WPC No.388/2009 Page 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + WRIT PETITION (CIVIL) NO. 388 OF 2009 Reserved on : 21st April, 2009. % Date of Decision : 18th September, 2009. BALACHANDRA BHIKAJI NALWADE .... Petitioner. Through Mr. Sanjiv Parikh, Mr.Jitin Sahni, Mr.Rahul Choudhary, advocates. VERSUS UNION OF INDIA & ORS. .... Respondents. Through Mr. Dalip Mehra, Mr.Rajiv Ranjan Mishra, Advocates for UOI. Mr. Mukesh Verma, Mr.Vivek Vishnoi, advocates for respondent no.2. Mr.T.R.Andhiyarujina, Mr.R. Ramachandran, Sr.Advocates with Mr.U.A.Rana, Mrs.Mrinal Majumdar, Mr.Shoumik Ghoshal, advocate for respondent no.3. CORAM: HON’BLE MR. JUSTICE AJIT PRAKASH SHAH, CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J.: 1. Mr. B.B.Nalwade, the petitioner has filed the present Writ Petition for issue of Writ in the nature of Certiorari for quashing the Order dated 12th September, 2008 passed by the National Environment Appellate Authority (hereinafter referred to as NEAA, WPC No.388/2009 Page 2 for short) dismissing his appeal under Section 11(1) of the National Environment Appellate Authority Act, 1997 ((hereinafter referred to as Appellate Act, for short). The petitioner also seeks quashing of the Environment Clearance Order dated 17th May, 2007 granted by the Ministry of Environment and Forest (hereinafter referred to as MOEF, for short) permitting JSW Energy Ltd. (Ratnagiri) Ltd- respondent no.3 herein to set up and construct 1200 MW (4 x 300 MW) coal base Thermal Power Station (hereinafter referred to as TPP, for short) at Jaigarh, Maharashtra. 2. The petitioner states that he is a resident of Ganpatipule Taluka, Distt. Ratnagiri which is a project affected area and earns his livelihood mainly from mango business and he owns mango orchards. It is stated that Ratnagiri district produces Alphonso mangoes and the permission granted by the MOEF and upheld by NEAA is illegal, contrary to statutory provisions, precautionary principle and is otherwise on merits based upon unconfirmed data and assumptions. The following contentions have been raised by the petitioner : (a) There is violation of Environment Impact Notification of 1994 (hereinafter referred to as 1994 Notification, for short) as amended upto 2002. The said contention has several sub-parts, which have been considered while dealing with the contention on merits. WPC No.388/2009 Page 3 (b) Both MOEF and NEAA have erred in relying upon the so called report of Konkan Krishi Vidyapeeth, Dapoli (hereinafter referred to as KKVD, for short) which is inconclusive and not a report certifying that the proposed project shall not have irreversible adverse impact on the environment. (c) It is alleged that the Environment Clearance Order and the order of NEAA are based upon wrong assumptions and statements which are incorrect. There is an error in the decision making process as irrelevant have been considered and what are relevant and material have been ignored. 3. Relevant portion of the 1994 Notification as amended upto 2002 reads as under:- “1) S.O.60 (E)- Whereas a notification under clause (a) of sub-rue (3) of rule 5 of the Environment (Protection) Rules, 1986 inviting objections from the public within sixty days from the date of publication of the said notification, against the intention of the Central Government to impose restrictions and prohibitions on the expansion and modernization of any activity or new projects being undertaken in any part of India unless environmental clearance has been accorded by the Central Government or the State Government in accordance with the procedure specified in that notification was published as SO No.80(E) dated 28th January, 1993; x x x x x 2) Requirements and procedure for seeking environmental clearance of projects : WPC No.388/2009 Page 4 I.(a) Any person who desires to undertake any new project in any part of India or the expansion or modernization of any existing industry or project listed in the Schedule-I shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi. The application shall be made in the proforma specified in Schedule-II of this notification and shall be accompanied by a project report which shall, inter alia, include an Environmental Impact Assessment Report, Environment Management Plan and details of public hearing as specified in Schedule-IV prepared in accordance with the guidelines issued by the Central Government in the Ministry of Environment and Forests from time to time. However, Public Hearing is not required in respect of (i) small scale industrial undertakings located in (a) notified/designated industrial areas/industrial estates or (b) areas earmarked for industries under the jurisdiction of industrial development authorities; (ii) widening and strengthening of highways; (iii) mining projects (major minerals) with lease area up to twenty five hectares, (iv) units located in Export Processing Zones, Special Economic Zones and (v) modernization of existing irrigation projects. x x x x x x (b) Cases rejected due to submission of insufficient or inadequate data and Plan may be reviewed as and when submitted with complete data and Plan. Submission of incomplete data or plans for the second time would itself be a sufficient reason for the Impact assessment Agency to reject the case summarily. II. x x x x x x III. (a) The reports submitted with the application shall be evaluated and assessed by the Impact Assessment Agency, and if deemed necessary it may consult a committee of Experts, having a composition as specified in Schedule-III of this Notification. The Impact Assessment Agency (IAA) WPC No.388/2009 Page 5 would be the Union Ministry of Environment and Forests. The Committee of Experts mentioned above shall be constituted by the Impact Assessment Agency or such other body under the Central Government authorized by the Impact Assessment Agency in this regard. IV. x x x x x V. x x x x x 3) x x x x x 4) Concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected. Approval, if granted earlier on the basis of false data, would also be revoked. Misleading and wrong information will cover the following:  False information  False data  Engineered reports  Concealing of factual data  False recommendation or decisions” “(FORM A) APPLICATION FORM 1. (a) x x x x (b) x x x x x (c) Alternate sites examined and the reasons for selecting the proposed site:” “SCHEDULE-III [See Sub.Para (2), Para 3 of Schedule-II] COMPOSITION OF THE EXPERT COMMITTEES FOR ENVIRONMENTAL IMPACT ASSESSMENT 1. The Committees will consist of experts in the following disciplines: i. x x x x ii. x x x x iii. x x x x iv. x x x x v. x x x x vi. Social Sciences/Rehabilitation WPC No.388/2009 Page 6 vii. x x x x x viii. x x x x x ix. x x x x x x. x x x x x xi. Representatives of NGOs/persons concerned with environmental issues. 2. The Chairman will be an outstanding and experienced ecologist or environmentalist or technical professional with wide managerial experience in the relevant development sector. 3. The representative of Impact Assessment Agency will act as a Member-Secretary. 4. Chairman and Members will serve in their individual capacities except those specifically nominated as representatives. 5. The Membership of a Committee shall not exceed 15.” “SCHEDULE IV (See para 3, subparagraph (2) of Schedule-II) PROCEDURE FOR PUBLIC HEARING (1) Process of Public Hearing:- Whoever apply for environmental clearance of projects, shall submit to the concerned State Pollution Control Board twenty sets of the following documents namely:- i. An executive summary containing the salient features of the project both in English as well as the local language along with Environmental Impact Assessment (EIA). However, for pipeline project, Environmental Impact Assessment report will not be required. But Environmental Management Plan including risk mitigation measures is required. ii. Form XIII prescribed under Water (Prevention and Control of Pollution) Rules, 1975 where discharge of sewage, trade effluents, treatment of water in any form, is required. WPC No.388/2009 Page 7 iii. Form I prescribed under Air (Prevention and Control of Pollution) Union Territory Rules, 1983 where discharge of emissions are involved in any process, operation or industry. iv. Any other information or document which is necessary in the opinion of the Board for their final disposal of the application. (2) Notice of Public Hearing:- (i) The State Pollution Control Board shall cause a notice for environmental public hearing which shall be published in at least two newspapers widely circulated in the region around the project, one of which shall be in the vernacular language of the locality concerned. State Pollution Control Board shall mention the date, time and place of public hearing. Suggestions, views, comments and objections of the public shall be invited within thirty days from the date of publication of the notification. (ii) All persons including bona fide residents, environmental groups and others located at the project site/sites of displacement/sites likely to be affected can participate in the public hearing. They can also make oral/written suggestions to the State Pollution Control Board. Explanation:- For the purpose of the paragraph person means:- a. any person who is likely to be affected by the grant of environmental clearance; b. any person who owns or has control over the project with respect to which an application has been submitted for environmental clearance; c. any association of persons whether incorporated or not like to be affected by the project and/or functioning in the field of environment; d. any local authority within any part of whose local limits is within the neighbourhood wherein the project is proposed to be located. WPC No.388/2009 Page 8 (3) Composition of public hearing panel: - The composition of Public Hearing Panel may consist of the following, namely:- (i) Representative of State Pollution Control Board; (ii) District Collector or his nominee; (iii) Representative of State Government dealing with the subject; (iv) Representative of Department of the State Government dealing with Environment; (v) Not more than three representatives of the local bodies such as Municipalities or panchayats; (vi) Not more than three senior citizens of the area nominated by the District Collector. (4) Access to the Executive Summary and Environmental Impact Assessment report:- The concerned persons shall be provided access to the Executive Summary and Environmental Impact Assessment report of the project at the following places, namely:- (i) District Collector Office; (ii) District Industry Centre; (iii) In the Office of the Chief Executive Officers of Zila Parishad or Commissioner of the Municipal Corporation/Local body as the case may be; (iv) In the head office of the concerned State Pollution Control Board and its concerned Regional Office; (v) In the concerned Department of the State Government dealing with the subject of environment. 5. Time period for completion of public hearing. The public hearing shall be completed within a period of 60 days from the date of receipt of WPC No.388/2009 Page 9 complete documents as required under paragraph 1.” 4. As per the 1994 Notification, any person before undertaking a new project or extension or modernization of an existing industry or project listed in Schedule I to the said Notification was required to submit an application for clearance to the Secretary, MOEF. Thermal power plants are included in Schedule I and required clearance. Respondent no.3 therefore, required clearance for setting up TPP at Jaigarh, Distt. Ratnagiri. 5. The 1994 Notification prescribed the application form to be submitted. The application form was to be accompanied with the project reports including Environment Impact Assessment Report (hereinafter referred to as EIA Report, for short) and Environment Management Plan (hereinafter referred to as EMP, for short) prepared in accordance with guidelines issued by the Central Government. EIA Report was evaluated and assessed by an independent committee of experts constituted by the Impact Assessment Agency (hereinafter referred to as IAA, for short). The body or list of organisations authorised to submit EIA reports has been published by the MOEF, Government of India. MOEF has published EIA Manual which provides guidance for EIA appraisal and was/is mainly addressed to the EIA mitigation by the IAA. The intention is to ensure an objective report preparation by the IAA with WPC No.388/2009 Page 10 relevant data of consequences/impact, to enable the authorities to take an informed decision. The objective of EIA is to foresee the potential impact of the proposed project on the environment, vegetation and persons in the area. A mitigation plan is to be drawn up in the EMP to guide the applicant towards environment improvement. Both EIA Report and EMP are crucial for both clearance and monitoring the clearance conditions and require inclusion and coverage of all significant environmental impacts and their mitigation. 6. As per para 1.5 of EIA Manual there can be comprehensive or a rapid EIA (hereinafter referred to as REIA, for short). The difference lies in the time scale of the data on which the EIA report is prepared. REIA is prepared on data collected in one season, other than monsoon. REIA is acceptable if it does not compromise on the quality of the decision making. A comprehensive EIA report is based upon the data collected for a period of one year. A review of the REIA report is made, to decide whether comprehensive EIA is warranted or not. 7. The object of EIA rapid or comprehensive is to identify the consequences and the affect of the proposed project on the environment in the area, including vegetation, flora and fauna. The independent certifying agency-IAA is required to examine data WPC No.388/2009 Page 11 furnished by the project authorities and supplement it by collecting further data during site visits. This enables an objective and effective collection of data and analysis so that an informed decision can be taken on the consequences of the proposed project. In the present case, the respondent no.3 had engaged services of an independent agency-EQMS India Pvt. Ltd. an authorized investigative agency for the said proposed project. Copy of the said REIA was produced in Court and has been taken on record. It is a rather bulky document containing the data and impact the proposed TTP will have in the area due to discharge of gases, pollutants, particulate matter, existing pollution levels and expected rise in pollution parameters after the proposed project. 8. Schedule IV of the 1994 Notification, required public hearing in the area before an application was considered by MOEF. The project proponent was required to submit 20 sets of REIA Report along with Executive Summary and other documents to the concerned State Pollution Control Board. Executive summary was a condensed synopsis of the REIA/EIA and should contain salient feature of the project, pollution levels existing and expected. Executive summary should be both in English as well as in the local language. The State Pollution Control Board was thereafter required to cause and issue notice for public hearing. The said notice was to be published in two newspapers widely circulated in the region of WPC No.388/2009 Page 12 the project, one of which should be in vernacular language of the locality concerned. The notice should mention date, time and place of public hearing. Suggestions, views, comments and objections were invited from the public within 30 days of the notification. All bonafide residents, environment groups and other locals at the project site or were likely to be affected could participate in the hearing. They were entitled to make oral or written suggestions to the concerned Pollution Control Board. 9. In order to have a proper and informed public hearing “the public” was to be provided access to the executive summary and REIA/EIA report. Schedule IV provides that the public would have access to the executive summary and REIA/EIA report at five places as stipulated therein. Importance of public hearing has to be emphasized. It is based on the principle of participatory democracy, community participation and also ensures that the affected persons have a say and their voice is heard. People have been given right to meaningful participation in decisions affecting their lives. 10. Learned counsel for the petitioner referred to the public notices and submitted that only copy of the executive summary was made available and was submitted by the respondent no.3 to the Maharashtra Pollution Control Board (hereinafter referred to as MPCB, for short) and copy of REIA report was never furnished and WPC No.388/2009 Page 13 therefore the public did not have access to the same. In this connection, he has also relied upon a judgment of a Division Bench of the Karnataka High Court in the case of A. Thiruppaly Gram Panchayat versus Union of India dated 23rd March, 2006,a copy of which has been enclosed with the Writ Petition. Reference was also made to the pleadings filed by the respondent no.3 in a public interest litigation pending before the Bombay High Court. 11. We have examined the material placed before us and are not inclined to accept the said contention of the petitioner. The petitioner had not appeared or participated in the two public hearings and has no personal knowledge whether or not public had access to REIA Report at the five locations mentioned in Schedule IV. He did not make any request for inspection and access to REIA. Respondent no.3, on the other hand, has submitted that they had furnished 20 copies of the REIA Report in English and the Executive summary - in Marathi and in English to MPCB vide their letter/application dated 8th June, 2006. Reference was also drawn to the pleadings before the NEAA wherein specific averments to the said effect was made in para 18 of the reply affidavit. It was stated that the petitioner in his rejoinder filed to the said reply did not deny the said facts. It was submitted by the learned counsel for respondent no.3 that MPCB had made specific reference to the executive summary in their letters but this does not mean that they were not supplied the REIA WPC No.388/2009 Page 14 Report, and its availability and whether access to the same was denied to the public. Our attention was drawn to the letter dated 17th June, 2006 written by MPCB to the Collector, Ratnagiri enclosing therewith executive summary in English and Marathi and copies of “affect on environment” etc. It was stated that copy of “affect on environment” was a reference to the REIA report. Our attention was also drawn to the advertisements in English and Marathi which referred to the executive summary and other documents/information. It was stated that other documents/information referred to were the REIA report, EMP report etc. 12. Public hearing was held in the Collector‟s office on 8th November, 2006. The said meeting, however, was inconclusive as the local inhabitants demanded that the proceedings should be conducted in Marathi and not in English or Hindi. The petitioner, as stated above, did not participate in this Meeting held on 11th August, 2006. Ratnagiri Bachao Sangharsh Samiti by their letter dated 8th November, 2006 had demanded furnishing of copy of all documents to enable them to seek opinion of experts. In this letter, they did not claim that the REIA report was not available and access was denied. It was stated by them that they were not entirely opposing the project but were raising points which they would take up at the public hearing. They demanded that a copy of the REIA report WPC No.388/2009 Page 15 prepared in respect of the project and other documents should be provided to them, so that their experts could study the proposed project. Respondent no.3 in reply to this letter had stated that MPCB had already distributed the said reports/documents as per rules. The said Samiti had also earlier written letter dated 8th June, 2006 seeking copy of the REIA and other documents regarding environment impact. 13. On 24th August, 2006 a fresh notice was published in the newspapers for public hearing to be conducted on 12th September, 2006. 14. On 12th September, 2006 public hearing was held at a location near the project site. The meeting was conducted in Marathi. The petitioner did not participate in the said meeting. 15. Ratnagiri Bachao Sangharsh Samiti did not file any writ petition or appeal under Section 11 of the Appellate Act. Another organisation, namely, Ratnagiri Zila Zagruk Manch has filed a public interest litigation, before the Bombay High Court against the public hearing. Petitioner relied upon the letter dated 2nd December, 2006 written by Ratnagiri Zila Zagruk Manch. This letter was written three months‟ after the public hearing was held on 12th September, 2006 and after respondent no.3 had already submitted their letter to the MOEF for clearance on 6th November, 2006. In this letter, WPC No.388/2009 Page 16 Ratnagiri Zila Zagruk Manch had claimed that they were denied opportunity to examine the complete REIA report before the public hearing and they could not raise genuine concerns in the meeting held on 12th September, 2006. Respondent no.3 disputes the contents of this letter and had stated that the letter was not addressed to any person. It was also pointed out that in the Writ Petition filed by Ratnagiri Zila Zagruk Manch before the Bombay High Court, no grievance has been made that the REIA report was not made available and public was denied access to REIA. It was claimed that the said Manch was not represented in the public hearing held on 12th September, 2006. 16. In the light of the aforesaid position, it is not possible to accept the contention of the petitioner that the REIA report was not available and copies of the said report were not submitted by the respondent no.3 to MPCB along with their application. The petitioner was not present in any of the meetings and has no personal knowledge whether the REIA report was supplied to MPCB (though this factor alone is not conclusive. The report must be assessable). On the other hand, there are documents to support the contention of the respondent no.3 that these were duly supplied. MPCB admits that they had received 20 copies of the REIA report and were available and assessable to public. Judgment of the Karnataka High Court in the case of A.Thiruppaly Gram Panchayat (supra) is WPC No.388/2009 Page 17 therefore distinguishable as in the said case the project proponent had not published the REIA report and there was also failure to hold public meeting in terms of 1994 Notification. 17. The contention of the petitioner that two separate REIA reports were prepared and the first REIA report was replaced by the second REIA report is also without merit. Respondent no.3 has drawn our attention to the corrections made in the REIA report, after the public hearing. The said corrections are minor amendments and are of inconsequential nature. The basic fabric of the REIA report continues to be the same. The minor corrections do not in any manner reflect upon the data, evaluation thereof and statements made in the REIA report. This aspect was explained by the respondent no.3 before NEAA in their affidavit dated 17th March, 2008. Similarly, the contention of the petitioner that the application form of respondent no.3 should have been rejected as it did not disclose alternative location to the proposed project site has to be rejected. Respondent no.3 had explained that the project site was identified as it was ideal due to accessibility to road, availability of table top barren land, availability of sea water for cooling, potential for unloading of imported coal and exporting fly ash and there was no rehabilitation and resettlement issues as the area was not inhabited. Respondent no.3 relied upon the advantages of the present location, which was purchased by them long back in 1992. It WPC No.388/2009 Page 18 is not the case of the petitioner that they or anyone else had identified a more suitable location or had proposed that the project should be located at a different place. Respondent no.3 had identified only one