LPA 277/2009 Page 1 of 17 * IN THE HIGH COURT OF DELHI AT NEW DELHI 11. + LPA 277/2009 % Decided on : 14th September, 2009 VEDANTA ALUMINA LTD. ..... Appellant Through: Dr. A.M. Singhvi, Sr. Adv. with Mr. P.C. Sen, Mr. Pallav Kumar Singh, Mr. Nitin Dahiya, Advocates Versus PRAFULLA SAMANTRA & ORS. ..... Respondents Through: Mr. Sanjay Parekh, Mr. Ritwick Dutta, Mr. Rahul Chawdhary, Advocates for R-1 Mr. A.S. Chandhiok, ASG with Ms. Sweta Kakkad, Ms. Dimple Murria, Advocates for R-2/MoEF Mr. J.R. Das, Mr. P.P. Nayak, Advs. for R-3/OPCB CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether Reporters of local papers may be allowed to see the judgment?y 2. To be referred to the Reporter or not? y 3. Whether the judgment should be reported in Digest? y Ajit Prakash Shah, Chief Justice (Oral) :- The question that falls for consideration in this appeal is whether the first respondent (original writ petitioner) is a “person aggrieved” to maintain an appeal before the National Environment Appellate Authority (hereinafter referred to as the „Authority‟) under Section 11 of the National Environment Authority Act, 1999 (hereinafter referred to as „the Act‟). 2. The circumstances giving rise to this appeal are as follows: The first respondent claims to be a social and environmental activist involved in issues concerning tribals and environment and also is the President of the Orissa Unit of the Lok Shakti Abhiyan, an organization dedicated to social and environmental causes. It is claimed that together with his group, he has been closely following the environmental issues in Brundamal and Bhurkamunda, District Jharsuguda, Orissa and is LPA 277/2009 Page 2 of 17 working among the affected communities. 3. The second respondent, i.e. the Orissa State Pollution Control Board announced a public hearing on 20th October, 2005 for a proposed aluminum smelter plant under the provisions of the Environment Impact Assessment (EIA) Notification, 1994. The first respondent objected to the public hearing on the ground that this is not a separate project but the third stage of a Bauxite Mining Project. The public hearing was cancelled and re-scheduled for a later date on 09.12.2005. The first respondent made another representation challenging the faulty EIA of the project on 9.12.2005, inter alia stating the following: “The Public Hearing for this Aluminum Smelter, an integral part of Vedanta‟s bauxite miming, alumina refinery and aluminum smelting project which is currently sub judice is legally wrong. State Pollution Control Board is going ahead with the Public Hearing without taking into account the recommendations of the Central Empowerment Committee to the Supreme Court of India which show that Vedanta has violated forest and conservation laws. It may be recalled that the CEC in its recommendation to the Apex Court had asked for the withdrawal of the environmental clearance to the alumina refinery plant located in Lanjigarh and strictly recommended not to give the Niyamgiri Hills for bauxite mining to the company. The three phases of an aluminum plant involves necessarily the first step of having captive bauxite mining which would provide raw material for the second step that is the alumina refinery that in turn will be supplied to aluminum smelter in the third step. The following situation prevails with regard to the above three steps, which are essentially part of the same project. 1. Bauxite mine: License for mining not granted. The CEC says “It is of considered view that the use of the forest land in an ecologically sensitive area like Niyamgiri Hills should not be permitted (para 32, page 52)” and again the CEC says “The project may only be considered after an alternative bauxite mine site is identified (para 33, page 53)” 2. Aluminum refinery: The observation of the CEC is significant on the alumina plant when it says “The casual approach, lackadaisical manner and the haste with which the entire issues of the forests and environmental clearance for the alumina refinery project has been dealt with smacks of undue favour/leniency and does not inspire confidence with regard to the willingness and resolve of both the state government and the MoEF to deal with such matters keeping in view the ultimate goal of national and public interest. In the instant case had a proper study been conducted before embarking on a project of this nature and magnitude involving massive investment, the objections to this project from environmental/ ecological/ forest angle would have LPA 277/2009 Page 3 of 17 become known in the beginning itself and in all probability the project would have been abandoned at this site” (para 32, page 52). The CEC further states that “keeping in view all the facts and circumstances brought out in the preceding paragraphs it is recommended that this honourable court may consider revoking the environmental clearance dated 22.9.2004 granted by the MoEF for setting up of Alumina refinery plant by M/s Vedanta and directing them to stop work on the project (para 33, page 53)” In the EIA of this project it has been mentioned in page 27, point 2.3.1 that the proposed aluminum smelter plant will receive alumina from the alumina refinery at Lanjigarh, Kalahandi district of Orissa which is about 240 kms away from the smelter plant. So public hearing of for an aluminum smelter whose raw material is planned to be drawn from sub judice Lanjigarh refinery is completely contingent on the orders of the Honourable Supreme Court on the Lanjigarh Alumina Refinery. By holding a public hearing on the aluminum smelter, the Orissa State Pollution Control Board is exceeding its brief and disrespecting the Honourable Supreme Court. Therefore, you are requested to kindly consider this public hearing on 9th December, 2005 null and void.” 4. It is also the case of the first respondent that the appellant illegally started construction work for its proposed aluminum smelter plant at Brindamal, Jharsuguda, Orissa without obtaining the mandatory environmental clearance and, therefore, he again objected before the second respondent by his letter dated 5.6.2006; the receipt of the said communication is not denied by the second respondent. By its letter dated 8.2.2007, the second respondent directed the appellant to stop all construction activities till the appellant obtains environmental clearance from the MoEF. 5. The environmental clearance for the project was granted on 7.3.2007 and aggrieved by this, the first respondent filed an appeal before the Authority on 5.4.2007. The Authority, by an order dated 29.1.2008, dismissed his appeal stating that first respondent is not a “person aggrieved” under Section 11 of the Act. The relevant paragraphs of the impugned order are extracted hereunder: “6. The point for decision at this stage is whether he appellant is eligible to file the appeal in this case. The appellant has submitted that he has filed this appeal in his personal capacity as President of Lok Shakti Abhiyan, Orissa Unit. Let us see how the appellant qualifies to file this Appeal. 7. Section 11(1) of the NEAA Act, 1997 clearly prescribes two conditions for eliginilty of any person to file an appeal:- LPA 277/2009 Page 4 of 17 (a) He should be a person aggrieved by the environmental clearance order. (b) He should file appeal with stipulated time. 7.1 The term person, as defined under Section 11(2) of the NEAA Act, 1997, is shown below- (a) any person who is likely to be affected by the grant of Environmental Clearances; (b) any person who owns or has control over the project with respect to which an application has been submitted for environmental clearances; (c) any association of persons (whether incorporated or not) likely to be affected by such order and functioning in the field of environment ; (d) the Central Government, where the environmental clearance is granted by the State Government and the State Government where the environmental clearance has been granted by the Central Government; or (e) any local authority, any part of whose local limits is within the neighbourhood of the area wherein the project is proposed to be located. 7.2 In light of the above, the Appellant is not an aggrieved person under the clause (b), (c), (d) and (e) of Section 11(2) of the NEAA Act, 1997 narrowing down the scope to clause (a) of this Section. The Appellant has however sought to take advantage of clause (a) of this section by claiming that he is a social and environmental activist involved in the issues concerning the tribals as well as the environment. He submitted that he has filed this appeal as president of Lok Shakti Abhiyan. He and his group has been closely working among the affected communities of Brundamanl & Bhurkhamunda District, Jharsuguda, Orissa on the issues of development. 8. While his representations to the Orissa State Pollution Control Board and other on faulty Environmental Impact Assessment Report, postponement of Public Hearing and not attending the Public Hearing on personal reasons is not disputed, we could not find him affected in any manner so as to satisfy the criteria laid down for “person aggrieved” in the judgment of Supreme Court in the case of Thammanna V. K. Veera Reddy and Ors. as reported at para 16 of (1980) 4 Supreme Court Cases 62. 9. Having perused all the submissions and the documents filed by the Appellant, the Respondent, the Authority finds that the Appellant is not qualified to file this Appeal under clause (a) of the Section 11(2) of the NEAA, Act 1997. The Appeal is accordingly not admitted.” 6. Aggrieved by the order of the Authority, the petitioner preferred a writ petition being CWP No. 3126/2008. The writ petition was allowed by S. Ravindra Bhat, J. by the order under appeal. S. Ravindra Bhat, J., on a detailed analysis of the scheme and LPA 277/2009 Page 5 of 17 provisions of the Act, came to the conclusion that first respondent has the locus standi to maintain an appeal before the Authority. The learned Judge observed: “16. ……the expression “person aggrieved” has to be given a panoptic import and be understood to include persons like the petitioner who display interest in social and environmental causes. This is established by the fact that his organization was closely following the issue of setting up of aluminum smelter plant during various stages of the project to the extent that it had, on two occasions objected to the holding of the „public hearing‟ and sent a detailed letter elucidating the objections and further when it learnt about alleged unauthorized construction at the project site, he wrote to the second respondent, which later directed the third respondent to stop such activities. 17. …..In the impugned order the Authority acknowledged that the petitioner had on several occasions in the past made representations before the Orissa State Pollution Control Board challenging the holding of public hearing and that the petitioner could not attend the hearing due to personal reasons. Public hearings, in such cases, are organized to elicit comments from the members of public before granting clearance to a project in order to assess the nature of environmental damage, if any, due to the likely execution of project and its impact on the rights of inhabitants and the persons who depend on that area for livelihood or otherwise. A person who participates in the public hearing, and thus in the process of decision-making, potentially becomes an aggrieved person if his grievances are not properly addressed. The petitioner, though not participating in the public hearing, had presented his detailed objections before the second respondent against the holding of public hearing on the ground of faulty environmental impact assessment report. At one stage, his representations were found substantial by the authorities. Denial of the right to appeal would also lead to a highly incongruous situation whereby someone like him, allowed to participate in the principal decision making process, is denied the right to question the findings of the primary decision maker, in the appellate proceedings.” Consequently the impugned order of the Authority was quashed and the Authority was directed to entertain and dispose of the appeal of first respondent in accordance with law. 7. Dr. A.M. Singhvi, learned senior counsel appearing for the appellant, relying upon the decision in Thammanna V/s. K. Veera Reddy & Others, (1980) 4 SCC 62, emphasized that “a person aggrieved has to be a person with a legal grievance”. He submitted that in the instant case, it is not even the contention of the first respondent that he is representing any local population which is affected by the project. The first respondent is not even a local resident of the area. His only contention is that he is working among the affected communities. It is nowhere his case that any of the affected LPA 277/2009 Page 6 of 17 persons either asked him to appear on their behalf or raised any grievance to him about the project. Dr. Singhvi further submitted that Section 11(1) only gives locus to a person aggrieved to file an appeal. According to him the predominant purpose of Section 11 is the quick redressal of public grievances. In order to prevent the delays, the Act has circumscribed the kind of person who can file an appeal against the environmental clearance. If the objective of the statute was to allow appeals by anyone then instead of the phrase “person aggrieved”, the phrase “any person” would have been used. He submitted that a person not falling under the definition of „person aggrieved‟ under the Act can always approach the High Court by way of PIL under Article 226 of the Constitution of India or the Supreme Court under Article 32 of the Constitution of India. He also placed reliance on the decisions in Krishna Swami v. Union of India (1992) 4 SCC 605 and Regina v. Secretary of State For Environment, (1990) 2 WLR 187. 8. In reply, Mr. Sanjay Parekh, learned senior counsel appearing for the first respondent submitted that the question of locus of an individual in our country, as far as environment is concerned, rests in the public and constitutional law domain. Such public and constitutional right cannot be curtailed by any statutory enactment. Any action which affects the environment can be questioned by individual/individuals as a matter of right as well as duty. Mr. Parekh submitted that the decision of the Supreme Court in Thammanna V/s. K. Veera Reddy & Others (supra) relied upon by Dr. Singhvi has no application to the present case where the issues of environment have been raised. According to him, the expression “person” for the purpose of the Act is used in a wide manner and includes anyone likely to be affected by the grant of environment clearance. The use of the word „likely‟ in the Act, clearly establishes that there is no requirement to show a direct linkage between the activity proposed and the impact on the aggrieved person. He also referred to the Statement of Objects and Reasons of the Act which states that the necessity of setting up of National Environment Appellate Authority was due to Public Interest Litigations filed before the Supreme Court relating to environment and it was intended to provide quick redressal of public grievances, where the public could approach by means of petitions, complaints, representations or appeals. LPA 277/2009 Page 7 of 17 The submission of Mr. Parekh is that the first respondent is working in the area in question on the environmental issues and following up the issues of this project since beginning. The first respondent, though was not able to participate in the public hearing in person, but objections were sent by him to the project authorities and also to Pollution Control Board. Learned counsel further submitted that welfare statutes have to be interpreted in a manner which serves the interest of those whom they are intended to benefit. The protection of forests and the natural environment is a fundamental duty of every citizen under Article 51-A(g) of the Constitution. The Authority provides a forum for redressal of grievances on environmental issues and at the same time for those who are concerned about taking proactive measures to protect the environment. He submitted that it is settled law that courts should favour an interpretation that promotes the general purpose of an Act rather than one that does not. 9. Mr. Chandhiok, learned ASG appearing for the Ministry of Environment and Forest supported the interpretation of Section 11 by S. Ravindra Bhat, J. and also drew our attention to the decisions of the Supreme Court in Ghulam Qadir v. Special Tribunal & Others, (2002) 1 SCC 33 and N.D. Jayal v. Union of India & Ors., (2004) 9 SCC 362. 10. It is now well settled by a series of judgments of the Supreme Court that though the industrial development is of vital important 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 as a health hazard. In Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647, the Supreme Court held that the traditional concept that development and ecology are opposed to each other is no longer acceptable. “Sustainable Development” is the answer. In the international sphere, “Sustainable Development” as a concept came to be known for the first time in Stockholm Declaration of 1972. Thereafter in 1987, the concept was given a definite shape by the World Commission on Environment and Development in its report called “Our Common Future” popularly known as “Brundtland Report”. In 1991, the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, LPA 277/2009 Page 8 of 17 jointly came out with a document called "Caring for the Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio where as many as 153 nations signed two conventions, one on biological diversity and another on climate change. The delegates also approved by consensus three non-binding documents, namely, a Statement on Forestry Principles, a declaration of Principles on Environmental Policy and Development Initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. The Supreme Court noted that some of the salient principles of "Sustainable Development", as culled-out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. The Court noticed that Article 21 of the Constitution of India guarantees protection of life and personal liberty. The Court also noticed that Article 48A of the Constitution cast a duty on the State to protect and improve the environment and safeguard the forests and wild life of the country and Article 51A(g) of the Constitution spells out duty of citizens to protect and improve the environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. The Court also noted that apart from the constitutional mandate to protect and improve the environment, there are plenty of post independence legislations on the subject, namely, The Water (Prevention and Control of Pollution) Act, 1974, The Air (Prevention and Control of Pollution) Act, 1981 and the Environment Protection Act 1986. In view of the above mentioned constitutional and statutory provisions, the Court held that Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country. 10. In Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281, the Court noted that even though laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. Environment degradation is best protected by the people themselves. The following observations of the Court are relevant: LPA 277/2009 Page 9 of 17 “41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though, laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard to the mandatory provisions of law, some public spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the Courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The Courts, in a way, act as the guardian of the people's fundamental rights but in regard to many technical matters, the Courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though, it is not the function of the Court to see the day to day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the Courts as of necessity have had to pass orders directing the enforcement agencies to implement the law. …. …. …. 47. With increasing threat to the environmental degradation taking place in different parts of the country, it may not be possible for any single authority to effectively control the same. Environmental degradation is best protected by the people themselves. In this connection, some of the non-governmental organisations (NGOs) and other environmentalists are doing singular service. Time has perhaps come when the Government can usefully draw upon the resources of such NGOs to help and assist in the implementation of the laws relating to protection of environment. Under Section 3 of the Act, the Central Government has the power to constitute one or more authorities for the purposes of exercising and performing such powers and functions, including the power to issue directions under Section 5 of the Act of the Central Government as may be delegated to them.” 11. In Essar Oil Limited v. Halar Utkarsh Samiti & Others, (2004) 2 SCC 392, a two-Judges bench emphasizing the strong link between Article 21 and the right to know particularly about the environmental issues observed: LPA 277/2009 Page 10 of 17 “36. For this purpose the State Government must ask for and obtain an environmental impact report from expert bodies. The applicant must also come forward with an environmental management plan which must be cleared by the experts. To prevent possible future damage, the State Government must also be satisfied that the damage which may be caused is not irreversible and the applicant should be prepared and must sufficiently secure the cost of reversing any damage which might be caused. The State Government should also have in place the necessary infrastructure to maintain periodical surveys and enforce the stipulations subject to which the permit may be granted. In future the State Government should, before granting the approval, also call upon the applicant to publish its proposal so that public, particularly those who are likely to be affected, are made aware of the proposed action through the sanctuary or natural park. This will ensure transparency in the process and at least safeguard against a decision of the State Government based solely upon narrow political objectives. Besides the citizens who have been made responsible to protect the environment have a right to know. There is also a strong link between Article 21 and the right to know particularly where "secret Government decisions may affect health, life and livelihood". The role of voluntary organisations as protective watch-dogs to see that there is no unrestrained and unregulated development, cannot be