HANUMAN LAXMAN AROSKAR versus UNION OF INDIA
[2019] 5 S.C.R. 916, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Ratio
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HANUMAN LAXMAN AROSKAR
v.
UNION OF INDIA
(Civil Appeal No. 12251 of 2018)
MARCH 29, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Environmental Law:
Environmental clearance (EC) – Grant of – For development
of airport in Goa – Challenged before National Green Tribunal
(NGT) – NGT affirmed the EC holding that the project did not
compromise with the environment and concluded that further
safeguards for environmental protection needed to be incorporated
– On appeal, held: Rule of law requires a regime which has effective,
accountable and transparent institutions – Responsive, inclusive,
participatory and representative decision making are key ingredients
to the rule of law – Public access to information is fundamental to
the preservation of rule of law – Environmental governance that is
founded on the rule of law emerges from the value of the Constitution
– Health of environment is key to preserving the right to life as a
constitutionally recognized value under Art.21 – Proper structures
for environmental decision-making find expression in the guarantee
against arbitrary action and the affirmative duty of fair treatment
u/Art. 14 of the Constitution – In the area of environmental
governance, the process of decision-making are as crucial as the
ultimate decision – The basic postulate of 2006 Notification was
that the path which was prescribed for disclosures, studies, gathering
data, consultation and
appraisal was designed in a manner that
would secure a transparent, responsive and inclusive decision-
making – In the present case there was failure to follow binding
norms under the 2006 Notification – There were serious flaws in
decision-making process – Relevant material was excluded from
consideration and extraneous circumstances were borne in mind –
EAC as an expert body abdicated its obligations to make an expert
determination based on reasons – NGT as an adjudicatory body
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failed to exercise the jurisdiction entrusted to it u/s. 16(h) r/w. s. 20
of NGT Act by merely deferring to the decision to recommend and
grant an EC – However, the need for setting up a new airport is a
matter of policy – In order to bring about a wholesome balance
between the development of infrastructure and preservation of
environment, in exercise of jurisdiction of Art. 142 of Constitution,
EAC is directed to revisit the conditions subject of which it had
granted EC, in a time bound manner – Constitution of India – Arts.
14, 21, 51A(g) and 142 – National Green Tribunal Act, 2010 –
ss. 16(h) and 20.
Government of India approved setting up of an airport in
Goa in the year 2000. Ministry of Environment and Forests of
Government of India issued Notification in 2006, mandating prior
Environmental Clearance (EC). In 2011 State of Goa as the project
proponent submitted Form 1 as stipulated in 2006 Notification.
In 2015 Expert Appraisal Committee (EAC) which was
constituted under 2006 Notification recommended the grant of
an EC for the project and the Ministry concerned approved grant
of EC. Grant of EC was challenged by the appellants before the
National Green Tribunal (NGT). NGT upheld the EC and imposed
additional conditions to safeguard the environment. Hence, the
present appeals.
Disposing of the appeals, the Court
HELD: 1. The Constitution (Forty-second Amendment) Act
1976, which came into force with effect from 3 January 1977,
inserted Article 48A to
the Constitution which mandates that the
State shall endeavor to protect and improve the environment and
safeguard the forests and wildlife of the country. Article 51A(g)
of the Constitution places a corresponding duty on every citizen
to protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living
creatures. Following the decisions taken at the United Nations
Conference on the Human Environment held at Stockholm in June
1972 in which India participated, Parliament enacted the
Environment Protection Act 1986 to protect and improve the
environment and prevent hazards to human beings, other living
creatures, plants and property. [Para 32][951-A-C]
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2. The MoEF, in exercise of the powers conferred by sub-
section (1) and clause (v) of sub-section (2) of Section 3 of the
1986 Act read with clause (d) of sub-rule 3 of rule 5 of the
Environment (Protection) Rules, 1986, issued a notification
imposing restrictions and prohibitions on the expansion and
modernisation of any activity or new project unless an EC was
granted under the procedure stipulated in the notification. Under
the notification, any person undertaking a new project or
expanding and modernizing an existing project was required to
submit an application to the Secretary, Ministry of Environment
and Forests, New Delhi. On 14 September 2006, MoEF released
another notification in supersession of the previous notification.
The salient objective which underlies the 2006 notification is the
protection, preservation and continued sustenance of the
environment when the execution of new projects or the expansion
or modernization of existing projects is envisaged. It imposes
certain restrictions and prohibitions based on the potential
environmental impact of projects unless prior EC has been
granted by the concerned authority. The EC is required before
any construction work, or preparation of land (except for securing
the land) is started on the project or activity listed in the Schedule
to the notification. [Paras 33, 37 and 40][951-C-E; 952-C; 954-
A-B]
3.The process to obtain environmental clearance as
stipulated by the notification for new projects comprises a
maximum of four stages, all of which may not apply depending on
the specific case stipulated under the notification: Screening;
Scoping; Public Consultation; and Appraisal. [Para 43][955-E-G]
4.The 2006 notification embodies the notion that the
development agenda of the nation must be carried out in
compliance with norms stipulated for the protection of the
environment and its complexities. It serves as a balance between
development and protection of the environment: there is no trade-
off between the two. The protection of the environment is an
essential facet of development. It cannot be reduced to a technical
formula. The notification demonstrates an increasing awareness
of the complexities of the environment and the heightened
scrutiny required to ensure its continued sustenance, for today
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and for generations to come. It embodies a commitment to
sustainable development. In laying down a detailed procedure
for the grant of an Environmental Clearance (EC), the 2006
notification attempts to bridge the perceived gap between the
environment and development.  [Para 54][959-C-E]
5. The State of Goa as the project proponent in failing to
disclose wet lands, water sources, water bodies, biospheres,
mountains and forests within an aerial distance of 15 kilometres
as required by Form 1. The disclosure in Form 1 constitutes the
very foundation of the process which is initiated on the basis of
the information supplied by the project proponent. Following the
disclosure in Form 1, Terms of Reference (ToR) are formulated,
and this leads to the preparation of the Environmental Impact
Assessment (EIA) report. A duty is cast upon the project
proponent to make a full, complete and candid disclosure of all
aspects bearing upon the environment in the area of study. The
project proponent cannot profess an ignorance about the
environment in the study area. The project proponent is bound
by the highest duty of transparency and rectitude in making the
disclosures in Form 1. [Para 67][967-D-F]
6. Form 1 is an important ingredient in the entire process
envisaged under the 2006 notification. Hence, clause (vi) of para
8 of the 2006 notification provides that deliberate concealment
or submission of false or misleading information or data which is
material to screening
or scoping or appraisal or decision on the
application shall make the application liable for rejection and lead
to the cancellation of a prior EC granted on that basis. The
declaration which is required of the project proponent is to a
similar effect.  [Para 68][967-F-G]
7. Form 1 requires a disclosure of areas which are important
or sensitive for ecological reasons, among them, being “forests”.
The expression “forests” is used without reference to a statutory
or artificial definition and must hence incorporate a meaning which
bears upon the ordinary description of the term. The expression
“forests”, means a forest as commonly understood, without
reference to a notification under the Indian Forest Act 1927 or
any other statutory enactment. Such an interpretation will subserve
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the purpose of an (EIA). The purpose is to ensure that all relevant
facets of the environment are noticed, that base-lines are
documented, and that the potential impact of a project or activity
on the environment is assessed. Forests are forests without
reference to recognition in a statutory form devised for a specific
purpose. Therefore, it is not correct that the disclosure required
was of reserved forests comprehended within a notification under
sub-section (2) of Section 20 of the Indian Forest Act 1927.
[Para 69][967-H; 968-A-C]
T N Godavarman Thirumalpad v. Union of India
(1997) 2 SCC 267 : [1996] 9 Suppl. SCR 982;
Construction of Park at Noida near Okhla Bird
Sanctuary Anand Arya v. Union of India  (2011) 1 SCC
744 :  [2010] 15 SCR 783 – referred to.
8. Para 2 of the Executive Summary introducing the EIA
report acknowledges that the “surrounding land use of the airport
site is predominantly forest land”. In the context of land
environment, the EIA report records that “forest is the
predominant land use in the study area”. The EIA report
acknowledges that territories in Maharashtra fall within one
kilometre from the proposed greenfield airport. Villages falling
in Goa and Maharashtra within the 10 kilometre radius were
considered for assessment. Para 2.3.1 of Chapter II deals with
land use.  Land use/land cover statistics for a 10 kilometre radius
from the Mopa airport in the State of Maharashtra have been
tabulated. [Para 73][969-D-E]
9. The presence of a “diverse system set as dense and
open forest, cultivated lands, sand dune vegetation, wet lands
and human habitation” is noticed in para 4.6 dealing with the
biological environment. Annexure IX to the EIA report provides
land use/land cover maps for both Goa and Maharashtra in the
study area. The maps in Annexure IX cover forested areas in
Maharashtra and Goa within an aerial boundary of 10 kilometres
from the project site. Annexure XI contains the hydro-geo-
morphological maps for Goa and Maharashtra. [Para 74]
[970-A-B]
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10. Information furnished in Form 1 is crucial to the
preparation of the ToR by the Expert Appraisal Committee (EAC).
The EAC comprises of experts. It is constituted, among other
reasons, for the specific purpose of assessing the information
furnished in Form 1 and preparing comprehensive ToR. There is
an intrinsic link between the disclosures in Form 1 which
constitute the basis for formulating the ToR and between the
ambit of the EIA report required by the ToR and the final EIA
report. The ToR guide the preparation of the EIA report. A failure
to disclose information in Form 1 impairs the functioning of the
EAC in the preparation of the ToR and in consequence, leads to
preparation of a deficient EIA report. [Para 75][970-D-E]
11. EACs and State Expert Appraisal Committees (SEACs)
are conferred with the authority to reject applications for the grant
of an EC at the stage of scoping itself, prior to the preparation of
the ToR. The application may be rejected on the basis of the
information furnished by the project proponent in Form 1.
Claiming an EC as a matter of right merely because the EIA report
has assessed parameters that were omitted in Form 1, bypasses
the authority of the EAC and SEAC to reject an application at the
preliminary stage and cannot be countenanced. The regulatory
authority is required to assess the final documents submitted to
it “strictly with reference to the ToR” and communicate to the
EAC and SEAC any discrepancies between the
EIA report and
the ToR. A deficient ToR on the basis of the non-disclosure of
material information in Form 1 impedes this process.
[Para 76][970-F-H]
12. The failure on part of a project proponent to disclose
material information in Form 1 as stipulated under the 2006
notification has a cascading effect on the salient objective which
underlies the 2006 notification. The 2006 notification represents
an independent code with the avowed objective of balancing the
development agenda with the protection of the environment. An
applicant cannot claim an EC, under the 2006 notification, based
on substantial or proportionate compliance with the terms
stipulated in the notification. The terms of the notification lay
down strict standards that must be complied with by an applicant
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seeking an EC for a proposed project. The burden of establishing
environmental compliance rests on a project proponent who
intends to bring about a change in the existing state of the
environment. Whereas, in the present case, there has thus been
a patent failure on part of the project proponent to make
mandatory disclosures stipulated in Form 1 under the 2006
notification, that must have consequences in law. There can be
no gambles with the environment: a ‘heads I win, tails you lose’
approach is simply unacceptable; unacceptable if environmental
governance is to be preserved under the rule of law.
[Para 77][971-A-D]
13. The report of the High Level Working Group (HLWG)
dated 15 April 2013 recommends that there should be a complete
ban on mining, quarrying and sand mining activity in the
Ecologically Sensitive Zone (ESZ). Similarly, it recommends that
no thermal power project should be allowed in ESZs and that all
‘red category’ industries should be strictly banned. Building and
construction projects of 20,000 square metres and above should
not be allowed. However, all other infrastructure and development
projects, which have been recommended, should be subject to
the grant of ECs under Category ‘A’ projects of the 2006
notification. [Para 82][974-B-C]
14. The glaring deficiency which emerges from the EIA
report is its failure to notice the existence of ESZs within a buffer
distance of 10 kilometres of the project
site. On one hand, the
EIA report takes note of the HLWG report dated 15 April 2013.
But, on the other hand, the EIA report ignores the existence of
ESZs within the study area on the ground that the project site is
not situated in an ESZ. The purpose and object of the EIA report
is to map areas, understand their vulnerabilities, and conduct a
study on a scientific basis of the impact of the proposed project
on an ecologically sensitive terrain. The EIA report fails to meet
a classical requirement of administrative law: to take into account
a relevant consideration namely, that within the study area which
has to be considered, there is the presence of ESZs. [Para 85]
[974-G-H; 975-A-B]
15. In deducing the impact of a proposed activity on an ESZ,
it is not sufficient to take recourse to a generic assessment of a
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proposed activity on the ecology of the study area. The EIA report
must factor in those specific features which make an area
ecologically sensitive. These would encompass all aspects of
environmental concern which render the area ecologically
sensitive. This would include wet lands, water sources, water
bodies, costal zones, biospheres, mountains and forests. The
vulnerabilities of each of them must be studied as distinctive
components together with a holistic analysis of their existence in
a chain of bio-diversity. Where an area is ecologically sensitive
because of the presence of flora or fauna requiring protection,
that must be specifically adverted to and studied. The deficiency
of the EIA report emanates from its failure to notice that the
purpose of the study was not only to determine whether the project
site is ecologically sensitive.  Confining itself to this aspect, the
EIA report failed to consider a crucial and relevant consideration.
[Para 86][975-C-E]
16. Since the entire study area within a radius of 10
kilometres was considered for monitoring air quality, the Court
accepts the submission that the location of the sampling points
within Goa did not preclude the monitoring of air quality within
the study area. The impact of a greenfield airport on the closing
of natural channels which feed the water bodies has not been
scientifically mapped or studied. While monitoring the noise qual-
ity, the EIA report covered a radius of 10 kilometres. In
order to
obtain baseline data of noise quality, nine monitoring stations were
chosen in the study area.  While it is true that all nine locations
were situated in the State of Goa, one (Patradevi) was situated on
the border shared between Goa and Maharashtra.  The EIA re-
port contains an impact study and the study area covered includes
both the States. The collection of both primary and secondary
data of fauna in the EIA report was perfunctory. The primary study
is not based on data collected from acknowledged sources such
as the Zoological Survey of India, Wildlife Institute of India and
Ministry of Earth Sciences as required under the Guidance
manual. Similarly, as regard avi-faunal studies, the EIA report
lists 385 plant species in table 4.15 of Chapter IV, titled ‘De-
scription on Environment’.  It also states that 86 species of birds
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were observed during the survey in the 10 kilometre study area
from the proposed site. According to the Guidance manual, sec-
ondary data has to be collected within an aerial distance of 15
kilometres for the parameters specifically specified in column
9(III) of Form 1 of the 2006 notification. This was evidently not
done. A careful avi-faunal study was necessary, having due re-
gard to the fact that the proposed project is an airport site. Bear-
ing in mind the profile of airport operations, foraging or nesting
by bird species in and around the airport must not be discarded.
It must be accepted that in a project involving the setting up of
an airport, the EIA report must deal with the impact of the air-
port on birds and likewise the impact of birds on aircraft opera-
tions.  [Paras 88, 90 and 94][976-C-D; G-H; 977-A; 979-A-E]
17. The EIA report ought to have scrutinized the number
of trees, their nature and longevity. Issues such as the extent to
which the trees or some of them were capable of being
transplanted had to be considered in the EIA report. The location
of the trees is also significant. In a given case, if the trees appear
in clusters or in a dense formation in segments of the project
site, it would be necessary to determine whether felling all of
them was necessary for the project to be implemented.
[Para 97][981-G-H; 982-A-B]
18. There was a glaring omission of the factual existence of
as many as
54,676 trees in the EIA report. For project
proponents, the environment may not possess a human voice.
But the purpose of prescribing an EIA report is precisely to
undertake a baseline study on all aspects of the environment and
to anticipate the impact of a projected activity on the environment.
Ignoring any component of the environment amounts to a serious
dereliction of duty which detracts from the rule of law in matters
of environmental governance. [Para 98][982-E-F]
19. The order of the Principal Chief Conservator of Forests
mandating transplantation, where possible, and the plantation of
ten trees for every tree felled provides a measure of rectification.
But there is a reason why issues pertaining to vegetational cover
must be taken seriously in the EIA process. The formula of
planting a set number of trees for every existing tree felled must
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be alive to the fact that the survival of new plantations is replete
with uncertainty. The survival of transplanted trees is equally a
matter of uncertainty.  Though the development of infrastructure
may necessitate the felling of trees, the process stipulated under
the 2006 notification must be transparent, candid and robust. A
regulatory regime for environmental governance is based on the
hypothesis that all stakeholders will act with rectitude. Hiding
significant components of the environment from scrutiny is not
an acceptable modality to secure project approvals. There was a
serious lacuna in regard to disclosures and appraisal on this aspect
of the controversy. [Para 99][982-F-H; 983-A-B]
20. Public consultation involves a process of confidence
building by giving an important role to those who have a plausible
stake.  It also recognizes that apart from the knowledge which is
provided by science and technology, local communities have an
innate knowledge of the environment. The knowledge of local
communities is transmitted by aural and visual traditions through
generations. By recognizing that they are significant
stakeholders, the consultation process seeks to preserve
participation as an important facet of governance based on the
rule of law. Participation protects the intrinsic value of inclusion.
[Para 101][983-E-F]
21. Public consultation cannot be reduced to a mere
incantation or a procedural formality which has to be completed
to move on to the
next stage. Underlying public consultation is
the important constitutional value that decisions which affect the
lives of individuals must, in a system of democratic governance,
factor in their concerns which have been expressed after obtaining
full knowledge of a project and its potential environmental effects.
Apart from the intrinsic value of public consultation, it serves an
instrumental function as well.  The purpose of ascertaining the
views of stakeholders, is to account for all the material concerns
in the design of the proposed project or activity. For this reason,
the process of public consultation involves several important
stages. The Pollution Control Board is under a mandate to forward
the proceedings to the regulatory authority. The project proponent
must address all material environmental concerns and make
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appropriate changes in the draft EIA and Environment
Management Plan (EMP). The project proponent may even
submit a supplementary report to the draft EIA.  Each of these
elements is crucial to the design features of the 2006 notification.
A breach will render the process vulnerable to challenge on the
ground that: (i) significant environmental concerns have not been
taken into account; (ii) there was an absence of a full disclosure
when the EIA report was put up for consultation; and (iii) concerns
which have been expressed by persons affected by the project
have not been adequately dealt with or analysed. [Paras 102 and
103][984-D-H]
Utkarsh Mandal v. Union of India (2009) SCC Online
Del 3836 – relied on.
22. Crucial objections and environmental concerns which
were raised during the consultative process were reduced to a
single issue by the project proponent before the EAC: the need
for employment opportunities. The project proponent failed in
its duty to inform the EAC. The record does not indicate a critical
appraisal or analysis by the EAC. The EAC was duty bound to
apply its mind to the environmental concerns raised by
stakeholders. The duty of the project proponent to place fairly
all the environmental concerns raised during the public hearing
is the crucial link in the appraisal by the EAC. The Minutes of
the meeting indicate that there was no fair and complete disclosure
of the objections which were raised
during the public hearing
before the EAC. There is evidently a failure in the process of
applying and implementing the norms laid down in the 2006
notification in this regard. [Para 107][986-F-H; 987-A-B]
23. Appraisal by the EAC is structured and defined by the
2006 notification. The process of appraisal is defined to mean “a
detailed scrutiny” by the EAC of the application and other
documents like the EIA report and the outcome of the public
consultation, including the public hearing proceedings, submitted
by the applicant to the regulatory authority for the grant of an
EC. The EAC is under a mandate to conduct the process of
appraisal in “a transparent manner”.  On the conclusion of these
proceedings, 
the 
EAC 
has 
to 
make 
“categorical
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recommendations” to the regulatory authority either for: (i) the
grant of a prior environmental clearance on stipulated terms and
conditions; or (ii) the rejection of the application. The
recommendations made by the EAC to the regulatory authority
must be based on “reasons”. [Para 108][987-B-D]
24. The analysis of the EIA report is sketchy and
perfunctory and discloses an abdication of its functions by the
EAC. The requirement that the EAC must record reasons,
besides being mandatory under the 2006 notification, is of
significance for two reasons: (i) The EAC makes a
recommendation to the regulatory authority in terms of the 2006
notification. The regulatory authority has to consider the
recommendation and convey its decision to the project proponent.
The regulatory authority, as para 8(ii) provides, shall normally
accept the recommendations of the EAC. Where it disagrees, it
would request reconsideration, stating the reasons for its
disagreement. In turn, the EAC will consider the observations
of the regulatory authority and furnish its views within a stipulated
period; and (ii) The grant of an EC is subject to an appeal before
the NGT under Section 16 of the NGT Act 2010. The reasons
furnished by the EAC for its recommendation are a basic link in
the ultimate decision of the regulatory authority. They constitute
substantive material which will be considered by the Tribunal
when it considers a challenge to the grant of an EC.
[Para 111][989-H; 990-A-D]
25. The EAC refers to the delay in acquisition proceedings,
a larger public interest and the fact that the project proponent
“has not concealed facts and circumstances”.  Each one of the
reasons which has weighed with the EAC betrays a lack of
comprehension of the true nature of its function under the 2006
notification. The EAC has failed to consider relevant
circumstances bearing on the environmental impact of the project
and has instead considered circumstances extraneous to its
function. That the project proponent, according to the EAC, has
not concealed facts and circumstances is not reason enough to
warrant a grant of an EC. Moreover, even this hypothesis is
incorrect. There is no analysis of the EIA report. The EAC has
failed to answer to the call to its expertise. [Para 112][927-E-G]
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26. Deliberate concealment or the submission of false or
misleading information or data material for screening, scoping,
appraisal or decision on the application makes it liable for
rejection. That the project proponent must submit all information
and data without concealing relevant features is a basic hypothesis
and expectation of the 2006 notification. The EAC has not applied
its mind at all to the environmental concerns raised in relation to
the project nor do its reasons indicate an appraisal of those
concerns by evaluating the impact of the project. [Para 113]
[991-B-D]
27. The EAC is an expert body. It must speak in the manner
of an expert. Its remit is to apply itself to every relevant aspect
of the project bearing upon the environment. It is not bound by
the analysis which is conducted in the EIA report. It is duty bound
to analyse the EIA report. Where it finds it deficient it can adopt
such modalities which, in its expert decision-making capacity,
are required. The reasons which are furnished by the EAC
constitute a live link between its processes and the outomce of
its adjudicatory function. In the absence of cogent reasons, the
process by its very nature, together with the outcome stands
vitiated.  [Para 114][991-D-F]
28. The EAC, as an expert body, has to scrutinize all relevant
aspects of the project or activity proposed, including its impact
on the environment. In taking that decision, the EIA report
is an
input for its analysis. The scrutiny and appraisal has to be
undertaken by the EAC as an expert body and its reasons must
reflect that this has been done. As the Minutes indicate, the non-
application of mind by the EAC is evident with reference to the
presence of 15 ESZs in the study area. The EAC notes that the
project is outside the ESZ delineated by the Kasturirangan
Committee. In the absence of a critical analysis, the EAC failed
in discharging its duties under the 2006 notification. The
recommendations of the EAC furnish a guide for the MoEFCC.
Indeed, the 2006 notification stipulates that the recommendations
of the EAC would normally be accepted. Consequently, a failure
of due process before the EAC, as in the present case, must lead
to the invalidation of the EC.  [Para 116][992-B-E]
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29. In the present case, there was a failure to follow binding
norms under the 2006 notification. There were serious flaws in
the decision-making process.  Relevant material was excluded
from consideration and extraneous circumstances were borne in
mind. The EAC as an expert body abdicated its obligations to
make an expert determination based on reasons. The National
Green Tribunal (NGT) as an adjudicatory body failed to exercise
the jurisdiction entrusted to it under Section 16(h) read with
Section 20 of the NGT Act 2010 by merely deferring to the
decision to recommend and grant an EC. The parameters in regard
to the existence of substantial questions of law have hence been
established in the classical or conventional sense of that
expression. [Para 125][998-D-F]
Vellore Citizens Welfare Forum v. Union Of India (1996)
5 SCC 647 : [1996] 5 Suppl. SCR 241; M C Mehta v
Kamal Nath (1997) 1 SCC 388 : [1996] 10 Suppl. SCR
12; M C Mehta v. Union of India (1997) 2 SCC 353 :
[1996] 10 Suppl. SCR 973 ; A P Pollution Control Board
v. Prof M V Nayudu (Retd.) (1999) 2 SCC 718 : [1999]
1 SCR 235; Narmada Bachao Andolan v. Union of
India (2000) 10 SCC 664 : [2000] 4 Suppl. SCR 94 ;
Indian Council for Enviro Legal Action v Union of
India (2011) 8 SCC 161 : [2011] 9 SCR 146 ; Save
Mon Region Federation v. Union of India  2013 (1) All
India NGT Reporter 1; Shreeranganathan K P v. Union
of India 2014 ALL (I) NGT Reporter (1) (SZ) 1 ;
Lafarge Umiam Mining Private Limited v.
Union of
India (2011) 7 SCC 338 : [2011] 7  SCR 954; Mantri
Techzone Pvt. Ltd. v Forward Foundation (2019) 4
SCALE 218 ; Sir Chunilal v. Mehta and Sons, Ltd. v
Century Spinning and Manufacturing [1962] 3 Suppl.
SCR 549 – referred to.
30. The environmental rule of law provides an essential
platform underpinning the four pillars of sustainable
development— economic, social, environmental, and peace. It
imbues environmental objectives with the essentials of rule of
law and underpins the reform of environmental law and
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governance. The environmental rule of law becomes a priority
particularly when it is acknowledged that the benefits of
environmental rule of law extend far beyond the environmental
sector. While the most direct effects are on protection of the
environment, it also strengthens rule of law more broadly,
supports sustainable economic and social development, protects
public health, contributes to peace and security by avoiding and
defusing conflict, and protects human and constitutional rights.
Similarly, the rule of law in environmental matters is indispensable
“for equity in terms of the advancement of the Sustainable
Development Goals, the provision of fair access by assuring a
rights-based approach, and the promotion and protection of
environmental 
and 
other 
socio-economic 
rights.”
[Para 128][999-A-D]
31. The rule of law requires a regime which has effective,
accountable and transparent institutions. Responsive, inclusive,
participatory and representative decision making are key
ingredients to the rule of law. Public access to information is, in
similar terms, fundamental to the preservation of the rule of law.
In a domestic context, environmental governance that is founded
on the rule of law emerges from the values of Constitution. The
health of the environment is key to preserving the right to life as
a constitutionally recognized value under Article 21 of the
Constitution. Proper structures for environmental
decision
making find expression in the guarantee against arbitrary action
and the affirmative duty of fair treatment under Article 14 of the
Constitution. [Para 140][1004-C-E]
32. The 2006 notification must hence be construed as a
significant link in India’s quest to pursue the Sustainable
Development Goals (SDGs). Many of those goals, besides being
accepted by the international community of which India is a part,
constitute a basic expression of constitutional value system. The
fundamental principle which emerges from interpretation of the
2006 notification is that in the area of environmental governance,
the means are as significant as the ends. The processes of decision
are as crucial as the ultimate decision. The basic postulate of the
2006 notification is that the path which is prescribed for
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disclosures, studies, gathering data, consultation and appraisal
is designed in a manner that would secure decision making which
is transparent, responsive and inclusive. [Para 141][1004-F-G;
1005-A-B]
33. The need for setting up a new airport is a matter of
policy. The role of the decision makers entrusted with authority
over the EIA process is to ensure that every important facet of
the environment is adequately studied and that the impact of the
proposed activity is carefully assessed. This assessment is
integral to the project design because it is on that basis that a
considered decision can be arrived at as to whether necessary
steps to mitigate adverse consequences to the environment can
be strengthened. [Para 142][1005-C-E]
34. In the present case, there has been a failure of due
process commencing from the non-disclosure of vital information
by the project proponent in Form 1. Disclosures in Form 1 are
the underpinning for the preparation of the ToR. The EIA report,
based on incomplete information has suffered from deficiencies
including the failure to acknowledge that within the study area
contemplated by the Guidance manual, there is a presence of
ESZs. [Para 143][1005-D-E]
35. The EAC, as an expert body abdicated its role and
function by taking into account circumstances which were
extraneous to the exercise of its power and failed to notice facets
of the environment that were crucial to its decision making. The
2006 notification postulates
that normally, the MoEFCC would
accept the recommendation of the EAC. This makes the role of
the EAC even more significant. The NGT is an adjudicatory body
which is vested with appellate jurisdiction over the grant of an
EC. The NGT dealt with the submissions which were urged before
it in essentially one paragraph. It failed to comprehend the true
nature of its role and power under Section 16(h) and Section 20
of the NGT Act 2010. In failing to carry out a merits review, the
NGT has not discharged an adjudicatory function which properly
belongs to it. [Para 144][1005-F-H]
36. Thus, neither the process of decision making nor the
decision itself can pass legal muster. Equally, as an area requiring
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balance between development of infrastructure and the
environment, appropriate directions should be issued by this
Court, which would ensure that while the need for a public project
as significant as an international airport is duly factored into the
decision making calculus, such development proceeds on a
considered view of the importance of the prevailing state of the
environment. Bearing in mind the need to bring about a
wholesome balance between the development of infrastructure
of an airport and the preservation of the environment, time bound
directions should be issued. [Para 145][1006-A-C]
37. It would be appropriate if the EAC is directed to revisit
the conditions subject to which it granted its EC on the basis of
the specific concerns which have been highlighted in this
judgment. Such an exercise primarily is for the EAC to carry out
in its expert decision making capacity.  The EAC is entrusted
with that function as an expert body. The role of judicial review is
to ensure that the rule of law is observed. Hence, in exercise of
jurisdiction under Article 142 of the Constitution, EAC is directed
to revisit the conditions for the grant of an EC.  While doing so,
it would be open to the EAC to have due regard to the conditions
which were incorporated in the order of the NGT and to suitably
modulate those conditions in pursuance of the liberty which the
Court has preserved to it.  To facilitate an expeditious
decision,
the EAC is directed to carry out this exercise in a prescribed
time schedule during which period, the EC shall remain
suspended.  After the EAC has formulated its views, they shall
be placed before this Court in a Miscellaneous Application in the
present proceedings, so as to enable the Court to pass final
orders.  The Miscellaneous Application may be filed either by
the State of Goa as the project proponent or by the MoEFCC.
No other Court or Tribunal shall entertain any challenge to the
ultimate decision of the EAC and final orders thereon shall be
passed by this Court in the present proceedings. [Para 146]
[1006-C-G]
Case Law Reference
[1996] 9 Suppl. SCR 982
   referred to
  Para 15 (I)
[2010] 15 SCR 783
   referred to
  Para 20 (iv)
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[1996] 5 Suppl.  SCR 241
               referred to
      Para 117
[1996] 10 Suppl. SCR 12
               referred to
      Para 117
[1996] 10 Suppl. SCR 973
               referred to
      Para 117
[1999] 1 SCR 235
               referred to
      Para 117
[2000] 4 Suppl. SCR 94
               referred to
      Para 117
[2011] 9 SCR 146
               referred to
      Para 117
2013 (1) All India NGT Reporter 1
   referred to
      Para 120
2014 ALL (I) NGT Reporter (1) (SZ) 1  referred to       Para 120
[2011] 7  SCR 954
     referred to       Para 122
(2019) 4 SCALE 218
     referred to       Para 125
[1962] 3 Suppl. SCR 549
     referred to       Para 125
CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 12251
of 2018.
From the Judgment and Order dated 21.08.2018 of the National
Green Tribunal, Principal Bench, New Delhi in Appeal No. 6 of 2018
(earlier Appeal No. 1/2016/WZ)
   WITH
Civil Appeal No.1053 of 2019.
K. K. Venugopal, AG,  Atmaram N.S. Nadkarni, ASG, Datta
Prasad Lawande, Adv. Gen. (Goa), Parag P. Tripathi, Sr. Adv.,
Ms. Anitha Shenoy, Ms. Rashmi Nandakumar, Ritwick Dutta,
Ms. K. V. Bharathi Upadhyaya, Ms. Kanika Sood, Sany Antony,
Ms. Srishti Agnihotri, Pratap Venugopal, Ms. Surekha Raman, N.
Prashant Kumar, Akhil Abraham Roy, Sahil Singh, Ashish Krishnanath
Kuncoliencer, Chinmayee Chandra, Rajesh Shivolker, S. Salvador Rebello,
N. Prashant Nair (for M/s. K J John and Co.), Divya Prakash Pande, G.
S. Makker, Niraj Kumar, S.S. Rebello, Ms.
Suhasini Sen, Suchindran
B. N.,  S. B. Narain, Sriram Srinivasan, Jai A. Dehadrai, Prashant Vaxish,
Ms. Manisha Ambwani  (for M/s. K J John and Co.), Ms. Aastha Mehta,
Mahesh Agarwal, M. S. Ananth, Vanshi Rao, E. C. Agrawala, Annam
D. N. Rao, Advs. for the appearing parties.
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA

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The Judgment of the Court was delivered by
DR. DHANANJAYA Y. CHANDRACHUD, J.
Index
A  Introduction
B  Submissions
C  Scheme of the 2006 notification and the Guidance manual for
  Airports
C.1
EIA process
C.2
Guidance manual for airports
D
Forests
E
Ecologically Sensitive Zones (ESZs)
F
Sampling Points
F.1
Air Quality
F.2
Water Quality
F.3
Noise Quality
F.4
Flora and Fauna
F.5
Felling of Trees
G
Public Consultation
H
Appraisal by the EAC
I
The appellate jurisdiction of the NGT: the requirement
of a merits review
J
Environmental Rule of Law
K
Directions
A
Introduction
1. An appeal was filed before the Principal Bench of the National
Green Tribunal1 at New Delhi challenging the grant of an Environmental
Clearance2 for the development of a greenfield international airport at
Mopa in Goa.  The NGT, by its judgment dated 21 August 2018 came to
1NGT
2EC
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the conclusion that the present case “is not a case where the project
compromises with the environment”. While affirming the EC, the NGT
came to the conclusion that “further safeguards for environmental
protection need to be incorporated”. The NGT, accordingly, proceeded
to formulate additional conditions, while affirming the grant of the EC.
2. Village Mopa is situated in North Goa, in close proximity to the
inter-state boundary which the state shares with Maharashtra. The site
of the proposed airport lies at a distance of 35 kilometres from Panaji,
the capital of Goa. The village of Mopa is situated in Pernem taluka.
The site for the development of the airport is situated on a tabletop
plateau which rises to a height of 150 to 180 meters above mean sea
level and is surrounded by steep slopes. The soil is predominantly of a
laterite character.  The airport which presently serves the region is situated
at Dabolim, Goa.
3. Since the airport at Dabolim is saturated in terms of its capacity
for annual air traffic, the state government initiated a process in 1997 to
commission studies and project reports for a proposed international airport,
which include the following:
(i)     A project report prepared by Engineers and Management Associates,
Spain in 1997;
(ii)    A preliminary technical feasibility study prepared by the Airports
Authority of India in May 1998;
(iii)    A final feasibility report for the proposed airport at Goa prepared
by the International
Civil Aviation Organisation, Montreal, Canada
in August 2005;
(iv)    A Goa dual airport study prepared by the International Civil Aviation
Organisation in August 2007;
(v)    A report of a Six Member Committee chaired by the Chief Minister
of Goa in 2008 to “look into all aspects relating to construction of
an international airport at Mopa, Goa”; and
(vi)   A  document styled as the “Airport Master Plan” dated 10 February
2012, submitted to the Public Private Partnership3 cell of the
Government of Goa by Ammann & Whitney, USA envisaging:
“consultancy services for preparation of master plan, preliminary
3 PPP
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project report, tender document and project management services
for the proposed greenfield airport and commercial/industrial and
allied development near Mopa in the State of Goa”.
4. On 1 May 2000, the Government of India communicated its
approval for the setting up of an airport at Mopa and for the closure of
the existing airport for civilian operations on the commissioning of the
new airport.  Subsequently, on 1 July 2010, the earlier decision was
modified to allow for the continuation of civilian aircraft operations at
Dabolim even after the commissioning of the new airport. The process
of land acquisition commenced in 2008 under the Land Acquisition Act,
1894.  Originally, the land area anticipated for the development of the
project was pegged at 4,500 acres. During the pendency of project
appraisals, the area required for the proposed airport stood reduced to
2,271 acres.
5. On 14 September 2006, the Government of India in the Ministry
of Environment and Forests4 issued a notification5 mandating a prior EC
for Category ‘A’ projects (specified in the Schedule) by the Union
Government and for Category ‘B’ projects at the state level by the State
Level Environment Impact Assessment Authority6.  Following the 2006
notification, the MoEF placed an EIA Guidance Manual for Airports7 in
the public domain in February 2010.  The stages of scoping, public
consultation and appraisal, leading up to the grant of the EC for
the
proposed airport are governed by the express terms of the 2006
notification.
6. In March 2011, the State of Goa, as the project proponent
submitted Form 1 as stipulated in the 2006 notification to the MoEF. On
8 March 2011, the State of Goa applied for Terms of Reference8 to the
MoEF. The ToR were finalized on 11 and 12 May 2011 by the Expert
Appraisal Committee9 constituted under the 2006 notification.  On 1
June 2011, the MoEF issued the ToR for the preparation of the
Environmental Impact Assessment10 report. The ToR was valid for a
4 MoEF, later renamed as MoEFCC in 2014
5 S.O. 1533 (‘2006 notification’)
6 SEIAA
7 Guidance manual
8 ToR
9 EAC
10 EIA
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period of two years until 31 May 2013.  On 22 November 2012, the
Government of Goa revised the project boundary by decreasing the
project area from 4,500 acres to 2,271 acres. At its meetings on 28 and
29 January 2013, the EAC recommended an amendment to the ToR as
requested by the state government and granted an extension to the validity
of the ToR until 31 May 2014.  On 19 June 2013, the MoEF communicated
its approval for the amendment of the ToR and for the extension of its
validity.
7. On 3 October 2014, the state government floated a tender for
the development of a greenfield international airport project on a PPP
basis. On 20 October 2014, the Directorate of Civil Aviation, Government
of Goa submitted a draft EIA report to the Goa State Pollution Control
Board, requesting it to initiate steps to conduct a public hearing.  A public
hearing was conducted at the project site on 1 February 2015.  The
EAC, at its meetings held on 9-11 March 2015, recommended an
extension of the validity of the ToR for another year ending on 31 May
2015.
8.  On 20 May 2015, the State of Goa submitted a final EIA report
to the MoEFCC, seeking the grant of an EC for the project.  On 29 May
2015, the MoEFCC communicated its approval for extending the validity
of the ToR until 31 May 2015. Between 24 and 26 June 2015, the EAC,
at its 149th meeting, deliberated on the EIA report and sought additional
information from the project proponent, inter alia, on:
“10 years data
regarding rainfall in the area;
Drawing of traffic circulation plan for smooth circulation of
Traffic in the area;
Minimum 20% energy conservation measures should be adopted
in incorporating provisions for use of LED, star rated AC’s, and a
revised energy conservation plan to be submitted;
Measures taken to comply with the CPCB guidelines formulated
for noise pollution control in Airport area to be submitted.”
In the meantime, a representation was submitted by the Federation
of Rainbow Warriors, one of the appellants before this Court to the
EAC.  The EAC, at its 151st meeting held on 7-9 September 2015,
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deliberated upon the representation and sought a clarification from the
project proponent on the issues raised.  On 28 September 2015, the
project proponent submitted its reply to the representation. The EAC, at
its 152nd meeting on 20 October 2015, sought a further clarification from
the project proponent on the reply submitted by the Federation of Rainbow
Warriors. At that meeting, the EAC recommended the grant of an EC
for the project.
9. On 28 October 2015, the MoEFCC, as the regulatory authority
under the 2006 notification for Category ‘A’ projects, communicated its
approval for the grant of an EC. Following the grant of the EC, the
tender process which had been initiated on 3 October 2014 was
concluded on 26 August 2016.  Consequent to the opening of the final
bids, a technical scrutiny, evaluation coupled with pre-bid meetings,
deliberations on the draft concession agreement and other required steps,
GMR Goa International Airport Limited11 was awarded the contract on
a revenue sharing of 36.99 percent to the State of Goa. On 8 November
2016, the concession agreement was executed between the Government
of Goa and GGIAL for the development and operation of the airport
with the concession period of 40 years.  Upon financial closure, the
three-year period for the construction of the airport commenced on 4
September 2017.  The target date for the commissioning of the first
phase of the project is 3 September 2020.
10. The grant of the EC was challenged before the Western Zonal
Bench of the NGT12 by the Federation of Rainbow Warriors.  Hanuman
Laxman Aroskar also filed an appeal13 before the Western Zonal Bench
of the NGT. These appeals were subsequently renumbered14 before the
Principal Bench of the NGT at New Delhi. On 7 November 2017, the
NGT issued an ad-interim order restraining the cutting or felling of trees
in the area designated as the site of the proposed airport. On 22
November 2017, the order of restraint was modified on the statement of
the Advocate General of Goa that the state shall not cut or fell any trees,
nor allow it to take place without valid permission from the lawful authority
for a fortnight thereafter in order to enable the appellants to pursue their
11 GGIAL
12 Appeal No. 61 of 2015
13 Appeal No. 1 of 2016
14 Appeal Nos. 5 and 6 of 2018
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remedies.  On 6 February 2018, the Deputy Conservator of Forests
granted permission for felling 21,703 trees at the airport site.  The appellate
authority under the Goa, Daman and Diu Preservation of Trees Act
198415 dismissed the appeal on 7 March 2018.
11. On 8 March 2018, the High Court of Judicature at Bombay at
its seat at Goa set aside the order of the Deputy Conservator of Forests
and remanded the matter to be heard by the Principal Chief Conservator
of Forests. On 2 April 2018, the Principal Chief Conservator of Forests
stipulated several conditions for the cutting and the felling of trees at the
site of the airport including: (i) enumeration of trees; and (ii) the plantation
of ten times the number of trees felled. Upon being moved in a Public
Interest Litigation16, the High Court by its order dated 25 April 2018
allowed the exercise of enumeration to be carried out. As a result, 54,676
trees were enumerated, including the 1,548 trees which had been felled
earlier in terms of the order dated 6 February 2018 of the Deputy
Conservator of Forests. On 13 January 2018, the High Court issued
final directions in the PIL directing the State of Goa to approach the
NGT seeking permission for felling and cutting trees. The state was
directed to carry out the cutting and felling of trees only after prior
permission was granted by the NGT.
12. A Miscellaneous Application17 was filed by the State of Goa
before the NGT on 2 July 2018 seeking permission for the
felling of
trees. By its judgment dated 21 August 2018, the NGT disposed of both
the appeals and the Miscellaneous   Application filed by the State of
Goa, upholding the EC and imposing additional conditions to safeguard
the environment. This Court has been informed that the felling of trees
was initiated on 3 September 2018 and completed on 14 January 2019.
Assailing the judgment of the NGT, two appeals have been filed before
this Court: one by Hanuman Laxman Aroskar18 and the other by the
Federation of Rainbow Warriors19.
13. On 18 January 2019, notice was issued in the appeals and an
order of status quo was passed by this Court. The appeals were admitted
for hearing and final disposal.
15  Act 6 of 1984
16  PIL
17  MA No. 975 of 2018
18  Civil Appeal No. 12251 of 2018
19  Civil Appeal No. 1053 of 2019
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
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B Submissions
14. We have heard Ms Anitha Shenoy, learned counsel appearing
on behalf of the appellants.  Mr K K Venugopal, learned Attorney
General20 for India appeared on behalf of the State of Goa. Mr Atmaram
S Nadkarni, learned Additional Solicitor General21 of India appeared on
behalf of the MoEFCC. Mr Parag P Tripathi, learned Senior Counsel
and Ms Aastha Mehta, learned counsel appeared on behalf of the
Concessionaire.
15. Ms Anitha Shenoy, learned counsel appearing on behalf of the
appellants urged that the EIA report which is carried out under the terms
of the 2006 notification is a tool to evaluate the environmental
consequences of a proposed activity.  The proposed international airport,
being a Category ‘A’ project, is governed by the second, third and fourth
stages of scoping, public consultation and appraisal respectively envisaged
under the 2006 notification. In addition to the 2006 notification, the
Guidance manual furnishes a significant sign post in the procedure
envisaged prior to the grant of an EC. The project proponent is required
to submit Form 1 complete with relevant details of the proposed project
and the status of the environment. The ToR which is finalized by the
EAC is founded on the disclosures which are made by the project
proponent. In this backdrop, the principal submissions urged by the
appellants before the Court are as follows:
(i)     There were material concealments by the project
proponent in
failing to disclose that as many as 54,676 trees were required to be
felled. Form 1, which was submitted by the project proponent,
was silent in regard to the number of trees required to be felled.
The final EIA report, while dealing with the biological environment
in clause 2.1.5 contains the following statement:
“2.1.5 Biological environment
Construction phase
Impacts (Significance-Medium)
The area acquired for proposed airport has only few trees, mainly
bushes.  These will be cleared during site preparation.”
Contrary to the above assertion is the statement contained in the
counter affidavit filed by the State of Goa:
20 AG
21  ASG
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“..I say that the permissions which have been obtained for cutting
of 54,676 trees have been granted by the concerned authorities in
terms of the relevant statutory provisions and after laying down
various conditions.  I say that the context in which it was mentioned
as sparse trees has to be seen from the huge area of the land.
The land being 2133 acres, it would proportionally work out to
about 25 trees in an area of 1 acre, i.e. 4000 sq. metres., which is
one tree in an area of about 160 sq. metres.”
The submission urged by the appellants is that the purpose of the
EIA report is to form an assessment of the state of environment as it
exists in reality.  The project proponent is duty bound to make a proper
disclosure and the highest level of transparency is required. Accompanying
Form 1 is a declaration of the project proponent that the EC will be liable
to be rejected in the event of a suppression or mis-statement of material
facts. The State of Goa filed a Miscellaneous Application before the
NGT seeking permission to fell around 55,000 trees. This is a clear
indicator that the original statement by the project proponent in Form 1
as well as in clause 2.1.5 of the EIA report that only a few trees were
required to be felled is factually incorrect;
(ii)     There was a concealment of Ecologically Sensitive Zones22 in the
State of Maharashtra. In terms of the Guidance manual, primary
data through measures and full surveys; and secondary data from
secondary sources have to be collected.  Primary data includes
the study area within 10 kilometres radius from the Aerodrome
Reference Point23 and covers one season other than the monsoon.
Secondary data includes data collected within an aerial distance
of 15 kilometres for the parameters which are specifically
mentioned in column 9 (III) of Form 1 of the 2006 notification and
covers one full year. In the present case, while furnishing details
of ESZs falling within an aerial distance of 15 kilometres, the EIA
report stipulates that there were none in the State of Maharashtra.
The State of Goa has also averred in its counter that there are no
ESZs within a radius of 15 kilometres from the ARP and that there
are no reserve forests in that radius. After hearings had begun
before the NGT, a letter was addressed by the Principal Chief
Conservator of Forests on 12 February 2018 to the Director of
22 ESZ
23 ARP
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Civil Aviation stating that a list of reserved forests had been notified
under Section 20 of the Indian Forest Act 1927 in Sawantwadi
Forest Division of Sindhudurg district in Maharashtra which was
obtained from the working plan of Sawantwadi Forest Division
(2014-15 to 2023-24). The letter stated that there was no reserved
forest notified under Section 20 of the Indian Forest Act 1927 in
the Sawantwadi Forest Division, within a radius of 15 kilometres
from the ARP. On this aspect, it was urged on behalf of the
appellants that restrictions come into force as soon as a notification
under Section 4 of the Indian Forest Act 1927 is issued. Under the
Forest Conservation Act 1980, any use of forest land for non-
forest purposes requires prior permission of the Union Government,
as elaborated in the judgment of this Court in TN Godavarman
Thirumalpad v Union of India24 (“Godavarman”).  The purpose
of elucidating forest areas which fall within an aerial distance of
15 kilometres from the project site is to enable an assessment to
be made of the impact of the project on forested areas. Failure to
mention forests in the State of Maharashtra was a significant
omission in the EIA report;
(iii)     Form 1 requires a disclosure of the details of ESZs within an aerial
distance of 15 kilometres of the project boundary. The EIA report
rests content in stating that Pernem taluka is not included in an
ESZ by the High Level Working
Group25 constituted under the
Chairmanship of  Dr K Kasturirangan, Member (Science), Planning
Commission26. The project proponent, in response to the disclosures
required for areas which are important or sensitive for ecological
reasons – wet lands, water sources or other water bodies, costal
zone, biospheres, mountains and forests, left the required details
blank.  In this context, it was urged by the appellants that the
purpose of the EIA report was not only to make an assessment of
the project site but also of an area surrounding the project site
within an aerial distance of 15 kilometres. The HLWG recognized
that there were ESZs. In the present case, several villages are
situated at a bare distance of 1.5 kilometres from the project site
in Maharashtra.  Yet, there was no disclosure of this fact and the
EIA report merely recorded that Pernem taluka is not included in
an ESZ;
24 (1997) 2 SCC 267
25 HLWG
26 Kasturirangan report
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(iv)   The State of Maharashtra comprises nearly 40 per cent of the
study area. Yet, there was no sampling of soil, air and water in
Maharashtra. Sampling was carried out in 2011 and 2014-15 in
Goa but no sampling site is situated in Maharashtra.  In the absence
of baseline data generated with regard to environmental parameters
in the State of Maharashtra surrounding the project site, the EIA
report suffers from a gross deficiency; and
 (v)    The EIA report is grossly deficient in failing to notice wildlife in
the surrounding forests.  On the contrary, the appellants have relied
on a rapid survey conducted to assess the presence of various
mammals in the study area.  Moreover, no avi-faunal study was
done.
16. Apart from the above submissions, Ms Shenoy has urged that
the stages of public consultation and appraisal under the 2006 notification
are crucial to the assessment process. As far as the public consultation
is concerned, the draft EIA is given before the hearing. During the course
of the public consultation, as many as 70 persons spoke, 1,150
representations were received and 1,586 persons are stated to have
participated. The range of concerns expressed during the course of the
public consultation covered a variety of environmental issues. Amongst
them was the presence of perennial springs, the porous nature of the
laterite plateau where permeation is a source of drainage for water
collection and the existence of cashew plantations on which the
livelihood
of the local residents depends. Under the 2006 notification, the State
Pollution Control Board27 was required to collate the issues raised and
the response of the project proponent, before submitting required
documents to the EAC. Before the EAC, the project proponent in its
presentation, indicated that the objections were only about employment
opportunities. The project proponent clearly failed in its duty to appraise
the EAC about serious environmental concerns which were raised during
the course of the public consultation.
17. On the aspect of appraisal, it has been urged that the minutes
of the EAC meeting recommending the grant of an EC contain, as learned
counsel for the appellants submitted, “not a line on the EIA report”.  The
EAC was required to state its reasons for recommending the grant of an
EC in terms of the 2006 notification. The reasons must indicate that
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there was an appraisal by the EAC. In the present case, the
recommendations of the EAC are based on vague considerations such
as: (i) larger public interest; (ii) non-concealment of the facts by the
project proponent; and (iii) the delay which had occurred in the process.
The submission urged is that the EAC, as an expert body, has failed to
furnish reasons; acted on the basis of considerations which are not
germane to the exercise of its functions and failed to apply its mind to
relevant considerations including the environmental consequences of the
project.
18. Finally, it has been submitted that under Section 16(h) of the
National Green Tribunal Act 2010,28 an appellate remedy is provided
against the order granting EC.  By virtue of the provisions of Section 20,
the NGT is under a mandate to apply the principles of sustainable
development, the precautionary principle and the polluter pays principle
while passing any order, decision or making the award. An appeal lies
before this Court under Section 22 from an order, decision or award of
the Tribunal on a substantial question of law as specified in Section 100
of the Code of Civil Procedure, 1908. The NGT, by virtue of its
adjudicatory authority under Section 16(h), is entrusted with a duty to
conduct a merits review. The failure to consider materials on a vital
issue constitutes a substantial question of law as does the failure to
consider vital issues in the
proceedings before it. In the present case, the
Tribunal has merely relied on the process conducted by the EAC and its
recommendations, abdicating its own jurisdiction to conduct a merits
review.
19. Mr ANS Nadkarni, learned ASG appearing on behalf of the
MoEFCC urged that the EIA report, besides dealing with environmental
concerns, addresses the impact of the project during both the phases of
construction and operation. The EAC is sourced from experts from
outside the government. The airport project was conceived in 1996;
consultants were appointed and three sites were initially short-listed.  It
was in 2011 that the ToR were sought by and given to the project
proponent by the EAC. The draft EIA was placed for public consultation
in 2014 and the final EIA report came to be submitted in 2015. The EAC
deferred consideration of the EIA report on three occasions, including
among them to consider the representation filed by the Federation of
Rainbow Warriors.
28 NGT Act 2010
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20. Countering the submission of the appellants on the non-
disclosure of reserved forests in Form 1, the learned ASG urged the
following submissions:
(i)      The submission of the appellants was not raised either in the public
hearing or in the grounds urged before the NGT, but was addressed
in the written submissions filed before the NGT and when a map
of the Surveyor General of India was produced;
(ii)     Table 2.1.5 of the EIA report states that there is no reserved forest
in the State of Maharashtra while delineating ESZs within 15
kilometres from the project boundary. The report proceeded on
the plain meaning of the Indian Forest Act 1927 according to which
it is only upon the issuance of a notification under Section 20 that
a reserved forest is declared;
(iii)   As a matter of fact, within the area of 15 kilometres from the
project boundary in the State of Maharashtra, no reserved forest
stands declared under Section 20(2) of the Indian Forest Act 1927;
(iv)   The decision in Godavarman (supra) which adopts the ordinary
meaning of the expression ‘forest’ is site specific: the MoEFCC
follows it scrupulously even if there is a notification under Section
4 while considering the diversion of forest land for non-forest uses.
The decision in Godavarman (supra) has also been explained in
the decision of this Court in Construction of Park at Noida
near Okhla Bird Sanctuary Anand Arya v Union of India29
(‘Okhla Bird Sanctuary’);
(v)    The Guidance manual
notices that environmental facets which
have to be considered in relation to airport development are
categorized into seven groups: (a) land use; (b) water quality; (c)
air quality; (d) noise pollution; (e) biological environment; (f) socio-
economic changes and occupational health; and (g) solid waste
management. Baseline data of these environmental facets is
ascertained through primary data extending to one season while
secondary data extending to a year is gathered in terms of the
Guidance manual and the distance specified in paragraph 4.1; and
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(vi)    The EIA report records that the surrounding land use of the airport
site is predominantly forest land. Land use and land cover
specifically for a 10 kilometre radius from the airport site in
Maharashtra is also set out in Chapter II of the EIA report, which
indicates a reference to the forest area. Annexure IX of the EIA
report incorporates land use with land cover maps, both for Goa
and Maharashtra in the 10 kilometre radius, which includes forested
areas within the State of Maharashtra; Annexure X of the EIA
report elucidates surface water bodies both in Maharashtra and
in Goa in the radius of 10 kilometres while Annexure XI provides
a hydro-geo-morphological map of Goa and Maharashtra.  In other
words, it was urged that: (i) a legally designated forest under the
Indian Forest Act 1927 requires a notification under Section 20;
however, at the same time, (i?i) the EIA report contains a clear
disclosure of the presence of forest areas in both the States of
Goa and Maharashtra within a radius of 10 kilometres including
areas of dense forest.
21. As regards the lack of sampling points in Maharashtra, the
learned ASG urged that while all the six sampling points for ambient air
quality within 10 kilometres of the study area were in Goa, the air quality
which was being tracked was within the stipulated radius and was not
confined to the State of Goa. Similarly, in studying the water environment,
the ground water
quality was measured at four locations in Goa within
10 kilometres of the study area. As regards the monitoring of noise, nine
sampling points were chosen within the State of Goa in accordance with
the Central Pollution Control Board30 guidelines. The monitoring of noise
environment, both at the construction and operational phases, has similarly
been dealt with in the EIA report. The learned ASG urged that the choice
of the sampling locations was not arbitrary: though the sampling points
were not in Maharashtra, data required was tracked across a radius of
10 kilometres from the ARP which also included the State of
Maharashtra.
22. Dealing with the submission that no avi-faunal study was carried
out, it was urged that the EIA report specifically deals with this aspect in
paragraph 4.6 of Chapter II which elucidates that 385 species of plants
belonging to 88 plant families were documented and identified in the 10
kilometres radial distance of the proposed project site. The study similarly
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dealt with faunal diversity. As many as 86 species of birds were observed
in the course of the avi-faunal study, which has been elucidated in table
4.17 of the EIA report.
23. On the issue of ESZs, the learned ASG urged that there is a
specific reference to the Kasturirangan report, under the heading of
‘Environmentally Sensitive Zones’ in Chapter IV of the EIA report.  The
EIA report notices that the proposed airport site falls in Pernem taluka
of North Goa which has not been included in the ESZs mapped by the
HLWG. Annexure XVI of the EIA report is a notification dated 13
November 201331 of the MoEF, which contains a list of villages (state,
district and taluk-wise) identified by the HLWG. Paragraph 9 of the
2013 notification which has been issued under Section 5 of the
Environment (Protection) Act 1986 specifies the categories of new and
expansion projects which are prohibited in the ESZ. The proposed airport
project does not fall within the prohibited category. Moreover, since the
site of the proposed airport was not included in an ESZ, the prohibition
imposed by the 2013 notification had no application.
24. The learned ASG has also urged that the report of the HLWG
on Western Ghats, submitted on 15 April 2013, stipulates certain
development restrictions in ESZs which are as follows:
(i) A complete ban on mining, quarrying and sand mining;
(ii) A complete ban on thermal power projects while hydro power projects
may be permitted subjected to
conditions;
(iii)    A strict prohibition on ‘red category’ industries;
(iv)    A prohibition on building and construction projects of 20,000 square
metres;
(v)    All other infrastructure and development projects/schemes would
be subject to the grant of an EC as Category ‘A’ projects under
the 2006 notification; and
(vi)   All development projects within 10 kilometres of the Western Ghats
ESZ and requiring ECs shall be regulated in accordance with the
2006 notification.
Based on the above recommendation of the HLWG, it was
submitted that the proposed airport project, which falls under Category
31 2013 notification
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‘A’ projects as delineated by the 2006 notification, is regulated by it and
does not attract a blanket prohibition.
25. The submission that the EAC had failed to apprise the
environmental consequences of the project and should have applied its
mind to environmental concerns has been countered by relying on the
Minutes of the meetings conducted by the EAC:
(i)    At  its 149th meeting held on 26 June 2015, the EAC sought additional
information on six distinct aspects upon receiving the presentation
by the project proponent;
(ii)   At its 151st meeting held on 7-9 September 2015, the EAC took
note of a representation filed by the Federation of Rainbow Warriors
and deferred further consideration of proposal for the grant of
EC. The project proponent was called upon to submit a response
to the issues raised in the representation; and
(iii)    At its 152nd meeting held on 20 October 2015, the EAC dealt with
clarifications issued by the project proponent to the concerns raised
by Rainbow Warriors and proceeded to recommend the project
for the grant of an EC subject to the stipulated conditions.
On 28 October 2015, the EC was granted by the Union
Government. On the basis of the procedure which was followed by the
EAC, the following submissions have been urged:
(i)      The application of mind by the EAC can be inferred and seen from
the record;
(ii)     Where considered necessary, the EAC sought information outside
the EIA
report;
(iii)    Having appraised the EIA report, the EAC imposed site specific
conditions; and
(iv)   The EAC consists of experts in the field and once it has been
shown that all relevant considerations were borne in mind, this
Court must give due deference to their view.
26. Mr. K K Venugopal, learned Attorney General, appearing on
behalf of the State of Goa, urged the following submissions:
(i)     The proposed project for setting up an international airport at Mopa
has been on the drawing board for nearly two decades.
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Successive studies were commissioned to assess the feasibility of
the project from diverse sources, both within and outside
government. This includes studies by private organisations as well
as reports by the Airports Authority of India, the International Civil
Aviation Organisation and the six member Committee constituted
by the state government under the auspices of the Chief Minister;
(ii)     The setting up of an airport is an imminent need, since the existing
airport at Dabolim has reached a saturation point and is unable to
cater to the growing volume of passenger traffic into Goa;
(iii)   Tourism, it has been urged, is a major source of revenue for the
state, with the banning of mining activities. A balance must be
drawn between development and the environment.  A distinction
needs to be drawn between overwhelming environmental
objections which are not reversible and incapable of amelioration,
and cases such as the present where the environmental
consequences of project are capable of being countered by
suitable measures; and
(iv)    Objections primarily based on a defect in procedure should not be
sufficient to quash a project conceived in public interest with vast
benefits for the development of the state and for the members of
the travelling public. It was urged that there was no major envi-
ronmental objection and the challenge to the EIA report is not
substantial enough to overcome the interests of three million pas-
sengers. The expected
inflow is anticipated to reach 30 million in
2030.
27. On the aspect of the felling of trees, the learned AG submitted
that following the order of the Bombay High Court, the Principal Chief
Conservator of Forests passed an order on 2 April 2018 providing for: (i)
enumeration of all trees covered by the project site; (ii) issuance of tree
felling permission by the Deputy Chief Conservator of Forests; and (iii)
plantation of ten times the number of trees felled under the supervision
of the forest department. Thereafter, when the High Court was moved
in a PIL, an order was passed on 13 June 2018 that the grant of permission
for felling trees and the actual felling of trees will be carried out only
after the NGT granted permission in the pending proceedings. A
Miscellaneous Application seeking permission for the felling of trees
was instituted before the NGT.  In its final order dated 21 August 2018,
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the NGT disposed of both the appeals as well as the Miscellaneous
Application. Moreover, the NGT has specifically dealt with the felling of
trees in the course of its distinction.
28. On behalf of the concessionaire, Mr Parag P Tripathi, learned
Senior Counsel and Ms Astha Mehta, learned counsel urged that upon
the grant of an EC, a concession agreement was executed by it with the
State of Goa on 8 November 2016. Possession of the project site was
handed over on 4 September 2017 and work commenced on 3 March
2018. The indicative capital for Phase 1 of the development is Rs 1,900
crores while the cost of the entire project is likely to be Rs 3,000 crores.
The State of Goa has incurred a total expenditure of Rs 240 crores for
land acquisition, rehabilitation, road widening, consultancy and other related
aspects while the concessionaire has thus far incurred an expenditure of
Rs 230 crores as on  18 January 2019. 14.06 per cent of the project
work has been completed and a manpower consisting of 1500 persons
has been mobilized at the site together with plant and machinery.
29. The concessionaire has stated that it has tied up with a
consortium of banks and the servicing of the loans is linked to project
milestones.  As on 18 January 2019, the major works in progress include:
(i) site preparation and earth works such as excavation and filling up of
runways, taxiways, aprons and parking bays; (ii) PTB-foundations and
column works; and (iii) excavation of the foundations for the ATC building.
The concessionaire has submitted that apart from the plantation of ten
trees for every single tree which has been felled, the forest department
identified about 500 trees for transplantation, which process is being
carried out. In this background, it has been submitted that the project
should not be interdicted.  The concessionaire, it has been urged, is
committed to the completion of the project which accords with all the
approvals that have been received.
30. The rival submissions now fall for our consideration.
C       Scheme of the 2006 notification and the Guidance manual
for Airports
C. 1   EIA Process
31. The objective of the EIA process is to ensure that
environmental and developmental concerns are appropriately balanced
on the basis of the most accurate information available.
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32. The Constitution (Forty-second Amendment) Act 1976, which
came into force with effect from 3 January 1977, inserted Article 48A to
the Constitution which mandates that the State shall endeavor to protect
and improve the environment and safeguard the forests and wildlife of
the country. Article 51A(g) of the Constitution places a corresponding
duty on every citizen to protect and improve the natural environment
including forests, lakes, rivers and wild life and to have compassion for
living creatures. Following the decisions taken at the United Nations
Conference on the Human Environment held at Stockholm32 in June
1972 in which India participated, Parliament enacted the Environment
Protection Act 1986 to protect and improve the environment and prevent
hazards to human beings, other living creatures, plants and property.
33. On 27 January 1994, the MoEF, in exercise of the powers
conferred by sub-section (1) and clause (v) of sub-section (2) of Section
3 of the 1986 Act read with clause (d) of sub-rule 3 of rule 5 of the
Environment (Protection) Rules, 1986, issued a notification33 imposing
restrictions and prohibitions on the expansion and modernisation of any
activity or new project unless an EC was granted under the procedure
stipulated in the notification. Under the notification, any person
undertaking a new project or expanding and modernizing an existing
project was required to submit an application to the Secretary, Ministry
of Environment and
Forests, New Delhi.
34. The application, which was to be made in accordance with
the Schedule provided in the notification was to be submitted with a
project report which included with it an EIA Report, an Environment
Management Plan34 and the details of a public hearing which had been
carried out in accordance with guidelines issued by the Central
Government from time to time. Limited exceptions to the public hearing
process and the submission of an EIA were provided.
35. MoEF as the Impact Assessment Agency35 would then evaluate
the application and reports submitted. The IAA was empowered to
constitute a committee of experts, if necessary, which would have a
right of entry into and inspection of the site during or after the
commencement of the preparations relating to the project. The IAA
32 Stockholm Conference
33 S.O. 60(E) (‘1994 notification’)
34 EMP
35 IAA
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would prepare a set of recommendations based on the documents
furnished by an applicant within 90 days from the receipt of the
documents and a decision would be conveyed to the applicant within 30
days thereafter. The EC granted was valid for a period of five years and
a successful applicant was required to submit half-yearly reports to the
IAA. Concealing factual data or submitting false or misleading information
would make the application liable for rejection and would lead to the
cancellation of any EC36 granted on that basis.
36. The 1994 notification was amended to reflect the growing
protection accorded to the environment.
37. On 14 September 2006, MoEF released another notification37
in supersession of the previous notification.
38. The 2006 notification directed thus:
“…on and from the date of its publication the required construction
of new projects or activities or the expansion or modernization of
existing projects or activities listed in the Schedule to this
notification entailing capacity addition with change in process and
or technology shall be undertaken in any part of India only after
the prior environmental clearance from the Central Government
or as the case may be, by the State Level Environment Impact
Assessment Authority, duly constituted by the Central Government
under sub-section (3) of section 3 of the said Act, in accordance
with the procedure specified hereinafter in this notification.”
39.
There are significant differences between the 1994 notification
and the 2006 notification. They are:
(i)     The 2006 notification categorically states that an EC must be
granted by the regulatory authority prior to the commencement
of any construction work or preparation of land;
(ii)   The 2006 notification divides all projects into Category ‘A’ and
Category ‘B’ projects. The MoEFCC continues to regulate projects
of a large scale (Category ‘A’), while the SEIAA regulate
comparatively smaller projects (Category ‘B’);
(iii)    Under the 1994 notification, an applicant was required to submit an
application along with all reports including the EIA report at the
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time of the application. Under the 2006 notification, prior to the
preparation of the EIA report by the applicant, the concerned
authority formulates comprehensive ToR on the basis of the
information furnished by the applicant addressing all relevant
environmental concerns. This forms the basis for the preparation
of the EIA report. A pre-feasibility report must also be submitted
with the application unless exempted in the notification. Under the
2006 notification, a draft EIA is first prepared and it is only after
the public consultation process that a final EIA report must be
prepared addressing all the concerns raised during public
consultation;
(iv)    The 2006 notification stipulates the creation of a regulatory body
at the state level – SEIAA comprising members with expertise in
the field of environmental laws which is charged with granting
ECs for Category ‘B’ projects;
(v)    Under the 1994 notification, the final approval was granted by the
IAA. Under the 2006 notification, though the final regulatory
approval is granted by the MoEFCC or the SEIAA, as the case
may be, the approval is to be based on the recommendations of
the EAC functioning in the MoEFCC or the State Expert Appraisal
Committees38 which are constituted for that specific purpose;
(vi)   Under the 2006 notification, the application can be rejected by the
regulatory authority on the basis of the recommendation of the
EAC or the SEAC, as the case may be, at the preliminary stage
itself, prior to public consultation; and
(vii)  Under the 1994 notification, the public hearing process was
overseen by the State Pollution Control Boards39 which would
constitute a public hearing panel for the purpose. Under the 2006
notification, the public consultation process is expanded to include
the receipt of written comments from concerned persons. The
public hearing component was to be overseen by the SPCBs or
the Union Territory Pollution Control Committee40.
38 SEAC
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40. The salient objective which underlies the 2006 notification is
the protection, preservation and continued sustenance of the environment
when the execution of new projects or the expansion or modernization
of existing projects is envisaged. It imposes certain restrictions and
prohibitions based on the potential environmental impact of projects unless
prior EC has been granted by the concerned authority. The EC is required
before any construction work, or preparation of land (except for securing
the land) is started on the project or activity listed in the Schedule to the
notification. The process stipulated under the 2006 notification is
illustrated by the following flow-chart:
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41. Based on the spatial extent of the potential impact and the
potential impacts on human health and natural and man-made resources,
the 2006 notification categorizes all projects into Category ‘A’ and
Category ‘B’ projects. The MoEFCC in the Central Government and
the SEIAA at the state level constitute the regulatory authorities for the
purposes of the notification. Category ‘A’ projects require prior
environmental clearance from the MoEFCC, based on the
recommendation of the EAC constituted by the Central Government for
this purpose. Category ‘B’ projects will require prior environmental
clearance from the SEIAA, based on the recommendations of the SEAC.
Where no SEIAA or SEAC has been constituted, Category ‘B’ projects
are treated as Category ‘A’ projects.
42. Once a prospective site has been identified by the applicant
for the proposed project, all applications seeking an EC shall be made in
the prescribed Form 1 and Supplementary Form 1A41, if applicable. The
application must be submitted prior to the commencement of any
construction activity, or preparation of the land at the site. A pre-feasibility
report must also be submitted with the application except in the cases of
construction projects in item 8 of the Schedule, for which a conceptual
plan must be submitted. The significance of the information furnished by
the applicant in Form 1 shall be explored shortly.
43. The process to obtain environmental clearance as stipulated
by the notification
for new projects42 comprises a maximum of four
stages, all of which may not apply depending on the specific case
stipulated under the notification:
1)
Screening;
2)
Scoping;
3)
Public Consultation; and
4)
Appraisal.
41  Only for construction projects listed under item 8 of the Schedule
42  Applications for EC for expansions or modernization of existing units as stipulated
under the notification are made in Form 1 and shall be considered by the EAC or the
SEAC within 60 days, which will decide on the due diligence necessary including the
preparation of the EIA and public consultations and the application shall be appraised
accordingly for the grant of environmental clearance.
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44. SCREENING – This step is restricted only to Category ‘B’
projects. This stage entails an examination of whether the proposed project
or activity requires further environmental studies for the preparation of
an EIA for its appraisal prior to the grant of an EC. Those projects
requiring an EIA are further categorized as Category ‘B1’ projects and
remaining projects are categorized as Category ‘B2’ projects. Category
‘B2’ projects do not require an EIA. The categorization is in accordance
with the guidelines issued in this regard by the MoEFCC from time to
time.
45. SCOPING – At this stage, the EAC or the SEAC, as the case
may be, formulates detailed and comprehensive Terms of Reference
which address all relevant environmental concerns for the preparation
of the EIA. Amongst other things, the information furnished by the
applicant in Form 1/Form 1A along with the proposed ToR by the applicant
form the basis for the preparation of the ToR. The ToR must be conveyed
to the applicant within 60 days of the receipt of Form 1, failing which,
the ToR proposed by the applicant shall be deemed as approved.
Significantly, applications for EC may be rejected by the regulatory
authority at this stage itself on the recommendation of the EAC or the
SEAC, as the case may be, and the decision along with reasons is to be
communicated to the applicant within 60 days of receipt of application.
46. PUBLIC CONSULTATION – Prior to this
stage, a Summary EIA is
prepared in the format given in Appendix IIIA on the basis of the ToR
furnished to the applicant. This stage involves the process “by which the
concerns of local affected persons and others who have plausible stake
in the environmental impacts of the project or activity are ascertained
with a view of taking into account all the material concerns in the project
or activity design as appropriate.” The detailed procedure is stipulated in
Appendix IV. Subject to the exceptions provided in the 2006 notification,
all Category ‘A’ and Category ‘B1’ projects shall undertake the public
consultation process.
This stage comprises two components:
(i)       A public hearing at the site or in its close proximity – district-wise
to be carried out in the manner prescribed in Appendix IV; and
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(ii)   Procurement of written responses from concerned persons
having a plausible stake in the environmental aspects surrounding
the project.
47. The State Pollution Control Board43 or the Union Territory
Pollution Control Committee44 is charged with conducting the public
hearing in the manner stipulated in Appendix IV and forwarding the
proceedings to the regulatory authority within 45 days of a request from
the applicant. The regulatory authority is empowered to engage another
public agency or authority to carry out the process within a further period
of forty-five days in case the SPCB or the UTPCC does not adhere to
the prescribed time period stipulated in the notification. The public hearing
should be arranged in a “systematic, time bound and transparent manner”
to ensure the “widest possible public participation at the project site(s)
or in its close proximity District-wise”. The public hearing proceeding is
filmed and a copy of the video is submitted to the concerned regulatory
authority.
48.  Within seven days of receiving a written request to initiate
the public consultation process, the SPCB or the UTPCC shall place the
Summary EIA and the application on their website and invite responses.
The concerned authority may also make use of other appropriate media
in addition to publication on their website to ensure wide publicity of the
project. On a written request from any concerned person, the authority
will make available a hard copy of the Draft
EIA for inspection at a
notified place during office hours till the date of the public hearing. A
duty is placed on the authority to forward all responses and comments
received at this stage to the applicant through the quickest available
means.
49.  After the public consultation process, the applicant is duty
bound to address all the material environmental concerns expressed during
the process and make appropriate changes to the Draft EIA and EMP.
The applicant shall then forward the final EIA report to the regulatory
authority to initiate the next stage. Alternatively, the applicant may submit
a supplementary report to the Summary EIA and EMP.
50.  APPRAISAL - This stage involves detailed scrutiny by the EAC
or the SEAC of all the documents submitted by the applicant for the
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grant of EC. The appraisal is carried out in a transparent manner in a
process to which the applicant shall be invited for furnishing clarification
in person or through an authorized representative. Appendix V stipulates
that the following documents are also submitted to the regulatory authority:
(i)  Final EIA Report
(ii)  A copy of the video tape or CD of the public hearing
    proceedings
(iii)  A copy of the final layout plan
(iv)  A copy of the project feasibility report.
51. The regulatory authority must examine the documents “strictly
with reference to the ToR” and communicate any inadequacy to the
EAC or the SEAC, as the case may be, within 30 days of receipt of the
documents. Within sixty days of the receipt of all the documents, the
EAC or the SEAC, as the case may be, shall complete the appraisal
process as prescribed in Appendix V. Within the next fifteen days, the
EAC or the SEAC shall make categorical recommendations to the
concerned regulatory authority to either grant the EC on the stipulated
terms and conditions or reject the application, together with reasons.
The appraisal of projects which are not required to undergo the public
consultation process or the submission of an EIA is to be carried out on
the basis of the prescribed application Form 1 or Form 1A, as applicable.
52. The MoEFCC or the SEIAA shall thereafter consider the
recommendations of the EAC or the SEAC and convey its decision to
the
applicant within 45 days of receipt of the recommendations. The
regulatory authorities shall normally accept the recommendations of
the EAC or the SEAC, as the case may be. Where there is a
disagreement, the regulatory authority shall ask for a reconsideration of
the recommendation within 45 days of the receipt of the recommendations.
This decision shall be conveyed to the applicant. The EAC or the SEAC
shall then reconsider its recommendation within a further period of 60
days and make its recommendations to the regulatory authority. The
regulatory authorities shall then take a decision after considering the
views communicated to it and convey the decision to the applicant within
the next 30 days.
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53. If no decision is communicated to the applicant within the
time prescribed, the applicant may proceed according to the
recommendation of the EAC or the SEAC recommending either the
grant or rejection of the EC. The decision of the regulatory authority and
the final recommendations of the EAC or the SEAC shall be public
documents on the expiry of the prescribed timelines. Deliberate
concealment and/or the submission of false or misleading information
material to the steps involved in the grant of an EC make the application
liable for rejection and cancellation of any EC granted on that basis.
54. The 2006 notification embodies the notion that the development
agenda of the nation must be carried out in compliance with norms
stipulated for the protection of the environment and its complexities. It
serves as a balance between development and protection of the
environment: there is no trade-off between the two. The protection of
the environment is an essential facet of development. It cannot be reduced
to a technical formula. The notification demonstrates an increasing
awareness of the complexities of the environment and the heightened
scrutiny required to ensure its continued sustenance, for today and for
generations to come. It embodies a commitment to sustainable
development. In laying down a detailed procedure for the grant of an
EC, the 2006 notification attempts to bridge the perceived gap between
the environment and development.
55. It is for this
reason that the EAC and SEAC comprise experts
in the field of environmental law. The Chairperson of the EAC shall be
a person who is an “outstanding and experienced environmental policy
expert or expert in management or public administration with wide
experience in the relevant development sector”. Appendix VI to the
2006 notification stipulates that the EAC and the SEAC comprise 15
members who are either ‘experts’ or ‘professionals’. Experts must have
atleast 15 years of relevant experience in the field or an advanced degree
(PhD) with 10 years of relevant experience. Where experts are not
available, professionals may be appointed to the EAC.
56. The EAC and the SEAC are charged with evaluating the
information submitted by the applicant in Form 1/Form 1A and preparing
comprehensive ToR which guide the preparation of the EIA reports.
Given that these bodies comprise experts in the field of environmental
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law, the recommendation of the EAC or the SEAC to grant EC to an
applicant or reject the application is normally accepted by the regulatory
authority.
57. The regulatory authority at the state level (SEIAA) which is
charged with the approval or rejection of an application for EC comprises
three members who possess the qualifications in the field as prescribed
in Appendix VI. Significantly, sub clause (7) of paragraph 3 of the 2006
notification stipulates that all decisions of the SEIAA shall be unanimous
and taken in a meeting. Given the environmental consequences of a
proposed project, no difference of opinion is provided for in the grant of
an EC at the state level. It is further mandated that the project
management submit half-yearly compliance reports to the regulatory
authority in respect of the EC and conditions.
58. Under the 2006 notification, the process of obtaining an EC
commences from the production of the information stipulated in Form 1/
Form 1A. Crucial information regarding the particulars of the proposed
project is sought to enable the EAC or the SEAC to prepare
comprehensive ToR which the applicant is required to address during
the course of the preparation of the EIA. Some of the information sought
is produced thus:
(i)   Construction, operation or decommissioning of the project
involving actions, which will cause physical changes in the locality
(topography, land use, changes in water bodies,
etc.);
(ii)    Use of natural resources for construction or operation of the Project
(such as land, water, materials or energy, especially any resources
which are non-renewable or in short supply);
(iii)   Use, storage, transport, handling or production of substances or
materials, which could be harmful to human health or the environ-
ment or raise concerns about the actual or perceived risks to hu-
man health;
(iv)   Production of solid wastes during construction, operation or de-
commissioning;
(v)    Release of pollutants or any hazardous, toxic or noxious sub-
stances to air;
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(vi)     Generation of noise and vibration, and emissions of light and heat;
(vii)   Risks of contamination of land or water from releases of pollutants
into the ground or into sewers, surface waters, groundwater, coastal
waters or the sea;
(viii)  Risk of accidents during construction or operation of the project,
which could affect human health or the environment; and
(ix)   Environment sensitivity which includes, amongst other things, the
furnishing of the following details:
a. Areas protected under international and national legislation;
b. Ecologically sensitive areas; and
c. Areas used by protected, important or sensitive species of
       f lora or fauna.
59. Under the 2006 notification, the EC process is based on the
information provided by the applicant in Form 1. That the information
provided in Form 1 is crucial can be borne from the following
circumstances:
(i)     The EAC or the SEAC, as the case may be, formulates compre-
hensive ToRs on the basis of the information furnished in Form 1
which addresses all possible environmental concerns. It is on the
basis of the ToR, that further studies and the EIA are carried out
on the impact of the proposed project on the environment;
(ii)     At the appraisal stage, the regulatory authority examines the
documents submitted by the applicant “strictly with reference to
the ToR” and communicates any inadequacy to the EAC or the
SEAC;
(iii)    Category B2 projects, which do not require scoping, are
evaluated
by the SEAC on the basis of the information furnished by the
applicant in Form 1 alone;
(iv)   The appraisal of all projects or activities which are not required to
undergo public consultation, or submit an EIA report, shall be car-
ried out on the basis of the prescribed application Form 1 and
Form 1A as applicable; and
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(v)    An application for extension of the validity of the EC for certain
projects is to be made by submitting a revised Form 1 within the
validity period.
60. The information provided in Form 1 serves as a base upon
which the process stipulated under the 2006 notification rests. An applicant
is required to provide all material information stipulated in the form to
enable the authorities to formulate comprehensive ToR and enable
concerned persons to provide comments and representations at the public
consultation stage. The depth of information sought in Form 1 is to enable
the authorities to evaluate all possible impacts of the proposed project
and provide the applicant an opportunity to address these concerns in
the subsequent study. Missing or misleading information in Form 1
significantly impedes the functioning of the authorities and the process
stipulated under the notification. For this reason, any application made
or EC granted on the basis of a defective Form 1 is liable to be rejected
immediately. Clause (vi) of paragraph 8 of the notification provides thus:
“Deliberate concealment and/or submission of false or misleading
information or data which is material to screening or scoping or
appraisal or decision on the application shall make the application
liable for rejection, and cancellation of prior environmental
clearance granted on that basis. Rejection of an application or
cancellation of a prior
environmental clearance already granted,
on such ground, shall be decided by the regulatory authority, after
giving a personal hearing to the applicant, and following the
principles of natural justice.”
C.2 Guidance manual for airports
61.  In February 2010, the MoEF brought out its Guidance manual
for airports. The need for a sector specific manual arose because the
2006 notification “re-engineered the entire EC process” under its earlier
avatar of 1994 and new sectors were incorporated into the ambit of the
EC process. The 2006 notification noted that as many as 39
developmental sectors require prior ECs. Sector specific manuals, it was
hoped, would bring about standardisation in the quality of appraisal and
obviate potential inconsistencies between the work performed by SEIAAs
and SEACs. Chapter IV of the Guidance manual, which is titled
‘Description of Environment’, prescribes the study area for carrying out
an EIA:
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“Primary data through measurements and field surveys; and
secondary data from secondary sources are to be collected in the
study area within 10 km radius from Aerodrome Reference Point
(ARP). Primary data should cover one season other than monsoon
and secondary data is to cover one full year. The basis for selection
of these criteria is that the aircraft gains a height of 1000ft in this
area below which noise and air pollution are generated maximum
during its take off stage. Secondary data should be collected within
15 km aerial distance for the parameters as specifically mentioned
at column 9 (III) of Form I of EIA Notification, 2006. Details of
secondary data, the method of collection of secondary data, should
be furnished. Similarly, the proposed locations of monitoring stations
of water, air, soil and noise etc should be shown on the study area
map.”
62. Baseline data of environmental parameters which may be
affected by airport activities is collected through primary monitoring in
the study area and through secondary sources. The baseline data facilitates
the evaluation of the predicted impact on environmental attributes in the
study area by using scientific analysis and EIA methodologies. The object
is to also aid in the preparation of an EMP that would outline measures
for improving environmental quality as well as retain the scope for future
expansions in a sustainable manner. The Guidance manual specifically
requires collection of baseline data on
the following: (i) land environment;
(ii) water environment; (iii) air environment; (iv) noise environment; (v)
biological environment; (iv) socio-economic environment and (vii) solid
waste.
The importance of collecting data on land environment is
emphasised in the following extract:
“The terrain and hill slope, general slope and elevation of the area,
the flow direction of streams and rivers, the water bodies and wet
lands and the vegetation which together describe the physiography
of the land, will control the drainage pattern in the region. Land
farms, terrain, may get affected due to construction of airport. It
may require large scale quarrying, dredging and reclamation, which
may cause changes in the topography. This in turn may affect the
drainage pattern of the land / terrain. Baseline data pertaining to
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existing land at the proposed project area including the description
of terrain hill slopes, terrain features, slope and elevation are to be
collected. Study of land use pattern, habitation, cropping pattern,
forest cover, environmentally sensitive places etc., is to be
undertaken by employing remote sensing techniques and ground
truthing. Ecological features of forest area; agricultural land;
grazing land; wildlife sanctuary land & national parks; migratory
routes of fauna; water bodies; and drainage pattern including the
orders of the drain and water sheds are to be described. Settlements
in the study area may be delineated with respect to ARP on the
site map. High rise buildings, industrial areas and zones, slaughter
houses and other features of flight safety importance may also be
marked on the map. Secondary data from Central Water Board
GOI; State ground water department, State Irrigation Department
is to be obtained. Geomorphology of the region is to be clearly
delineated. Study of land use patterns, habitation, cropping pattern,
and forest cover data is undertaken. Information on the location
of water bodies, drainage, forests, surface travel routes with
respect to the project site is obtained within the study area and
plotted on a map. This map will show the natural slopes and the
drainage patterns, which give a guideline while planning the drains
in the airport project. The drains help in discharge of storm
water
from the airport to avoid flooding and water logging in the project
area.”
The study of the water environment is necessitated for the
following reasons:
“Ground water quality is important, as change in its chemical
parameters will affect the water quality. Airport activities during
construction / operation may have impact on ground water quality.
Due to airport construction existing low areas may be reclaimed
with dredged spoil. The pollutants from dredged spoil are likely to
enter into the ground water. This is likely to increase sedimentation
of pollutants in airport area, which may migrate in time to the
neighbouring ground water. Also runoff from solid waste if any,
may percolate into the ground and may contaminate the ground
water. Hence, they need to be studied through primary surveys
and secondary sources. Monitoring locations are to be finalized
as per CPCB norms which can represent the baseline conditions.”
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On the aspect of air environment, the Guidance manual emphasises
that:
“Aircraft engines produce emissions that are similar to other
emissions resulting from any oil-based fuel combustion. These,
like any exhaust emissions, can affect local air quality at ground
level. It is emissions from aircraft below 1,000ft, above the ground
(typically around 3km from departure or, for arrivals, around 6km
from touchdown) that are chiefly involved in influencing local air
quality. These emissions disperse with the wind and blend with
emissions from other sources such as emissions from domestic
sources, emissions from industries and from surface transport.”
Local emissions attributed to aircraft operations at airports include
Oxides of Nitrogen45, Carbon Monoxide46, Hydrocarbons47, Sulphur
Dioxide48, and particulate matter (PM 10 and PM 2.5).
63. The Guidance manual brings into focus the biological
environment. It acknowledges that airport operations may alter eco-
systems, threaten endangered species and disturb the movement and
breeding patterns of wildlife. In this context, the collection of baseline
data on sensitive habitats and wild or endangered species in the project
area is contemplated.  The Guidance manual stipulates thus:
“Airport operations may cause change in local ecosystems,
threaten endangered species, and disturb movements and breeding
patterns of local wildlife.  Airports are located within a variety of
settings (both urban and rural), which support
habitats and species
of their own, some of which will have direct interaction with those
located on the airport and vice versa.  Some local areas will also
be designated for their nature conservation value. The biological
environment of the airport should hence be seen as an integral
component of the wider landscape scale ecological network. To
accomplish this,
Baseline data from field observations for various terrestrial
and aquatic systems are to be generated.
Comparison of the data with authentic past records to under-
stand changes is undertaken.
45 NOx
46 CO
47 HC
48 SO2
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Environmental components like land, water, flora and fauna
are characterized and,
The impact of airport development on vegetation structure in
and around project site is to be understood.
Data on sensitive habitats, wild or endangered species in the
project area also is to be collected from Zoological Survey of India (ZSI),
Botanical Survey of India (BSI), Wildlife Institute of India (WII) and
Ministry of Earth Sciences.  Wildlife symbolizes the functioning efficiency
of the entire eco system.  Just as wild flora needs special treatment for
preservation and growth, wild fauna as well deserves specific
conservatory pursuits for posterity.  As per Wildlife Act (1972), the various
wild animals are enlisted in the schedules of wildlife Act based on the
intensity of threat to them as rare, endangered, threatened, vulnerable
etc. Primary data on survey of the wild animals and birds in the study
area is collected and identified with the classification into various
schedules taken from secondary data.”
64. It is in the backdrop of the 2006 notification and the Guidance
manual that it becomes necessary to assess the process that was adopted
in the present case and its outcome.
D Forests
65. The essence of the challenge to the EC is two-fold:
(i)  Form 1, which was filed by the project proponent, did not
contain any disclosure of the name or identity of forests within an aerial
distance of 15 kilometres. Item  2 under the
heading of ‘Environmental
Sensitivity’ requires a clear disclosure of “areas which are important or
sensitive for ecological reasons – wet lands, water sources or other
water bodies, coastal zone, biospheres, mountains and forests”; and
(ii) Table 2.1 of Chapter II of the EIA report delineates ESZs
within an aerial distance 15 kilometres from the project boundary. For
the State of Goa, the table indicates the presence of forests but not of
protected forests. For the State of Maharashtra, Table 2.1 indicates that
there were neither reserved nor protected forests within 15 kilometres
from the project boundary.
66. The learned ASG made an earnest effort to support this by
urging that a reserved forest is one which is notified under Section 20 of
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the Indian Forest Act 1927. The issuance of a notification under Section
4, it was urged, is indicative only of an intent and a forest stands reserved
under sub-section (2) of Section 20 only upon the issuance of a
notification.  The ASG submitted that the reliance which the appellants
placed on the Survey of India map is misplaced as, in the absence of a
notification under Section 20, a forest cannot be regarded as being
reserved.
In the alternative, it was urged that as a matter of fact, the EIA
report (save and except Table 2.1) takes into account the forest cover
surrounding the site and within the prescribed aerial distance. As regards
Form 1, the learned ASG submitted that at that stage, the project proponent
may not be expected to be aware of all the features of the environment
and hence the omission to refer to forests and other areas which are
sensitive ecologically should be discountenanced.
67. We cannot gloss over the patent and abject failure of the
State of Goa as the project proponent in failing to disclose wet lands,
water sources, water bodies, biospheres, mountains and forests within
an aerial distance of 15 kilometres as required by Form 1.  The disclosure
in Form 1 constitutes the very foundation of the process which is initiated
on the basis of the information supplied by the project proponent.
Following the disclosure in Form 1, ToR are formulated, and this leads to
the preparation of the EIA report. A duty is cast upon the project
proponent
to make a full, complete and candid disclosure of all aspects bearing
upon the environment in the area of study. The project proponent cannot
profess an ignorance about the environment in the study area. The project
proponent is bound by the highest duty of transparency and rectitude in
making the disclosures in Form 1.
68. There can be no manner of doubt that Form 1 is an important
ingredient in the entire process envisaged under the 2006 notification.
Hence, clause (vi) of para 8 of the 2006 notification provides that deliberate
concealment or submission of false or misleading information or data
which is material to screening or scoping or appraisal or decision on the
application shall make the application liable for rejection and lead to the
cancellation of a prior EC granted on that basis. The declaration which
is required of the project proponent is to a similar effect.
69. We are unable to accept the submission that the disclosure
required was of reserved forests comprehended within a notification
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under sub-section (2) of Section 20 of the Indian Forest Act 1927. Form
1 requires a disclosure of areas which are important or sensitive for
ecological reasons, among them, being “forests”.  The expression
“forests” is used without reference to a statutory or artificial definition
and must hence incorporate a meaning which bears upon the ordinary
description of the term. The expression “forests”, means a forest as
commonly understood, without reference to a notification under the Indian
Forest Act 1927 or any other statutory enactment. Such an interpretation
will subserve the purpose of an EIA. The purpose is to ensure that all
relevant facets of the environment are noticed, that base-lines are
documented, and that the potential impact of a project or activity on the
environment is assessed. Forests are forests without reference to
recognition in a statutory form devised for a specific purpose.
70. The need to construe the expression ‘forests’ in a broad and
generic sense was emphasized in the decision of this Court in
Godavarman (supra). This Court held:
“4. The Forest (Conservation) Act, 1980 was enacted with a view
to check further deforestation which ultimately results in ecological
imbalance; and therefore, the provisions made therein for the
conservation of forests and for matters connected therewith, must
apply to all forests irrespective of the nature of ownership or
classification thereof. The word ‘forest’
must be understood
according to its dictionary meaning. This description covers all
statutorily recognised forests, whether designated as reserved,
protected or otherwise for the purpose of Section 2(i) of the Forest
(Conservation) Act. The term ‘forest land’, occurring in Section
2, will not only include ‘forest’ as understood in the dictionary
sense, but also any area recorded as forest in the government
record irrespective of the ownership.”
71.  Subsequently, in Okhla Bird Sanctuary (supra), this Court
explained the position:
“Almost all the orders and judgments of this Court defining “forest”
and “forest land” for the purpose of the FC Act were rendered in
the context of mining or illegal felling of trees for timber or illegal
removal of other forest produce or the protection of national parks
and wildlife sanctuaries.”
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In Okhla Bird Sanctuary (supra), trees had been planted with
an intent to set up an urban park. This Court found it “inconceivable”
that those trees would turn into a forest “within a span of ten to twelve
years and the land, which was for agricultural use would be converted
into forest land”. Hence, the decision was based on a factually
distinguishable situation. The decision emphasises that in construing the
term forest, courts must have due regard both to text and to context.
72. In the context of the 2006 notification and the underlying
purpose of facilitating an EIA report, the expression ‘forests’ must receive
its ordinary and natural connotation. The effort must not be o overlook
and destroy forests but to notice and protect them.
73. Having said this, we must delve into the alternate submission
that the EIA report does, as a matter of fact, consider the prevalence of
forested areas both in Goa and in Maharashtra within the study area. In
this context, para 2 of the Executive Summary introducing the EIA report
acknowledges that the “surrounding land use of the airport site is
predominantly forest land”. In the context of land environment, the EIA
report records that “forest is the predominant land use in the study area”.
The EIA report acknowledges that territories in Maharashtra fall within
one kilometre from the proposed greenfield airport. Villages falling in
Goa and Maharashtra within the 10 kilometre radius were considered
for assessment. Para
2.3.1 of Chapter II deals with land use.  Land use/
land cover statistics for a 10 kilometre radius from the Mopa airport in
the State of Maharashtra have been tabulated. Among them is the
following:
Similarly para 4.4 in Chapter IV, which is titled ‘description of
environment statistically’, provides thus:
“Surrounding land use of the airport site is predominantly forest
land. The northern and eastern side of site is reserve forest areas,
whereas western side is barren and village cultivated land. The
existing land use plan is attached as Annexure IX.”
Sr.No.
Description
Area (Sq.M.)
Area 
(Ha) 
5 
Forest-Tree Clad 
Area- Dense 
66341913.84 
6634.19 
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74. The presence of a “diverse system set as dense and open
forest, cultivated lands, sand dune vegetation, wet lands and human
habitation” is noticed in para 4.6 dealing with the biological environment.
Annexure IX to the EIA report provides land use/land cover maps for
both Goa and Maharashtra in the study area. The maps in Annexure IX
cover forested areas in Maharashtra and Goa within an aerial boundary
of 10 kilometres from the project site. Annexure XI contains the hydro-
geo-morphological maps for Goa and Maharashtra.
75. Though the EIA report adverts to the presence of forests
within the study area in Goa and Maharashtra, we have to consider
whether this by itself warrants the grant of an EC inspite of the fact that
there has been a patent failure on part of the project proponent to make
a transparent and candid disclosure of material facts in Form 1.
Information furnished in Form 1 is crucial to the preparation of the ToR
by the EAC. The EAC comprises of experts. It is constituted, among
other reasons, for the specific purpose of assessing the information
furnished in Form 1 and preparing comprehensive ToR. There is an
intrinsic link between the disclosures in Form 1 which constitute the
basis for formulating the ToR and between the ambit of the EIA report
required by the ToR and the final EIA report. The ToR guide the
preparation of the EIA report. A failure to disclose information in Form
1 impairs the
functioning of the EAC in the preparation of the ToR and
in consequence, leads to preparation of a deficient EIA report.
76. The submission that the EIA report deals with the prevalence
of forested areas and warrants the grant of an EC cannot be accepted
for yet another reason. EACs and SEACs are conferred with the
authority to reject applications for the grant of an EC at the stage of
scoping itself, prior to the preparation of the ToR. The application may
be rejected on the basis of the information furnished by the project
proponent in Form 1. Claiming an EC as a matter of right merely because
the EIA report has assessed parameters that were omitted in Form 1,
bypasses the authority of the EAC and SEAC to reject an application at
the preliminary stage and cannot be countenanced. The regulatory
authority is required to assess the final documents submitted to it “strictly
with reference to the ToR” and communicate to the EAC and SEAC
any discrepancies between the EIA report and the ToR. A deficient ToR
on the basis of the non-disclosure of material information in Form 1
impedes this process.
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77. The failure on part of a project proponent to disclose material
information in Form 1 as stipulated under the 2006 notification has a
cascading effect on the salient objective which underlies the 2006
notification. The 2006 notification represents an independent code with
the avowed objective of balancing the development agenda with the
protection of the environment. An applicant cannot claim an EC, under
the 2006 notification, based on substantial or proportionate compliance
with the terms stipulated in the notification. The terms of the notification
lay down strict standards that must be complied with by an applicant
seeking an EC for a proposed project. The burden of establishing
environmental compliance rests on a project proponent who intends to
bring about a change in the existing state of the environment. Whereas,
in the present case, there has thus been a patent failure on part of the
project proponent to make mandatory disclosures stipulated in Form 1
under the 2006 notification, that must have consequences in law. There
can be no gambles with the environment: a ‘heads I win, tails you lose’
approach is simply unacceptable; unacceptable if we are to preserve
environmental governance under the rule of law.
E    Ecologically Sensitive Zones (ESZs)
78. The substratum of the case of the appellants is based on the
following extract contained in the EIA report:
“Ecologically Sensitive Zones Ministry of Environment and Forests
had constituted a High
Level Working Group (HLWG) under the
Chairmanship of Dr. K. Kasturirangan, Member (Science),
Planning Commission vide office order dated 17.08.2012 to study
the preservation of the ecology, environmental integrity and holistic
development of the Western Ghats in view of their rich and unique
biodiversity. HLWG submitted its report to the MoEF on 15th
April 2013. HLWG identified 37% of natural landscape having
high biological richness, low forest fragmentation, low population
density and containing Protected Areas, World Heritage Sites and
Tiger and Elephant corridors as an Ecologically Sensitive Areas
(ESA). The present proposed airport site is falling under Pernem
taluka of North Goa district. The Pernem taluka has not been
included in the Ecologically Sensitive Areas submitted by HLWG.
The MoEF order on ESA is attached as Annexure XVI.”
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According to Ms Shenoy, the EIA report notices the Kasturirangan
report submitted on 15 April 2013. The submission is that the EIA report
has conveniently glossed over the areas adverted to by the Kasturirangan
report as an ESZ. This includes those areas which fall within the study
area on the ground that Pernem taluka, where the project site is situated,
has not been included as an ESZ. In this context, reliance is placed on a
draft notification dated 3 October 2018 issued by MoEFCC under which
the Union Government has proposed to notify 56,825 square metres
spread across six states – Gujarat, Maharashtra, Goa, Karnataka, Kerala
and Tamil Nadu as the Western Ghats ESZ. The preamble to the draft
notification adverts to the steps taken by the Union Government between
2013 and 2016 in pursuance of the report of the HLWG. This includes
draft notifications issued on 10 March 2014 and 4 September 2015. The
draft notification dated 3 October 2018 emphasises the importance of
the Western Ghats as a global biodiversity hot spot:
“WHEREAS, Western Ghats is an important geological landform
on the fringe of the west coast of India and it is the origin of
Godavari, Krishna, Cauvery and a number of other rivers and
extends over a distance of approximately 1500 kilometres from
Tapti river in the north to Kanyakumari in the south with an average
elevation of more than 600 metres and traverses through six States
namely, Gujarat,
Maharashtra, Goa, Karnataka, Kerala and Tamil
Nadu;
AND WHEREAS, Western Ghats is a global biodiversity hotspot
and a treasure trove of biological diversity and it harbours many
endemic species of flowering plants, endemic fishes, amphibians,
reptiles, birds, mammals and invertebrates and it is also an
important center of evolution of economically important
domesticated plant species such as pepper, cardamom, cinnamom,
mango and jackfruit;
AND WHEREAS, Western Ghats has many unique habitats
which are home to a variety of endemic species of flora and fauna
such as Myristica swamps, the flat-topped lateritic plateaus, the
Sholas and wetland and riverine Eco-systems;
AND WHEREAS, UNESCO has included certain identified parts
of Western Ghats in the UNESCO World Natural Heritage List
because Western Ghats is a Centre of origin of many species as
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also home for rich endemic biodiversity and hence a cradle for
biological evolution;”
79. Ms Shenoy has emphasised that sixteen villages in the Taluka
of Sawantwadi of the district of Sindhudurg which fall within the study
area have been mapped as an ESZ in the annexure to the draft notification
dated 3 October 2018. They are:
80. A comparison of the above villages with Annexure IX of the
EIA report indicates that several of the above villages which have been
mapped as ESZs in the draft notification fall within the 10 kilometre
buffer from the project site. Hence, the submission of Ms Shenoy merits
a close analysis.
81. The EIA report has rested content with the observation that
Pernem taluka, where the project site is situated, is not an ESZ. That is
not sufficient or adequate, since the purpose of the EIA report is to
make an assessment of ESZs which fall within the study area. Mr
Nadkarni’s response to the above submission is that: (i) neither the Mopa
plateau nor Pernem taluka constitute a part of the Western Ghats; (ii)
the HLWG chaired by Dr Kasturirangan recommended a prohibition of
specified activities while for other activities, the 2006 notification was
“State
District
Taluk
Village Name
Maharashtra
Sindhudurg
Sawantwadi
Tamboli
Maharashtra
Sindhudurg
Sawantwadi
Kumbhavade
Maharashtra 
Sindhudurg 
Sawantwadi 
Degave 
Maharashtra 
Sindhudurg 
Sawantwadi 
Banda 
Maharashtra 
Sindhudurg 
Sawantwadi 
Padve Majgaon 
Maharashtra 
Sindhudurg
Sawantwadi 
Ronapal 
Maharashtra
Sindhudurg
Sawantwadi
Padve
Maharashtra
Sindhudurg
Sawantwadi
Dandeli
Maharashtra
Sindhudurg
Sawantwadi
Madura
Maharashtra 
Sindhudurg 
Sawantwadi 
Dingne 
Maharashtra 
Sindhudurg 
Sawantwadi 
Aros 
Maharashtra 
Sindhudurg 
Sawantwadi 
Galel 
Maharashtra 
Sindhudurg 
Sawantwadi 
Kondure 
Maharashtra
Sindhudurg
Sawantwadi
Satarda
Maharashtra
Sindhudurg
Sawantwadi
Dongarpal
Maharashtra 
Sindhudurg 
Sawantwadi 
Sateli 
Tarf 
Soundal” 
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required to be followed; (iii) the EIA report, while considering the project,
has also adverted to the Kasturirangan report; and (iv) infrastructure
projects except in the prohibited category are permissible, subject to an
EIA.
82. The report of the HLWG dated 15 April 2013 recommends
that there should be a complete ban on mining, quarrying and sand mining
activity in the ESZ. Similarly, it recommends that no thermal power project
should be allowed in ESZs and that all ‘red category’ industries should
be strictly banned. Building and construction projects of 20,000 square
metres and above should not be allowed. However, all other infrastructure
and development projects, which have been recommended, should be
subject to the grant of ECs under Category ‘A’ projects of the 2006
notification.
83. The Union Government issued a notification on 13 November
2013 in pursuance of Section 5 of the Environment (Protection) Act
1986 to the effect that from the date of the issuance of those directions,
no pending case or fresh case shall be considered by the EACs/MOEF
or SEACs/SEIAAs covering the following industries:
(a) Mining, quarrying and sand mining;
(b) Thermal power plants;
(c) Building and construction projects of 20,000 square metres
area and above;
(d) Township and area development projects with an area of 50
hectares and above and/or with a built-up area of 1,50,000 square metres
and above; and
(e) ‘Red category’
industries.
84. The submission of the ASG is that there is no prohibition on
setting up a Category ‘A’ project in an ESZ.  An infrastructure project
such as an airport does not fall within the range of prohibited activities.
What is necessary is that the project must be assessed in terms of the
2006 notification.
85. The glaring deficiency which emerges from the EIA report is
its failure to notice the existence of ESZs within a buffer distance of 10
kilometres of the project site. On one hand, the EIA report takes note of
the HLWG report dated 15 April 2013. But, on the other hand, the EIA
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report ignores the existence of ESZs within the study area on the ground
that the project site is not situated in an ESZ. That, as we have seen,
can never be accepted as an adequate response. The purpose and object
of the EIA report is to map areas, understand their vulnerabilities, and
conduct a study on a scientific basis of the impact of the proposed project
on an ecologically sensitive terrain. The EIA report fails to meet a classical
requirement of administrative law: to take into account a relevant
consideration namely, that within the study area which has to be
considered, there is the presence of ESZs.
86. In deducing the impact of a proposed activity on an ESZ, it is
not sufficient to take recourse to a generic assessment of a proposed
activity on the ecology of the study area. The EIA report must factor in
those specific features which make an area ecologically sensitive. These
would encompass all aspects of environmental concern which render
the area ecologically sensitive. This would include wet lands, water
sources, water bodies, costal zones, biospheres, mountains and forests.
The vulnerabilities of each of them must be studied as distinctive
components together with a holistic analysis of their existence in a chain
of bio-diversity. Where an area is ecologically sensitive because of the
presence of flora or fauna requiring protection, that must be specifically
adverted to and studied. The deficiency of the EIA report emanates
from its
failure to notice that the purpose of the study was not only to
determine whether the project site is ecologically sensitive.  Confining
itself to this aspect, the EIA report failed to consider a crucial and relevant
consideration.
F    Sampling Points
87. The submission of the appellants is that the Guidance manual
requires the collection of primary data through measures and field studies
in the study area within 10 kilometres radius from the ARP.  Secondary
data has to be collected within a 15 kilometres aerial distance for the
parameters mentioned in Colum 9(III) of Form 1 of the 2006 notification.
In the present case, it was urged that not a single sampling station with
reference to any of the parameters is situated in Maharashtra. As a
result, no sampling sites for any of the parameters fall within 40% of the
study area.  Consequently, no primary data collection was done despite
the carrying out of two samples in 2011 and 2014 respectively. In response
to this submission, it has been urged that all sampling points were based
on para 4.1 of the Guidance manual.  As a result, it was submitted that
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areas within Goa and Maharashtra were studied along with impact
studies.  In order to assess the submission, it is necessary to refer to
relevant aspects of the EIA report:
F.1 Air quality
88. In order to study the ambient air quality in terms of Suspended
Particulate Matter, Respirable Particulate Matter, SO2, NOX, CO and
HC, Ambient Air Quality monitoring stations were set up at six loca-
tions. They are at Sinechaadvin, Katwal, Mopa village, Pernem, Nagzor
and Patradevi. All are in Goa. The location at Patradevi was on the
border shared by Goa with Maharashtra. The study area extended to a
radial distance of 10 kilometres from the ARP. We accept the submis-
sion of the ASG that they would hence cover areas falling within both
Goa and Maharashtra. Para 4.1.2 of Chapter IV of the EIA report sets
out the baseline data collected at the monitoring stations.  Since the
entire study area within a radius of 10 kilometres was considered for
monitoring air quality, we accept the submission that the location of the
sampling points within Goa did not preclude the monitoring of air quality
within the study area.
F.2 Water quality
89. Para 4.2 of the EIA report states that ground water quality
was measured at four locations: Mopa village, Pernem, Dargal and
Patradevi marked within 10 kilometres of the study area. The surface
water quality was measured at three locations: Chapora river, Tiraikol
river and Nala near Mopa village
within 10 kilometres of the study area.
The impact assessment is contained in the EIA report. The Mopa plateau
is at a height of 155 metres above mean sea level and water from the
plateau flows down to the rivers in the State of Goa.  The laterite plateau
is an important source of drainage by providing natural channels for
water. The impact of a greenfield airport on the closing of natural channels
which feed the water bodies has not been scientifically mapped or studied.
F.3 Noise quality
90. While monitoring the noise quality, the EIA report covered a
radius of 10 kilometres. In order to obtain baseline data of noise quality,
nine monitoring stations were chosen in the study area.  While it is true
that all nine locations were situated in the State of Goa, one (Patradevi)
was situated on the border shared between Goa and Maharashtra.  The
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EIA report contains an impact study and the study area covered includes
both the states.
F.4 Flora and fauna
91. The EIA report indicates that the area surrounding the site for
the proposed airport has dense forests49.  These total up to nearly 6,634.19
hectares50. Ms Shenoy has urged that it is impossible that the fauna
found by the project proponent through both primary sampling and
secondary sources was only limited to animals such as: domestic dog,
cat and cattle, common house mouse, rat and mongoose, jackal and the
three striped palm squirrel. This, in her submission, is a clear indication
that the EIA report is faulty and clearly incorrect.
92. While dealing with the above submissions, it is necessary to
note that the Guidance manual contains a specific reference to the
collection of data of sensitive habitats and wild/endangered species in
the project area. The Guidance manual stipulates thus:
“Data on sensitive habitats, wild or endangered species in the
project area also is to be collected from Zoological Survey of
India (ZSI), Botanical Survey of India (BSI), Wildlife Institute of
India (WII) and Ministry of Earth Sciences. Wildlife symbolizes
the functioning efficiency of the entire eco system.  Just as wild
flora needs special treatment for preservation and growth, wild
fauna as well deserves specific conservatory pursuits for
posterity”.
93. The grievance is that no data has been collected from the
State of Maharashtra and all secondary data
collected by the project
proponent related only to the State of Goa.  There is substance in the
submission which has been urged on behalf of the appellant. A reading
of the counter affidavit filed by the State of Goa would seem to support
the appellant’s submission. It is stated:
“I say that several recognised publications and research papers
were referred to in order to verify and assess the data collected,
to name a few of the publications:
i. Birds of Goa by Heinz Lainer & Rahul Alvares;
49 See for instance para 2.0 of the executive summary and para 2.3.1 of Chapter I
50,  See Para 2.3.1, Chapter II
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ii.The Goan Jungle Book by Nirmal Kulkarni;
iii. A photographic guide to Butterflies of Goa by Parag Ragnekar;
iv. Flora of Goa, Diu, Daman, Dadra and Nagarhaveli (Vol.1) by
  RS Rao;
v. Flora of Goa, Diu, Daman, Dadra and Nagarhaveli (Vol.2) by
 RS Rao;
vi. Red data book published by Botanical Survey of India;
vii. Study materials published in Goa ENVIS Centre were also
   referred.”
The appellant, on the other hand, has sought to rely upon several
independent studies including the following:
“a. A rapid survey to assess mammal presence at Barazan Plateau,
Mopa, Goa, India conducted by Girish Punjabi (Wildlife Biologist)
and Atul S Borker (Full Member of IUCN/SSC Otter Specialist
Group) that Schedule I species such as gaur, leopard and Indian
Pangolin; Schedule II species such as giant squirrel, common palm
civet; Schedule III species such as sambar, wild pig and Schedule
IV species such as Indian hare, Indian porcupine.
The report also mentions the presence of the Sawantwadi –
Dodamarg wildlife corridor within the 10 km proposed project
site.
b. Report on one day survey conducted to find evidence of Otter
presence at Mopa, Goa conducted by Atul Borker (Full Member
of IUCN/SSC Otter Specialist Group) that found that a perennial
stream on the plateau had presence of the smooth coated otter,
that falls within Schedule II of the Wildlife (Protection) Act, 1972.
c. Report on two days survey to find evidence of plant and
bird
species at Mopa Plateau conducted by Aparna Watve (Ecologist)
and Sanjay Thakur (Wildlife Biologist) that found Schedule I species
such as the Indian peafowl and the Dipcadi concanese which is
critically endangered.  The study clearly mentions that the EIA
study is entire deficit as it does not accurately consider the flora
and fauna of the area as well as the number of trees to be cut.”
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94. We find that the collection of both primary and secondary
data of fauna in the EIA report was perfunctory. The primary study is
not based on data collected from acknowledged sources such as the
Zoological Survey of India, Wildlife Institute of India and Ministry of
Earth Sciences as required under the Guidance manual. Similarly, as
regard avi-faunal studies, the EIA report lists 385 plant species in table
4.15 of Chapter IV, titled ‘Description on Environment’.  It also states
that 86 species of birds were observed during the survey in the 10
kilometre study area from the proposed site. Column 9 (III) of Form 1
refers to “areas” in the following terms:
“areas which are used by protected, important or sensitive species
of flora or fauna for breeding, foraging, nesting, resting, over
wintering or migration”.
The above column was left blank by the project proponent in Form
1. According to the Guidance manual, secondary data has to be collected
within an aerial distance of 15 kilometres for the parameters specifically
specified in column 9(III) of Form 1 of the 2006 notification. This was
evidently not done. A careful avi-faunal study was necessary, having
due regard to the fact that the proposed project is an airport site. Bearing
in mind the profile of airport operations, foraging or nesting by bird species
in and around the airport must not be discarded. It must be accepted that
in a project involving the setting up of an airport, the EIA report must
deal with the impact of the airport on birds and likewise the impact of
birds on aircraft operations.
F.5 Felling of Trees
95. Para 2.1.5 of the executive summary to the EIA report deals
with the biological environment.  Para 2.1.5 stipulates thus:
“The area required for proposed airport has only few trees,
mainly bushes. These will be cleared during site preparation.”
                                                  (Emphasis supplied)
Similarly, Chapter II which deals with project description specifies
in para 2.3.1 that “vegetation and trees are sparse at the site”.
That the trees which were required to be felled were far from “few” is
evident from the reply filed by the State of Goa in the present proceedings
where it has been stated that permissions were granted for the felling
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of 54,676 trees. The EIA report ignored them. The submission in the
EIA report that there were only sparse trees is sought to be explained by
the state from the perspective of the large area of the land proposed for
the project. It is sought to be explained that since the total area is 2,133
acres, the number of trees would proportionately work out to about 25
trees in an area of one acre (about one tree in an area of 160 square
metres).  In terms of the order passed by the Bombay High Court in the
PIL, to which we have adverted earlier, the Principal Chief Conservator
of Forests, Goa passed an order on 2 April 2018 providing for (i) the
enumeration of all trees; (ii) exploring the possibility of transplanting
existing trees which could be safely transplanted into ground areas; (iii)
issuance of tree cutting permission by the Deputy Conservator of Forests;
and (iv) planting of ten times the number of trees felled by the
concessionaire under the supervision of the Forest Department.
96. On 6 February 2018, the Deputy Conservator of Forests had
granted permission for felling of 21,703 trees. Following the dismissal of
an appeal under Section 15 of the Goa, Daman and Diu Preservation of
Trees Act 1984 filed by the Federation of Rainbow Warriors, a Writ
Petition was filed before the Bombay High Court51. The High Court set
aside the order of the Deputy Conservator of Forests and remanded the
proceedings to the Principal
Chief Conservator who passed the order
which has been noted above. Following the order of the Principal Chief
Conservator, 54,676 trees were enumerated. The competent authority
granted permission for the felling of trees thereafter on the following
dates: (i) 1,422 trees by an order dated 20 April 2018; (ii) 18,408 trees by
an order dated 24 July 2018 and (iii) 33,298 trees by an order dated 1
October 2018. Following this exercise, the felling of trees was completed
on 18 January 2019.  The Bombay High Court having directed that the
order of the Principal Chief Conservator of Forests shall be subject to
the specific permission of the NGT in the pending proceedings, a
Miscellaneous Application was moved before the NGT. While disposing
of the main appeal, the NGT also disposed of the Miscellaneous
Application and under the head of ‘Biological Environment’, the following
directions have been issued:
51 WP No. 1 of 2018
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“E. Biological Environment
1. Efforts be made to transplant the trees to other locations in the
same vicinity by using appropriate mechanical devices which are
available these days.
2. Efforts be made to plant indigenous species which are tall in
size rather than small saplings.
3. Concerns have been raised by appellants with regard to plant
species ‘Dipcadi concanense’ which has been claimed to be a
threatened plant.  This claim of the appellants have been negated
by the respondent by producing a documentation of Botanical
Survey of India, Western Regional Centre, Pune, Maharashtra
titled as “A Note on Occurrence and Distribution of Dipcadi
concanense”.  By invoking Precautionary Principle, we direct the
Project Proponent to draw up a Conservancy by Plan/Scheme
for ‘Dipcadi concanense’ in collaboration with Forest Department,
State of Goa and Botanical Survey of India and ensure its imple-
mentation.”
 97. We express our serious displeasure with the manner in which
the EIA report made an attempt to gloss over the existence of trees.
The EIA report prevaricated by recording that the area required for the
proposed airport has only a few trees, mostly bushes. The EIA report
states that vegetation and trees are sparse at the site. A photograph and
a google map image are put forth as illustrations in figure 2.3 of Chapter
II. To realise later that the project involved the felling of 54,676 trees is
indicative of the cavalier approach to the issue and a
process of fact
finding which is parsimonious with the truth. Post facto explanations
are inadequate to deal with a failure of due process in the field of
environmental governance. The State of Goa would have us gloss over
the felling of trees by submitting that 54,676 trees over a project area of
2,133 acres averages out to 25 trees per acre or one tree over an area of
160 square metres. This is a fallacious approach to the issue.  Mathematical
averages cannot displace factual data about the actual number of trees
which were affected by the project. The EIA report ought to have
scrutinized the number of trees, their nature and longevity. Issues such
as the extent to which the trees or some of them were capable of being
transplanted had to be considered in the EIA report. The location of the
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trees is also significant. In a given case, if the trees appear in clusters or
in a dense formation in segments of the project site, it would be necessary
to determine whether felling all of them was necessary for the project to
be implemented.
98. In the written submissions which have been filed by the State
of Goa, it has been submitted that of the 54,676 tees which were felled:
(i) 32,193 trees representing 59% had a girth of 30 to 50 centimeters; (ii)
19,903 trees representing 36% had a girth of 50 to 100 centimeters; and
(iii) ‘only 2,580 trees’ had a girth exceeding 100 centimeters. The Goa,
Daman and Diu Preservation of Trees Act, 1984 defines the expression
“tree” in Section 2(j) in the following terms:
“S. 2(j) - “tree” means any woody plant whose branches spring
from and are supported upon the trunk or the body and whose
trunk or body is not less than ten centimeters in diameter at a
height of one meter from the ground level and includes coconut
palm.”
This definition has been highlighted to indicate that it incorporates
a stringent meaning of the expression ‘trees’. The point, however, is
simple: there was a glaring omission of the factual existence of as many
as 54,676 trees in the EIA report. For project proponents, the environment
may not possess a human voice. But the purpose of prescribing an EIA
report is precisely to undertake a baseline study on all aspects of the
environment and to anticipate the
impact of a projected activity on the
environment. Ignoring any component of the environment amounts to a
serious dereliction of duty which detracts from the rule of law in matters
of environmental governance.
99. The order of the Principal Chief Conservator of Forests
mandating transplantation, where possible, and the plantation of ten trees
for every tree felled provides a measure of rectification. But there is a
reason why issues pertaining to vegetational cover must be taken seriously
in the EIA process. The formula of planting a set number of trees for
every existing tree felled must be alive to the fact that the survival of
new plantations is replete with uncertainty. The survival of transplanted
trees is equally a matter of uncertainty.  Though the development of
infrastructure may necessitate the felling of trees, the process stipulated
under the 2006 notification must be transparent, candid and robust. A
regulatory regime for environmental governance is based on the
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hypothesis that all stakeholders will act with rectitude. Hiding significant
components of the environment from scrutiny is not an acceptable modality
to secure project approvals. There was a serious lacuna in regard to
disclosures and appraisal on this aspect of the controversy.
G   Public Consultation
100. The importance of public consultation is underscored by the
2006 notification.  Public consultation, as it states, is “the process by
which the concerns of local affected persons and others who have a
plausible stake in the environmental impacts of the project or activity are
ascertained with a view to take into account all the material concerns in
the project or activity design as appropriate”. This postulates two
elements. They have both, an intrinsic and an instrumental character.
The intrinsic character of public consultation is that there is a value in
seeking the views of those in the local area as well as beyond, who have
a plausible stake in the project or activity. Public consultation is a process
which is designed to hear the voices of those communities which would
be affected by the activity. They may be affected in terms of the air
which they breathe, the water which they drink or use to irrigate their
lands, the disruption of local habitats, and the denudation of environmental
eco-systems which define their existence and sustain their livelihoods.
101. Public consultation involves a process of confidence building
by giving an important
role to those who have a plausible stake.  It also
recognizes that apart from the knowledge which is provided by science
and technology, local communities have an innate knowledge of the
environment. The knowledge of local communities is transmitted by aural
and visual traditions through generations. By recognizing that they are
significant stakeholders, the consultation process seeks to preserve
participation as an important facet of governance based on the rule of
law. Participation protects the intrinsic value of inclusion.
102. The 2006 notification postulates:
(i) A public hearing at or in close proximity to the project site to
 ascertain the views of “locally affected persons”;
(ii) Obtaining written responses from “other concerned”
  individuals having a “plausible stake” in the environmental
  aspects of the project or the activity;
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(iii) The duty of the SPCB to conduct hearings and to forward the
    proceedings to the regulatory authority within the stipulated
    time;
(iv) Placing on the website of the Pollution Control Board a
   summary of the EIA report in the prescribed format and the
   making available of the draft EIA report by the regulatory
   authority on a written request by any person concerned, for
   inspection;
(v) The duty of the applicant to address all material concerns
   expressed during the process of public consultation;
(vi) The making of appropriate changes in the draft EIA and EMP;
   and
(vii) The submission of the final EIA report by the applicant to the
    regulatory authority for appraisal.
Each of these features is crucial to the success of a public
consultation process. Public consultation cannot be reduced to a mere
incantation or a procedural formality which has to be completed to move
on to the next stage. Underlying public consultation is the important
constitutional value that decisions which affect the lives of individuals
must, in a system of democratic governance, factor in their concerns
which have been expressed after obtaining full knowledge of a project
and its potential environmental effects.
103. Apart from the intrinsic value of public consultation, it serves
an instrumental function as well.  The purpose of ascertaining the views
of stakeholders, is to account for all the material concerns in
the design
of the proposed project or activity. For this reason, the process of public
consultation involves several important stages. The Pollution Control
Board is under a mandate to forward the proceedings to the regulatory
authority. The project proponent must address all material environmental
concerns and make appropriate changes in the draft EIA and EMP. The
project proponent may even submit a supplementary report to the draft
EIA.  Each of these elements is crucial to the design features of the
2006 notification. A breach will render the process vulnerable to challenge
on the ground that: (i) significant environmental concerns have not been
taken into account; (ii) there was an absence of a full disclosure when
the EIA report was put up for consultation; and (iii) concerns which
have been expressed by persons affected by the project have not been
adequately dealt with or analysed.
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104. The public consultation was held on 1 February 2015 at Mopa.
Nearly 70 persons spoke on the occasion and 1,586 persons signed the
attendance sheet.  1,150 representations were received. Some of the
environmental concerns expressed during the public hearing are
catalogued below:
(i)      Mopa plateau has multiple water sheds and the discharge of water
goes down to the rivers;
(ii)    Nearly forty springs would be affected along with flora and fauna;
(iii)   The public hearing had been conducted in an area where the land
was barren and with no plantation;
(iv)   The impact on river Chapora, which is within a 10 kilometre radius
from the project, has not been adequately analysed;
(v)    Mopa plateau has a natural mechanism for ground water recharge;
(vi)    Protection of the Western Ghats is necessary, particularly with the
view to not disturb flora and fauna;
(vii)  The EIA report has not been made available to the affected areas
and Gram Panchayats in the buffer zone;
(viii)  Local plantations would be affected;
(ix)   The number of trees to be felled by the project proponent has not
been specified in the EIA report;
(x)    The Dodamarg Wildlife Sanctuary had been ‘sanitized’ by the High
Court;
(xi)   Forest clearance had not been obtained;
(xii)  The sacred groves of the area have not been described, including
the Barazan which will be lost;
(xiii) The slopes sustain cashew plantations with nearly forty lakh cashew
trees resulting in an annual income
of Rs Fifty crores; and
(xiv) No study has been carried out in the 10 kilometre radius falling in
Maharashtra.
105. These concerns are at the forefront of the debate in the
present case. What is significant, is the manner in which they were
projected before the EAC at its 149th meeting on 26 June 2015 where
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
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the project proponent made a presentation.  The Minutes of the meeting
recorded the following observations of the project proponent:
“x. Public Hearing was conducted on 01.02.2015 at Simechen
Adven, Mopa, Goa.  The major issues raised during public
hearing and responses sought from the project proponent
related to employment opportunities.”
                                                                (Emphasis supplied)
On the basis of a factual analysis, Ms Shenoy has submitted that
only seven out of the 68 objections dealt with the issue of employment.
Evidently, the project proponent failed to address the other significant
concerns in the manner which is required by the 2006 notification.
106. In Utkarsh Mandal v Union of India52, the Delhi High
Court has succinctly summarized the duty of the EAC to apply its mind
to the objections raised in the course of public hearings:
“It is that body that has to apply its collective mind to the objections
and not merely the MoEF which has to consider such objections
at the second stage.  We therefore hold that in the context of the
EIA Notification dated 14th September 2006 and the mandatory
requirement of holding public hearings to invite objections it is the
duty of the EAC, to whom the task of evaluating such objections
has been delegated, to indicate in its decision the fact that such
objections, and the response thereto of the project proponent, were
considered and
the reasons why any or all of such objections
were accepted or negatived.  The failure to give such reasons
would render the decision vulnerable to attack on the ground of
being vitiated due to non-application of mind to relevant materials
and therefore arbitrary.”
107. Crucial objections and environmental concerns which were
raised during the consultative process were reduced to a single issue by
the project proponent before the EAC: the need for employment
opportunities. The project proponent failed in its duty to inform the EAC.
The record does not indicate a critical appraisal or analysis by the EAC.
The EAC was duty bound to apply its mind to the environmental concerns
raised by stakeholders. The duty of the project proponent to place fairly
all the environmental concerns raised during the public hearing is the
52 (2009) SCC Online Del 3836
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crucial link in the appraisal by the EAC. The Minutes of the meeting
indicate that there was no fair and complete disclosure of the objections
which were raised during the public hearing before the EAC. There is
evidently a failure in the process of applying and implementing the norms
laid down in the 2006 notification in this regard.
H   Appraisal by the EAC
108. Appraisal by the EAC is structured and defined by the 2006
notification. The process of appraisal is defined to mean “a detailed
scrutiny” by the EAC of the application and other documents like the
EIA report and the outcome of the public consultation, including the
public hearing proceedings, submitted by the applicant to the regulatory
authority for the grant of an EC. The EAC is under a mandate to conduct
the process of appraisal in “a transparent manner”.  On the conclusion
of these proceedings, the EAC has to make “categorical
recommendations” to the regulatory authority either for: (i) the grant of
a prior environmental clearance on stipulated terms and conditions; or
(ii) the rejection of the application. The recommendations made by the
EAC to the regulatory authority must be based on “reasons”.
109. The EAC, at its 149th meeting held on 26 June 2015, considered
the EIA report and sought a clarification from the project proponent on
the following six aspects:
“i. There is a need to superimpose the layout plan showing the
drainage pattern including natural drainage, construction in the
area on superimposed map showing clear topography of the region;
ii. 10 year data regarding rain fall in the area;
iii. Justification on sustainability of existing traffic and transportation
arrangements especially at inter-section points of the approach
road to the airport needs to be submitted;
iv. A traffic circulation plan needs to be evolved for smooth running
of traffic in the area;
v. Measures taken to comply with the CPCB guidelines formulated
for noise pollution control in airport areas to be submitted; and
vi. Minimum 20% energy conservation measures should be
adopted incorporating provisions for use of LED, star rated ACs
etc. Revised Energy Conservation Plan to be submitted.”
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
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110. A representation was received from the Federation of
Rainbow Warriors, consequent to which the consideration was deferred
and the project proponent was requested to submit a “point-wise reply
to the issues raised” in the representation. The EAC, at its 152nd meeting
held on 20 October 2015, observed that the project proponent had provided
“pointwise clarifications to the concerns raised by the ‘NGO’”. The
EAC noted thus:
“The EIA report has been updated by the PP after taking into
account the issues raised in the public hearing and the same has
been put in public domain.
The project is outside the ESZ delineated by the Dr Kasturirangan
Committee and TERI.
The project envisages construction of rain water harvesting pits
within the plot area, which would contribute to ground water
recharge.  Hence, the objection of NGO in this regard does not
hold.
The biological data in respect of flora and fauna was collected by
the functional area experts of M/s Engineers India Limited and
not by M/s Pragati Labs stationed at Goa during November, 2014
to January, 2015 for collection of ambient air quality, noise, water
quality, soil, socio-economics.”
Following the above statement, the EAC recommended the grant
of an EC subject to certain conditions.  Para 3.1.2 of the Minutes of the
EAC is as follows:
“The Committee noted the peculiar circumstances of the case
and the difficulties in land acquisition which led to delay in
preparation of the EIA report, and the larger public interest
involved.
Keeping in view the fact that the project proponent has not
concealed facts and circumstances of the case and the project is
in the public interest, the Ministry may take an appropriate view
on the objection that the public hearing could not have been held,
in the absence of valid TOR, though the validity has been extended
twice and regularized subsequently.  The Committee also noted
that the public hearing was attended by about 3000 people and
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hence there is substantive and active public participation as required
under the law for public consultation.
The PP further provided their reply to the rebuttal by the said
NGO on various issues.
The EAC, after deliberations, recommended the project for grant
of EC subject to the above and the following:-
The project proponent shall ensure availability of adequate land
at the junction of the Mopa Airport road and Mumbai/Goa NH
17 for traffic circulation/ management and to provide for all
the traffic interchanges and proposed clover.
The approach and exit roads to the airport would be  approved
from the NHAI and should be according to IRC norms.
A perusal of the Topo sheet superimposed on the runway area
indicates that the extreme end of the runway is covering the
drainage area partly.  The drainage area which is under
the runway needs to be channelized. The area between the
parallel taxi way and run way needs to be handled carefully to
drain the water from the area in the outfall.”
111.  The above explanation must be assessed with reference to
the norm that the EAC is required to submit reasons for its
recommendation. The above extract indicates that the EAC has adverted
to the following circumstances:
(i) The “peculiar circumstances” of the case;
(ii) The difficulties in land acquisition which led to a delay in the
preparation of the EIA report;
(iii) The “larger public interest” involved;
(iv) The project proponent had not concealed facts and circum-
stances of the case;
(v) The project is in the public interest; and
(vi) The project proponent had provided a reply to the rebuttal by
Rainbow Warriors on various issues.
This analysis of the EIA report is, to say the least, sketchy and
perfunctory and discloses an abdication of its functions by the EAC.
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
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The requirement that the EAC must record reasons, besides being
mandatory under the 2006 notification, is of significance for two reasons:
(i)     The EAC makes a recommendation to the regulatory authority in
terms of the 2006 notification. The regulatory authority has to con-
sider the recommendation and convey its decision to the project
proponent.  The regulatory authority, as para 8(ii) provides, shall
normally accept the recommendations of the EAC. Where it dis-
agrees, it would request reconsideration, stating the reasons for its
disagreement. In turn, the EAC will consider the observations of
the regulatory authority and furnish its views within a stipulated
period; and
(ii)    The grant of an EC is subject to an appeal before the NGT under
Section 16 of the NGT Act 2010.
The reasons furnished by the EAC for its recommendation are a
basic link in the ultimate decision of the regulatory authority. They
constitute substantive material which will be considered by the Tribunal
when it considers a challenge to the grant of an EC.
112. What, then, do the reasons which have been furnished by the
EAC tell us? The EAC relies on the “peculiar circumstances of the
case” as the basis of its recommendation. What the peculiar
circumstances are, is left for pure guess work or surmise. The EAC
refers to the delay in acquisition proceedings, a larger public interest and
the fact that the project proponent “has not concealed
facts and
circumstances”.  Each one of the reasons which has weighed with the
EAC betrays a lack of comprehension of the true nature of its function
under the 2006 notification. The EAC has failed to consider relevant
circumstances bearing on the environmental impact of the project and
has instead considered circumstances extraneous to its function. That
the project proponent, according to the EAC, has not concealed facts
and circumstances is not reason enough to warrant a grant of an EC.
Moreover, even this hypothesis (as we have seen earlier) is incorrect.
There is no analysis of the EIA report. The EAC has failed to answer to
the call to its expertise.
113. Clause (vi) of para 8 of the 2006 notification stipulates thus:
“(vi) Deliberate concealment and/or submission of false or
misleading information or data which is material to screening or
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scoping or appraisal or decision on the application shall make the
application liable for rejection, and cancellation of prior
environmental clearance granted on that basis.  Rejection of an
application or cancellation of a prior environmental clearance
already granted, on such ground, shall be decided by the regulatory
authority, after giving a personal hearing to the applicant, and
following the principles of natural justice.”
Deliberate concealment or the submission of false or misleading
information or data material for screening, scoping, appraisal or decision
on the application makes it liable for rejection. That the project proponent
must submit all information and data without concealing relevant features
is a basic hypothesis and expectation of the 2006 notification. The EAC
has, in the brief reasons which are contained in para 3.1.2, not applied its
mind at all to the environmental concerns raised in relation to the project
nor do its reasons indicate an appraisal of those concerns by evaluating
the impact of the project.
114. The EAC is an expert body. It must speak in the manner of
an expert. Its remit is to apply itself to every relevant aspect of the
project bearing upon the environment. It is not bound by the analysis
which is conducted in the EIA report. It is duty bound to analyse the EIA
report. Where it finds it deficient it can adopt such modalities which, in
its expert decision-making capacity, are required. The reasons which
are
furnished by the EAC constitute a live link between its processes
and the outomce of its adjudicatory function. In the absence of cogent
reasons, the process by its very nature, together with the outcome stands
vitiated.
115. Mr ANS Nadkarni, learned ASG urged that the EAC had, in
its 149th meeting, sought additional information on six issues. Subsequently,
at its 151st meeting, it deferred consideration upon the representation
filed by the Federation of Rainbow Warriors and at its 152nd meeting, it
analysed the response of the project proponent to the representation.
Hence, the EAC must be deemed to have applied its mind. This approach
is completely flawed.  At its 149th meeting, the EAC specifically called
for a clarification on six issues. The next meeting was deferred.  The
Minutes of the 152nd meeting contain no assessment of whether the
clarifications which were sought by the EAC had been replied to its
satisfaction by the project proponent.  The objection to the modalities
adopted by the EAC, however, are more fundamental. The Minutes of
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
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the 152nd meeting indicate that the EAC primarily, if not exclusively,
dealt with the “pointwise clarifications” of the project proponent to the
representation by the Federation of Rainbow Warriors. Dealing with a
representation is not exhaustive of the function of the EAC.  Arguably, if
no representation was received, or if a representation submitted by an
individual objector is found to be incorrect, that by itself is no ground to
recommend an EC.
116. The EAC, as an expert body, has to scrutinize all relevant
aspects of the project or activity proposed, including its impact on the
environment. In taking that decision, the EIA report is an input for its
analysis. The scrutiny and appraisal has to be undertaken by the EAC
as an expert body and its reasons must reflect that this has been done.
As the Minutes indicate, the non-application of mind by the EAC is
evident with reference to the presence of 15 ESZs in the study area.
The EAC notes that the project is outside the ESZ delineated by the
Kasturirangan Committee. In the absence of a critical analysis, the EAC
failed in discharging its duties under the 2006 notification. The
recommendations of the EAC furnish a guide for the MoEFCC. Indeed,
the 2006 notification stipulates that the recommendations of the EAC
would normally be accepted. Consequently, a failure of due process
before the EAC, as in the present case, must lead to the invalidation of
the EC.
I   The
appellate jurisdiction of the NGT: the requirement
  of a merits  review
117.. The NGT is entrusted with appellate jurisdiction under Section
16 of the NGT Act 2010.  Section 16(h) provides thus:
“16 Tribunal to have appellate jurisdiction. - Any person aggrieved
by,-
.....
(h) an order made, on or after the commencement of the National
Green Tribunal Act, 2010, granting environmental clearance in
the area in which any industries, operations or processes or class
of industries, operations and processes shall not be carried out or
shall be carried out subject to certain safeguards under the
Environment (Protection) Act, 1986 (29 of 1986);”
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Section 20 mandates that the Tribunal shall, while passing any
order, decision or award, apply the principles of sustainable development,
the precautionary principle and the polluter pays principle. Several
decisions of this Court have given meaning to these principles53.
118. The decision of the NGT indicates that several significant
submissions were urged before it. The entire analysis by the NGT is
contained in one paragraph of its judgment dated 21 August 2018 which
is extracted below:
“27. We find that the Expert Appraisal Committee had before it
point wise reply of the project proponent which we have already
quoted above. Therein delay in land acquisition process and
collection of fresh baseline data are mentioned. It is also mentioned
that data for Maharashtra was also considered. Other issues duly
explained are hydro-geological features and data with regard to
flora and fauna, socio-economic profile, topography, vegetation,
observance of due procedure in public hearing, relevance of study
with regard to ecosensitive areas of Western Ghats, feasibility of
proposed airport in terms of cost benefit analysis as well as
environmental cost benefit analysis. EAC also considered the data
compiled by various offices. Mere fact that different opinions have
been expressed by other experts is not enough to hold that EAC
did not apply its mind. The rehabilitation programme was also
produced before the EAC”.
The next paragraph contains a brief reference to the
fact that the
requirement of a study over a distance of 15 kilometres is in regard to
the collection of secondary data.  The above paragraph, in our view,
does not fulfil the requirement of a merits review by an expert adjudicatory
body vested with appellate jurisdiction.
119. The NGT Act provides for the constitution of a Tribunal
consisting both of judicial and expert members. The mix of judicial and
technical members envisaged by the statute is for the reason that the
Tribunal is called upon to consider questions which involve the application
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
53 Vellore Citizens Welfare Forum v Union Of India, (1996) 5 SCC 647; M C
Mehta v Kamal Nath, (1997) 1 SCC 388; M C Mehta v Union of India, (1997) 2
SCC 353; A P Pollution Control Board v Prof M V Nayudu (Retd.), (1999) 2 SCC
718; Narmada Bachao Andolan v Union of India, (2000) 10 SCC 664; Indian Council
for Enviro Legal Action v Union of India, (2011) 8 SCC 161
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and assessment of science and its interface with the environment.  In
order to be eligible for appointment as an expert member, a person must
fulfill the following qualifications prescribed in Section 5(2):
“(2) A person shall not be qualified for appointment as an Expert
Member, unless he,
(a) has a degree in Master of Science (in physical sciences or life
sciences) with a Doctorate degree or Master of Engineering or
Master of Technology and has an experience of fifteen years in
the relevant field including five years practical experience in the
field of environment and forests (including pollution control, haz-
ardous substance   management, environment impact assessment,
climate change   management, biological diversity management
and forest conservation) in a reputed National level institution; or
(b) has administrative experience of fifteen years including
experience of five years in dealing with environmental matters in
the Central or a State Government or in a reputed National or
State level institution.”
The NGT is an expert adjudicatory body on the environment.
120. In two of its previous decisions, the NGT has shown the path
along with which it must traverse in arriving at its decisions. In Save
Mon Region Federation v Union of India54, the grant of an EC to a
780 Megawatts Hydroelectric Project in Tawang district of Arunachal
Pradesh was challenged. The NGT framed the question before it in
broad terms:
“…the material issue, therefore, that needs to be answered in
the present Appeal is as to whether the process of grant of prior
EC to the project in question suffers from vice of faulty scoping
process or not.”
Having reviewed the information furnished in Form 1 by the project
proponent as well as the multiple reports on record on the bird species
involved in the site for the proposed project, the NGT held that facts
material to the case were not present before the EAC and the consequent
‘vacuum in the EIA report’ lead to aberrations in the appraisal process
conducted by it. Suspending the EC granted to the project, the NGT
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accepted the contention which was urged before it that the NGT has the
‘authority to take an appropriate decision on the facts placed before it’
and ‘set aside or suspend the EC’.
Similarly, in Shreeranganathan K P v Union of India55, the
grant of an EC to the KGS Aranmula International Airport Project was
challenged. The NGT found fault with the process leading to up to the
grant of the EC since sector specific issues had not been dealt with.
The NGT extensively reviewed the information submitted by the project
proponent in Form 1, the deficiencies in the EIA report, the process of
appraisal conducted by the EAC and the sector specific guidelines laid
down with regard to the constructions of airports and held thus:
“182. … a duty is cast upon the EAC or SEAC as the case may
be to apply the cardinal principle of Sustainable Development and
Principle of Precaution while screening, scoping, and appraisal of
the projects or activities. While so, it is evident in the instant case
that the EAC has miserably failed in the performance of its duty
not only as mandated by the EIA Notification, 2006, but has also
disappointed the legal expectations from the same. For a huge
project as the one in the instant case, the consideration for approval
has been done in such a cursory and arbitrary manner without
taking note of the implication and importance of environmental
issues. …Thus, the EAC has not conducted itself as mandated by
the EIA Notification, 2006 since it
has not made proper appraisal
by considering the available materials and objections in order to
make proper evaluation of the project before making a
recommendation for grant of EC.
187…the Tribunal is of the considered opinion that there is no
option but to scrap the impugned EC granted by the MoEF to the
3rd respondent/project proponent for setting up the Aranmula
airport”
121. The failure to consider materials on a vital issue and indeed
the non-consideration of vital issues raises a substantial question of law
leading to the invoking of the jurisdiction of this Court under Section 22
of the NGT Act 2010. The failure of process in the present case has
been compounded by the absence of a merits review by the NGT.
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
552014 ALL (I) NGT Reporter (1) (SZ) 1
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122. The learned ASG has placed reliance on the decision of this
Court in Lafarge Umiam Mining Private Limited v Union of India56
(“Lafarge”) to contend that the failure to disclose the presence of trees
should not lead to the invalidation of the EC. In that case, an application
was made under the 1994 notification for the grant of an EC to a proposed
limestone mining project at Nongtrai Village, East Khasi Hills District,
Meghalaya. EC was granted for the project in 2001. Pursuant to a letter
by the Principal Chief Conservator of Forests to the MoEF drawing
attention to the non-disclosure of forests, the project proponent applied
for a revised EC and forest clearance under the Forest (Conservation)
Act 1980. An ex post facto EC along with forest clearance was granted
in 2010. Challenging the grant of the EC, it was urged that there was a
failing on part of the project proponent to disclose the presence of forests
on the proposed project site.
123. A three judge Bench of this Court rejected the challenge and
upheld the grant of the EC to the proposed project. This Court relied,
among other factors, on the following: (i) the mining of limestone in the
Khasi Hills dates back to 1763 and is an integral part of the culture of
the Nongtrai Village; (ii) the site was cleared after thorough consultation
with the custodian of the land, who decided to lease the land for the
mining project following the loss of revenue caused
due to mining by the
unorganized sector; (iii) the Headman of the Nongtrai and the village
durbar, who participated at the public hearing and filed written submissions
before this Court, supported the project and certified that no damage
would be caused to adjacent lands; (iv) at the stage of site clearance,
the MoEF had before it certificates by the Executive Committee, Khasi
Hills Autonomous District Council and the DFO, Khasi Hill Division,
Shillong, certifying that there were no forests in the proposed project
site; (v) the DFO certified that that the proposed mining site was not a
forest as defined in Godavarman (supra); (vi) the 2006 notification was
not applicable; and (vii) the MoEF had, at multiple stages, sought
clarifications from the project proponent and had undertaken requisite
care and caution to protect the environment. Upholding the grant of the
EC and the forest clearance, this Court held thus:
 “120…The word “development” is a relative term. One cannot
assume that the tribals are not aware of principles of conservation
of forest. In the present case, we are satisfied that limestone
56 (2011) 7 SCC 338
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mining has been going on for centuries in the area and that
it is an activity which is intertwined with the culture and
the unique landholding and tenure system of Nongtrai
Village. On the facts of this case, we are satisfied with the due
diligence exercise undertaken by MoEF in the matter of forest
diversion. Thus, our order herein is confined to the facts of
this case.”
(Emphasis supplied)
124. The decision of this Court in Lafarge (supra), was based on
the facts summarized above. Significantly, the standard of judicial review
which must be applied in cases relating to the environment has been
formulated by the three judge Bench in Lafarge (supra). Chief Justice
S H Kapadia noted that the doctrine of proportionality must be applied to
matters concerning the environment as part of judicial review. The
principles of judicial review in environmental matters have been
enunciated thus:
“In the circumstances, barring exceptions, decisions relating to
utilisation of natural resources have to be tested on the anvil of
the well-recognised principles of judicial review. Have all the
relevant factors been taken into account? Have any extraneous
factors influenced the decision? Is the decision strictly in
accordance with the legislative policy underlying the law (if any)
that governs the field? Is the decision consistent with the principles
of sustainable development in the sense that has the decision-
maker taken into account the said principle and, on the basis
of
relevant considerations, arrived at a balanced decision? Thus, the
Court should review the decision-making process to ensure that
the decision of MoEF is fair and fully informed, based on the
correct principles, and free from any bias or restraint.”
125. In a recent three judge Bench decision of this Court in Mantri
Techzone Pvt. Ltd. v Forward Foundation57, this Court had the
occasion to construe the provisions of Section 22 of the NGT Act 2010.
Speaking for the Bench, Justice Abdul Nazeer held that the test to
determine whether a substantial question of law arises (within the
meaning of Section 100 of CPC) was formulated in the decision of a
Constitution Bench in Sir Chunilal v Mehta and Sons, Ltd. v Century
Spinning and Manufacturing58, where it was held thus:
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
57 (2019) 4 SCALE 218
58 1962 Supp. (3) SCR 549
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 “The proper test for determining whether a question of law raised
in the case is substantial would, in our opinion, be whether it is of
general public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an
open question in the sense that it is not finally settled by this Court
or by the Privy Council or by the Federal Court or is not free from
difficulty or calls for discussion of alternative views. If the question
is settled by the highest court or the general principles to be applied
in determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial question
of law.”
Re-appreciation of the ‘factual matrix’ has been held to be distinct
from a substantial question of law. In the present case, we have indicated
the basis for the invocation of the jurisdiction of this Court under Section
22. There was a failure to follow binding norms under the 2006 notification.
There were serious flaws in the decision-making process.  Relevant
material has been excluded from consideration and extraneous
circumstances were borne in mind. The EAC as an expert body abdicated
its obligations to make an expert determination based on reasons. The
NGT as an adjudicatory body failed to exercise the jurisdiction entrusted
to it under Section 16(h) read with
Section 20 of the NGT Act 2010 by
merely deferring to the decision to recommend and grant an EC. The
parameters in regard to the existence of substantial questions of law
have hence been established in the classical or conventional sense of
that expression.
J    Environmental Rule of Law
126. Fundamental to the outcome of this case is a quest for
environmental governance within a rule of law paradigm. Environmental
governance is founded on the need to promote environmental sustainability
as a crucial enabling factor which ensures the health of our eco system.
127. Since the Stockholm Conference, there has been a dramatic
expansion in environmental laws and institutions across the globe. In
many instances, these laws and institutions have helped to slow down or
reverse environmental degradation. However, this progress is also
accompanied, by a growing understanding that there is a considerable
implementation gap between the requirements of environmental laws
and their implementation and enforcement – both in developed and
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developing countries alike.59 The environmental rule of law seeks to
address this gap.
128. The environmental rule of law provides an essential platform
underpinning the four pillars of sustainable development— economic,
social, environmental, and peace.60 It imbues environmental objectives
with the essentials of rule of law and underpins the reform of
environmental law and governance.61 The environmental rule of law
becomes a priority particularly when we acknowledge that the benefits
of  environmental rule of law extend far beyond the environmental
sector. While the most direct effects are on protection of the
environment, it also strengthens rule of law more broadly, supports
sustainable economic and social development, protects public health,
contributes to peace and security by avoiding and defusing conflict, and
protects  human and constitutional rights.62 Similarly, the rule of law in
environmental matters is indispensable “for equity in terms of the
advancement of the Sustainable Development Goals63, the provision of
fair access by assuring a rights-based approach, and the promotion and
protection of environmental and other socio-economic rights.”64
129. Amartya Sen argues for a broadening of the notion of
sustainable development which is the most dominant theme of
environmental literature, from a need-based standard65 to a standard
based on freedoms.66 Thus recharacterized, it encompasses the
preservation, and when possible even the expansion of
the substantive
freedoms and capabilities of people today without compromising the
capability of future generations to have similar - or more - freedoms.
The intertwined concepts of environmental rule of law thus further
intragenerational as well as intergenerational equity.
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
Environmental_rule_of_law.pdf?sequence=1&isAllowed=y
60  Ibid
61 Ibid
62 Ibid
63 SDGs
64 UN Environment, Environmental Rule of Law. Available at https://
www.unenvironment.org/explore-topics/environmental-rights-and-governance/what-
we-do/promoting-environmental-rule-law-0
65 Bruntdland definition of Sustainable Development
66 Amartya Sen, Sustainable Development and our responsibilities. Available at
h t t p : / / w w w. c o m i t a t o s c i e n t i f i c o . o r g / t e m i % 2 0 S D / d o c u m e n t s /
SEN%20Responsibility&SD%2010.pdf
59 United Nations Environment Programme, First Environmental Rule of Law Report.
Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/27279/
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130. Decision 27/9 which was adopted by the United Nations
Environment Programme’s67 Governing Body at its first universal session
in 2013 on ‘Advancing Justice, Governance and Law for Environmental
Sustainability’ was the first internationally negotiated document to establish
the term ‘environmental rule of law.’ It declared that “the violation of
environmental law has the potential to undermine sustainable development
and the implementation of agreed environmental goals and objectives at
all levels and that the rule of law and good governance play an essential
role in reducing such violations”. It thus urged governments and
organisations to reinforce cooperation to combat noncompliance with
environmental laws towards achieving sustainable development. It also
called upon the Executive Director to assist with the “development and
implementation of environmental rule of law with attention at all levels
to mutually supporting governance features, including information
disclosure, public participation, implementable and enforceable laws, and
implementation and accountability mechanisms including coordination
of roles as well as environmental auditing and criminal, civil and
administrative enforcement with timely, impartial and independent dispute
resolution.” Similarly, the first United Nations Environment Assembly in
2014 adopted resolution 1/13, which calls upon countries “to work for
the strengthening of
environmental rule of law at the international, regional
and national levels.”
131. In 2016, the First World Environmental Law Congress,
cosponsored by the International Union for Conservation of Nature and
UN Environment, adopted the IUCN World Declaration on the
Environmental Rule of Law68 which outlines 13 principles for developing
and implementing solutions for ecologically sustainable development:
(i)
Obligation to Protect Nature
(ii)
Right to Nature and Rights of Nature
(iii)
Right to Environment.
(iv)
Ecological Sustainability and Resilience
(v)
In Dubio Pro Natura
(vi)
Ecological Functions of Property
67 UNEP
68  IUCN, Environmental Rule of Law. Available at ://www.iucn.org/commissions/world-
     commission-environmental-law/wcel-resources/environmental-rule-law
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(vii)
Intragenerational Equity
(viii)
Intergenerational Equity
(ix)
Gender Equality
(x)
Participation of Minority and Vulnerable Groups
(xi)
Indigenous and Tribal Peoples
(xii)
Non-regression
(xiii)
Progression
132. Dhvani Mehta’s doctoral thesis69 explores this idea of
environmental rule of law in the Indian context by analysing the functioning
of the three institutions of the government with regard to environmental
law. It develops a framework to assess whether the environmental rule
of law in India is being strengthened or weakened, through an analysis
of the legal instruments of each of the institutions of government—
statutes, executive orders, and judicial decisions. The indicators on the
basis of which this is done are: a) the capacity of statutes to guide
behaviour (one of the organising principles of the rule of law) by clearly
articulating goals or balancing competing interests; b) the ability of the
executive to take flexible but reasoned decisions grounded in primary
legislation; and c) the ability of the judiciary to apply statutory
interpretation and consistent standards of judicial review to give effect
to environmental rights and principles.
133. In 2015, the International community adopted the 2030 Agenda
for Sustainable Development and its 17 SDGs70. These 17 goals are:
(i)
Eradication of poverty;
(ii)
Eradication of hunger;
(iii)
Good health and well-being;
(iv)
Quality education;
(v)
Gender equality;
(vi)
Clean water and sanitation;
(vii)
Affordable and clean energy;
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
69 Dhvani Mehta, The Environmental Rule of Law in India, University of Oxford,
    2017. Available at https://ora.ox.ac.uk/objects/uuid:730202ce-f2c4-4d2f-9575-
    938a728fe82a
70 SDGs
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(viii)
Decent work and economic growth;
(ix)
Industry, innovation and infrastructure;
(x)
Reduced inequalities;
(xi)
Sustainable cities and communities;
(xii)
Sustainable consumption and production;
(xiii)
Climate action;
(xiv)
Protecting life below water;
(xv)
Life on land;
(xvi)
Peace, justice and strong institutions; and
(xvii)
Partnerships to achieve the goals.
134. Each of these goals has a vital connection to the others.
Together, they provide an agenda for human development: development
in a manner which accords adequate protection to the environment. The
UNEP recognises that the natural environment – forests, soils and wet
lands – contributes to the management and regulation of water availability
and water quality, strengthening the resilience of water sheds and
complements investments in physical infrastructure and institutional and
regulatory arrangements for water access and disaster preparedness.
135. SDG 13 emphasises the urgent action required to combat
climate change and its impacts. This is based on the recognition that
extreme weather events such as heat waves, droughts, floods and tropical
cyclones have aggravated the need for water management, pose a threat
to food security, increase health risks, damage critical infrastructure and
interrupt the provision of basic civil services.
136. The statistics on climate change indicate that:
(i)    Between 1880 and 2012, average global temperatures have
increased by 0.85 degrees Celsius;
(ii)      Between 1901 and 2010, as ocean expanded, the global average
sea level has risen by 19 centimeters;
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(iii)    Since 1990, global emissions of CO2 increased by almost 50 per
cent; and
(iv)     Between 2000 and 2010, emissions grew at a more rapid rate than
each of the three decades preceding it.
137. In this backdrop, SDG 16 emphasises the need to protect,
restore and promote sustainable use and management of terrestrial eco
systems and forests, combat desertification of river lands, prevent land
degradation and halt the loss of biodiversity. Terrestrial eco systems
provide a range of eco system services including the capture of carbon,
maintenance of soil quality, provision of habitat for biodiversity,
maintenance of water quality and regulation of water flow together with
control over erosion. Maintenance of eco systems is hence crucial to
efforts to combat climate change, mitigate and reduce the risks of natural
disasters including floods and landslides. In this backdrop, promoting
environmental justice and ensuring strong institutions is quintessential to
promoting peaceful and inclusive societies for sustainable development.
SDG 16 therefore construes the promotion of the rule of law as intrinsic
towards implementing multilateral environmental agreements and
progressing towards internationally agreed environmental goals.
138. On 2 October 2016, India ratified the Paris Agreement71
on climate change which reaffirmed the goal of ‘limiting global
temperature increase to well below 2 degrees Celsius, while pursuing
efforts to limit the increase to 1.5
degrees above pre-industrial levels’.
Article 5 of the Agreement encourages parties to conserve and
enhance sinks and reservoirs of greenhouse gases, which includes
forests. Under its Nationally Determined Contributions under the Paris
Agreement, India made the following three commitments72:
(i)   Greenhouse gas emission intensity of its Gross Domestic
Product will be reduced by 33-35% below 2005 levels by 2030;
(ii)    40% of India’s power capacity would be based on non-fossil
fuel sources; and
(iii)   An additional ‘carbon sink’ of 2.5 to 3 billion tonnes of CO2
equivalent through additional forest and tree cover will be cre-
ated by 2030.
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
71 Entered into force on 4 November 2016
72 India’s Intended Nationally Determined Contribution: Working Towards Climate
Justice at P. 29, submitted to the UNFCCC secretariat
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139. In March 2019, UNEP released the Global Environment
Outlook themed ‘Healthy Planet, Healthy People’.73 Noting clear ‘links
between human health and the state of the environment’, the report
concludes that clean-up and efficiency improvements are not adequate
to pursue the 2030 Agenda and the SDGs and achieve the internationally
agreed environmental goals on pollution control. Instead, ‘transformative
change’ which reconfigures basic social and production systems and
structures is needed. This includes well-designed policies on institutional
frameworks, social practices, cultural norms and values along with their
implementation, compliance and enforcement. In this view, a systemic
and integrated policy action74 would ensure that a “healthy environment
is a prerequisite and foundation for economic prosperity, human health
and well-being”75
140. The rule of law requires a regime which has effective,
accountable and transparent institutions. Responsive, inclusive,
participatory and representative decision making are key ingredients to
the rule of law. Public access to information is, in similar terms,
fundamental to the preservation of the rule of law. In a domestic context,
environmental governance that is founded on the rule of law emerges
from the values of our Constitution. The health of the environment is
key to preserving the right to life as a constitutionally recognized value
under Article 21 of the