BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER SYNOPSIS

1. Pleadings Para no Page no Para no Page no

a) OA I 29-67 14-40 d) OA III 87-102 52-66

b) OA II 68-85 40-51 e) OA IV 103-119 66-75

c) RA 46/19 86 51-52

2. Orders of NGT-during proceedings Para no Page no Para no Page no

a) OA I 120-135 75-83 d) RA 46/19 142-149 87-90

b) OA II 136-138 83-84 e) OA IV 150-157 90-94

c) OA III 139-141 84-87

3. Review Application Order on merit 158-159 94

4. Committee and other reports Report dated Para no Page no Report dated Para no Page no

a) 26.12.2018 160-161 94-96 j) 28.04.2020 185-188 135-137

b) 29.04.2019 162-164 96-103 k) 06.01.2021 189-190 137-146

c) 24.05.2019 165 103 l) 08.01.2021 191-193 146-151

d) 28.06.2019 166-170 103-106 m) 01.04.2021 194-198 151-161

e) 30.07.2019 171-172 106-111 n) 08.04.2021 (OA I) 199-200 161-162

f) 24.10.2019 173-177 111-117 o) 08.04.2021 (RA) 201-202 162-163

g) 26.10.2019 178-180 117-119 p) 19.06.2021 203 163

h) 29.01.2020 181-183 119-131 q) 21.06.2021 204-206 163-171

i) 18.02.2020 184 131-135 r) 06.08.2021 207 171-174

5. Submissions 208-214 174-177

6. Issues 1 & 2 218-320 178-220

7. Issue-3 321-621 220-423

8. Environmental Compensation-Assessment/Methodolgy 507-620 363-423

9. Operative Part 616-624 421-426 6

1. A King can do no wrong. It is an old concept of sovereign immunity, recognized in English law. Very frequently, it was relied and sought during colonial rule in this country. It cannot be doubted that it is an archive concept based on old feudalistic notion of justice but unfortunately, in the matters before us, we find, that, though not specifically pleaded, but an attitude similar to the above notion has been adopted by Provincial Government (State of Andhra Pradesh) and its authorities when they proceeded to launch/commission/execute welfare schemes namely a few lift irrigation schemes and a rivers linking project, but without following and observing mandatory laws, more appropriately, laws relating to environment. These laws have been given a complete go- bye in one or the other manner. Despite the stand taken by Government of India that action of State Government of Andhra Pradesh is/was not in conformity with environmental laws, a stubborn and adamant attitude has been adopted, and, an indefensible defense has been taken that those laws were not required to be observed or followed by State Government for execution of above schemes/projects, in respect whereof, complaints have been made to this Tribunal.

2. In India, Constitution contemplates a welfare State. Power vests, not in the crown, but in people of India who elect their representatives to run the Government which has to act in accordance with the provisions of Constitution and enacted laws. It would be answerable to people for any violation thereof. Unfortunately, this rule of law has been breached by State, with impunity.

3. Welfare activities like facility of irrigation, drinking water and water for industrial use etc., useful for general public, are always welcome. 7 Nobody can dispute that it is a statutory and constitutional obligation of State to take such welfare steps for the benefit of people at large. However, nobody can contend that for achieving such objects, for welfare of people, observance of law is not necessary or State/Governments can violate, flout, breach and disobey statutory laws for proceeding with welfare activities and still can claim immunity from facing consequences.

4. More so, this question becomes more important when laws, made for preservation, protection and remediation of environment are involved. It is now well recognized that laws relating to environment, since included within the ambit of „Fundamental Right to Life‟ under Article 21 , their compliance and observance is mandatory and nobody can claim immunity therefrom. Like common man, State and its authorities are equally bound to strictly follow environmental laws, that too, in words and spirit.

5. Environment is not confined to an individual or a single component. Environment comprises of all physical, chemical and biological conditions, that together act on an organism or an ecological community and influence its growth and development. Soil, air, water, climate, plant, animal life, noise level and pollution, etc. are all components of „environment‟.

6. When rivers, soil, water, air etc., the nature‟s gift to mankind and natural asset, is explored to serve people by intervention of technique invented by homo sapiens, disturbing/diverting/destroying natural flow/activity of nature, a question always arise, "how much, how long and at what „cost‟. It is virtually environment‟s consumption versus its protection and preservation. Nature in its own way supports animal, brings own, for its survival. Nature‟s consumption by mankind is for 8 betterment of life. Both have to be respected and balanced. Our forefathers have visualized it and taught a lesson to respect nature. At least in Indian Peninsular, (old Jambu Dweep as described in Vedas and its ancillaries), for last thousands of years, wise man (rishis and saints) have handed down message to us by giving it a religious texture.

7. In India, matter of environment is not something new which is governed by a few decades‟ old statutory laws. As stated above, since ancient times, our ancestors have given highest respect to environment raising it to the status of God which ought to be worshiped by common people. The term „environment‟ has been defined in EP Act, 1986 as an inclusive definition. However Sanskrit word is "Paryavaran" which means that it is not mere atmosphere (Vatavaran) but the term "Paryavaran" includes "Vatavaran" and everything that encompasses it.

8. In Rig veda, 1/90/6, a verse on nature, says:

9. In Vedic Literature, mother earth was personified as Goddess „Bhumi‟ or „Prithavi‟. In fact, in ancient Vedic era, people of India had a great respect for environment and worshipped different objects and/or manifestations of nature with utmost devotion and sincerity. Earlier, wisemen of Indian sub-continent thought it appropriate to attribute religious sanctity to environment for maintenance of ecological balance and easy acceptance with a flavor of compulsion by society. They 9 worshipped every facet of environment, namely, land/soil, water, rivers, plants, animals, birds, mountains, sky, etc.

10. Prithvisukta in Atharvaveda shows that wisemen/Vedic seer celebrated for mother earth with all its natural bounties, particularly for her gifts of herbs and vegetation; and her blessings were sought for prosperity in all surroundings and fulfilment of all righteous aspirations.

11. In Indian Philosophy, environment is not a physical lifeless entity but it is a living mechanism where humans are one of the many living creatures. It contemplates that man being an intelligent creature should own prime responsibility of protection of environment as one of the fundamental duties. It perceived that there is life in all kinds of things, biotic or non-biotic. Indian philosophy explains that elements originate in phases i.e., water, earth, sky come first; aquatic animals and birds second; land third; air and wind fourth and finally fire. Indian philosophy greatly emphasized upon very cordial relationship among all the elements of galaxy and replacement as equal to every other element of our environment.

12. In Ishopanishad, there is celebrated command which says "everything in the universe belongs to Supreme God, therefore, take only what you need, that is set aside for you. Do not take else, for you know to whom it belongs." It further says "resources are given to mankind for their living. Knowledge of using the resources is absolutely necessary".

13. In Bhagavatam (Volume 2, Chapter 1, Verses 32-33), it is said that "the trees are the hairs of His body, the oceans His waist, the hills and mountains are His bones, the rivers are the veins of the cosmic being (Brahman), his movements are the passing of ages".

14. In Kautilya‟s Arthashastra, great importance led on environment protection and even clear punishments were prescribed on the basis of importance of various parts of forest produce, if damaged by anyone.

15. Manu Smriti also mentions about optimum use of resource of nature and also prescribes different punishments for causing injury to plants.

16. The digests of ancient age old Vedas handed down to Indian people since ancient time are very clear, categorical and sound. In Rigveda, it is said that there are five elements which give basis to life and these are earth, water, fire, space and air. „Rigveda‟ makes a clear reference to presence of a „protective layer‟ which is now known by us as „ozone layer‟ that filters harmful rays of sun and protect us.

17. In Yajurveda, it is said that „Yajna‟ („Yagya‟) be performed by offering butter and fire into sacrificing fire so that it mixes with atmosphere and makes environment free from impurities. It mentions about keeping the sky clean and about praying to the water bodies as they sustain life.

18. Samaveda recognizes, like other Vedas, importance of maintenance of season cycle that are likely to get altered due to climatic change owing to inappropriate detrimental human actions.

19. In Atharvaveda, the concept of give and take has been emphasized which means that „one can take from the earth and atmosphere only so much as one would give back to that‟. It also emphasises and highlights many other things like purity of water, protection of wildlife and domestication of animals like cattle. In Atharvaveda (5.30.6), it is said 11 that "Man‟s paradise is on earth; this living world is the beloved place of all; it has the blessings of natures and bounties; live in a lovely spirit".

20. Chanakya in Arthashastra, emphasizing on environment protection, said that wets required to maintain forests, fines were imposed for cutting trees and damaging forests, forest reserves were for wild animals and they would be killed or bound in outside the reserve forests when harmful.

21. We find a similar recognition of environment covering all flora and fauna and surroundings in other religious sets. In Buddhism, there is great respect on truth, non-violence, and love for all living creatures, including trees, plants and flora and fauna. Same is the basic principle canvassed in Jainism, where, they believe that plants and trees also had life. In Jainism, they are supposed to take 15 vows such as arma, Karmdan, Van Karm, Sphotrik Karm, Nirlanchan Karm, Asotipasan Karm etc. which are exclusively related to protection of environment against any kind of pollution. In Sikhism, also preservation of environment is one of the sacred duties of every follower.

22. In Vedic period, the term „Dharam‟ was used as synonym for law. We find such use in Vedic literature at many places. Vedic people believed that order develops amongst man, in group in noblest places. Ecologist believed, when man adopts peaceful means of inter-change, he makes laws. Purana‟s conception is that law arose out of human necessity and an urge for peaceful life. In Puranas, law is interpreted as means to secure „Abhyudaya‟ that is welfare of the people. Dharma represented rights, privileges and obligations of individuals. The object of law was/is to promote welfare of man, individually and collectively. Thus, 12 nature was co-related with dharma and as a natural corollary, commands relating to nature became law.

23. Ecology and environment, however, had seen deterioration with technological advancement. Rural people used to live close to nature. Modern day development has compelled them to leave villages and migrate to cities in search of livelihood. Growing industrialization has started consuming natural resources at a large scale.

24. Very late, State did realise that environmental ethics have become a valueless point and its protection is utmost necessary. Consequently, we have seen constitutional amendment in 1976 by way of 42nd amendment of the Constitution inserting Article 48A in the Chapter of „Directive Principles‟ of State Policy and Article 51(g) in the „Fundamental Duties‟ which says that every citizen shall have a fundamental duty to protect and improve natural environment, including forest, lakes, rivers, wildlife and to have compassion for living creature.

25. Statutes for preservation, protection, and restoration of environment have been made. Central and State Governments are custodians of environment. Statutory Regulators have been contemplated to execute mandate of environmental laws for protection of environment.

26. In these matters, complaints raised by applicants are that "lift irrigation schemes" have been launched, some are executed and even completed during pendency of matter, without complying mandatory provisions of environmental laws relating to Environmental Clearance, consent to establish and consent to operate. The schemes were commissioned without preparation of scheme for scientific treatment of various components of environment like soil, water, air etc. There was no 13 assessment of impact on environment resulting in execution of these projects, not only illegally but causing serious degradation and damage to environment.

27. It cannot be doubted that everybody has to follow and respect law. All individuals and institutions are obliged to adhere to Rule of law. Obviously, when laws were made, it could not have been or ought not to have been expected that State or its authorities, in a given case, themselves, would violate mandate of laws, relating to environment. But when it happens, a complex issue of reconciliation and resolution arises as to how and in what manner a „binder is to be bound‟ so as to do in substance, on record and in effect.

28. Since, fundamental and substantial questions relating to environment, arising from implementation of the statutes mentioned in the Schedule to Environment Protection Act, 1986 (hereinafter referred to as „ EP Act, 1986 ‟), are broadly common in all the above matters, particularly, when some are under consideration with regard to compliance report and some are required to be decided on merits, we have heard all these matters together and deciding by this common judgment.

29. OA No. 175/2018 (hereinafter referred to as „OA I‟) is filed by two members of general public, one, an agriculturist and another a retired teacher, under Sections 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as „ NGT Act, 2010 ‟), being aggrieved by Purushothapatnam Lift Irrigation Scheme (hereinafter referred to as 14 „Purushothapatnam LIS‟), proposing to divert surplus flow of Godavari river to Yeleru river by cutting out 100 Cumecs (3500 Cusecs) of water in two stages to Polavaram Irrigation Project Left Main Canal (hereinafter referred to as „PIPLM Canal‟) alleging that prior Environmental Clearance (hereinafter referred to as „EC‟) under Environment Impact Assessment Notification, 2006 (hereinafter referred to as „EIA 2006‟) though mandatory, but has not been obtained. The Project i.e., Purushothapatnam LIS, is bound to cause damage to environment, besides affecting extremely fertile farm land of Godavari belt, but no Environment Impact Assessment (hereinafter referred to as „EIA‟) has been carried out and there are various violation of environmental norms and laws, hence it should not be undertaken by respondents.

30. Applicant-1, Shri Jammula Chhoudaraiah is an agriculturist and applicant-2, Shri Indukuri Suryanarayana Raju is a retired Government College Teacher. They claim that they are concerned about damage likely to be caused to environment and extremely fertile farm land of Godavari belt, as an impact of the Project in question, if allowed to be executed, hence have approached this Tribunal.

31. Facts in brief, stated in the application, are that State of Andhra Pradesh (respondent 2) and Water Resources Department (respondent 3) are "Project Proponents" (hereinafter referred to as „PPs‟) for execution of work of Purushothapatnam LIS. It is a Multipurpose Project for providing water for irrigation, drinking and industrial use in East Godavari District of Andhra Pradesh. Project is located on Akhanda Godavari Left Bank at Km 40.800 near Purushothapatnam Village in Seethanagaram (M), East Godavari District, Andhra Pradesh. Project is meant to divert surplus flow of water from Godavari River to Yeleru river. It envisages pumping of 15 100 Cumecs (3500 Cusecs) of water from Godavari River, in two stages, to PIPLM Canal. In order to meet requirement of water for irrigation, drinking and industrial needs to Vishakhapatnam, covering an area of 67,614 acres under Yeleru Irrigation System, to augment water in Yeleru Reservoir Project, the aforesaid Project, Purushothapatnam LIS is proposed for lifting of water from river Godavari near Purushothapatnam Village. Project comes within the purview of EIA 2006 and prior EC is mandatory before commencement of work but no such Clearance has been obtained by PPs, instead construction activities were commenced on 30.01.2017. Though PPs claims that the project is multipurpose lift irrigation scheme but in substance, it envisages irrigation over 10,000 hectares of agricultural land, hence it is within the purview of EIA 2006, falling in Category A, Entry 1(c) of EIA 2006 (as amended vide S.O. 1599(E) dated 25.06.2014). PPs have attempted to show that Project is for drinking water and industrial use, hence beyond the scope of EIA 2006 but Detailed Project Report (hereinafter referred to as „DPR‟) of the Project and floated tender notices for Purushothapatnam LIS, show that primary object is irrigation.

32. It is, therefore, prayed by applicants that respondent 2 and 3 (PPs) be restrained from undertaking any construction activities until prior EC is obtained from respondent 1 i.e. Ministry of Environment, Forest and Climate Change (hereinafter referred to as „MoEF&CC‟); respondents be directed to restore area where they have undertaken construction work illegally and pay "environmental compensation" for damage caused to environment. Further, Competent Authority should initiate proceedings for prosecution of erring authorities under EP Act, 1986 and other relevant laws.

16 Initial proceedings in Tribunal:

33. Tribunal heard application on 31.05.2017 and after hearing Counsel appearing for applicants, issued notices to respondents giving time to file their response. On 19.07.2017, Counsels for respondents 1 to 3 appeared and sought further time to file reply whereupon Counsel appearing for applicants prayed for interim order. However, on the statement made by Counsels appearing for respondents 2 and 3 that project has all the required Consent and EC, Tribunal granted further time to file reply but said that any construction made, will be subject to final decision of Tribunal.

Response dated 31.08.2017 of respondents 2 and 3:

It shall prevent frequent phenomenon of destruction of crop just before harvest due to cyclone and heavy rains during months of October and November. Further, it shall ensure water for second crop in a year. In effect, Polavaram/Indira Sagar MIP is for the larger benefits of people of Andhra Pradesh, particularly, those residing in severely drought ridden areas.

35. Polavaram/Indira Sagar MIP was accorded status of a "National Project" by Section 90 of Andhra Pradesh Reorganisation Act, 2014 (hereinafter referred to as „APR Act, 2014‟); funded by Central Government; and already subject matter of consideration before GWD Tribunal which was constituted in 1969 under Inter-State Water Disputes Act, 1956 (hereinafter referred to as „ISWD Act, 1956‟). GWD Tribunal was constituted for adjudicating water dispute between States of Andhra Pradesh, Madhya Pradesh, Odisha, Karnataka and Maharashtra regarding sharing of water of River Godavari including dispute related to Polavaram/Indira Sagar MIP. During pendency of proceedings before Tribunal, parties resolved all disputes by entering into various agreements. Since Polavaram/Indira Sagar MIP contemplated diversion of water from River Godavari to River Krishna, State of Andhra Pradesh (undivided) entered into an agreement on 04.08.1978 with State of Karnataka. Another agreement was executed on 07.08.1978 between State of Andhra Pradesh (undivided) and State of Madhya Pradesh (undivided) for sub-basin allocations and submergence. A similar agreement was entered into between State of Andhra Pradesh (undivided) and State of Odisha on 15.12.1978. Later reference was made to GWD Tribunal under Section 5(3) of ISWD Act, 1956. During pendency of reference before Tribunal, an agreement was entered on 02.04.1980 19 between State of Andhra Pradesh (undivided), State of Madhya Pradesh (undivided) and State of Odisha. After taking into consideration suggestions made by parties before GWD Tribunal, a final Award was handed down by GWD Tribunal on 07.07.1980 wherein agreement dated 02.04.1980 was made a part, and various conditions contained therein, were incorporated in the Award, superseding earlier agreements dated 04.08.1978 and 07.08.1978. Therefore, all issues relating to construction of Polavaram/Indira Sagar MIP were settled between the parties by agreements. Based thereon, Award was pronounced by GWD Tribunal.

36. Respondents 2 and 3 have given further details of Polavaram/Indira Sagar MIP stating that it was contemplated in 1942. At that time, it was called "Ramapada Sagar Project". Site was located in erstwhile Madras Presidency. Preliminary investigation was conducted from 1942 to 1944 and then from 1946-1947. A Consulting Board was constituted for advising on construction of dam, particularly, the design and construction of Coffer dam and dewatering of foundation. Project was found unquestionably feasible and selected site for the dam as the best available site. Project would have to be a terminal reservoir. It was proposed to be built at the last range of continuous hills of Eastern Ghats. After finalization of designs of construction, initial cost of Project was worked out as Rs. 121.87 Crores and cost of works, including establishment, was estimated at Rs. 129.00 Crores. Unfortunately, due to financial constraints, Project could not be executed.

37. In 1953, State of Andhra Pradesh was constituted comprising certain areas which were located in the erstwhile Madras Presidency, including Project. Later in 1956, there was a major reorganisation of Southern States. A portion of erstwhile State of Hyderabad (Telangana 20 region) was added to the then State of Andhra Pradesh whereupon State of Andhra Pradesh (undivided) was formed. On 10.04.1969, Government of India constituted GWD Tribunal under ISWD Act, 1956 for adjudication of water dispute between basin States. During 1975-1978, various agreements were entered into between basin States which also included construction of Polavaram/Indira Sagar MIP.

38. GWD Tribunal gave report, under Section 5(2) of ISWD Act, 1956, on 27.11.1979. Thereafter, State of Andhra Pradesh (undivided) and State of Madhya Pradesh (undivided) along with State of Odisha entered into an agreement on 02.04.1980, resolving issue of submergence due to Polavaram/Indira Sagar MIP and this agreement was filed before GWD Tribunal on 03.04.1980. Thereafter, on 07.07.1980, GWD Tribunal gave award under Section 5(3) of ISWD Act, 1956. In the award, GWD Tribunal directed Central Water Commission to clear Polavaram/Indira Sagar MIP, as expeditiously as possible. A DPR was submitted to Central Water Commission on 21.03.1983. A modified project report was submitted in 1987, updated in 1990, taking into consideration comments of Central Water Commission. A further updated report was submitted to Central Water Commission in 2005. In the meantime, various meetings were held between basin States. DPR contained a proposal to construct protected embankments in States of Chhattisgarh and Odisha, subject to exercise of option as per GWD Tribunal‟s Award dated 07.07.1980.

39. On 19.09.2005, Ministry of Environment and Forest (hereinafter referred to as „MoEF‟) granted „Site Clearance‟ under Environment Impact Assessment Notification, 1994 (hereinafter referred to as „EIA 1994‟). Public hearing was conducted by Andhra Pradesh Pollution Control 21 Board (hereinafter referred to as „APPCB‟) at Polavaram (West Godavari District), Gummalladoddi (East Godavari District), Gannavaram (Krishna District), Vishakhapatnam (Vishakhapatnam District) and Bhadrachalam (Khammam District). Suggestions received from general public in public hearings were considered by the said Authorities. On 25.10.2005, EC was accorded to Polavaram/Indira Sagar MIP by MoEF as per provisions of EIA 1994.

40. W.P.(C) No. 3669/2006 was filed in High Court of Odisha wherein an order was passed on 22.03.2006 stating that State of Andhra Pradesh may proceed with construction of Polavaram/Indira Sagar MIP after complying with the requirements of all laws applicable in this regard, in such manner that no land/village/area, situated within the territory of State of Odisha, is submerged.

41. Matter was also taken in Supreme Court on the issue of resettlement and rehabilitation of Scheduled Tribes in I.A. Nos. 1572 and 1578 in W.P.(C) No. 202/1995, T. N. Godavarman Thirumalpad vs. Union Of India & Others and pursuant to the directions issued by Supreme Court, meeting was held under the Chairmanship of Secretary of Tribal Affairs, Government of India, with the officials of States of Andhra Pradesh, Odisha and Chhattisgarh, on the issue of clearance of resettlement and rehabilitation plan for Scheduled Tribes (project affected families). On 17.04.2007, after some clarifications given by Central Water Commission, Ministry of Tribal Affairs, Government of India, granted clearance to "Resettlement and Rehabilitation Plan for Scheduled Tribes" (project affected families).

42. Original Suit i.e., O.S. No. 4 of 2007 was filed by State of Odisha in October 2007, under Article 131 of Constitution before Supreme 22 Court, inter-alia challenging EC, Tribal Clearance and permission of Central Water Commission. Prayer for an interim direction to restrain State of Andhra Pradesh from going ahead with the said project, raising various grounds including grounds on the issue of public hearing, was also made. Suit was pending before Supreme Court when OA I was filed.

43. State of Andhra Pradesh proceeded ahead with construction of Polavaram/Indira Sagar MIP, despite an application for interim order was filed by State of Odisha, since no interim order was passed by Supreme Court. It only appointed an Expert Committee. On 19.09.2008, Court, in furtherance of report of Central Empowered Committee, granted approval for diversion of 187.29 hectares of reserved forest land in Papikonda Wild Life Sanctuary, subject to final outcome of IA Nos. 1572, 1578 and other IA, in respect of Polavaram/Indira Sagar MIP in W.P.(C) No. 202 of 1995.

44. On 29.12.2008, principal approval was granted under Section 2 of Forest Conservation Act, 1980 (hereinafter referred to as " FC Act, 1980 ") for diversion of 3731.07 hectares of forest land. Further, Central Water Commission also granted approval on 23.01.2009 to Polavaram/Indira Sagar MIP as per Award of GWD Tribunal, subject to certain conditions.

45. Expert Appraisal Committee (hereinafter referred to as „EAC‟) of MoEF, on 17.02.2009 cleared construction of protective embankments along Sabari and Sileru rivers in States of Chhattisgarh and Odisha. EAC, while directing PPs to initiate suitable action, requested appropriate authorities in States of Odisha and Chhattisgarh, to conduct public hearing in their respective States.

46. On the issue of construction of protective embankments, which were part of original plan, based whereon, EC was obtained, it was claimed that there was no requirement of conducting any public hearing. Further, protective embankments do not fall within the works/activities mentioned in EIA 2006. Despite it and without prejudice the above objections, State of Andhra Pradesh repeatedly requested States of Chhattisgarh and Odisha to conduct public hearings in their States and provide all relevant materials to all those States on several occasions. However, no public hearing could be conducted by these States on account of their inaction.

47. MoEF granted final approval on 28.07.2010 for diversion of forest land, pursuant to Supreme Court‟s order dated 19.09.2008, passed in W.P.(C) No. 202 of 1995. MoEF, erroneously treated proposal to construct protective embankments as change in scope of project. It issued letter dated 08.02.2011 to Government of Andhra Pradesh, directing to stop work so that the Project is reconsidered by EAC. MoEF said that it has decided that a comparative evaluation of information submitted by PPs earlier, while seeking EC in 2005 and changes proposed in the scope of Project, be undertaken. Polavaram/Indira Sagar MIP continued to be executed under supervision of Supreme Court.

48. Vide order dated 11.04.2011, passed in IA No. 1-7 in O.S. No. 4 of 2007, Supreme court appointed a Committee headed by Mr. M. Gopalakrishnan, a retired member of Central Water Commission, to inspect Polavaram/Indira Sagar MIP and submit report whether construction of dam is being carried out in terms of Award of GWD Tribunal. Committee submitted report, inter-alia, stating that it was 24 satisfied with the planning of Project and limited construction activities seen so far at Polavaram/Indira Sagar MIP site were in tune with approved project and Award of GWD Tribunal.

49. When Committee conducted inspection as per permission granted by Supreme Court, other States were also present. States of Chhattisgarh and Odisha were not only present but also raised some objections which are also raised before us in the present application (wrongly mentioned Appeal in OA though present one is OA). After considering said objections, Committee concluded that the work was being carried on in accordance with Award of GWD Tribunal; State of Andhra Pradesh claimed that all statutory procedures were observed in construction of project; construction was also in consonance with Award of GWD Tribunal which had attained finality and cannot be deviated by any party.

50. In August 2011, State of Chhattisgarh filed O.S. No. 3 of 2011 in Supreme Court under Article 131 of Constitution, with prayer to quash all clearances given to Polavaram/Indira Sagar MIP including EC. It also sought injunction against State of Andhra Pradesh for constructing above Project, raising various grounds including issue of public hearing. Suit was also pending and no interim order was passed by Supreme Court, when OA I was filed.

51. Vide letter dated 27.02.2013, MoEF informed State Government of Andhra Pradesh that Stop Work Order dated 08.02.2011 is being kept in abeyance for a period of 6 months. MoEF, vide letter dated 11.03.2013, passed under Section 5(q) of EP Act, 1986, directed Government of Andhra Pradesh not to impound water in the reservoir in Polavaram/Indira Sagar MIP without specific permission of Ministry. 25

Vide Office Memorandum dated 23.06.2015, MoEF stated that the direction issued vide letter dated 11.03.2013 asking Andhra Pradesh Government not to impound water in reservoir in Polavaram Project without specific permission of MoEF, shall remain in force unless stated otherwise. MoEF&CC issued another letter dated 03.07.2015, informing Government that "Stop Work Order" dated 08.02.2011 shall remain in abeyance for a further period of one year. A Committee was constituted by Ministry of Water Resources, River Development and Ganga Rejuvenation (hereinafter referred to as „MoWR,RD&GR‟) in December 2015, to critically examine various components of Polavaram/Indira Sagar MIP, incorporating outcome of detailed study on project implementation status vis-a-vis original design and its irrigation benefits. Report submitted by the said Committee said, designs of all components in the dam complex were approved by Central Water Commission as per Award of GWD Tribunal. Report also said that investigation and planning of Project was very meticulous and comprehensive and such investigation and planning has been done for many years before taking up execution of project. Stop Work Order dated 08.02.2011 was further kept in abeyance vide O.M. dated 12.08.2016 and, thereafter, vide O.M. dated 05.07.2017, for a further period of one year.

52. The chronology of clearances/permission granted to Polavaram/Indira Sagar MIP and intermediate events has been given by respondents 2 and 3, in the form of chart, as under:

53. Addressing issue on Purushothapatnam LIS, respondents 2 and 3 have stated that Polavaram/Indira Sagar MIP consists of mainly spillway with radial gates, earth cum rock fill dam, right and left side canal and power house. The work is proceeding with the fast pace and likely to be completed in a couple of years. Even after completion of Project, it will take some time for it to become fully operational in the light of pending issues such as construction of protective embankments in States of Chhattisgarh and Odisha and order of MoEF for not impounding water reservoirs etc. In these circumstances, State of Andhra Pradesh decided to take up Purushothapatnam LIS, in the interest of State and its inhabitants. Purushothapatnam LIS contemplates utilization of existing infrastructure including canals created as part of Polavaram/Indira Sagar MIP to provide water for drinking, industrial and agriculture during flood time. Purushothapatnam LIS consists of setting up of some pumps at two places, laying of pipes for providing intake and outtake for these pumps which would take water from river Godavari during flood time and pump it into an existing canal which is part of Polavaram/Indira Sagar MIP. At the second place, pumps would pump out water from existing canal into existing Yeleru Reservoir which also 27 has its own existing canal system. Besides providing water for drinking and industrial purposes, Purushothapatnam LIS will provide water for agricultural purposes also. However, entire land including land which fall under ayacut of Yeleru Reservoir, is contemplated to be irrigated under Polavaram/Indira Sagar MIP. Purushothapatnam LIS is not going to irrigate in a new area apart from what is already proposed to be irrigated under Polavaram/Indira Sagar MIP for which hydrological and environmental studies have already been conducted. Object and Scope of EIA studies, done for Polavaram/Indira Sagar MIP are as under:

54. Hence, in substance, there is no new Irrigation Project which is being constructed. Only pumps are being installed to draw flood water from River Godavari and to release it into existing canals. The work has been taken up to take advantage of the existing irrigation projects and infrastructure which has all statutory clearances, to make use of water going waste into sea and to provide benefits contemplated under Polavaram/Indira Sagar MIP before its completion and operationalization, during flood time only.

55. Disputing seriously about the requirement of EC for Purushothapatnam LIS, respondents 2 and 3 have said that the said Scheme does not require any prior EC under EIA 2006. The Scheme falls neither under the head "River Valley Project" nor under the head "Irrigation Project" as contemplated by EIA 2006. Purushothapatnam LIS does not contemplate/design to produce any hydroelectricity, hence does not fall under the head "River Valley Project". It also does not fall under the head "Irrigation Project" as all components which are to constitute an irrigation project under EIA 2006 are not present/contemplated in the said Scheme. The term "Irrigation Project" which was added by way of an amendment Notification dated 25.06.2014, has not been defined in EIA 2006. The standard Terms of Reference was issued by MoEF&CC in April 2015, for guiding PPs to prepare EIA/EMP (Environmental Management Plan) reports which were required to be submitted to the concerned authority for obtaining EC. Recourse can be taken to the said guidelines 29 to understand what project would fall under the items "River Valley Projects" and/or "Irrigation Projects".

56. A perusal of Guidelines shows that projects falling under Item 1(c) consist of construction of dam/barrage, main canal, branch canal etc. Purushothapatnam LIS does not entail construction of any dam, barrage, canals etc. There would be no submergence due to Purushothapatnam LIS. The studies/surveys required to be conducted under the above Guidelines are mandated keeping in view construction of dam/barrage, canals etc., since such construction would result in submergence of area, and adversely affect environment, but none of these components/aspects were present in Purushothapatnam LIS hence such study/survey was not required. The entire study of hydrology and environment for utilizing water from river Godavari at the place in question and for irrigation of the said land, has already been done as part of Polavaram/Indira Sagar MIP. The very same land would be irrigated through the very same canals by lifting water from same place from River Godavari for which all approvals and clearances were already obtained. Only till Polavaram/Indira Sagar MIP becomes fully operational, the land concerned would be irrigated by lifting water through pumps rather than through gravity. Purushothapatnam LIS would consist of setting up of some pumps at two places and laying of pipes for providing intake and outtake. The pumps would take water from River Godavari during flood time and pump it to an existing canal (Left Main Canal) which is part of Polavaram/Indira Sagar MIP. At the second place, pumps are going to pump out water from the said canal into existing Yeleru Reservoir which also has its own existing canal system. Neither any new area is involved for the purpose of irrigation nor any new work but the entire land is such which was already proposed to 30 be irrigated under Polavaram/Indira Sagar MIP. This work is sought to be undertaken by State of Andhra Pradesh to take advantage of existing irrigation projects and infrastructures which have all statutory clearances. It is to use water during flood time which otherwise would have wasted into sea.

57. Replying the averments contained in OA, parawise, respondents 2 and 3 have stated that the concern of applicants in para 1 is misplaced and without any basis. The work undertaken will not have any adverse impact upon environment, instead, will help in early benefits from Polavaram/Indira Sagar MIP by providing water for drinking, irrigation, industrial and other purposes. Moreover, Polavaram/Indira Sagar MIP already had statutory clearances including EC. Purushothapatnam LIS does not fall within the ambit of Schedule to EIA 2006 which lists projects and activities requiring prior EC. The work will not have any adverse impact on environment much less significant environmental damage as alleged by applicants. It will only alter nature of land near the site of pumping station which is very negligible, compared to huge positive impact which is going to have by enabling reaping of early benefits from Polavaram/Indira Sagar MIP. Laying on two pumping stations and pipelines is a work not attracted to call for prior EC under EIA 2006. Purushothapatnam LIS does not fall under the head "River Valley Project" or "Irrigation Project" under EIA 2006. Purushothapatnam LIS is not contemplated/designed to produce any hydroelectricity. Similarly, it is also not covered by the term „Irrigation Project‟; respondents are not doing anything contrary to law; there is no requirement of prior EC for Purushothapatnam LIS; entire work carried out respondents 2 and 3 is as per law, following due procedure; applicants have failed to show how Purushothapatnam LIS is or going to 31 affect them adversely; and the allegations are vague and without any basis.

Reply dated 06.10.2017 of respondent 3:

58. A separate reply has been filed on 06.10.2017, sworn on 11.09.2017 by Shri Shashi Bhushan Kumar, Secretary to Government, Water Resources Department, Government of Andhra Pradesh has been filed which is almost a replica of the above reply sworn by the same officer (on page 146 of paper book), hence we are not dealing it separately, to avoid repetition.

Reply dated 06.10.2017 of MoEF&CC (respondent 1):

Documents separately filed by respondents 2 and 3:

1638 Crore) was laid on January 5 by Chief Minister; scheme was aimed at linking Godavari River with Yeleru canal, and to divert 3000 Cusecs water to meet irrigation and drinking requirements of East Godavari District and neighbouring Visakhapatnam District. In a public meeting, Chief Minister said that Purushothapatnam LIS/Project would supply water to 2.15 lakh acres of ayacut in East Godavari District, besides meeting drinking water requirements of Visakhapatnam city and industrial needs of Visakhapatnam steel plant. Purushothapatnam LIS/Project is not part of Polavaram/Indira Sagar MIP as per reply given by MoWR,RD&GR and "Polavaram Project Authority", Government of India‟s letter dated 29.12.2017 on a Right to Information application given by applicants. Mere fact that Purushothapatnam LIS/Project is a temporary measure, as per stand taken by respondents 2 and 3, will make no difference in respect of requirement of prior EC under EIA 2006. Reference to Polavaram/Indira Sagar MIP is irrelevant since Purushothapatnam LIS/Project is not part of the said Project. It is not disputed that Purushothapatnam LIS/Project is not a "River Valley Project" but it is said that it is an "Irrigation Project" as it intended to irrigate more than 10,000 hectares of land, hence, covered by Entry 1(c) of EIA 2006. DPR of Purushothapatnam LIS/Project clearly states that the Project will irrigate a total of 67,614 acres of land (27,500 hectares) and it squarely comes within Entry 1(c) of EIA 2006. Reference of Guidelines and the manner interpreted by respondents 2 and 3 is not correct, in as much as, to attract Entry 1(c) of EIA 2006, the relevant fact is whether certain project covers culturable command area of more than 10,000 hectares or not. Respondents are trying to hide under 34 Polavaram/Indira Sagar MIP to justify Purushothapatnam LIS/Project, which has commenced without prior EC and it is nothing but simply a fraud played by respondents 2 and 3 who are constructing two different projects for irrigation of same land. The attempt to circumvent requirement of law under EIA 2006, under the veil of Polavaram/Indira Sagar MIP though Purushothapatnam LIS/Project is separate and distinct from the said Project, is mischievous and misleading. Contents of para 67 of reply are an admission on the part of State of Andhra Pradesh that a new project has been initiated but to avoid legal clearances, instead, hiding under veil of another independent project which has a separate statutory clearance and did not cover the work of Purushothapatnam LIS, a wrong stand has been taken. Compliance Affidavit dated 19.07.2019 by MoEF&CC

62. Respondent 1, (MoEF&CC), has filed a compliance affidavit dated 19.07.2019 sworn by Shri Sunamani Kerketta, Director, MoEF&CC, stating that DPR of Polavaram/Indira Sagar MIP does not include Purushothapatnam LIS/Project. Polavaram/Indira Sagar MIP was accorded EC vide letter dated 25.10.2005 by MoEF to provide water for drinking, industries and irrigation purposes. For the said purpose, two canals were constructed, i.e., Left Main Canal (hereinafter referred to as „LMC‟) and Right Main Canal (hereinafter referred to as „RMC‟). LMC, about 175 km long, will benefit four Districts namely, East Godavari, Vishakhapatnam, Srikakulam and Vizianagaram. RMC, about 174 km long, will benefit another four Districts namely, Krishna, West Godavari, Guntur and Prakasam under Krishna Delta region. Purushothapatnam LIS/Project was conceived by State of Andhra Pradesh to reap early benefit of Polavaram/Indira Sagar MIP. It was developed to utilize LMC constructed for Polavaram/Indira Sagar MIP by pumping 30 TMC of 35 water from river Godavari, during flood, into LMC, so that flood water going into sea can be utilized and early benefit can be drawn from existing structure of Polavaram/Indira Sagar MIP. A separate DPR was prepared for Purushothapatnam LIS by State of Andhra Pradesh, which was approved by MoWR,RD&GR.

Affidavit of MoWR,RD&GR:

Purushothapatnam LIS would lift 30 TMC of water from river Godavari, during rainy season, to existing LMC, for the purpose as envisaged for the said Project. Cost of project is about Rs. 1637.748 at 2016-2017 price level. Total land requirement is 326.38 acres, for construction of ten pumps in Stage I, having capacity of 3500 Cusecs, and eight pumps in Stage II, having capacity of 1400 Cusecs, to lift water from river Godavari. Possession of land has been taken from private people only; there is no displacement due to construction of Purushothapatnam LIS; though, two separate DPRs have been prepared for Purushothapatnam LIS and Polavaram/Indira Sagar MIP but Purushothapatnam LIS is pumping water from left bank of river Godavari to LMC of Polavaram/Indira Sagar MIP, therefore, as per provisions of EIA 2006 and amendment thereof, Purushothapatnam LIS seems to be integral 36 part of Polavaram Project and forms part of expansion of the said Project. Hence, as per para 7(ii) of EIA 2006, prior EC is required as an amendment to the existing EC of Polavaram/Indira Sagar MIP. If Purushothapatnam LIS is considered as a distinct project, then till Polavaram/Indira Sagar MIP is commissioned, Purushothapatnam LIS and LMC together would be treated as an irrigation project attracting provisions of EIA 2006, as amended from time to time. Thus, State of Andhra Pradesh will have to fulfill all requirement of EIA process as mandated in EIA 2006 (as amended from time to time) for construction of Purushothapatnam LIS including Scoping, Public Consultation and Appraisal. MoEF&CC has examined site visit report received from its Regional Office, Chennai and found that there is a clear case of violation of condition of EC which stipulates that Ministry reserves right to add additional safeguard measures subsequently, if found necessary, and to take action including revoking of clearance under the provisions of EP Act, 1986 , to ensure effective implementation of suggested safeguard measures in a time-bound and satisfactory manner. Accordingly, Ministry initially issued a show cause notice under Section 5 of EP Act, 1986, to State of Andhra Pradesh for non-compliance of EC conditions of the said project.

Additional Affidavit dated 27.01.2020 filed by MoEF&CC

64. An additional affidavit dated 27.01.2020 has been filed by MoEF&CC, (respondent 1), sworn by Shri Sunamai Kerketta, Director, MoEF&CC, stating that MoEF&CC has issued a show cause notice under Section 5 of EP Act, 1986 to State of Andhra Pradesh for non-compliance of prior EC. It has also directed State of Andhra Pradesh to stop all activities relating to Purushothapatnam LIS with immediate effect. In reply, MoEF&CC has received letter dated 11.09.2019 from Special Chief 37 Secretary, Water Resources Department, State of Andhra Pradesh and extract thereof is as under:

(Emphasis added)

65. PPs have also informed that operation of Purushothapatnam LIS has been stopped on receipt of show cause notice. MoEF&CC also sought comments, on the response received from State of Andhra Pradesh to show cause notice, from Central Water Commission, who communicated its stand vide letter dated 21.11.2019, and extract thereof reads as under:

(Emphasis added)

66. MoEF&CC in Additional Affidavit, thus, has said that though Purushothapatnam LIS has been taken up by Water Resources Department, State of Andhra Pradesh but it has not applied for any prior EC; as per State of Andhra Pradesh, Purushothapatnam LIS is using existing structure of Polavaram/Indira Sagar MIP for providing drinking water facility but before doing so, it was incumbent upon Polavaram Project Authority to seek prior permission from MoEF for use of its existing structures by Purushothapatnam LIS, even if Purushothapatnam LIS has been taken up to reap early benefit of Polavaram/Indira Sagar MIP till completion of construction of the said project which is declared a National Project and has been developed by Polavaram Project Authority, granted prior EC in 2005, but Polavaram Project Authority must have sought permission from MoEF to allow use of existing structure for drinking water supply by lifting water from river Godavari through Purushothapatnam LIS constructed by Water Resources Department, State of Andhra Pradesh. In response to show cause notice issued to Polavaram, it was clarified that Purushothapatnam LIS is not part of Polavaram/Indira Sagar MIP. Central Water Commission has also clarified the same and said: 39

(Emphasis added)

67. Lastly, it is said that lifting of water through Purushothapatnam LIS into the existing structure of Polavaram/Indira Sagar MIP requires permission/amendment of EC issued to Polavaram/Indira Sagar MIP, failing which lifting of water cannot be done. Purushothapatnam LIS, however, is meant only for lifting water for drinking and industrial use, therefore, provisions of EIA 2006 are not applicable. OA No. 350/2018 (hereinafter referred to as 'OA II') Pleadings of applicants:

68. OA II has been filed by two applicants - Madicharla Satyanarayana and Madicharla Ramachandram, who are brothers, under Sections 14 , 15 , 17 and 18 of NGT Act, 2010, with prayers that an independent inspection at Purushothapatnam LIS site in East Godavari District of Andhra Pradesh be directed to find out whether the said project is initiated at Polavaram/Indira Sagar MIP site as part of the said Project; study impact of project on river, environment and ecology; verify DPR of Polavaram/Indira Sagar MIP to confirm whether Purushothapatnam LIS is a part of Polavaram/Indira Sagar MIP and whether cost of Purushothapatnam LIS is included and approved by Central Water Commission and EAC, and submit report to Tribunal; declare Purushothapatnam LIS/Project illegal and contrary to provisions of EIA 2006 and EP Act, 1986 , direct PPs to operate project after obtaining EC from MoEF&CC (respondent 1) by conducting Socio-Environment Impact Assessments under EIA 2006, direct respondents 1 to 4 i.e. MoEF&CC, 40 MoWR,RD&GR, Polavaram Project Authority, Department of Land Resources, to initiate action against PPs for violating provisions of EP Act, 1986 and misleading authorities and also to fix responsibilities on the officials for violating provisions of EP Act, 1986 and EIA 2006, in construction of Purushothapatnam LIS and for misrepresenting statutory authorities.

69. Applicants-OA II have said that issue relating to damage to environment, property and River Godavari was raised in OA I (OA 175/2018). Tribunal heard it and passed various orders. However, during pendency of the matter, first phase of Purushothapatnam LIS was completed. Total project was targeted to be completed by end of June, 2018. Due to lack of proper planning and safety measures, huge pipelines got damaged, resulting in flooding of agriculture lands. Applicants-OA II filed MA No. 491/2018 in OA I, prayed impleadment, and sought directions as prayed in OA II. MA No. 491/2018 was subsequently allowed to be withdrawn vide Tribunal‟s order dated 02.05.2018.

70. Thereafter, OA II was filed seeking relief as stated above. Broadly, facts stated in brief are, that Purushothapatnam LIS/Project has been initiated without seeking prior EC under EIA 2006, hence it is illegal. Besides referring to the proceedings and orders passed in OA I, applicants-OA II have elaborated their grievance, including other farmers, in para 16 and onwards of the application, stating that their land was taken without conducting any statutory EIA and Social Impact Assessment (hereinafter referred to as „SIA‟) as per EIA, 2006 and in violation of Right to Fair Compensation and Transparency in Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 41 „Land Acquisition Act, 2013‟); PPs have grabbed land, by deploying hundreds of police personnel to fields; started excavation/damaging fields with heavy machines; no public hearing was conducted; no alternative study was conducted; no EIA study was done as per law and EIA, 2006; applicants are small farmers and their land was acquired by State of Andhra Pradesh vide Award No. 03/2017 dated 25.07.2017, delivered by Sub-Collector of Rajahmandravaram; Project construction, however, was initiated in January, 2017 itself, i.e., prior to acquisition of land; showing high handedness of PPs and illegality committed by Government Authorities; land taken by State is very fertile, situated just besides River Godavari on which all over the year, crops can be grown; due to forceful acquisition of land, without conducting any alternative study (i.e., SIA and EIA), applicants and other affected farmers have become land less; PPs acted illegally, with the sole intention to complete Project without any regard to law and norms of environment, rehabilitation and resettlement; and applicants were not paid a penny and instead forced and intimidated, to deprive them of their land.

71. Applicants-OA II with 25 other affected farmers approached High Court of Hyderabad in Writ Petition No. 29802 of 2017, seeking following relief:

(Emphasis added)

72. It is also said in OA II that Writ Petition is pending. Neither any interim order was passed nor petition has been decided. However, issues raised and reliefs sought in Writ Petition are different than the issues raised in OA II.

73. Applicants-OA II have further pleaded that MoEF&CC has taken stand in OA I that PPs have not even applied for Scoping and EC under EIA 2006 for executing Purushothapatnam LIS which shows that the Project has been illegally commenced; PPs are misleading in their stand that Purushothapatnam LIS, initiated in 2017, is part of Polavaram/Indira Sagar MIP which was accorded EC on 24.10.2005; Purushothapatnam LIS is a Category 1(c) (ii) Project since cultivable command area of Project is about 2.15 lakhs acres which is much more than 10,000 hectares, hence, it required mandatory prior EC; as per official record, there are several Lift Irrigation Projects, some are part of Polavaram/Indira Sagar MIP and some are not; as per official website of Water Resource Department, Andhra Pradesh, Pushkara Lift Irrigation Scheme, providing irrigation to 1,85,906 acres of land, is shown as part of Polavaram/Indira Sagar MIP; similarly, Torrigedda Pumping Scheme to provide irrigation for 13,758 acres situated at Purushothapatnam village is shown as part; however, Purushothapatnam LIS is a separate and new project sanctioned in 2016 and initiated in January 2017; and State of Andhra Pradesh is misleading Tribunal by claiming that Purushothapatnam LIS is part of Polavaram/Indira Sagar MIP, hence no prior EC under EIA 2006 is required for Purushothapatnam LIS.

74. A chart comparing Polavaram/Indira Sagar MIP and Purushothapatnam LIS is given in OA II, as under:

Polavaram Project.

75. For Purushothapatnam LIS, Government Order Ms. No. 100 was issued on 14.10.2016 while EC for Polavaram/Indira Sagar MIP was issued by MoEF on 25.10.2005. It shows that Purushothapatnam LIS was not part of DPR, considered by EAC of MoEF, when EC was accorded to Polavaram/Indira Sagar MIP. Further, Polavaram/Indira Sagar MIP 46 consisted of only Spillway, radial gates, Earth cum rockfill dam, Right and Left bank canals and power house, hence, it is confirmed that large scale pumping systems are not part of Polavaram/Indira Sagar MIP at Pattiseema and Purushothapatnam; due to lack of safety measures and planning, major disaster took place during construction of Purushothapatnam LIS; heavy pipelines got damaged during trail works and submerged hundreds of acres of agriculture lands and damaged crops; it shows that Project has been initiated without basic precautions and planning; as per report dated 24.08.2017 published in daily newspaper „The Hindu‟, first phase of Purushothapatnam LIS was completed in 2017; in States of Telangana, Karnataka and Maharashtra, for Lift Irrigation Projects, initiated by respective Governments and Departments, detailed study was conducted on various components under EIA 2006; they applied for Terms of Reference (ToR), Scoping and prior EC; Purushothapatnam LIS/Project is similar to those Projects; construction and execution of Purushothapatnam LIS/Project without prior EC is illegal and against the provisions of EIA 2006 read with EP Act, 1986 ; many farmers including applicants have lost their livelihood and have become agricultural labour for their sustenance; and their family members have been seriously adversely affected towards education, marriages and other domestic aspects due to forceful acquisition of land by State of Andhra Pradesh.

Initial Proceedings in Tribunal in OA II

76. OA II was registered in NGT on 24.05.2018, placed before the Bench on 28.05.2018 when notices were issued. In response thereof, replies filed by State of Telangana (respondent 7), MoEF&CC (respondent

1), State of Chhattisgarh (respondent 9), respondents 6, 10 and 11, MoWR,RD&GR and Polavaram Project Authority (respondents 2 and 3, 47 respectively), Ministry of Tribal Affairs (respondent 5), State of Odisha (respondent 8) and Department of Land Resources, Ministry of Rural Development (respondent 4).

Reply dated 10.07.2018 filed by State of Telangana (respondent 7)

77. In a short reply dated 10.07.2018, filed on 25.07.2018 by State of Telangana (respondent 7), stand of applicants has been supported stating that River Godavari is an interstate river whose basin area spread into other States like Telangana, Maharashtra, Karnataka, Odisha, Chhattisgarh and Madhya Pradesh. State of Andhra Pradesh has taken up the above Project without obtaining any prior approval from MoEF&CC as per EIA 2006; State of Andhra Pradesh has not approached Government of India through Godavari River Management Board (hereinafter referred to as "GRMB")/Apex Council, as per Sections 84 (3)

(ii) and 85 (8) (d) of APR Act, 2014, which necessitated to apprise GRMB and approval of proposal by Apex Council; and State of Andhra Pradesh has also not approached Ministry of Tribal Affairs and MoWR,RD&GR for seeking required approvals, hence, Project is illegal. State of Telangana has said that OA II be allowed and Purushothapatnam LIS be declared illegal and against provisions of EIA, 2006 and EP Act, 1986 . It has also requested Tribunal to direct PPs to operate Project only after obtaining EC from MoEF&CC, after conducting Socio-Environment Impact Assessments under EIA 2006.

Reply dated 27.07.2018 filed by MoEF&CC (respondent 1)

78. Reply dated 27.07.2018, submitted by MoEF&CC (respondent 1) is very short, in just two pages. It is said that since no proposal from State of Andhra Pradesh, for prior EC has been received by MoEF&CC, with regard to Purushothapatnam LIS, hence, Ministry has nothing to do in the matter and it may be deleted from array of the parties. 48 Reply dated 07.08.2018 of State of Chhattisgarh (respondent 9)

79. State of Chhattisgarh (respondent 9), in its reply dated 07.08.2018, filed on 13.08.2018, has stated that since no relief has been sought against it, hence, it is only a proforma party. However, it is pointed out that in regard to Polavaram/Indira Sagar MIP, respondent 9 has already filed Original Suit No. 03/2011 in Supreme Court.

Combined reply dated 28.08.2018 filed by respondents 6, 10 and 11

80. On behalf of respondents 6, 10 and 11, a combined reply dated 28.08.2018 has been filed on 30.08.2018. It is sworn by Shri Aditya Nath Das, Special Chief Secretary (In-charge), Water Resources Department, Government of Andhra Pradesh. In this reply, two preliminary objections have been raised; Firstly, OA II is barred by limitation; and secondly, States of Telangana, Odisha and Chhattisgarh are not concerned with Purushothapatnam LIS, no relief has been sought against them, therefore, they have been wrongly impleaded; applicants have impleaded them only to take advantage of interstate dispute between the above respective States; in regard of execution of Polavaram/Indira Sagar MIP, suit is pending in Supreme Court; Purushothapatnam LIS is not covered by EIA 2006 and no EC is required. Rest of the reply is almost similar to the stand taken by State of Andhra Pradesh in OA I, hence, we are not repeating the same.

Combined Reply dated 27.08.2018 by respondents 2 and 3

81. On behalf of respondents 2 and 3, i.e., MoWR,RD&GR and Polavaram Project Authority, respectively, a combined reply dated 27.08.2018 has been filed on 30.08.2018, stating that as per DPR, Polavaram/Indira Sagar MIP is different and Purushothapatnam LIS is not part thereof; there is no association between two projects; cost of Purushothapatnam LIS has not been included in DPR of 49 Polavaram/Indira Sagar MIP and Purushothapatnam LIS has never been accepted by Advisory Committee of MoWR,RD&GR.

Reply dated 30.08.2018 of Ministry of Tribal Affairs (respondent 5)

82. In the reply dated 30.08.2018 filed on 01.09.2018 by Ministry of Tribal Affairs (respondent 5), reference has been made to reply submitted on behalf of Water Resource Department, Government of Andhra Pradesh in OA I and the stand taken therein. It is said that two issues involved are:

(Emphasis added)

83. On the role of Ministry of Tribal Affairs, it is said that clearance to the Resettlement and Rehabilitation Plan for affected Scheduled Tribe Families was provided for Polavaram/Indira Sagar MIP, and such clearance was given vide letter dated 17.04.2007; so far as, execution of Purushothapatnam LIS without prior EC is concerned, this matter relates to respondents 1 to 4, and Ministry of Tribal Affairs has nothing to do in the matter and it has been unnecessarily been impleaded; it is not even a nodal Ministry for giving EC and also has nothing to do for deciding whether Purushothapatnam LIS is part of Polavaram/Indira Sagar MIP or not.

Affidavit (Reply) dated 30.08.2018 of State of Odisha (respondent 8)

84. State of Odisha (respondent 8), in its reply dated 30.08.2018, filed on 06.09.2018, has given a brief note in respect of Purushothapatnam LIS stating that various Lift Irrigation Projects like Pushkara, Purushothampatanam, Pattiseema, Tadipudi etc. are operating in the 50 downstream of Polavaram/Indira Sagar MIP, incurring cost thousands of Crores of Rupees to provide water for most of the command area of Polavaram/Indira Sagar MIP, besides transferring 80 TMC of water to Krishna Basin; they will also provide water for industrial and drinking purposes for Visakhapatnam District in Andhra Pradesh; as such, demand on Polavaram/Indira Sagar MIP will considerably reduce and the said Project can be re-designed as per GWD Tribunal which will significantly reduce submergence in States of Odisha, Telangana and Chhattisgarh and as a result thereof, vulnerable Tribals and large areas of forest lands in territory of these States, will be protected from submergence due to formulation and construction of Polavaram /Indira Sagar MIP, considering balance demand to be met out of this Project; there is no submergence in State of Odisha due to construction of Purushothapatnam LIS; and Purushothapatnam LIS would help in reducing submergence of land and displacement of people in territory of Odisha as well as in other States, i.e., Telangana and Chhattisgarh.

85. With regard to the plea of lack of prior EC, damage to agricultural land and crops due to breakage of heavy pipelines etc. and non- consideration of environmental impact etc. for executing Purushothapatnam LIS, State of Odisha has not given any comments/reply but in response to the averments contained in para 9 of OA II, it is stated that no EC has been given by MoEF&CC. Review Application No. 46/2019 in OA No. 48/2019 (hereinafter referred to as 'OA-III')

86. Review Application No. 46/2019 has been filed with a prayer to review judgment dated 13.08.2019 whereby OA No. 48/2019, Vatti Vasant Kumar & Another vs. Union of India & Others (i.e., „OA III‟) 51 was disposed of. First, we propose to give brief factual matrix of OA III and, thereafter, deal with Review Application.

Pleadings of Applicants in OA III

87. OA III was filed by two applicants, Shri Vatti Vasant Kumar, resident of M.M. Puram, Pulla Village, Bhimadolu Mandal, District West Godavari, Andhra Pradesh and Shri Trinath Reddy, resident of Ramchandrapuram Village and Mandal, East Godavari District, Andhra Pradesh, praying to:

Penna Rivers Linking Project (hereinafter referred to as „G.P.R L.P.‟) on the upstream of Dawaleswaram Barrage and direct to stop work, if found illegal, causing adverse impact on Godavari Delta region, flora and fauna, of Godavari river;

(iii) Direct NWDA to submit comprehensive report on the progress of inter linking of rivers project, particularly linking of Godavari- Krishan-Penna rivers;

(iv) Direct respondent 6 (National Monitoring Committee on Land Acquisition and Rehabilitation) and respondent 7 (Monitoring Committee for Rehabilitation and Resettlement works pertaining to Polavaram Project) to conduct study on the impact 52 on farmers land losers, fishermen, due to authorized/unauthorized projects initiated by State of Andhra Pradesh without providing compensation, rehabilitation and resettlement;

(v) Direct Appraisal agencies under Union of India to assess loss, damage caused due to unscientific implementation of Inter Linking of Rivers Project by State of Andhra Pradesh and to take action against erring officials/agencies;

(vi) Direct Vigilance Commission of Union Environment Forest Ministry and Union Water Resource Ministry to conduct inquiry into corruption, illegal sites, mal practices by public and private authorities in execution of Major Irrigation Projects in State of Andhra Pradesh without statutory approvals from Government of India.

88. Facts, stated in the application, in brief are, that applicants are farmers/land owners in Godavari Delta and East Godavari District, respectively; Respondent, State of Andhra Pradesh has proceeded to execute Major Lift Irrigation Projects without prior approval of concerned authorities, adopting unscientific approach, which has caused millions of farmers and their families in State of Andhra Pradesh in deep distress due to lack of water from SACB for Rabi crop and domestic water between January to June months; due to excessive pumping of water from river, aquatic life, flora and fauna got adversely affected in river Godavari, on the upstream of Doiwaleswaram Barrage; Applicant-1 challenged one Major Lift Irrigation Project, i.e., Pattiseema LIS as part of Krishna-Godavari-Penna Linking Project(hereinafter referred to as „KGP Linking Project‟) in W.P. No. 5931 of 2015, filed before High Court of Hyderabad; during pendency of Writ Petition, project was completed and 53 water is being supplied for the past three seasons; and similarly, Applicant-II also filed W.P. No. 10457 of 2015 which is also pending in High Court of Hyderabad.

89. Elaborating facts giving rise to OA III, applicants have said that Godavari is an important river in India, flows from Western to Southern India, length of 1462 km, and considered to be second largest river in the country (after Ganga); drainage basin of river Godavari is present in seven States namely, Chhattisgarh (respondent 13), Maharashtra (respondent 12), Andhra Pradesh (respondent 8), Telangana (respondent

9), Madhya Pradesh, Karnataka (respondent 11) and Odisha (respondent

10); source of Godavari is situated near Trimbak in Nashik District of Maharashtra wherefrom it runs towards East, traversing Deccan Plateau and ultimately empties into Bay of Bengal at Yanam, Antharvedi in East Godavari District and Narasapuram in West Godavari District, Andhra Pradesh; river moves into Telangana State at Kandhakurthi in Nizamabad District, moves past Deccan terrain and subsequently bends to run according to south-easterly course till it pours into Bay of Bengal via three mouths; a dam namely Sri Ram Sagar was built across river Godavari in 1964-1969 to meet irrigation requirements of districts like Nizamabad, Adilabad, Warangal, Karimnagar and Khammam in State of Telangana; over Rajahmundry in Andhra Pradesh, a barrage is located supplying water for cultivation purposes; beneath Rajahmundry, river Godavari splits into three torrents that broaden into a big river delta, which has a wide spread passable irrigational channel arrangement; Dowlaiswaram Barrage connects area, to Krishna river delta, to the south-west; applicants and other farmers of Godavari Delta area are cultivating land taking water from Godavari river, since 3-4 generations; Godavari delta area in Andhra Pradesh is popularly known as rice bowl 54 of the country; Bachawat Tribunal and Central Water Commission awarded 300 TMC of water to Dowlaiswaram ayacut for distribution to Godavari delta; Bachawat Award was signed by all respective Chief Ministers and concerned States are obliged to follow the same in letter and spirit; GWD Tribunal headed by Justice Bachawat was constituted in April 1969 for adjudication of inter-state water disputes regarding Godavari river, by Government of India; while proceedings were pending, multiple agreements were entered between different States which were taken note by Tribunal and at the request of the concerned States, those agreements were included in final Award of GWD Tribunal; the agreements, in nut-shell, provided that party States would be free to utilize flow of Godavari or its tributaries up to certain specified points; for example, State of Maharashtra was free to utilize flow in Godavari up to Paithan and State of Andhra Pradesh was free to utilize Godavari flow below Paithan; bilateral agreements also specify for sharing of water of certain tributaries of Godavari and for construction of certain inter-state projects such as Inchampally and Polavaram with specified Full Reservoir Levels; agreement on Polavaram/Indira Sagar MIP already provided for diversion of 80 TMC of Godavari water from Polavaram/Indira Sagar MIP to Krishna river, upstream of Vijayawada ayacut; quantity of water diverted in Krishna river will be 45 TMC in Andhra Pradesh and 35 TMC in States of Karnataka and Maharashtra each; Polavaram/Indira Sagar MIP was liable to be completed by June 2019 having live storage of 75 TMC of water and dead storage of 120 TMC; with live storage and flood flows from July to October, Krishna Delta and ayacut was intended to be stabilized with the diversion of 80 TMC of water through Polavaram Right Canal; question of inter linking of rivers was considered by Supreme Court in 2012(4)SCC51, Re: 55

four priority links under Peninsular Rivers Components have been identified for preparation of DPR, i.e., Ken-Betwa Link Project (hereinafter referred to as „KBLP‟) Phase-I and II; Damanganga-Pinjal Link Project (hereinafter referred to as „DPLP‟), Par-Tapi-Narmada Link Project(hereinafter referred to as „PTNLP‟) and Mahanadi-Godavari Link Project (hereinafter referred to as „MGLP‟); DPRs of KBLP Phase-I and II, DPLP and PTNLP have been completed; Techno-economic clearance and other statuary clearance of KBLP Phase-I was accorded; based on the request of Government of Madhya Pradesh, DPRs of projects included under KBLP Phase-II for example, Lower Orr Dam, Bina Complex Projects and Kotha Barrage have been completed by NWDA/Government of Madhya Pradesh and submitted for techno-economical appraisal to CWC; Techno-economic clearance of DPLP was accorded subject to statutory clearance; DPR was submitted for PTNLP for technical appraisal in CWC; DPR of MGLP could not be taken up since Government of Odisha was not agreeable for MGLP; a mother link of 9 link system, i.e., Mahanadi, Godavari, Krishna, Pennar, Palar, Cauvery, Vaigai and Gundar linkage due to large submergence involved in Manibhadra Dam; acting upon the suggestions of Government of Odisha, NWDA prepared a preliminary revised proposal of MGLP with reduced submergence and same has been submitted to Government of Odisha for consideration; Implementation of inter linking of river projects involves various steps such as preparation of PFRs/FR, negotiation and consensus among concerned States, preparation of DPRs, clearance from appraisal agencies including clearance by MoEF&CC and Ministry of Tribal Affairs, techno-economic clearance by Advisory Committee on Irrigation, Flood Control & Multipurpose Projects of MoWR,RD&GR; 57 investment clearance and actual construction time required for completion of project as per DPR; thus, for implementation of interlinking of rivers, certain issues which involved are:

environmental impact study has been conducted and, instead, Revenue Authorities of State of Andhra Pradesh have proceeded to acquire land for the aforesaid project; some farmers filed W.P. No. 35641 of 2018 wherein interim order was passed by High Court of Judicature at Hyderabad; the third Project, i.e., Purushothapatnam LIS was sanctioned by State of Andhra Pradesh vide Government Order Ms. No. 100 dated 14.10.2016 with the objective to provide water for irrigation, domestic and industrial purposes in various districts of Andhra Pradesh but without any EC; project is partly completed and water has been pumped for irrigation in Khariff 2018 season; the next river water linking project initiated by State of Andhra Pradesh is Interlinking of Godavari-Penna Rivers which was designed to be completed in five phases at a cost of Rs. 83796 Crore; the first phase was to begin with diversion of Godavari water at Harichandrapuram and construction of a Lift Irrigation Scheme at Nakerikalu, 80 km from Vijayawada; estimated cost of first phase was Rs. 6020 Crores and requirement of 3500 acres of land; for execution of the said project of Phase-I, Government Order Ms. No. 51 dated 13.06.2018 was issued by State of Andhra Pradesh allocating Rs. 59 6020.15 Crores for the project; State of Andhra Pradesh, thus, is going ahead with various lift irrigation projects without any appropriate clearance/approval/permission from concerned and competent authorities; the aforesaid projects, are being executed by utilizing infrastructure created for Polavaram/Indira Sagar MIP which is a national project of Government of India; State of Andhra Pradesh is taking shelter behind a pretext that its Lift Irrigation Projects are part of Polavaram/Indira Sagar MIP since canals of the Project are being used for drawing water; the stand is totally illegal as it amounts to change of Scope of Polavaram/Indira Sagar MIP also and this could not have been done without seeking prior approval/clearance from concerned statutory authorities; the whole concept of interlinking of rivers has been changed by State of Andhra Pradesh causing serious environmental issues and loss to Godavari Delta farmers; Godavari Delta which was getting irrigation water for more than 100 years has been deprived water during Rabi season, after initiation of Godavari-Krishna link; by Pattiseema LIS, in the past three seasons, East Godavari and West Godavari Districts have been facing severe water crisis; revenue and Irrigation Authorities are directing farmers not to cultivate regular crops during Rabi season; due to drying up of river Godavari, ground water level has also fallen down in the region and aquatic life of river is also adversely affected which has never happened in the history of Dowlaiswaram Barrage; as per proposals submitted by Union of India, interlinking of Godavari- Krishna-Penna rivers was to be executed after completion of Polavaram Dam, by way of gravity method, but State of Andhra Pradesh, acting in hurry, completed Lift Irrigation Scheme in the downstream of Polavaram /Indira Sagar MIP on the reservoir of Dowlaiswaram Barrage, causing water scarcity for Godavari Delta region; detailed well planned schemes 60 were prepared by NWDA and other specialized bodies, constituted for the purpose, under the order of Supreme Court in Re: Networking of Rivers (supra) but State of Andhra Pradesh has adopted unscientific method which has only resulted in dispute between States of Andhra Pradesh, Telangana, Karnataka and Maharashtra; and, EIA 2006 contemplated prior EC before commencement of certain projects and Major Lift Irrigation Projects, initiated by State of Andhra Pradesh, are within the purview of EIA 2006 but no prior approval from competent statutory authority has been obtained by State of Andhra Pradesh.

91. In the aforesaid factual backdrop, applicants have raised following substantial questions relating to environment arising from implementation of EP Act, 1986 , Water Act, 1974 and Air Act, 1981:

(Emphasis added) 61 Initial proceedings in OA III before Tribunal

92. OA III was taken up by Principal Bench at New Delhi on 08.01.2019 and noticing contentions raised on behalf of applicants, Tribunal observed that applicants, at the first instance, may approach APPCB and/or MoEF&CC, as the case may be, and the said two authorities were directed to submit a factual report to Tribunal.

93. On 16.02.2019, applicants filed IA No. 115/2019 with a prayer to grant interim relief, i.e., stay of execution of KGP Linking Project and Chintalapudi LIS till the matter is decided by Tribunal and also to restrain respondents from grabbing/procuring land from farmers for the said projects. Complaint of Applicants in the above IA, was, that as per Tribunal‟s order dated 08.01.2019, representation was submitted by applicant-1 to MoEF&CC on 14.01.2019. On the one hand, no factual report has been submitted to Tribunal, while, on the other hand, PPs are proceeding ahead with the projects. Reference was also made to the orders passed in OAs 175/2018 and 350/2018, i.e., OA I and II.

94. MoEF&CC did not submit any report but APPCB filed reply stating that projects required EC but neither such clearance was obtained nor Consent to Establish was obtained under Water Act, 1974 and Air Act, 1981. Noticing these facts, Tribunal, passed an interim order dated 30.05.2019, restraining State of Andhra Pradesh from proceeding further on projects in question till requisite clearances/consent are obtained.

95. A Joint Committee was constituted by order dated 30.05.2019. Report dated 28.06.2019 was submitted by the said Committee through Shri P.K. Gupta, Scientist-E, Central Pollution Control Board (hereinafter referred to as „ CPC B‟). The report is signed by Dr. M. Madhusudanan, Additional Director, CPC B, Regional Directorate (South), Bengaluru, Shri 62 B. Siva Prasad, Joint Chief Environmental Engineer, APPCB, Vijayawada, Dr. C. Palpandi, Scientist-C, MoEF&CC, Regional Office (SEZ), Chennai and Smt. D. Sowmya, Scientist-D, CPC B, Regional Directorate (South), Bengaluru.

96. The report considered following projects:

97. Observations with reference to KGPR Linking Project are in para 3.0, as under:

(iii) Presently, only Phase-I of the project is proposed which involves transfer of 73 TMC water from river Krishna at Harischandrapuram to Nagarjuna Sagar Jawahar Canal at Nekarikellu. Though PPs were of the view that no EC under EIA 2006 or consent under Water Act, 1974 and Air Act, 1981 was required but Committee was of the view that before 63 proceeding with any construction activities, DPR must be prepared and necessary statutory clearance/EC from MoEF&CC and State Government must be obtained.

(Emphasis added)

98. Aforesaid report was considered by Tribunal on 13.08.2019. Tribunal also noticed that similar issue was involved and pending for consideration in OA No. 175/2018 (OA-I) and OA No. 350/2018 (OA-II). Tribunal accepted report and disposed of OA III in terms of recommendations of joint Committee report.

Review Application No. 46/2019 in OA No. 48/2019

99. Applicant-Vatti Vasanth Kumar has filed RA No. 46/2019 with prayers that the judgment dated 13.08.2019, has made certain observations/facts in paragraphs 4 and 5, wrongly, hence the order, to that extent, should be reviewed. Further, Tribunal should direct joint Committee to verify facts on three Lift Irrigation Projects with River Valley Projects Division (Impact Assessment) of MoEF&CC, Polavaram Project Authority, Central Water Commission and other appraisal agencies of Union Water Resources Ministry and direct them to submit a report and thereafter, pass order on the prayer made in OA III pertaining to ecology, loss caused due to Lift Irrigation Schemes on Godavari River in State of Andhra Pradesh.

100. Applicants-OA III pointed out in review application that observations of Tribunal in para 5 that due clearance was granted to Pattiseema LIS by MoEF&CC is not correct in as much as while granting EC to Polavaram/Indira Sagar MIP in 2005, Pattiseema LIS and Purushothapatnam LIS were never considered. On the contrary, show cause notice was issued by MoEF&CC to State of Andhra Pradesh for 64 treating and taking up Purushothapatnam LIS as part of Polavaram/Indira Sagar MIP, without prior EC/amendment to EC granted to Polavaram Irrigation Project. Further, MoWR,RD&GR has stated repeatedly in Parliament that Pattiseema LIS and Purushothapatnam LIS are not part of Polavaram/Indira Sagar MIP and money spent on the said projects, will not be reimbursed by Union of India. On the complaint made by applicant, reply was given by Polavaram Project Authority, vide letter dated 10.04.2019 that Polavaram Project Authority is dealing only with Polavaram/Indira Sagar MIP and, therefore, information sought in respect of other projects is not available with them. In another reply to the complaint made by applicant, GRMB vide letter dated 05.04.2019, stated that clarification sought on DPR of Pattiseema LIS was not submitted by State of Andhra Pradesh. In the case of Purushothapatnam LIS, GMRB repeatedly requested State of Andhra Pradesh to furnish DPR for appraisal to grant technical clearance, but no such DPR was submitted by State of Andhra Pradesh. In respect of Chintalapudi LIS, Central Water Commission had returned DPR with remarks, and requested to revise DPR but revised DPR was not submitted by State of Andhra Pradesh. As far as Interlinking of Godavari- Penna Rivers, i.e., GPR Linking project is concerned, DPR was not submitted for study of feasibility and Technical Clearance which shows that Major Lift Irrigation Projects with an estimated cost of Rs. 95,000 Crores were initiated without obtaining EC, Technical clearance and approval of Polavaram Project Authority.

101. These facts stated in review application were noticed by Tribunal while considering it on 06.09.2019 and prima facie found correct. Consequently, notices were issued to State of Andhra Pradesh, MoWR, RD&GR, and MoEF&CC.

102. When matter came up before Tribunal on 20.02.2020, RA No. 46/2019 was directed to be listed along with OA No. 175/2018 (OA I). Later, on 09.09.2020, referring to order passed in OA 175/2018 (OA I), Tribunal directed that the Committee, constituted therein, may determine amount of compensation and submit report. It was observed that since Projects have already been completed, PPs may apply for EC, prepare EIA/EMP which may be evaluated by MoEF&CC and decision on the issue of grant of EC and conditions subject to which such EC is to be granted, may be taken. Application was permitted to be made within one month and further steps were directed to be taken and completed within six months. Tribunal also observed that MoEF&CC and CPCB may determine the amount of compensation payable, for undertaking Project without EC.

OA No. 857/2018 (hereinafter referred to as 'OA IV') Pleadings of applicant in OA IV

103. OA IV has been filed by Dr. Pentapati Pullarao (hereinafter referred to as „applicant-OA IV‟) on 29.10.2018, under Sections 14 , 15 , 17 and 18 of NGT Act, 2010. It was registered on 31.10.2018 and listed before the Bench on 01.11.2018. Here, grievance was primarily on account of large scale dumping activity by Polavaram/Indira Sagar MIP Contractors near residential areas and contrary to DPR.

104. Applicant-OA IV earlier also approached Tribunal vide OA 309/2015, Dr.P. Pullarao vs. Union of India & Others , raising grievance with regard to damage caused to environments due to illegal dumping of muck etc., while executing Polavaram/Indira Sagar MIP. Tribunal did not issue notice to respondents, instead disposed of OA 309/2015 (supra) vide order dated 12.08.2015, directing APPCB, State of Andhra Pradesh and Polavaram Project Authority to conduct joint 66 inspection and issue appropriate directions in the interest of environment and ecology.

105. Thereafter, applicant-OA IV came up before Tribunal in OA 66/2017, Dr. Pentapati Pullarao vs. Union of India & Others , wherein, on 10.03.2017, Tribunal passed an order, constituting a joint inspection team of MoEF&CC and representative of CPC B, directing them to visit site and submit a detailed report before Tribunal. Consequently, joint inspection team conducted site visit on 30.04.2017 at Indirasagar (Polavaram) Multi-purpose Project in Andhra Pradesh, held discussions with Project Authorities of Polavaram Project on 30.04.2017 and 01.05.2017, and submitted report, along with affidavit dated 12.05.2017, filed on behalf of MoEF&CC. Report said that Polavaram/Indira Sagar MIP was granted EC in 2005 and revisited in 2009; declared „National Project‟ in 2014; as per 2010-2011 price level, total cost of project was Rs. 16,010.45 Crores; a Multi-purpose Project for irrigating 7.2 lakh acres land in Districts East Godavari, West Godavari, Vishakhapatnam and Krishna of state of Andhra Pradesh and also to benefit upper riparian States of Odisha and Chhattisgarh; there is a proposal to develop a hydroelectric project with an installed capacity of 960 MW (12×80 MW); another proposal was, to give 80 TMC ft. water to river Krishna and 23.44 TMC ft. water to Vishakhapatnam city for industrial needs and drinking water to a population of 28.50 lakhs, enroute to both the canals, covering 540 villages; for States of Odisha and Chhattisgarh, 5 TMC ft. and 1.5 TMC ft. water, respectively, could be lifted from pondage of Polavaram/Indira Sagar MIP, for use in their territories; construction work of Project started in the year 2005-2006, and achieved progress of about 25.57% towards Polavaram Head Works, 61.75% towards LMC, 86.05% towards RMC; overall progress, till the time of 67 inspection by joint Committee was 43.39%, spending, till that date, a sum of Rs. 9,615 Crores on the Project; muck was dumped at Kadeamma Canal Dumping Site (D6, 203 acres of land) located near Polavaram village and Mammidigondi R&R Colony; for dumping of muck, Moolalanka area (203 acres) was acquired by State of Andhra Pradesh by Notification of 2016, as per provisions of "Land Acquisition Act, 2013"

106. Report further said that Committee was informed that area between boundary of Reserve Forest and that of Papikonda National Park was proposed as Eco Sensitive Zone (ESZ) for which a draft Notification 68 was submitted by State of Andhra Pradesh to MoEF&CC in 2013 but no declaration, as such, was made.

107. This Report dt.12.05.2017 was considered by Tribunal on 29.08.2017 and OA 66/2017 (supra) was disposed of by directing Chief Secretary, State of Andhra Pradesh and representative of MoEF&CC to appreciate controversy properly, examine entire issue after hearing applicant and pass appropriate order. Liberty was given to applicant to challenge order, if any, passed by Chief Secretary.

108. OA IV has been filed raising grievance that no action was taken by the authorities concerned, despite above orders of Tribunal. Applicant has sought following reliefs:

(Emphasis added)

109. Brief facts stated by applicant-OA IV, after referring earlier two applications filed by him (noted above), are, that Polavaram Project Authority started dumping of project waste near Polavaram Panchayat which is a major Panchayat, with a population of about 20000; around Polavaram, within 6 miles, there are satellite villages with a population of 15000; no permission was given by MoEF&CC to Polavaram Project Authority for creating giant dump of hundreds of acres of land in Polavaram Panchayat; Polavaram Project Authority was dumping thousands tonnes of waste material in agricultural fields in Polavaram Revenue limits, without conducting any environmental or social impact study on the effect of dumping near habitations and in agricultural fields; EC granted to Polavaram/Indira Sagar MIP on 25.10.2005 was quashed by National Environmental Appellate Authority (hereinafter referred to as „NEAA‟) in 2007; matter then was taken in High Court and therefrom transferred to Supreme Court where it is pending; Gazette Notification No. 34 dated 28.04.2016, issued for land acquisition, mentioned purpose of acquisition as additional dump, initiated eleven years after obtaining EC; the said dump is not part of main DPR on the basis whereof EC was obtained; Project Authority/Contractors are dumping waste in very fertile land in which commercial crops such as Cotton, Mirchi and Tobacco used to be cultivated by applicant and other farmers, which land has been forcefully acquired by State Government for the purpose of dumping of waste material, though the land is situated within few meters from Polavaram town/habitation; no steps were taken towards rehabilitation, resettlement etc. and no plan to control pollution 70 due to dumping was prepared by PPs; after fourteen months, from the date of order, passed in OA 309/2015 (supra), a joint inspection was conducted by Polavaram Project Authority and APPCB on 14.10.2017 and they made following recommendations:

110. Applicant-OA IV further said that dumping of muck was in utter violation of the conditions of EC, which was quashed by NEAA in 2007 and matter is pending before Supreme Court. Reliance was placed, beside statutory provisions, on an order of Tribunal in OA 197/2016, Vimal Bhai vs. Tehri Hydro Development Corporation & Others, wherein, in para 18 of judgment, Tribunal issued following directions:

The said sum of Rs. 50 Lakh at the first instance would be paid by the Respondent no.1. However, a sum of Rs. 20 Lakh shall be recovered from sub-contractors or agents operating on behalf of the Respondent no. 1 who were responsible for excavation and carriage/dumping of waste and have thrown the same into River Alaknanda. A sum of Rs. 20 Lakh shall be recovered within 4 weeks from the date of pronouncement of this judgement and compliance report should be submitted to the Tribunal.

4. We also issue notice to the Public Works Department of State of Uttarakhand to show cause as to why environmental compensation be not imposed upon them, on the basis of the disclosure made by Respondent no. 1 that they were dumping muck and construction waste into the water bodies/nallahs. Notice shall be made returnable by 28th April, 2017 for which registry will maintain a separate file.

5. Further, we direct Respondent no. 1, its contractors/subcontractors or agents to remove the entire dumped debris from River Alaknanda and restore the same to its original condition within 4 weeks from today. In the event of default, Respondent no. 1 shall be further liable to pay a sum of Rs. 25 Lakh, which shall be used by a committee appointed by the Tribunal at the relevant time for removal of the muck from the River and also for taking the protective measures.

6. We direct Respondent No. 1 as well as Respondents No. 2 and 3 to direct installation of efficient transportation monitoring system to ensure that such projects do not cause any pollution in River Alaknanda in the State of Uttarakhand.

7. All the concerned officers, authorities and State Government shall comply with this order without default and delay, and would 72 submit a compliance report before this Tribunal within six weeks from the date of pronouncement of this judgment."

(Emphasis added)

111. Applicant-OA IV also claimed that Polavaram Project Authority violated environmental laws, continuously committed crime and referred to a judgment of Tribunal in Forward Foundation, A Charitable Trust & Others. vs. State of Karnataka & Others. 2015 ALL (I) NGT Reporter (2) (Delhi) 81 to support his case that crime is continuing even when OA IV was filed, hence application is within limitation. Initial proceeding before Tribunal in OA IV

112. OA IV was taken up by Tribunal on 01.11.2018 and to have a factual report, it constituted four members Committee comprising (a) representative of CPC B; (b) Additional Principal Chief Conservator of Forest; (c) APPCB and (d) District Collector and Magistrate, West Godavari District, Andhra Pradesh.

113. The said Committee submitted report on 29.12.2018. It found several irregularities and violations in the management of muck. Report was taken up by Tribunal on 19.02.2019. Accepting report, Tribunal said that steps are necessary to be taken to remedy deficiencies noticed by Committee. It directed Polavaram Project Authority to take necessary steps and submit compliance report through nodal agency, i.e., APPCB.

114. Compliance report was submitted on 03.05.2019, wherefrom Tribunal found that several steps were yet to be taken. Consequently, time was further granted and further action taken report was required to be given by 31.07.2019. Next report dated 30.07.2019 was submitted by APPCB pointing out that though excavation work was stopped due to monsoon, but PPs failed to submit action taken report; no major 73 plantation activity was undertaken as required and other observations like additional land, not required, be returned; muck be utilized properly; dumping of muck be stopped and AAQM be implemented; protective measures taken on the sliding of embankments; measures required for dust separation, were still wanting. Tribunal also noticed the complaint of applicant-OA IV, brought before it, along with photographs, showing that large scale loss has taken place due to submergence on account of Coffer dam and flood effect was heavy. PPs were directed to take remedial action and furnish action taken report within one month. Chief Executive Officer, Indirasagar Polavaram Multi-purpose Project was directed to remain present on the next date.

115. Consequently, report was submitted by PPs on 24.10.2019. Tribunal found that report do not satisfy requirement of steps required to be taken. Besides, deficiencies noticed earlier and loss caused to the inhabitants on account of flooding still needed to be assessed and rehabilitation measures were to be taken and step, to the extent such measures as desired, were not taken. Tribunal directed existing four Members‟ Committee along with Divisional Commissioner of the area to make such assessment and take appropriate steps, apart from measures in terms of minutes of meeting of dam design review panel, held on 10.06.2019 and follow up of other deficiencies earlier pointed out in the reports.

116. Four Members‟ Committee then submitted report dated 29.01.2020 and also an action taken report was submitted by State of Andhra Pradesh. However, counsel for State of Andhra Pradesh stated before Tribunal on 30.01.2020, when matter was taken up that report needs be revised and further report will be filed. Noticing above statement, vide 74 order dated 20.02.2020, Tribunal granted two weeks‟ time and directed matter to be listed on 30.03.2020.

117. Thereafter, report dated 08.01.2021 was submitted on behalf of Committee on 23.02.2021 which was considered on 23.02.2021.

118. Based on the above report, Tribunal found it appropriate to have an Action Plan prepared by a Committee with relevant Experts, headed by a Former Judge. Consequently, it constituted a six Members Committee, headed by Justice B. Seshasayana Reddy, Former Judge of High Court of Andhra Pradesh and nominees of MoEF&CC, CPC B, Central Soil and Water Conservation Research Institute, Dehradun (hereinafter referred to as „CSWCRI, Dehradun‟), Indian Institute of Technology, Hyderabad (hereinafter referred to as „IIT, Hyderabad‟) and Indian Institute of Technology, Delhi (hereinafter referred to as „IIT, Delhi‟).

119. Tribunal directed six members Committee to visit site at least once, conduct public hearing, if necessary, and submit report on certain specified aspects relating to details of muck generation, disposal, etc. Orders passed by Tribunal (In OA I, II, III & IV including Review Application) - A brief retrospect:

120. OA I was filed and registered at NGT (Sothern Zone) at Chennai as OA No. 125/2017 (SZ) on 27.05.2017 and came up before the Bench on 31.05.2017. Respondents 2 and 3, represented through counsel, accepted notice and as prayed, were granted time to file response. On 19.07.2017, when matter was taken up, learned counsel appearing for respondents 2 and 3 stated that project in question has all requisite consent and EC, which fact was disputed by applicants. Since reply had 75 not been filed by respondents 2 and 3, again time was granted to file response. Tribunal, however passed an interim order directing that construction made will be subject to final decision of Tribunal.

121. Respondents 2 and 3, subsequently filed reply on 31.08.2017. Respondent 1 filed response on 06.10.2017.

122. MA 168/2017 was filed by applicant seeking an interim order alleging that despite order dated 19.07.2017, making further construction subject to final decision in OAs, due to construction activities, paddy fields were completely damaged and, therefore, an interim order is necessary. Counsel for respondents sought time to file objections which was allowed vide order dated 17.10.2017. On 06.11.2017, when MA 168/2017 came up before Tribunal, on behalf of State, learned Advocate General stated that the stand of State Government is that, though nomenclature of project is irrigation and drinking water, but, in fact, it is only a drinking water project. Reply was already filed on behalf of State, wherein above stand was taken, hence, applicants were permitted to file rejoinder.

123. MA 163/2018 and MA 174/2018 were filed before Tribunal on 16.02.2018. A Notification of MoEF&CC conferring jurisdiction of all Zonal Benches upon Principal Bench (PB) at New Delhi was brought to the notice of Tribunal at PB whereupon Tribunal at Principal Bench passed an order permitting applicants to move application before Registry for posting the matter to PB, and, if such an application is filed, Registry was directed to place OA 125/2017 (SZ) at PB on the date already fixed, i.e., 12.03.2018. MA 163/2018 was disposed of with the above directions.

124. Another MA 491/2018 was filed seeking intervention by a person who claimed to be interested in quoting the cause of action raised by applicant, whereon notice was issued on 10.04.2018. The application, however, was allowed to be withdrawn vide order dated 02.05.2018. On 17.04.2018, on the application of applicant, OA 125/2017(SZ) was transferred to PB and registered as OA 175/2018.

125. Ultimately, matter was taken up at PB on 21.01.2019. Tribunal noticed basic complaint of applicants that Purushothapatnam LIS, commenced by State of Andhra Pradesh, undertaking construction activities, was without EC from Competent Authority under EIA, 2006. As per applicants, diversion of water from river Godavari to river Yeluru would damage environment, including destruction of fertile land. Since Construction activities had commenced on 30.01.2017, injunction was sought against the said activities. Tribunal also noticed that though reply was filed on behalf of MoEF&CC, it does not assist Tribunal on the issue whether EC is required or not, though MoEF&CC ought to have taken a clear stand on the issue. Even, learned counsel appearing on behalf of the MoEF&CC could not render any effective assistance on this aspect. Tribunal expressed displeasure in the order dated 21.01.2019.

126. Further, stand of State of Andhra Pradesh was that Purushothapatnam LIS is not an irrigation project; it does not envisage construction of any dam, barrage, canal, etc., though project would provide water for agriculture purposes, to the land, which was covered by Polavaram Irrigation Project, hence no EC was required under EIA 2006.

127. Consequently, Tribunal passed order directing MoEF&CC to take a decision in the matter, "whether EC was required for Purushothapatnam LIS or not", and, "whether project was 77 commissioned by PPs in violation of Section 5 of EP Act, 1986". Tribunal also said, if execution of project is found in violation of Section 5 of EP Act, 1986, MoEF&CC would take appropriate action in accordance with law and submit action taken report before the next date. OA was disposed of with above directions and 10.04.2019 was fixed for consideration of report. Operative part of order dated 21.01.2019, contained in para 8, is as under:

128. On 10.04.2019, Tribunal found that no such compliance report was filed by MoEF&CC. It was also brought to the notice of Tribunal that similar matter in OA 350/2018 (i.e., OA II) was also pending. Further, pursuant to order passed in another OA 178/2018, report of MoEF&CC on similar issue was awaited. Tribunal expressed displeasure on the manner in which MoEF&CC has shown inaction and lack of response and directed that concerned Officer In-charge, who is looking after the subject of EC, with requisite details shall appear before Tribunal and also report "whether EC was required or not for river valley and irrigation projects", and "if required, whether State Government has proceeded without EC and if that is so, what action was proposed by MoEF&CC for loss caused to the environment" and "whether any action was taken for such violation". The matter was posted for 15.07.2019 for consideration of report.

129. On 15.07.2019, Dr. S. Kerketta, Director (IA) (River Valley and Thermal Sectors), MoEF&CC, appeared. Tribunal noticed the stand taken by MoEF&CC and also by State of Andhra Pradesh, in the replies filed earlier, wherein clear stand of MoEF&CC was that no proposal for Purushothapatnam LIS was received from State Government for consideration under EIA 2006. MoWR,RD&GR, as Financer of the project, stated in most categorical terms that Purushothapatnam LIS is not covered, in any manner, with Polavaram/Indira Sagar MIP. According to MoWR,RD&GR, cost of Purushothapatnam LIS was not included in DPR of Polavaram/Indira Sagar MIP. Purushothapatnam LIS was never accepted by Advisory Committee of MoWR,RD&GR as an irrigation, flood control and multi-purpose project. In substance, Tribunal noticed in para 5 of order dated 15.07.2019 that as per stand taken by MoWR, RD&GR, Purushothapatnam LIS was not a part of Polavaram/Indira Sagar MIP as evident from para 4 of the affidavit.

130. Dr. S. Kerketta, Director who appeared before Tribunal, however took a different stand, though had not filed any written affidavit or reply. He said that Purushothapatnam LIS is an expansion of Polavaram/Indira Sagar MIP. He reiterated and supported the stand taken by State of Andhra Pradesh that object of Purushothapatnam LIS was to carry excess water, during monsoon, from river Godavari to the LMC. Tribunal observed that if Purushothapatnam LIS is considered to be part of Polavaram/Indira Sagar MIP, it is not supported by DPR prepared in 2016 for Purushothapatnam LIS which clearly reflects that it was a distinct project. Having noticed this, Tribunal in paras 9 to 13 of order dated 15.07.2019, said as under:

(Emphasis added)

131. On 15.07.2019, OA 175/2018 was listed before Tribunal along with OA 350/2018, wherein similar issues are involved. MoEF&CC filed additional affidavit on 27.01.2020 and thereafter, OA I along with OA II were placed before Tribunal to consider affidavit of MoEF&CC. In its additional affidavit, MoEF&CC has stated that a show cause notice under Section 5 of EP Act, 1986 was issued to State of Andhra Pradesh for non- compliance of requirement of EC and to stop all activities relating to Purushothapatnam LIS. Further, MoEF&CC sought comments from CWC 80 who gave comments that Purushothapatnam LIS was not part of Polavaram/Indira Sagar MIP and was never cleared/accepted by it. Observing that since EC was necessary, Purushothapatnam LIS commenced, without EC, was in violation of EIA 2006, read with provisions of EP Act, 1986 , Tribunal noticed that Purushothapatnam LIS was using infrastructure of Polavaram/Indira Sagar MIP but even no amendment in EC was sought or granted for Polavaram/Indira Sagar MIP and "whether even such action was permissible in law or not", needs be examined. For this purpose, Tribunal constituted a Committee comprising of EAC of MoEF&CC on irrigation projects, CPC B and IIT, Roorkee. Committee was also required to consider social aspects, apart from environmental aspects and submit report. The relevant extract of order dated 20.02.2020, contained in paras 4 and 5, is as under:

As per Section 90 of Andhra Pradesh Reorganization Act, 2013, Polavaram Irrigation Project (PIP) was declared as National project. While appraising the 2nd Revised Cost Estimate of PIP, Purushothapatnam Lift Irrigation Scheme was not appraised as part of PIP and Government of India is not reimbursing the expenditure incurred by the State Government of this project".

5. In view of the above, since the Purushothapatnam Lift Irrigation Scheme is using the infrastructure of Polavaram Project Scheme, without seeking amendment 81 of the EC granted for the said project, such activities are not permissible without appropriate amendment to the EC, granted for Polavaram Project Scheme or taking independent EC, as may be found necessary. To determine whether independent EC is required or amendment of existing EC is to be taken or what is permissible course or action, we direct constitution of a Committee comprising EAC of MoEF&CC on irrigation projects, CPC B and IIT Roorkee. The CPC B will be the nodal agency for coordination and compliance. The committee may hold its first meeting within two weeks and give its report within one month thereafter at [email protected] . The committee may also consider social aspects, apart from environmental aspects.

A copy of this order be sent to the MoEF&CC, CPC B and the IIT Roorkee by email.

List for further consideration on 04.05.2020."

132. Pursuant to above order, report dated 28.04.2020 was filed by CPC B. This report was considered by Tribunal on 09.09.2020, when OA I & OA II both were listed. Tribunal found that in the report, stand taken earlier by MoEF&CC with regard to the fact that Purushothapatnam LIS is separate project and required EC under EIA 2006 was reiterated. On behalf of State of Andhra Pradesh, a request for adjournment was made, which was not accepted and Tribunal said:

133. In view of above violation, for determination of extent of damage already caused and the amount of compensation, Tribunal constituted another Committee. Relevant extract of order dated 09.09.2020, contained in para 6, is as under:

134. Thereafter, Joint Committee submitted two reports dated 08.04.2021 and 19.07.2021 to which objection has also been filed by applicants.

135. We have heard the matter finally on 09.08.2021. These reports and objection filed shall be considered in this order. OA-II (OA No. 350/2018)

136. OA II was filed before this bench on 23.05.2018 and registered on 25.05.2018. It came up for hearing on admission on 28.05.2018 when notices were issued to all the respondents. It was appended with MA 830/2018 on which also notices were issued. When it came up before Tribunal on 31.07.2018, respondents 1 to 7 and 9 to 11 put in appearance through Counsels. Since, respondent 8 was not represented, fresh notice was issued, and directed to be served through Resident Commissioner, State of Odisha at New Delhi. All the parties represented before Tribunal on 16.08.2018. Since none had filed their reply, they were allowed to file reply, by giving further time.

137. On 25.01.2019, when OA II was placed before Tribunal, it was brought to its notice that OA 125/2017 (SZ), Shri Jammula Choudharaiah & Another vs. Union of India & Others, registered as OA 175/2018 (i.e., OA I), on transfer to PB, involving similar issues, was disposed of vide order dated 21.01.2019 and a compliance report was sought on 10.04.2019. Since, parties admitted that the matter in OA II was squarely covered by order passed in OA I and the said order would be applicable to OA II also, it was disposed of and directed to be taken 83 along with OA I for consideration of report on 10.04.2019. MA 830/2018 was disposed of since nothing survived to be considered therein in view of order passed in OA II.

138. Thereafter OA I and OA II, both were listed together and combined orders passed have already been dealt with, in OA I, hence, not repeating those orders which cover OA II also.

OA III (OA No. 48/2018)

139. OA III was filed at PB on 20.12.2018, registered on 07.01.2019 and came up before Bench on 08.01.2019. Tribunal noticed the grievance of applicant seeking directions to conduct studies on Lift Irrigation Schemes in State of Andhra Pradesh. It was also noticed that applicant had also approached High Court of Hyderabad, where matter is pending. On 13.06.2018, State of Andhra Pradesh initiated KGPR Linking project. Applicant claimed that Lift Irrigation Schemes required clearance of Central Water Commission and MoEF&CC, since, subject falls under Entry 1(c) of the Schedule of EIA, 2006 read with Section 3(2) of EP Act, 1986. Observing that applicant has not made clear whether it had approached MoEF&CC or State PCB in the matter, Tribunal permitted applicant to approach the said authorities and they were directed to submit factual report in the matter.

140. IA 115/2019 and IA 345/2019 were filed by applicant seeking interim stay/execution of the project and for directions. These IAs were considered by Tribunal on 30.05.2019. Tribunal found that pursuant to order dated 08.01.2019, APPCB has filed its affidavit taking stand that the projects require EC under EIA 2006 covered by Entry 1(c) of the Schedule. On behalf of MoEF&CC, no report was filed but a letter was placed before Tribunal wherein it was stated that MoEF&CC has sought 84 details of Irrigation Schemes from its Regional Office. Tribunal observed that since neither EC nor Consent to Establish were obtained, hence projects cannot be allowed till requisite environmental clearances are met. Further, State PCB acknowledged illegality in execution of projects in view of absence of Consent to Establish and EC, yet it failed to perform its duties by not taking appropriate action as per law. Consequently, Tribunal issued directions, vide order dated 30.05.2019 and relevant extract contained in paras 4 to 7, is as under:

141. Pursuant to order dated 30.05.2019, a report dated 28.06.2019 was submitted wherein all four projects in question were examined. The facts, with regard to different projects, are noticed in paras 5 and 6 of order dated 13.08.2019 when the report was considered. Tribunal noticed that issue with regard to Purushothapatnam LIS, was also involved in OA I & II wherein compliance reports were pending for consideration. Consequently, Committee‟s recommendations dated 28.06.2019 were accepted and OA III was disposed of vide order dated 13.08.2019 in terms of recommendations of Committee. Relevant paras 4 to 8 of order dated 13.08.2019, read as under:

7. We may also note that this Tribunal is also dealing with the Purushothapatnam Lift Irrigation Scheme in O.A. No. 175 of 86 2018 and O.A. No. 350 of 2018 with reference to the question whether EC is required for the said purpose. Therein, vide order dated 15.07.2019, it was observed that while Drinking Water Scheme may not require Environment Clearance, Irrigation Project requires such clearance. The project was Irrigation project requiring EC. The matter is still pending final orders.

8. Recommendation of joint Committee has to be accepted.

Andhra Pradesh State PCB is part of the Expert Committee. MoEF&CC representative is also in the Committee. The opinion is based on correct interpretation of EIA notification which governs the field. There is no reason not to accept the same. Accordingly, we dispose of this application in terms of the recommendation of the joint Committee." RA No. 46/2019 in OA-III

142. Applicant filed Review Application No. 46/2019 (hereinafter referred to as „RA‟) seeking review of order dated 13.08.2019. He pointed out that he has raised objections to the report dated 28.06.2019, submitted by CPC B, on behalf of MoEF&CC, and 08.08.2019 submitted by APPCB, raising various issues, in brief, as under:

143. Review applicant said, these objections were not considered by Tribunal when order dated 13.08.2019 was passed disposing of OA III, hence there has occurred:

144. In para 5 of Review Application, it was stated that Tribunal had observed that Pattiseema LIS was given clearance by MoEF&CC though no such clearance was granted to the said Scheme and this is a clear error of fact noticed in the order which justify review of the order. It was also pointed out that Union of India through MoWR has taken consistent stand that Pattiseema LIS and Purushothapatnam LIS were not part of Polavaram/Indira Sagar MIP, various Lift Irrigation Schemes were initiated by State of Andhra Pradesh without complying with the environmental laws, and estimated cost of such Schemes was about Rs. 95,000 Crores.

145. RA 46/2019 was received in Registry on 26.08.2019. It was directed to be placed before Members through circulation as per rules on 02.09.2019. On 03.09.2019, Tribunal passed following order, in chamber, by circulation:

146. It was heard on merits on 06.09.2019. Noticing apparent and glaring errors in order disposing OA III, Tribunal took the view that matter required to be heard on merits again, hence, issued notices to State of Andhra Pradesh, MoWR,RD&GR and MoEF&CC.

147. On 20.02.2020, when RA came up before Tribunal, it was found that similar matter in OA I was under consideration at the stage of compliance report, hence RA was directed to be listed along with OA I.

148. On 09.09.2020, RA was considered and Tribunal found that an order was already passed on the same day in OA I. Hence Tribunal ordered that Committee constituted by the said order may determine amount of compensation and furnish report in the present matter also. Order dated 09.09.2020 reads as under:

149. Thereafter, reports have been filed by Committee and entire matter was heard on 09.08.2021.

OA-IV (OA No. 857/2018)

150. OA IV was filed in Registry on 29.10.2018 and registered on 31.10.2018. It was placed before Bench on 01.11.2018. Noticing grievance of applicant about "unscientific dumping of muck" during construction of Polavaram/Indira Sagar MIP, damaging environment of the area and also orders passed by Tribunal on 12.08.2015 in OA 309/2018, Dr. P. Pullarao vs. Union of India & Ors. and dated 29.08.2017 in OA 66/2017, Dr. Pentapati Pullarao v. Union of India & Ors. , a four members Committee was constituted to submit factual report. Committee comprised of a representative of CPC B, Additional Principal Chief Conservator of Forests, APPCB and District Collector, West Godavari District. Tribunal also observed that copy of the report shall be sent to respondent 4 (Polavaram Project Authority) for compliance and respondent 4 may file objections to report, if any, before Tribunal.

151. Pursuant to order dated 01.11.2018, Committee submitted report dated 29.12.2018 which was considered on 19.02.2019. The observations made by Committee show large scale irregularities and illegalities on the part of PPs, causing damage to environment. Noticing observations of Committee, vide order dated 19.02.2019, Tribunal directed PPs, i.e., Polavaram Project Authority, to take necessary steps for remedying deficiencies and submit compliance report to Joint Committee through Nodal Agency, APPCB.

152. On 10.05.2019, when Tribunal took up the matter, noticed that further action taken report was submitted by APPCB on 03.05.2019 90 wherein a tabular chart of deficiencies found, action taken by PPs and remarks of Committee, was given. Several deficiencies were still continuing and steps were still required to be taken. Tribunal extended time upto 30.06.2019 to remove deficiencies and directed PPs to submit further action taken report through Joint Committee.

153. Report dated 30.07.2019 was filed. It again said that several deficiencies and illegalities still continue resulting in damage and loss to environment. Tribunal directed PPs, (Polavaram Project Authority) to take remedial action and file action taken report. Relevant extract of order dated 27.09.2019, contained in paras 4 and 5, is as under:

154. Action taken report pursuant to order dated 27.09.2019 was submitted by PPs on 24.10.2019. Tribunal found that steps taken were not satisfactory and apart from the deficiencies already noticed, loss caused to the inhabitants on account of flooding needs be assessed, rehabilitation measures to be taken but no such measures have been taken. The joint Committee along with Divisional Commissioner of the area was directed to make an assessment and based on such assessment, PPs were directed to take further steps. Relevant extracts of order dated 07.11.2019, contained in paras 3 to 6, is as under: 91

155. Joint Committee submitted report dated 29.01.2020 which was considered on 20.02.2020. A statement was made on behalf of State of Andhra Pradesh that report needs be revised and further report will be filed hence matter was adjourned.

156. Further report dated 08.01.2021 was submitted by Joint Committee on 23.02.2021. It was considered by Tribunal on 23.02.2021. After noticing observations and recommendations made in the report, and considering submission of the parties, Tribunal passed order on 23.2.2021 constituting a six Member Committee headed by Justice B. Seshasayana Reddy (former Judge of the High Court of Andhra Pradesh) to submit report on broad points formulated in para 11 of the order. Relevant extract of order dated 23.02.2021, contained in paras 8 to 13, is under:

List for further consideration on 09.08.2021.

A copy of this order be forwarded to the Members of the Expert Committee, the CPC B and the State PCB by e-mail for compliance." 93

157. Thereafter, report dated 01.04.2021 was submitted by the said Committee. The above matter was also heard on 09.08.2021 along with other connected matters.

Consideration of Review Application 46/2019 on merits:

158. After hearing Learned Counsels and perusal of record, we find, that apparently, order dated 13.08.2019 contains certain facts regarding EC in the context of Pattiseema LIS while it could not be disputed by learned counsel for the State of Andhra Pradesh and also MoEF&CC that no such EC was issued/granted to the said Scheme. Further, record also show that there were large scale violations of environmental laws and objections were also filed by Review Applicant to the report submitted by Committee, but the objections were not considered. Committee‟s report was accepted by Tribunal without considering said objections. In view thereof there is error apparent on the face of record, justifying review of order dated 13.08.2019.

159. Hence, we allow Review Application and recall order dated 13.08.2019. OA 48/2019 stands revived. Since arguments have been advanced on merits in all matters including OA IV, it is being considered and decided on merits in this very judgment. We reiterate that parties have made submissions on merits and on behalf of the respondents it has not been objected that OA IV itself, be considered on merits. Various Reports of Committees: A brief resume A. Report dated 26.12.2018 in OA IV

160. In OA IV, vide order dated 01.11.2018, a four Members‟ Committee was constituted comprising of representatives of CPC B, Additional Principal Chief Conservator of Forests, APSPCB and District Collector/Magistrate, West Godavari. The said Committee was required to report on factual aspects, in the backdrop of the allegation of 94 applicant, in OA IV, that illegal dumping of muck had taken place during construction of Polavaram/Indira Sagar MIP damaging environment of the area. Consequently, Committee submitted report vide letter dated 26.12.2018. Report has been submitted by the Committee, comprising of:

Similarly, water spraying may be arranged for wetting the 95 approach roads/village roads etc. at the project areas and nearby villages."

B. Report dated 29.04.2019 in OA IV

162. Pursuant to order dated 01.11.2018 passed in OA IV, report dated 26.12.2018 was submitted and the observations therein were considered on 19.12.2019. Tribunal directed PPs (Polavaram Project Authority) to take necessary steps to remediate deficiencies mentioned in the report dated 26.12.2018 and submit compliance report to Committee constituted by order dated 01.11.2018 through nodal agency APSPCB. Consequently, a report dated 29.04.2019 was submitted. The said report shows that Polavaram Project Authority submitted action taken report dated 06.03.2019 and 11.03.2019 in purported compliance of the observations made by Committee in its report dated 26.12.2018.

163. Committee verified the claim set up by Polavaram Project Authority vide report dated 11.03.2019 and also updated steps as on 25.04.2019, and recorded its observations as under:

C. Report dated 24.05.2019 in OA III

165. Vide order dated 08.01.2019, passed in OA III, Tribunal sought a factual report from joint Committee comprising MoEF&CC and APPCB on the issue of requirement of EC, NOC from MoEF&CC and CGWA for Pattiseema LIS, Purushothapatnam LIS, Chintalapudi LIS and KGPR Linking Project, under EIA, 2006. Consequently, report dated 24.05.2019 was submitted by APPCB stating that question, "whether aforesaid projects required any EC or not", can be decided by MoEF&CC, since APPCB is not a Competent Authority to take decision on the said issue. D. Report dated 28.06.2019 in OA III

166. Tribunal, vide order dated 30.05.2019 passed in OA III, considered reply of APPCB in the report dated 24.05.2019 and directed to constitute another Committee comprising Regional Officer of MoEF&CC at Chennai, CPC B and APPCB to furnish factual report about requirement of EC by various Lift Irrigation Schemes. Consequently, a report dated 28.06.2019 was submitted by Committee, comprising Dr. M. Madhusudanan, Additional Director, CPC B, RDS, Bengaluru, Sri. B. Siva Prasad, Joint Chief Environmental Engineer, APPCB, Vijayawada, Dr. C Palpandi, Scientist C, MoEF&CC, Chennai and Smt. Sowmya D, Scientist D, CPC B, RDS, Bengaluru. Committee examined four projects namely, Pattiseema LIS, Purushothapatnam LIS, Chintalapudi LIS and Godavari-Penna River Linking Project and recorded observations, which, in brief, are as under:

167. This project was conceived for lifting of 80 TMC water from River Godavari to River Krishna. It commenced on 30.03.2015 and completed on 28.03.2016. For this project, 168 acres (plain land) was acquired and estimated cost of project was Rs. 1677.15 Crores. No EC for the project obtained and instead, authorities relied on EC obtained on 103 25.10.2005, and Forest Clearance obtained on 28.07.2010 for Polavaram/Indira Sagar MIP. The reason for execution of Pattiseema LIS was that completion of reservoir of Polavaram/Indira Sagar MIP was to take long time but, in the meantime, construction of RMC of Polavaram/Indira Sagar MIP was complete. Hence to achieve, early benefits of Polavaram/Indira Sagar MIP by utilizing its infrastructure, i.e., RMC, Pattiseema Lift Scheme was conceived. It was to be constructed at 6-7 kms downstream of Polavaram Reservoir, to divert 80 TMC flood water from River Godavari to River Krishna. As per authorities executing Pattiseema LIS, water from River Godavari was lifted and pumped to RMC of Polavaram/Indira Sagar MIP, only during flood period. After completion of Polavaram/Indira Sagar MIP, water from this project head works will flow under gravity and Pattiseema LIS would not, thereafter, be necessary. Hence all equipments of the said scheme will be reused in some other scheme. The land was acquired for use of construction of pump houses and pressure main of 3.9 kms, connecting Godavari River at Polavaram to Polavaram/Indira Sagar MIP‟s RMC. Committee observed that the aforesaid project was independent and separate. However, Committee did not give any express opinion with regard to requirement of EC for Pattiseema LIS.

II. Purushothapatnam LIS:

Here also, reason for execution of scheme was similar as that was for Pattiseema LIS. Land acquired was used for construction of pump houses and Pressure mains connecting Godavari River at Purushothapatnam village to Polavaram/Indira Sagar MIP‟s LMC. III. Chintalapudi LIS:

Location of project was 17 km, downstream of Polavaram/Indira Sagar MIP, on left bank of River Godavari. 4575 hectares of land was acquired and estimated cost was Rs. 4908.80 Crores. It was an independent project intended to create a new ayacut of 80939 hectares and stabilization of 113314 hectares. It had no link with KGPR linking project. State of Andhra Pradesh submitted proposal for EC to MoEF&CC in 2015 which was considered by EAC of MoEF&CC in meetings held on 24.08.2015 and 27.03.2018. However, for stage I and II of the Project, clearance for 347.64 hectares of forest diversion was granted by MoEF&CC vide order dated 28.11.2018. Since 3132 hectares of total forest land was involved, for remaining forest area, PPs were in the process of obtaining clearance. Construction of canal works and pump houses were in progress in the area when Stage I and II Forest Clearance was issued though admittedly no EC was issued by MoEF&CC. IV. KGPR Linking Project:

E. Report dated 30.07.2019 in OA IV

171. By order dated 10.05.2019 passed in OA IV, Tribunal after considering report dated 29.04.2019 (received by Tribunal on 03.05.2019 by e-mail) observed that since Committee has found several steps yet to be taken, hence further action taken report shall be submitted. Consequently, a comparative report dated 30.07.2019 (received by mail on 01.08.2019) was submitted, stating as under:

F. Report dated 24.10.2019 in OA IV

173. Pursuant to Tribunal‟s order dated 27.09.2019 in OA IV, above report was submitted by Polavaram Project Authority, Ministry of Jal Shakti, Government of India, signed by Shri P. Devender Rao, Director (A&C). It is stated that Polavaram/Indira Sagar MIP was declared a "National Project" vide Section 19 (1) of APR Act, 2014. Pursuant to Section 19 (4) and to carry out the purposes of the provisions of APR Act, 2014, Government of India constituted "Polavaram Project Authority"

174. In para 2 of O.M. dated 30.09.2016, it is said that in order to arrive at the quantum of Central assistance, which Central Government will be required to provide, cost of irrigation component of the project as on 01.04.2014, may be appraised. Further Modalities, in respect of decision at serial no. (ii), may be worked out for execution of project. It is also said that necessary approvals, wherever required, may be obtained at appropriate level. Consequently, and in view of the above, Water Resource Department, State of Andhra Pradesh would execute Polavaram/Indira Sagar MIP. The said Department would also look after contract management. Matters relating to construction, in execution of Polavaram/Indira Sagar MIP, would also be within the purview of Water Resource Department, State of Andhra Pradesh. With regard to construction of Coffer dams, report dated 24.10.2019 said:

175. Aforesaid report also compared recommendations/observations made by four Members Committee in report dated 30.07.2019 as on 24.07.2019 as under:

177. Report dated 24.10.2019 has a further addition of some report given by Superintending Engineer, PIPHW Circle, Dowlaiswaram, which is a note dated 17.10.2019, (on page 415 of paper book of OA IV), and reads as under:

G. Report dated 26.10.2019 in OA IV submitted by PPs

178. Tribunal, after considering action taken report dated 30.07.2019 submitted by APPCB on behalf of Committee, said in order dated 27.9.2919 (in OA IV), that PPs have failed to submit action taken report and requisite remedial measures were also not taken. Tribunal then, directed PPs to take remedial action and submit action taken report. CEO of Polavaram/Indira Sagar MIP was also directed to remain present on the next date, i.e., 07.11.2019.

179. Pursuant thereto, report dated 26.10.2019 was submitted by Shri B. Sudhakar Babu, Chief Engineer, PIPHW Unit, Polavaram on behalf of Government of Andhra Pradesh (Department of Water Resources). Report, in paras 2, 3, 8, 14 to 18 and 21, reads as under:

180. Tribunal, vide order dated 07.11.2019, after considering Committee‟s action taken report dated 24.10.2019, observed that the said report does not satisfy requirement of the steps which ought to have been taken. Tribunal found that apart from the deficiencies already noticed, loss caused to the inhabitants on account of flooding needs be assessed and rehabilitation measures be taken, to the extent, such measures have not been taken so far. Consequently, Tribunal directed four Members Committee, along with Divisional Commissioner of the area, to make an assessment. Based on such assessment, PPs were directed to take steps for compliance, apart from measures in terms of minutes of meeting of dam design review panel held on 10.06.2019 and follow up other deficiencies, earlier pointed out in the report. H. Report dated 29.01.2020 in OA IV

181. Pursuant to order dated 07.11.2019, report dated 29.01.2020 was submitted by four Members Committee, through Senior Environment Engineer, APPCB.

182. Considering present status of project, report has said that construction was started in 2005-2006; progress of work of Polavaram Head Works is 58.50%; LMC is 69.69% and RMC is 91.69%. The overall progress was 67.09%. Further, excavation work, as reported, was complete up to 86.65%. As per construction schedule, concrete in spillway including construction of bridge, concrete in spill channel and construction of coffer dams should have completed by May 2019 but was lagging behind. Similarly, main earth cum rock fill dam, scheduled to be 119 completed by end of 2019, had delayed and likely to be completed by March 2021. In the meantime, however, entire work orders were terminated and fresh tenders were invited by State Government vide notice dated 17.08.2019; a new contractor was identified and work was assigned vide agreement dated 08.11.2019. Committee made joint inspection on 22.01.2020, and recorded its observations, in the form of a chart, as under:

Monitoring Envi Tech Pvt Ltd have already been The study Programme for June 2019 for submitted and the reports of and submit monitoring AAQM latest reports are May, June & reports to at 5 placed also submitted to July have MOEF&CC/ including BC APPCB and already been APPCB. Colony. Polavaram Project submitted and Photographs and Authority on dt. the latest analysis reports 21.01.2020. reports are enclosed (Copy also submitted enclosed as The GoAP have to APPCB and Annexure-C). accorded Polavaram The Committee administrative Project examined the sanction vide Authority on reports G.O.RT. No. 35, dt. dt.21.01.2020.

183. Committee has also considered other issues and recorded its observations as under:

 The issue of flooding needs and Re-habilitation measures taken were discussed with PIP and the District Collector, West Godavari. The District Collector has provided an exhaustive report on Re-habilitatory measures about Godavari floods in August, 2019 in Polavaram, Kukunurru, Velairpadu mandals of West Godavari District. The reports includes the measures taken on (i) medical camps, (ii) Launches & Boats deployed, (iii Generators Deployed, (iv) Teams deployed (v) Distribution of Vegetables, (vi) Distribution of Essential Commodities, (vii) Distribution of Tarpaulins, (viii) Distribution of Kerosine Oil, (ix) Supply of drinking water, (x) Special relief Amount, (xi) Relief Camps and (xii) Total incurred amount. Comprehensive report is (Annexure-7). Further the Committee discussed with the PIP officials on technical measures taken on the containing the flood situations. The PIP has submitted the detailed plan of LA&RR of Polavaram irrigation Project at +45.72 contour and LA&RR upto +41.15 mts contour and details of R&R status contour wise as phase-1 and Phase-2. Further, the PIP has informed that the coffer dam height was maintained much lower levels upto +35 mts. contour and provided necessary documents as proof to the committee placed as (Annexure-8). The PIP has provided the discharge details in cusecs date wise from 27.07.2019 to 10.10.2019 depleting the level of the water at upstream coffer dam level. The detail is provided as (Annexure-9). Committee stressed the point that the project Authority should take all necessary measures and strengthening work related to dam safety and completion and LA&RR before next monsoon. An overview map of the project is provided as (Annexure-10). The Committee also discussed in detail about the minutes of the DDRP meeting held on 10.06.2019. The PIP officials provided detailed measures taken item wise, which is annexed (Annexure-11). It 130 is observed that the PIP is following the decisions of the DDRP meeting.

 The Committee observed that the clarifications sought on the issues of the declaration of eco sensitive zone i.e., Papikonda National Park are yet to be clarified. The Committee directed the representative of the Forest Department attended the meeting to get clarified from Government of India, MoEF&CC, Wild Life Division, New Delhi as directed in the Joint reported dated 24.07.2019. However, the representative informed that a communication has been sent on 17.12.2019 (Annexure-12) to the Principal Chief Conservator of Forests, Hyderabad to review the issue of notification of eco sensitive zone for Papikonda Eco Sensitive Zone.

 The issues related to the poor maintenance of the diversion roads within the project area and outside were discussed with the PIP. The PIP has submitted the ancillary works estimation including diversion roads proposals to the Committee annexed as (Annexure-13). The Committee has stressed the need of the periodic maintenance of the arterial roads so that only minimum disturbance is caused to the common people residing at the project area.

 The issue of Environmental Clearance (EC) related to additional land acquired by the project as per the provisions of the Right to Fair Compensation and Transparency in land Acquisition and Re-habilitation & Re-settlement Act, 2013 was also discussed. The Committee again stressed that the PIP shall provide necessary documents showing that the additional land acquired is part of the project area.  The Superintending Engineer who took charge as Project Authority has informed that necessary documents shall be provided to the Committee on priority. The PIP informed to the Committee that an additional affidavit shall also be filed directly to the Hon‟ble NGT by the PIP including the progress made on ATR before next date of hearing.

The Committee is of the opinion that the project progress including ATR and other issues discussed in the Joint report shall be reviewed by Chief Executive Officer of Polavaram Project Authority and report the progress every quarter point wise to the Government of India, Ministry of Jal Shakthi and to the Government of Andhra Pradesh for compliance."

I. Report dated 18.02.2020 in OA IV

184. An action taken report has been submitted by State of Andhra Pradesh in the form of an affidavit, vide letter dated 18.02.2020, on the action taken by Water Resource Department on 18.02.2020. It has given a comparation chart, as under:

Programme and submit (Annexure No.5) regularly for one reports to MOEF & year. As per the work order, CC/APPCB. CSIR-NEERI scientists team came to the site and have been conducting the AAQ tests at five locations.(Photographs are enclosed as Annexure-6).The reports will be submitted to APPCB and MoEF regularly as directed by the Committee, soon after receiving from CSIR-NEERI.

134 7 Strengthening of dump As submitted to the Committee, sites with proper heights Government of Andhra Pradesh and slopes along with have accorded administrative vegetative cover may be sanction vide G.O.RT.No.35 planned immediately in dt.21.01.2020 for Rs. 306.5 consultation with Lakhs for "Raising of plantation technical experts. and 3 year maintenance at Mulalanka dump yard". The Chief Engineer, PIPHW accorded Technical sanction to the estimate vide Proceeding No. CE/PIPHW/DCE/OT-1/AEE-

2/126SE Dated 21.01.2020. The Superintending Engineer, PIPHW Circle, Dowlaiswaram has addressed the Principal Chief conservator of Forests (HOFF), Andhra Pradesh, to issue necessary orders to the concerned Divisional Forest Officer DFO) to take up the plantation at Mulalanka dump yard, Polavaram. (Details enclosed as Annexure-4). The entire process entrustment of work will be completed by March, 2020. Soon after finalization, plantation Work will be started immediately.

8 The Committee has verified The dewatering in spill channel the restoration of roads is still going on and will be after development of completed by the end of cracks as reported in the February, 2020. I.I.T, Delhi and project approach road CSMRS, Delhi were addressed to during the last monsoon inspect the site after Completion season. The report of dewatering and to furnish obtained from Central suitable option for arresting Design Organization, slipping of banks.

Vijayawada, AP is annexed as Annexure- „D‟. Necessary protective measures will be taken up as per their suggestions.

9 Adequate dust suppression Five water tankers have been measures like providing engaged continuously for water spraying may be spraying water on the approach arranged till good roads to suppress the dust.

vegetative Cover attained.

Similarly, water spraying After resumption of Earth work, may be arranged for more tankers will be put to use to wetting the approach suppress the dust as per "roads/village roads etc. at requirement and as Suggested the project areas and by the committee.

nearby villages." "

J. Report dated 28.04.2020 in OA I and II

185. In OA I and II, vide order dated 20.02.2020, Tribunal constituted a Committee comprising EAC of MoEF&CC on irrigation projects, CPC B 135 and IIT Roorkee. Committee was directed to submit report on the issue whether independent EC is required or amendment of existing EC is to be taken or what is permissible course or action.

186. Report dated 28.04.2020 was submitted by Committee comprising following:

187. The Committee, after examining the issue, as directed by Tribunal, opined that for implementation of Purushothapatnam LIS, EC granted to Polavaram/Indira Sagar MIP cannot be relied and Purushothapatnam LIS needed EC under EIA 2006. Further, LMC of Polavaram /Indira Sagar MIP is supposed to receive water from Polavaram Reservoir but under Purushothapatnam LIS, water would be transported through LMC to Yeluru Reservoir for which NOC had to be obtained from Polavaram Project Authority. Committee further said:

188. Committee also suggested, since after issue of show cause notice by MoEF & CC, Purushothapatnam LIS for lifting water was stopped from River Godavari, the said Stop Work Order should continue till all statutory clearances are obtained.

K. Report dated 06.01.2021 in OA IV

189. Tribunal, in its order dated 18.09.2020 in OA IV, considered report dated 30.07.2019 but deferred matter to 07.11.2019 since no status report was submitted by APPCB or any other authority. Tribunal directed it to be submitted before next date. Consequently, a further action taken report/affidavit was filed on 08.01.2021 by State of Andhra Pradesh. It annexed a chart showing action taken by Water Resource Department, as on 02.01.2021, as under:

 In the villages and residential colonies surrounding the Polavaram project, it is observed that the daytime noise levels vary between 50.2-52.9 dB(A), 50.1-54.5 dB(A) & 51.6-53.8 dB(A) and night time noise levels vary between 43.1-45.0 dB(A), 42.8-44.8 dB(A) & 40.8-44.0 dB(A) during February, March and November 2020, respectively. The noise levels are observed to be within the CPC B standards for residential areas.

 The groundwater quality at most of the sampling locations for various parameters was well within the permissible limit of BIS except for TDS, calcium hardness, nitrate, Iron and Manganese Concentrations at some locations in groundwater were observed to be more than permissible limit of the BIS which may be attributed to the dominant Rocks.

 The river water quality showed values within the range. Phytoplankton and zooplankton showed significant diversity in the study area.

16. It is most respectfully submitted that as per the reports on Assessment of Ambient Air Quality at Polavaram submitted by CSIR- NEERI (National Environmental Engineering Research Institute), Hyderabad results of all the parameters are within the National Ambient Air Quality Standards-2009.

17. The Water Resources Department, Government of Andhra Pradesh is fully committed to ensuring all required compliances towards mitigating and eliminating any environmental or ecological damage."

L. Report dated 08.01.2021 in OA IV

191. Pursuant to order dated 18.09.2020, another report dated 08.01.2021 received with letter dated 23.02.2021 was submitted by APPCB through Member Secretary and field observations, stating therein as under:

192. In the said report, Annexure III is copy of show cause notice dated 15.12.2020 issued to Chief Engineer, Polavaram/Indira Sagar MIP, referring to observations made in inspection dated 18.11.2020, by officials of APPCB, and extent of compliance/non-compliance, noted therein, is as under:

193. The show cause notice required PPs to show cause why action may not be initiated under Section 33(A) of Water Act, 1974 as amended in 1988 and Section 31(A) of Air Act, 1981 as amended in 1987. Further, a letter dated 08.01.2020 was issued by APPCB to Polavaram/Indira Sagar MIP, (Annexure IV to aforesaid report), giving following directions under Section 33(A) of Water Act, 1974 as amended in 1988 and Section 31(A) of Air Act, 1981 as amended in 1987, to PP:

M. Report dated 01.04.2021 in OA IV

194. Report dated 08.01.2021 was considered by Tribunal on 23.02.2021. Tribunal also considered main submissions advanced on behalf of applicant that EC was granted in 2005 and revised in 2009 but when project was expended in 2016 and further land was acquired, no additional precautions to utilize adverse impact of additional activities were observed. There is adverse impact of Coffer dams on offstream area and huge dumping of muck has taken place without proper environmental management.

195. Tribunal felt that the issues need be addressed by preparing an appropriate action plan by a Committee comprising of Experts, headed by a former Judge. Consequently, Tribunal constituted a six members 151 Committee headed by Justice B. Seshasayana Reddy, former Judge of High Court of Andhra Pradesh with nominees of MoEF&CC, CPC B, Central Soil and Water Conservation Research Institute, Dehradun, IIT Hyderabad and IIT Delhi. Committee was required to submit report as under:

196. CPC B and APPCB were appointed, nodal agency. Pursuant thereto, detailed report dated 01.04.2021 has been submitted by Committee headed by Hon‟ble B. Seshasayana Reddy (former Judge, AP High Court). As per report, Committee visited site on 30.03.2021. Field observations recorded by Committee, are as under:

197. Committee‟s findings on various issues, formulated in Tribunal‟s order dated 23.02.2021, are as under:

As per the detailed project report, there are no designated dumping sites. The PPA selected the dumping yards with in the project area as per the convenience, the map showing locations of 12 dumping yards is enclosed at (Annexure - VIII). As identified dump yards are not sufficient to accommodate the excavated project waste, the PPA made requisition to the State Government for additional land. The State Government acceded the request and acquired additional land admeasuring Ac. 203.74 cents and handed over the same. Dumping details furnished by the PPA are as follows:-

Channel 4 Pilot 50.00 16.20 33.80 -- -- --

Channel 5 Power 42.75 39.75 3.00 75.41 64.89 10.52 House Grand 575.65 443.93 131.72 389.88 364.32 25.56 Total Table No. 2: The details of the dump yards with quantity of muck disposed and their present status are as follows S. Location of Yards Description Quantity Remarks No. of material in Lakh Cu.M 1 Near E- Saddle Dam Soil 80.00 Filled Dump (D1) yard 2 Near F- Saddle Dam Soil 40.00 Filled Dump (D2) yard 3 902 - Hill Back Side Rock 51.00 In Progress (D3) 4 Polavaram (D4) Soil 65.00 Filled Dump yard 5 Near Amma Soil 14.00 Filled Dump 154 Bagavan (D5) yard 6 Mulalanka Dump Soil 180.00 In Progress Yard (D6) 7 Near Paidipaka (D7) Soil 15.00 In Progress 8 Ramaiah Peta (D8) Rock 45.00 Filled Dump yard 9 Old L & T Site (D9) Rock 49.00 Filled Dump yard 10 Spillway Batching Rock 10.00 Filled Dump Plant (D10) yard 11 Power House Soil 42.00 Filled Dump Angulur (D11) yard 12 Power House Old Rock 51.40 In Progress TTY Office (D12) Out of 12 Dump yards, 8 dump yards are filled, 4 are in progress (2 soil & 2 Rock). Out of 8 filled dump yards, 5 dump yards are filled with Soil muck of quantity 241 Lakh Cu.M (D1, D2,D4,D5 &D11) and 3 are filled with Rock muck of quantity 104 Lakh Cu.M (D8, D9 &D10). Out of 12 dumping yard, Mulalanka dump yard which is in progress is the largest dump yard, as per the information provided by the PPA, 180 Lakh Cu.M of soil muck has been dumped in the site.

As on date of Committee visit to Mulalanka dump yard, no safety measures are adopted for stability of the dump site.

b) Assess the damage to the Environment and remedial action.

As per the monitoring conducted by the CSIR-National Environmental Engineering Institute (CSIR-NEERI), the committee observed the following data with respect to Air, Water and Soil.

i. Ambient Air Quality (AAQ) monitoring As per the AAQ monitoring data provided by the CSIR-NEERI, the monitoring conducted inside the BC Colony. Monitored for 48 days, out of which PM10 and PM2.5 exceeded in 8 days and 13 days respectively, against the corresponding 24 hrs average limits as per the prescribed standards of National Ambient Air Quality Standards (NAAQS), 2009. However, it cannot be concluded that the exceeding of PM concentrations is only due to muck dump (Annexure - IX A).

ii. Water monitoring The PPA is getting ground water quality monitoring through CSIR- NEERI. As per the latest reports pertaining to Jan‟2021, the ground water quality at most of the sampling locations for various parameters was well within the permissible limit of Bureau of Indian Standards (BIS) (Annexure - IX B).

155 iii. Soil monitoring The PPA vide Lr.No.CE/PIP/DCE-1/OT-6/AEE1/F-288, dated 22.03.2021 furnished the report (Annexure -II) of Central Soil and Material Research Station (CSMRS) and informed that the dump contains only native soil (mother earth) and not contaminated with any other material. Hence there is no chance of soil & water pollution in nearby areas. Similarly heavy metal analysis carried out by CSIR-NEERI shows that all heavy metals such as Arsenic, Boron, Cadmium, Chromium, Cobalt, Copper, Iron, Mercury, Manganese, Nickel, Lead and Zinc are below screening and response levels as per MoEF & CC guidance document for assessment & remediation of contaminated sites in India (Annexure - IX C).

iv. Damage to the environment  Based on the monitoring report of CSIR-NEERI, except dust pollution in some occasion no other environmental damages observed in surrounding areas of Mulalanka dump yard.

 The project authority diverted/shifted the Kadiamma vaagu from its natural regime. Now the Kadiamma vaagu is going along the boundary of the dump which cannot be bring back to its original location. However, there is a reasonable distance (156 m) between vaagu and BC colony to discharge/evacuate the flood water to river Godavari.

c) Consider the question whether compensation for acquisition of land remains to be paid.

Out of 12 dump yards, 8 are filled up and 4 are in progress. Eleven dump yards are within the originally acquired project area and one dump yard is in the additionally acquired land. Dr. Pentapati Pullarao is concerned with the land acquired in Mulalanka for locating additional dump yard. His principal grievance appears to be non-payment of compensation. The Revenue Divisional Officer under letter dated 30.03.2021 furnished details of land owned by Dr. Pentapati Pullarao and members of his family and also mentioned the reasons for not disbursing the compensation. For better appreciation we may extract the relevant portion of the letter RoC.No.235/2021/R&R, dated 30.03.2021(Annexure-X) of the Revenue Divisional Officer, Jangareddygudem furnished the information to the committee. Table No. 3: Details of Compensation pending and reason for non-payment Sl R.S. No. Extent Awarded Gratuitous Total Remarks No Amount amount @ Compensation in Rs. Rs. to be paid 4,40,000 in Rs.

per acre to be paid 1 346/1 0.56 8,57,690 2,46,400 11,04, 090 The two 156 2 346/1 0.56 8,57,690 2,46,400 11,04, 090 awardees are claiming that the total extent of Ac 1.12 cents belongs to each of them.

The above referred letter sets out the reasons for not disbursing the compensation payable to Dr. Pentapati Pullarao and members of his family. If the land owners are dissatisfied with the compensation, there are other avenues to ventilate their grievances.

The other grievance exposed by Dr. Pentapati Pullarao is with regard to the effects of muck being deposited in the additional land acquired in the year 2016. The grievance has been addressed in the earlier paras of the report.

d) Get muck audit in respect of the project conducted The details of the muck excavated, reused, dumped and to be excavated are detailed in earlier paras of the report. The PPA is maintaining daily progress report on handling and reutilization of muck (Annexure - XI A and XI B).

The project authorities reported that so far, 157.92 Lakh Cu.M. of rock muck and 8.93 Lakh Cu.M. of Soil has been reused in the construction of various components such as spillway, spill channel, cofferdams, approach roads etc. The project authorities proposed to reuse the rock material in construction of the Earth Cum Rock Fill 159 Dam. 217.32 Lakh Cu.M of rock muck and 20.20 Lakh Cu.M of soil is proposed to be reused and balance quantities will remain in the dumps. As per the data provided by PPA (Table no. 1) 14.64 Lakh Cu.M of Rock muck and 546.52 Lakh Cu.M of soil Muck will be remains in dump yard even after closure of project.

e) To deal with any other associated issue.

 With regard to disposal of household solid waste, Mr. A.N.V. Satish Babu, General Manager of M/s. Megha Engineering and Infrastructures Ltd., (MEIL) informs that the accommodation in the project area is provided to bachelors and at the bachelors quarters two separate bins are provided, one for wet waste and another for dry waste and these two bins are being collected by the Polavaram Gram Panchayat on daily basis. He produced the letter issued by the Gram panchayat, Polavaram (Annexure - XII). With regard to sewage, he states that the company has arrangement with private agency for lifting the excess sewage from septic tanks.

 The Kadiamma vaagu has a catchment of 9.71 sq. Miles. Vide information furnished by the Superintendent Engineer, Irrigation Department, Dowleswaram (Annexure - XIII) and at present there is no flow in the vaagu. The runoff water during rainy season is discharged into river Godavari through a sluice system, which will also prevent backflow of Godavari flood waters. During floods in river Godavari, the sluice on the Kadiamma vaagu gets closed.

 As enquired from the revenue officials in the last four years i.e., after the establishment of this dump site, there has been no occasion of inundation of neighbouring paddy fields or the BC colony. However, considering the report of irrigation department stating that the discharge through the sluice is inadequate during floods, the irrigation department may be directed to take action for proper discharge of the flows received through the vaagu."

198. Committee also recorded its recommendations as under:

12011/74/2005-IA.I dated 25.10.2005, in case of change in the scope of the project, the project would require fresh appraisal. In the instant case additional land of Ac 203.74 cents has been acquired for disposal of muck. Whether addition of land to the project area constitutes change in the scope of the project needs judicial interpretation. Therefore, committee is not expressing any opinion on this issue.

2) To ensure adequate sprinkling of water on unpaved road and mud dump yard to prevent dust emissions.

3) Suitable retaining wall with required specifications to be constructed at the toe of Mulalanka dump site along the realigned Kadiamma vaagu.

4) The stability analysis shall be conducted as per the methods of soil mechanics considering the type of soil muck in the dump yard, accordingly suitable slope of soil dump may be designed to prevent the failure of surface/sliding of soil muck. 160

5) Horizontal and vertical storm water drains to be made to regulate the flow of dump catchment to Kadiamma vaagu.

6) Suitable horticultural/forest species to be identified and planted at the surface of the dump.

7) Three rows of strip cropping of suitable grasses to be raised at the edge of the terraces of the dump.

8) Suitable grass species should be raised on the slopes of dump.

9) Adequate watering facilities to be ensured for growing vegetation.

10) To provide settling ponds based on the rainfall pattern around the dump yard.

11) The northern side of the dump is covered with hilly terrain.

During the rainy season, surface runoff of the catchment area of the terrain flows through the dump, so it is suggested to estimate the runoff from the watershed/hilly region and provide proper drainage (Hume pipes) system to drain water wherever necessary.

12) The stone crushers shall not allow to operate until installation of required pollution control measures and obtaining Consent to Operate under the Water Act 1974 and Air Act 1981 from APPCB."

N. Report dated 08.04.2021 in OA I (page 281)

199. Tribunal passed an order on 09.09.2020, observing, since requirement of EC was found necessary, hence for determination of extent of damage and amount of compensation, liable to be paid by PPs, a Committee is constituted comprising CPC B, APPCB, SEIAA, AP and District Magistrate, AP. Pursuant to the aforesaid order, report dated 08.04.2021 has been submitted by the Committee.

200. Report shows that Purushothapatnam LIS, commenced on 30.01.2017, commissioned on 31.07.2018 and inaugurated on 04.01.2019. In order to furnish report on the issues formulated by Tribunal, report said that Committee required certain information, which, it has yet to receive. The desired information is:

O. Report dated 08.04.2021 in RA No. 46/2019 in OA III

201. On 09.09.2020, in RA No. 46/2019 in OA III, Tribunal passed an order observing that since EC was necessary, therefore, Committee should examine the extent of damage caused and amount of compensation liable to be paid. The said Committee would comprise of CPC B, APPCB, SEIAA, AP and District Magistrate, AP. Committee consisting of following Members, submitted report dated 08.04.2021:

202. Committee examined Chintalapudi LIS and KGPR Linking Project. However, it could not give any recommendations or opinion since information required was not made available by various departments. The desired information was:

P. Report dated 19.06.2021 in OA I & II

203. Since information was not received, Committee sought further time from Tribunal. Thereafter, another report was submitted by the said Committee, vide letter dated 19.06.2021, through APPCB. The aforesaid report was objected by applicants vide objection dated 28.07.2021. The reason for objection is that some land owners, whose land was acquired for the purpose of Purushothapatnam LIS, claimed that they had not received land compensation and Solatium etc., under Act, 2013. Later Committee itself withdrew this report as stated in later report dated 06.08.2021.

Q. Report dated 21.06.2021 in RA No. 46/2019 in OA III

204. After availing further time, Committee submitted another report dated 21.06.2021 and made estimate of damage in respect of Pattiseema LIS in para VI of the report, under various Heads, i.e., Land acquisition and Rehabilitation, Impact in upstream states, Impact on Neighboring community, Muck Management and Impacts on fish, by applying formula suggested made by CPC B, in the form of a chart, as under:

Per capita solid waste generated 0.1kg/day.

Marginal cost of environment externality=0.05 Total workers→520 Total solid waste generated per day=0.052 TPD = 2.4*(0.052-0)+0.02*(0.052-

0)*365+0.05*(0.052- 0)*365 EC on account of = Rs. 1,45,340/- Rupees One lac, Forty- solid waste dumping Five thousands, Three hundred and Forty only.

166 VI.j. EC for noise nuisance, dust emission due to transportation:

Further it was also reported that no threatened or endemic flora or fauna species were present in the acquired land. The committee interacted with the R & R Commissioner, verified the records and noticed that the compensation process towards land acquisition is completed for total 172.84 acres as per Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 . But committee suggests R & R Commissioner to carry out survey assessment of 23.41 acres of Government land so that the information on type of trees present is available and same can be conserved in future

4. Polavaram Project Authority which is the nodal agency for monitoring shall exercise strict surveillance mechanism to monitor the activities associated with Polavaram project.

5. The PP shall submit DPR to MOEFCC, CWC and GWDT appraise the project and obtain necessary statutory post facto clearances.

6. The PP shall install automatic full proof system and sensors in order to lift only the approved capacity. The committee suggests that CWC to monitor all the projects so that water from river Godavari is not lifted in excess of approved capacity. Committee suggests that CWC may explore the possibility of installation of an interlocking facility such that pumps may stop soon after lifting approved quantity.

7. The Project Proponent shall pay Environmental compensation to Andhra Pradesh Pollution Control Board as follows:

Environmental compensation for Rs. 7,24,240/-

dust emissions (expressed in Rupees Seven lacs twenty four terms of PM10) thousand two hundred and forty only EC on account of non- Rs. 7,59,200/-

implementation of sewage Rupees Seven lacs fifty nine management plan and disposal thousand two hundred only without any treatment into the environment/riverine system EC on account of Solid waste Rs. 1,45,340/-

dumping Rupees One lac forty five thousand three hundred and forty only EC on account of vehicular Rs. 1,10,653/-

emissions Rupees One lac ten thousand six hundred and fifty three only EC for not utilizing top soil for Rs. 90,77,655/-

beneficial purposes (Rupees Ninety lacs seventy seven thousand six hundred and fifty five only) Total compensation to be 1,90,85,838/-

paid by project proponent Rupees one crore ninety lacs eighty five thousand eight hundred and thirty eight only

8. GWDT may fix the level at Dowleswaram barrage above which surplus water can be drawn.

9. The working area of project site may be taken up for landscaping and beautification.

10. Due to project, 1157 forest trees are lost, the PP in addition to compensation for the trees shall plant Equivalent amount of new trees as integral part of the project within the available land and if necessary, separate additional land may be acquired for this purpose.

11. PP shall identify suitable area for muck disposal and transfer the muck lying in heaps at different locations to designated area in compliance to MOEFCC guidelines on muck disposal.

12. The muck after transfer to new designated area shall be dumped by stabilizing slopes and by adopting dust suppression measures.

13. The PP shall install automatic full proof system and sensors in order to lift only the approved capacity. The committee suggests that CWC to monitor all the projects so that water from river Godavari is not lifted in excess of approved capacity. Committee suggests that CWC may explore the possibility of installation of an interlocking facility such that pumps may stop soon after lifting approved quantity.

14. The committee interacted with the R & R Commissioner, verified the records and noticed that the compensation process towards land acquisition is completed for total 196.25 acres as per Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 . But committee 170 suggests R & R Commissioner to carry out survey assessment of 10.73 acres of Government land so that the information on type of trees present is available and same can be conserved in future. Compensatory afforestation to be carried out in acquired land.

15. The committee concludes that due to construction of the Pattisam LIS without obtaining EC has caused adverse impacts on neighbouring community in terms of dust, noise and traffic congestion which are disturbing in nature but has not caused damage or loss of livelihood to the neighbouring communities. The adverse impacts on the neighbouring community largely restricted to construction stage and has subsequently nullified. Since there is no damage to persons due to construction of project without EC, there is no treatment cost. Hence project proponent need not pay any compensation amount on account of this since there are no affected persons. The PP has taken adequate arrangement to prevent incidence of any endemic health problems due to water/soil/vector borne diseases. The committee has calculated the Environmental compensation by considering various impacts arising out of project, by using satellite images, physical inspection of the area, verification of records. There are no specific affected group of people due to project. There is no specific serious damage due to project and there is no requirement of remediation." R. Report dated 06.08.2021 in OA I & II

207. Thereafter, Committee submitted another report dated 06.08.2021 requesting that the earlier report dated 19.06.2021 be ignored and present report dated 06.08.2021 be taken into consideration. In view of the above stand taken by Committee, we have not taken detailed note of report dated 19.06.2021. For the present matters, we have considered report dated 06.08.2021. Hence environmental compensation has been determined in respect of Purushothapatnam LIS. The conclusions and recommendations, in the said report dated 06.08.2021, are as under:

to traffic congestion Rs. One lac, Twenty Four thousands, Nine hundred and Forty Six only.

EC for not utilizing top soil for Rs. 73,56,500/-

beneficial purposes Rs. Seventy Three lacs, Fifty Six thousands, and Five hundred only.

Total compensation to be 2,48,41,555/-

8. GWDT may fix the level at Dowlaiswaram barrage above which surplus water can be drawn. The committee suggests 173 that the PP shall install automatic full proof system (interlocking) to ensure that only when water reaches level +14.0m at Dowlaiswaram, water is lifted using PPLIS scheme.

9. The committee concludes that due to construction of the Purushothapatnam LIS without obtaining EC has caused adverse impacts on neighbouring community in terms of dust, noise and traffic congestion which are disturbing in nature but has not caused damage or loss of livelihood to the neighbouring communities. The adverse impacts on the neighbouring community largely restricted to construction stage and has subsequently nullified. Since there is no damage to persons due to construction of project without EC, there is no treatment cost. Hence project proponent need not pay any compensation amount on account of this since there are no affected persons. The PP has taken adequate arrangement to prevent incidence of any endemic health problems due to water/soil/vector borne diseases. The committee has calculated the Environmental compensation by considering various impacts arising out of project, by using satellite images, physical inspection of the area, verification of records. There are no specific affected group of people due to project. There is no specific serious damage due to project and there is no requirement of remediation."

Submissions/Stand of the parties during hearing:

linking of rivers scheme, it was incumbent upon State of Andhra Pradesh and its concerned departments/authorities to seek EC under EIA 2006 as amended from time to time, since schemes involved irrigation of more than 10,000 hectares area. Further, consent to establish and consent to operate were also necessary under Water Act, 1974 and Air Act, 1981. State Government and its Authorities i.e., PPs have not undergone the above process. Therefore, they have illegally executed, commenced or commissioned above projects. They could not have done so.

213. On the contrary, on behalf of State of Andhra Pradesh, consistent stand is that no such EC or consent was separately required, since, these schemes were for early benefit of partial infrastructure already raised in execution of a mega irrigation project i.e., Polavaram/Indira Sagar MIP where requirement of EC etc. was already fulfilled and hence there was no illegality on the part of PPs. During the course of arguments, initially there was a feeble attempt on behalf of learned Senior Counsel appearing on behalf of PPs to support above stand of State of Andhra Pradesh but later he could not seriously dispute the stand taken by MoEF&CC and APPCB.

214. However, in order to make the things clear and beyond any controversy or confusion, we find it appropriate to record our findings on 176 the question "whether such EC and consent for lift irrigation schemes was necessary or not", as it is a substantial question relating to environment arising from implementation of laws, mentioned in the Schedule of EP Act, 1986 .

215. Thus, first question needs be adjudicated in these matters is "whether various Lift Irrigation Schemes launched in State of Andhra Pradesh, subject matter of dispute in the above matters needed EC separately under the provisions of EIA 2006 or as claimed by State of Andhra Pradesh/PPs, the Schemes were part of other project namely Polavaram/Indira Sagar MIP, hence did not require any independent and separate EC from Competent Authority under the provisions of EIA 2006 and consent under Water Act, 1974 and Air Act, 1981".

216. The second question, incidental and integrally connected, would be "whether stand taken by MoEF&CC at one point of time that Lift Irrigation Schemes could have been treated to be a part of already sanctioned, cleared and approved projects i.e. Polavaram/Indira Sagar MIP but since work and cost of Lift Irrigation Schemes was not included in Detailed Project Report of above sanctioned project, hence, it would have required amendment of EC, already granted, is correct or all together independent and separate ECs and consent were required"?

217. In case the above issues are answered against PPs, then the next and ultimate issue, third question is, "what would be the liability of PPs for violating Environmental Laws in execution of various projects, defying mandatory statutory provisions, including 177 determination of environmental compensation for damage caused to the environment and its restoration/remediation and other punitive and deterrent action and further course of action". Discussion on Issues 1 and 2

218. Various Committees constituted by Tribunal have submitted reports and consensus therein is that Lift Irrigation Schemes were separate, hence needed separate EC under EIA 2006 and consent under Water Act, 1974 and Air Act, 1981. Most of these reports were accepted by Tribunal. These reports have stated that it was incumbent upon PPs to obtain EC for all these schemes in dispute. There is a voice of discordant in some reports but only to the extent that EC granted to Polavaram/Indira Sagar MIP ought to have got amended.

219. The issue relating to requirement of EC has two-fold. Firstly, statutory provisions applicable and secondly, facts and details of concerned projects and, thereafter, application of both to find out whether separate EC for lift irrigation schemes and interlinking of rivers project was necessary or not. Thus, first, we would examine relevant statutory provisions applicable in these matters. EIA 2006:

220. Section 3(1) of EP Act, 1986 read with Section 2(v) , confers power upon Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving quality of environment and preventing, controlling and abating environmental pollution. Sub-section (2) of Section (3) refers to certain specific subject matters, in addition to general power conferred by sub- section (1). Central Government has issued various orders and directions in exercise of above power, conferred by Section 3 . In M.C. Mehta vs. 178 Union of India (2002)4SCC356, it has been held that such directions are binding on all persons concerned.

221. EP Rules, 1986 have been framed in exercise of power under Sections 6 and 25 of EP Act, 1986. Rule 4 thereof, states that any direction issued under Section 5 shall be in writing. Rule 5 contemplates certain factors to be taken into consideration by Central Government while exercising power for prohibition/restriction on the location of industries and/or carrying on processes and operations in different areas and these factors are detailed in Clause (i) to (x) of Section 5(1) . Procedure for issuing such directions imposing prohibition, restriction etc. is given in sub-section (2) of Section 5 .

222. Exercising powers under Section 3(1)(2)(v) of EP Act, 1986, read with Rule 5(3)(d) of EP Rules, 1986, MoEF issued notification dated 27.01.1994 on Environmental Impact Assessment of Development Projects (hereinafter referred to as "EIA 1994"). It provided that expansion and modernization of any activity (if pollution load is to exceed the existing one) or a new project, listed in Schedule I of the said Notification, shall not be undertaken in any part of India unless it has been accorded EC by Central Government, in accordance with procedure specified in the said Notification.

223. In the light of experience and to make more comprehensive provisions, a new draft notification of EIA was published in Gazette of India, dated 15.09.2005 inviting objections and suggestions. After considering objections and suggestions received, final notification was issued on 14.09.2006, i.e., EIA 2006, in supersession of earlier notification dated 27.01.1994, i.e., EIA 1994. It required a „Prior EC‟ from Central Government or State Level Environment Impact Assessment 179 Authority (hereinafter referred to as „SEIAA‟), constituted by Central Government under sub-Section (3) of Section 3 of EP Act, 1986. All new projects or activities, expansion and modernization of existing projects or activities listed in the Schedule to the aforesaid notification now require „Prior EC‟.

224. Para 2 of EIA 2006 states that projects or activities, which shall require „Prior EC‟ from concerned Regulatory Authority, shall be referred to MoEF where matters fall under Category „A‟ in the Schedule and at State level to SEIAA, matters which fall under Category „B‟ in the Schedule, before any construction work, or preparation of land by project management, except for securing land, is started on the project or activity.

225. The projects are categorized as „A‟ or „B‟, under para 4. For „A‟ Category project, MoEF is the Competent Authority to grant prior EC while for „B‟ category projects etc., it is SEIAA. Para 4 (relevant extract), reads as under:

226. Procedure of examination of project brings in EAC in case of approval by MoEF&CC and State Expert Appraisal Committee (i.e., SEAC), if approval is by SEIAA. The process of examination comprises of three steps, i.e., Screening, Scoping and Appraisal.

227. Para 6 talks of application for „Prior EC‟ and reads as under:

228. Thereafter, procedural stages in regard to „Prior EC‟ for new projects are given in para 7. Para 8 confers power upon concerned Competent Authority to grant or reject application for „Prior EC‟. There is time prescribed within which decision is required to be taken by Competent Authority for rejection of application of EC failing which clause (iii) of para 8 provides that EC shall be deemed to have been granted or denied in terms of final recommendations of Expert Appraisal Committee, i.e., EAC or SEAC, as the case may be. Clause (v) of para 8 states that clearance from other bodies or authorities shall not be required prior to receipt of applications for „Prior EC‟ of projects or activities, etc., unless any of these is sequentially dependent on such clearance either due to a requirement of law, or for necessary technical reasons. Then para 8 clause (vi) of EIA 2006 consider the matters where 181 incorrect information(s) have been given or there is a case of concealment of facts etc. and says:

229. In the Schedule, item 1(c) talks of River Valley projects and reads as under:

231. Item 1(c) in the Schedule was further amended by insertion of entries in Columns (2), (3), (4) and (5) vide Notification dated 25.06.2014 182 [S.O. 1598(E)] published in Government of India‟s Gazette (Extraordinary) of the same date. The said amendment reads as under:

232. On the same date another Notification dated 25.06.2014 [S.O.1599(E)] was published in Government of India‟s Gazette (Extraordinary) of the same date, wherein entire item 1(c), (entries in all the columns in Schedule) was substituted as under:

on main Godavari River itself, near Polavaram. After detailed investigation, Ramapadasagar Project Report was finalised in 1951. After due consideration of project, it was felt that there should be a multipurpose project on river Godavari which resulted in finalisation of Ramapada Sagar Project report, contemplating and comprising of:

247. Estimated total cost of project was Rs. 129 crores. At that time, scheme worked out to be very costly on account of great depths of alluvium on one flank, sands on the other and with acceptable rock available at great depths, hence it did not fructify for various obvious reasons, including financial constraints and construction difficulties.

248. In August 1953, there was extraordinary flood in the river Godavari. Hence it was considered to have a barrage on the main river, looking into the interest of Visakhapatnam Steel Plant. Various agreements were launched by the neighbouring States for sharing Godavari water and for construction of Polavaram Project with a Full Reservoir Level (FRL) 45.72 M (150.00 ft.). Detailed investigation undergone in respect of Polavaram Irrigation Project in 1976 and Project 188 Report was first presented in 1978. With further investigations and also based on the comments of Central Water Commission, on 1978 and 1982 Project Reports, the same was finalized in 1986 for estimated cost of Rs. 2665 Crores.

249. Water of rivers Krishna and Godavari was allotted among the Basin States, as per 1951 Agreement. After reorganisation of States in 1956, there were major changes in the boundaries of Basin States. Thereafter, all attempts for an amicable settlement for sharing of water did not yield satisfactory results, giving rise to necessity of an adjudicating forum and that is how, Government of India, on 10.04.1969, constituted Godavari Water Disputes Tribunal (GWD Tribunal). With the intervention of Ministry of Agriculture, Government of India, with States, some bilateral agreements were entered which were rectified under a common agreement, on 19.12.1975, and incorporated in final adjudication/award dated 07.07.1980, delivered by GWD Tribunal. Clause VI of final order of Tribunal said:

250. The necessity of project included various aspects namely irrigation, power water supply, flood control and navigation.

Irrigation, Power, Flood and other aspects of this Project:

251. State of Andhra Pradesh is predominantly an agricultural State with more than 51.58 % of income generated through Agriculture. 189 Exploration of sources of irrigation is a constant requirement. Out of 11.49 million hectares of net area, only 3.34 million hectares was irrigated by canals, tanks, wells and other sources. Thus, only about 14% of the net area sown under Irrigation, as compared to All-India figure. Area under assured sources of Irrigation in Krishna and Godavari Deltas was about 0.9 million hectares. Nagarjuna Sagar Project on Krishna River was expected to serve about 0.8 million hectares of land in Nalgonda, Guntur and Prakasam Districts. Sriramsagar (Pochampad) Project on the River Godavari, after completion of Stage-II, would have served an area of 0.7 million hectares of land in Districts Nizambad Adilabad, Karimnagar, Khammam and Watangal. The upland areas, situated in districts East Godavari and Visakhapatnam on the Left flank, and upland of West Godavari and Krishna Districts on the right flank, had no other sources of dependable supply except Godavari River. The failure of rains results in frequent drought and distress conditions. The streams draining the tract are flashy and undependable. Irrigation from these streams is precarious. Therefore, it was essential to safeguard these areas from a dependable source of supply.

252. Coming to power supply aspects Andhra Pradesh (undivided), was the fifth largest State of India and fourth in population. It had vast industrial potentialities by way of abundance of raw-materials and human resources, apart from its central situation and accessibility to important industrial areas, to important ports and to big cities. The estimated hydro power potential of State was about 3,000 MW, and utilisation was hardly 1,652.9 MW.

253. Despite having good inland water-ways, very good railway, road communication systems, and First-Class harbour in Visakhapatnam, 190 State continued to be industrially backward though it had all requisite infrastructure for large industrialisation. One of the main reasons was lack of cheap and abundant electric power. To some extent Polavaram/Indira Sagar MIP would have contributed to requirement of power, mostly during monsoon, being seasonal, but during certain period firm power production also.

254. Water supply aspects also could have been met from the said project to a larger extent. Port city of Visakhapatnam and its Industrial complex, Steel Plant and other auxiliary industries existing and proposed to be set up nearby, the existing outer Harbour, Naval Complex, shipyard, Refinery etc., require abundant and uninterrupted supply of water. The people in upland areas of Vizag, East Godavari, West Godavari and Krishna suffer for want of drinking water during summer months. This problem could have been met to large extent by the said project.

255. The next aspect is flood control. In the past, people in Andhra Pradesh suffered a lot due to frequent floods in Godavari, causing damage to standing crops and loss to property and cattles, worth several crores, in the plains. The fury of floods met by people in Andhra Pradesh in 1953, 1959 and 1986 is still haunting. No permanent steps were taken to mitigate flood hazards. Polavaram/Indira Sagar MIP, to some extent would be capable of taming the river, regulate flow of river water in the planes beyond Polavaram and recurring flood havoc could have been mitigated.

256. So far as navigation aspect is concerned, various forest produce including coal available in the up-stream regions of the fore-shore, and the food grains, used to be transported by railways or by road, by 191 circuitous routes. The river navigation was not possible during lean months due to insufficient depths of flow. In view of the formation of fore-shore lake and Left Canal designed for Navigation, Polavaram/Indira Sagar MIP would have facilitated cheap and quick transport of forest produce and food grains to marketing centres, and various ores and coal to Industries.

257. The foundation stone of Polavaram Irrigation Project was laid in 1980 by Shri T. Anjaiah, the then Chief Minister of Andhra Pradesh, but it could not take up any progress for the next two decades. In 2004, the then Government of Andhra Pradesh decided to take up the project as part of its ambitious programme, „Jal Yagnam‟.

258. Letters dated 30.07.2004, 23.03.2005 and 11.08.2005 were sent by Secretary Irrigation to MoEF for site clearance which was accorded by MoEF vide letter dated 19.09.2005 (Annexure A-1 of the documents filed on behalf of respondents 2 and 3). The said letters show that proposed Polavaram/Indira Sagar MIP was conceived as Multipurpose Project conferring irrigation benefits to 7.20 lakh acres in the upland area of West Godavari, Krishna, East Godavari and Visakhapatnam districts, 21 cumecs drinking water supply, 1.8 × 10cum/day industrial water supply and generation of Hydel power with an installed capacity of 960 MW.

259. The project side is located at 42 Km upstream of Sir Arthur Cotton Barrage near Polavarm Village, the river Godavari. The proposed dam involves displacement of nearly 1,17,034 people of different ethnic groups in 276 villages and submersion of 38,186 hectares land in Nine Mandals of West Godavari, East Godavari and Khammam district in Andhra Pradesh. Further, 13 villages in Chhattisgarh and 10 villages in Orissa were likely to be submerged. In addition, 3222.35 hectares forest 192 land is/was coming under submergence. The site clearance was granted with certain conditions contained in the letter dated 19.09.2009, which read as under:

mentioned site and for collection of environmental data for preparation of comprehensive EIA report and management plans. This should not in any way be construed as commitment for environmental clearance of any hydroelectric project at the site.

iv) No civil work of permanent in nature on the project shall be initiated in anticipation of the final approval of the Ministry. The Project Authority would have to apply for environmental clearance by submitting environmental data and plans.

v) Forest clearance should be obtained for acquisition of forest land.

viii) The fund requirements for environmental aspects should be included in the budget of the project for evaluation of economic feasibility of the project.

ix) Ministry reserves the right to suggest additional measures for environmental protection during the investigation stage, if found necessary."

260. The project was titled as „Indira Sagar (Polavaram) Multipurpose Project‟. Department of Irrigation, Government of Andhra Pradesh sought EC, in accordance with Environmental Impact Assessment Notification 1994 (hereinafter referred to as „EIA 1994‟) and the same was granted by MoEF vide letter dated 25.10.2005. As per EC document, it is evident that the project intended to provide irrigation facilities to 2.91 lakh hectares in Visakhapatnam, East Godavari under LMC and West Godavari and Krishna Districts under RMC; project is across the river Godavari; it would generate hydel power of 960 MW, divert 80 TMC of 193 Godavari water to Krishna River for stabilizing existing command under Prakasam barrage and provide drinking facilities to 540 enroute villages covering 25 lakhs population besides supply of water to Visakhapatnam city and industries enroute; total land requirement for the project is 46,060 hectares, out of which 3,279 hectares is forest land for which forest clearance was to be obtained; project is likely to affect 1,75,275 persons in Andhra Pradesh, 6,316 persons in Orissa and 11,766 persons in Chhattisgarh, and capital cost of the project was Rs. 9,072 crores. In part B, general conditions, clause 6 said, in case of change in the scope of project, it (project) would require a fresh appraisal.

261. A Writ Petition No. 3669/2006 was filed by Shri Laxman Munda in High Court of Orissa wherein an order was passed on 22.03.2006, directing that State of Andhra Pradesh may proceed with construction of Indira Sagar (Polavaram) Multipurpose Project, after complying with the requirements of all laws applicable in this regard, in such manner that no land/village/area situated within the territory of State of Orissa is submerged. Consequently, MoEF&CC, vide letter dated 25.04.2006, informed Secretary (Projects), Irrigation and CAD, Government of Andhra Pradesh to consider aforesaid direction of High Court of Orissa as one of the conditions, added in EC letter dated 25.10.2005.

262. Clearance of Resettlement and Rehabilitation (R&R) Plan for Scheduled Tribe (project) affected families in respect of Indira Sagar (Polavaram) Irrigation Project, was granted by Government of India, Ministry of Tribal Affairs, vide letter dated 17.04.2007, subject to certain conditions, which we find, not relevant for the purpose of issue in dispute.

263. The conditions mentioned in clearance of Resettlement and Rehabilitation Plan were modified and revised by letter dated 24.05.2007 issued by Ministry of Tribal Affairs, Government of India stating that it shall be ensured by PPs that no submergence and displacement of people including Scheduled Tribes takes place in the territories of States of Orissa and Chhattisgarh and population of these two States including Scheduled Tribes do not get adversely affected, in any manner, either by changes in drainage regime or by any kind of primary/secondary displacement.

264. Diversion of 3731.07 hectares of forest land (3473.00 hectares notified forest area plus 258.07 hectares „deemed forest land‟ as per Supreme Court‟s definition in T.N. Godavarman Thirumulpad vs. Union of India & Others ) was considered by MoEF&CC and vide order dated 26th/29th December, 2008 (Annexure A6 to the documents filed by respondents 2 and 3, at page 223), it conveyed its principle approval under section 2 of FC Act, 1980 subject to fulfillment of certain conditions mentioned in the said letter.

265. EC granted to the said project was challenged before National Environment Appellate Authority (hereinafter referred to as „NEAA‟) by Academy for Mountain Environics. EC was quashed on the ground that public hearing was not conducted in State of Chhattisgarh and Orissa when EC was granted. The above order of NEAA was challenged by State of Andhra Pradesh in a Writ Petition before High Court of Andhra Pradesh wherein an interim order was passed, staying order of NEAA. High Court also allowed State of Andhra Pradesh to proceed with the construction work.

266. In regard of diversion of forest land, State Government submitted compliance of conditions, stipulated in letter dated 26.12.2008. Consequently, final approval was granted by MoEF&CC vide letter dated 28.07.2010 (Annexure A-8 to the documents filed by respondents 2 and 3, at page 232).

267. In 2014, State of Andhra Pradesh was reorganised as State of Andhra Pradesh and Telangana, vide APR Act, 2014 which came into force on 01.03.2014. The two States were formed with effect from 02.06.2014, the appointed date notified under the said Act. Under Section 90 thereof, Indira Sagar (Polavaram) Multipurpose Project was declared a project of national importance. Section 90 says:

268. Section 85 of APR Act, 2014 empowered Government of India to constitute Godavari River Management Board (GRMB) and Krishna River Management Board (KRMB) for administration, regulation, maintenance and operation of such Projects, as may be notified by Central Government, from time to time. Section 84 conferred power upon Central Government to constitute an Apex Council for supervision of the functioning of GRMB and KRMB. However, so far as Polavaram/Indira Sagar MIP is concerned, vide declaration made under Section 90 (2) of APR Act, 2014, Government of India took under its control, regulation and development of said project for the purpose of irrigation. Section 196 90(4) says that Central Government shall execute the project and obtain all requisites clearances including environmental, forests, rehabilitation and resettlement norms.

269. For the purpose of carrying out mandate under Section 90(4), Government of India issued Notification dated 28.05.2014 constituting "Polavaram Project Authority" (i.e., „PPA‟) and Governing Body of PPA. Duties and functions of Governing Body to PPA are given in para 8 of the said Notification and powers, functions and duties of PPA are given in para 9, as under:

270. We are informed that the work of Polavaram/Indira Sagar MIP is in process and likely to be completed in the year 2022.

271. Thus, so far as Polavaram/Indira Sagar MIP is concerned, it is a multipurpose project. It has observed all legal requirements including sanctions/clearances/permissions/approvals under environmental laws before commencement. This is a common stand of all the parties, including applicants, and in fact no issue has been raised about lack of EC or/and Consent etc. in respect of Polavaram/Indira Sagar MIP.

272. In OA IV, the issue raised is about non-compliance of conditions of EC, and not lack of EC. The issue is not about the valid execution of Polavaram/Indira Sagar MIP. The complaint about above project is non disposal of soil, rock, and construction debris, in short muck in unscientific manner causing damage to environment. Purushothapatnam Lift Irrigation Scheme (PLI Scheme):

273. The DPR of Purushothapatnam LIS is on record as Annexure A-1 at page 18 to OA I. The scheme apparently mentions, its purpose, as drawl and lifting of water from river Godavari near Purushothapanam village, Seethanagaram, and dropping into PIPLM Canal at 1.800 km in stage I, and lifting of water from left main canal at 57.885 km and taking to Yeleru reservoir in stage II. The scheme would include the components like construction of pump houses, associated civil hydro mechanical, electro mechanical work, construction of electrical substation, transmission line including installation, laying of MS presser means, construction of delivery cisterns, operation and maintenance of entire system complete for providing irrigation facilities, domestic and industrial needs of Vizag city as part of „Uttarandhra Sujala Sravanthi‟, to achieve early benefit.

274. The project was conceived in 2016 with an estimated project cost of Rs. 1638 crores. The project was conceived with a clear stipulation that to meet requirement of an ayacut of 67,614 acres under Yeleru Irrigation System, drinking and industrial need of Vishakhapatnam, pumping scheme for augmentation of water in Yeleru Reservoir Project is proposed from Godavari River near Purushothapanam village of Seethanagaram Mandal in East Godavari. The project is located on Akhand Godavari at Left Bank at 40.800 KM near Purushothapanam village in Seethanagaram Mandal. It is a lift irrigation project to divert surplus flow of river Godavari to Yeleru River, by lifting, during contingency for domestic and industrial purposes.

275. Purushothapatnam LIS envisages pumping of 100 Cumecs (3500 Cusecs) of water from Godavari River in two stages to PIPLM Canal. In the first stage, it was proposed to construct pump houses with diaphragm wall system foundations to accommodate 10 numbers of vertical turbine pumps, installation of pumps, delivery pipes, control panels, pressure means and construction of delivery systems and erection of electric substation. In the second stage, it was proposed to construct pump houses with conventional system foundations and accommodate 4 numbers of vertical turbine pumps, installation of pumps, delivery pipes, control panels, pressure means and construction of delivery systems and erection of electric substations. Cost benefit ratio of the said scheme was worked out as 2.60. Head works of Stage I and Stage II are stated in DPR, as under:

276. Though in DPR, in the initial part, it is mentioned that the Scheme is for providing irrigation facilities, domestic and industrial need of Vizag city but in check list appended to DPR, concerned authorities deliberately, or at least for not bona-fide reasons, confined to mention only „domestic and industrial use‟ and avoided to mention „irrigation‟ as one of the purpose for which the said scheme was sought to be executed and all inquiries with regard to „irrigation‟ were answered as „not applicable‟. Again, in Section 2 , salient features in the context of the projects, it is clearly mentioned as "for providing irrigation facilities, domestic and industrial needs of Vizag city as a part of Uttarandhra Sujala Sravanthi to achieve early benefits". But then detailed queries have been answered by confining to „industrial and domestic use‟ and answering other aspects mostly „as inapplicable‟.

277. We also find from record, at page 96 of the paper book, where calculation for cost benefit ratio has been given, that the concerned authorities, preparing DPR, have taken into account availability of water 201 from the said scheme for „irrigation purposes‟ also. In fact, substantial part is credited to „irrigation‟. The apportionment of total available quantity of water pumped in vis-a-vis the requirement for drinking and irrigation purposes is mentioned, as under:

" "Calculations for Cost Benefit Ratio Total Available Quantity considering 100 days of 30.24 TMC pumping Drinking water requirement 10 % 3 TMC Industrial water requirement 20 % 6 TMC Irrigation Requirment 21 TMC Ayacut to be irrigated at 70 duty 215000 Acs Polavaram Project Left Main Canal Ayacut 148000 Acs Other benefitted Ayacut 67000 Acs "

278. Further, calculation of benefit cost ratio before irrigation and after irrigation is given as under:

279. „e‟-procurement notice (Tender Notice No. 23/2016-17 dated 01.11.2016), 2nd Call, hard copy whereof is on page 103 in OA I, under the Head „Name of work‟ mentions the above scheme, for irrigating Polavaram Left Canal ayacut upto 57.88 km. It reads as under:

280. Similar repetition we find in „e‟-procurement notice (Tender Notice No. 23/2016-17 dated 31.10.2016) (at Page 106 in OA I).

281. In OA II, reply on behalf of State of Andhra Pradesh and others, i.e., respondents 6, 10 and 11, in para 16 admits that the scheme would be used for irrigation. This is evident from the objective and scope and study of the above project which we have already reproduced in para 53 of the judgment hence not repeated but reiterating that the above reproduction makes it very clear that the project in question indeed had contemplated irrigation of more than 10,000 ha of land as an objective of launch/execution of the said project.

282. The above stand then has been sought to be explained on the ground that the ayacut i.e., the land sought to be irrigated is also covered by Polavaram/Indira Sagar MIP in respect whereof Environmental Impact Study has already been conducted, therefore, no EC was required for Purushothapatnam LIS. The explanation is only misconceived and it also shows that State of Andhra Pradesh and its authorities were well aware that the said scheme is to be used for irrigation purposes and, therefore, it is an irrigation project though it 203 may have additional uses like drinking and industrial purposes but that will not convert this scheme as a non-irrigation project and the stand taken by respondents is not only misleading, misconceived but shows that from the very beginning, project was contemplated for providing irrigation to a huge land, still in order to avoid statutory requirement of EC/consent/permissions/NOCs, authorities proceeded in haste and have not felt any hesitation in violating mandatory statutory environmental laws at the cost of affecting environment.

283. MoWR in its reply in OA II has also taken a very categorical stand that Polavaram/Indira Sagar MIP and Purushothapatnam LIS have no association/connection and later, is not included in the DPR of former one. This stand has been taken in parawise reply at paragraphs 2, 4, 6 and 19. We may reproduce relevant extract from paragraph 19 of the affidavit dated 27.08.2018 filed on behalf of MoWR,RD&GR:-

284. The above details, nowhere shows that Purushothapatnam LIS was ever sought to be commenced as a part and parcel of Polavaram/Indira Sagar MIP. On the contrary, since Polavaram/Indira Sagar MIP could not be completed, in order to have an early benefit of partially completed infrastructure for irrigation, domestic and industrial use of water, Purushothapatnam LIS was conceived and sought to be executed. Authorities were aware that an irrigation project covering more than 10,000 acres of land will require Environmental Clearance under EIA 2006, but to escape from undergoing scrutiny of the project under the above statutory environmental laws, State Government authorities attempted to show as if Purushothapatnam LIS is only for drinking and 204 industrial use of water and that is how took no action or steps for having Environmental Impact Assessment by undergoing process provided under EIA 2006. They did not mend their attitude even when things were minutely examined and not only MoEF&CC but various Committees appointed by Tribunal expressed their view that EC was necessary. It was found that more than 50,000 acres of land had to be irrigated by the water made available under Purushothapatnam LIS and, therefore, EIA 2006 was applicable but violated by PPs, i.e., State of Andhra Pradesh and its officers.

285. Purushothapatnam LIS commenced work on 30.01.2017, commissioned on 31.07.2018 and inaugurated on 04.01.2019, as stated in Joint Committee Report dated 19.06.2021, submitted in compliance of Tribunal‟s order dated 09.09.2020 passed in OA I & II. The project required 151.43 hectares of land (104.54 ha in Stage I and 46.89 ha in Stage II). Total land included 119.87 hectares agricultural land and remaining 31.56 hectares was Government land. No EC was obtained and instead only on 25.05.2015, DPR was submitted to GRMB Hyderabad who returned the same with some remarks. Thereafter, DPR was resubmitted to GRMB Hyderabad on 11.12.2020 for onward submission to CWC, New Delhi.

286. We also find that different dates with regard to completion of the project, i.e., Purushothapatnam LIS, have been given in as much as Annexure 1 to rejoinder filed by applicant in reply to the response of respondents 2 and 3 accompanying affidavit dated 03.04.2018, the scheme was dedicated by the then Chief Minister to nation by switching on two motors pumping Godavari water into Polavaram Left Canal and from there to Yeleru Reservoir on 15.08.2017. In the compliance affidavit 205 dated 19.07.2019 filed on behalf of MoEF, pursuant to Tribunal‟s order dated 15.07.2019 in OA I in para 4, it is said that Regional Officer, MoEF informed that construction of Purushothapatnam LIS completed on 30.04.2019. In Committee report, the dates are different. We could find no explanation of these discrepancies in dates of completion of the project either on record or from the proponents or from the Counsel appearing for State.

287. The aforesaid report also shows that pumping and lifting of water from River Godavari was started from August 2018 onwards. MoEF&CC issued show cause notice dated 23.07.2019 to Purushothapatnam LIS, with further direction to stop work, whereafter PPs stopped all pumps on 02.08.2019. During 2020, due to pendency of this case, operation of Purushothapatnam LIS remained stopped. Total quantity of water lifted during 2018 is 13.33 TMC and during 2019 (up to 02.08.2019) is 0.31 TMC.

288. Report also shows that in execution of work of Purushothapatnam LIS, 15,11,902 cum of muck was generated in Stage I and 8,14,418 cum of muck in Stage II. This quantity of muck included constructions debris also. This muck was dumped by PPs in the land owned by them, near point of excavation, in the form of large heaps. In fact, PPs did not maintain record of quantity generated and quantity reused. Huge quantity of muck was found lying as heaps by Joint Committee. Total quantity of muck generated was 2326320 m3. No record was maintained but PPs authority informed that 70% muck would be reused for refilling. The quantity of muck remained lying at different dump locations was 697896 m3. The work was carried out within 2 kms. of population but to 206 manage dust emission from construction activities, no steps were taken or shown to have been taken by PPs.

289. The construction activities also had impact on environmental quality, sewage generation and disposal. 43835.5 m3 of sand was mined and utilized for construction but for mining of sand, no permission/clearance/approval was obtained from the Competent Authorities under environmental laws. „Consent to Establish‟ and „Consent to Operate‟ was not obtained from State Pollution Control Board, i.e., APPCB. Even mining permit/licence was not obtained from the Mining Department. The entire activities thus were/are wholly illegal. Committee has also found that for protection of top soil, which was most fertile soil, essential for plant growth no steps were taken for preservation or best use though almost one and half feet of top soil from 156.04 acres of land was removed and this comes to 294260 m3. Though it is claimed that the soil has been used for refilling but it was mixed with construction debris and substantial quantity of soil was not at all reused.

290. This project was proposed by Engineer in Chief Polavaram Irrigation Scheme, Dowlaiswaram vide letter dated 06.08.2016, seeking approval for estimated amount of Rs. 1704.65 Crore for supply of water, by lifting from River Godavari at the rate KM. 40.80 of left bank near Purushothapatnam to fill up Yeleru reservoir through LMC of Polavaram/Indira Sagar MIP and for supplementation of water to the ayacut under Yeleru river besides domestic and industrial use as a part of water grid by lifting 100 cumecs (3500 cusecs) of water from river Godavari. While granting approval, vide letter dated 14.10.2016, State Government clearly mentioned that the scheme is for irrigation as well as 207 for use of water for domestic and industrial purposes. Para 2, 3 and 4 of the letter (annexure A-10 to OA III) is reproduced as under:

291. Pursuant to order dated 20.02.2020 passed in OA I, Committee comprising members of EAC of MoEF&CC on River Valley Project, CPC B and IIT, Roorkee, examined the issue whether EC was required for lift irrigation scheme or not and its meeting dated 05.03.2020, has categorically taken a view, as under:-

292. Requirement of EC under EIA 2006 and talks of irrigation project does not refer to the manner in which the project would be executed so as to decide whether EC would be required or not. Similarly, the nature of construction activities, the designs etc., are also not relevant and the only thing to be seen is, if it is an "Irrigation Project" then requirement of EC under EIA 2006 is mandatory. If there was another irrigation project covering the similar or same area or part of same area in which any subsequent scheme is sought to be launched, it cannot be said that the exercise with regard to Environment Impact Assessment etc., undertaken in earlier or existing scheme would make requirement of prior EC to subsequent scheme inapplicable or inoperative and this argument or assumption on the part of State Authorities is clearly misconceived. The attempt to read something in the statute which is not there attempt can neither be allowed nor permissible in law. Once, it is evident that the scheme in question is required for providing irrigation and will be used for irrigation purposes; if other requirements under EIA 2006 are satisfied, then prior EC is mandatory.

Pattiseema Lift Irrigation Scheme:

293. The above scheme was executed to divert water from river Godavari to river Krishna by lifting surplus water during floods. It was proposed to lift 240 m3/sec water through 8 numbers of pumps. It was granted administrative sanction in 01.01.2015 and technical sanction was accorded vide Government memo dated 13.01.2015 but at the time of its proposal, it was said that the water shall be used only for domestic and industrial purposes and there was no mention about irrigation facilities for scrutiny from hydrological angle by Central Water Commission. The above approval was for Rs. about 1300 Crores which was revised vide administrative approval dated 09.11.2016 for Rs. 1667.15 Crores. 209 Revised technical sanction was accorded vide letter dated 14.11.2016. It was referred by the letter dated 13.04.2016. Director, Central Water Commission hydrology (South), New Delhi vide letter dated 16.05.2016 observed that a good layout map of scheme be given for clarity. However, it appears that the actual work was already started in March 2015 awarding work order at a cost of Rs. 1427.70 and the work was actually completed in March 2016. This fact is mentioned in the report of CAG on Economic Sector for the year ended March 2016 at page 110/111 in OA III. Audit report also shows, when officials of the Project were enquired about beneficial industries and villages for supply of water, the reply given was that no such identification was made. The relevant extract of Audit report is reproduced as under:

294. For execution of Pattiseema LIS, CAG report also found violation of provisions contemplated clearances/permission/sanction and the relevant extract of the report says:

295. Annexure A-6 in OA III is the copy of reply received by the applicant under RTI Act and it shows that out of total available quantity considering 100 days of pumping of water i.e., 74 TMC, the requirement for different purposes was shown as under:

296. It further says that the area which would be benefitted by irrigation as under:

297. Similarly, in OA I, State of Andhra Pradesh impleaded as respondent 2 in Counter Affidavit dated 28.08.2017 have also admitted para 46 that Purushothapatnam LIS will provide water for drinking and industrial purposes and also agricultural purposes. Relevant extract of paragraph 46 reads as under:-

298. Here also similar explanation has given as given in OA II and the same lacks merit as we have already said for the reasons stated above. Similar explanation, we find in paragraphs 55, 56 and 66.

299. In the report of joint Committee dated 28.06.2019 in OA III, it is said that the project commenced on 30.03.2015 and completed on 28.03.2016. 168 acres of land was acquired for the said project and the estimated cost of the project was 1677.15 crores.

300. State of Andhra Pradesh in its affidavit dated 19.11.2019, in Review Application, in OA III, has admitted that Pattiseema LIS may not 211 be a technical part of Polavaram Project but then explained that in a sense it serves the purpose of Polavaram Project and, therefore, EC is not required.

Chintalapudi LIS:

301. The above scheme was proposed sometimes in April 2008 with an objective to provide water for irrigation to about 2 lakhs acres of upland areas situated above +40.0 meters contour i.e. land situated above RMC. The proposal shows that Polavaram/Indira Sagar MIP was not contemplated to cover upland areas lying above the commandable level of RMC. The farmers of the area, deprived of the facilities of irrigation and not covered by the above project, made a demand of irrigation facilities to the area by providing lift irrigation schemes from river Godavari. The demand was accepted by State Government. It granted approval vide letter dated 24.10.2008 (annexure A-7 in OA III). Administrative sanction for a sum of Rs. 1701 crores to execute Chintalapudi LIS on River Godavari was issued to provide irrigation facilitates for an ayacut of 2 lakh acres in West Godavari and Krishna Districts. The above scheme was proposed to be executed by PPA itself since it was proposed by the officials of the said project. Paras 5, 6 and 7 of the approval letter are reproduced as under:

7. The Chief Engineer, Indira Sagar Polavaram Project shall take further necessary action in the matter accordingly."

302. For execution of the project, work was divided into two packages and entrusted to Contractors/working packages.

303. While approving the project, vide letter dated 24.10.2008, the proposed Terms for Reference of EIA studies was also prepared (page 126 to 147 in OA III). It shows that scheme was proposed at 25.50 km upstream of Sir Aurthur Cotton Barrage at Dowlaiswaram on Akhanda Godavari right bank near Tadipudi village of Tallapudi Mandal, West Godavari district of Andhra Pradesh to draw 56 cumecs of water from river Godavari. Scheme had two packages which is as under:

304. The proposal nominated M/s. Pragathi Labs Ltd. Hyderabad to carry out EIA studies for the said scheme. ToR mentioned salient features of the scheme under the heading „Command Area‟, 80939 hectares (2 lakh acres) and under the head „Demand‟, 15.5 TMC. It was mentioned that 15.500 TMC water shall be lifted in all, whereof 14.047 TMC shall be for irrigation and 1.4530 TMC for drinking purposes. Evidently scheme was for „irrigation purpose‟.

305. The work though commenced in 2009, but could not be completed. Government of Andhra Pradesh‟s letter dated 03.09.2016 (annexure A-8 213 in OA III) shows that work was in progress when the said letter was issued. Government revised estimate and approved for Rs. 4909.80 crores.

306. Applicant has stated in para 8(iv) of the application that scheme passes through "Reserve Forest", hence requires Forest Clearance. Application seeking Forest Clearance was submitted only on 25.03.2015 though work had already commenced long back.

Inter-linking of Godavari and Penna Rivers (KGPR Linking Project):

307. Vide letter dated 28.04.2018, Chief Engineer, Krishna Delta System, Vijayawada, linking of River Godavari and Penna in five phases, was proposed to lift water from river Godavari (through pumps installed at Chintalapudi LIS and Pettiseema LIS) to Krishna river through Polavaram/Indira Sagar MIP RMC, lifting 7000 cusecs of water from Krishna river at 21 km upstream of Prakasam Barrage near Harishchandrapuram in Thuluru Mandal (Krishna River Right Bank) to deliver into Nagarjuna Sagar Jawahar Canal at KM 80.000 near Narsingapadu village of Nekarikallu Mandal with five lifts to stabilize 9.61 lakhs acres of existing of ayacut and to serve the gap ayacut of 1 lakh acres and to meet the drinking and industrial needs in Guntur and Prakasam Districts. The proposal was to lift 73 TMC of water during 120 flood days. State Government of Andhra Pradesh, vide letter dated 13.06.2018 (Annexure A-11 of OA III), granted administrative sanction of Rs. 6020.15 crores for the work of inter-linking of Godavari and Penna phase-I from Harishchandrapuram (V) to Nekarikallu (V) in Guntur District.

308. As per report dated 28.06.2019, the project required 4984 hectares of land where against 4575 hectares was acquired. The command area 214 for irrigation was 194253 hectares and the estimated cost of the project was Rs. 4908.80 Crores. The land involved 3132 hectares of forest land where against forest clearance for 347.64 hectares was granted for Stage I and II by MoEF&CC and for remaining area the process for obtaining clearance was in progress. With regard to EC, it is said that the project authorities approached MoEF&CC and the matter was considered in the meetings dated 24.08.2015 and 27.03.2018. However, there is nothing to show that EC was actually granted or issued.

309. It is evident that the project is an independent one intended to create ayacut of 80939 hectares and stabilization of 113314 hectares. The report also shows that construction of canal works and pump houses are in progress in the area where stage I and II forest clearance is obtained.

Interlinking Godavari and Pennar river:

310. Report dated 28.06.2019 shows that construction activities have not started till submission of report. The project required 1428 hectares of land which was identified but acquisition proceedings have not commenced. Report further says that though the report is an independent one but even phase-I of the project was at proposal stage and not even a Detailed Project Report (DPR) for five phases, in which project was supposed to be completed, was prepared. The proponents informed the Committee that in phase-I of the project, investigation work was complete but land acquisition is yet to commence. However, some electro-mechanical materials were procured. Total estimated cost of the project was 84968 Crores.

311. Now having referred to the statutory provision of EIA 2006, as amended from time to time and reading the same with other relevant 215 statutes i.e. EP Act 1986, Water Act, 1974 and Air Act, 1981, we are very clear in our mind that all the above 4 projects namely, Purushothapatnam LIS, Pattiseema LIS, Chintalapudi LIS and KGPS linking project are distinct and separate from Polavaram/Indira Sagar MIP. The later one i.e., Polavaram/Indira Sagar MIP is an age old project which was granted EC on 25.10.2005, revisited in 2009 and still in the process of completion. Purushothapatnam LIS was conceived in 2006. Though partial infrastructure of Polavaram/Indira Sagar MIP was sought to be utilized to give effect to Purushothapatnam LIS but the construction activities of Purushothapatnam LIS, the cost incurred thereon and the manner of its functioning was different and mere fact that some existing partial infrastructure of Polavaram/Indira Sagar MIP was sought to be utilized will not make Purushothapatnam LIS, as a part of Polavaram/Indira Sagar MIP.

312. Polavaram/Indira Sagar MIP is a National Project, substantially financed by Government of India but neither Purushothapatnam LIS was so approved by Government of India nor in the matter of funds, any assistance was provided by it. Government of India categorically and specifically has stated that Purushothapatnam LIS was not a part of Polavaram/Indira Sagar MIP at any point of time and never so approved/accepted or recognised by Government of India. In fact, no material to this effect could be shown by the State of Andhra Pradesh. The magnitude of Purushothapatnam LIS, the huge quantity of work and funds involved also shows that it was an independent project, conceived for utilization of River Godavari water for various purposes and at no point of time an attempt was made by State of Andhra Pradesh even to suggest it as part of Polavaram/Indira Sagar MIP. Had it so intended, in terms of the condition of EC granted to Polavaram/Indira Sagar MIP, PPs 216 i.e., State of Andhra Pradesh and its Authorities must have submitted an application for amendment of EC granted to Polavaram/Indira Sagar MIP, but it was never done.

313. Further, the contention that it was not an irrigation project but only for making available water for drinking, industrial purposes is also a false statement by State of Andhra Pradesh and its Authorities in as much as the very approval granted by State Government vide letter dated 14.10.2016 (Annexure 10 to OA III), para 4, makes it very clear that the Government as well as authorities knew that the project of Purushothapatnam LIS was for irrigation besides drinking and industrial use of water and it was clearly mentioned in para 4 of the said letter. In this regard we have already discussed the matter referring to other documents relating to Purushothapatnam LIS demonstrating that the project was for irrigation purposes and on various aspects the irrigation of huge land was made part of working out various angles of the project.

314. Similarly, Pattiseema LIS, though attempted to be shown to be executed for domestic and industrial purposes only but as we have already discussed that a substantial part of lifting of water was to be utilized for irrigation purposes. Annexure 6 to OA III is a copy of reply received by applicant OA III under RTI Act which clearly shows that the project in question was for irrigation requirement also and out of 74 TMC of water lifted 51.08 TMC was shown as irrigation requirement. We are sorry to observe that authorities have tried to cover up the issue otherwise though project was apparently for irrigation purposes. It was never confined to drinking and industrial purpose. PPs attempt appears to be to avoid scrutiny of the project with regard to environmental impact by Competent Authorities under the provisions of EIA 2006. 217

315. In the matter of Chintalapudi LIS also we find that the very approval letter issued by State Government on 24.10.2008 shows that the project in question was for irrigation purposes and even the expenditure sanctioned in para 4 shows Budgetary Head of Irrigation for the said project. In fact, the demand of farmers for providing irrigation facilities to cover up upland areas lying above commendable level of Polavaram/Indira Sagar MIP RMC the above project of Chintalapudi LIS was conceived and sought to be executed. Here also this project was for irrigation purposes apparently and yet an attempt was made by the authorities to prevent scrutiny of an irrigation project covering more than 10,000 Hectare land from being examined by Competent Authorities under EIA 2006. This is nothing but a wholly illegal, unauthorised act on the part of State Government and its authorities which amounts to fraud and misrepresentation, a criminal offence and also an attempt to violate environmental laws with impunity causing great damage and degradation not only to environment but to public at large also.

316. So far as KGPR Linking Project is concerned, apparently it is for the purpose of irrigation, besides other.

317. In fact, during the course of argument, Learned Senior Counsel appearing on behalf of State of Andhra Pradesh and its Authorities could not dispute that the above projects were substantially for irrigation purposes and the area of land providing irrigation under each of these projects was/is more than 10,000 hectares. Thus, Clause 1(c)(ii) of Schedule, EIA 2006 is clearly attracted.

318. We may also mention here that once element of irrigation is attracted and involved and „culturable command area‟ of land is more than 10,000 hectares, the provisions of EIA 2006 would be attracted, and 218 no other consideration or so-called distinguishing factor maybe read or added therein which is not mentioned. Here, meaning of „Culturable Command Area‟ also need be investigated. A „Command Area‟ means the area which can be irrigated (or commanded) by a canal system. There are „Gross Command Area‟ means the total area which can be irrigated by a canal system such that unlimited quantity of water is available. The „Culturable Command Area is that portion of the gross commanded area which is culturable or cultivable. Actually, these are the terms used in Canal Engineering. In fact, on behalf of State and its authorities, it could not be shown to us that the area covered by above schemes cannot be termed as Culturabe Command Area.

319. Thus, we reiterate that the only requirement to attract item 1(c) (ii) of Schedule, EIA 2006 is that the project is relating to irrigation and area covered for irrigation i.e., culturable command area is more than 10,000 hectares. Any other aspect even if present or involved will not make the provision of EIA 2006, inapplicable once the twin aspects mentioned in EIA 2006 are attracted. The explanation of State of Andhra Pradesh and its Authorities that partially completed infrastructure of Polavaram/Indira Sagar MIP was sought to be used for the above projects, would not make any difference, in our view, is irrelevant to examine whether projects in question required EC under EIA 2006, for which the only relevant aspects which have to be considered and the question needed to be asked are whether the purpose of the project is irrigation and secondly, whether the area covered for irrigation, by the project, is more than 10,000 hectares. Once both these questions are answered in affirmative, item 1(c)(ii) of EIA 2006 will be attracted and execution of such a project without undergoing the process of obtaining 219 EC under EIA 2006 would be illegal and also an offence under EP Act 1986.

320. We, therefore, answer the questions I and II formulated above relating to EC against PPs and hold that the above projects i.e., Purushothapatnam LIS, Pattiseema LIS, Chintalapudi LIS and KGPS linking project were separate, distinct and needed independent and separate EC under EIA 2006. The contrary stand taken by PPs is hereby rejected.

Question III

321. The above view taken by us leads to the situation where PPs have proceeded to execute above projects in utter defiance of mandatory statutory provisions. This situation is really disturbing. It is clear that certain Lift Irrigation Schemes were undertaken by State of Andhra Pradesh and its authorities i.e., PPs, in utter violation of environmental laws, particularly EIA 2006 read with EP Act, 1986 , Water Act, 1974 and Air Act, 1981. These schemes apparently were conceived, propagated and executed, besides other, for irrigation of land, more than 10,000 ha in each scheme, still neither EC was applied and obtained under EIA 2006 as amended from time to time, nor Consent to Establish or Consent to Operate under Water Act, 1974 and Air Act, 1981 was applied and obtained, though all these schemes had affected and were bound to affect water and air, adversely, and hence consent under Water Act, 1974 and Air Act, 1981 was also mandatory. We are more pained to find that violator of law is „State‟, which is supposed to be a model observer of law. It could not have been expected from „State‟ to violate blatantly and boldly, mandatory statutory laws, that too when the same relates to environment.

322. It is true that the objectives with which lift irrigation schemes were sought to be executed are beneficial for the people at large and society, and for betterment of living of the concerned inhabitants but it cannot be said that such objectives should have been achieved only by flouting law in an emboldened manner, showing no respect for rule of law, for upholding whereof, every government is under oath. Where State had the responsibility of implementation, execution and compliance of environmental laws, the violation thereof on its own part is shocking, painful and in our view, bound to cause disastrous results.

323. Time and again it is said that violators of environmental laws causing degradation to environment must be dealt with, strictly, sternly and with iron hands but when State and its authorities themselves are violators, situation becomes very unusual in as much as those who are responsible for execution of environmental laws, if themselves are violators, then how, who and in what manner can be expected to execute environmental laws to achieve its goal of protection and safeguard right of people to live in healthy environment.

324. The present cases are glaring example of miserable failure on the part of State Government in compliance of environmental laws.

325. In Indian Council for Enviro-Legal Action vs. Union of India , (1996)5SCC281, Court justified so called judicial activism in environmental matters and said that even though it is not the function of court to see day to day enforcement of law, since that is the function of executive, but because of non-functioning/apathy of enforcement agencies to implement law for protection of fundamental rights of people, it had no other option but to act for protection of environment and in 221 substance for protection/enforcement of fundamental right of life enshrined under Article 21 to the people of this country.

326. Friedmann in its jurisprudence has said that no law can be imposed on utterly post value community. The best supplement of a good legislation is an informed citizenry and people of country would wake up to the alarming situation of environment (Paryavaran) and take up their responsibilities, environmental legislation would become instruments of social change.

327. We need initiatives from all concerned authorities, agencies and individuals like, Government, legislature, judiciary, educational institutions, voluntary organizations and informed and educated people to create a social awareness about value and valuables of Indian tradition of respect towards nature. Law of Karma introduced law of possession, action, reaction, compensation and requisition. We create our destiny, mould future and determine character by our thoughts and deeds. What we deserve, we got now and what we shall make, receive in future. We may enjoy nature but have no right to exploit it so as to render it unavailable for such use by coming generations. It is against the principle of intergenerational equity.

328. These cases are glaring examples of the attitude and behavior of Executives, how they consider issue of environment and deal with it. Executives, under constitution, are bound to implement rule of Law, being part of governance, do not hesitate in violating and disobeying laws relating to environment whenever they get such an opportunity and many times create opportunity to violate law relating to environment. In fact, the mindset of the Executives appears to be as if issue of environment is nothing but a time and money wastage and an 222 obstruction to their so-called developmental activities. Not only they have forgotten the teachings and commands, handed down to the inhabitants of Indian subcontinent, i.e., to give respect to nature and treat it as their valuable asset, to protect and preserve in the form it is, for that will be the only way to live a long, happy and healthy life. Even International Resolutions and Conventions which have now taken shape in the last about 5 decades, are being ignored and flouted though on public platforms, speeches are given in high sounded words but not adopted in practice.

329. Fortunately, we find that judiciary is the only institution which has always responded with commitment, fortitude and conviction to protect environment whenever issues have been brought before it complaining about damage, degradation and loss to environment, in one or the other way. In the last more than four decades, Institutions of Justice have record of standing for environment in every walk of life. Whenever any attempt was made to degrade environment, judiciary has responded, taken care and adjudicated issues by giving necessary directions for preservation and protection of environment. It has also taken strict view wherever required by directing action against erring peoples, whether individual or collective, including even officials of the Government and has also not hesitated whenever required to impose heavy cost by way of environment compensation, damages etc. Though power of legislation is with Centre and State Legislatures, some statutes have been enacted with the objective of protection of environment but in-depth and hard felt concern has been shown only by judicial institutions. It has also recognised certain important principles in the matter of environment i.e., Precautionary Principle, Polluters pay, Doctrine of Trust and Principle of Burden upon Violator. Article 21 has been read as to include 223 Fundamental Right of people to live in healthy environment. Court has held that Right to Life includes right of enjoyment of pollution free water and air for enjoyment of life.

330. The issue relating to damages/compensation and further remedial or restorative action for the degradation/loss/damage caused to environment is largely governed by judicial precedents of Apex Court which has acted as a champion for protection of environment in the last almost four decades having considered various activities causing degradation/ damage to environment in multi-various manner. It would be appropriate to have a quick retrospect of such authorities which will be relevant and prove to be a useful guide as also binding precedent for answering questions relating to protection of environment, determination of environmental compensation, further direction necessary for remediation/restoration of environment and also to ensure that no further violation of environmental laws takes place.

331. In Municipal Council, Ratlam vs. Shri Vardhichand & Others , AIR1980SC1622, non-disposal of waste, stinking open drains and pollution created due to public excretion by nearby slum dwellers was brought to the notice of the court by the residents, by way of filing an application under Section 133 Cr.P.C. Magistrate held that local municipal body was responsible for cleaning and removal of waste. The matter came to Supreme Court. Upholding order of Magistrate, Court said that maintenance of public health is the statutory responsibility of Ratlam Municipality and its defence of lack of funds is of no consequence. Court issued various directions to Ratlam Municipality so as to maintain public health.

332. In Rural Litigation and Entitlement Kendra & Others vs. State of U.P. & Others , AIR1985SC652, issue of indiscriminate limestone quarrying causing ecological disturbance was brought to the notice of Supreme Court. Issues involving environment and development opposing each other were sought to be canvassed. Court preferred primacy to environment through the concept of „sustainable development‟ and further said that whosoever has caused harm to environment, has absolute liability, not only to compensate the victim of pollution, but also to bear cost for restoration of environmental degradation.

333. In Rural Litigation and Entitlement (supra), Court said that over thousands of years, man had been successful in exploiting ecological system for his sustenance but with the growth of population, demand for land has increased and forest growth is being cut down. Man has started encroaching upon nature and its assets. Scientific developments have made it possible and convenient for man to approach the places which were hitherto beyond his ken. Consequences of such interference with ecology and environment had now come to be realised. It is necessary that the Himalayas, and Forest growth on mountain range should be left uninterfered with so that there may be sufficient quantity of rain. With regard to top soil, Court said that "the top soil can be preserved without being eroded and the natural setting of the area may remain intact ...... tapping of (natural) resources have to be done with requisite attention and care, so that ecology and environment may not be affected in any serious way, (and) there may not be any depletion of water resources and long term planning must be undertaken to keep up the national wealth. It has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation".

334. Court emphasised that preservation of environment and keeping ecological balance unaffected is a task which not only governments but also every citizen must undertake. It is a social obligation and every citizen must remind to himself that it is his fundamental duty as enshrined under Article 51A(g) of the Constitution.

335. In Sachidananda Pandey vs. State of West Bengal & Others , AIR1987SC1109, dealing with the matter pertaining to environment, Court said that whenever a problem of ecology is brought before it, the Court is bound to bear in mind Article 48A and 51A(g) of the Constitution. When a court is called upon to give effect to the directive principles of fundamental duties, it cannot shirk its shoulders and say that priorities are a matter of policy and so it is a matter for the policy making authorities. The least court must give is, to examine whether appropriate considerations are gone in mind and irrelevancies are excluded. In appropriate cases Court could go further but how much further would depend upon the circumstances of the case. Court may always give necessary directions.

336. In M.C. Mehta vs. Union of India, AIR1987SC1086 (Sodium gas leak case), issue of gas leak in a chemical factory and its repercussions came to be considered. Court expanded the doctrine of liability by modifying „strict liability‟ principle enshrined in Rylands v. Fletcher to „absolute liability; and said, "enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and residing in the surrounding areas, poses an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has 226 undertaken-the enterprise must be absolutely liable to compensate for such harm and it should be not answer to the enterprise to say that it has taken all reasonable care....".

337. Court also said that larger and more prosperous enterprise, greater must be the amount of compensation payable for the harm caused on account of the activity being carried on by the industry.

338. In M.C. Mehta vs. Union of India, AIR1988SC1037 (pollution by tanneries in Ganga River), Court said that the State is under an obligation to stop exploitation of natural resources.

339. In State of Bihar vs. Murad Ali Khan, Farukh Salauddin & Others AIR1989SC1, dealing with an appeal, concerning protection of wildlife in Kundurugutu Range Forest in Bihar, Court referred to a decree issued by Emperor Ashoka in third century BC, which said "Twenty six years after my coronation, I declared that following animals were not to be killed; parrots, mynas, the arunas, ruddy- geese, wild geese, the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses... and all quadrupleds which are not useful or edible....forests must not be burned."

340. Having referred to the abovesaid, Court further observed that environmentalist conception of the ecological balance in nature is based on fundamental concept of nature as a series of complex biotic communities of which a man is an interdependent part. It should not be given to a part to trespass and diminish the whole. Larger single factor in depletion of wealth of animal life in nature has been civilized man operating directly through excessive commercial hunting or, more 227 disastrously, or indirectly through invading or destroying natural habitats.

341. In Vellore Citizens Welfare Forum vs Union Of India & Others (1996)5SCC647, Court held "In view of the Constitutional and Statutory Provisions---, "Precautionary" Principle and "Polluter Pays" Principle are part of the Environmental Laws of our country".

342. Explaining "Precautionary" principle, Court said that it includes (i) environmental issues - by the State Government and statutory bodies - must anticipate, prevent and attempt causes of environmental degradation (ii) where there are threats of serious and irreversible damage, lack of full scientific certainty should not be used as a reason for proposing cost effective measures to prevent environmental degradation (iii) the „onus of proofs‟ is on the actor or the developer/industrialist to show that the action is environmentally benign.

343. "Polluter Pays" principle was interpreted stating that absolute liability for harm to environment extends not only to compensate victim of pollution but also the cost of restoring environmental degradation. Environmental protection and prevention of pollution is primarily function of executive but unfortunately, they have failed.

344. In Tarun Bharat Sangh, Alwar vs. Union of India, AIR1992SC514, issue of mines licenses granted in Rajasthan for mining limestone or dolomite stone in Sariska Tiger Park was considered. Court issued various directions for protection of the area. It also observed that a litigation relating to environment initiated by a common person, individually or collectively, should not be treated as usual adversarial 228 litigation. The person(s) is concerned for environment, ecology and wildlife and it should be shared by government also.

345. In Virendra Gaur vs. State of Haryana , (1995)2SCC577, Court said that Government had no power to sanction lease of land vested in municipality for being used as open space for public use. The word „environment‟ is of broad spectrum which brings within its ambit "hygienic atmosphere and ecological balance". It is duty of State and every individual to maintain hygienic environment. State in particular has duty to shed its extravagant unguided sovereign power and to forge in its policy to maintain ecological balance in hygienic environment. Court further said:

346. Court also held that hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a human and healthy environment. Court further said "Therefore, there is a constitutional imperative on the State Government and the Municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the manmade and the natural environment."

347. In Indian Council for Enviro-Legal Action vs. Union of India , (1996)3SCC212, Court said that once activity carried on is hazardous or inherently dangerous, a person carrying on such activity is liable to make good, the loss, caused to any other person, by his activity, irrespective of the fact whether he took reasonable care while carrying on 229 his activity. The rule is premised upon the very nature of the activity carried on. It was held that polluting industries are absolutely liable to compensate for the harm caused by them to the people in the affected area, to the soil and to the underground water.

348. Polluter Pays Principles means absolute liability for harm to the environment, not only to compensate victims of pollution but also cost of restoring environmental degradation. Remediation of damaged environment is part of the process of „sustainable development‟. As such, polluter is liable to pay cost to the individual sufferers as well as cost of reversing the damaged ecology.

349. With respect to polluter pays principle, Court in Indian Council for Enviro-Legal Action vs. Union of India (supra), in para 65, said that any principle evolved in this behalf should be simple, practical and suit to the conditions obtaining in the country.

350. In Indian Council for Enviro-Legal Action (supra), issue of damage to mother earth by industries producing toxic chemicals was brought to the notice of the Court. It was found that water in wells and streams turned dark and dirty rendering it unfit for human consumption or even for cattle and for irrigation. Court issued various directions which included closure of industries.

351. Again issue of pollution from tanneries in rivers including river Ganga was considered by Supreme Court in Vellore Citizens‟ Welfare Forum (supra). Recognizing principle of „sustainable development‟, Court held that it is a balancing concept between ecology and development and remediation of damage to the environment is part of the process of sustainable development; precautionary principle, polluter pays principle 230 and new burden of proof have become part of environmental law of the country.

352. In M.C. Mehta vs. Kamal Nath & Others , (1998)1SCC388 a two Judges Bench had an occasion to examine, "whether natural resources can be allowed to be used or processed by private ownership for commercial purpose". The background facts giving rise to above issue are, that a news item was published in daily newspaper „Indian Express‟, dated 25.02.1996, under the caption "Kamal Nath dares the mighty Beas to keep his dreams afloat". The news item reveals that after encroachment of 27.12 bighas of land which included substantial forest land, in 1990, a Club was built in Kullu-Manali valley by a private company „Span Motels Private Limited‟, which owns a resort- Span Resorts. The land was later regularised and leased out to the company on 11.04.1994. At the time of regularisation, Mr. Kamal Nath was Minister of Environment and Forests. The swollen Beas changed its course, engulfed Span club and adjoining lawns, washing it away. Thereafter, management took steps and by using bulldozers and earth- movers, turned course of Beas by blocking flow of river just 500 meters and creating a new channel to divert River to atleast 1 km downstream. Supreme Court took suo-moto cognizance of the matter, and case was registered as W.P. No. 182/1996 under Article 32 of the Constitution. Notices were issued to the company as well as Mr. Kamal Nath. After considering the pleadings and other material, Supreme Court decided vide Judgment dated 13.12.1996 recording a finding that Motel had encroached upon an area of 22.2 bighas adjoining to the lease-hold area. Earlier, 40 bighas 3 biswas land, alongside Kullu- Manali Road on the bank of river Beas, was granted on lease to the above Motel for a period of 99 years with effect from 1.10.1972 to 1.10.2071. Besides above, the 231 motel encroached upon 22.2 bighas of land further. It also built extensive stone, cemented and wire-mesh embankments all along the river bank. Various activities undertaken by motel show a serious act of environmental degradation on its part. Motel tried to defend construction raised by it on the ground that it was to protect lease land from floods. Court held that motel interfered with natural flow of river by trying to block natural relief/spill channel of the river. With regard to river, it was observed that Beas is a young and dynamic river, runs through Kullu valley, between mountain ranges of Dhaulandhar in the right bank, and Chandrakheni, in the left. The river is fast flowing, carry large boulders, at the time of flood. When water velocity is not sufficient to carry boulders, those are deposited in the channel often blocking flow of water. Under such circumstances, the river stream changes its course by remaining within the valley but swinging from one bank to the other. The right bank of river Beas where motel is located, mostly comes under forest; the left bank consists of plateaus, having steep bank facing the river, where fruit orchards and cereal cultivation are predominant. The area is ecologically fragile and full of scenic beauty, should not have been permitted to be converted into private ownership, and for commercial gains. Having said so, Court refers to the right of public to nature and natural resources and said that public has a right to expect certain lands and natural areas to retain their natural characteristic. Court refers to the work of David B. Hunter (University of Michigan) and Professor Barbara Ward where it was stressed upon that major ecological tenet is that the world is finite. Earth can support only so many people and only so much human activity before limits are reached. Absolute finiteness of the environment when coupled with human dependency on the environment, leads to the unquestionable result that human activities 232 will, at some point, be constrained. There is a commonly recognised link between laws and social value but to ecologists, a balance between laws and values is not alone sufficient to ensure a stable relationship between humans and their environment. Laws and values must also contend with the constraints imposed by the outside environment. Unfortunately, current legal doctrine rarely accounts for such constraints, and thus environmental stability is threatened. Historically, we have changed environment to fit our conceptions of property. We have fenced, plowed and paved. The environment has proven malleable and to a large extent still is. But there is a limit to this malleability, and certain types of ecologically important resources-for example, wetlands and riparian forests - can no longer be destroyed without enormous long-term effects on environmental and therefore social stability. Need for preserving sensitive resources does not reflect value choices but rather is the necessary result of objective observations of the laws of nature. Court refers to the legal theory said to be developed in ancient Roman empire, i.e., „Doctrine of Public Trust‟ founded on the idea that certain common properties such as rivers, sea- shore, forests and the air were held by Government in trusteeship for the free and unimpeded use of general public. English law as well as American Law on the subject was also referred to and then it is said in para 34 of the Judgment that our legal system includes Public Trust Doctrine as part of the Jurisprudence. State is the trustee of all natural resources which, by nature, are meant for public use and enjoyment. Public at large is beneficiary of the sea- shore, running waters, airs, forests and ecologically fragile lands. State as a trustee, is under a legal duty to protect natural resources. These resources meant for public use cannot be converted into private ownership. Executive, acting under Doctrine of Public Trust, cannot 233 abdicate natural resources and convert them into private ownership or for commercial use.

353. Supreme Court while disposing of Writ Petition issued certain directions contained in para 39 of the judgment which included that the motel shall pay compensation by way of cost for restitution of environment and ecology of the area. Pollution caused by various constructions made by motel in river bed and banks of river Beas has to be removed and reversed. NEERI was directed to inspect the area and make an assessment of the cost, likely to be incurred for reversing damage caused to environment and ecology. Further, motel is also required to show cause as to why it be not imposed pollution fine in addition to cost for restoration of ecology which it had to pay.

354. In S. Jagannath vs. Union of India & Others , AIR1997SC811, adverse effect of shrink culture in coastal zones notified under Coastal Zone Regulation Notification dated 19.02.1991 came up for consideration and Court issued directions for closure of shrink culture industries in view of ecologically fragile coastal areas and adverse effect on environment.

355. In M.C. Mehta vs. Union of India , (1997)11SCC312 (groundwater matter), Court issued various directions including constitution of regulatory authorities for management of groundwater i.e., Central Government Ground Water Body as an authority under Section 3(3) of EP Act, 1986.

356. In Dr. Ashok vs. Union of India & Others , (1997)5SCC10, issue of use of pesticides and chemicals causing damage to the health was considered and directions were issued for constitution of a committee of 234 experts and senior officers to collect information and take suitable measures in respect of insecticides and chemicals found to be hazardous for health.

357. The activity of fishing and reservoir within areas of national park in Madhya Pradesh was considered in Animal and Environment Legal Defence Fund vs. Union of India , (1997)3SCC549. Court observed that livelihood of tribals should be considered in the context of maintaining ecology in the forest area and if there is shrinkage of forest area, State must take steps to prevent any destruction or damage to the environment, flora-fauna and wildlife keeping in mind Articles 48A and 51A(g) of the Constitution.

358. In M.C. Mehta vs. Union of India , (1997)2SCC411 (Calcutta tanneries matter), Court considered issue of discharge of untreated noxious and poisonous effluents into river Ganga by tanneries at Calcutta, and ultimately issued directions for closure of tanneries, relocation and payment of compensation to the employees.

359. In M.C. Mehta vs. Union of India , (1997)11SCC327 (hazardous industries in Delhi matter), Court considered issue of pollution caused in Delhi by various industries engaged in hazardous, noxious products etc. and issued directions for shifting, relocation, closure and utilization of land for protection of environment and payment of compensation.

360. The issue of preservation of forest was considered at length in T.N. Godavarman Thirumulpad vs. Union of India & Others , (1997)2SCC267 and series of orders were passed from time to time for protection of forest and prevention of unlawful felling of trees in forest, 235 encroachment, etc. Court expanded the term „forest‟ to include certain areas as deemed forest beyond what was defined in the Statutory Act.

361. In M.C. Mehta vs. Union of India , (1997)3SCC715 (Badkal and Surajkund lakes matter), Court considered the issue of preservation of tourist spots near Delhi at Badkal and Surajkund lakes. Applying principle of „sustainable development‟ and „precautionary principle‟, Court banned construction activities within the radius of 1 km from the lakes. Court relied on the reports of experts from National Environmental Engineering Research Institute (NEERI) and Central Pollution Control Board ( CPC B) stating that it is not advisable to permit large scale construction activities in close vicinity of lakes which would have an adverse impact on local ecology. It could affect water level under the ground and also disturb hydrology of the area.

362. In M.C. Mehta vs. Union of India , (1997)2SCC353 (Taj Trapezium matter), issue of preservation of Taj was considered and Court issued directions for changeover of coal in coal-based industries within Taj Trapezium zone, to the use of natural gas or otherwise industries should stop functioning or shift.

363. In M.C. Mehta vs. Union of India , (1998)6SCC60, issue of vehicular pollution in Delhi City was considered and several orders were issued. Court said that it is the duty of Government to see that air is not contaminated by vehicular pollution since right to clean air also stemmed from Article 21.

364. For protection of environment by making available lead-free petrol supply, directions were issued in M.C. Mehta vs. Union of India , (1998)8SCC648 (lead free petrol matter), phasing out old commercial 236 vehicles of more than 15 years old was considered and directions were issued in M.C. Mehta vs. Union of India , (1998)8SCC206 (matter of clean air in Delhi by phasing out old commercial vehicles).

365. Issue of poor efficiency of Common Effluent Treatment Plants at Patancheru, Bollaram and Jeedimetla in Andhra Pradesh was considered in Indian Council for Enviro-Legal Action vs. Union of India , (1998)9SCC580 and Court issued directions that industry should not be allowed to discharge effluent which exceeded permissible limits. Such industries should install system for release of effluents upto permissible limits. Similar directions in the context of UP industries, discharging effluent beyond permissible limits, were issued in World Savior vs. Union of India & Others (1998)9SCC247.

366. In Almitra H. Patel vs. Union of India , (1998)2SCC416, issue of urban solid waste management was considered and directions were issued.

367. Hazardous waste lying in docks/ports/ICDS and its management was considered in Research Foundation for Science vs. Union of India & Others , (1999)1SCC223. Court directed authorities to personally monitor waste and not release auction of waste unless matter is examined by Statutory Regulators as per law and appropriate directions are issued.

368. Pollution by discharge of effluents by distilleries attached to sugar industries was considered in Bhawani River Sakthi Sugar Ltd. Re:

369. The casual approach on the part of Statutory Regulators like State PCBs was examined in M.C. Mehta vs. Union of India , (1998)2SCC435 and criticizing the same, Court issued appropriate directions. The issue of pollution by hot mix plants towards supplying hot mix for runways at airports, causing pollution due to smoke emitted by them was considered in M.C. Mehta vs. Union of India , (1999)7SCC522 (Hot mix plant matter) and appropriate directions were issued.

370. The matter of providing clean drinking water for Agra town was considered in D.K. Joshi vs. Chief Secretary, State of UP , (1999)9SCC578.

371. Applying doctrine of accountability to the State and Statutory Regulators and its officers, in Pollution Control Board, Assam vs. Mahabir Coke Industry & Another, (2000)9SCC344, Court held that they are accountable for wrong advice.

372. Liberal attitude of courts in the matter of quantum of punishment in criminal prosecution for offences relating to environmental pollution was criticised in UP Pollution Control Board vs. M/s Mohan Meakins Ltd. & Others, (2000)3SCC745. It was held that courts cannot afford to deal lightly with cases involving pollution of air and water. Courts must share parliamentary concern on the escalating pollution levels of environment. Those who discharge noxious polluting effluents into streams appeared to be totally unconcerned about the enormity of injury which they are inflicting on the public health at large, the irreparable impairment it causes on the aquatic organisms, to deleterious effect it has on the life and health of animals. Court should not deal with the prosecution for pollution related offences in a casual or routine manner.

373. A major irrigation project relating to construction of dam on Narmada River came up for consideration in Narmada Bachao Andolan vs. Union of India , (2000)10SCC664. The project involved construction of a network of over 3000 large and small dams. Explaining precautionary principle and burden of proof, it was held that the same would apply to polluting project or industry where extent of damage likely to be inflicted is not known. But where effect on ecology or environment on account of setting up of an industry is known, what has to be seen is whether environment is likely to suffer and if so what mitigative steps have to be taken to efface the same. Merely because there will be a change in the environment is no reason to presume that there will be ecological disaster. Once effect of project is known, then principle of sustainable development would come into play and that will ensure that mitigative steps are taken to preserve ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.

374. Where a project is likely to effect environment, a proper study of impact on environment ought to have been conducted and once such a study is conducted and project is found in public interest, necessary for development, the principle of sustainable development requires that the measures mitigating damage to the environment must be observed.

375. Precautionary principle, in the context of municipal laws means (i). Environmental measures, required to be taken by State Government and Statutory Authorities, and they must anticipate, prevent and attack the causes of environmental degradation; (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be 239 used as a reason for postponing measures to prevent environmental depredation; (iii) The onus of proof is on the actor or the developer/industry, to show that his action is environmentally benign.

376. In Essar Oil Ltd. vs. Halar Utkarsh Samiti , (2004)2SCC392, issue with regard to laying of pipelines passing through a portion of marine national park and marine century came to be decided by a two judges Bench of Supreme Court. M/s Essar Oil Ltd., Bharat Oman Refineries Ltd. and Gujarat Positra Port Company Ltd. intended to lay pipelines to pump crude oil from a single buoy mooring in the gulf across a portion of the marine National Park and Marine Sanctuary to their oil refineries in Jamnagar District. The issue was raised by filing a Public Interest Litigation that it would adversely affect environment in particular destruction or damage to habitate, wildlife etc. Gujarat High Court restrained State Government from granting any further authorization and permission for laying down any pipeline in any part of Sanctuary or National Park. A number of appeals were filed before Supreme Court not only by oil companies but also by State of Gujarat and Gujarat Positra Port Company Ltd. Supreme Court also transferred Writ Petitions filed by Halar Utkarsh Samiti challenging order passed by State Government granting permission to Bharat Oman Refineries Ltd., pending in Gujarat High Court. Issue for consideration was "can pipelines carrying crude oil be permitted to go through the marine National Park and Sanctuary?". To answer this question, Court, besides EP Act, 1986 , also considered Wildlife (Protection) Act, 1972 (hereinafter referred to as „WL Act, 1972‟) and Forest (Conservation) Act, 1990 (hereinafter referred to as „ FC Act 1990‟). It was an admitted position that there was declaration of Jamnagar National Park as a „National Park‟, after following the procedure prescribed under WL Act, 1972. Court also 240 referred to the Notification dated 19.02.1991 issued by Central Government under Section 3 (1) , (2) (v) of EP Act, 1986 read with rule 5 of Environment (Protection) Rules, 1996 (hereinafter referred to as „EP Rules, 1996‟) declaring coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action in the landward side, up to 500 metres from the High Tide Lines and land between Low Tide Lines and High Tide Line, as „Coastal Regulation Zone‟ (hereinafter referred to as „CRZ‟) with effect from the date of Notification 19.02.1991. Notification imposes certain restrictions in CRZ but the same were modified by permitting some activities vide Notification SO 329 (E) dated 12.04.2001. Court held that all the statutes noted above, needed different clearances/permissions and are independent to each other. Clearances under each of separate statue is essential before any activity otherwise prohibited under those Acts may be proceeded with. Court observed that High Court passed order without giving opportunity to the concerned industries and hence, principles of „Natural Justice‟ were violated. But instead of remanding the matter, on this alone, it chose to decide on merits considering nature of the stakes involved, which demanded no further delay. Court held that Stockholm Declaration of 1972 is Magna-carta of our environmental laws resulting in amendments in Constitution of India in 1976, inserting Article 48 A and 51A (g). The principles containing the resolution aimed at balancing economic and social needs on one hand with environmental considerations on the other hand. However, it is also true that in one sense, development is an environmental threat. The very existence of humanity and rapid increase in pollution together with consequential demands to sustain pollution has resulted in concerting of open lands, cutting down of forest, filling up of lakes and water resources and the 241 very air which we breathe. Therefore, a balance and harmony has to be maintained in development and environment. Section 29 of WL Act, 1972, Court held, has to be construed keeping in mind the above background. There is no presumption of destruction of wildlife on account of laying of pipelines. It is a question of fact which is to be seen in the light of expert‟s opinion. State Government before granting approval under Section 29 or 35 of WL Act, 1972 should consider whether damage in respect of proposed activity is irreversible or not. If it is irreversible, it amounts to destruction and no permission may be granted unless there is positive proof of betterment of the lot of wildlife.

377. Court also observed that for preventing possible future damage, Government must publish its proposal for knowledge of the public so that the individuals or organizations, working as watchdogs to preserve environment, may be aware and put forth their views on the matter. Hence all these preventions and precautions are to be taken by State Government. It should ensure that impact on environment is transient and minimized. Court will not substitute its own assessment in place of opinion of persons who are specialist and decide question with objectivity and ability. Supreme Court set aside judgment of High Court observing that ultimate permission was granted by Government of India under WL Act, 1972 and interpretation of High Court of Section 29 and 35, being erroneous, the judgment cannot be sustained. The appeals were allowed. Court directed State Government to issue authorization under the requisite format under Section 29 and 35 of WL Act, 1972. Court also said that once State Government has exercised its powers by application of mind under Section 29 and 35, it was not open to Chief Wildlife Warden to take otherwise decision. In fact, his decision has to be in accordance with the decision of State Government.

378. In Karnataka Rare Earth & Another vs. senior Geologist, Department of Mines and Geology & Another, (2004)2SCC783, certain mining leases for quarry of granite in Government land were granted under Rule 3 of the Karnataka Minor Mineral Concession Rules, 1969. It was contrary to Rule 3A of the said Rules. The leases were challenged in Karnataka High Court in Public Interest Litigation. Writ petitions were allowed by a Learned Single judge and all grants were quashed. Intra Court Appeals were also dismissed by Division Bench. Lessees came to Supreme Court where an interim order was passed in favour of lessees on 19.11.1993. Ultimately, appeals were dismissed vide Judgment dated 18.01.1996 passed in Alankar Granite Industries vs. P.G.R. Scindia (1996)7SCC416. Lessees, who had continued with the quarry of granite, were issued notices by the Government requiring them to pay price of granite blocks quarried by them during pendency of the matter. This demand was challenged in Karnataka High Court alleging that quarry was valid, pursuant to the court‟s order, therefore demand is penal in nature and illegal. Writ petitions were dismissed by High Court upholding demand of price of granite blocks by State Government, and that is how matter came to Supreme Court in Karnataka Rare Earth (supra). It was contended that quarrying of granite was accompanied by payment of royalty, issue of transport permits, though under interim order of the Supreme Court but was lawful and bonafide. Negating the argument, Court said, demand raised by State of Karnataka can neither be said to be penalty nor penal action. It is in the nature of recovering compensation for minerals taken away without any lawful authority. Court explained underlining principle by holding "a person acting without any lawful authority must not have himself placed in a position more advantageous, then the person raising minerals with 243 lawful authority". Relying on an earlier judgment in South Eastern Coal Fields Limited vs. State of M.P., (2003) 8 SCC 648, Court said that the doctrine of „actus curiae neminem gravabit‟, would apply not only to such acts of court which are erroneous but to all such acts to which it can be held that court would not have so acted had it been correctly apprised of facts and law. The principle of Restitution is attracted. Court said "when on account of an act of a party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party, then a successful party finally held entitled to a relief, accessible to terms of relief at the end of litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of court would not have been passed." Demand raised therefore, is not penal. Recovery of price of mineral is intended to compensate for loss of mineral, owned by it and caused by a person who has been held to be not entitled in law to raise the same. There is no element of penalty involved and recovery of prices is not a penal action. It is just compensatory.

379. In Deepak Nitride Limited vs. State of Gujarat & others, (2004)6SCC402, question of determination of compensation of degradation of environment or damage caused to any concern by applying principle of „Polluter Pays‟ was up for consideration before a two Judges Bench. A Public Interest Litigation was taken in Gujarat High Court alleging large scale pollution caused by industries located in Gujarat Industrial Development Corporation, Industrial Estate at Nandesari. On the order of High Court, 252 industrial units relating to 244 chemical were also made party in the litigation besides State of Gujarat, CPC B, Gujarat Industrial Development Corporation and Nadesari Industries Association. A common effluent treatment plant (CETP) was erected in the industrial estate with contribution made by industrial units. The complaint was that CETP was not achieving required parameters laid by State PCB. On 9.05.1997, High Court directed industries to pay 1 percent of maximum annual turnover of any of the preceding 3 years, towards compensation and betterment of environment. This order was challenged in appeal before Supreme Court. High Court also directed to keep the said amount separate, by Ministry of Environment, and utilize for the work of socio- economic upliftment of people of the affected area, betterment of education, medical and veterinary facilities, agricultural and livestock etc. The imposition of 1 percent compensation was challenged on the ground that court had no power to impose penalty or fine or make any general levy unless authorized by general statute. It was also said that in any case, award of damages may be by way of restitution to the victim or restoration or restitution and restoration of ecology but for this purpose a finding has to be given that there had been degradation of environment. It was urged that there is no damage to the people in vicinity in as much as CETP had permitted a separate channel to flow effluent into river which ultimately reached the sea and would not cause any damage to the people or villages in the vicinity. After considering the rival submissions, Supreme Court, in para 6, noted that the fact that standard prescribed by State PCB were not observed by industries discharging effluent from CETP to River Mahi and ultimately the sea is not disputed. However, that by itself would not lead to the consequence that such a lapse has caused damage to the environment. Court said, that compensation awarded 245 must have broad co-relation not only to the magnitude and capacity of the enterprises but also to the harm caused by it. In a given case, percentage of turnover itself may be a proper measure because the method to be adopted for awarding damages and the basis of Polluter Pays principle has got to be practical, simple and easy in application. There has to be a finding that there has been degradation of environment or any damage caused to any of the victims by the activities of industrial units and then certainly damages have to be paid. Court remanded the matter to High Court to examine the aspect of damage to environment and/the people, as the case may be, and thereafter to decide appropriate compensation to be awarded.

380. In M.C. Mehta vs. Union of India , (2004)6SCC588 (Industries in residential area in Delhi matter), Court considered the question, "whether industrial activities in residential/non- conforming areas is permissible and what directions should be issued to end such illegal activities". Various orders were passed in 1995 and onwards resulting in closure, shifting etc., of industries, which, by an estimation were about 1,01,000, operating in Delhi in non-conforming zones but illegally permitted by Municipal Corporation of Delhi to operate in residential areas/ non- conforming areas. An application was filed on behalf of Delhi Government that closure of such a large number of industries functioning in residential/non-conforming areas may render about 7 lakh workers unemployed, causing hardship to 7 lakh families. The question considered by Court was, "whether a Government can plead such a justification for violation of law and throw to the winds norms of environment, health and safety or is it possible to help the workers even without violating law if there is a genuine will to do so". There was an attempt on the part of the concerned authority for regularization of 246 certain areas having concentration of industries. Deprecating it, Court said, "Regularization cannot be done if it results in violation of the Right to Life enshrined in Article 21 of the Constitution. The question will have to be considered not only from the angle of those who have setup industrial units in violation of the master plan but also others who are residents and are using the premises as allowed by law." Court also considered the changes proposed/made in the master plan and said, "The changes in the master plan or its norms to accommodate illegal activities not only amount to getting reward for illegal activities but also resulted in punishing the law abiding citizen." Commenting upon the authorities, Court said, "lack of action and initiative by the authorities is the main reason for the industry merely continuing illegal activities. There is total lack of enforcement of law by the authorities concerned." Rejecting an argument that industries were working with the consent of Government, Court said that an illegality would not become legality on inaction or connivance of the Government authorities. It further said "There cannot be any doubt that non-conforming industrial activities could not have commenced or continued at such a large scale in the capital of the country if the Government and the concerned authorities had performed their functions and obligations under various statutes. But such a situation cannot be permitted to continue forever so as to reach a point of no return, where the chaotic situation in city has already reached. The law- breakers, namely, the industries cannot be absolved of the illegalities only on the ground of inaction by the authorities." Court also rejected an argument on behalf of the industries that if they are ready to pay penalty, so long as the same is paid, they are entitled to continue with their activities. Court held "merely by payment of penalty, continued misuse cannot be permitted." Court condemned authorities for 247 inaction and said that growth of illegal manufacturing activity in residential areas has been without any check or hindrance from the authorities. The manner in which such large scale violations had commenced, and continued, leaves no manner of doubt that it was not possible without the connivance of those who are required to ensure compliance and reasons are obvious. Such activities result in putting on extra load on the infrastructure. The entire planning has gone totally haywire. The law abiders are sufferers. All this has happened at the cost of health and decent living of the citizens of the city violating their constitutional rights enshrined under Article 21 of the Constitution of India. Further, it is necessary to bear in mind that the law makers repose confidence in the authorities that they will ensure implementation of the laws made by them. If the authorities breach that confidence and act in dereliction of their duties, then the plea that the observance of law will now have an adverse effect on the industry or the workers cannot be allowed. Court, in the light of the facts and pleadings, issued various directions including closure of all industries, came up in residential/non- conforming areas in Delhi on or after 01.08.1990. It also constituted a monitoring committee comprising of officials of Delhi Government, Delhi Police, local bodies and said that the said committee shall be responsible for stoppage of illegal commercial activities.

381. In N.D. Jayal vs. Union of India , (2004)9SCC362, issue of safety and environmental aspects arising from Tehri Dam was considered by a 3 Judges Bench and the judgment has been rendered by majority. Looking to the retrospect of events, Court found that investigation for construction of dam at Tehri for hydel power generation commenced in 1961; Planning Commission in 1972 envisaged cost of Rs. 197.92 Crores; Government of U.P. granted administrative clearance to the project in 248 1976; In March 1980 the then Prime Minister directed authorities to undergo an in depth review of the entire project; Ministry of Science and Technology constituted an experts group which submitted an interim report in May 1980 and final report in August 1986; though 206 crores were already spent, expert committee recommended abandonment of project; recommendation was accepted by MoEF in October 1986; in November 1986 erstwhile USSR offered an administrative, technical and financial assistance on a turnover base and it revived Tehri project as recipient of such aid; and in November 1986 a protocol was signed with USSR for providing technical and financial assistance to the tune of 1000 M Rouble. Thereafter, events proceeded with pace. Government announced clearance of project in January 1987 and for execution of the project instead of irrigation department of Government of UP which had initiated, it was taken over by a joint venture company of Government of India and Government of UP called "Tehri Hydro Development Corporation" (THDC). In February 1990, Environment Appraisal Committee of MoEF recommended that project does not merit environmental clearance. However, on 19.01.1990, conditional clearance was given. At this stage, matter was brought to Court by filing Writ Petition under Article 32 of the Constitution. It was argued that once project was already decided to be abandoned, how clearance could be given subsequently and that serious consequences of implementation have not been taken note. Court referred to similar issue already considered in relation to Sardar Sarovar Project in Narmada Bachao vs. Union of India , (2000)10SCC664. It was held that once a considered decision is taken, it is for the Government to decide how to do its job. When it has put a system in place for the execution of the project, and such a system cannot be said to be arbitrary then the only role which 249 Court has to play is to ensure that the system works in the manner in which it was envisaged. It further said "decision that the questions whether to have an infrastructure project or not and what is the type of project to be undertaken and how it has be executed, are a part of policy making process and the courts are ill-equipped to adjudicate on the policy decision." Having said so, Court further said, "courts have a duty to see that in the undertaking of a decision, no law is violated and people‟s fundamental rights as guaranteed under the Constitution are not transgressed upon except to the extent permissible under the Constitution." Various specific aspects of safety and conditional clearance were examined on the basis of material which included safety aspect, and the aspects relating to conditional clearance comprising catchment area treatment, command area development etc. and lastly environmental conditions under head of catchment area, water quality maintenance, command area Bhagirathi Basin Management Authority, impact on human health, disaster management and rehabilitation, were considered and challenge was negated. Thereafter for monitoring of observance of conditions of environment clearance, Court transferred the matter to Uttaranchal High Court for further consideration.

382. In M.C. Mehta vs. Union of India & Others , (2004)12SCC118 (Mining activities on Delhi, Haryana Border and in Aravalli Hills Matter), Supreme Court passed order on 20.11.1995 directing Haryana Pollution Control Board to inspect and ascertain the impact of mining operation on Badkal Lake and SurajKund, ecologically sensitive areas, falling within State of Haryana. Report said that rock blasting and mining has caused ecological disaster in the area. It was recommended that the miners must prepare an Environment Management Plan (EMP) and it should be implemented in a time bound manner. Report also 250 recommended stoppage of mining activities within the radius of 5 Km from Badkal Lake and SurajKund. Haryana Government consequently issued an order to stop such mining within radius of 5 Km of Badkal Lake and SurajKund. Objections were filed by mining operators that such prohibition should not go beyond 1 Km radius. Supreme Court, by order dated 12.04.1996, sought opinion of NEERI and considering its report Court came to the conclusion that mining activities in vicinity of tourist resorts were bound to cause serious impact on local people. Court directed to stop all mining activities within 2 Km radius to tourist resorts of Badkal Lake and SurajKund and that mining leases within area from 2 Km to 5 Km will not be renewed without prior NOC from Haryana Pollution Control Board and also CPC B. This order is reported in M.C. Mehta vs. Union of India & Others , (1996)8SCC462. Various conditions imposed by PCB and State PCB, while issuing NOC to mining operators, were challenged and the issue of compliance of various statutory provisions was also raised in respect of areas of mining falling within the Districts of Faridabad and Gurgaon in Haryana State. Supreme Court considered effect on ecology, of mining activity carried on within an area of 5 Km of Delhi, and Haryana Border on Haryana side in areas falling within district of Faridabad and Gurgaon and in Aravalli Hills within Gurgaon District. The question formulated by Court for consideration was "whether the mining activity deserves to be absolutely done or permitted on compliance of stringent conditions and by monitoring it to prevent the environmental pollution". It was admitted that on 7th May 1992, parts of Aravalli range were declared ecologically sensitive under EP Act, 1986 . Certain activities including new mining operations and renewal of mining lease were restricted and it was said that permission would be required from MoEF. In August 1992, Forest Department of 251 Haryana had issued a notification under the Punjab Land Preservation Act 1900, banning the clearing and breaking up the land not under cultivation, quarrying of stone in the Badkal area without prior permission of the forest department. This ban was for 30 years. Further Central Government had certain powers under Notification dated 07.05.1992 which it delegated to State of Rajasthan and Haryana, vide Notification dated 29.11.1999, issued by MoEF in exercise of under power Section 23 read with 23 of EPF 1986 read with Rule 5 (4) of EP Rules of 1986. Among other issues, Court also examined circular dated 14.05.1918 issued by MoEF extending time to the units which did not apply for EC under EIA 1994 to obtain ex-post-facto EC. Court observed that statutory Notification cannot be notified by issue of circular. Further, if MoEF intended to apply the said circular to mining activities commenced and continued in violation of EIA, 1994 it would also show total non-sensitivity of MoEF to the principles of Sustainable Development and the object behind issue of EIA 1994. It also said that EIA 1994 is mandatory and its compliance before commencement of any mining operation is essential and cannot be dispensed with. Referring to its earlier judgment in Subhash Kumar vs. State of Bihar (1991)1SCC598, Court held that Right to Life is a fundamental right under Article 21 and included right to enjoyment of pollution free water and air for full enjoyment of life; natural resources of air, water and soil cannot be utilized if the utilization results in irreversible damage to environment. Court said that mining operation is hazardous in nature. It impairs ecology and people‟s right to natural resources. The entire process of setting up and functioning of mining operation requires utmost good faith and honesty on the part of intending entrepreneur for carrying on any mining activity close to township which has tendency to 252 degrade environment and is likely to affect air, water and soil and impair the quality of life of inhabitants of the area, there will be responsibility on the part of the entrepreneur. Regularity authorities have to act with utmost care in ensuring compliance of safeguard norms and standards to be observed by such entrepreneur. Court further said "where regularity authorities either connive or act negligently by not taking prompt action to prevent, avoid or control the damage to the environment, natural resources and people‟s life, health and property, the principles of Accountability for Restoration and Compensation have to be applied". When there is an equilibrium between the interest of environment and development Court said "protection of environment would have precedence over the economic interest." Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not necessary that there should always be direct evidence of harm to the environment. Considering applicability of EIA 1994 to the mining operations where only renewal was under

Cognizance was taken and notices were issued to Govt. of India and CPC B. Court observed that Right to Life under Article 21 guaranteed a person, life with human dignity which includes all aspects of life which go to make a person‟s life meaningful, complete and worth living. No one has right to claim to create noise even in his own premises which would travel beyond his precincts and cause nuisance to neighbours or others. Even Article 19(1)(a) of Constitution does not give fundamental right to create noise by amplifying the sound. While one has a right to speech, 254 others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others.

385. Supreme Court examined various kinds of noise and source of noise pollution, particularly in the special context of fire-works. Commenting upon the hazardous effect caused by high sounding fire crackers, Court observed that it not only increases ambient noise level but also contributes significantly, an increase in air pollution. Then it also examined methodology adopted in other countries for control of noise pollution and referred to the laws made in United Kingdom, United States of America, Japan, China, Australia and local laws made in Montgomery County, Maryland, USA, and statutory laws in India including NP Rules, 2000, Section 268 of I.P.C, Section 133 of Cr.P.C. and provisions in Factories Act, 1948 , Motor Vehicles Act, 1988 , Air Act, 1981, EP Act, 1986 and Law of Torts. It also referred to some judgments of High Courts namely Punjab, Calcutta, Andhra Pradesh and Madras to observe that Indian judicial opinion is uniform in recognizing Right to live in freedom from noise pollution as Fundamental Right protected by Article 21 of Constitution. Noise pollution beyond permissible limits is an in-road on that right. For observance and enforcement of right against noise pollution, Court said that an appropriate legislation is still wanting to cover the menace of noise pollution. Further, there is equal need of developing a mechanism and infrastructure for enforcement of prevalent laws. The matter was disposed of, issuing orders and directions, in general to all the States, requiring to make provisions for seizure and confiscation of equipments/instruments, creating noise beyond the permissible limits. The judgment did not deal with the correctness of Kerala High Court judgment dismissing Writ Petition 255 wherein validity of Rules 5 (3) inserted by Amendment Notification dated 11.10.2002 in NP Rules, 2000 was challenged. This was brought to the notice of Supreme Court by filing an IA. Vide order dated 03.10.2005 (reported in (2005)8SCC794), Supreme Court reopened Civil Appeal No. 3735/2005, examined correctness of High Court judgment and ultimately decided vide judgment dated 28.10.2005. Court found that power of exemption granted to the Government, permitting use of loudspeakers etc. during night hours (between 10 pm to 12 pm) or during any cultural or religious festive occasions for a limited duration, as such, cannot said to be unreasonable. Court upheld the said amendment, confirmed High Court judgment and dismissed Appeal. This judgment is reported in (2005)8SCC796.

386. In Ganapathi Metals vs. M.S.T.C. Ltd. & Others (2005)12SCC169, a question was raised that in a tender notice, there was no condition with regard to compliance of Hazardous Wastes (Management and Handling) Rules, 1989 and, therefore, there was no obligation on the part of successful bidder to follow those Rules. Rejecting this argument, Court said that the compliance of statutory rules will not depend on the party‟s agreement, even if the party is a statutory body or Government and instead statutory rules have to be complied with.

387. In Research Foundation for Science vs. Union of India & Others , (2005)13SCC186, considering further, in pending matters, namely, Writ Petition No. 457/1995; SLP(C) No. 16175/1997 and Civil Appeal No. 7660/1997, Supreme Court in its judgment dated 05.01.2005 considered the question, "how hazardous waste oil imported and lying in 133 containers at Nhava Sheva Port is to be dealt with". The Monitoring 256 Committee constituted by Court categorically found that what was imported is hazardous waste and it was imported illegally in the garb of importing lubricant oil. On behalf of the Importers, reliance was sought on the Basel Convention and standards mentioned therein but Court said that Basel Conventions are only guidelines and individual countries can provide different criteria in their national laws. National law laying stricter condition has to prevail. Imported hazardous material has, therefore, to be wasted and the manner it was to be done, left to be decided by the Government within the prescribed time. Court said:

388. On „polluter pays‟ principle, Court said, "„polluter pays‟ principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case."

389. Court also distinguished its earlier judgment in Deepak Nitrite Ltd. vs. State of Gujarat , (2004)6SCC402, observing that it was decided on its own facts and in the light of the circumstance that there was no finding of any damage to the environment. Having said so, Court also said that the decision in the Deepak Nitrite (supra) cannot be said to have laid down a proposition that in the absence of actual degradation of environment by the offending activities, payment for repair on the 257 application of „polluter pays‟ principle cannot be ordered. Court reiterated that "in India the liability to pay compensation to affected persons is strict and absolute and the rule laid down in Rylands vs. Fletcher, (1868) 3HL 330: (1861-73) ALL ER Rep 1, 626: 19 LT 220, has been held to be not applicable". Explaining judgment in Raylands vs. Fletcher (supra), Court said, the judgement was rendered in 19th sanctuary when all the developments of science and technology had not taken place. In modern day society, with highly developed scientific knowledge and technology, law has to grow to satisfy needs to fast-changing society. It has to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. Court said:

390. Court further said, "if the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads."

391. Referring to its earlier order dated 14.10.2003, in these very matters, Court said, "principle of good governance is an accepted principle of international and domestic laws. It comprises of the rule of law, effective State institutions, transparency and accountability in public affairs, respect for human rights and the meaningful participation of citizens in the political process of their countries and in the decisions affecting their lives".

392. Court said that environmental concerns are at the same pedestal as human rights, both being traced to Article 21 of the Constitution. The right to information and community participation for protection of environment and human health are also rights which flow from Article 258

21. Consequently, Court directed to destroy 133 containers having hazardous substance, as recommended by Monitoring Committee.

393. In Chhidda Singh Jat & Others vs. Suresh Chand Tyagi & Another, (2005)13SCC378, Court gave an order of simple imprisonment and fine, imposed upon Shri Gopal Krishan Yadav, Chairman of Municipality who was found responsible for non-compliance of Court‟s order to regulate a nalla which was polluting surrounding area but that was not done. There, High Court had imposed above punishment for non-compliance of the order. Supreme Court affirmed the said order and dismissed appeal of Shri Gopal Krishan Yadav and others. The above order shows that any public authority if found to violate order of the Court, regarding protection and preservation of environment, is accountable and can be imposed punishment.

394. In T.N. Godavarman Thirumulpad vs. Union of India & Others , (1997)2SCC267, various writ petitions were filed in Supreme Court involving question about conservation, preservation and protection of forest and ecology. Various orders were passed from time to time, reported in law journals. In T.N. Godavarman Thirumulpad vs. Union of India & Others , (2006)1SCC1, (order dated 23.09.2005), Court considered the question, when forest land is used for non-forest purpose, what measures are required to be taken to compensate for loss of forest land and to compensate the effect on ecology. Court recognized that development of nation undoubtedly involves industrial development but it has to be consistent with protection of environment and not at the cost of degradation of environment. Any programme, policy or vision for overall development must evolve systematic approach so as to balance economic development and environmental protection. Then Court 259 considered the question, "whether permission to use forest land for non- forest purpose and consequential loss or benefits must cause in imposing liability of payment of „Net Present Value‟ (hereinafter referred to as „NPV‟) of such diverted land, so as to utilize the amount for getting back in the long run, benefits which are lost by such diversion?" In this regard, what should be the guidelines for determination of NPV, how to compute it, can there be some exemptions etc., are the aspects, to be considered by MoEF. Referring to earlier orders, Court said that MoEF was directed to formulate a scheme providing for compensatory afforestation, whenever permission for diversion of forest land is granted under Forest (Conservation) Act, 1980 (hereinafter referred to as, the ' FC Act '). MoEF, consequently, submitted a scheme with its affidavit dated 22.03.2002, which was examined by Central Empowered Committee (hereinafter referred to as „CEC‟) along with other relevant material and submitted a report/recommendation dated 09.08.2002. MoEF, in principle, accepted recommendations of CEC and it was noticed by Supreme Court in its order dated 29.10.2002. MoEF, by Notification dated 23.04.2004, by exercising powers under sub-section (3) of Section 3 of EP Act, 1986, constituted an authority, i.e., Compensatory Afforestation Fund management and Planning Authority (hereinafter referred to as 'CAMPA'. Court suggested that in the said constitution of CAMPA, MoEF should include an expert in the field of forest and another expert in the field of forest economy development. Some other modifications/amendments in the said Notification were also recommended. Then the question, how NPV be determined, was examined in detail. Court observed that there are different factors which may count for determination of biodiversity valuation and it is for the experts in the field to make suggestion for determination of relevant factors for such computation. Environment is 260 not a State Government‟s property but a national asset. It is the obligation of all to conserve environment and for its utilization, it is necessary to have regard to the principles of "sustainable development"

which comes within Entry 20 of List III and the charge which is levied for that purpose would come under Entry 47 of List III and, therefore, Article 110 is not attracted." The NPV is not only for compensatory afforestation but for ecology. Compensatory afforestation is only a small portion, in the long range efforts, in the field of regeneration. Forest Management Planning involves a blend of ecological, economic and social systems with the economic and social sides of planning, often just as complex as the ecological sides. Rejecting contention of State Government that amount of NPV shall be made over to State Government, Court held, natural resources are not the ownership of any one State or individual, the public at large is its beneficiary. In para 78, Court said "The damage to environment is a damage to the country‟s assets as a whole. Ecology knows no boundaries. It can have impact on the climate. The principles and parameters for valuation of the damage have to be evolved also keeping in view the likely impact of activities on future generation.

395. Examining various aspects of biodiversity and loss to ecology due to any destruction to biodiversity etc., Court recorded conclusions in para 98 of the judgment, as under:

396. Consequently, Court constituted a Committee of Experts to examine various aspects relevant for determination and computation of NPV and MoEF was directed to modify its Notification dated 23.04.2004.

397. In Bombay Dyeing & Mfg. Co. Ltd. vs. Bombay Environmental Action Group & Others , (2006)3SCC434, a two judges‟ bench examined, whether development or redevelopment of lands of sick and/or closed cotton textile mills is valid and permissible or should not be allowed on the ground of damage to environment. Upholding statutory regulations, i.e., Development Control Regulation 58, as amended from time to time, made under Maharashtra Regional and Town Planning Act, 1966 , Court said that a balanced view has to be taken. Doctrine of „sustainable development‟ indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. The statute nowhere, per se, envisaged any degradation of environment. Before raising construction, if impact on ecology is examined by an expert Committee and it clears construction, unless there is anything ex-facie arbitrary, the view of experts has to be respected.

398. In M.C. Mehta vs. Union of India & Others , (unauthorised constructions and violation of laws in Delhi matter) (2006)3SCC399, Supreme Court in its order dated 16.02.2006, dealing 262 with the complaint that officers of State and Statutory Authorities are indulging in illegal activities and must be held accountable, observed:

399. In Intellectuals Forum, Tirupathi vs. State of A.P. & Others , (2006)3SCC549, a complaint was raised, in writ petitions filed before Andhra Pradesh High Court, that there is a systematic destruction of percolation, irrigation and drinking water tanks in Tirupathi town, alienation of Avilala tank bed land to Tirupathi Urban Development Authority and AP Housing board for housing purposes. The writ petitions were dismissed on the ground that the activities were in public interest in view of growing population in the town and need of housing accommodation for the people. In appeal, Supreme Court formulated following four questions of law:

400. Referring to the responsibly of State to protect environment and the principle of sustainable development, Court said, "merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation."

401. Considering the facts that ground realities are different, huge amount has been spent and natural resource lost is irreparable and beyond the power of Court to rectify, best way was to accept findings of the Committee which suggested some rectification but with change in quantum of the area. Report was accepted by the authorities. Thus Court decided matter on the peculiar facts of the case but issued separate orders in respect to two tanks namely, Peruru tank and Avilala tank, restraining any further construction in the area and to take other steps for avoiding/preventing any loss/damage to the said tanks.

402. In Mullaperiyar Environmental Protection Forum vs. Union of India & Others , (2006)3SCC643, a three judges‟ bench of Supreme Court considered the question about safety of the dam if water level is raised beyond existing level of 136 ft. The aforesaid reservoir is surrounded by high hills on all sides with forest and is a sheltered reservoir. Concerned authorities intended to increase its height to 142 ft. from 136 ft. The dam/reservoir was serving two States, i.e., Tamil Nadu and Kerala, in terms of an agreement in 1970. The proposed increase in height by State of Tamil Nadu was objected by State of Kerala also. The dam is an old one having been constructed in 1895. Various aspects 264 have been considered. In respect of FC Act, 1980 , Court said that strengthening work of existing dam cannot be termed as non-forestry activity and there is nothing to show that increase in water level will affect flora and fauna. Experts submitted report that apprehension of adverse impact on environment and ecology is unfounded and their opinion was accepted by Supreme Court, in the absence of any material to contradict it.

403. In Akhil Bharat Goseva Sandh vs. State of A.P. & Others with Umesh & Others vs. State of Karnataka & Others , (2006)4SCC162, M/s. Al Kabeer Exports Limited, a company engaged in the business of processing meat, mainly for export purposes, applied for permission to construct a factory and other buildings in village Rudraram, Medak district, Andhra Pradesh. On 24.03.1989, Gram Panchayat concerned, issued No Objection Certificate (hereinafter referred to as, „NOC‟) and ultimately permission was granted by State Government to run slaughter house, on the selected site, on 29.06.1989. Andhra Pradesh Pollution Control Board also issued NOC under Water Act, 1974 . The company started construction work but thereafter an order was issued by Executive Officer of Gram Panchayat suspending permission, granted for construction of factory and other buildings. Some other organizations also opposed establishment of slaughter house. Initially company filed writ petition but subsequently it was withdrawn and a revision was filed before State Government which was allowed on 15.09.1990. This order was challenged by some organizations and individuals in writ petitions before High Court, wherein an interim order was passed and revisional order was stayed. Company filed writ appeals; wherein single judge‟s order was stayed. The writ petitions were disposed of by order dated 16.11.1991, wherein authorities were directed to examine the matter 265 with regard to water, air and environment pollution etc. after giving opportunity to all concerned parties and thereafter, pass appropriate order. Consequently, State Government constituted a Committee, i.e., Krishnan Committee which submitted its report that after taking some safeguards/steps and proper monitoring by State PCB, pollution of air and water can be kept within reasonable limit but it concurred with the objections of Food and Agriculture Department, with regard to depletion of cattle wealth. However, it gave recommendation to allow establishment of slaughter house with certain conditions. When final decision on Committee report was pending at the level of the Government, a writ petition was filed by two Environmentalists seeking a direction to restrain Hyderabad Metropolitan Water Supply and Sewerage Board from supplying water to slaughter house. An interim order was passed, therein, by High Court. Some other writ petitions were filed challenging NOC granted by APPCB and also permission granted for running of slaughter house. The writ petitions were dismissed, giving rise to five appeals in Supreme Court. Among various questions, the issue with regard to sanction of grant of consent by APPCB was examined, whether it was in accordance with law or not. Court took the view that function of company would not result in depletion of buffalo population in the Hinterland of the abattoir and reliance placed on the judgment in Mohd. Hanif Quareshi & Others vs. The State of Bihar, (1959SCR629), does not help the organizations since in that case there was a complete ban on slaughter of old cattle which was struck down. Further, judgment in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others , (2005)8SCC534, also did not help since there was a finding that adequate quantity of cattle feed resources was available and, therefore, the question of total ban on slaughter of old cattle does not arise. In 266 State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others (supra), Court did not hold, that permitting slaughter of bovine cattle by itself is unconstitutional. With regard to grant of consent, Court observed that matter was examined by experts under the statutes and thereafter consent has been granted, therefore, in the absence of anything to show that their satisfaction was arbitrary or illegal, no interference would be called by the Court. Moreover, grant of NOC was challenged on the ground that information was not disclosed but it was repelled observing that no member of public has any legal right to demand any information from PCB prior to issue of NOC. Challenge to NOC on the ground that PCB was not properly constituted was also repelled and for this purpose Court relied on Section 11 of Water Act, 1974, that if there is some defect in the composition of PCB that would not validate consent order.

404. In T.N. Godavarman Thirumulpad vs. Union of India & Ors. , (2006)5SCC28 (Order dated 10.04.2006), an issue raised by Mr. Deepak Agarwal through an Interlocutory Application regarding allotment of land to a company for setting up of a coal washery plant on the ground that it was forest land was examined. Court referred to its earlier order in T.N. Godavarman Thirumulpad vs. Union of India & Others (1997)2SCC267, wherein Court had held, " FC Act, 1980 , 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 FC Act. The term „forest land‟ would also include any area recorded as forest in the Government record irrespective of the ownership." 267

405. Before proceeding on merits, Court observed that if the person filing a PIL is found not to be a bona-fide pro bono litigant, Court has to decline its judicial scrutiny at the behest of that person. However, only in exceptional cases, it may proceed to examine the matter on merit. With regard to Deepak Agarwal, Court clearly recorded its findings that he is nothing but a name lender, application lacks bonafide and has a camouflage of PIL. Thereafter, Court examined issue on merits since it was with regard to forest land and found that land in dispute was not a forest land. Application was dismissed with cost of ₹ 1,11,000/- (Rupees One lakhs) awarded against Deepak Agarwal.

406. In T.N. Godavarman Thirumulpad vs. Union of India & Others , (2006)5SCC47 (Order dated 10.04.2006), Court considered whether fish tanks constructed inside Kolleru Wildlife Sanctuary would be permissible or not. Central Empowered Committee had issued directions for demolition of all fish tanks constructed inside Kolleru Wildlife Sanctuary which included Kolleru lake area extended over 901 sq. km. The lake is largest shallow freshwater lakes in Asia, located between delta of Krishna and Godavari rivers in State of Andhra Pradesh. It is serving as a natural flood, balancing reservoir for the two rivers. It receives water from 67 inflowing drains and channels. However, only 308 sq. km area was declared as wildlife sanctuary. On account of blockage of free flow of water into the lake caused by encroachers, resulting in submergence of delta facility in upstream area, order was issued by CEC for demolition of all fish tanks. Court observed that interest of fishermen for having traditional method of fishing was not obstructed but they were not allowed to raise any construction and also not using pesticides and chemicals for their traditional agriculture. In the circumstances, direction for removal of encroachment has not affected any right of the 268 fishermen. When a bund is found in a sanctuary or a lake it seeks to encapsulate an area which in turn obstructs free flow of water to lake bed area, formation of bund reduces retention capacity of lake. This formation, if allowed, would destroy lake and all commercial activities would also destroy ecology which is prohibited under Section 29 of Wild Life (Protection) Act, 1972. Court further observed that oil cakes used as manure also pollute Sanctuary. It is true that there are other effluents which also pollute the lake hence, destruction of fish tanks is justified. Court also made it clear that use or transportation of inputs for pisciculture shall be stopped immediately.

407. In Karnataka Industrial Areas Development Board vs. C. Kenchappa and Others , (2006)6SCC371, acquisition of agricultural land for industrial purposes was challenged on the ground of adverse impact on environment, depravation of villagers of their fertile agricultural land etc. for setting up of an industrial establishment by Gee India Technology Centre Pvt. Ltd. Karnataka Industrial Areas Development Board sought to acquire land which was challenged in writ petition. The writ petition was allowed to the extent of acquisition of land which was reserved for grazing cattle, agricultural and residential purpose. High Court also directed that whenever there is an acquisition of land for industrial commercial or non -agricultural purpose, except of residential purposes, authorities must leave one kilometre area from the village limits as a free zone or green area to maintain ecological equilibrium. Consequently, acquiring body, i.e., Karnataka Industrial Areas Development Board came in appeal. Supreme Court examined in the light of several decades continuous degradation resulting in continuous depletion of environment and observed that the entire world is facing a serious problem of environmental degradation due to 269 indiscriminate development. Industrialization, burning of fossil fuels and massive deforestation are leading to degradation of environment. Court said that if we carefully evaluate entire journey of judicial pilgrimage from the decade of 1960 till 2006, one would find that in the decade of 1960, hardly anyone expressed concern about ecology and environment. In the decade of I970, a serious concern about degradation of ecology and environment was articulated and it was realised that for a civilized world both development and ecology are essential. The concern was examined in detail later leading to the principle of sustainable development. Court allowed appeal and disposed the matter by issuing directions which included that "in future, before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment."

408. In Susetha vs. State of Tamil Nadu & Others (2006)6SCC543, Court said that natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if it has fallen in disuse. The same principle cannot be applied in relation to artificial tanks.

409. In T.N. Godavarman Thirumulpad (45) vs. Union of India & Others , (2007)15SCC288 (order dated 23.11.2001) passed in (IA No. 295 and 664 in WP (C) No. 202 of 1995), one of the aspects considered by Court is use of money received by various Governments, for compensatory afforestation, from user agencies to whom permissions were granted for using forest land, for non-forest purposes. Court found that substantial amount released was not used by respective 270 Governments. Hence Court directed MoEF&CC to formulate scheme placing responsibility upon the user agency to take steps for compensatory afforestation, from the amount it ought to have paid to the concerned State Government, and for this purpose, State Government must provide land either at the expanse of user agency or State Government, as decided by the concerned State Government. The scheme must ensure that afforestation takes place as per the permission granted, and there should be no shortfall in respect thereto.

410. In T.N. Godavarman Thirumulpad (39) vs. Union of India & Others , (2007)15SCC273 (order dated 22.09.2000) passed in (IA No. 424 in WP (C) No. 202 of 1995), Court considered the issue of permission of felling of trees vis-a-vis regeneration. Court noticed, when permission for felling of trees, subject to regeneration is granted, felling of trees part is executed but other part i.e., regeneration, used to remain unimplemented. Court observed that both activities must co-exist. There cannot be felling without regeneration because that will cover a period of time, and if not observed rigorously, may result in vanishing of forest. If there is shortfall with regard to regeneration, and felling continue, it would result in depletion of forest cover. The authorities responsible under law, must ensure that no further depletion of forest cover takes place, instead, targets for increase in forest cover are met. In other words, regeneration should commensurate with the felling. Further, regularization of encroachment in forest area will not be made unless conditions found necessary for regularization are first fulfilled/observed/complied. Court said that eligible conditions for permission to grant regularization of encroachments should be fulfillment beforehand of conditions under the guidelines specially in regard to compensatory afforestation.

411. In Research Foundation for Science Technology and Natural Resource Policy vs. Union of India & Others , 2007(15)SCC193 (order dated 11.09.2007 in IA 34 of 2006 In WP (C) No. 657 of 1995), Court considered the issue, "whether permission for dismantling of ship "Blue Lady" at Alang, Gujarat should be granted or not". The ship, a passenger liner, built in France in 1961, was a steam turbine driven vessel, registered as a Barge under the flag of Bahamas. The ship was beached on 15.08.2006/16.08.2006, off the Alang coast which is located on the west coast of Gujarat. Alang is the largest ship recycling yard and one of the choicest ship-scrapping destination for ship owners around the world. Observing that ship breaking is an industry, Court said that when apply principle of 'sustainable development', one has to keep in mind concept of development on one hand and concepts like generation of revenue, employment and public interest on the other hand and here the principle of proportionality comes in. Court examined report of Technical Experts Committee and said that suggestions made by the said Committee, must be observed. It will satisfy the concept of "balance". Permitting Ship breaking, Court also observed that recycling is a key element of sustainable development.

412. In State of Madhya Pradesh & Others vs. Madhukar Rao , (2008)14SCC624 (order dated 09.01.2008) in (Civil Appeal Nos. 5196 to 5200 of 2001, SLPs (C) Nos. 2095 & 8024 of 2002 and Criminal Appeal No. 487 of 2006), the question for consideration was, "whether a vehicle or vessel etc., seized under Section 50(1)(c) of Wild Life (Protection) Act, 1972 (hereinafter referred to as „Act 1972‟) will put beyond power of Magistrate to direct its release during pendency of trial, in exercise of powers under Section 451 of CrPC 1973. Court held that Section 50 and other provisions in Chapter VI of Act 1972 would not 272 exclude application of any provision of CrPC . Section 51(4) expressly excludes application of Section 360 of CrPC and provisions of Probation of Offenders Act to persons eighteen years or above in age. But it does not mean that Section 50 of Act 1972 in itself or taken along with the other provisions under Chapter VI, constitutes a self-contained mechanism so as to exclude every other provision of the Code. Court, therefore, answered the question stating that Section 50 of Act 1972 and amendments made thereunder, do not in any affect magistrate power to make an order of interim release of the vehicle under Section 451 of CrPC.

413. In T.N. Godavarman Thirumulpad (57) vs. Union of India & Others , (2008)16SCC337 (order dated 29.10.2002), question of encroachment of forest area and liability of compensation was examined. There was some dispute with regard to boundary of forest but for this purpose, Court held that the map drawn by Survey of India must be accepted as it is a body under duty to prepare plan after carrying out surveys hence Survey Report of Survey of India, have to be accepted. Further, it held that all encroachers into forest land have to be evicted. Court said:

414. Court also directed, that encroachers are liable to compensate for the losses caused due to encroachments, especially when land encroached upon has been utilized for commercial purposes. Taking a lenient view, Court observed that if encroachers voluntarily vacate by the prescribed date, they may not pay compensation but if they continue to remain in possession, they will have to pay Rs. 5 lakhs per hectare per month as compensation which shall be used for forest protection and 273 reutilization. Court also imposed a ban upon mining activity in Aravalli hills specially in the parts which have been recorded as forest area or protected under EP Act, 1986 . This order was subsequently modified by order dated 16.12.2002 ((2008)16SCC401) and permission/approval under Forest Conservation Act, 1989 and EP Act, 1986 was granted.

415. In Gujarat Pollution Control Board vs. Nicosulf Industries & Export Pvt. Ltd. & Others , (2009)2SCC171, (order dated 04.12.2008) in (Criminal Appeal No. 9 of 2002), question was, "whether the complainant i.e., the officer of State PCB had authority to file complaint or not". Interpreting Section 49 of Water Act, 1974, Court said that it required State Board to file a complaint or to authorize any of its officers to file complaint. The authorization has to be by State Board. There is no difference between power to sanction a complaint or power to authorize the complaint in as much as when a sanction to file a complaint is given in law, it amounts to authorize to file the complaint.

416. In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Another , (2009)2SCC147, (order dated 12.12.2008) in (Criminal Appeal No. 2019 of 2008), order of High Court of Judicature at Allahabad, Lucknow Bench, quashing complaint, filed by State PCB under Section 44 of Water Act, 1974 was challenged. High Court quashed proceedings on the ground that there was no material on record to show that Dr. Bhupendra Kumar Modi, at the relevant time, was incharge and responsible to the company for conduct of its business. The only question considered by Court in Appeal, was, "whether the view taken by High Court is justified or not". Court did not find the view of High Court to be correct in view of the averments made in the complaint, read with Sections 25 , 26 , 44 and 47 of Water Act, 1974 and hence 274 allowed Appeal and set aside the order. Before Supreme Court, an argument was raised that the proceedings commenced in 1985 and long time has passed but rejecting this, Court said that lapse of long period cannot be a reason to absolve respondents from the trial, considering nature of the matter involving public health. If it is ultimately proved that the act of accused has affected public health, Court cannot afford to deal lightly with cases involving pollution of air and water. It said, "The message must go to all concerned persons whether small or big that the courts will share the parliamentary concern and legislative intent of the Act to check the escalating pollution level and restore the balance of our environment. Those who discharge noxious polluting effluents into streams, rivers or any other water bodies which inflicts (sic harm) on the public health at large, should be dealt with strictly de hors to the technical objections. Since escalating pollution level of our environment affects on the life and health of human beings as well as animals, the courts should not deal with the prosecution for offences under the pollution and environmental Acts in a causal or routine manner".

417. In Fomento Resorts & Hotels & Another vs. Minguel Martins & Others , (2009)3SCC571 (order dated 20.01.2009) in (Civil Appeal No. 4154 of 2000), a private company approached State Government for acquisition of land comprised in Survey nos. 788, 789, 803, 804, 806 and 807 of Village Taleigao, Dona Paula for construction of Beach Resort Hotel Complex by highlighting its benefits. Acted thereupon, acquisition proceedings were initiated. Acquisition proceeding were challenged but in the meantime hotel project was completed and commenced function. Goa Bench of Bombay High Court allowed writ petition and quashed acquisition notification by judgment dated 26.06.1984. The judgment was reversed in appeal by Supreme Court in Fomento Resorts and Hotels Ltd. vs. Gustavo Renato Da Cruz Pino , (1985)2SCC152 and matter was remitted to High Court. Subsequently, parties compromised and writ petition was withdrawn from High Court. The hoteliers entered into an agreement with the Government. The hoteliers thereafter, applied 275 for extension of hotel building and this issue was raised again in a writ petition filed in High Court which was allowed by observing that extension of hotel building was impermissible. The issue of acquisition was also raised. Supreme Court formulated it as issue one and answered in negative in para 35 of the judgment. Next question was, whether public access to beach, available through survey no. 803 before acquisition, could have been restricted by hoteliers. Court refers to public trust doctrine and said that there is an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof. In para 54 of judgment, Court said, "The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets".

418. Elaborating it, in para 55, Court said, "Public Trust Doctrine is a tool for exerting long-

established public rights over short-term public rights and private gain. Today, every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people‟s rights and the people‟s long term interest in that property or resource, including down-slope lands, waters and resources".

419. Referring to ancient Indian heritage and culture which was in harmony with nature, Court said:

Sages and Saints of India lived in forests. Their preachings contained in Vedas, Upanishadas, Smritis etc. are ample evidence of the society‟s respect for plants, trees, earth, sky, air, water and every form of life. It was regarded as a sacred duty of every one to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by their parents and grandparents about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora fauna and every species of life".

420. Court reiterated that natural resources including forest, water bodies, rivers, seashore etc. are held by State as a trustee on behalf of people and specially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. State cannot transfer public trust properties to a private party. If such a transfer interferes with the right of the public, Court can invoke public trust doctrine and take affirmative action for protecting right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural eco-systems. The questions, were answered observing that access road cannot be obstructed. Court also upheld the view taken by High Court that extension of hotel building was illegal and, therefore, it has to be demolished.

421. In Nature Lovers Movement vs. State of Kerala & Others , (2009)5SCC373 (order dated 20.03.2009) in (Civil Appeal No. 2116 of 2000), Section 2 of Forest (Conservation) Act, 1980 (hereinafter referred to as „ FC Act, 1980 ‟) vis-a-vis Kerala Forest Act, 1961 were under consideration. Court held that FC Act, 1980 enacted by virtue of list III Seventh Schedule and contains non obstante clause. Section 2 hence has over-riding effect. The purpose of Act is conservation of forest and to prevent depletion thereof. The Act is applicable to all forests irrespective of the nature of ownership or classification thereof. After 25.10.1980 i.e., 277 date of enforcement of FC Act, 1980 , no State Government or other authority can pass an order or give a direction for de-reservation of reserved forest or any portion thereof or permit use of any forest land or any portion thereof for any non-forest purpose or grant any lease, etc. in respect of forest land to any private person or any authority, corporation, agency or organization which is not owned, managed or controlled by the Government. Further user of forest land for non-forest purpose prior to enforcement of FC Act, 1980 will not be a ground to explain tenure of such activity by way of renewal etc.

422. In M.C. Mehta vs. Union of India & Others , (2009)6SCC142 (Aravalli hills range mining matter) (order dated 08.05.2009), Court said that the Aravalli is the most distinctive and ancient mountain chain of Peninsular India, mark the site of one of the oldest geological formations in the world. Due to its geological location, desertification is stopped and it prevents expansion of desert into Delhi. However, Court noticed regular mining activates in violation of law particularly, environmental laws and norms. Since mining was banned by Supreme Court, applications were filed for modification and seeking permission. Disposing all applications, Court said that since statutory provisions have not been complied with, all mining operations in Aravalli hill range falling in State of Haryana within the area of approximately 448 sq. kms. in Districts of Faridabad and Gurgaon including Mewat shall remain stopped till Reclamation Plan duly certified by State of Haryana, MoEF and CEC is prepared with law.

423. In Tirupur Dyeing Factory Owners Association vs. Noyyal River Ayacutdars Protection Association and others , (2009)9SCC737 (order dated 06.10.2009 in Civil Appeals No. 6776 of 278 2009 with 6777 of 2009), Public Interest Litigation was filed by Noyyal River Ayacutdars Protection Association (hereinafter referred to as „Association‟) seeking directions for preservation of ecology and for keeping Noyyal river in Tamil Nadu free from pollution. It was alleged that large number of industries working in Tirupur area had indulged in dyeing and bleaching works and discharging industrial effluents into river causing water pollution to the extent that river water was neither fit for irrigation nor potable. It had also affected Orthapalayam reservoir and other tanks and channels of Noyyal river. Court directed to set up CETP with zero liquid discharge trade effluents. Court also directed the industries association to pay an amount compensating damage to ecology for cleaning and desilting operations and for remediation. In Appeal, Supreme Court initially directed industries association to deposit Rs. 25 crores and while deciding the matter finally, it observed that there has been unabated pollution by members of industries association. They cannot escape responsibility to meet out the expenses of reversing the ecology. They are bound to meet the expenses of removing the sludge of the river and also for cleaning the dam. The principles of "polluters- pay" and "precautionary principle" have to be read with the doctrine of "sustainable development". It becomes the responsibility of the members of the appellant Association that they have to carry out their industrial activities without polluting the water. Court also held that a number of farmers have suffered because of pollution caused by industries. Farmers could not cultivate any crop in the land and industries have to pay to the farmers also. Court also directed State PCB to ensure that no pollution is caused, giving strict adherence, to the statutory provisions. 279

424. In Tirupur Dyeing Factory Owners Association vs. Noyyal River Ayacutdars Protection Association & Others , (2009)9SCC737, Court said:

425. In T.N. Godavarman Thirumulkpad v. Union of India & Others , (2006)13SCC689 (order dated 17.10.2016) in (IAs No. 1156, 1192, 756, 1463, 1501 and 1532 in WP(C) No. 202/1995), a complaint was made that in Master Plan, 1962 certain area was earmarked/identified as green area but changing user to urban area under latter Master Plan, i.e., 2001, Delhi Development Authority (hereinafter referred to as „DDA‟) has proposed development of International Hotels Complex on such land, area 315 ha, situated in Vasant Kunj. Court constituted a Committee to examine environment impact assessment of the area and stopped constructions till submission and consideration of report by the said Committee. Latter stand was taken before Supreme Court that out of 315 ha only 220 ha would be used for commercial construction purposes. Committee submitted its report in which it observed that DDA has not exercised adequate environment precaution based on sustainable environmental management approach. It also pointed out that many proponents have raised constructions in a very environmentally unsound manner and DDA had permitted a higher FAR. As damage control by strict implementation of effective Environment Management Plan and resource conservation measures, Committee made certain 280 suggestions/recommendations. Commenting upon the role of DDA, Court said that it ought to have acted with more transparency. Thereafter, Court directed MoEF&CC to consider the stand taken by all the parties concerned and take a decision in the light of the suggestions made by Committee. It also directed MoEF&CC to decide, what remedial measures including imposition of such amount as cost, can be taken.

426. In Research Foundation for Science vs. Union of India & Another , (2007)8SCC583, (order dated 06.09.2007) in (WP(C) No. 657/1995 with SLP(C) No. 16175/1997, Civil Appeal No. 7660/1997), Court in the matter of ship breaking, examined report of High Powered Committee and noticing the same in para 9 of the order, directed Government of India to formulate a comprehensive code incorporating recommendations and to make the same operative until concerned statues are amended in line with the recommendations. Court also said that till such statutes are enacted, the recommendations shall be operative by virtue of its (Supreme Court) order, aforesaid.

427. In Parthiban Blue Metal & Others vs. Member Secretary, Tamil Nadu Pollution Control Board & Others , (2007)13SCC197, (order dated 01.02.2007) in (Civil Appeal No. 411/2007) issue of distance of stone crushers from residential area was considered. Various stone crusher units were operating in village Trisoolam, Kanjipuram district, Tamil Nadu prior to 1974. After enactment of Water Act, 1974 and Air Act, 1981, unit operators applied for consent but relying on Rule 36(1) of Tamil Nadu Minor Mineral Concession Rules, 1959, as amended, prohibiting quarrying within a radial distance of 500 metres from inhabited site, State PCB issued notices requiring proponents to shift to alternative sites. Writ Petitions were filed in Madras High court stating 281 that units were operating since 1972 and at that time area was non- urban zone. Writ Petitions were dismissed and, then came to Supreme Court. In the matter of distance, Court did not interfere and said that since there is some dispute about the actual distance, the same be examined and for this purpose remanded the case to High Court.

428. In Suresh Estates Private Limited & Others vs. Municipal Corporation of Greater Mumbai & Others , (2007)14SCC439 (order dated 14.12.2007) in (Civil Appeal No. 5948/2007), a three judges‟ bench, besides others, also considered the question, "whether Coastal Regulation Zone (hereinafter referred to as, „CRZ‟) will prevail over the provincial municipal laws or vice versa". The Notification dated 09.02.1991 issued under Sections 3(1) and 3(2)(v) of EP Act, 1986, declaring coastal stretches as CRZ and making regulations for regulating activates in such zone was considered. Court held that the word „existing regulations‟ means those which were enforced on the date when CRZ Notification came into force, i.e., 19.02.1991. CRZ Notification referred to the structures which were in existence on the date of Notification and did not talk of future provisions. After enforcement of CRZ Regulations, building activity permitted under that notification only shall be applicable and any future variation would not have any impact. Court said that in view of Section 3 of EP Act, 1986, any order/notification issued thereunder shall prevail over provisions of any other law which will also include MRTP Act, 1966 and Municipal laws.

429. In T.N. Godavarman Thirumulpad (104) vs. Union of India & Others , (2008)2SCC222, (order dated 23.11.2007) in (IAs No. 1324, 1474 and 2081-82 in WP(C) No. 202/1995), an application was filed on behalf of M/s. Vedanta Alumina Ltd. seeking clearance for use of 282 723.343 ha of land including 58.943 ha of reserve forest land in Lanjigarh Tehsil of Kalahandi District for setting up alumina refinery. Court proposed certain conditions which if agreeable, it would consider grant of clearance but in the context of principle of sustainable development vis-a-vis mining activities, Court said: "while applying principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of future generations to meet their own needs is sustainable development--it is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity." Court further said that "mining is an important revenue-generating industry" but Court cannot allow country‟s national assets to be placed into the hands of companies without a proper mechanism in place and without ascertaining credibility of the user agency.

430. In A. Chowgule and Company Limited vs. Goa Foundation India & Others , (2008)12SCC646, (order dated 18.08.2008) in (Civil Appeal No. 5180/2001), issue of "prior approval", in the context of FC Act, 1980 read with Forest (Conservation) Rules, 1981, was considered. M/s. A. Chowgule & Co. Ltd. (hereinafter referred to as, „proponent‟) was engaged in mining, processing and export iron ore. Certain land was allotted to the proponent for establishment of 100% export-oriented unit in Sanguem Taluka in South Goa district. No Objection Certificate was issued by State PCB on 15.04.1991. The allotted land included some part which was claimed to be forest land but for permitting non-forest activities in forest land, no prior approval was obtained from MoEF&CC. A Writ Petition was filed in Goa bench of Bombay High Court wherein 283 lease agreement dated 01.11.1989 was quashed. For holding what forest is, reliance was placed on Supreme Court judgment in T.N. Godavarman Thirumulkpad vs. Union of India , (1997)2SCC267. Court examined Section 2 of FC Act, 1980 and Rules framed thereunder and said that under the provisions, "prior approval" is required for diversion of any forest land and its use for some other purpose. It also said that before promulgation of Act, a lease may be granted as per the then law but for renewal the provisions of subsequent enactment would have to be followed. Referring and relying on earlier decisions in Ambica Quarry Works vs. State of Gujarat , (1987)1SCC213; Rural Litigation and Entitlement Kendra vs. State of U.P. (Supra); T.N. Godavarman Thirumulkpad vs. Union of India , ( 1997)2SCC267 and M.C. Mehta vs. Union of India , (2004)12SCC118, Court held "after the coming into force of the Act, the renewal of a pre-existing mining lease in a forest area can be granted only if the requirements of Section 2 are satisfied." Considering the arguments that proponent was willing to reforest in identical area if the lease is allowed to be effectuated, Court examined as to what is implied by the term „afforestation‟ or „re- forestation‟. It is said "is it merely the replacement of one tree with another or does it imply something a little more complex? "Reforestation is the restocking of existing forests and woodlands which have been depleted, with native tree stock, whereas afforestation is the process of restoring and recreating areas of woodlands or forest that once existed but were deforested or otherwise removed or destroyed at some point in the past"."

431. Court also noticed its experience that re-forestation or afforestation carried out in India does not meet the fundamentals and planting of new trees to match the numbers removed is too simplistic and archaic a solution, as in the guise of compensatory replantation, local varieties of 284 trees are being replaced by alien and non-indigenous but fast-growing varieties such as poplar and eucalyptus which make up the numbers but cannot satisfy the needs of our environmental system. Court cautioned that one must borne in mind that both re-forestation and afforestation envisage a resurrection and re-plantation of trees and other flora similar to those which have been removed and which are suitable to the area in question. Court further elaborated its experience in the light of disappearance of different kinds of birds due to cutting of large scale of trees for widening of roads. In paragraphs 25 and 26 of the judgment, Court said:

432. The widening of roads has destroyed shelter for birds where thousands of birds used to nest and bred and it has resulted in virtual 285 annihilation of the bird life as well. Court, therefore, dismissed appeal of the proponent and said that any subsequent approval will not make good the violation of environmental laws, already committed.

433. In News Item Published in Hindustan Times Titled "And Quiet Flows The Maily Yamuna", In Re, (2009)17SCC708 (order dated 12.04.2005), Supreme Court continued to consider the issue of pollution of river Yamuna, deprecated authorities for their inaction/negligence and said, "It is for the Government to implement the laws. It is no answer to say that the master plan, building bye-laws and other laws were observed in breach and the authorities were silent spectators. It seems that there was connivance of officers/officials concerned without which it is quite difficult for such large-scale unauthorized acts to take place".

434. In para 13 of the order, Court referred to its earlier order dated 10.04.2001 wherein it has said:

435. Court recorded its concern in para 16 of the order, and said:

436. In News Item Published in Hindustan Times Titled "And Quiet Flows The Maily Yamuna", In Re, (2009)17SCC545 (order dated 14.02.2006), Court noticed attempt of the authorities in placing alleged 286 scheme for improvement of water quality, without any clarity, and in para 5 said:

437. Further in para 7, Court said, since State/authorities are not in a position to make available the basic services on the pretext of server limitation, there shall be no regularization of unauthorized colonies. Court clarified that regularization should be made only if it is possible for the respondents to make available the basic services.

438. In State of Uttaranchal vs. Balwant Singh Chaufal and others , (2010)3SCC402, Court had a retrospect of the matters filed as Public Interest Litigation and examined its evolution in the backdrop where appointment of L.P. Naithani, Senior Advocate as Advocate General was challenged in a Public Interest Litigation on the ground that he was above 62 years, hence ineligible, though it was already settled in catena of decisions that the age of superannuation prescribed for High Court Judges was not applicable to office of Advocate General. In para 23, Court said that Public Interest Litigation in question was an abuse of the process, and High Court should not have heard and entertained such petitions since controversy was decided as long back as in 1952 in G.D. Karkare vs. T.L. Shevde, AIR1952Nag330. While going through evolution of Public Interest Litigation, Court said that the origin and development of PIL can broadly be placed in three phases:

 Phase I.- It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under 287 Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this Court or the High Courts.

 Phase II.- It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments, etc.  Phase III.- It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance."

439. Phase II deals with the public interest litigations entertained for issuing directions to preserve and protect ecology and environment and Court referred to some leading cases in paras 76 to 95.

440. In M. Nizamudeen vs. Chemplast Sanmar Limited and Others , (2010)4SCC240, issue of transfer of hazardous substances from ships to ports in CRZ area in the light of the provisions of CRZ Notification dated 19.02.1991 as amended from time to time was considered. One M/s. Chemplast Sanmar Limited (in short „Chemplast‟) sought to establish a unit for manufacturing Poly-Vinyl Chloride (in short „PVC‟) at Semmankuppam village, S IPC OT Industrial Complex, Phase-II, Cuddalore District, Tamil Nadu. EC was granted by MoEF on 28.11.2005 subject to certain conditions. For manufacturing PVC one of the raw materials was Vinyl Chloride Monomer (in short „VCM‟) which was not available indigenously and had to be imported from international suppliers. Proponent proposed to install Marine Terminal Facility near the seashore at Chitrapettai Village for receiving and transferring VCM from ships to PVC plant through underground pipeline. This proposal was recommended in favour of proponent by District Coastal Zone Management Committee and considered by Tamil Nadu State Coastal Zone Management Authority (TNSCZMA) recommending to State Government to forward proposal to MoEF for issue of CRZ clearance. Government of Tamil Nadu vide letter dated 09.11.2005 informed National Coastal Zone Management Authority its acceptance of the 288 recommendation made by the TNSCZMA and ultimately MoEF also granted EC on 19.12.2005. Consent under Water Act, 1974 was granted by State PCB on 14.09.2006. Thereafter, proponent made an application dated 06.02.2008 to Executive Engineer, PWD seeking permission for carrying seawater and raw-materials through pipelines laid 3.50 meter below the river bed. Initially, permission was granted by Executive Engineer on 27.02.2008 but within less than a month on 19.03.2008, the said permission was cancelled by Executive engineer on the ground that VCM may cause pollution and health hazard to the public. This order of cancellation was challenged by proponent in High court. Writ Petition was allowed on 18.07.2008 setting aside order cancelling permission dated 19.03.2008. Thereafter, one Shri M. Nizamudeen filed a PIL in Madras High Court challenging order dated 27.02.2008 granting permission by Executive Engineer. He did not challenge EC granted by MoEF on 28.05.2005 and 19.12.2005. High Court dismissed writ petition of Shri M. Nizamudeen vide judgment dated 31.10.2008 and thereafter, appeal came up before Supreme Court. The first question raised before Supreme Court was, whether river Uppanar and its drain at the point where pipeline pass, fall in CRZ tree area and secondly if the first question is answered in affirmative whether pipeline crossing underneath Uppanar would require EC. Another incidental question was whether para 2(ii) of CRZ Notification, 1991 restricts transfer of VCM (hazardous substance) beyond port area to PVC plant through pipelines. Examining CRZ Notification, 1991 along with its amendments dated 29.12.1998 and 21.05.2002, Court observed that the provisions have to be read so as to render them workable and not ineffective, inoperative or redundant. Hence, explaining the expression "in the port areas", court said that it should be read as "in or through the port areas" so that the basic 289 purpose is served effectively and in a workable manner. Court said that there cannot be an intention that hazardous substance though maybe brought into refinery or terminal in the port area from the ship but would remain there and cannot be taken beyond the port area because of the prohibition so as to frustrate the purpose for which the same were brought in.

441. In Goan Real Estate & Construction Ltd. & Anr. vs. Union of India , (2010)5SCC388, writ petition under Article 32 was filed before Supreme Court with a prayer that building plans, sanctions and constructions made and on-going constructions pursuant to CRZ Notification dated 19.02.1991 as amended by notification dated 16.08.1994 are dwelled. Under Notification of 1991, area upto 100 meters from High Tide Line was earmarked as „No Development Zone‟ and no construction was permissible within this zone except repairs etc. Vide notification dated 16.08.1994 an amendment was brought in relaxing no development zone from 50 meters to 100 meters pursuant whereto, some people applied for raising construction between 50 meters to 100 meters for which the concerned authorities granted permission and, in some matters, construction started, and in some cases, it was already completed. Earlier in Indian Council for Enviro-Legal Action vs. Union of India , (1996)5SCC281 a complaint that CRZ Notification 1991 was not being followed by the authorities themselves causing continuous degradation of ecology was made. In that writ petition, Goa Foundation Society filed an application challenging vires of notification dated 16.08.1994 by which notification dated 19.02.1991 was amended. The writ petition in Indian Council for Enviro-Legal Action (supra) was partly allowed and two amendments introduced by Notification dated 16.08.1994 were strike down. Reduction from 100 meters to 50 meters 290 was not found to be rational and valid and held contrary to the object of EP Act, 1986 . The authorities started action in respect of on-going project, in the light of Supreme Court judgment striking down amendment made by Notification dated 16.08.1994 and that is how matter came again before Supreme Court in Goan Real Estate and Contraction Limited (supra). The question for consideration was whether construction made or on-going pursuant to the plan sanctioned on the basis of Notification dated 16.08.1994 would be affected or not. The question was answered holding that judgment dated 18.04.1996 rendered in Indian Council for Enviro-Legal Action (supra) will not affect on-going constructions or completed constructions pursuant to plan sanctioned under Notification dated 16.08.1994 till two clauses of the same were set aside by Supreme Court and the said judgment will not affect the completed or the on-going constructions being undertaken pursuant to the amended Notification.

442. In James Joseph vs. State of Kerala , (2010)9SCC642, Section 12-A(1) of Kerala Forest Act, 1961 was considered which provided second appeal. An argument was raised that second appeal would be available only if there is a substantial question of law like Section 100 CPC and not otherwise. The said argument was rejected observing that an appeal is governed by statute and the Appellant authority can examine correctness of the order appealed on the point of law or fact, both, unless there is any specific requirement provided in the provision providing second appeal.

443. In Sansar Chand vs. State of Rajasthan , (2010)10SCC604, while hearing criminal appeal wherein appellant has challenged his conviction under Wild Life Protection Act, 1972 (WLP Act 1972) on the 291 charges of poaching etc., Court observed that preservation of wild life is important for maintaining ecological balance in the environment and sustaining ecological chain. Directions were issued to Governments and State authorities to ensure preservation of wild life and take stringent action against those who are violating the provisions of WLP Act, 1972.

444. In People for Ethhical Treatment of Animals vs. Central Zoo Authority and Others , W.P. No. 195/2006 was filed in Supreme Court under Article 32 raising the issue of cruelty on animals in unrecognized/derecognized Zoos/Circuses/Rescue Centres etc. On 09.10.2006, Court directed that no zoo shall permit any breeding of animals beyond the numbers specified by Central Zoo Authority in its directive dated 07.02.1995, besides other directions. Ultimately, after noticing the progress resulting in closure of unrecognized/derecognized Zoos/Circuses/Rescue Centres etc., issue of guidelines, framing of rules etc., Court found that the purpose of writ petition has been achieved and disposed the matters vide order dated 10.02.2009 reported in (2010)14SCC733.

445. In Re: Construction of Park at Noida near Okhla Bird Sanctuary vs. Union of India and Others, (2011)1SCC744, environmental issues arising from development of five parks at Sector 95 at NOIDA by State Government and NOIDA were considered. The project was opposed by applicants who brought the matter in Supreme Court in pending W.P. No. 202/1995, T.N. Godavarman Thirumulpad vs. Union of India & Others , by means of IAs, on the ground that large number of trees were cut down for clearing ground in an area which was „forest‟ in terms of judgment in T.N. Godavarman Thirumulpad (supra), in violation of FC Act, 1980 and EP Act, 1986 . Project on its 292 western side lies in very proximity to Okhla Bird Sanctuary which included a large water body and is home to about 302 species of birds. Sanctuary was so declared by Notification dated 08.05.1990 issued under Section 80 of WLP Act, 1972. The stand taken by State Government was that project area does not have naturally grown trees but planted trees; area has neither been notified as "forest" nor recorded as "forest" in Government record and not identified as deemed forest. Court accepted stand of the State and held that project site is not forest land hence does not contravene Section 2 of FC Act, 1980. With regard to application of EIA 2006 to the said project, Court examined provisions of EIA 2006, and said that entries 8(a) and 8(b) of Schedule talk of "building and construction project" and "townships and area development project". Since two kinds of projects are treated separate and differently, it would mean that an „area development project‟ though may involve a good deal of construction, would not be a „building and construction project‟. Court also considered the argument that in Category 8(a), there is no mention of the construction activities of more than 1,50,000 sq.m. and, therefore, necessarily, it would be covered by Category 8(b) and said in para 64, 65, 66 and 67, as under:

65. It is extremely difficult to accept the contention that the contention that the categorisation under Items 8(a) and 8(b) has no bearing on the nature and character of the project and is based purely on the built-up area. A building and construction project is nothing but addition of structures over the land. A township project is the development of a new area for residential, commercial or industrial use. A township project is different both quantitatively and qualitatively from a mere building and construction project. Further, an area development project may be connected with the township development project and may be its first stage when grounds are cleared, roads and pathways are laid out and provisions are made for drainage, sewage, electricity and telephone lines and the whole range of other civic infrastructure. Or an area development project may be completely independent of any township development project as in case of creating an artificial lake, or an urban forest or setting up a zoological or botanical park or a recreational, amusement or a theme park.

66. The illustration given by Mr Bhushan may be correct to an extent. Constructions with built-up area in excess of 1,50,000 would be huge by any standard and in that case the project by virtue of sheer magnitude would quality as township development project. To that limited extent there may be a quantitative correlation between Items 8(a) and 8(b). But it must be realised that the converse of the illustration given by Mr Bhushan may not be true. For example, a project which is by its nature and character an "area development project" would not become a "building and construction project" simply because it falls short of the threshold mark under Item 8(b) but comes within the area specified in Item 8(a). The essential difference between items 8(a) and 8(b) lies not only in the different magnitudes but in the difference in the nature and character of the projects enumerated thereunder.

67. In light of the above discussion it is difficult to see the project in question as a "building and construction project". Applying the test of "dominant purpose or dominant nature" of the project or the "common parlance" test i.e. how a common person using it and enjoying its facilities would view it, the project can only be categorised under Item 8(b) of the schedule as a township and area development project". But under that category it does not come up to the threshold marker inasmuch as the total area of the project (33.43 ha) is less than 50 ha and its built-up area even if the hard landscaped area and the covered areas are put together comes 1,05,544.49 sq m i.e. much below the threshold marker of 1,50,000 sq m. The inescapable conclusion, therefore, is that the project does not fall within the ambit of the EIA Notification S.O. 1533(E) dated 14-9-2006. This is not to say that this is the ideal or a very happy outcome but that is how the notification is framed and taking any other view would be doing gross violence to the scheme of the notification."

446. On the question of project being within 10 kms of Okhla Bird Sanctuary, it was noticed that Sanctuary is hardly at a distance of 50 294 meters but unfortunately, neither there was any notification declaring eco-sensitive zone nor Central or State Government have notified buffer zones around Sanctuaries and National Parks to protect sensitive and delicate ecological balance required for the Sanctuaries. However, Court said that absence of statute will not preclude Court from examining project‟s effects on the environment with particular reference to Okhla Bird Sanctuary. As per jurisprudence developed by Court, environment is not merely a statutory issue but is one of the facets of the Right to Life guaranteed under Article 21 of Constitution. Environment, therefore, is a matter directly under Constitution and if Court perceives any project or activity as harmful or injurious to environment, it would feel obliged to step in. Consequently, Court issued certain directions for maintaining soft/green landscaping and thick cover of trees of native variety on the side of bird sanctuary.

447. Court also noticed anomaly in EIA 2006 Items 8(a) and 8(b) and in para 84 said:

448. In Krishnadevi Malchand Kamathia and Others vs. Bombay Environmental Action Group and Others , (2011)3SCC363, the matter 295 was taken up in I.A. in contempt. Original proceedings in Civil Appeal No. 4421 of 2010 were decided vide judgment dated 07.05.2010. It was brought to the notice of Court that appellant has damaged mangroves in the garb of repair of bund and violated Court‟s order. Observing that justice is only blind or blindfolded to the extent necessary to hold its scales evenly, and it is not, and must never be allowed, to become blind to the reality of the situation, lamentable though that situation may be, Court held appellant guilty of contempt and issued directions for restoration of bund by removing all debris/bricks, etc. and restore situation as it existed earlier so as to facilitate natural flow of sea water into land.

449. In K. Balakrishnan Nambiar vs. State of Karnataka and Others , (2011)5SCC353, a question arose „whether areca nut cultivation can be treated to be a forest activity or not‟. On behalf of appellant, the argument was that areca nut cultivation cannot be treated as a non- forest activity since it does not involve cutting of trees. Rejecting the same, Court dismissed appeal. Reference was made to judgment in T.N. Godavarman Thirumulpad vs Union of India & Others , (1997)2SCC267, where direction was issued to all State Governments to ensure that all on-going non-forest activities within any forest, without prior approval of Central Government, must seize forthwith. Court also emphasized that every State Government must ensure total cessation of all non-forest activities forthwith.

450. In State of Karnataka and Others vs. Janthakal Enterprises and Another , (2011)6SCC695, continued mining by scrupulous mining lease holders, who got order from High Court, was deprecated and Court said:

451. The effect of mining on environment in the context of National Forest Policy, 1988 was considered in Lafarge Umiam Mining Private Limited vs. Union of India, (2011)7SCC338. The company, M/s. Lafarge Surma Cement Ltd. (hereinafter referred to as „LSCL‟) was incorporated under the laws of Bangladesh. It had set up a cross-border cement manufacturing project at Chhatak in Bangladesh which inter-alia has a captive limestone mine of 100 hectares located at Phlangkaruh, Nongtrai, East Khasi Hills District in State of Meghalaya. Mine was leased out in favour of Lafarge Umium Mining (P) Ltd. (hereinafter referred to as „LUMPL‟), which was a company incorporated under Companies Act, 1956 and wholly owned subsidiary of LSCL. Entire produce of mine was used for production of cement at manufacturing plant at Chhatak under agreement/arrangement between Governments of India and Bangladesh. There was no other source of limestone available for LSCL except for captive limestone mine situated at Nongtrai. LUMPL conveyed limestone extracted from mines situated at Nongtrai after crushing in a crusher plant to LSCS plant in Bangladesh. LUMPL submitted an application on 01.09.1997 for grant of EC under EIA 1994 for limestone mining project at Nongtrai. The application was returned by MoEF with the direction to seek site clearance as well as project 297 clearance as per amendment made in EIA 1994. Application for site clearance was submitted on 23.09.1998, which was allowed by MoEF vide letter dated 18.06.1999. Thereafter, application was submitted on 17.04.2000 for grant of EC under EIA 1994 for excavation of 2 million tonnes per annum of limestone and transportation thereof to Chhatak in Bangladesh through a conveyor belt. The mining area of 100 hectares was declared as „barren‟ land. Divisional Forest Officer issued a certificate on 13.06.2000 certifying that mining site was not forest area nor did it fall under any notified reserved or protected forest. Ultimately, EIA clearance was given by MoEF on 09.08.2001. Chief Conservator of Forest, however, vide letter dated 01.06.2006 informed MoEF that mining area included thick natural vegetation cover with sizable number of tall trees and permission under FC Act, 1980 was necessary, which was not obtained. Project Proponent applied for NOC from Forest Department. On the ground that the area included forest and there was violation of FC Act, 1980 , Chief Conservator of Forest requested Government of Meghalaya to stop further mining etc. MoEF consequently issued order dated 30.04.2007 for complete closure of all on-going non-forest activities by Lafarge. This prompted Lafarge to move to Supreme Court by filing I.A No. 1868 of 2007 in Lafarge Umiam Mining Private Limited, T.N. Godavarman Thirumulpad vs. Union of India and others, (2011)7SCC338 seeking a direction to MoEF to expeditiously process its application under Section 2 of FC Act, 1980. Vide order dated 05.02.2010 (reported in T.N Godavarman Thirumulpad vs. Union of India , (2010)12SCC376) Court directed proponent to stop all mining activities. MoEF granted EC on 19.04.2010 with certain additional conditions and forest clearance was issued on 22.04.2010. State Government recommended diversion of 116.589 hectare of forest land for 298 limestone mining in favour of project proponent vide letter dated 16.07.2007 which was examined by Expert Appraisal Committee and ultimately, Government of Meghalaya vide letter dated 12.07.2010 made recommendation for grant of formal approval under Section 2 of FC Act, 1980. Answering the issues relating to nature of land and validity of ex- post facto clearance, Court said that universal human dependence on use of environmental resources for the most basic needs render it impossible to refrain from altering the environment. As a natural corollary, environmental conflicts are ineradicable and environmental protection is always a matter of degree, inescapably requiring choices as to the appropriate level of environment protection and the risk which are to be regulated. This aspect is recognized by the concept of „sustainable development‟. Court held it valid on the ground that record show that it was not granted without due consideration and hence it is not vitiated for non-application of mind. Court also held that ex-post facto clearance is based on revised EIA 1994, EIA 2006 has no application. It also observed in para 119 that facts of the case justify application of constitutional „doctrine of proportionality‟ to the matters concerning environment as a part of process of judicial review in contradistinction to merit review. In this regard, Court said, "It cannot be gainsaid that utilisation of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. 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 299 informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of "margin of appreciation" in favour of the decision-maker would come into play."

452. Further, directions were issued by Supreme Court for future cases. In para 122, Court said that National Forest Policy, 1988 which lays down far-reaching principles, must necessarily govern grant of permissions under Section 2 of FC Act, 1980 as the same provides road map to ecological protection and improvement under EP Act, 1986 . Court further said, "The principles/guidelines mentioned in the National Forest Policy, 1988 should be read as part of the provisions of the Environment (Protection) Act, 1986 read together with the Forest (Conservation) Act, 1980 ". Court also directed Central Government to appoint an appropriate authority in the form of Regulator at State and Central level, for ensuring implementation of National Forest Policy, 1988. Several other guidelines in respect of clearance for non-forest activities in forest area and grant of EC where forest land is involved, were issued in para 122 and 123 of the judgment.

453. In Indian Council for Enviro-Legal Action vs. Union of India and Others (2011)8SCC161, Court examined issue of environmental compensation as also compensation to the individual victims on account of industrial activities carried out by M/s. Hindustan Agro Chemicals Ltd., Rajasthan Multi Fertilisers, Phosphate India, Jyoti Chemicals and Silver Chemicals. It was an off-shoot of earlier proceedings initiated by same complainant namely; Indian Council for Enviro-Legal Action, where the matter was decide vide judgment dated 13.02.1996, reported in (1996)3SCC212. W.P.(C) No. 967 of 1989 was filed complaining that certain chemical industries were indulged in industrial activities in utter violation of statutory conditions and environment norms; they are 300 recklessly spreading hazardous industrial waste (iron sludge and gypsum sludge) all over the area and do not bother to ensure proper disposal; Toxic substances percolated into earth polluting soil, aquifers and subterranean water supply and also causing ailments and diseases to local villagers. During pendency of Writ Petition, Rajasthan State PCB directed closure of certain industries by issuing an order under Section 33 (A) of Water Act, 1974. This order was also challenged before Supreme Court in W.P.(C) No. 76 of 1994, wherein, an interim order was passed, permitting industry to continue to run with certain conditions. Another W.P.(C) No. 824 of 1993. filed by M/s. Hindustan Agro Chemicals also came up for disposal along with W.P.(C) Nos. 967 of 1989 and 76 of 1994 and decided by judgment dated 13.02.1996 reported in (1996) 3SCC212 (supra). Court held that industries concerned were liable for pollution caused and industries had forfeited all claims for any lenient consideration. Court directed attachment of factories, plant, machinery and all other immovable assets of the said industries and Rajasthan State PCB was directed to seal all the factories and plants. Later, vide order dated 04.11.1997, Court determined cost of remedial measures at Rs. 37.385 crores on the basis of assessment/reports of various authorities and by adjudicating the contentions raised. M/s. Hindustan Agro Chemical Ltd., however, avoided payment by keeping litigation alive for 1½ decade and, thereafter, in I.A. filed, Court, in para 197, laid down certain principles to be observed and followed, as under:

454. Ultimately, Court directed M/s. Hindustan Agro Chemicals Ltd. to pay Rs. 37.385 crores along with compound interest at 12% per annum and also cost of Rs. 10 lakhs in both I.As.

455. In T.N. Godavarman Thirumulpad (2011)15SCC671 (Order dated 28.11.2006 in I.A. No. 826 and others), Court considered complaint about constitution of Forest Advisory Committee where in Mining and Civil Engineers were brought in as Members. Deprecating the same, Court said that "extraction of minerals and reclamation strictly does not follow within the domain of Ministry of Environment and Forest and an expert needed for conservation of forest cannot be substituted by alleged experts in the field of mining etc." In para 21, Court said, "mining or other development projects cannot be said to be allied disciplines of forestry. Allied disciplines may be like water harvesting, wildlife protection, biodiversity, etc. The composition of these 3 is to strengthen the participation of people in the matter of conservation of forest and to check the degradation of the environment". Again, in para 23, Court said that it is implicit in Rules of 2003 and when seen in the light of 1981 Rules, coupled with the objects of FC Act, 1980 that the persons to be included 302 in the category under consideration are those who are independent experts in the field of conservation of forests and allied disciplines, and have established their credentials in that capacity as opposed to those who may be government servants.

456. In Meghwal Samaj Shiksha Samiti vs. Lakh Singh & Others (2011)11SCC800, Court shows its concern for protection of water body. In village Raniwara Kalan, District Jalore, Rajasthan, in Revenue records, a village pond as „gair mumkin nada‟ was recorded. After sometime it fell into disuse whereafter District Collector allotted 0.48 hectares of the area of the said pond to Meghwal Samaj Shiksha Samiti on 99 years lease. The said allotment was challenged in a writ petition filed in High Court which was allowed vide judgment dated 20.11.2002. Court said that once the land was recorded as pond, it was incumbent upon the authorities concerned to restore and maintain the same as pond and it could not have been allotted for any purpose or construction. The allottee in Appeal before Supreme Court placed reliance on the report of Patwari that there was no water in the pond and hence, it could have been allotted but rejecting the same, Court relied on the judgment in Hinch Lal Tiwari vs. Kamala Devi (2001)6SCC496, and said that if land was recorded as pond it had to be maintained as it is and the report of Patwari will not be of any consequence. In Hinch Lal Tiwari (supra), it was found that once a pond is existed and recorded in Revenue records, merely because for some time or otherwise, it has encroached or dried up, will not change its nature and it has to be protected. In para 13 of the judgment Court said:

457. Court further said that Revenue Authorities should make all attempts to develop the pond if it is so recorded and cannot take advantage of any encroachment or drying up of the pond. Protection and preservation of the pond would prevent ecological disaster and provide better environment to the people at large.

458. Protection of wild buffaloes mostly found in Western and Eastern ghats of the country in the context of State of Chhattisgarh was considered in T.N. Godavarman Thirumulpad vs. Union of India & Others (2012)3SCC277 (order dated 12.02.2012 in IA Nos. 1433 and 1477 of 2005 in WP (C) No. 202 of 1995). Wild buffalo was declared State animal in State of Chhattisgarh. Referring to the statute enacted for protection of wild life i.e., WP Act, 1972, Court observed that prior to the said act there was a scheme namely "Assistance for the Development of National Parks and Sanctuaries" which used to support only National Parks and Wildlife Sanctuaries. Subsequently with the enactment of Act 1972 and amendment made in 2003, two more categories were added i.e., Conservation Reserves and Community Reserves. Earlier the areas namely Sanctuaries, National Parks and Closed Areas were substituted by the words "protected areas" by Act 16 of 2003 and in view of the 42nd amendment of Constitution and insertion of Entry 17A i.e. "forest" and Entry 17B i.e. "protection of wild animals and birds", Central as well as State Government both got mandated with the responsibility of protection and conservation of wild life and its habitants. Steps taken by State were not found satisfactory for protection of wild buffalos and directions were issued for undertaking intensive research and monitor as 304 also training to the officials and maintain sanctuary and other areas whereby buffalos are found, in a more scientific and effective manner.

459. The issue of protection of sandalwood and red sandalwood said to be endangered species was considered in T.N. Godavarman Thirumulpad vs. Union of India & Others (2012)4SCC362 (order dated 13.02.2012 in IAs Nos. 1287, 1570-71 of 1996 with other IAs). NGO moves Central Empowered Committee for initiating steps to close unlicensed sandalwood industries particularly, in State of Kerala. CEC submitted report. After giving notice, the matter was considered. Court observed that the examination of Statues relating to environment in India as also international convention it found that there was a shift from environmental rights to ecological rights though gradually but substantial. The report was based on anthropocentric ethics which also find ambit in the principle that all humans are equitable access to natural resources meaning thereby all natural resources are treated as property and not alive. Further Precautionary Principle and Polluter Pays Principle followed by this Court, also based on anthropocentric principle since they also cause harm to human as a pre-requisite for invoking these principles. The principle of sustainable development and Inter- Generational equity too pre-supposes the higher needs of humans and lays down that exploitation of natural resources must be equitably distributed between present and future generations. Environmental ethics behind the above principles were human need and exploitation but have no role when an issue of endanger species come for consideration before this Court. Explaining anthropocentric approach, Court said that it considers humans to be the most important factor and value in the universe. Humans have greater intrinsic value than other species. Under this approach, environment is only protected as a consequence of and to 305 the extent needed to protect human well being. However, there is another approach i.e. ecocentric which stress the moral imperatives to respect intrinsic value, inter dependence and integrity of all forms of life. Thereafter, Court issued directions for conservation of sandalwood.

460. In Deepak Kumar & Others vs. State of Haryana & Others (2012)4SSC629, effect of mining of minor minerals and its regulation was considered in the context of auction notices issued by Department of Mines and Geology, Government of Haryana. Supreme Court, however, extended its scope of direction, Pan India. Background facts are, that auction notice dated 3.6.2011, issued by Department of Mines and Geology, Haryana proposing to auction extraction of minor minerals, boulders, gravel and sand quarries of an area, not exceeding 4.5 ha in district of Panchkula, was challenged. Further, auction notices dated 8.11.2011, in the district of Panchkula, Ambala and Yamuna Nagar exceeding 5 ha and above, quarrying minor mineral, road metal and masonry stone mines in the District of Bhiwani, stone and sand mines in the district of Mohindergarh, slate stone mines in the district of Rewari, and also in the districts of Kurukshetra, Karnal, Faridabad and Palwal, with certain restrictions for quarrying in the riverbeds of Yamuna, Tangri, Markanda, Ghaggar, Krishnavati River basin, Dohan River Basin etc., were also challenged. It was also brought to the notice of Supreme Court that similar illegal mining is going on in various districts of Rajasthan and Uttar Pradesh. It was pointed out that under EIA 2006, EC is required only when mining is permitted in an area not less than 5 ha. Auction notices permitting mining in area less than 5 ha were challenged on the ground that in order to escape from environment study under EIA 2006, bigger areas have been divided in smaller areas of less than 5 ha and that is how illegal mining is being permitted causing 306 damage to environment. Supreme Court noticed the stand taken by MoEF in its affidavit dated 23.11.2011 that where mining area is homogenous, physically proximate and identifiable piece of land of 5 ha or more, it should not be broken into smaller sizes to circumvent EIA 2006. There was a Committee of Minor Minerals which had recommended minimum lease size of 5 ha for minor minerals for undertaking scientific mining for the purpose of integrating and addressing environmental concerns. Court said that minor minerals, boulders, gravel and sand quarries etc., in the places notified in auction notices, including the riverbeds of Yamuna, Tangri, Markanda, Ghaggar, Krishnavati River basin, Dohan River Basin etc., would result in environmental degradation and threat to bio-diversity, damage to riverine vegetation, cause erosion, pollute water resources etc. There was nothing on record to come to otherwise conclusion. It further shows that sand mining on either side of river upstream and instream, is one of the causes for environmental degradation and also threat to biodiversity over the years; India‟s rivers and riparian ecology had been badly affected at alarming rate due to unrestricted sand mining which has caused damage to ecosystem of rivers and safety of bridges, weakening of riverbeds, destruction of natural habitats of organisms living on the riverbeds. It would also affect fish breeding and migration, spells disaster for conservation of many bird species, and had increased saline water in rivers. Commenting on the loss to the environment due to mining of minerals within or near streambeds or inside streambeds, Court observed, that extraction of alluvial material from within or near a streambed has direct impact on stream‟s physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, 307 sediment transport, stream discharge and temperature. If these habitat characteristics are altered, the same can have deleterious impact on both, instream biota and the associated riparian habitat. It is true that demand for sand had continued and would continue to increase, day by day, due to ongoing construction of new infrastructures and expansion of existing ones. It is continuous process, placing immense pressure on the supply of sand resource. This has, and would, encourage mining activity which are bound to go on, legally or illegally, without any restriction. Lack of proper planning and sand management cause disturbance of marine ecosystem and would upset, the ability of natural marine processes to replenish the sand. Court expressed its anguish in the manner auction notices which were published by State of Haryana, permitting quarrying, mining and removal of sand from upstream and instream of several rivers which may have serious environmental impact on ephemeral, seasonal and perennial rivers and riverbeds, and sand extraction may have an adverse effect on biodiversity as well. This may also lead to bed degradation and sedimentation having a negative effect on the aquatic life. Some of the rivers mentioned in the auction notices are on the foothills of fragile Shivalik Hills. Shivalik Hills are the source of rivers like Ghaggar, Tangri, Markand, etc. River Ghaggar is a seasonal river which rises up, in the outer Himalayas, between Yamuna and Satluj and enters Haryana near Pinjore, District Panchkula, which passes through Ambala and Hissar and reaches Bikaner in Rajasthan. River Markanda is also a seasonal river like Ghaggar, which also originates from the lower Shivalik Hills and enters Haryana near Ambala. During monsoon, this river swells up into a raging torrent, notorious for its devastating power, as also River Yamuna. Court found that without conducting any study on the possible environmental impact, on/in the 308 riverbeds, and elsewhere, the auction notices were issued. Court said that, when extraction of alluvial material within or near a riverbed has an impact on river‟s physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that extraction is in blocks of less than 5 ha, separated by 1 km, since their collective impact may be significant, hence the necessity of a proper environmental assessment plan. MoEF brought to the notice of Court that it had come across several instances across the Country regarding damage to lakes, river beds and ground water leading to drying up of water beds and causing water scarcity on account of quarrying/mining leases and mineral concessions granted under rules, by Provincial Governments. State Government paid less attention on environmental aspect of minor minerals on the pretext that area was small but ignored the fact that collective impact in a particular area, over a period of time, was or would be significant. For taking note of these aspects, MoEF constituted, a Core Group under Chairmanship of Secretary (Environment and Forest) to look into the environmental aspects associated with mining of minor minerals, vide order dated 24.3.2009. The Core Group considered matter on following aspects: i.) Need to relook the definition of minor mineral, ii.) Minimum size of lease for adopting eco-friendly scientific mining practices, iii.) Period of lease, iv.) Cluster of mine approach for addressing and implementing EMP in case of small mines, v.) Depth of mining to minimise adverse impact on hydrological regime, vi.) Requirement of mine plan for minor minerals, similar to major minerals, vii.) Reclamation of mined out area, post mine land use, progressive mine closure plan etc., The Core Group examined the matter and submitted a Draft report to MoEF which was considered and discussed on 29.01.2010 and thereafter final report was circulated 309 to all the State Governments vide MoEF‟s DO letter dated 1.06.2010. The Ministry of Mines, Government of India also prepared draft rules called "Minor Minerals (Conservation and Development) Rules 2010", and also sent communication dated 16.05.2011, called "Environmental Aspects of Quarrying and of Minor Minerals-Evolving of Model Guidelines" along with a draft model guideline, calling for inputs, before 30.06.2011. In view of above, Court noticed that it is absolutely necessary to have an effective frame work of mining plan which will take care of all environmental issues, evolve a long term rational and sustainable natural resource base and also bio assessment protocol. Quarrying of river sand is an important economic activity of the Country with river sand, forming a crucial raw material for infrastructural development and construction industry, but excessive instream sand and gravel mining causes degradation of rivers. Instream mining lowers the stream bottom of rives which may lead to bank erosion. Depletion of sand in the streambed and along coastal areas causes deepening of rivers which may result in destruction of aquatic and riparian habitats as well. Extraction of alluvial material from within or near a streambed has a direct impact on stream‟s physical habitat characteristics. Sand mining, therefore, may have an adverse effect on bio-diversity as loss of habitat caused by sand mining will affect various species of flora and fauna and may also destabilise soil structure of river banks and often leaves isolated islands.

461. In these circumstances, Supreme Court said that Government of India‟s recommendations made in March 2010 followed by Model Rules 2010 must be given effect so as to inculcate spirit of Article 48 (A) , Article 51 (A) (g) read with Article 21 of the Constitution. Court, therefore, issued directions to all States and Union Territories, MoEF and Ministry of Mines to give effect to the recommendations made by MoEF in its Report 310 of March 2010 and the model guidelines framed by Ministry of Mines, within a period of six months from the date of the Judgment i.e., 27.02.2012 and submit compliance. Court also directed Government of India to take steps to bring into force Minor Minerals Conservation and Development Rules, 2010 at the earliest. Various State Governments and Union Territories were also directed to take steps to frame necessary rules under Section 15 of MMRD Act, 1957, taking into consideration recommendations of MoEF in its Report of March 2010 and Model Guidelines framed by Ministry of Mines, Government of India.

462. The details of recommendation made by MoEF are reproduced in para 19 of the judgment and key recommendations contained in MoEF‟s DO letter dated 1.06.2010 are mentioned in para 22 of judgment. Supreme Court specifically directed that lease of minor minerals including renewal of an area of less than 5 ha would be granted by concerned authorities only after getting EC from MoEF.

463. In Samaj Parivartan Samudaya & Others vs. State of Karnataka (2012)7SCC407, issue of illegal mining in Andhra Pradesh was for consideration. Court constituted a Committee to collect facts and report. Report of Committee was challenged on the ground that no opportunity was given to the parties. Rejecting this argument, Court said that Committee is not discharging quasi-judicial or even administrative functions with a view to determine any rights of the parties. It was not expected of Committee to give notice to the companies involved in illegalities or irregularities, as it was not determining any of their rights. It was simpliciter reporting matters to the Court as per ground realities, primarily with regard to environment and illegal mining, for appropriate directions. In fact, Committee was conducting a fact finding 311 inquiry. A similar argument was raised in respect to CBI enquiry was rejected by Court observing that there is no provision in CrPC which requires investigating agency to give an opportunity to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. Court also commented upon the obligation of State where offences by carrying out illegal mining are being committed. Court said that State cannot escape its liability by stating that private complainant, who made complaint, must bring sufficient material to prove offence. Court also said that whenever and wherever State fails to perform its duties, Court shall step in to ensure that Rule of Law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes.

464. In Orissa Mining Corporation Ltd. vs. Ministry of Environment and Forest (2013)6SCC476, order of MoEF&CC dated 24.8.2010 rejecting Stage-II Forest Clearance for diversion of 660.749 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and Rayagada Districts of Orissa, was challenged in writ petition filed under Article 32 of the Constitution and decided by a 3 judges bench vide judgement dated 18.04.2013. The brief background facts are that M/s. Sterlite, (parent company of Vedanta), sought EC from MoEF submitting application dated 19.03.2003 for establishing Alumina Refinery Project (ARP) in Lanjigarh Tehsil of District Kalahandi. The company stated that no forest land was involved within an area of 10 kms. Another application dated 6.03.2004 was filed by M/s. Vedanta seeking clearance for use of 723.343 ha of land (including 58.943 ha of reserve forest land) in Lanjigarh Tehsil of District Kalahandi for setting 312 up an Alumina Refinery. Involvement of forest land rendered State of Orissa to forward a proposal dated 16.08.2004 to MoEF for diversion of 58.90 hectare of forest land which included 26.1234 hectare of reserve forest land. Later, State of Orissa withdrew its proposal. MoEF granted EC on 22.9.2004 to M/s. Sterlite to execute Alumina Refinery Project with 1 million tonne per annum capacity of refinery along with 75 MW coal based CPP at Lanjigarh on 720 hectare land, by delinking it with the mining project. Later, State of Orissa vide letter dated 24.11.2004 informed MoEF about involvement of 58.943 ha of forest land in the project where it was mentioned NIL, in the application for EC. Forest Department issued a show cause dated 5.08.2004 to M/s. Vedanta for encroachment of 10.41 acres of forest land by way of land breaking and levelling. State of Orissa, on 28.2.2005 forwarded proposal to MoEF for diversion of 660.749 ha of forest land for mining bauxite ore in favour of Orissa Mining Corporation in Kalahandi and Rayagada Districts. Central Empowered Committee (CEC), in the meantime, sent a letter dated 2.3.2005 to MOEF stating that pending examination of the project by CEC, no proposal for diversion of forest land be decided. M/s. Vedanta filed I.A. No. 1324 of 2005 seeking direction to MoEF to take a decision on his application for forest clearance which was objected by CEC. Court on 03.06.2006, directed MoEF to consult experts and submit report. Ultimately Forest Advisory Committee (FAC) on 27.10.2006 approved proposal of Orissa Mining Corporation for diversion of 660.749 ha. of forest land for the mining, subject to the conditions. Vedanta‟s I.A. was disposed of by Court on 23.11.2007 making certain observations. The suggestions made in the said order were jointly agreed by M/s. Sterlite, State of Orissa and Orissa Mining Company. One Siddharth Nayak filed a Review Petition stating that Court did not pose appropriate question 313 while deciding I.A. and has not examined ecological and cultural impact of mining in Niyamgiri Hills. MoEF agreed in principle for diversion of 660.749 ha of forest land subject to conditions and communicated its decision to Orissa Government vide letter dated 11.12.2008. EC was granted to Orissa Mining Corporation by MoEF vide proceeding dated 28.04.2009, subject to certain conditions. MoEF rejected request for stage-II clearance by order dated 24.08.2010 considering report of Forest Advisory Committee and Saxena Committee appointed by MoEF, and this order was challenged in Court. Since matter involved Tribal area, Court also examined Article 244(1) and 5th Schedule of the Constitution. Referring earlier judgment in Samatha vs. State of Arunachal Pradesh, (1997)8SCC191, Court said that all relevant clauses in the Schedule and Regulations should be harmoniously and widely be read as to elongate Constitutional objectives and dignity of person, to Scheduled Tribes and ensuring distributive justice as an integral scheme thereof. It also referred to Panchayats (Extension to Scheduled Areas) Act, 1996 extending Part IX of the Constitution to the Scheduled Areas and that its validity was upheld in Union of India vs. Rakesh Kumar , (2010)4SCC50. It also examined provisions of Schedule Tribes and other traditional forest dwellers (Recognition of Forest Rights) Act, 2006, a social welfare or remedial statute, enacted to protect a wide range of rights of forest dwellers and Schedule Tribes including customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation. The inter se relationship of Forest Rights Act and Mines and Minerals Development Regulations Act, 1957 was considered and relying on earlier judgement in Amritlal Athubhai Shah and others vs. Union Government of India and Another (1976)4SCC108, Court held, "the State Government 314 is the owner of minerals within its territory, and the minerals vest in it and hence power to reserve any particular area for Bauxite mining for a public section corporation". However, for deciding nature and extent of individual or community forest rights or both, Court found that it is the Gram Sabha which is the competent authority which can take such a decision and hence directed Gram Sabha to take appropriate decision on the question, whether Schedule Tribes had any religious right of worship over the Niyamgiri hills, and the writ petition was disposed of.

465. In G. Sundarrajan vs. Union of India & Others , (2013)6SCC620, ecological and environmental issues in the context of setting up of a nuclear power plant at Kudankulam in the State of Tamil Nadu were considered. National policy was pronounced by Central Government to develop, control and use of atomic energy for welfare of people of India. Atomic Energy Act, 1948 was repealed and replaced by Atomic Energy Act 1962. In September 1987, Government of India formed a public sector company i.e., Nuclear Power Corporation of India to design, build and operate nuclear reactors in the country. The nuclear power was broadly utilized for generation of electricity and about 20 power reactors were installed with a capacity of 4780 MWe, between 1969 to 2011. Seven more were proposed with a capacity of 5300 MWe which included Kudankulam. Examining the fact that in India bulk of the electricity i.e.,64% is generated from thermal sources, 18% was available from hydro project and 15% from renewal sources, and only 3 % share of electricity generation was attributable to nuclear projects, Court observed that it cannot sit over the judgment/decision taken by Government for setting up of nuclear plant. It is not for Court to determine whether a particular policy or a particular decision taken in fulfillment of a policy is fair or not. In Para 15, Court said,"It is not for 315 Courts to determine whether a particular policy or a particular decision taken in fulfillment of a policy, is fair. Reason is obvious, it is not the province of a court to scan the wisdom or reasonableness of the policy behind the Statute." However, Court proceeded to examine only legal aspects involving Statutes as also the environmental issues. Entire project was examined with the consideration that people‟s comfort, happiness, prosperity and economic growth of nation is always concern of their representatives in the Parliament. Public opinion, national policy, economic growth, sustainable development, energy security, are all intrinsically interlinked. One cannot be divorced from other, all the same, a balance has to be struck. National policy is that atomic energy has a unique position in the emerging economics in India. Nuclear energy is a viable source of energy and it is necessary to increase country‟s economic growth. Nuclear energy is considered in India as a sustainable source of energy and country cannot afford to be a nuclear isolated nation, when most of the developed countries consider it as a major source of energy for their economic growth. In this back drop, Court considered, „whether project had obtained all necessary environmental clearances‟ and said that the mere fact that project is a nuclear one and has been cleared by Atomic Energy Commission and other bodies related with nuclear establishments, would not be sufficient to confer authority upon Project Proponent to commission a nuclear project unless it conforms to the standards set by statutory authorities like MoEF and State Pollution Control Board and follow environmental laws. Court found that, when project was sought to be commenced, Regulations relating to Coastal area were not available, EC was granted by competent authority and neither there was any violation of CRZ Notification, 1991 nor there was violation of EIA 1994 since environmental clearance was granted to units 316 1 and 2 on 19.05.1989. It also held that for units 3 to 6 EC was granted in accordance with EIA 2006. Meeting various objections, Court did not find any legal or otherwise flaw in execution of the project. Serious apprehension expressed by certain section were repelled by observing that apprehensions howsoever, legitimate, cannot override justification of the project. Nobody on this earth can predict what would happen in future and to a larger extent we have to leave it to the destiny. But once justification test is satisfied, apprehension test is bound to fail. Court said that apprehension is something, we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person. Power generation through a nuclear plant, set up after following all safety standards, rules and regulations, is for welfare of people and economic growth of the country. Nuclear energy assumes an important element in country‟s energy mix for sustaining economic growth of natural and domestic use which in future has to replace a significant part of fossil fuel like coal, oil, gas etc. Electricity is the heart and soul of modern life, a life, meant not for the rich and famous alone but also for the poor and down trodden. They should also have an adequate means of livelihood, job opportunities for which we have to set up Industries and commercial undertakings in the public as well as private sector and also have to invite foreign investment. Referring to Chameli Singh & Others vs. State of U.P. & Another, (1996)2SCC549, Court reiterated that in an organized society right to live as a human being is not ensured by meeting only the animal needs of man, but secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and civil amenities like 317 road etc. so as to have easy access to his daily avocation. Nuclear power plant is being established not to negate right to life but to protect the said right guaranteed under Article 21.

466. In concurring judgment, Hon‟ble Dipak Mishra, J. in G. Sundarrajan (supra), referred to the role of welfare state and reminded the concept of parens patriae recognised in Charan Lal Sahu vs. Union of India , (1991)6SCC613 and the maxim salus populi (EST) suprema lex, i.e., regard for public welfare is the highest law. His Lordship also referred to other maxim that is salus republicae suprema lex i.e. safety of State is a supreme law, and said that law has many a mansion and the mosaic of law covers many spectrums so that both the maxims, namely, solus populi supreme lex and salus republicae supreme lex, can harmoniously coexist. His Lordship also referred to judgment in T.N. Godavarman Thirumulpad (supra), observing that no development is possible without some adverse effect on the ecology and environment, the projects of public utility cannot be abandoned and it is necessary to adjust interest of people as well the necessity to maintain environment. A balance has to be struck between the two interests. When commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bye passed.

467. In Association for Environment Protection vs. State of Kerala and Others , (2013)7SCC226, Court considered an appeal arising from judgment of Kerala High Court. Writ Petition raising a question of illegal construction on the banks of river Periyar within the area of Aluva Municipality was dismissed by High Court, not by discussing matter on merit, but only on ground that complainant has questioned construction of a hotel while builder was constructing a restaurant as part of the 318 project for renovation and beautification of Manalpuram Park. Issue was raised by an Association, a registered body, engaged in protection of environment in State of Kerala. In 2005, Aluva Municipality reclaimed a part of Periyar river. District Tourism Promotion Council, Ernakulam decided to construct a restaurant on reclaimed land by citing convenience of public coming on Sivarathri festival. Proposal was forwarded to State Government by including the same in project for renovation and beautification of Manalpuram Park. Administrative sanction was granted by State Government by order dated 20.05.2005. When construction was started by State Promotion Council, W.P.(C) No. 436/2006 was filed in High Court seeking a direction to the respondents restraining from continuing with construction on the bank of river Periyar and to remove construction already made. Writ Petition was dismissed by High Court, after taking cognizance of Government sanction order dated 20.05.2005. The construction was challenged before Supreme Court stating G.O. dated 13.01.1987 mandated a reference to environmental planning and coordination committee for review and assessment where cost of scheme is more than 10 lakhs but no such review and reassessment was made. Court found that construction was sanctioned and proceeded in violation of mandate of Government order dated 13.01.1987. Court also read Government order as power exercised to protect and improve environment envisaged under Article 48A and thus mandate of the said order could not have been condoned. Accordingly, court allowed appeal, and while setting aside High Court‟s order, allowed Writ Petition. It also directed respondents to demolish structures raised in the park. Court resorted to the above direction relying on various earlier orders and specifically referred to the decision in M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu , (1999)6SCC464, 319 where decision of Lucknow Nagar Mahapalika permitting construction of an underground shopping complex in Jhandewala Park, Aminabad Market, Lucknow was set aside by High Court and construction made on the park land was directed to be demolished and this was upheld up Supreme Court.

468. In Samaj Parivartana Samudaya & Others vs. State Of Karnataka & Others , (2013)8SCC154 (order dated 18.04.2013 deciding Writ Petitions 562 of 2009, 411 of 2010, 66 of 2010 and 76 of 2012 and other connected appeals), issue of systematic plunder of natural resources by a handful of opportunists seeking to achieve immediate gains in the context of mining of Iron Ore and allied minerals in the State of Karnataka was considered. While deciding, Court referred to its earlier order dated 28.09.2012 wherein resumption of mining was allowed subject to payment of minimum compensation of Rs. 5 crores per hectare and further additional amount on the basis of final determination of national loss caused by illegal mining and illegal use of land for overburden dumps, roads, offices, etc. Court also required guarantee money to be paid by leaseholders, to the extent of 15% of the sale proceeds of the iron ore sold. Looking to the gravity of situation, Court observed that an extraordinary situation has arisen on account of large scale illegalities committed in the operation of mines in question resulting in grave and irreparable loss to the forest wealth of the country besides colossal loss caused to the national exchequer. The situation being extraordinary, the remedy, indeed, must also be extraordinary. Illegal mining, apart from playing havoc on the national economy had, in fact, cast an ominous cloud on the credibility of the system of governance by laws in force. It has a chilling and crippling 320 effect on ecology and environment. Thereafter in the light of the joint committee constituted by court, it passed various directions.

469. The issue of protection of Asiatic Lion was considered in Centre for Environmental Law, WWF-India vs. Union of India , (2013)8SCC234. While considering legal framework, Court observed that Bio Diversity Act, 2002 was enacted for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of benefits arising out of the utilisation of genetic resources. Article 21 was extended by observing that it protects not only the human rights but also casts an obligation on human being to protect and preserve animals as species are becoming extinct and conservation and protection of environment is an irreparable part to Right to Life. Consequently, directions were issued for identification of the species which are endangered and take appropriate remedial steps.

470. Laxmi Narain Modi vs Union of India & Others , (2013)10SCC227, Court needed guidelines issued by MoEF for transportation of animal and slaughter Houses for proper implementation of provisions of prevention of cruelty to animals, (Establishment and Registration of Societies for Prevention of Cruelty to Animals) Rules, 2000, the Environment Protection Act, 1986 , the Solid Waste (Management and Handling) Rules, 2000, the Prevention of Cruelty to Animals (Slaughter House) Rules, 2000 and directed all the Governments to follow the said guidelines.

471. In Alaknanda Hydro Power Co. Ltd vs. Anuj Joshi & Others (2014)1SCC769, ecological issue relating Srinagar Hydro Electric Project (SHEP) located in Tehri/Pauri Garhwal on river Alaknanda came up for consideration. Applicability of EIA 1994 with regard to grant of EC when 321 it was already granted long back, also came up for consideration. Central Electricity Authority exercising power under Section 29 of Electricity (Supply) Act, 1948, issued Techno-Economic Approval to establish 200 MW hydro generation project over river Alaknanda, in its meeting dated 6.11.1982, subject to environmental clearance from Ministry of Environment. Initially project was clubbed with some other projects but later it was segregated. A separate Environment Impact Assessment (EIA) was made with regard to SHEP on 9.2.1985. Consequently, MoEF granted EC vide letter dated 03.05.1985. Project involved diversion of 338.38 hectares of forest land which was granted by Forest Department vide letter dated 15.04.1987. Subsequently, Electricity Board proposed to increase capacity from 200 MW to 330 MW which was approved by Central Electricity Authority and Planning Commission also granted investment approval. The project could not make any effective progress due to paucity of funds with State Electricity Board. State Government entered into a Memorandum of Understanding (MOU) with M/s Duncan Industries Ltd. on 27th August, 1994 for development of project. M/s Duncan Industries Ltd. in terms of the MOU established a generating company „Duncan North Hydro Power Co. Ltd.‟. Energy Department of Uttar Pradesh wrote to MoEF vide letter dated 04.09.1997 to transfer EC in favour of the said company. M/s Duncan submitted revised EIA and conveyed that the project of enhanced capacity had to be transferred to M/s Duncan. MoEF consequently transferred EC to M/s. Dunan on 27.07.1999. Central Electricity Authority also granted Techno Economic Clearance vide letter dated 14.06.2000 to Duncans. M/s. Duncan also gave up project after carrying out some work and then it was substituted by M/s. Alaknanda Hydro Power Company Ltd. (AHPCL) in whose favour also EC was transferred by MoEF vide letter dated 27.03.2006. Writ 322 Petition was filed in 2009 in High Court of Uttarakhand at Nainital challenging order enhancing capacity to 330 MW. Writ Petition was disposed of on 19.04.2011 permitting M/s. AHPCL to approach MoEF for a specific decision as to the clearance for increased capacity of generation and increased height of the dam. MoEF in its turn clarified that transfer letter dated 27.03.2006 was for 330 MW and communicated its decision dated 03.08.2011. It was challenged in Writ Petition no. 68 of 2011 i.e., a PIL which was disposed of by order dated 3.11.2011 directing M/s AHPCL to place the matter before MoEF again and Ministry was directed to hold a public hearing. That is how matter came before Supreme Court in Appeal by AHPCL. Court examined the matter and disposed of by issuing various directions on the subject of safety of dam, safety and security of the people, muck management and disposal Catchment Area Treatment. Court also expressed concern over mushrooming of large number of hydroelectric projects in State of Uttrakhand and its impact on Alaknanda and Bhagirathi river basins. Taking note of recent tragedies/calamities suffered by the people of Uttrakhand, Court issued certain directions in para 52 of the judgment which included that no further EC or forest clearance be granted for any hydro-electricity power project in State of Uttrakhand until further order and on further examination by expert committee to be constituted by MoEF.

472. In Godrej & Boyce Mfg. Co. Ltd. & Another vs. State Of Maharashtra , (2014)3SCC430, a question arose, "whether disputed land was a forest land", and further, "whether constructions already raised in last more than half a century should be directed to be demolished". M/s. Godrej & Boyce herein referred to as GBMCL, by registered deed of conveyance dated 30.07.1948, acquired land in Vikhroli in Salsette taluka in Maharashtra. Land belonged to one Nowroji 323 Pirojsha, (successor in interest of Framjee Cawasjee Banaji) who was given a perpetual lease/kowl for the land by Government of Bombay on 07.07.1835. Land was described in the perpetual lease/kowl as "waste land". The dispute raised before Court related to Survey Nos. 117,118 and 120 covering area of 133 acres and 38 gunthas of land. On 27.08.1951, Legislative Assembly of State of Bombay passed Salsette Estates (Land Revenue Exemption Abolition) Act, 1951 which came into force on 1.03.1952. It provided that waste lands granted under a perpetual lease/kowl, not appropriated or brought under cultivation before 14.08.1951, shall vest in and be the property of the State. State Government claimed that disputed property has vested in it under Section 4 of the aforesaid Act which was challenged by GBMCL in Suit No. 413 of 1953, filed in Bombay High Court seeking a declaration that it was the owner of the disputed land. Suit, though contested by Government but ultimately decided by a consent decree on 8.01.1962 to the effect that except for an area of 31 gunthas, all other land was appropriated and brought under cultivation by Godrej before 14.08.1951 and are the property of Godrej. In 1967, a development plan for the city of Bombay was published. Next development plan was published in 1991. In both development plans, disputed land was designated as „R‟ i.e. „Residential‟. On publication of the first development plan, Godrej applied for construction of residential buildings which was allowed. It raised four such buildings. In 1976, Urban Land (Ceiling and Regulation) Act, 1976 came into force. The disputed land became excess land being beyond ceiling limit. Godrej applied for exemption which was allowed by State Government. Again, Godrej applied for further construction of multi storey buildings which was granted and constructions were made resulted in more than 40 multi-storeyed residential buildings on the 324 disputed land. In 1975, State Legislature enacted Maharashtra Private Forests (Acquisition) Act, 1975 . In 2006, Forest Authorities issued notices to M/s. Godrej to stop construction on the ground that disputed land was affected by the reservation of a private forest and hence no construction could be carried out without permission of Central Government under FC Act, 1960 . This notice was challenged in High Court but Writ Petition was dismissed and then came up in appeal before Apex Court. The first question was, „whether land is not "forest‟ within the meaning of Section 2 (c-i) of the Private Forests Act‟. The question was answered in favour of M/s Godrej. In Para 48, Court said "Under the circumstances, by no stretch of imagination can it be said that any of these disputed lands are „forest‟ within the primary meaning of that word, or even within the extended meaning given in Section 2 (c-i) of the Private Forests Act." Thereafter, question of notice was decided in favour of M/s Godrej. The next question considered was with regard to decision of Government for demolition even if the land held to be forest land. Court said that the broad principle laid down by Supreme Court is not in doubt. An unauthorized construction, unless compoundable in law, must be razed. Court referred to MI Builders case (supra) where order of demolition was passed; Pleasant Stay Hotel And Another vs. Palani Hills Conservation , (1995)6SCC127 wherein sanction was granted for two floors but 7 floors were constructed and Court held that 5 floors constructed illegally, should be demolished; and Pratibha Co-operative Housing Society Ltd. vs. State of Maharashtra , (1991)3SCC341, where also 8 floors were constructed in violation of FSI norms and hence demolition order of 6 floors completely and 7th floor partially was issued. However, in the case of Godrej, Court held that the above directions had to be given considering various circumstances and practical application 325 of the principle. Municipal authorities and builders conspiratorially join hands in violating laws but the victim is an innocent purchaser or investor who pays for mal-administration; where activities have undergone for several decades, various permissions have been granted by statutory authorities and innocent buyers/purchasers have believed on state sanctions, such innocent buyers deserve to be protected.

473. In Municipal Corporation of Greater Mumbai and Others vs. Kohinoor CTNL Infrastructure Company Private Ltd. , (2014)4SCC538, issue of minimum recreational/amenity open spaces and other amenities including safety in respect of high rise/multi storied buildings was considered. Reduction of recreational area, height of the building vis-a-vis width of the roads, population of the area having impact on the traffic and height of the building resulting in fire hazards and safety problem, were all pointed out and non-application of mind and lack of consideration on these aspects by concerned statutory bodies was deprecated. With regard to open space/recreational area, Court said that it cannot be reduced to the minimum provided else it will violate Fundamental Right to Healthy Environment under Article 21 of the Constitution. Similarly, if height is increased causing fire hazard that also cannot be permitted. Court held that the human life cannot be made to suffer only on the ground that in redevelopment scheme sufficient access cannot be provided for fire engines to enter the plot from one side. Not providing a minimum space of six meters which makes room for the fire engine to access the building, amounts to violation to Right to Life and equality to the residents of these buildings by not providing the same standard of safety to them which are available to residents of all buildings. Court directed fire department that it must insist upon the builders of all buildings to get certification of at least once in six months 326 that the access to the building, the internal exits and the internal firefighting arrangements are maintained as per the expectations under the DCR, the norms of the fire department and must check them periodically on its own. Court also deprecated permission of construction of high-rise buildings creating congestions.

474. In Goa Foundation vs. Union of India & Others , (2014)6SCC590, relying on interim report dated 15.03.2012 submitted by Justice Shah Commission to Ministry of Mines, Government of India recording its findings in respect of illegal Mining of iron ore in violation of Forest (Conservation) Act, 1980 (hereinafter referred to as „ FC Act 1980‟), Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as „ MMDR Act, 1957 ‟), Mineral Concession Rules 1960 (hereinafter referred to as „MC Act, 1960‟), EP Act, 1986 , Water Act, 1974 , Air Act, 1981 and Wild Life (Protection) Act, 1972 (hereinafter referred to as „WLP Act, 1972‟), Goa Foundation came to Court by filing Writ Petition under article 32 of the Constitution, in Supreme Court and made a prayer that direction be issued to the Respondents to prosecute all those who have committed offences under different laws and are involved in pilferage of State revenue through illegal mining activities in State of Goa, including public servants who have aided and abated the offences. Goa Foundation also prayed that an independent authority be appointed with full powers to take control, supervise and regulate mining operations in State of Goa and to ensure implementation of laws. Lastly, Goa Foundation also prayed for some incidental and consequential reliefs. Entertaining Writ Petition, Supreme Court on 05.10.2012, issued notice directing Central Empowered Committee to submit report on the issues raised in the Writ Petition. Supreme Court further directed that, till further orders, all mining operations in the leases identified in the 327 report of Justice Shah Commission, transportation of iron ore and manganese ore from those leases, whether lying at the mine-head or stockyards, shall remain suspended, as recommended in the said report. Simultaneously, some mining lessees of State of Goa and Goa Mining Association had filed Writ Petition in Bombay High Court, (Goa Bench), seeking a declaration that report of Justice Shah Commission is illegal. They also prayed to quash the order issued by State Government, suspending mining operation in State of Goa, pursuant to the aforesaid report. MoEF‟s order dated 14th September, 2012, directing to keep Environmental Clearances to mines, in State of Goa, in abeyance, was also sought to be quashed. On the application moved before Supreme Court, Writ Petitions filed before Bombay High Court, were transferred to be heard in Supreme Court, along with Writ Petition (Civil) No. 435/2012 filed by Goa Foundation. Some Background facts, giving rise to the above matter are, that prior to 19.12.1961, when Goa was a Portuguese territory, the then Government granted mining concessions in perpetuity to certain persons (hereinafter referred to as „concessionaires‟). Goa was liberated on 19.12.1961. MMDR Act, 1957 was made applicable to State of Goa on 1.10.1963. Controller of Mining Leases, on 10.3.1975, issued a notification calling upon every lessee and sub-lessee to file returns under Rule 5 of Mining Leases (Modification of Terms) Rules, 1956 and sent copies of the notification to concessionaires in Goa. The above notification was challenged by concessionaires in Bombay High Court (Goa Bench). Vide judgment dated 29.09.1983, in Vassudeva Madeva Salgaocar vs. Union of India , (1985)1Bom.CR36, Bombay High Court restrained Union of India from treating concessions as mining leases and from enforcing notification against concessionaires. To overcome difficulty arisen due to above judgment, Goa, Daman and 328 Diu Mining Concessions (Abolition and Declaration as Mining Leases) Act, 1987 was passed which received assent of President of India on 23.05.1987. The said act abolished mining concessions and declared that with effect from 20.12.1961, every mining concession will be deemed to be a mining lease granted under MMDR Act, 1957 and that provisions of MMDR Act, 1957 will apply to such mining lease. The above Abolition Act was challenged by lessees in Bombay High Court wherein an interim order was passed permitting lessees to carry on mining operations and mining business in the concessions for which renewal applications had been filed under 24-A of the MC Rules, 1960. The above Writ Petition 177 of 1990, Shantilal Khushaldas and Bros. ( P) Ltd. vs. Union of India was decided by Bombay High Court vide judgment dated 20.6.1997. The validity of Abolition Act, as such, was upheld, but Court held Section 22(i)(a) of Abolition Act to operate prospectively and not retrospectively. Concessionaires filed appeal in Supreme Court in SLP (C) no. 23827 of 1997, Shantilal Khushaldas and Bros. (P) ltd. vs. Union of India wherein an interim order was passed on 2.3.983 permitting concessionaires to carry on mining operations and mining business in the mining areas for which renewal applications were made but imposing a condition that lessees would pay to the Government, dead rent from the date of commencement of Abolition Act. When appeal was pending, Central Government appointed a Commission under Section 3 of Commissions of Inquiry Act, 1952, by notification dated 22.11.2010, to enquire into and determine nature and extent of mining, trade and transportation, done illegally or without lawful authority, of iron ore and manganese ore, and the losses therefrom; and also, to identify the person etc., engaged in such illegal activities. The term of reference contained four aspects. Justice Shah Commission was constituted in view of 329 various reports received from various State Governments regarding widespread mining of iron and manganese ore, in contravention of MMDR Act 1957, FC Act 1980, EP Act 1986 and rules and guidelines issued thereunder. Justice Shah submitted an interim report on 15th March, 2012 to Ministry of Mines, Government of India which was tabled on Parliament along with an Action Taken Report. State Government of Goa passed an order on 10.9.2012, suspending all mining operations in State of Goa, with effect from 11.9.2012. Consequently, District Magistrates in State of Goa, banned transportation of iron ore in their respective Districts. Director of Mines and Geology, ordered verification of mineral ore which was already extracted, and also issued show cause notices on 13.9.2012 to about 40 mining leases. On 14.9.2012, MoEF issued an order keeping in abeyance all ECs granted to mines in State of Goa. In this backdrop, Goa Foundation came in Supreme Court and other litigation arose as already stated. Report of Commission was challenged primarily on the ground of violation of Principles of the Natural Justice. Mining lessees argued that they were not given any opportunity of hearing in the Inquiry conducted by the said Commission and, therefore, Principles of Natural Justice have been violated. Supreme Court recorded stand of Government of Goa that no action will be taken against mining lessees only on the basis of findings recorded in the report of Justice Shah Commission but it would make its own assessment of facts after giving opportunity of hearing to all concerned parties and in that view of the stand taken by State Government, Supreme Court, in para 14 of judgment, observed that it is not inclined to quash Justice Shah Commission‟s Report on the ground of violation of Principles of Natural Justice but also would not direct to prosecute lessees only on the basis of findings recorded in the said report. However, 330 looking to the serious dispute raised in the matter pertaining to environment, Supreme Court proceeded to examine legal and environmental issues raised in the Report of Justice Shah Commission. The first issue was regarding continuance of leases, as deemed renewed. Court held, in para 28 of judgment, that deemed mining leases of the then lessees in Goa, expired on 22.11.1987, under sub-section (1) of Section 5 of Abolition Act. The maximum of 20 years renewal period of deemed mining leases in Goa, as provided in sub-section (2) of Section 8 of MMDR Act 1957 read with sub-rules (8) and (9) of Rule 24-A of MC Rules 1960, expired on 22.11.2007. The next question was, dumping of reject, tailing or waste, whether can be kept beyond lease area. This question was answered in negative i.e., against the stand taken by mining lessees. Court said (i) a holder of mining lease does not have any right to dump any reject, tailings or waste in any area outside the leased area of the mining lease on the strength of a mining lease granted under MMDR Act, 1957 and rules framed thereunder. Even if such area is outside the leased area of mining lease, belong to State or any private person, but if mining lease does not confer any right whatsoever on the holder of a mining lease to dump any mining waste outside the leased area, he will have no legal right whatsoever to remove his dump, overburden, tailings or rejects and keep the same in an area outside the leased area. Dumping of waste materials, tailings and rejects, outside leased area, would be without valid authorisation under the lease deed. In view of Section 9(2) of MMDR Act, 1957, if mineral is removed or consumed from the leased area, holder of mining lease, has to pay royalty. The term „mineral‟ includes tailings or rejects, excavated during mining operations. Rule 64-C of MC Rules, 1960, firstly, did not permit dumping of tailings or rejects in any area outside the leased area and 331 even otherwise if a rule goes beyond what the section contemplates, the rule must yield to the statute as held in Central Bank of India vs. Workmen, AIR1960SC12, therefore, Rule 64-C of the MC Rules, 1960, if suggests dumping of tailings or rejects outside the leased area, it must give way to section 4 of MMDR Act, 1957 which does not authorise dumping of minerals outside the leased area. The said Rule must give way to section 9 of MMDR Act, 1957 which does not authorise removal of minerals, outside the leased area, without payment of royalty. Even Rule 16 of Mineral Conservation and Development Rule 1988 (hereinafter referred to as „MCD Rules, 1988‟) does not permit dumping of overburden and waste materials, obtained from mining operation, outside the leased area. The lessees also cannot be allowed to dump overburden tailings or rejects in the area owned by them for the reason that most of the land, owned by lessees, is located in the forest area where non-forest activities such as mining is not permissible in view of section 2 of FC Act, 1980 and it also requires prior EC under EP Act, 1986 read with rule 5 (3) of EP Act, 1986 . For dumping of mining waste on the private land, Court said that prior clearance of Central Government under notification issued under Rule 5 (3) of EP Rules, 1986 would be necessary. Justice Shah Commission found that despite restriction on mining activities inside National Parks, Sanctuaries and other protected and eco-sensitive areas, mining activities have been permitted within 10 km and inside the national parks, sanctuaries and protected area. Thus, Court considered next question as to within what distance from the boundaries of national parks and wildlife sanctuaries mining is permissible or not in the State of Goa. Answering this question, Court found that State of Goa has taken a clear stand that no mining operations were allowed inside any National Park or Wildlife Sanctuaries hence question to this extent did not require 332 any adjudication. Next question was "whether mining could have been permitted or could be permitted within a certain distance from the boundaries of national park or wildlife sanctuary in the State of Goa". Answering it, Court said that the argument advanced on behalf of lessees that until a notification is issued under EP Act, 1986 and rules framed thereunder prohibiting mining activities in an area outside the boundaries of a national park/wildlife sanctuary, no mining can be prohibited, is misconceived. Here Court relied on article 21 of the constitution which guarantees right to life and further refers to a three Judge Bench Judgment in Noida Memorial Complex near Okhla Bird Sanctuary, In Re, (2011)1SCC744, where it was held that environment is one of the facets of the right to life guaranteed under Article 21 of the Constitution. Environment is, therefore, a matter, directly under the Constitution and if Court perceives any project or activity as harmful or injurious to the environment, it would feel obliged to step in. Then, with regard to permissible mining activities, Supreme Court referred to order dated 4.8.2006 in T.N.Godavarman Thirumulpad vs. Union of India , (2010)13SCC740, and 4.12.2006 in Goa Foundation vs. Union of India , (2011)15SCC791, and said that the above orders make it clear that grant of temporary working permits should not result in any mining activities within safety zone, around National Parks and Wildlife Sanctuaries, and as an interim measure, 1 km safety zone was to be maintained. Since the said orders were not varied subsequently, Supreme Court directed that the said order have to be followed and there will be no mining activity within 1 km safety zone around National Park and Wildlife Sanctuary in State of Goa.

475. The contention advanced on behalf of Goa foundation, that within 10 kms from the boundaries of national park or wildlife sanctuary, no 333 mining activity can be permitted, was returned by Supreme Court holding that no such order was issued either in Goa Foundation vs. Union of India (supra) or elsewhere. Court further referred to EP Rules, 1986 and said that until Central Government takes into account various factors mentioned in sub-rule 1, follows procedure laid done in sub-rule 3 and issues a notification under rule 5 prohibiting mining operations in a certain area, there can be no prohibition under law to carry on mining activity beyond 1 km of the boundaries of national parks or wildlife sanctuaries. The issue of the distance, with regard to mining activities qua National Park and Sanctuaries, was decided accordingly. The next question was regarding transfer or amalgamation of lease for which Justice Shah Commission observed that Rule 37 and 38 of MC Rules, 1960 were violated. Here State Government took a stand that there was a practice prevailing in State of Goa that a mining lease, by a person other than lease holder, can be operated. Deprecating it, Supreme Court said that rules 37 and 38 clearly prohibit such transfer or amalgamation unless permitted specifically by State Government and directed State Government not to allow such activities in violation of rules 37 and 38. Court also found from CEC‟s Report that there was no effective checks and measures with regard to production and transportation of mineral from the mining leases in the State of Goa, hence there was every possibility to believe that excess quantity of minerals were extracted and transported. Court also found existence of Goa (Prevention of Illegal Mining, Storage and Transportation of Minerals) Rules, 2013 but non- observance thereof by the Authority. It directed State Government to enforce above rules, strictly.

476. The next question related to environment. "To what extent, mining has damaged environment in Goa" and "what measures are to be taken 334 to ensure intergenerational equity and sustainable development". In this regard, Court vide order dated 11 and 12.11.2013 ( Goa Foundation vs. Union of India , 2014(6)SCC738) constituted an Expert Committee to conduct, a macro-EIA study, and propose sealing of annual excavation of iron ore in State of Goa, considering its iron ore resources, carrying capacity, keeping in mind Principles of Sustainable Development, Intergenerational Equity and all other relevant factors. The said Committee submitted report dated 14.3.2014 indicating that economy of Goa depends upon tourism, iron ore mining, besides agriculture, horticulture and minor industries. Commenting upon damage to environment in State of Goa, Expert Committee said that production of iron ore has drastically jumped on, from 14.6 million tons in 1941 to 41.17 million tons in 2010-2011. This has led to massive negative impact on all ecosystems leading to enhanced air, water and soil pollution, affecting quality of life, across Goa. With regard to sustainability of iron ore mining in Goa, Expert Committee opined that mining at the rate of 20 to 27.5 million tons per annum may be sustainable in State of Goa. Supreme Court referred to a report of Indian School of Mines, Dhanbad (hereinafter referred to as „ISM‟), who was entrusted, by MoEF, to carry out regional impact assessment study of mining in Goa region. In the said report, ISM recommended a cap of 24.995 MT per annum on the basis of carrying capacity of existing infrastructure of State of Goa. Relying on the said report, Court held that a cap between 20 to 27.5 MT per annum should be fixed for excavation of iron ore in State of Goa. Court also found that Goa State Pollution Control Board (Goa PCB) has immense powers under Air Act, 1981 and Water Act, 1974 but despite that, iron ore production in State of Goa has led to massive negative impact on all ecosystem leading to enhanced air, soil and water pollution 335 affecting quality of life across State of Goa, and Goa PCB has miserably failed in discharge of its statutory functions. Supreme Court‟s observations are, "Rather, it appears that the Goa State Pollution Control Board, though conferred with immense statutory powers, has failed to discharge its statutory functions and duties". Court directed that Goa PCB would exercise strict vigil and monitor water and air quality and if lessees failed to conform the prescribed norms, Goa PCB must not hesitate in closure of mining operations of such lessees. Further, for restoration of environment, Court directed that 10% of sale proceeds of all iron ore, excavated in State of Goa, and sold by lessees, would be appropriated towards „Goan Iron Ore Permanent Fund‟, constituted for the purpose of sustainable development and intergenerational equity.

477. The next question, "whether mining in future should be allowed by granting leases in auction or otherwise", was answered by noticing observations in Centre for Public Interest Litigation vs. Union of India (2012)3SCC1, that "State of the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good." Court also noticed observations of constitution bench in Natural Resources Allocation, In Re, Special Reference No. 1 of 2012, (2012)10SCC1 that auction, despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources, and therefore, every method other than auction cannot be struck down as ultra vires of the constitutional mandate. It is for State Government to decide as a matter of policy in what manner leases of 336 mineral resources would be granted but this should be in accordance with statutory provisions i.e., MMDR Act, 1957 and rules framed thereunder by taking a policy decision. Supreme Court also quoted opinion of four Judges out of five Judges, in Natural Resources Allocation (supra), (in para 149), that alienation of natural resources is a policy decision and the means, adopted for the same, are, thus executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit, maximising private entrepreneurs, adoption of means other than those that are competitive and maximise revenue, may be arbitrary and face wrath of Article 14 of the Constitution. Hence no hard and fast method ought to be laid by Court but judicial scrutiny of such matter would depend on fact and circumstances in each case. Supreme Court also held that the order issued by Government of Goa suspending mining operations cannot be quashed since in any case renewal of deemed mining leases expired on 22.11.2007 and any mining thereafter was illegal. Therefore, order dated 10.9.2012 of Government of Goa and 14.9.2012 of MoEF, will have to continue till decision is taken by State Government to grant fresh leases and MoEF takes decision for granting fresh EC for mining project in accordance with law. Supreme Court ultimately issued directions which are briefly stated in para 87 and 88 of the judgment. The above judgment shows that for remedy to the damaged done to environment, 10% of sale proceeds of the subject i.e., goods and in this case mined iron ore, was required to be paid by lessees who excavated the said ore, illegally. The amount collected was to be kept in a separate fund, and to be consumed by appropriate authorities for sustainable development and intergenerational equity. Further, here environment 337 compensation was determined at 10% in view of the fact that mining cannot be stopped, and would continue as providing revenue to Government and heavy profits to illegal minors. Further, environment compensation was determined on the rate of sale proceeds i.e., selling rate of mineral.

478. In Animal Welfare Board of India vs. A. Nagaraja & Others , (2014)7SCC547 (order dated 07.05.2014 passed in Civil Appeals No. 5387/2014 with Nos. 5388/2014, 5389-90/2014, 5391/2014, 5392/2014, 5393/2014 and 5394/2014, Writ Petition (C) No. 145/2011, TCs Nos. 84-86, 97-98 and 127/2013) (commonly known as Jallikattu matter), rights of animals under Constitution of India, laws, culture, tradition, religion and ethology arising from the events held in the States of Tamil Nadu and Maharashtra, namely, Jallikattu, bullock cart races etc. came up for consideration. Issue was examined in the light of provisions of Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as „ PCA Act, 1960 ‟); Tamil Nadu (Regulation of Jallikattu) Act, 2009 (hereinafter referred to as "TNRJ Act, 2009") and notification dated 11.7.2011 issued by Government of India under Section 22(ii) of PCA Act, 1960. The leading appeal had arisen from judgment of Madras High Court (at Madurai), dated 09.03.2007 passed in K. Muniasamythevar v. Supt. of Police, (2007)5MLJ135. Some other Writ Petitions were also filed by some organizations working against cruelty to animals wherein Notification dated 11.07.2011 was challenged and the said Writ Petitions were transferred to Supreme Court. Another SLP No. 13199/2012, challenged Bombay High Court‟s order dated 12.03.2012 passed in Gargi Gogoi v. State of Maharashtra, PIL(L) No. 28/2012. Bombay High Court has upheld MoEF Notification dated 11.07.2011 and corrigendum issued by Government of Maharashtra, dated 24.08.2011 338 prohibiting all Bullock-cart races, games, training, exhibition etc. A review application was also filed but dismissed by Bombay High Court on 26.11.2012 and this was also challenged in SLP No. 4598/2013. The events of Jallikattu or Bullock-cart races etc., were challenged as constituting cruelty to animals alleging that there is no historical, cultural or religious significance, either in State of Tamil Nadu or Maharashtra and in any case provision of PCA Act, 1960 would supersede such practices and must be observed and enforced strictly. Court reminded a word of caution and concern and said in para 15 that the issue raised had to be examined, primarily keeping in mind welfare and well-being of the animals, not from the stand point of the Organizers, Bull tamers, Bull Racers, spectators, participants or respective States or Central Government, since a welfare legislation of a sentient being, over which human beings have domination, was being dealt with. Court would apply, in deciding the issue, standard of "Species Best Interest", subject to just exceptions, out of human necessity. Referring to PCA, 1960, Court said that it is a welfare legislation, to be construed keeping in mind the purpose and object of the Act and Directive Principles of State Policy laid down in the Constitution. The above Act should be liberally construed in favour of weak and infirm. Court should be vigilant to see that benefits conferred by remedial and welfare legislations are not defeated by subtle devices. Court has got the duty that, in every case, where ingenuity is expanded to avoid welfare legislations, to get behind the smoke-screen, and discover the true state of affairs. Court can go behind the form and see substance of the devise for which it has to pierce the veil and examine whether the guidelines or regulations are framed so as to achieve some other purpose than the welfare of animals. Regulations or guidelines, whether statutory or otherwise, if they purport 339 to dilute or defeat welfare legislation and constitutional principles, Court should not hesitate to strike them down so as to achieve ultimate object and purpose of welfare legislation. PCA Act, 1960 , being welfare legislation, would over-shadow or override any tradition and culture, if any. Referring to earlier judgment in N.Adithayan v Thravancore Dewaswom Board & Others , (2002)8SCC106 (para 18), Court reiterated following extract:

479. Court also quoted from Isha-Upanishads, saying "The universe along with its creatures belongs to the land. No creature is superior to any other. Human beings should not be above nature. Let no one species encroach over the rights and privileges of other species." Referring to international approach to animal welfare, Court observed that there is no international agreement which ensures welfare and protection of animals. Even United Nations, all the years, has sought to safeguard only rights of human beings and not the rights of other species like animals. Castigating this approach of international community, Court said "there has been a slow but observable shift from anthropocentric approach to more nature‟s right centric approach in International Environmental Law, Animal Welfare Laws etc." This development was noticed to have proceeded in three stages; (i) First Stage: Human self-interest reason for environmental protection, referring to some instruments executed during the last century, i.e., Declaration of the Protection of Birds Useful to Agriculture (1875), Convention Designed to Ensure the Protection of 340 Various Species of Wild Animals which are Useful to Man or Inoffensive (1900), Convention for the Regulation of Whaling (1931) which had objective of ensuring health of the whaling industry rather than conserving or protecting whale species. Attitude behind the above instruments of the treaties was assertion of an unlimited right to exploit natural resources which derived from their right as sovereign nations; (ii) Second Stage: International Equity-In this stage we saw extension of treaties beyond requirements of present generation to also meet needs to future generations of human beings; and (iii) Third Stage: Nature‟s own rights- Here Court referred to UNEP Biodiversity Convention (1992). Having said so, it was held that Supreme Court in India had accepted and applied eco-centric principles and for this referred to its earlier orders in T.N. Godavarman Thirumulpad vs. Union of India & Others (2012)3SCC77; T.N. Godavarman Thirumulpad vs. Union of India & Others (2012)4SCC362 and Centre for Environmental Law World Wide Fund India vs. Union of India & Others (2013)8SCC234. Based on eco-centric principles, rights of animals have been recognized in various countries. In the above backdrop, Court said: "when we look at the rights of animals from national and international perspective, what emerges is that every species has an inherent right to live and shall be protected by law, subject to exception provided out of necessity. Animal has also honour and dignity which cannot be denied arbitrarily, its rights and privacy have to be respected and protected from unlawful attacks." Ultimately, Court held that the events like Jallikattu, bullock cart race, etc. are illegal and violative of Sections 3 , 11(1)(a) and 11(1)(m)(ii) of PCA Act, 1960. Court also upheld MoEF Notification dated 11.07.2011.

480. In Gulf Goans Hotels Company Limited & Another vs Union of India & Another (2014)10SCC673, (order dated 22.09.2014 in Civil 341 Appeals No. 3434-35/2001 with Nos. 3436-39/2001), owners of Hotels, Beach Resorts and Beach Bungalows in Goa facing threat of demolition of their properties claiming to be in existence at the respective places for last several decades, approached Supreme Court for protection of their properties. Background facts are that Goa Foundation, a non- Governmental body, claiming to be dedicated to the cause of environmental and ecological, filed a Writ Petition seeking demolition of alleged illegal constructions raised by the above hoteliers, resort owners etc. Simultaneously, some orders of demolition were passed by the Authorities which were challenged by owners of the property in Bombay High Court. Vide judgment dated 13.07.2000, Bombay High Court upheld demolition orders. Hence, matter came to Supreme Court. The orders of demolition were issued on the ground that constructions were raised between 90 to 200 meters from High Tide Line (HTL), though constructions within 500 meters of HTL were prohibited except in rare situations where constructions between 200 to 500 meters from HTL may be permitted by Competent Authority subject to observance of certain conditions. These constructions were raised before 19.02.1991, i.e., enforcement of Coastal Regulation Zone (CRZ) Notification dated 19.02.1991. The owners of property contended that at the time when constructions were raised prohibition was only within 90 meters from HTL and no construction was raised by property owners within the said range. On the contrary, authorities and complainants, justifying demolition, relied on a letter dated 27.11.1981 issued from the office of Prime Minister, „Guidelines issued in 1983 (Environmental Guidelines for Development of Beaches, July 1983),‟ order dated 11.06.1986 of Under Secretary, Ministry of Tourism addressed to Chief Secretary, Government of Goa, constituting an Inter-Ministerial Committee for considering 342 Tourist Projects within 500 meters and Notification dated 22.07.1982 of Governor setting up Ecological Development Council for Goa, for scrutiny of beach construction within 500 meters of HTL. A question was raised „whether above letter and guidelines satisfy requirement of law, authorizing authorities to demolish disputed property‟. Observing that protection of environment in the light of International conventions and resolutions as also various authorities of Supreme Court, is a matter of prime importance and concern but in the absence of any law, a person cannot be deprived of his property. Court said "violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986......".

481. In B.S. Sandhu vs. Government of India & Others , (2014)12SCC172, (order dated 21.05.2014 in Civil Appeals No. 4682- 83/2005 with Nos. 4684-85, 4798-4800/2005, SLPs(C) No. 19226 and 20235/2013), strictly relying on a Notification under Section 3 of Punjab Land Preservation Act, 1900, Court held that it covers forest and non- forest land and unless a specific finding is recorded that disputed property or non-forest activities are carried out in forest land, a prohibitory order by a High Court was not correct. Court held that FC Act, 1980 was enacted to check further deforestation and would apply to all forest irrespective of nature of ownership or a classification that the land must be a forest land.

482. In State (NCT of Delhi) vs. Sanjay , (2014)9SCC772, (order dated 04.09.2014 in Criminal Appeals No. 499/2011 with Nos. 2105-12/2013), authority of Police and other law enforcement agencies for prosecution 343 under Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as „ MMDR Act, 1957 ‟) was challenged and considered. Issue for consideration was „whether Section 21 and 22 of the aforesaid Act would operate as bar against prosecution of a person who has been charged with allegations which constitute offences under Section 379/114 and other provisions of IPC , 1860. In other words, „whether MMDR Act, 1957 , explicitly or impliedly, excludes provisions of IPC when act of an accused is an offence under both statutes. The contention was that the offence, if any, committed under the provisions of MMDR Act, 1957 but no complaint had been made, then no cognizance can be taken in IPC and since the offence is covered by MMDR Act, 1957 , provisions of IPC cannot be resorted to. Considering the above question, Court said that mining activity also cause and destruct environment if conducted in absence of proper scientific methodology; lack of proper scientific methodology for river sand mining have led to indiscriminate sand mining; and weak governance and corruption have led to widespread illegal mining. Court referred to UNEP Global Environmental Alert Service report, stating in reference to India, that sand trading is a lucrative business, and there is evidence of illegal trading broadly under the influence of sand mafias; mining of aggregates in rivers has led to severe damage to river, including pollution and changes in level of pH; removing sediment from river causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site; leads to coarsening of bed material and lateral channel instability; it can change the riverbed itself; removal of more than 12 million tonnes of sand a year from the Vembanad Lake catchment in India has led to lowering of the riverbed by 7 to 15 344 centimeters a year; Incision can also cause alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage; and can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion. Quoting above report of United Nations, impact of sand mining was further discussed in para 34 and 35 of the judgment, as under:

483. Relying on the Doctrine of Public Trust, applied in the context of environment, Court held that natural resources constitute public assets 345 and State is trustee and custodian to protect it, even if proceedings have not been initiated under MMRD Act, 1957 , if a person has extracted minerals unauthorizedly and illegally, it amounts to theft and, therefore, offence is covered under Sections 378 and 379 of IPC, wherein police can take cognizance and Magistrate on receipt of police report is empowered to proceed without waiting for a complaint to be filed by an officer authorized under MMRD Act, 1957 . Court said that dishonest removal of sand gravel and other minerals from river which is property of the State, out of State‟s possession without consent, constitutes an offence of theft. Hence, provisions of MMRS Act, 1957 will not debar police from taking action against persons committing theft of sand and minerals by exercising power under Cr.P.C . and submit a report before Magistrate for taking cognizance against such persons. Court said "any case where there is a theft of sand and gravel from the Government land, the police can register a case, investigate the same and submit a final report under Section 173 of Cr.P.C before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of Cr.P.C". Further in para 73, Court said that "we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC . Hence, for the commission of offence under Section 378 Cr.PC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act ."

484. Goa Foundation vs. Union of India & Others , (2015)1SCC153, (order dated 14.10.2014 in IA No. 86/2014 in Writ Petition (Civil) No. 346 435/2012) is a follow up of earlier decision dated 10.09.2012 reported in (2014)6SCC590. An application was filed by mining proponents claiming that they had extracted 67,285 metric tonnes of iron ore and they should be allowed to lift the same. Referring to the statutory provisions that extracted ore should have been removed within a period of six months, Court did not accept the above request and held that the provisions of Mineral Rules mandate that the excavated mineral ore is liable to be removed by lessee within a period of six months, failing which, after issuance of a notice, same would stand forfeited to the Government. Further, earlier direction of Supreme Court said that all extracted mineral ore contained in the inventory prepared by the Monitoring Committee would vest in the State Government. That being so, the request of mining proponent cannot be accepted.

485. In Muneer Enterprises vs. Ramgad Minerals and Mining Limited & Others , (2015)5SCC366, (order dated 12.03.2015 in Civil Appeal No. 2818/201), an order of transfer of mining lease from original lessee to a third person was challenged on the ground that a lease which was surrendered or found illegal to have not followed law, cannot be allotted by transfer. In para 76 of the judgment, Court said that grant, operation and termination of mining lease is governed by statute, anyone of these factors, i.e., grant of lease or operation of mines based on such grant and termination, either by way of surrender at the instance of lessee or by way of termination at the instance of State should be carried out strictly in accordance with prescribed stipulations of statutes. Referring to Section 19 of MMRD Act, 1957, Court said that any mining lease granted in contravention of the provisions of the said Act or Rules shall be void and would have no effect. The above provision is mandatory. Further, if a mining lease is granted in violation of Section 2 347 of FC Act, 1980, in law it can be said that there is no mining lease in existence. In para 104, Court said, "therefore, for a mining lease to remain valid, twin requirements of the approval of the Central Government under the proviso to Section 5(1) of MMDR Act and Section 2 of the Forest Act of 1980 have to be fulfilled. Therefore, a lessee cannot be heard to contend that such statutory requirements are to be thrown overboard and permitted to seek for such approvals after the expiry of the lease at its own sweet will and pleasure and the time to be fixed on its own and that the operation of the mining lease should be allowed ignoring such mandatory prescription". That being so, nothing could have been further transferred to anyone. Court also seriously deprecated State Authorities acting in violation of law and observed that strict action needed to be taken against them. In para 118 of the judgment, Court said, "in this context, it will be more relevant to state that mines and mineral being national wealth, dealing with the same as the largesse of the State by way of grant of lease or in the form of any other right in favour of any party can only be resorted to strictly in accordance with the provisions governing disposal of such largesse and could not have been resorted to as has been done by the State Government and the Director of Mines and Geology of the State of Karnataka by passing the order of transfer dated 16.3.2002. Such a conduct of the State and its authorities are highly condemnable and, therefore, calls for stringent action against them".

486. In M.C. Mehta vs. Union of India & others , (2015)12SCC764, a complaint of pollution of river Ganga and its cleanliness was raised in Writ Petition No. 3727/1985 filed under Article 32 of the Constitution. Subsequently, petition was transferred to this Tribunal vide order dated 29.10.2014, (2015)12SCC764, with the observations made in paras 19 and 20 as under:

487. In Rajendra Shankar Shukla & others vs. State of Chhattisgarh & others , (2015)10SCC400, (order dated 29.07.2015 in Civil Appeal No. 5769-70/2015 with Nos. 5771-75/2015), certain land owners whose land was acquired for Town Development Scheme, namely, Kamal Vihar Township Development Scheme No. 4, challenged acquisition of land on various grounds including violation of requirement of EC under EIA 2006. Having lost before Single Judge and Division Bench in High Court, land owners came to Supreme Court. The question relating to EC under EIA 2006 was considered as issue no. (vi) in para 116-126. Court held that since land in question was in „critically polluted area‟, the category of the project from „B1‟ would be treated as category „A‟ and Competent Authority to grant EC was MoEF&CC not SEIAA. Hence, EC granted by SEIAA was illegal. Court, however, held, if there is any deviation in land use from proposal as disclosed in the application, a fresh EC would have to be sought by the proponent. In the case, there was a change in land use but not such fresh EC was sought. In the circumstances, Scheme could not have allowed to proceed illegally. In 349 para 126, Court said, "therefore, we are of the opinion that due to the change in the scope of the project, Respondent No. 2 RDA was required to seek sanction for the project from the Central Government. The same has not been done....failed to obtain the environmental clearance requirement which is the mandatory requirement in law for initiating any project by the RDA...town development scheme prepared through incompetent authorities with blatant violation of legal and environmental procedure cannot be the reason for deprivation of constitutional rights of the appellants". Court thus held that acquisition of land will not be valid for an illegal project.

488. In Anirudh Kumar vs. Municipal Corporation of Delhi & Others , (2015)7SCC779, (order dated 20.03.2015 in Civil Appeal No. 8284/2013), issue of noise pollution was raised where two doctors running a pathological lab in a residential building, were causing noise pollution. A direction was sought to restrain them from running such lab. Court held that running of pathological lab by respondent owners creates air and sound pollution rampantly on account of which public residents‟ health and peace is adversely affected. Therefore, public interest is affected and there is violation of rule of law. Appeal was allowed. The respondent owners were directed to close down their establishment, i.e., pathological lab. Municipal Corporation as well as Pollution Control Committee were directed to ensure that no unlawful activities are carried out in residential premises. Commenting adversely upon role of local bodies and environmental regulatory authority, Court, in para 56 and 57, said:

489. It may be worthy to note that pathological lab was running in the basement, ground floor and first floor of the premises while complainant was residing on the second floor of the said building. Initially, complainant approached High Court but it declined to interfere, hence, he came to Supreme Court, where Appeal was allowed and order noted above was passed. The arguments raised on the plea that mixed use was allowed in residential building, Court deprecated and said, "a liberalised provision of mixed use in the residential areas has been adopted adhering to the requisites of the environment while achieving better synergy between work-place, residence and transportation". Court also found that in the garb of running pathological lab, owners were also running a nursing home in the residential area which was not permissible in law. With regard to mixed use, Court referring to the Master Plan, said, "the area/street for mixed use activity should be identified by conducting a study of the impact on the traffic in that area/street in which such mixed use activity is likely to take place and also evaluate the environmental needs and impact on municipal services of the area if mixed use is allowed".

490. In Union of India vs. Vijay Bansal & Others , (2015)14SCC424, appeal against Punjab and Haryana High Court, was considered wherein order directing State of Haryana to apply to Expert Appraisal Committee for determining Terms of Reference (TOR) and get Environmental Clearance Impact Assessment Report (EIAR) required for the entire mining area falling within the fragile Shivalik Ranges of the Himalayas and then complete process of public consultation and get a final Environmental Impact Assessment Report prepared, was challenged on the ground that application for grant of EC can be filed only by the party, applying for mining lease, and not by Government as such. Reliance was placed upon MoEF‟s notification dated 04.04.2011, wherein it was clarified that application for seeking EC shall be made by PP. Even Government of India before Supreme Court took the same stand and consequently, appeal was allowed and High Court‟s order was set aside to the extent of above direction, issued to State of Haryana.

491. In V.C. Chinnappa goudar vs. Karnataka State Pollution Control Board and Another, (2015)14SCC535, an issue was raised that Government officer/public servant is entitled for protection under Section 197 CrPC and without such sanction, Magistrate cannot take cognizance even if, he is accused of an offence under section 48 of Water Act, 1974. High Court of Karnataka rejected this contention and in appeal Supreme Court confirmed the above view, observing in para 8 and 9, as under:

492. In Vardah Enterpirises Private Limited vs. Rajendra Kumar Razdan and Others, (2015)15SCC352, issue of construction in the alleged restricted area of Fatehsagar and Pichola Lakes in Udaipur was in question. Rajasthan Government issued a notification dated 17.01.1999 under Section 171 of Rajasthan Municipalities Act, 2009, declaring area around Fatehsagar and Pichola Lakes in Udaipur as "No Construction Zone". Another notification was issued on 10.12.1999, superseding the earlier one, declaring area around Fatehsagar and Pichola Lakes in Udaipur as „Controlled Construction Area‟. W.P. (C) No. 427 of 1999 was filed by one Rajendra Kumar Razdan in Rajasthan High Court at Jaipur, praying that all constructions, in and around lakes specified in Rajasthan Government notification dated 17.01.1997, be stopped and Government agencies be stopped to carry on harmful and dangerous activities, for maintenance of lives of population in the said area. Writ petition was allowed vide judgment dated 06.02.2007, taking a view that there would be no construction in and around the said lakes and their respective catchment areas; and Statutory Authorities cannot permit any construction activity in the „Controlled Construction Area‟. On the basis of perusal of record, Supreme Court found that the land of appellant which was disputed, did not attract either notification dated 17.01.1997 or 10.12.1999. Consequently, proceedings initiated against appellant 353 M/s. Vardha Enterprises Private Limited were set aside. In another connected matter, where issue of wetland under Wetlands (Conservation and Management) Rules, 2010 was raised, Court held, where statutory permission was already granted, the aforesaid Rules of 2010 will not apply. Further, so long as, there is no wetland notified under the Rules, the prohibition/restriction contained therein, would not be attracted.

493. In Wildlife Rescue and Rehabilitation Centre and Others vs. Union of India and Others , (2016)1SCC716, issue of cruelty upon captive elephants in State of Kerala was raised and referring to WLP Act, 1972 and Kerala Captive Elephants (Management and Maintenance) Rules, 2012, Court issued direction that those Rules and Statutory Provisions should be strictly followed, observed and applied and enforced by the concerned Authorities.

494. In Electrotherm (India) Limited vs. Patel Vipul Kumar Ramjibhai and others , (2016)9SCC300, issue of public hearing before grant of EC in the context of EIA 1994 and EIA 2006 was under

informed Expert Appraisal Committee that while granting EC earlier 354 public hearing for the project was already held on 12.06.2007 and since expansion would be within the existing industrial premises and no extra land would be required, hence an exemption be allowed for public hearing. Expansion project was granted EC by MoEF vide order dated 27.01.2010. This was challenged in Gujarat High Court on the ground that grant of EC for expansion of plant exempting public hearing was not in conformity with the provisions of EIA 2006. High Court held that grant of EC dated 27.01.2010 without any public consultation or hearing was bad since public consultation/public hearing was mandatory requirement under EIA 2006. In appeal, Supreme Court observed that public consultation/public hearing is one of the important suggestions while considering the matter for grant of EC; record show that exemption was allowed on the ground that no additional land will be required and no additional ground water drawl or other features will be necessary. Further, Court observed that so far as requirement of water is concerned, it is a community resource and when expansion was allowed, use of water would definitely be additional of what it was required earlier and, therefore, expansion of project would have entailed additional pollution load due to larger requirement of water. Court referred to the amendment notification dated 01.12.2009 of EIA 2006, wherein no provision for exemption from public hearing was made for holding that public consultation/public hearing was mandatory, Supreme Court relied on its earlier decision in Lafarge Umiam Mining Private Limited vs. Union of India (supra). However, instead of closing the unit, Court permitted unit to continue till public hearing is conducted and observed that if as a result of public hearing, any negative mandate against expansion of the project is to be issued; Competent Authority may ensure scaling down activities to the level which was already permitted by earlier EC dated 355 20.02.2008. This method was adopted only since expansion had already been undertaken and proponent was working with expended capacity hence in the peculiar facts of the case and not as a general proposition of law, Court allowed indulgence though held that public hearing is mandatory.

495. In Anil Hoble vs. Kashinath Jairam Shetye and others , (2016)10SCC701, judgment of this Tribunal was challenged whereby direction for demolition of construction raised in restricted coastal zone was issued. Background facts are that Anil Hoble, appellant raised a commercial building on plot of land bearing Chalta No.1/PTS No.10, Panjim City and Survey No.65/1-A Village Morombio Grande in Merces Panchayat, Goa without obtaining necessary permission from the concerned Authorities. Alleging that construction is detrimental to the coastal ecosystem and river ecosystem; likely to cause pollution of river water due to commercial activities of the bar and restaurant and the construction was raised with political influence in utter violation of CRZ Notification dated 19.02.1991; an application under Section 14 of NGT Act, 2010 was filed before Tribunal. The defence taken was that structure was in existence prior to 19.02.1991 hence would not attract restriction imposed by notification dated 19.02.1991. Tribunal after perusal of record, recorded findings that the defence taken by appellant that the structure was prior to 19.02.1991 was not correct and, thereafter, relying on Bombay High Court‟s judgment in Goa Foundation vs. The Panchayat of Condolim & The Panchayat of Calangut, WP No. 422 of 1998, decided on 13.10.2006, wherein directions were issued to State Authorities to take action against such unauthorized structures and construction put up on the land falling within CRZ-III area in Goa village or town after 19.02.1991, held construction raised by appellant illegal 356 and directed its demolition by the concerned Executive Authority. Appellant was also imposed Rs. 20 lakhs cost of degradation of environment caused due to violation of CRZ Notification dated 19.02.1991. Appellant preferred review which was also rejected by order dated 14.12.2015. In appeal, Supreme Court found that appellant purchased plot vide sale deed dated 03.08.1992 when a small structure at the corner of the said plot was in existence, used as a garage hence the disputed structure admittedly was not there at least upto 03.08.1992 hence, Tribunal rightly found structure post 19.02.1991. Further, CRZ Policy prohibited construction upto 200 metres from High Tide Line as the said zone was treated as „No Development Zone‟, except for repairs of existing authorized structures. Court agreed with the findings of Tribunal that construction was post 19.02.1991 and not prior to 19.02.1991 as pleaded by appellant. In that view of the matter, construction admittedly was contrary to CRZ Regulation as also judgment of Bombay High Court in Goa Foundation vs. The Panchayat of Condolim (supra) and Tribunal in fact, after recording the directions issued by Bombay High Court in Goa Foundation vs. The Panchayat of Condolim (supra) issued consequent directions in the present case also. Court held that the directions of Bombay High Court were imposed, and Authorities were bound by the same to implement and to prevent any breach thereof. Any permission given contrary to the said direction, must be viewed as nullity and non-est, having been given in complete disregard of the directions of the High Court. Consequently, Court upheld the directions for demolition, issued by Tribunal.

496. On the issue of assessment of compensation for damage to environment in the matter of illegal mining, recently Supreme Court in Bajri Lease LOI holders Welfare Society vs. State of Rajasthan and 357 others , SLP (Civil No.) 10584 of 2019 (order dated 11.11.2021) has said that compensation/penalty to be paid by those indulging in illegal sand mining cannot be restricted to be value of illegally mined minerals. The cost of restoration of environment as well as the cost of ecological services should be part of compensation. „Polluter Pays‟ principle as interpreted by this Court means that absolute liability for harm to the environment extends not only to compensate victims of pollution but also cost of restoring environmental degradation. Remediation of damaged environment is part of the process of "sustainable development" and as such the polluter is liable to pay the cost the individual sufferers as well as the cost of reversing the damaged ecology.

497. Fundamental principles culled out from the above binding precedents, can be summarized as under:

498. The current situation in the present matters is that two projects have already been completed i.e., Purushothapatnam LIS, Pattiseema LIS. The third project i.e., Chintalapudi LIS is more than half complete and still in progress. The last project i.e., KGPR Linking Project is in the process of proposal and yet to commence. All these projects apparently, since relate to irrigation besides other, one of the biggest losses suffered is destruction of huge fertile soil of a very high magnitude including topsoil. Also, there is huge extraction of sand from riverbed and river banks.

499. We have already said that State of Andhra Pradesh has agriculture as its basic occupation. Committee reports , referred above , show huge quantity of topsoil, sand and rocks excavated and due to unscientific management, has been dumped without taking any requisite precautions, causing damage to environment.

500. So far as topsoil is concerned, it has got damaged or at least, has lost its character of being a topsoil and rendered unsuitable to serve its basic purpose. Topsoil is the upper, outermost layer of soil, usually top 5 to10 inches (13 to 25 cm). Highest concentration of organic matter and microorganism is found in the top soil. It is said that most of Earth's biological soil activity occurs in the top soil. A composition of top soil includes mineral particles, organic matter, water, and air. Organic matter varies in quantity on different soils. Strength of soil structure decreases with the presence of organic matter, creating weak bearing capacities. Organic matter condenses and settles in different ways under different conditions. In the soil classification system, top soil is known as the "O Horizon or A Horizon," i.e., it is the very top layer of the soil.

501. The study conducted by Chief Soil Survey Officer, Soil and Land Use Survey of India (https://slusi.dacnat.nic.in), salient features of inventory of soil resources in West Godavari district shows that agriculture has dominant area occupying about 4,98,502 ha i.e., 64.4% of the district. 69% of total geographic area is plain land. The area under very deep soil is 75.8% followed by moderately deep soils covering 7.2% and 2.8% is under deep soil. The major part of the district, i.e., about 75% is suitable for cultivation. Report of CGWA, MoWR published by Southern region in Hyderabad in September, 2013 states that district has both, surface and ground water resource potential, principal crop 360 grown in the district is Paddy and other important crops are sugarcane, banana, mango, coconut and tobacco. The soil types mentioned in para 3.2 of the report, reads as under:

502. The quality of ground water is also good. It is stated that ground water in general is suitable for drinking and irrigation purposes. Similarly, regarding East Godavari (District Survey Report, 2018), it is stated that agriculture is the major category covering 5960.63 sq. km., i.e., 46.55% during 2015-16.

503. In a State, where agriculture is major occupation and water availability and quality of soil is good, destruction of top soil is a matter of serious concern and constitutes a major environmental damage. As already said, top soil has the greatest organic matter content and microorganism. Organism matter is what is left after plant roots, stems and leaves decompose. Top soil is made up of carbon, nitrogen, microbes and larger creatures such as worms, beetles and other insects. Fertile top soil also has concentration of nutrients including potassium, phosphorus sand iron. Normally and often, it is said that blacker the top soil is, the richer it is in nutrients and the stronger its earthy smell. Rich, nutritive top soil is able to hold onto more water. Greater nutrients and water availability allow in top soil to be more productive in terms of plant growth.

504. In nutshell, Andhra Pradesh is blessed with a bounty of natural resources, endowed with fertile land, water and conducive agro-climatic conditions. It is an agriculturally-prosperous State. It ranks among the largest producers of food grains, fruits, vegetables, cotton maize, dairy and poultry products in the country. It is leading State in several agro based industries-sugar, edible oil, seafood etc. in such a place, PPs while carrying out projects under examination, have resulted in huge destruction of assets from earth i.e., soil (top soil), sand, and also caused pollution of air, water etc. as reported by Committees in reports. Moreover, fault is greater since PPs have worked in blatant violation of environmental laws. Mandatory provisions have been breached unashamedly and no precautions have been taken to mitigate damage and degradation if protection/preservation as such was not possible. PPs have not felt any hesitation in placing wrong facts even before this Tribunal, this is what has disturbed us most.

505. It is in this backdrop, when environmental compensation is to be determined, it is not only the cost of material lost or illegally extracted which has to be determined but it is damage to the environment due to excavation of huge quantity of material including top soil and damaging the area by removing and disposing unscientifically, and cost likely to be incurred in remediation, which has to be determined. Further pollution caused to water and air also to the extent possible, must be remediated and its cost would also form part of environmental compensation. Some damage to environment is irreversible. Execution of projects illegally i.e., without having EC under EIA 2006, without consent to establish and to operate, without clearance from other authorities is another aspect to contribute its share in computation of compensation. 362

506. From record, two things are very clear i.e., there is digging of huge quantity of top soil, sand etc. and there is complete unscientific management of muck with regard to its storage, disposal etc. Secondly, there is flagrant violation of compliance of mandatory statutory laws with regard to EC by undergoing process provided in EIA 2006, and laws relating to consent from State PCB. These violations are apparent, evident, and shown and demonstrated in various reports submitted by Committees. In fact, on behalf of State of Andhra Pradesh and its authorities, Committee reports have not been seriously disputed or doubted and on the contrary, on the date when we reserved order, it was stated by learned Senior Counsel appearing for State that State Government is agreeable to Committee reports and shall abide by order ultimately passed by this Tribunal.

Environmental Compensation-Assessment/Methodology:

507. The question of assessment of environmental compensation includes the principles/factors/aspects, necessary to be considered for computing/assessing/determining environmental compensation. Besides judicial precedents, we find little assistance from Statute. Section 15 of NGT Act, 2010 talks of relief of compensation and restitution. It confers wide powers on this Tribunal to grant relief by awarding compensation for the loss suffered by individual(s) and/or for damage caused to environment. Section 15 reads as under:

508. Sub- section 1 enables Tribunal to make an order providing relief and compensation to (i) the victims of pollution, (ii) other environmental damage arising under the enactments specified in the Schedule I. Tribunal is also conferred power to pass an order providing relief for restitution of property damaged. Section 15(1)(c) enables Tribunal to pass an order providing relief for restitution of the environment for such area or areas, as Tribunal may think fit. Section 15 sub- section 4 says that Tribunal may divide compensation or relief payable under separate heads specified in Schedules II, having regard to the damage to public health, property and environment so as to provide compensation or relief, (i) to the claimants and (ii) for restitution of the damaged property or environment, as it may think fit.

509. Schedule II of NGT Act, 2010 gives a list of heads under which compensation or relief for damage may be granted. It has 14 heads in total out of which item (a) to (f), (l), (m) and (n) relates to loss, damage 364 etc. sustained to the person or individual or their property. Item (i) to (k) relates to harm, damage, destruction etc. of environment or environmental system including soil, air, water, land, and eco-system. Items (i) to (k) of Schedule II of NGT Act, 2010 are as under:

510. Items (g) and (h) relate to expense and cost incurred by State in providing relief to affected person; and loss caused in connection with activity causing damage. The damage to environment covers a very wide variety of nature as is evident from definition of environment under section 2 (c) which is inclusive and says; „environment includes water, air, and land and the interrelationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property‟.

511. Section 20 of NGT Act, 2010 requires Tribunal to apply principles of sustainable development, the precautionary principle and the polluter pays principle.

512. Thus, broad principles of environmental laws are given but the methodology for assessing/determining compensation is not provided in the statute. Even Rules framed under NGT Act, 2010 are silent on this aspect. Issue of determination of EC is significant in the sense that it should be proportionate to or bears a reasonable nexus with the environmental damage and its remediation/restoration. Similarly in case of compensation to be determined for a victim, it needs to co-relate to 365 injury caused or damage suffered by such person as also cost incurred for treatment/remediation.

513. Taking into consideration multifarious situations relating to violation of environmental laws vis-a-vis different proponents, nature of cases involving violation of environmental laws can be categorized as under:

Authorisation under Solid Waste Management Rules, 2016 and other Rules; and NOC for extraction and use of ground water, wherever applicable, and similar requirements under other statutes.

(ii) Where proponents have violated conditions imposed under statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology.

(iii) Where Proponents have carried out their activities causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc.

514. The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/organisations/associations and group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution. 366

515. Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc.

516. The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partially restoration/remediation.

517. Determination/computation/assessment of environmental compensation must, not only conform the requirement of restoration/remediation but should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of "being punitive". The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.

518. To impose appropriate „environmental compensation‟ for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of „Harmness cost‟. This includes risk assessment. The concept of risk assessment will include human- health risk assessment and ecological risk assessment. U.S. Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of human-health risk assessment, it comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the 367 pollutant are examined and the third step involves integration of effects and exposure assessment to determine risk.

519. Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. Here also we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and whether exposure is likely or not to cause adverse ecological effects. Third step is comprised of two components, i.e., risk assessment and risk description.

520. In totality, problem is multi-fold and multi-angular. Solution is not straight but involves various shades and nuances and vary from case to case. Even Internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied.

521. In India, where commercial activities were carried out without obtaining statutory permissions/consents/clearance/NOC, Courts have determined, in some matters, compensation by fixing certain percentage of cost of project. In some cases, volume of business transactions, turnover, magnitude of establishment of proponent have also been considered as guiding factors to determine environmental compensation.

522. Nature is extremely precious. It is difficult to price elements of nature like light, oxygen (air), water in different forms like rain, snow, vapour etc. When nature is exploited beyond its carrying capacity, 368 results are harmful and dangerous. People do not understand the value of what nature has given free. Recently in Covid-19 wave II, scarcity of oxygen proved its worth. In dreadful second phase of the above pandemic, any amount offered, in some cases, could not save life for want of oxygen. Further, damage to environment, sometimes do not reflect in individuals immediately and may take time but injury is there. In such cases, process of determination of compensation may be different.

523. In an article, „the cost of pollution-Environmental Economics‟ by Linas Cekanavicius, 2011, it has been suggested, where commercial activities have been carried out without consent etc., and pollution standards have been violated, Total Pollution Cost (hereinafter referred to as „TPC‟) can be applied. It combines the cost of abatement of environment pollution and cost of pollution induced environmental damage. The formula comes to TPC(z)=AC(z)+ED(z), where z denotes the pollution level. Further, clean-up cost/remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation.

524. When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user‟s respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally, and it has 369 also to be taken care. Determination/assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be based on a principle which is simple and can be applied easily. In other words, it can be said that wherever Court finds it appropriate, expert‟s assessment can be sought but sometimes experts also go by their own convictions and belief and fail to take into account judicial precedents which have advanced cause of environment by applying the principles of „sustainable development‟, „precautionary approach‟ and „polluter pays‟, etc.

525. Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this Country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.

526. Committee in its reports dated 21.06.2021 and 06.08.2021 has made certain recommendations determining environmental compensation under certain heads. The computation by Committee is based on certain formulas it has suggested. We have to examine mechanism suggested by Committee and also the value provided to factors like constant quotient and value of "R" i.e., Rupee, to find out 370 whether the same satisfy all aspects necessary to determine appropriate environmental compensation. Applying principle of absolute liability, Polluters Pay alongwith Precautionary Principle and sustainable development, it has to be seen whether PPs are liable to pay environment compensation as suggested by Committee and also to undergo other statutory sanctions provided in the statutes including criminal prosecution, or computation of compensation requires some other method.

527. Committee has recommended compensation only in respect of Purushothapatnam LIS and Pattiseema LIS. For other two projects, it has said that it required certain information which was not supplied by concerned PPs hence no recommendation could be made. Committee has computed compensation on certain method i.e., formula but whether the above method is Committee‟s own formulation, or it has adopted already accepted method, is neither clear from the reports nor could be cleared at the time of hearing. We would examine these bases suggested by Committee treating as if it is their own.

528. CPC B Guidelines: CPC B has suggested in a report methodology for assessment of environmental compensation which may be levied or imposed upon industrial establishments who are guilty of violation of environmental laws and have caused damage/degradation/loss to environment. It does not encompass individuals, statutory institutions and Government etc. Report is titled as "Report of the CPC B In-house Committee on Methodology for Assessing Environmental compensation and Action Plan to Utilize the Fund" which was finalized in the meeting held on 27.03.2019. It shortlisted the incidents requiring an occasion for 371 determining environmental compensation. Six such incidents, shortlisted, are:

529. For the instances at item (a), (b) and (c), report says that „Pollution Index‟ (hereinafter referred to as „PI') would be used as a basis to levy environmental compensation. CPC B had already published Guidelines categorizing industries into Red, Orange, Green and White, based on the concept of PI. The PI is arrived after considering quantity and quality of emissions/effluents generated, types of hazardous waste generated and consumption of resources. PI of an industrial sector is a numerical number in the range of 0 to 100 and is represented as follows:

530. Since range of PI is 0 to 100, increase in value of PI denotes increasing degree of pollution hazard from industrial sector. Accordingly, report says, for determining environmental compensation in respect of cases covered by item (a), (b) and (c), it will apply following formula:

531. The formula incorporates anticipated severity of environmental pollution in terms of PI, duration of violation in terms of number of days, scale of operation in terms of micro and small/medium/large industry and location in terms of proximity to the large habitations. A note is also given under the aforesaid formula and it reads as under:

b. N, number of days for which violation took place is the period between the day of violation observed/due date of direction‟s compliance and the day of compliance verified by CPC B/SPCB/PCC. c. R is a factor in Rupees, which may be a minimum of 100 and maximum of 500. It is suggested to consider R as 250, as the Environmental Compensation in cases of violation. d. S could be based on small/medium/large industry categorization, which may be 0.5 for micro or small, 1.0 for medium and 1.5 for large units.

e. LF, could be based on population of the city/town and location of the industrial unit. For the industrial unit located within municipal boundary or up to 10 km distance from the municipal boundary of the city/town, following factors (LF) may be used:

For notified Ecologically Sensitive areas, for beginning, LF may be assumed as 2.0. However, for critically Polluted Areas, LF may be explored in future.

f. In any case, minimum Environmental Compensation shall be ₹ 5000/day.

g. In order to include deterrent effect for repeated violations, EC may be increased on exponential basis, i.e. by 2 times on 1st repetition, 4 times on 2nd repetition and 8 times on further repetitions. 373 h. If the operations of the industry are inevitable and violator continues its operations beyond 3 months then for deterrent compensation, EC may be increased by 2, 4 and 8 times for 2nd, 3rd and 4th quarter, respectively. Even if the operations are inevitable beyond 12 months, violator will not be allowed to operate.

i. Besides EC, industry may be prosecuted or closure directions may be issued, whenever required.

A sample calculation for Environmental Compensation (without deterrent factor) is given at Table No. 1.2. It can be noticed that for all instances, EC for Red, Orange, and Green category of industries varies from 3,750 to 60,000 ₹/day.

Table No. 1.2: A sample calculation for Environmental Compensation Industrial Red Orange Green Category Pollution 60-100 41-59 21-40 Index (PI) Average PI 80 50 30 R-Factor 250 S-Factor 0.5-1.5 L-Factor 1.00-2.00 Environmental 10,000-60,000 6,250-37,500 5,000-22,500 Compensation (₹/day)

532. We find that R which is a factor in Rupees (₹) is taken to be 100 minimum and 500 maximum. It has suggested that R value be taken as average i.e. Rs. 250/-. On what basis this minimum and maximum has been determined and why average is suggested, beyond any comprehension. We do not find any material in the above report which may throw light for taking value of R as above. Similarly, for determining value of S i.e. Factor for Scale of Operation from 0.5 to 1.5, we find no Guidelines as to on what basis, it has been determined and only on the size of the industry, divided in small, medium and large, the said factor has been prescribed. The note further says that minimum environmental compensation would be Rs. 5000/- per day. From table 1.2, we find that in the highest case i.e., large industry, depending on the level of PI, maximum environmental compensation would be Rs. 60,000/- per day and minimum Rs. 10,000/- per day. The above determination excludes the actual loss to the environment and cost of remediation including 374 damage to flora-fauna and human beings. Moreover classification of industries for industrial policy, or for some licensing purpose, banking purpose etc. would be wholly irrelevant for environment. A small industry may be capable of causing much more pollution than medium or even large industry. For example pollution caused by a brick kiln using coal as fuel may be much more than many medium category industries.

533. In respect of items (d), (e) and (f), report says that for determining environmental compensation, one has to consider the matters in two parts, one for providing immediate relief and another long term relief, such as remediation. In such cases, detailed investigations are required from Expert Institutions or Organizations, based on which environmental compensation will be decided. Second part of report is with regard to utilization of environmental compensation fund. For this purpose, report says that CPC B will finalize a scheme for utilization of fund for protection of environment. Certain schemes identified by CPC B for utilization of the said fund are mentioned in para 1.4.1, as under:

534. All the above, except item (e), relate to establishment/infrastructure for monitoring/prevention of pollution which in fact is the statutory duty and function of officials of State PCB and CPC B. It appears that CPC B has attempted to utilize environment fund to meet expenses which is the responsibility of Government. 375

535. Chapter II of report deals with determination of environment compensation for violations of Graded Response Action Plan (GRAP) in NCR. Here a fixed amount of environmental compensation has been recommended in table 2.1, as under:

536. Chapter III considers determination of environmental compensation where a proponent has discharged pollutants in water bodies or failed to prevent discharge of pollutants in water bodies and also failed to implement Waste Management Rules. Laying down Guidelines for determination of environmental compensation in this category, report has referred to Tribunal‟s order dated 06.12.2018 in OA No. 125/2017 and MA No. 1337/2018, Court on its own motion vs. State of Karnataka, stating as under:

537. It is suggested that determination of environmental compensation in this category would have two components, (i) Cost saved/benefits achieved by the concerned individual/authority by not having proper waste/sewage managing system; and (ii) Cost to the environment (environmental externality) due to untreated/partially treated waste/sewage because insufficient capacity of waste/sewage management facility. It further says that Cost saved/benefits achieved would also include interest on capital cost of waste/sewage management facility, daily operation and maintenance (O & M) cost associated with the facility. The determination of environmental compensation, therefore, is suggested, applying following formula:

538. Environmental externality has been placed in two categories (i) untreated/partially treated sewage discharge and (ii) improper municipal solid waste management and detailed in table 3.1 and 3.2, as under:

539. CPC B has further recommend a fixed cap for minimum and maximum cost for capital and O & M component for environmental compensation in table 3.3 and 3.4, as under:

540. Para 3.3 deals with the method of determining environmental compensation for damage/untreated/partially treated sewage by 378 concerned individual/authority. Under this head, CPC B has considered that for population above 1 lakh, requirement of water supply, would be minimum 150 to 200 lpcd and 85% whereof would result in sewage generation. It takes capital cost for 1 MLD STP ranges from 0.63 crores to 3 crores and O & M cost around Rs. 30,000 per month. Consequently, it suggested to assume capital cost for STPs as Rs. 1.75 crores/MLD (marginal average cost). Expected cost for conveyance system is assumed as Rs. 5.55 crore/MLD and annual O& M as 10% of combined capital coast. Based on the above assumptions, Committee has recommended/suggested environmental compensation, to be levied on urban local bodies, by applying formula and here CPC B has suggested two formulas and any of them may be adopted.

541. Para 3.4 deals with the method of environmental compensation to be levied on concerned individual/authority for improper solid waste management, chargeable from urban local body based on the following formula:

542. Here also certain assumed figures have been taken by CPC B. Report says that municipal solid waste generation is approximately 1.5 lakh MT/day in India as per MoHUA Report-2016. As per principles of Solid Waste Management Rules, 2016 and PWM Rules, 2016, total cost of municipal solid waste management in city/town includes cost for door to door collection, cost of segregation at source, cost for transportation in segregated manner, cost for processing of municipal solid waste and disposal through facility like composting bio-methanation, recycling, co- processing in cement kilns etc. It is estimated that total cost of processing and treatment of municipal solid waste for a city of population of 1 lakh and generating approximately 50 tons/day of municipal solid waste is Rs. 15.5 Crores which includes capital cost (one time) and Operational and Management cost for one year. Expenditure for subsequent years would be only 3.5 Crores/annum. For arriving per day waste generation, CPC B has referred to a survey conducted by Environment Protection Training Research Institute (EPTRI) which estimated that solid waste generated in small, medium and large cities and towns is about 0.1 kg (Class-III), 0.3-0.4 kg (Class-II) and 0.5 kg 380 (Class-I) per capita per day respectively. The committee opined that 0.6 kg/day, 0.5 kg/day and 0.4 kg/day per capita waste generation may be assumed for mega-cities, million-plus UAs/towns and Class-I UA/Towns respectively for calculation of environmental compensation purposes.

543. Sample calculation of environmental compensation to be levied for improper management of municipal solid waste has been provided in table 3.6 which read as under:

545. Here, broadly, determination of environmental compensation refers to two major aspects i.e. illegal extraction of water as one aspect and illegal use of ground water as second aspect. For determination of environmental compensation for illegal extraction of ground water, formula suggested by Committee is:

546. Depending on the category of the area for the purpose of ground water i.e. safe, semi-critical, critical and over-exploited and also the purpose for which ground water is used, determination of environmental compensation for illegal use of ground water, has been suggested differently for different purpose/use i.e. for drinking and domestic use; for packaged drinking water units/for mining infrastructure and dewatering projects and for industrial units. Hence all these aspects are separately given in paragraph 4.6.1, 4.6.2, 4.6.3 and 4.6.4 as under:

547. It is also recommended that minimum environmental compensation for illegal extraction of ground water would be Rs. 10,000/- if it is for domestic purposes, but in other matters, it would be Rs. 50,000/-.

548. These recommendations by CPC B have not been given in the form of a binding statutory provision. Even otherwise, we find that these are only broad suggestions, ignore several relevant aspects which have to be considered while determining environment compensation in a given case and, therefore, there cannot be taken as readymade application to all situations for determining of environment compensation. Moreover, on some aspects there is no suggestion, but it is deferred.

549. We also find that some crucial relevant aspects requiring application of „Polluters Pay‟, have not been considered in the above suggestions. CPC B has failed to consider that the purpose of determination/computation/assessment of environmental compensation and levy thereof, involve various factors like (i) cost of damage to environment, (ii) cost needed for restoration/remediation of damage caused to environment, (iii) element of deterrent/provincial, (iv) liability arising for violation of statuary mandatory law relating to environment 384 namely requirement of consent, EC and NOC etc. It is not mere cost of item or subject but computation of something which situation has arisen by an act of PPs due to violation of environmental law causing damage to environment. The loss and its remedy involves complex of components.

550. Nature is precious. The elements of nature like air, water, light and soil in materialistic manner may not be priced appropriately and adequately. Most of the time, whenever price is determined, it may be extremely low or highly exorbitant meaning thereby disproportionate. Still, since some of the assets of nature are marketable, on that basis price may be determined but when such elements are damaged or degraded, restoration thereof, in effect is priceless. Many a times, it may be almost impracticable and improbable to recover and remediate damaged environment to its position as it was. Moreover, its cost might be very high. It also cannot be doubted that once there is a pollution or damage to environment, it would affect adversely not only the environment but also inhabitants and all biological organisms. Damage is there, only degree may differ whether to the environment or to the inhabitants and other organisms. To find out simultaneously degree of damage and to ascertain the same in many cases may not be possible or practicable. For example, a polluted air causes respiratory diseases but the people do not get infected and starts reflection of the disease immediately but it takes some time. The time taken in reflection of injury on the person or body also differs from person to person depending upon his immunity and other health conditions. In some cases, damage to environment i.e., air pollution may be fatal to a person who already has respiratory problem. For some a minor inconvenience, minor injury to others, and some may not suffer to the extent of showing symptoms of any diseases at all. When we talk of environmental compensation for 385 causing degradation to environment and for its restoration or remediation, it is not a formal or casual or symbolic amount which is required to be levied upon the violator. It is substantive and adequate amount which must be levied for restoration of environment. CPC B in determining values of fixed quotients and rupees etc., has been very lenient as if only symbolically violator is to be held liable and it must pay a petty amount.

551. Statutory Regulators must realize that the amount is needed for remediation and restoration of damaged environment; enough to be deterrent, to provide adequate compensation where inhabitants are affected adversely and where violator has proceeded in violation of Environmental Laws relating to consents, clearances, permissions etc., to penalize him for such violation to prove to be a deterrent to him and others. Unfortunately, the above guidelines laid down by CPC B have not considered all these aspects and it appears that the same have been prepared in a very casual and formal manner.

552. In respect of computation of compensation for illegal extraction of ground water, CPC B has referred to Tribunal‟s order in Court on its own motion vs. State of Karnataka (supra) directing it to lay down guidelines to deal with the scale of compensation but has failed to consider that Tribunal has also observed that its scale may have slabs depending on extent of pollution caused, economic viability etc. and deterrent effect.

553. Statutory Regulators have also failed to consider that environmental compensation is not a kind of fee which may result in profiteering to violators and after adjusting a nominal amount of environmental compensation, a violator may find it profitable to continue 386 with such violations. The objective of environmental compensation is that not only the loss and damage already caused, is made to recover and restore but also in future, the said violator may not repeat the kind of violation already committed and others also have a fear of not doing the same else similar liability may be enforced upon them. Unless amount of compensation is more than maximum permissible profit arising from violation, the purpose of environmental compensation would always stand defeated.

554. Loss caused to surroundings of the environment, may also include flora-fauna and human beings. It is in this backdrop that in various matters when the issues were considered by Courts and Tribunal and found necessary to impose environmental compensation upon Proponent/Violator of environmental laws, they have followed different mechanisms. Sometimes, Committee‟s reports confirming violations have been referred but for quantum of compensation, directions have been issued in different ways. In some cases, CPC B guidelines have been applied while in many other, project cost has been made basis.

555. CPC B Guidelines have taken care of industries and municipal bodies. Its application in all cases irrespective of other relevant consideration may proved to be disastrous. Individuals, charitable, social or religious bodies, public sector and government establishments etc., may, in given circumstances justify a different approach. Further, there may be cases attracting aggravating factors or mitigating factors, for example in national emergency some activity got performed violating environmental norms or a proponent is resilient to any advice to adhere law to protect environment and so on. In fact, quantum of EC should have nexus with State‟s efforts for protection and preservation of 387 environment and control of pollution. Compensation regime must be a deterrent to violators and incentivize eco-friendly proponents. No one should get profited by violating environmental laws and community should also not suffer for violation of environmental norms by defaulting proponents. There is no reason, if beside the aspects noticed above, the computation process also incorporate the elements of inflation, quality of life, and economic prosperity.

556. In the context of "violation of disposal of Bio-Medical Waste" and "Non-compliance of Bio-Medical Waste Management Rules, 2016" and determination of environmental compensation for such violations, Tribunal in OA No. 710/2017, Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahjahanpur & Others and other connected matters, vide order dated 15.07.2019, accepted report of CPC B, and said:

557. The above recommendations i.e. in para 10, Tribunal said "compensation regime suggested by the CPC B may be adopted. It will be open to the State PCBs/PCCs to adopt a higher scale of compensation, having regard to the problems faced in such States/UTs". It further says that if State Governments and UTs still remain non-complying for two months, compensation will be recovered at the rate of Rs. 1 crore per month till non-compliance continues.

558. In respect of solid waste, sewage effluent, ground water extraction etc., Tribunal in OA No. 593/2017, Paryavaran Suraksha Samiti and 388 another vs. Union of India and others , vide order dated 28.08.2019 has said in para 16, that as regards environmental compensation regime fixed vide CPC B guidelines for industrial units, GRAP, solid waste, sewage and ground water is accepted as an interim measure. Tribunal further observed that recovery of compensation on „Polluter Pays‟ principle is a part of enforcement strategy but not a substitute for compliance. It directed all States/UTs to enforce compensation regime latest w.e.f. 01.04.2020 and made it clear that it is not condoning any past violations. Tribunal directed to enforce recovery of compensation from 01.04.2020 from the defaulting local bodies failing which the concerned States/UTs themselves must pay the requisite amount of compensation.

559. In the matter of illegal mining causing damage to environment, methodology for determining environmental compensation was examined in OA no. 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) and other connected matters decided on 26.02.2021. Here a report was submitted by CPC B on 30.01.2020, placing on record recommendations made by Committee comprising:

560. Report was considered by Tribunal vide order dated 17.08.2020. Report said:

9. In the first approach, the criteria adopted is:

10. Approach 1 is demonstrated by Table 1 as follows: Table No. 01: Approach 1

11. Approach 2 is demonstrated by following formula:

12. Final recommendation is as follows:

562. Though Tribunal said that determination of environment compensation is a dynamic concept and depends on variables, and also 391 directed CPC B to issue statutory directions to all States/UT so that they may evolve appropriate mechanism for assessment, but nothing has been done in this regard till date. Some States have found it convenient to follow CPC B guidelines. State of Tamil Nadu vide order dated 03.01.2020 and State of Haryana vide order dated 29.04.2019 have adopted CPC B Guidelines.

563. In some case compensation has been awarded by Tribunal on lump sum basis without referring to any methodology. For example: (i) in Ajay Kumar Negi vs Union of India, OA No. 183/2013, Rs. 5 cr. was imposed. (ii) In Naim Shariff vs M/s Das Offshore Application no. 15(THC) of 2016, Rs.25 cr. was imposed (iii) Hazira Macchimar Samiti vs. Union of India, Rs 25 cr. was imposed.

564. In Goa Foundation vs. Union of India & Others (2014)6SCC590, Supreme Court relied on Samaj Parivartana Samudaya & Others vs. State of Karnataka & Others (2013)8SCC209 and held that ten per cent of the sale price of iron ore during e-auction should be taken as compensation. To arrive at the above view, Court observed that this was an appropriate compensation given that mining could not completely stopped due to its contribution towards employment and revenue generation for the State. Further, Court directed to create a special purpose vehicle, i.e., "Goan Iron Ore Permanent Fund" for depositing above directed compensation and utilization of above fund for remediation of damage to environment.

565. In Mantri Techzone Private Limited vs. Forward Foundation & Others , (2019) 18 SCC 494, Supreme Court affirmed imposition of environmental compensation by Tribunal, considering cost of the project, where there was violation regarding EC/consent and proponent 392 proceeded with construction activities violating provisions relating to EC/Consent. Tribunal determined environmental compensation at 5% and 3% of project cost of two builders. 5% of project cost was imposed where PP had raised illegal constructions while 3% was imposed where actual construction activity was not undertaken by PP and only preparatory steps were taken including excavation and deposition of huge earth by creating a hillock. Besides, Tribunal also directed for demolition and removal of debris from natural drain at the cost of PP.

566. In Goel Ganga Developers vs Union of India and Others , (2018)18SCC257, Tribunal imposed 195 cr. compensation since project was executed without EC. Supreme Court reduced it to 100 cr. or 10% of project cost whichever is higher. Supreme Court also upheld Rs.5 cr. imposed by Tribunal vide order dated 27.09.2016. Thus, total amount exceeded even 10% of project cost.

567. In the above context and discussion, quantum of compensation has to examined herein. We find broadly, following violations on the part of PPs:

568. In all the above cases, Committees have found damages/degradation to environment in different forms. However, at times, attempt has been made to dilute the damage or responsibility of PPs and at some stages, losses or damages caused to the inhabitants and villagers which are on record, have not even gone into by the Committees. For example, flood caused due to breakage of line has been totally ignored.

569. In the context of Polavaram/Indira Sagar MIP, complaint of applicant in OA IV is that PPs have not cared for disposal of muck in a scientific manner and virtually have caused damage to valuable soil including topsoil and have disposed muck in such a manner so as to cause huge damage and loss to the environment as well as inhabitants. As we have already said, this project is multipurpose terminal project across river Godavari near Polavaram village, about 42 km on upstream of Godavari Barrage, Dowlaiswaram. It envisages benefits to the extent of 7.20 lakh acres for the up land areas of East Godavari and Vishakahpatnam districts under left main canal (181.5 km) and West Godavari and Krishan district under right main canal (174 km). Besides, it would also generate 960 MW of power. In addition to irrigation benefits, 80 TMC of Godavari water is proposed to be diverted to Krishna River and supply 23.44 TMC of drinking water to habitants and industries in and around Vishakhapatnam city including Vizag Steel Plant. Water saved in Krishna River will be used for drought prone areas of Rayalseema region. EC was granted by MoEF on 25.10.2005 and revisited on 09.03.2009. Consent for establishment was accorded by APPCB on 18.10.2005. Project required 46,060 hectares land which included 3279 hectares forest land. Forest Clearance was granted by MoEF&CC vide letter dated 28.07.2010 for diversion of 3731.07 hectares forest land (3473 hectares notified forest area plus 258.07 hectares deemed forest land). NOC/permission by Standing Committee of National Board for Wildlife was issued on 06.07.2006. About 1,93,350 persons were likely to be affected by the project whereof 1,75,275 in Andhra Pradesh and 6,319 in Odisha and 11,766 persons in Chhattisgarh. Project commenced construction work in 2005-2006 and as per report of joint Committee dated 26.12.2018, progress of Polavaram Head Works 395 was 51.07%, left main canal 66.23% and right main canal 90%, overall progress of the project was shown as 62.16%. Excavation work around 82.60% was completed. About illegal dumping of muck, Committee has said that there were dumping at BC Colony, Moolalanka Dump Yard and land acquired near Moolalanka dump site besides dump sites (D1, D2, D4, D5 and D6). The observations are that disposal of muck is without proper height, leveling and gradient; no vegetation/green belt was made on the dumps to stabilize and to prevent air pollution etc. The substantial dump of muck was found at Moolalanka area of 203 acres in a length of 3.40 kms. The Moolalanka dumping yard was not area approved for the said purpose under EC granted by MoEF&CC granted to the above project but it was selected as a dumping site by the project authority headed by Executive Engineer in the meeting held on 15.12.2014 and acquisition under the provisions of Acquisition Act, 2013 was made by State of Andhra Pradesh in 2016 and acquired land was handed over to the project authorities in July 2016. In OA IV, applicant stated that the height of muck dump at Moolalanka Dumping Site was around 15.5 meters from the ground level and it stands fortified from the re-verification report dated 25.04.2019/29.04.2019 wherein it is mentioned that dump of muck is completed in a length of 1.2 km to a height of 20-25 meters. Report further says that dumping is also done in the remaining length of dump yard intermittently and dumping of soil was in progress. Further the complaint of applicant that a natural drain Kademma Kalava passing through dumping site has been diverted and choaked. This complaint made in para 6(f) of the application has been found correct in the joint Committee inspection report dated 13.04.2017 submitted pursuant to Tribunal‟s order dated 10.03.2017. The report shows that project authorities are dumping muck in the area where there 396 was natural drain Kademma Kalava. Committee found that the said drain (about 4 meters width) passing through dumping site has been diverted by creating a newly excavated canal having top width of 28 meters and bed width of 16 meters of about 1.4 km long. Natural nallah passing through the dumping site is partly filled up with muck. About the complaint of existence of wildlife sanctuary/national park within extracted/prohibited area of dumping site, Committee has found that Papikonda National Park was located at around 8 kms from Moolalanka dumping site. A reserve forest was also there and boundaries of the said reserve forest from dumping site were within a distance varying from 50- 150 meters from the tow of the dumping site. Committee has also noticed that the area between boundary of reserve forest and Pappikonda National Park was proposed to be declared as Eco Sensitive Zone by recommendation made by Andhra Pradesh Government to MoEF&CC in 2013 but no formal notification was issued in this regard.

570. Thus, it is evident that Moolalanka dumping site has been selected and utilized for dumping of muck, unauthorizedly, that too in an unscientific manner, at a much later stage after grant of EC and there was no approval of such user of the said land in the EC granted to the project in 2005 and revisited in 2009. No amendment in EC was ever sought by the proponents and granted by the Competent Authority permitting use of Moolalanka dumping yard as such. Had it been done, all other aspects i.e., diversion of natural drain, distance from National Park and reserve forest, etc. could have been considered by the Environment Impact Assessment Committees but since project authorities did not seek any amendment in EC while selecting a different site for dumping and actually proceeding to do so, hence their action of 397 dumping at Moolalanka dumping yard and that too disposing muck in unscientific manner, was clearly illegal.

571. Applicant has pleaded that the above activities have caused pollution in air and water affecting habitants in the nearby village Polavaram which is about 400 meters from the said dumping site. Joint Committee in report dated 26.12.2018 has noted complaints of local people as under:

572. Joint Committee, thereafter made suggestions but we do not find anything in the said report which may show that the complaints made by the local people was found incorrect or unsubstantiated.

573. Similarly, in respect of Purushothapatnam LIS, Pattiseema LIS, Chintalapudi LIS and KGPR Linking Project, Committee, in the last two reports, has made recommendation assessing environmental compensation only in respect of Purushothapatnam LIS, Pattiseema LIS. In respect of Chintalapudi LIS, it has not made any recommendation stating that requisite information was not supplied by PPs. These 398 projects have been executed illegally and caused damage/degradation to environment in many ways.

i. Schemes were carried out obtaining EC from Competent Authority under EIA 2006.

ii. No consent either to establish or to operate under Water Act, 1974 and Air Act, 1981 was obtained and no authorisation under Solid Waste Management Rules, 2016 was obtained.

iii. Illegal mining/extraction of sand, soil, rocks, etc., unauthorized diversion of river water, dumping of muck in natural drain and its diversion, air and water pollution, noise pollution etc.

574. Next, where execution has commenced and still continuing, damage/degradation to environment and violation of environmental laws is still continuing.

575. Committee has made assessment of compensation in respect of two projects in a very considerate and lenient manner for which we find no reason to take such an approach.

576. In respect of Purushothapatnam LIS, Committee in report dated 06.08.2021 has recommended damage assessment/environmental compensation liable to be paid by PPs, observing as under:

g. Damage assessment through satellite images;

h. Dust emission due to construction;

i. Impact on water quality, sewage generation and disposal; j. Solid waste generation and disposal;

k. Sand mining and in-house utilization;

l. Emissions due to transportation;

m. Non-utilization of top soil for further beneficial purpose.

577. Findings with regard to land acquisition and rehabilitation are summarized as under:

ii. About 78.88 acres of Government land, survey/assessment is yet to be made. Possession of entire acquired land was taken. 400 Acquired land was agricultural and used for growing Paddy, Maize, Banana, Sugar Cane, Sesame and Papaya crops.

578. In respect of impact on neighbouring community, Committee has admitted that during the course of construction activities, people residing in neighbourhood must have suffered noise pollution causing loss of peace and quietude, dust pollution, and traffic congestion. It has also observed that the impact of above kind of pollution could have been minimized by adopting/preparation of Environmental Management Plan but could not be done since PPs did not allow the process of Environmental Impact Assessment Study in accordance with the procedure prescribed under EIA 2006. Having said so, Committee in a strange manner has said that the impact on residents was disturbing in nature but not damaging. There is no damage to neighbouring community hence no compensation need be computed. This approach of Committee, without having any otherwise facts proven by PPs and in utter disregard of the principle of "Absolute Liability", is strange and contrary to law. Once a PP has violated environmental laws and proceeded to execute project in defiance of the procedure prescribed for mitigating/preventing/nullifying pollution, it is on PP to prove that no loss/damage on account of pollution has caused and in absence thereof, it is liable for payment of compensation. Activities causing pollution are deemed to have caused damage/loss to environment as also to the people, individually and/or collectively.

579. On the aspect of impact in upstream States, Committee has expressed its opinion on the basis of information furnished by PPs, executing Purushothapatnam LIS that operation of stream during monsoon in 2018 and 2019 may not have caused water scarcity in 401 upstream States though its suggestion that PPs shall install automatic full proof system (interlocking) to ensure that, when water reaches level +14.0m at Dowleswaram, only then it is lifted shows that no such assured system was adopted. Committee has expressed its opinion only on the basis of PPs. though it has said that PPs have acted illegally having not proceeded to obtain statutory Consents/Clearances/NOCs and still those defaulters/violator‟s information has been made the sole basis for forming opinion. Further, extract of logbooks for level +13.9 and pumping in 2017 has been made a part of report as Annexure - IIIa and IIIb which shows that pumping was also done when level was less than +14.0 m. This was part of stage-I pumping commenced in September 2017 and shows violation of the norms of lifting of surplus water only when water level reaches +14 m and not below that.

580. On the aspect of impact on aquatic life, Committee, on the one hand has said that extraction of gravel and sand may cause considerable damage to fish stocks and other aquatic life by destabilizing the sub- stratum, increasing the turbidity of water, silting of the channel bottom and modifying the flow, which in turn may result in erosion of the river channel; the suspended solids in excess of 100 ppm brought by suspended solids may choke the gills of young fish; fine solids in concentration greater than 25 mg/l may adversely affect development of fish eggs and fish; and these alternations may have a significant impact on benthic fauna especially fish. Having said so, Committee then solely relied upon the information given by PPs that there was no incidence of fish kill in the region and pump bays are laid 2 metres above the bed level of river, also the information given by Fishery Department vide letter dated 25.05.2021 that there was no decrease in the fish and prawn catches in the last six years and livelihood of traditional fisherman was 402 not affected near the project site, it has taken a view that there was no impact on fish or aquatic life. Strangely, once water pollution on account of unscientific expedition of sand etc. from river bed is admitted, non- assessment of damages to environment is really surprising in as much as pollution of stream as a matter of fact was there and hence for the damage caused and restoration, PPs were liable to pay compensation for the damage, and Committee erred by not proceeding to assess environment compensation.

581. Under the head of C & D waste and Muck Management Disposal, Committee has said that 15,11,902 Cum of muck was generated from stage-I and 8,14,418 Cum of muck from stage-2 which included construction debris. It has also observed that PPs have not maintained record on quantity generated, quantity reused and quantity still laying as heaps. On mere assumptions, unsubstantiated and unsupported information supplied by PPs who themselves are guilty of non- maintenance of relevant records, Committee has taken total quantity of muck generated as 23,26,320 m3 (15,11,902 m3 + 8,14,418 m3). In respect of re-use of muck, again no record was maintained by PPs but based on vague information supplied by them, Committee has taken the figure of reused muck as 70% i.e., 16,28,424 m3 and quantity of muck still laying at different dump locations has been worked out as 6,97,896 m3 (23,26,320 m3 _ 16,28,424 m3). Committee unfortunately has not examined the matter independently. Further irregularities in the matter of muck management has been found by Committee that muck was kept near point of excavation, no designated area was identified, muck dumps were not stabilized and muck utilization plan was not prepared. Committee has also noted that by implementation of Environmental Management Plan, muck generated could have been managed in a more 403 sustainable manner which was not done. still has not made determination in right earnestness on this aspect.

582. Under the heading of show cause Notice issued by MoEF&CC, Committee has stated that total quantity of water pumped is as follows:

583. The satellite images have shown that in 2017, temporary ramp was constructed obstructing flow of river, sand was extracted near construction site and transported to project site through temporary ramp and the area of sand mined was 2.5 ha in 2017. Satellite image of 2018 show turbulence due to construction activity in the area. The observations from satellite images have been recorded by the Committee as under:

584. For the purpose of computation of environmental compensation, Committee has clubbed all the aforesaid factors i.e., land acquisition and rehabilitation, Impact on neighbouring community, impact in upstream states, impacts on fish, C & D waste and muck management disposal, show cause notice issued by MoEF&CC and facts disclosed by satellite 404 images which are mentioned as paras VI.a to VI.g and formula applied for computation of environmental compensation is as under:

585. The total amount of Rs. 1,02,75,000/- has been computed accordingly.

586. For computing environmental compensation under the head of dust emission due to construction, Committee has referred to US Environmental Protection Agency, where emissions from construction activity is calculated by using the formula of 1.2 tons/acre/month of activity. However, in the case of project in question, Committee has extremely diluted the above formula by adopting in a modified manner as 1.2 tons/hectare/month. The quantity of 1.2 tons, taken by US Environmental Protection Agency, per acre, has been taken in the present case, per hectare. The problem of emission of dust is multi-fold higher in India particularly, in the States where agriculture is main occupation and construction activities are also going on in large scale. On the contrary, in cold countries like Unites States of America and United Kingdom etc., the problem of dust is almost negligible. Therefore, instead of using more stringent measures in respect of dust emission due to construction in the case in hand, Committee has chosen to reduce the quantum from 1 acre to 1 hectare while keeping the quantity of 1.2 tonne same, meaning thereby, almost two and a half times what it was in U.S. 405 has been reduced in India which shows a total arbitrary and wholly unrealistic approach on the part of Committee.

587. In the report, it is admitted that project was carried out in villages and within radius of 2 km from the inhabitation. In our view, number of people residing, should not be guiding factor since it is the pollution and the damage caused thereto, which is material and must be the guiding factor and not the number of persons. Broadly, damage due to pollution would be same in every location having similar degree of pollution and other climatic conditions. Number of people or population, in our view is not a correct yardstick. Moreover pollution due to dust emission would be much severe in India and has no comparison with U.S. where dust problem is very negligible. Hence instead of adopting more stricter standard, Committee strangely has diluted it substantially. Committee has also observed that construction activities were taken up in other centres, dispersion of dust/pollutant is low as compared to villages with cities due to presence of high-rise buildings. In that view of the matter, it has adopted the formula with its own modifications for determination of compensation under the head of muck management and dust emission. It has applied formula for determining emission, as under:

Emission E = 1.2 tons/hectare/month of activity E = Total area of construction = 64.36 ha remaining land acquired is used for placing the machinery, transportation etc. = No. of days of construction =12 months (dust is mainly emitted during excavation, 406 transportation and construction) EC = 1.2 tons * 64.36*12 = 926.784 tons 927 tons The dust emitted from construction activity mainly comprises of particulate matter PM 10. Out of the total quantity of dust emitted 50% of the dust could have been suppressed by adopting safe environment management practices. 100% dust suppression may not be achieved during construction activity. Hence committee has attributed 50% of dust has contributed for constructing the project without obtaining EC/ without implementation of EMP.

Major portion -50% of dust in construction activity is PM10. The committee by referring to UK Defra environmental prices and other reports submitted to Hon‟ble NGT and NEERI calculation the environmental price for particulate emission €44.6 pr ton of PM 10 emission by suitably adopting the formula for present conditions.

588. Committee has observed that total number of months from start of project to completion was 18 but core construction activity may have continued for 12 months only and remaining six months might have been for finishing, electrical, safely and trial works. It has, thus calculated total emission due to construction as under:

589. The above quantity of 927 tons thereafter has been reduced by 50%, observing by committee that 100% dust suppression may not be achieved during construction activity and 50% emission could have been 407 suppressed by adopting safe environment management practices. Hence committee has attributed only 50% dust emission.

590. Dust emission due to construction activities was carried out by PPs without EC and without implementation of environment management Programme. Once committee found that PPs have violated law and executed project in blatant disregard of procedure which could have helped in mitigating/preventing degradation of environment, there was no reason to take any lenient view since violator of environmental law is not entitled for any considerate or soft approach since his action would have affected the environment in general and the people residing in the neighbourhood in particular. Exact ascertainment of loss to both is very difficult in post execution period particularly when PPs have not maintained relevant record. There is also no reason to lessen/reduce liability by attributing some kind of concession to such PPs who are violators of mandatory laws.

591. Be that as it may, since only 50% of emission thereafter has been taken into consideration, Committee has taken quantity of dust emission as 464 tons (927 divided by 2). Committee has further observed that major portion of 50% of dust in construction activities is PM10 (Particulate Matter). On this aspect it has referred to UK Defra environmental prices and other reports submitted to this Tribunal and NEERI calculation, according to whereof, monitory part would be computed at the rate of € 44.6 per tonne (Rs. About 3786.5 as per today‟s rate) of PM10 emission. Committee has applied convenient adoption of formula and computed environmental compensation for dust emission as Rs. 15,72,774/-. Here also no record was maintained by PP and Committee has proceeded on the basis ofs information supplied by 408 PPs as also the medical officer Primary Health Center, District East Godavari located in the vicinity of the project site, stating that no case of malaria, dengue, filariasis, schistosomiasis and enteric parasites etc. were reported.

592. The number of labourers employed, and mobile toilets/sanitary arrangements made by PPs, are also based on information supplied by PPs but not supported by document. However, it has been found by Committee that no proper arrangement for treatment and sewage disposal was made. It has applied formula as under and computed environmental compensation as Rs. 9,56,600/-;

Per capita solid waste generated 0.1 kg/day.

Marginal cost of environment externality=0.05 Total workers →430 (unskilled & semi -skilled) +50 (skilled) during peak construction of +12 months + 200 (unskilled & semi-skilled) +50 (skilled) during completion stages of 6.3 months Total solid waste generated per day =0.048 TPD for 12 months and 0.025 TPD for 6.5 months = {2.4*(0.0480-0)+0.02*(0.048-

0)*365+0.05*(0.048-0)*365} +{2.4*(0.025- 410

0)+0.02*(0.025-0)*183+0.05*(0.025-0)*183} EC on account of = Rs.1.72,185/-

595. For sand mining and in-house utilization, it is admitted that no record was maintained. A very huge quantity of sand mining had undergone by PPs in execution of Purushothapatnam LIS. This is also admitted that no permission/clearance/license/permit was obtained for sand mining either from Environmental Statutory Regulator or from Mining Department and the entire mining was patently illegal. Committee has applied following formula for computation of environmental compensation for sand mining:

606. Similarly, compensation/damage has been determined in respect of Pattiseema LIS by Committee vide report dated 21.06.2021 under following heads:

607. Total EC determined by Committee vide report dated 21.06.2021 as Rs. 1,90,85,838/-. Here also formulae applied by Committee are the same as applied for determining compensation in respect of Purushothapatnam LIS which we have discussed separately in detail herein above. The approach of Committee, as evident, and we have also pointed out, is in violation of principles laid down by Supreme Court namely cost of project; turnover; nature of damage and objective of not only recovering cost of subject but also cost of remediation. For example, in case of illegal sand mining the damages have to cover not only cost of item, i.e., mineral illegally and unscientifically extracted but also cost of damage caused to mining area, mineral and earth and cost of restoration/remediation and cost reflecting upon a deterrence or a punitive measure so that no PP may treat violation as a profiteering business but find it such deterrent as not to indulge in future.

608. We, therefore, partly accept reports dated 21.06.2021 and 06.08.2021 but reject the same to the extent of the quantum of damages, determined and recommended.

609. The formula suggested by Committees for determination of compensation on different items may be relevant when damage is taken individually, loss to environment is caused due to the respective component but where damage travels in a variety of components, all have different impact, and degree of loss and magnitude of impact could not have been assessed with substantive accuracy due to the fault on the part of PPs, different considerations for determining compensation shall prevail and amount of compensation will have to be on a cumulative basis which as Supreme Court said, should be simple, straight, clear and easy for implementation.

610. In the present cases, Committee has made recommendations only in respect of Purushothapatnam LIS and Pattiseema LIS but in respect of Chintalapudi LIS, where work is still going on, no assessment or recommendations has been made on the ground that relevant information was not supplied by PPs. In respect of the former two projects, the assessment as we have already discussed, is broadly based on information supplied by PPs, though they have not maintained appropriate records at all. Moreover, in two projects, i.e., Purushothapatnam LIS and Pattiseema LIS, some aspects on which assessment of compensation has been determined and recommended, are similar, though amount has varied on account of quantum of violation but on some aspects, recommendation has been made only in one project and not other, though the other one is also guilty of similar violation. For example, in respect of Purushothapatnam LIS, Rs. 43,83,550/- has been recommended on account of sand mining and in house utilization without obtaining necessary clearances from APPCB and Mining Department, but no such assessment and recommendation is conveyed in respect of Pattiseema LIS, though PPs are also guilty of similar violation in the said project also. Therefore, also we are fortified in taking the above view that the recommendations made by Committee in the reports dated 21.06.2021 and 06.08.2021 with respect of quantum of Environmental Compensation, and also formulae as such, particularly, in respect of the value of R (i.e., in Rupees) cannot be accepted and hence, we reject the same.

611. The violations etc. in respect of Polavaram/ Indira Sagar MIP as complained by applicant besides others in OA IV, have been reported by 417 Joint Committee in report dated 26.04.2021. It visited site on 30.03.2021 and has recorded its observations, as under:

612. Thus, violations on the part of PPs of Polavaram/Indira Sagar MIS are evident. Not only unscientific management and disposal of muck, but we find that even stone crushers were running at the site in illegal manner without having statutory consents from State PCB. There were nine stone crushers of primary, secondary and tertiary level including screening facility to separate different sizes of metal and all were operative/allowed to be operated by PPs in a wholly illegal manner. 180 lakh Cu.m of soil muck was found dumped in Mulalanka dump yard and in other dump yards, 241 lakh Cu.m and 104 lakh Cu.m of soil muck was found by Committee. Construction in Polavaram/Indira Sagar MIP of Coffer Dams, as per applicant, has resulted in flood in the nearby areas which was brought to the notice of Tribunal vide IA No. 494/2019 in OA IV and again in IA 133/2021, wherein photographs were also placed to show large flooding in villages of East and West Godavari districts. Flooding as per record shows continuously in 2019-2020. In para 10 of IA No. 133/2021, applicant has stated that hamlets of Kondamodalu Panchayat of Devipatnam mandal, i.e., Tatiwada, Mettagudem, Kokkeragudem, Peddagudem, Katthanapalli, Somalapadu, Kondamodalu, Nadipudi, Thelipuru, Talluru and other villages in East and West Godavari districts are facing submergence.

613. Above allegations of applicant have been found correct by Committee also and in fact, State authorities have not disputed the 419 situation of flooding and, therefore, the facts regarding loss caused to the villagers on account of the flooding as complained by applicant is an uncontroverted fact. Hence, it cannot be said that the project in question has not caused or are not causing any damage or loss to the inhabitants/individual residents in the area.

614. We find a letter dated 05.03.2021 sent by Chief Engineer, Polavaram Irrigation Project to applicant of OA IV in which the complaint of applicant as such is not disputed but an attempt has been made by PPs for mitigating the loss of flooding situation. However, complaint of applicant that the design of Coffer Dam is faulted, has been denied. Relevant extract of the said letter is as under:

615. In the end, we have no hesitation in holding that in the above schemes, there is blatant violations of environmental laws and there is substantial damage to environment.

616. Looking into the facts and circumstances of the case and nature and magnitude of violations on part of PPs, we find, here is not a case where any leniency can be shown. There may be some cases, where mitigating factors may be available for example immediate action is taken in national interest, urgency, natural disaster or other kind of public interest and there may be cases where some aggravating factors available, for example, proponents not only violate law, but goes on violating law with adamant attitude and do not take any steps for correction despite of knowledge and pointed out by Statutory Authorities including Courts and Tribunals etc. In present case, the only mitigating factor at the best, we may find is, that projects were undertaken for 421 benefit of people at large by providing water for irrigation, drinking and industrial purposes but the aggravating factor is also present that PPs, i.e, State of Andhra Pradesh and its Authorities not only acted in utter violation of Statutory laws, but misled all authorities, disclosed wrong facts, concealed information, continued to misrepresent before Statutory Regulators as well as this Tribunal and maintained an adamant attitude of abiding by their illegal stand till Statutory Regulators took stand in a particular way and even thereafter. In the case, where violation is multifarious and multicornered, it is always better to provide a simple approach of making assessment for damages particularly, when damage to environment is writ large, as demonstrated above. The cases in hand are fit where environment compensation should be computed on the basis of cost of project.

617. In Goa Foundation vs. Union of India & Others (supra), where illegal extraction of minerals was involved and in Goel Ganga Developers India vs. Union of India (supra), where a construction project was carried out without EC in violation of EIA 2006, Supreme Court permitted computation of environment compensation at 10% of the project cost. In fact, in Goel Ganga case, exemplary cost of Rs. 100 crores were imposed, and Court said that developer would pay 100cr. or 10% of project cost whichever is higher.

618. In these cases, the next question will be whether compensation should be determined at 10% of the project cost or should be higher or lower. We find that in Goel Ganga case (supra), project proponent was found guilty of multiple illegal acts including violation of the laws relating to EC, consent, etc, raised even otherwise illegal construction for the purpose of commercial project. Similarly, in Goa Foundation (supra), 422 also illegal extraction was found by private proponents for commercial gains.

619. In the present case, it is no doubt that proponents have acted vehemently illegally and in total disregard of environmental laws but the other factors differentiating these cases are that the proponent is State Government, there is no profit motive, no commercial element is involved, and the projects are for public benefit; more so, largely for the benefit of farmers and also the amount which would ultimately arrive, may be adequate to meet the cost of remediation of environment but if there is deficit, it is again the State which would make good the deficiency.

620. Accordingly, in all these matters, except Polavaram/Indira Sagar MIP, we are of the view that PPs (except Polavaram/Indira Sagar MIP) must be held liable for payment of environmental compensation at 1.5% of cost of project. So far as Polavaram/Indira Sagar MIP is concerned, since there is no violation in regard to requirement of EC, consent, etc. and also looking to the total cost of project, we find that 0.75% of cost of project would be adequate to be imposed as environmental compensation. Besides, appropriate Competent Authority should also act under relevant statutory laws to take appropriate proceedings including prosecution against PPs and other violators, if any, for committing offences by violating environmental laws.

621. We answer question 3 accordingly.

622. OA III is, therefore, partly allowed and other OAs in respect of compliance of Tribunal‟s orders, where violation on the part of PP was 423 already upheld and directions for payment of EC were issued, are disposed of, in the following manner:

16010 Crores was shown as per 2010-2011. Since it is an ongoing project and there was compliance of requirement of EC etc. hence, we have not gone with subsequent increase of project cost.

(v) The above amount of Environmental Compensation shall be paid by concerned PPs within 3 months with APPCB. The said amount shall be utilised for remediation/restoration of environment under guidance and supervision of an Oversight Committee comprising MoEF&CC, CPC B and APPCB. The nodal agency shall be APPCB and CPC B. Aforesaid Committee shall be constituted within one month from the date of the judgment. Plan for remediation shall be prepared by APPCB in consultation with department of Forest, 424 State of Andhra Pradesh within two months and shall be executed within next six months. It will be open to above Authorities/Committee(s) to consult any Expert in the respective field and/or to include in the Committee to give effect to the above directions.

(vi) MoEF&CC shall constitute a specialised Committee to determine appropriate methodology for assessment of Environmental Compensation for loss/damage/degradation to environment, considering all relevant aspects of the matter including observations made here in above and the principles suggested. The said methodology shall be given statutory status by taking appropriate action by MoEF&CC so that the element of subjectivity in the matter of determination of Environmental Compensation may be eliminated or at least negated and a uniform approach is observed by Statutory Regulators in discharge of their statutory duties.

(vii) KGPR Linking Project shall not be executed/commenced unless statutory clearances/consents/permissions are obtained under relevant environmental and other laws from Competent Statutory Authorities.

(viii) Chintalapudi LIS may continue its activities but within 3 months Project Proponents shall obtain all statutory clearance/consent/NOC failing which further construction activities shall be stopped till such compliance.

(ix) A compliance report shall be submitted by MoEF&CC and CPC B after one year (by 31.12.2022) in the Registry of this Tribunal.

623. In the facts and circumstances, the cost is made easy. 425

624. A copy of the order may be forwarded to Chief Secretary, State of Andhra Pradesh, CPC B, APPCB, MoEF&CC and Ministry of Water Resources by e-mail for compliance.

Adarsh Kumar Goel, Chairperson Sudhir Agarwal, Judicial Member Brijesh Sethi, Judicial Member Dr. Nagin Nanda, Expert Member December 02, 2021 Original Application No. 175/2018 Original Application No. 350/2018 Review Application No. 46/2019 in Original Application No. 48/2019 & Original Application No. 857/2018 R,AVT,AG&N 426