Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

ACADEMIC SESSION: 2022-2023

ENVIROMENTAL LAW

CASE BRIEF OF

ALAKNANDA HYDRO POWER CO. LTD. V. ANUJ JOSHI

Submitted to: Submitted by:

Dr. Amandeep Singh Saddhvi Nayak

Associate Professor (Law) 200101114

RMLNLU 6th semester (Section B)

B.A.LLB.(Hons.)
 CONTENTS

S.NO. Topic Pg.NO.

1. Declaration 3
2. Acknowledgement 4

3. Background 7

4. Facts 7-9

5. Issues 9-13

6. Questions Raised 13

7. Judgement 13-15

8. Conclusion 15-16
 DECLARATION

I hereby declare that the project work entitled “Case Brief Of

Alaknanda Hydro Power Co. Ltd. v. Anuj Joshi” submitted to
the Dr. Ram Manohar Lohiya National Law University,
Lucknow is a record of an original work done by me under the
guidance of Dr. Amandeep Singh, faculty of law, the Dr. Ram
Manohar Lohiya National Law University and this project is
submitted in the partial fulfillment of the requirements for the
award of the degree of B.A.L.L.B (Hons.). The results embodied
in this have not been submitted to any other University or
Institute for the award of any degree or diploma.
 ACKNOWLEDGEMENT

This research paper would not have been accomplished without the
generous contributions of individuals. First of all, I express my gratitude
to the Almighty, who aided me with his strength, wisdom and patience to
complete this project as a term paper.

Additionally, I express my gratitude and deep regards to my teacher Dr.

Amandeep Singh for giving me the freedom to work on “Case Brief Of
Alaknanda Hydro Power Co. Ltd. v. Anuj Joshi” and also for his
exemplary guidance, monitoring and constant encouragement
throughout the course of this research paper.

I would also like to thank the authorities of Dr. Madhu Limaye Library
who provided the remote access of the library to provide the research
material.

Moreover, I also thank all my batchmates and seniors who aided me

along the way, and my family and friends for their constant
encouragement without which this assignment would not have been
possible.

I know that despite my best effort some discrepancies might have crept
in which I believe my humble professor would forgive.

THANKING YOU ALL.

Saddhvi Nayak.
 BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL
BENCH AT NEW DELHI, NEW DELHI

Original Appliction No. 03 of 2014

In the matter of:

1. Srinagar Bandh Aapda Sangharsh Samiti

Through its Vice President Shri Prem Ballabh kala
Prem Bhawan Near ITI
Bhaktiyana, Srinagar
District Pauri, Uttarakhand.
2. Vimal Bhai
Convenor, Matu Jansangthan
D-334/10 Ganesh Nagar,
Pandav Nagar Complex,
Delhi- 110092. ……Applicants
Versus
1. Alaknanda Hydro Power Co. Ltd.
Through its Managing Director
Srikot, Srinagar, District Pauri,
Uttarakhand- 246174.
2. Union of India
Through The Secretary
Ministry of Environment and Forests
Government of India
Paryavaran Bhawan, C.G.O. Complex
Lodhi Road, New Delhi- 110003.
3. State of Uttarakhand
Through the Principal Secretary (Forests)
Civil Secretariat, Dehradun -248001,
Uttarakhand.
4. Bharat Jhunjhunwala
R/O Lakshmoli, PO Maletha
Via Kirti Nagar District
Tehri- 249161 Uttarakhand. ……Respondents

Counsel for appellant:

Mr. Rahul Choudhary, Advocates for appellant

Counsel for respondents:

Mr. M.L. Lahoti and Ms. Rashmi Chatterjee,
Advs. For respondent no. 1
Mr. Vivek Chib and Mr. Ankit Prakash, Advs.
For respondent no. 2
Mr. Rajiv Nanda, Mr. Manish Kumar Vikkey,
Advs. For respondent no. 3

Present:
Hon’ble Mr. Justice U.D. Salvi (Judicial Member)
Hon’ble Prof. A.R. Yousuf (Expert Member)
 ALAKNANDA HYDRO POWER CO. LTD. V. ANUJ
JOSHI
BACKGROUND
The 330 MW Srinagar Hydro Electric Project (a hydroelectric power plant) is
built on Alaknanda river, located in Srinagar, in Pauri Garhwal district,
Uttarakhand. The project was granted permission by director and member secretary
environmental appraisal committee on certain conditions, keeping in mind the
safeguard of people. The ownership of the plant lies with Alaknanda Hydro Power
Corporation Limited, a GVK Group company.
FACTS
In the state of Uttarakhand, excessive rainfall and weather conditions happened
during the middle of June 2013. A monumental tragedy happened in the state. A
large number of people living alongside the river and in the hilly regions witnessed
nature in its very crucial state and a large number of people were left homeless and
displaced.1
An organisation formed by the residents of Srinagar district Pauri and Vimal Bhai
(convener of Mattu Jansangathan) raised various issues regarding environment
have filed this application to make the Alaknanda hydropower company pay the
compensation for the damage suffered in terms of loss of life and property by the
members of the Srinagar Bandh Aapda Sangharsh Samiti. It was submitted by
the applicants that the devastation caused because of the flood was spread over an
area in Srinagar District Pauri namely, Shaktibihar, Lower Bhaktiana, Chauhan
Mohalla,Gas Go down, Food Go down, SSB, ITI, Resham Farm, Roadways Bus
Stand, Nursery Road, Alkeshwar Temple, Gram Sabha Ufalda’s Fatehpur Reti,
Sriyantra Island Resort and other places including government quarters. Srinagar

1
Kartikey Hari Gupta, Sustainable Development Law: The Law for the Future, (Partridge India, 14 May 2016)
hydroelectric power project is a river scheme which involves the construction of
63m high dam across the river Alaknanda, 800m long diversion tunnel and 4.8m
long power channel for generating 200MW of power causing 300ha of land. On
3rd May, 1985 the project got its clearance letter issue by director and member
secretary environmental appraisal committee on certain conditions.
It is the case of the applicant that the respondent no. 1, Alaknanda hydro
power co. ltd inappropriately dumped a massive quantity of muck from the
construction in the front gate of the dam without taking necessary steps to
secure such muck from flood. According to the appellant due to heavy rainfall,
between 16 June to 17th June 2013, the reservoir of the Srinagar hydroelectric
project was filled due to heavy rainfall. The gates were kept closed by AHCL
which led to accumulation of water and as result opening of the gate led to massive
flow of water suddenly sweeping away muck dumped in the river bed by the dam
authorities and carrying it to the villages.
What led to further damage was that project proponent failed to even construct a
retention wall. The area being filled with 8 feet high muck led to massive loss to
property as well people. Rs. 9,26,42,795/ were claimed by the applicant for the
damage suffered by its member and residents of the Srinagar, taking into the
account, the losses and expense’s incurred in removal of the muck and in
restoration of property as per the list at annexure A-5 to the application. A vide
letter dated 13 august ,2013 was sent by the applicants to the respondent no.1
regarding the claim for damages from the company but having got no relief from
the respondent no.1, they wrote a letter dated 18th August, 2013 to the Ministry of
Environment and Forest, Government of India, Ministry of Engineering, Ministry
of Water Resources, Chief Minister, Uttarakhand, Commissioner, Mandal Pauri,
District Magistrate Tehri Garhwal, District Magistrate, Garhwal to consider their
demands for restoration of the area upon removal of the muck and making the
place habitable and payment of compensation to the affected persons. They also
requested for taking of preventive measures such as construction of protection wall
along the river from Srikotto Maldia prior to the completion of Srinagar HEP.2
ISSUES
Whether the hydroelectric project had impact on environment and it contributed to
the Uttarakhand disaster?
Keeping in view the issues raised by the appellants, on 13 march, 2014 the
respondent no.1 resisted the application by saying that the victims of the tragedy
were already duly compensated by the state of Uttarakhand and furthermore titled
the incident as the “act of god”3 and the project can’t be held liable for the
damages as itself have suffered major losses. Respondent no.1 said that the flood
was a result of snowfall ahead of cloudburst on the banks of Chorabari Lake near
Kedarnath causing large scale calamity resulting in massive human and property
loss. Thus, the hydropower project can’t be blamed for the tragedy.
It was further contended by the responded no.1 that its project has arrested huge
sediment to an extent of 26 million cubic meters flown from the upstream and in
fact protected the upstream areas like one in the present case from being washed
away as it happened in upstream area of the water basin.
Hon’ble Apex Court in Alaknanda’s case reported in (2014) 1 SCC 769,
keeping in mind all the facts gave following directions-
1. MoEF was directed that until further orders, no environmental clearance or
forest clearance shall be granted by the state of Uttarakhand for any
hydropower project.
2
Alaknanda Hydro Power sinagar flood 2013 NGT judgement.pdf, available at:
http://www.indiaenvironmentportal.org.in/files/Alaknanda%20Hydro%20Power%20sringar%20floods
%202013%20NGT%20Judgement.pdf
3
The term “Act of God” cannot be given a wide connotation so as to include every inexplicable human error or
other unexplained incidents and must be confined to acts caused by natural elements such as storms, floods,
lighting, earthquake and such other acts of nature which a man is unable to foresee and prevent. Union of India v.
Kothari Trading Co. AIR 1969 Ass 84 (88).
 2. MoEF was directed to form an expert committee consisting of
representatives of the State Government, WII, Central Electricity Authority,
Central Water Commission and other expert bodies to make a detailed study
on the contribution of hydroelectric power projects to the environmental
degradation.
3. MoEF was directed to examine the impact of proposed 24 projects on the
biodiversity of Alaknanda and Bhagirathi River basins.
4. The court asked The Disaster Management Authority, Uttarakhand to submit
a report, as to whether they had any disaster management plan in place in
Uttarakhand and how effective that plan was for battling the present
unprecedented tragedy at Uttarakhand.

In its reply to the issuance of section 5 under EP act4, the respondent no.1 said
that all the conditions imposed on the project under this section is inadequate. Thus
the tribunal directed MoEF to appoint an expert committee to look into the matter.
The expert committee came to the conclusion that complying with Muck
Management Plan prepared by IIT Roorkee and approved by the Forest
Department of State of Uttarakhand. Further A.D .N. Rao also appointed to visit
the site and submit the report, which again showed the project proponent as fully
compliant. Another committee to MoEF was appointed by the tribunal which
concluded the project proponent as compliant. Finally, on 13th august the Hon’ble
Supreme Court vide Judgment dated was pleased to dispose of the SLP and the
cases transferred from the Tribunal together and gave permission to continue with
the project work. It was contented by the project proponent that during the flood at
no point of time the gates were closed, which led to filling up of the reservoir. The

4
Power to give directions; 5 (a) – the closure, prohibition or regulation of any industry, operation or process. 5(b)
stoppage or regulation of the supply of the electricity or water or any other service.
Project proponent in its reply gave account of muck disposal sites as approved by
State Forest Department of Uttarakhand.

It was revealed by the respondent no.1 in its reply that no muck was eroded from
the muck sites other than sites no .6 and 9.

The project proponent confirming that the river had changed the course towards
right sites at location no. 9 in spite of the deflectors installed by Central Water
Commission for protection of the bank and the river course hit the site no. 9
overtopping the toe wall and part of the original land mass situate on the right bank
of the river got eroded during the heavy flow of flood water which took way the
muck from site no. 9.5 It was added by the respondent no.1 that other than mock
disposal locations, the flood water had eroded by many other locations also and the
reason behind high slit concentration levels witnessed during the flood was due to
huge landslides in Mandakni basin. A brief reply dated 12th march 2014 came
from the respondent no.2 (ministry of environment and forests), shifting the burden
of compensation to respondent no.1 and 2 on the ground that the case pertains to
the said respondents.

The Applicant filed rejoinder dated 30th April, 2014 and denied the arguments
presented by the respondent no.1. The applicant further pointed towards the
negligence shown by the respondent no.1 in enforcing the muck disposal
management in a proper way.

The learned counsel Mr. Dutta, appearing for the applicant submitted that just
getting the approval to muck disposal plan doesn’t mean that it was complied by
the respondent no.1. He pointed out that due to the negligence shown by

5
Alaknanda hydropower Srinagar floods 2013 NGT judgement, available at:
http://www.indiaenvironmentportal.org.in/files/Alaknanda%20Hydro%20Power%20sringar%20floods
%202013%20NGT%20Judgement.pdf .
respondent no.1 in complying with muck disposal plan, the company can’t take the
plea of “act of god-vis major”. He further said that the tribunal should invoke the
principle of no fault liability under section 17 (3)6 of NGT and charge respondent
no.1 with responsibility to pay the compensation for the damages suffered by the
applicants. The Respondent No. 4- Bharat Jhunjhunwala submitted that the volume
of the muck in the river bed increased the flood levels and as such the flood levels
in floods of 2013 exceeded the flood of 1970. He pointed out from geo chemical
analysis of the sediments in the affected area that 23 % contribution of the
sediments was from the muck.

Learned counsel Lahothy considering various reports claimed that the Respondent
No.1 had taken all steps to secure the muck and there was sudden rise in the flood
river due to cloud burst “An Act of God - Vis Major, which led to devastation for
which the respondent no.1 can’t be held liable. It was revealed from the Report of
April, 2014 on “Assessment of environmental degradation and impact of
hydroelectric projects during June 2013 disaster in Uttarakhand” that the
contribution of Phyllite in the River bed sediments between Koteshwar (below
barrage) to downstream of Kriti nagar varies from 47% to 23% which was
generated from digging and the canal and power house excavation and was kept at
10 locations along the river bank. It was further observed that these muck erosions
raised the level of water. The contra view of Dr. Das, Co-Chair of expert
committee points out that 8Km of urban area was impacted by the sediment laden
flow which came from suspended sediment mostly from landslides and bank
erosion of Mandakini and Alaknanda and even in the absence of the massive the
Srinagar project, a massive disposition would have been collected on the lower
terraces of Srinagar urban area from the suspended sediments.

6
Section 17 (3), NGT: The Tribunal shall, in case of an accident, apply the principle of no fault.
 QUESTIONS RAISED

The question raised was, who should be held liable for the damages caused by the
flood, resulting in massive human and property loss?

Whether the claim of Alaknanda hydropower company of labelling the tragedy as

an ‘act of god’ is valid or the claims of the appellant in accusing the Alaknanda
hydropower company for dumping inappropriately the large amount of muck in
front of the dam, which swept away with the massive flow of water when the gates
of the dam were opened, should be considered valid?

Who will pay the compensation and how much should be the amount of the
compensation? Failure of the whole system has also raised an important question:
after constructing such dams in an area as vulnerable as this, can the entire safety
mechanism be completely dependent on technology alone?

JUDGEMENT

It was undisputed that the flood in Uttarakhand was caused due to cloud burst in
upper reaches of river Alaknanda but it was in the knowledge of respondent no.1 –
Alaknanda hydropower company ltd that it was built on a highly sensitive area,
where cloud burst was not a rare event. Being aware of these facts, timely
protective measures should have been taken. The Hon’ble Apex Court in its order
rejected the plea made by the respondent no.1 that the damage caused should fall
under the act of god.

Even assuming the disaster of June, 2013 as the one involving fortuitous or sudden
or unintended occurrence the injury that has resulted from such occurrence, to the
human habitation needs to be regarded as the one resulted while handling the said
plant or the process leading to manufacturing of power and, therefore, it is an
“accident” within the meaning of said definition under Section 2 (a) of the NGT
Act, 2010. In the given facts and circumstances, therefore, the principle of No
Fault Liability under Section 17(3) of the NGT Act, 2010 makes the respondent
no.1- Alaknanda Hydro Power Co. Ltd. liable to pay compensation for the injury
caused to the human habitation.

Going by the geochemical analysis the muck that was found was about 30 percent,
which proves the involvement of the respondent no.1 in the damages being caused.
Nothing could prove that these structures were affected in the floods previously.
Thus in such circumstances, there was no escape from the liability incurred as
aforesaid. The court, therefore, passed the following order:-

1. The court asked the respondent no.1 – Alaknanda hydropower co. ltd. To
pay the compensation of Rs 9,26,42,795/- to the victims of flood of June
2013 in Uttarakhand, with the Environmental Relief Fund Authority
established under Section 7 (a) of Public Liability Insurance Act, 1991
within a period of 30 days from the date of this order.
2. Amount of Court fee payable i.e. 1% of the amount of compensation
awarded shall be deducted from the said deposited amount and remitted to
the Registrar, National Green Tribunal as per Rule 12 of the National Green
Tribunal (Practice and Procedure) Rules, 2011.
3. Necessary directions were to be issued by the respondent no. 3, State of
Uttarakhand to the to the District Magistrate of District Pauri to appoint a
senior Sub-Divisional Magistrate to claims from the persons as per list
annexed as annexure A-5 with necessary proof in support of their claims.
The SDM so deputed shall verify the claims made in light of the proofs
produced and remit the amount due to such person/s after deduction
therefrom the proportionate 1% amount of Court fees payable as per list
 annexure A-5 on finding the claim to be meritorious. Claims shall be called
by publishing a notice, therefor in the office of the District Collector,
Srinagar Municipal Corporation and on the website of the State of
Uttarakhand. No Claim filed after 90 days of publication of such notice shall
be entertained by the District Magistrate. Balance amount remaining in
environment relief fund after disbursement of the amount as aforesaid shall
be utilised for taking such measures for restoration of the public property
affected by the floods.7
4. 1 lakh shall be paid to each appellants as well as respondent no.4 by the
respondent no.1.
5. Original Application no. 3 of 2014 thus stands disposed of.

CONCLUSION

The whole series of episodes with the various twists and turns show the most
unfortunate consequence of total failure of our environmental governance.8

A new ground for the ‘polluter pays’ principle9 was covered by The National
Green Tribunal (NGT) by invoking it in its landmark judgment on Alaknanda’s
case. Nearly 100 such dams have been proposed in the hills, even as locals and
environmentalists have been crying hoarse about the safety and dangers of having
them in the fragile mountains. But the state and central governments never paid
attention to it. The NGT’s Judgment is the first one to fault hydro power projects

7
Srinagar Hydroelectric Project on Alaknanda river, UK, India, available at: https://ejatlas.org/print/srinagar-hydro-
electric-project-india .
8
Two years of uttarakhand flood disaster of June 2013: Why is state and centre gambling with Himalayas and the
ganga and lives of millions, available at: https://sandrp.in/2015/06/18/two-years-of-uttarakhand-flood-disaster-of-
june-2013-why-is-state-centre-gambling-with-the-himalayas-the-ganga-lives-of-millions/ .
9
Enacted to make the party responsible for producing pollution responsible for paying for the damage done to the
natural environment.
for damage caused during Uttarakhand floods and impose an environmental
compensation.

The judgments in this case proved how NGT has used its power to fix liability and
hold private companies responsible for the environmental damage they cause. This
judgment has set a precedent by shifting the monetary responsibility of
retrieving ecological damage from the government to the private actors, who
are responsible for the damage. The decision as a result would eventually save
taxpayer money. Also, it would deter private companies from playing safe always
under the cover of governmental apathy. Official acknowledgment of the fact that
dams contribute to flooding will boost the cause for those who are against building
dams. Ritwick Dutta, an environmental lawyer who served as counsel in the case,
stated that that Indian jurisprudence is not very well developed when it comes to
assessing environmental damage. He added that in such cases the “evidentiary
burden also falls on the petitioners.” He acknowledged that though litigiousness is
very common in Western countries and accommodated in their legal systems, this
culture of litigiousness has not reached India in the same way. The overburdened
status of Indian jurisprudence and the consequent slow processing of cases acts as
another deterrent for potential petitioners or applicants.10 One wonders what
Rs.9.26 crore can do when the scale of the tragedy was so extensive. Yet a
beginning has been made to fix accountability and hopefully this will make
companies more responsible in future.

10
Landmark NGT Judgments Hold Private Firms, Not God or Government, Responsible, available at:
https://thewire.in/environment/ngt-gvk-delta-polluter .