PROJECT OF ENVIRONMENTAL LAW

Topic: - ALAKNANDA HYDRO POWER CO. LTD.

VS.
ANUJ JOSHI

Submitted To: - Submitted By:-

MS. MEENU SHARMA 1) ANSHIKA AGARWAL

(A3256117183)

2) HIMANI GOYAL

(A3256117177)

3 YEAR LL.B.

SECTION- C
 ACKNOWLEDGEMENT
“The completion of our assignment depends upon the co-operation, coordination and
combined efforts of several resources of knowledge, inspiration and energy.” The
competence and expertise of people around us was a factor that motivated us to strive and
achieve nothing short of perfection.

We owe, great thanks to all those without whom this project wouldn’t have been as much a
learning experience and as successful. To those, who helped and supported us during the
course of the project.

My deepest sense of gratitude to Ms. Meenu Sharma, for constant guidance, professional help
and support during the course of the project, for guiding us and helping us at all times during
the project. She was the key inspirer for us and without her guidance, this project would have
been a distant reality.

We would also like to thank the library staff for have putting up with our persistent queries
and having helped us out with the voluminous materials needed for this project.

And finally, we thank our friends for providing constant encouragement and help. We are
indebted to them for their timely help and enthusiasm they expressed in helping us bring this
project to the fruitful end.
 BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH
AT NEW DELHI, NEW DELHI

Original Application No. 03 of 2014

In the matter of:

1. Srinagar Bandh Aapda Sangharsh Samiti

Through its Vice President Shri Prem Ballabh kala
Prem Bhawan Near ITI
Bhaktiyana, Srinagar
District Pauri, Uttarakhand
2. Vimal Bhai
Convenor, Matu Jansangthan
D-334/10 Ganesh Nagar,
Pandav Nagar Complex,
Delhi- 110092 ……. Applicants

Versus

1. Alaknanda Hydro Power Co. Ltd

through its Managing Director
Srikot, Srinagar, District Pauri,
Uttarakhand- 246174
2. Union of India
Through The Secretary
Ministry of Environment and Forests
Government of India
Paryavaran Bhawan, C.G.O. Complex
Lodhi Road, New Delhi- 110003
3. State of Uttarakhand
through the Principal Secretary (Forests)
Civil Secretariat, Dehradun- 248001,
Uttarakhand
4. Bharat Jhunjhunwala
R/O Lakshmoli, PO Maletha
Via Kirti Nagar District
Tehri- 249161 Uttarakhand ……Respondents

Counsel for appellant:

Mr. Rahul Choudhary, Advocates for appellant

Counsel for Respondents:

Mr. M.L. Lahoti and Ms. Rashmi Chatterjee,
Advs.for respondent no. 1
Mr. Vivek Chib and Mr. Ankit Prakash, Advs.
For Respondent no. 2
Mr. Rajiv Nanda, Mr. Manish Kumar Vikkey,
Advs for respondent no. 3

Present:
Hon’ble Mr. Justice U.D. Salvi (Judicial Member)
Hon’ble Prof. A.R. Yousuf (Expert Member)
 INTRODUCTION

The environmental issues in India are rising rapidly. The rapidly growing population and
increase in economic development is putting major strain on the environment, infrastructure,
and the country’s natural resources and thus degrading the environmental quality.
In the Constitution of India it is clearly stated that it is the duty of the state to ‘protect and
improve the environment and to safeguard the forests and wildlife of the country’. It imposes
a duty on every citizen ‘to protect and improve the natural environment including forests,
lakes, rivers, and wildlife’. Reference to the environment has also been made in the Directive
Principles of State Policy as well as the Fundamental Rights. The Department of
Environment was established in India in 1980 to ensure a healthy environment for the
country. This later became the Ministry of Environment and Forests in 1985.1 The
environmental protection act, 1986 has turned out to be a milestone in environment
protection in India. The act reflects the awareness and concern of the people and the
government towards environment protection.
Under the act, the central government has the power to take all such measures as it deems
necessary or expedient for the purpose of protecting and improving the quality of the
environment and preventing, controlling and abating environmental pollution. It may appoint
authority or authorities with such powers and functions as it deems fit to check environmental
pollution.2
On 18th October 2010 the national green tribunal was established under the national green
tribunal act 2010 for effective and expeditious disposal of cases concerned with environment
protection and forest conservation and natural resources including enforcement legal right
relation to environment and giving relief and compensation for damages to persons and
property and for matters connected therewith or incidental thereto. The jurisdiction of the
tribunal in environmental matters shall provide speedy environmental justice and help in
reducing the burden of litigations in higher courts.
One of the notable orders of NGT is being witnessed in the landmark case of alaknanda hydro
power company co. ltd .vs. anuj joshi, in which the company was made to pay the
compensation for the damages it has caused to the people and property of uttarakhand.

1
Environmental laws, available at : http://edugreen.teri.res.in/explore/laws.htm (visited: 3rd September,2017)
2
Ram babu Singh, Suresh misra, Environmental Law in India: Issues and Responses (concept publishing
company, 1996)
 ALAKNANDA HYDRO POWER CO. LTD. VS. .vs. ANUJ JOSHI

BACKGROUND:

The 330 MW Shrinagar Hydro Electric Project (a hydroelectric power plant) is built on
Alaknanda River, located in, Srinagar, in Pauri Garhwal district, Uttarakhand. The project
was granted permission by director and member secretary environmental appraisal committee
on certain conditions, keeping in mind the safeguard of the people. The ownership of the
plant lies with Alaknanda Hydro Power Corporation Limited, a GVK Group company.

ISSUE:

Whether the hydroelectric project had impact on environment and it contributed to the
Uttarakhand disaster?

In the state of uttarakhand, excessive rainfall and weather conditions happened during the
middle of June 2013. A monumental tragedy happened in the state. A large number of people
living alongside the river and in the hilly regions witnessed nature in its very crucial state and
a large number of people were left homeless and displaced.3

An organisation formed by the residents of Srinagar district pauri and vimal bhai (convener
of mattu jansangathan) raised various issues regarding environment have filed this
application to make the alaknanda hydropower company pay the compensation for the
damage suffered in terms of loss of life and property by the members of the Srinagar Bandh
Aapda Sangharsh Samiti. It was submitted by the applicants that the devastation caused
because of the flood was spread over an area in Srinagar District Pauri namely, Shaktibihar,
Lower Bhaktiana, Chauhan Mohalla,Gas Go down, Food Go down, SSB, ITI, Resham Farm,
Roadways Bus Stand, Nursery Road, Alkeshwar Temple, Gram Sabha Ufalda’s Fatehpur
Reti, Sriyantra Island Resort and other places including government quarters. Srinagar
hydroelectric power project is a river scheme which involves the construction of 63m high
dam across the river alaknanda, 800m long diversion tunnel and 4.8m long power channel for
generating 200MW of power causing 300ha of land. On 3rd May, 1985 the project got its
clearance letter issue by director and member secretary environmental appraisal committee
on certain conditions.

3
Kartikey Hari Gupta, Sustainable Development Law: The Law for the Future, (Partridge India, 14 May 2016)
It is the case of the applicant that the respondent no. 1, alaknanda hydro power co. ltd
inappropriately dumped a massive quantity of muck from the construction in the front
gate of the dam without taking necessary steps to secure such musk from flood.
According to the appellant due to heavy rainfall, between 16 June to 17 th June 2013, the
reservoir of the Srinagar hydroelectric project was filled due to heavy rainfall. The gates were
kept closed by AHCL which led to accumulation of water and as result opening of the gate
led to massive flow of water suddenly sweeping away muck dumped in the river bed by the
dam authorities and carrying it to the villages.

What led to further damage was that project proponent failed to even construct a retention
wall. The area being filled with 8 feet high muck led to massive loss to property as well
people. Rs. 9,26,42,795/ were claimed by the applicant for the damage suffered by its
member and residents of the Srinagar, taking into the account, the losses and expense’s
incurred in removal of the muck and in restoration of property as per the list at annexure A-5
to the application. A vide letter dated 13 august ,2013 was sent by the
applicants to the respondent no.1 regarding the claim for damages from the company but
having got no relief from the respondent no.1 they wrote a letter dated 18th August, 2013 to
the Ministry of Environment and Forest, Government of India, Ministry of Engineering,
Ministry of Water Resources, Chief Minister, Uttarakhand, Commissioner, Mandal Pauri,
District Magistrate Tehri Garhwal, District Magistrate, Garhwal to consider their demands for
restoration of the area upon removal of the muck and making the place habitable and
payment of compensation to the affected persons. They also requested for taking of
preventive measures such as construction of protection wall along the river from Srikotto
Maldia prior to the completion of Srinagar HEP.4

4
Alaknanda Hydro Power sinagar flood 2013 NGT judgement.pdf, available at:
http://www.indiaenvironmentportal.org.in/files/Alaknanda%20Hydro%20Power%20sringar%20floods
%202013%20NGT%20Judgement.pdf (visited on 1 september,2017)
 FACTS

Keeping in view the issues raised by the appellants, on 13 march, 2014 the respondent no.1
resisted the application by saying that the victims of the tragedy were already duly
compensated by the state of uttarakhand and furthermore titled the incident as the “act of
5
god” and the project can’t be held liable for the damages as itself have suffered major
losses. Respondent no.1 said that the flood was a result of snowfall ahead of cloudburst on
the banks of Chorabari Lake near Kedarnath causing large scale calamity resulting in massive
human and property loss. Thus, the hydropower project can’t be blamed for the tragedy.

It was further contended by the responded no.1 that its project has arrested huge sediment to
an extent of 26 million cubic meters flown from the upstream and in fact protected the
upstream areas like one in the present case from being washed away as it happened in
upstream area of the water basin.

Hon’ble Apex Court in Alaknanda’s case reported in (2014) 1 SCC 769, keeping in mind
all the facts gave following directions-

1) MoEF was directed that until further orders, no environmental clearance or forest
clearance shall be granted by the state of uttarakhand for any hydropower project.

2)MoEF was directed to form an expert committee consisting of representatives of the State
Government, WII, Central Electricity Authority, Central Water Commission and other expert
bodies to make a detailed study on the contribution of hydroelectric power projects to the
environmental degradation.

3) MoEF was directed to examine the impact of proposed 24 projects on the biodiversity of
Alaknanda and Bhagirathi River basins.

4) The court asked The Disaster Management Authority, Uttarakhand to submit a report, as to
whether they had any disaster management plan in place in Uttarakhand and how effective
that plan was for battling the present unprecedented tragedy at Uttarakhand.

In its reply to the issuance of section 5 under EP act6, the respondent no.1 said that all the
conditions imposed on the project under this section is inadequate. Thus the tribunal directed
5
. The term “Act of God” cannot be given a wide connotation so as to include every inexplicable human error or
other unexplained incidents and must be confined to acts caused by natural elements such as storms, floods,
lighting, earthquake and such other acts of nature which a man is unable to foresee and prevent. Union of India
v. Kothari Trading Co. AIR 1969 Ass 84 (88).
MoEF to appoint an expert committee to look into the matter. The expert committee came to
the conclusion that complying with Muck Management Plan prepared by IIT Roorkee and
approved by the Forest Department of State of Uttarakhand. Further A.D .N. Rao also
appointed to visit the site and submit the report, which again showed the project proponent as
fully compliant. Another committee to MoEF was appointed by the tribunal which concluded
the project proponent as compliant. Finally, on 13th august the Hon’ble Supreme Court vide
Judgment dated was pleased to dispose of the SLP and the cases transferred from the
Tribunal together and gave permission to continue with the project work. It was contented by
the project proponent that during the flood at no point of time the gates were closed, which
led to filling up of the reservoir. The Project proponent in its reply gave account of muck
disposal sites as approved by State Forest Department of Uttarakhand.

It was revealed by the respondent no.1 in its reply that no muck was eroded from the muck
sites other than sites no .6 and 9.

The project proponent confirming that the river had changed the course towards right sites at
location no. 9 in spite of the deflectors installed by Central Water Commission for protection
of the bank and the river course hit the site no. 9 overtopping the toe wall and part of the
original land mass situate on the right bank of the river got eroded during the heavy flow of
flood water which took way the muck from site no. 9. 7 It was added by the respondent no.1
that other than mock disposal locations, the flood water had eroded by many other locations
also and the reason behind high slit concentration levels witnessed during the flood was due
to huge landslides in Mandakni basin. A brief reply dated 12 th march 2014 came from the
respondent no.2 (ministry of environment and forests), shifting the burden of compensation to
respondent no.1 and 2 on the ground that the case pertains to the said respondents.

The Applicant filed rejoinder dated 30th April, 2014 and denied the arguments presented by
the respondent no.1. The applicant further pointed towards the negligence shown by the
respondent no.1 in enforcing the muck disposal management in a proper way.

The learned counsel Mr. Dutta, appearing for the applicant submitted that just getting the
approval to muck disposal plan doesn’t mean that it was complied by the respondent no.1. He
6
Power to give directions; 5 (a) – the closure, prohibition or regulation of any industry, operation or process.
5(b) stoppage or regulation of the supply of the electricity or water or any other service.
7
Alaknanda hydropower Srinagar floods 2013 NGT judgement, available at:
http://www.indiaenvironmentportal.org.in/files/Alaknanda%20Hydro%20Power%20sringar%20floods
%202013%20NGT%20Judgement.pdf ( visited on 1/09/2017)
pointed out that due to the negligence shown by respondent no.1 in complying with muck
disposal plan, the company can’t take the plea of “act of god-vis major”. He further said that
the tribunal should invoke the principle of no fault liability under section 17 (3) 8 of NGT and
charge respondent no.1 with responsibility to pay the compensation for the damages suffered
by the applicants. The Respondent No. 4- Bharat Jhunjhunwala submitted that the volume of
the muck in the river bed increased the flood levels and as such the flood levels in floods of
2013 exceeded the flood of 1970. He pointed out from geo chemical analysis of the sediments
in the affected area that 23 % contribution of the sediments was from the muck.

Learned counsel lahothy considering various reports claimed that the Respondent No.1 had
taken all steps to secure the muck and there was sudden rise in the flood river due to cloud
burst “An Act of God - Vis Major, which led to devastation for which the respondent no.1
can’t be held liable. It was revealed from the Report of April, 2014 on “Assessment of
environmental degradation and impact of hydroelectric projects during June 2013 disaster in
Uttarakhand” that the contribution of Phyllite in the River bed sediments between Koteshwar
(below barrage) to downstream of Kriti nagar varies from 47% to 23 which was generated
from digging and the canal and power house excavation and was kept at 10 locations along
the river bank. It was further observed that these muck erosions raised the level of water. The
contra view of Dr. Das, Co-Chair of expert committee points out that 8Km of urban area was
impacted by the sediment laden flow which came from suspended sediment mostly from
landslides and bank erosion of Mandakini and Alaknanda and even in the absence of the
massive the Srinagar project, a massive disposition would have been collected on the lower
terraces of Srinagar urban area from the suspended sediments.

MEDIA REPORTS

When the media teams arrived at the spot, the locals vent their anger against the staff and the
authorities of these hydropower projects. G.K.V and jaypee groups were labelled with
serious allegations for the ecological devastation caused through the construction of the road.
The villagers of the joshimath (few kms away from the project) alleged that the danger
signals were deliberately ignored by the project staff. In national green tribunal, apex court 2
separate cases were filed against the projects of the jaypee groups and GVK groups. The
8
Section 17 (3), NGT: The Tribunal shall, in case of an accident, apply the principle of no fault
workers and the officials should have kept in mind the risk exposed the villages and its
inhabitants. Grabbing the opportunity to generate more power, the local maintains that the
project staff didn’t expect the flood to take such monstrous proportions. Thus with the rise in
the level of

Media reports say that on the evening of 16 June (2013), the dam operator of GVK group
closed the gate to fill up the reservoir. Within a few hours, when water and silt began
accumulating in dangerously large amounts, the operators realized that their project was in
the danger of being harmed. Without any concern for the people living downstream, they
opened all the gates at once, which resulted in large-scale destruction down the river in the
town of Srinagar. 9

The maximum damage was beared by the 2 small towns, pandukeshwar and Govindghat, The
people of Pandukeshwar lost their homes, cattle, and other belongings, while Govindghat was
completely destroyed. There used to be at least fifty shops and many hotels in Govindghat —
most of these boasted of 30 to 40 rooms. Other than this, there was a gurudwara and several
homes of course. On June 17, when we saw Govindghat, it was hard to imagine there was
once a bustling town.

Atul Sati, a resident of Joshimath told media that company was aware of the deteriorating
situation but they were not concerned about the lives and property of the local people. They
quickly moved all their company vehicles to safe places well before all hell broke loose, but
didn’t bother to warn the people of the danger ahead.

9
Haridayeshi joshi, Rage of the river :the untold story of Kedarnath disaster ( Penguin random house,2016)
 QUESTIONS RAISED

The question raised was, who should be held liable for the damages caused by the flood,
resulting in massive human and property loss?
Whether the claim of alaknanda hydropower company of labelling the tragedy as an ‘act of
god’ is valid or the claims of the appellant in accusing the alaknanda hydropower company
for dumping inappropriately the large amount of muck in front of the dam, which swept away
with the massive flow of water when the gates of the dam were opened, should be considered
valid?
Who will pay the compensation and how much should be the amount of the compensation?
Failure of the whole system has also raised an important question: after constructing such
dams in an area as vulnerable as this, can the entire safety mechanism be completely
dependent on technology alone?
 JUDGEMENT

It was undisputed that the flood in uttarakhand was caused due to cloud burst in upper
reaches of river alaknanda but it was in the knowledge of respondent no.1 – alaknanda
hydropower company ltd that it was built on a highly sensitive area, where cloud burst was
not a rare event. Being aware of these facts, timely protective measures should have been
taken. The Hon’ble Apex Court in its order rejected the plea made by the respondent no.1 that
the damage caused should fall under the act of god.

Even assuming the disaster of June, 2013 as the one involving fortuitous or sudden or
unintended occurrence the injury that has resulted from such occurrence, to the human
habitation needs to be regarded as the one resulted while handling the said plant or the
process leading to manufacturing of power and, therefore, it is an “accident” within the
meaning of said definition under Section 2 (a) of the NGT Act, 2010. In the given facts and
circumstances, therefore, the principle of No Fault Liability under Section 17(3) of the NGT
Act, 2010 makes the respondent no.1- Alaknanda Hydro Power Co. Ltd. liable to pay
compensation for the injury caused to the human habitation.

Going by the geochemical analysis the muck that was found was about 30 percent, which
proves the involvement of the respondent no.1 in the damages being caused. Nothing could
prove that these structures were affected in the floods previously. Thus in such
circumstances, there was no escape from the liability incurred as aforesaid. The court,
therefore, passed the following order:-

1) The court asked the respondent no.1 – alaknanda hydropower co. ltd. To pay the
compensation of Rs 9,26,42,795/ to the victims of flood of June 2013 in uttarakhand, with
the Environmental Relief Fund Authority established under Section 7 (a) of Public Liability
Insurance Act, 1991 within a period of 30 days from the date of this order.

2) Amount of Court fee payable i.e. 1% of the amount of compensation awarded shall be
deducted from the said deposited amount and remitted to the Registrar, National Green
Tribunal as per Rule 12 of the National Green Tribunal (Practise and Procedure) Rules, 2011.

3) necessary directions were to be issued by the respondent no. 3- State of uttarakhand to the
to the District Magistrate of District Pauri to appoint a senior Sub-Divisional Magistrate to
claims from the persons as per list annexed as annexure A-5 with necessary proof in support
of their claims. The SDM so deputed shall verify the claims made in light of the proofs
produced and remit the amount due to such person/s after deduction therefrom the
proportionate 1% amount of Court fees payable as per list annexure A-5 on finding the claim
to be meritorious. Claims shall be called by publishing a notice, therefor in the office of the
District Collector, Srinagar Municipal Corporation and on the website of the State of
Uttarakhand. No Claim filed after 90 days of publication of such notice shall be entertained
by the District Magistrate. Balance amount remaining in environment relief fund after
disbursement of the amount as aforesaid shall be utilised for taking such measures for
restoration of the public property affected by the floods. 10

4) 1 lakh shall be paid to each appellants as well as respondent no.4 by the respondent no.1.

5) Original Application no. 3 of 2014 thus stands disposed of.

CONCLUSION

10
Srinagar Hydroelectric Project on Alaknanda river, UK, India, available at: https://ejatlas.org/print/srinagar-
hydro-electric-project-india (visited: 4/09/2017)
The whole series of episodes with the various twists and turns show the most unfortunate
consequence of total failure of our environmental governance.11

A new ground for the ‘polluter pays’ principle12 was covered by The National Green
Tribunal (NGT) by invoking it in its landmark judgment on alaknanda’s case

Nearly 100 such dams have been proposed in the hills, even as locals and environmentalists
have been crying hoarse about the safety and dangers of having them in the fragile
mountains. But the state and central governments never paid attention to it. The NGT’s
Judgment is the first one to fault hydro power projects for damage caused during Uttarakhand
floods and impose an environment compensation

 The judgments in this case proved how NGT has used its power to fix liability and hold
private companies responsible for the environmental damage they cause. This judgment has
set a precedent by shifting the monetary responsibility of retrieving ecological damage
from the government to the private actors, who are responsible for the damage. The
decision as a result would eventually save taxpayer money. Also, it would deter private
companies from playing safe always under the cover of governmental apathy. Official
acknowledgment of the fact that dams contribute to flooding will boost the cause for those
who are against building dams. Ritwick Dutta, an environmental lawyer who served as
counsel in the case, stated that that Indian jurisprudence is not very well developed when it
comes to assessing environmental damage. He added that in such cases the “evidentiary
burden also falls on the petitioners.” He acknowledged that though litigiousness is very
common in Western countries and accommodated in their legal systems, this culture of
litigiousness has not reached India in the same way. The overburdened status of Indian
jurisprudence and the consequent slow processing of cases acts as another deterrent for
potential petitioners or applicants. 13 One wonders what Rs.9.26 crore can do when the scale
11
Two years of uttarakhand flood disaster of June 2013: Why is state and centre gambling with Himalayas and
the ganga and lives of millions, available at: https://sandrp.wordpress.com/2015/06/18/two-years-of-
uttarakhand-flood-disaster-of-june-2013-why-is-state-centre-gambling-with-the-himalayas-the-ganga-lives-of-
millions/ (visited on 1st September,2017)
12
Enacted to make the party responsible for producing pollution responsible for paying for the damage done to
the natural environment.

13
Landmark NGT Judgments Hold Private Firms, Not God or Government, Responsible, available at:

https://thewire.in/61508/ngt-gvk-delta-polluter/ (visited on 1/9/17)

of the tragedy was so extensive. Yet a beginning has been made to fix accountability and
hopefully this will make companies more responsible in future.