Despite the MoEF-appointed Expert Committee having given its categorical recommendation and Report that the canal work should not continue, since there are no final and approved command area development plans for the two projects, the MoEF has not yet taken a decision on same, despite being directed by the Supreme Court to do so.
"In this context, we appeal to you to write to the Ministry to take a logical and scientific decision, within the framework of law to sop the work, at least until the full command area plans area ready and approved and until comprehensive rehabilitation plans for all the affected families are in place. The Ministry must also take a decision on the issue of excluding the river-bank villages from the canal network to minimize displacement and save the best of land" said Medha Patkar, Narmada Bachao Andolan (NBA).
TEXT of LEGAL NOTICE
Date: 17-06-2010
To,
Secretary,
Ministry of Environment and Forests
Paryavaran Bhavan, CGO Complex,
Lodhi Road, New Delhi
Sir,
I, the undersigned, on behalf of and under instructions from Medha Patkar, R/o Narmada Bachao Andolan, 62, Mahatma Gandhi Marg, Badwani, Madhya Pradesh – 451551 and Respondent No. 1 in SLP No. 34065/2009 pertaining to the Indira Sagar and Omkareshwar Canals (hereinafter referred to as my client) do hereby serve you the following legal notice:
1. That, your Ministry is a party before the Hon’ble Supreme Court of India in the aforementioned SLP pertaining to the canals of Indira Sagar and Omkareshwar and as the Secretary of the Ministry, you are well-conversant with the facts and proceedings of the entire case, legal issues involved therein and
the interim orders passed thus far.
2. That the Hon’ble Supreme Court passed an interim Order on 25-02-2010, of which the relevant part reads as follows:
“In the above circumstances, excavation or construction of the Canal work and acquisition of land may go on for the time being; however, it would be subject to approval of the MoEF of the revised plans submitted on 16th October, 2009. The State would be at liberty to file further details regarding the Command Area Development Plans to the MoEF and if such details regarding the Command Area Development Plans are filed, the same may be referred to the Expert Committee for consideration. The Expert Committee to take a decision within a period of six weeks and as soon as the Report is available to MoEF, the MoEF to take decision within a further period of four weeks thereafter”.
3. That it is clear from the above Order that:
(i) The excavation or construction of canal work and acquisition of land was allowed to continue for the time being and was subject to the approval of MoEF;
(ii) The MoEF was to take a decision within four weeks of submission of the Expert Committee’s Report. The said four weeks expired on 23.5.2010. After expiry of four weeks, it was incumbent upon the MoEF to take a decision concerning excavation /construction of the Canal work and acquisition of the land. If there was any further delay (i.e. beyond 23.5.2010) in deciding on “approval” by the MoEF, the Canal excavation/construction work and land acquisition proceedings should have been stopped.
4. You may kindly recall that the Dr. Devender Pandey Committee of Experts, to whom the task of scrutinizing the CAD Plans of GoMP was entrusted, both by the Hon’ble High Court of Madhya Pradesh by its final judgment dated 11-11-2009 (in W.P. No. 6056/2009) and again by the Hon’ble Supreme Court by way of its aforementioned interim order, duly submitted its Appraisal Report to the Secretary, MoEF i.e. yourself on 05-04-2010.
5. That the Report of Dr. Pandey Committee titled ‘Appraisal of the Command Area Development (CAD) Plans of Omkareshwar and Indira Sagar Irrigation Projects in Madhya Pradesh’ categorically concluded that, for the reasons mentioned in its Report, the CAD Plans submitted by the GoMP for the Indira Sagar and Omkareshwar Canals are only an “Expression of Interest” and are not final and complete. To quote from the Committee’s conclusion:
“……The Committee does not consider the draft command area development plans for Omkareshwar and ISP, submitted to the MoEF by MP in October 2009, as adequate in terms of the conditions laid down as part of the environment clearance, and the subsequent stipulations by the MoEF and the NCA ESG. These plans detail only some of the engineering aspects of the command area development activity and the environmental safeguard measures essential for sustainable irrigation development has not been dealt with. Similarly the impact of construction of canal is not provided in the plan and therefore the committee could not assess the impacts of construction on environment such as loss of biodiversity, noise, water and air pollution etc. Therefore, these plans are incomplete and cannot be approved”.
6. That despite such scientific findings and unambiguous conclusion, your Ministry did not take any early decisive action to save the prime agricultural land in the interest of the environment. Instead, you chose to provide a further period of four weeks time to the Madhya Pradesh Government to submit its comments on the Appraisal Report of the Pandey Committee (through your letter dated 23-04-2010).
7. That, since the date of this Interim Order, acquisition and excavation of the fertile agricultural lands, which is mainly in the Sardar Sarovar and Maheshwar affected areas has been going on in the already irrigated river-bank villages causing irreversible damage to the agriculture and environment.
Adequate and approved CAD Plans, in terms of the MoEF’s and Planning Commission’s clearance and other stipulations are a pre-requisite for any canal work in order to optimize the stated benefits and mitigate permanent impacts such as water logging, salinization, degradation of the soil and loss of bio-diversity. You may also kindly note that the High Court of Madhya Pradesh has already stated that the canal-network must be reviewed so as exclude the already irrigated areas, minimize displacement and save best agricultural land and also the state exchequer. That is role your Ministry is expected and mandated to play under the Environment Protection Act, 1986.
8. That the said time of four weeks provided by you to the GoMP has also expired on 23-05-2010. You may kindly note that the Interim Order of the Supreme Court dated 25-02-2010 clearly recognizes the role of the Environment Ministry and the Pandey Committee to appraise the Command Area Plans for the ongoing canal works as a pre-requisite and take a decision within the maximum stipulated period of 10 weeks, (six weeks and four weeks as mentioned in the Supreme Court Order dated 25-02-2010) purely on the basis of enviro-scientific considerations. In the light of the Pandey Committee’s well-reasoned Report, it is necessary, reasonable and justifiable that your Ministry immediately issues stop-work orders, halting the land acquisition and canal excavation, invoking your Ministry’s powers under Section 3 & 5 of the Environment Protection Act, 1986.
9. That the environmental clearance issued by your Ministry to Omkareshwar Project casts a clear responsibility on you to ensure the time-bound and effective compliance with the environmental safeguard measures and even empowers you to revoke the clearance, if such time-bound planning and effective implementation is lacking. The clearance to the Indira Sagar Project by your Ministry also prominently mandates that the command area development studies and planning must necessarily be pari passu with the progress of work on the project.
10. That this Legal Notice is a final reminder to your Ministry to take an immediate decision on the CAD Plans of GoMP based on the Pandey Committee’s appraisal, considering the various clearances, guidelines and stipulations issued by various authorities, including the Planning Commission and your own Ministry. That such action would be in compliance with the orders of the High Court, as well as the Supreme Court, both.
11. That since land acquisition and canal excavation work has been progressing on a war-footing in the agro-rich black-cotton soil areas of the Nimad region and your Ministry alone shall be responsible and bear the consequence for any irreversible impacts on or damage to the agriculture, environment and livelihoods and such delay will also be in violation of the Order of the Hon’ble Supreme Court.
12. You are therefore, requested to take an immediate decision/action in compliance with the Supreme Court Order dated 25-02-10 with regard to approval of the revised plans submitted on 16-10-09 with further details by the State of Madhya Pradesh. The decision, in the circumstances, ought to be taken within a period of one week. Meanwhile, the ongoing work of excavation/ construction of canals and acquisition of land should be stopped. My client has issued this legal notice after making all requests for immediate action and even through this legal notice my client is emphasizing on compliance of the Supreme Court Order and the law in order to avoid any action in the Court which my client will be constrained to take, if non-action at your end continues.
Yours sincerely
Medha Patkar