National Green Tribunal
Hiteshbhai Uttambhai Dhodi vs Ministry Of Environment Forest And ... on 18 October, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
**********
Appeal No.41/2020 (WZ)
IN THE MATTER OF:
1. Hiteshbhai Uttambhai Dhodi
S/o Uttambhai Gajiyabhai Dhodi,
R/o:-Karajgam-Fansa
Ta.:Umargam, Dist.:Valsad
Gujarat- 396 155.
2. Surajkumar Uttambhai Bhoir
S/o Uttambhai ChimanbhaiBhoir
R/o: 21-Agriwad, Karajgam-Fansa,
Ta.:Umargam, Valsad,
Gujarat- 396 155.
3. Jayeshbhai Limjibhai Warli
S/o Limjibhai Mariyabhai Warli
R/o:Agriwad, Karajgam-Fansa
Ta.:Umargam, Dist.:Valsad
Gujarat- 396 155.
4. Parshottambhai Ishwarbhai Warli
S/o Ishwarbhai Surjibhai Warli
R/o Kushni Faliya, Karajgam-Fansa
Ta.:Umargam, Dist. Valsad
Gujarat- 396 155.
5. Jigneshbhai Kantibhai Warli
S/o Kantibhai Warli
R/o 557, Agriwad, Karajgam-Fansa
Ta.: Umargam, Dist. Valsad
Gujarat- 396 155.
6. Dilipbhai Bhaylabhai Dhodi
S/o Bhaylabhai Budhiyabhai Dhodi
R/o Talav Faliyu, Karajgam-Fansa
Ta.:Umargam, Dist.:Valsad,
Gujarat- 396 155.
7. Rajubhai Chaganbhai Warli
S/o Chaganbhai Dhakhlabhai Warli
R/o 556, Talav Faliya Karajgam-Fansa
Ta.: Umargam, Dist.: Valsad
Gujarat- 396 155.
Appeal No.41/2020 (WZ) Page 1 of 32
8. Divyeshbhai Ishwarbhai Dhodi
S/o Ihwarbhai Ramabhai Dhodi
R/o 870, RaiFaliya, Karajgam-Fansa
Ta.:Umargam, Dist.:Valsad
Gujarat- 396 155.
9. Kalpeshbhai Natubhai Warli
S/o Natubhai Dhakulbhai Warli
R/o Talav Faliyu, Karajgam-Fansa
Ta.: Umargam, Dist.:Valsad
Gujarat- 396 155.
10. Manali Manilal Bhoir
S/o Manila! Devendrabhai Bhoir
R/o Agriwad, Karajgam-Fansa
Ta.:Umargam, Dist.:Valsad,
Gujarat- 396 155.
11. Dalpatbhai Chotubhai Dhodi
S/o Chotubhai Makanbhai Dhodi
R/o Rai Faliya, Karajgam-Fansa
Ta.:Umargam, Dist.:Valsad,
Gujarat- 396 155.
.....Appellant(s)
Versus
1. Ministry of Environment, Forest and Climate Change
Through its Secretary
Indira Paryavaran Bhavan, Jor Bagh Road,
New Delhi-110 003.
2. State of Gujarat
Through the Additional Chief Secretary
Department of Environment and Forest
Block 14/8 New Sachivalaya,
Gandhinagar, Gujarat-382 010.
3. Gujarat Pollution Control Board
Through its Member Secretary
Paryavaran Bhavan, Sector 10-A,
Gandhinagar- 382 010 (Gujarat)
4. Madura Carbon (India) Ltd.
Through its Managing Director
2, Jankicentre, Veera Desai Road
Andheri (W), Mumbai-400 053 (Maharashtra)
.....Respondent(s)
Counsel for Appellant(s):
Ms. Shilpa Chohan, Advocate
Appeal No.41/2020 (WZ) Page 2 of 32
Counsel for Respondent(s):
Mr. D.M. Gupte, Advocate for R-1/MoEF&CC
Mr. Maulik Nanavati, Advocate along-with Ms. Manvi Damle,
Advocate for R-2/State of Gujarat & R-3/GPCB
Mr. Saurabh Kulkarni, Advocate for R-4/PP
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh(Judicial Member)
Hon'ble Dr. Vijay Kulkarni(Expert Member)
Reserved on : 31.08.2023
Pronounced on : 18.10.2023
JUDGMENT
1. This appeal has been preferred seeking quashing of EC dated 18.05.2020 grated by the respondent No.1/MoEF&CC to respondent No.4/Madura Carbon (India) Ltd. for setting up Carbon Black manufacturing unit of capacity 2,30,000 TPA & Power Generation unit of 45 MW located at Village: Fansa (Karajgam), Taluka: Umbergaon, District:
Valsad (Gujarat).
2. In brief, the facts of this appeal are that the appellants are residents of Village: Karajgam-Fansa, whose lands adjoin the site where Carbon Black manufacturing unit of respondent No.4/Madura Carbon (India) Ltd.
would be established, who were going to be adversely affected by setting up of the said unit as they apprehend that their agricultural produce and productivity of their lands would be adversely impacted on account of the pollution caused by the unit operating within GIDC Sarigam, an industrial estate situated in east side of the said Village. The unit in question of respondent No.4/Madura Carbon (India) Ltd. was proposed to be set up on agricultural land, which is a scheduled area (tribal area). The appellants had also participated in the public hearing conducted by the respondent No.3/GPCB. The project in question is covered under Schedule 5 (e) of the EIA Notification- 2006, which deals with the petroleum products and Appeal No.41/2020 (WZ) Page 3 of 32 petrochemical based processing such as production of carbon black and electrode grade graphite, which falls in Category- A & 1(d), which related to Captive Power Generation, falls under Category B as per the said Notification. The respondent No.4/Madura Carbon (India) Ltd. had applied for prior environment clearance under Environment Impact Assessment (EIA) Notification, 2006 in Form 2 (appears to be wrongly mentioned as it should be Form 1) along-with the Pre-feasibility report for the project, which shows that the layout plan for the manufacturing unit was to be located at Survey Nos.3705 to 3710, 3712, 3713, 3715, 3717, 3718, 3720, 3722 to 3724, 3726, 3727, 3730, 3733 to 3740, 3742, 3743, 4049, 4084 to 4090, 4095, 4105, 4107, 4108, 4110, 4112, 4133 to 4135, 4301, 4317, 5134, 5220 to 5222, 5226, 5227, 5236, 5264, Village: Karanj, Taluka:
Umbergaon, Dist.: Valsad, Gujarat. The total plot area for the proposed project was to be 2,35,239 m2, relevant extract of the Pre-feasibility report is annexed as Annexure A/2.
3. It is further submitted in this appeal that respondent No.1/MoEF&CC raised EDS (Essential Documents Sought) on the application for prior environment clearance submitted by R-4/Madura Carbon (India) Ltd. as regards the details of land available for the project and its ownership, permission for conversion of land for the proposed activity i.e. industrial activity and details of wildlife areas/CRZ area within 10 kms. radius of the project site. The respondent No.4 had submitted its reply along-with the documents. As regards the land, it is stated that the carbon project was to come up on 2,35,239 sq. m. area of land i.e. 58.13 acres of land and the MoU for land ownership with the land owners was submitted for the land conversion, which was under process. Appeal No.41/2020 (WZ) Page 4 of 32
4. It is further submitted in this appeal that the respondent No.1/MoEF&CC again raised queries from respondent No.4/Madura Carbon (India) Ltd. and directed to submit the proposal, once land conversion was obtained for industrial activity. The respondent No.4 again submitted its reply disclosing EDS generated on 29.09.2018 outlining the survey numbers over which the carbon project was to come up. It reflected that the land area was reduced to 94,499 M2 i.e. 23.3 acres. Further, it could also be seen that Survey Nos.3719, 3725, 4318, which were now sought to be included for carbon project, were not part of the application for prior environment clearance submitted earlier nor that of the reply submitted by respondent No.4 to respondent No.1/MoEF&CC dated 19.09.2018. The respondent No.4 vide its reply dated 05.03.2019 submitted that it had sought permission for use of land for industrial purpose under Section 63AA of Gujarat Tenancy and Agricultural Lands Act, 1948. The true copy of the Reply to EDS dated 05.03.2019 is annexed as Annexure A/4, in which it does not contain Annexure-'1', which was supposed to be the permission sought under Section 63AA of the said Act for the use of land for industrial purpose.
5. It is further submitted in this appeal that the respondent No.4 again submitted Form-1 for obtaining ToR for the carbon project, in which the lands, over which the carbon project was to come up, were Survey Nos.3705, 3708, 3719, 3725, 3738, 4108, 4110 & 4318, Village: Karanj, Taluka: Umbergaon, Dist.: Valsad, Gujarat. A revised pre-feasibility report was prepared, where-in these survey numbers were shown and the land was reduced from 2,35,239 sq. mtrs. i.e. 58.13 acres to 94,499 sq. mtrs.
i.e. 23.3 acres, though the capacity of the carbon project remained the Appeal No.41/2020 (WZ) Page 5 of 32 same. The true copy of the form-1 is annexed as Annexure A/5 and the revised prefeasibility report is annexed as Annexure A/6.
6. It is further submitted in this appeal that as per the Constitutional Provision under Article 244 (1) of the Constitution of India, the 'Scheduled Areas' are defined as 'such areas as the President may by order declare to be Scheduled Areas'- as per paragraph 6(1) of the Fifth Schedule of the Constitution of India. The scheduled areas are predominately tribal areas, which are notified by the State under order of President, after consultation with the Governor of that State. At present, Scheduled Areas have been declared in the State of Gujarat along-with other States, which are mentioned in para no.10 of this appeal. As per the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977 (Constitution Order, 109) dated 31.12.1977, the areas of Bansda, Dharampur, Chikhali, Pardi and Umbergaon Talukas in Valsad District are notified as scheduled areas in Gujarat, which are constitutionally protected under the provisions of 5th Schedule. Further, it is submitted that the provision of Panchayat Extension to Scheduled Areas Act (PESA) applies to Village Karanj. In order to implement the provisions of 5th schedule and PESA in the scheduled areas, State of Gujarat amended various state Acts to bring it in line with the constitutional provisions and enactments. The State of Gujarat amended the Gujarat Land Revenue Code, 1879 to incorporate the provisions such as section 73AA with respect to land belonging to scheduled tribe there-by preventing tribal land alienation. The State of Gujarat also amended the Gujarat Tenancy and Agricultural Lands Act, 1948 to incorporate provision in Section 63AA (Sale of land for bonafide industrial purpose permitted in certain cases) where the sale of land Appeal No.41/2020 (WZ) Page 6 of 32 owned by a person belonging to scheduled tribe was subject to provisions of Section 73AA of Gujarat Land Revenue Code, 1879.
7. It is further submitted in this appeal that a perusal of the Pre- feasibility report for the project, Form 2, reply to EDS, Draft EIA report and final EIA report would highlight that the project proponent/R-4 had no-where mentioned the project area being tribal/5th schedule area, there- by by-passing the constitutional safeguards as provided under fifth schedule & provisions of Gujarat Land Revenue Code, 1879 and the Gujarat Tenancy and Agricultural Lands Act, 1948. Even at the public hearing held for this project, the issue of applicability of PESA to the land in question was raised and in reply, there was outright denial by R- 4/Madura Carbon (India) Ltd. of the land being tribal land, over which Section 73AA would apply. It is further submitted that respondent No.1/MoEF&CC approved the standard Terms of Reference (ToR) for conducting environment impact assessment study for petrochemical based processing (processes other than cracking & reformation and not covered under the complexes) projects vide its order dated 06.04.2019. From the perusal of this order, it is evident that the Terms of Reference (ToR) were not approved at the meeting of Expert Appraisal Committee (EAC) for industrial projects-2 as none is mentioned in it. The true copy of the same is annexed as Annexure A/7.
8. It is further submitted in this appeal that respondent No.4/Madura Carbon (India) Ltd. appointed Precitech Laboratories Pvt. Ltd. as EIA consultant for conducting EIA study as per the approved ToR, which conducted the draft EIA study for the carbon project to be set up on above- mentioned survey numbers in Village: Karanj. The purpose of this study is to identify and evaluate the potential impacts (beneficial and adverse) of Appeal No.41/2020 (WZ) Page 7 of 32 setting up the carbon project on the environment. It is further mentioned that the raw materials for the proposed range of products as shown in pre- feasibility & Draft EIA report and in revised pre-feasibility report are of the same quantity. But in the Final EIA report, there is variation in the quantities without any explanation. Even the form-2 submitted by R- 4/Madura Carbon (India) Ltd. under the heading at S. No. 13.1-Raw Material/fuel profile, the description of the quantities is different.
9. It is further submitted in this appeal that the layout of the carbon project is shown in the draft EIA report as an area, which is contiguous having different components of the plant, which includes a carbon black manufacturing unit and captive power generation plant. The details or storage of materials show that there is going to be a tank for storage of raw materials for the specified quantities and the same is exhibited in the layout plan, though the exact description of the components of the layout as shown, is not clear neither in the draft EIA nor in the final EIA report. But it underlines that the land requirement for the project is contiguous for operational purposes. It is further submitted that if the survey numbers over which the carbon project is now proposed, for which impugned EC has been given, is plotted on revenue map, it would make it evident that the land is not contiguous, rather it would not be possible to set up the carbon project of the proposed capacity over the land in question. Looking to the fact that the contiguous area would be required for operational purposes as per the proposed layout, this aspect has not been considered by the respondent No.1/MoEF&CC while granting EC to respondent No.4 and that the respondent No.1 has misled the respondent No.4 by showing incorrect layout plan, which is not relatable to the survey numbers in question.
Appeal No.41/2020 (WZ) Page 8 of 32
10. It is further submitted in this appeal that in the draft EIA report, there is no mention of the source/linkages to the raw material except mentioning that it would source from local market or imported. Because of this vague description of the raw material, there is no raw material analysis as regards anticipated emissions and correspondingly, there is no mitigation strategy for the same. This assumes importance in the background of the fact that emissions causing air pollution is the biggest fall out of operation of carbon black manufacturing units. The emission of thin black particles, which form a layer over the land and crops would render them unproductive. The carbon black project proposes to manufacture carbon black by thermal cracking or pyrolysis of CBFS (Carbon Black Feed Stock). In the co-generation system, the tail gas will be used as fuel in the waste heat boiler for generating steam and remaining steam would be used for production of electrical power & dryers.
11. It is further submitted in this appeal that the public hearing was organised on 19.07.2019 at 11.30 AM for the carbon project. An advertisement in English was published in Gujarati Daily- "Sandesh" and English daily- "Times of India" on 19.06.2019. There was a lot of opposition from the residents of the Village- Karani, on whose agricultural lands, the carbon project was proposed to be set up. Some of the issues raised at the public hearing were as follows:-
"
Air pollution from proposed carbon black manufacturing plant especially given the location of the proposed unit as there are exist hills at a distance of 400 m and the existence of these hills has not been factored in the air modelling studies as this would affect dispersion of emissions from the unit. The emissions from the carbon black unit would be trapped thereby causing air pollution in the village that adjoins it.
The trees of surrounding area, land, farming land & vegetation of land will be affected by PM, SO2 and NO2 emission from the project. The land of the proposed carbon plant is on agricultural land and Appeal No.41/2020 (WZ) Page 9 of 32 agricultural land of the residents of karanj adjoins the proposed unit. There are orchards in the surrounding area which is the sole source of livelihood for the tribal residents of the village Karajgam. What will be the capacity of Boilers in Ton per hours and what pollutants will emit from it? What will be the potential of it? Which machineries will be required for its prevention?
Management of VOC, odour and noise emanating from the carbon black unit.
As Air, Water noise and land is going to be polluted due to the manufacturing of Carbon Black, the residents are against this project as other examples of carbon black units in Gujarat has shown that there is excessive pollution on account of the operation of the plant.
Adjoining reserve forests will be destroyed. Due to removal of forest, chances of rising heat levels in hilly areas will be increased due to removal of forests.
Air quality will get polluted due to the establishment of R-4/Madura Carbon India Ltd. The residential area is just 200m away tram the proposed project. The godown are supposed to be made for storing the waste generation. So, due to these arrangements, the tribal community of the surrounding area are going to be affected. The fertile land is also there within this area.
With 200 m of the proposed carbon plant is Karajgam primary school, Karajgam primary school (Aagriwad), Anganwadis (Brahmin FaIlya, Krishaniwad, Aagriwad, Rayfalia), Karajgam Government health centre, Karajgam Seva Sahkari Mandal, Government grain stores and all of them will be affected by the air and noise pollution. High water requirement & source of fresh water in terms of competitive users and regarding rainwater harvesting. Wastewater characteristics, LIP scheme & mode of Disposal.
Connecting road to the land of R-4 passes through village which is i0-12 ft. in wide & related traffic issues and the land of the company will block the access of many villagers to their agricultural and which passes over the land of R-4/Madura carbon India Ltd. thereby affecting the easementary rights of the villagers. No description of raw material linkages of Feed Stock (Carbon Feed Stock) from local suppliers as it would determine the emissi=on levels at the time of operation.
The land is not Non- agricultural land. It is agriculture land. The land is 73-AA and covered under PESA act and no per Gram Sabha has been taken for the project. The land of the Tribals has been taken for the unit which will result in the tribal families becoming landless. The operation of the carbon black unit would cause noise levels that is going to affect the health of the residents of the surrounding villages and especially Karanj.
The generated Carbon black is carcinogenic that affect lungs of human due to its inhalation and also causes respiratory problems. Appeal No.41/2020 (WZ) Page 10 of 32 The land of R-4 for the proposed carbon black project is Gauchar land of the village.
R-4 has forged the documents to seek NA permission and as such to NA permission should be cancelled.
Manufacturing of carbon black would use Pyrolysis process and use or this process is restricted in the state and as such there is no approval on record from GPCB."
12. It is further submitted that irrigation pipeline from the Damanganga Distributary traverses through the land over which the proposed carbon black project will come up and the same has not been shown in the Draft EIA or final EIA report. The Google image of the area also shows that the land is surrounded by reserved forests and the village road goes through the village for approaching the land where the proposed carbon black project is to come up. It is further submitted that the respondent No.4/Madura Carbon India Ltd. misled the Gram Panchayat by stating that a textile unit was to be set up at the site in question. But after the public hearing was conducted, it was discovered by them that the present unit of respondent No.4 was going to come up at the said site and soon thereafter Gram Panchayat passed a resolution on 28.08.2019 rescinding the earlier resolution, which was in support of the respondent No.4/Madura Carbon India Ltd.
13. It is further submitted in this appeal that the emissions from carbon black manufacturing unit would include particulate matter, carbon monoxide (CO), organics, nitrogen oxides, sulphur compounds, polycyclic organic matter (POM), and trace elements which are carcinogenic. The primary hazardous air pollutant emitted from carbon black manufacturing unit is benzene. The black carbon manufacturing would generate Volatile Organic Compounds (VOCs), which leads to Irritation in skin and eye. It affects sensitization, central nervous system, carcinogenicity, liver and Appeal No.41/2020 (WZ) Page 11 of 32 kidney etc. adversely. It is further submitted that the Expert Appraisal Committee (EAC) (Industry-2 Sector) considered the proposal of respondent No.4/Madura Carbon India Ltd. in its Meeting held during 25th-27th February, 2020 without considering the issues that arise from manufacturing of carbon black and recommended for grant of EC. One of the recommendations made was that "Mitigating measures suggested during process safety and risk assessment studies shall be carried out". But without considering that the mitigating measures would be adopted or not in order to combat adverse environmental impact, clearance was given for manufacture of carbon black. Hence the above prayers are made.
14. This matter was first considered by the Tribunal on 14.09.2020 and notices were directed to be issued to the respondents.
15. Service affidavit has been filed by the applicants, as per which service of notice upon all the respondents is found to be sufficient.
16. From the side of respondent No.4/Madura Carbon India Ltd.(Project Proponent), reply affidavit dated 02.08.2021 has been filed, where-in it is submitted that the Carbon Black is reinforcing material, which is filled up in rubber products. There is severe crisis of its availability. Presently, the demand of Carbon Black including by the Tyre Manufacturers is at 12.85 LT, while the country's CB manufacturing capacity is just 9.5 LT. Therefore, the answering respondent decided to set up the present plant with all modern technologies for the manufacturing of CB. In view of the same, the respondent No.4 approached GIDC and requested for a suitable land for setting up of the present plant. Accordingly, the respondent No.4 and the Collector, Valsad proceeded to issue N.A. orders dated 16.01.2019 in respect of the lands mentioned herein above for setting up of the said Appeal No.41/2020 (WZ) Page 12 of 32 manufacturing unit, the said NA orders are annexed as Annexure- R-2 and that the same has not been challenged in any court of law.
17. It is further submitted in this affidavit by the respondent No.4/Madura Carbon India Ltd.(Project Proponent) that it had appointed the Consultant to conduct the Environment Impact Assessment Report (EIAR) for setting up of the CB manufacturing plant. The said plant appears to have been set up with most advanced techniques to be deployed by the respondent No.4, which will considerably reduce the air pollution. The answering respondent has also given the Environment Management Plan, which will ensure the compliance of all the Regulations.
18. It is further submitted in this affidavit by the respondent No.4/Madura Carbon India Ltd.(Project Proponent) that in view of the EIA submitted by the answering respondent, the respondent No.3/GPCB issued a notice with respect to conducting a public hearing for setting up of the manufacturing project of respondent No.4 in the nearby villages vide its order dated 19.07.2019, a copy of which is annexed as Annexure- R/4. The appellants had also attended the public hearing, in which all the issues raised by the appellants were considered by the authorities and after considering their objections as well as that of the queries raised by the villagers, the proceedings were concluded. Based on the Minutes of the Public Hearing along-with the documents submitted by the appellants, the respondent No.1 has proceeded to grant the Environment Clearance Certificate on 18.5.2020 in favour of the respondent No.4, a copy of the same is annexed as Annexure- R/5.
19. It is further submitted in this affidavit by the respondent No.4/Madura Carbon India Ltd.(Project Proponent) that the answering Appeal No.41/2020 (WZ) Page 13 of 32 respondent had applied for EC in accordance with the said procedure. Its application was scrutinized and after verification, the authorities duly considered the same along-with the public hearing. Therefore, there is no infirmity in the procedure followed. The land in question is not an agricultural land lying in Scheduled area, which has been confirmed by the Collector, Valsad. Further, it is submitted that the land was finalized by the Collector and the GIDC and was allocated to the respondent No.4 for setting up of the plant in question. The said land is not covered U/s 73 (aa) of the Panchayats (Extension to the Scheduled Areas) Act, 1996. Besides, Gujarat Tenancy and Agricultural Lands Act, 1948 also does not form part of the Schedule I of the National Green Tribunal Act, 2010. According to it, Gram Panchayat Meeting was held on 01.12.2018, where- in they had unanimously passed a resolution to award the land to the respondent No.4 for setting up of the plant in question, a copy of which is annexed as Annexure- R/7. This Tribunal does not have jurisdiction to decide the issues arising out of violation of the Scheduled Areas Act, 1996 as this Act does not form part of Schedule- I of the National Green Tribunal Act, 2010. A detailed Environment Impact Assessment study has been conducted by the respondent No.4, which has dedicated a complete chapter in the report with regard to control of the air pollution and control of emission. The Environment Management Plan submitted by the answering respondent makes it crystal clear that the allegations of the appellants are baseless.
20. From the side of respondent No.1/MoEF&CC, reply affidavit dated 04.12.2020 has been filed, where-in it is submitted that the answering respondent had granted ToR to respondent No.4/Project Proponent on 06.04.2019. The Expert Appraisal Committee (EAC) held its meeting on Appeal No.41/2020 (WZ) Page 14 of 32 25-27th February, 2020, where-in it considered the EIA/EMP report and found the same to be satisfactory, complying with the ToR and recommended the project for grant of environmental clearance to respondent No.4. The Committee found the baseline data and incremental GLC (Ground-Level Concentration) in the proposed project to be within the NAAQ standard and that the issues raised in the public hearing were properly addressed in the EIA/EMP report. Based on the recommendations of the EAC, the Ministry had granted EC to the Project Proponent on 18.05.2020, as per the provisions of the EIA Notification, 2006, subject to compliance of specific terms and conditions.
21. The appellant has filed rejoinder affidavit dated 02.03.2023, in which almost same facts have been reiterated, which has been cited by the appellant in the memo of appeal. In addition to that, it is submitted that the project in question is coming up in the middle of Village: Karajgam. At a distance of 500-800m. from the periphery of the project, approximately 3,149 residents reside on 10 streets, which would be affected by the air pollution caused by the unit in the form of carbon black powder. The emission of carbon black powder and VOCs comprising benzene are harmful for the health of the surrounding residents of Village: Karajgam. Several types of EIA report are cited such as Chapter 2, Section 2.6.2, Page Nos.2.10 to 2.12 of Draft EIA report and it is stated about them that there are no details given therein as to which types and characteristics of VOCs would be emitted as the same is dependant upon the type of technology adopted. These things are not specified in the Draft EIA or final EIA. The quality of the raw material to be used, would determine the primary particle sizes and the emissions. All these aspects have not been addressed in the EMP prepared by respondent No.4.
Appeal No.41/2020 (WZ) Page 15 of 32
22. Besides the above pleadings, the appellants as well as respondent No.4 have filed their written submissions, in which we find that in the written submission of respondent No.4 dated 25.03.2023 in tabular form, the allegations of the appellants are copied from the memo of appeal and in front of them, their responses by respondent No.4 are indicated. Therefore, it would be nothing but repetition of the same facts, which we have already mentioned above in the pleadings.
23. Apart from that, from the side of appellants, written submission dated 22.05.2023 has also been filed, which are given in tabular form mentioning therein the particulars of the case along-with page numbers, which are nothing but repetition of the same facts, which we have cited above.
24. Thereafter, the appellants have also submitted additional written submission dated 25.05.2023, which too is in tabular form and contents of the same are also found to be mostly repetition of the same facts, which we have already described in appellants' pleading above.
25. Heard the arguments of learned counsel for parties and perused the record.
26. We may point out that, by and large, whatever arguments were raised by the learned counsel for parties, we have already recorded in our earlier order dated 31.08.2023, which shall form part of this Judgment/order.
27. The learned counsel for appellants has emphasized that in Form No.1, it has been concealed from being mentioned that the area, where the project of respondent No.4 is coming up, is a scheduled area. In this Appeal No.41/2020 (WZ) Page 16 of 32 regard, when we made a query from the learned counsel for appellants as to what impact it would have, had the area in question been a scheduled area, in regard to granting EC. To this query, no appropriate reply could be given because the learned counsel for appellants could not convince us that in a scheduled area, grant of EC is prohibited, therefore, no further consideration is required to be made in this regard.
28. The 2nd point raised by the learned counsel for appellants is that initially the area for setting up of the plant in question comprised 2,35,239 sq. mtrs. i.e. 58.13 acres of land. But subsequently, after EDS (Essential Documents Sought), the same was reduced to 94,499 sq. mtrs. i.e. 23.3 acres of land. In this backdrop, it has been emphasized that the same layout of the unit, which was to come up in an area of 58.13 acres of land could not have been set up on smaller area of 23.3 acres of land, which consisted of only 8 Survey Numbers as against the earlier large number of survey numbers. The objection appears to be that the layout, which was for the larger area, could not have been accommodated in smaller area. But we are not in agreement with the view point of the learned counsel for appellants because we may refer here to the final EIA report at page no.552 of the paper book, in which the break-up of 94,499 sq. mtrs. i.e. 23 acres is given, which comprised of Process Area - 31703 sq. mtrs., Open Area (Roads, Drains, Space)- 37996 sq. mtrs. and Greenbelt Area - 24,800 sq. mtrs. and drawing of the layout of the said plant is also given at page no.551 of the paper book. It is evident from the above that in smaller area i.e. 23 acres of land, the Project Proponent found the project viable and accordingly, they sought EC for setting up of the said plant. We do not find any substance or force in the argument made by the learned counsel for appellants in this regard.
Appeal No.41/2020 (WZ) Page 17 of 32
29. The learned counsel for appellants has also drawn our attention to page no.137 of the paper book, which is a revenue map of the site in question, in which survey numbers, over which the plant is coming up, have been indicated and she also drew our attention to page no.1697 of the paper book, which contains a map, where-in it is recorded that the survey numbers in red colour were shown in pre-feasibility report, while 8 survey numbers were shown in yellow colour in application on which EC is obtained. Having drawn our attention to this map, it is argued by the said learned counsel that the survey numbers on which EC has been granted, are not contiguous. Therefore, the plant layout would not fit in over this parcel of land. We do not agree with this argument because the facilities, which are going to be set up, may be located at different places. Therefore, even if the area is not contiguous, it could not be concluded that the plant in question was not feasible in the said area.
30. Thereafter, our attention is drawn by the learned counsel for appellants to Form No.1, annexed at page nos.111 to 119 of the paper book, in which at page no.117 of the paper book, point no.9 relating to factors, which should be considered (such as consequential development), which could lead to environmental effects or the potential for cumulative impacts with other existing or planned activities in the locality, where-in at serial no.9.4 related to "Have cumulative effects due to proximity to other existing or planned projects with similar effects", against that the information is given "No".
31. Having drawn our attention to this, it is argued by the learned counsel for appellants that Vapi industrial area is located in a close proximity i.e. 10 to 15 kms., but the Sarigam is located at the distance of less than 10 kms. from the place where the project in question is going to Appeal No.41/2020 (WZ) Page 18 of 32 come up. These facts have been concealed as they were not disclosed in the application in the relevant column against the information sought.
32. Thereafter, the learned counsel for appellants has drawn our attention to page no.118 of the same document, in which at serial no.11 information is sought related to areas already subjected to pollution or environmental damage (those where existing legal environmental standards are exceeded) and in the information column, "Not applicable" is mentioned.
33. Having drawn our attention to this, the learned counsel for appellants has made same argument, which has been cited by us above. In this regard, we have to submit that Vapi is located beyond 10 kms. hence was not required to be mentioned nor any study was required to be conducted about it, as per the necessary norm. But as regard the Sarigam, the study has been conducted, which is reflected in EIA report at page no.586 of the paper book. In the study of this area, the EIA report says that no higher pollution would result by setting up of the present plant in question, despite the fact that there were some industries in Sarigam. We do not have any good reason to discard the opinion expressed by an expert body simply on the basis of an apprehension/argument raised by the learned counsel for appellants that the location of the other industries in that area, which are already highly polluting, should have been disclosed in Form- 1 so that appropriate study could have been made in the present case regarding cumulative adverse impact on environment. In this regard, we may highlight that the EIA study at page nos.845-846 of the paper book, are detailed study in regard to air pollution, in which following conclusions are drawn with which we are absolutely in agreement, the same being drawn by an expert body, which clearly says that the impact of Appeal No.41/2020 (WZ) Page 19 of 32 the pollutants on the ambient air environment will not be significant in the present case, if the plant in question is set up at the site in question:-
"
Appeal No.41/2020 (WZ) Page 20 of 32 Appeal No.41/2020 (WZ) Page 21 of 32
"
34. Thereafter, another point raised by the learned counsel for appellants is that the plant, which is proposed to be set up, is of Red Category, for which special ToR, in addition to the standard ToR were required to be framed. But in this case, nothing of the sort has been done. When we made a query from the learned counsel for appellants as to what specific ToR was required to be added, in respect of the present plant in question, no specific reply could be given. Therefore, we are of the view that whatever ToRs were framed by the expert body, which is done by the Ministry of Environment, should be taken to be a correct ToR.
35. Thereafter, the learned counsel for appellants has drawn our attention to page no.645 of the paper book, at which Final Environmental Impact Assessment Report is contained and this part of the report deals with the points raised during public hearing. Out of these points, which were raised, our attention is drawn to the specific point at serial no.4, which deals with "Management of VOC & odour" and at serial no.5 related to air, water, noise and land pollution.
36. Along-with the above, our attention is drawn to page no.431 of the paper book, which is a part of the Federal Register- (Part IV) Appeal No.41/2020 (WZ) Page 22 of 32 Environmental Protection Agency. In this study, which appears to be done abroad, at point (IV), the matter "Proposed Area Source NESHAP for Carbon Black Production" has been dealt with, relevant portion of this study is reproduced herein below:-
"The Carbon Black Production area source category was listed for regulation due to emissions of the urban HAP POM. Benzene is another urban HAP emitted from the CBU. The HAP are released into the atmosphere from the tailgases from the reactors. The carbon black and tailgas stream is sent to a baghouse where the carbon black is separated from the tailgas. After separation of the carbon black product, the tailgas is either emitted to the atmosphere or sent to a combustion control device."
37. Having drawn our attention to the above, it is mainly emphasized by the learned counsel for appellants that one of the VoCs (Volatile Organic Compounds) is Benzene, which is highly toxic and injurious to the public health. The project being set up in the area, which is highly residential, emission of benzene would certainly cause harm in certain areas, if the project in question is allowed to be set up.
38. We are not in agreement with the argument made by the learned counsel for appellants because the Carbon products, which would be emanating out of the unit, would be sent to combustion control device, as per this study, where-as at page no.645 of the paper book, the Project Proponent has suggested that he would resort to the same process, which can be concluded from the reply, which is given at page nos.645-646 of the paper book by the Project Proponent, relevant portion of which is quoted herein below:-
"FINAL ENVIRONMENT IMPACT ASSESSMENT REPORT Proposed Project for manufacturing of Carbon Black & Power Generation (Green Power) Additiona Sr. l Budget to be Key Issues Reply during PH No. Measures allocated Proposed Appeal No.41/2020 (WZ) Page 23 of 32
4. Management Plant will be based on fully --
of VOC & automated
odour (D.C.S) system. An
Automatic leakage detection
system will be installed. The
off-gas generated during the
manufacturing of Carbon
Black will be used as fuel in
boiler and dryer. Hence,
there will be no odour
generation from the plant.
"
39. Thereafter, our attention is drawn by the learned counsel for appellant at page no.186 of the paper book, which is the documents related to the public hearing. Having drawn our attention to this, it is argued by the learned counsel for appellants that at serial no.2, the name of the person, who has raised the objection, is mentioned and column 2 contained the objection raised and Column 4 is the reply given by the Project Proponent. According to her, for an example, the reply given to the objection raised by the person at serial no.1 related to emission of toxic gases like SO2 and CO gases, are apprehended and answer is given that adequate stack height will be provided as per the Government and GPCB Appeal No.41/2020 (WZ) Page 24 of 32 norms, which would take care of it. To this, the learned counsel for appellants submits that it is not an adequate reply. Similarly, our attention is drawn by her to serial no.7 of the same, in which there are several objections raised relating to emission of PM, SOX & NOX etc. objections related to ETP, if the same stops working, in that situation, how and where water will be discharged etc. It is indicated that these objections were not taken into consideration as no reply is found to have been mentioned in Column (IV). But we find that the reply to the said query has been given at page nos.644 to 651 of the paper book. Therefore, we do not find truthfulness in this argument.
40. We may also mention here that the EIA Notification -2006 has provided in para 7(i):- The environmental clearance process for new projects will comprise four stages, one of which is a Public Consultation as well and it is recorded in this that "After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal. The applicant may alternatively submit a supplementary report to draft EIA and EMP addressing all the concerns expressed during the public consultation".
41. In the light of above provision of law, we would like to come to page no.643 of the paper book, where-in, in para no.7.2, it is recorded that "A summarized table showing salient points highlighting issues raised by the participants & issues raised by the concerned persons having plausible stake in Environment and responded by the representatives of applicant Appeal No.41/2020 (WZ) Page 25 of 32 during the Public Hearing along-with the additional measures, if any proposed after the PH, is provided below":-
"
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"
Appeal No.41/2020 (WZ) Page 30 of 32
42. Above chart clearly indicates that in Column 4, additional measures proposed are also incorporated and in our estimation, if these measures are adopted by the Project Proponent, there will be left no apprehensions, which are raised by the learned counsel for appellants.
43. The learned counsel for appellants has also relied upon the following case laws:-
"
i. Hanuman Laxman Aroskar and Ors. Vs. Union of India (UOI) and Ors.( (2019)15SC C 401), (MANU/SC/0444/2019) ii. University of Delhi Vs. Respondent: Ministry of Environment Forest and Climate Change and Ors. MANU/GT/0162/2022 iii. Bengaluru Development Authority vs. Sudhakar Hegde & Others MANU/SC/0308/2020 : (2020) 15 SCC 63.
iv. Intellectuals Forum, Tirupati vs. State of A.P. & Others MANU/SC/8047/2006 :(2006) 3 SCC 549 v. Supertech Ltd. vs. Emerald Court Owner Resident Welfare Association & Others MANU/SC/0580/2021: (2021) 10 SCC 1"
44. We have gone through each and every of these case laws but we do not find any of these Judgments would squarely apply in the case in hand. We may also mention here that it was not specifically indicated by the learned counsel for appellants as to how these case laws are applicable in the present case, in view of the facts before us nor any specific paragraphs have been cited which she relied upon. Hence, we do not find it appropriate to mention details of these rulings here.
45. From the side of respondent No.4, it is submitted that the entire procedure, which has been laid down under EIA Notification- 2006, has been followed by them for obtaining EC, which has also been agreed to by the respondent No.1/MoEF&CC. It is also emphasized by him that whatever points were raised during public hearing, were adequately addressed. Therefore, there is no reason why the EC should be set aside. Appeal No.41/2020 (WZ) Page 31 of 32
46. After having gone through the entire record and having heard the arguments of the learned counsel for parties as mentioned above and having perused the documents in depth, we are of the view that whatever best measures could be adopted for controlling the pollution and minimizing the adverse impact on environment appears to have been taken by the Project Proponent. Besides that, we can also express our view that the industrialization of the country cannot be halted merely because of apprehension that the pollution would happen if such kind of industries would be allowed to be set up.
47. We are also of the view that adequate measures are adopted by the Project Proponent/industry and expert body has appraised the same and find that the same are adequate to take care of the apprehension of pollution, the industrialization should not be stopped.
48. In view of above, we are of the view that this appeal has no force and deserves to be rejected and is accordingly rejected.
49. All pending applications, if any, also stand disposed of. No order as to cost.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM October 18, 2023 Appeal No.41/2020 (WZ) P.kr.
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