BENGALURU DEVELOPMENT AUTHORITY Vs MR. SUDHAKAR HEGDE
Bench: HON'BLE DR. JUSTICE D.Y. CHANDRACHUD, HON'BLE MR. JUSTICE HEMANT GUPTA
Judgment by: HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
Case number: C.A. No.-002566 / 2019
Diary number: 8100 / 2019
Advocates: NULI & NULI Vs
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1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 2566 of 2019
Bengaluru Development Authority ...Appellant
Versus
Mr Sudhakar Hegde & Ors. ...Respondents
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
Index
A Introduction
B Submissions
C Issues
D Date of commencement of the PRR project
E Applicability of the EIA Notification 2006
F Compliance with the procedure under the EIA Notification 2006
2
G Deficiencies in the EIA report
G.1 Accreditation of the EIA consultant
G.2 Forest land
G.3 Trees
G.4 Pipeline
H Appraisal by the SEAC
I Courts and the environment
J Directions
PART A
3
A Introduction
1. The present appeal arises from a judgment of the Principal Bench of the
National Green Tribunal 1 dated 8 February 2019 quashing the Environmental
Clearance 2 granted to the appellant for the development of an eight lane
Peripheral Ring Road 3 connecting Tumkur Road to Hosur Road and totaling a
length of 65 kilometers. The NGT was of the view that the primary data upon
which the Environment Impact Assessment 4 report was based was collected
more than three years prior to its submission to the State Environment Impact
Assessment Authority 5 . The NGT was of the view that it was not necessary to
adjudicate upon the other contentions that were urged in support of quashing the
EC as there was a substantial delay in the preparation of the EIA report.
Accordingly, the NGT directed the appellant to conduct a fresh rapid EIA and
clarified that the “project proponent will not proceed on the basis of the impugned
Environmental Clearance.” Assailing the order of the NGT, the appellant, as
project proponent, is in appeal before this Court.
2. In a bid to address the growing need for efficient commutation, address
traffic congestion and connect the Bangalore-Mysore Infrastructure Corridor
(NICE road) with more access points, the appellant formulated the PRR project
scheme in 2005. A preliminary notification was issued on 27 May 2005 under
Section 17(1) and (3) of the Bangalore Development Authority Act 1976 6 to
1 NGT
2 EC
3 PRR
4 EIA
5 SEIAA
6 BDA Act
PART A
4
acquire certain land for the execution of the project. The stated purpose of the
project was:
“1) To decongest the traffic in Bangalore City;
2) To cater intercity connectivity and intercity traffic;
3) To reduce pollution in the city;
4) To reduce heavy vehicles traffic i.e., Lorry and Trucks; and
5) To decongest the traffic on outer ring road.”
3. Another preliminary notification was issued on 23 September 2005 which
concerned the realignment of the proposed road project. A final notification under
Section 19(1) of the BDA Act was issued on 29 June 2007 for the acquisition of
the proposed land. The notifications were challenged before the High Court of
Karnataka in Writ proceedings 7 on the ground that the appellant had no authority
to issue the notifications and acquire land for the proposed PRR project. By a
judgment dated 22 July 2014, the High Court dismissed the writ petition on the
ground that the appellant was authorised under the BDA Act to acquire the land
for the project in question. The Writ Appeal against this was dismissed on the
ground of default on 9 February 2017.
4. The appellant, as project proponent, submitted an application 8 to the
SEIAA on 10 September 2009 under the EIA Notification 2006 9 seeking an EC for
the PRR. The Terms of Reference 10
were prepared by the State Expert Appraisal
Committee 11
on 21 November 2009. Primary data was collected between
7 WP No. 4550/2008
8 No. BDA/EM/TA3/PRR/EIA/T333/09-10
9 2006 notification
10 ToR
11 SEAC
PART A
5
December 2009 and February 2010. The final EIA report was placed before the
SEAC and the SEIAA in October 2014. An EC was granted by the SEIAA on 20
November 2014. The first and second respondents filed an appeal to the NGT
challenging the grant of the EC. The NGT, by an interim order dated 15 April
2015 granted an interim stay of the EC. The relevant portion of the order reads:
“Pointing to the EIA report which was placed before the 1 st
respondent, the counsel for the appellant would submit that
the first part of the report would clearly indicate that if the road
was constructed, it would pass through the Reserve Forest
and the later part it would submit that the Forest clearance is
not necessary which by itself would suffice to reject the
recommendation. The EIA report would clearly indicate that if
the proposed road has got to be constructed approximately
200 trees were to be cut which is thoroughly inconsistent to
the report given by the Horticulture and Forest Department.
According to their report, it would require felling of 16,685
trees. Added further by the counsel for the appellant that if the
proposed road is allowed to be constructed it would be above
the underground pipe line already laid for transporting
petroleum from Mangalore to Bangalore and if any leakages
happens in future it would bring forth serious consequence…
There exists a prima facie case in favour of the appellant for
granting an interim order of stay…”
The NGT noted the discrepancy between the submission of the appellant and the
existence of a reserved forest through which the proposed road was to pass. The
NGT recorded that while the EIA report stated that only 200 trees would be cut
for the proposed project, the report given by the Horticulture and Forest
Department indicated that about 16,685 trees would be required to be felled for
the proposed project. By its final order dated 8 February 2019, the NGT stayed
the operation of the EC granted by the SEIAA. The relevant portion of the order
reads:
PART B
6
“The Environmental Clearance was granted on 20.11.2014.
Thus, the primary data was more than three years prior to the
EIA report. There are omissions in the EIA report with regard
to data of forests land as well as the provisions of revised
Master Plan, 2015 prepared by the BDA. Thippagondanahalli
Reservoir (TGR) catchment area has been suppressed in the
EIA report. Green cover particulars have been overlooked.
Further objection is that there is proximity of the area to the
petroleum pipelines and land earmarked for petroleum
pipelines overlaps the project. According to the appellant,
Stage-I Forest Clearance was not obtained as required…
It is not necessary to adjudicate on the contentions raised,
having regard to the patent fact that there was substantial
delay in EIA and a period of almost five years passed even
thereafter. This Tribunal, vide order dated 15.04.2015,
considered the issue…It will, thus, be in the interest of justice
that a fresh rapid EIA is conducted. If the project is found
viable after incorporating due abatement measures, including
the suggestions of the appellant, the same can be taken up
without further delay…”
The NGT directed the appellant to conduct a rapid EIA. It was further directed
that if the project is found to be viable after incorporating abatement measures,
“the same can be taken up without delay”. Notice was issued by this Court on 15
March 2019.
B Submissions
5. Assailing the order of the NGT, Mr Shyam Divan, learned Senior Counsel
appearing on behalf of the appellant contended that:
(i) The 2006 Notification obliges a project proponent to seek prior EC only
for projects that are listed in the Schedule to the Notification. Para 7(f)
of the Schedule includes only those projects that are either National or
State Highways. The PRR project does not fall within the ambit of either
the National Highways Act 1956 or the Karnataka Highways Act 1964.
PART B
7
Consequently, the appellant was under no obligation under the 2006
Notification to seek a prior EC for the PRR project;
(ii) The 2006 Notification came into effect from the date of its publication in
the Official Gazette on 14 September 2006. It is prospective in its
application. The PRR project commenced on 23 September 2005 upon
the issuance of the preliminary notification under the BDA Act and as
such, on the date of the coming into force of the 2006 notification, no
obligation existed on the appellant to seek a prior EC for the PRR
project;
(iii) The appellant executed the EIA process and applied for the grant of an
EC out of abundant caution;
(iv) The first respondent has challenged the grant of the EC by the SEIAA
only because his appeal before the Karnataka High Court challenging
the acquisition of land for the PRR project was unsuccessful. The
present proceedings are merely a method of delaying the acquisition
proceedings;
(v) The SEAC acceded to the request of the appellant to not forward to the
SEIAA a recommendation for the closure of the proposal. The SEAC
recommended to the SEIAA the grant of the EC to the project in
question after due consideration of the EIA report in its 121st meeting
between 11 and 18 November 2014; and
(vi) All objections raised by the first respondent concerning forests, the
cutting of trees and the protection of the reservoir were adequately
PART B
8
addressed in the EIA report submitted in 2014, on which basis an EC
was granted to the PRR project.
6. On the other hand, Mr Nikhil Nayyar, learned Senior Counsel appearing on
behalf of the first respondent contended:
(i) The term „highway‟ or „expressway‟ used in the 2006 Notification must
be given a wide interpretation and not be restricted to the issuance of a
notification under central or state enactments;
(ii) Both the National Highway Act 1956 and the Karnataka State Highway
Act 1964 concern the acquisition of land, its development and
permissions concerning the collection of toll/fee. The statutory
framework does not envisage the wide definition to be attributed to the
term „highway‟ in matters concerning the protection of the environment;
(iii) The appellant itself admitted in its EIA report that the PRR project is a
category „B‟ project falling under the purview of para 7(f) of the
Schedule under the 2006 Notification;
(iv) The primary data for the PRR project was collected between December
2009 and February 2010. The EAC conducted the appraisal process
after a substantial delay of over four years in the year 2014. This
defeats the purpose for which ToRs are issued as the state of the
environment is constantly changing;
(v) An OM dated 22 March 2010 issued by the Ministry of Environment and
Forests 12
stipulates that EIA reports for projects where the ToRs have
12
MoEF, later renamed as MoEFCC in 2014
PART B
9
been granted prior to the date of the coming into force of the OM must
be based on primary data that is not older than three years. The OM
further stipulates that a ToR is valid only for a period of four years. The
EIA report was prepared after the expiry of the ToR and is legally
unsustainable;
(vi) The SEIAA decided to close the file for the PRR project on 17 May
2013, which decision was communicated to the appellant on 25 July
2013. A party aggrieved by the action of the SEIAA may only file an
appeal under Section 16 of the NGT Act and the SEIAA was not
authorised to reopen the file on the request of the appellant;
(vii) There was no collection of additional data in the year 2014. The report
which is styled as a rapid EIA report in the year 2014 is nothing but the
final EIA report under the 2006 Notification which was prepared after
the public consultation process was conducted in February 2014; and
(viii) There are significant omissions in the EIA report concerning forest land,
green cover, number of trees required to be cut, the catchment area in
the Thippagondanahalli Reservoir and proximity of the PRR project to
the petroleum pipelines underneath. Material concealment by the
project proponent invalidates the EC which was granted by the SEIAA.
7. The rival submissions fall for our consideration.
PART C
10
C Issues
8. Essentially this Court is required to decide:
(i) Whether the PRR project commenced prior to the coming into force of
the 2006 Notification;
(ii) Whether the PRR project falls within the scope of para 7(f) of the
Schedule to the 2006 Notification obliging the project proponent to seek
a prior EC; and
(iii) Whether the appellant has complied with the conditions stipulated in the
2006 Notification and the OMs issued by the MoEF-CC from time to
time.
PART D
11
D Date of commencement of the PRR project
9. This Court is required to adjudicate whether it is the issuance of a
preliminary notification under Section 17 of the BDA Act or a final notification
under Section 19 of the BDA Act that constituted the identification of the
proposed site for the project and marked its commencement for the purposes of
the 2006 Notification.
10. On 27 January 1994, the MoEF, in exercise of the powers conferred by
sub-section (1) and clause (v) of sub-section (2) of Section 3 of the Environment
(Protection) Act 1986 Act read with clause (d) of sub-rule 3 of rule 5 of the
Environment (Protection) Rules, 1986, issued a notification imposing restrictions
and prohibitions on the expansion and modernisation of any activity or a new
project unless a prior EC was granted in accordance with the procedure
stipulated in the notification. On 14 September 2006, the MoEF released the
2006 Notification in supersession of the previous notification. The 2006
Notification directed that:
“…on and from the date of its publication the required
construction of new projects or activities or the expansion or
modernization of existing projects or activities listed in the
Schedule to this notification entailing capacity addition with
change in process and or technology shall be undertaken in
any part of India only after the prior environmental
clearance from the Central Government or as the case may
be, by the State Level Environment Impact Assessment
Authority, duly constituted by the Central Government under
sub-section (3) of section 3 of the said Act, in accordance
with the procedure specified hereinafter in this notification.”
(Emphasis supplied)
PART D
12
11. The 2006 Notification came into force on the date of its publication and
obliges every project proponent to seek prior EC for the projects and activities
which are listed in the Schedule to the Notification. According to para 2 of the
2006 Notification, all new projects or activities listed in the Schedule to the 2006
Notification shall require a prior EC from the concerned regulatory authority:
“2. Application for Prior Environmental Clearance (EC):- An
application seeking prior environmental clearance in all cases
shall be made in the prescribed Form 1 annexed herewith
and Supplementary Form 1A, if applicable, as given in
Appendix II, after the identification of prospective site(s)
for the project and/or activities to which the application
relates, before commencing any construction activity, or
preparation of land, at the site by the applicant. The
applicant shall furnish, along with the application, a copy of
the pre-feasibility project report except that, in case of
construction projects or activities (item 8 of the Schedule) in
addition to Form 1 and the Supplementary Form 1A, a copy of
the conceptual plan shall be provided, instead of the pre-
feasibility report.”
(Emphasis supplied)
Once a prospective site has been identified by the applicant for the proposed
project, all applications seeking an EC shall be made in the prescribed Form 1
and Supplementary Form 1A, if applicable which contains a detailed list of the
extent and potential impact of the proposed project. The application must be
submitted after the identification of the prospective site and prior to the
commencement of any construction activity, or preparation of the land. Thus, the
action by the project proponent that is relevant to the obligation to seek a prior
EC under the 2006 notification is the identification of the prospective site for the
execution of the proposed project.
PART D
13
12. Section 2(a) of the BDA Act defines “authority” as the Bangalore
Development Authority constituted under Section 3 of the Act. Chapter III of the
Act deals with development schemes and the procedures that must be complied
with in the carrying out of a development scheme. Under Section 15, the
appellant may draw up a detailed development scheme for the development of
the Bangalore metropolitan area. Section 16(1) mandates that the appellant must
also provide, in the formulation of the scheme, the details of the land proposed to
be acquired for the development scheme. Section 17 contemplates the issuance
of a preliminary notification. It reads:
“17. Procedure on completion of scheme.- (1) When a
development scheme has been prepared, the Authority shall
draw up a notification stating the fact of a scheme having
been made and the limits of the area comprised therein, and
naming a place where particulars of the scheme, a map of the
area comprised therein, a statement specifying the land which
is proposed to be acquired and of the land in regard to which
a betterment tax may be levied may be seen at all reasonable
hours.
(2) A copy of the said notification shall be sent to the
Corporation which shall, within thirty days from the date of
receipt thereof, forward to the Authority for transmission to the
Government as hereinafter provided, any representation
which the Corporation may think fit to make with regard to the
scheme.
(3) The Authority shall also cause a copy of the said
notification to be published in [ x x x ] the official Gazette and
affixed in some conspicuous part of its own office, the Deputy
Commissioner‟s Office, the office of the Corporation and in
such other places as the Authority may consider necessary.
(4) If no representation is received from the Corporation
within the time specified in sub-section (2), the concurrence of
the Corporation to the scheme shall be deemed to have been
given.
(5) During the thirty days next following the day on which
such notification is published in the official Gazette the
Authority shall serve a notice on every person whose name
appears in the assessment list of the local authority or in the
land revenue register as being primarily liable to pay the
PART D
14
property tax or land revenue assessment on any building or
land which is proposed to be acquired in executing the
scheme or in regard to which the Authority proposes to
recover betterment tax requiring such person to show cause
within thirty days from the date of the receipt of the notice why
such acquisition of the building or land and the recovery of
betterment tax should not be made.
(6) The notice shall be signed by or by the order of the
[Commissioner] and shall be served,-
(a) by personal delivery or if such person is absent or cannot
be found, on his agent, or if no agent can be found, then by
leaving the same on the land or the building ; or (b) by leaving
the same at the usual or last known place of abode or
business of such person ; or (c) by registered post addressed
to the usual or last known place of abode or business of such
person.
Section 17 stipulates that the appellant shall, upon the preparation of a scheme
under Section 15, notify that a scheme has been prepared along with the
specifications of the scheme, a map of the area comprised therein and the details
of the land proposed to be acquired. The notification is forwarded to the
Corporation of the City of Bangalore, which is granted thirty days to provide its
comments to the appellant authority for transmission to the government along
with the scheme for sanction. Section 17(3) stipulates that a copy of the
notification shall be published in the Official Gazette and affixed in conspicuous
parts of the offices of the appellant and the Corporation. Section 17(5) mandates
that the appellant shall serve on every person whose land is proposed to be
acquired a notice to show-cause within thirty days on why the acquisition of the
building or land must not take place.
13. Section 18 stipulates that where the procedure stipulated under Section 17
is complete, the appellant shall submit the scheme with any modifications, to the
PART D
15
Government of Karnataka for sanction subject to the conditions stipulated therein.
Section 18 reads:
“18. Sanction of scheme.- (1) After publication of the scheme
and service of notices as provided in section 17 and after
consideration of representations, if any, received in respect
thereof, the Authority shall submit the scheme, making such
modifications therein as it may think fit, to the Government for
sanction, furnishing,-
(a) a description with full particulars of the scheme
including the reasons for any modifications inserted
therein;
(b) complete plans and estimates of the cost of
executing the scheme;
(c) a statement specifying the land proposed to be
acquired;
(d) any representation received under sub-section (2)
of section 17;
(e) a schedule showing the rateable value, as entered
in the municipal assessment book on the date of the
publication of a notification relating to the land under
the section 17 or the land assessment of all land
specified in the statement under clause(c); and
(f) such other particulars, if any, as may be
prescribed.
(2) Where any development scheme provides for the
construction of houses, the Authority shall also submit to the
Government plans and estimates for the construction of the
houses.
(3) After considering the proposal submitted to it the
Government may, by order, give sanction to the scheme.”
Under this provision, the appellant is required to furnish details of the land
proposed to be acquired along with a schedule showing the rateable value, as
entered in the municipal assessment book on the date of the publication of the
notification. The appellant furnishes to the government a description with full
particulars of the scheme including the reasons for any modifications inserted,
plans and estimates of costs and a statement specifying the land proposed to be
PART D
16
acquired. Significantly, if the government is satisfied with the proposed scheme, it
may accord sanction to the scheme under Section 18(3) of the Act. A scheme
formulated under Section 15 may only be carried out where sanction has been
accorded to the scheme by the Government under Section 18(3) of the Act.
14. Section 19 of the Act reads thus:
“19. Upon sanction, declaration to be published giving
particulars of land to be acquired.- (1) Upon sanction of the
scheme, the Government shall publish in the official Gazette
a declaration stating the fact of such sanction and that the
land proposed to be acquired by the Authority for the
purposes of the scheme is required for a public purpose.
(2) The declaration shall state the limits within which the land
proposed to be acquired is situated, the purpose for which it
is needed, its approximate area and the place where a plan of
the land may be inspected.
(3) The said declaration shall be conclusive evidence that the
land is needed for a public purpose and the Authority shall,
upon the publication of the said declaration, proceed to
execute the scheme.
(4) If at any time it appears to the Authority that an
improvement can be made in any part of the scheme, the
Authority may alter the scheme for the said purpose and shall
subject to the provisions of sub-sections (5) and (6), forthwith
proceed to execute the scheme as altered.
(5) If the estimated cost of executing the scheme as altered
exceeds, by a greater sum than five per cent the estimated
cost of executing the scheme as sanctioned, the Authority
shall not, without the previous sanction of the Government,
proceed to execute the scheme as altered.
(6) If the scheme as altered involves the acquisition otherwise
than by agreement, of any land other than that specified in
the schedule referred to in clause (e) of sub-section (1) of
section 18, the provisions of sections 17 and 18 and of sub-
section (1) of this section shall apply to the part of the scheme
so altered in the same manner as if such altered part were
the scheme.”
PART D
17
Under Section 19, once the Government sanctions the appellant‟s scheme, a
final notification is published by the government in the Official Gazette declaring
that sanction has been received and that the land proposed to be acquired is
required for a public purpose. The final notification specifies the limits within
which the land proposed to be acquired is situated and specifies the place at
which people may inspect the plan. The appellant is authorised under Section
19(4) to alter the scheme subject to the sub-sections (5) and (6). Section 19(6)
stipulates that if acquisition of additional land is required over and above the
details that were furnished by the appellant under Section 18, and otherwise than
by agreement with the person whose land is proposed to be acquired, the
procedure stipulated in Section 17 and 18 shall be followed.
15. The BDA Act was enacted with the purpose of establishing a development
authority for the development of the city of Bangalore and adjacent areas.
Sections 17, 18 and 19 stipulate the mechanism that must be followed by the
appellant leading up to the grant of government sanction for a scheme formulated
under Section 15. The purpose underlying Section 17 is to grant to both the
Corporation and the persons whose lands are proposed to be acquired an
opportunity to file their objections to the proposed scheme and the acquisition of
land required for the execution of the project. Though the land proposed to be
acquired for the scheme is stipulated in the preliminary notification under Section
17, the provision to forward to the Corporation a copy as well as serve notices to
persons whose lands are proposed to be acquired sub-serves the principles of
PART D
18
natural justice where an affected party is extended the right to object to a
proposed scheme.
16. Upon the receipt of suggestions and objections, if any, the appellant may
modify the scheme in accordance with the suggestions received and thereafter
forward to the Government the scheme for the grant of sanction. However, it is
only upon the grant of sanction by the Government under Section 18(3), that a
final notification under Section 19 is issued. It is only upon the grant of sanction
by the Government that a proposed scheme is deemed to be finalized and
carried into effect.
17. The 2006 Notification stipulates an obligation to commence the EIA
process once a prospective site is identified and before the commencement of
any construction or preparation of land. It may be possible that following the
formulation of a scheme under Section 15 and the issuance of a preliminary
notification under Section 17, government sanction is denied or the appellant
drops the proposed scheme prior to the grant of sanction or the issuance of the
final notification. In such situations, if it were held that it is the issuance of the
preliminary notification identifying the proposed site for the project that marked
the commencement of the project for the purposes of the 2006 Notification, the
appellant would be under an obligation to carry out the EIA process for a
proposed scheme which may not eventually materialize.
PART D
19
18. The EIA process under the 2006 Notification serves as a balance between
development and protection of the environment: there is no trade-off between the
two. In laying down a detailed procedure for the grant of an EC, the 2006
notification attempts to bridge the perceived gap between the protection of the
environment and development. The basic postulate of the 2006 Notification is
that the path which is prescribed for disclosures, studies, gathering data,
consultation and appraisal is designed in a manner that would secure decision
making which is transparent, responsive and inclusive. While the BDA Act was
enacted with the purpose of establishing a development authority for the
development of the city of Bangalore and adjacent areas, the 2006 Notification
embodies the notion that the development agenda of the nation must be carried
out in compliance with norms stipulated for the protection of the environment and
its complexities. The BDA Act and the 2006 Notification operate in different fields.
It cannot be said that a site is deemed identified for the purpose of triggering the
obligations under the 2006 Notification upon the issuance of a preliminary
notification under Section 17 of the BDA Act. Adopting a contrary interpretation
would lead to the absurd result where a project proponent is obligated to carry
out the EIA process for a scheme even prior to the grant of government sanction
and a final notification carrying into effect the proposed scheme. In this view of
the matter, the prospective site is deemed to be identified only upon the issuance
of the final notification under Section 19 after the proposed scheme has received
Government sanction under Section 18(3).
PART E
20
19. The final notification under Section 19(1) of the BDA Act was issued on 29
June 2007 following the grant of government sanction for the acquisition of the
land. This being after the coming into force of the 2006 Notification, the
contention urged by the appellant that the project commenced prior to the coming
into force of the 2006 Notification cannot be accepted.
E Applicability of the EIA Notification 2006
20. Essentially, this Court is required to address the contention urged by Mr
Shyam Divan, learned Senior Counsel appearing on behalf of the appellant that
the PRR project, being neither a project falling within Section 2 of the National
Highways Act 1956 or Section 3 of the Karnataka Highways Act 1964, does not
fall within the ambit of the Schedule to the 2006 Notification.
21. Para 2 of the 2006 Notification reads thus:
“2. Requirements of prior Environmental Clearance (EC):-
The following projects or activities shall require prior
environmental clearance from the concerned regulatory
authority, which shall hereinafter be referred to as the Central
Government in the Ministry of Environment and Forests for
matters falling under Category „A‟ in the Schedule and at
State level the State Environment Impact Assessment
Authority (SEIAA) for matters falling under Category „B‟ in the
said Schedule, before any construction work, or preparation
of land by the project management except for securing the
land, is started on the project or activity:
(i) All new projects or activities listed in the Schedule to this
notification;
(ii) Expansion and modernization of existing projects or
activities listed in the Schedule to this notification with
addition of capacity beyond the limits specified for the
concerned sector, that is, projects or activities which cross the
threshold limits given in the Schedule, after expansion or
modernization;
PART E
21
(iii) Any change in product - mix in an existing manufacturing
unit included in Schedule beyond the specified range.”
(Emphasis supplied)
Para 2(1) of the 2006 Notification stipulates that only projects listed in the
Schedule must be granted prior EC. Para 7(f) of the Schedule to the 2006
Notification, as originally enacted reads:
Project or Activity Category with threshold limit Conditions, if any
A B
(1) (2) (3) (4) (5)
7(f) Highways i) New National Highways; and ii) Expansion of National High ways greater than 30 KM, involving additional right of way greater than 20m involving land acquisition and passing through more than one State.
i) New State Highways; and ii) Expansion of National / State Highways greater than 30 km involving additional right of way greater than 20m involving land acquisition.
General Condition shall apply
22. The schedule to the 2006 Notification stipulates that projects listed in
column 3 must be granted prior EC from the MoEF-CC while projects listed in
column 4 must be granted prior EC from the SEIAA. The general conditions
applicable are listed at the end of the Schedule. 13
Column 3 of para 7(f) includes
new national highways and the expansion of existing national highways while
column 4 includes new state highways and the expansion of existing state
highways. Admittedly, in the present case, no notification was issued under either
the National Highways Act 1956 or the Karnataka Highways Act 1964 notifying 13
“Any project or activity specified in Category „B‟ will be treated as Category A, if located in whole or in part within 10 km from the boundary of: (i) Protected Areas notified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as notified by the Central Pollution Control Board from time to time, (iii) Notified Eco- sensitive areas, (iv) inter-State boundaries and international boundaries.”
PART E
22
the PRR project as a highway under those enactments. Initial discussions took
place at the Government of Karnataka level regarding the transfer of the PRR
project to the National Highways Authority of India 14
. On 10 January 2018, the
Central Road Transport Ministry was informed that the Government of Karnataka
had granted its consent to transfer the said project to the NHAI on an “as it is”
basis. However, the Government of Karnataka, by its order dated 24 June 2008,
withdrew the proposal to transfer the PRR project to the NHAI.
23. There is however another aspect of the matter that warrants the attention
of this Court. Para 7(f) of the Schedule to the 2006 Notification has been
amended 15
since the coming into force of the 2006 Notification.
24. Prior to the issuance of the 2006 Notification, a draft notification was
published in the official Gazette on 15 September 2005 stipulating that comments
may be sent to the MoEF-CC within sixty days from the date on which the
notification was published. Para 7(f) of the Schedule to the draft notification
reads:
S. No. Project or
Activity
NIC code
(2004)
ISIC
code
Category Conditions
if any A A/B B
(f) Roads
Highways
45203* All new National Highways, Express ways and bypasses >= 30 Km length
- All State Highway projects >= 30 km length Or
GC-1
14
NHAI 15
Notifications dated 11 November 2007, 1 December 2009, 4 April 2011 and 22 August 2013.
PART E
23
Or All National Highways, Express way expansion projects >= 30 km length and additional right of way of more than 20m
All State Highway expansion projects >= 30 km length and additional rights of way of more than 20 m
In the draft notification, para 7(f) to the Schedule included the term „expressway‟
under category „A‟ projects. However, in the final 2006 Notification, the word
„expressway‟ was deleted. Absent any conclusive reason for the deletion from the
draft notification prior to it coming into force, such deletion cannot be used to
construe the terms of the 2006 Notification or subsequent amendments thereto.
25. In exercise of the powers conferred by sub-section (1) and clause (v) of
sub-section (2) of Section 3 of the Environment (Protection) Act 1986 read with
clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Act 1986, the
Central Government issued a notification dated 1 December 2009 amending,
inter alia, para 7(f) of the Schedule to the 2006 Notification. Para (xv) of the
amending notification reads:
“(xv) against item 7(f),
(a) In column (4), for the entry, the following entry
shall be substituted namely:-
“i) All State Highway Projects; and
PART E
24
ii) State Highway expansion projects in hilly
terrain (above 1,000 m AMSL) and or
ecologically sensitive areas”
(b) in column (5) for existing entry, the following
entry shall be substituted, namely:-
“General Conditions shall apply.
Note: Highways include expressways.”
Following the 2009 amendment, column 5 of para 7(f) to the Schedule which read
“General Condition shall apply” was substituted to stipulate that in addition to the
application of the general conditions, highways include expressways.
26. Prior to the amendment, a draft notification was published on 19 January
2009 seeking comments and objections thereto. The MoEF-CC, by its order
dated 3 July 2009 constituted a Committee under the Chairmanship of Shri J M
Mauskar, Additional Secretary to consider the comments received on the draft
notification, conduct meetings with the various stake holders and make
recommendations for the finalization of the notification. The Committee held
various meetings with concerned stakeholders. The MoEF-CC published the
report of the Committee titled “Report of the Committee constituted under the
Chairmanship of Shri J M Mauskar, Additional Secretary to examine the
comments / suggestions on the Draft Amendments to EIA Notification,
2006” in October, 2009. Numerous comments were received by the Committee
on various aspects of the draft notification including the proposed amendment to
para 7(f) of the Schedule. The initial draft notification only sought to modify
column 4 of para 7(f). However, comments were received by the Committee
PART E
25
stating that a specific reference to expressways must be made. The Committee
formulated its analysis in the following terms:
“Analysis: The main suggestion relates to expansion of the
scope of the notification by including expressways, bypasses,
Major district roads, tunnelling for roads within city limits,
peripheral roads around municipal corporation limits. There is
also a request for expanding the right of way limit from 20
metres to 60 metres. BRO has sought exemption of their
projects up to 50 kilometres. From the comments received,
it is perceived that Expressways are different from
Highways. However, keeping in view the objective of the
Notification, it needs to be explicitly clarified in the
Notification that Highways include Expressways. In
regard to other items these may be considered separately. In
regard to the proposal for enhancing the right of way limit
from 20 metres to 60 metres, this may not be accepted as it
would involve significant changes in land use and issues of
rehabilitation.”
(Emphasis supplied)
27. The analysis of the Committee recorded that the main suggestions related
to the expansion of the scope of the Notification by including within its ambit
expressways, bypasses, major district roads, tunnelling for roads within city limits
and peripheral roads around municipal corporation limits. Significantly, the
Committee took note of the perception that highways and expressways differed
from each other. Though it appeared from the comments that an expansion was
sought in the scope of the 2006 Notification, the Committee explicitly clarified that
the term „highways‟ includes „expressways‟. For other items, the Committee
stated that they may be considered separately. The clarification issued for
highways and expressways did not amount to an expansion in the scope of the
2006 Notification but only made clear that the term highways always included
expressways.
PART E
26
28. Where an amendment is clarificatory in nature, such amendment is
deemed to be retrospective in its application. In State Bank of India v V
Ramakrishnan 16
, the question before a two judge Bench of this Court concerned
whether Section 14 of the Insolvency and Bankruptcy Code, 2016 which provides
for a moratorium for the limited period mentioned, on admission of an insolvency
petition, would apply to a personal guarantor of a corporate debtor. In the
judgment of National Company Law Appellate Tribunal which was under appeal,
it was held that as a Resolution Plan binds personal guarantors as well under
Section 31, the moratorium under Section 14 would apply to personal guarantors.
Assailing this, the appellant relied upon the Insolvency Committee Law
proceedings to contend that an amendment to Section 14 which stipulated that
the moratorium shall not apply to a surety in a contract of guarantee to a
corporate debtor was clarificatory in nature and that personal guarantors were
always intended to fall outside the operation of the moratorium. Accepting this
contention, Justice RF Nariman, speaking for the Court held:
“31. The Insolvency Law Committee, appointed by the
Ministry of Corporate Affairs, by its Report dated 26-3-2018,
made certain key recommendations, one of which was:
“(iv) to clear the confusion regarding treatment of
assets of guarantors of the corporate debtor vis-à-vis
the moratorium on the assets of the corporate
debtor, it has been recommended to clarify by way of
an explanation that all assets of such guarantors to
the corporate debtor shall be outside scope of
moratorium imposed under the Code;” (Emphasis
supplied)
…
The Committee concluded that Section 14 does not
intend to bar actions against assets of guarantors to
the debts of the corporate debtor and recommended
16
(2018) 17 SCC 394
PART E
27
that an explanation to clarify this may be inserted in
Section 14 of the Code. The scope of the moratorium
may be restricted to the assets of the corporate
debtor only.”
33. The Report of the said Committee makes it clear that the
object of the amendment was to clarify and set at rest what
the Committee thought was an overbroad interpretation of
Section 14.”
The Court noted that the Committee clarified that it was never intended that the
moratorium under Section 14 applied to personal guarantors of corporate
debtors. Accordingly, an amendment was enacted to Section 14. The Court then
proceeded to hold, relying on consistent precedent of this Court, that a
clarificatory amendment has retrospective application. A similar position is
expounded by G P Singh in his seminal work Principles of Statutory
Interpretation. He states:
“…An amending Act may be purely clarificatory to clear a
meaning of a provision of the principal Act which was already
implicit. A clarificatory amendment of this nature will have
retrospective effect and, therefore, in the principal Act was
existing law when the amendment came into force, the
amending Act also will be part of the existing law.”
29. An amending provision which clarifies the position of law which was
considered to be implicit, is construed to have retrospective effect. The position of
the retrospective application of clarificatory amendments to notifications is
analogous to the position under statutory enactments. In the present case, the
Committee appointed by the MoEF-CC clarified that the term highways included
expressways and suggested that a suitable amendment be issued to that effect.
Based on the report of the Committee, a clarificatory amendment was issued in
column 5 of para 7(f) to stipulate that highways include expressways. This being
PART E
28
the position, this Court is required to analyze whether the PRR project qualifies
as an expressway falling within the ambit of para 7(f) of the Schedule.
30. Neither the National Highways Act 1956 nor the Karnataka Highways Act
1964 define the term „highway‟. The 2009 amendment to the 2006 Notification is
silent on the definition of the term „expressway‟. It was submitted by the learned
Senior Counsel appearing on behalf of the respondents that the definition by the
Indian Road Congress 17
in the Manual of Specifications and Standards for
Expressways in instructive is instructive.
31. The IRC was set up in 1934 on the recommendation of the Indian Road
Development Committee constituted by the Government of India for the
development of roads in the country. An expert group was constituted in 2013 to
formulate a Manual of Specifications and Standards for Expressways. The report,
which was released in the same year, defined an expressway in the following
terms:
“…For this purpose, the Expressway is defined as an arterial
highway for motorized traffic, with divided carriageways for
high speed travel, with full control of access and provided with
grade separators at location of intersections. Generally, only
fast-moving vehicles are allowed access on Expressways…”
An expressway is defined as an arterial highway designed for high-speed travel
with the objective of reducing traffic and generally involving control of access.
Other indicators are the provision of toll booths, divided carriageways and grade
17
IRC
PART E
29
separators located at intersections. The assessment of whether a road project is
an expressway is to be determined on a case by case basis.
32. In the present case, the stated purpose of the PRR project is thus:
“1) To decongest the traffic in Bangalore City;
2) To cater intercity connectivity and intercity traffic;
3) To reduce pollution in the city
4) To reduce heavy vehicles traffic i.e., Lorry and Trucks
5) To decongest the traffic on outer ring road.”
The brief note submitted by the appellant to this Court states that:
“…the PRR proposed to be implemented by the BDA is an 8
lane divided road around Bangalore city is primarily ease the
vehicular traffic congestion on its city roads. The
proposed cross-section consists of 4 lane main road in each
traffic direction and 3 lane service road on either side of the
main road for local traffic. The main road and the service road
will be separated by access-controlled facility. The
engineering designs will be carried out in accordance
with Indian roads congress standards.”
(Emphasis supplied)
The primary purpose of the PRR project is to ease vehicular traffic congestion in
the city. The main road and the service road are to be separated by access-
controlled facilities. The engineering designs are to be carried out in accordance
with the standards laid down by the IRC. The EIA report prepared by the
appellant describes the PRR project in the following terms:
“The proposed Peripheral Ring Road (PRR) project alignment
starts from – Tumkur Road as CH.17a (distance of 16-20 Km
from Bangalore city railway station) on NH4 & terminate at
Hosur Road near Begur CH.64.65 Km (65Km) for a smooth
flow of traffic, to reduce the traffic congestion, pollution
intensity and travel time.”
PART E
30
…
Highway Design
The proposed Peripheral Ring Road (PRR) alignment has
been designed for a speed of 100 Kmph where ever
possible. However, at a few locations that designs have
been carried out for 80 Kmph owing to restrictions at site. The
vertical curves are designed as per the guidelines of IRC
SP:23.
…
Interchanges
An interchange is a grade separated intersection with
connecting roadways for turning traffic between highway
and approaches. The intersections are designed during the
construction of Peripheral Ring Road (PRR) after
contemplating the guidelines and schemes given in AASHTO
and IRC: 92 guidelines.
…
Toll Plaza
…All the traffic passing through the toll plaza section of road
will have to pay toll. The public bus transport will be exempted
from paying the toll.
Accessibility
The Peripheral Ring Road (PRR) is speculated as a toll road.
Provisions are provided for toll booths for tolling the road
system. Accessibility to Peripheral Ring Road (PRR) is
restricted to the following categories of roads
National Highways;
State Highways;
Major District roads.
“The proposed project being a new state highway having 65
Km length with Right of Way of 75m the project falls under
category “b” in the Schedule of the EIA notification 2006 and
requires environmental clearance from SEIAA”
(Emphasis supplied)
PART E
31
33. The PRR project is expected to be an 8 lane main carriageway highway (4
+ 4 bi-directional), along with a 6 lane road service road (3 + 3 bi-directional)
having a right of way of 75 meters and total length of 63.5 kms. The EIA report
stipulates that the PRR project was conceptualised with the salient purpose of
decongesting the traffic in the city and catering to intercity connectivity and
intercity traffic. This, it was stated, would significantly reduce pollution intensity
and travel time. The EIA report clarifies that the project is designed to cater to
high speed vehicular traffic with vehicles plying at speeds of 100 Kms/hr, where
possible, and 80Kms/hr in other places.
34. Moreover, the report stipulates that the project also comprises of ten
interchanges and sixteen toll booths. It is stated that access to the road is
restricted only to national highways, state highways and major district roads. In
this view of the matter, there is no doubt that the PRR project is an expressway
falling within the ambit of para 7(f) of the Schedule to the 2006 Notification. The
PRR project commenced on the issuance of the final notification under Section
19(1) of the BDA Act on 29 June 2007. Having concluded that the PRR project is
an expressway, the appellant as project proponent was under an obligation under
para 7(f) of the Schedule to the 2006 Notification to seek a prior EC to implement
the project.
PART F
32
F Compliance with the procedure under the EIA Notification 2006
35. The next question to be analysed is whether the EIA process followed by
the appellant was in compliance with the procedure stipulated under the 2006
Notification. In the written submissions and the rejoinder filed by the appellant
before this Court, it was contended that the EIA process leading upto the
preparation and submission of the EIA report to the SEAC was in compliance
with the procedure stipulated under the 2006 Notification. It was contended that
the NGT erred in concluding that there was a substantial delay in the preparation
of the EIA report and in suspending the operation of the EC granted to the PRR
project. On the other hand, in the written submissions filed by the respondents, it
was contended that the delay in the preparation of the EIA report was in
contravention of the OM dated 22 March 2010 issued by the MoEF-CC
prescribing a validity period of four years for ToRs from the date on which they
are issued. In assessing the rival contentions, it becomes necessary to analyse
the EIA process followed by the appellant, leading up to the grant of the EC.
36. On 10 September 2009, the appellant filed an application with the SEAC
seeking a prior EC for the PRR project as a category „B‟ project under the 2006
Notification. In accordance with the 2006 Notification, the SEAC at its 46th
meeting held on 21 November 2009 formulated and issued the ToR for the PRR
project on which basis the appellant was required to carry out the EIA process.
The final EIA report was placed before the SEAC and the SEIAA in November
2014. The SEAC held meetings on 5 April 2013, 9 June 2014, 11-12 August 2014
and 11-18 November 2014. At its final meeting between 11-18 November, the
PART F
33
SEAC recommended the grant of an EC for the PRR project to the SEIAA. The
EC was granted on 20 November 2014.
37. The SEAC, at its 101st meeting dated 5 April 2013 decided to recommend
to the SEIAA the closure of the project file since the ToRs were issued over two
years prior to the meeting and there was no correspondence by the appellant
indicating any progress on the EIA process. Acting upon the letter of the SEAC,
the SEIAA, at its 66th meeting dated 17 May 2013 closed the file relating to the
grant of EC for the PRR project and communicated its decision to the appellant
on 25 July 2013. By a letter dated 24 August 2013, the appellant requested the
SEIAA to re-open the file. The SEIAA, at its 71st meeting dated 3 September
2013 decided to re-open the file, subject to the payment of the requisite
processing fee. A public hearing was conducted on 6 February 2014. The SEAC,
at its 111th meeting dated 9 June 2014, decided to defer the consideration of the
appellant‟s proposal as the EIA report was not made available to the Committee
members. By a letter dated 2 August 2014, the appellant placed before the SEAC
the EIA report which was prepared after the public hearing was conducted in
February 2014. The SEAC, at its 115th meeting dated 11-12 August, 2014 noted
numerous deficiencies in the information submitted by the appellant and decided
to obtain additional information which was communicated to the appellant on 28
August 2014.
38. The appellant provided to the SEAC a point-wise reply to the information
sought along with additional samples on ground water, surface water and soil. A
PART F
34
final EIA report was prepared by the appellant in October 2014 and submitted to
the SEAC. At its 121st meeting between 11th and 18th November 2014, the
SEAC recommended to the SEIAA the grant of EC to the PRR project. The
SEIAA issued the EC on 20 November 2014.
39. Under the 2006 Notification, the process to obtain an EC for new projects
comprises a maximum of four stages, all of which may not apply depending on
the specific case stipulated under the Notification: screening, scoping, public
consultation and appraisal. At the scoping stage, the project proponent submits
information in Form 1 to the EAC or the SEAC, as the case may be, for the
preparation of a comprehensive ToR. Following this, the project proponent
prepares a summary EIA for the purpose of the public consultation process. The
summary EIA is presented at the public hearing to invite comments and
objections, if any. Based on the comments received and after addressing the
objections raised, a final EIA report is prepared and sent to the concerned
regulatory authority. At this stage, the regulatory authority must examine the
documents “strictly with reference to the ToR” and communicate any inadequacy
to the EAC or the SEAC, as the case may be, within 30 days of the receipt of the
documents. Within sixty days of the receipt of all the documents, the EAC or the
SEAC, as the case may be, shall complete the appraisal process as prescribed in
Appendix V. The appraisal stage involves detailed scrutiny by the EAC or the
SEAC of all the documents submitted by the applicant for the grant of EC. The
EAC and the SEAC are charged with evaluating the information submitted by the
PART F
35
applicant in Form 1/Form 1A with reference to the ToR which was issued for the
preparation of the EIA report.
40. Significantly, the process of obtaining an EC commences from the
production of the information stipulated in Form 1/Form 1A. Information submitted
in Form 1 relies on data and information on an “as is” basis at the relevant time of
submitting information. Material information regarding the particulars of the
proposed project as well as the potential impact on the environment is sought to
enable the EAC or the SEAC to prepare a comprehensive ToR on which basis
the applicant proceeds to prepare the EIA report. As the information in Form 1 is
submitted on the basis of prevailing environmental conditions as on the date of its
preparation, it is necessary to ensure that the EIA process is contemporary to the
submission of information in Form 1 and the issuance of the ToR. The MoEF-CC,
noting situations where some EIA reports were prepared belatedly on the basis of
outdated ToRs, issued a notification on 22 March 2010 prescribing a time limit for
the validity of ToRs which stated thus:
“Office Memorandum
Sub: Time limit for validity of Terms of Reference (TORs)
prescribed under EIA Notification, 2006 for undertaking
detailed EIA studies for developmental projects requiring
environmental clearance – Regarding.
The EIA Notification, 2006 has prescribed a time limit for
validity environmental clearance granted to a project.
However, no time limit has been specifically provided under
the EIA Notification for the TORs prescribed for undertaking
detailed EIA studies. As a result, the TORs once
prescribed would continue to be valid indefinitely, which
is definitely not desirable because the TORs are very
much site specific and are dynamic to some extent
depending upon the site features, its land use and the
PART F
36
nature of development around it. The matter has been
considered in the Ministry of Environment & Forests.
It has been decided that from 1.4.2010, the prescribed TORs
would be valid for a period of two years for submission of the
EIA/EMP Reports, after public consultation where so
required. This period will be extendable to the 3 rd
year, based
on proper justification and approval of the EAC/SEAC, as the
case may be. Thus, an outer limit of three years has been
prescribed for the validity of the TORs with effect from
1.4.2010.
In case of the proposals which has been granted TORs
prior to the issue of this O.M., the EIA/EMP reports
should be submitted, after public consultation where so
required, no later that four years from the date of the
grant of the TORs, with primary data not older that three
years.”
(Emphasis supplied)
41. The MoEF-CC stated that it was clearly undesirable to indefinitely continue
a ToR. The environment is, by its very nature, dynamic. Soil quality, air
characteristics and surrounding flora and fauna are among the characteristics of
the environment which are constantly in a state of flux. A robust framework of
environmental governance accounts for the dynamic nature of the environment. It
is for this reason that project proponents are also required to ensure the
submission of an Environmental Management Plan and compliance with the
monitoring procedures envisaged under the 2006 Notification. An indefinite ToR
defeats the very purpose which underlies the 2006 Notification for it may lead to
situations where the state of the environment has changed drastically, yet the EIA
process is carried out on the basis of outdated information. For this reason, the
MoEF-CC prescribed a validity period of two years for TORs, which could be
extended by the EAC or the SEAC only by another year. Furthermore, extension
is to be granted only where the project proponent provides adequate justification
PART F
37
in writing. Relevant to the present case, the notification dated 22 March 2010
stipulates that where ToRs were granted prior to the issue of the OM, the EIA
report must be submitted within four years from the date on which the ToR was
issued, with primary data not being older than three years.
42. By another notification dated 22 August 2014, the MoEF-CC clarified the
validity of the ToRs prescribed under the 2006 Notification in the following terms:
“…2(iv) Extension of validity of TORs beyond the outer limit of
three years for all projects or activities and four years for
River Valley and HEP projects shall not be considered by
the Regulatory Authority. In such cases, the project
proponent will have to start the process de novo and
obtain fresh TORs in case the proponent is still
interested in pursuing the clearance for the project. Re-
use of old baseline data (provided it is not more than 3
years old) for the purpose of preparation of fresh EIA and
EMP report will be considered subject to due diligence by
the EAC/SEAC which may make appropriate
recommendations including the need for revalidation.
Baseline data older than 3 years will not be used for
preparation of EIA/EMP report. In any case, the PH shall
have to be considered afresh in such cases.”
(Emphasis supplied)
The MoEF-CC clarified that where the time period prescribed for the ToR has
expired, the regulatory authority “shall not” consider any further extension and a
project proponent seeking to continue the project must initiate the EIA process de
novo. This includes the submission of fresh information in Form 1 and the
prescription of a new ToR to guide the preparation of the EIA report. The
extraordinary prescription of conducting the EIA process afresh was in keeping
with the commitment to a framework of environmental governance which
accounts for the dynamic nature of the environment.
PART F
38
43. By another notification dated 7 November 2014, the MoEF-CC issued a
notification clarifying the time limit prescribed for ToRs as well as the
consideration of EIA reports by the SEAC which relied on primary data older than
three years. The notification, in so far as it is relevant reads:
“2. The matter has been further examined in the Ministry in
the light of the decision taken as part of clearance reform and
it is felt that it would not be logical to start the process of
environment clearance de novo including taking fresh Terms
of Reference (TORs), if the base line data collected for
preparation of EIA/EMP report and/or public consultation
are more than three years old.
3. Thus, it has been decided to substitute para 2(v) of the
above referred Office Memorandum No. J-110113/41/2006-
IA.II(I) (part) dated 22.08.2014 with the following:
“(v) (a) All the projects which have been recommended by the
Expert Appraisal Committee (EAC) shall be considered by the
Competent Authority even if data collected has become more
than three years old as the ToRs itself used to have three
years validity and extendable by one more year.
(b) All the projects where the project proponent have already
submitted their EIA/EMP Report for consideration by the EAC
though the cases have still not been placed before the EAC
and meanwhile the data has become more than three years
old, shall be considered for the same reasons as given in
para (a) above….”
(Emphasis supplied)
This notification stipulated that the „concerned authority‟ shall consider EIA
reports for the grant of EC even where the primary data relied upon was
collected beyond three years from the preparation of the EIA report. This was
because the ToR itself was extendable beyond three years by an additional year.
Thus, where the EIA report is prepared within the prescribed time period for the
validity of the ToR, the concerned authority may consider an EIA report which
relies on primary data which was collected more than three years ago i.e. in the
PART F
39
fourth year preceeding the preparation of the EIA report. The effect of the
notification was to prescribe a uniform validity period of four years for both ToRs
and the primary data collected. However, the stipulation that a fresh EIA process
must be undertaken where the ToR has expired was retained.
44. In the present case, the ToR was issued on 21 November 2009, prior to
the issue of the OM dated 22 March 2010. Hence, by virtue of the notification, the
appellant was required to submit the EIA report within four years from the date of
the issuance of the ToR i.e before 21 November 2013. The SEAC was under a
corresponding obligation to refuse the consideration of any EIA report prepared
after the expiry of the ToR. Public hearing was conducted belatedly only on 6
February 2014 and the EIA report prepared thereafter was placed before the
SEAC only on 2 August 2014, nearly a year after the ToR had expired. We
cannot gloss over the failure of the project proponent to comply with the OMs
issued by the MoEF-CC prescribing a time limit for the validity of the ToR. The
decision of the SEAC to proceed with the EIA report as well as seek additional
information from the project proponent despite the expiry of the ToR suffers from
a non-application of mind and is unsustainable.
45. Moreover, primary data was collected in December 2009 and February
2010. The EIA report was prepared after the public hearing was conducted in
February 2014, nearly a year after the primary data had expired in terms of the
OMs issued by the MoEF-CC. In the final EIA report prepared in October 2014, it
is stated:
PART F
40
“1.8 Study Period
To prepare the Rapid Environmental Impact Assessment
(REIA) report for the proposed project, the data was
collected from December to February (2009-2010) in the
study area. Micro Meteorological parameters were recorded
such as wind speed, wind direction and relative humidity on
hourly basis during the study period.”
“3.5 Monitoring period
Meteorological data was collected for the study area during
the months of winter (December, January and February
(2009-2010), Wind Speed, Wind Direction, Temperature and
Relative Humidity were recorded on hourly basis for the total
study period”
(Emphasis supplied)
46. Admittedly, the EIA reports prepared in August and October 2014 relied on
primary data which was collected between the months of December 2009 and
February 2010. The EIA report was prepared prior to the coming into force of the
OM dated 7 November 2014 by which the MoEF-CC extended the validity of
primary data collected from a period of three years to four years. Even if the
benefit under the notification were extended to the appellant, it was duty bound to
collect fresh primary data upon the expiry of four years from the date of issuance
of the ToR i.e. 21 November 2013. This was evidently not done. This being the
case, there is no manner of doubt that the final EIA report prepared on the basis
of an expired ToR and primary data was in contravention of the OMs dated 22
March 2010, 22 August 2014 and 7 November 2014 issued by the MoEF-CC and
could not form the basis of a validly issued EC.
47. It is also pertinent to note that a Rapid EIA along with a socio-economic
study was prepared by M/s Ramky Enviro Engineers Ltd., the EIA consultant for
PART F
41
the PRR project on behalf of the appellant in November 2010. This EIA report
relied on primary data collected between the months of December 2009 and
February 2010 and analysed the impact of the proposed PRR project on the
environment. A perusal of both the 2010 rapid EIA report and the EIA report
prepared in October 2014 reveals that the data as well as the analysis of the
impact of the proposed PRR project on the environment in the 2014 report is
similar to that in the 2010 Rapid EIA report. It appears that the EIA consultant has
reproduced verbatim, portions of the Rapid EIA report which was prepared in the
year 2010. No effort was taken by the appellant to ensure the fresh collection of
data in compliance with its obligations under the OMs issued by the MoEF-CC. In
this view of the matter, the contention urged on behalf of the respondents that
there was a substantial delay in the carrying out of the EIA process, vitiating the
process commends itself for our acceptance.
48. In the rejoinder and brief note of submissions filed before this Court by the
appellant, it was contended that any delay in the collection of primary data was
remedied by the collection of fresh samples in reply to the questions raised by the
SEAC in its 115th meeting dated 11-12 August, 2014. The primary data furnished
in reply, it was urged, dated to the year 2014 and not 2010. In assessing this
contention, it is necessary to advert to the questions raised by the SEAC to the
appellant. The SEAC, at its 115th meeting noted shortfalls in the information
submitted by the appellant and decided to obtain additional information. This was
communicated to the appellant on 28 August 2014. The SEAC sought additional
information on the following:
PART F
42
“
1. EIA accredited consultant for Highway projects was
not present
2. Declaration of experts involved in preparation of EIA
report is not furnished in the report
3. Accessibility to all villages on either sides of the
proposed road has to be preferably through underpasses.
4. Baseline data of hardness of borewell water furnished
in the report is found to be wrongly analysed.
5. Surface water analysis report is found to be with
wrong results.
6. All the parameters required to be tested as per
NABET guidelines are to be analysed and furnished with lab
reports.
7. Sampling locations are to be marked on maps
windrose diagram to be superimposed.
8. In AAQ analysis, CO concentration is reported to be
at dangerous level and this has to be checked again.
9. EMP to be revised and has to be site specific.
10. Sensitive location monitoring to be explicitly
mentioned in EIA report with details of location.
11. Regarding information on forest land in the EIA report
there are contradicting information in the report.
12. Trees to be planted are to be known in advance to
grow samplings.
13. Soil analysis to be revalidated.
14. Borrow area of earth to be part of EIA report.
15. Emergency relief operation to be included.
16. As per the proposals submitted in page no 10. “No
forest land is involved in the proposed project. Hence forest
clearance is not required” whereas in the same proposal page
no 21 “the total forest land to be diverted is estimated to be
1.5ha in the jarakbande kaval at Ch. 12.000” to 12.500. The
contradictory information to be explained with documents.
17. In the same proposal under the head 10.3
afforestation plan : “Species proposed for afforestation plan
are Avicennia officinalis, Avicennia alba, Rhizophora
mucronara & Rhizophora aciculate etc., they are mangrove-
tropical tree growing in shoes ie., they are endemic in sea
shores (coastal area in the Kundapur coast) etc.
18. PP is advised to consult the forest wing under BDA to
design (1 to 2) rows depending on the availability of the area)
the strip plantations on either side of the proposed road with
suitable native fruit yielding shade bearing & fast growing
species (instead of this consultant), to improve the micro
climate. Committee decide to obtain additional information
sought above and to recall the proposal alter receipt of the
information.”
PART F
43
By its letter dated 12 November 2014, the appellant provided to the SEAC a
point-wise reply to the information sought along with additional samples on
ground water, surface water and soil.
49. The questions framed by the SEAC and responses filed by the appellant
demonstrate that there existed serious deficiencies in the EIA report which was
submitted to the SEAC. This included outdated data on the AAQ air analysis, soil
quality, forest land and the number of trees to be planted. The SEAC noted
certain shortfalls which concerned limited aspects of the EIA report including the
baseline data of hardness of borewell water, soil analysis and forest land. In
addition to this, the SEAC directed that certain samples collected were to be
marked on the map submitted to the SEAC in the EIA Report. Significantly, the
SEAC noted the discrepancy concerning the disclosure of the existence of forest
land. This aspect shall be explored in the course of the judgment.
50. The SEAC framed questions and sought information which was
clarificatory in nature and covered specific substantive aspects of the data
submitted in the EIA report. The EIA report on the other hand covers a wide
range of matters which include terrain, topography, land requirements, terrain
classification, wind and noise pattern analysis, air quality analysis, surface and
ground water analysis, soil environment analysis, impact of flora and fauna and
environmental monitoring plans.
PART F
44
51. The submission of additional fresh data on a few points raised in the form
of a query on behalf of the SEAC does not remedy the general obligation to
ensure that the EIA report was prepared within a time period of four years from
the date of the issuance of the ToR, relying on primary data that was no older
than four years. Merely because some additional information was sought which
required the furnishing of additional details and the collection of fresh samples, it
cannot be said that such an exercise cures the defect arising from the
preparation of an EIA report outside the time period prescribed by the MoEF-CC.
Significantly, even at the relevant time when information was sought from the
project proponent, both the ToR as well as the primary data upon which the EIA
report was prepared was beyond the period of their validity. In such a case, the
SEAC, by seeking additional information, has traversed beyond the power
conferred upon it under the 2006 Notification.
52. The SEAC proceeded to recommend to the SEIAA the grant of the EC to
the PRR project in contravention of the obligations stipulated under the OMs
issued by the MoEF-CC. Significantly, the SEAC considered the final EIA report
only at its 121st meeting between 11 – 18 November 2014 when the OM dated
22 August 2014 issued by the MoEF-CC was in force. The SEAC was under an
obligation to direct the appellant to conduct the EIA process de novo. The SEAC
and the project proponent cannot circumvent the obligation to ensure reliance on
contemporary data by seeking additional information beyond the prescribed
validity of the ToR and primary data. The SEAC has clearly erred in
PART G
45
recommending to the SEIAA the grant of EC despite the non-compliance by the
appellant with the prescribed time limit for the preparation of the EIA report.
G Deficiencies in the EIA report
G.1 Accreditation of the EIA consultant
53. In the written submissions submitted by the appellant, it was contended
that the EIA process was undertaken on behalf of the appellant by M/s Ramky
Enviro Engineers Pvt. Ltd., a non-accredited EIA consultant. This, it was
submitted, was in contravention of the OM dated 2 December 2009 issued by the
MoEF-CC mandating that only sector-specific accredited EIA consultants should
be engaged to carry out the EIA process.
54. The MoEF-CC, by its notification dated 2 December 2009, mandated the
registration of EIA consultants under the scheme of Accreditation and
Registration of the National Accreditation Board of Education and
Training/Quality Council of India. The relevant portion of the notification reads:
“…It has been felt in the Ministry that there is a need to
enhance the quality of EIA reports as the Consultants
generally, undertake preparation of EIA/EMP Reports in many
sectors and in some instances without requisite expertise and
supporting facilities like laboratories for testing of samples,
qualified staff etc. The good quality EIA Reports are pre-
requisites for improved decision making.
…
3. After detailed consideration of the issued relating to the
accreditation of the Consultants, following decisions have
been taken:
All the Consultants/Public Sector Undertaking (PSUs)
working in the area of Environmental Impact Assessment
PART G
46
would be required to get themselves registered under the
scheme of Accreditation and Registration of the
NABET/QCI.
Consultant would be confined only to the accredited
sectors and parameters for bringing in more specificity in
the EIA document.
…
4. It is decided, in the above factual matrix that no EIA/EMP
Reports prepared by such Consultants who are not registered
with NABET/QCI shall be considered by the Ministry after
30th June, 2010.”
(Emphasis supplied)
55. The MoEF-CC prescribed that it is mandatory for every consultant or PSU
acting as an EIA consultant to get themselves registered under the accreditation
scheme of the NABET/QCI. Moreover, a consultant would be confined to the
sector for which they receive accreditation to ensure expertise and specificity in
the carrying out of the EIA process. This was also to ensure the availability of
facilities like laboratories. It was stated that a good quality EIA report is a pre-
condition for improved decision-making. In the written submissions before this
Court, the appellant urged that M/s Ramky Enviro Engineers Pvt. Ltd. was hired
in November 2009 upon the issuance of the ToRs prior to the coming into force of
the OM dated 2 December 2009. Consequently, there was no obligation to
engage an accredited consultant for the preparation of the EIA report. Be that as
it may, Ramky Enviro Engineers Pvt. Ltd, Hyderabad was granted the status of a
„consultant with accreditation‟ vide OM dated 30 June 2011 issued by the MoEF-
CC. At the time of the preparation of the EIA report which was submitted to the
SEAC, the EIA consultant had received accreditation. However, the learned
counsel appearing on behalf of the respondents has also placed on record a copy
of the minutes of the 4th Accreditation Committee Meeting for Re-Accreditation
PART G
47
held on 22 November 2013. The case of Ramky Enviro Engineers Pvt. Ltd,
Hyderabad was considered in the following terms:
“21. Ramky Enviro Engineers Pvt. Ltd., Hyderabad
The case of Ramky Enviro Engineers was discussed earlier in
RAAC meeting dated Oct. 28 2013. Inadequacies with
respect to a) Variation in names of candidate in list of
experts/persons included in EIA b) Implementation of QMS
and c) Quality of EIA were observed. Ramky Enviro was
asked to explain the reasons for shortfalls to Accreditation
Committee (AC)
…
Results of the Re-accreditation (RA) assessment are given
below:
Ramky Enviro Engineers have scored more than 60% as an
organization and therefore qualifies for Cat. A EIA projects.
However, in respect of Completeness and quality of EIA, the
marks are less that 60% indicating scope of improvement
vide points mentioned below in relevant section.
2.1.1 Scope of accreditation
Sl.
No.
Sector No. as
NABET Scheme
Name of Sector Cat.
1 1 Mining A
2 40 Thermal Power plants A
3 20 Petrochemical based processing A
4 21 Synthetic organic processing A
5 1 Industrial estate/parks/SEZ A
6 32 TSDF A
7 38 Building and Large construction A
8 39 Area and Township projects A
56. The Committee noted the deficiencies in the performance of M/s Ramky
Enviro Engineers Pvt. Ltd. as an EIA consultant and indicated a scope for
improvement. The Committee then proceeded to record the sectors for which M/s
Ramky is granted accreditation. Conspicuous in its absence is the grant of
accreditation for serving as an EIA consultant for highway projects. When the
final EIA report for the PRR project was prepared in August/October 2014, M/s
PART G
48
Ramky lacked accreditation to serve as an EIA consultant for highway projects.
This aspect shall be borne in mind in deciding the eventual directions which this
Court seeks to issue.
G.2 Forest land
57. Essentially, the contention urged on behalf of the respondents in its written
submissions before this Court is that there was a patent and abject failure on the
part of the appellant as project proponent, to disclose the diversion of forest land
for the proposed PRR project. The appellant, it was contended, concealed
material information concerning the diversion of forest land and absent the
requisite forest clearance, the EC granted for the PRR project stands vitiated.
58. In the draft EIA report prepared for the PRR project, it was stated:
“The Forest (Conservation) Act, 1980
…No forest land is involved in the proposed project. Hence,
Forest clearance is not required.”
Despite an indication that the proposed PRR project did not involve the diversion
of forest land, the draft EIA report stated:
“…As per the proposed design, the total forest land to be
diverted is estimated to be 1.5 Ha and the chainage wise
details of the same are presented as:
Table 2.2 B. Details of Forest Area proposed to be diverted for the Project Road
Sl.No. Proposed
chainage
Length
(Km)
Forest Village Survey No. Area of the
forest to
be diverted
in HA
1 Ch 12.000
to 12.500
763 M Jarakabande
kavalu
Yelahanka 59 1.5
PART G
49
The draft EIA report noted that 1.5 hectares of forest land in Jarakabande kavalu
is proposed to be diverted between linkages Ch 12.000 and 12.500 for a portion
of the proposed road totaling 763 meters. A similar contradiction is noted in the
final EIA report prepared in October, 2014:
“Initial portion of the Highway is along protected forest areas.
From the site visits and discussion with officials, it is inferred
that there are no noticeable habitats or wild or endangered
animal habitats along close vicinity of the project road…”
The EIA report affirms at numerous places that 1.5 hectares of forest land will be
affected by a part of the project. Despite this, the EIA report proceeds to state:
Sl. No Type of clearance
Statutory Authority
Applicability Project stage Responsibility
1 Prior Environmental Clearance under EIA Notification, 2006
SEIAA Applicable Pre construction
BDA
2 Forest Clearance under Forest Conservation Act, 1980
Karnataka State and Forest Dept & MoEF
Not applicable
Pre construction
BDA
59. The EIA report proceeds on the assumption that no forest clearance is
required despite the diversion of 1.5 hectares of forest land. No explanation has
been provided by the appellant either in the EIA report or in the written
submissions before this Court as to why it was exempt from seeking the requisite
forest clearance. The only indication of remedying the loss of forest cover
provided in the EIA report is thus:
“10.4 Afforestation Plan
Affected Area – Around 1.50 Ha.
PART G
50
Area proposed to be afforested – 4.5 Ha (three times the
affected area)
Afforestation Program will be implemented through the Forest
Department, BDA and regular monitoring will be ensured.
Land will be identified in consultation with state Forest
Department, Bangalore.”
The contradictory stand by the appellant on the forest cover proposed to be
diverted for the proposed project was noted by the SEAC in its 115th meeting
dated 11-12 August, 2014. The SEAC sought additional information from the
appellant on numerous grounds, of which one concerned the potential loss of
forest cover. The SEAC, in its letter to the appellant, noted the contradictory
stand of the appellant and stated:
“…16. As per the proposals submitted in page no 10. “No
forest land is involved in the proposed project. Hence forest
clearance is not required” whereas in the same proposal page
no 21 “the total forest land to be diverted is estimated to be
1.5ha in the jarakbande kaval at Ch. 12.000” to 12.500. The
contradictory information to be explained with documents.”
The appellant furnished a pointwise reply to the question raised by the EAC. It
replied to the question concerning forest land by stating:
“As per the proposed design the total forest land to be
diverted is estimated to be 1.5 ha in the Jarakbande Kaval at
Sh.12.000 to 12.500.
25 acres of land available in possession with BDA is
proposed to be given to Forest Department in lieu of 25 acre
of Forest Land (PRR Chainage between 12 th and 13
th Km in
Survey No. 59 of Jarakbande Kaval approved vide by
authority Subject No. 80/89 dated 17.03.2009.) needed to
PRR.”
The appellant confirmed that 1.5 hectares of forest land is proposed to be
diverted. It was stated that in lieu of the 25 acres of forest land required, the
PART G
51
appellant shall make available to the Forest Department 25 acres of land
available with it.
60. We cannot gloss over the patent contradiction of the appellant as the
project proponent in disclosing the existence of forest land to be diverted for the
purposes of the PRR project. Despite a clear indication that a total 1.5 hectares
of forest land is to be diverted for the purpose of the PRR project, the appellant
sought to remedy its failure in seeking the requisite clearances in a post facto
manner by stipulating that 25 acres of land available with it is to be given to the
forest department in lieu of the forest cover proposed to be diverted for the
project. Post facto explanations are inadequate to deal with a failure of due
process in the field of environmental governance. While the appellant submitted
to the EAC that it had already obtained the consent of the forest department to
divert the proposed forest land, a contradictory stance was taken in the written
submissions filed by the appellant:
“It is stated herein that the PRR passes through 25 acres of
forest land situated in Jarakbande Kaval Forest Area,
Yelahanka Hobli, Bangalore North Taluk and since the
alignment inevitably passed through this, the forest
department was requested on 28.08.2018 to handover the
forest land to the Appellant for the purpose of the PRR
project. Thereafter, the forest department replied on
12.01.2019 requesting for alternate land of 25 acres.”
It was stated by the appellant that it was only on 28 August 2018 that it sought to
remedy its failure in obtaining the requisite forest clearance by requesting the
forest department to handover the forest area involved in the project. The
appellant, in its rejoinder filed before this Court states:
PART G
52
“…It is admitted that the PRR does indeed pass through
the forest land in Jarakabande Kavalu forest area. It is
also pertinent to point out here that the Appellant has also
taken necessary steps to ensure that land measuring 25
acres have also been provided as alternate land for the
afforestation plan due to the forests to be cleared in the
Jarakabande Kavalu forest area as shown in pg. 238 of IA.
No. 53243. The contradictions mentioned in the EIA
report have subsequently stood corrected and clarified
before the EAC and the SEIAA.”
(Emphasis supplied)
In addition to the admission by the appellant of the contradictions in the EIA
report, it sought to substitute the requisite forest clearance with an agreement
with the forest department to provide an alternative site for afforestation. This is
not sustainable in law. Compliance with the 2006 Notification and other statutory
enactments envisaged in the EIA process cannot be reduced to an ad-hoc
mechanism where the project proponent seeks to remedy its abject failure to
disclose material information and seek the requisites clearances at a belated
stage.
61. The Karnataka SEIAA, in its affidavit before the NGT sought to contend
that the EC was granted subject to the appellant obtaining the required forest
clearance. It was stated:
“Forest Area
(b) Environmental Clearance has been provided by SEIAA is
for the present alignment of the road as submitted to SEIAA
and any change in the scope of the project requires fresh
appraisal. In this regard, it may be noted that details of the
forest land involved are covered in the Environment Impact
Assessment Report. The proponent has decided to provide
25 acres of land available with them to the Forest
Department.
PART G
53
It may also be noted that as per law, clearances from other
statutory authorities is not mandatory for consideration of the
application for Environment Clearance (hereafter, also
referred to as “EC”) as it is prior Environmental clearance.
Nonetheless, specific conditions have been imposed in the
EC that such permission shall be obtained by the project
proponent.
…
It is also important to note that the EC is subject to
compliance with the conditions requiring obtaining of required
clearances from the competent authority in accordance with
the applicable law such as prior clearances relating to forests
and lakes. Any non-compliance will be construed as a
violation of the EC conditions and will be dealt with in
accordance with law.”
In the view of the Karnataka SEIAA, there was no deficiency in the grant of the
EC so long as specific conditions were imposed on the project proponent to seek
the requisite clearance.
62. Prior to the notification, prior clearance from regulatory bodies or
authorities was not required. The MoEF-CC, by a notification dated 31 March
2011, prescribed the procedure to be followed for projects which involve forest
land in the grant of an EC. The relevant portion reads:
“…In this regard, reference is also invited to para 8(v) of the
EIA notification, 2006 which reads as follows:
“Clearances from other regulatory bodies or authorities shall
not be required prior to receipt of applications or prior
environmental clearance of projects or activities, or screening,
or scoping, or appraisal, or decision by the regulatory
authority concerned, unless any of these is sequentially
dependent on such clearance either due to a requirement of
law, or for necessary technical reasons.
…
However, in view of the complexity of the issues involved, the
matter has been considered further in the Ministry and in
suppression of the earlier instructions, it has now been
PART G
54
decided to adopt the following procedure for consideration of
such projects.
…
I. (B) Projects for which TORs have already been
prescribed by the proposal for environmental clearance
is yet to be submitted:
In case of the proposals, which involve forestland, in part or it
full, and for which TORs have already been prescribed, the
project proponents are advised to ensure that the requisite
stage-I forestry clearance has been granted and its copy is
submitted along with their application/proposal for
environmental clearance. Alternatively, the proponent should
delete from their land requirement, the forest land involved in
the project and the proposal so amended without any forest
land may be submitted for appraisal by the EAC.
In case of projects where forest diversion (Stage I clearance)
has been approved for part of the total forest land involved in
the project, the proposal will be considered only for the land
for which forest diversion has been approved and the non
forest land, if any…”
63. The MoEF-CC stipulated that where ToRs have been issued and the EIA
report for the grant of EC is yet to be submitted, project proponents must ensure
that the requisite forest clearance has been granted. A copy of the grant should
be submitted along with their application for the grant of EC. Alternatively, the
project proponent may delete from the proposed project any forest land that may
be affected by the project. The MoEF-CC clarified that where forest clearance
has been obtained for only a part of the total forest land involved in the project,
the proposal will be considered only to the extent of the land for which forest
diversion has been approved.
64. By two subsequent notifications dated 9 September 2011 and 18 May
2012, the procedure concerning the grant of EC for projects involving forest land
stood amended in the following terms:
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55
“…
(ii) At the stage of consideration of proposals for EC in
respect of projects involving forestland, the project proponent
would inform the respective EACs about the status of their
application for forestry clearance along with necessary
supporting documents from the concerned Forest Authorities.
It will clearly be informed to the EAC whether the application
is at the State level or at the Central level. The EAC will take
cognizance of the involvement of forestland and its status in
terms of forestry clearance and make their recommendations
on the project on its merits. After the EAC has recommended
the project for environmental clearance, it would be
processed on file for obtaining decision of the Competent
Authority for grant of environmental clearance. In the cases
where the Competent Authority has approved the grant of
environmental clearance, the proponent will be informed of
the same and a time limit of 12 months, which may be
extended in exceptional circumstances to 18 months, a
decision on which will be taken by the Competent Authority,
will be given to the proponent to submit the requisite stage-I
forestry clearance. The formal environmental clearance
will be issued only after the stage-I forestry clearance
has been submitted by the proponent.
(iii) In the eventuality that the stage-I forestry clearance is not
submitted by the project proponent within the prescribed time
limit mentioned at para (ii) above, as and when the stage-I
forestry clearance is submitted thereafter, such projects
would be referred to EAC for having a relook on the
proposal on case by case basis depending on the
environmental merits of the project and the site. In such a
situation the EAC may either reiterate its earlier
recommendations or decide on the need for its reappraisal,
as the case may be. In the eventuality, a reappraisal is asked
for, the Committee will simultaneously decide on the
requirement of documents / information for reappraisal as
also the need for a fresh public hearing.”
(Emphasis supplied)
65. Project proponents are duty bound to disclose the existence of forest land
and inform the SEAC of the status of their application for forest clearance at the
time of submitting the EIA report for the grant of the EC. Where the competent
authority has granted the EC for a project, the project proponent is then duty
bound to obtain and submit to the competent authority the requisite stage I forest
PART G
56
clearance for the proposed project within 12 months or 18 months, as the case
may be. Where the project proponent fails to submit the requisite forest clearance
within the prescribed time, the EAC or the SEAC are authorised to reexamine the
project and decide whether there is a need for the reappraisal of the project. The
process envisaged for the disclosure of the forest clearance procedure as well as
the submission of the grant of forest clearance sub-serves the purpose of
ensuring timely and adequate protection of forest land. Where the EAC or the
SEAC is of the opinion that additional documents are required upon the failure of
the project proponent to submit the requisite forest clearance within the
prescribed time, it may direct that a fresh public hearing be conducted.
66. The appellant attempted to remedy its contradictory stand on the forest
land proposed to be diverted and its failure to obtain the requisite forest
clearance by submitting to the SEAC an undertaking to ensure afforestation in an
alternate plot of land owned by it in collaboration with the forest department. Such
a procedure is neither envisaged under the 2006 Notification nor is in compliance
with the notifications issued by the MoEF-CC from time to time. Similarly, the
SEAC was under an obligation to ensure that the project proponent had complied
with the stipulated procedure for the grant of forest clearance. Instead, the SEAC
proceeded on the clarification issued by the appellant in contravention of the OMs
dated 31 March 2011, 9 September 2011 and 18 May 2012. Despite the
numerous deficiencies that were noted in the minutes of the SEAC meeting, it
proceeded to recommend to the SEIAA the grant of EC for the PRR project. The
decision of the SEAC to recommend to the SEIAA the grant of the EC, despite
PART G
57
the contradictory stand of the appellant as well as its failure to furnish adequate
reasons as to why it was exempt from seeking forest clearance, suffers from a
non-application of mind.
G.3 Trees
67. In the written submissions filed before this Court, it was contended by the
respondents that there was a material concealment by the project proponent of
the number of trees proposed to be felled for the PRR project. While the
appellant stated that only 200 – 500 trees were required to be felled, the number
was in fact as high as 16,000 trees. The appellant, as project proponent, stated in
the 2014 EIA report:
“Around 519 plants are felled for the project; the minimum of
three times the number of felled plant will be replanted in the
nearby areas”
The Deputy Conservator of Forests, BDA, in a reply dated 24 April 2009 to a right
to information query stated:
“With respect to the information sought under the Right to
Information Act, 2005, the number of trees that will be cut for
the formation of the Peripheral Ring Road – Part I have been
provided below:
Sl.
No.
Information sought
for
Information provided
Here is the
information sought
regarding cutting of
trees for the
formation of the
Peripheral Ring
Road Part - I
The below mentioned trees
belong to the Horticulture &
Forest Department will be cut
for the formation of the
peripheral ring road Part – I
1. Coconut trees: 3837
2. Mango trees: 3142
3. Guava trees: 1361
4. Sapota trees: 0818
PART G
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5. Arecanut trees: 0287
6. Jamun trees: 0084
7. Jackfruit trees: 0059
8. Tamarind trees: 0040
9. Teak trees: 0201
10. Silver oak trees: 0028
11. Neem trees: 0028
12. Eucalyptus trees:
7000
Total 16,785
68. The Deputy Conservator of Forests revealed that around 16,785 trees
were proposed to be cut for the purpose of executing the PRR project. The abject
failure of the project proponent in disclosing the number of trees required to be
felled is also evident from the rejoinder filed by appellant before this Court. It was
submitted:
“13. In reply to Para No. 6: As had been stated earlier, the
clarifications regarding cutting of trees and the corrections
have been made subsequently and additionally a further 25
acres of land has been provided for the purpose of
afforestation in an alternate piece of land. The same has
been shown in pg. 184 of I.A. No. 53243/2019.”
The EIA report prevaricated by recording that the area required for the proposed
PRR project has only a few trees. Though the development of infrastructure may
necessitate the felling of trees, the process stipulated under the 2006 Notification
must be transparent, candid and robust. Hiding significant components of the
environment from scrutiny cannot be an acceptable method of securing project
approvals. There was a serious lacuna in regard to disclosures and appraisal on
this aspect of the controversy.
PART G
59
G.4 Pipelines
69. The EIA process was challenged on the ground that by virtue of a
notification dated 12 June 1999, the Central Government acquired certain lands
for laying a petroleum pipeline between Mangalore and Bangalore. Petronet MHB
Ltd., by its letters dated 7 November 2005 and 21 November 2007 sought to
inform the appellant of the potential crossover of the PRR project over the
pipelines. The same was reiterated in its meeting with the appellant dated 4
February 2008. Petronet MHB Ltd. was of the opinion that as the pipelines
contain hazardous material which is highly inflammable, care should be taken to
either relocate parts of the project or ensure that adequate safeguards were put
in place.
70. The respondents have placed on record the minutes of the meeting dated
2 February 2008 between the appellant authority and the representatives of M/S.
Petronet MHB Limited. It was noted that the proposed PRR project crosses the
PETRONET pipeline at three locations – PRR CH 7600, PRR CH 29100 to
29500 and CH 31100 to 31800 and PRR CH 39500. It was agreed that a joint-
inspection would take place for one crossing, while for the other two crossings it
was agreed that the PRR project would be raised for clearance height. It was
stated:
“The MD, M/S. Petronet MHB Limited agreed that the PRR
may be taken over at higher level with a clearance of
minimum 5.20 m from the ground level and the crossing shall
be preferably at right angles. He also insisted that no
supports shall be constructed within their Right of user (ROU)
of 18.00.”
PART H
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In this view of the matter, the appellant sought to take adequate precautions to
ensure that the proposed PRR project did not cross a pipeline and where it did, it
was at a sufficient height without the use of support pillars. The respondent
contended that that the appellant was constrained to revert to the proposed
alignment prior to the meeting by virtue of various orders passed by the High
Court of Karnataka. This shall be dealt with in the directions which this Court
seeks to issue.
H Appraisal by the SEAC
71. In addition to the finding that the SEAC erred in recommending to the
SEIAA the grant of EC on the basis of an expired ToR and primary data, there is
another aspect of the matter that warrants the attention of this Court. The SEAC,
in its 121st meeting between 11 – 18 November 2014 proceeded to recommend
to the SEIAA the grant of EC for the PRR project. Appraisal by the SEAC is
structured and defined by the 2006 Notification. At this stage, the SEAC is
required to conduct “a detailed scrutiny” of the application and other documents
including the EIA report submitted by the applicant for the grant of an EC. Upon
the completion of the appraisal process, the SEAC makes “categorical
recommendations” to the SEIAA either for: (i) the grant of a prior EC on stipulated
terms and conditions; or (ii) the rejection of the application. Significantly, the
recommendations made by the SEAC for the grant of EC, are normally accepted
by the SEIAA and must be based on “reasons”. At its 121st meeting, the SEAC
recorded the following reasons for its recommendations:
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“PP and environmental consultant were present in the
meeting.
PP stated that the project was conceived and the consultant
was engaged in 2003 prior to 2006 EIA Notification. Now
JICA is insisting for EC.
PP have submitted the compliance for the above queries
raised by the committee vide their letter dated 12.11.2014.
After due deliberations the committee decided to recommend
the proposal to SEIAA for consideration to issue EC.
PP has submitted an undertaking on the day of the meeting
on the following points:
1. To provide pedestrian crossings in the utility crossings
facility taking all the precautions.
2. Adequate CD works
3. To maintain Raja Kalave
4. To take up afforestation work separately
5. Major crossings of NH/SH/MDR/VR
6. Accessibility to proposed road from all villages without
charging toll.
Action to be taken: Secretary, SEAC to submit the proposal to
SEIAA accordingly.”
72. The reasons furnished by the SEAC must be assessed with reference to
the norm that it is required to submit reasons for its recommendation. The
analysis by the SEAC is, to say the least, both perfunctory and fails to disclose
the reasons upon which it recommended to the SEIAA the grant of EC for the
PRR project. The SEAC proceeds merely on the reply furnished by the appellant
to the queries raised by the SEAC at its 115th meeting dated 11-12 August,
2014. In this view, the procedure followed by the SEAC suffers from a non-
application of mind.
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73. The SEAC is under an obligation to record the specific reasons upon which
it recommends the grant of an EC. The requirement that the SEAC must record
reasons, besides being mandatory under the 2006 Notification, is of significance
for two reasons: (i) The SEAC makes a recommendation to the SEIAA in terms of
the 2006 Notification. The regulatory authority has to consider the
recommendation and convey its decision to the project proponent. The regulatory
authority, as para 8(ii) of the 2006 Notification provides 18
, shall normally accept
the recommendations of the EAC. Thus, the role of the SEAC in the grant of the
EC for a proposed project is crucial; and (ii) The grant of an EC is subject to an
appeal before the NGT under Section 16 of the NGT Act 2010. The reasons
furnished by the SEAC constitute the link upon which the SEIAA either grants or
rejects the EC. The reasons form the material which will be considered by the
NGT when it considers a challenge to the grant of an EC.
74. In Shreeranganathan K P v Union of India 19
, the grant of an EC to the
KGS Aranmula International Airport Project was challenged. The NGT found fault
with the process leading upto the grant of the EC since sector specific issues had
not been dealt with. The NGT extensively reviewed the information submitted
with regard to the construction of the airport and held thus:
“182. … a duty is cast upon the EAC or SEAC as the case
may be to apply the cardinal principle of Sustainable
Development and Principle of Precaution while screening,
scoping, and appraisal of the projects or activities. While so, it
is evident in the instant case that the EAC has miserably
failed in the performance of its duty not only as mandated by
the EIA Notification, 2006, but has also disappointed the legal
18
“(ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned…” 19
2014 ALL (I) NGT Reporter (1) (SZ) 1
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expectations from the same. For a huge project as the one in
the instant case, the consideration for approval has been
done in such a cursory and arbitrary manner without
taking note of the implication and importance of
environmental issues. …Thus, the EAC has not
conducted itself as mandated by the EIA Notification,
2006 since it has not made proper appraisal by
considering the available materials and objections in
order to make proper evaluation of the project before
making a recommendation for grant of EC.”
The Court held that the EAC had not conducted a proper appraisal given its
failure to consider the available material and objections before it. The EAC had
thus failed to conduct a proper evaluation of the project prior to forwarding to the
regulatory authority its recommendation.
75. In Lafarge Umiam Mining Private Limited v Union of India, 20
an
application was made under the 1994 notification for the grant of an EC to a
proposed limestone mining project at Nongtrai Village, East Khasi Hills District,
Meghalaya. A three judge Bench of this Court rejected the challenge and upheld
the grant of the EC to the proposed project. Chief Justice S H Kapadia noted that
the doctrine of proportionality must be applied to matters concerning the
environment as part of judicial review. The principles of judicial review in
environmental matters have been enunciated thus:
“In the circumstances, barring exceptions, decisions relating
to utilisation of natural resources have to be tested on the
anvil of the well-recognised principles of judicial review. Have
all the relevant factors been taken into account? Have any
extraneous factors influenced the decision? Is the decision
strictly in accordance with the legislative policy underlying the
law (if any) that governs the field? Is the decision consistent
with the principles of sustainable development in the sense
that has the decision-maker taken into account the said
20
(2011) 7 SCC 338
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principle and, on the basis of relevant considerations, arrived
at a balanced decision? Thus, the Court should review the
decision-making process to ensure that the decision of MoEF
is fair and fully informed, based on the correct principles, and
free from any bias or restraint.”
76. The SEAC, as an expert body, must speak in the manner of an expert. Its
remit is to apply itself to every relevant aspect of the project bearing upon the
environment and scrutinise the document submitted to it. The SEAC is duty
bound to analyse the EIA report. Apart from its failure to repudiate a process
conducted beyond the prescribed time period stipulated by the MoEF-CC, the
SEAC failed to apply its mind to the abject failure of the appellant in conducting
the EIA process leading upto the submission of the EIA report for the grant of EC.
The SEAC is not required to accept either the EIA report or any clarification sent
to it by the project proponent. In the absence of cogent reasons by the SEAC for
the recommendation of the grant of EC, the process by its very nature, together
with the outcome, stands vitiated.
I Courts and the environment
77. Courts today are faced with increasing environmental litigation. A
development project that was conceptualized as early as in the year 2005 has
surfaced before this Court over 15 years later. The period that has led up to the
present litigation has involved a myriad of decisions and processes, each
contributing to the delay of a project that was outlined to sub-serve a salient
development policy of de-congesting the city. Where project proponents and
institutions envisaged under the 2006 Notification abdicate their duty, it is not only
the environment that suffers a serious set-back, but also the development of the
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nation. In the eventual analysis, compliance with the deliberative and streamlined
process envisaged for the protection of the environment ensures a symbiotic
relationship between the development of the nation and the protection of the
environment.
78. The adversarial system is, by its nature, rights based. In the quest for
justice, it is not uncommon to postulate a winning side and a losing side. In
matters of the environment and development however, there is no trade-off
between the two. The protection of the environment is an inherent component of
development and growth. Professor Charles E Corker of the University of
Washington School of Law said in a speech titled “Litigating the Environment –
are we overdoing it?” 21
:
“My answer is yes. We are overdoing our litigation of the
environment. I do not mean that there are necessarily too
many lawsuits being filed on environmental issues, and that
we should somehow cut back – I would not know how, in any
case – the number of those suits by ten percent, twenty
percent, or fifty percent. I do mean that a disproportionately
large share of attention, effort and environmental concern is
being focused on lawsuits. Lawsuits cannot accomplish, by
themselves, solutions to the most pressing of our
environmental problems. As a result, we are in some danger
of leaving the most pressing environmental problems
unsolved – or even made worse – because the commotion of
litigation has persuaded us that something has been
accomplished.”
Professor Corker draws attention to the idea that the environmental protection
goes beyond lawsuits. Where the state and statutory bodies fail in their duty to
comply with the regulatory framework for the protection of the environment, the
21
Speech to the Thirteenth Annual Meeting of the Interstate Conference on Water Problems, Portland, Oregon delivered on 29 October, 1970.
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courts, acting on actions brought by public spirited individuals are called to
invalidate such actions. Equally important however, is to be cautious that
environmental litigation alone is not the panacea in the quest to ensure
sustainable development.
79. The protection of the environment is premised not only on the active role of
courts, but also on robust institutional frameworks within which every stakeholder
complies with its duty to ensure sustainable development. A framework of
environmental governance committed to the rule of law requires a regime which
has effective, accountable and transparent institutions. Equally important is
responsive, inclusive, participatory and representative decision making.
Environmental governance is founded on the rule of law and emerges from the
values of our Constitution. Where the health of the environment is key to
preserving the right to life as a constitutionally recognized value under Article 21
of the Constitution, proper structures for environmental decision making find
expression in the guarantee against arbitrary action and the affirmative duty of
fair treatment under Article 14 of the Constitution. Sustainable development is
premised not merely on the redressal of the failure of democratic institutions in
the protection of the environment, but ensuring that such failures do not take
place.
80. In the present case, as our analysis has indicated, there has been a failure
of due process commencing from issuance of the ToR and leading to the grant of
the EC for the PRR project. The appellant, as project proponent sought to rely on
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an expired ToR and proceeded to prepare the final EIA report on the basis of
outdated primary data. At the same time, the process leading to the grant of the
EC was replete with contradictions on the existence of forest land to be diverted
for the project as well as the number of trees required to be felled.
81. The SEAC, as an expert body abdicated its role and function by relying
solely on the responses submitted to it by the appellant and failing to comply with
its obligations under the OMs issued by the MoEF-CC from time to time. In failing
to provide adequate reasons for its recommendation to the SEIAA for the grant of
an EC, it failed in its fundamental duty of ensuring both the application of mind to
the materials presented to it as well as the furnishing of reasons which it is
mandated to do under the 2006 Notification.
82. In this view of the matter, neither the process of decision making nor the
decision itself can pass legal muster. Equally, this Court must bear in mind the
need to balance the development of infrastructure and the environment. We are
of the view that while the need for a road project is factored into the decision-
making calculus, equal emphasis should be placed on the prevailing state of the
environment. The appeal which was filed before the NGT in 2015, was finally
disposed of at a belated stage only in 2019.
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J Directions
83. Bearing in mind the need to bring about a requisite balance, we propose to
issue the following directions under Article 142 of the Constitution:
(i) The appellant is directed to conduct a fresh rapid EIA for the proposed
PRR project;
(ii) The appellant shall, for the purpose of conducting the rapid EIA, hire a
sector-specific accredited EIA consultant;
(iii) The appellant shall have due regard to the various deficiencies noted in
the present judgment as well as ensure that additional precautions are
taken to account for the prevailing state of the environment;
(iv) The appellant shall ensure that the requisite clearances under various
enactments have been obtained and submitted to the SEAC prior to the
consideration by it of the information submitted by the appellant in
accordance with the OMs issued by the MoEF-CC from time to time;
(v) The SEAC shall thereafter assess the rapid EIA report and other
information submitted to it by the appellant in accordance with the role
assigned to it under the 2006 Notification. If it is of the opinion that the
appellant has complied with the 2006 Notification as well as the
directions issued by this Court, only then shall it recommend to the
SEIAA the grant of EC for the proposed project. The SEAC and the
SEIAA would lay down appropriate conditions concerning air, water,
noise, land, biological and socioeconomic environment and other
conditions it deems fit; and
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(vi) The appellant shall consult the requisite authority to ensure that no
potential damage is caused by the project to the petroleum pipelines
over which the proposed road may be constructed.
84. In moulding the above directions, this Court has factored into its decision-
making calculus the fact that the appeal from the judgment of the NGT was filed
by the project proponent and no appeal was filed by the respondents. The order
of the NGT directing the appellant to conduct a rapid EIA is upheld, though for the
reasons which we have indicated above. We clarify that no other Court or
Tribunal shall entertain any challenge to the ultimate decision of the SEAC or the
SEIAA. Liberty is granted to the parties to approach this Court upon any
grievance from the decision of the SEAC or the SEIAA pursuant to the order of
this Court.
85. The appeal is disposed of in the above terms. There shall be no order as
to costs.
Pending application(s), if any, shall stand disposed of.
……………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]
..…..…..…....…........……………….…........J. [Hemant Gupta]
New Delhi; March 17, 2020.