In the Bhopal edition of daily newspaper 'Times of India' dated 10 April 2013, a news item was published on the front page under the caption "Dolomite mining a threat to Tiger corridor in Kanha - Foresters want ban on mining in Mandla District". Considering the gravity of the news item suo-motu cognizance was taken by this tribunal and notice was issued to the Respondent Nos. 1 to 6 on 10th April, 2013 with a direction to place on record the particulars of Mining Leases (in short 'ML') mentioned in the news item. In response to the above notice, the Respondent No.5, Madhya Pradesh State Pollution Control Board (in short 'MPPCB') submitted reply dated 29th April, 2013 stating that the officials of the MPPCB inspected the Dolomite mines in Mandla District and monitored the Ambient Air Quality (in short 'AAQ') in different locations where Consent to Operate the mines was granted to 36 ML holders. Out of 36 mines, 26 mines are having valid Consent to Operate and during the inspection, they were found to be under operation. Of the remaining 10 mines for which Consent to operate has expired, it was found that two mines are still under operation which is irregular and eight mines are closed. Therefore, show cause notice was issued for closure of the aforesaid two mines. With regard to AAQ it is reported that the standards are within the permissible limits and no pollution is observed. However, not satisfied with the above reply of the MPPCB, during the hearing of the case on 1 May 2013 this Tribunal directed the MPPCB to furnish full particulars of all the Dolomite mines in Mandla District. After considering the arguments of both the parties the Tribunal directed that a meeting be convened immediately at the highest level under the chairmanship of the Chief Secretary to the Government of Madhya Pradesh involving the officials of the State Forest Department, National Tiger Conservation Authority, Officer in-charge of Regional Office, MoEF, Bhopal, Principal Secretaries, Environment and Mines and Minerals, Government of Madhya Pradesh, Chairman, State Pollution Control Board, Madhya Pradesh, District Collector, Mandla and examine and take following actions in accordance with law duly fixing a time limit for each of the issues to be taken up and completed with promptitude by the authorities concerned. i.) Necessary penal action shall be initiated against those ML holders who were found violating the provisions of Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 as well as the ML conditions and Forest Act and even revoking their license if repeatedly found violating the provisions of law. ii.) Though, ML area of most of the mines is limited and below 5 hectares, they are located in clusters in the limits of discussed 6 villages. Heavy human activity in these clusters involving high concentration of labour, deployment of machinery, movement of trucks to and from the mine sites shall definitely have a cumulative impact. Therefore, it may be examined whether these mines require cumulative Environment Impact Assessment (EIA) study and then only granting EC under cluster approach as envisaged in EIA Notification, 2006 and amendments made therein from time to time and in accordance with guidelines issued by the MoEF from time to time. In the meanwhile, movement of vehicles and mining activities shall be regulated in consultation with the Forest Department to not disturb the wildlife in the area. iii.) The reply filed on behalf of the State Govt. functionaries reveal that there is no coordination between the Mining and Forest Departments at least in case of those mines which are located in the Forest area and which are in close proximity to the forest boundary. In the reply filed on behalf of the Respondents No. 2, 3, 4 and 6 it was stated that the local Forest officials have expressed their deep concern pertaining to the mines sanctioned in the Reserved Forest and mine operators are required to obtain transit passes from the Forest Department. It was also stated that the ML conditions are not informed to the Forest Department and the ML holders are also reluctant to provide the information to the Forest Department. There is a need to put full stop to this state of affairs and streamline the entire procedure of sanctioning & operating the mines. The Government should evolve a suitable mechanism to avoid such conflicting situation and ensure coordination among all the law-enforcing authorities in the state. iv.) The irregularities pointed in the reply filed by the Regional Office, MoE F shall be taken up seriously and all the mines found violating the provisions & ML conditions as well as Environmental laws should be dealt with seriously in accordance with law. v.) Keeping in view the concern expressed by the NTCA in their affidavit dated 25.02.2014 dealt herein, all the necessary caution needs to be taken before reviewing the existing MLs and granting / renewing EC and also before granting the Consent to Operate the mines. vi.) Even though the mines are under operation for a long period, it is surprising to note that such grave irregularities have been noticed only during the inspection of mines by the officials of the Regional Office, MoEF that too after the case was taken up suo motu by this Tribunal and no record was placed before us to the effect that any severe action has been taken against the defaulting ML holders. The Chief Secretary shall get the whole issue enquired and initiate action against the erring officials if it is found that they indulged in dereliction of duty by allowing the mines to continue to operate violating the law. vii.) With regard to those mines which are located on the boundary of the notified forest itself the issue may be examined in details and action may be taken to revoke their license in accordance with law, if no such provision of granting MLs touching the notified forest boundary, exists. With the above directions, Tribunal disposed of this Application. To ensure compliance of the order, it was directed that the matter be listed in the Court on 31 July 2014.
Applicants argued, inter alia, that issues like climate change had not been considered when planning a bypass road. The Applicants have filed the present Application under Section 14, 15, 17 and 18 of the National Green Tribunal Act, 2010 challenging the proposed Jalgaon bypass road of the National Highway No.6 which has been proposed by Respondent No.2 i.e. National Highway Authority of India (NHAI). The Applicants claim that the present Application has been filed to salvage the high fertile and productive land from the proposed bypass road which is not required and this unnecessary proposal of having a by-pass which would create livelihood problems for many farmers and change in land use thereby affecting the environment.
On hearing the contentions of both appellants and respondents the Tribunal held that;
It would partially allow the Application with following directions to Respondent No.1 and 2:
â€¢ Respondent-2 (NHAI) shall submit a detailed upgradation proposal for the existing road passing through Jalgaon city by proper laning and strengthening of road, provision of traffic aids etc. within next three months.
â€¢ This project shall be undertaken along with the proposed bypass project and this work will be given priority over the proposed bypass to ensure that it is commissioned and made operational before the approval and implementation of proposed bypass road.
â€¢ Respondent-3 (The Collector, Jalgaon) shall ensure the compliance of these directions of the Tribunal.
Accordingly, the Application is disposed of.
This appeal is filed being aggrieved by the grant of Forest Clearance (for short FC) accorded by the First respondent through its Order No. 8-65/2009 â€“ FC dated 3rd of June 2011 under which deforestation of 80.507 hectares of government forest land diverted for construction of 65m high diversion dam across river Alakhnanda near village Helong in Chamoli District of Uttarakhand State for the purpose of generating hydroelectricity power.
The Environmental Clearance (for short EC) was already granted as early as 22nd August 2007 by the Ministry of Environment and Forest (for short MoEF). It has been more than three years, and the EC has not been challenged so it is valid. Thus, the only challenge made is for the grant of FC and not EC.
Appellant No. 1 is a Gandhian Social Activist working for the Environment Protection and Peoples' right over the natural resources in middle Himalaya area since 1988. Appellant No. 2 is an economist and a former Professor of Indian Institute of Management, Bangalore and lives on the bank of the river Alaknanda. Appellant No. 3 is a Social Activist and elected as Van Sarpanch of Village Naurakh. All of them are affected by the FC of the Vishnugad-Pipalkoti hydro power project in which construction of a 65m high diversion dam across river Alaknanda at Helong Village, Chamoli district of Uttarakhand State is proposed.
The total land requirement of the project is about 120 hectares. Out of which, about 40ha is agriculture land and about 80 hectares is government forest land. The grant of FC in the present case was substantially based on the study made by Indian Institute of Technology, Roorkee (for short IITR) and Wildlife Institute of India, Dehradun (for short WII). As per the scope of work, "effectiveness of mitigative measures and compliance of stipulated conditions on which various projects earlier have been examined", was to be completed, however, no such study was conducted. Thus, the recommendation of the Forest Advisory Committee (for short FAC) was based on non-existent study and as such is arbitrary and whimsical. The Respondents No. 1 to 3 have filed their detailed relies. According to them, all the allegations made and the grounds raised in the appeal are all baseless and liable to be rejected.
The following questions arise for considerations in this appeal-
a) Whether the appellants can be called as aggrieved and /or injured "person(s)" as defined under the National Green Tribunal (for short NGT) Act and the appeal is maintainable by them:
A reading of Sections 2(j), (i) to (viii) of the National Green Tribunal Act, 2010 would reveal that any individual, Hindu undivided family, Company, Firm, an association of persons or a body of individuals whether incorporated or not, trustees of a trust, a local authority and every artificial juridical person not falling within any of the preceding sub-clauses, would indicate "person" who can maintain an application/appeal under the NGT Act. But, it is the argument of the learned counsel of the Respondent that even the above defined person shall be a person either aggrieved or injured directly or indirectly and not otherwise. The only exception to be made for treating an appeal/application as not maintainable could be a matter which falls beyond the seven (7) Acts as notified in Schedule I of the NGT Act 2010 and in a case of mala-fide and vexatious litigation brought before this Tribunal and not otherwise.
The statutory provisions are subservient to the constitutional mandates. The person as defined or person aggrieved as occurs in Sections 2(j), 16 and 18 (2) of the NGT Act cannot be placed above "every citizen" as appears in Article 51A of the Constitution of India. Once the mandate is of every citizen, any person can approach this Tribunal complaining environmental threat in the activities of the State or any organization or individual.
Therefore, the appellants are interested persons in the environment and ecology of the area, though they are not directly affected/ injured at this point of time. But, they can be definitely called aggrieved persons since they apprehend some danger, if the project is launched without taking proper precautions.
b) Whether the appellants are justified in raising grounds that may be available for challenging the EC or its conditions in the guise of challenging the grant of present FC:
Admittedly, the EC was granted to the project on 22nd August, 2007 and no challenge was made to EC. The FC alone is under challenge in this Appeal. Therefore, the submission made by learned counsel for the appellant that all the issues that arise from the EC can also be raised in this appeal cannot be countenanced and accepted. But an exception can be made when the issues overlap i.e. the issues that were considered at the time of grant of EC and again while granting FC, since they are considered one after the other, independently.
c) Whether the FC granted in favour of project proponent is in consonance with the principles of sustainable development and precautionary measures:
The appellants have raised grounds pertaining to negative impact of tunneling on water springs and its subsequent impact on forests and agriculture; Methane emissions from reservoirs; deterioration in water quality due to less absorption of beneficent chemicals; loss of aesthetic and â€˜non-use values'; value of free-flowing rivers; breeding of mosquitoes in reservoirs and the negative impact on health; deprivation of sand and fish to local people; negative cultural impacts; and negative impact of blasting/ tunneling, etc. Whereas the respondents have filed detailed replies countering the allegations and relied on various documents/ reports starting from Environment Impact Assessment/Environment Management Plan report, Geological reports, Appraisal documents for World Bank loan, etc.
The process of analyzing cumulative effects is an enhancement of the traditional EIA components: (i) scoping, (ii) describing the affected environment, and (iii) determining the environmental consequences. The Cumulative Impact Assessment f(or short CIA) studies in the instant case were awarded to IITR & WII separately with elaborate TOR and time bound deliverables as evidenced from the material placed on record.
With regards to question pertaining to environmental flow, though originally part of EC, it is argued that the MoEF has stipulated at Para (xi) of the FC that minimum environmental flow as recommended in IITR study report shall be released whereas, the environmental flow determined by IITR is erroneous owing to limited data, non-use of Building Block Method and mechanical application of other methodologies as examined by Mr. Himanshu Thakkar and Parineeta Dandekar of South Asian Networks on Dams, Rivers and People. In this context, a study of International Water Management Institute (for short IWMI) has been quoted that gives environmental flow recommendations for the Ganges basin. The learned judges are of the considered opinion that the stipulations regarding environmental flow certainly follow the sustainable development and precautionary principles.
"We are of the opinion that there are no substantial merits calling for our interference into the FC, in question, granted by the Respondent No. 1. "
The appeal stands disposed of subject to the following directions:
1. Integrated CIA Report preparation: The first respondent shall setup an appropriate committee of experts drawn from IITR and WII in the preparation of CIA report of the five projects considered in WII report to integrate the physical, biological and social impacts in making comprehensive cumulative impact assessment report and frame appropriate conclusions and recommendations within a reasonable timeframe for consideration and final review by the Ministry of Environment and Forest to avoid any unforeseen environmental and ecological threat in the study area. If this direction is not carried out, the appellant is at liberty to take appropriate steps as required under the law.
2. Preparation of Cost Benefit Analysis Norms: Considering the need for better procedures in making sound evaluation of the forest land diversion proposals, following options for cost benefit analysis shall be explored for future proposals:
a. the guidelines for cost benefit analysis may be updated/modified to provide clear instructions regarding the various cost and benefit elements to be incorporated for the purpose of arriving at cost benefit ratio; and
b. the cost benefit analysis for each proposal received for diversion of forest land shall be done adopting the prescribed procedure.
The applicants challenge the construction of the road from Vitthalwadi to National Highway-4 bypass, which is being constructed under the Draft Development Plan on the ground that the Draft Development Plan has not been approved by the State Government, no permission from Irrigation Department has been taken and the road touches the Vitthalwadi Temple and its surrounding areas which are Grade I Heritage Buildings and even permission from Archaeological Department has not been taken. This construction, according to the applicants, is bound to cause massive environmental, ecological and social damage. The construction of the road is being carried out in the river bed i.e. within the "blue line". Thus, the applicants pray that the on-going construction work should be stopped immediately and the respondents; any other person or agencies should be restrained from dumping any debris or construction material; the entire debris and soil dumping should be directed to be removed and finally the boundaries of the river should be expressly defined and marked by the local government in conjunction with Irrigation Department and the Archaeological Department.
According to a new Draft Development Plan, Vithalwadi was included in the Pune Municipal Corporation. The Construction is part of the new Draft Development Plan.
According to the applicants, the Respondents (Pune Municipal Corporation) are constructing the road within the Mutha river bed itself and have elevated the level of the road by 20 ft. to 30 ft. by way of illegal dumping rubble and earth and tens of thousands of truckloads of debris and soil are dumped right in the river bed for elevating the road. As a result, there has been reduction of the width of the river Mutha by about 55% and it is bound to result in increased floods in the surrounding densely populated residential areas during rainy season.
The applicants, have raised two specific grounds â€“ one that the road is being constructed by the respondents into the river bed (i.e. blue line) and secondly huge dumping of debris have caused destruction of the riparian zone along the Mutha river.
The Respondents have put forth the reasons for the construction of the road: (i) Serve a public purpose of reducing traffic congestion on Sinhagad Road, (ii) Save the Dam, (iii) Reduce fuel consumption, and (iv)Consequently reduce vehicular pollution. In nutshell, it was going to serve a public purpose. According to them, the environment and ecology is going to benefit from this Road.
The Tribunal is therefore expected to derive a balance between the apprehended environmental and ecological damage on the one hand and the need for construction of the road with its economic advantages on the other. Keeping in mind the public interest, that by imposition of certain conditions, environmental and ecological interests can be safeguarded, The Tribunal permitted Respondents to complete the project. Accordingly, the following conditions were imposed subject to which the project could continue:
(a) Respondents would be permitted to carry out and complete the project of building only 24 metre wide road from Vitthalwadi to NH-4 bypass as strictly and subject to the conditions stated hereinafter.
(b) Respondents shall make every effort to realign the road to bring it as far as possible closer to and beyond the blue line. It shall ensure to extend the least part of the project in the river bed/blue line.
(c) The road/project shall be constructed on elevated pillars alone in the area that falls within the blue line.
(d) Respondent will remove the debris dumped at the present site and shift the same to the red line by following 1 in 25 years rule.
(e) A massive plantation should be undertaken on both sides of the river, also in the no-development zone by Respondents as well as the State Government of Maharashtra. Adequate protective measures should be undertaken to prevent flooding and submerging of the residential area along the proposed road.
(f) The conditions imposed by the Chief Engineer, Irrigation Department shall mutatis mutandis be part of the Tribunal's directions.
(g) Respondents shall take appropriate steps against unauthorised constructions, if any, raised on and inside the blue line and pass order of demolition or such other order as is permissible in accordance with law. The Tribunal also directed the said authorities to ensure that no encroachment is permitted and no construction in future is permitted on and inside the blue line of the river Mutha.
If the conditions imposed under this order are found to be onerous by the State, particularly Respondent No.1 (Pune Municipal Corporation), then they can even give up the project on river Mutha as an alternative road on the other side of the river has already been constructed to provide the connectivity. In the event the Department decides to give up the road project, it shall be incumbent on it to remove all debris from within the blue line that has been used to create the high rise road segment. It is stated to be a 100 ft. wide road on the left bank of the river Mutha giving connectivity with the same bypass. Thus, in the present case,
Respondent No.1 has options and alternatives available to it while ensuring that both the public interest and the environment do not suffer.
The Applicants filed Writ Petition in the High Court of Judicature of Bombay Bench at Aurangabad, alleging that certain forest lands were being illegally diverted for non-forest purposes, which would cause felling of trees to the extent of 2.5 to 3 lakhs and that would be a great loss to the environment. By order dated October 1st, 2003, Division Bench of the High Court, transferred the Writ Petition to this Tribunal in view of Judgment of the Apex Court in the case of "Bhopal Gas Peedith Mahila Udyog Sangathan & Anr Vs Union of India" (2012) 8, SCC 326. The case of the Applicants, as can be gathered from the pleadings of the Writ Petition, is that there are ten projects as stated in the petition, which are Irrigation Projects of large scale, minor scale, Percolation Tank etc. For the purpose of these irrigation projects, the Respondents have planned to divert forest area, without taking due Forest Clearance (FC) from the competent Authority. They are likely to cut down large number of trees in the range of 2.5 to 3 lakhs, which will cause severe environmental damage. The Applicants further allege that some part of Yawal sanctuary is likely to be submerged in irrigation project called "Handya-Kundya"Project, which will affect the wildlife in the said sanctuary. So also, it will affect Teak wood and Bamboo trees within the area of said sanctuary.
The Respondent Nos.2 to 6 (2.The State of Maharashtra, 3. The Chief Conservator of Forests, Seminary hills, Nagpur, 4. The Conservator of Forests, Dist. Dhule, 5. The Deputy Conservator of Forests, Jalgaon Division 6, The Deputy Conservator of Forests, Yawal Division), resisted the petition on various grounds. According to them, total land covered by the said ten projects is 6,394.18 Ha. All the projects are for public welfare and the cost benefit ratio is more than the loss of number of trees, which is estimated during the study that was undertaken before planning of the projects. They submit that by way of compensation equal area of non- forest land was received and shall be utilized for afforestation. They further submit that they will plant large number of trees over the available land of 1423.8 Ha. The felling of trees is 133179, whereas 2562966 seedlings are sought to be planted. The project will solve the water scarcity problem faced by the local public members. It will also cause benefit to the Agriculturists, because irrigation facility will be available to them for irrigation of their lands. It is denied that wildlife is likely to be disturbed due to the projects or any part thereof.
After hearing the matter, the Tribunal gave the following directions:
â€¢ The Respondent Nos.2 to 6 shall monitor plantation of adequate number of trees, as far as possible of 1:8 ratio and make serious endeavor to protect the plants to improve survival rate of the trees.
â€¢ The projects shall be implemented peri pasu with the process of plantation, proper maintenance, rearing, monitoring, watering and protecting of plants, to ensure that when the projects are completed, the plants will be transformed as trees.
The Application was disposed of. No costs.
Application for, inter alia, protection of â€˜areas likely to be inundated due to rise in sea level consequent upon global warming'. The appellants (applicants in Application No. 74 of 2014 hereafter commonly referred as â€˜appellants) are persons interested in the protection of environment and ecology. They are persons aggrieved and affected due to the Vizhinjam Port Project (for short â€˜the project'). The Appellants are fishermen belonging to families that traditionally do fishing in the project area and are representatives of the larger community of fisher folk who inhabit that area. By the project, not only the ecology and environment of that area would be affected but there would also be adverse impact on their livelihood. The Appellants are also the registered members of the Fish Workers Welfare Board formed by the Government of Kerala to give assistance to the people in the fishing occupation. This is the benchmark to determine that Appellants are sea-going fishermen. Vizhinjam International Seaport Limited (Respondent No. 3, Hereafter â€˜the Project Proponent ') formulated a project for development of Vizhinjam International Deep water Multipurpose Sea Port at Vizhinjam in Thiruvananthapuram (Trivandrum) district, in the State of Kerala. This Project involves the construction of quays, terminal area and port building and is expected to be completed in three phases. The first phase is proposed to be built on 66 hectares of land to be reclaimed from the sea. The material required for phase I reclamation is proposed to be obtained from dredging activity in the sea. This phase requires 7 million metric tonnes of stone, aggregates, sand and soil for construction of a breakwater stretching almost 3.180 Kms into the sea. This material is sought to be sourced from blasting quarries in Trivandrum and in neighbouring district of Kanyakumari in Tamil Nadu State, possibly falling in Western Ghats region. After hearing the arguments, the Tribunal directs that the matter be listed for arguments on merits.
Cites a Supreme Court decision which described climate change/global warming as a â€˜major threat to the environment'. 1. It is held that the applications are barred by limitation only in respect of the allotments made to the respondents/allottee Project proponents.
2. It is held that the Amrit Mahal Kaval lands allotted to the respondents/allottee Project Proponents are not forest lands.
3. In view of the discussions made and by applying the Doctrine of Sustainable Development, it is held that the respondents/allottee Project proponents are not to be restrained from carrying on their proposed projects in view of the allegations made by the applicants that the proposed project, if allowed, would cause environmental degradation and ecological imbalance. But, the respondents/allottee Project proponents shall carry on their further activities in respect of the proposed projects subject to the directions issued by the Tribunal as above obtaining necessary environmental clearance and consent for establishment as the case may from the authorities.
4. It is made clear that the respondents/allottees Project proponents who require environmental clearance and consent for establishment under the provisions of the environmental enactments are restrained from carrying out any activity either constructional or otherwise without obtaining previous environmental clearance from MoEF and consent for establishment from KSPCB as the case may be.
5. In appraisement of the facts and circumstances narrated above, the Government of Karnataka is restrained from making any further allotment in Amrit Mahal Kaval lands in Chitradurga district to any one on any reason or for any purpose. 6. In addition to directions given under different heads at appropriate sections of the judgment, the specific directions to the MoEF, KSPCB and the Allottee Project Proponents which have got to be strictly complied with.
7. In so far as the other reliefs sought for by the applicants, it is held that they are premature and the applicants are given liberty to raise the contentions both legal and factual at necessary stages at appropriate forum as and when warranted.
8. Since the matter is related to environment and ecology, there is no room for compromise. Both MoEF and KSPCB are directed to strictly comply with the observations and also directions given to them at the time of grant of environmental clearance and or consent for establishment as the case may be from the respective authorities.
The applications are disposed of accordingly. No cost.
M/s. Scania Steels & Power Ltd. (formerly known as Sidhi Vinayak Sponge Iron Ltd.) was operating a Sponge Iron Plant in Village Punjipatra, Tehsil Gharghoda, District Raigarh in the State of Chhattisgarh, before 2004 i.e. prior to issuance of Environmental Impact Assessment (EIA) Notification, 2006. The production capacity of the said existing unit was 66,000 TPA of Sponge Iron (2 x 100 TPD kilns). In the year, 2008, M/s Scania Steels & Power Ltd. (hereinafter called as Scania for the sake of brevity) applied to the Ministry of Environment and Forest (in short MoEF) for expansion of the existing project. It proposed to enhance the production of Sponge Iron from 66,000 TPA to 1,32,000 TPA by adding another unit or 66,000 TPA, install a Steel Melting Shop (Induction Furnace, 3x15 tons) with CCM facility of 1,35,000 TPA capacity, a Ferro Alloy Plant (5MVA) of 7,5000 TPA and Captive Power Plant of 25 MW, (AFBC 17 MW + WHRB 8 MW). The proposal was considered by the MoEF and environment clearance (in short EC) was granted by letter dated 5th November, 2008 for the proposed expansion.
Jan Chetna (Appellant No.1) claiming to be a social and environmental group formed with the objective of working for the welfare of the local communities and creating awareness on social and environmental issues, represented through one or its Member Shri Ramesh Agrawal, and Shri Rajesh Tripathi claiming to be a Project affected person, having agriculture land adjacent to the project site and also claiming to be a social activist and a member of Jan Chetna, assailed the order dated 5th November, 2008, passed by the Ministry of Environment and Forests (MoEF) granting EC for expansion of the project in question before the then National Environment Appellate Authority (NEAA). The NEAA dismissed the Appeal. The said order was assailed by the present Appellant before the High Court of Delhi in WPC No.11157 of 2009, which set aside the order passed by NEAA and directed the said Authority to dispose of the Appeal on merits, as expeditiously as possible. While NEAA was in session of the case, The NGT Act was promulgated and in consonance with the provisions of the said Act, the Appeal stood transferred to this Tribunal.
The learned judges heard the counsel for the parties at length; perused the pleadings, documents annexed by the parties and notes of submissions, meticulously; and considered the submissions of all the Learned Counsel diligently. The controversies involved in this Appeal are as follows:-
i) Whether the Appellants have locus-standi to prefer the Appeal and assail the EC granted in favour of M/s. Scania Steels & Power Ltd. (Respondent No. 3)?
ii) Whether the proposal submitted to enhance the production of existing Sponge Iron Unit from 66,000 TPA to further 66,000 TPA by installing a new unit, setting up a Steel Melting Shop with CCM facility of 1,35,000 TPA capacity, a Ferro Alloy Plant of 7,500 TPA and Captive Power Plant of 25 MW, would amount to expansion of the existing Sponge Iron Plant of 66,000 TPA established prior to 2004 or amounts to installing new projects?
iii) As to whether the proposal satisfies the requirement of Clause-7(ii) of EIA Notification, 2006 and Public Hearing / consultation can be exempted?
iv) Whether the Authorities have duly applied their mind to the facts and circumstances, the scientific data and other particulars submitted by the Project Proponent, and the decision taken to grant EC was justified or proper?
Before entering into the area of controversy, the learned judges recapitulate the principles relating to Industrial Development vis-Ã -vis sustainable development. It is now well settled by a series of judgments of the Supreme Court that though the industrial development is of vital importance to the country as it generates foreign exchange and provides employment avenues, it has no right to destroy the ecology, degrade the environment and pose health hazards. In view of the constitutional and statutory provisions (as mentioned in the original judgement), the Court held that "Precautionary Principle" and the "Polluter Pays Principle" are part of the environment law of the country.
The expression "aggrieved persons" cannot be considered in a restricted manner. The Tribunal has no hesitation to hold that that the Appellants satisfy the definition of "Person aggrieved" and they have locus-standi to file this Appeal.
A cumulative reading of the provisions of EIA Notifications, 2006 in the touch stone of the principles laid down by the Hon'ble Supreme court in different decisions, gives an impression that public consultations as incorporated in 2006 Notification is in recognition and in furtherance of the rights to the environment. Public consultations ordinarily have two components; (i) public hearing at the site or in its close proximity and (ii) to obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity.
The wording of Clause 7(ii) is very clear and is bereft of any ambiguity. It stipulates that all applications seeking prior environmental clearance for expansion, with increase in the production capacity beyond the capacity for which Prior Environmental Clearance has been granted under this Notification, or with increase either in lease area or production capacity etc. etc., would attract the exclusion of Public consultation. In the case in hand, the production capacity of an existing Sponge Iron Unit is sought to be enhanced, and its production capacity increased, but then no environmental clearance has been granted to the said existing Sponge Iron Unit, under EIA Notification, 2006, thus the concession not to hold public consultation cannot be extended to the expansion of the existing Sponge Iron Unit. Furthermore, all the proposed units being interlinked and dependent on one another, and as no unit can be established in the absence of the other, the learned judges are of the view that the decision taken to exempt Public Consultation to the entire project under Clause 7(ii) of the EIA Notification, 2006, was not just and proper specially due to significant increase in pollution load and consequential environmental ramifications. Considering the magnitude of the proposed project, they further feel that the public in general should have given an opportunity of putting forth their views with regard to the projects.
In view of the infirmities noticed during the course of hearing, the MoEF is directed to develop appropriate mechanism, to check the authenticity of environmental data reported in the EIA/EMP report which would facilitate a more realistic environmental appraisal of project. Steps should also be taken for black listing Consultants found to have reported "cooked data" or "wrong data" and for producing sub-standard EIA/EMP report.
Strict reading of Clause 7(ii) of EIA Notification, 2006 clearly provides power to EAC or State Level EAC to decide on due diligence necessary including preparation of EIA and Public Consultations only for those expansion proposals or modernization of existing units, which were accorded prior environmental clearance, under this Notification (EIA Notification, 2006). In the present case, as has been held, neither exemption from Public Consultation is applicable under expansion category nor under modernization pretext as the expansion proposal of M/s Scania Steel and Power Ltd., which is an existing Sponge Iron Plant, was not accorded prior environmental clearance under the EIA Notification, 2006. It also does not satisfy the category of modernization of the existing unit, as a number of new facilities such as Induction Furnace, Ferro Allow Plant and Captive Power Plant have been proposed to be added which would certainly result in additional pollution load in the area. The legislators, while framing Clause 7(ii) of EIA Notification, 2006, might have kept in mind that if Public Consultation has already been done earlier under EIA Notification, 2006 while giving prior EC, the same Public Hearing (in short PH) need not be required again at the time of expansion or modernization of unit.
Only because, the authorities have exempted Public Consultation in respect of some other projects, cannot be ground for exempting the same so far as Scania is concerned. Law is well settled that each case has to be determined and decided in consonance with the facts and circumstances relating to the said case and there cannot be a universal decision to either conduct or exempt public hearing while granting EC.
In view of the discussions made in the preceding paragraphs, the MoEF is directed to get public consultation (Public Hearing) conducted for the proposed projects at the site or nearby area of the site as per the provisions contained in the EIA Notification, 2006. This direction is necessary in order to achieve the object and purpose of the Notification 31 vis-a-vis the Statute. Till the aforesaid exercise is completed, the EC granted on 5th November, 2008 for the proposed expansion of Integrated Steel Plant and Captive Power Plant at Village Kunjipatra, District Raigarh, Chhattisgarh by M/s. Scania Steel and Power Limited, shall remain suspended. It is needless to say that the MoEF shall take prompt steps for completing the exercise of public consultation (Public Hearing) and curing the deficiency in EIA/EMP, and re-visit the entire project in the light of the observations made by this Tribunal and complete the entire exercise as expeditiously as possible. It is needless to be said that the EC granted would be subject to the decision to be taken by the MoEF after public consultation, and other directions.
The Appeal is allowed in part.
India's National Green Tribunal (NGT) was granted jurisdiction by a 2010 statute "over all civil cases where a substantial question relating to environment ... is involved and such question arises out of [one or more of seven environmental protection statutes enacted between 1974 and 2002]." The 2010 NGT Act empowers the NGT to initiate cases as well as order various remedies in those cases. In this case, the NGT did both: no party brought the case and the NGT ordered authorities in Himachal Pradesh to undertake several measures to remediate various environmental harms identified by consulting experts engaged by the NGT. The fundamental legal basis for the NGT's decision is India's constitution, and article 21 in particular, which, the NGT explained, has been interpreted by statutes and judicial decisions as providing for a fundamental right to what the NGT calls a "wholesome, clean, decent environment." The NGT concluded that the government of Himachal Pradesh had violated its obligations under article 21 (as well as articles 48A and 51A) by failing to restrict development and road and pedestrian traffic in and around the increasingly touristed area accessible via the Rohatang Pass. Melting of regional glaciers and deforestation led the list of environmental impacts noted by the NGT, which identified the emission of black carbon from vehicle traffic as a chief cause of the melting. The NGT drew two linkages between these findings and global warming: first, that global warming heightens the need to take protective measures of a region sensitive to emissions and deforestation; and second, that "there is a need to tackle global warming" in order to avert the sort of environmental degradation at issue in the case. Although the NGT described how greenhouse gas emissions cause global warming, and affirmed the applicability of the "polluter pays" principle to the respondents in this case, the NGT did not assign Himachal Pradesh responsibility for mitigating global warming per se. It did, however, order the government of Himachal Pradesh to impose a host of restrictions on traffic and to undertake a program of reforestation, both of which would be overseen by a Monitoring Committee that would make quarterly reports to the NGT.
Ridhima Pandey, a nine-year-old from the Uttarakhand region, is the named plaintiff in a climate change case filed in March 2017 with the National Green Tribunal of India. Plaintiff's petition argues that the Public Trust Doctrine, India's commitments under the Paris Agreement, and India's existing environmental laws and climate-related policies oblige greater action to mitigate climate change. It also argues that the term "environment," as used in the Environment (Protection) Act 1986, necessarily encompasses the climate. The case was brought pursuant to section 2(m) of the National Green Tribunal Act 2010, which authorizes claims that raise "a substantial question relating to the environment." In addition to those legal provisions, the petition cites the principles of sustainable development, precaution, and intergenerational equity, as well as judicial decisions based on similar legal principles in the Netherlands (Urgenda Foundation v. Kingdom of the Netherlands), Pakistan, (Leghari v. Pakistan), and the U.S. (Juliana v. United States).
The petition notes that India is the third-largest national emitter of greenhouse gases (behind China and the U.S.) and among those countries that are most susceptible to adverse climate change impacts. It identifies 1º degree Celsius or 350ppm of atmospheric carbon dioxide as the critical pair of thresholds for India (and the world) to avoid exceeding for the sake of avoiding severe climatic changes' facts described in the petition as rooted in "[t]he best climate science." To remedy the alleged injury to the present and future climate, the petition asks the court to order the national government to undertake a variety of measures, including but not limited to inclusion of climate change in the issues considered by environmental impact assessments, preparation of a national greenhouse gas emissions inventory, and preparation of a national carbon budget against which particular projects' emissions impacts can be assessed.