MA nos. 2678-2680 of 2018 in O.A. 431/2018
Chardhaam Road-Widening Project
Original Application (OA) filed under section 14, 15 and 18 of the National Green Tribunal Act, 2010:
Due to the widening of NH108 as part of the Chardham project, debris and muck were being directly dumped along the slopes into the Bhagirathi river. With the onset of monsoon, the impact of the muck disposal was getting aggravated, raising fears of landslides. Indiscriminate dumping into the river would result in excessive pollution in the river and alteration of its course. Hence, Common Cause on July 3, 2018 filed an OA seeking directions to the executive to establish that the road design conformed to the principle of mass balancing of cut and fill; to bar them from undertaking any further widening work till the stability of the new slope was established; to submit a time-bound muck disposal plan at the earliest and bar them from continuing with construction of road until proper disposal of muck already generated was undertaken; to direct them to bring on record all the documents pertaining to diversion of forest land in the Chard ham project (900 kms) area, especially the total number of trees that would be cut, the hill slopes expected to be cut, as well as the number of trees already cut and set up an independent Commission of Experts, comprising reputed geologists, environmental rights activists, etc. to look into the issue and review the plan of muck disposal in the Chardham project, as already submitted.
On July 10, 2018 the bench headed by NGT Chairperson Justice Adarsh Kumar Goel issued notices to the Environment Ministry, Ministry of Road, Transport and Highways and Uttarakhand government.
In the hearing on August 8, 2018, Union of India filed a counter-affidavit and submitted that proper muck disposal is being done under the project. They also stated that there was no requirement for an Environmental Clearance (EC) as the project was divided into stretches of less than 100 kms each. Common Cause has been asked by the Court to file an affidavit with our submissions.
The matter was listed on August 28, 2018 and was adjourned for hearing to September 17, 2018.
On September 17, 2018 the matter was tagged with the case of Citizens for Green Doon, before being disposed of on September 26, 2018.
In response to a Common Cause petition, the National Green Tribunal (NGT) has appointed a seven-member committee to monitor violation of road construction rules and to address environmental concerns in the Chardhaam Project. The four-judge Bench, headed by NGT Chairperson Adarsh Kumar Goel also held that while no development project is acceptable at the cost of endangering human health and public safety, it is important to allow plans that are executed by respecting safeguards, for larger public interest.
The Bench on September 26, 2018 said that a Special Secretary will be appointed by the Ministry of Environment, Forest and Climate Change (MoEFCC) to lead this Committee. The Committee will also feature representatives from Wadia Institute of Himalayan Geology, G.B. Pant National Institute of Himalayan Environment & Sustainable Development, National Institute of Disaster Management, Forest Research Institute, Dehra Dun and Uttarakhand Forest department officials, among others.
54. Accordingly, we direct constitution of the following Oversight Committee:-
1. Justice U.C. Dhyani, Former Judge, Uttarakhand High Court, Chairman Public Service Commission, Dehradun
2. Representative of Wadia Institute of Himalayan and Geology
3. Representative of National Institute of Disaster Management.
4. Representative of Central Soil Conservation Research Institute with expertise in natural disasters, landslides, etc.
5. Representative of G.B. Pant Institute of Himalayan Environment
6. Representative of Forest Research Institute, Dehradun
7. Secretary of Environment and Forest Department, Uttarakhand, Dehradun to be Member Secretary/convener/coordinator of the Committee.
8. Concerned District Magistrates of the Districts concerned will act as co-coordinator and for arranging visits and meetings at local level.
The Tribunal further held that de-hors the notification dated 14th September, 2006, rapid Environmental Impact Assessment and preparation of Environmental Management Plant is necessary which has detailed elaboration on slope stabilization, muck disposal and muck management compensatory afforestation, disaster management, etc. is still necessary having regard to the nature and location of the project and potential impact on environment. It held that such Rapid EIA must take into account all aspects of air quality, stabilisation of slopes, identification of landslide hotspots, construction of green roads, muck disposal arrangements, compulsory afforestation, including the requirement of transplanting trees instead of felling trees wherever possible, disaster management and preparedness measures.
The Tribunal noted the poor mechanism for muck disposal in the project and held: " the structural stability of muck dumping sites is not upto the mark and we feel that with so much of muck/debris load there is every possibility of some caving in during excessive landslides and other natural disasters. Therefore, stabilizing such sites with Gabion wall/Crate wires at places where load is less seems to be adequate but in high load bearing sites, augmented RCC structures followed by strengthening by way of grids through engineering and bio-engineering methods would stabilize such sites. State Government to also notify Debris Dumping Policy which includes details of environmental restoration and restitution. The Committee shall also look into disaster management and disaster preparedness measures."
The matter was disposed of with the above directions on September 26, 2018.
The petitioners in the tagged case, Citizens for Green Doon, filed a miscellaneous application in the Supreme Court and thereafter the above order of the NGT was stayed by the Supreme Court on 22 October 2018.
On January 11, 2019, the appeal was admitted and it was clarified by the bench, Justice Rohinton Fali Nariman and Justice Vineet Saran, ordered that there will be no stay on on-going projects apart from para 46 at page 22 of the impugned judgment, which will be stayed. The Additional Solicitor General Ms. Pinky Anand stated that the respondent will file an affidavit within a period of eight weeks, with a list of on-going projects.
In CA No.10930/2018, Respondent No.1 has filed counter affidavit with permission of the Court on February 14, 2019. Respondent Nos. 2 and 3 have not entered appearance yet.
In CA No. 10930/2018, notice has been issued for filing counter affidavit within a period of four weeks from today and thereafter, within two weeks, a rejoinder affidavit must be filed. The court has dispensed with the personal appearance of the alleged contemnors.
In MA nos. 2678-2680/2018 in CA No(s). 8518-8520/2018, CA No. 10930/2018 and Cont. Pet. (C) No. 423 of 2019 in CA No. 10930/2018, the bench consisting Justice Nariman & Justice Surya Kant heard the arguments on August 8, 2019 and held:
We constitute a High Powered Committee (HPC) consisting of the persons who are mentioned in para 54 of the said order. However, the Committee is to be headed by Prof. Ravi Chopra, who will replace Justice U.C. Dhyani, and will be the Chairman of the Committee. In addition to this, we add a representative of the Physical Research Laboratory, Department of Space, Government of India, Ahmedabad; a representative of the Wildlife Institute of India, Dehradun; a representative of MoEF&CC, Regional Office, Dehradun; and a representative of the Ministry of Defence dealing with Border roads, not below the rank of Director. We direct MoEF&CC to constitute the High Powered Committee within two weeks from the date of this order. The HPC may co-opt member(s) for effective discharge of its functions. The MoEF&CC shall provide venue and secretarial assistance to the HPC, who will make decisions by majority voting.
The matter has been disposed of with the following terms of reference:-
I. The Committee shall consider the cumulative and independent impact of the Chardham project on the entire Himalayan valleys and for that purpose, the HPC will give directions to conduct EIA/rapid EIA by the Project Proponent/MoRTH.
II. The HPC, with the help of the technical body and engineers of implementation agency (MoRTH) should consider whether revision of the full Chardham project (about 900 Kms) should at all take place with a view to minimize the adverse impact of the project on environment and social life.
III. The HPC shall identify the sites in which work (i.e. hill-cutting) has started and the stretches in which the work has not yet started. As far as the sites in which work has started, the High Powered Committee should recommend the measures which are required for stabilizing the area where hill-cutting has taken place, among others, the environmentally safe disposal 3 of muck which has been generated so that it does not adversely affect the flora and fauna of the catchment area of the river.
IV. As regards the stretches where work has not started, the HPC will review the proposed project and recommend measures which will minimize the adverse impact on environment, social life and bring the project in conformity with the steep valley terrain, carrying capacity, thus avoiding any triggering of new landslides and ensuring conservation and protection of sensitive Himalayan valleys.
V. The HPC will assess the environmental degradation in terms of loss of forest land, trees, green cover, water resources, dumping of muck and impacts on the wildlife and will direct the mitigation measures. Specific attention will be laid on protecting wildlife corridors, and rare and endangered flora and fauna.
VI. The HPC will assess and quantify the impact on social infrastructure/public-life due to triggering of fresh landslides, air pollution, frequent road blocks etc. and will suggest necessary measures for its redressal, including preparation of disaster management plans prior to the monsoon season.
VII. In Bhagirathi Eco Sensitive Zone (Gangotri to Uttarkashi), the HPC will make special provisions in its report keeping in mind the guidelines given under 4 the Notification of the Bhagirathi Eco Sensitive Zone so as to avoid violations and any environmental damage.
VIII. The HPC will also suggest the areas in which afforestation measures should be taken. It will also suggest the kind of saplings which have to be planted in different terrains of Himalayas. A separate Committee be constituted by the Forest Department of Uttarakhand to continuously monitor and report on the website that the saplings which have been planted have survived and grown. In case of non-survival of any sapling, further plantation should be done. Compensatory afforestation should be ten times the number of trees which have been cut. The HPC shall prepare an effective afforestation plan ensuring its proper implementation.
IX. The HPC will invite experts from different fields and consult local people or hold public meeting in the local areas to take recommendations and suggestions, as it deems fit.
X. The HPC shall consider giving specific directions to the concerned agencies to put in the public domain the landslide-prone areas, and their treatment by the Project Proponent, the total muck generated, and the places where it has been disposed of in an environmentally sound manner.
The HPC shall submit its report of recommendations within a period of 4 months from the date of this order to the Ministry of Road Transport and Highways for implementation. Additionally, the HPC has been directed to conduct quarterly meetings thereafter, to ensure timely and proper compliance of its recommendations. The HPC may also suggest any further measures, in the interest of protection and conservation of environment, after each quarterly review meeting.