2019 Supreme(SC) 374

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, HEMANT GUPTA, JJ.
Hanuman Laxman Aroskar – Appellant
Versus
Union of India – Respondent
Civil Appeal No 12251 of 2018
WITH
Federation of Rainbow Warriors – Appellant
Versus
Union of India and Ors – Respondents
Civil Appeal No 1053 of 2019
Decided On : 29-03-2019

IMPORTANT POINT
Until the EAC carries out the fresh exercise as directed, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended.

Headnote:(a) Environmental law – Grant of EC – Guidelines of MoEFCC – Form 1 – Requiring disclosure of wet lands, water sources, water bodies, biospheres, mountains and forests within an aerial distance of 15 kilometres – Disclosure in Form 1 constitutes the very foundation of the process – State of proposing Goa international airport at Mopa – Not disclosing information about forest within 15 Km area – Project proposal liable to be rejected. (Para 67, 68)

       (b) Indian Forest Act 1927 – Notification of 2006 u/s 20(2) – Form 1 requiring disclosure of important or ecologically sensitive areas including forests – ‘Forests’ in the notification, held, are forests without reference to recognition in a statutory form devised for a specific purpose. (Para 69, 72)

       (1997) 2 SCC 267; (2011) 1 SCC 744 – Relied upon

       (c) Environmental law – Grant of EC – EIA report – Mopa international airport at Mopa, Goa – Project proponent failing to disclose existence of forests within 15 Km of project in Form 1 – EIA report adverting to existence of forests in the area – However, a failure to disclose information in Form 1 impairs the functioning of the EAC in the preparation of the ToR and in consequence, leads to preparation of a deficient EIA report – Grant of EC liable to be refused – Claiming EC as a matter of right merely because the EIA report has assessed parameters that were omitted in Form 1, bypasses the authority of the EAC and SEAC to reject an application at the preliminary stage – Cannot be countenanced. (Para 75, 76)

       (d) Indian Forest Act 1927 – Notification of 2006 u/s 20(2) – Substantial or proportionate compliance not sufficient. (Para 77)

        (e) Ecologically Sensitive Zone – Several villages of Sindhudurg district of Maharashtraa falling in Western Ghats ESZ covered in buffer zone of 10 Km of project area – Project area falling in Pernem taluka of Goa – Not declared as SEZ – EIA report observing that Pernem taluka, where the project site is situated, is not an ESZ – All construction activities banned in SEZ – EIA failing to take into account a relevant consideration namely, that within the study area which has to be considered, there is the presence of ESZs. (Para 81, 85, 86)

       (f) Guidance Manual – 2006 notification – Form 1 – Sampling points – Primary data within 10 km of project area and secondary data from within 15 km of project area required – Instantly not a single sampling point situated in Maharashtra – Resulting in no sampling point in 40% of study area. (Para 87, 94)

       (g) Biological environment – EIA report stating sparse vegetation and trees at the site – Ignoring permission to felling of 54,676 trees – Displeasure of Court expressed – Post facto explanations are inadequate to deal with a failure of due process in the field of environmental governance – Goa, Daman and Diu Preservation of Trees Act, 1984, Section 2(j) – Tree – Hiding significant components of environment from scrutiny not an acceptable modality to secure project approvals. (Para 95, 97, 98, 99)

       (h) Notification, 2006 – Public consultation – Intrinsic value and instrumental function – Public consultation held on 1 February 2015 at Mopa. Nearly 70 persons spoke on the occasion and 1,586 persons signed the attendance sheet and 1,150 representations received – Number of concerns voiced – In presentation to EAC project proponent recording an observation that the responses sought from the project proponent related to employment opportunities – EAC also failing to critically appraise or analyse the report – Apparent failure in the process of applying and implementing the norms laid down in 2006 notification. (Para 104, 105, 107)

       (2009) SCC Online Del 3836 – Cited with approval

       (i) Notification, 2006 – Duty of EAC – Detailed scrutiny of EIA report giving reasons for its conclusions – Instantly, EAC report sketchy and perfunctory – Held, EAC has failed to answer to the call to its expertise. (Para 112, 116)

       (j) NGT Act 2010 – Section 16, 20 and 22– Appellate jurisdiction of NGT – Shall apply principles of sustainable development, the precautionary principle and the polluter pays principle – Absence of a merits review by the NGT in instant case – Parameters of substantial question of law established – Jurisdiction of Supreme Court can be invoked under Section 22. (Para 117, 121, 125)

       (1996) 5 SCC 647; (1997) 1 SCC 388; (1997) 2 SCC 353; (1999) 2 SCC 718; (2000) 10 SCC 664; (2011) 8 SCC 161; (2019) 4 SCALE 218; 1962 Supp. (3) SCR 549 – Relied upon

       2013 (1) All India NGT Reporter 1; 2014 ALL (2) NGT Reporter (1) (SZ) 1 – Cited with approval

       (2011) 7 SCC 338 – Distinguished

       (k) Environmental Rule of Law – Articles 21 and 14, Constitution of India – Notification 2006 – In the area of environmental governance, the means are as significant as the ends – Sustainable development – Proportionality – Requiring balance between development of infrastructure and the environment – Instantly failure of due process commencing from the non-disclosure of vital information by the project proponent in Form 1 – EAC directed to revisit the conditions for the grant of an EC. (Para 141, 143, 145, 146)

       Facts of the case:

       An appeal was filed before the Principal Bench of the National Green Tribunal (NGT) at New Delhi challenging the grant of an Environmental Clearance (EC) for the development of a greenfield international airport at Mopa in Goa. The NGT, by its judgment dated 21 August 2018 came to 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.

       Finding of the Court:

       The EAC has failed to answer to the call to its expertise and abdicated its jurisdiction.

       Result: Civil Appeal No 12251 of 2018 allowed.