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Judgment
Environment Clearance dated 21st April, 2014 bearing no. J 13012/12/2011-IA.II (T) granted by the respondent no. 1-Ministry of Environment, Forest and Climate Change (for short MOEF&CC) to the respondent no. 4- M/s Welspun Energy (U.P) Pvt. Ltd. for setting up 2x660 MW Super Critical Coal based Thermal Power Project at Village Dadri Khurd, Teshil Mirzapur, Uttar Pradesh is assailed in the present Appeal.
The appellant no. 1-Debadityo Sinha, alumnus of Banaras Hindu University, holding a Masters in Environment Science and Technology, claims to be an Environmentalist working in the field of protection and conservation of environment individually and as a founder of Vindhya Bachao Abhiyan.
The appellant no. 2-Shiv Kumar Upadhyay, states that he is a senior journalist based in Mirzapur and is a co-founder of Vindhya Bachao Abhiyan. The appellant no. 3- Mukesh Kumar states that he is a student of M.Sc.(Tech.) Environmental Science and Technology from Banaras Hindu University at Rajiv Gandhi South Campus of the University in Mirzapur and he is a member of students 'ECO One' organisation specifically formed for active involvement of the students and staff members of the campus in conservation measures in the region.
According to the appellants, the Project Proponent suppressed facts to obtain Environment Clearance and there have been violations of the provisions of EIA Notification, 2006 from the beginning of process of grant of clearance till the end; and crucial aspects have been over-looked by the Expert Appraisal Committee and MoEF&CC.
Initially, the appellants submit, a proposal for setting up of the project in question was proposed to be located near villages-Hazipur- Katya, Pahai Goura and Katya, Tehsil Jakhnia and Saidpur, District Ghazipur, UP with land requirement of 850 acres for power plant, green belt and ash pond as per Form-1 dated 31st December, 2010 annexure A-2. However, when the proposal came up for consideration for grant of TOR before the 22nd meeting of the reconstituted Expert Appraisal Committee of Thermal Power and Coal Mine projects held on 4th -5th April, 2011, the information regarding the changed location-District Mirzapur situate at 140Km from the previous location- was submitted as follows:-
"The proposal is for setting up of 2x660 MW Super Critical Coal based Thermal Power Plant at villages Dadri Khurd, in Mirzapur Sadar Taluk, in Mirzapur Distt. in Uttar Pradesh Coal requirements will be 6.4 MTPA. Coal will be obtained from domestic coal block through SECL/NCL/CCL mines...........
There are no National Parks, Wildlife Sanctuaries, Tiger/Biosphere Reserves etc. within 10 Km of the site. Danti RF, Mirzapur RF, Patehra RF and Gorthara RF is situated within 10 Km from the project site."
The EAC did not ask the project proponent to re-file the information in Form 1 and after considering the said facts found the site suggested in District Mirzapur as unsuitable for the development of the proposed project and accordingly deferred the consideration of the proposal with the direction to the project proponent to look for more acceptable alternative sites in the following terms:
"The proposed site may be in the flood plain of river or very close to it and has forests in the vicinity. The Committee also noted that the other sites identified were rejected by the project proponent itself. The Committee therefore, decided that the project proponent shall identify more alternative acceptable sites and accordingly deferred the proposal for re-consideration at a later stage."
In the 24th meeting of re-constituted EAC (Thermal) held on 2nd May, 2011 the project proponent along with his consultant M/s J.M Environet Pvt. Ltd. gave a presentation and provided the following information as per the minutes of the meeting-
"The proposal is for setting up 2x660 MW Super Critical Coal based Thermal Power Project at villages Dadri Khurd, Mirzapur Sadar Taluk in UP. Land requirement will be 1100 acres, out of which 798 acres is un-irrigated barren land and 77 acres is waste land. 875 acres land will be used for plant and 225 acres land will be used for railway and pipeline corridor. The project proponent submitted that the Ganges River is about 22Kms from the proposed site and site is not in flood plain of the Ganges. The project proponent also submitted survey of India toposheet in confirmation of their submission. It was also informed that M/s Welspun Energy (U.P) Pvt. Ltd. had conducted pre-feasibility for availability and route of water pipeline from Upper Khajuri Dam till the proposed project site. The project proponent informed that they have started collection of AAQ data since April and completed monitoring before onset of monsoon. The Committee decided the same can be used for preparation of EIA Report."
The appellants submit that the location of the project possibly lying in the flood plain or close to it and in the vicinity of the forest- had prompted the EAC to seek alternative site for the project; but the EAC did not discuss the issue of forest land involved in the project and proceeded to prescribe detailed Terms of Reference even when the collection of baseline data was already started prior thereto- vide copy of the minutes of 24th meeting of EAC held on 2nd and 3rd May, 2011 annexure A-4 and TOR letter dated 15th June, 2011 annexure A-5.
Finding fault with this scoping project as aforesaid, the appellants further submit that a fresh Form-1 mentioning the project location at District Mirzapur was submitted by the project proponent on 3rd December, 2011 annexure A-6 well after the grant of TOR and preparation of draft EIA report.
According to the appellants the public consultation process the main component of EIA process suffered from many lacunae:
A. Inadequate publicity of public hearing. No means other than publishing notice of the public hearing in Amar Ujala, Mirzapur and Hindustan Times, New Delhi were adopted by the authorities, which consequently lead to unawareness of public hearing among the local rural folk, thereby preventing real participation of the locals in the public consultation process.
B. Public hearing was conducted on 7th April, 2012 at Village Dadri Khurd, Tehsil Sadar, Mirzapur under influence of political leaders, police force and armed private individuals and the locals were denied entry to the public hearing premise.
C. Summary EIA and draft EIA were not made electronically available.
The appellants submit that the EAC recommended project for EC overlooking its own observations, siting guidelines and without considering the representations/responses of the affected people, namely Banaras Hindu University and site visit report dated 15th September, 2013. The appellants referred to the following siting criteria laid down by the respondent no.1-MoEF&CC:
A. Availability of adequate uncultivable and unused land for erecting power plant structures;
B. Vicinity to the railway line for laying railway siding for coal transportation;
C. Suitability of land from topography, geological aspects;
D. Environmentally suitable, absence of sensitive areas and major settlements.
The appellants further submitted that the EAC did not verify facts at ground level, particularly, the facts: that the major area of the project site is fertile prime agricultural land used for agriculture grazing purpose surrounded by reserved forest, and the railway line proposed to carry coal from 20 Km distance would pass through forest land requiring forest clearance under Forest (Conservation) Act, 1980. EIA report- Chapter III, Section 3.5.2.1 submitted by the project proponent reveals, the appellants pointed out, that the project is located in a valuable Kaimur sand stone reserve. The appellants submit that the EAC overlooked these facts. As regards the location at Mirzapur, the project proponent had advocated for its selection due to NCL coal reserves within 100 km and presented the EIA report on assumption that coal source was from Kaimur NCL mines. However, the EAC in its meeting held on 20th March, 2013 decided to go ahead with imported coal from Indonesia until domestic coal was available without giving thought to reconsideration of the location of the project. The appellants submitted that the EAC did not consider economic and environmental impacts of transporting water from River Ganga to Upper Khajuri reservoir and then to the project site. The appellants added that the EAC had previously decided to send a sub-group comprising of C.R. Babu, Shri T.K. Dhar,Shri N.K. Verma and a representative of MoEF to carry out site inspection and yet without conducting the site inspection as previously decided it had dealt with Appraisal Process in a most casual manner.
The appellants submit that the EAC did not deal with the representation made by the affected people and blindly relied upon the statement of the project proponent claiming that the several critical issues and deficiencies in the EIA, suppression of the existence of forest land, non assumption of the water resources and human health raised by the affected persons particularly, the Banaras Hindu University were resolved in the meeting with the BHU.
The respondent no. 1-MoEF&CC filed brief affidavit dated 15th January, 2015 making a claim that the Environment Clearance in question was granted after following due procedure as laid down under EIA Notification, 2006 and amendments thereto with reference to the EAC meetings held on April 4th and 5th 2011 and May, 2nd and 3rd, 2011 for grant of Term of Reference-EACs consenting to use of baseline data collected from April, 2011 and to three EAC meetings held in March, November, 2013 and March, 2014 to highlight deliberations involved in the process of grant of Environment Clearance. The respondent no.1- MoEF further explained that since a sub-group of EAC could not visit the site, the EAC delegated the said task to State Government officials of Irrigation Department and further extensively deliberated upon the issue of firm water availability for the project and the impact of water drawl by the project.
Despite service of notice to respondent no.2- State of Uttar Pradesh and respondent no.3-Uttar Pradesh Pollution Control Board choose not to file their replies. According to them they had very limited role in the entire process and therefore, no replies are necessary.
The respondent no.4-the project proponent filed a detailed reply, dated 24th December, 2014(page 272-546 Vol-I-A) with voluminous documents annexure R-1 to R-48. Respondent no. 4 admitted that the project proponent had filed Form-1 dated 31st December, 2010 annexure R-30 for grant of EC to the project proposed to be setting up at District Ghazipur. However, it contended that the project proponent has chosen to re-file the Form 1 dated 31st March, 2011 annexure R-2 changing the proposed project site to district Mirzapur on 31st March, 2011 and intimated all the Members and Member Secretary of the EAC regarding the change of proposed project site from District Ghazipur to District Mirzapur through an e-mail, along with pre-feasibility report annexure R-3 and the UP Power Corporation Limited as well as Ministry of Coal had granted approval to such changes vide letters dated 1st April, 2011-annexure R-4 and letter dated 24th August, 2011- annexure R-6 respectively. The respondent no. 4 further submitted that the EAC was informed by the project proponent in the 24th meeting held in May, 2011 that it has started collection of the AAQ data since April, 2011 in order to complete the monitoring before the onset of the monsoon and this was approved by the EAC. According to the respondent no.4 as per the MoEF guideline the project proponent was required to collect baseline data for one season except for the monsoon season and as such the collection of baseline data for the purpose and April, 2011 and June, 2011 was started and the MoEF was informed of the same and its use for formulating the EIA report vide letter dated 12th May, 2011.
The respondent no.4 further submitted that the project site is located well beyond the highest recorded flood level of River Ganga situated at a distance of 17 km from the project. According to the respondent no. 4 there has been no concealment of any material facts, particularly as regards the presence of reserved forests and wildlife; and this fact has been acknowledged by the District Forest Officer and MoEF vide letters dated 20th April, 2011- annexure R-11 and letter dated 11th October, 2013- annexure R-12 respectively. The respondent no. 4 made reference to the EIA report (annexure R-13) in that regard. Respondent no. 4 in its reply referred to the minutes of the 13th meeting dated 25th March, 2015 and 26th March, 2014 wherein the biodiversity and conservation plan prepared by the consultant of the project proponent was found to be forwarded to the MoEF and to the Expert Member from Wildlife Institute of India, Dehradun and approved by the MoEF thereafter as well as by the Chief Conservator of Forest (Wildlife). The respondent no. 4 further submitted that the MoEF has duly taken into account the impact on the water resources and approved the project after all the concerns were satisfactorily replied by all the senior officials of the Government of UP as recorded in the minutes of the EAC dated 26th March, 2014. The respondent no. 4 further submitted that the EIA report reveals the efforts and arrangements made to recycle the waste water to attain zero discharge and in inescapable scenario to discharge the quantity of waste water in the nearest drain after meeting the CPCB standards; and as such there will be no significant impact on the surface water quality and discharges shall be curbed to the maximum extent. The respondent no. 4 submits that due care has been taken for dust emission and commercial use of the fly ash generated by the Thermal Power Plant. According to respondent no. 4 the public consultation process was duly conducted as per EIA Notification, 2006; and the public hearing was conducted in the presence of Additional District Magistrate, Regional Officer of the UPPCB, Deputy Superintendent of Police, SDM District Sadar and other top police and administrative officers of District Mirzapur and the proceedings were videographed and the minutes were recorded annexure R-24 and R-25.
As regards the concerns raised by the Banaras Hindu University and Vindhya Bachao Manch, the respondent no. 4 submitted that the meeting was held with the BHU on 8th October, 2014 and 10th October, 2014 wherein after deliberations the respondent no. 4 gave its commitment to the installation of the ESP's with 99.9% efficiency, to the compliance with conditions of CWC ash utilization plan etc. and has adequately dealt with it by settling the issue. The respondent no. 4 further submitted that it had submitted a detailed point wise clarification to the points raised in the site inspection report by the Vindhya Bachao Manch on 6th February, 2014. Respondent no. 4 further submitted that the proposed Thermal Power Plant would be a boost to sustainable development in the power deficit State of UP and would generate both electricity and employment to improve the socio-economic standards of the locals in the District of Mirzapur. Generally the respondent no.4 controverted the case of the appellants regarding violations of the EIA Notification and suppression/misrepresentation of the material facts with reference to the proceedings in the Appeal and solicited dismissal of the present Appeal.
Rival pleadings warrant answers to the following question:
Whether the proposal moved for grant of Environment Clearance by the respondent no.4- M/s Welspun Energy (U.P) Pvt. Ltd to the proposed thermal power project in question was duly appraised and considered by the concerned authorities.
We have heard the parties at length and considered the record of the case including the written submissions tendered by the appellants dated 11th April, 2016 and the respondent no. 4 dated 8th April, 2016. State players in the contest, namely, MoEF and Uttar Pradesh Pollution Control Board played supplementary role in support of their roles played in the present case.
It is true that there is ever growing demand for the power/electricity for the development and to meet this demand the UP Power Corporation Ltd. entered into a power purchase agreement with respondent no.4- M/s Welspun Energy (U.P) Pvt. Ltd. However, any decision over the issue involving environmental concerns needs to be taken as warranted by the Section 20 of the National Green Tribunal Act, 2010. Principles of Sustainable Development, Precautionary Principle and Polluter's Pay Principle are guiding stars in a journey towards such decision as rightly pointed out in M.C. Mehta's Case [(2004) 12 SCC 118: M.C. Mehta vs. Union of India and Ors.] referred to by the respondent no. 4- M/s Welspun Energy (U.P) Pvt. Ltd. The development has to be a sustainable one for ensuring intergenerational equity. The respondent no. 4- M/s Welspun Energy (U.P) Pvt. Ltd has quoted only a part of the para 48 of the Judgment delivered by the Hon'ble Apex Court in M.C. Mehta's Case (Supra) to highlight its submissions. For making complete sense of what the Hon'ble Apex Court has to say. One needs to read the entire para. We, therefore, reproduce the entire para 48 herein below for ready reference:
Development and the protection of environment are not enemies. If without degrading the environment or minimising adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, development has to go on because one cannot lose sight of the need for development of industries, irrigation resources and power projects etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. We may note that to stall fast the depletion of forest, a series of orders have been passed by this Court in T.N. Godavarman case regulating the felling of trees in all the forests in the country. Principle 15 of the Rio Conference of 1992 relating to the applicability of precautionary principle, which stipulates that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation, is also required to be kept in view. In such matters, many a times, the option to be adopted is not very easy or in a straitjacket. If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable damage to economic interest. In case of doubt, however, protection of Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment.
A great caution has, therefore, to be exercised before any developmental activity is allowed to go ahead in order to ensure protection of the environment, which in the words of the Hon'ble Apex Court seeks precedence over economic interest.
While concluding the submissions, Learned Counsel appearing on behalf of the respondent no.4- M/s Welspun Energy (U.P) Pvt. Ltd, fairly made a submission that the project proponent is also open and willing to comply with any additional safeguards in addition to the safeguards stipulated under the EC. We have, therefore, have to cautiously tread our course and reach a balanced decision in the present case.
Having realised the need to take such measures necessary for the purpose of preventing and improving the quality of environment and protecting, controlling and abating environmental pollution, the Central Government in exercise of its power under Section3 of the Environment (Protection) Act, 1986 read with clause d sub-section 3 Rule 5 of the Environment (Protection) Rules, 1986 devised an elaborate mechanism/ procedure to grant prior EC to the projects or the activities as per the EC Regulations, 2006. Environment Clearance Regulations, 2006 categorized the projects and activities into Category A and Category B based on the spatial extent of potential impacts and potential impacts on human health, natural and manmade resources. Admittedly, the project in question is a Category A project and EC Regulations, 2006 envisage in the process of grant of EC therefor the following material stages:
Scoping,
Public Consultation,
Appraisal and
Decision for acceptance or rejection of the proposal.
In the stage of scoping the Expert appraisal Committee determines detailed and comprehensive Terms of Reference (ToR), addressing all relevant environmental concerns for the preparation of an Environmental Impact Assessment (EIA) report in respect of the project for which prior EC is sought on the basis of information furnished in the prescribed application Form-I/I-A including Terms of Reference proposed by the applicant, outcome of site visit if considered necessary and other information that may be available with the Expert Appraisal Committee. The Terms of Reference so determined are required to be conveyed to the appellants/project proponent by Expert Appraisal Committee within 60 days of the receipt of Form-I. Pertinently, the EAC at this stage itself is conferred with the discretion to recommend to the regulatory authority the rejection of the application for environment clearance and the regulatory authority i.e. MoEF has a discretion to accept such recommendation of the EAC or to reject the application for prior EC. This mechanism build in the EC, Regulations, 2006 emphasises the importance of this stage of scoping, particularly of Form-I therein, which lays the foundation of the Environmental Impact Assessment of the proposed project for its objective appraisal that follows.
Next in the chain of the process of evaluation of the potential impacts of the project on environment is the stage of public consultation, a process by which the concerns of the locally affected persons and others, who have plausible stake in the environmental impact of the project are ascertained. The public Consultation has two components 1) Public hearing and 2) obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project. Appendix IV to the EC Regulations, 2006 prescribes the manner in which its one of the components- a public hearing has to be carried out. At the outset Appendix IV to the EC Regulations, 2006 prescribes that the public hearing shall be arranged in a systematic, time bound and transparent manner ensuring widest public participation at the project site(s) or in its close proximity district wise, by the concerned State Pollution Control Board. Needless to reiterate that the public hearing is carried out for ascertaining concerns of locally affected persons. Response in writing from other concerned persons having a plausible stake in environment or activity are also required to be obtained as a part of another component of public consultation and as such responses are invited by placing on the website of the concerned State Pollution Control Board, the summary of EAC report prepared in the format given in Appendix III-A by the applicant along with a copy of the application in the prescribed form. After completion of the public consultation the appellants is under obligation to address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP, and prepare a final EIA report and submit it to the concerned regulatory authority for appraisal.
Following the public consultation the Expert Appraisal Committee is required to carry out appraisal of the proposal for grant of environment clearance before it categorically recommends to the regulatory authority concerned either the grant or rejection of the application for environment clearance. Appraisal involves detailed scrutiny by the Expert Appraisal Committee of the application and other documents, like the final EIA report, outcome of public consultations including public hearing proceedings in a transparent manner in a proceeding to which the applicant is invited for furnishing necessary clarification in person or through authorized representative. Thus, a conspectus of things previous to the appraisal is taken by the Expert Appraisal Committee for the purpose of objective evaluation of merits of the proposal for grant of EC and the recommendations are made thereupon.
The regulatory authority, para 8(ii) of the EC Regulations, 2006 stipulates, shall normally accept the recommendations of the Expert Appraisal Committee; and in case where it disagrees with the recommendations of Expert Appraisal Committee, it shall request reconsideration by the Expert Appraisal Committee while giving the reasons for the disagreement within 45 days of the receipt of the recommendations from the Expert Appraisal Committee. The Expert Appraisal Committee in turn has to consider the observations of the regulatory authority and furnish its view on the same within a further period of 60 days and the decision taken by the regulatory authority after considering the view of Expert Appraisal Committee is regarded as final. This shows an amount of discretion that is also vested with the regulatory authority-in the present case MoEF and the regulatory authority is expected to exercise such discretion in reasonable manner. Para 8 (vi) of the EC Regulations, 2006 voices the sanctity of information or data material to screening or scoping or appraisal or decision on the application in following terms:
"Deliberate concealment and or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation or prior environment clearance granted on that basis".
The reason for such information or data to be sacrosanct is evident from the entire mechanism which is so interconnected that one false or misleading information and/or its deliberate concealment data in the process necessarily has cascading effect on rest that follows.
Keeping this process in mind we have to examine the submissions made by the rival parties. The environment clearance dated 21st August, 2014 makes reference to the letters dated 31st December, 2010, 12th May, 2011, 29th June, 2012, 14th January, 2013, 11th February, 2013, 6th February, 2014, 21st February, 2014 and 6th May, 2014 vide copy of the EC at annexure A-1 to the application. Communication dated 31st December, 2010 is a Form-I submitted by the respondent no.4- project proponent seeking prior EC for setting up the thermal power plant in question at Hazipur- Katya, Pahai Goura and Katya, Teshil Jakhnia and Saidpur, District Ghazipur, UP under the hand of Mr. Abhinav Mayank authorized signatory for project proponent. This fact is not disputed, however, respondent no.4- submitted that the project proponent had duly filed the Form-I for the proposed project site to be located at District Mirzapur on 31st March, 2011 and had also intimated all the Members and the Member Secretary of Expert Appraisal Committee regarding the change of the project site from District Ghazipur to District Mirzapur through an email along with the pre-feasibility report on 31st March, 2011 as per annexure R-2 and R-3 to the reply. Reading of annexure R-3 to the reply reveals that it is a copy of email send by Suranjan Sarkar on behalf of the respondent no.4- M/s Welspun Energy (U.P) Pvt. Ltd. enclosed therewith soft copy of the duly filed Form-I and PFR in respect of 2x660 MW Thermal Power Project in UP to various addresses. According to respondent no. 4 there is mere denial of the email dated 31st March, 2011 by the appellants without there being any basis whatsoever. The respondent no.4 to buttress its contentions referred to the reply filed by the MoEF which makes reference to the proposal for District Mirzapur being considered by the EAC in its 22nd and 24th meeting held on April 4th and 5th, 2011 (erroneously referred to as 4-5) and May 2-5, 2011 for grant of ToR and to the minutes of the EAC meeting dated May 4th and 5th, 2011 at annexure A-4 (page 80).
The respondent no.4 also made reference to disclosure made by Dr. M. Ramesh, Scientist 'D' from MoEF before the Tribunal on 5th April, 2016 in support of the fact that the project was assessed on basis of Form-I dated 31st March, 2011 and the acknowledgment of Mr. C.R. Babu of having acknowledged the consideration of the project on the basis of Form-I dated 31st March, 2011 sent by E-mail. Dr. M. Ramesh, Scientist 'D' produced a file containing Note sheets from pages 1 to 11-authenticated copies of which find place on our record at vol-II (documents). We have perused the Note sheet pages 1 to 11. At page 11 a reference is found made to the communication received from respondent no.4 in respect of the present appeal and passing on the information that the appellants could not access revised Form-I from MoEF record and the respondent no.4-company having already submitted revised Form-I and circulated it amongst all EAC Members and Member Secretary through E-mail dated 31st March, 2011. Dr. M. Ramesh appeared to have made endorsement on the said Note sheet for checking the records for the same and nothing more. However, our scrutiny has not revealed any reference to revised Form-I dated 31st March, 2011 in the said Note sheet except one on page 11 as disclosed herein above and placing of the proposal of respondent no.4 for setting up of thermal power plant at Village Dadri Khurd, Teshil Mirzapur, Uttar Pradesh in 24th meeting of EAC held on May 2nd and 3rd, 2011 for determination of ToRs at page 2 of the said Note sheet dated 10th June, 2011.
Material portion of the minutes of EAC meeting dated May 4th and 5th, 2011 at annexure A-4 (page80) reads as under:
"2.10 2x660 MW Super Critical Coals Based Thermal Power Plant of M/s Welspun Energy UP Private Ltd. at villages Dadri Khurd, in Mirzapur Sadar Taluk, in Mirzapur Distt. in Uttar Pradesh- reg. TOR.
"The proposal was earlier placed for consideration in the 22nd meeting held during April 4-5, 2011 wherein the Committee noted that the proposed site may be in the flood plain of river or very close to it and has forests in the vicinity. The Committee also noted that the other sites identified were rejected by the project proponent itself. The Committee therefore decided that the project proponent shall identify more alternative acceptable sites and accordingly deferred the proposal for re-consideration at a later stage.
The proposal was again placed for re-consideration for determination of terms of reference for undertaking EIA/EMP study as per the provisions of EIA Notification, 2006. The project proponent along with its consultant M/s J.M Environet Pvt. Ltd. gave a presentation and provided the following information:
The proposal is for setting up of 2x660 MW Super Critical Coal Based Thermal Power Plant at Villages Dadri Khurd, in Mirzapur Sadar Taluk, in Mirzapur Distt. in Uttar Pradesh. Land requirement will be 1100 acres, out of which 798 acres is unirrigated barren land and 77 acres is waste land. 875 acres land will be used for plant and 225 acres land will be used for railway and pipeline corridor. The co-ordinates of the plant site are at Latitude 24°58'51.2''N to 25°00'5.43''N and Longitude 82°39'34.1''E to 82°40'52.71''E. Coal requirements will be 6.4 MTPA. Coal will be obtained from domestic coal block through SECL/NCL/CCL mines. Area requirement for ash/pond dyke will be 225 acres including green belt. Water requirement will be 45 MCM/annum, which will be sourced from the Upper Khajuri Dam and Ganga River through a pipeline about a distance of 4km and 17 km respectively from project site. There are no National parks, Wildlife sanctuaries, Tiger/Biosphere reserves etc. within 10 km of the site. Danti RF, Mirzapur RF, Patehra RF and Gorthara RF are situated within 10 km from the project site.
The project proponent submitted that Ganges River is about 22 Kms from the proposed site and site is not in the flood plain of the Ganges. The project proponent also submitted Survey of India toposheet in confirmation to their submission. It was also informed that M/s WAPCOS has conducted pre-feasibility for availability and route of water pipeline from Upper Khajuri Dam till the proposed project site.
The Committee noted that details of water availability need to be extensively examined and a detailed source of water sustainability study shall be submitted.
The project proponent informed that they have started collection of AAQ data since April and complete monitoring before onset of monsoon. The Committee decided that the same can be used for preparation of EIA report.
Based on the information provided and presentation made, the Committee prescribed the following specific ToRs for undertaking detailed study and preparation of EMP......."
Nowhere in the minutes of the 22nd and 24th EAC meeting held on April 4th and 5th, 2011 and May 2nd and 3rd, 2011 respectively we find reference to revised Form-I dated 31st March, 2011 except the fact that it referred to thermal power project at Village Dadri Khurd, Teshil Mirzapur, Uttar Pradesh.
In the sur-rejoinder filed by the respondent no.4 (page 2070) the respondent no.4 submitted that in addition to E-mail sent by the project proponent to the EAC and revised Form-I was submitted to the MoEF by hand on 31st March, 2011 which was duly signed by Mr. Ravikant Verma, General Manager, Corporate Affairs with proper verifications; and letter of MoEF had informed that the revised Form-I by hand on 31st March, 2011 was misplaced and as such MoEF made a request to the project proponent to provide a copy of the revised Form-I and as such the revised Form-I was submitted by hand to the MoEF on 3rd December, 2011. A copy of the Board resolution dated 25th March, 2011 authorizing Mr. Ravikant Verma to sign Form-I is annexed to sur-rejoinder at annexure R-48 a copy of the Basic Information Form signed by the authorized signatory Mr. Ravikant Verma dated 31st March, 2011 is also produced along with sur-rejoinder at annexure R-49.
The appellants specifically contends in the backdrop of the aforesaid facts as disclosed that the determination of ToR was done on the basis of a basic information- a concise document circulated for the convenience of EAC and not Form-I dated 31st March, 2011. Learned Counsel appearing on behalf of the appellants compared the data furnished through basic information document annexure R-49 (Page 2092), copy of the Form-I dated 31st March, 2011 at page no. 2362 and fresh Form-I dated 3rd December, 2011 submitted after grant of ToR dated 15th June, 2011 (Page 86) and pointed the following discrepancies.
Basic Information
Form-I along with pre-
Fresh Form-I
feasibilty report
Land
Requirement-
Total area of land is 850
Land
875
acres,
1100
acres,
out
of
acres. Government land:
Government land
11.1%
total land 798 acres is
9.88%,
private
land
private land 88.9%, single
unirrigated
barren
90.12% unirrigated land
cropped
agricultural land
land,
77
acres
is
93.88%,
barren
land
1.78%
barren
land
waste land, 875 acres
5.25%
water
bodies
97.50%,
water
bodies
for plant
and
225
0.87%.
0.62% human settlement
acres
is for
railway
0.02%.
and pipeline corridor.
Learned Counsel appearing on behalf of the appellants further pointed out that the signatures of the authorised signatory in all the documents, namely, Form-I dated 31st March, 2011(page383), Basic Information(page 2094) and Form-I dated 31st December, 2011(page112) vary and lacks proper verification as per EIA amendment dated 1st December, 2009. Learned Counsel appearing on behalf of the respondent no.4 submitted in counter that there is no bar on the EAC to consider the basic information form as the source of information and the project proponent stands by the information submitted in the Form-I dated 31st March, 2011 sent vide e-mail to the EAC Members and as submitted during the course of the arguments as the true facts available to it at the relevant times, and the verification is merely a procedural defect which can be cured and cannot be held fatal to the credibility of the Form-I. In support of his submission Learned Counsel appearing on behalf of respondent no.4 quoted the observations made by the Hon'ble Apex Court as follows:
Kiran Shankar Kathore V Arun Dattaray Sawant (2014) 14 SCC 162 Para34. "... The Court, however upheld the view of the High Court holding that on perusal of the affidavit, there was substantial compliance with the prescribed format. Even when some defect was found in the verification of the election petition, it was held that the said defect is also curable and cannot be held fatal to the maintainability of the Election Petition. In the present case we are concerned with the affidavit which a candidate seeking election is required to file along with his nomination form. At the same time, we proceed on the basis that if there is a substantial compliance with the requirements contained in the said affidavits, in the sense that there is a disclosure of required particulars including assets/liabilities it can be treated as adequate compliance with the provisions of the Act, Rules and Orders."
Shaikh Sail Haji Abdul Khayumsab V Kumar and others (2006) 1 SCC 46 Para 10. "All the rules of procedure are handmaid of justice. The language employed by the draftman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice."
Para 13:. "... A procedural law should not ordinarily be constructed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed."
Para 14: "Processual law is not a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."
Learned Counsel appearing on behalf of the respondent no.4 added that the Form-I is initiation of the entire process and acts as a guide and cannot bind the EAC. In support he quoted from the Judgment delivered in R. Vermani's case (R. Veeramani vs. Secretary, Public Works Department and Ors.: Appeal No. 31 of 2012) by the Southern Zone Bench of Tribunal as follows:
Para 56: "....The application is merely an expression of the desire of the proponent to commence a particular project and Form IA is intended for the mentioning of the safeguards necessary for the said new project. Thus the application is only initiation of the entire process. It can only be a guide; but it is neither conclusive nor decisive on the project and cannot control the EC. The contends in Form I can only be one of the guiding factors, but they cannot bind either of the committees, Appraisal or Assessment. The Appraisal Committee is an independent body consisting of experts from different fields and equally, the Assessment Committee. They have to consider all available materials before taking a decision to grant or reject the request. They have to make n independent study and decide the necessary parameters and safeguards for a given project.
Thus the EC is wisdom driven of the Members of the Committees and no doubt, it is not driven by the data and particulars furnished by the proponent in the forms alone. The authority cannot base their decision on the application alone or the contents of the Form. After the application is made along with the safeguards stated by the proponent in Form I and Form IA, the Appraisal Authority at the time of appraisal, can add number of safeguards for the project..."
If one looks at para 7(i) stage II of the EC Regulations, 2006 dealing with the process of scoping it is not difficult to find that all the information furnished in the prescribed application Form-I, forms the basis of detailed and comprehensive Terms of Reference addressing all relevant environmental concerns for the preparation of Environmental Impact Assessment Report in respect of the project for which prior EC is sought in as much as potential impacts of the project are assessed with reference to the information revealed in Form-I. Though, there is no bar on the EAC to consider basic information as a source of information, the EAC has to consider details of the activity in relation to:
(i) Construction, operation or decommissioning of the project, involving actions, which will cause physical changes in the locality (topography, land use, changes in water bodies).
(ii) Use of natural resources for construction or operation of the project (such as land, water, materials or energy, especially any resources which are non-renewable or in short supply)
(iii) Use, storage, transportation, handling or production of substances or materials, which could be harmful to human health or the environment or raise concerns about actual or perceived risks to human health.
(iv) Production of solid wastes during construction or operation or de-commissioning.
(v) Release of pollutants or any hazardous, toxic or noxious substances to air.
(vi) Generation of Noise and Vibration, and Emissions of Light and Heat.
(vii) Risks of contamination of land or water from releases of pollutants into the ground or into sewers, surface waters, ground water, coastal waters or the sea.
(viii) Risk of accidents during construction or operation of the project, which could affect human health or the environment.
(ix) Factors which should be considered (such as consequential development) which could lead to environmental effects or the potential for cumulative impacts with other existing or planned activities in the locality.
(x) Environmental sensitivity.
Furnished in Form-I
Before detailed and comprehensive Terms of Reference addressing all relevant Environmental concerns for the preparation of Environmental Impact Assessment Report are determined, it is worthwhile to note, the EAC is expected to be pro-active in as much as to look for other information as to would be available, and secondly it has discretion to reject the application at the stage of scoping upon the total view of the material before it and in that context observations made by the Southern Zone Bench of this Tribunal in R. Veeramani's Case regarding the role of the EAC and its authority to vet the information furnished and be bound by it are misplaced as regards the present case. However, in view of the discrepancies pointed out in basic information, Form-I and fresh Form- I furnished by the respondent no.4 as pointed earlier, legitimate questions as regards the objective consideration of the information furnished to the EAC for determining the detailed and comprehensive ToRs arise,. In our view all the information furnished and considered by the EAC for the determination of ToR is a raw material for the Terms of Reference determined from which the draft EIA report takes shape- a material step for further stages of public consultations, appraisal, recommendations of EAC and ultimately for grant of EC.
Learned Counsel appearing for the appellants submitted that the EIA Notification, 2006 makes it mandatory that all the projects which requires EC need to undergo the scoping process and the appraisal not done on the basis of proper scoping process on the basis of Form-I is a substantial non-compliance. He invited our attention to the observations made by this Tribunal at para 120 of the Judgment delivered in S.P. Muthuraman's case (O.A. No. 37 of 2015): S.P. Muthutraman vs. Union of India & Ors.0 Judgment dated 7th July, 2015 reported in Manu/GT/0016/2015 "that the provisions of this enactments are substantive and mandatory......if compliance is not made to the provisions of this enactments it will totally frustrate the Polluters Pay Principle and thus Polluters Pay Principle adversely affect the environment, protection of which is the sole objective of the Act of 1986....." Thus, we have no hesitation in holding that the provisions of Notification 2006 are mandatory and procedural simplicitor". We do subscribe to this view in relation to the present case for the simple reason that even the smallest lapse in furnishing the information or data material to screening or scoping or appraisal or decision on the application would leave lasting effects possibly adverse impacts on the environment or sustainable development, if information or data is misleading.
Nature of the land involved in the project and its expanse are material aspects in determination of adverse impacts of any project on the environment which going by its definition at Section 2(a) of Environment (Protection) Act, 1986 includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings and other living creatures, plants micro-organism and property. According to the appellants from the stage of scoping to the final stage of appraisal the project proponent projected a misleading picture about the nature and expanse of the land involved as follows:
(i) Form I dated 3.12.2011- In response to query at sl. 2.1-Barren land 97.58 % (pg 99)
(ii) Final EIA report- (1) sl no. 9 Present land use at the site- "mostly barren" pg 565
(2) para 2.4.1- Factors considered for site selection-
"Availability of adequate uncultivable and unused land for erecting power plant structures"(pg 579)
(iii) Letter dated 12.07.2011- Reasons given to Ministry of Coal for change of site from Dist. Gazipur to District Mirzapur which states "barren and single crop land" and "No forest land involved"(pg 412)
He further pointed out that use of such wrong terms on which the impugned EC is based found its expression in the EC dated 21st August, 2014 in the following terms "land required will be 875 acres, out of which 15.63 acres will be single cropped agricultural land; 859.37 acres will be barren land". In support of its contentions that it is not a barren land the applicant invited our attention to the following:
(i) Study report of project site under taken by WAPCOS.
(ii) Revenue records of project site in village Dadri Khurd, Teshil Mirzapur, Uttar Pradesh.
(iii) Additional affidavit filed by the appellants on 5th April, 2016
(iv) Photographs of irrigation structures check dams, grazing and agricultural lands.
Para 3.1 of Area Drainage Study Report of the project site undertaken by WAPCOS for the project in question reveals that from the observations made by the WAPCOS team upon the site visit and from Study of survey data of plant area, the team observed that most of the plant area was found covered with trees/vegetation and grass; and though no agricultural activity was noticed on entire plant area, the team found that most of the land was being used for grazing and tree plantations and thus dense forest was noticed at South-eastern part of the plant area at higher elevation of about 220 to 233m. Revenue records of the project site produced by the appellants during hearing on 2th April, 2016 describe the land as 'Parti Bhumi' i.e. fallow land and not a barren land. Additional affidavit of the appellants dated 5th April, 2016 placed before us the relevant extracts from National Resource Census Project Report 2004-2005 of Indian Space Research Organization and Wastetland Atlas of India titled "Control Sheet". Definition of fallow land as found in the National Resource Census Project Report is as under:
Fallow land: These are the lands, which are taken up for cultivation but are temporarily allowed to rest, un-cropped for one or more seasons, but not less than one year"
Barren land from its very description conveys a meaning that it is unfertile not supportive of any vegetation. Definition of barren land in "Wasteland Atlas of India" describes it as: The rock exposures of varying lithology often barren and devoid of soil and vegetation cover. Thus absence of any vegetation is hallmark of a barren land. Description of the land for the project as a 'barren land' is therefore, a misleading description.
Learned Counsel appearing on behalf of the appellants further invited our attention to IL&FS Technical EIA Guidelines Manual for thermal power plant- August, 2010 prepared for the MoEF, Government of India. Purpose of developing such sector specific technical guideline manual is to provide clear information on EIA to all the stakeholders. It gives guidelines for site selection of coal based thermal power station and general siting factors (page 2748 to 2749). At the outset it exhorts the stakeholders to recognise that no forest land shall be used for non-forest activity and no prime agricultural land shall be converted into industrial site. As regards the site selection for thermal power station, it makes reference to the Guidelines of Central Electricity Authority, Government of India for site selection of coal based thermal power station which advice the selection of site near to coal source, accessibility by road and rail. These guidelines spells out the priorities for site selection as follows:
First priority is given to the sites those are free from forest, habitation and irrigated/agricultural land. Second priority is given to those sites that are barren, i.e. wasteland, intermixed with any other land type, which amounts to 20% of the total land identified for the purpose.
Guidelines for site selection of coal thermal power station set by MoEF are made available in the said manual as under:
- Locations of thermal power stations are avoided within 25km of the outer periphery of the following:
-metropolitan cities;
-National park and wildlife sanctuaries;
-Ecologically sensitive areas like tropical forest, biosphere reserve, important lake and coastal areas rich in coral formation;
- The sites should be chosen in such a way that chimneys of the power plants do not fall within the approach funnel of the runway of the nearest airport;
- Those sites should be chosen which are at least 500m away from the flood plain of river system;
- Location of the sites are avoided in the vicinity (say 10km) of places of archaeological, historical, cultural/religious/tourist importance and defense installations;
- Forest or prime agriculture lands are avoided for setting up of thermal power houses or ash disposal.
In this backdrop the contentions raised by the appellants that there was deliberate concealment of forest land by the appellants in the present case gains significance. Learned Counsel appearing on behalf of the appellants submitted that the project proponent concealed the presence of forest within the plant boundary in Form-I dated 3rd December, 2011 as well as in the EIA Report (Page 621) with the statement that there is no forest land within plant boundary.
Perusal of the Form -1 dated 03-12-2011 (page no. 93) reveals clear statement of the fact at entry in serial no. 21-23 of the Form-1 that no forest land is involved and as such, the proposal does not call for clearances under the Forest Conservation Act, 1980. Perusal of the EIA Report (page no. 621) also reveals a categorical assertion that no forest land is within the plant boundary. It is pointed out by the Appellants from the Form-1 that the project envisages approach road connecting SH-5, 15.5 kms distance railway line from Sarsogram railway station and 17 kms of pipeline (31kms as per the EIA Report page no. 601) to fetch water from River Ganga and all this passes through the Reserve Forest.
To highlight this fact the Appellants drew our attention to the table no. 3.18 in the EIA Report (page no. 668) which is reproduced herein below:
S.
Name of R. F.
Distance
from
Project
Direction
from
No.
boundary
Project Boundary
1
Danti RF
Adjacent to the project site
N
2
Barkachha RF
8.5 km
NW
3
Mirzapur RF
Adjacen
S
4
Sarson RF
5.5km
SE
5
Malua RF
8.5km
SW
6
Karaunda RF
5km
SW
7
Patehra RF
5km
SW
8
Bahuti RF
6.5 km
W
9
Newaria RF
10 km
SW
10
Nanuti RF
7 km
E
11
Golhanpur RF
6.5 km
E
It is very clear from the aforesaid table that project site is surrounded by reserved forest from all sides. The Appellants also invited our attention to the photographs at page no. 159-159A of the actual site to point out that the SH-5 passes through the reserved forest area as could be noticed from the signboard of forest department ("this road belong to Forest Department Regional Forest Officer Madihan DFO, Mirzapur, Forest Division").
The project Proponent relied upon the site visit reports dated 01-08-2008 and 19-11-2012 to contend that the area where the power plant is proposed is not a notified reserved forest/protected forest and/or forest like area. As against this the Appellants have relied upon the area drainage study report of the project site undertaken by WAPCOS. Photographs (page no. 159-159A), satellite imagery- particularly National land use and land cover mapping using multi-temporal AWiFS data available at Bhuvan website.
It is noticed that the WAPCOS team upon visit to the project site (30-09-2011) at Dadri Khurd Village found dense vegetation/forest at Southern-Eastern part of the plant area (page 165). It is also correct that Land Use/Land Cover (LULC) map of District Mirzapur (page no. 2990-2992) shows project area mostly occupied by deciduous forest and part of it by agriculture, plantation. On the other hand, the Project Proponent relies upon the judgments delivered in Application No. 19(THC)/2013 dated 08-08-2014 titled as Nisraga Vs. Assistant Conservator of Forests as well as in New Okhla Bird Sanctuary case [(2011) 1 SCC 744: in In Re construction of park at Noida near Okhla Bird Sanctuary]. The Hon'ble Apex Court in In Re-construction of park at Noida near Okhla Bird Sanctuary case observed as follows:
"In support of the applicant's case that there used to be a forest at the project site he relies upon the report of the CCF based on site inspection and the Google Image and most heavily on the FSI Report based on satellite imagery and analyzed by GSI application. A satellite image may not always reveal the complete story. Let us for a moment come down from the satellite to the earth and see what picture emerges from the government records and how things appear on the ground. In the revenue records, none of the khasras (plots) falling in the project areas was ever show as jungle or forest.."
Moreover, the Appellants admit in their affidavit dated 05-04- 2016 (page no. 2974) that satellite image per se cannot be relied upon as 100% accurate evidence for forest area. However, it proceeds further to state that the time when the said judgments were passed Google Earth Imagery was most common and Bhuvan Application Services were not developed; and Bhuvan Satellite imagery is based on advance technologies like Multi- temporal(satellite images collected repeatedly over a long time for a year or more), multi-layered(superimposing images from different satellites and sensors) and multi-spectral (involving different radiations other than IR radiation), which when collaborated with ground data gives fairly accurate information about the present land use and land cover. Even accepting this statement to be correct its collaboration with the ground data is indispensable for giving fairly accurate information. Ground data collection is, therefore, a key to answer the question whether the land was a forest or forest like area.
We have therefore to see what site inspection reports have procured for the benefit of decision making. Site visit report dated 01-08-2008 makes a reference to the piece of land in Village Kushiyara and Sangra as having been identified in Thesil Lalganj, Haliya, District Mirzapur and having being identified as a forest like area having specified number of trees mentioned therein. It does not say anything about Village Dadri Khurd. Site Inspection Report dated 19-11-2012 (page no. 508) reveals that the inspection of the project site was purportedly carried out by team of Forest Officials, Scientist from MoEF, Project Proponent, Villagers from Mirzapur and Sh. Balram Singh, President, Van Upvan Conservation of Nature Environment Society. The team after going through the reports of the DFO Mirzapur dated 16-08-2013 and 13-09-2013 as well as revenue records of Village Dadri Khurd drew conclusions as follows:
Thus from the records available the proposed Welspum Thermal Power Plant site plan included no notified reserved forest/protected forest and forest like area recognized in Mirzapur district in compliance of Hon'ble Supreme Court order.
The two Gatas 180 and 216 jha with an area of 1.5 ha included in proposed site plan of Welspum Thermal Power Plant is revenue recorded Jhari (forest). The ownership belongs to UP Govt. and it is in process of transfer to the company. If this is used for non-forestry purpose, it requires approval of Central Govt. under Forest (Conservation) Act.
Poking holes in this report, the Appellants pointed out that the report is signed only by two officials namely: Dy. Conservator of Forest (Central) and Chief Conservator of Forest (Central) almost a year after and not by all the members of the team.
It is further pointed out that Mr. S. N. Mishra, DFO, Mirzapur Forest Division who was the member of the site inspection team addressed a letter dated 16-08-2013 (page no.2051) to the Chief Conservator of Forest(Central) , MoEF making a statement that the project site has 50% of forest like area (page no. 2052). However, there is also a communication dated 13-09-2013 written by the same DFO Mirzapur to the CCF Central, MoEF with reference to list of forest like area prepared by District Level Committee mentioning that no land from the project area has been identified as forest like area. Pertinently, we do not find any collection of ground data in relation to forest density in the area inspected by site inspection team. This leaves us in wilderness of assumptions and presumptions with no categorical answer as to the nature of the area based on ground data collections.
Undoubtedly, the approach road, rail line and water line have to pass through forest lands, and these being material components of the project, the Project Proponent ought to have revealed the involvement of the forest land, in Form-1 filed for the purposes of getting EC Paragraph 8 (v) of the EC Regulation, 2006 stipulates that clearances from other regulatory bodies or authorities shall not be required prior to receipt of applications for prior environmental clearance of project or activities, or screening, scoping and appraisal or decision by regulatory authority concerned, unless any of these is sequentially dependent on such clearance either due to requirement of law, or for necessary technical reasons.
Office Memorandum dated 09-09-2011 issued by MoEF stipulates that EC is issued only after stage -1 forest clearance has been submitted by Project Proponent and if same is not submitted within time limit prescribed under the said Office Memorandum proposal of the EC would stand rejected and the entire process of obtaining EC will have to be initiated de novo.
With reference to the guidance document for taking up of non-forest activity in forest dated 19-12-2012, learned Counsel appearing on behalf of the Appellants submitted that the Project Proponent has to apply simultaneously for Environment and Forest and NBWL clearances and a complete clearance is obtained only when requisite clearances are obtained by Project Proponent. As observed above the proposal for grant of EC involves forest land. It is therefore, not correct to submit that the forest clearance is not a criteria for grant of EC under the EIA Notification.
Learned Counsel appearing on behalf of the appellants further brought to our notice that not only the project involves use of forest land for coal transportation, water pipeline but there is no discussion in the EIA report regarding the potential impact of the fragmentation of the forest and disturbance of wildlife due to the passing of the railway line for coal transportation, construction of transmission line, water pipeline and approach road. From the facts noticed herein above, it is evident that the project is surrounded by forest and involves 'Parti Bhumi' (fallow land) thereby signifying least anthropogenic activity at or around the project site and, thus the issue of wildlife in the area deserves serious consideration. EIA report (page 668) and the table provided therein (Page 669, 675) make mention of having not noticed any endangered species within the area of project site and the area lying in 10 km of the radius therefrom. However, the appellants pointed out to the response received by them to the RTI query dated 27th August, 2013 (page 161, 162) providing the list of Schedule I species- Sloth Bear, Chinkara, Black Buck, Bengal Monitor, Peafowl, crocodile (Magar) etc. within the project site and 10 km radius area. The project proponent relied upon the bio-diversity assessment and conservation plan and submitted that the EAC in its meeting dated 23rd March, 2014 had found the site report/plan in order. It has been pointed out that the site plan was prepared after the EIA report and public hearing and no study was undertaken to assess the impact of the project and its ancillary activity like coal transportation, water pipeline, approach road, ash ponds and such other impacts on the wildlife in the region. Para 4.3.1.3 (page 1058) of the report adds credence to this contention in following terms: "this survey needs to be carried out with the wildlife experts and the State Authority, Department to identify the areas or forest need all the conservation and management interventions which are highly crucial." Facts revealed before us do not show that any member of the EAC or Expert member of WII conducted any site visit of the project to asses the gravity of exception taken to the project upon the issues raised in relation to the forest and wildlife. Appraisal of the project in this regard, therefore, becomes questionable.
Water being important component of environment appraisal of the project for accessing its potential impacts on water resources in course of the process of appraisal is also of material importance for answering the question before us. The project envisages drawl of 36 mcl of water from Ganga and its transportation through 24 km of pipeline to upper Khajuri reservoir and thereafter to make supply of the water through 7 km of pipe line to the project site. Upper khajuri reservoir is a rain fed reservoir which according to the project proponent is meant for irrigation purposes. However, the appellants contend that the water in the upper Khajuri reservoir is not only for irrigation purposes but also used for human consumption and caters to the needs of the wildlife in or around the said reservoir. In this context Learned Counsel appearing on behalf of the appellants submitted that upper Khajuri reservoir feeds water to lower khajuri reservoir lying on the River Khajuri- a tributary of Ganga and there has been representation made by Banaras Hindu University regarding the potential impacts of taking of untreated contaminated water from Ganga to upper Khajuri reservoir and thereafter to the lower Khajuri reservoir which is catering to the need of Banaras Hindu University; and the EAC had completely over looked the critical issues raised by the Banaras Hindu University in that regard and blindly relied upon the misstatement made by the project proponent that the issue with BHU had been resolved.
We find from the record, a letter dated 18th September, 2013 (page 174) addressed by Registrar of the Banaras Hindu University to the Secretary, Government of India, MoEF, New Delhi voicing concerns of the University in following words:
I would like to inform you that a Thermal Power Project with capacity 1320 MW Coal based is going to be installed at nearby Village-Dadari Khurd in District-Mirzapur which is 10 km. away from Rajiv Gandhi South Campus of BHU at Barkachha. It is pointed out that the Rajiv Gandhi South Campus is constituent of BHU having running more than 20 self-financing undergraduate and post-graduate courses and other academic activities. A good number of students, teaching and non-teaching staff and their family members are residing in the campus.
In this connection, we have received a letter of General Secretary, a NGO-"Vindhya Environmental Society" and representation of resident of that area. Further, we have also examined by our Faculty Member who belongs to field of Environmental Science & Technology and he has submitted an Environment Impact Assessment Report of 1320 MW bout proposed Coal based Thermal Power Project, which are self explanatory(copy enclosed).
It is needless to mention here that the negative impact of this project may adversely affect their health of students, teachers and other staff residing in the Rajiv Gandhi South Campus. We would like to highlight the fact that entire drinking water supply of the RGSC is from lower Khajur Dam which is fed by upper Khajuri Dam. Any industrial activity in the upper khajuri Dam will jeopardize our water supply.
Keeping in view of the above fact, I request you to kindly consider for reviewing the shifting of place much ahead from the premises of Rajiv Gandhi South Campus, Barkachha so that the ambiance and environment of this area may keep intact.
This communication from the Registrar enclosed Environment Impact Assessment Report concerning the project in question prepared by Dr. A.K. Pandey, Assistant Professor, Environment Science and Technology, Rajiv Gandhi South Campus, BHU.
The respondent no. 4, it appears, made a presentation before the EAC that the issues raised by BHU were resolved in the meeting held on 8th March, 2014 and 10th March, 2014. In that regard our attention has been invited to minutes of the meeting conducted by the project proponent, BHU Faculty and Campus Members on 8th and 10th March, 2014. Reading of these minutes would persuade a reader to believe that discussion was held on following major points:
Air Impact and dispersion modelling
Water withdrawal scheme
Water utilization
Waste water management system
Coal Quality
Coal Transportation.
and after three hours of deliberations it was decided that Welspun Energy UP Pvt. Ltd-Project proponent would be forwarding the following commitments to BHU:
Installing of ESP with 99.9% efficiency and operating the ESP
Commitment to comply all condition stipulated by CWC on water withdrawal
Comply with the commitment of ash utilisation plan
Commitment to operate ETP
It is further revealed that BHU desired to be part of environmental and social management review during the operational phase of the project and the project proponent should submit six monthly compliance report along with online data as per EC condition to the University along with other stakeholders. Significantly, the minutes of meeting do not disclose what exactly the discussions were in the meeting for thrashing out technical issues involved in the major topics purportedly discussed. The EAC also did a lip service to the process of appraisal by merely recording its nod to the presentation made by the project proponent in following terms:
6.The pp has submitted point wise response to BHU vide their letter dated 29th January, 2014 reg. The adverse impacts on the residents of Rajiv Gandhi South Campus due to the project. The same were presented before the Committee. The PP held meetings with BHU on 08.03.2014 and 10.03.2014 and detailed discussions were held on all the issues and provided satisfactory replies. The issues raised by the NGO, Vindhya Environmental Society in their letter to BHU were also discussed in the said meetings in detail. The Minutes of the said meeting were also submitted before the Committee. As desired by BHU, the commitments regarding installation and operation of ESP (with 99.9% efficiency) and ETP, complying with all conditions stipulated by CWC on water withdrawal and complying with proposed ash utilization plan shall be submitted to BHU. The committee recommended that the environmental cell of the PP shall also work in close coordination with BHU.
To compound this issue further the appellants have pointed out that the persons who raised their concerns did not participate in the meeting nor they authorize any person to hold the meeting on their behalf; and Professor Dr. Vijay Kishna who is shown to have attended the meeting held on 8th and 10th March, 2014 in the minutes annexure R-26 (page 1183) asserted vide email dated 23rd April, 2014 that the said meetings were not authorized by Banaras Hindu University and he participated in his personal capacity (page 2061) annexure R-30; and this fact was brought to the notice of Secretary, MoEF by appellants no. 3 vide email dated 25th April, 2014 annexure R-31. It was therefore, incumbent upon the MoEF to have thoughtfully considered the relevant record and sought clarification from EAC before proceeding to grant the EC. Nothing of this sort is done in the present case.
Learned Counsel appearing for the appellants submitted that transporting the massive quantity of Gangetic untreated/contaminated water to the rain fed upper Khajuri reservoir is bound to change the water quality of upper Khajuri reservoir and consequently have impact on the people downstream using the water for human needs. It is further submitted that water withdrawal of 36,000,000,000 litres annually would undoubtedly affect the ecological flow of Ganga and severely affect the Gangetic Biodiversity including Gangetic Dophins found in Mirzapur stretch; and it is wrongly presumed that water withdrawal during monsoon from Ganga would leave no impact on Gangetic environment when there is a record of decline in rainfall in past year with no sufficient water in river in monsoons vide statistical data of rainfall in District Mirzapur annexure A-28 (page 2058). According to Learned Counsel appearing for the appellants both competitive use of water from river Ganga and upper khajuri reservoir and its comulative impact on upstream and downstream have not been discussed in the EIA report. We do find substance in the submission made.
It is further pointed out that the Project Proponent revealed in Form-1 dated 03-12-2011 (entry serial no. 10, page no. 110) that the area in question does not fall in any important high quality or scarce resources zone (ground water resource, surface resource, forestry, agriculture, fishery, tourism and minerals), and the EIA report (page no. 633 and 634) disclosed that the project site does not fall in any economically viable zone as per Regional GSI map.
The Appellants further points out that the respondent no. 4 in its reply (page no. 342) made reference to the Geological and Mineral Map of District Mirzapur annexure R-47 to state that the District Mirzapur has presence of Alluvium rather than Kaimur sand stone. Coloured map produced at annexure R-58 (page no. 2924) shows that the project area is adjacent to Marihan identified as a Kaimur sand stone area which is an important mineral resource.
The record reveals that the Public Hearing was conducted by UPPCB on 07-04-2012 in village Dadri Khurd, District Mirzapur, after publishing the notice of the public hearing in a National Daily- 'Hindustan Times' Delhi edition on 04-03-2012 and in the local Daily- 'Amar Ujala' of the same date, and the meeting was attended by about 190 persons (page 121-127). Two fold exceptions is taken to this public consultation process firstly, that the notice ought to have been publicized in the National Daily published from Allahabad/Varanasi in order to ensure maximum publicity, and secondly, public hearing was not conducted in free and fair manner there being presence of men holding guns in the meeting as evident from a video clipping.
Perusal of the provision prescribing procedure for conduct of public hearing in Appendix IV of EC Regulations, 2006 reveals that notice of public hearing has to be advertised in one major National Daily and one Regional Vernacular Daily/State official language. The procedure stipulated does not say that it needs to be publicised in National Daily published from a particular place.
Learned Counsel for the appellants invited our attention to the purpose of public consultation of which the public hearing is one of the important component as mentioned at para 7 (III)(ii)(a). It is correct that public hearing is held for ascertaining concerns of local affected persons. However, the process of public consultation also envisages obtaining of responses in writing from other concerned persons having plausible stake in environmental aspects or project activity. Keeping in mind the procedure prescribed in clear terms at 3.0 under Appendix IV of EC Regulation, 2006. We are of the considered view that the procedure adopted for publication of notice of public hearing has been duly followed in the present case by its advertisement in national daily and local daily.
Additional Affidavit (page no. 2936-2944) with photographs filed by respondent no. 4-Project Proponent points out that other mode for publicity was resorted to by the Project Proponent with the speaker mounted van/jeep for making announcement regarding the public hearing. Exception taken on this ground, therefore, has no merit. However, as regards the conduct of the public hearing itself the videography has revealed the presence of gun toting men amongst the members attending the public hearing. Learned Counsel appearing on behalf of the respondent no. 4 submitted that Village Dadri Khurd being situated in backward Forest area, it is not unusual to find the locals moving with guns. Assuming this to be true it was necessary for policemen on duty to have dis-armed them before they entered the venue of the public hearing. Arms like guns are bound to strike fear in the hearts of men around and dominate their free will. It is, therefore, difficult to call this public hearing as a free and fairly conducted public hearing.
EC Regulations, 2006 lay down a chain of interconnected processes to make a complete mechanism required to assess the potential impacts of the project or activities on the environment made of several components. Every piece of information/data furnished and/or collected at every stage of the process is expected to be wholesome free from any twist or turn in order to truly aid the correct appraisal of the potential impacts of the project. This expectation of law is evident from the checks and balances provided in EC Regulations, 2006.
Cumulatively, therefore, the entire process of consideration and appraisal of the proposal to grant EC is found tainted so as to render it less credit worthy than the one expected by law and as such makes it even more difficult to suggest the safeguards in order to render the project sustainable one. We, therefore, answer the question raised herein above negatively. In our opinion, it is advisable to go through the entire process of EC afresh before green signal is given to the project.
We, therefore, allow this Appeal and pass the following directions:
The Appeal is allowed and EC dated 21-08-2014 is set aside.
Respondent no. 4 shall not carry out any developmental work at the project site.
The respondent no. 4 shall restore the area to its original condition.
Work of restoration is stayed for a period of two months.
In view of the above directions Appeal No. 79 of 2014 stands disposed of. M.A. Nos. 694 of 2014 and 511 of 2015 also stand disposed of.