WP (C) No.9317/2009 Page 1 of 38 * HIGH COURT OF DELHI : NEW DELHI + Writ Petition (Civil) No. 9317 of 2009 Judgment reserved on: March 23, 2010 % Judgment delivered on: May 28, 2010 1. Samarth Trust a Registered Trust working for public good as a Non Governmental Organization (NGO) having its Central Office at H-136, Shiv Durga Vihar Lakkarpur, Faridabad – 121009 through its General Secretary Shri Manish Manjul. 2. Shri Dutta Kinkar Joshi An environmentally aware public spirited citizen Son of Shri Laxman Chandra Joshi Resident of House No.1, Keshav Kutir Shivaji Nagar, Post Pashulok Rishikesh, Uttrakhand. … Petitioners Through Mr.Sunil Gupta, Sr. Advocate with Mr.Jatinder Sethi, Mr.Sanjay Abbot, and Mr.Tanmaya Agarwal, Advs. Mr.Sanjay Parikh, Amicus Curiae. Versus 1. Union of India Ministry of Environment and Forests Paryavaran Bhawan, C.G.O. Complex Lodhi Road New Delhi – 110 003 through its Secretary. WP (C) No.9317/2009 Page 2 of 38 2. State of Uttarakhand Civil Secretariat Dehradun Through the Principal Secretary. 3. Uttarakhand Environment Protection and Pollution Control Board 6, Vasant Vihar Phase Two Dehradun Through its Member Secretary. 4. State Industrial Development Authority State of Uttarakhand, Dehradun Through its Secretary. 5. Haridwar Development Authority, Haridwar Through its Vice Chairman. 6. District Magistrate District Haridwar. 7. Central Vigilance Commission Satarkta Bhavan, G.P.O. Complex Block A, I.N.A. New Delhi. Through its Secretary. 8. M/s Aqua Infra Projects Ltd. Having its Registered Office at 5th Floor, The Mile Stone Gandhi Nagar Crossing Bapu Nagar, Tonk Road Jaipur – 302 015. Through the Chairman. 9. Asbestos Cement Products Manufacturers’ Association 501, Laxmi Bhavan 72, Nehru Place New Delhi – 110 019. Through the Chairman. … Respondents WP (C) No.9317/2009 Page 3 of 38 Through Mr.Ankur Chhibber, Adv. for R-1 Mr.Vivek Vishnoi with Mr.Mukesh Verma, Advs. for R-3 Mr.Dushyant Dave, Sr. Advocate with Mr.Ramesh Singh & Mr.Pankaj Jain & Mr.Amit, Advs. for R-8 Ms.Rashmi Virmani with Mr.Ashish Kothari, Advs. for R-9 Coram: HON'BLE MR. JUSTICE MADAN B. LOKUR HON'BLE MS. JUSTICE MUKTA GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MADAN B. LOKUR, J. The questions for our consideration are culled out from two orders passed by this Court on 14th September, 2009 and on 27th January, 2010. The two questions are: a. What is the nature, scope and methodology of a public hearing held in accordance with the notification dated 14th September, 2006 issued by the Ministry of Environment and Forests (for short MOEF). It naturally follows from this question whether the public hearing conducted in the present case conformed to the nature, scope and methodology as postulated. WP (C) No.9317/2009 Page 4 of 38 Our answer to the consequential question is in the affirmative. b. Whether the Petitioner (Samarth) has filed this writ petition as a bona fide public interest litigant. In view of our above conclusion, we do not propose to answer this question. 2. The two orders dated 14th September, 2009 and 27th January, 2010 read as follows: “14th September, 2009 Amongst other issues, two issues of general public importance arise for consideration in the present writ petition, namely, the nature, scope and methodology of public hearing that has to be held in accordance with the MOEF’s Notification dated 14th September, 2006 and whether units manufacturing asbestos based products should be allowed to function in view of the fact that asbestos has been banned in several countries on the ground that it is a hazardous product. However, as in the present case respondents have seriously challenged the locus/motive of the writ petitioner, we deem it appropriate to appoint Mr. Sanjay Parikh, Advocate as Amicus Curiae to assist this Court. The Registry is directed to communicate this order to Mr. Sanjay Parikh at 102, New Lawyers Chamber, Supreme Court of India, New Delhi. Mr. J.K. Sethi, learned counsel for petitioner is also directed to furnish a copy of entire paper book to Mr. Sanjay Parikh within a period of one week from today. WP (C) No.9317/2009 Page 5 of 38 List for further hearing on 21st October, 2009. 27th January, 2010 Learned senior counsel appearing for the petitioner and Mr. Sanjay Parikh state that they will confine arguments on the issue of the public hearing and on the other related issues and therefore the hearing need not be postponed on account of the pendency of the writ petition in the matter of Kalyaneshwari v. UOI, WP(C) No. 260/2004 before the Supreme Court. We are inclined to accede to this request and hear the matter on the limited issues. Adjourned to 17th February, 2010.” 3. The question “whether units manufacturing asbestos based products should be allowed to function in view of the fact that asbestos has been banned in several countries on the ground that it is a hazardous product” was not pressed since it is already pending in the Supreme Court in Kalyaneshwari v. Union of India, WP(C) No. 260/2004. Background facts: 4. On 7th January, 2003 the Government of India, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion) issued an Office Memorandum on the New Industrial Policy and Other Concessions for the States of Uttaranchal and Himachal Pradesh. The Memorandum states that the Prime Minister, during a visit WP (C) No.9317/2009 Page 6 of 38 to the State of Uttaranchal from 29th to 31st March, 2003 announced that tax and central excise concessions to attract investments in the industrial sector would be worked out for special category States including Uttaranchal. The industries eligible for such incentives should be environment friendly with a potential of local employment generation and use of local resources. The importance of this Office Memorandum is only that Respondent No.8 [Aqua Infra Projects Ltd. (for short Aqua)] apparently decided to establish an industry in the State of Uttaranchal (now Uttarakhand) in view thereof. 5. On 18th May, 2006 the Union Cabinet approved the National Environment Policy and pursuant thereto, a Notification was issued by the Central Government on 14th September, 2006. This Notification was issued in exercise of power conferred by Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986. The Notification states, inter alia, that construction of new projects listed in the Schedule thereto shall be undertaken only after prior environmental clearance from the Central Government or the State level Environment Impact Assessment Authority, as the case may be. There is no dispute that the asbestos WP (C) No.9317/2009 Page 7 of 38 based project that we are concerned with requires prior environmental clearance from the Central Government. 6. The Notification further goes on to provide a four-stage process before environmental clearance is granted. The four stages are screening, scoping, public consultation and appraisal. In view of the questions framed, we are concerned only with a part of the public consultation aspect. We are not concerned with the screening, scoping or appraisal of the project proposed by Aqua. 7. Scoping refers to the process by which an Expert Appraisal Committee (for short EAC) determines detailed and comprehensive Terms Of Reference (TOR) addressing all environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought. 8. As mentioned above, apparently with a view to take advantage of the incentives offered by the Office Memorandum dated 7th January, 2003 Aqua applied to the Ministry of Environment and Forests WP (C) No.9317/2009 Page 8 of 38 (MOEF) on 23rd October, 2007 for grant of environmental clearance for setting up a unit for the manufacture of asbestos cement products and fiber reinforced plastic products. It was proposed to set up the unit in Village Akbarpur Urd, Tehsil Laksar, District Haridwar in Uttarakhand. 9. In terms of the scoping requirements of the Notification dated 14th September, 2006 the EAC in its 78th meeting held between 20th and 22nd February, 2008 considered the proposal put forward by Aqua. The TORs were then finalized and spelt out for the preparation of a draft EIA / Environment Management Report so that a meaningful public consultation could take place. Public consultation: 10. A public consultation in terms of the Notification dated 14th September, 2006 consists of two parts. They are: - (a) A public hearing at the site or in its close proximity – district wise, to be carried out for ascertaining the concerns of local affected persons; and (b) Obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity. WP (C) No.9317/2009 Page 9 of 38 As stated in the earlier orders passed by this Court adverted to above, we are concerned only with the first part of the public consultation, that is, a public hearing. It is necessary to clarify and reiterate this because we were often invited to go beyond the brief, as it were. 11. From the terms of the Notification dated 14th September, 2006 it seems, prima facie, that so far as a public hearing is concerned, its scope is limited and confined to those locally affected persons residing in the close proximity of the project site. However, in our opinion, the Notification does not preclude or prohibit persons not living in the close proximity of the project site from participating in the public hearing – they too are permitted to participate and express their views for or against the project. 12. The Notification requires that the public hearing be conducted by the State Pollution Control Board (or the Union Territory Pollution Control Board, as the case may be) in the manner specified in Appendix IV thereto. Thereafter, the State Pollution Control Board is required to forward the proceedings of the public hearing to the concerned Regulatory Authority within 45 days of a request to that WP (C) No.9317/2009 Page 10 of 38 effect from the project proponent. The Notification provides that in case the State Pollution Control Board comes to the conclusion that due to the local situation it is not possible to conduct a public hearing in a manner that may elicit the views of the concerned local persons to be freely expressed, a report in this regard shall be submitted to the concerned Regulatory Authority. Thereafter, the concerned Regulatory Authority may decide that public consultation need not include a public hearing. 13. The second aspect of the public consultation, as already mentioned above, is obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity. If this is contrasted with a public hearing (which is confined to locally affected persons in the close proximity of the project site) then it appears, prima facie, that the responses are required to be invited from persons not necessarily in the close vicinity of the project site (and therefore at a distance). A condition attached to this is that those persons should have a plausible stake in the environmental aspects of the project or activity. It is not clear who determines (and how) whether or not a person has a “plausible stake” in WP (C) No.9317/2009 Page 11 of 38 the environmental aspects of the project or activity. However, since we are not concerned with this aspect of the public consultation, we need not delve into this issue. 14. It must be clearly understood that while the above provisions for public consultation postulate the physical presence of locally affected persons at a public hearing, they are not barred from giving their responses in writing to the concerned authorities involved in the public consultation process, even though they may not have attended the public hearing. Nor, for that matter, do the provisions of the Notification preclude persons at a distance from attending a public hearing. Public hearing requirements: 15. As mentioned above, Appendix IV to the Notification dated 14th September, 2006 provides the procedure for conducting a public hearing. The process includes several important features. They are: a. Documentation: 1. Preparation by the project proponent of a draft EIA Report including a Summary EIA Report in English as well as in the local language WP (C) No.9317/2009 Page 12 of 38 strictly in accordance with the TORs communicated in the scoping stage. 2. Copies of these documents are required to be furnished to the District Magistrate, the Zila Parishad or the Municipal Corporation, District Industries Office and the concerned Regional Office of the MOEF. b. Publicity: 1. The draft EIA Report shall be widely publicized so that interested persons may send their comments to the concerned Regulatory Authority. 2. The summary of the draft EIA Report shall be displayed by the MOEF on its website so that those who have a plausible stake in the environmental aspects of the project or activity may offer their comments. c. Notice: A notice of the public hearing is required to be given in a major national daily and one regional vernacular daily at least 30 days in advance of the date of the public hearing. This would give adequate time to all concerned persons to offer their comments and suggestions on the proposed project. WP (C) No.9317/2009 Page 13 of 38 d. Supervision: 1. The public hearing shall be supervised and presided over by the District Magistrate or his representative not below the rank of an Additional District Magistrate. The Presiding Officer is required to be assisted by a representative of the State Pollution Control Board. 2. The entire proceedings of the public hearing are required to be video- graphed for which arrangements shall be made by the State Pollution Control Board. 3. The video recording of the public hearing should be submitted to the concerned Regulatory Authority along with the Minutes of the proceedings. 4. The proceedings at the public hearing do not require a quorum for attendance but the presence of all those at the venue is required to be noted. e. Actual hearing: 1. A representative of the project proponent shall initiate the proceedings by a presentation on the project and the summary EIA Report. 2. The persons present at the venue must be granted an opportunity to seek information or clarifications on the project from the project WP (C) No.9317/2009 Page 14 of 38 proponent. 3. A summary of the views and concerns expressed in the public hearing are required to be read over to the audience and explained in the vernacular language. f. Post public hearing: 1. The agreed Minutes of the public hearing shall be prepared and signed by the District Magistrate or his representative on the same day and forwarded to the State Pollution Control Board. A statement of issues raised by the public (both written and oral) and the comments of the project proponent are required to be annexed to the proceedings. 2. The statement of issues raised by the public and the comments of the applicant are required to be conspicuously displayed in the office of the Panchayat within whose jurisdiction the project is located, the office of the concerned Zila Parishad, the District Magistrate and the State Pollution Control Board as well as on the website of the State Pollution Control Board. g. Miscellaneous: 1. The public hearing is required to be completed within a period of 45 days from the date of receipt of a request from the project proponent. 2. The papers relating to the public hearing shall be sent to the WP (C) No.9317/2009 Page 15 of 38 concerned Regulatory Authority within 8 days of completion of the public hearing. 16. In our opinion, on going through the above requirements of a public hearing, it is quite clear that it is intended to solicit views, comments and suggestions from the locally affected persons or persons in the vicinity of the project, that is, the local populace. 17. What is the purpose of a public hearing? Can largely rural people effectively articulate their concerns on (sometimes) complex environmental issues? Is a public hearing a procedural formality – motions that have to be gone through because of legal requirements? A public hearing is a form of participatory justice giving a voice to the voiceless (particularly to those who have no immediate access to courts) and a place and occasion to them to express their views with regard to a project. Participatory justice is in the nature of a Jan Sunwai where the community is the jury. Such a public hearing gives an opportunity to the people to raise issues pertaining to the social impact and the health impact of a proposed project. Since a public hearing affects the rights of the parties, it must be conducted in a formal or at least in a semi-formal WP (C) No.9317/2009 Page 16 of 38 manner and the video-recording as well as the Minutes of the proceedings must be faithful to what has actually transpired so that the views of the participants are known. The advantage of a public hearing is that it brings about transparency in a proposed project and thereby gives information to the community about the project; there is consultation with the affected parties and they are not only taken into confidence about the nature of the project but are given an opportunity to express their informed opinion for or against the project. This form of a social audit, as it were, provides wherever necessary, social acceptability to a project and also gives an opportunity to the EAC to get information about a project that may not be disclosed to it or may be concealed by the project proponent. Public hearing guidelines: 18. Therefore, taking the nature and scope of a public hearing into consideration, as mentioned above, the following requirements are necessary by way of laying down ground rules or providing a methodology for conducting a meaningful and purposive public hearing: (a) Adequate notice must be given to all the concerned parties: In our opinion, adequate notice has three vital components. WP (C) No.9317/2009 Page 17 of 38 They are adequate time for preparation, adequate publicity for the benefit of all concerned and availability of all relevant information. The reason for this is that if adequate time is not given for the preparation of views, comments and suggestions to those participating in the public hearing, that public hearing may not be meaningful enough. In Canara Bank v. Debasis Das, (2003) 4 SCC 557 the Supreme Court noted (though in a different context) that time for making a representation should be adequate and that this is a facet of natural justice. Similarly, it is absolutely necessary that due publicity must be given to the public hearing so that the locally affected persons can participate in large numbers and voice their views. In the absence of adequate publicity, interested persons may remain unaware of the project and of the importance of either supporting or opposing it. Finally, unless all necessary information is available, no effective public hearing can be conceived by the locally affected persons. Looked at from another point of view, if the draft EIA or its summary is not WP (C) No.9317/2009 Page 18 of 38 available to the local populace, their participation in the public hearing will be nothing but a farce. (b) A panel must be available to conduct the public hearing in a disciplined manner: A District Magistrate or if he is not available, then his representative not below the rank of an Additional District Magistrate must preside over and supervise the public hearing. He should be assisted by a representative of the State Pollution Control Board, who can provide impartial technical inputs, if necessary. The necessity of their presence is to ensure that the public hearing does not go out of control for if it does, then it may be scrapped if a report is given to the concerned Regulatory Authority that it is not practicable to hold a public hearing. Therefore, it is absolutely necessary for the participants to maintain discipline during the course of the public hearing otherwise they will lose an opportunity to express their views with regard to the project and it is the duty of the Presiding Officer of the public hearing to ensure this. (c) A faithful record of the views expressed must be maintained: A public hearing naturally postulates that both immediately preceding the date of hearing and during the hearing itself, the concerned authorities may receive written representations. They WP (C) No.9317/2009 Page 19 of 38 need to be compiled and tabulated in the form of a chart so that all the concerns expressed may be addressed by the project proponent. It is more than likely that at the public hearing oral representations will be made and it is for this reason that there must be a faithful video- recording of the proceedings and a faithful recording of the Minutes so that the views that are orally expressed can also be compiled and dealt with by the project proponent and the EAC. The representations, whether written or oral, serve as a social audit of the project and must be given the due importance and seriousness that they deserve. (d) The public hearing must be fair to all participants: There can be no doubt that a public hearing must be fair. This necessarily postulates that those who support the project should not be shouted down by those who oppose the project and vice versa. The whole purpose of a public hearing would be lost if a free and frank expression of views is stymied by a handful holding a particular viewpoint. The Supreme Court has said in Biecco Lawrie Ltd. v. State of West Bengal, (2009) 10 SCC 32 that a proper hearing takes within its ambit a fair opportunity to express views. In a sense, this is an important aspect of natural justice. (e) Structured public hearing: Since the public hearing may be WP (C) No.9317/2009 Page 20 of 38 quite prolonged depending on the number of speakers, in our opinion, it is absolutely necessary to structure the public hearing. It would be advisable if the District Magistrate collects information a day before of the number of speakers and makes a list of speakers at the public hearing and how long they propose to speak. This is necessary for otherwise, the proceedings may be hijacked by local leaders who may have political or other considerations on their mind rather than environmental considerations. We are of the view that these broad procedures (which are certainly not exhaustive) must be followed for conducting a meaningful and effective public hearing postulated by the Notification dated 14th September, 2006. Discussion of facts 19. Insofar as the facts of the present case are concerned, what we are required to consider is whether the public hearing conformed to the nature, scope and methodology mentioned above 20. Learned Amicus Curiae pointed out that the draft EIA as well WP (C) No.9317/2009 Page 21 of 38 as the summary EIA Report was not placed on the website of the State Pollution Control Board. According to him, this would vitiate the public hearing. It is true that there is a requirement of adequate notice of a public hearing being given. This is to enable persons who have a plausible stake in the environmental aspects of the project or the ability to attend or otherwise substantively contribute in the public hearing by educating the local populace about the project or activity. Therefore, if the website of the State Pollution Control Board does not carry relevant information about the project or activity for which a public hearing is contemplated, it may amount to giving inadequate notice to the local populace, thereby vitiating the public hearing. 21. We find from a perusal of a writ petition filed by Samarth that there is no averment to the effect that the requirement of placing relevant information on the website of the State Pollution Control Board