Dhumiya-Ganga Sangharash Samiti v. STATE OF HIMACHAL PRADESH
2013-08-16
A.M.KHANWILKAR, V.K.SHARMA
body2013
DigiLaw.ai
JUDGEMENT A.M.KHANWILKAR, J. - 1. THIS petition is filed as public interest litigation in relation to the setting up of Allian-Duhangan Hydro Power Project, (hereinafter referred as the ADHP Project). The petition challenges the no objection certificate issued by the Pradhan of Panchayat, Annexure P-2, and on which basis the Ministry of Environment and Forests, Government of India, (hereinafter referred to as the MoEF, GoI), issued environmental impact clearance, dated 12.12.2000, in respect of the ADHP Project, and to revoke the same. Further relief is claimed against the State Government to initiate action on the basis of show cause notices, vide Annexures P-9 to P-13, and to lodge criminal cases in relation to the FIR registered with Police Station, Manali, District Kullu, H.P., instead of treating the said cases as compounded by taking fine against the Forest Protection Act, 1980. It is also prayed that private respondent No.7 be ordered to pay compensation and rehabilitate villagers of Bhanara, who have been rendered homeless due to blasting done for construction of tunnel, as also to right holders of Khanool Pasture, for the loss suffered by them due to exploitation of grazing forest rights of the villagers. It is also prayed that the State Government should take follow-up action in a time bound manner on the basis of show cause notice, Annexure P-16. Further relief is claimed against the MoEF, GoI to pin-point the erring officials of that Ministry, who were, otherwise, responsible to ensure compliance of all the conditions specified by the Authorities and the provisions of law. Instead, the said officials failed to carry out inspection and monitoring the implementation of environmental safeguards on the basis of periodical six monthly monitoring report submitted by the project proponent. The petitioners have also sought relief in relation to diversion of water of river Duhangan of Panchayat Jagatsukh to be declared illegal and to direct that the ADHP Project may be executed on the run-of-the-river pattern on Duhangan river. The petitioners have also sought further relief to hold the project proponent liable for creating ecological imbalance by cutting trees, playing with the nature and to cancel the ADHP Project. 2.
The petitioners have also sought further relief to hold the project proponent liable for creating ecological imbalance by cutting trees, playing with the nature and to cancel the ADHP Project. 2. AS regard the substantive relief pertaining to the ADHP Project, it has come on record that the project proponent started construction of the ADHP Project in the year 2005, after obtaining all clearances and commissioned the first phase comprising Allian stream in July, 2010 and the second phase comprising Duhangan stream in February, 2012. Formal inauguration was done on 12th September, 2012. This position is indisputable. It is also indisputable that the work on the ADHP Project was started only after obtaining all clearances and permissions, the validity whereof has been . put in issue in the present petition. Moreover, investment of over Rs.2021 crores has been made by the Special Purpose Vehicle (SPV) named M/s A.D. Hydro Power Limited to implement the ADHP Project. Thus understood, the question of examining the challenge to those clearances at this belated stage on the basis of petition filed in the year 2007 and, more particularly, in the backdrop of facts stated in the petition, which obtained prior to the institution of the petition in 2007, would not only be inappropriate, but also not in the larger public interest. For that reason alone, the petition to the extent of the reliefs with regard to the starting of the ADHP Project, cannot be countenanced and will have to be rejected at the threshold. There is yet another reason why the petition deserves to be rejected at the threshold. The respondents have brought on record two crucial aspects. Firstly, that the petition is filed by unregistered Samiti. It is well established position that Association of persons and, in particular, unregistered Society or Association has no locus to institute any proceedings. If we were to assume that the petition is filed by Yog Raj Rana, son of Shri Surat Ram Rana, himself, as a public interest litigation; the respondents have brought on record that the son of Yog Raj Rana was given contract by the project proponent and, as he failed to perform and execute that contract, the agreement with him was terminated by the Project proponent.
In other words, the said petitioner Yog Raj Rana has been set up and is espousing the cause of his disgruntled son, whose contract has been cancelled by the project proponent. Thus understood, the petition cannot be entertained, as filed, in public interest, being motivated and malafide petition. The respondents have also brought on record that the other so called members of the unregistered Samiti were also awarded contracts by the project proponent, which were required to be cancelled due to non-performance by those persons. That had . happened before filing of the writ petition. Thus, in other words, this petition has been filed out of vengeance and spite, and not in public interest at all. Even for this reason, the petition deserves to be dismissed at the threshold. 3. HAVING said this, we would still examine the weight of the grievance made in the present petition on the assumption that those issues ought to be redressed in public interest. 4. THE first grievance is that the ADHP Project has been allowed to proceed on the basis of no objection certificate from the Village Panchayat, Annexure P-2, at page 57, dated 23.9.1997, when the Project was to be on run-of-river. No public hearing or the general house meeting was organized before issuance of that no objection certificate; and that the Pradhan of the Village had no authority to give such certificate on his own. Assuming that this grievance is justified, as aforesaid, the ADHP Project took off with starting of construction in 2005 and substantial construction work has been completed and the Project has now been commissioned with investment of over Rs.2000 crores. It is too late in the day to reverse that process and, by no stretch of imagination, can be said to be in larger public interest. Further, if the petitioners were aggrieved due to stated no objection given to the Project, they ought to have immediately exhausted the statutory remedy provided in the Himachal Pradesh Panchayati Raj Act. Thus, the petitioners cannot be permitted to raise that issue in the present petition filed in 2007 and also because the said challenge is barred by laches. Moreover, the challenge to the said no objection was set up in Writ Petition No.620 of 2005, but was given up.
Thus, the petitioners cannot be permitted to raise that issue in the present petition filed in 2007 and also because the said challenge is barred by laches. Moreover, the challenge to the said no objection was set up in Writ Petition No.620 of 2005, but was given up. The side issue raised by the petitioners of directing the project proponent, in the alternative, to pay damages because of not obtaining no objection certificate after the revision of the Project, as was mandatory, that will be addressed a little later. The second grievance of the petitioners is that according to the agreement, the proposed acquisition of land ad-measuring 32.167 Ha. was sanctioned, but the project proponent-respondent No.8 illegally carried out work on 5.512 Ha., without sanction, till 18th October, 2002 and asked for further sanction on 17th January, 2005 for the said additional land, which, however, was sanctioned subsequently. Respondent No.8 applied for diversion of further land for the project, ad-measuring 9.55 Ha. on 5.1.2008, when the construction upto 13000 RD was completed by disobeying the orders of Deputy Commissioner, Kullu. According to the petitioners, the Authorities were not clear about the actual land that would be required for the Project, which exercise ought to have been done at the inception and not progressively, as the construction work proceeds further. Moreover, if the Authorities wanted to acquire additional land for the Project, fresh environmental clearance certificate ought to have been obtained and in absence thereof, it was the duty of the Authorities to stop the further construction activity. 5. ACCORDING to the respondents, however, initially, the Project had applied for 58.162 Ha. of forest lands for the construction of the Project; but the MoEF, GoI reduced the land and accorded approval for diversion of 32.167 Ha. of forest land, vide letter, dated 18th October, 2002. Thereafter, an area of 5.512 Ha. was added for underground works as per the revised guidelines of MoEF, GoI and prior to that, forest land for underground components was not considered while diverting the land and the forest land was revised upto 37.679 Ha. It is pointed out that an Expert Committee visited the Project site in November, 2003 and as per the recommendations, the Project road on Allian side was realigned, in order to save 48 numbers of Mohru-Oak trees . and this led to reduction in forest land of 0.50 Ha.
It is pointed out that an Expert Committee visited the Project site in November, 2003 and as per the recommendations, the Project road on Allian side was realigned, in order to save 48 numbers of Mohru-Oak trees . and this led to reduction in forest land of 0.50 Ha. and the forest land was further revised to 37.269 Ha. The MoEF, GoI accorded final clearance for 37.629 Ha. vide letter dated 17th January, 2005. The respondents have, thus, refuted the allegations of the petitioners that the project proponent undertook construction on 5.512 Ha. of land illegally. The respondents assert that the project proponent had applied for additional 9.55 Ha. forest land on November, 2006 and not on 5.1.2008, as mentioned by the petitioners, in principle clearance thereof was received on 15th January, 2008 and final clearance on 8th April, 2008. Further, there was no change of scope of the ADHP Project and the project proponent, being fully aware about the requirement and utilization of the forest land for the construction of the ADHP Project, had applied for the diversion of land as per the set procedures and those permissions were duly obtained. In other words, no fresh environmental clearance was necessary. 6. UNDERSTOOD thus, there is no substance in the grievance of the petitioners about any illegality committed by the respondents, in particular, the project proponent or for that matter, any irregularity as such. The respondents have relied on the observation of this Court in CWP No.216 of 2005, decided on 31st March, 2005, wherein it is held that NOC of the Panchayat is not required when sovereign (State) executes the agreement. The decision in the case of Him Privesh Environment Protection Society, decided on 4th May, 2012, (CWP No.586 of 2010), will be of no avail to the petitioners in the fact situation of the present case. What has been glossed over by the petitioners is that the revision of the projection was necessitated because of the opinion expressed by the Expert Committee in that behalf and it was not a voluntary decision of the project proponent to divert the land user on its own. That was done after following requisite procedure and approvals . given by the Appropriate Authority.
That was done after following requisite procedure and approvals . given by the Appropriate Authority. We also find force in the submission of the respondents that the information on total command area of Duhangan river is reflected as "NA" in the diversion proposal, as the format being common to irrigation and hydel projects and the applicable information to run-of-river project was supplied in that format. The format was supplemented with a copy of environmental impact assessment wherein specific chapter on "social-economic impacts assessment" dealt with the impacts of project development on the local communities. Further, the concern of the petitioners and the villagers, of land falling in Jagatsukh Panchayat regarding water requirement stood duly redressed in terms of the decision of this Court in CWP No.3680 of 2010, decided on 4th October, 2012. Taking any view of the matter, therefore, the ground under consideration is devoid of merits. 7. THE next point urged by the counsel for the petitioners is about the illegality committed by the project proponent regarding the mandate of environment laws. It is submitted that as per the agreement (Annexure P-1), environmental clearance was required to be obtained from the MoEF, GoI as well as from the Himachal Pradesh Pollution Control Board. The MoEF accorded environmental clearance certificate on 12.12.2000, when the original project on the run-of-river was to be constructed. No fresh environmental clearance was obtained after the revision of that project and the environmental clearance obtained on the basis of the original project will be of no avail. For that reason, revision of project and execution thereof, without obtaining environmental clearance, was illegal. This argument deserves to be stated to be rejected for the reasons already recorded. Further, it is noticed from the stand taken by the official respondents that the project has been constructed as per the approval granted by the concerned Regulatory . Authorities, including after obtaining environmental clearances in conformity with the original plan. The environmental clearance records that the project will be constructed by utilizing the combined discharge of both Allian- Duhangan streams. Notably, as there was no change in the project design, further clearance was not required. It is noticed from the communication, 28th dated May, 2004, bearing No.EPPB/Allian Duhangan HEP-Prini- Manali/2002-3211-18, issued by the State Pollution Control Board, that the consent was granted for the proposed revised project. 8.
Notably, as there was no change in the project design, further clearance was not required. It is noticed from the communication, 28th dated May, 2004, bearing No.EPPB/Allian Duhangan HEP-Prini- Manali/2002-3211-18, issued by the State Pollution Control Board, that the consent was granted for the proposed revised project. 8. TO get over this position, the petitioners would contend that requisite monitoring was not done by the Regulatory Authorities. As per the agreement Clause 4.15, read with Clauses 5.9 to 5.12, the Regulatory Authorities were obliged to prepare six monthly reports. No such reports were generated. That presupposes that the Regulatory Authorities made no attempt to inspect the site to ascertain the ground reality. That happened only after the direction issued by the Court. If the Regulatory Authorities were to take appropriate measures and supervise the construction work, the illegalities committed by the project proponent were avoidable. The respondents, on the other hand, have not only refuted this claim of the petitioners but asserted that six monthly compliance reports were submitted to MoEF, GoI since 2005 on regular basis and regular inspection and monitoring was undertaken by the MoEF officials from time to time. This stand is taken by the official respondents on the basis of the official record maintained in the ordinary course of business. There is no reason to doubt the correctness of that stand. The fact that this Court directed inspection of the site does not necessarily mean that the inspection and monitoring done by the Regulatory Authorities before passing of the order by this Court was, in fact, not undertaken. There can be no such presumption. The direction of the High Court additionally . required the concerned Authorities to inspect and monitor the project. According to the State, the Directorate of Energy (DoE for short) is the nodal agency for ensuring project safety, quality and other important aspects in the hydro power development. The responsibilities for ensuring quality control and adherence to safety measures, periodic checks at project site during construction are entrusted to the DoE. The said Authority is required to perform through its empanelled consultants, appointed from time to time, its obligation in this behalf. The Government re-notified the Interdisciplinary Committee to advise the State Government on the issue relating to hydro power projects.
The said Authority is required to perform through its empanelled consultants, appointed from time to time, its obligation in this behalf. The Government re-notified the Interdisciplinary Committee to advise the State Government on the issue relating to hydro power projects. That Committee consists of members from Central Water Commission, Geological Survey of India, Salim Ali Centre for Ornithology & Natural History and Himalayan Forest Research Institute. In addition to the DoE, all other Departments/Agencies including Forests, Environment, Science & Technology, Fisheries, Irrigation and Public Health, and Pollution Control Board discharge their statutory and regulatory functions and monitor the projects. As and when specific complaint is received from the locals, the same is duly inquired into at the appropriate level and corrective action is taken. In the present case, all these precautions were taken to ensure adherence to the environmental concerns. Suffice it to observe that the grievance of the petitioners under consideration is devoid of merits. That takes us to the next ground urged by the petitioners before us. According to the petitioners, the project proponent indulged in illegal cutting of trees, muck dumping, stone extractions and camping base on the un-diverted forest. According to the petitioners, as per clause 5.24 of the agreement, Annexure P-1, the sanctioned trees had to be cut by the Forest Department and after selling, the sale proceeds were to be deposited with the project authorities. However, it was noticed that respondent No.8, on its own, . undertook cutting and felling of trees and used the same without obtaining any permission. This being a serious illegality, the Authorities ought to have taken stern action against respondent No.8 for such violation. 9. ACCORDING to the respondents, the petitioners were raking up settled issues. During the construction work was in progress, some trees were cut, but the same was unintended and unavoidable. That was due to the fact that the trees were falling below the steep cliff. Originally, around 301 number of trees were anticipated to be removed for undertaking the work in the revised proposal submitted with State Forest Department for diversion of 9.55 Ha additional forest land in November, 2006 and in principle approval to that proposal was received in January, 2008 and final approval in April, 2008. In any case, that issue stands finally settled after action was taken by the Regulatory Authorities, which resulted in compounding of offence.
In any case, that issue stands finally settled after action was taken by the Regulatory Authorities, which resulted in compounding of offence. According to respondent No.8, the damage caused during the execution of the project was unintentional and unavoidable. Further, the project proponent deposited the cost of trees, which were required to be felled, with the State Government and the felling of the trees was carried out by the H.P. State Forest Development Corporation. Respondent No.8 has submitted that FIR was lodged by the Range Officer, Nagger in April, 2007 for offences under Section 32 and 33 of the Indian Forest Act, 1927, for causing damage to 116 trees and 113 trees, out of these trees, were among the 301 trees, which were anticipated in advance as likely to be damaged and other 3 trees were also enumerated in the revised proposal for additional 9.55 Ha forest land. 10. THESE facts are mentioned by the Divisional Forest Officer, Kullu, in his communication, dated 13th March, 2007. As a result, the project proponent deposited the damage amount with the Forest Department, as noted in the communication of the Range Forest Office, dated 15th October, 2008 and 29th October, 2008, in lieu of compounding of the offences by the competent Authority under Section 68 of the Indian Forest Act, 1927. In view thereof, cancellation of FIR was recommended and the FIR was finally cancelled by JMIC, Manali, vide order, dated 24th February, 2010. Respondent No.8 has also asserted that although it has obtained approval for felling of 1746 trees for construction of the project, but on both Allian and Duhangan sides of the Project, 1410 trees were actually felled. In other words, respondent No.8 contributed to saving and preserving of 336 trees in the process. As regards the dumping of mcuk, the Regulatory Authorities have unequivocally stated that after the completion of construction and commissioning of the project during inspection, no illegal muck dumping was observed. The Regulatory Authorities have also reported after visiting the spot that muck dumping sites in Allian as well as in Duhangan stream area have been protected by crates and some of these sites were restored by way of plantation. Indeed, it is noted that restoration work on these dumping sites was still in progress.
The Regulatory Authorities have also reported after visiting the spot that muck dumping sites in Allian as well as in Duhangan stream area have been protected by crates and some of these sites were restored by way of plantation. Indeed, it is noted that restoration work on these dumping sites was still in progress. That presupposes that the project proponent has not shirked its responsibility from restoration of the sites, which were damaged due to dumping and have taken all measures to comply with the directions issued by the Regulatory Authorities. There is not even a remote suggestion from the Regulatory Authority that the project proponent has failed to discharge this obligation or for that matter to fulfill the directions given for restoration of the sites damaged due to construction activity. If the petitioners or any other locals have any specific issue in this behalf, they are free to approach he concerned Authority. We have no manner of doubt that the Regulatory Authority would move into action on receipt of such specific complaint and after due inquiry, issue appropriate directions to the project . proponent, which shall be carried out by the project proponent in right earnest. 11. AS regards the grievance of illegal stone extraction/crushing, the official respondents have refuted that contention by pointing out that the Executive Engineer of the Pollution Control Board has reported, after spot inspection, that no stone crusher was operating in the project during inspection on 24th April, 2013. For the time being, we do not wish to dilate on this grievance of the petitioners. We, however, place on record the stand taken by the official respondents that the Industries Department has reported that applications were received for establishment of stone crushers through sub contractors and only one stone crusher was set up and operated in the name and style of M/s JRDS Construction Private Limited for a short period. If stone crusher is operating even after completion of construction work and if such specific complaint is brought to the attention of the Regulatory Authority, it must be inquired into and taken to its logical end. 12. THE argument of the petitioners, however, is that, although the Company had cut more than 839 trees illegally, managed to get away by paying meager amount of Rs.2.00 lacs per tree, which was not commensurate with the damage caused by it.
12. THE argument of the petitioners, however, is that, although the Company had cut more than 839 trees illegally, managed to get away by paying meager amount of Rs.2.00 lacs per tree, which was not commensurate with the damage caused by it. The petitioners are relying on the decision of the Apex Court in T.N. Godavarman Thirumulkpad versus Union of India and others (1997) 2 SCC 267 , to contend that there is complete ban on cutting of trees and for that reason the consequence suffered by the project proponent of paying such meager amount was unacceptable. The fact remains that the Regulatory Authority had registered offence in relation to illegal cutting of the trees in question. The compounding of offence has been done and which has received seal of approval of the Court of JMIC, Manali. That decision has attained . finality. The amount paid by the project proponent for compounding of the offence was as per the norms specified in that behalf. Nothing has been brought on record to show that the amount was not in conformity with any settled norms. Notably, the project proponent, besides paying the amount in lieu of compounding of the offences, has also undertaken restoration work, as is noted by the official respondents. Suffice it to observe that even this challenge is devoid of merits. It was next contended that the agreement executed with the project proponent proposes acquisition of land measuring 32.167 Ha. That was sanctioned by the Appropriate Authority. However, respondent No.8 illegally identified additional 5.2 Ha. of land and applied for inclusion of that land to be diverted to the project area. Respondent No.8 then applied for another 9.55 Ha. of land after using that land for construction of road to the weir site. In other words, the project proponents were themselves not clear about which land was to be utilized for construction of the project. The side argument of the petitioners is that on account of the subsequent change, which was quite substantial, fresh environmental clearance certificate ought to have been obtained by respondent No.8. The latter grievance has already been considered and rejected in the earlier part of this judgment. 13. AS regards the necessity to acquire the stated land, the respondents have asserted that initially the project had applied for 58.162 hectares of forest land for the construction of the project.
The latter grievance has already been considered and rejected in the earlier part of this judgment. 13. AS regards the necessity to acquire the stated land, the respondents have asserted that initially the project had applied for 58.162 hectares of forest land for the construction of the project. However, the MoEF, GoI reduced the same and accorded approval for diversion of 32.167 Ha. forest land, vide letter dated 18th October, 2002. Addition of 5.512 Ha. area of land was done for undertaking underground works as per the revised guidelines of MoEF, GoI, which remained to be considered while diverting the land. Thus, the forest land was revised to 37.679 Ha. Thereafter, in . November, 2003, an Expert Committee visited the project site and recommended that the project road on Allian side be realigned in order to save 48 number of Mohru-Oak trees. In other words, because of the recommendation of the Expert Committee, this diversion was necessitated, which led to reduction in forest land by 0.50 hectares. Thus, the forest land was revised to 37.629 Ha., to which final clearance was accorded by the MoEF, GoI, vide letter dated 17th January, 2005. This factual position is indisputable and has been supported by the official respondents. It would necessarily follow that the grievance of the petitioners that respondent No.8 illegally added 5.512 hectares of land is devoid of merits. No doubt, respondent No.8, in November, 2006, applied for 9.55 hectares of forest land, but it is noticed from the record that in principle clearance was given for that purpose by the Appropriate Authority on 15th January, 2008, followed by final clearance on 8th April, 2008. It is not a case as if no clearance or approval was obtained by respondent No.8 for user of forest land, as is sought to be contended by the petitioners. As there was no change of scope of the project, the question of obtaining fresh environmental clearance did not arise. The petitioners have failed to point out provision of law to substantiate that even in the fact situation of the present case, fresh environmental clearance would be essential, rather mandatory. Hence, even this argument of the petitioners deserves to be stated to be rejected. 14. IT is next contended by the petitioners that the project proponent has committed another serious illegality.
Hence, even this argument of the petitioners deserves to be stated to be rejected. 14. IT is next contended by the petitioners that the project proponent has committed another serious illegality. According to the petitioners, as per agreement clauses 4.3 to 4.5, vide Annexure P-1, the private respondents had to apply for the lease of land for construction of the project. The lease of land could be for permanent work or lease of land for temporary work. The Government was free to provide land on such terms and . conditions as per the extant Regulations. The information received from the office of the Deputy Commissioner, Kullu, reveals that no lease deed was ever applied and sanctioned in the whole of Himachal Pradesh by any power project. Further, the Deputy Commissioner, Kullu, has called upon the Revenue Officers to get the lease deed executed. In other words, the project has been constructed without any lease deed of the land illegally for which reason the Government should take over the project. The respondent No.8, however, contends that - it having obtained permission for diversion of land in accordance with law, there was no necessity to apply for grant of lease. Further, the issue was subjudice with the State Government/Deputy Commissioner, Kullu. As the question regarding necessity of execution of the lease with reference to forest land duly diverted in favour of the project, is an issue, which concerns all the hydro power projects in the State; and since this was a new ground taken by the petitioners, it would be appropriate to leave the question open to be decided by the concerned Authorities in the first place. We are not expressing any opinion either way in that behalf. We hope that the Appropriate Authority of the State Government will consider that issue expeditiously as it not only concerns the project in question, but also other hydro projects, who may have utilized forest land in similar manner. 15. IT was then contended that the project proponent illegally continued with the construction beyond RD-6000 to RD-13000. The private respondents have not only refuted this stand of the petitioners, but have vehemently asserted that the issue was the subject matter in CWP No.1421 of 2007 (present writ petition) and COPC No.82 of 2007, which has been dismissed and that judgment has attained finality.
The private respondents have not only refuted this stand of the petitioners, but have vehemently asserted that the issue was the subject matter in CWP No.1421 of 2007 (present writ petition) and COPC No.82 of 2007, which has been dismissed and that judgment has attained finality. It is, therefore, not appropriate for the petitioners to reopen the same issue in successive . proceedings. The petitioners, however, submit that this Court vide order, dated 26th September, 2007, appointed a High Power Committee to inspect the site, under the Chairmanship of Deputy Commissioner, Kullu. It was also ordered that further instruction regarding construction, restoration and resumption of work be ordered by the Deputy Commissioner, Kullu. The Deputy Commissioner, Kullu submitted his report on 1st October, 2007. He directed respondent No.8 to undertake restoration work within the specified time. It is, however, not the petitioners' case that the direction so issued has not been complied with. In any case, the issue regarding illegal construction has already been considered and suitable directions have been issued in that behalf. We do not intend to reopen the same issue. If the petitioners or any other similarly placed person is of the opinion that the direction given by the Court or for that matter, by the Appropriate Authority has not been complied with by the private respondents, it is open to them to resort to appropriate proceedings in that behalf. That can be considered suitably. 16. THAT takes us to the next ground urged before us about the illegal and malafide appointment of 20/29 employees of Allian-Duhangan Power Project Works in the Deputy Commissioner, Sub-Divisional Magistrate and Revenue Authorities office, and use of two cars and other vehicles. As regards this grievance, although the respondents have refuted the same by contending that in order to overcome the shortage of staff at Government offices and to assist the Government officials in LADA related works, the then Deputy Commissioner, Kullu advised transfer of 7 employees of the Company to the Deputy Commissioner office in June, 2006. However, due to some reason, the said employees could not attend the Deputy Commissioner office on regular basis and preferred to stay back at Company office at Prini, for which reason, the Deputy Commissioner, Kullu, on his own volition, engaged work-charged staff for LADA related works.
However, due to some reason, the said employees could not attend the Deputy Commissioner office on regular basis and preferred to stay back at Company office at Prini, for which reason, the Deputy Commissioner, Kullu, on his own volition, engaged work-charged staff for LADA related works. The Company had merely provided the amount incurred on the wages of the said employees with the office of the Deputy Commissioner, Kullu and the expenditure was booked under LADA Head upon advice received. Moreover, the employees working in the office of the Deputy Commissioner, Kullu were discontinued in July, 2012 and final dues were cleared by the Company. As regards providing of two vehicles to the District Administration, they were provided on temporary and as and when required basis, for field visits. The petitioners, however, invited our attention to two applications filed for clarification on the basis of news item that 20 employees were working in the office of Deputy Commissioner and other offices and that in reply thereto, the Deputy Commissioner, Kullu, admitted the said fact. 17. AS regards this grievance, instead of undertaking investigation into the factual matrix, we would leave it to the Secretary of Forest Department, Government of Himachal Pradesh, to inquire into the same and take it to its logical end. In the event it is noticed that any illegality or irregularity has been committed, we have no manner of doubt that the Authority would initiate appropriate action against the concerned persons for the misuse of position and office, and including recovery of the amount in question. Even with regard to the grievance about misuse of Local Area Development Funds, the Appropriate Authority must inquire into those allegations and take it to its logical end, in accordance with law, expeditiously. These inquiries must be undertaken in right earnest and completed within three months and if it is noticed that some illegality has been committed, corrective and remedial action be taken in the matter and including against the erring officials. 18. THE last contention of the petitioners which remains to be . examined is about drying up of Duhangan river upto 5 kms. from weir site at RD 13000 till Kalu Nullah due to throwing of boulders. This allegation has been refuted by the respondents, including official respondents.
18. THE last contention of the petitioners which remains to be . examined is about drying up of Duhangan river upto 5 kms. from weir site at RD 13000 till Kalu Nullah due to throwing of boulders. This allegation has been refuted by the respondents, including official respondents. The official respondents have asserted that during the spot inspection undertaken, as recently as in April, 2013 by the Executive Engineer of the Pollution Control Board, nothing of this kind was noticed at the tributary of Dohangan Nullah. On the contrary, it was found that the same was flowing. The Committee which inspected the spot has reported that the tributary of Dohangan Nullah, both of upstream intake and down stream, were seen in flowing condition and were not dried up. The Committee has also reported that no other water source was found to have dried up due to construction of the ADHP Project. We have no reason to discard the stand taken by the official respondents merely on the basis of some photographs produced by the petitioners, which may indicate to the contrary. The private respondents have asserted that the project is based on run-of-river water scheme. It uses water from Allian stream and some water has been diverted from Duhangan stream with due approval of all concerned. This crucial fact has been overlooked. Further, the petitioners have concealed the fact of filing of CWP No.620 of 2005 by the same petitioner-Dhumiya-Ganga Sangharash Samiti pertaining to water requirement, besides raising the issue of validity of NOC given to respondent No.8 by the Pradhan of Gram Panchayat. In the subsequent Writ Petition, being CWP No.1010 of 2005, filed by respondent No.8, a Committee was constituted to look into the water requirement of the Duhangan villagers. That Committee submitted its report on total water requirement of present and future (next 40 years) of villagers (sans irrigation requirement). That report was accepted by the private respondent. A second Committee constituted by the Court submitted its report on water requirement for irrigation. Even that . report was accepted by the private respondent. However, the petitioners were not satisfied with the same and had filed objections. The High Court rejected the plea taken by the petitioners vide order dated 22nd May, 2008 holding that the issue involved technical matters.
Even that . report was accepted by the private respondent. However, the petitioners were not satisfied with the same and had filed objections. The High Court rejected the plea taken by the petitioners vide order dated 22nd May, 2008 holding that the issue involved technical matters. Not satisfied, the petitioner filed yet another petition on water issue bearing CWP No.3680 of 2010, which was disposed of on 4th October, 2012, rejecting the petitioner's contention. These crucial facts have been suppressed by the petitioners, even though, CWP No.620 of 2005 was filed prior to the filing of the present writ petition. The private respondents have further asserted that even though agreements entered between the State and respondent No.8 did not provide for any clause with reference to leaving water in the stream, yet they agreed to abide by the notifications, dated 16th July, 2005, to release 10% water, and dated 9th September, 2005, to release 15% water. Moreover, whether the requisite quantity of water has been released in the stream is being continuously monitored by the Appropriate Authority, which fact has been accepted by the official respondents. Thus understood, even the grievance regarding the drying up of Duhangan river due to the project is completely untenable and needs to be rejected. After having considered all aspects of the matter, we decline to grant any relief to the petitioners before us, but dispose of this writ petition with suo motu directions given regarding inquiry to be undertaken by the Appropriate Authorities and to be taken to its logical end expeditiously. 19. WHILE parting, we may add that although the concerned Environmental Law statutes provide for Regulatory Authorities, however, it is common knowledge that the number of officials attached to the concerned Regulatory Authority are insufficient to cope up with the multi dimensional activities and duties cast upon them and muchless to monitor the massive . construction activity on day-to-day basis ( of the hydro power projects ). We are of the opinion that, if the law so permits, while granting environmental clearance to such hydro projects, which, inevitably, entails in impacting the environment and ecology for establishment of the Project and as it is spread over in several hectares of land, to impose condition to appoint professionals to supervise and monitor the construction activity with particular reference to environmental issues, specialized in that field until the completion of the project.
That would lessen the burden of the Regulatory Authorities and the day-to-day supervision of work would be outsourced to the Expert Body recognized by the Environmental Authorities. That Expert Body, in turn, can be made accountable for reporting to the Regulatory Authority periodically, if not on day-to-day basis. This would certainly obviate any damage to be caused to the environment while undertaking construction work, as it will be done under strict supervision of expert persons specialized in that field. This condition would be in the nature of compulsorily appointing an independent expert, who will supervise the construction activity in the environmentally fragile areas and act as an Auditor of performance. It is better to take precautionary measures such as this, instead of perpetrating the damage, which may be irreversible in certain situations. No doubt, this will burden the project proponent with additional cost for the engaging the expert for supervision and monitoring of environmental issues during the construction activity of the Project is on-going. That, however, would be a lesser evil. Nay, it will help in avoiding colossal loss to the environment and resultantly to the society as a whole, due to carrying out construction work of the Project under the able guidance and auditing of performance by an independent agency. 20. WE place on record that although the petition raises diverse issues, in the course of arguments, the petitioners confined to the grounds, which have already been adverted to and dealt with in this judgment. The petitioners not only filed written submissions at the beginning of the arguments, but has confined to the said points in the final rebuttal written arguments filed in the Court. We do not deem it necessary to examine any other matter in this petition. While parting, we may place on record that although hearing of this petition concluded on 14th May, 2013, however, the written submissions were filed by the petitioners, as per the liberty taken from the Court, only on 27th May, 2013. The petition stands disposed of accordingly, so also the pending application(s), if any.