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Uttarakhand 2013: Landmark NGT order makes a strong case against building dams

Nihar Gokhale | Updated on: 25 August 2016, 20:43 IST

In 2013, a cloudburst in Uttarakhand caused floods that killed at least 10,000 people. Over three years later, there's finally some closure for their families and other survivors. The National Green Tribunal has ruled that an under construction hydroelectric dam on Alaknanda river was responsible for damaging life and property in Srinagar town in the state's Pauri district, and ordered the company building it to pay Rs 9.26 crore compensation to Srinagar residents.

A landmark judgment

The judgment, which was reserved for almost 10 months before being pronounced on 19 August, deserves to be remembered for many reasons.

This is the first time any responsibility has been laid on the hydroelectric projects in the state. Nearly 100 such dams have been proposed in the hills, even as locals and environmentalists have been crying hoarse about the safety of having them in the fragile mountains. The state and central governments have ignored these concerns.

Also read - This monsoon, a book on 2013 Uttarakhand floods reminds: no one is safe

The judgment exposes irresponsible behaviour by dam builders. The petition, which was filed by Srinagar Bandh Aapda Sangharsh Samiti, an organisation of Srinagar residents, raised the contention was that mounds of muck were lying about the dam site.

Nature's fury?

Muck, although a harmless in itself, is dangerous when heaps of it lies on a sloping hill next to a raging river.

This muck along with silt made the Alaknanda's flooded waters in 2013 more damaging, eventually piling up to eight feet high in Srinagar. Around 600 persons have gone on record in the NGT petition, each claiming costs ranging from Rs 1 lakh to Rs 4 lakh for clearing the muck from their homes, according to Rahul Choudhary, their advocate. These claims totaled to the Rs 9 crore that the NGT has agreed to and awarded as compensation.

The immediate result is that now this amount will be paid. The NGT has ordered the senior-most sub-divisional magistrate in Pauri to oversee the process of disbursement of the compensation amount. (The SDM has to first publish a notice calling for claims, which then have to filed within 90 days along with requisite proofs).

Not an 'act of god'

But the precedent set by the NGT order goes beyond the payment.

The NGT ruled that although the flood and the cloudburst were not the dam's doing, the fact that the dam did not have any safeguards for protection against floods made it liable to pay for damages.

The dam, officially run by the Alaknanda Hydro Power Company, is a subsidiary built by the infrastructure behemoth GVK.

GVK had argued before NGT that the floods were an 'act of god' and so had nothing to do with the damage caused in Srinagar.

That the dam did not have any safeguards for protection against floods made it liable to pay damages

The NGT threw out this argument, saying that "human foresight could have reasonably anticipated" that any laxity in taking protective measures from muck would prove disastrous. "Material placed before us points to laxity on the part of Alaknanda Hydro Power Co".

In other words, GVK should have known that the muck, although harmless on its own, is dangerous when lying about hill slopes next to a fast-moving river. Although there are official rules on handling muck, the NGT also found that the dam was not complying with these.

'No fault liability'

In doing this, the NGT judgment sets another precedent, of applying the principle of 'no fault liability', a legal principle which means that although the floods were not the dam's fault, it is still liable to pay for damages. This is the first time the principle was applied to dams, said environmental lawyer Ritwick Dutta. "This is significant because so far dam companies got away saying that it was not their fault that a natural disaster happened," Dutta said.

Finally, the NGT verdict is important because although it remained within the limits of the original petition - which is to award compensation for damage to residential property in Srinagar - the NGT has ended up making a strong case against the building of dams.

The NGT judgment sets another precedent - that of applying the principle of 'no fault liability'

In the judgment, the two-member NGT bench wrote that it was "within the knowledge of" the builders that the dam was situated in geologically sensitive Himalayas where cloudburst is "not a rare phenomena".

This has cleverly raised the larger question of the viability of dams in the Himalayas, a matter that is actually before the Supreme Court.

The apex court's case, which was based partly on suo motu cognisance of the 2013 floods, has been dragging because the government is trying hard to justify dams. Although the Ganga rejuvenation ministry doesn't want dams, the Prime Minister's Office has prodded the environment ministry to form multiple technical committees - all of which eventually spoke against building dams. Finally, the ministry's has said it will allow dams based on a 100-year old document, a treaty signed in 1916 between the British colonial government and Hindu nationalist leader Madan Mohan Malviya. The treaty allowed dams on Ganga as long as they let out 1000 cusecs of water.

Alaknanda is a tributary of the Ganga, but the agreement predates modern water science by about four decades, and makes no sense today.

The NGT judgement has, meanwhile, made the case that irrespective of flows, dams in themselves are a risky business in the unpredictable Himalayan climate. Climate change will make it only more dangerous. Now, will the environment ministry please stop mucking around?

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First published: 25 August 2016, 20:43 IST
Nihar Gokhale @nihargokhale

Nihar is a reporter with Catch, writing about the environment, water, and other public policy matters. He wrote about stock markets for a business daily before pursuing an interdisciplinary Master's degree in environmental and ecological economics. He likes listening to classical, folk and jazz music and dreams of learning to play the saxophone.