ATHIRAPPALLY GRAMA PANCHAYAT Vs. UNION OF INDIA

JUDGEMENT

(1.) These writ petitions are in the nature of public interest litigation challenging the environmental clearance given by the 1st respondent-Union of India for the Athirampilly Hydro Electric Project proposed to be set up by the Kerala State Electricity Board. The petitioners are challenging the environmental clearance, Ext.P.10, on the ground that the clearance has been granted without taking into consideration the vital aspects which would affect the ecological imbalance on account of the commissioning of the project as also on the ground of procedural impropriety. The fact situation leading to the litigation, as stated by the petitioners, about which there is no serious dispute, may be summarized as under. (For convenience, we woule refer to the facts and exhibits as given in W.P.(C).No.9542 of 200).

(2.) The Kerala State Electricity Board submitted an application to the Ministry of Environment and Forest of Government of India for environmental sanction for the Athirampilly Hydro Electric Project across the Chalakudy River with a total installed capacity of 163 MW by making use of the tail end water coming out of the Poringalkuthu Hydro Electric Project. The Chalakudy River which folows through parts of Tamilnadu and Kerala is 144 Kms. Long, having its source at the Anamalai hills in the Western Ghats. Six dams have already been constructed at stages along the river from its source of the river. Four of them are being used for diversion of water and two for power generation. Thus, along the 80 Km. Stretch of the Chalakudy River from its source, the water has already been over exploited. The proposal of the KSEB now is to construct one more Hydro Electric Project across the river at Athirampilly. The original proposal in this regard was made in the year 1979 as a twin project. This proposal was later given up. In 1988, a new proposal was conceived. This project was rejected in 1989 by the Ministry of Environment and Forest inter alia for the reasons of loss of teak plantation and forest, loss of natural wealth rich in biological diversity, loss of habitats for wild animals and endangered species, extinction of aquatic life down stream of the reservoir and possibility of water falls becoming dry resulting in loss of scenic beauty, which is a tourist attraction.

(3.) In 1991, the KSEB again came up with a revised proposal proposing to maintain the water falls during day time. Under this project, Vazhachal water falls alone would become non-existent. On account of the stiff opposition, this proposal also was not pursued by the K.S.E.B. In 1994-05, a new proposal was initiated by the KSEB under which both the Athirampally and Vazhachal water falls were to be maintained during day time. To establish that the said project wsas ecologically viable, the KSEB entrusted the task of making a study report to the Tropical Botanical Garden and Research Institute (TBGRI for short), in their efforts to satisfy the requirements of Environmental Protection Act, 1986 and Environmental Impact Assessment Notification, 1994. As per notification No.S.O.60(E) dated 27-1-1994 issued the Ministry of Environment and Forest, environmental clearance had to be obtained for putting up, expending or modernising any of the projects specified in Schedule I of the notification. River valley project including Hydel power, major irrigation and their contribution including flood control was Entry 2 in Schedule II. Therefore, Athirampilly Hydro Electric Project of the KSEB came within the purview of the said notification and therefore the proposed project required mandatory environmental clearance in accordance with the said notification. As per the procedure prescribed by the notification, the environmental clearance had to be accompanied among other documents, an Environmental Impact Assessment Report (EIA Report for short). The impact assessment was for the purpose of identifying the future consequences of a current or proposed action so as to facilitate an informed decision making after a dispassionate analysis of the consequences of the proposal project and its impact on the environment as a whole. The TBGRI allegedly conducted a study during monsoon months and on the basis of the data collected during monsoon, prepared a Repid Environment Impact Assessment (Rapid ELA). However, the report prepared by TBGRI was not published and the said Rapid EIA report of the TBGRI was submitted before the Ministry in support of the application for environmental clearance for the project.