High Court orders dismantling of captive thermal plant
Shimla: Getting tough on blatant violations of environment laws, a green bench of HP High Court on Friday not only imposed Rs 100 crore damages on Jaiprakash Associates Ltd. (JAL) for having set up a whole cement plant by adopting fraudulent means but also cancelled permissions for a 62 MW captive thermal plant and directed that it be dismantled within 3 months. To fix official responsibility for allowing the illegality, the court set up a special investigation team (SIT) for the purpose.
Disposing of a PIL (No 15 of 2009) and a petition (No 586 of 2010) challenging the setting up of a cement plant at Bagheri village in Solan district, the green bench headed by Justice Deepak Gupta with Justice Sanjay Karol held that that “the entire project of Jaiprakash Associates Ltd is based on a tissue of lies.”
Writing the order for the bench Justice Deepak Gupta observes “this company has behaved like a law unto itself. At every stage JAL has either given wrong information or has tried to mislead the authorities.”
Firstly to obtain environment clearance, the company fraudulently claimed costs of the plant to be less than Rs 100 crore where as actually having invested between Rs 400 to Rs 500 crore setting up the cement plant.
Laws on September 16, 2004, when the cement plant was cleared by the states single window clearance authority, for a project with less than Rs 100 cr investment did not require to obtain any clearances from ministry of environment of forest and environment (MoEF).
The court struck down the company’s contention that project costs escalated to over Rs 400 crore because of delays and increase in prices of plant machinery. The judges pointed out that the plant construction began on November 2, 2004 with the promoters not holding any public hearing or obtaining any environment clearance. No delays occurred as the plant was completed within the scheduled 5 year period.
The court even expressed shock at transfer of 325 bighas of villagers’ common lands worth crores of rupees without any authority whatsoever.
“Can the state act like a land mafia, take over possession of the village common land and hand it over to a private company without even following the semblance of the rule of law,” the judges questioned?
The court held that the possession of land was illegally handed over to JAL and clearance from MoEF for diverting forest land for the cement plant was only taken after it had been set up.
Holding JAL guilty of deceit the court adopted the ‘polluter pays’ principal to impose Rs 100 crore damages on the company that is to be paid in four equal installments with the first one due by August 31, 2012 and the last one by March 31, 2015.
Before ordering dismantling of the thermal plant set up purportedly for captive use of the cement plant, the court observed that it “was set up without any valid approval and construction was carried out even after the consent was withdrawn.”
The court recorded that an application for setting up a 25 MW captive multi fuel power plant at Bagheri was first moved before director industries on December 20, 2005.
Though environment clearances were not obtained or project costs shown, the proposal was cleared on September 27, 2006 and JAL started construction immediately.
On realizing that environment clearance under an Environment Impact Assessment (EIA) 2006 notification was mandatory, HP Pollution Control Board on February 15, 2007 asked JAL hold a public hearing and obtain environment clearance for the thermal plant under construction. The projected investment for the plant was Rs 90.45 crores.
A public hearing was conducted on July 2, 2007 and minutes of the meeting revealed that the entire public present opposed setting up of the thermal plant.
On July 16, 2007 the government took a decision to withdraw all no objection certificates for setting up thermal plants in the state.
Despite PCB withdrawing the consent to establish on July 17, 2007 and MoEF as for keeping the project in abeyance on September 7, 2007, the company did not stop construction.
“JAL behaved as if it is above the law,” the court observed.
However with a change of government in December 2007, on November 10, 2008 the policy was changed by the cabinet at the behest of an overactive bureaucracy to permit captive consumption thermal plants.
Interestingly on the same day JAL through its executive chairman sent a letter seeking permission to set up a 60 MW captive thermal plant at Bagheri.
“JAL seems to have its eyes and ears in every wing of the government because even before the ink had dried on the letters conveying the new policy, JAL had sent its own detailed proposal for setting up a thermal plant on the same day,” the judges observed.
Till date there is no permission from MoEF permitting use of forest land for setting up a thermal plant, the order records.
JAL applied to MoEF for obtaining environment clearance for a integrated 62 MW project on February 18, 2009 and a public hearing was held on September 7, 2009.
Striking down the environment clearance for the thermal plant, the judges concluded that the entire foundation of the environment clearance obtained by JAL was based on falsehood.
With the court observing that the company could not have succeeded in its illegal endeavour to establish the plant and get permissions without active connivance of officials, it ordered setting up of a three member special investigation team to be headed by KC Sadyal, additional director general of vigilance bureau.
The court has empowered SIT to investigate and identify the public servants who connived to with and helped JAL and those who were negligent in discharge of their duties.
The investigation has also been asked to indentify whether any official directly or indirectly received undue benefits from JAL or any of its associate companies whether in the form of grant of business outlets, reemployment etc.
Directed to submit its report December 31, 2012, the court asked SIT to also recommend initiation of criminal or disciplinary action against erring officials
About official apathy, the order observed, “most shocking aspect of the matter is that neither the department of industries nor the pollution control board thought it fit to verify whether the cost of the project of Rs 90 Cr submitted by JAL was in fact correct or not.
On the one hand JAL was stating that it was investing Rs.450 crores on this project and on the other hand it was claiming that the cement plant would cost only Rs.90 crores. The industry department in its reply has, like the proverbial ostrich, hidden its head in the sand and has not replied to the allegations regarding costings. If this is the state of affairs, the state of Himachal Pradesh is headed for environmental ruination.”
Petitioners Him Privesh Enviorment Protection Society and panchayat representatives of the area had alleged that the cement plant had been set up in total violation of environment laws, no proper public hearing was conducted and 325 bighas of village common lands had been wrongly transferred by the state in favour of the company.
As Editor, Ravinder Makhaik leads a team of media professionals at Hill Post.
Spanning a career of over two decades in mass communication, as a Documentary Filmmaker, TV journalist, Print Media journalist and with Online & Social Media, he brings with him a vast experience. He lives in Shimla.
good…ATLEAST SOMEONE IS LISTENING…politicians are such a sellout…way to go judges
That is very big judgment. Over multinational company , Ooh my god 100cr jpee dead
JP dead for 100 crs.? U must be dreaming.They have earned more than that in just one housing poroject in NOIDA.
Make sure they do not find a workaround to subvert the judgement — it is the duty of every Himachali to nbe on guard and ensure that. There are enough brownfields in the country to carry on cement production. There is no reason for them to be here, except the political greed.
Him Privesh Environment Protection Society and GP representatives – – Tussi Great Ho!!!
Shame on lame administrators at PCB and Industries board. Wish the hon. court could go a step further and send officers-at-fault back home; without pension.
Kudos to the Court AND Civil Society for getting to this decision! JAL have had a free hand in HP for far too long and it is the environment that has suffered. First they get contracts for roads, then for the Power Project in Kinnaur (in the sensitive Sangla valley), then the University at Vaknaghat. By putting up the captive Thermal Plant without the necessary environmental safeguards and clearances, AND the cement plant, riding roughshod over the objections of the local people, JAL has shown their lack of concern not just for the environment but also cocked a snook at the State and Central Governments. Thank God there is somebody who is willing to take them on and bring them to book!
This is a great step by the court and we are also thankful to “Him Parivesh Environment Protection Society and GP represwentives” for this great step. Most of the companies working on Himachal did not obey the rules for Pollution. There is a great need to punish such kind of companies who broke the rules of environment!!
stella
do u know anything about jaypee group?they allready have bsc standard and they are well aware about the hse .so if u have any confusion then write to us.
all f u r on in d favour of hp high court .but have u tthought that had the project been established
(which had started 5 years ago ) would have created so much energy ,power .
hc have given d descion of demolishing it ..??? why demolish??? it still have the potential to ovecome the demands of electricity in the area.
hc could imposed more fine on JAL.but demolishing is a wrong descion….
This Thermal Plant is not for the national grid … it is a captive plant for providing power only to their cement plant ! In any case, HP has a policy of not allowing any polluting industries within the state (at least I hope the policy still exists!)
hah! Court ordered demolition because the entire set-up was found to be illegal.
And Himachal is not really short of electricity. But yes, it needs to protect its most precious resource – environment.
Perhaps you don’t know that thousands of people living around this site were opposed to its construction right from the beginning.
Since its not China, the land in question is not barren or in the middle of nowhere, company used fraudulent means to get clearances and people in Himachal are not dying for few crores of annual revenue at the expanse of their motherland’s precious ecology…. the decision of the court is right – factually, morally and on all other possible plains of thought.
Get a life!
Great job done by Him Parivesh ! High Court even questioned the state to have acted like a land mafia !!! The issue calls for a CBI inquiry over the conduct of bureaucrats who handled this case.
JP MONEY FUELLED ANNADALE PROTESTS?… ANOTHER TATRA-LIKE SCANDAL??
The ugly truth is out (I don’t see story carried on your website which has been given wide coverage the rest of media — that JP money went into Anurag Thakur’s election campaign and also into HP Cricket Association acquisions of prime properties land for stadium etc.)
Money Talks!!! Just how father-son politician duo confounded the nation with their shrill demand to Army to leave Annadale Grounds for purpose of cricket stadium and their pernicious threats to sue anyone who dare speaks against them.
I think a high-level CBI Enquiry, monitored by Parliament panel is called for in this Tatra-Vectra like scandal which shamed the nation and warmed the cockles of ISI in Pakistan and the Chinese expansionists. People want to know what was behind all this…
FYI Both BJP and Congress governments gave green signals to this project; one after another.
The above cited judgement is a milestone judgement for environment workers like me. We had sent a letter to the Hon’ble Chief Judge of Calcutta High Court on 17/05/2001 that was converted into a Writ vide No. 7428 of 2001.
There was an interin judgement by the High Court directing the Titagarh Thermal Power Station of CESC Limited not to dump fly ash in the vast perennial wetland in Bilkanda and Mahispota of North 24-Parganas of West Bengal which is furnished below :
Following are the directions issued by Calcutta High Court for protection of wetlands in question:
W. P. 7428 (W) of 2001
01/03/2002
Mr. Pradip Kumar Das – For Petitioners
Mr. Asim Kr. Halder – For S. P.
Mr. Aninda Mitra – For CESC
Mr. A. Chowdhury
Mr. M. C. Das – For W.B.P.C.B.
Mr. S. Banerjee
Supplementary affidavit filed by the CESC Limited today be kept with the records of this case.
The learned Counsel, for the petitioners, wants to give reply to the supplementary affidavit. He may do so within two weeks from today.
The S. P. will see that the wetland/water bodies are not filled up with fly ash by CESC Limited or any other Company in or around that area.
Report filed by the P.C.B. be kept with the records of this case.
Let this matter stand adjourned till 22.03.2002.
Let xerox plain copies of this order, duly counter-signed by the Assistant Registrar (Court), be handed over to the learned Counsels, for the respective parties.
Sd/-
( Ashok Kumar Mathur, C.J.)
Sd/-
( Subhro Kamal Mukherjee, J)
Despite the above Police authorities are not taking any action as a result large size town ship has come up in the wetland after filling the area with the above cited fly ash.
Fly ash generated in Titagarh Thermal Power Station (TTPS) of CESC Limited is the crux of the problem as this fly ash is the main filling materials in the wetlands of entire Barrackpore sub-division that includes Bilkanda and Mahispota and our Itkhola Pukur. This power station was commissioned in 1983 but till date (07.05.2012) the authorities of CESC Limited have not complied with the environmental guidelines set out by the Ministry of Environment and Forest, for disposal of fly ash, rather straightway filling up the wetlands ceaselessly through fly ash removal contractor. Furnishing below a news paper clipping which speaks for itself.
The Times of India
Fly ash chokes lakes
Archita Bhatta, TNN,
Nov 16, 2001, 11.44pm ist Sodepur: Chief Minister Buddhadeb Bhattacharjee is worried about preserving the rapidly dying wetlands in and around Kolkata, but how far will be succeed in his efforts? The ash ponds of the Titagarh Thermal Power Plant are too small to accommodate about 1,300 Tonnes of fly-ash which is generated every day. So the debris finds its way to the ponds and lakes in Amdanga, Bilkanda, Mahishpota, Tentultala, Netaji Pally, Sarda Pally and Sukanta Pally – all in Sodepur. local residents have protested vehemently and moved the green bench of the Calcutta high court. The West Bengal pollution control board, shocked at the manner in which wetlands were being dumped with fly-ash, recently issued strict instructions to stop filling up the water bodies and also restore them. But once again, no one cared much. the WBPCB order said, “the CESC authority… should not fill up any water body or wetland through its fly ash unless specifically permitted by this board in accordance with law.” the WBPCB also directed the CESC authorities to restore the wetland and water bodies at Natun Rasta in Mahispota, Intkhola Pukur in Ghola and Ambagan in Sodepur “which have been destroyed by the CESC Limited.” no one took much notice of the WBPCB’s directions, so on October 4, the pollution body issued a show-cause notice asking the CESC to explain why legal action should not be taken against it for violating its earlier order and dumping fly-ash in the Ambagan area. when contacted on Friday, a CESC spokesperson said he would be able to comment on the matter only on Monday. The relevant files would have to be checked, he argued. The WBPCB does not seem to be a very effective body. It has tried to clamp down on various cases of widespread pollution, but to little impact. Several industries came up in the Mahishpota and Bilkanda areas. A thermocol factory, a saw mill, a WBSEB substation set up shop. The foundation of a private engineering college was also laid. Construction of a housing complex was also started and the WBPCB ordered all the units to shut shop. When TNN visited Mahispota recently, the thermocol factory, saw mill, the substation, the structures of the housing complex and the foundation of the private engineering college were standing intact. no one cared to follow the WBPCB’s instructions. Also, an elaborate process of plastic recycling was underway in full swing at several water bodies. the plastic is left in the water for several days before being taken to other places to be processed into pellets. In the midst of unplanned industrialization, the environment seems to be the first casualty.
We feel HP High Court Judgement may creat some impact on such delinquent industries.
Despite being directed by the authorities concerned the adamant industries like CESC Ltd simply ignoring the laws of the land.
Here is the News Paper Clipping
CESC told to restore wetlands
Nilanjan Dutta, TNN Sep 5, 2001, 10.46pm IST
kolkata: the west bengal pollution control board has ordered the cesc to “restore the wetland and waterbodies” of three places of north 24-parganas district “which have been destroyed by the cesc, by dumping fly-ash of their power plants”. the pcb had received a complaint through the national human rights commission to conduct an inquiry into the matter. local residents, organising themselves into a forum called the joint movement for saving environment, had moved the nhrc and a public interest litigation had also been filed at the calcutta high court by santi roy and others. the central and state pcbs had inspected the affected areas — natun rasta, mahispora, under bilkanda gram panchayat, itkhola pukur under ghola police station and ambagan in sodepur — on may 30. the wbpcb has recently submitted its reports to the high court. it maintains that “cesc has filled up the aforementioned sites by fly-ash violating the statutory provisions and directions of the state board. all such areas are waterbodies or can be termed as ‘wetland’.” the direction, dated june 15, ordered the cesc to comply within three months. board officials further inspected the sites on july 25 and held a hearing on august 1 with representatives from the wbseb, ghola police station and local industries which were said to have been set up on the filled-up wetland. it was agreed that existing or under-construction units would be shifted and no new industries would be built on the land. subsequently, the pcb suspended consent to tekno gases and carbonic, shubham plastic industries, das solvents and eskay kaycee industries, with a direction to submit relocation plans. a unit called ananda was directed to shift its lpg storage godown. notices of closure and disconnection of electricity were issued against bhattacharyya industrial works and asian wood industry as these were found “operating without prior permission of the state board”. following a directive from the high court, the wbpcb inspected the site again on august 14 and reported that fly-ash dumping had stopped. the local activists, however, do not agree with this observation.
Following are the directions issued by Calcutta High Court to Government of West Bengal seeking its policy regarding wetland and industrialization.
Surprisingly even after a lapse of seven years the Government of West Bengal has not submitted its affidavit as sought by the Hon’ble High Court in such an important environmental matter.
26/08/2005
W.P. NO.19350 (W) OF 2003
W.P. NO.19431 (W) OF 2003
W.P. NO.19432 (W) OF 2003
W.P. NO.19433 (W) OF 2003
W.P. NO.19434 (W) OF 2003
W.P. NO.7428 (W) OF 2001
MR. Surajit Samanta
Ms. Madhumita Roy …. for Petitioner
Mr. Pradip Kumar Das
Mr. Devjyoti Bhattacharjee … for the petitioner in W.P. No.7428 (W) of 2001
Mr. Manik Chandra Das
Mr. Subrata Banerjee …. For the PCB
Mr. Anindya Mitra for the CESC
Mr. Soumitra Dasgupta
Mr. Tulsidas Maity … for the State in W.P. No.7428 (W) of 2001
Mr. Jagabandhu Roy
Mr. Amrita Sinha … for State in WP 19350 (W)/03
Mr. Chandra Sekhar Das … for State in WP 19431 (W)/03
Mr. Durgadas Roy …. for State in WP 19432 (W)/03
After considerable debate it turns out that the State Government has so far not filed any affidavit displaying its policy in the matters of wetland and industrialization. We feel it necessary to order the State Government to file an affidavit within three weeks from today taking a definite stand and showing definitely as to whether the concerned land on which the present industries are standing are over the industrial zone or this industries were permitted by the State Government to be erected there. The State Government shall also make it clear as to what is exactly its policy regarding wetland and industrialization. The affidavit in reply may be filed two weeks thereafter. Put up immediately after the Puja Vacation.
Plain copy of this order, duly countersigned by the Assistant Court Officer may be supplied to the parties.
Sd/-
( V.S. Sirpurkar, C.J.)
Sd/-
( Ganguly, J)
Furnishing below a News Paper Clipping that relates to my submission dt. 7th May 2012 above at 4:29 pm
THE STATESMAN KOLKATA
AUGUST 26 2005
HC directive to state on wetland
Our Legal Correspondent
KOLKATA, Aug. 26 — Calcutta High Court today directed the West Bengal Government to declare the state’s policy with regard to preservation of wetland and creation of industrial zones in wetland areas within four weeks.
The Division Bench of the Chief Justice, Mr VS Sirpurkar and Mr Justice Asok Ganguly, passed this order during the hearing of a writ petition and seven other applications about filling of two large water bodies in the Ghola area in North 24-Parganas.
A writ petition had been filed by Mr Santi Roy alleging that two water bodies were going to be filled with fly-ash by the CESC through its agent. He further alleged that some factories and residential houses had been built on a part of the said wetland and that had changed the nature and character of that wetland measuring about 21 acres. One water body is about 14 acres and the other 7 acres.
The applications had been filed by some factories challenging the order of the West Bengal Pollution Control Board which had directed the factory owners to shift the factories.
The PCB had also directed the CESC not to fill the water bodies with fly-ash. Against that order of the PCB the industries had preferred an appeal to the appellate authority of the PCB.
The appellate authority had confirmed the order of the PCB. Against the order of the appellate authority, dated 26 September, 2003, the industries and the CESC had moved the High Court. Today the High Court directed the parties to maintain status quo till the matter came up for hearing after the Puja vacation.
Mr Manick Das with Mr Subrata Banerjee appeared for the PCB. Mr Anindya Mitra appeared for the CESC. Mr Surajit Samanta appeared for the industries. Mr Rabilal Maitra, Government Pleader and Mr Soumitra Dasgupta appeared for the state.
Him Privesh Environment Protection Society and Court have done gr8 job.
Really Great Job by the court. Japyee group is ruining health of the state, raising pollution by many folds.
Could anyone provide Email ID of President/office bearers of Him Parivesh Environment Protection Society to Er. Devesh Pant – [email protected]? Kudos to them for protecting their Environment and showing the way to others to do so as well.
Devesh Pant,
16 A Kalidas Road, Dehra Dun – 248001,
Phone 0135-2748546,
9997168265