E.A.S.Sarma Visakhapatnam
14-40-4/1 Gokhale Road March 1, 2011
Maharanipeta
Visakhapatnam 530002
Tel. Nos. 0891-6619858/ 9866021646
To
Shri Jairam Ramesh
Minister of State
Ministry of Environment & Forests
Govt. of India
Dear Shri Ramesh,
Subject:- Kakarapalli- East Coast Energy Pvt. Ltd. (ECEPL)- Illegal allotment of a wetland for a power project
I welcomed your statement in the Parliament yesterday in my letter of March 1, 2011. I enclose a copy of that letter to refresh your memory.
I have carefully gone through your Ministry’s letter No. J-13011/36/2008-IA-II(T) dated 1-3-11. It has raised more doubts in my mind than I had earlier. I will explain my apprehensions below.
Your statement that the Kakarapalli project is located within a wetland system is on record in yesterday’s proceedings of the Parliament. It was factually a correct statement. This is what the National Environment Appellate Authority (NEAA) had categorically stated in its order of July 9, 2010. This is an issue on which NEAA had come to a clear finding. Unless it is challenged, it cannot be reopened by anyone, neither by MOEF nor by EAC.
The National Environment Policy approved by the Union Cabinet has mandated the conservation of wetlands in accordance with the Constitutional directive under Article 48A. As the Minister in charge of MOEF, you are bound by the spirit of that Article and the avowed policy of the government. You have no freedom to find “trade offs” between environment and an ongoing project. Fait accompli cannot justify an illegality already committed. As I had pointed out, the company in this case had defied the law right from the beginning; first by starting construction without prior environment clearance; then by misleading MOEF on its surrender of 500 acres only to bring in surreptitiously a new power project; after that, by retaining more land than assured to EAC and finally by diverting water unauthorisedly to affect the interests of the fishermen and the farmers. A company that has repeatedly breached the trust reposed in it by the government should not be condoned as it would then set a bad precedent for others to breach the trust likewise.
Once you have categorically admitted that the project site was wrongly located in a wetland, the doctrine of public trust, a well established judicial principle, will automatically apply and the alienation of the land in violation of that principle will vitiate the environment clearance based on such an irregular land allotment. There is no abridgement to this principle, as so clearly laid down by the Hon’ble Supreme Court in Civil Appeal 1132/2011 in SLP © No. 3109/2011. I have provided you a copy of that judgement. The government is obligated to implement the direction issued by the Hon’ble Court. Even otherwise, the government is merely a trustee of public lands. It cannot alienate such public lands to private parties.
Against this background, what do you expect EAC to do? Considering our past experience with EAC’s proceedings, I have no high expectations from that body. My Right to Information application to your Ministry has shown that MOEF has not cared to ascertain the conflict-of-interest aspect in the case of each member of EAC. If EAC is going to confine itself to a quick verification of the fulfillment of NEAA’s conditions, it will fail to answer the larger questions I have raised above. EAC may not be in a position to appreciate the seriousness of the larger questions which are more important.
I am sure the company will respond to your letter of yesterday in its own characteristic way and EAC will consider their verision in its own steriotypede manner! When its own Sub-Group advised EAC against the project in 2008, EAC chose to accept the company’s version in toto and recommend the project for clearance. We do not want a repeat of that again!
Since NEAA has found the project site to be a wetland and since you have agreed with it before the Parliament and since no industry can be set up in such a wetland, the environment clearance issued wrongly should be ab initio considered to be erroneous and rescinded without referring the matter to EAC. One gets the impression that MOEF is merely trying to tide over a difficult situation, without adequate application of mind, by referring the matter conveniently to EAC, without looking into the core issues that arise from Article 48A and the National Environment Policy. We are aware that EAC has cleared more than 95% of the projects referred to it during the last couple of years. We are aware that EAC has cleared more than 1,50,000 MW of coal-based capacity during the last four years, without caring to insist on cumulative impact analysis and without caring to examine the impact of radioactive isotopes in coal, about which I have written to you ad naseam. How can we expect EAC to evaluate these prohjects in a truly objective and scientific manner?
Some of us have brought these issues to your attention repeatedly during the last two years without any satisfactory response. Should the government wake up only when people lose their lives? It happened at Sompeta where some of us had to approach the quasi-judicial authorities to get the clearance set aside. It has happened once again at Kakarapalli. You are aware that two more projects, one at Komarada in Vizianagaram district and another near Vizag (Hindujas) stand on a somewhat similar footing. The irregularities are glaring. EAC chose to ignore my plea in the case of Komarada. You have not responded in the case of Hinduja. I have brought all the irregularities to your notice but MOEF is yet to act. I have alerted you in the case of Nellore where a large pollution cauldron is awaiting to emerge. MOEF does not seem to worry much about the need to carry out a cumulative impact analysis or an evaluation of the impact of radioactivity in coal. The well established Precautionary Principle in law enjoins upon the government the burden to look into such important concerns, rather than shift that burden conveniently to the people.
In my view, the best persons to judge the environment impact of the Kakarapalli project are the fishing community of Vaddithandra village who have gone through untold misery, distress and trauma during the last one week or so. I have repeatedly advised the State and you personally to heed to their feelings and concerns without any response from you. Look at what has happened there. It is a black mark on our democratic system. We do not seem to learn lessons easily. Still the Chief Minister of AP is harping on the misleading thought that Kakarapalli is not a wetland, taking cue from one solitary report of your Bangalore team that had no expertise in assessing wetland conditions! Does the government represent the people or the private companies? Perhaps, the CM's advisors are unable to render proper advice to him, as they may not be aware of the Constitutional niceties thar are involved in such matters.
Mr. Jairam Ramesh, your intervention this time in the Parliament was belated but positive. However, by referring the matter to EAC, you have not allayed our major concerns. The whole Kakarapalli affair is characterized by breach of the law of the land, deceipt and infringement of public trust. EAC’s verdict may not help.
I hope you will appreciate these genuine worries that we entertain. I hope that what you will do in the case of Kakarapalli will uphold the law of the land. I hope that you, instead of waiting for people to cry hoarse, correct the illegalities already committed in the case of Komarada, Hinduja’s project near Devada and, of course, the mayhem of the polluting projects near Krishnapatnam in Nellore district.
Regards,
Yours sincerely
E.A.S.Sarma
Former Secretary to GOI
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E.A.S.Sarma14-40-4/1 Gokhale RoadMaharanipetaVisakhapatnam 530002Mobile: 91-9866021646
E.A.S.Sarma
14-40-4/1 Gokhale Road
Maharanipeta
Visakhapatnam 530002
Tel. Nos. 0891-6619858/ 9866021646
To
Shri Jairam Ramesh
Minister of State
Ministry of Environment & Forests
Govt. of India
Dear Shri Ramesh,
Subject:- Kakarapalli- East Coast Energy Pvt. Ltd. (ECEPL)- Illegal allotment of a wetland for a power project
I welcomed your statement in the Parliament yesterday in my letter of March 1, 2011. I enclose a copy of that letter to refresh your memory.
I have carefully gone through your Ministry’s letter No. J-13011/36/2008-IA-II(T) dated 1-3-11. It has raised more doubts in my mind than I had earlier. I will explain my apprehensions below.
Your statement that the Kakarapalli project is located within a wetland system is on record in yesterday’s proceedings of the Parliament. It was factually a correct statement. This is what the National Environment Appellate Authority (NEAA) had categorically stated in its order of July 9, 2010. This is an issue on which NEAA had come to a clear finding. Unless it is challenged, it cannot be reopened by anyone, neither by MOEF nor by EAC.
The National Environment Policy approved by the Union Cabinet has mandated the conservation of wetlands in accordance with the Constitutional directive under Article 48A. As the Minister in charge of MOEF, you are bound by the spirit of that Article and the avowed policy of the government. You have no freedom to find “trade offs” between environment and an ongoing project. Fait accompli cannot justify an illegality already committed. As I had pointed out, the company in this case had defied the law right from the beginning; first by starting construction without prior environment clearance; then by misleading MOEF on its surrender of 500 acres only to bring in surreptitiously a new power project; after that, by retaining more land than assured to EAC and finally by diverting water unauthorisedly to affect the interests of the fishermen and the farmers. A company that has repeatedly breached the trust reposed in it by the government should not be condoned as it would then set a bad precedent for others to breach the trust likewise.
Once you have categorically admitted that the project site was wrongly located in a wetland, the doctrine of public trust, a well established judicial principle, will automatically apply and the alienation of the land in violation of that principle will vitiate the environment clearance based on such an irregular land allotment. There is no abridgement to this principle, as so clearly laid down by the Hon’ble Supreme Court in Civil Appeal 1132/2011 in SLP © No. 3109/2011. I have provided you a copy of that judgement. The government is obligated to implement the direction issued by the Hon’ble Court. Even otherwise, the government is merely a trustee of public lands. It cannot alienate such public lands to private parties.
Against this background, what do you expect EAC to do? Considering our past experience with EAC’s proceedings, I have no high expectations from that body. My Right to Information application to your Ministry has shown that MOEF has not cared to ascertain the conflict-of-interest aspect in the case of each member of EAC. If EAC is going to confine itself to a quick verification of the fulfillment of NEAA’s conditions, it will fail to answer the larger questions I have raised above. EAC may not be in a position to appreciate the seriousness of the larger questions which are more important.
I am sure the company will respond to your letter of yesterday in its own characteristic way and EAC will consider their verision in its own steriotypede manner! When its own Sub-Group advised EAC against the project in 2008, EAC chose to accept the company’s version in toto and recommend the project for clearance. We do not want a repeat of that again!
Since NEAA has found the project site to be a wetland and since you have agreed with it before the Parliament and since no industry can be set up in such a wetland, the environment clearance issued wrongly should be ab initio considered to be erroneous and rescinded without referring the matter to EAC. One gets the impression that MOEF is merely trying to tide over a difficult situation, without adequate application of mind, by referring the matter conveniently to EAC, without looking into the core issues that arise from Article 48A and the National Environment Policy. We are aware that EAC has cleared more than 95% of the projects referred to it during the last couple of years. We are aware that EAC has cleared more than 1,50,000 MW of coal-based capacity during the last four years, without caring to insist on cumulative impact analysis and without caring to examine the impact of radioactive isotopes in coal, about which I have written to you ad naseam. How can we expect EAC to evaluate these prohjects in a truly objective and scientific manner?
Some of us have brought these issues to your attention repeatedly during the last two years without any satisfactory response. Should the government wake up only when people lose their lives? It happened at Sompeta where some of us had to approach the quasi-judicial authorities to get the clearance set aside. It has happened once again at Kakarapalli. You are aware that two more projects, one at Komarada in Vizianagaram district and another near Vizag (Hindujas) stand on a somewhat similar footing. The irregularities are glaring. EAC chose to ignore my plea in the case of Komarada. You have not responded in the case of Hinduja. I have brought all the irregularities to your notice but MOEF is yet to act. I have alerted you in the case of Nellore where a large pollution cauldron is awaiting to emerge. MOEF does not seem to worry much about the need to carry out a cumulative impact analysis or an evaluation of the impact of radioactivity in coal. The well established Precautionary Principle in law enjoins upon the government the burden to look into such important concerns, rather than shift that burden conveniently to the people.
In my view, the best persons to judge the environment impact of the Kakarapalli project are the fishing community of Vaddithandra village who have gone through untold misery, distress and trauma during the last one week or so. I have repeatedly advised the State and you personally to heed to their feelings and concerns without any response from you. Look at what has happened there. It is a black mark on our democratic system. We do not seem to learn lessons easily. Still the Chief Minister of AP is harping on the misleading thought that Kakarapalli is not a wetland, taking cue from one solitary report of your Bangalore team that had no expertise in assessing wetland conditions! Does the government represent the people or the private companies? Perhaps, the CM's advisors are unable to render proper advice to him, as they may not be aware of the Constitutional niceties thar are involved in such matters.
Mr. Jairam Ramesh, your intervention this time in the Parliament was belated but positive. However, by referring the matter to EAC, you have not allayed our major concerns. The whole Kakarapalli affair is characterized by breach of the law of the land, deceipt and infringement of public trust. EAC’s verdict may not help.
I hope you will appreciate these genuine worries that we entertain. I hope that what you will do in the case of Kakarapalli will uphold the law of the land. I hope that you, instead of waiting for people to cry hoarse, correct the illegalities already committed in the case of Komarada, Hinduja’s project near Devada and, of course, the mayhem of the polluting projects near Krishnapatnam in Nellore district.
Regards,
Yours sincerely
E.A.S.Sarma
Former Secretary to GOI
--
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