Upholding Polluter Pays Principle, NGT Fines THDC Rs 50 lakhs for Polluting Alaknanda

The Tribunal Compels Accountability from the Power Project and the Governments essential to protecting our Natural Resources

The National Green Tribunal (NGT) has in a sharp and succinctly worded 25 page order rapped the Tehri Hydro Development Corporation (THDC) and the Uttarakhand government for dumping  muck, stones and soil directly into the Alaknanda river. Fining the corporation Rs 50 lakhs for the pollution on the Polluter Pays Principle, the NGT has ordered that all the dumped debris be removed by the THDC within four weeks failing which an additional Rs 25 lakhs will have to be paid up for default. The order was passed on April 13, 2017. The river is to be restored to its former condition and a committee appointed by the NGT to oversee the process.
The judgement was delivered on an application filed by Vimalbhai, an activist with the National Alliance for People’s Movements (NAPM) following an April 12, 2016 report published in the Hindi newspaper, Amar Ujala titled, “Dumping of Construction Debris into Alaknanda River.”
It was cogently urged in the application that this indiscriminate dumping of construction material and debris into the Alaknanda river (by the construction underway for the Vishugud-Pipalkoti Hydroelectric Power Project) is causing irreparable dam to the river. The judgement also upheld the claim of the petitioner that the conditions in the Environmental Clearance (EC) granted on August 22, 2007 imposed on the said Power Project were violated  by this callous dumping of debris.
The imposing Power Project to build a 65 meter diversion dam near Helang Village in Chamoli District of Uttarakhand (to enable the creation of a small reservoir on the river) had an installed capacity of 444 MW. The Power House of the Project is underground and situated near village Haat, about three kilometers from Pipalkoti. As much as 120 hectares of land was acquired for the project of which 40 hectares was agricultural land and 80 hectares government land: nearly 346 families were affected and re-located due to the project. THDC, in constructing a road between the power house of the hydro electric project and the river outlet, was dumping the muck and debris caused due to the road construction into the river. When the EC was finally granted to the project on August 22, 2007, the permission specifically stated that the muck had to be disposed of at the dumping site, above the high flood level.
Even before the article that appeared in Amar Ujala,  the petitioner, Vimalbhai had through a letter dated October 17, 2015, written to the GOI demanding the cancellation of the EC of the Vishugud-Pipalkoti Hydroelectric Power Project due to the non-compliance of the conditions.
Ironically, the Ministry of Environment & Forests(MOEF) has in its separate affidavit before the NGT stated that the Vishugud-Pipalkoti Hydroelectric Power Project was supposed to strictly adhere to the terms and conditions of the EC as laid down on August 22, 2007.
While delivering its unequivocal order holding the Vishugud-Pipalkoti Hydroelectric Power Project guilty of violating Sections of the Environmental Act, 2010, the NGT has also dismissed the arguments of the respondents that Vimlabhai’s application cannot be entertained since he is not a resident of Chamoli village.
“The construction of a Hydro-electric project in an eco-sensitive state like Uttarakhand would not be a localized issue of the village but its impact would be felt all over. The language of Section 14 read in conjunction with section 18 of the Act of 2010 clearly provides that the expression locus-standi will have to receive liberal interpretation and the application cannot be thrown out on this ground, if it otherwise raises a substantial question of environment in accordance to the implementation of any legal right in relation to the Acts mentioned in Schedule-I of the Act of 2010. In fact, this issue need not detain us, in view of the law settled by the Tribunal in the case of ‘Goa Foundation versus Union of India’ O.A. No 26 of 2012, All India NGT Reporter, 2013 (1), Part 5, Page 234, where it had held that the term ‘aggrieved person’ is to be understood in common parlance and cannot be confined within the bounds of a rigid formula. Aggrieved is a person who has suffered a legal grievance, against whom a decision has been pronounced or who has been refused something. This expression is very generic in its meaning and has to be construed with reference to the provisions of a statute and facts of a given case.
In the course of the hearing of the case, applicant Vimalbhai had filed photographs taken on April 15, 2016 showing the area near the project site where the road is being constructed along with the stones, muck, soil and other waste which are being thrown directly into the river. The photographs show that all this muck and construction waste is not only being thrown into the flood plains of the river but right into the middle of it.  Besides, in a rejoinder to the false claims made by the Project and state government, the applicant pointed out to the NGT that this direct dumping of muck into the river using heavy machinery such as trucks was being done even on April 29, 2016 well after the date when the project proponent claimed before the NGT to have stopped the work. The NGT categorically held that these photographs are clear evidence that the claims of the Vishugud-Pipalkoti Hydroelectric Power Project are completely false.
The order of the NGT upholds “the Polluter Pays Principle which makes it mandatory for the project proponent to take all possible precautions and ensuring that there should be no pollution resulting from such activities which if carried in normal course would cause pollution. Water body is a natural asset and resource. It is an entity in itself and is entitled to all protection in law. Environmental law in our country gives due protection to natural assets particularly rivers. It, in fact, places an obligation upon the State as well as stakeholders, including the project proponent to provide due protection to these rivers and ensure that they are not polluted.”
The NGT Order was passed by Chairperson of the NGT, Swatanter Keer, Judicial Member, Raghuvendra Rathore and Expert Member Bikram Singh Sajwan. Advocates Ritwik Dutta, Rahul Chowdhury and Ms Meera Gopal appeared for the applicant.
The NGT has granted the prayers made by the applicant that fall within the ambit and scope of the Section 14, 15 and 17 of the Act of 2010 since the damage to the Alaknanda River is obvious and stands proved on record.
Further the NGT has remarked that “It is unfortunate that the Vishugud-Pipalkoti Hydroelectric Power Project can take such a stand to shirk from the consequences of its irresponsible and negligent act. If the public authorities would carry projects in the present manner and would attempt to cause such depletion of natural assets as in the present case, the day is not far when these eco-sensitive areas would refuse to tolerate infliction of damage by the human beings using machinery and this may result in un-manageable and uncontrollable damage.
Detailing the extent to which the authorities and the corporation have violated environmental laws, the NGT states that,
“Applying the (above) settled principles of environmental jurisprudence to the facts and circumstances of the present case, there is no escape from the conclusion that the project proponent has utterly failed to comply with the fundamental principles of environment protection. It has violated the conditions of the EC.
“The Respondent (project proponent) has not even made an effort to bring on record as to which of the dumping sites have been earmarked for dumping of muck and what is their present status. The Respondent no. 1 has placed on record the documents to show the estimated capacity of the sites and likely generation of the waste from the excavation, etc.
“This itself shows lack of responsible behaviour on the part of the project proponent. It could have discharged its onus by placing on record before the Tribunal, documents to show the total extracted debris including from the project, how much of the muck had been deposited on the site and how all concerned persons i.e. the media, local authorities, officers, the applicant as well as the Pollution Control Board, other stakeholders had noticed that muck was indiscriminately thrown into the river. It is nobody’s case that the photographs in question are doctored and they are not of the actual sites.
“The stand taken by the respondents that PWD has also thrown the muck into the water bodies is no defence. In fact, the State Government itself being a party should have taken steps against the PWD for committing such environmental offence.
“The project proponent is liable to be directed to take preventive and precautionary measures coupled with the prohibitory orders that are patently called for, in the facts and circumstances of the present case.
“We are unable to condone these irresponsible omissions, acts, and avoidable damage to the nature. They have certainly polluted the water of the river. The analysis reports that have been placed on record do not show that these samples were collected at the relevant time and from the site in question where the muck was being thrown into the River. If the samples are taken upstream and downstream, the samples from the affected sites and the consequences that follow would be totally different and would be immaterial for determining the controversy in the present case.
“The photographs placed on record clearly show that even the colour of the water has changed along the course of the River. These are uncondonable breaches and actions. Development does not mean destruction of nature.
“The Respondent no. 1 has certainly violated the spirit of Principle of Sustainable Development and therefore must bear the consequences that will follow in law in the facts of the present case.
The entire order of the NGT may be read here.
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