Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(NGT) 3644

NATIONAL GREEN TRIBUNAL PUNE (WESTERN ZONE BENCH)
Dinesh Kumar Singh, Judicial Member, Vijay Kulkarni, Expert Member
Kheti Vikas Seva Trust – Appellant
Versus
Adani Enterprises Ltd. – Respondent
Appeal No.35/2020(WZ)|I.A. No.68/2020(WZ)

For the Appellants/Petitioners: None appeared
For the Respondents:Shri Vikram Nankani, Senior Advocate along-with Mr. Saurabh Kulkarni, Advocate and Mr. S. Bhatt, Advocates for R-1/PP, Mr. Ravi Patel, Advocate h/f Mr. Parth H. Bhatt, Advocate for R-2 & 5, Mr. Rahul Garg, Advocate for R-3 & 4/MoEF&CC

Challenge to environmental clearance dismissed after amendments excluded forest land and river, with tribunal confirming due EIA process and logical refutation of procedural/ecological allegations despite appellant's withdrawal.

Headnote:(A) National Green Tribunal Act, 2010 - Section 16 - Environment (Protection) Act, 1986 - EIA Notification, 2006 - Challenge to environmental clearance for greenfield copper refinery plant on forest land - Allegations of concealment of facts, misrepresentation in Form I and EIA report, non-compliance with ToR, faulty site selection, inadequate cumulative impact assessment, deficient studies on water bodies, mangroves, flora/fauna, air quality, fishing/agricultural communities, and public hearing objections - Subsequent amendment to EC excluding forest land and river flow area, transfer to new project proponent - Appellant withdrew appeal after reviewing responses confirming due process - Tribunal examined merits and found no infirmities as replies addressed allegations logically, original issues on forest and river rendered moot by amendments. (Paras 1-70)

(B) Environmental Clearance - Appraisal Process - Expert Appraisal Committee to examine EIA/EMP reports for ToR compliance; post-monsoon sampling justified by water availability; alternative sites evaluated on environmental and technical criteria including proximity to resources; cumulative impacts assessed in EIA Chapter 4; Technical Guidance Manuals advisory, not binding; public hearing concerns addressed via action plans and CER budget. (Paras 27-43, 67-68)

Facts of the case:
Appeal against environmental clearance for 1.0 MTPA copper refinery on 256.58 ha land including 102.39 ha reserved forest, alleging procedural violations and ecological risks near water bodies, mangroves, and communities. Respondents denied irregularities, cited comprehensive EIA studies. During pendency, EC amended to exclude forest land and river, transferred to subsidiary; appellant sought withdrawal.

Findings of Court:
Procedure followed in accordance with law for granting original and amended ECs; allegations refuted by detailed replies; appellant's withdrawal and tribunal's review confirm no surviving infirmities.

Issues: Validity of environmental clearance due to alleged concealment/misrepresentation, ToR non-compliance, inadequate impact assessments, forest land use, and public objections; effect of subsequent EC amendments excluding forest/river.

Ratio Decidendi: Environmental clearances upheld where EIA complies with ToR, EAC appraises adequately, and amendments resolve core concerns like forest diversion; tribunal verifies merits even on withdrawal to ensure no legal flaws.

Result: Appeal dismissed. No order as to costs. (Para 69-70)

Table of Content
1. appeal challenges ec for copper refinery on forest land. (Para 1 , 2 , 3)
2. concealment of trees and water bodies in form i/eia. (Para 4 , 5 , 8)
3. concealment of impacts on rivers and water bodies. (Para 6 , 7 , 16)
4. non-compliance with tor on r&r and water sampling. (Para 9 , 10 , 11)
5. improper alternative site selection ignoring ecology. (Para 12)
6. absence of cumulative impact assessment required. (Para 13)
7. deficient assessment of impacts on fishing/agricultural communities. (Para 14 , 15 , 25)
8. misleading information on mangrove proximity and impact. (Para 17)
9. underreporting of flora/fauna in reserved forest. (Para 18)
10. ignoring proposed biodiversity heritage site impacts. (Para 19)
11. deficient air quality modeling and baseline data. (Para 20 , 21 , 22 , 23)
12. prohibition of non-site specific industry on forest land. (Para 24)
13. rejoinder reiterates eia/tor violations and discrepancies. (Para 26 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56)
14. pp denies violations, affirms eia compliance and eac appraisal. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42)
15. moef&cc confirms due process in ec grant and amendments. (Para 43 , 62 , 63 , 64)
16. ec amendments exclude forest land and river flow. (Para 57 , 58 , 59 , 60)
17. appeal dismissed post-appellant withdrawal; ec valid. (Para 65 , 66 , 67 , 68 , 69 , 70)

JUDGMENT

1. This appeal has been filed under Section 16 of the National Green Tribunal Act, 2010, seeking the quashing of Environmental Clearance, dt. 08.05.2020, annexed as Annexure A-1 to the memo of Appeal granted to respondent No.1 Adani Enterprises Ltd. for the Greenfiled Copper Refinery Plant (1.0 MTPA) by respondent No.3 Ministry of Environment, Forest and Climate Change (MoEF&CC), located at villages Siracha, Navinal in Taluq Mundra, District Kutch at Gujarat.

2. In brief the facts of this appeal are as follows.

3. The total required land for the project is 256.58 ha, out of which 154.19 ha is non-forest land and 102.39 ha is reserved forest land. The land which is part of the project is part of 1500 ha of forest land, which has been granted Stage I forest clearance, however in favour of another entity, namely the Adani Ports and Special Economic Zone Ltd. The Adani Ports and Special Economic Zone has thereafter signed a Memorandum of Understanding (MoU) with the Project Proponent stating that after receiving the final forest clearance, the land will be transferred to the Project Proponent for the use of the project in question.

4. The impugned EC dated 08.05.2020 has been challenged as it suffers from various serious infirmities. It has been obtained by concealing critical facts as well as misrepresenting data in Form I as well as in the EIA Report, and the EAC has miserably failed to appraise the project and apply the laws in force.

5. As regards concealment/ misrepresentation of material facts in Form I, it is submitted that it has not been provided as to how many trees have to be cut at the project site. The EIA report merely mentions the presence of certain “shrubs”. Further it is mentioned that the reserved forest land is said to have several fully grown up trees that would have to be removed. The 102 ha of the project area is reserved forest land, which also has trees growing and not just “shrubs” but fully grown trees. A copy of the Form – I is annexed as Annexure A-2. Photographs of the trees are also annexed as Annexure A-3.

6. The Project Proponent has also mentioned the presence of the Dhaneshwari River within the project site and the Kotri Creek in the ‘buffer area’. However, this is contradicted by the information provided in Table 1.1: Environmental Setting of the Project Site of the EIA Report, which lists the following waterbodies in the vicinity:

“Dhaneswari river also referred as Danesri nadi (within the project site, W)

Kotri Creek (0.5 km, S) Khari nadi (1.9 km, W)

Gulf of Kachchh (3.9 km, S)

Nagavani nadi (4.7 km, E)

Phot n

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2024 Supreme(Online)(NGT) 3644

NATIONAL GREEN TRIBUNAL PUNE (WESTERN ZONE BENCH)Dinesh Kumar Singh, Judicial Member, Vijay Kulkarni, Expert MemberKheti Vikas Seva Trust – AppellantVersusAdani Enterprises Ltd. – RespondentAppeal No.35/2020(WZ)|I.A. No.68/2020(WZ)

Challenge to environmental clearance dismissed after amendments excluded forest land and river, with tribunal confirming due EIA process and logical refutation of procedural/ecological allegations despite appellant's withdrawal.

Cases Referred (1)

NATIONAL GREEN TRIBUNAL PUNE (WESTERN ZONE BENCH)
Dinesh Kumar Singh, Judicial Member, Vijay Kulkarni, Expert Member
Kheti Vikas Seva Trust – Appellant
Versus
Adani Enterprises Ltd. – Respondent
Appeal No.35/2020(WZ)|I.A. No.68/2020(WZ)