By Rohit Prajapati and Lakhan Musafir*
In our case against Garudeshwar Weir (being set up about 12 km downstream of the Sardar Sarovar Dam in Narmada river) in the National Green Tribunal (NGT), the Ministry of Environment and Forests (MoEF), has said, “… no project proposal regarding Garudeshwar Weir at Garudeshwar village, District Narmada of Gujarat, has been received in this Ministry.” The Sardar Sarovar Narmada Nigam Ltd (SSNNL) has said, its affidavit is only for “the limited purpose”, it is “not dealing with the application parawise”, nor it is “giving elaborate details which would show that construction of Garudeshwar Weir is strictly in conformity with law.” It is now clear: the SSNNL has no documents to show and prove that the construction of Garudeshwar Weir is going on as per the law.
In their replies the MoEF, the Narmada Control Authority (NCA) and the SSNNL do not deny our contention that:
- There has never been an environment and social impact assessment of the Garudeshwar weir, nor is there any environment and social management plan,
- There has never been any public consultation on the issue of Garudeshwar Dam, and
- The Garudeshwar Dam requires statutory clearances from the Environment Sub Group, Rehabilitation Sub Group of the NCA and also the NCA itself, but such clearances have not been taken.
In view of this, as mentioned in our petition, the work on Garudeshwar Dam, now going on, is illegal and should immediately stop till all necessary statutory clearances are taken, and till informed consultation process is completed.
MoEF wants to be excused
The MoEF, in its reply filed before the NGT on May 29, 2014, in response to our Application No 10/2014 (WZ) stated, “No project proposal regarding Garudeshwar Weir at Garudeshwar Village, District Narmada of Gujarat has been received in this Ministry.” It has become clear that at no point of time the construction of Garudeshwar Weir had come before it for environmental clearance.
The MoEF implicitly agrees with our contention that the Garudeshwar Dam is a project for which no impact assessment was available before it at any stage. This implies that the affected villages, next to the weir, were neither surveyed, nor environmental and social impact was made known, nor were mitigation and management plans prepared, nor were there any consultations. The impact assessment of Garudeshwar Dam was not part of the studies submitted by Gujarat to the MoEF before the 1987 environmental clearance of the Sardar Sarovar Project (SSP). Thus, environmental clearance for SSP cannot be construed as clearance for Garudeshwar Weir.
The MoEF is not denying the contents of letter dated March 24, 2013 written by Shekhar Singh, an independent member of environment sub-group of the NCA (the statutory body responsible for clearance before taking up construction for the SSP at every stage), and the letters dated October 26 and 28, 2013 of the Paryavaran Suraksha Samiti and villagers. The MoEF only states in its affidavit, “…copies of the letter dated 24.3.2013 by Mr. Shekhar Singh, Member, ESG, Narmada Control Authority and letter dated 26.10.2013 by Applicants could not be traced in the Ministry. Therefore, no responses were made on the subject.”
The Supreme Court order dated October 18, 2000 in the case of Narmada Bachao Andolan v/s Union of India and others states that environment clearance for the Narmada project, approval of the environment sub-group (ESG) and rehabilitation & resettlement sub-group (RSG) of the NCA are necessary at each stage of project construction. Without such explicit approval, the construction of any component of the project cannot be taken up. Since construction of Garudeshwar Weir has not been approved by the ESG and RSG of the NCA at any stage, such construction is illegal and should be stopped.
The MoEF in its affidavit at the end states, “As per contents of the petition, MoEF is not having any role to play in the present petition. Therefore, MoEF may not be made a party in the present Petition.”
But MoEF is an environmental regulator of India, which is responsible for the protection of environment and forest in general, and the secretary, MoEF, is also a chairman of the ESG of NCA. The MoEF cannot shirk its responsibility and it is shocking to see MoEF shirking its responsibility.
NCA’s untenable reply
The executive engineer of the NCA filed a reply on behalf of the chairman of the environment and rehabilitation sub-groups of the NCA, the chairman of the NCA, secretary of the Ministry of Social Justice and Empowerment, and also secretary of the Ministry of Water Resources! This is clearly a legally untenable act. The executive engineer of the NCA does not have legal authority and mandate to file joint reply on behalf of these bodies, which have very specific and different roles. Clubbing them in one reply is not only violation of the cause of environment, rehabilitation, water resources development and independent and statutory groups and authorities; it would do disservice to the interests these authorities and ministries are supposed to protect. The affidavit is also in violation of the basic principle of judicial process and hence should be rejected.
The reply is nowhere disputing our contention that social or environmental impact assessment of the construction of Garudeshwar Weir has not been taken up at any stage. Nor is the reply disputing our contention that no participatory decision making process has been followed before starting the construction of the Garudeshwar Weir, involving the affected people and other interest groups.
The reply is also not disputing our contention that at no stage the permissions of the environment sub-group, rehabilitation sub-group, and participating states have been taken for the construction of the Garudeshwar Weir.
In fact the reply is so callous that it does not even bother to state what the impact of the Garudeshwar Dam would be. The reply does not go into merits of the issues about the impact of the Garudeshwar Dam and what has been done about that. It only contends that the application should be dismissed on procedural grounds, and just to contend this, it has taken more than four months, which is clearly an abuse of the time given to it.
If indeed any social and environmental impact assessment of the Garudeshwar Dam has been done, or the authorities have taken and/or expressed and specific permission of the environment and rehabilitation sub-groups of the NCA and the NCA, then this should have been produced. Taking up construction of the Garudeshwar Weir is in violation of the due process, including that of the Supreme Court order.
The SSNNL reply
The reply filed by the SSNNL after taking more than four months is vague; it has tried its best to avoid addressing the basic crucial issue of the furnishing the mandated environmental impact assessment and environment clearance of Garudeshwar Weir.
The SSNNL representative in the reply states “… I am filing this affidavit only for the limited purpose as aforesaid, I am not dealing with the application parawise at this stage nor am I giving elaborate details which would show that construction of Garudeshwar Weir is strictly in conformity with law.” By stating “… nor am I giving elaborate details which would show that construction of Garudeshwar Weir is strictly in conformity with law”, the SSNNL reply makes it crystal clear that it does not have documents to show and prove that the construction of Garudeshwar Weir is going on as per law. It also does not have documents to show that it obtained the necessary environment clearance from the concerned authority.
The SSNNL in its reply further states, “At the outset, I beg to raise the following preliminary objections as regards the maintainability of the present application under the National Green Tribunal Act, 2010 which is purported to have been filed under Section 18(1) read with Section 14 and 15 of the National Green Tribunal Act, 2010. I respectfully pray that the below mentioned preliminary objections be decided first.” This is a ploy adopted by the SSNNL to delay the case and continue with the illegal construction work to defeat the process of justice.
We had filed our affidavits in rejoinder, in response to all the affidavits filed by the authorities, and raised above-mentioned issues in our affidavits, and demanded stoppage of irreversible nature of work carried out by the SSNNL for Garudeshwar Weir. Considering that none of the concerned authorities have been able to produce either impact assessment or environment clearance obtained from the MoEF and from the environment and R&R sub-groups of the NCA, the NGT should immediately order stoppage of work.
*Representing Paryavaran Suraksha Samiti, Vadodara, which has filed a petition in the National Green Tribunal to immediately stop work the Garudeshwar Weir, 12 km off Sardar Sarovar dam