before the national green tribunal new...
TRANSCRIPT
1
BEFORE THE NATIONAL GREEN TRIBUNAL
NEW DELHI,
(PRINCIPAL BENCH)
APPLICATION No. 28 of 2011
&
APPLICATION No. 9 of 2012
1. Mayur Karsanbhai Parmar
Post Kaj, Taluka Kodinar
District Junagadh
Gujarat.
2. Ranjitsinh Udaysinh Parmar
Post Kaj, Taluka Kodinar
Dist, Junagadh
Gujarat.
Applicant/Petitioner
Versus
1. Union of India
Ministry of Environment & Forests
Paryavaran Bhavan, CGO Complex
Lodhi Road, New Delhi-110003.
2. Member Secretary
Mr. Hardik Shah or his Successor
Gujarat Pollution Control Board
Pariyavaran Bhavan, Sector 10-A
Gandhinagar-382010
Gujarat.
3. Collector
District Junagadh
Limda Chowk, Collector Office
Junagadh, Gujarat.
2
4. Shapoorji Paloonji & Company Ltd.
AFCONS Infrastructure Ltd.
Forbes Gokak Ltd Consortium
Notice through an Authorised Person
SP Centre
41/44,Minoo Desai Marg
Colaba, Mumbai 400 005.
OR
At Shivalaya Complex
Chhara Zanpa,Kodinar
District Junagadh, Gujarat.
Respondents
Counsel for Appllent:
Shri Anand Grover, Sr. Advocate
Shri Abhimanue Shreshtha, Advocate.
Shri Sridevi Panikkar, Advocate
Counsel for Respondents:
Ms. Neelam Rathore, Advocate for R.1
Ms. Hemantika Wahi, Advocate and
Shri Satyabrata Panda, Advocate for R-2 & 3
Shri C.A. Sundram, Sr. Advocate &
Ms. Rohini Musa, Advocate for R-4
JUDGMENT
PRESENT:
Justice A.S. Naidu (Acting Chairperson)
Prof. R. Nagendran (Expert Member)
................................................................................................... Dated 20th April, 2012
………….……………………………………………………………
JUDGMENT BY THE BENCH
1. Both the aforesaid applications have been filed by the
same Applicants, seeking more or less identical reliefs. In
3
Application No. 28/2011, apprehending, likelihood of being
affected by the proposed Greenfield Port (Seema Port) going
to be established at Sea Coast of Village Chhara, the
Applicants invoked the jurisdiction of this Tribunal under
Section 18 (1) & (2) read with Section 14 of the National
Green Tribunal Act, 2010 inter alia praying as follows:-
“a) The proceedings of Public Hearing dated 19.11.2010
conducted for the proposed Green Field Port be
quashed.
b) The Ministry of Environment and Forest be directed to
reject the Application for the proposed projects
outrightly according to the Section 8 of the
Environment Impact Assessment Notification (EIA) ,
2006, as the same is filed concealing the relevant facts
and misrepresenting the facts in the EIA Report,
c) The Respondent No.4 be directed to file a composite
Environment Impact Assessment report for the Green
Field Port and the Proposed Thermal Power Project.
d) During the pendency and/or final disposal of the
present petition, be pleased to stay further proceedings
in connection with the environmental clearance with
regard to proposed Green Field Port at Chhara, Taluka
Kodinar, District Jundgadh and the Thermal Power
Project at Kaj, Taluka Kodinar, District Junagadh of the
respondent project proponent
e) To award the costs of this application.
4
f) To pass such other and further order/s in the interest of
justice be granted.
2. The same Applicants apprehending to be affected by
the Thermal Power Plant proposed to be installed by
Respondent No. 4 (Shapoorji Paloonji & Company Ltd.),
have preferred Application No. 9/2012 once again invoking
jurisdiction under Section 18 (1)&(2) read with Section 14 of
the NGT Act, 2010, Seeking following reliefs:-
i) “The proceedings of Public Hearing dated
15.6.2011 conducted for the Proposed Thermal
Power Project at Village Kaj-Nanavada, Taluka
Kodinar, District Junagarh be quashed.
ii) The Ministry of Environment and Forests be
directed to reject the Application for the proposed
projects outrightly according to the Section 8 of
the Environment Impact Assessment Notification,
2006, as the same is filed concealing the
relevant facts and misrepresenting the facts in
the EIA Report.
iii) During the pendency and/or final disposal of the
present Application be pleased to stay further
proceedings in connection with the
environmental clearance with regard to proposed
5
Greenfield Port at Chhara, Taluka Kodinar,
District Junagadh and the Thermal Power Project
at Kaj, Taluka Kodinar, District Junagadh of the
respondent project proponent.
iv) To award the costs of this application.
v) To pass such other and further order/s in the
interest of justice be granted.”
3. According to the Applicants, a Port has been
proposed to be set up to import coal from Indonesia.
The said coal is proposed to be transported by a
conveyer belt to be used in the Thermal Power Plant,
therefore, the said port is to be construed as a captive
port for the Thermal Power Plant.
The submissions of the Applicants are, however,
repudiated by Respondent No. 4. According to the
said Respondent, the above said two projects are not
composite to one another; on the other hand they are
separate and independent projects.
4. In course of hearing it was found that not only
parties in both the cases are same but also the facts
and point of law involved. Therefore, by consent of the
Counsel for the parties both the cases were heard
together and are disposed of by this common
judgment.
6
The mute question which needs determination in both
the applications is as to whether the applicant has any
cause of action as on date to approach this Tribunal or
the applications are premature, because no order has
been passed granting EC for either of the projects as
yet and the matter is still under consideration, of the
concerned Statutory Authorities.
5. According to the Applicants, the Environment
Impact Assessment (EIA) reports prepared for both the
projects do not disclose the correct facts and there is
deliberate suppression and of concealment of vital
informations. The same also contain false or
misleading information with respect to material facts.
Further, there has been violation in the process of
public hearing, as prescribed under EIA Notification,
2006 as well as the Office Memorandum dated 19th
April 2010 issued by the MoEF. It is submitted that in
the event EC is granted ignoring aforesaid infirmities,
there would be likelihood of infringement of legal right,
vis-a-vis the environment.
6. On commencement of the hearing, a preliminary
objection was raised by Mr. Sundram, Learned Sr.
Advocate appearing on behalf of Respondent No.4.,
mainly on the ground that the purported Applications
7
filed by the petitioner under Section 14 read with
Section 18 of the NGT Act, 2010 are not maintainable
as no decision has been taken nor permission /
clearance has been accorded to establish any of the
projects till date. In short, according to Mr. Sundram
no cause of action has arisen as yet to invoke the
appellate jurisdiction conferred upon this Tribunal
under Section 18 of the NGT Act. Further the
jurisdiction under Section 14 of the NGT Act also
cannot be invoked as the mandatory requirements to
invoke such jurisdiction are not satisfied.
7. To appreciate the arguments it would be prudent
to refer to relevant provisions of Section 16(h) of the
NGT Act, 2010 which reads as follows:-
“Tribunal to have appellate jurisdiction – Any
person aggrieved by –
a) xxxx b) xxxx c) xxxx d) xxxx e) xxxx f) xxxx g) xxxx h) an order made, on or after the commencement
of the National Green Tribunal Act, 2010,
granting environmental clearance in the area in
which any industries, operations or processes
or class of industries, operations and processes
8
shall not be carried out or shall be carried out
subject to certain safeguards under the
Environment (Protection) Act, 1986 (29 of 1986).”
8. In the case in hand, M/s. Seema Port Pvt. Ltd.,
the project proponent made an application on 3rd July,
2009 for setting up of a Port at Chhar in the State of
Gujarat. The said application was dealt with in
accordance with the provisions of Act and Rules and a
review was conducted by the Environmental Appraisal
Committee (EAC) on 21st December, 2009. In usual
course of business, Terms of Reference (TOR) were
issued by the MoEF on 22nd January, 2010 and public
hearing was conducted in consonance with the
provisions of EIA Notification 2006, on 19th November,
2010. Thereafter, it appears the Gujarat State Coastal
Zone Management Authority reviewed the project on
27th February, 2012, and the matter now rests at that
stage. In other words the process is still under
progress and no final decision has been taken either
by the Gujarat State Coastal Zone Management
Authority or EAC, or by the MoEF, as on date.
9. So far as the Thermal Power Plant is concerned,
Respondent No.4 M/s S.P. Energy (Gujarat) Pvt. Ltd.
submitted the application in Form-I on 1st February,
2010. The same was reviewed by the EAC on 30th
9
April, 2010, TOR were issued by the MoEF on 24th
May, 2010, Public hearing was conducted on 15th
June, 2011 and the matter is now pending before the
MoEF for taking the decision with regard to
Environmental Clearance.
10. It is clear from the narrations made above that,
no decision to grant EC has been taken by the MoEF
till date nor any order as contemplated under Sub-
Section (h) of Section 16 of NGT Act has been passed,
nor has any decision or direction been communicated,
with regard to any of the aforesaid two Projects.
11. Section 16 of the NGT Act, authorizes a person
aggrieved by an order granting environmental
clearance for any project to file an appeal before this
Tribunal within a period of thirty (30) days from the
date on which the order or decision is communicated
to him. In the case in hand, the MoEF admittedly has
not taken any decision with regard to granting EC to
either of the project and as such, the jurisdiction
conferred upon this Tribunal under Section 16 of the
Act cannot be invoked at this stage.
12. Being conscious of the aforesaid Position of law,
Mr. Grover, learned Sr. Advocate appearing in both the
applications submitted that the jurisdiction of this
10
Tribunal under Section 14 of the NGT Act, 2010 being
much broader, the two applications should be
construed to be under the said Section. The position
of law is no more resintegra that if a Court has
jurisdiction to grant a relief, nomenclature of the
application shall not stand on its way. In other words,
if this Tribunal has power under Section 14 to grant the
relief sought for there would be no impediment to
proceed with the hearing of the case.
13. To appreciate the power of this Tribunal vested
under Section 14 of the NGT Act, 2010 vis-à-vis the
reliefs sought for in both the cases, it would be prudent
to scan through the provisions of the said Section 14
for the sake of brevity and better understanding.
Section 14 reads as follows:-
“Tribunal to settle disputes –
i) The Tribunal shall have the jurisdiction over all civil
cases where a substantial question relating to
environment (including enforcement of any legal
right relating to environment), is involved and such
question arises out of the implementation of the
enactments specified in Schedule 1.
ii) The Tribunal shall hear the dispute arising from
the questions referred to in sub-section (1) and
settle such disputes and pass order thereon.
11
iii) No application for adjudication of dispute under
this section shall be entertained by the Tribunal
unless it is made within a period of six months
from the date on which the cause of action for
such dispute first arose.”
The expression “substantial question” referred
to in Section 14, has been defined under Section
2 (m) of the Act which reads as follows:
(m) “Substantial question relating to
environment”
shall include an instance where:-
(i) There is a direct violation of a specific
statutory environmental obligation by a
person by which:-
(A) The community at large other than an
individual or group of individuals is
affected or likely to be affected by the
environmental consequences; or
(B)The gravity of damage to the
environment or property is substantial;
or
(C) The damage to public health is
broadly measurable;
12
(ii) The environmental consequences relate to
a specific activity of a point source of
pollution.”
14. According to Mr. Grover, learned Sr. Advocate,
a combined reading of Section 14 and 2 (m) leads to a
conclusion that violation of any specific Statutory
obligation which has direct access to the cause and
which is likely to affect the community at large can be
raised before this Tribunal invoking jurisdiction under
Section 14 of the Act.
Expanding the said argument Mr. Grover further
submitted that the appellate power of the Tribunal to
exercise jurisdiction under Section 16 (h) being
specific, under the said provision the order granting
environmental clearance can be assailed by a person
aggrieved, On the other hand, the jurisdiction under
Section 14 is much broader and deals with cases
where substantial question relating to the environment,
which arises out of implementation of the enactments
listed in schedule 1 of the Act, are concerned.
15. Referring to the facts of the case, Mr Grover
further submitted that in the case in hand there has
been gross violation of the process of public hearing as
prescribed under EIA Notification, 2006 as well as the
13
office memorandum dated 19th April, 2010 issued by
the MOEF. The project proponent, in both the cases,
had not approached the authorities with clean hands,
in as much as, they have concealed material facts and
furnished concocted particulars. There was also gross
violation of the procedure prescribed for conducting the
public hearing. According to Mr. Grover, if the MoEF
on the basis of such improper particulars grants EC,
there is likelihood of direct violation of specific
Environmental obligations, thereby causing, or
likelihood of causing environmental disorders.
16. The submissions made on behalf of the
Applicants are strongly repudiated by Mr. Sundram
Learned Sr. Advocate appearing for R-4. According to
Mr. Sundram, in order to invoke jurisdiction under
Section 16, this Tribunal has to be satisfied that the
relief sought for involves an issue that would fall within
the realm of being a civil case, i.e., where a legal right
is accrued and a corresponding legal obligation is
anticipated. Further, the said Civil issue should involve
a substantial question relating to environment and
such questions should arise out of the implementation
of the enactments specified in Schedule (I) to the Act.
‘’Substantial question related to environment”, as
defined under Section 2 (m) of the Act, means and
connotes the environmental consequences relating to
14
an activity or point of source of pollution. It is, further
submitted that a mechanism having been established
in terms of the Statute, under the EIA Notification,
2006, consisting of competent Authorities, who are
empowered to look into every aspect, conduct studies
and assess the impact, culminating in grant of
environment clearance by the MoEF, seeking relief
from this Tribunal at this stage is rather premature and
it is a fit case where both the Appeals should be
dismissed in limini, on that ground itself.
17. Heard Learned Counsel for the parties diligently
and perused the relevant documents annexed to the
pleadings meticulously. There is no dispute that the
paraphernalia as well as formalities for considering as
to whether E.C. should be granted to both the projects
or not, are still in process and till date the MoEF has
neither taken any decision nor passed any order.
18. The Environment Protection Act is a self-
contained legislature. In consonance with the
provisions of the said Act, and Rules, Notifications are
issued, laying down a full-fledged procedure required
to be adopted for imposing restrictions and prohibitions
on the new project or activities, or on the expansion or
modernisation of existing Projects or activities based
on their potential environmental impacts as indicated in
15
the Schedule to the Notification. It is well settled that
unless prior environmental clearance is granted in
accordance with the objectives of National
Environment Policy, no new project can commence.
Environmental Impact Assessment Authority is
constituted by the Central Govt. in consultation with the
State Govt. or Union Territory Administration
concerned under Sub Section (3) of Section 3 of the
Environment (Protection) Act 1986, for conducting the
assessment and impacts.
For the sake of better appreciation, Clause-2 of the
Notification dated 14th September, 2006, is quoted
herein below:-
2.“Requirement of prior Environmental
Clearance (EC):- The following projects or
activities shall require prior environmental
cleanse from the concerned regulatory authority,
which shall hereinafter referred to as the Central
Government in the Ministry of Environment and
Forests for matters falling under Category “A” in
the Schedule and at State level the State
Environment Impact Assessment Authority
(SEIAA) for matters falling under Category “B” in
the said Schedule, before any construction work,
or preparation of land by the project
16
management except for securing the land, is
started on the project or activity:
(i) All new projects or activities listed in the
Schedule to this notification.
(ii) Expansion and modernization of existing projects
or activities listed in the Schedule to this
notification with addition of capacity beyond the
limits specified for the concerned sector, that is,
projects or activities which cross the threshold
limits given in the Schedule, after expansion or
modernisation.
(iii) Any change in product-mix in an existing
manufacturing unit included in Schedule beyond
the specified range.
19. As per the provisions of the EIA Notification
approval for the projects culminating in granting of
Environmental Clearance, follow a series of steps as
outlined below:
(a) Submission of Application along with Form 1/Form
1A by the project proponent
(b) Preparation and submission of an Environmental
Impact Assessment Report as per the Terms of
Reference [ToRs] for the project given by the
Expert Appraisal Committee
17
(c) Notice by the State Pollution Control Board for a
mandatory Public Hearing to be published in at
least two local newspapers
(d) Access to the Executive Summary and EIA Report
at designated places
(e) Conducting the Public Hearing in a manner which
ensures the widest possible participation of the
affected people.
(f) Detailed Scrutiny of the EIA report and the
proceedings of the Public Consultation by the
Expert Appraisal Committee and the Ministry of
Environment and Forests
(g) Grant of approval or rejection of application by the
Ministry of Environment and Forests, after
consideration of the pros and cons and the impact
or irrevocable harm likely to be caused to the
biodiversity, environment & forests.
20. In the case in hand admittedly, the procedure /
assessment under EIA Notification 2006, read with the
Environment (Protection) Act and Rules for
determining as to whether EC can be granted to the
Project or not is in progress. The Competent
Authorities under the said Notification are required to
conduct scrutiny of the projects, and consider the pros
and cons stage by stage. The persons having interest
18
or likely to be effected / aggrieved if the Project is set
up have access to take part and put forward their
grievances. In course of assessment, the Competent
Authorities are authorised to take into consideration
the grievances put forth before them. Elaborate
procedure is also laid down for public consultation and
public hearing in which the inhabitants of the localities
and others who are likely to affected by the projects
have a right to canvas their grievances. The EIA
Notification, 2006, provides a complete and self-
contained machinery to look into the grievances of
persons aggrieved who apprehend and / or likely to be
affected. The Authorities shall also in course of
assessment, work-out the impact of the projects on the
environment, and arrive at such conclusions as would
be just and proper and in consonance with law.
21. There is no allegation that the Competent
Authorities are not following the mandatory
requirements laid down in the EIA Notification, 2006 or
any of the provisions of the Acts and Rules. The only
grievance which is made out before this Tribunal is that
the Project Proponent had suppressed vital facts and
furnished erroneous and concocted materials and that
the public hearing has not been conducted in proper
perspective. But then all these eventualities can be
considered by the Committee consisting of Competent
19
Authorities, in course of the assessment process. The
Respondents have also an opportunity, to put forth
their grievance before the Authorities. Therefore, the
allegations levelled by the Applicants, appears to be
more on the basis of surmise and conjecture.
Admittedly, no EC has been accorded to any of the
projects and it is not known whether the same will be
granted or not. Thus, as on date there is no
apprehension or likelihood of any damage being
caused to the environment. That apart, Applicants are
not left remediless. In the event EC is granted by the
Competent Authority the said decision can be assailed
in Appeal.
22. In the aforesaid scenario, as the applications
filed by the Project Proponent (R-4) for granting EC for
the Projects are still under consideration, we feel any
interference by us at this stage, in the midst of decision
making process would amount to pre-judging the
issues. Therefore, we refrain from entering into the
arena of controversy, as the same, according to us,
would be premature.
23. The jurisdiction of Section 14 of the Act, can be
invoked only if the matter in controversy is not under
consideration of any Competent Authority and or by
afflux of time a project is likely to cause harm to the
20
environment. None of the aforesaid eventualities are
satisfied in the present case. We are, therefore, not
inclined to entertain these applications and dispose of
the same granting liberty to the Applicants to file
detailed objection before the Expert Appraisal
Committee (EAC) and or before the MoEF as the case
may be. We, further, direct that in the event such
objections are filed by the Applicants, the same should
be considered and only thereafter a decision should be
taken either for granting of Environment Clarence to
the aforesaid two projects or not. We make it clear
that we have not examined the merits of the case nor
considered the submissions as to whether the two
projects are composite to each other or are
independent. The Authorities have the liberty to
decide the said issue also in accordance to law and
materials available.
Both the Appeals are accordingly disposed of,
granting liberty to the Applicants to approach this
Tribunal once again if exigencies arise. Parties shall
bear their own cost.
Prof. R. Nagendran Justice A.S. Naidu Expert Member Acting Chairperson
Durga Malhotra 20
th April, 2012