should involve minimum possible deforestation. Compensatory afforestation and social forestry should be undertaken on a large scale. The socio-economic profile of the affected (adivasis) population should be prepared to determine the problems likely to be encountered in their rehabilitation. Due rehabilitation scheme should be formulated. There is nothing on record before us to show complete or evenpartial compliance to these conditions except vague averments....... There is no report before us by inspection team, by MoEF or any other competent authority that the project has progressed strictly in terms of these conditions, which in any caseare very general in nature.... At the cost of repetition, we may also notice that no order granting Forest Clearance to the project had been placed on record, despite repeated opportunities. It is a matter of surprise that none of the respondents including the Project Proponent are able to produce Forest Clearance to the project, which is the very foundation for commencement of project." (Emphasis ours)

One should have thought that the above pronouncement of the NGT was itself enough ground to stay all construction at the site. But that was not to be.

Rather than issue the order to stop all work at the site till environmental and other issues had been properly assessed and resolved, the NGT chose to allow ongoing work to proceed on the plea that a huge amount of money had already been spent on the project. The NGT ruled: "We are not inclined to accept the contentions of the applicant and grant prayer that the project work should be stopped and it should not be permitted to continue till the Project Proponent seeks fresh Environmental Clearance. In our considered opinion, it would neither serve the interest of the environment or ecology nor would it serve public purpose. Huge amounts have been spent on this project. The project which was expected to cost the nation27.75 Crores, is now costing the country 2252.29 Crores at 2013price level. Stoppage of work would further enhance the cost of construction and would be unnecessary burden on public exchequer."

These words reveal the staggering amount of money an admittedly cash-strapped government has had no qualms in spending on a project that 3 decades since its inception is nowhere near completion. The fact clearly underscores the anti-people nature of the project. The NGT's words, in fact, do not support its own conclusion. When it is not at all clear that the project will be able to get environmental clearance, why continue with it and intensify the pressure on the exchequer for something that may spell destruction to the environment and bring misery to the people? Is it because it is assumed that an environmental clearance will somehow be 'managed' despite the cost to the environment?

Paradoxically although Sonbhadra is one of the highly industrially developed districts of Uttar Pradesh, it is also a district which is classified as one of the 250 most backward districts in the country. The district is also one of the districts which have high percentage of forest cover. As against the forest cover of less than 6 % for the entire state of UP, Sonbhadra District accounts for about 38 % of the forest cover. Although large scale industrial development has taken place in and around Sonbhadra, it has not improved the lives of the local population in terms of prosperity and health. Any project should intend to provide and inject better facilities of living and better environment to the area in question.

The industrial development that has taken place in the last 30 to 40 years has created a great deal of environmental stress. Air and water pollution has increased manifold. Mining activity has resulted in large dumps of over burden being created which is physically, nutritionally and micro biologically harming the environment and impoverishing the ecosystem. This has also led to soil erosion and contamination of rivers including adverse impact on agricultural lands through leaching of heavy metals. Pollution Control Board reports suggest presence of mercury, arsenic and fluoride in the ground water which is entering the food chain and thereby, affecting the health of the people. It therefore does not come as a surprise that the Singrauli region, of which Sonbhadra district is a part, was identified as a critically polluted area by the Pollution Control Board as far back as 1991. As a consequence, the Government of India placed a moratorium on setting up of new industries in the region in 2010. Thus environment clearance of 1980 makes no sense in the changed situations and warrants a fresh approval, especially when actual work on the project started after 2010 when the Central Water Commission gave its approval.

The NGT has itself admitted that: "Whatever be the situation at site, very substantial work of the project is still to be completed. Even the photographs placed by the Respondents on record do not show that the project is anywhere near to its completion. We are of the considered view that even if the project is treated to be an ongoing project, even then, its impact on environment, ecology and biodiversity of the area is required to be considered objectively and in its correct perspective. We have already noticed that it is not a site oriented project but is a huge project, which will have diverse impacts on a very large area and number of villages falling in the territory of the three States namely Uttar Pradesh, Jharkhand and Chhattisgarh. Nature of the project involves tunneling, making of canals, roads, bridges and other concrete works which all would, in the normal course of events have an impact on the environment. The Environmental Clearance which was granted 33 years back cannot be held as good in the field of environment. With the progress in time and the developments that has taken place during this long time, are certainly of relevant consideration for examining the environmental impact of the project on the area in question. The applicants' plea that the project activity which has started at a massive scale in the recent past is bound to have impact on environment, aquatic ecology, forest and terrestrial bio-diversity, wild life habitat, climate change and would also result in loss of medicinal plants and rich biodiversity is an element of merit.

From the pleadings of the parties and the documents on record, it is evident that hardly anyconstruction or other major activity had taken place prior to 1994.The consent of the other States came in the year 2002 and 2010 respectively. The Central Water Commission granted approval in September, 2010. The cumulative effect of these documents seen in light of the circumstances of the case clearly shows that the project implementation took off in the recent past and not years back. After coming into force of Environmental (Protection) Act, 1986, the Ministry of Environment and Forests had issued a Notification dated 27th January, 1994 requiring any person who desires to undertake any new project and in any part of India, or expansion or modernization of any industry or project listed in Schedule I to the Notification had to submit an application to the Ministry to seek Environmental Clearance for the project. Schedule I to the Notification included hydro power, major irrigation projects and/ortheir combination including flood control projects. In view of the peculiar facts and circumstances of this case, it was expected of the Project Proponent to seek Environmental Clearance in terms of the Notification of 1994, which apparently he did not....The object of environmental laws is to protect the environment, ecology and public health in the interest of society. It would be impermissible to throttle the compliance to these laws on the assumption that such laws would not be applicable to the existing units or to the units or the projects which are ongoing or are at their very initial stage of construction."

In spite of this assertion, the NGT, as stated above, did not stay work on what in unarguably illegal construction. What it did was to constitute a High Level Committee consisting of (a) Principle Chief Conservator of Forest (Uttar Pradesh) or his representative, (b) Chairman or his Nominee of Expert Appraisal Committee of River Valley and Hydro Power Projects of Ministry of Environment, Forest and Climate Change, (c) Member Secretary, Central Pollution Control Board, (d) Representative of Ministry of Environment, Forest and Climate Change, (e) Representative of Central Water Commission, (f) Chief Engineer, Department of Irrigation, State of Uttar Pradesh, (g) Chief Engineer, Department of Irrigation, State of Chhattisgarh and (h) Expert from IIT, Kanpur.

The Committee has been mandated to: a) Specifically report whether the conditions imposed in the consent order dated 14th April, 1980 and 27th February, 1982 of the Forest Department have been strictly complied with or not, in all respects; b) While examining the compliance of the conditions, as noticed above, specifically report whether the conditions have been complied with in its entirety or not. What is the status thereof and what steps are required to be taken in that regard?; c) Report whether there is complete and comprehensive Resettlement and Rehabilitation Policy in place in relation to the project; d) Specify the modifications (if any) in execution of the project required to ensure protection of environment and ecology in the execution of the project in question; e) Make its general recommendations, measures and the conditions that should be imposed upon the project proponent to ensure that further progress of the project does not have any adverse impacts on ecology, environment, rivers, hydrology, biodiversity and on all the surrounding forests, villages and tribes, f) Assess and examine the present status of the compensatory afforestation done by the forest department during 1984, 85 and 86 over an area of 666 hectares and 80 km on the road side, and make assessment of the survival percentage and the present status of compensatory plantation through random sampling; g) Examine the proposal of Project Proponent with reference to the forest area already diverted (980.40 Hectare) and the balance area of 441.07 hectares that is required to be diverted in terms of the note prepared by the Administrator of the project while seeking clearance for the project; h) Study the impact of loss of 980 hectares of forest area which is comprised of wild life habitats with specific reference to the elephant corridor, rich floral and faunal diversity, i) Examine whether social forestry for ameliorative measures against air pollution and adverse impact on local ecology and environment has been taken up and to what extent. The committee shall also suggest measures as to how the resettlement colonies particularly, if located close to the industrial clusters of Sonbhadra, can be protected from the adverse effects of thermal power plants, coal and bauxite mining, aluminum and cement industries, particularly, form the air and water pollution and health impacts due to Mercury, Arsenic and Fluoride contamination and as a consequence of the presence of large number of industries in the District of Sonbhadra in particular and Singrauli in general; i) Examine maintenance of certain minimum environmental flow downstream of the Dam in the light of the fact that the Kanhar River flows through toa drought prone area where water is a critical input for the life supports systems, both on land and within the aquatic ecosystem; j) While preparing the comprehensive report take into consideration, if there is any adverse impact of the works already executed, on the environment and ecology of the areas and the remedial steps that should be taken; and k) Pay specific attention in regard to the conditions that should be imposed upon the project proponent for conservation, protection, reforestation, restoration of environment and ecology wherever any environmental damage or degradation has occurred as a result of this project.

The NGT also ruled, "The Project Proponent shall complete the construction or activity that is under way and would not commence any new activity or construction without specific recommendations of the Committee in that behalf."

Although the high level committee seems to have been entrusted with a wide range of responsibilities to ensure environmental conservation, a few points stand out and indicate the NGT's tilt towards the government and away from the people. First, the largest stake holders of the project – namely the affected people and their organisations – have been excluded from the Committee. Surely, for the Committee to have been effective, the representation of people's voice had to be compulsory? Secondly, although the Committee has been asked to specifically report whether the conditions imposed in the consent order dated 14th April,1980 and 27th February, 1982 of the Forest Department have been strictly complied with or not, in all respects, there is nothing in the NGT's judgment to indicate what step it would take if such compliance was found to be lacking.

Would the NGT then direct the scrapping of the project? That it has no intention of moving in that direction is amply clear from its questionable contention that the project must go on – whatever the environmental cost – because a lot of money has already been spent on it. Why then ask the Committee to report on the status of compliance? Thirdly, though the NGT has directed that no new construction should be started, there is no clarity as to who will ensure compliance with this direction. Finally, it is indeed remarkable that no time limit has been given to the Committee within which it must make its report. A Committee whose work is not time- bound – many a past experience has proved– is actually toothless.

The order to constitute the Committee appears, for the time being at least, to be nothing short of an eyewash, intended to pacify the protesting people while at the same time giving the government leeway to go on with its illegal work.

At the same time, it is also likely that whatever positive aspects the NGT's judgment has will see no reflection in reality. With the Sonbhadra district administration, police and UP government bent on gagging people's voice and going ahead with the Kanhar Dam, there will be hardly anyone to ensure that the NGT's directives are being adhered to.

This region of Sonbhadra comes under the Forest Rights Act 2006, but no efforts were made to get the consent of the Gram Sabha for such a project. The people of five villages have filed a case in the Allahabad High Court under section 24(2) of the Land Acquisition Act 2013 whereby people are supposed to be returned land acquired for projects if that has not been utilized for five years, but the court has not yet responded – probably it is waiting for the changes in the Act as proposed by the BJP government where such provisions are proposed to be scrapped.

It remains to the people – the Dalits and the Adivasis and all the local people – and their organization to seize their rights and protect the environment. It is also the responsibility of all democratic and progressive sections of society to stand beside them in their struggle and show the government that all attempts to devastate the environment and pave the way for human calamity will be met with zero tolerance and total resistance.
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