# 11 S.C.R. 784 ALAKNANDA HYDRO POWER CO. LTD v. ANUJ JOSHI & ORS

- **Citation:** [2013] 11 S.C.R. 784
- **Court:** Supreme Court of India
- **Decided:** 2013-08-13
- **Case number:** Civil Appeal No. 6736 of 2013
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-s-c-r-784-alaknanda-hydro-power-co-ltd-v-anuj-joshi-ors-28704
- **Pages:** 62

## Headnote

Hydroelectric Power Project - Environmental and Forest
clearance for - Granted to project developer - Writ petition
C filed objecting to the clearance - High Court directing the
Ministry of Environment and Forest to hold public hearing -
On appeal, held: The project in question is ongoing project,
environmental clearance and forest clearance wherefor were
granted way back in 1985 and 1987 - 95% work is already
D over and nearly 4, 0001- crores been spent on the project -
No purpose would be achieved by way of public hearing at
this stage - Now the safety and security of the dam and the
people is of paramount importance - Directions issued to the
authorities concerned and to the project developer to give
E effect to recommendations made by the Technical experts.
Environmental Law - Mushrooming of large number of
hydroelectric projects in the state of Uttarakhand and its
impact on Alaknanda and Bhagirathi river basins -
Cumulative impact of those project components on ecoF system - Direction to Ministry of Environment and Forest to
constitute expert body to make detailed study as to the effect
of the projects on environmental degradation - Till then
MoEF as well as State Government directed not to grant any
hydroelectric power project - Disaster Management Authority
G of the State also directed to submit its report to the Supreme
Court as to whether they had any disaster management plan
for combating unprecedented tragedy in the State of
Uttarakhand.
H
784
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
785
JOSHI
The Srinagar Hydro Electric Project (SHEP), which
A
was basically run-of -the-river Scheme, was given
Techno-Economic approval for 200 MW by Central
Electricity Authority in 1982, subject to environmental
clearance. After being segregated from other Ganga
Valley Projects, a separate Environment Impact B
Assessment (EIA) of the Project was made in 1985. A
temple (Dhari Devi Temple) which was likely to be
submerged in water, it was suggested in the Assessment
that the height of the same would be raised. The Ministry
of Environment and Forest also granted environmental c
clearance for the Project. Later the capacity of the Project
was enhanced to 330 MW in 1987, which was duly
approved and Planning Commission also accorded
investment approval. However, effective progress was
not made in the Project due to paucity of funds.
·Pursuant to liberalisation policy, the State invited
private investment in the Project and MOU was entered
into with a private company. The State GovernJTient
requested Ministry of Environment and Forest to transfer
D
the environmental clearance to the private company and
E
the clearance was transferred for 330 MW in the year
1999. Techno-Economic clearance for implementation of
the project was also issued to the private company. The
Project, therefore, was transferred to the appellantcompany and environmental clearance was transferred
F
in its favour in the year 2006.
Respondent No.1 filed writ petition challenging the
decision as to environmental clearance for the increased
capacity of generation i.e. 330 MW. Ministry of G
Environment and Forest by its letter dated 3.8.2011
clarified that transfer in favour of the appellant-Company
was for 330 MW. High Court disposed of the petition
directing the appellant-Company to place the document
before Ministry of Environment and Forest and further
H
786
SUPREME COURT REPORTS
[2013) 11 S.C.R.
A directed the Ministry to hold public hearing. Hence, the
present appeals.
Certain litigation had also been initiated before
National Green Tribunal on the issue. The proceedings
8 before the Tribunal have also been transferred to this
Court.
Disposing of the appeal and transferred cases, the
Court
c
HELD: 1.1. Srinagar Hydro Electric Project is an
ongoing project for which environmental clearance was
granted as early as in the year 1985 and forest clearance
in the year 1987. Further, about 95 % of the work is
already over and nearly Rs.4,()00 crores has been spent.
o If public he

## Text

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A
B
[2013) 11 S.C.R. 784
ALAKNANDA HYDRO POWER CO. LTD.
v.
ANUJ JOSHI & ORS.
(Civil Appeal No. 6736 of 2013)
AUGUST 13, 2013
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Hydroelectric Power Project - Environmental and Forest
clearance for - Granted to project developer - Writ petition
C filed objecting to the clearance - High Court directing the
Ministry of Environment and Forest to hold public hearing -
On appeal, held: The project in question is ongoing project,
environmental clearance and forest clearance wherefor were
granted way back in 1985 and 1987 - 95% work is already
D over and nearly 4, 0001- crores been spent on the project -
No purpose would be achieved by way of public hearing at
this stage - Now the safety and security of the dam and the
people is of paramount importance - Directions issued to the
authorities concerned and to the project developer to give
E effect to recommendations made by the Technical experts.
Environmental Law - Mushrooming of large number of
hydroelectric projects in the state of Uttarakhand and its
impact on Alaknanda and Bhagirathi river basins -
Cumulative impact of those project components on ecoF system - Direction to Ministry of Environment and Forest to
constitute expert body to make detailed study as to the effect
of the projects on environmental degradation - Till then
MoEF as well as State Government directed not to grant any
hydroelectric power project - Disaster Management Authority
G of the State also directed to submit its report to the Supreme
Court as to whether they had any disaster management plan
for combating unprecedented tragedy in the State of
Uttarakhand.
H
784
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
785
JOSHI
The Srinagar Hydro Electric Project (SHEP), which
A
was basically run-of -the-river Scheme, was given
Techno-Economic approval for 200 MW by Central
Electricity Authority in 1982, subject to environmental
clearance. After being segregated from other Ganga
Valley Projects, a separate Environment Impact B
Assessment (EIA) of the Project was made in 1985. A
temple (Dhari Devi Temple) which was likely to be
submerged in water, it was suggested in the Assessment
that the height of the same would be raised. The Ministry
of Environment and Forest also granted environmental c
clearance for the Project. Later the capacity of the Project
was enhanced to 330 MW in 1987, which was duly
approved and Planning Commission also accorded
investment approval. However, effective progress was
not made in the Project due to paucity of funds.
·Pursuant to liberalisation policy, the State invited
private investment in the Project and MOU was entered
into with a private company. The State GovernJTient
requested Ministry of Environment and Forest to transfer
D
the environmental clearance to the private company and
E
the clearance was transferred for 330 MW in the year
1999. Techno-Economic clearance for implementation of
the project was also issued to the private company. The
Project, therefore, was transferred to the appellantcompany and environmental clearance was transferred
F
in its favour in the year 2006.
Respondent No.1 filed writ petition challenging the
decision as to environmental clearance for the increased
capacity of generation i.e. 330 MW. Ministry of G
Environment and Forest by its letter dated 3.8.2011
clarified that transfer in favour of the appellant-Company
was for 330 MW. High Court disposed of the petition
directing the appellant-Company to place the document
before Ministry of Environment and Forest and further
H
786
SUPREME COURT REPORTS
[2013) 11 S.C.R.
A directed the Ministry to hold public hearing. Hence, the
present appeals.
Certain litigation had also been initiated before
National Green Tribunal on the issue. The proceedings
8 before the Tribunal have also been transferred to this
Court.
Disposing of the appeal and transferred cases, the
Court
c
HELD: 1.1. Srinagar Hydro Electric Project is an
ongoing project for which environmental clearance was
granted as early as in the year 1985 and forest clearance
in the year 1987. Further, about 95 % of the work is
already over and nearly Rs.4,()00 crores has been spent.
o If public hearing is found necessary then the same
should have been held before granting environmental
clearance. The purpose of public hearing is to know the
concerns of the affected people and to incorporate their
concerns
appropriately
into
the
Environment
E Management Plan and it is after incorporation of the
concerns and revision/modifying plan, the final
Environment Management Plan would be submitted to
the Ministry of Environment and Forest for granting
environmental clearance. No purpose would be achieved
F by way of a public hearing at this stage. The various
Committees' reports and the report dated 3.5.2013 that
the members of the Committee had met the Dhari Devi
temple trustees, priests and residents of the locality, they
had not raised any objection for not holding a public
hearing. Further, the State of Uttarakhand has also never
G canvassed for a public hearing nor any complaint was
received by the temple authorities or the worshippers
raised any complaint of not holding any public hearing
there. Therefore, the direction given by the High Court
directing the MoEF to hold a public hearing, is set aside.
H [Para 18] [800-H; 801-A-E]
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
787
JOSHI
1.2. Das Committee, Chaturvedi and Joint Team
A
constituted on the basis of direction of this Court have,
therefore, fully endorsed the views made by Indian
National Trust for Art and Cultural Heritage {INTACH) on
Dhari Devi Temple. There is no reason to differ from the
views expressed by the expert committee, which was
B
submitted hearing all the affected parties, including the
Trustees of the Temple, devotees, Pujaris etc. Committee
reports to that extent stand accepted. [Para 32] [834-E-F]
1.3. It is also not correct to say that by accepting the
C
suggestions of all the expert committees to raise the
temple as such to a higher place, would wound the
religious feelings of the devotees or violate the rights
guaranteed under Article 25 of the Constitution. Sacred
rock on which the temple exits is still kept intact and only
the height of the. temple is increased so that the temple
D
would not be submerged in the water. [Para 33] [834-GH; 835-A]
2. Dam safety and security is a matter of paramount
importance, failure of which can cause serious
E
environmental disaster and loss of human life and
property. Proper surveillance, inspection, operation and
maintenance of dams is essential to ensure for safe
functioning of the Dams. The Central Water Commission
(CWC) is a premier technical organisation of India in the
F
field of water resources. The Commission is also
entrusted with the general responsibilities of initiating,
coordinating and furthering, in consultation with the State
Governments concerned, schemes for control,
conservation and utilisation of water resources
G
throughout the country for the purpose of flood control,
irrigation, drinking water supply and water power
development Safety of dams is the principal concern of
the State Government. The State Government has also to
carry out investigation, planning, design, construction
H
788
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A and operation. The appellant-Company says, so far as
SHEP is concerned, engineering and technical
parameters of the dam are clearly narrated in the detailed
project report which, in turn, are assessed by Central
Electricity Authority (CEA) in consultation with the CEC
B and GSI. The norms and regulations laid down by the
concerned authorities, and whether those are strictly
followed or not, have to be assessed and monitored by
the Nodal Agency, CEA/Ministry of Power as well as the
GSI. [Para 35) [835-E-H; 836-A]
c
3.1. Safety and security of the people are also of
paramount importance when a hydro electric project is
being set up and it is vital to have in place all safety
standards in which public can have full confidence to
safeguard them against risks which they fear and to avoid
D serious long term or irreversible environmental
consequences. The question as to whether the recent
calamities occurred at Uttrakhand on 16.6.2013 and,
thereafter, due to cloud burst, Chorabari Lake burst due
to unprecedented rain and consequent flooding of
E Alaknanda river etc. has affected the safety of SHEP has
also to be probed by the MoEF, State of Uttarakhand and
Dam Safety Authority etc. [Para 36) [836-B-D]
3.2. ConstructiQn of the project involving excavation
F of earth and rock has generated large quantum and with
the objective to protect the disposal areas from further
soil erosion and develop the surrounding areas in
harmony with the environment, the muck disposal plan
is formulated. Muck disposal plan gives quantification of
muck, identifies location and activities wherein muck is
G generated, during excavation and blasting operation and
quantifies muck generated from the activities with
relevance to disposal areas. The Das Committee visited
the project site and submitted a status report on 29-30
August, 2012 which has dealt with muck disposal. Report
H
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
789
JOSHI
of the Joint Committee dated 03.05.2013 also refers to the
A
appellant-Company's action plan regarding muck
management and disposal and recommended that
remaining work, particularly, of the permanent site No.8
and 9 be carried out at the earliest. The appellantCompany has given the details of the work carried out
B
for muck disposal. Failure of removal of muck from the
project site may also cost flooding of the project areas,
causing destruction to the environment and to the life of
property of the people. MoEF and State Government and
all other statutory authorities would see that the c
appellant-Company takes proper action and steps for
muck management and disposal. [Para 37] [836-E-H; 837A-B]
3.3. Catchment Area Treatment (CAT) is required to
be carried out by the project developer along with R & R
D
and greenbelt activities, primarily to mitigate the adverse
environmental impact created by the project construction.
CAT is also resorted to reduce the inflow of silt and
prevent sedimentation of reservoirs. CAT management
involves steps to arrest soil erosion, rehabilitation of E
degraded forest areas through afforestation, controlling
landslide and rockfalls through civil engineering
measures and long time maintenance of afforestation
areas. Silt inflows in river water not only result in
reduction in storage capacity of dams, but also lead to
F
increased wear and tear of turbines. Therefore, CAT is of
crucial importance with regard to hydro electric projects.
CAT plan has been prepared by the Uttarakhand Forest
Department and the Project Proponent has paid the'
estimated amount of Rs.22.30 crores to the State Forest G
Department towards implementation of CAT Plan. [Para
38] [837 -C-F]
3.4. Appellant-Company has deposited first year
budget of Rs.203.6 lakhs to the State Forest Department
for green belt rim of the reservoir in August 2012.
H
790
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A Although green belt area is earmarked, the technical
documents based on the maximum flood level in the
reservoir, the rim of the reservoir, could only be
determined and developed after reservoir is impounded.
Proper steps would be taken by the Forest Department
B of Uttarakhand to carry out the green belt development
area in question. The MoEF, the State Government etc.
would see that the proper steps would be taken by all the
authorities including the appellant-Company to give effect
to the directions given by the Joint Team. [Para 41] [838C F-H]
3.5. Going through the reports of Das Committee,
Chaturvedi Committee as well as the Joint Team and after
perusing the affidavits filed by the parties, there is no
reason to hold up the project which is almost nearing
D completion. MoEF, the appellant-Company, Government
of Uttarakhand, Forest Department would take immediate
steps· to comply with all the recommendations made by
Joint Team in the report dated 03.05.2013 and also
oversee whether appellant-Company is complying with
E those directions as well. [Para 42] [839-A-B]
4.1. The Court is, however, very much concerned
with the mushrooming of large number of hydroelectric
projects in the State of Uttarakhand and its impact on
F Alaknanda and Bhagirathi river basins. Various studies
also indicate that in the 1,.1pper-Ganga area, including
Bhagirathi and Alaknanda rivers and their tributaries,
there are large and small hydro power dams. The
cumulative impact of those project components like
G dams, tunnels, blasting, power-house, muck disposal,
mining, deforestation etc. on eco-system, is yet to be
scientifically examined. The AHEC Report has not made
any indepth study on the cumulative impact of all project
components like construction of dam, tunnels, blasting,
p_ower-house, Muck disposal, mining, deforestation etc.
H
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
791
JOSHI
by the various projects in question and its consequences
A
on Alaknanda as well as Bhagirathi river basins so also
on Ganga which is a pristine river. [Paras 44 and 46) [839D-F; 840-E-F]
4.2. The above mentioned Reports would indicate the
B
adverse impact of the various hydroelectric power
projects on the ecology and environment of Alaknanda
and Bhagirathi river basins. The cumulative impact of the
various projects in place and which are under
construction on the river basins have not been properly
C
examined or assessed, which requires a detailed
technical and scientific study. [Para 50] [844-C-D]
4.3. The MoEF as well as State of Uttarakhand is
directed not to grant any further environmental clearance
or forest clearance for any hydroelectric power project in
D
the State of Uttarakhand, until further orders. MoEF is
directed to constitute an Expert Body consisting of
representatives of the State Government, Wll, Central
Electricity Authority, Central Water Commission and
other expert bodies to make a detailed study as to
E
whether Hydroelectric Power Projects. existing and under
construction have contributed to the environmental
degradation, if so, to what extent and also whether it has
contributed to the present tragedy occurred at
Uttarakhand in the month of June 2013. MoEF is directed
F
to examine, as noticed by Wll in its report, as to whether
the proposed 24 projects are causing significant impact
on the biodiversity of Alaknanda and Bhagirath River
basins. The Disaster Management Authority, Uttarakhand
would submit a Report to this Court as to whether they
had any Disaster Management Plan is in place in the
G
State of Uttarakhand and how effective that plan was for
combating the present unprecedented tragedy ,at
Uttarakhand. [Para 51] [844-G-H; 845-A-D]
Narmada Bachao Ando/an vs. Union of India and Ors.
H
792
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A (2000) 10 SCC 664: 2000 (4) Suppl. SCR 94 Lafarge Umiam
Mining (P) Ltd. vs. Union of India (2011) 7 SCC 338: 2011
(7) SCR 954; Orissa Mining Corporation vs. MoEF (2013) 6
sec 476 - referred to.
B
c
D
Case Law Reference:
2000 (4) Suppl. SCR 94
referred to
Para 14
2011 (7) SCR 954
referred to
Para 15
(2013) 6 sec 476
referred to
Para 26
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6736 of 2013.
From the Judgment & Order dated 03.11.2011 of the High
Court of Uttarakhand at Nainital in WP (PIL) No. 68 of 2011.
WITH
C.A. No. 6746-6747 of 2013, T.C. Nos. 55,56 &57 of 2013.
Himanshu Shekhar, Pukhrambam Ramesh Kumar,
E Petitioner-in-Person for the Appellant.
F
Santosh Singh, B. Krishna Prasad, Rachana Srivastava,
Himanshu Shekhar for the Respondents.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Leave granted.
2. Srinagar Hydro Electric Project (SHEP) located in Tehri
I Pauri Garhwal district of Uttar Pradesh was a project
envisaged by the then Uttar Pradesh State Electricity Board
G (UPSEB) on river Alaknanda, which was basically run-of-theriver scheme.
3. The Techno-Economic approval of the scheme was
granted for 200 MW by the Central Electricity Authority (CEA),
H a competent authority exercising powers under Section 29 of
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
793
JOSHI [K.S. RADHAKRISHNAN, J.]
the Electricity (Supply) Act, 1948, in its meeting held on
A
6.11.1982, subject to the environmental clearance from the
Ministry of Environment. SHEP was later segregated from
twenty two other Ganga Valley projects. A separate
Environment Impact Assessment (EIA) was made on the SHEP
on 9.2.1985. No adverse affect had been noticed on
B
environment in that assessment on setting up of the Project. On
the contrary, it was felt that such a scheme would add to the
richness of the scenic beauty by creation of beautiful lakes
attracting more tourists and also meet the energy requirements
of the State and could be completed within a short span of five
C
years. Dhari Devi Temple, it was noticed, was likely to be
submerged in water, therefore was also considered while
considering the Environmental Impact Assessment (EIA). It was
suggested that temple would be raised and created with a
pleasing architecture suiting the surroundings.
D
4. The Ministry of Environment and Forest (MoEF) granted
Environmental Clearance for the project to UPS EB vide its letter
dated 03.05.1985 subject to certain safeguards. The project
involved diversion of forest land to the extent of 338.38 hectares
E
which was cleared by the Forest Department vide proceeding
No. 8-227/86-PC dated 15th April, 1987, in accordance with
Section 2 of the Forest (Conservation) Act, 1980. The Project
involved construction of concrete gravity dam affording a gross
storage of 8 Mcum water conductor system designed for 660
F
cumecs and a power house with an installation of six units of
55 MW each. UPSEB later carried out a detailed study and
submitted a report stating that taking into consideration· the
peaking capacity, the installed capacity of the project would be
increased from 200 MW to 330 MW. CEA approved and
G
granted the Techno-economic clearance in the enhanced
capacity .of 330 MW vide its letter dated 18.12.1987. Planning
Commission vide its letter dated 29.01.1988 accorded the
investment approval. UPSEB started the work but due to the
H
794
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A paucity of funds the project could not make any effective
progress.
5. The Government of India, in the meanwhile, had
liberalized the policy to encourage private participation in
8 power development. Consequently, the UP Government
following the above mentioned policy decided to invite private
investment in the development of energy sector especially with
regard to the Srinagar Hydro Electric Project. Consequently, the
State Government had entered into a Memorandum of
c Understanding (MOU) with M/s Duncan Industries Ltd. on 27th
August, 1994 for development of the project and in terms of the
MOU, Mis Duncan Industries Ltd. had established a generating
company 'Duncan North Hydro Power Co. Ltd.'. The project
was an ongoing project and most of the infrastructure required
D for the execution of the project had already been arranged by
the State Government. The Department of Energy and
Government of Uttar Pradesh then wrote to the MoEF by letter
dated 04.09.1997 to transfer the environmental clearance
earlier granted to the UPSEB to the Duncans so that the
E safeguards against environmental degradation while clearing
the project might be implemented by the Duncans.
6. M/s Duncan submitted a revised EIA report and DPR
to the MoEF on 25.01.1996 and it was also conveyed that the
project of the enhanced capacity of 330 MW had to be
F transferred to the Duncans. MoEF following the letters dated
25.01.1996 and 18.06.1998 on the subject transferred
environmental clearance to Duncans for 330 MW on 27.07.1999
subject to the condition that the conditions stipulated in the
environmental clearance already granted and any other
G conditions, if stipulated in future for protection of the environment
would be fulfilled by Duncans. CEA also issued the Techno
Economic clearance for implementation of the Project vide it
letter dated 14.06.2000 to Duncans.
H
7. The Duncans had also given up the project after carrying
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
795
JOSHI [K.S. RADHAKRISHNAN, J.]
out some work and in its place came the appellant - Alaknanda
A
Hydro Power Company Ltd. (AHPCL). Request was then made
to the MoEF by AHPCL for transfer of the environmental
clearance granted to 330 MW Srinagar Hydro Electric Project
in its favour. Request was favourably considered by the MoEF
and vide communication J-12011/6/96/ IA-I dated 27th March
B
2006 MoEF transferred the environmental clearance in favour
of AHPCL stating that it was with the approval of the competent
authority.
8. First respondent along with few others filed Writ Petition
C
(PIL) No. 137/2009 before the High Court of Uttarakhand at
Nainital to quash the above mentioned order and sought a CBI
inquiry relating to the enhanced capacity of 330 MW mentioned
in the letters dated 27.07.1999 and 27.03.2006. Direction was
also sought for against AHPCL to stop the construction of the
D
Hydro Power Project and also for other consequential reliefs.
Writ Petition was disposed of on 19.04.2011 with a direction
to AHPCL to approach the MoEF for a specific decision as to
the clearance for increased capacity of generation and
increased height of the dam. The MoEF was directed to take
a decision within a period of three months. Court, however,
E
11oticed that the clearance had already been given by the MoEF
in the year 1985 which stood transferred in favour of AHPCL
for construction of the dam for generation of 200 MW of
e.lectricity and 63 metre height of the dam. The Court also
ordered that the construction of dam for the said height and for
F
generation capacity of 200 MW would not be stopped but the
construction beyond that limit could be proceeded only after
clearance is sought from the MoEF.
9. MoEF as directed by the High Court considered the
G
entire matter afresh and rendered a specific decision dated
03.08.2011clarifying that transfer letter dated 27.03.2006 in
favour of AHPCL was for 330 MW. The operative portion reads
as follows:-
H
A
B
c
D
E
F
G
H
796
SUPREME COURT REPORTS
[2013] 11 S.C.R.
'The matter has been reviewed by the Ministry and it is to
clarify that while transferring the environment clearance
dated 3rd May, 1985 of the Project in the name of Uttar
Pradesh State Electricity Board (UPSEB) to Mis. Duncans
North Hydro Power Company Limited vide this Ministry's
letter No. 12011/6/96-IA-I dated 27.7.1999 (copy
enclosed), the Ministry had reviewed that increased
capacity from 200 MW (4X50 MW) to 330 MW (5X66 MW)
and associated parameters like change in dam height
from 73m to 90m from the deepest foundation and FRL
from EL 604.0m to 605.5m. The Ministry also noted that
there was a change in the submergence from 300 ha to
324.074 ha, however Forest land remained the same i.e.
338.36 ha dated 15th April, 1987 which will be the final
Forest Land for the Project. Therefore, the final parameters
for the project are as follows:-
(i)
Submergence area - 324.074 ha
(ii)
Forest land for diversion - 338.86 ha
(iii)
Capacity - 330 MW (4X82.5 MW)
(iv)
Dam height from the deepest foundation - 90 m
(v)
Dam height for the river bed level - 66 m
{vi)
FRL - EL 605.5 m
(vii)
MDDL - EL 603.0 m
{viii) Dam top Road level - 611.0 m
In view of the. above, I am directed to clarify that the transfer
of environment clearance from DHPCL to Alaknanda
Hydro Power Company Limited (AHPCL) vide this
Ministry's letter No. J-12011/6/96-IA_I dated 27th March,
2006 is of 330 MW capacity with the above mentioned
parameters. The Ministry has further noted the change in
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
797
JOSHI [K.S. RADHAKRISHNAN, J.]
the units from 6X55 MW to 4X82.5MW, as approved by
A
CEA.
This has approval of the Competent Authority."
10. MoEF though clarified the position as directed by the
High Court, the first respondent herein along with one Dr. Bharat
8
Jhunjhunwala preferred Writ Petition (PIL) No. 68 of 2011
before the High Court of Uttarakhand at Nainital on 09.08.2011
challenging the order dated 03.08.2011.
11. Writ Petition was disposed of by the High Court
C
directing AHPCL to place the documents mentioned in
Schedule IV to the Notification dated 27 .01.1994 before MoEF
and the Ministry was directed to take steps to hold a public
hearing as envisaged in the Notification. Further, it was also
ordered that the notice should mention that the public hearing
D
would be given at Dhari Devi Temple premises and that the
Commissioner, Pauri Garhwal to be present at the public
hearing. Further, Court also noticed that the construction work
had progressed to a great extent and at no stage, there was
any objection to the construction of the project having a capacity
E
of 200 MW and, therefore, did not stop the construction,
however, it was made clear that the same would be subject to
the decision taken by the MoEF.
12. AHPCL, aggrieved by the above mentioned judgment,
has preferred this appeal by raising the core issue with regard
to the applicability of EIA Notification dated 27 .01.1994 in a
case where the project had been granted environmental
clearance for 200 MW on 3.05.1985 and thereafter for 330 MW
F
by the MoEF on 15.4.1987 and approved by CEA on
G
18.12.1987, followed by the sanction accorded by the Planning
Commission on 29.1.1988.
13. Respondents 1 and 2 in Civil Appeal arising out of
SLP (Civil) No. 362 of 2012 also filed SLP (Civil) Nos. 5849H
798
SUPREME COURT REPORTS
(2013] 11 S.C.R.
A
5850 of 2012 challenging the order of the High Court dated
3.11.2011 and the order dated 5.12.2011 passed on the review
petition contending that the finding recorded by the High Court
that they had not questioned the environmental clearance for
200 MW, was incorrect. They also wanted the stoppage of the
B project till the procedure laid in the EIA Notification 2006 is
complied with including the holding of a public hearing.
14. Mr. M.L. Lahoty, learned counsel appearing for the
appellant - AHPCL submitted that EIA Notification dated
c 27.01.1994 (as submitted upto 07.07.2004) would operate only
prospectively and that too only to those projects which are either
'new' or 'expansion or modernisation' of the existing project is
proposed after 1994 Notification. Learned counsel made
reference to the judgment of this Court in Narmada Bachao
D Ando/an v. Union of India and Others (2000) 10 SCC 664 and
submitted that the Notification would operate only prospectively.
Learned counsel pointed out that public hearing was expressly
excluded by para 4 of the Explanatory Note to the Notification
in respect of projects like Srinagar Hydro Project where neither
E large displacement is involved nor is there severe environment
ramification. Further, it was also pointed out that the expansion
of the project from 200 MW to 330 MW was granted in the year
1987 prior to the notification and even the original EIA of 1994
would not apply. Further, it was also pointed out that
F Amendment Act 77 of 2004 was incorporated simultaneously
with the explanation along with two Entries Nos. 31 and 32 to
bring within its purview the "new construction projects" and "new
industrial estates". Learned counsel pointed out so far as the
Hydro Projects are concerned, they are not covered by the said
two newly introduced Entries as from the very inception of 1994
G notification, Hydro Power Projects are covered by Rule 2 of
Schedule 1 and therefore the explanation so inserted also has
no application. Consequently, the concept of 'plinth level' is also
not applicable as it goes with the applicability of the
H Explanation.
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
799
JOSHI [K.S. RADHAKRISHNAN, J.]
15. Learned counsel also pointed out that the
A
environmental clearance even otherwise was issued in the light
of the specific decision of MoEF dated 03.08.2011 clarifying
that the transfer letter of 27.3.2006 in favour of AHPCL was for
330 MW. Learned counsel in support of his contention made
reference to the judgment of this Court in Lafarge Umiam
B
Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338. Learned
counsel also pointed out that the project in question was
conceptualized more than three decades back. As on date the
project stands almost completed and more than Rs.4000 cores
had been invested and therefore, there is no question of holding
C
a public hearing at this stage. Further, it was also pointed out
that State Government had ascertained views of the local
inhabitants, public representatives, Gram Panchayat,
Shopkeepers, Temple·Pujaris, Trust, devotees etc. and it was
considering their views,. the MoEF granted environmental
D
clearance and also forest clearance for the project.
16. MoEF in the counter affidavit filed on 25.7.2012 stated
that the project in question was granted environment clearance
in the year 1985 and hence it would not come under the purview
of EIA Notification of 1994 or EIA Notification of 2006 which
E
replaced the EIA Notification of 1994. Further, it was stated that
the construction of project was already in an advance stage and
hence public hearing would be an empty formality, since the
purpose of public hearing is to know the concerns of the
F
affected people and to incorporate their concerns appropriately
into the Environment Management Plan (EMP) for the project
and it is after incorporation of the concerns and revising/
modifying the EMP, the final EMP would be submitted to the
MoEF for granting environmental clearance to the project.
MoEF has, therefore, taken the stand that since environmental
G
clearance to the project had already been granted in the year
1985 prior to the coming into force of the Environmental
(Protection) Act, 1986 and the EIA Notification of 1994, no
public hearing was necessitated.
H
800
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
17. Shri Lahoty also pointed out that so far as the issue of
Dhari Devi temple is concerned, the Joint Committee had
endorsed and recommended that upliftment of the temple
adhering to the INTACH plan is the best option and has found
wide acceptability amongst Temple Samiti, Pujari, local
B inhabitants as well as local statutory authorities. Elaborate
arguments were also addressed by the learned counsel on
muck Management and submitted and that they had
substantially complied with the proposed directions under
Section 5 of the Environmental Protection Act. Arguments were
c also addressed on the Catchment Area Treatment Plan and
submitted that an amount of Rs.22.30 crores was deposited
with the Forest Department way back in 2007-09. Further, it was
also pointed out that the AHPCL had spent about 40 crores
for rehabilitation and resettlement of the affected people i~ the
D catchment area. For Greenbelt Development, it was pointed out
that an amount of Rs.2.30 crore was made available to 'the
State of Uttarakhand by AHPCL. Learned counsel, therefore,
submitted that the respondents are unnecessarily creating
hurdle in the completion of the project and litigation is not in
E public interest but for advancing the private interest of the
respondents.
18. We may indicate while going through the averments
made in the writ petition as well as the impugned judgment and
F the pleadings of the parties, it is seen that the question that was
primarily raised before the High Court was with regard to the
necessity of a public hearing and also whether the sanction had
been accorded to construct the project with the capacity of 330
MW. This Court in Narmada Bachao Ando/an case (supra) has
held that the 1994 Notification applies only prospectively, in any
G view so far as this case is concerned the el"!vironmental
clearance cannot be an issue in view of the specific stand taken
by MoEF and the orders dated 03.08.2011 passed by MoEF
which can also be considered as an ex post facto approval.
SHEP, it may be noted, is an ongoing project for which
H
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
801
JOSHI [K.S. RADHAKRISHNAN, J.]
environmental clearance was granted as early as in the year
A
1985 and forest clearance in the year 1987. Further, about 95
% of the work is already over and nearly Rs.4,000 crores has
been spent. If public hearing is found necessary then the same
should have held before granting environmental clearance. The
purpose of public hearing, it may be noted, is to know the
B
concerns of the affected people and to incorporate their
concerns appropriately into the EMP and it is after
incorporation of the concerns and revision/modifying plan, the
final EMP would be submitted to the MoEF for granting
environmental clearance. Environmental clearance, in the
C
instant case, had been granted in the year 1985 and the project
is an ongoing project which is now nearing completion and,
therefore, no purpose would be achieved by way of a public
hearing at this stage. We also notice from the various
'Committees' reports and the report dated 3.5.2013 that they
D
had met the temple trustees, priests and residents of the locality,
they had not raised any objection for not holding a public
hearing. Further, the State of Uttarakhand has also never
canvassed for a public hearing nor any co111plaint was received
by the temple authorities or the worshippers raised any
E
complaint of not holding any public hearing there. We, therefore,
set aside the direction given by the High Court directing the
MoEF to hold a public hearing.
19. We find that a new dimension has been added to this
F
litigation by initiating certain proceedings by group of litigants
before the National Green Tribunal, New Delhi. MoEF also, on
30.06.2011, in exercise of powers conferred under Section 5
of the Environment (Protection) Act, 1986 passed a stop work
order directing AHPCL to attend certain environmental issues
G
· which included (i) mounting Dhari Devi temple at a higher
elevation as per the Plan prepared by INTACH (ii) maintain and
manage muck at the various muck disposal sites by providing
retention wall, slopes, compacting and terracing etc. (iii) develop
greenbelt (iv) Catchment Area Treatment (v) undertaking
H
802
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A Supana Query restoration (vi) maintain minimum environmental
flow etc.
20. The second respondent and few others then
approached NGT vide Appeal No. 9 of 2011 praying for some
8
rigours orders against AHPCL. The appeal was, however,
disposed of by NGT directing MoEF to take a final decision
within a period of eight weeks. No decision was taken by the
MoEF within the time granted by the NGT which led AHPCL
filing M.A. No. 103/2012 before the NGT to revoke Section 5
c directions and allow AHPCL to continue the construction work
of the project.
21. The Tribunal (NGT) disposed of the application on
07.08.2012 expressing its anguish for not disposing of the
matter within the time granted by it. The AHPCL submitted that
D in spite of the fact that it had complied with all the requirements
stipulated in the notice dated 30.06.2011, unnecessarily the
project was held up causing huge financial loss to it. AHPCL
also sought a direction to transfer all the cases from NGT to
this court to be heard along with the appeal. Consequently, all
E those rel~ted matters were transferred to this case Court and
were heard along with these appeals.
22. We asked the Secretary, MoEF, when the matter came
for hearing, as to whether the conditions stipulated in its order
F dated 30.06.2011 had been complied with by the project
proponent. Committee headed by Dr. B.P. Das was constituted
by MoEF to examine whether the project proponent had
complied with the conditions stipulated in the environmental
clearance granted in May 1985 as well as Order dated
G 30.06.2011 and the copy of the Das Committee report of
August 2012 has been made available.
23. Reference was also made to the B.K. Chaturvedi
Committee Interim Report, as well as the final report, with
H regard to the environmental flow of Alakhnanda, Bhaghirthi and
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
803
JOSHI [K.S. RADHAKRISHNAN, J.)
other tributaries of Ganga which has also made some
A
reference to this project as well. After noticing Das Committee
Report and after hearing learned counsel on either side, this
Court thought it appropriate to constitute a joint team consisting
of officials of MoEF as well as State Government so as to
conduct an on the spot inspection of the project area in question
B
and to examine whether the project proponent had complied
with all the conditions stipulated in the environmental clearance
of May 1985 as well as Order dated 30.06.2011 of the MoEF,
which also referred to the issue of the protection of Dhari Devi
Temple. The joint team was directed to give an opportunity of C
hearing to second respondent as well. We have taken such a
course to give a quietus and finality to the various issues which
are long standing.
24. The Joint Team consisted of Professor R. Ramesh
D
National Centre Coastal Zone Institute, Chennai, Mr. Gambhir
Singh, Chief Conservator of Forests, Garwhal, Prof. R.
Sakthivakivel, International Water Management Institute, Mr.
Lalit Kapur, Director, MoEF and Dr. Arun Kumar, CSO, AHEC,
llT Roorkee as a Chairman of the Committee. This 5-members
E
Committee visited the project site including MUCK disposal
sites on May 1st and 2nd 2013 and heard the second
respondent as well as the AHPCL. The Committee also visited
Dhari Devi temple site and met trustees, priests and few
residents of village Dhari. The Committee also visited the
catchment area. The Committee examined as to whether the
AHPCL had complied with the conditions stipulated in the
environmental clearance of May 1985 and also the conditions
stipulated in forest clearance of April, 1987. The Committee
also examined whether the AHPCL had complied with the
conditions communicated under Section 5 of Environment G
(Protection) Act 1986 vide letter dated 30.06.2011, also issues
with regard to Dhari Devi Temple. The Committees, after
considering all those aspects, submitted its report on
03.05.2013. The operative portion of the same reads as follows:
F
H
A
B
c
E
F
G
H
804
SUPREME COURT REPORTS
[2013) 11 S.C.R.
"2. Compliance of Conditions stipulated In
Environmental Clearance of May, 1985.
1. Fuel Wood should be provided to the construction stage
so as to prevent indiscriminate falling of trees in the
neigbouring areas. The budgeted estimate should
therefore, be suitably augmented.
The AHPCL has informed that they have made
arrangements through their contractor to supply cooking
gas for all the workers of the project. Nearly three to four
hundred cylinders are used by the workers of all
contractors for cooking requirements. In case of nonavailability of gas, kerosene is used on limited occasions.
No fuel wood is used for cooking or any other purpose. In
case of any exigency wood is purchased from authorized
Government/Forest departments by the contractor.
2.Critically eroded areas in the catchment should be
identified for undertaking time bound soil conservation
program in the first phase, concurrently with the
construction works. The catchment area treatment plans
be worked out expeditiously.
Uttarakhand Forest Department has provided a status on
the CAT plan and green belt matter and is placed at
Annexure - 2.
Uttarakhand Forest Department is executing the CAT plan
through its four Divisions viz. Narendranagar,
Rudraprayag, Garhwal and Civil - Soyam Pauri Forest
Division. The proposed outlay of CAT plan for five year
period was Rs.22.03 crores deposited by the AHPCL in
three instalments (last in April 2009) to the Nodal Officer
who in tum transferred this amount to the CAMPA fund with
Govt. of lndi~. In 2010, the funds were transferred to the
CAMPA society of Uttarakhand Govt. for execution of
proposed works.
ALAKNANDA HYDRO POWER CO. LTD. v ANUJ
805
JOSHI [K.S.