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2013 DIGILAW 950 (HP)

Mangni Ram v. UNION OF INDIA

2013-11-13

A.M.KHANWILKAR, KULDIP SINGH

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JUDGEMENT A.M.KHANWILKAR, J.- 1. HEARD counsel for the parties. 2. THESE review petitions have been filed essentially on the assertion that some factual errors have been committed while recording the finding in the decision under review by this Court due to lack of assistance from the petitioners and also because of the suppression of relevant material by the respondents. Reliance has been placed on the documents at pages 186 letter from Chief Engineer, HPSEB, dated 23.3.2009, at page 172- NOC issued by the Additional Director, dated 2.12.2008, at page 137 report of the Director (Civil) dated 30.7.2012 and at page 155 letter dated 18.8.2010 to urge firstly that the Authorities were oblivious and unconcerned about the objections raised by the locals; secondly the factual position stated in the communication of Director (Civil) dated 30.7.2012 unfolds the ground reality which has been completely glossed over by the competent Authority. Thirdly, it is contended that the Appraisal Committee was confronted with fait accompli situation and therefore, the so called approval given by the Appraisal Committee in its meeting dated 20th/ 21st December, 2010 is on the basis of pre-decided situation and not proper analysis of the ground reality which would clearly reveal that the shifting of the Project on the left bank was improper, inappropriate and against the public interest. Incidentally, it was also argued that this Court has committed error apparent on the face of the record in proceeding on the assumption that MoEF had granted approval vide communication dated 2.12.2008, while the same was only no-objection certificate issued by the said Authority. This error is noticed in paragraph 15 of the judgment under review. These are the only arguments canvassed h before us for seeking review of the judgment dated 22.5.2013. We are not impressed by any of these grievances of the petitioners. These are not only ill-advised but completely in ignorance of the discussion contained in paragraphs 15, 16, 17 and 21 of the judgment under review, in particular. All these aspects have been answered on the finding that the CEA is the only competent Authority and it has given permission/approval for shifting of the Project on the left bank. The communication at page 137, issued under the signature of Director (Civil), dated 30.7.2012, is after the permission was already granted by the competent Authority. All these aspects have been answered on the finding that the CEA is the only competent Authority and it has given permission/approval for shifting of the Project on the left bank. The communication at page 137, issued under the signature of Director (Civil), dated 30.7.2012, is after the permission was already granted by the competent Authority. There is presumption in law that all the documents which were placed before the Authority were duly considered by the Authority before grant of permission unless proved to the contrary. No document has been brought to our notice which would suggest that the factual position stated therein was misleading or incorrect and was the basis of decision taken by the competent Authority. Relying on some subsequent documents after the sanction was already accorded by the CEA, will be of no avail. Similarly, in our opinion, the grievance of the petitioners that the matter had become fait accompli when it was considered by the Appraisal Committee is untenable. 3. REGARDING the objections of locals, that aspect has been considered by the Authorities and including by this Court, which records that the grievance of the locals stood redressed and that the Authorities have proceeded on that basis. Neither the communication dated 23rd March, 2009 at page 186 nor the letter dated 18th August, 2010 at page 155 will be of any avail. 4. COUNSEL for the petitioners has also invited our attention to the averments contained in the reply-affidavit of Central Electricity Authority- respondent No. 10, in particular paragraphs 3 to 7 at pages 301 to 302 of the Writ Petition, which read thus: " 3. Government of Himachal Pradesh, vide its letter No. MPP- F(2)-14/2007-II dated 07.03.2011 confirmed shifting of project components from right to left bank of river Ravi. 4. CEA accords concurrence to hydro electric schemes based on the information provided in the Detailed Project Report. In case of Bajoli Holi HE Project, after it was concluded by the project developer and Government of Himachal Pradesh, for locating the project components of left side of the river Ravi, the detailed investigations had been carried for project components on the left side of the river and incorporated in the DPR. Earlier, Special Secretary (Power), Department of MPP and Power, Government of Himachal Pradesh vide letter dated 09.04.2009 {Ref. Earlier, Special Secretary (Power), Department of MPP and Power, Government of Himachal Pradesh vide letter dated 09.04.2009 {Ref. (i)} addressed to M/S. GMR Energy Ltd. (Developer), allowed to shift the project components of Bajoli Holi HE Project from right to left bank of the river Ravi due to greater techno- economic feasibility. M/s. GMR Energy Limited submitted the Detailed Project Report (DPR) for concurrence of CEA proposing water conductor system and power house works of the project on left bank of the river and the DPR of the project was taken up for examination in CEA/CWC/GSI in January, 2010. Joint Secretary (Power), Department of Power, Government of Himachal Pradesh vide letter dated 09.09.2010 [ Ref.(ii)] has intimated that it would not be possible to accede to the request of M/s. GMR Energy Limited to shift the project components to left bank of river Ravi. Further, it was intimated that their earlier letter dated 09.04.2009 [ Ref. (i)] may be considered withdrawn till such time the M/s. GMR Energy Limited the Developer demonstrates that local opposition based on environmental and land consideration have been amicably resolved. In the meanwhile, Chief Engineer (Energy), Directorate of Energy, Government of Himachal Pradesh, vide letter dated 13.10.2010 [Ref. (iii)] have intimated that the company M/S GMR Energy Ltd. has already been allowed to shift the project components of Bajoli Holi (180 MW) from right to left bank due to greater techno-economic feasibility vide this department letter No. MPP- F(2)-14/2007 dated 09.04.2009 [ Ref. (i)] with FRL-2018.25 M and TWL 1706.75 M. The Company has obtained all the requisite No Objection Certificates (NOCs) from all concerned Gram Panchayats also. Therefore, the location of project components on left bank is hereby confirmed for further necessary action. 5. CEA, after examining the DPR submitted by the project developer for the left bank and considering views/observations of Central Water Commission and Geological Survey of India and Government of Himachal Pradesh accorded concurrence to Bajoli Holi HE Project vide its letter No. 2/HP/34/CEA/09-PAC/690-720 dated 30th December, 2011. 6. It is, however, given in the DPR that right bank alternative was also studied by HPSEB in 2007 and the same was not favoured by them due to various reasons such as rugged topography, difficult accessibility etc. 7. 6. It is, however, given in the DPR that right bank alternative was also studied by HPSEB in 2007 and the same was not favoured by them due to various reasons such as rugged topography, difficult accessibility etc. 7. As such, shifting of project components from right bank to left bank is sole responsibility/ choice of Government of Himachal Pradesh/project developer and concurrence has been accorded only on the basis of detailed submission made for left bank." We fail to understand as to how the averments contained in this reply-affidavit are of any avail to the petitioners. The reply-affidavit reiterates the position that CEA is the only Authority to accord concurrence to hydro electric schemes; and in the present case, it had granted necessary approvals. That factual position is not assailed by the petitioners even in the present review petitions. What is argued is that the matter had become fait accompli before the Appraisal Committee which met on 20th/21st December, 2010 in Jaipur to consider the proposal and which position is manifest from the observation that the proposed site is already shifted from right bank to left bank. This is distorted reading of the minutes of the Appraisal Committee meeting, referred to above. What the Committee has then observed is that considering the geological formation and less infrastructure work, the Committee accepts the clarification. Thus, it is not a case of non-application of mind by the competent Authority in according approval. 5. THE petitioners, in our opinion, have made unsuccessful attempt in assailing the approval in respect of the Project under consideration granted by the competent Authority. The criticism of the petitioners about observations made in paragraph 15 of the judgment that the MoEF, Government of India has approved the proposal is also without any merits. What has been observed in paragraph 15 is that the proposal was submitted to the appropriate Authority and which was approved right up to MoEF vide communication dated 2.12.2008, grant of NOC by MoEF vide that communication is not disputed by the petitioners. 6. THE petitioners have attempted to assail the judgment under review on grounds which, in our opinion, are untenable, flimsy and without any substance. The review petitions are, therefore, dismissed. Interim protection granted in these review petitions stand vacated forthwith.