Kaleswaram Irrigation Project Granted EC Ex Post Facto Violation of Law, Directs Constitution of Committee Assess Damage & Identify Restoration Measures: NGT

The National Green Tribunal (NGT) has held that the environmental clearance (EC) granted to the Kaleshwaram Lift Irrigation Project (KLIP) was ex post facto "in violation of law", after substantial work was carried out by the Ministry of Environment, Forest & Climate Change (MoEF&CC).

A bench of Justices Adarsh Kumar Goel (Chairperson) & SP Wangdi (Judicial Member) & Dr. Nagin Nanda (Expert Member at the Principal Bench in New Delhi has held that that remedial measures are required to be taken. In this context, it has directed the MoEF&CC to constitute a seven-member expert committee preferably out of expert appraisal committee (EAC) members with relevant sectorial expertise.

"We direct the MoEF&CC to constitute a seven-member Expert Committee preferably out of EAC members with relevant sectorial expertise to go into the matter. It has also been directed to assess the extent of damage caused in going ahead with the project without EC (from 2008 to 2017) and identify the restoration measures necessary. Relief and Rehabilitation measures adopted and required to be further adopted may also be looked into."

- NGT

"It is particularly required when the projects are multi-purpose and part of it requires EC, so that such requirement is not defeated on specious plea that the project was partly not covered by the schedule Environmental Impact Assessment (EIA) Notification as has happened in the present case," the NGT has also observed. 

It has further asked MoEF&CC to consider measures to prevent recurrence of such violations where EC is sought ex post facto.

While holding that it is particularly required when the projects are multi-purpose and part of it requires EC, so that such requirement is not defeated on specious plea that the project was partly not covered by the schedule Environmental Impact Assessment (EIA) Notification as has happened in the present case, the NGT has suggested that instead of confining consideration merely to documentary support, a mechanism is required to be evolved and followed whereby physical verification of material particulars can be undertaken, wherever necessary.

Facts of the Case:

The appellant, Mohammad Hayath Udin, a farmer and resident of a village in District Siddipet, came before the National Green Tribunal challenging the order of the Ministry of Environment, Forest & Climate Change (MoEF&CC), passed on December 12, 2017, granting Environmental Clearance for the Kaleshwaram Lift Irrigation Scheme (KLIS) at Karimnagar District, Telangana.

His case was that the project approved by the Ministry directly affected him. which envisages construction of three barrages between Yellampally & Medigadda on Godavari near Kaleswaram and two of the rivers' Downstream's.

Stating that the project was not evaluated while granting EC, the appellant has stated that there is discrepancy with regard to quantity of the forest land in the project.

The appellant has also averred that there was deliberate mis-representation of facts regarding proximity of the protected areas, such as National park, sanctuary, biosphere reserve etc. with the EIA report wrongly stating that there is no national park for wildlife sanctuary within 10 km buffer. Further, the appellant averred that the EC condition of impact being studied after five years of commissioning is against the Precautionary principle and that there was no proper appraisal of the project.

The appellant thus moved the NGT with a contention declare the EC granted to KLIP as invalid since substantial work was done by the State Government, project proponent, prior to filing application with the Ministry for clearance.

What the NGT Held:

The basic question taken up by the Tribunal is the the validity of the impugned EC and in case there is infirmity in the EC, further remedial action.

The tribunal directed the MoEF&CC to constitute a seven-member Expert Committee preferably out of EAC members with relevant sectorial expertise to go into the matter. It has also been directed to assess the extent of damage caused in going ahead with the project without EC (from 2008 to 2017) and identify the restoration measures necessary. Relief and Rehabilitation measures adopted and required to be further adopted may also be looked into.

In this regard, the progress may be finally monitored by the Secretary, MoEF&CC & any affected party will be at liberty to make representation to the the MoEF&CC within three weeks putting forward suggestions and grievances, which may be taken into the account by Committee.

"We find that in spite of finding illegality in granting EC, it is neither possible nor desirable to undo what has happened, but accountability needs to be fixed and remedial measures taken," said the bench.

In the matter of expansion of the project scope to draw 3 tmc ft of water a day from the present 2 tmc ft, the NGT observed that directions of the Centre are binding on the State unless challenged and set aside.

"Prima facie, it is difficult to accept the plea that enhancement of capacity by one third will not require any infrastructural changes. In any case, this aspect needs to be evaluated by the statutory expert Committees before the expansion is undertaken," the bench has noted.

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