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Polavaram: Supreme Court issues notice on a plea by Odisha challenging the NGT order

To which the counsel for the petitioner, Pawan Bhushan submitted that “no your lordship, in this particular matter the committee report that has been accepted by the honorable National Green Tribunal (NGT) has accepted certain aspects which are issues framed before this honorable court in the order dated August 2018.”

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The Supreme Court has issued notice on an appeal filed by the State of Odisha challenging the order of the National Green Tribunal (Principal Bench) which had accepted the recommendation of a committee on a range of issues concerning the Polavaram Project, including the submergence and displacement of families across Odisha, Chhattisgarh, and Telangana. (The State of Odisha Vs Ponguleti Sudhakara Reddy)

A two-judge bench comprising Justice S. Abdul Nazeer and Justice Krishna Murari issued notice in the above matter while tagging similar matters along with it and refused to grant any stay on the proceedings.

Advocate Pawan Bhushan, the counsel appearing on behalf of the State of Odisha, while seeking an adjournment said, “Mr Gopal Subramanium is leading us on behalf of the state of Odisha, and he is currently before another court your lordship, we were seeking some indulgence if it could be listed on another date, after four weeks if that’s possible your lordship “

Justice Nazeer said, “I think we have to issue notice here.”

Replying to which, Pawan Bhushan submitted, “My lord actually we have also filed a stay application.” “The NGT had no jurisdiction to go into these issues as they were already pending before this court,” he added. 

The Court interrupted and said, “No stay, we are not interested Mr Pawan Bhushan, we won’t grant you stay, we may have to hear the state of Odisha here, we have to examine.”

Anitha Shenoy (Sr.Adv.) the counsel appearing on behalf of the Respondent/State of Telangana caveator submitted that “your lordships may do so, i will also file my response, as long as your lordships are not granting a stay.” 

The Court said “no no we are not granting stay” assuring the counsel.

The State of Odisha contended that it was not even heard before the NGT and the NGT had accepted the recommendations of the Committee and had directed the Project Authority and the States of Andhra Pradesh, Odisha, Chhattisgarh and Telangana and the Central Water Commission to act on the various recommendations of the committee. It had asked the Ministry of Jal Shakti and the Central Pollution Control Board (CPCB) to hold a joint meeting and coordinate with the States.

The State of Odisha said it was not part of the committee that looked into the crucial issues relating to the project which affected the lives of the tribal population. The committee had representatives of the CPCB, Telangana State Pollution Control Board, Environment Ministry and the District Collector, Khammam in Telangana.

The Committee had submitted its report dated 08.09.2020, before the NGT with reference to the concerns in the application which were noted to be as follows:-

“1. Submergence and effect on people is going to increase from 286 habitations to 371 habitations and 44,000 families to 1.05 lakhs families respectively. Project displace persons are about 60- 70% are from backward tribes such as Koya, Kondreddy, etc but there is no plan for their rehabilitation.

2. Displacement of people in Telangana, Odisha, and Chhattisgarh are not considered by Central Government and Andhra Pradesh.

3. The irrigation potential is increased from 7.2 lakhs acres to 15 lakh acres which require increased storage of water in the reservoir which will result in more submergence.

4. Though the Polavaram project is a national scheme, several changes were made without the consent of the Central Government and upstream states. Hence this cause submergence and displacement of people in Telangana, Odisha, and Chhattisgarh more particularly on Seetaramaswami temple, Bhadradri Kothagudem district.”

Pawan Bhushan, the counsel appearing on behalf of the petitioner further submitted that “ your lordship this is connected to original suit no 4 of 2007….”

Hon’Ble Mr. Justice S. Abdul Nazeer interrupted and said, “wait wait we also know the original suit, I have also heard, but let us decide this first original suit is on a different footing its in relation to the construction of the dam.” 

To which the counsel for the petitioner, Pawan Bhushan submitted that “no your lordship, in this particular matter the committee report that has been accepted by the honorable National Green Tribunal (NGT) has accepted certain aspects which are issues framed before this honorable court in the order dated August 2018.”

NGT erroneously accepted the recommendations of a committee relating to the Polavaram project without giving notice to Odisha and affording it an opportunity of hearing. Substantial recommendations were made against the interests and rights of the State of Odisha under the existing inter-state agreements,” the appeal filed by the State of Odisha said.

The Conclusions of the Committee were as follows before the NGT. 

“ 1. The Committee submits to Hon’ble NGT that similar matter OS 4/2006 on impacts on upstream states and backwater studies and OS 1 of 2019 in the matter of concerns of the State of Telangana is sub-judice & pending in Hon’ble Supreme Court. In view of the above, the committee humbly submits to Hon’ble NGT to kindly take a decision on transferring the case to Hon’ble Supreme Court pl.

2.The GWDT award clearly mentions that the matter of design of the dam and its operation schedule shall be left to the CWC which they shall decide keeping in view all the agreements between the parties including the agreements of 2nd April 1980” The committee submits that as long as, the Polavaram project Authority and WRD, Govt. of AP abide by & are compliant with the Interstate agreement of 2nd April 1980 (among states of Andhra Pradesh, Madhya Pradesh, and Odisha) and final GWDT (Godavari Water Dispute Tribunal) award 1980, sanction from CWC and EC from MOEFCC, further examining and studying the impacts of the project do not arise. Polavaram project is a national project and the States have already consented for the project.

3. Issues related to the stagnation of drainage and the stagnation of local streams & Kinnerasani river which may cause flash submergence locally are anticipated to occur by the State of Telangana post completion of the project if water is maintained at FRL for some days in the reservoir. But Polavaram Project Authority or WRD, Govt of AP have not examined these issues and within a period of six months, the issues may be examined and proper safeguard measures may be devised.

4. Since CWC has clarified that the design capacity of the dam for 50 lakh cusecs is done from the safety point of view and using 36 lakh cusecs flood for backwater studies does not violate the provisions of the award. So, the backwater studies carried out by the Polavaram project Authority in upstream states for 36 lakh cusecs may be considered as adequate and further backwater studies at this point may not be envisaged since the project is nearing completion.

5. The Polavaram project Authority cum WRD, Govt of A.P may take complete responsibility for any adverse impacts solely arising out of the project in future days. The Authority may pursue with the states of Telangana, Chhattisgarh and Odisha on the anticipated impacts in their respective states, examine the issues and take proper remedial actions & safeguard measures to mitigate the impacts that are likely to arise.

6. The Polavaram irrigation project is envisaged to feed irrigation water to a sanctioned ayacut of 7.2 lakh acres and there is no increase in the ayacut to 15 lakh acres as alleged in the complaint.

7. As per the interstate agreement on 02.04.1980 and the final GWDT award the states of Odisha & Chhattisgarh have to give their consent and exercise either one of the options for construction of protective embankment or rehabilitation of affected people. Though the Polavaram project is nearing completion and it is assessed that 6316 persons in Odisha and 11766 persons in Chhattisgarh will be affected but either rehabilitation plan or construction of protective embankments is only proposed and actual work is not yet undertaken by project authority since the states of Odisha & Chhattisgarh are yet to give their consent for either one of the options. State of A.P may pursue with the state of Odisha and Chhattisgarh and obtain their consent for either one of the options. Polavaram project Authority, GWDT and CWC may also look into the issue and assist the states in choosing the most beneficial & safest option among the two.

8. As per information furnished by R & R Commissioner, the total no. of villages affected by project only in Andhra Pradesh (including the seven mandals of Telangana transferred to A.P) is 371 villages in two districts of West Godavari and East Godavari. The rehabilitation of project affected people as per Land Acquisition, Rehabilitation & Resettlement Act 2013 in West Godavari district is under progress while in East Godavari district socio economic survey and the eligibility list of project affected families is yet to be prepared. The committee submits that the WRD and R &R Commissioner shall expedite the matter and the project affected families in AP may rehabilitated as per LARR Act, 2013 within a period of six months.

Also Read: NALSA to organize second National Lok Adalat on July 10

9. The Committee submits to Hon’ble NGT that main issue is apprehensions about the project. In order to clarify all the apprehensions about the project and to address key issues the Polavaram Project Authority (PPA), Central Water commission, Godavari Water Dispute Tribunal & Water Resource Department, Andhra Pradesh jointly within a period of two months may convene a meeting with upstream states namely Telangana, Odisha and Chhattisgarh. During the meeting the upstream States may clarify their apprehensions and put forth the anticipated impacts due to Polavaram project and the same may be examined by PPA & WRD, AP and to devise appropriate mitigative measures to safeguard the dam and as well as interests of upstream states.”

Anitha Shenoy(Sr.Adv.) appearing for  respondent caveat submitted that “your lordships may not stay the proceeding that’s my only request.”

“why are you presuming we want to stay the matter, we have been repeatedly saying we wont stay the matter, if you want we will grant stay, for your submission, alright granted stay,” said the court on a lighter note.

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