Case: Bses Limited &amp; Another Vs. Union of India &amp; Others

of FGD Plant. NEERI Report, as also assessment made by the experts of DTEPA, came to the conclusion that with a view to protect the environment, particularly in an environmentally fragile area, it was necessary that the FGD Plant be installed. The matters considered by DTEPA and the experts before it are highly technical matters, on which this Court cannot express its opinion. Since DTEPA has taken the decision after consideration of all aspects of the matter, interference by this Court in writ jurisdiction may not be justified. In fact, the same was the submission advanced by the petitioners when the grant of clearance to them for installation of the plant was challenged before this Court. While dismissing the writ petition filed by the Bombay Environmental Action Group, this Court observed:---"14. Mr. Andhyarujina, learned Counsel for the Company (Bombay Suburban Electric Supply Company Limited), laid considerable emphasis on Courts power of judicial review in a matter and project of the instant nature. He contended that the Courts jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and/or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable..........."17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the environmentalists, the State and the Central authorities and expert-bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further."The same view was reiterated by the Supreme Court when the matter was taken in appeal. In the judgment in the case of Dahanu Taluka Environment Protection Group & another v. Bombay Suburban Electricity Supply Company Ltd. & others reported in 1991(2) Supreme Court Cases 539, the Court observed :"2. The limitations, or more appropriately, the self-imposed restrictions of a Court in considering such an issue as this (construction of a thermal power plant) have been set out by the Court in (Rural Litigation & Entitlement Kendra v. State of U.P.)4, 1987(1) S.C.R. 637 .. See in this regard the connected detailed judgment of Ranganath Misra, J., (as he then was) in the same matter at 1987(1) S.C.R. 641, and (Sachidanand Pandey v. State of W.B.)5, 1987(2) S.C.C. 295. The observations in those decisions need not be reiterated here. It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Courts role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision."23. The same principles must apply to the case in hand. MPCB, which consists of experts, has considered all aspects of the matter in the light of the special status of Dahanu, being an ecologically fragile area. Various experts have expressed divergent views, and discussions were held before arriving at the conclusion. These views have been taken into account by DTEPA. The petitioners themselves had set up the Thermal Power Plant with a clear understanding that they would have to set up FGD Plant. The mere fact that another view is possible, inasmuch as presently there is no imminent threat to the environment, is no ground for interfering with the order of DTEPA. The setting up of FGD Plant is a preventive measure, and the petitioners cannot insist that the setting up of the FGD Plant must be insisted upon only after it is established that the emissions from the Thermal Power Plant have adversely affected environment in Dahanu region. It is precisely with a view to prevent such an occurrence that the aforesaid measure is insisted upon. We find that all relevant aspects have been considered by DTEPA, which is an expert body, and in a case of this nature, no interference by this Court is justified. Even if there is a difference of opinion between the experts, the view taken by DTEPA supporting one such view cannot be characterised as irrational or perverse. In any event, this Court cannot be called upon to substitute its views for those of an expert body.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]18. DTEPA took note of the order passed by the Supreme Court in (Bittu Sehgalanother v. Union of Indiaothers)3, Writ Petition(C) No. 231 of 1994, in which the Court had directed NEERI to examine the effect of the Thermal Plants operating in Dahanu area. The recommendations by NEERI included the recommendation that the petitioners should install FGD system forthwith, in view of the limitedassimilative capacity. The finding of NEERI was challenged by the petitioners before DTEPA, and it was submitted that the DTEPA was not bound to implement those recommendations. It was only required to consider those recommendations. The matter was considered by DTEPA in detail, and it has been emphasised that cognizance must be taken of the ecological fragility of the Dahanu region. It was for this reasons that the State Government, as well as the Government of India, while granting approval, had insisted upon installation of FGD Plant. DTEPA was told by the petitioners that they had no desire to use gas in their plant. Initially, gas could not be used, as it was not available, but even when gas was available, the petitioners gave up the idea of using gas. DTEPA noted that Metropolis Gas Company(P) Ltd. had made it clear that it could supply gas, if request was made by any consumer. DTEPA therefore, recorded a finding that if efforts were made by the petitioners, gas could be made available in future, which it was expected to use in preference to coal. 19. The experts of DTEPA did not agree with the findings of Dr. Sudhakar of the Centre for Energy, Environment and Technology, Administrative Staff College of India, Hyderabad. There was a full discussion between Dr. Mishra of the National Institute of Hydrology, Roorkee, and the said Dr. Sudhakar. In his letter of 22nd April, 1999, Dr. Mishra had noted that it had been agreed upon that the computation of Sulphur Dioxide concentration should be made for stable atmospheric condition. Accordingly, the concentration of Sulphur Dioxide was computed, and results were enclosed, which showed that as envisaged, the concentration corresponding to stable atmospheric condition is higher than the concentration corresponding to neutral and unstable condition. Thus, the Gaussian dispersion model predicts concentration of Sulphur Dioxide which is more than the allowable limit. This view was expressed by Dr. Mishra after discussions with Dr. Sudhakar. 20. It may also be noticed that reliance earlier placed upon the mathematical model was not pressed before DTEPA, but relying upon the opinion of the Expert Member, Dr. V.V. Shrivaikar of MPCB, it was submitted that the FGD system may not be rated compulsory. This view, according to the petitioners, also supported the assessment made by World Bank Experts after their appraisal. It was also submitted that about 14 projects have been granted clearance for installation of Thermal Power Plants without the establishment of FGD Plants. 21. DTEPA found that the petitioners had given up the mathematical model, because, after discussions and after getting the conclusions from the mathematical model, it was discovered that it went against the interests of the petitioners. That was why the petitioners had changed their stand, contending that it would be an idle exercise, as the mathematical model itself was not proper. DTEPA also found that the status of the areas where Thermal Power Stations were allowed to come up without insisting upon installation of FGD Plant, was not comparable with the status of Dahanu, which is an environmentally fragile area, necessitating the issuance of the said Notification by the Government of India. After considering all aspects of the matter, DTEPA reached the followingOne of the initial tasks in carrying out an environmental assessment should include the use of appropriate air quality/dispersion models to estimate the impact of Thermal Power Plant project on the ambient concentration of different associated pollutants. Accordingly a steady state Gaussian Plume Dispersion equation has been used to compute the SO2 concentration for constant pollution emission rate of 45 metric tons per day and flow rate of emission of 15,65,928 m3/hour. "2. The other basic data, such as world (sic) velocity, wind direction, air temperature, reference height at which wind velocities have been measured, stability glass, mixing height, stack gas temperature, stack height etc. have been supplied by BSES and the hourly concentrations of SO2 have been computed and using these values daily concentrations have been computed. The results have been computed for unstable, neutral and stable atmospheric condition. The computed concentrations at many locations and at several times are found to exceed the allowable limit. "3. It is recognised that the field measurements of ambient air quality periodically collected by the BSES Ltd. as well as by the MPCB have been showing the air quality parameters within the prescribed standards. It is also recognised that the measurements are available at rather few number of locations and thus there exists a scant possibility that the location of the highest concentration would coincide with the ambient air quality measurement station/van. "4. Thus, based on the scientific evidence and inferring from the results obtained from the computer modelling and keeping all the limitations of the models as well as the limitations of the assumptions and input data in mind, based on the "Principle of Caution", these researchers have reached a conclusion that the BSES Ltd. should set up the FGD Plant at DTPS (Dahanu Thermal Power Station)." 22. As will be evident from the impugned order itself, all aspects of the matter have been carefully considered by DTEPA. The matter was heard on several days, and, apart from the experts of DTEPA, the experts of the Company and the experts ofNo. 4 and other experts were also consulted, and there was full discussion amongst the experts. After considering all aspects of the matter, the conclusion was reached that the petitioners must install FGD Plant. DTEPA also took note of the fact that while granting project clearance, the State Government, Government of India and MPCB had insisted upon the installation of FGD Plant. NEERI Report, as also assessment made by the experts of DTEPA, came to the conclusion that with a view to protect the environment, particularly in an environmentally fragile area, it was necessary that the FGD Plant be installed. The matters considered by DTEPA and the experts before it are highly technical matters, on which this Court cannot express its opinion. Since DTEPA has taken the decision after consideration of all aspects of the matter, interference by this Court in writ jurisdiction may not be justified. In fact, the same was the submission advanced by the petitioners when the grant of clearance to them for installation of the plant was challenged before this Court. While dismissing the writ petition filed by the Bombay Environmental Action Group, this CourtMr. Andhyarujina, learned Counsel for the Company (Bombay Suburban Electric Supply Company Limited), laid considerable emphasis on Courts power of judicial review in a matter and project of the instant nature. He contended that the Courts jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and/or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable..........."17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmentalhave been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the environmentalists, the State and the Central authorities andis undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further."The same view was reiterated by the Supreme Court when the matter was taken in appeal. In the judgment in the case of Dahanu Taluka Environment Protection Groupanother v. Bombay Suburban Electricity Supply Company Ltd.others reported in 1991(2) Supreme Court Cases 539, the Court observed :"2. The limitations, or more appropriately, therestrictions of a Court in considering such an issue as this (construction of a thermal power plant) have been set out by the Court in (Rural LitigationEntitlement Kendra v. State of U.P.)4, 1987(1) S.C.R. 637 .. See in this regard the connected detailed judgment of Ranganath Misra, J., (as he then was) in the same matter at 1987(1) S.C.R. 641, and (Sachidanand Pandey v. State of W.B.)5, 1987(2) S.C.C. 295. The observations in those decisions need not be reiterated here. It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Courts role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision."23. The same principles must apply to the case in hand. MPCB, which consists of experts, has considered all aspects of the matter in the light of the special status of Dahanu, being an ecologically fragile area. Various experts have expressed divergent views, and discussions were held before arriving at the conclusion. These views have been taken into account by DTEPA. The petitioners themselves had set up the Thermal Power Plant with a clear understanding that they would have to set up FGD Plant. The mere fact that another view is possible, inasmuch as presently there is no imminent threat to the environment, is no ground for interfering with the order of DTEPA. The setting up of FGD Plant is a preventive measure, and the petitioners cannot insist that the setting up of the FGD Plant must be insisted upon only after it is established that the emissions from the Thermal Power Plant have adversely affected environment in Dahanu region. It is precisely with a view to prevent such an occurrence that the aforesaid measure is insisted upon. We find that all relevant aspects have been considered by DTEPA, which is an expert body, and in a case of this nature, no interference by this Court is justified. Even if there is a difference of opinion between the experts, the view taken by DTEPA supporting one such view cannot be characterised as irrational or perverse. In any event, this Court cannot be called upon to substitute its views for those of an expert body.