HANUMAN LAXMAN AROSKAR v. UNION OF INDIA

A The Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J. Index A Introduction B B Submissions C Scheme of the 2006 notification and the Guidance manual for Airports C.1 EIA process C C.2 Guidance manual for airports D Forests E Ecologically Sensitive Zones (ESZs) F Sampling Points D F.1 Air Quality F.2 Water Quality F.3 Noise Quality F.4 Flora and Fauna E F.5 Felling of Trees G Public Consultation H Appraisal by the EAC I The appellate jurisdiction of the NGT: the requirement F of a merits review J Environmental Rule of Law K Directions A Introduction G

1Copy pinpoint1. An appeal was filed before the Principal Bench of the National Green Tribunal1 at New Delhi challenging the grant of an Environmental Clearance2 for the development of a greenfield international airport at Mopa in Goa. The NGT, by its judgment dated 21 August 2018 came to 1 NGT H 2 EC

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the conclusion that the present case “is not a case where the project compromises with the environment”. While affirming the EC, the NGT came to the conclusion that “further safeguards for environmental protection need to be incorporated”. The NGT, accordingly, proceeded to formulate additional conditions, while affirming the grant of the EC.

2Copy pinpoint2. Village Mopa is situated in North Goa, in close proximity to the inter-state boundary which the state shares with Maharashtra. The site of the proposed airport lies at a 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 a tabletop plateau which rises to a height of 150 to 180 meters above mean sea level and is surrounded by steep slopes. The soil is predominantly of a C laterite character. The airport which presently serves the region is situated at Dabolim, Goa.

3Copy pinpoint3. Since the airport at Dabolim is saturated in terms of its capacity for annual air traffic, the state government initiated a process in 1997 to commission studies and project reports for a proposed international airport, D which include the following: (i) A project report prepared by Engineers and Management Associates, Spain in 1997; (ii) A preliminary technical feasibility study prepared by the Airports E Authority of India in May 1998; (iii) A final feasibility report for the proposed airport at Goa prepared by the International Civil Aviation Organisation, Montreal, Canada in August 2005; (iv) A Goa dual airport study prepared by the International Civil Aviation F Organisation in August 2007; (v) A report of a Six Member Committee chaired by the Chief Minister of Goa in 2008 to “look into all aspects relating to construction of an international airport at Mopa, Goa”; and (vi) A document styled as the “Airport Master Plan” dated 10 February G 2012, submitted to the Public Private Partnership3 cell of the Government of Goa by Ammann & Whitney, USA envisaging: “consultancy services for preparation of master plan, preliminary

3 PPP H

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A project report, tender document and project management services for the proposed greenfield airport and commercial/industrial and allied development near Mopa in the State of Goa”.

4Copy pinpoint4. On 1 May 2000, the Government of India communicated its approval for the setting up of an airport at Mopa and for the closure of the existing airport for civilian operations on the commissioning of the new airport. Subsequently, on 1 July 2010, the earlier decision was modified to allow for the continuation of civilian aircraft operations at Dabolim even after the commissioning of the new airport. The process of land acquisition commenced in 2008 under the Land Acquisition Act,

1894. Originally, the land area anticipated for the development of the project was pegged at 4,500 acres. During the pendency of project appraisals, the area required for the proposed airport stood reduced to 2,271 acres.

5Copy pinpoint5. On 14 September 2006, the Government of India in the Ministry of Environment and Forests4 issued a notification5 mandating a prior EC D for Category ‘A’ projects (specified in the Schedule) by the Union Government and for Category ‘B’ projects at the state level by the State Level Environment Impact Assessment Authority6. Following the 2006 notification, the MoEF placed an EIA Guidance Manual for Airports7 in the public domain in February 2010. The stages of scoping, public E consultation and appraisal, leading up to the grant of the EC for the proposed airport are governed by the express terms of the 2006 notification.

6Copy pinpoint6. In March 2011, the State of Goa, as the project proponent submitted Form 1 as stipulated in the 2006 notification to the MoEF. On F 8 March 2011, the State of Goa applied for Terms of Reference 8 to the MoEF. The ToR were finalized on 11 and 12 May 2011 by the Expert Appraisal Committee9 constituted under the 2006 notification. On 1 June 2011, the MoEF issued the ToR for the preparation of the Environmental Impact Assessment10 report. The ToR was valid for a

G 4 MoEF, later renamed as MoEFCC in 2014 5 S.O. 1533 (‘2006 notification’) 6 SEIAA 7 Guidance manual 8 ToR 9 EAC 10 EIA H

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period of two years until 31 May 2013. On 22 November 2012, the A Government of Goa revised the project boundary by decreasing the project area from 4,500 acres to 2,271 acres. At its meetings on 28 and 29 January 2013, the EAC recommended an amendment to the ToR as requested by the state government and granted an extension to the validity of the ToR until 31 May 2014. On 19 June 2013, the MoEF communicated B its approval for the amendment of the ToR and for the extension of its validity.

7Copy pinpoint7. On 3 October 2014, the state government floated a tender for the development of a greenfield international airport project on a PPP basis. On 20 October 2014, the Directorate of Civil Aviation, Government of Goa submitted a draft EIA report to the Goa State Pollution Control C Board, requesting it to initiate steps to conduct a public hearing. A public hearing was conducted at the project site on 1 February 2015. The EAC, at its meetings held on 9-11 March 2015, recommended an extension of the validity of the ToR for another year ending on 31 May

8Copy pinpoint8. On 20 May 2015, the State of Goa submitted a final EIA report to the MoEFCC, seeking the grant of an EC for the project. On 29 May 2015, the MoEFCC communicated its approval for extending the validity of the ToR until 31 May 2015. Between 24 and 26 June 2015, the EAC, at its 149th meeting, deliberated on the EIA report and sought additional E information from the project proponent, inter alia, on: “10 years data regarding rainfall in the area; Drawing of traffic circulation plan for smooth circulation of Traffic in the area; F Minimum 20% energy conservation measures should be adopted in incorporating provisions for use of LED, star rated AC’s, and a revised energy conservation plan to be submitted; Measures taken to comply with the CPCB guidelines formulated for noise pollution control in Airport area to be submitted.” G In the meantime, a representation was submitted by the Federation of Rainbow Warriors, one of the appellants before this Court to the EAC. The EAC, at its 151st meeting held on 7-9 September 2015,

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A deliberated upon the representation and sought a clarification from the project proponent on the issues raised. On 28 September 2015, the project proponent submitted its reply to the representation. The EAC, at its 152nd meeting on 20 October 2015, sought a further clarification from the project proponent on the reply submitted by the Federation of Rainbow Warriors. At that meeting, the EAC recommended the grant of an EC B for the project.

9Copy pinpoint9. On 28 October 2015, the MoEFCC, as the regulatory authority under the 2006 notification for Category ‘A’ projects, communicated its approval for the grant of an EC. Following the grant of the EC, the tender process which had been initiated on 3 October 2014 was C concluded on 26 August 2016. Consequent to the opening of the final bids, a technical scrutiny, evaluation coupled with pre-bid meetings, deliberations on the draft concession agreement and other required steps, GMR Goa International Airport Limited11 was awarded the contract on a revenue sharing of 36.99 percent to the State of Goa. On 8 November D 2016, the concession agreement was executed between the Government of Goa and GGIAL for the development and operation of the airport with the concession period of 40 years. Upon financial closure, the three-year period for the construction of the airport commenced on 4 September 2017. The target date for the commissioning of the first phase of the project is 3 September 2020. E

10Copy pinpoint10. The grant of the EC was challenged before the Western Zonal Bench of the NGT12 by the Federation of Rainbow Warriors. Hanuman Laxman Aroskar also filed an appeal13 before the Western Zonal Bench of the NGT. These appeals were subsequently renumbered14 before the Principal Bench of the NGT at New Delhi. On 7 November 2017, the F NGT issued an ad-interim order restraining the cutting or felling of trees in the area designated as the site of the proposed airport. On 22 November 2017, the order of restraint was modified on the statement of the 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 authority G for a 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 H

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remedies. On 6 February 2018, the Deputy Conservator of Forests A granted permission for felling 21,703 trees at the airport site. The appellate authority under the Goa, Daman and Diu Preservation of Trees Act 198415 dismissed the appeal on 7 March 2018.

11Copy pinpoint11. On 8 March 2018, the High Court of Judicature at Bombay at its seat at Goa set aside the order of the Deputy Conservator of Forests B and remanded the matter to be heard by the Principal Chief Conservator of Forests. On 2 April 2018, the Principal Chief Conservator of Forests stipulated several conditions for the cutting and the felling of trees at the site of the airport including: (i) enumeration of trees; and (ii) the plantation of ten times the number of trees felled. Upon being moved in a Public C Interest Litigation16, the High Court by its order dated 25 April 2018 allowed the exercise of enumeration to be carried out. As a result, 54,676 trees were enumerated, including the 1,548 trees which had been felled earlier in terms of the order dated 6 February 2018 of the Deputy Conservator of Forests. On 13 January 2018, the High Court issued final directions in the PIL directing the State of Goa to approach the D NGT seeking permission for felling and cutting trees. The state was directed to carry out the cutting and felling of trees only after prior permission was granted by the NGT.

12Copy pinpoint12. A Miscellaneous Application17 was filed by the State of Goa before the NGT on 2 July 2018 seeking permission for the felling of E trees. By its judgment dated 21 August 2018, the NGT disposed of both the appeals and the Miscellaneous Application filed by the State of Goa, upholding the EC and imposing additional conditions to safeguard the environment. This Court has been informed that the felling of trees was initiated on 3 September 2018 and completed on 14 January 2019. F Assailing the judgment of the NGT, two appeals have been filed before this Court: one by Hanuman Laxman Aroskar18 and the other by the Federation of Rainbow Warriors19.

13Copy pinpoint13. On 18 January 2019, notice was issued in the appeals and an order of status quo was passed by this Court. The appeals were admitted for hearing and final disposal. G

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 H

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A B Submissions

14Copy pinpoint14. We have heard Ms Anitha Shenoy, learned counsel appearing on behalf of the appellants. Mr K K Venugopal, learned Attorney General20 for India appeared on behalf of the State of Goa. Mr Atmaram S Nadkarni, learned Additional Solicitor General21 of India appeared on behalf of the MoEFCC. Mr Parag P Tripathi, learned Senior Counsel and Ms Aastha Mehta, learned counsel appeared on behalf of the Concessionaire.

15Copy pinpoint15. Ms Anitha Shenoy, learned counsel appearing on behalf of the appellants urged that the EIA report which is carried out under the terms of the 2006 notification is a tool to evaluate the environmental consequences of a proposed activity. The proposed international airport, being a Category ‘A’ project, is governed by the second, third and fourth stages of scoping, public consultation and appraisal respectively envisaged under the 2006 notification. In addition to the 2006 notification, the Guidance manual furnishes a significant sign post in the procedure envisaged prior to the grant of an EC. The project proponent is required to submit Form 1 complete with relevant details of the proposed project and the status of the environment. The ToR which is finalized by the EAC is founded on the disclosures which are made by the project proponent. In this backdrop, the principal submissions urged by the appellants before the Court are as follows: (i) There were material concealments by the project proponent in failing to disclose that as many as 54,676 trees were required to be felled. Form 1, which was submitted by the project proponent, was silent in regard to the number of trees required to be felled. F The final EIA report, while dealing with the biological environment in clause 2.1.5 contains the following statement: “2.1.5 Biological environment Construction phase Impacts (Significance-Medium) G The area acquired for proposed airport has only few trees, mainly bushes. These will be cleared during site preparation.” Contrary to the above assertion is the statement contained in the counter affidavit filed by the State of Goa: 20 AG H 21 ASG

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“..I say that the permissions which have been obtained for cutting of 54,676 trees have been granted by the concerned authorities in terms of the relevant statutory provisions and after laying down various conditions. I say that the context in which it was mentioned as sparse trees has to be seen from the huge area of the land. The land being 2133 acres, it would proportionally work out to about 25 trees in an area of 1 acre, i.e. 4000 sq. metres., which is one tree in an area of about 160 sq. metres.” The submission urged by the appellants is that the purpose of the EIA report is to form an assessment of the state of environment as it exists in reality. The project proponent is duty bound to make a proper disclosure and the highest level of transparency is required. Accompanying C Form 1 is a declaration of the project proponent that the EC will be liable to be rejected in the event of a suppression or mis-statement of material facts. The State of Goa filed a Miscellaneous Application before the NGT seeking permission to fell around 55,000 trees. This is a clear indicator that the original statement by the project proponent in Form 1 D as well as in clause 2.1.5 of the EIA report that only a few trees were required to be felled is factually incorrect; (ii) There was a concealment of Ecologically Sensitive Zones22 in the State of Maharashtra. In terms of the Guidance manual, primary data through measures and full surveys; and secondary data from secondary sources have to be collected. Primary data includes the study area within 10 kilometres radius from the Aerodrome Reference Point23 and covers one season other than the monsoon. Secondary data includes data collected within an aerial distance of 15 kilometres for the parameters which are specifically mentioned in column 9 (III) of Form 1 of the 2006 notification and covers one full year. In the present case, while furnishing details of ESZs falling within an aerial distance of 15 kilometres, the EIA report stipulates that there were none in the State of Maharashtra. The State of Goa has also averred in its counter that there are no ESZs within a radius of 15 kilometres from the ARP and that there are no reserve forests in that radius. After hearings had begun before the NGT, a letter was addressed by the Principal Chief Conservator of Forests on 12 February 2018 to the Director of 22 ESZ 23 ARP H

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A Civil Aviation stating that a list of reserved forests had been notified under Section 20 of the Indian Forest Act 1927 in Sawantwadi Forest Division of Sindhudurg district in Maharashtra which was obtained from the working plan of Sawantwadi Forest Division (2014-15 to 2023-24). The letter stated that there was no reserved forest notified under Section 20 of the Indian Forest Act 1927 in B the Sawantwadi Forest Division, within a radius of 15 kilometres from the ARP. On this aspect, it was urged on behalf of the appellants that restrictions come into force as soon as a notification under Section 4 of the Indian Forest Act 1927 is issued. Under the Forest Conservation Act 1980, any use of forest land for non- C forest purposes requires prior permission of the Union Government, as elaborated in the judgment of this Court in TN Godavarman Thirumalpad v Union of India24 (“Godavarman”). The purpose of elucidating forest areas which fall within an aerial distance of 15 kilometres from the project site is to enable an assessment to be made of the impact of the project on forested areas. Failure to D mention forests in the State of Maharashtra was a significant omission in the EIA report; (iii) Form 1 requires a disclosure of the details of ESZs within an aerial distance of 15 kilometres of the project boundary. The EIA report rests content in stating that Pernem taluka is not included in an E ESZ by the High Level Working Group25 constituted under the Chairmanship of Dr K Kasturirangan, Member (Science), Planning Commission26. The project proponent, in response to the disclosures required for areas which are important or sensitive for ecological reasons – wet lands, water sources or other water bodies, costal zone, biospheres, mountains and forests, left the required details blank. In this context, it was urged by the appellants that the purpose of the EIA report was not only to make an assessment of the project site but also of an area surrounding the project site within an aerial distance of 15 kilometres. The HLWG recognized that there were ESZs. In the present case, several villages are situated at a bare distance of 1.5 kilometres from the project site in Maharashtra. Yet, there was no disclosure of this fact and the EIA report merely recorded that Pernem taluka is not included in an ESZ; 24 (1997) 2 SCC 267 25 HLWG H 26 Kasturirangan report

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(iv) The State of Maharashtra comprises nearly 40 per cent of the A study area. Yet, there was no sampling of soil, air and water in Maharashtra. Sampling was carried out in 2011 and 2014-15 in Goa but no sampling site is situated in Maharashtra. In the absence of baseline data generated with regard to environmental parameters in the State of Maharashtra surrounding the project site, the EIA B report suffers from a gross deficiency; and (v) The EIA report is grossly deficient in failing to notice wildlife in the surrounding forests. On the contrary, the appellants have relied on a rapid survey conducted to assess the presence of various mammals in the study area. Moreover, no avi-faunal study was done. C

16Copy pinpoint16. Apart from the above submissions, Ms Shenoy has urged that the stages of public consultation and appraisal under the 2006 notification are crucial to the assessment process. As far as the public consultation is concerned, the draft EIA is given before the hearing. During the course of the public consultation, as many as 70 persons spoke, 1,150 D representations were received and 1,586 persons are stated to have participated. The range of concerns expressed during the course of the public consultation covered a variety of environmental issues. Amongst them was the presence of perennial springs, the porous nature of the laterite plateau where permeation is a source of drainage for water collection and the existence of cashew plantations on which the livelihood of the local residents depends. Under the 2006 notification, the State Pollution Control Board27 was required to collate the issues raised and the response of the project proponent, before submitting required documents to the EAC. Before the EAC, the project proponent in its presentation, indicated that the objections were only about employment opportunities. The project proponent clearly failed in its duty to appraise the EAC about serious environmental concerns which were raised during the course of the public consultation.

17Copy pinpoint17. On the aspect of appraisal, it has been urged that the minutes of the EAC meeting recommending the grant of an EC contain, as learned counsel for the appellants submitted, “not a line on the EIA report”. The EAC was required to state its reasons for recommending the grant of an EC in terms of the 2006 notification. The reasons must indicate that 27 SPCB H

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A there was an appraisal by the EAC. In the present case, the recommendations of the EAC are based on vague considerations such as: (i) larger public interest; (ii) non-concealment of the facts by the project proponent; and (iii) the delay which had occurred in the process. The submission urged is that the EAC, as an expert body, has failed to furnish reasons; acted on the basis of considerations which are not germane to the exercise of its functions and failed to apply its mind to relevant considerations including the environmental consequences of the project.

18Copy pinpoint18. Finally, it has been submitted that under Section 16(h) of the National Green Tribunal Act 2010,28 an appellate remedy is provided against the order granting EC. By virtue of the provisions of Section 20, the NGT is under a mandate to apply the principles of sustainable development, the precautionary principle and the polluter pays principle while passing any order, decision or making the award. An appeal lies before this Court under Section 22 from an order, decision or award of the Tribunal on a substantial question of law as specified in Section 100 of the Code of Civil Procedure, 1908. The NGT, by virtue of its adjudicatory authority under Section 16(h), is entrusted with a duty to conduct a merits review. The failure to consider materials on a vital issue constitutes a substantial question of law as does the failure to consider vital issues in the proceedings before it. In the present case, the E Tribunal has merely relied on the process conducted by the EAC and its recommendations, abdicating its own jurisdiction to conduct a merits review.

19Copy pinpoint19. Mr ANS Nadkarni, learned ASG appearing on behalf of the MoEFCC urged that the EIA report, besides dealing with environmental concerns, addresses the impact of the project during both the phases of construction and operation. The EAC is sourced from experts from outside the government. The airport project was conceived in 1996; consultants were appointed and three sites were initially short-listed. It was in 2011 that the ToR were sought by and given to the project proponent by the EAC. The draft EIA was placed for public consultation in 2014 and the final EIA report came to be submitted in 2015. The EAC deferred consideration of the EIA report on three occasions, including among them to consider the representation filed by the Federation of Rainbow Warriors. 28 NGT Act 2010 H

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20Copy pinpoint20. Countering the submission of the appellants on the non- A disclosure of reserved forests in Form 1, the learned ASG urged the following submissions: (i) The submission of the appellants was not raised either in the public hearing or in the grounds urged before the NGT, but was addressed in the written submissions filed before the NGT and when a map of the Surveyor General of India was produced; (ii) Table 2.1.5 of the EIA report states that there is no reserved forest in the State of Maharashtra while delineating ESZs within 15 kilometres from the project boundary. The report proceeded on the plain meaning of the Indian Forest Act 1927 according to which it is only upon the issuance of a notification under Section 20 that a reserved forest is declared; (iii) As a matter of fact, within the area of 15 kilometres from the project boundary in the State of Maharashtra, no reserved forest stands declared under Section 20(2) of the Indian Forest Act 1927; D (iv) The decision in Godavarman (supra) which adopts the ordinary meaning of the expression ‘forest’ is site specific: the MoEFCC follows it scrupulously even if there is a notification under Section 4 while considering the diversion of forest land for non-forest uses. The decision in Godavarman (supra) has also been explained in the decision of this Court in Construction of Park at Noida near Okhla Bird Sanctuary Anand Arya v Union of India29 (‘Okhla Bird Sanctuary’); (v) The Guidance manual notices that environmental facets which have to be considered in relation to airport development are categorized 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 waste management. Baseline data of these environmental facets is ascertained through primary data extending to one season while secondary data extending to a year is gathered in terms of the G Guidance manual and the distance specified in paragraph 4.1; and

29 2011(1) SCC 744 H

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A (vi) The EIA report records that the surrounding land use of the airport site is predominantly forest land. Land use and land cover specifically for a 10 kilometre radius from the airport site in Maharashtra is also set out in Chapter II of the EIA report, which indicates a reference to the forest area. Annexure IX of the EIA report incorporates land use with land cover maps, both for Goa B and Maharashtra in the 10 kilometre radius, which includes forested areas within the State of Maharashtra; Annexure X of the EIA report elucidates surface water bodies both in Maharashtra and in Goa in the radius of 10 kilometres while Annexure XI provides a hydro-geo-morphological map of Goa and Maharashtra. In other C words, it was urged that: (i) a legally designated forest under the Indian Forest Act 1927 requires a notification under Section 20; however, at the same time, (i?i) the EIA report contains a clear disclosure of the presence of forest areas in both the States of Goa and Maharashtra within a radius of 10 kilometres including areas of dense forest. D

21Copy pinpoint21. As regards the lack of sampling points in Maharashtra, the learned ASG urged that while all the six sampling points for ambient air quality within 10 kilometres of the study area were in Goa, the air quality which was being tracked was within the stipulated radius and was not confined to the State of Goa. Similarly, in studying the water environment, the ground water quality was measured at four locations in Goa within 10 kilometres of the study area. As regards the monitoring of noise, nine sampling points were chosen within the State of Goa in accordance with the Central Pollution Control Board30 guidelines. The monitoring of noise environment, both at the construction and operational phases, has similarly been dealt with in the EIA report. The learned ASG urged that the choice of the sampling locations was not arbitrary: though the sampling points were not in Maharashtra, data required was tracked across a radius of 10 kilometres from the ARP which also included the State of Maharashtra.

22Copy pinpoint22. Dealing with the submission that no avi-faunal study was carried out, it was urged that the EIA report specifically deals with this aspect in paragraph 4.6 of Chapter II which elucidates that 385 species of plants belonging to 88 plant families were documented and identified in the 10 kilometres radial distance of the proposed project site. The study similarly 30 H CPCB

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dealt with faunal diversity. As many as 86 species of birds were observed A in the course of the avi-faunal study, which has been elucidated in table 4.17 of the EIA report.

23Copy pinpoint23. On the issue of ESZs, the learned ASG urged that there is a specific reference to the Kasturirangan report, under the heading of ‘Environmentally Sensitive Zones’ in Chapter IV of the EIA report. The B EIA report notices that the proposed airport site falls in Pernem taluka of North Goa which has not been included in the ESZs mapped by the HLWG. Annexure XVI of the EIA report is a notification dated 13 November 201331 of the MoEF, which contains a list of villages (state, district and taluk-wise) identified by the HLWG. Paragraph 9 of the 2013 notification which has been issued under Section 5 of the C Environment (Protection) Act 1986 specifies the categories of new and expansion projects which are prohibited in the ESZ. The proposed airport project does not fall within the prohibited category. Moreover, since the site of the proposed airport was not included in an ESZ, the prohibition imposed by the 2013 notification had no application. D

24Copy pinpoint24. The learned ASG has also urged that the report of the HLWG on Western Ghats, submitted on 15 April 2013, stipulates certain development restrictions in ESZs which are as follows: (i) A complete ban on mining, quarrying and sand mining; E (ii) A complete ban on thermal power projects while hydro power projects may be permitted subjected to conditions; (iii) A strict prohibition on ‘red category’ industries; (iv) A prohibition on building and construction projects of 20,000 square metres; F (v) All other infrastructure and development projects/schemes would be subject to the grant of an EC as Category ‘A’ projects under the 2006 notification; and (vi) All development projects within 10 kilometres of the Western Ghats ESZ and requiring ECs shall be regulated in accordance with the G 2006 notification. Based on the above recommendation of the HLWG, it was submitted that the proposed airport project, which falls under Category 31 2013 notification H

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

25Copy pinpoint25. The submission that the EAC had failed to apprise the environmental consequences of the project and should have applied its mind to environmental concerns has been countered by relying on the B Minutes of the meetings conducted by the EAC: (i) At its 149th meeting held on 26 June 2015, the EAC sought additional information on six distinct aspects upon receiving the presentation by the project proponent; (ii) At its 151st meeting held on 7-9 September 2015, the EAC took note of a representation filed by the Federation of Rainbow Warriors and deferred further consideration of proposal for the grant of EC. The project proponent was called upon to submit a response to the issues raised in the representation; and (iii) At its 152nd meeting held on 20 October 2015, the EAC dealt with clarifications issued by the project proponent to the concerns raised by Rainbow Warriors and proceeded to recommend the project for the grant of an EC subject to the stipulated conditions. On 28 October 2015, the EC was granted by the Union Government. On the basis of the procedure which was followed by the E EAC, the following submissions have been urged: (i) The application of mind by the EAC can be inferred and seen from the record; (ii) Where considered necessary, the EAC sought information outside the EIA report; F (iii) Having appraised the EIA report, the EAC imposed site specific conditions; and (iv) The EAC consists of experts in the field and once it has been shown that all relevant considerations were borne in mind, this G Court must give due deference to their view.

26Copy pinpoint26. Mr. K K Venugopal, learned Attorney General, appearing on behalf of the State of Goa, urged the following submissions: (i) The proposed project for setting up an international airport at Mopa has been on the drawing board for nearly two decades. H

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Successive studies were commissioned to assess the feasibility of A the project from diverse sources, both within and outside government. This includes studies by private organisations as well as reports by the Airports Authority of India, the International Civil Aviation Organisation and the six member Committee constituted by the state government under the auspices of the Chief Minister; B (ii) The setting up of an airport is an imminent need, since the existing airport at Dabolim has reached a saturation point and is unable to cater to the growing volume of passenger traffic into Goa; (iii) Tourism, it has been urged, is a major source of revenue for the state, with the banning of mining activities. A balance must be C drawn between development and the environment. A distinction needs to be drawn between overwhelming environmental objections which are not reversible and incapable of amelioration, and cases such as the present where the environmental consequences of project are capable of being countered by suitable measures; and D

(iv) Objections primarily based on a defect in procedure should not be sufficient to quash a project conceived in public interest with vast benefits for the development of the state and for the members of the travelling public. It was urged that there was no major envi- ronmental objection and the challenge to the EIA report is not E substantial enough to overcome the interests of three million pas- sengers. The expected inflow is anticipated to reach 30 million in 2030.

27Copy pinpoint27. On the aspect of the felling of trees, the learned AG submitted that following the order of the Bombay High Court, the Principal Chief F Conservator of Forests passed an order on 2 April 2018 providing for: (i) enumeration of all trees covered by the project site; (ii) issuance of tree felling permission by the Deputy Chief Conservator of Forests; and (iii) plantation of ten times the number of trees felled under the supervision of the forest department. Thereafter, when the High Court was moved G in a PIL, an order was passed on 13 June 2018 that the grant of permission for felling trees and the actual felling of trees will be carried out only after the NGT granted permission in the pending proceedings. A Miscellaneous Application seeking permission for the felling of trees was instituted before the NGT. In its final order dated 21 August 2018, H

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A the NGT disposed of both the appeals as well as the Miscellaneous Application. Moreover, the NGT has specifically dealt with the felling of trees in the course of its distinction.

28Copy pinpoint28. On behalf of the concessionaire, Mr Parag P Tripathi, learned Senior Counsel and Ms Astha Mehta, learned counsel urged that upon the grant of an EC, a concession agreement was executed by it with the State of Goa on 8 November 2016. Possession of the project site was handed over on 4 September 2017 and work commenced on 3 March

2018. The indicative capital for Phase 1 of the development is Rs 1,900 crores while the cost of the entire project is likely to be Rs 3,000 crores. The State of Goa has incurred a total expenditure of Rs 240 crores for land acquisition, rehabilitation, road widening, consultancy and other related aspects while the concessionaire has thus far incurred an expenditure of Rs 230 crores as on 18 January 2019. 14.06 per cent of the project work has been completed and a manpower consisting of 1500 persons has been mobilized at the site together with plant and machinery.

29Copy pinpoint29. The concessionaire has stated that it has tied up with a consortium of banks and the servicing of the loans is linked to project milestones. As on 18 January 2019, the major works in progress include: (i) site preparation and earth works such as excavation and filling up of runways, taxiways, aprons and parking bays; (ii) PTB-foundations and column works; and (iii) excavation of the foundations for the ATC building. The concessionaire has submitted that apart from the plantation of ten trees for every single tree which has been felled, the forest department identified about 500 trees for transplantation, which process is being carried out. In this background, it has been submitted that the project should not be interdicted. The concessionaire, it has been urged, is committed to the completion of the project which accords with all the approvals that have been received.

30Copy pinpoint30. The rival submissions now fall for our consideration. C Scheme of the 2006 notification and the Guidance manual for Airports C. 1 EIA Process

31Copy pinpoint31. The objective of the EIA process is to ensure that environmental and developmental concerns are appropriately balanced on the basis of the most accurate information available. H

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

32Copy pinpoint32. The Constitution (Forty-second Amendment) Act 1976, which came into force with effect from 3 January 1977, inserted Article 48A to the Constitution which mandates that the State shall endeavor to protect and improve the environment and safeguard the forests and wildlife of the country. Article 51A(g) of the Constitution places a corresponding duty on every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Following the decisions taken at the United Nations Conference on the Human Environment held at Stockholm32 in June 1972 in which India participated, Parliament enacted the Environment Protection Act 1986 to protect and improve the environment and prevent hazards to human beings, other living creatures, plants and property. C

33Copy pinpoint33. On 27 January 1994, the MoEF, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of Section 3 of the 1986 Act read with clause (d) of sub-rule 3 of rule 5 of the Environment (Protection) Rules, 1986, issued a notification33 imposing restrictions and prohibitions on the expansion and modernisation of any D activity or new project unless an EC was granted under the procedure stipulated in the notification. Under the notification, any person undertaking a new project or expanding and modernizing an existing project was required to submit an application to the Secretary, Ministry of Environment and Forests, New Delhi. E

34Copy pinpoint34. The application, which was to be made in accordance with the Schedule provided in the notification was to be submitted with a project report which included with it an EIA Report, an Environment Management Plan34 and the details of a public hearing which had been carried out in accordance with guidelines issued by the Central Government from time to time. Limited exceptions to the public hearing process and the submission of an EIA were provided.

35Copy pinpoint35. MoEF as the Impact Assessment Agency35 would then evaluate the application and reports submitted. The IAA was empowered to constitute a committee of experts, if necessary, which would have a right of entry into and inspection of the site during or after the commencement of the preparations relating to the project. The IAA 32 Stockholm Conference 33 S.O. 60(E) (‘1994 notification’) 34 EMP 35 IAA H

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A would prepare a set of recommendations based on the documents furnished by an applicant within 90 days from the receipt of the documents and a decision would be conveyed to the applicant within 30 days thereafter. The EC granted was valid for a period of five years and a successful applicant was required to submit half-yearly reports to the IAA. Concealing factual data or submitting false or misleading information B would make the application liable for rejection and would lead to the cancellation of any EC36 granted on that basis.

36Copy pinpoint36. The 1994 notification was amended to reflect the growing protection accorded to the environment.

37Copy pinpoint37. On 14 September 2006, MoEF released another notification37 in supersession of the previous notification.

38Copy pinpoint38. The 2006 notification directed thus: “…on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of D existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact E Assessment Authority, duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification.”

39Copy pinpoint39. There are significant differences between the 1994 notification and the 2006 notification. They are: F (i) The 2006 notification categorically states that an EC must be granted by the regulatory authority prior to the commencement of any construction work or preparation of land; (ii) The 2006 notification divides all projects into Category ‘A’ and Category ‘B’ projects. The MoEFCC continues to regulate projects G of a large scale (Category ‘A’), while the SEIAA regulate comparatively smaller projects (Category ‘B’); (iii) Under the 1994 notification, an applicant was required to submit an application along with all reports including the EIA report at the 36 EC H 37 S.O. 1533 (‘2006 notification’)

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

time of the application. Under the 2006 notification, prior to the preparation of the EIA report by the applicant, the concerned authority formulates comprehensive ToR on the basis of the information furnished by the applicant addressing all relevant environmental concerns. This forms the basis for the preparation of the EIA report. A pre-feasibility report must also be submitted with the application unless exempted in the notification. Under the 2006 notification, a draft EIA is first prepared and it is only after the public consultation process that a final EIA report must be prepared addressing all the concerns raised during public consultation; (iv) The 2006 notification stipulates the creation of a regulatory body at the state level – SEIAA comprising members with expertise in the field of environmental laws which is charged with granting ECs for Category ‘B’ projects; (v) Under the 1994 notification, the final approval was granted by the IAA. Under the 2006 notification, though the final regulatory approval is granted by the MoEFCC or the SEIAA, as the case may be, the approval is to be based on the recommendations of the EAC functioning in the MoEFCC or the State Expert Appraisal Committees38 which are constituted for that specific purpose; (vi) Under the 2006 notification, the application can be rejected by the regulatory authority on the basis of the recommendation of the EAC or the SEAC, as the case may be, at the preliminary stage itself, prior to public consultation; and (vii) Under the 1994 notification, the public hearing process was overseen by the State Pollution Control Boards39 which would constitute a public hearing panel for the purpose. Under the 2006 notification, the public consultation process is expanded to include the receipt of written comments from concerned persons. The public hearing component was to be overseen by the SPCBs or the Union Territory Pollution Control Committee40. G

38 SEAC 39 SPCB 40 UTPCC

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40Copy pinpoint40. The salient objective which underlies the 2006 notification is the protection, preservation and continued sustenance of the environment when the execution of new projects or the expansion or modernization of existing projects is envisaged. It imposes certain restrictions and prohibitions based on the potential environmental impact of projects unless prior EC has been granted by the concerned authority. The EC is required B before any construction work, or preparation of land (except for securing the land) is started on the project or activity listed in the Schedule to the notification. The process stipulated under the 2006 notification is illustrated by the following flow-chart:

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

41Copy pinpoint41. Based on the spatial extent of the potential impact and the potential impacts on human health and natural and man-made resources, the 2006 notification categorizes all projects into Category ‘A’ and Category ‘B’ projects. The MoEFCC in the Central Government and the SEIAA at the state level constitute the regulatory authorities for the purposes of the notification. Category ‘A’ projects require prior environmental clearance from the MoEFCC, based on the recommendation of the EAC constituted by the Central Government for this purpose. Category ‘B’ projects will require prior environmental clearance from the SEIAA, based on the recommendations of the SEAC. Where no SEIAA or SEAC has been constituted, Category ‘B’ projects are treated as Category ‘A’ projects. C

42Copy pinpoint42. Once a prospective site has been identified by the applicant for the proposed project, all applications seeking an EC shall be made in the prescribed Form 1 and Supplementary Form 1A41, if applicable. The application must be submitted prior to the commencement of any construction activity, or preparation of the land at the site. A pre-feasibility report must also be submitted with the application except in the cases of construction projects in item 8 of the Schedule, for which a conceptual plan must be submitted. The significance of the information furnished by the applicant in Form 1 shall be explored shortly.

43Copy pinpoint43. The process to obtain environmental clearance as stipulated by the notification for new projects42 comprises a maximum of four stages, all of which may not apply depending on the specific case stipulated under the notification: 1) Screening; 2) Scoping; F 3) Public Consultation; and 4) Appraisal.

41 Only for construction projects listed under item 8 of the Schedule G 42 Applications for EC for expansions or modernization of existing units as stipulated under the notification are made in Form 1 and shall be considered by the EAC or the SEAC within 60 days, which will decide on the due diligence necessary including the preparation of the EIA and public consultations and the application shall be appraised accordingly for the grant of environmental clearance.

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44Copy pinpoint44. SCREENING – This step is restricted only to Category ‘B’ projects. This stage entails an examination of whether the proposed project or activity requires further environmental studies for the preparation of an EIA for its appraisal prior to the grant of an EC. Those projects requiring an EIA are further categorized as Category ‘B1’ projects and remaining projects are categorized as Category ‘B2’ projects. Category B ‘B2’ projects do not require an EIA. The categorization is in accordance with the guidelines issued in this regard by the MoEFCC from time to time.

45Copy pinpoint45. SCOPING – At this stage, the EAC or the SEAC, as the case may be, formulates detailed and comprehensive Terms of Reference C which address all relevant environmental concerns for the preparation of the EIA. Amongst other things, the information furnished by the applicant in Form 1/Form 1A along with the proposed ToR by the applicant form the basis for the preparation of the ToR. The ToR must be conveyed to the applicant within 60 days of the receipt of Form 1, failing which, D the ToR proposed by the applicant shall be deemed as approved. Significantly, applications for EC may be rejected by the regulatory authority at this stage itself on the recommendation of the EAC or the SEAC, as the case may be, and the decision along with reasons is to be communicated to the applicant within 60 days of receipt of application.

46Copy pinpoint46. PUBLIC CONSULTATION – Prior to this stage, a Summary EIA is prepared in the format given in Appendix IIIA on the basis of the ToR furnished to the applicant. This stage involves the process “by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view of taking into account all the material concerns in the project F or activity design as appropriate.” The detailed procedure is stipulated in Appendix IV. Subject to the exceptions provided in the 2006 notification, all Category ‘A’ and Category ‘B1’ projects shall undertake the public consultation process. This stage comprises two components: G (i) A public hearing at the site or in its close proximity – district-wise to be carried out in the manner prescribed in Appendix IV; and

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

(ii) Procurement of written responses from concerned persons having a plausible stake in the environmental aspects surrounding the project.

47Copy pinpoint47. The State Pollution Control Board43 or the Union Territory Pollution Control Committee44 is charged with conducting the public hearing in the manner stipulated in Appendix IV and forwarding the proceedings to the regulatory authority within 45 days of a request from the applicant. The regulatory authority is empowered to engage another public agency or authority to carry out the process within a further period of forty-five days in case the SPCB or the UTPCC does not adhere to the prescribed time period stipulated in the notification. The public hearing should be arranged in a “systematic, time bound and transparent manner” C to ensure the “widest possible public participation at the project site(s) or in its close proximity District-wise”. The public hearing proceeding is filmed and a copy of the video is submitted to the concerned regulatory authority.

48Copy pinpoint48. Within seven days of receiving a written request to initiate the public consultation process, the SPCB or the UTPCC shall place the Summary EIA and the application on their website and invite responses. The concerned authority may also make use of other appropriate media in addition to publication on their website to ensure wide publicity of the project. On a written request from any concerned person, the authority will make available a hard copy of the Draft EIA for inspection at a notified place during office hours till the date of the public hearing. A duty is placed on the authority to forward all responses and comments received at this stage to the applicant through the quickest available means. F

49Copy pinpoint49. After the public consultation process, the applicant is duty bound to address all the material environmental concerns expressed during the process and make appropriate changes to the Draft EIA and EMP. The applicant shall then forward the final EIA report to the regulatory authority to initiate the next stage. Alternatively, the applicant may submit a supplementary report to the Summary EIA and EMP. G

50Copy pinpoint50. APPRAISAL - This stage involves detailed scrutiny by the EAC or the SEAC of all the documents submitted by the applicant for the 43 SPCB 44 UTPCC H

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A grant of EC. The appraisal is carried out in a transparent manner in a process to which the applicant shall be invited for furnishing clarification in person or through an authorized representative. Appendix V stipulates that the following documents are also submitted to the regulatory authority: (i) Final EIA Report B (ii) A copy of the video tape or CD of the public hearing proceedings (iii) A copy of the final layout plan (iv) A copy of the project feasibility report.

51Copy pinpoint51. The regulatory authority must examine the documents “strictly with reference to the ToR” and communicate any inadequacy to the EAC or the SEAC, as the case may be, within 30 days of receipt of the documents. Within sixty days of the receipt of all the documents, the EAC or the SEAC, as the case may be, shall complete the appraisal process as prescribed in Appendix V. Within the next fifteen days, the EAC or the SEAC shall make categorical recommendations to the concerned regulatory authority to either grant the EC on the stipulated terms and conditions or reject the application, together with reasons. The appraisal of projects which are not required to undergo the public consultation process or the submission of an EIA is to be carried out on the basis of the prescribed application Form 1 or Form 1A, as applicable.

52Copy pinpoint52. The MoEFCC or the SEIAA shall thereafter consider the recommendations of the EAC or the SEAC and convey its decision to the applicant within 45 days of receipt of the recommendations. The regulatory authorities shall normally accept the recommendations of the EAC or the SEAC, as the case may be. Where there is a disagreement, the regulatory authority shall ask for a reconsideration of the recommendation within 45 days of the receipt of the recommendations. This decision shall be conveyed to the applicant. The EAC or the SEAC shall then reconsider its recommendation within a further period of 60 days and make its recommendations to the regulatory authority. The G regulatory authorities shall then take a decision after considering the views communicated to it and convey the decision to the applicant within the next 30 days.

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[DR. DHANANJAYA Y. CHANDRACHUD, J.]

53Copy pinpoint53. If no decision is communicated to the applicant within the A time prescribed, the applicant may proceed according to the recommendation of the EAC or the SEAC recommending either the grant or rejection of the EC. The decision of the regulatory authority and the final recommendations of the EAC or the SEAC shall be public documents on the expiry of the prescribed timelines. Deliberate B concealment and/or the submission of false or misleading information material to the steps involved in the grant of an EC make the application liable for rejection and cancellation of any EC granted on that basis.

54Copy pinpoint54. The 2006 notification embodies the notion that the development agenda of the nation must be carried out in compliance with norms stipulated for the protection of the environment and its complexities. It C serves as a balance between development and protection of the environment: there is no trade-off between the two. The protection of the environment is an essential facet of development. It cannot be reduced to a technical formula. The notification demonstrates an increasing awareness of the complexities of the environment and the heightened D scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. In laying down a detailed procedure for the grant of an EC, the 2006 notification attempts to bridge the perceived gap between the environment and development. E

55Copy pinpoint55. It is for this reason that the EAC and SEAC comprise experts in the field of environmental law. The Chairperson of the EAC shall be a person who is an “outstanding and experienced environmental policy expert or expert in management or public administration with wide experience in the relevant development sector”. Appendix VI to the 2006 notification stipulates that the EAC and the SEAC comprise 15 F members who are either ‘experts’ or ‘professionals’. Experts must have atleast 15 years of relevant experience in the field or an advanced degree (PhD) with 10 years of relevant experience. Where experts are not available, professionals may be appointed to the EAC.

56Copy pinpoint56. The EAC and the SEAC are charged with evaluating the G information submitted by the applicant in Form 1/Form 1A and preparing comprehensive ToR which guide the preparation of the EIA reports. Given that these bodies comprise experts in the field of environmental

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A law, the recommendation of the EAC or the SEAC to grant EC to an applicant or reject the application is normally accepted by the regulatory authority.

57Copy pinpoint57. The regulatory authority at the state level (SEIAA) which is charged with the approval or rejection of an application for EC comprises three members who possess the qualifications in the field as prescribed in Appendix VI. Significantly, sub clause (7) of paragraph 3 of the 2006 notification stipulates that all decisions of the SEIAA shall be unanimous and taken in a meeting. Given the environmental consequences of a proposed project, no difference of opinion is provided for in the grant of an EC at the state level. It is further mandated that the project management submit half-yearly compliance reports to the regulatory authority in respect of the EC and conditions.

58Copy pinpoint58. Under the 2006 notification, the process of obtaining an EC commences from the production of the information stipulated in Form 1/ Form 1A. Crucial information regarding the particulars of the proposed project is sought to enable the EAC or the SEAC to prepare comprehensive ToR which the applicant is required to address during the course of the preparation of the EIA. Some of the information sought is produced thus: (i) Construction, operation or decommissioning of the project involving 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 resources which are non-renewable or in short supply); F (iii) Use, storage, transport, handling or production of substances or materials, 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- G commissioning; (v) Release of pollutants or any hazardous, toxic or noxious sub- stances to air;

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