ANJU JOSHI Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition, we are concerned with a hydro electric power project on river Alaknanda situated at Srinagar. The proposal to undertake the project was mooted by the Uttar Pradesh State Electricity Board. INitially when they approached the Central Electricity Authority under Section 29 of the Electricity Supply Act, 1948, they held out that the capacity of the project will be 200 Megawatts. At the same time, the Ministry of Environment and Forest, Government of INdia, was also approached by the Uttar Pradesh State Electricity Board for obtaining environmental clearance in respect of the said project. The Ministry of Environment and Forest accorded such clearance on 3rd May, 1985. When the Detailed Project Report was prepared by the Uttar Pradesh State Electricity Board for obtaining statutory sanction of the Central Electricity Authority, in terms of the Electricity Supply Act, 1948, it was represented in the Detailed Project Report that the capacity of the project would be 330 Megawatts. On 18th December, 1987, Central Electricity Authority accorded clearance to the Uttar Pradesh State Electricity Board for undertaking the said project having capacity of 330 Megawatts, with a rider that it will comply with all the directions of the Ministry of Environment and Forest contained in its clearance dated 3rd May, 1985. It does not appear that the Uttar Pradesh State Electricity Board informed the Ministry of Environment and Forest that it has obtained clearance from the Central Electricity Authority to commission the said project with a capacity of 330 Megawatts. The Uttar Pradesh State Electricity Board, after obtaining such clearance, however, did not take necessary steps to implement the project. The project was transferred by the Uttar Pradesh State Electricity Board to the predecessor in interest of respondent No. 3. Whereupon, environmental clearance was transferred by the Ministry of Environment and Forest to the predecessor in interest of respondent No. 3 on 27th July, 1999. Subsequently, respondent No. 3 came into the picture in the year 2005 and, thereafter, it started the construction work of the project.

(2.) SINCE then, a number of litigations have been filed by the petitioner. One of them has been dealt with by this Court by a judgment and order dated 19th April, 2011. By that judgment, respondent No. 3 was given liberty to approach the Ministry of Environment and Forest for a specific decision as to the clearance for increased capacity of generation and increased height of dam, with a direction upon the Ministry of Environment and Forest to take decision within three months of making representation by respondent No. 3. The judgment and order further made it clear that construction of the dam up to the height of 63 meters from the riverbed, enabling generation of 200 Megawatts of electricity, will continue; but construction beyond that limit may be proceeded after further clearance from the Ministry of Environment and Forest is received. Accordingly, an approach was made to the Ministry of Environment and Forest by respondent No. 3. The same was disposed of on 3rd August, 2011. In the order / letter dated 3rd August, 2011, the Ministry of Environment and Forest held out as follows:

(3.) IT is the contention of the petitioner that since the Ministry applied its mind subsequent to 27th January, 1994, it was obligatory on the part of the Ministry to apply its mind on the basis of the notification published by the Central Government on 27th January, 1994 in exercise of power granted to it under Rule 5 of the Environment (Protection) Rules, 1986. IT is the contention of the petitioner that while applying its mind, as has been held out in the order dated 3rd August, 2011, the Ministry did not take into account any of the parameters set forth in the said notification. The fact remains that until before 27th January, 1994, there was no statutory requirement of obtaining environmental clearance for the purpose of setting up a hydro electric project. The 1985 clearance, obtained by the Uttar Pradesh State Electricity Board, was not a statutory clearance. With effect from 27th January, 1994, it became obligatory to obtain environmental clearance for constructing any hydro electric project. Therefore, the one and the only question is whether the expansion of the project was made before or after 27th January, 1994. From the records made available to the Court, which were not available before the Court in the previous round of litigation, it is clear that then only statutory authority, namely, the Central Electricity Authority, granted sanction to construct the project with the capacity of 330 Megawatts on 18th December, 1987. In the circumstances, the project in question cannot be said to be requiring a statutory mandate of obtaining clearance on the norms set down in the notification dated 27th January, 1994.