PRESS RELEASE: 17 November 2006: Bangalore

NICE OBFUSCATING FACTS TO DISTRACT ATTENTION FROM THEIR ILLEGAL ACTIONS IN BMIC PROJECT IMPLEMENTATION

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Over the past few weeks there has been a vigorous campaign by some to present Nandi Infrastructure Corridor Enterprise Ltd. (NICE) is keen to complete the Bangalore Mysore Infrastructure Corridor Project while the Government is stopping it from doing so by not releasing lands as required. Such an action on the part of the Government is claimed to be in absolute violation of the Hon'ble Supreme Court's decisions, thus presenting the scenario that the law protects NICE's actions, and all that the Government and its agencies have done is illegal.

Nothing could be farther from the truth.

The Hon'ble Supreme Court of India in its decision of 20 April 2006 (in Civil Appeal Nos 3492-3494 of 2005), which has currently the operative final judgment, clearly directed the State of Karnataka to ensure the project was implemented in accordance with project technical designs as approved in the project Framework Agreement of 1997. It thereby upheld all the decisions taken on the basis of the Framework Agreement, including the alignment of Expressway (111 kms.), Peripheral Road around Bangalore (41 kms.), Link Road (9.1 kms. at grade and 3 kms. elevated), interchanges and 5 townships.

At no time has the Hon'ble Supreme Court directed that the Government of Karnataka allow NICE to build the project in variance to these clearances, which include alignment clearances from Ministry of Environment and Forests (MoEF, per Environment Protection Act and Environment Impact Assessment Notification), Karnataka State Pollution Control Boards (KSPCB, per Water and Air Pollution Control Acts) and Bangalore Mysore Infrastructure Corridor Area Planning Authority (BMICAPA, per the Karnataka Town and Country Planning Act and BDA Act).

In effect, the Supreme Court upheld the right of the State to take any action as appropriate if there was violation of law in the implementation of the project. In case the State or Central Government at any point in time discovered that NICE had not implemented the project as per clearance norms, any appropriate action, including withdrawal of the clearances granted, or even cancellation of the Framework Agreement, are actions that are clearly within their domain to take. Such a process is widely recognized worldwide as implementing the Rule of Law. Thus, anyone arguing in favour of NICE implementing the project in any manner it pleases, especially in variance to law, is clearly in contempt of court and nothing less.

In this context, the withdrawal of the Consent for Establishment (CFE, also known as No Objection Certificate or NOC) by the Karnataka State Pollution Control Board has been wrongly interpreted as violative of Supreme Court decisions, without any substantiation whatsoever.

A careful reading of the withdrawal order of CFE by KSPCB reveals that the clearance was withdrawn on 20 September 2006 on the basis that "KSPCB compared the alignment submitted for seeking CFE with alignment approved by BMIC Area Planning Authority (BMICAPA) on 12-2-2004" and found the "latter alignment is significantly different and in variance of that submitted to KSPCB for grant of CFE and environmental clearance from MoEF, GoI". When compared the alignment of the Peripheral road that NICE is implementing is vastly different from that approved by the KSPCB and Government of India (MoEF). At some points the deviation is more than a kilometer away from the approved alignment, which in some cases is threatening densely populated poor neighbourhoods and villages with needless displacement.

This is not a trivial matter. Faithful adherence to approved alignments of infrastructure project is highly critical to the delivery of stated objectives. Any variance from the approved alignment has to undergo fresh study and analysis on the impacts: environmental, social and economic. NICE has fundamentally altered its alignment to suit the vested interests of powerful and politically connected landowners.

A series of alignment maps (including Survey Nos.) highlighting the extent of violations are enclosed, revealing the exact nature of violations.

Such illegal changes in the alignment also affect hundreds of households and small and marginal farmers, who do not have the influence or the resources to protect their properties to ensure their livelihoods. As these families were never originally thought to be project affected communities, they do not in any manner benefit from any rehabilitation measures as mandated.

In the particular case of the Gottigere Tank, based on a petition (WP No. 17823/1999) by noted film personality Shri. Suresh Heblikar, the Hon'ble High Court of Karnataka found it fit to order as follows:

"The respondents are directed not to lay any road bisecting the Gottigere Tank preventing or disturbing the inflow of water into the tank. In case they want to lay a ring road or any other road it is open to them to lay any such road by providing an overpass without disturbing the free-flow of water to the tank. However, it is open to them to dig up the tank bed for laying pillars for providing the overpass".

It must be noted that this order was passed after the Court considered various options and expert opinions, and only then found it fit to allow for the road to pass over the tank, rather than around it, or through it. Construction technology is highly evolved today to ensure that not even a pillar be laid on the tank bed (such as by suspension bridges), if NICE so desires to protect this tank. To build the road on the bund or inflow region (as is presently proposed by NICE for many tanks) will effectively destroy the water body.

While a lot of attention has been focused only on Gottigere Tank, at last count at least 20 tanks have been completely or partially destroyed by NICE in the implementation of only the Peripheral Road component of the BMIC project. Excepting in the case of Hosakerehalli tank, where permission was sought for marginal acquisition of tank lands for building the Link Road, the destruction or encroachment of every other tank is clearly in contempt of the direction of the Hon'ble High Court of Karnataka in Writ Petition 31343/1995. This judgment required any agency, be it public or private, to seek the permission of the Hon'ble Court before diverting a tank or its bed to any other purpose be it by way of lease or transfer in the Bangalore Metropolitan Area. While the decision of the Karnataka Government to transfer these tanks to NICE prior to 2004 without seeking the permission of the Hon'ble Court is in itself a serious violation, as this order has been effective from 1995, it has further exposed the vacuous arguments of NICE that it is keen on protecting water bodies.

Clearly then, NICE has fundamentally violated both these directions by the Hon'ble Court by building through many water bodies or on their periphery. Ecologically not only has NICE destroyed every single tank that the road passes through, but in turn a whole series of inter-linked water bodies thus causing unthinkable hardship for downstream farming communities, while fundamentally altering the water regime of the region. In the urban context, this can result in unintended and disastrous flooding of neighbourhoods and serious depletion of groundwater reserves in other areas.

In addition, the project as is being built is in many cases hundreds of metres away from the approved alignment. This has resulted in irreparable damage to the environment while also displacing thousands of small and marginal farmers and houses. Excellent wetlands, farmlands, and forest stretches have been destroyed in the process.

Despite many representations by Environment Support Group highlighting this fact over the years, no action was initiated by the Government. In that sense it is a rather belated response, but nevertheless welcome, that KSPCB has withdrawn the CFE. The Ministry of Environment and Forests (MoEF) must follow suit and withdraw the environmental clearance it has granted. This is because the very first condition for granting environmental clearance to the project by MoEF reads as follows: "All the conditions stipulated by Karnataka State Pollution Control Board vide their letter No. KSPCB/CFE/DEO-2/AEO-2/2000-2001/208 dated 11th August 2000 shall be effectively implemented".

It is also stated that "(t)he Ministry reserves the right to revoke this clearance if any of the conditions stipulated are not compiled with to the satisfaction of the Ministry". It is further clarified that "(i)n the event of a change in project profile or change in the implementation agency, a fresh reference shall be made to the Ministry of Environment & Forests".

It is a matter of fact that while unilaterally and fundamentally altering the alignment, NICE has not made any fresh reference to the Ministry as is required. This constitutes a blatant violation of clearance conditions mandating withdrawal of environmental clearance. Given now that KSPCB has withdrawn the CFE for fundamental violation of approved alignments, MoEF is found wanting for not following suit by withdrawing the environmental clearance as is required per law and as directed by the Hon'ble Courts.

In the circumstances, we demand that MoEF must take action as appropriate per law, least of which would be to ensure that NICE implement the project as originally approved and as upheld by Hon'ble Courts. Anything less would constitute a grave offence of the law and needless to state, blatant violation of judicial orders.

Leo F. Saldanha
Environment Support Group
105, East End B Main Road, Jayanagar 9th Block East, Bangalore 560069.INDIA
Tel: 91-80-22441977/26531339 Fax: 91-80-26534364
Email: esg@esgindia.org or esg@bgl.vsnl.net.in Web: www.esgindia.org