HANUMAN LAXMAN AROSKAR versus UNION OF INDIA
[2019] 5 S.C.R. 916, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Ratio
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.
141. The 2006 notification must hence be construed as a significant
link in India’s quest to pursue the SDGs. Many of those goals, besides
being accepted by the international community of which India is a part,
constitute a basic expression of our own constitutional value system.
Our interface with the norms which the international community has
adopted in the sphere of environmental governance is hence as much a
reflection of our own responsibility in a context which travels beyond
our borders as much as it is a reflection of the aspirations of our own
Constitution. The fundamental principle which emerges from our
interpretation of the 2006 notification is that in the area of environmental
governance, the means are as significant as the ends. The processes of
73 Global Environment Outlook 6, UNEP, 4 March 2019
74 Global Environment Outlook 6, UNEP, 4 March 2019
75 Ibid
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decision are as crucial as the ultimate decision. The basic postulate of
the 2006 notification is that the path which is prescribed for disclosures,
studies, gathering data, consultation and appraisal is designed in a manner
that would secure decision making which is transparent, responsive and
inclusive.
142. Repeatedly, it has been urged on behalf of the State of Goa,
MoEFCC and the concessionaire that the need for a new airport is
paramount with an increasing volume of passengers and consequently
the flaws in the EIA process should be disregarded. 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.
143. In the present case, as our analysis has indicated, 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 which
have been noticed in the earlier part of this judgment
including the failure
to acknowledge that within the study area contemplated by the Guidance
manual, there is a presence of ESZs.
144. 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.
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
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[2019]  5 S.C.R.
145. In this view of the matter, neither the process of decision
making nor the decision itself can pass legal muster. Equally, as an area
requiring balance between development of infrastructure and the
environment, we are of the view that 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, we have come to the conclusion that time bound directions
should be issued.
146. Bearing in view the necessity to maintain a balance between
the need for an airport and environmental concerns, we are of the view
that 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, we propose
by the directions which we will issue under Article 142 of the
Constitution,
to direct the EAC 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 we have preserved to
it.  To facilitate an expeditious decision, we propose to direct the EAC to
carry out this exercise in a prescribed time schedule during which period,
the EC shall remain suspended.  We propose to direct that 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.  We clarify that 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.
K    Directions
147. We accordingly issue the following directions:
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(i) The EAC shall revisit the recommendations made by it for the
grant of an EC, including the conditions which it has
formulated, having regard to the specific concerns which have
been highlighted in this judgment;
(ii) The EAC shall carry out the exercise under (i) above within a
period of one month of the receipt of a certified copy of this
order;
(iii) Until the EAC carries out the fresh exercise as directed above,
the EC granted by the MoEFCC on 28 October 2015 shall
remain suspended;
(iv) Upon reconsidering the matter in terms of the present
directions, the EAC, if it allows the construction to proceed
will impose such additional conditions which in its expert view
will adequately protect the concerns about the terrestrial eco
systems noticed in this judgment. The EAC would be at liberty
to lay down appropriate conditions concerning air, water, noise,
land, biological and socio-economic environment;
(v) The EAC shall have due regard to the assurance furnished by
the concessionaire to this Court that it is willing to adopt and
implement necessary safeguards bearing in mind international
best practices governing greenfield airports;
(vi) We grant liberty to the State of Goa as the project proponent
and the MoEFCC, as the case may be, to file the report of the
EAC before this Court in the form of a Miscellaneous
Application so as to facilitate the passing of appropriate orders
in the proceedings; and
(vii) No other Court or Tribunal shall entertain
any challenge to
the report that is to be submitted before this Court by the EAC
in compliance with the present order.
 148. Before we part with the present case, we consider it appro-
priate to record a finding on the bona fides of the appellants before this
Court. It was briefly urged by the respondents that the appellants have
invoked the jurisdiction of this Court based on a personal agenda and
consequently, the present appeal is liable to be dismissed. This argument
cannot be accepted. We accept the submission of Ms Shenoy, learned
counsel appearing on behalf of the appellants, that the non-consideration
of vital issues by the EAC has led to the invocation of the statutory
remedy available to them under Section 22 of the NGT Act 2010. Vague
HANUMAN LAXMAN AROSKAR  v. UNION OF INDIA
[DR. DHANANJAYA Y. CHANDRACHUD, J.]
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aspersions on the intention of public-spirited individuals does not consti-
tute an adequate response to those interested in the protection of the
environment. If a court comes to the finding that the appeal before it
was lacking bona fides, it may issue directions which it thinks appropri-
ate in that case. In cases concerning environmental governance, it is a
duty of courts to assess the case on its merits based on the materials
present before it. Matters concerning environmental governance con-
cern not just the living, but generations to come. The protection of the
environment, as an essential facet of human development, ensures sus-
tainable development for today and tomorrow.
149. The learned Attorney General for India has presented the
submissions before this Court with his characteristic sense of objectivity
and candour. We wish to record our appreciation for the able assistance
rendered to this Court by Ms Anitha Shenoy, learned counsel for the
petitioner,  Mr ANS Nadkarni, learned Additional Solicitor General for
the MoEF, Mr Parag P Tripathi, learned senior counsel and Ms Aastha
Mehta, learned counsel for the concessionaire.
150. The appeal is allowed in the above terms.  There shall be no
order as to costs.
Civil Appeal No 1053 of 2019
151. This appeal is also disposed of in the same terms, conditions,
directions and observations as in Civil Appeal No 12251 of 2018.
Kalpana  K. Tripathy
Appeals disposed of.