Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(NGT) 1196

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)

Advocates:
For Applicant(s): M/s. Ritwick Dutta, Rahul Choudhary and G. Stanly Hebzon Singh
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1, Mr. H.K. Vasanth for R2, M/s. Shivkumar Iyer & Aditi Maheswari for R3, Mr. Rajat Jonathan Shaw represented Mr. Darpan K.M. for R4 to R6

Public Trust Doctrine requires state agencies to protect environment; penalty (Rs.10 Cr deposit) imposed on project proponent for impermissible forest clearance application post-EC due to non-disclosure, ensuring due application of mind before refiling.

Headnote:(A) Environment (Protection) Act, 1986 - EIA Notification, 2006; Forest (Conservation) Act, 1980 - Environmental Clearance for port expansion - Challenge to EC on grounds of non-disclosure of forest land requirement and change in project scope - Project proponent applied for forest clearance post-EC for additional infrastructure including administrative office, training institute etc. on forest land vested since 1966 - MoEF&CC noted non-disclosure and need for fresh EC on expansion - Tribunal holds projects separate but withdrawal of forest application post-filing indicates irregularity - State duty under Public Trust Doctrine to protect environment (Para 22) - Direction to deposit Rs.10 Crores with PCCF before fresh forest clearance application to ensure due application of mind (Para 23).

(B) Public Trust Doctrine - Article 48A Constitution - State agencies as trustees must protect forests and environment - Non-forest structures relocatable elsewhere - Penalty for initial flawed application (Para 22).

Facts of the case:
Residents challenged EC granted for second stage port development alleging concealment of 11.75 Ha forest land need and additional components not disclosed in EIA. Proponent claimed separate projects; later withdrew forest application citing land constraints, proposing revised plan for limited infrastructure.

Findings of Court:
No ongoing activity on forest land; OA disposed with liberty to applicants for future violations. Rs.10 Crores deposit mandated with PCCF prior to new forest clearance; amount in fixed deposit.

Issues: Whether EC invalid due to non-disclosure of forest land and project scope change; necessity of forest location for administrative structures.

Ratio Decidendi: Withdrawal post-challenge shows initial application impermissible; Public Trust Doctrine mandates protection, penalty ensures compliance; separate projects but fresh appraisal needed on necessity (Paras 21-24).

Result: OA disposed; penalty imposed; I.As closed.

Table of Content
1. applicants challenge ec for non-disclosure of forest land. (Para 1 , 2)
2. alleged concealment requires ec revocation. (Para 3 , 4)
3. moef&cc notes undisclosed forest activities need fresh ec. (Para 5 , 6)
4. respondents claim separate port and board projects. (Para 7 , 8 , 9)
5. forest clearance application withdrawn due to land constraints. (Para 11 , 12 , 13 , 14)
6. applicants reiterate concealment; no activity without clearance. (Para 15 , 16 , 17 , 18 , 19 , 20)
7. public trust doctrine mandates environmental protection. (Para 21 , 22 , 23)
8. oa disposed; future applications scrutinized. (Para 24 , 25)
9. rs.10 crores deposit ordered; ias closed. (Para 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 4^th 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

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2024 Supreme(Online)(NGT) 1196

NATIONAL GREEN TRIBUNAL CHENNAI (SOUTHERN ZONE BENCH)Pushpa Sathyanarayana, Judicial Member, Satyagopal Korlapati, Expert MemberPradeep Babu Tandel Somnath Temple – AppellantVersusUnion of India – RespondentOriginal Application No.49 of 2022 (SZ)|I.A. Nos.122 of 2022 & 15 of 2024 (SZ)

Public Trust Doctrine requires state agencies to protect environment; penalty (Rs.10 Cr deposit) imposed on project proponent for impermissible forest clearance application post-EC due to non-disclosure, ensuring due application of mind before refiling.

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)