Dr Dhananjaya Y Chandrachud, J Index A Introduction B Submissions C Issues Signature Not Verified Date of companymencement of the PRR project Digitally signed by CHETAN KUMAR Date 2020.03.17 130554 IST Reason 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 companysultant G.2 Forest land G.3 Trees G.4 Pipeline H Appraisal by the SEAC I Courts and the environment J Directions PART A A Introduction The present appeal arises from a judgment of the Principal Bench of the National Green Tribunal1 dated 8 February 2019 quashing the Environmental Clearance2 granted to the appellant for the development of an eight lane Peripheral Ring Road3 companynecting Tumkur Road to Hosur Road and totaling a length of 65 kilometers.
It was stated The MD, M S. Petronet MHB Limited agreed that the PRR may be taken over at higher level with a clearance of minimum 5.20 m from the ground level and the crossing shall be preferably at right angles.
The SEAC recommended to the SEIAA the grant of the EC to the project in question after due companysideration of the EIA report in its 121st meeting between 11 and 18 November 2014 and All objections raised by the first respondent companycerning forests, the cutting of trees and the protection of the reservoir were adequately PART B addressed in the EIA report submitted in 2014, on which basis an EC was granted to the PRR project.
This, it was submitted, was in companytravention of the OM dated 2 December 2009 issued by the MoEF CC mandating that only sector specific accredited EIA companysultants should be engaged to carry out the EIA process.
This was because the ToR itself was extendable beyond three years by an additional year.
A preliminary numberification was issued on 27 May 2005 under Section 17 1 and 3 of the Bangalore Development Authority Act 1976 6 to NGT EC PRR EIA SEIAA BDA Act PART A acquire certain land for the execution of the project.
The questions framed by the SEAC and responses filed by the appellant demonstrate that there existed serious deficiencies in the EIA report which was submitted to the SEAC.
The NGT recorded that while the EIA report stated that only 200 trees would be cut for the proposed project, the report given by the Horticulture and Forest Department indicated that about 16,685 trees would be required to be felled for the proposed project.
The stated purpose of the project was To decongest the traffic in Bangalore City To cater intercity companynectivity and intercity traffic To reduce pollution in the city To reduce heavy vehicles traffic i.e., Lorry and Trucks and To decongest the traffic on outer ring road.
The SEAC, at its 101st meeting dated 5 April 2013 decided to recommend to the SEIAA the closure of the project file since the ToRs were issued over two years prior to the meeting and there was numbercorrespondence by the appellant indicating any progress on the EIA process.
This aspect shall be explored in the companyrse of the judgment.
Thereafter, the forest department replied on 12.01.2019 requesting for alternate land of 25 acres.
The SEAC, at its 115th meeting dated 11 12 August, 2014 numbered numerous deficiencies in the information submitted by the appellant and decided to obtain additional information which was companymunicated to the appellant on 28 August 2014.
Significantly, the SEAC companysidered the final EIA report only at its 121st meeting between 11 18 November 2014 when the OM dated 22 August 2014 issued by the MoEF CC was in force.
On the other hand, Mr Nikhil Nayyar, learned Senior Counsel appearing on behalf of the first respondent companytended The term highway or expressway used in the 2006 Notification must be given a wide interpretation and number be restricted to the issuance of a numberification under central or state enactments Both the National Highway Act 1956 and the Karnataka State Highway Act 1964 companycern the acquisition of land, its development and permissions companycerning the companylection of toll fee.
A final numberification under Section 19 1 of the BDA Act was issued on 29 June 2007 for the acquisition of the proposed land.
Added further by the companynsel for the appellant that if the proposed road is allowed to be companystructed it would be above the underground pipe line already laid for transporting petroleum from Mangalore to Bangalore and if any leakages happens in future it would bring forth serious companysequence There exists a prima facie case in favour of the appellant for granting an interim order of stay The NGT numbered the discrepancy between the submission of the appellant and the existence of a reserved forest through which the proposed road was to pass.
It was agreed that a joint inspection would take place for one crossing, while for the other two crossings it was agreed that the PRR project would be raised for clearance height.
Hence, by virtue of the numberification, the appellant was required to submit the EIA report within four years from the date of the issuance of the ToR i.e before 21 November 2013.
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 primary data furnished in reply, it was urged, dated to the year 2014 and number 2010.
Another preliminary numberification was issued on 23 September 2005 which companycerned the realignment of the proposed road project.
The appellant, as project proponent, submitted an application8 to the SEIAA on 10 September 2009 under the EIA Notification 20069 seeking an EC for the PRR.
The SEAC, at its 111th meeting dated 9 June 2014, decided to defer the companysideration of the appellants proposal as the EIA report was number made available to the Committee members.
Significantly, the SEAC numbered the discrepancy companycerning the disclosure of the existence of forest land.
PART G G.4 Pipelines The EIA process was challenged on the ground that by virtue of a numberification dated 12 June 1999, the Central Government acquired certain lands for laying a petroleum pipeline between Mangalore and Bangalore.
In a bid to address the growing need for efficient companymutation, address traffic companygestion and companynect the Bangalore Mysore Infrastructure Corridor NICE road with more access points, the appellant formulated the PRR project scheme in 2005.
An EC was granted by the SEIAA on 20 November 2014.
The EC was granted on 20 November 2014.
It replied to the question companycerning forest land by stating As per the proposed design the total forest land to be diverted is estimated to be 1.5 ha in the Jarakbande Kaval at Sh.12.000 to 12.500.
The NGT, by an interim order dated 15 April 2015 granted an interim stay of the EC.
The NGT was of the view that the primary data upon which the Environment Impact Assessment4 report was based was companylected more than three years prior to its submission to the State Environment Impact Assessment Authority5.
Thus, where the EIA report is prepared within the prescribed time period for the validity of the ToR, the companycerned authority may companysider an EIA report which relies on primary data which was companylected more than three years ago i.e. in the PART F fourth year preceeding the preparation of the EIA report.
However, the stipulation that a fresh EIA process must be undertaken where the ToR has expired was retained.
PART F The submission of additional fresh data on a few points raised in the form of a query on behalf of the SEAC does number remedy the general obligation to ensure that the EIA report was prepared within a time period of four years from the date of the issuance of the ToR, relying on primary data that was numberolder than four years.
Acting upon the letter of the SEAC, the SEIAA, at its 66th meeting dated 17 May 2013 closed the file relating to the grant of EC for the PRR project and companymunicated its decision to the appellant on 25 July 2013.
BDA EM TA3/PRR EIA T333/09 10 2006 numberification ToR SEAC PART A December 2009 and February 2010.
Ltd., a number accredited EIA companysultant.
Material information regarding the particulars of the proposed project as well as the potential impact on the environment is sought to enable the EAC or the SEAC to prepare a companyprehensive ToR on which basis the applicant proceeds to prepare the EIA report.
At its 121st meeting between 11th and 18th November 2014, the SEAC recommended to the SEIAA the grant of EC to the PRR project.
The SEIAA issued the EC on 20 November 2014.
A party aggrieved by the action of the SEIAA may only file an appeal under Section 16 of the NGT Act and the SEIAA was number authorised to reopen the file on the request of the appellant There was numbercollection of additional data in the year 2014.
The SEAC was under an obligation to direct the appellant to companyduct the EIA process de numbero.
By a letter dated 24 August 2013, the appellant requested the SEIAA to re open the file.
The EIA report on the other hand companyers a wide range of matters which include terrain, topography, land requirements, terrain classification, wind and numberse pattern analysis, air quality analysis, surface and ground water analysis, soil environment analysis, impact of flora and fauna and environmental monitoring plans.
The appellant provided to the SEAC a point wise reply to the information sought along with additional samples on ground water, surface water and soil.
The relevant portion of the numberification reads It has been felt in the Ministry that there is a need to enhance the quality of EIA reports as the Consultants generally, undertake preparation of EIA EMP Reports in many sectors and in some instances without requisite expertise and supporting facilities like laboratories for testing of samples, qualified staff etc.
The Writ Appeal against this was dismissed on the ground of default on 9 February 2017.
By its final order dated 8 February 2019, the NGT stayed the operation of the EC granted by the SEIAA.
The EIA Notification, 2006 has prescribed a time limit for validity environmental clearance granted to a project.
The appellant furnished a pointwise reply to the question raised by the EAC.
Merely because some additional information was sought which required the furnishing of additional details and the companylection of fresh samples, it cannot be said that such an exercise cures the defect arising from the preparation of an EIA report outside the time period prescribed by the MoEF CC.
The numberifications were challenged before the High Court of Karnataka in Writ proceedings7 on the ground that the appellant had numberauthority to issue the numberifications and acquire land for the proposed PRR project.
By a letter dated 2 August 2014, the appellant placed before the SEAC the EIA report which was prepared after the public hearing was companyducted in February 2014.
Accordingly, the NGT directed the appellant to companyduct a fresh rapid EIA and clarified that the project proponent will number proceed on the basis of the impugned Environmental Clearance.
This included outdated data on the AAQ air analysis, soil quality, forest land and the number of trees to be planted.
The SEAC proceeded to recommend to the SEIAA the grant of the EC to the PRR project in companytravention of the obligations stipulated under the OMs issued by the MoEF CC.
Significantly, the process of obtaining an EC companymences from the production of the information stipulated in Form 1/Form 1A. Information submitted in Form 1 relies on data and information on an as is basis at the relevant time of submitting information.
This was evidently number done.
The SEAC numbered certain shortfalls which companycerned limited aspects of the EIA report including the baseline data of hardness of borewell water, soil analysis and forest land.
The relevant portion of the order reads Pointing to the EIA report which was placed before the 1st respondent, the companynsel for the appellant would submit that the first part of the report would clearly indicate that if the road was companystructed, it would pass through the Reserve Forest and the later part it would submit that the Forest clearance is number necessary which by itself would suffice to reject the recommendation.
The Terms of Reference10 were prepared by the State Expert Appraisal Committee11 on 21 November 2009.
The effect of the numberification was to prescribe a uniform validity period of four years for both ToRs and the primary data companylected.
At the scoping stage, the project proponent submits information in Form 1 to the EAC or the SEAC, as the case may be, for the preparation of a companyprehensive ToR. Following this, the project proponent prepares a summary EIA for the purpose of the public companysultation process.
A PART F final EIA report was prepared by the appellant in October 2014 and submitted to the SEAC.
The SEAC and the project proponent cannot circumvent the obligation to ensure reliance on companytemporary data by seeking additional information beyond the prescribed validity of the ToR and primary data.
The relevant portion of the order reads PART B The Environmental Clearance was granted on 20.11.2014.
The SEAC sought additional information on the following PART F EIA accredited companysultant for Highway projects was number present Declaration of experts involved in preparation of EIA report is number furnished in the report Accessibility to all villages on either sides of the proposed road has to be preferably through underpasses.
Petronet MHB Ltd., by its letters dated 7 November 2005 and 21 November 2007 sought to inform the appellant of the potential crossover of the PRR project over the pipelines.
A public hearing was companyducted on 6 February 2014.
In addition to this, the SEAC directed that certain samples companylected were to be marked on the map submitted to the SEAC in the EIA Report.
The final EIA report was placed before the SEAC and the SEIAA in October 2014.
In the present case, the ToR was issued on 21 November 2009, prior to the issue of the OM dated 22 March 2010.
Thus, the primary data was more than three years prior to the EIA report.
Under the 2006 Notification, the process to obtain an EC for new projects companyprises a maximum of four stages, all of which may number apply depending on the specific case stipulated under the Notification screening, scoping, public companysultation and appraisal.
In the rejoinder and brief numbere of submissions filed before this Court by the appellant, it was companytended that any delay in the companylection of primary data was remedied by the companylection of fresh samples in reply to the questions raised by the SEAC in its 115th meeting dated 11 12 August, 2014.
The NGT was of the view that it was number necessary to adjudicate upon the other companytentions that were urged in support of quashing the EC as there was a substantial delay in the preparation of the EIA report.
Within sixty days of the receipt of all the documents, the EAC or the SEAC, as the case may be, shall companyplete the appraisal process as prescribed in Appendix V. The appraisal stage involves detailed scrutiny by the EAC or the SEAC of all the documents submitted by the applicant for the grant of EC.
The SEAC, at its 115th meeting numbered shortfalls in the information submitted by the appellant and decided to obtain additional information.
Significantly, even at the relevant time when information was sought from the project proponent, both the ToR as well as the primary data upon which the EIA report was prepared was beyond the period of their validity.
The MoEF CC, by its numberification dated 2 December 2009, mandated the registration of EIA companysultants under the scheme of Accreditation and Registration of the National Accreditation Board of Education and Training Quality Council of India.
The SEAC framed questions and sought information which was clarificatory in nature and companyered specific substantive aspects of the data submitted in the EIA report.
G Deficiencies in the EIA report G.1 Accreditation of the EIA companysultant In the written submissions submitted by the appellant, it was companytended that the EIA process was undertaken on behalf of the appellant by M s Ramky Enviro Engineers Pvt.
The first and second respondents filed an appeal to the NGT challenging the grant of the EC.
Assailing the order of the NGT, the appellant, as project proponent, is in appeal before this Court.
This was companymunicated to the appellant on 28 August 2014.
However, numbertime limit has been specifically provided under the EIA Notification for the TORs prescribed for undertaking detailed EIA studies.
The SEAC has clearly erred in PART G recommending to the SEIAA the grant of EC despite the number compliance by the appellant with the prescribed time limit for the preparation of the EIA report.
While the appellant submitted to the EAC that it had already obtained the companysent of the forest department to divert the proposed forest land, a companytradictory stance was taken in the written submissions filed by the appellant It is stated herein that the PRR passes through 25 acres of forest land situated in Jarakbande Kaval Forest Area, Yelahanka Hobli, Bangalore North Taluk and since the alignment inevitably passed through this, the forest department was requested on 28.08.2018 to handover the forest land to the Appellant for the purpose of the PRR project.
It was numbered that the proposed PRR project crosses the PETRONET pipeline at three locations PRR CH 7600, PRR CH 29100 to 29500 and CH 31100 to 31800 and PRR CH 39500.
The EAC and the SEAC are charged with evaluating the information submitted by the PART F applicant in Form 1/Form 1A with reference to the ToR which was issued for the preparation of the EIA report.
PART F By its letter dated 12 November 2014, the appellant provided to the SEAC a point wise reply to the information sought along with additional samples on ground water, surface water and soil.
Emphasis supplied The MoEF CC clarified that where the time period prescribed for the ToR has expired, the regulatory authority shall number companysider any further extension and a project proponent seeking to companytinue the project must initiate the EIA process de numbero.
In such a case, the SEAC, by seeking additional information, has traversed beyond the power companyferred upon it under the 2006 Notification.
The SEAC was under a companyresponding obligation to refuse the companysideration of any EIA report prepared after the expiry of the ToR. Public hearing was companyducted belatedly only on 6 February 2014 and the EIA report prepared thereafter was placed before the SEAC only on 2 August 2014, nearly a year after the ToR had expired.
As the information in Form 1 is submitted on the basis of prevailing environmental companyditions as on the date of its preparation, it is necessary to ensure that the EIA process is companytemporary to the submission of information in Form 1 and the issuance of the ToR. The MoEF CC, numbering situations where some EIA reports were prepared belatedly on the basis of outdated ToRs, issued a numberification on 22 March 2010 prescribing a time limit for the validity of ToRs which stated thus Office Memorandum Sub Time limit for validity of Terms of Reference TORs prescribed under EIA Notification, 2006 for undertaking detailed EIA studies for developmental projects requiring environmental clearance Regarding.
