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2024 Supreme(Online)(NGT) 422
NATIONAL GREEN TRIBUNAL CHENNAI (SOUTHERN ZONE BENCH)
Pushpa Sathyanarayana, Judicial Member, Satyagopal Korlapati, Expert Member
Pradeep Babu Tandel Somnath Temple – Appellant
Versus
Union of India – Respondent
Original Application No.49 of 2022 (SZ)|I.A. Nos.122 of 2022 & 15 of 2024 (SZ)
For Applicant (s): M/s. Ritwick Dutta, Rahul Choudhary, G. Stanly Hebzon Singh
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff, Mr. H.K. Vasanth, M/s. Shivkumar Iyer & Aditi Maheswari, Mr. Rajat Jonathan Shaw represented Mr. Darpan K.M.
Public Trust Doctrine mandates state agencies protect forests; unnecessary diversions for relocatable structures impermissible; post-Environmental Clearance forest applications revealing scope changes require fresh appraisal; penal deposit ordered for diligence lapse (28 words).
Headnote:(A) Environment (Protection) Act, 1986 - EIA Notification, 2006 - Forest (Conservation) Act, 1980 - Challenge to Environmental Clearance granted for port expansion on grounds of non-disclosure of forest land requirement and change in project scope - Project proponent applied for Forest Clearance post-Environmental Clearance for additional infrastructure including administrative office, training institute, etc., on 11.75 hectares forest land - Authorities held that port expansion and separate administrative project are distinct, with no overlap - However, subsequent withdrawal of Forest Clearance application due to land constraints, with intent to file amended application - State agencies under Public Trust Doctrine (Article 48A Constitution) must protect environment and apply mind before seeking forest diversions - Structures like administrative offices need not be in forest areas - Project proponent directed to deposit Rs.10 Crores with forest authority prior to any fresh Forest Clearance application as deterrent for lack of due diligence. (Paras 22-24)
(B) Environmental Clearances - Scope change and concealment - Condition in Environmental Clearance mandates fresh appraisal for deviations; non-disclosure of forest land in EIA process renders clearance vulnerable, though no violation occurred as Forest Clearance pending and later withdrawn - Original Application disposed without revoking clearance, liberty to applicants for future violations. (Paras 5, 20)
Facts of the case:
Residents challenged Environmental Clearance for second stage port development alleging concealment of 11.75 hectares forest land requirement for additional infrastructure not disclosed in EIA. Project proponent claimed separate administrative project, applied for Forest Clearance post-clearance, later withdrew due to terrain issues, proposing scaled-down plan and fresh application.
Findings of Court:
No ongoing construction in forest area; withdrawal of Forest Clearance application post-filing of OA indicates realization of irregularities highlighted; fresh applications subject to necessity scrutiny; Rs.10 Crores deposit mandated with forest head before new Forest Clearance bids to enforce public trust.
Issues: Whether Environmental Clearance obtained through concealment meriting revocation; whether port expansion and forest land infrastructure constitute single project requiring fresh EIA; application of Public Trust Doctrine to prevent unnecessary forest diversions.
Ratio Decidendi: State as trustee must protect forests under Public Trust Doctrine, avoiding unnecessary diversions for relocatable structures; post-clearance Forest Clearance applications disclosing new scope trigger reappraisal obligations; lack of initial diligence warrants penal deposit prior to refiling.
Result: Original Application disposed with liberty to refile on violations; Rs.10 Crores deposit directed; interlocutory applications closed. (Para 26)
| Table of Content |
|---|
| 1. application challenges ec for karwar port expansion. (Para 1 , 2) |
| 2. alleged concealment of forest land in eia process. (Para 3 , 4) |
| 3. respondents admit non-disclosure; require re-appraisal. (Para 5 , 6 , 7) |
| 4. port stage-ii and maritime board projects are separate. (Para 9) |
| 5. forest clearance application withdrawn; revised planned. (Para 11 , 12 , 13 , 14 , 17 , 18 , 19 , 20) |
| 6. applicants assert projects under same administrative control. (Para 15 , 16) |
| 7. oa disposed; penalty imposed; public trust upheld. (Para 21 , 22 , 23 , 24 , 25 , 26 , 27) |
JUDGEMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member.
1. This Original Application is filed by the residents of Karwar in Uttara Kannada, Karnataka, seeking revocation of the Environmental Clearance dated 23.01.2019 granted in favour of the 4th Respondent/ Project Proponent on the ground that the same has been obtained without disclosure of all relevant information and that there is a change in scope of the project.
2. The challenge relates to the proposed second stage development of the commercial Karwar Port at Baithkol Village, Karwar Taluk, Uttara Kannada. The existing port has a capacity of 3 MTPA with a total land area of 3 Hectares. This is proposed to be expanded by an additional 1.5 MTPA, amounting to a total of 4.5 MTPA, as stated in the Environmental Clearance dated 23.01.2019. The project was considered by the State Expert Appraisal Committee (SEAC) – Karnataka in 2017, the Terms of Reference (ToR) was issued on 01.04.2017, and a recommendation for grant of Environmental Clearance was given on 04.12.2018. The State Environment Impact Assessment Authority (SEIAA) – Karnataka, in its meeting dated 26.12.2018, decided to accord the Environmental Clearance. The Project Proponent had also applied for the Forest Clearance for diversion of forest land for non-forest purposes. In this regard, the Project Proponent had not disclosed the requirement of either forest land or additional land over and above the 17 Hectares, based on which, the Environmental Clearance was granted earlier. It is alleged by the applicants that the need for forest land was never mentioned during the EIA process.
3. The impugned Environmental Clearance dated 23.01.2019 is now sought to be revoked by the applicants on the following grounds:-
a. The Project Proponent had sought for the Forest Clearance, as the need for the forest was land never part of the EIA process.
b. The Project Proponent did not disclose the requirement of either forest land or additional land over and above the 17 Hectares, based on which, the Environmental Clearance was granted.
c. Additional forest land request of 11.75 Hectares is an expansion project in terms of the total area and also with respect to the number of project related activities that are not listed in the EIA report or during the scoping process as well as appraisal process.
d. While the impugned Environmental Clearance was granted based on the total area involved which was limited only to 17 Hectares, the additional 11.75 Hectares over and above the 17 Hectares is a substantial increase in the land requirement.
e. The construction of additional components was not shown in the EIA Report and the infrastructure facilities were already said to be in place. While so, the Forest Clearance application was submitted on the grounds that the infrastructure facilities such as the Karnataka Maritime Board Office, guest house, two internal roads, Karnataka Maritime Institute, cold storage yard, cement silos, bulk cargo stacking yard, container terminal, parking area, tank terminal, garden, etc. needed to be constructed in the project area.
f. As it was submitted by the Project Proponent that no new road and rail route is proposed under the proposed development, in the Forest Clearance application, two new roads are shown which amounts to a change in scope of the project which requires re-appraisal from the SEIAA –Karnataka.
g. If it is an expansion proje
