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TMI Blog2020 (3) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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. In moulding the above directions, this Court has factored into its decision-making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. 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 BDA ACT , to 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 WP No. 4550/2008 on the ground that the Appellant had no authority to issue the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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: 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, consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trees and the protection of the reservoir were adequately 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 substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isted 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; (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Or All National Highways, Express way expansion projects = 30 km length and additional right of way of more than 20m - All State Highway projects = 30 km length Or All State Highway expansion projects = 30 km length and additional rights of way of more than 20 m GC-1 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 canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pansion of the scope of the notification by including expressways, bypasses, Major district roads, tunneling 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, tunneling for roads within city limits and peripheral roads around municipal corporation limits. Significantly, the Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and recommended 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, 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 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 3rd 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 late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 prerequisites 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 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 accr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Ramky lacked accreditation to serve as an EIA consultant for highway projects. This aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory 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. Area proposed to be afforested - 4.5 Ha (three times the affected area) Afforestation Program will be implemented through the Forest Department, BDA and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Jarakabande 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: ...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 ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific 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 decided to adopt the following procedure for consideration of such projects. ... I. (B) Projects for which TORs have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nmental 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 eventual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the EC, despite 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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. In this view of the matter, the Appellant sought to take adequate precautions to ensure that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. 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 (ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasi 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 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 bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 OM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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