DAMODARAM SANJIVAYYA NATIONAL

LAW UNIVERSITY
LAND LAWS

PROJECT ON:

BHAVANAPADU THERMAL POWER PROJECT: CASE

ANALYSIS
SUBMITTED BY:

NAME: UDAY KRISHNA

Semester: NINTH semester.

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 CERTIFICATE

I, Uday krishna with registration number – 2013123, of VII semester has prepared this case analysis
on “Bhavanapadu Thermal Power Project”. In the partial fulfilment of my semester course in the
subject “LAND LAWS” during the academic year 2017-18 under supervision and guidance of
Mrs.K.Sudha

(SIGNATURE OF THE SUDENT)

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ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the
completion of the project.

My deepest thanks to Lecturer Mrs.Sudha Guide of the project, for guiding and correcting
various documents of mine with attention and care.She has taken pain to go through the project
and make necessary correction as and when needed. I would also thank my Institution and my
faculty members without whom this project would have been a distant reality.

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 TABLE OF CONTENTS

Introduction 5

Background Of The Case 7

Grounds for Appeal 9

Issue 9

Ratio 9

Judgement 10

Reasoning 11

Analysis Of Judgement 13

Criticism 14

Current Status Of Project 14

Conclusion 18

Bibliography 19

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INTRODUCTION:

Bhavanapadu Thermal Power Project is a proposed 2640 (MW) coal plant promoted by East
Coast Energy at Srikakulam district in Andhra Pradesh, India. Land requirement for the project
will be 1995 acres, which includes 35 acres of land for the colony near Tekkali Town. The
project will use blended coal, Indian: Imported in the ratio of 70:30 for the first phase of
1320MW of the project.

For phase – II of the project-imported coal will be used. Imported coal requirement for both the
phases will be 5.838 MTPA. Indigenous washed coal requirement will be 4.34 MTPA. Imported
coal will be transported by sea to the dedicated Jetty at Meghavaram village and indigenous
washed coal will be transported through railway to the project.

The Sea water requirement is 155.12 cusec. There would be no fresh water requirement.

The project has been the target of multiple protests, resulting in two killings and halting of
construction by the India government in 2011.The power station was listed as deferred in 2012.

According to project developer Athena Energy, "stage-I of the plant is expected to be

commissioned in December 2015 and stage-II is expected to be commissioned in 12 months
thereafter."

According to a 2014 article, the India Cabinet Committee on Investment is considering financing
a "1,320 MW Bhavanapadu Thermal Power Project", but did not mention the additional 1320
MW, suggesting it may have been shelved.

According to the India government in November 2016, units 1-2 are planned for operation in
mid- to late 2017. Delays are attributed to "Law & Order problem, financial problem of the
company, acquisition of balance land for sea water intake & railway siding."

According to the India government in March 2017, units 1-2 are now planned for 2018, with
work still held up primarily due to financial issues.1

Objective of the Study

1
http://www.eastcoastenergy.in/ last accessed: 27/10/18

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The scope of the project is to analyse the thermal power project that was permitted by the
government in Bhavanapadu. The criticism of the case at hand is also been included in the
project.
Research Methodology
The research shall be doctrinal in nature where the primary means of resources used would be
books and articles in order to complete the case study being conducted.

Hypothesis
The project is basically a case study of MandapakaNarsinmha Rao V. Union of India. The case
study here deals with the issues relating to the environmental aspects and also the land granting
issues. This project critically analyses the issues dealt by the National Environmental Appellate
Authority.

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BACKGROUND OF THE CASE:

For the plant to be commenced there was a need for the environmental clearances (EC) that are
to be acquired from the Ministry of Environment. The Ministry of Environment and Forests
grants prior environmental clearances to projects or activities on recommendations of the Expert
Appraisal Committees (EAC). Several categories exist under the Ministry for projects related to
Mining, Nuclear energy, Coal and Thermal energy, Hydroelectric etc. Each category has an EAC
to assess projects in its category. The EAC shall scope and appraise these projects or activities
and issue the environmental clearance (EC). So the EAC is the apex body here with almost a
dozen members and a chairman and this decides the clearances. It is interesting then to see that
EACs generally are headed by former bureaucrats and those who have nothing to do with
environmental issues.2

The 2640 MW Bhavanapadu coal-based thermal power plant near Kakarapalli is being
developed by East Coast Energy Private Limited (ECEPL). If you look out for the promoters of
this company in their website3, you would find that Athena Energy Ventures Pvt Ltd (AEVPL),
AIP Power Pvt Ltd (AIP) and PTC India Financial Services Ltd are among them. All these 3
promote another company Athena Demwe Power Limited for a hydro-electric project in
Arunchal Pradesh. If we look at the board of directors of this company, you find a certain Mr. A.
Balraj. MrBalraj is a retired IAS officer and more interestingly, the chairman of the Expert
Appraisal Committee (EAC), the same which recommended the environmental clearance for the
Kakarapalli.

It is during A.Balraj’s tenure that the EC has been approved. Amazing thread of intrigue indeed.
Such a glaring conflict of interest in public domain. So it is easy to guess the kind of appraisal
done to grant the environmental clearance (EC) for this project.

There were series of complaints that were lodged against ECEPL. All the appeals were dealt by
the National Environment Appellate Authority.

We in this project will further discuss the appeals that were dealt by the NEAA.

2
http://www.athenaenergy.in/bhavnapadu.html last accessed 27/10/18
3
http://www.eastcoastenergy.in/promoters.html last accessed 27/10/18

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GROUNDS OF APPEAL: 4

The appellants has filed the appeals on the following grounds:

1. The project is proposed to be located in the wetlands of the Naupada Swamps in

Srikakulam District with host of aquatic fauna and flora like crabs and shrimps and
mangrove ad forms as important environmental sustainable livelihood and support system
for the economy of several villages.
2. It is within close proximity from Telineelapurampelicanery with gained global
importance as a breeding ground for threatened spot-billed Pelicans storks that throng this
place every year during November from places as Siberia and Europe. It has been
accorded a status of category A1 of Important Bird Area Site (IBAS) and poised to
acquire status of “Biodiversity heritage site.” The site is an important foraging ground
and migratory path for the avifauna.
3. Defying the prohibitory environmental laws and coastal zone regulation, the company has
gone ahead with landfilling which will lead to flooding of lands of neighborhood land of
20000 acres affecting the livelihood of around 10000 small and marginal peasant
communities. However, the ministry instead of taking penal action has asked the project
proponent to shift the site upland sufficiently away from eco- fragile marshy area.
4. The fly-ash and toxicants generated by the plant will permanently damage the agricultural
fields and also water bodies including ground water aquifers. The pollutants from the
plant will pollute the marine organism, fisheries wealth and human beings and will
change the land usage pattern and landscape causing an adverse impact on the ecology of
the reason.
5. Objections raised by local community and common interest groups have been ignored by
the ministry.

The appellants has prayed for:

1. Quash the environmental clearance and,

2. Grant stay on the power plant.

4
In the case of MandapakaNarsingharao v. Union of India. NEAA 2010.

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ISSUE:
The main issue before the authority was whether the proposed project is located in or affecting
an important bird site or causing threat to ecosystem and affecting the livelihood of locals and is
against the overall interest of people at large.

Ratio of the case:

The appeal was disposed by the Court. It also directed the Ministry of Environment and forest to
undertake comprehensive survey of all wetlands in Srikakulam District for their environmental
sensitiveness.

Reasoning given:

Hearing the long arguments of counsels the Authority looked into the main issue before it viz
whether the proposed project is located in or affecting an important bird site or causing threat to
the ecosystem and affecting the livelihood of locals and is against the overall interest of the
people at large. This was discussed as below:

In its meeting the EAC, raising its concern over the ecology, directed the experts to visit the site.
While the WII expert found this area of ecological importance located 2.5 Km away from
Telineelapuram IBA, she suggested more realistic assessment of impacts to be done by compete
agencies like BHNS and SACON. Overall the report of the experts was not favorable, yet the
EAC, collectively, thought it fit to recommend the project for clearance. It was therefore decided
by the authority to summon the experts before it. Only one of the experts appeared before the
authority on the date of hearing when the Respondent – Ministry submitted that in view of
Naupada swamp being an important bird area, the National Board of Wildlife in its meeting held
on 16th September 2009, has decided to conduct a site visit by Dr. AsadRehmani., a reputed
ornithologist and conservation expert and Director Bombay Natural History society and Dr. Asha
Rajvanshi of WII and their report would be considered in the next meeting of its standing
committee and sought three months time.5

The request of the Respondent Ministry was granted. But the authority directed the ministry to
explain the reasons as to why the EC has not been kept in abeyance. In reply the ministry stated

5
http://www.athenaenergy.in/bhavnapadu.html last accessed 27/10/18

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that the site does not fall within the Naupada swamps as per approved Coastal Zone management
plan as confirmed by the AP Environment and Forests, Science and Technology department. It
was given that the aerial distance of the proposed site is 3.25 Km. and that of Telineelapuram
Bird Habitat is 3.8-4.0 Km. and that there are no conservation sites near the project area, that the
area is not conducive for the visit and stay of large birds nor foraging ground for large size
migratory birds such as Pelicans and Storks. There are no National
Parks/Sanctuary/Elephant/Tiger reserve/Migratory path etc. within 10 Km, of the project site nor
the area falls under any reserve forest or eco-fragile zone etc. a sum of 50 lakhs has been set
apart as corpus for the conservation of ecology involving BHNS and AU and a conservation cell
is to be set up to implement the activities; that the environment clearance provides for necessary
safeguards and monitoring mechanism for the purpose; that the work done so far by the
conservation cell speaks of the intentions of the project proponent.

In light of the above, the Authority did not find it necessary to keep EC in abeyance.

Dr. Rehmani, Director BNHS who was asked to depose before the Authority has stated that the
land was, prima facie, an ecologically important wet land deserved to be declared as
conservation reserve and should have not been cleared for the project. However, in view of the
non-reversibility of some of the ecological impacts which had already occurred due to earth work
, project authorities will have to demonstrate utmost seriousness for reducing their ecological
foot prints by ensuring strong and effective measures to reduce and remedy the impacts that
could have prevented had the plant not been here for development.

Respondents, however, pointed out certain loop holes in the written submission of Dr. Rehmani
including his admission that he is not an expert on wetlands. The authority, decided to undertake
a site visit together with an expert from ministry on 28-30th June 2010.

Accordingly the authority accompanied by Dr. S. Kaul, an internationally renowned expert on

wetlands, visited the entire area, heard the local population including the Respondent and
critically examined the aspects raised by appellants and the respondent.

The observations of the Authority showed that, various reports in this regard including that of
sub-committee of EAC were found to be incorrect. The EAC and in turn the MoEF has relied on
these reports for granting EC for the project. As stated by the expert of BHNS and agreed to by

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Dr. Kaul, elevation of the site through excavation in several places by the project proponent,
after the grant of EC nearly an year ago, has caused irreversible changes in the character of the
wetland. Its immediate implication would be flooding of the agricultural fields during rains.
Already, the Bhavanapadu road constructed a few years ago has aggravated this in the absence of
proper culverts. Around 50 fishermen families would find insufficient catch and the extent of
nursery site for fishes will get reduced. Elevated area will no longer be available as feeding
ground for storks and cormorants. No significant effect on grass collection and gazing of
livestock including pigs is foreseen due to this site. Indication of salt pans were not noticed on
this site and were seen 2 Km. away. Authority observed that almost 10% in the locality has since
been converted so far including the raised project site. Being ecologically important, there should
be a total ban on further conversion. However, the authority in the midst of it witnessed a silver
lining by way of de-silting of 3 streams running through the area over 14 Kms in length for
draining the flood water in to sea by the project proponent. This is based on public demand
during the public hearing and would to a large extent take care of flooding and inundation and
consequential effects. However, periodical maintenance of these streams is important. Incursion
of sea water to the agricultural lands through these drains, as apprehended, was found to be a
remote possibility.6

At this stage asking the proponent to leave the site would serve no public interest. As against it
would result in setback to welfare activities already initiated by the proponent at the instance of
the locals.

Authorities reviewed the initiatives under the corporate social responsibility and noted few
submissions of the respondent during the hearing. 7

JUDGEMENT:
By observing the pros and cons in the overall perspective, it is felt that at this stage an exercise of
balancing ‘development with conservation’ is called for. In order to strike the balance between
the interest of justice and fair play, the authority is inclined to agree with the views of Dr. Arsad
and Dr. Kaul that at this stage, all the efforts should be made to contain the impact on ecology

6
http://theargumentativeindian.blogspot.in/2011/03/how-crony-capitalism-lead-to.html last accessed 27/10/18
7
https://www.sourcewatch.org/index.php/Proposed_coal_plants_in_India last accessed 20/10/17.

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and on the people of area at the same time maximizing the fruits of development to affected
villages and the project be allowed to continue. The authority has thus decided to proceed on
these lines.

Environment clearance of the project is for 1995 acres of which 35 acres is outside in private
land. About 875 acres is for the main project, 100 acres for layout and roads, 250 acres for as
pond, 150 acres for green belt and 10 acres for jetty and conveyor belt.

To contain impact of project the proponent should leave 425 acres of the project area intact as
wet land. Besides this, 8 acres proposed for temple tank should also be left as such. Proponent
should leave another 50 acres from various components abutting wet lands. Thus the total
requirements within the allotted area is to be restricted to 1317 acres as against 1800 acres. This
1317 acres includes 150 acres of green belt for absorbing pollution and noise but excludes 160
acres of conveyor belt and accessory area.

Thus following further restrictions/conditions shall be adhered to-

1. No filling and raising of land beyond 1317 acres within wetland of which 150 acres
would be green belt.
2. No activity in identified 483 acres of land which includes 8 acres of proposed pond near
temple.
3. Provisions of continuous and appropriate employment to not less than 50 willing
fishermen.
4. Inclusion of a representative of MoEF in conservation cell.
5. Setting up a committee with representative from regional office of MoEF, State PCB and
four representatives from the villages to monitor implementation of EC conditions and
csr commitments including maintenance of desilted streams.

Thus the authority decided to quash the appeals.

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ANALYSIS OF THE JUDGEMENT:

In his judgment, the Judge notes that before arriving at the decision on the case, he had
ascertained whether or not the proposed project is located in or affecting an important bird area,
and whether it posed a threat to the ecosystem as well as livelihoods of locals. The order then
refers to the series of assessments of the Wildlife Institute of India (WII), the Bombay Natural
History Society and the report of the NBWL all of which pointed out the ecological fragility of
the area. It remarks that MoEF had not kept its environment clearance in abeyance although the
common overall thrust of all the expert reports was not in favour of the project. The MoEF has
placed before the NEAA a detailed set of reasons for the same. Their primary justification was
based on the fact that the Government of Andhra Pradesh had responded saying that proposed
site of the Bhavanapadu plant does not fall within the Naupada swamps as per the approved
Coastal Zone Management Plan (CZMP) of the state. Responses from other state government
departments had indicated that the area was not conducive habitat for both resident and
migratory large birds. It is these and other set of reasons that led the MoEF to conclude that the
approval may be granted to the proposed thermal power plant. But after a site visit, NEAA
concluded that various reports pertaining to the project, including those from MoEF were
incorrect, and that contrary to the basis on which environment clearance was granted by MoEF,
the area was indeed a wetland and marshy area and acknowledged that the company is to blame
for destroying it. It agreed with experts, that the "elevation of the site through excavation in
several places by the project proponent, after the grant of EC nearly a year ago, has caused
irreversible changes in the character of the wetland". However, in view of the non-reversibility
of some of the ecological impacts which had already occurred due to the earth work, the NEAA
is of the opinion that the project authorities will have to demonstrate utmost seriousness for
reducing their ecological footprints by ensuring strong and effective measures to reduce and
remedy the impacts that could have been prevented had the plant not been located here for
development, but stopping the project would result in a setback to the welfare activities already
set into motion by the company. The NEAA order seeks to balance development with
conservation by making all efforts to contain the impact on ecology and on the people of the area
at the same time maximizing thefruits of development to the affected villages and the project be
allowed to continue.

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CURRENT STATUS OF THE PROJECT:

East Coast Energy Private Limited (ECEPL) is in the process of developing a Coal based
Thermal Power Plant near Kakarapalli Village, Santhabommali Mandal, Srikakulam district,
Andhra Pradesh, India. The Project will be implemented in two phases, with each phase
constituting 1,320 MW. It is expected to generate 9,828 Million kWh annually at plant load
factor of 85% for each phase.

Asian Genco has invested in the equity of ECEPL. Partnering in the 2,640 MW coal fired power
project are Athena InfraprojectsPvt Ltd and Athena Energy Ventures (A joint venture of IDFC,
PTC India Limited and AIP Power). The project is financially closed and has secured land,
received allocation of a coal linkage, received environmental clearance from the Ministry of
Environment and Forest and the other required clearances.

All Statutory clearances have been received.

Provisional "Mega Power" status received from Ministry of Power (MoP) in September, 2011.

Financial closure of Phase-I of the Project has been achieved and financial closure of Phase II is
in progress.

Phase I (2 X 660 MW) of the Project is under construction and is expected to commission in
2017.

CRITICISM:

On 28 February, when the people of Kakrapalli village, SanthaBomalli Mandal in Srikakulam

district of Andhra Pradesh protested against the construction a thermal power plant in their area,
they faced police aggression, leading to these casualties. A day later, the Ministry of
Environment and Forests (MoEF) issued a parliamentary statement and an order asking East
Coast Energy Private Ltd (ECEPL) to suspend work on the 2640 MW Bhavanapadu Thermal
Power Project.

Back in 2007, the Deputy Director, Fisheries had written to the District Collector, Srikakulam
pointing out that there are 539 fishermen families in the area, who are part of the Inland
Fishermen Cooperative Society and who draw their livelihoods from fishing in the swamp and
allied activities. They would be impacted if the Bhavanapadu plant was set up and therefore

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alternative livelihoods for them need to be looked into. This did not happen, although the impact
assessment-related procedures appraised within the MoEF mandate such things.

As per MoEF's rethink now, the fate of the power plant is set to roll back to the decks of a
committee within the ministry. This Expert Appraisal Committee (EAC) to review the project
will meet on 7 March.

A history of violations

But there's nothing new in all this. If we're going over this ground now, it is because when the
ministry first examined the project, its basic social, livelihood and environmental impacts were
put aside. But, as in so many other cases, here too the ministry's past errors are coming back to
remind it of its role as the guardian of the natural environment.8

There have been concerns with respect to the setting up of the plant, ever since the time the
project was being appraised by the MoEF. In fact the EAC had received submissions from
several people including the representatives of the Inland Fishermen Cooperative Society, when
they were considering the environment clearance to the plant back in 2008.

These submissions had highlighted the fact that the local farmers had been upset with ECEPL
because the company had has constructed an unauthorized bund flooding the adjacent lands. The
displeasure with the company had continued because the fishermen had been deprived of their
age-old traditional right to fish, with the plant coming up in the area critical for them to carry out
fishing.

The EAC not only swept these concerns away, but also overlooked the ecological importance of
the wetland area (which it acknowledged itself), and sought to give its go-ahead for the
construction of the plant based on a very poor impact assessment. This site is located just 5 kms
from Telineelapurampelicanry, a globally recognized area for avifauna. But, even prior to all the
approvals being in place, the company had begun draining water from the nearby Naupada
swamps and initiated excavation work. This is what the fishing communities had brought to the
attention of the experts prior to the approval being granted.

8
https://www.indiawilds.com/forums/showthread.php?249-Save-Telineelapuram last accessed 27/10/18

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The project was also looked at closely by the National Board for Wild Life (NBWL), but only
after the construction work had already, and significant ecological damage had already occured
and the local community had been angered due to the illegal construction and its impacts as
mentioned above. The report from NBWL provided a scathing critique of the Environment
Impact Assessment (EIA) report based on which ECEPL got its environment clearance by the
EAC. The report also remarked at all the damage that had been caused to the area by the draining
of the wetlands.

Still, NBWL appeared to let the company off the hook. Despite reprimanding the company,
NBWL also proposed a bail-out package which listed a host of mitigation measures and
conditions, which treated the project as irreversible considering it had already received received
environmental clearance.

The environment clearance for the project was challenged by the local fishermen before the
National Environment Appellate Authority (NEAA). During a site visit by the NEAAs
representatives J C Kala to the area in June 2010, the local communities had vehemently opposed
the setting up of plant, and brought to light the violations already incurred. However, the NEAA
in its final order sought to balance development with conservation and relied on the submissions
of the reputed scientists that all efforts must be made to contain the impact on ecology and local
people benefit from the fruits of development. For this another set of conditions and mitigation
measures were listed for the company to follow.

On sinking ground

What is ironic is that the local protests, false data and scientific justifications of the conditional
bailout didn't turn any heads in the ministry, which genially nursed the project along at each
stage. What did awaken the ministry to the sinking ground beneath its feet in this wetland area is
the police firing at Kakrapalli - which promptly got the Minister, Jairam Ramesh, to turn back to
re-examine all the consequence of the bad decisions made so far. There are currently over 7000
such projects; if each one will only receive proper attention under the glare of police firing that
would add up to a lot of lives lost or destroyed.

The Kakrapalli decision eerily resembles an incident that took place in the nearby Sompeta
Mandal of Srikakulam district in July 2010. There, fishermen opposed to the construction of a

17
2x660 MW super critical coal-based thermal power plant by Nagarjuna Construction Company,
which too had been granted environment clearance by the MoEF. This project had also been
challenged by the fisherfolk before the NEAA, who had collectively shown their opposition
during the site inspection in June 2010. On 14 July 2010, four people lost their life in police
firing while they were protesting against the construction of. It was only after this incident that
the NEAA and the MoEF stepped in to revoke clearances, and begin re-examine the facts.

Both these incidents represent occasions where the decision-making process chose to ignore
many of the social, livelihood and ecological considerations that should have mattered. Many
reputed experts, consultants, and scientists disregarded not just the fishing communities' word,
but even their own understanding of the irreversible impact that the project would have on the
people and ecology of area in question.9

Such maneuvered injustice often goes unpunished. But every once in a while, a Kakrapalli or a
Sompeta blows itself up in our faces, seeking answers from all those responsible in small and
significant ways. How we respond matters not only here, but equally in the countless other
places around the country that are experiencing similar turmoil.

9
https://www.indiawilds.com/forums/showthread.php?249-Save-Telineelapuram last accessed 27/10/18

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 BIBLIOGRAPHY

 https://www.indiawilds.com/forums/showthread.php?249-Save-Telineelapuramlast
accessed 20/10/17.

 http://theargumentativeindian.blogspot.in/2011/03/how-crony-capitalism-lead-to.html
last accessed 20/10/17
 https://www.sourcewatch.org/index.php/Proposed_coal_plants_in_India last accessed
20/10/17
 http://www.athenaenergy.in/bhavnapadu.html last accessed 20/10/17.
 MandapakaNarsingharao v. Union of India. NEAA 2010.

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