By:
Ravinder Makhaik
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 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.
