BENGALURU DEVELOPMENT AUTHORITY v. MR. SUDHAKAR HEGDE & ORS.

HEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

“… A (ii) At the stage of consideration of proposals for EC in respect of projects involving forestland, the project proponent would inform the respective EACs about the status of their application for forestry clearance along with necessary supporting documents from the concerned Forest Authorities. It will clearly be informed to the EAC whether the application is at the State level or at the Central level. The EAC will take cognizance of the involvement of forestland and its status in terms of forestry clearance and make their recommendations on the project on its merits. After the EAC has recommended the project for environmental clearance, it would be processed on file for obtaining decision of the Competent Authority for grant of environmental clearance. In the cases where the Competent Authority has approved the grant of environmental clearance, the proponent will be informed of the same and a time limit of 12 months, which may be extended in exceptional circumstances to 18 months, a decision on which will be taken by the Competent Authority, will be given to the proponent to submit the requisite stage-I forestry clearance. The formal environmental clearance will be issued only after the stage- I forestry clearance has been submitted by the proponent. E (iii) In the eventuality that the stage-I forestry clearance is not submitted by the project proponent within the prescribed time limit mentioned at para (ii) above, as and when the stage-I forestry clearance is submitted thereafter, such projects would be referred to EAC for having a relook on the proposal on case by case F basis depending on the environmental merits of the project and the site. In such a situation the EAC may either reiterate its earlier recommendations or decide on the need for its reappraisal, as the case may be. In the eventuality, a reappraisal is asked for, the Committee will simultaneously decide on the requirement of documents / information for reappraisal as also the need for a G fresh public hearing.” (Emphasis supplied)

65Copy pinpoint65. Project proponents are duty bound to disclose the existence of forest land and inform the SEAC of the status of their application for H

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A forest clearance at the time of submitting the EIA report for the grant of the EC. Where the competent authority has granted the EC for a project, the project proponent is then duty bound to obtain and submit to the competent authority the requisite stage I forest clearance for the proposed project within 12 months or 18 months, as the case may be. Where the project proponent fails to submit the requisite forest clearance within the prescribed time, the EAC or the SEAC are authorised to reexamine the project and decide whether there is a need for the reappraisal of the project. The process envisaged for the disclosure of the forest clearance procedure as well as the submission of the grant of forest clearance sub-serves the purpose of ensuring timely and adequate protection of forest land. Where the EAC or the SEAC is of the opinion that additional documents are required upon the failure of the project proponent to submit the requisite forest clearance within the prescribed time, it may direct that a fresh public hearing be conducted.

66Copy pinpoint66. The appellant attempted to remedy its contradictory stand on the forest land proposed to be diverted and its failure to obtain the requisite forest clearance by submitting to the SEAC an undertaking to ensure afforestation in an alternate plot of land owned by it in collaboration with the forest department. Such a procedure is neither envisaged under the 2006 Notification nor is in compliance with the notifications issued by the MoEF-CC from time to time. Similarly, the SEAC was under an obligation to ensure that the project proponent had complied with the stipulated procedure for the grant of forest clearance. Instead, the SEAC proceeded on the clarification issued by the appellant in contravention of the OMs dated 31 March 2011, 9 September 2011 and 18 May 2012. Despite the numerous deficiencies that were noted in the minutes of the F SEAC meeting, it proceeded to recommend to the SEIAA the grant of EC for the PRR project. The decision of the SEAC to recommend to the SEIAA the grant of the EC, despite the contradictory stand of the appellant as well as its failure to furnish adequate reasons as to why it was exempt from seeking forest clearance, suffers from a non-application of mind. G G.3 Trees

67Copy pinpoint67. In the written submissions filed before this Court, it was contended by the respondents that there was a material concealment by the project proponent of the number of trees proposed to be felled for H the PRR project. While the appellant stated that only 200 – 500 trees

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HEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

were required to be felled, the number was in fact as high as 16,000 A trees. The appellant, as project proponent, stated in the 2014 EIA report: “Around 519 plants are felled for the project; the minimum of three times the number of felled plant will be replanted in the nearby areas” B

The Deputy Conservator of Forests, BDA, in a reply dated 24 April 2009 to a right to information query stated: “With respect to the information sought under the Right to Information Act, 2005, the number of trees that will be cut for the formation of the Peripheral Ring Road – Part I have been provided below: Sl. Information sought Information provided No. for

Here is the The below mentioned trees information sought belong to the Horticulture & regarding cutting of Forest Department will be cut trees for the for the formation of the formation of the peripheral ring road Part – I Peripheral Ring Road

1. Coconut trees: 3837 E Part - I

2. Mango trees: 3142

3. Guava trees: 1361

4. Sapota trees: 0818

5. Arecanut trees: 0287

6. Jamun trees: 0084

7. Jackfruit trees: 0059 F

8. Tamarind trees: 0040

9. Teak trees: 0201

10. Silver oak trees: 0028

11. Neem trees: 0028

12. Eucalyptus trees: 7000 Total 16,785 G

68Copy pinpoint68. The Deputy Conservator of Forests revealed that around 16,785 trees were proposed to be cut for the purpose of executing the PRR project. The abject failure of the project proponent in disclosing the number of trees required to be felled is also evident from the rejoinder H filed by appellant before this Court. It was submitted:

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A “13. In reply to Para No. 6: As had been stated earlier, the clarifications regarding cutting of trees and the corrections have been made subsequently and additionally a further 25 acres of land has been provided for the purpose of afforestation in an alternate piece of land. The same has been shown in pg. 184 of I.A. No. 53243/2019.” B The EIA report prevaricated by recording that the area required for the proposed PRR project has only a few trees. Though the development of infrastructure may necessitate the felling of trees, the process stipulated under the 2006 Notification must be transparent, candid and robust. Hiding significant components of the environment from C scrutiny cannot be an acceptable method of securing project approvals. There was a serious lacuna in regard to disclosures and appraisal on this aspect of the controversy.

D G.4 Pipelines

69Copy pinpoint69. The EIA process was challenged on the ground that by virtue of a notification dated 12 June 1999, the Central Government acquired certain lands for laying a petroleum pipeline between Mangalore and Bangalore. Petronet MHB Ltd., by its letters dated 7 November 2005 E and 21 November 2007 sought to inform the appellant of the potential crossover of the PRR project over the pipelines. The same was reiterated in its meeting with the appellant dated 4 February 2008. Petronet MHB Ltd.was of the opinion that as the pipelines contain hazardous material which is highly inflammable, care should be taken to either relocate parts of the project or ensure that adequate safeguards were put in place. F

70Copy pinpoint70. The respondents have placed on record the minutes of the meeting dated 2 February 2008 between the appellant authority and the representatives of M/S. Petronet MHB Limited. It was noted that the proposed PRR project crosses the PETRONET pipeline at three locations – PRR CH 7600, PRR CH 29100 to 29500 and CH 31100 to 31800 and G PRR CH 39500. It was agreed that a joint-inspection would take place for one crossing, while for the other two crossings it was agreed that the PRR project would be raised for clearance height. It was stated: “The MD, M/S. Petronet MHB Limited agreed that the PRR may be taken over at higher level with a clearance of minimum H 5.20 m from the ground level and the crossing shall be preferably

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HEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

at right angles. He also insisted that no supports shall be constructed within their Right of user (ROU) of 18.00.” In this view of the matter, the appellant sought to take adequate precautions to ensure that the proposed PRR project did not cross a pipeline and where it did, it was at a sufficient height without the use of support pillars. The respondent contended that that the appellant was constrained to revert to the proposed alignment prior to the meeting by virtue of various orders passed by the High Court of Karnataka. This shall be dealt with in the directions which this Court seeks to issue. H Appraisal by the SEAC

71Copy pinpoint71. In addition to the finding that the SEAC erred in recommending to the SEIAA the grant of EC on the basis of an expired ToR and primary data, there is another aspect of the matter that warrants the attention of this Court. The SEAC, in its 121st meeting between 11 – 18 November 2014 proceeded to recommend to the SEIAA the grant of EC for the PRR project. Appraisal by the SEAC is structured and defined by the D 2006 Notification. At this stage, the SEAC is required to conduct “a detailed scrutiny” of the application and other documents including the EIA report submitted by the applicant for the grant of an EC. Upon the completion of the appraisal process, the SEAC makes “categorical recommendations” to the SEIAA either for: (i) the grant of a prior EC on stipulated terms and conditions; or (ii) the rejection of the application. E Significantly, the recommendations made by the SEAC for the grant of EC, are normally accepted by the SEIAA and must be based on “reasons”. At its 121st meeting, the SEAC recorded the following reasons for its recommendations: “PP and environmental consultant were present in the meeting. F PP stated that the project was conceived and the consultant was engaged in 2003 prior to 2006 EIA Notification. Now JICA is insisting for EC. PP have submitted the compliance for the above queries raised G by the committee vide their letter dated 12.11.2014. After due deliberations the committee decided to recommend the proposal to SEIAA for consideration to issue EC. PP has submitted an undertaking on the day of the meeting on the following points: H

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A 1. To provide pedestrian crossings in the utility crossings facility taking all the precautions.

2. Adequate CD works

3. To maintain Raja Kalave

B 4. To take up afforestation work separately

5. Major crossings of NH/SH/MDR/VR

6. Accessibility to proposed road from all villages without charging toll. Action to be taken: Secretary, SEAC to submit the proposal to C SEIAA accordingly.”

72Copy pinpoint72. The reasons furnished by the SEAC must be assessed with reference to the norm that it is required to submit reasons for its recommendation.The analysis by the SEAC is, to say the least, both perfunctory and fails to disclose the reasons upon which it recommended D to the SEIAA the grant of EC for the PRR project. The SEAC proceeds merely on the reply furnished by the appellant to the queries raised by the SEAC at its 115th meeting dated 11-12 August, 2014. In this view, the procedure followed by the SEAC suffers from a non-application of mind. E

73Copy pinpoint73. The SEAC is under an obligation to record the specific reasons upon which it recommends the grant of an EC.The requirement that the SEAC must record reasons, besides being mandatory under the 2006 Notification, is of significance for two reasons: (i) The SEAC makes a recommendation to the SEIAA in terms of the 2006 Notification. The F regulatory authority has to consider the recommendation and convey its decision to the project proponent. The regulatory authority, as para 8(ii) of the 2006 Notification provides 18, shall normally accept the recommendations of the EAC. Thus, the role of the SEAC in the grant of the EC for a proposed project is crucial; and (ii) The grant of an EC is subject to an appeal before the NGT under Section 16 of the NGT Act

G 2010. The reasons furnished by the SEAC constitute the link upon which the SEIAA either grants or rejects the EC. The reasons form the material which will be considered by the NGT when it considers a challenge to the grant of an EC. 18 ‘‘(ii) The regulatory authority shall normally accept the recommendations of the H Expert Appraisal Committee or State Level Expert Appraisal Commitee concerned...’’

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HEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

74Copy pinpoint74. In Shreeranganathan K P v Union of India19, the grant of A an EC to the KGS Aranmula International Airport Project was challenged. The NGT found fault with the process leading upto the grant of the EC since sector specific issues had not been dealt with. The NGT extensively reviewed the information submitted with regard to the construction of the airport and held thus: B “182. … a duty is cast upon the EAC or SEAC as the case may be to apply the cardinal principle of Sustainable Development and Principle of Precaution while screening, scoping, and appraisal of the projects or activities. While so, it is evident in the instant case that the EAC has miserably failed in the performance of its duty not only as mandated by the EIA Notification, 2006, but has also disappointed the legal expectations from the same. For a huge project as the one in the instant case, the consideration for approval has been done in such a cursory and arbitrary manner without taking note of the implication and importance of environmental issues. …Thus, the EAC has not conducted itself as mandated by the EIA Notification, 2006 since it has not made proper appraisal by considering the available materials and objections in order to make proper evaluation of the project before making a recommendation for grant of EC.” E The Court held that the EAC had not conducted a proper appraisal given its failure to consider the available material and objections before it. The EAC had thus failed to conduct a proper evaluation of the project prior to forwarding to the regulatory authority its recommendation.

75Copy pinpoint75. In Lafarge Umiam Mining Private Limited v Union of F India,20 an application was made under the 1994 notification for the grant of an EC to a proposed limestone mining project at Nongtrai Village, East Khasi Hills District, Meghalaya. A three judge Bench of this Court rejected the challenge and upheld the grant of the EC to the proposed project. Chief Justice S H Kapadia noted that the doctrine of proportionality must be applied to matters concerning the environment G as part of judicial review. The principles of judicial review in environmental matters have been enunciated thus:

19 2014 ALL (I) NGT Reporter (1) (SZ) 1 20 (2011) 7 SCC 338 H

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

76Copy pinpoint76. The SEAC, as an expert body, must speak in the manner of an expert. Its remit is to apply itself to every relevant aspect of the project bearing upon the environment and scrutinise the document submitted to it. The SEAC is duty bound to analyse the EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated. I Courts and the environment

77Copy pinpoint77. Courts today are faced with increasing environmental litigation. A development project that was conceptualized as early as in the year 2005 has surfaced before this Court over 15 years later. The period that has led up to the present litigation has involved a myriad of decisions and processes, each contributing to the delay of a project that was outlined to sub-serve a salient development policy of de-congesting the city. Where G project proponents and institutions envisaged under the 2006 Notification abdicate their duty, it is not only the environment that suffers a serious set-back, but also the development of the nation. In the eventual analysis, compliance with the deliberative and streamlined process envisaged for the protection of the environment ensures a symbiotic relationship between H the development of the nation and the protection of the environment.

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HEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

78Copy pinpoint78. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two.The protection of the environment is an inherent component of development and growth. Professor Charles E Corker of the University of Washington School of Law said in a speech titled “Litigating the Environment – are we overdoing it?”21: “My answer is yes. We are overdoing our litigation of the environment. I do not mean that there are necessarily too many lawsuits being filed on environmental issues, and that we should somehow cut back – I would not know how, in any case – the number of those suits by ten percent, twenty percent, or fifty percent. I do mean that a disproportionately large share of attention, effort and environmental concern is being focused on lawsuits. Lawsuits cannot accomplish, by themselves, solutions to the most pressing of our environmental problems. As a result, we are in some danger of leaving the most pressing environmental problems unsolved –or even made worse – because the commotion of litigation has persuaded us that something has been accomplished.” Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions. Equally important however, is to be cautious that environmental litigation alone is not the panacea in the quest to ensure sustainable development.

79Copy pinpoint79. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental G governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under 21 Speech to the Thirteenth Annual Meeting of the Interstate Conference on Water Problems, Portland, Oregon delivered on 29 October, 1970. H

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A Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place. B

80Copy pinpoint80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At C the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled.

81Copy pinpoint81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF- CC from time to time.In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification.

82Copy pinpoint82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision-making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019. J Directions

83Copy pinpoint83. Bearing in mind the need to bring about a requisite balance, we propose to issue the following directions under Article 142 of the Constitution: (i) The appellant is directed to conduct a fresh rapid EIA for the proposed PRR project; H

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HEGDE [DR. DHANANJAYA Y CHANDRACHUD, J.]

(ii) The appellant shall, for the purpose of conducting the rapid A EIA, hire a sector-specific accredited EIA consultant; (iii) The appellant shall have due regard to the various deficiencies noted in the present judgment as well as ensure that additional precautions are taken to account for the prevailing state of the environment; B (iv) The appellant shall ensure that the requisite clearances under various enactments have been obtained and submitted to the SEAC prior to the consideration by it of the information submitted by the appellant in accordance with the OMs issued by the MoEF-CC from time to time; C (v) The SEAC shall thereafter assess the rapid EIA report and other information submitted to it by the appellant in accordance with the role assigned to it under the 2006 Notification. If it is of the opinion that the appellant has complied with the 2006 Notification as well as the directions D issued by this Court, only then shall it recommend to the SEIAA the grant of EC for the proposed project. The SEAC and the SEIAA would lay down appropriate conditions concerning air, water, noise, land, biological and socio economic environment and other conditions it deems fit; and E

(vi) The appellant shall consult the requisite authority to ensure that no potential damage is caused by the project to the petroleum pipelines over which the proposed road may be constructed. F

84Copy pinpoint84. In moulding the above directions, this Court has factored into its decision-making calculus the fact that the appeal from the judgment of the NGT was filed by the project proponent and no appeal was filed by the respondents. The order of the NGT directing the appellant to conduct a rapid EIA is upheld, though for the reasons which we have indicated above. We clarify that no other Court or Tribunal shall entertain G any challenge to the ultimate decision of the SEAC or the SEIAA. Liberty is granted to the parties to approach this Court upon any grievance from the decision of the SEAC or the SEIAA pursuant to the order of this Court. H

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85Copy pinpoint85. The appeal is disposed of in the above terms. There shall be no order as to costs. Pending application(s), if any, shall stand disposed of.

B Ankit Gyan Appeal disposed of.