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TMI Blog2019 (3) TMI 2072X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions for the grant of an EC. While doing so, it would be open to the EAC to have due regard to the conditions which were incorporated in the order of the NGT and to suitably modulate those conditions in pursuance of the liberty which we have preserved to it. To facilitate an expeditious decision, the EAC is directed to carry out this exercise in a prescribed time schedule during which period, the EC shall remain suspended. The EAC shall revisit the recommendations made by it for the grant of an EC, including the conditions which it has formulated, having regard to the specific concerns which have been highlighted in this judgment - Until the EAC carries out the fresh exercise, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended - appeal allowed. - Dr. Dhananjaya Y. Chandrachud And Hemant Gupta, JJ. For the Appellant : Ms. K. V. Bharathi Upadhyaya, AOR, Ms. Anitha Shenoy, Adv., Ms. Rashmi Nandakumar, AOR, Mr. Bharathi Upadhyaya, Adv., Mr. Ritwick Dutta, Adv., Ms. Srishti Agnihotri, Adv., Ms. Kanika Sood, Adv., Ms. Sani Antony, Adv. For the Respondent : Mr. Annam D. N. Rao, AOR, Mr. Atmaram N.S. Nadkarni, ASG, Mr. Dattaprasad Lawande, A.G., Mr. Jai Dehadr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared by Engineers and Management Associates, Spain in 1997; (ii) A preliminary technical feasibility study prepared by the Airports Authority of India in May 1998; (iii) A final feasibility report for the proposed airport at Goa prepared by the International Civil Aviation Organisation, Montreal, Canada in August 2005; (iv) A Goa dual airport study prepared by the International Civil Aviation Organisation in August 2007; (v) A report of a Six Member Committee chaired by the Chief Minister of Goa in 2008 to look into all aspects relating to construction of an international airport at Mopa, Goa ; and (vi) A document styled as the Airport Master Plan dated 10 February 2012, submitted to the Public Private Partnership [PPP] cell of the Government of Goa by Ammann Whitney, USA envisaging: consultancy services for preparation of master plan, preliminary project report, tender document and project management services for the proposed greenfield airport and commercial/industrial and allied development near Mopa in the State of Goa . 4 On 1 May 2000, the Government of India communicated its approval for the setting up of an airport at Mopa and for the closure of the existing airport for ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectorate of Civil Aviation, Government of Goa submitted a draft EIA report to the Goa State Pollution Control Board, requesting it to initiate steps to conduct a public hearing. A public hearing was conducted at the project site on 1 February 2015. The EAC, at its meetings held on 9-11 March 2015, recommended an extension of the validity of the ToR for another year ending on 31 May 2015. 8 On 20 May 2015, the State of Goa submitted a final EIA report to the MoEFCC, seeking the grant of an EC for the project. On 29 May 2015, the MoEFCC communicated its approval for extending the validity of the ToR until 31 May 2015. Between 24 and 26 June 2015, the EAC, at its 149th meeting, deliberated on the EIA report and sought additional information from the project proponent, inter alia, on: 10 years data regarding rainfall in the area; Drawing of traffic circulation plan for smooth circulation of Traffic in the area; Minimum 20% energy conservation measures should be adopted in incorporating provisions for use of LED, star rated AC s, and a revised energy conservation plan to be submitted; Measures taken to comply with the CPCB guidelines formulated for noise pollution control in Airport a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the lawful authority for a fortnight thereafter in order to enable the appellants to pursue their remedies. On 6 February 2018, the Deputy Conservator of Forests granted permission for felling 21,703 trees at the airport site. The appellate authority under the Goa, Daman and Diu Preservation of Trees Act 1984 [Act 6 of 1984] dismissed the appeal on 7 March 2018. 11 On 8 March 2018, the High Court of Judicature at Bombay at its seat at Goa set aside the order of the Deputy Conservator of Forests and remanded the matter to be heard by the Principal Chief Conservator of Forests. On 2 April 2018, the Principal Chief Conservator of Forests stipulated several conditions for the cutting and the felling of trees at the site of the airport including: (i) enumeration of trees; and (ii) the plantation of ten times the number of trees felled. Upon being moved in a Public Interest Litigation [PIL] , the High Court by its order dated 25 April 2018 allowed the exercise of enumeration to be carried out. As a result, 54,676 trees were enumerated, including the 1,548 trees which had been felled earlier in terms of the order dated 6 February 2018 of the Deputy Conservator of Forests. On 13 Januar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disclosures which are made by the project proponent. In this backdrop, the principal submissions urged by the appellants before the Court are as follows: (i) There were material concealments by the project proponent in failing to disclose that as many as 54,676 trees were required to be felled. Form 1, which was submitted by the project proponent, was silent in regard to the number of trees required to be felled. The final EIA report, while dealing with the biological environment in clause 2.1.5 contains the following statement: 2.1.5 Biological environment Construction phase Impacts (Significance-Medium) The area acquired for proposed airport has only few trees, mainly bushes. These will be cleared during site preparation. Contrary to the above assertion is the statement contained in the counter affidavit filed by the State of Goa: ..I say that the permissions which have been obtained for cutting of 54,676 trees have been granted by the concerned authorities in terms of the relevant statutory provisions and after laying down various conditions. I say that the context in which it was mentioned as sparse trees has to be seen from the huge area of the land. The land being 2133 acr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Act 1927 in the Sawantwadi Forest Division, within a radius of 15 kilometres from the ARP. On this aspect, it was urged on behalf of the appellants that restrictions come into force as soon as a notification under Section 4 of the Indian Forest Act 1927 is issued. Under the Forest Conservation Act 1980, any use of forest land for non-forest purposes requires prior permission of the Union Government, as elaborated in the judgment of this Court in TN Godavarman Thirumalpad v Union of India [(1997) 2 SCC 267] ( Godavarman ). The purpose of elucidating forest areas which fall within an aerial distance of 15 kilometres from the project site is to enable an assessment to be made of the impact of the project on forested areas. Failure to mention forests in the State of Maharashtra was a significant omission in the EIA report; (iii) Form 1 requires a disclosure of the details of ESZs within an aerial distance of 15 kilometres of the project boundary. The EIA report rests content in stating that Pernem taluka is not included in an ESZ by the High Level Working Group [HLWG] constituted under the Chairmanship of Dr K Kasturirangan, Member (Science), Planning Commission [Kasturirangan repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised and the response of the project proponent, before submitting required documents to the EAC. Before the EAC, the project proponent in its presentation, indicated that the objections were only about employment opportunities. The project proponent clearly failed in its duty to appraise the EAC about serious environmental concerns which were raised during the course of the public consultation. 17 On the aspect of appraisal, it has been urged that the minutes of the EAC meeting recommending the grant of an EC contain, as learned counsel for the appellants submitted, not a line on the EIA report . The EAC was required to state its reasons for recommending the grant of an EC in terms of the 2006 notification. The reasons must indicate that there was an appraisal by the EAC. In the present case, the recommendations of the EAC are based on vague considerations such as: (i) larger public interest; (ii) non-concealment of the facts by the project proponent; and (iii) the delay which had occurred in the process. The submission urged is that the EAC, as an expert body, has failed to furnish reasons; acted on the basis of considerations which are not germane to the exercise of its functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that there is no reserved forest in the State of Maharashtra while delineating ESZs within 15 kilometres from the project boundary. The report proceeded on the plain meaning of the Indian Forest Act 1927 according to which it is only upon the issuance of a notification under Section 20 that a reserved forest is declared; (iii) As a matter of fact, within the area of 15 kilometres from the project boundary in the State of Maharashtra, no reserved forest stands declared under Section 20(2) of the Indian Forest Act 1927; (iv) The decision in Godavarman (supra) which adopts the ordinary meaning of the expression forest is site specific: the MoEFCC follows it scrupulously even if there is a notification under Section 4 while considering the diversion of forest land for non-forest uses. The decision in Godavarman (supra) has also been explained in the decision of this Court in Construction of Park at Noida near Okhla Bird Sanctuary Anand Arya v Union of India [2011 (1) SCC 744] ( Okhla Bird Sanctuary ); (v) The Guidance manual notices that environmental facets which have to be considered in relation to airport development are categorized into seven groups: (a) land use; (b) water qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kilometres from the ARP which also included the State of Maharashtra. 22 Dealing with the submission that no avi-faunal study was carried out, it was urged that the EIA report specifically deals with this aspect in paragraph 4.6 of Chapter II which elucidates that 385 species of plants belonging to 88 plant families were documented and identified in the 10 kilometres radial distance of the proposed project site. The study similarly dealt with faunal diversity. As many as 86 species of birds were observed in the course of the avi-faunal study, which has been elucidated in table 4.17 of the EIA report. 23 On the issue of ESZs, the learned ASG urged that there is a specific reference to the Kasturirangan report, under the heading of Environmentally Sensitive Zones in Chapter IV of the EIA report. The EIA report notices that the proposed airport site falls in Pernem taluka of North Goa which has not been included in the ESZs mapped by the HLWG. Annexure XVI of the EIA report is a notification dated 13 November 2013 [2013 notification] of the MoEF, which contains a list of villages (state, district and taluk-wise) identified by the HLWG. Paragraph 9 of the 2013 notification which has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 28 October 2015, the EC was granted by the Union Government. On the basis of the procedure which was followed by the EAC, the following submissions have been urged: (i) The application of mind by the EAC can be inferred and seen from the record; (ii) Where considered necessary, the EAC sought information outside the EIA report; (iii) Having appraised the EIA report, the EAC imposed site specific conditions; and (iv) The EAC consists of experts in the field and once it has been shown that all relevant considerations were borne in mind, this Court must give due deference to their view. 26 Mr K K Venugopal, learned Attorney General, appearing on behalf of the State of Goa, urged the following submissions: (i) The proposed project for setting up an international airport at Mopa has been on the drawing board for nearly two decades. Successive studies were commissioned to assess the feasibility of the project from diverse sources, both within and outside government. This includes studies by private organisations as well as reports by the Airports Authority of India, the International Civil Aviation Organisation and the six member Committee constituted by the state government under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Goa on 8 November 2016. Possession of the project site was handed over on 4 September 2017 and work commenced on 3 March 2018. The indicative capital for Phase 1 of the development is Rs 1,900 crores while the cost of the entire project is likely to be Rs 3,000 crores. The State of Goa has incurred a total expenditure of Rs 240 crores for land acquisition, rehabilitation, road widening, consultancy and other related aspects while the concessionaire has thus far incurred an expenditure of Rs 230 crores as on 18 January 2019. 14.06 per cent of the project work has been completed and a manpower consisting of 1500 persons has been mobilized at the site together with plant and machinery. 29 The concessionaire has stated that it has tied up with a consortium of banks and the servicing of the loans is linked to project milestones. As on 18 January 2019, the major works in progress include: (i) site preparation and earth works such as excavation and filling up of runways, taxiways, aprons and parking bays; (ii) PTBfoundations and column works; and (iii) excavation of the foundations for the ATC building. The concessionaire has submitted that apart from the plantation of ten trees for eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included with it an EIA Report, an Environment Management Plan [EMP] and the details of a public hearing which had been carried out in accordance with guidelines issued by the Central Government from time to time. Limited exceptions to the public hearing process and the submission of an EIA were provided. 35 MoEF as the Impact Assessment Agency [IAA] would then evaluate the application and reports submitted. The IAA was empowered to constitute a committee of experts, if necessary, which would have a right of entry into and inspection of the site during or after the commencement of the preparations relating to the project. The IAA would prepare a set of recommendations based on the documents furnished by an applicant within 90 days from the receipt of the documents and a decision would be conveyed to the applicant within 30 days thereafter. The EC granted was valid for a period of five years and a successful applicant was required to submit half-yearly reports to the IAA. Concealing factual data or submitting false or misleading information would make the application liable for rejection and would lead to the cancellation of any EC [EC] granted on that basis. 36 The 1994 notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with granting ECs for Category B projects; (v) Under the 1994 notification, the final approval was granted by the IAA. Under the 2006 notification, though the final regulatory approval is granted by the MoEFCC or the SEIAA, as the case may be, the approval is to be based on the recommendations of the EAC functioning in the MoEFCC or the State Expert Appraisal Committees [SEAC] which are constituted for that specific purpose; (vi) Under the 2006 notification, the application can be rejected by the regulatory authority on the basis of the recommendation of the EAC or the SEAC, as the case may be, at the preliminary stage itself, prior to public consultation; and (vii) Under the 1994 notification, the public hearing process was overseen by the State Pollution Control Boards [SPCB] which would constitute a public hearing panel for the purpose. Under the 2006 notification, the public consultation process is expanded to include the receipt of written comments from concerned persons. The public hearing component was to be overseen by the SPCBs or the Union Territory Pollution Control Committee [UTPCC]. 40 The salient objective which underlies the 2006 notification is the protection, prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egory B projects. This stage entails an examination of whether the proposed project or activity requires further environmental studies for the preparation of an EIA for its appraisal prior to the grant of an EC. Those projects requiring an EIA are further categorized as Category B1 projects and remaining projects are categorized as Category B2 projects. Category B2 projects do not require an EIA. The categorization is in accordance with the guidelines issued in this regard by the MoEFCC from time to time. 45 SCOPING At this stage, the EAC or the SEAC, as the case may be, formulates detailed and comprehensive Terms of Reference which address all relevant environmental concerns for the preparation of the EIA. Amongst other things, the information furnished by the applicant in Form 1/Form 1A along with the proposed ToR by the applicant form the basis for the preparation of the ToR. The ToR must be conveyed to the applicant within 60 days of the receipt of Form 1, failing which, the ToR proposed by the applicant shall be deemed as approved. Significantly, applications for EC may be rejected by the regulatory authority at this stage itself on the recommendation of the EAC or the SEAC, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority will make available a hard copy of the Draft EIA for inspection at a notified place during office hours till the date of the public hearing. A duty is placed on the authority to forward all responses and comments received at this stage to the applicant through the quickest available means. 49 After the public consultation process, the applicant is duty bound to address all the material environmental concerns expressed during the process and make appropriate changes to the Draft EIA and EMP. The applicant shall then forward the final EIA report to the regulatory authority to initiate the next stage. Alternatively, the applicant may submit a supplementary report to the Summary EIA and EMP. 50 APPRAISAL - This stage involves detailed scrutiny by the EAC or the SEAC of all the documents submitted by the applicant for the grant of EC. The appraisal is carried out in a transparent manner in a process to which the applicant shall be invited for furnishing clarification in person or through an authorized representative. Appendix V stipulates that the following documents are also submitted to the regulatory authority: (i) Final EIA Report (ii) A copy of the video tape or CD of the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It serves as a balance between development and protection of the environment: there is no trade-off between the two. The protection of the environment is an essential facet of development. It cannot be reduced to a technical formula. The notification demonstrates an increasing awareness of the complexities of the environment and the heightened scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. In laying down a detailed procedure for the grant of an EC, the 2006 notification attempts to bridge the perceived gap between the environment and development. 55 It is for this reason that the EAC and SEAC comprise experts in the field of environmental law. The Chairperson of the EAC shall be a person who is an outstanding and experienced environmental policy expert or expert in management or public administration with wide experience in the relevant development sector . Appendix VI to the 2006 notification stipulates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Production of solid wastes during construction, operation or decommissioning; (v) Release of pollutants or any hazardous, toxic or noxious substances to air; (vi) Generation of noise and vibration, and emissions of light and heat; (vii) Risks of contamination of land or water from releases of pollutants into the ground or into sewers, surface waters, groundwater, coastal waters or the sea; (viii) Risk of accidents during construction or operation of the project, which could affect human health or the environment; and (ix) Environment sensitivity which includes, amongst other things, the furnishing of the following details: a. Areas protected under international and national legislation; b. Ecologically sensitive areas; and c. Areas used by protected, important or sensitive species of flora or fauna. 59 Under the 2006 notification, the EC process is based on the information provided by the applicant in Form 1. That the information provided in Form 1 is crucial can be borne from the following circumstances: (i) The EAC or the SEAC, as the case may be, formulates comprehensive ToRs on the basis of the information furnished in Form 1 which addresses all possible environmental concerns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 2010, the MoEF brought out its Guidance manual for airports. The need for a sector specific manual arose because the 2006 notification re-engineered the entire EC process under its earlier avatar of 1994 and new sectors were incorporated into the ambit of the EC process. The 2006 notification noted that as many as 39 developmental sectors require prior ECs. Sector specific manuals, it was hoped, would bring about standardisation in the quality of appraisal and obviate potential inconsistencies between the work performed by SEIAAs and SEACs. Chapter IV of the Guidance manual, which is titled Description of Environment , prescribes the study area for carrying out an EIA: Primary data through measurements and field surveys; and secondary data from secondary sources are to be collected in the study area within 10 km radius from Aerodrome Reference Point (ARP). Primary data should cover one season other than monsoon and secondary data is to cover one full year. The basis for selection of these criteria is that the aircraft gains a height of 1000ft in this area below which noise and air pollution are generated maximum during its take off stage. Secondary data should be collected withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delineated with respect to ARP on the site map. High rise buildings, industrial areas and zones, slaughter houses and other features of flight safety importance may also be marked on the map. Secondary data from Central Water Board GOI; State ground water department, State Irrigation Department is to be obtained. Geomorphology of the region is to be clearly delineated. Study of land use patterns, habitation, cropping pattern, and forest cover data is undertaken. Information on the location of water bodies, drainage, forests, surface travel routes with respect to the project site is obtained within the study area and plotted on a map. This map will show the natural slopes and the drainage patterns, which give a guideline while planning the drains in the airport project. The drains help in discharge of storm water from the airport to avoid flooding and water logging in the project area. The study of the water environment is necessitated for the following reasons: Ground water quality is important, as change in its chemical parameters will affect the water quality. Airport activities during construction / operation may have impact on ground water quality. Due to airport construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h this, Baseline data from field observations for various terrestrial and aquatic systems are to be generated. Comparison of the data with authentic past records to understand changes is undertaken. Environmental components like land, water, flora and fauna are characterized and, The impact of airport development on vegetation structure in and around project site is to be understood. Data on sensitive habitats, wild or endangered species in the project area also is to be collected from Zoological Survey of India (ZSI), Botanical Survey of India (BSI), Wildlife Institute of India (WII) and Ministry of Earth Sciences. Wildlife symbolizes the functioning efficiency of the entire eco system. Just as wild flora needs special treatment for preservation and growth, wild fauna as well deserves specific conservatory pursuits for posterity. As per Wildlife Act (1972), the various wild animals are enlisted in the schedules of wildlife Act based on the intensity of threat to them as rare, endangered, threatened, vulnerable etc. Primary data on survey of the wild animals and birds in the study area is collected and identified with the classification into various schedules taken from secondary d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation of the process which is initiated on the basis of the information supplied by the project proponent. Following the disclosure in Form 1, ToR are formulated, and this leads to the preparation of the EIA report. A duty is cast upon the project proponent to make a full, complete and candid disclosure of all aspects bearing upon the environment in the area of study. The project proponent cannot profess an ignorance about the environment in the study area. The project proponent is bound by the highest duty of transparency and rectitude in making the disclosures in Form 1. 68 There can be no manner of doubt that Form 1 is an important ingredient in the entire process envisaged under the 2006 notification. Hence, clause (vi) of para 8 of the 2006 notification provides that deliberate concealment or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection and lead to the cancellation of a prior EC granted on that basis. The declaration which is required of the project proponent is to a similar effect. 69 We are unable to accept the submission that the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to set up an urban park. This Court found it inconceivable that those trees would turn into a forest within a span of ten to twelve years and the land, which was for agricultural use would be converted into forest land . Hence, the decision was based on a factually distinguishable situation. The decision emphasises that in construing the term forest, courts must have due regard both to text and to context. 72 In the context of the 2006 notification and the underlying purpose of facilitating an EIA report, the expression forests must receive its ordinary and natural connotation. The effort must not be o overlook and destroy forests but to notice and protect them. 73 Having said this, we must delve into the alternate submission that the EIA report does, as a matter of fact, consider the prevalence of forested areas both in Goa and in Maharashtra within the study area. In this context, para 2 of the Executive Summary introducing the EIA report acknowledges that the surrounding land use of the airport site is predominantly forest land . In the context of land environment, the EIA report records that forest is the predominant land use in the study area . The EIA report acknowledges t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 76 The submission that the EIA report deals with the prevalence of forested areas and warrants the grant of an EC cannot be accepted for yet another reason. EACs and SEACs are conferred with the authority to reject applications for the grant of an EC at the stage of scoping itself, prior to the preparation of the ToR. The application may be rejected on the basis of the information furnished by the project proponent in Form 1. Claiming an EC as a matter of right merely because the EIA report has assessed parameters that were omitted in Form 1, bypasses the authority of the EAC and SEAC to reject an application at the preliminary stage and cannot be countenanced. The regulatory authority is required to assess the final documents submitted to it strictly with reference to the ToR and communicate to the EAC and SEAC any discrepancies between the EIA report and the ToR. A deficient ToR on the basis of the non-disclosure of material information in Form 1 impedes this process. 77 The failure on part of a project proponent to disclose material information in Form 1 as stipulated under the 2006 notification has a cascading effect on the salient objective which underlies the 2006 notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that Pernem taluka, where the project site is situated, has not been included as an ESZ. In this context, reliance is placed on a draft notification dated 3 October 2018 issued by MoEFCC under which the Union Government has proposed to notify 56,825 square metres spread across six states Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu as the Western Ghats ESZ. The preamble to the draft notification adverts to the steps taken by the Union Government between 2013 and 2016 in pursuance of the report of the HLWG. This includes draft notifications issued on 10 March 2014 and 4 September 2015. The draft notification dated 3 October 2018 emphasises the importance of the Western Ghats as a global biodiversity hot spot: WHEREAS, Western Ghats is an important geological landform on the fringe of the west coast of India and it is the origin of Godavari, Krishna, Cauvery and a number of other rivers and extends over a distance of approximately 1500 kilometres from Tapti river in the north to Kanyakumari in the south with an average elevation of more than 600 metres and traverses through six States namely, Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu; AND W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr Nadkarni s response to the above submission is that: (i) neither the Mopa plateau nor Pernem taluka constitute a part of the Western Ghats; (ii) the HLWG chaired by Dr Kasturirangan recommended a prohibition of specified activities while for other activities, the 2006 notification was required to be followed; (iii) the EIA report, while considering the project, has also adverted to the Kasturirangan report; and (iv) infrastructure projects except in the prohibited category are permissible, subject to an EIA. 82 The report of the HLWG dated 15 April 2013 recommends that there should be a complete ban on mining, quarrying and sand mining activity in the ESZ. Similarly, it recommends that no thermal power project should be allowed in ESZs and that all red category industries should be strictly banned. Building and construction projects of 20,000 square metres and above should not be allowed. However, all other infrastructure and development projects, which have been recommended, should be subject to the grant of ECs under Category A projects of the 2006 notification. 83 The Union Government issued a notification on 13 November 2013 in pursuance of Section 5 of the Environment (Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically sensitive because of the presence of flora or fauna requiring protection, that must be specifically adverted to and studied. The deficiency of the EIA report emanates from its failure to notice that the purpose of the study was not only to determine whether the project site is ecologically sensitive. Confining itself to this aspect, the EIA report failed to consider a crucial and relevant consideration. F Sampling Points 87 The submission of the appellants is that the Guidance manual requires the collection of primary data through measures and field studies in the study area within 10 kilometres radius from the ARP. Secondary data has to be collected within a 15 kilometres aerial distance for the parameters mentioned in Colum 9(III) of Form 1 of the 2006 notification. In the present case, it was urged that not a single sampling station with reference to any of the parameters is situated in Maharashtra. As a result, no sampling sites for any of the parameters fall within 40% of the study area. Consequently, no primary data collection was done despite the carrying out of two samples in 2011 and 2014 respectively. In response to this submission, it has been urged that all sampl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact study and the study area covered includes both the states. F.4 Flora and fauna 91 The EIA report indicates that the area surrounding the site for the proposed airport has dense forests [2] . These total up to nearly 6,634.19 hectares [See Para 2.3.1, Chapter II] . Ms Shenoy has urged that it is impossible that the fauna found by the project proponent through both primary sampling and secondary sources was only limited to animals such as: domestic dog, cat and cattle, common house mouse, rat and mongoose, jackal and the three striped palm squirrel. This, in her submission, is a clear indication that the EIA report is faulty and clearly incorrect. 92 While dealing with the above submissions, it is necessary to note that the Guidance manual contains a specific reference to the collection of data of sensitive habitats and wild/endangered species in the project area. The Guidance manual stipulates thus: Data on sensitive habitats, wild or endangered species in the project area also is to be collected from Zoological Survey of India (ZSI), Botanical Survey of India (BSI), Wildlife Institute of India (WII) and Ministry of Earth Sciences. Wildlife symbolizes the functioning efficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is critically endangered. The study clearly mentions that the EIA study is entire deficit as it does not accurately consider the flora and fauna of the area as well as the number of trees to be cut. 94 We find that the collection of both primary and secondary data of fauna in the EIA report was perfunctory. The primary study is not based on data collected from acknowledged sources such as the Zoological Survey of India, Wildlife Institute of India and Ministry of Earth Sciences as required under the Guidance manual. Similarly, as regard avi-faunal studies, the EIA report lists 385 plant species in table 4.15 of Chapter IV, titled Description on Environment . It also states that 86 species of birds were observed during the survey in the 10 kilometre study area from the proposed site. Column 9 (III) of Form 1 refers to areas in the following terms: areas which are used by protected, important or sensitive species of flora or fauna for breeding, foraging, nesting, resting, over wintering or migration . The above column was left blank by the project proponent in Form 1. According to the Guidance manual, secondary data has to be collected within an aerial distance of 15 kilometres for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of Trees Act 1984 filed by the Federation of Rainbow Warriors, a Writ Petition was filed before the Bombay High Court [WP No. 1 of 2018] . The High Court set aside the order of the Deputy Conservator of Forests and remanded the proceedings to the Principal Chief Conservator who passed the order which has been noted above. Following the order of the Principal Chief Conservator, 54,676 trees were enumerated. The competent authority granted permission for the felling of trees thereafter on the following dates: (i) 1,422 trees by an order dated 20 April 2018; (ii) 18,408 trees by an order dated 24 July 2018 and (iii) 33,298 trees by an order dated 1 October 2018. Following this exercise, the felling of trees was completed on 18 January 2019. The Bombay High Court having directed that the order of the Principal Chief Conservator of Forests shall be subject to the specific permission of the NGT in the pending proceedings, a Miscellaneous Application was moved before the NGT. While disposing of the main appeal, the NGT also disposed of the Miscellaneous Application and under the head of Biological Environment , the following directions have been issued: E. Biological Environment 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne whether felling all of them was necessary for the project to be implemented. 98 In the written submissions which have been filed by the State of Goa, it has been submitted that of the 54,676 tees which were felled: (i) 32,193 trees representing 59% had a girth of 30 to 50 centimeters; (ii) 19,903 trees representing 36% had a girth of 50 to 100 centimeters; and (iii) only 2,580 trees had a girth exceeding 100 centimeters. The Goa, Daman and Diu Preservation of Trees Act, 1984 defines the expression tree in Section 2(j) in the following terms: S. 2(j) - tree means any woody plant whose branches spring from and are supported upon the trunk or the body and whose trunk or body is not less than ten centimeters in diameter at a height of one meter from the ground level and includes coconut palm. This definition has been highlighted to indicate that it incorporates a stringent meaning of the expression trees . The point, however, is simple: there was a glaring omission of the factual existence of as many as 54,676 trees in the EIA report. For project proponents, the environment may not possess a human voice. But the purpose of prescribing an EIA report is precisely to undertake a baseli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and sustain their livelihoods. 101 Public consultation involves a process of confidence building by giving an important role to those who have a plausible stake. It also recognizes that apart from the knowledge which is provided by science and technology, local communities have an innate knowledge of the environment. The knowledge of local communities is transmitted by aural and visual traditions through generations. By recognizing that they are significant stakeholders, the consultation process seeks to preserve participation as an important facet of governance based on the rule of law. Participation protects the intrinsic value of inclusion. 102 The 2006 notification postulates: (i) A public hearing at or in close proximity to the project site to ascertain the views of locally affected persons ; (ii) Obtaining written responses from other concerned individuals having a plausible stake in the environmental aspects of the project or the activity; (iii) The duty of the SPCB to conduct hearings and to forward the proceedings to the regulatory authority within the stipulated time; (iv) Placing on the website of the Pollution Control Board a summary of the EIA report in the prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the discharge of water goes down to the rivers; (ii) Nearly forty springs would be affected along with flora and fauna; (iii) The public hearing had been conducted in an area where the land was barren and with no plantation; (iv) The impact on river Chapora, which is within a 10 kilometre radius from the project, has not been adequately analysed; (v) Mopa plateau has a natural mechanism for ground water recharge; (vi) Protection of the Western Ghats is necessary, particularly with the view to not disturb flora and fauna; (vii) The EIA report has not been made available to the affected areas and Gram Panchayats in the buffer zone; (viii) Local plantations would be affected; (ix) The number of trees to be felled by the project proponent has not been specified in the EIA report; (x) The Dodamarg Wildlife Sanctuary had been sanitized by the High Court; (xi) Forest clearance had not been obtained; (xii) The sacred groves of the area have not been described, including the Barazan which will be lost; (xiii) The slopes sustain cashew plantations with nearly forty lakh cashew trees resulting in an annual income of Rs Fifty crores; and (xiv) No study has been carried out in the 10 kilometre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerns raised during the public hearing is the crucial link in the appraisal by the EAC. The Minutes of the meeting indicate that there was no fair and complete disclosure of the objections which were raised during the public hearing before the EAC. There is evidently a failure in the process of applying and implementing the norms laid down in the 2006 notification in this regard. H Appraisal by the EAC 108 Appraisal by the EAC is structured and defined by the 2006 notification. The process of appraisal is defined to mean a detailed scrutiny by the EAC of the application and other documents like the EIA report and the outcome of the public consultation, including the public hearing proceedings, submitted by the applicant to the regulatory authority for the grant of an EC. The EAC is under a mandate to conduct the process of appraisal in a transparent manner . On the conclusion of these proceedings, the EAC has to make categorical recommendations to the regulatory authority either for: (i) the grant of a prior environmental clearance on stipulated terms and conditions; or (ii) the rejection of the application. The recommendations made by the EAC to the regulatory authority must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition which led to delay in preparation of the EIA report, and the larger public interest involved. Keeping in view the fact that the project proponent has not concealed facts and circumstances of the case and the project is in the public interest, the Ministry may take an appropriate view on the objection that the public hearing could not have been held, in the absence of valid TOR, though the validity has been extended twice and regularized subsequently. The Committee also noted that the public hearing was attended by about 3000 people and hence there is substantive and active public participation as required under the law for public consultation. The PP further provided their reply to the rebuttal by the said NGO on various issues. The EAC, after deliberations, recommended the project for grant of EC subject to the above and the following:- The project proponent shall ensure availability of adequate land at the junction of the Mopa Airport road and Mumbai/Goa NH 17 for traffic circulation/ management and to provide for all the traffic interchanges and proposed clover. The approach and exit roads to the airport would be approved from the NHAI and should be according to IRC n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surmise. The EAC refers to the delay in acquisition proceedings, a larger public interest and the fact that the project proponent has not concealed facts and circumstances . Each one of the reasons which has weighed with the EAC betrays a lack of comprehension of the true nature of its function under the 2006 notification. The EAC has failed to consider relevant circumstances bearing on the environmental impact of the project and has instead considered circumstances extraneous to its function. That the project proponent, according to the EAC, has not concealed facts and circumstances is not reason enough to warrant a grant of an EC. Moreover, even this hypothesis (as we have seen earlier) is incorrect. There is no analysis of the EIA report. The EAC has failed to answer to the call to its expertise. 113 Clause (vi) of para 8 of the 2006 notification stipulates thus: (vi) Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, dealt with the pointwise clarifications of the project proponent to the representation by the Federation of Rainbow Warriors. Dealing with a representation is not exhaustive of the function of the EAC. Arguably, if no representation was received, or if a representation submitted by an individual objector is found to be incorrect, that by itself is no ground to recommend an EC. 116 The EAC, as an expert body, has to scrutinize all relevant aspects of the project or activity proposed, including its impact on the environment. In taking that decision, the EIA report is an input for its analysis. The scrutiny and appraisal has to be undertaken by the EAC as an expert body and its reasons must reflect that this has been done. As the Minutes indicate, the non-application of mind by the EAC is evident with reference to the presence of 15 ESZs in the study area. The EAC notes that the project is outside the ESZ delineated by the Kasturirangan Committee. In the absence of a critical analysis, the EAC failed in discharging its duties under the 2006 notification. The recommendations of the EAC furnish a guide for the MoEFCC. Indeed, the 2006 notification stipulates that the recommendations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that different opinions have been expressed by other experts is not enough to hold that EAC did not apply its mind. The rehabilitation programme was also produced before the EAC . The next paragraph contains a brief reference to the fact that the requirement of a study over a distance of 15 kilometres is in regard to the collection of secondary data. The above paragraph, in our view, does not fulfil the requirement of a merits review by an expert adjudicatory body vested with appellate jurisdiction. 119 The NGT Act provides for the constitution of a Tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment. In order to be eligible for appointment as an expert member, a person must fulfill the following qualifications prescribed in Section 5(2): (2) A person shall not be qualified for appointment as an Expert Member, unless he, (a) has a degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or Master of Engineeri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructions of airports 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 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. 187 the Tribunal is of the considered opinion that there is no option but to scrap the impugned EC granted by the MoEF to the 3rd respondent/project proponent for setting up the Aranmula airport 121 The failure to consider materials on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2006 notification was not applicable; and (vii) the MoEF had, at multiple stages, sought clarifications from the project proponent and had undertaken requisite care and caution to protect the environment. Upholding the grant of the EC and the forest clearance, this Court held thus: 120 The word development is a relative term. One cannot assume that the tribals are not aware of principles of conservation of forest. In the present case, we are satisfied that limestone mining has been going on for centuries in the area and that it is an activity which is intertwined with the culture and the unique landholding and tenure system of Nongtrai Village. On the facts of this case, we are satisfied with the due diligence exercise undertaken by MoEF in the matter of forest diversion. Thus, our order herein is confined to the facts of this case. (Emphasis supplied) 124 The decision of this Court in Lafarge (supra), was based on the facts summarized above. Significantly, the standard of judicial review which must be applied in cases relating to the environment has been formulated by the three judge Bench in Lafarge (supra). Chief Justice S H Kapadia noted that the doctrine of proportionality m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantial question of law. In the present case, we have indicated the basis for the invocation of the jurisdiction of this Court under Section 22. There was a failure to follow binding norms under the 2006 notification. There were serious flaws in the decision-making process. Relevant material has been excluded from consideration and extraneous circumstances were borne in mind. The EAC as an expert body abdicated its obligations to make an expert determination based on reasons. The NGT as an adjudicatory body failed to exercise the jurisdiction entrusted to it under Section 16(h) read with Section 20 of the NGT Act 2010 by merely deferring to the decision to recommend and grant an EC. The parameters in regard to the existence of substantial questions of law have hence been established in the classical or conventional sense of that expression. J Environmental Rule of Law 126 Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our eco system. 127 Since the Stockholm Conference, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onmental Sustainability was the first internationally negotiated document to establish the term environmental rule of law. It declared that the violation of environmental law has the potential to undermine sustainable development and the implementation of agreed environmental goals and objectives at all levels and that the rule of law and good governance play an essential role in reducing such violations . It thus urged governments and organisations to reinforce cooperation to combat noncompliance with environmental laws towards achieving sustainable development. It also called upon the Executive Director to assist with the development and implementation of environmental rule of law with attention at all levels to mutually supporting governance features, including information disclosure, public participation, implementable and enforceable laws, and implementation and accountability mechanisms including coordination of roles as well as environmental auditing and criminal, civil and administrative enforcement with timely, impartial and independent dispute resolution. Similarly, the first United Nations Environment Assembly in 2014 adopted resolution 1/13, which calls upon countries t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting life below water; (xv) Life on land; (xvi) Peace, justice and strong institutions; and (xvii) Partnerships to achieve the goals. 134 Each of these goals has a vital connection to the others. Together, they provide an agenda for human development: development in a manner which accords adequate protection to the environment. The UNEP recognises that the natural environment forests, soils and wet lands contributes to the management and regulation of water availability and water quality, strengthening the resilience of water sheds and complements investments in physical infrastructure and institutional and regulatory arrangements for water access and disaster preparedness. 135 SDG 13 emphasises the urgent action required to combat climate change and its impacts. This is based on the recognition that extreme weather events such as heat waves, droughts, floods and tropical cyclones have aggravated the need for water management, pose a threat to food security, increase health risks, damage critical infrastructure and interrupt the provision of basic civil services. 136 The statistics on climate change indicate that: (i) Between 1880 and 2012, average global temperatures have increase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Outlook 6, UNEP, 4 March 2019]. Noting clear links between human health and the state of the environment , the report concludes that clean-up and efficiency improvements are not adequate to pursue the 2030 Agenda and the SDGs and achieve the internationally agreed environmental goals on pollution control. Instead, transformative change which reconfigures basic social and production systems and structures is needed. This includes well-designed policies on institutional frameworks, social practices, cultural norms and values along with their implementation, compliance and enforcement. In this view, a systemic and integrated policy action [Global Environment Outlook 6, UNEP, 4 March 2019] would ensure that a healthy environment is a prerequisite and foundation for economic prosperity, human health and well-being [Ibid] 140 The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the project proponent in Form 1. Disclosures in Form 1 are the underpinning for the preparation of the ToR. The EIA report, based on incomplete information has suffered from deficiencies which have been noticed in the earlier part of this judgment including the failure to acknowledge that within the study area contemplated by the Guidance manual, there is a presence of ESZs. 144 The EAC, as an expert body abdicated its role and function by taking into account circumstances which were extraneous to the exercise of its power and failed to notice facets of the environment that were crucial to its decision making. The 2006 notification postulates that normally, the MoEFCC would accept the recommendation of the EAC. This makes the role of the EAC even more significant. The NGT is an adjudicatory body which is vested with appellate jurisdiction over the grant of an EC. The NGT dealt with the submissions which were urged before it in essentially one paragraph. It failed to comprehend the true nature of its role and power under Section 16(h) and Section 20 of the NGT Act 2010. In failing to carry out a merits review, the NGT has not discharged an adjudicatory function which properly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed by this Court in the present proceedings. K Directions 147 We accordingly issue the following directions: (i) The EAC shall revisit the recommendations made by it for the grant of an EC, including the conditions which it has formulated, having regard to the specific concerns which have been highlighted in this judgment; (ii) The EAC shall carry out the exercise under (i) above within a period of one month of the receipt of a certified copy of this order; (iii) Until the EAC carries out the fresh exercise as directed above, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended; (iv) Upon reconsidering the matter in terms of the present directions, the EAC, if it allows the construction to proceed will impose such additional conditions which in its expert view will adequately protect the concerns about the terrestrial eco systems noticed in this judgment. The EAC would be at liberty to lay down appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment; (v) The EAC shall have due regard to the assurance furnished by the concessionaire to this Court that it is willing to adopt and implement necessary safeguards beari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 151 This appeal is also disposed of in the same terms, conditions, directions and observations as in Civil Appeal No 12251 of 2018. [1] Applications for EC for expansions or modernization of existing units as stipulated under the notification are made in Form 1 and shall be considered by the EAC or the SEAC within 60 days, which will decide on the due diligence necessary including the preparation of the EIA and public consultations and the application shall be appraised accordingly for the grant of environmental clearance. [2] See for instance para 2.0 of the executive summary and para 2.3.1 of Chapter I [3] United Nations Environment Programme, First Environmental Rule of Law Report. Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/27279/Environmental_rule_of_law.pdf?sequence=1 isAllowed=y [4] UN Environment, Environmental Rule of Law. Available at https://www.unenvironment.org/exploretopics/environmental-rights-and-governance/what-we-do/promoting-environmental-rule-law-0 [5] Bruntdland definition of Sustainable Development [6] Amartya Sen, Sustainable Development and our responsibilities. Available at http://www.comitatoscientifico.org/temi%20SD/documents/SEN%20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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