1 BEFORE THE HON'BLE NATIONAL GREEN TRIBUNAL AT NEW DELHI ·. APPEAL NO:_.,.,.._ OF·2017 IN, THEI MATTERi !4 ;.,. OF:, HIMANSHU THAKKAR. ... APPELLANTS VERSUS UNION OF INDIA & ORS. .... RESPONDENTS INDEX VOLUME -I s. NO. PARTICULARS PAGE NO. 1 Memorandum of Appeal along · with Affidavit and Vakalatnama 2_ - s-::}.. 2 ANNEXURE A-1 A copy of the impugned Environmental Clearance 5? ,.- 6l, letter dated 28.7.2017 THROUGH RITWICK DUTTA RAHUL CHOUDHARY MEERA GOPAL COUNSEL FOR THE APPELLANTS N-71, Lower Ground Floor, Greater Kailash-1, New Delhi- 110048 Mobile No.: 9810044660 · Email:[email protected] NEW DELHI:- DATED:- 08.08.2017 2 BEFORE THE HON'BLE NATIONAL GREEN TRIBUNAL SITTING AT NEW DELHI APPEAL NO: .............,._ OF 2017 (Under Section 16 (h) of the National Green Tribunal Act, 2010) IN THE MATTER OF: . ; '"4 c '· 1. HIMANSHU THAKKAR Aged about 56, S/o Jethalal Thacker R/o 86-D, AD block, Shalimar Bagh, New Delhi 110088 ... VERSUS 1. UNION OF INDIA Through the Secretary, Ministry of Environi'Dent, Forests and Climate Change ParyavaranBhawan, Lodhi Road · New Delhi-110003 2. NATIONAL WATER DEVELOPMENT AGENCY Through the Director General 18-20, Community Centre, Saket, New 110017 3. STATE OF MADHYA PRADESH Through the Chief Secretary, Mantralaya, Bhopal462 003, Madhya Pradesh . 4. STATE OF UTTAR PRADESH Through the Chief 1st Floor, Room No. 110, LalbahadurSastriBhawan, Secretariat, LUCKNOW- 226 001 3 RESPECJfULLY $,HQWETH: I. The address· of the Appellants' counsels is given below for the service of nQtices of this AppeaL II. The addresses of the Respondents are given above for the service of notices of this Appeal. III. That the present Appeal is being filed before this Hon'ble Tribunal challenging the Environmental Clearance dated 25.08.2017 (hereinafter referred to as· the "impugned. Environmental Clearance'') granted by the Ministry of Environment, Forest and Climate Change to the National Water Development Agency (hereinafter referred to as the "Project Proponent'') for the Phase I of the Ken Betwa River Link Project in Panna, Tikamgarhand Chhatarpur District of Madhya Pradesh and Jhansi, Mahoba and Banda districts of Uttar Pradesh. A copy of the impugned Environmental Clearance letter dated 25.08.2017 is annexed herewith as ANNEXURE A-1 FACTS IN BRIEF:- 1. That the Appellant is a concerned citizen and has been working on issues concerning the environment. He is an enginnering graduate from Indian Institute of Technology (liT), Mumbai. He is the Coordinator of South Asia Network on Dams, Rivers & People a11d has ' been involved in issues related to water resources in India for more than 25 years. He has made representations with respect to the environmental ·impact of the project to the Ministry of Environment, . Forest and Climate Change as well the various expert committees and Statutory 2. That the Respondent No. lis the Ministry of Environment, Forests and Climate Change which is. the nodal agency to grant environmental 4 clearance t.Jnder the provisions Qf the Environment Impact Notification, 2006 .. The . Respondent . No. 2 is the National Water Development Agency (NDWA) which has. been up with the objective of carrying Ol,lt the water balance and other studies on a scientific and realistic basis for optimum utilisation of Water Resources of the Peninsular rivers system for preparation of feasibility reports and thus to give concrete· shape to . Peninsular Rivers Development Component of National Perspective, and is the project proponent in the instant Appeal. That Respondent No. 3 and 4 are the State of Madhya Pradesh and State of Uttar Pradesh wherein the affected districts are situated. 3. That the present Appeal is being filed under Section 16 of the National Green Tribunal. Act, 2010, challenging the Environmental Clearance 25.08.2017 granted by the Respondent No.1 herein to the Respondent No. 2 for the Phase I of the propose.d Ken Betwa River · Link Project in Panna, Tikamgarhand Chhatarpur. District of Madhya pradesh and Jhansi, Mahoba and Banda districts of Uttar Pradesh. It is submitted that· the said Environmental Clearance was obtained based on inadequate, incomplete and misleading Environment Impact Assessment, based on public hearings that involved violations of the legal norms and by concealing material information. Further, the appraisal of the said project has been conducted in complete vfolation of the provisions of the EIA Notification, 2006. The EAC (River Valley and Hydroelectrtc Projects) recommedation is arbitrary and reflects non application of mind to factors which ought to have been considered. 4. That the impugned Environmental Clearance suffers from serious illegality, arbitrariness and unreasonableness. The entire procedure from scoping, public consultation and appraisal was carried out in 5 haste, reflects ·arbitariness, non application of mind, non consideration of relevant factors. It violates the precautionary principle and is against the concept of sustainable development. BACKGROUND TO THE PROJECT IN QUESTION s. That the Ken River originates from the north-west slopes of the Kaimur hills in Katni district at an elevationof about 500 m above the mean sea level. It is 427 km long up to its point of confluence with the Yamuna near village Chilla in the .Banda district of UP. The Ken basin covers the area of Katni, Sagar, Damoh, Panna, Satna, Chhatarpur and Raisen districts of MP and Hamirpur and Banda districts of Uttar Pradesh. It is bounded by Vindhya ranges in south, Betwa basin is the west, free catchment of the Yamuna in east and the river Yamuna towards the 2 north. The catchment area of Ken Basin is 28 224 km • 6. ·That the Betwa River rises from Raisen in MP (near village Barkhares, 5-W .of Bhopal) in the Vindhya Plateau at an elevation of 576 m. It is about 590 km long and. meets Yamuna in HamirpurDist in U.P. The basin includes parts of a ·number of districts of Bundelkhand like Sagar, Tikamgarh, Chhatarpur (all MP), Lalitpur, Jhanshi,Jalaun and Hamirpur 2 (all UP). The catchment area of the Bet:Wa basin is 43 895 km • 7. That as per the impugned Environmental Clearance, the project in question has, purportedlv,the objectiye of transferring of Ken basin to water deficit Betwa basin.The project envisages the following components:- • Construction of 77 m high & 2,031 m long composite dam across Ken River near village Daudhan in Chhatarpur District of . Madhya ·inside the core of Panna Tiger Reserve, with gross storage capacity of 2853 Million Cubic Meters and live storage capacity of 2684 MCM. The dam with Full Reservoir 6 level of 268 m will. impact the habitat of terrestrial, aquatic and avian biodiversity. It will displace at least ten villages and will have impacts which have not been fully assessed . • • The project proponent has justified the need for the project in the name of drought affected Bundelkhand, but as the Detqiled Project Report of the project clearly says, basic objective of the project is to facilitate water transfer to Upper 6etwa basin, which ·is .outside the Bundelkhand area. • Two powerhouses, i.e., (i) 2 units. of 30 MW capacity each, and (ii) 3 units of 6 MW capacity each are proposed to be . constructed. •. Two .(2) tunnels ()f 1.9 km long upper level and 1.1 km long lower level tunnel and 221 km long Kefi-,Betwa link Canal Phase-! on the left bank of the river are proposed to be constructed. • The is based on the claim that Ken River has surplus water and Betwa river has deficit water and it is proposed that the surplus water of Ken river can be transferred to Betwa river .through a 221 Km long link canal. It proposes to irrigate parts of six districts, namely: Panna,· Tikamgarh and Chhattarpur districts of Madhya Pradesh and Jhansi, Mahoba and Banda •• districts of Pradesh. ' 8. That the total submergence area is estimated at 9,000 ha, out of which 5,258 ha is forestland.However, as per the figures recorded by the Forest Advisory Committee while recommenqing the project for grant of in principle forest clearance, the forest land requirement is . 5761 ha. Further, it is pertinent to note that out of the said forest land, 4,141 ha is within the Panna Tiger Reserve. 7 9. That it is submitted that the following substantial isst,Jes arise which · merit the quashing of the impugned EC, among other prayers: . VIOLATION OF TORs INCLUDING MODEL TOR: · 10. That the Expert Appraisal Committee (EAC) for River Valley and Hydropower Projects considered the. project in question for the grant of Terms of Reference C'TOR'') of the EIA in its meetings dated 22 Feb, 2007 and 20-21 2010. As per Additional TOR No. (i), the proponent was required to obtain clearance from the Standing Committee of the National Board for Wild Life (''SC NBWL'') before conducting the public hearing. However, it is submitted that while the Public Hearings for the project were conducted on Dec 23 and 27, 2014 in Chhattarpur and Panna districts respectively, whereas, the standing committee of the NBWL recommended clearance to the project only in its meeting in Aug· 2016, thus clearly violating the condition of the Terms of Reference .. 11. That it is pertinent to note that the even though the EAC had approved the grant of TOR in the year 2010, the Ministry of Environment Forest and Climate Change granted the TOR for the preparation of the EIA Report only in the tear 2'014 vide letter dated 15.09.2014. Further, it is submitted that as per para 4 of the .the letter dated 15.09.2014, the following was stiulated:- ..4. .. The EIA/EMP .report should .contain the information in accordance _with provisions & stipulations as given in the Annexure- It is supmitted that the TOR Clearance Letter on MoEF website does not contain the whiCh it should have since Annexure contains the detailed TOR for EIA/EMP .report.