HANUMAN LAXMAN AROSKAR versus UNION OF INDIA

[2019] 5 S.C.R.

HANUMAN LAXMAN AROSKAR

UNION OF INDIA

(Civil Appeal No. 12251 of 2018)

MARCH 29, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Environmental Law:

CEnvironmental clearance (EC) – Grant of – For developmentof airport in Goa – Challenged before National Green Tribunal(NGT) – NGT affirmed the EC holding that the project did notcompromise with the environment and concluded that furthersafeguards for environmental protection needed to be incorporated– On appeal, held: Rule of law requires regime which has effective,Daccountable and transparent institutions – Responsive, inclusive,participatory and representative decision making are key ingredientsto the rule of law – Public access to information is fundamental tothe preservation of rule of law – Environmental governance that isfounded on the rule of law emerges from the value of the ConstitutionE– Health of environment is key to preserving the right to life as aconstitutionally recognized value under Art.21 – Proper structuresfor environmental decision-making find expression in the guaranteeagainst arbitrary action and the affirmative duty of fair treatmentu/Art. 14 of the Constitution – In the area of environmentalgovernance, the process of decision-making are as crucial as theFultimate decision – The basic postulate of 2006 Notification wasthat the path which was prescribed for disclosures, studies, gatheringdata, consultation and appraisal was designed in manner thatwould secure transparent, responsive and inclusive decision-making – In the present case there was failure to follow bindingGnorms under the 2006 Notification – There were serious flaws indecision-making process – Relevant material was excluded fromconsideration and extraneous circumstances were borne in mind –EAC as an expert body abdicated its obligations to make an expertdetermination based on reasons – NGT as an adjudicatory body

failed to exercise the jurisdiction entrusted to it u/s. 16(h) r/w. s. 20of NGT Act by merely deferring to the decision to recommend andgrant an EC – However, the need for setting up new airport is amatter of policy – In order to bring about wholesome balancebetween the development of infrastructure and preservation ofenvironment, in exercise of jurisdiction of Art. 142 of Constitution,EAC is directed to revisit the conditions subject of which it hadgranted EC, in time bound manner – Constitution of India – Arts.14, 21, 51A(g) and 142 – National Green Tribunal Act, 2010 –ss. 16(h) and 20.

Government of India approved setting up of an airport inGoa in the year 2000. Ministry of Environment and Forests ofGovernment of India issued Notification in 2006, mandating priorEnvironmental Clearance (EC). In 2011 State of Goa as the projectproponent submitted Form 1 as stipulated in 2006 Notification.In 2015 Expert Appraisal Committee (EAC) which wasconstituted under 2006 Notification recommended the grant ofan EC for the project and the Ministry concerned approved grantof EC. Grant of EC was challenged by the appellants before theNational Green Tribunal (NGT). NGT upheld the EC and imposedadditional conditions to safeguard the environment. Hence, thepresent appeals.

Disposing of the appeals, the Court

HELD: 1. The Constitution (Forty-second Amendment) Act1976, which came into force with effect from 3 January 1977,inserted Article 48A to the Constitution which mandates that theState shall endeavor to protect and improve the environment andsafeguard the forests and wildlife of the country. Article 51A(g)of the Constitution places corresponding duty on every citizento protect and improve the natural environment including forests,lakes, rivers and wild life and to have compassion for livingcreatures. Following the decisions taken at the United NationsConference on the Human Environment held at Stockholm in June1972 in which India participated, Parliament enacted theEnvironment Protection Act 1986 to protect and improve theenvironment and prevent hazards to human beings, other livingcreatures, plants and property. [Para 32][951-A-C]

A2. The MoEF, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of Section 3 of the1986 Act read with clause (d) of sub-rule 3 of rule 5 of theEnvironment (Protection) Rules, 1986, issued notificationimposing restrictions and prohibitions on the expansion andmodernisation of any activity or new project unless an EC wasBgranted under the procedure stipulated in the notification. Underthe notification, any person undertaking new project orexpanding and modernizing an existing project was required tosubmit an application to the Secretary, Ministry of Environmentand Forests, New Delhi. On 14 September 2006, MoEF releasedCanother notification in supersession of the previous notification.The salient objective which underlies the 2006 notification is theprotection, preservation and continued sustenance of theenvironment when the execution of new projects or the expansionor modernization of existing projects is envisaged. It imposescertain restrictions and prohibitions based on the potentialDenvironmental impact of projects unless prior EC has beengranted by the concerned authority. The EC is required beforeany construction work, or preparation of land (except for securingthe land) is started on the project or activity listed in the Scheduleto the notification. [Paras 33, 37 and 40][951-C-E; 952-C; 954-EA-B]

3.The process to obtain environmental clearance asstipulated by the notification for new projects comprises amaximum of four stages, all of which may not apply depending onthe specific case stipulated under the notification: Screening;

FScoping; Public Consultation; and Appraisal. [Para 43][955-E-G]

4.The 2006 notification embodies the notion that thedevelopment agenda of the nation must be carried out incompliance with norms stipulated for the protection of theenvironment and its complexities. It serves as balance betweenGdevelopment and protection of the environment: there is no trade-off between the two. The protection of the environment is anessential facet of development. It cannot be reduced to technicalformula. The notification demonstrates an increasing awarenessof the complexities of the environment and the heightenedscrutiny required to ensure its continued sustenance, for todayH

and for generations to come. It embodies commitment tosustainable development. In laying down detailed procedurefor the grant of an Environmental Clearance (EC), the 2006notification attempts to bridge the perceived gap between theenvironment and development. [Para 54][959-C-E]

5. The State of Goa as the project proponent in failing todisclose wet lands, water sources, water bodies, biospheres,mountains and forests within an aerial distance of 15 kilometresas required by Form 1. The disclosure in Form 1 constitutes thevery foundation of the process which is initiated on the basis ofthe information supplied by the project proponent. Following thedisclosure in Form 1, Terms of Reference (ToR) are formulated,and this leads to the preparation of the Environmental ImpactAssessment (EIA) report. duty is cast upon the projectproponent to make full, complete and candid disclosure of allaspects bearing upon the environment in the area of study. Theproject proponent cannot profess an ignorance about theenvironment in the study area. The project proponent is boundby the highest duty of transparency and rectitude in making thedisclosures in Form 1. [Para 67][967-D-F]

6. Form 1 is an important ingredient in the entire processenvisaged under the 2006 notification. Hence, clause (vi) of para8 of the 2006 notification provides that deliberate concealmentor submission of false or misleading information or data which ismaterial to screening or scoping or appraisal or decision on theapplication shall make the application liable for rejection and leadto the cancellation of prior EC granted on that basis. Thedeclaration which is required of the project proponent is to asimilar effect. [Para 68][967-F-G]

7. Form 1 requires disclosure of areas which are importantor sensitive for ecological reasons, among them, being “forests”.The expression “forests” is used without reference to statutoryor artificial definition and must hence incorporate meaning whichbears upon the ordinary description of the term. The expression“forests”, means forest as commonly understood, withoutreference to notification under the Indian Forest Act 1927 orany other statutory enactment. Such an interpretation will subserve

Athe purpose of an (EIA). The purpose is to ensure that all relevantfacets of the environment are noticed, that base-lines aredocumented, and that the potential impact of project or activityon the environment is assessed. Forests are forests withoutreference to recognition in statutory form devised for specificpurpose. Therefore, it is not correct that the disclosure requiredBwas of reserved forests comprehended within notification undersub-section (2) of Section 20 of the Indian Forest Act 1927.[Para 69][967-H; 968-A-C]

T N Godavarman Thirumalpad v. Union of India(1997) 2 SCC 267 : [1996] 9 Suppl. SCR 982;CConstruction of Park at Noida near Okhla BirdSanctuary Anand Arya v. Union of India (2011) 1 SCC744 : [2010] 15 SCR 783 – referred to.

8. Para 2 of the Executive Summary introducing the EIAreport acknowledges that the “surrounding land use of the airportDsite is predominantly forest land”. In the context of landenvironment, the EIA report records that “forest is thepredominant land use in the study area”. The EIA reportacknowledges that territories in Maharashtra fall within onekilometre from the proposed greenfield airport. Villages fallingEin Goa and Maharashtra within the 10 kilometre radius wereconsidered for assessment. Para 2.3.1 of Chapter II deals withland use. Land use/land cover statistics for 10 kilometre radiusfrom the Mopa airport in the State of Maharashtra have beentabulated. [Para 73][969-D-E]F9. The presence of “diverse system set as dense andopen forest, cultivated lands, sand dune vegetation, wet landsand human habitation” is noticed in para 4.6 dealing with thebiological environment. Annexure IX to the EIA report providesland use/land cover maps for both Goa and Maharashtra in thestudy area. The maps in Annexure IX cover forested areas inGMaharashtra and Goa within an aerial boundary of 10 kilometresfrom the project site. Annexure XI contains the hydro-geo-morphological maps for Goa and Maharashtra. [Para 74][970-A-B]

10. Information furnished in Form 1 is crucial to thepreparation of the ToR by the Expert Appraisal Committee (EAC).The EAC comprises of experts. It is constituted, among otherreasons, for the specific purpose of assessing the informationfurnished in Form 1 and preparing comprehensive ToR. There isan intrinsic link between the disclosures in Form 1 whichconstitute the basis for formulating the ToR and between theambit of the EIA report required by the ToR and the final EIAreport. The ToR guide the preparation of the EIA report. failureto disclose information in Form 1 impairs the functioning of theEAC in the preparation of the ToR and in consequence, leads topreparation of deficient EIA report. [Para 75][970-D-E]

11. EACs and State Expert Appraisal Committees (SEACs)are conferred with the authority to reject applications for the grantof an EC at the stage of scoping itself, prior to the preparation ofthe ToR. The application may be rejected on the basis of theinformation furnished by the project proponent in Form 1.Claiming an EC as matter of right merely because the EIA reporthas assessed parameters that were omitted in Form 1, bypassesthe authority of the EAC and SEAC to reject an application at thepreliminary stage and cannot be countenanced. The regulatoryauthority is required to assess the final documents submitted toit “strictly with reference to the ToR” and communicate to theEAC and SEAC any discrepancies between the EIA report andthe ToR. deficient ToR on the basis of the non-disclosure ofmaterial information in Form 1 impedes this process.[Para 76][970-F-H]

12. The failure on part of project proponent to disclosematerial information in Form 1 as stipulated under the 2006notification has cascading effect on the salient objective whichunderlies the 2006 notification. The 2006 notification representsan independent code with the avowed objective of balancing thedevelopment agenda with the protection of the environment. Anapplicant cannot claim an EC, under the 2006 notification, basedon substantial or proportionate compliance with the termsstipulated in the notification. The terms of the notification laydown strict standards that must be complied with by an applicant

Aseeking an EC for proposed project. The burden of establishingenvironmental compliance rests on project proponent whointends to bring about change in the existing state of theenvironment. Whereas, in the present case, there has thus beena patent failure on part of the project proponent to makemandatory disclosures stipulated in Form 1 under the 2006Bnotification, that must have consequences in law. There can beno gambles with the environment: ‘heads I win, tails you lose’approach is simply unacceptable; unacceptable if environmentalgovernance is to be preserved under the rule of law.[Para 77][971-A-D]

13. The report of the High Level Working Group (HLWG)dated 15 April 2013 recommends that there should be completeban on mining, quarrying and sand mining activity in theEcologically Sensitive Zone (ESZ). Similarly, it recommends thatno thermal power project should be allowed in ESZs and that allD‘red category’ industries should be strictly banned. Building andconstruction projects of 20,000 square metres and above shouldnot be allowed. However, all other infrastructure and developmentprojects, which have been recommended, should be subject tothe grant of ECs under Category ‘A’ projects of the 2006notification. [Para 82][974-B-C]E14. The glaring deficiency which emerges from the EIAreport is its failure to notice the existence of ESZs within bufferdistance of 10 kilometres of the project site. On one hand, theEIA report takes note of the HLWG report dated 15 April 2013.But, on the other hand, the EIA report ignores the existence ofFESZs within the study area on the ground that the project site isnot situated in an ESZ. The purpose and object of the EIA reportis to map areas, understand their vulnerabilities, and conduct astudy on scientific basis of the impact of the proposed projecton an ecologically sensitive terrain. The EIA report fails to meetGa classical requirement of administrative law: to take into accounta relevant consideration namely, that within the study area whichhas to be considered, there is the presence of ESZs. [Para 85][974-G-H; 975-A-B]

15. In deducing the impact of proposed activity on an ESZ,Hit is not sufficient to take recourse to generic assessment of

proposed activity on the ecology of the study area. The EIA reportmust factor in those specific features which make an areaecologically sensitive. These would encompass all aspects ofenvironmental concern which render the area ecologicallysensitive. This would include wet lands, water sources, waterbodies, costal zones, biospheres, mountains and forests. Thevulnerabilities of each of them must be studied as distinctivecomponents together with holistic analysis of their existence ina chain of bio-diversity. Where an area is ecologically sensitivebecause of the presence of flora or fauna requiring protection,that must be specifically adverted to and studied. The deficiencyof the EIA report emanates from its failure to notice that thepurpose of the study was not only to determine whether the projectsite is ecologically sensitive. Confining itself to this aspect, theEIA report failed to consider crucial and relevant consideration.[Para 86][975-C-E]

16. Since the entire study area within radius of 10kilometres was considered for monitoring air quality, the Courtaccepts the submission that the location of the sampling pointswithin Goa did not preclude the monitoring of air quality withinthe study area. The impact of greenfield airport on the closingof natural channels which feed the water bodies has not beenscientifically mapped or studied. While monitoring the noise qual-ity, the EIA report covered radius of 10 kilometres. In order toobtain baseline data of noise quality, nine monitoring stations werechosen in the study area. While it is true that all nine locationswere situated in the State of Goa, one (Patradevi) was situated onthe border shared between Goa and Maharashtra. The EIA re-port contains an impact study and the study area covered includesboth the States. The collection of both primary and secondarydata of fauna in the EIA report was perfunctory. The primary studyis not based on data collected from acknowledged sources suchas the Zoological Survey of India, Wildlife Institute of India andMinistry of Earth Sciences as required under the Guidancemanual. Similarly, as regard avi-faunal studies, the EIA reportlists 385 plant species in table 4.15 of Chapter IV, titled ‘De-scription on Environment’. It also states that 86 species of birds

ABC

[2019] 5 S.C.R.

Awere observed during the survey in the 10 kilometre study areafrom the proposed site. According to the Guidance manual, sec-ondary data has to be collected within an aerial distance of 15kilometres for the parameters specifically specified in column9(III) of Form 1 of the 2006 notification. This was evidently notdone. careful avi-faunal study was necessary, having due re-Bgard to the fact that the proposed project is an airport site. Bear-ing in mind the profile of airport operations, foraging or nestingby bird species in and around the airport must not be discarded.It must be accepted that in project involving the setting up ofan airport, the EIA report must deal with the impact of the air-Cport on birds and likewise the impact of birds on aircraft opera-tions. [Paras 88, 90 and 94][976-C-D; G-H; 977-A; 979-A-E]

17. The EIA report ought to have scrutinized the numberof trees, their nature and longevity. Issues such as the extent towhich the trees or some of them were capable of beingDtransplanted had to be considered in the EIA report. The locationof the trees is also significant. In given case, if the trees appearin clusters or in dense formation in segments of the projectsite, it would be necessary to determine whether felling all ofthem was necessary for the project to be implemented.[Para 97][981-G-H; 982-A-B]E

18. There was glaring omission of the factual existence ofas many as 54,676 trees in the EIA report. For projectproponents, the environment may not possess human voice.But the purpose of prescribing an EIA report is precisely toundertake baseline study on all aspects of the environment andFto anticipate the impact of projected activity on the environment.Ignoring any component of the environment amounts to seriousdereliction of duty which detracts from the rule of law in mattersof environmental governance. [Para 98][982-E-F]

19. The order of the Principal Chief Conservator of ForestsGmandating transplantation, where possible, and the plantation often trees for every tree felled provides measure of rectification.But there is reason why issues pertaining to vegetational covermust be taken seriously in the EIA process. The formula ofplanting set number of trees for every existing tree felled must

be alive to the fact that the survival of new plantations is repletewith uncertainty. The survival of transplanted trees is equally amatter of uncertainty. Though the development of infrastructuremay necessitate the felling of trees, the process stipulated underthe 2006 notification must be transparent, candid and robust. Aregulatory regime for environmental governance is based on thehypothesis that all stakeholders will act with rectitude. Hidingsignificant components of the environment from scrutiny is notan acceptable modality to secure project approvals. There was aserious lacuna in regard to disclosures and appraisal on this aspectof the controversy. [Para 99][982-F-H; 983-A-B]

20. Public consultation involves process of confidencebuilding by giving an important role to those who have plausiblestake. It also recognizes that apart from the knowledge which isprovided by science and technology, local communities have aninnate knowledge of the environment. The knowledge of localcommunities is transmitted by aural and visual traditions throughgenerations. By recognizing that they are significantstakeholders, the consultation process seeks to preserveparticipation as an important facet of governance based on therule of law. Participation protects the intrinsic value of inclusion.[Para 101][983-E-F]21. Public consultation cannot be reduced to mereincantation or procedural formality which has to be completedto move on to the next stage. Underlying public consultation isthe important constitutional value that decisions which affect thelives of individuals must, in system of democratic governance,factor in their concerns which have been expressed after obtainingfull knowledge of project and its potential environmental effects.Apart from the intrinsic value of public consultation, it serves aninstrumental function as well. The purpose of ascertaining theviews of stakeholders, is to account for all the material concernsin the design of the proposed project or activity. For this reason,the process of public consultation involves several importantstages. The Pollution Control Board is under mandate to forwardthe proceedings to the regulatory authority. The project proponentmust address all material environmental concerns and make

Aappropriate changes in the draft EIA and EnvironmentManagement Plan (EMP). The project proponent may evensubmit supplementary report to the draft EIA. Each of theseelements is crucial to the design features of the 2006 notification.A breach will render the process vulnerable to challenge on theground that: (i) significant environmental concerns have not beenBtaken into account; (ii) there was an absence of full disclosurewhen the EIA report was put up for consultation; and (iii) concernswhich have been expressed by persons affected by the projecthave not been adequately dealt with or analysed. [Paras 102 and103][984-D-H]

CUtkarsh Mandal v. Union of India (2009) SCC OnlineDel 3836 – relied on.

22. Crucial objections and environmental concerns whichwere raised during the consultative process were reduced to asingle issue by the project proponent before the EAC: the needDfor employment opportunities. The project proponent failed inits duty to inform the EAC. The record does not indicate criticalappraisal or analysis by the EAC. The EAC was duty bound toapply its mind to the environmental concerns raised bystakeholders. The duty of the project proponent to place fairlyEall the environmental concerns raised during the public hearingis the crucial link in the appraisal by the EAC. The Minutes ofthe meeting indicate that there was no fair and complete disclosureof the objections which were raised during the public hearingbefore the EAC. There is evidently failure in the process ofapplying and implementing the norms laid down in the 2006Fnotification in this regard. [Para 107][986-F-H; 987-A-B]

23. Appraisal by the EAC is structured and defined by the2006 notification. The process of appraisal is defined to mean “adetailed scrutiny” by the EAC of the application and otherdocuments like the EIA report and the outcome of the publicGconsultation, including the public hearing proceedings, submittedby the applicant to the regulatory authority for the grant of anEC. The EAC is under mandate to conduct the process ofappraisal in “a transparent manner”. On the conclusion of theseproceedings, the EAC has to make “categorical

recommendations” to the regulatory authority either for: (i) thegrant of prior environmental clearance on stipulated terms andconditions; or (ii) the rejection of the application. Therecommendations made by the EAC to the regulatory authoritymust be based on “reasons”. [Para 108][987-B-D]

24. The analysis of the EIA report is sketchy andperfunctory and discloses an abdication of its functions by theEAC. The requirement that the EAC must record reasons,besides being mandatory under the 2006 notification, is ofsignificance for two reasons: (i) The EAC makes arecommendation to the regulatory authority in terms of the 2006notification. The regulatory authority has to consider therecommendation and convey its decision to the project proponent.The regulatory authority, as para 8(ii) provides, shall normallyaccept the recommendations of the EAC. Where it disagrees, itwould request reconsideration, stating the reasons for itsdisagreement. In turn, the EAC will consider the observationsof the regulatory authority and furnish its views within stipulatedperiod; and (ii) The grant of an EC is subject to an appeal beforethe NGT under Section 16 of the NGT Act 2010. The reasonsfurnished by the EAC for its recommendation are basic link inthe ultimate decision of the regulatory authority. They constitutesubstantive material which will be considered by the Tribunalwhen it considers challenge to the grant of an EC.[Para 111][989-H; 990-A-D]

25. The EAC refers to the delay in acquisition proceedings,a larger public interest and the fact that the project proponent“has not concealed facts and circumstances”. Each one of thereasons which has weighed with the EAC betrays lack ofcomprehension of the true nature of its function under the 2006notification. The EAC has failed to consider relevantcircumstances bearing on the environmental impact of the projectand has instead considered circumstances extraneous to itsfunction. That the project proponent, according to the EAC, hasnot concealed facts and circumstances is not reason enough towarrant grant of an EC. Moreover, even this hypothesis isincorrect. There is no analysis of the EIA report. The EAC hasfailed to answer to the call to its expertise. [Para 112][927-E-G]

A26. Deliberate concealment or the submission of false ormisleading information or data material for screening, scoping,appraisal or decision on the application makes it liable forrejection. That the project proponent must submit all informationand data without concealing relevant features is basic hypothesisand expectation of the 2006 notification. The EAC has not appliedBits mind at all to the environmental concerns raised in relation tothe project nor do its reasons indicate an appraisal of thoseconcerns by evaluating the impact of the project. [Para 113][991-B-D]

27. The EAC is an expert body. It must speak in the mannerCof an expert. Its remit is to apply itself to every relevant aspectof the project bearing upon the environment. It is not bound bythe analysis which is conducted in the EIA report. It is duty boundto analyse the EIA report. Where it finds it deficient it can adoptsuch modalities which, in its expert decision-making capacity,Dare required. The reasons which are furnished by the EACconstitute live link between its processes and the outomce ofits adjudicatory function. In the absence of cogent reasons, theprocess by its very nature, together with the outcome standsvitiated. [Para 114][991-D-F]E28. The EAC, as an expert body, has to scrutinize all relevantaspects of the project or activity proposed, including its impacton the environment. In taking that decision, the EIA report is aninput for its analysis. The scrutiny and appraisal has to beundertaken by the EAC as an expert body and its reasons mustreflect that this has been done. As the Minutes indicate, the non-Fapplication of mind by the EAC is evident with reference to thepresence of 15 ESZs in the study area. The EAC notes that theproject is outside the ESZ delineated by the KasturiranganCommittee. In the absence of critical analysis, the EAC failedin discharging its duties under the 2006 notification. TheGrecommendations of the EAC furnish guide for the MoEFCC.Indeed, the 2006 notification stipulates that the recommendationsof the EAC would normally be accepted. Consequently, failureof due process before the EAC, as in the present case, must leadto the invalidation of the EC. [Para 116][992-B-E]

29. In the present case, there was failure to follow bindingnorms under the 2006 notification. There were serious flaws inthe decision-making process. Relevant material was excludedfrom consideration and extraneous circumstances were borne inmind. The EAC as an expert body abdicated its obligations tomake an expert determination based on reasons. The NationalGreen Tribunal (NGT) as an adjudicatory body failed to exercisethe jurisdiction entrusted to it under Section 16(h) read withSection 20 of the NGT Act 2010 by merely deferring to thedecision to recommend and grant an EC. The parameters in regardto the existence of substantial questions of law have hence beenestablished in the classical or conventional sense of thatexpression. [Para 125][998-D-F]

Vellore Citizens Welfare Forum v. Union Of India (1996)5 SCC 647 : [1996] 5 Suppl. SCR 241; M Mehta vKamal Nath (1997) 1 SCC 388 : [1996] 10 Suppl. SCR12; M Mehta v. Union of India (1997) 2 SCC 353 :[1996] 10 Suppl. SCR 973 ; P Pollution Control Boardv. Prof M V Nayudu (Retd.) (1999) 2 SCC 718 : [1999]1 SCR 235; Narmada Bachao Andolan v. Union ofIndia (2000) 10 SCC 664 : [2000] 4 Suppl. SCR 94 ;Indian Council for Enviro Legal Action v Union ofIndia (2011) 8 SCC 161 : [2011] 9 SCR 146 ; SaveMon Region Federation v. Union of India 2013 (1) AllIndia NGT Reporter 1; Shreeranganathan K P v. Unionof India 2014 ALL (I) NGT Reporter (1) (SZ) 1 ;Lafarge Umiam Mining Private Limited v. Union ofIndia (2011) 7 SCC 338 : [2011] 7 SCR 954; MantriTechzone Pvt. Ltd. v Forward Foundation (2019) 4SCALE 218 ; Sir Chunilal v. Mehta and Sons, Ltd. vCentury Spinning and Manufacturing [1962] 3 Suppl.SCR 549 – referred to.

30. The environmental rule of law provides an essentialplatform underpinning the four pillars of sustainabledevelopment— economic, social, environmental, and peace. Itimbues environmental objectives with the essentials of rule oflaw and underpins the reform of environmental law and

Agovernance. The environmental rule of law becomes priorityparticularly when it is acknowledged that the benefits ofenvironmental rule of law extend far beyond the environmentalsector. While the most direct effects are on protection of theenvironment, it also strengthens rule of law more broadly,supports sustainable economic and social development, protectsBpublic health, contributes to peace and security by avoiding anddefusing conflict, and protects human and constitutional rights.Similarly, the rule of law in environmental matters is indispensable“for equity in terms of the advancement of the SustainableDevelopment Goals, the provision of fair access by assuring aCrights-based approach, and the promotion and protection ofenvironmental and other socio-economic rights.”[Para 128][999-A-D]31. The rule of law requires regime which has effective,accountable and transparent institutions. Responsive, inclusive,Dparticipatory and representative decision making are keyingredients to the rule of law. Public access to information is, insimilar terms, fundamental to the preservation of the rule of law.In domestic context, environmental governance that is foundedon the rule of law emerges from the values of Constitution. Thehealth of the environment is key to preserving the right to life asEa constitutionally recognized value under Article 21 of theConstitution. Proper structures for environmental decisionmaking find expression in the guarantee against arbitrary actionand the affirmative duty of fair treatment under Article 14 of theConstitution. [Para 140][1004-C-E]F

32. The 2006 notification must hence be construed as asignificant link in India’s quest to pursue the SustainableDevelopment Goals (SDGs). Many of those goals, besides beingaccepted by the international community of which India is part,constitute basic expression of constitutional value system. TheGfundamental principle which emerges from interpretation of the2006 notification is that in the area of environmental governance,the means are as significant as the ends. The processes of decisionare as crucial as the ultimate decision. The basic postulate of the2006 notification is that the path which is prescribed for

disclosures, studies, gathering data, consultation and appraisalis designed in manner that would secure decision making whichis transparent, responsive and inclusive. [Para 141][1004-F-G;1005-A-B]

33. The need for setting up new airport is matter ofpolicy. The role of the decision makers entrusted with authorityover the EIA process is to ensure that every important facet ofthe environment is adequately studied and that the impact of theproposed activity is carefully assessed. This assessment isintegral to the project design because it is on that basis that aconsidered decision can be arrived at as to whether necessarysteps to mitigate adverse consequences to the environment canbe strengthened. [Para 142][1005-C-E]

34. In the present case, there has been failure of dueprocess commencing from the non-disclosure of vital informationby the project proponent in Form 1. Disclosures in Form 1 arethe underpinning for the preparation of the ToR. The EIA report,based on incomplete information has suffered from deficienciesincluding the failure to acknowledge that within the study areacontemplated by the Guidance manual, there is presence ofESZs. [Para 143][1005-D-E]

35. The EAC, as an expert body abdicated its role andfunction by taking into account circumstances which wereextraneous to the exercise of its power and failed to notice facetsof the environment that were crucial to its decision making. The2006 notification postulates that normally, the MoEFCC wouldaccept the recommendation of the EAC. This makes the role ofthe EAC even more significant. The NGT is an adjudicatory bodywhich is vested with appellate jurisdiction over the grant of anEC. The NGT dealt with the submissions which were urged beforeit in essentially one paragraph. It failed to comprehend the truenature of its role and power under Section 16(h) and Section 20of the NGT Act 2010. In failing to carry out merits review, theNGT has not discharged an adjudicatory function which properlybelongs to it. [Para 144][1005-F-H]

36. Thus, neither the process of decision making nor thedecision itself can pass legal muster. Equally, as an area requiring

Abalance between development of infrastructure and theenvironment, appropriate directions should be issued by thisCourt, which would ensure that while the need for public projectas significant as an international airport is duly factored into thedecision making calculus, such development proceeds on aconsidered view of the importance of the prevailing state of theBenvironment. Bearing in mind the need to bring about awholesome balance between the development of infrastructureof an airport and the preservation of the environment, time bounddirections should be issued. [Para 145][1006-A-C]

37. It would be appropriate if the EAC is directed to revisitCthe conditions subject to which it granted its EC on the basis ofthe specific concerns which have been highlighted in thisjudgment. Such an exercise primarily is for the EAC to carry outin its expert decision making capacity. The EAC is entrustedwith that function as an expert body. The role of judicial review is

Dto ensure that the rule of law is observed. Hence, in exercise ofjurisdiction under Article 142 of the Constitution, EAC is directedto revisit the conditions for the grant of an EC. While doing so,it would be open to the EAC to have due regard to the conditionswhich were incorporated in the order of the NGT and to suitablymodulate those conditions in pursuance of the liberty which theECourt has preserved to it. To facilitate an expeditious decision,the EAC is directed to carry out this exercise in prescribedtime schedule during which period, the EC shall remainsuspended. After the EAC has formulated its views, they shallbe placed before this Court in Miscellaneous Application in the

Fpresent proceedings, so as to enable the Court to pass finalorders. The Miscellaneous Application may be filed either bythe State of Goa as the project proponent or by the MoEFCC.No other Court or Tribunal shall entertain any challenge to theultimate decision of the EAC and final orders thereon shall be

passed by this Court in the present proceedings. [Para 146]G[1006-C-G]

Case Law Reference

[1996] 9 Suppl. SCR 982 referred to[2010] 15 SCR 783 referred to

Para 15 (I)

referred to

Para 20 (iv)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12251of 2018.

From the Judgment and Order dated 21.08.2018 of the NationalGreen Tribunal, Principal Bench, New Delhi in Appeal No. 6 of 2018(earlier Appeal No. 1/2016/WZ)

WITH

Civil Appeal No.1053 of 2019.

K. K. Venugopal, AG, Atmaram N.S. Nadkarni, ASG, DattaPrasad Lawande, Adv. Gen. (Goa), Parag P. Tripathi, Sr. Adv.,Ms. Anitha Shenoy, Ms. Rashmi Nandakumar, Ritwick Dutta,Ms. K. V. Bharathi Upadhyaya, Ms. Kanika Sood, Sany Antony,Ms. Srishti Agnihotri, Pratap Venugopal, Ms. Surekha Raman, N.Prashant Kumar, Akhil Abraham Roy, Sahil Singh, Ashish KrishnanathKuncoliencer, Chinmayee Chandra, Rajesh Shivolker, S. Salvador Rebello,N. Prashant Nair (for M/s. K J John and Co.), Divya Prakash Pande, G.S. Makker, Niraj Kumar, S.S. Rebello, Ms. Suhasini Sen, SuchindranB. N., S. B. Narain, Sriram Srinivasan, Jai A. Dehadrai, Prashant Vaxish,Ms. Manisha Ambwani (for M/s. K J John and Co.), Ms. Aastha Mehta,Mahesh Agarwal, M. S. Ananth, Vanshi Rao, E. C. Agrawala, AnnamD. N. Rao, Advs. for the appearing parties.

934SUPREME COURT REPORTS

[2019] 5 S.C.R.

AThe Judgment of the Court was delivered byDR. DHANANJAYA Y. CHANDRACHUD, J.

Index

Introduction

BB Submissions

Scheme of the 2006 notification and the Guidance manual for Airports

C.1EIA process

CC.2Guidance manual for airports

DForests

EEcologically Sensitive Zones (ESZs)

FSampling Points

F.1Air Quality

F.2Water Quality

F.3Noise Quality

F.4Flora and Fauna

F.5Felling of Trees

GPublic Consultation

HAppraisal by the EAC

IThe appellate jurisdiction of the NGT: the requirementFof merits review

JEnvironmental Rule of Law

KDirections

AIntroduction

1. An appeal was filed before the Principal Bench of the NationalGreen Tribunal[1] at New Delhi challenging the grant of an EnvironmentalClearance[2] for the development of greenfield international airport atMopa in Goa. The NGT, by its judgment dated 21 August 2018 came to

1NGT

the conclusion that the present case “is not case where the projectcompromises with the environment”. While affirming the EC, the NGTcame to the conclusion that “further safeguards for environmentalprotection need to be incorporated”. The NGT, accordingly, proceededto formulate additional conditions, while affirming the grant of the EC.

2. Village Mopa is situated in North Goa, in close proximity to theinter-state boundary which the state shares with Maharashtra. The siteof the proposed airport lies at distance of 35 kilometres from Panaji,the capital of Goa. The village of Mopa is situated in Pernem taluka.The site for the development of the airport is situated on tabletopplateau which rises to height of 150 to 180 meters above mean sealevel and is surrounded by steep slopes. The soil is predominantly of alaterite character. The airport which presently serves the region is situatedat Dabolim, Goa.

3. Since the airport at Dabolim is saturated in terms of its capacityfor annual air traffic, the state government initiated process in 1997 tocommission studies and project reports for proposed international airport,which include the following:

(i) project report prepared by Engineers and Management Associates,Spain in 1997;

(ii) preliminary technical feasibility study prepared by the AirportsAuthority of India in May 1998;

(iii) final feasibility report for the proposed airport at Goa preparedby the International Civil Aviation Organisation, Montreal, Canadain August 2005;

(iv) Goa dual airport study prepared by the International Civil AviationOrganisation in August 2007;

(v) report of Six Member Committee chaired by the Chief Ministerof Goa in 2008 to “look into all aspects relating to construction ofan international airport at Mopa, Goa”; and

(vi) document styled as the “Airport Master Plan” dated 10 February2012, submitted to the Public Private Partnership[3] cell of theGovernment of Goa by Ammann & Whitney, USA envisaging:“consultancy services for preparation of master plan, preliminary

Aproject report, tender document and project management servicesfor the proposed greenfield airport and commercial/industrial andallied development near Mopa in the State of Goa”.

4. On 1 May 2000, the Government of India communicated itsapproval for the setting up of an airport at Mopa and for the closure ofBthe existing airport for civilian operations on the commissioning of thenew airport. Subsequently, on 1 July 2010, the earlier decision wasmodified to allow for the continuation of civilian aircraft operations atDabolim even after the commissioning of the new airport. The processof land acquisition commenced in 2008 under the Land Acquisition Act,1894. Originally, the land area anticipated for the development of theCproject was pegged at 4,500 acres. During the pendency of projectappraisals, the area required for the proposed airport stood reduced to2,271 acres.5. On 14 September 2006, the Government of India in the Ministryof Environment and Forests[4] issued notification[5] mandating prior ECDfor Category ‘A’ projects (specified in the Schedule) by the UnionGovernment and for Category ‘B’ projects at the state level by the StateLevel Environment Impact Assessment Authority[6]. Following the 2006notification, the MoEF placed an EIA Guidance Manual for Airports[7] inthe public domain in February 2010. The stages of scoping, publicEconsultation and appraisal, leading up to the grant of the EC for theproposed airport are governed by the express terms of the 2006notification.

6. In March 2011, the State of Goa, as the project proponentsubmitted Form 1 as stipulated in the 2006 notification to the MoEF. OnF8 March 2011, the State of Goa applied for Terms of Reference[8] to theMoEF. The ToR were finalized on 11 and 12 May 2011 by the ExpertAppraisal Committee[9] constituted under the 2006 notification. On 1June 2011, the MoEF issued the ToR for the preparation of theEnvironmental Impact Assessment[10] report. The ToR was valid for

G4 MoEF, later renamed as MoEFCC in 2014

5 S.O. 1533 (‘2006 notification’)6 SEIAA7 Guidance manual

8 ToR

9 EAC10 EIAH

period of two years until 31 May 2013. On 22 November 2012, theGovernment of Goa revised the project boundary by decreasing theproject area from 4,500 acres to 2,271 acres. At its meetings on 28 and29 January 2013, the EAC recommended an amendment to the ToR asrequested by the state government and granted an extension to the validityof the ToR until 31 May 2014. On 19 June 2013, the MoEF communicatedits approval for the amendment of the ToR and for the extension of itsvalidity.

7. On 3 October 2014, the state government floated tender forthe development of greenfield international airport project on PPPbasis. On 20 October 2014, the Directorate of Civil Aviation, Governmentof Goa submitted draft EIA report to the Goa State Pollution ControlBoard, requesting it to initiate steps to conduct public hearing. publichearing was conducted at the project site on 1 February 2015. TheEAC, at its meetings held on 9-11 March 2015, recommended anextension of the validity of the ToR for another year ending on 31 May2015.

8. On 20 May 2015, the State of Goa submitted final EIA reportto the MoEFCC, seeking the grant of an EC for the project. On 29 May2015, the MoEFCC communicated its approval for extending the validityof the ToR until 31 May 2015. Between 24 and 26 June 2015, the EAC,at its 149[th] meeting, deliberated on the EIA report and sought additionalinformation from the project proponent, inter alia, on:

“10 years data regarding rainfall in the area;

Drawing of traffic circulation plan for smooth circulation ofTraffic in the area;

Minimum 20% energy conservation measures should be adoptedin incorporating provisions for use of LED, star rated AC’s, and arevised energy conservation plan to be submitted;

Measures taken to comply with the CPCB guidelines formulatedfor noise pollution control in Airport area to be submitted.”

In the meantime, representation was submitted by the Federationof Rainbow Warriors, one of the appellants before this Court to theEAC. The EAC, at its 151[st] meeting held on 7-9 September 2015,

Adeliberated upon the representation and sought clarification from theproject proponent on the issues raised. On 28 September 2015, theproject proponent submitted its reply to the representation. The EAC, atits 152[nd] meeting on 20 October 2015, sought further clarification fromthe project proponent on the reply submitted by the Federation of RainbowWarriors. At that meeting, the EAC recommended the grant of an ECBfor the project.

9. On 28 October 2015, the MoEFCC, as the regulatory authorityunder the 2006 notification for Category ‘A’ projects, communicated itsapproval for the grant of an EC. Following the grant of the EC, thetender process which had been initiated on 3 October 2014 wasCconcluded on 26 August 2016. Consequent to the opening of the finalbids, technical scrutiny, evaluation coupled with pre-bid meetings,deliberations on the draft concession agreement and other required steps,GMR Goa International Airport Limited[11] was awarded the contract ona revenue sharing of 36.99 percent to the State of Goa. On 8 NovemberD2016, the concession agreement was executed between the Governmentof Goa and GGIAL for the development and operation of the airportwith the concession period of 40 years. Upon financial closure, thethree-year period for the construction of the airport commenced on 4September 2017. The target date for the commissioning of the firstphase of the project is 3 September 2020.E

10. The grant of the EC was challenged before the Western ZonalBench of the NGT[12] by the Federation of Rainbow Warriors. HanumanLaxman Aroskar also filed an appeal[13] before the Western Zonal Benchof the NGT. These appeals were subsequently renumbered[14] before thePrincipal Bench of the NGT at New Delhi. On 7 November 2017, theFNGT issued an ad-interim order restraining the cutting or felling of treesin the area designated as the site of the proposed airport. On 22November 2017, the order of restraint was modified on the statement ofthe Advocate General of Goa that the state shall not cut or fell any trees,nor allow it to take place without valid permission from the lawful authorityGfor fortnight thereafter in order to enable the appellants to pursue their

11 GGIAL

12 Appeal No. 61 of 2015

13 Appeal No. 1 of 2016

14 Appeal Nos. 5 and 6 of 2018

remedies. On 6 February 2018, the Deputy Conservator of Forestsgranted permission for felling 21,703 trees at the airport site. The appellateauthority under the Goa, Daman and Diu Preservation of Trees Act1984[15] dismissed the appeal on 7 March 2018.

11. On 8 March 2018, the High Court of Judicature at Bombay atits seat at Goa set aside the order of the Deputy Conservator of Forestsand remanded the matter to be heard by the Principal Chief Conservatorof Forests. On 2 April 2018, the Principal Chief Conservator of Forestsstipulated several conditions for the cutting and the felling of trees at thesite of the airport including: (i) enumeration of trees; and (ii) the plantationof ten times the number of trees felled. Upon being moved in PublicInterest Litigation[16], the High Court by its order dated 25 April 2018allowed the exercise of enumeration to be carried out. As result, 54,676trees were enumerated, including the 1,548 trees which had been felledearlier in terms of the order dated 6 February 2018 of the DeputyConservator of Forests. On 13 January 2018, the High Court issuedfinal directions in the PIL directing the State of Goa to approach theNGT seeking permission for felling and cutting trees. The state wasdirected to carry out the cutting and felling of trees only after priorpermission was granted by the NGT.12. Miscellaneous Application[17] was filed by the State of Goabefore the NGT on 2 July 2018 seeking permission for the felling oftrees. By its judgment dated 21 August 2018, the NGT disposed of boththe appeals and the Miscellaneous Application filed by the State ofGoa, upholding the EC and imposing additional conditions to safeguardthe environment. This Court has been informed that the felling of treeswas initiated on 3 September 2018 and completed on 14 January 2019.Assailing the judgment of the NGT, two appeals have been filed beforethis Court: one by Hanuman Laxman Aroskar[18] and the other by theFederation of Rainbow Warriors[19].

13. On 18 January 2019, notice was issued in the appeals and anorder of status quo was passed by this Court. The appeals were admittedfor hearing and final disposal.

15 Act 6 of 1984

16 PIL

17 MA No. 975 of 2018

18 Civil Appeal No. 12251 of 2018

19 Civil Appeal No. 1053 of 2019

AB Submissions

14. We have heard Ms Anitha Shenoy, learned counsel appearingon behalf of the appellants. Mr K K Venugopal, learned AttorneyGeneral[20] for India appeared on behalf of the State of Goa. Mr AtmaramS Nadkarni, learned Additional Solicitor General[21] of India appeared onBbehalf of the MoEFCC. Mr Parag P Tripathi, learned Senior Counseland Ms Aastha Mehta, learned counsel appeared on behalf of theConcessionaire.

15. Ms Anitha Shenoy, learned counsel appearing on behalf of theappellants urged that the EIA report which is carried out under the termsCof the 2006 notification is tool to evaluate the environmentalconsequences of proposed activity. The proposed international airport,being Category ‘A’ project, is governed by the second, third and fourthstages of scoping, public consultation and appraisal respectively envisagedunder the 2006 notification. In addition to the 2006 notification, theGuidance manual furnishes significant sign post in the procedureDenvisaged prior to the grant of an EC. The project proponent is requiredto submit Form 1 complete with relevant details of the proposed projectand the status of the environment. The ToR which is finalized by theEAC is founded on the disclosures which are made by the projectproponent. In this backdrop, the principal submissions urged by theEappellants before the Court are as follows:(i) There were material concealments by the project proponent infailing to disclose that as many as 54,676 trees were required to befelled. Form 1, which was submitted by the project proponent,was silent in regard to the number of trees required to be felled.FThe final EIA report, while dealing with the biological environmentin clause 2.1.5 contains the following statement:

“2.1.5 Biological environment

Construction phase

-Impacts (SignificanceMedium)GThe area acquired for proposed airport has only few trees, mainlybushes. These will be cleared during site preparation.”

Contrary to the above assertion is the statement contained in thecounter affidavit filed by the State of Goa:

20 AGH21 ASG

“..I say that the permissions which have been obtained for cuttingof 54,676 trees have been granted by the concerned authorities interms of the relevant statutory provisions and after laying downvarious conditions. I say that the context in which it was mentionedas sparse trees has to be seen from the huge area of the land.The land being 2133 acres, it would proportionally work out toabout 25 trees in an area of 1 acre, i.e. 4000 sq. metres., which isone tree in an area of about 160 sq. metres.”

The submission urged by the appellants is that the purpose of theEIA report is to form an assessment of the state of environment as itexists in reality. The project proponent is duty bound to make properdisclosure and the highest level of transparency is required. AccompanyingForm 1 is declaration of the project proponent that the EC will be liableto be rejected in the event of suppression or mis-statement of materialfacts. The State of Goa filed Miscellaneous Application before theNGT seeking permission to fell around 55,000 trees. This is clearindicator that the original statement by the project proponent in Form 1as well as in clause 2.1.5 of the EIA report that only few trees wererequired to be felled is factually incorrect;

(ii) There was concealment of Ecologically Sensitive Zones[22] in theState of Maharashtra. In terms of the Guidance manual, primarydata through measures and full surveys; and secondary data fromsecondary sources have to be collected. Primary data includesthe study area within 10 kilometres radius from the AerodromeReference Point[23] and covers one season other than the monsoon.Secondary data includes data collected within an aerial distanceof 15 kilometres for the parameters which are specificallymentioned in column 9 (III) of Form 1 of the 2006 notification andcovers one full year. In the present case, while furnishing detailsof ESZs falling within an aerial distance of 15 kilometres, the EIAreport stipulates that there were none in the State of Maharashtra.The State of Goa has also averred in its counter that there are noESZs within radius of 15 kilometres from the ARP and that thereare no reserve forests in that radius. After hearings had begunbefore the NGT, letter was addressed by the Principal ChiefConservator of Forests on 12 February 2018 to the Director of

942SUPREME COURT REPORTS

ACivil Aviation stating that list of reserved forests had been notifiedunder Section 20 of the Indian Forest Act 1927 in SawantwadiForest Division of Sindhudurg district in Maharashtra which wasobtained from the working plan of Sawantwadi Forest Division(2014-15 to 2023-24). The letter stated that there was no reservedforest notified under Section 20 of the Indian Forest Act 1927 inBthe Sawantwadi Forest Division, within radius of 15 kilometresfrom the ARP. On this aspect, it was urged on behalf of theappellants that restrictions come into force as soon as notificationunder Section 4 of the Indian Forest Act 1927 is issued. Under theForest Conservation Act 1980, any use of forest land for non-Cforest purposes requires prior permission of the Union Government,as elaborated in the judgment of this Court in TN GodavarmanThirumalpad v Union of India[24](“Godavarman”). The purposeof elucidating forest areas which fall within an aerial distance of15 kilometres from the project site is to enable an assessment tobe made of the impact of the project on forested areas. Failure toDmention forests in the State of Maharashtra was significantomission in the EIA report;(iii) Form 1 requires disclosure of the details of ESZs within an aerialdistance of 15 kilometres of the project boundary. The EIA reportrests content in stating that Pernem taluka is not included in anEESZ by the High Level Working Group[25] constituted under theChairmanship of Dr K Kasturirangan, Member (Science), PlanningCommission[26]. The project proponent, in response to the disclosuresrequired for areas which are important or sensitive for ecologicalreasons – wet lands, water sources or other water bodies, costalFzone, biospheres, mountains and forests, left the required detailsblank. In this context, it was urged by the appellants that thepurpose of the EIA report was not only to make an assessment ofthe project site but also of an area surrounding the project sitewithin an aerial distance of 15 kilometres. The HLWG recognized

that there were ESZs. In the present case, several villages areGsituated at bare distance of 1.5 kilometres from the project sitein Maharashtra. Yet, there was no disclosure of this fact and theEIA report merely recorded that Pernem taluka is not included inan ESZ;

24 (1997) 2 SCC 26725 HLWGH26 Kasturirangan report

(iv) The State of Maharashtra comprises nearly 40 per cent of thestudy area. Yet, there was no sampling of soil, air and water inMaharashtra. Sampling was carried out in 2011 and 2014-15 inGoa but no sampling site is situated in Maharashtra. In the absenceof baseline data generated with regard to environmental parametersin the State of Maharashtra surrounding the project site, the EIAreport suffers from gross deficiency; and

(v) The EIA report is grossly deficient in failing to notice wildlife inthe surrounding forests. On the contrary, the appellants have reliedon rapid survey conducted to assess the presence of variousmammals in the study area. Moreover, no avi-faunal study wasdone.

16. Apart from the above submissions, Ms Shenoy has urged thatthe stages of public consultation and appraisal under the 2006 notificationare crucial to the assessment process. As far as the public consultationis concerned, the draft EIA is given before the hearing. During the courseof the public consultation, as many as 70 persons spoke, 1,150representations were received and 1,586 persons are stated to haveparticipated. The range of concerns expressed during the course of thepublic consultation covered variety of environmental issues. Amongstthem was the presence of perennial springs, the porous nature of thelaterite plateau where permeation is source of drainage for watercollection and the existence of cashew plantations on which the livelihoodof the local residents depends. Under the 2006 notification, the StatePollution Control Board[27] was required to collate the issues raised andthe response of the project proponent, before submitting requireddocuments to the EAC. Before the EAC, the project proponent in itspresentation, indicated that the objections were only about employmentopportunities. The project proponent clearly failed in its duty to appraisethe EAC about serious environmental concerns which were raised duringthe course of the public consultation.

17. On the aspect of appraisal, it has been urged that the minutesof the EAC meeting recommending the grant of an EC contain, as learnedcounsel for the appellants submitted, “not line on the EIA report”. TheEAC was required to state its reasons for recommending the grant of anEC in terms of the 2006 notification. The reasons must indicate that27SPCB

Athere was an appraisal by the EAC. In the present case, therecommendations of the EAC are based on vague considerations suchas: (i) larger public interest; (ii) non-concealment of the facts by theproject proponent; and (iii) the delay which had occurred in the process.The submission urged is that the EAC, as an expert body, has failed tofurnish reasons; acted on the basis of considerations which are notBgermane to the exercise of its functions and failed to apply its mind torelevant considerations including the environmental consequences of theproject.

18. Finally, it has been submitted that under Section 16(h) of theNational Green Tribunal Act 2010,[28] an appellate remedy is providedCagainst the order granting EC. By virtue of the provisions of Section 20,the NGT is under mandate to apply the principles of sustainabledevelopment, the precautionary principle and the polluter pays principlewhile passing any order, decision or making the award. An appeal liesbefore this Court under Section 22 from an order, decision or award ofDthe Tribunal on substantial question of law as specified in Section 100of the Code of Civil Procedure, 1908. The NGT, by virtue of itsadjudicatory authority under Section 16(h), is entrusted with duty toconduct merits review. The failure to consider materials on vitalissue constitutes substantial question of law as does the failure toconsider vital issues in the proceedings before it. In the present case, theETribunal has merely relied on the process conducted by the EAC and itsrecommendations, abdicating its own jurisdiction to conduct meritsreview.

19. Mr ANS Nadkarni, learned ASG appearing on behalf of theMoEFCC urged that the EIA report, besides dealing with environmentalFconcerns, addresses the impact of the project during both the phases ofconstruction and operation. The EAC is sourced from experts fromoutside the government. The airport project was conceived in 1996;consultants were appointed and three sites were initially short-listed. Itwas in 2011 that the ToR were sought by and given to the projectGproponent by the EAC. The draft EIA was placed for public consultationin 2014 and the final EIA report came to be submitted in 2015. The EACdeferred consideration of the EIA report on three occasions, includingamong them to consider the representation filed by the Federation ofRainbow Warriors.

28 NGT Act 2010H

20. Countering the submission of the appellants on the non-disclosure of reserved forests in Form 1, the learned ASG urged thefollowing submissions:

(i) The submission of the appellants was not raised either in the publichearing or in the grounds urged before the NGT, but was addressedin the written submissions filed before the NGT and when mapof the Surveyor General of India was produced;

(ii) Table 2.1.5 of the EIA report states that there is no reserved forestin the State of Maharashtra while delineating ESZs within 15kilometres from the project boundary. The report proceeded onthe plain meaning of the Indian Forest Act 1927 according to whichit is only upon the issuance of notification under Section 20 thata reserved forest is declared;

(iii) As matter of fact, within the area of 15 kilometres from theproject boundary in the State of Maharashtra, no reserved foreststands declared under Section 20(2) of the Indian Forest Act 1927;

(iv) The decision in Godavarman (supra) which adopts the ordinarymeaning of the expression ‘forest’ is site specific: the MoEFCCfollows it scrupulously even if there is notification under Section4 while considering the diversion of forest land for non-forest uses.The decision in Godavarman (supra) has also been explained inthe decision of this Court in Construction of Park at Noidanear Okhla Bird Sanctuary Anand Arya v Union of India[29](‘Okhla Bird Sanctuary’);

(v) The Guidance manual notices that environmental facets whichhave to be considered in relation to airport development arecategorized into seven groups: (a) land use; (b) water quality; (c)air quality; (d) noise pollution; (e) biological environment; (f) socio-economic changes and occupational health; and (g) solid wastemanagement. Baseline data of these environmental facets isascertained through primary data extending to one season whilesecondary data extending to year is gathered in terms of theGuidance manual and the distance specified in paragraph 4.1; and

A(vi) The EIA report records that the surrounding land use of the airportsite is predominantly forest land. Land use and land coverspecifically for 10 kilometre radius from the airport site inMaharashtra is also set out in Chapter II of the EIA report, whichindicates reference to the forest area. Annexure IX of the EIAreport incorporates land use with land cover maps, both for GoaBand Maharashtra in the 10 kilometre radius, which includes forestedareas within the State of Maharashtra; Annexure X of the EIAreport elucidates surface water bodies both in Maharashtra andin Goa in the radius of 10 kilometres while Annexure XI providesa hydro-geo-morphological map of Goa and Maharashtra. In otherCwords, it was urged that: (i) legally designated forest under theIndian Forest Act 1927 requires notification under Section 20;however, at the same time, (i?i) the EIA report contains cleardisclosure of the presence of forest areas in both the States ofGoa and Maharashtra within radius of 10 kilometres includingareas of dense forest.D

21. As regards the lack of sampling points in Maharashtra, thelearned ASG urged that while all the six sampling points for ambient airquality within 10 kilometres of the study area were in Goa, the air qualitywhich was being tracked was within the stipulated radius and was notconfined to the State of Goa. Similarly, in studying the water environment,Ethe ground water quality was measured at four locations in Goa within10 kilometres of the study area. As regards the monitoring of noise, ninesampling points were chosen within the State of Goa in accordance withthe Central Pollution Control Board[30] guidelines. The monitoring of noiseenvironment, both at the construction and operational phases, has similarly

Fbeen dealt with in the EIA report. The learned ASG urged that the choiceof the sampling locations was not arbitrary: though the sampling pointswere not in Maharashtra, data required was tracked across radius of10 kilometres from the ARP which also included the State ofMaharashtra.

G22. Dealing with the submission that no avi-faunal study was carriedout, it was urged that the EIA report specifically deals with this aspect inparagraph 4.6 of Chapter II which elucidates that 385 species of plantsbelonging to 88 plant families were documented and identified in the 10kilometres radial distance of the proposed project site. The study similarly

H30 CPCB

dealt with faunal diversity. As many as 86 species of birds were observedin the course of the avi-faunal study, which has been elucidated in table4.17 of the EIA report.

23. On the issue of ESZs, the learned ASG urged that there is aspecific reference to the Kasturirangan report, under the heading of‘Environmentally Sensitive Zones’ in Chapter IV of the EIA report. TheEIA report notices that the proposed airport site falls in Pernem talukaof North Goa which has not been included in the ESZs mapped by theHLWG. Annexure XVI of the EIA report is notification dated 13November 2013[31] of the MoEF, which contains list of villages (state,district and taluk-wise) identified by the HLWG. Paragraph 9 of the2013 notification which has been issued under Section 5 of theEnvironment (Protection) Act 1986 specifies the categories of new andexpansion projects which are prohibited in the ESZ. The proposed airportproject does not fall within the prohibited category. Moreover, since thesite of the proposed airport was not included in an ESZ, the prohibitionimposed by the 2013 notification had no application.

24. The learned ASG has also urged that the report of the HLWGon Western Ghats, submitted on 15 April 2013, stipulates certaindevelopment restrictions in ESZs which are as follows:

(i) complete ban on mining, quarrying and sand mining;

(ii) complete ban on thermal power projects while hydro power projectsmay be permitted subjected to conditions;

(iii) strict prohibition on ‘red category’ industries;

(iv) prohibition on building and construction projects of 20,000 squaremetres;

(v) All other infrastructure and development projects/schemes wouldbe subject to the grant of an EC as Category ‘A’ projects underthe 2006 notification; and

(vi) All development projects within 10 kilometres of the Western GhatsESZ and requiring ECs shall be regulated in accordance with the2006 notification.

Based on the above recommendation of the HLWG, it wassubmitted that the proposed airport project, which falls under Category

A‘A’ projects as delineated by the 2006 notification, is regulated by it anddoes not attract blanket prohibition.

25. The submission that the EAC had failed to apprise theenvironmental consequences of the project and should have applied itsmind to environmental concerns has been countered by relying on theBMinutes of the meetings conducted by the EAC:

(i) At its 149[th] meeting held on 26 June 2015, the EAC sought additionalinformation on six distinct aspects upon receiving the presentationby the project proponent;

(ii) At its 151[st] meeting held on 7-9 September 2015, the EAC tookCnote of representation filed by the Federation of Rainbow Warriorsand deferred further consideration of proposal for the grant ofEC. The project proponent was called upon to submit responseto the issues raised in the representation; and

(iii) At its 152[nd] meeting held on 20 October 2015, the EAC dealt withDclarifications issued by the project proponent to the concerns raisedby Rainbow Warriors and proceeded to recommend the projectfor the grant of an EC subject to the stipulated conditions.

On 28 October 2015, the EC was granted by the UnionGovernment. On the basis of the procedure which was followed by theEEAC, the following submissions have been urged:

(i) The application of mind by the EAC can be inferred and seen fromthe record;

(ii) Where considered necessary, the EAC sought information outsidethe EIA report;F

(iii) Having appraised the EIA report, the EAC imposed site specificconditions; and

(iv) The EAC consists of experts in the field and once it has beenshown that all relevant considerations were borne in mind, thisGCourt must give due deference to their view.

26. Mr. K K Venugopal, learned Attorney General, appearing onbehalf of the State of Goa, urged the following submissions:

(i) The proposed project for setting up an international airport at Mopahas been on the drawing board for nearly two decades.H

Successive studies were commissioned to assess the feasibility ofthe project from diverse sources, both within and outsidegovernment. This includes studies by private organisations as wellas reports by the Airports Authority of India, the International CivilAviation Organisation and the six member Committee constitutedby the state government under the auspices of the Chief Minister;

(ii) The setting up of an airport is an imminent need, since the existingairport at Dabolim has reached saturation point and is unable tocater to the growing volume of passenger traffic into Goa;

(iii) Tourism, it has been urged, is major source of revenue for thestate, with the banning of mining activities. balance must bedrawn between development and the environment. distinctionneeds to be drawn between overwhelming environmentalobjections which are not reversible and incapable of amelioration,and cases such as the present where the environmentalconsequences of project are capable of being countered bysuitable measures; and

(iv) Objections primarily based on defect in procedure should not besufficient to quash project conceived in public interest with vastbenefits for the development of the state and for the members ofthe travelling public. It was urged that there was no major envi-ronmental objection and the challenge to the EIA report is notsubstantial enough to overcome the interests of three million pas-sengers. The expected inflow is anticipated to reach 30 million in2030.

27. On the aspect of the felling of trees, the learned AG submittedthat following the order of the Bombay High Court, the Principal ChiefConservator of Forests passed an order on 2 April 2018 providing for: (i)enumeration of all trees covered by the project site; (ii) issuance of treefelling permission by the Deputy Chief Conservator of Forests; and (iii)plantation of ten times the number of trees felled under the supervisionof the forest department. Thereafter, when the High Court was movedin PIL, an order was passed on 13 June 2018 that the grant of permissionfor felling trees and the actual felling of trees will be carried out onlyafter the NGT granted permission in the pending proceedings. AMiscellaneous Application seeking permission for the felling of treeswas instituted before the NGT. In its final order dated 21 August 2018,

Athe NGT disposed of both the appeals as well as the MiscellaneousApplication. Moreover, the NGT has specifically dealt with the felling oftrees in the course of its distinction.

28. On behalf of the concessionaire, Mr Parag P Tripathi, learnedSenior Counsel and Ms Astha Mehta, learned counsel urged that uponBthe grant of an EC, concession agreement was executed by it with theState of Goa on 8 November 2016. Possession of the project site washanded over on 4 September 2017 and work commenced on 3 March2018. The indicative capital for Phase 1 of the development is Rs 1,900crores while the cost of the entire project is likely to be Rs 3,000 crores.The State of Goa has incurred total expenditure of Rs 240 crores forCland acquisition, rehabilitation, road widening, consultancy and other relatedaspects while the concessionaire has thus far incurred an expenditure ofRs 230 crores as on 18 January 2019. 14.06 per cent of the projectwork has been completed and manpower consisting of 1500 personshas been mobilized at the site together with plant and machinery.

29. The concessionaire has stated that it has tied up with aconsortium of banks and the servicing of the loans is linked to projectmilestones. As on 18 January 2019, the major works in progress include:(i) site preparation and earth works such as excavation and filling up ofrunways, taxiways, aprons and parking bays; (ii) PTB-foundations andEcolumn works; and (iii) excavation of the foundations for the ATC building.The concessionaire has submitted that apart from the plantation of tentrees for every single tree which has been felled, the forest departmentidentified about 500 trees for transplantation, which process is beingcarried out. In this background, it has been submitted that the projectshould not be interdicted. The concessionaire, it has been urged, isFcommitted to the completion of the project which accords with all theapprovals that have been received.

30. The rival submissions now fall for our consideration.

Scheme of the 2006 notification and the Guidance manualGfor Airports

C. 1 EIA Process

31. The objective of the EIA process is to ensure thatenvironmental and developmental concerns are appropriately balancedon the basis of the most accurate information available.

32. The Constitution (Forty-second Amendment) Act 1976, whichcame into force with effect from 3 January 1977, inserted Article 48A tothe Constitution which mandates that the State shall endeavor to protectand improve the environment and safeguard the forests and wildlife ofthe country. Article 51A(g) of the Constitution places correspondingduty on every citizen to protect and improve the natural environmentincluding forests, lakes, rivers and wild life and to have compassion forliving creatures. Following the decisions taken at the United NationsConference on the Human Environment held at Stockholm[32] in June1972 in which India participated, Parliament enacted the EnvironmentProtection Act 1986 to protect and improve the environment and preventhazards to human beings, other living creatures, plants and property.

33. On 27 January 1994, the MoEF, in exercise of the powersconferred by sub-section (1) and clause (v) of sub-section (2) of Section3 of the 1986 Act read with clause (d) of sub-rule 3 of rule 5 of theEnvironment (Protection) Rules, 1986, issued notification[33] imposingrestrictions and prohibitions on the expansion and modernisation of anyactivity or new project unless an EC was granted under the procedurestipulated in the notification. Under the notification, any personundertaking new project or expanding and modernizing an existingproject was required to submit an application to the Secretary, Ministryof Environment and Forests, New Delhi.

34. The application, which was to be made in accordance withthe Schedule provided in the notification was to be submitted with aproject report which included with it an EIA Report, an EnvironmentManagement Plan[34] and the details of public hearing which had beencarried out in accordance with guidelines issued by the CentralGovernment from time to time. Limited exceptions to the public hearingprocess and the submission of an EIA were provided.

35. MoEF as the Impact Assessment Agency[35] would then evaluatethe application and reports submitted. The IAA was empowered toconstitute committee of experts, if necessary, which would have aright of entry into and inspection of the site during or after thecommencement of the preparations relating to the project. The IAA

32 Stockholm Conference

33 S.O. 60(E) (‘1994 notification’)34 EMP35 IAA

Awould prepare set of recommendations based on the documentsfurnished by an applicant within 90 days from the receipt of thedocuments and decision would be conveyed to the applicant within 30days thereafter. The EC granted was valid for period of five years anda successful applicant was required to submit half-yearly reports to theIAA. Concealing factual data or submitting false or misleading informationBwould make the application liable for rejection and would lead to thecancellation of any EC[36] granted on that basis.

36. The 1994 notification was amended to reflect the growingprotection accorded to the environment.C37. On 14 September 2006, MoEF released another notification[37]in supersession of the previous notification.

38. The 2006 notification directed thus:

“…on and from the date of its publication the required constructionof new projects or activities or the expansion or modernization ofDexisting projects or activities listed in the Schedule to thisnotification entailing capacity addition with change in process andor technology shall be undertaken in any part of India only afterthe prior environmental clearance from the Central Governmentor as the case may be, by the State Level Environment ImpactEAssessment Authority, duly constituted by the Central Governmentunder sub-section (3) of section 3 of the said Act, in accordancewith the procedure specified hereinafter in this notification.”39. There are significant differences between the 1994 notificationand the 2006 notification. They are:

F(i) The 2006 notification categorically states that an EC must begranted by the regulatory authority prior to the commencementof any construction work or preparation of land;

(ii) The 2006 notification divides all projects into Category ‘A’ andCategory ‘B’ projects. The MoEFCC continues to regulate projectsGof large scale (Category ‘A’), while the SEIAA regulatecomparatively smaller projects (Category ‘B’);

(iii) Under the 1994 notification, an applicant was required to submit anapplication along with all reports including the EIA report at the

36 ECH37 S.O. 1533 (‘2006 notification’)

time of the application. Under the 2006 notification, prior to thepreparation of the EIA report by the applicant, the concernedauthority formulates comprehensive ToR on the basis of theinformation furnished by the applicant addressing all relevantenvironmental concerns. This forms the basis for the preparationof the EIA report. pre-feasibility report must also be submittedwith the application unless exempted in the notification. Under the2006 notification, draft EIA is first prepared and it is only afterthe public consultation process that final EIA report must beprepared addressing all the concerns raised during publicconsultation;

(iv) The 2006 notification stipulates the creation of regulatory bodyat the state level – SEIAA comprising members with expertise inthe field of environmental laws which is charged with grantingECs for Category ‘B’ projects;

(v) Under the 1994 notification, the final approval was granted by theDIAA. Under the 2006 notification, though the final regulatoryapproval is granted by the MoEFCC or the SEIAA, as the casemay be, the approval is to be based on the recommendations ofthe EAC functioning in the MoEFCC or the State Expert AppraisalCommittees[38] which are constituted for that specific purpose;

(vi) Under the 2006 notification, the application can be rejected by theregulatory authority on the basis of the recommendation of theEAC or the SEAC, as the case may be, at the preliminary stageitself, prior to public consultation; and

(vii) Under the 1994 notification, the public hearing process wasoverseen by the State Pollution Control Boards[39] which wouldconstitute public hearing panel for the purpose. Under the 2006notification, the public consultation process is expanded to includethe receipt of written comments from concerned persons. Thepublic hearing component was to be overseen by the SPCBs orthe Union Territory Pollution Control Committee[40].

A40. The salient objective which underlies the 2006 notification isthe protection, preservation and continued sustenance of the environmentwhen the execution of new projects or the expansion or modernizationof existing projects is envisaged. It imposes certain restrictions andprohibitions based on the potential environmental impact of projects unlessprior EC has been granted by the concerned authority. The EC is requiredBbefore any construction work, or preparation of land (except for securingthe land) is started on the project or activity listed in the Schedule to thenotification. The process stipulated under the 2006 notification isillustrated by the following flow-chart:

41. Based on the spatial extent of the potential impact and thepotential impacts on human health and natural and man-made resources,the 2006 notification categorizes all projects into Category ‘A’ andCategory ‘B’ projects. The MoEFCC in the Central Government andthe SEIAA at the state level constitute the regulatory authorities for thepurposes of the notification. Category ‘A’ projects require priorenvironmental clearance from the MoEFCC, based on therecommendation of the EAC constituted by the Central Government forthis purpose. Category ‘B’ projects will require prior environmentalclearance from the SEIAA, based on the recommendations of the SEAC.Where no SEIAA or SEAC has been constituted, Category ‘B’ projectsare treated as Category ‘A’ projects.

42. Once prospective site has been identified by the applicantfor the proposed project, all applications seeking an EC shall be made inthe prescribed Form 1 and Supplementary Form 1A[41], if applicable. Theapplication must be submitted prior to the commencement of anyconstruction activity, or preparation of the land at the site. pre-feasibilityreport must also be submitted with the application except in the cases ofconstruction projects in item 8 of the Schedule, for which conceptualplan must be submitted. The significance of the information furnished bythe applicant in Form 1 shall be explored shortly.

43. The process to obtain environmental clearance as stipulatedby the notification for new projects[42] comprises maximum of fourstages, all of which may not apply depending on the specific casestipulated under the notification:

1)Screening;

2)Scoping;

3)Public Consultation; and

4)Appraisal.

41 Only for construction projects listed under item 8 of the Schedule

42 Applications for EC for expansions or modernization of existing units as stipulatedunder the notification are made in Form 1 and shall be considered by the EAC or theSEAC within 60 days, which will decide on the due diligence necessary including thepreparation of the EIA and public consultations and the application shall be appraisedaccordingly for the grant of environmental clearance.

A44. SCREENING – This step is restricted only to Category ‘B’projects. This stage entails an examination of whether the proposed projector activity requires further environmental studies for the preparation ofan EIA for its appraisal prior to the grant of an EC. Those projectsrequiring an EIA are further categorized as Category ‘B1’ projects andremaining projects are categorized as Category ‘B2’ projects. CategoryB‘B2’ projects do not require an EIA. The categorization is in accordancewith the guidelines issued in this regard by the MoEFCC from time totime.

45. SCOPING – At this stage, the EAC or the SEAC, as the casemay be, formulates detailed and comprehensive Terms of ReferenceCwhich address all relevant environmental concerns for the preparationof the EIA. Amongst other things, the information furnished by theapplicant in Form 1/Form 1A along with the proposed ToR by the applicantform the basis for the preparation of the ToR. The ToR must be conveyedto the applicant within 60 days of the receipt of Form 1, failing which,Dthe ToR proposed by the applicant shall be deemed as approved.Significantly, applications for EC may be rejected by the regulatoryauthority at this stage itself on the recommendation of the EAC or theSEAC, as the case may be, and the decision along with reasons is to becommunicated to the applicant within 60 days of receipt of application.

E46. PUBLIC CONSULTATION – Prior to this stage, Summary EIA isprepared in the format given in Appendix IIIA on the basis of the ToRfurnished to the applicant. This stage involves the process “by which theconcerns of local affected persons and others who have plausible stakein the environmental impacts of the project or activity are ascertainedwith view of taking into account all the material concerns in the projectFor activity design as appropriate.” The detailed procedure is stipulated inAppendix IV. Subject to the exceptions provided in the 2006 notification,all Category ‘A’ and Category ‘B1’ projects shall undertake the publicconsultation process.

This stage comprises two components:G(i) public hearing at the site or in its close proximity – district-wiseto be carried out in the manner prescribed in Appendix IV; and

(ii) Procurement of written responses from concerned personshaving plausible stake in the environmental aspects surroundingthe project.

47. The State Pollution Control Board[43] or the Union TerritoryPollution Control Committee[44] is charged with conducting the publichearing in the manner stipulated in Appendix IV and forwarding theproceedings to the regulatory authority within 45 days of request fromthe applicant. The regulatory authority is empowered to engage anotherpublic agency or authority to carry out the process within further periodof forty-five days in case the SPCB or the UTPCC does not adhere tothe prescribed time period stipulated in the notification. The public hearingshould be arranged in “systematic, time bound and transparent manner”to ensure the “widest possible public participation at the project site(s)or in its close proximity District-wise”. The public hearing proceeding isfilmed and copy of the video is submitted to the concerned regulatoryauthority.48. Within seven days of receiving written request to initiatethe public consultation process, the SPCB or the UTPCC shall place theSummary EIA and the application on their website and invite responses.The concerned authority may also make use of other appropriate mediain addition to publication on their website to ensure wide publicity of theproject. On written request from any concerned person, the authoritywill make available hard copy of the Draft EIA for inspection at anotified place during office hours till the date of the public hearing. Aduty is placed on the authority to forward all responses and commentsreceived at this stage to the applicant through the quickest availablemeans.

49. After the public consultation process, the applicant is dutybound to address all the material environmental concerns expressed duringthe process and make appropriate changes to the Draft EIA and EMP.The applicant shall then forward the final EIA report to the regulatoryauthority to initiate the next stage. Alternatively, the applicant may submita supplementary report to the Summary EIA and EMP.

50. APPRAISAL - This stage involves detailed scrutiny by the EACor the SEAC of all the documents submitted by the applicant for the

43 SPCB

44 UTPCC

Agrant of EC. The appraisal is carried out in transparent manner in aprocess to which the applicant shall be invited for furnishing clarificationin person or through an authorized representative. Appendix V stipulatesthat the following documents are also submitted to the regulatory authority:

(i) Final EIA Report

(ii) copy of the video tape or CD of the public hearing proceedings

(iii) copy of the final layout plan

(iv) copy of the project feasibility report.

C51. The regulatory authority must examine the documents “strictlywith reference to the ToR” and communicate any inadequacy to theEAC or the SEAC, as the case may be, within 30 days of receipt of thedocuments. Within sixty days of the receipt of all the documents, theEAC or the SEAC, as the case may be, shall complete the appraisalDprocess as prescribed in Appendix V. Within the next fifteen days, theEAC or the SEAC shall make categorical recommendations to theconcerned regulatory authority to either grant the EC on the stipulatedterms and conditions or reject the application, together with reasons.The appraisal of projects which are not required to undergo the publicconsultation process or the submission of an EIA is to be carried out onEthe basis of the prescribed application Form 1 or Form 1A, as applicable.

52. The MoEFCC or the SEIAA shall thereafter consider therecommendations of the EAC or the SEAC and convey its decision tothe applicant within 45 days of receipt of the recommendations. Theregulatory authorities shall normally accept the recommendations ofFthe EAC or the SEAC, as the case may be. Where there is adisagreement, the regulatory authority shall ask for reconsideration ofthe recommendation within 45 days of the receipt of the recommendations.This decision shall be conveyed to the applicant. The EAC or the SEACshall then reconsider its recommendation within further period of 60days and make its recommendations to the regulatory authority. TheGregulatory authorities shall then take decision after considering theviews communicated to it and convey the decision to the applicant withinthe next 30 days.

53. If no decision is communicated to the applicant within thetime prescribed, the applicant may proceed according to therecommendation of the EAC or the SEAC recommending either thegrant or rejection of the EC. The decision of the regulatory authority andthe final recommendations of the EAC or the SEAC shall be publicdocuments on the expiry of the prescribed timelines. Deliberateconcealment and/or the submission of false or misleading informationmaterial to the steps involved in the grant of an EC make the applicationliable for rejection and cancellation of any EC granted on that basis.54. The 2006 notification embodies the notion that the developmentagenda of the nation must be carried out in compliance with normsstipulated for the protection of the environment and its complexities. Itserves as balance between development and protection of theenvironment: there is no trade-off between the two. The protection ofthe environment is an essential facet of development. It cannot be reducedto technical formula. The notification demonstrates an increasingawareness of the complexities of the environment and the heightenedscrutiny required to ensure its continued sustenance, for today and forgenerations to come. It embodies commitment to sustainabledevelopment. In laying down detailed procedure for the grant of anEC, the 2006 notification attempts to bridge the perceived gap betweenthe environment and development.

55. It is for this reason that the EAC and SEAC comprise expertsin the field of environmental law. The Chairperson of the EAC shall bea person who is an “outstanding and experienced environmental policyexpert or expert in management or public administration with wideexperience in the relevant development sector”. Appendix VI to the2006 notification stipulates that the EAC and the SEAC comprise 15members who are either ‘experts’ or ‘professionals’. Experts must haveatleast 15 years of relevant experience in the field or an advanced degree(PhD) with 10 years of relevant experience. Where experts are notavailable, professionals may be appointed to the EAC.

56. The EAC and the SEAC are charged with evaluating theinformation submitted by the applicant in Form 1/Form 1A and preparingcomprehensive ToR which guide the preparation of the EIA reports.Given that these bodies comprise experts in the field of environmental

Alaw, the recommendation of the EAC or the SEAC to grant EC to anapplicant or reject the application is normally accepted by the regulatoryauthority.

57. The regulatory authority at the state level (SEIAA) which ischarged with the approval or rejection of an application for EC comprisesBthree members who possess the qualifications in the field as prescribedin Appendix VI. Significantly, sub clause (7) of paragraph 3 of the 2006notification stipulates that all decisions of the SEIAA shall be unanimousand taken in meeting. Given the environmental consequences of aproposed project, no difference of opinion is provided for in the grant ofan EC at the state level. It is further mandated that the projectCmanagement submit half-yearly compliance reports to the regulatoryauthority in respect of the EC and conditions.

58. Under the 2006 notification, the process of obtaining an ECcommences from the production of the information stipulated in Form 1/Form 1A. Crucial information regarding the particulars of the proposedDproject is sought to enable the EAC or the SEAC to preparecomprehensive ToR which the applicant is required to address duringthe course of the preparation of the EIA. Some of the information soughtis produced thus:

(i) Construction, operation or decommissioning of the projectEinvolving actions, which will cause physical changes in the locality(topography, land use, changes in water bodies, etc.);

(ii) Use of natural resources for construction or operation of the Project(such as land, water, materials or energy, especially any resourceswhich are non-renewable or in short supply);F(iii) Use, storage, transport, handling or production of substances ormaterials, which could be harmful to human health or the environ-ment or raise concerns about the actual or perceived risks to hu-man health;

(iv) Production of solid wastes during construction, operation or de-Gcommissioning;

(v) Release of pollutants or any hazardous, toxic or noxious sub-stances to air;

(vi) Generation of noise and vibration, and emissions of light and heat;

(vii) Risks of contamination of land or water from releases of pollutantsinto the ground or into sewers, surface waters, groundwater, coastalwaters or the sea;

(viii) Risk of accidents during construction or operation of the project,which could affect human health or the environment; and

(ix) Environment sensitivity which includes, amongst other things, thefurnishing of the following details:

a. Areas protected under international and national legislation;

b. Ecologically sensitive areas; and

c. Areas used by protected, important or sensitive species of

lora or fauna.

59. Under the 2006 notification, the EC process is based on theinformation provided by the applicant in Form 1. That the informationprovided in Form 1 is crucial can be borne from the followingcircumstances:

(i) The EAC or the SEAC, as the case may be, formulates compre-hensive ToRs on the basis of the information furnished in Form 1which addresses all possible environmental concerns. It is on thebasis of the ToR, that further studies and the EIA are carried outon the impact of the proposed project on the environment;

(ii) At the appraisal stage, the regulatory authority examines thedocuments submitted by the applicant “strictly with reference tothe ToR” and communicates any inadequacy to the EAC or theSEAC;

(iii) Category B2 projects, which do not require scoping, are evaluatedby the SEAC on the basis of the information furnished by theapplicant in Form 1 alone;

(iv) The appraisal of all projects or activities which are not required toundergo public consultation, or submit an EIA report, shall be car-ried out on the basis of the prescribed application Form 1 andForm 1A as applicable; and

A(v) An application for extension of the validity of the EC for certainprojects is to be made by submitting revised Form 1 within thevalidity period.

60. The information provided in Form 1 serves as base uponwhich the process stipulated under the 2006 notification rests. An applicantBis required to provide all material information stipulated in the form toenable the authorities to formulate comprehensive ToR and enableconcerned persons to provide comments and representations at the publicconsultation stage. The depth of information sought in Form 1 is to enablethe authorities to evaluate all possible impacts of the proposed projectand provide the applicant an opportunity to address these concerns inCthe subsequent study. Missing or misleading information in Form 1significantly impedes the functioning of the authorities and the processstipulated under the notification. For this reason, any application madeor EC granted on the basis of defective Form 1 is liable to be rejectedimmediately. Clause (vi) of paragraph 8 of the notification provides thus:

D“Deliberate concealment and/or submission of false or misleadinginformation or data which is material to screening or scoping orappraisal or decision on the application shall make the applicationliable for rejection, and cancellation of prior environmentalclearance granted on that basis. Rejection of an application orEcancellation of prior environmental clearance already granted,on such ground, shall be decided by the regulatory authority, aftergiving personal hearing to the applicant, and following theprinciples of natural justice.”

C.2 Guidance manual for airports

F61. In February 2010, the MoEF brought out its Guidance manualfor airports. The need for sector specific manual arose because the2006 notification “re-engineered the entire EC process” under its earlieravatar of 1994 and new sectors were incorporated into the ambit of theEC process. The 2006 notification noted that as many as 39Gdevelopmental sectors require prior ECs. Sector specific manuals, it washoped, would bring about standardisation in the quality of appraisal andobviate potential inconsistencies between the work performed by SEIAAsand SEACs. Chapter IV of the Guidance manual, which is titled‘Description of Environment’, prescribes the study area for carrying outan EIA:

“Primary data through measurements and field surveys; andsecondary data from secondary sources are to be collected in thestudy area within 10 km radius from Aerodrome Reference Point(ARP). Primary data should cover one season other than monsoonand secondary data is to cover one full year. The basis for selectionof these criteria is that the aircraft gains height of 1000ft in thisarea below which noise and air pollution are generated maximumduring its take off stage. Secondary data should be collected within15 km aerial distance for the parameters as specifically mentionedat column 9 (III) of Form I of EIA Notification, 2006. Details ofsecondary data, the method of collection of secondary data, shouldbe furnished. Similarly, the proposed locations of monitoring stationsof water, air, soil and noise etc should be shown on the study areamap.”

62. Baseline data of environmental parameters which may beaffected by airport activities is collected through primary monitoring inthe study area and through secondary sources. The baseline data facilitatesthe evaluation of the predicted impact on environmental attributes in thestudy area by using scientific analysis and EIA methodologies. The objectis to also aid in the preparation of an EMP that would outline measuresfor improving environmental quality as well as retain the scope for futureexpansions in sustainable manner. The Guidance manual specificallyrequires collection of baseline data on the following: (i) land environment;(ii) water environment; (iii) air environment; (iv) noise environment; (v)biological environment; (iv) socio-economic environment and (vii) solidwaste.

The importance of collecting data on land environment isemphasised in the following extract:

“The terrain and hill slope, general slope and elevation of the area,the flow direction of streams and rivers, the water bodies and wetlands and the vegetation which together describe the physiographyof the land, will control the drainage pattern in the region. Landfarms, terrain, may get affected due to construction of airport. Itmay require large scale quarrying, dredging and reclamation, whichmay cause changes in the topography. This in turn may affect thedrainage pattern of the land / terrain. Baseline data pertaining to

Aexisting land at the proposed project area including the descriptionof terrain hill slopes, terrain features, slope and elevation are to becollected. Study of land use pattern, habitation, cropping pattern,forest cover, environmentally sensitive places etc., is to beundertaken by employing remote sensing techniques and groundtruthing. Ecological features of forest area; agricultural land;Bgrazing land; wildlife sanctuary land & national parks; migratoryroutes of fauna; water bodies; and drainage pattern including theorders of the drain and water sheds are to be described. Settlementsin the study area may be delineated with respect to ARP on thesite map. High rise buildings, industrial areas and zones, slaughterChouses and other features of flight safety importance may also bemarked on the map. Secondary data from Central Water BoardGOI; State ground water department, State Irrigation Departmentis to be obtained. Geomorphology of the region is to be clearlydelineated. Study of land use patterns, habitation, cropping pattern,and forest cover data is undertaken. Information on the locationDof water bodies, drainage, forests, surface travel routes withrespect to the project site is obtained within the study area andplotted on map. This map will show the natural slopes and thedrainage patterns, which give guideline while planning the drainsin the airport project. The drains help in discharge of storm waterEfrom the airport to avoid flooding and water logging in the projectarea.”

The study of the water environment is necessitated for thefollowing reasons:

“Ground water quality is important, as change in its chemicalparameters will affect the water quality. Airport activities duringconstruction / operation may have impact on ground water quality.Due to airport construction existing low areas may be reclaimedwith dredged spoil. The pollutants from dredged spoil are likely toenter into the ground water. This is likely to increase sedimentationof pollutants in airport area, which may migrate in time to theneighbouring ground water. Also runoff from solid waste if any,may percolate into the ground and may contaminate the groundwater. Hence, they need to be studied through primary surveysand secondary sources. Monitoring locations are to be finalizedas per CPCB norms which can represent the baseline conditions.”

On the aspect of air environment, the Guidance manual emphasises

that:

“Aircraft engines produce emissions that are similar to otheremissions resulting from any oil-based fuel combustion. These,like any exhaust emissions, can affect local air quality at groundlevel. It is emissions from aircraft below 1,000ft, above the ground(typically around 3km from departure or, for arrivals, around 6kmfrom touchdown) that are chiefly involved in influencing local airquality. These emissions disperse with the wind and blend withemissions from other sources such as emissions from domesticsources, emissions from industries and from surface transport.”

Local emissions attributed to aircraft operations at airports includeOxides of Nitrogen[45], Carbon Monoxide[46], Hydrocarbons[47], SulphurDioxide[48], and particulate matter (PM 10 and PM 2.5).

63. The Guidance manual brings into focus the biologicalenvironment. It acknowledges that airport operations may alter eco-systems, threaten endangered species and disturb the movement andbreeding patterns of wildlife. In this context, the collection of baselinedata on sensitive habitats and wild or endangered species in the projectarea is contemplated. The Guidance manual stipulates thus:

“Airport operations may cause change in local ecosystems,threaten endangered species, and disturb movements and breedingpatterns of local wildlife. Airports are located within variety ofsettings (both urban and rural), which support habitats and speciesof their own, some of which will have direct interaction with thoselocated on the airport and vice versa. Some local areas will alsobe designated for their nature conservation value. The biologicalenvironment of the airport should hence be seen as an integralcomponent of the wider landscape scale ecological network. Toaccomplish this,

Baseline data from field observations for various terrestrialand aquatic systems are to be generated.

Comparison of the data with authentic past records to under-stand changes is undertaken.

45 NOx

AEnvironmental components like land, water, flora and faunaare characterized and,

The impact of airport development on vegetation structure inand around project site is to be understood.

Data on sensitive habitats, wild or endangered species in theBproject area also is to be collected from Zoological Survey of India (ZSI),Botanical Survey of India (BSI), Wildlife Institute of India (WII) andMinistry of Earth Sciences. Wildlife symbolizes the functioning efficiencyof the entire eco system. Just as wild flora needs special treatment forpreservation and growth, wild fauna as well deserves specificCconservatory pursuits for posterity. As per Wildlife Act (1972), the variouswild animals are enlisted in the schedules of wildlife Act based on theintensity of threat to them as rare, endangered, threatened, vulnerableetc. Primary data on survey of the wild animals and birds in the studyarea is collected and identified with the classification into variousschedules taken from secondary data.”D

64. It is in the backdrop of the 2006 notification and the Guidancemanual that it becomes necessary to assess the process that was adoptedin the present case and its outcome.

ForestsE65. The essence of the challenge to the EC is two-fold:

(i) Form 1, which was filed by the project proponent, did notcontain any disclosure of the name or identity of forests within an aerialdistance of 15 kilometres. Item 2 under the heading of ‘EnvironmentalSensitivity’ requires clear disclosure of “areas which are important orFsensitive for ecological reasons – wet lands, water sources or otherwater bodies, coastal zone, biospheres, mountains and forests”; and

(ii) Table 2.1 of Chapter II of the EIA report delineates ESZswithin an aerial distance 15 kilometres from the project boundary. Forthe State of Goa, the table indicates the presence of forests but not ofGprotected forests. For the State of Maharashtra, Table 2.1 indicates thatthere were neither reserved nor protected forests within 15 kilometresfrom the project boundary.

66. The learned ASG made an earnest effort to support this byurging that reserved forest is one which is notified under Section 20 of

the Indian Forest Act 1927. The issuance of notification under Section4, it was urged, is indicative only of an intent and forest stands reservedunder sub-section (2) of Section 20 only upon the issuance of anotification. The ASG submitted that the reliance which the appellantsplaced on the Survey of India map is misplaced as, in the absence of anotification under Section 20, forest cannot be regarded as beingreserved.

In the alternative, it was urged that as matter of fact, the EIAreport (save and except Table 2.1) takes into account the forest coversurrounding the site and within the prescribed aerial distance. As regardsForm 1, the learned ASG submitted that at that stage, the project proponentmay not be expected to be aware of all the features of the environmentand hence the omission to refer to forests and other areas which aresensitive ecologically should be discountenanced.

67. We cannot gloss over the patent and abject failure of theState of Goa as the project proponent in failing to disclose wet lands,water sources, water bodies, biospheres, mountains and forests withinan aerial distance of 15 kilometres as required by Form 1. The disclosurein Form 1 constitutes the very foundation of the process which is initiatedon the basis of the information supplied by the project proponent.Following the disclosure in Form 1, ToR are formulated, and this leads tothe preparation of the EIA report. duty is cast upon the project proponentto make full, complete and candid disclosure of all aspects bearingupon the environment in the area of study. The project proponent cannotprofess an ignorance about the environment in the study area. The projectproponent is bound by the highest duty of transparency and rectitude inmaking the disclosures in Form 1.

68. There can be no manner of doubt that Form 1 is an importantingredient in the entire process envisaged under the 2006 notification.Hence, clause (vi) of para 8 of the 2006 notification provides that deliberateconcealment or submission of false or misleading information or datawhich is material to screening or scoping or appraisal or decision on theapplication shall make the application liable for rejection and lead to thecancellation of prior EC granted on that basis. The declaration whichis required of the project proponent is to similar effect.

69. We are unable to accept the submission that the disclosurerequired was of reserved forests comprehended within notification

Aunder sub-section (2) of Section 20 of the Indian Forest Act 1927. Form1 requires disclosure of areas which are important or sensitive forecological reasons, among them, being “forests”. The expression“forests” is used without reference to statutory or artificial definitionand must hence incorporate meaning which bears upon the ordinarydescription of the term. The expression “forests”, means forest asBcommonly understood, without reference to notification under the IndianForest Act 1927 or any other statutory enactment. Such an interpretationwill subserve the purpose of an EIA. The purpose is to ensure that allrelevant facets of the environment are noticed, that base-lines aredocumented, and that the potential impact of project or activity on theCenvironment is assessed. Forests are forests without reference torecognition in statutory form devised for specific purpose.70. The need to construe the expression ‘forests’ in broad andgeneric sense was emphasized in the decision of this Court inGodavarman (supra). This Court held:D“4. The Forest (Conservation) Act, 1980 was enacted with viewto check further deforestation which ultimately results in ecologicalimbalance; and therefore, the provisions made therein for theconservation of forests and for matters connected therewith, mustapply to all forests irrespective of the nature of ownership orEclassification thereof. The word ‘forest’ must be understoodaccording to its dictionary meaning. This description covers allstatutorily recognised forests, whether designated as reserved,protected or otherwise for the purpose of Section 2(i) of the Forest(Conservation) Act. The term ‘forest land’, occurring in Section2, will not only include ‘forest’ as understood in the dictionaryFsense, but also any area recorded as forest in the governmentrecord irrespective of the ownership.”

71. Subsequently, in Okhla Bird Sanctuary (supra), this Courtexplained the position:

“Almost all the orders and judgments of this Court defining “forest”and “forest land” for the purpose of the FC Act were rendered inthe context of mining or illegal felling of trees for timber or illegalremoval of other forest produce or the protection of national parksand wildlife sanctuaries.”

In Okhla Bird Sanctuary (supra), trees had been planted withan intent to set up an urban park. This Court found it “inconceivable”that those trees would turn into forest “within span of ten to twelveyears and the land, which was for agricultural use would be convertedinto forest land”. Hence, the decision was based on factuallydistinguishable situation. The decision emphasises that in construing theterm forest, courts must have due regard both to text and to context.

72. In the context of the 2006 notification and the underlyingpurpose of facilitating an EIA report, the expression ‘forests’ must receiveits ordinary and natural connotation. The effort must not be o overlookand destroy forests but to notice and protect them.

73. Having said this, we must delve into the alternate submissionthat the EIA report does, as matter of fact, consider the prevalence offorested areas both in Goa and in Maharashtra within the study area. Inthis context, para 2 of the Executive Summary introducing the EIA reportacknowledges that the “surrounding land use of the airport site ispredominantly forest land”. In the context of land environment, the EIAreport records that “forest is the predominant land use in the study area”.The EIA report acknowledges that territories in Maharashtra fall withinone kilometre from the proposed greenfield airport. Villages falling inGoa and Maharashtra within the 10 kilometre radius were consideredfor assessment. Para 2.3.1 of Chapter II deals with land use. Land use/land cover statistics for 10 kilometre radius from the Mopa airport inthe State of Maharashtra have been tabulated. Among them is thefollowing:

Sr.No.DescriptionArea (Sq.M.)Area (Ha) 5 Forest-Tree Clad 66341913.84 6634.19 Area- Dense

Similarly para 4.4 in Chapter IV, which is titled ‘description ofenvironment statistically’, provides thus:

“Surrounding land use of the airport site is predominantly forestland. The northern and eastern side of site is reserve forest areas,whereas western side is barren and village cultivated land. Theexisting land use plan is attached as Annexure IX.”

A74. The presence of “diverse system set as dense and openforest, cultivated lands, sand dune vegetation, wet lands and humanhabitation” is noticed in para 4.6 dealing with the biological environment.Annexure IX to the EIA report provides land use/land cover maps forboth Goa and Maharashtra in the study area. The maps in Annexure IXcover forested areas in Maharashtra and Goa within an aerial boundaryBof 10 kilometres from the project site. Annexure XI contains the hydro-geo-morphological maps for Goa and Maharashtra.75. Though the EIA report adverts to the presence of forestswithin the study area in Goa and Maharashtra, we have to considerwhether this by itself warrants the grant of an EC inspite of the fact thatCthere has been patent failure on part of the project proponent to makea transparent and candid disclosure of material facts in Form 1.Information furnished in Form 1 is crucial to the preparation of the ToRby the EAC. The EAC comprises of experts. It is constituted, amongother reasons, for the specific purpose of assessing the informationDfurnished in Form 1 and preparing comprehensive ToR. There is anintrinsic link between the disclosures in Form 1 which constitute thebasis for formulating the ToR and between the ambit of the EIA reportrequired by the ToR and the final EIA report. The ToR guide thepreparation of the EIA report. failure to disclose information in Form1 impairs the functioning of the EAC in the preparation of the ToR andEin consequence, leads to preparation of deficient EIA report.

76. The submission that the EIA report deals with the prevalenceof forested areas and warrants the grant of an EC cannot be acceptedfor yet another reason. EACs and SEACs are conferred with theauthority to reject applications for the grant of an EC at the stage ofFscoping itself, prior to the preparation of the ToR. The application maybe rejected on the basis of the information furnished by the projectproponent in Form 1. Claiming an EC as matter of right merely becausethe EIA report has assessed parameters that were omitted in Form 1,bypasses the authority of the EAC and SEAC to reject an application atGthe preliminary stage and cannot be countenanced. The regulatoryauthority is required to assess the final documents submitted to it “strictlywith reference to the ToR” and communicate to the EAC and SEACany discrepancies between the EIA report and the ToR. deficient ToRon the basis of the non-disclosure of material information in Form 1impedes this process.

77. The failure on part of project proponent to disclose materialinformation in Form 1 as stipulated under the 2006 notification has acascading effect on the salient objective which underlies the 2006notification. The 2006 notification represents an independent code withthe avowed objective of balancing the development agenda with theprotection of the environment. An applicant cannot claim an EC, underthe 2006 notification, based on substantial or proportionate compliancewith the terms stipulated in the notification. The terms of the notificationlay down strict standards that must be complied with by an applicantseeking an EC for proposed project. The burden of establishingenvironmental compliance rests on project proponent who intends tobring about change in the existing state of the environment. Whereas,in the present case, there has thus been patent failure on part of theproject proponent to make mandatory disclosures stipulated in Form 1under the 2006 notification, that must have consequences in law. Therecan be no gambles with the environment: ‘heads I win, tails you lose’approach is simply unacceptable; unacceptable if we are to preserveenvironmental governance under the rule of law.

Ecologically Sensitive Zones (ESZs)

78. The substratum of the case of the appellants is based on thefollowing extract contained in the EIA report:

“Ecologically Sensitive Zones Ministry of Environment and Forestshad constituted High Level Working Group (HLWG) under theChairmanship of Dr. K. Kasturirangan, Member (Science),Planning Commission vide office order dated 17.08.2012 to studythe preservation of the ecology, environmental integrity and holisticdevelopment of the Western Ghats in view of their rich and uniquebiodiversity. HLWG submitted its report to the MoEF on 15thApril 2013. HLWG identified 37% of natural landscape havinghigh biological richness, low forest fragmentation, low populationdensity and containing Protected Areas, World Heritage Sites andTiger and Elephant corridors as an Ecologically Sensitive Areas(ESA). The present proposed airport site is falling under Pernemtaluka of North Goa district. The Pernem taluka has not beenincluded in the Ecologically Sensitive Areas submitted by HLWG.The MoEF order on ESA is attached as Annexure XVI.”

AAccording to Ms Shenoy, the EIA report notices the Kasturiranganreport submitted on 15 April 2013. The submission is that the EIA reporthas conveniently glossed over the areas adverted to by the Kasturiranganreport as an ESZ. This includes those areas which fall within the studyarea on the ground that Pernem taluka, where the project site is situated,has not been included as an ESZ. In this context, reliance is placed on aBdraft notification dated 3 October 2018 issued by MoEFCC under whichthe Union Government has proposed to notify 56,825 square metresspread across six states – Gujarat, Maharashtra, Goa, Karnataka, Keralaand Tamil Nadu as the Western Ghats ESZ. The preamble to the draftnotification adverts to the steps taken by the Union Government betweenC2013 and 2016 in pursuance of the report of the HLWG. This includesdraft notifications issued on 10 March 2014 and 4 September 2015. Thedraft notification dated 3 October 2018 emphasises the importance ofthe Western Ghats as global biodiversity hot spot:

“WHEREAS, Western Ghats is an important geological landformDon the fringe of the west coast of India and it is the origin ofGodavari, Krishna, Cauvery and number of other rivers andextends over distance of approximately 1500 kilometres fromTapti river in the north to Kanyakumari in the south with an averageelevation of more than 600 metres and traverses through six Statesnamely, Gujarat, Maharashtra, Goa, Karnataka, Kerala and TamilENadu;

AND WHEREAS, Western Ghats is global biodiversity hotspotand treasure trove of biological diversity and it harbours manyendemic species of flowering plants, endemic fishes, amphibians,reptiles, birds, mammals and invertebrates and it is also anFimportant center of evolution of economically importantdomesticated plant species such as pepper, cardamom, cinnamom,mango and jackfruit;

AND WHEREAS, Western Ghats has many unique habitatswhich are home to variety of endemic species of flora and faunaGsuch as Myristica swamps, the flat-topped lateritic plateaus, theSholas and wetland and riverine Eco-systems;

AND WHEREAS, UNESCO has included certain identified partsof Western Ghats in the UNESCO World Natural Heritage Listbecause Western Ghats is Centre of origin of many species as

also home for rich endemic biodiversity and hence cradle forbiological evolution;”

79. Ms Shenoy has emphasised that sixteen villages in the Talukaof Sawantwadi of the district of Sindhudurg which fall within the studyarea have been mapped as an ESZ in the annexure to the draft notificationdated 3 October 2018. They are:

“StateDistrictTalukVillage NameMaharashtraSindhudurgSawantwadiTamboliMaharashtraSindhudurgSawantwadiKumbhavadeMaharashtra Sindhudurg Sawantwadi Degave Maharashtra Sindhudurg Sawantwadi Banda CMaharashtra Sindhudurg Sawantwadi Padve Majgaon Maharashtra Sindhudurg Sawantwadi Ronapal MaharashtraSindhudurgSawantwadiPadveMaharashtraSindhudurgSawantwadiDandeliMaharashtraSindhudurgSawantwadiMaduraDMaharashtra Sindhudurg Sawantwadi Dingne Maharashtra Sindhudurg Sawantwadi Aros Maharashtra Sindhudurg Sawantwadi Galel Maharashtra Sindhudurg Sawantwadi Kondure MaharashtraSindhudurgSawantwadiSatardaMaharashtraSindhudurgSawantwadiDongarpalEMaharashtra Sindhudurg Sawantwadi Sateli Tarf Soundal”

80. comparison of the above villages with Annexure IX of theEIA report indicates that several of the above villages which have beenmapped as ESZs in the draft notification fall within the 10 kilometrebuffer from the project site. Hence, the submission of Ms Shenoy meritsa close analysis.

81. The EIA report has rested content with the observation thatPernem taluka, where the project site is situated, is not an ESZ. That isnot sufficient or adequate, since the purpose of the EIA report is tomake an assessment of ESZs which fall within the study area. MrNadkarni’s response to the above submission is that: (i) neither the Mopaplateau nor Pernem taluka constitute part of the Western Ghats; (ii)the HLWG chaired by Dr Kasturirangan recommended prohibition ofspecified activities while for other activities, the 2006 notification was

Arequired to be followed; (iii) the EIA report, while considering the project,has also adverted to the Kasturirangan report; and (iv) infrastructureprojects except in the prohibited category are permissible, subject to anEIA.

82. The report of the HLWG dated 15 April 2013 recommendsBthat there should be complete ban on mining, quarrying and sand miningactivity in the ESZ. Similarly, it recommends that no thermal power projectshould be allowed in ESZs and that all ‘red category’ industries shouldbe strictly banned. Building and construction projects of 20,000 squaremetres and above should not be allowed. However, all other infrastructureand development projects, which have been recommended, should beCsubject to the grant of ECs under Category ‘A’ projects of the 2006notification.

83. The Union Government issued notification on 13 November2013 in pursuance of Section 5 of the Environment (Protection) Act1986 to the effect that from the date of the issuance of those directions,Dno pending case or fresh case shall be considered by the EACs/MOEFor SEACs/SEIAAs covering the following industries:

(a) Mining, quarrying and sand mining;

(b) Thermal power plants;

E(c) Building and construction projects of 20,000 square metresarea and above;

(d) Township and area development projects with an area of 50hectares and above and/or with built-up area of 1,50,000 square metresand above; andF

(e) ‘Red category’ industries.

84. The submission of the ASG is that there is no prohibition onsetting up Category ‘A’ project in an ESZ. An infrastructure projectsuch as an airport does not fall within the range of prohibited activities.What is necessary is that the project must be assessed in terms of theG2006 notification.

85. The glaring deficiency which emerges from the EIA report isits failure to notice the existence of ESZs within buffer distance of 10kilometres of the project site. On one hand, the EIA report takes note ofthe HLWG report dated 15 April 2013. But, on the other hand, the EIAH

report ignores the existence of ESZs within the study area on the groundthat the project site is not situated in an ESZ. That, as we have seen,can never be accepted as an adequate response. The purpose and objectof the EIA report is to map areas, understand their vulnerabilities, andconduct study on scientific basis of the impact of the proposed projecton an ecologically sensitive terrain. The EIA report fails to meet classicalrequirement of administrative law: to take into account relevantconsideration namely, that within the study area which has to beconsidered, there is the presence of ESZs.

86. In deducing the impact of proposed activity on an ESZ, it isnot sufficient to take recourse to generic assessment of proposedactivity on the ecology of the study area. The EIA report must factor inthose specific features which make an area ecologically sensitive. Thesewould encompass all aspects of environmental concern which renderthe area ecologically sensitive. This would include wet lands, watersources, water bodies, costal zones, biospheres, mountains and forests.The vulnerabilities of each of them must be studied as distinctivecomponents together with holistic analysis of their existence in chainof bio-diversity. Where an area is ecologically sensitive because of thepresence of flora or fauna requiring protection, that must be specificallyadverted to and studied. The deficiency of the EIA report emanatesfrom its failure to notice that the purpose of the study was not only todetermine whether the project site is ecologically sensitive. Confiningitself to this aspect, the EIA report failed to consider crucial and relevantconsideration.

Sampling Points

87. The submission of the appellants is that the Guidance manualrequires the collection of primary data through measures and field studiesin the study area within 10 kilometres radius from the ARP. Secondarydata has to be collected within 15 kilometres aerial distance for theparameters mentioned in Colum 9(III) of Form 1 of the 2006 notification.In the present case, it was urged that not single sampling station withreference to any of the parameters is situated in Maharashtra. As aresult, no sampling sites for any of the parameters fall within 40% of thestudy area. Consequently, no primary data collection was done despitethe carrying out of two samples in 2011 and 2014 respectively. In responseto this submission, it has been urged that all sampling points were basedon para 4.1 of the Guidance manual. As result, it was submitted that

Aareas within Goa and Maharashtra were studied along with impactstudies. In order to assess the submission, it is necessary to refer torelevant aspects of the EIA report:

F.1 Air quality

88. In order to study the ambient air quality in terms of SuspendedBParticulate Matter, Respirable Particulate Matter, SO2, NOX, CO andHC, Ambient Air Quality monitoring stations were set up at six loca-tions. They are at Sinechaadvin, Katwal, Mopa village, Pernem, Nagzorand Patradevi. All are in Goa. The location at Patradevi was on theborder shared by Goa with Maharashtra. The study area extended to aCradial distance of 10 kilometres from the ARP. We accept the submis-sion of the ASG that they would hence cover areas falling within bothGoa and Maharashtra. Para 4.1.2 of Chapter IV of the EIA report setsout the baseline data collected at the monitoring stations. Since theentire study area within radius of 10 kilometres was considered formonitoring air quality, we accept the submission that the location of theDsampling points within Goa did not preclude the monitoring of air qualitywithin the study area.

F.2 Water quality

89. Para 4.2 of the EIA report states that ground water qualityEwas measured at four locations: Mopa village, Pernem, Dargal andPatradevi marked within 10 kilometres of the study area. The surfacewater quality was measured at three locations: Chapora river, Tiraikolriver and Nala near Mopa village within 10 kilometres of the study area.The impact assessment is contained in the EIA report. The Mopa plateauis at height of 155 metres above mean sea level and water from theFplateau flows down to the rivers in the State of Goa. The laterite plateauis an important source of drainage by providing natural channels forwater. The impact of greenfield airport on the closing of natural channelswhich feed the water bodies has not been scientifically mapped or studied.

F.3 Noise qualityG

90. While monitoring the noise quality, the EIA report covered aradius of 10 kilometres. In order to obtain baseline data of noise quality,nine monitoring stations were chosen in the study area. While it is truethat all nine locations were situated in the State of Goa, one (Patradevi)was situated on the border shared between Goa and Maharashtra. The

EIA report contains an impact study and the study area covered includesboth the states.

F.4 Flora and fauna

91. The EIA report indicates that the area surrounding the site forthe proposed airport has dense forests[49]. These total up to nearly 6,634.19hectares[50]. Ms Shenoy has urged that it is impossible that the faunafound by the project proponent through both primary sampling andsecondary sources was only limited to animals such as: domestic dog,cat and cattle, common house mouse, rat and mongoose, jackal and thethree striped palm squirrel. This, in her submission, is clear indicationthat the EIA report is faulty and clearly incorrect.

92. While dealing with the above submissions, it is necessary tonote that the Guidance manual contains specific reference to thecollection of data of sensitive habitats and wild/endangered species inthe project area. The Guidance manual stipulates thus:

“Data on sensitive habitats, wild or endangered species in theproject area also is to be collected from Zoological Survey ofIndia (ZSI), Botanical Survey of India (BSI), Wildlife Institute ofIndia (WII) and Ministry of Earth Sciences. Wildlife symbolizesthe functioning efficiency of the entire eco system. Just as wildflora needs special treatment for preservation and growth, wildfauna as well deserves specific conservatory pursuits forposterity”.

93. The grievance is that no data has been collected from theState of Maharashtra and all secondary data collected by the projectproponent related only to the State of Goa. There is substance in thesubmission which has been urged on behalf of the appellant. readingof the counter affidavit filed by the State of Goa would seem to supportthe appellant’s submission. It is stated:

“I say that several recognised publications and research paperswere referred to in order to verify and assess the data collected,to name few of the publications:

i. Birds of Goa by Heinz Lainer & Rahul Alvares;

49 See for instance para 2.0 of the executive summary and para 2.3.1 of Chapter I

50, See Para 2.3.1, Chapter II

Aii.The Goan Jungle Book by Nirmal Kulkarni;

iii. photographic guide to Butterflies of Goa by Parag Ragnekar;

iv. Flora of Goa, Diu, Daman, Dadra and Nagarhaveli (Vol.1) by RS Rao;

Bv. Flora of Goa, Diu, Daman, Dadra and Nagarhaveli (Vol.2) by RS Rao;

vi. Red data book published by Botanical Survey of India;

vii. Study materials published in Goa ENVIS Centre were also referred.”C

The appellant, on the other hand, has sought to rely upon severalindependent studies including the following:

“a. rapid survey to assess mammal presence at Barazan Plateau,Mopa, Goa, India conducted by Girish Punjabi (Wildlife Biologist)and Atul S Borker (Full Member of IUCN/SSC Otter SpecialistDGroup) that Schedule I species such as gaur, leopard and IndianPangolin; Schedule II species such as giant squirrel, common palmcivet; Schedule III species such as sambar, wild pig and ScheduleIV species such as Indian hare, Indian porcupine.

The report also mentions the presence of the Sawantwadi –EDodamarg wildlife corridor within the 10 km proposed projectsite.

b. Report on one day survey conducted to find evidence of Otterpresence at Mopa, Goa conducted by Atul Borker (Full Memberof IUCN/SSC Otter Specialist Group) that found that perennialFstream on the plateau had presence of the smooth coated otter,that falls within Schedule II of the Wildlife (Protection) Act, 1972.

c. Report on two days survey to find evidence of plant and birdspecies at Mopa Plateau conducted by Aparna Watve (Ecologist)and Sanjay Thakur (Wildlife Biologist) that found Schedule I speciessuch as the Indian peafowl and the Dipcadi concanese which iscritically endangered. The study clearly mentions that the EIAstudy is entire deficit as it does not accurately consider the floraand fauna of the area as well as the number of trees to be cut.”

94. We find that the collection of both primary and secondarydata of fauna in the EIA report was perfunctory. The primary study isnot based on data collected from acknowledged sources such as theZoological Survey of India, Wildlife Institute of India and Ministry ofEarth Sciences as required under the Guidance manual. Similarly, asregard avi-faunal studies, the EIA report lists 385 plant species in table4.15 of Chapter IV, titled ‘Description on Environment’. It also statesthat 86 species of birds were observed during the survey in the 10kilometre study area from the proposed site. Column 9 (III) of Form 1refers to “areas” in the following terms:

“areas which are used by protected, important or sensitive speciesof flora or fauna for breeding, foraging, nesting, resting, overwintering or migration”.

The above column was left blank by the project proponent in Form1. According to the Guidance manual, secondary data has to be collectedwithin an aerial distance of 15 kilometres for the parameters specificallyspecified in column 9(III) of Form 1 of the 2006 notification. This wasevidently not done. careful avi-faunal study was necessary, havingdue regard to the fact that the proposed project is an airport site. Bearingin mind the profile of airport operations, foraging or nesting by bird speciesin and around the airport must not be discarded. It must be accepted thatin project involving the setting up of an airport, the EIA report mustdeal with the impact of the airport on birds and likewise the impact ofbirds on aircraft operations.

F.5 Felling of Trees

95. Para 2.1.5 of the executive summary to the EIA report dealswith the biological environment. Para 2.1.5 stipulates thus:

“The area required for proposed airport has only few trees,mainly bushes. These will be cleared during site preparation.”

(Emphasis supplied)

Similarly, Chapter II which deals with project description specifiesin para 2.3.1 that “vegetation and trees are sparse at the site”.That the trees which were required to be felled were far from “few” isevident from the reply filed by the State of Goa in the present proceedingswhere it has been stated that permissions were granted for the felling

Aof 54,676 trees. The EIA report ignored them. The submission in theEIA report that there were only sparse trees is sought to be explained bythe state from the perspective of the large area of the land proposed forthe project. It is sought to be explained that since the total area is 2,133acres, the number of trees would proportionately work out to about 25trees in an area of one acre (about one tree in an area of 160 squareBmetres). In terms of the order passed by the Bombay High Court in thePIL, to which we have adverted earlier, the Principal Chief Conservatorof Forests, Goa passed an order on 2 April 2018 providing for (i) theenumeration of all trees; (ii) exploring the possibility of transplantingexisting trees which could be safely transplanted into ground areas; (iii)Cissuance of tree cutting permission by the Deputy Conservator of Forests;and (iv) planting of ten times the number of trees felled by theconcessionaire under the supervision of the Forest Department.96. On 6 February 2018, the Deputy Conservator of Forests hadgranted permission for felling of 21,703 trees. Following the dismissal ofDan appeal under Section 15 of the Goa, Daman and Diu Preservation ofTrees Act 1984 filed by the Federation of Rainbow Warriors, WritPetition was filed before the Bombay High Court[51]. The High Court setaside the order of the Deputy Conservator of Forests and remanded theproceedings to the Principal Chief Conservator who passed the orderwhich has been noted above. Following the order of the Principal ChiefEConservator, 54,676 trees were enumerated. The competent authoritygranted permission for the felling of trees thereafter on the followingdates: (i) 1,422 trees by an order dated 20 April 2018; (ii) 18,408 trees byan order dated 24 July 2018 and (iii) 33,298 trees by an order dated 1October 2018. Following this exercise, the felling of trees was completedFon 18 January 2019. The Bombay High Court having directed that theorder of the Principal Chief Conservator of Forests shall be subject tothe specific permission of the NGT in the pending proceedings, aMiscellaneous Application was moved before the NGT. While disposingof the main appeal, the NGT also disposed of the MiscellaneousApplication and under the head of ‘Biological Environment’, the followingGdirections have been issued:

51 WP No. 1 of 2018

“E. Biological Environment

1. Efforts be made to transplant the trees to other locations in thesame vicinity by using appropriate mechanical devices which areavailable these days.

2. Efforts be made to plant indigenous species which are tall insize rather than small saplings.

3. Concerns have been raised by appellants with regard to plantspecies ‘Dipcadi concanense’ which has been claimed to be athreatened plant. This claim of the appellants have been negatedby the respondent by producing documentation of BotanicalSurvey of India, Western Regional Centre, Pune, Maharashtratitled as “A Note on Occurrence and Distribution of Dipcadiconcanense”. By invoking Precautionary Principle, we direct theProject Proponent to draw up Conservancy by Plan/Schemefor ‘Dipcadi concanense’ in collaboration with Forest Department,State of Goa and Botanical Survey of India and ensure its imple-mentation.”97. We express our serious displeasure with the manner in whichthe EIA report made an attempt to gloss over the existence of trees.The EIA report prevaricated by recording that the area required for theproposed airport has only few trees, mostly bushes. The EIA reportstates that vegetation and trees are sparse at the site. photograph anda google map image are put forth as illustrations in figure 2.3 of ChapterII. To realise later that the project involved the felling of 54,676 trees isindicative of the cavalier approach to the issue and process of factfinding which is parsimonious with the truth. Post facto explanationsare inadequate to deal with failure of due process in the field ofenvironmental governance. The State of Goa would have us gloss overthe felling of trees by submitting that 54,676 trees over project area of2,133 acres averages out to 25 trees per acre or one tree over an area of160 square metres. This is fallacious approach to the issue. Mathematicalaverages cannot displace factual data about the actual number of treeswhich were affected by the project. The EIA report ought to havescrutinized the number of trees, their nature and longevity. Issues suchas the extent to which the trees or some of them were capable of beingtransplanted had to be considered in the EIA report. The location of the

Atrees is also significant. In given case, if the trees appear in clusters orin dense formation in segments of the project site, it would be necessaryto determine whether felling all of them was necessary for the project tobe implemented.

98. In the written submissions which have been filed by the StateBof Goa, it has been submitted that of the 54,676 tees which were felled:(i) 32,193 trees representing 59% had girth of 30 to 50 centimeters; (ii)19,903 trees representing 36% had girth of 50 to 100 centimeters; and(iii) ‘only 2,580 trees’ had girth exceeding 100 centimeters. The Goa,Daman and Diu Preservation of Trees Act, 1984 defines the expression“tree” in Section 2(j) in the following terms:C

“S. 2(j) - “tree” means any woody plant whose branches springfrom and are supported upon the trunk or the body and whosetrunk or body is not less than ten centimeters in diameter at aheight of one meter from the ground level and includes coconutpalm.”D

This definition has been highlighted to indicate that it incorporatesa stringent meaning of the expression ‘trees’. The point, however, issimple: there was glaring omission of the factual existence of as manyas 54,676 trees in the EIA report. For project proponents, the environmentmay not possess human voice. But the purpose of prescribing an EIAEreport is precisely to undertake baseline study on all aspects of theenvironment and to anticipate the impact of projected activity on theenvironment. Ignoring any component of the environment amounts to aserious dereliction of duty which detracts from the rule of law in mattersof environmental governance.F

99. The order of the Principal Chief Conservator of Forestsmandating transplantation, where possible, and the plantation of ten treesfor every tree felled provides measure of rectification. But there is areason why issues pertaining to vegetational cover must be taken seriouslyin the EIA process. The formula of planting set number of trees forGevery existing tree felled must be alive to the fact that the survival ofnew plantations is replete with uncertainty. The survival of transplantedtrees is equally matter of uncertainty. Though the development ofinfrastructure may necessitate the felling of trees, the process stipulatedunder the 2006 notification must be transparent, candid and robust. Aregulatory regime for environmental governance is based on the

hypothesis that all stakeholders will act with rectitude. Hiding significantcomponents of the environment from scrutiny is not an acceptable modalityto secure project approvals. There was serious lacuna in regard todisclosures and appraisal on this aspect of the controversy.

Public Consultation

100. The importance of public consultation is underscored by the2006 notification. Public consultation, as it states, is “the process bywhich the concerns of local affected persons and others who have aplausible stake in the environmental impacts of the project or activity areascertained with view to take into account all the material concerns inthe project or activity design as appropriate”. This postulates twoelements. They have both, an intrinsic and an instrumental character.The intrinsic character of public consultation is that there is value inseeking the views of those in the local area as well as beyond, who havea plausible stake in the project or activity. Public consultation is processwhich is designed to hear the voices of those communities which wouldbe affected by the activity. They may be affected in terms of the airwhich they breathe, the water which they drink or use to irrigate theirlands, the disruption of local habitats, and the denudation of environmentaleco-systems which define their existence and sustain their livelihoods.

101. Public consultation involves process of confidence buildingby giving an important role to those who have plausible stake. It alsorecognizes that apart from the knowledge which is provided by scienceand technology, local communities have an innate knowledge of theenvironment. The knowledge of local communities is transmitted by auraland visual traditions through generations. By recognizing that they aresignificant stakeholders, the consultation process seeks to preserveparticipation as an important facet of governance based on the rule oflaw. Participation protects the intrinsic value of inclusion.

102. The 2006 notification postulates:

(i) public hearing at or in close proximity to the project site to ascertain the views of “locally affected persons”;

(ii) Obtaining written responses from “other concerned” individuals having “plausible stake” in the environmental aspects of the project or the activity;

A(iii) The duty of the SPCB to conduct hearings and to forward the proceedings to the regulatory authority within the stipulated time;

(iv) Placing on the website of the Pollution Control Board summary of the EIA report in the prescribed format and theB making available of the draft EIA report by the regulatory authority on written request by any person concerned, for inspection;

(v) The duty of the applicant to address all material concerns expressed during the process of public consultation;

C(vi) The making of appropriate changes in the draft EIA and EMP; and

(vii) The submission of the final EIA report by the applicant to the regulatory authority for appraisal.

Each of these features is crucial to the success of publicDconsultation process. Public consultation cannot be reduced to mereincantation or procedural formality which has to be completed to moveon to the next stage. Underlying public consultation is the importantconstitutional value that decisions which affect the lives of individualsmust, in system of democratic governance, factor in their concernswhich have been expressed after obtaining full knowledge of projectEand its potential environmental effects.103. Apart from the intrinsic value of public consultation, it servesan instrumental function as well. The purpose of ascertaining the viewsof stakeholders, is to account for all the material concerns in the designof the proposed project or activity. For this reason, the process of publicFconsultation involves several important stages. The Pollution ControlBoard is under mandate to forward the proceedings to the regulatoryauthority. The project proponent must address all material environmentalconcerns and make appropriate changes in the draft EIA and EMP. Theproject proponent may even submit supplementary report to the draftEIA. Each of these elements is crucial to the design features of theG2006 notification. breach will render the process vulnerable to challengeon the ground that: (i) significant environmental concerns have not beentaken into account; (ii) there was an absence of full disclosure whenthe EIA report was put up for consultation; and (iii) concerns whichhave been expressed by persons affected by the project have not beenHadequately dealt with or analysed.

104. The public consultation was held on 1 February 2015 at Mopa.Nearly 70 persons spoke on the occasion and 1,586 persons signed theattendance sheet. 1,150 representations were received. Some of theenvironmental concerns expressed during the public hearing arecatalogued below:

(i) Mopa plateau has multiple water sheds and the discharge of watergoes down to the rivers;

(ii) Nearly forty springs would be affected along with flora and fauna;

(iii) The public hearing had been conducted in an area where the landwas barren and with no plantation;

(iv) The impact on river Chapora, which is within 10 kilometre radiusfrom the project, has not been adequately analysed;

(v) Mopa plateau has natural mechanism for ground water recharge;

(vi) Protection of the Western Ghats is necessary, particularly with theview to not disturb flora and fauna;

(vii) The EIA report has not been made available to the affected areasand Gram Panchayats in the buffer zone;

(viii) Local plantations would be affected;

(ix) The number of trees to be felled by the project proponent has notbeen specified in the EIA report;

(x) The Dodamarg Wildlife Sanctuary had been ‘sanitized’ by the HighCourt;

(xi) Forest clearance had not been obtained;

(xii) The sacred groves of the area have not been described, includingthe Barazan which will be lost;

(xiii) The slopes sustain cashew plantations with nearly forty lakh cashewtrees resulting in an annual income of Rs Fifty crores; and

(xiv) No study has been carried out in the 10 kilometre radius falling inMaharashtra.

105. These concerns are at the forefront of the debate in thepresent case. What is significant, is the manner in which they wereprojected before the EAC at its 149[th] meeting on 26 June 2015 where

Athe project proponent made presentation. The Minutes of the meetingrecorded the following observations of the project proponent:

“x. Public Hearing was conducted on 01.02.2015 at SimechenAdven, Mopa, Goa. The major issues raised during publichearing and responses sought from the project proponentBrelated to employment opportunities.”

(Emphasis supplied)

On the basis of factual analysis, Ms Shenoy has submitted thatonly seven out of the 68 objections dealt with the issue of employment.Evidently, the project proponent failed to address the other significantCconcerns in the manner which is required by the 2006 notification.

106. In Utkarsh Mandal v Union of India[52], the Delhi HighCourt has succinctly summarized the duty of the EAC to apply its mindto the objections raised in the course of public hearings:

D“It is that body that has to apply its collective mind to the objectionsand not merely the MoEF which has to consider such objectionsat the second stage. We therefore hold that in the context of theEIA Notification dated 14[th] September 2006 and the mandatoryrequirement of holding public hearings to invite objections it is theduty of the EAC, to whom the task of evaluating such objectionsEhas been delegated, to indicate in its decision the fact that suchobjections, and the response thereto of the project proponent, wereconsidered and the reasons why any or all of such objectionswere accepted or negatived. The failure to give such reasonswould render the decision vulnerable to attack on the ground ofFbeing vitiated due to non-application of mind to relevant materialsand therefore arbitrary.”

107. Crucial objections and environmental concerns which wereraised during the consultative process were reduced to single issue bythe project proponent before the EAC: the need for employmentopportunities. The project proponent failed in its duty to inform the EAC.GThe record does not indicate critical appraisal or analysis by the EAC.

The EAC was duty bound to apply its mind to the environmental concernsraised by stakeholders. The duty of the project proponent to place fairlyall the environmental concerns raised during the public hearing is the52 (2009) SCC Online Del 3836H

crucial link in the appraisal by the EAC. The Minutes of the meetingindicate that there was no fair and complete disclosure of the objectionswhich were raised during the public hearing before the EAC. There isevidently failure in the process of applying and implementing the normslaid down in the 2006 notification in this regard.

Appraisal by the EAC

108. Appraisal by the EAC is structured and defined by the 2006notification. The process of appraisal is defined to mean “a detailedscrutiny” by the EAC of the application and other documents like theEIA report and the outcome of the public consultation, including thepublic hearing proceedings, submitted by the applicant to the regulatoryauthority for the grant of an EC. The EAC is under mandate to conductthe process of appraisal in “a transparent manner”. On the conclusionof these proceedings, the EAC has to make “categoricalrecommendations” to the regulatory authority either for: (i) the grant ofa prior environmental clearance on stipulated terms and conditions; or(ii) the rejection of the application. The recommendations made by theEAC to the regulatory authority must be based on “reasons”.

109. The EAC, at its 149[th] meeting held on 26 June 2015, consideredthe EIA report and sought clarification from the project proponent onthe following six aspects:

“i. There is need to superimpose the layout plan showing thedrainage pattern including natural drainage, construction in thearea on superimposed map showing clear topography of the region;

ii. 10 year data regarding rain fall in the area;

iii. Justification on sustainability of existing traffic and transportationarrangements especially at inter-section points of the approachroad to the airport needs to be submitted;

iv. traffic circulation plan needs to be evolved for smooth runningof traffic in the area;

v. Measures taken to comply with the CPCB guidelines formulatedfor noise pollution control in airport areas to be submitted; and

vi. Minimum 20% energy conservation measures should beadopted incorporating provisions for use of LED, star rated ACsetc. Revised Energy Conservation Plan to be submitted.”

A110. representation was received from the Federation ofRainbow Warriors, consequent to which the consideration was deferredand the project proponent was requested to submit “point-wise replyto the issues raised” in the representation. The EAC, at its 152[nd] meetingheld on 20 October 2015, observed that the project proponent had provided“pointwise clarifications to the concerns raised by the ‘NGO’”. TheBEAC noted thus:

“The EIA report has been updated by the PP after taking intoaccount the issues raised in the public hearing and the same hasbeen put in public domain.

CThe project is outside the ESZ delineated by the Dr KasturiranganCommittee and TERI.

The project envisages construction of rain water harvesting pitswithin the plot area, which would contribute to ground waterrecharge. Hence, the objection of NGO in this regard does nothold.D

The biological data in respect of flora and fauna was collected bythe functional area experts of M/s Engineers India Limited andnot by M/s Pragati Labs stationed at Goa during November, 2014to January, 2015 for collection of ambient air quality, noise, waterEquality, soil, socio-economics.”

Following the above statement, the EAC recommended the grantof an EC subject to certain conditions. Para 3.1.2 of the Minutes of theEAC is as follows:

“The Committee noted the peculiar circumstances of the caseFand the difficulties in land acquisition which led to delay inpreparation of the EIA report, and the larger public interestinvolved.

Keeping in view the fact that the project proponent has notconcealed facts and circumstances of the case and the project isGin the public interest, the Ministry may take an appropriate viewon the objection that the public hearing could not have been held,in the absence of valid TOR, though the validity has been extendedtwice and regularized subsequently. The Committee also notedthat the public hearing was attended by about 3000 people and

hence there is substantive and active public participation as requiredunder the law for public consultation.

The PP further provided their reply to the rebuttal by the saidNGO on various issues.

The EAC, after deliberations, recommended the project for grantof EC subject to the above and the following:-

The project proponent shall ensure availability of adequate landat the junction of the Mopa Airport road and Mumbai/Goa NH17 for traffic circulation/ management and to provide for allthe traffic interchanges and proposed clover.

The approach and exit roads to the airport would be approvedfrom the NHAI and should be according to IRC norms.

perusal of the Topo sheet superimposed on the runway areaindicates that the extreme end of the runway is covering thedrainage area partly. The drainage area which is underthe runway needs to be channelized. The area between theparallel taxi way and run way needs to be handled carefully todrain the water from the area in the outfall.”

111. The above explanation must be assessed with reference tothe norm that the EAC is required to submit reasons for itsrecommendation. The above extract indicates that the EAC has advertedto the following circumstances:

(i) The “peculiar circumstances” of the case;

(ii) The difficulties in land acquisition which led to delay in thepreparation of the EIA report;

(iii) The “larger public interest” involved;

(iv) The project proponent had not concealed facts and circum-stances of the case;

(v) The project is in the public interest; and

(vi) The project proponent had provided reply to the rebuttal byRainbow Warriors on various issues.

This analysis of the EIA report is, to say the least, sketchy andperfunctory and discloses an abdication of its functions by the EAC.

AThe requirement that the EAC must record reasons, besides beingmandatory under the 2006 notification, is of significance for two reasons:

(i) The EAC makes recommendation to the regulatory authority interms of the 2006 notification. The regulatory authority has to con-sider the recommendation and convey its decision to the projectBproponent. The regulatory authority, as para 8(ii) provides, shallnormally accept the recommendations of the EAC. Where it dis-agrees, it would request reconsideration, stating the reasons for itsdisagreement. In turn, the EAC will consider the observations ofthe regulatory authority and furnish its views within stipulatedperiod; andC(ii) The grant of an EC is subject to an appeal before the NGT underSection 16 of the NGT Act 2010.

The reasons furnished by the EAC for its recommendation are abasic link in the ultimate decision of the regulatory authority. TheyDconstitute substantive material which will be considered by the Tribunalwhen it considers challenge to the grant of an EC.

112. What, then, do the reasons which have been furnished by theEAC tell us? The EAC relies on the “peculiar circumstances of thecase” as the basis of its recommendation. What the peculiarEcircumstances are, is left for pure guess work or surmise. The EACrefers to the delay in acquisition proceedings, larger public interest andthe fact that the project proponent “has not concealed facts andcircumstances”. Each one of the reasons which has weighed with theEAC betrays lack of comprehension of the true nature of its functionunder the 2006 notification. The EAC has failed to consider relevantFcircumstances bearing on the environmental impact of the project andhas instead considered circumstances extraneous to its function. Thatthe project proponent, according to the EAC, has not concealed factsand circumstances is not reason enough to warrant grant of an EC.Moreover, even this hypothesis (as we have seen earlier) is incorrect.GThere is no analysis of the EIA report. The EAC has failed to answer tothe call to its expertise.

113. Clause (vi) of para 8 of the 2006 notification stipulates thus:“(vi) Deliberate concealment and/or submission of false ormisleading information or data which is material to screening or

scoping or appraisal or decision on the application shall make theapplication liable for rejection, and cancellation of priorenvironmental clearance granted on that basis. Rejection of anapplication or cancellation of prior environmental clearancealready granted, on such ground, shall be decided by the regulatoryauthority, after giving personal hearing to the applicant, andfollowing the principles of natural justice.”

Deliberate concealment or the submission of false or misleadinginformation or data material for screening, scoping, appraisal or decisionon the application makes it liable for rejection. That the project proponentmust submit all information and data without concealing relevant featuresis basic hypothesis and expectation of the 2006 notification. The EAChas, in the brief reasons which are contained in para 3.1.2, not applied itsmind at all to the environmental concerns raised in relation to the projectnor do its reasons indicate an appraisal of those concerns by evaluatingthe impact of the project.114. The EAC is an expert body. It must speak in the manner ofan expert. Its remit is to apply itself to every relevant aspect of theproject bearing upon the environment. It is not bound by the analysiswhich is conducted in the EIA report. It is duty bound to analyse the EIAreport. Where it finds it deficient it can adopt such modalities which, inits expert decision-making capacity, are required. The reasons whichare furnished by the EAC constitute live link between its processesand the outomce of its adjudicatory function. In the absence of cogentreasons, the process by its very nature, together with the outcome standsvitiated.

115. Mr ANS Nadkarni, learned ASG urged that the EAC had, inits 149[th] meeting, sought additional information on six issues. Subsequently,at its 151[st] meeting, it deferred consideration upon the representationfiled by the Federation of Rainbow Warriors and at its 152[nd] meeting, itanalysed the response of the project proponent to the representation.Hence, the EAC must be deemed to have applied its mind. This approachis completely flawed. At its 149[th] meeting, the EAC specifically calledfor clarification on six issues. The next meeting was deferred. TheMinutes of the 152[nd] meeting contain no assessment of whether theclarifications which were sought by the EAC had been replied to itssatisfaction by the project proponent. The objection to the modalitiesadopted by the EAC, however, are more fundamental. The Minutes of

Athe 152[nd] meeting indicate that the EAC primarily, if not exclusively,dealt with the “pointwise clarifications” of the project proponent to therepresentation by the Federation of Rainbow Warriors. Dealing with arepresentation is not exhaustive of the function of the EAC. Arguably, ifno representation was received, or if representation submitted by anindividual objector is found to be incorrect, that by itself is no ground toBrecommend an EC.

116. The EAC, as an expert body, has to scrutinize all relevantaspects of the project or activity proposed, including its impact on theenvironment. In taking that decision, the EIA report is an input for itsanalysis. The scrutiny and appraisal has to be undertaken by the EACCas an expert body and its reasons must reflect that this has been done.As the Minutes indicate, the non-application of mind by the EAC isevident with reference to the presence of 15 ESZs in the study area.The EAC notes that the project is outside the ESZ delineated by theKasturirangan Committee. In the absence of critical analysis, the EACDfailed in discharging its duties under the 2006 notification. Therecommendations of the EAC furnish guide for the MoEFCC. Indeed,the 2006 notification stipulates that the recommendations of the EACwould normally be accepted. Consequently, failure of due processbefore the EAC, as in the present case, must lead to the invalidation ofthe EC.E

I The appellate jurisdiction of the NGT: the requirement of merits review

117.. The NGT is entrusted with appellate jurisdiction under Section16 of the NGT Act 2010. Section 16(h) provides thus:

“16 Tribunal to have appellate jurisdiction. - Any person aggrievedby,-

(h) an order made, on or after the commencement of the NationalGreen Tribunal Act, 2010, granting environmental clearance inGthe area in which any industries, operations or processes or classof industries, operations and processes shall not be carried out orshall be carried out subject to certain safeguards under theEnvironment (Protection) Act, 1986 (29 of 1986);”

Section 20 mandates that the Tribunal shall, while passing anyorder, decision or award, apply the principles of sustainable development,the precautionary principle and the polluter pays principle. Severaldecisions of this Court have given meaning to these principles[53].

118. The decision of the NGT indicates that several significantsubmissions were urged before it. The entire analysis by the NGT iscontained in one paragraph of its judgment dated 21 August 2018 whichis extracted below:

“27. We find that the Expert Appraisal Committee had before itpoint wise reply of the project proponent which we have alreadyquoted above. Therein delay in land acquisition process andcollection of fresh baseline data are mentioned. It is also mentionedthat data for Maharashtra was also considered. Other issues dulyexplained are hydro-geological features and data with regard toflora and fauna, socio-economic profile, topography, vegetation,observance of due procedure in public hearing, relevance of studywith regard to ecosensitive areas of Western Ghats, feasibility ofproposed airport in terms of cost benefit analysis as well asenvironmental cost benefit analysis. EAC also considered the datacompiled by various offices. Mere fact that different opinions havebeen expressed by other experts is not enough to hold that EACdid not apply its mind. The rehabilitation programme was alsoproduced before the EAC”.

The next paragraph contains brief reference to the fact that therequirement of study over distance of 15 kilometres is in regard tothe collection of secondary data. The above paragraph, in our view,does not fulfil the requirement of merits review by an expert adjudicatorybody vested with appellate jurisdiction.

119. The NGT Act provides for the constitution of Tribunalconsisting both of judicial and expert members. The mix of judicial andtechnical members envisaged by the statute is for the reason that theTribunal is called upon to consider questions which involve the application

53 Vellore Citizens Welfare Forum v Union Of India, (1996) 5 SCC 647; M CMehta v Kamal Nath, (1997) 1 SCC 388; M Mehta v Union of India, (1997) 2SCC 353; P Pollution Control Board v Prof M V Nayudu (Retd.), (1999) 2 SCC718; Narmada Bachao Andolan v Union of India, (2000) 10 SCC 664; Indian Councilfor Enviro Legal Action v Union of India, (2011) 8 SCC 161

CDE

Aand assessment of science and its interface with the environment. Inorder to be eligible for appointment as an expert member, person mustfulfill the following qualifications prescribed in Section 5(2):

“(2) person shall not be qualified for appointment as an ExpertMember, unless he,

(a) has degree in Master of Science (in physical sciences or lifesciences) with Doctorate degree or Master of Engineering orMaster of Technology and has an experience of fifteen years inthe relevant field including five years practical experience in thefield of environment and forests (including pollution control, haz-Cardous substance management, environment impact assessment,climate change management, biological diversity managementand forest conservation) in reputed National level institution; or

(b) has administrative experience of fifteen years includingexperience of five years in dealing with environmental matters inDthe Central or State Government or in reputed National orState level institution.”

The NGT is an expert adjudicatory body on the environment.

120. In two of its previous decisions, the NGT has shown the pathalong with which it must traverse in arriving at its decisions. In SaveEMon Region Federation v Union of India[54], the grant of an EC to a780 Megawatts Hydroelectric Project in Tawang district of ArunachalPradesh was challenged. The NGT framed the question before it inbroad terms:

“…the material issue, therefore, that needs to be answered inFthe present Appeal is as to whether the process of grant of priorEC to the project in question suffers from vice of faulty scopingprocess or not.”

Having reviewed the information furnished in Form 1 by the projectproponent as well as the multiple reports on record on the bird speciesGinvolved in the site for the proposed project, the NGT held that factsmaterial to the case were not present before the EAC and the consequent‘vacuum in the EIA report’ lead to aberrations in the appraisal processconducted by it. Suspending the EC granted to the project, the NGT

54 2013 (1) All India NGT Reporter 1H

accepted the contention which was urged before it that the NGT has the‘authority to take an appropriate decision on the facts placed before it’and ‘set aside or suspend the EC’.

Similarly, in Shreeranganathan K P v Union of India[55], thegrant of an EC to the KGS Aranmula International Airport Project waschallenged. The NGT found fault with the process leading to up to thegrant of the EC since sector specific issues had not been dealt with.The NGT extensively reviewed the information submitted by the projectproponent in Form 1, the deficiencies in the EIA report, the process ofappraisal conducted by the EAC and the sector specific guidelines laiddown with regard to the constructions of airports and held thus:

“182. … duty is cast upon the EAC or SEAC as the case maybe to apply the cardinal principle of Sustainable Development andPrinciple of Precaution while screening, scoping, and appraisal ofthe projects or activities. While so, it is evident in the instant casethat the EAC has miserably failed in the performance of its dutynot only as mandated by the EIA Notification, 2006, but has alsodisappointed the legal expectations from the same. For hugeproject as the one in the instant case, the consideration for approvalhas been done in such cursory and arbitrary manner withouttaking note of the implication and importance of environmentalissues. …Thus, the EAC has not conducted itself as mandated bythe EIA Notification, 2006 since it has not made proper appraisalby considering the available materials and objections in order tomake proper evaluation of the project before making arecommendation for grant of EC.

187…the Tribunal is of the considered opinion that there is nooption but to scrap the impugned EC granted by the MoEF to the3[rd] respondent/project proponent for setting up the Aranmulaairport”

121. The failure to consider materials on vital issue and indeedthe non-consideration of vital issues raises substantial question of lawleading to the invoking of the jurisdiction of this Court under Section 22of the NGT Act 2010. The failure of process in the present case hasbeen compounded by the absence of merits review by the NGT.

552014 ALL (I) NGT Reporter (1) (SZ) 1

A122. The learned ASG has placed reliance on the decision of thisCourt in Lafarge Umiam Mining Private Limited v Union of India[56](“Lafarge”) to contend that the failure to disclose the presence of treesshould not lead to the invalidation of the EC. In that case, an applicationwas made under the 1994 notification for the grant of an EC to proposedlimestone mining project at Nongtrai Village, East Khasi Hills District,BMeghalaya. EC was granted for the project in 2001. Pursuant to letterby the Principal Chief Conservator of Forests to the MoEF drawingattention to the non-disclosure of forests, the project proponent appliedfor revised EC and forest clearance under the Forest (Conservation)Act 1980. An ex post facto EC along with forest clearance was grantedCin 2010. Challenging the grant of the EC, it was urged that there was afailing on part of the project proponent to disclose the presence of forestson the proposed project site.123. three judge Bench of this Court rejected the challenge andupheld the grant of the EC to the proposed project. This Court relied,Damong other factors, on the following: (i) the mining of limestone in theKhasi Hills dates back to 1763 and is an integral part of the culture ofthe Nongtrai Village; (ii) the site was cleared after thorough consultationwith the custodian of the land, who decided to lease the land for themining project following the loss of revenue caused due to mining by theunorganized sector; (iii) the Headman of the Nongtrai and the villageEdurbar, who participated at the public hearing and filed written submissionsbefore this Court, supported the project and certified that no damagewould be caused to adjacent lands; (iv) at the stage of site clearance,the MoEF had before it certificates by the Executive Committee, KhasiHills Autonomous District Council and the DFO, Khasi Hill Division,FShillong, certifying that there were no forests in the proposed projectsite; (v) the DFO certified that that the proposed mining site was not aforest as defined in Godavarman (supra); (vi) the 2006 notification wasnot applicable; and (vii) the MoEF had, at multiple stages, soughtclarifications from the project proponent and had undertaken requisite

care and caution to protect the environment. Upholding the grant of theGEC and the forest clearance, this Court held thus:

“120…The word “development” is relative term. One cannotassume that the tribals are not aware of principles of conservationof forest. In the present case, we are satisfied that limestone

56 (2011) 7 SCC 338H

mining has been going on for centuries in the area and thatit is an activity which is intertwined with the culture andthe unique landholding and tenure system of NongtraiVillage. On the facts of this case, we are satisfied with the duediligence exercise undertaken by MoEF in the matter of forestdiversion. Thus, our order herein is confined to the facts ofthis case.”(Emphasis supplied)

124. The decision of this Court in Lafarge (supra), was based onthe facts summarized above. Significantly, the standard of judicial reviewwhich must be applied in cases relating to the environment has beenformulated by the three judge Bench in Lafarge (supra). Chief JusticeS Kapadia noted that the doctrine of proportionality must be applied tomatters concerning the environment as part of judicial review. Theprinciples of judicial review in environmental matters have beenenunciated thus:

“In the circumstances, barring exceptions, decisions relating toutilisation of natural resources have to be tested on the anvil ofthe well-recognised principles of judicial review. Have all therelevant factors been taken into account? Have any extraneousfactors influenced the decision? Is the decision strictly inaccordance with the legislative policy underlying the law (if any)that governs the field? Is the decision consistent with the principlesof sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis ofrelevant considerations, arrived at balanced decision? Thus, theCourt should review the decision-making process to ensure thatthe decision of MoEF is fair and fully informed, based on thecorrect principles, and free from any bias or restraint.”

125. In recent three judge Bench decision of this Court in MantriTechzone Pvt. Ltd. v Forward Foundation[57], this Court had theoccasion to construe the provisions of Section 22 of the NGT Act 2010.Speaking for the Bench, Justice Abdul Nazeer held that the test todetermine whether substantial question of law arises (within themeaning of Section 100 of CPC) was formulated in the decision of aConstitution Bench in Sir Chunilal v Mehta and Sons, Ltd. v CenturySpinning and Manufacturing[58], where it was held thus:

57 (2019) 4 SCALE 218

58 1962 Supp. (3) SCR 549

DEF

“The proper test for determining whether question of law raisedin the case is substantial would, in our opinion, be whether it is ofgeneral public importance or whether it directly and substantiallyaffects the rights of the parties and if so whether it is either anopen question in the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is not free fromBdifficulty or calls for discussion of alternative views. If the questionis settled by the highest court or the general principles to be appliedin determining the question are well settled and there is merequestion of applying those principles or that the plea raised ispalpably absurd the question would not be substantial questionCof law.”

Re-appreciation of the ‘factual matrix’ has been held to be distinctfrom substantial question of law. In the present case, we have indicatedthe basis for the invocation of the jurisdiction of this Court under Section22. There was failure to follow binding norms under the 2006 notification.DThere were serious flaws in the decision-making process. Relevantmaterial has been excluded from consideration and extraneouscircumstances were borne in mind. The EAC as an expert body abdicatedits obligations to make an expert determination based on reasons. TheNGT as an adjudicatory body failed to exercise the jurisdiction entrustedto it under Section 16(h) read with Section 20 of the NGT Act 2010 byEmerely deferring to the decision to recommend and grant an EC. Theparameters in regard to the existence of substantial questions of lawhave hence been established in the classical or conventional sense ofthat expression.

J Environmental Rule of LawF

126. Fundamental to the outcome of this case is quest forenvironmental governance within rule of law paradigm. Environmentalgovernance is founded on the need to promote environmental sustainabilityas crucial enabling factor which ensures the health of our eco system.

G127. Since the Stockholm Conference, there has been dramaticexpansion in environmental laws and institutions across the globe. Inmany instances, these laws and institutions have helped to slow down orreverse environmental degradation. However, this progress is alsoaccompanied, by growing understanding that there is considerableimplementation gap between the requirements of environmental lawsHand their implementation and enforcement – both in developed and

developing countries alike.[59] The environmental rule of law seeks toaddress this gap.

128. The environmental rule of law provides an essential platformunderpinning the four pillars of sustainable development— economic,social, environmental, and peace.[60] It imbues environmental objectiveswith the essentials of rule of law and underpins the reform ofenvironmental law and governance.[61] The environmental rule of lawbecomes priority particularly when we acknowledge that the benefitsof environmental rule of law extend far beyond the environmentalsector. While the most direct effects are on protection of theenvironment, it also strengthens rule of law more broadly, supportssustainable economic and social development, protects public health,contributes to peace and security by avoiding and defusing conflict, andprotects human and constitutional rights.[62] Similarly, the rule of law inenvironmental matters is indispensable “for equity in terms of theadvancement of the Sustainable Development Goals[63], the provision offair access by assuring rights-based approach, and the promotion andprotection of environmental and other socio-economic rights.”[64]129. Amartya Sen argues for broadening of the notion ofsustainable development which is the most dominant theme ofenvironmental literature, from need-based standard[65] to standardbased on freedoms.[66] Thus recharacterized, it encompasses thepreservation, and when possible even the expansion of the substantivefreedoms and capabilities of people today without compromising thecapability of future generations to have similar - or more - freedoms.The intertwined concepts of environmental rule of law thus furtherintragenerational as well as intergenerational equity.

59 United Nations Environment Programme, First Environmental Rule of Law Report.Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/27279/

Environmental_rule_of_law.pdf?sequence=1&isAllowed=y

60 Ibid

61 Ibid

62 Ibid63 SDGs

64 UN Environment, Environmental Rule of Law. Available at https://www.unenvironment.org/explore-topics/environmental-rights-and-governance/what-we-do/promoting-environmental-rule-law-0

65 Bruntdland definition of Sustainable Development

66 Amartya Sen, Sustainable Development and our responsibilities. Available ath t t p : / / w w w. o m i t t o s i n t i i o . o r / t m i % 2 0 S / o u m n t s /SEN%20Responsibility&SD%2010.pdf

A130. Decision 27/9 which was adopted by the United NationsEnvironment Programme’s[67] Governing Body at its first universal sessionin 2013 on ‘Advancing Justice, Governance and Law for EnvironmentalSustainability’ was the first internationally negotiated document to establishthe term ‘environmental rule of law.’ It declared that “the violation ofenvironmental law has the potential to undermine sustainable developmentBand the implementation of agreed environmental goals and objectives atall levels and that the rule of law and good governance play an essentialrole in reducing such violations”. It thus urged governments andorganisations to reinforce cooperation to combat noncompliance withenvironmental laws towards achieving sustainable development. It alsoCcalled upon the Executive Director to assist with the “development andimplementation of environmental rule of law with attention at all levelsto mutually supporting governance features, including informationdisclosure, public participation, implementable and enforceable laws, andimplementation and accountability mechanisms including coordination

of roles as well as environmental auditing and criminal, civil andDadministrative enforcement with timely, impartial and independent disputeresolution.” Similarly, the first United Nations Environment Assembly in2014 adopted resolution 1/13, which calls upon countries “to work forthe strengthening of environmental rule of law at the international, regionaland national levels.”E

131. In 2016, the First World Environmental Law Congress,cosponsored by the International Union for Conservation of Nature andUN Environment, adopted the IUCN World Declaration on theEnvironmental Rule of Law[68] which outlines 13 principles for developingand implementing solutions for ecologically sustainable development:F

(i)Obligation to Protect Nature

(ii)Right to Nature and Rights of Nature

(iii)Right to Environment.

(iv)Ecological Sustainability and Resilience

(v)In Dubio Pro Natura

(vi)Ecological Functions of Property

67 UNEP

68 IUCN, Environmental Rule of Law. Available at ://www.iucn.org/commissions/world-

commission-environmental-law/wcel-resources/environmental-rule-lawH

(vii)Intragenerational Equity

(viii)Intergenerational Equity

(ix)Gender Equality

(x)Participation of Minority and Vulnerable Groups

(xi)Indigenous and Tribal PeoplesB

(xii)Non-regression

(xiii)Progression

132. Dhvani Mehta’s doctoral thesis[69] explores this idea ofenvironmental rule of law in the Indian context by analysing the functioningCof the three institutions of the government with regard to environmentallaw. It develops framework to assess whether the environmental ruleof law in India is being strengthened or weakened, through an analysisof the legal instruments of each of the institutions of government—statutes, executive orders, and judicial decisions. The indicators on theDbasis of which this is done are: a) the capacity of statutes to guidebehaviour (one of the organising principles of the rule of law) by clearlyarticulating goals or balancing competing interests; b) the ability of theexecutive to take flexible but reasoned decisions grounded in primarylegislation; and c) the ability of the judiciary to apply statutoryinterpretation and consistent standards of judicial review to give effectEto environmental rights and principles.

133. In 2015, the International community adopted the 2030 Agendafor Sustainable Development and its 17 SDGs[70]. These 17 goals are:

(i)Eradication of poverty;

(ii)Eradication of hunger;

(iii)Good health and well-being;

(iv)Quality education;

(v)Gender equality;

(vi)Clean water and sanitation;

(vii)Affordable and clean energy;

69 Dhvani Mehta, The Environmental Rule of Law in India, University of Oxford, 2017. Available at https://ora.ox.ac.uk/objects/uuid:730202ce-f2c4-4d2f-9575- 938a728fe82a

70 SDGs

[2019] 5 S.C.R.

A(viii)Decent work and economic growth;

(ix)Industry, innovation and infrastructure;

(x)Reduced inequalities;

(xi)Sustainable cities and communities;

B(xii)Sustainable consumption and production;

(xiii)Climate action;

(xiv)Protecting life below water;

(xv)Life on land;C

(xvi)Peace, justice and strong institutions; and

(xvii)Partnerships to achieve the goals.

134. Each of these goals has vital connection to the others.DTogether, they provide an agenda for human development: developmentin manner which accords adequate protection to the environment. TheUNEP recognises that the natural environment – forests, soils and wetlands – contributes to the management and regulation of water availabilityand water quality, strengthening the resilience of water sheds andEcomplements investments in physical infrastructure and institutional andregulatory arrangements for water access and disaster preparedness.

135. SDG 13 emphasises the urgent action required to combatclimate change and its impacts. This is based on the recognition thatextreme weather events such as heat waves, droughts, floods and tropicalFcyclones have aggravated the need for water management, pose threatto food security, increase health risks, damage critical infrastructure andinterrupt the provision of basic civil services.

136. The statistics on climate change indicate that:

(i) Between 1880 and 2012, average global temperatures haveGincreased by 0.85 degrees Celsius;

(ii) Between 1901 and 2010, as ocean expanded, the global averagesea level has risen by 19 centimeters;

(iii) Since 1990, global emissions of CO2 increased by almost 50 percent; and

(iv) Between 2000 and 2010, emissions grew at more rapid rate thaneach of the three decades preceding it.

137. In this backdrop, SDG 16 emphasises the need to protect,restore and promote sustainable use and management of terrestrial ecosystems and forests, combat desertification of river lands, prevent landdegradation and halt the loss of biodiversity. Terrestrial eco systemsprovide range of eco system services including the capture of carbon,maintenance of soil quality, provision of habitat for biodiversity,maintenance of water quality and regulation of water flow together withcontrol over erosion. Maintenance of eco systems is hence crucial toefforts to combat climate change, mitigate and reduce the risks of naturaldisasters including floods and landslides. In this backdrop, promotingenvironmental justice and ensuring strong institutions is quintessential topromoting peaceful and inclusive societies for sustainable development.SDG 16 therefore construes the promotion of the rule of law as intrinsictowards implementing multilateral environmental agreements andprogressing towards internationally agreed environmental goals.

138. On 2 October 2016, India ratified the Paris Agreement[71]on climate change which reaffirmed the goal of ‘limiting globaltemperature increase to well below 2 degrees Celsius, while pursuingefforts to limit the increase to 1.5 degrees above pre-industrial levels’.Article 5 of the Agreement encourages parties to conserve andenhance sinks and reservoirs of greenhouse gases, which includesforests. Under its Nationally Determined Contributions under the ParisAgreement, India made the following three commitments[72]:

(i) Greenhouse gas emission intensity of its Gross DomesticProduct will be reduced by 33-35% below 2005 levels by 2030;

(ii) 40% of India’s power capacity would be based on non-fossilfuel sources; and

(iii) An additional ‘carbon sink’ of 2.5 to 3 billion tonnes of CO2equivalent through additional forest and tree cover will be cre-ated by 2030.

71 Entered into force on 4 November 2016

72 India’s Intended Nationally Determined Contribution: Working Towards ClimateJustice at P. 29, submitted to the UNFCCC secretariat

A139. In March 2019, UNEP released the Global EnvironmentOutlook themed ‘Healthy Planet, Healthy People’.[73] Noting clear ‘linksbetween human health and the state of the environment’, the reportconcludes that clean-up and efficiency improvements are not adequateto pursue the 2030 Agenda and the SDGs and achieve the internationallyagreed environmental goals on pollution control. Instead, ‘transformativeBchange’ which reconfigures basic social and production systems andstructures is needed. This includes well-designed policies on institutionalframeworks, social practices, cultural norms and values along with theirimplementation, compliance and enforcement. In this view, systemicand integrated policy action[74] would ensure that “healthy environmentCis prerequisite and foundation for economic prosperity, human healthand well-being”[75]140. The rule of law requires regime which has effective,accountable and transparent institutions. Responsive, inclusive,participatory and representative decision making are key ingredients toDthe rule of law. Public access to information is, in similar terms,fundamental to the preservation of the rule of law. In domestic context,environmental governance that is founded on the rule of law emergesfrom the values of our Constitution. The health of the environment iskey to preserving the right to life as constitutionally recognized valueunder Article 21 of the Constitution. Proper structures for environmentalEdecision making find expression in the guarantee against arbitrary actionand the affirmative duty of fair treatment under Article 14 of theConstitution.

141. The 2006 notification must hence be construed as significantlink in India’s quest to pursue the SDGs. Many of those goals, besidesFbeing accepted by the international community of which India is part,constitute basic expression of our own constitutional value system.Our interface with the norms which the international community hasadopted in the sphere of environmental governance is hence as much areflection of our own responsibility in context which travels beyondGour borders as much as it is reflection of the aspirations of our ownConstitution. The fundamental principle which emerges from ourinterpretation of the 2006 notification is that in the area of environmentalgovernance, the means are as significant as the ends. The processes of73 Global Environment Outlook 6, UNEP, 4 March 201974 Global Environment Outlook 6, UNEP, 4 March 2019H75 Ibid

decision are as crucial as the ultimate decision. The basic postulate ofthe 2006 notification is that the path which is prescribed for disclosures,studies, gathering data, consultation and appraisal is designed in mannerthat would secure decision making which is transparent, responsive andinclusive.

142. Repeatedly, it has been urged on behalf of the State of Goa,MoEFCC and the concessionaire that the need for new airport isparamount with an increasing volume of passengers and consequentlythe flaws in the EIA process should be disregarded. The need for settingup new airport is matter of policy. The role of the decision makersentrusted with authority over the EIA process is to ensure that everyimportant facet of the environment is adequately studied and that theimpact of the proposed activity is carefully assessed. This assessment isintegral to the project design because it is on that basis that considereddecision can be arrived at as to whether necessary steps to mitigateadverse consequences to the environment can be strengthened.

143. In the present case, as our analysis has indicated, there hasbeen failure of due process commencing from the non-disclosure ofvital information by the project proponent in Form 1. Disclosures in Form1 are the underpinning for the preparation of the ToR. The EIA report,based on incomplete information has suffered from deficiencies whichhave been noticed in the earlier part of this judgment including the failureto acknowledge that within the study area contemplated by the Guidancemanual, there is presence of ESZs.

144. The EAC, as an expert body abdicated its role and functionby taking into account circumstances which were extraneous to theexercise of its power and failed to notice facets of the environment thatwere crucial to its decision making. The 2006 notification postulates thatnormally, the MoEFCC would accept the recommendation of the EAC.This makes the role of the EAC even more significant. The NGT is anadjudicatory body which is vested with appellate jurisdiction over thegrant of an EC. The NGT dealt with the submissions which were urgedbefore it in essentially one paragraph. It failed to comprehend the truenature of its role and power under Section 16(h) and Section 20 of theNGT Act 2010. In failing to carry out merits review, the NGT has notdischarged an adjudicatory function which properly belongs to it.

A145. In this view of the matter, neither the process of decisionmaking nor the decision itself can pass legal muster. Equally, as an arearequiring balance between development of infrastructure and theenvironment, we are of the view that appropriate directions should beissued by this Court, which would ensure that while the need for publicproject as significant as an international airport is duly factored into theBdecision making calculus, such development proceeds on consideredview of the importance of the prevailing state of the environment. Bearingin mind the need to bring about wholesome balance between thedevelopment of infrastructure of an airport and the preservation of theenvironment, we have come to the conclusion that time bound directionsCshould be issued.

146. Bearing in view the necessity to maintain balance betweenthe need for an airport and environmental concerns, we are of the viewthat it would be appropriate if the EAC is directed to revisit the conditionssubject to which it granted its EC on the basis of the specific concernsDwhich have been highlighted in this judgment. Such an exercise primarilyis for the EAC to carry out in its expert decision making capacity. TheEAC is entrusted with that function as an expert body. The role of judicialreview is to ensure that the rule of law is observed. Hence, we proposeby the directions which we will issue under Article 142 of the Constitution,to direct the EAC to revisit the conditions for the grant of an EC. WhileEdoing so, it would be open to the EAC to have due regard to the conditionswhich were incorporated in the order of the NGT and to suitably modulatethose conditions in pursuance of the liberty which we have preserved toit. To facilitate an expeditious decision, we propose to direct the EAC tocarry out this exercise in prescribed time schedule during which period,

Fthe EC shall remain suspended. We propose to direct that after theEAC has formulated its views, they shall be placed before this Court ina Miscellaneous Application in the present proceedings, so as to enablethe Court to pass final orders. The Miscellaneous Application may befiled either by the State of Goa as the project proponent or by theMoEFCC. We clarify that no other Court or Tribunal shall entertain anyGchallenge to the ultimate decision of the EAC and final orders thereonshall be passed by this Court in the present proceedings.

K Directions

147. We accordingly issue the following directions:

(i) The EAC shall revisit the recommendations made by it for thegrant of an EC, including the conditions which it hasformulated, having regard to the specific concerns which havebeen highlighted in this judgment;

(ii) The EAC shall carry out the exercise under (i) above within aperiod of one month of the receipt of certified copy of thisorder;

(iii) Until the EAC carries out the fresh exercise as directed above,the EC granted by the MoEFCC on 28 October 2015 shallremain suspended;

(iv) Upon reconsidering the matter in terms of the presentdirections, the EAC, if it allows the construction to proceedwill impose such additional conditions which in its expert viewwill adequately protect the concerns about the terrestrial ecosystems noticed in this judgment. The EAC would be at libertyto lay down appropriate conditions concerning air, water, noise,land, biological and socio-economic environment;

(v) The EAC shall have due regard to the assurance furnished bythe concessionaire to this Court that it is willing to adopt andimplement necessary safeguards bearing in mind internationalbest practices governing greenfield airports;

(vi) We grant liberty to the State of Goa as the project proponentand the MoEFCC, as the case may be, to file the report of theEAC before this Court in the form of MiscellaneousApplication so as to facilitate the passing of appropriate ordersin the proceedings; and

(vii) No other Court or Tribunal shall entertain any challenge tothe report that is to be submitted before this Court by the EACin compliance with the present order.

148. Before we part with the present case, we consider it appro-priate to record finding on the bona fides of the appellants before thisCourt. It was briefly urged by the respondents that the appellants haveinvoked the jurisdiction of this Court based on personal agenda andconsequently, the present appeal is liable to be dismissed. This argumentcannot be accepted. We accept the submission of Ms Shenoy, learnedcounsel appearing on behalf of the appellants, that the non-considerationof vital issues by the EAC has led to the invocation of the statutoryremedy available to them under Section 22 of the NGT Act 2010. Vague

Aaspersions on the intention of public-spirited individuals does not consti-tute an adequate response to those interested in the protection of theenvironment. If court comes to the finding that the appeal before itwas lacking bona fides, it may issue directions which it thinks appropri-ate in that case. In cases concerning environmental governance, it is aduty of courts to assess the case on its merits based on the materialsBpresent before it. Matters concerning environmental governance con-cern not just the living, but generations to come. The protection of theenvironment, as an essential facet of human development, ensures sus-tainable development for today and tomorrow.

149. The learned Attorney General for India has presented theCsubmissions before this Court with his characteristic sense of objectivityand candour. We wish to record our appreciation for the able assistancerendered to this Court by Ms Anitha Shenoy, learned counsel for thepetitioner, Mr ANS Nadkarni, learned Additional Solicitor General forthe MoEF, Mr Parag P Tripathi, learned senior counsel and Ms AasthaDMehta, learned counsel for the concessionaire.

150. The appeal is allowed in the above terms. There shall be noorder as to costs.

Civil Appeal No 1053 of 2019

E151. This appeal is also disposed of in the same terms, conditions,directions and observations as in Civil Appeal No 12251 of 2018.

Kalpana K. Tripathy

Appeals disposed of.