17 March 2020
Supreme Court
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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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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

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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

 

 

 

 

 

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PART A  

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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

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PART A  

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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

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PART A  

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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:

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PART B  

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“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.

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PART B  

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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

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PART B  

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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

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PART B  

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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.   

 

 

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PART C  

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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.  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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PART D  

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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)  

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PART D  

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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.   

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PART D  

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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

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PART D  

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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

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PART D  

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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

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PART D  

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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.”  

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PART D  

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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

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PART D  

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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.   

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PART D  

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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).  

 

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PART E  

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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;  

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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.”

22

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.  

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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

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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

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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.  

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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

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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

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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

29

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.”

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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)  

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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.   

 

 

 

32

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

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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

34

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

35

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

36

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

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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.  

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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

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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:  

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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

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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:

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“  

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.”  

    

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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.   

 

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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

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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

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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

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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

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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  

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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.

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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

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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:

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“…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.  

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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

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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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“…  

(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

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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

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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

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58    

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.  

 

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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.”  

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60    

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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61    

“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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62    

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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63    

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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64    

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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PART I  

65    

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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66    

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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67    

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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68    

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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69    

(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.