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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, HEMANT GUPTA, JJ.
Bengaluru Development Authority – Appellant
Versus
Mr Sudhakar Hegde & Ors. – Respondents
Civil Appeal No 2566 of 2019
Decided on : 17-03-2020
(a) Environment (Protection) Act 1986 - Section 3(1) and 3(2)(v) r/w rule 5(3)(d), Environment (Protection) Rules, 1986 - Notification, 2006 - Requirement of prior EC for projects listed in Schedule - Expressways and Highways - Instantly PPR project not notified as Highway - 2009 amendment clarifying that highways include expressways - Being clarificatory, it would have retrospective effect. (Para 11, 22, 27)
(b) Interpretation of statute - Amendment - Retrospectivity - Clarificatory amendment - Deemed to retrospective in its application - Applies equally to statutory enactments and notifications. (Para 28, 29)
(c) Environment (Protection) Act 1986 - Section 3(1) and 3(2)(v) r/w rule 5(3)(d), Environment (Protection) Rules, 1986 - Notification, 2006 - Requirement of prior EC for projects listed in Schedule - Instantly PRR being an expressway, project proponent was obliged to seek a prior EC for its implementation. (Para 34)
(d) Environment (Protection) Act 1986 - Section 3(1) and 3(2)(v) r/w rule 5(3)(d), Environment (Protection) Rules, 1986 - Notification, 2006 - Two years validity, extendable by one year, of TORs prescribed with effect from 1.4.2010 - As per further notification of 2014, where the EIA report is prepared within the prescribed time period for the validity of the ToR, the concerned authority may consider an EIA report which relies on primary data which was collected more than three years ago - However, the stipulation that a fresh EIA process must be undertaken where the ToR has expired was retained - Instantly ToR issued on 21 November 2009 - Appellant was required to submit EIA report before 21 November 2013 - EIA report placed before the SEAC nearly a year after expiry of ToR - Further Public hearing conducted nearly a year after expiry of primary data - Non-compliance of OMs issued by MoEF-CC prescribing a time limit for validity of ToR. (Para 40, 43, 44, 46)
(e) Environment (Protection) Act 1986 - Section 3(1) and 3(2)(v) r/w rule 5(3)(d), Environment (Protection) Rules, 1986 - Notification, 2006 - Project proponent generally obliged to ensure that the EIA report was prepared within a time period - failure to do so cannot be remedied by submission of additional fresh data on a few points raised on behalf of SEAC. (Para 50)
(f) Environment (Protection) Act 1986 - Section 3(1) and 3(2)(v) r/w rule 5(3)(d), Environment (Protection) Rules, 1986 - Notification, 2006 - SEAC considering final EIA only after issue of OM dated 22.8.2014 - SEAC was obliged, in terms of the OM, to direct the appellant to conduct the EIA process de novo - Such obligation could not be circumvented by SEAC and project proponent by seeking additional information beyond the prescribed validity of the ToR and primary data. (Para 52)
(g) Environment (Protection) Act 1986 - Section 3(1) and 3(2)(v) r/w rule 5(3)(d), Environment (Protection) Rules, 1986 - Notification, 2006 - Project proponent not disclosing material facts about requisite forest clearance - Taking contradictory stand - Even then SEAC recommending issue of EC to SEIAA - Non application of mind. (Para 66, 72, 76)
(h) Environment (Protection) Act 1986 - Section 3(1) and 3(2)(v) r/w rule 5(3)(d), Environment (Protection) Rules, 1986 - Notification, 2006 - Project proponent stating in WIA report that only 200-500 trees will be felled whereas actual number was as high as 16,785 - Initially stating that only a few trees will be felled - Projcet approval not sustainable. (Para 66, 67, 68)
(i) Environmental law - Failure of institutions to sticking to norms for protection of environment and ensuing litigation not only effects environment - It affects development also - Instantly there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC - SEAC abdicating its role and function - Final decision thus delayed by 15 years. (Para 79, 60, 81, 82)
Facts of the case:
The present appeal arises from a judgment of the Principal Bench of the National Green Tribunal dated 8 February 2019 quashing the Environmental Clearance, granted to the appellant for the development of an eight lane Peripheral Ring Road connecting Tumkur Road to Hosur Road and totaling a length of 65 kilometers. The NGT was of the view that the primary data upon which the Environment Impact Assessment report was based was collected more than three years prior to its submission to the State Environment Impact Assessment Authority. The NGT was of the view that it was not necessary to adjudicate upon the other contentions that were urged in support of quashing the EC as there was a substantial delay in the preparation of the EIA report. Accordingly, the NGT directed the appellant to conduct a fresh rapid EIA and clarified that the “project proponent will not proceed on the basis of the impugned Environmental Clearance.
Finding of the Court:
EC has been recommended and issued without application of mind.
Result: Appeal disposed of.
JUDGMENT :
Dr Dhananjaya Y Chandrachud, J
| Index | ||
| A | Introduction | |
| B | Submissions | |
| C | Issues | |
| D | Date of commencement of the PRR project | |
| E | Applicability of the EIA Notification 2006 | |
| F | Compliance with the procedure under the EIA Notification 2006 | |
| G | Deficiencies in the EIA report | |
| G.1 | Accreditation of the EIA consultant | |
| G.2 | Forest land | |
| G.3 | Trees | |
| G.4 | Pipeline | |
| H | Appraisal by the SEAC | |
| I | Courts and the environment | |
| J | Directions | |
A. Introduction
1. The present appeal arises from a judgment of the Principal Bench of the National Green Tribunal[NGT] dated 8 February 2019 quashing the Environmental Clearance, [EC] granted to the appellant for the development of an eight lane Peripheral Ring Road[PRR] connecting Tumkur Road to Hosur Road and totaling a length of 65 kilometers. The NGT was of the view that the primary data upon which the Environment Impact Assessment [EIA] report was based was collected more than three years prior to its submission to the State Environment Impact Assessment Authority [SEIAA]. The NGT was of the view that it was not necessary to adjudicate upon the other contentions that were urged in support of quashing the EC as there was a substantial delay in the preparation of the EIA report. Accordingly, the NGT directed the appellant to conduct a fresh rapid EIA and clarified that the “project proponent will not proceed on the basis of the impugned Environmental Clearance.” Assailing the order of the NGT, the appellant, as project proponent, is in appeal before this Court.
2. In a bid to address the growing need for efficient commutation, address traffic congestion and connect the Bangalore-Mysore Infrastructure Corridor (NICE road) with more access points, the appellant formulated the PRR project scheme in 2005. A preliminary notification was issued on 27 May 2005 under Section 17(1) and (3) of the Bangalore Development Authority Act 1976[BDA Act] to acquire certain land for the execution of the project. The stated purpose of the project was:
“(1) To decongest the traffic in Bangalore City;
(2) To cater intercity connectivity and intercity traffic;
(3) To reduce pollution in the city;
(4) To reduce heavy vehicles traffic i.e., Lorry and Trucks; and
(5) To decongest the traffic on outer ring road.”
3. Another preliminary notification was issued on 23 September 2005 which concerned the realignment of the proposed road project. A final notification under Section 19(1) of the BDA Act was issued on 29 June 2007 for the acquisition of the proposed land. The notifications were challenged before the High Court of Karnataka in Writ proceedings[WP No. 4550/2008] on the ground that the appellant had no authority to issue the notifications and acquire land for the proposed PRR project. By a judgment dated 22 July 2014, the High Court dismissed the writ petition on the ground that the appellant was authorised under the BDA Act to acquire the land for the project in question. The Writ Appeal against this was dismissed on the ground of default on 9 February 2017.
4. The appellant, as project proponent, submitted an application[No. BDA/EM/TA3/PRR/EIA/T333/09-10] to the SEIAA on 10 September 2009 under the EIA Notification 2006[2006 notification] seeking an EC for the PRR. The Terms of Reference[ToR] were prepared by the State Expert Appraisal Committee [SEAC] on 21 November 2009. Primary data was collected between December 2009 and February 2010. The final EIA report was placed before the SEAC and the SEIAA in October 2014. An EC was granted by the SEIAA on 20 November 2014. The first and second respondents filed an appeal to the NGT challenging the grant of the EC. The NGT, by an interim order dated 15 April 2015 granted an interim stay of the EC. The rele
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