Mapithel dam chapter before NGT

Themson Jajo *

Introduction: It was considered an interesting outcome that the five long years of case litigation on Forest & Environmental controversies pertaining to Mapithel dam of Thoubal Multipurpose Project, Manipur lastly arrived to a landmark conclusion as the National Green Tribunal (NGT), Kolkata Bench issued final order on 6th December 2017 in favor of the project affected communities.

The NGT court in that order directed the state project proponents to implement the necessary conditions contained in the Forest Rights (Recognition of Scheduled Tribe and Other Traditional Forest Dwellers Rights) Act, 2006 in acquiring mandatory Forest Clearance. Thus, as per the guidelines, principles, letter of the existing National Green laws and Acts of the NGT court, the project developers are answerable to certain procedures in its initiative to attain Forest Clearance for the Mapithel dam project.

The National Green Tribunal (NGT) came into existence on 2nd June 2010 under the Act, No. 19 of 2010. The NGT court was established for the effective and expeditious disposal of cases relating to environment protection and preservation of forest and other resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or thereto. In short, it’s a fast track court of the Supreme Court of India especially for the forest and environment related cases.

Exodus of Mapithel case before the NGT: Genesis of Mapithel dam case on forest and environment aspect before the Hon’ble National Green Tribunal (NGT) can be traced back to the second half of the year 2013. Initially, a state level consultation was held at Hotel Imphal in July 2013 specifically on violations of Forest and Environmental laws in the construction of Mapithel dam of Thoubal Multi Purpose Project.

Deliberating the perpetrations involves regarding diversion of forest, Compensatory afforestation, Catchment Area Protection under CAT plan, Green Belt around the dam reservoir and necessary procedures required as per various guidelines of Forest & Environment Clearances etc., the participants of different project affected villagers unanimously resolved to file a case before the National Green Tribunal (NGT), Principal Bench, New Delhi.

Consequent upon the unfolding pertinent violations, the first case litigation was made on 3rd August 2013 which was admitted by the NGT Court on 8th August 2013 under M.A No. 646 of 2013 in Original Application No.167/2013 in the case of Themrei Tuithung & 7 Ors VS state of Manipur & Ors. The first and subsequent hearings before the NGT court, violations of Forest Conservation Act, 1980, Forest Protection Act, 1986 and Forest Rights (Recognition of Scheduled Tribe and other Traditional Forest Dwellers rights) FRA, 2006 were ruled out.

Confirming the decade long contraventions of the above mentioned Green acts, the NGT court in its Order dated 20th November 2013 & 18th of December 2013 halted the construction of Mapithel dam stating that, the project shall maintain it’s Status Quo till 23rd January 2014 for necessary compliance of rules as per the existing acts and rules.

The Interim orders were based on the recommendations of the Union Ministry of Tribal Affairs (MoTA), a nodal Ministry regarding Rehabilitation and Resettlement (R&R) and other related matters which clearly stated non-compliance of necessary procedure is a violation of law.

But the MoTA issued another contradictory office memorandum within few days taking U-turn to the previous order which directly substantiated to the later accordance of stage-II final clearance whereby maintained that “The necessary conditions of the FRA, 2006 seems to have been complied in spirit” way back in 1993 which was a wrong basis. Still then, the later controversial memorandum of MoTA virtually paved way to granting the final clearance on 31st December 2013 and subsequent Order of the NGT court on 15:01:2014.

The affected petitioners filed an Appeal petition before the same court on 15th December 2014 against the courts judgment. After several cause of hearing, the Appeal case was disposed off in February 2016. The petitioners found the order immature and perceived it as miscarried justice due to many discrepancies which have not been given in-depth adjudication.

Interestingly, a Review petition was admitted by the same court on 7th April 2016 which was filed on 22nd March 2016. It was confirmed in the course of hearing that Review case, the project developers ever failed to comply the necessary procedures under the conditions enshrined in the FCA, 1980 & FRA, 2006. Thus, the NGT court issued final verdict of the Review case on 6th December 2017, directing the concerned state authorities to fully implement the necessary conditions contained in the FRA, 2006 within three months.

Necessary procedures in acquiring Forest Clearance under FRA, 2006: In implementing the FRA, 2006, the most important thing the project authority has to do is to seek full consent of the affecting community people regarding the proposed forest diversion in question i,e, 595 hectares along with villages under Compensatory Afforestation and Catchment Area Treatment which is still not complied in the Mapithel dam.

As per the Union MoEFCC Circular of 03:08:2009 on FRA compliance under section 3(1)I, 3(1)e and 4(5), a series of documental evidence are required to be enclosed to prove the compliance of FRA. The affected community people have to take their free consideration and decisions on the proposal of forest diversion.

It is the most crucial situations for both the affected community people and the project developers. Community settlers/forest owners have to seriously think over for their long run sustainability on livelihood and environment integrity. If it happens that state Govt. can assure arrangement of the basic long run sustainability, the required consent may be cleared which will be considered clearance criteria being fulfilled. And if the result happened to be in contrary, the so called clearance will be hampered which shall ultimately lead to scrapping the project.

A letter from the state Govt. certifying that the complete process for identification and settlement of rights under FRA has been carried out for the entire forest areas proposed for diversion, with a record of all consultation and meetings held, a letter from the state Govt. certifying that such diversion (with full details of the project and its implications) have been placed before each Gram Sabha, a letter from each of the concern Gram Sabhas, indicating that all formalities have been carried out, and have given their consent to the proposed diversion and the compensatory and ameliorative measures, a letter certifying that discussions and decisions was taken at a quorum of minimum 50% of members of the Gram Sabha present, Obtaining the written consent or rejection, a letter from the state Govt. certifying that the rights of primitive tribal Groups and Pre-Agricultural communities, have been specifically safeguarded as per section 3(1)(e) of the FRA.

Punishable on Contravention NGT Order: Dating back from the day of issuance of the courts final order, 79 days gone without any initiative from the state govt. leaving only 11 days to go to expiry on the time bound of the order. Extending 3 years or impose fines up to 10 crores or, with both if the contravention continues with additional fines which may extend up to 25,000 rupees per day during which such failure or contravention continues after conviction for the first such failure or contravention.

Provided that in case a company fails to comply with any order or award or a decision of the Tribunal under this act, such company shall be punishable with fine which may extend to twenty five crores rupees and in case the failure or contravention continues, with additional fine which may extend to one lakh rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention. Notwithstanding anything contained in the code of Criminal Procedure, 1973, every offence under this act shall be deemed to be non-cognizable within the meaning of the said code (Section 26 & 30 of the NGT Act, 2010).

In conclusion, it is remarkable that the proposed Mapithel dam inauguration plan in March 2018 without implementing the NGT court Order of December 2017 may happen to be one of the worst and bitterest experiences in the state which will leave a history where force system prevails, suppressing rights and aspirations of its own people, undermined the customary laws of the tribal community people and Nation Green laws dishonored.

Moreover, failing to implement the required guidelines under the related Green acts, the project developers are liable to a contempt of court and would deem to punishment under the section 26 of the NGT Act, 2010. On the other hand, 100 years of historic injustice done to the forest depending communities in India will be definitely repeated in Mapithel dam.