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BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH

NEW DELHI

APPEAL NO. 8 OF 2011

In the matter of :

1. North East Affected Area Development Society (NEADS) Through Girin Chetia, Director

Post & Village Dhekiokowa District-Jorhat Assam -785700

2. Bimal Gogoi

Chandmari, Majar Ali PO-Golaghat Assam …..Appellants

Versus

1. Union of India

Through the Secretary Ministry of Environment & Forests Paryavaran Bhawan CGO Complex, Lodhi Road New Delhi-110003

2. Arunachal Pradesh State Pollution Control Board Through Member Secretary APSPCB Itanagar Arunachal Pradesh-791111

3. M/s Athena Demwe Power Pvt. Ltd. Through the Managing Director 1st Floor, NBCC Tower 15 Bhikaji Cama Place New Delhi- 110066

4. State of Arunachal Pradesh Through the Chief Secretary Civil Secretariat Itanagar, Arunachal Pradesh-791111

5. Mr. P. Abraham .….Respondents

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Counsel for Appellants: Mr. Ritwick Dutta and Mr. Preeta Dhar, Advs (in Appeal No. 8 of 2011). Counsel for Respondents: Mr. Vivek Chib with Mr. Asif Ahmed, Advs., Mr. Joby Varghese, Adv, Ms. Ruchika Goel, Adv., Mr. Kushal Gupta, Adv. for respondent no. 1. Mr. Tarun Johri and Mr. Ankur Gupta, Advs. for respondent no.3 Mr. A.D.N. Rao and Mr. Sudipto Sircar, Advs. for respondent no.4

ORDER/JUDGMENT

PRESENT :

Hon’ble Mr. Justice Dr. P. Jyothimani (Judicial Member) Hon’ble Mr. Justice U.D. Salvi (Judicial Member) Hon’ble Dr. G.K. Pandey (Expert Member) Hon’ble Ranjan Chatterjee (Expert Member)

Dated : 13th January, 2015

1. Whether the judgment is allowed to be published on the net? 2. Whether the judgment is allowed to be published in the NGT Reporter? JUSTICE DR. P. JYOTHIMANI (JUDICIAL MEMBER):

1. On conclusion of the arguments by all the respective counsel

we have pronounced the following brief order in the open court on

this day.

“We have heard the learned Counsel appearing for appellant as well

as respondents in detail. We are satisfied that there are absolutely

no merits on all the grounds, raised by the learned counsel

appearing for appellant. Accordingly Appeal No.. 8 of 2011 stands

dismissed. There is no order as to cost. Reasons for Judgment to

follow”.

Accordingly, we proceed to give our detail reasoning in the form of

Judgment which are as follows-

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2. This appeal is directed against the Environment Clearance

granted by the MoEF dated 12.02.2010 to the Demwe Lower

HEP (1750 MW) project in Lohit District of Arunachal Pradesh

under taken by M/s Athena Demwe Power Pvt. Ltd. The

appellant is an NGO working in upper Assam on livelihood and

development issues. North East Affected Area Development

Society (NEADS) who is the first appellant is working with

disaster affected communities with the right to food and

livelihood as a major thrust area and has also been working

with local communities in Sadiya sub-division of Tinsukia

district of Assam, which is part of both Lohit and Dibang river

basins. The first appellant has also made submissions to the

MoEF during the appraisal stage of the project. The second

appellant is an environmental activists from Assam who has

also made submissions before the MoEF against the project in

respect of which environmental clearance has been granted by

MoEF. It is a Hydro Electric Project (HEP) envisaging

construction of a concrete gravity dam of 163.12 m height

above deepest foundation level (124.8 m above average river bed

level) across river Lohit in Lohit District, Arunachal Pradesh.

The third respondent is the project proponent which is a

company responsible for implementing the project. It is the

case of the appellants that in the downstream stretches the

Lohit river flows through the State of Assam before joining the

Dibang and Siang to form Brahmaputra river in Assam. It is

further stated that the maximum water level and FRL of the

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project are appraised at the elevation of 424.8 m. The

minimum draw down level will be at the elevation of 408 m with

live storage of about 171.20 M.cum. It is stated that the SRC

power house is right back to the Lohit river to accommodate five

vertical Francis Turbines of 342 MW each and one unit of 40

MW to generate a total installed capacity of 1750 MW. The total

land proposed to be acquired for the project is 1589.97 ha

including submergence area of 1131 ha consisting of 174.05 ha

as community Jhum land, 720 ha under Community Forest,

192 ha under Reserved Forest and 502.92 ha as River Bed

(Forest Land). According to the appellants the acquisition of

land will affect 23 villages/hamlets and around 204 project

affected families are likely to lose their land. However, it is

stated that the total land and the people impacted by the

project has been grossly underestimated and in reality the

numbers are much higher.

3. The project was considered by the Expert Appraisal Committee

(EAC) for River Valley and Hydro Electric Projects (HEP) at its

meeting held on 22.10.2009, 16.11.2009 and 16.12.2009 and

ultimately 1750 MW Demwe Lower Project was granted

Environment Clearance on 12.02.2010 by the MoEF namely

respondent no. 1.

4. According to the appellants, the respondents have shown

great disregard to the Environment Impact Assessment Notification,

2006 (EIA Notification 2006) both at the scoping as well as at the

public hearing stages. According to the appellants the EIA Report is

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grossly in-adequate ignoring important data. The appellants case is

that the procedure followed in the scoping stage is totally faulty due

to the reason that Mr. P. Abraham, Director of one of the promoting

companies of the project proponent, was the Chairman of EAC and

therefore, the entire process has to be struck down. The scoping

being a very crucial initial stage of the process by which the EAC

determines the comprehensive Terms of Reference (TOR),

participation of the above said person which has got an element of

bias makes the entire process including EC as unsustainable in

law. It is the further case of the appellants that the project has

many lacunae including that Form 1 particulars were inaccurate

like the permanent and temporary change in land use as the major

impact of the riverine islands and the tracts in the downstream

areas in both Arunachal Pradesh and Assam being ignored, that it

also ignored the Catchment Area Treatment and Compensatory

Afforestation, that there is no mention of impacts due to

decommissioning of the project, that there is no proper answer

regarding the undeveloped and agricultural land, that there is no

detail about the possible accident resulting in explosions, spillages,

fires etc from storage, handling, use or production of hazardous

substances, that the answer has been given in negative in respect of

cumulative effects due to proximity to other existing or plant

projects with similar effects since the hydroelectric project

concerned in the EC is one among the 11 core projects with the

installed capacity of around 8200 MW, that the areas of sensitivity

for ecological reasons like wetlands, watercourses, water bodies,

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coastal zones, mountains, forests etc have not been properly

explained except a reference made relating to Kamlang Wildlife

Sanctuary, that there is no reply regarding the area containing

important high quality or scarce resources including the important

area for religious tourism in Parasuram Kund.

5. The conflict of interest has been raised by the appellants on

the ground that the Chairman of EAC which examined the project

namely Mr. P. Abraham was a Director on the Board of PTC India

Ltd which is one of the 3 promoters of the project in question; As

PTC India Ltd, has invested Rs 30 Crores in Athena Energy

Ventures Private Ltd and committed to invest 150 Crores, the

Committee headed by Mr. P. Abraham played a critical role in the

scoping stage and an interested person himself has been sitting for

clearing the project and therefore the subsequent decision taken by

EAC is doubtful of any credibility. This according to the appellant

is because of the reason like the non consideration of crucial issue

by EAC regarding downstream impacts of the dam which includes

loss of fisheries, change in wetland ecology in the flood plains,

agricultural losses due to massive daily fluctuations in flow,

increased flood vulnerability due to massive boulder extraction from

river beds and sudden water releases from reservoirs. The

downstream impact study relating to Arunachal Pradesh as well as

Assam is relevant which according to the appellants have been

ignored. The only study goes beyond 10 Km as per TOR analysis

which relates to the flooded downstream if the dam breaks. There

is no other relevant study made which includes the habitation

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importance of bird area etc. It is also the case of the appellants

that while granting Environmental Clearance, upper and lower

Demwe were deliberately delinked from the cumulative river basin

study especially when 11 hydroelectric projects are planned in Lohit

river basin, six on the main Lohit river itself at a distance of 86

kms. The EAC has prescribed advanced cumulative study in the

Lohit river basin. The decision of EAC under the Chairmanship of

Mr. P. Abraham that the environmental clearance to Demwe Upper

and Lower HE Project should not be linked with the completion of

basin study is improper. As the decision taken in EAC meeting on

15th and 16th December, 2008 states that the study will be

completed in two years by entrusting the job to WAPCOS, issuance

of Environmental Clearance should have been postponed till such

study is completed. According to the appellants, the stipulation in

the EC that depending upon the ongoing basin studies such further

recommendations shall be binding on the project developer is

meaningless and there may not be any possibility of rectifying the

defects in the EC at a later stage.

6. Apart from the objection relating to the scoping, the appellants

have also objected regarding the public hearing process. According

to the appellants, no notice of public hearing was given to the

affected people both in upstream and downstream areas and the

Gram Panchayats are not informed about the public hearing, the

people living on the downstream left and right of the Bank were not

informed and that the public hearing procedure has not been

properly followed. The comments of the interested persons were not

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called upon by sharing the full reports with the affected persons.

Further it is stated by the appellants that EIA report submitted by

the project proponent and the appraisal have many lacunae

including that the downstream impacts of the dam has not been

considered, that the study going beyond 10 kms downstream

regarding dam break analysis is of no use that after public

consultation, the study made by the project authority on a partial

water flow study for a longer distance of approx. 40 km only for

predicting the impact on fish on the free spawning and spawning

period by ignoring several other material facts like daily flow

fluctuation, winter cold water flood, chapories (Riverine Islands and

Tracts) of Lohit river both in Arunachal Pradesh and neighbouring

Assam, devastating impact on wildlife by the winter flood are all

lethal to the EC granted for the project. The appellants would state

that after commissioning of 1750 MW Demwe Lower Project there

will be a daily drastic fluctuation namely that everyday of 18/19

hours the flow of water will be 35 cumecs which will shoot up

drastically for 5-6 hours in a day to an abnormal extent of 1729

cumecs. This will flood the chapories, affect the habitat of species

like Bengal Florican and Swamp Francolin apart from affecting wild

buffalo, gaur, tiger, hog deer and elephants. The representations

given to MoEF by scientists and civil societies group pointing out

the faulty TOR the improper downstream study including the

wildlife biologist Firoz Ahmed and others have not been considered.

As far as Dibru-Saikhowa National Park is concerned, there will be

major fluctuation of flow in winter. Presently a flow between

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400/500 cumecs is a contribution of Lohit and the contribution

from Dibang joining the Lohit is around 800/1000 cumecs. It

enters national parks in January, during the peaking hours where

the project on the Lohit will release 1729 cumecs and the proposed

3000 MW Debang multipurpose project on the Debang river will

release around 2853.6 cumecs water and that will submerge vast

areas and have drastic impact on the natural ecology of the area

and this aspect has not been considered by the EAC.

7. Even the appellants have raised a point that the project

proponent has not sought for permission under the Wildlife

(Protection) Act which is now not in dispute that the National Board

of Wildlife has granted clearance which is the subject matter of

disputed in another appeal. It is further stated by the appellants

that EIA report has grossly underestimated the impact of the

project on the lands of the indigenous people and environmental

clearance has been granted based on an inaccurate estimate. The

finding of EIA report that 1598 ha are likely to be impacted is

grossly inadequate. Further the report has not taken note of the

plantations in 5767 ha of land in the catchment area. Moreover,

the impact on Parasuram Kund which is an important heritage

cultural site has not been considered by the EIA report. It is stated

that the large number of pilgrims converge to Parasuram Kund

during Makar Sankranti in January. The power house and the

project will pose a serious threat to the religious sentiment and

sanctity and on wildlife apart from the serenity of the sacred site.

The MoEF has not taken note of the same in spite of having been

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brought to its notice. India being a signatory to the Convention on

Biological Diversity should have considered the cultural,

environmental and social impact assessment regarding the

developments made in the traditional place by indigenous and local

communities.

8. It is further stated that the concerns of the citizens which were

raised were referred in a vague manner without expressing

independent opinions on various representations as decided in

various cases of High Courts and Tribunal. Therefore the decision

making process in respect of the Mega Dam suffers from gross

illegality in the absence of proper consultation including non

consideration of a representation made by a responsible Legislative

Assembly Member. The EC granted under the impugned order is in

gross violation of the principle of Precautionary Principle and the

Polluter Pays Principle as enumerated by the Hon’ble Supreme

Court in Vellore Citizens Welfare Forum Case and Arunachal

Pradesh PCB V/s Prof. M.V. Nayadu (Retd.) and Ors. It is based on

the above said averments the appellants have challenged the

validity of EC granted for the project.

9. The first respondent, MoEF, in its reply has stated by raising a

preliminary objection that the appellants having raised all these

points during the public hearing and having participated in the

process including before the EAC and those objections having been

considered by the EAC and consequently MoEF, cannot maintain

the same objections before the Tribunal. This is so, especially when

an elaborate public consultation process was followed, the

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presentation of the project proponent as well as the objections were

considered in their proper perspectives. It is also stated that all the

objections including the downstream effects, effect on Parasuram

Kund, geological and seismicity aspects, rehabilitations have been

duly considered by the EAC which has made field visit through its

subcommittee, and recommended for issuance of the EC and

ultimately the MoEF has issued EC subject to various stringent

conditions.

10. While denying all other averments made by the appellants, it

is stated by the 1st respondent that the EAC has taken on record

the details enclosed with Form 1 during scoping appraisal for TOR

and after having been satisfied has recommended the project for

scoping and issued TOR. It is stated that as per the EIA

Notification 2006, Form 1, pre-feasibility report and proposed TOR

were submitted to the 1st respondent which were referred to EAC

which has considered on 10.07.2007 and the first respondent, on

07.08.2007 has granted scoping approval with TOR. It is stated

that subsequently the project proponent has informed the

EAC/MoEF that during the reconnaissance survey of allotted

stretch of Lohit River, it was found that the original proposal of

3000 MW Demwe HEP Project conceived by the Central Electricity

Authority (CEA) with FRL at 490m was to cause submergence of

Kamlang Wildlife Sanctuary (KWLS), and it was in order to avoid the

same that the project was divided into two stages namely Demwe

Lower HEP (Project) and Demwe Upper HEP within the allotted

stretch given by the State Government of Arunachal Pradesh. A

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revised Form 1 was received by the 1st respondent for scoping on

01.02.2008 and the EAC directed the Model TOR approval for

North-East project to be made applicable to the project to Demwe

Upper HEP and accordingly the 1st respondent has issued a revised

TOR on 25.03.2008, in order to achieve 3000 MW project in two

stages.

11. As per the stipulation of the 1st respondent in the revised

TOR, the subgroup of EAC made a field visit of the project site on

1st and 2nd June 2008 and recommended additional conditions in

TOR and accordingly the 1st respondent has stipulated additional

TOR on 04.08.2008. Further, the project proponent has apprised

the MoEF from time to time of various parameters like Full

Reservoir Level (FRL), Maximum Water Level (MWL), Water

Availability Series, Power Potential Studies and other Technical

materials, and accordingly additional TOR have been issued to the

3rd respondent.

12. It is specifically stated that the EAC consisted of 14 Experts

from various fields and considered each and every aspect of TOR

and even though Mr. P. Abraham was the Chairman of EAC,

decisions were taken by EAC collectively and Mr. P. Abraham has

never attempted to influence the members who are independent.

Regarding the river Basin study it is stated by the MoEF that world

wide it is recognised that River Basin is developed in a cascade

manner to work out the cumulative impact of all the projects in the

River System. The purpose of basin study is only to supplement the

Environment Management Plan efforts and to optimise them for

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ecological conservation and social upliftment of the area by

additional measures. Moreover, there was no cumulative effect in

the lower projects which are in less eco-fragile zone and that too it

being the 1st project. The EAC has noted that on Lohit river Six

HEPs are likely to come and except the said projects, no other

projects were presented before the MoEF for EC. Therefore, the

EAC has decided that basin study is required for understanding the

capacity of the river for generating hydropower after fulfilling the

requirement of water for local habitants and aquatic life. The MoEF

while granting EC has delinked the Demwe Lower and Upper

Project from the completion of basin study as it was done in Teesta,

Sikkim. Further, the delinking was done to evolve a suitable

framework to guide and accelerate the development of hydropower

projects in the North-East. It is also based on IMG in which it was

suggested that in view of uniqueness of the fragile eco-system in

North East Region (NER), due importance need to be given to

environment and forest concerns while planning the hydropower

project. It was also suggested that EIA studies may be taken up

basin wise in place of individual project to know the downstream

impact on development projects in cascading manner and minimum

release required to maintain aquatic life downstream. Therefore,

according to the MoEF, there is nothing wrong in deciding to delink

the Lower and Upper Demwe Projects from the river basin study.

13. While denying that the process of scoping was having any

lacuna, it is stated that the project proponent in Form 1 has given

information related to change in flow regime, which is the normal

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consequence in the operation of any hydropower projects. It is also

the case of the MoEF that, as no requirement for acquisition arose,

the Catchment Area Treatment Measures and Compensatory

Afforestation Scheme is not called for. It is also stated that no

hazardous waste is to be created except explosives for blasting

purpose for which the project proponent has to obtain permission

in accordance with law. It is also stated that the Important Bird

Area (IBA) site referred by the appellants is located beyond 15 Km

from the project site.

14. It is also stated that the impact regarding influx of labour

has been considered and that the project which would span for a

period of 5 years with diverse activities, the labour and technicians

required would be around 8933 and regarding the impact due to

involvement of influx, the same has been addressed by the EIA and

an Influx Management Plan has been prepared as part EMP with

measures like segregation of the work force, health screening of

labourers before and after their employment, sensitization of

outside labourers; culture and local traditions, to provide for

designated labour camp to minimise interference with locals and

environment, sanitation etc. It is stated that in fact the EC has

provided elaborately about this.

15. The representation of Mr. Krong was considered after

verifying from the project proponent. It also stated that after TOR

was issued, the 3rd respondent has made an extensive study and

submitted its EIA report. The proposal for EC was submitted by the

project proponent on 01.10.2009 and EAC in its appraisal meetings

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on 22.10.2009, 16.11.2009 and 16.12.2009 considered it.

Regarding the public hearing it is stated by the MoEF that the State

Pollution Control Board has conducted the same as per the rules

and large number of people have participated. The EAC has

considered the methodology in respect of each of the parameters

and recommended for issuance of EC and ultimately the MoEF,

after having been satisfied with the reasons given by the EAC, has

granted EC on 12.02.2010.

16. Regarding the flows it is the case of the MoEF that diurnal

variation due to project operation is associated with all

hydroelectric projects and such variation is also associated with

Demwe Lower HE Project. It is specifically stated from the approved

hydrological series that flow are in no way significantly higher than

the non-monsoon floods witnessed by the Lohit River System. It is

also stated that the hydro projects are site specific in nature with

varying ecological parameters.

17. While dealing with the braided river course of downstream, it

is stated by the MoEF, that while the project proponent has

sufficiently made study and answered, alternative arrangement for

migrating fishes by trapping and transportation is also widely

recognised and in fact recommended by the World Commission on

Dams Environmental Issues, Dams and Fish Migration, Final

Drafts, June 30 of 2000. Regarding the impact of Demwe Lower

HEP on Dibru-Saikhowa National Park, it is stated that the said

park is situated 100 Km downstream from the dam site. During

monsoon period where reservoir will be operated at MDDL, the river

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flow will be normal as there is no storage. In non-monsoon period

water will be released daily during power generation, and no impact

is envisaged on the park.

18. Regarding the habitations of Gangetic dolphins it is the case

of the MoEF that as per the paper by Dr. Abdul Wakid, the area

mentioned in the report are located far away from the project site.

The nearest Dolphin sighting site, Tengapanimukh is at aerial

distance of 63.71 Km and others like Uriamghat is 103.4 Km and

Balijan is at 124.74 Km. Therefore, the project has no impact on

Dolphins. Likewise, regarding the impact on chapories, the aerial

distance of Urpad beel is about 597 Km and Deeper is about 501

Km from the dam site. The nearest chapori from the dam site is

stated to be about 33 Km along the river Lohit. Therefore, the

impact on the chapories is minimal. Regarding the sediments, the

MoEF states that the project contains adequate safeguard to flush

out the possible sediments. While meeting the averment regarding

the river bed erosion by the project, it is stated by the MoEF that

the project proponent has clarified that due to maintenance of the

reservoir at MDDL of EL 408m, the incoming flood will be

moderated in the available reservoir having a capacity of 171.2 M.

cum between MDDL of 408 m and FRL 424-8. As the velocity will

be lower there is no possibility of bank erosion. Again regarding the

impact of boulder collection from river bed for construction, the

MoEF has stated that the project proponent has made clear that the

excavation are from non-river bed areas and elaborate quarrying

measures have been explained. Therefore, according to the MoEF,

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major effect of downstream impacts have been clarified by the

project proponent and the EAC as well as the MoEF are satisfied

about the process.

19. Regarding the compensatory afforestation, it is stated by the

MoEF, that the project proponent has undertaken to do so in

degraded forest land identified by the Forest Department.

Afforestation shall be raised in the area of 2818 ha and degraded

forest land identified in lieu of 1408.30 ha of forest land to be

diverted for execution by the project. Again, while meeting the

averments regarding the Parasuram Kund proximity, the MoEF has

stated that in fact on deliberation with the Parasuram Kund

Improvement Society (PKIS), release of water during mela period

was agreed to be regulated with various safeguards and the

regulatory measures for preserving Parasuram Kund and protecting

the devotees during “mela period” have been duly incorporated in

the conditions of EC. Again regarding the preservation of

Biodiversity, it is stated by the MoEF that the project proponent is

directed to fulfil the guidelines issued by Akwe:Kon guidelines

under convention on Biodiversity.

20. Therefore, according to the MoEF, the impugned EC has been

granted to the 3rd respondent after meticulous study make by EAC

and independent consideration by the MoEF itself by following the

entire procedure contemplated under the EIA Notification of 2006.

The MoEF has also specifically stated that monitoring of the project

will be done as continuing process based on environmental

management plan and as and when required, additional mitigative

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measures will be stipulated by the MoEF and therefore the Appeal

is liable to be dismissed.

21. The 2nd respondent, the Arunachal Pradesh Pollution

Control Board, in its reply while raising preliminary submissions,

has stated that the 1750 MW Demwe Lower Hydro Power Project

envisage the construction of a concrete gravity dam of 163.12 m

height above deepest foundation level (124.8 m above average river

bed level) across river Lohit in Lohit District, Arunachal Pradesh,

with the total project cost of about Rs.13144.91 crores, scheduled

to complete in 5 years. Even though the appellants have raised two

issues of scoping and public hearing, the Board is concerned with

the conducting of public hearing as per the EIA Notification 2006.

It is stated by the Board that the public hearing was arranged in a

systematic, time bound and transparent manner ensuring widest

public participation at the project site and in its close proximity. It

is the case of the State Pollution Control Board that on receipt of

the application from the project proponent, the time and venue of

public hearing was finalised after consulting the Deputy

Commissioner of Lohit and Anjaw districts. Notices of public

hearing were issued in an English, local Mishmi dialect and in a

Hindi Newspaper giving wide publicity. The EIA report and the

Executive summary was clearly mentioned during the public

hearing and the documents were made available in all offices

accessible to the public. The details of public notices advertised in

various newspapers as stated in the reply of the Board shows that

publications have been made in 6 Newspapers in 3 languages as

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stated above. In addition, the Deputy Commissioner Lohit District,

Tezu and Deputy Commissioner Anjaw District, camp-Tezu has

also issued circulars enclosing copies to all the affected villages.

The Executive summary of the EIA report was uploaded in the

Website of the Board to make it available in public domain.

22. It is stated by the Board, that the public hearing proceedings

were conducted as per EIA Notification 2006 and as many as 509

persons attended public hearing at Parasuram Kund Mela Ground

in Lohit district on 11.08.2009 and 237 persons attended at Paya in

Anjaw District on 12.08.2009. The public hearing has been video-

graphed and sent to MoEF. It is stated that Mr. Kapriso Krong was

present in the public hearing on 11.08.2009 at Parasuram Kund

and also on 12.08.2009 at Paya (Machima Community Hall) and he

was given ample opportunity and he participated in full swing.

Therefore, according to the Pollution Control Board, there is no

fault in conducting the public hearing.

23. The respondent no. 3, the project proponent, in its reply, in

the preliminary objection stated to the effect that all the points

raised in the appeal were raised by the appellants in detail

throughout the proceedings including at the time of public hearing

before EC was granted by the MoEF, and the same have been

elaborately considered by all the authorities and decision arrived at

and at this stage the appellants cannot be permitted to raise the

same once again.

24. While dealing with the merits of the appeal, while it is the

case of the 3rd respondent that when admittedly, the 1st appellant

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is not working in Arunachal Pradesh, filing of the appeal is an

abuse of process of law and filed without loco standi. It is also

stated that the project proponent has strictly followed the

provisions of the EIA Notification 2006, while denying all the other

allegations. While dealing with the averments regarding the

scoping, it is stated that the Demwe HEP (3000 MW) is one of the

Prime Minister’s 50,000 MW initiatives. The PFR was made by

Central Electricity Authority (CEA) with Full Reservoir Level (FRL) at

EL 490 m to generate 3000 MW. As per the EIA Notification 2006,

the 3rd respondent has submitted Form 1, Pre-Feasibility Report of

Demwe HEP (3000 MW) and the proposed Terms of Reference to the

MoEF for consideration by EAC on 10.07.2007 and the MoEF has

granted scoping approval on 07.08.2007 along with TOR. However

after availing of TOR, during reconnaissance survey of the stretch of

Lohit River and additional data collection, it was found that 3000

MW Demwe HE Project as conceived by the Central Electricity

Authority would cause partial submergence within the Kamlang

Wildlife Sanctuary (KWLS). It was to avoid the submergence that

the project was split into two as Demwe Lower and Demwe Upper

HEP and accordingly revised Form 1 was submitted to MoEF on

01.02.2008 for scoping. The scoping approval of TOR was granted

by MoEF again on 25.03.2008 for Demwe Upper HEP. It is stated

that the TOR has been issued as per the prevailing model Terms of

Reference for hydropower projects in North East.

25. It is the case of the project proponent that after TOR, the

EAC, considering the fact that Arunachal Pradesh is hotspot for

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Bio-diversity, has decided to make a field visit and issue further

TOR based on such visit. A sub-group of EAC has in fact visited the

spot on 1st and 2nd June 2008 based on whose recommendations,

the MoEF has issued additional TOR on 04.08.2008. A Detailed

Project Report (DPR) was submitted to the CEA in September 2008

for concurrence as per Section 8 of the Electricity Act 2003. The

CEA has made appraisal and considered various parameters like

Full Reservoir Level (FRL), Maximum Water Level (MWL), Water

Availability Series, Power Potential Studies and other technical

parameters and finalised along with the Central Water Commission

and informed to EAC/MoEF.

26. It is stated that the EAC has approved the installed capacity

of the project to 1750MW, pursuant to which the project is to

release 35 cumecs of minimum flow downstream of the dam

through a separate unit of 40 MW which will run continuously as a

base unit for sustenance of aquatic ecology of the river stretch

downstream immediately below the dam. Further it is stated that a

comprehensive Environment Impact Assessment/Environment

Management Plan study was undertaken by the Centre for

Interdisciplinary studies on Mountain and Hill Environment, Delhi

University (CISMHE) based on base line data collection, prediction

of impacts and formulation of Environment Management Plan as

per TOR.

27. As per EIA, the public hearing was to be held in the Lohit

and Anjaw Districts of Arunachal Pradesh in accordance with EIA

Notification 2006. Accordingly notice for public hearing was given

22

in the newspapers as stated by the State Pollution Control Board in

its reply. Wide publicity was made about the public hearing and

the executive summary of the report were made available in the

office of the District Magistrate of Lohit and Anjaw, Arunachal

Pradesh, Zila Parishad of Lohit and Anjaw, District Industries Office

of Lohit and Anjaw, Regional Offices of MoEF Shillong and MoEF,

New Delhi. As stated by the Board, public hearing was held at

Parasuram Kund, Lohit District and Paya, Anjaw District. People

from downstream area villages like Chongkham, Alubari, Naupatia,

Kyaung, Tissa, Namsai etc have participated and raised issues like

property survey and compensation for land, Basin studies, change

of installed capacity, R and R policy, provision for medical, health

and educational facilities, impact on religious places like Parasuram

Kund, Nimka, Tello, impact on Kamlang Wildlife Sanctuary, influx

of labour, employment and contracts to locals, Dam District ,

geology and dam safety aspects and submergence and downstream

impacts etc. According to the 3rd respondent, majority of the people

have welcomed the project. Copies of the public hearing

proceedings were forwarded by the Board to the Deputy

Commissioner of Anjaw and Lohit on 04.09.2009 to display at the

designated places as per EIA Notification 2006.

28. The EAC has subsequently incorporated based on the views

expressed in the public hearing, in the draft Environment Impact

Assessment/Environment Management Plan Reports and final

copies were sent to MoEF on 01.10.2009. The EAC has considered

the proposal for EC in its meeting on 22.10.2009. Based on the

23

detailed presentation and discussions and all other material things

post public hearing, the EAC has recommended the project for EC

subject to submissions of additional information and clarifications.

The additional information and clarification were furnished on

09.11.2009 and the EAC in its next meeting held on 16.11.2009

considered the same. It is stated that during public hearing

representatives like Mr. Krong and Mr. Suraj Tayan participated

and in the meantime number of representations were received by

MoEF, by group of citizens and civil society, Assam, Mr. Feroz

Ahmed and Dr. Abdul Wakid of Aaranyak, North East affected Area

Development Society, Mr. Suraj Tayan, Mr. Himanshu Thakkar and

many others and all the points raised in this appeal have been

raised. After the response submitted by the project proponent on

13.11.2009, the EAC in its appraisal meeting held on 16.11.2009

reiterated the recommendation for the project for issuance of EC

subject to submission of some more response, which was submitted

on 17.11.2009, 02.12.2009 and 14.12.2009 and the same was

again considered by EAC on 16.12.2009 and recommended

issuance of EC and accordingly, after considering all the aspects,

the MoEF has issued EC on 12.02.2010. Therefore, according to

the project proponent, as the studies were conducted in greater

detail by all authorities, it is incorrect to say that the procedure

under EIA Notification 2006 were not followed.

29. It is stated that EAC is a broad based committee consisting

of Experts from hydrology, water resources, forestry, ecology,

fisheries, socio- economy, geology etc and all decisions were taken

24

collectively and the entire scoping process has been done in detail.

The EAC is only an advisory body and it is ultimately the MoEF

which takes decision. It is denied that the delinking was done

because of the influence of Mr. P. Abraham in the EAC as its

Chairman. It is the case of the 3rd respondent that all the

particulars given in Form I are correct and the correctness of

everyone of information has been verified at every stage. It is also

stated that the project proposal is a Run of the River Scheme with

divisional storage and there is no diversion or consumption as the

water will be released downstream immediately. The 3rd respondent

also denies the averments regarding the winter flood. It is stated

that the hydro-electric projects are basically peaking stations,

providing the Nation muck deficit peaking power.

30. It is the case of the 3rd respondent that as per the TOR,

study was made with respect to Catchment Area Treatment and

Compensatory Afforestation in consultation with the State Forest

Departments as explained in detail by the MoEF in its reply. All the

rationale behind the contents of Form 1 have been explained by the

project proponent and there was no suppression of any material

fact or misleading statement. It is also stated that in hydropower

projects no hazardous waste is generated or handled except the

blasting materials. It is stated by the project proponent that the

question relating to downstream impact has been raised in the

public hearing and were answered properly. The downstream

impact assessment study has been carried out as per the TOR

similar to other hydropower projects in the North-East. 10 Km radii

25

from outer most components of the project area comprising of

83361 ha have been taken as study area. In addition to the 13 Km

of river stretch which falls within 10 Km study area, river stretch

upto 58 Km has been studied with respect of aquatic ecology,

minimum flow, dam break analysis and disaster management etc.

Independent fisheries expert had carried out the study on

evaluation of flow requirements for various fish species in the

downstream stretch for their sustenance and likelihood of breading

grounds etc. and accordingly mitigating measures have been

furnished. The project proponent has also in detail chosen to state

regarding identifying fish migrating path, alterative arrangements

for migratory fishes, changed flow pattern of downstream of the

dam due to the reserve operations, Impact of Demwe Lower

Hydroelectric project on Dibru-Saikhowa National Park, Impact of

the dams in Brahmaputra on the Gangetic Dolphin, impact on

chapories, sediment trappings, riverbed erosion as detailed by the

MoEF in its reply. Thus all the major impacts of downstream river

have been considered fully by the EAC.

31. While reiterating that the river basin study is not to supplant

Environment Impact Assessment/Environment Management Plan of

a project but to supplement the plan to optimize them for ecological

conservation and social upliftment of the area, it is stated by the

Project proponent, that the project was the Lower Most project in

the cascade development of the Hydropower potential of the Lohit

Basin and was also the first planned project in the Lohit Basin and

located in the area which was much less ecologically fragile and

26

prone to environmental degradation. It was considering these facts

the EAC observed that the process of EC for Demwe Upper and the

project in question should not be linked with the completion of the

basin study. It is further stated that the question regarding the

impact due to involvement of influx has been adequately addressed.

As the river Lohit, a tributary of river Brahmaputra, contributes

only 18% annual average flow, the downstream impact study of

Lohit on Brahmaputra is not necessary and therefore the Dibru-

Saikhowa National Park and Biosphere Reserve which is more than

100 Km downstream from the project is also not affected.

32. Regarding Parasuram Kund, while reiterating that the

apprehension of the appellants have been sufficiently answered in

the EAC as well as conditions of the EC, the project proponent

would state that as per EAC’s desire, the project proponent has

enhanced the financial allocation for protection of the Kund from 2

crores to about 10 crores and would maintain adequate water flow

in the Kund during Mela to protect the devotees and maintain the

holy and serene atmosphere with all necessary measures.

Regarding the muck collection and averments made therein by the

appellants, the project proponent reiterates the reply given by MoEF

as enumerated above in detail. The project proponent has also

reiterated the reply by MoEF regarding the compliance of Akwe: Kon

guidelines under convention of Biodiversity.

33. It is stated that scoping, public hearing and every other

requirements for EC as per the EIA Notification 2006, have been

scrupulously followed and EAC has critically examined all aspects

27

including the major aspects regarding the downstream impact and

MoEF has considered each one of them which cannot be found fault

with by the appellants. It is also stated by the Project Proponent,

that it has already spent an approximate amount of Rs 240 Crores

for conducting various studies and for obtaining various clearance.

Accordingly, it is prayed that the appeal should be dismissed with

cost.

34. The 4th respondent, Government of Arunachal Pradesh, in

its reply has stated that Arunachal Pradesh which is the North-

eastern most state in the country is having immense Hydroelectric

power potential. The State is drained by 8 major river basins at

Tawang, Kemeng, Subansiri, Dikrong, Siang, Dibang, Lohit and

Tirap. The hydroelectric power potential of the river basins are

assessed at 57000 MW. In addition 2000 MW hydropower potential

can also be harnessed by small hydroelectric projects. The status

of hydropower potential is more than 1/3rd of India’s total

estimated hydropower potential of 1,47,000 MW. The Central

Electricity Authority in 2010 has given statistical particulars that

the country till May 2011 could harness only 37817.40 MW which

is only 26%. The peak power deficit of Arunachal Pradesh is 15.8%.

The power deficit has hampered all developments in the State.

35. In line with the National Policy, the State has also

formulated its own Hydropower Policy in 2008 and small

hydropower policy in 2007. In spite of high potential, the State is

able to augment only 450 MW which is less than 0.79% of the total

potential. The State Government has entered a MOU with Athena

28

Energy Ventures Pvt. Ltd. (AEVPL) on 09.07.2007 entrusting the

development of Lohit river basin in one or more stages between

elevations from EL + 589 m upto EL + 300 m. In order to avoid

submergence of Kamlang wildlife Sanctuary, the project has been

planned for the development in two stages in consultation with

MoEF as Demwe Upper HEP near Mompani and Demwe Lower

HEP near Parasuram Kund. The State has been constantly holding

review meetings with project developer and obtained requisite

clearance such NOC from State Fisheries Department, State

Irrigation Department, Cultural Department, for Utilization of water

from Lohit River, permission to carry out survey and investigation

from forest department apart from State Power Department for two

stages of developments. According to the 4th respondent, the

appellants who are not undertaking any of their activities in the

State of Arunachal Pradesh, cannot be permitted to stall the

development of State and the appeal by them is not only an abuse

of process of law but also they have no loco standi.

36. While reiterating the grounds stated by the 3rd respondent in

its reply stating that scoping, public hearing have been done as per

the provisions of EIA Notification 2006, and it is stated that the

appellants are attempting to put an end to the project somehow or

other. The State has also in detail responded to various aspects

raised by the appellants namely, scoping and TOR approval

process, identification of project affected families, public hearing

process, EIA and EAC, Downstream impact due to flow variation on

wildlife habitats including Important Bird Area, River Dolphins and

29

Dibru-Saikhwa-National Park, cumulative impacts of multiple

projects in Lohit River Basin, relevance of Forest Right Act for area

under Catchment Area Treatment, and compensatory afforestation,

impact on Parasuram Kund, and balance of convenience. The State

has specifically brought to the notice of the Tribunal, a report

submitted by a committee constituted by the National Environment

Appellate Authority (NEAA) dated 03.05.2010, with three Members

consisting of Shri M.K. Patil, Conservator of Forests, State Forest

Department, Arunachal Pradesh, Dr. Awadesh Kumar, Assistant

Professor, North East Regional Institute of Technology, Itanagar and

Dr. P. Nath, Director, State Fisheries Department, Itanagar to study

the downstream effects of the project on River Dolphins and

important Bird Areas. The Committee after making a thorough

study of all materials including the report on River Dolphins and

Important Bird Habitats and visited the site during the 3rd week of

February 2011 and last week of March 2011 and concluded that

there are no adverse downstream impacts foreseen on River

Dolphins and Important Bird Habitats due to the project during

construction as well as in operational phase. Therefore, the 4th

respondent State, has prayed for dismissal of the appeal as not

maintainable and as abuse of process of law.

37. The 5th respondent Mr. P. Abraham who was impleaded

subsequently by an order of this Tribunal dated 17.07.2013, in his

reply, while narrating the posts held by him apart from stating that

he worked in the Power Sector of the Government for 30 years and

that he has published many books to his credit, has clearly stated

30

that while holding any post as Power Secretary in any organization,

he never took any equity interest or monetary interest in any

company in which he has been in the Board of Directors. His only

interest is being in the Board of Power Sector companies was to

share his knowledge in the field. He has stated that the

Government of India, on 03.04.2007 has reconstituted the EAC for

River Valley and Hydro Electrical Projects and he was nominated as

its Chairman. The EAC consists of Experts from various fields

throughout the country and in respect of hydro projects, decisions

are taken by EAC by the collective wisdom with all Members of the

EAC taken together. According to him, during his Chairmanship,

there was no complaint from any Member of the EAC and

discussions of the Member were free.

38. He has also stated that he was nominated as an

independent/Non- Executive Director of PTC India Ltd. promoted by

Central PSU’s, as a premier Electricity Trading licencee of India,

and listed company in BSE and NSE from 01.06.2004 to

28.09.2011. When M/s Athena Energy Ventures Pvt. Ltd (AEVPL)

was incorporated on 12.03.2007, and PTC India Ltd has become a

share holder in the company, the said company has not decided to

invest in Hydro Electric Projects nor Demwe HEP has been

envisaged as a project to be undertaken by AEVPL. According to

him, the PTC has primarily become a member to perform the role of

providing fuel supply, logistics and tolling services through its

subsidiary. According to him, scoping is only the intermediate

31

process and at that stage it is highly premature to conclude the

environmental sustainability of any project.

39. While meeting the allegation made against him by the

appellants that he being the Chairman of EAC ignored the likely

impacts on cultural sites of Parasuram Kund, Kamlang WLS,

Biodiversity, wildlife habitat, IBA and downstream impact etc. while

denying the allegations as false he has reiterated that the decisions

were collective, joint and unanimous by all Members of the EAC.

He has also stated that during his tenure of 2 years in the EAC, no

undue favour was shown to the Demwe HEP and he do not have

any pecuniary or any other intent whatsoever in Athena Demwe

Power Ltd. He has also stated that he has resigned as Chairman of

EAC on 22.06.2009 voluntarily.

40. Mr. Ritwick Dutta, learned counsel appearing for the

appellants, has raised many issues while challenging the EC

granted by the MoEF to the 3rd respondent project proponent for

the 1750 MW Demwe Lower Project. The first contention raised by

him is that the participation of Mr. P. Abraham, as the Chairman of

EAC in the preliminary scoping stage vitiates the entire process

culminating into the issuance of EC to the project proponent for the

reason that the said Mr. P. Abraham being a Director of PTC India

Ltd. which is one of the founder promoter of M/s Athena Ventures

Private Ltd. which has taken up the project. Therefore, according to

him, the participation of an interested Director of the promoter

company of the project proponent at the earliest scoping stage has a

definite tendency of influencing the decision of EAC. As the

32

application can be rejected at the initial stage of scoping as per the

EIA Notification, 2006, the participation of the interested Director

as the Chairman of EAC has thwarted such action. According to

him, the scoping is the first foundation stage and it plays a

significant role of permitting preconstruction activities and site

clearance. He would rely upon a Judgment of the High Court of

Punjab and Haryana in Vijay Bansal and others Vs State of Haryana

and others in CWP No. 2013 4/2004 dated 15.05.2009 to contend

that the “relevant environmental concerns” stated in the EIA

Notification 2006 forms the ‘soul’ and ‘spirit’ of the Notification. He

also cited a Judgment of the NGT in Bharat Patel Vs Union of India

in Application No. 55/2013 (WZ) wherein it was held that TOR

could be challenged under Section 14 of NGT Act, 2010. According

to him, the siting of the project which should have been considered

in the scoping stage has been ignored. He also submits that at that

stage the Cultural heritage of Parasuram Kund and downstream

impact has been ignored. The presence of Mr. P. Abraham as the

EAC Chairman would result in conflict of interest and prejudicially

affects the neutral decision making process. It establishes bias.

Further, it was because of the objections raised by the civil society

groups the then Minister has directed Mr. P. Abraham to resign.

According to him, as per EIA Notification 2006, the Chairperson of

EAC has to endeavour to reach consensus in each case and

thereafter mere non objection raised by any Members of EAC is not

a sufficient defence for the possible bias which the Chairman would

have exercised on the Members of the EAC by citing the clause in

33

EIA Notification 2006. He submits that the selective delinking the

project with Basin study is the obvious influence by Mr. P.

Abraham. He submits that delinking is arbitrary and illegal.

According to him, none of the other projects in the Lohit River Basin

have been appraised for grant of EC pending completion of Lohit

river basin study.

41. According to Mr. Dutta, after resignation of Mr. P. Abraham

which was done on realizing the conflict of interest, the EAC ought

to have taken a revision of the decision already taken. Therefore

there was a likelihood of bias and the EAC should have revised the

decision and its failure would vitiate the subsequent proceedings.

He has also submitted that the failure of EAC in deliberating on the

public hearing during appraisal whether accepting or rejecting the

objections is a serious lacuna.

42. He submits that downstream impact study has not been

effected and ultimately people in downstream of the project

especially in Assam like the Appellants are affected. The absence of

downstream study affected their livelihood. He has also submitted

that the impacts on chapories of the Lohit river has not been

studied. The impact of flow fluctuations which are to be looked in

terms of the entire complex of water bodies, riverine islands,

grassland and forest has also not been done. The three Member

Committee constituted by the State of Arunachal Pradesh has been

widely criticized by the wildlife biologists from North East like Dr.

Gautam Narayan, and Dr. Abdul Wakid. He also submits that

impact of peaking operation on downstream area including Dibru-

34

Saikhowa National Park has not been studied. According to the

learned Counsel the respondent’s stand is misleading. He has

also referred to some of the views expressed by Experts to support

his contention that such study comprehensively is a must for

approval of such mega projects. He submits that the post clearance

downstream study is against the precautionary principles and

principles of sustainable development.

43. The learned Counsel also submits that the impact of

endangered wildlife and their habitat are not considered by the

EAC. According to him, Kamlang Sanctuary cannot be the primary

motive but it must be the economic viability of cascade development

along the river stretch. He submit that the bifurcation 3000 MW

project into two was mainly based on the upstream investigated site

at Mompani and it is purely a commercial angle rather than

environmental issue. The principles of protection of endangered

species has been held to be imperative by the Hon’ble Supreme

Court in the judgment reported in (2013) 8 SCC 234 and species

like Bengal Florican and Wild buffalo ought to have been studied

before clearance. He also submit that non study of impact of Lohit

Basin study and cumulative impact of the projects in the basin are

sufficient to hold that the EC is illegal.

44. While referring to the non consideration of the Cultural

impact studies including the Parasuram Kund, he submits that it

results in appropriate siting of the project. He submits that on

cultural impact earlier projects like Lohari Nagarpala, Pala Maneri

and Bhaironghati have been scraped. He submits that Parasuram

35

Kund being a cultural heritage, it is declared as an Archaeological

heritage of Arunachal Pradesh. The excavated materials if loaded in

the area the aesthetic sense and serene nature of the Kund will be

affected and the same has not been considered. According to him,

the importance of Parasuram Kund has been well recognized by the

Hon’ble Supreme Court in its Judgment in State of Arunachal

Pradesh V/s Khudiram Chakma reported in 1994 SCC(1) (Suppl)

615. Mr. Dutta while concluding his submissions, has reiterated

that as the EC is vitiated for more than one reason, wildlife

clearance has to go, as the same was vehemently opposed by all the

non official Members. He again reiterates that by not making the

downstream study, there is a total breech of precautionary

principles and therefore, it is his submission that the EC should be

set aside.

45. Per Contra, it is the contention of Mr. Tarun Johri, the

learned Counsel appearing for the 3rd respondent, project

proponent, that as per the project study, minimum flow of 10% of

water was to be maintained and in fact downstream study has been

conducted and therefore it is not proper to say that no study was

conducted and the project has been approved just like that. It is

his submission that even for siting, a thorough study was

conducted by agencies like NEEPC, Brahmaputra Board, NHPC

from 1980 till finalisation of Demwe Lower HEP by the 3rd

respondent. According to him, 4 alternative sites were suggested

but it was ultimately found that site about 1600 m upstream of

Parasuram Kund Bridge was considered to be topographically and

36

geologically best. This was referred by project proponent to the

Committee for River Valley and Hydroelectric projects of MoEF and

after detailed discussions MoEF has approved the revised TOR with

two conditions that the Kamlang Wildlife Sanctuary shall be kept

outside the submergence area of the project and keeping in view the

seismologically sensitive area, dam height should be kept minimum

as required for power generation purpose. Therefore, it is not

proper to say that no siting criteria was followed at the time of

scoping, according to the learned Counsel.

46. It is his submission that considering the proximity of the

Kamlang Wildlife Sanctuary, a Biodiversity and Wildlife

Management Plan was formulated in the EMP with the objective of

maintaining a sustainable approach between customs and culture

of the local communities and biodiversity conservation etc. apart

from Forest Protection Plan and it was after careful study especially

of dam safety, downstream impact, minimum flow, protection

measures of Parasuram Kund, geological and seismicity aspects,

sedimentation and silt flushing etc. raised in various

representation, EC was granted and there can be no fault in that at

all.

47. Regarding the status of projects coming up in Arunachal

Pradesh, while contradicting the stand of the learned Counsel for

appellant that MOU have been entered for more than 125 projects,

Mr. Johri, would submit that out of 14 projects for which EC was

granted only 4 are under construction and only 1 has been

commissioned in Subansiri, other than the Lohit project for which

37

EC has been granted by the MoEF on 10.02.2010 which is

impugned and NWLB has also granted its permission and stage II

clearance was given on 03.05.2013 which is also challenged in

Appeal No. 9/2010. Therefore, it is not correct to give a wrong

picture as if many projects have come in the area.

48. Regarding the effect on Parasuram Kund, the learned

Counsel for the project proponent would submit that there are no

major impacts envisaged. Infrastructure developments, muck

disposal system protects sufficiently the cultural site. It is his

submission that a society which is maintaining the Mela called

Parasuram Kund Improvement Society has given no objection and

the project proponent would increase the payment from 2 Crores to

10 Crores to be spent for the benefit of the devotees. In fact, the EC

has taken care of the same by imposing strict conditions relating to

release of water during the Mela period. The public hearing and

consultations have been considered for such imposition of stringent

conditions.

49. While meeting the arguments relating to scoping raised by

Mr. Datta, Mr. Johri would submit that no projects are rejected at

scoping stage except when on the face of it such projects cannot be

sustained. Mr. P. Abraham was an independent Director of PTC

India Ltd, but as a Chairman of EAC in respect of Demwe Lower

HEP, all decisions were taken collectively. He submits that in the

absence of any instance that any of the Member of the EAC have

raised objection at scoping stage, it cannot be said that Mr. P.

Abraham has influenced any Members. He also submits that

38

scoping is in the most preliminary stage and even if some mistakes

are committed the same can always be rectified by additional TOR

and as such it has been done in this case at a later stage. The

project being site specific there is no scope for any one influencing

the decision regarding site identification. He submits that in any

event as stated by him the above site has been choosen after

thorough study and there is absolutely no scope for any mistake.

50. Regarding delinking of EC from Lohit river basin study, the

learned Counsel while denying the contention raised by the learned

Counsel for the appellant that it is against the precautionary

principles, would submit that such delinking was not done only for

Demwe Lower HEP and such delinking has been done in many

projects like Kalai-I, Kalai-II, Hutong II HEP, Anjaw HEP 280 MW,

Raigam HEP, Gimliang HEP 80 MW and Gimliang HEP 74 MW. He

also submits that the Inter- Ministerial Group (IMG) has

recommended not to hold up EC pending basin study as such study

is elaborate and comprehensive would take 1 to 2 years. He has

also stated that while Mr. P. Abraham was involved only in the

scoping stage, actual environmental appraisal and clearance was

considered by EAC chaired by Shri. Devendra Pandey and therefore

there is no question of likelihood of any bias.

51. While dealing with the contention of Mr. Dutta about

peaking operation and Diurnal variation in Demwe Lower HEP, the

learned Counsel for respondent no. 3 would submit that hydro

power stations have inherent ability of instant starting, stopping,

managing of load variations and help in improving the reliability of

39

the power system, particularly for meeting the peaking

requirements and by taking note of the study for a period of 19

years about flow variation, he would submit that the project is not

going to alter or increase the natural variation significantly as

revealed by the scientific study. He has also submitted that the

appraisal process carried out by the EAC shows that it was

considered for 3 times and in fact every time the EAC required

clarifications from the project proponent based on which additional

information have been furnished. Therefore, it was by proper

application of mind entire procedure have been done and no

distraction can be drawn. Therefore, he submits that the appeal is

devoid of any merits and is liable to be dismissed.

52. Mr. Vivek Chib, learned Counsel appearing for the MoEF,

while reiterating the contents in reply and also adopting the

arguments advanced on behalf of the project proponent, would

submit, that at the stage of scoping there is no possibility of any

bias especially when Mr. P. Abraham was not in the appraisal

process and therefore the Utkash Mandal Judgment has no

application. His submission is that the entire process as envisaged

shows that there is a proper application of mind and in fact TOR

was issued by the MoEF after the field visit by a sub-committee

from among EAC, in which Mr. P. Abraham was not a party and

therefore the decision has been taken strictly in accordance with

the EIA Notification 2006. Even if there is no application of mind,

according to the learned Counsel, in accordance with EIA

Notification 2006, this Tribunal sitting as a second Appellate

40

Authority to decide question of law akin to Civil Court power under

Section 90 of the Code of Civil Procedure, cannot interfere unless

there is gross violation of law or Notification itself. He submits that

under EIA Notification 2006, Clause 7(IV) while speaking about

“appraisal” clearly states that EAC while recommending the project

shall stipule special or general conditions and only in cases of

rejections reasons must be given. When that is the legislative

intention, imposing of conditions while granting recommendations

or EC itself amounts to application of mind and cannot be

questioned as arbitrary. The said clause read with Appendix V

shows that the minutes of the meeting of the EAC to be read

together.

53. He further submits that the Tribunal being a creature of law

must act within the boundaries of law by which it is created, and

must take a holistic view as to whether there has been an

application of mind by EAC and MoEF before granting EC. He

submits that Utkash Mandal Judgment was given without

considering Appendix V of the EIA Notification 2006. He also

submits that in the Judgment of the NGT Eastern Zonal Bench,

Bhopal in Ramesh Agarwal Vs Union of India and Others, the

Tribunal has taken such a stand in paras 28, 31 and 32.

54. He also submits that the Hon’ble Supreme Court in

Maharashtra State Board of Secondary and Higher Secondary

Education Vs K.S. Gandhi and others reported in (1991) 2 SCC 716,

at Para 20 has clearly stated that “unless the rule expressly or by

necessary implications exclude” and that when read Clause 7(IV)

41

with Appendix V, one can understand about the specific exclusion

of reasons. To substantiate his case about the application of mind

and reasons to be given or nor he relied upon the Judgment of the

Supreme Court reported in (2004) 4 SCC 615 and (2010) 9 SCC

486.

55. Mr. A.D.N Rao, the learned Counsel appearing for the State

of Arunachal Pradesh, the 4th respondent has submitted that the

State which is situated in the extent of 83743 sq km, has 67321 sq.

km forest area with about 80.1 per cent forest cover. There are 8

major river basin as stated in the reply and presently Lohit river

basin has the potential of hydro-electric plants covering 57000 MW

and 2000 MW of small hydro electric stations against the National

potential of 1,47,000 MW. Therefore, 1/3 of power potential of the

country is available in the State. In spite of such huge potential, as

on date the State is power deficit producing a meagre 450 MW

Power, which is only 0.79 per cent of its total potential in the State.

In the Lohit River Basin, 7 projects were proposed out of which only

one Demwe Lower HEP is given EC and FC. He has also brought to

the notice of the Tribunal that the Tribunal in M.A. 53/2013 in its

order dated 18.03.2013 has rejected the contention regarding

public hearing that State of Assam is not a party. The impleading

petition by Assam was rejected even though in the FC Assam is a

party. Property connected with the project which is in 70 Km as

crow flies, 60 Km lies within the State of Arunachal Pradesh. He

submits that regarding public hearing notice as against the 2

42

Newspapers required as per EIA Notification 2006, 6 publications

were effected so as to give wide publicity of the proposed project.

56. In the public hearing 519 people participated at Parasuram

Kund and 237 in paya, apart from many representations made in

writing. For want of electricity the State is using 230 lakhs litre of

diesel annually emitting 50 lakhs tonnes of carbon monoxide and

over 40 years, about 250 million of carbon dioxide are emitted

which is not only dangerous to human habitation but also causes

global warming. Therefore, HEP is a matter of necessity for the

State not only for its economic survival but also to retain the

environment clear in the State. That apart he adopts the

arguments advanced by the learned Counsel for the project

proponent and submits that the appeal is liable to be dismissed.

57. We have heard all the learned Counsel extensively, referred

and traversed through all the bulky documents filed by all the side

and given our anxious thoughts to the issues involved in this case.

Accordingly we arrive at the following issues to be discussed and

decided:-

1) Whether the presence of Mr. P. Abraham during the scoping

stage of EAC in considering Demwe Lower HEP would vitiate

all the consequent proceedings of EAC and the EC?

2) What is the scope of scoping under EIA Notification 2006 and

whether any decision taken at the scoping stage cannot be

changed and has to be treated final?

3) Whether EAC has considered all the issues relating to

43

(i) The effect of the project on the cultural heritage of

Parshuram Kund?

(ii) Appraisal proceedings done as per the EIA Notification?

(iii) Delinking of the basin study from the EC and its effect?

(iv) Effect of peaking operations of the project?

(v) Effect on Biodiversity including the effect on Dibru-

Saikhowa National Park?

(vi) Cumulative impact study? And

(vii) Muck disposal and suggested sufficient safeguards.

4) Whether public consultation process has been done properly

and in accordance with the EIA Notification 2006.

5) Whether the EC is liable to be held invalid.

58. In the background of the above undisputed facts elaborately

explained and based on the pleading we propose to approach the

issues one by one. Before adverting to the same, we think it

appropriate to examine the position of Arunachal Pradesh and its

requirements especially regarding the present status pertaining to

the environmental issues and incidentally consider its other

requirements.

59. Arunachal Pradesh which is a North Eastern most State in

the country is situated in the total area of 83747 square Kms and

as stated by the learned Counsel appearing for the said State

Government Mr. A.D.N. Rao, out of the total extent, 67321 sq.km of

area is covered by forest. Therefore, the state has got the forest

cover of 80.1 per cent. It has got 8 major river Basin with the total

44

hydroelectric power potential of the said Basin which has been

assessed at 57000 MW apart from the 2000 MW hydropower

potential from smaller hydro electric projects. The National

potential estimated of hydro electric power is stated to be 1,47,000

MW and if that is taken into consideration the hydroelectric power

potential of Arunachal Pradesh is 1/3rd of the National potential.

While the countries big power deficit is 9.8 per cent, the deficit in

the North East is 18.5 per cent. In spite of the hydroelectric

potential of the river Basin situated in Arunachal Pradesh to the

extent of 57000 MW the State is able to develop as on date its

capacity of 460 MW which is less than 0.79 per cent of the National

potential. This statistical points conformed by the Central

Electricity Authority shows that in spite of its hydroelectric power

potential the State of Arunachal Pradesh is suffering of power

deficit. Admittedly there are no industries in the State for

augmenting its economic development.

60. It is stated that even though a significant number M.O.U.

have been entered with the Government, as on date if one refers to

the status of hydroelectric power projects coming up in Arunachal

Pradesh, it would only show an alarming situation. It appears as

circulated in the list of projects and stages as on May 2014, as on

date there has been only 14 projects in respect of which EC has

been granted, nevertheless it is only in respect of one project in

Subansiri, Ranganadi HTP with an installed capacity of 450 MW

which has been commissioned. The other projects which are not

commissioned in spite of EC having been granted by MoEF, other

45

than Demwe Lower 1750 MW of Lohit River Basin for which both

EC and FC are granted which is a subject matter of dispute in this

appeal and another appeal are:

1. Kameng Basin, Gongri with the installed capacity of 90 MW.

2. Kameng Dibbin 125 MW

3. Kameng Khuitam 66 MW

4. Kameng Nafra 120 MW

5. Kameng Kameng 600 MW

6. Siang, Tato-II 700 MW

7. Siang, Sian Middle (Siyom) 100 MW

8. Subansiri, Lower Subansiri 2000 MW

9. Dikrong, Pare 110 MW

10. Tawang, Nyamjangchhu 780 MW

11. Tawang, Tawang stage 1 HEP 600 MW

12. Tawang, Tawang stage 2 HEP 600 MW which are still pending.

It is in the light of the above said real situation which in our

considered view is also concerning the sustainable development,we

have to approach the dispute in question.

61. Before taking up everyone of the issues framed by us

individually we propose to take the issue no. 2 as a first one for our

consideration. Issue no. 2 which we have framed is as follows:

Issue No. 2: What is is scope of scoping under the EIA Notification

2006 and whether any decision taken at the scoping stage cannot

be changed and has to be treated as final?

The Environment Clearance Regulation 2006, herein after referred

to EIA Notification 2006 is a statutory notification issued by the

46

Government of India in exercise of its powers conferred under

Section 3 (2)(v) of the Environment (Protection) Act 1986 read with

Rule 5(3)(d) of the Environment (Protection) Rules 1986. By the

said Notification the Government has prescribed the procedure to

be followed for construction of new projects or activities or

expansion or modernisation of existing projects or activities listed in

the Schedule to the Notification entitling capacity addition with

change in process and or technology to be undertaken in any part

of India and only after obtaining prior Environment Clearance from

Central Government or from the State Level Environment Impact

Assessment Authority as the case may be.

62. While the notification makes certain activities as ‘A’ category

for which Central Government in MoEF and certain activities as ‘B’

category for which the SEIAA in the State Level are made competent

to give prior EC as Regulatory Authorities. As the Hydro Electric

Power Projects, are categorised as ‘A’ projects in the Schedule to the

Notification while following various stages prior to grant of

Environment Clearance, the new projects of Demwe Lower HEP

1750 does not require to undergo the first stage of ‘screening’ as per

clause 7 of the Notification which enumerates 4 stages to be

undergone by a project before EC is granted. That takes us to the

stage no. 2 called ‘scoping’ to be undergone by the project in issue.

It is common ground that as a first step, the project proponent is

expected to make his proposal as an application in Form I

prescribed in appendix I of the EIA Notification 2006. “Scoping”

refers to the process by which the Expert Appraisal Committee

47

(EAC)determine detailed and comprehensive Terms of Reference

(TOR) addressing all relevant environmental concerns for the

preparation of Environment Impact Assessment (EIA) Report to be

prepared by the project proponent in respect of the project or

activity for which prior Environment Clearance is sought. The EAC

determines Terms of Reference on the basis of information

furnished in the prescribed application in Form I, a site visit by a

sub group of EAC only if considered necessary by the EAC, Model

Terms of Reference if suggested and furnished by applicant and

other information’s that may be available with the EAC. Therefore,

the said word “scoping” forms the first part of the stage no. 2

contemplated in clause 7 (II)(2) of the EIA Notification 2006.

63. It is no doubt true, as stated in clause 7 (II) (2)(iii) that the

application for prior EC may be rejected by the Regulatory

Authority, on the recommendation of the EAC at the stage of

scoping itself, with reasons for such rejection, which should be

communicated within 60 days of receipt of the application. But

that does not mean that at the scoping stage the proposal could

deemed to be sanctioned based on the contents of Form I after

60days of the application and deemed to be recommended by the

EAC for issuance of EC. The EAC can always reappraise and issue

additional TOR seek information or clarification till it is satisfied

that the entire material particulars have been placed before it for its

thorough consideration so as to enable the final TOR to be

formulated so that the project proponent can go for Environment

Impact Assessment (EIA) study and submit the same again to MoEF

48

which will be referred to EAC once again for its consideration and

final recommendation. As submitted by the learned Counsel

appearing for the appellant Mr. Ritwick Dutta it is no doubt true

that the “scoping” stage is the foundation stage of a project and it is

definitely the “soul” and “spirit” of the EIA Notification as held by

the High Court of Punjab and Haryana. But we are unable to

accept his contention as if any decision taken by the EAC during

“scoping” cannot be changed or altered for the better Environmental

protection by EAC. The TOR prescribed by the EAC based on the

contents of the application in Form I, site visit of the sub group if

found necessary and other particulars can always be altered by

additional TOR by asking the project proponent to explain doubts if

any raised by EAC regarding any material facts found or discovered

in Form I or site visit. In the absence of any bar in the EIA

Notification 2006 for the EAC to issue additional TOR till it is

completely satisfied about the project there EAC is entitled either to

call for additional particulars or ask for rectification based on site

visit by the sub group. In respect of Hydro Electric Power Plants

which are normally site specific in nature, the site visit by the sub

group of EAC certainly helps the experts constituting the EAC to

modify the proposed TOR of the project proponent or make

alternation or addition to the TOR. On the facts of this case itself it

is seen clearly that in respect of Demwe Lower HEP 1750 MW in

Lohit River basin of Arunachal Pradesh the EAC has considered the

proposal along with other projects at least on 3 occasions namely

21st & 22nd October, 2009, 16th November 2009 , 15th and 16th

49

December 2009. In fact as it is seen in the summary of records of

discussion of the 31st meeting of the EAC dated 21st and 22nd

October, 2009, after the EAC has taken note of the fact that the

initial TOR issued for the project in July/August 2007 and

subsequent bifurcation of the project into Demwe Lower HEP and

Demwe Upper HEP, the meeting considered in greater detail about

the situation of the project including that the Dam access is located

about 100m upstream of Parshuram Kund Bridge on NH-52 and

falls in Lohit District with reservoir extended into Anjaw District of

the State. The EAC in the said meeting has also considered that

the minimum draw down level of the project will be at elevation of

408 m as finalized by CEA/CWC with live storage of about 171.20

m.cum and that a surface power house is proposed on the right

bank of Lohit river to accommodate 5 numbers of vertical Francis

turbines of 342 MW each and 1 unit of 40 MW to generate a total

installed capacity of 1750 MW. It was taken note of by the

Committee that the water after power generation will be discharged

back to the river through a 130 m long tail race channel and the

project will generate 6322 million units in a 90 per cent dependable

year at 95 per cent machine availability. A reference to the minutes

also shows that this project after bifurcation was granted TOR on

scoping approval on 25th March 2008 for generation of 1200 MW

which was subsequently increased to 1750 MW based on study of

water availability without changing the physical parameter. The

Committee in the said meeting has considered height of the dam at

160 m and therefore it needs to provide dependable warning system

50

to the downstream flood plain upon the event of a dam break. It

was found that the rise in water surface elevations in the event of

PMF plus dam break would be seen in the downstream reach of 58

km and this entire area lies within geographical boundary of

Arunachal Pradesh and concluded that 23 villages in the

downstream reaches would be affected. It also considered the

clarification issued by the developer that dam break analysis has

been carried out using HEC/RAS model for the critical condition

when the reservoir is at FRL and design flood hydrograph (PMF) is

impinged. Further the Committee has considered the Disaster

Management Plan, Glacial Lake Outburst Flood (GLOF) studies and

called for clarification on segments uploading and silt disposal

system. The Committee also considered the biodiversity and

ecological aspect and took note of the primary data with appropriate

details and suggested that some more maps like the one shown in

for sampling locations of soil could be prepared for terrestrial

ecology, water quality. Further it has considered about the nearest

boundary of Kamlang Wildlife Sanctuary (KWLS) which is about 9.3

km upstream aerial distance from the dam site apart from the

minimum flow and fisheries aspect. In fact in this regard the report

shows that the Committee desired that for the environmental

release of 35 cumecs, adequate depth and velocity for the dominant

channel in the downstream reaches be provided as several braided

streams from the Lohit river downstream of the dam site.

Regarding the seismic activities the Committee desired the details of

investigation on geological aspects carried out and submitted.

51

64. Further the Committee in the meeting has in detail

considered about the representation on the impact of Parasuram

Kund. It considered the provisions made for developing basic

infrastructure for bathing ghats, sewage/ sanitation facilities,

marketing complex, shelter, recreation area (Parks, sitting space

etc) and found that on completion of the project huge water body

would be created that will have its own scenic beauty and therefore

it would add to the development of Parasuram Kund site into a

tourism destination. It was considering the same, the Committee

has recommended the increase of financial allocation for Parasuram

Kund from 2 Crores to 10 Crores. In that meeting after critically

examining all environmental aspects considering the discussion

and clarifications given by the project proponent on various

environmental concerns especially dam safety and downstream

impact, minimum flow, protection measures for Parasuram Kund,

geological and seismicity, sedimentation and silt flushing etc along

with public hearing, the Committee has directed the project

proponent to give additional informations regarding various aspects

namely:

Maps depicting locations of sampling sites for terrestrial

ecology and water quality.

Methodology adopted for Ecological studies be elaborated for

clear understanding.

The Ecological species mentioned in the EIA/EMP report

should be cross checked with the Literature by Dr. Haridasan

(SFRI), and incorporated in the EIA/EMP report.

52

Additional information of river cross sections of the D/S

reaches considered for dam-break analysis along with Tail

water rating curve and flow velocity of various reaches in the

event of dam break analysis.

Details of braided river course of the downstream reach in

which fish migration would take place during the release of

environmental flow.

The 5 micro stations installed for seismic monitoring, should

be increased to at least 7 no in consultation with NSIT, Jorhat.

Salient findings of geological assessment carried out in the

project area as a part of EIA.

Alternate arrangements along with hatcheries, if feasible may

be explored for the migratory fishes.

The financial allocation for the protection of the Parasuram

Kund needs to be enhanced from Rs. 2 crores to about Rs. 10

crores.

Regarding the flow requirements at the Parasuram Kund

during Mela period in the month of January, letter to be

obtained for the duration as determined by the Parasuram

Kund Improvement Society.

Confirmation from State Pollution Control Board in respect of

para 6.6, Appendix IV of EIA Notification 2006.

65. In a subsequent meeting of the EAC held on 16th November,

2009, the Committee has considered the additional remarks

required earlier which runs to nearly 8 pages relating to

methodology adopted for ecological studies and maps depicting the

53

locations, cross checking of species with Dr. Haridansan’s Report,

additional informations of river cross sections in the downstream

reaches for dam analysis, details of braided river course of

downstream reaches for identifying fish migration path, installation

of adequate number of microstations for seismic monitoring,

salient features of geological assessment, alternate arrangement of

migratory fishers, enhancement of financial location for the

protection of the Parasuram Kund, requirement of adequate water

flow at Parasuram Kund during Mela period in the month of

January, changed flow pattern in downstream of dam due to the

reservoir operations, impact of Demwe Lower HEP on Dibru

Saikhowa National Park, impact of dams in Brahmaputra on the

habitations of the Gangetic Dolphin, impact of Demwe Lower HEP

on Beels and Chapories, impact of Demwe Lower HEP on sediment

trapping, GLOF studies, flood moderation, river bed erosion due to

reservoir operations, impact of tail water release on the Parasuram

Kund, impact of bolder collection from river bed for construction,

compliance of Akwe: Kon guidelines under the convention of

biodiversity and failure of Coffer Dam.

66. It was in that meeting on 16th November, 2009 the

Committee has considered various representations by public/civil

societies and NGO’s Mr. Ahmed Ramyak, Mr. Neeraj Vagholikar of

Kalpavriksha, NEADS Jorhat, group of citizens and civil society,

Assam and also representations from Mr. K. Krom Ex-Minister

Arunachal Pradesh, Dr. Chandan Kumar Sharma Associate Prof.

54

Department of Sociology, Tezpur University Assam and Bimal Goi,

Assam.

67. After examining the environmental aspects and considering

the comprehensive clarifications and responses submitted by the

project proponent in respect of various observations and the

representations submitted by the members of various Civil

Society/Individuals/ NGOs, while reiterating its recommendation

for EC, the Committee has called for additional information

regarding written response in respect of the representation made by

Mr. Krom, Mr. Gogoi and Dr. Sharma apart from report by fisheries

Expert of technical evaluation regarding possible breeding grounds

including Parasuram Kund.

68. The meeting of the EAC dated 21 and 22 October, 2009 was

charied by Dr. Devendra Pandey along with the Vice Chairman Dr.

A.K. Bhattacharya and Members Dr. O.P. Sisodiya, Dr. B.P Das,

Shri R.K Singh, Prof D. Goswamy, Dr. J.K Sharma, Prof. D.K. Paul,

Dr. D.K. Alva and Dr. S. Bhowmik being its Member Secretary.

Likewise in the meeting held on 16th November, 2009 it was chaired

by Dr. Devendra Pandey along with Vice Chairman Dr. A.K

Bhattacharya and Members Dr. O.P Sisodiya, Dr. B.P Das, Prof. D

Goswami, Dr. J.K Sharma, Dr. S.R Yousuf, Shri R.K Singh, Dr. S.

Bhowmik as a Member Secretary apart from Dr. P.V Subba Rao

from MoEF.

69. In the 3rd meeting of EAC conducted on 15th & 16th of

December, 2009 which was in fact the 33rd meeting of the EAC

again while considering the Demwe Lower HEP 1750 in Lohit

55

District of Arunachal Pradesh the Committee took note of the

submission of fisheries expert regarding fish breeding grounds in

and around Parasuram Kund apart from the response for the

representations of the above said 3 persons. The Committee has

taken note of various representations and the impact study on the

downstream made upto 10 kms and there has been representations

that the impact was likely to be beyond 10 kms downstream and

directed that the study beyond 10 km should be produced for a

separate TOR and thus the meeting was adjourned to 19th and 20th

January, 2010. It was in that meeting also Dr. Devendra Pandey

was sitting as a Chairman apart from Dr. A.K Bhattacharya as Vice

Chairman, Dr. O.P Sisodiya, Dr. B.P das, Dr. D.K Paul, Dr. D.K

Alva, Shri R.K Singh, Dr. S. Bhowmick as Member Secretary apart

from Dr. B.V Subarao from MoEF.

70. Therefore, in all the above said 3 meetings of EAC additional

TOR’s have been prepared and issued and recommended by the

EAC based on various clarifications submitted by the project

proponent and after considering the entire gamut of environmental

issues by all the Members thoroughly. All the 3 meetings have

taken place during the scoping study. This clearly shows that

scoping is not only an initial process but it is a continuing process

and EAC is entitled to recommend additional TOR till all requisite

information is available for appraisal of the project. A close study of

the entire minutes of EAC as elicited above shows the healthy trend

and implementation of the spirit of the EIA Notification 2006 by

EAC during the process of scoping. Therefore it is clear that the

56

scoping which is an initial process and decision taken during

scoping process continues till final TOR is recommended by EAC

and certainly during that period the EAC is entitled to make

changes, alterations and additions and therefore till final TOR is

issued one cannot say that decision taken in the EAC meeting

during scoping are final. The second issue raised by us is answered

accordingly.

71. Issue No. 1: Whether the presence of Mr. P. Abraham during

the scoping stage of EAC in considering Demwe Lower HEP, vitiate

all consequent proceedings of EAC and the EC?

The EAC at the level of Central Government is as contemplated in

clause 5 of the EIA Notification 2006 and its composition is as given

in Appendix no. VI. As per Appendix No. VI it is made clear that the

EAC shall consist of only professionals and experts fulfilling the

various criteria contemplated therein. The Appendix also states

that the members of EAC shall be experts with requisite experience

in various fields or disciplines like environment quality, Sectoral

Project Management, Environment Impact Assessment process,

Risk Assessment, Life science, Forestry and Wildlife, Environmental

Economics with experience in project appraisal, public

administration or management, and the number of Members of EAC

shall not exceed 15, however, with liberty to the Chairperson to co-

opt an expert as a member in a relevant field for a particular

meeting of the Committee. The maximum tenure of a Member

including Chairperson is 2 terms of 3 years each.

57

72. It is also relevant to point out at this stage that Clause 5 of

the EIA Notification 2006 while speaking about the screening ,

scoping and appraisal committees states in clause 5 (e) as follows:

“EAC and SEAC’s shall function on the principle of

collective responsibility. The Chairperson shall

endeavour to reach a consensus in each case, and

if consensus cannot be reached, the view of the

majority shall prevail”.

It is the contention of Mr. Ritwick Dutta, that as the Chairperson is

entitled to take efforts to reach a consensus, his position is more

influential. This he has raised in the context of Mr. P. Abraham

who was appointed as the Chairperson of the EAC which has

considered Demwe Lower HEP 1750 MW project. His contention is

that Mr. P. Abraham was already a non executive director of PTC

India Ltd which is stated to have promoted the 3rd respondent

project proponent herein and therefore his presence as a

Chairperson in the EAC to consider the project concerned is capable

of influencing in decision making process and therefore there a

likelihood of bias. It is for that purpose he has relied upon the

above said clause 5 (e) of the EIA Notification 2006. The above said

contention in our view is baseless. As per the notification any

decision is based on collective responsibility. As per Appendix VI all

the members including Chairperson are well qualified experts and

one cannot accept the contention that such experts would yield to

the Chairperson if any illegal or unsustainable proposals are

insisted on them. The said provision should be only construed to

58

mean that in normal circumstances the collective responsibility with

the consensus of all Members shall be taken in which event, the

Chairperson responsibility is to endeavour to reach consensus

which cannot mean that his influence should be binding on all

members. Each of the expert members who are well qualified as

prescribed under the notification are entitled to take their views in

which case majority will prevail. Therefore, there cannot be any

presumption that the Chairperson will influence the other expert

members. Such view will be only undermining the independent

status of the members of the EAC.

73. Now coming to the fact of the present case, it is not in dispute

that the Government of India while reconstituting EAC for river

valley and hydro electric projects has nominated Mr. P. Abraham as

it is Chairman on 03.04.2007 and he has resigned from the post on

22.06.2009 and thereafter it was Dr. Devendra Pandey who became

the Chairman. It is true that originally the project proponent has

given proposal for Demwe HEP (3000 MW) and that was submitted

on 10.07.2007 by the Government for consideration by EAC. On

that day it is no doubt true that Mr. P. Abraham was the

Chairperson of EAC and TOR was also granted. But the fact

remains that during reconnaissance survey of the allotted stretch of

Lohit River and additional data collection the 3000 MW Demwe HEP

was found by Central Electricity Authority (CEA) with FRL at 490m

causing partial submergence of Kamlang Wildlife Sanctuary (KWLS)

and to avoid the same the earlier project was decided to be

developed in 2 stages Demwe Lower Project and Demwe Upper

59

Project within the allotted stretch given by the Government of

Arunachal Pradesh. The project proponent has submitted a revised

Form I afresh on 01.02.2008 seeking EC for Demwe Lower HEP

1750 MW. Therefore, upto the period on 1st February 2008 from the

date of original application namely July 2007, there could not be

any dispute by Mr. P. Abraham sitting as Chairman of EAC, as the

decision for bifurcation was taken due to reconnaissance. After

01.02.2008 Mr. P. Abraham remained as Chairperson till his

resignation on 22.06.2009.

74. After the revised application in Form I was filed by the project

proponent on 01.02.2008 the scoping approval was granted for

Demwe Lower HeP 1200 MW on 25.03.2008 and it was

subsequently raised to 1750 MW based on study on water

availability without changing physical parameter. On record it is

clear that either when Demwe Lower HEP 1200 MW was granted

TOR on 25.03.2008 or subsequently when it was increased to 1750

MW, such decision was arrived at collectively by all members of

EAC and no one of the members have ever given any descenting

opinion. In such view of the matter we are unable to appreciate the

contention that the above (TOR) was issued by EAC because of the

influence of Mr. P. Abraham.

75. Be that as it may, as it is seen on the record of the

proceedings of EAC, the effective consideration of Demwe Lower

HEP 1750 MW for scoping process was started for the first time on

21st and 22nd October 2009 as stated above. This was subsequently

continued on 15th and 16th December, 2009. It was in these 3

60

meetings of EAC, a clear cut and catagoric decision on discussion

regarding the project in question was taken. When Mr. P. Abraham

has resigned much before the said date namely on 22.06.2009 as

the Chairman, we are at last to understand as to how Mr. P.

Abraham would have influenced the members of EAC. During the

above said 3 meetings, Mr. P. Abraham was neither directly nor

indirectly involved in EAC and it was Dr. Devender Pandey who was

nominated as the Chairman and continued in these 3 meetings. In

the light of the thorough study made by all EAC members in these 3

meetings as enumerated by us while discussing issue no.2, the

contention of the learned Counsel for the appellant in this regard

has to be totally rejected on the simple ground that there is no

scope for bias at all. The next question which may be relevant to

some extent may be relating to the principle that one cannot sit on

judgment over his case. As a non- executive director of PTC India

Ltd. which was to supply certain materials to the project proponent

in this case, it is not understood as to how Mr. P. Abraham can be

said to sit in judgment over his case. Admittedly he is not

connected with Demwe Lower HEP 1750 MW project and it is not

even the case of the appellant that Mr. P. Abraham has any

monitory or other interest over the project. In the absence of any

materials on record to show that Mr. P. Abraham has any interest

over the project and he has influenced the other expert members,

which in our view cannot be even remotely possible, since all

experts are eminent persons in their field, there is no doubt in our

61

mind that the presence of Mr. P. Abraham in EAC as the Chairman

would vitiate all proceedings of the EAC.

76. At the cost of repetition, we are to say that in the above said 3

critical meetings of the EAC in which the project in question was

elaborately discussed by EAC, and recommended for EC, Mr. P.

Abraham was not the Chairman or Member of EAC and therefore,

the question of bias or a person cannot sit as a Judge of his own

case does not arise. In any event as stated above that was the most

preliminary scoping stage which was liable for alteration, addition

and modification by EAC based on not only the contents of Form 1,

site visit and other materials including the presentation by the

project proponent. In fact, in this case as stated above, based on

subsequent meetings of EAC additional TOR has been issued and

therefore, if there was any mistake committed, which is not even the

case of the appellant, there was lot of scope for EAC in the

subsequent meetings to rectify. It is further relevant to note that

EAC has sent its sub-group for site visit on 21.02.2008 and in the

site visit sub-committee of EAC Mr. P. Abraham was not a party.

Mr. P. Abraham in his reply has also stated that he has no personal

interest over the project concerned and in fact he has been working

in the hydro-electric power project for nearly 30 years. As

contended by the learned Counsel appearing for the appellant there

is absolutely nothing on record to show that Mr. P. Abraham was

made to resign at the instance of the then Hon’ble Minister of

Environment and Forests especially when it is the case of Mr. P.

Abraham that he voluntarily quit the post.

62

77. Further, even after the detailed EAC study, which was only a

recommendary body, it is ultimately the MoEF which is to issue the

EC which has in fact issued the EC on independent application of

mind and there is absolutely no scope to hold that views of Mr. P.

Abraham even if it is intentionally favourable to the project in

question would influenced the Government of India, when it is the

case of the learned Counsel appearing for the appellant himself that

the Hon’ble Minister himself wanted Mr. P. Abraham to go out of

EAC, which averment in fact is not supported by any acceptable

evidence. But then, in fact the same Hon’ble Minister of

Environment and Forest later approved the project for grant of EC

for the same.

78. Even otherwise, this Tribunal which is consisting of expert

members who have gone through the entire case relating to the

various proceedings of the EAC and granting of EC and applied their

technical mind and concluded that there is no flaw either in the

project or in the proceedings of the EAC or EC.

79. For all the above said reasons, we answer issue no, 1 against

the appellant and hold that the presence of Mr. P. Abraham has no

tendency of vitiating the EAC proceedings and consequently EC

issued by the MoEF.

80. Issue No. 3

3) Whether EAC has considered all the issues relating to

(i) The effect of the project on the cultural heritage of

Parshuram Kund?

(ii) Appraisal proceedings done as per the EIA Notification?

63

(iii) Delinking of the basin study from the EC and its effect?

(iv) Effect of peaking operations of the project?

(v) Effect on Biodiversity including the effect on Dibru-

Saikhowa National Park?

(vi) Cumulative impact study? And

(vii) Muck disposal and suggested sufficient safeguards.

The next important issue that arises for our consideration is as to

whether the EAC has considered the underlined 7 points in detail

and applied its mind and that application of mind is technically

feasible. This is relevant because if this Tribunal is satisfied that

that EAC being a statutory authority has applied its mind which

also consists of Expert Members, the Tribunal performing Judicial

function can always take a complete decision by itself.

81. The first and foremost point in this regard relates to the affect

of the project on the cultural heritage of Parasuram Kund. This

point can be clubbed with the 7th point in the said category namely

“muck disposal whether suggested sufficient safeguards.

82. While speaking about the history of the mountainous and

multitribal north-east frontier region called Arunachal Pradesh and

its tradition and mythology and while observing that it has a long

international border with Bhutan, China and Burma now called

Myanmar and also observing that the Tribals of North Eastern

States are historically protected, the Hon’ble Apex Court in State of

Arunachal Pradesh Vs Khudiram Chakma reported in 1994 supp.

(1SCC) 615, referring to Parasuram Kund observed as follows:

64

“41. The history of the mountainous and multitribal

north-east frontier region which is now known as

Arunachal Pradesh ascends for hundreds of years

into the mists of tradition and mythology. According

to Puranic legend, Rukmini, the daughter of King

Bhishmak, was carried away on the eve of her

marriage by Lord Krishna himself. The ruins of the

fort at Bhalukpung are claimed by the Akas as

original home of their ancestor Bhaluka, the

grandson of Bana Raja, who was defeated by Lord

Krishna at Tezpur (Assamuy). A Kalita King,

Ramachandra, driven from his Kingdom in the

plains of Assam, fled to the Dafla (now Nishang)

foothills and established there his capital of

Mayapore, which is identified with the ruins on the

Ita hill. A place of great sanctity in the beautiful

lower reaches of the Lohit River, the Brahmakund,

where Parasuram opened a passage through the

hills with a single blow of his mighty axe, still

attracts the Hindu pilgrims from all over the

country”.

83. Mr. Ritwick Dutta contends that in as much as Parasuram

Kund has got an aesthetic value on the religious point of view,

while approving any project which is likely to affect its sanctity

should be carefully considered while deciding about the effects

of such project on the said Kund. According to him this has

65

not been considered as per the requirement. It is not in

dispute that during the auspicious days of Makar Sakranti,

for a period of 10 days before and after, Hindu devotees visit

the Parasuram temple situated nearly 100 ms away from

Parasuram Kund and large number of people take sacred bath

in Parasuram Kund before climbing up to Parasuram temple

and the Hanuman Temple situated adjacent to that. Therefore

it is clear that Parasuram Kund is a place in the running

water where devotees take their sacred bath before reaching

the temple. Admittedly it is not the temple which is affected

by the project but even according to the appellant it is the

running water called Parasuram Kund which may be affected

either by the unregulated flow of water due to the project or by

accumulation of muck either during the time when the project

construction is on or subsequently. On the other hand it is

the contention of the learned Counsel for the project

proponent which is also not in the much dispute that

Parasuram Kund is located 100 ms along the river from dam

site of Demwe Lower HE Project and the temple is located on

the Hill on the left Bank river about 100m high from river bed.

On a reference to the 31st meeting of the EAC held on 21st and

22nd October, 2009 it is clear that the EAC has taken note of

the objection raised to the above said effect and it was ensured

from the developer that continuous flow of water will be

maintained downstream through a separate diversion channel

of 6m dia and during the operation period, continuous water

66

will be released downstream through a separate 40 MW

installed unit which shall run 24 hours continuously to

release 35 cumecs of water downstream to maintain the needs

at Parasuram Kund. It is also informed that during the time

of bridge construction by which traffic is regulated heavy

machinery was used apart from huge blasting operations and

that had no impact on the Kund. It was also informed that

regarding the impact of flow variations from 35 cumecs to

1729 cumecs especially during the month of January when

the normal flow is stated to be around 400 cumecs, a flow

regulation with the project would take place and during the

said month of January when Parasuram Kund Mela takes

place, 1 unit of 342 MW will be operated as determined.

84. It is stated by the project proponent that regarding the

tourism at Parasuram Kund even though as on date there is

no major infrastructure, provisions are being made for

developing infrastructure, sewage/ sanitations facilities,

marketing complex, shelter, recreation areas with a provision

of Rs. 2 Crores. It is seen in the minutes of the said meeting

that the amount of Rs. 2 Crores would be enhanced to 10

Crores which was agreed by the developer which amount is

directed to be used to ensure that no adverse impact takes

place during the construction and operation stage. It was also

directed by the EAC that during Mela period the release of

water must be regulated. Regarding the sedimentation and

silt flushing which includes the muck formation, it was

67

informed that regarding the periodic reservoirs flushing,

CEA/CWC has set certain guidelines and that the reservoir

operation and all necessary precautions shall be taken and

the reservoir be maintained at the MDDL during the period of

monsoon. This was again considered by the EAC in its

meeting held on 16.11.2009. It was confirmed that a warning

system to be installed at Parasuram Kund, that there shall be

no damage to the water body; Hill-Flora-Fauna, that there

shall be no encroachment in the entire temple area, that

efforts to beautify and develop the area should be taken up

and that the availability of water to the devotees should not be

hampered. The EAC has also taken note of the commitment

made by the project proponent to implement the conformation

of the SPCB. Therefore, it is clear that sufficient safeguard has

been taken for preserving Parasuram Kund and its water flow

that has been duly considered by the EAC on its application of

mind.

85. In the impugned EC also the MoEF while imposing

specific conditions has clearly specified in Clause 17 and 18

as follows:

“(xvii) The project will release normal lean season

flow for a period of 7 days during mela (Sankranti)

period in Parsuram Kund, in the month of January

as per the condition stipulated by the Parashuram

Kund Improvement Society.

68

(xviii) The financial allocation for the protection of

the Parasuram Kund should be enhanced from Rs.

2 crores to about Rs. 10 crores as suggested by the

EAC. The said amount would be utilized for

creating appropriate amenities infrastructure,

structures and safeguards etc. as decided by

Parasuram Kund Improvement Society who are

looking after the developmental activities related to

the Parasuram Kund”.

In such view of the matter we are of the considered view that

the said two aspects of preserving Parasuram Kund and proper

muck disposal have not only been considered but answered

properly and therefore we are of the view that the effect of

Demwe Lower HEP 1750 MW does not effect the cultural

heritage of Parasuram Kund and sufficient safeguards has been

taken up for an effective muck disposal.

86. Regarding the point as to whether the appraisal

proceedings have been done as per EIA Notification 2006, as it

is seen in Cluase7 stage IV, the EAC has not only taken note

of the undertaking given by the project proponent but also

studied the outcome of public consultation and in fact as

stated earlier, at least in three meetings, the EAC has

considered not only the contents of the proposal in Form 1 but

also all other aspects which are required as per EIA

Notification 2006, and Appendix V which prescribes the

procedure for appraisal and ultimately recommended the

69

issuance of EC to the project proponent. There is absolutely

no procedural flaw in the appraisal proceedings and therefore

one cannot come to a conclusion that appraisal regarding

Demwe Lower HEP is not in accordance with the EIA

Notification 2006.

87. As far as the decision regarding delinking of basin study from

EC and its effects, it is the contention of the learned Counsel

appearing for the appellant that the condition in the impugned

EC which states in Clause no. 16 as follows:

“(xvi) The project since falls in Lohit Basin and at present

the Basin Studies is ongoing and it was stipulated

during the grant of TOR for scoping that the

Environmental Clearance for Demwe Lower HEP

should not be linked with the completion of basin

studies. However, any recommendations that

emerge out from the basin studies shall be a binding

on the project developer in future”, makes it clear

that as the Lohit Basin Study is ongoing, the same

need not be linked with the issuance of EC. It is his

contention that the said condition is abnormal

specially when it also states that any

recommendations that emerge out from the basin

study after completion will bind the project

developer in future has no meaning because by that

time the project would have come into effect.

70

According to him it is putting the cart before the

horse”.

88. On the other hand it is the case of the project proponent

as well as the MoEF that the delinking of Lohit basin study

from the projects have been done in similar cases like Kalai-II

HEP for TOR, Hutong II HEP 1250 MW in Anjaw district,

Anjaw HEP 280 MW, Raigam HEP 96 MW on Dalai river in

Anjaw district and Gimliang HEP 99 MW on Dav river in

Anjaw district. It is also their case that delinking process for

grant of environmental clearance to the projects from

completion of the river basin study is a well practised

procedure and the same has been followed by EAC on earlier

occasion in respect of EC granted for Gongri HEP 90 MW,

Nafra HEP 96 MW, Divvin HEP 125 MW which were granted in

the year 2010 and 2011 and that the basin study which was

allotted in 2008 was completed in July 2011. Likewise EC

was granted in respect of Teesta Stage VI HEP 500 MW, Teesta

Stage III HEP 1200 MW, Roler HEP 36 MW, Jorethang, Loop

HEP 96 MW in the year 2004 to 2007 while the basin study

was completed in the year November, 2007. It is also stated

that in respect of TATO and HEP 700 MW, EC was granted on

27.06.2011 while the Siang basin study which was allotted on

23.12.2010 is still in progress. Likewise it is pointed out that

EC was granted on 19th May, 2011 regarding Sangtong,

Karchham HEP 402 MW while its Sutlej basin study was

allotted on 26.02.2011 which is still pending. It is also

71

pointed out that EC in respect of Selisep 400 MW was granted

on 02.06.2012 while the Chenab Basin Study was directed to

be continued. In addition to that many other instances have

also been pointed out wherein while river basin study are

going on, they were delinked from EC proceeding.

89. The report of inter ministerial group prepared by the

Government of India 2010 to evolve a suitable framework to

guide and accelerate the development of hydro power in North

Eastern Region has categorically decided that studies in the

Basin should be taken up by CWC but that will not hold up

the EC of individual projects. In as much as it is not in

dispute that in respect of many other projects it has been the

practice that regarding the hydro electric power projects, the

pendency of river basin study cannot be an impediment for

granting EC we cannot presume that the EC proceedings will

be vitiated by the delinking process. In fact sufficient

safeguard has been provided in the EC specifically stating that

any result of river basin study should be binding upon the

project proponent.

90. In respect of the effect of peaking operation, a reference to the

data analysis taken for 19 years regarding the flow in Lohit

river shows that the said river is well acquainted with flow

variability ranging from 200 cumecs to more than 12000

cumecs. It is also seen that more than 54 per cent times the

flow in Lohit River at Dam site is more than 1000 cumecs out

of which about 33.23 per cent time flow is about 1729 cumecs

72

which is the designed discharge of Demwe Lower HEP. It is

also seen that even during non monsoon months of December,

January and February the river rejoin experience large

discharge varying in the range from ranging from minimum of

1010 cumecs to 1373 cumecs and during monsoon season,

the same will be operated at MDDL by keeping the natural

flow regime since no storage is allowed. During lean season

the flow at dam site will vary between environmental flow

release and design discharge from power generations. It is

stated that to minimise the impacts of downstream

ecologically, detail assessment of environmental flow release is

carried out by M/s WEAPCOS as part of Lohit Basin study

and the same has been considered by the Expert Appraisal

Committee as also the MoEF. In such circumstances we have

to necessarily come to a conclusion that the effect of peaking

operations of the projects has been thoroughly considered by

the EAC. Regarding study of effect on biodiversity including

Dibro-Saikhowa National Park, it is clear from the records

that as the Government of India has been implementing the

National Wetlands Conservation Programmes (NWCP), and as

per the guidelines for conservation and management of

wetlands in India prepared in June 26, 2009 the Government

has identified nearly 15 wetlands and there are no wetlands

from the State of Arunachal Pradesh, except 3 namely Depar

Beel, Urpad Beel and Sone Beel which are located about 501

km, 557 km and 529 km respectively from Demwe Lower

73

Project. It is also clear that chapories of Lohit River have not

been identified as wetlands of national importance. The

chapories of Lohit river stated by the appellants relying upon

BMHS publication is stated to be located about 33 km away

downstream from the project site. The chapories are the

elevated regions provide retreat and shelter for animals during

flood. A study made by a three Member Committee

constituted by the National Environment Appellate Authority

covering 60 kms of river stretch from the dam site of Demwe

Lower HEP in Assam/ Arunachal Pradesh Boarder, found that

no endangered bird species including Bengal Floricam were

recorded by the Committee.

91. To study the variation between design discharge of 1729

m 3/s and average river discharge of 400 m 3/s, four

representative cross sections at the identified chapories were

taken and variation in water level was assessed by the

Committee which shows that maximum water elevation in all

4 locations remain well below the lowest elevation of

representative chapories. The project being run of the river

scheme is not likely to retain the inflow and

sediment/silt/boulders/nutrients etc and during monsoon,

river flow would be released normally and it was found during

the field visit that none of the Avian/ fauna / species were

encountered and their presence in area was also negated by

the local communities. Regarding the river dolphins it was

found as seen in the GOAP Committee that dolphin were

74

recorded only in Brahmaputra main stream. However, during

low water period, the upstream limit of dolphin distribution in

the river Lohit is Tengapanimukh which is stated to be located

about 72 km downstream along the river from Demwe Lower

HEP. Therefore it was found that the likelihood of the

presence of dolphins in the upstream of Tengapanimukh

during dry season is negligible. It is found to be not an ideal

condition for habitat of dolphins owing to limitations of low

depth. There has been interaction with local communities

including fisherman by the committee who conformed the non

availability of dolphins in the downstream dam. Regarding the

globally threatened avian species stated to have been situated

in chapories like Bengal Florican, Swam Francolin, Lesser

Adjutant, white beak Duck, Jerdom’s Babbler, Indian

Skimmer and Black- breasted Parrot Bill, the same are not

regularly found and the impact of the project was found to be

negative. Therefore the EAC has considered the downstream

impacts including those on the habitat of Bengal Florican and

MoEF is stated to be taking steps for conservation and

preservation of the said species in the entire country.

92. Relating to the downstream flow characteristics, the

studies show various data’s taken of 95% dependable year to

consider the worst case. Catchment area proportion method

was used for working out contribution of each tributary on 10

daily basis in the downstream stretches.

75

93. Regarding the impact on Dibru-Saikhowa National Park

(DSNP), it is seen from the minutes of EAC that it was at its

direction and as part of Lohit Basin studies the flow variations

at Dibru-Saikhowa was undertaken by M/s WAPCOS which

has filed its report to MoEF and it was stated that the National

Park is situated about 105 km downstream of the project. It is

also stated in the report that the flow in lean season at Dibru-

Saikhowa National Park in Lohit River varies between 400-700

cumec while the maximum discharge of peaking of Demwe

Lower would be at 500 cumec at National Park which is well

within the range of natural flow. The report thus concluded

that there is no other effect on non monsoon peaking

operation, as the submergence level at all times remain below

the lowest elevation of the park. All these facts have been

thoroughly considered by the EAC as it is seen in the minutes

of its three meetings.

94. The last point under the above topic is as to whether the

EAC has considered the cumulative impact study. The

meeting of EAC dated 21st, 22nd October, 2009 has taken

note of the entire cumulative aspect ranging from vast and

various states of divergent subjects including the minimum

flow and fishery aspects. As the area is highly seismic zone

the geological and seismological studies were carried out at

DPR studies apart from the social aspects and R&R plans

including the preservation of religious sanctity of Parasuram

Kund was duly considered and cumulative study in the form

76

of River Basin Studies which are going on, the Tribunal see

absolutely no reason to hold otherwise. The minutes of the

meeting of the EAC held on the said three occasions are the

standing testimony to show that there has been total

application of mind. Therefore, the issues raised in point no.

3 are all answered in favour of the project proponent.

95. Issue No. 4

Whether public consultation process has been done properly

and in accordance with the EIA Notification 2006.

The EIA Notification 2006 in Clause 7 stage number 3

explains the public consultation and it is stated to be a

process by which the concerns of local affected persons and

others, who have plausible stake in the environmental impacts

of the project are taken into account. As per the EIA

Notification 2006, the public consultation has two

components:

1) A public hearing at the site or in its close proximity as per

the manner prescribed in Appendix IV for ascertaining

concerns of local affected persons and

2) Obtain responses in writing from other concern persons

having plausible stake in the environmental aspects of the

projects.

The public hearing is conducted by the SPCB in a specified

manner and forward to the regulatory authority namely MoEF.

There is a clause which provides that in cases it is reported to the

Regulatory Authority that it is not possible to conduct public

77

hearing in which even the Regulatory Authority may decide that

the public consultation in a particular case need not include

public hearing. However, this later aspect does not arise in this

case as admittedly public hearing has taken place in two places.

After the completion of public consultation it is the duty of the

project proponent to address all the material environmental

concerns expressed during the said process and effect

appropriate changes in EIA report and submit the same to the

appropriate authority.

96. Appendix IV while contemplating the procedure for public

hearing to be conducted by the SPCB states about the notice

of public hearing stating that the same shall be advertised in

one National Daily and one Regional Vernacular Daily/ Official

State language giving 30 days minimum time to the public to

furnish their response. It also further states that the

proceedings of public hearing should be at the supervision of

the District Magistrate/District collector/Deputy

Commissioner or his representative not below the rank of an

Additional District Magistrate assisted by a representative of

SPCB who shall arrange videography of the entire proceedings

and forward the same to the Regulatory Authority. A time

limit has also been prescribed under the said appendix for

conducting public consultation.

78

97. On the facts of the present case it is not in dispute that

the following are details of notification published in the

newspaper:

Therefore it is clear that the publication of the notice about

the public hearing is more than what it is required under the

notification. It is also not in dispute that such public hearing

took place at Parasuram Kund Lohit District and Paya, Anjaw

District on 11.08.2009 and 12.08.2009 and about 519 and

237 people respectively have participated. During the public

hearing detailed written representations have been received,

19 persons from Parasuram Kund on 11.08.2009 and 7

persons at Paya on 12.08.2009. It is also stated that people

from downstream villages beyond the project area namely 10

km radius of the project attended public hearing. The said

places are stated to be Chongkham which is 53 kms, Alubari

which is 60 kms, Naupati which is 70 kms, Kathan which is

90 kms, Teesu which is 35 kms and Namsai which is 81 kms.

S.No Name of the Newspaper

Date and Language Publication Remarks

English Hindi Local (Mishmi)

1 Arunachal Times

10thJuly 09 11th July 09 10th July 09 Local Daily

2 Arunachal Front

11th July 09 11th July 09 11th July 09 Local Daily

3 Echo of Arunachal

11th July 09 11th July 09 11th July 09 Local Daily

4 Times of India

10th July 09 11th July 09 - National Daily

5 Purvanchal Prahari

- 11th July 09 - Regional Daily

6 Eastern Mail 12th July 09 12th July 09 12th July 09 Published Weekly on Sundays

79

It is also stated that a copy of EIA report, EMP report and

executive summary of the project were uploaded on the

website of SPCB and MoEF and therefore there is wide

publicity to enable plausible stake holders to effectively

participate and in fact there has been such participation. In

such circumstances we have no hesitation to hold that the

public consultation process has been done on facts of the

present case in accordance with the EIA Notification 2006.

The said issue is answered accordingly.

98. Issue No. 5

Whether the EC is liable to be held invalid.

As stated in detail, we have no doubt in our mind that there is no

suppression of any material fact by the project proponent either in

Form 1 proposal stage or subsequently, that the public consultation

process has been done in accordance with the provisions of the

EIA Notification 2006 and that the EAC which consists Experts

from various fields and who have independent status and merit

have considered in complete details on three of its meetings and in

fact called for more information and additional particulars from the

project proponent to satisfy itself as to whether the

recommendation of EAC is to be granted or not and therefore there

is a proper application of mind by the EAC. A reading of the terms

of EC impugned in this proceedings, issued by the MoEF also shows

that it is not as a matter of routine the impugned EC has been

granted but each one of the recommendations of the EAC has been

taken note of which is reflected from the special conditions

80

enumerated by the MoEF in the impugned EC. Further there was

no participation of Mr. P. Abraham during the most crucial stage of

consideration of environmental appraisal of the proposal of the

project proponent by the EAC on three of its crucial meetings held

on 21st and 22nd October, 2009, 16th November, 2009 and 15th and

16th December, 2009 and during the above said meetings Mr.

Abraham was not the chairman or Member of the EAC. Scoping

being the most initial stage, in respect of hydro electric project

which are site specific in nature except citing the area for the

project no much activities are done. Moreover, at the time of

scoping, as stated earlier the EAC has desired to make a field visit

to find out the suitability of the place during which time of course

Mr. P. Abraham was the Chairman but still the sub-committee

constituted by EAC to visit his part and submit its report does not

include the said Mr. P. Abraham. Therefore, the question of

tendency to influence or bias does not arise for consideration on the

facts and circumstances of the present case. The two contentions

mainly raised by the learned Counsel appearing for the appellants

namely in the scoping stage a foundation has been laid for the

project which cannot be altered subsequently and that public

consultation was not done properly are not acceptable at all. When

it is clear on fact that even during scoping stage there has been an

alteration of the project which was originally proposed as Demwe

Lower HEP 3000 MW for which in fact TOR was issued by EAC and

that has been subsequently changed by dividing it into two parts

when it was found that there was a possibility of submergence of a

81

national park which were on environmental concern. Moreover, the

additional TOR are being issued for the projects based on

subsequent information and clarification which are factually seen

in this case and therefore it cannot be accepted that any decision

taken in scoping stage either cannot be altered or changed by a

change in circumstance. In so far as it relates to the public

consultation on a reference to record it is clear that large number of

people have participated and the public hearing was conducted on

the spot of the project and the appellants who are stated to be living

in the downstream in Assam have been allowed to participate and

in such circumstances it is certainly not open to the appellants to

say that the public consultation was not properly done. Therefore

there is no iota of hesitation in our mind to hold that the EC

granted consequent to such a long drawn process cannot be vitiated

by the averments made by the appellants which are not correct on

the factual matrix.

99. There is one more aspect as raised by the learned Counsel

appearing for MoEF which is of utmost relevance to be considered.

The EIA Notification 2006 in Clause no. 7 (IV) while speaking about

stage 4 appraisal in sub-clause (i) states as follows.

“IV. Stage (4)-(i) Appraisal means the detail scrutiny

by the Expert Appraisal Committee or State Level

Expert Appraisal Committee of the application and

other documents like the Final EIA report, outcome of

the public consultations including public hearing

proceedings, submitted by the applicant to the

82

regulatory authority concerned for grant of

environmental clearance. This appraisal shall be

made by Expert Appraisal Committee or State Level

Expert Appraisal Committee concerned in a

transparent manner in a proceeding to which the

applicant shall be invited for furnishing necessary

clarifications in person or through an authorized

representative. On conclusion of this proceeding, the

Expert Appraisal Committee or State Level Expert

Appraisal Committee concerned shall make categorical

recommendations to the regulatory authority

concerned either for grant of prior environmental

clearance on stipulated terms and conditions, or

rejection of the application for prior environmental

clearance, together with reasons for the same”.

(Emphasis Supplied)

The EIA Notification 2006 in the above said clause also states that

the prescribed procedure for appraisal is given in Appendix V. The

said Appendix V is reproduced as follows for a better appreciation of

the contention raised by the learned Counsel appearing for MoEF:

“APPENDIX V

Procedure Prescribed for Appraisal

1. The applicant shall apply to the concerned regulatory

authority through a simple communication enclosing

the following documents where public consultations

are mandatory:-

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A copy of the video tape or CD of the public

hearing proceedings

A copy of final layout plan (20 copies)

A copy of the project feasibility report (1 copy)

2. The Final EIA Report and the other relevant documents

submitted by the applicant shall be scrutinized in

office within 30 days from the date of its receipt by the

concerned Regulatory Authority strictly with reference

to the TOR and the inadequacies noted shall be

communicated electronically or otherwise in a single

set to the Members of the EAC/SEAC enclosing a copy

each of the Final EIA Report including the public

hearing proceedings and other public responses

received along with a copy of Form 1 or Form 1-A and

scheduled date of the EAC/SEAC meeting for

considering the proposal.

3. Where a public consultation is not mandatory, the

appraisal shall be made on the basis of prescribed

application in Form 1 and environment impact

assessment report, in the case of all projects and

activities (other than Item 8 of the Schedule), except in

case where the said project and activity falls under

Category ‘B2’, and in the case of Items 8 (a) and 9(b) of

the Schedule, considering their unique project cycle,

the Expert Appraisal Committee or State Level Expert

Appraisal Committee concerned shall appraise projects

84

or activities on the basis of Form 1, Form 1-A,

conceptual plan and the environment impact

assessment report (required only projects listed 8(b)

and make recommendations on the project regarding

grant of environment clearance or otherwise and also

stipulate the conditions for environmental clearance).

4. Every application shall be placed before the

EAC/SEAC and its appraisal completed within 60

days of its receipt with requisite documents/details in

the prescribed manner.

5. The applicant shall be informed at least 15 (fifteen) days

prior to the scheduled date of the EAC/SEAC meeting for

considering the project proposal.

6. The minutes of the EAC/SEAC meeting shall be

finalised within 5 working days of the meeting and

displayed on the website of the concerned regulatory

authority. In case the project or activity is

recommended for grant of EC, then the minutes shall

clearly list out the specific environmental safeguards

and conditions. In case the recommendations are for

rejection, the reasons for the same shall also be

explicitly stated.

(Emphasis Supplied)

100. The contention of Mr. Vivek Chib the learned Counsel

appearing for MoEF is that a combined reading of Clause 7

(IV) stage (4)/ appraisal (i) along with Appendix V especially

85

clause 6 of the said appendix, emphatically shows that in

cases of recommendation of the project and grant of EC by

MoEF or SEIAA, it is duty of the Authority to stipulate clear

terms and conditions based on the recommendations made by

EAC or SEAC as the case may be as that itself would amount

to reasons, and in cases where the MoEF rejects the grant of

EC it is incumbent on the part of the regularity authority to

give reasons explicitly. Otherwise it is his contention that as

per the statutory regulation, except imposing conditions to

safeguard environment either specifically or generally there is

no necessity on the part of regulatory authority to give any

other reason for every aspect of recommendations of EAC but

it is only in the cases of rejection of the proposal the reasons

must be given by MoEF whether it is rejecting the

recommendation of the EAC or otherwise.

101. It is no doubt true that when a proposal is recommended

or rejected, in a common parlance , in order to comply with the

principles of natural justice, assigning of reasons is a healthy

practise. But in cases where statute enumerates a particular

method, necessarily the said statutory method/stipulation ought to

be followed. The Tribunal being a creature of law cannot in our

considered view direct the parties to act against the statutory

regulations even in the guise of enforcing the principles of natural

justice. For taking the view that only in cases of rejection of EC the

regulatory authority has to give reason but for granting prior EC

except stipulating special and general conditions enforcing

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environmental safeguard, there is a plausible reason. In case of

rejection the project proponent has a statutory right of appeal. For

filing appeal necessarily the affected person must know the reason

for such rejection. Therefore on a combined reading of the above

said provisions enumerated above we are of the view that in case of

grant of EC no specific reasons are necessarily to be assigned by

the regulatory authority which of course is a mandatory

requirement in case of rejection. To put it otherwise, it appears to

be the legislative intent that when EC is granted for a project it is

the utmost concern of the regulatory authority to preserve

environmental safeguard and if it is rejected, reasons are necessary

to be given explicitly to satisfy the concern of the affected project

proponent to enable him to exercise his right of appeal effectively.

102. Further there is no question of applicability of general

principles of administrative law when statute expressly explains

certain provision.

103. This was also the view of the Hon’ble Central Zonal Bench

of the NGT at Bhopal in Appeal no. 8 of 2013 (Ramesh Agrawal Vs

Union of India through MoEF and Ors.) (CZB), wherein under similar

circumstances the Tribunal has held that when the law prescribes a

specific provision of format on a special subject, the same has to be

followed and one cannot infuse the general principles of law. The

relevant paragraph of the Judgment are as follows :

“28. Lastly, it has been submitted by the Appellant

that the EAC ought to have given reasons for

acceptance or rejection. We find from the material on

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record that at several stages of the appraisal various

queries were raised and further information was

sought from the Project Proponent. This is evident from

the Minutes of the Meetings of the EAC. After each

such meeting the NTPC has submitted its response

with supporting material and documents which came

to be placed before the EAC in the subsequent

meetings where it is recorded that various material

received from the Project Proponent was placed before

the members for consideration and on having

considered the same the Committee was satisfied and

recommended that the EC may be granted.

29. Learned Counsel argued at length that this was

not in accordance with the law as laid down in various

judgements regarding appreciation of the material, it

consideration and requirement to give reasons. We

have given out thoughtful consideration to the above

submission and the judgements relied upon by the

Learned Counsel for the Appellant. While there can be

no quarrel with the general proposition of recording the

facts and circumstances of the present case, the

procedure for appraisal has been prescribed under the

Environment Clearance Regulations, 2006 itself in

detail along with the format prescribed under

Appendix V in which the order is required to be

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passed. Unfortunately, in the cases cited before us

this aspect has not at all been cited.

30. The procedure as provided and prescribed under

the Environment Clearance Regulations, 2006 is as

follows:

“7. Stages in the Prior Environmental Clearance (EC)

Process for New Projects.

APPENDIX –V (Already enumerated above)

31. The Scheme of appraisal quoted above clearly goes

to show that under para IV Stage (4) Sub para (i) while

carrying out appraisal the Expert may seek to clarify

any doubts by inviting the Project Proponent if any

clarification is required. The necessity is only in the

event of any doubts requiring clarification from the

Project Proponent and not any other person. On

conclusion of these proceedings the EAC or SEAC

concerned shall make their recommendations to the

regulatory authority either for grant of prior EC on

terms and conditions or for rejection of the application

for prior EC. In our view the words “together with

reasons for the same” only refer to reasons for

rejection. This is clear from a perusal of sub-para (iii)

of Para IV. Stage (4) under which it is provided that

“the prescribed procedure for appraisal is given in

Appendix V”. A perusal of Appendix V para 6 quoted

above only requires that in the case of favourable

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recommendation for grant of EC “the minutes shall

clearly list out the specific environmental safeguards

and conditions” as opposed to giving any reason for

acceptance of the application. It further provides that it

is only “in case the recommendations are for rejection,

the reasons for the same shall also be explicitly

stated. Unfortunately while deciding some of the cases

the above statutory provision and requirement of

giving reasons only in the case of rejection as opposed

to reasons for giving a favourable recommendation

with specific environmental safeguards and

conditions, was not cited and thus the judgements

came to be delivered on the basis of general principles

of administrative law. When there is a specific

provision and a format is prescribed under the law

dealing the special subject the special law shall

override the general law and no fault can be found if

the recommendations for grant of EC by the EAC in

favour of the Project Proponent when made without

elaborating the same in the order for acceptance. The

law has taken care to provide remedy to any person

aggrieved in the form of filing an appeal against the

grant of EC which the Appellant has done in the

present case and on a consideration of the issues

raised in the appeal, we do not find any substance in

any of the objections raised before us so as to warrant

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interference even assuming the reasons ought to have

been recorded for the benefit of any objector or

member of general public”.

104. While subscribing to the views of the CZB of NGT, Bhopal

as narrated above, we do not subscribe to the views expressed by

the WZB Pune of NGT in this regard as relied upon by the learned

Counsel for the appellant in Gau Raxa Hitraxak Manch and Gauchar

Paryavaran Pouchav Trust, Rjula Vs. Union of India in M.A. No.

94/2014 (WZ) in Appeal No. 16/2014 (WZ). In that case a reference

to the consent order made in M.A. shows that the parties have

accepted that EAC or MoEF shall pass (speaking orders) giving

reasons either for recommendation/non- recommendation of

approval or rejection. Apart from the fact that this is a consent

order passed in M.A. there is no discussion about either clause 7

(IV) and Appendix (V) together and the said order cannot be treated

as laying down a law. In any event, one cannot give a go bye to the

statutory provisions in the guise of entering consent or agreement.

Therefore we disagree with respect, to the views of the WZB, Pune

and totally agree with the elaborate order of the Hon’ble NGT Bench

of CZB, Bhopal. For all the reasons stated above and looking from

any angle we are unable to take a stand that the impugned EC

granted to the project proponent is liable to be held invalid.

Accordingly we hold that the EC granted to the project proponent

dated 10.02.2010 for Demwe Lower HEP 1750 MW project in Lohit

District of Arunachal Pradesh is perfectly valid in law and is in

accordance with the provisions of EIA Notification 2006.

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Consequently the Appeal is devoid of any merits and liable to be

dismissed and accordingly dismissed, however without any order as

to cost.

105. While, parting with, we make it clear that all the special and

general conditions stipulated in the EC shall be scrupulously

followed by the project proponent and the same has to be properly

monitored by both the regulatory authority and the State Pollution

Control Board, We also reiterate that the project proponent must

take all necessary steps to see that the existing nature of

Parasuram Kund, including its water flow, especially during Mela

season shall be maintained and all agreed developments in and

around the Kund shall be carried out and the entire area is

maintained with serene atmosphere. Further, the River Basin

Study shall be completed expeditiously and any

recommendations/decisions arrived at therein shall be directed to

be strictly followed by the project proponent. The minimum

environmental flow in respect of Demwe Lower HEP as stated in the

studies of EIA/EMP, on the downstream discharges shall be

maintained for the survival of the fish species and all aquatic life.

Experience is the best teacher and therefore, we should not refuse

to learn from our experience of running HEP in the given situation.

We, therefore, direct the MoEF and Arunachal Pradesh State

Pollution Control Board to undertake study of impacts of the project

on the environment including flora and fauna downstream Lohit

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River till 2020 for a period of next 5 years at the cost of the project

proponent namely respondent no.3.

Delhi

Dated:13th January, 2015.

………….…………….……………., JM

(Justice Dr. P. Jyothimani)

………….…………….……………., JM

(Justice U.D. Salvi)

………….…………….……………., EM

(Dr. G.K. Pandey)

………….…………….……………., EM

(Ranjan Chatterjee)