National Green Tribunal
Ramesh Agarwal vs Union Of India Through Its Secretary on 9 March, 2022
Item No. 3
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Appeal No. 24/2017
(M.A. No. 332/2017)
(I.A. No. 54/2021)
Ramesh Agarwal Appellant(s)
Versus
Union of India & Ors. Respondent(s)
Date of completion of hearing and reserving of order : 22.02.2022
Date of uploading of order on the website : 09.03.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Appellant (s): Mr. Saurabh Sharma, Adv.
For Respondent(s) : Mr. Gopal Jain, Sr. Adv
Ms. Parul Bhadoria, Adv.
Mr. Naman Joshi, Adv.
Mr. Gurneet Sidhu, Adv.
Mr. Om Shankar Shrivastava, Adv
ORDER
Sr. No Issues Page No.
A GROUND OF APPEAL 1-4
B BRIEF FACTS 4-5
C PROCEEDINGS BEFORE THE TRIBUNAL 5-6
D PRELIMINARY OBJECTION WITH REGARD TO 6-32
PERSON AGGRIEVED
E ISSUE NO. III 32-41
F ISSUE NO. IV 42-60
G ISSUE NO. V 60-65
A. GROUNDS OF APPEAL
1. Challenge in this appeal is the order/letter dated 26.04.2017 passed by Ministry of Environment, Forest & Climate Change, New Delhi, whereby and hereunder a proposal for amendment in the Environmental Clearance moved by the respondent no. 3 project proponent was placed before EAC in its first meeting held on 28.12.2016 and on the recommendation of the EAC, the 1 proposal for amendment in the environmental clearance was accepted with certain conditions, which are as follows :-
―2. It is noted that EC for above expansion project, Unit #1 & 2 (2x600MW) was accorded on 18.03.2011 based on domestic coal linkage and EC for the remaining 2x600 MW (Unit #3 & 4) based on imported coal (till domestic coal linkage is available) was accorded on 04.11.2011.
An amendment to specific condition no (xxvi) of EC was accorded on 10.01.2014 w.r.t. temporary location of coal handling plant and temporary transportation of domestic coal by road for a period of three years. Permission was also accorded for utilisation of existing water reservoir, water allocation and ash dyke of the existing 1,000 MW TPP for all the four expansion units for an interim period not exceeding three years.
Further, amendment to specific condition no (xxvi) of EC was accorded on 27.03.2015 for change in location of coal crusher & alignment of CCPC and temporary transportation of imported coal also by road for a period of two years.
Further, the temporary Permissions accorded vide letters dated 10.01.2014 and 27.03.2015 have been extended till 30.04.2017 vide Ministry's letter dated 22.12.2016. It has also been decided that the subject matter shall be placed before the EAC, upon its re-constitution, for appraisal.
3. The proposal has been placed before EAC in its 1st meeting held on 28.12.2016 and the committee has recommended for the amendments in EC. The Ministry accepts the recommendations of the EAC and hereby amends the environmental clearance subject to the following additional conditions:
i. Use of existing ash dyke is permitted for two more years.
ii. Transport coal by road and installation of crushing facility located within the plant premises for thirty months for all the units.
iii. Use of existing water reservoir for expansion of 4x250 MW TPS is permitted.
iv. Change in coal source form imported to domestic coal for units 3 & 4 is allowed. Coal source form Kulda OCP-MCL (Road:42 km, CCPC:7km), Gare pelma0IV-2 & IV-3-SECL (CCPC:7km), Baroud Mines- SECL (Road: 40km) and Chhal Mine-SECL( Road 49 km) mines is permitted. Total quantity 2 of coal to be transported through road/CCPC shall not exceed 4.81 MTPA for Unit-3&4 (2x600MW).
v. Details of coal characteristics, source & location of coal mine, traffic study shall be submitted to the Ministry after getting allocation of coal through forward e-auction or any other scheme notified by M/s Coal India Limited.
vi. Coal transportation shall be preferably by rail or pipe/belt conveyor after thirty months only.
vii. Any variance in coal characteristics/source/mode of transport, it shall be brought along with environment and traffic impact assessment study to the Ministry for assessing the adequacy of the conditions already stipulated or to incorporate any additional condition as may be necessary in the interest of environment protection.
viii. Change in location of ash dyke form Roadapalli to near Dolesara village is allowed.
ix. Plantation along CCPC shall be carried out. Fruit bearing, neem and local indigenous species shall be planted x. MoEF&CC Notification S.O. 3305(E) dated 07.12.2015 shall be implemented with respect to specific water consumption, zero liquid discharge and revised emission standards, as applicable.
xi. MoEF&CC Notification G.S.R. 02(E) dated 02.01.2014 regarding use of raw exceeding 34% shall be complied with, as applicable.
xii. MoEF&CC Notification on fly ash utilization S.O.763(E) dated 14.09.1999, S.O.979(E) dated 27.08.2003, S.O.2804(E) dated 03.11.2009, S.O.254(E) dated 25.01.2016 and subsequent amendments shall be complied with.
xiii. As proposed, ash pond shall be lined with HDPE liner.
xiv. Third party evaluation/environment audit shall be conducted annually for reviewing the compliance conditions stipulated in the clearances along with the baseline data/ studies carried out and the audit report shall be submitted to Ministry's Regional Office.
xv. Compliance of EC/amendment conditions. Environment (Protection) Act, 1986, Rules and MoEF&CC Notifications issued time to time shall be achieved by an Environment Officer to be nominated by the Project Head of the company who shall be responsible for implementation and necessary compliance timely.
34. All other conditions mentioned in this Ministry's letters of even no. dated 18.03.2011, 04.11.2011, 10.01.2014, 27.03.2015 and 22.12.2016 shall remain the same, as applicable.
This issues with the approval of the Competent Authority.‖
2. The appellant has submitted that the application/letter moved to the Collector regarding acquisition proceedings was not duly considered and that before acquiring of land for development the consequence and adverse impact of development on the environment has not been assessed and considered. It is further submitted that the project proponent has not intimated about the case pending before the court and the site for proposed ash dyke falls within coal mine area of Gare Palma Sector-1, public notice was not given in terms of the directions of the EAC, there is a complete non-application of mind by EAC as the representations of the local residence, who were adversely effected by the project and the issue of forge resolution given by the project proponent was not considered by the EAC. Further, that there was a false inspection done by the State Authorities and there was insufficient technical studies conducted by the respondents.
B. BRIEF FACTS
3. Jindal Power Ltd. (hereinafter "JPL" or "Respondent No. 3") had been granted Environment Clearance on 18.03.2011 for Units 1 and 2 (2x600 MW) and on 04.11.2011 for Units 3 and 4 (2x600MW) for thermal power generation at Tamnar, Tehsil Gharghoda, District Raigarh, Chhattisgarh. While granting the Terms of Reference (TOR), the Respondent No. 1/MOEF&CC approved total 491 Ha. of land for ash dyke comprising of 250 Ha. near Dolesara Village and another 241 Ha. near Rodapali Village. Both these parcels of land were part of the EIA Report submitted to the Respondent No. 4/CECB and had been subjected to the rigors of EIA 2006 ,which included public consultation.
However, to optimize the land requirement for the ash pond, in line with the obligation to utilize 100% ash by the end of four years of commissioning of units, JPL informed Respondent No.1/MOEF &CC that the land near Dolesara village is not being considered for construction of the ash dyke.
44. Resultantly, the ash dyke of 241 Ha. near Rodapali Village was approved by Respondent No. 1/MOEF & CC while granting Environment Clearance dated 18.03.2011. Subsequently, JPL was informed that the approved 241 Ha. of land near Rodapali village formed part of Gare Palma Sector-II Coal Block and thus could not acquire the same. Thus, JPL sought an amendment in Environment Clearance dated 18.03.2011 and 04.11.2011 seeking a change in location of ash dyke from Rodapali to Dolesara. After detailed deliberations during multiple Expert Appraisal Committee (EAC) meetings and upon satisfactory compliance of EAC‟s directions by JPL, EAC, on 28.12.2016 recommended the change in location of ash dyke near Dolesara Village. Based upon the recommendations of the EAC , JPL was granted the impugned amended Environment Clearance dated 26.04.2017 by Respondent no.
1/MOEF&CC. The land acquisition proceedings are on-going, and approximately more than fifty percent of the landowners have received their share of compensation.
C. PROCEEDINGS BEFORE THE TRIBUNAL
5. This Tribunal took the cognizance of the matter and notices were issued to the respondents. In compliance thereof, the respondents have filed the replies which are on record. On the basis of the averments made by the parties, following issues emerge for determination.
ISSUES :-
i. That the appellant is not a person aggrieved within the definition of the Act and has no locus-standi.
ii. Matter of land acquisition or fair compensation or legality of the validity of acquisition positions iii. Environmental law and Applicability of Sustainable Development in making balance between demand and supply of energy-
iv. That insufficient technical studies were conducted and the EAC erred in recommending the project.
v. That the location has been changed, or resolution/NOC passed by the villagers was not correct, the proposed ash dyke falls 5 within coal mine area of another sector or that the project proponent has changed the coordinates of the as dyke and that the Project Proponent has indulged in wilful suppression of facts and has not disclosed authentic information.
Issue No. I D. PRELIMINEARY OBJECTION WITH REGARD TO PERSON AGGRIEVED
6. It is argued by the respondent that the Appellant is a busybody who has a vendetta against JPL and group/promoter companies and has perhaps been set up by a rival to delay its project and cause undue harassment. The alleged grievances of the Appellant are wholly baseless and have been satisfactorily dealt with by the EAC as explained in the subsequent paragraphs. The minutes of the EAC meetings clearly reveal that the Appellant‟s objections were duly noted along with JPL‟s response and considered by the EAC, and only after fully satisfying itself that the amended Environment Clearance dated 26.04.2017 was recommended and granted to JPL.
7. It is further submitted that appellant has been regularly causing harassment and frivolous and malafide litigations have been filed which is more than six cases and reliance has been placed on Vijay Singh vs Balaji Grit Udyog & Ors. (MANU/NGT/0036/2014) wherein the Tribunal has imposed a cost on the frivolous petition. The respondent has relied on P. Seshadri v. S. Mangati Gopal Reddy and Ors. MANU/SC/0263/2011 : (2011) 5 SCC 484. The relevant paragraphs are quoted below :-
18. The High Court has committed a serious error in permitting Respondent 1 to pursue the writ petition as a public interest litigation. The parameters within which public interest litigation can be entertained by this court and the High Court, have been laid down and reiterated by this Court in a series of cases. By now it ought to be plain and obvious that this Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals i.e. busybodies, having little or no 6 interest in the proceedings. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at the threshold.
22. Similar observations had been made by this Court in Ashok Kumar Pandey v. State of W.B. We may reiterate here the observations made in SCC para 12 herein, which are as follows:
(SCC p. 357)
12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking.
It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, the Court must be careful to see that a body of persons or a member of the public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs.
43. The concept of public interest litigation was discussed in depth by the Hon'ble Apex Court by holding that a petition styled as Public Interest Litigation which is a camouflage to foster the personal disputes is to be thrown out. It was Hon'ble Dr. Arijit Pasayat and P. Sathasivam, JJ in Holicow Pictures Private Limited v. Premchandra Mishra and Ors. reported in MANU/SC/8219/2007 : (2007) 14 SCC 281 the observation was made as follows:
10. In para 98 of the said judgment, it has further been pointed out as follows: (SCC pp. 345-46) 98. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe 7 warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.
12. It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express out opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters-government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenu expecting their release from the detention orders, etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, break the queue muffing their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
15. The court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. The court has to strike a balance between two conflicting interests: (i) nobody 8 should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono public, though they have no interest of the public or even of their own to protect.
18. In S.P. Gupta v. Union of India it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the court under the guise of a public interest litigant. He has also left the following note of caution: (SCC p. 219, para 24) 24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.
8. In the case Vijay Singh vs Balaji Grit Udyog & Ors. Appeal No. 02 of 2014 decided by this Tribunal. The Tribunal observed as follows :
"41. In so far as it relates to the conduct of a party in not approaching the Judicial forum with clean hands, the Hon'ble Apex Court in numerous cases has heavily come down against such conduct by imposing exemplary cost. While decrying the abuse of Public Interest Litigation concept against the very public interest the same was held by the Hon'ble Apex Court in Central Electricity Supply Utility of Orissa VS. Dhobei Sahoo and Ors reported in MANU/SC/1147/2013 : (2014)1 SCC 161. The Hon'ble Apex Court to support its view that Public Interest Litigation cannot be entertained if they are filed in confrontational mode, relied upon observation of Bhagwati J. in the Judgment reported in MANU/SC/0051/1983 : (1984) 3 SCC 161 as follows:9
25. As advised at present, we may refer to certain authorities in the field in this regard. In Bandhua Mukti Morcha v. Union of India Bhagwati, J. (as His Lordship then was) had observed thus: (SCC p. 183, para 9)
9...When the Court entertains public interest litigation, it does not do so in a caviling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the constitutional objectives.
42. Again taking serious note of the filing of Public Interest Litigation by individuals for settling their personal scores the Hon'ble Apex Court in P. Seshadri v. S. Mangati Gopal Reddy and Ors. MANU/SC/0263/2011 : (2011) 5 SCC 484 has observed in the following paragraphs:
18. The High Court has committed a serious error in permitting Respondent 1 to pursue the writ petition as a public interest litigation. The parameters within which public interest litigation can be entertained by this court and the High Court, have been laid down and reiterated by this Court in a series of cases. By now it ought to be plain and obvious that this Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals i.e. busybodies, having little or no interest in the proceedings. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at the threshold.
21. This Court in Neetu v. State of Punjab emphasised the need to ensure that public interest litigation is not misused to unleash a private vendetta against any particular person. In SCC para 7, it is observed as follows: (SCC p. 619) 10
7. When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object.
22. Similar observations had been made by this Court in Ashok Kumar Pandey v. State of W.B. We may reiterate here the observations made in SCC para 12 herein, which are as follows: (SCC p. 357)
12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens.
The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, the Court must be careful to see that a body of persons or a member of the public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs.
43. The concept of public interest litigation was discussed in depth by the Hon'ble Apex Court by holding that a petition styled as Public Interest litigation which is a camouflage to foster the personal disputes is to be thrown out. It was Hon'ble Dr. Arijit Pasayat and P. Sathasivam, JJ in Holicow Pictures Private Limited v. Premchandra Mishra and Ors. reported in MANU/SC/8219/2007 : (2007) 14 SCC 281 the observation was made as follows:
1110.5. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, the said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect.
Public interest litigation which has now come to occupy an important field in the administration of law should not be 'publicity interest litigation' or 'private interest litigation' or 'politics interest litigation' or the latest trend 'paise income litigation'..... If not properly regulated and abuse averted, it becomes also a tool in unscrupulous hands to release vendetta and wreak vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of a knight errant borne out of wishful thinking. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. The courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in Janata Dal v. H.S. Chowdhary and Kazi Lhendup Dorji v. CBI. A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. (See Ramjas Foundation v. Union of India and K.R. Srinivas v. R.M. Premchand).
6. It is necessary to take note of the meaning of the expression 'public interest litigation'. In Stroud's Judicial Dictionary, Vol. 4 (4th Edn.), 'public interest' is defined thus:
Public interest-(1) A matter of public or general interest "does not mean that which is interesting as 12 gratifying curiosity or a love of information or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.‖
12. It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express out opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters-government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenu expecting their release from the detention orders, etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, break the queue muffing their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
13. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be 13 extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-
seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, the court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
15. The court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. The court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono public, though they have no interest of the public or even of their own to protect.‖ 14
9. In the case of Rajiv Suri vs. Delhi Development Authority Hon „ble the Apex Court in 2021 SCC online (SC 7) discussing the merit review by the National Green Tribunal under Section 16 of the National Green Tribunal Act, 2010 the Court observed as follows :
"500. Before we delve into the analysis further, we would address the call for a merits review in this challenge to EC. The expression ―merits review‖ needs to be put into its correct perspective. For that we must immediately advert to Section 16 of the National Green Tribunal Act, 2010 . It provides for the appellate jurisdiction of NGT thus: ―16. Tribunal to have appellate jurisdiction. --Any person aggrieved by,--
...
...
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);
...
...
may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:
501. The provision empowers ―any aggrieved person‖ to file an appeal against the grant of EC for the scrutiny of NGT. The scheme of 2010 Act, as found in Sections 17-
19, provides for a host of remedies to the aggrieved persons, including compensation and other reliefs depending on the injury. Section 20 lays down the basic principle on which the tribunal is expected to exercise its jurisdiction. It states thus:` ―20. Tribunal to apply certain principles. --The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.‖ 15
502. The expression ―merits review‖ signifies that the tribunal must scrutinize the merits of the decision and must not restrict itself to a cursory examination of the process of decision making. Section 20 makes it amply clear that the principles of sustainable development, precautionary principle and polluter pays principle must inform its examination. The requirement of merits review is to be understood in the light of the statutory jurisdiction of NGT under the 2010 Act and not beyond it. Statutorily, NGT is vested with a limited mandate to hear an appeal before it in light of the aforesaid principles and grant limited reliefs as provided in the 2010 Act. Section 16 specifies that the jurisdiction of NGT may be invoked when any person either feels that the project should not be carried forward or should be subjected to certain safeguards under the Environment Protection Act, 1986. The NGT, therefore, is a body meant for the assessment of a limited facet of the project i.e., environmental facet and is not meant to be a panacea for all ills. The requirement of merits review, as exposited in Hanuman Laxman Aroskar , is to be understood as a review within the statutory jurisdiction of NGT.
503. NGT is not a plenary body with inherent powers to address concerns of a residuary character. It is a statutory body with limited mandate over environmental matters as and when they arise for its consideration. In a cause before it, NGT cannot directly go on to adjudicate on concerns of violation of fundamental rights and once the contours of a subject matter traverse the scope of appeal from a grant of EC, the merits review by tribunal cannot traverse beyond the scope of jurisdiction vested in it by the statute.
504. We deliberated upon whether the question of EC needs to be sent for consideration of NGT. However, none of the issues raised before us demonstrate a requirement of in-depth technical analysis in this case. Mere suspicion cannot become a ground for parting away with a subject matter which is pending for this Court's consideration and deserves complete justice in the cause.
16505. No doubt, by way of the exclusive jurisdiction clause in Section 29, the jurisdiction of civil Courts is barred on these subject matters, but there is no impact whatsoever on the jurisdiction of this Court, being a Court of record and bestowed with original and appellate jurisdiction including superior powers to do complete justice under Article 142 in special circumstances. In other words, the jurisdiction of this Court is not controlled or guided by the form of jurisdiction vested in NGT in terms of the 2010 Act. The considerations before this Court can be diverse and expansive and the moment a lis comes before this Court, the subject matter comes out of the ambit of limited statutory consideration and falls in the realm of plenary constitutional consideration - wherein the duty of the Court is to do complete justice between the parties before it and in public interest jurisdiction to a class of persons.
506. Indubitably, environment and development are not sworn enemies of each other. It would be an anomalous approach to consider environment as a hurdle in development and vice-versa. The entities like EAC and NGT are created to strike a just balance between two competing interests and a time-tested principle of striking this balance is timely invocation of mitigating environmental measures amidst a development activity. True that mere application of certain mitigating measures may not alleviate environmental concerns in all matters and in some circumstances, the project is simply incomprehensible with the environment. But as long as a legitimate development activity can be carried on in harmony with the idea of environmental protection and preservation including sustainable development, the Courts as well as expert bodies should make their best endeavour to ensure that harmony is upheld and hurdles are minimized by resorting to active mitigating measures.
507. The principle of sustainable development and precautionary principle need to be understood in a proper context. The expression ―sustainable development‖ incorporates a wide meaning within its fold. It contemplates that development ought to be sustainable with the idea of preservation of natural environment for present and future generations. It would not be without 17 significance to note that sustainable development is indeed a principle of development - it posits controlled development. The primary requirement underlying this principle is to ensure that every development work is sustainable; and this requirement of sustainability demands that the first attempt of every agency enforcing environmental rule of law in the country ought to be to alleviate environmental concerns by proper mitigating measures. The future generations have an equal stake in the environment and development. They are as much entitled to a developed society as they are to an environmentally secure society. By Declaration on the Right to Development, 1986, the United Nations has given express recognition to a right to development. Article 1 of the Declaration defines this right as:
―1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.‖
508. The right to development, thus, is intrinsically connected to the preservance of a dignified life. It is not limited to the idea of infrastructural development, rather, it entails human development as the basis of all development. The jurisprudence in environmental matters must acknowledge that there is immense inter-
dependence between right to development and right to natural environment. In International Law and Sustainable Development, Arjun Sengupta in the chapter ―Implementing the Right to Development ‖ notes thus:
―... Two rights are interdependent if the level of enjoyment of one is dependent on the level of enjoyment of the other...‖
509. The concern of the regulatory agencies is to weed out the unsustainable from the development plan and to parallelly ensure that right to development is not trumping upon any other right. Sengupta further notes: ―... There is an improvement in the right to development only if at least one of the constituent rights improves and no other right 18 deteriorates or is violated, which means the right to development conforms to the principle of the indivisibility of human rights... .‖
510. The precautionary principle duly mandates that all agencies of the State, including Courts, must make their best endeavour to ensure that precaution is instilled in the process of development. The very requirement of prior EC is born out of this need for precaution. It is a manifestation of the precautionary principle in India and if development work is carried out in furtherance of prior EC and such EC is not vitiated by illegality, it would be a case of proper adherence with the precautionary principle.
511. In matters of balancing between competing environmental and development concerns, the Court has to be project-specific. In environmental matters, even one fact here or there may have the effect of attributing a totally distinct character to the project and accordingly, the scope of judicial review may vary. This sentiment is best reflected in the following words of Professor Schotland who proposed ranking of standards of judicial review according to strictness:
―3. ..... I have always thought of scope of review as a spectrum, with de novo at one end, with unconstitutionality at the other end, and in between a number of what I will call ―mood-
points‖ or degrees of judicial aggressiveness or restraint, such as preponderance of the evidence, clearly erroneous, substantial evidence on the whole record, scintilla of evidence, abuse of discretion and last, right next to or even into unconstitutionality, arbitrary and capricious. And since these are only ―mood- points‖, there is considerable room within each for difference.‖
512. The proper balance of judicial review in environmental matters in a constantly developing society is a matter of great debate across all jurisdictions. In Ethyl Corporation v. EPA , the observations of Judge Wright present a just balance. He observed thus:
19―There is no inconsistency between the deferential standard of review and the requirement that the reviewing court involve itself in even the most complex evidentiary matters; rather, the two indicia of arbitrary and capricious review stand in careful balance. The close scrutiny of the evidence is intended to educate the court. It must understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed;
the choices open to the agency and those made.
The more technical the case, the more intensive the court's effort to understand the evidence, for without an appropriate understanding of the case before it the court cannot properly perform its appellate function. ...‖
513. He then notes the need for realising the limits of judicial function thus:
―But the function must be performed with conscientious awareness of its limited nature. The enforced education into the intricacies of the problem before the agency is not designed to enable the court to become a superagency that can supplant the agency's expert decision- maker. To the contrary, the court must give due deference to the agency's ability to rely on its own developed expertise. The immersion in the evidence is designed solely to enable the court to determine whether the agency decision was rational and based on consideration of the relevant factors. It is settled that we must affirm decisions with which we disagree so long as this test is met...‖.
(emphasis supplied)
514. They must always look for a careful balance when two equally relevant interests compete with each other. The task may not be easy, but is the only reasonable recourse. For the proper application of these principles, 20 the first and foremost thing to be kept in mind is the nature of the project. In the present case, the subject project is an independent building and construction project wherein one-time construction activity is to be carried out. It is not a perpetual or continuous activity like a running industry. It is absolutely incomprehensible to accept that a project of this nature would be unsustainable with the needs and aspirations of future generations. Furthermore, the increase in footprint is not shown to be substantial and the inclusion of new members of Parliament after the delimitation exercise is anyway going to lead to an inevitable increase in footprint (floating though) that cannot be countenanced as a concern here.
515. We, therefore, upon a thorough examination, decline to interfere in the grant of EC. The expertise developed by the EAC cannot be undermined in a light manner and as noted above, due deference must be accorded to expert agencies when their decisions do not attract the taint of legal unjustness . We, however, feel the need to record that the mitigating measures must be observed by the project proponent in letter and spirit during the construction and operational phase. Waste management methods, inclusive of hazardous wastes, must be subject to regular monitoring. The construction debris must be subjected to immediate removal as per the Construction & Development Plan. The project proponent may also install permanent high-capacity smog tower as part of the Project and use adequate number of smog guns to minimise pollution levels during the construction activity is in progress on the site.
10. In reply thereof the Learned Counsel for the appellant had submitted that Principal Bench of this Hon'ble Tribunal in the matter of Vimal Bhai vs. Ministry of Environment & Forest & Others (Appeal No. 5 of 2011) has settled the proposition regarding the definition of aggrieved person as well as the locus standi of the person. The Honble Tribunal in a judgment dated 14.12.2011 held that -
21"A reading of Section 2(j)(i) to (viii) would reveal that any individual, Hindu undivided family, Company, Firm, an association of persons or a body of individuals whether incorporated or not, trustees of a trust, a local authority and every artificial juridical person not falling within any of the preceding subclauses, would indicate "person" who can maintain an application/appeal under the NGT Act. But, it is the argument of the learned counsel of the Respondent that even the above defined person shall be a person either aggrieved or injured directly or indirectly and not otherwise.
Then the question arises whether in the environmental matters, a person who is really aggrieved/ injured shall alone be permitted to approach this Tribunal. A combined reading of the above sections, would indicate, that any person whether he is a resident of that particular area or not whether he is aggrieved and/or injured or not, can approach this Tribunal. In such situations, it is of course necessary to scan and find out the credentials of the applicant/appellants as to their true intentions and motives. No doubt that in the present case though the appellants have participated in the EC proceedings and they have not challenged the same. However, that does not mean that they cannot challenge the FC proceedings on any available legal grounds (However, it is to be noted that in the guise of challenging the FC, the appellants cannot be permitted to raise the grounds which might be raised, had the EC was challenged). Appellants apprehend a great danger and disaster to the environment and ecology, if the project is not properly envisaged and does not satisfy the principles of sustainable development and precautionary principles as is mandated under Section 20 of the NGT Act. In the matters of environmental cases, any individual or persons and body of individuals can agitate as to the correctness of the study of environment and ecology made by the granting authority. Further, nothing substantial has been demonstrated to doubt the credentials of the appellants except saying that they (appellants) are not aggrieved and/or injured person (s) under the Act 22 and they are a busy body and their motives are ulterior. The person injured per-se as occurred in Section 1B (2) of the NGT Act is only for the purpose of claiming relief, compensation or settlement of disputes, is altogether different from the person aggrieved as available in Section ld. person aggrieved and person injured are two different words which connote different meaning. Under Section 16 any person aggrieved can approach this Tribunal by way of filing an appeal. Whereas, under Section 1B (2) the person injured per-se, whether it is an individual or a body of individual or a social organization or a Hindu joint family etc. Further under Section 14 and 16 any person can approach this Tribunal for appropriate relief including the relief under Section 18. "
"From the above it is clear that the State shall endeavour and safeguard the environment and wild life and it is the fundamental duty of the citizen to improve the natural environment including forests, lakes, rivers, and wildlife and also to have compassion for living creatures. Once, the protection and improving the natural environment is the fundamental lty of a citizen, any person can approach this Tribunal and agitate his grievance as to protection and improvement of the natural environment. The statutory provisions are subservient to the constitutional mandates. The person as defined or person aggrieved as occurs in Section 2 (j) 16 and 18 (2) of the NGT Act cannot be placed above ,every citizen" as appears in Article S1(A) of the Constitution of India. Once the mandate is of every citizen, any person can approach this Tribunal complaining environmental threat in the activities of the State or any organization or individual.
Therefore, we are of the view that the appellants are interested persons in the environment and ecology of the area, though they are not directly affected/ injured at this point of time. But, they can be definitely called aggrieved persons since they 23 apprehend some danger, if the project is launched without taking proper precautions. The person aggrieved in environmental matters must be given aliberal construction and needs to be flexible. Therefore, we are of the considered opinion that persons like the appellants are also entitled to approach this Tribunal and the appeal is maintainable.‖ That in SAVE MON REGION FEDERATION VS. UNION OF INDIA AND ORS. (M.A, NO, 704 OF 2072 in APPEAL NO. 39 OF 2072) it has been held that:-
"18. Law gives a right to 'any person' who is 'aggrieved' by an order to prefer an appeal. The term 'any person' has to be widely construed. It is to include all legal entities so as to enable them to prefer an appeal, even if such an entity does not have any direct or indirect interest in a given project. The expression 'aggrieved' again, has to be construed liberally. The framers of law intended to give the right to any person aggrieved, to prefer an appeal without any limitation as regards his locus or interest. "
The National Green Tribunal in Krishan Kant Singh v. M/s. Triveni Engg. Industries Ltd. (O.A NO.317/2O14) held that:
"Under the provisions of the NGT Act, any aggrieved person can approach the Tribunal for redressal of his grievances in relation to environment within the ambit and scope of Sections 14, 16 and 18 of the NGT Act. The legislative object appears to be to catalyse the access to environmental justice, which need not be circumscribed by strict rule of locus standi in legal prescriptions."
11. After going through the contention raised by the Learned Counsel for the parties, we are of the view that since matter of environment has been raised in this appeal and the respondents have filed their reply and the records are available thus it is desirable to proceed in accordance with the merit of the case.
Thus, we proceed to discuss the matter on the merit.
24II. MATTER OF LAND ACQUISITION OR FAIR COMPENSATION OR LEGALITY OF THE VALIDITY OF ACQUISITION POSITIONS
12. The appellant has raised the issue of acquisition proceedings and submitted that that the EAC had clearly directed that the Project Proponent had to make the public aware about the proposed new location of ash pond for which it was required to publish Public Notices intimating the Public about such change by publishing in the leading local newspapers, Gram Panchayats, Website of PP etc. and asking for comments from the Public in this regard.
13. It is stated by the Appellant that the Project Proponent had failed to get published the Public Notices as had been directed by the EAC in it's 50th meeting held on 28th-29th January, 2016. The purpose of publication of these Public Notices was to inform Public at large about the coming up of the Ash Dyke at Dolesara and call for comments from Public and deal with any objection or view on this change of Ash Dyke. It is alleged that the Project Proponent has resorted to forgery/photo-shopping of the Public Notice claimed to have been published in the Newspaper and produced the same before the EAC to show compliance from their end. It is stated that a forged/photo shopped Public Notice shown to the EAC cannot be regarded as compliance as the same amounts to no notice in the eyes of law. Therefore, the Project Proponent has not followed the directions given by the EAC in it's 50th meeting.
14. That with respect to the issue of Publication of the Public Notices in two leading Newspapers it is stated that this has not been compiled by the Project Proponent. Regarding newspaper Naveen Kadam the PIO Collectorate Raigarh gave it's Response dated 22.05.2017. In Response given by the PIO Collectorate Raigarh, original of the Newspaper Naveen Kadam dated 03.04.2016 was provided to the Appellant. On perusal of the newspaper Naveen Kadam it was apparent that the Original News paper of Naveen Kadam did not have the Public Notice which were required to be published in it by the Project proponent.
15. By filing the reply the State of Chhattisgarh has submitted that the application deserves to be dismissed on the ground that the allegation raised by the 25 appellants, majorly pertains to allotment of land subsequently seeking relief of quashment of Environment Clearance (EC) which is not covered under the ambit of the schedule of the National Green Tribunal and appropriate remedy would be to approach before the competent court.
16. The respondent nos. 1, 2, 3 & 5 have submitted that the grievance of the appellant relates to the land, consisting of private agriculture land and government lands, which were sought to be acquired are being used as ash dyke. The further contention of the petitioner are that as provided under Section under Section 4 (1) of the PESA Act, an appropriate resolution has not been passed by the concerned Gram Panchayat, Gram Dolesara and the resolution passed by the Gram Sabha Dolesara based upon which Section 11 preliminary notification has been issued itself was a forged one, that exemption under Chapter-Il and III of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 20l3 have not been followed, that, there is wide spread dissent and angst in the local populace with regard to acquisition of their lands as the petitioners apprehend that, their lands and livelihood would be taken away without proper consultation with the Gram Sabha, no proper environmental and social impact assessment has been done and therefore the entire exercise of acquiring land, for construction of ash dyke for respondent no. 6 was not proper.
17. That, a letter dated 25.08.2014 issued by the Office of respondent no. 5 to respondent no. 2 stating that, the Department of Commerce and Industries, State of Chhattisgarh has principally agreed for acquisition of 224.379 hectares of private land at village Dolesara and North Taregaon Tahsil Tamnar District Raigarh, vide letter dated 06.05.2013 and the same had been sent to the Collector by an earlier letter dated 06/06 /2O13 and therefore a compensation sheet is being sent.
18. That Section 4 (i) of the provisions of Panchayat (Extension to the Scheduled Areas) Act, 1996 reads as follows:-
26"4(i) the Gram Sabha or the Panchayat at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas; the actual planning and implementation of thee projects in the Scheduled Areas shall be coordinated at the State level."
19. That, thereafter, in consonance with Section 11 of the Act, 2013 a proposal was sent for notification under section 11 of the Act, 20l3 to the respondent no. 3 for initiating land acquisition proceedings for the respondent no. 5.
20. The Notification under Section 1I of the Act, 2013 was to be issued. Section 11 of the Act, 2013 reads as follows:
11. Publication of preliminary notification and power of officers thereupon.. (1 Whenever, it appears to the appropriate Government that land in any area is required or likely to be required for any public purpose, a notification (hereinafter referred to as preliminary notification) to that effect along with details of the land to be acquired in rural and urban areas shall be published in the following manner, name[y:-
(a) in the Official Gazette;
(b) in two daily newspapers circulating in the locality of such area of which one shall be in the regional language
(c) in the local language in the panchayat, ' Municipality or Municipal Corporation, as the case may be and in the offices of the District Collector, the sub-divisional Magistrate and. the Tehsil
(d) uploaded on the website of the appropriate Government;
(e) in the affected areas, in such manner as m.ag be prescribed.
(2) Immediately after issuance of the notification under sub-
section (1) the concerned-Gram Sabha or Sabhas at the village level, municipalities in case of municipal areas and the Autonomous Councils in case of the areas referred. to in the Sixth Schedule to the Constitution, shall be informed of the contents of the notification issued under the said. sub-section in all cases of land acquisition at a meeting called especially for this purpose.
(3) The notification issued under sub-section (1) shall also contain a statement on the nature of the public purpose involved, reasons necessitating- the displacement of affected persons, summary of 27 the Social Impact Assessment Report and particulars of the administrator appointed for the- purposes of rehabilitation and resettlement under Section 43.
(4) No person shall make any transaction or cause transaction of land specified in the preliminary notification or create any encumbrances on such land from the date of publication of such notification till such time as the proceedings under this Chapter are completed;
Provided that the Collector may, on tge application made by the owner of the land so notified, exempt special circumstances to be recorded in writing, such owner for the operation of this sub- section;
Provided further that any loss or injury suffered. by any person due to his willful violation of this provisions shall not be made up by the Collector.
(5) After issuance of notice under sub-section (1), the Collector shall, before the issue of a declaration und.er Section 19, undertake and complete the exercise of updating of land records as prescribed within a period. of two months.
In consonance of the Act, 2013, a notification under Section 11 was issued on 31.08.2015 in the Official Gazette on 18.09.2015.
21. That the information about the notification was circulated in two daily newspapers having circulation in the local area viz. Dainik Jankarm and Nai Dunia dated 29.10.2015 and thereafter on 13.09.2015 the concerned villages and in public places information was circulated by affixing notice at conspicuous places and by public proclamations.
22. That vide Gazette Notification dated 02.03.2015 it was notified by the State Government that, being empowered under Section 10-A of the Act, 2013, the State Government exempted following projects from application of the provisions of Chapter-II and III of the said Act viz:-
i. Such projects vital to national security or defence of India and every part thereof, including preparation for defence, or defence production;28
ii. Rural infrastructure including electrification iii. Affordable housing and housing for the poor people;
iv. Industrial corridors; and v. Infrastructure and social infrastructure projects including projects under public private partnership where the ownership of land continues to vest with the Government
23. That, there is no infirmity or illegality in the land acquisition proceedings. It is submitted that, the petitioners have unnecessarily attempted to reck up a controversy by contending that, the Gram Sabha on 22.08.2015, in the resolution no.8 of which consent was given for acquisition of land was a shame and in fact, on the same date another Gram Sabha was held in which the villagers opposed the acquisition of land.
24. The Tehsildar Tamnar District Raigarh, conducted a detail enquiry and submitted the same for perusal of the respondent no. 3 and a copy of the same has been marked and enclosed as Annexure R-1/10. The conclusion of the enquiry is that, the then Sarpanch and the then Gram Panchayat Secretary along with other villagers made statements that, the resolution no' 8 agreeing for acquisition of land was passed by the Gram Sabha and these persons further also agreed about having put their signatures in the Gram Sabha register.
25. The appeal raises preliminary issue with regard to the Fair Compensation and Transparency in Land Acquisition and Rehabilitation and perusal of the appeal reveal that the main issue as expressed by the appellant is that the method and manner of the acquisition of land is not proper and is pending challenge before Hon‟ble the High Court of Chhattisgarh in Padumlal Patel vs. State of Chhattisgarh Writ Petition No. (C) 1795 of 2016. The respondents have submitted a chart depicting the issues involved in this appeal and in Writ Petition pending before the High Court of Chhattisgarh, the facts of which is as follows:
29S. Extracts from Appeal No. 24/2017 Extracts from Reply of State of Chhattisgarh in W.P. (c) No. 1795 No. before this Hon 'ble Tribunal of 2016 @ Annexure R 3/5 @ pg.
361 filed before Hon'ble High Court of Chhattisgarh in W.P. (c) No. 1795 of 2016 1 Therefore, Though The EAC Noted That 15. It is therefore, submitted that, As To Why The ―No Objection‖ there is no infirmity or illegality in the Document Dtd. 22.08.2015 Attached land acquisition proceedings. It is To The PP's Letter Dated 07.07.2016 submitted that, the main contention Circulated To The EAC Member Had and thrust of the petitioners in the Not Been Placed Before The EAC, entire petition is that, the Gram When The Case Was Earlier Taken Up Sabha based upon the entire By The EAC In Its January, 2016 structure of land acquisition has been Meeting (I.E. Five Months After The ―No erected i.e. Gram Sabha dated Objections‖‖). The EAC Had Further 22.08.2015 itself was a shame and Asked The Project Proponent that to no such Gram Sabha had taken clarify the discrepancy in the area for place. The contentions of the the ash dyke - while the Gram petitioners are vehemently denied. It Panchayat mentioned a total of is submitted that, the petitioners have approximately 190.5 he, the unnecessarily attempted to reck up a requirement indicated by the PP in the controversy by contending that,, the Jan. ,2016 meeting of the EAC was Gram Sabha dated 22.08.2015, in 239 ha (as reproduced in para 2.7.1 the resolution no. 8 of which consent
(iii) above. The EAC subsequent to the was given for acquisition of land was 59th meeting had failed to considered a scheme and in fact, on the same that the Project Proponent had failed to date another Gram Sabha was held provide information on both the issued in which the villagers resolutely cited above and the recommendation opposed the acquisition of land.
thus made by the EAC without consideration of the above issues is bad in law and needs to be rejected.
In order to resolve the controversy and also to enquire into the veracity of the truth of the complaint made by villagers, which has been recorded in the order-sheet dated 07.01.2016, the respondent no. 3 directed the Tehsildar to undertake a detail enquiry to cull out the truth.
25. Reply as to para 8.3 : It is submitted that, the document Annexure P/5 does not have any authenticity or credibility especially in view of the fact that, the intimation about the holding of the said Gram 30 Sabha and passing of the resolution was informed to the Chief Executive Officer, Janpad Panchayat Tamnar (Annexure R-1/5) and furthermore, even upon enquiry by the concerned S.D.O., a copy of which is being marked and enclosed herewith as Annexure R-1/11 the veracity of the said Gram Sabha was tested and fund to be true hence, the contentions of the petitioners that the Gram Sabha dated 22.08.2015 was a shame are denied.
G. Because the Appellant sent a 23. Reply as to para 8.2 : The representation dated 13.07.2016 to the contentions of the petitioners that, a EAC where he had taken up the Gram Sabha held on 07.10.2015 is specific point that the Gram Sabha of denied. It is furthermore submitted Dolesara unanimously passed that, if any such Gram Sabha was resolution on 07.10.2015 against land held then the proceedings of the same acquisition for ash dyke as land being ought to have been reported to the agricultural land. Further, the local Chief Executive Officer, Janpad villagers have written letters to the Panchayat Tamnar as per the District Collector on 17.11.2015 and provisions of Panchayat Raj 05.01.2016 stating that no resolution Adhiniyam, 1993 and as per PESA has been passed by the Gram Sabha Act, 1986.
in favour of the setting up of the Ash Dyke by them and the resolution shown by the project proponent is forged and fabricated document but the EAC has failed to consider the above representation/letters.
FALSE INSPECTION DONE BY THE 30. Reply as to para 8.8:The STATE AUTHORITIES. contentions of the petitioners provide
2. That the revenue authorities namely no benefit to the case of the the Patwari and Tehsildar, Ranger petitioners which they are attempting (Forest) and the Regional Officer, to put up. In fact, the petitioners are CECB had falsified the Inspection unnecessarily disputing the report Report dated 07.09.2012 to obtain without any cogent evidence and consent for the land acquisition in raising disputed questions which the following way: cannot be agitated upon by the a. The distance of the proposed Hon'ble Court in the writ jurisdiction.
land from the village As per the well settled law disputed settlement/ basti has been questions cannot be agitated in writ shown as 400 m whereas in petition. It is furthermore submitted reality it is a mere 50 m that, substantial compliance of 31 adjacent from the village Section 16 (5) and (6) has been settlement. done b. It has been stated that there Furthermore, it is submitted that, are only a few trees in the merely sending a copy of the letter to area, whereas there has not the Collector does not falsify the been a proper physical detail report submitted by the verification of trees which concerned authority vide inspection several thousand in number. report dated 07.09.2012.
Furthermore, at this juncture it would
c. There was no
also be pertinent to mention herein
inspection/panchnama in the
that, after the report, demarcation etc.
presence of the villagers.
in consonance with the provisions of
d. No mention has been made of PESA Act, a Gram Sabha was also
the water bodies lying in the held on 22.08.2015 the veracity of
land proposed for acquisition.' the same has been enquired into by
Accordingly the villagers wrote conducting an enquiry and also
to the Collector on 05.01.2016 recording the statement of persons of stating that the aforesaid report, the village.
prepared without any reference
to the villagers was based on
the false premises, registered
their objection, and they
requested that the Collector
conduct a physical verification.
Copy of the site inspection
Report dated 07.09.2012 to
obtain consent for the land
acquisition letter is annexed.
Since the matter is pending before the High Court of Chhattisgarh thus in terms of the National Green Tribunal Act and in terms of Juridical propriety when a court of superior or concurrent jurisdiction is seized of the same issue, attempt to raise the issue of Fair Compensation or validity of Land Acquisition before this Tribunal is not tenable. Issue is decided accordingly.
E. III. Environmental law and Applicability of Sustainable Development in making balance between demand and supply of energy-
26. India has chosen a path where "Economy and Ecology both can go together and can move forward." For making the improvement and maintaining the environment an example should be there that when it comes to protecting the environment, it is not necessary to block development work while doing so. The 32 country is increasing the installed renewable energy capacity but it still requires energy for development.
27. Section 3 of the Environment (Protection) Act, 1986 empowers the Central Government to take all such measures for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. One of the measures provided in Section 3 (2)
(v) is restriction of areas in which any industries, operations or processes or class of industries shall not be carried out or shall be carried out subject to certain safeguards. The Environment (Protection) Rules, 1986 were made in exercise of power conferred by Sections 6 and 25 of the Environment (Protection) Act, 1986. According to Rule 5, the Central Government may prohibit or restrict the location of industries and the carrying on of processes and operations in different areas. In exercise of the power conferred on the Central Government by Sub-Clause (i) and Clause (v) of Sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Clause (b) of Sub rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, the Ministry of Environment and Forests, Government of India issued a Notification on 14.09.2006 directing construction of new projects or activities or the expansion or modernization of existing projects or activities listed under the Schedule to the Notification shall be undertaken only after prior environmental clearance from the Central Government or the State Level Environment Impact Assessment Authority.
28. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain 33 the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations. A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focusing on the structural norms which guide institutional decision making, rule of law frameworks recognize the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed. A modern rule of law framework is hence comprehensive in its sweep and ambit. It recognizes that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance.
29. The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools - conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges - of how they have been shaped by humanity‟s interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity‟s actions have charted. The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognizes that the „law‟ element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all 34 stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats.
The environmental rule of law seeks a unified understanding of these concepts.
There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part.
Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connects which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries.
The rise in the oceans threatens not just maritime communities. The rises in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learning‟s of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognizes the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention.
Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance - of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and 35 institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today.
30. In its decision in Hanuman Laxman Aroskar vs Union of India,[2019] 15 SCC 401 the Court, recognized the importance of protecting the environmental rule of law. The court observed:
―142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem. ―143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement -- both in developed and developing countries alike ...
―156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution.‖ 36
49. In its first global report on environmental rule of law in January 2019, the United Nations Environment Programme (―UNEP‖) has presciently stated:
―If human society is to stay within the bounds of critical ecological thresholds, it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet. Environmental rule of law offers a framework for addressing the gap between environmental laws on the books and in practice and is key to achieving the Sustainable Development Goals.
Successful implementation of environmental law depends on the ability to quickly and efficiently resolve environmental disputes and punish environmental violations. Providing environmental adjudicators and enforcers with the tools that allow them to respond to environmental matters flexibly, transparently, and meaningfully is a critical building block of environmental rule of law.‖
50. The need to adjudicate disputes over environmental harm within a rule of law framework is rooted in a principled commitment to ensure fidelity to the legal framework regulating environmental protection in a manner that transcends a case-by-case adjudication. Before this mode of analysis gained acceptance, we faced a situation in which, despite the existence of environmental legislation on the statute books, there was an absence of a set of overarching judicially recognized principles that could inform environmental adjudication in a manner that was stable, certain and predictable. In an article in the Asia-Pacific Journal of Environmental Law (2014), Bruce Pardy describes this conundrum in the following terms:
―Environmental regulations and standards typically identify specific limits or prohibitions on detrimental activities or substances. They are created to reflect the principles and prohibitions contained in the statute under which they are promulgated. However, where the contents of the statute are themselves indeterminate, there is no concrete rule or set of criteria to apply to formulate the standards. Their development can therefore be highly political and potentially arbitrary. Instead of serving to protect citizens' environmental welfare, an indeterminate environmental law facilitates a utilitarian 37 calculus that allows diffuse interests to be placed aside when they are judged to be less valuable than competing considerations.‖
31. However, even while using the framework of an environmental rule of law, the difficulty we face is this - when adjudicating bodies are called on to adjudicate on environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating upon environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations that fall for judicial consideration. The determination of such harm requires access to scientific data which is often times difficult to come by in individual situations.
32. In an article in the Georgetown Environmental Law Review (2020), Arnold Kreilhuber and Angela Kariuki explain the manner in which the environmental rule of law seeks to resolve this imbroglio:
―One of the main distinctions between environmental rule of law and other areas of law is the need to make decisions to protect human health and the environment in the face of uncertainty and data gaps. Instead of being paralyzed into inaction, careful documentation of the state of knowledge and uncertainties allows the regulated community, stakeholders, and other institutions to more fully understand why certain decisions were made.‖ The point, therefore, is simply this - the environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law.38
33. In a recent decision of the Court in Bengaluru Development Authority vs Sudhakar Hegde 2020 SCC online sc 328, the Hon‟ble Supreme Court held:
―107. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth...
―108. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions...
―109. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.‖
34. In Lal Bahadur vs. State of Uttar Pradesh [2018 ]15 SCC 407, the Court underscored the principles that are the cornerstone of our environmental 39 jurisprudence, as emerging from a settled line of precedent: the precautionary principle, the polluter pays principle and sustainable development. This Court further noted the importance of judicial intervention for ensuring environmental protection. In a recent decision in State of Meghalaya & others vs All Dimasa Students Union,[2019] 8 SCC177 this Court reiterated the key principles of environmental jurisprudence in India, while awarding costs of Rs. 100 crores on the State of Meghalaya for engaging in illegal coal mining.
The UNEP report (supra) also goes on to note:
―Courts and tribunals must be able to grant meaningful legal remedies in order to resolve disputes and enforce environmental laws. As shown in Figure 5.12, legal remedies are the actions, such as fines, jail time, and injunctions, that courts and tribunals are empowered to order. For environmental laws to have their desired effect and for there to be adequate incentives for compliance with environmental laws, the remedies must both redress the past environmental harm and deter future harm.‖ The above discussion puts into perspective our decision in the present appeals, through which we shall confirm the directions given by the NGT in its impugned judgment. The role of courts and tribunals cannot be overstated in ensuring that the ‗shield' of the ―rule of law‖ can be used as a facilitative instrument in ensuring compliance with environmental regulations.
35. The Court in State of M.P. vs. Centre for Environment Protection Research & Development, [2020] 9 SCC 781 held as follows:
―41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.40
―42. In view of the definition of ―substantial question relating to environment‖ in Section 2(1)(m) of the NGT 14 Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large.
―43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments.
―44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I.‖
36. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the 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 bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship".
This indicates that while applying the concept of "Sustainable Development" one has to keep in mind the "Principle of Proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand.
41F. IV. Insufficient technical studies were conducted and the EAC erred in recommending the project.
37. It is contended by the appellant that:
a. In EAC's in it's 50th meeting has clearly stated that:-
"(2.7.3) After detailed deliberation the Committee sought the following and deferred the decision on the proposal.
(i) Hydro-geological study of the proposed ash pond area for a minimum one month.
Further on 29th -30th August, 2016 the EAC held it's 63rd Meeting where the it was stated that the alignment of pipeline for ash slurry, etc. was to be given by the Project Proponent. The Project Proponent has primarily contended in his letter dated 12.11.2016 to the EAC that:-
(i) Ash generated from Power Plant will be transported to the proposed ash dyke through pipeline in High Concentration slurry form.
(ii) The Project Proponent has also contended in this letter that as a precautionary measure ash pond will be lined with HDPE/LDPE at an estimated cost of about Rs.5 Crores.
(b) That it is stated by the Appellant that purpose of the Hydrogeology Report is to assess "the impact of the power plant ...
on ground and surface water regime" and to identify "nearby surface water bodies, estimat[e] changes in the surface water due to discharge of effluents from the proposed project and suggest suitable safeguards in case of adverse impacts." In the site inspection conducted by the Revenue officials on 07.09.2012 there is no mention of the water bodies lying in the land proposed for acquisition. There is absolutely no identification of surface water bodies, estimation of the quantity of effluent, identification of the composition of the effluent, or quantification of potential impacts. Surface water bodies and effluent discharges and consequent impact. on the nearby village i.e Dolesara are not even discussed. In the site inspection dated 07.09.2012 done by the Revenue Authorities the distance of the proposed village land from the village settlement basti has been shown as 400m whereas in reality it is a mere 50m from the village settlement. There is no information concerning the type of wells tested or the depth of such 42 wells. No information is supplied concerning the rate or direction of flour of the groundwater. Therefore, the impact on the village water sources/drinking water has also not been assessed in the Hydrology Report/tests conducted by the Project Proponent. Therefore, the Hydrogeology report has failed to completely achieve the above objectives. Thus in the Hydrogeology Report as it has insufficient data.
(c) That as far as the sending the slurry from the plant to ash dyke in high-density ash slurry form is concerned there has been no EIA explaining as to how the use of high-density ash slurry would cause an improvement as far as water utilisation, reducing Land, reducing capital and operating costs is concerned. Even the volume of water to be used in the high concentration slurry disposal system, the water: ash ratio required for the making this slurry is not mentioned. Regardless, there will be a lot of water, both introduced by the plan and falling naturally onto the ash pit, which cannot be handled without losses to the environment by relying on evaporation, therefore, the impact of the above has not been assessed in the said Hydrology Report.
(d) That the recent EC's mention about achieving a zero discharge of water which the EAC ought to have considered in this case also since the EC was to be amended. Therefore, the EAC failed in ensuring that there is no discharge from the Ash pond or even if it is there the same is not released into the village or it's neighbouring area.
(e) Finally even assuming that a suitable HDPE liner is installed beneath the coal ash landfill, and it functions perfectly for many decades, there is no description in the EIA or otherwise in the Hydrology Report giving a clear description or plan for capturing, handling, and disposing of the coal ash leachate that will be produced after the ash has been disposed.
(f) Therefore, the EC amendment fails to account for the volume of the waste water which could be discharged from the Ash Dyke and during transportation from the 1.5 Km stretch pipeline from plant to the ash Dyke. The Appellant submits that it can be concluded from the study of the EIA and Hydrogeology Report that:-
(i) There is no true zero liquid discharge system proposed; and
(ii) There is no assessment of the impacts of the discharge system that is proposed.43
38. That the proposal of the Project Proponent requesting for amendment of EC for change in location of ash pond was considered by the EAC in it's 50th Meeting held during 28th-29th January, 2016, the minutes of which are as under:
―(2.7.1) The PP made a presentation and inter-alia, provided the following information:
(i) EC Clearance for the above expansion project was accorded on 18.03.2011 for Units # 1 & 2 and 04.11.2011 for Units # 3 & 4.
Subsequently, all four units of 2,400 MW have been synchronized and three units have achieved COD. The requested amendment is for change in ash dyke location.
(ii) Initially, ash dyke for 4x600 MW was proposed to be constructed on an area of 491 Ha, comprising of 250 Ha land near Dolessara village and another 241 Haland near Rodapali village. Details of both patches were included in the Draft and Final EIA report and both the patches of land were part of Public Hearing. In order to optimize the land requirement, JPL requested MOEF to consider only 241 Ha of land near Rodapali village for proposed ash dyke. Accordingly, MOEF while granting EC to the project has approved 241 Ha of land near Rodapali village for locating the ash pond for the expansion project. However, land near Rodapali village could not be acquired for construction of ash dyke, as the same he came part of Gare Pelma Sector-Il coal block.
(iii) Due to delay in acquisition of land for ash dyke, IPL requested MOEF to permit use of existing ash dyke of 4x250 MW for expansion project of 4x600 MW. Same was permitted by MOEF for period of 3 years i.e. till 09.01.2017. Now, JPL proposes to construct the ash dyke near Dolesara village on an area of 239 Ha. This land has already undergone Public Hearing as a part of EIA for 4x 600 MW.
44(2.7.3) After detailed deliberations, the Committee sought the following and deferred the decision on the proposal.
(i) Hydro-geological study of the proposed ash pond area for a minimum one month.
(ii) Although the Public Hearing for land acquisition was held earlier, to make the public aware about the proposed new location of ash pond public notices in the leading local newspaper Gram Panchayats, Website of PP etc. should be published along with the intimation that the public can send its comments if any to the PP and also MoEF&CC within one month after publication of the public notice.‖
39. That the Appellant sent a representation dated 13.07.2016 to the EAC wherein he had taken up the following points :-
"The site for proposed ash dyke falls within coal mine area or Gare Palma Sector I, earlier allocated to M/s Chhattisgarh Mineral Development Corporation and later allocated to M/s Gujrat State Electricity Corporation Ltd.
Gram Sabha of Dolesara unanimously passed resolution on 07.10.2015 against land acquisition for ash dyke as land being agricultural land.
Proposed site of ash dyke is situated in Schedule area within meaning of Constitution of India and 908 families including schedule tribe are likely to be displaced.
So as to information received through RTI Act from Sub Divisional Officer of Gharghoda (the land acquisition authority), the PP has not deposited Processing Fee for the Social Impact Assessment and no initiative has been taken towards preparation of SIA under "Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014".
4540. That the EAC in it's 59n Meeting held on 14th -15th July, 2016 it was stated in the minutes as under:-
"(2.6.4) Further, in connection with the request for change in location of the ash dyke near to the Dolesara village, the EAC took note of the e-mail representation dated 13.07.2016 received by the Ministry (i) alleging location of the proposed ash dyke falling within the coal mine area of Gare Palma Sector-I which presently stands allotted to the Gujarat State Electricity Corporation, and (ii) enclosing a resolution of the Dolesara Gram Sabha dated 07.10.2015 against the land acquisition for ash dyke, etc. Notwithstanding that the ash dyke matter cannot be taken up for consideration in this meeting, the EAC in order to save time for this proposals consideration in the next ilC meeting, requested the Member Secretary to make available to the PP a copy of the representation for a detailed reply to be submitted by the PP to the Ministry well before the next EAC meeting, for action in line with the decision recorded under Agenda item 3.1 of this meeting.
(2.6.5) Also in connection with the change in ash dyke location, the PP's attention was drawn to the Dolesara Gram Panchayat's "no objection" document dt. 22.8.2015 attached to the PP's letter dated 07.07.2016 circulated to the EAC Members. The EAC was not clear why this document dated 22/B/2015 had not been placed before the EAC, when the case was earlier taken up by the HC in its January, 2016 meeting (i.e. five months after the "no objection"). The PP was also asked to clarify the discrepancy in the area for the ash dyke - while the Gram Panchayat mentioned a total of approximately 190.5 ha, the requirement indicated by the PP in the Jan., 2016 meeting of the EAC was 239 ha{as reproduced in para 2.7.1m (iii) above].
...
(2.6.10) In the light of the position given in the preceding paras, the PP was asked to respond to the issues mentioned above in paras 2.6.4, 2.6.5, 2.6.8 and 2.6.9. The proposal was accordingly deferred.46
41. Respondent had submitted that new ash dyke is essential for the operation of thermal power plants and Respondent No. 3‟s Thermal Plant is a pulverized coal based thermal power plant in which ash is generated in two forms i.e., bottom ash and fly ash. The fly ash is evacuated in dry form and stored in ash silos for utilization. The un-utilized fly ash needs to be transported to the ash dyke in slurry form. Similarly, the bottom ash has to be evacuated in slurry form and stored in ash pond/ dyke before same can be utilized after it is dried in the ash pond. The appellant has raised some questions/details on the design of slurry pipeline, water requirement and concentration of slurry etc. As explained by the PP in his additional affidavit as well as during arguments bottom ash part of the fly ash requires transportation in the form of slurry.
High concentration slurry disposal or dry stacking has the advantage of reduced airborne dust, continuous material handling and use of early automation process. Due to high viscosity slurry provides natural slope for spreading without need of mechanical spreading with minimal release of water. Hence, an ash dyke is essential for the operations of Respondent No. 3‟s coal based thermal power plant.
42. At present, bottom ash and unutilized fly ash from the 4x600 MW is being stored in the existing ash dyke of 4x250 MW TPP of the Respondent No.3. As the capacity of the same is being utilized by 4x600 MW, the height raising of the existing ash dyke has been permitted by MOEF&CC to accommodate the ash from all the TPPs i.e., 4x250 MW and 4x600 MW. Moreover, the use of the existing ash dyke for disposal of bottom ash and un-utilized fly ash from the 4x600 MW TPP has only been permitted by MoEF&CC till December, 2022 with an additional stipulation that no further raising of the ash dyke will be permitted. Thus, it is essential to construct new ash dyke for smooth and unhindered operations of both 4x600 MW and 4x250 MW TPPs of the Respondent No.3.
4743. The continuous, unhindered, and optimal operations of 3400 MW Thermal Power Plant are essential. Till date, the Respondent No. 3 has generated revenue of Rs. 47000 crores approximately and has contributed to the overall economy of the State and the country at large. For the benefit of the locals, the Respondent No.3 deploys its resources to improve infrastructure, education, health, sanitation in and around the area of its operations besides undertaking several other CSR initiatives. Thus, the continuation of its operations is equally essential for the welfare of the local public and the economy at large.
44. The said 3400 MW Thermal Power Plant has made huge contributions to the Central Exchequer and State Exchequer amounting to INR 4,184 crore and INR 771 crore respectively till September 2021. The said Thermal Power Plant is the source of supply of electricity to various state distribution companies, including but not limited to those in the States of Tamil Nadu and Kerala.
Furthermore, more than 5000 families are dependent on the continuing operations of the said Thermal Power Plant.
45. Contention of the appellant is also to the fact that the public notice was also not given in terms of the directions of the EAC.
46. The matter as raised by the appellant was placed before the EAC and in the 59th meeting it was discussed as follows:
―18.09.2015. MoEF&CC has issued O.M. dated 02.11.2015 for use of imported coal having 25% ash (max.) for the UMPPs.
(2.5.2) The EAC noted that the said O.M. of the Ministry increasing the restriction of ash content in imported coal to 25% (max.) is only for the UMPPs. Hence, the same is not applicable for the above TPP.
(2.5.3) The PP informed that while the first unit was commissioned in 2010, the last (fourth) unit was commissioned in 2012. Regarding the status of the following condition stipulated in Para 3 (ii) of the EC dt. 17th May, 2007:-48
"The detailed study regarding the impact of the project, if any, on Alphanso mango and marine fisheries as recommended in the report of Dr. B.S. Konkan Krishi Vidyapith shall be undertaken. Based on the same, additional safeguard measures as may be required will be taken -by the proponent with prior approval of the Ministry of Environment & Forests. A copy of the report will be submitted to the Ministry. The cost towards undertaking the study and implementation of safeguard measures, if any, will be borne by the project.‖ The PP informed that the study had been started in 2008, but had not yet been completed.
(2.5.4) In view of above, the EAC stated that that the outcome of, the above study is a pre- requisite tor consideration of the requested amendment of EC. The proposal was accordingly, deferred. The EAC also pointed out that if after the examination of the conclusions of the study, it was decided to consider the PPs request for switching to imported coal with ash content higher than the presently stipulated upto 12%, then it would have to be on the basis of an EIA study, in line with the various O.Ms of the MoEF & CC, and also in line with the earlier recommendation of the EAC (as recorded in Para 3.2 of the minutes of the 43d meeting held on 18th Sep. 2015). 2.6 Expansion of 4x250 MW by addition of 4x600 MW coal Based Thermal Power Plant at Tamnar, in Gharghoda Tehsil, in Raigarh Distt., in Chhattisgarh by M/s Jindal Power Ltd. reg. amended of EC.
(2.6.1) The proposal of PP requesting for amendment of EC for change in location of ash pond was considered earlier by the EAC in its 50th meeting held during 28th-29th January, 2016, the minutes of which are as under:
Quote: ―(2.7.1) The PP made a presentation and inter-alia, provided the following information:
(i) EC Clearance for the above expansion project was accorded on 18.03.2011 for Units # 1 and 2 and 04.11.2011 for units # 3 and 4. Subsequently, all four units have achieved COD. The requested amendment is for change in ash dyke location
(ii) Initially ash dyke for 4*600 MW was proposed to be constructed on an area of 491 Ha, comprising of 250 Ha land near Dolessara village and another 241 Ha land near Rodapali Village. Details of both patches were 49 included in the Draft and Final EIA report and both the patches of land were part of Public Hearing. In order to optimize the land requirement, JPL requested to consider only 241 Ha of land near Rodapali village for proposed ash dyke. Accordingly, MoEF and CC while granting EC lo the project has approved 241 Ha of land near Rodapali village for locating the ash pond for the expansion project. However, land near Rodapali village could not be acquired for construction of ash dyke, as the same became part of Gare Pelma Sector-II coal block.
(iii) Due to delay in acquisition of land for ash dyke, JPL requested MoFF to permit use of existing ash dyke of 4x250 MW for expansion project of 4x600 MW' Same was permitted by MoEF for period of 3 years i.e till 09.01.2017' Now JPL proposes to construct the ash dyke near Dolesara village on an area of 239 Ha. This land has already undergone Public Hearing as a part of EIA for 4x 600 MW.
(iv) Regarding the land acquisition status of proposed new dyke area, in-principal approval for land acquisition has been received from State Industrial Promotion Board.
Compensation of Rs. 5736 crores has already been deposited with Chhattisgarh State Industrial Development Corporation (CSIDC), Raipur, R&R plan for the land has been approved by CSIDC, Raipur vide letter dated 03.08.2015 Section 11 notification for land acquisition completed on 31.08.2015. Issue of section 12 for preliminary survey of land completed on 15.1 1.2015. Issue of section 15 for hearing of objection of section 11 completed on 18.01 .2016.
(2.7.2) While the PP had not intimated about any court case, the committee noted that the Ministry was informed by the representative of Appellant in Appeal No.6/2012, Mehnatkash Majdoor Kisan Ekta Sangthan & Anr Vs UOI & Ors that its appeal against the EC of 2011 is still under consideration of N.G.T. and any amendment in EC should not be considered by EAC' ln this regard the Committee requested the Ministry to study the NGT Orders and clarify whether there is any direct or implied stay by NGT on the project in general and the requested amendment in particular.
50(2.7.3) After detailed deliberations, the committee sought the following and deferred the decision on the proposal.
(i) Hydro-geologist study of the proposed ash pond area for a minimum one month.
(ii) Although the Public Hearing for land acquisition was held earlier, to make the public aware about the proposed new location of ash pond, public notices in the leading local newspapers, Gram Panchayats, Website of PP etc, should be published, along with the intimation that the public can send its comments if any to the PP and also MoEF & CC within one month after public action of the public notice." Unquote.
(2.6.2) In its 59th meeting on 14th-15th July, before taking up consideration of the PP's requests, the EAC with reference to Para 2.7.2 above, inquired about the impact of the NGT Orders. The PP and the Ministry clarified that the said Appeal was disposed off on 09.03.2016, and the orders does not stay the proposed amendments. (2.6.3) For this 59th meeting on 14th -15th July, the PP vide letter dated 07.07.2016 circulated to the EAC Members had requested the Ministry of change in source of coal for Units 3 and 4 from imported to domestic, and for change in location of the ash dyke near to the 3 and 4 from imported to domestic, and for change in location of the ash dyke near to the Dolesara village. Regarding the change in location of ash dyke, it was inter-alia stated that, as recommended by the EAC, hydro-geological study has been completed and report on the same will be submitted to MoEF and EAC shortly. However, in case the hydro-geological report is delayed, kindly consider request for change in source of coal from imported to domestic so that units 3 and 4 are commercially viable to operate. Accordingly, the proposal was placed before the EAC. The EAC pointed out that since the hydro-geological study report was not yet available, the proposal for only change in source of coal for Units 3 and 4 from imported to domestic can be taken up for consideration in this meeting.
(2.6.4) Further, in connection with the request for change in location of the ash dyke near to the Dolesara village, the EAC took note of the email representation dated 13.07.2016 received by hte Ministry (i) alleging location 51 of the proposed ash dyke falling within the coal mine area of Gare Palma Sector-I which presently stands allotted to theGujarat State Electricty Corporation (ii) enclosing a resolution of the Dolesara Gram Sabha dated 07.10.2015 against the land acquisition for ash dyke, etc. Notwithstanding that the ash dyke matter cannot be taken up for consideration in this meeting, the EAC, in order to save time for this proposal's consideration in the next EAC meeting, requested the Member Secretary to make available to the PP a copy of the representation for a detailed reply to be submitted by hte PP to the Ministry well before the next EAC meeting, for action in line with the decision recorded under Agenda item 3.1 of this meeting.
(2.6.5) Also in connection with the change in ash dyke location, the PP's attention was drawn to the Dolesara Gram Panchayat ―no objection‖ document dated 22.08.2015 attached to the PPs letter dated 07.07.2016 circulated to the EAC members. The EAC weas not clear why this document dated 22.08.2015 had not been placed before the EAC, when the case was earlier taken up by the EAC in January, 2016 meeting (i.e five months after the no objection). The PP was also asked toclarify the discrepancy in the area for the ash dyke- while the Gram Panchayat mentioned a total of approximately 190.5 ha, the requirement indicated by the PP in the January, 2016 meeting of the EAC was 239 ha‖.
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47. The appellant moved an application before the Collector for land acquisition proceedings and its validity with construction of ash dyke proposed by the PP and the matter was again considered in EAC in its 63rd meeting where EAC directed about Hydrological study of proposed ash dyke and on representation moved by the PP, the Hydrological study was submitted by the PP. The EAC sought information regarding sampling and analysis of ground water and soil of proposed ash dyke area and leached study by accredited consultant. In compliance thereof, the PP had submitted the detailed report by NABL accredited and MoEF recognised laboratory that is M/s MIN MECR & D Laboratory, where the result of the analysis indicate that the heavy metal 52 consultation in ground water and ash is within limit and under prevailing pH of ash effluent, chances of leaching of heavy metals from ash dyke will be removed. The quarries as raised by the appellant during the proceedings were discussed in the EAC and upon proper and sufficient technical studies to the satisfaction of the EAC, it made its recommendation to the MoEF&CC. The validity and sufficiency of the same have not been question by the MoEF&CC or for that matter anybody accept the appellant has not challenge it and it is contended by the respondent that without any basis with the sole objective of targeting and causing prejudice to the Project Proponent this appeal has been filed. It is further submitted that the ash generated from power plant will be transported to the ash dyke through pipeline through high concentration slurry from and ash water from the ah dyke will be re-circulated back into the system. Hence there will not be any discharge of effluent. There will be no generation of waste water/effluent due to ash disposal. All these aspects have been considered by the EAC and MoEF&CC. It is argued that the findings of the EAC cannot be called into question by the appellant especially since grievances which have been raised by the appellant in this appeal have been addressed and considered by the EAC. R-1, MoEF&CC has submitted that the appraisal of the Environmental clearance by MoEF&CC for setting up of thermal power project by the PP has been done in accordance with the rules of a due appraisal of EC and the matter was placed in the meeting of EAC on different occasions and it was discussed and decided. The information sought by the EAC with regard to sampling and analysis of ground water and soil of the proposed ash dyke area, fly ash collectivisation and leached studies were submitted by the project proponent and the amendment of EC was based on expert opinion which was uploaded on the ministry‟s website.
48. The respondent had submitted that the conception or planning, decision to undertake the project and execution thereof are part of policy making process of Government with which court is ill-equipped to interfere in absence of arbitrators. The reference has been made to 2004 (9) SSC 362 ND Dayal & Anr vs. Union of India & Ors, where it was observed as follows:
5320. This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. The opposing viewpoints of the experts will also have to be given due consideration after full application of mind. When the Government or the concerned authorities after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the Court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the Courts should take only a detached decision based on the pattern of the well-settled principles of administrative law. If any such decision is based on irrelevant consideration or non-consideration of material or is thoroughly arbitrary, then the Court will get in the way. Here the only point to consider is whether the decision-making agency took a well-
informed decision or not. If the answer is 'yes', then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits.
21. In this context, reliance is sought to be placed on the decision of this Court in A.P. Pollution Control Board v. Prof. M. V. Nayudu (Retd.) & Ors., [1999] 2 SCC 718. In that decision, this Court viewed that in scientific matters of complex nature resulting in uncertainty, reference has to be made to a specialised technical/expert body and not merely decide the matter on well known principles of administrative law of court not re-examining the matter if all relevant considerations have been taken note of. In the present case when once a decision had been given by this Court on safety aspects on an earlier occasion and thereafter the matter was again examined by the Government through different agencies and had taken a decision as to the necessity of further test by way of abundant caution should be relevant or not, we do not think, we can sit in judgment over such decision, particularly when there is no difference of opinion among the Experts as to the safety of the dam. It is only by way of abundant caution such studies were suggested by four out of five experts. Thus the usefulness or necessity thereof itself being in doubt, as expressed in various reports, and text books relied on by either side, the principle stated in A.P. Pollution Control Board's case (supra) cannot be 54 applied. In that decision it was noticed that inadequacies of science had led to the precautionary principle leading to the principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the present state of affairs. After detailed consideration of this decision, it is held in Narmada Bachao Andolan's case ―123. It appears to us that the 'precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not know. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or environmental of setting up of an industry is know, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be an ecological disaster. It is when the effect of the project is known that the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the 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.
124. In the present case, we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in a change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in an ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost-effective or leads to ecological or environmental degradation. On the contrary there has been ecological upgradation with the construction of large dams. What is the impact on environment with the construction of a dam is well known in India and, 55 therefore, the decision in A.P. Pollution Control Board case will have no application in the present case."
Aspects Related to Conditional Clearance
22. Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens Welfare Forum v. Union of India, [1996] 5 SCC 647, and in M C Mehta v. Union of India, [2002] 4 SCC 356, it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of' sustainable development.' This is a development strategy that caters the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environmental related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by the strict adherence of sustainable development without which life of coming generations will be in jeopardy.
23. In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right. May be in different context, the right to development is also declared as a component of Article 21 in cases like Samata v. State of Andhra Pradesh, [1997] 8 SCC 191, and in Madhu Kishore v. State of Bihar, [1996] 5 SCC 125.
24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer to simple construction activities. The right to development encompasses much more than economic well being, and includes within its definition the guarantee of fundamental human rights. The 'development' is not related only to the growth of GNP. In the classic work - 'Development As Freedom' the Nobel prize winner Amartya Sen pointed out that 'the issue of development cannot be separated from the conceptual framework of human right'. This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples' well being and realization of their 56 full potential. It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development.
25. Therefore, the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to 'sustainable development' cannot be singled out. Therefore, the concept of 'sustainable development' is to be treated an integral part of 'life' under Article 21. The weighty concepts like inter-generational equity State of Himachal Pradesh v. Ganesh Wood Products, [1995] 6 SCC 363, public trust doctrine M C Mehta v. Kamal Nath, [1997] 1 SCC 388 and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.
26. To ensure sustainable development is one of the goals of Environmental Protection Act, 1986 (for short 'the Act') and this is quiet necessary to guarantee 'right to life' under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object and purpose of the Act as well as the protection of 'life' under Article 21. Acknowledgment of this principle will breath new life into our environmental jurisprudence and constitutional resolve. Sustainable development could be achieved only by strict compliance of the directions under the Act. The object and purpose of the Act - "to provide for the protection and improvement of environment" could only be achieved by ensuring the strict compliance of its directions. The concerned authorities by exercising its powers under the Act will have to ensure the acquiescence of sustainable development. Therefore, the directions or conditions put forward by the Act need to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupled with duty. It is the duty of the State to make sure the fulfillment of conditions or direction under the Act. Without strict compliance, right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The commitment to the 57 conditions thereof is an obligation both under Article 21 and under the Act. The conditions glued to the environmental clearance for the Tehri Dam Project given by the Ministry of Environment vide its Order dated July 19, 1990 has to be viewed from this perspective.
49. On the basis of the report of EAC, it has been argued that the minutes of the meeting are self-explanatory and reveal due application of mind in light of the principles relating to application of mind enunciated in the judgment quoted above. EAC is an expert body and it is amply clear that it has been made aware of all relevant information relating to the project and it has applied his mind to the proposal. Even on settled principles of judicial review, it is clear that the relevant materials have been considered by the Committee and no reliance has been pointed out on any irrelevant material. The specific recommendation given by the Committee do indicate that the Committee was aware of the need for precautionary measures in environmental matters and accordingly, it suggested requirement of further permission on certain counts.
Once an Expert Committee has duly applied its mind to an application for EC, any challenge to its decision has to be based on concrete material which may reveals total absence of mind. Absent that material, due difference must be shown to the decision of experts. The facts of the case do not reveal any deliberate concealment of fact/information from the EAC or supply of any misinformation.
50. The case of Sam Built Well Private Limited vs Deepak Builders [2018 (2) SCC 176] has also been raised with regard to judicial restraint in the following manner given in Paragraph 12:
12. We have already noticed that three expert committees have scrutinized Respondent No.1s tender and found Respondent No.1 to be ineligible. The impugned judgment of the Division Bench of the High Court expressly states that no malafides are involved in the present case. Equally, while setting aside the judgment of the learned Single Judge, the Division Bench does not state that the three expert committees have arrived at a perverse conclusion. To merely set aside the judgment of the learned Single Judge and then 58 jump to the conclusion that Respondent No.1s tender was clearly eligible, would be directly contrary to the judgments aforestated. Not having found malafides or perversity in the technical expert reports, the principle of judicial restraint kicks in, and any appreciation by the Court itself of technical evaluation, best left to technical experts, would be outside its ken. As a result, we find that the learned Single Judge was correct in his reliance on the three expert committee reports. The Division Bench, in setting aside the aforesaid judgment, has clearly gone outside the bounds of judicial review. We, therefore, set aside the judgment of the Division Bench and restore that of the learned Single Judge.
D. Bombay Environmental Action Group vs State of Maharashtra [1990 SCC OnLine Bom 357]: The Hon'ble High Court of Bombay made several observations discouraging judicial interference in technical matters pertaining to the environment.
16. The, petitioners, as public spirited organizations and citizens, have, through their respective Counsel, done their duty by invoking this Courts writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves the question -- Have the authorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Courts interference? We do not think so. On the contrary, considerable though deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities, and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The indepth analysis, the conditions imposed and the precautions taken inspire Courts confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.
5917. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the environmentalists, the State and the Central authorities and expert-bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counterproductive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.
51. On the basis of above pleadings, contentions and the record submitted by the parties, we are of the view that the matter and the points which has been raised by the appellant were duly considered by the EAC in its meeting and after calling the expert advice and the expert report, the recommendation was rightly submitted to the MoEF and CC and MoEF and CC has taken the expert opinion and passed the order impugned. We do not see any justification to intervene in the order impugned. There is application of mind and there is a proper advice and proper technical studies on the basis of which order was issued. The issue as raised is disposed of accordingly.
G. Issue No. V- That the location has been changed, or resolution/NOC passed by the villagers was not correct, the proposed ash dyke falls within coal mine area of another sector and that the project proponent has changed the coordinates of the as dyke.
52. The contention of the appellant is that the project proponent did not conduct any survey and relied on the report of the SDM and Land Acquisition Officer which states that the proposed land is outside the coal block area or EAC failed 60 to consider that the proposed ash dyke falls within coal block area of another sector. The contentions are as follows:
1. Vide Office Memorandum dated 01,11.2011 issued by the Ministry of Coal it has been categorically stated that :-
"(vi) Ministry of coal has requested the Coal bearing States not to take up large scale construction projects on coal bearing areas without ascertaining the view of the Ministry of Coal mainly from the angle of conservation of precious resources.
2. As per the proposal of the project proponent dated 23.09.2015 seeking permission for change of Ash Dyke location from vlllage Rodopalli to Dolesara and requesting for amendment of EC for the same was considered by the EAC in its 50th Meeting held during 28th-29th January, 2016, the minutes of which record that initially, ash dyke for 4x600 MW was proposed to be constructed on an area of 491 Ha, comprising of 250 ha land near Dolessara village and another 241 ha land near Rodapali village. Details of both patches were included in the Draft and Final EIA report and both the patches of land were part of Public Hearing. In order to optimize the land requirement, JPL requested MoEF to consider only 247 ha of land near Rodapali village for proposed ash dyke. Accordingly, MoEF while granting EC to the project has approved 241 ha of land near Rodapali village for locating the ash pond for the expansion project. However, rand near Rodapari village court not be acquired for construction of ash dyke, as the same became part of Gare Pelma Sector-U coal block. It is important to point out that Major part of land in question near Dolesara Village formed part of coal mine area of Gare Palma Sector I, earlier allocated to M/s Chhattisgarh Mineral Development Corporation and later allocated to M/s Gujrat State Electricity Corporation Ltd.
3. That the Project Proponent has changed the site in village Dolesara earlier proposed in EIA which is evident from the difference in co- ordinates of proposed site for ash dyke as provided in Table 1.1 of EIA report and Project Proponent's letter dated 23.09.2015 which is reproduced as follows:-
As per PP's letter dated 23.09.2015and as per Table 1.1 of the EIA Report 61 SN Point Latitude Longitude 1 B1 22º 8',48.12"N 83º 25',39.45"E 2 B2 22º 8',38.31"N 83º 26',4.36"E 3 B3 22º 7',37.15"N 83º 26',21.81"E 4 B4 22º 7',36.77"N 83º 25',54.69"E 5 B5 22º 8',13.65"N 83º 25',17.86"E Table 1.1 Alternate Analysis of Ash Pond Sites Parameters Alt Site I 1 Locations South of Dolesara village 2 Coordinates A-83º 25' 32‖, 22º 8' 14‖ B-83º 26' 51‖, 22º 8' 13‖ C-83º 25' 32‖, 22º 7' 35‖ D-83º 26' 54‖, 22º 7' 37‖
4. That the Project Proponent claimed that land near village Rodopali could not be acquired as same formed part of Gare Pelma Sector I. The Appellant states that it is very strange that it took more than four years to know that Rodopali ash dyke site formed part of Gare Pelma sector I.
5. The Project Proponent has relied on a letter dated 27.08.2015 of SDM and Land Acquisition Officer which states that proposed land is outside of coal mine area. However according to the Appellant it is not clear if any survey was carried out depicting that the area in question is outside the Coal Block area and in case any such survey has been done by the project proponent no survey report has been made available which could clarify that the ash dyke is outside the Coal block area of as to whether Gare Palma Sector I.
6. It is further important to highlight here that several villagers are also opposing the ash dyke and 82 villagers have challenged the land acquisition in High Court of Chhattisgarh at Bilaspur in the WPC No. t79S of 2O76 titled Padumlal Patel Versus State Of Chhattisgarh.
7. That M/s MCL through letter no. MTclffechi20tT-t21653 dated 12.09.2011 & MTCL/Admin12011-121687 dated 03,11.2011 objected grant of environment clearance as ash dyke near village Rodopali forms part of coal block 62 allocated to them and a Reply was sent by the Respondent No.3's letters on 11.10.2011.
53. The version of the State of Chhattisgarh, Respondent No. 2 and 4 are that the appeal may generally contains the allotment of land which is not the domain of the NGT and that with regard to the objections raised by the local villagers, an enquiry has been initiated by the competent authority. R-5, Collector, Raigarh has adopted the reply submitted by Respondent No. 2 and 4. During the argument R-3 submitted that CMPDI is the technical agency in the country, which survey the coal areas and determines the extent of area on topographical sheets and gives its coordinates to the States. Based on those coordinates, revenue authorities delineate the areas on ground in consultation with the Geology and Mining Authorities. Hence, the land is identified on the basis of a survey. R-6, Ministry of Coal has submitted that after the allotment, it is the responsibility of the allottee to obtain necessary statutory clearance/ approval, acquired/purchased land require for the coal mining operation. The role of the nominated authority is limited to facilitate in obtaining these clearance /approvals as and when asked. In its rejoinder filed by the appellant in response to the reply filed by the Respondent No. 1, 3 and 4, it has been submitted that in its meeting (50th) the EAC has clearly stated about Hydro Geological Study of the proposed ash pond with the public hearing which is set to be done in two leading newspaper for which the appellant has certain objections. The matter with regard to the authenticity of the Gram Sabha resolution has been raised by the appellant before the competent authority for which an enquiry was conducted by Tehsildar and the Tehsildar vide report dated 16.02.2016 (Annexure R-3/1) has submitted the report that the Sachiv and Surpunch has verified that it was their signatures and that was done in their presence. The document with regard to another coal block sector in compliances of the order of the Collector and corrigendum issued by the Ministry of Coal, the matter was enquired by the Joint Committee consisting
(i) Tehsildar, (ii) Additional Collector, (iii) Administrative Officer, Mines and (iv) Sub Divisional Officer of the concerned Tehsil and submitted the report and 63 matter reached to its finality. The document (copy) R-3/3 has been filed with the fact that the land proposed for ash dyke in Dolesara village does not fall under the Gare Palma Sector-1 Coal block. It has been clarified that the entire Dolesara village does not form a part of the Gare Palma Sector-1 Coal block but only 38.752 ha of Dolesara village falls under the notified Gare Palma Sector-1 Coal block. The copy of the award and the topo seat marking the ash dyke and the boundary of the said coal block has been submitted by the respondent as R3/R4/R5. With regard to the change in coordinates the matter was informed MoEF & Cc and the EIA Committee had recommended the proposal to MoEF & CC upon satisfaction that there will not be any impact due to this manner change in orientation of the ash dyke location. The fact narrated above has been communicated by the SDM, Revenue to the Collector (Land Acquisition Raigarh) and the Project Proponent in the detailed reply to MoEF & CC, it has been informed that the State Government has granted in principle approval for acquisition of land and initiated the process only after ascertaining the survey numbers of the area proposed to be acquired are outside the coal block. None of the respondents MoEF & CC or Union of India or State of Chhattisgarh or Ministry of Coal have raised any such issues.
Thus, from perusals of records the contention of the appellant that the land for the ash dyke is part of another sector is not tenable. Nothing has been clarified and stated by the appellant that as to what information has not been supplied to the MoEF & CC. Though these matters has been raised and discussed by the Expert Committee while submitting the report. Respondent (MoEF & CC) in its reply has submitted that the grievance of the appellant with regard to coordinates including geological coordinates has been discussed by the EAC and thus the issues which has been raised by way of this appeal has been raised before the EAC and have been fully discussed. Expert Appraisal Committee (EAC) has taken note of all facts in the meetings and has recommended the amendments in the EC to MoEF & CC. Issue of resolution of Gram Shabha of the land acquisition matter is sub-judice before Hon‟ble High 64 Court of Chhattisgarh in Writ Petition No. (c) 1795 of 206 and thus these matters does not require any further discussion.
54. In view of above discussion, we are of the view that the matters which has been raised in this appeal were raised before the authorities which were referred to Expert Committee and the EAC considered the objections and recommended the amendment in the EC vide order impugned and there is no illegality or irregularity in the order impugned. There is no violation of any environmental rules and while passing the order impugned MoEF&CC has gone through the recommendation of EAC and also considered all the objections as raised by the appellant. The appeal has no merit and deserves to be dismissed and thus dismissed.
The Appeal No. 24/2017, M.A. No. 332/2017 & I.A. No. 54/2021 are disposed of accordingly.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 09th March, 2022 Appeal No. 24/2017(CZ) P, PN & K 65