National Green Tribunal
Husain Saleh Mahmad Usman Bhai Kara vs Gujarat Seiaa Ors on 18 July, 2013
BEFORE THE NATIONAL GREEN TRIBUNAL
(PRINCIPAL BENCH), NEW DELHI
APPEAL No. 38/2012
18th July, 2013
CORAM:
1. Hon'ble Shri Justice V.R. Kingaonkar
(Judicial Member)
2. Hon'ble Dr. G.K. Pandey
(Expert Member)
3. Hon'ble Dr. P.C. Mishra
(Expert Member)
4. Hon'ble Prof. A. R. Yousuf
(Expert Member)
5. Hon'ble Dr. R.C. Trivedi
(Expert Member)
B E T W E E N:
Husain Saleh Mahmad Usman Bhai Kara,
S/o Shri Saleh Mahmad Usman Bhai Kara,
R/o Village Bhadreshwar, Taluka Munda,
Dist. Bhuj Kutch, Gujarat 370411
.....Appellant
AND
1. Gujarat State Level Environment Impact Assessment
Authority
Through the Member Secretary
Paryavaran Bhawan, Sector-10A
Gandhinagar, Gujarat 382010
1
2. M/s OPG Power Gujarat Pvt. Ltd.
Through the Managing Director,
167, St. Mary's Road, Alwarpet
Chennai, Tamil Nadu 600018
......Respondents
(Advocates appeared: Mr. Raj Panjwani, Sr. Advocate
along with Mr. Ritwick Dutta, Mr. Rahul Choudhary and
Ms. Srilekha Sridhar, Advocates for the Appellant and
Mr. S. Panda, Advocate for Respondent No. 1 and Mr.
Ravi Kadam, Sr. Advocate along with Mr. Kamal
Budhiraja and Mr. Aman Gupta, Advocates)
J U D G M E N T
This Appeal raises somewhat peculiar substantial question of law. Question that falls for consideration, in short, is thus:
"Whether mere change of technology for cooling system from water cooling technology to Air cooling technology in the proposed coal-based thermal power plant, for which Environmental Clearance was granted, becomes a new project and therefore, it is essential to undergo the entire process as contemplated in the Rule 7(i) of EIA Notification dated 14th September, 2006"?
2. The Appellant claims to be an inhabitant of village Bhadreshwar (Mundra, Taluk) situated in Bhuj, Kutch, State of Gujarat. By way of present Appeal, he challenges the order dated 15th May, 2012 issued by the Gujarat State Level 2 Environment Impact Assessment Authority (SEIAA) vide letter no. SEIAA/GUJ/EC/1(d)/130/2012 whereby amendment of earlier Environmental Clearance (EC) dated 11th June, 2010 was allowed for change of technology from water cooling system to air cooling system for the Thermal Power Plant. M/s. OPG Power Gujarat Limited (Respondent No. 2) is the Project Proponent. Hereinafter, it will be referred as "OPG Power Ltd.". Gujarat State Level Environment Impact Assessment Authority is the Respondent No. 1 and will be referred hereafter as "SEIAA".
3. Before we proceed to consider the controversy raised in the present Appeal, some background facts may be set-out. These facts will demonstrate chequered history of the litigation which emanates from grant of Environmental Clearances (ECs) for setting up of proposed 300 MW (2x150 MW) coal-based Thermal Power Plant undertaken by OPG Power Ltd.
4. OPG Power Ltd. submitted Application for grant of EC to the SEIAA for setting up of coal based Thermal Plant. The capacity of proposed Thermal Plant is of 300 MW (2x150 MW). The required procedure was adopted for consideration of the proposal. Thereafter, SEIAA, Gujarat, accorded EC on 11th June, 2010. The said EC order was challenged by the Appellant by filing Appeal No. 19/2011(T). Originally, that Appeal was preferred before the National Environment Appellate Authority (NEAA Appeal No. 22/2010). OPG Power Ltd. had applied for grant of CRZ Clearance for the proposed intake and drifting-out sea water for that project. By letter dated 16th September, 2011, 3 the Ministry of Environment & Forests (MoEF) granted the CRZ Clearance. Feeling aggrieved, the CRZ Clearance was also challenged by way of Appeal No. 37/2011. The CRZ Clearance was found necessary because OPG Power Ltd. desired to enroute the sea water through the pipeline which was to be laid through forest area. It is pertinent to note that for laying down the pipeline , OPG Power Ltd. did not apply for permission to use forest land nor to cut down trees as it was only some patch of forest land which needed to be used for laying down the pipeline.
5. The Appellant further had filed an Application bearing Application No. 32/2011 alleging that violation of the provisions of the Environment (Protection) Act, 1986 was being done by OPG Power Ltd. because OPG Power Ltd. was violating the guidelines issued under the Forest (Conservation) Act, 1980 and was continuing construction activity, particularly, laying down of pipeline through the forest area though Forest Clearance (FC) had not been granted.
6. All the three matters were clubbed together for common hearing by this Tribunal. During course of the hearing of the above matters, a statement was made by Learned Senior Counsel appearing for the OPG Power Ltd. that change of the technique for cooling system was being examined and if such different technique is used then there will be no need to use any forest land. So also, there will be of no need to use sea water. It may be noted that in the earlier two Appeals, chief bone of the contentions raised by the Appellant were as follows: 4
a). That, due to use of water cooling system, hot water would gush from the outlet opened to sea and thereby aquatic marine life will be endangered, salinity of the sea water will increase and it would adversely impact flora and fauna;
b). That, laying down of the pipeline through forest land will adversely affect the forest land including the mangroves and that may cause adverse impact on rare species of birds;
7. By common judgment dated 8th February, 2012, all those three cases were decided by this Tribunal. This Tribunal gave certain directions while disposing of the two Appeals and the Application mentioned above.
8. The direction given by this Tribunal were as shown below:
ii) If the company proposed any deviation of their original project plan by implementing technical change, they shall apply to the concerned Authorities who shall consider the same strictly in consonance with law and dispose the same as expeditiously as possible, but not later than four months.
iii) If the company intends to follow the original project technique then it shall make further applications under the Forest (Conservation) Act, 1980 which shall be 5 dealt on its own merits and disposed of in accordance with law also within a span of two months.
9. Further, during pendency of the above three matters, the FC was granted. The only concern that was expressed by the Appellant was that the OPG Power Ltd. had violated terms and conditions of the EC. This Tribunal directed the SEIAA, Gujarat to initiate necessary proceedings against OPG Power Ltd. in case of violation of the terms, including encroachment on a part of river. Still, however, this Tribunal observed that:-
"Its observations were only prima-facie."
10. Going by pleadings of the Appellant, it may be gathered that the impugned order of EC is being now challenged mainly on the following grounds:-
(i). The SEIAA granted the EC without following the procedure contemplated in the EIA Notification dated 14th September, 2006, without application of mind and illegally gave goby to the procedure of screening, scoping, public consultation and appraisal of the project.
(ii). The change in technology for cooling would make it entirely a new project since it is bound to change the impact on the ecology and the livelihood.
(iii). The SEIAA granted new EC and that the impugned order dated 15.05.2012 does not amount to mere "amendment" since it being a new project. All the 6 steps should have been followed in accordance with the EIA Notification dated 14th September, 2006.
Thus, circumventing of the required process makes the impugned EC illegal and, therefore, it is liable to be quashed.
(iv). That, the likely implications of the change in technology from water cooling system to air cooling system were not put in the public domain and therefore, the participation of the public was unavailable in the context of impact that will be caused due to change in the technology.
11. The OPG Power Ltd. denied the allegations that change in technology makes the project altogether a "new project". It is denied that the entire procedure as contemplated under the EIA Notification dated 14th September, 2006 ought to have been followed. It is also denied that the SEIAA failed to apply its mind to the impact of the change in technology and probable environmental issues arising due to such change.
12. SEIAA also supports the impugned order.
13. We have extensively heard Learned Senior Counsel Mr. Raj Panjwani appearing for the Appellant, Learned Senior Counsel Mr. Ravi Kadam appearing for the OPG Power Ltd. (Respondent No. 2) and Mr. S. Panda, Learned Counsel appearing for SEIAA (Respondent No. 1). We have also perused notes of written submissions put forth by the Appellant. The 7 written submissions dated 12.07.2013 exhaustively deal with the objections raised by the Appellant. It may be, however, mentioned that in the written submissions as well as oral submissions, the arguments of the Appellant appear to have been exceeded from the earlier grounds shown in Appeal Memo and many other issues are raised at the subsequent stage. For example, it is alleged that impact of acquisition of land for road to connect Anjar, Mundra Road has not been considered by the SEIAA. It is further averred that water requirement of the plant is likely to be increased after the amended cooling system. It is further alleged that the SEAC mechanically agreed to the submissions of the OPG Power Ltd. The independent application of mind by the SEAC was not done while considering the change of technology for cooling. It is further contended that the change of technology is major and therefore, it shall be termed as "a new project" which requires assessment in accordance with the EIA Notification dated 14th September, 2006. It is further argued that the cumulative impact of the projects in that area has not been duly considered. So also, the burning of coal and transportation of the same is likely to cause adverse impact on the environment which is not considered by the SEAC.
14. It is argued that the "precautionary principle" as laid down in "Vellor Citizen's Welfare Forum Vs. Union of India"
(1996) 5 SCC is not applied before grant of the impugned EC. It is contended that change of the technique in cooling system would change the entire complexion of the project and, therefore, 8 the impugned EC is bad in law inasmuch as it is not covered by exception under Regulation-7(ii) of the EIA Notification dated 14th September, 2006. Moreover, the State Expert Appraisal Committee failed to exercise due diligence before making the project an exception for fresh evaluation as per norms of the relevant EIA Notification.
15. Per-contra, Learned Senior Counsel for Respondent No. 2- Mr. Ravi Kadam submits that the previous stand of the Appellant was completely on different footings and in order to mitigate the environmental problems, OPG Power Ltd. simply adopted change in the technique which is environment friendly and more beneficial to the environment. He argued that the earlier allegation of the Appellant that the FC was needed because the water pipeline was likely to cause diversion of forest land is no more available to the Appellant because now there will be no requirement of laying down the pipeline. He further argued that the use of sea water or ground water will not be required due to change in the cooling system. He argued that the change in the cooling technique does not make the project as a "new project". He further submitted that the SEAC and SEIAA granted the EC in question after due application of mind. He argued that the change in the cooling system was undertaken since a particular statement was made before this Tribunal in the earlier litigations. His main contention is that the reassessment of the project was not at all required when after considering all the relevant circumstances, the Regulation 7(ii) 9 was invoked by the SEAC. He pointed out that the land requirement is same, the fuel used will be the same, the capacity of the project will be the same and there will be no material change in the original proposal except for technical change in the nature of cooling system that has to be adopted. He argued that the change in the cooling system will, in fact, lessen burden on the environment. He argued that the change in the cooling system is in keeping with the principle of "sustainable development". Hence, he urged to dismiss the Appeal.
16. The points for determination in this Appeal are as shown below:
i). Whether mere change of cooling system for power generation plant will amount to making it as a "new project" and requires the project to be assessed by the process of rescreening, rescoping, public hearing afresh and reappraisal.?
ii). Whether the change in the cooling technique from Water Cooling system to Air Cooling System would add to any substantial burden on the environment and is likely to cause damage to it?
iii). Whether the SEIAA applied its mind in exercising discretion available vide Regulation 7(ii) of the Ministry of Environment & Forest Notification dated 14th September, 2006?
17. Before considering the merits of the appeal, let it be noted that the Appellant had filed Review Application No. 2 of 2012 seeking change in the common order dated 8.2.2012 10 passed by the Tribunal in Appeal No. 19 of 2011 (T) (NEAA Appeal No. 22 of 2010), Appeal No. 32 of 2011. That Review Application was dismissed. Resultantly, the OPG Power Pvt. Ltd. submitted Application afresh to the SEIAA for grant of EC due to change in the Cooling system, in order to dispel the objections that were raised by the Appellant herein and some other persons, including a group of fishermen. The earlier objections were that the laying down a pipeline would need FC and the Water Cooling system was detrimental to the environment and ecology. In fact, to quell those objections, OPG Power Pvt. Ltd. desired to change technique of the Cooling system. The FC was, however, granted in the meanwhile, on 20th April, 2012, prior to filing of such fresh Application to the SEIAA by OPG Power Pvt. Ltd.
18. The SEAC in its various meetings examined the proposal submitted by the Project Proponent for change in cooling technology i.e. from water cooling to air cooling system and issued amended EC on 16th April, 2012 allowing use of the air cooling technology in stead of water cooling technology. The minutes of SEAC meetings dated 13.3.2012 and 31.3.2012 indicate that the related environmental issues pertaining to the air cooling technology were discussed in the meetings and on being satisfied about the benefits thereof the SEAC recommended the amendment as required in the EC with respect to air cooling technology instead of water cooling technology. 11
19. Mr. Raj Panjwani, Learned Senior Counsel appearing for the Appellant, however, submitted that the action taken by the SEIAA in issuing amendment to the EC conditions allowing the Project Proponent to use air cooling technology is not in accordance with law i.e. as per the provisions of the EIA Notification, 2006. In particular, he contended that the entire exercise of the EIA process right from the ToR stage to the preparation of EIA Report and public hearing was required afresh in view of the change in the cooling technology adopted by the OPG Power Pvt. Ltd. Learned Senior Counsel for OPG Power Pvt. Ltd., during the course of hearing, stated that it has placed the order for air cooling system with M/s. GEA Cooling Tower Technologies India Private Limited which is associated to GEA Heat Exchanger GmbH of Germany. He also stated that the world's largest air cooled condensers are installed in a Power Plant of 6x665 MW capacity in South Africa and the same has been operating successfully for the last 14 years. Further, air cooling technology is also being used in the power project of 77 MW located at Gummdipoondi in Thiruvallur district of Tamil Nadu from the year 2010. However, the Learned Senior Counsel for the Appellant has raised apprehensions on the working of air cooling technology in India and submitted that there is very little experience available as most of the power plants in India are basically using water cooling technology. The Project Proponent (OPG Power Pvt. Ltd.) has given comparison of water cooling and air cooling technology in terms of land requirement and noise levels and categorically demonstrated that there will be less land 12 requirement and also less noise pollution due to adoption of air cooling technology and that the noise level will not exceed 70 dB(A).
20. In view of the above submissions, the apprehensions regarding noise pollution raised by the Learned Senior Counsel for the Appellant does not appear to be realistic as the supplier of the air cooling technology is an international Company having expertise in production of such cooling system which have been provided in different parts of the world and we have no reason to disbelieve that the said technology and the equipment supplied by an internationally renowned company will not do suitable work in India. Rather air cooling technology appears to be much better for this area as it will not have any adverse impact on the marine eco-system, including adverse impact on aquatic life including Bombay Duck fish.
21. We deem it appropriate, at this juncture, to deal with the contention raised by Learned Senior Counsel Mr. Panjwani in the context of nomenclature of the project in question. His main argument is that due to change in the technique of cooling system, the power project ought to be treated as a "new unit". It becomes necessary, therefore, to closely examine Regulation 7(ii) of the MoEF Notification dated 14th September, 2006. For ready reference, it may be reproduced as below:
"(ii) Prior Environmental Clearance (EC) process for Expansion or Modernization or change of product mix in existing projects. - All applications seeking prior environmental clearance for expansion with 13 increase in the production capacity beyond the capacity for which prior environmental clearance has been granted under this notification or with increase in either lease area or production capacity in the case of mining projects or for the modernization of an existing unit with increase in the total production capacity beyond the threshold limit prescribed in the Schedule to this notification through change in process and or technology or involving a change in the product-mix shall be made in Form I and they shall be considered by the concerned Expert Appraisal Committee or State Level Expert Appraisal Committee within sixty days, who will decide on the due diligence necessary including preparation of EIA and public consultations and the application shall be appraised accordingly for grant of environmental clearance."
It is well settled that title of the clause gives key to the interpretation of the text of any provision. What follows from the title of the Regulation 7(ii) is manifestly clear that prior EC process is needed only in case of following categories:-
i). For expansion of the existing unit;
ii). Modernization of the existing unit;
iii). Change of the product-mix in existing projects.
As regards category (i), expansion of the project must amount to increase in the production capacity beyond the capacity for which prior EC has been granted under the Notification or with increase in either lease area or production capacity in the case of mining projects. It is important to note that under category (i) the subsequent sentence "or for the modernization of an existing unit with increase in the total 14 production capacity beyond the threshold limit prescribed in the Schedule of this notification through change in process and or technology" would clearly imply that it is only when the modernization has nexus with increase in the total production capacity beyond the threshold limit, it is necessary for the Project Proponent to submit application in Form-I. Secondly, the words "an existing unit" also have to be read in conjunction with the sentence that follows thereafter.
22. Now, though the words "a project which has not become functional" are not mentioned in the Regulation 7(ii) yet such omission will not make the present project of OPG Power Pvt. Ltd. as a "new unit". The reasons are not far to seek. There is omission of the words "mining activity" in the title ascribed to the Regulation 7(ii) though it so appears in the sub-clause thereof. Secondly, the words "existing unit" cannot be read in isolation. These words are used to explain the nature of modernisation which could increase total production capacity beyond threshold limit prescribed in the relevant schedule annexed with the Notification. That is not the case here. Obviously, the only deducible conclusion which may be drawn is that when there is no change in the production capacity then the expression "existing unit" has no relevance. We deem it proper therefore to adopt liberal interpretation of sub-clause (ii) of Regulation 7. We hold, therefore, that OPG Power Pvt. Ltd. has to be treated as existing unit for the purpose of Regulation 7(ii). 15 May be it is in inchoate state yet spade work has already been done and arrangement to make it functional were being done.
23. One cannot simply consider omission of the category of the projects which have been granted clearance but have not been yet made functional due to technical reasons, so as to exclude the same from applicability of Regulation 7(ii). The Expert Appraisal Committee or State Level Expert Appraisal Committee has discretion to consider and decide whether preparation of the EIA, screening, scoping, and public consultation and appraisal was necessary in such a case. The discretionary power of the EAC cannot be scuttled on assumption that OPG Power Ltd. could not be treated as existing unit. In our opinion, the words "an existing unit" does not only include the units which are functional in all respects, the phraseology also will include those projects which are cleared by the competent authority and are at the stage of take-off position. It will also include those projects which are non-functional due to some technological problems or labour problems but are to be made functional by change in the technology.
24. We may mention here that even an unborn child in the womb of a mother is to be treated as human being in existence in legal parlance. Obviously, even those units which are not operational but are in the take-off position due to prior grant of EC and stuck due to certain impediments ought to be treated as "existing units". Apart from the above discussion, in case of modernization of an existing unit with increase in the 16 total production capacity beyond the threshold limit, there is a need to apply in the relevant format (Form-I). In the present case, admittedly, there is no increase in the total production capacity beyond the threshold limit prescribed in the schedule nor the basic model of the project is sought to be changed.
25. By no stretch of imagination, it can be said that the production capacity, the consumption of coal for running of the thermal power plant, the output of electricity generation, treatment of effluents and RO rejects shall change. The land required for OPG Power Ltd. for the proposed project will also be the same. The only change is in the technique of the cooling system. The earlier objection of the Appellant was that the water cooling system would violate the Forest (Conservation) Act and also could adversely impact the aquatic animals, flora and fauna. As a matter of fact, such apprehension of the Appellant is quelled due to change in the technology of cooling system. The air cooling system for exhaust steam condenser was found to be beneficial for protection of the environment. It is significant to note that the hot air dispensation will be more quick due to air currents near the sea shore. So it is comparatively a more environment friendly cooling system.
26. We have perused minutes of the meetings of SEIAA. The two meetings were held by the SEIAA before granting impugned EC. The minutes of the two meetings dated 13.03.2012 and 31.03.2012, respectively, if read together, clearly go to show application of mind by the Members of the SEIAA. 17 The minutes of first meeting dated 13.03.2012 go to show that the air cooling system was considered but version of OPG Power Ltd. was not accepted as gospel truth. It was observed that heat absorbed by cooling air could be emitted into ambient air above the air cooled condenser in form of hot air, which was previously going into sea in form of warm water, and hence there could be same impact of hot air leaving the air cooled condenser system. Therefore, the committee desired to have a profile of temperature and relative humidity measured at interval of one (1) meter so as to ascertain the exact distance within which ambient temperature is achieved and hence decided to reconsider the case later on. In the 136th meeting dated 31.03.2012, the SEIAA evaluated the impact of air cooled condenser in place of water cooled condenser. The SEIAA noted that waste water generation will reduce significantly from 62, 750 KL/day to 326 KL/day. Obviously, it was noted that 99.5% reduction of waste water generation would be achieved due to adoption of air cooled condenser in place of water cooled condenser. It was further noted that there will be no change in the ash generation quantity as there is no change in the air cooled pattern. Learned Senior Counsel for the Appellant, however, submitted that the above observations of the SEIAA are incorrect, hypothetical and based on conjectures. He submitted that the waste water generation and coal consumption will be much more and as such there will be substantial damage to the environment. We find it difficult to accept the contention of the Learned Senior Counsel of the Appellant. It would be prevarication to dislodge the findings of 18 the Expert Appraisal Committee or that of the SEIAA. What we have to see is whether there is due application of mind by the SEIAA in context of evaluation of the viability of the project in question. We are of the opinion that unless judicial concise is shocked due to the findings of the SEAC or SEIAA, interference in the grant of EC, merely on basis of hypothetical question, unfounded apprehension and non-scientific basis will not be sufficient reason to quash the impugned order of EC. Accordingly, we give "negative" finding on first two points and "positive" finding on the third point stated in the paragraph 16 of this Judgment.
27. Though, it is not necessary to consider the argument of Learned Senior Counsel Shri Ravi Kadam in the context of variance between the pleadings in the appeal memo and subsequent additional substratum which was sought to be put forth by the Appellant, it may be noted that the Appellant has tried to change the stance from time to time. Shri Panjwani, Learned Senior Counsel submits that this Tribunal is not bound by the procedure envisaged under the Civil Procedure Code and, therefore, change in the pleadings or the submissions on the basis of subsequent material will be permissible. True, provisions of the Civil Procedure Code are not strictly applicable to the proceedings before the NGT. Still, however, it does not mean that principles of natural justice have been given decent burial while enacting the relevant provision in the NGT Act. Obviously, when the Appellant wanted to add some more 19 pleadings, amendment in the appeal memo was desirable. The Appellant cannot be allowed to invent a new case from time to time. We are of the opinion that all along the Appellant has exhibited continuous litigative mind and, if we may say so, with impunity. Ordinarily we would have put burden of heavy costs on him. However, the Appellant is said to be a villager, and, therefore, we refrain ourselves from putting burden of heavy costs on him.
28. In the result, we dismiss the Appeal with cost of Rs. 10,000/- (Rupees Ten Thousand only) which the Appellant shall pay to Respondent No. 2 (OPG Power Ltd.) within a period of four (4) weeks.
............................................., JM (V. R. Kingaonkar) ............................................, EM (Dr. G. K. Pandey) ............................................, EM (Dr. P. C. Mishra) ............................................, EM (Prof. A.R. Yousuf) ............................................, EM (Dr. R. C. Trivedi) 20