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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 ..... rs prior to its submission to the State Environment Impact Assessment Authority SEIAA. The NGT was of the view that it was not necessary to adjudicate upon the other contentions that were urged in support of quashing the EC as there was a substantial delay in the preparation of the EIA report. Accordingly, the NGT directed the Appellant to conduct a fresh rapid EIA and clarified that the "project proponent will not proceed on the basis of the impugned Environmental Clearance." Assailing the order of the NGT, the Appellant, as project proponent, is in appeal before this Court. 2. In a bid to address the growing need for efficient commutation, address traffic congestion and connect the Bangalore-Mysore Infrastructure Corridor (NICE road) with more access points, the Appellant formulated the PRR project scheme in 2005. A preliminary notification was issued on 27 May 2005 Under Section 17(1) and (3) of the Bangalore Development Authority Act 1976 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be constructed it would be above the underground pipe line already laid for transporting petroleum from Mangalore to Bangalore and if any leakages happens in future it would bring forth serious consequence... There exists a prima facie case in favour of the Appellant for granting an interim order of stay... The NGT noted the discrepancy between the submission of the Appellant and the existence of a reserved forest through which the proposed road was to pass. The NGT recorded that while the EIA report stated that only 200 trees would be cut for the proposed project, the report given by the Horticulture and Forest Department indicated that about 16,685 trees would be required to be felled for the proposed project. By its final order dated 8 February 2019, the NGT stayed the operation of the EC granted by the SEIAA. The relevant portion of the order reads: 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 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the acquisition of land for the PRR project was unsuccessful. The present proceedings are merely a method of delaying the acquisition proceedings; (v) The SEAC acceded to the request of the Appellant to not forward to the SEIAA a recommendation for the closure of the proposal. The SEAC recommended to the SEIAA the grant of the EC to the project in question after due consideration of the EIA report in its 121st meeting between 11 and 18 November 2014; and (vi) All objections raised by the first Respondent concerning forests, the cutting of trees and the protection of the reservoir were adequately 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 concernin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alls within the scope of para 7(f) of the Schedule to the 2006 Notification obliging the project proponent to seek a prior EC; and (iii) Whether the Appellant has complied with the conditions stipulated in the 2006 Notification and the OMs issued by the MoEF-CC from time to time. D Date of commencement of the PRR project 9. This Court is required to adjudicate whether it is the issuance of a preliminary notification Under Section 17 of the BDA Act or a final notification Under Section 19 of the BDA Act that constituted the identification of the proposed site for the project and marked its commencement for the purposes of the 2006 Notification. 10. On 27 January 1994, the MoEF, in exercise of the powers conferred by Sub-section (1) and Clause (v) of Sub-section (2) of Section 3 of the Environment (Protection) Act 1986 Act read with Clause (d) of Sub-rule 3 of Rule 5 of the Environment (Protection) Rules, 1986, issued a notification imposing restrictions and prohibitions on the expansion and modernisation of any activity or a new project unless a prior EC was granted in accordance with the procedure stipulated in the notification. On 14 September 2006, the MoEF released the 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction activity, or preparation of the land. Thus, the action by the project proponent that is relevant to the obligation to seek a prior EC under the 2006 notification is the identification of the prospective site for the execution of the proposed project. 12. Section 2(a) of the BDA Act defines "authority" as the Bangalore Development Authority constituted Under Section 3 of the Act. Chapter III of the Act deals with development schemes and the procedures that must be complied with in the carrying out of a development scheme. Under Section 15, the Appellant may draw up a detailed development scheme for the development of the Bangalore metropolitan area. Section 16(1) mandates that the Appellant must also provide, in the formulation of the scheme, the details of the land proposed to be acquired for the development scheme. Section 17 contemplates the issuance of a preliminary notification. It reads: 17. Procedure on completion of scheme.- (1) When a development scheme has been prepared, the Authority shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein, and naming a place where particulars of the scheme, a map ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details of the land proposed to be acquired. The notification is forwarded to the Corporation of the City of Bangalore, which is granted thirty days to provide its comments to the Appellant authority for transmission to the government along with the scheme for sanction. Section 17(3) stipulates that a copy of the notification shall be published in the Official Gazette and affixed in conspicuous parts of the offices of the Appellant and the Corporation. Section 17(5) mandates that the Appellant shall serve on every person whose land is proposed to be acquired a notice to show-cause within thirty days on why the acquisition of the building or land must not take place. 13. Section 18 stipulates that where the procedure stipulated Under Section 17 is complete, the Appellant shall submit the scheme with any modifications, to the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose and the Authority shall, upon the publication of the said declaration, proceed to execute the scheme. (4) If at any time it appears to the Authority that an improvement can be made in any part of the scheme, the Authority may alter the scheme for the said purpose and shall subject to the provisions of Sub-sections (5) and (6), forthwith proceed to execute the scheme as altered. (5) If the estimated cost of executing the scheme as altered exceeds, by a greater sum than five per cent the estimated cost of executing the scheme as sanctioned, the Authority shall not, without the previous sanction of the Government, proceed to execute the scheme as altered. (6) If the scheme as altered involves the acquisition otherwise than by agreement, of any land other than that specified in the Schedule referred to in Clause (e) of Sub-section (1) of Section 18, the provisions of Sections 17 and 18 and of Sub-section (1) of this Section shall apply to the part of the scheme so altered in the same manner as if such altered part were the scheme. Under Section 19, once the Government s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of any construction or preparation of land. It may be possible that following the formulation of a scheme Under Section 15 and the issuance of a preliminary notification Under Section 17, government sanction is denied or the Appellant drops the proposed scheme prior to the grant of sanction or the issuance of the final notification. In such situations, if it were held that it is the issuance of the preliminary notification identifying the proposed site for the project that marked the commencement of the project for the purposes of the 2006 Notification, the Appellant would be under an obligation to carry out the EIA process for a proposed scheme which may not eventually materialize. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity: (i) All new projects or activities listed in the Schedule to this notification; (ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting that comments may be sent to the MoEF-CC within sixty days from the date on which the notification was published. Para 7(f) of the Schedule to the draft notification reads: S. No. Project or Activity NIC code (2004) ISIC Code Category Conditions if any A A/B B (f) Roads Highways 45203* All new National Highways, Express ways and bypasses >= 30 Km Length 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 cannot be used to construe the terms of the 2006 Notification or subsequent amendments thereto. 25. In exercise of the powers conferred by Sub-section (1) and Clause (v) of Sub-section (2) of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Committee took note of the perception that highways and expressways differed from each other. Though it appeared from the comments that an expansion was sought in the scope of the 2006 Notification, the Committee expli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. The Court noted that the Committee clarified that it was never intended that the moratorium Under Section 14 applied to personal guarantors of corporate debtors. Accordingly, an amendment was enacted to Section 14. The Court then proceeded to hold, relying on consistent precedent of this Court, that a clarificatory amendment has retrospective application. A similar position is expounded by G P Singh in his seminal work Principles of Statutory Interpretation. He states: ...An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, in the principal Act was existing law when the amendment came into force, the amending Act also will be part of the existing law. 29. An amending provision which clarifies the position of law which was considered to be implicit, is construed to have retrospective effect. The position of the retrospective application of clarificatory amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the traffic on outer ring road. The brief note submitted by the Appellant to this Court states that: ...the PRR proposed to be implemented by the BDA is an 8 lane divided road around Bangalore city is primarily ease the vehicular traffic congestion on its city roads. The proposed cross-section consists of 4 lane main road in each traffic direction and 3 lane service road on either side of the main road for local traffic. The main road and the service road will be separated by access-controlled facility. The engineering designs will be carried out in accordance with Indian roads congress standards. (Emphasis supplied) The primary purpose of the PRR project is to ease vehicular traffic congestion in the city. The main road and the service road are to be separated by access-controlled facilities. The engineering designs are to be carried out in accordance with the standards laid down by the IRC. The EIA report prepared by the Appellant describes the PRR project in the following terms: The proposed Peripheral Ring Road (PRR) project alignment starts from - Tumkur Road as CH. 17a (distance of 16-20 Km from Bangalore city railway station) on NH4 & terminate at Hosur Road near B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the SEAC was in compliance with the procedure stipulated under the 2006 Notification. It was contended that the NGT erred in concluding that there was a substantial delay in the preparation of the EIA report and in suspending the operation of the EC granted to the PRR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation 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, as the case may be, for the preparation of a comprehensive ToR. Following this, the project proponent prepares a summary EIA for the purpose of the public consultation process. The summary EIA is presented at the public hearing to invite comments and objections, if any. Based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 later that four years from the date of the grant of the TORs, with primary data not older that three years. (Emphasis supplied) 41. The MoEF-CC stated that it was clearly undesirable to indefinitely continue a ToR. The environment is, by its very nature, dynamic. Soil quality, air char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oject 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 process of environment clearance de novo including taking fresh Terms of Reference (TORs), if the base line data collected for preparation of EIA/EMP report and/or public consultation are more than three years old. 3. Thus, it has been decided to substitute para 2(v) of the above referred Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 area during the months of winter (December, January and February (2009-2010), Wind Speed, Wind Direction, Temperature and Relative Humidity were recorded on hourly basis for the total study period (Emphasis supplied) 46. Admittedly, the EIA reports prepared in August and October 2014 relied on primary data wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ert 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 with lab reports. 7. Sampling locations are to be marked on maps windrose diagram to be superimposed. 8. In AAQ analysis, CO concentration is reported to be at dangerous level and this has to be checked again. 9. EMP to be revised and has to be site specific. 10. Sensitive location monitoring to be explicitly mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was no older than four years. Merely because some additional information was sought which required the furnishing of additional details and the collection of fresh samples, it cannot be said that such an exercise cures the defect arising from the preparation of an EIA report outside the time period prescribed by the MoEF-CC. Significantly, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accreditation scheme of the NABET/QCI. Moreover, a consultant would be confined to the sector for which they receive accreditation to ensure expertise and specificity in the carrying out of the EIA process. This was also to ensure the availability of facilities like laboratories. It was stated that a good quality EIA report is a precondition for improved decision-making. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation 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 shall be borne in mind in deciding the eventual directions which this Court seeks to issue. G. 2 Forest land 57. Essentially, the contention urged on behalf of the Respondents in its written submissions before this Court is that there was a patent and abject failure on the part of the Appellant as project proponent, to disclose the diversion of forest land for the proposed PRR project. The Appellant, it was contended, concealed material information concerning the diversion of forest land and absent the requisite forest clearance, the EC granted for the PRR project stands vitiated. 58. In the draft EIA report prepared for the PRR project, it was stated: The Forest (Conservation) Act, 1980 ...No forest land is involved in the proposed project. Hence, Forest clearance is not required. Despite an indication that the proposed PRR project did not involve the diversion of forest land, the draft EIA report stated: ...As per the proposed desig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught additional information from the Appellant on numerous grounds, of which one concerned the potential loss of forest cover. The SEAC, in its letter to the Appellant, noted the contradictory stand of the Appellant and stated: ...16. As per the proposals submitted in page No. 10. "No forest land is involved in the proposed project. Hence forest clearance is not required" whereas in the same proposal page No. 21 "the total forest land to be diverted is estimated to be 1.5ha in the jarakabande kaval at Ch. 12.000" to 12.500. The contradictory information to be explained with documents. The Appellant furnished a point wise reply to the question raised by the EAC. It replied to the question concerning forest land by stating: As per the proposed design the total forest land to be diverted is estimated to be 1.5 ha in the Jarakabande Kaval at Sh. 12.000 to 12.500. 25 acres of land available in possession with BDA is proposed to be given to Forest Department in lieu of 25 acre of Forest Land (PRR Chainage between 12th and 13th Km in Survey No. 59 of Jarakabande Kaval approved vide by authority Subject No. 80/89 dated 17.03.2009.) needed to PRR. The Appellant confirmed that 1.5 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EAC and the SEIAA. (Emphasis supplied) In addition to the admission by the Appellant of the contradictions in the EIA report, it sought to substitute the requisite forest clearance with an agreement with the forest department to provide an alternative site for afforestation. This is not sustainable in law. Compliance with the 2006 Notification and other statutory enactments envisaged in the EIA process cannot be reduced to an ad-hoc mechanism where the project proponent seeks to remedy its abject failure to disclose material information and seek the requisites clearances at a belated stage. 61. The Karnataka SEIAA, in its affidavit before the NGT sought to contend that the EC was granted subject to the Appellant obtaining the required forest clearance. It was stated: Forest Area (b) Environmental Clearance has been provided by SEIAA is for the present alignment of the road as submitted to SEIAA and any change in the scope of the project requires fresh appraisal. In this regard, it may be noted that details of the forest land involved are covered in the Environment Impact Assessment Report. The proponent has decided to provide 25 acres of land available with them to the Fores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed along with their application/proposal for environmental clearance. Alternatively, the proponent should delete from their land requirement, the forest land involved in the project and the proposal so amended without any forest land may be submitted for appraisal by the EAC. In case of projects where forest diversion (Stage I clearance) has been approved for part of the total forest land involved in the project, the proposal will be considered only for the land for which forest diversion has been approved and the non forest land, if any... 63. The MoEF-CC stipulated that where ToRs have been issued and the EIA report for the grant of EC is yet to be submitted, project proponents must ensure that the requisite forest clearance has been granted. A copy of the grant should be submitted along with their application for the grant of EC. Alternatively, the project proponent may delete from the proposed project any forest land that may be affected by the project. The MoEF-CC clarified that where forest clearance has been obtained for only a part of the total forest land involved in the project, the proposal will be considered only to the extent of the land for which forest diversion h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of submitting the EIA report for the grant of the EC. Where the competent authority has granted the EC for a project, the project proponent is then duty bound to obtain and submit to the competent authority the requisite stage I forest clearance for the proposed project within 12 months or 18 months, as the case may be. Where the project proponent fails to submit the requisite forest clearance within the prescribed time, the EAC or the SEAC are authorised to reexamine the project and decide whether there is a need for the reappraisal of the project. The process envisaged for the disclosure of the forest clearance procedure as well as the submission of the grant of forest clearance sub-serves the purpose of ensuring timely and adequate protection of forest land. Where the EAC or the SEAC is of the opinion that additional documents are required upon the failure of the project proponent to submit the requisite forest clearance within the prescribed time, it may direct that a fresh public hearing be conducted. 66. The Appellant attempted to remedy its contradictory stand on the forest land proposed to be diverted and its failure to obtain the requisite forest clearance by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es: 0059 8. Tamarind trees: 0040 9. Teak trees: 0201 10. Silver oak trees: 0028 11. Neem trees: 0028 12. Eucalyptus trees:7000 Total 16,785 68. The Deputy Conservator of Forests revealed that around 16,785 trees were proposed to be cut for the purpose of executing the PRR project. The abject failure of the project proponent in disclosing the number of trees required to be felled is also evident from the rejoinder filed by Appellant before this Court. It was submitted: 13. In reply to Para No. 6: As had been stated earlier, the clarifications regarding cutting of trees and the corrections have been made subsequently and additionally a further 25 acres of land has been provided for the purpose of afforestation in an alternate piece of land. The same has been shown in pg. 184 of I.A. No. 53243/2019. The EIA report prevaricated by recording that the area required for the proposed PRR project has only a few trees. Though the development of infrastructure may necessitate the felling of trees, the process stipulated under the 2006 Notification must be transparent, candid and robust. Hiding significant components of the environment from scrutiny cannot be an acceptable m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrants the attention of this Court. The SEAC, in its 121st meeting between 11 - 18 November 2014 proceeded to recommend to the SEIAA the grant of EC for the PRR project. Appraisal by the SEAC is structured and defined by the 2006 Notification. At this stage, the SEAC is required to conduct "a detailed scrutiny" of the application and other documents including the EIA report submitted by the applicant for the grant of an EC. Upon the completion of the appraisal process, the SEAC makes "categorical recommendations" to the SEIAA either for: (i) the grant of a prior EC on stipulated terms and conditions; or (ii) the rejection of the application. Significantly, the recommendations made by the SEAC for the grant of EC, are normally accepted by the SEIAA and must be based on "reasons". At its 121st meeting, the SEAC recorded the following reasons for its recommendations: PP and environmental consultant were present in the meeting. PP stated that the project was conceived and the consultant was engaged in 2003 prior to 2006 EIA Notification. Now JICA is insisting for EC. PP have submitted the compliance for the above queries raised by the committee vide their letter dated 12.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of an EC to the KGS Aranmula International Airport Project was challenged. The NGT found fault with the process leading upto the grant of the EC since sector specific issues had not been dealt with. The NGT extensively reviewed the information submitted with regard to the construction of the airport and held thus: 182. ... a duty is cast upon the EAC or SEAC as the case may be to apply the cardinal principle of Sustainable Development and Principle of Precaution while screening, scoping, and appraisal of the projects or activities. While so, it is evident in the instant case that the EAC has miserably failed in the performance of its duty not only as mandated by the EIA Notification, 2006, but has also disappointed the legal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated. I Courts and the environment 77. Courts today are faced with increasing environmental litigation. A development project that was conceptualized as early as in the year 2005 has surfaced before this Court over 15 years later. The period that has led up to the present litigation has involved a myriad of decisions and processes, each contributing to the delay of a project that was outlined to sub-serve a salient development policy of de-congesting the city. Where project proponents and institutions envisaged under the 2006 Notification abdicate their duty, it is not only the environment that suffers a serious set-back, but also the development of the nation. In the eventual analysis, compliance with the deliberative and streamlined process envisaged for the protection of the environment ensures a symbiotic relationship between the development of the nation and the protection of the environment. 78. The adversarial system is, by its nature, rights based. In the quest for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... key to preserving the right to life as a constitutionally recognized value Under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment Under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place. 80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The Appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled. 81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the Appellant and failing to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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