National Green Tribunal
Jeet Singh Kanwar And Another vs Moef And Others on 16 April, 2013
BEFORE THE NATIONAL GREEN TRIBUNAL
(PRINCIPAL BENCH), NEW DELHI
APPEAL No. 10/2011 (T)
16TH APRIL, 2013
CORAM:
1. Hon'ble Shri Justice V.R. Kingaonkar
(Judicial Member)
2. Hon'ble Shri Justice U.D. Salvi
(Judicial Member)
3. Hon'ble Dr. P.C. Mishra
(Expert Member)
4. Hon'ble Shri P.S. Rao
(Expert Member)
5. Hon'ble Shri Bikram Singh Sajwan
(Expert Member)
B E T W E E N:
1. Jeet Singh Kanwar
R/o Village Dhanras,
Post: Chhuri, District-Korba
Chhattisgarh
2. Vinod Kumar Pandey
R/o Village Chhuri,
Post: Chhuri, District- Korba
Chhattisgarh ....Appellants
AND
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1. Union of India
Through the Secretary,
Ministry of Environment & Forests
Paryavaran Bhawan, C.G.O Complex,
Lodhi Road, New Delhi -110003
2. Chhattisgarh Environment Conservation Board
Through the Member Secretary
1, Tilak Nagar, Shiv Mandir Chowk,
Main Road, Avanti Vihar
Raipur, Chhattisgarh
3. M/s Dheeru Powergen Private Limited
Through the Director
#604, 6th Floor, Challa Mal
#11, Sri Thyagaraya Road
T. Nagar, Chennai 600017, Tamil Nadu.
.........Respondents
(Advocates appeared: Mr. Ritwick Dutta and Ms. Srilekha Sridhar,
Advocates for the Appellant; Ms. Neelam Rathore, Advocate for
Respondent No. 1, Ms. Yogmaya Agnihotri, Advocate for Respondent
No. 2 and Mr. Ajit Pudussery, Advocate for Respondent No. 3)
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J U D G M E N T
This is an Appeal filed by two villagers, Jeet Singh Kanwar and Vinod Kumar Pandey, who are inhabitants of Village Dhanras and Chhuri, respectively, situated on the outskirts of Korba Town in the State of Chhattisgarh. They Challenged the order dated 18.01.2010 whereby Respondent No. 1 (MoEF) granted Environmental Clearance (EC) to the proposal for installation and operation of a Power Plant proposed by M/s. Dheeru Powergen Private Limited. The proposal was for installation and operation of 3 x 350 MW coal-based Thermal Power Plant within the boundary limits of Village Dhanras. The Respondent No. 2 is the State Environment Conservation Board (CECB) of Chhattisgarh State.
2. M/s. Dheeru Powergen Private Limited is a Company incorporated under the Company Act, having its main office at Sri Thyagaraya Road, T. Nagar, Chennai (Tamil Nadu). It will be referred to hereinafter as "Project Proponent". The Project Proponent submitted proposal for setting up a coal-based Thermal Power Plant of 3 x 350 MW capacity at Village Dhanras. The proposal was considered by MoEF who in turn provided the ToR for undertaking Environmental Impact Assessment (EIA) study by the Project Proponent. Submission of EIA Report by the Project Proponent to Chhatisgarh Environment Conservation Board (CECB) was followed by Public Consultation process. The public hearing was held on 19.08.2009 in the Tehsil Office premises, Katghora (Dist. Korba) under the Chairmanship of Additional Collector, Korba. At the public hearing, Regional Officer of Respondent No. 2 (CECB) was present. The report of Public Consultation along with other relevant documents were submitted to MoEF which were considered by Expert Appraisal Committee (EAC ) of MoEF. The EAC appraised the same in its 56th meeting dated Page 3 of 25 13.10.2009 and, thereafter, recommended the proposal for grant of EC subject to submission of complete details of Resettlement & Rehabilitation (R&R) Policy and Action Plan for CSR activities to the Regional office of MoEF and also to the CECB. Later on, the EC was granted by MoEF in its order dated 18.01.2010. The EC, so granted by the MoEF, is being challenged by the Appellants on various grounds.
3. According to the Appellants, the mandate of various guidelines in Public Consultation Process set out, vide EIA Notification dated 14.09.2006 issued by the MoEF, have not been complied with and even flouted while granting the EC. The Executive Summary of EIA Report in vernacular language as well as the full EIA Report were not made available thirty (30) days prior to the scheduled date of public hearing. Only the Executive Summary in English language was made available just one week prior to the date of public hearing. So also, at the time of public hearing, each Public Member present there, was not given opportunity to express his/her concerns. The proceedings recorded by the representatives of the CECB were not read over to the members of public, who attended the meeting. The objections raised at the public hearing were neither satisfactorily addressed by the Project Proponent nor the same were duly considered by the MoEF prior to grant of the EC. The public hearing was not held at the site of the proposed project nor in the proximity thereof, but was held at a distance of about 8 K.M. from the project site, in the office of Tehsildar-cum-SDM, Katghora.
4. The Appellants also alleged that the Expert Appraisal Committee (EAC) did not apply its mind to the concerns/objections ventilated during the course of the public hearing as well as to other relevant issues. The EAC simply took note of the fact that R & R measures stated by the Project Proponent were vague and general in nature. Inspite of that the EAC recommended the project with only a brief Page 4 of 25 observation that the Project Proponent should submit detailed R&R Plan. The EAC further failed to consider the cumulative impact of surrounding three power plants, five ash ponds already under operation in the vicinity and the fact that Korba is notoriously known as a critically polluted area as per MoEF Notification. The Environmental Impact on the life of adjacent villagers has also not been considered by the EAC and as such recommendations of the EAC should not have been accepted by the MoEF.
5. The Appellants further allege that the EC was not made available to the members of public since it was not placed in the public domain. The Appellants have come out with a case that the project is located in a critically polluted area and therefore the same ought not to have been granted the EC. On the above premises, the Appellants seek quashing of the EC granted to the aforesaid Thermal Power Project proposed by the Project Proponent (Respondent No. 3).
6. By filing separate pleadings, the Respondents denied truth of the material averments made by the Appellants. The Respondents submitted that hard and soft copies of the Hindi and English versions of the Summary of EIA Report and full EIA report in English were submitted to CECB more than a month prior to the Public Hearing .The same were also forwarded to the concerned Village Panchayats on 08.07.2009. The communications reached the Village Panchayats of the nearby area, particularly that of Dhanras on 09.07.2009. They have come out with a case that all the necessary instructions and guidelines of the EIA Notification dated 14.09.2006 have been duly followed for the purpose of scoping, public consultation and appraisal of the project. The public hearing was attended by about 400/450 villagers. Out of them, 102 villagers signed the attendance register maintained by the Respondent No. 2 (CECB). The representations and doubts expressed by the Page 5 of 25 members of the public were duly considered and clarified during the course of the public hearing held on 19.08.2009 at Tehsil Office, Katghora. It was stated that availability of Hindi version of the Summary of EIA Report to the Public during the Public Hearing is not a requirement as per EIA Notification, 2006. The Respondents submitted that the representatives of the Respondent No. 2 prepared report of the public hearing and also did video recording of the proceedings. They further submitted that the EAC duly applied its mind and thereafter recommended the project for Environmental Clearance to the MoEF. The Respondents further submitted that the cumulative effect of the pollution at the site of the project in question was duly considered and appreciated. The Respondents further submitted that Korba action plan was drawn and is being implemented in order to control and bring down the level of air pollution in Korba area. The CPCB has identified 10 industrial clusters, out of which Korba is one of them and the remedial action for mitigation of pollution level is being taken. With the result, there is improvement in the situation and the pollution level is now going down. The Respondents further submitted that while granting the EC, the MoEF imposed strict and stringent conditions in order to mitigate the possible cumulative effect of the pollutants, viz. the Project Proponent was directed: to use High Efficiency Electro Static Precipitators with outlet emission limited to 50 mg/Nm3, maintain Flu gas exit velocity not less than 25m/sec so as to achieve better dispersion, use of multiflue stack in place of individual stack for efficient dispersion of pollutants, and increase in height of the stack from 220m to 275m for such purpose, to ensure collection of Fly ash in dry form with 100% utilization from 4th year onwards and to dispose of the unutilized fly ash to the ash pond in slurry form and no ash shall be disposed of in low lying area. The Respondents have come out with a case that the proposed project will not substantially add to the pollution level and that appropriate measures will be taken by Page 6 of 25 the Project Proponent to mitigate the same. They attribute malafide motives to the Appellants. Consequently, they urged to dismiss the Appeal.
7. We have heard Learned Counsel for the parties. Mr. Ritwick Dutta, Learned Counsel appearing for the Appellants argued that the draft EIA Report was prepared on the basis of data collected during winter season four years prior to issuance of the ToR and, therefore, it was not a valid basis for preparation of the EIA Report. He further argued that though subsequently the data for the year 2009 was added, yet at the time of public hearing no proper base line data was made available. The members of public were not aware of such substantial change and as such the public hearing was defective. He contended that the CECB and Additional Collector had not ascribed any tangible reason as to why the public hearing was held in the premises of Tehsil Office, Katghora. He also argued that the Project Proponent concealed material information and there was confusion regarding need for conversion of the forest land. He submitted that cumulative environmental impact was not considered before the EC was granted. He argued further that the EC could not have been granted when the moratorium had been imposed by the MoEF. According to Learned Counsel for the Appellants, the impugned order of EC is bad in law if "Precautionary principle" and principle of "Sustainable development" are applied.
8. Per contra, Ms. Yogmaya Agnihotri, learned Counsel appearing for the Respondent No. 2 and Mr. Ajit Pudussery, learned Counsel appearing for the Respondent No. 3 (Project Proponent), supported the impugned order. The Counsel for the Project Proponent (Respondent No. 3) pointed out that Hindi translation of the executive summary of EIA report was furnished in accordance with the EIA Notification dated 14.09.2006. He contended that the Appellants were present at the Page 7 of 25 time of public hearing but did not raise any specific environmental issue and as such they cannot be permitted to invent a new case. He submitted that the map drawn by the Government Agency shows that from epicentre of Korba town, the site of the proposed project is more than 15 km away. He argued that it was not necessary for the MoEF to give detailed reasons when the EC was granted duly imposing various conditions including implementation of R&R Plan. He relied upon certain observations in "B.C. Moryappa Vs. Dr. R. Venkat Subramaniam & Ors." (2008) 14 SCC 306. He argued that the Korba Action Plan is being implemented by the Chhattisgarh Government and therefore pollution level in the area surrounding the site of the proposed project, has been substantially reduced.
9. Ms. Neelam Rathore, Learned Counsel appearing for MoEF (Respondent No.
1) contended that the Appellants have failed to show as to what excessive pollution load is likely to be added to the existing level of pollution. She argued that the EC is granted subject to stringent conditions and as such there will be hardly any addition to the load of pollution in the surrounding area. Ms. Yogmaya Agnihotri, learned Counsel appearing for Respondent No. 2 supported the contentions of learned Counsel appearing for the Project Proponent and the MoEF. She contended that the project site does not come within the critically polluted area for which moratorium has been imposed by the MoEF. She further argued that the site of the proposed project falls beyond 15 km radius of Korba town and as such it is not within the limits of "critically polluted" area. Hence, learned Counsel for the Respondents urged for dismissal of the Appeal.
10. Following points as culled out from the pleadings and contentions of the parties, are required to be answered:
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(i) Whether the public hearing held on 19.08.2009 at Tehsil Office premises, Katghora (Dist. Korba) was illegal due to non-compliance of the guidelines set out vide the EIA Notification dated 14.09.2006 and therefore the impugned order of the MoEF is liable to be struck down?
(ii) Whether the EAC and the MoEF duly considered cumulative effect of the pollution in the area and probable addition of the load of the pollution on account of installation and operation of the proposed project of the Respondent No. 3 (M/s. Dheeru Powergen Private Limited)?
(iii) Whether the project site falls in the "Critically Polluted Area" ?
(iv) Whether this is a fit case in which "Precautionary principle" and "Sustainable development" as envisaged under Section 20 of the National Green Tribunal Act, 2010 are attracted, in the facts and circumstances of the present case, and as such the E.C. deserves to be quashed?
11. Re Point No. (i) : Before touching the merits of the objections raised by the Appellants in the context of public consultation process, it would be useful to briefly consider import of the Environmental Clearance Regulations, 2006. These Regulations were notified on 14th September, 2006. The Regulations provide for prior Environmental Clearance for commissioning of any industrial activity, as indicated in the Schedule appended to the Notification, in keeping with the National Environmental Policy (NEP). All the projects which fall under Category "A" in the Schedule are required to be processed and cleared by the MoEF. Thus, without Environmental Clearance (EC) granted by the MoEF no project falling within the Page 9 of 25 Category "A" of the Schedule can be made functional. For the purpose of such a project, three (3) stages, namely, (i) Scoping, (ii) Public Consultation and (iii) Appraisal are set out for the purpose of processing.
The stage of Scoping refers to the process by which the Expert Appraisal Committee (EAC) determines detailed and comprehensive Terms of Reference (ToR) addressing relevant environmental concerns for preparation of an Environmental Impact Assessment (EIA) Report in respect of the project or activity for which prior Environmental Clearance is sought. The ToR is set out by the Expert Appraisal Committee. It is after the receipt of EIA Report that public consultation process is undertaken in order to address the issues pertaining to environmental impact concerns of the members of public, Resettlement and Rehabilitation (R&R) issue so on and so forth. The Regulations under the Notification would make it clear that the public hearing has to be conducted at the site of the project or in its close proximity. At the time of public hearing written response of concerned persons having a plausible stake in the environmental aspects of the project are also required to be considered and examined. In case of Category "A" project, proposed to be set up in a State, the public hearing has to be conducted by the State Pollution Control Board (in the instant case, CECB). After completion of the public consultation, the Project Proponent is required to address all the material environmental concerns expressed during the consultation process and make appropriate changes in the draft EIA and Environment Management Plan (EMP). The final EIA Report shall thereafter be submitted to the Regulatory Authority for appraisal. The EAC will then conduct detailed scrutiny of the EIA Report and make recommendation to the Regulation Authority (MoEF) after the appraisal process. After considering the recommendations of the EAC, the MoEF will take decision within forty five (45) days. Page 10 of 25 Normally the Regulatory Authority would accept the recommendations of the EAC. However, it is essential to give reasons where the Regulatory Authority disagrees with the recommendations of the EAC. Needless to say, therefore, that the EAC recommendation is of great significance in the process.
12. In the present case, initially Thermal Plant of 2 x 250 MW capacity was proposed in December, 2005. Subsequently, it was revised to 3 x 350 MW capacity. The earlier Scoping entailed issuance of the ToR. The ToR was modified after revision of the project. Though, the Appellants have come out with a case that notice for public hearing was not given and not published as required under the Regulations issued vide EIA Notification dated 14.09.2006 yet the record shows otherwise. Though, it is also the case of the Appellants that Executive Summary of the EIA Report was not made available in vernacular language, yet this kind of objection is uncorroborated by any record as such. It appears from the record that the Project Proponent sent Executive Summary of the EIA Report to the Sarpanch/Secretary of the Villages surrounding the site of the project. The letter dated 12.07.2009 issued by the Authorized Officer of the Project Proponent clearly shows that ten (10) copies of the Hindi translation of Executive Summary had been sent to the CECB, Korba and the same were to be sent to the Sarpanch/Secretary of the Village Panchayat. Besides sending those copies, the Project Proponent separately sent ten (10) such translated copies to the Sarpanch/Secretary of the Villages Dhanras, Katghora, etc. The public hearing was scheduled on 19.08.2009 at the premises of Tehsil Office, Katghora. The villagers were informed through the Village Officer that the public hearing will be conducted under the Chairmanship of Additional Collector, Korba and in the presence of the Departmental Officer (Revenue) and other employees of the Department of Environment. There is no Page 11 of 25 substance in the allegation that notice of public hearing was not given thirty (30) days prior to the scheduled date of hearing. So also, there appears no substance in the allegation that Executive Summary of the EIA Report was not furnished in vernacular language.
13. Perusal of the record purports to show that the public hearing was attended by a large number of members of public. It was for such a reason that the open courtyard of Tehsil office of Katghora was selected as a venue. True, the venue of public hearing was at a distance of about 8 K.M. from the site of the project in question. Still, however, it was a convenient venue for nearby villagers. Moreover, security-wise also it was a convenient venue. It appears from the record that about 400 and odd public members attended the said hearing at the venue. It further appears that out of such a large gathering of public members, 102 public members signed the attendance register. The concerns expressed by the public members were recorded during the course of the public hearing. It appears that 88 members of the public gave response during the course of the public hearing. Some of them raised issues of Resettlement and Rehabilitation. Some others expressed support to the Project Proponent. However, there were no serious environmental issues raised by the people present during Public Hearing.
14. It appears that written representations were given by some of the public members. One of the members, by name, Mr. Rajeshwar Rao expressed health problems saying that the inhabitants are suffering from diseases and therefore the new project should not be installed. So also, one Mr. Ramesh Rathore expressed concern relating to health of the children. One, Mr. Govind Rajput stated that 80 % of the people are suffering from respiratory problems and skin diseases due to pollution as the ash and effluents of NTPC are released in the adjacent "Hasdeo" Page 12 of 25 river. There is no scientific data available, however, to substantiate the argument that due to water or air pollution the people are suffering from health problems like skin diseases in and around the location of thermal power station. It appears that only grievances of general nature were ventilated during the course of public hearing.
15. We have noticed from the record that the Regional Officer of the CECB issued letter dated 8.7.2009 to the Chief Executive Officer, Zila Panchayat, Korba with directions to forward the hard and soft copies of the Executive Summary of EIA report to the concerned villages for the purpose of proper public hearing scheduled on 19.08.2009. Thus, there appears no substance in the allegation that the EIA Report was not made available one month prior to the date of public hearing. We have gone through the written representations filed by the members of public. We are of the opinion that no substantial issue about the environmental impact was agitated in course of the public hearing. There cannot be two opinions about the legal requirement as contemplated under para 2.4 of the Appendix (iv) of the Notification dated 14.09.2006. The purpose of public hearing is to involve members of the public in order to have their full participation before taking final decision. The procedure is intended to render the decision fair and participative and not to thrust such decision on the people who may be unaware of the implications thereof.
16. Careful perusal of the record reveals that the public members were duly made aware of the nature of project and the EIA Report. It appears that the EIA Report was placed in the public domain prior to the scheduled date of public hearing. It is manifested that there was no serious defect in the process of public hearing. In any case, it cannot be said that the Appellants or inhabitants of the nearby villages were prejudiced due to any kind of procedural defect in the process of public consultation Page 13 of 25 (hearing). The public hearing was held in a public place. There was participation of a large number of public members and the process was video-graphed during the course of hearing. The fact that premises of Tehsil Office, Katghora are at a distance of 8 km from the project site is of not much significance and cannot be considered as sufficient ground to vitiate the public hearing unless it was shown that it offered material hindrance in participative decision making mechanism. We are of the opinion that the public hearing was conducted in accordance with due procedure envisaged under the MoEF Notification dated 14.09.2006. Hence, the point no. (i) is answered accordingly.
17. Re Points No. (ii), (iii) and (iv) : To clear the deck, it may be stated, at the outset, that Korba is, admittedly, a critically polluted area. The MoEF by Office Memorandum dated 13.01.2010 imposed a temporary moratorium for a period up till August, 2010 on consideration of projects for Environmental Clearance, which are located in critically polluted areas/ industrial clusters in the country including Korba, identified by Central Pollution Control Board (CPCB) based on Comprehensive Environmental Pollution Index (CEPI). By communication dated 15.03.2010, the list of critically polluted areas was published. In the said list, Korba (Chhattisgarh) is shown at serial no. 5. It is essential to pinpoint the entry no. 5 which is as follows:
"5 Korba (Chhattisgarh) a) Industrial areas and their townships of NTPC, BALCO, CSEB (East) & CSEB(West) CEPI-83.00 (Ac_Ws_Lc) b) Kroba town"
It is important to note that all the areas having CEPI score of 70 and above have been declared as critically polluted areas. It appears that in communication dated 30.03.2012, the MoEF reviewed the position and lifted the moratorium imposed earlier in respect of some industrial areas/clusters in the country. However, Page 14 of 25 the entry number 5 (a & b) remained intact and not covered in the above communication. It is conspicuous that the MoEF decided to continue the moratorium in 18 clusters till the matter is reviewed in the light of updated data to be provided by the CPCB. Thus, the moratorium imposed in respect of 18 industrial clusters was extended till further orders. There is no material on record to show that the moratorium imposed in respect of Korba town and the industrial clusters shown against entry no. 5 of the earlier memorandum dated 15.03.2010, was subsequently lifted by the MoEF. It is imperative, therefore, to examine whether the project site in question falls within the critically polluted area. Besides Korba town, industrial areas and townships of NTPC, BALCO, CSEB (East) and CSEB (West) have also been shown as the critically polluted areas.
18. The CECB set-out certain norms for identifying the "critically polluted area"
in and around Korba Town, as provided in the Action Plan. It appears that as per norms of CECB, area within 15 km radius of Korba town shall be treated as critically polluted. We do not know what is the rationality in arriving at such a conclusion that the areas within 15 km radius of Korba town would be treated as critically polluted areas. As stated before, entry no. 5 of the list of critically polluted areas, as per the MoEF communication, shows that industrial clusters like NTPC, BALCO, etc. fall within the critically polluted area. Topographical account of the project site in question shows that it is located between the Korba town and NTPC ash pond. By order dated 10.12.2012, we directed the CECB (Respondent No. 2) to submit the Action Taken Report (ATR) on the Action Plan prepared for Development of Comprehensive Environmental Pollution Abatement. The Respondents No 1 and 2 were also directed in the order dated 21.2.2013 to file documents pertaining to identity of industrial areas/clusters in the industrial area of Korba town by means of Page 15 of 25 the boundaries or any other means which will specify particular part of the industrial area in the periphery of Korba Town vis-à-vis the proposed project. This Tribunal by order dated 1.03.2013 directed the Sub-Divisional Magistrate, Korba to submit a certified topographical map indicating the site of the proposed project, other adjoining projects, ash ponds, etc. situated within 5 km proximity of the proposed plant. The authenticated map submitted by the Deputy Collector, Korba reveals that the proposed project is at a distance of 15.3 km from Korba town. It is located at a distance of 1.75 km from NTPC ash pond and 0.75 km from Vandana Energy Power House. It appears that the proposed location of the ash pond of the Project Proponent is in between the existing ash pond of NPTC and Korba township. It further appears that the project site is in between the site of Vandana project and the Korba town. We cannot overlook the fact that the ash pond is part and parcel of the project in question. Thus, location of the ash pond of the proposed project is hardly 13.25 km from epicentre of Korba town. It also falls between another project, namely, Vandana Vidyut and Korba town. The ash pond of CSEB and ash pond of NTPC are situated at a short distance from the project site as well as ash pond of the project in question. It is obvious that the proposed location of the ash pond of the project in question is within the critically polluted area even if the radius of 15 Km from epicentre of Korba town is considered as the parameter for identification of critically polluted area. So also, the project site falls within the critically polluted area being in the proximity of cluster of industrial projects like Vandana, Ash Pond of NTPC, etc. There is no merit in the argument that the project in question does not fall within the critically polluted area as demarcated by the Korba action plan dated 12.01.2011 and the MoEF's moratorium dated 13.01.2010. Page 16 of 25
19. We may take note of the fact that the MoEF imposed moratorium on grant of EC in Korba area, particularly the critically polluted area thereof, on 13.01.2010. Just five (5) days after imposition of moratorium i.e. on 18.01.2010 the EC was granted for the project in question. There is clear internal contradiction between official acts of the MoEF in this context. The MoEF imposed moratorium on 13.01.2010 and without definitive ascertainment as to whether the proposed project in question falls within the critically polluted area or not, the EC was granted on 18.01.2010. This haste in granting of the EC is rather surprising.
It is worthwhile to note that the MoEF initially entertained certain doubts during the course of 56th meeting of the EAC, which was held on 13.10.2009. The EAC, therefore, made a query as to whether the project site comes within the identified critically polluted area. The Project Proponent informed that the project site does not come in the zone of notified critically polluted area of Korba as identified by the CPCB. Still, however, the Member Secretary of the Committee suggested that a confirmation in this context will be required from CPCB. What appears from the record is that though such serious doubts were raised yet, within five (5) days of imposition of the moratorium, the impugned order of the EC was issued. This hasty action of the MoEF smacks of non-application of mind.
It is also surprising to note that, when the notification with regard to imposition of moratorium was issued by MoEF on 13.1.2010, the project proponent informed about 2-3 months before that the site does not fall within the critically polluted area. In the same line, when the Action Plan was prepared by CECB in January 2011 fixing 15 km radius from Korba Town as the Critically Polluted Area, how the CECB informed the MoEF during January 2010 itself that the Project site Page 17 of 25 is located beyond the 15 km radius of Korba Town and, therefore, does not fall in the critically polluted area ?
20. Ms. Neelam Rathore, Learned Counsel appearing for MoEF invited our attention to the Korba Action Plan. It is brought to our notice that the air pollution level has come down after certain measures are taken by the Respondent No. 2 i.e. Chhattisgarh Environment Conservation Board. Comparative statement for the year 2010 reveals reduction of pollution to a small extent. One cannot be oblivious of the fact that the moratorium imposed by the MoEF is not yet withdrawn. Needless to say, still Korba town and the industrial clusters referred to above, are well identified as critically polluted areas. Moreover, the pollution level is not substantially reduced in spite of the steps taken by the Respondents No. 1 & 2 to control the same.
21. Now, it is worthy to be noted that the total land required for the project was shown as 702.60 acres. That includes proposed diversion of 323.325 acres of forest land. The forest land is not yet made available to the Project Proponent. The Environmental Clearance (EC) has been granted subject to grant of Forest Clearance (FC). The Project Proponent has not placed anything on record to show that process for grant of Forest Clearance was initiated. The EAC Report shows that the project was recommended for EC on the basis of assumption that no diversion of forest land is involved. This assumption was incorrect and as such subsequent corrigendum was required to be issued by the EAC as per the minutes of its meeting dated 10.11.2009. The EAC in the 56th meeting dated 13.10.2009 considered the issues raised during the public hearing, viz. impact on environment due to operation of proposed project, location of ash pond; capacity for utilization of ash; development of green belt to arrest air pollution; measures for giving compensation to 22 families (homestead losers) and 212 land losers; water required from other sources having Page 18 of 25 not been mentioned in EIA; impact due to land acquisition; acquisition of agriculture land; impact on ground water; providing civic amenities to villagers by project proponent; providing free tree/fruit saplings for cultivation; impact on agriculture land due to proposed ash pond etc. Though, the EAC was cognizant of the above issues which are stated in the minutes yet it is not at all clear as to how the EAC was satisfied with responses of the Project Proponent and the cumulative effect of the issues raised in the course of public hearing. The issues are simply stated in the discussion part of the minutes of the meeting dated 13.10.2009. The EAC observed that Resettlement and Rehabilitation (R&R) details are very general in nature and no specific details such as particulars of homestead losers and compensation to be paid or alternative sources of livelihood, etc. have been spelt out. The Committee expressed feeling that in the absence of very good R&R Action Plan with commitment of implementation, the land losers, particularly homestead losers, will be heavily burdened which is totally avoidable. In spite of the absence of any satisfactory R&R Plan, the EAC recommended the proposal, subject to submission of comments/recommendation of CECB on a detailed R and R Plan and also action plan for CSR activities.
22. On consideration of the tenor of the communication no. J13011/72/2006- IA.II(T) dated 18.01.2010 (impugned order), requirement for FC for conversion of the forest land was not the issue for discussion and consideration by EAC. It is relevant to reproduce paragraph 4 of the communication dated 18.01.2010. It reads as follows:
"4. Based on the information submitted by you, as at para 2 above and others, the Ministry of Environment & Forests hereby accords environment clearance Page 19 of 25 to the above project under the provisions of EIA Notification dated 14.09.2006, subject to the compliance of the following conditions. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx."
We are of the opinion, therefore, that the Conditions including condition to obtain FC are stated in a routine course. Indeed, it was necessary for the EAC /MoEF to verify the R&R Plan, action plan for CSR activities, the responses of the Project Proponent to the issues raised in the public hearing and to examine the relevant materials before granting the EC. We find that such exercise is skirted by the MoEF.
23. We may now switch over to legal aspects of the matter. In "T.N. Godavarman Thirumulpad Vs. Union of India & Ors" (2006) 1 SCC 1, it is observed :
"Undoubtedly, in any nation development is also necessary but it has to be consistent with the protection of the environment and not at the cost of degradation of the environment. Any programme, policy or vision for overall development has to evolve a systemic approach so as to balance economic development and environmental protection. Both have to go hand in hand. In the ultimate analysis, economic development at the cost of degradation of the environment and depletion of forest cover would not be long lasting. Such development would be counter productive. Therefore, there is an absolute need to take all precautionary measures when forest lands are sought to be directed for non-forest use."
24. The precautionary principle requires the authority to examine probability of environmental degradation that may occur and result into damage. In the present case, it was utmost necessary to thoroughly examine the viability of the project in question, particularly, when there were identical coal- based power projects in the proximity of the area and the area is declared as critically polluted one. There Page 20 of 25 cannot be any doubt about the fact that installation of such thermal power plant, based on consumption of coal as fuel, would cause additional pollution load in the surrounding area. The suggested safety measure of increasing height of the chimney may not prove to be sufficient to disperse such excessive pollutants. Such contingency called for caution before giving green signal to the Project which involved "ifs & buts". In our opinion, therefore, by applying precautionary principle, the EC should not have been granted by the MoEF. As stated before, the economic interest shall be put in the backseat when it is found that degradation of the environment would be long lasting and excessive. It need not be reiterated that the MoEF was aware of such environmental degradation and that is why the moratorium imposed earlier is still continuing. Ordinarily, nobody will take further risk of adding pollution load in the area which is already identified as critically polluted one. It appears that the MoEF did not seriously examine the relevant aspects prior to granting the EC in question.
25. In M.C. Mehta vs. Union of India (2004) 12 SCC 118 the Apex Court held that in case of doubt, protection of environment would take precedence over economic interest. The concept of "Sustainable Development" is an exercise of balancing the industrial activity with environment protection. The balancing act requires proper evaluation of both the aspects, namely, degree of environmental degradation which may occur due to the industrial activity and degree of the economic growth to be achieved. It is well settled that the person who wants to change the status quo has to discharge burden of proof to establish that the proposed development is of sustainable nature. We are of the opinion that the Project Proponent failed to discharge such burden of proof.
26. The learned counsel for the Appellants in this regard relied upon the following Judgments:
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MANU/SC/0670/1996: 1996 5 SCC 647 at para 10 to 20 Vellore Citizen's Welfare Forum vs. Union of India MANU/SC/0188/1997 : 1997 2 SCC 87 at para 49, 52 S. Jagannath vs. Union of India MANU/SC/8159/2006 : 2006 5 SCC 371 at para 66, 77, and 94 Karnataka Industrial Areas Development Board vs. C. Kenchappa and Ors, Wherein the following principles were laid down:
Environmental measures to be taken by the Government and statutory bodies must anticipate, prevent any attack which causes environmental degradation; Where there are threats of serious irreversible damage, lack of scientific certainty cannot be used as a reason for postponing measures to prevent such degradation;
The onus is on the developer to show that his actions are environmentally benign.
Having considered the facts and legal position as above, we are of the opinion that the impugned EC is granted without appropriate balancing act to see whether the project is proper and viable on the touchstone of principles of "Sustainable Development" and "Precaution" needed to avoid future disaster or irreversible environmental degradation.
27. So also, in "Vellore Citizens Welfare Forum vs. Union of India and Ors." (1996) 5 SCC 647 - it is observed:
10. "xxxxxxxxxxxxxxxxx During the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems.
"Sustainable Development" as defined by the Brundtland Report means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalized by the international law jurists.
11. Some of the salient principles of "Sustainable Development", as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Page 22 of 25 Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that "The Precautionary Principle" and "The Polluter Pays Principle" are essential features of "Sustainable Development". The "Precautionary Principle" - in the context of the municipal law - means:
(i) Environmental measures - by the State Government and the statutory authorities
- must anticipate, prevent and attack the causes of environmental degradation.
(ii)Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign."
28. We have minutely perused the relevant record. It appears that the EAC did not conduct "detailed scrutiny" nor gave adequate reasons as to how the objections raised by the members of public were addressed by the Project Proponent and that the stand of the Project Proponent was found acceptable. On this ground also, we are inclined to hold that the impugned order of EC is arbitrarily issued and therefore it is unsustainable.
29. The material points and aspects which are derivatives of the foregoing discussion may be summarized as follows:
(i) Before issuance of the TOR (Terms of Reference) on 25.04.2008, the base line data was provided only for winter season of the year 2005-
2006, though, the final EIA Report was submitted in August, 2009 which included the latest data for the summer of 2009.
(ii) Admittedly, Korba town and surrounding areas are critically polluted standing at 5th position in the list as per the MoEF notification.
(iii) Though, the MoEF imposed moratorium on grant of EC in Korba and surrounding area, on 13.01.2010, yet granted impugned EC just after Page 23 of 25 five (5) days thereof i.e. on 18.01.2010. This is a material internal contradiction between the two actions i.e. to impose the moratorium on one hand and to breach the same on the other hand.
(iv) The EAC overlooked certain material issues which were highlighted during the public hearing.
(v) The MoEF used vague and rather slippery terms viz. "minimal damage"
and implementation of R&R Plan, etc. in the impugned order of EC, which was granted before submission of R and R plan and CSR action plan.
(vi) The radial distance of 15 km from epicentre of Korba town is considered for the purpose of environmental impact. However, there is no particular yardstick shown as to how only 15 km is the area that may be identified as critically polluted one. The focus only on Korba township is improper and impact on the surrounding area of the proposed project ought to have been duly considered. The ash ponds of other projects like NTPC, Vandana, etc. are either at same distance or little away from the project site, even if radius of 15 km is deemed as proper yardstick for determination of critically polluted area and that the project in question is located in between such ash ponds. The ash ponds of other projects as well as the project in question are part and parcel of the same projects and cannot be segregated from the Thermal Power Plants.
(vii) Though, the EAC observed that the R&R details were general in nature yet even in the absence of such detailed R&R Plan the EC was Page 24 of 25 recommended to MoEF and MoEF granted EC. R&R cannot be prescribed as post clearance condition.
(viii) The MoEF failed to anticipate probable ill impact of the project, in conjunction with the pollution level caused due to the other projects already existing in the surrounding area.
30. Taking a stock of the forgoing discussion, we have arrived at the conclusion that the impugned order of the MoEF, granting EC to set up the coal-based Thermal Power Plant as sought by the Project Proponent is illegal and liable to be quashed. Needless to say, the Appeal succeeds and must be allowed.
In the result, we allow the Appeal and quash the impugned order of EC dated 18.01.2010. The parties to bear their own costs.
The project proponent is, however, at liberty to apply afresh and pursue his request for grant of EC in accordance with law after lifting the moratorium, if it is found that there is a substantial reduction in pollution below the prescribed levels. That, such application, if so filed, may be considered on its own merits.
.........................................., JM (V. R. Kingaonkar) .........................................., JM (U. D. Salvi) ........................................., EM (Dr. P.C. Mishra) ........................................., EM (P.S. Rao) ........................................., EM (B.S. Sajwan) Page 25 of 25